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Supreme Court Of India
Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.
RESEARCH FOUNDATION FOR SCIENCE TECHNOLOGY NATIONAL RESOURCE POLICY -Appellant
Versus
UNION OF INDIA AND ANOTHER-Respondents
Writ Petition No. 657 of 1995 with SLP (C) No. 16175 of 1997 and CA
No. 7660 of 1997,
Decided on October 14,2003
The Supreme Court of India issued a comprehensive order addressing the management and handling of hazardous waste in the country. The order was based on a petition filed by an NGO highlighting the illegal import and dumping of hazardous waste, as well as the inadequate implementation of the Hazardous Wastes (Management and Handling) Rules, 1989 (HW Rules).
Fact of the Case:
The petitioner, an NGO, filed a petition highlighting the illegal import and dumping of hazardous waste in India, as well as the inadequate implementation of the Hazardous Wastes (Management and Handling) Rules, 1989 (HW Rules). The petition sought directions from the Supreme Court to address these issues and ensure the proper management and handling of hazardous waste.
Finding of the Court:
The Supreme Court, after examining the report of a High-Powered Committee (HPC) constituted to study the issue, found that there was indeed a lack of proper attention and implementation of the HW Rules by the authorities concerned. The Court also noted the serious and irreversible damage caused to the environment, flora, fauna, and human health due to the improper handling of hazardous waste.
Issues: 1. Illegal import and dumping of hazardous waste in India. 2. Inadequate implementation of the Hazardous Wastes (Management and Handling) Rules, 1989 (HW Rules). 3. Lack of proper attention and implementation of the HW Rules by the authorities concerned. 4. Serious and irreversible damage caused to the environment, flora, fauna, and human health due to the improper handling of hazardous waste.
Ratio Decidendi: The Supreme Court relied on the following legal principles in reaching its decision: 1. The precautionary principle and polluter-pays principle are part of the concept of sustainable development in India and are enforceable as facets of fundamental rights guaranteed under Article 21 of the Constitution. 2. The Basel Convention, which India has ratified, effectuates the fundamental rights guaranteed under Article 21 and the right to information and community participation for protection of environment and human health is also a right that flows from Article 21. 3. The government and authorities have to motivate public participation by formulating the necessary programmes.
Final Decision: The Supreme Court issued a comprehensive order containing various directions to address the issues of illegal import and dumping of hazardous waste, inadequate implementation of the HW Rules, and the improper handling of hazardous waste. The directions included: 1. Directions to the Central Government to consider banning more items in addition to the 29 items already banned under the HW Rules, including used edible oil, cow dung, plastic scrap, used PVC, and pet bottles. 2. Directions to the State Pollution Control Boards (SPCBs) and Pollution Control Committees (PCCs) to close forthwith units operating without authorization or in violation of the conditions of authorization issued under the HW Rules. 3. Directions to the Central Pollution Control Board (CPCB) to issue guidelines to SPCBs and PCCs on environmentally sound technologies and standards for re-refining or recycling. 4. Directions to the SPCBs and PCCs to implement the directions issued by the Ministry of Environment and Forests (MOEF) and to prepare comprehensive reports on illegal hazardous waste dump sites in their jurisdiction. 5. Directions to the MOEF to consider making a provision for a bank guarantee to be given by the importer while seeking permission to import certain items, such as used oil, furnace oil, and zinc wastes. 6. Directions to the MOEF to draft a policy document on hazardous waste generation and its handling within the country, taking into account the recommendations of the HPC.
ORDER
1. Hazardous wastes are highly toxic in nature. Industrialisation has had the effect of generation of huge quantities of hazardous wastes. These and other side effects of development gave birth to principles of sustainable development so as to sustain industrial growth. The hazardous waste requires adequate and proper control and handling. Efforts are required to be made to minimise it. In developing nations, there are additional problems including that of dumping of hazardous waste on their lands by some of the nations where cost of destruction of such waste is felt very heavy. These and other
allied problems gave birth to the Basel Convention. The key objectives of the Basel Convention are:
"to minimise the generation of hazardous wastes in terms of quantity and hazardousness;
to dispose of them as close to the source of generation as possible; to reduce the transboundary movement of hazardous wastes."
2. Due to alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage, as a result thereof, to the environment, flora and fauna, health of animals and human beings, the petitioner approached this Court under Article 32 complaining of violation of Articles 14 and 21 of the Constitution.
3. The petitioner has, inter alia, relied upon the Basel Convention. The Basel Convention was signed by India on 15-3-1990 and ratified on 24-61992.
4. Prom time to time various affidavits have been filed in this matter by the Ministry of Environment and Porests (for short MOEP) and the Pollution Control Boards. The aspects that have been considered and reflected in various orders that have been passed and are further required to be considered and appropriate directions issued relate to the provisions of the Hazardous Wastes (Management and Handling) Rules, 1989 (for short the HW Rules), the implementation of these Rules and other connected issues relating to hazardous waste. These Rules have been amended during pendency of this petition, the latest amendment being of 23-5-2003.
5. Considering the magnitude of the problem and the extent of hazardous waste generated, this Court issued notices to all the State Governments, the Central Pollution Control Board and the State Pollution Control Boards so as to identify the problem, identify the extent of such waste, availability of the disposal sites and various other aspects relevant to minimising the generation, its proper handling and disposal with a view to safeguard the environment degradation.
6. By order dated 5-5-1997, this Court, inter alia, directed that no authorisationlpermission would be given by any authority for the import of hazardous waste items which have already been banned by the Central Government or by any order made by any court or any other authority and no import would be made or permitted by any authority or any person, of any hazardous waste which is already banned under the Basel Convention or to be banned hereafter with effect from the dates specified therein. In view of the magnitude of the problem and its impact, the State Governments were a directed to show cause why an order be not made directing closure of units utilising the hazardous waste where provision is not already made for requisite safe disposal sites. It was further ordered that cause be shown as to why immediate order be not made for closure of all unauthorised hazardous waste handling units.
7. We have extensively perused the record with the assistance of learned counsel. The material on record demonstrates that proper attention was not paid by the authorities concerned in implementing the HW Rules, 1989. These Rules were amended with effect from 6-6-2000 and further amended on 23-5-2003. The problem is not as much of absence of the Rules as it is of implementation. If the Rules are amended, but not implemented, the same remain on paper. If the HW Rules as in 1989 had been properly implemented, the problem would not have been as grave as faced now. Like
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