Why India Should Learn From Verdict Of The Brazilian Court Declaring Use Of Asbestos As Unconstitutional

Even “controlled use of asbestos” is  deemed unconstitutional

“I lost my mother due to mesothelioma for no fault of hers. we have not used asbestos at all however it seems the fibers have spread in the environment. Only those who have suffered this dreadful disease can know the pain and we have seen my mother go through enormous pain during these years. I stay in mumbai and yes i have the medical records. There is no cure for mesothelioma and i hope one day we find it.”
-----Amit Kumar Jain, September 8, 2017 in a written communication with the author

 These days while India’s ministry of railways is rightly busy removing asbestos from railway platform across the country but one witnesses waste dump of broken roof sheets which is a design feature of every asbestos based product strewn around on the station and in nearby areas putting unsuspecting passengers and citizens at grave risk of exposure to the hazardous mineral fibers banned in some 60 countries. Piyush Goyal, the new railway minister needs to urgently ensure barricading of the asbestos laden area to avoid any effect on passengers and locals in its surrounding. .He must get a safety audit done so that only skilled and competent persons get employed for removing hazardous asbestos sheets. Asbestos abatement and removal must be carried out by a competent, approved asbestos removal contractor. Once the asbestos has been safely removed, there has to be certification of a clean air clearance. There must be a system for wrapping/disposal of removed sheets. The disposal of asbestos debris requires its proper scientific landfilling. The use of asbestos based products and technology carries continuing burden of harm throughout its life cycle.  Asbestos mineral fiber of all kinds including white chrysotile asbestos has been certified by the World Health Organisation (WHO) to be carcinogenic. Asbestos related diseases are preventable but are incurable. The prevention can only happen if one is saved from exposure to air borne asbestos fibers, which are always in a state of decay and erosion even when it is mixed with cement. Such fibers can be seen with naked eyes in the asbestos based roofs and other products like brake shoe and brake lining in almost all the vehicles.

What aggravates the situation in India is that among the most deprived and marginalized communities as many as 16.4 per cent in the rural areas and 20 per cent in the urban areas live and work under asbestos roofs. S0me 79 per cent of Indian Dalits live in such houses. This came to light from the 2011 Census figures released on the Scheduled Caste households by amenities and assets by the Office of the Registrar General & Census Commissioner.

Having been the chemicals minister, although Ram Vilas Paswan, Union Minister of Consumer Affairs, Food and Public Distribution is aware of the hazards of asbestos, he has not taken any step so far to save the consumers from asbestos products by announcing  ban on them.

Having served as the Permanent Representative of India to the UN from 2009 to 2013, Hardeep Singh Puri, the new Minister for Housing and Urban Affairs, must pay heed to this unhealthy situation due to rampant presence of asbestos laden houses and buildings in cities and across the country. Notably, efforts are underway to make UN buildings asbestos free. As part of $2.1 billion renovation work from 2008 to 2014, the amount of asbestos that was removed from the United Nations complex in New York City complex was enough to fill three football fields fifteen feet high. The Geneva headquarters of the UN is also going to become asbestos free after he United Nations General Assembly in New York approved the renovation project for the Palais des Nations complex in Geneva. This complex hosts around 10,000 UN employees, which is more than the official headquarters in New York. The work has commenced this year and is estimated to cost $846.6 million. A report presented by the UN Report of the Secretary-General in July 2000 had undertaken the assessment of asbestos-containing materials at United Nations buildings located in Geneva, Vienna and Nairobi and at regional commission buildings in Addis Ababa, Bangkok, Beirut and Santiago and harmful effects of such materials on the health of staff members, delegates and other persons working in and visiting the buildings. Puri should order similar assessment for buildings in India. He should write to all the state urban development ministers and urban local bodies to stop usage of asbestos in all the municipalities and for some 7, 935 urban centres.

Although Narendra Singh Tomar, Union Minister of Rural Development, Panchayati Raj, and Mines has been apprised of the fatal consequences of continued use of asbestos because of which his mines ministry has technically banned its mining, so far he has not done anything to ensure that public health of rural folk is safeguarded.  The minister should write to all the Panchayats to refrain from procurement of construction of asbestos cements sheets and other asbestos based products to ensure asbestos free villages.

Asbestos causes mesothelioma (cancer of the thin membranes that line the chest and abdomen) and cancers of the lung, larynx and ovary. India’s National Institute for Health and Family Welfare estimates secondary exposure to asbestos used in construction has resulted in higher incidence of cancer among those living under asbestos roofs. It is a commentary on the scientific temper of the country that even Yoga centres are being run under asbestos roofs like in Jawaharlal Nehru University (JNU) and the premises of medical and engineering colleges besides other public buildings which are laden with asbestos based products. Prakash Javadekar, Union Minister of Human Resource Development ought to intervene to ensure asbestos free educational institutions

On 24 August, 2017, Constitutional Supreme Court of Brazil decided with 8 votes against 2 that the Brazilian state of São Paulo has the right to forbid the production and selling of white chrysotile asbestos, a carcinogenic mineral fiber. As many as 10 Brazilian states prohibit use of this mineral fiber because of the incurable diseases caused by it. India’s Supreme Court and High Courts have consistently expressed their serious concerns regarding exposure to these carcinogenic mineral fibers and has asked the central and state governments to update their laws as per fresh resolution of International Labour Organisation (ILO), which has sought elimination of future use of white chrysotile asbestos to safeguard human health. But the governments in India have not complied with its directions so far.

Although mining of all kinds of asbestos is technically banned in India. According to Indian Minerals Yearbook published in December 2015 import of white asbestos from Russia, Kazakhstan, Brazil and China continues. It endangers the public health of present and future Indians.

Following the verdict, Brazilian São Paulo state has withdrawn the controlled use of asbestos law for the whole country. Other states will have to take similar action. Brazilian Supreme Court has already said that the production and the selling are unconstitutional. The President of the Supreme Court observed, “In concern of the environment, if any doubts, it must be prohibited so that the rights for us today and tomorrow won’t be lost for the ones that come after us.” Indian courts too should adopt this universally accepted precautionary principle and the inter-generational equity principle to save the public health of Indians like the Brazilian Court.

It is clear that the decision with regard to Brazilian São Paulo state has set an “important precedent” because the Court has excluded the law that allowed controlled use of this hazardous mineral fiber. The law that allowed usage of asbestos has been deemed unconstitutional

The Federal Supreme Court (STF) is the highest level of judicial system in Brazil, which is responsible for determining the constitutionality of laws. This Court has held that the extraction, processing, use and marketing of all forms of asbestos, including white chrysotile asbestos violate the Brazilian Federal Constitution.

Responding to the verdict, Fernanda Giannasi from Brazilian Association of exposure to asbestos (ABREA), a renowned leader of global anti- asbestos struggles said, “There is no more legal support to the controlled use of asbestos in Brazil. The important decision taken on 24 August means that there are no obstacles for the states and municipalities to prohibit asbestos. The public entities cannot give lame excuses for their failure to enact and enforce laws to safeguard people from exposure to hazardous fibers of asbestos.  Now that the Brazilian Court has decided on the constitutionality of the matter, it is the prerogative of the Brazilian Parliament to prohibit use of this carcinogenic fiber.” She said, "The victory at STF is the result of extensive construction of social movements in defense of workers' health.”  Fernanda Giannasi visited New Delhi in 2002 to ascertain the public health situation in the country and share her insights.

Notably, 10 Brazilian states and more than 35 Brazilian cities have valid laws banning asbestos. This verdict paves the way for the other cities and states to prohibit the toxic mineral fiber. No one can cite possibility of “safe and controlled use” as a ground to continue its usage of asbestos.

The core issue before the Court was the constitutionality of federal law which allowed use with restrictions on the exploitation and the use of asbestos in the variety of chrysotile, it’s adherence to rights to life, health and the environment. The validity of state laws and municipal authorities, who had banned white asbestos in their respective territories while the federal law permitted, was also before the Court that required ascertainment of the distribution of legislative powers between the federal government, states and municipalities.

The trial was conducted in two stages. At trial regarding the federal law authorizing the production and consumption of asbestos, the Court built a majority pro-banishment, for five (5) votes against 4 (four). Due to the prevention of two judges who had issued opinions on the cause before taking their seats in Court, the quorum of 11 (judges) was reduced to only 9 (nine). Thus, it was not possible to achieve the 6 (Votes) as required by the Constitution for a declaration on the constitutionality of federal law have general effect and binding.

A second phase of the trial undertook to resolve this impasse, to define in practice to achieve the banning of all forms of asbestos in Brazil. When examining the text of the state law of São Paulo that banned asbestos on its soil, the Supreme Court stated, by eight (8) votes against 2 (two), the full acceptance of the legal force of this measure.

The range of this pronouncement is not limited to a state. It is applicable for the whole country because it has assumed a national character. By a vote of 6 judges of the current composition of the Supreme Court, the validity of the ban approved in state laws is based precisely on the unconstitutionality of permissible federal law. As a consequence of a mere formal question to prevent the participation of a judge in the main proceedings, the unconstitutionality was not binding, although in practice this is what will happen.

After the trial, the President of the Court, Justice Carmen Lucia, clarified, through its press office that the decision effectively overturned the authorization of the use of white chrysotile asbestos throughout the national territory. During the trial, the President of the Court recalled that asbestos compromises the future of coming generations and defended its banishment "By the principle of precaution, in case of environment, in doubt whether to seal".

Justice Celso de Mello, dean of the Court said, "The Supreme Court declares the unconstitutionality of this provision which permitted the chrysotile asbestos, by an absolute majority, cut off from the universe national law a rule that permitted, even if through controlled use, the use of asbestos. The use of asbestos chrysotile is now sealed". Thus, the use of this type of asbestos is completely sealed in the country.

The lawyer Roberto Caldas, Mauro MENEZES and lawyers who represented before the  Court the victims of contamination by asbestos, organized around the Brazilian Association of exposure to asbestos (ABREA) and the National Association of Attorneys of the work (ANPT) said, "It is ended the great war by banning of asbestos. Now let's take care of the aftermath: measures of achievement, service and repair just for victims."For the lawyer Mauro MENEZES also advocate the banning of asbestos in the gallery of the STF, the decision "reaffirms the vocation Brazilian constitutional, to require that the economic development note social guarantees and environmental population". Mauro MENEZES concluded, “The situation reveals that the federal law is moribund, it is in a terminal stage. When the Court declares its unconstitutionality, this law is no longer efficient in the national judicial order”.

 In the aftermath of this verdict, the states and to the federal districts are under a logical and legal compulsion to bring bills for the banishment of asbestos in the states which have no laws prohibiting the carcinogenic asbestos as yet.

Brazil’s National Confederation of the Industrial Workers (CNTI) had initiated an action with the aim to get the law on the prohibition of asbestos in the state of São Paulo declared as unconstitutional and revoked. The Court did not heed the request and has endorsed the prohibition of this mineral fiber.

Brazilian Court found that the asbestos based products are not safe for people’s health and to the environment, which was in contradiction to the Constitutional provisions.

Taking cognizance of these development and continued harm to Indians, it is high time Ravi Shankar Prasad, Union Minister of Law and Justice introduced a bill to ban asbestos of all kinds in India.

The recent estimate is that asbestos is causing 194,000 occupational deaths globally every year.  Notably, South Africa banned asbestos in 2008. Now that Brazilian court’s order has established the illegitimacy of asbestos use, it is high time BRICS (Brazil Russia, India, China and South Africa) governments make their present and future citizens safe from hazards of asbestos fibers. If Jagat Prakash Nadda, the Union Minister of Health and Family Welfare does not seek prohibition on the use of asbestos based products to safeguard public health he will be deemed guilty of dereliction of duty given the fact that Ministries of Environment and Labour have sought ban on asbestos. He must ensure creation of environmental and occupational health infrastructure and competent environmental and occupational health doctors to diagnose the asbestos related diseases.

Having been a health minister, Dr. Harsh Vardhan, the Union Minister of Science and Technology, Earth Sciences and Environment, Forest and Climate Change must stop granting environmental clearances to asbestos based factories to demonstrate consistency in his ministry’s approach.  Santosh Kumar Gangwar, Union Minister of Labour and Employment must reiterate his ministry’s resolve to save workers from asbestos related diseases by eliminating asbestos related work from the industries.

Large reserves of asbestos are located mainly in China, Kazakhstan and Russia. The world production of asbestos was 1.9 million tonnes in 2013. Russia was the leading producer and accounted for 53% production followed by China (21%), Brazil (15%) and Kazakhstan (13%). So far countries like Brazil, China, India, Indonesia, Mexico, Russia, and USA are yet to ban asbestos. Suresh Prabhu, the new Commerce and Industry Minister ought to intervene at the earliest to safeguard Indians from continued exposure to foreign asbestos fibers. He must resist the unscientific approach of Ananthkumar, Union Minister of Chemicals and Fertilizers who has made India into a laughing stock among the comity of nations by inconsistently claiming that asbestos is not a hazardous substance at the meeting of the UN’s Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade in Geneva although domestic laws are quite clear about it being a hazardous substance. Prabhu must also persuade Arun Jaitley, the Union Finance and Corporate Affairs Minister to provide incentives to the alternatives of asbestos and refrain from making asbestos artificially cheaper as has been done in the past.

Taking note of the grave threats to the public health of people in BRICS (Brazil Russia, India, China and South Africa) countries, there has been a persistent demand for phase out of asbestos industry in the country. These mineral fibers must be banned to save citizens, consumers and workers who are dying a painful death due to exposure to carcinogenic fibers of white chrysotile asbestos procured from Russia, Brazil, Kazakhstan and China. Notably, the incurable asbestos related diseases are caused primarily by the inhalation of asbestos fibers. These diseases take up to 50 years after exposure to develop in a situation where there is almost no infrastructure and skill to even diagnose these environmental and occupational diseases. To begin with governments and local bodies in India must stop procurement of asbestos based products. Nirmala Sitharaman, Union Minister of Defence must make our military establishments free of asbestos. Governments must make public buildings free of asbestos on a priority basis. They must prepare a register of asbestos exposed persons and asbestos laden buildings and announce a compensation package for the victims of asbestos exposure. Notably, Calcutta High Court and Kerala Human Rights Commission have already taken the first steps in this regard.

Dr Gopal Krishna is a public policy and law researcher and Editor of www.toxicswatch.org