The Leaflet interviews an expert who seeks to expose corporate misconduct resulting in asbestos pollution in India.
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KRISHNENDU Mukherjee is a barrister and Indian advocate at the Doughty Street Chambers, London. He specialises in immigration, business and human rights-related issues. Mukherjee has worked on a film called ‘Breathless’ that raises awareness about victims affected by corporate misconduct from asbestos pollution in India. The film also highlights the civil liability against the due diligence duty of the companies.
Asbestos is a naturally occurring fibrous silicate mineral, which is scientifically proven to cause cancer via inhalation of its dust. It causes asbestosis, which is a notified disease under the Mines Act, 1952.
In Roro village, in Jharkhand, chrysotile asbestos (also known as “white asbestos”) was mined to produce chrysotile asbestos fibre by Hyderabad Asbestos Cement Product Limited. The mining was stopped in 1983. However, no safety measures, required for closure, restitution and removal of existing pollution, were taken. These steps were necessary to mitigate adverse health or environmental impacts. The result was that asbestos dust-based pollution continued.
In 2018, the principal bench of the National Green Tribunal (‘NGT’), in Delhi, in Sh. Kalyan Bansighh & Ors. versus HIL Ltd & Ors. (2018), ordered the scientific closure of the minefield. However, the order is yet to be complied with.
The Leaflet interviewed Mukherjee, who has represented the victims of asbestosis-based diseases and has helped them to claim compensation in India. He continues to engage with the victims of asbestos-based pollution in India through the ongoing process of claiming compensation.
Edited excerpts from the interview:
Q: How did you get engaged in this issue?
A: India has a significant asbestos problem. It is not banned here, and over 112 factories are producing asbestos-based products. However, asbestos was banned and restricted in European countries in the early 2000s. In these countries, it is fair to say that asbestos has not been properly used in manufacturing since the 1970s. But it’s still used in India.
The process of compensation, which was initiated in 2009, is still ongoing as and when people are diagnosed with it. We are trying to raise compensation claims in other areas as well such as against the use of silicosis.
Now, one of the things that we discovered about the asbestos industry in India was that the people who brought asbestos to India were from European companies. Turner and Newall were the first that started an asbestos company in Kymore, Madhya Pradesh. This was established way back in the 1930s. It was then sold to a Belgium company. This is the history of how asbestos came to India.
The reason why I got into this is that I had this conversation with a Mumbai-based activist in 2008 and they told me about Hindustan Composites Ltd. in Ghatkopar, Mumbai, where more than thirty people have been diagnosed with asbestos-related diseases.
We investigated it and found that the company was owned by a British company, which had become bankrupt. It then set up a trust. In 2009, we started to investigate the trust. Then around 2010, our first diagnosis and compensation became. Now, we have found 3,000 more people who have been diagnosed with asbestosis, and around 14-15 million pounds have been distributed to them as compensation.
Q: What kind of diseases does asbestos cause?
A: Asbestos primarily causes three kinds of diseases. It causes fibrosis of the lungs (asbestosis), lung cancer, and Mesothelioma (one of the deadliest forms of lung cancer).
Q: But its diagnosis takes years. Is that correct?
A: Asbestosis has a latency period. So you may not be exposed to asbestos right now but you may be diagnosed with it as asbestosis.
The latency period is not the same as the diagnosis period. Diagnosis can take place very quickly. Clinical examination and occupational history of a person can help in the early diagnosis of the exposure of asbestosis.
The process of compensation, which was initiated in 2009, is still ongoing as and when people are diagnosed with it. We are trying to raise compensation claims in other areas as well such as against the use of silicosis.
Q: Are you also involved in the compensation of those exposed to chrysotile asbestos in Roro village, Jharkhand? The 2018 order of the National Green Tribunal ordered the scientific closure of that minefield.
A: I was the one who started the investigation and filed against the abandoned asbestos minefield at Roro in 2013. The matter is now before the Supreme Court in Shri Kalyan Bansingh. We are trying to enforce the order passed by the NGT. The enforcement is problematic.
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Q: The 2018 NGT order, while allowing compensation claims of Roro village, acknowledged that there is scant data on the number of persons exposed to asbestos. What do you have to say about this?
A: Data is important in any context. The more data you have, the better it is in terms of required policy changes. Now, since many states in India do not have the required expertise to do that, we diagnosed individual claims and then went on to assess the levels of compensation. Since we do not have a developed compensation culture in India, this is how we go forward.
Q: Some of these could also be community claims such as that of Roro village, which is a protected area under the Forest Rights Act, 2006. What do you think?
A: These are in fact community-based claims in the sense that the people who filed them are members of the community. The argument is that the company should compensate through a fund set up for the community. As I said, asbestos has a latency period and thus, not everyone can be compensated right now. There are people who may not be diagnosed now but they are after some years. Some may require to be compensated then.
We need a system that allows ongoing compensation. But as I see it, the best solution is prevention. Prevention is even better than compensation because the amount of money may not be enough to compensate for the suffering people had to go through.
We need a system that allows ongoing compensation. But as I see it, the best solution is prevention. Prevention is even better than compensation because the amount of money may not be enough to compensate for the suffering people had to go through. That is why we are trying to use the example of compensation claims to raise awareness.
Q: One of the ways in which these companies can be held accountable is through the due-diligence responsibility. Do you agree?
A: We have worked on a film called ‘Breathless’ to raise awareness in India against the use of asbestos. Due diligence obligations are there in Europe and other countries including India. It is the idea that the company must know what is going on in its supply chain. It puts an obligation on other companies as well to know who they are supplying.
Due diligence requirements are important in these cases because we certainly do not want the factories to shut down. They engage people who are very poor. Shutting the factory would mean that these people will lose their jobs. We just want them to have safe jobs. This can only be done if companies follow due diligence and do not expose the workers to such hazardous activities. It can be achieved through things like risk analysis.
If the due diligence requirement was obeyed by the English and the Belgian company in India, there would have been some supervision. Honestly, then there would have been no way in which they would be in the asbestos industry, because clearly engaging in such activities violates due diligence. It became clear in the 1960s that asbestos is harmful and causes chronic diseases.
One can only imagine the number of people we would have been able to save had there been due diligence obligations.
This obligation goes beyond compensation and obligates the companies to remedy the violations. It should stop companies from violating the human rights obligations of the workers.
