RESEARCH FOUNDATION FOR SCIENCE, TECHNOLOGY AND NATURAL RESOURCE POLICYversusUNION OF INDIA & ORS.

                    [2012] 6 S.C.R. 489


      RESEARCH FOUNDATION FOR SCIENCE,                           A
   TECHNOLOGY AND NATURAL RESOURCE POLICY
                              v.
                  UNION OF IN.DIA & ORS.
             (Writ Petition (C} No. 657 of 1995)
                                                                 B
                        6 JULY, 2012
    [ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]

     Environmental law: Hazardous waste - Import of toxic
waste - Ban on such imports - Writ petition challenging the C
decision of the Ministry of Environment and Forests permitting
import of toxic wastes in India under the cover of recycling;
seeking direction to the Union of India to ban all imports of
all hazardous/toxic wastes; seeking amendment of the
Hazardous Wastes (Management & Handling) Rules, 1989 D
(H. WM.H. Rules) in conformity with the BASEL Convention
and Articles 21, 47 and 48A of the Constitution; and for
declaration that without adequate protection to the workers and
public and without any provision of sound environment
management of disposal of hazardous/toxic wastes, H. WM.H. E
Rules are violative of Fundamental Rights and, therefore,
unconstitutional - Writ petition disposed of by reasserting the
interim directions given with regard to the handling of
hazardous wastes and ship breaking in the various orders
passed in the writ petition from time to time and, in particular, F
the orders dated 13th October, 1997 and 14th October, 2003
- Central Government also directed to ban import of ali
hazardous/toxic wastes identified and declared to be so under
the BASEL Convention and its different protocols - Central
Government also directed to bring the H. WM. H. Rules, in line G
with the BASEL Convention and Articles 21, 47 and 48A of
the Constitution - Prayer for declaration that without adequate
protection to the workers and public, the said Rules are
violative of the Fundamental Rights of the citizens, however,
                             489                                 H
    490     SUPREME COURT REPORTS                 [2012] 6 S.C.R.

A   rejected - Hazardous Wastes (Management & Handling)
    Rules, 1989 - Constitution of India, 1950 - Articles 21, 47 and
    4BA - BASEL Convention.

        International treaties: BASEL Convention and MARPOL
    convention - Objectives of - Discussed.
8
         In the instant writ petition, the basic grievance of the
    writ petitioner was with regard to the import of toxic
    wastes from industrialized countries to India, despite
    such wastes being hazardous to the environment and life
C   of the people of this country. The writ petitioner sought
    to challenge the decision of the Ministry of Environment
    and Forests permitting import of toxic wastes in India
    under the cover of recycling, which, according to the
    petitioner, made India a dumping ground for toxic wastes.
D   In the writ petition, the petitioner was seeking direction
    to the Union of India to ban all imports of hazardous/toxic
    wastes; amendment of Hazardous Wastes (Management
    & Handling) Rules, 1989 (H.W.M.H. Rules) in conformity
    with the BASEL Convention and Article 21, 47 and 48A
E   of the Constitution; and declaration that without
    adequate protection to the workers and public and
    without any provision of sound environment
    management of disposal of hazardous/toxic wastes, the
    H.W.M.H. Rules are violative of Fundamental Rights and,
F   therefore, unconstitutional. It was the grievance of the
    writ petitioner that since India became a signatory to the
    BASEL Convention on 22nd September, 1992, it should
    have amended the definition of "hazardous wastes", as
    provided in Article 3 read with Articles 4.1 and 13 of the
    said Convention.
G
     The Supreme Court by its interim order dated 13th
  October, 1997, appointed a High-Powered Committee
  comprising of experts from different fields. The said
  Committee submitted its report after making a thorough
H examination of all matters relating to hazardous wastes.
                            '
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 491
           RES. POLICY v. UNION OF INDIA

     On 14th October, 2003, the writ petition was taken up     A
to consider the report of the High Powered Committee on
the Terms of Reference which had been made to it.
Although, initially, the deliberations with regard to the
contents of the writ petition were confined to different
toxic materials imported into India, at different stages of    B
the proceedings, a good deal of emphasis was laid on the
issue relating to imported waste oil lying in the ports and
docks, as well as on ship breaking. The Supreme Court
observed that the ship breaking operations could not be
allowed to continue, without strictly adhering to all          c
precautionary principles, CPCB guidelines and upon
taking the requisite safeguards, which have been dealt
with extensively in the report of the High Powered
Committee, which also included the working conditions
of the workmen.                                                D
     Regarding the presence of hazardous waste oil in
133 containers lying at Nhava Sheva Port as. noticed by
the High Powered Committee, the Supreme Court
directed by way of interim order to dispose of the waste
oil under the supervision of Monitoring Committee by           E
incineration.
     Disposing of the writ petition, the Court
      HELD: 1. India is a signatory, both to the BASEL
 Convention as also the MARPOL Convention, and is,
                                                               F
.therefore, under an obligation to ensure that the same are
 duly implemented in relation to import of hazardous
 wastes into the country. The BASEL Convention
 prohibited the import of certain hazardous substances
 on which there was a total ban. However, some of the
 other pollutants, which have been identified, are yet to be   G
 notified and, on the other hand, in order to prevent
 pollution of the seas, under the MARPOL Convention, the
 signatory countries are under an obligation to accept the
 discharge of oil· wastes from ships. It is, therefore,
 important for the concerned authorities to ensure that        H
   492     SUPREME COURT REPORTS              [2012) 6 S.C.R.


A such waste oil is not allowed to contaminate the
  surrounding areas and also, if suitable, for the purposes
  of recycling, to allow recycling.of the same under strict
  supervision with entrusted units and, thereafter, to
  oversee its distribution for reuse. [Para 30) [513-A-D]
B
       2. As far as the first two prayers in the writ petition
  were concerned, the same had already been taken care
  of by the orders dated 13th October, 1997 and 14th
  October, 2003. By the first of the two orders, this Court
C appointed the High-Powered Committee with Prof. M.G.K.
  Menon as its Chairman and 14 issues were referred to the
  said Committee. After the said Committee submitted its
  Report, another Committee under the Chairmanship of
  Mr. A.C. Wadhawan was appointed to enquire into the
  disappearance of hazardous wastes from •various ports
D and container depots, and the question relating to the
  working conditions of the workmen who handle such
  wastes. After the Wadhawan Committee submitted its
  Report, various directions were given with regard to the
  handling of such hazardous wastes. Furthermore, the
E contamination risks involved in ship breaking also came
  into focus in the light of the provisions of the Hazardous
  Wastes Rules, 1989, and directions were given as to how
  ships, which were carrying wastes, were to be dealt with
  before entering into Indian waters, which included the
F prohibition on the exporting country to export such oil
  or substance without the concurrence and clearance
  from the importing country. Since the question of ship
  breaking and distribution of hazardous wastes were
  being considered separately in the contempt
G proceedings, the directions contained in the BASEL
  Convention have to be strictly followed by all the
  concerned players, before a vessel is allowed to enter
  Indian territorial waters and beach at any of the beaching
  facilities in any part of the Indian coast-line. In case of
H breach of the conditions, the authorities shall impose the
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 493
           RES. POLICY v. UNION OF INDIA

penalties contemplated under the municipal laws of           A
India. [Para 31) [513-E-H; 514-A-D)

     3. The directions contained in the second order is
based on the polluter pays principle, which is duly
recognized as one of the accepted principles for dealing     B
with violation of the BASEL Convention and the H.W.M.H.
Rules, 1989, and the same is applicable whenever such
violations occur. However, till such time as a particular
product is identified as being hazardous, no ban can be
imposed on its import on the ground that it was
hazardous. Such import will, however, be subject to all      C
other statutory conditions and restrictions, as may be
prevailing on the date of import. Accordingly, the general
prayer made in the writ petition that the Government of
India should put a total ban on all hazardous wastes, can
be applied in respect of such hazardous wastes as have       D
been identified by the BASEL Convention and its
Protocols over the years and/or where import into the
country have been restricted by the municipal laws of
India. In respect of such banned items, directions were
already given in the order dated 13th October, 1997, to      E
issue a notification to ban the import of such identified
hazardous substances. In the event, any other items have
since been identified, the Central Government is directed
to issue appropriate notifications for banning the import
of such hpardous substances as well. [Para 32) [514-E-       F
H; 515-A-B]

     4. The third prayer, that in the event of non-
compliance, the provisions of the Hazardous Wastes
(Management & Handling) Rules, 1989, should be               G
declared as unconstitutional, cannot be granted, since the
same. are in aid and not in derogation of the provisions
of Articles 21, 39(e), 47 and 48A of the Constitution. In
fact, even at the interim stage, directions were given for
compliance with the said Rules, particularly in the matter
                                                             H
   494      SUPREME COURT REPORTS                [2012) 6 S.C.R.


A of destruction of the waste oil contained in 170
  containers by incineration at U:ie cost of the importer.
  [Para 33] [515-B-D]

         5. The writ petition was entertained and also treated
    by all concerned not as any kind of adversarial litigation,
8
    but litigation to protect the environment from
    contamination on account of attempts made to dump
    hazardous wastes in the country, which would ultimately
    result in the destruction, not only of the environment, but
    also the ecology as well and, in particular, the fragile
C marine bio-diversity along the Indian Coast-line. Th~
    petitioner .foundation played a very significant rol~ in
    bringing into focus some very serious questions
    involving the introduction of hazardous substances into
    the country, which needed the Courts' attention to be
D drawn having regard to the BASEL Convention, aimed at
    protecting marine biology and countries having coast-
    lines alongside seas and oceans. The writ petition is,
    therefore, disposed of by reasserting the interim
    directions given with regard to the handling of hazardous
E wastes and ship breaking in the various orders passed
    in the writ petition from time to time and, in particular, the
    orders dated 13th October, 1997 and 14th October, 2003.
    The Central Government is also directed to ban import of
    all hazardous/toxic wastes which had been identified and
F declared to be so under the BASEL Convention and its
    different protocols. The Central Government is also
    directed to bring the Hazardous Wastes (Management &
    Handling) Rules, 1989, in line with the BASEL Convention
    and Articles 21, 47 and 48A of the Constitution. The
G further declaration sought for that without adequate
    protection to the workers and public, the aforesaid Rules
  . are violative of the Fundamental Rights of the citizens is
    however rejected. [Paras 34, 35] [515-D-H; 516-A-B]

      CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
H 657 of 1995 etc.
RESEARCH FOUNDATION FOR'. SCIENCE, TECH. AND NATURAL 495
           RES. POLICY v. UNION OF INDIA

    Under Article 32 of the Constitution of India.               A
                               WITH
Conmt. Pet. (C) No. 155 of 2005, SLP No. 16175of1997, C.A
Nos. 7660 of 1997 & 8300-8301 of 2004.

    P.P. Malhotra, Mohan Parasaran, ASG, Ashok Bhan, V.          B
Shekhar, AK. Panda, Cotin Gonsalves. Dr. Manish Singhvi,
AAG, A. Mariarputham, AG, Sanjay Parikh, Mamta Sax.ena,
AN. Singh, Pranav Raina, Shanmugo Patro, B. Vijayalakshmi
Menon, P. Parmeswaran, E.C. Agrawala, Sadhana Sandhu,
Ashwani Garg, Savitri Pandey, Krishna Kumar, Mukesh Verma,       C
B. Krishna Prasad, Anil Kumar Jha, Manik Karanjawala, K.B.
Rohtagi, Hemantika Wahi, Jesal, Satyabrat Panda, Ashok
Mathur, Shakil Ahmed Syed, Pradeep Misra, Gopal Singh,
Manish Kumar, Rituraj Biswas, Khwairakpam Nobin Singh,
Sapan Biswajit Meitei, Anil Shrivastav, Amit Kumar, Rakesh K.    D
Sharma, Radha Shyam Jena, Urmila Sirur, Sushma Suri, Anil
Katiyar, Manoj K. Mishra, Rajeev K. Dubey, Kamlendra Mishra,
Sinha & Das, Sanjay R. Hegde, Vartika Sahay, Deepika G.,
Corporate Law Group, Aruneshwar Gupta, Janaranjan Das, Ejaj
Maqbool, Bina Gupta, S. Janani, Ajay Sharma, Dilip Kumar         E
Sharma, Atiashi Dipankar, Nikhil Nayyar, P.S. Sudheer, D.N.
Goburdhan, Shiv Kant Arora, A Rastogi, Kartika Sharma,
Mukesh Verma, Yash Pal Dhingra, J.S. Wad & Co. Gaurav
Agrawal, Binu Tamta, Ashwani Bhardwaj, R. Satish, Jay Savla,
A. Raghunath, Ravindra Kumar, A. Deb Kumar, Diran                F
Bhardwaj, D.S. Mahra, Pragyan P. Sharma, Rupesh Gupta,
Mandakini Sharma, P.V. Yogeswaran, Gautam Dhamija, V.N.
Raghupathy, Sumita Hazarika, D.N. Mishra, Vibha Datta
Makhija,       V.G.      Pragasam,        S.J.      Aristotle,
Praburamasubramanian, Tarjit Singh, Manjit Singh, K.K. Gupta,    G
Pramod Dayal, Sushil Kumar Jain, B.V. Balaram Das, Vijay
Panjwani, Edward Belho, Sentikumla Jamir, Asha G. Nair,
Abhinav Ramkrishna, Milind Kumar, Bhavanishankar V. Gadnis,
B. Sunita Rao, M.J. Paul, Sudarsh Menon, T.A Khan, B.K.S
Prasad, S. Mukherjee, Satyabrata Panda, Nandini Gore,
                                                                 H
    496          SUPREME COURT REPORTS                [2012] 6 S.C.R.


A   Hemantika Wahi, Aparna Bhat, Anuj Casfleino, Jyoti
    Mendiratta, R.K. Gupta, S.K. Gupta, M.K. Singh, Shekhar
    Kumar, Ranjan Mukherjee, S. Bhowmick, S.C. Ghosh, Aruna
    Mathur, Y. Khan for the appearing parties.

          The Judgment of the Court was delivered by
B
          ALTAMAS KABIR, J. 1. This writ petition has been filed
    by the Research Foundation for Science Technology and
    Natural Resource Policy, through its Director, Ms. Vandna
    Shiva, for the following reliefs :
c
           "1.     direct the Union of India banning all imports of all
                   hazardous/toxic wastes;

           2.      direct amendment of rules in conformity with the
                   BASEL Convention and Article 21, 47 and 48A of
D
                   the Constitution as interpreted by this Court;

           3.     declare that without adequate protection to the
                  workers and public and without any provision of
                  sound environment management of disposal of
E                 hazardous/toxic wastes, the Hazardous Wastes
                  (Management & Handling) Rules, 1989 are violative .
                  of Fundamental Rights and, therefore,
                  unconstitutional;"

F        On 29th October, 1995, this Court directed notice to issue
    on the writ petition and also on the application for stay.

       2. The basic grievance of the Writ Petitioner was with
  regard to the import of toxic wastes from industrialized countries
  to India, despite such wastes being hazardous to the
G environment and life of the people of this country. The Writ
  Petitioner sought to challenge the decision of the Ministry of
  Environment and Forests permitting import of toxic wastes in
  India under the cover of recycling, which, according to the
  Petitioner, made India a dumping ground for toxic wastes. It
H was alleged that these decisions were contrary to the
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 497
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

provisions of Articles 14 and 21 of the Constitution and also       A
Article 47, which enjoins a duty on the State to raise the
standards of living and to improve public health. In the writ
petition it was also contended that Article 48A provides that the
State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country.           8
     3. In the writ petition, Ms. Vandna Shiva, the Director of
the Petitioner Foundation, who is a well-known environmentalist
and journalist, while highlighting some of the.tragedies which
had occurred on account of either dumping or release of
hazardous and toxic wastes into the atmosphere, such as the         C
tragedy which took place in the Union Carbide factory at Bhopal
in 1984, referred to the BASEL Convention on the Control of
Transboundary Movements of Hazardous Wastes and their
disposal. It was submitted that an international awareness had
been created under the BASEL Convention against the                 D
movement of hazardous wastes and their disposal in respect
whereof the United Nations Environment Programme (UNEP)
had convened a Conference on the Global Convention on the
Control of Transboundary Movements of Hazardous Wastes
pursuant to the decision adopted by the Governing Council of        E
UNEP on 17th June, 1987. The said Conference met at the
European World Trade and Convention Centre, Basel, from
20th to 22nd March, 1989. India also participated in the
Conference. On the basis of the deliberations of the Committee,
the BASEL Convention on the Control of Transboundary                F
Movements on Hazardous Wastes and their Disposal was
adopted on 22nd March, 1989. It was the grievpnce of the Writ
Petitioner that since India became a signatory to the BASEL
Convention on 22nd September, 1992, it should have amended
the definition of "hazardous wastes", as provided in Article 3      G
read with Articles 4.1 and 13 of the said Convention. It was the
further grievance of the Writ Petitioner that India should have
enacted laws in regard to the Transboundary Movement
procedur~s with regard to hazardous wastes. Some of the

                                                                    H
      498         SUPREME COURT REPORTS                 [2012] 6 S.C.R.


' A relevant provisions of Article 4 of the aforesaid Convention have
      been quoted in the writ petition and are extracted hereinbelow


            1. (a) Parties exercising their right to prohibit the import
            of hazardous wastes or other wastes for disposal shall
  B         inform the other parties of their decision pursuant to Article
            13.
            (b) Parties shall prohibit or shall not permit the export of
            hazardous wastes and other wastes to the Parties which
  c         have prohibited the import of such wastes, when notified
            pursuant to sub-para (a) above.

            (c)   Parties shall prohibit or shall not permit the export
            of hazardous wastes and other wastes if the State of
            import does not consent in writing to the specific import,
  D
            in the case where that State of import has not prohibited
            the import of such wastes.

            2. Each Party shall take the appropriate measures to :

  E                xxx                    xxx
            (c) Ensure that persons involved in the management of
            hazardous wastes or other wastes within it take such steps
            as are necessary to prevent pollution due to hazardous
            wastes and other wastes arising from such management
  F         and, if such pollution occurs, to minimiz.e the
            consequences thereof for human health and the
            environment;

            (d) Ensure that the transboundary movement of hazardous
  G         wastes and other wastes is reduced to the minimum
            consistent with the environmentally sound and efficient
            management of such wastes, and is conducted in a manner
            which will protect human health and the environment
            against the adverse effects which may result from_ such
  H         movement;
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 499
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

           xxx                     xxx                                 A

     (g) Prevent the import of hazardous wastes and other
     wastes if it has reason to believe that the wastes in
     question will not be managed in an environmentally sound
     manner."                                                          B
       4. Even restrictions on transboundary movement between
 parties contained in Article 6 of the Convention, inter alia,
 provide that the State of export shall not allow the exporter to
·commence the transboundary movement until it has received
 written confirmation that the notifier has received from the State    C
 of import confirmation of the existence of a contract between
 the exporter and the disposer specifying environmentally sound
 management of the wastes in question.

     5. On 25th March, 1994, 65 countries which participated           D
in the Convention agreed by consensus to ban all exports of
hazardous wastes from OECD to Non-OECD countries
immediately. It is the grievance of the Writ Petitioner that inspite
of such consensual decision to ban all exports of hazardous
wastes from OECD to Non-OECD countries, consistent efforts             E
were made by the industrialized countries to break down the
Non-OECD solidarity and to weaken the resolutions adopted
at the BASEL Convention, and, in the process, Asia was fast
becoming a vast dumping ground for international waste traders.

     6. In the Writ Petition various instances were provided of        F
the type of toxic wastes imported into the country under the garb
of recycling. The Writ Petitioner has also drawn the attention
of the Court to the provisions of the Hazardous Wastes
(Management & Handling) Rules, 1989, hereinafter referred as
the H.W.M.H. Rules, 1989, and complained of the fact that the          G
same had not been implemented both by the Central
Government and the State Governments and Union Territories
and their respective Pollution Control Boards.

     7. Based on the said allegations, this Court initially asked
                                                                       H
    500       SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A all the State Governments and Union Territories and their
  respective Pollution Control Boards to submit affidavits as to
  how far the provisions of the aforesaid Rules had been
  implemented. The Central Government was asked to file a
  comprehensive affidavit in respect thereof. From the affidavits
B filed, this Court appears to have come to the conclusion that
  the States and their respective authorities did not seem to
  appreciate the gravity of the matter and the need for taking
  prompt measures to prevent the adverse consequences of such
  neglect. In the said background, this Court by its order dated.
c 13th October, 1997, appointed a High-Powered Committee,
  with Prof. M.G.K. Menon as its Chairman, and referred 14
  issues to the Committee on which it was required to give its
  report and recommendations. Since the said 14 terms of
  reference are of great relevance in the matter of disposal of
  the writ p~tition, the same are reproduced hereinbelow :-
0
                "(1) Whether and to what extent the hazardous
          wastes listed in the Basel Convention have been banned
          by the Government and to examine which other hazardous
          wastes, other than listed in the Basel Convention and the
E         Hazardous Wastes (Management and Handling) Rules,
          1989, require banning.

                (2) To verify the present status of the units handling
          hazardous wastes imported for recycling or generating/
F         recycling indigenous hazardous wastes on the basis of
          information provided by the respective States/UTs and
          determine the status of implementation of the Hazardous
          Wastes (Management and Handling) Rules, 1989 by
          various States/UTs and in the light of directions issued by
          the Hon'ble Supreme Court.
G
                (3) What safeguards have been put in place to
          ensure that banned toxic/hazardous wastes are not allowed
          to be imported?

H               (4) What are the changes required in the existing
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 501
    RES. POLICYv. UNION OF INDIA[ALTAMAS KABIR, J.]

    laws to regulate the functioning of units handling hazardous      A
    wastes and for protecting the people (including workers in
    the factory) from environmental hazards?

          (5) To assess the adequacy of the existing facilities
    for disposal of hazardous wastes in an environmentally
                                                                      B
    sound manner and to make recommendations about the
    most suitable manner for disposal of hazardous wastes.

          (6) What is further required to be done to effectively
    prohibit, monitor and regulate the functioning of units
    handling hazardous wastes keeping in view the existing            c
    body of laws?

          (7) To make recommendations as to what should be
    the prerequisites for issuance of authorisation/permission
    under Rule 5 and Rule 11 of the Hazardous Wastes                  D
    (Management and Handling) Rules, 1989.

          (8) To identify the criteria for designation of areas for
    locating units handling hazardous wastes and waste
    disposal sites.
                                                                      E
          (9) To determine as to whether the authorisations/
    permissions given by the State Boards for handling
    hazardous wastes are in accordance with Rule 5(4) and
    Rule 11 of the Hazardous Wastes Rules, 1989 and
    whether the deci~ion of the State Pollution Control Boards        F
    is based on any prescribed procedure of checklist.

          (10) To recommend a mechanism for publication of
    inventory at regular intervals giving areawise information
    about the level and nature of hazardous wastes.
                                                                      G
          (11) What should be the framework for reducing risks
    to environment and public health by stronger regulation and
    by promoting production methods and products which are
    ecologically friendly and thus reduce the production of
    toxics?                                                           H
    502      SUPREME COURT REPORTS                 [2012] 6 S.C.R.

A             (12) To consider any other related area as the
          Committee may deem fit.

                (13) To examine the quantum and nature of
          hazardous waste stock lying at the docks/ports/ICDs and
          recommend a mechanism for its safe disposal or re-export
B
          to the original exporters.

               (14) Decontamination of ships before they are
          exported to India for breaking."

c      Each one of the said terms of reference are of special
  significance as far as the reliefs prayed for in the writ petition
  are concerned. The said High Powered Committee, comprised
  of experts from different fields, submitted its report after making
  a thorough examination of all matters relating to hazardous
D wastes.
        8. On 14th October, 2003, the Writ Petition was taken up
  by this Court to consider the report of the High Powered
  Committee on the Terms of Reference which had been made
  to it. Although, initially, the deliberations with regard to the
E contents of the Writ Petition were confined to different toxic
  materials imported into India, at different stages of the
  proceedings, a good deal of emphasis came to be laid on the
  issue relating to imported waste oil lying in the ports and docks,
  as well as on ship breaking. This Court observed that the ship
F breaking operations could not be allowed to continue, without
  strictly adhering to all precautionary principles, CPCB
  guidelines and upon taking the requisite safeguards, which
  have been dealt with extensively in the report of the High
  Powered Committee, which also included the working
G conditions of the workmen.
       9. One of the other issues which was required to be dealt
  with was the disappearance of hazardous waste from
  authorized ports/Indian Container Depots/Container Freight
H Stations and also as to how to deal with the containers lying
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 503
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

there. Since disappearance of hazardous waste was one of the           A
Terms of Reference, by order dated 10th December, 1999, this
Court directed that a list of importers who had made illegal
imports be placed on record. Since the same was not done,
this Court on 3rd December, 2001, directed the Government
to inquire into the matter, which resulted in the appointment of       B
an eight-member Committee by the Government, chaired by
Mr. A.C. Wadhawan. The report dated 26th July, 2002,
submitted by the said Committee suggested that action should
be taken against the importer for illegal import under the
Customs Act, 1962, and also under the Central Excise Act,              c
1944. This Court categorized the matter into two parts. The first
part related to imports made and cleared, where the
consignments had already found their way to the market. The
second part related to the stocks of hazardous waste lying at
various ports/ICDs/CFSs. The question which arose was as to            D
 how the said stock was to be cleared from where they were
 lying. This Court was cif the view that the stock in question could
 be divided into two categories; one, relating to imports of goods
which were banned under the H.W.M.H. Rules, 1989, as
amended up to date or falling under the banned category as
                                                                       E
 per the Basel Convention and the other relating to waste in
 respect whereof there was l)O ban and being regulated, it was
 permissible to recycle and reprocess the same within the
 permissible parameters by specified authorized persons
 having requisite facilities under the Rules, as amended up to
 date. The Court directed that the said consignments falling           F
 under the said category were to be released or disposed of or
 auctioned in terms of the Rules, to the registered recyclers and
 reprocessors. However, in case the importer of such goods
 remained untraceable, the authorities were directed to deal with
the same at the risk, cost and consequences of the importer. It        G
was specified that the consignment of such importer could not
 be allowed to remain at the ports etc. indefinitely, merely
 because the importer was not traceable.

     10. For the purpose of dealing with such consignments             H
    504     SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A where the importer could not be traced, this Court was of the
  view that the same should be dealt with, disposed of/auctioned
  by a Monitoring Committee which was appointed by the Court
  by the said order itself. The Monitoring Committee was
  comprised of existing members of the Committee constituted
B by the Ministry of Environment and Forests, along with one Dr.
  Claude Alvares, NGO and Dr. D.B. Boralkar. The Committee
  was directed to oversee that the directions of this Court were
  implemented in a time-bound fashion.

        11. One of the other issues which came up for
C .consideration before this Court was the MARPOL Convention
   which made it compulsory for signatory nations to allow
   discharge of sludge oil for the purposes of recycling. In the
   wake of the other issues which were taken up by this Court
   while considering the report of the High Powered Committee
D and that of the Wadhawan Committee, the issue relating to the
   provisions of the MARPOL Convention was set apart for
   decision at a later stage.

       12. The original MARPOL Convention was signed on 17th
E February, 1973, but did not come into force. Subsequently, in
  combination with, the 1978 Protocol, the Convention was
  brought into force on 2nd October, 1983. As will be noticed from
  the acronym, the expression "MARPOL" is the short form of
  "Marine Pollution". The same was signed with the intention of
F minimizing pollution on the seas, which included dumping, oil
  and exhaust pollution. Its object was to preserve the marine
  environment through the complete elimination of pollution by oil
  and other harmful substances and the minimization of
  accidental discharge of such substances. As far as this aspect
  of the matter is concerned, the Central Government was
G directed to file an affidavit indicating in detail how the said oil
  was dealt with. The issue relating to the import of such sludge
  oil was left unresolved for decision at a subsequent stage.

      13. However, during the course of hearing in regard to the
H import of waste oil purportedly in violation of the H.W.M.H.
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 505
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

Rules, 1989, the two dominating principles relating to pollution,   A
namely, the polluter-pays principle and precautionary principle,
were examined at length. The report of the Committee indicated
that the hazardous waste oil was imported into the country in
the garb of furnace oil and, in fact, the cc:mtainers and the
vessels in which they were being transported, were also highly      B
polluted, causing a tremendous risk to the environment and to
human existence. Ultimately, by the said order of 14th October,
2003, certain directions were given regarding the procedure
to be adopted, with regard to ship breaking, to the Central
Pollution Control Board, to prepare a national inventory for        c
rehabilitation of hazardous waste dump sites. The State
Pollution Control Boards were directed to ensure that all parties
dealing in hazardous chemicals which generated hazardous
wastes, displayed online data in that regard outside their
respective factories, on the pattern of Andhra Pradesh. The
                                                                    0
 Ministry of Environment and Forests were also directed to
consider making provision for Bank Guarantees. Certain
recommendations were also made with regard to legislation in
order to destroy any trans-boundary movement of hazardous
wastes or other wastes and to punish such illegal trafficking
 stringently.                                                       E

      14. The matter rested there and only interim directions
were given from time to time till it surfaced again before the
Court on 25th January, 2003. On this occasion, the focus of this
Court was directed towards the presence of hazardous waste          F
oil in 133 containers lying at Nhava Sheva Port, as noticed by
the High Powered Committee. On the directions of the Court,
the oil contained in the said 133 containers was sent for
laboratory test to determine whether the sarrie was
hazardous waste oil or not. After such examination it was found     G
to be hazardous waste. Considering the detailed report
submitted by the Commissioner of Customs (Imports), Mumbai,
and the Monitoring Committee, and after hearing learned
counsel for the parties, this Court observed that the issue to
be determined in .the .proceedings was limited to the               H
    506     SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A environment and in giving proper directions for dumping
  consignments in question, having regard to the precautionary
  principle and polluter-pays principle. The main question before
  the Court was whether only a direction was required to be
  issued for the destruction of the consignment in order to protect
B the environment and, if not, in what other manner could the
  consignments be dealt with. Having considered the provisions
  of the Basel Convention on the Control of Trans-Boundary
  Movement of Hazardous Wastes and their disposal, and the
  report of the Monitoring Committing recommending destruction
c of the consignments by incineration, but also keeping in mind
  the fact that import of waste oil was permitted for the purpose
  of recycling, this Court directed that where the consignment was
  found fit for recycling, the same should not be destroyed, but
  recycling should be permitted under the supervision of the
D Monitoring Committee. However, it was also recorded that if
  recycling was not considered advisable by the Government, the
  said consignment would also have to be destroyed by
  incineration along with other consignments. In such a case the
  cost of incineration was to be borne by the Government.

E      15. Taking further note of the precautionary principle
  forming part of the Vienna Declaration and also having regard
  to the polluter-pays principle, this Court directed that it would
  be feasible to dispose of the oil under the supervision of the
  Monitoring Committee by incineration which .would have no
F impact on the environment. It was directed that the 133
  containers in question be destroyed by incineration as per the
  recommendations of the Monitoring Committee and under its
  supervision, at the cost of the importer which was assessed
  by the Monitoring Committee at Rs.12/- per kilo, which would
G have to be paid by the importers in advance. In the order dated
  9th May, 2005, this Court took up for consideration the Fifth
  Quarterly Report of March 2005, filed by the Monitoring
  Committee from which it was seen that the waste oil contained
  in the 133 containers had not been destroyed in terms of the
H direction given on 5th January, 2005, on account of non-
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 507
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

payment of the cost of incineration by the importers. None of        A
the importers had made the payment for incineration, though,
a direction had been given to deposit the cost of incineration
within four weeks from the date of the order. However, while
taking serious note of non-payment of the incineration cost, this
Court also felt that the destruction of the waste oil could not be   B
delayed any further and directed immediate destruction of the
waste oil in terms 'of order dated 5th May, 2005, by the
Monitoring Committee and for the said purpose the cost of
incineration was to be initially borne by the Customs
Department, to be recovered from the importers.                      c
Simultaneously, a further opportunity was given to the importers
to deposit the cost of incineration with the Monitoring
Committee within two weeks, failing which they were directed
to remain present in the Court on 18th July, 2005, and to show-
cause why proceedings for contempt should not be taken               D
 against them. The Monitoring Committee was directed to file
 a report in that regard on the next date.

     16. One other aspect was also taken note of with regard
to the directions given to the Jawaharlal Nehru Port Trust,
Mumbai Port Trust and the Commissioner of Customs, to                E
furnish requisite information with regard to the 170 containers,
which were lying unclaimed, to the Monitoring Committee.
Since the same had not been filed within four weeks, as
directed, the Chairperson of the Jawaharlal Nehru Port Trust,
the Mumbai Port Trust and the Chief Commissioner of Customs          F
Department, were directed to file personal affidavits as to why
the order of the Court had not been complied with.
Subsequently, suo-motu contempt proceedings, being No.155
of 2005, in Writ Petition(C) No.657 of 1995, were initiated for
non-compliance of the directions contained in the order of 9th       G
May, 2005.

    17. As far as the suo-motu contempt proceedings are
concerned, the same are an off-shoot of the various orders
passed in the writ proceedings and the same will have to be
                                                                     H
    508      SUPREME COURT REPORTS                     [2012] 6 S.C.R.


A   considered separately from the reliefs prayed for in the writ
    petition itself.

       18. At the very beginning of this judgment we have set out
  the reliefs prayed for in the writ petition, which, inter alia, include
B a prayer for a direction upon the Union of India to ban imports
  of all hazardous/toxic wastes and for a further direction to
  amend the rules in conformity with the BASEL Convention and
  Articles 21, 47 and 48A of the Constitution. Apart from the
  above, a declaration has also been sought that without
C adequate protection of the workers and the public and without
  any provision of sound environment management of disposal
  of hazardous/toxic wastes, the Hazardous Wastes
  (Management & Handling) Rules, 1989, are violative of the
  Fundamental Rights guaranteed under the Constitution and,
  therefore, unconstitutional.
D
        19. Since the proceedings became a continuing
  mandamus, this Court from time to time took up several issues
  emanating from the first prayer in the writ petition to ban imports
  of all hazardous/toxic wastes. However, in the process, one of
E the Conventions, namely, the impact of the MARPOL
  Convention, though referred to, was not decided and left for
  decision at the final hearing.

         Accordingly, that aspect of the matter has to be decided
F   also in these proceedings.

       20. In one of the earlier orders passed on 5th May, 1997,
  two Hon'ble Judges had occasion to deal with the enormous
  generation of hazardous wastes in the country each day and
  Their Lordships were of the opinion that the said fact alone
G indicated sufficiently the magnitude of the problem and the
  promptitude with which it was needed to be tackled before the
  damage became irreversible. Their Lordships observed that
  prompt action was required to be taken, not only by the Central
  Government, but also by the State Governments and the Central -·
H and the State Pollution Control Boards. Accordingly, notice was •
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 509
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

given to all the State Governments and the State Control            A
Boards to file their replies, and directions were also given that
with effect from that date no authorization/ permission would be
given by any authority for the import of wastes which had
already been banned by the Central Government or by any
order made by any Court or any other authority. In addition, it     B
was also directed that with effect from the date of the order,
no import would be made or permitted by any authority or any
person of any hazardous waste, which was already banned
under the Basel Convention or was to be banned subsequently,
with effect from the date specified therein. Notice was also        c
issued to the State Governments to show cause as to why an
order should not be made directing closure of the units utilizing
the hazardous wastes where provision had already been made
for requisite safe disposal sites. In addition, the State
Governments were also directed to show cause as to why              D
immediate orders should not be made for the closure of all
unauthorized hazardous waste handli!"lQ units.

     21. Thereafter, during the pendency of the matter, a fresh
Special Leave Petition was filed, being SLP(C)No.16175 of
1997, by Dr. Surendra Dhelia against the Union of India and         E
others regarding import of contaminated waste oil and their
disposal, since despite directions given to the State
Governments and the Union of India, no affidavits were
forthcoming and, as a result, on 4th February, 2002, a direction
was given to the Secretary in the Ministry of Environment and       F
Forests to file affidavits in compliance with the orders passed
on 14th September, 2001 and 3rd December, 2001. A sum of
Rs.10,000/- was also imposed as costs against the Ministry of
Environment and Forests.
                                                                    G
     22. The matter came up again before the Court on 24th
September, 2003, in which the H.W.M.H. Rules, 1989, fell for
consideration having regard to Section 11 of the Customs Act,
1962, which empowers the Central Government to prohibit
either absolutely or subject to such conditions as may be
                                                                    H
               510     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


           A  specified in the notification, the import and export of the goods,
              if satisfied that it is necessary so to do for any of the purposes
: .   .-
            _ stated in Sub-Section (2). Since on behalf of the Central
              Government it was submitted that the import of 29 items had
              already been prohibited under Schedule 8 of the Hazardous
           B Waste Rules, the Court directed the Central Government to
              issue a notification without further delay under Section 11 of the
              Customs Act, 1962, prohibiting the import of the said 29 items.
              Their Lordships also noted that the BASEL Convention had
              banned 76 items. Their Lordships were of the view that the
           C remaining items were also required to be examined and, if
              necessary, to issue additional notifications to comply with any
              ban that may have been imposed in respect of remaining items.

                  23. What is more important is the fact that the Hon'ble
             Judges took note of the provisions of the Hazardous Waste
           D Rules which allowed import of certain items subject to fulfillment
             of certain conditions. This Court directed that before the
             imported consignment was cleared, the requisite notification
             was to be issued making the compliance of the said conditions
             mandatory. In particular, in paragraph 7 of Their Lordships'
           E order, a direction was given to the Competent Authority to the
             effect that while disposing of hazardous waste, in exercise of
             power under Sections 61 and 62 of the Major Port Trusts Act,
             1963, they were required to ensure that the H.W.M.H. Rules,
             as amended up to date, and in particular, Rules 19 and 20
           F thereof, were complied with.

                  24. The said direction becomes relevant in relation to the
             third prayer made in the writ pe~ition, as referred to
             hereinabove, relating to the constitutionality of the H.W.M.H.
           G Rules, 1989. One thing is clear that even at the interim stage,
             there was no challenge as such to the constitutionality of the
             aforesaid Rules and that, on the other hand, directions were
             given by the Court to ensure compliance thereof.

                 25,. Then came the orders relating to the import of 133.
           H containers of hazardous waste oil, in the garb of lubricating oil,
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 511
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

which led to the appointment of a Monitoring Committee to           A
oversee the destruction by incineration of the waste oil, as well
as the containers thereof. Detailed orders having been passed
in relation to the destruction of the waste and hazardous oil
imported into the country in the garb of lubricating oil, and the
directions given to the Monitoring Committee regarding re-          B
export of the same, we will consider the impact of the MARPOL
Convention against such background.

      26. The MARPOL Convention, normally referred to as
"MARPOL 73/78", may be traced to its beginnings in 1954,            C
when the first conference was held and an International
Convention was adopted for the Prevention of Pollution of Sea
by Oil (OILPOL). The same came into force on 26th July, 1958
and attempted to tackle the problem of pollution of the seas by
oil, such as,
                                                                    D
     (a) crude oil;
     (b) fuel oil;
     (c) heavy diesel oil; and
     (d) lubricating oil.
     27. The first Convention was amended subsequently in           E
1962, 1969 and 1971, limiting the quantities of oil discharge
into the sea by Oil Tankers and also the oily wastes from use
in the machinery of the vessel. Prohibited zones were
established extending the setting up of earmarked areas in
which oil could be discharged, extending at least 50 miles from     F
the nearest land. In 1971, reminders were issued to protect the
Great Barrier Reef of Australia. 1973 saw the adoption of the
International Convention for the Prevention of Pollution from
Ships. The said Convention, commonly referred to as
MARPOL, was adopted on 2nd November, 1973, at the                   G
International Marine Organization and covered pollution by:

     (i) oil;
     (ii) chemicals;
     (iii) harmful substances in packaged form;
                                                                    H
    512       SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A         (iv) sewage; and
          {v) garbage
          Subsequently, the 1978 MARPOL Protocol was adopted
     at a Conference on Tanker Safety and Pollution Prevention in
    ·February, 1978.
B
         28. The overall objective of the MARPOL Convention was
    to completely eliminate pollution of the marine environment by
    discharge of oil and other hazardous substances from ships
    and to minimize such discharges in connection with accidents
c   involving ships. The MARPOL 73/78 Convention has six
    Annexures containing detailed regulations regarding
    permissible discharges, equipment on board ships, etc. They
    are as follows :

          Annex I : Regulations for the Prevention of Pollution by Oil,
D         2 October, 1983.

          Annex II : Regulations for the Control of Pollution by
          Noxious Liquid Substances (Chemicals) in Bulk, 6 April,
          1987.
E
          Annex Ill : Regulations for the Prevention of Pollution by
          Harmful Substances Carried by Sea in Packaged Form,
          1 July 1992.

          Annex IV : Regulations for the Prevention of Pollution by
F         Sewage from ships, 27 September 2003.

          Annex V : Regulations for the Prevention of Pollution by
          Garbage from Ships, 31 December 1988.

          Annex VI : Regulations for the Prevention of Air Pollution
G         from Ships and Nitrogen oxide. Will enter into force on 19
          May 2005

        29. Apart from the said Regulations, the MARPOL
    Convention also contains various Regulations with regard to
H
RESEARCH FOUNDATION FOR SCIENCE, TECH.AND NATURAL 513
    RES. POLICYv. UNION OF INDIA[ALTAMAS KABIR, J.]

inspection of ships in order to ensure due compliance with the        A
requirements of the Convention.

      30. India is a signatory, both to the BASEL Convention as
also the MARPOL Convention, and is, therefore, under an
obligation to ensure that the same are duly implemented in
                                                                      B
relation to import of hazardous wastes into the country. As we
have noticed earlier, the BASEL Convention prohibited the
import of certain hazardous substances on which there was a
total ban. However, some of the other pollutants, which have
been identified, are yet to be notified and, on the other hand,       C
in order to prevent pollution of the seas, under the MARPOL
Convention the signatory countries are under an obligation to
accept the discharge of oil wastes from ships. What is,
therefore, important is for the concerned authorities to ensure
that such waste oil is not allowed to contaminate the
surrounding areas and also, if suitable, for the purposes of          D
recycling, to allow recycling of the same under strict supervision
with entrusted units and, thereafter, to oversee its distribution
for reuse.

       31. As far as the first two prayers in the writ petition are   E
  concerned, the same have already been taken care of by the
  orders dated 13th October, 1997 and 14th October, 2003. By
  the first of the two orders, this Court appointed the High-
  Powered Committee with Prof. M.G.K. Menon as its Chairman
  and 14 issues were referred to the said Committee. After the        F
  said Committee submitted its Report, another Committee under
  the Chairmanship of Mr. A.C. Wadhawan was appointed to
  enquire into the disappearance of hazardous wastes from
  various ports and container depots, and the question relating
· to the working conditions of the workmen who handle such            G
  wastes. After the Wadhawan Committee submitted its Report,
  various directions were given with regard to the handling of such
  hazardous wastes. Furthermore, the contamination risks
  involved in ship breaking also came into focus in the light of
  the provisions of the Hazardous Wastes Rules, 1989, and
                                                                      H
    514     SUPREME COURT REPORTS                  [2012) 6 S.C.R.


A directions were given as to how ships, which were carrying
  wastes, were to be dealt with before entering into Indian waters,
  which included the prohibition on the exporting country to export
  such oil or substance without the concurrence and clearance
  from the importing country. During the course of hearing, an
B issue was raised by Mr. Sanjay Parikh, learned counsel
  appearing for the petitioner, that some conditions may be laid
  down in relation to vessels containing hazardous wastes
  entering Indian waters without proper compliance with the
  provisions of the BASEL and the MARPOL Conventions.
C However, since the question of ship breaking and distribution
  of hazardous wastes are being considered separately in the
  contempt proceedings, in these proceedings we expect and
  reiterate that the directions contained in the BASEL Convention
  have to be strictly followed by all the concerned players, before
  a vessel is allowed to enter Indian territorial waters and beach
0
  at any of the beaching facilities in any part of the Indian coast-
  line. In case of breach of the conditions, the authorities shall
  impose the penalties contemplated under the municipal laws
  of India.

E      32. The directions contained in the second order is based
  on the polluter pays principle, which is duly recognized as one
  of the accepted principles for dealing with violation of the
  BASEL Convention and the H.W.M.H. Rules, 1989, and the
  same will be applicable whenever such violations occur.
F However, till such time as a particular product is identified as
  being hazardous, no ban can be imposed on its import on the
  ground that it was hazardous. Such import will, however, be
  subject to all other statutory conditions and restrictions, as may
  be prevailing on the date of import. Accordingly, the general
G prayer made in the writ petition that the Government of India
  should put a total ban on all hazardous wastes, can be applied
  in respect of such hazardous wastes as have been identified
  by the BASEL Convention and its Protocols over the years and/
  or where import into the country have been restricted by the
H municipal laws of India. In respect of such banned items,
RESEARCH FOUNDATION FOR SCIENCE, TECH. AND NATURAL 515
    RES. POLICY v. UNION OF INDIA [ALTAMAS KABIR, J.]

directions have already been given in the order dated 13th           A
October, 1997, to issue a notification to ban the import of such
identified hazardous substances. In the event, any other items
have since been identified, the Central Government is directed
to issue appropriate notifications for banning the import of such
hazardous substances as well.                                        B

     33. The third prayer, that in the event of non-compliance,
the provisions of the Hazardous Wastes (Management &
Handling) Rules, 1989, should be declared as unconstitutional,
cannot be granted, since the same are in aid and not in              C
derogation of the provisions of Articles 21, 39(e), 47 and 48A
of the Constitution. In fact, as mentioned hereinabove, even at
the interim stage, directions were given for compliance with the
said Rules, particularly in the matter of destruction of the waste
oil contained in 170 containers by incineration at the cost of
the importer.                                                        D

      34. The writ petition has been entertained and has also
been treated by all concerned not as any kind of adversarial
litigation, but litigation to protect the environment from
contamination on account of attempts made to dump hazardous          E
wastes in the country, which would ultimately result in the
destruction, not only of the environment, but also the ecology
as well and, in particular, the fragile marine bio-diversity along
the Indian Coast-line. The petitioner Foundation has played a
very significant role in bringing into focus some very serious       F
questions involving the introduction of hazardous substances
into the country, which needed the Courts' attention to be drawn
having regard to the BASEL Convention, aimed and protecting
marine biology and countries having coast-lines alongside seas
and oceans.
                                                                     G
     35. The writ petition is, therefore, disposed of by
reasserting the interim directions given with regard to the
handling of hazardous wastes and ship breaking in the various
orders passed in the writ petition from time to time and, in
particular, the orders dated 13th October, 1997 and 14th             H
    516      SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A October, 2003. The Central Government is also directed to ban
  import of all hazardous/toxic wastes which had been identified
  and declared to be so under the BASEL Convention and its
  different protocols. The Central Government is also directed to
  bring the Hazardous Wastes (Management & Handling) Rules,
B 1989, in line with the BASEL Convention and Articles 21, 47
  and 48A of the Constitution. The further declaration sought for
  that without adequate protection to the workers and public, the
  aforesaid Rules are violative of the Fundamental Rights of the
  citizens and are, therefore, unconstitutional, is, however,
c rejected in view of what has been discussed hereinabove.

         36. In the peculiar facts of the case, there will be no order
    as to costs.

    D.G.                                 Writ Petition disposed of.