Imprisonment of two Chhattisgarh activists over opposition to Jindal Power's Tamnar II Project

On May 28, 2011, indigenous rights and environmental activists Ramesh Agrawal and Dr Harihar Patel were arrested over their opposition to Jindal Power's proposed 2,400 megawatt (MW) coal-fired Tamnar II Project located in Tamnar, Raigarh, Chhattisgarh, India. Agrawal and Patel have been imprisoned ever since. Their case has been taken up by Amnesty International, which believes their arrest "is intended to stop their peaceful campaign activities." Ramesh Agrawal works for the environmental rights organization Jan Chetna and Dr Harihar Patel practices indigenous medicine.

Background
Agrawal, 55, runs a small internet cafe in Raigarh and uses the proceeds to fund the work of Jan Chatna, a group which educates local farmers on their rights and investigates potential violations of environmental laws. Argawal, in particular, has had various complaints against Jindal Power in recent years. "My father has filed complaints against Jindal’s coal washeries, power plants, cement plants and expansion projects in Raigarh," his son Dhananjay Agrawal told The Hindu.

Jindal's Tamnar I Project approved without public hearing
Several years before his most recent arrest, Agrawal had sought details under the Right to Information Act regarding how Jindal Power gained approval for the Tamnar I Project without holding a public hearing. According to Agrawal, his effort to obtain documents relating to Jindal Power's first power station revealed that the Ministry of Environment & Forests received an application from Jindal on February 27, 1996. At that time, prior to changes introduced in 1997, a public hearing on major projects was mandatory rather than optional. However, no public hearing was held for the power station. "This is matter of utter importance and investigation how the Ministry bypassed a mandatory process of public hearing and accorded clearance to first phase of 1000 MW power plant," Agrawal wrote at the time.

Challenge against the expansion of Jindal's Gare coal mine
A background note on the arrest of the activists by Agrawal's lawyer, Ritwick Dutta, states that Dr. Harihar Patel, who is a resident of Gare village, "has been leading the Adivasi Kisan Mazdoor Ekta Sangathan which has been fighting against takeover of people's land due to industrial and mining activities in and around his village." In particular, it points out that Patel had "filed an application against environment clearance granted for setting up of the Gare IV coal mining project (by M/s JSPL) before the National Environment Appellate Authority (NEAA)."

Jindal's Tamnar II Project approved, then canceled, then ...
In June 2006 Jindal Power received environmental clearance from the Ministry of Environment & Forests for the construction of the 1000 megawatt Tamnar I Project, the company's first power station built solely to sell power into the grid. Shortly after the start of construction, Jindal Power announced that it wanted to add another 1320 MW of capacity on land adjoining the first power station. At the time, it was estimated that the plant expansion would require an additional 750 hectares of land. In July 2007 the Ministry of Environment & Forests informed the company of the terms of reference for the Environmental Impact Assessment. However, just over a year later, Jindal changed tack again, this time stating that it wanted an additional 1600 megawatts to be built. Once more the Ministry of Environment & Forests issued new terms of reference for the environmental assessment. A few months later, in early 2009, Jindal upped the capacity of the proposed plant once again, this time to 2400 megawatts. At the end of March 2009 the Ministry of Environment & Forests again wrote to Jindal setting out the terms of reference for an Environmental Impact Assessment on the project. By now, however, the additional land needed for the project had grown to 1041 hectares.

By year's end Jindal was acknowledging that it had acquired far less of the land than needed for the project. In its December 2009 prospectus Jindal Power stated that it estimated that the 1762 acres needed for the project included the "power plant, ash dyke, related green belt areas and housing colony, but excludes land required for setting-up coal transportation systems, railway sidings, right of use and right of way for water pipelines, transmission lines etc." As of November 2009 the company had acquired only 330.36 acres of land.

Under Indian law, companies that are seeking to acquire land for a project must hold a public hearing to inform affected landowners and the local community. A complicating factor is that different procedures apply for the assessment of air and water pollution from new projects than apply to the expansion of an existing project. Agrawal believed the Tamnar II project could be treated as a new project while Jindal wanted it treated as the expansion of an existing project.

Jindal told to stop work, twice
In late February 2010 the Chhattisgarh Environment Conservation Board (CECB) inspected the construction on the new power station site and directed the company to stop the work. Subsequently Agrawal wrote a series of letters to the Indian Minister of environment, Jairam Ramesh, pointing out that Jindal had started construction without environmental clearances.

In early April the Chhattisgarh state government ordered that a public hearing into the proposed expansion be held.

The May 8th meeting
On May 8 both Ramesh Agrawal and Dr Harihar Patel attended and spoke at the hearing. What happened at that meeting is central to Jandal Power's bid to have the two face criminal charges. The Times of India later reported, based on viewing a video of the meeting that:


 * "standing behind a wire mesh, bespectacled Agrawal thundered into a microphone, running through a series of past violations of the company, which has been operating coal mines and power plants in Raigarh since the nineties. He spoke about the potential perils of its latest project on air, soil and water. And then, he pointed out a major violation: the company had already started construction at the site, even before it had received clearance from the Ministry of Environment and Forests."


 * "... In the recording, Agrawal loses his composure once when he says, "if they (JPL officials) are sons of their fathers, they should come forward".

The Wall Street Journal reported that a video of part of the meeting provided by Jindal features Agrawal stating, "I want to know who is the Jindal official who threatened the Superintendent of Police; Our SP is tied by the law, but we’re not; if he is his father’s son, he should come in front of me, if he is one man’s son, he should come in front of me; if he’s threatening the SP what will happen to these villagers; clearly [the Jindal official] is not the son of one man and that’s why he hasn’t come out in front of us; forgive me, but there’s corruption and thuggery across the ranks in government and corporate." (The Wall Street Journal did not uploaded the video clip to accompany the story and does not refer to the earlier comments made by Agrawal referred to in the Times of India story which was published several days earlier).

No initial response from Jindal
Initially, Jindal did not respond to what was said at the meeting.

Two weeks after the meeting, following complaints from Agrawal, the Ministry of Environment & Forests and Chhattisgarh Environment Conservation Board inspection team visited the site of Jindal's Tamnar II Project. On June 19 the Ministry wrote to Jindal briefly notifying the company of what they found and that they were revoking permission for the construction of the plant. In their letter, the Ministry's team found that JPL had begun construction of the 2400MW plant in an area of just 62 hectares "where the existing" Tamnar I plant had been given environmental clearance for in June 2006. The Ministry noted that the terms of reference for the new plant had specifically identified that 1041 hectares of land would be needed. "It is also noted that setting up of above power project in an area of 42 ha is not possible. Further the Ministry has not been informed for change in location of proposed power project."

"It is found," the Ministry concluded, that the "proposal for setting up of 4X600MW power plant is premature as there is no area where the proposed plant can bet set up. In view of the above, the Ministry hereby withdraws the letter of even no. dated 31. 03.2009 prescribing the Terms of Reference for the 4X60OMW coal based power project at Tamnar in District Raigarh in Chhattisgah".

One journalist wryly commented that it was "perhaps the first time the Union government has rejected an industrial project floated by an MP of its own party." Jindal though announced that it aimed to have the decision overtake. ""We have not done any expansion and the construction is for setting up a stacker reclaimer for the existing 1000MW power plant and has nothing to do with the proposed 2400MW project. We are confident that the terms of reference of the ministry of environment and forests would be restored," an unnamed spokesperson for the company claimed.

Jindal launches legal counter-attack
Five days after the Ministry pulled the plug on Jindal's massive new power station, the company struck back against Agrawal. Sanjeev Chauhan, the Senior General Manager of Jindal Steel & Power, complained to police that Agrawal had attempted to extort money from the company. The company claimed that in May 2009 Agrawal had threatened to disrupt a public hearing unless he was paid 25,000 rupees. Jindal claim that in response they gave his son a shop in a newly built complex. They also claimed that in September 2009 and again in April 2010 Argrawal sought 5 million rupees ahead of public hearings into company projects. In a letter, obtained by Agrawal under the Right to Information Act, Chauhan claimed that when the company did not pay, Agrawal threatened to kill him. (The police indicated that under the Indian Penal code Agrawal could be charged under Section 386 for extortion and section 506 B for threat to life.)

Asked by a reporter whether he was troubled by the potentially serious charges, Agrawal said, "I am not troubled. They (Jindals) are troubled, which is why they are doing this". Ritwick Dutta, Agrawal's lawyer, asked: "Why has the company filed an FIR against Agrawal after MoEF acted against them? Why did it not go after him earlier?" Chauhan told the Times of India that "we discussed the matter within the management. We were waiting for the right time" and stated that the company "will definitely prove the allegations in court." (A First Information Report (FIR) is a document prepared by Indian police containing details of information received about a possible offence. It is only after a FIR has been registered that police begin an investigation).

Sunita Narain, the Director of the Centre for Science and Environment told the Times of India that "this is exactly the tactic American corporations have used to browbeat environmental activists". She likened it to a Strategic Lawsuits Against Public Participation (SLAPP) which was used by companies in America "to shut up individuals who were raising issues of social and environmental concern".

An online petition in support of Argrawal stated that "JPL has also tried to lodge similar malicious cases against two other environmental activists -- Mr. Rajesh Tripathi, an activist with Jan Chetana, and Mr. Harihar Patel of the Adivasi Kisan Mazdoor Ekta Sangathan. Fortunately, the concerned police officials in these places have, so far, refused to register the complaints, citing lack of evidence." It also referred to Jindal having launched a number of defamation suits against Mr. Ram Kumar Agarwal, who had raised concerns about pollution from the Jindal Sponge Iron plant in Raigarh."

Retrospective approval of Jindal's coal washery
In another case, Jindal gained approval to establish a coal washery associated with the Gare IV/1 Coal Mine in the Raigarh district of Chattisgarh. On 3 February 2007, the Chhattisgarh Environment Conservation Board (CECB) gave Jindal Power "consent to establish" the coal washery on condition that it obtained environmental clearance from Ministry of Environment & Forests by 30 June, 2007. When the company didn't meet the deadline the secretary of Chhattisgarh Environment Conservation Board instructed it to halt work. According to a report in the Times of India, the regional office of CECB "was asked to inspect the project site and submit a report within seven days." Nothing happened. Several years later, on behalf of Jan Chetana, Ramesh Agrawal wrote to the minister of environment and forests Jairam Ramesh complaining about the plant and the fact that no public hearing had occurred on the proposal. Jindal Power told the Times of India that the "washery is not operational". Just four days before a public hearing on the project in late October 2010, the CECB's regional officer, John Lakra, inspected the site and stated that on that day "the coal washery was not in operation". Asked whether the construction of the plant was illegal given that they had been instructed to suspend construction, Lakr was uncertain: "Since no inspection had taken place earlier, it cannot be said whether the washery was completed before or after the halt work order was issued," he said. Agrawal told the Times of India that "this public hearing is a farce intended to legalise an illegal project."

Charges
On the morning of May 28th 2011 -- a little over a year after the May 8th public hearing at Tamnar village -- approximately 40 policemen "stormed into" the house of Agrawal to arrest him. He was arrested under Sections 501, 502, 503, 504 and 505 and 294 of the Indian Penal Code (IPC) that deal with defamation and obscene acts. According to Amnesty International, the state police charged the two men with "circulating defamatory material", "disrupting public order" and "causing alarm and panic among the public" at the May 8, 2010 mandatory public consultation held by the state pollution board. The two activists were due to be sent to Raigarh prison until June 3, 2011.

(Section 500 is for "punishment for defamation", Section 501 for "printing or engraving matter known to be defamatory", section 502 for the "sale of printed or engraved substance containing defamatory matter", section "criminal intimidation", section 504 "intentional insult with intent to provoke breach of the peace" and Section 505 "statements conducing to public mischief" and section 294 for "obscene acts and songs".

Agrawal chained to hospital bed
However, shortly after his arrest, Agrawal was sent to a nearby hospital for treatment after his blood pressure went up dramatically. While in hospital for hypertension, Agrawal was chained to a hospital bed. In a June 2 media statement Amnesty International stated that the this "amounts to cruel, inhuman and degrading treatment." "Shackling someone who is ill to a hospital bed is inherently cruel and inhumane punishment that should never have been used on a detainee arrested for peaceful activism," Madhu Malhotra, Amnesty International’s Asia-Pacific Deputy Director, said in a media statement.

The handcuffing was discovered when Agrawal's son, Dhananjay Agrawal, visited his father in hospital on June 2. A photo he took at the time, was featured on Amnesty's website and in news stories on the arrests. Subsequently the police agreed that the handcuffing was inappropriate. "Handcuffing him was a mistake," Rahul Sharma, the District Superintendent of Police of Raigarh told a journalist from the Times of India. "Agrawal is not a hardened criminal and I had given instructions that he should not be handcuffed. But it seems the guard appointed by the jail authorities did not know this. I have ordered an enquiry and we will take strict action against the guard," he said. Asked about the handcuffing, Sharma told the Wall Street Journal "there was no need for that ... The guards did it and I have sent a report about it."

The Chief Minister of Chhattisgarh, Raman Singh, was also critical of the handcuffing of Agrawal. "It's wrong; police should follow the norms," he said.

Bail hearing
A local court rejected their appeals for release on bail on June 2. The Times of India reported that in his order rejecting bail, judge R C S Samant wrote, "an offence under section 505, the act relates to disturbing public tranquility, which could have serious consequences.. the government objection is that the applicant is involved in such activities".

“The Sessions Court turned down our petition on the grounds that an anticipatory bail petition [filed by Mr. Agrawal] is still pending in the High Court. The Sessions court felt it would be inappropriate to go into the merits of the case in such an instance,” said Mahendra Dubey, Mr. Agrawal’s lawyer. Subsequently, the High Court rejected reviewing the merits of the case and also rejected bail on technical grounds.

An appeal to the Supreme Court is not possible until after July 4 as the court is in recess.

The Times of India reported that lawyers supporting Agrawal believe that his comments at the public meeting that ""if they (JPL officials) are sons of their fathers, they should come forward" at most could constitute insult and intimidation. However, both these are bailable offences. "The only non bailable charge against him is section 505 : statements relating to public mischief," Times of India reported.

Amnesty campaigns for the release of Agrawal and Patel
Following the arrest and imprisonment of Agrawal and Patel Amnesty International took the issue up and called for their release. "It appears that Ramesh Agrawal and Dr Harihar Patel have been targeted for their work to defend the human rights of local communities – we’re urging the Chhattisgarh authorities to drop all charges against them and immediately and unconditionally release these activists," they wrote.

"Instead of arresting those who speak out in defence of local communities’ rights, the Chhattisgarh authorities should make sure human rights defenders and environmental activists can carry out their legitimate, peaceful work without fear of harassment and intimidation," said Amnesty International’s Asia-Pacific Deputy Director, Madhu Malhotra.

Timeline

 * June 8, 2006: Jindal Power received environmental clearance from the Ministry of Environment & Forests for the construction of the the Tamnar I 4 x 250 megawatt power station.
 *  April 2007: While the Tamnar I Project was still under construction, Jindal Power proposes that an additional 1,320 MW of capacity be built on adjoining land. It was estimated that this would require an additional 750 hectares of land. The Terms of Reference for the Environment Impact Assessment were granted in July 2007.
 * August 2008: Jindal Power proposed that the expansion be increased to 1600 megawatts. The Terms of Reference for this were granted in December 2008.
 * Early 2009: Jindal Power proposed that the expansion be increased to 2,400 megawatts and that the project would require 1,041 hectares of land.
 * March 31, 2009: Ministry of Environment & Forests writes to Jindal Power setting out the terms of reference for an Environmental Impact Assessment of the company's proposed 2400 megawatt Tamnar II Project.
 * December 2009: In its prospectus Jindal Power stated that it estimated that it would need to acquire approximately 1,762 acres for the project for the "power plant, ash dyke, related green belt areas and housing colony, but excludes land required for setting-up coal transportation systems, railway sidings, right of use and right of way for water pipelines, transmission lines etc." As of November 2009 the company had acquired only 330.36 acres of land.
 * February 22, 2010: Chhattisgarh Environment Conservation Board (CECB) inspected the construction on the new power station site and direct the company to cease the work.
 * March 2010: Ramesh Agrawal wrote a series of letter to the Indian Minister of environment, Jairam Ramesh, pointing out that Jindal had started construction without environmental clearances.
 * April 5, 2010: Chhattisgarh state government orders that a public hearing into the proposed expansion be held.
 * May 8, 2010: Ramesh Agrawal and Dr Harihar Patel attended and spoke at a public hearing convened by the state pollution board over Jindal Power's proposed Tamnar II Project. At it Agrawal complained that the company had commenced work on the new power station without appropriate environmental clearances.
 * May 22, 2010: Ministry of Environment & Forests and Chhattisgarh Environment Conservation Board inspection team visit the site of Jindal's Tamnar II Project.
 * June 19, 2010: Ministry of Environment & Forests, Letter to Jindal revoking permission for the Jindal II Project, June 19, 2010.
 * June 23, 2010: Sanjiv Chauhan from Jindal Steel & Power filed a complaint to police against Agrawal, Patel and a third man, Rajesh Tripathi.
 * May 28, 2011: Agrawal and Patel are arrested in Raigarh, Chhattisgarh and held in the local prison following a complaint lodged by Jindal Power. Tripathi has not been located. Subsequently Agrawal was tranferred to a local hospital for treatment of his hypertension.
 * June 2, 2011: Agrawal found handcuffed to his hospital bed.
 * June 2, 2011: In a hearing before the Raigarh Sessions Court, Agrawal and Patel were denied bail and returned to prison. An appeal to the Supreme Court is not possible until after July 4 as the court is in recess.

Related SourceWatch articles

 * India and coal
 * Sri Lanka and coal

Resources

 * Jan Chetana, Twitter feed from Ramesh Agrawal's group.
 * Ministry of Environment & Forests, Letter to Jindal revoking permission for the Jindal II Project, June 19, 2010.

2010

 * "Govt rejects Congress MP Jindal's power project" Times of India, June 25, 2010
 * "Activist faces brunt of steel magnate's fury", Times of India, June 27, 2010.
 * Bahar Dutt, "Ministry pulls the plug on Cong MP's power plant", CNN-IBN, July 2, 2010.
 * "Stop witch hunt of activists by Jindal Corporation", E-Petition, July 2, 2010.
 * Nitin Sethi, "Chhattisgarh case against Jindal Power", Times of India, July 18, 2010.
 * Supriya Sharma, "Hearing in the midst of mining a mockery?", Times of India, October 23, 2010.

2011

 * Supriya Sharma, "Environmental crusader sent to jail for taking on company", Times of India, May 29, 2011.
 * Amnesty International, "Document - Indian environmental activists held", Urgent Action, Amnesty International website, June 2, 2011.
 * Amnesty International, "India urged to release environmental activists", Media Release, June 3, 2011.
 * Supriya Sharma, "Environmental activist denied bail, chained to hospital bed", Times of India, June 3, 2011.
 * Supriya Sharma, "Arrest of an activist raises uncomfortable questions", Times of India, June 4, 2011.
 * Megha Bahree, "Chhattisgarh Land Activist in Jail", Wall Street Journal,  June 8, 2011.
 * "Another Binayak Sen in making?", Hindstan Times, June 14, 2011. (This is a Indo-Asian News Service story).
 * Aman Sethi, "Anti-Jindal campaigners denied bail in Chhattisgarh High Court", The Hindu, June 23, 2011.
 * Megha Bahree, "Activist Ramesh Agrawal Denied Bail", Wall Street Journal, June 24, 2011.