~c.+~ c~u.JCA(J. ..lvl'1P ~'I#'. vffl{!u,. Doccuments/1974/K/1974_K21.pdfINTRODUCTION F
INTRODUCTIONshodhganga.inflibnet.ac.in/bitstream/10603/76685/8/08_chapter 1.pdfINTRODUCTION 1.1...
Transcript of INTRODUCTIONshodhganga.inflibnet.ac.in/bitstream/10603/76685/8/08_chapter 1.pdfINTRODUCTION 1.1...
1
CHAPTER - I
INTRODUCTION
1.1 Introduction
The environment is outer physical and biological system in which man and other
organisms live as a whole. The components of the environment include: “its rocks,
minerals, soils and waters, its lands and their present and potential vegetations, its animal
life and potential for livestock husbandry and its climate”1. There is a close and
complicated interaction amongst these components which tend to produce some kind of
equilibrium in the scheme of nature which is called “ecological balance”. Changes in the
ecological system occur continuously through natural process and activities of man, but
the system has to a certain extent remarkable tendency to rebalance itself. This system
taken as a whole is useful to man. It is due to this usefulness that for fulfilling his
physical requirements, man is totally dependent on the environment2.
History is a witness to the fact that the man has been continuously struggling to
manage his environment so as to improve his well being. This capacity of the man
increased considerably following the industrial, scientific and technological revolutions.
The spread of diseases caused by the insect, rodent, water and food borne infections
which at one time could be attributed to the main causes of death has been practically
controlled. All these have been done without affecting the natural environment
surrounding the man. But as the time passed, new problems started coming to the
forefront and resulted in dis-balancing the nature. The population explosion, improper
management of wastes, affluent society with unlimited wants, increased radiations,
automobiles, greater use of energy, increased food production needs and some other
related developments have been responsible for creating the imbalance3.
1 United Nations Environment Programme: Annual Review -1980, 6 (UNEP: Nairobi, Kenya, 1981).2 Paras Diwan (ed.), Environment Protection 63 (Deep & Deep Publications Pvt. Ltd: New Delhi, 1997).3 Kailash Thakur, Environmental Protection Law and Policy in India 2 (Deep & Deep Publications Pvt.
Ltd: New Delhi, 1st Edn. 1997, Reprint 2007).
2
Justice Krishna Iyer quoted that, “Humanity is indivisible. So is Peace and
Security. Civilized man’s uncivilized aggression on Nature has made us realize that, like
humanity, ecology is indivisible. Peace and Salvation on earth are possible only if we are
conscious of ecological ethics”4.
Waste is generally defined as “something which is not put into proper usage at a
given time”5. The original definition of waste res derilicta6 corresponds to the concept of
'throw away' culture7. Waste can be categorized according to its origin as domestic waste,
industrial waste, hospital waste and e-waste. The word 'waste' refers to useless, unused,
unwanted or discarded material. In India, for regulatory purposes, waste is generally
classified into municipal solid waste and hazardous waste.
Man has always generated waste materials which are either by-product of his
activities, for which he could not find any use, or products which have reached the end of
useful life. Although this was going on throughout the ages, it was not a problem until
recent times because nature’s own waste treatment processes like dispersion, dilution and
degradation, which took care of these problems. Wastes dumped into the rivers were
washed away quickly and diluted to the point where no effect on water purity could have
been observed. Wastes left on land, decayed by spontaneous chemical and degradation
process thereby: the balance of nature was maintained.
The situation today is not so simple. The problem is due to both quantitative and
qualitative nature of the wastes we are producing. The natural degradation processes are
slow and can take care of only a limited amounts and specific kinds of wastes. The rivers
are not able to dilute and degrade sufficiently the vast amount of industrial effluents
dumped everyday into them. And one would have to wait a long time for heaps of junk
metallic material dumped to blend in with the earth’s crust again as ores. This will not
happen, because wastes are being dumped faster than nature can degrade and absorb
4 V. R. Krishna Iyer, Environmental Pollution and the Law 6 (Vedpal Law House: Indore, 1984).5 Concise Oxford Dictionary, 1616 (Oxford University Press: Oxford, 10th Edn., 2008).6 Meaning “the abandoned object” in Latin.7 Alexander Kiss, “The International Control of Transboundary Movement of Hazardous Wastes”,
Texas International Law Journal Vol. 26 (1991) p. 521.
3
them. Further, many of the modern waste materials are non-biodegradable. All these
cause serious threat to the eco system8.
The accumulation of waste creates problems for the local bodies and also causes
major sanitary problems which ultimately affect the health of the people. The densely
populated cities also lack proper sewage treatment facilities or safe disposal of solid
waste. The problem of untreated sewage being dumped into nearby water courses further
adds to the woes of the people. It has been reported that three fourth of surface water is
polluted and major percentage of such pollution is caused due to untreated sewage only.
In the absence of proper treatment facilities, both solid and liquid waste finds their way to
water courses and rivers because most of the major cities are situated on the bank of such
water bodies or rivers which creates severe pollution problem. Most of the municipal
bodies are not in a position to clear the garbage and the city wastes on regular basis.
Neither, they have the required man power nor, other required facilities. As a result of
which the left out rubbish gets accumulated which goes unattended for days together and
ultimately become the main factor in spreading various diseases9. Unless efforts are made
to improve the flow of resources to solid waste management and build up systems which
incorporate the basic requirements of a proper waste management practice, the problem
of waste will be further aggravated and cause environment health problems10.
Rapid industrialization has improved the quality of life by providing chemical
products, which have improved the health and life expectancy, increased the agriculture
production, enhanced the economic opportunities and improved the facilities for luxury
and comfort. However, it is also true that chemical residues, which are generated
unavoidably during the production of these chemicals, have posed unprecedented risks to
human health and environment. Several countries have already made great efforts to develop
effective technologies, legal and administrative framework for effective hazardous waste
8 S. Syed, “Solid and Liquid Waste Management”, Emirates Journal for Engineering Research Vol. 2,No. 2, (2006)19-20.
9 Dr. Sukanta K. Nanda, Environmental Law 363 (Central Law Publications: Allahabad, 1st Edn., 2007).10 M. C. Mehta, Lal’s Commentary on Water, Air Pollution and Environment (Protection) Laws, 118
(Delhi Law House: New Delhi, 4th Edn., 2000).
4
management. While substantial progress has been made, hazardous waste management is
still in developing stage in India11.
Over the years there have been tremendous advancements in the healthcare
system. However it is ironic that the healthcare settings, which restore and maintain
community health, are also threatening their well-being. Poor waste management
practices pose a huge risk to the health of the public, patients, professionals and
contribute to environmental degradation12.
Bio-medical waste is generated in different departments of the hospital and
college, research institutions, healthcare teaching institutes, rehabilitation centres,
clinics and nursing homes, laboratories, blood banks, autopsy centres, animal houses,
veterinary institutes and at home if healthcare is being provided there to a patient. The
waste produced in the course of healthcare activities carries a higher potential for infection
and injury than any other type of waste13. The last century witnessed the rapid
mushrooming of hospitals in the public and private sector, dictated by the need of the
expanding population and the advent and acceptance of disposables has made the
generation of hospital waste a significant factor in present hospitals. If we do not learn
the methods of disposing the waste generated in the process, the 'treatment' will cause the
disease. Then the very purpose of the medical inventions and scientific research will be
defeated. There is a duty to see that the medical waste will not develop into a monster
taking away the fruits of centuries of research and pushing the creatures into disaster14.
Electronic and Electrical waste popularly known as e-waste is one of the fastest
growing waste streams in the country. Electrical and Electronic waste products, do not
decompose or rot away15. Growth of information and communication technology sector has
11 A. K. Saxena and Yogesh Gupta, “Environmentally Sound Management of Hazardous Wastes”,Encyclopedia of Life Support Systems (EOLSS), available at: www.eolss.net/Eolss-sample AllChapter.aspx (visited on 24.01.2014).
12 J. Joseph and A. Krishnan, (2004), “Hospital waste management in the union territory of Pondicherry — Anexploration”, Available at, www.pon.nic.in/citizen/science/ppcc-new/joe.pdf, (visited on 7.11.2014).
13 J.E. Park, Hospital Waste Management. Park's Textbook of Preventive and Social Medicine.(Banarsi Das Bhanot: Jabalpur, 18th Edn., 2005).
14 Samatha Pulavarthi and Srinivasulu Pothi Reddy, “Biomedical waste management”, International Journalof A J Institute of Medical Sciences, Vol.1, No. l, (May 2012), p. 67-74
15 Ajeet Saoji, “E-Waste Management: An Emerging Environmental and Health Issue in India”, NationalJournal of Medical Research, Vol. 2 Issue 1, (Jan – March 2012), p.107.
5
enhanced the usage of the electronic and electrical equipment exponentially. Faster
obsolescence and subsequent up-gradation of electrical and electronic products, are forcing
consumers to discard old products, which in turn accumulate huge e-waste to the solid waste
stream. With the presence of deadly chemicals and toxic substances in the electrical and
electronic gadgets, disposal of e-waste is becoming an environmental and health nightmare.
Every year, thousands of old computers, mobile phones, television sets and radio equipment
is discarded, most of which either end up in landfills or unauthorized recycling yards16.
Solid waste management, which is already a mammoth task in India, is becoming
more complicated by the invasion of e-waste, particularly computer waste. E-waste from
developed countries finds an easy way into developing countries in the name of free trade
further complicating the problems associated with waste management17.
Today it has become clear that the health of the public and the surrounding
environment is put at risk as a result of past practices of uncontrolled waste dumping.
Some of these wastes have been proven to be extremely toxic and hazardous; the
uncontrolled dumping of such wastes has brought about the death of live stocks and an
increasing number of incidents have caused health hazards to human beings in many
countries. A potentially more serious risk to human health is due to contamination of
surface and ground water.
Once the environmental resources whether land or water gets contaminated with
hazardous components of waste, it is almost impossible to clean up these resources
economically. It is essential for both the regulatory authorities as well as industries to
manage hazardous industries under strict control. One of the instruments used for
controlling hazardous wastes, is introduction and enforcement of appropriate effective
legislation. To support and enforce the effective legal system, appropriate administrative
and organisational structure needs to be established. In order to ensure safe and scientific
disposal of hazardous waste specialized and engineered facilities are needed. Further,
16 Greenpeace study reveals E-Brands faltering on e-waste takeback in India, 04.08.2008. Available athttp://www.greenpeace.org /india/en/news/greenpeace-study-reveals-e-bra/, (visited on 22.08.2014).
17 Toxics Link, E-Waste in Chennai Time is running out, 2004, Available at: www.toxicslink.org.(Visited on12.12.2011).
6
constant monitoring is required to ascertain that disposal has been effective and there is
no more threat to human health and environment.
1.2 Background of the Study
Protection of environment is not a modern concept but has been in prevalence
from times immemorial. In olden days man and environment were said to be inseparable.
Ancient man never had an occasion to pollute environment except during the course of
satisfying his natural wishes and desires. He was always afraid of the natural environment
and was not daring enough to pollute it as is the usual trend in modern times.
Ancient Indians worshipped certain plants, trees, animals and birds. They were
also treating the earth, the sky, the sun, the planets, the air, water as the symbols of god.
They were in the belief that these gods were protecting them from the unexpected and
unknown evils. They never preferred to destroy the ecology and the eco-system except
for the preservation of their race at the level of minimum destruction. Keeping the
surroundings clean was recognized to be a customary duty of all ancient Indians and was
part of the first duty in the daily routine. Any destruction of nature and natural resources
was undertaken only as a last resort and for public welfare. They maintained the
ecological balance in its strict sense18.
In the medieval period conservation of environment did not receive much
attention. The Moghul emperors, though they were great lovers of nature and took delight
in spending their spare time in the lap of natural environment, made no attempts on forest
conservation. As regards the position of forest economy, the rural communities by and
large, enjoyed untrammelled use of forest and wastes in their vicinity. The waste and
forest lands were treated as open access resources19. Untrammelled use of forest and
other natural resources, however, did not mean that they could be used or misused by one
and all without any restraints. Rather they were quite effectively managed with the help
18 N. Maheshwara Swamy, Textbook on Environmental Law 7 (Asia Law House: Hyderabad, New Edn.,2004).
19 Chatterpati Singh, Common Property and Common Poverty: India’s Forests, Forest Dwellers and theLaw 10 (Oxford University Press: Delhi, 1986).
7
of the complex range of rules and regulations woven around the socio cultural features as
well as the economic activities of the local communities20.
During the British period, although there were certain general legislations that
may be traced to environmental protection (like the Indian Penal Code of 1860), but there
have been few specific legislations in the mid nineteenth century which addressed
specific issues of pollution control. The Shore Nuisance (Bombay and Colaba) Act, 1853
concerning water pollution is one such example. The River Boards Act of 1956 and
Factories Act of 1948 also addressed certain aspects of protecting the environment, such
as regulation and development of inter-state rivers as well as waste disposal21. Though
the critics pointed out that the British enacted these legislations not with the object of
protecting the environment but with the aim of earning revenue for them, it should be
regarded as the first step towards the conservation of natural resources.
After independence considerable developments were made for the protection of
the environment. Under the Indian Constitution Articles 39(b), 47, 48 and 49 contains
supplementary provisions to conserve the natural resources and protect the natural
environment22. The year 1972 is a landmark in the history of environmental management
in India. It was the year in which the United Nations Conference on Human Environment
was held at Stockholm23. The views expressed at the Stockholm conference formed a
20 Ramachandra Guha, The Unquiet Woods-Ecological Change and Peasant Resistance in the Himalaya87 (Oxford University Press: Delhi, 1989).
21 Sanjay Upadhyay and Videh Upadhyay, Handbook on Environmental Law – Environment Protection,Land and Energy Laws, 7 (Vol. 3, Lexis Nexis Butterworths: New Delhi, 1st Edn., 2002).
22 Article 39 (b) “that the ownership and control of the material resources of the community are sodistributed as best to subserve the common good;”Article 47 “The State shall regard the raising of the level of nutrition and the standard of living of itspeople and the improvement of public health as among its primary duties and, in particular, the Stateshall endeavour to bring about prohibition of the consumption except for medicinal purposes ofintoxicating drinks and of drugs which are injurious to health”.Article 48 “The State shall endeavour to organise agriculture and animal husbandry on modern andscientific lines and shall, in particular, take steps for preserving and improving the breeds andprohibiting the slaughter, of cows and calves and other milch and draught cattle”.Article 49 “It shall be the obligation of the State to protect every monument or place or object ofartistic or historic interest, declared by or under law made by Parliament to be of national importance,from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be”.
23 The United Nations Conference on Human Environment was held at Stockholm from 5 to 16 June,1972. It laid down 26 principles, which should be guidelines for all the nations in implementation ofEnvironmental Law.
8
core part of the basic environmental philosophy of India that found expression in various
governmental policy pronouncements in subsequent years.
In the year 1976, the forty second Amendment to the Constitution inserted two
new Articles in Part IV and Part IV-A. The newly added Article 48-A directs the state
that, “the State shall endeavour to protect and improve the environment and to safeguard
the forests and wildlife of the country”. In the newly added part, Part IV-A, a list of
fundamental duties of citizens of India was prescribed. Article 51-A consists of ten duties
of which clause (g) directs that it shall be a fundamental duty of a citizen of India “to
protect and improve the natural environment including forests, lakes, rivers and wildlife
and to have compassion for living creatures”.
In the later part of the last century, the Parliament has enacted three major anti-
pollution laws dealing with one or the other aspects of the environmental pollution24.
These are Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and
Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986. The Water Act
passed by the Parliament to prevent and control of water pollution, the Air Act passed by
the Parliament provides for prevention, control and abatement of air pollution. The
Environment (Protection) Act is the most comprehensive Act relating to environment
pollution. It provides for protection and improvement of environment and prevention of
hazards to human beings, other living creatures, plants and property.
Subsequent to these anti-pollution legislations, the Parliament has also framed
other legislations which are supportive to the mandate of anti-pollution legislations. The
first of its kind is the Public Liability Insurance Act, 1991, which provides for public
liability insurance for the purpose of providing relief in cases of industrial accidents.
Secondly, the Municipal Solid Wastes (Management and Handling) Rules, 2000, the
Hazardous Wastes (Management, Handling and Transboundary Movements) Rules,
2008, the Bio-Medical Waste (Management and Handling) Rules, 1998 and the E-Waste
(Management and Handling) Rules, 2011 which have been framed with the object to
control and regulate the solid wastes, hazardous wastes, bio-medical waste and e-waste.
24 It is significant to note that there are over 200 central and state statutes that have some bearing onenvironmental protection, though in most cases, environmental concern is merely incidental to the lawsprinciple object.
9
Apart from the legislative framework, the judiciary has contributed several
principles and doctrines for environmental protection. Some of these principles are self
explanatory and applied as a preventive mechanism, while others are evolved as a
compensatory one. The principle of “Absolute Liability” was evolved in M.C. Mehta v.
Union of India25, which is popularly known as the “Oleum Gas Leakage Case”.
According to this rule, “once the activity carried on is hazardous or inherently dangerous,
the person carrying on such activity is liable to make good for the loss caused to any
other person by his activity irrespective of the fact, whether he took reasonable care while
carrying on his activity”.
In Vellore Citizen’s Welfare Forum v. Union of India26, the court expressed the
“Polluter Pays Principle” and declared that, “Remediation of the damaged environment is
part of the process of ‘Sustainable Development’ and as such the polluter is liable to pay
the cost to the individual sufferers as well as the cost of reversing the damaged ecology”.
The “discharge of pollutants, which are potentially harmful, must be controlled, even in
the absence of specific data concerning it” known as “Precautionary Principle” which
was stated in Andhra Pradesh Pollution Control Board v. M.V. Nayudu27, by the
Supreme Court. This is also stated in the “Rio Declaration” Principle 1528.
The “Principle of Highest Safety Standards” was propounded by the Supreme
Court in Oleum Gas Leakage Case29. According to this rule, since the activities of the
hazardous industries are dangerous, they must be conducted with the highest standards of
safety. In M.C. Mehta v. Kamalnath30, the Supreme Court has expressed the “Doctrine of
Public Trust” and held that, the “State as a trustee is under a legal duty to protect the
natural resources, which are by nature meant for public use and enjoyment”.
25 AIR 1987 SC 1086 at 1089.26 1996 (5) SCC 647 at p.658.27 AIR 1999 SC 812, at 820.28 Principle 15, In order to protect the environment, the precautionary approach shall be widely applied
by States according to their capabilities. Where there are threats of serious or irreversible damage, lackof full scientific certainty shall not be used as a reason for postponing cost-effective measures toprevent environmental degradation. Available at: http://www.unep.org/Documents. Multilingual/Default.asp?documentid=78&articleid=1163 (Visited on January 18, 2014).
29 M.C. Mehta v. Union of India, AIR 1987 SC 1086. at 1099.30 (1997) 1 SCC 388.
10
In Indian Council for Enviro-Legal Action v. Union of India31, the Supreme Court
emphasized the Doctrine of “Sustainable Development” which means, “there should not
be development at the cost of environment and vice-versa, but there should be development
while taking due care and ensuring the protection of environment”. In, the “Doctrine of Inter-
generational Equity” every generation owes a duty to all succeeding generations to develop
and conserve the natural resources of the nation in the best possible way32.
1.3 Review of Literature
There are several books, dissertations and articles written on environmental
protection, hazardous and solid waste management. For the purpose of the study, the
authoritative primary sources of information have been collected from the Indian statutes
mainly, Environment (Protection) Act 1986, Indian Penal Code 1860, Civil Procedure Code
1908, Criminal Procedure Code 1973, The Air (Prevention and Control of Pollution) Act 1981,
The Water (Prevention and Control of Pollution) Act 1974, The Water (Prevention and
Control of Pollution) Cess Act 1977, The Public Liability Insurance Act 1991, Constitution
of India 1950, the Municipal Solid Wastes (Management and Handling) Rules 2000, the
Hazardous Wastes (Management, Handling and Transboundary Movement) Rules 2008, the
Bio-Medical Waste (Management and Handling) Rules 1998 and the E-Waste (Management
and Handling) Rules, 2011. The other persuasive primary sources of information extracted
for the research is from various International Conventions and declarations such as
Stockholm Declaration 1972, Rio Declaration 1992 and The Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989.
The secondary sources of information has been taken from various committee reports
such as Pitambar Pant Committee on Human Environment 1972, National Committee on
Environmental Planning and Co-ordination which was established in the year 1972,
N. D. Tiwari Committee33 and Mr. Asim Burman Committee Report34. The tertiary sources
of Information have been collected from books, publications, journals and articles.
31 (1996) 5 SCC 281.32 State of Tamilnadu v. Hind Stone AIR 1981 SC 711.33 “Report of the committee for recommending legislative measures and administrative machinery for
ensuring environmental protection”, (popularly known as Tiwari Committee Report), p. 19-24 (1980).
11
The book titled “Environmental Protection Law and Policy in India” by Kailash
Thakur (2007)35 highlights the sources and effects of environmental pollution as well as
the legal mechanism for its control and this book sets-out to provide a broad examination
of environmental law and policy in India. But it does not focus the areas relating to
hazardous and solid wastes management laws in India.
The significant literature by Indrajit Dube (2007)36 an attempt has been made to
analyze the legislative and judicial responses in India towards imposition of liability upon
polluters for violation of environmental laws of the country. This book seeks to find the
answer of the question, in case of pollution, who is responsible for the pollution, i.e., how
is the onus to be fixed on the polluter and how is his liability to be quantified. The
perspective of the book is based on Indian Law, but reference to other jurisdictional laws
and International instruments have been made at appropriate places. The literature does
not comprehensively analyses the environmental protection and the hazardous and solid
waste management laws in India.
The book “Environmental Law in India” authored by P. Leelakrishanan (2005)37
is an exhaustive study on the growth of environmental law in India. This book highlights
the various aspects of environmental regime-law of public nuisance, constitutional
mandates for environmental protection, control of pollution, judicial review of decisions
affecting the environment and impact assessment processes. But the Indian law relating
to management of hazardous and solid wastes has not been analyzed.
In “Environmental Status of India” edited by Sukumar Devotta and C. V. Chalapati
Rao (2008)38 deals with various pertinent issues and suggest measures to mitigate the
harmful effects of environmental pollution. It also deals with the different sources and
34 The object of the committee is to examine all aspects of urban solid waste management in class-I citieshaving population over one lakh. It was constituted by the Supreme Court in Almitra H. Patel v. Unionof India (1998) 2 SCC 416.
35 Kailash Thakur, Environmental Protection Law and Policy in India 2 (Deep & Deep Publications Pvt.Ltd: New Delhi, 1st Edn., 1997, Reprint 2007).
36 Indrajit Dube, Environmental Jurisprudence: Polluter’s Liability, (Lexis Nexis Butterworths:New Delhi, 1st Edn., 2007).
37 P. Leelakrishanan, Environmental Law in India, (Lexis Nexis Butterworths: New Delhi, 2nd Edn., 2005).38 Sukumar Devotta and C.V. Chalapati Rao, Environmental Status of India (Atlantic Publishers and
Distributors (P) Ltd: New Delhi, 1st Edn., 2008).
12
types of air pollution, the status of air quality, the concerns and inadequacy in
management and control and their related health impacts. Further this book exclusively
deals with the problem of waste water generated by industries and municipal sewage.
This book on solid and hazardous waste categorizes the types of waste generated and
suggests different treatment options thereof. The challenge of the disposal of hazardous
wastes have been discussed, but does not deal with the legal framework of municipal
solid wastes management rules and hazardous solid wastes management rules.
In the book, “Environmental Law” by P. S. Jaswal and Nistha Jaswal39covers the
various aspects of environmental protection laws. It traces the genesis of the problem of
the environmental pollution and deals with various common law remedies and statutory
remedies to protect the environment. Various constitutional provisions aimed at
protecting the environment have been discussed. The laws relating to management of
hazardous and solid waste have been discussed, but not in detail, particularly the law
relating to E-waste management being not touched and no critical analysis being made.
Prof. M. P. Jain, “Indian Constitutional Law”40, Prof. Kailash Rai, “The Constitutional
Law of India”41 and J.N. Pandey, “The Constitutional Law of India”42, the thorough study
reveals that they were not giving adequate importance to analyze environmental protection in
particular hazardous and solid waste management. The provisions for environmental
protection as mentioned under Directive Principles of State Policy43 and Fundamental
Duties44 were not critically analyzed.
An attempt has been made to review the literature available related to solid waste
management. It was found that maximum literature was written in the form of articles on
various aspects of solid waste management. In a book “Solid Waste Management” by
39 P. S. Jaswal and Nistha Jaswal, Environmental Law (Allahabad Law Agency: Haryana, 3rd Edn., 2009).40 Prof. M. P. Jain, Indian Constitutional Law (Lexis Nexis Butterworths, Wadhwa: Nagpur, 5th Edn., 2009).41 Prof. Kailash Rai, The Constitutional Law of India (Central Law Publications: Allahabad, 8th Edn., 2009).42 J. N. Pandey, The Constitutional Law of India, (Central Law Agency: Allahabad, 46th Edn., 2009).43 Article 48-A: The State shall endeavor to protect and improve the environment and to safeguard the
forests and wild life of the country.44 Article 51 A (g): It shall be the duty of every citizens of India to protect and improve the natural
environment including forests, lakes, rivers and wild life and to have compassion for living creatures.
13
Subhash Anand45 deals with waste generation, characteristics of municipal solid waste,
collection and storage of garbage and the transportation and disposal of solid wastes.
It also analyses the perception and participation of people with regard to solid waste
management system. It covers whole urban territory of Delhi where services are being
mainly provided by Municipal Corporation of Delhi, New Delhi Municipal Council and
Delhi Cantonment Board but it does not extend to whole of India. This book does not
analyze elaborately the legal framework of the solid waste management. Further it does
not focus the rural areas solid waste management system.
In an article “Solid Waste Disposal and the Environment: A Review” by
Chakrabarty et al., (1995)46 critically examined the conventional methods of disposal of
waste like landfill, incineration, composting taking into account their environmental cost.
According to them an aerobic decomposition method is more suitable for urban areas as it
may be useful also for solving the energy problems.
In another article “Regulation and Management of Municipal Waste: Indian
Scenario”, Khan (2004)47, has highlighted the present regulations and management
practices of solid waste management in Indian scenario. He concluded that entire system
of waste management in country is outdated, unscientific and highly inefficient. Improper
solid waste management practices give rise to health and environmental problems, so
environmental and health impact assessment must be there. Twenty two types of diseases
are associated with improper waste management. He recommended that one percent of
the project investment of municipal solid waste management may be spent on
environment and health impact assessment.
In a research study conducted by Gangadharan (2005)48, on “utilization of health
services in urban Kerala”, he found that about 64 percent of urban dwellers disposed their
waste by burning, while 47.5 percent slum dwellers were throwing the waste in seashore
45 Subhash Anand, Solid Waste Management, (Mittal Publications: New Delhi, 1st Edn., 2010).46 Chakrabarty P., et al., “Solid Waste Disposal and the Environment: A Review”, Indian Journal of
Environmental Protection Vol. 15, No. 1, (1995), 39-43.47 Khan, Mohsin U. “Regulation and Management of Municipal Waste: Indian Scenario”, National
Institute of Science Technology and Development Studies- News, Vo.6, No.1 (2004), 41-50.48 Gangadharan. K, Utilization of Health Services in Urban Kerala- A Socio-Economic Study, (Serials
Publications: New Delhi, 1st Edn., 2005).
14
causing serious environmental problems. He further noticed the unhygienic and
unhealthy working conditions of low classes, expose them to a variety of communicable
diseases, occupational diseases, injuries etc., whereas the upper classes are mostly free
from these health problems due to their better living and working conditions.
In an article titled “Solid Waste Management in India” by Faisal Zia Siddiqui and
Khan M. Emran49 they argued that, although there is an adequate legal frame works
existing in the country to address solid waste management issues, what is lacking is its
implementation. Likely reasons for poor implementation could be a combination of
social, technical, institutional and financial issues. Public awareness, political will and
public participation is essential for the successful implementation of the legal provisions.
In the research study conducted by Ranjith Kharvel Annepu (2012)50 on
“Sustainable Solid Waste Management in India” has examined the present status of waste
management in India, its effects on public health and the environment and the prospects
of introducing improved means of disposing municipal solid waste in India. The study
also found that open burning of solid wastes and landfill emits nearly 22000 tons of
pollutants per year into the air in the city Mumbai alone. This report proposes a waste
disposal system which includes integrated informal recycling, small Scale
Biomethanation, Mechanical Biological Treatment (MBT) and Refuse Derived Fuel
(RDF)/Waste-to-Energy Combustion (WTE).
In an article “Solid and Liquid Waste Management” by S. Syed51 the author
reviews the history of solid and liquid waste operations and summarizes the current
environmental monitoring program and its major findings. Various problems of wastes in
past and present, environmental ecology, general aspects of recycling and materials
recovery are defined.
49 M. S. Bhatt and Asheref Illiyan, Solid Waste Management - An Indian Perspective, (Synergy BooksIndia: New Delhi, 1st Edn., 2012).
50 Available at: http://www.academia.edu/2077298/Sustainable_Solid_Waste_Management_in_India,(Visited on 10.02.2014).
51 S. Syed, “Solid and Liquid Waste Management”, Emirates Journal for Engineering Research, Vol. 2,No.2 (2006)19-36.
15
In an article “Municipal Solid Waste Management in Indian Cities – A Review”
by Mufeed Sharholy et al.,52 an attempt has been made to provide a comprehensive
review of the characteristics, generation, collection and transportation, disposal and
treatment technologies of municipal solid waste practiced in India. The study pertaining
to municipal solid waste management for Indian cities has been carried out to evaluate
the current status and identify the major problems. Various adopted treatment
technologies for municipal solid waste are critically reviewed, along with their
advantages and limitations. The study is concluded with a few fruitful suggestions.
In an article “Hazardous Waste Management in India” by B. V. Babu and
V. Ramakrishna53 focuses on the basic steps involved in the comprehensive hazardous
waste management. The physical models developed by the authors for ranking of
Treatment, Storage and Disposal Facility (TSDF) sites based on the guidelines available
are discussed. The current status in India pertaining to generation of hazardous waste and
the TSDF sites is also discussed.
In another article “Industrial Hazardous Waste Management Strategies – Case
Studies” by R.M. Venkatesh and J.L. Thakker (2009)54 deliberates on how the future lies
in reduction of hazardous waste by techniques of Recycle and Reuse for Sustainable
Development. Issues related to leachate management are also addressed.
In a book titled “Bio-Medical Waste and the Law – A Referral Guide” by Dr. S.
V. Joga Rao (2004)55 highlights the categories of bio-medical wastes and its impact on
health and environment.
52 Mufeed Sharholy et al., “Municipal Solid Waste Management in Indian Cities – A Review”, WasteManagement, Vol. 28 (2008) 459-467, available at: www.sciencedirect.com (Visited on 08.01.2014).
53 B.V. Babu and V. Ramakrishna, “Hazardous Waste Management in India”, Available at:http://citeseerx.ist. psu.edu /viewdoc/download? doi=10.1.1.10.8335&rep=rep1&type=pdf (Visited on10.02.2014).
54 R.M. Venkatesh and J. L. Thakker, “Industrial Hazardous Waste Management Strategies – CaseStudies” (July-2009), available at: http://www.yumpu.com/en/document/view/10829999/4thakker-industrial-hwmpdf-answai-conf-2009, (visited on 10.02.2014).
55 Dr. S. V. Joga Rao, Bio-Medical Waste and the Law – A Referral Guide (legalaxy: Banglore, 1st Edn., 2004).
16
In an article “Law Relating to Biomedical Waste Management in India – An
Analysis” by Dr. Gurpreet K. Pannu (2005-06)56 analyses the law relating to the bio-
medical wastes in India and the role of judiciary in the preservation of the environment.
In an article “E-Waste Management in India” by Nainsi (2012)57 highlights the
hazards of e-wastes, its effects on the environment and human health, the need for its
appropriate management, options that can be implemented and its management in India.
In another article “Electronic Waste Management in India – Issues and Strategies” by
Kurian Joseph (2007)58 highlights the associated issues and strategies to address this
emerging problem, in the light of initiatives in India. The paper presents a waste
management system with shared responsibility for the collection and recycling of
electronic waste amongst the manufacturers / assemblers, importers, recyclers, regulatory
bodies and the consumers. In a review article “E-Waste Management: An Emerging
Environmental and Health Issues in India” by Ajeet Saoji (2012)59 presents the associated
issues and impact of the emerging problem of e-waste, in the light of initiatives in India.
In all the earlier researches, they have analysed all these concepts from the
scientific angles. There is a dearth of study on this area from the legal perspectives.
So the researcher ventures into legal areas of hazardous and solid wastes management
and also has pointed out the bottlenecks in these legislations through this research.
The researcher also pointed out the practical difficulties and blatant errors in these
legislations. The researcher has been critically evaluated all these laws as to whether the
objects of these legislations have been fulfilled or not.
56 Dr. Gurpreet K. Pannu, “Law Relating to Biomedical Waste Management in India – An Analysis”,Journal of the Legal Studies, Vol. 36 (2005-06) 92-102.
57 Nainsi, “E-Waste Management in India”, Journal of Information systems and Communication, vol. 3(2012) 261-264.
58 Kurian Joseph, “Electronic Waste Management in India – Issues and Strategies”, EleventhInternational Waste Management and Landfill Symposium (2007) available at: http://unpan1.un.org/intradoc/groups/public/documents/ apcity/unpan037140.pdf. (Visited on 11.02.2014).
59 Ajeet Saoji, “E-Waste Management: An Emerging Environmental and Health Issues in India”,National Journal of Medical Research, Vol. 2 (2012) 107.
17
1.4 Scope and Limitations of the Study
The researcher is intended to analyze the efficacy and adequacy of existing laws,
rules, notifications and its enforcement relating to environment protection and waste
management. The researcher has made an attempt to explore the areas with respect to the
legislations enacted during the pre-independence era and post-independence era, its
implementation, enforcement and handling of hazardous, solid, bio-medical and e-waste.
The limitation of this research is that, the research analyses only the legal perspectives of
the hazardous and solid waste management with respect to the Indian scenario along with
comparison of developed and developing nations.
1.5 Significance of the Study
The population explosion, exuberant growth of urbanization, decline of cultivable
lands, growing number of vehicles on the road, deforestation, industrialization, improper
management of waste, changing pattern of consumption, changing pattern of life and
exploitation of natural resources by human activities have all threatened our basic
survival on earth. The present day environment causes health hazards like, lungs problem
for which dust is the cause, skin allergy for which the sun and the ozone layer are the
cause, kidney problems for which the ground water becomes the main reason and many
other chronic diseases for which there is no permanent cure.
People are being deprived of their legitimate right to an unpolluted environment.
They are forced to drink polluted water, breathe polluted air and live in polluted
atmosphere. The improper management of hazardous and solid wastes causes physical,
biological and chemical threat to man. They threaten the ecological balance on which we
depend for the sustenance. They pose a threat to social welfare. Exploitation of natural
resources in an unrestricted manner will cause loss of biodiversity, thereby endangering
species. If proper steps are not taken at present to curb and control the improper
management of hazardous and solid wastes, mankind will meet the fate of the civilized
people who built Harappa and Mohanjadero. Hence, the study is a significant one in the
attempt of saving mankind and the earth against environmental pollution and improper
management of hazardous and solid wastes.
18
1.6 Objectives of the Study
The objectives of the present research is to identify some of the major issues, forces
and factors that are central to the problem of protection, conservation and management of
the environment.
i) To examine critically the various laws dealing with the environment protection,
hazardous and municipal solid waste management.
ii) To evaluate the efficacy and adequacy of the existing laws in combating the
environmental degradation.
iii) To study the role of the judiciary in relation to environmental protection
legislation and its interpretation.
iv) To analyze the effective role played by the enforcement machinery in
implementing laws relating to environmental protection and hazardous and
municipal solid waste management.
v) To analyze the nature and magnitude of hazardous and municipal solid waste
management.
vi) To examine the present method of segregation, collection, transportation and
disposal of hazardous and municipal solid waste.
vii) To analyse the existing rules and regulations pertaining to the management
and handling of bio-medical Waste for their efficacy, especially in the context
of enforcement and feasibility.
viii) To examine the present status of waste management laws in India, its effects on
public health and environment.
1.7 Research Questions
With the above stated objectives, the following questions are formulated.
i) Whether the legislative measures designed for environmental protection,
hazardous and municipal solid waste management have succeeded in achieving
the objectives?
19
ii) Whether the existing mechanism for environmental protection, hazardous and
municipal solid waste management needs to be replaced by a more effective one?
iii) Whether the criminal sanction theory has proved effective in deterring the
polluters from polluting the environment?
iv) Whether the existing laws regulating environmental protection, hazardous and
municipal solid waste management needs a thorough overhauling?
v) What precise role the judiciary has played in protecting and safeguarding
environment?
vi) Whether the existing municipal solid and industrial hazardous waste management
system protect public health, environment and natural resources?
1.8 Research Hypotheses
The hypotheses of the present study are:
1. The legislations regarding the environmental protection and proper management of
hazardous and municipal solid wastes are neither comprehensive nor adequate.
2. The cost effective mechanism provided under the hazardous waste management rules
hinders the rules from achieving its object.
3. The poor implementation of the solid waste management rules still keeps the country
in a polluted atmosphere.
4. The Bio-Medical Waste (Management and Handling) Rules suffer from certain basic
shortcomings. As a result they have become ineffective in protecting the environment
generally and health of the people in particular.
5. Non-awareness and inadequacy of efficient law on e-waste management could not
mitigate the environmental pollution of e-waste.
1.9 Research Methodology
The research work is doctrinal in nature. Accordingly to suit the nature of
research, various research methods such as analytical method, evaluative method and
comparative method are employed. Analytical method is used to analyze various
20
provisions of the Indian Constitution, all other legal provisions relating to environmental
protection, hazardous, solid waste management and judicial decisions. The researcher has
applied the evaluative method, in order to find out the efficacy and adequacy of the
existing laws in combating the environmental degradation. Comparative method is also
applied mainly to compare the waste management laws in India with other countries.
In this research, for the purpose of exploring and identifying various statutory
provisions and judicial decisions, web based legal data bases were relied. As a part of the
doctrinal research the researcher has collected data from different sources (i.e. primary
and secondary). Under primary sources, substantial and relevant authority has been
availed. Under the secondary sources, the researcher has collected published and
unpublished60 persuasive data from multiple sources.
1.10 Chapterisation
The entire research work has been divided into eight chapters.
The first chapter is “Introduction” which deals with the components of the
environment, close relationship between man and environment, the concept of the
environmental protection, the problem of wastes in the present and the past, how the
accumulation of the waste causes major sanitary and health problems to the people and
the sincere efforts of the government to combat problems causing environmental
degradation, the evolution of the law to handle pollution and other environmental
problems in India, principles and doctrines evolved by the Supreme Court for protection
of the environment. It also covers the methodology adopted for this thesis.
The second chapter titled “The Indian Constitution and Environmental
Protection” a detailed discussion is made to analyze the various Constitutional mandates
which have aimed to conserve and safeguard the environment. The obligations of the
State as well as the citizens towards protection of the environment, the right to life
guaranteed under the constitution which includes right to livelihood, right to clean
drinking water, right to live in a healthy environment, right to know environment etc., are
discussed. The special attention provided by the Indian judiciary for protection of
60 Published and Unpublished data includes Books and Articles written by eminent authors and experts,discussion papers, edited collections, research papers and relevant internet sources.
21
environment with formulation of certain new principles and pronouncement of new
doctrines also has been analyzed.
The third chapter captioned “Common Law and Other Legislative Measures”
looks at the matter from two different perspectives, namely, common law aspects of
environmental law and the statutory control of environmental pollution. It has been
shown that the common law remedies for pollution control exist as additional remedies to
the one provided under the specific legislations concerning environmental protection. The
chapter also summarizes the relevant provisions of earlier legislations concerning
environmental protection and also makes an indepth insight into the recent legislations
enacted to prevent and control environmental pollution. The chapter involves a critical
examination of the provisions of the Water (Prevention and Control of Pollution) Act
1974, the Air (Prevention and Control of Pollution) Act 1981 and the Environment
(Protection) Act 1986 etc. An effort has been made to point out the loopholes existing in
the legislations under the study and offer suggestions to strengthen the legal control of
environmental pollution.
In the fourth chapter “Municipal Solid Wastes Management” discuses the
conceptual framework, characterization and classification of the solid waste, physical and
chemical composition of waste, impact of improper management. The Generation,
collection, segregation and storage of municipal solid waste provided under the
Municipal Solid Wastes (Management and Handling) Rules, 2000 have been
analysed. In this chapter, the researcher also deals with the transportation, disposal and
processing methods of solid wastes. Further the chapter discusses with the role of rag
pickers. The chapter highlights judiciary’s role on the management of municipal solid
waste. It also covers the primary responsibility of local self- government institutions such
as panchayats and municipalities regarding the management of solid wastes.
In the fifth chapter titled “Hazardous Wastes Management”, the regulatory
definition of “Hazardous Wastes and Hazardous Substances” and its applicability,
identification, classification and characterization of hazardous wastes has been explained.
The effect of hazardous wastes on health and environment has been focused. The
transboundary movements of hazardous wastes, import and export of hazardous wastes
22
for recovery, reuse or recycling and illegal traffic are elaborately discussed with relevant
judicial pronouncements. Responsibilities of the occupier for handling hazardous wastes
and substances, authorization and cancellation powers of the SPCBs for handling
hazardous wastes are analysed. The operations involving Treatment, Storage and
Disposal Facilities (TSDF) of hazardous wastes, liabilities of the hazardous waste
generator, transporter and operator of TSDF under Hazardous Wastes (Management,
Handling and Transboundary Movements) Rules 2008 are analyzed comprehensively.
In the later part of this chapter deals with the categories of bio-medical waste, the
impact of bio-medical waste on health and environment, obligation of the occupier to
manage and handle bio-medical waste, the process of segregation, treatment and disposal
of bio-medical waste under the “Bio-Medical Waste (Management and Handling)
Rules 1998” has been critically evaluated. The role of the judiciary to conserve, protect
and preserve the purity and sanctity of environment has also analysed.
The sixth chapter “Electrical and Electronic Waste Management” deals with
the legal definition of the e-waste which includes computer and computer component
segments, the consumer electronics (Television Segments) and telecommunicating
segments. The various components of the e-wastes, how it generates in India and its
adverse effects on human health and environment, the pollutants and their occurrence in
waste electrical and electronic equipments are discussed. The transboundary movements
of hazardous e-waste under the Hazardous Wastes (Management, Handling and
Transboundary Movements) Rules 2008 and Management and Handling of E-Wastes
under the E-Wastes (Management and Handling) Rules 2011 are analyzed. The
responsibility of the State Pollution Control Board or the Pollution Control Committee
regarding monitoring of units recycling hazardous e-waste has been highlighted. In
addition to this India’s stand on liberalizing import rules and loopholes in the legislation
being critically analyzed.
The seventh chapter titled “Hazardous and Solid Wastes Management Laws in
Developed and Developing Countries – A Comparative Analysis”. In this chapter the
waste management and environment protection laws in India with developed and
developing nations, Environmental protection laws in developed countries especially
23
United Kingdom, United States of America, Germany and Singapore has been analysed.
Municipal solid wastes management in Asian countries, electrical and electronic waste
management in India and Switzerland, bio-medical waste management in Asian and
African countries and the problem of hazardous wastes management in developed and
developing countries has been comparatively analysed.
The eighth chapter “Conclusion and Suggestions” the researcher gives his own
concrete conclusion and pragmatic and remedial suggestions for strengthening the
efficacy of the existing legal mechanism for proper management of hazardous and solid
wastes.