Coal India Freedom of Speech
Ham-fisted Indian agencies target acclaimed lawyer over Adani cases
May 18, 2023
'Heavy handed': Indian government agencies have been condemned for targeting an acclaimed environmental lawyer over cases involving Adani. Image courtesy PixFuel

Updated 5 July 2023

Human-rights advocates and the editorial of a major Indian newspaper have condemned the heavy-handedness of law-enforcement agencies targeting an acclaimed environmental lawyer. Using the same means by which they shut down the Indian operations of Greenpeace and Amnesty International, the agencies have accused Ritwick Dutta of violating foreign-exchange rules. The award-winning lawyer has been accused of engineering litigation against various Adani operations, and therefore ‘denying energy security’ to India. Dutta and the public-interest trust he founded have denied any wrongdoing and pointed to glaring factual errors in the agencies’ reports. 

Acclaimed Indian lawyer, Ritwick Dutta, who has provided legal counsel to petitioners in environmental litigations that were ruled against the Adani Group, has been booked for alleged violation of ‘foreign exchange’ laws. A case has been registered against Dutta by the Central Bureau of Investigation (CBI), India’s premier police investigative agency, alleging that he routed funds from abroad for ‘stalling coal projects in India’.

Acclaimed lawyer Ritwick Dutta - targeted by ham-fisted Indian law-enforcement agencies over cases against Adani operations. Image courtesy Scroll.In

Dutta is the founder and managing trustee of the Legal Initiative for Forest & Environment (LIFE), a public interest environmental law trust, based in New Delhi. LIFE is a co-accused in the First Information Report (FIR) registered by the CBI against Dutta on 19 April 2023 for alleged violation of India’s Foreign Contribution (Regulation) Act, 2010.

The FIR was based on a report of the Central Board of Direct Taxes (CBDT), an agency overseeing administration of tax laws in India for the Union Ministry of Finance, following raids on Dutta’s office in New Delhi on 7 September 2022. The CBDT sent its report to the Union Home Ministry, headed by Prime Minister Narendra Modi’s close confidante Amit Shah, for action. The contents of this confidential report have been reported by noted English dailies and news websites in India.

Following the registration of the FIR, the prominent daily English-language newspaper, the Hindu, carried an editorial saying that the CBI seemed to have been ‘overzealous’ in registering the case.

‘Using legal remedies to limit the industrial exploitation of nature and ensuring just compensation is at the core of a civilized democracy; and efforts at undermining such a fundamental compact bodes ill for India,’ stated the Hindu’s editorial.

During his long legal career, Dutta has represented petitioners in scores of litigations pertaining to environmental violations by entities in both the public and private sectors. But in the confidential CBDT report, the only private business entity mentioned is the Adani Group.

The only private business entity mentioned in the 34-page government report is the Adani Group.

In the 34-page report, the Adani name features prominently in two places. The first is in reference to a case filed by a farmers’ collective in the western state of Gujarat against the potential adverse ecological impacts of a copper refinery plant being established in Kutch district.

‘As per information available in public domain, Kheti Vikas Seva Trust is involved in filing Public Interest Litigation against Government of Gujarat and Adani Enterprises in Gujarat. Shri. Ritwick Dutta appeared on behalf of Kheti Vikas Seva Trust (based in Gujaraj (sic.) formed by local farmers). On analysis of information available on public domain, it appears that Shri. Ritwick Dutta is involved in agitating local farmers against government policy in Gujarat Kheti Vikas Seva Trust Vs Adani Enterprises Ltd,’ states the report.

Scrutiny of orders of the National Green Tribunal – India’s premier environmental court in which the copper-refinery case against the Adani Group was filed in August 2020 – shows that Dutta himself never appeared in the hearings on behalf of the farmers’ collective. The orders show that Dutta’s colleague, Rahul Choudhary, was the farmers’ representative in court hearings.

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The report also accuses Dutta of using the media to criticise the government. It further states: ‘He appears to be involved in agitating local farmers against industrialist and industrial policy of Government’.

But office bearers of the collective, Gujarat Kheti Vikas Seva Trust, say that Dutta has never visited the project site in Kutch or its adjoining areas even though the report accuses him of ‘agitating local farmers’.

‘Dutta has not agitated local farmers. Neither Dutta nor Choudhary has ever visited the project site in the first place. We had ourselves met these lawyers to represent us in court. We have been fighting against environmental violations by industrial projects for a very long time. The Adani Group is not the only entity against which we have raised environmental issues,’ the trust’s president, Naran Bharu Gadhvi, told this correspondent.

Dutta has also been accused in the report of harming the economic interests of India outside the country’s borders in the context of the Adani Group’s business activities in Australia. The report refers to an alleged email exchange between Dutta and a representative of the US-based non-profit public-interest environmental law organization, Earth Justice, about the status of litigations against various industrial projects in India.

The report alleges: ‘ … in the same email, they were also discussing projects of Indian entities in foreign jurisdictions which can be challenged there. They mentioned the example of activities of Adani in Australia. It appears from this that they were planning to target Indian entities undertaking projects outside India. Such litigations lead to delay in projects impacting public interest by denying energy security to citizens of the nation. Further, it is also impacting economic interests of nation outside geographical boundaries of India’.

The Adani Group has several enterprises in Australia. It operates the Carmichael coal mine, an associated railway, and the Abbot Point Terminal coal port in the state of Queensland. It owns a solar farm, Rugby Run, near Moranbah also in Queensland. This installation was officially commissioned in October 2019; commercial negotiations are underway for another solar project in Whyalla in South Australia.

Over the past year, the Adani Group has incurred financial losses after losing at least two environmental litigations in the Supreme Court of India. Dutta, in his professional capacity as a lawyer, had appeared in court on behalf of the petitioners in both these litigations. AdaniWatch has published detailed accounts of these cases.

On 14 March 2022, the Supreme Court of India dismissed an appeal by Adani Group subsidiary Raipur Energen Limited, the firm that owns Talabira I coal block in the eastern Indian state of Odisha, against the penalty order of Rs 2.5 crore (US $327,000), imposed by the National Green Tribunal, on account of damages caused to the environment through indiscriminate dumping of overburden. This particular order, issued by a division bench of India’s apex court comprising Justice Dhananjaya Y Chandrachud (at present the Chief Justice of India) and Justice Surya Kant, paved the way for payment of Rs 10 crore in total (it also includes the Rs 7.5 crore, or US $980,000 approximately, levied on Hindalco Industries Limited of the Aditya Birla Group which earlier owned Raipur Energen Limited).

A pile of spoil from Talabira I coal mine (now owned by the Adani Group) encroaches on to neighbouring farmland, resulting in a large fine to the company concerned.

On 1 February 2023, when Adani Group was witnessing a meltdown of its stock prices, the Supreme Court of India dealt the group another blow by refusing to annul an order to dismantle illegal structures in a coastal zone in the southern state of Tamil Nadu. The apex court ordered that five huge oil tanks owned by an Adani-backed firm, KTV Oil Mills Private Limited, on the outskirts of Chennai be demolished within a period of six months on account of not confirming to regulations governing the country’s coastal areas. The order, issued by a three-judge bench of the apex court headed by Justice KM Joseph also issued a penalty of approximately US $30,000.

'Remove it within six months.' The illegally constructed storage tank for edible oils established by KTV, part-owned by the Adani Group.

In September 2020, the tribunal ordered the dismantling of the tanks after arriving at its decision that post facto approval had been granted to the tanks by the Union Ministry of Environment, Forests & Climate Change of India in violation of the country’s law. This case showed how the environment ministry under the Modi government had not only amended rules to regularise post facto approvals under India’s Coastal Regulation Zone (CRZ) Notification, 2011, but had also subsequently written to the Adani-backed firm inviting it to apply for approval within the moratorium period.

The petitions had been filed, respectively, by an Odisha-based activist, Manbodh Biswal, and a Tamil Nadu-based fish workers’ forum. Dutta had represented these petitioners in court but was not a litigant himself. Office-bearers of LIFE claim that, as a matter of policy, the trust has never been a litigant in any case.

The FIR against Dutta has been registered under Section 35 of the Foreign Contribution (Regulation) Act, 2010 – read with other sections of the Act – which envisages a punishment of five years’ imprisonment (or a penalty or both) for those found guilty of utilising foreign currency in a manner that is detrimental to the national interest.

The FIR alleges: ‘The main allegation is that Ritwick Dutta received Rs 41 lac (sic.) as Foreign Contribution in 2013-14 and thereafter he created LIFE Proprietorship which received Rs 22 crore from Earth Justice USA as professional receipt and it is alleged that LIFE and EJ are in the process of stalling coal projects in India. It is further alleged that EJ and Sandler Foundation are trying to take down India’s existing or proposed coal projects and ECF (European Climate) is routing $120,000 via EJ to LIFE for litigation. They have further alleged that the association has transferred Foreign Contribution to NGOs which is in violation of the Section 7 of FCRA, 2010’.

A section of the confidential report lists 14 different NGOs that have allegedly received foreign contributions through LIFE in the form of ‘sub-grants’. This list includes the NGO Akhil Bharatiya Vanvasi Kalyan Ashram as well, which is affiliated to the BJP’s ideological precursor, the Rashtriya Swayamsevak Sangh (RSS). Reportedly, the majority of the 14 entities listed in this section have independent licences of their own under the Foreign Contribution (Regulation) Act, 2010 to directly receive financial contributions from abroad. The section also accuses LIFE of bypassing foreign-exchange laws in making payments to vendors who undertake work for it to organise workshops and training programs in various parts of the country. The report states that LIFE makes payments to vendors ‘in capacity building such as hotels, travel agents, etc’ without explaining how this violates foreign-exchange laws.

In response to the above paragraph, the Akhil Bharatiya Vanvasi Kalyan Ashram has made the following statement: 'News reports that foreign funds were transferred to Akhil Bharatiya Vanvasi Kalyan Ashram via Ritwick Dutta and/or LIFE are completely false and baseless. Kalyan Ashram rebuts these allegations and clarifies that there have never been financial transactions of any nature between itself and Ritwick Dutta and/or LIFE. Kalyan Ashram has neither obtained foreign funds nor funds of any other nature from Ritwick Dutta and/or LIFE.'

In accordance with the provisions of the Foreign Contribution (Regulation) Act, 2010, licences for accepting foreign exchange are provided by the central government only to those organisations that have a ‘definite cultural, economic, educational, religious or social programme’ (see FAQ 5 of document). The CBDT has alleged in its report that though LIFE has been entitled to receive foreign contributions for ‘social’ work, the funds are being utilised for ‘environmental research’ which it has deemed a deviation from the rules.

Further, perusal of various environmental litigations in which Dutta has represented the petitioners shows that not a single coal project has been stalled in any of the cases in the past ten years, despite the claim in the FIR that ‘LIFE and EJ are in the process of stalling coal projects in India’.

The raids upon Dutta’s organisation LIFE came less than a year after it was conferred with the Right Livelihood Award in Sweden. This award, which is often dubbed as the ‘Alternative Nobel’, was instituted in 1980 by German-Swedish philanthropist Jakob von Uexkull. The award statement for the year 2021 said that LIFE was selected for this honor ‘for its grassroots approach of empowering vulnerable communities to protect their livelihoods and claim their right to a clean environment’.

The legal trust Dutta helped found was conferred with the Right Livelihood award in 2021.

The award statement further said: ‘LIFE has fought against some of India’s most significant environmental threats including helping local communities stop the construction of a large-scale bauxite mine in the eastern state of Odisha and halt a hydro-power project in the state of Arunachal Pradesh.’

Following the registration of the FIR, a statement was issued on behalf of LIFE through its Twitter handle, saying that it has never carried out any activity in violation of the laws of India: ‘LIFE is committed to the cause of environmental protection, protecting the rights of vulnerable communities and upholding the environmental rule of law. LIFE has not carried out any activity in violation of the laws of India’.

Raids conducted by the income tax department on Dutta’s office on 7 September 2022 coincided with similar raids on other social and philanthropic organisations across the country. Amongst the entities raided by the income-tax department were the New Delhi-based thinktank Centre for Policy Research and the Independent and Public-Spirited Media Foundation (IPSMF), a philanthropic organisation based in the South Indian city of Bengaluru which promotes independent and public-spirited journalism. Raids have also been conducted on the non-profit Oxfam India, which works to support child education and empowerment of women. Oxfam India has also been booked by the CBI for alleged violation of foreign-exchange laws.

After the raids, more than 600 eminent citizens, many of them human-rights advocates, issued a solidarity statement against the high-handedness of the government.

‘ … in the not-too-distant future [the government] will come for us, each one of us,’ they stated in the solidarity statement.