By Nityanand Jayaraman
Evidence released by Anti-Sterlite People’s Movement spokesperson Fatima in Thoothukudi today suggests that persons close to Vedanta may have had access to a “DRAFT” version of the NGT order well before the actual order was made public. Fatima has said she would file a police complaint seeking a probe into the matter, and has urged the Government to do the same.
“This is a very serious breach of judicial process. If proven, Sterlite’s access to the order even before it is pronounced indicates how far the company has gone to protect itself,” said Justice D. Hariparanthaman, a retired judge of the Madras High Court
The evidence emerged after a “draft” version of a Microsoft Word file containing the order circulated by media people during the early afternoon of 15.12.2018 was analysed for information regarding its origins. The file, reportedly circulated by Sterlite’s private PR agency, was titled “Final Order of VEDANTA DRAFT ORDER-15.12.2018.docx.” A closer look at its analytics revealed that it was created by an author named “NGT PA” at 07.39.00 that day and modified instantly by author named Aabhas Pandya. (See Screenshot.jpg)
The Delhi police must verify if the Aabhas Pandya mentioned in the analytics of the .docx file is the same as the head of Vedanta’s PR agency.
A PDF version of the order began doing the rounds in social media at around 2 p.m. However, this file too was titled “Final Order of VEDANTA DRAFT ORDER-15.12.2018.pdf.” This file was also created by author named “NGT PA” but at 08.01.17+00.00 which is Coordinated Universal Time for 1.31 p.m. Indian time. That is around the time that the order was uploaded on the website.
RESTING IN CONFIDENCE
Vedanta was clearly confident of a favourable order despite the findings of illegalities by the Agarwal Committee. Within hours of the NGT order, a ship carrying 25,000 tonnes of copper concentrate for Sterlite Copper arrived in VOC Port in Thoothukudi from Peru, triggering speculation that the long arms of Vedanta had breached the judicial process. Not only that, the final order is starkly different from the report of the Committee. Committee’s findings have been misrepresented, and recommendations substantially changed in a manner than helps Vedanta.
Para 52 of the Order reads: “With regard to (ii), copper slag is not found to be hazardous nor has been found to be obstructing the flow even on visit of the site by the Committee. Physical barrier could be directed to be constructed for the entire area.”
This is in direct contrast to the findings of the Committee, which noted that the river was dry at the time of its visit.
Fact aside that this requirement has been in violation since 1995 when it was first imposed as a license condition, the NGT has done away with the recommendation on this front by stating incorrectly that the matter is covered by the 2013 Supreme Court judgement.
NGT’s treatment of two other recommendations of the Committee are noteworthy. Recommendations “s” and “t” of the Committee state that the chimney stack should either be increased to the legally mandated height or emissions made compliant by bringing production down to match stack height. Recommendation “u” directs the company to transport its copper ore concentrate in closed conveyance or a pipe conveyor.
While implementation of these recommendations would have offered some degree of protection to citizens, the NGT refuses to engage with them and instead refers the matter to a joint committee of TNPCB and CPCB which will once again take a view on the matter after giving “due hearing to the appellant.” Once again, the principles of natural justice are applied to Vedanta without a reciprocal offer to the citizens of Thoothukudi
OPEN COURT CONCEPT
On 10.12.2018, the NGT announced that its order would be uploaded on its website on or before 17.12.2018. That in itself was irregular. Section 23(1) and (2) of NGT Rules require that “Every order of the Tribunal shall be signed and dated by the Members constituting the sitting of the Tribunal, which pronounced the order” and that “The order shall be pronounced in open court.” http://www.greentribunal.gov.
The matter was not listed for hearing on 15.12.2018 – the date of uploading of the order. Neither has it been listed in the Causelist for hearing on 17.12.2018 suggesting that the order will not be read in open court
This lapse is not merely technical in nature. In uploading the order on Saturday during the vacation of the Supreme Court without the benefit of an open court pronouncement, parties and interveners have effectively lost their right to request a stay on the operationalising of the order until they have an opportunity to approach the higher court.
The NGT’s handling of this highly sensitive case has come under severe criticism with civil society interveners alleging bias, favoured treatment to Vedanta and violation of principles of natural justice. The Tribunal headed by Justice A.K. Goel refused to grant interveners any status to present arguments and denied them access to the report of the Committee appointed by it. An application by intervener Fatima seeking reconstitution of the Committee with a retired judge of impeccable integrity to replace Justice (Retd) Tarun Agarwal who was named as a beneficiary in the Ghaziabad PF scam was ignored by the Tribunal. The order disposes all applications of the interveners without hearing
>However, the allegations of bias now pale in comparison with the new revelations that suggest a breach in the confidentiality of a judicial order, and fuel suspicions regarding the integrity of due process.
At the very least, Vedanta and Adfactors have some explaining to do. At worst, the very order of the NGT is thrown in question.