Holding

The Court held that the hazardous waste oil must be destroyed by incineration under the Monitoring Committee’s supervision, and the importers must bear the cost.

Summary

The Supreme Court examined a writ petition concerning 133 containers of waste oil imported at Nhava Sheva port in 2000, which were later identified as hazardous waste containing PCBs. The petition sought relief from re‑export or destruction, arguing that PCB levels were within the 50 ppm limit of the Basel Convention. The Court held that national law, specifically the Hazardous Wastes (Management and Handling) Rules, 1989, which deem any waste oil with detectable PCBs as hazardous, prevails over the Convention’s guidelines. Applying the precautionary principle and the polluter‑pays principle, the Court directed that the consignments be destroyed by incineration under the supervision of a Monitoring Committee, with the importers bearing the cost. The order also required the authorities to obtain details of an additional 170 containers and to report on their disposal. The petition was disposed of, and the incineration directive was affirmed.

Issues considered

The appropriate method of disposal for the imported waste oil – incineration versus re‑export or recycling.
Whether the Basel Convention’s PCB limit of 50 ppm can be invoked to avoid classification as hazardous waste under Indian law.
The applicability of the precautionary principle and polluter‑pays principle to the case.
Whether the importers are liable to pay for the cost of incineration and related testing.
The primacy of the Hazardous Wastes (Management and Handling) Rules, 1989 over international guidelines.

Legislation cited

Subjects

hazardous wastewaste oilincinerationprecautionary principlepolluter pays principleBasel Conventionenvironmental lawIndian Supreme Courtmonitoring committeeenvironmental protection

Judgment

RESEARCH FOUNDATION FOR SCIENCE TECHNOLOGYAND A
NATURAL RESOURCES POLICY
V.

UNION OF INDIA AND ANR.

JANUARY 5, 2005
B
[Y.K. SABHARWAL AND S.H. KAPADIA, JJ.)

Environmental Law:

Hazardous Wastes (Management and Handling) Rules, 1989-Rule C
J5(2)-Environment Pollution-Import of J33 containers of waste oil in the
garb of Lubricating oil/Furnace oil-Lying at the Nheva Sheva Port for 4
months-Laboratory tests confirmed the Hazardous nature of oil-Many of
the containers exploded causing grave damage to the environment-Writ
Petition seeking disposal option for such waste oil to prevent serious damage D
to environment-Held, appropriate course to protect environment is destruction
of consignment by incineration-Re-export of oil was possible within 30 days
-..i. and after 4 years 'delay' same is ruled out, the only option is one time
disposal-Authorities directed to expedite incineration-Importers liable to
deposit cost of incineration on 'Pollutor Pays' principle-Environment
Protection Act, J986. E
International convention:

Basel convention-Parameters fixed by, are only guidelines-National
law laying stricter condition to prevail.
F
Law of Torts:

Precautionary principle and Pollutor pays principle-Meaning of-
Explained-Environmental law.

The question which arose in present Writ Petition is limited to G
environment issue i.e. whether the hazardous waste oil allegedly imported
illegally as Lubricating oil/Furnace oil needs to be incinerated/destroyed
in the interest of Environment and whether this matter could be
compromised having regard to the laws of other country.

115 H
116 SUPREME COURT REPORTS [2005] I S C.R.

A Disposing of the Writ Petition, the Court

HELD: I. The only appropriate course to protect the environment
is to direct the destruction of the consignments by incineration. 1138-BI

2.1. The Hazardous Wastes (Management and Handling) Rules, 1989,
B lays down that presence of PCB contents in waste mineral oil would render
such oil as hazardous waste. ]127-El

2.2. In the instant case, most of the consignment, were found to be
hazardous waste. The only consignment imported by Eleven Star Esscon
was found not to be hazardous but off specification fit for re-refining. In
C respect of one container of Oil imported by Royal lmplex though the
samples were not sent to the llP for further analysis in respect of Organic
halides and PCB determination, the report concluded that it would not
be advisable to conduct those tests at that late stage as the prolonged
storage may have deteriorated the material further and on the basis of
D the test results available it was obvious that the material was not fit for
re-refining. In addition to the 133 containers, another group of imports
by various parties comprising of an additional 170 containers, which had
been imported after the import of 133 containers, are also lodged with
the Custodians in the same area and are more or less in the same condition.
,.
(127-F-G; 129-H; 130-AI
E
3.1. Report of Commissioner of Customs refers to Rule 15(2) which
provides re-shi"pment of waste within 30 days to the exporter from the date
of off-loading or disposal within 30 days. The report further states that
even though there are provisions both in International Conventions, like
Basel Convention, and in our national laws, a holistic view needs to be
F taken in .view of the prevailing circumstances. The exporters of the cargo
in question may not take the cargo after 4 years. The re-export of cargo
at this point of time and under the conditions in which the cargo was lying
has been ruled out also stating that issues like transportation charges and
the ownership and acceptability of the cargo at the destination point may
G be highly vexed and difficult to surmount. In this backdrop, the possibility
of disposal locally as a one-time measure was examined. [128-C, E, F-GI
3.2. The report of Commissioner of Customs has been considered
by the Monitoring Committee, and it has recommended disposal of all
consignments except one by incineration in consultation with two Pollution
H Control Boards mentioned in its report. It has noticed that adequate
RESEARCH FOUNDATION v. U.0.1. 117
__., facilities are not available even with registered refiners for re-refining oil A
containing PCBs. Notice has also been taken of the fact that the Director,
llP, Dehradun has mentioned that since all 133 containers have been lying
at Mumbai Port since 2000, the oil would have undergone considerable
degradation in last four years. Another important factor that has been
taken into consideration is about the cost of re-refining being exorbitant
and, therefore, it was not economically feasible to re-refine the oil in B
question. [130-B-D)

4. I. The Monitoring Committee comprises of experts in the field. It
has recommended destruction of the consignment by incineration. The
PCBs may be within permissible limit insofar as parameters of Basel
Convention are concerned but, at the same time, it has to be kept in view
c
that parameters fixed by the Basel Convention are only guidelines and the
individual countries can provide different criterion in their national law
to lay down the limits of concentration of PCBs so as to label it as
hazardous waste. Even European Community is considering to reduce
PCBs concentration from 50 PPM to 20 PPM to make it consistent with D
the limits on oils being used as fuel. Insofar as our country is concerned,
the provision is that the presence of PCBs shall be of non-detectable level.
"" The national law laying stricter condition has to prevail. The
Commissioner of Customs, on detailed examination, has concluded that
the import was in complete and flagrant violation of law. The import is
of hazardous waste. Further, many of the drums have exploded and the
E
contents spread in the area which besides being a fire hazard is also
causing grave damage to the environment. PCBs are environmentally ·
extremely persistent and bio-accumulative, toxic (and a suspected
carcinogen), and if burnt under unsuitable conditions, will give rise to toxic
products of combustion including dioxins and dibenzofurans. Great care F
is required in assessing and selecting disposal options for such oils.
[130-G-H; 131-A-C[

4.2. The CPCB which is implementing the Registration Scheme for
actual users of hazardous wastes including used/waste oil, opined that
adequate facilities are not available even with registered refiners for re- G
refining oil containing PCBs. That apart, oil regeneration technologies
depend to some degree of quality of waste oil. Regeneration process
--\
involves the application of reasonably sophisticated technology and require
care and expertise in their operation. The illegally imported oils remained
on the Port for four years and would have undergone considerable H
118 SUPREME COURT REPORTS [2005] I S.C.R.

A degradation during this period. Nothing tangible has been shown so as to
take a view different than the one recommended by the Monitoring
Committee. At this stage, the consignment cannot be allowed to be re-
exported though agreed to by the Monitoring Committee. It also cannot
be allowed to be recycled. The oil deserves to be incinerated.
1131-D-E; 132-DI
B
4.3. In respect of import effected by Eleven Star Esscon, heavy metal
concentrations are within recycling limits. It does not have organic halides
and PCBs. Recommendation of the Commissioner of Customs is for its
recycling. The Monitoring Committee has, however, recommended its
C incineration possibly in view of its deterioration for about four years when
the consignment was lying at the Port. [132-EI

5 Recycling deserves to be permitted as recommended by
Commissioner of Customs but the same shall be done under the
supervision of the Monitoring Committee. Having so permitted, the cost
D of recycling may be very exorbitant and it may not be economically viable.
If recycling is not considered advisable by the Government, the
consignment sh~ll have to be destroyed by incineration in the same manner·
as other consignments. The decision whether the Government desires the
consignment to be recycled shall be taken within a period of four weeks
failing which the consignment shall be destroyed by incineration along with
E other consignments. 1132-G-H; 133-AI

6.1. The liability of the importers to pay the amounts to be spent
for destroying the goods in question cannot be doubted on applicability
of Precautionary principle and Polluter pays principle. These principles
F are part of the environmental law of India. There is constitutional mandate
to protect and improve the environment. In order to fulfill the
constitutional mandate various legislations have been enacted with attempt
to solve the problem of environmental degradation. 1133-8-C)

6.2. In respect of the precautionary principle, Rio Declaration
G (Principle No.15) provides that where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as
reason for postponing cost effective measures to prevent environmental
degradation. This principle generally describes an approach to the
protection of the environment or human health based around precaution
even where there is no clear evidence of harm or risk of harm from an
H activity or substance. It is a part of principle of sustainable development,
RESEARCH FOUNDATION v. U.0.1. 119
it provides for taking protection against specific environmental hazards A
by avoiding or reducing environmental risks before specific harms are
experienced. (133-D-E(

6.3. Having regard to the aforesaid principle, the import of waste
oil containing PCBs of detectable limit has been banned in India. The fact
that PCBs content in the consignments was only marginal or minimal and B
under Basel Convention its permissible limit is 50 PPM, is of no
consequence. Judging by Indian conditions, our law has provided the limit
of PCBs which if of detectable limits, the import is not allowed. The
national law has to apply and shelter cannot be taken under guidelines of
Basel Convention. (133-F( C
6.4. The polluter pays principle basically means that the producer
of goods or other items should be responsible for the cost of preventing
or dealing with any pollution that the process causes. This includes
environmental cost as well as direct cost to the people or property, it also
covers cost incurred in avoiding pollution and not just those related to D
remedying any damage. It will include full environmental cost and not just
those which are immediately tangible. The principle also does not mean
that the polluter can pollute and pay for it. The nature and extent of cost
and the circumstances in which the principle will apply may differ from
case to case. (133-G-H; 134-A)
E
MC. Mehta and Anr. v. Union of India and Ors., (1987) 1 SCC 395;
Indian Council for Enviro-Legal Action and Ors. v. Union of India and Ors.,
(19961 3 SCC 212; Velllore Citizens' Welfare Forum v. Union of India and
Ors., 11996) 5 5 SCC 647 and Research Foundation For Science Technology
National Resource Policy v. Union of India and Anr., (2003) 9 SCALE 303, F
referred to.

Deepak Nitrite Ltd v. State of Gujarat and Ors., (2004) 6 SCC 402,
distinguished.

A.P. Pollution Control Board v. Prof M. V. Nayudu (Retd.) and Ors..
(1996( 5 sec 718 and People's Union for Civil liberties v. T)nion of India G
and Anr., (1997( 3 SCC 433, Cited.

Rylands v. Fletcher, (1868) L.R. 3 H.L. 330, referred to.

6.5. By disposal of the oil under the supervision of Monitoring
Committee at the incinerators which have adequate facilities to destroy H
120 SUPREME COURT REPORTS [2005] 1 S.C.R.

A the oil at a required temperature, there would be no impact on
environments. In regard to 170 containers referred to in the report of the
Commissioner of Customs which are also lodged in the same premises in
more or less same condition, the Monitoring Committee has noted that
these containers have not been claimed by the importers. The details of
the importers of these consignments are not on record. The concerned
B authorities, are directed to furnish to the Monitoring Committee up to date
information as to the import of the 170 containers, how the consignment
was dealt with, right from the date of the arrival till date. The Monitoring
Committee shall file a report along with its recommendations and on
consideration thereof, necessary directions would be issued. [138-C-F)
c 6.6. As per the recommendations of the Monitoring Committee, the
133 containers are directed to be expeditiously destroyed by incineration
under its supervision subject to and in terms of this order. The cost of
incineration shall be deposited by the importers with the Monitoring
Committee within four weeks. In regard to the consignment of Eleven Star
D Esscon, in case option for recycling is exercised by the Government, the
recycling would be done under the supervision of the Monitoring
Committee. If the request for recycling is not received by the Monitoring
Committee within four weeks, the said consignment would also be
destroyed in the same manner as the other consignments.
E
[138-F-H; 139-A) '
CIVIL ORIGINAL JURISDICTION Writ Petition (C) No. 657 of
1995.

(Under Article 32 of the Constitution of India)

F WITH

S.L.P. (C) No. 16175 and C.A. No. 7660 of 1997.

R. Mohan, Additional Solicitor General, Sunil Gupta, Sanjay Parikh,
Vikas Shanna, Ms. Anil Katiyar, B. Krishna Prasad, Ms. B. Vijayalakshmi
G Menon, Anil Kumar Jha, Vikas Sharma, Ashok Mathur, Al'llp Banerjee, Kumar
Rajesh Singh, B.B. Singh, Trun Gulati, Ms. Bina Gupta, Mrs. Divya Roy, S.
Subba Rao, Ms. Sushma Suri, S. Madhusudhan Babu, D.N. Mishra, Ejaz
Maqbool, C. Nayak, S. Madhusunan, Ms. Atishi Dipankar, S.K. Agnihotri,
Rohit K. Singh, Amit Mishra, R.C. Verma, Mukesh Venna, Manish Shanker,
Kh. Nobin Singh, Ms. A. Subhashini, Buddy A. Ranganandhan, V.G.
H Pragasam, U. Hazarika, Satya Mitra, Ms. Sumita Hazarika, Ajay Shanna,
RESEARCH FOUNDATION v. U.0.1. [SABHARWAL, J.) 121

Rajeev Sharma, Ms. Neelam Sharma, Nidhesh Gupta, Vinod Sukala, Ms. S. A
Janani, Yijay Panjwani, Aruneshwar Gupta, Addi. Advocate General for State
of Rajasthan, Naveen Kumar Singh, Ms. Shivangi, Anil Shrivastav, R.A.
Perumal, S. Vallinayagam, Janaranjan Das, Swetaketu Mishra, Ms. Moushumi
Gahlot, D.K. Sinha, Kamlendra Mishra, Rajeev Kumar Dubey, Ms. Rashmi
Singh, A. Mariarputham, Ms. Aruna Mathur, D.N. Goburdhan, Ms. Pinky B
Anand, Ms. Geeta Luthra, Ms. Krishna Sarma, Ms. Riku Sanna, Ms, Sushila
Ram, Nikhil Nayyar, L.N. Joshi, Ms. Hemantika Wahi, Gopal Singh, K.B.
Rohtagi, Mrs. Manik Karanjawala, Pramod Swarup, Pradeep Misra, T.V.
Ratnam, Mrs. Unnila Sirur, Shakil Ahmed Syed, Rakesh K. Sharma, Mukesh
K. Giri, Radha Shyam Jena, Sanjay R. Hegde, Javed Mahmud Rao, K.K.
Gupta and Jayant Bhushan for the appearing parties. c
The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. Considering the alanning situation created by
dumping of hazardous waste, its generation and serious and irreversible damage
as a result thereof to the environment, flora and fauna, and also having regard D
to the magnitude of the problem as a result of failure of the authorities to
appreciate the gravity of situation and the need for prompt measures being
taken to prevent serious and adverse consequences, a High Powered Committee
(HPC) was constituted by this Court with Prof.M.G.K. Menon as its Chainnan,
in terms of order dated 30th October, 1997. The Committee comprised of
experts from different disciplines and fields and was required to examine all E
matters in depth relating to hazardous waste.

On consideration of the detailed reports submitted by the HPC various
directions have been issued by this Court from time to time. Presently, we are
concerned with the presence of hazardous waste oil in 133 containers lying F
at Nhava Sheva Port as noticed by HPC. On the directions of this Court, the
oil contained in the said 133 containers was sent for laboratory test to detennine
whether same is hazardous waste oil or not. It has been found to be hazardous
waste.

On consideration of report of HPC, the result of laboratory test and G
entire material on record, this Court came to the prima facie conclusion that
importers illegally imported waste oil in 133 containers in the garb of
lubricating oil. In tenns of the order dated 25th September, 2003, notices
were directed to be issued to 15 importers who imported the said consignment
as also to the Commissioner of Customs. The importers were directed to
show cause why the consignment shall not be ordered to be re-exported or H
122 SUPREME COURT REPORTS (2005] I S.C.R.

A destroyed at their cost. Since, the Ministry of Environment and Forests had
spent a sum of Rs.6.35 lakhs on the laboratory tests, the importers were also
required to show cause why the said amount be not recovered from them and
why all of them shall not be directed to make payment of compensation on
polluter pays principle and other action taken against them.

B The affidavits showing cause were filed by the importers. During the
course of hearing, one of the contentions urged on behalf of the importers
was that in respect of consignments in question, adjudicating proceedings
were pending before Commissioner of Customs, Mumbai and this Court
may, therefore, defer the decision on the aspect of re-export or destruction of
C the goods. Jn the order dated I Ith March, 2004, it was observed that for the
purpose of present proceedings, it is strictly not necessary to await the final
decision of adjudication proceedings but a report from the Commissioner of
Customs may assist the court in deciding the aspects indicated in the order
dated 25th September, 2003. In this view, the Commissioner of Customs was
directed to send a report to this Court on the question whether the consignment
D in issue is waste oil within the meaning of the term 'waste oil' as per Basel
Convention or Hazardous Waste Rules, 1989 as amended in the year 2000
and/or as amended in the year 2003 also having regard to the relevant
notifications issued on this aspect. The Commissioner of Customs was directed
to give reasonable opportunity to the importers to put forth their viewpoint
E before him while examining the matter and was further directed to associate
. the Monitoring Committee that was constituted in terms of orders dated 14th
October, 2003 reported in 2003 (9) SCALE 303. The question whether any
further testing is required to be done as claimed by the importers was left to
be decided by the Commissioner in consultation with the Monitoring
Committee.
F
Detailed reports have been filed by Commissioner of Customs (Imports),
Mumbai and the Monitoring Committee. We have perused the relevant material
including those reports and have heard learned counsel for the petitioner,
learned Additional Solicitor General appearing for the Ministry of Environment
and Forests as also learned counsel appearing for the Commissioner of Customs
G and other learned counsel representing the importers. It deserves to be noted
that the question to be determined in these proceedings is limited to the
environment issue. The issue is in regard to the appropriate 0directions for
dealing with the consignments in question, having regard to the precautionary
principle and polluter pays principle. The main question is whether directions
H shall be issued for the destruction of the consignments with a view to protect
RESEARCH FOUNDATION v. U.O.L [SAI3HARWAL. J.] 123
the environment and, if not, in what other manner the consignments may be A
dealt with.

The report of the Commissioner of Customs sets out a brief history of
the case, history of various Conventions and Laws formulated thereupon
from time to time, correlating the same to the various test findings.
B
The brief history, inter alia, states that :

"In the month of August-September 2000, the Central Intelligence
~ Unit, New Custom House, Mumbai developed intelligence that large
volumes of Furnace Oil were to be imported as containerized cargo,
at the Jawaharlal Nehru Port at undervalued prices. Accordingly the c
Central Intelligence Unit maintained a discreet watch at such
consignments of Furnace Oil imported at JN Port. Emphasis was laid
on Furnace oil stuffed in containers', as the same was quite unusual.
Furnace Oil is basically imported in bulk on account of its large
volumetric requirements by the industry and its relatively low value
D
makes its import as containerized cargo economically unviable unless
the value is suppressed, or some other mis-declaration was restored
to, to offset the increased cost of packing and transportation in
containers. True to the intelligence gathered, a large number of
consignments of Furnace oil, packed in containers arrived at JN port
in Aug-Sept and the same were detained for further investigation. In E
all these cases the declared prices were in the range of US$ 90 to 125
per MT as against the erstwhile international price of US$ 150, when
imported in bulk.

During the course of the investigation, samples were sent to the
departmental laboratory for conducting tests. The standard reference F
parameters available pertained to those of Fuel Oil under BIS 1593-
1982. Under these standards certain characteristics like Acidity, Ash
clmtent, Flash point, Kinematic viscosity, Sulphur content and Water
content for Fuel oils have been prescribed by the Bureau of Indian
Standards and depending on the specifications the fuel oils get divided
G
into four grades. It is pertinent to note that these standards do not
define waste oil or hazardous wastes.

.. Initial testing ·of samples, by the Custom House Laboratory, drawn
from some of tlie consignments indicated that the goods were not
Furnace oil. The Laboratory, however, could not categorically state
whether the samples were used/waste oil, as they did not have the H
124 SUPREME COURT REPORTS [2005) I S.C.R.

A standards/specifications of used/waste oil. Inquiries made with 1.0.C.
and H.P.C.L also revealed that though they could test and report
whether the oil was conforming to the standards of Fuel/Furnace oil
but they were not in a position to state whether the same were used/
waste oil. As categorical test reports were not forthcoming it was
decided to get the samples tested and an opinion obtained from the
B Central Revenue Control Laboratory (CRCL), New Delhi. Fourteen
samples, pertaining to Vidya Chemical Corporation, PCS Petrochem,
Shiv Priya Overseas, Royal Implex, Eleven Star Escon and Valley
International, were accordingly forwarded to CRCL for testing and
their opinion on 24.08.2000. The test results forwarded by the CRCL
c in all the 14 samples indicated that none of the samples tallied with
the specifications of Furnace Oil and all were off specification material
i.e. waste oil. Thereafter the CIU seized all the consignments involving
158 containers. One consignment comprising of 25 containers was
conditionally released on execution of Bank Guarantee for the
differential Duty. Thus a total of 133 containers were left.
D

On 5.10.2001 the MPCB forwarded a final report from the IIP to
the Custom House wherein it was stated that the halogen content tests
E were done at the Shriram Institute of!ndustrial Research (SIIR), New
Delhi and the PCB content tests were done at the National Institute
of Oceanography, Goa. The report concluded that all the 20 samples
sent to the IIP were found to be hazardous. In all these cases, where
SCNs had earlier been issued, addendums were issued afresh keeping
in view the fact that since hazardous wastes imported in violation of
F
the provisions of the Environment (Protection) Act, I986 had to be
re-exported or dealt with as provided for in the Hazardous Wastes ,;...
(Management and Handling) Rules, 1988. Personal hearings were
held in several cases by the Commissioner, Mumbai for adjudication
of these cases .. "
G
In regard to Basel Convention, the report states as under :

"The Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal was adopted by
the conference of the Plenipotentiaries on 22.03 .1989. Article I of the
H Convention, dealing with the scope of the conventian, defined
' ' l.

RESEARCH FOUNDATION v. U.0.1. [SABHARWAL, J.] 125

'Hazardous Wastes' as follows: A
(a) Wastes that belong to any category contained in Annexure I,
unless they do not possess any of the characteristics contained in
Annexure III; and

(b) Wastes that are not covered under paragraph (a) but are defined
as or are considered to be, hazardous wastes by the domestic
B
legislation of the party of export, import or transit.

,.. ln the Annexure I to the Convention, referred to above at (a),
dealing with categories of wastes to be controlled, the following
categories of Wastes are pertinent to the subject matter:
c
(a)YS Waste mineral oils unfit for their originally intended used

(b)Y9 Waste oils/water, hydrocarbons/waster mixtures, emulsions

(c)YIO Waste substances and articles contained or contaminated with
polychlorinated biphenyls (PCBs) and/or polychlorinated terphenyls
(PCTs) and/or polybrominated biphenyls (PBBs) D
Annex III gives the list of Hazardous Characteristics such as
Explosive, Flammable liquids, Flammable solids, Substances or wastes
liable to spontaneous combustion, Substances or wastes which in
contact with water emit flammable gases, Oxidizing, Organic
Peroxides, Poisonous, Infectious substances, Corrosives, Liberation E
of toxic gases in contact with air or water, Toxic (Delayed or Chronic),
Ecotoxic.

The wastes are further specifically covered under Annex VIII in
List A which states that 'Wastes contained in this Annex are
characterized as hazardous under Article I, paragraph !(a), of this
F
J.. Convention; and their designation on this Annex does not preclude
the use of Annex III to demonstrate that a waste is not hazardous.'
In this List A specific attention is drawn towards the category A3
which deals with 'Wastes containing principally organic constituents,
which may contain metals and inorganic materials. ' Sub-division A G
3020 of this category deals with 'Waste mineral oils unfit for their
originally intended use. '
..._
It is nobody's case that the material imported is not mineral oil
or of mineral origin. In other words the category of Wastes to be
concentrated upon· is A 3020 as it specifically deals with mineral oils. H
)

126 SUPREME COURT REPORTS [2005) I S. C.R.

A After identifying the exact category of the material it remains to be
L
seen whether the imported material possesses any of the characteristics
as mentioned in Annex III to the Convention. All the test reports
obtained from the Indian Institute of Petroleum, Dehradun, indicate
that the materials have PCB.

B In respect of the impact of the presence of PCBs on the waste oil,
reference is made to the 'Technical Guidelines on Hazardous Waste:
Waste Oils from Petroleum Origins and Sources (Y8)' issued by the
Basel Convention. Paragraph 10, outlining the characteristics of PCBs
is reproduced for reference - Particular concern centers on a family
of substances known as polychlorinated biphenyls (PCBs) which
c combine excellent insulation and heat transfer characteristics, with
high stability and non-inflammability. However they are
environmentally extremely persistent and bio-accumulative, toxic (and
a suspected carcinogen), and if burned under unsuitable conditions,
will give rise to toxic products of combustion including dioxins and
D dibenzofarans ....... Paragraph 30 indicates that several countries have
brought about Legislation to define the concentration of the PCB
below which no concern need be felt and that 50 ppm is the fairly
established limit.

All these definitions and various clauses in the Convention indicate
E that the contents of the convention cannot be seen in isolation to the
follow-up laws framed in this regard by the individual member
countries. The contents of the Convention are only in the form of
guidelines to the member nations and the final question of whether
the material is Hazardous Waste or not cannot be answered on the
basis of the contents of the Convention alone. With reference to the
F presence of PCBs in waste oils, the National Laws framed need to be
examined to categorically state whether the subject cargo is hazardous
or not. The contention of all the importers that their material had not
violated the 50 ppm limit prescribed in the Basel Convention and
were thus not Hazardous Waste has not strength if the same are not
G examined in the light of the Laws framed by the Country in the
process of aligning with the recommendations of the Convention as
the contents of the Convention are by themselves not any Law that
.:ould be implemented (to be discussed later)." :..

The report makes a detailed reference to The Hazardous Wastes
H (Management and Handling) Rules, 1989 as introduced in 1989 and
RESEARCH FOUNDATION v. U.0.1. [SABHARWAL.J.) 127
amendments effected in January 2000 and in the year 2003. In regard to A
amendments made in January 2000 whereafter the imports were made, the
report notices as under :

"For the purpose of import, Rule 3(i) (c) defined Hazardous Waste
as those listed in List 'A' and 'B' of Schedule-3 (Part A) if they
possessed any of the hazardous characteristics listed in Part-B of B
Schedule.

List A of Schedule 3 is a reflection of List A as Annex !II of the
Basel Convention and the hazardous wastes appearing in this list of
Schedule 3 are restricted and cannot be allowed to be imported into
the country without DGFT Licence. In this list attention is drawn to C
the entry 'Waste mineral oils unfit for their originally intended use'
against Basel No A 3020. Such Waste mineral Oils would be
characterized as hazardous if they possess any of the Characteristics
enumerated in Part B of Schedule 3. The presence of PCB contents
in Waste mineral oils renders the material carcinogenic, bio D
accumulative and ecotoxic. Therefore, any consignment of Waste
mineral Oil having PCB would be rendered Hazardous."
(Emphasis supplied).

Thus, from the rules, it is clear and evident that the presence of PCB
contents in any consignment of waste mineral oil would render such oil as E
hazardous waste.

On the aforesaid basis, most of the consignments have been found to
be hazardous waste. The only consignment imported by Eleven Star ~sscon
was found not to be hazardous but off specification fit for re-refining. Jn
respect of one container of Oil imported by Royal Imp lex though the samples F
were not sent to the IIP for further analysis in respect of Organic halides and
PCB determination, the report concluded that it would not be advisable to
conduct those tests at that late stage as the prolonged storage may have
deteriorated material further and on the basis of the test results available it
was obvious that the material was not fit for re-refining. G
The report of the Commissioner of Customs has characterized the goods
as hazardous waste. The conclusions arrived at by Commissioner of Customs
are as under:

"The erstwhile Law therefore had enough provisions to determine H
128 SUPREME COURT REPORTS [2005] I S C.R.

A whether any given sample of Fuel Oil had hazardous characteristics ,L.

or not. And based on the directions inherent in these Laws, it has
been conclusively proved that all the subject 133 containers of Furnace
oil contain Hazardous Waste Oil. It is also abundantly clear that this
conclusion was arrived at under the provision of the Law prevalent
at that time. The importers had therefore imported Hazardous Wastes
B in complete and flagrant violation of the Law. I, therefore, hold and
conclude that the goods, viz. Furnace oil imported and contained in
the said 133 containers are hazardous."

Noticing that the entire cargo had been imported without proper licence
and its movement to the Country is illegal, reference has been made in the
c report to Rule 15(2) which provides that (i) the waste in question shall be
shipped back within thirty days either to the exporter or to the exporting
country or (ii) shall be disposed of within thirty days from the date of off-
loading subject to inability to comply with sub-rule 2(i), in accordance with
the procedure laid down by the State Pollution Control Board or Committee
D in consultation with Central Pollution Control Board.

In regard to the possibility of re-export of the cargo, reference has been
made to Article 9(2)(a) of the Basel Convention which provides that in the
case of illegal traffic as a result of conduct on the part of the exporter, the
state of export shall ensure that the waste in question is taken back by the
E exporter within 30 days from the time the state of export was informed. It has
been stated that even though there are provisions, both in international
Conventions, like Basel Convention, and in our national laws, a holistic view
needs to be taken in view of the prevailing circumstances. The exporters of
the cargo may not take the cargo after 4 years. Besides a whole range of time
F consuming protocol measures may be involved. The re-export of cargo at this
point oftime and under the conditions in which the cargo was lying has been
ruled out also stating that issues like transportation charges and the ownership
and acceptability of the cargo at the destination point may be highly vexed
and difficult to surmount. In this backdrop, the possibility of disposal locally
as a one-time measure was examined.
G
Regarding the disposal of the imported hazardous waste, the report
st~tes that certain drastic one-time measures are required to be taken. Both
j..
the modes of disposal, i.e. by subjecting the waste to re-cycling and
alternatively by incinerating it, were examined. It has been suggested that
overlooking the PCB presence up to 50 ppm, if the waste oil conformed to
H
RESEARCH FOUNDATION v. U.O.l [SABHARWAL. J.] 129

the other specifications mentioned in schedule 6, then such consignments A
may be considered for recycling. These consignments could be adjudicated
and released to the importers only under the condition that they would get the
material recycled, under the control and supervision of the Central Pollution
Control Board authorities, in Units registered with MOEF and having consent/
authorization from by the State Pollution Control Board. Further suggestion B
is that consignments not conforming to the specifications of Schedule 6 and/
or having PCB in excess of 50 ppm may be subjected to incineration at the
importer's cost at the Hazardous Incinerator under supervision of the State
Pollution Control Board. In cases where the cargo is required to be incinerated,
besides cleaning the pollution caused due to leakages, the suggestions is that
the importer may also be directed to bear the cost of transportation to the C
incineration site, its handling there and its incineration costs till final disposal.

Further, the report recommends that the importers may be directed to
pay all the testing charges incurred by MPCB (Rs.6.5 lakhs) and Customs
(Rs.7.5 lakhs approxi~ately) from the initial stage and till final disposal of
goods. It also notices that the two importers did not appear for personal D
hearing despite several reminders. All the 15 importers have been divided
into five different categories.

In category one, there are 10 importers in respect whereof
recommendations is for recycling or incineration. One importer - lndochem
has been placed in category two in which though sample passed other tests, E
but presence of PCB rendered the goods hazardous. The recommendation is
for release of goods to the importer. The sample of Royal lmpex has higher
lead content and not fit for recycling. Sample was not tested for PCB contents.
Placing it in category three, recommendation is that request for 1·.~-export
may be considered by this Court. The import of Eleven Star Esscon has been F
placed in category four. These goods have been confiscated absolutely. The
goods have heavy metal concentrations but within recycling limits and do not
have organic holds and PCBs. Recycling has been recommended. The two
importers who were proceeded exports have been placed in category five and
recommendation is that action on above lines be taken.
G
The attention of this Court has been drawn to the condition of the waste
oil stock lying in the Customs area pointing out that many of the drums have
exploded and the contents are spread in the area which is definitely a fire
hazard and is also causing grave damage to the environment.

The report further points out that in addition to the 133 containers, H
j

130 SUPREME COURT REPORTS [2005] I S.C.R.

A another group of imports by various parties comprising of an additional 170
containers, which had been imported after the import of 133 containers, are
also lodged with the Custodians in the same area and are more or less in the
same condition. It has also been pointed out that the importers of these 170
containers have not filed any import clearance documents with the Customs
so far.
B
The aforesaid report of Commissioner of Customs has been considered
by the Monitoring Committee. The Monitoring Committee has recommended
disposal of all consignments except one by incineration in consultation with
two Pollution Control Boards mentioned in its report. It has noticed that
C adequate facilities are not available even with registered refiners for re-refining
oil containing PCBs. Notice has also been taken of the fact that the Director,
llP, Dehradun has mentioned that since all 133 containers have been lying at
Mumbai Port since 2000, the oil would have undergone considerable
degradation in last four years. Another important factor that has been taken
into consideration is about the cost of re-refining being exorbitant and,
D therefore, it was not economically feasible to re-refine the oil in question.

In respect of consignments of category one, learned counsel for importers
sought to contend that PCBs were within the limits prescribed by the Basel
Convention and also that the same were of small quantity, it being minimal
and negligible and, therefore, the recommendation of the Monitoring
E Committee for destruction of oil by incineration does not deserve to be
accepted. Reference was also made to Technical Guidelines on Hazardous
Waste: Waste Oils From Petroleum Origins and Sources [(YS) Basel
Convention] to contend that the presence of PCBs and waste oil as a secondary
fuel upto 50 PPM was fairly acceptable in respect of marketing and use. On
F this basis and with reference to the test report, it was contended that since the
PCB in the consignments in question being minimal and negligible, there was
no contravention of the Basel Convention. It was contended that as per
recommendations of Commissioner of Customs re-refining was possible but
the Monitoring Committee has only recommended destruction by incineration
without any legal basis.
G
The Monitoring Committee comprises of experts in the field. It has
recommended destruction of the consignment by incineration. The PCBs may
be within permissible limit insofar as parameters of Basel Convention are j..,

concerned but, at the same time, it has to be kept in view that parameters
H fixed by the Basel Convention are only guidelines and the individual countries
RESEARCH FOUNDATION v. U.0.1. [SABHARWAL, J.] 131

can provide different criterion in their national law to lay down the limits of A
concentration of PCBs so as to label it as hazardous waste. Even European
Community is considering to reduce PCBs concentration from 50 PPM to 20
PPM to make it consistent with the limits on oils being used as fuel. Be that
as it may, insofar as our country is concerned, the provision is that the
presence of PCBs shall be of non-detectable level. The national law laying B
stricter condition has ·to prevail. The Commissioner of Customs, on detailed
examination, has concluded that the import was in complete and flagrant
violation of law. The import is of hazardous waste. In th~ garb of furnace oil,
hazardous waste has been imported. Further, many of the drums have exploded
and the contents spread in the area which besides being a fire hazard is also
causing grave damage to the environments. PCBs are environmentally C
extremely persistent and bio-accumulative, toxic (and a suspected carcinogen),
and if burnt under unsuitable conditions, will give rise to toxic products of
combustion including dioxins and dibenzofurans. Great care is required in
assessing and selecting disposal options for such oils. The CPCB which is
implementing the Registration Scheme for actual users of hazardous wastes
including used/waste oil, is of the opinion that adequate facilities are not D
available even with registered refiners for re-refining oil containing PCBs.
-,: That apart, oil regeneration technologies depend to some degree of quality of
waste oil. Regeneration process involves the application of reasonably
sophisticated technology and require care and expertise in their operation.
The illegally imported oils remained on the Port for four years and would E
have undergone considerable degradation during this period. Nothing tangible
has been shown so as to take a view different than the one recommended by
the Monitoring Committee.

Learned counsel appearing for Royal Impex contended that in the
consignment imported by it only Ash contents were more as per the test F
report on record and, therefore, the consignment may be released to the
importer. It was also contended that the sample was not sent to IIP for further
test in respect of organic halides and PCB determination. The report, however,
states that it may not be feasible to conduct those tests now as prolonged
storage may have deteriorated the material further. According to the report of G
the Commissioner of Customs on the basis of the test results available, the
material was not fit for recycling. Our attention was drawn by learned counsel
for the importer to the test report of New Custom House Laboratory which
only shows that ash contents were more and contention urged was that the
conclusion arrived by the Commissioner of Customs that the material was off
specification and on account of higher lead contents, it was not fit for recycling H
132 SUPREME COURT REPORTS (2005] I S.C.R.

A is without any basis. It was contended that the test report of Central Revenue
Control Laboratory (CRCL) was not on record and on that basis, submission
made is that the conclusion that the samples were tested at CRCL which
showed that lead contents exceeded the limits prescribed for re-refining was
wholly untenable. On directions ·of this Court, learned counsel for the
B Commissioner of Customs has filed before us a copy of the report of CRCL
which shows the lead MG/LIT being 2824.87. This high percentage of lead
was against the prescribed used oil specification for re-refining being 100
PPM. Further, from the reply dated 7th May, 2004 sent to the show cause
notice dated 13th April, 2004, the importer did not ask for testing of oil to
determine PCB contents. On the other hand, the stand in the said reply is that
C if sample is tested after passage of four years, the nature of oil would have
changed considerably and the oil may have certain impurities and, therefore,
the testing of oil will not be an accurate method to ascertain the genuineness
of the oil at the time it was imported. Even before us, the submission is not
.. that the sample should now be sent for testing. We do not think that at this
stage, the consignment can be allowed to be re-exported though agreed to by
D the Monitoring Committee. It also cannot be allowed to be recycled. The oil
deserves to be incinerated.

In respect of import effected by Eleven Star Esscon, heavy metal
..
concentrations are within recycling limits. It does not have organic halides
E and PCBs. Recommendation of the Commissioner of Customs is for its
recycling. The Monitoring Committee has, however, recommended its
incineration possibly in view of its deterioration for about four years when
the consignment was lying at the Port. The consignment has been confiscated
absolutely. It is now the Government's property. Learned counsel for the
importer Eleven Star Esscon has not challenged the confiscation and has
F rather contended that his client has no intention to challenge the same. In
view of the finding that the heavy metals are within recycling limits, there
were no organic halides and the PCBs and the consignment has been found
to be fit for recycling, we feel that the recycling deserves to be permitted as
recommended by Commissioner of Customs but the same shall be done under
G the supervision of the Monitoring Committee. Having so permitted, we may
note that the cost of recycling may be very exorbitant and it may not be
economically viable. If recycling is not considered advisable by the
Government, the consignment shall have to be destroyed by incineration in
the same manner as other consignments. The decision whether the Government
desires the consignment to be recycled shall be taken within a period of four
H weeks failing which the consignment shall be destroyed by incineration along
RESEARCH FOUNDATION v. U.O.I. [SABHARWAL, J.) 133
_). with other consignments. The cost of incineration shall be paid by the A
Government.

According to the Monitoring Committee, the cost of incineration will
be at the rate of Rs. 12 per kilo which also include the cost of transport to
be paid by the importers in advance.
B
The liability of the importers to pay the amounts to be spent for
destroying the goods in question cannot be dou'ite.l on applicability of
'!' precautionary principle and polluter pays principle. These principles are part
of the environmental law of India. There is constitutional mandate to protect
and improve the environment. In order to fulfill the constitutional mandate C
various legislations have been enacted with attempt to solve the problem of
environmental degradation.

In respect of the precautionary principle, Rio Declaration (Principle
No. 15) provides that where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as reason for postponing cost D
effective measures to prevent environmental degradation. This principle
generally describes an approach to the protection of the environment or human
health based around precaution even where there is no clear evidence of
harm or risk of harm from an activity or substance. It is a part of principle
of sustainable development, it provides for taking protection against specific
environmental hazards by avoiding or reducing environmental risks before E
specific harms are experienced.

Having regard to the aforesaid principle, the import of waste oil
containing PCBs of detectable limit has been banned in India. The fact that
PCBs content in the consignments was only marginal or minimal and under
Basel Convention its permissible limit is 50 PPM, is of no consequence. F
Judging by Indian conditions, our law has provided the limit of PCBs which
if of detectable limits, the import is not allowed. The national law has to
apply and shelter cannot be taken under guidelines of Basel Convention.

The polluter pays principle basically means that the producer of goods G
or other items should be responsible for the cost of preventing or dealing
with any pollution that the process causes. This includes environmental cost
as well as direct cost to the people or property, it also covers cost incurred
in avoiding pollution and not just those related to remedying any damage. It
will include full environmental cost and not just those which are immediately
tangible. The principle also does not mean that the polluter can pollute and H
134 SUPREME COURT REPORTS [2005] I S.C.R.

A pay for it. The nature and extent of cost and the circumstances in which the
principle will apply may differ from case to case.

The observations in Deepak Nitrite Ltd v. State of Gujarat and Ors.,
[2004] 6 sec 402 that 'mere violation of the law in not observing the norms
would result in degradation of environment would not be correct' is evidently
B confined to the facts of that case. In the said case the fact that the industrial
units had not conformed with the standards prescribed by the pollution control
board was not in dispute but there was no finding that the said circumstance
had caused damage to environment. The decision also cannot be said to have
laid down a proposition that in absence of actual degradation of environment
C by the offending activities, the payment for repair on application of the
polluter pays principle cannot be ordered. The said case is not relevant for
considering the cases like the present one where offending activities has the
potential of degrading the environment. In any case, in the present case, the
point simply is about the payments to be made for the expenditure to be
incurred for the destruction of imported hazardous waste and amount spent
D for conducting tests for determining whether it is such a waste or not. The
law prescribes that on the detection of PCBs in the furnace or lubricating oil,
the same would come within the definition of hazardous waste. Apart from
polluter pays principle, support can also be had from principle 16 of the Rio
Declaration, which provides that national authorities should endeavour to
E promote the internalisation of environmental costs and the use of economic
instruments, taking into account the approach that the polluter should, in
principle, bear the cost of pollution, with due regard to the public interests
and without distorting international trade and investment.

Further, learned counsel for the petitioner strenuously contended that
p the exemplary and/or penal damages shall also be levied on the offending
importers. In a given case, it may be possible to levy such damages depending
as well upon the nature and extent of offending activity, the nature of offending
party, the intention behind such activity but in the present case in absence of
clear finding on these aspects, it is unnecessary to examine this aspect in
depth. It is, however, to be borne in mind that in India the liability to pay
G compensation to affected persons is strict and absolute and the rule laid down
in Rylands v. Fletcher has been held to be not applicable.

In M.C. Mehta and Anr. v. Union of India and Ors., (1987] l SCC 395
a Constitution Bench has held that the rule in Rylands v. Fletcher laid down
H the principle of liability that if a person who brings on to his land and collects
RESEARCH FOUNDATION v. U.0.1. [SABHARWAL • .I.] 135

and keeps there anything likely to do harm and such thing escapes and does A
damage to another, he is liable to compensate for the damage caused. This
rule applies only to non-natural user of the land and it does not apply to
things naturally on the land or where the escape is due to an act of God and
an act of a stranger or the default of the person injured or where the thing
which escapes is present by the consent of the person injured or in certain B
cases where there is a statutory authority. This rule evolved in the 19th
century at a time when all the developments of science and technology had
not taken place cannot afford any guidance in evolving any standard of
liability consistent with the constitutional norms and the needs of the present
day economy and social structure. In a modem industrial society with highly
developed scientific knowledge and technology where hazardous or inherently C
dangerous industries are necessary to be carried on as part of the developmental
programme, Court should not feel inhibited by this rule merely because the
new law does not recognize the rule of strict and absolute liability in case of
an enterprise engaged in hazardous and dangerous activity. Law has to grow
in order to satisfy the needs of the fast-changing society and keep abreast D
with the economic developments taking place in the country. Law cannot
afford to remain static. The Court cannot allow judicial thinking to be
constricted by reference to the law as it prevails in England or in any other
foreign country. Though the Court should be prepared to receive light from
whatever source it comes but it has to build up its own jurisprudence. It has E
to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industrialized economy.
If it is found that it is necessary to construct a new principle of liability to
deal with an unusual situation which has arisen and which is likely to arise
in future on account of hazardous or inherently dangerous industries which
are concomitant to an industrial economy, the Court should not hesitate to F
evolve such principle of liability because it has not been so done in England.
An enterprise which is engaged in a hazardous or inherently dangerous industry
which poses a potential threat to the health and safety of the persons working
in the factory and residing in the surrounding areas owes an absolute and
non-delegable duty to the community to ensure that no harm results to anyone. G
The enterprise must be held to be under an obligation to provide that the
hazardous or inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety and if any harm results to
anyone on account of an accident in the operation of such activity resulting,
for example, in escape of toxic gas the enterprise is strictly and absolutely
liable to compensate all those who are affected by the accident as a part of H
136 SUPREME COURT REPORTS [2005) I S.C.R.

A the social cost for carrying on such activity, regardless of whether it is carried
on carefully or not. Such liability is not subject to any of the exceptions >-
which operate vis-a-vis the tortuous principle of strict liability under the rule
in Rylands v. Fletcher. If the enterprise is permitted to carry on a hazardous
or inherently dangerous activity for its profit, the law must presume that such
B permission is conditional on the enterprise absorbing the cost of any accident
arising on account of such activity as an appropriate items of its overheads.
The enterprise alone has the resource to discover and guard against hazards
or dangers and to provide warning against potential hazards.

The polluter pays principle was applied in Indian Council for Enviro-
C legal Action and Ors. v. Union of India and Ors., [!996] 3 SCC 212 to
fasten liability for defraying the costs of remedial measures. The task of
detennining the amount required for carrying out the remedial mea~ures, its
recovery/realization and the task of undertaking the remedial measures was
placed in this case upon the Central Government. In the present case the
D approximate expenditure to be incurred for destroying the hazardous waste
has been mentioned in report.

In Ve/lore Citizens' Welfare Forum v. Union of India and Ors., [1996],
5 sec 647 the precautionary principles and polluter pays principle were held
to be part of the environmental law of the country. It was held that the
E polluter pays principle means that the absolute liability for harm to the
environment extends not only to compensate the victims of pollution but also
the cost of restoring the environmental degradation. Remediation of the
damaged environment is part of the process of sustainable development.

In this very case, i.e., Research Foundation For Science Technology
F National Resource Policy v. Union of India and Anr., [2003] 9 SCALE 303
while examining the precautionary principle and polluter pays principle, the
legal principles noticed in brief were :- )._

"The legal position regarding applicability of the precaut.ionary
principle and polluter pays principle which are part of the concept of
G
sustainable development in our country is now well settled. In Ve/lore
Citizens' Welfare Forum v. Union of India and Ors., [1996] 5 SCC
647], a three Judge Bench of this Court, after referring to the principles
evolved in various· international conferences and to the concept of
"sustainable development", inter a/ia, held that the precautionary
H principle and polluter pays principle have now emerged and govern
RESEARCH FOUNDATION v. U.0.1. [SABHARWAL. l] 137
the law in our country, as is clear from Articles 47, 48-A and 51-A A
(g) of our Constitution and that, in fact, in the various environmental
statutes including the Environment (Protection) Act, 1986, these
concepts are already implied. These principles have been held to
have become part of our law. Further, it was observed in Ve/lore
Citizens' Welfare Forum's case that these principles are accepted as B
part of the customary international Jaw and hence there should be no
difficulty in accepting them as part of our domestic law. Reference
may also be made to the decision in the case of A.P. Pollution Control
Board V. Prof M.V Nayudu (Retd) and Ors., [1996] 5 sec 718
where, after referring to the principles noticed in Veil ore Citizens'
Welfare Forum's Case, the same have been explained in more detail C
with a view to enable the Courts and the Tribunals or environmental
authorities to properly apply the said principles in the matters which
come before them. In this decision, it has also been observed that the
principle of good governance is an accepted principle of international
and domestic laws. It comprises of the rule of law, effective State D
institutions, transparency and accountability and public affairs, respect
for human rights and the meaningful participation of citizens in the
political process of their countries and in the decisions affecting their
lives. Reference has also been made to Article 7 of the draft approved
by the working group of the International Law Commission in I996
on "Prevention of Trans-boundary Damage from Hazardous Activities" E
to include the need for the State to take necessary "legislative,
administrative and other actions" to implement the duty of prevention
of environmental harm. Environmental concerns have been placed at
same pedestal as human rights concerns, both being traced to Article
2 I of the Constitution of India. It is the duty of this Court to render p
justice by taking all aspects into consideration. It has also been
observed that with a view to ensure that there is neither danger to the
environment nor to the ecology and, at the same time, ensuring
sustainable development, the Court can refer scientific and technical
aspects for an investigation and opinion to expert bodies. The
provisions of a covenant which elucidate and go to effectuate the G
fundamental rights guaranteed by our Constitution, can be relied upon
by Courts as facets of those fundamental rights and hence enforceable
as such (see People's Union for Civil Liberties v. Union of India and
Anr., [1997] 3 SCC 433). The Basel Convention, it cannot be doubted,
effectuates the fundamental rights guaranteed under Article 21. The H
138 SUPREME COURT REPORTS [2005] I S.C.R.

A rights to information and community participation for protection of
environment and human health is also a right which flows from Article
21. The Government and authorities have, thus to motivate the public
participation. These well-shrined principles have been kept in view
by us while examining and determining various aspect and facets of
the problems in issue and the permissible remedies."
B
The aforenoted precautionary principles are fully applicable to the facts
and circumstances of the case and we have no manner of doubt that the only
appropriate course to protect environments is to direct the destruction of the
consignments by incineration in terms discussed above and as recommended
C by the Monitoring Committee.

It seems that by disposal of the oil under the supervision of Mon;toring
Committee at the incinerators which have adequate facilities to destroy the
oil at a required temperature, there would be no impact on environments.

D In regard to 170 containers referred to in the report of the Commissioner
of Customs which are also lodged in the same premises in more or less same
condition, the Monitoring Committee has noted that these containers have
not been claimed by the importers. The details of the importers of these
consignments are not on record. Before we issue directions in respect of
these 170 containers, it would be necessary to have on record the details of
E these imports. The concerned authorities, i.e., Jawaharlal Nehru Port or
Mumbai Port and all other concerned Departments are directed to furnish to
the Monitoring Committee within four weeks up to date information as to the
import of the 170 containers, how the consignment was dealt with right from
the date of the arrival till date. The Monitoring Committee shall file a report
F along with its recommendations and on consideration thereof, necessary
directions in regard to 170 containers would be issued.

The aforesaid 133 containers are directed to be expeditiously destrnyed
by incineration as per the recommendations of the Monitoring Committee
and under its supervision subject to and in terms of this order. The cost of
G incineration shall be deposited by the importers with the Monitoring Committee
within four weeks. The Monitoring Committee will ensure the timely
destruction of the oil at the incinerators mentioned in its report. After the
destruction of the oil in question, a compliance report shall be filed by the
Monitoring Committee. All concerned are directed to render full assistance
H and cooperation to the Monitoring Committee. In regard to the consignment
I

l,

RESEARCH FOUNDATION v. U.0.1. [SABHARWAL, .I.] 139
of Eleven Star Esscon, in case option for recycling is exercised by the A
.,.l Government, the recycling would be done under the supervision of the
Monitoring Committee. If the request for recycling is not received by the
Monitoring Committee within four weeks, the said consignment would also
be destroyed in the same manner as the other consignments.

D.G. Petition disposed of. B