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Sunday, October 07, 2007

Blue Lady judgement: line between judiciary and polity

I learnt about the Supreme Court ruling on the Blue Lady ship breaking last month. Since then I have been interested in this ruling, particularly because it seems to me as stepping into an area between judiciary and dictating policy. I have always wondered, particularly since the infamous ruling on inter-linking of rivers as to what are the limits of the judiciary in our country. Thanks to Mr. Somnath Chatterjee, often we get to hear that the Parliament is higher than the Court. But, at times the court seems to dictate to the government.

On controversial issues where they are at loggerheads, it occupies the media attention living as it does on a daily does of sensationalism. Where the court and government are on the same side, everyone else could be at a disadvantage, the media, unless it finds itself on the other side in such cases plays it safe and doesn't bother to report. With no celebrities involved in the litigation of the Blue Lady, the ruling by the apex court has not been taken note of by most part of the press.

An excerpt from the ruling of the court:

...while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.

11. India after globalization is an emergent economy along with Brazil, Russia and China. India has economic growth of above 9%. However, that growth is lop-sided. A large section of the population lives below poverty line. India has largest number of youth in the world. Unemployment is endemic. Article 21/14 is the heart of the Chapter of fundamental rights. Equality of opportunity is the basic theme of Article 14. In an emergent economy, the principle of proportionality based on the concept of balance is important. It provides level playing field to different stakeholders. Ship breaking is an industry. When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other hand. This is where the principle of proportionality comes in. Even in the case of Blue Lady, the figures indicate that 700 workers would be employed in ship breaking. Further, 41000 MT of steel would be made available. To that extent, there will be less pressure on mining activity elsewhere. ...(in an earlier ruling) this Court is not in favour of discontinuance of ship-breaking activity. However, this Court has held that the said activity needs to be strictly and properly regulated. This concept of balancing is given importance by Dr. Amartya Sen in his book "Development as Freedom". Today ship-breaking provides resources not only in terms of steel but also in terms of employment, skill and capability. Competition exists in the said business of ship-breaking amongst Bangladesh, Pakistan and India. In our view, if "capability" is a resource with our skilled workers it needs to be protected by strict implementation of Health Hazard Preventive Measures suggested in the report of TEC and implementation of Recycling Plans, generation of pollutants like asbestos to the extent of 20% can be almost eliminated. As stated, 85% of asbestos is in form of ACM in panels which is reusable. Therefore, the report provides State-of-the-Art mechanism which is the key element of "sustainable development". (all emphasis mine)

Now, this is only an excerpt, there is a preamble and further to this portion an analysis of the technical regulations prescribed to be adhered to while breaking of a ship by a re-cycler at Alang in Gujarat, described by many as one of the most polluted places on planet earth due to the large scale breaking down of pollutants laden ships from across the world.

Some thoughts:
1. The statement about 'Principle of Proportionality' (PoP) in relation to 'Sustainable Development' is rather interesting. Not being a legal expert, I can only infer that this means any section of the government cannot stop another section of the government in the name of 'Sustainable Development' or 'Environment Protection' (that shoots down all environmentalist arguments on Rama Sethu if the destroying of the bridge according to the court is 'development') if it is found to upset the balance on the PoP. The balancing of 'development' on the one hand and 'environmental protection' on the other seems to imply that there is no 'development' possible without 'environmental damage' (indeed the Judges cite one such ruling as part of this judgment), to me this seems to be a strange view. Do we take it that the Supreme Court of this country has taken a stand on the issue of development that any development will necessarily be at the cost of the environment and whatever evidence that may talk of eco-friendly growth may not be considered development at all!? Where does this stand vis-a-vis the view on the same issue by the Government of India which unlike the Supreme Court is a signatory for many international conventions and regulations on environment.

2. In building a case for their eventual judgment the judges make some statements that look rather strange to me, as I don't get to read many judgments. The judges claim that our growth of 9% is lop-sided, nothing new, but, my question does this reflect in everyone of the judgments given by the Supreme Court? And again they state that a large section of people live BPL, this needs to be qualified as we all know. BPL varies based on what are the indices you use to measure it, which state are you talking about, etc. The court goes on to state that we have 'endemic' unemployment! Again a statement that needs to be prefixed with a few qualifiers.

3. About 'level playing field' for stake holders, this I find the most confusing, here is a prescription for all 'emerging economies', that is PoP is important and that is what ensures that the level playing field is set. And how does this PoP exhibit itself, 'we need to keep the concepts of development in one hand and concepts of generation of revenue, employment and public interest in the other'!! I thought they were both the same!

4. Ship building may be an industry, just like manufacturing WMD is an industry too. But, I always assumed that it was the polity and enterprise and not the judiciary that decided the priority and protection of any industry. It seems to take a different turn here.

5. The number of people who will get employed and the MT of steel generated from this activity seems to step out of a promotional material. Employment of 700 people is not an issue in India (on paper atleast after the REGS), certainly this is not a solution to 'endemic unemployment', they will not be breaking this ship all their lives nor is there any idea (atleast in the judgement) about what sort of employees these will be, what are their rights, is there adequate financial compensation (apart from the health protection regulations mentioned in handling hazardous waste), would the employer find another job (or ship) for them to sustain their employment and livelihood...what is the 'capability' in taking apart a ship? what is its value today in the job market? what is the living standard and dignity of labour attached to this job? what are the 'resources' as 'capabilities' did these 700 people have before they started to break ships? maybe they were farmers in Vidarbha? can this resource be considered significant in the national interest? how? is it important for the country to decide and embark on building this capability? is it part of the national political agenda in developing certain 'resources'? to me this sounds a retrograde on 'knowledge economy' or 'knowledge society' whatever be its understanding and usage.

And the part about, somewhere, somehow this will ease the pressure on mining sounds muddled up. How would you re-cycling some steel ease pressure on mining? are the mining steel and recycled steel used for same applications? can someone verify this statement in any way at all? infact, the 'elsewhere' sounds rather casual.

6. And finally the part about Amartya Sen and competition, it seems a bit stretched for me. Why quote Sen? does it legitimise the judegement or something? and what is the part about competition between India, Pakistan and Bangladesh, how is it relevant in a case where the primary concern is about the damage to environment and health hazard to labourers?

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