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Big business going after whistleblowers in India: Activists paying the price of speaking up

A compilation

by sacw.net, 13 July 2011

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[In May 2011 Ramesh Agrawal and Dr. Harihar Patel based in Chhattissharh were arrested after Jindal Steel and Power co., a mighty corporation, charged them with defamation during an environmental clearance hearing.

Similarly early in July 2001 Rohit Prajapati in Gujarat is now facing a defamation case worth millions of rupees filed by Vapi Industries Association (VIA) and United Phosphorus Limited (UPL) and Avik Pharmaceutical Ltd. for exposing enviromental pollution in Gujarat. Posted below are relevant materials -sacw.net]

[On the case of Ramesh Agrawal and Dr. Harihar Patel:]

Amnesty International

UA: 165/11 Index: ASA 20/025/2011 India

Date: 02 June 2011 Date: 02 June 2011

URGENT ACTION

Indian environmental activists held

Two human rights defenders and environmental rights campaigners , Ramesh Agrawal and Dr Harihar Patel, were arrested on false charges on 28 May in the central Indian state of Chhattisgarh and denied release on bail. Ramesh Agrawal is now being held chained to his b ed at hospital where he is undergoing treatment for hypertension.

Ramesh Agrawal works for the environmental rights organization Jan Chetna, and Dr Harihar Patel, who practices indigenous medicine, were arrested on 28 May in Raigarh town, Chhattisgarh. They have been actively campaigning against the pollution caused by existing industrial projects and the potential negative environmental impact of proposed industrial projects in central Chhattisgarh, and have raised their concerns in mandatory consultations conducted by the authorities.

The two activists are also at the forefront of the campaign for the public disclosure of information relating to these projects which affect local Adivasi (Indigenous) communities and for ensuring that these are available to the communities. Their arrest, Amnesty International believes, is intended to stop their peaceful campaign activities.

The state police have charged the two men with “circulating defamatory material”, “disrupting public order” and “causing alarm and panic among the public” at a mandatory public consultation, held by the state pollution board at Tamnar village on 8 May 2010. The consultation related to the expansion proposal of a coal-fired thermal power plant run by the private firm Jindal Steel and Power. Concerns were expressed that the expansion would lead to the forcible acquisition of lands from the surrounding local communities by the authorities. The two activists had objected to the proposal and cited an official inspection report which stated that the expansion began before the mandatory clearances were given. Ramesh Agrawal also successfully petitioned India’s Ministry of Environment and Forests to temporarily suspend the terms of reference for the expansion. Following a complaint relating to the delay, the state authorities decided to arrest the two activists.

The two activists were sent to Raigarh prison until 3 June, and a local court rejected their appeals for release on bail on 2 June. Ramesh Agrawal, who complained of hypertension, was taken for treatment at a government-run hospital where he is being kept chained to his bed which amounts to cruel, inhuman and degrading treatment.

PLEASE WRITE IMMEDIATELY in English or your own language :

Urging the authorities to stop the illegal chaining of Ramesh Agrawal at the Raigarh hospital where he is being treated;

Calling on them to drop the false charges against Ramesh Agrawal and Dr Harihar Patel and release them immediately;

Asking them to take all necessary measures to guarantee that human rights defenders and environmental activists in Chhattisgarh are able to carry out their legitimate and peaceful human rights activities without fear of harassment and intimidation.

PLEASE SEND APPEALS BEFORE 14 JULY 2011 TO :

Chief Minister of Chhattisgarh

Dr Raman Singh
- Chief Minister’s Niwas
- Raipur 492001, India
- Email: cm at cg.nic.in

Salutation: Dear Chief Minister

Minister of Environment and Forests
- Jairam Ramesh
- Paryavaran Bhavan
- Lodhi Road, New Delhi 110003, India
- Email: jairam54 at gmail.com

Salutation: Dear Minister

From: Sagar Dhara

Date: Sat, Jun 25, 2011 at 7:56 AM

Ping pong bail in Chhattisgarh

The undersigned visited Raigarh and Raipur on 20-21 June 2011 and met
several people to meet Ramesh Agarwal and Harihar Patel and others and
find out more about their recent arrest. This is a very brief report.

Raigarh-based environmental and RTI activist, Ramesh Agarwal and
Gare-based (a village about 35 Km from Raigarh) Harihar Patel,
acupuncturist, were arrested by the Raigarh Police on 28 May 2011 on
the charge of defaming Jindal. According to Raman Agarwal, Ramesh
Agarwal’s son, the lower courts rejected bail twice, the first time
without citing any reason, and the second time, on technical grounds
that a third person named in the FIR, Rajesh Tripathi, is still at
large, and that Ramesh Agarwal had failed to mention in his bail
application that he had applied for anticipatory bail in the
Chhattisgarh High Court. Agarwal was chained to his bed for 2 days,
an act considered as illegal by the Supreme Court of India.

The High Court rejected Agarwal and Patels’ bail application today (23
June 2011) stating that the lower court had erred in rejecting their
bail application on technical grounds and not on merit, ie, failure to
mention the anticipatory bail application. The High Court order is
not yet available. The order seems to imply that the accused may have
to go back to the lower court and re-apply for bail.

The undersigned met about 50 persons, mostly elderly women, from
Patel’s village who have been doing a dharna under the scorching
summer sun, and now in rain, for Patel and Agarwals’ release.
Government officials have ignored them so far.

For years now Agarwal has been using RTI to peruse documents from the
union and state governments to prove that the Jindal group of
industries has been violating environmental and revenue laws. The
group, headed by Congress MP, Navin Jindal, owns and operates several
large industries and coal mines around Raigarh, very polluting sponge
iron plants and power plants. More recently Patel and Tripathi joined
Agarwal’s crusade against Jindal.

It appears that the immediate cause for Jindal’s ire against the
activists is the Ministry of Environment and Forest’s (MoEF)
stop-order on Jindal’s 2,400 MW coal-base power plant expansion plan.
Plant construction was started without MoEF’s environmental clearance
and on Chhattisgarh Mineral Development Corporation’s land. Based on
Agarwal’s letter written in March 2010 highlighting these
irregularities, MoEF was forced to act against Jindal.

The Superintendent of Police (SP), Raigarh, Rahul Sharma, told the
undersigned when they met him on 20 June 2011, that Jindal had
approached him with a defamation complaint against the three accused,
based on statements made by the three in the environmental hearing for
the power plant expansion (held in May 2010) videographed by Jindal
(not by the Chhattisgarh Pollution Control Board). The SP did not
register the case and advised Jindal to settle the matter in a civil
court. Jindal then filed a private complaint in the lower court and
obtained a court direction to the police to file an FIR under IPC
Secns 34, 35, 500 through 506. Most of these sections pertain to
defamation, and only one section—505 is non-bailable. ie, attracts
arrest. The SP sent the video for forensic analysis to Chandigarh and
it took the laboratory about 8 months to certify that the video was
not doctored. The Jindal representative, a minor functionary in the
company, who filed the court case, was not seen by three accused at
the public hearing.

Jindal had earlier had another case of blackmail and extortion
registered against Agarwal. According to Agarwal, this is based on a
surreptitious recording made by a Jindal functionary of a conversation
between him and Agarwal. A year after filing the FIR, the SP admitted
that they did not have any credible evidence to file a chargesheet.

In the past, Agarwal has highlighted other irregularities of Jindal.

The issues that emerge from this episode are:

· Article 51A(g) of Part IVA of the Indian Constitution
makes it a fundamental duty of every citizen to protect and improve
the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures. As good Indian
citizens the three accused have upheld the Indian Constitution and
requested Jindal to follow the law and not spoil the environment. For
doing this, Agarwal, Patel and their families have suffered for the
lack of a Whistleblowers protection act, which has been approved by
the Union Cabinet a year ago, but not presented in Parliament yet.

· Getting bail for the minor allegation of defamation has
become almost insurmountable in Chhattisgarh, and has incarcerated two
persons for nearly 4 weeks. The justice delivery system needs to
introspect and needs overhaul.

· Gare village farmers stand little chance against Jindal.
Their subsistence is based on harvesting solar energy online through
photosynthesis. Jindal uses fossil fuels, ie, 300 million year old
biomass converted into fossil fuels by ancient sunlight. Solar energy
has a low energy density compared to fossil fuels. It can deliver
limited energy per unit area. There is a grand global war being waged
by fossil fuel users against those dependent on photosynthesis. Laws
favour the former, without regard for the enormous injury the war
causes to nature and the injustice and attrition it causes to working
people.

· Chhattisgarh is a state where mineral wealth, including
coal, is below the ground; forests are above it, and adivasis in the
forest. To get the mineral wealth, forests and adivasis have to be
cleared. Those who stand in the way—Binayak Sen, Ramesh Agarwal,
Harihar Patel, Rajesh Tripathi and many others who say, “Please don’t
trample over the rights of adivasis, please conserve nature,” have to
be fixed. Such fixing has happened all over the world for decades.
We need to take a firm stand to protect those who are attempting to
conserve nature and protect working people.

In light of today’s High Court verdict we have written this quick
note to inform readers of the immediate facts of the case, and our
views on it. We will be writing longer report a little later.

Sagar Dhara, K Babu Rao

Hyderabad, 23 June 2011

Hindustan Times

Now lost in the forest

Chitrangada Choudhury

July 13, 2011

Incarcerated since May 28, hardware trader-turned-environmental activist Ramesh Agrawal has every reason to feel bitter. Instead, when I met the 52-year-old recently in the prisoner’s ward of the Government Hospital at Raigarh in Chhattisgarh, Agrawal was spirited, joking about the need to lock
up people like him.

Agrawal was arrested after Jindal Power Pvt Ltd, the biggest corporation in Raigarh district, charged him with defamation during an environmental clearance hearing. The case, two months after the actual hearing, suggested vendetta.

It came on the heels of the ministry of environment and forests (MoEF) cancelling the company’s terms of reference for a proposed power plant, and writing to the state government to act against the company for beginning work without clearances. Agrawal had originally alerted the MoEF about the illegalities.

Agrawal’s arrest on flimsy charges and the repeated denial of bail are jarring in the larger context of environmental violations in Raigarh and its adjoining districts, a coal-rich belt where dozens of power plants are in the offing.

Several villages here are home to forest-dwelling communities protected in theory by two laws: the Panchayats Extension to Scheduled Areas Act (Pesa), and the Forest Rights Act (Fra). But in recent years, residents have watched laws being disregarded to facilitate the industrialisation of mines, farmlands and rivers.

Agrawal studied regulations, extracted documents under the RTI, tested claims made on paper against ground realities, and regularly wrote to the authorities about the violations he saw. In effect, he was doing the work the statutory agencies are meant to. He never heard in return, but persisted.

“When Jairam Ramesh came as minister, I got a response for the first time,” he said. But action from the Centre resulted in greater hostility on the ground. In the months before his arrest, Agrawal was physically attacked, and his shop damaged (the police made no arrests on his complaints).

Even under arrest, he laid out files on his hospital bed to draft a letter to authorities about the misrepresentations in a proposed power plant’s environmental impact assessment (EIA).

Agrawal’s experiences reiterate the urgency for a ‘whistleblowers’ protection’ legislation. Equally, his incarceration raises larger questions about how violent and violative mining and industrialisation in our resource-rich Pesa and Fra areas have become, and are taken for granted.

In a 2010 lecture, Ramesh had asked, “Is the debate really ‘environment vs development’ or is it one of ‘adhering to rules, regulations and laws versus taking the rules, regulations and laws for granted’?” Nowhere is tackling this non-adherence as challenging as in these areas.

The reasons are three-fold. The first is the deeply partisan role the executive and the political class — the district administration, the Pollution Control Boards, the police, MLAs, etc — have taken on. This draws upon a deeper tradition of constitutional disregard and misgovernance in tribal areas.

Because mining has become so profitable, and it makes ample economic sense to trick tribal communities into giving up their land, a tenacious culture of corruption has built up in the past decade around public life in these areas. This makes it difficult to contest illegalities.

Second, if public hearings around a project’s environmental impact or land acquisition are to be genuine, they must be held in the spirit of a conversation among equals. But hearings have been reduced to a token opening of the door to the people in the process of decision-making.

Last December, a petition with over 80,000 endorsers from across Chhattisgarh made the regular demands of implementing Pesa and Fra, but it also asked for an end to fraudulent public hearings for environmental clearances and land acquisition.

In the villagers’ eyes, the sole purpose of such hearings is for the State to facilitate their dispossession. In Pesa areas, the hearings are particularly alienating because of cultural barriers. Project documents are never conveyed in local languages like Gondi, and are filled with scientific terms that villagers can’t read, let alone make sense of, or petition the State on.

But these communities are not ecologically illiterate.

Finally, most of these areas lie in states witnessing Maoist insurgency. The Centre’s strategy has been to cast thousands of troops into these villages on the one hand, and crores of rupees into bureaucrat-driven physical programmes on the other.

Neither of these two measures challenge what lies at the heart of the insurgency: an exclusionary ethic of policy-making, corruption in governance, and the resultant alienation of the people. The state’s default reaction has become to criminalise dissent.

A common thread underlies all these problems: mainstream India views its tribal communities as inferior citizens; their knowledge systems and worldview are held as irrelevant and dispensable in the national project of double-digit economic growth.

We need urgent correctives in our land acquisition and environmental protection regimes to ensure that our model of mining and industrialisation is no longer grounded in deceit and violence against these communities.

(Chitrangada Choudhury is a Fulbright-Nehru Fellow at Columbia University, US. The views expressed by the author are personal)

[ On the case against Rohit Prajapati ]

From: Rohit Prajapati

Date: Fri, July 8, 2011 at 9:04 PM

Subject: A defamation case, worth of Rs. 25 Crores have been filed against ‘The Times of India’ and Rohit Prajapati by Vapi Industries Association (VIA) and United Phosphorus Limited (UPL) and Avik Pharmaceutical Ltd.

A defamation case, worth of Rs. 25 Crores have been filed against ‘The Times of India’ and Rohit Prajapati by Vapi Industries Association (VIA) and United Phosphorus Limited (UPL) and Avik Pharmaceutical Ltd.

We are determined to fight these legal and other battles which we may have to face in the coming days and for that we need your full support – through legal aid, political campaign, and perhaps financial contribution if we appeal for it.

Dear All

Vapi Industries Association (VIA), United Phosphorus Limited (UPL), and Avik Pharmaceutical Ltd. have filed a defamation case, worth of Rs. 25 Crores against ‘The Times of India’ and Rohit Prajapati in the Vapi Court, District Valsad, Gujarat with reference to ‘News Item’ appeared in ‘The Times of India’ on 5th June 2010 Vapi: caught in a toxic chokehold, The Times of India, 4th June 2010.

The VIA states in their case “It is submitted that Shri Jairam had in fact visited Vapi, Gujarat. He had not only praised Vapi but said that other industrial estates should learn from Vapi. He declared Vapi pollution free. The same was reported in Times of India dated 8th July; 2010. […] The statements made in the said defamatory article is not only baseless but also malicious and made with malafide intentions. […] The statement made “VIA and CETP has failed to regulate its members”, is false. Recently officers of CPCB had visited CETP Vapi and have found that there is remarkable improvement in the COD and BOD in CETP plant. […] The Plaintiffs say and submit that the Defendant have made defamatory imputations and innuendos against VIA and others which in the eyes of right thinking people, particularly the industrial community and the general public of Vapi. […] By the letter dated 1st Dec, 2010 one Sajid Malik of Ventura Securities Ltd. inter-alia stated that there are serious allegations against the plaintiff in the edition dated 7th June, 2010 titled “Vapi Caught in Toxic Chokehold” the also said that such article can harm the industrial Development of Vapi. It has not only defamed VIA and industries of Vapi but has also reduced its image. […] By his email dated 21st April, 2011 Shri Ajit Premnath, Chief operating officer of U.P.L., Europe addressed to Nirmala Lobo of Uniphos company stated that he had offered 50 M.T. of cyper Methrin Technical to his customer in Europe and he lost the order as his competitors produced a copy of article published in Times of India about Vapi.”

Further they stated in their case “The Plaintiffs further submit that this Hon’ble Court be pleased to order and decree the Defendants to forthwith carry an article/clarification on the front page of the Times of India circulating in all over India clarifying that the Plaintiffs are not responsible for any pollution. […] For the purpose of court fees and jurisdiction the plaintiff values it’s claim in the suit at Rs. 25 crores and has paid the maximum court fee of Rs. 75,000/- accordingly. […] The Plaintiffs say and submit that in the facts and circumstances mentioned hereinabove it is absolutely necessary and in the interest of justice that the Defendants and/or the agents and servants be restrained by an order of perpetual injunction of this Hon’ble Court from publishing and/or issuing and/or inserting any articles and/or making libelous and/or defamatory statements and/or indulging in the defamatory campaign against the Plaintiffs of any of the plaintiff which may or which is likely to directly or indirectly injure the reputation and goodwill of the similar kind though disguised in another form […] That the defendants be jointly and/or severally ordered and decreed to pay to the plaintiff No. 1 a sum of Rs. 15 crores and to plaintiff No. 2 Rs. 8 crores and to plaintiff No. 3 Rs. 2 crores with interest thereon at the rate of eighteen percent per annum from the date of filing of the suit till payment and/or realization.”

It is an open secret that most of the ‘Common Effluent Treatment Plants’ of Gujarat are not able to meet the ‘State Pollution Control Board’ norms since long and all most all the news paper have reported about this not once but number of times in detail.

As many of you are aware, attempts to force industry to adhere to environmental norms, and attempts to create norms, have been viewed with deep hatred by industry and government alike.

The first hearing of the case is on 20th July 2011.

Probably this is the beginning of the “action” and many more such legal and “other action” may come in coming days from others also.

We are determined to fight these legal and other battles which we may have to face in the coming days and for that we need your full support – through legal aid, political campaign, and perhaps financial contribution if we appeal for it.

Rohit Prajapati Swati Desai

Paryavaran Suraksha Samiti