By Dr Gopal Krishna*
Experiences from Gujarat-based National Institute of Occupational Health (NIOH) and New Delhi-based National Human Rights Commission (NHRC) bring forth violation of ethics by these two institutions in the matter of research on white chrysotile asbestos by the former and the use of the outcome of this research by the latter. Ignoring scientific and medical evidence of public health hazard and its own order about the harmful effect of asbestos, NHRC refrained from prohibiting use of carcinogenic mineral fibers of white chrysotile asbestos using an irrelevant and an admittedly questionable study by NIOH. NHRC committed a grave error by merely reproducing the submission of one Assistant Industrial Advisor, Ministry of Chemicals & Fertilizers, Department of Chemicals and Petrochemicals as part of its “Directions” (NHRC, 2016).
In doing so, NHRC ignored its own order (NHRC, 1998). In this case NHRC’s direction reads: “Replace the asbestos sheets roofing with roofing made up of some other material that would not be harmful to inmates.” It is evident from it that the NHRC considered asbestos sheets as harmful but it allowed itself to be misled by NIOH’s study. White chrysotile asbestos fibers used for making asbestos based products like asbestos cement roofs cause preventable but incurable diseases and deaths. Asbestos is a carcinogenic mineral fiber banned in some 60 countries.
Ignoring glaring and indisputable scientific, medical and judicial findings, Mr. Justice H.L. Dattu headed NHRC has issued the following direction:
“Pursuant to the directions of the Commission, Dr. Rohit Misra, Assistant Industrial Advisor, Ministry of Chemicals & Fertilizers, Deptt. of Chemicals and Petrochemicals, Govt. of India vide letter dated 4th July, 2016 has informed the Commission that in order to take an appropriate and scientific stand in the International Forum on the issue related to health hazards posed by Chrysotile variety of Asbestos, Department of Chemicals and Petrochemicals had entrusted National Institute of Occupational Health (NIOH) to carry out a study on Health Hazards/Environmental Hazards resulting from the use of Chrysotile variety of Asbestos in the country. Later, with the approval of MoS (Ind. Charge) Chemicals & Fertilizers, it was decided to set up an Inter-Ministerial Committee for considering the issue of continuance or otherwise of the use of Chrysotile variety of asbestos in India, taking into account of NIOH report and other related issues. On 27.8.2014, a meeting was held under the Chairmanship of Minister (Chemicals & Fertilizer) to consider the NIOH report. It was decided in the meeting that the NIOH report does not indicate any significant health/environment hazards resulting from the use of Chrysotile asbestos under proper conditions, coupled with the fact that asbestos products are quite cost effective for use by the masses, India may not support the inclusion of Chrysotile in Annexure-III at the COP Meeting in 2015. In the light of the above report, no further action by the Commission is called for. The case is closed.”
The Commission concluded on August 8, 2016.
It is quite bizarre that views of Secretary, Medical Education & Research & Assistant Labour Commissioner, Chandigarh Administration and Joint Secretary, Uttarakhand Government have been disregarded and NHRC allowed itself to be persuaded by views of Assistant Industrial Advisor, Ministry of Chemicals & Fertilizers. It is the same ministry which is dealing with public health disaster caused due to industrial disaster of Bhopal. This ministry’s callousness towards public health concerns due to hazardous chemicals and pesticides is well known. It does not even have the inventory all the chemicals used in the country and a register of its ill effects on human health and environment.
It is indeed quite strange that NHRC ignored Union Ministry of Labour’s concept paper that declares, “The Government of India is considering the ban on use of chrysotile asbestos in India to protect the workers and the general population against primary and secondary exposure to Chrysotile form of Asbestos. The Concept paper of the Central Government notes, “Asbestosis is yet another occupational disease of the Lungs which is on an increase under similar circumstances warranting concerted efforts of all stake holders to evolve strategies to curb this menace” (MOLE, 2011).
As to NIOH study, while one disagrees with the findings of the conflict of interest ridden study conducted by the National Institute of Occupational Health, (NIOH), it is evident that even this study does not state that chrysotile asbestos is not a hazardous chemical. Had NIOH study concluded that Chrysotile Asbestos is not a hazardous chemical it may have become relevant. But even then it would have been legally unsustainable because under Indian laws chrysotile asbestos is a hazardous chemical.
NHRC ignored the fact that Union Minister of State for Environment and Forests had informed the Rajya Sabha in a written reply that the study of the health status of the workers and the residents in the vicinity of the asbestos industry by NIOH, Ahmedabad was co-sponsored by the Asbestos Cement Products Manufactures Association (ACPMA). Out of a total of Rs. 59.66 lacs allocated for the study by Ministry of Chemicals and Fertilizers, the Asbestos Cement Products Manufactures Association has contributed Rs. 16 lacs (PIB, 2008).
NHRC ignored that fact that every Environment Impact Assessment (EIA) Report of every asbestos based factory itself admits that asbestos is a hazardous substance. The EIA report is prepared under EIA Notification notified under Environment Protection Act, 1986. A reply sent to the author by the Ministry of Environment & Forests shared a 7 page note of Department of Chemicals and Petrochemicals (DCPC)’ dated June 18, 2013 on the issue of Government of Indias position on hazardous substance chrysotile asbestos at the Sixth Conference of Parties of (CoP-6) of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade held during April 28-May 10, 2013 in Switzerland. As to NIOH’s role, a perusal of this 7 page long note of the Department of Chemicals and Petrochemicals (DCPC), Union Ministry of Chemicals and Fertilizers on the subject of Chrysotile Asbestos titled “Department of Chemicals and Petrochemicals View on the use of Chrysotile Asbestos” in the country along with MoEF ‘s letter reveals that the contention of MoEF based DCPC’s note stating that “On the basis of the said note, the listing of Chrysotile Asbestos under Annex -A of Rotterdam Convention at CoP-6 during April 28th -May 10th 2013 at Geneva could not be supported” was/is misplaced. The note of the “line department”, i.e. Department of Chemicals and Petrochemicals (DCPC), Union Ministry of Chemicals and Fertilizers on the subject chrysotile asbestos illustrates that it has failed to understand the purpose of the Rotterdam Convention and ignorance about the objective of the Convention.
NHRC ignored the objective of Article 1 of the Rotterdam Convention which reads: “The objective of this Convention is to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties.”
NHRC has been kept in dark about the concluding sentence of the DCPC’s note which reads: “In view of the above, India may take a stand in the next CoP meeting of Rotterdam Convention for not inclusion of chrysotile asbestos in Annexure-III of Convention.” NHRC ignored the fact that the note is irrelevant from the point of view of the objective of the Convention for which it was prepared. It ignored that the NIOH study which has been mentioned was admittedly tainted because of proven conflict of interest and thus its inference was questionable. This was admitted in the Parliament by the Labour Minister and the Environment Minister. The Press Information Bureau (PIB) release with regard to the same is available on its website which reveals that the conclusion of the DCPC’s note titled “Department of Chemicals and Petrochemicals’ View on the use of Chrysotile Asbestos in the country” is based on manifestly flawed reasoning.
NHRC ignored the fact that at the first meeting, the Chemical Review Committee (CRC) under the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, the committee agreed to recommend to the Conference of the Parties that Chrysotile Asbestos should be listed in Annex III of the Rotterdam Convention. The CRC is a group of government designated experts established in line with Article 18 of the Convention that evaluates candidate chemicals for possible inclusion in the Convention. Chrysotile (serpentine forms of asbestos) is included in the PIC procedure as an industrial chemical.
NHRC has failed to appreciate that what is poisonous and hazardous within India cannot be deemed non-poisonous and non-hazardous under the unscientific influence of DCPC and Asbestos Cement Products Manufacturers Association (ACPMA) at the conference of Parties of Rotterdam Convention. DCPC’s untenable position is ridiculous.
NHRC ignored the fact that the Union Ministry of Finance has announcement that asbestos related diseases will be covered under Rashtriya Swasthya Bima Yojana (National Health Insurance Scheme) is an acknowledgement of the fact that asbestos is a health hazard although this is hardly sufficient in the absence of environmental and occupational infrastructure.
NHRC failed to get the report of the 13 member- Advisory Committee of Union Ministry of Labour which has been set up to implement Supreme Court’s order. This Advisory Committee is supposed to incorporate the ILO resolution of 2006 in the matter of asbestos as per Supreme Court’s order of 1995 and 2011 under the Chairmanship of Joint Secretary, Union Ministry of Labour but as of November 20, 2016, the Advisory Committee has not submitted its report despite the fact that more than 4 years have passed since it was entrusted the task on January 23, 2012. The ministry is supposed to incorporate specific directions of the Court with regard to fresh ILO Resolution of June 14, 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos besides WHO’s resolution of 2005 seeking elimination of future use of asbestos.
NHRC ignored the approval and the recommendations of the Chemical Review Committee under Rotterdam Convention that has endorsed listing of chrysotile asbestos in the PIC list of hazardous substances.
NHRC ignored the fact that Government of India’s Environmental Impact Assessment, Guidance Manual for Asbestos Based Industries. The Manual refers to WHO’s “Environmental Health Criteria 203; Chrysotile Asbestos (http://www.who.int/en/)” but fails to incorporate the criteria. Although requirements underlined in the Manual has neither been complied with in the past nor are they being adhered to at the present and it is quite unlikely that it will be done in future, NHRC has failed to apply it mind to such grave situation.
NHRC ignored that the official Inventory of Hazardous Chemicals Import in India lists “Asbestos” at serial no. 26 as one of the 180 hazardous chemicals in international trade which is imported in India. This inventory has been prepared by Central Pollution Control Board (CPCB), under Union Ministry of Environment & Forests, Govt. of India.”
NHRC ignored that Schedule I of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 under the Environment (Protection) Act, 1986 provides the List of Processes Generating Hazardous Wastes. The list has 36 processes generating hazardous wastes. It may be noted that Production of Asbestos or Asbestos containing materials which generates Asbestos-containing residues, Discarded Asbestos, Dust/particulates from exhaust gas treatment is at the serial no. 15 in the list.
NHRC ignored the Schedule VI of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 under the Environment (Protection) Act, 1986 which provides List of Hazardous Wastes Prohibited for Import and Export. The list had 30 such hazardous wastes which are also covered under UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal. The list mentions Waste Asbestos (Dust and Fibers) at serial no. 16 with its Basel No. A2050.
NHRC ignored that the Factories Act, 1948, which provides the list of 29 industries involving hazardous processes is given under Section 2 (cb), Schedule First, asbestos is mentioned at serial no. 24. The Act defines “hazardous process” as “any process or activity in relation to an industry specified in the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereof would–(i) cause material impairment to the health of the persons engaged in or connected therewith, or (ii) result in the pollution of the general environment” . This leaves no doubt that asbestos is a hazardous substance.
NHRC ignored the findings of Supreme Court constituted High Powered Committee (HPC) headed by Prof. MGK. Menon (by order dated October 13, 1997) for examination of all matters relating to hazardous wastes. The HPC had dealt with issues of asbestos based industries and their wastes.
NHRC ignored the findings of Supreme Court constituted Technical Experts Committee on Hazardous Wastes relating to Ship-breaking in 2006-7 that had asked National Institute of Occupational Health, (NIOH) to undertake an epidemiological study was planned to find out the magnitude of asbestos related health problems and other disorders among ship breaking workers. The study observed that 15 (16 %) of 94 workers occupationally exposed to asbestos showed linear shadows on chest X-rays, and 26 workers (39%) showed restrictive impairment. But despite Supreme Court’s order dated January 27, 1995 fixing Rs 1 lakh for victims of asbestos related diseases these workers have not been compensated.
NHRC ignored the report of the Working Group of a Planning Commission on Occupational Safety and Health at the workplace which noted that “The workers are also exposed to a host of hazardous substances, which have a potential to cause serious occupational diseases such as asbestosis…” It has recorded that various studies conducted by the Central Labour Institute have revealed substantial prevalence of occupational health disorders amongst the workers such as Asbestosis. The prevalence rate for Asbestosis was reported to be 7.25%” (Planning Commission, 2001).
In its report dated 1 August, 2011, NHRC provided details of its interventions including Banning use of white asbestos wherein it claimed “The Commission took cognizance of a complaint that about fifty thousand people die every year in the country from asbestos-related cancer. The complainant requested the Commission’s intervention to ban chrysotile asbestos (white asbestos), which is used on walls and roofs claiming that it caused various incurable diseases, and that the Government illogically had technically banned the mining of asbestos but allowed its import from countries which do not let it be used domestically. The Commission issued notices to the Secretaries of the Union Ministries of Chemical & Fertilizers, Environment & Forest, Health & Family Welfare, Industry & Commerce, and Labour and to the Chief Secretaries of all States and Union Territories, calling for reports on the issues raised in the complaint” (NHRC, 2011).
NHRC failed to appreciate that Russia, the world’s biggest asbestos producer remains India’s biggest supplier of raw asbestos given the fact that India has banned asbestos mining because of its deleterious impact on health. India remains the world’s biggest asbestos importer. India is consuming 15 % of the total world asbestos production, as per US Geological Survey estimates.
NHRC ignored its own statement dated June 5, 2012, wherein it wrote, “The Commission had asked them (the central and state authorities) to share with it the information on the action taken by them with regard to the Supreme Court judgment dated the January 21, 2011 in Writ Petition (Civil) No. 260 of 2004 on exposure to asbestos.” It further wrote, “The Commission, while seeking their responses, had particularly drawn their attention the Supreme Court directions with regard to Para 16 of the Writ Petition, which are as follows: a) Ministry of Labour in the Union of India and Department of Industries and Labour in all the State Government shall ensure that the directions contained in the judgment of this Court in the case of Consumer Education and Research Centre (supra) are strictly adhered to; b) In terms of the above judgment of this Court as well as reasons stated in this judgment, we hereby direct the Union of India and the States to review safeguards in relation to primary as well as secondary exposure to asbestos keeping in mind the information supplied by the respective States in furtherance to the earlier judgment as well as fresh resolution passed by the ILO”(NHRC, 2012). NHRC’s final order of August 2016 ignored its own statement.
NHRC ignored the decision of Kerala Human Rights Commission dated January 31, 2009 with the following recommendations: a) The State Government will replace asbestos roofs of all school buildings under its control with country tiles in a phased manner. b) The Government will take steps to see that the schools run under the private management also replace the asbestos roofs with country tiles by fixing a time frame. c) The Government should see that in future no new school is allowed to commence its functions with asbestos roofs. It is noteworthy that “Asbestos poisoning” was highlighted in a meeting of the Core Group of NGOs that discussed Right to Environment which was held in the Commission on September 12, 2007, under the chairmanship of Justice Y. Bhaskar Rao, Member NHRC. The order of NHRC in August 2016 ignored these deliberations.
NHRC ignored the Supreme Court’s order dated January 27, 1995 and recommendation of World Health Organisation (WHO)’s outline for the Development of National Programmes for elimination of asbestos related diseases’ make a case for stopping all asbestos based products to prevent the imminent public health crisis as a consequence of which more than 60 countries have banned all forms of asbestos (Supreme Court, 1995). This order has been reiterated in 2011 by the Court.
NHRC ignored, Vision Statement on Environment and Human Health (Para 4.3.1) of Union Ministry of Environment, Forests & Climate Change (MoEFCC) that reads: “Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out” (MoEFCC).
NHRC ignored the reply to NHRC dated May 29, 2012, Joint Secretary, Government of Uttarakhand in Case No.2951/30/0/2011, has submitted to the NHRC a document Medline Plus Trusted Health Information for You, U.S. National Library of Medicine and the prescription of National Institutes of Health (NIH) highlighting the Treatment stating: “There is no cure. Stopping exposure to asbestos is essential.”
NHRC ignored the submission of Secretary, Medical Education & Research, Chandigarh Administration which has categorically informed National Human Rights Commission (NHRC) that “a. White Asbestos (Chrysotile Asbestos) is implicated in so many studies with the following diseases:-Mesothelioma (Cancer of Pleura), Lung Cancer, Peritoneal Cancer, Asbestosis, And also consider as cause of following cancers:- Ovarian Cancer, Laryngeal Cancer, Other Cancer b. Diseases are produced in the person involved in Asbestos Industry.” It states that “No. of cancer deaths due to asbestos requires further large scale study from India”. It informed NHRC that “It is definitely harmful material, causing cancer and other related diseases.” It quoted from Pulmonary Medicine journal saying, “Asbestos is a set of six naturally occurring silicate minerals exploited commercially for their desirable physical properties. However, it has been proved beyond doubt that Asbestos is hazardous to humans. White asbestos has been found to have causal relationship with various diseases like pulmonary asbestosis, lung cancer and mesothelioma leading to deaths of thousands of people every year.” Considering the risk, its use has been banned more than 50 countries including Japan, European Union and Australia and efforts are being made for its prohibition in many countries.
The reply of Chandigarh Administration concluded saying, “Hence, use of white asbestos should be completely banned in India also and the same may be replaced by some safe alternative material.” Chandigarh Administration has realized the public health consequences of exposure to fibers of asbestos. In a separate reply to NHRC, Assistant Labour Commissioner, Union Territory, Chandigarh has referred to para 16 of the judgment of Supreme Court dated January 21, 2011 passed in Writ Petition (Civil) No.260 of 2004 wherein directions of January 27, 1995 in the Writ Petition (Civil) No. 206 of 1986 is required to be strictly adhered to. It further states, “In terms of the above judgement of this Court as well as reasons stated in this judgement, we hereby direct the Union of India and States to review safeguards in relation to primary as well as secondary exposure to asbestos keeping in mind the information supplied by the respective States in furtherance to the earlier judgement as well as fresh resolution passed by the ILO. Upon such review, further directions, consistent with law, shall be issued within a period of six months from the date of passing of this order.” As to ‘fresh resolution passed by the ILO’, it is noteworthy that “A Resolution concerning asbestos was adopted by the International Labour Conference at its 95th Session in 2006. Noting that all forms of asbestos, including chrysotile, are classified as human carcinogens by the International Agency for Research on Cancer (IARC), and expressing its concern that workers continue to face serious risks from asbestos exposure, particularly in asbestos removal, demolition, building maintenance, ship breaking and waste handling activities, it calls for: – the elimination of the future use of asbestos and the identification and proper management of asbestos currently in place as the most effective means to protect workers from asbestos exposure and to prevent future asbestos-related diseases and deaths.” NHRC ignored this resolution as well. It also ignored the fact that the United Nations Committee of Experts on the Transportation of Dangerous Goods classifies Chrysotile Asbestos in Hazard Class and Packing Group.
This backdrop makes it pertinent to note that Justice Dattu began serving as the chairperson of the NHRC in February 2016. Prior to him Justice K G Balakrishnan and Justice Cyriac Joseph headed the Commission that looked into the issue of banning use of White Asbestos. It appears that concerned institutions got intimidated by the influence of asbestos industry through its non-profit NGO, ACPMA. The “Direction” of NHRC is a setback to public health amidst epidemic of asbestos related diseases.
*Editor, ToxicsWatch Journal, Contact: firstname.lastname@example.org.
These are excerpts from the paper by Dr Gopal Krishna “Research on Chrysotile Asbestos: Failure of Ethics by National Institute of Occupational Health and National Human Rights Commission”, presented at the 14th World Congress of Bioethics, Bengaluru, on December 6, 2018.
Download full paper HERE