On 1st June, the High Court of Kerala passed a ruling that the Coca Cola plant in India could begin operation without a license from the local Panchayat as well as without approval of the State Pollution Board – a ruling that raises more questions.

That the ruling itself was unfortunate was obvious; former Supreme Court Justice Krishna Iyer’s criticism of the ruling highlighted this even more. The Hindu quotes him as saying :
"I suspect the wisdom and constitutionality of the Coca-Cola judgment recently pronounced by a Division Bench of the Kerala High Court. Maybe I am wrong, or maybe the concerned judges are in error. When licence has been refused for Coca-Cola by a local authority, which is necessary under municipal law, the court cannot hold that, in certain circumstances, the licence may be deemed to have been granted, thus nullifying the statute...

"I have not had the time to investigate dialectically the many dimensions of this pronouncement. I must also confess that I have not fully investigated how, in the face of an earlier decision, a fresh case was instituted before a different bench. This calls for a closer study of the procedure adopted and the substantive law declared... In short, `Coca-Cola' as law has made an imbroglio of our writ jurisdiction and jurisprudence.''

The right to local resources and its access rests with the local community; the panchayat is the representative of that community. The right to give a license to a company to access those resources rests only with that local authority. Justice Krishna Iyer’s statement recognizes this right. It is quite possible that the high court recognized this right of the local people; how this judgment interpreted this right perhaps requires greater wisdom.

In the past, the Government of India has by-passed some of these rights under claims of national security or national welfare. Various development programs as well as military initiatives are examples. While the appropriateness of such process may be questioned, they do not hold for this dispute. Clearly, Coca Cola is not a project for national welfare and people cannot be asked to make huge sacrifices vis-à-vis their health and livelihoods so that an MNC can make millions of dollars of profits.

The former Supreme Court judge also presents another important question. Given that the Kerala high court judge had made a decision on the subject, how was a fresh case instituted in the presence of a different bench? And if this decision was unfavorable, would the company, with its millions of dollars and lawyers at its disposal continue to present the case in front of bench after bench till it got a favorable decision?

Even beyond the protocols of justice rests the question of justice itself. Do people have a right to those aspects of the Earth that sustain life – water, clean air, food? Can any justification that takes away such access be ethical and humane? Can the courts that deliver justice claim such decisions as just? Is it justice to allow a company making millions of dollars of profits continue to drain about a million liters of water a day when the water of the local community continues to become increasingly non-potable?

A related question, and a very significant one, asks who owns water. One Constitutional interpretation argues that people own water; the government is but the trustee of that ownership for the people it represents. Can the courts give what is not theirs?

And while the courts can claim to be the sole interpreters of the laws and our Constitution, the people are the owners of our Constitution – for it is a Constitution that we the people have given to ourselves. And that Constitution says that we are a socialist India – an India that is committed to working towards ensuring that people are able to meet their basic needs. As per the very Constitution, the role of the government in ensuring access of these basic needs is unquestionable. But we have a ruling here that actually makes it impossible for communities to have access to resources for their very sustenance – just so that a company with a global track record of unethical behavior can continue to make humongous profits producing and selling a product that is intrinsically unhealthy.

The courts can make their judgments, and communities around the world can discuss and debate, but the communities in Plachimada – and other communities in the vicinity of similar plants – have no such luxury. They will continue to struggle against exploitation of their resources, exploitation that has marginalized their own existence and affected their livelihoods and their lives. After all, Gandhi argued that any law he found inhuman, he would cease to abide by. And if a court ruling that directly puts at risk the livelihoods and lives of communities, what is?

While the Plachimada communities were aghast at the judgment of the court, they do not have the luxury to wallow. Indeed, they have resolved to continue their struggle against Coca Cola. And we have no choice but to continue to support their struggle.

- Sanat Mohanty

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