EPW: Cola War in Plachimada
Anivar Aravind
June 18, 2005
Corporate Violence, Legal Nuances and Political Ecology
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Cola War in Plachimada
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The verdict by the Kerala High Court against the Perumatty panchayat
shows the judicial apathy towards a struggle symbolic of the effort to
assert control over natural resources that the people rightfully see
as theirs. A critical analysis of the expert committee report that has
influenced the verdict to an extent.
K Ravi Raman
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http://www.epw.org.in/showArticles.php?root=2005&leaf=06&filename=8761&filetype=html
The April 7, 2005 verdict of the division bench of the Kerala High
Court virtually entitling Hindustan Coca-Cola Beverages to resume
operations in its cola factory in Plachimada has sparked off protests
and agitations. The verdict which favours a multinational giant in its
fight against an indigenous community that struggles for its very
livelihood is inexplicable. The carefully considered decisions, the
meticulous attention to detail and the evenly poised arguments that
epitomise a competent judiciary seem to be sadly missing, leaving the
scales of justice wildly askew.
Coca-Cola had set up its plant in Plachimada, a small hamlet in the
district of Palakkad, Kerala in March 2000, within a few years of its
re-entry in India in 1993 in the wake of liberalisation. The
multinational was accused of creating severe water shortage, of
polluting its groundwater and soil, and also of distributing toxic
waste as fertiliser to farmers in the area. Responding to the mounting
pressure from the local community – particularly the adivasis and the
dalits – the Perumatty panchayat refused to renew Coca-Cola's licence
for further production; after an initial tussle with the panchayat,
the state government, too, was forced to impose a temporary ban on the
drawing of groundwater owing to the severe drought conditions that
prevailed in the region; the factory has remained closed since March
9, 2004.
On December 16, 2003, in a landmark verdict, the single bench of the
Kerala High Court upheld the position of the panchayat and directed
the company to seek alternative sources of water for its bottling
plant in Plachimada. The single bench maintained that groundwater
belonged to the people and that the government did not possess the
right to allow a private party to extract it in such huge quantities,
it being "a property held by it in trust". It also ruled that the
company should be allowed to use only that quantity of groundwater
equal to the amount normally used for irrigating crops in a 34-acre
plot, the actual area occupied by the company. Coca-Cola appealed
against the verdict of the single bench, in response to which an
expert committee led by the Centre for Water Resources Development and
Management (CWRDM), Kozhikode was constituted on the directive of the
high court to conduct a scientific enquiry into the 'allegation' that
the functioning of the cola factory had caused water scarcity in
neighbouring areas. The financial conclusions of the committee support
Coca-Cola's arguments. Now, the division bench of the Kerala High
Court (hereafter KHC) has ruled in favour of the cola company,
sweeping aside protests from the local community and the panchayat in
addition to the decision of the single bench of the high court, in the
process.
Expert Committee Report
The KHC has drawn on the expert committee report1 to hold that the
wells in Plachimada are drying up in summer due to poor rainfall and
notwithstanding stoppage of extraction of water by the company after
March 2004, and that keeping the plant idle, on the assumption that
the company is the cause of the shortage of water, is not justifiable.
The court also observes that the drying up of ordinary wells is not a
phenomenon specific to Plachimada, and that by natural seepage during
the rainy season, water travels down to the lower reaches, recharging
groundwater stores in the process. Referring again to the expert
committee report, the KHC maintains that out of the annual available
groundwater resources of 66.7 million cubic metres (MCM) in the
Chittur block to which Plachimada belongs, the committed requirement
for domestic and irrigation purposes up to 2025 AD would be 62.5 MCM
of water, leaving 4.2 MCM for other purposes such as factory use. The
annual requirement of the company, at the average rate of 5 lakh
litres per day, works out to 0.1825 MCM, which would be less than 5
per cent of the available balance of 4.2 MCM. Within the Plachimada
watershed, the company would require only 4.97 per cent of the average
annual available groundwater resources of 3.67 MCM; the KHC thus
recommends the extraction of 5 lakh litres per day by the company and
suggests that it also undertakes supply of drinking water to the
residents before June 30 this year. The KHC rules that "the panchayat
has no ownership about such private water sources, in effect denying
the proprietary rights of the occupier". It avers that if such a
restriction is to apply to a legal person – in this case Coca-Cola –
it may have to apply to a natural person as well. The court holds that
the Perumatty grama panchayat was not justified in rejecting the
company's application for renewal of licence in the absence of
authentic scientific assessment. It had no legal authority to cancel
the licence for functioning of its unit for any of the reasons it had
cited. The panchayat has been directed to consider grant of licence if
the company satisfied the other statutory conditions such as issues of
licence under the Factories Act and of pollution certificates from the
State Pollution Control Board.
The Critique
It is quite clear that the HC has relied on the report of the expert
committee for its judgment. However, the constitution of the expert
committee itself was undemocratic. The 11 member committee did not
have a single representative of the panchayat, not to speak of
representation from the local community. The terms of reference too
were quite inadequate. For instance, the expert committee's suggestion
that the company be granted permission to extract water, was based on
the assumption that water would be recharged according to the rainfall
received. This holds true with respect to dug wells but it may not be
equally applicable to bore-wells, which tap water from the deep
aquifer where it has accumulated over centuries; the deep aquifer is
in no way replenished by the annual rainfall received in a particular
area or in a particular year. Most importantly, the Indian
government's water policy in general treats water in the deep aquifer
– from where Coca-Cola now extracts water – as precious reserves to be
saved for use in times of crisis; it is certainly not meant for
commercial purposes. Moreover, a rephrasing of the question to address
the presence of water scarcity within 50 metres of the company or in
its immediate vicinity, instead of seeking shortage of water in
'neighbouring areas' would have brought the entire enquiry into focus.
Moreover, the CWRDM could have at least conducted the Aquifer
Performance Test to assess the optimum water yield in the aquifer
concerned; it should also have assessed the destructive interference
in the nearby wells due to pumping by the factory. Further, it could
also have conducted radio-isotope tests to ascertain the locally
specific rate of natural recharge of rainfall. Instead of thus
assessing the environmental impact of large-scale water extraction,
the CWRDM has studied the availability of water in Chittur block on a
macro scale and has extended the same exercise on a micro level to
Plachimada; it has then come up with estimates regarding the
availability of water and suggested that the company be allowed to
draw a certain percentage of the available balance after meeting the
committed requirement.
It must be mentioned here that the inadequacies and drawbacks of this
study had already been pointed out by the Centre for Science and
Environment (CSE), New Delhi, the state government as well as the
panchayat; it is in complete negation of these dissenting views that
the KHC has arrived at its verdict. Based on a study done by the CSE,
the panchayat had pointed out that the expert committee had
overestimated the groundwater availability in the area, given that the
natural recharge of rainfall was barely adequate to meet the domestic
and agricultural needs and, secondly, that it had underreported the
daily consumption of water by the multinational giant. It remains to
be seen whether the findings of the expert committee can indeed be
corroborated. The expert committee's estimate of an annual recharge of
groundwater to the tune of 20 per cent in Chittur and 11 per cent in
Plachimada has been accepted by the KHC verbatim. But it has escaped
the court's notice that this estimate does not hold true with respect
to Chittur block which, with its black granite soil, has an annual
recharge potential of only 5-8 per cent; in such granite soils, it
could be still lower at 2-4 per cent as assessed by the Central
Groundwater Board (CGB) itself.2 Hence the expert committee estimation
of 20 per cent natural recharge of groundwater in Chittur block is not
possible. Going by the CGB guidelines, the panchayat has argued that
the Chittur with its black granite soil has a natural recharge
potential which works out to only 16.62 to 33.2 MCM as against 66.7
MCM had the recharge potential been 20 per cent.3 It would not even
suffice for the committed requirement of domestic and irrigation
purposes (62.5 MCM till 2025 AD); the water available for Coca-Cola
would in effect be nil. No further proof is needed for the fact that
Plachimada exists in a state of drought, the government already having
declared it so.
The availability of groundwater is also worked out based on the annual
average rainfall in the region over the previous decade, which stands
at 1,413 mm for the region. But the committee has glossed over the
fact that there has been a consistent decline in rainfall over the
past five years, and that if worked out, the average annual rainfall
would be only 1,172 mm and the average groundwater availability, even
at 20 per cent rate of infiltration would be far lesser than the
committee's estimate. The report then intrinsically counters its own
findings and logic. For instance, the expert committee viewed that 5
per cent of the water remaining after meeting the committed
requirement of domestic and irrigation purposes could be used for
other purposes such as for factory consumption. This holds good with
respect to the 'macroanalysis' of Chittur block which, the study
states, has an available balance of 4.2 MCM for industrial and other
uses. The 0.1825 MCM annual requirement of Coca-Cola is a little less
than this 5 per cent of the balance amount of 4.2. But when we turn to
the 'microanalysis' of Plachimada, the permitted 5 lakh litres a day
(0.1825 MCM annually) forms 73 per cent of the balance of 0.25 MCM.
The court has permitted the extraction of 73 per cent of the balance
groundwater and that in an area which both the HC and the expert
committee agree has had a decline in rainfall as well as an
aggravation of the water scarcity due to unregulated withdrawal of
water. And if the 5 per cent ceiling as applicable to Chittur does
hold any sanctity – it has not been substantiated by any authority –
it would permit an extraction of only 0.0125 MCM per annum of
groundwater in Plachimada which would amount to just 34,246 litres per
day. The many inconsistencies and the deviation from a reasonable norm
that are manifest in the expert committee report have clearly not been
impressed upon the KHC which has, without demur, accepted that the
"final report of the expert committee is comprehensive".
The state government had confirmed a depletion of groundwater in the
area surrounding the factory and had appealed to the KHC that
Coca-Cola should not be allowed to extract water further. The
government after its initial objection to the cancellation of the
licence, reported to the state legislative assembly that the ground
water department had subjected 16 wells around the Coca-Cola plant to
study from March 2002 to August 2003 and had found that the water
level had gone down by extents ranging from 0.22 cm to 1.37 cm in nine
wells. Moreover, three wells had even gone dry during this period.
This was attributed to pumping by the company, coupled with poor
rainfall and this justifies the government's earlier decision to ban
the extraction of groundwater by the company from March 2004, a ban
that still continues due to the prevalence of drought. However, the
KHC now faithfully defends Coca-Cola's 'right' to resume production
arguing in all sincerity that the wells in Plachimada are dry not due
to overextraction by the factory but due to the reduced rainfall and
the consequent drought. The incoherence of this argument is obvious.
If the wells are dry owing to drought and not due to overextraction,
the court seems to say, Coca-Cola may draw as much water as is
necessary for the functioning of its plant! The lesser said about the
hapless people of Plachimada the better. Their innocent assertion that
they had never known water scarcity prior to the arrival of Coca-Cola
goes unheeded. To quote Milamma, one of the most committed of the
women protesters, "we have been living here for the past 25 years. We
never went out to bring water. But today we walk a distance more than
two kilometres to fetch water".4
The question of the pollution of groundwater which is in fact, far
more serious an issue, has not been addressed at all. But in this
respect the panchayat are also to be blamed, for, as the court has
rightly pointed out "the notice was issued only on the ground of
excessive extraction of groundwater and the decision to cancel the
licence was taken on the basis of that ground". The presence of toxic
contents in the solid waste discharged by the company was reported by
'Face the Facts' on BBC Radio on July 25, 2003, based on a study done
by David Santillo, University of Exeter. Following the BBC report,
several governmental and quasi-governmental organisations such as the
Kerala State Pollution Control Board (KPCB) and the Central Pollution
Control Board have substantiated these facts but after a great deal of
contestation. As the sludge supplied by the company to the farmers as
fertilisers contained dangerous levels of cadmium and lead, it
directed the company to set up hazardous waste management measures.5
Meanwhile, studies conducted by the CSE revealed that the soft drinks
produced by Coca-Cola and PepsiCo contained toxic pesticide residues;
a Joint Parliamentary Committee led by Sharad Pawar was constituted to
verify the findings of the CSE which in fact were found to be true.6
The Supreme Court Monitoring Committee which visited Plachimada on the
request of the JPC also reported that the drinking water source
adjacent to the factory was contaminated due to the "illegal dumping
of wastes"; this includes a public well which is used by not less than
40 families. Subsequently, the KPCB too confirmed that the company
possessed no "satisfactory facility for the disposal of hazardous
waste generated" in the factory and that the improper disposal of
hazardous wastes from the factory had affected the "drinking water
sources of a large number of public residing near the premises";
Coca-Cola was thus refused authorisation by the KPCB, which in effect
was a closure notice.7
Further, the state groundwater department also revealed that hardness
and the presence of calcium and chlorides were higher than the
permissible limits in certain wells, which might have been due to the
untreated effluents let out by the company. Accusations regarding the
Total Dissolved Solids in the nearby wells due to the discharge of
effluents and the possible health hazards that they pose are aspects
which Coca-Cola had deliberately concealed from the public; those who
pleaded for the panchayat too have failed to bring it to the court's
notice. With the result that the KHC, in its current ruling, cites a
letter addressed to the KPCB pointing out that "every possibility of
any waste product contamination has been plugged up" and "may be the
Pollution Control Board has no objection in permitting operation".
Before making such suggestions, the KHC should have at least consulted
with the Pollution Control Board. Given the level of technology and
the nature of the production process, how would it be possible to
avoid any waste product contamination without stopping the very
production of cola? How is it possible for the KPCB to permit a
resumption of operations? A mere alteration in the manner of disposal
of sludge, which the company might come up with to garner the
requisite authorisation which was temporarily suspended by the KPCB as
per the direction from the Supreme Court, would not leave water
unpolluted, an aspect, which neither the single bench nor the division
bench has dwelt upon.
The KHC has not paid attention to the other issues of public concern
such as the presence of toxic contents in the drink. Knowing fully
well that cola production involves the use of identical ingredients
and processes at least within India, on what basis does the court
'protest' that samples from Plachimada had not been tested? Would it
really have given different results? What is more samples from
Plachimada have been tested by the health department of the state
government and have been found to contain hazardous pesticides. This
has been clearly cited in the report of the JPC8 and it is unfortunate
that the court has refused to countenance this issue on the ground
that the panchayat is "not competent to go into the quality of the
beverages produced and it is for other appropriate authorities to look
into such allegations". Just as in the case of pollution of
groundwater, the court has managed to put up a tenuous argument to
preempt discussion on the issue of the quality of the beverage.9
Conclusion
The entire angle from which the expert committee has approached the
problem seems questionable; rather than addressing the question with a
view to a restorative justice, the authorities have resorted to
hair-splitting legal logic. To draw a parallel between individual
extraction and large-scale extraction of groundwater is nothing short
of absurd. When an individual draws water from his well, it does not
hurt his neighbour at all. But when the company draws water the
neighbourhood runs dry as has been happening in Plachimada. The HC
ruling to the contrary seems inexplicable. One is also at a loss to
explain the eagerness of the judiciary to support a multinational
instead of its own people. The face off is between an indigenous
community that struggles for its livelihood and corporate capital that
seeks to accumulate further. More importantly, the constitutional
rights conferred by the sections 19, 20, 21, and 22 on natural persons
certainly cannot be considered applicable in the case of legal person
that the multinational represents as has already been pointed out by
legal luminaries.10 Further, when an agricultural-community struggles
for water in an area owing to the continuous extraction of water by a
corporate giant, one fails to understand the KHC rejection of the
single bench observation that priority should be given to the
agriculture sector. The cross-territorial implications of the current
verdict, unless countered, would be far-reaching.
The HC maintains that having granted permission for the company to
operate in the first place, it is unfair to refuse to "quench its
thirst". It is true that the authorities, which first granted
permission, did so without realising the true consequences of their
decision. But does it justify the continuation of operations by the
company even after it has became clear that its consequences are
far-reaching and detrimental to the interests of the local community
as a whole? How can the high court allow large-scale extraction of
water in a place that already suffers from natural water shortage?
What legal ethics could support the continued functioning of the
factory when it pollutes drinking water and wrecks the community
livelihood? The only answer to this problem is the total stopping of
water extraction and pollution by corporate capital – and to provide
compensation to the local people for the losses incurred – precious
water should thus be conserved for the day-to-day uses of the local
population. What we see instead is the sad spectacle of a judiciary
that is blinded by the glare of corporate anguish.
The judiciary, perhaps in its haste to interpret the law at the
expense of justice itself, has failed to realise that the local people
have been seeking justice without violence and that the movement they
have initiated spills over from the realm of human ecology to those of
political economy, indigenity and cultural identity.11 However, once
legal channels are exhausted as a means of resetting the scales of
justice, the local community or the resistance movement in Plachimada,
like any other community/movement in the world, would give up state
structures of negotiation. This is what has happened in the case of
land struggle by the adivasis in Kerala – after nearly three decades
of peaceful resistance, the adivasis still remain trapped in alien
legalities.12
The Cola Quit Plachimada Campaign, an amalgam of organisations acting
in defence of the local community which includes the People's Struggle
Committee, the Plachimada Solidarity Committee, the panchayat, the
Solidarity, the large number of NGOs and the National Alliance of
People's Movement13 have declared that they would continue their
struggle both within the court and out on the streets. They have also
been exerting pressure on the state government for legislative action
and to go for appeal against the multinational. The panchayat which
has declared Perumatty a 'Cola-free area' besides promoting
natural/health alternatives such as the tender coconut, has already
appealed to the Supreme Court; in arguing its case the panchayat must
seek an elucidation of the true extent of its powers in controlling
its resources as conferred by the 73rd constitutional amendment which
seeks to strengthen local self- government including the grama sabha
(village council).14 Given the history of the Supreme Court verdict in
October 2000 which cleared the way for the construction of the Sardar
Sarovar Dam which, one can hardly expect any miracles. A spreading of
the movement to ignite kindred movements such as the one against
PepsiCo in neighbouring Puthusseri panchayat would help widen its
local base, while a greater degree of cooperation with other anti-cola
struggles such as the one in Sivaganga (Tamil Nadu), Mehdiganj (Uttar
Pradesh) and Kala Dera (Rajasthan) would help articulate new
strategies and to democratise the movement further. This would clear
the way for a new understanding of the problem and might even give the
campaign a new sense of direction: a subaltern resistance largely led
by the subalterns themselves but without forsaking its current secular
complexion. Perhaps if the adivasis (and the dalits) were to speak for
themselves – whether in court or in the public sphere – the impact
would be far more decisive. Legal niceties and judicial procedures
would then be rendered redundant in the face of harsh realities in
these times of neo-liberal reforms and cultural globalisation.
Email: ravi...@cds.ac.in
Notes
[The author is grateful to C K Brahmaputhran and Sabeena Panicker for
helpful comments; the author has also benefited from discussions with
Veloor Swaminathan (convenor, Action Council), Vilayodi Venugopalan
(chairman, Adivasi Protection Council), R Ajayan (state convenor of
the Plachimada Solidarity Committee), Suresh George and C R
Neelakandan.]
1 Investigations on the Extraction of Groundwater by Hindustan
Coca-Cola Beverages (P) – Final Report, the investigation team
constituted vide Order WA/2125/2003 by the High Court of Kerala,
February 11, 2005.
2 Central Groundwater Board, Groundwater Resources of Kerala, CGWB,
Thiruvananthapuram, 2003.
3 Writ Petition Number 12,600 of 2004, KHC, Ernakulam.
4 Interview dated January 14, 2005, Plachimada.
5 Letter dated August 7, 2003 from KPCB to the Hindustan Coca-Cola
Beverages, Palakkad.
6 See the report of Joint Parliamentary Committee (JPC) on Pesticide
Residues in and Safety Standards for Soft Drinks, Fruit Juice and
Other Beverages, February 2004.
7 Letter dated March 23, 2004; From the member secretary, KPCB to the HCCBL.
8 Cited in JPC Report, op cit, p 14 and Annexure XII.
9 It is worth noting even as cola production commenced in the late
19th century Coca-Cola was alleged to contain poisonous substances
against which several suits have been filed in US courts, see Hutt,
Peter Barton, 'The Image and Politics of Coca-Cola: From the Early
Years to the Present', 2001,
www.leda.law.harvard.edu/leda/data/398/AlOthman.html; Frederic
Clairmont and John Cavanagh, 'Merchants of Drink: Transnational
Control of World Beverages', Third World Network, Malaysia, 1988.
10 See Justice K P Radhakrishna Menon, 'The Plachimada Verdict and the
Constitution', Mathrubhumi Daily, April 19, 2005.
11 For a discussion on such issues see Arturo Escobar, 'After Nature:
Steps to an Antiessentialist Political Ecology', Current Anthropology,
40 (1), February 1999:1-30.
12 see K Ravi Raman, 'Muthanga: A Spark of Hope', Social Analysis: The
International Journal of Social and Cultural Practice, Issue 1,Vol 48,
2004 and in Kapferer, B, (ed) State, Sovereignty, War, Berghahn Books,
Oxford, 2004:107-24; C R Bijoy and K Ravi Raman, 'Muthanga: The Real
Story: Adivasi Movement to Recover Land', EPW, May 17, 2003,1975-82.
13 The NAPM has launched its indefinite stir in the state capital on
May 17 under the leadership of Medha Patkar.
14 This would also help one to review the strengths and weaknesses of
the decentralised governance in a state like Kerala where it is
claimed to be a success.
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Anivar Aravind