On June 25, 2021, the Madurai Bench of the Madras High Court issued a notice to the National Human Rights Commission (NHRC) directing it to forward to the Court its spot investigation report on the 2018 police firing on anti-Sterlite Industries protesters in Thoothukudi, after the NHRC had closed its inquiry into the case. The Court also made some stinging observations on the firing on May 22, 2018, in which 13 civilians were killed.
Responding to a public interest litigation (PIL) petition from Henri Tiphagne, executive director of People’s Watch, a Madurai-based non-governmental organisation, the bench of Chief Justice Sanjib Banerjee and Justice T.S. Sivagnanam said that it was “somewhat alarming that the State, through its police, fires at unarmed protesters and no one is booked some three years after the incident”.
It added: “It may not augur well for a civilised society governed by the constitutional principles that we have to merely throw money at the families of the victims and give closure to an incident of possible brutality and excessive police action. No conclusion need be drawn yet before the facts come to light, but it is necessary the facts come to light and be made public.”
The Chief Justice, who issued the order, said: “Some disturbing facts pertaining to an incident of police firing in Thoothukudi of Tamil Nadu on May 22, 2018, were brought to light by a public-spirited individual. The immediate challenge of the petitioner was to the perceived lack of appropriate action by the NHRC and the closure of the matter by such Commission by its order of October 25, 2018.”
Court orders
The Justices said that since “the matter was of some importance”, it could be taken up at the principal seat of the Madras High Court in Chennai on August 9, 2021. They instructed the NHRC to forward its report to the Court “in a sealed cover in the event the Commission feels such report to be delicate at the moment”.
The bench also directed the NHRC to file a counter to the petition filed by Henri Tiphagne, who had sought an interim direction from the Court to the NHRC to furnish its “undisclosed” investigation report under the provisions of the Protection of Human Rights Act, 1993, within a stipulated time.
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It also asked the State government to disclose the interim report of its commission of inquiry, headed by Justice (retd) Aruna Jagadeesan of the Madras High Court, in the counter-affidavit wherein the State’s considered stand should be clearly spelt out.
The bench said: “It is evident from the order of the NHRC of October 25, 2018, that such Commission took suo motu cognisance of the incident on the day following the incident upon observing that victims’ right to life had been grossly violated. The initial observations of the Commission referred to police having resorted to firing on unarmed protesters without following the standard operating procedure. The Commission called for reports from various authorities and, on May 29, 2018, the Commission sent its own team for spot investigation upon being directed by an order of the Delhi High Court following a writ petition.”
It added: “However, according to the present petitioner, the contents of the report do not find any mention in the order of October 25, 2018. The relevant order of October 25, 2018 refers to a report filed by a Principal Secretary to the State, dated September 6, 2018. Such report referred to a judicial commission, headed by a retired judge of this Court, being set up by the State government to inquire into ‘the cause and circumstances leading to the opening of fire’.”
According to the Court, the NHRC report mentioned the report submitted by the Tamil Nadu government’s Principal Secretary in which the commission of inquiry was asked to examine whether the force used was appropriate or warranted in the circumstances and whether there were any excesses on the part of the police officers. The report had also referred to the “handsome compensation” of Rs.20 lakh each for the families of the deceased persons and Rs.1.5 lakh each for those injured. The bench further quoted the NHRC order, which had said that the district administration had taken “adequate steps to restore normalcy in the district”.
The NHRC order said: “The report (of the Principal Secretary dated September 6, 2018) concluded that appropriate steps had been taken by the State government to bring a normal and peaceful situation in a short period of time.”
The NHRC had also considered that “adequate compensation had been paid to the victims and appropriate steps have been taken by the State….and the judicial commission was looking into the police excess, if any, and no further intervention in the matter is required”.
Timeline of protests
Henri Tiphagne, who was a member of the NHRC’s national core group of NGOs(now known as the Core group on HRDs) for two terms between 2001 and 2011, claimed in his affidavit that the people’s opposition to the Sterlite copper smelter had started as early as October 1994. In his affidavit he said: “Despite the pressure from the local communities, the industry continued its operations with complete disregard for the environment and the health of the people living around it.” According to him, there had been several complaints against the plant regarding violation of government regulations and harming the environment.
The National Environmental Research Institute (NEERI) and the Tamil Nadu Pollution Control Board (TNPCB) had found evidence that effluents from the Sterlite unit contaminated the groundwater, air, and soil and that the company had also violated the standards of operation. In a separate case, the Supreme Court had even fined Sterlite Rs.100 crore for environmental pollution, he said. The smelter was shut down on March 30, 2013, after residents complained of breathing problems caused by its emissions. However, two months later, the National Green Tribunal (NGT) gave a conditional go-ahead allowing the company to resume production. After that, protests against the company by the local communities gained momentum. All those protests were peaceful and involved all sections of people who demanded a clean and toxin-free environment to live in.
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In 2018, the protesters wanted to meet the then District Collector to submit a memorandum demanding the plant’s permanent closure But they were not given the opportunity to do so. Hence, they decided to mark the 100th day of their sustained protest by staging a march to the Collectorate on May 22 that year with the same demand.
On May 16, 2018, Sterlite Industries had already moved the Madurai Bench of the Madras High Court seeking imposition of Section 144 in “the area to the radius up to 1 kilometre from the periphery around the factory premises, residential quarter premises and warehouse” and marking that area as a protest-free or no-protest zone. On May 18 the High Court gave a directive to the district authorities to pass appropriate orders. On May 20, 2018, the district administration initiated peace talks with a section of the protesters. The meeting was chaired by the Superintendent of Police while the District Collector, who was also the District Magistrate responsible for maintaining law and order, was conspicuous by his absence. The then district administration, which was well aware of the planned rally to the Collectorate on May 22, its route, and its size, failed in all aspects to prevent it and the subsequent tense situation.
Besides, the people who took part in the protest rally were unaware of the declaration of Section 144 owing to a lack of communication, and that led to a police crackdown and loss of lives and injuries to many.
NHRC action
On May 23, 2018, the NHRC took suo motu cognisance of the incident and registered a complaint. Henri Tiphagne said: “Despite the seriousness of the incident in which 11 people were killed in police firing on the first day, another one the next day and one more after a few months in hospital, the NHRC merely issued notices to officials concerned and sought reports from the government of Tamil Nadu.”
A. Rajarajan, an advocate and vice president of the National Union of Backward Classes, moved the Delhi High Court requesting that the NHRC send its team to investigate the incident. The High Court ordered the NHRC to pass suitable orders to conduct an independent investigation under Section 14 of the Protection of Human Rights Act, 1993. Subsequently, the NHRC deputed a team to probe the firing and the team submitted its report to the commission after two weeks.
But Henri Tiphagne claimed that the NHRC had turned a blind eye to the incidents and the perpetrators responsible for the large-scale human rights violations. He said: “The NHRC’s unwillingness to publish its report raises questions about the findings of the investigation team and its will to act as the protector of human rights.”
He told the Court that on December 23, 2018, he had requested the NHRC to reopen the case as its grounds for closing the case were ill-advised. The NHRC has stated in its order dated October 25, 2018, that it had closed the case on the grounds that compensation was paid to the victims of the police firing.
It must be mentioned here that the Madras High Court, in K. Kathiresan vs State of Tamil Nadu & Ors, on August 14, 2018, directed that all cases regarding the police firing on and violence against anti-Sterlite protesters be transferred to the Central Bureau of Investigation (CBI). But nearly three years later, the CBI had not made a single arrest or named a single person or district authority responsible for the excessive use of police force that resulted in the loss of lives. Hence, Henri Tiphagne requested the Court to issue an interim direction directing the NHRC to furnish its investigation report.
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Speaking to Frontline , Henri Tiphagne said that even after three years, no one involved in the brutal police firing on the public, from the State Police or the district administration, was even questioned.
The Justice Aruna Jagadeesan Commission of Inquiry too has not summoned any police or district administration personnel involved in the police firing so far. The previous All India Anna Dravida Munnetra Kazhagam (AIADMK) government treated it as a mere law and order issue and confined itself to taking perfunctory action such as giving compensation to victims.
The Rs.1,200-crore Sterlite Industries, part of the Vedanta Group, was invited to set up the smelter in Tamil Nadu in 1994 by the then Chief Minister J. Jayalalithaa, and it began operations in 1996. The plant’s operation involved various production processes that generated solid and liquid wastes with traces of heavy metals.
The plant had remained closed since 2018 and reopened only in April this year for producing medical oxygen owing to a shortage amid the COVID-19 crisis.
