CONTENTS

CHAPTER PAGE
TITLE
No. No.

CERTIFICATE

DECLARATION

ACKNOWLEDGEMENT

ABBREVIATIONS

I INTRODUCTION 1

THE INDIAN CONSTITUTION AND ENVIRONMENTAL

II 24
PROTECTION

Duties of the Citizen towards Environmental Protection 30

Duties of the State towards Environmental Protection 34

Environmental Protection and Right to Life 37

III COMMON LAW AND OTHER LEGISLATIVE MEASURES 59

Common Law for Environmental Protection 59

Legislative Measures for Environmental Protection 74

IV MUNICIPAL SOLID WASTES MANAGEMENT 107

Impact of Improper Management of Municipal Solid Wastes 116

Management of Municipal Solid Wastes 121

Judicial Activism on Municipal Solid Wastes Management 142

V HAZARDOUS WASTES MANAGEMENT 166

Effects of Hazardous Wastes on Health and Environment 177

Transboundary Movement of Hazardous Wastes 178

Handling of Hazardous Wastes 187

v
CHAPTER PAGE
TITLE
No. No.

Bio-Medical Waste: Health and Environmental Hazards 213

Operational Aspect of Bio-Medical Waste 219
Specific Judicial Response 223
ELECTRICAL AND ELECTRONIC WASTE
VI 229
MANAGEMENT
Environment Concerns and Health hazards 233
Electrical and Electronic Waste Treatment and Disposal
237
Methods
Import of Hazardous Electrical and Electronic Waste in India 248
Regulatory Regime for Management of Electrical and Electronic
251
Waste

HAZARDOUS AND SOLID WASTES MANAGEMENT IN

VII DEVELOPED AND DEVELOPING COUNTRIES – 260
A COMPARATIVE ANALYSIS
Environmental Protection in Developed Countries 260
Municipal Solid Wastes Management in Asian Countries 278
Electrical and Electronic Waste Management in India and
284
Switzerland
Bio-Medical Waste Management in Asian and African Countries 287
Hazardous Wastes Management in Developed and Developing
289
Countries

VIII CONCLUSION AND SUGGESTIONS 294

Conclusion 294
Suggestions and Recommendations 310

LIST OF CASES
BIBILIOGRAPHY

vi
 ABBREVIATIONS

AC Appeal Cases

AIR All India Reporter

ALD Andhra Legal Decisions

ALJ Allahabad Law Journal

All.ER All England Law Reports

ALT Andhra Law Times

ARF Advance Recycling Fee

AWC Allahabad Weekly Cases

BAN Basal Action Network

BLJR Bihar Law Journal Reports

Bom.CR Bombay Cases Reporters

CAA Clean Air Act

CBO Community Based Organization

CCU Coronary Care Unit

CDJ Complete Digital Judgments

CERCLA Comprehensive Environmental Response, Compensation and

Liability Act (USA)

Ch / Ch D Chancery Division (UK)

CLT Calcutta Law Times

CPCD Central Pollution Control Board

CPU Central Processing Unit

Cr.LJ Criminal Law Journal

CRT Cathode Ray Tube

vii
CTV Colour Television

CV Colorific Value

CWA Clean Water Act

DEFRA Department of Environment Food and Rural Affairs

DGFT Directorate General of Foreign Trade

DHC Delhi High Court

DPCC Delhi Pollution Control Committee

EC European Community

ECHR European Convention on Human Rights

EEA European Environment Agency

EHTP Electronics Hardware Technology Parks

EIA Environment Impact Assessment

EOLSS Encyclopedia Of Life Support Systems

EOU Export Oriented Units

EPA Environment Protection Act

EPA Environment Protection Agency

EPCRA Emergency Planning and Community Right-to-know

Act (USA)

EPR Extended Producer Responsibility

EPTRI Environment Protection Training and Research Institute

EPZ Export Processing Zones

EU European Union

EXIM Export and Import

FICCI Federation of Indian Chamber of Commerce and Industry

viii
FIFRA Federal Insecticide, Fungicide and Rodenticide Act (USA)

GLR Gujarat Law Reporter

GPCB Gujarat Pollution Control Board

HC High Court

HCW Health Care Waste

HEC Heavy Engineering Corporation

HMIP Her Majesty’s Inspectorate of Pollution

IAER International Association of Electronics Recyclers

IBM International Business Machines

IC Integrated Circuits

ICU Intensive Care Units

ILR Indian Law Reports

IMRB Indian Market Research Bureau

ISWA International Solid Waste Association

IT Information Technology

ITA Information Technology Agreement

JT Judgment Today

KB King’s Bench

KLT Kerala Law Times

LCD Liquid Crystal Display

LED Light Emitting Diode

LEPC Local Emergency Planning Committee

LRHL Law Reports English & Irish Appeals (UK)

MAIT Manufacturer’s Association of Information Technology

ix
MCD Municipal Corporation Delhi

MHC Madras High Court Reports

MIC Methyl Iso Cynate

MLJ Madras Law Journal

MLT Madras Law Times

MoEF Ministry of Environment and Forest

MoUD Ministry of Urban Development

NCR National Capital Region

NCT National Capital Territory

NDMC New Delhi Municipal Council

NEERI National Environmental Engineering Research Institute

NGT National Green Tribunal

NRA National Rivers Authority

NRI National Research Institute

NTPC National Thermal Power Corporation

OECD Organization for Economic Co-operation and Development

OPD Out Patient Department

OT Operation Theatre

PBB Poly Brominated Biphenyls

PBDE Poly Brominated Diphenyl Ethers

PC Privy Council

PCB Printed Circuit Board

PCD Poly Chlorinated Biphenyls

POP Persistent Organic Pollutants

x
PPA Pollution Prevention Act

PVC Poly Vinyl Chloride

QB Queen’s Bench

RCEP Royal Commission on Environment Pollution

RCRA Resource Conservation and Recovery Act

RDF Refuse Derived Fuel

RoHS Reduction in the use of Hazardous Substances

RRT Refuse Removal Trucks

RWA Resident welfare Association

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

SDWA Safe Drinking Water Act

SEA Single European Act

SERC State Emergency Response Commission

SIPCOT State Industries Promotion Corporation Of Tamil Nadu.

SLF Secured Land Filling

STP Software Technology Parks

SVTC Silicon Valley Toxics Coalition

SWICO Swiss Economic Association for the Suppliers of Information

Communication and Organizational Technology

TCLP Toxicity Characteristic Leachate Procedure

TERI The Energy and Research Institute

TSCA Toxic Substances Control Act

xi
TSDF Treatment Storage and Disposal Facilities

TTZ Taj Trapezium Zone

UK United Kingdom

UNEP United Nation Environment Programme

UNSD United Nations Statistics Division

USA United States of America

US-EPA United States Environmental Protection Agency

USGS United States Geological Survey

WEEE Waste Electrical and Electronic Equipments

WHO World Health Organization

WLR Weekly Law Reports (UK)

WRA Waste Regulation Authority

WRA Water Resources Act (UK)

WTO World Trade Organization

xii
 LIST OF CASES
1. A.P. Pollution Control Board (II) v. Prof. M.V. Nayadu, (2001) 2 SCC 62.

2. A.P.Gunnies Merchants Association, Hyderabad v. Government of A.P., AIR 2001

AP 453.

3. Abhilash Textiles v. Rajkot Municipal Corporation, AIR 1988 Guj. 57.

4. Ahamadabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11

SCC 121.

5. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.

6. All India Plastic Industries Association v. Government of NCT of Delhi Department

of Forests and Wildlife, Reported as MANU/DE/0954/2009.

7. Almitra H. Patel v. Union of India, (1998) 2 SCC 416.

8. Almitra H. Patel v. Union of India, (2000) 2 SCC 679.

9. Andhra Pradesh Pollution Control Board v. M. V. Nayudu, AIR 1999 SC 812, at 820.

10. Animal and Environment Legal Defence Fund v. Union of India, (1997) 3 SCC 549

11. Ashwin Jajal v. Municipal Corporation of Greater Mumbai, AIR 1999 Bom. 35.

12. B.L. Wadhera v. Union of India, AIR 1996 SC 2969.

13. Baleshwar Singh v. State of U.P, AIR 1999 All. 84.

14. Bangalore Medical Trust v. B.S Muddappa, (1991) 4 SCC 54.

15. Banwasi Seva Ashram v. State of U.P., AIR 1987 SC 374.

16. Bar Council of Delhi v. Bar Council of India, AIR 1975 Delhi 202.

17. Bhanwarlal v. Dhanraj, AIR 1973, Raj. 213.

18. Bharat Zink (P) Ltd. v. Union of India, CDJ 1997 Del HC 725.

19. Bijayananada patra v. District Magistrate, Cuttack., AIR 2000, Ori. 70 at 76.

20. Bombay Environment Action Group and Sameer Mehta v. State of Maharashtra
and Ors., 2007(1) Bom CR 721.

xiii
21. Brook v. Bool, (1928) 2 KB 578.

22. Buffalo Trader’s Welfare Association v. Maneka Gandhi, (1996) 11 SCC 35.

23. Burrabazar Fire Works Dealers’ Association v. Commissioner of Police,

Calcutta, AIR 1998 Cal 121.

24. C.Galstaim v. Dunia Lal, (1905) 9 CWN 617.

25. Chameli Singh v. State of U.P., AIR 1996 SC 1051.

26. Charanlal Sahu v. Union of India, (1990) 1 SCC 613.

27. Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare
Association, (2000) 7 SCC 282;

28. D. Saravanan v. The Union of India (UOI), Reported as MANU/TN/1105/2009

on www.manuptra.com (visited on 20.5.2009).

29. D. D. Vyas v. Ghaziabad Development Authority, AIR 1993 All 57.

30. Deepak Nitrite Ltd v. State of Gujarat, AIR 2004 SC 3407.

31. Delhi Medical Association and Ors. v. Union of India (UOI) and Ors., AIR 2009
Delhi 163.

32. Dr.Ashok v. Union of India, (1997) 5 SCC 10.

33. Durga Prashad v. State, AIR 1962 Raj. 92.

34. Dyeing, Bleaching and Finishing Workers Union v. State, CDJ 1999 GHC 226.

35. Eastern and South African Telegraph Co., Ltd., v. Cape Town Tramways
Companies Ltd., 1902 AC 381.

36. F.B. Taraporawala v. Bayer India Ltd., (1996) 6 SCC 58

37. F.K. Hussain v. Union of India, AIR 1990 Ker 321.

38. Francis Carolie Mulhin v. Administrator Union Territory of Delhi, AIR1981 SC 746.

39. Free Legal Aid Cell v. Government of NCT of Delhi, AIR 2001 Del 455.

40. Goa Foundation v. State of Goa, AIR 2001 Bom 318 at 319.

xiv
41. Gopal v. State of MP, (1986) CrLJ 396.

42. Gopalan Krishna Y. Varu v. Secretary of State, (1914) 16 MLT 597.

43. Gram Panchayat Totu (Majthai) & ors v. State of Himachal Pradesh & ors,
National Green Tribunal, Principal Bench, New Delhi, dated 11.10.2011 (visited
on 06.04.2014), available at: http://www.greentribunal.gov.in/ judgment/2-
2011(RA)_11Oct_final_order.pdf.

44. Hamid Khan v. State of Madhyapradesh, AIR 1997 MP 191.

45. Hoare & Co., v. McAlpine, 1923, 1 Ch.167.

46. Honey Will and Stein Ltd., v. Lakin Bros., Ltd., (1934) 1 KB 191.

47. Indian Council for Enviro Legal Action and Ors v. Union of India and others, JT
1995 (9) SC 427.

48. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.

49. Indian Express Newspapers (Bombay) Pvt Ltd. v. Union of India, AIR 1986 SC 515.

50. Indira Gandhi v. Raj Narain, AIR1973 SC 2299.

51. Invertis University & ors. v. Union of India & ors., National Green Tribunal, Principal
Bench, New Delhi, dated 18th July (2013). (visited on 6.04.2014) available at:
http://www.greentribunal.gov.in/judgment /992013(App)_18July2013_final_order.pdf.

52. Ismail sahib v. Venkata Narasimhulu, 1937, ILR Mad 51.

53. Ivory Traders and Manufacturers Association v. Union of India, AIR 1997, Del 267.

54. Jankhi Prasad v. Karamat Kussain, 1931 ILR, All 36.

55. Jay Laxmi Salt Works (p) ltd., v. State of Gujarat, 1994 (4) SCC 1.

56. K. Purushotham Reddy v. Union of India, 2002 ALD Supp 2, 668 and CDJ 2001
APHC 1109.

57. K.C. Malhotra v. State, AIR 1994 MP 48.

58. K.Chandru v. State of T.N, AIR 1986 SC 204.

59. Karjan Jalasay Y.A.S.A.S. Samiti v. State of Gujarat, AIR 1987 SC 532.

xv
60. Kesavananda Bharati v. State of Kerala, AIR1973 S.C 1461,

61. Kholamuhana Primary Fisherman Cooperative Society v. State, AIR 1994 Ori 191.

62. Kinkari Devi v. State, AIR 1988 H.P. 4.

63. Krishnan Gopal v. State of MP, (1984) CrLJ 396.

64. L. K. Koolwal v. State of Rajasthan and Ors AIR 1988 Raj. 2.

65. Law Society of India v. Fertilizers and Chemicals Travancore Ltd., AIR 1994 Ker. 308.

66. M. Madappa v. K.Kariapa, AIR 1964 Mys. 80.

67. M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co., Ltd.,
Hyderabad and others, AIR 2001 AP 502.

68. M.C. Mehta v. Kamalnath, (1997) 1 SCC 388.

69. M.C. Mehta v. Kamalnath, 2000 (6) SCC 213.

70. M.C. Mehta v. State of Orissa, AIR 1992 Ori. 225.

71. M.C. Mehta v. Union of India, (1992) 3 SCC 256.

72. M.C. Mehta v. Union of India, (1994) Supp (3) SCC 717.

73. M.C. Mehta v. Union of India, (1996) 4 SCC 750.

74. M.C. Mehta v. Union of India, (1997) 2 SCC 353 (Taj Mahal Case)

75. M.C. Mehta v. Union of India, AIR 1987 SC 1086 (Oleum Gas Leakage Case)

76. M.C. Mehta v. Union of India, AIR 1988 SC 1037.

77. M.C. Mehta v. Union of India, (1986) 2 SCC 176.

78. M.C. Mehta v. Union of India, (1997) 11 SCC 327

79. M/S. Anand Impex v. The Commissioner of Customs, CDJ 2012 MHC 893.

80. Maitree Sansad v. State of Orissa and Ors., 103 (2007) CLT 191.

81. Mandu Distilleries Pvt. Ltd., v. M.P. Pradushan Niwaran Mandal, AIR 1995 MP 57.

82. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

xvi
83. Manohar lal Chopra v. Raj Baja Seth Hiralal, AIR 1926, 527 at p-532.

84. Martin v. Reynolds Metal Co., (1959) 221 Ore 86.

85. McDonald v. Associate Fuels, 1954, 3 DLR 775.

86. Minerva Mills Ltd., v. Union of India, AIR1980 S.C 1789,

87. Moulana Syed Md. Noorur Rehman Barkati v. State of West Bengal, AIR 1999
Cal 15 at 25-26

88. Mukhesh Textiles Mills Pvt. Ltd., v. H.R.Subramaniya Sastry, AIR 1987 Kart. 87.

89. Naresh Dutt Tyagi v. State of U.P., SCC Supp. (3) 1995 p-144.

90. Nicoment Industries Ltd v. Goa State Pollution Control Board, CDJ 2008 SC 872.

91. North Western Utilities Ltd., v. London Guarantee & Accident Co., 1936 AC 106.

92. NZ Maori Council v. AG of New Zealand, (PC) [1995] 1 WLR 1176.

93. Obayya Pujari v. Member Secretary, KSPCB, Bangalore, AIR 1999 Kant 157.

94. Oil Country Tubular Ltd. v. A.P. Pollution Control Board and Another, 2005(3)
ALT 175.

95. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

96. P.A. Jacob v. Superintendent of Police, Kottayam, AIR 1993 Ker 1.

97. People’s Union for Civil Liberties v. Union of India, (1997) 3 SCC 433 at 422.

98. Perry v. Kendricks Transport Ltd., (1956) 1 WLR 85.

99. Pradeep Krishen v. Union of India, (1996) 8 SCC 599.

100. Praveen Mittal v. Department of Environment, Govt. of NCT of Delhi, 162 (2009)
DLT 365.

101. R v. Secretary of State for Environment, ex parte Greenpeace Ltd., [1994] Env LR 401.

102. R.P. Ltd., v. Proprietors, Indian Express Newspapers, Bombay Pvt. Ltd., AIR
1989 SC 190.

103. Radhey Shiam v. Gurprashad, AIR, 1978 All 86.

xvii
104. Rainhan Chemical Works Ltd., v. Belvedere Fish Guano Co., 1921, 2 AC 465.

105. Rajesh Kumar Srivastava v. A.P. Verma and Ors., 2004(2) AWC 967.

106. Rajiv Ranjan Singh v. State of Bihar, AIR 1992 Pat 86.

107. Ram Baj Singh v. Babulal, AIR 1982, All. 285.

108. Ram Rattan v. Munna Lal, AIR 1959 Punj. 217

109. Ramaniya Chariar v. Krishnaswami Muddi, 1907, ILR 31, Mad. 169.

110. Ramesh Chander v. Imtiaz Khan, (1998) 4 SCC 760.

111. Rampal and Ors. v. State of Rajasthan, AIR 1981 Raj 121.

112. Ramsewak v. Ramgir, 1953, ILR, 32, Pat., 937.

113. Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622.

114. Read v. Lyons & Co.Ltd., 1964, II, All ER 471.

115. Research Foundation for Science Technology and Natural Resource Policy v.
Union of India, (2005) 10 SCC 510.

116. Research Foundation for Science Technology National Resource policy v. Union
of India and another, AIR 2007 SC 3118.

117. Research Foundation for Science Technology National Resource policy v. Union
of India and another, 2012 (7) SCC 769.

118. Research Foundation for Science v. Union of India, (2005) 13 SCC 186

119. Rikards v. Lothian, 1913, AC 263.

120. Rooks v. Banard, 1964 AC 1129 (HL).

121. Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1987 SC 359.

122. Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., AIR 1985 SC
652 (Doon Valley Case).

123. Rylands v. Fletcher, (1868) LR 3 HL 330.

124. S. Jaganath v. Union of India, (1997) 2 SCC 87.

xviii
125. S. Nandakumar v. The Secretary to Government, http://indiankanoon.org/doc
/788976/,(last visited on 5.04.2014)

126. S. P. Gupta v. Union of India, AIR 1982 SC 149 at 234.

127. Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.

128. Sambamurthy v. State of AP, AIR1987 S.C 663.

129. Sat Priya Mehamia Memorial Education Trust (Regd.) v. State of Haryana and
others, available at: http://indiankanoon.org/doc/838088/, (visited on 5.04. 2014)

130. Satish Chaturvedi S/o S. Chaturvedi v. State of U.P. Not reported but available
as MANU/UP/1662/2004 on www.manupatra.com (visited on 3.2.2006)

131. Satish Chaturvedi v. State of U.P. through the Chief Secretary and Ors. Not
reported but available as MANU/UP/1662/2004 on www.manupatra.com (visited
on 3.2.2006)

132. Satpal Singh & Others. v. Municipal Council Gardhiwala & Ors National Green
Tribunal, Principal Bench, New Delhi, dated 25th April (2013). (visited on
6.04.2014) available at: http://www.greentribunal.gov.in/ judgment/15-2013(THC)
(App)_25April2013_final_order.pdf.

133. Sayeed Maqsood Ali v. State of M.P., AIR 2001 M.P. 220;

134. Shelter Trust v. Union of India, Judgment delivered by Madras High Court on
04.02.2008, http://indiankanoon.org/doc/165032/, (visited on 05.04.2014).

135. Sheo Kumar Agarwal Sunil Kumar Agarwal ... v. Shagun Udyog, Pvt. Ltd., Heavy
Engineering Corporation, 2007 (2) BLJR 1134.

136. Shott Iron Co. v. Inglish (1882), 7 Appeal case 518.

137. Shri. Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.

138. Sitaram Chhaparia v. State of Bihar, AIR 2002 Pat. 134.

139. Smeaton v. Ilford Corp. 1954, I, All ER 923.

140. Sodan Singh v. N.D.M.C., (1989) 4 SCC 155.

141. Solanki Jaswantsinh Kalusinh v. District Collector, CDJ 2009 GHC 289.
xix
142. South Part Corporation v. Esso Petroleum, 1954, 2 QB 182 at 240.

143. State of Bombay v. Narasu Aba Mali, AIR 1952, Bom. 82.

144. State of H.P. v. Umed Ram, AIR 1986 SC 847.

145. State of Himachal Pradesh v. Ganseh Wood Products, AIR 1996 SC 149.

146. State of Karnataka and Others v. B. Krishna Bhat and Ors., 2001(2) Kar. LJ 1.

147. State of Tamilnadu v. Hind Stone, AIR 1981 SC 711.

148. Subash Kumar v. State of Bihar, (1991) 1 SCC 598.

149. Suo Motu v. Ahmedabad Muncipal Corpn. and Ors., (2006)2 GLR 1129.

150. Suo Motu v. State of Rajasthan and Ors., AIR 2005 Raj 82.

151. Suo Motu v. Vatva Industries Association, AIR 2000 Gujarat 33 and (1999) 3
GLR 2758.

152. Superintendent and Remembrances of Legal Affairs v. Corporation of Calcutta,

AIR 1967 SC 997.

153. Susai v. Director of Fisheries, 1965 MLJ 35.

154. T N Godavarman Thirumulkpad v. Union of India, (1997) 2 SCC 267 and (1997)
3 SCC 312.

155. T. Damodhar Rao. v. S. O Municipal Corporation, Hyderabad, AIR 1987 AP 171.

156. T.C Balakrishnan v. T.R.Subramanian, AIR 1968, Ker 151.

157. T.Damodhar Rao v. S.O. Municipal Corporation, Hyderabad, AIR 1987 AP 171.

158. Talcher Swasthya Surakshya Parishad v. Chairman-Cum-MD Mohanadi Coal

Fields Ltd., and Others, AIR 1996 Orissa 195.

159. Tarun Bharat Sangh Alwar v. Union of India, 1992 AIR (SC).

160. Tehri Virodhi Sangarsh Samiti v. State of Uttar Pradesh, 1990 SCR, Supl. (2) 606.

161. The Commissioner of Customs, Custom House v. M/s. Mass Trading Company &
another, CDJ 2013 MHC 2705.

xx
162. The Delhi High Court in Courts on Its Own Motion v. In The Matter of Statement
made by Shri Raman Duggal, Adv 2001 CrLJ 1064.

163. Union Carbide Corporation v. Union of India, (1991) 4 SCC 584.

164. Union of India v. Shivam International, 2011 (2) KLT 407.

165. V.Suresh and Another v. Union of India and Others, CDJ 2006 MHC 2864.

166. Vellore Citizens welfare Forum v. Union of India, AIR 1996 SC 2715.

167. Virender Gaur v. State of Haryana, (1995) 2 SCC 577.

168. Waman Rao v. Union of India, AIR 1981 S.C 271.

169. West v. Bristol Tramways Co., 1908, 2K.B.14.

xxi
 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 imbalance 3.

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).

1
 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.

2
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 diseases 9. 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 problems 10.

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).

3
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 All
Chapter.aspx (visited on 24.01.2014).
12
J. Joseph and A. Krishnan, (2004), “Hospital waste management in the union territory of Pondicherry — An
exploration”, 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 Journal
of 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”, National
Journal of Medical Research, Vol. 2 Issue 1, (Jan – March 2012), p.107.

4
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 at
http://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).

5
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 resources 19. 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 the
Law 10 (Oxford University Press: Delhi, 1986).

6
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 Himalaya
87 (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 so
distributed 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 its
people and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health”.
Article 48 “The State shall endeavour to organise agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving the breeds and
prohibiting 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 of
artistic 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 of
Environmental Law.

7
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 pollution 24.
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 on
environmental protection, though in most cases, environmental concern is merely incidental to the laws
principle object.

8
 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 15 28.

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, lack
of full scientific certainty shall not be used as a reason for postponing cost-effective measures to
prevent 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.

9
 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).

10
 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 cities
having population over one lakh. It was constituted by the Supreme Court in Almitra H. Patel v. Union
of 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).

11
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 Jaswal 39covers 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.

12
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).

13
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. Syed 51 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 Books
India: 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.

14
 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”, Waste
Management, 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 on
10.02.2014).
54
R.M. Venkatesh and J. L. Thakker, “Industrial Hazardous Waste Management Strategies – Case
Studies” (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).

15
 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”, Eleventh
International 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.

16
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.

17
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?

18
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

19
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.

20
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

21
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

22
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.

23
 CHAPTER-II

THE INDIAN CONSTITUTION AND

ENVIRONMENTAL PROTECTION

2.1. Introduction

In India, the concern for environmental protection has not only been raised to the
status of fundamental law of the land, but it is also wedded with human rights approach
and it is now well established that, it is the basic human right of every individual to live
in pollution free environment with full human dignity. In view of the various
constitutional provisions and other statutory provisions contained in various laws relating
to environment protection, the Supreme Court has held that the essential feature of
“sustainable development” such as the “precautionary principle” and the “polluter pays
principle” are part of the environmental law of the country 1.

When our constitution was drafted it did not contain any specific provisions on
environment and even the word “Environment” did not find a place in the constitution;
there are certain provisions which to great extent had direct bearing on the environment
such as improvement of public health2, organization of agricultural and animal husbandry
on modern and scientific lines3 and protection of natural monuments from spoliation,
disfigurement etc4.

Article 47 of the Constitution is considered to be more important, because it

imposes the primary duty on the State to provide public with improved health, raised
level of nutrition and ultimately improved standard of living. Public health can be assured

1
Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 at 659-660.
2
Article 47 “The State shall regard the raising of the level of nutrition and the standard of living of its
people and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health”.
3
Article 48 “The State shall endeavour to organise agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving the breeds and
prohibiting the slaughter, of cows and calves and other milch and draught cattle”.
4
Article 49 “It shall be the obligation of the State to protect every monument or place or object of
artistic 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”.

24
to the public only by offering the safe and protected environment to live in. This enabled
the framers of our Constitution to be more conscious on the environmental concern.

The then Prime Minister Mrs. Indira Gandhi, in the first International Conference
on Human Environment at Stockholm in 1972, voiced deep concern about the
degradation of the environment and eco-imbalances. She also emphasized that pollution,
population and poverty are inter-related problems and there must be an integrated
approach to deal with them. India was also one of the signatories of the Stockholm
Declaration which is known as Magna Carta on human environment. Based upon the
Stockholm conference, the Indian parliament passed the forty second amendment to the
constitution in the year 19765 and incorporated specially two Articles relating to
protection and improvement of environment where in the Constitution of India obligates
the “State” as well as “Citizens” to “Protect and Improve” the environment 6.

2.2. Environmental Protection and Preamble of the Constitution

The preamble7 of our Constitution provides that our country is based on

“Socialistic” pattern of society, where the State pays more attention to the social
problems than on any individual problems. Environmental pollution which has emerged
as one of the biggest social problems is being regarded as a real problem affecting the
society at large and thus state is under an obligation to fulfil the basic aim of socialism,
that is, to provide decent standard of living to all which can be possible from a pollution
free environment8.

5
The Constitution (42nd Amendment) Act, 1976 received the assent of President of India on December 16,
1976.
6
Article 48-A “Protection and improvement of environment and safeguarding of forests and wild life:
The State shall endeavour to protect and improve the environment and to safeguard the forests and
wild life of the country”. Article 51A(g) It shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and wild life and to have compassion
for living creatures;
7
The Constitution of India 1949 Preamble: “We, The People of India, Having Solemnly Resolved to
Constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and To Secure to all its Citizens:
Justice, Social, Economic and Political; Liberty of Thought, Expression, Belief, Faith and Worship; Equality
of Status and of Opportunity; and to Promote among them all Fraternity Assuring the Dignity of the
Individual and the Unity and Integrity of the Nation; In Our Constituent Assembly this Twenty Sixth Day of
November 1949 , Do Hereby Adopt, Enact and Give to Ourselves this Constitution.
8
Dr.Sukanta K.Nanda, Environmental Law, 65 (Central Law Publication: Allahabad, 1st Edn., 2007).

25
 The preamble further declares that, the great rights and freedoms which the
people of India intended to secure all citizens include justice, social, economic and
political. Justice also includes environmental justice. Although the particular word
‘environment’ does not find a place here, we can very well interpret this to include
environmental justice. Environment as a subject matter has entered in our day
to-day life in such a way that we cannot ignore deliberations on environmental matters
when discussing about socio-economic or socio-political scene of the country9.

Environmental justice is also supported by the words of K.S. Dakshinamurty that,

“Environment as a subject, environment as a concern and environment as part of socio-
economic-political structure in the country seems to have taken of. In fact it has entered
the structure in such a way that no intellectual, political or academic discourse is
complete without it”10.

The Preamble also declares India to be a “Democratic Republic”. In a

democratic set up, people have the right to participate in government decisions. They also
have the right to know and access to information of government policies which is very
important for the success of the environment policies11.

2.3. Division of Legislative Powers in Environmental Matters

Under Indian federal system, governmental power is shared between the Union
and the State governments. Part XI of the Constitution governs the legislative and
administrative relations between the union and the states. Parliament has the power to
legislate for the whole country, while the State Legislatures are empowered to make laws
for their respective states. Article 246 of the Constitution divides the subject areas of
legislation between the union and the states. The union list (List I) in the seventh
schedule to the Constitution contains subjects over which parliament has exclusive power
to legislate12. This include defence, foreign affair, atomic energy, inter-state transportation,

9
Dr.Sukanta K Nanda, Environmental Law, 65 (Central Law Publication: Allahabad, 1st Edn., 2007).
10
K.S. Dakshinamurty, “Politics of Environment”, Economic and Political Weekly, Vol. 21 No. 18
(1986) p. 773.
11
P. S. Jaswal and Nishtha Jaswal, Environmental Law, 37 (Allahabad Law Agency: Haryana, 3rd Edn., 2009).
12
Article 246 (1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), parliament has exclusive power to
make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the union list).

26
shipping, major ports, regulation of air traffic, regulation and development of oil fields,
mines and mineral development and inter-state rivers. The State Legislatures have
exclusive powers to legislate with respect to subjects in the State List13 (List II), such as
public health and sanitation, agriculture, water supplies, irrigation and drainage and
fisheries. Under the Concurrent list14 (List III) both Parliament and State Legislatures
have overlapping and shared jurisdiction over some subject areas including forest, the
protection of wild life, mines and mineral developments not covered in the union list,
population control and family planning, minor ports and factories.

Parliament has residual power to legislate on subjects not covered by the three
lists15. When a Central Law conflicts with a State Law on a concurrent subject the former
prevails. A State Law passed subsequent to the Central Law will prevail, however, if it
has received Presidential assent under Article 25416.

13
Article 246 (4) parliament has power to make laws with respect to any matter for any part of the
territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in
the State List.
14
Article 246 (2) Notwithstanding anything in clause ( 3 ), Parliament and, subject to clause ( 1 ), the
legislature of any State also, have power to make laws with respect to any of the matters enumerated in
List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List).
15
Article 248 (1) Parliament has exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List.
16
Article 254 Inconsistency between laws made by parliament and laws made by the Legislatures of
States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of
a law made by Parliament which Parliament is competent to enact, or to any provision of an existing
law with respect to one of the matters enumerated in the Concurrent List, then, subject to the
provisions of clause (2), the law made by Parliament, whether passed before or after the law made by
the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made
by the Legislature of the State shall, to the extent of the repugnancy, be void (2) Where a law made by
the legislature of a State with respect to one of the matters enumerated in the concurrent List contains
any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legislature of such State shall, if it has been
reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with
respect to the same matter including a law adding to, amending, varying or repealing the law so made
by the Legislature of the State.

27
 The parliament is also empowered to legislate in the ‘national interest’ on matters
enumerated in the State List17. In addition Parliament may enact Laws on State subjects,
for States whose legislatures have consented to central legislatures. Thus, the Water
(Prevention and Control of Pollution) Act of 1974 was enacted by the Parliament
pursuant to consent resolution passed by the State Legislatures 18.

The division of legislative powers shows that, there are ample provisions to make
laws dealing with environmental problems at the local level as well as at the national
level, but under the federal system, the Central Government controls the finances largely.
It may happen that when an industrial project is allocated to a particular state, it may have
some environmental impact in that state and thus it may be opposed by the environment
and planning department of the state concerned. On the other hand the Central
Government may threaten to withdraw the project from the State if its implementation is
opposed and resulting into a conflict between development and environment. This
conflict is being taken care of by the Environmental Impact Assessment (EIA) which is
an effort to anticipate measure and weigh the socio-economic and eco system changes
that may result from the proposed project.

In India, the need for EIA has been recognized even by the planning commission
by the Seventh Five Year Plan. However, existing system of administrative framework

17
Article 249 Power of Parliament to legislate with respect to a matter in the State List in the national
interest (1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of
States has declared by resolution supported by not less than two thirds of the members present and
voting that it is necessary or expedient in national interest that Parliament should make laws with
respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for
Parliament to make laws for the whole or any part of the territory of India with respect to that matter
while the resolution remains in force (2) A resolution passed under clause (1) shall remain in force for
such period not exceeding one year as may be specified therein: Provided that, if and so often as a
resolution approving the continuance in force of any such resolution is passed in the manner provided
in clause (1), such resolution shall continue in force for a further period of one year from the date on
which under this clause it would otherwise have ceased to be in force (3) A law made by Parliament
which Parliament would not but for the passing of a resolution under clause (1) have been competent
to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of
six months after the resolution has ceased to be in force, except as respects things done or omitted to be
done before the expiration of the said period.
18
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, 43 (Oxford University
Press: New Delhi, 2nd Edn., 2003).

28
with its centralized environmental appraisal may lead to conflict between the project
authorities and environmental authorities 19.

2.4. International Environmental Agreements and India’s Obligations

The objectives of international environmental agreements would be effectively

achieved if all relevant states become parties to them and rigorous implementation
including monitoring of compliance was ensured. India is a contracting party or signatory
to various international treaties and agreements relating to regional or global
environmental issues20. India is under an obligation to translate the contents and decisions
of International Conferences, treaties and agreements into the stream of national law.
Article 51(c) provides that “the State shall endeavour to foster respect for international
law and treaty obligations in the dealings of organized people with one another”.

Article 253 of the Constitution specifically empowers the Parliament “to make
any law for the whole or any part of the territory of India for implementing any treaty,
agreement or convention with any other country or countries or any decision made at any
international conference, association or other body”. The subject matters over which the
parliament can make laws are “participation in the international conferences, associations
and other bodies and implementing of decisions made there at”21 and “entering into
treaties and agreements with foreign countries and implementing of treaties, agreements
and conventions with foreign countries” 22. In view of the broad language used in Article
253 as also in entries 13 and 14 in Union List, the parliament has very wide power of
legislation including the subjects mentioned in the State List provided those issues are

19
P. S. Jaswal and Nishtha Jaswal, Environmental Law, 39 (Allahabad Law Agency, Haryana, 3rd Edn., 2009).
20
India has also made accession to the international covenant on Economic Social and Cultural Rights on
10th April, 1979. Article 12(1) of the covenant recognises the right of every one to the enjoyment of the
highest standard of physical and mental health. Article 12 (2)(b) of the covenant further states that the
steps should be taken by the state parties this convention to achieve the full realization of this right
which shall include those necessary for the improvement of all aspects of environmental and industrial
hygiene. India also participated in Stockholm Conference of 1972, Earth Summit of 1992, Earth
Summit plus Five of 1997 and Earth Summit at Johannesburg in 2002.
21
Entry No.13 of the Union List in the VII Schedule to the Constitution.
22
Entry No.14 of the Union List in the VII Schedule to the Constitution.

29
addressed at any international conferences, association or other body or it is the
implementation of any international treaty, agreement or convention23.

The first consequence of the broad provisions on the environment protection in

view of Article 253 read with Entries no. 13 and 14 of the Union List is that, the
Parliament can pass any law on environment protection and the same cannot be
questioned before the courts on the ground that the Parliament lacked legislative
competence24.

Secondly, in India the Parliament has made use of this power to enact the Air
(Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act
of 1986. The Preamble of these laws state that these Acts were enacted to implement the
decisions reached at the United Nations Conference on Human Environment held at
Stockholm in 1972.

In People’s Union for Civil Liberties v. Union of India25 the Supreme Court held
that the provisions of the International Covenant, which elucidates and go to effectuate
the fundamental rights guaranteed by our constitution, can certainly be relied upon by
courts as facets of those fundamental rights and hence, enforceable as such.

In Vellore Citizens Welfare Forum v. Union of India26 the Supreme Court held that it
is almost an accepted proposition of law that the rules of customary International Law which
are not contrary to the Municipal Law shall be deemed to have been incorporated in the
domestic law and shall be followed by the courts of law.

2.5. Duties of the Citizen Towards Environmental Protection

Prior to the Forty-Second Amendment, the Fundamental Law of the land attached
more importance on rights. The makers of the Constitution were concerned about the
23
P.S. Jaswal and Nishtha Jaswal, Environmental Law, 39-40 (Allahabad Law Agency, Haryana, 3rd Edn., 2009).
24
Let us remember in India, the higher Judiciary, that is Supreme Court and High Courts have the power
of judicial review under Article 32 and 226 respectively and they can strike down any Parliamentary
legislation if it is enacted without any legislative competence. The Supreme Court has nullified five
constitutional amendments which sought to diminish judicial power either directly or indirectly,
Kesavananda Bharati v. State of Kerala AIR 1973 S.C 1461, Indira Gandhi v. Raj Narain AIR 1973
S.C 2299, Minerva Mills Ltd., v. Union of India AIR 1980 S.C 1789, Waman Rao v. Union of India
AIR 1981 S.C 271 and Sambamurthy v. State of AP AIR 1987 S.C 663.
25
(1997) 3 SCC 433 at 422.
26
(1996) 5 SCC 647 at 660.

30
moral and natural rights. The intention behind it was that the citizens and the State would
shoulder the responsibility to protect the Constitutional order as their moral duty. As the
time passes the citizens became conscious about their rights and thereby neglected their
duties. Rights and duties are very important elements of Law. They correlated to each
other in such a way that one cannot be conceived without the other. A right is always
against someone upon whom they correlative duty is imposed 27.

The Constitution (Forty-Second Amendment) Act, 1976 added a new part IV-A
dealing with “Fundamental Duties” in the Constitution of India28 Article 51-A (g) specially
deals with fundamental duty with respect to environment that: “It shall be the duty of
every citizen of India to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living creatures”.

Article 51-A (g) refers to the fundamental duty of every citizen to protect and
improve “natural environment”. But in the present days the pollution is caused not only
by exploiting the “natural environment” but otherwise also. Nature has given us the gift
of pollution free environment. The fundamental duty imposed on every citizen is not only
to “protect” the environment from any kind of pollution but also to “improve” the
environment quality if it has been polluted. So it is the duty of every citizen to preserve
the environment in the same way as nature has gifted it to all of us29.

In Rural Litigation and Entitlement Kendra v. State of UP30 Justice R.N. Mishra
opined that “preservation of the environment and keeping the ecological balance
unaffected is a task which not only the government but also every citizen must undertake.
It is a social obligation and let us remind every Indian citizen that it is his fundamental
duty as enshrined in Article 51-A(g) of the Constitution”.

In Kinkari Devi v. State31 Justice P.D. Desai remarked: “There is both a

constitutional pointer to the state and a constitutional duty of the citizens not only to

27
Dr.Sukanta K.Nanda, Environmental Law, 78 (Central Law Publication: Allahabad, 1st Edn., 2007).
28
Sec 11 of the Constitution (Forty-Second Amendment) Act, 1976 w.e.f 3.1.1977.
29
P.S. Jaswal and Nishtha Jaswal, Environmental Law, 45 (Allahabad Law Agency: Haryana, 3rd Edn.,
2009, Reprint 2012).
30
AIR 1987 SC 359.
31
AIR 1988 HP 4.

31
protect but also to improve the environment and to preserve and safeguard the forest, the
flora and fauna, the rivers and the lakes and all other water resources of the country. The
neglect or failure to abide by the pointer or to perform the duty is nothing short of
betrayal of the fundamental law which the state and indeed the every Indian is bound to
uphold and maintain”.

In L. K. Koolwal v. State of Rajasthan and Ors32 Mr.L.K.Koolwal moved the

High Court under Article 226 and highlighted that the Municipality has failed to
discharge its “primary duty” resulting in the acute sanitation problem in Jaipur which is
hazardous to the life of the citizens of Jaipur. The Court explained the true scope of
Article 51-A in the following words: “We can call Article 51-A ordinarily as the duty of
the citizens, but in fact it is the right of the citizens as it creates the right in favour of the
citizens to move to the court to see that the State performs its duties faithfully and the
obligatory and primary duties are performed in accordance with the law of the land.
Omissions or commissions are brought to the notice of the court by the citizen and thus,
Article 51-A gives a right to the citizens to move the court for the enforcement of the
duty caste on the state, instrumentalities, agencies, departments, local bodies and
statutory authorities created under the particular law of the state.

The court pointed out that “right and duty co-exists. There cannot be any right
without any duty and there cannot be any duty without any right”. Insanitation leads to a
slow poisoning and adversely affects the life of the citizens and hence it falls within the
purview of Article 21 of the constitution. It is the duty of the every citizen to see that
rights which he has acquired under the constitution are fulfilled 33.

The Court directed the Municipality to remove dirt, filth etc., from the city with in
the period of six months. The Court made it clear that it is not the duty of the court to see
whether the funds are available or not. It is the duty of the administration and municipal
council to see that primary duties are fulfilled. The Court concluded the judgment by
observing that, “If the Legislature or the State government feels that the law enacted by
them cannot be implemented then the Legislature has the liberty to scrap it, but which

32
AIR 1988 Raj 2.
33
M.C.Mehta v. State of Orissa, AIR 1992 Ori 225.

32
remains on the statutory books will have to be implemented, particularly when it relates
to primary duty34.

In Goa Foundation v. State of Goa35 the Bombay High Court examined the
question of locus standi from the premises of the fundamental duties under the
constitution of India. In this case the petitioner was a society registered under the law
relating to registration of societies and their members were citizens of India having
fundamental duty under Article 51-A to protect and improve the natural environment
including forests, lakes, rivers and wild life and to have compassion for living creatures.
The question before the Court was whether such a society also has the same duty.
The Court answered this question in affirmative and held that such a society also has the
same duty. On the basis of this the petitioner society was held to have a locus standi to
move to the Court to prevent ecological degradation, to formulate and implement
programme for rehabilitation of environment and to restore ecological balance.

In Sitaram Chhaparia v. State of Bihar36 public interest litigation was filed by

five persons, residents of a locality seeking directions from the court for closure of tyre
retreading plant in the residential area as the said industry was emitting carbon-di-oxide
gas and other obnoxious gases from its furnaces causing harm to the environment of the
locality. The Patna High Court held that protecting the environment is now a fundamental
duty under Article 51-A of the Constitution and accordingly the respondents were
directed to wind up their industry and the State respondents were obliged to ensure that.

As regard the duty contained in Article 51-A(g) of the Constitution in Abhilash

Textiles v. Rajkot Municipal Corporation37 has held that notices asking the petitioner to stop
discharging the effluents from the factory on public road or drainage having natural
environment on the pain of closing the factory will be valid.

34
Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622.
35
AIR 2001 Bom 318 at 319.
36
AIR 2002 Pat 134.
37
AIR 1988 Guj 57.

33
2.6. Duties of the State Towards Environmental Protection

Article 47 of the Constitution which reads:

“The State shall regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among its primary
duties and, in particular, the State shall endeavour to bring about prohibition of
the consumption except for medical purposes of intoxicating drinks and drugs
which are injurious to health”.

The basic principle embodied in the Article very clearly denies the statement to
some of the learned authors that initially our Constitution was environmentally blind 38
and environment as a subject has been left out of the Constitution. Article 47 calls upon
the State to perform the basic duty to look after the health of the citizen and also take
necessary and effective steps to improve their standard of living and also raise the level
of nutrition. Improvement of public health forms the core of environment because due to
various environmental hazards it is the health of the general people which comes under
severe threat. In order to protect the health the framers of the Constitution gave emphasis
on the improvement of public health which is more vital for the existence of the mankind.

In the present times several factors account for the pollution hazards which is
going beyond control. The pollution of water and air spoils the nature very well and affect
our health. Therefore, taking into consideration, the Constitution very aptly recognized the
right to health and casts a responsibility upon the State making it obligatory to work for
improving the health of the citizens.

In Talcher Swasthya Surakshya Parishad v. Chairman-Cum-MD Mohanadi Coal

Fields Ltd., and Others39 it was alleged that due to the operation of the collieries in the
Talcher area, the people of Talcher town and nearby areas have been affected as there is
no pure air to breathe and pure water to drink. They are forced to inhale such air being
exposed to dust and effluent material and also are forced to take contaminated water
which has become unsuitable for drinking purposes due to such dust and effluent articles.

38
K.L.Bhatia, “Human Rights and Human Environment – A Study in the Policy Perspectives”, ALJ, Vol. 10
(1990) p.46.
39
AIR 1996 Ori 195.

34
It was also alleged that due to extraction done from underneath the ground surface, land is
becoming loose and there have been several instances of seepage of water and subsidence of
earth, thereby endangering human life and property. In this case the High Court observed that:

“It is needless to say that all concerned, i.e., the governments, the government
agency like the Pollution Control Board, the coal-mines owners operating in the area
have to ensure that at the altar of industrial development, environment and
consequentially health of the people do not get sacrificed. It is the function of the
Pollution Control Board to ensure that the rigid guidelines required to be followed in the
matter of air and water pollution. Statistics may not always reflect the correct state of
affairs. In the maze of figures, let welfare of people is not lost”.

The Pollution Control Board was directed to take strict steps after determining
consequences of such pollution and see that there is no reoccurrence. It was further
directed by the Court that, “for industrial development, the people should not become ill
on account of collapse of buildings, surface erosion and water pollution 40.

In Hamid Khan v. State of Madhyapradesh41 it was held that there was a gross
negligence on the part of the state government in not taking proper measure before
supplying drinking water from hand-pumps which has resulted in colossal damage to the
people, the Court held that the State was responsible and has failed to discharge its
primary responsibility.

With the objective of affording better protection to the environment, the

Constitution was amended in the year 1976 and a new Article 48-A was inserted into the
Constitution which reads:

“The State shall endeavour to protect and improve the environment and safeguard
the forests and wild life of the country”.

This Article used the word ‘Environment’ in a wider sense which affects all the
living being and influences the conditions of their lives. Water and air are among such
important factors which mould the life of the citizens. Billions of years have passed

40
Dr.Sukanta K.Nanda, Environmental Law, 75 (Central Law Publication: Allahabad, 1st Edn., 2007).
41
AIR 1997 MP 191.

35
and the society is still dependant on water and also will continue to do so, thus proving the
necessity and vitality of water for the existence of the mankind. Hence, it becomes the pious
duty and responsibility of the State to protect the water and water resources as well as whole
environment from all activities. So if we construe the Article, this necessarily requires the
State not only to adopt the protectionist policy but also to provide for the improvement of the
environment.

Article 48-A further provides “to safeguard the forests and wild life”. This is an
important provision as the environment is greatly influenced by forests and wild life. The
forests in particular has a direct relation with water pollution as the forest is responsible
for natural rain which protects against pollution to a great extent and again by
maintaining a balance, it constitutes an important safeguard against atmosphere pollution.
In this way the forests contribute a lot in protecting the pollution of water42.

In India, the judicial attitude in protecting and improving the environment provides a
testimony of the fact that, directive principles are not mere “guiding principles” of policy but
they have to be given effect to.

In Shri. Sachidanand Pandey v. State of West Bengal43 the Supreme Court pointed
out that whenever a problem of ecology is brought before the court, the court is bound to
bear in mind Articles 48-A and 51-A (g) of the Constitution, the Court further observed:
“When the Court is called upon to give effect to the directive principles and the
fundamental duty, the court is not to shrug its shoulders and say that priorities are a
matter of policy. The least the Court may do is to examine whether appropriate
consideration are borne in mind and irrelevancies excluded. In appropriate cases, the
Court may go further, but how much further must depend on the circumstances of the
case. The Court may always give necessary directions. However, the Court will not
attempt to nicely balance relevant considerations. When the question involves nice
balancing of relevant considerations, the court may feel justified in resigning itself to
acceptance of the decision of the concerned authority”.

42
Dr. Sukanta K. Nanda, Environmental Law, 76 (Central Law Publication: Allahabad, 1st Edn., 2007).
43
AIR 1987 SC 1109.

36
 In T. Damodhar Rao. v. S. O Municipal Corporation, Hyderabad44 the court
pointed out that in view of Articles 48-A and 51-A(g), it is clear that protection of
environment is not only the duty of every citizen but it is also the “obligation” of the
State and all other State organs including courts. In M.C. Mehta v. Union of India45 the
court observed that Articles-39(e), 47 and 48-A by themselves and collectively casts a
duty on the State to secure the health of the people, improve public health and protect and
improve environment.

The cumulative effect of Articles 48-A and 51-A(g) appears to be that the ‘State’
as much as the ‘Citizens’ both are now under a constitutional obligation to conserve,
preserve, protect and improve the environment.

2.7. Environmental Protection and Right to Life

Article 21 of the Constitution which reads:

“No person shall be deprived of his life or personal liberty except according to
procedure established by Law”.

The right to life as guaranteed by Article 21 of the Constitution is basic human

right and the concept of right to life and personal liberty have been transformed into
positive rights by active judicial interpretation. A new era ushered in the post Maneka
period46 the concept of right to life witnessed new developments and new dimensions
were added to the interpretation of fundamental rights embodied in Article 21. Prior to
this all the fundamental rights guaranteed in Part III of the Constitution were considered
to negative in nature and imposing only negative obligation on the State47. For the first
time, thus Supreme Court transformed these rights into positive rights and imposed an
affirmative duty on the State to enforce it.

This view of the Supreme Court was also reflected in Francis Carolie Mulhin v.
Administrator Union Territory of Delhi48 where Justice Bhagawati observed that “the

44
AIR 1987 AP 171.
45
(2002) 4 SCC 356. (popularly known as CNG case).
46
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
47
Anand, K. Khan and Bhatt, Law, Science and Environment, 189 (Lancers: New Delhi, 1987).
48
AIR1981 SC 746.

37
right to life enshrined in Article 21 cannot be restricted to mere animal existence. It
means something more than just physical survival”. Further he added:

“Right to life includes the right to life with human dignity and that goes along
with it, namely, the bare necessities of life such as adequate nutrition, clothing
and shelter over the head and facilities for writing and expressing oneself in
diverse forms with fellow human beings. Of course, the magnitude and contents
of the components of this right would depend upon the extent of the economic
development of the country but it must, in any view of the matter include the right
to basic necessities of life”.

Again the Apex Court in Chameli Singh v. State of UP49 held that the need for a
decent and civilized life includes the right to food, water and a decent environment. In the
same sentiment the Court was of the opinion that:

“In any organized society, the right to live as human being is not ensured by
meeting only the animal need of men. It is secured only when he is assured of all
facilities to develop himself and is freed from restrictions which inhibit his
growth. All human rights are designed to achieve this subject. The right to live
guaranteed in any civilized society implies the right to food, water, decent
environment, education, medical care and shelter. These are basic human rights
known to any civilized society. All civil, political, social and cultural rights
enshrined in the Universal Declaration on Human Rights or Convention or under
the Constitution of India cannot be exercised without these human rights”.

Observing the stand taken by the Apex Court and considering the relation
between fundamental rights and environmental protection, it was pointed out by Shyam
Divan and Armin Rosencranz as:

“Encouraged by an atmosphere of freedom and articulation in the after math of

the emergency, Supreme Court entered one of its most creative periods. Specially, the
court fortified and expanded the fundamental rights enshrined in Part III of the

49
AIR 1996 SC 1051.

38
Constitution. In the process, the boundaries of the Fundamental right to life and personal
liberty guaranteed in Article 21 were expanded to include environmental protection” 50.

2.7.1. Right to Live in a Healthy Environment

Article 21 guarantees the right to life, a life of dignity, to be lived in a proper

environment, free of danger of disease and infection. It is an essential fact that there
exists a close link between life and environment. Right to life would become meaningless
if there is no healthy environment51.

The right to live in healthy environment as a part of Article 21 was evident from
the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.52 that the
Rural Litigation and Entitlement Kendra, Dehradun and a group of citizens wrote to the
Supreme Court against the progressive mining which denuded the Mussoori Hills of trees
and forests cover and accelerated soil erosion resulting in landslides and blockage of
underground water channels which fed many rivers and springs in the valley. The Court
ordered the registry to treat this letter as writ petition under Article 32 of the Constitution.
Initially the Court appointed an expert committee to advise the bench on technical issues.
On the basis of the report of the committee, the Court ordered the closure of the lime-
stone quarries. The Court observed:

“This is the first case of its kind in the country involving issues relating to
environment and ecological balance and the questions arising for consideration
are of great moment and significance not only to the people residing in the
Missouri Hill range but also in their implications to the welfare of the generality
of people, living in the country” 53.

It is also stated that, the disturbance of ecology and pollution of water, air and
environment by reason of quarrying operation definitely affects the life of the person and
thus involves the violation of right to life and personal liberty under Article-21 of the
Constitution.

50
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, 49 (Oxford University
Press: New Delhi, 2nd Edn., 2003).
51
P.S. Jaswal and Nishtha Jaswal, Environmental Law, 48 (Allahabad Law Agency: Haryana, 3rd Edn., 2009).
52
AIR 1985 SC 652 (popularly known as Doon Valley Case).
53
AIR 1985 SC 653.

39
 In M.C. Mehta v. Union of India54 the Supreme Court once again impliedly
treated the right to live in pollution- free environment as a part of fundamental right to
life under Article-21 of the Constitution. In M.C. Mehta v. Union of India55 where a
group of tanneries doing business on the banks of the river of Ganga were alleged to be
polluting the river. Justice K.N. Singh remarked:

“We are conscious that closure of tanneries may bring unemployment, loss of
revenue but life, health and ecology have greater importance to the people”.

In T.Damodhar Rao v. S.O. Municipal Corporation, Hyderabad 56 the A.P. High

Court observed that:

“It would be reasonable to hold that the enjoyment of life and its attainment and
fulfilment guaranteed by Article 21 of the Constitution embraces the protection
and preservation of nature’s gifts without which life cannot be enjoyed. There can
be no reason why practice of violent extinguishment of life alone should be
regarded as violative of Article 21 of the Constitution. The slow poisoning by the
polluted atmosphere caused by environmental pollution and spoliation should also
be regarded as amounting to violation of article 21 of the Constitution”.

In L.K. Koolwal v. State57 Rajasthan High Court held that the Maintenance of health,
preservation of the sanitation and environment falls within the purview of Article 21 of the
Constitution as it adversely affects the life of the citizen and it amounts to slow poisoning and
reducing the life of the citizen because of the hazards created, if not checked.

In Charanlal Sahu v. Union of India58 the Supreme Court of India held that, in the
context of our national dimensions of human rights, right to life, liberty, pollution free air
and water is guaranteed by the Constitution under articles 21, 48–A and 51 – A (g). It is
the duty of the State to take effective steps to protect the guaranteed Constitutional rights.

54
AIR 1987 SC 1086 (Popularly Known as Oleum Gas Leakage Case).
55
AIR 1988 SC 1037.
56
AIR 1987 AP 171.
57
AIR 1988 Raj 2.
58
(1990) 1 SCC 613.

40
 In F.K. Hussain v. Union of India59 the Kerala High Court pointed out that the
right to sweet water and the right to free air is attributes of right to life, those are the basic
elements which sustain life itself.

In Subash Kumar v. State of Bihar60 the Supreme Court observed:

Right to live is a fundamental right under Article 21 of the Constitution and it

includes the right of enjoyment of pollution - free water and air for full enjoyment
of life. If anything endangers or impairs that quality of life in derogation of laws,
a citizen has right to have recourse to Article 32 of the Constitution for removing
the pollution of water or air which may be detrimental to the quality of life.

In Rajiv Ranjan Singh v. State of Bihar61 the Patna High Court held that failure to
protect the inhabitants of the locality from the poisonous and highly injurious effects of
the distillery’s effluents and fumes amounted to an infringement of the inhabitants’ rights
guaranteed under Articles 14, 21 read with Articles 47 and 48-A of the Constitution of
India.

In M.C. Mehta v. Union of India62 the Supreme Court took note of environmental
pollution due to stone crushing activities in and around Delhi. The court was conscious
that environmental changes are the inevitable consequences of industrial development in
our country, but at the same time the quality of environment cannot be permitted to be
damaged by polluting the air, water and land to such an extent that it becomes a health hazard
for the residents of the area. Showing deep concern to the environment, the Court observed
that ‘every citizen has a right to fresh air and to live in pollution- free environment’.

In Obayya Pujari v. Member Secretary, KSPCB, Bangalore63 the stone crushing

business was carried out by the units holding proper licenses and necessary permissions.
They were causing environmental pollution and affecting health of the human beings,
animals and vegetation. The Court held that the right to life is most fundamental right as
enshrined in Article 21 of the Constitution of India and such right includes all attributes
59
AIR 1990 Ker 321 at 323.
60
(1991) 1 SCC 598.
61
AIR 1992 Pat 86.
62
(1992) 3 SCC 256.
63
AIR 1999 Kant 157.

41
of life. Accordingly the Court directed the State Government, to immediately formulate a
policy regulating carrying on stone crushing business and directed the state to identify
safer zones for stone crushing within one year.

In P.A. Jacob v. Superintendent of Police, Kottayam64 the Kerala High Court held
that compulsory exposure of unwilling persons to dangerous and disastrous levels of
noise, would amount to a clear infringement of their constitutional guarantee of right to life
under Article 21. Right to life, comprehends right to a safe environment, including safe air
quality, safe from noise.

In K.C. Malhotra v. State65 the Madhya Pradesh High Court held that right to live
with human dignity is the fundamental right of every Indian citizen and therefore, in the
discharge of its responsibilities to people, State has to provide at least minimum
conditions ensuring human dignity. Accordingly, the Court directed that there must be
separate sewage line from which the filthy water may flow out. The drainage must be
covered and there should be proper lavatories for public convenience which should be
regularly cleaned. Public health and safety cannot suffer on any count and all steps to be
taken as Article 47 makes it a paramount principle of government for the improvement of
public health as its primary duties.

In Law Society of India v. Fertilizers and Chemicals Travancore Ltd.,66 the

Kerala High Court held that deprivation of life under Article 21 of the Constitution of
India comprehends certainly deprivations other than total deprivation.
The guarantee to life is certainly more than immunity from annihilation of life. Right to
healthy environment is part of the right to life.

In Kholamuhana Primary Fishermen Co-op. Society v. State67 the Orissa High

Court held that the right to life conferred by Article 21 of the Constitution includes the
right of enjoyment of pollution -free atmosphere.

In Virender Gaur v. State of Haryana68 the Supreme Court observed:

64
AIR 1993 Ker 1.
65
AIR 1994 MP 48.
66
AIR 1994 Ker 308.
67
AIR 1994 Ori 191 at 207.

42
 “Enjoyment of life and its attainment including their right to live with human
dignity encompasses within its ambit, the protection and preservation of
environment, ecological balance free from pollution of air and water, sanitation
without which the life cannot be enjoyed. Environmental, ecological, air and
water pollution etc., should be regarded as amounting to violation of Article 21.
Therefore hygienic environment is an integral facet of right to healthy life and it
would be impossible to live with human dignity without a human and healthy
environment”.

In Indian Council for Enviro-Legal Action v. Union of India69 (popularly known

as H-Acid Case) a public interest litigation was field by an environmentalist organization,
against the Union of India, State Government and State Pollution Board concerned to compel
them to perform their statutory duties on the ground that their failure to carry on such duties
violated rights guaranteed under Article 21 of the residents of the affected area.

In Dr.Ashok v. Union of India70 the Supreme Court held that by giving an

extended meaning to the expression “life” in Article 21 of the Constitution, the Court had
brought health hazard due to pollution within it and so also the health hazards from use of
harmful drugs.

In A.P. Pollution Control Board (II) v. Prof.M.V.Nayadu71 the Supreme Court

stated that the rights to healthy environment and to sustainable development are
fundamental human rights implicit in the right to life. Our Supreme Court was one of the
first Courts to develop the concept of “healthy environment” as part of right to “life”
under Article 21 of the Constitution.

Thus from the perusal of all above mentioned cases it is evident that there has
been a new development in India and right to live in a healthy and pollution free
environment is considered as the fundamental right under Article 21, without this, right to
life and livelihood would become meaningless and it is evident that the judiciary has
certainly prevented the flagrant violation of the right to safe environment.
68
(1995) 2 SCC 577.
69
(1996) 3 SCC 212.
70
(1997) 5 SCC 10.
71
(2001) 2 SCC 62 at 70-71.

43
2.7.2. Right to Livelihood and Environment

The judiciary has further broadened the scope and ambit of Article 21 and now
“right to life” includes the “right to livelihood”. The right to earn livelihood is also
considered as a part of right to life under Article 21 of the Constitution72. This broad
interpretation of the right to life is very helpful in checking the governmental action
which has an environmental impact that threatens the poor people of their livelihood by
dislocating them from their place of living or otherwise depriving them of their
livelihood.

The right to livelihood as a part of right to life under Article 21 was recognised by the
Supreme Court in Sodan Singh v. N.D.M.C.,73 Ahamadabad Municipal Corporation v.
Nawab Khan Gulab Khan,74 Ramesh Chander v. Imtiaz Khan,75 and Olga Tellis v. Bombay
Municipal Corporation76 in this case the petitioners, a journalist and two pavement
dwellers challenged the governmental scheme by which the pavement dwellers were
being removed from the Bombay pavements. The main argument advanced on behalf of
the petitioners were that evicting a pavement dweller or slum dweller from his habitat
amounts to depriving him of his right to livelihood. It was further argued that no person can
be deprived of his life except according to the procedure established by law which has to be
“just, fair and reasonable”77. The petitioners also contended that the State is under an
obligation to provide citizens the necessities of life and in appropriate cases the Courts have
the power to issue orders directing the State by affirmative action. The court observes:

“If the right to livelihood is not treated as a part of the constitutional right to life, the
easiest way of depriving a person of his right to life would be to deprive him of his
means of livelihood to the point of abrogation. Such deprivation would not only denude
the life of its effective content and meaningfulness but it would make life impossible to
live”.

72
State of H.P. v. Umed Ram, AIR 1986 SC 847.
73
(1989) 4 SCC 155.
74
(1997) 11 SCC 121.
75
(1998) 4 SCC 760.
76
AIR 1986 SC 180.
77
Maneka Gandhi v. Union of India, AIR 1978 SC 597.

44
 The court further directed the Municipal Corporation to provide alternate sites or
accommodation to slum and pavement dwellers within reasonable distance of their
original sites and to earnestly pursue housing scheme for the poor and to provide basic
amenities to slum dwellers.

In K.Chandru v. State of T.N78 the Supreme Court held that if the government plans
the construction of a large dam or any other project without making proper environmental
impact assessment and resulting in the displacement of persons from their habitat,
thereby depriving them of their livelihood, then that action can be declared as
unconstitutional being violative of Article 21 of the Constitution. The procedure of
displacing the people from their habitat can be called “just, fair and reasonable” only
when they are provided with suitable alternative sites with all basic amenities of life.

When there is any conflict between environment and development, the question to
be considered in the larger dimensions of national complexities is that, on the one hand
for the national progress and growth, the construction of dams, thermal power plants and
exploitation of natural resources are a must. On the other hand, these actions may infringe
the fundamental rights of the people in the area where that project is undertaken.

Judiciary in India has been very cautious in reconciling the environmental

interests with the developmental process and avoiding any kind of conflict between the
two. In Banwasi Seva Ashram v. State of U.P.79 the main grievance of the petitioner was that
Adivasis and other backward people (tribal forest dweller) were using forest as their habitat
and means of livelihood. Part of the land was declared reserved forest and in respect of
other part acquisition proceedings were initiated as the government had decided that a
Super Thermal Plant of the National Thermal Power Corporation Ltd., (NTPC) was to be
located there. The Supreme Court gave directions safeguarding and protecting the
interests of the Adivasis and backward people who were being ousted from their forest
land by NTPC. The Court permitted the acquisition of land only after NTPC agreed to
provide certain facilities to the ousted forest dwellers.

78
AIR 1986 SC 204.
79
AIR 1987 SC 374.

45
 In this case the court impliedly treating the right of the Adivasis under Article 21
and observed that “it is common knowledge that Adivasis and other backward people
living within the jungle used the forest area as their habitat and for generations. They had
been using jungles around for collecting the requirements for their livelihood, fruits,
vegetables, fodder, flowers, timber, animals by way of sport and fuel wood. At the same
time the Court highlighted that for industrial growth as also for provisions of improved
living facilities there is a great demand in this country for energy such as electricity”.

In Karjan Jalasay Y.A.S.A.S. Samiti v. State of Gujarat80 the Supreme Court also
passed the interim orders under Article 32 requiring the state agencies to resettle and
rehabilitate the tribal people who were being displaced by dams.

In Pradeep Krishen v. Union of India81 the Madyapradesh Government issued an

order permitting collection of tendu leaves from sanctuaries and national parks by
villagers/tribal living around the boundaries thereof with the object of maintenance of
their traditional rights including the right to livelihood. This order was challenged by
public interest litigation for the protection of ecology, environment and wild life in
sanctuaries and national parks. The Supreme Court in the circumstances of this case
refused to squash the order and held that if one of the reasons for shrinkage of the forest
cover is entry of these villagers/tribal urgent steps must be taken to prevent any
destruction or damage to the environment, wild life, flora and fauna. The Supreme Court
in the above case protected the right to livelihood of the tribal on the one hand and
showed its concern for the protection of the ecology on the other hand.

In Animal and Environmental Legal Defence Fund v. Union of India82 the

petitioner, an association of lawyers and other persons who were concerned with the
protection of environment, filed a public interest litigation challenging the order of the
chief Wildlife Warden, Forest Department, granting 305 fishing permits to tribal villagers
formerly residing within the National Park area for fishing in the reservoir situated in the
heart of the National Park.

80
AIR 1987 SC 532.
81
(1996) 8 SCC 599.
82
(1997) 3 SCC 549.

46
 The Supreme Court once again showed its concern for the right to livelihood of
the tribal villagers and observed that it could have been more desirable, had the tribal’s
been provided with suitable fishing areas outside the National Park or if land had been
given to them for cultivation.

In M.C. Mehta v. Union of India83 public interest litigation was filed to protect
Delhi from the environmental pollution caused by hazardous/noxious/heavy/ large industries
operating in Delhi. The Court held that such industries are liable to be shifted /relocated
to other towns of National Capital Region (NCR) as provided under the Master plan for
Delhi Perspective 2001. The Court directed 168 industries, which were identified as such
to stop functioning/operating in the city of Delhi and they could shift or relocate
themselves to any other industrial estate in NCR.

The Supreme Court in order to mitigate the hardship to the employees of such
industries due to their closure/shifting/ relocation specified the rights and benefits to
which workmen employed in these 168 industries were entitled on relocation/shifting of
these industries. Subsequently, the Supreme Court has also issued the package of
compensation for workmen employed in industries which are not relocating/ shifting or
closing down as per earlier directions of the Supreme Court84. Thus, the Supreme Court
protected the right to livelihood of the workmen and tried to balance the industrial
development and environment protection.

In M.C.Mehta v. Union of India85 (popularly known as Tajmahal case) the

Supreme Court once again followed the path of sustainable development and directed that
the industries operating in Taj Trapezium Zone (TTZ) using coke/coal as industrial fuel
must stop functioning and they could relocate to the alternate site provided under the
Agra Master Plan. In this case also the Supreme Court specified the rights and benefits to
which the workmen of such industries were entitled and thus, protected their right to
livelihood86 and followed the guiding principle of sustainable development.

83
(1996) 4 SCC 750.
84
M.C. Mehta v. Union of India, (1997) 11 SCC 327; F.B. Taraporawala v. Bayer India Ltd. (1996) 6
SCC 58; Buffalo Trader’s Welfare Association v. Maneka Gandhi, (1996) 11 SCC 35.
85
(1997) 2 SCC 353; Kholamuhana Primary Fishermen Co-op Society v. State AIR 1994 Orissa 191.
86
(1997) 2 SCC 384-385; S.Jagannath v. Union of India (1997) 2 SCC 87 at 150.

47
 From the various decisions of the Supreme Court it is evident that development is
not antithetical to environment. However, thoughtless development can cause avoidable
harm to the environment as well as it deprives the people of their right to livelihood.

2.7.3. Right to Know and Environment

The right to know is also implicit in Article 19(1) (a) and it has a close link with
Article 21 of the Constitution particularly in environmental matters where the secret
government decision may affect health, life and livelihood of the people. The right to
know or access to information is the basic right for which the people of democratic
country like India aspire for. Secrecy erodes the legitimacy of elected governments.
On the other hand, the right to know strengthens the participatory democracy.

The right to know plays a very important role in environmental matters.

Any governmental plan of construction of dam or information of the proposed location of
nuclear power stations or thermal power plants and hazardous industries, which directly
affect the lives and health of the people of that area, must be widely published.

The Judiciary has broadened the scope of the right to know in S. P. Gupta v.
Union of India87 the Supreme Court recognized the right to know to be implicit in the
right to free speech and expression. The Supreme Court observed:

“This is the new democratic culture of an open society towards which every
liberal democracy is moving and our country should be no exception. The concept
of open government is the direct emanation from the right to know which seems
to be implicit in Article-19(1) (a). Therefore, disclosures of information in regard
to the functioning of the government must be the rule and secrecy exception
justified only where the strictest requirements of public interest so demands”.

In L.K. Koolwal v. State88 the Rajasthan High Court held that a citizen has a right
to know about the activities of the State, the instrumentalities, the departments and
agencies of the State. The Court further held that, “the State can impose and should
impose reasonable restrictions in the matter like other fundamental rights where it affects

87
AIR 1982 SC 149 at 234.
88
AIR 1988 Raj 2.

48
the national security and other matter affecting the nation’s integrity. But this right is
limited and particularly in the matter of sanitation and other allied matter every citizen
has a right to know how the state is functioning and why the state is withholding such
information in such matters”.

In R.P. Ltd., v. Proprietors, Indian Express Newspapers, Bombay Pvt. Ltd.,89 the
Supreme Court held that “we must remember that the people at large have a right to know
in order to be able to take part in a participatory development in the industrial life and
democracy. Right to know is a basic right to which citizen of a free country aspires in the
broadening horizon on the right to life in this age on our land under Article 21 of the
Constitution”.

In F.B. Taraporawala v. Bayer India Ltd.,90 where the question before the court
was regarding the relocation/shifting of chemical industries from the populated area of
Thane in Mumbai, the Court felt that it has neither the expertise nor in possession of
various information which was required to decide one way or the other so far as the
question of relocation is concerned. The Court also directed the Constitution of an
“authority” under section 3(3) of the Environment (Protection) Act, 1986, which was
required to examine the entire matter. Such an authority would have power to examine
and know various aspects of development and environment protection and take action
accordingly.

In Research Foundation for Science Technology and Natural Resource Policy v.

Union of India91 the Supreme Court has stated that the right to information and
community participation necessary for protection of environment and human health is an
inalienable part of Article 21 and is governed by the accepted environment principles.
Accordingly, the government and the authorities have to motivate the public participation
by formulating necessary programmes.

89
AIR 1989 SC 190.
90
(1996) 6 SCC 58.
91
(2005) 10 SCC 510 at 532.

49
2.8. Right to Equality and Environment

The Indian Constitution guarantees ‘right to equality’ 92 to all persons without any
discrimination. This indicates that any action of the ‘State’ relating to environment must
not infringe upon the right to equality as mentioned in the Article 14 of the Constitution.
The Stockholm Declaration, 1972, also recognized this principle of equality in environmental
management93 and it called up all the worlds’ nations to abide by this principle.

The judiciary, on various occasions, have struck down the arbitrary official
sanction in environmental matters on the basis that it was violative of Article-1494.
The right to equality is generally resorted to in urban development where permission for
construction is granted by the authorities arbitrarily under its discretionary powers
without evaluating the public interest and without application of mind and considering
the environmental impacts.

In Bangalore Medical Trust v. B.S Muddappa95 the Supreme Court prevented an

attempt to convert a public park site into nursing home. The City Improvement Board of
Bangalore had prepared the Development scheme for the extension of the City of
Bangalore. Under the scheme an area was kept for being developed as low Level Park.
Subsequently, under the direction of the Chief Minister of the State the area kept for
laying a park was converted to a civic amenity site where hospital was to be constructed
by the appellant. When the construction activity was noticed, the resident of the area
approached the High Court which allowed the petition. The Appellant came in appeal
before the Supreme Court contenting that the decision to allot a site for a hospital rather
than a park is matter within the discretion of the development authority and thus, the
diversion of the user of the land for that purpose is justified under the Act.
The Supreme Court dismissed the appeal and highlighted the importance of public parks
and open space in Urban Development as follows:

92
Article 14: The State shall not deny to any person equality before law and equal protection of laws
within the territory of India.
93
The Stockholm Declaration, 1972, Principle I, ‘Man has the fundamental Right to freedom, equality and
adequate conditions of life, in an environment of a quality that permits a life of dignity and well being’.
94
Ajay Hasia v. Khalid Mujib AIR 1981 SC 487 at 499.
95
(1991) 4 SCC 54.

50
 “Protection of the environment, open spaces for recreation and fresh air, play
grounds for children and other conveniences are matters of great public concern
and are vital interest to be taken care of in a development scheme. The public
interest in the reservation and preservation of open spaces for parks and
playgrounds cannot be sacrificed by leasing or selling such sites to private persons
for conversion to some other user; it would be in direct conflict with the
Constitutional mandate”.

Judge R. M. Sahia in his judgment observed that public park as a place reserved
for beauty and recreation is associated with growth of the concept of equality and
recognition of importance of common man it is a, ‘gift from people to themselves’. Its
importance has multiplied with emphasis on environment and pollution. He further
pointed that the “discretion is an effective tool of administration”. When affecting public
interest, it should be exercised objectively, rationally, intelligibly, fairly and authority
cannot act whimsically or arbitrarily.

It was held that the decision taken at the instance of the Chief Minister of the
State to convert an open space reserved for public park into a site for constructing
hospital and to allot the site to a private person was vitiated by non application of mind
and was arbitrary, hence ultra vires and violation of Article 14 of the Constitution.

In D.D. Vyas v. Ghaziabad Development Authority96 the grievance of the

petitioner is that the respondents had not taken any steps to develop the area reserved for
park. On the other hand, respondents were marking time to carve out plots on such open
space dedicated for Public Park in the plan and alienate the same with a view to earning
huge profits. The Allahabad High Court followed the dictum of the Supreme Court in
Bangalore Medical Trust case and held that the authority or the State cannot amend the
plan in such a way so as to destroy its basic feature allowing the conversion of open
spaces meant for Public Park. The Court was of the view that the respondents having
failed to develop the park, have reminded grossly negligent in discharging their
fundamental duty under Article 51-A (g) of the Constitution.

96
AIR 1993 All 57.

51
 In State of Himachal Pradesh v. Ganseh Wood Products97 the Supreme Court
held that a decision making authority must give due weight and regard to ecological
factors such as the environmental policy of the government and the sustainable use of
natural resources. A government decision that fails to take into account relevant
consideration affecting the environment is invalid.

The Court also used Article 14 to justify the Government policy in certain cases.
In Kholamuhana Primary Fisherman Cooperative Society v. State98 the government had
framed a policy regarding fishing in Chilka Lake so as to protect the traditional rights of
fisherman. The Court held that the said policy was neither arbitrary nor ambiguous and
hence not violative of Article 14 of the Constitution. Further the Court pointed out that
adoption of extensive and intensive prawn culture to earn “prawn dollars” in disregard to
ecology was not proper.

The Court has also struck down the action of the authorities if it was taken
arbitrarily. In Mandu Distilleries Pvt. Ltd., v. M.P. Pradushan Niwaran Mandal99 the
Pollution Control Board issued direction for stoppage of production by the industry on
the ground that it was causing water pollution. However, the Court found that there was
serious flaw in “decision making process”. The decision was taken arbitrarily. The Court
quashed the order passed by the board as violative Article 14 of the Constitution.

In Ivory Traders and Manufacturers Association v. Union of India100 the Delhi

High Court justified the ban on the business in animal species on verge of extinction. The
Court held that the ban on trade in imported ivory and articles made there from is not
violative of Article 14 of the Constitution.

Article 14 can also be invoked to challenge the government action where

permission for mining and other activities with high environmental impact is granted
arbitrarily101.

97
AIR 1996 SC 149.
98
AIR 1994 Ori 191.
99
AIR 1995 MP 57.
100
AIR 1997 Del 267.
101
Kinkri Devi v. State of H.P. AIR 1988 HP 4 at 9.

52
2.9. Freedom of Speech and Expression and Environment

Article 19(1) (a) guarantees every citizen a fundamental freedom of speech and
expression. In India most of the environmental jurisprudence has developed by judicial
activism. Most of the cases came before the Court as a result of public interest litigations
(PILs) in which the people exercised their freedom of speech and expression sometimes
by writing letters to the court or otherwise by filing petitions before it, highlighting the
violation of the rights of the people to live in healthy environment in one way or the
other. Freedom of speech and expression under Article 19(1) (a) also includes freedom of
press102. In India the public opinion and media have played an important role in moulding
the public perception of environmental issues.

In Kerala Sastra Sahitya Parishad (KSSP) non governmetal organizations and

influential environmentalists within and outside the government and the role of the media
compelled the government to abandon “the Silent Valley Project”. In this case legal battle
played only a peripheral role. Again in the Tehri Dam project, the public opinion and
media compelled the government to make proper Environment Impact Assessment (EIA)
of the proposed dam and consider all the aspects of safety of the project. The decision of
the government to construct Tehri Dam was scrutinized by the Supreme Court in Tehri
Virodhi Sangarsh Samiti v. State of Uttar Pradesh103 in this case the main grievance of
the petitioners was that safety aspect have not been taken into consideration by the
government in the Tehri Dam Project. The Court on the perusal of the various
recommendations of the committees and factual matrix came to the conclusion that the
government has applied its mind and considered the relevant aspects of safety and finally
dismissed the petition.

In P.A.Jacob v. The Superintendent of Police, Kottayam104 the Kerala High Court

held that freedom of speech under Article 19 (1) (a) does not include freedom to use loud
speakers or sound amplifiers. Thus noise pollution caused by the loudspeakers can be
controlled under Article 19(1) (a) of the Constitution.

102
Indian Express Newspapers (Bombay) Pvt ltd. v. Union of India AIR 1986 SC 515.
103
(1990) SCR Supl. (2) 606.
104
AIR 1993 Ker 1.

53
 In Moulana Syed Md. Noorur Rehman Barkati v. State of West Bengal105 the
Calcutta High Court observed that excessive noise is certainly pollution in the society.
Under Article 19(1) (a) read with Article 21 of the Constitution of India, the citizens have
a right of decent environment and they have a right to live peacefully, right to sleep at
night and to have right to leisure which all are necessary ingredients of the right to life
guaranteed under Article 21 of the Constitution. There are various other sources where
the noise is created or generated but which offends citizen’s right guaranteed under
Articles 19(1) (a) and 21 of the Constitution.

2.10. Freedom of Trade and Commerce and Environment

Article 19(1) (g) guarantees all citizens the right “to practice any profession or to
carry on any occupation, trade or business”. This right of the citizens is not absolute. It is
subject to Article 19(6) under which “reasonable restrictions” 106 in the “interest of the
general public” can be imposed. Thus, environmental interest from the hazards of any
trade or business can be protected.

The Gujarat High Court in Abhilash Textiles v. Rajkot Municipal Corporation107

made clear that, ‘the petitioners cannot be allowed to reap profit at the cost of public
health’. In this case petitioners conducting the business of dyeing and printing works in
Rajkot area were discharging dirty water from the factory on the public road and in
public drains without purifying the same, thereby causing damage to the public health.
The petitioners claimed that they were carrying on the business for the last 20 to 25 years
and the industry was providing employment to twenty to thirty thousand families. Notice

105
AIR 1999 Cal 15 at 25-26; Burrabazar Fire Works Dealers’ Association v. Commissioner of Police,
Calcutta AIR 1998 Cal 121 at 136; Church of God (Full Gospel) in India v. K.K.R. Majestic Colony
Welfare Association (2000) 7 SCC 282; Sayeed Maqsood Ali v. State of M.P. AIR 2001 MP 220; Free
Legal Aid Cell v. Government of NCT of Delhi AIR 2001 Del 455 at 462.
106
Article 19 (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred by the said sub clause and,
in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to, (i) the professional or technical
qualifications necessary for practicing any profession or carrying on any occupation, trade or business,
or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,
business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
107
AIR 1988 Guj 57.

54
to close would be very harsh as they would be compelled to close down the factory and
would also be violative of Article 19(1) (g).

The Court held that one cannot carry on the business in the manner by which the
business activity becomes a health hazard to the entire society. By discharge of effluent
water on public road or in public drainage system the entire environment of the locality
gets polluted. No citizen can assert his right to carry on business without any regard to the
fundamental duty under Article 51-A (g) to protect and improve the natural environment.
The Court further directed that if the petitioners wish to carry on the business then they
must provide for purification plant before discharging the effluents on public roads or in
public drainage system. The petitioner had no right under Article 19(1) (g) to carry on
business without complying with the Municipal Law and other environmental statutes.

In M.C. Mehta v. Union of India108 where tanneries were discharging effluents

from their factories in the holy river Ganga resulting in water pollution and not setting up
a primary treatment plant in spite of being asked to do for several years. It was held that,
an order directing them to stop working their tanneries should be passed as effluent
discharge from tanneries is ten times noxious when compared with the domestic sewage
water which flow in to the river and the court passed the following order:

“We are, therefore, issuing the directions for the closure of those tanneries which
have failed to take minimum steps required for the primary treatment of industrial
effluent. We are conscious that closure of tanneries may bring unemployment,
loss of revenue, but life, health and ecology have greater importance to the
people”.

In M.C. Mehta v. Union of India109 the Supreme Court directed that certain
industries which were not showing any progress regarding the installation of the air
pollution controlling system in compliance with the Supreme Courts earlier order, should
be closed. In this case the Supreme Court did not refer Article 19 (1) (g) however it is implied
that while passing the order it had in its mind Article 19 (1) (g) read with Article 19 (6) and
21 of the Constitution.

108
AIR 1988 SC 1037.
109
(1994) SCC Suppl. (3) 717.

55
 In S. Jagannath v. Union of India110 the Supreme Court held that, the sea beaches
and sea coasts are gifts of nature and any activity polluting the same cannot be permitted.
The intensified shrimp (prawn) farming culture industry by modern method in coastal
area was causing degradation of mangrove eco system, depletion of plantation, discharge
of highly polluting effluents and pollution of portable as well as ground water. Therefore
it was held that the said activities of the industries are violative of Constitutional
provisions and various other environmental legislations. While delivering the Judgment,
Court had in mind that, before any shrimp industry is permitted to be installed in the
ecologically fragile coastal area it must pass through a strict environmental test in other
words “reasonable restriction” can be put to regulate the right under Article 19(1) (g) of
the Constitution. Accordingly, the Supreme Court suggested that there must be an
Environmental Impact Assessment (EIA) before permission is granted to install
commercial shrimp farms. It must take into consideration the inter-governmental equity
and compensation for those who are affected and prejudiced 111.

In Burrabazar Fire Works Dealers’ Association v. Commissioner of Police,

Calcutta112 the Court held that Article 19(1) (g) of the Constitution of India does not
guarantee the fundamental right to carry on trade or business which creates pollution or
which takes away that community’s safety, health and peace. The Court of the view that
there is no inherent or fundamental right in a citizen to manufacture, sell and deal with
fireworks which will create sound beyond permissible limits and which will generate
pollution which would endanger health and public order. A citizen or people cannot be
made a captive listener to hear the tremendous sound caused by bursting out from noisy
fireworks.

In Ashwin Jajal v. Municipal Corporation of Greater Mumbai 113 public interest

litigation was filed by a resident against the municipal corporation seeking direction to
prohibit the display of illuminated advertisements by use of neon lights in residential

110
(1997) 2 SCC 87.
111
M.C. Mehta v. Union of India (1997) 2 SCC 353 (popularly known as Taj Mahal Case); Animal and
Environment Legal Defence Fund v. Union of India (1997) 3 SCC 549; T N Godavarman
Thirumulkpad v. Union of India (1997) 2 SCC 267 and (1997) 3 SCC 312.
112
AIR 1998 Cal 121 at 134.
113
AIR 1999 Bom 35.

56
areas and also to revoke the permission granted to the respondents for display of
advertisements on the buildings. It was argued that the neon light sign boards created
environmental and health hazards and were of nuisance value as the bright light is
deterrent to peaceful sleep. On the other hand, the respondents said that they have
fundamental right under Article 19 (1) (g) to have free trade. The court held that keeping
in view the environmental and health hazard and nuisance value it is always open to the
authorities to regulate the advertisement in a reasonable manner to the extent permissible
and this does not result in the violation of fundamental right of free trade.

In Baleshwar Singh v. State of U.P.114 the U.P. State rule prohibited the operation
of a saw mill within 80 kilometres of any reserved or protected forests. This was
challenged by the owners of the saw mill on the ground that it violates the fundamental
freedom under Article 19 (1) (g) of the Constitution. The Allahabad High Court
dismissed the petition and held that this is a reasonable restriction imposed to stop
uncontrolled cutting of green trees resulting in disturbing ecological balance.
The existence of saw mill in, near or around any forest is prohibited for the maintenance
of the forest wealth and ecological balance and for the social and national interest.

In Obayya Pujari v. Member Sectretary, K S P C B, Bangalore115 the Court held

that a licence in favour of stone crushing units does not confer on them absolute rights to
carry on commercial activities of trade or occupation without limitation. The rights are
subject to reasonable restrictions and can be regulated by Court direction as are necessary
for controlling pollution from such units.

In A.P. Gunnies Merchants Association, Hyderabad v. Government of A.P.116 the

High Court held that, the right to carry on business in old and used gunny bags is not
absolute. The trade carried on involving activity of dusting and cleaning of gunny bags
creates air and environmental pollution. Hence, the direction given by the State
Government to shift the business from the thickly populated area to environmental safer
place is valid and not violative of Article 19(1) (g) of the Constitution.

114
AIR 1999 All 84.
115
AIR 1999 Kar157 at 164.
116
AIR 2001 AP 453.

57
2.11 Conclusion

In this chapter the constitutional provisions and the related cases have been
presented. It demonstrates the active role of the Supreme Court and the High Courts. In
fact, during the last decade, the court has exhibited its legal scholarship in the
development of environmental jurisprudence. The Ratlam Municipality Case117, Delhi
Gas Leakage Case118, the Ganga Pollution Cases119, Dehradun Quarrying Case120,
Calcutta Taj Hotel Case121 are some of the examples where the Court, not only by
liberalizing the traditional rule of locus-standi but has evolved the concept of public
interest litigation

The role of higher judiciary as is witnessed from majority of the cases decided by
it has been worth appreciating. The Court has successfully done its job, fulfilled its
obligation and performed its duty. It is our submission, that judiciary is not the only
effective form to resolve environmental problem which can be effectively solved only
through public awareness and political will rather than judicial will. Thus, judiciary can
and does play a role of catalyst and thereby speed up and gear up the process, but it has to
be initiated by and from the public.

Further, the environmental issues are complex and need to dwell on points of
scientific and technical relevance. The Courts in such situations find it difficult to form
its own independent opinion and take recourse to the help of expert committees which is
a long and time consuming exercise. In order to overcome such difficulties it is submitted
that the suggestion made by the Supreme Court in the Delhi Gas Leakage Case for the
setting up of environmental courts for speedy disposal of environmental cases, if
implemented will a right step in the right direction.

Accordingly, there is an urgent need that citizens as well as the State must sit up
and take notice of environmental degradation and take appropriate steps to improve it.

117
Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622.
118
M.C. Mehta v. Union of India, AIR 1987 SC 965.
119
M.C. Mehta v. Union of India, AIR 1988 SC 1037.
120
Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., AIR 1985 SC 652.
121
Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.

58
 CHAPTER-III

COMMON LAW AND OTHER LEGISLATIVE MEASURES

3.1. Introduction

This chapter is divided into two parts. First part presents the ‘Common Law on
Environmental Protection’ and the second part deals with the ‘Legislative Measures to
Protect Environment’.

3.2 Common Law for Environmental Protection

Actions brought under law of torts are the oldest legal remedies to abate pollution.
The contribution of the case law to environment protection and the influence of that law,
particularly with regard to statutory nuisance, negligence, strict liability is of immense
importance. In India, a common law tort action against the polluter is still one of the
remedies available. Common law is one of the oldest sources of our environmental law
and it is originally introduced into India by the British, continues to apply here by virtue
of Article 372 (1) of the Constitution. The basis of its application is “Justice, Equity and
Good Conscience”1.

In Vellore Citizens Welfare Forum v. Union of India2 the Supreme Court traced
the source of the Constitutional and Statutory provisions that protect the environment to
the ‘inalienable common law right’ of every person to a clean environment. Quoting from
Blackstone’s commentaries on the English Law of Nuisance published in 1876, the Court
held that since the Indian legal system was found on English common law, the right to a
pollution free environment was a part of the basic jurisprudence of the land 3.

In M.C.Mehta v. Kamalnath4 the Supreme Court observed: Pollution is a civil

wrong. By its nature, it is a tort committed against the community as a whole. A person,
therefore, who is guilty of causing pollution, has to pay damages (compensation) for
restoration of the environment and ecology. He has also to pay damages to those who
1
Superintendent and Remembrances of Legal Affairs v. Corporation of Calcutta, AIR 1967 SC 997 and
Bar Council of Delhi v. Bar Council of India, AIR 1975 Del 202.
2
AIR 1996 SC 2715.
3
Jay Laxmi Salt Works (p) ltd., v. State of Gujarat (1994) 4 SCC 1.
4
(2000) 6 SCC 213.

59
have suffered loss on account of the act of the offender. In addition to damages, the
person guilty of causing pollution can also be held liable to pay exemplary damages, so
that it may act as a deterrent for others not to cause pollution in any manner.

The common law aspects of environmental law in India are nuisance, trespass,
negligence, strict liability and absolute liability. Pollution cases relating to riparian rights
also fall under this branch of law.

3.2.1. Nuisance

Modern environmental law has its roots in the common law principles of
nuisance. The substantive law for the protection of the citizen’s environment is basically
that of common law relating to nuisance5. Nuisance means anything which annoys, hurts
or offends6. Nuisance as a tort means ‘an unlawful interference with a person’s use or
enjoyment of land or some right over, or in connection with it 7.

Pollock says, “Nuisance is the wrong done to a man by unlawfully disturbing him
in the enjoyment of his property or in some cases, in the exercise of a common right 8.
In the words of Stephen, “nuisance is anything done to hurt or annoyance of lands,
tenements of another and not amounting to trespass.

Hence acts interfering with the comfort, health or safety are covered under
nuisance. The interference may be due to smells, noise, fumes, gas, water, heat,
vibrations, smoke, germs, etc. Nuisance can be divided into public and private nuisance,
the first of which is a crime, though it can be a tort in certain circumstances and the
second of which is always tortuous.

Public Nuisance

A public nuisance can be defined as an unreasonable interference with a right

common to general public. In other words, an act or omission which materially affects the

5
Kailash Thakur, Environmental Protection Law and Policy in India 185 (Deep & Deep Publications
Pvt. Ltd: New Delhi, 1st Edn., 1997, Reprint 2007).
6
Durga Prashad v. State, AIR 1962 Raj 92.
7
Winfield and Jolowicz, Tort, 380 (Sweet & Maxwell, 12th Edn, 1984).
8
S.R. Myneni, Environmental Law, 214 (S.P.Gogia H.U.F c/o Asia Law House: Hyderabad, 1st Edn., 2008).

60
reasonable comfort, convenience, health, safety or quality of life of a class9 of persons is
a public nuisance. The kinds of activities that amount to environmentally damaging
public nuisance include carrying of trades causing offensive smells, intolerable noises,
dust, vibrations,10 rubbish dumps, cesspit or other collection of filth that affects the health
or habitability of a locality.

The remedies for a public nuisance are (1) a criminal prosecution for the offence
of causing a public nuisance,11 (2) a criminal proceeding before a magistrate for
removing a public nuisance,12 and (3) a civil action by Advocate General or by two or
more members of the public with the permission of the court, for a declaration, an
injunction or both13.

Private Nuisance

A private nuisance is the using or authorizing the use of one’s property or of

anything done under one’s control, so as to injuriously affect an owner or occupier of
property by physically injuring his property or by interfering materially with his health,
comfort or convenience14. Private nuisance is an unlawful interference with a person’s
use or enjoyment of land or some right over, or in connection with it 15. The basis of an
action under nuisance is unreasonable and unnecessary inconvenience caused by the use
of defendant’s land. Reasonableness of the defendants conduct is usually the pivotal
question in nuisance cases16.

In the determination of ‘reasonableness’ Courts are generally guided by the

ordinary standard of comfort prevailing in the neighbourhood. Minor discomforts that are
common in crowded cities are not viewed as nuisance by the Courts. To be nuisance, an

9
R. Rattan Lal and K. T. Dhirajlal, The Law of Torts 463 (Wadhwa and Company: New Delhi,
21st Edn., 1987).
10
Kailash Thakur, Environmental Protection Law and Policy in India 185 (Deep & Deep Publications
Pvt. Ltd: New Delhi, 1st Edn., 1997, Reprint 2007).
11
Indian Penal Code 1860, Section 268.
12
Criminal Procedure Code 1973, Sections 133 to 144.
13
Civil Procedure Code 1908, Section 91.
14
R. Rattan Lal and K. T. Dhirajlal, The Law of Torts 465 (Wadhwa and Company: New Delhi, 21st Edn., 1987).
15
Winfield and Jolowicz, Tort, 380 (Sweet & Maxwell, 12th Edn., 1984).
16
Bhanwarlal v. Dhanraj, AIR 1973, Raj 213.

61
act must satisfy certain conditions17. First, it must not arise on premises in the plaintiff’s
occupation. It must arise outside the plaintiff land and then proceed to affect that land or
its use. Second, it must generally be a continuing wrong. Most nuisances arise because of
a regular, long standing unreasonable use of land. A single instance of deleterious
affectation may, be evidence of a continuing unreasonable use of land, or so serious and
grave an occurrence in itself as amount to an act of nuisance. Third, the damage suffered
must be real or sensible in that it can be measured in some way.

The operation of nuisance in relation to pollution is quite wide. It covers a wide

range of inferences with the use and enjoyment of one’s land or property coming from
pollution of water, air, noise, smells, etc. As regards water pollution, injunctive and
damages reliefs have been granted to prevent the pollution or compensate the plaintiff for
the injury suffered by him on account of pollution of surface, underground and tidal
waters caused by the defendant.

In Pride of Derby and Derbyshire Angling Association v. British Celanese Ltd.,18

injunction was granted restraining the defendants, the local authority from polluting the
river on account of discharge of treated effluents of sewers controlled by them under
legislation and consequently the plaintiff’s right of fishery in the river was unreasonably
interfered with. This was held to be a nuisance and relief granted.

In Haigh v. Deudraeth Rural District council19 the plaintiff owned certain fields
which were in part intersected and in part bounded by a stream into which crude sewage
matter had been discharged in considerable amount by the sewers owned by the local
authority. It was held to be a nuisance and injunction was issued to restrain the latter from
discharging sewage matter into river.

Atmospheric pollution may amount to an actionable nuisance. If smoke, vapour,

gases, fumes, dust, etc., are communicated to the air which surrounds and enters plaintiffs
premises so as to cause inconvenience to the occupier thereof and renders the premises
17
R. Rattan Lal and K. T. Dhirajlal, The Law of Torts, 468-472 (Wadhwa and Company: New Delhi,
21st Edn., 1987).
18
Kailash Thakur, Environmental Protection Law and Policy in India, 186-187 (Deep & Deep
Publications Pvt. Ltd: New Delhi, 1st Edn., 1997, Reprint 2007).
19
Kailash Thakur, Environmental Protection Law and Policy in India 187 (Deep & Deep Publications
Pvt. Ltd: New Delhi, 1st Edn., 1997, Reprint 2007).

62
less comfortable, the act will be nuisance. Therefore, creation of stenches, causing smoke
or noxious fumes to pass over the plaintiff’s property, 20 rising of clouds of coal dust and
emission of smuts, have all been held actionable nuisance under common law. Under
common law, a land owner is entitled to have air untainted and unpolluted by the acts of
his neighbours. By this is meant, at least, “air not incompatible with physically
comfortable human existence, though air may not be as pure and fresh as when the
plaintiff’s house was built”21.

In India, erection of chimney with holes emitting smoke and fumes that materially
interfere with ordinary comfort of the plaintiff;22 generating dust from brick-grinding
machine which polluted the atmosphere and entered the consulting chamber of the
plaintiff and caused inconvenience to him and his patients23 are actionable as nuisance.

Noise can be either a public or private nuisance, no proprietor has an absolute

right to create noise upon his own land, because any right which the law gives is qualified
by the condition that it must not be exercised to the nuisance of his neighbours or of the
public24. As to what amount of noise or annoyance from noise will be sufficient to sustain
an action of nuisance, there is no definite legal rule or measure. However, the assessment
of whether noise constitutes an actionable nuisance will depend on considering factors
such as: the nature of locality; the time when noise created, the duration of the noise,
mode of committing it; the nature and the desirability of the defendants action; the nature
of the harm suffered by the plaintiff and the defendant’s state of mind, though not all of
these factors will be equally relevant.

Noise becomes actionable nuisance only if it materially interferes with the

ordinary comfort of life, judged by ordinary, plain and simple notions 25 and having
regard to above factors. The standard of judging actionable noise is according to that of
man of ordinary habits and not of men of fastidious tastes or of over-sensitive nature26.

20
Shott Iron Co. v. Inglish (1882) 7 Appeal case 518.
21
Ram Baj Singh v. Babulal AIR 1982 All 285.
22
Gopal v. State of MP (1986) CrLJ 396.
23
Ram Baj Singh v. Babulal, AIR 1982 All 285.
24
Ismail sahib v. Venkata Narasimhulu 1937 ILR Mad 51.
25
Radhey Shiam v. Gurprashad, AIR, 1978 All 86.
26
Jankhi Prasad v. Karamat Kussain 1931 ILR, All 36.

63
The following have been held to be noise nuisances: producing noise by tom-tom, cymbal
during the performance of ceremony,27 or from machine long after the hour when people
would ordinarily go to sleep, running a flour mill in a noisy locality which caused
additional noise and vibrations and materially interfered with the physical comfort of the
plaintiffs28.

In Bijayananada patra v. District Magistrate, Cuttack29 the Orissa High Court

held that where noise can be said to amount to nuisance, the person causing noise can be
restrained by injunction, even though that person was causing noise in the course of
conducting his business. The Court also held that, people under the grab of religious
practices cannot make use of loud speakers at a high pitch so as to cause nuisance to
other persons30.

In Church of God (Full Gospel) in India v. K.K.R. majestic Colony Welfare

Association31 the Supreme Court observed: “undisputedly, no religion prescribes that
neither prayers should be performed by disturbing the peace of others nor does it preach
that, they should be through voice amplifiers or beating of drums. In our view, in a
civilized society, in the name of religion, activities which disturb old or infirm persons,
students or children having their sleep in the early hours or during day time or other
persons carrying on other activities cannot be permitted. It should not be forgotten that
young babies in the neighbourhood are also entitled to enjoy their natural right of
sleeping in a peaceful atmosphere. A student preparing for his examination is entitled to
concentrate on his studies without there being any unnecessary disturbance by the
neighbours. Similarly, the old and the infirm are entitled to enjoy reasonable quietness
during their leisure hours without there being any nuisance of noise pollution. Aged, sick,
people afflicted with psychic disturbances as well as children up to six years of age are
considered to be very sensible to noise. Their rights are required to be honoured.

27
Ismail sahib v. Venkata Narasimhulu 1937 ILR Mad 51.
28
Radhey Shiam v. Gurprashad, AIR 1978 All 86. However, in Ram Rattan v. Munna Lal, AIR 1959
Punj 217, the noise caused by additional power loom in a noisy locality was not considered to be such
a serious addition to the noise which already existed in the locality as to warrant actionable nuisance.
Injunction was therefore, refused in this case.
29
AIR 2000 Ori 70 at 76.
30
State of Bombay v. Narasu Aba Mali, AIR 1952 Bom 82.
31
(2000) 7 SCC 282.

64
3.2.2. Trespass

By the law of England, every invasion of private property, be it ever so minute, is

a trespass. No man can set his foot upon any ground without license, but is liable to an
action, though the damage be nothing. Trespass is doing of unlawful act or of lawful act
in unlawful manner to the injury of another’s person or property or any violation or
transgression of the law; passing beyond some limit, an encroachment, intrusion on or
upon32.

It is an intentional or negligent direct interference with personal or proprietary

rights without lawful excuse. The tort of trespass is actionable per se and there is no need
to show damages as a result of trespass. There are two elements for constituting the tort of
trespass. First being, intentional or negligent interference with the personal or proprietary
right and second being such interference must direct rather than consequential33.

Trespass requires an intentional invasion of the plaintiff’s interest in the exclusive

possession of property. Invasion may be direct or through some tangible objects.
Thus, deliberate placement of waste in such circumstances as will carry it to the land of
plaintiff by natural forces,34 emission of gas35 or invisible fumes constitute tort of
trespass. The distinction between private nuisance and trespass lies in the nature of the
injury. If the injury is direct, it is trespass and if it is consequential it is nuisance.

Actions under trespass in environmental cases have been rarely invoked.

For instance, in Martin v. Reynolds Metal Co.36 the court modified the traditional
definition of trespass to bring industrial pollution within the ambit of liability. It defined
trespass as “the invasion of land owners’ right to exclusive possession, whether by visible
or by invisible substance” and held that mere setting of fluoride deposits upon the
plaintiff’s land was sufficient to constitute actionable trespass 37.

32
S.R. Myneni, Environmental Law, 207 (S.P.Gogia H.U.F c/o Asia Law House: Hyderabad, 1st Edn., 2008).
33
P. S. Jaswal and Nistha Jaswal, Environmental Law 22 (Allahabad Law Agency: Haryana, 2nd Edn., 2003).
34
South Part Corporation v. Esso Petroleum (1954) 2 QB 182 at 240.
35
McDonald v. Associate Fuels (1954) 3 DLR 775.
36
(1959) 221 Ore 86.
37
James. E Krier, Environmental Law and Policy, 189-191(Bobbs-Merrill: Indianapolis, 1971).

65
3.2.3. Negligence

Negligence is a wrong in tort and also in penal law. Negligence in common law is
a breach of duty and if there is a duty, there has been a breach of it which causes loss, it
does not matter whether it is a venial breach or a serious breach. Judge Cooley defines
negligence as “the failure to observe, for the protection of the interest of another man, the
degree of care, precaution and vigilance, which the circumstances justly demand, whereby
such other person suffers injury”. Negligence is the “omitting to do something that a
reasonable man would do or doing something which a reasonable man would not do”38.

Negligence as a tort is the breach of a legal duty to take care which results in
damage, undesired by the defendant, to the plaintiff39. It has three important elements;40
(1) A legal duty to exercise due care on the part of the party complained of towards the
party complaining the former’s conduct within the scope of the duty; (2) Breach of the
said duty, i.e., there is failure to act reasonably in a situation where reasonable care is
required. What is a reasonable care in any given situation is dependent on the
surrounding circumstances, facts of the case and varies according to the magnitude or risk
involved, the utility of defendant’s actions, the burden of taking adequate precautions to
eliminate the risk and magnitude of prospective injury, 41 and (3) consequential damage
which must have been factually caused by breach of duty and must be the reasonably
foreseeable consequence of the breach.

In Naresh Dutt Tyagi v. State of U.P.42 chemical pesticides were stored in godown in
residential area. Fumes emanating from the pesticides lead to the contiguous property
through ventilators which resulted in death of three children and an infant in the womb of the
mother. It was held as negligence. In Mukhesh Textiles Mills Pvt. Ltd., v. H.R.Subramaniya
Sastry43 the appellant had a sugar factory and used to store molasses, a by-product in the
manufacturing of sugar, in tanks which were closed to the respondent’s land and

38
S.R. Myneni, Environmental Law, 210 (S.P.Gogia H.U.F c/o Asia Law House: Hyderabad, 1st Edn., 2008).
39
Winfield and Jolowicz, Tort, 69 (Sweet & Maxwell, 12th Edn., 1984).
40
R. Rattan Lal and K. T. Dhirajlal, The Law of Torts, 1361 (Wadhwa and Company: New Delhi,
21st Edn., 1987).
41
Salmond and Heuston, Law of Torts, 209-220 (Sweet & Maxwel: London, 18th Edn., 1981).
42
(1995) 3 SCC Suppl. 144.
43
AIR 1987 Kant 87.

66
separated by a water channel. One day, one of the tanks collapsed. It entered into the
water channel and ultimately spoiled the paddy fields of the respondent causing damage
to the raised crop. The Court held the appellant liable on two grounds. Firstly, the
appellant who had stored large quantities of molasses in tanks had the duty to take
reasonable care in the matter of maintenance. If the duty to take care was not properly
performed, then it amounted to negligence on the part of the appellant. The Court further
pointed out that, the appellant could reasonably foresee the damage, which was likely to
be caused if there was a breach in the tank. Secondly, the liability arises whenever the
land is put to the non-natural use. The Court held that the appellant was liable for the
consequence of the escape of the fluid from its tank.

2.4. Strict Liability

Imposing liability upon the defendant even though there is no fault upon him is
called ‘the Doctrine of Strict Liability’. The strict liability theory has its origin in the case
of Rylands v. Fletcher44. The doctrine of strict liability explains that the defendant should
not escape from his liability, even though there is no fault of him. In this case, the
defendant, who had a mill near Ainsworth in Lancashire wanted to improve its water
supply. They constructed a reservoir by employing reputed engineers to do it. When the
reservoir was filled, water flowed down the plaintiff’s neighbouring coal mines causing
damage. The defendants were in no way negligent having employed competent engineers
to construct the reservoir. However, House of Lords upheld the judgment of Blackburn J
of the court of Exchequer Chamber, holding the defendant liable by laying down a new basis
of liability called ‘the strict liability’. Blackburn J observed that, “the rule of law is that the
person who, for his own purpose, brings on his land and collects and keep there anything
likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is
prima facie answerable for all the damage which is the natural consequence of its escape”.

The rule has following components which must be fulfilled so as to attract its
application: (1) A person must bring and collect material on his land; (2) The
accumulation should be for his own purposes. This component has been frequently
ignored. It is generally considered that an occupier who allows another to accumulate

44
(1868) LR 3 HL 330.

67
matter on his land can be liable under the rule45 (3) the matter must be something likely
to do mischief if it escapes. The matter may not necessarily be dangerous. (4) there must
be an ‘escape’ from the place of accumulation to some other place outside the defendants
control,46 and (5) the defendant’s use of land must be non-natural47. Upon the presence of
the above components, the defendant is prima facie strictly liable for damage caused.
Damage may be to land, to the occupier’s chattels on land or personal injury 48.

If the defendants make a “non-natural use” of land in his occupation in the course
of which there is escape of something which causes damage to person or property outside
the defendant’s premises, the defendant is liable irrespective of any question of
negligence on the basis of rule of strict liability.

Exception to the Rule of Strict Liability

The judgment of Blackburn J approved by the House of Lords in Rylands v.

Fletcher49 itself recognized that the liability is not absolute being subject to certain
exceptions that of, plaintiff’s own default, an Act of God, the plaintiff’s consent, the
natural use of land by the defendant, the act of third party provided the act was of a kind
which the defendant could not reasonably have contemplated and guarded against and the
statutory authority.

The rule of strict liability has been applied to a variety of circumstances wherein
damage has resulted either due to fire,50 gas,51 explosion,52 electricity,53 oil, noxious
fumes54 and vibrations55 covering the water and air pollution, waste deposits aspects of

45
Smeaton v. Ilford Corp. (1954) I All ER 923.
46
Read v. Lyons & Co.Ltd. (1964) II All ER 471.
47
Rikards v. Lothian, 1913 AC 263. The qualification of non-natural use was emphasized by Lord
Moulton who in this case said “it is not every use to which land is put that brings into play this
principle. It must be special use bringing with it increased danger to others and must not merely be the
ordinary use of land or such a use as is proper for the general benefit of the community”.
48
Perry v. Kendricks Transport Ltd., (1956) 1 WLR 85.
49
(1868) LR 3 HL 330.
50
Rainhan chemical Works Ltd., v. Belvedere Fish Guano Co., (1921) 2 AC 465.
51
North Western Utilities Ltd., v. London Guarantee & Accident Co., (1936) AC 106.
52
T.C Balakrishnan v. T.R.Subramanian AIR 1968 Ker 151.
53
Eastern and South African Telegraph Co., Ltd., v. Cape Town Tramways Companies Ltd., (1902) AC 381.
54
West v. Bristol Tramways Co., (1908) 2 KB 14.
55
Hoare & Co., v. McAlpine (1923) 1 Ch. 167.

68
environmental hazards. In India, the rule of strict liability has been applied in limited
situations relating to escape of water causing mischief to land and chattels 56 or fire57.

3.2.5. Theory of Absolute Liability

Absolute liability for the harm caused by industry engaged in hazardous and
inherently dangerous activities is a newly formulated doctrine free from the exceptions to
the strict liability rule in England. The Indian rule of absolute liability was evolved in
M.C Mehta and another v. Shri Ram Foods and Fertilizers Industries and Others, which
was popularly known as Oleum Gas Leakage case58. The case relates to the harm caused
by the escape of Oleum Gas from one of the units of Shri Ram Foods and Fertilizers
Industries. The Supreme Court held that, the rule laid down in Rylands v. Fletcher was
more than a century old and it could not address the current problems fully. This is
because, now the society has become a modern industrialized society with highly
developed scientific knowledge and technology where hazardous or inherently dangerous
activities are necessarily to be carried out as part of the development activities.

The Supreme Court laid down the Rule of Absolute Liability in the following
words “where an enterprise is engaged in a hazardous or inherently dangerous activity
and harm results on account of accident in the operation of such activity resulting in for
example, any escape of toxic gas, the enterprise strictly and absolutely liable to
compensate all those who are affected by accident and such liability is not subject to any
of the exceptions which operate vis-à-vis the tortious principle of strict liability under the
rulings made in Rylands v. Fletcher”59.

The Supreme Court has categorically pointed out that, the duty is “absolute and
non-delegable” and the enterprise cannot escape liability by showing that it had taken all
reasonable care and there was no negligent on its part. The basis of the new rule as
pointed out by the Supreme Court is two:

56
Ramaniya Chariar v. Krishnaswami Muddi, (1907) ILR 31 Mad 169.
57
M.Madappa v. K.Kariapa, AIR 1964 Mys 80.
58
AIR 1987 SC 965.
59
(1868) LR 3 HL 330.

69
 (1) If an enterprise is permitted to carry on an hazardous or inherently dangerous
activity for its profit, the law must presume that such permission is
conditional on the enterprise absorbing the cost of any accident arising on
account of such hazardous or inherently dangerous activity.

(2) The enterprise alone has the resource to discover and guard against
hazards or danger and to provide warning against potential hazards.

This view of Supreme Court was reiterated in Indian Council for Enviro-legal
action v. Union of India60. In this case Supreme Court imposed absolute liability on
enterprises carrying on hazardous and inherently dangerous activity.

3.2.6. Vicarious Liability

Section 17 of the Environment (Protection) Act, 1986 deals with the offences
committed by the government departments. If any environmental offences are committed
by the government departments, the head of such department would be liable for the
offence and he shall be deemed guilty of that offence. However, he may plead that the
offence was committed without his knowledge or he exercises due diligence to prevent
the commission of offence and that offence is not attributable to any neglect on his part.
If the offence regarding the violation is non-compliance of environmental norms
committed by a servant or agent or partner, the master or principal or firm would be held
liable and it shall be deemed that the offence is committed by their mentor. In the view of
the environmental law if the offence is committed by the government’s servant the
employer i.e., the state would be held liable for the same 61.

3.2.7. Liability for Dangerous Operations

It is a liability similar to that of strict liability. Talbot, J. in Brook v. Bool62

propounded this “liability for dangerous operations”. According to Talbot, J. “the
principle is that if a man does work on or near another’s property which involves danger
to that property unless proper care is taken, he is liable to the owners of the property for
damage resulted to it from the failure to take proper care”. In this case, an escape of gas
60
(1996) 3 SCC 212 at p.241-256.
61
S.C. Tripathi, Environmental Law, 231 (Central Law Publications: Allahabad, 3rd Edn., 2008).
62
(1928) 2 KB 578.

70
was detected in a locked up shop. The landlord and his friend went inside to examine.
While doing so, the friend lighted a match stick, which caused an explosion damaging the
tenant’s goods. The landlord was held liable for the loss of good, because he was engaged
in a highly dangerous operation in going there with a naked light.

The same principle was followed in Honey Will and Stein Ltd., v. Lakin Bros.,
Ltd.,63. In this case the plaintiffs had engaged the defendants to take flash lights
photographs of a picture in a cinema theatre. On account of the negligence of the servants
of the defendants, the theatre was lost in fire. The court held that, “a person engaged in
extra hazardous operations must take reasonable precaution to see that the work does not
cause damage to the premises”.

3.2.8. Riparian Rights

Riparian owners (i.e., who have title to lands adjacent to a natural stream) have on
equality of rights with non-riparian’s in regard to pollution of artificial streams. Under
section 7 of the Indian Easement Act, 1882 riparian owners in India have special
protection against the pollution of natural streams. A natural stream is a stream arising at
its source from natural cause flowing in a natural channel64. It is not necessary that a
natural stream must flow continuously throughout the year and must at every single point
of its course flow through a clearly defined channel65. Every riparian owner is entitled to
continued flow of waters of a natural stream in its natural condition without any
obstruction or unreasonable pollution that is undiminished in quality and quantity.

An upper riparian owner cannot use the waters of a stream so as to injure the
rights of a lower riparian in those waters. Every riparian owner has a right of reasonable
use of water for purposes of his riparian property and therefore, the right of a lower
riparian owner is subject to this right of reasonable user by the upper riparian. For the
existence of this right of a riparian it is not necessary that he should be the owner of the

63
(1934) 1 KB 191.
64
Gopalan Krishna Y. Varu v. Secretary of State, (1914) 16 MLT 597.
65
Ramsewak v. Ramgir, 1953 ILR 32 Pat 937.

71
land forming the bed of the stream. Similarly, ‘riparian rights belonging to lower riparian
owners avail even as against him on whose land the stream has its origin’ 66.

3.2.9 Remedies

A person injured by a pollutional activity will wish to obtain recompense for his
loss and a cessation of the activity. A plaintiff in a tort action may sue for damages or an
injunction or both.

Damages

Damages are the remedy for the loss suffered. Damages may be either “substantial”
(ordinary) or “exemplary” (vindictive). Substantial damages are those which are intended, to
compensate the plaintiff for the damage he has suffered on account of defendant’s
wrongful act. The law does not aim at restitution but compensation and the true test is
what sum would afford under the circumstances of the particular case, a fair and
reasonable compensation to the party wronged for the injury done to him 67.

Exemplary damages are usually awarded in excess of the material loss suffered by
the plaintiff with a view to prevent similar behaviour in future on the part of defendant.
Such damages are awarded with objective not to compensate the plaintiff but to punish or
deter the wrongdoer for his outrageous nature or conduct which may be reflected in his
persistent recurrence of wrongful activity68. House of Lords in Rooks v. Banard69
classified three categories wherein exemplary damages can be allowed. The first category
is oppressive arbitrary or unconstitutional action of the Government or its servants. Cases
in the second category are those in which the defendant’s contact has been calculated by
him to make a profit for himself which may well exceed the compensation payable to the
plaintiff. Third category consists of cases in which exemplary damages are expressly
authorized by statute. The Supreme Court of India in Sriram Gas Leak case70 has added
another categories viz., when harm results from the hazardous or inherently dangerous

66
Salmond, The Law of TORTS, 230 (Sweet & Maxwel: London, 13th Edn., 1961).
67
R. Rattan Lal and K. T. Dhirajlal, The Law of Torts 155 (Wadhwa and Company: New Delhi, 21st Edn.,
1987).
68
J.C.Galstaim v. Dunia Lal, (1905) 9 CWN 617.
69
(1964) AC 1129 HL.
70
M.C. Mehta v. Union of India AIR 1987 SC 1086.

72
nature of the activity in which the defendant is engaged. In such cases, compensation
“must be correlated to the magnitude and capacity of the enterprise because such
compensation must have a deterrent effect. The larger and more prosperous the enterprise
the greater must be the amount of compensation payable by it”.

Prospective damages can also be awarded in respect of future loss resulting from
the same cause of action in the same suit. The determination of prospective damages in
environmental cases is hard to quantify in some cases and may remain un-awarded on
account of difficulty involved in their being proved.

Injunction

An injunction is an order of a court restraining the commission, repetition or

continuation of a wrongful act of the defendant. This remedy is awarded at the discretion
of the court. Injunctions are of two kinds, temporary and perpetual. A temporary
injunction is regulated by sections 94 and 95 and order 39 of the Code of Civil Procedure,
1908. A temporary injunction is generally granted before the case has been heard on
merits and is provisional. The purpose of this type of injunction is to maintain the state of
things at a given time until there is trial on the merits. It may be granted at any stage of a
suit on an interlocutory application71.

Apart from the provision of Order 39, Courts have also inherent power to issue
temporary injunction in circumstance not covered under the said order if the Court is
satisfied that the interests of justice so require72. A temporary injunction is only granted
where the Court is satisfied and the plaintiff establishes that there is a prima facie case.

Perpetual injunctions are governed by section 37 to 42 of the Specific Relief Act

of 1963. The purpose of perpetual injunction is to permanently restrain the defendant
from doing the act complained of; protect the plaintiff indefinitely and disband successive
actions in respect of every infringement. A perpetual injunction will be generally granted
where a strong probability of grave damage to plaintiff accrues and where damages
would not be an adequate remedy.

71
Kailash Thakur, Environmental Protection Law and Policy in India 198 (Deep & Deep Publications
Pvt. Ltd: New Delhi, 1st Edn., 1997, Reprint 2007).
72
Manohar lal Chopra v. Raj Baja Seth Hiralal, AIR 1926 SC 527 at p-532.

73
 Thus, it is manifestly evident that common law remedies constitute an important
part of the Indian legal system aimed at the prevention, control of environmental
pollution and seeking relief for the consequent damage.

3.3. Legislative Measures for Environmental Protection

In India, more than 300 legislations deal with environment protection, as a

statutory control of environmental pollution. But the concerted legislative activity in the
backdrop of the drawbacks of dissipated and piecemeal earlier legislations and
inadequacy of such legislations to meet the evolving challenges of pollution, in fact,
started after 1970 with the enactment of some specific legislations dealing exclusively
with pollution problems.

3.3.1. Water Pollution

Actions under Earlier Statutes

There are some earlier statutes which contain, provisions with regard to the
control of pollution of fresh water and marine waters prescribing different penalties for
the acts of pollution. Shore Nuisance (Bombay and Colaba) Act, 1853 is the earliest
statute on control of water pollution in India. Section 1 of the Act gave wide powers to
the collector of land revenue, Bombay, to issue notice to an offending party requiring the
removal of any nuisance anywhere below the “high water mark”. The high tide mark is
that part of the sea-shore to which waters ordinarily reach when the tide is highest.
The Act empowered the collector to get the nuisance removed or abated if it was not
removed or abated within one month of the issuance of notice.

Another statute which control pollution of fresh waters from industrial effluents
of Oriental Gas Company is Oriental Gas Company Act, 1857. Section 15 of the Act
provides penal consequences if the company caused water to be corrupted. It read as:
“If the company shall at any time cause or suffer to be brought or to flow into any stream,
reservoir aqueduct, pond or place of water or into any drain communicating therewith,
any washing or other substance produced in making or supplying gas, or shall wilfully do
any act connected with the making or supplying of gas, whereby the water in any such
stream, reservoir, aqueduct, pond or place for water, shall be fouled, the said company

74
shall forfeit for every such offence a sum not exceeding one thousand rupees and they
shall forfeit an additional sum not exceeding five hundred rupees for each day during
which such washing or other substance shall be brought or shall flow or the act by which
such water shall be fouled shall continue, after the expiration of twenty-four hours from the
time when notice of the offence shall have been served on the said company, by the person
into whose water such working or other substances shall be brought or shall flow or whose
water shall be fouled and such penalties shall be paid to such last mentioned person”.

Section 17 of the Oriental Gas Company Act, 1857 provided for a penalty of two
hundred rupees if the water be fouled by gas, to the person whose water was so fouled on
a further sum not exceeding one hundred rupees, for each day during which the offence
continue after the expiry of twenty-four hours from the service of notice of such sum.

A systematic approach to control of water pollution in India started with the

enactment of Indian Penal Code in 1860. Problem of water pollution has been dealt with
in the chapter on Public Health and Safety. Sections 277, 269 and 290 of the code refer to
water pollution. Section 277 defines fouling of water and prescribes the punishment for
it. It reads: “whoever voluntarily corrupts or fouls the water of any public spring or
reservoir so as to render it less fit for the purpose for which it is ordinarily used, shall be
punished with imprisonment of either description for a term which may extend to three
months or with fine which may extend to five hundred rupees or with both”.
The provision of section 277 however is very limited in scope. It covers voluntary fouling
of water and does not cover an act committed involuntarily whatever the consequences of
such an act might be. The section has been narrowly interpreted to include flowing water
of rivers, canals and streams,73 and well in the terms ‘public spring or reservoir.’
The words ‘corrupt and foul as used in the section simply takes care of purity of water
but the pollution in modern technological sense would go beyond these words’.

Section 269 reads “whoever unlawfully or negligently does any act which is and
which he knows or has reason to believe to be, likely to spread the infection of any
disease dangerous to life, shall be punishable with imprisonment of either description for
a term which may extend to six months or with fine or with both.” Section 284 of the

73
Susai v. Director of Fisheries, 1965 MLJ 35.

75
code is also drafted to include any handling of poisonous substances as to endanger
human life or likely to cause hurt or injury to any person by poisoning of wells and rivers
as well.

Section 290 deals with the pollution of waters other than springs and reservoirs.
It says “whoever commits a public nuisance in any case not otherwise punishable by the
code shall be punishable with fine which may extend to two hundred rupees.” A water
polluter could also be prosecuted and punished under section 425 of the code for mischief
if his act causes wrongful loss or damage to public or to any person or if his act causes
destruction of any property or diminishes its value or utility.

Section 7 of The Sarais Act of 1867 is another general law dealing with water
pollution. The Act enjoined upon a keeper of a Serai or an inn to keep certain quality of
water fit for consumption by persons and animals using it to the satisfaction of the
District Magistrate or his nominees. A penalty of rupees twenty was imposed for failure
to maintain the standard of water.

The Indian Fisheries Act, 1897 prohibited the poisoning of waters and the
consequent destruction of fish. Section 5 of the Act provided that if any person puts any
poison, lime or noxious material into any water with intention thereby to catch or destroy
any fish he shall be punishable with imprisonment which may extend to two months or
with fine which may extend to two hundred rupees.

Section 26(1) of the Indian Forest Act, 1927 makes it punishable if any person,
who, in contravention of the rules made by the State Government under Section 32(f)
relating to poisoning of water in forests, poisons water of a forest area.

The Northern India Canal and Drainage Act, 1873 lists certain offences in section
70 Sub-section (3) and provides that any interference with or alteration in the flow of
water in any river or stream so as to endanger, damage or render less useful any canal or
drainage work would be an offence. Sub-sec. (5) provides that whoever corrupts or fouls
the water of any canal so as to render it less fit for the purposes for which it is ordinarily
used would be imposed a penalty of imprisonment not exceeding one month or a fine not
exceeding fifty rupees or both for the breach of the provision.

76
 The Damodar Valley Corporation Act, 1948 authorizes the Corporation to frame
regulations for prevention of water pollution with the previous sanction of the Central
Government. In pursuance of the powers so conferred the Corporation has framed the
Damodar Valley Corporation (Prevention of Pollution of Water) Regulations, 1957 for
prevention of water pollution. The regulations provide for the control of pollution of any
water under the control of the Corporation by persons, local authorities and vessels.
The regulations provide for the imposition of a fine up to one thousand rupees and up to
rupees one hundred per day for continuing offence, after conviction for the first breach.

The River Boards Act, 1956 provides for the creation of River Boards under
Section 13 of the Act, for regulation and development of interstate rivers and river
valleys. One of the functions of the Board is to advise the government concerned in
regard to pollution of waters of interstate rivers. The statute is of very limited
significance as the function of the Board on water pollution is simply advisory.

Under Factories Act, 1948 section 12 of the Act ordains that effective
arrangement shall be made in every factory for the disposal of works and effluents carried
on therein. It further empowers the State government to make rules prescribing the
arrangements to be made or requiring that the arrangement made shall be approved by
such authorities as may be prescribed74. Section 92 of the Act provides for general
penalty for non-observance or non-compliance with the requirements of section 12 and
the other rules made under the Act. The punishment is imprisonment for a term which
may extend to two years or fine which may extend to one lakh rupees or both.

Various State governments have made rules for the regulation, disposal and
discharge of industrial wastes and effluents under the above section 75. There exist various
municipal enactments which authorize the municipalities and the municipal corporations
to regulate the discharge of water, any substance prejudicially affecting the purity and
quality of water. The penalty for polluting the water is also provided for in the
enactments.

74
Section 12 (2) of the Factories Act 1948.
75
Maharastra Factory Rules 1963, Uttar Pradesh Factories Rules, 1950, Mysore Factories Rules, 1969,
Tamilnadu Factories Rules, 1950 and West Bengal Factories Rules, 1958.

77
 Water Pollution by oil has been regulated by the Indian Ports Act, 1908. Section 6
of the Act empowered the government to make necessary rules for the purpose of
regulating the manner in which oil or water mixed with oil shall be discharged in any port
and the disposal of the same76. The same Act prohibits throwing of ballast or rubbish or
any other thing likely to form a bank or shoal detrimental to navigation into either the
port or upon any place likely to be washed into the port by tides, storm or land flood. Any
violation of the above provisions entailed a fine extending to rupees five hundred and
reasonable expenses which may be incurred in removing the same 77.

The Merchant Shipping Act, 1958 was passed by the parliament in order to give
effect to the International Convention for Prevention of Pollution of the Sea by oil, 1954,
regulate and control the discharge of oil by sea going ships. Part XI-A of the Act which
was inserted by the Merchant Shipping (Amendment) Act, 1970 and later on substituted
by the Merchant Shipping (Amendment) Act, 1983 deals with the marine pollution by oil.

The era of special laws on water pollution began with the passing of Orissa River
Pollution Prevention Act, 1953. It covered the river pollution only. The Maharashtra
Prevention of Water Pollution Act, 1969 which covered a wider area of application
extending not only to rivers but water courses (whether flowing or for the time being
dry), inland water (whether natural or artificial), subterranean streams or sea to such
extent and tidal waters to such point as the State government may specify in this behalf.
The Act for the first time defined pollution in elaborated terms. The water board
constituted under the Act was given power to control existing and new outlets and
discharges. The Act provided separate treatment of different offences which included
non-compliance with the direction of the board obstruction in the implementation of the
Act or violation of any prohibition under the Act. The maximum penalty was three
months imprisonment or/and fine of one hundred rupees.

Actions under Recent Legislations

Under the Indian legal system a comprehensive scheme of administrative

regulation of water pollution is now provided for under the Water (Prevention and

76
Indian Ports Act, 1908. Section 6 (e).
77
Indian Ports Act, 1908. Section 6 (2).

78
Control of Pollution) Act, 1974 the Water Cess (Prevention and Control of Pollution)
Act, 1977 and the relevant provisions of Environment (Protection) Act, 1986.

Water (Prevention and Control of Pollution) Act 1974

The objective of the Act is to ‘prevent and control water pollution’ and also
maintains and restores the wholesomeness of water. Section 2 (e) of the Act defines the
term ‘pollution’ as: “such contamination of water or alteration of the physical, chemical
or biological properties of water, or such discharge of any sewage or trade effluents or
any other liquid, gaseous or solid substance into water, (whether directly or indirectly) as
may, or is likely to, create nuisance or render such water harmful or injurious to life or
safety, or to domestic, commercial, industrial, agricultural or legitimate uses or to the life
and health of animals or plants or of aquatic organisms”.

It applies to streams, water sources (whether flowing or dry for the time being),
inland water, subterranean waters, seas or tidal waters. The Act provides for establishing
a Central; or State Boards and Joint Boards for the accomplishment of the objectives of
legislation.

The Central Board, functions ranging from giving advice to the Central
Government on matters of water pollution, coordinate the activities of state pollution
control boards, sponsor investigations and research relating to water pollution, develop a
comprehensive plan for control and prevention of water pollution, inspecting sewage and
trade effluent treatment and lay down the standards in consultation with State
Government for a stream or well etc78.

The State Boards have the function of laying down standards of pollution and to
make consent orders for industries etc., for putting trade or sewage effluent into a
stream79. The State Boards are to act as per the instructions of the Central Board and the
concerned State Government. Where there is a clash between the directions of the Central
Board and the State Government, the matter is referred to the decision of the Central
Government. The Central Board acts as per the direction of the Central Government. The
Boards have been authorized to establish or recognize laboratories to enable them to
78
Section 16 of the Water (Prevention and Control of Pollution) Act, 1974.
79
Section 17 of the Water (Prevention and Control of Pollution) Act, 1974.

79
perform its functions efficiently including the analysis of samples of water from any
stream, well, sewage or trade effluents.

The Act does not provide standards for the regulation of pollution but gives wide
powers to water board to decide their own standards80 and regulations to the local needs.
For the purpose of control and prevention of water pollution, the Act provides for a
permit system or consent procedure. The Act generally prohibits disposal of noxious,
poisonous or polluting matter into streams or wells or sewer or onto the land in excess of
the standards established by the State Boards81. The Boards accord consent to the
intending industries for the discharge of sewage or trade effluents into a stream or well.
A person must obtain permission from the state board before taking steps to establish any
industry, operation or process, any treatment and disposal system or any extension or
addition to such a system which might result in the discharge of sewage or trade effluent
into a stream or well.

The consent is to be obtained on making an application to the Board. The consent

may be given after making an inquiry in the prescribed manner. The consent may be
made conditional. The condition may pertain to the location, construction and the use of
the outlet as well as the nature and composition of new discharges. The consent will be
valid only for such period as may be specified in the order. For the reasons to be
recorded, the consent may be refused. The state board must maintain and make a public
register containing the particulars of the consent orders. Such a register, so much as it
relates to any outlet or to any effluent from such land or premises shall be open to
inspection at all reasonable hours by any person interested in or affected by, the outlet or
in the land or premises as the case may be. The condition contained in such register shall
be conclusive proof that the consent was granted subject to such conditions.

For persons who have been releasing water pollutants prior to the adoption of this
Act, the Act requires them to meet the consent requirements of section 25. Penalties are
imposed for contravention of the provisions of sections 24, 25 and 26. Persons
80
Section 17(g) of the Environment (Protection) Act, 1986, gives similar authority to the Central
Government to establish water quality and effluent standards throughout India. In pursuance of the
powers Central Government has made Environmental Rules 1986. Different standards have now been
provided for the discharge of effluents in Schedule I and II of the Rules.
81
Section 24 of the Water (Prevention and Control of Pollution) Act, 1974.

80
contravening the provisions of Sec. 24 shall be punishable with imprisonment for a term
which shall not be less than one year and six months but which may extend to six years
and with fine. The contravention of the provisions contained in Section 25 and Sec. 26 is
punishable with imprisonment for a term not less than one year and six months which
may extend to six years and with fine82.

The powers of the Board includes, the power of entry and inspection, take
emergency measures if the cause of the pollution of streams or well is an accident or
other unforeseen act or event which includes removing the pollutants, mitigating the
damage or issuing order to the polluter prohibiting effluent discharges, to execute any
work required under the consent order, not being executed upon thirty days notice to
polluter and recover expenses for such work from the polluter; power to obtain
information regarding the construction, installation or operation of an establishment or of
any disposal system; power to give directions and obtain information as to the quantity of
abstraction of water from stream or wells or discharge of sewage or trade effluent there
into and power to take samples of effluents for analysis83.

The Amendment Act of 1988 introduced section 33-A, now empowers the State
Board to issue directions to any officer, person, or authority, including order to close,
prohibit or regulate any industry, operation, etc., and stop or regulate the supply of water,
electricity or any other service. The power under section 33-A would certainly lead to
decrease of actions against polluters. It also empowers the board to apply to Courts for
injunction to restrain apprehended pollution of water in streams or wells, etc.

Section 49 of the Water (Amendment) Act1988, introduced provision for citizen’s

suit. The citizen’s suit provision allows citizens to bring action upon a complaint after
60 days notice to the appropriate State Board or official. A State Board must make
relevant reports available to complaining citizen, unless the Board determines that
disclosure would harm ‘public interest’.

82
Section 44 of the Water (Prevention and Control of Pollution) Act, 1974, “Whoever contravenes the
provision of section 25 or section 26 shall be punishable with imprisonment for a term which shall not
be less than 4[two years] but which may extend to six years and with fine”.
83
Section 21 of the Water (Prevention and Control of Pollution) Act, 1974.

81
 The Act also provides for stringent penalties among others for failure to comply
with a court order under section 33 or a direction from the board under section 33-A the
penalties range from a minimum imprisonment of three months to a maximum of seven
years in some cases and a fine from rupees one thousand to ten thousand. The Act also
extends the liability for violations committed by companies to certain corporate
employees and officials84 and to heads of government departments85.

The Water Cess (Prevention and Control of Pollution) Act 1977

The Water Cess Act does not provide the mechanism for the control and
prevention of water pollution but has been adopted as a part of economic incentive for
controlling pollution. The Water Cess Act empowers the Central Government to levy a
cess on water consumed by persons carrying on certain industries and by local
authorities. The adoption of the Act was necessitated due to inability of the State
Governments to provide for adequate funds to the state boards for their effective
functioning and to cope up with the increasing pressure on the water resources.

Under the scheme of the Water Cess Act, Central Government is authorized to
impose a cess on water consumed by the industries listed in Schedule I of the Act.
The Schedule II lists the purposes for which the water subjected to a cess may be used by
industries or the local authorities, which includes: (1) industrial cooling, spraying in mine
pits or boiler feed; (2) domestic purposes; (3) processing which results in water
pollution by biodegradable water pollutants, or (4) processing which results in water
pollution by water pollutants which are not easily biodegradable or are toxic. The rate of
cess payable is nominal and not exceeding the rate specified to the corresponding entry in
column (2) of the Schedule II.

Section 7 of the Act gives incentive to the extent of 70 per cent of cess payable
for installation of a treatment plant from such date as may be prescribed. The cess money
is first to be credited to the Consolidated Fund of India and then be disbursed by the
Central Government to the State Boards. The Act prescribes a penalty of imprisonment
extending to six months or/and fine extending to rupees one thousand or both for

84
Section 41 of the Water (Prevention and Control of Pollution) Act, 1974.
85
Section 47 & 48 of the Water (Prevention and Control of Pollution) Act, 1974.

82
submitting false assessment return.86 Interest at a rate of 12 per cent is payable for delay
in payment of cess by any industry or local authority using the water. The recovery of
amount due under the Act may be recovered as an arrear of land revenue 87.

The Environment (Protection) Act 1986

The objective of the Act is to provide for the protection and improvement of
environment and for matters concerned therewith. The Environment (Protection) Act
extends to water quality and the control of water Pollution.

Section 2(a) of the Act defines the ‘environment to include inter alia, water and its
relationship with air, land, human beings, other living creatures, plants, micro-organisms
and property’. Section 2(c) of the Act defines ‘environmental pollution to mean the
presence in the environment of any solid, liquid or gaseous substance in such
concentration as may be or tend to be, injurious to environment’. Section 24(2) of the Act
still allows the operation of Water Act, 197488.

The Act leaves to the Central Government to establish standards for the quality of
the environment and for emission or discharge of environmental pollutants from any
source89. In pursuance of the powers so conferred, the Ministry of Environment and
Forest has published Environment (Protection) Rules establishing general standards and
industry-based standards for certain types of effluent discharges90. The Act also

86
Section 14 of the Water Cess Act, 1977, “(1) Whoever, being under an obligation to furnish a return
under this Act, furnishes any return knowing, or having reason to believe, the same to be false shall be
punishable with imprisonment which may extend to six months or with fine which may extend to one
thousand rupees or with both. (2) Whoever, being liable to pay cess under this Act wilfully or
intentionally evades or attempts to evade the payment of such cess shall be punishable with
imprisonment which may extend to six months or with fine which may extend to one thousand rupees
or with both. (3) No court shall take cognizance of an offence punishable under this section save on a
complaint made by or under the authority of the Central Government”.
87
Section 12 of the Water Cess Act, 1977, “Any amount due under this Act (including any interest or
penalty payable under section 10 or section 11, as the case may be) from any person carrying on any
specified industry or from any local authority may be recovered by the Central Government in the
same manner as an arrear of land revenue.”.
88
Section 24(2) of ‘The Environment (Protection) Act’ 1986, provides that “where any act or omission
constitutes an offence punishable under this Act and also under any other Act, then the offender found
guilty of such offence, shall be liable to be punished under the other Act and not under this Act.”
89
Section 3(2) (iv) of The Environment (Protection) Act, 1986.
90
The Environment (Protection) Rules, 1986 Schedule I and II.

83
empowers the Central Government to constitute authority or authorities and appoint
officers for implementation of its provisions91.

3.3.2 Air Pollution

Control of Air Pollution under Earlier Statutes

The air pollution was not covered comprehensively under the earlier statutes in
India. However, some statutes contained ad hoc provisions dealing with control or
regulation of pollutants such as smoke, gas, vapours, dust, fumes, etc., and provided
different mechanism for the control of such emissions. A few of the central enactments
dealing with air pollution control are: The Oriental Gas Company Act, 1857 contained
provisions for, the regulation of emissions of the Oriental Gas Company, that may be
discharged by the company during its course of operation and may eventually result in
pollution of waters or the air.

Section 16 of the Act read as follows: “Whenever, any gas shall escape from any
pipe laid down or set up or belonging to the said company they shall, immediately after
receiving notice thereof in writing prevent such gas from escaping and in case they said
company does not, within twenty-four hours next after service of such notice, effectively
prevent the gas from escaping and wholly remove the cause of complaint, they shall for
every such offence forfeit the sum of fifty rupees for each day during which the gas shall
be suffered to escape, after the expiration of twenty-four hours from the service of such
notice”.

The Indian Penal Code, 1860 was the first step in the control over the pollution
problem. Section 278 of the Code reads: “Whoever voluntarily vitiates the atmosphere in
any place so as to make it noxious to health of persons in general dwelling or carrying on
business in the neighbourhood or passing along a public highway shall be punished with
fine which may extend to five hundred rupees”.

Indian Explosive Act, 188492 regulates the manufacture, possession, use, sale,
transport, import and export of explosive substances 93. The Act prohibits manufacturing,

91
Section 5, 10 &11 of The Environment (Protection) Act, 1986.
92
The Act has been amended by Amendment Act 32 of 1978.

84
possession, use, sale, transportation etc., of explosive substances except as under rules as
to licensing, sale, transportation, import and export, etc 94. Under section 7 of the Act any
officer may be authorized by the Central Government by rules to exercise power relating
to inspection, search, seizure, detention and removal of explosives from any place,
aircraft carriage or vessel in which explosive is manufactured, possessed or used or sold
or transported. Failure to comply with the provisions of the Act entails imprisonment
which may extend up to three years and a fine which may extend up to five thousand
rupees or both.

The Indian Boiler’s Act 1923 deals with the matters connected with boiler
regulations in India. The Act incorporates the standards of construction, maximum
pressure, registration and inspection of all boilers. The Act established Central Boiler
Board95. The Central Boiler’s Board is the principal agency, empowered to make
regulations and standard conditions with respect to material, design and construction
required for the purpose of enabling the registration and certification of a boiler;
prescribing the method of determining the maximum pressure at which a boiler may be
used, prescribe method relating to registration, inspection and examination of boilers or
steam pipes; to ensure the safety of person working inside a boiler and to provide for any
other matter which is not in its opinion, matter of merely local or State importance.

To ensure proper maintenance and safe working of boilers, the Act provides for
enforcement machinery. The State Government appoints Chief Inspector, Deputy Chief
Inspectors and Inspectors, who discharge their functions according to the provisions of
the Act. The use of uncertified boilers is prohibited. The inspectors from time to time
examine the boilers to determine maximum pressure, steam emissions, offer advice to the
owners as to the proper functioning and maintenance of boilers and remit the result of
examinations to Chief Inspector. Use of a boiler by the owner at a high pressure than that

93
Section 4 of the Indian Explosive Act, 1884 (Amendment Act of 1978).
94
Section 5 of the Indian Explosive Act, 1884, Central Government is empowered to make rules in
connection with manufacturing etc., of explosive substances. In pursuance of powers conferred,
explosive rules, 1914 were framed which were later replaced by Explosive Rules, 1940.
95
Section 27(A) of the Indian Boiler’s Act, 1923.

85
allowed has been made punishable with fine which may extend to five hundred rupees
and with additional fine in case of a continuing offence 96.

The Indian Petroleum Act, 1934 contains special provisions for the carriage and
storage of petroleum. The Central Government is authorized to make rules with respect to
regulation of import, transportation storage, of petroleum and conditions for the
requirement of license.97 Section 23 of the Act imposes penalties for the contravention of
rules made under sections 4 and 5 which shall be punishable with simple imprisonment that
may extend to one month or with fine which may extend to one thousand rupees on with
both, for subsequent offence the punishment is simple imprisonment which may extend to
three months or with fine which may extend to five thousand rupees or with both.

Section 70 of the Motor Vehicles Act, 1939 empowered the State Government to
make rules regarding the emission of smoke, visible vapour, sparks, ashes, grit or oil.
This Act has now been repealed by the Motor Vehicles Act, 1988. Section 110 of the new
Act empowers the Central Government to make rules regulating: “Emission of smoke, visible
vapour, sparks, ashes, grit or oil, provision for transportation of goods of dangerous or
hazardous nature to human life; standards for emission of air pollutants. Provided, that the
rules relating to the matters dealing with the protection of environment shall be made after
consultation with the Ministry of the Government dealing with environment”.

In 1989, the Central Motor Vehicles Rules introduced nation-wide emission levels
for both petrol and diesel engine vehicles incorporated in Rules 115 and 116. These rules
were further amended in 1992. The Amended Rules 115 and 116 lay down standards
regarding emission levels of carbon monoxide, nitrogen oxides and unburned
hydrocarbons for petrol and diesel vehicles. Rule 115(1) requires that every vehicle be
manufactured and maintained so that smoke, visible vapours, grit, sparks ashes, cinders,
etc., are not emitted when the vehicle is driven. Rules 115(2) lays down standards

96
Section 23 of the Indian Boiler’s Act, 1923, “Any owner of a boiler who, in any case in which a
certificate or provisional order is required for the uses of the boiler under this Act, uses the boiler
either without any such certificate or order being in force or at a higher pressure than that allowed
thereby, shall be punishable with fine which may extend to five hundred rupees and in the case of a
continuing offence, with an additional fine which may extend to one hundred rupees for each day after
the first day in regard to which he is convicted of having persisted in the offence”.
97
Section 4 of the Indian Petroleum Act, 1934.

86
regarding emission limits of carbon monoxide for petrol driven vehicles and smoke
density levels for vehicles with diesel engines. Further, vehicles manufactured after April 1,
1992 must meet the additional emission standards prescribed for petrol and diesel
vehicles under Rules 115(3) and 115(4) respectively. Rule 115(6) requires every
manufacturer to certify that the new vehicle conforms to the prescribed standards and that
the vehicles are designed and constructed to meet these emission limits.

The amended Motor Vehicles Rules, 1992, authorize the regional or state
transport authorities to allow private agencies such as petrol stations to test the emission
levels of vehicles and issue “pollution under control” certificates. Even after such
certification, the transport authorities are empowered to inspect vehicles. Under Rule 116,
the registration of a vehicle found to be exceeding the permissible emission levels can be
suspended. In addition to fining the driver 98 the registration will remain suspended until a
fresh “pollution under control” certificate is secured.

Under the Factories Act, 1948 the relevant provisions pertaining to air pollution
are contained in Chapter III of the Act which deals with health. Section 13 requires the
occupier of a factory to take effective and suitable provisions for securing and
maintaining in every work room with adequate ventilation by circulation of fresh air and
such a temperature as will secure to workers therein reasonable condition of comfort and
prevent injury to health. The State Government may prescribe a standard of adequate
ventilation or reasonable temperature for any factory or class or description of factories99.

Section 14 requires an occupier of a factory to take effective measures to prevent

the inhalation and accumulation of any dust or fumes which is likely to be injurious or
offensive to workers employed therein. In respect of all factories in which the humidity
of air is artificially increased, the State Government, may under Section 15 of the Act
make rules, prescribing standards of humidification; regulating the methods used for
artificially increasing the humidity of the air, direct prescribed tests for determining the
humidity of the air to be correctly carried out and recorded; and prescribing methods to
be adopted for securing adequate ventilation and cooling of the air in the work rooms.

98
Sections 190 (2) &190 (3) of the Motor Vehicles Rules, 1992.
99
Section 91-A (2) & (3) of the Factories Act, 1948.

87
 Under Section 37(4) any welding, brazing, soldering or cutting operation which
involves the application of heat, of any plant, tank or vessel, in a factory which contains
explosive or inflammable substance is restricted unless adequate measures have been
taken to remove such substance and any fumes arising there from or to render such
substance and fumes non-explosive or non-flammable.

In 1987, immediately after the Bhopal gas tragedy, Factories Act had been
amended which incorporated special provision on hazardous industrial activities in
Chapter IV-A. The 1987 Amendment empowers the States to appoint site appraisal
committees consisting of Chief Inspector and representatives each from Central Pollution
Control Board and State Board approved by Central and State Governments under
Sections 3 and 4 of the Water Act and Sections 3 and 5 of the Air Act respectively. The
site appraisal committees are to advise the State Governments on the initial location of
factories using hazardous processes. The Amendment Act also requires compulsory
disclosure of information by occupier, regarding dangers including health hazards and
measures to overcome such hazards to Chief Inspector, the local authorities and the
general public living in the vicinity. Every occupier must draw up an emergency disaster
control plan, which must be approved by the Chief Inspector. The contravention of the
provisions is liable to result in cancellation of license100.

The occupier is further required to maintain accurate and up to date health records
and must employ operations and maintenance personnel who are experienced in handling
hazardous substances. The permissible limits of exposure to toxic substances are
prescribed in the second schedule to the Act.101 Safety committees consisting of workers
and managers are required periodically to review the factory’s safety measures.
The Amendment Act has also elaborated the definition of ‘occupier’ by including, the
person who has ultimate control over the affairs of the factory and includes individual
partner of a firm, director of a company, general manager of a factory and the owner of
the dock in the case ship is being repaired, for certain matters under the Act102.

100
Section 41-A of The Factories (Amendment) Act 1987.
101
Section 41-E & F of The Factories (Amendmen) Act 1987.
102
Section 2 of The Factories (Amendment) Act 1987.

88
 Section 92 of the Act provides for an imprisonment for a term which may extend
to two years or with fine which may extend to one lakh rupees or with both, for any
contravention of the provisions of this Act or any rules made their under by the occupier
or the manager of the factory. If the contravention continues after conviction, a further
fine which may extend to one thousand rupees for each day during which the
contravention continues may be imposed.

Section 96-A provides penalty for the contravention of provisions dealing with
hazardous processes (i.e. section 41-B, 41-C and 41-H) which may extend to seven years
imprisonment and with fine which may extend to two lakh rupees and if contravention
continues with an additional fine which may extend to five thousand rupees for each day
during which contravention continues. If contravention continues beyond a period of one
year after the conviction, the offender shall be punished with imprisonment for a term
which may extend to ten years.

The Atomic Energy Act, 1962 and the Radiation Protection Rules, 1971 regulates
the prevention and control of radioactive air pollution. Under the Act, the Central
Government is required to prevent radiation hazards, guarantee public safety of workers,
handling of radioactive substances and ensure the safe disposal of radioactive wastes.

In addition to the Central Legislations, there are some State Legislations and
Municipal Statutes for prevention and suppression of nuisance at the local level:
The Bengal Smoke Nuisance Act,1905 (applicable to Bihar, Bengal and Orissa), The
Gujarat Smoke Nuisance Act, 1963 and The Bombay Smoke Nuisance Act, 1912 are the
important state enactments which deal with abatement of nuisances arising from smoke
of furnaces or fire places and provided for the machinery for the purpose of combating
air-pollution from those sources.

Section 481 of the Delhi Municipal Corporation Act, 1957, deals with regulation
of smoke in factories, workshops and trade premises. Section 206 of the Gujarat
Municipalities Act 1963, empowers municipalities to deal effectively with smoke
nuisance which results in air-pollution, arising from any furnace employed in any work or
building for the purpose of trade or manufacturing. Section 436 of the Calcutta Municipal
Corporation Act, 1951, is empowered to refuse the permission of establishment of factory

89
if the establishment of such factory would be objectionable by reason of the density of
the population in the neighbourhood or would cause nuisance to the inhabitants.

Control of Air Pollution under Recent Legislations

A comprehensive scheme of administrative regulation of air pollution has been

provided under the Air (Prevention and Control of Pollution) Act, 1981 and under the
relevant provisions of the Environment (Protection) Act, of 1986.

The Air (Prevention and Control of Pollution) Act, 1981

The Air (Prevention and Control of Pollution) Act, 1981 (herein after called Air
Act of 1981) deals exclusively with the preservation of air quality and the control of
pollution. As per Section 2 (a) of the Air Act, air pollution means, “the presence in the
atmosphere of any air pollutant” and air pollutant means “any solid, liquid or gaseous
substance including noise present in the atmosphere in such concentration as may be or
tend to be injurious to human beings or other living creatures or plants or property or
environment”.

The Act provides enforcement machinery in the form of Environment and State
Air Pollution Boards in their respective geographical jurisdiction. To enable an integrated
approach to environmental problems, Air Pollution Boards are not required to be
constituted separately but the Air Act simply expanded the authority of the Central and
State Boards established under the Water Act.

The State Boards consists of Chairman, being a person having special knowledge
or practical experience in respect of matters relating to environmental protection, to be
nominated by the State Government and 15 other members with a proviso “that no less
than two of the members are persons having special knowledge or practical experience in
respect of matters relating to the improvement of the quality of air or the prevention,
control or abatement of air pollution” 103.

The functions of the Air Pollution Boards includes, to improve the quality of air
and to prevent and control or abate air pollution in the country; to advice respective
governments on above matter; plan comprehensive programme for prevention and control

103
Section 5 (2) of the Air Act, 1981.

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of air pollution and secure its execution, collect and disseminate information relating to
air pollution;104 to plan and organize the training of persons engaged or to be engaged in
programmes for prevention, control or abatement of air pollution and to organize mass
education programmes relating thereto and to lay down the standards for the quality of
air, standards for emission of air pollutants into the atmosphere from industrial plants
and automobiles or for discharge of any air pollutants into the atmosphere from any other
source. The State Boards are also required to inspect any control equipment, industrial
plant or manufacturing process or in the control areas and can issue appropriate directions
as to prevention, control or abatement of air pollution105.

As regards the prevention and control of air pollution, the Air Act after its
amendment in 1987 gives wide powers to State Governments and the Pollution Boards.
The State Government after consultation with the State Pollution Board is empowered to
designate particular areas as “air pollution control areas”. The State Government in such
air pollution control areas, in consultation with the State Board can by making a
notification in the official gazette, prohibit the use of any fuel or appliance other than the
approved ones or the burning of any material (other than fuel) such as garbage and other
waste products which may cause or is likely to cause air pollution.

For the control of industrial pollution, the Act prohibits the operation or
establishment of any industrial plant in an air pollution control area by any person
without the previous consent of the state Board. Therefore, industrial operators are
required to obtain a permit (consent order) from the State Board for the operation of an
existing industry or for an industry yet to be established.

The Act provides restriction on persons carrying on industry in any air pollution
control area not to allow emission of air pollutants in excess of the standards laid down
by the State Board. In case of actual or threatened violation of, the emission standards,
the Board can seek an order from court (not inferior to that of a Metropolitan Magistrate
or a Judicial Magistrate of the first class) for restraining such person from causing air

104
Section 16 (2) (1) and Section 17 (i) (d) of the Air Act,1981.
105
Section 17 (i) (e) & (f) of the Air Act,1981.

91
pollution.106 The Court may make such an order as it may deem fit. It may order such
person to desist from taking such action as it likely to cause emission or authorize Board
to implement the directions of the Court in such manner as it may specify. Alternatively,
under section 33(A) which has been instituted by Amendment of 1987, the Board may issue
directions as to the closure, prohibition of regulation of defaulting industry or process or the
stoppage or regulation of supply of electricity, water or any other service107.

The Environment (Protection) Act, 1986

The Environment Act provides additional mechanism for the prevention and
control of environmental pollution. As regards the control of air pollution, section 3(1) of
the Act empowers the Central Government to take all such measures as it deems
necessary or expedient for the purpose of protecting and improving the quality of the
environment and preventing, controlling and abating environmental pollution.
The Central Government is authorized under the Act, to set new national standards for
the quality of the environment as well as standards for controlling emission and effluent
discharges,108 to regulate industrial locations, to prescribe procedure for managing
hazardous substances,109 to establish safeguards for preventing accidents and to collect
and disseminate information regarding environmental pollution.

Under the Environment (Protection) Act, the Central Government is empowered

to establish standards for the quality of the environment in its various aspects, including
maximum allowable concentration of various environmental pollutants for different
areas. These standards could be based on ambient levels of pollutants sufficiently low to
protect the public health and welfare. Emission or discharge standards for particular
industries could be adjusted to ensure that such ambient levels are achieved. The
Environment (Protection) Rules of 1986 also allow the State or Central authorities to
establish more stringent emission or discharge standards, based on the quality of the
106
Section 22(A) of the Air Act,1981.
107
Section 33(A) of the Air Act, 1981, “A Board may, with the consent of, or in accordance with the terms of
any general or special authority given to it by, the Central Government or, as the case may be, the State
Government, borrow money from any source by way of loans or issue of bonds, debentures or such other
instruments, as it may deem fit, for discharging all or any of its functions under this Act”.
108
Section 3 (2) (iii) and (iv) of the Environment (Protection) Act, 1986 and Rule 53 of Environment
(Protection) Rules, 1986.
109
Section 6 (2) (c) & (d) of the Environment (Protection) Act, 1986.

92
recipient system, than the current uniform standards prescribed under these Rules.110
However, no uniform measures of adequate ambient quality have yet been established
under the Environment (Protection) Act, to guide authorities in setting more stringent
discharge standards. Only in December 1986, the Environment (Protection) Rules were
amended to prescribe ambient air quality standards in respect of noise 111. These standards
lay down the day time and night time limits of noise in industrial, commercial and
residential areas as well as in silence zones.112 In silence zones the use of vehicular horns,
loudspeakers and bursting of crackers is banned. Similarly, the emission standards for
many industries and for other sources-are yet to be promulgated under the rules.
The rules simply provide in some details for the standards of emission of smoke, vapour,
etc. from Motor vehicles113.

The Environment (Protection) Act contains provisions to ensure compliance

which includes power of entry for examination, testing of equipment and other purposes,
power to take samples of air, water, soil or any other substance from any place for
analysis, power to issue direct written orders, including orders to close, prohibit or
regulate any industry, operation or process or to stop or regulate the supply of electricity,
etc., power to launch prosecutions against the polluters and the citizens suit provision 114.

3.3.3. Noise Pollution

Noise in India is actionable under the law of torts. Under the Indian legal system,
there exists no law, exclusively dealing with the problem of noise or its control, whereas
many countries of the world have enacted specific laws 115 to control the noise pollution.
We have limited provisions for the control of noise pollution.

110
Rule 3 (2) of the Environment (Protection) Rule, 1986.
111
Schedule III of the Environment (Protection) Rules, 1986.
112
A silence zone is an area up to 100 meters around hospitals, educational institutions, courts, etc., which
is so declared by the competent authority.
113
Schedule IV of the Environment (Protection) Rule, 1986.
114
Section 19 of the Environment (Protection) Act, 1986, “No court shall take cognizance of any offence
under this Act except on a complaint made by--(a) the Central Government or any authority or officer
authorized in this behalf by that Government, or (b) any person who has given notice of not less than
sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to
the Central Government or the authority or officer authorized as aforesaid”.
115
Noise Abatement Act, 1960 of England and US Noise Control Act, 1972.

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Criminal Law

Under Section 268 of the Indian Penal Code, 1860, noise is actionable as public
nuisance. The section reads:

“A person is guilty of public nuisance who does any act or is guilty of an illegal
omission which causes any common injury, danger or annoyance to the public or to the
people in general who dwell or occupy property in the vicinity, or which must necessarily
cause injury, obstruction, danger or annoyance to persons who may have occasion to use
any public right”.

Under this section people who run offensive trade and thereby or by any offensive
means corrupt the air or by any mean cause loud and continued noise and thereby cause
injury or annoyance to those dwelling in the neighbourhood in respect of their health or
comfort and convenience or living are liable to prosecution for causing public
nuisance.116 Noise nuisance can also be punishable under section 290 of the code which
prescribes a punishment which may extend to two hundred rupees, for those cases of
nuisance not specifically covered under the code.

Under section 133 of the Criminal Procedure Code, 1973 the Magistrate has the
power to make conditional order requiring the person causing nuisance including that of
noise to remove such nuisance117.

Police Act, 1861

Under section 30 of The Police Act, 1861 the police officers are empowered to
regulate the extent to which music may be used in the streets on the occasion of festivals
and ceremonies. Under Section 30-A, the police officers and inspectors of police or any
police officer in-charge of a station are authorized to exercise the power of stopping,
dispersing or declaring the assemblies or processions as unlawful which violate the
conditions of license. Section 32 of the Act, provides for a penalty of a fine not exceeding
two hundred rupees, for violation of the conditions of any license for the use of music or

116
Rattanlal Dhiraj Lal, Law of Crimes, Chapter XIV (Wadhwa and Company: Nagpur, 2005).
117
Krishnan Gopal v. State of MP (1984) CrLJ 396.

94
for the conduct of assemblies and processions, issued by the District Superintendent or
Assistant District Superintendent of Police118.

Railways Act, 1890

The Railway Act, 1890 has been repealed by the Railways Act of 1989 but the
new Act also does not contain any specific provision dealing with the control of noise
pollution resulting from railway locomotives. It is understandable that noise from railway
locomotives cannot be subjected to strict statutory control, for railways constitute the
largest means of public transportation in India. But the noise from them can be
substantially reduced if steam engines are replaced by electrical or diesel engines and
welded tracks are used for running the trains. A great deal annoyance can be reduced if
shunting operations are done far away from residential areas.

Civil Aviation Law

Under the Indian Aircrafts Act, 1934 causing wilful damage or injury is
actionable. Although there is no specific provision relating to control of noise pollution
from aircrafts but under the rule making powers confirmed by section 8(A) of Aircraft
Act, 1934 and its supersession of the Indian Aircrafts (Public Health) Rules, 1946
government can make rules to control noise pollution for safeguarding health. Noise
restriction regulations and safety regulations are incorporated in the Aircrafts Rules.
To enforce rules Airfield Environment Committees headed by Secretaries, of the State
Governments with broad-based membership from Civil Aviation Department, Municipal
Corporations, Health Department, etc., are established at all airports. These committees
also consider ways and means to maintain environmental cleanliness, disposal of wastes
and removal of unauthorized slums or eating places etc., around the airport.

The Workman’s Compensation Act 1923

Under section 3 of the Act, there is a liability of employers to pay compensation

to their workers in case of injuries caused in the course of employment. If ears are
exposed to high intensity of sound for a long duration, then it may lead to auditory effects
including absolute deafness. Therefore, noise pollution can be controlled in the factories,

118
Under the Bombay Police Act, the police inspectors are authorized to allow the use of loud speakers.

95
under section 3, which provides for compensation regarding the injuries caused in the
course of employment119.

The Factories Act 1948

Section 11 of the Factories Act, 1948 provides protection from noise by making it
obligatory on the part of an occupier for keeping every factory, clean and free from any
drain or other nuisance. The use of word ‘nuisance’ in section 11 may include noise.
Section 35 of the Act, provides protection to eyes of employees but protection to ears is
no where given in the Act. The omission to specifically provide for protection of workers
against the noise pollution is uncalled for whereas under the schedule under sections
89 and 90 of the Act, noise induced hearing loss is mentioned as a notable disease.

The Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules 1989

The Motor Vehicles Act, 1939 has been repealed by the newly enacted Act of
1988. Section 110 of this Act empowers the Central Government to make rules regarding
equipment and inbuilt safety measures to be provided in motor vehicles at the
manufacturing point such as safety belt, standards of component, controlling air and noise
pollution etc., to bring uniform standards. The proviso provides that any rules relating to
the matters dealing with the protection of environment shall be made after consultation
with the Ministry of the Government dealing with environment.

In pursuance of the powers so conferred, Central Motor Vehicle Rules, 1989 have
been framed by the Central Government but the rule-making powers have not been fully
utilized for regulating effectively noise pollution.120 Section 190(2) of the new Act
provides that:

“Any person who drives or causes or allows to be driven, in any public place a
motor vehicle, which violates the standards prescribed in relation to road safety, control of
noise and air pollution, shall be punishable for the first offence with a fine of one thousand
rupees and for any second or subsequent offence with a fine of two thousand rupees”.

119
P. S. Jaswal and Nistha Jaswal, Environmental Law 380 (Allahabad Law Agency: Haryana, 3rd Edn., 2009).
120
Rule 119 and 120 of the Motor Vehicles Rules, 1989, provide for the regulation of fitting and use of
horns and silencers.

96
 As per Rule 121 clause 1, every motor vehicle is required to be fitted with device
known as a silencer, which helps in reducing the noise that would otherwise be made by
the escape of exhaust gases from the engine.

The Air (Prevention and Control of Pollution) Act 1981

Section 2 (b) of the Act defines, “air pollution to mean the presence in the
atmosphere any air pollutant.” In 1987 this act was amended, definition of air pollutant
was expanded to include noise. Section 2(a) defines:

“Air pollutant to mean any solid, liquid or gaseous substance including noise
present in the atmosphere in such concentration as may be or tend to be injurious to
human beings or other living creatures or plants or property or environment”.

The Central and the State Boards exercise the powers and functions under
sections 16 and 17 of the Air Act, respectively with regard to the prevention and control
of noise pollution including the laying down of noise standards.

The Environment (Protection) Act 1986 and the Environment (Protection) Rules 1986

The Act, defines various terms including ‘environment’, ‘environmental

pollutant’ and ‘environmental pollution’ in section 2. But it does not specifically refer to
noise. Section 6 of the Act, empowers the government to make rules to regulate
environmental pollution. Section 6 (2) (b) enables the central government to make rules
providing for “the maximum allowable limits of concentration of various environmental
pollutants (including noise) for different areas.” There is also general power of the central
government under section 3 of the Act, to take measures to protect and improve the
quality of environment and preventing, controlling and abating environmental pollution.
Accordingly, the central government has enacted the Environmental (Protection) Rules,
1986 which provide for the maximum allowable limits of various environmental
pollutants including noise. Entry 89 of Schedule I of the Rules provides the noise
standards for fire crackers. The Environment (Protection) Second Amendment Rules,
2002 Entry 94 in Schedule I of the Environment (Protection) Rules,1986 lays down the
noise limit for generator sets run with diesel.

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Noise Pollution (Regulation and Control) Rules 2000

The Central Government, in the exercise of powers under clause (ii) of sub-
section (2) of section 3, sub-section (1) and clause (b) of sub-section (2) of section 6 and
section 25 of the Environment (Protection) Act,1986 read with Rule 5 of the Environment
(Protection) Rules,1986 enacted the Noise Pollution (Regulation and Control) Rules,
2000. The object of this Rule is to regulate and control, the increasing ambient noise level
in public places from sources like, industrial activity, construction activity, generator sets,
loud speakers, public address system, music system, vehicular horns and other mechanical
devices which have deleterious effects on human health and the psychological well being of
the people.

3.3.4. Land Pollution

Some constituents of air pollution, water pollution and other human activities in
some form or the other affect the land and inconsequence the entire eco-system and
ecological balance in turn gets affected. The chief aspects of land pollution, subjected to
statutory control are solid and semi-solid waste disposal methods, the presence of
hazardous chemical in the environment and the despoliation and degradation of the land
surfaces by indiscriminate activities and use of land by human beings.

Forests

The Indian Forest Act, 1927 was enacted to consolidate the law relating to forest,
the transit of forest produce and the duty leviable on timber and other produce. Prior to
this Act, the law relating to the administration of forest was enacted in the form of Forest
Act, 1865 and later was codified in the Indian Forest Act, 1878. This Act consolidates the
provision of the Indian Forest Act of 1878 and all its amending acts. After the
independence, forests were placed on the state list of the Constitution and the forest
departments of individual states continue to regulate forests in accordance with the Indian
Forest Act of 1927.

The Indian Forest Act, 1927 gives the States jurisdiction over the administration
of forests and classifies forest into reserved forests, village forests, protected forest and
non-government (private) forests. A State Government by making a notification in the

98
official gazette is empowered to declare forests lands or waste lands as reserved forests
and may sell produce from these forests.121 Upon such a notification, previously
recognized individual and community rights over the forest are extinguished and access
to such forest and its produce becomes a matter of privilege, subject to permission of
forest officials acting under governing laws and regulations. The Act includes procedures
for making claims against the government for the loss of legal rights over the forests. 122
Any unauthorized felling of trees, setting fire to a reserved forest, trespasses of pastures
cattle, negligent damage to timber, quarrying, clearing of land for cultivation, hunting or
poisoning of waters in the reserved forest is punishable with imprisonment for a term
which may extend to six months or with fine which may extend to five hundred rupees or
with both in addition to such compensation for damage done to the forest as the
convicting court may direct to be paid123.

Reserved forests assigned to a village community are called village forests. State
Governments make rules for managing the village forest and prescribe the conditions
under which the village community is provided with timber, other forest products or
pastures. The rules may also assign duties to the village for the protection and
improvement of the forest.

Under Chapter IV, the State Governments are empowered to designate, by

notification in the official gazette, as a protected forest any forest or waste land in which
the Government has proprietary rights or rights to any part of the forest’s produce. Such
forests or forest land or waste land are called ‘protected forests’. The State Governments
are authorized to make rules to regulate rights and privileges in the form of licenses for
use of the protected forest.

Chapter V of the Indian Forest Act, 1927 deals with the control over forests and
lands not being the property of the government. The State Government may regulate or
prohibit the use of such land or forests for timber cutting, cultivation, grazing, firing or
clearing of vegetation, for protection against storms, winds, floods, preservation of soil,
prevention of landslip ravines, erosion, etc., or for protection of roads, bridges, railways,
121
Sec 3 and Sec 4 of the Indian Forest Act, 1927.
122
Sec 6,7,8and 10-18 of the Indian Forest Act, 1927.
123
Sec 26 of the Indian Forest Act, 1927.

99
communications or for maintenance of a water supply in springs, rivers etc., and for the
preservation of public health. The State Governments may construct any such work as it
thinks fit for any of the above purposes. 124 The Act also authorizes State Governments to
acquire private land for public purposes under the Land Acquisition Act, 1894.

The Forest Act, 1927 is administered by forest officers. They also perform the
administrative functions in relation to the management of forests. Chapter IX deals with
penalties and procedure of imprisonment and fine for confiscation of forest produce.

The Forest (Conservation) Act, 1980 as amended in 1988 has been passed with a
view to check deforestation which has been taking place in the country on a large scale
and which had caused ecological imbalance and thus led to environmental deterioration.
This Act, prohibits state governments from declaring any reserved forest or any portion
thereof, as non-reserved without the prior approval of the central government. It also
prohibits the State Governments from allotting any forest land, or any portion thereof, for
any non-forest purposes. The State Governments cannot, without the previous sanction of
the Central Government, assign by way of lease or otherwise any forest land or any
portion thereof to any private person or to any authority, corporation, agency or any other
organization not owned, managed or controlled by the government.125

Section 2 explains non-forest purpose as: “breaking up or clearing of any forest

land or portion thereof for (a) the cultivation of tea, coffee, spices, rubber, palms, oil
bearing plants, horticultural crops or medicinal plants; (b) any purpose other than
reforestation, but does not include any work relating or ancillary to conservation,
development and management of forest and wildlife, namely, the establishment of check-
posts, fire lines, wireless communications and construction of fencing, bridges and
culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like
purposes.” The Act also prescribes penalty for contravention or abetment of
contravention of the provisions of section 2.126

124
Sec 35 of the Indian Forest Act, 1927.
125
Sec 2 of the Forest (conservation) Act, 1980 as amended in 1988.
126
Section 3–A of The Forest (conservation) Act, 1980 as amended in 1988, “Whoever contravenes or abets
the contravention of any of the provisions of Section 2, shall be punishable with simple imprisonment
for a period which may extend to fifteen days”.

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Wildlife

Wildlife in India has received statutory protection through State legislations127 on

specific species preservation. The Indian Forest Act, 1927 contained provisions for
hunting restrictions in the reserved or protected forests and provided for establishment of
sanctuaries. The Elephant's Preservation Act of 1879 was the first central statute enacted
for the protection of wild elephants. The Central Government, in 1912 enacted a broader
Wild Birds and Animals Protection Act which specified closed hunting seasons and
regulated the hunting of designated species through licenses. The first comprehensive law
for the protection of wildlife and its habitat was perhaps the Hailey National Park Act of
1936 which established the Hailey (now Corbelt) National Park in the State of Uttar
Pradesh.

In 1972, Parliament enacted the Wildlife (Protection) Act pursuant to the enabling
resolution of 11 states under Article 252(1) of the Constitution. In 1976, the Forty-second
Amendment which moved wildlife along with forests from the State list of the
Constitution to the Concurrent list further broadened the powers of the Central
government and enabled the latter to develop national Wildlife policy in the form of
National Wildlife Action Plan, 1982 for the conservation of wildlife including the flora of
our country by way of providing for establishment of network of protected areas such as
national parks, sanctuaries and biospheres.

Land Use and Planning

Management of land use has, been a major cause of haphazard urbanization and
deforestation, dereliction and despoliation of landscapes and increase in waste lands. In
India, land use is a State subject under entry 18 of State list of the seventh schedule of the
Constitution; hence numerous state legislations dealing with urban and rural land use and
planning have been enacted.

127
Andhra Pradesh Wild Elephant Preservation Act,1873; Assam Elephant Preservation (Amendment)
Act,1959; Assam Rhinoceros Preservation Act, 1954; Punjab Wild Birds and Wild Animals Protection
Act, 1963; Madras Wild Elephant Preservation Act,1973; Bombay Wild Animals and Wild Birds Act,
1951; West Bengal Wild Life Protection Act, 1959.

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Urban Land Use

Land use in urban areas involve questions of planning, housing, development and
associated questions of acquisition of land, sanitation, public health, transportation and
the supply of other basic civic amenities. 128 On this aspect, a number of states have
enacted laws for zoning and town planning as a part of urban development programmes.
Improvement Trusts have been created by statutes for urban planning.

The earliest attempt at devising machinery to deal with the problems of urban
growth and town expansion were made by the Bombay Improvement Trust Act, 1898
which set up an Improvement Trust for the premier city. This was followed by Calcutta
Improvement Act, 1911 and latter by Omnibus Act for the then United Province of Agra
and Oudh. The Uttar Pradesh Town Improvement Act, 1919 was extended to Delhi and
was the basis for the improvement Trusts Act in Punjab. Bangalore had an Improvement
Trust under a special Act in 1945 and Trivandrum in 1960. The Howrah and the Madhya
Bharat Town Improvement Acts were passed in 1956 and the latter was replaced by the
Madhya Pradesh Town Improvement Trust Act, 1960.

The Improvement Trusts are being replaced by, the Development authorities, for
example in Delhi the Improvement Trust was replaced by the Delhi Development
Authority. The Development authorities are now vested with the responsibility of
enforcement of master plan and undertaking all development activity in accordance with
the plan. The Municipal Corporations acting under their respective statutes are responsible
for the sanitation and supply of some civic amenities and facilities. Apart from the above
administrative mechanism for urban planning there exist town planning Acts in many of the
former provinces even prior to the independence.

In the post-independence period there has been a concerted effort on the part of
governments to enact comprehensive planning legislation which would enable zoning to
be applied more systematically and effectively to achieve the objects of the comprehensive
plan and at the same time in conformity with the rights of property ownership conferred
by the Constitution. As a part of planning process a model town and country planning law

128
Kailash Thakur, Environmental Protection Law and Policy in India, 269 (Deep and Deep Publications:
New Delhi, 1st Edn., Reprint 2007).

102
was approved by the second conference of the State Ministers on Town and Country
Planning held in 1962 and it was commended for adoption by the State Governments.
This model Act did help to influence thinking in the States and a number of States have
legislated town and country planning Acts on these lines.

The Maharashtra Regional and Town Planning Act, 1966 the Mysore Town and
Country Planning Act, 1961, the Calcutta Metropolitan Planning Area (Use and
Development of Land) Control Act, 1965, the Andhra Pradesh Urban Areas
(Development) Act, 1975, the Bombay Metropolitan Region Development Authority Act,
1975, are some of the legislations.

Besides the zoning and planning laws the State legislatures have enacted
legislations for human settlement particularly dealing with the improvement of slum
areas with a view to provide for better urban development. The Andhra Pradesh (Andhra
Area) Slum Improvement (Acquisition of Land) Act, 1956, The Assam Slum Areas
(Improvement and Clearance) Act, 1959, The Madras Slums Improvement (Acquisition
of Land) Act, 1954, The Maharashtra Slum Areas (Improvement Clearance and
Redevelopment) Act, 1971, The West Bengal Slum (Clearance and Rehabilitation of
Slum Dwellers) Act, 1958 and the Acts of Mysore, 1958, Punjab and Haryana, 1961 and
Uttar Pradesh, 1962.

Rural Land Use

For the better use of the rural land, there exist State legislations on consolidation
of holdings, land utilization and improvements, irrigation and water management
(flood and soil erosion control). The consolidation and prevention of fragmentation
Acts129 authorize the state governments to determine the notified areas for the purpose of
consolidation of agricultural holdings and for preventing its fragmentation within their
respective states and settlement of standards for any class of land in the notified areas as
the minimum area that can be cultivated profitably; prohibit or regulate the fragmentation
of land by transfer or partition, make scheme of consolidation by maps and records and

129
The Mysore (Prevention of Fragmentation and Consolidation of Holding) Act, 1966; The Himachal
Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971.

103
consolidation schemes etc., consolidation officers are empowered with functions of
consolidation under these laws.

State statutes dealing with the utilization of lands130empower the collectors to

cause land to be cultivated, upon service of a show cause notice to the owner of the land,
which has not been cultivated for particular number of years (2 years under Himachal
Pradesh Utilization of Lands Act, 1973). On his failure to give satisfactory explanation,
the Collectors may on payment of compensation take the possession of the land and lease
out such land for the purpose of growing food or fodder crops.

Under the land preservation statutes,131 the State Government is authorized to

make notification of areas for the purpose of conservation of sub-soil, water or prevention
of erosion in any area of a State, in the official gazette. The State Government has power
to regulate, restrict or prohibit, by general or special order, within the notified areas,
clearing or breaking up or cultivating of land, the quarrying or other excavations, cutting
of trees of timber or any forest produce (other than grass), setting on fire of trees, forest
produce and the admission, herding, pasturing, etc. The State Government also has power
to require execution of certain works for conservation of land such as levelling, terracing,
drainage, embankment of fields, drains for stream water, protection of land against the
action of wind or water, training of streams and other works necessary for improvement
and conservation of lands.

Some State enactments contain provisions relating to irrigation, drainage and

flood controls. Some of these statutes provide for preparation of schemes for flood
control by way of construction of embankments, bunds, etc., for flood protection and soil
erosion to be undertaken by the State Government subject to the procedural safeguards
such as notice to the affected parties and inquiry. The statutes provide for compensation
for losses suffered as a result of survey work and execution of the scheme 132.

130
Orissa Agricultural Lands Utilisation Act, 1969; The Himachal Pradesh Utilisation of Lands Act, 1973.
131
Punjab Land Preservation Act, 1900; The Punjab Land Improvement Schemes Act, 1963; The Kerala
Land Development Act, 1964.
132
The Assam Embankment and Drainage Act, 1954; The Bengal Embankment Act, 1982; The Bihar
Public Irrigation and Drainage Work Act, 1947.

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 Some of the State enactments contain provisions for obstruction to river flow133 as
well as preparation of schemes for flood control,134 “flood plain zoning,” requisition of
compulsory labour for drainage work in cases of urgency, evacuation of people and
property threatened with floods135 and provisions for levy and recovery of betterment
contribution by the State from landholders benefited by flood control works.136

Prevention of Land Degradation from Mining

The Mines Act, 1952 and the Mines and Minerals (Regulation and Development)
Act, 1957 contain rule to regulate the discharge of tailings, slime and other waste
products. Mineral Conservation and Development Rules, 1988 and Mineral Conservation
Rules, 1960 have been framed in order to ensure that mining is carried out according to
specific well drawn out plan based on scientific report which is known as Mining Plan. In
addition, the Forest (Conservation) Act, 1980, the Environment (Protection) Act, 1986,
the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and
Control of Pollution) Act, 1981 contain provisions for regulation of mining activities.

3.4. Conclusion

The common law doctrines of nuisance, trespass, negligence, the rule of strict
liability and the riparian owner’s rights are still in vogue existing apart from the statutory
control of pollution in India. These doctrines enshrine common law control for the
liability for escape of noxious objects; careless use of noxious articles or pollutants and
the infringement of property rights in water. The distinct advantage of these doctrines is that
they provide injunctive and the compensatory reliefs. Without undermining the significance
of the common law control of the environmental pollution, it must be admitted that common
law is inadequate and too difficult to operate in modern conditions.

133
The Madhya Pradesh Irrigation Act, 1931.
134
The Bombay Irrigation Act, 1879; The Northern India Canal and Drainage Act, 1873; The Rajasthan
Irrigation and Drainage Act, 1954; The Orissa Irrigation Act, 1959.
135
Uttarpradesh Flood Emergency Powers (Evacuation and Requisition) Act, 1951.
136
The Bombay Irrigation Act, 1879; The Andra Pradesh Irrigation (Levy of Betterment Contribution)
Act, 1955; The Madras Irrigation (Levy of Betterment Contribution) Act, 1955; The Travancore-
Cochin Irrigation Act, 1956.

105
 In industrialized society, the tort actions present problems of establishing the
proof of damage which is a pre-requisite for the successful action under the law of torts.
Also, the common law standard of ‘reasonableness’ does not provide satisfactory basis for
regulating pollution. The utility of common law principles seems to have lessened in view of
the fact that the judges in India rarely deal with tort cases involving “subjective standards of
reasonableness”. They rather often seek statutory basis to support their view of reasonableness.
Hence, the further scope of expansion of common law rules has been restricted.

The statutory control of pollution in the form of State, Central and Municipal
enactments are not lacking in India. Even in pre-independence era environment pollution
was regulated by general laws i.e., Indian Penal Code, 1860, Code of Criminal Procedure,
1898 and Police Act, 1861 having relevant provisions dealing with control of water, air,
noise pollution and nuisances.

Water pollution was controlled by the North Canal and Drainage Act, 1873, the
Obstruction of Fairway Act, 1881, the Indian Fisheries Act, 1948. Air Pollution Control
Provisions were contained in the Oriental Gas Company Act, 1857, the Explosive Act,
1884, Indian Boilers Act, 1923, The Petroleum Act, 1934, Motor Vehicle Act, 1939 and
the Factories Act, 1948.

Wildlife conservation and forest conservation, in addition to State enactments

were governed by the Indian Forest Acts, 1927. All these statutes simply contain scanty
and piecemeal provisions hardly enough to effectively deal with problems of combating
pollution.

It was the second half of this century, wherein the legislative activity got a new
impetus with the promulgation of exclusive environment enactments. The recent statutes
passed are Wildlife Protection Act, 1972, Water (Prevention and Control of Pollution)
Act, 1974, Water Pollution Cess Act, 1977, Forest (Conservation) Act, 1980, Air
(Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act,
1986. The recently enacted legislations mark improvement upon the earlier statutes.
These laws are impressive in their range covering hitherto unregulated fields.

106
 CHAPTER-IV

MUNICIPAL SOLID WASTES MANAGEMENT

4.1 Introduction

Today, solid waste has emerged as a major environmental concern from local
level to global level. At the household level, people discard off their waste in an improper
manner. The method of collection, segregation and transportation of wastes are not up to
the mark and has resulted in creating unhygienic conditions in surrounding environment.
Management of Municipal Solid Waste (MSW) is of immediate importance in urban
areas, especially in the rapidly urbanizing cities of the developing world. Most
governments have acknowledged the importance of municipal solid waste management.
However, rapid population growth overwhelms the capacity of most municipal
authorities to provide even the most basic services.

According to United Nations Development Programme survey of 151 mayors

of cities from around the world, the second most serious problem that a city faces
(after unemployment) is insufficient solid waste disposal1. Generally two-thirds of the
solid waste generated is not collected. The uncollected waste is dumped indiscriminately
in the streets and drains, contributing to flooding, breeding of insects, rodent vectors and
thus spreading of diseases. Often waste collected is disposed off in uncontrolled
dumpsites or burned, polluting water resources and the air.

A number of Indian cities adopt the practice of dumping of wastes in open landfill
sites. The land for this purpose is becoming difficult to obtain and most of the existing
sites have reached the limits. The legal and illegal dumps are chocking the land mass and
rising the heights of landfill sites. Since the last fifty years, dumping sites in Indian cities
have occupied as much space as 20,000 hectares 2. In New Delhi 16 landfills sites have
filled up already and existing sites (Bhalswa, Gazipur and Okhla) have reached saturation

1
Da Zhu, P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 1 (The International
Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).
2
Gupta, Rakhi, “Decentralized Model of Domestic Solid Waste Management: A Case Study of Karkesh
Nagar, New Delhi”, Spatio Economic Development Record, Vol.5, No.3 (May-June 1998).

107
point and are over flowing. About 95 per cent of the waste is being disposed off at the
landfills sites, remaining five per cent only go to the process.

There are potential risks for human health and environment from inefficient
collection and unscientific disposal of municipal solid waste. Direct health risk expose
mainly to the sanitary workers and rag pickers. By working in the most unhygienic,
unsafe and vulnerable environment, rag pickers are really providing a great unthankful
service to the society at the cost of their life. For the general public, the main risks to the
health are indirect and arise from the breeding of disease vectors causing the transfer of
pollution to water, air and land resources.

There are three main components (collection, transportation and disposal) of

waste management and these three lacked in terms of infrastructure, maintenance and
upgradation. The weakest link in the whole chain of management is the collection of
waste. Infrastructure related to garbage collection and disposal is not as per their
requirements, which further aggravate the problem. Urban local bodies, which are
entrusted with the responsibility of garbage disposal, are not in position to perform their
duties because of weak institutional and financial constraints. Lack of appropriate space,
funds and adequate technical knowhow are other bottle necks.

The problems of solid waste disposal are compounding every day as amount of
waste generation is increasing and area available for dumping is shrinking. Neither, the
waste generation can be stopped completely nor the given space can be enhanced.
Landfill sites are overflowing, insanity conditions are prevailing near open sites, stray
animals and rag pickers roaming around the waste receptacles. Non collection of garbage
becomes breeding ground for vectors, rodents, mosquitoes, flies and pathogenic micro
organisms posing severe health hazards3.

Today the composition of municipal solid waste has changed in such a manner
that a major proposition of the waste is composed of non-biodegradable materials.
The present system of recycling of plastic, glass, metal, paper etc., is largely informal.
This category of waste can be recycled or disposed off through special processes. Due to
these reasons, the task of handling solid waste becomes a highly specialized managerial task.
3
Subhash Anand, Solid Waste Management, 6-7 (Mittal Publications: New Delhi, 1st Edn., 2010).

108
 Environmental degradation of urban ecosystem and the growing awareness of the
people will put more and more pressure on municipal authorities to find out sustainable
solution to the acute problem. Sustainable solid waste management requires not only
efficient collection, proper disposal but also waste reduction, reuse, recycle and resource
recovery. The important aspects which require priority are to improve the management
and organizational capability and enhance people’s participation and the handling of
waste in appropriate manners. The overall goal of the waste management program must
be for waste minimization, maximization of resource recovery and protection of
environmental quality. Today, there is a need to adopt proper waste management
techniques which would be cost-effective, scientifically better, technically sound,
financially viable, aesthetically beautiful, environmental friendly and socially acceptable
to people.

4.2 Concept of Solid Waste

Waste arises during all human activities such as production, distribution,

consumption and even leisure. A society receives energy and raw materials as inputs
from the environment and generates solid waste as output to the environment.

4.2.1 Waste

The term waste connotes a material of negligible value together with a desire to
discard it from its original environment. The material items which are generated at the
houses and discarded from different other places that no longer need or do not have any
further use and tend to throw them away may be termed as waste.

According to Basel Convention of the United Nations Environment Programme,

wastes are “Substances or objects which are disposed of or are intended to be disposed of
or are required to be disposed of by the provisions of national law” 4.

United Nations Statistics Division (UNSD) of the United Nations Environment

Programme defines wastes as, “Waste are materials that are not prime products (that is
products produced for markets) for which the generator has no further use in terms of

4
Baker, Elaine et al., Vital Waste Graphics, 6 (United Nations Environment Programme: Nairobi,
Kenya, 2004).

109
his/her own purposes of production, transformation or consumption and of which he/she
wants to dispose. Wastes may be generated during the extraction of raw materials, the
processing of raw materials into intermediate and final products, the consumption of final
products and other human activities. Residual recycled are reused at the place of
generation are excluded”5.

Environmental Encyclopaedia defines waste as “When any material exhausted off

its utility capacity and causes a problem due to its aesthetic and environmental reason is
considered as waste”.

Waste is defined as “Any material that is not useful and does not represent any
economic value to its owner, the owner being the waste generator”6.

4.2.2 Solid Waste

Solid waste can be defined as “non-liquid material that no longer has any value to
the person who is responsible for it. The words rubbish, garbage, trash or refuse are often
used as synonyms when talking about solid waste” 7.

Florida Public Law defines solid waste as “Sludge unregulated under the Federal
Clean Water Act or Clean Air Act; Sludge from a waste treatment works, water supply
treatment plant, or air pollution control facility or garbage, rubbish, refuse, special waste or
other discarded material, including solid, liquid, semi-solid or contained gaseous material
resulting from domestic, industrial, commercial, agricultural or governmental operations”8.

Resource Conservation and Recovery Act of US defines “Solid waste means any
garbage or refuse; sludge from a wastewater treatment plant, water supply treatment
plant, or air pollution control facility; and other discarded material, including solid,

5
M.S Bhatt and Asheref Illiyan, Solid Waste Management - An Indian Perspective, 150 (Synergy Books
India: New Delhi, 1st Edn., 2012).
6
Available at: http://www.seas.columbia.edu/earth/wtert/sofos/velasco_thesis.pdf, (visited on 10.09.2014).
7
Da Zhu,P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 3 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).
8
Available at, https://www.flrules.org/gateway/RuleNo.asp?title=SOLID%20WASTE%20MANAGEMENT%
20 FACILITIES &ID=62-701.200, (visited on 10.09.2014).

110
liquid, semisolid, or contained gaseous material resulting from industrial, commercial,
mining and agricultural operations and from community activities9.

Cointreau (1982) defined, “solid waste as organic and inorganic waste materials
produced by households, commercial, institutional and industrial activities, which have
lost their value in the eyes of the first owner” 10.

4.3 Classification of Solid Waste

Solid waste is usually categorized as per their sources, composition, processing

potential and environmental consideration. A general classification is:

“Household wastes” derived from residential neighbourhoods is the largest

component of urban solid waste. It consists of a large number of various elements
difficult to separate such as food and garden waste, paper, plastic cardboard, glass,
leather, old clothes, furniture, vegetable peach, egg shells, newspaper and magazines.

“Commercial wastes” consists of shops, restaurants, hotels, business establishment,

market wastes varied in totally but each specific sources may have only one type of waste
material.

“Institutional wastes” generate from government offices, religious centres’,

schools, colleges, universities. Generally it contains a large amount of paper and other
light material.

“Hospital wastes” is produced during diagnosis, treatment or immunization of

human beings and in research activities and testing of biological. It includes sharps,
disposables, anatomical waste, discarded medicine, chemicals. These are in the form of
disposable syringe, bandages, fluids, human excreta etc. This type of waste is highly
infectious and can be a serious threat to human health if it is not managed in proper and
scientific manner.

“Industrial wastes” derived from enterprises such as packing materials, leather

products, wool and textile factories and assembly enterprises for imported goods. This

9
Available at, http://www.epa.gov/agriculture/lrca.html, (visited on 10.09.2014).
10
Available at, http://shodhganga.inflibnet.ac.in/bitstream/10603/4180/7/07_chapter%201.pdf, (visited
on 10.09.2014).

111
waste tends to be specific to the city concerned and linked to local natural resources
forming the basis for local industry.

“Non-Biodegradable wastes” are those materials which cannot be degraded,

which require artificial means of processing to reduce its amount and are not perishable.
It includes papers, cardboard, packing, pouches cassettes, computers disc, printer
cartridges, discarded clothes, furniture and equipments, light bulbs, tube lights, paints etc.

“Bio-degradable wastes” includes those wastes which reduce biologically, such as

food waste, flowers, fruit waste, garden waste, kitchen waste etc.

“Compostable wastes” are those wastes on which the micro-organisms can feed
and reduce the quantity with the help of biological processes. Such wastes can act as
good nutrient fertilizers for vegetative cover without disturbing the eco-system.

“Combustible wastes” includes those materials which can be burned downed or

inflamed in order to properly dispose them off although the residue remains of very small
percentage is left behind and can be mixed with the soil.

“Inert wastes” includes the wastes, which does not react with any chemical
composition and hence retain their present nature of composition, even, if they all
dumped in to the soil or set ablaze11.

4.4 Municipal Solid Waste

The term “municipal solid waste” refers to solid waste from houses, streets and
public places, shops, offices and hospitals. Management of these types of waste is most
often the responsibility of municipal or other governmental authorities. Although solid
waste from industrial processes is generally not considered municipal waste, it nevertheless
needs to be taken into account when dealing with solid waste because it often ends up in
the municipal solid waste stream12.

The term “municipal solid waste” includes the waste stream for the areas of
residential, commercial, institutional, industrial and construction. However, the definition

11
Subhash Anand, Solid Waste Management, 90-91 (Mittal Publications: New Delhi, 1st Edn., 2010).
12
Da Zhu,P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 3 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

112
varies greatly among waste studies and some sources are commonly excluded such as
industrial and hazardous waste often, only residential refuse is considered as municipal
waste. Generally, municipal solid waste is a heterogeneous mixture of paper, plastic,
cloth, metal, glass and organic matter etc., generated from various sources.

According to Section 3 (xv) of the Municipal Solid Wastes (Management and

Handling) Rules 2000 “Municipal solid waste” includes commercial and residential
wastes generated in municipal or notified areas in either solid or semi-solid form
excluding industrial hazardous wastes but including treated bio-medical wastes13.

According to the World Bank 1994, municipal solid waste includes refuse from
the institution, market waste, yard waste and street sweepings. The street waste is also
included in the municipal solid waste.

According to Municipal Corporation Delhi, municipal solid waste consists of

household waste, construction and demolition debris, sanitation residue and waste from
streets; this garbage is generated mainly from residential and commercial complexes.
Municipal solid waste is defined as any waste generated by household, commercial and
institutional activities and is not hazardous14.

The volume of municipal solid waste generated per person is generally much
higher in wealthy industrially developed urban areas, than the poorer rural areas.
High income countries generate 300 to 1000 kg’s waste per person each year while low
income nations generate between 100 to 200 kg’s per person per year. Municipal solid
waste comprises two types of materials, refuse and thrash. Refuse includes garbage and
rubbish. Garbage contains highly decomposable food waste. Rubbish contains mostly
dry, non-putrescible items such as glass, rubber, metals and slowly decomposable or
combustible materials such as paper, textiles or wood objects. Trash includes bulky waste
materials that generally require special handling15. Table 4.1 shows the “classification of
materials comprising municipal solid waste”.

13
Available at: http://www.moef.nic.in/legis/hsm/mswmhr.html, (visited on 11.09.2014).
14
Available at, http://www.seas.columbia.edu/earth/wtert/sofos/velasco_thesis.pdf, (visited on 10.09.2014).
15
Subhash Anand, Solid Waste Management, 92-93 (Mittal Publications: New Delhi, 1st Edn., 2010).

113
 TABLE 4.1

Materials Comprising Municipal Solid Waste16

Component Description

The animal, fruit or vegetable residues (also called garbage) resulting

from the handling, preparation, cooking and eating of foods. Because
Food Wastes
food wastes are putrescible, they will decompose rapidly, especially
in warm weather.

Combustible and non-combustible solid wastes excluding food wastes

are other putrescible materials; typically, combustible rubbish consists
of materials such as paper, cardboard, plastics, textiles, rubber,
Rubbish
leather, wood, furniture and garden trimmings. Non-combustible
rubbish consists of items such as glass, crockery, tin cans, ferrous,
non-ferrous metals, dirt and construction wastes.

Materials remaining from the burning of wood, coal, coke and other
combustible waste. Residues from power plants are normally not
Ashes and
included in this category. Ashes and residues are normally composed
Residues
of powdery materials, cinders, clinkers and small amounts of burned
and partially burned materials.

Wastes from razed buildings and other structures are classified as

demolition wastes. Wastes from the construction, remodelling and
Demolition and
repairing of residential, commercial and industrial buildings are
Construction
classified as construction wastes. Theses wastes may include dirt,
Wastes
stones, concrete, bricks, plaster and plumping heating and electrical
parts.

Wastes such as street sweeping, road side litter, catch-basin debris,

Special Wastes
dead animals and abandoned vehicles are classified as special wastes.

Treatment Plants The solid and semi-solid waste from water, waste water and industrial
Wastes waste treatment facilities are included in the classification.

4.5. Waste Characterization

Solid waste stream should be characterized by their source, by types of waste

produced as well as by generation rates and composition. Correct information in these
areas is necessary in order to monitor and review of existing waste management system.

16
Moitra. M, “Management of Solid Waste; Key to Sustainable Development”, SPA Newsletter on
Human Settlement, Vol.3, No.3-4 (Jan-Jun, 1996).

114
Hence, it is important to explain the composition of municipal solid waste in a clear
and consistent manner. Overall municipal solid waste generated in urban areas varies
45-75 percent organic materials. The contribution of non-degradable waste is higher in
cities of highly developed world as compared to developing world, but the organic waste
is higher in developing countries. The type of waste generated is also influenced by
geographical locations, land use pattern, functional activities, economic conditions and
policy of government. With the rising urbanization per-capita income and change in the
lifestyle and food habits, the amount of municipal solid waste has been increasing rapidly
and its composition also changing. Over the last few years, the consumer style has grown
rapidly leading to products being packed in cans, aluminium foils, plastics and other such
non-biodegradable items that cause incalculable harm to the environment.

The organic content of Indian city refuse is much higher due to practice of eating
fresh vegetables and fruits as compared to consumption of tinned and prepared food in
developed countries17. In municipal solid waste, after bio-degradable materials the second
larger component is the inert material usually consisting of silt, construction, debris and
other inert rubbish.

4.5.1 Physical composition of waste

Municipal solid waste is a heterogeneous mixture of paper, plastic, cloth, metal,

glass and organic matter etc., generated from households, street, commercial establishment
and market. The composition of waste plays a very significant role in the formulation of the
waste management plans.

Composition of refuse from some of the Indian cities like Kolkata, Delhi, Chennai
and Hyderabad show that the urban waste is heterogeneous in character. In this waste,
combustible waste was highest (48%) in Chennai and lowest in Delhi with only 35%.
Ash was found maximum in Delhi and Hyderabad. Chennai waste had rich quantity of
carbon contents, while it was lacking in Delhi and Hyderabad. Among these four cities,
waste of Delhi had no value of nitrogen, phosphorous and potassium.

17
Holmes, R. (ed.) Managing Solid Waste in Developing Countries, (John Wiley and Sons: New York, 1984).

115
4.5.2 Chemical composition of Waste

Generally all middle and low income countries have a high percentage of
combustible organic matter in the urban waste stream, ranging from 40-85% of total.
China and India diverge from this trend as they traditionally use coal as a household fuel
source. The ash that is subsequently produced is very dense and tends to dominate the
waste stream in terms of weight18.

In Indian society, waste is dominated by organic materials due to their general

vegetarian habits. Women do not throw the old clothes; they rather exchange it for
stainless steel utensils and crockery. The chemical contents in the waste stream place
crucial role in the decomposition process.

4.6 Impact of Improper Municipal Solid Waste Management

A guidance note titled “Municipal Solid Waste Management on a Regional

Basis”, by the Ministry of Urban Development (MoUD), Government of India observes
that “Compliance with the Municipal Solid Waste Management Rules 2000 requires that
appropriate systems and infrastructure facilities be put in place to undertake scientific
collection, management, processing and disposal of municipal solid waste. However,
authorities are unable to implement and sustain separate and independent projects to
enable scientific collection, management, processing and disposal of municipal solid
waste. This is mainly due to lack of financial and technical expertise and scarcity of
resources, such as land and manpower”19.

Improper solid waste management deteriorates public health, degrades quality of

life and pollutes air, water and land resources. It also causes global warming, climate
change and impacts the entire planet. Improper waste management is also identified as a
cause of 22 human diseases20 and results in numerous premature deaths every year.

18
Subhash Anand, Solid Waste Management, 116 (Mittal Publications: New Delhi, 1st Edn., 2010).
19
Ranjith Kharvel Annepu, Sustainable Solid Waste Management in India, 53 (Columbia university:
New York, 2012).
20
Available at: http://web.mit.edu/urbanupgrading/urbanenvironment/resources/references/pdfs/WhatAWaste
Asia .pdf, (visited on 11.09.2014).

116
4.6.1 Unsanitary Land filling (Dumping)

Majority of the municipal solid waste collected in India is disposed off on open
land or in unsanitary landfills. This is in addition to the irregular and incomplete waste
collection and transportation in many cities, which leaves municipal solid waste on the
streets. Many municipalities in India have not yet identified landfill sites in accordance
with Municipal Solid Waste Rules 2000. In several municipalities, existing landfill sites
have been exhausted and the respective local bodies do not have resources to acquire new
land. Such lack of landfill sites decreases municipal solid waste collection efficiency21.
Unsanitary land filling pollutes ground and surface waters, emits green house gases and other
organic aerosols and pollutes the air. Pests and other vectors sitting on improperly disposed
solid wastes is a nuisance and above that a breeding ground for disease causing organisms.

4.6.2 Open Burning, Landfill Fires and Air Quality Deterioration

Open burning is the burning of any matter in such a manner that products of
combustion resulting from the burning are emitted directly into the ambient air without
passing through an adequate stack, duct or chimney. Open burning of wastes is practiced
all over India due to reasons like, open burning by waste-pickers for recovery of metals
from mixed wastes; open burning in bins by municipal workers or residents to empty
municipal solid waste collection bins; open burning of plastic wastes by street dwellers
for warmth at night.

In addition to open burning of wastes, landfill fires are also common at every
landfill in India. They are caused due to the build-up of heat inside waste beds due to
decomposing (aerobic or un-aerobic) organic matter. Sometimes, these fires continue for
weeks at a stretch, even after long showers.

Air Emissions from Open Burning and Landfill Fires

A study by National Environmental Engineering Research Institute in 2010, “Air

Quality Assessment, Emissions Inventory and Source Apportionment Studies: Mumbai”22
found that open burning and landfill fires are a major source of air pollution in Mumbai.

21
Available at: http://www.pppinindia.com/pdf/dea_ppp_criticality_legal.pdf, (visited on 11.09.2014).
22
Available at: http://www.moef.nic.in/downloads/public-information/Rpt-air-monitoring-17-01-2011.
pdf, (visited on 11.09.2014).

117
The study found that about two per cent of the total municipal solid waste generated in
Mumbai is openly burnt on the streets and 10 per cent of the total municipal solid waste
generated is burnt in landfills by humans or due to landfill fires.

In Mumbai, open burning of municipal solid waste is the largest emitter of carbon
monoxide(CO), particulate matter (PM), carcinogenic hydrocarbons (HC) and nitrous
oxides (NOX), among activities that do not add to the economy of the city; the second
largest emitter of hydrocarbons (HC); the second largest emitter of particulate matter
(PM); the fourth largest emitter of carbon monoxide compared to all emissions sources in
Mumbai; and the third largest emitter of CO, PM and HC combined together in
comparison to all emission sources in the city.

Dioxins/Furans Emissions

Dioxins and Furans are known carcinogenic agents; they can cause cancer in case
of long term exposure. The risk of exposure to dioxins/furans is considerably increased
due to the fact that municipal solid waste is burnt on the streets and landfills which are at
ground level, releasing them directly into ambient surroundings. Also, open burning is a
frequent occurrence in some communities and landfill fires, once started, go on for weeks
at a stretch, increasing human exposure further. During health studies conducted in
Kolkata23, waste pickers who are regularly exposed to landfill fire emissions for longer
periods were found to have a “Chromosome Break” incidence which was 12 times higher
than the control population. Chromosome Break often leads to cancer. Municipality
workers were also found to have higher incidence of Chromosome Break compared to
control population, but less than that of waste pickers.

4.6.3 Water Pollution

Unsanitary landfills can contaminate ground and surface water resources when the
leachate produced percolates through the soil strata into the groundwater underneath or is
washed as runoff during rains. Leachate is generally a strong reducing liquid formed

23
Arun Kanti Biswas, Sunil Kumar, S. Satheesh Babu, Jayanta Kumar Bhattacharyya and Tapan
Chakrabarti, “Studies on environmental quality in and around municipal solid waste dumpsite”,
Resources, Conservation and Recycling, Vol. 55, Issue 2 (2010) P. 129-134.

118
under methanogenic (anaerobic) conditions. The characteristics of leachate depend on the
content of various constituents in the dumped waste.

“Studies on Environmental Quality in and around Municipal Solid Waste

Dumpsite” in Kolkata, by Biswas A.K., et al. 24 found moderately high concentrations of
heavy metal in groundwater surround the dumpsite. The study found out that the
groundwater quality has been significantly affected by leachate percolation. Leachate
generally contains organic chemicals formed by anaerobic digestion of organic wastes
and heavy metals leached from inorganic wastes. The heavy metals generally observed in
leachate are Lead (Pb), Cadmium (Cd), Chromium (Cr) and Nickel (Ni). All these heavy
metals are characterized as toxic for drinking water. Due to the reducing property of
leachate, during percolation through soil strata, it reacts with Iron (Fe) and Manganese
(Mn) species underground and reduces them into more soluble species, thus increasing
their concentrations in groundwater. Such reactions when they occur, pose a serious
drinking water toxic risk.

4.6.4 Land Degradation and Scarcity

Land filling of municipal solid waste is a common waste management practice

and one of the cheapest methods for organized waste management in many parts of the
world. This practice of unsanitary land filling not only occupies precious land resources
near urban areas; it also degrades the quality of land and soil in the site. Presence of
plastics and heavy metals in the soils make it unfit for agriculture and emissions of
methane and structural instability of the land make it unfit for construction activities.
Land filling occupies vast amount of lands near urban areas. A 1998 study by The Energy
Resources Institute, earlier Tata Energy Research Institute (TERI), titled ‘Solid Waste
Management in India: options and opportunities’ 25 calculated the amount of land that was
occupied by all the waste that was generated in India, post-independence, until 1997.
Based on a Business As Usual (BAU) scenario of 91 percent land filling, the study

24
Arun Kanti Biswas, Sunil Kumar, S. Satheesh Babu, Jayanta Kumar Bhattacharyya and Tapan
Chakrabarti, “Studies on environmental quality in and around municipal solid waste dumpsite”,
Resources, Conservation and Recycling, Vol. 55, Issue 2 (2010) P. 129-134.
25
Shuchi Gupta, Krishna Mohan, Rajkumar Prasad, Sujata Gupta and Arun Kansal, “Solid waste
management in India: options and opportunities”, Resources, Conservation and Recycling, Vol. 24,
Issue 2, (November 1998) P. 137-154.

119
estimates that the waste generated in 2001 has occupied 237.4 sq.km or an area half the
size of Mumbai; by 2011 would have occupied 379.6 sq.km or more than 218,000
football fields or 90 per cent of Chennai; by 2021 would need 590.1 sq.km which is
greater than the area of Hyderabad (583 sq.km)26.

The Position Paper on The Solid Waste Management Sector in India, published
by Ministry of Finance in 2009, estimates a requirement of more than 1400 sq.km of land
for solid waste disposal by the end of 2047 if municipal solid waste is not properly
handled. This area is equal to the area of Hyderabad, Mumbai and Chennai together27.

4.6.5 Public Health Crisis

The present level of solid waste management service in urban areas is a potential
threat to public health and environment. Inhalation of bio-aerosols and of smoke and
fumes produced by open burning of waste can cause health problems. Toxic materials
present in solid waste are determinants for respiratory and dermatological problems, eye
infections and low life expectancy28. The carbonaceous fractions and toxic elements like
Chromium (Cr), Lead (Pb), Zinc (Zn), etc. dominate the fine particle range. As most of
the fine particles can possibly enter the human respiratory systems, their potency for
health damage is high. Also, these fine particles from open burning which constitute
higher fractions of toxics are mostly released at ground level 29. On comparing emissions
from open burning to the concentrations and composition of emissions causing indoor air
pollution due to bio-fuel burning inside homes, it can be concluded that emissions from
open burning also cause numerous premature deaths.

A less observed side effect of improper solid waste management in India is the
introduction of heavy metals into the food chain. Compost from mixed waste composting
plants is highly contaminated with heavy metals. Using this compost on agricultural

26
Available at: http://www.citymayors.com/statistics/largest-cities-density-125.html, (visited on 11.09.2014).
27
Ranjith Kharvel Annepu, Sustainable Solid Waste Management in India, 64 (Columbia university:
New York, 2012).
28
Bob Jan Schoot Uiterkamp, Hossein Azadi, Peter Ho, “Sustainable Recycling Model: A Comparative
Analysis Between India and Tanzania”, Resources, Conservation and Recycling, Vol. 55, Issue 3
(2011) P. 344-355.
29
Available at: http://www.moef.nic.in/downloads/public-information/Rpt-air-monitoring-17-01-
2011.pdf, (visited on 11.09.2014).

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fields will result in contamination of the agricultural soil with heavy metals. Food crops
grown on contaminated agricultural soils when consumed will introduce the heavy metals
into the food chain and lead to a phenomenon called "biomagnifications". Biomagnifications
is defined by United States Geological Survey (USGS) as the process whereby the tissue
concentrations of a contaminant (heavy metals) increase as it passes up the food chain
through two or more tropic levels (plants and humans or plants, cattle and humans).
Heavy metals generally found in mixed waste composts are Zinc (Zn), Copper (Cu),
Cadmium (Cd), Lead (Pb), Nickel (Ni) and Chromium (Cr).

Long-term exposure to these heavy metals through food can cause severe health
damage. Heavy metals in human body are known to cause damage to the central nervous
system and circulatory system, liver and kidney dysfunction, anaemia, stomach and
intestinal irritation and psychological and developmental changes in young children.
However additional research is required to properly understand the transport pathways of
heavy metals into human bodies through different agricultural crops and meat products.
Heavy metal contamination of groundwater due to leachate percolation below unsanitary
landfills can also cause biomagnifications of heavy metals in humans who drink water
from those sources. Further, long term exposure of populations surrounding dumpsites to
open waste disposal can lead to health problems. Ill health of municipal workers and
waste pickers means a threat to public health. Also, contagious diseases can spread
rapidly in densely populated Indian cities posing a bigger threat to public health.

Diseases caused due to stray animals, pests and insects attracted to wastes is a threat
to public health too. Sewers and drains clogged by solid waste are breeding grounds for
mosquitoes. Improper solid waste management in the city Surat caused a city-wide bubonic
plague epidemic in 1994, which later transformed Surat into one of the cleanliest cities in
India. Stray animals and insects carry other diseases like cholera and dengue fever30.

4.7 Management of Municipal Solid Wastes

In view of the serious environmental degradation resulting from the unscientific

disposal of municipal solid waste, the Ministry of Environment and Forests (MoEF),

30
Available at: http://web.mit.edu/urbanupgrading/urbanenvironment/resources/references/pdfs/WhatAWaste
Asia. pdf, (visited on 11.09.2014).

121
Government of India, has notified the ‘Municipal Solid Waste (Management and Handling)
Rules, 2000’ making it mandatory for urban local bodies to improve the systems of solid
waste management. These rules laid down procedures for waste collection, segregation,
storage, transportation, processing and disposal. Further, the rules mandate that all cities
should set up suitable waste treatment and disposal facilities by December 31, 2003 or earlier.
These rules also specify standards for compost quality, health control & management and
closure of land-fills.

4.7.1. Generation of Solid Waste

In the earlier times, population was small, needs were few and resources were
abundant, the generation of waste was such that it got naturally recycled, being mostly
bio-degradable. However, after the industrial revolution, the resources have been
recklessly used and there have been different types of wastes. In the management of
municipal solid waste, generation is basic fundamental aspects which change with
location, socio-economic and background of the people. The waste generation is increasing
day by day not only in big cities but also in smaller towns. Because of rapid population
growth and urbanization, there has been a significant increase in domestic, urban and
industrial waste in last few decades. In 1947, cities and towns in India generated as
estimated six million tonnes of solid waste which has been increased to forty eight
million tonnes after the 50 years in 199731. About 18percent is generated by six metro
cites of India. According to Central Pollution Control Board, 2006 the highest quantity of
municipal solid waste is being generated by Delhi among the ten metro cities of India,
followed by Mumbai, Chennai and Kolkata. Hyderabad, Bangalore and Ahmadabad
occupy fifth, sixth and seventh position respectively.

It has been estimated that by 2030, India would generate 1, 25,000 million tonnes
of wastes. Domestic waste generation varies from 300 grams per capita per day to 2.5 kg’s
per capita per day throughout the world. From the year 1990 to 2000, quantity of waste
generation doubled from 160 million tonnes to 332 million tonnes in developing
countries. By 2025, cities would produce five times the waste, they produced today.

31
Subhash Anand, Solid Waste Management, 94 (Mittal Publications: New Delhi, 1st Edn., 2010).

122
4.7.2. Collection of Municipal Solid Waste

Collection includes temporary storage and containerization, transfer to a collection

vehicle and transports to a site where the waste undergoes processing and finally
disposes. Waste collection is the most expensive phase largely because it is labour
intensive. In addition, proper collection techniques are important to protect public health,
safety and environmental quality. Solid waste collection may be a local municipal
responsibility, whereby public employees and equipment are assigned to the task.

Different cities have various methods for the waste collection like community bin
collection, house to house collection on regular pre-informed timings and scheduling by
using bell ringing of musical vehicle etc., are few modes of them. Among the 25 cities
with a population of over one million, 17 have door-to-door collection systems in India.
Delhi is among the cities that have failed to introduce the door-to-door service32.

The waste is collected from residential, markets, institutions, open spaces, street
and other premises and taken to one of the storage facilities of various types. Urban local
bodies spend between Rupees 500 to 1500 per tonne on solid waste management of
which 60-70 percent on transportation and less than 5% on treatment and disposal.

Management of municipal solid waste aims at preventing litter on the streets.

Waste that is stored and segregated at households or other establishments needs to be
collected following a fixed schedule. Door-to-door collection also requires co-operation and
participation of citizens, who must bring their wastes to the door step when waste collectors
arrive. Collection vehicles must meet the requirements of local conditions. Therefore, an
assessment of the housing situation, street conditions and geographic and topographic
situation is always a pre requisite for efficient planning and decision making for primary
collection equipment. In general, primary waste collection can be done with slow and smaller
vehicles, which do not need to cover very long distances. Motorized vehicles are more
suitable in areas with less dense housing patterns, because the collectors will need to cover
long distances. Those vehicles are also suitable for hilly areas.

32
“Delhi Ranks Poorly in Solid Waste Management”, The Hindustan Times: Delhi, 21.02.2007).

123
Collection Frequency

In India, which has a hot and humid climate, organic bio-degradable waste degrades
easily, thereby producing odours and attracting vermin and disease vectors. Therefore,
bio-degradable waste needs to be collected every day. Dry waste (inorganic recyclables)
can be collected less frequently; however, collection at least once per week is advisable.
Daily collection service is very important in India. Women responsible for household
hygiene would not accept storage of waste in their home for more than 24 hours. When
collection is not provided on a daily basis, they discard waste on the streets. Shops and
establishment also do not accept storing waste for more than 24 hours33.

Options for Primary Collection

According to the Municipal Solid Waste (Management and Handling) Rules

2000, there are two options for the primary collection: door-to-door collection at preset
intervals or community bin collection (bring system)

Door-To-Door Collection

There are different options for door-to-door collection

Door-To-Door Collection carried out along with street sweeping

With this option, street sweepers are given containerized handcarts or

containerized tricycles. The vehicles have four to eight containers and a bell or a whistle.
Depending on the density of the streets, a road length of between 350 and 750 meters is
allotted to each sanitation worker for street sweeping. While sweeping the streets, sweepers
are also expected to do door-to-door collection of waste for the 150 to 250 houses situated on
the both sides of the streets they are allotted to sweep. They ring the bell or use the
whistle to announce their arrival and citizens are expected to bring out their waste.

33
Da Zhu,P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 28 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

124
Door-to-Door collection by resident welfare associations and nongovernmental
organizations

Another option for door-to-door collection is to entrust the work to Resident

Welfare Associations (RWAs) or NGOs. Those organizations could be offered a
reasonable subsidy (such as Rs 10 per house per month) to assist them in appointing and
financing their own part-time sanitation workers for the door-to-door collection service.
RWAs or NGOs can be invited to submit applications and the agreement can be
established through a memorandum of understanding.

The RWA or NGO can appoint one part-time sanitation worker per 200
households for door-to-door collection. This individual will work for four hours in the
morning. Flexible hours can be fixed for shops and establishments. Sanitation workers
can be given a containerized tricycle with a bell or whistle to facilitate collection of waste
from the doorstep and should be paid at least minimum wage, as prescribed by the state
government for part-time workers. Ahmadabad, Hyderabad, Rajkot, Bangalore, Jaipur
and Chennai are cities where door-to-door collection services are carried out through
RWA, NGO and other private initiatives34.

Door-to-door collection by private waste collectors

A third option for providing door-to-door collection is to contract with the private
sector. Municipal authorities may prepare reasonably sized packages to make such
contracts viable. The contracts could be only for door-to-door collection or could also
include transport of waste.

Personalized door-to-door collection in high-income areas and compounds

High-income groups expect more personalized service and may not mind paying
higher fees for door-to-door collection. In such areas, sanitation workers will need to visit
and collect waste from each house in the area allotted to them. This system reduces the
productivity of labour, so more workers will be needed to cover the same number of
houses in a four-hour schedule. Hence, the cost of collection will be 30 to 40 percent

34
Da Zhu,P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 28 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

125
higher. The higher cost justifies higher fees from such communities. The fees could be set
at rates that would help to subsidize collection in poor communities.

Community Bin Collection

In the past, community bins have not been well accepted by citizens. Bins have
not been emptied in time so they overflow, thereby causing an unhygienic situation. This
situation is made worse because citizens tend to throw waste at the bins from a distance
because they dislike coming too close. However, community bins are very effective for
collection and still can be used in selected situations. For instance, bins can be placed in
high-rise multi-story buildings, housing compounds, or slum areas. Essential for the
acceptance of community bins is their frequent emptying and cleaning to avoid nuisance
from litter, odour and animals. Community bins must be designed to allow easy access
for citizens, easy access for trucks, easy exchange or emptying and easy cleaning of the
area. Ideally, bins will not be emptied but exchanged by a clean and empty bin with a
truck. Optionally, those bins can be unloaded into a truck mechanically or manually,
depending on the mechanization adopted in the city35.

Primary Collection of Wastes from Societies/Complexes

In private societies, complexes and multi storied buildings, normally no sweepers

are provided by municipal corporation, hence private sweepers are generally engaged.
It may be therefore made compulsory for the management of the societies, complexes and
multi storied building to keep community bins or containers in which dry and wet waste
may be separately stored by the members. Such bins may be placed at an easily
approachable location to facilitate easy collection by the municipal staff or the
contractors engaged by the municipal corporation. The municipal corporation should
arrange to collect waste from these community bins/containers through handcarts, pick-
up vans, or other municipal waste collection vehicles as may be convenient. To facilitate
collection of waste from societies or commercial complexes, the municipal corporation

35
Da Zhu,P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 30 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

126
should by a rule, make it obligatory for them to identify an appropriate site within their
premises for keeping such bin/container for the storage of waste 36.

Collection of Waste from Slums

The municipal corporation should collect waste from slums through community
bins provided by the municipal corporation. Residents should bring their wastes from
their houses to community bins. They should bring their biodegradable waste to these
bins only an hour or two before the time of clearance. The municipal corporation may, if
so desired, engage a private contractor for collection of this waste.

Collection of Waste from Shops and Establishments

Shops and establishments normally open after 9 or 10 am. These timings do not
suitable with the usual work schedule of sweepers. Under this situation one of these three
alternatives shall be adopted.

1. Sweepers shall first carry out the work of street sweeping in the morning hours as
usual and soon thereafter take up the work of door-step collection of waste, after most
of the shops have opened. Waste collectors (rag pickers) shall be organized to collect
the recyclable waste from shops and establishments as soon as they opens, as most of
such waste is recyclable. The shops and establishments shall be asked to store waste
in two bins if they produce waste other than recyclable waste also.

2. The recyclable material received by the waste collectors directly from shops and
establishments would give them a better return. The waste would be dry and not
soiled and would fetch a good price in the market. This will work as an incentive for,
them to continue door- to door collection.

3. The associations of markets, shops and establishments shall be persuaded to organize

this service with the help of NGOs and rag pickers in their market37.

36
Project Report, “Strengthening Primary and Secondary Solid Waste Management in the city”, Rajkot
Municipal Corporation, (Project period from 2005-06 to 2010-11), p-93.
37
Project Report, “Strengthening Primary and Secondary Solid Waste Management in the city”, Rajkot
Municipal Corporation, (Project period from 2005-06 to 2010-11), p-94.

127
Collection of Waste from Hotel and Restaurant

The hotels and restaurants shall make their own arrangements for collection of
waste through their own association. The Municipal Corporation may extend help in
primary collection of such waste by deploying its own manpower and machinery for door
step collection of such waste on full cost-recovery basis. This doorstep service may be
contracted out by the municipal corporation if so desired. Charges for the collection of
hotel waste may depend upon the quantity of waste to be picked up from the hotels and
restaurants and frequency of collection required. The cost recovery may be planned
according to the classification of hotels/ restaurants made on the above basis and decided
in consultation with them.

Vegetable, Fruit, Meat Markets Waste

These wastes should be removed on a daily basis departmentally or through a

contractor on full or part-cost-recovery basis as may be deemed appropriate by the
municipal corporation. The large containers kept in the fruit and vegetable markets
should properly be emptied during non-peak hours and the waste from meat and fish
markets should be collected through a closed pick-up van service by engaging a
contractor as deemed expedient by the municipal corporation.

Collection of garden waste

The waste stored in public and private parks, gardens, lawn plots etc. should be
collected on a weekly basis by arranging a rotation for collecting such waste from
different areas, on different days to be notified to the people to enable them to trim the
trees and lawns accordingly and keep the waste ready. This waste shall be collected through a
contractor or department as deemed appropriate by the urban local authority. Cost recovery
shall be insisted upon, based on the volume of waste collected. The existing tractors may be
deployed for weekly collection of garden waste from different areas.

Collection of waste from marriage halls and community halls

A special pick up arrangement should be made for collection of waste from these
establishments daily on a full-cost-recovery basis. The cost of such collection could be

128
built into the charges for utilizing such halls. This service may be provided preferably
through a contractor or department, as the municipal corporation deems fit38.

Collection of construction and demolition waste

1. The municipal corporation should prescribe the rate per ton for the collection,
transportation and disposal of construction waste and debris and notify the same to
the people.

2. Every person who is likely to produce construction waste shall be required to deposit
with the municipal corporation an approximate amount in advance at the rates as may
be prescribed by the municipal corporation from time to time, for the removal and
disposal of construction waste from his premises by the municipal corporation.

3. Such amount shall be deposited at the- time when the building permission is being
sought and in cases where such permission is not required, at any time before such
waste is produced.

4. The charges for removal of construction waste to be doubled for those who fail to
deposit the amount in advance.

5. To facilitate the collection of small quantities of construction and demolition waste

generated in the city, suitable sites shall be identified in various parts of the city and
notified people to deposit small quantities of construction and demolition waste.
Containers could be provided at such locations and small collection charge levied for
receiving such waste at such sites and for its onward transportation. Rates shall be
prescribed for such collection by the municipal corporation. Contracts could be given
for managing such sites.

Dairy and cattle-shed waste

The dairies and cattle breeders having sheds within the city limits should be asked
to move the cattle sheds outside the city limits. Such waste producers should be directed
not to stack the cow dung or other stable wastes within their premises or on the roadside
for future use or for sale as it creates unsanitary conditions. They must, therefore, transfer

38
Project Report, “Strengthening Primary and Secondary Solid Waste Management in the city”, Rajkot
Municipal Corporation, (Project period from 2005-06 to 2010-11), p-95.

129
the waste produced by them daily into the specified municipal storage containers nearby,
which should be provided by the corporation to avoid unhygienic conditions.

4.7.3 Storage of Municipal Solid Wastes

Solid waste collected from the doorstep through the primary collection system has to
be stored at a convenient place for its onward transport in a cost-effective manner. In general,
further waste handling should follow the principle of “Do not handle waste twice!”39

Storage Depots

Municipal authorities need to dispense with open waste storage depots and to
replace concrete cylindrical bins and missionary bins, which are inefficient and
unhygienic, with neat, mobile covered containers. They should identify suitable locations,
preferably from among the existing locations of waste storage depots in the city, where
large containers ranging from three cubic meters to seven cubic meters could be placed
for secondary storage of waste. The number of containers required will depend on the
area of the city and its population.

A waste collector with a handcart should not be expected to walk more than
250 meters. Therefore, containers should be available within a radius of 250 metres.
At least four containers per square kilometre need to be placed. In high-density areas, one
container should be placed for every 5,000 to 10,000 residents, depending on the size of
the container. A three cubic meter container will hold 1.25 to 1.50 metric tons of waste,
just enough for a population of 5,000 whereas, a container of seven cubic meter capacity
can easily handle the waste of a population of 10,000 to 12,000. In highly spread-out
areas, the municipalities may use their discretion in placing containers to facilitate an
appropriate secondary storage system in a cost-effective manner. The containers could
either be taken directly to the disposal site if the distance is shorter than 15 kilometres or
might be taken to a transfer station if the distance is longer 40.

39
Da Zhu,P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 33-34 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).
40
Da Zhu,P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 35 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

130
Transfer Stations

In cities where the treatment and disposal site is more than 15 kilometres away
from the city, transfer stations might be appropriate. Waste is transferred from small
vehicles into larger container trucks so that waste can be transported more efficiently
over long distances. It would be uneconomic to transport small quantities of waste to a
long-distance haul. The following might be considered:

1. The transfer station needs to be so designed that waste can directly be

transferred into a large vehicle or container.

2. Large vehicles or containers with a capacity of 20 to 30 cubic meters are typically

used for long-distance waste transport to a treatment and disposal site.

3. The design and capacity of transfer stations and storage equipment strongly
depends on the waste quantity and on vehicles used for primary and secondary
waste.

Municipal authorities should very carefully select the site of transfer station.
One or more transfer stations in each city can facilitate optimum use of the fleet of small
vehicles and can take optimum advantage of large hauling vehicles for bulk transport of
waste. Transfer stations should be decentralized within the city, allocated to an enclosed
area and situated in the general direction of the main landfill site. The timings of the
transfer station should match with the timings of waste transport from the city so that
direct transfer of waste from a small vehicle to a large vehicle is possible. This arrangement
can be facilitated by a split-level transfer station, where a small vehicle can go over a
ramp and directly tip into a large vehicle. However, if direct transfer of waste from a
small vehicle to a large vehicle is inconvenient, the municipal authority could also plan a
transfer station at which waste is initially deposited in a large bunker and later moved
using special equipment such as a grabbing machine. The contents could then be lifted
into a large vehicle at any time during the day. Such an arrangement necessitates multiple
handling but has the flexibility to allow the transfer of waste any time during the day41.

41
Da Zhu, P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 35 36 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

131
4.7.4 Transportation of Municipal Solid Waste

Transportation of waste from collection centre to final disposal site is a crucial

step in solid waste management. In fact, transportation is a link between the collection
and disposal of garbage on the land fill sites and for this, proper vehicles and equipments
are required. A transfer station is a facility at which solid wastes from individual
collection trucks are consolidated into large vehicles, such as tractor-trailer units. Waste
transportation services are carried out by the municipalities employing vehicles like open
trucks, tractor-trailer, dumper etc. The most expensive aspect in solid waste management
is the cost incurred in transporting the garbage to disposal ground 42.

The main types of modern vehicle used for transportation are Refuse Removal Trucks
(RRT), Loaders, Mini Dumpers, Tractor-Trailer and also Bullock Carts in rural areas43.

1. RRT: These are ordinary trucks tipped with hydraulic tipping facilities, have a
capacity of about 8 cu meters and can lift about 4 tonnes of solid wastes.]

2. Refuse Collector: These are modern special trucks with hydraulic compaction and
loading facility and have a capacity of 14 cu meters and carry 8 tonnes of load.

3. Mini Refuse Collectors: These are smaller versions of the refuse collector, have a
capacity of 6 cu meters and can carry 3-4 tonnes of load.

4. Dumper: These are trucks fitted with a crane like facility which can lift filled dumper
bin and replace them after emptying. The average weight lifted by dumper is around
2.5 tonnes.

5. Tractor: These usually operate for short hand and have a capacity of 3-4 tonnes.

6. Loaders: These are special machines with a mechanical device to clear the bins and
load the wastes on the trucks.

7. Animal Drawn Cart: These are used in rural areas. It is least polluting and very
economical. These usually engaged to collect waste from narrow lanes and transport
it to transfer stations from where it carried by a larger vehicle.

42
Subhash Anand, Solid Waste Management, 136-137 (Mittal Publications: New Delhi, 1st Edn., 2010).
43
Ansari, J. H., “Solid Waste Management in Delhi- Need for Partnership Management”, 27th National
Congress Paper (19-22 September 1999).

132
4.7.5 Processing of Municipal Solid Wastes

Waste processing and treatment is the physical, chemical or biological conversion

of the waste for resource recovery, energy recovery and any other beneficial purposes.
These include composting, vermi-composting, incineration and gasification etc.44.
According to Municipal Solid Wastes (Management and Handling) Rules 2000 the
municipal authority shall adopt suitable technology or combination of such technologies
to make use of wastes so as to minimize burden on landfill45.

The treatment practices to be adopted by urban local bodies in India are:

1. Composting-Aerobic

a. Vermi Composting

b. Windrow Composting

2. Bio Methanation–Anaerobic

3. Refuse Derived Fuel (RDF)–Pelletisation

4. Waste to Energy methods-Power generation through Incineration

The composting is the preferred method for disposal / treatment for the bio-
degradable waste. However, there is another disposal method in the form of using it for
energy production through different technologies available as on now. The pelletisation
route has the advantage of safe disposal of garbage and a source of renewable energy. But
the technical feasibility of undertaking such an activity depends on many factors
including the quantity of biodegradable waste available and the additives which can be
permitted to be used etc. While selecting the technology for composting, it should be kept
in mind that the final product is going to be used as manure and therefore it should adhere
to the requirement supporting its use in production of food items because the manure is
going to be used for production of food grains / vegetables etc 46.

44
Subhash Anand, Solid Waste Management, 180 (Mittal Publications: New Delhi, 1st Edn., 2010).
45
Schedule – II of the Municipal Solid Wastes (Management and Handling) Rules 2000, available at:
http://www. moef.nic.in/legis/hsm/mswmhr.html, (visited on 12.09.2014).
46
Ready Reckoner, “Municipal Solid Waste Management for Urban Local Bodies”, Commissionerate of
Municipal Administration: Chennai, (November 2008), p. 28.

133
Composting

Composting is a natural biological process in which organic material is broken

down by the action of micro-organisms. Typical materials suitable for composting
include, green waste and putrescible wastes with pre sorting and screening to remove non
compostable, plus other enriched organic waste streams (sewage sludge, agricultural,
food processing wastes)47.

In the 2000 Municipal Solid Waste Management Rules, ‘Composting’ is defined

as a controlled process involving microbial decomposition of organic matter under
aerobic conditions. Biodegradable waste is converted to a soil-like substance (compost),
which is a valuable soil amendment and fertilizer. India has a well-established composting
community with a wealth of experience in composting. However, only a few municipalities
have adopted composting as a treatment option in their solid waste management strategy.
Many composting initiatives are not formally linked to the official system and, therefore,
struggle with organizational, financial and institutional problems48.

Vermi-Composting

Vermi-Composting is a bio oxidation and stabilization process of organic matter

that involves the joint action of earthworms and bio organisms and does not involve
thermophilic agent. In this process the organic waste gets breakdown and fragmented by
earthworms resulting in a stable non toxic material with good humus material that can be
used as a soil conditioner. The earthworms are in fact, used in this process as the agents
for turning fragmentation and aeration. In this process it is absolutely necessary to
segregate the solid waste. The earthworms require moist conditions and hence large
quantity of water is required in this process and no water logging is permitted.

This is the process by which decayed organic matter is eaten by a mix of bacteria,
fungi and bacteria inside the bodies of earth worms, to convert waste to a digested soil

47
Ready Reckoner, “Municipal Solid Waste Management for Urban Local Bodies”, Commissionerate of
Municipal Administration: Chennai, (November 2008), p. 28.
48
Da Zhu, P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving
Municipal Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 39
(The International Bank for Reconstruction and Development / The World Bank: Washington DC,
2008).

134
like excretion and Vermi-Castings full of microbes useful to farmers. Earthworms are not
pests like caterpillars and do not eat fresh food wastes. There are two stages in the
process of Vermi-Composting; Initial decomposition of the waste and later its conversion
by earthworms. Mixed waste cannot be used for Vermi-Composting as toxic substances
can kill the earthworms. Only segregated wastes or domestic food waste can be
composted through this process49.

Windrow Composting

Windrow composting is an established technology for dealing with green wastes,

where the material is piled in elongated rows and aerated through either turning of the
windrows or through air forced through the material. This may take place in buildings or
externally. In this process the waste is received and stacked in long windrows of 2to3m
wide and 1to 1.50m high. The dimensions would vary depending on the volume of waste
to be handled per day. The windrows can be treated with slurry substrate of bio enzymes
/effective microorganisms for de-odour and for achieving accelerated bioconversion of
organic matter in the waste. Due to exothermic reactions, the temperature of the windrow
reaches about 55 ºto 65º within 36 hours and kills the pathogens. It also accelerates the
fermentation. The moisture level of about 50% to 60% shall be maintained during the
process. After every 5 day’s interval, aeration is carried out by turning the windrows with
the help of any suitable mechanical equipment like front loader/by manually. As the
fermentation progresses, the organic biomass changes colour to dark humus like
substances and its volume is reduced to about 50%.The fermentation is completed within
five weeks. The well decomposed biomass is processed in separating, grading and sieving
machines. In the process, foul smell is eliminated at the initial stage and the pathogens
are killed by bio enzymes induced exothermic heat and the waste becomes free from
flies, mosquitoes and insect vectors50.

49
Ready Reckoner, “Municipal Solid Waste Management for Urban Local Bodies”, Commissionerate of
Municipal Administration: Chennai, (November 2008), p. 29.
50
Ready Reckoner, “Municipal Solid Waste Management for Urban Local Bodies”, Commissionerate of
Municipal Administration: Chennai, (November 2008), p. 30.

135
Bio Methanation

In this process, the organic fraction of wastes is segregated and fed into a closed
container (biogas digester) where, under anaerobic conditions, the organic wastes
undergo bio-degradation producing methane-rich biogas and effluent/ sludge. The biogas
can be utilized either for cooking/ heating applications, or through dual fuel or gas
engines or gas / steam turbines for generating motive power or electricity. The sludge
from anaerobic digestion, after stabilization, can be used as a soil conditioner, or even
sold as manure depending upon its composition, which is determined mainly by the
composition of the input waste51.

Refuse-Derived Fuel (RDF)- Pelletisation

Pelletisation is a physical process which brings about resource recovery from

waste. It consists of various steps like mechanical lifting of waste, Removal of non-
combustible and Recyclables fractions, drying of the combustible fraction, Size
reduction, Ingredient mixing and Production of fuel pellets52. The process of conversion
of garbage into fuel pellets involves primarily drying, separation of combustibles from
garbage, size reduction and pelletisation after mixing with binder and/or additives as
required. The municipal solid waste collected for disposal is tested for its moisture
content and when the moisture content is more than 35- 40%, it requires drying to
produce fuel pellets with reasonable heating values. The reduction in moisture can be
done artificially or by natural sun drying. Sun drying is preferred when adequate land is
readily available. However, during periods of heavy rainfall, alternate arrangements for
drying will have to be made. The moisture level of waste is brought down to around
35-40% by uniformly spreading it on an open, paved area and allowing it to be dried by
the Sun. The duration of sun drying varies from 1 to 2 days depending upon the garbage
quality. In the process of spreading the garbage, manual inspection is carried out to
remove large debris, tree cuttings, tyres etc., which are harmful to the downstream
process equipment.

51
Ready Reckoner, “Municipal Solid Waste Management for Urban Local Bodies”, Commissionerate of
Municipal Administration: Chennai, (November 2008), p. 34.
52
Subhash Anand, Solid Waste Management, 171 (Mittal Publications: New Delhi, 1st Edn., 2010).

136
 The non-combustible items are removed, separating glass and metals for
recycling. The combustible waste is shredded into a smaller, more uniform particle size
for burning. The RDF thus produced may be burnt in boilers on-site, or it may be shipped
to off-site boilers for energy conversion. If the RDF is to be used offsite, it is usually
dense into pellets through the process of pelletisation. Pelletisation involves segregation
of the incoming waste into high and low calorific value materials and shredding them
separately, to nearly uniform size. The different heaps of the shredded waste are then
mixed together in suitable proportion and then solidified to produce RDF pellets.
Additional advantage is that the pellets can be conveniently stored and transported53.

Waste to Energy methods-Power generation through Incineration

It is the process of direct burning of wastes in the presence of excess air (oxygen)
at the temperature of about 8000°C and above, liberating heat energy, inert gases and ash.
Net energy yield depends upon the density and composition of the waste; relative percentage
of moisture and inert materials, which add to the heat loss; ignition temperature; size and
shape of the constituents; design of the combustion system (fixed bed/ fluidized bed), etc.
In practice, about 65 to 80 % of the energy content of the organic matter can be recovered
as heat energy, which can be utilized either for direct thermal applications, or for
producing power via steam turbine generators (with typical conversion efficiency of
about 30%). The combustion temperatures of conventional incinerators fuelled only by
wastes are about 760° C in the furnace and in excess of 870°C in the secondary
combustion chamber. These temperatures are needed to avoid odour from incomplete
combustion but are insufficient to burn or even melt glass. To avoid the deficiencies of
conventional incinerators, some modern incinerators utilize higher temperatures of up to
1650˚C using supplementary fuel. These reduce waste volume by 97% and convert metal
and glass to ash. While incineration is extensively used as an important method of waste
disposal, it is associated with some polluting discharges, which are of environmental
concern, although in varying degrees of severity. These can fortunately be effectively

53
Ready Reckoner, “Municipal Solid Waste Management for Urban Local Bodies”, Commissionerate of
Municipal Administration: Chennai, (November 2008), p. 36.

137
controlled by installing suitable pollution control devices and by suitable furnace
construction and control of the combustion process54.

4.7.6. Disposal of Municipal Solid Wastes

Open dumping of waste can cause irreparable damage to the environment by

polluting land, water and air; adversely affecting human health; and lowering people’s
quality of life. The 2000 Municipal Solid Waste rules, therefore, prohibit open dumps and
require municipal authorities to safely dispose of solid waste in engineered landfills.
The rules further mandate treatment of the organic fraction of solid waste before final
disposal in the landfill sites. Thus, only rejected and degraded waste can be placed in
landfills. All cities and towns in India are, therefore, under an obligation to stop crude
dumping of waste at open dumping grounds and to instead identify suitable lands for the
construction of engineered landfills following the standard prescribed in Schedule III of
the rules. Schedule III provides guidelines for the basic landfill requirements for selection
and design. The following sections outline important guidelines 55.

Specification for Landfill Sites and Guidelines

Site Selection

a) In areas falling under the jurisdiction of “development authorities,” it is the

responsibility of those authorities to identify the landfill sites and to hand over the
sites to the concerned municipal authority for development, operation and maintenance.
Elsewhere, this responsibility lies with the concerned municipal authority.

b) Selection of landfill sites must be based on examination of environmental issues.

The Department of Urban Development of the State or the Union territory must coordinate
with the concerned organizations to obtain the necessary approvals and clearances.

c) Landfill sites must be planned and designed with proper documentation of a phased
construction plan as well as a closure plan.

54
Ready Reckoner, “Municipal Solid Waste Management for Urban Local Bodies”, Commissionerate of
Municipal Administration: Chennai, (November 2008), p. 37.
55
Da Zhu, P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 40 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

138
d) Landfill sites must be selected to make use of a nearby waste processing facility.
Otherwise, a waste processing facility must be planned as an integral part of the
landfill site.

e) Existing landfill sites that will continue to be used for more than five years must be
improved in accordance with the specifications that are given in Schedule III.

f) Biomedical waste must be disposed of in accordance with the Bio-Medical Waste

(Management and Handling) Rules 1998 and hazardous waste must be managed in
accordance with the Hazardous Wastes (Management, Handling and Transboundary
Movement) Rules 2008.

g) Landfill sites must be large enough to last for 20 to 25 years.

h) Landfill sites must be away from habitation clusters, forest areas, water bodies,
monuments, national parks and wetlands, as well as places of important cultural,
historical, or religious interest56.

i) A buffer zone of no development must be maintained around the landfill site and
must be incorporated in the town planning department’s land-use plans.

j) Landfill sites shall be away from airports, including airbases. Approval of airport or
airbase authorities must be obtained before setting up a landfill site if the site is to be
within 20 kilometres of an airport or airbase57.

In addition to those rules, the state pollution control boards are required to
prescribe the criteria for site selection in terms of distance to be maintained from
habitation, water bodies, highways, railways and so forth. Municipal authorities should
also adhere to those criteria.

Facilities at the Site

a) Landfill sites must be fenced or hedged and must be provided with a proper gate to
monitor incoming vehicles or other modes of transport.

56
Da Zhu, P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 41 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).
57
Schedule – III of the Municipal Solid Wastes (Management and Handling) Rules 2000, available at:
http://www. moef.nic.in/legis/hsm/mswmhr.html, (visited on 12.09.2014).

139
b) Landfill sites must be well protected to prevent entry of unauthorized persons and
stray animals.

c) Approach and other internal roads for free movement of vehicles and other machinery
must exist at the landfill site.

d) Landfill sites must have a waste inspection facility to monitor waste brought to the
landfill, an office facility for recordkeeping and a shelter for equipment and
machinery, including pollution-monitoring equipment.

e) A weigh bridge to measure the quantity of waste brought to the landfill, fire
protection equipment and other facilities should be provided as required.

f) Utilities such as drinking water and lighting arrangements for easy landfill operations
when carried out in night hours must be provided. If possible, bathing facilities for
workers should be provided.

g) Safety provisions, such as health inspection for landfill workers, must be periodically
made58.

Specifications for Land filling

The rules lay down detailed specifications for land filling, which should be
strictly adhered to. Waste subjected to land filling is expected to be compacted in thin
layers and covered immediately or at the end of each workday with at least 10 centimetres of
soil. After completion of landfill, a final cover must be designed to minimize infiltration
and erosion. The final cover must have a barrier soil layer followed by a drainage layer.
On top of the drainage layer, a vegetative layer is needed to support natural plant growth
and to minimize erosion. Moreover, directions have been given for pollution prevention
and water-quality monitoring, landfill closure and later care. The municipal authorities
should follow the rules carefully when constructing an engineered landfill 59.

58
Schedule – III of the Municipal Solid Wastes (Management and Handling) Rules 2000, available at:
http://www. moef.nic.in/legis/hsm/mswmhr.html, (visited on 12.09.2014).
59
Da Zhu, P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 41-42 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).

140
4.8. Role of Rag Pickers in the Solid Waste Management

Rag pickers constitute a segment of the people involved in the waste trade make a
living by collecting and selling recyclable materials out of municipal Solid Waste.
Rag pickers are known by different names like “waste pickers, garbage combers,
scavengers etc”. In Delhi they also called as khattewala. On the basis of work place, they
can be categorized into “waste pickers at market, waste pickers at street, waste pickers at
dustbins and waste pickers at landsite” 60.

Preliminarily there are three different kinds of waste pickers:

1. Those who carry a sack on their back and collect whatever has any resale value.
These waste pickers of street move in their respective localities and pick up waste
from streets, drains, waste bins, open waste collection points and land fill sites etc.

2. Those who use a tricycle and collect over 50 grams of waste per day.

3. Those who work for the waste dealers. These waste pickers are committed to sell
their daily collection to the waste dealers who employ them.

Rag pickers are quite often seen around the waste collection centers and dumping
sites, engaged in picking up recyclable items. The items which have been thrown by
generators, becomes the source of livelihood for waste pickers. In the absence of source
segregation, the waste pickers collect the recyclables from the garbage bins. They pick up
about 10-20% of waste generated. The most common waste item collected by them is
plastic. The quantity and kind of material collected depends upon the type of area in
which collection is done such as residential, commercial and industrial etc. On an average
an adult waste picker collect between 5-15 Kilograms of plastic and 10-15 kilograms of
paper and cardboard61.

Their activities reduce the transportation cost and land fill requirement. A survey
conducted by Central Pollution Control Board (CPCB) during 1996 in some of the cities
has revealed that rag pickers play a key role in the management of municipal solid waste.

60
Subhash Anand, Solid Waste Management, 231 (Mittal Publications: New Delhi, 1st Edn., 2010).
61
Martin J. Brunch et al. (eds), Proceedings of the Third International Conference on Environment and
Health, 451-464 (Department of Geography, University of Madras and Faculty of Environment
Studies, New York: Chennai 15-17 December 2003).

141
They work day and night on the garbage dump sites to collect the recyclable materials.
Some of the findings of the CPCB on rag pickers are following:

1. Rag pickers were quite often seen around waste receptacles engaged in picking up
waste materials of their use.

2. An excellent example of segregation of waste on dust bins is provided by rag pickers,

who make the living out of discarded materials.

3. Rag pickers amongst themselves have good understanding for area wise operation in
the city.

4. Rag picking by children is a matter of serious concern.

5. Each group of rag pickers takes specific item for segregation task.

6. After segregation of waste, rag pickers sell it to waste dealers 62.

Waste picking has a negative influence on the health of waste pickers. They are
exposed to infections and come on contact with hazardous wastes and bacterially infected
wastes. Possible health hazards include hand and leg injuries, intestinal and respiratory
infections, lower back pain and skin disorder etc.

4.9 Judicial Activism on Municipal Solid Waste Management

In India, solid waste management is the primary responsibility and duty of the
municipal authorities. State legislations and the local Acts that govern municipal
authorities include special provisions for collection, transport and disposal of waste. Most
of the State legislation does not cover the necessary technical or organizational details of
solid waste management.

In the absence of appropriate legislation or of any monitoring mechanism on the

performance of municipal authorities, the system of waste management has remained
severally deficient and outdated. At the disposal sites, municipal authorities dump
municipal wastes, human excreta from slum settlements, industrial waste from small

62
“National Institute of Science Technology and Development Studies”, Official News Letter: New
Delhi, Vol. 6, No. 1 (April 2004).

142
industrial establishments within the city and bio-medical waste without imposing any
restrictions, provoking serious problems of health and environmental degradation 63.

In Rampal and Ors. v. State of Rajasthan and Ors64 the petitioners are residents of
Mundara Mohalla, situated in the town of Mandal in Bhilwara District, there is a blind
lane and a common chowk in the centre, which is surrounded by the houses of the
petitioners and others. The petitioner’s grievance is that water of domestic use, including
dirty water from the houses of the Mohalla, as also rain water has collected in the chowk
and because there is no drain for the discharge of the accumulated water, there is growth
of moss and insects and there is possibility of spread of epidemics.

The petitioners have relied upon a letter written in this connection by the medical
and health officer, government hospital, Bhilwara, on June 18, 1979, to the executive
officer of the Municipal Board. Mandal inviting his attention to the fact that stagnant
water, which has collected in the common chowk of the Mimdara Mohalla, has become
the breeding place of mosquitoes and insects and may cause spread of diseases.
The medical and health officer in his aforesaid letter expressed the view that immediate steps
should be taken for making a permanent arrangement for the disposal of such water as has
collected in the chowk and which has caused a nuisance, for the residents of the area.

As the Municipal Board has not cared to take any action in the matter, the
petitioners have filed a writ of mandamus praying for a direction to the Municipal Board
for removal and discharge of filthy and dirty water and the construction of proper
drainage or sewers for the discharge of such water. Section 98 of the Rajasthan
Municipalities Act 1959 deals with the primary and secondary functions of the Municipal
Boards. Amongst the primary duties enumerated in Section 98 of the Act, it has been
provided that the Municipal Board should make reasonable provisions for cleaning public
streets, places and sewers and all spaces not being private property and removing noxious
vegetation and removing of public nuisances; removing filth, rubbish or other noxious
and offensive matter and constructing drains, sewers, drainage works etc. under sections

63
Da Zhu, P. U. Asnani, Chris Zurbrügg, Sebastian Anapolsky and Shyamala Mani, Improving Municipal
Solid Waste Management in India- A Sourcebook for Policy Makers and Practitioners, 11 (The
International Bank for Reconstruction and Development / The World Bank: Washington DC, 2008).
64
AIR 1981 Raj 121.

143
174 to 187, extensive powers have been given to the Municipal Boards for the purpose of
maintaining cleanliness within the municipal area by repairing the existing drains,
directing the construction of new drains and controlling the drainage system.
The Municipal Boards are thus primarily responsible for maintaining sanitation and for
taking proper steps for creating and maintaining healthy conditions within the municipal
area. The Municipal Board Mandal contended that it is not the duty of the Municipal
Board to remove or discharge the accumulated water and construct proper drainage
system for the discharge of water accumulated in the chowk in Mundara Mohalla. Hence
the Court directed the Municipal Board, Mandal to remove the water and fifth collected
in the chowk in Mundara Mohalla, Mandal by the construction of proper sewers and
drains, so as to remove the cause of possible nuisance in the locality, within a period of
three months.

In Municipal Council, Ratlam v. Vardhichand and Ors65 the residents of a locality

within the limits of Ratlam Municipality, tormented by stench and stink by open drains
and public excretions by nearby slum dwellers moved the sub-divisional magistrate under
Sec. 133 Cr.P.C to require the municipality to construct the drain pipe with the flow of
water to wash the filth and stop the stench towards the members of the public.
The municipality pleaded lack of funds as the chief cause of disability to carry out its duties.

The magistrate gave directions to the municipality to draft a plan within six
months for removing the nuisance. The High Court approved the order of the magistrate,
to which the municipality further appealed to the Supreme Court. The issue was whether
a court can compel a statutory body to carry out its duties to the community by
constructing sanitation facilities.

The Supreme Court through Justice Krishna Iyer upheld the order of High Court
and directed the municipality to take immediate action within its statutory powers to
construct sufficient number of public latrines, provide water supply and scavenging
services, to construct drains, cesspools and to provide basic amenities to the public.
The Court also accepted the use of Sec.133 Cr.P.C for removal of public nuisance.
A responsible municipal council constituted for the precise purpose of preserving public

65
AIR 1980 SC 1622.

144
health and providing better facility cannot run away from its principal duty by pleading
financial inability.

In L.K. Koolwal v. State of Rajasthan and Ors66 Mr. L. K. Koolwal has moved to
High Court in the matter of sanitation in Jaipur City. Numbers of affidavits have been
filed by the citizens of Jaipur relating to each of the locality referred to in the case to
show that the sanitation problem is acute in Jaipur which is hazardous to the life of the
citizens of Jaipur. Insanitation leads to a slow poisoning and adversely affects the life of
the citizen and invites the death at an earlier date than the natural death.

In this case the court held that it is the primary duty of the municipal council to
remove filth, rubbish, night-soil, odour or any other noxious or offensive matter.
The primary duties will have to be performed by the Municipal Board and there cannot
be any plea whether the funds are available or not; whether the staff is available or not.
It is for the municipality to see how to perform the primary duties and how to raise
resources for the performance of that duty. In the performance of primary duty no excuse
can be taken and can be directed also as it is primary, mandatory and obligatory duty to
perform the same.

In M.C. Mehta v. State of Orissa67 a writ of mandamus was filed to protect the
health of thousands of innocent people living in Cuttack and adjacent areas who were
suffering from pollution from sewage being caused by the municipal committee Cuttack
and the SCB Medical College Hospital, Cuttack. The main contention of the petitioner is
that the dumping of untreated waste water of the hospital and some other parts of the city
in the Taladanda Canal was creating health problems in the city. The State, on the other
hand contended that the central sewerage system had been installed in the hospital and
that there is no sewage flow into the Taladanda Canal as alleged. Further, it was asserted
that the State had not received any information relating to either pollution or of epidemic
of water borne diseases caused by contamination of the canal.

The Court reprimanded the authorities and directed the government to

immediately act on the matter. The court also recommended setting up of a committee to

66
AIR 1988 Raj 2.
67
AIR 1992 Ori 225.

145
take steps to prevent and control water pollution and to maintain wholesomeness of water
meant for human consumption amongst other things. A responsible municipal council
constituted for the precise purpose of preserving public health. Provision of proper
drainage system in working conditions cannot be avoided by pleading financial inability.

In B. L. Wadera v. Union of India ( popularly known as Delhi Garbage Case) 68,

the Supreme Court of India given a judgment touched garbage affairs of Delhi and issued
several directions to the local municipal authorities to perform up to satisfaction of
public, which all their statutory obligations. In Delhi Garbage Case, B. L. Wadera sought
directions to the Municipal Corporation of Delhi (MCD) and the New Delhi Municipal
Council (NDMC) to perform their statutory duties in particular the collection, removal
and disposal of garbage and other waste. The court observed that river Yamuna – the
main source of drinking water supply is the free dumping place for untreated sewage and
industrial waste. The rapid industrial development, urbanization and regular flow of
persons from rural to urban areas have made major contribution towards environmental
degradation but at the same time the authorities entrusted with the work of pollution
control cannot be permitted to sit back with folded hands on the pretext that they have no
financial or other means to control pollution and protect the environment. In its earlier
order dated December 16, 1994 the court had directed the MCD and Delhi Development
Authority (DDA) to place on record the list of all garbage dumping places and city
garbage collection centres. They were also asked to state what steps were being taken by
them to keep those places clean and tidy. The court further pointed that the collection and
disposal of garbage in the city of Delhi was causing serious problems. It was not for the
court to keep on monitoring such problems. The officers who were manning institutions
like MCD and NDMC must realize their responsibilities and show the end result.

After examining the relevant provisions of Delhi Municipal Corporation Act,

1957 (the Delhi Act) and the New Delhi Municipal Council Act 1994 (the New Delhi Act),
the court opined that the NCD and the NDMC were under a statutory obligation to
scavenge and clean the city of Delhi and that they had been wholly remiss in the
performance of their statutory duties. Non availability of funds, inadequacy or

68
(1996) 2 SCC 594.

146
inefficiency of the staff, insufficiency of machinery, etc., cannot be pleaded as a ground
for non-performance of their statutory obligations. In the light of the fact of the case,
court issued the following directions:

1. The experimental schemes placed by MCD and NDMC to distribute polythene bags
and door to door collection of garbage and its disposal were approved by the court.

2. Directions were issued to construct and install incinerators in all the government
administered hospitals/nursing homes, with 50 beds and above, preferably within nine
months.

3. The All India Institute of Medical Sciences, New Delhi was directed separately to
install sufficient number of incinerators, or an equally effective alternate, to dispose
of the hospital waste.

4. The MCD and NDMC were asked to issue notices to all the private hospitals/nursing
homes in Delhi to make their own arrangements for the disposal of their garbage and
hospital waste.

5. The Central Pollution Control Board (CPCB) and the Delhi Pollution Control
Committee (DPCC) were assigned the job to inspect the different areas of Delhi to
ascertain that the collection, transportation and disposal of garbage/waste is carried
out satisfactorily.

6. The Government of the National Capital Territory (NCT) of Delhi was directed to
appoint Municipal Magistrates for the trial of offences under the DMC Act and the
NDMC Act.

7. Doordarshan was asked to undertake a programme of educating the residents of Delhi

regarding their civic duties under the DMC Act and the NDMC Act.

8. The Ministry of Defence Production and Government of India was directed to have
the already ordered Tippers supplied to the MCD as expeditiously as possible and
preferably within three months.

9. The Development Commissioner and Government of NCT Delhi was directed to

handover two sites, near Badarpur on Jaitpur Pits and Mandi village near Jaunpur
Quiry Pits, to be used as Secured Land Filling (SLF) sites within three months.

147
10. Direction was issued to review and put into operation the compost plant at Okhla.
MCD was also asked to examine the construction of four additional compost plants as
recommended by Jag Mohan Committee.

11. The MCD was instructed not to use the filled up SLF’s for any other purpose except
forestry. MCD was directed to develop forests and gardens on all 12 such sites.

12. The MCD and NDMC were directed to construct or install additional garbage
collection centres in the form of dhalaos, trolley and steel bins within four months.

13. The directions were issued to the Union of India and NCT, Delhi Administration to
consider the request from MCD and NDMC for financial assistance, in a just and fair
manner.

14. As disposal of garbage and solid-waste by 'SLF' method may not be possible after
some time due to non-availability of sites, the NCT Delhi Administration and also the
MCD and NDMC were directed by the court to join hands and engage an expert body
like NEERI to find out alternate methods of garbage and solid waste disposal.

The question of solid waste disposal once again came before the court in Almitra
H. Patel v. Union of India69 and the court in its order constituted a committee to look in
to all aspects of urban solid waste management and in particular to the following areas:

1. Examine the existing practices and to suggest hygienic processing and waste disposal
practices and proven technologies on the basis of economic feasibility and safety
which the corporations or government may directly or indirectly adopt or sponsor.

2. Examine and suggest ways to improve conditions in the formal and informal sector
for promoting eco-friendly, sorting, collection, transportation, disposal, recycling and
reuse.

3. To review municipal bye-laws and the power of local bodies and regional planning
authorities and suggest necessary modifications to ensure effective budgeting,
financing, administration, monitoring and compliance.

69
(2000) 2 SCC 679.

148
4. Examine and formulate standards and regulations for management of urban solid
waste and set time-frame within which the authorities shall be bound to implement
the same.

The committee submitted its report before the court. During the proceedings of
the case the court came to know that the fourteen directions issued by it in B. L. Wadhera’s
Case have not been complied till date. The court opined that keeping Delhi clean was not
an easy task but it was not an impossible one, what required were initiative, dedication
and professional pride. The court pointed that domestic garbage and sewage were large
contributor of solid waste and the problem became more complex because of a large
number of inhabitants living in unauthorized colonies and slums, having no proper means
of dealing with the domestic effluents.

The effect of failure of the direction issued in Delhi Garbage Case was clearly
reflected in the judgment when the court accepted its limitations and observed: “we
believe it is not for this court to direct as to how the municipal authorities should carry
out their functions and resolve difficulties in regard to the management of solid waste.
The court, in fact, is ill-equipped to do so. Without doubt the government agencies
including the local authorities have all the powers of the State to take action and ensure
that the city remains clean. They have only to wake up and act. The court should, however,
direct that the local authorities, government and all statutory authorities must discharge their
statutory duties and obligations in keeping the city at least reasonably clean”.

The court passed further directions which were in addition to and not in
derogation of the orders passed by it in Delhi Garbage Case:

1. The Municipal Corporation of Delhi, the Cantonment Board and all concerned
officials were directed to ensure that the relevant provision of the DMC Act, 1957,
New Delhi Municipal Council Act, 1994 and the Cantonments Act, 1924 relating to
sanitation and public health prohibiting accumulation of any rubbish, filth, garbage or
other polluted obnoxious matters in any premises or prohibiting any person from
depositing the same in any street or public place shall be scrupulously complied.

2. The streets, public premises such as parks etc. shall be surface cleaned on daily basis,
including on Sundays and public holidays.

149
3. The MCD, NDMC and other statutory authorities were authorize to levy and recover
charges and costs from any person littering or violating provisions of the Acts, bye-
laws and regulations relating to sanitation and health, for violating the directions
being issued by the court.

4. The MCD and NDMC and other statutory authorities were directed to ensure proper
and scientific disposal of waste in a manner so as to sub serve the common good.

5. The court directed that sites for landfills be identified bearing in mind the
environmental considerations and the requirements of Delhi for the next twenty years
within a period of four weeks. The sites so identified shall be handed over to the
MCD or NDMC within two weeks of the identification, free from all encumbrances
and without MCD or the NDMC having to make any payment in respect thereof.

6. Union of India, Government of National Capital Territory of Delhi, MCD, NDMC

and other statutory authorities like DDA and Railways were directed to take appropriate
steps for preventing any fresh encroachment or unauthorized occupation of public
land for the purpose of dwelling resulting in creation of a slum. Further direction was
given to take appropriate steps to improve the sanitation in the existing slums.

7. The court further directed to identify and make available to the MCD and NDMC
within four weeks eight sites for setting up compost plants. Such sites shall be handed
over to the MCD/NDMC free of cost and free from all encumbrances within two
weeks of identification. MCD and NDMC were asked to take appropriate steps
thereafter to have the compost plants established or caused to be established and to be
in operation by 30th September, 2000.

8. Direction was issued by the court to regularly publish the names of concerned
Superintendents of Sanitation and such equivalent officers who are responsible for
cleaning Delhi, who can be approached for any complaint by the citizens of Delhi
together with their latest office and residential telephone numbers and addresses.

9. The Government of National Capital Territory of Delhi was directed to appoint

Magistrates within a period of six week for each board/Circle/Ward for ensuring

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 compliance of the provisions of the MCD and NDMC Acts and to try the offences
specified, in relation to littering and causing nuisance, sanitation and public health.

10. The court asked all the concerned authorities to file compliance reports of these
directions within eight weeks. The Central Pollution Control Board was also directed
to file within the same time an affidavit indicating as to what extent the directions
issued have been complied with.

In Suo Motu v. Ahmedabad Municipal Corpn.70 at Ahmedabad due to rapid and

enormous growth of the city and the areas on its periphery are facing with many
problems, but the serious and alarming problems are pertaining to public health, hygiene
and sanitation. The civic bodies including the Ahmedabad municipal corporation are found
hopelessly lacking in solving these problems due to various reasons. Their weaknesses and
shortcoming get completely exposed during the monsoon and the aftermath of the
monsoon. Within first week of the monsoon, the roads start getting flooded with water,
the storm-water drainages start overflowing, the open plots get water logged, the
un-disposed garbage heaps found on the road side start stinking. In all areas within the
city and also outside it and also in the areas near railway tracks which are under the
jurisdiction of the western railway un-disposed garbage get soaked in the water causing
grave problem to the public health.

The legal provisions which relate to the public health and hygiene and the duties
cast upon the civic officials to safeguard and take adequate care of them are stated in,
The Gujarat Municipalities Act, 1963, the Bombay Provincial Municipal Corporations
Act, 1949 and the Panchayats Act, 1993. Further, the Court appointed a committee for
submitting detailed report of the hygienic situation in the Ahmedabad city. Based upon
the above said legislations and the report of the committee, the Court found that though
the civic authorities have been entrusted with certain important duties and they are
adequately equipped with the power and the means for the efficient discharge of these
duties, they have miserably failed, mainly on account of lethargy and lack of effort on the
part of the work force. It also reveals that for one reason or the other person in-charge of

70
(2006) 2 GLR 1129.

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administration of these civic authorities have totally ignored such attitude of the
subordinates. Hence, the Court issued the following directions to the civic bodies:

i. Regular scavenging, collection of garbage to be done and maintained clean and

garbage free environment.

ii. Install litter boxes/containers at different points in adequate number.

iii. Prompt and efficient drainage to be maintained to prevent accumulation of water

during monsoon and to discharge domestic effluent.

iv. The civic bodies shall construct proper drainage net-work and to regularly carry
out its cleansing and de-silting operation, especially immediately prior to
commencement of the monsoon season to avoid its choking and the resultant
accumulation of water.

v. To provide public latrines, urinals and similar conveniences with modern facility
and to maintain them clean and in proper conditions.

vi. To evolve a proper cell for regularly scavenging the streets, removal and disposal
of garbage and solid waste and other obnoxious and polluted matters.

vii. To erect adequate number of garbage collection centres and to have adequate
number of pick up vans with adequate number of garbage collectors.

viii. To see that the solid waste and garbage are not thrown or littered outside the
collection centres.

The authorities also should educate the people well in time even by door-to-door
campaign during pre-monsoon period and also during the monsoon to prevent any
indifferent attitude of the people towards maintenance of cleanliness and unnecessary
water accumulation on private properties, which could provide ideal breeding places for
the mosquitoes generating diseases like dengue, malaria, etc. They should also give
adequate publicity on every means of media. The public authorities have to carry out all
these duties which have been prescribed in the Act, the Rules and the Bye-laws with all
earnestness and sincerity and in right spirit. They cannot avoid discharge of such duties
on the pretext that there are no adequate means available with them.

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 In Shelter Trust v. Union of India71 the petitioner prays for a Writ of Mandamus
directing the Kodaikanal municipality to stop the dumping of garbage in the
Seeradumkanal Village in Kodaikanal Taluk. According to the petitioner, the
Commissioner of the Kodaikanal municipality has been dumping mixed untreated
garbage consisting of wet market waste, house work glass, tins, plastics, papers and
carcasses etc., at a site in Seeradumkanal Village directly above the drinking water source
for Perumalmalai and Palani Town and the said site is also very close to the Tiger Shola
Reserve Forest.

He also contended that the presence of untreated mixed garbage including plastics
endanger the flora and fauna to the nearby forest areas and on account of plastics get
scattered all over the forest area, a number of wild and endangered animals have died in
the forest due to consumption of such plastics and on account of the dumping of
untreated wet garbage, lot of grey and silver biting flies get attracted to the site and these
flies then feed on wild animals causing their death. Therefore, according to the petitioner,
in public interest, safety and health, Commissioner of the Kodaikanal municipality has to
be stopped from dumping the garbage in Seeradumkanal Village in Kodaikanal.

The petitioner further contended that the site in question is unsuitable for disposal
of garbage and is a threat to the environment, if the Commissioner is permitted to dispose
of the garbage in the present location. According to him, there is clear violation of the
Municipal Solid Waste (Management & Handling) Rules, 2000 in all aspects.

On the other hand the Commissioner contended that the proposed site is
16 kilometres away from Kodaikanal town and 6 kilometres away from the old compost
yard and after reclamation and forming of roads, bridges, etc., the garbage of Kodaikanal
Municipality collected from Kodaikanal town are being dumped in the site. The mixed
garbage with plastic, glass, tins, etc., are being segregated first at the collection point itself
and carried to the dumping yard in lorries in separate compartments. It is the further
contention of the Commissioner that there is a ban for using plastics in Kodaikanal town with
effect from 16.06.2000 and anybody using plastics will be fined in accordance with the
Resolution No.2219 dated 04.06.2000 as approved by the municipal council of Kodaikanal.

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 The Commissioner submitted that the site in question was selected by following
the due procedure and in fact, to the public notice issued by the District Collector calling
for objections against the assignment of site to him for the purpose of locating the
garbage disposal yard, there was no objection from the public and all the entire
expenditure was incurred by the municipality only with a view to dispose of the garbage
without causing any sort of problem to the general public. Moreover the Commissioner
stated that the necessary clearance was granted by the Tamil Nadu Pollution Control
Board.

The Court found from the report filed by the Commissioner as well as the
Pollution Control Board, that the municipality is in the process of implementing the
various measures as suggested by the Pollution Control Board and the municipality itself
appears to have fixed an outer time limit for completion of various measures and
earmarked funds for the same. The success or failure of the scheme initiated by the
municipality could be decided only after the completion of the measures taken in
compliance with the direction of the Pollution Control Board and as such, it is too
premature to comment on the possible effect on the environment in case the garbage is
disposed in the present premises. Hence the Court dismissed the Writ petition.

In Sat Priya Mehamia Memorial Education Trust (Regd.) v. State of Haryana and
others72the facts of the case were, an area measuring 20 Bighas 19 Biswas was acquired
on the Jind Rohtak Road as early as in the year 1975 for dumping of municipal waste
from the municipal limits of Rohtak. The said site has ever since then been used as a
dumping site of municipal solid waste. The site which was at the time of its acquisition
outside the municipal limits of Rohtak was brought within the said limits in the year
1990. Nearly 20 years after the acquisition of the dumping site, the petitioner trust
purchased a large area measuring 25 acres at a short distance away from the dumping site
for construction of a school. The school came up in due course to which nearly 1000
students are said to have been admitted over the years. The dumping of municipal solid
waste at the site mentioned above is causing air pollution and is contrary to the Municipal
Solid Wastes (Management and Handling) Rules, 2000 framed under the Environment

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(Protection) Act, 1986. Since the dumping site is merely 200 meters away from the
school, the petitioner trust has filed the writ of prohibition restraining municipal council,
Rohtak from dumping the municipal solid waste at the said site. A mandamus directing
the municipal council to take immediate steps in the matter including steps by way of
shifting the municipal solid waste to a far flung, remote and uninhabited place, has also
been prayed for.

The petitioner contended that no facility for disposal of municipal solid waste
could be set up without the prior approval of the authorities in terms of Rule 6(2) of the
Municipal Solid Wastes (Management & Handling) Rules, 2000. It was contended that
although the disposal of the solid waste by landfill method was pre-existing as on the date
of promulgation of the said Rules, the same did not permit making of any improvement in
the method already in use by way of setting up of solid waste treatment plant.

On the other hand the respondents contended that the landfill method was one of
the modes of disposal of solid waste and the said facility having been set up 25 years
before the framing of the Rules could not be shut down just because someone had with
his eyes open purchased land in the vicinity of the facility and was finding the same to be
a source of nuisance to him or to his establishment. It was urged that paragraph No.5 of
Schedule III of the Rules, 2000, permitted improvement of an existing facility to bring
the same in accord with the specifications given in the said Schedule. Setting up of a
Solid Waste Treatment Plant at considerable expense of Rs. 19 Crores was nothing but an
improvement of the existing facility which was clearly permissible and against which the
petitioners could make no grievance.

The Court observed that Rule 6 of the Municipal Solid Wastes (Management &
Handling) Rules, 2000 fixes the responsibility of the Central and State Pollution Control
Boards and the Committees to monitor compliance with the standards regarding ground
water, ambient air etc., as specified in Schedules (II) (III) and (IV) of the said Rules.
It also provides for making of applications by the municipal authorities or the operator of
a facility for grant of authorization for setting up waste processing and disposal facility
including landfills, which applications have than to be examined after taking into
consideration the views of other agencies like the State Urban Development Department,

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the Town and Council Planning Department, Air Port or Air Base Authority, or the
Ground Water Board as the case may be. A conjoint reading of Rule 6 and Para No.5 of
Schedule III results, that for continued use of landfill sites, it is unnecessary for the
municipal authorities to apply to the Board or the Committee nor is it necessary for the
Board or the Committee to take views of other authorities or agencies mentioned in Rule
6 (2) of Rules, 2000. The landfill sites existing as on the date of framing of the Rules
have only to be improved in accordance with the specifications given in the Schedules.
There is consequently no prohibition for use of an existing landfill site by the municipal
authorities. Hence, the court dismissed the writ petition with costs.

In S. Nandakumar v. The Secretary to Government73 The petitioner is the

President of Kuthambakkam Panchayat, which is stated to be a model village and
nominated for the UN Habitat award and the recipient of commendation from the United
Nations. The Panchayat by name Kuthambakkam Panchayat, situated at Poonamallee
Taluk, Thiruvallur District consists of seven hamlets and agriculture is the main source of
livelihood for the villagers. There are about 1,195 families and more than 55% of them
are Dalits and landless labourers. Nearly 1000 cattle of the villagers are dependent on 100
acres of common grazing land in the village. These livestock also provide a substantial
source of livelihood for the villagers at Kuthambakkam. For many of these families the
cattle they possess is a major source of livelihood and being landless, they are entirely
dependent on the common grazing lands. In the absence of these grazing lands, cattle
cannot survive and the villagers would be left with no other economic sustenance.
The revenue records of Kuthambakkam Village shows that an extent of 99.61 acres of
land in Survey No.820/1C had been classified as grazing ground and the said land is vested
with the petitioner Panchayat as provided under Sections 132 and 134 of the Tamil Nadu
Panchayats Act. The said land which is the communal property of the villagers of
Kuthambakkam village is being administered by the petitioner for common benefit.
The village is situated less than 50 metres from Chembarabakkam Lake, which is a fresh
water lake and is one of the main sources for supply of drinking water to Chennai City
and its suburban areas. The entire Kuthambakkam and neighbouring area which consists
of vast tracts of agricultural land, is the main catchment area for the Chembarambakkam
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156
Lake. While the matters stood thus, the Municipalities of Ambattur, Maduravayal,
Tiruverkadu, Valasaravakkam, Poonamallee and Porur Town Panchayat appears to have
approached the Government with a proposal for establishing a Municipal Solid Waste
Generation Station. The local bodies were in need of adequate lands for establishing
common Integrated Solid Waste Management and sanitary land fill facility. The Collector
of Thiruvallur District identified the grazing land in Kuthambakkam village as the
suitable site for setting up the proposed project and it was intended for all these local
bodies. However before taking a decision by the Collector and the Government, no notice
was issued to the Village Panchayat. There is a prescribed procedure as contained under
Section 134 of the Tamil Nadu Panchayats Act and Rules 3 and 4 of the Tamil Nadu
Panchayats (Restriction and Control to Regulate the use of Porombokes in Ryotwari
Tracts) Rules, 2000, in the matter of taking over the land for any other specific purpose.
However, the said procedure was not followed by the District Collector. In fact, when the
petitioner and the other villagers came to know of the proposal through other sources,
they have promptly approached the authorities. The Panchayat also passed a resolution
against the proposal. In the meantime, the petitioner came to know that the Government
has passed an order as per G.O.Ms.No.78 dated 23 February, 2009 conveying the land in
favour of the local bodies.

On the other hand the learned Advocate General appearing on behalf of the
Government justified the action taken in public interest. According to him, before issuing
the order in G.O.Ms.No.78 dated 23 February, 2009, the objections submitted by the
village panchayat as well as the villagers were considered and a reference to that effect is
contained even in the impugned Government Order. According to the learned Advocate
General, everything depends upon the clearance to be given by the Environmental
Assessment Authority and the no objection certificate issued by the Pollution Control
Board is only tentative in nature. The learned Advocate General made a statement before
us that in case the Environmental Assessment Authority comes to a conclusion that the
subject site is not fit for establishing the Solid Waste Management Plant, the land would
be returned to the Kuthambakkam Panchayat.

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 Based on the contentions the Court issued the following directions:

i. The concerned panchayat and the municipalities are directed to approach the
Environmental Impact Assessment Authority with full particulars of the proposed
common Solid Waste Management Plant.

ii. The Environmental Impact Assessment Authority is directed to give a copy of the
application submitted by the municipalities and panchayat for granting prior
environmental clearance in the matter of establishing the solid waste management
Plant to the panchayat so as to enable the petitioner to submit their views or
objections in the matter.

iii. The Kuthambakkam Panchayat and the local affected persons should be given an
opportunity to offer their comments during the public hearing.

iv. The environmental and ecological aspect of the project should be evaluated by the
statutory authority before granting clearance.

v. In case the Environmental Impact Assessment Authority rejects the application for
prior environmental clearance, liberty is given to the Kuthambakkam Panchayat to
approach the Government for cancellation of the allotment to respondents 7 to 12, in
view of the statement made by the learned Advocate General.

In Gram Panchayat Totu (Majthai) & ors v. State of Himachal Pradesh & ors74 in
the year 1999, a Solid Bio-Waste Management Plant (hereinafter called as MSW, Plant)
was installed by Shimla Municipality (hereinafter called M.C. Shimla) at a place
commonly known as Darni-Ka-Bagicha, Lalpass, Shimla. By afflux of time, the
Township of Shimla grew all around the place consequently the MSW Plant became
virtually situated in the middle of the town. The plant, unfortunately did not work
satisfactorily, as a result of which, stench and foul smell emanated from the site and
Polluted the surroundings, consequently the residents of the area were affected adversely
due to the foul smell. The municipality, it appears had entrusted the management of the
plant to a private company which did not possess the necessary technical know how to

74
National Green Tribunal, Principal Bench, New Delhi, dated 11.10.2011 (visited on 06.04.2014),
available at: http://www.greentribunal.gov.in/judgment/2-2011(RA)_11Oct_final_order.pdf.

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run the plant, consequently the entire area was polluted and it caused nuisance to general
public at large.

In the year 2003, a Committee was constituted to shift the site of Solid Bio Waste
Management Plant from Darni-Ka-Bagicha to some other suitable place. The commissioner
of M.C., Shimla and other officers visited several places around Shimla and selected two
sites suitable for locating the MSW plant. After much deliberations, the Committee
selected the site near village Bharyal situated at Tara Devi - Totu Bye Pass for the said
purpose, and a proceeding was drawn up on 2nd September, 2003. In consonance of the
said decision, necessary steps were taken for obtaining allotment of lands and
permissions from different authorities concerned, as per the Municipal Solid Waste
(Management and Handling) Rules, 2000.

While matters stood thus, in the year 2009 unfortunately the MSW Plant which
was situated at Darni-Ka-Bagicha caught fire and the M.C. Shimla could not control the
same. The fire continued for more than 72 hours and created an alarming situation all
around. The obnoxious smell and smoke emanating from the dump site engulfed not only
the surrounding areas but also the entire town, posing immense health risks, like
respiratory ailments amongst the residents of the locality. It appears that the fumes and
smoke arising from the fire threatened the residential houses situated in the surrounding
areas and entered into the High Court premises, thereby causing disruptions in the day to
day work. The incident was reported in a number of newspapers including The Indian
Express and Dainik Bhaskar. The Hon’ble High Court of Himachal Pradesh on the basis
of newspaper reporting took suo-moto cognizance and registered CW PIL No.56 of 2009
and issued notices to M.C. Shimla, State Government and others.

After hearing the parties and taking note of the situation, the Hon’ble High Court
by order dated 22nd December, 2009, constituted a one man High Power Committee
consisting of the Principal Secretary (Power), Government of HP and directed to submit a
report. On 23rd December, 2009, the High Court observed as follows “We are conscious
of the fact that the present place of dumping of garbage is not suitable. It is on the by-
pass road and it has already played havoc with the environment and ecology of the area.
Consequently, we direct the Forest Department through Additional Chief Secretary

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(Forest), Divisional Commissioner, Shimla and District Magistrate, Shimla to provide
landfill site near the site where the new Bio-conversion plant has to be set up within a
period of four weeks from today positively. This peremptory direction has been issued to
protect the health of the entire town, which has been put to peril by the inept handing of
the garbage by the functionaries of the Municipal Corporation, Shimla. The functionaries
of the Himachal Pradesh Pollution Control Board shall render all assistance to the
municipal corporation, Shimla in getting the new site by allowing all the permissions
expeditiously. It shall be open to the municipal corporation, Shimla to dump garbage as
per the provisions of the Municipal Solid Wastes (Management and Handling) Rules,
2000 at the new landfill site after a period of one week of the handing over of the site by
the district authorities. It is made clear that no person shall cause any hindrance in
selecting and handing over the site of landfill and dumping of the garbage at the new site.
Any hindrance / impediment / obstruction caused to the works of the municipal
corporation, Shimla while dumping the garbage at the new landfill site shall amount to
contempt of the Court and the persons shall be dealt with sternly”.

The applicant made a submission before the NGT that there is fragrant violation
of the citing criteria prescribed in Schedule-III more particularly under Clause 8 and 10
of the said schedule. According to Respondents way back in the year 2003, it was felt that
the area i.e Darni-Ka–Bagichal, Lalpani, Shimla, where the solid waste management
plant was situated had become thickly populated, several residential colonies having been
set up in the vicinity by afflux of time. The M.C. Shimla, therefore, proposed to shift the
plant to a distance place. The committee set up for the purpose after visiting several sites
finally selected the village Bharyal as a suitable place and accordingly steps were taken
for allotment of Government land. Necessary applications were filed before competent
authorities for allotment of land and granting permission to convert the said land for non-
forestry purpose. After considering the suggestions, the Ministry of Environment and
Forests, Government of India granted necessary permission to divert the forest land for
the purpose of setting up of the Solid Waste Management Plant at the site in question.
The M.C. Shimla had also obtained NOC from the Himachal Pradesh State Pollution
Control Board (HPSPCB) as well as Airport Authority of India for the Bio-composting

160
plant only. However, necessary authorization for landfill site has not yet been given by
HPSPCB or others.

Therefore, the NGT disposed this original application upholding the decision to
set up the MSW Plant and Landfill site at Village Bharyal In Tara-Devi Totu Bye Pass
and direct the Project Proponent, municipal corporation Shimla to set up the said plant
only after following the mandatory requirement stipulated in Municipal Solid Waste
(Management and Handling) Rules, 2000 as well as after obtaining EC under the
provisions of EIA Notification, 2006 as amended in 2009 before commissioning of the
MSW facilities. The tribunal also directs the M.C. Shimla to plant at least two times of
the trees i.e. 219 x 2 and double the saplings i.e. 1055 x 2 of the same species which have
been felled by the project proponent to maintain ecological balance.

In Satpal Singh & ors. v. Municipal Council Gardhiwala & Ors75 The applicants
are inhabitants of Gardhiwala town. Admittedly, an open space used as “Hada Rori”
(place for disposal of the carcasses, hide, remains, etc. of dead animals) is situated
adjacent to the local grain market. There is no dispute about the fact that inhabitants of
Gardhiwala town used and are using, the said place for dumping of carcasses, hide and
remains of dead animals. The case put-forth by the applicants is that the carcasses of dead
animals spread over at the place and emit foul smell in the nearby area. The stray dogs
and scavenging birds loiter/hover around the remains of the dead animals, eat up some
parts of the bodies and also scatter bones of the dead animals around the place. The stray
dogs become furious, if passer-by goes near the place. There are some instances of dog
biting the passersby, including children. Thus, it causes nuisance to environment in the
locality. The municipal council failed to perform its obligation to clean the public place
by removing the remains of the dead animals. The Council totally failed to implement
MSW Rules.

With the result the pollution around the place of “Hada Rori” is enhanced and has
reached to the extent of intolerable level. Though, provisions under Section 154 and
Section 168 of the Punjab Municipality Act, 1911 cast duty on the municipal council to

75
National Green Tribunal, Principal Bench, New Delhi, dated 25.04.2013, (visited on 06.04.2014), available at:
http://www.greentribunal.gov.in/judgment/15-2013(THC)(App)_25April2013_final_order.pdf.

161
remove and dump the remains of dead animals to a proper place and ensure cleanliness in
the township, yet Municipal Council has failed to perform such a duty. The Respondents
also have failed to discharge their obligation. The Punjab Pollution Control Board is
required to monitor implementation of the MSW Rules. However, the Punjab Pollution
Control Board also committed dereliction in discharging such legal obligation. Though,
representations were made by the applicants to the Deputy Commissioner, yet the
Respondents did not pay heed to the requests for appropriate implementation of the MSW
Rules. The dumping ground (Hada Rori) ought to have been shifted to a proper place outside
the limits of the municipal council. The Applicants, therefore, filed the application before the
NGT seeking direction to the Respondents as indicated herein before.

The respondents argued that the MSW Rules are not applicable to the present
case. The disposal of dead animals will be governed by the Punjab Municipal Act, 1911.
They argued that the site of “Hada Rori” does not fall within the limits of municipal
council. They contended that due to non-availability of funds as well as non-availability
of alternative site, it is difficult to relocate the “Hada Rori”. Hence they sought dismissal
of the application.

The NGT found that the respondents are under legal obligation to ensure that
pollution free air is available to the residents of the locality near the site of dumping place
“Hada Rori”. The respondents cannot abdicate their legal responsibility on flimsy
grounds, like absence of fund or absence of land for relocation of “Hada Rori”. The
respondents have failed to implement Municipal Solid Wastes (Management and
Handling) Rules, 2000 and discharge their duties under the Punjab Municipal Act, 1911.
In the result, the NGT allows the application and direct the respondents as follows:

i. The respondents shall take immediate action to shift the dumping ground “Hada
Rori” to a suitable place outside the limits of Municipal Council and if necessary
by acquiring a suitable land, after negotiating with owner of such land and to
complete the shifting process within a period of six months.

ii. The Municipal Council shall construct a parapet wall around the place so selected
for “Hada Rori” with wire mesh affixed at least two (2) feet above on such

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 parapet wall, which shall be of five feet height, in order to avoid entry of stray
dogs in the “Hada Rori” after shifting of the dumping ground.

iii. The Municipal Council shall consult experts as well as the Punjab Pollution
Control Board in order to examine whether the dumping can be made by creating
ditch of appropriate depth. The dead animals, being biodegradable waste, could be
processed to convert them into manure by composting under the provisions of
MSW Rules (Schedule II)if it is found that the same will not cause any adverse
impact on the ground water level and will not cause contamination/pollution of
the ground water. The respondents shall make arrangements for processing of
wastes within a period of one year.

iv. The Punjab pollution control board shall closely monitor the progress on alternate
site selection and construction in “Hada Rori” and shall file affidavit on the
progress once in six months, in the Registry of National Green Tribunal.

In Invertis University & ors. v. Union of India & ors.76 the applicant is a
registered society under the Society Registration Act, 1860. This society is formed to
encourage safeguarding of the environment and other human values in the younger
generation and has been carrying on various activities at the school as well as other levels
in furtherance of plantation, water conservation, water harvesting, etc. As the applicant is
more particularly associated with the students and young generation, it has closely been
following the developments pertaining to the setting up of the MSWM at Village Razau
Paraspur, in Bareilly. They made various representations to the higher authorities, and
even raised a protest in March, 2012. Several village Pradhans signed a memorandum
against locating the project in the vicinity of Village Razau-Paraspur. The MSWM
project is very close to Invertis University, Maharaja Agrasen Institute of Management,
SG Hospital, a water body, other villages and even NH 24. All through, the Society has
opposed the establishment of the project at the site in question for various reasons and
having failed to get redressal of its grievances at various administrative or executive
levels, hence they approach the tribunal.

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available at: http://www.greentribunal.gov.in/judgment/992013(App)_18July2013_final_order.pdf.

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 After hearing both parties the court makes an order and direct:

a) immediate closure of the municipal solid waste management plant at Razau Paraspur,
Bareilly;

b) by a permanent prohibitory injunction, restraining Municipal Corporation Bareilly

from dumping any municipal waste at the site in question;

c) by a mandatory injunction, Municipal Corporation Bareilly to remove all the

municipal waste dumped at the site within four weeks;

d) the MSWM plant at Razau Paraspur, Bareilly, to be positively shifted to any

appropriate site within the territorial area of the municipality earmarked in the Master
Plan-2021 of Bareilly, for that purpose in consonance with MSW Rules, 2000.

e) Till the above is carried out, municipal corporation Bareilly may continue to dump
Municipal Solid Waste at the existing Solid Waste dumping grounds other than the
site in question for which Uttar Pradesh Pollution Control Board should provide clear
guidelines for site preparation, dumping, compaction, soil layering, disinfectant spray
etc. forthwith.

f) The site in question should be restored and developed as per master plan 2021.

4.10. Conclusion

India currently is facing a municipal solid waste dilemma, for which all elements
of the society are responsible. The community sensitization and public awareness is low.
There is no system of segregation of organic, inorganic and recyclable waste at household
level. There is an inadequate legal framework existing in the country to address
Municipal Solid Waste Management. What more is lacking is its implementation. In spite
of a stringent legislation in place, open dumping is the most wide spread form of waste
disposal. The possible reasons for poor implementation could be a combination of social,
technical, institutional and financial issues. Public awareness, political will and public
participation are essential for the successful implementation of the legal provisions

The informal policy of encouraging the public to separate MSW and market it
directly to the informal network appears to be a better option. The involvement of people
and private sector through NGOs could improve the efficiency of MSWM. Public

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awareness should be created among masses to inculcate the health hazards of the wastes.
Littering of MSW should be prohibited in cities, towns and urban areas notified by the
state government.

Moreover, house-to-house collection of MSW should be organized through

methods like collection on regular pre-informed timing and scheduling. The collection
bins must be appropriately designed with features like metallic containers with lids and to
have a large enough capacity to accommodate 20% more than the expected waste
generation in the area, with a design for mechanical loading and un-loading, placement at
appropriate locations, etc. Municipal authorities should maintain the storage facilities in
such a manner that they do not create unhygienic and unsanitary conditions. Proper
maintenance of the MSW transportation vehicles must be conducted and the Dumper
Placer should replace the old transportation vehicles in a phased manner.

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 CHAPTER – VII

HAZARDOUS AND SOLID WASTES MANAGEMENT LAWS

IN DEVELOPED AND DEVELOPING COUNTRIES –
A COMPARATIVE ANALYSIS

7.1 Introduction

A comparative analysis on hazardous and solid waste management laws in

developed and developing countries gives a better knowledge to understand our legal
system. It is often quoted that Aristotle collected more than 150 city state constitutions in
the 4th century BC for devising a model constitution for Greece. Therefore, the method of
comparative law for understanding and improving law dates back to the ancient times.
Zweigert and Kotz1 have defined the subject of comparative law as “an intellectual
activity with law as its object and comparison as its process”. The basic methodological
principle of all comparative law is that of functionality. Incomparable cannot usually be
compared and in law the only things which are comparable are those which fulfil the
same function.

There are three main stages involved in the process of comparison which are the
descriptive phase, the identification phase, and the explanatory phase. The descriptive
phase includes description of norms, concepts, and institutions, the identification phase
includes identification of differences and similarities of the systems and the explanatory
phase identifies probable transplantation of ideas, law and institution. This approach
seems quite useful in the present study.

7.2 Environmental Protection in Developed Countries

7.2.1 United Kingdom (U.K)

Constitution and Environment: The Indian constitution is amongst the few in

the world that contains specific provisions on environmental protection. The directive
principles of state policy and the fundamental duties chapters explicitly enunciate the

1
Zweigert Konrad and Kotz Hein, Introduction to Comparative Law: Volume I-The Framework 2
(Oxford: Clarendon Press, 1987).

260
national commitment to protect and improve the environment. Judicial interpretation has
strengthened this constitutional mandate. In the case of Tarun Bharat Sangh Alwar v.
Union of India2 , the Supreme Court had ruled that 'the issues of environment must and
shall receive the highest attention from this court'.

Under the Indian constitution Article 48-A says 'the State shall endeavor to
protect and improve the environment and to safeguard the forests and wild life of the
country. Article 51-A (g) in a new chapter entitled 'Fundamental Duties', imposes a
similar responsibility on every citizen to protect and improve the natural environment
including forests, lakes, rivers and wild life and to have compassion for living creatures.
Although non-enforceable by a court, the directive principles are increasingly being cited
by judges as complementary to the fundamental rights. In several environmental cases,
the courts have been guided by the language of the Article 48-A. An instance is the case
of M.C. Mehta v. Union of India3.

Fundamental rights under the constitution have served a quick means of relief to
people in cases of the environment pollution. Right to life and personal liberty guaranteed
under Article 21 has been interpreted by the Supreme Court to also include right to a
wholesome environment. The Supreme Court and the High Court’s under Articles 32 and
226 of the constitution have expanded the scope of providing relief in cases relating to
environmental pollution and resource degradation.

UK's unwritten constitution does not provide any express reference to the
environmental protection though common law rule for the same has been in existence for
long. But the European Community (EC) law has filled up the constitutional gap.
The Community's environmental policy began with recognition at the Paris Summit in
1972 of the fact that economic expansion is not an end in itself but a means to obtaining
an improvement in the quality of life. However, no Treaty provision provided expressly
for the adoption of legislation to protect the environment. The gap was filled by the
general powers to legislate contained in EC Article 94 (ex Article 100) and EC Article
308 (ex Article 235) until the adoption of Single European Act (SEA), which inserted a

2
1993 SCR (3)21.
3
AIR 1988 SC 1037.

261
new title into the EC Treaty concerned with the environment. Finally, the Amsterdam the
Single Treaty amended EC Article 2 so as to include the promotion of a high level of
protection and improvement of the quality of the environment as one of the tasks of the
community4.

There are many ways in which EC can play role in shaping the British environmental
law and policy. Some pieces of EC legislation lay down rules and standards that are
directly enforceable in member states without any need for further implementation.
In these cases, EC law is British Law. Other pieces of EC legislation are addressed to
member states and require changes in British law or administrative practice. This is
normally the situation in relation to environmental legislation. The EC has its own
environmental policy in addition to having environmental laws. This exerts influence on
British attitude to policy, laws and enforcement. And economic policies of EC have a
profound effect on the direction of both EC and domestic environmental law5.

The EC is also signatory to a number of international treaties. Therefore, all member

states are duty bound to implement such agreements in their respective countries. The EC
has following principles on the environment:

i. To preserve, protect and improve the quality of environment.

ii. To contribute to the protection of the health of individuals.

iii. To ensure a prudent and rational utilization of natural resources.

iv. To promote at international level, measures to deal with regional or worldwide

environmental problems.

The EC lays emphasis on attending problem of pollution in air, water, land and
issues relating to natural resource, conservation and access to information etc.
The European Environment Agency (EEA) came into being in 1993 as a legal entity.

4
KPE Lasok and D Lasok, Law and Institutions of the European Union, 782- 783 (Butterworths:
London, Seventh Edn., 2001).
5
Simon Ball and Stuart Bell, Environmental Law: The Law and Policy Relating to the Protection of the
Environment, 49 (Universal Law Publishing Co. Pvt. Ltd.,: Delhi, 1996).

262
Environmental Legislations in India and U.K.

India did not have separate legislation on various aspects of the environment,
except forests, until the Stockholm Conference of 1972. In contrast, the environmental laws
in the UK have been in existence since the enactment of the Alkali Act 1863. Now India and
the UK have in place appropriate legislative measures to protect the environment.

The main points emerging from the comparative account of the environmental
laws are efficacy, punishment, nature and problem of wastes.

Efficacy of the Environmental Laws

Britain was the first country to industrialize so it was also the first country to
address the environmental problems both at the level of legislation and institutions.
The UK has been prudent in quickly reversing the trend of environmental degradations
by systematic efforts both at the level of evolving policies and legislation. India is now
facing environmental problems and resource degradation on a massive scale. Indian
environmental laws are not proving effective and on a number of occasions enforcement
has been induced by the higher judiciary namely the Supreme Court and the High Courts.
It is high time that India learns from the experience of the UK in redesigning the
environmental laws for effective control of the environmental problems.

Public-spirited citizens under Article 32 of Indian Constitution filed most of the

leading cases in India on air and water pollution. Legislative frameworks on air and water
have not been invoked by regulating agencies to the desired extent. In an affidavit, the
CPCB even went to the extent of saying that it is mostly busy with administrative matters
so the Central Government should notify authority under the EPA 1986 to deal with
pollution problems. As a result, more imaginative and interpretative case law under the
Air Act and Water Act have not grown in India.

On the other hand the UK has benefited from case law and legislation dating back
to 1860s when the Salmon Fisheries Act 1861 was enacted. Later enactments like the
Rivers Pollution Act 1876, the Public Health Act 1875, the Rivers Pollution Prevention
Act 1961, the Control of pollution Act 1974, and the legislation enacted after 1990 have
only added to that. Environmental laws in India need to be used more by the enforcement
agencies than public-spirited citizens performing that function.

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Nature of the Environmental Laws

A perusal of the Air (Prevention and Control of Pollution) Act 1981 reveals that it
is mostly concerned with the administrative details of composition of the State Pollution
Control Boards, their powers and functions. While the Clean Air Act 1993 in the UK
actually concentrates on operational aspects of pollution and the mechanisms of control.
It even addresses issues, which are related to other Acts namely the EPA 1990 insofar as
air pollution control is concerned. Indian environmental regime relies excessively on
delegated legislation and the Government does not issue guidance notes for the help of
the staff and the related public. In the absence of such notes the enforcement officials are
mostly in dark about the course of action to be taken in many events. In the UK, such
guidance notes in fact supplement the statutes and add to the efficacy of the related laws.

Air Pollution Laws

The Indian Air Act 1981 draws its inspiration from the Stockholm Conference.
While the UK’s Clean Air Act 1993 is the culmination of a large number of legislation
starting from the Public Health Act of 1875 and 1936 and the Public Health (Smoke
Abatement) Act 1926. This Act successfully improved the air environment of the UK as
borne out by the White Paper on the Environment 'This Common Inheritance 1990'.
The situation in India is that most of the leading cases of air pollution, (for example the
Taj Mahal case) were on article 32 of the constitution rather than the Air Act.

Problem of Waste

The Environmental Protection Act (EPA) 1990 in the UK formally established a

waste management regime and a statutory duty of care. But after the enactment of the
Environment Act 1995, a shift from waste disposal to waste management has taken place.
The Environment Agency has the necessary power to issue waste management licenses.
The Agency can revoke a license where it appears to it that the holder of the license has
ceased to be fit and proper person or the continuation of the activity would cause harm to
the environment or human health. Under the provision of the Special Waste Regulations
1996 in England the movement of 'special waste' from the waste producer's premises has
to be pre-notified to the agency. This provides an opportunity for the Environment

264
Agency to check if the suggested disposal plant is suitable under its site license
conditions to take in the waste load and to avoid consignments of special wastes from
disappearing into unlicensed sites6.

The EPA 1990 also establishes a regime of duty of care. This is very much a
forward looking feature in the legislation for the simple reason that impact of waste on
environment is significant.

Under sections 3, 6 and 25 of the Indian Environmental (Protection) Act 1986, the
Government of India has issued much delegated legislation. Mention may be made of the
Municipal Solid Wastes Rules 2000, the Bio-Medical Wastes Rules 1998, Hazardous
wastes Rules 2008, E-Waste Rules 2011 and many other such notifications on other areas of
human activity having a bearing on the environment. In the UK waste management is being
addressed through primary legislation, secondary legislation and tertiary legislations.

Problem of Water Pollution

Control of pollution of water in the UK is addressed under the Water Resources

Act (WRA) 1991. There is no overall statutory national strategy as found in the air
quality and waste management sector. However, the Department of the Environment in
England has started the process. Offences under the Water (Prevention and Control of
Pollution) Act 1974 in India have been given under section 24. This relates to causing
pollution in any stream, or well or sewer or on land. The term “stream” has been defined
to include river, watercourse, inland water, sub-terrain water or sea or tidal waters.
On comparison of the section 104 of the WRA 19917 (defining controlled waters) with
section 2(j) of the Indian Water Act 19748, it is found that the former is more
comprehensive to address incidents of pollution.

Forestry Laws

Government of India has still not succeeded in bringing a modern forestry Act
despite having announced a progressive forest policy in 1988. Many sections of the

6
Bettina Lange, “National Environmental Regulation: A Case Study of Waste Management in England
and Germany”, Journal of Environmental Law, Vol. 11 No.1, (1999) p. 69.
7
Available at: http://www.legislation.gov.uk/ukpga/1991/57/section/104, (visited on 27.11.2014).
8
Available at: http://www.moef.nic.in/legis/water/wat1c1.html, (visited on 27.11.2014).

265
Indian Forest Act 1927 are in contradictions with some acts namely the Forest (conservation)
Act 1980. The Forest Act of 1927 does not reflect principles of sustainable forest
management even by amendments. The position in the UK is a lot more progressive. The
Forestry Act 1967 is supposed to promote sustainable forestry. The Forestry Commission
was brought under a duty in 1985 to endeavour to achieve a reasonable balance between
the development of afforestation, the management of forests and the production of timber
and the conservation and enhancement of natural beauty and conservation of flora, fauna
and geological and physiographical features of special interest. Further, the UK's Biodiversity
Action Plan takes conservation aspects much ahead of India9. There is an urgent need to
restructure the Indian Forest Act 1927 in tune with the Forest Policy of 1988.

Punishment

Most of the environmental laws except the EPA 1986 in India prescribe only
small fines while in the UK it is up to £20,000 in cases of serious violations. This is a
draconian punishment10.

The Enforcement machinery in India and U.K.

The Union Ministry of Environment and Forests (MoEF), constituted in 1985, is

headed by a Union Minister who is assisted by a Secretary to the Government of India
and a Director General of Forests. The MoEF is the nodal agency at the central level for
planning, promoting and coordinating environmental programmes in addition to policy
formulation for the environment, forestry and wildlife sectors. The MoEF is responsible
for formulating legislation in the above areas for sound environmental management and
pollution abatement. The MoEF is assisted by six regional offices located in the country.
Among many autonomous institutions under the MoEF, the Central Pollution Control
Board (CPCB) is important. This discharges executive and advisory functions.

9
T. Colin Reid, “The Changing Pattern of Environmental Regulation: British Forestry and the
Environmental Agenda”, Journal of Environmental Law, Vol. 9 No.1 (1997) p.23-42.
10
Govind Narayan Sinha, A Comparative Study of the Environmental Laws of India and the UK with
Special Reference to their Enforcement, A dissertation submitted to The University of Birmingham for
the degree of master of laws on August 2003, available at University of Birmingham Research
Archive, e-theses repository, p. 121.

266
 The State’s Department of Environment and Forests perform similar executive
functions at the state level as MoEF does at the Centre. The State Pollution Control
Boards (SPCB) in various states likewise performs executive and advisory functions.

In U.K. the power to lay down policy and rules in environmental matters lies with
the central government through the Department of the Environment, Food and Rural
Affairs (DEFRA). However, other departments of the Government also play an important
part in laying down policy in environmental matters. Government departments such as
the Department of Trade and Industry (in relation to energy) and the Treasury (in relation
to economic instruments) play a significant role in environmental matters. In addition to
the above, there are bodies in existence as part of the 'Greening Government' initiative.
Mention may be made of the House of Commons Environmental Audit Committee, the
Cabinet Committee on the Environment, the Green Ministers Committee etc. Besides
these, the Parliamentary Select Committee and the Royal Commission on Environmental
Pollution (RCEP) play significant part in shaping environmental law and policy in the
country. Because of the framework nature of much environmental legislation, the
Secretary of State has wide legislative and quasi-legislative powers. This power has been
conferred on the Secretary of State for not only updating the law but also to comply with
the EC requirements. However, day-to-day control of the environmental matters in
England and Wales lies with the Environment Agency (EA).

Judiciary and Environmental Protection

The Indian Supreme Court has ruled in a number of cases that right to life includes
right to a healthful environment. In the UK, now the courts are also deciding environmental
matters brought before them not only under the specific environmental laws but also the
Human Rights Act 1998. Generally it can be said that 'degraded physical environments
contribute directly to infringements of the human rights to life, health and the livelihood, acts
leading to environmental degradation may constitute an immediate violation of
internationally recognized human rights'11. "Courts then are institutions already engaged in
the task of environmental management; they have a considerable history in so doing".

11
Boyle Alan and Anderson Michael, Human Rights Approaches to Environmental Protection, 3 (Oxford
University Press: Clarendon Press, 1998).

267
 Close linkage between human rights and the environment has been recognized
internationally with the publication of the final report of the 'UN Sub-Commission on
Human Rights and the Environment' in 1994. The European Convention of Human
Rights (ECHR) and the Human Rights Act 1998 would therefore increasingly play vital
role in environmental cases brought before domestic courts in the UK, while the Indian
Supreme Court and the High Courts are already on a chartered path of judicial activism in
correlating environmental protection and human rights.

India's higher judiciary has invoked their writ jurisdictions and have expanded the
scope of public interest litigation in their attempt to improve compliance with the
environmental laws as well as to achieve the constitutional mandate relating to
environmental protection and fundamental rights.

Both India and the UK have almost similar judicial systems, laws and procedures
what Zweigert and Kotz (1987) calls functionality. In comparing two legal systems the
laws should perform the same function. This is the broad meaning of functionality12.

The remedy of tort as a measure of environmental protection has not developed or

been used in India on the scale as used in England. However, India being one of the main
common law countries and its judicial and legal system founded on English system, tort
has been used to provide, a clean and healthful environment.

The inalienable common law right of every person to a clean environment was
traced by the Supreme Court in Vellore Citizens welfare Forum v. Union of India13 by
quoting from the Blackstone's Commentaries on English Law of Nuisance published in
1876: "...since the Indian legal system was founded on English common law, the right to
a pollution free environment was a part of the basic jurisprudence of the land"14.

12
Zweigert Konrad and Kotz Hein, Introduction to Comparative Law: Volume I-The Framework, 2
(Clarendon Press, 1987).
13
AIR 1996 SC 2715.
14
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India: Cases, Materials and
Statutes, 88 (Oxford University Press: New Delhi, 2nd Edn., 2001).

268
 Common forms of tort developed in India for environmental protection are nuisance,
negligence and strict liability. But the Supreme Court of India has added a new class of tort
based on the principle of 'absolute liability' following the Bhopal gas tragedy15.

Probably more than any other jurisdiction on earth, the Republic of India has
fostered an extensive and innovative jurisprudence on environmental rights. This has led
to the growth of public interest litigation in India sometimes also called 'social action'
litigation. The Indian Supreme Court and the High Courts have been at the forefront of
evolving this rights based approach to the environmental protection. The courts in the UK
have favoured compliance with relevant environmental laws rather than developing social
action litigation. The UK judiciary also does not favour judicial activism, as the social
divide in the UK is not as wide as in India giving less scope to judges to favour public
interest cases.

The position in the UK with regard to the public interest litigation is different.
Litigation to protect the environment is minimal because discretionary power is broad
and largely non-justifiable and the obstacles to citizens to take developers or polluters to
court are substantial. Probably the greatest disincentive to an environmental group in a
public interest case is the question of payment of costs. However, recent trend in English
courts is that costs are not awarded if applicant had acted in public interest. In NZ Maori
Council v. AG of New Zealand16 the Privy Council advised that no order of costs should
be made against the applicants which had brought the case in public interest. Likewise in
R v. Secretary of State for Environment, ex parte Greenpeace Ltd17, no order to costs was
made as the applicant brought the case in the public interest. Costs will cease to be
disincentive only if the claimant knows, before the litigation begins, that it will not be
liable to pay the winners the costs. But English courts are not keen on making such
pre-emptive costs orders. Another reason for the PIL not growing in the UK on the Indian
scale is that the society does not have very strong polarisations in terms of wealth,
position and power. This gives little scope to the judiciary to become activist.

15
M.C.Mehta v. Union of India AIR 1987 SC 1086.
16
(PC) (1995) 1 WLR 1176.
17
(1994) Env. LR401.

269
 The Supreme Court and the High Courts of India have evolved rights based
approach in public interest cases relating to the environment and in the process have
developed a novel environmental jurisprudence. Within the UK, the traditional system of
environmental regulation has not favoured growth of this liberal attitude by the judiciary.
However, enactment of statutes namely the Human Rights Act, 1998, the Freedom of
Information Act, the devolution in governance and a move towards a more formal and
participative style of the environmental regulation are clear signs of development of a system
more conducive to the growth of rights based approach by the judiciary in the UK.

7.2.2 United States of America (USA)

With congressional approval, the Nixon Administration established the Environmental

Protection Agency (EPA) in 1970 under an executive branch reorganization plan, which
consolidated numerous federal pollution control responsibilities that had been divided
among several federal agencies. EPA’s responsibilities grew over time as Congress
enacted an increasing number of environmental statutes and major amendments to these
statutes. EPA’s primary responsibilities have evolved to include the regulation of air
quality, water quality and chemicals in commerce; the development of regulatory criteria
for the management and disposal of solid and hazardous wastes; and the cleanup of
environmental contamination. The implementation and enforcement of many of these
federal authorities is delegated to the states. EPA also provides financial assistance to
states and local governments to aid them in administering pollution control programs and
in complying with certain federal environmental requirements. Several federal statutes
provide the legal authority for EPA’s programs and activities.

The Clean Air Act 1955 (CAA) authorizes EPA to set mobile source limits,
ambient air quality standards, hazardous air pollutant emission standards, standards for
new pollution sources and significant deterioration requirements; to identify areas that do not
attain federal ambient air quality standards set under the Act; to administer a cap-and-trade
program to reduce acid rain; and to phase out substances that deplete the Earth’s
stratospheric ozone layer18.

18
Available at: http://fas.org/sgp/crs/misc/RL30798.pdf (visited on 16.11.2014).

270
 The Clean Water Act 1948 (CWA) authorizes the regulation and enforcement of
requirements that govern waste discharges into U.S. waters and financial assistance for
waste water treatment plant construction and improvements. Growing public awareness
and concern for controlling water pollution led to enactment of the Federal Water
Pollution Control Act Amendments of 1972. As amended in 1977, this law became
commonly known as the Clean Water Act. The Act established the basic structure f or
regulating discharges of pollutants into the waters of the United States. It gave EPA the
authority to implement pollution control programs such as setting waste water standards
for industry. The Clean Water Act also continued requirements to set water quality
standards for all contaminants in surface waters. The Act made it unlawful for any person
to discharge any pollutant from a point source into navigable waters, unless a permit was
obtained under its provisions. It also funded the construction of sewage treatment plants
under the construction grants program and recognized the need for planning to address
the critical problems posed by nonpoint source pollution. Subsequent enactments
modified some of the earlier Clean Water Act provisions. Revisions in 1981 streamlined
the municipal construction grants process, improving the capabilities of treatment plants
built under the program. Changes in 1987 phased out the construction grants program,
replacing it with the State Water Pollution Control Revolving Fund, more commonly
known as the Clean Water State Revolving Fund. This new funding strategy addressed
water quality needs by building on EPA-state partnership

The Ocean Dumping Act 1972 focuses on the regulation of the intentional
disposal of materials into ocean waters and authorizes related research.

The Safe Drinking Water Act 1974 (SDWA) authorizes EPA to establish primary
drinking water standards, regulate underground injection disposal practices and administer a
groundwater control program. The Act authorizes EPA to establish minimum standards to
protect tap water and requires all owners or operators of public water systems to comply
with these primary (health-related) standards. The 1996 amendments to SDWA require
that EPA consider a detailed risk and cost assessment and best available peer-reviewed
science, when developing these standards. State governments, which can be approved to
implement these rules for EPA, also encourage attainment of secondary standards

271
(nuisance-related). Under the Act, EPA also establishes minimum standards for state
programs to protect underground sources of drinking water from endangerment by
underground injection of fluids.

The Solid Waste Disposal Act 1965 and Resource Conservation and Recovery
Act 1976 (RCRA) govern the regulation of solid and hazardous wastes and corrective
actions to address improper waste management practices 19. The RCRA gave EPA the
authority to control hazardous waste from the "cradle-to-grave." This includes the
generation, transportation, treatment, storage and disposal of hazardous waste. RCRA
also set forth a framework for the management of non-hazardous wastes. The 1986
amendments to RCRA enabled EPA to address environmental problems that could result
from underground tanks storing petroleum and other hazardous substances. RCRA
focuses only on active and future facilities and does not address abandoned or historical
sites. The Federal Hazardous and Solid Waste Amendments 1984 required phasing out
land disposal of hazardous waste. Some of the other mandates of this strict law include
increased enforcement authority for EPA, more stringent hazardous waste management
standards and a comprehensive underground storage tank program.

The Comprehensive Environmental Response, Compensation and Liability Act 1980

(CERCLA) commonly known as Superfund Act focuses on the cleanup of contamination
resulting from the past release of hazardous substances, but excludes petroleum which
primarily is covered under the Oil Pollution Act 1990. This law created a tax on the
chemical and petroleum industries and provided broad Federal authority to respond
directly to releases or threatened releases of hazardous substances that may endanger
public health or the environment. Over five years, $1.6 billion was collected and the tax
went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites.
Amendments to the Solid Waste Disposal Act specifically address the cleanup of
petroleum leaked from underground storage tanks that are not covered under CERCLA.

The Toxic Substances Control Act 1976 (TSCA) and the Federal Insecticide,
Fungicide and Rodenticide Act 1947 (FIFRA) require regulation of commercial
chemicals to reduce risks to human health and the environment. The Toxic Substances

19
Available at: http://fas.org/sgp/crs/misc/RL30798.pdf (visited on 16.11.2014).

272
Control Act (TSCA) of 1976 was enacted by Congress to give EPA the ability to track
the 75,000 industrial chemicals currently produced or imported into the United States.
EPA repeatedly screens these chemicals and can require reporting or testing of those that
may pose an environmental or human-health hazard. EPA can ban the manufacture and
import of those chemicals that pose an unreasonable risk. Also, EPA has mechanisms in
place to track the thousands of new chemicals that industry develops each year with
either unknown or dangerous characteristics. EPA then can control these chemicals as
necessary to protect human health and the environment. TSCA supplements other Federal
statutes, including the Clean Air Act and the Toxic Release Inventory under EPCRA.

The Pollution Prevention Act 1970 (PPA) authorizes various mechanisms intended to
prevent pollution by reducing the generation of pollutants at the point of origin. The
Emergency Planning and Community Right-to-Know Act 1986 (EPCRA) require
industrial reporting of toxic releases and encourages chemical emergency response
planning. This law was designated to help local communities protect public health, safety
and the environment from chemical hazards. To implement EPCRA, Congress required
each state to appoint a State Emergency Response Commission (SERC). The SERC's
were required to divide their states into Emergency Planning Districts and to name a
Local Emergency Planning Committee (LEPC) for each district. Broad representation by
fire fighters, health officials, government and media representatives, community groups,
industrial facilities and emergency managers ensures that all necessary elements of the
planning process are represented20.

Under these and other statutes, Congress has assigned EPA the administration of a
considerable body of law and associated programs and activities. It covers the major,
basic statutory authorities underlying the agency’s programs and activities and those
which EPA has delegated to the states.

7.2.3 Germany

Environmental protection as a constitutional principle: German environmental

law is strongly influenced by constitutional law. According to Article 20(a) of the German
Federal Constitution environmental protection is a fundamental aim of state policy.
20
Available at: http://environ.andrew.cmu.edu/m3/s7/us_laws.shtml, (visited on 16.11.2014).

273
All governmental and decentralized public bodies are legally bound to this constitutional
guideline. However, Parliament has many possibilities to influence environmental policy.
There is also no fundamental right to environmental protection which could be claimed
before the courts. Neither the fundamental rights to the integrity of the person nor to
property ensure a right to a healthy natural environment. Nevertheless Article 20(a) of the
German Federal Constitution has an impact on statutory interpretation and serves as a
substantial reason to justify limitations of fundamental rights, e.g. the right to property,
the right to pursue an occupation, the freedom to conduct a business, the freedom of
religion and the freedom of the arts and sciences21.

Legislative competences

The German Federal Constitution divides legislative competences concerning

environmental protection between the federal level (the Federal Republic) and the
regional level (“Lander”). Since 2006, when an important reform of German federalism
was enforced, all important areas of environmental law are attributed to the legislative
power of the Federal Republic: air quality management, waste management, noise
abatement, spatial planning, nature conservation, water pollution prevention, soil
protection, hunting and coast protection. In respect to spatial planning, nature
conservation, water pollution prevention and hunting the “Lander” may deviate from
federal legislation. Traditionally, federal law has priority over regional law. The recently
introduced “deviating legislation” changes that customary rule. From now on the
lex-posterior-rule prevails in the branches of environmental law mentioned above and
legislation of the “Lander” is not bound to the federal statutes any more. Nevertheless
they have to observe federal constitutional law and EU-law.

Statutory Laws

All important subjects of environmental law are putdown in federal laws. Most of
these statutes were reviewed in the past few years, notably the Federal Immission Control
Act, 2002, the Federal Act on Nature Conservation and Landscape Management, 2010,
the Water Resources Act, 2010, the Closed Substance Cycle and Waste Management Act

21
Available at: http://www.ius-publicum.com/repository/uploads/04_04_2011_9_47_Glaser.pdf, (visited
on 16.11.2014).

274
(in revision at present, entry into force of the new Closed Substance Cycle Act in 2011),
the Town and Country Planning Act, 2008, the Federal Soil Conservation Act , 1998, the
Federal Hunting Act ,1976, the Animal Protection Act, 2006 and the Gene Technology
Act, 1993. However, the attempt to create a complete Environmental Code including all
specific statutes failed once again in 2008 due to political reasons.

There has been a fast development of Environmental energy law in the past years.
The Renewable Energy Sources Act (2004/2009) and the Act on the Promotion of
Renewable Energies in the Heat Sector (2008) are the main regulations. The cross-section
issue of environmental energy law concerns all other parts of environmental law.
Primarily environmental energy law comprises the support of renewable energy sources
through financial incentives. Main goal is to combat climate change. In Germany the
most important renewable energy sources are wind power stations, biogas plants, solar
equipments and in some regions hydroelectric power stations22.

Legal duties of individuals and enterprises

Both individuals and enterprises are subject to many duties concerning environmental
protection. Public authorities have empowered to impose appropriate measures. Anybody
running an installation has to avoid deterioration of water quality and air pollution. Waste
has to be disposed according to specific rules, depending on whether a substance or
object fulfils the definition of waste for recovery or waste for disposal. Consequently the
respective waste has to be recycled or to be left to the waste disposal authority.
Contaminated soil must be cleaned up. Particular legal regulations authorize public
authorities to enforce these obligations. In addition to this and corresponding to the polluter
pays principle responsible people have to pay damages according to the Environmental
Liability Act, 1990 and the Environmental Damage Act, 2007. The burden of proof has been
reduced, liability regardless of fault has been agreed upon and damages on biodiversity
have to be compensated. At last the administrative rules are completed by fiscal
incentives and penalty taxes, the most famous example being the eco-tax on mineral oil
and electricity.

22
Available at: http://www.ius-publicum.com/repository/uploads/04_04_2011_9_47_Glaser.pdf, (visited
on 16.11.2014).

275
Procedural environmental law

The idea of procedural justice gained much importance in German administrative

law over the last years. The evolving procedural approach can be recognized first of all in
environmental law. The most important step in this context was the promulgation of the
Environmental Impact Assessment Act (1990). According to this act an environmental
impact assessment must take place before projects evoking major effects on environment
can be authorized. Public authorities dealing with an application for a corresponding
project have to consider the results of the assessment as soon as possible. The Strategic
Environmental Assessment is also to be mentioned regarding specific planning decisions.
Other procedural regulations are the Environmental Audit Act (2002), the Environmental
Information Act, 2004 and the Environment Legal Remedies Act, 2006. The Environmental
Information Act guarantees a right of free access to information concerning environment
which is held by or for public authorities. Anybody may exercise this right without further
authorisation. Limited exceptions are provided by law regarding public or private interests23.

7.2.4 Singapore

Singapore is a small country in which the government exercises legislative and

economic control. Exerting this legislative power, Singapore's parliament has passed
various legislative acts and enacted subsidiary legislation under these acts, to safeguard
the environment. In the past twenty-five years or so, parliament has enacted laws
concerning inland and marine water, air, solid wastes and hazardous wastes24.

The Water Pollution Control and Drainage Act 1985 (Water Act) is the primary
statute that regulates inland water in Singapore. Its purpose is to provide for the drainage
of inland areas, to maintain and restore the cleanliness of rivers and watercourses and to
control the collection, treatment and disposal of sewage. It is divided into six parts,
including parts which focus on drainage, water pollution control and sewerage.
The Prevention of Pollution of the Sea Act 1990 (Sea Act) was passed to give effect to

23
Available at: http://www.ius-publicum.com/repository/uploads/04_04_2011_9_47_Glaser.pdf,(visited
on 16.11.2014).
24
Available at: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1270&context=wmelpr,
(visited on 16.11.2014).

276
the 1973 International Convention for the Prevention of Pollution from Ships as well as
to make provisions to prevent the pollution of Singapore waters.

Air pollution in Singapore is controlled by Acts and regulations covering both

industrial premises and motor vehicles. It includes the Clean Air Act, the Clean Air
Regulations of 1972, the Road Traffic Act and the Motor Vehicles Rules of 1974.
Industrial premises are regulated under the Clean Air Act. The Clean Air Act has two
primary parts. Part II of the Clean Air Act regulates air pollution from highly polluting
industrial premises (scheduled premises). Part III of the Clean Air Act regulates industrial
and trade premises in general. The Clean Air Act adopts two standards to meet its goals: (1)
reasonably practicable with regard to local conditions, circumstances and the current state of
technical knowledge and (2) the best practicable means for the provision and use of plants.

The Environmental Public Health Act 1988 regulates solid waste in Singapore.
Waste is defined broadly to include scrap material or an effluent or other unwanted
surplus substance arising from the application of any process, any substance or article
which is required to be disposed of as being broken, worn out, contaminated or otherwise
spoiled, or anything which is discarded or treated as if it were waste. Solid waste is
addressed in Part III of the Health Act. Part III of the Health Act deals with the cleaning
of public streets, the removal of refuse, operation of disposal facilities and the disposal
and treatment of industrial waste. The Commissioner has the power to set up systems for
the collection and removal of refuse and other waste and he may require any person
carrying on a trade or business to periodically remove industrial waste or stable refuse to
a disposal facility.

Several Singapore statutes regulate toxic and hazardous waste, as well as

dangerous substances. These statutes include the Environmental Public Health Act 1988,
the Petroleum Act 1985, the Poisons Act 1989 and the Radiation Protection Act 199225.

25
Douglas L. Tookey, “Singapore's Environmental Management System: Strengths and Weaknesses and
Recommendations for the Years Ahead”, William & Mary Environmental Law and Policy Review,
Vol. 23 Issue 1 (1998) 190.

277
7.3 Municipal Solid Waste Management in Asian Countries

Solid Waste Management (SWM) is an integral part of the urban environment and
planning of the urban infrastructure to ensure a safe and healthy human environment
while considering the promotion of sustainable economic growth. Rapid economic growth by
industrialization of the developing countries in Asia has created serious problems of waste
disposal due to uncontrolled and unmonitored urbanization. The problem is further
aggravated by the lack of financial as well human resources trained in SWM practices in
the sphere of collection, transportation, processing and final disposal. In this scenario, the
responsible persons or agencies concerned with the public health and environment
protection face the crisis of ineffective MSWM. The waste generated in the developing
countries is similar in composition, the variation between regions being dictated by the
climatic, cultural and industrial, infrastructural and legal factors.

The Asian countries chosen for the comparative analysis is due to the large
population in China and India with wide geographical variations while Sri Lanka and
Thailand represent newly industrialized nations. All the four countries are experiencing a
rapid economic growth and urbanization.

7.3.1 Solid Waste Generation

Solid waste generation in the Asian countries is based on the economic

development, density of population, size of the urban habitation and consumption rate of
commercial goods. The per capita generation of solid waste in Asian cities is given in
Figure 7.1 which indicates a range of 0.2 to 1.7 kg’s/day. This is mainly due to economic
disparity among the population especially with regard to China which has a wide range
based on the economic status and population density. The urban population is over 38
percent and the waste generation has been increasing over the years26. Similarly, the
urban population of India is 28% though the figure for waste generated is based on
estimates from the volume. The higher level of waste generation in Sri Lanka is due to
increased consumption patterns as well as the movement of the people from the rural
areas to urban centre. In Thailand over 23% of the population is urban and its rate of

26
National Research Institute (NRI) China. Municipal Solid Waste Management in China, Country
Report, (2003).

278
economic growth causes the higher value in waste generation per capita per day. As
indicated the waste generated is primarily biodegradable that is usually dumped on barren
land or non-engineered landfills.

Figure 7.1

Waste generation per capita per day27

7.3.2 Waste Composition and Variations

Looking at the composition of the waste generated in these countries, the

bio-degradable portion dominates the bulk of MSW. Generally the bio-degradable
portion is mainly due to food and yard waste, whereas the developed regions have a
higher paper and cardboard content28. In most of the countries composting would be the
most appropriate technology for such waste reducing it almost by half. Incineration
would not be a suitable option due to the extreme moisture content and accordingly a low
calorific value, too low for a self sustaining incineration. The waste composition from
India indicates a comparable lower food but higher inorganic (ash and dust) content.

27
C. Visvanathan andJ. Tränkler, “Municipal Solid Waste Management in Asia- A Comparative Analysis”,
Workshop on Sustainable Landfill Management (3–5 December, 2003) Chennai, pp. 3-15.
28
Dhussa A.K and Varshney A.K.“Energy Recovery from Municipal Solid Waste - Potential and
Possibility”, Bio Energy News- UNDP, Vol.4, No. 1, (2000).

279
The lower values for paper, glass and plastic are due to the intensive collection and
scavenging by informal waste collectors29. China has also higher ash content, which is
due to the geographical location in the temperate latitudes and common use of raw coal.
Thailand on the other hand has an increasing trend in plastic and paper an impact of the
progressing industrialization and urbanization30.

7.3.3 Collection and Transportation

Generally speaking, waste collection service does not reach the entire population
of the urban centres. On the other hand people are not aware of the facilities provided,
resulting in uncollected waste, which can exceed 20 - 50%31. The collection ratio varies
from city to city and the systems are either inadequate or inefficient. Most of the
collection systems range from the use of small and impoverished metal or plastic
containers or enclosures and waste platforms to well-monitored bins, which are grossly
inadequate. The transport systems include a great variety of vehicles. If more efficient
collection trucks are under operation the age of the fleet in general is old and their
availability is low. This hampers the overall collection process and 50% of the trucks
might not be working due to lack of spare parts or continuous breakdown. Further to that
collection crews increase their income by scavenging the waste thus reducing the
collection efficiency. Storage bins are either in short supply or collection is not adequate
to cause spilling and littering about.

7.3.4 Processing and Disposal

Proper disposal of MSW is necessary to minimize environmental health impacts

and degradation of land resources. In developing countries, MSW is commonly disposed
of by transporting and discharging in open dumps, which are environmentally unsafe.
Systematic disposal methods are composting, land filling and incineration. Looking at the
most common disposal methods in the Asian countries indicate the share of open
dumping to be 90% in India, 85% in Sri Lanka, 65% in Thailand and 50% in China.
29
National Research Institute (NRI), India. Municipal Solid Waste Management in India. Country
Report, (2003).
30
National Research Institute (NRI) China. Municipal Solid Waste Management in China, Country
Report, (2003).
31
United Nations Environment Programme (UNEP). State of the Environment, South Asia (ISBN: 92-
807-2037-2, 2001).

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Composting

Composting is an integral part of the waste processing and disposal systems.

Generally the higher biodegradable portion of MSW calls for the use of composting
technique, which is being practiced in small scale. This is due to the economic strictures,
lack of awareness and basic technical know-how in most urban areas. Two most common
methods for the composting of waste are windrow composting and vermin culture.

In India, M/S Excel Industries Ltd has set up its “bio-organic soil en-richer”
plants at Kolkata, Bangalore and other places with capacities of 35 to 500 tons per day.
It has a distinct “build-own-operate” basis for its plants in coordination with the local or
state agencies enabling an efficient running system. The Celrich compost generated is
marketed through Excel’s network for its own agro-chemicals throughout India thus
effectively reducing the use of chemical fertilizers by the farmers for growing sugarcane,
grapes and bananas. The overall cost of production per ton is US$ 25 to 30 while the
market value is US$ 33.5 to 42 per ton. Excel is planning to setup more composting
plants for municipal and agro industrial wastes. It has also provided its technical
cooperation to its counterparts in Sri Lanka for windrow composting under Colombo
Municipal Council. Following the example set by Excel, other private entrepreneurs and
NGOs have taken up bio-waste composting ventures in other parts of India. Though
manual composting was practiced in many places in India, technical problems due to the
lack of space and bio-waste segregation has discouraged the use32.

In Thailand, 10% of the MSW is composted and one of the methods applied is the
vermin composting using tiger worms to reduce the biodegradable in Barommatrilokanat
21 community. Domestic refuse is separated at source into organic matter, recyclables
and general garbage. The organic matter is collected and brought to the community
composting centre made of circular cement and/or brick enclosures where tiger worms
are used to convert the bio-waste. It takes about 3 to 4 months for one batch to
decompose into compost rich in humus, which is used to improve the soil porosity in

32
National Research Institute (NRI), India. Municipal Solid Waste Management in India. Country
Report, (2003).

281
clayey soil. The compost provides additional incomes to the community as it can be sold
for US$ 125 per ton33.
Land filling
The final disposal of MSW is landfill occurs at three categories, which are:
1. Open dump or open landfill, which is the most common for all developing countries
whereby the refuse is simply dumped in low lying areas on open land and the waste,
is tipped haphazardly.
2. Semi-controlled or operated landfills are those in which at a designated site, the dumped
refuse is compacted and daily topsoil cover is provided to prevent nuisance. Every kind of
waste municipal, industrial or clinical/hospital waste is dumped without segregation and is
not engineered to manage the leachate discharge and emissions of landfill gases.
3. Sanitary landfills are those practiced in the developed countries with facilities for the
interception of the leachate generation and its treatment using a series of ponds and it
has arrangements for the control of gases from waste decomposition34.
Among the three, sanitary land filling is an engineered system which is the best
option taking into account the likely environmental impacts by the MSW with respect to
the pollution of air, water and soil. However, this kind of comparable secure system is
scarcely found in the region.
Incineration
Incineration of the solid takes a low profile in the waste disposal system practiced
in the Asian countries, which is similar in most developing countries. The main
constraints are the high capital, operation and maintenance costs involved. The major
portion of the MSW is bio-degradable with relatively high moisture content; the calorific
value (CV) of the waste is low. It is found that the technology is unsuitable unless the
bio-wastes are separated at the source and the calorific value is suitable for the purpose.
In specific cases like the clinical and hospital wastes incineration has to be applied which
for example is widely used in facilities in Thailand.

33
National Research Institute (NRI), Thailand. Municipal Solid Waste Management in Thailand. Country
Report, (2003).
34
Tchobanoglous G., Theisen H and Vigil S., Integrated Solid Waste Management: Engineering
Principles and Management Issues (McGraw – Hill, Inc.: New York, 1993).

282
Developments Abroad

The Philippines Clean Air Act 1999 bans the incineration of wastes. In 1985,
Sweden implemented a two year moratorium on the construction of all new incinerators.
The US EPA has released a set of new operating parameters that will have the effect of
shutting down 70%of the incinerators. Since 1985 about 280 incinerator proposals in the
US have been refused or abandoned due to public opposition.

The Japanese government has announced that it will not allow new garbage
incinerators to be built in areas where dioxin concentrations exceed the prescribed limit.
However, the government has not imposed restrictions on small size incinerators which
burn waste at a rate less than 200 kg’s per hour. Australia has no national hazardous
waste incinerator or any other incinerator that is licensed to burn hazardous waste35.

Figure 7.2

MSW disposal methods practiced in Asian countries36

35
P.B. Sahasranaman, Handbook of Environmental Law, 250 (Oxford University Press: New Delhi,
2nd Edn., 2012).
36
C. Visvanathan andJ. Tränkler, “Municipal Solid Waste Management in Asia- A Comparative
Analysis”, Workshop on Sustainable Landfill Management (3–5 December, 2003) Chennai, pp. 3-15.

283
7.4 Electrical and Electronic Waste Management in India and Switzerland

Due to rapid growth in usage of Electric and Electronic Equipment (EEE) in

modern life style, e-waste management is a growing and global issue. The major problem
lies with the populous and developing countries like China and India, which have
although small per capita waste production (estimated to be about 1 kg per capita per
year), but are huge producers of Waste Electrical and Electronic Equipment (WEEE) and
also have the fastest growing markets for EEE which is far from saturation 37. In addition,
a considerable amount of used EEE has been imported both legally and illegally in these
countries. The large-scale unethical export of e-waste by industrialized nations to developing
countries such as India, China and Pakistan has shifted the adverse consequences of
development to communities, which are ill equipped to deal with such wastes38.

Switzerland and India are two different countries in their handling of post
consumer electronic and electrical waste. The key issues discussed in each country also
varied widely. The biggest advantage of comparing Switzerland to India is to find
how a system that has been in place for some time evolved and how that may help India
(or a similar developing country) in establishing its own e-waste management systems.
It is improper to even suggest that since the Swiss system has been found to be
successful, it should be replicated, ad verbatim. Instead, a comparison is used to identify
and benefit from, the strengths and weaknesses of both systems. The major comparison
indicators are actor involvement, material flows and controls and externalities. The
indicators were chosen on their ability to illustrate the most important characteristics of
an e-waste management system.

7.4.1 Actor Involvement

Actor involvement indicates the level of involvement of each actor – the

government, the producers, the retailers, the consumers, the collectors and recyclers.

37
Streicher M.S., Widmer R., Jain A., Bader H.P ., Scheidegger R. and Kytzia S., “Key drivers of the
e-waste recycling system: Assessing and modelling e-waste processing in the informal sector in
Delhi”, Environmental Impact Assessment Review, Vol. 25, (2005) p. 472-491.
38
Manomaivibool P., Lindhovist T and Tojo N., “Extended Producer Responsibility: The management of
waste electrical and electronic equipment in India”, Report commissioned by Greenpeace
International, available at: http://ewasteguide.info/biblio/extended-pr-0, (visited on 02.12.2014).

284
A high involvement of all actors represents equitable distribution of the responsibility of
managing e-waste. The actors can bear financial, legal, informational, physical or
controlling responsibilities which directly influence the e-waste management system.

The Swiss system entails a high degree of involvement for all actors, who share
the responsibility of the product equitably. The consumer pays the advance recycling fee
(ARF) and must bring back the product, the retailer is obligated to take it back, the
recycler must ensure that the e-waste is properly recycled and the producers, bear their
share of the responsibility by ensuring that the environmental impact of their products are
minimal through its entire life cycle. The government does not participate in the system
on a day-to-day basis, but performs a controlling and monitoring role and sets guidelines,
as and when required. In India, the government and producer are not involved in the
e-waste management system in any way. The highest involvement is that of collectors
and recyclers who bear the physical and economic burden of the end-of-life management
of the appliances39.

7.4.2 Material Flows and Controls

In Switzerland, approximately 9 kg’s/capita of e-waste are processed every year,

among the highest in the world. In India the per capita generation of e-waste was
substantially lower. This is also a result of the low market penetration of electronic and
electrical equipment. However, both India and Switzerland has similar characteristics
when it comes to the variety of the e-waste processed. Both systems encompass all (or
most) types of discarded electronic and electrical appliances. Between the Swiss
Economic Association for the Suppliers of Information, Communication and
Organizational Technology (SWICO) and the Swiss Foundation for Waste Management
(SENS) systems in Switzerland, all types of equipment from IT and office to consumer
electronics to small and large household appliances are covered. In India, though no such
formal demarcation of responsibilities exists, collectors and recyclers process any kind of
equipment that has electronic or electrical components. Both systems also do not discriminate
on the basis of product brand, accepting any equipment from all manufacturers, irrespective

39
Deepali Sinha, The Management of electronic waste: A Comparative Study on India and Switzerland
60-61 (St. Gallen University Master Thesis 2004).

285
of when or where the product was sold. The main difference in the two systems is in
terms of the controls and monitoring mechanism. In Switzerland the multiple levels of
controls through the entire system is there, while in India complete control over the flow
of material is lacking.

7.4.3 Externalities

The external effects of an e-waste management system can be both positive as

well as negative. While positive effects include job creation and the economic multiplier
effects there from, the negative side effects could mean higher levels of pollution and
dangers to human health. In a system, the negative externalities should be minimized
while attempting to maximize positive externalities. Externalities exist in both systems,
both positive as well as negative. On the positive side, the Swiss system, with high
emission standards is able to have lesser soil, water and air pollution. Not only are the
standards higher, the actors fulfilling these requirements as well. The Swiss system also
enforces high occupational health standards for people involved in the handling and
treatment of e-waste. In contrast, the most positive aspect about the Indian system is the
large number of jobs it generates, giving employment to many more people than in
Switzerland. However, the low emission and occupational health standards are the
negative aspects of the Indian system which need to be improved.

7.4.4 Environmental governance

India and Switzerland are radically different in their environmental governance.

Environmental regulations in Switzerland are not only much more stringent but also
better enforced. Relatively, in India, the implementation and enforcement of environmental
regulations is lax and even in case provisions for penalties exist, they are seldom applied.
As a result, there is little deterrence (and conversely little incentive) for actors engaging
in polluting activities (conversely, environmentally friendly activities). Without any strict
guidelines making either actor – manufacturer, retailer, consumer or recycler – responsible
for the sound management of e-waste, the current system has evolved purely based on
market needs, by shifting costs out of the system as far as possible. The Swiss system, in
comparison, internalizes most of the environmental costs, in large part due to the legal
mandate with clearly defined responsibilities and their strict enforcement in cases of

286
non compliance. The differences between India and Switzerland on indicators such as
control and monitoring over the material flows and emission and occupational health
standards could also be attributed to the different levels of environmental governance
between the two countries.

7.5 Bio-Medical Waste Management in Asian and African Countries

The hospital waste management practices in a few Asian countries have been chosen,
viz. Japan, People's Republic of China and several of the South Asian countries, since they
are neighbours to the Indian sub-continent. As for the south Asian countries, a comparative
analysis has been drawn and the Indian legal scene has been included in the comparison.

In Japan, the infectious waste management was first regulated in 1992 rule and
infectious wastes are defined as the waste materials generated in medical institutions as a
result of medical care or research which contain pathogens that have the potential to
transmit infectious diseases. Revised criteria for infectious waste management were
promulgated by the Ministry of Environment in the year 2004. Infectious waste materials
are divided into three categories: the form of waste; the place of animal generation; the
kind of infectious diseases.

In The Peoples Republic of China, sustainable management of healthcare wastes

(HCW) takes into account the requirements deriving from the Stockholm Convention on
Persistent Organic Pollutants (POPs) and the WHO recommendations. Although there
were two laws on the subject, this is the principal law on Environmental Protection in
China. The other law is a special law for prevention, control and elimination of infectious
disease and protection of human health, viz. Law of the People's Republic of China on
Prevention and Treatment of Infectious Diseases, 1989; and although there have been
various standards laid down in the year 2001, it was only after a few years that special
administrative regulation for Chinese healthcare waste management was introduced
called the Healthcare Waste Management Regulation, 2003.

One important basis of this management process, stimulated five categories of

healthcare waste as infectious waste, pathological waste, sharp objects, chemical waste
and pharmaceutical waste and this was recognized through another regulation called

287
Medical Waste Category 2003 which was soon thereafter followed by stipulated
administrative punishment for violations of Healthcare Waste management provision called
the Administrative Punishment Rules for Medical Waste management in the year 2004.

As far as the South Asian countries are concerned, legislative measures in respect
of management of bio-medical wastes in select countries, viz. in Bangladesh, Bhutan,
Maldives, Nepal, Pakistan and Sri Lanka were analysed. It is seen that apart from India
(which has a specific set of rules from the year 1998) and Pakistan (which has rules for
hospital waste management from the year 2005) other South Asian countries do not have
any specific legal control over the management and handling of bio-medical wastes, even
though there are legislative measures for the protection of the environment.

In South Africa, effective regulations have been identified in Guateng - the

smallest province in the Republic with only 1.4% of the land area, but highly urbanised,
which comprised of the cities of Johannesburg and Pretoria 40.

The province of Guateng has Healthcare Waste Management Regulations, 2003,

which apply to all persons who generate, collect, receive, store, transport, treat, dispose
of, or handle healthcare risk waste in any form in the Province of Gauteng. It defines
'healthcare waste generator' means any person, whose acts or processes produce healthcare
waste and includes, but is not limited to, home based care givers and organizations; medical
and dental practitioners, clinics, hospitals, surgery centres, laboratories, research laboratories
and general practitioners; veterinary practitioners, clinics and hospitals; traditional healers;
and tattoo artists; body pierces, undertakers and embalmers.

The regulation lays down a general prohibition and duty of care, focuses on
segregation, waste minimization, packaging, internal transport, treatment and disposal of
healthcare waste. Other issues of concern in these regulations are authorization to
generators of healthcare waste, reporting, record keeping and audit reports. Some of these
provisions are similar to the Indian legal provisions.

40
Available at: http://www.elaw.org/node/2852 (visited on 8.2.2014).

288
7.6 Hazardous Wastes Management in Developed and Developing Countries

Hazardous waste management programs in developing countries follow the same

five major stages of development as in developed countries: problem identification and
legislation; selection of a lead agency, promulgation of rules and regulations; development of
treatment and disposal capacity; and creation of a mature compliance and enforcement
program. However, most developing countries are still many years away from a mature
hazardous waste management program.

As is the case in developed countries, industry is a major source of hazardous

waste in less developed countries, but industrial hazardous waste sources in developing
countries present more risks than in developed countries because of poor management
and obsolete technologies. Notably, multinational companies often shift their plants to
less developed countries and use technology banned in their home countries. The accident
at the Bhopal plant in India, which belonged to Union Carbide of USA, is a prime example of
this situation. A number of hazardous waste sources are specific to less developed countries.
Transporters and disposal facilities for hazardous waste, for example, create greater hazards
in developing countries due to less strict management standards.

Another unique problem to developing countries is that hazardous wastes or

wastes contaminated with hazardous wastes are often reclaimed and recycled by
scavengers. Household sprays and insect repellents, which are in widespread use in hot
climates, can also present higher risks in developing countries. Contaminated sites, spills
and abandoned industries are often never remediated or restored to their original
conditions, as is the case in Tanzania, so they continue to be sources of pollution to
groundwater and soil through leachate, to air by volatilization and to surface water by
surface run-off.

Developing countries possess a mix of industrial and less developed country-specific

hazardous waste sources. The major sources of hazardous solid wastes in Tanzania, for
example, are industrial activities, agriculture and agro-industry, medical facilities,
commercial centres, households and the informal sector. The informal sector, the part of
the urban economy in less developed countries that has small, competitive and labour

289
intensive businesses that are not regulated by the government, is a unique source
of hazardous solid waste that is currently recognized as a major problem in many developing
countries.

Problems involving mismanagement of hazardous agrochemicals in particular are

more serious in developing countries, especially in Africa and Latin America, than in the
developed world. Agro-industry encompasses farming activities (including urban
agriculture), livestock production (including processes that are pertinent to the processing
of livestock products) and agro-produce processing activities. Common wastes from
these sources include crop residues, grain bran and animal carcasses. These waste
fractions are generally re-used and recycled at a high rate as soil amendment agents in
addition to being reused as animal feed or as raw materials for animal feed production.
The hazardous agro-industry waste fractions include pesticides, industrial fertilizers,
veterinary products and animal carcasses. These components are of concern because of
their health and environmental impacts and the fact that they are not properly managed.
Notably, in Tanzania many stocks of obsolete and unwanted pesticides as well as
veterinary products are poorly managed. Both fertilizers and pesticides find their way
into ground and surface water sources with resultant impacts.

Although there are hazardous waste management difficulties everywhere due to

their health and safety risks, less developed countries face a unique set of additional
problems. Many hazardous substances are produced by technologies from the developed
world, so less developed countries certainly face some of the same problems experienced by
developed countries. Compared to economically developed countries, however, developing
nations do not possess the advanced technology necessary for adequate hazardous waste
management. Severe financial constraints often prevent these countries from acquiring the
necessary technologies and many are dependent upon donors for technology acquisition. This
is exacerbated by the fact that a variety of other problems resulting from economic
difficulties make hazardous waste management a low priority compared to other more
immediate concerns. In addition to economic constraints, hazardous waste management
deficiencies in developing countries are also a result of the general lack of awareness among
citizens. In Tanzania, for example, as well as many other developing countries, hazardous
waste management has not received sufficient public attention.

290
 Many less developed countries suffer from waste dumping and mismanagement
because they lack legislative provisions or enforcement mechanisms necessary for proper
hazardous waste management. The current trend of economic liberalization can
exacerbate such a situation by resulting in the increase of the types and quantity of
hazardous wastes. Economic liberalization can also lead to the growth of industries and
other economic establishments that produce hazardous wastes in areas that were
previously reserved for other uses, for example in residential areas or near water sources.
High population growth accompanied by economic development has also caused a
massive increase in the production of solid waste, including hazardous wastes. When
coupled with the hazardous waste problems already faced by less developed countries,
including safety and health issues, ignorance, legislative deficiencies, enforcement laxity,
technological deficiencies and poverty, it is no wonder that this has triggered discussions
aimed to avert the potential public health and environmental catastrophe that could occur
as a result of the additional waste production.

To address their unique hazardous waste difficulties, developing countries should

learn from the experiences of developed nations while also looking for new and
innovative solutions that achieve a better fit with the limited resources available to
developing nations. Despite the numerous hazardous waste problems faced by developing
countries, it is promising that concern for hazardous waste management is becoming a
growing issue among less developed countries.

7.7 Conclusion

This chapter has brought out a comparative account of the environmental protection
and hazardous, solid waste management laws in respect of India, UK, USA, Germany,
Singapore and other developed and developing nations. Matters related to the
enforcement of the environmental laws and the judicial response also find place in this
study. The Indian Supreme Court in the case of Indian Council for Enviro-legal Action v.
Union of India41 has held that the plethora of the environmental legislation in India has
not resulted in preventing environmental degradation, which on the contrary has
increased over the years.

41
(1996) 3 SCC 212.

291
 Britain has taken a lead in European environmental law by enacting the Environmental
(Protection) Acts 1990/1995, which transposes many EC Directives into national law and
also by restructuring the environmental enforcement agencies responsible for pollution
prevention.

The Municipal Solid Waste (MSW) composition in Asian countries is broadly

similar differing slightly due to climatic and cultural variations. The system adopted for
collection, transportation and disposal is also similar but unique to Asia, unlike in the
developed countries where the MSWM is formalized. This uniqueness is attributed to the
waste composition, involvement of the informal sector, voluntary groups, private
organizations, NGOs and Community Based Organizations (CBOs) and rapid privatization
of collection, transportation and processing systems. Composting is seen as a major
processing system for almost one half of the waste which is bio-degradable and can be
enhanced with economically friendly source separation techniques like in the developed
countries. The recent trends in technological development for Municipal Solid Waste
Management (MSWM) systems in Asia cannot be effective by direct transfer of
technology from the west without adapting it to suit the situation in Asia. The major
lacuna in the allocation of resources for the MSWM in Asia which does not encompass
the entire SWM scenario requires immediate attention of the Government and Civic
Organizations to curtail the growing environmental problems. The present scenario of
MSWM which is undergoing rapid changes towards the incorporation of the Integrated
Solid Waste Management (ISWM) could pave way for sustainable urban environment in
Asia with effective inputs in economic, environmental and social aspects with adequate
institutional arrangements.

The comparative study of the management of e-waste in countries like India and
Switzerland shows that they have entirely different systems. While the circumstances
may be different in different situations and not replicable, there are learning from the
systems that are applicable universally. Firstly, there should be a systematic collection of
e-waste, which can be private or public, organised or semi-formal. Whatever the nature of
the collection system, it should be comprehensive including all types of electronic and
electrical wastes. A system with only partial coverage of product categories, or based on

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the time of sale, or one that singles out specific brands, is not convenient from a
consumer’s point of view. The success of the Swiss system shows that competitors can
co-operate to have an efficient and flexible e-waste management system.

The bio-medical waste management was earlier controlled through laws

governing general waste management in almost all countries, till such time specific law
was enacted for this purpose. The legal framework in the USA is the starting point in the
enactment of specific law for this purpose, following which several countries of the world
took initiatives in this direction. This study has highlighted the legal framework in the,
South Africa, Asian and South Asian countries. Apart from the USA, few countries have
specific laws to manage bio-medical wastes, notable amongst them being the Guateng
Province in South Africa and India being the first amongst the South Asian countries to
have a law that is specific for the managing and handling of bio-medical waste.

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 CHAPTER – VIII

CONCLUSION AND SUGGESTIONS

Ever since the inception of mankind, man has shared an intimate relation with the
environment. It is in the lap of the mother earth that man has taken birth, nourished
himself and grown into a strong being, capable of meeting the needs of life. The entire
physical, intellectual and spiritual development of man has been actualized in the
backdrop of a peaceful and harmonious environment. Its contribution and dedication in
the upliftment of human kind is priceless.

However, with the growth of civilized society, man has felt the urge to transform
his surroundings to meet his increasing material needs and desires. A transformation was
witnessed in the ideology of man from ‘preserver’, to ‘destroyer’. He exploited the
resources of the earth, restructured them to fulfil his demands, created new scientific
technologies to smoothen the part of life and hasten the developmental process. But, in
his endeavour to conquer the earth and established his supremacy; unfortunately he lost
sight of the need to protect and conserve the natural resources. The result was the
unprecedented depletion of the ecology posing serious threat to the existence of ‘life’ on
the earth.

Today, pollution and degradation of the environment has become a burning

problem. It has invited serious attentions of the entire world. Different countries have
come together to chalk out global plans to put an end to the disaster and thereby
safeguard the lives of the present and coming generations. This requires not only a
careful and cautious handling of the problem under consideration but also requires a
meticulous approach to tackle it more effectively and in a planned manner. They have
acknowledged that the roots of this problem lie in the development process. The rapid
industrialization, urbanization, unscientific use of natural resources, improper
management of wastes, increasing use of chemicals have significantly contributed to the
deterioration of the environment. It has resulted in concentration of greenhouse gases and
carbon dioxide in the atmosphere, depletion of the ozone layer, deforestation and rising
of sea level and change in seasonal cycles. States have, therefore, entered into several

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conventions and declarations to make a consolidated effort to protect the environment, at
the international and national levels.

During the pre-independence era we did not have a well defined or settled law
concerning the protection of environment. The British enacted legislations relating to
forestry and the Indian Penal Code which covered some of the important environmental
aspects. However it must be added that there was no concern from the side of the
government for protection and conservation of the environment, because the basic policy
of the British was to derive as much wealth as possible by exploration of the resources –
natural or manmade.

When India attained independence in 1947, environment protection did not

receive much attention of the government though it found a mention in our natural
programmes for sanitation, public health, nutrition, water supply and housing. The year
of 1972 proved a turning point in the Indian perspective of environment protection as the
United Nations Conference on Human Environment held at Stockholm drew the attention
of the world community towards degradation and despoliation of the environment vis-à-
vis its protection. It was during this particular time that the parliament by the constitution
42nd Amendment Act 1976 incorporated Articles 48(A) and 51(A) (g) in the body of the
constitution. Thus, environment protection received an express constitutional sanction
and became a matter of nation concern. Simultaneously for the prevention and control of
pollution, the Water (Prevention and Control of Pollution) Act 1974 was enacted. The
legislation established an institutional mechanism for abatement and control of water
pollution in various parts of the country.

On the recommendations of the Tiwari Committee report, the Departments of

Environment were constituted both at the Central and the State levels. The administrative
infrastructure was further strengthened and legislative activity intensified with the
enactment of exclusive environmental legislations, namely Water Cess Act 1977, Air Act
1981 and the Environment (Protection) Act 1986.

In India we have a number of laws which deal with various aspects of environmental
protection, regulation, conduct of environmentally harmful activities and provide for
remedies in case of their breach. The common law doctrines of nuisance, trespass,

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negligence, rule of strict liability, absolute liability and the riparian owner’s right
still hold the field apart from the statutory measures designed to control pollution.
These doctrines enshrine common law control for the liability for escape of noxious
objects, careless use of noxious articles or pollutants and the infringement of property
rights in water. The distinct advantage of these common law remedies is that they provide
injunctive as well compensatory relief. It has been admitted that common law approach to
environmental protection suffers from many shortcomings and cannot be operationalised
in modern conditions. In the modern industrialised society, the tort actions pose new
problems of establishing the proof of damages as a pre requisite for being successful in
such litigation. In addition, the common law standard of reasonableness does not provide
satisfactory basis for regulating pollution. The objectivity as well as the usefulness of
common law principles has not met with much success in India because the judges rarely
deal with tort cases involving subject to standards of reasonableness. On the other hand,
the judiciary places more reliance on statutes in seeking support to their view of
reasonableness. Thus, the common law remedies available for control of pollution have
not received judicial expansion and hence their scope has become much more restricted.

In India, it is encouraging to note that the environment has received a constitutional

sanction. The fundamental rights and the directive principles of State policy underlined
our national commitment to protect and improve the environment. The Courts in India
have also given a new interpretation to the constitutional provisions touching the
environmental perspectives. The interpretation given to Article 21 on fundamental rights
has added new dimension to the quality of life and effect of environment relating thereto.
A regulatory mechanism for the prevention of environmental degradation through writ
petition is provided for in Article 32 and 226 of the constitution.

In addition to this, the statutory control of pollution is operative at the Municipal,

State and the Central levels. During pre- independence, the principal legislations covering
the field were the Indian Penal Code 1860, Code of Criminal Procedure 1898 and the
Police Act 1861. There were other legislations which governed other related aspects of
environmental pollution. The notable pieces of legislations included the North Canal and
Drainage Act 1873, the Obstruction of Fair Way Act 1861, the Indian Fisheries Act 1897,
the Oriental Gas Company Act 1857 and the Factories Act 1948. All these statutes

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contained piecemeal provisions which were not only insufficient but had no effective
mechanism for combating pollution.

In this second half of this century the laws dealing exclusively with environment
protection have passed. The Insecticides Act 1968, Wildlife Protection Act 1972, Water
(Prevention and Control of Pollution) Act 1974, Forest (Conservation) Act 1980,
Air (Prevention and Control of Pollution) Act 1981, Public Liability Insurance Act 1991.
The Water Act 1981 and the Environment (Protection) Act 1986 provides a
comprehensive mechanism for prevention and control of pollution and the legislations
covered all fields, such as management of hazardous wastes, municipal solid wastes, bio-
medical wastes and e-wastes. The legislation provides the setting up of pollution control
boards for carrying out its purposes. Stringent penalties having sufficient deterrent value
have been prescribed for violations of anti pollution measures.

The introduction of the citizen’s suit has added new significance to the
perspective of environmental laws. The enforcement techniques introduced in the
legislations enabled the State agencies even to shut down the polluting industries and to
cut down the supply of power or water. Whatever be the present legislative field covering
environmental protection the fact remains that despite a large number of laws on the
statute book, the researcher concludes that we have not been able to develop a sound
legal mechanism for control of environmental pollution. The Environment (Protection)
Act 1986 though a good piece of legislation has a very narrow area of operation. Thus,
the need for a further revision of the existing environmental laws remains.

The Indian judiciary which has been assigned the tremendous responsibility of
interpreting the constitution and the laws has played a vital role in the development of
environmental jurisprudence. The Ratlam Municipality Case1, Delhi Gas Leakage Case2,
the Ganga Pollution Cases3, Dehradun Quarrying Case4, Calcutta Taj Hotel Case5 are

1
Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622.
2
M.C. Mehta v. Union of India, AIR 1987 SC 965.
3
M.C. Mehta v. Union of India, AIR 1988 SC 1037.
4
Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., AIR 1985 SC 652.
5
Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.

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some of the leading cases where the Apex Court, not only by liberalized the traditional
rule of locus-standi but has played a decisive role in the protection of the environment.

Significantly, the court not only provided new remedies or reliefs but even
appointed commissions to look into the task of identification and monitoring of pollution.
The Court has mandated the State to carry out the directions given by it from time to
time. The Court has also taken a serious view and come down with heavy hands on the
industrialists who have been neglecting the compliance of environmental standards.
In fact the Supreme Court has given new direction to environmental justice by giving its
vital observations on environmental education, public awareness, protection of public and
workers, fundamental rights and duties, pollution insurance, quantum of damages in
pollution accident cases and principle of absolute liability. It must be acknowledged that
the higher judiciary has made a significant contribution in safeguarding and protecting
our environment. At the same time the researcher concludes that judiciary is not the only
effective forum for settlement of environmental problems.

The penal measures adopted for control of pollution shows that these measures
have failed to have any deterrent effect on the polluters because the economic benefits
arising out from violation of anti-pollution measures are always more than the amount of
fine imposed. Also penal measures have proved counterproductive in many cases where
fine is imposed. The guilty again has persisted in the violation of laws which not only
destroys the anti pollution ethos in the society but also renders all such measures
ineffective. Similarly, criminal prosecutions attached a stigma and hence, courts have not
shown much interest in passing conviction orders, more particularly, against industrial
giants. So the researcher finds that due to complexities of laws, technicalities involved in
the laws of evidence and long delays involved in the disposal of cases, the process of
quicker implementation of environmental laws has virtually slowed down.

All types of waste are not only imported but generated in India-hazardous
industrial waste, biomedical waste, municipal solid waste and e-waste. The quantum of
wastes generated over the past several years have posed an ever increasing threat to
environment and public health. Pollutants from industrial zones contaminate water bodies
and rivers and even pollute the ground water in many places. Further the crops are

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contaminated through industrial effluents but the scale of such an impact has yet to be
identified.

Municipal Solid Waste Management continues to remain one of the most

neglected areas of urban development in India and most of the urban local bodies in India
have weak administration and management capacities resulting in mismanagement. Weak
financial position, organizational weakness, lack of co-ordination among agencies and
people apathy towards solid waste management have made this service far from
satisfactory level. Urban waste problems are not confined only to city area but also
greatly affect fringe area. There are mainly six functional components of solid waste
management, from the point of generation to final disposal and problems create at the
every step. The methods of collection, segregation, transportation and disposal are not up
to the mark and have led in creating unhygienic environmental conditions.

Municipal solid waste increased many times over the years because of increase
population, urbanization, standard of living, changing lifestyle, food habits and so on.
Collection of garbage is weakest link in the whole chain of management. Lack of waste
collection efficiency, about 15-25 percent of garbage remains uncollected and becomes
breeding grounds for vectors, rodents, mosquitoes and flies posing severe health hazards.

Currently, at the level of waste generation and collection, there is no source

segregation of compostable waste from the other non-biodegradable and recyclable
waste. Proper segregation would lead to better options and opportunities for scientific
disposal of waste. Recyclables could be straightway transported to recycling units that in
turn would pay a certain amount to the corporations, thereby adding to their income. This
would help in formalizing the existing informal set up of recycling units. It could lead to
several advantages such as enabling technology up gradation, better quality products, saving
of valuable raw material resources of country, reducing the need for landfill space, a less
energy-intensive way to produce some products and employing labour in recycling
industries. Organizing the informal sector and promoting micro-enterprises are an effective
way of extending affordable services. Promotion and development of recycling is a means of
upgrading living and working conditions of rag pickers and other marginalized groups.

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 Most of the municipal solid waste in India is dumped on land in an uncontrolled
manner. Such inadequate disposal practices lead to problems that will impair human and
animal health and result in economic, environmental and biological losses. Comparing
the biological, chemical and thermal treatment options in the Indian scenario, perhaps the
biological processing options get the priority. Composting and vermi composting are
successful and quite popular now in India instead of incineration. But, it is slow process
and requires a large space. An open dump or an uncontrolled waste disposal area should
be rehabilitated. It is advisable to move from open dumping to sanitary land filling in a
phased manner. Land filling should be restricted to non-biodegradable, inert waste and
other waste that are not suitable either for recycling or for biological processing.

The current regulations (Municipal Solid Waste Management Rules, 2000) are
very stringent. Norms have been developed to ensure a proper municipal solid waste
management system. Unfortunately, there is a large gap between policy and implementation.
The producer responsibility is to avoid having products on the market that cannot be
handled effectively and environmentally correctly when they become waste products.
A new survey should be carried out on the generation and characterization of municipal
solid waste management in India. Since the municipal solid waste management is
heterogeneous in nature, a large number of samples have to be collected and analyzed to
obtain statistically reliable results. Finally, the researcher concludes that the lack of
resources such as financing, infrastructure, suitable planning and leadership, are the main
barriers in municipal solid waste management. The increase of service demands
combined with the lack of resources for municipalities are putting a huge strain on the
existing municipal solid waste management systems.

The industry driven economy of India has resulted in hazardous waste problems,
which are difficult to manage in an environmentally friendly manner. The non-
enforcement of ‘Polluter Pays Principle’, continuation of import of hazardous wastes
despite the ban, absence of proper infrastructure viz. centralized disposal facilities
Treatment Storage and Disposal Facilities (TSDF) and lack of technical and financial
resources have led to the unscientific disposal of hazardous wastes posing serious threat
to human, animal and plant life.

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 Since treatment and disposal of hazardous wastes and remediation of
contaminated areas due to illegal and unscientific disposal of hazardous wastes is cost-
prohibitive, the future policy directions in the field of hazardous waste management
should emphasis on minimization of wastes. Waste minimization can be achieved
through source reduction and reuse/recycle of wastes. The source reduction can be
achieved by better inventory management, improving raw material quality, substitution of
less hazardous raw materials, process modification and better operating practices.

The judiciary has shown its deep concern for the protection of the environment
from hazardous wastes. The judiciary has kept in mind the need to have industries
carrying on hazardous activities, as they are needed for national development. At the
same time the judiciary has emphasized that if any hazardous industry results in any
environmental pollution, then it must compensate for restoring the environment to its
original stage. The emphasis of judiciary has been on ‘Sustainable Development’ and it
has strictly applied the ‘Precautionary Principle’ as well as ‘Polluters Pay Principle’
Thus, the researcher concludes that there is an urgent need for formulating proper
hazardous waste management strategies, implementation of hazardous wastes
management regulations and establishment of proper hazardous waste Treatment Storage
and Disposal Facilities (TSDFs).

Biomedical waste is not only hazardous and pollute the environment but also
dangerous for human being, animals and plants. Medical wastes are often
indiscriminately dumped into rivers, abandoned along road side and sides of hospitals.
It threatens health and safety of all the people. Despite of rules, government lacks ability
to enforce their legal requirements. Authorities show their inability for use of incinerators
due to lack of funds and lack of training. No training is given to medical staff for disposal
of biomedical waste with the help of incinerators. The use of incinerators is compulsory
to dispose of medical waste, but a very few hospitals have it and these incinerators
produce smoke, dangerous gases and pollute the environment.

Safe and effective management of biomedical waste is not only a legal necessity
but also a social responsibility. Lack of concern in persons working in that area, less
motivation, awareness and cost factor are some of the problems faced in the proper

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hospital waste management. There is a need for education as to the hazards associated
with improper waste disposal. An effective communication strategy is imperative keeping
in view the low awareness level among different category of staff in the health care
establishments regarding biomedical waste management.

Electrical and Electronic Waste has emerged as one of the fastest growing waste
streams worldwide today. The large amount of electrical and electronic equipments
reaching end-of-life poses a huge challenge. Computers and electronics equipments are
designed without giving sufficient attention to the aspects such as downstream impacts
and the ease of recycling. Thus, their dismantling is also extremely labour-intensive.
Electrical and Electronic products continue to contain an assortment of toxic chemicals
and are designed without recycling aspects; they would pose a threat to environment and
public health at their end-of-life. As electrical and electronic products are currently
constituted, e-waste recycling operations in any country will generate polluting residues
and emissions.

The current management practices in India have adversely affected the health of
the recycling workers and the environment as a whole. The recycling activities that are
carried out offer utter danger. Techniques such as acid-bathing to extract the valuable and
reusable components from the E-waste are usually carried out by the urban poor without
any health and safety measures. Moreover, the involvement of women and children in
such recycling activities further amplify the problem of E-waste recycling in the country.
As most of the E-waste in India is channelized to non-formal sector, the formal sector is
facing problem of not having sufficient input materials. Hence, the evolution of formal
sector is still a leisurely process in the country. The key stakeholders identified along the
management chain have their respective roles and responsibilities towards sustainable E-
waste management in the country.

The consumers of Electrical and Electronic Equipments (EEE) are found to be

highly perplexed on the future of their obsolete EEE. Most of the consumers are unaware
of the improper disposal of E-waste and continue to discard their end-of-life appliances
with regular household waste. However, the policy level initiatives related to E-waste in
India are reasonably recent and inadequate to address the issue. For instance, the IT

302
revolution started in India way back in early 1990s, whereas a proper policy related to
E-waste was being introduced almost after 20 years, in the form of the “E-waste
(Management and Handling) Rules, 2011”. It is high time to consider different policy
level initiatives in the form of legislations and other market-based policy initiatives such
as Extended Producer Responsibility, Take Back Policies, Advanced Disposal Fee,
Advanced Recycling Fee, Tax Credit, Deposit-Refund System, Pay-As-You-Throw etc.,
in order to address the issues related to Electronic wastes in India.

After careful critical examination of various laws dealing with environmental

protection particularly hazardous and municipal solid waste management, the researcher
has concluded that the existing laws in combating the environmental degradation and
existing enforcement machinery in implementing laws relating to hazardous and
municipal solid waste management found to be ineffective, inadequate, vague and
unclear. Thus, from the above readings, the following conclusions emerge:

i. The Environment Protection Act 1986, 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 are neither comprehensive nor
adequate. More legislation means more difficulties in enforcement. Piecemeal
legislation always results in inefficiency, ineffectiveness of the law and
multiplicity of authorities.

ii. The powers granted to the Pollution Control Boards under the Water
(Prevention and Control of Pollution) Act 1974, the Air (Prevention and
Control of Pollution) Act 1981 and the Environment (Protection) Act 1986 are
insufficient and more often advisory or investigative in nature. The boards
themselves have no power to take coercive measures against the polluters. The
Boards do not have power to punish the violators, but can launch prosecution
against them in the Courts which ultimately defeat the purpose and object of
the environmental laws due to long delay in deciding cases.

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 iii. The Environment Impact Assessment (EIA) procedure is among the tools
which in recent years have been employed widely to judge the impact of
various activities on the environment so as to mitigate such impact. For the
person seeking to locate the hazardous industry, the Central Government has
been empowered under rule 5 of the Environment (Protection) Rules 1986 to
take into consideration net adverse environmental impact likely to be caused
by the operation of any industry while to prohibit and restrict the location of
industry. But in the absence of any methodology or procedure suggested
therein to carry out the study for EIA, it is very difficult to have any clear
picture about future effect of any hazardous industry to be established.
Moreover in India we have no provision in any of our statutes making the EIA
study compulsory.

iv. Under the environmental legislations, there is no specific liability on the

Pollution Control Boards. It is due to the activities of the hazardous industries
not being carried out in accordance with the provisions of the environmental
legislations cause disaster situation of natural environment. Such situations
clearly relates to monitoring system, which needs to be carried out by the
State Pollution Control Board in exercise of their functions as mentioned
under environmental legislations6. In these circumstances, the question arises,
if somewhere any negligence lies on the part of the Pollution Control Boards,
why they should not be held responsible for their conduct along with
industries which are held mainly responsible for causing disastrous situation
due to their irresponsible activities.

v. The cognizance power of the Court under different legislations7 is that it will
not take cognizance on any private complaint unless a person duly serves a
notice of 60 days to the board about his intention to file the complaint. It

6
Chapters IV and V of the Water (Prevention and Control of Pollution) Act 1974 and Chapter III and IV
of the Air (Prevention and Control of Pollution) Act 1981which deals with the power and functions of
the State Pollution Control Boards respectively to prevent and control water and air pollution.
7
Section 49 of the Water (Prevention and Control of Pollution) Act 1974, Section 43 of the Air
(Prevention and Control of Pollution) Act 1981 and Section 19 of the Environment (Protection) Act
1986 deals with the cognizance power of the court relating to offence.

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 precludes the affected persons from seeking remedy for a considerable time.
Since the Boards are already under a mandatory duty to monitor the activities
of the industries, there is no justification to restrain any affected person from
seeking any remedy for such a long time.

vi. The Environment Protection Act 1986 does not contain minimum compulsory
punishment for violations.

vii. The question of overlapping and double delegations is seen among section 3,
4, 6 and 25 of the Environment Protection Act 1986.

viii. Under section 25 (7) of the Water (Prevention and Control of Pollution) Act
1974, the consent of the Board is necessary for a new or altered outlet or for
new discharge of pollutants. The Act lay down that such a consent shall be
deemed to have been given unconditionally on the expiry of a period of four
months from the date of making application unless the consent is given or
refused earlier. This implies that if a consent application is not decided within
the prescribed period, it shall amount to a grant of implied consent. Whereas
the English law provides that if within the period of three months of the date
of application the authority has neither given nor refused the consent, the
authority shall be deemed to have refused the consent.

ix. According to Rule 4, 5 and 6 of the Municipal Solid Waste (Management and
Handling) Rules 2000, every municipal authority shall, within the territorial
area of the municipality, be responsible for the implementation of the
provisions of these rules and for any infrastructure development for collection,
storage, segregation, transportation, processing and disposal of municipal
solid wastes. In addition, the municipal authority or an operator of a facility
had to make an application for the grant of authorization for setting up waste
processing and disposal facility including landfills from Pollution Control
Board (PCB) of the State. The State Government shall have complete
responsibility for the enforcement of the provisions of these rules. The PCB of
a state shall be responsible for monitoring compliance and issuing
authorizations for waste processing and disposal facilities. These rules only

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 state the specific action to be taken by municipalities and PCBs, but do not lay
down specific action to be taken by the State Governments. Further, the State
Government shall be responsible only for the enforcement of the provisions of
these rules. The role of the State Government in planning and setting up of
waste processing and disposal facilities was negligible and as such, the State
Government cannot be held responsible if municipalities do not have a waste
management plan or if municipalities do not set up municipal solid waste
management systems.

x. The Ministry of Environment and Forests (MoEF) has notified the Municipal
Solid Waste (Management and Handling) Rules 2000 but the implementing
agencies specified in these rules like Municipalities and District Authorities
do not fall in to the administrative or financial control of MoEF. Ministry of
Environment and Forests do not have the powers to ensure compliance by
these implementing agencies. The coordination with the ministries under
whose administrative jurisdiction these agencies fall was crucial for ensuring
better implementation of waste rules. Municipalities responsible for the
implementation of the municipal solid waste rules come under the
administrative control of the Ministry of Urban Development (MoUD);
support of MoUD would be essential in ensuring better compliance to
municipal solid waste rules.

xi. Under the Municipal Solid Waste (Management and Handling) Rules 2000
there is no specific provision authorizing storage and segregation of municipal
solid waste at source in a scientifically segregated way. The segregation and
storage of municipal solid waste at source is the most crucial component in
the whole process of municipal solid waste management.

xii. The Hazardous Wastes (Management, Handling and Transboundary

Movement) Rules, 2008 fails to provide any incentive of waste reduction/
minimization efforts. Industries are therefore reluctant to adopt such measures.

xiii. Hazardous Wastes (Management, Handling and Transboundary Movement)

Rules, 2008 does not provide any standards for cleanup of contaminated sites

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 and limits for disposal of waste on land, therefore, those industries which are
causing contamination of land and water bodies through inappropriate waste
disposal are not legally bound to clean the site.

xiv. As per Rule 3 (5) of the Bio-Medical Waste (Management and Handling)
Rules 1998, activities in connection with treatment or immunization of
animals, research activities and testing of biological are included in the
definition of bio-medical waste. The definition seeks to include wastes from
veterinary institutions, animal houses and research centres. However, in
common parlance, bio-medical wastes are most often referred to as hospital
waste or healthcare waste and consequently, would not include wastes from
research activities and veterinary care. These wastes being outside the strict
mainstream of bio-medical waste as commonly understood.

xv. Rule 4 of the Bio-Medical Waste (Management and Handling) Rules 1998 is
very wide and includes the duty of an ‘occupier of an institution’ who
generates bio-medical waste. However there is a direction mentioning that all
steps are to be taken to handle such waste without any adverse effect to ‘human
health and the environment’. This provision is very generally worded and does
not specifically provide Do’s and Don’ts so as to avoid the adverse effects.

xvi. There is a specific direction in rule 6 (5) of the Bio-Medical Waste

(Management and Handling) Rules 1998 that, the maximum permissible
period of storage of untreated bio-medical waste is 48 hours. The question
here is as to how the authorities ensure compliance with this rule when there is
no technology to test this period of 48 hours in respect of such wastes. The
authorities also do not have any designated officials to undertake surprise
inspections in this regard. Apparently, the only way left for the authorities is to
rely on the statement of the hospital staff, which speaks the weakness of this rule.

xvii. Rule 8 of the Bio-Medical Waste (Management and Handling) Rules 1998
provides that all occupiers of institutions handling bio-medical wastes in
different ways to apply for grant of authorisation, but excludes specifically
occupier of clinics, dispensaries, pathological laboratories, blood banks

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 providing treatment/ service to less than 1000 (one thousand) patients per
month. There is an inherent policy contradiction in these rules, on the one hand,
the rules require all medical practitioners to safely handle bio-medical wastes, on
the other hand the rules keep outside their purview smaller occupiers, even
though they collectively contribute significantly to the quantum of bio-medical
wastes generated. Therefore, the law is at present concentrating on medium and
large polluters and leaving aside the marginal polluters, which are great in
number and which in effect outweigh other polluters.

xviii. Under rule 6 Schedule –II of the Bio-Medical Waste (Management and
Handling) Rules 1998 there was overlapping with regard to colour coding and
segregation of waste. For instance, waste under category 3 and 6 can be collected
either in yellow or in red bags. Similarly, wastes under category 7 may be
collected either in red or blue bags this caused confusion in segregation.

xix. The E-waste (Management and Handling) Rules 2011 ignores the unorganized,
small and medium sectors where 90 percent of the e-waste is generated.
The law currently does not provide any plan to rehabilitate those involved in
informal recycling. The informal sector’s role in collection, segregation and
dismantling of e-waste needs to be nurtured to complement the formal
recyclers as supply chain partners.

xx. The E-waste (Management and Handling) Rules 2011 does not detail the
business model for collection of e-waste from consumers. The legislations
enacted by the government covers generation, storage, transportation and
disposal of hazardous waste but do not provide a streamlined collection
mechanism. Rule 4 of the E-waste (Management and Handling) Rules 2011
provide for setting up of collection centres, individually or jointly or a registered
society or a designated agency or a company or an association to collect
e-waste. This provision can be used by informal sector. As per the
responsibility of the producer, they need to set up collection centres and
organize a system to meet the cost involved for collection of their end-of-life
products in an environmentally sound manner. The producers may adopt

308
 different business models for implementation of Extended Producers
Responsibility (EPR).

xxi. The E-waste (Management and Handling) Rules 2011 do not recognize the
magnitude of transboundary movement of e-waste under different categories, for
example, under the pretext of metal scraps and second hand electrical appliances.

xxii. As per the rule 4 of E-waste (Management and Handling) Rules 2011 the
concept of “Extended Producers Responsibility” (EPR) aims to place full
responsibility of collection of end-of-life electronic products and their safe
disposal on the producers. They would have to ensure that the polluting
products will be recycled in an environmental friendly manner by refurbisher,
dismantlers or recyclers. Practically the extended producers responsibility is
very difficult to implement because country like India where it would be
difficult to track electronic products which may be sold several times by more
than one customer after using those products for some time. And even it is
impossible for a producer in India to keep track of an electrical or electronic
item which he/she might have sold to a customer from the southern part of our
country and who in turn might dispose it off to somebody else residing in
another distant region.

xxiii. Under rule 4 of the E-waste (Management and Handling) Rules 2011, the
onus of creating awareness of the hazardous constituents of e-waste and its
management is on the producers. The awareness among the consumers
regarding hazardous constituents of e-waste can be created through active
propaganda in print & electronic media and strong extension programmes.
The awareness through media may not be feasible by the producers
individually.

309
Suggestions and Recommendations

1. The Environment Protection Act 1986, the Municipal Solid Wastes (Management
and Handling) Rules 2000, the Hazardous Wastes (Management, Handling and
Transboundary Movement) Rules 2008, the Bio-Medical Wastes (Management
and Handling) Rules 1998 and the E-Waste (Management and Handling) Rules
2011 should be made comprehensive. All the loopholes found in the legislations
should be plugged. The wastes management rules should be brought under a
separate single Act.

2. For effective and speedy implementation of waste management laws, the Boards
should be given powers of enforcing their own order. Some powers vested in the
Courts concerning violation of environmental laws should be vested in the
Boards. It will not be unsafe to give more powers to enforcing agencies which
may include power to fine and secure conviction in case of violation of anti-
pollution laws. Combining administrative powers as well as judicial powers in
one body may be objected to on the ground that the same body will be prosecutor
and judge. To avoid such situation, a separate legal cell may be created within the
enforcing institution which may be entrusted with the legal functions, while
administrative wing may be entrusted with monitoring and enforcement of
regulations.

3. For the purpose of efficient enforcement of waste management laws, it is

necessary to set up Environmental Courts at all the states and they should be
extended to district level and taluk level on need based principle. These Courts
should be allowed to adopt summary proceedings for speedy disposal of cases. In
order to discourage prolonged litigation, the provision should be confined to
single appeal. Moreover for ensuring efficiency in the disposal of cases a time
limit should be fixed within which the environmental courts may be required to
finally dispose of a case. Provision should also be made that non compliance with
any direction or order passed by the court so established should be regarded as an
offence punishable with imprisonment or fine or both.

310
4. Citizen Suit provision should be amended by taking away with the requirements
of 60 days notice to the Pollution Control Board, in case an individual intends to
sue a polluting industry. An individual, not only should have right to sue a
polluting industry directly but should have a right to sue a Pollution Control
Board for its inaction or wrong action. For making this provision effective
necessary amendment should be made in the legislations to enable an individual
to get necessary information from the polluting industries and the Board for
collection and analysis of samples of effluents and emissions.

5. Some methodology to conduct the study of Environment Impact Assessment must

be adopted and the inclusion of public opinion of the people living around the
industry proposed to be established should be made an integral part of such
methodology. For this purpose waste management legislations should accordingly
be amended. In addition suitable amendment should be made to conduct the EIA
study compulsory.

6. For effective management of municipal solid waste, suitable amendments should be

made in the Municipal Solid Waste (Management and Handling) Rules 2000 in such
a manner that rules should specify actions to be taken by the States and not just
Municipalities for improving the management of municipal solid waste in the State.

7. For effective implementation of municipal solid waste management rules, the

power of framing municipal solid waste management rules and the power of
implementing agencies specified in these rules like Municipalities and District
Authorities should come under the same Ministry. For that suitable amendments
should be made.

8. The storage and segregation of municipal solid waste at source shall be made
mandatory for all. Chain of segregation should not be broken from household to
landfills. Even in the household level separate bins to be provided for bio-
degradable and non degradable wastes. Suitable provisions shall be made for
providing up two bins within their premises or just outside their premises in
hotels, restaurants, marriage halls as a condition in the license issued to them.
Suitable penal provisions should also be made for the violators.

311
9. The vehicles used for transportation of municipal solid waste should be more
efficient, modern, covered, equipped with global positioning system and wireless
messaging system. Adequate maintenance facilities should be made available
round the clock.

10. Responsibility and accountability of municipality staffs should be fixed. Fair and
transparent functioning should be there. Measures should be taken to promote the
consumption of the recyclable items by the people.

11. Segregation should be given greater emphasis by means of publicity and

awareness campaigns and holding regular meetings with housing associations and
NGOs. State Governments should make waste segregation mandatory and the
municipalities should be authorized to levy fines if segregated waste is not made
available to the municipalities for collection.

12. Waste processing unit should be made mandatory in each municipality. Central
Pollution Control Board (CPCB) could help each municipality in identifying the
waste processing technology best suited to the needs of the municipality.
Sufficient funding should be provided by MoEF/MoUD to set up waste
processing infrastructure in each municipality.

13. All municipalities should take steps to improve the existing dumpsites to make
them more sanitary and aesthetic. Dumpsites in residential areas and near water
sources/water bodies should be closed down and periodic monitoring of
dumpsites for contamination of environment should take place.

14. Suitable amendment should be made in the Hazardous Wastes (Management,

Handling and Transboundary Movement) Rules, 2008 targeting waste
minimisation/reduction as its primary focus. This becomes particularly important
in view of stricter environmental standards being enforced on industries. This
results in increased cost of treatment and disposal to meet the stricter standards.
Any waste minimization/reduction effort would thus result in less waste
generation and lesser waste to be managed thus reducing the cost of waste
management.

312
15. Suitable amendment should be made in the Hazardous Wastes (Management,
Handling and Transboundary Movement) Rules, 2008 that use of any treatment or
cleanup option requires cleaning of soil and groundwater to some acceptable level
of contaminants. Most of the time, in dealing with contaminated soil or
groundwater, it is neither economically nor technologically feasible to achieve the
zero level of cleanup. It is, therefore, necessary for the Government to set
standards not only for disposal of waste on land but also for cleanup of
contaminated soils and groundwater.

16. Although substantial progress has been made in imparting training and capacity
building to SPCB officials, additional capacity at SPCB is needed to deal with
analytical and monitoring requirements regarding tracking of hazardous waste
movement and management. In addition training is also required for critical
industrial sectors generating hazardous waste to address their responsibility in
handling, storage, transportation, treatment and disposal of hazardous waste.

17. The Central Government or the State Government with the help of the Central
Government should set up Research Laboratories so as to develop newer and
cheaper methods to treat the hazardous wastes and toxic substances and provide
the same to the industries on subsidized rates as an incentive.

18. The Research Reports about the toxicity of a substance and the effect of its waste
on animate and inanimate objects should also be published in leading newspapers
so that the general masses may also have knowledge of the danger they are facing
or likely to face due to the wastes and toxic substances.

19. The import of highly toxic substances and wastes dangerous to human health and
well being should be altogether banned .For that suitable amendment is needed

20. Consistent and scientifically based definitions must be established as to what is

meant by ‘bio-medical waste and its components’. Since the primary goal of
‘managing’ bio-medical wastes from healthcare facilities is to prevent the
accidental spread of disease, then it must first be acknowledged that there is only
a small percentage of the bio-medical waste stream that is contaminated in a
manner that renders it capable of transmitting disease. Therefore, the definitions

313
 in the legislation have to be precise and focused on that small vulnerable
percentage in particular.

21. Of the bio-medical waste stream that is potentially infectious or hazardous, the
most immediate threat to human health (patients, workers and public) is the
indiscriminate disposal of sharps (needles, syringes, lancets and other invasive
tools), even though it constitutes the smallest fraction of these wastes. Risk of
disease transmission from bio-medical waste will be solved to a large extent when
proper ‘Sharps Management’ is instituted in all healthcare facilities.

22. Bio-Medical “Waste Management Authority” shall be constituted under the

legislation which oversees the implementation of the provisions of this law. Such
an authority should consist of a chairperson, who is qualified and competent to
head such an authority. The members can be from other related areas and from
other stakeholders in the system. There can be one representative from the
discipline of law, one representative of the association of nursing homes, one
senior scientist, either a microbiologist or bio-chemist from a research
organization and one representative of an NGO in the field of environment. This
body should have the power to examine the applications for the purpose of
granting authorization to healthcare establishments generating, treating and/or
transporting bio-medical wastes. An appellate authority needs to be appointed by
the State Government to enable the aggrieved establishments to have redressal in
respect of non-grant of such authorization.

23. Proper education and training must be offered to all workers beginning with
doctors till the subordinate staff to ensure an understanding of the risks that
wastes pose, how to protect themselves and how to manage wastes (especially
how to properly segregate). Education and training programs must be developed
which speak to each segment of the system in a way specific to each category and
there is need for legislative provisions in this regard.

24. New hospitals should not be allowed to commence treatment without making sure
that it has a facility for treatment/disposal of bio-medical waste. No registrations

314
 should be allowed to those hospitals that do not set up treatment/disposal facility
or join a common facility.

25. For effective implementation of E-waste (Management and Handling) Rules

2011, there must be strong regulatory mechanism strengthened by manpower and
technical expertise.

26. Creating awareness of hazardous constituents of e-waste and its management

should be carry over by agencies like Municipal bodies / State Pollution Control
Boards / Central Pollution Control Board. Nevertheless, government needs to
undertake a massive awareness programme to encourage e-waste collection for
safe disposal and recycling. A partnership among all stakeholders is vital for the
success of the process.

27. For effective implementation of E-waste (Management and Handling) Rules

2011, the government should impose a cess on electrical & electronic products to
meet the cost of common e-waste recycling units to be set up either in the
government sector or in private sector with government assistance. Alternatively,
the municipalities or civic agencies may be assigned the overall responsibility for
the setting up of processing units, operationalisation and coordination of the e-
waste management.

28. For effective management of e-wastes, collection points are necessary. Almost all
major electronic brands have service centres across the country and these can be
used as collection points. The incentive, that a customer gets to give an old
electronic good for recycling would be key to its success.

Besides the above,

a. An independent “Waste Management Agency” should be created to deal with the

problems of waste management. Areas should be divided on the basis of
categories of waste. Each category of waste is entrusted to “Waste Management
Agency” in the lower level and the agency will have hierarchy of agencies up to a
national level. The independent waste management agency should be a
constitutional organ. The main object of the agency is to effective and efficient

315
 management of hazardous and solid waste and to protect and preserve the whole
environment. The agency should have broad powers of inspection and enforcement
of environmental policies and laws.

b. The government should take measures to create awareness about the gravity of
pollution, consequences of improper management of wastes and legal procedure.
In order to educate people about the environmental issues, there should be
exhibition of slides in the regional languages at cinema theatres and television.
In fact, it is the awareness of the people that plays a decisive role behind the
success of any legislation or national policy. Generally people are not well
acquainted with the legal procedures as to enable them to seek relief under
environmental legislation, hence there is need to educate people about such legal
procedure. This can be done by organising legal camps, seminars or distributing
pamphlets among the people. Moreover public must be compelled to participate
effectively in the awareness programme.

c. Environmental goods such as pure water, pure air and pure soil should be given
recognition on the basis of money value so that industries and people will hesitate
to pollute them. For this suitable environmental and economic policies should be
formulated.

d. “Environment Protection Force” should be created to safeguard the environment

from pollution and degradation. They must be given powers to launch case
against the violators before the environmental court. Moreover environmental
offences should be treated as a criminal offence and severe punishment must be
provided depending upon the seriousness of the offence. This cause a deterrent
effect to the wilful violators.

Finally, protection of the environment, proper management of hazardous and solid

waste and keeping ecological balance unaffected is a task which not only the government
but also every individual, association and corporation must undertake. It is a social
obligation and fundamental duty enshrined in Article 51-A (g) of the constitution.
Moreover a positive attitude on the part of everyone in the society is essential for
effective and efficient enforcement of these legislations.

316
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