Environmental Protection--Effluent treatment plants in Tirupur ordered closed

K.T. Sangameswaran

CHENNAI: The Madras High Court on Friday ordered the closure of all Common Effluent Treatment Plants (CETPs) and bleaching and dyeing units in Tirupur area immediately by the Tamil Nadu Pollution Control Board. Electricity supply should also be disconnected.

Passing a series of directions on contempt petitions, the First Bench comprising Chief Justice M.Y.Eqbal and Justice T.S.Sivagnanam, in its interim order, said such CETPs/Integrated Effluent Treatment Plants (IETPs)/Units should not be permitted to operate unless they achieved zero liquid discharge (ZLD) as per the court directions in 2006.

All CETPs, IETPs and units should be individually inspected by an officers' team nominated by the TNPCB along with the members of the monitoring committee and a detailed report should be prepared individually for each treatment plant and unit.

The report should be the sole basis to assess whether the CETPs/IETPs/units should be permitted to commence operations.

“If the CETPs/IETPs/units are deficient or have not achieved the required parameters, they shall not operate and be directed to rectify the deficiencies and report to the Pollution Control Board for fresh inspection by the team of officers of the board and the monitoring committee.”

The Noyyal River Ayacutdars Protection Association, represented by its president, A.P.Kandasamy, filed the petitions against PWD and TNPCB authorities alleging wilful disobedience of the court orders and directions. Its grievance was against bleaching and dyeing units of the Tirupur area as due to their indiscriminate discharge of trade effluents into the Noyyal, the river was polluted. The association complained that nothing had been done after the Supreme Court upheld a Division Bench's decision. The pollution had increased.

The TNPCB submitted it had formed five inspection teams consisting of three members each and 10 teams comprising two members each to carry out the court directions of April last year. On inspection, the board found there were violations. Hence, show cause notices were issued to 300 units. Despite such notices, 286 units continued to violate the directions. Hence, closure orders were issued against them.

The Bench observed, “If as stated by the board there had been periodic monitoring and constant vigilance, the violations committed by these units would have come to light much earlier. Thus, prima facie, we are of the view that there has been dormancy/lethargy on the part of officials in implementing the directions of the High Court even after the disposal of the appeal by the Supreme Court in October 2009.”

If the board had issued consent to operate the CETPs, merely on the establishment of the machinery for achieving ZLD, it amounted to violation of the court orders.

The TNPCB should initiate criminal prosecution against such CETPs/Integrated Effluent Treatment Plants (IETPs) and units which had flouted the court orders and the board's conditions, continued to cause pollution and failed to rectify the defects despite the board's show cause notice.

Going a step further, the Bench said the board should furnish the list of names of the board officers during the relevant time when the treatment plants and units failed to comply with the court orders and the board's directions so that appropriate action may be taken against them.

It was a matter of great concern that in spite of the court's specific direction, the units continued discharging effluents and did not achieve zero liquid discharge. At the same time, the Pollution Control Board failed to close the units. Only after the matter was taken up by the High Court, did the board close some units.

“Report shocking”

The river water samples collected in October last year were sent to the National Environmental Engineering Research Institute (NEERI) for analysis. The institute's report was alarming and shocking. In one sample, the total dissolved solids (TDS) was 5,660.

The acceptable standard for drinking water was 500. This was a prima facie indication that pollution in the river had not stopped. The matter has been posted for March 21.

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Haider Ajaz

(The Hindu)

Supreme Court: Haj subsidy not discriminatory

J. Venkatesan

If we wish to keep country united, we need to have tolerance

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Spending small part of tax for concessions is not violative of Article 27: Bench

Rs. 280-crore expenditure on Haj, a drain on taxpayers' money: Prafull Goradia

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New Delhi: The Supreme Court on Friday dismissed a petition challenging the constitutional validity of the Haj Committee Act, which provides for grant of a government subsidy for pilgrimage every year.

A Bench of Justices Markandey Katju and Gyan Sudha Misra rejected the contention by Prafull Goradia, former BJP Rajya Sabha member, who said such a grant violated Articles 14 and 15 and in particular Article 27 (freedom as to payment of taxes for promotion of any particular religion).

“Severe drain”

The petitioner said he was a Hindu but he had to pay direct and indirect taxes, part of whose proceeds went for the Haj pilgrimage, which was done only by Muslims. For the Haj, “the Indian government grants a subsidy in air fare,” which it could not do. An estimated Rs. 280 crore annually incurred by the government for the pilgrimage was not only unconstitutional but also a severe drain on the taxpayers' money.

Rejecting this argument, the Bench said India was a country of great diversity and “if we wish to keep our country united, we need to have tolerance and equal respect for all communities and sects. It is due to the wisdom of our founding fathers that we have a Constitution, which is secular in character and which caters for the tremendous diversity in our country.”

Secular state

The Bench said: “When India became independent in 1947 there were partition riots in many parts of the subcontinent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that under the leadership of Pandit Jawaharlal Nehru they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic state and hence there must have been tremendous pressure on Pandit Jawaharlal Nehru and our other leaders to declare [India] a Hindu state. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular state. This is why despite all its tremendous diversity India is still united. In this subcontinent, with all its tremendous diversity (because 92 per cent of the people living in the subcontinent are descendants of immigrants), the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc.”

On the petitioner's contention that Article 27 was violated, the court said: “If only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27. It is only when a substantial part of the tax is utilised for any particular religion would Article 27 be violated.”

Facilities for all Indians

The Bench pointed out that the State government incurred some expenditure for the Kumbh Mela and the Centre, for facilitating Indian citizens to go on pilgrimage to Mansarover, etc. Similarly some State governments provided facilities to Hindus and Sikhs to visit temples and gurdwaras in Pakistan. “These are very small expenditures in proportion to the entire tax collected. Thus there is no discrimination. Parliament has the legislative competence to enact the Haj Committee Act.”

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Haider Ajaz

(THE HINDU)

Case against Coca-Cola Kerala State: India

In a number of districts of India, Coca Cola and its subsidiaries are accused of creating severe water shortages for the community by extracting large quantities of water for their factories, affecting both the quantity and quality of water. Coca Cola has the largest soft drink bottling facilities in India. Water is the primary component of the products manufactured by the company.

There have been numerous public protests of The Coca-Cola Company’s operations throughout India, involving thousands of Indian citizens and several non-governmental organizations. Protests against the Coco Cola factories have taken place in a number of districts including: Mehdiganj near the holy city of Varanasi; Kala Dera, near Jaipur, Rajistan; Thane district in Maharashtra; and Sivaganga in Tamil Nadu.

The protests by villagers from Plachimada, in the southern state of Kerala have shown the strength of community-led activities, even against this global multi-national company. Through round-the-clock vigils outside the factory gates, they have managed to ‘temporarily’ shut down Coca-Cola’s local bottling plant. As of early 2007, the factory had remained closed for a number of years and a combination of community action and legal redress was aimed at permanent closure.

Background to Coca Cola ground water exploitation case in Kerala

In 1999, the Hindustan Coca-Cola Beverages Private Limited, a subsidiary of the Atlanta based Coca-Cola company, established a plant in Plachimada, in the Palakkad district of Kerala, southern India. The Perumatty Village Council gave a licence to the company to commence production in 2000. Coca Cola drew around 510,000 litres of water each day from boreholes and open wells. For every 3.75 litres of water used by the plant, it produced one litre of product and a large amount of waste water.

Two years after production began protest by local residents became common place. Local communities complained that water pollution and extreme water shortages were endangering their lives.

In 2003, women from the Vijayanagaram Colony in the village of Plachimada, protested that their wells had dried up because of the over exploitation of groundwater resources by the Coca-cola plant. They complained that they now had to walk nearly five kilometres twice a day to fetch water. They also argued that the little which was left was undrinkable and when used for bathing the water burned their eyes and lead to skin complaints. Aside form these health issues, the depletion of groundwater resources also affected the ability of local residents to raise their crops of rice and coconuts.

In April 2003, the Perumatty Grama Panchayat (Village Council) refused renewal of Coca-Cola’s licence to operate on the grounds that it was not in the public interest to renew the licence stating:
“…the excessive exploitation of ground water by the Coca-Cola Company in Plachimada is causing acute drinking water scarcity in Perumatty Panchayat and nearby places…”

The Village Council considered revocation of the licence to be necessary in order to protect the interests of local people.

Permatty Grama Panchayat v state of Kerala

In December 2003, the Village Council’s decision was challenged in the High Court of Kerala State. The Court considered two issues: the question of the over exploitation of ground water, and the justification for the Village Council’s decision to revoke the licence.

The Court recognised that the State as a trustee is under a legal duty to protect natural resources. It considered that these resources, meant for public use, cannot be converted into private ownership. The residing judge, Justice K Balakrishnan Nair, asserted that the government had a duty to act to “protect against excessive groundwater exploitation and the inaction of the State in this regard was tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India.”

The High Court ordered the plant to stop drawing the groundwater within a month, ruling that the amount of water extracted by the plant was illegal. But at the same time, it ordered the Village Council to renew the licence and not interfere with the functioning of the Company as long as it was not extracting the prohibited ground water. Coca-Cola refuted the accusations of excessive exploitation and pollution and lodged an appeal.

The next few years saw a confusing array of legal battle between the Village Council and the company.

In 2005, the divisional bench of the High Court granted permission for the company to extract 500,000 litres from the common ground water per day in the year 2005-2006. The Court also affirmed that the Village Council was not justified in cancelling Coca Cola’s licence to operate until a full scientific assessment had been made of the facts.

The Plachimada story March 2000 – Factory established April 2002 – Agitation by the villagers commences March 2003 – Village Council refuses to renew licence May 2003 – State government stays the Village Council decision Dec 2003 – Single judge bench of the Kerala High court upholds the Village Council’s decision 21 Feb 2004 – The Government ordered the company to stop drawing ground water from the plant 12 March 2004 – Coca Cola company suspended production saying it was “left with no option but to close the factory down in the long run” 29 March 2004 – Village Council refused to renew licences again saying company had failed to meet conditions to: stop using ground water; demonstrate that its products were safe, and prove the non-toxicity of its solid waste 3 April 2004 – Irate villagers blocked tanker lorry taking water to the plant and police arrested 44 villagers April 2005 – A High Court Division Bench allows appeal by Coca Cola and permits the company to draw 500,000 litres of water per day. Orders the Village Council to renew licence May 2005 – Village Council files special leave petition in the Supreme Court 1 June 2005 – Company approaches the High Court again as the Village Council did not renew the licence. The court orders Village Council to renew the licence within 7 days, or it would be deemed that the licence stands renewed for two years from 10 June 2004 6 June 2005 – Village Council informs the company that licence will be renewed for three months; asks them to remit the fee and collect licence 17 August 2005 – A group of about 100 activists from Yuvajana Vedi youth organisation march to factory gates. Heavy police force severely injured 4 protestors who were hospitalised and arrested 43 activists 19 August 2005 – The Kerala State Pollution Control Board ordered the stoppage of production at the Plachimada factory for failure to comply with pollution control norms 15 September 2005 – Kerala State Government lends its support for the people against the company November 2005 – High Court rejects the company’s petition that since Village Council did not keep up the stipulated time frame, it should be deemed that the licence stands renewed for two years. The company ought to have accepted the opportunity to function for three months. But the court again orders the Village Council to renew the licence November 2005 – Village Council files against the latest High Court order in the Supreme Court 4 Jan 2006 – Village Council reissued a licence to the company for three months but laid out thirteen conditions, the first of which is that the company shall not use groundwater from Perumatty Panchayat for industrial purposes, or for producing soft drinks, aerated carbonate beverages or fruit juice June 2006 – Meeting with community leaders ends in major commitment from Kerala state officials for pro-active action against Coca Cola 10 August and 11 August 2006, the Government of Kerala and the State Food (Health) Authority, respectively, banned the manufacture and sale of Coca-Cola in the State on the grounds that it was unsafe September 2006 – High Court of Kerala set aside the orders of the Government of Kerala and the State Food (Health) Authority

SOURCES: Based on article by P.N. Venugopal, 27 Jan 2006, Quest Features and Footage, Kerala, cited on Together India website, with additional information from Asian News International 20 August 2005; the Hindu Newspaper 20 August 2005; the Indian Resource Centre, 17 August, 2005; The Hindu newspaper, 25 October, 2005; Coca Cola Company Website, Press releases.

In August 2005, the plant was closed once again, this time by the Kerala State Pollution Control Board. The Board had sought clarification from Coca Cola of the excessive amount of Cadmium in the effluent. G Raja Mohan, the President of Kerala State Pollution Control Board stated:
“In the waste water treatment sludges we have found contents of Cadmium abnormally high. It goes up to 600 percent above the permissible limit. In the ground water the content of Cadmium is not that much. So, there is something which they are using in the raw materials.”

In October 2005, the State Government of Kerala announced it would support the Village Council local activists by challenging Coca Cola’s right to extract water from common groundwater resources in the Supreme Court of India. In an official press release, Health Minister K. K Ramachandran said:
“the Government will stand by the people in whichever court the company goes. The right over water and air is the right to live. The Government will not allow stopping of these two lifelines of the people.”

On 4 January 2006, following decisions of the Kerala High Court, the Village Council renewed the Coca Cola company’s licence for three months but laid out thirteen conditions. The first of these was that the company shall not use groundwater from Perumatty Panchayat for industrial purposes, or for producing soft drinks, aerated carbonate beverages or fruit juice. The Village Council cited the 2004 Supreme Court decision of M C Mehta v Union of India and the notification by the Kerala State Groundwater Department that village is ‘over exploited’ with regard to groundwater.

Supreme Court Judgement recognises the right of citizens to use water In M C Mehta versus Union of India 2004(12) SCC118, the Supreme Court of India recognised that: Groundwater is a social asset Citizens have the right to the use of air, water and earth as protected under Article 21 of the Constitution (the protection of life and personal liberty) It further states that the environmental balance is to be maintained and wherever groundwater is required for domestic and agricultural needs, priority is to be given to these.

Source: PN Venugopal, 27 Jan 2006, Quest Features & Footage, Kerala, cited on Together India website

In June 2006, the newly elected State Government of Kerala assured community leaders that it will take proactive measures against the Coca-Cola bottling plant in south India. On June 15th 2006, Chief Minister Mr. V. S. Achutanandan and other cabinet members submitted a memorandum outlining their demands. These demands included the permanent closure of the bottling plant in Kerala, compensation for the affected community members and prosecution of the Coca-Cola Company for criminal offences.

In August 2006, this brought a new twist to the ongoing saga. The Kerala State Pollution Control Board ordered a ban on the manufacture and sale of Coca Cola in the State questioning the safety of the product itself, based on allegations that it contained pesticides and harmful chemicals in a report by an NGO, the Centre for Science and Environment, New Delhi.

Coca Cola put out a press release stating:

“We are completely confident in the safety of our soft drinks in India because they are produced to the same level of purity, regarding pesticides, as the stringent EU criteria for bottled water.

We support the adoption of stringent, science-based rules by the Indian government regarding levels of pesticides in soft drinks. The rules should be based on sound and validated testing methodologies. We continue to work with relevant government bodies, industry associations, non government organizations (NGOs) and the scientific community to develop and finalize criteria and associated testing methods for pesticides in soft drinks.

We have the same uncompromising commitment to product safety and quality in India and everywhere we offer our beverages around the world, and independent third parties regularly audit all plants for compliance. The Coca-Cola Company has stringent criteria for all of the ingredients used in our beverages. These criteria are backed by internationally accepted analytical testing protocols for these ingredients.

Our soft drinks in India have been regularly tested and evaluated by the world renowned and independent Central Science Laboratories (CSL) and all tests show no detectable level of pesticides.” – Coca Cola Media Statement Regarding the Safety of Coca Cola Soft Drinks in India, 9 August 2006.

However, in September 2006, the High Court of Kerala set aside the orders of the Government of Kerala and the State Food (Health) Authority banning the manufacture and sale of Coca-Cola in the State. The High Court observed that the ban could not be justified since it was based solely on a report by an NGO.

The State Government of Kerala has now challenged the extraction of water by Coca Cola in proceedings before the Supreme Court. The State Government argues that the company is taking water from poor communities, but according to a press article in October 2006, the Village Council was not pressing for the case in the Supreme Court to be listed for hearing. It appears to believe that as long as the conditions imposed by the Village Council are not fulfilled, the plant cannot reopen.

Nevertheless, water remains a problem for the villagers. With its groundwater still polluted, Plachimada now gets its drinking water through pipes, that provide water for only a few hours once in two days, and through tanker lorries which also arrive once in two days. Fifteen tanker-lorries of water are supplied by the government, and 15 more by the company.

Villagers remain particularly concerned at the pollution of the scarce remaining groundwater and land which they blame on the discharge by the Coca-Cola company of its waste into the surrounding fields.

Although the Coca Cola factory in Plachimada has remained closed since 2004, locals are not satisfied with simply closing the plant; they want justice for the damage caused to health and the environment. As the protestors complain:

“It’s true that the company is not functioning, but that is not enough. We must get compensation for all the crimes committed by the company.”

Whether or not the ban finally stays, the agitation in front of the factory gate is continuing. As Kaliamma, one of the several tribal women squatting in the temporary ‘agitation tent’ says: “Our problems have not been solved.”

Global protests against Coca Cola

Protests about over-extraction of ground water in India and Sri Lanka by Coca Cola’s subsidiary companies are impacting on the parent company. Strong concerns dominated the company’s annual general meeting on 19 April, 2006, in Delaware, USA. A group of protesters shouted outside the meeting, waving banners with messages such as: “Coca-Cola: Stop De-Hydrating the World” and “Coca-Cola: Destroying Lives, Livelihoods and Communities.”

Inside the meeting, nearly 20 shareholders spoke on behalf of campaigns from India and Colombia. A proposal tabled by a shareholder called on the company to “prepare a report on the potential environmental and public health damage of each of its plants, affiliates and proposed ventures extracting water from areas of water scarcity in India”, but failed to receive any positive response from the company.

In its statement against the proposal, Coca Cola stated that it “recognizes that water is a precious natural resource under growing stress around the world.” It set out the actions that the company has taken to address the risks associated with water extraction and dealt with the complaints in Kerala.

“As to groundwater issues in southern India specifically, the Kerala High Court ruling released in April 2005 (the result of a year-long independent study) stated that our facility was not the cause of water shortages in that community. The study showed that a cycle of three years of short monsoon seasons in the Kerala area was the main contributor to the local water shortages. Through our rainwater harvesting efforts in several communities and plant operations in India, we currently are returning a significant portion of the water we remove from aquifers for production purposes.

“Additionally, the Company has initiated partnerships to set up local rainwater harvesting projects in communities around the country and to mobilize local residents behind these water conservation efforts. These projects combine modern technology with the reinstatement of traditional methods of water management that had fallen into disrepair in some local communities.

“The Board understands the need and desire for transparency in all matters including environmental safety and health issues related to our operations in India and elsewhere. However, we feel that this proposal is unnecessary at this time because our above-described existing environmental, health and safety policies, practices, and reporting methods provide a wide range of information regarding the impacts of our operations throughout India and the world. Furthermore, the Board believes that producing the report called for in this proposal would create a redundant use of Company human and financial resources.”

The campaign against Coca Cola has spread, particularly on college and university campuses, as well as among trade unionists and religious organisations. The India Resource Centre published a press release the day following the Shareholder meeting stating: “Even as Coca-Cola officials were trying to deal with the scores of protesters at its meeting, the campaign to hold Coca-Cola accountable was producing damning results for the company. The Union Theological Seminary in Manhattan, New York, a graduate school of theology which trains students to be ministers in the Christian faith, just announced on Tuesday that it was banning the sale of Coca-Cola products on its campus.

In India, a new campaign was announced in Gangaikondan, in the southern state of Tamil Nadu, against a Coca-Cola bottling plant under construction. And a massive rally is planned in Plachimada, Kerala on April 22, where Coca-Cola’s bottling plant has remained shut down for over a year because the village council has refused to renew Coca-Cola’s license to operate.”

In November, 2006, the Chairman and CEO, The Coca-Cola Company, E. Neville Isdell, spoke about the challenges to Coca Cola in India at the Nature Conservancy in Atlanta, Georgia, USA. He remarked:

“In India, we have been challenged to demonstrate our commitment to water stewardship. While we are not even close to being one of the largest users of water, we are certainly one of the most visible, and have been subject to criticism that we are depleting groundwater aquifers in the State of Kerala. Let me be very clear: Coca-Cola has a shared interest with the communities where we operate in healthy watersheds — because they sustain life and our business. And the last thing we would ever do is spend millions of dollars to build a plant that would run itself dry.

“Accordingly, we are working with many partners across India to improve watershed management, and with the Central Ground Water Authority, local governments and communities to expand the use of simple and effective rainwater harvesting technology. To date, we have installed rainwater harvesting systems in 200 locations, including schools and farms, that are helping recharge aquifers when the rains come.”

Sources: This section is based on a wide variety of sources including court judgements, press releases and official statements from Coca Cola. These include: Permatty Grama Panchayat vs state of Kerala, High Court of Kerala 2003; Coca-Cola: Continuing Battle in Kerala, Coca-cola plant must stop straining water Indian Resource Centre July 10, 2003; Coca-cola plant must stop straining water, The Guardian 19 December 2003; W.A.N0.2125 of 2003 and W.A.N0215 of 2004 Judgment 7th day of April 2005, M. Ramachandran and K.P Balachandran, JJ High court of Kerala 2005; Coca-Cola Protestors Attacked by police: four hospitalized, R. Ajayan, Plachimada Solidarity Committee (India) Amit Srivastava, India Resource Center, August 2005; Kerala Pollution Board orders Coke plant to close, Asian News International 8/20/2005; State defends village council decision to revokes Indian licence, Indian Resource Centre, September 2005; Health Minister: Coke plant will not be allowed to function The Hindu, 25 October2005; Kerala Government Assures Proactive Action Against Coca-Cola Meeting with Community Leaders Ends in Major Commitments from State Officials, Indian Resource Centre : 19 June, 2006; Kerala assures proactive action against Coca-Cola one world. South Asian; Article by M Suchitra and O.N. Venugopal, 03 Oct 2006, The Quest Features & Footage, Kochi, cited on the India Together website; Shareowner Proposal Regarding Environmental Impacts of Operations in India (Item 7)by William C. Wardlaw, III, Annual Meeting of Coca Cola Shareholders, 2006; press releases, Coca Cola Company; articles from the India Resource Centre website.

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Haider Ajaz

Case against Coca-Cola Kerala State: India

In a number of districts of India, Coca Cola and its subsidiaries are accused of creating severe water shortages for the community by extracting large quantities of water for their factories, affecting both the quantity and quality of water. Coca Cola has the largest soft drink bottling facilities in India. Water is the primary component of the products manufactured by the company.

There have been numerous public protests of The Coca-Cola Company’s operations throughout India, involving thousands of Indian citizens and several non-governmental organizations. Protests against the Coco Cola factories have taken place in a number of districts including: Mehdiganj near the holy city of Varanasi; Kala Dera, near Jaipur, Rajistan; Thane district in Maharashtra; and Sivaganga in Tamil Nadu.

The protests by villagers from Plachimada, in the southern state of Kerala have shown the strength of community-led activities, even against this global multi-national company. Through round-the-clock vigils outside the factory gates, they have managed to ‘temporarily’ shut down Coca-Cola’s local bottling plant. As of early 2007, the factory had remained closed for a number of years and a combination of community action and legal redress was aimed at permanent closure.

Background to Coca Cola ground water exploitation case in Kerala

In 1999, the Hindustan Coca-Cola Beverages Private Limited, a subsidiary of the Atlanta based Coca-Cola company, established a plant in Plachimada, in the Palakkad district of Kerala, southern India. The Perumatty Village Council gave a licence to the company to commence production in 2000. Coca Cola drew around 510,000 litres of water each day from boreholes and open wells. For every 3.75 litres of water used by the plant, it produced one litre of product and a large amount of waste water.

Two years after production began protest by local residents became common place. Local communities complained that water pollution and extreme water shortages were endangering their lives.

In 2003, women from the Vijayanagaram Colony in the village of Plachimada, protested that their wells had dried up because of the over exploitation of groundwater resources by the Coca-cola plant. They complained that they now had to walk nearly five kilometres twice a day to fetch water. They also argued that the little which was left was undrinkable and when used for bathing the water burned their eyes and lead to skin complaints. Aside form these health issues, the depletion of groundwater resources also affected the ability of local residents to raise their crops of rice and coconuts.

In April 2003, the Perumatty Grama Panchayat (Village Council) refused renewal of Coca-Cola’s licence to operate on the grounds that it was not in the public interest to renew the licence stating:
“…the excessive exploitation of ground water by the Coca-Cola Company in Plachimada is causing acute drinking water scarcity in Perumatty Panchayat and nearby places…”

The Village Council considered revocation of the licence to be necessary in order to protect the interests of local people.

Permatty Grama Panchayat v state of Kerala

In December 2003, the Village Council’s decision was challenged in the High Court of Kerala State. The Court considered two issues: the question of the over exploitation of ground water, and the justification for the Village Council’s decision to revoke the licence.

The Court recognised that the State as a trustee is under a legal duty to protect natural resources. It considered that these resources, meant for public use, cannot be converted into private ownership. The residing judge, Justice K Balakrishnan Nair, asserted that the government had a duty to act to “protect against excessive groundwater exploitation and the inaction of the State in this regard was tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India.”

The High Court ordered the plant to stop drawing the groundwater within a month, ruling that the amount of water extracted by the plant was illegal. But at the same time, it ordered the Village Council to renew the licence and not interfere with the functioning of the Company as long as it was not extracting the prohibited ground water. Coca-Cola refuted the accusations of excessive exploitation and pollution and lodged an appeal.

The next few years saw a confusing array of legal battle between the Village Council and the company.

In 2005, the divisional bench of the High Court granted permission for the company to extract 500,000 litres from the common ground water per day in the year 2005-2006. The Court also affirmed that the Village Council was not justified in cancelling Coca Cola’s licence to operate until a full scientific assessment had been made of the facts.

The Plachimada story March 2000 – Factory established April 2002 – Agitation by the villagers commences March 2003 – Village Council refuses to renew licence May 2003 – State government stays the Village Council decision Dec 2003 – Single judge bench of the Kerala High court upholds the Village Council’s decision 21 Feb 2004 – The Government ordered the company to stop drawing ground water from the plant 12 March 2004 – Coca Cola company suspended production saying it was “left with no option but to close the factory down in the long run” 29 March 2004 – Village Council refused to renew licences again saying company had failed to meet conditions to: stop using ground water; demonstrate that its products were safe, and prove the non-toxicity of its solid waste 3 April 2004 – Irate villagers blocked tanker lorry taking water to the plant and police arrested 44 villagers April 2005 – A High Court Division Bench allows appeal by Coca Cola and permits the company to draw 500,000 litres of water per day. Orders the Village Council to renew licence May 2005 – Village Council files special leave petition in the Supreme Court 1 June 2005 – Company approaches the High Court again as the Village Council did not renew the licence. The court orders Village Council to renew the licence within 7 days, or it would be deemed that the licence stands renewed for two years from 10 June 2004 6 June 2005 – Village Council informs the company that licence will be renewed for three months; asks them to remit the fee and collect licence 17 August 2005 – A group of about 100 activists from Yuvajana Vedi youth organisation march to factory gates. Heavy police force severely injured 4 protestors who were hospitalised and arrested 43 activists 19 August 2005 – The Kerala State Pollution Control Board ordered the stoppage of production at the Plachimada factory for failure to comply with pollution control norms 15 September 2005 – Kerala State Government lends its support for the people against the company November 2005 – High Court rejects the company’s petition that since Village Council did not keep up the stipulated time frame, it should be deemed that the licence stands renewed for two years. The company ought to have accepted the opportunity to function for three months. But the court again orders the Village Council to renew the licence November 2005 – Village Council files against the latest High Court order in the Supreme Court 4 Jan 2006 – Village Council reissued a licence to the company for three months but laid out thirteen conditions, the first of which is that the company shall not use groundwater from Perumatty Panchayat for industrial purposes, or for producing soft drinks, aerated carbonate beverages or fruit juice June 2006 – Meeting with community leaders ends in major commitment from Kerala state officials for pro-active action against Coca Cola 10 August and 11 August 2006, the Government of Kerala and the State Food (Health) Authority, respectively, banned the manufacture and sale of Coca-Cola in the State on the grounds that it was unsafe September 2006 – High Court of Kerala set aside the orders of the Government of Kerala and the State Food (Health) Authority

SOURCES: Based on article by P.N. Venugopal, 27 Jan 2006, Quest Features and Footage, Kerala, cited on Together India website, with additional information from Asian News International 20 August 2005; the Hindu Newspaper 20 August 2005; the Indian Resource Centre, 17 August, 2005; The Hindu newspaper, 25 October, 2005; Coca Cola Company Website, Press releases.

In August 2005, the plant was closed once again, this time by the Kerala State Pollution Control Board. The Board had sought clarification from Coca Cola of the excessive amount of Cadmium in the effluent. G Raja Mohan, the President of Kerala State Pollution Control Board stated:
“In the waste water treatment sludges we have found contents of Cadmium abnormally high. It goes up to 600 percent above the permissible limit. In the ground water the content of Cadmium is not that much. So, there is something which they are using in the raw materials.”

In October 2005, the State Government of Kerala announced it would support the Village Council local activists by challenging Coca Cola’s right to extract water from common groundwater resources in the Supreme Court of India. In an official press release, Health Minister K. K Ramachandran said:
“the Government will stand by the people in whichever court the company goes. The right over water and air is the right to live. The Government will not allow stopping of these two lifelines of the people.”

On 4 January 2006, following decisions of the Kerala High Court, the Village Council renewed the Coca Cola company’s licence for three months but laid out thirteen conditions. The first of these was that the company shall not use groundwater from Perumatty Panchayat for industrial purposes, or for producing soft drinks, aerated carbonate beverages or fruit juice. The Village Council cited the 2004 Supreme Court decision of M C Mehta v Union of India and the notification by the Kerala State Groundwater Department that village is ‘over exploited’ with regard to groundwater.

Supreme Court Judgement recognises the right of citizens to use water In M C Mehta versus Union of India 2004(12) SCC118, the Supreme Court of India recognised that: Groundwater is a social asset Citizens have the right to the use of air, water and earth as protected under Article 21 of the Constitution (the protection of life and personal liberty) It further states that the environmental balance is to be maintained and wherever groundwater is required for domestic and agricultural needs, priority is to be given to these.

Source: PN Venugopal, 27 Jan 2006, Quest Features & Footage, Kerala, cited on Together India website

In June 2006, the newly elected State Government of Kerala assured community leaders that it will take proactive measures against the Coca-Cola bottling plant in south India. On June 15th 2006, Chief Minister Mr. V. S. Achutanandan and other cabinet members submitted a memorandum outlining their demands. These demands included the permanent closure of the bottling plant in Kerala, compensation for the affected community members and prosecution of the Coca-Cola Company for criminal offences.

In August 2006, this brought a new twist to the ongoing saga. The Kerala State Pollution Control Board ordered a ban on the manufacture and sale of Coca Cola in the State questioning the safety of the product itself, based on allegations that it contained pesticides and harmful chemicals in a report by an NGO, the Centre for Science and Environment, New Delhi.

Coca Cola put out a press release stating:

“We are completely confident in the safety of our soft drinks in India because they are produced to the same level of purity, regarding pesticides, as the stringent EU criteria for bottled water.

We support the adoption of stringent, science-based rules by the Indian government regarding levels of pesticides in soft drinks. The rules should be based on sound and validated testing methodologies. We continue to work with relevant government bodies, industry associations, non government organizations (NGOs) and the scientific community to develop and finalize criteria and associated testing methods for pesticides in soft drinks.

We have the same uncompromising commitment to product safety and quality in India and everywhere we offer our beverages around the world, and independent third parties regularly audit all plants for compliance. The Coca-Cola Company has stringent criteria for all of the ingredients used in our beverages. These criteria are backed by internationally accepted analytical testing protocols for these ingredients.

Our soft drinks in India have been regularly tested and evaluated by the world renowned and independent Central Science Laboratories (CSL) and all tests show no detectable level of pesticides.” – Coca Cola Media Statement Regarding the Safety of Coca Cola Soft Drinks in India, 9 August 2006.

However, in September 2006, the High Court of Kerala set aside the orders of the Government of Kerala and the State Food (Health) Authority banning the manufacture and sale of Coca-Cola in the State. The High Court observed that the ban could not be justified since it was based solely on a report by an NGO.

The State Government of Kerala has now challenged the extraction of water by Coca Cola in proceedings before the Supreme Court. The State Government argues that the company is taking water from poor communities, but according to a press article in October 2006, the Village Council was not pressing for the case in the Supreme Court to be listed for hearing. It appears to believe that as long as the conditions imposed by the Village Council are not fulfilled, the plant cannot reopen.

Nevertheless, water remains a problem for the villagers. With its groundwater still polluted, Plachimada now gets its drinking water through pipes, that provide water for only a few hours once in two days, and through tanker lorries which also arrive once in two days. Fifteen tanker-lorries of water are supplied by the government, and 15 more by the company.

Villagers remain particularly concerned at the pollution of the scarce remaining groundwater and land which they blame on the discharge by the Coca-Cola company of its waste into the surrounding fields.

Although the Coca Cola factory in Plachimada has remained closed since 2004, locals are not satisfied with simply closing the plant; they want justice for the damage caused to health and the environment. As the protestors complain:

“It’s true that the company is not functioning, but that is not enough. We must get compensation for all the crimes committed by the company.”

Whether or not the ban finally stays, the agitation in front of the factory gate is continuing. As Kaliamma, one of the several tribal women squatting in the temporary ‘agitation tent’ says: “Our problems have not been solved.”

Global protests against Coca Cola

Protests about over-extraction of ground water in India and Sri Lanka by Coca Cola’s subsidiary companies are impacting on the parent company. Strong concerns dominated the company’s annual general meeting on 19 April, 2006, in Delaware, USA. A group of protesters shouted outside the meeting, waving banners with messages such as: “Coca-Cola: Stop De-Hydrating the World” and “Coca-Cola: Destroying Lives, Livelihoods and Communities.”

Inside the meeting, nearly 20 shareholders spoke on behalf of campaigns from India and Colombia. A proposal tabled by a shareholder called on the company to “prepare a report on the potential environmental and public health damage of each of its plants, affiliates and proposed ventures extracting water from areas of water scarcity in India”, but failed to receive any positive response from the company.

In its statement against the proposal, Coca Cola stated that it “recognizes that water is a precious natural resource under growing stress around the world.” It set out the actions that the company has taken to address the risks associated with water extraction and dealt with the complaints in Kerala.

“As to groundwater issues in southern India specifically, the Kerala High Court ruling released in April 2005 (the result of a year-long independent study) stated that our facility was not the cause of water shortages in that community. The study showed that a cycle of three years of short monsoon seasons in the Kerala area was the main contributor to the local water shortages. Through our rainwater harvesting efforts in several communities and plant operations in India, we currently are returning a significant portion of the water we remove from aquifers for production purposes.

“Additionally, the Company has initiated partnerships to set up local rainwater harvesting projects in communities around the country and to mobilize local residents behind these water conservation efforts. These projects combine modern technology with the reinstatement of traditional methods of water management that had fallen into disrepair in some local communities.

“The Board understands the need and desire for transparency in all matters including environmental safety and health issues related to our operations in India and elsewhere. However, we feel that this proposal is unnecessary at this time because our above-described existing environmental, health and safety policies, practices, and reporting methods provide a wide range of information regarding the impacts of our operations throughout India and the world. Furthermore, the Board believes that producing the report called for in this proposal would create a redundant use of Company human and financial resources.”

The campaign against Coca Cola has spread, particularly on college and university campuses, as well as among trade unionists and religious organisations. The India Resource Centre published a press release the day following the Shareholder meeting stating: “Even as Coca-Cola officials were trying to deal with the scores of protesters at its meeting, the campaign to hold Coca-Cola accountable was producing damning results for the company. The Union Theological Seminary in Manhattan, New York, a graduate school of theology which trains students to be ministers in the Christian faith, just announced on Tuesday that it was banning the sale of Coca-Cola products on its campus.

In India, a new campaign was announced in Gangaikondan, in the southern state of Tamil Nadu, against a Coca-Cola bottling plant under construction. And a massive rally is planned in Plachimada, Kerala on April 22, where Coca-Cola’s bottling plant has remained shut down for over a year because the village council has refused to renew Coca-Cola’s license to operate.”

In November, 2006, the Chairman and CEO, The Coca-Cola Company, E. Neville Isdell, spoke about the challenges to Coca Cola in India at the Nature Conservancy in Atlanta, Georgia, USA. He remarked:

“In India, we have been challenged to demonstrate our commitment to water stewardship. While we are not even close to being one of the largest users of water, we are certainly one of the most visible, and have been subject to criticism that we are depleting groundwater aquifers in the State of Kerala. Let me be very clear: Coca-Cola has a shared interest with the communities where we operate in healthy watersheds — because they sustain life and our business. And the last thing we would ever do is spend millions of dollars to build a plant that would run itself dry.

“Accordingly, we are working with many partners across India to improve watershed management, and with the Central Ground Water Authority, local governments and communities to expand the use of simple and effective rainwater harvesting technology. To date, we have installed rainwater harvesting systems in 200 locations, including schools and farms, that are helping recharge aquifers when the rains come.”

Sources: This section is based on a wide variety of sources including court judgements, press releases and official statements from Coca Cola. These include: Permatty Grama Panchayat vs state of Kerala, High Court of Kerala 2003; Coca-Cola: Continuing Battle in Kerala, Coca-cola plant must stop straining water Indian Resource Centre July 10, 2003; Coca-cola plant must stop straining water, The Guardian 19 December 2003; W.A.N0.2125 of 2003 and W.A.N0215 of 2004 Judgment 7th day of April 2005, M. Ramachandran and K.P Balachandran, JJ High court of Kerala 2005; Coca-Cola Protestors Attacked by police: four hospitalized, R. Ajayan, Plachimada Solidarity Committee (India) Amit Srivastava, India Resource Center, August 2005; Kerala Pollution Board orders Coke plant to close, Asian News International 8/20/2005; State defends village council decision to revokes Indian licence, Indian Resource Centre, September 2005; Health Minister: Coke plant will not be allowed to function The Hindu, 25 October2005; Kerala Government Assures Proactive Action Against Coca-Cola Meeting with Community Leaders Ends in Major Commitments from State Officials, Indian Resource Centre : 19 June, 2006; Kerala assures proactive action against Coca-Cola one world. South Asian; Article by M Suchitra and O.N. Venugopal, 03 Oct 2006, The Quest Features & Footage, Kochi, cited on the India Together website; Shareowner Proposal Regarding Environmental Impacts of Operations in India (Item 7)by William C. Wardlaw, III, Annual Meeting of Coca Cola Shareholders, 2006; press releases, Coca Cola Company; articles from the India Resource Centre website.

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Haider Ajaz

Rakhi Sawant case--FIR -Arrest of the petitioners stayed as a consequence of FIR - Allahabad High Court- Dated 10/12/2010

Allahabad High Court

Judgement Dated: 12/10/2010 12:00:00 AM
Misc Petition : Criminal Misc. Writ Petition No. 22127 of 2010
Indian Penal Code ,1860 - Section: 306,504,120-B. I.P.C

Rakhi Sawant....Petitioner

Versus

State of U.P and others...Respondents



Head note: FIR -Arrest of the petitioners stayed as a consequence of FIR - Allahabad High Court- Dated 10/12/2010

Judgement: JUDGMENT

Present petition has been preferred for the relief of quashing the First Information Report dated 12.11.2010 registered at case crime No. 572 of 2010 under sections 306, 504, 120 B I.P.C PS Prem Nagar District Jhansi attended with the relief of writ of mandamus commanding the respondents not to arrest the petitioner for the aforesaid offences.

As would transpire from the record, the first information report was lodged by the respondent no. 4 namely, Savitri Devi, who happens to be the mother of the deceased Laxman Ahirwar alleging that her son had tied nuptial knots with one Smt Anita on 1.2.2010 and that after sometime of marriage, there was connubial discord between the husband and wife and as a result, Smt Anita deserted her matrimonial house in a huff.

Thereafter, the deceased endeavoured hard to win her back to her matrimonial house but she refused to relent. In the meantime, it is alleged, co accused contacted the deceased and insisted with him to take aid of the Reality show known as ““Rakhi Ka Insaf”“ being exhibited on NDTV Imagine conveying at the same time that it would resolve discord between him and his estranged wife. It is further alleged that the deceased fell prey to the persistent persuasions of the co-accused and he agreed to participate in the Reality show and consequently, he completed all the formalities before participating in the programme.

It is further alleged that on 13.9.2010, the deceased alongwith other family members left for Mumbai and when they arrived at Film Studio situated in Goregaon at Mumbai, Smt Aneeta and her family members were already present there. While the programme was being recorded,
Rakhi Sawant Anchor of the programme, it is alleged, used the offensive language against the deceased and at one stage, called him impotent (NAMARD) without any valid proof besides insulting him in public. The aforesaid Anchor also maligned in public Balbir brother of the first informant of his being involved in illicit relationship while using extremely derogatory language against other family members present in the entire programme. When the family members present there remonstrated with the Anchor asking her to desist from using offensive and highly derogatory and abusive language, her bodyguards jumped in the fray and they also hurled unbecoming and offensive language and manhandled the deceased and family members present in the programme. The aforesaid programme was telecast on TV on 23.10.2010 which was viewed by the entire public of the country.

It is further alleged that her son became distraught and distressed on account of his portrayal in unpleasant light in the show and as a result, he was unnerved and slided into trauma and began to dread his own shadow and his condition took a turn for the worse so much so that he hardly slept during night and had developed aversion to the food and whenever he was tried to be mollified, he cried saying that Rakhi Sawant had made his life hell and his life is worse than a death and that he has no desire to live any further in this world and solicited to let him die in peace. He was taken to medical college Jhansi for treatment where he was diagnosed as being tension stricken. It is further alleged that his son was living a normal life before participating in the programme and during the programme he was hurt by the offensive and derogatory words used by Rakhi Sawant and as a result, her son pined away to death.

We have heard Sri Gopal Chaturvedi, learned Senior Advocate appearing for the petitioner and also Sri Ali Hasan learnedcounsel appearing for the complainant respondent no.4. We have also heard learned AGA for the State Authorities and perused the materials on record.

To begin with, Sri Gopal Chaturvedi Senior Advocate assisted by Sri Rahul Agarwal and Sri Shishir Tandon appearing for the petitioner canvassed that ingredients of section 306 IPC are not at all disclosed from a punctilious reading of the FIR and in connection with this submission, he drew attention to the agreement (Annexure 2 to the writ petition) that the deceased and his family members had agreed to participate in the programme attended with further submission that before recording of the programme began, they had agreed and they had entered into agreement and even after the programme had been recorded, the participants were again enquired about objection, if any, in respect of contents of the programme but even at that stage, there was no remonstration or objection from any one of them and they even signed personal release letters and evinced their satisfaction which are being annexed to the petitions as Annexures 4,5 and 6.

The learned counsel emphatically denied the allegations that after the programme had been recorded on 16th Sept 2010, the production house had not received any communication. It is also stated that promos were aired from Ist Oct 2010 on the TV channel showing clips of the episode and even then there was no objection, protestation or query from any quarter. It is further alleged that Laxman died on 10.11.2010 as a natural death and further that no post mortem is shown to have been conducted to prove the facts otherwise. The learned counsel also denied that there was any vestige of instigation so as to lead the deceased to commit suicide. In so far as petitioner is concerned, it is argued that she was the anchor of the programme. In para 4 of the petition, the averments made are as follows:

““That, the petitioner states that the background facts are that sometime in the year 2010, the TV channel Imagine TV conceived an idea of airing a reality show later named as ““RAKHI KA INSAAF’‘ in which the petitioner would be anchoring the show and inviting citizens from various parts of the country who had inter alia disagreements, family problems in relation to matrimony, property or such other several disputes,and who would participate in the show and who wanted to share their grievances on television and leave it to the petitioner to listen to their grievances in the presence of a large numbers of audience invited from various walks of life in the country and trry and resolve the disputes, which would be recorded and broadcast on air. The programme would be pre-recorded at a venue provided by the Production House well before the said Programme was to be aired by the TV Channel.”“

In para 5, the averments made are as follows:
““That the petitioner states that the Production House invited the participants who were willing to and wanted to air their grievances in the presence of an audience and had agreed to be part of the programme. Towards that end, participants entered into separate agreements with the Production House wherein they voluntarily agreed to participate in the Reality Show, and subject themselves to any questions being asked in the Reality show and further agreed to have the Programme recorded with the various questions and answers that they were being subjected to and record their grievances and the attempt by the petitioner to resolve the differences and air the entire pre-recorded Programme on IV.....”“

Here we would not flinch from mentioning that agreeing to be subjected to any questions and answer does not include using derogatory language and calling a person impotent.

The learned counsel appearing for the petitioner termed the allegations as false, frivolous, absurd and inherently improbable besides being concocted. He also referred to clarification issued by M.L.B Medical College and Hospital Jhansi in which it was denied that it was a case of suicide and they attributed the cause of death as natural death. The learned counsel also drew attention to the fact that the deceased died a natural death on 10th Nov 2010 while the FIR has been lodged on 12th Nov 2010 after much deliberation attended with the submission that there was not a scintilla of allegation in the FIR that the deceased committed suicide. It is further argued that the FIR is belated being lodged on 12.11.2010 after much deliberations.

Before proceeding further it would be but appropriate to sum up the facts bearing on the case in order to make our own assessment whether it is a fit case for abetment of suicide, and whether there is any element of suicide. It is worth noticing here that the programme ““Rakhi Ka Insaf”“ was recorded on 16th Sept in which the deceased, maternal uncle of deceased Balbir, maternal Aunt of deceased Puja and two of his neighbours in which his estranged wife Anita and her parents had also been invited and were present. The episode was shot in the Goregaon Film Studio at Mumbai.

It would appear that before and also after the episode had been recorded, the participants signed the requisite documents agreeing to its contents and terms and had also voiced their satisfaction and at no stage, they demurred to any of the queries and shots of the programme which are annexed as Annexures 2,3,4,5, and 6. It would also appear that promos were aired on TV from Ist of Oct 2010 in which clips of episode were aired which was to be telecast on 23.10.2010 on NDTV Imagine. Even then, there was no vestige of objection from any quarter upto the date when the programme was telecast on TV. The deceased is stated to have breathed his last on 10.11.2010 while the FIR was lodged on 12.11.2010 at the police station by the mother of the deceased. There is reference of clarification of MLN Medical College Jhansi in which it was denied that it was a case of suicide further explaining that the deceased died his natural death.



By this reckoning, it is pellucid that there was no objection to the programme being aired and there was no complaint upto the date prior to lodging of the FIR.

Now the question arises whether it should be treated as a case of abetment to suicide. Section 306 IPC punishes abetment of suicide. For instance, if one person persuades and instigates another to kill himself by taking poison and he takes it, the person would be liable as an abettor under this section. the offence of abetment must conform to the definition of abetment given in section 107 IPC. Suicide has been defined to be self murder. The act of a person encouraging another to commit suicide is certainly criminal and his act is punishable in law and no doubt, such act is condemnable from every point of view. It being relevant, the section 306 IPC is excerpted below.

““306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”“

Section 107 IPC being also relevant is quoted below.
““107. Abetment of a thing A person abets the doing of a thing, who - First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1- A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”“

The well settled position in law is that the authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.

In R.P. Kapur v. State of Punjab AIR 1960 SC 866 this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
In State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. One of the illustrative categories indicated by the Apex Court which in our view is germane to the controversy involved in this petition is as follows:

““(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.”“

A supplementary affidavit has also been filed sworn by Manoj Prabhakar Karnavar as Pairokar of the petitioner. In para 2 of the said affidavit, it is averred that the petitioner used the word ‘‘Namard’‘ while addressing the deceased Laxman Singh Aharwar. This word, it is explained was used in the context to mean a person who is a coward and unable to tackle the atrocities which had been committed on his wife Anita Aharwar by the uncle (Mama) of the deceased Laxman Singh Aharwar. In para 3 of the affidavit, it is averred that the petitioner moved by the plight of Anita which she suffered at the hand of Laxman’‘s uncle to the extent of attempt to sexually molest/harass her, the petitioner at the spur of the moment used the word with the avowed object that the deceased was unable to stand up against the atrocities being committed on Anita by maternal uncle of the deceased and she never intended to mean that the deceased was sexually impotent. In para 4, it is averred that the petitioner did not mean to intentionally show disrespect to any person through her words or actions in the show.

No doubt, ingredients of section 306 IPC may not be present from an ex-facie reading of the FIR but at the same time, the manner in which show has been recorded and aired does speak volumes about the ethical value of such programme. The quintessence of what is a Reality show is that it features talent culled from the ranks of ordinary people not professionally trained actors. It is believed that Reality show producers typically shoot hundreds of hours of footage per episode and use creative editing to create a narrative thread. Subjects of a Reality show may be given some rudimentary directions off screen but the point is to allow the performers to act and react as normally as possible. A Reality show behaves naturally. The intent of the show as projected by the petitioners in the writ petition appears to be to repair the frayed and fraught relations between the disputing parties so that the wounded situation may be healed into a healthy rapprochement. Even if it be believed that the intent of show was to allow the parties to give vent to the pent up feelings but it was not permissible for the Anchor to have used the unpalatable and offensive words like ““NAMARD”“ as alleged in the F.I.R. The words used by the Anchor calling the deceased impotent (NAMARD) in the show are highly raunchy, offensive, uncivil and against all tenets of ethical norms.

As stated supra, agreeing to be subjected to any question or answer, does not permit the Anchor to use indecent and derogatory language like calling a person impotent. The show, we feel, should not transcend the bounds of ethical value with due sensitivity to the society at large which forms the viewer-ship of such shows also with due regard to the creed and culture of our country. Such Reality shows seem to be vying with each other keeping their eyes peeled to T.R.P with the avowed object in mind of enhancing its viewer-ship. It is high time, the Govt would step in and ensured that such programme which are unpalatable and offensive to individual self esteem and self respect are not allowed to be telecast.

In the instant case, there was no suicide note left behind by the deceased nor is there anything on record to show that the deceased committed suicide. The case registered against the petitioner is prima facie without any factual foundation. We find that this is a fit case where the extraordinary power under 226 of the Constitution of India is to be invoked.
In the facts and circumstances, it is directed that Sri Ali Hassan appearing for the respondent no 4 may file counter affidavit within 4 weeks. Learned AGA may also file counter affidavit within the aforesaid period. Rejoinder affidavit if any may be filed within two weeks next thereafter. List this matter immediately after expiry of the aforesaid period.


In the meanwhile, the arrest of the petitioner who is wanted for offences as indicated above, shall remain stayed.

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Haider Ajaz