TMI Blog2012 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution - 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. - Writ Petition (C) No.657 of 1995 - - - Dated:- 6-7-2012 - Altamas Kabir and Chelameswar, JJ. JUDGEMENT Per: Altamas Kabir: 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 Was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aste 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain 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-Bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ASEL 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 advers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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