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Legally Explained: Can I get my neighbour’s cell phone tower removed now, after SC applied ‘precautionary principle’

Has the Supreme Court basically just said you can remove cell phone towers because they cause cancer?
Has the Supreme Court basically just said you can remove cell phone towers because they cause cancer?

In a first of its kind, the Supreme Court on 30 March directed the Bharat Sanchar Nigam Limited (BSNL) to deactivate one of its cell phone towers, located in a residential area in Gwalior since 2003, on the mere suspicion by a petitioner that it might have caused the cancer of a resident, working in its vicinity, as first reported by the Times of India.

The cancer patient, who is a domestic help, alleged that he got the disease, Hodgkin’s Lymphoma, due to continuous and prolonged exposure from tower radiation from the BSNL’s cell phone tower, installed on the roof top of an adjoining building, owned by Padam Gupta, at Dal Bazaar, Gwalior.

Yes, it’s confusing in its repercussions, so we try to explain the various issues this landmark interim order poses.

So, has the Supreme Court concluded that cell phone towers emit harmful radiation, which causes cancer?

Well, there has been no conclusion yet. The Court has just begun to hear the petitions before it.

In the interim order, since one of the petitioners, Harish Chand Tiwari, has alleged that he got cancer because he had been exposed to radiation from the BSNL’s cell phone tower, the bench has directed the tower’s deactivation within seven days.

If the petitioner already suffers from cancer, what is the purpose of the SC order?

The order could help the petitioner from avoiding further exposure, and therefore, alleged aggravation of the disease; it can also help others who may be exposed to the alleged radiation, if the tower is not deactivated.

But can the bench direct this acting merely on a suspicion that the cell phone tower might have caused radiation, and therefore, cancer of the petitioner?

The bench appears to have followed the so-called precautionary principle, and directed deactivation.

What is this precautionary principle?

This is a well-known principle in environmental law, which says that there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk.

Such protections can be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result.

But the court has not tried to protect the entire public, just one individual, and directed deactivation of just one tower...

True, but if one individual’s allegation is valid, then there is a possibility that others too may suffer the harmful radiation from the tower; therefore, the court obviously thought it prudent to deactivate just one tower whose harmful radiation has allegedly caused cancer, than wait for others, similarly placed like Tiwari, from coming before it with an identical plea.

The correlation between harmful radiation from the cell phone tower and Tiwari’s cancer is yet to be proved conclusively; but the court apparently thought that the BSNL had so far failed to prove that its radiation is safe, or could not have caused Tiwari’s cancer, as the burden is upon them to show proof under the precautionary principle.

But the hearing of the case has not yet begun, and the cell phone companies may yet come with proof to court to show that the petitioner’s allegation is untrue. Therefore, did the Court issue a hasty interim order?

Again, the precautionary principle would suggest that if there is a likely harm to the public from a policy or an action, until the contrary is proved, it makes sense to make it inactive for the time being.

Will this not open a Pandora’s Box, with more petitioners who might be suffering from similar diseases coming to court seeking deactivation of cell phone towers and compensation?

Well, in Tiwari’s case, the Court has not granted him compensation, although he has asked for it from the BSNL.

There is still a long way to go and battle it out over this issue.

Of course, one has to concede that if others are similarly placed like Tiwari, and a cell phone tower is suspected by them to have caused harmful radiation, resulting in the disease, then the court may now have to step in and direct its deactivation for the time being, until the issues are clearly settled.

What does the deactivation order mean for the telecom companies? Is it not a setback to them?

Yes, whether or not radiation from cell phone towers is harmful has been one of the industry’s biggest potentially cataclysmic events, that they’ve been trying to fight on a scientific and legal front for years globally.

There is no real scientific consensus on whether towers are harmful or not, other than anecdotal reports and a few studies (no doubt in part also, because such studies are discouraged by the telecoms industry).

On top of that, the telecoms companies are just in the middle of preparing to legally fight this specific case.

The Cellular Operators Association of India has filed an intervention application, which has been allowed in the case. The Association has been asked to file a paper book containing various reports and other relevant documents in one volume for the convenience of the court, so that hearing of the matters can be streamlined and expedited.

Is this the opening of a floodgate? Can I get the Supreme Court to remove my tower?

Could potential litigants with allegations similar to that of Tiwari force the removal of a cellphone tower? Maybe.

But, in any such future challenge seeking deactivation of cell phone towers, the Court will clearly search for locus standi of the petitioner - i.e., the petitioner will need to have been affected by the tower in some way - and if there is no such locus, it will not accept the plea, even if Tiwari’s case is cited as precedent.

That said, the Supreme Court order, if it becomes doctrine in some way and is used as precedent by others, is a slippery slope: why should someone who is, for instance, at greater risk of cancer (genetically or by their personal health history) not be allowed to ask for removal of a nearby tower?

Or a school with lots of children?

Somehow it feels as thought the Supreme did not think things through completely.

Are there other petitions being heard along with that of Tiwari?

Yes. One is a PIL, filed by Dr.Naresh Chand Gupta, being represented by the well-known lawyer, Prashant Bhushan, as we had reported at the time.

The second one is an appeal filed by Bhupesh Segal against the verdict of the National Green Tribunal.

Tiwari is represented by Nivedita Sharma and Surushi Mittal.

How did the NGT decide this issue?

Well, the NGT evaded the issue, by holding that radiation from electromagnetic waves resulting from mobile phone towers is not explicitly covered in any of the scheduled Acts to the NGT Act.

“In fact, even under the NGT Act, relevant definition under provisions do not refer to the radiation specifically.”, the NGT judgment in the case said.

The SC interim order to remove cellphone tower

The petition by Harish Chand Tiwari

Photo by Jordan Mowbray

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