Holding

The Court held that it cannot legislate a ban on asbestos mining and manufacturing as no law prohibits it, and the petition was an abuse of process, thus refusing the mandamus and dismissing the petition.

Summary

The NGO Kalyaneshwari filed a writ petition under Article 32 seeking a mandamus to ban all mining and manufacturing of asbestos in India and to set up a committee for victim identification. The Court examined whether it could legislate a ban, whether the petition was a bona fide public‑interest litigation, and whether existing statutes already regulated asbestos use. It found no law prohibiting asbestos activities, noted that factories operate under licences under the Factories Act and the Environment (Protection) Act, and observed that the petition lacked concrete data and appeared to be motivated by business rivalry, constituting an abuse of process. Consequently, the Court dismissed the petition, refusing to impose a ban, but issued directions for strict adherence to earlier judgments, a review of safeguards, and possible regulatory measures. The petition was dismissed with notice of contempt proceedings against the petitioner.

Issues considered

Whether the Supreme Court can issue a mandamus under Article 32 to ban asbestos mining and manufacturing in the absence of a specific statutory prohibition.
Whether the petition qualifies as a bona fide public‑interest litigation or is an abuse of process.
Whether existing laws (Factories Act, Environment (Protection) Act) and regulatory mechanisms sufficiently address asbestos hazards, rendering a ban unnecessary.
Whether the petitioner has disclosed sufficient factual material and has standing to seek the relief.
What directions, if any, the Court can issue to ensure compliance with existing regulations and review of asbestos safeguards.

Legislation cited

Subjects

asbestospublic interest litigationArticle 32environmental lawhealth hazardsabuse of processregulatory controlmandamus

Judgment

(2011] 1 S.C.R. 894

A KALYANESHWARI
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 260 of 2004)
JANUARY 21, 2011
8
[S.H. KAPADIA CJI., K.S. RADHAKRISHNAN AND
SWATANTER KUMAR, JJ.]

Constitution of India, 1950:
c
Articles 32, 14 and 19 - Public interest litigation -
Petition under Article 32 by a non-governmental organization
- Seeking direction to Union of India and other States to
immediately ban mining and manufacturing activities in
D asbestos or its allied products - Held: Cannot be granted -
There is no law banning the use of asbestos in various
~
manufacturing processes despite its ~dverse effects on
human health - Supreme Court cannot legislate and ban an
activity .Under relevant laws - Every factory using or
· manufacturing asbestos, obtains a licence under the Factories
E
Act as well as permission from the competen.t authorities
including permission under the Environmental Laws - All the
- laws in force have been complied with and directions of this
Court in the case on similar issue have been canied out -
Reply affidavits by different States as well as Union of India
F to the effect that such activity was carried out in accordance
with specified parameters and under' due supervision - ·More
so, there is lack of specific data as also vague averments in
the writ petition - Only few hundred workers were subjected to
medical examination - Large number of families are
G dependent .upon such processes - Also, the writ petition is a
result of business rivalry and has been filed by the petitioner
again at the behest of other industries to ultimately cause
material and business gains to that or such other companies ~
- Thus, it lacks bonafide and is complete abuse of process
H 894
KALYANESHWARI v. UNION OF INDIA, & ORS. 895

of law - It has been filed as a proxy litigation for the purpose A
of achieving private interest and, thus, rejected - Certain
directions issued - Public interest litigation.

Article 32 - Public interest litigation - Maintainability of
- Held: Petitions which are bona fide and genuine, not 8
motivated by extraneous considerations and in public interest
alone, are entertained in this category - Litigant is under an
obligation to disclose true facts and approach the Court with
clean hands - Courts while exercising jurisdiction has to take
great care that wide jurisdiction should not become a source C
of abuse of process of law by disgruntled ,litigant.

The petitioner (a registered society), is a non-
governmental organization. It has filed the instant writ
petition under Article 32 of the Constitution of India, 1950,
praying for issuance of a writ of mandamus directing the D
Union of India and other respondent-States to
immediately ban all use of asbestos in any manner
whatsoever; constitution of a Committee of eminent
specialists to frame a scheme for identification and
certification of the workers/victims suffering from E
asbestosis or other asbestos related diseases or cancer;
and issuance of direction to the States and the Union
Territories to identify the workers/victims therein and
provide them treatment and take measures to prevent
harmful effects of asbestos in the factories or F
establishments.

Disposing of the writ petition and dismissing the IA,
the Court.

HELD: 1. There is no merit in the instant writ petition, G
as far as prayer of the petitioner for banning of mining
and manufacturing activities in asbestos or its allied
products is concerned. While rejecting the prayer, certain
directions are issued. [Para 28] (928-C]
H
896 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A 2.1 There is no law banning the use of asbestos in
various manufacturing processes despite its adverse
effects on human health. It is not for this Court to legislate
and ban an activity under relevant laws. Every factory
using or manufacturing asbestos, obtains a licence
B under the Factories Act as well as permission from the
competent authorities including permission under the
Environmental Laws. In the case of *Consumer Education
and Research Centre certain directions were issued with
regard to the said issue. Once all the laws in force have
c been complied with and directions of this Court as
contained in the case of *Consumer Education and
Research Centre are carried out in their true spirit, there
is no reason as to why this Court, in exercise of its extra-
ordinary jurisdiction under Article 32 of the Constitution,
0 should ban such an activ'ity when admittedly large
number of families are dependent upon such processes.
It has to be ensured that proper precautions are taken.
The Court had already made ILO guidelines.as one of the
safety measures to be complied with by the industries
and it is expected of each State Government and the
E Union Government to ensure safe and controlled use of
asbe~tos. Better supervision and regulatory control is
required than banning of the activity. The affidavits filed
by the official respondents, including respondent No. 37,
Asbestos Cement Product Manufacturers Association
F specifically point out 'safe and controlled' use of
asbestos in manufacturing processes. The prayer with
regard to constitution of a Committee comprising of
specific persons is not a matter that falls within the realm
of jurisdiction of this Court. It is for the expert bodies in
G the concerned Ministries which should regulate proper
measures in this regard to ensure proper utilization of
asbestos and raw materials in relation to various
manufacturing activities, if they are being carried on in
accordance with law and without endangering the life of
H the people. [Para 12] [914-H; 915-A-G]
KALYANESHWARI v. UNION OF INDIA & ORS. 897

2.2 The reply affidavits filed by different States as well A
,,.
as Union of India clearly bring out that such activity,
wherever is being carried out, is in accordance with
specified parameters and under due supervision. The
writ petition filed does not provide any data or detailed
facts in relation to such uncontrolled or una.uthorized B
activity of manufacture of asbestos being carried out in
any State. Merely stating that a few hundred workers
-<., were subjected to medical examination and were found
to be affected by inhalation of asbestos particles may not
be sufficient for this Court to accept it as a general c
proposition that there is hazardous use of asbestos all
over the country, particularly, in view of the fact that such
activity is being carried out at the mining or industrial
· level in different parts of the country..[Para 10] [912-G-H;
913-A-B] D
-?-
. 2.3 The petitioner has not been able to clarify as to
how the instant petition came to be filed j!l face of the
judgment of this Court in th_e· case_ of'*Consumer
Education and Research Centre and, in fact, What was the
· need to file it. The petitioner made no effort to collect any E
information/data from various States as to whether the
directions issued by the Court in that matter are being
......
strictly implemented or not at all. On the contrary, it is the
stand of the States as well as Union of India that the
directions issued by this Court are being strictly adhered F
to. The parameters and norms have been specified and
the industries using such raw materials are being
''· constantly watched, in relation to all the functions of the
factory, specially keeping in view the environment and
health status of the workers and nearby residents. Even G
--(
subsequent to the filing of the instant petition,· the
petitioner has not put in any effort to seriously rebut the
averments made in various· affidavits filed by the States.
[Paras 12 and,23] [925-A-B]
~
*Consumer Education and Research Centre vs. Union H
898 SUPREME COURT REPORTS [2011] 1 S.C.R.

A of India (1995) 3 SCC 42; Jayjit Ganguly vs. Union of India
CWP No. 412 of 2002 decided on 15th December 2004 - ~
referred to.
2.4 The government had introduced the White
Asbestos (Ban on Use and Import) Bill, 2009 which is
8
pending in the Upper House. Thus, there could be no
doubt that it is a matter which squarely falls in the domain
of the legislature and the legislature in its wisdom has
taken steps in the direction of enacting necessary law.
Issuance of any direction or formulation of any further
C policy by this Court would obviously be a futile exercise.
There could hardly be any justification for banning,
completely or partially, of the activity of manufacturing of
asbestos and allied products. The Bill is yet to be passed
but it is clearly demonstrated that the Government is
D required to take effective steps to prevent hazardous
impact of use of asbe~tos. [Paras 13 and 15] [915-G-H;
916-A-B; 917-D-E]
2.5 In the matter relating to secondary exposure of
E workers to asbestos, though the grounds have been
taken in the writ petition without any factual basis, again
in the rejoinder filed to the counter affidavit of
respondent No. 37, the issue has been raised by the
petitioner in detail. In the earlier judgment of this Court
F in the case of *Consumer Education and Research
Centre, hazards arising out of primary use of asbestos
were primarily dealt with. The Court had noticed that it
would be clear that diseases occurred wherever the
exposure to the toxic or carcinogenic agent occurs,
G regardless of the country, type of industry, job title, job
assignment or location of exposure. The diseases would
follow the trail of the exposure and extend the chain .of
the carcinogenic risk beyond the work place. The Court
had also directed that il review by the Union and ihe
States would be made after every ten years and also ·,as
H arid when the ILO gave directions in this beh~lf
KALYANESHWARI v. UNION OF INDIA & ORS. 899
-
consistent with its recommendations or conventions. A
·,,, 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 B
and use of all forms of asbestos. Serious doubts have
been raised as to whether 'controlled use' can be
effectively implemented even with regard to secondary
....(
exposure. [Para 14] [916-C-H; 917-A-B]
2.6 The petitioner NGO is not recognized by any c
Ministry and no financial assistance has been sanctioned
to it. [Para 22] [924-G-H]
3. The Courts, while exercising jurisdiction and
deciding a public interest litigation, has to take great care, D
-1' primarily, for the reason that wide jurisdiction should not
become a source of abuse of process of law by
disgruntled litigant. Such careful exercise is also
necessary to ensure that the litigation is genuine, not
motivated by extraneous considerations and imposes an E
obligation upon the litigant to disclose true facts and
approach the Court with clean hands. Thus, it is
-4
imperative that the petitions, which are bona fide and in
public interest alone, be entertained in this category.
Abuse of process of law is essentially opposed to any
F
public interest. One, who abuses the process of law,
· cannot be said to· serve any public Interest, much less, a
larger public interest. A petition which lacks bona fide and
is intended to settle business rivalry or is aimed at taking
over of a company or augmenting the business of
--( another Interested company at the cost of closing G
business of other units In the garb of PIL would be
nothing but abuse of the process of law. [Paras 23 and
25] [925-C-E; 927-D-G]

Ashok Kumar Pandey Vs. State of West Bengal (2004) H
900 SUPREME COURT REPORTS [2011] 1 S.~.R.

A 3 SCC 349;Ranjan Singh La/an Vs. Union of India (2006) 6
-
sec 613 - relied on.
4.1 From the record, it is clear that 'BK' (claiming to
be working as Secretary of the petitioner and who filed
. petition on the same issue before the Gujarat High Court
8 in B.K. Sharma v Union of India AIR 2005 Guj 203) as well
as 'SS' (one of the member of the Society and has
worked with the Steel Company ESCL) had professional
commitment in one form or the other either on permanent >-
or temporary basis with the Steel Company ESCL. It has
C been stated in the affidavit filed by 'BK' that three writ
petitions were withdrawn on the advice of the Gujarat
High Court which is hardly true .. The court had only
granted liberty, While dismissing the writ petitions as
withdrawn, to approach the Central Government. The
D · Central Government had again declined to accept the
representations made by the petitioners resulting in filing ._..
of writ petitions for the second time which culminated in
the final judgment by the Gujarat High Court in the case
· of B.K. Sharma v Union of India. [Para 21] [923-F-H; 924·
E A]
4.2 In the instant case, there is hardly any
improvement in the conduct of the petitioner before this
Court. Even before this Court, a judgment which has
attained finality on all factual matrix and even otherwise,
F is attempted to be brushedaside by making Irresponsible
statements, Inter a/la, that the Gujarat High Court had
failed to apply its mind. The judgment of the Gujarat High
Court for all intent and purposes attained finality and the
legality or correctness of the judgment cannot now be
· G questioned In these proceedings. It Is of no use ;md help
to the petitioners now to claim that no proof was
produced before that Court to establish the allegations
that the petition was filed at the behest of ESCL. They
were writ petitioners and the Court, after hearing the
H
KALYANESHWARI v. UNION OF INDIA & ORS. 901

parties at length and perusing the record, has recorded A
the said findings which in any case, do not suffer from
any infirmity, -much less, illegality so as to be disregarded
by this Court. The findings recorded by the Gujarat High
Court reflect the picture of the petitioner which certainly
invites judicial chastisement and appropriate orders. s
[Para 21) [924-B-F]
4.3 It cannot be ig~ored that valuable time of this
Court is consum~d in dealing with such public interest.
litigations which are filed without proper study and data
and merely on some !reference to very few workmen C
working in an industry and_ without projecting any
requirement at the national level demanding the attention
of this Court in treating if'as a national problem. The
Kerala State Human Rights Commission by order dated
31.01.2009 dealt with the same problem which does not D
even find a mention in the instant petition and which the
petitioner is expected to know as it claims to be working
for the common man in this behalf. In the name of the
poor let the rich litigant not achieve their end of becoming
richer by institutin,9 such set of petitions to ban such E
activities. Besides the fact that the instant petition lacks
1

bona fides, it is all~o obvious that the petitioner though
had prayed for complete ban on all mining and
manufacturing activities but had hardly made any study
or prepared statistical data in that regard. It only made F
reference to certain studies in foreign countries. The
petitioner, claiming to be an organization involved in the
good of t_he common man, ought to have taken greater
pains to state essential facts supported by documents in
·relation to Indian environment [Paras 23 and ~5) [925-B- G
D; 926-G-H; 927-A-B]

. 4.4 Presumably"'ihe direct impact .of banning of
activities of mining/manufacturing relating to asbestos
shall result in Increase in demand of cast iron/ductile iron
H
902 SUPREME COURT REPORTS [2011) 1 S.C.R.

A production as they are some of the suitable substitutes
for asbestos. The Steel Company-ESCL is one of the
largest manufacturer of lron and allied products in India
and there was a professional and/or other connections
between ESCL and 'BK' on the one hand and 'BK' and
B 'SS' on the other who, admittedly at present, is involved
with the activities of NGO for a considerable time. Thus,
it would be a reasonable conclusion to draw that the writ
petition has been hardly filed in public interest but is a
private interest litigation to give rise to business
c · opportunities in a particular field. [Para 24] [925-E-H]
4.5 The document referred to as Ex. P9 in the writ
petition Is probably the only document which allegedly
- records the conditions oi a few workmen in India and
contains the names-.of a few doclor:s and workers. This
D document is neither signectby anybo'(fy nor does it give
. . -- address of any workman or-the Industry/factory where
. such workman is working. It Is expected of the petitioner
·to have made proper efforts in collection of such material
before it moved this Court to treat this problem at the
E national level and had spent its judicial time. All the States
In the country have been issued notices of this petition
ana they have denied the allegations. It was incumbent
upon the petitioner thus, to at least substantiate the
averments in the petition by some cogent and
·F documentary evidence actually related to the working
conditions of the workmen In various factories In different
States. The petitioner has miserably failed to discharge
this onus. [Para 26] [927-B-E]
G 4.6 The conduct of the petitioner before the Gujarat
High Court appears to be contemptuous and certainly Is
an abuse of the process of the court in terms of the
finding recorded by that Court which has attained finality.
The petition. was instituted at the behest of ESCL, while
H the Instant petition also does not demonstrate that
KALYANESHWARI v. UNION OF INDIA & ORS. 903

intention of the petitioner is to achieve public interest The A
.., instant petition appears to have been moved again at the
behest of the same company and, in any case, to
ultimately cause material and business gains to that or
such other companies. Thus, the instant petition lacks
bona fide, is an ~buse of the process of the Court and 8
has been filed as a proxy litigation for the purpose of
achieving private interest. This Court cannot permit such
practice to prevail and it needs to be deterred at the very
-.(
threshold. [Para 27] [927-F-H; 928-A-B]
Raunaq lntemational Ltd. vs. I. V.R. Constructions LTD. c
(1999) 1 sec 492 - relied on.
5.1. The following directions are issued while
disposing of the writ petition:
D
a. The Ministry of Labour in the Union .of India and
Department of Industries and Labour in all the State
Go.vernment would ensure that the directions
contained in the judgment of this Court in the case
of Consumer Education and Research Centre are
E
strictly adhered to;
b. In terms of *Consumer Education and Research
Centre case as well as reasons stated therein, the
Union of India and the States Is directed to review
safeguards In relatie>n to primary as well· as F
secondary exposure to asbestos keeping In mind the ·
Information supplied by the respective States In
furtherance to the earllerjudgment as well as the
fresh. resolution passed by the ILO. Upon such
review, further directions, consistent with law, be G
Issued within a. period of six months from the date
of passing of this order; ·
c. It Is directed that If Union of India considers It
proper and In public interest, afteF consulting the
H
904 SUPREME COURT REPORTS [2011) 1 S.C.R. •
A States where there are large number of asbestos
industries in existence, it should constitute a
regulatory body to exercise proper control and
supervision over manufacturing of asbestos
activities while ensuring due regard to the aspect of
B health care of the workmen involved in such activity.
It may even constitute a Committee of such experts
as it may deem appropriate to effectively prevent and
control its hazardous effects on the health of the
workmen;
c d. The concerned authorities under the provisions of
Environment (Protection) Act, 1986 should ensure ·
that alt the appropriate and protective steps to meet
the specified standards are taken by the industry
before or at the time of issuance of environmental
D clearance. [Para 16] [917-E-H; 918-A-F]
5.2 It is imperative for the Court to issue the said
directions in order to strike a balance between the health
hazards caused by this activity on the one hand and
E ground reality that a large number of families, all over the
country, are dependent for their livelihood on this activity,
on the other. The Court is not entering into the arena of
legislature and are passing the said directions in
furtherance to the law laid down by this Court which, in
F terms of Article 141 ·of the Constitution, is binding on all
concerned and to ensure effective and timely
implementation of the provisions of the Environment
(Protection) Act, These directions must be read and
construed in comity with the proposed legislation and are
G in no way detrimental to the same. [Para 17] [918-F-H;
919-A]
Case Law Reference:
(1995) 3 sec 42 · Referred to Para 2
H CWP No. 412 of 2002 Referred to Para 11
KALYANESHWARI v. UNION OF INDIA& ORS. . 905 ·

(2004) 3 sec 349 Relied on Para 25 A
(2006) 6 sec 613 Relied on Para 25
(1999) 1 sec 492 Relied on Para 27
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. B
260 of 2004. ·
Under Article 32 of the Constitution of India. ·

· H.P. Raval ASG, A. Mariarputham, AG, .Dr. Manish
Singhvi, A.A.G .. Manjit Singh, AAG, Harish Chandra, Rajeev K. · c
Virmani, I. Venkatanarayana, Ashish Mohan, K.K. Mohan, ,
Aruna Mathur, Yusuf Khan, Avneesh Arputham, Megha Gour (for
Arputham, Aruna & Co.) Gopal Prasad, V.G. Pragasan, S.J..
Aristotle, Prabu Ramasubramanian, Edward Belho, K. Enatoli
· Serna, Rituraj Biswas, Anirudh Sharma, Arvind Kumar Stiarma o
Mukesh K. Giri, R. Ayyam Perumal, Hemantika Wahi, Nupur
Kanungo, A. Subhashini, Avijit Bhattacharjee, Sarbani Kar,
Debjani Das·Purkayastha, Bidyabrata Acharya, Rekha.Pandey,
S.W.A. Qadri, C. S. Khan, Ch. Shams~~in, D.S. Mahara, Anil
Kaityar, Radha, Shyam Jena, Vibha -Datta Makhija, B.S. E
Banthia, Khwalrakpan .Nobin Singh, Sapam Biswajit Meitei,
Corporate Law Group, John Mathew, Sanjay R. Hedge,
Pradeep Misra, Anil Shrivastav, Sanjay V. Kharde, Asha .G. ·
Nair, Ranjan Mukherjee, S. Bhowmick, S.C. Ghosh, Gopal
Singh, Manish Kumar, Naresh Bakshi, D. Bharathi Reddy, F
Aruneshwar Gupta, Rashmi Virmani, Sandeep Bharathi Reddy,
Aruneshwar Gupta, Rashmi Virmani, Sandeep Narain, Mukta
Dutta, Ashish Kothari (for S. Narain and Co.), Pragyan P.
Sharma, Rupesh Gupta, Siddharth Lodha, P.V. Yogeswaran,
T.V. George, Atul Jha, Dharmendra Kumar Sinha, Shrish
Kumar, Misra, Ajay Kumar Singh, Dipak Kumar Jena; Minakshi G
Ghosh Jena, Manmohan, Naresh K. Sharma, Anuv~t Sharma,
T. Harish Kumar, P. Prasantha, V. Vasudevan, Devanshu
Kumar Devesh, Milind Kumar, Lawyer$• Knit and Co., Kuldip
Singh, Ashok K. ~rivastava, Sunil Fernandes, G.N. Reddy,
Haripesh Singh, Kamal Mohan Gupta, R. Sathish, Pragyan P. H ·
906 SUPREME COURT REPORTS [2011] 1 S.C.R. •
A Sharma, P.V. Yogeswaran, D. Mahesh Babu for the appearing
parties.

The Judgment of the Court was delivered by

SWATANTER KUMAR, J. 1. This petition under Article
B 32 of the Constitution of India has been filed by the petitioner
Kalyaneshwari (a registered Society), through its Chairman,
with a prayer that a writ of mandamus be issued directing the
Union of India and other respondent-States to immediately ban
all uses of asbestos in any manner whatsoever; further that a
c committee of eminent specialists be constituted to frame a
scheme for identification and certification of the workers/victims
suffering from asbestosis or other asbestos related diseases
or can.cer. The petitioner also prayed that the respective
Governments should be directed to identify the workers/victims
D in the respective States and Union Territories and to provide
them due treatment as well as to take measures to prevent
harmful effects of asbestos in the factories or establishments
where such activity is being carried out and also to initiate
criminal proceedings against all the responsible persons
E including the owners of such factories, organizations and
associations for infringing the right to life of the asbestos
victims.

2. The above writs/directions have been prayed for on the
premise that petitioner, Kalyaneshwari, is a non-governmental
F organization, registered under the Societies Registration Act
.XXI of 1860. It is a voluntary organization allegedly promoted
to serve the general public without distinction of caste or
religion and working for the protection of consumers' interest.
This Court in the case of Consumer Education and Research
G Centre v. Union of India [(1995) 3 SCC 42)] accepted the well
)-·
establi.shed adverse effects of asbestos including the risk
beyond the work place and held as under:

"17. It would thus be clear that disease occurs wherever
H the exposure to the toxic or carcinogenic agent occurs
KALYANESHWARI v. UNION OF INDIA & ORS. 907
[SWATANTER KUMAR, J.]

regardless of the country, the type of industry, job title, job A
assignment or location of exposure. The disease will follow
the trail of the exposure and extend the chain of
carcinogenic risk beyond the workplace. It is the exposure
and the nature of that exposure to asbestos that
determines the risk and the diseases which subsequently B
result. The development of the carcinogenic risk due to
asbestos or any other carcinogenic agent, does not require
a continuous exposure. The cancer risk does not cease
when the exposure to the carcinogenic agent ceases, but
rather the individual carries the increased, risk for the c
remaining years of life ... n

3. The petitioner alleges that developed countries all over
the world have drastically reduced the manufacture of asbestos
and some of them have even banned 'ciiffere,nt types of
asbestos. In India, the use of this carcinogenic material is D
increasing every year approximately at the rate of 12% and the
petitioner drew attention of the concerned authorities towards
this issue and requested them to take stringent actions, but to
no effect. The World Trade Organisation considered this aspect
in the EC-Asbestos case, [WT/DS135/ABR] adopted on 5Ut E
April, 2001 where its appellate body observed that available
scientific data reveals that a high mortality rate persists despite
the so called 'safe' use of Chrysolite Asbestos. Surveys carried
out more than 30 years after the introduction of controlled use
policy in United Kingdom indicate a significant increase in F
deaths from Lung Cancer and Mesothelioma, not only among
the workers but even to the families residing nearby such plants.
Citing the example of some countries and the measures being
taken by different organizations, request was made for banning
import, manufacture and use of asbestos and it is averred that G
'controlled use' is hardly workable. It is also averred by the
petitioner that in most parts of the world, there was a drastic
reduction in manufacture and use of asbestos. In fact, efforts
are being made to ban on use of asbestos in any form. On the
contrary, in India, use of asbestos was permitted H
908 SUPREME COURT REPORTS [20.11] 1 S.C.R.
•
A indiscriminately on the premise that its controlled use is
,......
absolutely safe. There is a large number of victims in India who
are sufferingfrom various effects of asbestos in one form or
the other. The petitioner claims to have identified five hundred
plus victims from five different States, namely, West Bengal,
B Rajasthan, Jharkhand, Andhra Pradesh and Tamil Nadu. The
petitioner claims that in order to find out the exact health
scenario of asbestos workers, it got 14 direct workers of an
asbestos unit examined by qualified occupational health doctors >-
and the results were shocking, inasmuch as 13 workers were
c suffering from asbestosis with five workers being in advanced
stage. Though these workers are covered under State .ESI
Scheme, no proper and adequate treatment is being provided
to them. Thousands of poor and ignorant people in Udaipur
District in Rajasthan were engaged in asbestos mining before
the Ministry of Mines decided in the year 1996 not to issue or
D
renew any asbestos mining licenses in India; Still today, some ,,.
of them are engaged in illegal mining, which they do at the
instance of local asbestos products manufacturers. It is also
averred by the petitioner that there is complete failure on the .
part of the manufacturers in providing safety equipments to
E workers, regular health check-up, monitoring air borne dust and
maintaining health register of the workmen. The petitioner also
claims to have already documented more than 500 victims
suffering from asbestos related diseases from the above-noted
· five States and, upon examination by well-known chest
F specialists, they have been identified as suffering from such
diseases. The cost of the treatment is quite high. First, no
compensation has been paid to these victims and second,
even if some compensation was paid it was too meagre to
meet the expenses. All these victims are suffering for no fault
G of theirs but due to exposure to asbestos over which, they hardly r·
have any control. There is no law in place which directs payment
of compensation to such victims. No medical records are being
maintained to regulate the treatment of victims of Asbestosis.
The carcinogenic properties of asbestos including Chrysotile
H or White Asbestos, are well-established and the same is a
--
KALYANESHWARI v. UNION OF INDIA & ORS. 909
[SWATANTER KUMAR, J.]
.. _,..
911
universally accepted fact. Despite overwhelming evidence,
asbestos which has been banned in other countries is still being
A

manufactured, imported and used in India and the Government
has failed to take proper action which compelled the petitioner
to approach this Court by filing the present Writ Petition in
--< larger public interest as there is apparent violation of Articles B
~ 14 and 21 of the Constitution of India.

...... 4. This petition was filed in the year 2004. Thereafter,
notice has been issued to the respondents, various affidavits
have been filed and the matter has been heard from time to
time. One of the main objections raised by the respondents
c
and, particularly, respondent No. 37 i.e. Asbestos Cement
Product Manufacturers Association is that the. present Writ
Petition is an abuse of the process of the Court and has been
instituted at the behest of a business rival. The petition lacks
""'- bona fide and is intended to take unnecessary advantage of D
+ the proceedings before the Court~ This issue, to a large extent,
has been dealt with by a Bench of the Gujarat High Court in
B.K Sharma v. Union of India, [AIR 2005 Guj 203). Yet, the ·
-j
present petition has been filed with the intention of creating
impediment in the establishment and running of the industrial E
. units in various States dealing with production or manufacture
''
.. of asbestos in accordance with law and without infringing any
right of others whatsoever. This issue is of some significance
and we shall proceed to deliberate on the same and record our
conclusion at a later stage. First, we would like to deal with the F
merits of the case and what directions, if at all, can be issued
by this Court.

_ 5. Several States, Union Territories as well as Union of
......, India have filed separate affidavits. In the affidavit filed on behalf
of the Union of India, it is stated that the organized sector in
G
India uses only imported variety of Chrysotile asbestos which
,, is considered to have least harmful impact on the health of
workers engaged in the manufacture of asbestos products and
sufficient precautionary measures are being taken by, the
H
910 SUPREME COURT REPORTS [2011] 1 S.C.R.

A industry to protect the workers from excessive exposure to the
hazardous impact of asbestos fibre. Meeting the contentions
...
~ ~

raised by the petitioner as aforenoticed, it is submitted on
behalf of the concerned respondents that only selective
references have been made by the petitioner to unnecessary
B inflate the impact of asbestos fibre on public health. No I-
~
recognition has been given by the petitioner to the strict
emission norms prescribed for the industries manufacturing
asbestos products by Ministry of Environment and Forest and ,._
other efforts undertaken by the Ministry have also not been
c referred to by the petitioner. Prescription of stringent emission
norms is one of the main effort made by the concerned Ministry.
The prescribed norms in the Environment (Protection) Act,
1986 are as follows :

"These standards are 2.0 mg/Nm3 of total dust and
D 4 fb/cc of pure asbestos material, now being revised to
-t F
0.5fb/cc. Ministry of Labour has revised the permissible
work place emission norms vide notification dated April
2001 bringing it down to 1 fb/cc from 2 fb/cc. The report
of WHO in this regard has been quoted out of context. In
E the said report it has been clearly stated that further
research is required 1o determine the adverse impact of
Asbestos Fibre on human health."
~

6. The asbestos product only contains 8-10% asbestos
F fibre and the rest is cement (50%), clay (30-35%) and fly ash,
wood, pulp, etc. which are not considered harmful for human
health. Even here the asbestos fibres are locked with cement
matrix particles and there is. no scope for its disintegration/
spreading in the air in normal circumstances. Referring to the
proceedings before the Calcutta High Court, the Union of India
G
submitted that the Calcutta High Court refused to impose any
.,.._.
ban on the manufacture and use of asbestos in Writ Petition
No. 412 of 2002, copy of which has been placed on the record.
It is the stand of the Union of India that the petitioner has not
furnished any details of the industries which are working contrary
H
KALYANESHWARI. v. UNION OF INDIA & ORS. 911
[SWATANTER KUMAR, J.]

to law and where the workers are exposed to such hazardous A
health conditions. It is only then that the Government can take
action in accordance with law and the petition, as such, lacks
specific particulars.

7. States have taken different stands in their respective
B
affidavits. However, all of them have stated that appropriate
measures are being taken to ensure working of such units in
accordance with law. In the affidavit filed on behalf of the State
~
of Kerala, it is averred that there is only ohe factory carrying
on manufacture of asbestos cement sheets and allied products
in the entire State. This fadory has obtained licence under {ihe
c
provisions of the Factories Act. It is further pointed out that his
1

factory was established with fully automatic fibre hand;iing
system in the year 1986. After that, no asbestos manufact~ring
factory has been established in the State. While referring t the
judgment of this Court in the case of Consumer Education 1and D
+ Research Centre (supra), it is averred that strict instructions
were issued to the Inspector of Factories and Boilers to take
urgent steps for implementation of the directives of this Court.
There is constant watch/review upon the standards of
permissible exposure limit. Value of fibre/cc should be in line E
with the international standards and it would not exceed 0.1
fibre/cc at any time in the last three years. Some states like
Himachal Pradesh, Tripura, Mizoram, Sikkim, Arunachal
Pradesh and Manipur have stated that there is no asbestos
factory within their territory. F
8. State of Tamil Nadu in its affidavit has averred that only
. 13 factories which are handling Asbestos have been brought
under the purview of Factories Act, 1948 out of which 3
factories are not working for the past 5 years and in the
G
t·-...1. remaining 10 factories "Membrane Filter Tesr is regularly being
conducted and the asbestos fibre is found to be within the
permissible limits. The workmen of these factories are covered
under the Workmen Compensation AcUEmployees State
Insurance Scheme/Group Insurance of Insurance Company.
H
912 SUPREME COURT REPORTS (2011] 1 S.C.R. ..
'
A Thus, their interests are well protected. State of Bihar in its
affidavit has stated that presently there is no industrial unit
involved in manufacturing asbestos in the State. The use of
asbestos product in the State is limited and is not to an extent
that the secondary user of asbestos is likely to suffer from
s Mesothelioma fatalities attributed to asbestos. On the contrary,
it also appears from the records that there are 22 cases of
asbestosis in Gujarat and three cases of Mesothelioma in
Andhra Pradesh. Out of these, persons suffering from
Asbestosis or other diseases in Gujarat have not been given
c any compensation and their cases are pending, while the three
persons suffering from Mesothelioma in Andhra Pradesh have
been paid the compensation. Thus, it is a matter which
essentially has to invite the attention of the Court.

9. From the above narrated factual matrix, giving rise to
D this Public Interest Litigation, it is clear that first, the Court has
to examine whether any statutory, fundamental or other right of
any person is being 11iolated and an activity which is prohibited
under law is being carried out i.e. production and manufacture
of asbesto~ and allied products? If so, whether the Government
E . is actively permitting such illegal' activity? Second, whether in
any case this Court can, in law, direct the banning of this activity,
if not, what directions can be issued by the Court?

10. From the contents of the Writ Petition filed before this
F Court, it is clear that there is no law enacted so far which
requires banning of any activity in regard to asbestos at the
stage of mining, manufacture or production. Of course, there
can be no doubt that uncontrolled utilization of asbestos, in any
form, can be hazardous to human health. The reply affidavits
filed by different States as well as Union of India clearly bring
G . out that such activity, wherever is being carried out, is in :.--.-.
accordance with specified parameters and under due
supervision. The Writ Petition filed does not provide any data
or detailed facts in relation to such uncontrolled or unauthorized
activity of manufacture of asbestos being carried out in any
H
KALYANESHWARI v. UNION OF INDIA & ORS. 913
[SWATANTER KUMAR, J.]
State. Merely stating that a few hundred workers were subjected A
to medical examination and were found to be affected by
inhalation of asbestos particles may not be sufficient for this
Court to accept it as a general proposition that there is .
hazardous use of asbestos all over the country, particularly, in
view of the fact that such activity is being carried out at the· -s
mining or industrial level in different parts of the country. This
Court had the occasion to examine this matter at great length
in the case of Consumer Education and Research Centre
~
(supra) wherein it issued certain directions. Once that judgment
had been pronounced, there is hardly any occasion for the c
petitioner to institute this Writ Petition as an independent
pr<;>ceeding. The petitioner has made no effort to collect any
information/data from various States as to whether the
directions issued by the Court in that matter are being strictly
implemented or not at all. On the contrary, it is th.e stand of the
0
States as well as Union of India that the directions issued by
+ this Court are being strictly adhered to. The parameters and
norms have been specified and the industries using such raw
materials are being constantly watched, in relation to all the
functions of the factory, specially keeping in view the E
environment and health status of the workers and nearby
residents. Even subsequent to the filing of the present petition,
the petitioner has not put in any effort to seriously rebut the
averments made in various affidavits filed by the States.

11. In Jayjit Ganguly v. Union oflndia, [CWP No. 412 of F
2002 decided on 15th December 2004], a Division Bench of
the ealcutta High Court also noticed that there is no dispute
that asbestos fibre is hazardous to health and continuous
exposure to certain types of such fibre can also prove to be fatal
as it does not dissolve and the same is so thin that it can be G
•~ inhaled and deposited in lungs. While noticing these facts, the
Court referred to the judgment of this Court in the case of
Consumer Education and Research Centre (supra) and the
report of the Committee appointed ·by the Union of India to
cond.uct study of asbestos fibre products. Relying upon the H
914 SUPREME COURT REPORTS [2011] 1 S.C.R.

A Committee's report, the Court noticed that there was no data
available to demonstrate as to what is the ratio of death directly
attributable to asbestos fibre in relation to the products made
available to the consumers in India. The Court, while dismissing
. the Writ Petition held as under:
B
"During the course of hearing we came to learn that in
2001 yet another Committee was constituted by the Union
of India through the Ministry of Environment for the purpose ,,...
of devising the method of clearance for new or expansion
of asbestos based products and to evolve a policy strategy
c to deal with use of asbestos. We are told that the
suggestions given by the said Committee have
implemented by providing stringent emission norms in
terms of the Environment Protection Act, 1986 and work
zone standards under the Factories Act, 1948. Therefore,
D it appears to us that the said committee too was involved
with the matters pertaining to mining and manufacture of +
asbestos fibre and had no occasion to deal with the
hazards of user of products manufactured ~ram asbestos
fibre. In such situation, we do not think that it would be
E appropriate for us to issue any direction as has been
prayed for in the instant writ petition for we are unable to
weigh the advantages of having asbestos based products
and not having the same, in the absence of appropriate
datas therefore. One thing, however, is clear th~t a large
F number of small scale industries which are normally labour
incentive industries are depending on asbestos as their
raw material for manufacture of their end product.• \.
12. Once the matter has been dealt with and pronounced
upon by this Court by giving a detailed judgment containing
G -....~
directions, we see no reason for filing the present petition.
However, since the Petition has been pending for a
considerable time before this Court, we will prefer to discuss
the merits thereof. As already noticed, there is no law banning
the use of asbestos in various manufacturing processes
H
KALYANESHWARI v. UNION OF INDIA'& ORS. 915
[SWATANTER KUMAR, J.]

despite its adverse effects on human health'. It is not for this A
Court to legislate and ban an activity under relevant laws. Every
factory using or manufacturing asbestos, obtains a licence
under the Factories Act as well as permission from the
corppetent authorities including permission under the
Environmental Laws.. Once all the laws in force have been B
complied with and directions of this Court as contained in the
· case of Consumer Education and Research Centre (supra)
are carried out in their true spirit, we see no reason as to why
·this Court, in exercise of its extraordinary jurisdiction under
Article 32 of the Constitution, should ben such an activity when c
admittedly large number of families are dependent upon such
processes. What has to be ensured is that proper precautions
are taken. The Court had already made ILO guidelines as one
of the safety measures to be complied with by the industries
and it is expected of each State Government and the Union
0
Government to ensure safe and controlled use of asbestos.
+ What is required is better supervision and regulatory control
rather than banning-of the activity. Lack of specific data as well
as vague averments in the Writ Petition amongst others are the
grounds on which we should decline to pass the mandamus
prayed for. The affidavits filed by the official respondents, E
including R'espondent No. 37, specifically point out 'safe and.·
controll~d' use of asbestos in manufacturing processes. The
prayer with regard to constitution of a committee comprising
of specific persons is, again, not a matter that falls within the
realm of jurisdiction of this Court. It is for the expert bodies in F
the concerned Ministries which should regulate proper
measures in this regard to ensure proper utilization of asbestos
and raw materials in relation to various manufacturing activities,
if they are being carried on in accordance with law and without
endangering the life of the people. G

13. It has been averred in one of the affidavits filed by the
petitioner itself that the Government had introduced the White
Asbestos (Ban on Use and Import) Bill, 2009 (hereinafter
referred to as, 'the Bill'), which is pending in the Upper House. H
I
916 SUPREME COURT REPORTS [2011] 1 S.C.R.

'
A Thus, there could be no doubt that it is a matter )Nhich squarely
falls in the domain of the legislature and the l~gislature in its
wisdom has taken steps in the direction of enacting necessary
law. Issuance of any direction or formulation of any further policy
by this Court will obviously be a futile exercise. There could
B hardly be any justification for banning, completely or partially,
of the activity of manufacturing of asbestos and allied products
in face of the above admitted position.

14. In the matter relating to secondary exposure of workers _,.
to asbestos, though the grounds have been taken in the Writ
C Petition without any factual basis, again in the Rejoinder filed
to the counter affidavit of respondent No.37, this issue has been
raised by the petitioner in detail. In the earlier judgment of this
Court in the case of Consumer Education and Research
Centre (supra), hazards arising out of primary use of asbestos
D were primarily dealt wit~. but certainly secondary exposure also
needs to be examined by the Court. In that judgment, the Court +
had noticed that it would, thus, be clear that diseases occurred
wherever the exposure to the toxic or carcinogenic agent
occurs, regardless of the country, type of industry, job title, job
E assignment or location of exposure. The diseases will follow
the trail of the exposure and extend the chain of the
carcinogenic risk beyond the work place. In that judgment, the
Court had also directed that a review by the Union and the
States shall be made after every ten years and also as and
F when the ILO gives 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 vide its resolution of
2006 adopted in the 95th session of the International Labour
G Conference. It introduced a ban on all mining, manufacture,
recycling and use of all forms of asbestos. As already noticed,
serious doubts have been raised as to whether 'controlled use'
can be effectively implemented even with regard to secondary
exposure. These are circumstances which fully require the
H concerned quarters/authorities in the Government of India as
KALYANESHWARI v. UNION OF INDIA & ORS. 917
[SWATANTER KUMAR, J.]
well as the State Governments to examine/review the matter A
""· ~
in accordance with law, objectively, to achieve the greater health
care of the poor strata of the country who are directly or
indirectly engaged in mining or manufacturing activities of
asbestos and/or allied products.
B
1,5. As already noticed above, the Government has already
presented the Bill in Rajya Sabha. The statement of objects and
reasons of this Bill specifically notices that the white asbestos
is highly carcinogenic and it has been so reported by the World
Health Organisation. In India, it is imported without any
restriction while even its domestic use is not preferred by the
c
exporting countries. Canada and Russia are the biggest
exporters of white asbestos. In 2007, Canada exported 95%
of the white asbestos, it mined out of which 43% was shipped
to India. In view of these facts, there is an urgent need for a
total ban on the import and use of white asbestos and promote D
the use of alternative materials. The Bill is yet to be passed but
it is clearly demonstrated that the Government is required to
take effective steps to prevent hazardous impact· of use of
asbestos.
E
· 16. In light of the above discussion, we do not see any
reason to grant any of the prayers made in the Writ Petition
except to the extent that we would issue the following directions
---..
while disposing of the Writ Petition:
F
a. Ministry of Labour in the Union of India and
Department of Industries and Labour in all the State
Government shall ensure that the directions
contained in the judgment of this Court in the case
of Consumer Education and Research Centre
(supra) are strictly adhered to; G
'r~

b. In terms of the above judgment of this Court as welt
as reasons stated in this judgment, we hereby
direct the Union of India and the States to review
safeguards in relation to primary as well as H
918 SUPREME COURT REPORTS [2011] 1 S.C.R.
.....

A secondary exposure to asbestos keeping in mind ~
the information supplied by the respective States ...._
in furtherance to the earlier judgment as well as the
fresh resolution ·passed by the ILO. Upon such
review, further directions, consistent with law, shall
B be issued within a perio(:I of six months from the
date of passing of this order;

c. Further we direct that if Union of India considers it
proper and in public interest, after consulting the
States where there are large number of asbestos
c industries in existence, it should constitute a
regulatory body to exercise proper control and
supervision over manufacturing of asbestos
activities while ensuring due regard to the aspect
of health care of the workmen involved in such
D activity. It may even constitute a Committee of such
experts as it may deem appropriate to effectively +
prevent and control its hazardous effects on the
health of the workmen;

E d. The concerned authorities under the provisions of
Environment (Protection) Act, 1986 should en.sure
that all the appropriate and protective steps to meet
the specified standards are taken by the industry
before or at the time of issuance of environmental
·F clearance.

17. H<;>wever, we find that it is imperative for the Court to
issue the above direction's in order to strike a balance between
the health hazards caused by this activity on the one hand and
ground reality that· a large number of families, all over the
G country, are dependent for their livelihood on this activity, on the
r•
other. We certainly are not entering into th.e arena of legislature
and are passing above directions in furtherance to the law laid
down by this Court which, in terms of Article 141 of the
Constitution, is binding on all concerned and to ensure effective
H and timely implementation of the provisions of the Environment
KALYANESHWARI v. UNION OF INDIA & ORS. 919
[SWATANTER KUMAR, J.]

(Protection) Act. These directions must be read and construed A
--': in comity with. the proposed legislation and are in no way
detrimental to the same.

18. Before parting with this file we have to deal with one
of the main objections raised by the respondents, as noticed B
above, particulai-ly, Respondent No. 37 that the present petition
is a result of business rivalry and has been filed by the petitioner
at the behest of other industries and the entire Writ Petition
~
lacks bona fide and is complete abuse of process of law. The
petitioner NGO claims to be a registered body under the
Societies Registration Act and non-profit organization, inter
c
alia, working for protection of the environment and other public
welfare activities. It also aims at protecting various interests of
the common man particularly those who have no means and/
or access for redressal of their grievances. It is concerned
about the health hazards to workmen resulting from D
~ manufacture and use of asbestos and, thus, it prays for
complete ban on such activity. As already noticed, this petition
was defended by different respondents i.e. the State
Government, Union of India and Association of Asbestos
Cement Product Manufacturers. In light of this objection and the E
material placed on record, a Bench of this Court passed the
following Order on 13th August, 201 O :
-,..
"Kalyaneshwari has filed this writ petition seeking
imposition of ban and payment of compensation to the F
industrial workers working in the manufacture, import and
use of asbestos. This petition was filed as far back on 5th
May, 2004. In the case of B.K. Sharma v. Union of India
the Gujarat High Court vide order dated 9th December,
· 2004, has made the following observation :
G
"36. As far as preliminary objections raised against
the maintainability of the petitions. are concerned,
we could have thrown out the first petition, being
Special Civil Application No. 14460 of 2004 but for
the other two petitions on the same subject matter. H
920 SUPREME COURT REPORTS · [2011] 1 S.C.R. •
A Normally, multiple petitions under Public Interest
Litigation, on the same subject matter are not
.....
entertained. However, the first petition does not
seem to have been filed bonafide or for real and
genuine public cause and it does not inspire our
8 confidence to treat it as Public Interest Litigation in
real sense. The resolution dated 15th July, 2004
was produced at the belated stage. The
relationship between some of the office-bearers
~
and members of the Board of Trustees with the
c personnel of Electro Steel Castings Limited is
difficult to be overlooked. It, therefore, leads us to
believe that the first petition is a sponsored petition.
In ASHOK KUMAR PANDEY v. STATE OF WEST
BENGAL and Ors. (supra), the Hon'ble Supreme
Court, in no uncertain terms, has observed that
D
"when there is material to show that a petition styled
as a public interest litigation is nothing but a +
camouflage to foster personal disputes, said
petition is to be thrown out." Since there is business
rivalry between the said ESCL and the Respondent
E No. 5 and since the said ESCL is in the habit of
sponsoring such petitions, we do not concur with the
view of the present petitioners that there is a real
and genuine public interest involved in the litigation . .....
It is difficult to believe that they have approached
F this court to wipe out violation of fundamental rights
and genuine infraction of statutory provisions, but
not for personal gain or private profit or political
motive or any oblique consideration, as observed
by the Hon'ble Supreme Court in that case."
G
The above observation of the High Court indicates ~

the relationship between the NGOs and the Steel
Company, whose name is quoted hereinabove.

Shri Colin Gonsalves, learned senior counsel
H
KALYANESHWARI v. UNION OF INDIA & ORS. 921
[SWATANTER KUMAR, J.]
appearing on behalf of the petitioner herein all A
J: throughout .these proceedings till today, fairly states
that he has looked into the matter and it would not
be possible for him to appear on behalf of the
petitioner in this matter any further. He further states
that Advocate-on-rec.ord has also addressed a B
letter stating that she would not like to represent
Kalyaneshwari (NGO). In the circumstances, the
+ Registry is directed to issue notice to the petitioner
informing them of the next date of hearing. The
matter is made returnable on 27th August, 2010. c
In the meantime, we would like to know from the

-. Central Government as to whether petitioner-NGO
is on the list of NGOs maintained by the Union of
India and whether the petitioner-NGO is funded by
the Central Government? We request Mr. H.P.
D
Raval, learned Add)tional Solicitor General to assist
u8s as amicus in the matter. The Advocate-on-
Record is given discharge. We appreciate the
stand taken by Shri Colin Gonsalves in taking a fair
stand in the case.
E
The Advocate-on-Record is given discharge. We
appreciate the stand taken by Shri Colin Gonsalves
~· in taking a fair stand in the case."

19. After passing of that order the petitioner NGO was F
further directed to file an affidavit explaining its conduct
highlighted by Gujarat High Court in the case of B.K. Sharma
(supra). In furtherance to the direction of this Court dated 27th
August, 2010, B.K. Sharma, claiming to be working as
Secretary of the petitioner, filed a detailed affidavit. In this
G
--~ affidavit, besides reiterating some of the averments made in
the Writ Petition, it has been specifically averred that 'on the
advice of the High Court all the three Writ Petitions were
/withdrawr:i so as to make proper representation to the Central
Government to consider the objections in the petition.' Specific
H
922 SUPREME COURT REPORTS [2011] 1 S.C.R.

A dispute has also been raised and it is denied that one.member
of the Society, namely, Shanti Swaroop has worked with the
Steel Company ESCL and that only consultancy services were
provided by him on part time basis and comparison of his
services is sought to be made with that of lawyers and
B Chartered Accounts working for the company. In the affidavit
filed by the petitioner in furtherance to the order of this Court
dated 27th August, 2010, it is stated that B.K. Sharma was
neither working as Advisor/Consultant of ESCL between
November-December 2003 to March-April 2004 nor was he
c looking after the marketing activity of ESCL in Madhya
Pradesh. It is stated that during this period ·he was working in
Rajasthan on an important project. First, it is nowhere denied
that B.K. Sharma had no connection of any kind with ESCL at
any point of time; second, even in the affidavit, necessary
D particulars have not been given of the company or the project
for which he was working in Rajasthan. Still attempt has been
made to put the blame on the Gujarat High Court by stating that +
the Court had not appreciated the facts correctly. Other NGOs
had also filed some writ petitions and as such the petition by
the petitioner was bona fide. It is also averred, 'it is pertinent
·E to mention that neither the Court nor the respondent felt the
need for substantiating the allegations with evidence, which_is
contrary to the settled proposition of law that a person making

F
--
an allegation needs to prove it'.
.
20. Three w'rff petitions had been filed in the Gujarat High
Court, including one by B.K. Sharma acting on behalf of the
petitioner NGO, which was petitioner No. 2, in that Writ Petition,
seeking direction against the authorities· to take appropriate
preventive steps and measures against the Respondent No.5
G M/s. Saw Pipes Ltd. in proceeding further with the construction
activities of Respondent No.S's project comprising Blast r ~
Furnace and Ductile Iron/Cast Iron pipe, fittings casting
manufacturing plant and foundry near Mundra, Kutch with further
prayer that they be stopped from carrying on any activity and
H that the factory constructed should be demolished. These
KALYANESHWARI v. UNION OF INDIA & ORS. 923
[SWATANTER KUMAR, J.]

petitions were heard at great length by a Bench of Gujarat High A
k Court. Ultimately, the Court recorded its findings in paragraphs
7.2, 36 & 37 of the judgment. In these findings, the Court
,noticed that earlier a PIL had been filed in the Madras High
Court, allegedly sponsored by ESCL, against a company
manufact1,1ring the same articles. Later on thatcompany had B
been taken over by ESCL and the present petition is also filed
as a result of business rivalry. The Court, prima facie, recorded
..._ the finding that there is close association of B.K. Sharma with
the rival company of ESCL and one Shanti Swaroop was also
appointed as consultant for the NGO, who was earlier c
ass,ociated with ESCL. The Court finally recorded the
conclusion that the petition was mala fide and was a result of
collusion between the steel company and the NGO.

21. Another aspect on which the High Court recorded its
adverse finding against the petitioner is that the petitioner had D
+ submitted some official documents, including noting on
Government files, which were not published documents and to
which the petitioner had no access. Despite directions of the
C.?_~rt. the p_e!i.!!_~n~~ 11.ad fa_ile?:J..o disclose the source of
-pt>ssession of those documents. The matter did not end there E
as, when the true copies of the sa'iCl -n<~ting/documents were
..,._ produced before the Court by the Department, it came to light
that certain paragraphs/portions of the notings etc. had been
omitted in the documents filed by the petitioner and certified
as true copies. From the record before us, it is clear that B.K. F
Sharma as well as Shanti Swarup h~d professional
commitments in one form or the other either on permanent or
temporary basis with ESCL. It has been stated in the affidavit
filed by B.K. Sharma that three writ petitions were withdrawn
-,.,.,..... on the advice of the Gujarat High Court which is hardly true. The G
Court had only granted liberty, while dismissing the writ
petitions as withdrawn, to approach the Central Government.
The Central Government had again declined to accept the
representations made by the petitioners r~sulting in filing of writ
petitions for the second time which culminated in the final H
924 SUPREME COURT REPORTS [2011] 1 S.C.R.

A judgment by the Gujarat High Court in the case of B.K. Shanna
(supra).

Above was the conduct of the petitioner before the Gujarat
High Court and we hardly find any improvement in its behaviour
before this Court in the present litigation. Even before this
8
Court, a judgment which has attained finality on all factual matrix
and even otherwise, is attempted to be brushed aside by
making irresponsible statements, inter alia, that the Gujarat
High Court had failed to apply its mind. The judgment of the
C Gujarat High Court dismissing all the three writ petitions was
challenged before this Court by way of filing Special Leave
Petitions which came to be dismissed vide order dated 28th
January, 2005. Thus, the judgment of the Gujarat High Court
for all intent and purposes attained finality and we do not think
that legality or correctness of the judgment can now be
D questioned in these proceedings. It is of no use and help to the
petitioners now to claim that no proof was produced before that +
Court to establish the allegations that the petition was filed at
the behest of ESCL. They were writ petitioners and the Court,
after hearing the parties at length and perusing the record, has
E recorded the above findings which, in any case, do not suffer
from any infirmity, much less, illegality so as to be disregarded
by this Court. We are constrained to say that the findings
recorded by the Gujarat High Court reflect the picture of the
petitioner which certainly invites judicial chastisement and
F appropriate orders.

·22. During the hearing of this Writ Petition, the Court had
called upli?n the learned Addi. Solicitor General to find out from
the concerned Ministries whether the petitioner NGO was a
G registered NGO and whether it was granted any financial
assistance or grant-in-aid. However, vide letter dated 26th
August, 2010, copy of which has been placed on record by the
learned Addi. Solicitor General, it has been informed that the
petitioner NGO is not recognized by any Ministry and no
financial assistance has been sanctioned to it.
H
KALYANESHWARI v. UNION OF INDIA & ORS. 925
[SWATANTER KUMAR, J.]

23. Another aspect, which has still not been clarified by the A
* petitioner, is how the present petition came to be filed in face
of the judgment of this Court in the case of Consumer
Education and Research Centre (supra) and, in fact, what was
the need to file it. It cannot be ignored that valuable time of this
Court is consumed in dealing with such public interest litigations B
which are filed without proper study and data and merely on
some reference to very few workmen working in an industry and
~.
without projecting any requirement at the national level
demanding the attention of this Court in treating it as a national
problem. The Kerala State Human Rights Commission vide c
order dated 31st January, 2009 has also dealt with the same
problem which does not even find a mention in the present
petition and which the petitioner is expected to know as it claims
to be working for the common man in this behalf. Every litigant,
who approaches the Court, owes a duty to approach the Court D
-t with clean hands and disclose complete facts. A petition which
lacks bona fide and is intended to settle business rivalry or is
aimed at taking over of a company or augmenting the business
of another interested company at the cost of closing business
of other units in the garb of PIL would be nothing but abuse of E
the process of law.

,..,., 24. Presumably, and as contended, the direct impact of
banning of activities of mining/manufacturing relating to
asbestos shall result in increase in demand of cast iron/ductile
iron production as they are some of the suitable substitutes for F
asbestos. It is not in dispute that ESCL is one of the largest
manufacturer of iron and allied products in India and there was
a professional and/or other connections between ESCL and .
B.K. Sharma on the one hand and B.K. Sharma and Shanti
·~·"1 Swarup on the other who, admittedly at present, is involved with G
the activities of NGO for a considerable time. Thus, it would be
a reasonable conclusion to draw that the Writ Petition has been
hardly filed in public interest but is a private interest litigation
to give rise to business opportunities in a particular field.
H
926 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 25. In Ashok Kumar Pandey v. State of West Bengal
[(2004) 3 SCC 349], this Court took a cautious approach while
entertaining public interest litigations and held that public
interest litigation is a weapon, which has to be used with great
care and circumspection. The judiciary has to· be extremely
B careful to see that no ugly private malice, vested interest and/
or seeking publicity l~rks . behind the beautiful veil of public
interest. It is to be used as··an effective weapon in the armoury
of law for delivering social justice to citizens. The attractive ~
brand name of public interest litigation should not be used for
c suspicious products of mischief. In the case of Rajiv Ranjan
Singh La/an v. Union of India [(2006) 6 SCC 613], this Court
reiterated the principle and even held that howsoever genuine
a case brought before a Court by a public interest litigant may
be, the Court has to decline its examination at the behest of a
person who, in fact, is not a public interest litigant and whose
0
bona fides and credentials are in doubt; no trust can be placed
by .the Court on a .mala fide applicant in a public interest
litigation. The Courts, while exercising jurisdiction and deciding
a public interest litigation, has to take great care, primarily, for
the reason that wide jurisdiction should not become a source
E of abuse·of process of law by disgruntled litigant. Such careful
exercise is also necessary to ensure that'the litigation is
genuine, not motivated by extraneous co3siderations and
imposes an obligation upon the litigant to disclose true facts
and approach the Court with clean hands. Thus, it is imperative
F that the petitions, which are bona fide and in public interest
alone, be entertained in this category. Abuse of process of law
is essentially opposed to any public interest. One, who abuses
the process· of law, cannot be said to serve any public interest,
much less, a larger public interest. In the name of the poor let
G the rich litigant not achieve their end of becoming richer by
instituting such set of petitions to ban such activities. Besides
the fact that the present petition lacks bona fides, it is also
obvious that the petitioner though had prayed for complete ban
on all mining and manufacturing activities but had hardly made
H any study or prepared statistical data in that regard. It only made
KALYANESHWARI v. UNION OF INDIA & OR~. 927
[SWATANTER KUMAR, J.]

.. reference to certain studies in foreign countries. The petitic,mer, A
claiming to be an organization involved in the good of the
common man, ought to have taken greater pains to state
essential facts supported by documents in relation to Indian
environment.
B
26. The document referred to as Ex.PS in paragraph 36
of the Writ Petition is probably the only document which
-~
allegedly records the conditions of a few workmen in India and
1

contains the names of a few docto rs and workers. This
document is neither s,igned by anybody nor does it give
address of any workman or the industry/factory where such c
workman is working. It is expected of the petitioner to have
made proper efforts in collection of such material before it
moved this Court to treat this problem at the national level and
had spent its judicial time. All the States in the country have been
issued notices of this petition and they have denied the D
allegations. It was incumbent upon the petitioner thus to at least
substantiate the averments in the petition by some cogent and
· documentary evidence actually related to the working
conditions of the workmen in various factories in different
States. In our view, the petitioner has miserably failed to E
discharge this onus.
, 27. The conduct of the petitioner before the Gujarat High
Court appears to be contemptuous and certainly is an abuse
of the process of the court in terms of the finding recorded by F
that Court which has attained finality. That petition was instituted
at the behest of ESCL, while the present petition also does not
demonstrate that intention of the petitioner is to achieve public
interest. This Court in Raunaq International Ltd. v. /.V.R.
Constructions Ltd. [{1999) 1 SCC 492) has clearly stated that
.., ~ G
public interest litigation should be bona fide for public good and
nor merely a cloak for attaining private ends. The Court clearly .
enunciated the principle that previous record of public service
of the litigant can also be examined by the Court. To enable
the Court to strike a balance between two conflicting interests,
H
''
"·

928 SUPREME COURT REPORTS [2011] 1 S.C.R.

A it is important that public mischief is prevented. It appears to
have been moved again at the behest of the same company ·i,_

and, in any case, to ultimately cause material and business
gains to that or such other companies. Thus, the present petition
lacks bona fide, is an abuse of the process of the Court and
B has been filed as a proxy litigation for the purpose of achieving
private interest. This Court cannot permit such practice to
prevail and it needs to be deterred at the very threshold.
•
28. In view of the preceding discussion in detail and its
)
analysis, we perceive no merit in this petition, as far as prayer
c of the petitioner for banning of mining and manufacturing
activities in asbestos or its allied products is concerned. While
rejecting that prayer, we dispose of this petition with the above
directions.

D 29. Keeping in view the conduct of the petitioner,
particularly, -B.K. Sharma, we hereby issue notice to him as well
.,
as the petitioner to show cause why proceedings under the
Contempt of Courts Act, 1971 be not initiated against.them and/
or in addition/alternative, why exemplary cost be not imposed
E upon them. Further, we also call upon the petitioner to show
cause why the Registrar, 1
Government of NCT, Delhi be not
directed to take action against them in accordance with law.
~

IA No.9 of 2010 in WP {C} No.260 of 2004

F We find no reason to implead the applicant as a party
respondent in the present petition at this stage. The IA for
impleadment is dismissed.

N.J. Matters diposed of.
1' r