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TMI Blog2012 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event 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 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 3 rd 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 haz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mending 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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