|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No.657 of 1995
1 RESEARCH FOUNDATION FOR SCIENCE, … PETITIONER
2 TECHNOLOGY AND NATURAL RESOURCE
3 POLICY
VS.
2 UNION OF INDIA & ORS. …
RESPONDENTS
J U D G M E N T
ALTAMAS KABIR, J.
1. This writ petition has been filed by the Research Foundation for
Science Technology and Natural Resource Policy, through its Director, Ms.
Vandna Shiva, for the following reliefs :
“1. direct the Union of India banning all imports of all
hazardous/toxic wastes;
2. direct amendment of rules in conformity with the BASEL
Convention and Article 21, 47 and 48A of the Constitution as
interpreted by this Court;
3. declare that without adequate protection to the workers and
public and without any provision of sound environment management
of disposal of hazardous/toxic wastes, the Hazardous Wastes
(Management & Handling) Rules, 1989 are violative of Fundamental
Rights and, therefore, unconstitutional;”
On 29th October, 1995, this Court directed notice to issue on the writ
petition and also on the application for stay.
2. The basic grievance of the Writ Petitioner was with regard to the
import of toxic wastes from industrialized countries to India, despite such
wastes being hazardous to the environment and life of the people of this
country. The Writ Petitioner sought to challenge the decision of the
Ministry of Environment and Forests permitting import of toxic wastes in
India under the cover of recycling, which, according to the Petitioner,
made India a dumping ground for toxic wastes. It was alleged that these
decisions were contrary to the provisions of Articles 14 and 21 of the
Constitution and also Article 47, which enjoins a duty on the State to
raise the standards of living and to improve public health. In the writ
petition it was also contended that Article 48A provides that the State
shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country.
3. In the writ petition, Ms. Vandna Shiva, the Director of the
Petitioner Foundation, who is a well-known environmentalist and journalist,
while highlighting some of the tragedies which had occurred on account of
either dumping or release of hazardous and toxic wastes into the
atmosphere, such as the tragedy which took place in the Union Carbide
factory at Bhopal in 1984, referred to the BASEL Convention on the Control
of Transboundary Movements of Hazardous Wastes and their disposal. It was
submitted that an international awareness had been created under the BASEL
Convention against the movement of hazardous wastes and their disposal in
respect whereof the United Nations Environment Programme (UNEP) had
convened a Conference on the Global Convention on the Control of
Transboundary Movements of Hazardous Wastes pursuant to the decision
adopted by the Governing Council of UNEP on 17th June, 1987. The said
Conference met at the European World Trade and Convention Centre, Basel,
from 20th to 22nd March, 1989. India also participated in the Conference.
On the basis of the deliberations of the Committee, the BASEL Convention on
the Control of Transboundary Movements on Hazardous Wastes and their
Disposal was adopted on 22nd March, 1989. It was the grievance of the Writ
Petitioner that since India became a signatory to the BASEL Convention on
22nd September, 1992, it should have amended the definition of “hazardous
wastes”, as provided in Article 3 read with Articles 4.1 and 13 of the said
Convention. It was the further grievance of the Writ Petitioner that India
should have enacted laws in regard to the Transboundary Movement procedures
with regard to hazardous wastes. Some of the relevant provisions of
Article 4 of the aforesaid Convention have been quoted in the writ petition
and are extracted hereinbelow :
1. (a) Parties exercising their right to prohibit the import of
hazardous wastes or other wastes for disposal shall inform the other
parties of their decision pursuant to Article 13.
(b) Parties shall prohibit or shall not permit the export of hazardous
wastes and other wastes to the Parties which have prohibited the
import of such wastes, when notified pursuant to sub-para (a) above.
(c) Parties shall prohibit or shall not permit the export of
hazardous wastes and other wastes if the State of import does not
consent in writing to the specific import, in the case where that
State of import has not prohibited the import of such wastes.
2. Each Party shall take the appropriate measures to :
xxx xxx
(c) Ensure that persons involved in the management of hazardous
wastes or other wastes within it take such steps as are necessary to
prevent pollution due to hazardous wastes and other wastes arising
from such management and, if such pollution occurs, to minimize the
consequences thereof for human health and the environment;
(d) Ensure that the transboundary movement of hazardous wastes and
other wastes is reduced to the minimum consistent with the
environmentally sound and efficient management of such wastes, and is
conducted in a manner which will protect human health and the
environment against the adverse effects which may result from such
movement;
xxx xxx
(g) Prevent the import of hazardous wastes and other wastes if it
has reason to believe that the wastes in question will not be managed
in an environmentally sound manner.”
4. Even restrictions on transboundary movement between parties contained
in Article 6 of the Convention, inter alia, provide that the State of
export shall not allow the exporter to commence the transboundary movement
until it has received written confirmation that the notifier has received
from the State of import confirmation of the existence of a contract
between the exporter and the disposer specifying environmentally sound
management of the wastes in question.
5. On 25th March, 1994, 65 countries which participated in the
Convention agreed by consensus to ban all exports of hazardous wastes from
OECD to Non-OECD countries immediately. It is the grievance of the Writ
Petitioner that inspite of such consensual decision to ban all exports of
hazardous wastes from OECD to Non-OECD countries, consistent efforts were
made by the industrialized countries to break down the Non-OECD solidarity
and to weaken the resolutions adopted at the BASEL Convention, and, in the
process, Asia was fast becoming a vast dumping ground for international
waste traders.
6. In the Writ Petition various instances were provided of the type of
toxic wastes imported into the country under the garb of recycling. The
Writ Petitioner has also drawn the attention of the Court to the provisions
of the Hazardous Wastes (Management & Handling) Rules, 1989, hereinafter
referred as the H.W.M.H. Rules, 1989, and complained of the fact that the
same had not been implemented both by the Central Government and the State
Governments and Union Territories and their respective Pollution Control
Boards.
7. Based on the said allegations, this Court initially asked all the
State Governments and Union Territories and their respective Pollution
Control Boards to submit affidavits as to how far the provisions of the
aforesaid Rules had been implemented. The Central Government was asked to
file a comprehensive affidavit in respect thereof. From the affidavits
filed, this Court appears to have come to the conclusion that the States
and their respective authorities did not seem to appreciate the gravity of
the matter and the need for taking prompt measures to prevent the adverse
consequences of such neglect. In the said background, this Court by its
order dated 13th October, 1997, appointed a High-Powered Committee, with
Prof. M.G.K. Menon as its Chairman, and referred 14 issues to the Committee
on which it was required to give its report and recommendations. Since the
said 14 terms of reference are of great relevance in the matter of disposal
of the writ petition, the same are reproduced hereinbelow :-
“(1) Whether and to what extent the hazardous wastes listed in the
Basel Convention have been banned by the Government and to examine
which other hazardous wastes, other than listed in the Basel
Convention and the Hazardous Wastes (Management and Handling) Rules,
1989, require banning.
(2) To verify the present status of the units handling hazardous
wastes imported for recycling or generating/recycling indigenous
hazardous wastes on the basis of information provided by the
respective States/UTs and determine the status of implementation of
the Hazardous Wastes (Management and Handling) Rules, 1989 by various
States/UTs and in the light of directions issued by the Hon'ble
Supreme Court.
(3) What safeguards have been put in place to ensure that banned
toxic/hazardous wastes are not allowed to be imported?
(4) What are the changes required in the existing laws to regulate
the functioning of units handling hazardous wastes and for protecting
the people (including workers in the factory) from environmental
hazards?
(5) To assess the adequacy of the existing facilities for disposal
of hazardous wastes in an environmentally sound manner and to make
recommendations about the most suitable manner for disposal of
hazardous wastes.
(6) What is further required to be done to effectively prohibit,
monitor and regulate the functioning of units handling hazardous
wastes keeping in view the existing body of laws?
(7) To make recommendations as to what should be the prerequisites
for issuance of authorisation/permission under Rule 5 and Rule 11 of
the Hazardous Wastes (Management and Handling) Rules, 1989.
(8) To identify the criteria for designation of areas for locating
units handling hazardous wastes and waste disposal sites.
(9) To determine as to whether the authorisations/permissions given
by the State Boards for handling hazardous wastes are in accordance
with Rule 5(4) and Rule 11 of the Hazardous Wastes Rules, 1989 and
whether the decision of the State Pollution Control Boards is based on
any prescribed procedure of checklist.
(10) To recommend a mechanism for publication of inventory at
regular intervals giving areawise information about the level and
nature of hazardous wastes.
(11) What should be the framework for reducing risks to environment
and public health by stronger regulation and by promoting production
methods and products which are ecologically friendly and thus reduce
the production of toxics?
(12) To consider any other related area as the Committee may deem
fit.
(13) To examine the quantum and nature of hazardous waste stock
lying at the docks/ports/ICDs and recommend a mechanism for its safe
disposal or re-export to the original exporters.
(14) Decontamination of ships before they are exported to India for
breaking.”
Each one of the said terms of reference are of special significance
as far as the reliefs prayed for in the writ petition are concerned. The
said High Powered Committee, comprised of experts from different fields,
submitted its report after making a thorough examination of all matters
relating to hazardous wastes.
8. On 14th October, 2003, the Writ Petition was taken up by this Court
to consider the report of the High Powered Committee on the Terms of
Reference which had been made to it. Although, initially, the
deliberations with regard to the contents of the Writ Petition were
confined to different toxic materials imported into India, at different
stages of the proceedings, a good deal of emphasis came to be laid on the
issue relating to imported waste oil lying in the ports and docks, as well
as on ship breaking. This Court observed that the ship breaking operations
could not be allowed to continue, without strictly adhering to all
precautionary principles, CPCB guidelines and upon taking the requisite
safeguards, which have been dealt with extensively in the report of the
High Powered Committee, which also included the working conditions of the
workmen.
9. One of the other issues which was required to be dealt with was the
disappearance of hazardous waste from authorized ports/Indian Container
Depots/Container Freight Stations and also as to how to deal with the
containers lying there. Since disappearance of hazardous waste was one of
the Terms of Reference, by order dated 10th December, 1999, this Court
directed that a list of importers who had made illegal imports be placed on
record. Since the same was not done, this Court on 3rd December, 2001,
directed the Government to inquire into the matter, which resulted in the
appointment of an eight-member Committee by the Government, chaired by Mr.
A.C. Wadhawan. The report dated 26th July, 2002, submitted by the said
Committee suggested that action should be taken against the importer for
illegal import under the Customs Act, 1962, and also under the Central
Excise Act, 1944. This Court categorized the matter into two parts. The
first part related to imports made and cleared, where the consignments had
already found their way to the market. The second part related to the
stocks of hazardous waste lying at various ports/ICDs/CFSs. The question
which arose was as to how the said stock was to be cleared from where they
were lying. This Court was of the view that the stock in question could be
divided into two categories; one, relating to imports of goods which were
banned under the H.W.M.H. Rules, 1989, as amended up to date or falling
under the banned category as per the Basel Convention and the other
relating to waste in respect whereof there was no ban and being regulated,
it was permissible to recycle and reprocess the same within the permissible
parameters by specified authorized persons having requisite facilities
under the Rules, as amended up to date. The Court directed that the said
consignments falling under the said category were to be released or
disposed of or auctioned in terms of the Rules, to the registered recyclers
and reprocessors. However, in case the importer of such goods remained
untraceable, the authorities were directed to deal with the same at the
risk, cost and consequences of the importer. It was specified that the
consignment of such importer could not be allowed to remain at the ports
etc. indefinitely, merely because the importer was not traceable.
10. For the purpose of dealing with such consignments where the importer
could not be traced, this Court was of the view that the same should be
dealt with, disposed of/auctioned by a Monitoring Committee which was
appointed by the Court by the said order itself. The Monitoring Committee
was comprised of existing members of the Committee constituted by the
Ministry of Environment and Forests, along with one Dr. Claude Alvares, NGO
and Dr. D.B. Boralkar. The Committee was directed to oversee that the
directions of this Court were implemented in a time-bound fashion.
11. One of the other issues which came up for consideration before this
Court was the MARPOL Convention which made it compulsory for signatory
nations to allow discharge of sludge oil for the purposes of recycling. In
the wake of the other issues which were taken up by this Court while
considering the report of the High Powered Committee and that of the
Wadhawan Committee, the issue relating to the provisions of the MARPOL
Convention was set apart for decision at a later stage.
12. The original MARPOL Convention was signed on 17th February, 1973, but
did not come into force. Subsequently, in combination with the 1978
Protocol, the Convention was brought into force on 2nd October, 1983. As
will be noticed from the acronym, the expression “MARPOL” is the short form
of “Marine Pollution”. The same was signed with the intention of
minimizing pollution on the seas, which included dumping, oil and exhaust
pollution. Its object was to preserve the marine environment through the
complete elimination of pollution by oil and other harmful substances and
the minimization of accidental discharge of such substances. As far as
this aspect of the matter is concerned, the Central Government was directed
to file an affidavit indicating in detail how the said oil was dealt with.
The issue relating to the import of such sludge oil was left unresolved for
decision at a subsequent stage.
13. However, during the course of hearing in regard to the import of
waste oil purportedly in violation of the H.W.M.H. Rules, 1989, the two
dominating principles relating to pollution, namely, the polluter-pays
principle and precautionary principle, were examined at length. The report
of the Committee indicated that the hazardous waste oil was imported into
the country in the garb of furnace oil and, in fact, the containers and the
vessels in which they were being transported, were also highly polluted,
causing a tremendous risk to the environment and to human existence.
Ultimately, by the said order of 14th October, 2003, certain directions
were given regarding the procedure to be adopted, with regard to ship
breaking, to the Central Pollution Control Board, to prepare a national
inventory for rehabilitation of hazardous waste dump sites. The State
Pollution Control Boards were directed to ensure that all parties dealing
in hazardous chemicals which generated hazardous wastes, displayed online
data in that regard outside their respective factories, on the pattern of
Andhra Pradesh. The Ministry of Environment and Forests were also directed
to consider making provision for Bank Guarantees. Certain recommendations
were also made with regard to legislation in order to destroy any trans-
boundary movement of hazardous wastes or other wastes and to punish such
illegal trafficking stringently.
14. The matter rested there and only interim directions were given from
time to time till it surfaced again before the Court on 25th January, 2003.
On this occasion, the focus of this Court was directed towards the
presence of hazardous waste oil in 133 containers lying at Nhava Sheva
Port, as noticed by the High Powered Committee. On the directions of the
Court, the oil contained in the said 133 containers was sent for laboratory
test to determine whether the same was hazardous waste oil or not. After
such examination it was found to be hazardous waste. Considering the
detailed report submitted by the Commissioner of Customs (Imports), Mumbai,
and the Monitoring Committee, and after hearing learned counsel for the
parties, this Court observed that the issue to be determined in the
proceedings was limited to the environment and in giving proper directions
for dumping consignments in question, having regard to the precautionary
principle and polluter-pays principle. The main question before the Court
was whether only a direction was required to be issued for the destruction
of the consignment in order to protect the environment and, if not, in what
other manner could the consignments be dealt with. Having considered the
provisions of the Basel Convention on the Control of Trans-Boundary
Movement of Hazardous Wastes and their disposal, and the report of the
Monitoring Committing recommending destruction of the consignments by
incineration, but also keeping in mind the fact that import of waste oil
was permitted for the purpose of recycling, this Court directed that where
the consignment was found fit for recycling, the same should not be
destroyed, but recycling should be permitted under the supervision of the
Monitoring Committee. However, it was also recorded that if recycling was
not considered advisable by the Government, the said consignment would also
have to be destroyed by incineration along with other consignments. In such
a case the cost of incineration was to be borne by the Government.
15. Taking further note of the precautionary principle forming part of
the Vienna Declaration and also having regard to the polluter-pays
principle, this Court directed that it would be feasible to dispose of the
oil under the supervision of the Monitoring Committee by incineration which
would have no impact on the environment. It was directed that the 133
containers in question be destroyed by incineration as per the
recommendations of the Monitoring Committee and under its supervision, at
the cost of the importer which was assessed by the Monitoring Committee at
Rs.12/- per kilo, which would have to be paid by the importers in advance.
In the order dated 9th May, 2005, this Court took up for consideration the
Fifth Quarterly Report of March 2005, filed by the Monitoring Committee
from which it was seen that the waste oil contained in the 133 containers
had not been destroyed in terms of the direction given on 5th January,
2005, on account of non-payment of the cost of incineration by the
importers. None of the importers had made the payment for incineration,
though, a direction had been given to deposit the cost of incineration
within four weeks from the date of the order. However, while taking
serious note of non-payment of the incineration cost, this Court also felt
that the destruction of the waste oil could not be delayed any further and
directed immediate destruction of the waste oil in terms of order dated 5th
May, 2005, by the Monitoring Committee and for the said purpose the cost of
incineration was to be initially borne by the Customs Department, to be
recovered from the importers. Simultaneously, a further opportunity was
given to the importers to deposit the cost of incineration with the
Monitoring Committee within two weeks, failing which they were directed to
remain present in the Court on 18th July, 2005, and to show-cause why
proceedings for contempt should not be taken against them. The Monitoring
Committee was directed to file a report in that regard on the next date.
16. One other aspect was also taken note of with regard to the directions
given to the Jawaharlal Nehru Port Trust, Mumbai Port Trust and the
Commissioner of Customs, to furnish requisite information with regard to
the 170 containers, which were lying unclaimed, to the Monitoring
Committee. Since the same had not been filed within four weeks, as
directed, the Chairperson of the Jawaharlal Nehru Port Trust, the Mumbai
Port Trust and the Chief Commissioner of Customs Department, were directed
to file personal affidavits as to why the order of the Court had not been
complied with. Subsequently, suo-motu contempt proceedings, being No.155 of
2005, in Writ Petition(C) No.657 of 1995, were initiated for non-compliance
of the directions contained in the order of 9th May, 2005.
17. As far as the suo-motu contempt proceedings are concerned, the same
are an off-shoot of the various orders passed in the writ proceedings and
the same will have to be considered separately from the reliefs prayed for
in the writ petition itself.
18. At the very beginning of this judgment we have set out the reliefs
prayed for in the writ petition, which, inter alia, include a prayer for a
direction upon the Union of India to ban imports of all hazardous/toxic
wastes and for a further direction to amend the rules in conformity with
the BASEL Convention and Articles 21, 47 and 48A of the Constitution.
Apart from the above, a declaration has also been sought that without
adequate protection of the workers and the public and without any provision
of sound environment management of disposal of hazardous/toxic wastes, the
Hazardous Wastes (Management & Handling) Rules, 1989, are violative of the
Fundamental Rights guaranteed under the Constitution and, therefore,
unconstitutional.
19. Since the proceedings became a continuing mandamus, this Court from
time to time took up several issues emanating from the first prayer in the
writ petition to ban imports of all hazardous/toxic wastes. However, in
the process, one of the Conventions, namely, the impact of the MARPOL
Convention, though referred to, was not decided and left for decision at
the final hearing.
Accordingly, that aspect of the matter has to be decided also in these
proceedings.
20. In one of the earlier orders passed on 5th May, 1997, two Hon’ble
Judges had occasion to deal with the enormous generation of hazardous
wastes in the country each day and Their Lordships were of the opinion that
the said fact alone indicated sufficiently the magnitude of the problem and
the promptitude with which it was needed to be tackled before the damage
became irreversible. Their Lordships observed that prompt action was
required to be taken, not only by the Central Government, but also by the
State Governments and the Central and the State Pollution Control Boards.
Accordingly, notice was given to all the State Governments and the State
Control Boards to file their replies, and directions were also given that
with effect from that date no authorization/ permission would be given by
any authority for the import of wastes which had already been banned by the
Central Government or by any order made by any Court or any other
authority. In addition, it was also directed that with effect from the
date of the order, no import would be made or permitted by any authority or
any person of any hazardous waste, which was already banned under the Basel
Convention or was to be banned subsequently, with effect from the date
specified therein. Notice was also issued to the State Governments to show
cause as to why an order should not be made directing closure of the units
utilizing the hazardous wastes where provision had already been made for
requisite safe disposal sites. In addition, the State Governments were
also directed to show cause as to why immediate orders should not be made
for the closure of all unauthorized hazardous waste handling units.
21. Thereafter, during the pendency of the matter, a fresh Special Leave
Petition was filed, being SLP(C)No.16175 of 1997, by Dr. Surendra Dhelia
against the Union of India and others regarding import of contaminated
waste oil and their disposal, since despite directions given to the State
Governments and the Union of India, no affidavits were forthcoming and, as
a result, on 4th February, 2002, a direction was given to the Secretary in
the Ministry of Environment and Forests to file affidavits in compliance
with the orders passed on 14th September, 2001 and 3rd December, 2001. A
sum of Rs.10,000/- was also imposed as costs against the Ministry of
Environment and Forests.
22. The matter came up again before the Court on 24th September, 2003, in
which the H.W.M.H. Rules,
1989, fell for consideration having regard to Section 11 of the Customs
Act, 1962, which empowers the Central Government to prohibit either
absolutely or subject to such conditions as may be specified in the
notification, the import and export of the goods, if satisfied that it is
necessary so to do for any of the purposes stated in Sub-Section (2).
Since on behalf of the Central Government it was submitted that the import
of 29 items had already been prohibited under Schedule 8 of the Hazardous
Waste Rules, the Court directed the Central Government to issue a
notification without further delay under Section 11 of the Customs Act,
1962, prohibiting the import of the said 29 items. Their Lordships also
noted that the BASEL Convention had banned 76 items. Their Lordships were
of the view that the remaining items were also required to be examined and,
if necessary, to issue additional notifications to
comply with any ban that may have been imposed in respect of remaining
items.
23. What is more important is the fact that the Hon’ble Judges took note
of the provisions of the Hazardous Waste Rules which allowed import of
certain items subject to fulfillment of certain conditions. This Court
directed that before the imported consignment was cleared, the requisite
notification was to be issued making the compliance of the said conditions
mandatory. In particular, in paragraph 7 of Their Lordships’ order, a
direction was given to the Competent Authority to the effect that while
disposing of hazardous waste, in exercise of power under Sections 61 and 62
of the Major Port Trusts Act, 1963, they were required to ensure that the
H.W.M.H. Rules, as amended up to date, and in particular, Rules 19 and 20
thereof, were complied with.
24. The said direction becomes relevant in relation to the third prayer
made in the writ petition, as referred to hereinabove, relating to the
constitutionality of the H.W.M.H. Rules, 1989. One thing is clear that
even at the interim stage, there was no challenge as such to the
constitutionality of the aforesaid Rules and that, on the other hand,
directions were given by the Court to ensure compliance thereof.
25. Then came the orders relating to the import of 133 containers of
hazardous waste oil, in the garb of lubricating oil, which led to the
appointment of a Monitoring Committee to oversee the destruction by
incineration of the waste oil, as well as the containers thereof. Detailed
orders having been passed in relation to the destruction of the waste and
hazardous oil imported into the country in the garb of lubricating oil, and
the directions given to the Monitoring Committee regarding re-export of the
same, we will consider the impact of the MARPOL Convention against such
background.
26. The MARPOL Convention, normally referred to as “MARPOL 73/78”, may be
traced to its beginnings in 1954, when the first conference was held and an
International Convention was adopted for the Prevention of Pollution of Sea
by Oil (OILPOL). The same came into force on 26th July, 1958 and attempted
to tackle the problem of pollution of the seas by oil, such as,
(a) crude oil;
(b) fuel oil;
(c) heavy diesel oil; and
(d) lubricating oil.
27. The first Convention was amended subsequently in 1962, 1969 and 1971,
limiting the quantities of oil discharge into the sea by Oil Tankers and
also the oily wastes from use in the machinery of the vessel. Prohibited
zones were established extending the setting up of earmarked areas in which
oil could be discharged, extending at least 50 miles from the nearest land.
In 1971, reminders were issued to protect the Great Barrier Reef of
Australia. 1973 saw the adoption of the International Convention for the
Prevention of Pollution from Ships. The said Convention, commonly referred
to as MARPOL, was adopted on 2nd November, 1973, at the International
Marine Organization and covered pollution by :
(i) oil;
(ii) chemicals;
(iii) harmful substances in packaged form;
(iv) sewage; and
(v) garbage
Subsequently, the 1978 MARPOL Protocol was adopted at a Conference on
Tanker Safety and Pollution Prevention in February, 1978.
28. The overall objective of the MARPOL Convention was to completely
eliminate pollution of the marine environment by discharge of oil and other
hazardous substances from ships and to minimize such discharges in
connection with accidents involving ships. The MARPOL 73/78 Convention has
six Annexures containing detailed regulations regarding permissible
discharges, equipment on board ships, etc. They are as follows :
Annex I : Regulations for the Prevention of Pollution by Oil, 2
October, 1983.
Annex II : Regulations for the Control of Pollution by Noxious Liquid
Substances (Chemicals) in Bulk, 6 April, 1987.
Annex III : Regulations for the Prevention of Pollution by Harmful
Substances Carried by Sea in Packaged Form, 1 July 1992.
Annex IV : Regulations for the Prevention of Pollution by Sewage from
ships, 27 September 2003.
Annex V : Regulations for the Prevention of Pollution by Garbage from
Ships, 31 December 1988.
Annex VI : Regulations for the Prevention of Air Pollution from Ships
and Nitrogen oxide. Will enter into force on 19 May 2005
29. Apart from the said Regulations, the MARPOL Convention also contains
various Regulations with regard to inspection of ships in order to
ensure due compliance with the requirements of the Convention.
30. India is a signatory, both to the BASEL Convention as also the MARPOL
Convention, and is, therefore, under an obligation to ensure that the same
are duly implemented in relation to import of hazardous wastes into the
country. As we have noticed earlier, the BASEL Convention prohibited the
import of certain hazardous substances on which there was a total ban.
However, some of the other pollutants, which have been identified, are yet
to be notified and, on the other hand, in order to prevent pollution of the
seas, under the MARPOL Convention the signatory countries are under an
obligation to accept the discharge of oil wastes from ships. What is,
therefore, important is for the concerned authorities to ensure that such
waste oil is not allowed to contaminate the surrounding areas and also, if
suitable, for the purposes of recycling, to allow recycling of the same
under strict supervision with entrusted units and, thereafter, to oversee
its distribution for reuse.
31. As far as the first two prayers in the writ petition are concerned,
the same have already been taken care of by the orders dated 13th October,
1997 and 14th October, 2003. By the first of the two orders, this Court
appointed the High-Powered Committee with Prof. M.G.K. Menon as its
Chairman and 14 issues were referred to the said Committee. After the said
Committee submitted its Report, another Committee under the Chairmanship of
Mr. A.C. Wadhawan was appointed to enquire into the disappearance of
hazardous wastes from various ports and container depots, and the question
relating to the working conditions of the workmen who handle such wastes.
After the Wadhawan Committee submitted its Report, various directions were
given with regard to the handling of such hazardous wastes. Furthermore,
the contamination risks involved in ship breaking also came into focus in
the light of the provisions of the Hazardous Wastes Rules, 1989, and
directions were given as to how ships, which were carrying wastes, were to
be dealt with before entering into Indian waters, which included the
prohibition on the exporting country to export such oil or substance
without the concurrence and clearance from the importing country. During
the course of hearing, an issue was raised by Mr. Sanjay Parikh, learned
counsel appearing for the petitioner, that some conditions may be laid down
in relation to vessels containing hazardous wastes entering Indian waters
without proper compliance with the provisions of the BASEL and the MARPOL
Conventions. However, since the question of ship breaking and distribution
of hazardous wastes are being considered separately in the contempt
proceedings, in these proceedings we expect and reiterate that the
directions contained in the BASEL Convention have to be strictly followed
by all the concerned players, before a vessel is allowed to enter Indian
territorial waters and beach at any of the beaching facilities in any part
of the Indian coast-line. In case of breach of the conditions, the
authorities shall impose the penalties contemplated under the municipal
laws of India.
32. The directions contained in the second order is based on the polluter
pays principle, which is duly recognized as one of the accepted principles
for dealing with violation of the BASEL Convention and the H.W.M.H. Rules,
1989, and the same will be applicable whenever such violations occur.
However, till such time as a particular product is identified as being
hazardous, no ban can be imposed on its import on the ground that it was
hazardous. Such import will, however, be subject to all other statutory
conditions and restrictions, as may be prevailing on the date of import.
Accordingly, the general prayer made in the writ petition that the
Government of India should put a total ban on all hazardous wastes, can be
applied in respect of such hazardous wastes as have been identified by the
BASEL Convention and its Protocols over the years and/or where import into
the country have been restricted by the municipal laws of India. In respect
of such banned items, directions have already been given in the order dated
13th October, 1997, to issue a notification to ban the import of such
identified hazardous substances. In the event, any other items have since
been identified, the Central Government is directed to issue appropriate
notifications for banning the import of such hazardous substances as well.
33. The third prayer, that in the event of non-compliance, the provisions
of the Hazardous Wastes (Management & Handling) Rules, 1989, should be
declared as unconstitutional, cannot be granted, since the same are in aid
and not in derogation of the provisions of Articles 21, 39(e), 47 and 48A
of the Constitution. In fact, as mentioned hereinabove, even at the interim
stage, directions were given for compliance with the said Rules,
particularly in the matter of destruction of the waste oil contained in 170
containers by incineration at the cost of the importer.
34. The writ petition has been entertained and has also been treated by
all concerned not as any kind of adversarial litigation, but litigation to
protect the environment from contamination on account of attempts made to
dump hazardous wastes in the country, which would ultimately result in the
destruction, not only of the environment, but also the ecology as well and,
in particular, the fragile marine bio-diversity along the Indian Coast-
line. The petitioner Foundation has played a very significant role in
bringing into focus some very serious questions involving the introduction
of hazardous substances into the country, which needed the Courts’
attention to be drawn having regard to the BASEL Convention, aimed and
protecting marine biology and countries having coast-lines alongside seas
and oceans.
35. The writ petition is, therefore, disposed of by reasserting the
interim directions given with regard to the handling of hazardous wastes
and ship breaking in the various orders passed in the writ petition from
time to time and, in particular, the orders dated 13th October, 1997 and
14th October, 2003. The Central Government is also directed to ban import
of all hazardous/toxic wastes which had been identified and declared to be
so under the BASEL Convention and its different protocols. The Central
Government is also directed to bring the Hazardous Wastes (Management &
Handling) Rules, 1989, in line with the BASEL Convention and Articles 21,
47 and 48A of the Constitution. The further declaration sought for that
without adequate protection to the workers and public, the aforesaid Rules
are violative of the Fundamental Rights of the citizens and are, therefore,
unconstitutional, is, however, rejected in view of what has been discussed
hereinabove.
36. In the peculiar facts of the case, there will be no order as to
costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated: 6th July, 2012.
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