Supreme Court of India, Kalyaneshwari v. U.O.I & Ors, 21 January 2011
Child labour , Occupational safety and health
Establishment of a jurisprudential principle based on international law
Instrument not subject to ratification1
Occupational safety and health/ Use of asbestos/ Mining/ Establishment of a jurisprudential principle based on international law
Claimant Kalyaneshwari lodged a public interest litigation with the Supreme Court in order to request a ban on mining and manufacturing activities using asbestos or its derivatives. The claimant argued that since there was no law banning the use of asbestos, despite its negative effects on human health, the Supreme Court should proceed to declare a ban.
The Supreme Court considered that if the existing laws were being applied in line with the guidance given by that Court in the case involving the “Consumer Education and Research Centre”, there was no reason to ban economic activities on which a large number of families depended for their livelihood. However, improved supervision and regulatory control were required from the state on the use of asbestos in these industries. The Court also emphasized the fact that the claimant had not submitted any data or facts related to the development of manufacturing or mining activities in which asbestos was being used without state control. The Court stated that it was not acceptable to argue that asbestos was being used in a dangerous way across the country based solely on medical examinations performed on a few hundred workers.
Moreover, the Court did not accept the claimant’s argument that the case was a matter of public interest. The Court ruled that the claimant had a private interest in the results of the case since he had links with the largest iron foundry enterprise in the country, iron being one of the products that could be used to substitute asbestos.
Finally, in regard to secondary exposure to asbestos, the Court ruled that the matter had not been dealt with in the decision involving the “Consumer Education and Research Centre”, but that it was clear that if some disease were generated as a result of exposure to asbestos, regardless of whether such exposure happened in the workplace, the same control measures handed down by the Court would be applicable as in the case of primary exposure. The Court also pointed out that:
“The Court had also directed that a review by the Union and the States would be made after every ten years and also as and when the ILO gave directions in this behalf consistent with its recommendations or conventions. Admittedly, 15 years has expired since the issuance of the directions by this Court. The ILO also made certain specific directions by its resolution of 2006 adopted in the 95th session of the International Labour Conference. It introduced a ban on all mining, manufacture, recycling and use of all forms of asbestos.”2
Taking into account the guidelines issued by the Court itself concerning the case of the “Consumer Education and Research Centre”, and considering that the ILO had also issued new guidelines concerning the use of asbestos, the Court ordered the trade unions and States to review the protection measures in place related to primary and secondary exposure to asbestos. The Court also ordered States with a large number of asbestos industries to create regulatory bodies to supervise and control the activities of such industries with the aim of safeguarding the health of workers.