DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

Hazardous Waste, Toxic Materials and Judicial Activism

SUBJECT

ENVIRONMENTAL LAW

Submitted To-

Bushra Qasmi

Submitted By-

HEMA NIKHITHA JYESTA

ROLL NO : 2013053

7th Sem, 4rd Year.

Table of Contents

1
Research Methodology ………………………………………………………………………3

Introduction: ……………………………………………………………………………. …..4

Hazardous Wastes, Toxic Materials and the Legal Framework…………..………………….5

Evolution of Environmental Jurisprudence through Judicial Activism:- ……………………6

Evolution and adoption of Doctrines and Principles for Environment Protection…………..7

International Legal Regime Governing Hazardous Waste………………………….……....12

Economic Development/Globalization and Stance of the Supreme Court…………………16

Shortcomings and Weaknesses in Policy Implementation:…………………………………17

Suggestions and Conclusion:……………………………………………………………….19

Bibliography………………………………………………………………………………..21

Subject: Environmental Law

2
Area: Waste Management
Topic: Hazardous Wastes, Toxic Materials and Judicial Activism
Objectives:
1. To understand the danger posed by the hazardous waste and toxic materials.
2. To examine the legal framework governing the treatment and disposal of such hazardous
waste and toxic materials in India
3. To examine International law governing the disposal and transboundary movement of
hazardous waste and the interface of municipal and international law.
4. To analyze and comprehend the key principles enunciated and adopted by the Indian
Courts to protect the environment through judicial activism.
5. To suggest measures to strengthen the policy and implementation front for disposal and
treatment of hazardous waste.
Research Questions:
1. What problems do the hazardous waste and toxic materials pose to the environment?
2. What is the legal framework on the disposal and treatment of hazardous waste and the
obligations cast upon on the producer?
3. What approach has the judiciary taken to deal with the problems caused by hazardous
wastes and toxic materials and the evolution of environmental jurisprudence with respect
to the topic?
4. What is the significance of the international conventions and treaties internationally and
on the municipal law in India?
5. What is the way forward for India to deal more effectively with the issue in respect of
balancing of interests to achieve sustainable development?

Introduction:

3
The toxic materials and hazardous wastes are a distinct area of study especially from the point of
environmental law because these substances by their very nature itself are very harmful to the
environment and its constituents in a very destructive way which is often irreparable. But, at the
same time they are also required as essential ingredients in a number of industries.
What was generally a self-sustaining system has been left vulnerable by the mindless
exploitation and utter disregard for the environment so much so that its very existence is at stake
now. This reality finally dawned on the scientists, environmentalist, government, policy makers
and a need was felt to regulate the activities both industrial and otherwise by creating a legal
regime backed by sanctions at one hand with strict compliance measures and a persuasive
awakening of the general masses for environment to make it better.
So, this represents a dilemma for the government especially developing countries like India
which lack sophisticated infrastructure and technology on how to resist the urge to go for rapid
growth through industrialization and take care of the environmental safeguards at the same time.
This is so because adhering to the environmental safeguards at times mean sacrificing on the
growth instantly though as generally it is rewarded with greater dividends in the long run.
So, despite this dichotomy a fair bit of concern and analysis has gone in addressing this situation
as the level of degradation in particular cases was so alarming and shocking that the policy
makers as well as the judiciary had to intervene and take ameliorating steps.The Government of
India notified Hazardous Waste (Management and Handling) Rules 1989 under the Environment
(Protection) Act 1986 which has been amended from time to time notably in 2000 and 2003.
Hazardous Waste is defined therein as any waste which by reason of any of its physical,
chemical, reactive, toxic, flammable, explosive or corrosive characteristics, causes danger or is
likely to cause danger to health or environment, whether alone or when in contact with other
wastes or substances. Here for this paper, hazardous and toxic have been used in the same sense.
Hazardous waste residue of production process may cause significant damage to environment
and human health and / or environment unless handled, stored, transported, treated and disposed
off scientifically using environmentally sound technologies. The improper and careless handling
of hazardous waste has all too often created problems for human health and environment.
Effective management and handling of hazardous waste is of paramount importance for
protection of human health and environment.

Hazardous Wastes, Toxic Materials and the Legal Framework:

The production and disposal of hazardous wastes and toxic materials have increased significance
and this can be gauged from the fact that The National Hazardous Waste Information System
(NHWIS) has been put up in place. It is an online database of more than 10,000 hazardous waste
generating industries, which has been recently set up. NHWIS is a compliance monitoring and an
enforcement tool by the Environment & Forest Informatics Division in close consultation with
Hazardous Substance Management Division (HSMD) of Ministry of Environment and Forests
MoEF.1

1
OECD, Environmental Compliance and Enforcement in India: Rapid Assessment, 3 Nov. 2006,

4
 The framework of current Indian environmental laws was created as a response to the Bhopal
Gas Tragedy in 1984.2 The Environment Protection Act (EPA), 1986 came into force soon
after the Bhopal Gas Tragedy and is considered umbrella legislation as it filled many gaps in the
then existing laws. Thereafter a large number of laws came into existence as the problems began
arising, for example, Handling and Management of Hazardous Waste Rules in July 1989.3
The Manufacture, Storage and Import of Hazardous Chemicals Rules of November 1989
spell out the responsibilities of those handling hazardous substances (other than hazardous
wastes). Under these rules, a hazardous industry is required to identify major accident hazards,
take adequate preventive measures and submit a safety report to the designated authority. In
August 1996 the central government framed the Chemical Accidents (Emergency, Planning,
Preparedness and Response) Rules. 4These rules require the centre to constitute a Central
Crisis Group (CCG) for the management of chemical accidents and to set up a quick response
mechanism termed as the crisis alert system. The rules also contemplate the setting up of crisis
groups at the state, district or local levels to assist the administration in prevention and control
measures.
There rules act in conjunction with the Wild Life (Protection) Act, 1972, the Water
(Prevention and Control of Pollution) Act, 1974, the Forest (Conservation) Act, 1980, the
Air (Prevention and Control of Pollution) Act, 1981, the National Environment Tribunals
Act, 1995, the National Environmental Appellate Authority Act, 1997, the Biodiversity Act,
2002 etc. These special acts have supplemented the provisions of Indian Penal Code, 1860 in
Chapter XIV of offences affecting the public health, safety, convenience, decency and morals;
the Criminal Procedure Code, 1973; the Easements Act; the Civil Procedure Code and other
such antiquated legislations.5

Complementing the above Acts is the Atomic Energy Act, 1982,(explicitly excluded from
Hazardous Waste Rules and covered under the Merchant shipping Act, 19586) which was
introduced to deal with radioactive waste. In 1988, the Motor Vehicles Act was enacted to
regulate vehicular traffic, besides ensuring proper packaging, labeling and transportation of the
hazardous wastes. Various aspects of vehicular pollution have also been notified under the EPA
of 1986. Mass emission standards were notified in 1990, which were made more stringent in
1996. In 2000 these standards were revised yet again and for the first time separate obligations
for vehicle owners, manufacturers and enforcing agencies were stipulated.7The Ministry of

2
Timothy Swanson, , Regulation, Enforcement, and Governance in EnvironmentalLaw: Contemporary
Developments in India and the UK,Abstract, Centre for Policy Research, New Delhi & University College London,
Faculty of Laws, Centre for Law & the Environment, New Delhi, 27-28 March 2009;
http://www.cprindia.org/eventupload/Agenda.pdf
3
Sheikh Wali Uz Zaman , Environemntal Law, 5th Feb, 2009, Article Base, http://www.articlesbase.com/law-
articles/environmental-law-757236.html
4
Shyam Divan, Legislative Framework and Judicial Craftmenship, http://www.india-
seminar.com/2000/492/492%20s.%20divan.htm
5
Justice Sunil Ambwani, Environmental Justice: Scope and access, Workshop on Sustainable Development for the
Sub-ordinate judiciary, August 19-21, 2006, http://districtcourtallahabad.up.nic.in/articles/environmental.pdf
6
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India ( Oxford University Press, 2nd edn.,
New Delhi, 2005) p. 514

5
MoEF., Central Pollution Control Board i.e. CPCB) and State Pollution Control Boards (SPCB)
together form the regulatory and administrative core of the sector.

Latest Development:
A fresh draft Notification of Hazardous Waste Management Rules was published on 28
September 2007 for seeking public comments. The title of the proposed Rules is ‘Hazardous
Materials (Management, Handling & Trans boundary Movement) Rules, 2007. The time for
providing objections/ suggestions on the said Draft Rules ended on 28 November 2007. The
proposed Draft Rules would repeal the HW Rules and amendments thereof. The comments on
the draft Notification have been received from various organizations and are still in the process
of being examined by the authorities. Further to the draft National Hazardous Waste
Management Strategy updated on 26 March 2009. One of the main objectives is to facilitate
implementation of the action plan brought out in ‘National Environment Policy 2006’ on
management aspects of hazardous waste, and to fulfill obligations under the Basel Convention.

Evolution of Environmental Jurisprudence through Judicial Activism:

The judiciary, a spectator to environmental despoliation initially, in the past 3 decades has
recently assumed the pro-active role of public educator, 8 policy-maker,9 super administrator,10
and more generally, amicus environment.11
The Supreme Court has elevated the ‘right to healthy environment’ to the status of a fundamental
human right under Article 21 of the Constitution in the process of progressive enrichment of the
environmental jurisprudence with principles like sustainable development, polluter pays, public
trust doctrine, precautionary principle and intergenerational equity. The constitution of a ‘green
Bench’ to adjudicate environmental matters in certain states is a significant step towards
improving the quality of environment at a time when India has been caught in a tussle between
developmental and sustainability issues.12 The Supreme Court has also relied more and more on

7
MoEF, Chapter 2 The legal and regulatory framework for environmental protection in India ,
http://www.envfor.nic.in/divisions/ic/wssd/doc2/ch2.html
8
E.g., M.C. Mehta v. Union of India, AIR 1992 SC 328 (court directions to broadcast and telecast ecology
programmes on the electronic media and include environmental study in school and college curricula).
9
E.g., S. Jagannath v. Union of India, AIR 1997 SC 811 (directions prohibiting non- traditional acquaculture along
the coast); M.C. Mehta v. Union of India, AIR 1996 (2) SCALE 92 (court directions for the introduction of unleaded
petrol vehicles).
10
E.g., T.N. Godavarman Thirumulkpad v. Union of India, AIR 1997 SC 1228 (judicial supervision over the
implementation of national forest laws); M.C. Mehta v. Union of India, 1992 (Supp.2) SCC 633 (directions in the
Ganga Pollution Case to riparian industries, tanneries and distilleries regarding abatement of pollution).
11
Shyam Divan, Legislative Framework and Judicial Craftmenship, http://www.india-
seminar.com/2000/492/492%20s.%20divan.htm
12
Raghav Sharma, ‘Green Courts in India: Strengthening Environmental Governance?’, 4/1 Law, Environment and
Development Journal (2008), p. 50, available at http://www.lead-journal.org/content/08050.pdf.

6
Article 21 of the Constitution and has given an expansive meaning to ‘environment’ taking
within its fold the quality of life13 as distinguished from a mere animal existence.14
Evolution and adoption of Doctrines and Principles for Environment Protection:
The various doctrines and principles developed by the judiciary to bring the guilty to the book
and ameliorate the environment are as follows:
Public nuisance:
The Supreme Court appreciated the necessity of sternness in environmental issues in Municipal
Council, Ratlam15 that arose out of a problem daily faced in our country. A residential locality
was subjected to extreme filth and stench. A complaint was instituted under the provisions of
Section 133 of the Criminal Procedure Code requiring the municipal corporation to carry out its
statutory duties under Section 123 of the M.P. Municipalities Act, 1961.It was held by the
Supreme Court that:
“Public nuisance, because of pollutants being discharged by big factories to the detriment of the
poorer sections, is a challenge to the social justice component of the rule of law.”
Absolute Liability:
A dramatic event occurred in Delhi as oleum gas leaked from the factory of Shriram Foods and
Fertilizers on 4th and 6th December 1985.16. The gas leak affected a large number of persons.
Memories of the Bhopal Gas Disaster that had occurred a year earlier were instantly revived.
The reports of all the committees appointed by the Supreme Court were unanimous in
concluding that the element of risk to workmen and the public could only be minimized, but not
totally eliminated. In this background, the Supreme Court suggested that the Government evolve
a National Policy for the location of toxic and hazardous industries and that it should set up an
independent centre with professionally competent and public-spirited experts to provide
scientific and technological inputs. The Supreme Court also recommended the setting up of
Environmental Courts to deal with situations of this kind.
The Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous
industry was an absolute and non delegable duty to the community to ensure that no harm results
to anyone on account of its activity. It is no answer to say that it had taken all reasonable care or
that the harm occurred without any negligence on its part. Thus, the Supreme Court evolved a
principle of absolute liability and did not accept any of the exceptions as mentioned in Rylands v.
Fletcher17 which enunciated the principle of strict liability.
Polluter Pays Principle:
13
Chhetriya Pardushan Mukti Sangarsh Samiti v. State of U.P., (1990) 4 SCC 449
14
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124
15
Municipal Council, Ratlam v. Shri Virdichan and Ors, (1980) 4 SCC 162
16
M.C. Mehta v. Union of India, (1986) 2 SCC 176
17
(1868) LR 3 HL 330

7
In Indian Council for Enviro-Legal Action18 the Supreme Court accepted the Polluter Pays
principle. In this case, some chemical factories in Bichhri (Udaipur District) produced hazardous
chemicals like oleum etc. These industries did not have the requisite clearances, licences, etc. nor
did they have necessary equipment for the treatment of discharged toxic effluents. Toxic sludge
and untreated waste waters resulted in the percolation of toxic substances into the bowels of the
Earth. The Supreme Court examined all the available material and concluded that the industries
alone were responsible for the damage to the soil, underground water and the village in general.
The Supreme Court held that as per the Polluter Pays principle:
“… once the activity carried on is hazardous or inherently dangerous, the person carrying on
such activity is liable to make good the loss caused to any other person by his activity
irrespective of the fact whether he took reasonable care while carrying on his activity. The rule
is premised on the very nature of the activity carried on.”
The Supreme Court cited with approval the following passage 19 pertaining to the Polluter Pays
principle: - “The Polluter Pays principle demands that the financial costs of preventing or
remedying damage caused by pollution should lie with the undertakings which cause the
pollution, or produce the goods which cause the pollution. Under the principle it is not the role
of Government to meet the costs involved in either prevention of such damage, or in carrying out
remedial action, because the effect of this would be to shift the financial burden of the pollution
incident to the taxpayer.”
The Supreme Court accepted the principle of absolute liability laid down in the Oleum Gas Leak
case and also approved the suggestion for setting up Environmental Courts.
Flexible application:
While applying the Polluter Pays Principle, the Supreme Court later expressed the view in that
compensation to be awarded must have some correlation not only with the magnitude and
capacity of the enterprise but also the harm caused by it. In Deepak Nitrite,20 while remanding
the matter to the High Court for reconsideration, the Supreme Court expressed the view that the
possibility of 1% of the turnover of the enterprise may be adequate compensation. In the
Calcutta Tanneries Case21, the Polluter Pays principle relating to relocation of industries was
applied with a direction to those relocated industries to pay 25% of the cost of land. Those who
did not pay for the cost of land were directed to be closed.

Sustainable Development and the Precautionary Principle:

18
Indian Council for Enviro Legal Action v Union of India, (1996) 5 SCC 281
19
Historic Pollution – Does the Polluter Pay? By Carolyn Shelbourn – Journal of Planning and Environmental Law,
August 1974. C.f. Shruti Rajagopalan, The Polluter Does not Pay Model, Master Thesis, August 10,2008, London,
http://www.emle.org/_data/Rajagopalan.pdf
20
Deepak Nitrite v. State of Gujarat & ors, (2004) 6 SCC 402

21
M.C. Mehta v. Union of India & Ors, (1997) 2 SCC 411

8
The concept of Sustainable Development was articulated and given effect to by the Supreme
Court in Vellore Citizens Welfare Forum.22 This concept first came to be acknowledged in the
Stockholm Declaration of 1972. It was subsequently given definite shape in 1987 by the World
Commission on Environment and Development in its report called “Our Common Future”.
In this case, about 900 tanneries in five districts of the State of Tamil Nadu were discharging
enormous amount of untreated effluent consisting of about 170 different types of chemicals into
agricultural fields, roadside, waterways and open land. About 35,000 hectares of land became
partially or totally unfit for cultivation. The water in the area became unfit for consumption and
irrigation purposes. In 1995, the Supreme Court gave directions whereby some of the industries
were required to set up effluent treatment plants.
The Supreme Court in Vellore Citizens recognized the Precautionary Principle, which is one of
the principles of sustainable development. It was said that in the context of municipal law, the
Precautionary Principle means: -
(a) Environmental measures - to anticipate, prevent and attack the causes of environmental
degradation. (b) Lack of scientific enquiry should not be used to postpone measures for
prevention of environmental degradation. (c) The onus of proof is on the actor, developer or
industrialist to show that his action is environmentally benign.
The introduction of the ‘onus of proof’ as a factor relevant for environmental protection was
developed for the first time in this case The Supreme Court passed two significant orders in this
case. One was for setting up an Environment Protection Fund in which pollution fine was to be
deposited. The other significant direction given by the Supreme Court was to set up “Green
Benches” in the High Courts.

Public Trust doctrine:

Another major principle accepted by the Supreme Court is the public trust doctrine. This doctrine
came up for consideration in the Kamal Nath case.23 The flow of the river Beas was deliberately
diverted because it used to flood Span Motels in the Kulu Manali valley in which a prominent
politician's family had a direct interest. The motel was also allotted protected forestland by the
State Government and had also encroached on protected forestland, which encroachment was
subsequently regularized. The Supreme Court used the public trust doctrine in this case to restore
the environment to its original condition. Roman law recognized the public trust doctrine
whereby common properties such as rivers, seashore, forests and the air were held by the
Government in trust for free and unimpeded use of the public. These resources were either
owned by no one (res nullious) or by everyone in common (res communious). Professor Joseph
L. Sax24 imposes three restrictions on governmental authorities as noted by the Supreme Court.
22
Vellore Citizens Welfare Forum v. Union of India & Ors, (1996) 5 SCC 647
23
3 cases, M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, (1999) 1 SCC 702, (2000) 6 SCC 213 and (2002) 3 SCC
653
24
Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review,Vol 68
Part 1, p.473

9
These are: (a) the property subject to the trust must not only be used for a public purpose, but it
must be held available for use by the general public. (b) The property may not be sold, even for
a fair cash equivalent. (c) The property must be maintained for particular types of uses.
It was noted that American Courts have also accepted the public trust doctrine. The Supreme
Court observed that the same has also become a part of our environmental jurisprudence.
Applying the public trust doctrine, the Supreme Court cancelled the lease of forestland granted to
Span Motels and the State Government was directed to take over the area and restore it to its
original condition and exemplary damages of Rs.10 lakhs were imposed.
More recently the Supreme Court invoked the ‘public trust doctrine’ evolving methods for
arriving at ‘Net Present Value’ to be paid by the State of the diversion of forest land to non-
forest use to be paid to Compensatory Afforestation Fund Management and Planning Agency
(CAMPA.)25
In the above decisions, as it can be seen, the Apex Court has gone beyond the statutory texts to
refer extensively to international conventions and obligations of India 26 and even to the historical
environmental values reflected in the edicts of Emperor Ashoka 27 and verses of Atharva Veda.28
The Supreme Court has, in clear terms, advised the State to shed its ‘extravagant unbridled
sovereign power’ and to pursue a policy to maintain ecological balance and hygienic
environment.29The activist attitude ranges across a gamut of environmental issues viz. banning
aquaculture industries in coastal areas to prevent drinking water from becoming saline, 30 issuing
directions for improving quality of air in the National Capital Territory of Delhi 31 and protecting
Taj Mahal,32 prohibiting cigarette smoking in public places,33 addressing issues of solid waste
management,34 proscribing construction activities in the vicinity of lakes 35 and directing the
lower courts to deal strictly with environmental offences. 36 In the Yamuna Case37 the court
threatened, admonished and attempted to shame enforcement agencies to come up with solutions
25
Karni Singh, Environment Justice: Experience Vs. Expectations,
http://www.legalserviceindia.com/articles/ev_ex.htm
26
K.M. Chinnappa & T.N. Godavarman Thirumulpad v Union of India, AIR 2003 SC 724.
27
State of Bihar v Murad Ali Khan, (1988) 4 SCC 655
28
Rural Litigation & Entitlement Kendra v State of UP, 1989 Supp (1) SCC 504
29
Virender Gaur & Ors. v State of Haryana & Ors., (1995) 2 SCC 577
30
S. Jagannath v Union of India, (1997) 2 SCC 87
31
M.C. Mehta v Union of India (1998) 8 SCC 648 [Introduction of lead free petrol] and M.C. Mehta v Union

of India, (1998) 8 SCC 206 [Phasing out commercial vehicles older than 15 years].
32
M.C. Mehta v Union of India, (1996) 8 SCC 462 [Taj Trapezium Case]
33
Murli S. Deora v Union of India, (2001) 8 SCC 765
34
Almitre H. Patel v Union of India, (1998) 2 SCC 416
35
M.C. Mehta v Union of India, (1997) 3 SCC 715 [matter relating to Badkal and Surajkund Lakes]

10
that would help attain statutory environmental standards. The thrust is to educate the public in
matters concerning environment.38
International Legal Regime Governing Hazardous Waste:
Prior to the early 1980s, international hazardous waste transfers from advanced industrial
countries to poorer developing countries did not attract much policy interest at the global level.39
The result was a global campaign to create an international regime capable of regulating the
trade in toxic waste, culminating in the creation of the Basel Convention in 1989. Five years
later a comprehensive ban on transfers of nearly all hazardous waste from OECD to non-OECD
countries was added as an amendment to the treaty. This changed with several highly publicised
incidents that occurred in the 1980s, including, inter alia, the voyage of the Khian Sea; the
storage of thousands of drums of toxic polychlorinated biphenyls (PCBs) by an Italian
businessman in the port of Koko, Nigeria, which caused workers handling the waste to be
hospitalised with severe injuries; and the 6,000-mile journey of the Mobro, a New York barge
carrying more than 3,000 tons of solid waste, as it unsuccessfully attempted tooffload its cargo in
various countries40.
Another trend occurring around the same time was the grassroots – and largely female – activism
within the United States that attempted to bring attention to the domestic dumping of toxic
wastes and its negative health effects.41 Cases in towns such as Love Canal, New York and
Woburn, Massachusetts42 highlighted the environmental and health impacts of hazardous waste
dumping.
Initially a NIMBY (Not In My Backyard) movement, American toxic waste activism helped lead
to the increasingly strict environmental restrictions on domestic waste dumping that contributed

36
U.P. Pollution Board v Mohan Meakins Ltd., (2000) 3 SCC 745
37
2001 (8) SCALE 323; 2002 (1) SCALE 421
38
Shyam Divan, A Mistake of Judgment, Down to Earth, 29 April 2002 ; Indian Environmental Portal,
http://www.indiaenvironmentportal.org.in/node/6461
39
K. Kummer, International Management of Hazardous Wastes: The Basel Convention And Related Legal Rule
s(Oxford: Clarendon Press, 1995), [ hereinafter Krummer] p. 7., C.F Jason Lloyd, Toxic Trade: International
Knowledge Networks & The Development Of The Basel Convention, International Public Policy Review, Vol. 3,
N0.2, 17 (2008)
40
Greenpeace, The Basel Ban – The Pride of the Basel Convention: An Update on Implementation and Amendment,,
http://archive.greenpeace.org/comms/97/toxic/bbp.html.
41
E. Beck, The Love Canal Tragedy, EPA Journal, US Environmental Protection Agency, available
online:http://www.epa.gov/history/topics/lovecanal/01.html
42
P. Brown and F. Ferguson, ‘Making a Big Stink’: Women’s Work, Women’s Relationships, and Toxic Waste
Activism, Gender and Society vol. 9, no. 2 (1995), pp. 156-159. C.F Jason Lloyd, Toxic Trade: International
Knowledge Networks & The Development Of The Basel Convention, International Public Policy Review, Vol. 3,
N0.2, 17 (2008)

11
to the international transfer of hazardous waste to poorer countries. 43 This national NIMBY
perspective shifted in the mid- to late-1980s to a global NIABY (Not in Anyone’s Backyard)
movement and illustrated “a concrete recognition that toxic waste should not be produced, or at
least that any production should be substantially reduced, dealt with at source and disposed of
properly,” 44 in addition to an identification of the spatial connection between local and global
policy concerns.
Factors in this normative shift in perception were primarily the international incidents mentioned
above, as well as the sheer increase in the amount of hazardous waste produced and consequent
concerns over its disposal;45prohibitions on hazardous waste importation imposed unilaterally by
many countries throughout the 1980s;46 and UNEP’s creation of ad hoc working groups –
themselves comprising epistemic networks, to create a framework for the development of
international environmental law.47 Greenpeace was aligned closely enough with communities of
waste experts, toxicologists and other environmental scientists to gain a reputation for
“unmatched expertise” in the international hazardous waste trade.48
The international consensus against dumping of hazardous waste is demonstrated by numerous
treaties and multitudes of domestic legislation. Most notably, the Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel
Convention), 49 a multilateral treaty administered by the United Nations Environment
Programme (UNEP), defines the norm against dumping by expressly prohibiting dumping
hazardous waste. The Basel Convention requires in Article 4(1) (c) that 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.” The Basel Convention further requires that parties
“[e]sure the availability of adequate disposal facilities, for the environmentally sound
43
L. Ford, Challenging Global Environmental Governance: Social Movement Agency and Global Civil Society,
Global Environmental Politics vol. 3, no. 2 (2003), , pp. 127-128 [ hereinafter ford] C.F Jason Lloyd, Toxic Trade:
International Knowledge Networks & The Development Of The Basel Convention, International Public Policy
Review, Vol. 3, N0.2, 17 (2008)
44
Ford, pp. 127-128
45
. Krueger, What’s to Become of Trade in Hazardous Wastes? The Basel Convention One Decade
Later,Environment vol. 41, no. 9 (1999), p. 12.
46
Greenpeace, The Basel Ban – The Pride of the Basel Convention: An Update on Implementation and Amendment,
available online: http://archive.greenpeace.org/comms/97/toxic/bbp.html
47
UNEP Governing Council Decision 9/19A, UNEP/GC.9/19A, 26 May 1981
48
J. Clapp, Toxic Exports: The Transfer of Hazardous Wastes from Rich to Poor Countries (London: Cornell
University Press, 2001). C.F Jason Lloyd, Toxic Trade: International Knowledge Networks & The Development Of
The Basel Convention, International Public Policy Review, Vol. 3, N0.2, 17 (2008)
49
Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, Mar.
22, 1989, 1673 U.N.T.S. 57 [hereinafter Basel Convention]; Daniel Jaffe, Note & Comment, The International
Effort To Control the Transboundary Movement of Hazardous Waste: The Basel and Bamako Conventions, 2 ILSA
J. Int'l & Comp. L. 123, 127 (1995) (The Basel Convention's goal was to establish a global framework for the
movement of hazardous waste. The Basel Convention does not call for a complete ban of hazardous waste
exportation, rather it attempts to regulate it. Adopted by over 100 countries.

12
management of hazardous wastes and other wastes, that shall be located, to the extent possible,
within it, whatever the place of their disposal . . . .” 50 The Basel Convention was ratified by
India in 1992. It is only an informed consent Convention. The real challenge lies with the
importing country which has to decide, in the interests of its own people, if it has the ability of
manage, process and recycle the waste without adding to its environmental damage.51
The Basel Convention and the Basel Convention Secretariat--particularly when viewed in
combination with the Bamako Convention,52 laws adopted by many countries to implement the
Basel Convention, and a range of international accords prohibiting dumping--demonstrate that
the dumping of hazardous wastes is a violation of established international law.53 Moreover,
dumping is a tort under U.S. law54.Therefore; aliens injured by dumping can seek relief under the
law of nations prong of the Alien Torts Claims Act (ATCA).55
Reports of the working group meetings show that during the two years of the Convention’s
development, “[e]xperts from ninety-six states participated in one or more of the sessions, and
representatives of over fifty international organisations and NGOs attended as observers.”56
International trade experts, for example, attempted to formulate restrictions on the waste trade
within the General Agreement on Tariffs and Trade (GATT) framework, while toxicologists
presented findings on human and animal hazardous waste exposure. This extensive participation

50
Basel Convention art. 4.1(c), supra note 39 , at 131.
51
Ashok K. Jain, Law and Environment, ( Ascent Publications, 3rd edn., Delhi, 2005) p. 268
52
Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and
Management of Hazardous Wastes Within Africa, Jan. 29, 1991, 2101 U.N.T.S. 177 [hereinafter Bamako
Convention]. The Bamako Convention was adopted by the Organization of African Unity (OAU) to place a total ban
on the exportation of waste into Africa.Article 4(3)(b) provides for unlimited liability, as well as joint and several
liability, to punish violators of the Bamako Convention. Joseph F. St. Cyr, The International Jurisprudence and
Politics of Hazardous Substances: Managing a Global Dilemma, 12 Buff. Envtl. L.J. 91, 110 (2004).
53
Shireen Irani Bacon, Note,. Up in Smoke: The Need for International Regulation of Hazardous Waste
Incineration, 29 Tex. Int'l L.J. 257, 259 (1994)
54
Rory A. Valas, Toxic Palsgraf: Proving Causation when the Link Between Conduct and Injury Appears Highly
Extraordinary, 18 B.C. Envtl. Aff. L. Rev. 773, 778-79 (1991) Causation is the element that creates the greatest
misunderstanding among those involved in toxic tort litigation.); Shelly Brinker, Opening the Door to the
Indeterminate Plaintiff: An Analysis of the Causation Barriers Facing Environmental Toxic Tort Plaintiffs, 46
UCLA L. Rev. 1289 (1999) (discussing hazardous waste dumping as a toxic tort); Clifford Fisher, The Role of
Causation in Science as Law and Proposed Changes in the Current Common Law Toxic Tort System, 9 Buff. Envtl
L.J. 35 (2001) (using hazardous waste dumping as an example of a toxic tort when discussing the difficulty of
proving causation in toxic tort litigation); cf. Mouton v. State, 525 So. 2d 1136, 1142 (La. Ct. App. 1988) (finding
that the tortious 'conduct' of 'generator' defendants was the deposit of... wastes on plaintiff's land). Mary Elliott
Rollé, Unraveling Accountability: Contesting Legal and Procedural Barriers in International Toxic Tort Cases, 15
Geo. Int'l Envtl. L. Rev. 135, 201 (2003) (arguing that the international community should work toward creating a
new, separate and distinct forum for litigating toxic torts).
55
Natalie L. Bridgeman, Human Rights Litigation Under the ATCA as a Proxy for Environmental Claims, 6 Yale
Hum. Rts. & Dev. L.J. 1, 2 (2003) ( Until environmental law is recognized as part of the 'law of nations,' as human
rights law is, there can be no actionable violations of environmental law under the ATCA.)
56
Kummer, p. 40.

13
continues to the present meetings of the Basel Convention’s governing body. At the Conference
of the Parties (COP) to the Basel Convention in 2006, the participants and observers from
specialised UN bodies and agencies, international organisations, governmental and non-
governmental organisations, and the private sector and business groups far outnumbered the state
representatives.57
Recent cases in India:
In Research Foundation For Science Technology National Resources Policy v Union of India58,
interpreting the Hazardous Wastes Rules 1989 and also the Amended Rules of
2003Industrialization has had the effect of generation of huge quantities of hazardous wastes
which are highly toxic in nature. These and other side- effects of development give birth to the
principles of sustainable development so as to sustain industrial growth. The hazardous waste
requires adequate and proper control and handling. Efforts are required to be made to minimize it
based on Basel Convention.
In the landmark case of T.N. Godaverman Vs Union of India59, which deals with environment
protection in India, Stockholm declaration in 1972, has been particularly referred to .A reference
was also made to the Convention on Biological Diversity Act of 1992.

Economic Development/Globalization and Stance of the Supreme Court:

However, a gamut of recent cases seemingly projects an impression of Court’s growing pro-
industry tilt while dealing with intricate issues of sustainable development. In Deepak Nitrite
Ltd. v State of Gujarat & Ors.,60 a case dealing with determination of standard of compensation
in respect of industries which had flouted the norms laid down by the State Pollution Control
Board, the Court held that mere non-compliance with these norms does not imply that
environmental damage would result thereby; a strange and inexplicable conclusion indeed.61
Confronted with the issue of oil pipeline construction through Jamnagar Marine National Park
and Sanctuary, the Apex Court in Essay Oil Ltd. v Halar Utkarsh Samiti & Ors62 permitted such
laying of pipelines on the ground that it cannot invariably lead to the destruction or removal of
the wild life in these ecologically sensitive areas. The Court, instead of taking independent expert
evidence on the issue like it has done in all other cases, deferred to the State’s judgment of

57
Section IV(A) of the Report of the Conference of the Parties to the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal on its eighth meeting, UNEP/CHW.8/16, 5
January 2007.
58
(2005) 10 SCC 510
59
(2002) 10 SCC 606
60
(2004) 6 SCC 402, 407.
61
Fortunately in Research Foundation for Science Technology and Natural Resources Policy v Union of India &
Anr, (2005) 13 SCC 186, the Court has held Deepak Nitrite’s case to be confined to its own facts.
62
(2004) 2 SCC 392, 408.

14
possible damage and the failure of respondent to place any contrary reports before it. 63
Furthermore, given a choice between environment and development, in Research Foundation for
Science Technology and Natural Resource Policy v Union of India & Ors.,64 the Court seemed
unequivocal of its choice to err on side of development. It clearly displayed that it was in favour
of continuance of hazardous industry subject to safeguards being followed and seemingly took
India’s economic growth rate of 9 per cent and economic interests in ship wrecking industry as
overriding considerations. Furthermore, recently in Karnataka Industrial Areas Development
Board v Sri C. Kenchappa & Ors.,65 the Court overturned a direction by the Karnataka High
Court to the appellant to leave a land of one kilometer as a buffer zone to maintain a ‘green area’
around the periphery of a village.66 In the absence of any evidence, it adjudged that these
directions would have hindered land acquisition for industrial development.
These new cases have been set against the backdrop of a radically different socio-economic
background of national life. The annual GDP growth rate of the Indian economy has catapulted
to the levels of 8 to 9 per cent against a meager 5 to 6 per cent in the previous two decade 67 and
the annual growth rate of the industrial sector has skyrocketed from the range of 5 to 7 per cent
to 11.6 per cent during the period of 2002 to 2007.68
Thus, industrial development has become a pressing need in the current phase of economic
transformation. In such a scenario, it is impossible for the higher judiciary to remain oblivious of
this critical facet of national life69 and therefore, there is an increased probability of a pro-
development bias creeping into the judgments where courts are required to review choices made
between environment and development.
But this is not a general direction. But there is a dichotomy which the Court has to realize sooner
than later that the sustainability can not be overlooked. As the Supreme Court itself recognized in
Vellore Citizens’ Welfare Forum70 that though the leather industry is of vital importance to the
country as it generates foreign exchange and provides employment avenues, it has no right to
destroy the ecology, degrade the environment and pose as a health-hazard. The traditional

63
ibid
64
(2005) 13 SCC 186
65
(2006) 6 SCC 371.
66
Following the precautionary principle, on lines of M.C. Mehta v Union of India, (1997) 3 SCC 715
67
Economic Survey 2007-2008, State of Economy, Chapter 1, p.1
68
ibid, Industry, Chapter 8, p.182
69
State of Punjab & Anr. v Devans Modern Breweries Ltd. & Anr., 2003 (10) SCALE 202, 289-294, Research
Foundation for Science Technology and Natural Resource Policy v Union of India & Ors., 2007 (11) SCALE 75,
80,

2007 (13) SCALE 204, 290 and Maharashtra Agro Industries Development Corporation Ltd. & Ors. v State of
Maharashtra & Anr., (2006) 3 LLJ 102, 121.
70
(1996) 5 SCC 647

15
concept that development and ecology are opposed to each other is no longer acceptable.
Sustainable Development has come to be viewed as the only solution.

Shortcomings and Weaknesses in Policy Implementation:

The Supreme Court set up the High Powered Committee on Management of Hazardous
Wastes (HPC) which submitted its final report in 2001. The committee’s findings were grim.
“Most industries used the opportunity presented by the delay in constructing disposal sites] to
discharge their hazardous waste in illegal dump sites outside industrial estates, along roadsides,
in low-lying areas, along with municipal wastes, or even in river and canal pits,” observed the
2001 HPC report. The report further noted that “the authorities appeared to have ignored several
warnings, reports, investigations, and studies that highlighted zones of ecological degradation
due to indiscriminate dumping and disposal of hazardous waste.”71

The hazardous waste inventories made by most of the states are based on Rules of 1989. Very
few states have been able to revise their inventories based on amended HWM Rules of 2003. The
state pollution control boards also lack the basic infrastructure and trained manpower to carry out
waste characterization and inventory based on requirements of the amended Rules. The Rules do
not specify standards for the cleaning up of contaminated sites and limits for disposal of waste on
land. Due to this, the industries which are causing contamination of land and water bodies
through inappropriate waste disposal are not legally bound to clean the site unless ordered by
judicial intervention to do so.72

Weaknesses in policy implementation: One of the most obvious signs of inadequate

enforcement of legislation is the lack of reliable inventory of hazardous waste in the country.
This is evident from the fact that the estimate for hazardous waste generation as provided to the
High Powered Committee (HPC) by the MoEF was revised downwards several times from 9
million tonnes to 8 million and finally to 4.4 million tonnes per annum. Information on
hazardous waste generated by industrial units required to be maintained under the HWM Rules
1989 is not maintained by the SPCBs on a regular basis.73

Suggestions and Conclusion:

From the number of cases and instances of the exploitation of the natural environment and the
abuse of nature to the extreme use toxic material and hazardous materials , a great deal of
damage has been done to our eco-systems and habitats which in a number of cases is irreversible.
The hazardous waste and toxic material by their very nature are antithetic to the ‘live and let
live’ policy inherent in the nature that the environment that tends to maintain to achieve a
delicate balance between its different components so as to benefit all and harm none.

71
D C Sharma, By Order of the Court: Environment clean up in India, Environmental Health Perspectives ,
Volume 113, Number 6, June 2005
72
Suneel Pandey, Shaleen Singhal, Pragya Jaswal, and Manraj Guliani, Urban Environment
73
Supra note 74

16
The legal regime on the production, storage and disposal of toxic waste and hazardous materials
has developed a great deal in the recent years largely because of the increased visible impact of
these activities and their harmful consequences in recent years. This can be explained on the
basis of spiral increase in the industrial activities from the twentieth century afterwards to meet
the pressures exerted by the demand factors of burgeoning population and the sophistication
acquired during the period. It can also be attributed to the profit maximization motive with a very
callous approach to the needs of the environment.
But, the attitude has undergone a sea change as serious adverse impacts have been clearly
noticed especially with the international focus on climatic change gaining momentum. The
International Conventions, Declarations and treaties are a testimony to this fact and the Basel
Convention of the Transboundary movement of Hazardous waste is an excellent example of how
the international forces seek to address this concern by putting a legal framework in the place.
The judicial activism which is a logical corollary of the increasing consciousness in the academic
circles and social arena both internationally and nationally as highlighted in the paper has played
a very significant role in developing the entire environmental jurisprudence on the subject. The
judiciary in cases like Vellore, Bicchri Village etc have acquired the activist approach and
underlined the sensitivity of issues that they grappled in these cases. Various principles
enunciated like the polluter pays principle and the precautionary approach has been incorporated
in the Indian environmental law through these landmark case laws. The orders and directions
passed in a number of these cases have forced the government to take notice of the fact and come
up with a stringent system of compliance measures in terms of permits, consents, approvals etc.
by the statutory bodies like Pollution Control Boards etc before licenses are given for an
industry/factory which may have a potential negative impact on the environment. An
Environment impact Assessment (EIA) has also been made mandatory. The different Acts have
been amended to make the directors personally liable to help overcome the diffusion of
responsibility which comes in these case in the case a company is found flouting the safeguards.
The judicial intervention has also given relief by relying on the international obligations; India
chose to enter when they signed the various conventions and protocols. So, despite an absence of
provision in the municipal law, global principles have been invoked to bring the guilty to the
book and hence compensating for the laxity shown by the Legislature in delaying to failing to
enact an enabling act to give effect to the international commitments of the country to not allow
certain hazardous activities on its soil.
Despite, the activist approach adopted by the judiciary and a general betterment of the prevailing
conditions in the country, there is a general lack of awareness about the importance of
environment and the extent of the damage that is caused to it because of the toxic materials and
hazardous substances especially in the absence of treatment plant. This general awareness leads
to exploitation of the environment by the industrialists for their private ends which ultimately
have devastating effects on human beings themselves as they are situated at the top of the food
chain.
The enforcement and compliance measures also leave a lot to be desired as they are not followed
in their true sense. This presents another challenge to the environmentalists and right minded
citizens to see that this does not happen. The fact that most of the environmental cases which
have ultimately led many High Courts to set up “Green Bench” especially for only

17
environmental violation matters shows that their efforts do count. The ushering of the Right to
Information regime may also be of great help for the whistle blowers who can have access to all
the information in the public domain from the concerned Public Information Officer.
But, all said and done, the toxic materials and hazardous waste pose a great challenge to the
vision of ‘sustainable development’ and ‘Green Earth’ which has come to mark the motto of the
development model the world seeks to follow. The measures taken and the legal development are
on the right track but by no means sufficient or a reason to rejoice or feel complacent as a lot
needs to be done and the journey has just begun. A more holistic and inclusive dedicated sector
wise approach is required to tackle problem .All three organs of the government with the general
support of the public through its civil society organizations should join hands to expedite the
process. The judiciary, by and large, with notable exception seems to have taken the lead and it
is important that the Legislature and the executive do not lag behind in performing their duties in
accordance according to the Constitution and keep pace with the developments that come up so
as not to lead a vacuum in law to be exploited.

BIBILOGRAPHY
Principles of international law by Philippe Sands , Jacqueline Peel
Handbook of Environmental Law P.B Sahasranaman
Environmental law in india LexisNexis Butterworthswadhwa Nagpur, 2008
Environmental law in developing Countries: Selected Issues, Volume 1 By Nazil Islam

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