by Cheryl Adam
In November 2017, nine months after our visit to India, the Supreme Court appointed a Committee to enquire into the allegations that Adani had violated environmental norms including levelling sand dunes. Adani had proposed to divert 2400 hectares of forest land which had been considered, because of its mangroves, to be ecologically fragile. Economic progress, as usual won at the cost of the environment.
The Indian Express reported in March 2018117 that the Forest Advisory Committee which met in January 2018, had noted in its minutes that “the establishment of port based SEZ is necessary for development of the country.” Diversion of land is essential to Adani’s prosperity. Adani was permitted to divert 1552.81 of forest land (other than 24 hectares of reserved forests in Dhrab village). The land had some conditions – it was stipulated to remain as a green area and was prohibited from being used as a golf course, beach resort, park, a private aerodrome or residential dwelling but it was allowed to be used for the Adani Mundra SEZ.
Adani was also told to ensure Coastal Regulation Zone rules were followed and find land for compensatory afforestation at its own cost. It was a win for Adani. The extension of his SEZ at Mundra, at that time meant a significant extension of the company’s power base.
Imogen Zethoven asks whether we can enter an SEZ.
“It’s foreign territory,” is the answer.
“They can make their own laws? Shoot someone?” Zethoven persists.
“Yes armed security. But there has been no violence per se. But you never know …”
Jadeja’s village is Navinal; a small community of 3000 people in the centre of Adani territory. Navinal is one of 14 villages that lie within the Adani Port and SEZ. Jadeja’s village is more like a continued sprawl of a larger township. Apart from taking on Adani and winning, the 30-year-old village chief has also taken on the Tata power plant. In 2008, the IFC (International Finance Corporation), the private lending arm of the World Bank, lent US$450 million to build Tata’s power plant in Mundra.
Jadeja is a disarming ‘human missile’ in the fight against these industrial giants’ encroachment. He helped US-based environmental lawyers document the Tata plant’s impacts on his community, and won approval from his village council to sign the village on as a plaintiff in a lawsuit that accuses the World Bank Group of violating its commitment to ‘do no harm’ to people and the environment. By lending Tata money, Bharat Patel was one of the petitioners in the case. The suit, filed in April 2016 in the US District Court in Washington DC, claimed the development bank financed the project even though it knew pollution and habitat destruction caused by the plant would harm fisherfolk, farmers and others living nearby.
They argued the Indonesian coal used by Tata was high in sulphur and that Tata had not installed flue gas desulphurisers and that the IFC should not be above the law in its role in funding the ensuing disaster. In September 2016, however, the villagers and fisherfolk heard that the IFC had immunity from lawsuits in the US and the case was discharged. However, on 21 May 2018, the US Supreme Court announced it would hear the case for challenging the World Bank Group’s immunity.
Richard Herz, Senior Litigation Attorney at EarthRights International (ERI), the lawyer representing the fishermen who were disputing the rights of the World Bank to be immune, released a statement: “International organisations like the IFC are not above the law and must be held accountable when their projects harm communities. The notion of ‘absolute immunity’ is inconsistent with Supreme Court precedent, and it is contrary to the IFC’s own mission as an anti-poverty institution. We are glad the Supreme Court has agreed to hear this case and hope it will correct this error.”118
It is not the first time that the World Bank has been under scrutiny for acting against the interest of the environment in Kutch. In 1996, it gave the Gujarat Government loans for projects on the integrated coastal zone management and one of the loans of US$1.05 million was made available for the creation of a State Environmental Action Program (SEAP) for Gujarat. Nilanjana Biswas in an earlier quoted Report entitled ‘The Gulf of Kutch Marine National Park and Sanctuary: A Case Study’, commented that the Report “revealed a strong pro-market bias including the modernisation of harbours.”
It is a mark of determination that the villagers and fishing communities will not back down. Jadeja, like Bharat Patel, will not give up no matter how many times he might lose. He is not scared of taking on big opponents including Adani. We sit inside a single storey concrete building with cool tiles and green walls and a pink concrete railing on the verandah. We are accompanied by one of the Muslim fishermen in an Izar, a wide band of cloth wrapped around his waist like a sarong. Outside, a group of Indians shoot the breeze in the usual unhurried way of their people. We are not introduced but gather they are also fishermen.
Jadeja tells us, through our videographer, that in September 2014 he had been directed, as village chief, to grant 967.5 acres of grazing land from the village to the Navinal Gram Panchayat, similar to our local government of which Jadeja was head. Megha Bahree reports in Forbes Magazine that under Indian law, land meant for grazing cattle can be used for something else if there is excess land but the village chief has to give permission to take the land.119 Multiple cases have been filed by village chiefs in villages affected by the Adani expansion at the Gujarat High Court contesting the government’s actions going back to 2005 and earlier.
“On that land,” the Magazine article commented, “Adani has built his cash cow – the country’s largest private port by volume – as well as a 4620-megawatt coal-fired power plant. The victims of this are the villagers. Between 2005 and 2007 at least 1200 hectares of grazing land was taken away from villagers in the name of progress,” Bahree reported.
Jadeja is one of these village chiefs who strongly objected to giving up important grazing land for the village. He is a quiet shy man, dressed in a white shirt. A large black mobile phone sticks out of his shirt pocket. He has a youthful, round face with a moustache and sparse beard. He smiles hesitatingly; his eyes cast downwards as though he is bearing the weight of the community.
In April 2015, according to his lawyer’s petition presented to the Gujarat High Court, he was locked up in Surat jail 700 kms away from his young family (Jadeja explains he has two children, now aged four and six), after being charged with being a dangerous person under the Gujarat Prevention of Anti-Social Activities Act after his time spent documenting a case against Adani. Jadeja had been involved in village protests against the cutting down of mangroves and creating artificial sand dunes as well as the levelling of one of the creeks near the Navinal village according to his lawyer’s petition who stated that these actions, in part, led to the entire SEZ minus the Adani port being closed down between 10 January 2014 and 16 July 2014 until conditional environmental clearance was given to Adani to re-open the SEZ.
This action, Jadeja’s lawyer estimated, was worth “hundreds of crores.” His lawyer maintained that all three court actions petitioned by Jadeja had been decided in favour of the village and against Adani. In court, his lawyer described Adani’s actions, as “a classic case of corporate arrogance.” His lawyer noted in the petition that if anyone wanted to leave the village, they had to get permission from Adani as the village was part of the SEZ which is “deemed foreign territory.” He added: “Those who support Adani will get contracts and life with full money but with all environmental hazards. Those who oppose Adani have to suffer at the hands of political executives, police and bureaucracy which work for the Adani Port and SEZ Limited …”
Jadeja had, his lawyer petitioned, many times “been lured with offers and contracts for not opposing the activity of the Adani Port and SEZ” and to stop legal action against the company. “Many times the detained [Jadeja] was threatened with dire consequences if he did not toe the line as a part of carrot and stick policy. However the detained did not budge and therefore he is in detention now,” his lawyer stated.
He went further in the petition alleging: “It is at t
he insistence of Adani Group. It is a punishment for being involved in three litigations … It is only to teach a lesson that whosoever will fight for constitutional right, for right to life and dignity, for the legitimate right of the villagers and for sustainable development. The individual liberty is curtailed by the State … at the instance of the Corporate House [Adani] which is close to the power in the State of Gujarat.”
Jadeja had also objected to the use of the village grazing land by Adani and had refused to sign over the 967.5 acres, as there was only 17 acres available to be assigned. His lawyer said that he had accompanied Jadeja to meet with two District Magistrates from Kutch and Bhuj to protest about the discrepancy over the land and Jadeja had been told he would face “dire consequences” if he did not sign a petition for the larger amount of land. He was later, in the presence of his lawyer, threated with being charged as a dangerous person and that even if the court refused to detain him, Jadeja would remain in jail.
According to one Indian newspaper reporting on the court case, Jadeja was perceived as a “thorn” in Adani’s side and “an impediment to the company’s growth.”
Jadeja struggles with his English, but he manages to say three words succinctly: “Don’t trust Adani.”
We walk through the main street of the village: the Australian farmer Bruce Currie in his green shirt, Imogen Zethoven in her tennis cap and me with a grey scarf around my head against the dust that swirls through the streets. A herd of cows walk past. Jadeja used to grow cotton, millet and castor in some fields near the village until patches of white salt appeared in the fields and the soil became useless, a legacy of eradicating the mangroves.
He talks haltingly in English competing with tooting trucks and mooing cows.
“If Adani is staying in Australia, it will be the same situation as here. They will destroy any environment, water sources … any livelihood. Do not listen to the Government who says they won’t do this. If they come to Australia, they won’t listen to anything.”
As we part, I ask him one last question: “What advice do you have for Australia?”
“If you give them a little space, they will take more and more …” he says firmly. He has the weariness of a man who, although he has had some wins, knows that he has a long way to go.
Jadeja’s lawyer, Anand Yagnik, has an unassuming office up several flights of stairs overlooking a busy thoroughfare in Ahmedabad. Yagnik, who practices in the Gujarat High Court, is sitting behind a large wooden desk. He tells us that he has single-handedly “filed the maximum of matters against Adani.” Behind him is a massive calendar. He is dressed in the ubiquitous white shirt of Indian officialdom, clasping his hands in front of him. With a handlebar moustache, stern expression and glasses, he is a serious man with a deadpan humour laced with irony.
When I ask quickly whether I can record our conversation he replies dismissively: “I am always on the record.” Not waiting for questions, he proceeds to give us an impromptu lecture. The topic is on the way Indians do business.
“There are two types of lawyers,” he says, “ones who fight for ‘the cause’ and those who fight ‘for industry’.” A retainership from the industry is “a key source of money” for the legal fraternity. “With God’s grace,” he tells us, “I am one of only two advocates here who refuse to accept such a retainership.”
His warning is blunt and similar to Jadeja’s. Adani will continue with the same way of operating in Australia as the company had done in India. The key to the company’s success is relationship building, he says. They will establish good relations with both political parties: conservative and labour. But in India, he ponders, the path for Adani is easier than it might be in Australia.
“One must understand three things,” he said. “In India, liberalisation means to liberate industries from all laws and impose laws on the people – this is the meaning of a laissez faire economy … Second principle is that violation in India is far cheaper than compliance … therefore the message to industry is to keep violating. At the most you’ll have to pay a fine. Prosecution in India is almost impossible. Third one is that exploitation is a source of profit – whether you exploit resources, exploit politics, exploit the people. You have resolve to commit exploitation, otherwise there’s no source of profit.”
Yagnik talks in the typical Indian way in riddles drawing on Middle Eastern fairytales and portrays the Adani Group as the “Thief of Gujarat.”
“And in Australia?” I ask.
“Yes,” he answers swiftly. “Do not allow these people to do business in Australia.”
To continue good relations with the Indian Government, he says, Adani handpicks employees from the ranks of some of the highest retired public servants in the land: Finance Secretaries; Cabinet Secretaries and Defence Secretaries ensuring a continuing company link with Indian bureaucracy.
“It is not the parliament of India that has the power. It is the stock exchange and the relationship behind the curtain among those bureaucrats through whom the industrial houses operate … the Prime Minister of India, Mr Narendra Modi, won the 2014 election flying in the plane of Adani. He left Gujarat to become the PM after they won the election – in the plane of Adani. You can understand the kind of clout that he enjoys. And that is not an incident in isolation. This has been happening for some time …”
As to India’s concern about the environment, he says the law in India needs changing, citing three obsolete environmental laws which were framed as long ago as 1920 or 1925 with low penalties: a 200 rupee fine or three to four months in jail. “We were not paying attention to those laws and therefore we were not paying attention to the environment,” he said, adding that India is happy to accept the excuse that a developing country cannot be asked to maintain pollution standards because it is antithetic to development.
“Development deals with human beings. Growth deals with profit and losses. Even now the judges in India – who substantially belong to upper middle class and elite middle class – sincerely believe that the environment is a concept of developed countries. It is a conspiracy on the judges’ part to keep countries like India underdeveloped, and impose their expectations of having exploited the world for hundreds of years. This dogmatic theory runs deep in our blood … So your country is very different to my country.”
Adani, he warns, flourishes in this landscape and that is obvious by their environmental destruction in Mundra, which, he said, included building a wall of sand, after dredging for the port, which was 15–25 feet high running across an area of 40–47 kms. After reclaiming the land for the port, he said, the Mundra lighthouse ended up 3.7 kms inland. This reshaping of the coastline resulted in massive destruction of mangroves.
“You know the mangroves are a barrier between the sea and the land. They create a balance. They do not allow salinity to make further ingress. Mangroves are God’s gift …”
Zethoven asks about the state of the energy industry in India reminding him that the then Energy Minister, Goyal, had been steadfastly on the record as saying that fossil fuels will be phased out. This seems contradictory, she says, with India’s expansion in coal. Yagnik asserts that Modi’s relationship with power manufacturers is an important one and that Modi’s victory as Prime Minister was substantially because of his relationship with the power sector in India.
He then proceeds with a history lesson on the development of coal in India. Power manufacturing between 1950 and 1995, he says, was a monopoly of the state, which had been using coal-based thermal power plants since the 1960s. By 1991, the technology used in these power plants became obsolete and they had become a liability. A drastic change in the technology was recommended. However, between 1995 and 2015, the price of providing electricity had become so expensive that the government reached a crisis point: it had failed to provide cheap power.
In 2003, the Electricity Act became legislation, which, significantly, allowed private companies to enter the power game and to become involved in coal production with compa
nies such as Adani, Essar and Tata. From around 2008, these private companies began importing coal from places like Indonesia, Africa and Malaysia. At this time, the Indian states had entered into a non-negotiable agreement with the government called Power Purchase Agreements to be in place for 25 years, which would guarantee a fixed price for electricity.
Coal, after all, remains India’s major source of electricity and supplies three quarters of the country’s electricity use. So after private companies became involved in coal production, India gradually changed from a country with a power deficit to a power surplus and even began providing electricity to countries like Pakistan and Nepal. But there was an imbalance in the different Indian states, he said. Gujarat was in surplus of power (10,000 MW), compared to other states. However, in 2009/10 the price of coal across the world increased, resulting in an increased cost of producing electricity and led to many companies with thermal power plants defaulting on their loans because they had promised to provide electricity at a fixed price.