# RESEARCH FOUNDATION FOR SCIENCE, TECHNOLOGY AND NATURAL RESOURCE POLICY v. UNION OF IN.DIA & ORS

- **Citation:** [2012] 6 S.C.R. 489
- **Court:** Supreme Court of India
- **Decided:** 2012-07-06
- **Case number:** Writ Petition (C} No. 657 of 1995
- **Bench:** Altamas Kabir, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/research-foundation-for-science-technology-and-natural-resource-policy-v-union-28196
- **Pages:** 28

## Headnote

A
B
Environmental law: Hazardous waste - Import of toxic
waste - Ban on such imports - Writ petition challenging the
C
decision of the Ministry of Environment and Forests permitting
import of toxic wastes in India under the cover of recycling;
seeking direction to the Union of India to ban all imports of
all hazardous/toxic wastes; seeking amendment of the
Hazardous Wastes (Management & Handling) Rules, 1989
D
(H. WM.H. Rules) in conformity with the BASEL Convention
and Articles 21, 47 and 48A of the Constitution; and for
declaration that without adequate protection to the workers and
public and without any provision of sound environment
management of disposal of hazardous/toxic wastes, H. WM.H.
E
Rules are violative of Fundamental Rights and, therefore,
unconstitutional - Writ petition 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,
F
the orders dated 13th October, 1997 and 14th October, 2003
- Central Government also directed to ban import of ali
hazardous/toxic wastes identified and declared to be so under
the BASEL Convention and its different protocols - Central
Government also directed to bring the H. WM. H. Rules, in line
G
with the BASEL Convention and Articles 21, 47 and 48A of
the Constitution - Prayer for declaration that without adequate
protection to the workers and public, the said Rules are
violative of the Fundamental Rights of the citizens, however,
489
H
490
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A rejected - Hazardous Wastes (Management & Handling)
Rules, 1989 - Constitution of India, 1950 - Articles 21, 47 and
4BA - BASEL Convention.
International treaties: BASEL Convention and MARPOL
8
convention - Objectives of - Discussed.
In the instant writ petition, 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
C 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.
D In the writ petition, the petitioner was seeking direction
to the Union of India to ban all imports of hazardous/toxic
wastes; amendment of Hazardous Wastes (Management
& Handling) Rules, 1989 (H.W.M.H. Rules) in conformity
with the BASEL Convention and Article 21, 47 and 48A
E of the Constitution; and declaration that without
adequate protection to the workers and public and
without any provision of sound environment
management of disposal of hazardous/toxic wastes, the
H.W.M.H. Rules are violative of Fundamental Rights and,
F therefore, unconstitutional. 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.
G
The Supreme Court by its interim order dated 13th
October, 1997, appointed a High-Powered Committee
comprising of experts from different fields. The said
Committee submitted its report after making a thorough
H examination of all matters relating to hazardous wastes.
'
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 491
RES. POLICY v. UNION OF INDIA
On 14th October, 2003, the writ petition was taken up
A
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 B
the proceedings, a good deal of emphasis was laid on the
issue relating to imported waste oil lying in the ports and
docks, as w

## Text

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[2012] 6 S.C.R. 489
RESEARCH FOUNDATION FOR SCIENCE,
TECHNOLOGY AND NATURAL RESOURCE POLICY
v.
UNION OF IN.DIA & ORS.
(Writ Petition (C} No. 657 of 1995)
6 JULY, 2012
[ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]
A
B
Environmental law: Hazardous waste - Import of toxic
waste - Ban on such imports - Writ petition challenging the
C
decision of the Ministry of Environment and Forests permitting
import of toxic wastes in India under the cover of recycling;
seeking direction to the Union of India to ban all imports of
all hazardous/toxic wastes; seeking amendment of the
Hazardous Wastes (Management & Handling) Rules, 1989
D
(H. WM.H. Rules) in conformity with the BASEL Convention
and Articles 21, 47 and 48A of the Constitution; and for
declaration that without adequate protection to the workers and
public and without any provision of sound environment
management of disposal of hazardous/toxic wastes, H. WM.H.
E
Rules are violative of Fundamental Rights and, therefore,
unconstitutional - Writ petition 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,
F
the orders dated 13th October, 1997 and 14th October, 2003
- Central Government also directed to ban import of ali
hazardous/toxic wastes identified and declared to be so under
the BASEL Convention and its different protocols - Central
Government also directed to bring the H. WM. H. Rules, in line
G
with the BASEL Convention and Articles 21, 47 and 48A of
the Constitution - Prayer for declaration that without adequate
protection to the workers and public, the said Rules are
violative of the Fundamental Rights of the citizens, however,
489
H
490
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A rejected - Hazardous Wastes (Management & Handling)
Rules, 1989 - Constitution of India, 1950 - Articles 21, 47 and
4BA - BASEL Convention.
International treaties: BASEL Convention and MARPOL
8
convention - Objectives of - Discussed.
In the instant writ petition, 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
C 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.
D In the writ petition, the petitioner was seeking direction
to the Union of India to ban all imports of hazardous/toxic
wastes; amendment of Hazardous Wastes (Management
& Handling) Rules, 1989 (H.W.M.H. Rules) in conformity
with the BASEL Convention and Article 21, 47 and 48A
E of the Constitution; and declaration that without
adequate protection to the workers and public and
without any provision of sound environment
management of disposal of hazardous/toxic wastes, the
H.W.M.H. Rules are violative of Fundamental Rights and,
F therefore, unconstitutional. 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.
G
The Supreme Court by its interim order dated 13th
October, 1997, appointed a High-Powered Committee
comprising of experts from different fields. The said
Committee submitted its report after making a thorough
H examination of all matters relating to hazardous wastes.
'
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 491
RES. POLICY v. UNION OF INDIA
On 14th October, 2003, the writ petition was taken up
A
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 B
the proceedings, a good deal of emphasis was laid on the
issue relating to imported waste oil lying in the ports and
docks, as well as on ship breaking. The Supreme Court
observed that the ship breaking operations could not be
allowed to continue, without strictly adhering to all c
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.
Regarding the presence of hazardous waste oil in
133 containers lying at Nhava Sheva Port as. noticed by
the High Powered Committee, the Supreme Court
directed by way of interim order to dispose of the waste
D
oil under the supervision of Monitoring Committee by
E
incineration.
Disposing of the writ petition, the Court
HELD: 1. 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. The BASEL Convention
prohibited the import of certain hazardous substances
F
on which there was a total ban. However, some of the
other pollutants, which have been identified, are yet to be
G
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. It is, therefore,
important for the concerned authorities to ensure that
H
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SUPREME COURT REPORTS
[2012) 6 S.C.R.
A 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. [Para 30) [513-A-D]
B
2. As far as the first two prayers in the writ petition
were concerned, the same had 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
C 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
D 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
E 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
F prohibition on the exporting country to export such oil
or substance without the concurrence and clearance
from the importing country. Since the question of ship
breaking and distribution of hazardous wastes were
being considered separately in the contempt
G proceedings, 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
H breach of the conditions, the authorities shall impose the
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 493
RES. POLICY v. UNION OF INDIA
penalties contemplated under the municipal laws of A
India. [Para 31) [513-E-H; 514-A-D)
3. 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 is 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
C
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
D
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 were
already given in the order dated 13th October, 1997, to
E
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
B
to issue appropriate notifications for banning the import
of such hpardous substances as well. [Para 32) [514-EH; 515-A-B]
F
4. The third prayer, that in the event of noncompliance, the provisions of the Hazardous Wastes
(Management & Handling) Rules, 1989, should be
G
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, even at the interim stage, directions were given for
compliance with the said Rules, particularly in the matter H
494
SUPREME COURT REPORTS
[2012) 6 S.C.R.
A of destruction of the waste oil contained in 170
containers by incineration at U:ie cost of the importer.
[Para 33] [515-B-D]
5. The writ petition was entertained and also treated
8 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
C marine bio-diversity along the Indian Coast-line. Th~
petitioner .foundation played a very significant rol~ in
bringing into focus some very serious questions
involving the introduction of hazardous substances into
the country, which needed the Courts' attention to be
D drawn having regard to the BASEL Convention, aimed at
protecting marine biology and countries having coastlines alongside seas and oceans. The writ petition is,
therefore, disposed of by reasserting the interim
directions given with regard to the handling of hazardous
E 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
F 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
G 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 is
however rejected. [Paras 34, 35] [515-D-H; 516-A-B]
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
H 657 of 1995 etc.
RESEARCH FOUNDATION FOR'. SCIENCE, TECH. AND NATURAL 495
RES. POLICY v. UNION OF INDIA
Under Article 32 of the Constitution of India.
WITH
Conmt. Pet. (C) No. 155 of 2005, SLP No. 16175of1997, C.A
Nos. 7660 of 1997 & 8300-8301 of 2004.
P.P. Malhotra, Mohan Parasaran, ASG, Ashok Bhan, V.
A
B
Shekhar, AK. Panda, Cotin Gonsalves. Dr. Manish Singhvi,
AAG, A. Mariarputham, AG, Sanjay Parikh, Mamta Sax.ena,
AN. Singh, Pranav Raina, Shanmugo Patro, B. Vijayalakshmi
Menon, P. Parmeswaran, E.C. Agrawala, Sadhana Sandhu,
Ashwani Garg, Savitri Pandey, Krishna Kumar, Mukesh Verma,
C
B. Krishna Prasad, Anil Kumar Jha, Manik Karanjawala, K.B.
Rohtagi, Hemantika Wahi, Jesal, Satyabrat Panda, Ashok
Mathur, Shakil Ahmed Syed, Pradeep Misra, Gopal Singh,
Manish Kumar, Rituraj Biswas, Khwairakpam Nobin Singh,
Sapan Biswajit Meitei, Anil Shrivastav, Amit Kumar, Rakesh K.
D
Sharma, Radha Shyam Jena, Urmila Sirur, Sushma Suri, Anil
Katiyar, Manoj K. Mishra, Rajeev K. Dubey, Kamlendra Mishra,
Sinha & Das, Sanjay R. Hegde, Vartika Sahay, Deepika G.,
Corporate Law Group, Aruneshwar Gupta, Janaranjan Das, Ejaj
Maqbool, Bina Gupta, S. Janani, Ajay Sharma, Dilip Kumar
E
Sharma, Atiashi Dipankar, Nikhil Nayyar, P.S. Sudheer, D.N.
Goburdhan, Shiv Kant Arora, A Rastogi, Kartika Sharma,
Mukesh Verma, Yash Pal Dhingra, J.S. Wad & Co. Gaurav
Agrawal, Binu Tamta, Ashwani Bhardwaj, R. Satish, Jay Savla,
F
A. Raghunath, Ravindra Kumar, A. Deb Kumar, Diran
Bhardwaj, D.S. Mahra, Pragyan P. Sharma, Rupesh Gupta,
Mandakini Sharma, P.V. Yogeswaran, Gautam Dhamija, V.N.
Raghupathy, Sumita Hazarika, D.N. Mishra, Vibha Datta
Makhija,
V.G.
Pragasam,
S.J.
Aristotle,
Praburamasubramanian, Tarjit Singh, Manjit Singh, K.K. Gupta,
G
Pramod Dayal, Sushil Kumar Jain, B.V. Balaram Das, Vijay
Panjwani, Edward Belho, Sentikumla Jamir, Asha G. Nair,
Abhinav Ramkrishna, Milind Kumar, Bhavanishankar V. Gadnis,
B. Sunita Rao, M.J. Paul, Sudarsh Menon, T.A Khan, B.K.S
Prasad, S. Mukherjee, Satyabrata Panda, Nandini Gore,
H
496
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A Hemantika Wahi, Aparna Bhat, Anuj Casfleino, Jyoti
Mendiratta, R.K. Gupta, S.K. Gupta, M.K. Singh, Shekhar
Kumar, Ranjan Mukherjee, S. Bhowmick, S.C. Ghosh, Aruna
Mathur, Y. Khan for the appearing parties.
B
c
D
E
The Judgment of the Court was delivered by
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;"
F
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
G 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
H was alleged that these decisions were contrary to the
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 497
RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]
provisions of Articles 14 and 21 of the Constitution and also
A
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.
8
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
C
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
D
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
E
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
F
Movements on Hazardous Wastes and their Disposal was
adopted on 22nd March, 1989. It was the grievpnce 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
G
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
procedur~s with regard to hazardous wastes. Some of the
H
' A
B
c
D
E
F
G
H
498
SUPREME COURT REPORTS
[2012] 6 S.C.R.
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 minimiz.e 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;
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 499
RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]
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."
A
B
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
C
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.
D
E
6. In the Writ Petition various instances were provided of
F
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
G
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
H
500
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A 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
B 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.
c 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
0 the writ p~tition, the same are reproduced hereinbelow :-
E
F
G
H
"(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
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 501
RES. POLICYv. UNION OF INDIA[ALTAMAS KABIR, J.]
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 deci~ion 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?
A
B
c
D
E
F
G
H
502
A
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SUPREME COURT REPORTS
[2012] 6 S.C.R.
(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."
c
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
D 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
E 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
F 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
G 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
H Stations and also as to how to deal with the containers lying
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 503
RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]
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
A
to inquire into the matter, which resulted in the appointment of
B
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
c
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
D
how the said stock was to be cleared from where they were
lying. This Court was cif 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 l)O 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
E
F
the same at the risk, cost and consequences of the importer. It
G
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
H
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A 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
B 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
C .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
D 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
E 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
F 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
G 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
H import of waste oil purportedly in violation of the H.W.M.H.
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 505
RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]
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 cc:mtainers 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
A
B
to be adopted, with regard to ship breaking, to the Central
Pollution Control Board, to prepare a national inventory for c
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
0
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.
E
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
F
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 sarrie was
hazardous waste oil or not. After such examination it was found
G
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
H
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SUPREME COURT REPORTS
[2012] 6 S.C.R.
A 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
B 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
c 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
D 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.
E
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
F 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
G 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
H direction given on 5th January, 2005, on account of non-
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 507
RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]
payment of the cost of incineration by the importers. None of
A
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
B
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. c
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 showcause why proceedings for contempt should not be taken
D
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
E
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
F
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
G
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
H
508
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A 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
B 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
C 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.
D
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
E 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
F 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
G 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 -·
H and the State Pollution Control Boards. Accordingly, notice was •
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 509
RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]
given to all the State Governments and the State Control
A
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
B
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.