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CHAPTER - I

INTRODUCTION

1.1 Introduction

The environment is outer physical and biological system in which man and other

organisms live as a whole. The components of the environment include: “its rocks,

minerals, soils and waters, its lands and their present and potential vegetations, its animal

life and potential for livestock husbandry and its climate”1. There is a close and

complicated interaction amongst these components which tend to produce some kind of

equilibrium in the scheme of nature which is called “ecological balance”. Changes in the

ecological system occur continuously through natural process and activities of man, but

the system has to a certain extent remarkable tendency to rebalance itself. This system

taken as a whole is useful to man. It is due to this usefulness that for fulfilling his

physical requirements, man is totally dependent on the environment2.

History is a witness to the fact that the man has been continuously struggling to

manage his environment so as to improve his well being. This capacity of the man

increased considerably following the industrial, scientific and technological revolutions.

The spread of diseases caused by the insect, rodent, water and food borne infections

which at one time could be attributed to the main causes of death has been practically

controlled. All these have been done without affecting the natural environment

surrounding the man. But as the time passed, new problems started coming to the

forefront and resulted in dis-balancing the nature. The population explosion, improper

management of wastes, affluent society with unlimited wants, increased radiations,

automobiles, greater use of energy, increased food production needs and some other

related developments have been responsible for creating the imbalance3.

1 United Nations Environment Programme: Annual Review -1980, 6 (UNEP: Nairobi, Kenya, 1981).2 Paras Diwan (ed.), Environment Protection 63 (Deep & Deep Publications Pvt. Ltd: New Delhi, 1997).3 Kailash Thakur, Environmental Protection Law and Policy in India 2 (Deep & Deep Publications Pvt.

Ltd: New Delhi, 1st Edn. 1997, Reprint 2007).

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Justice Krishna Iyer quoted that, “Humanity is indivisible. So is Peace and

Security. Civilized man’s uncivilized aggression on Nature has made us realize that, like

humanity, ecology is indivisible. Peace and Salvation on earth are possible only if we are

conscious of ecological ethics”4.

Waste is generally defined as “something which is not put into proper usage at a

given time”5. The original definition of waste res derilicta6 corresponds to the concept of

'throw away' culture7. Waste can be categorized according to its origin as domestic waste,

industrial waste, hospital waste and e-waste. The word 'waste' refers to useless, unused,

unwanted or discarded material. In India, for regulatory purposes, waste is generally

classified into municipal solid waste and hazardous waste.

Man has always generated waste materials which are either by-product of his

activities, for which he could not find any use, or products which have reached the end of

useful life. Although this was going on throughout the ages, it was not a problem until

recent times because nature’s own waste treatment processes like dispersion, dilution and

degradation, which took care of these problems. Wastes dumped into the rivers were

washed away quickly and diluted to the point where no effect on water purity could have

been observed. Wastes left on land, decayed by spontaneous chemical and degradation

process thereby: the balance of nature was maintained.

The situation today is not so simple. The problem is due to both quantitative and

qualitative nature of the wastes we are producing. The natural degradation processes are

slow and can take care of only a limited amounts and specific kinds of wastes. The rivers

are not able to dilute and degrade sufficiently the vast amount of industrial effluents

dumped everyday into them. And one would have to wait a long time for heaps of junk

metallic material dumped to blend in with the earth’s crust again as ores. This will not

happen, because wastes are being dumped faster than nature can degrade and absorb

4 V. R. Krishna Iyer, Environmental Pollution and the Law 6 (Vedpal Law House: Indore, 1984).5 Concise Oxford Dictionary, 1616 (Oxford University Press: Oxford, 10th Edn., 2008).6 Meaning “the abandoned object” in Latin.7 Alexander Kiss, “The International Control of Transboundary Movement of Hazardous Wastes”,

Texas International Law Journal Vol. 26 (1991) p. 521.

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them. Further, many of the modern waste materials are non-biodegradable. All these

cause serious threat to the eco system8.

The accumulation of waste creates problems for the local bodies and also causes

major sanitary problems which ultimately affect the health of the people. The densely

populated cities also lack proper sewage treatment facilities or safe disposal of solid

waste. The problem of untreated sewage being dumped into nearby water courses further

adds to the woes of the people. It has been reported that three fourth of surface water is

polluted and major percentage of such pollution is caused due to untreated sewage only.

In the absence of proper treatment facilities, both solid and liquid waste finds their way to

water courses and rivers because most of the major cities are situated on the bank of such

water bodies or rivers which creates severe pollution problem. Most of the municipal

bodies are not in a position to clear the garbage and the city wastes on regular basis.

Neither, they have the required man power nor, other required facilities. As a result of

which the left out rubbish gets accumulated which goes unattended for days together and

ultimately become the main factor in spreading various diseases9. Unless efforts are made

to improve the flow of resources to solid waste management and build up systems which

incorporate the basic requirements of a proper waste management practice, the problem

of waste will be further aggravated and cause environment health problems10.

Rapid industrialization has improved the quality of life by providing chemical

products, which have improved the health and life expectancy, increased the agriculture

production, enhanced the economic opportunities and improved the facilities for luxury

and comfort. However, it is also true that chemical residues, which are generated

unavoidably during the production of these chemicals, have posed unprecedented risks to

human health and environment. Several countries have already made great efforts to develop

effective technologies, legal and administrative framework for effective hazardous waste

8 S. Syed, “Solid and Liquid Waste Management”, Emirates Journal for Engineering Research Vol. 2,No. 2, (2006)19-20.

9 Dr. Sukanta K. Nanda, Environmental Law 363 (Central Law Publications: Allahabad, 1st Edn., 2007).10 M. C. Mehta, Lal’s Commentary on Water, Air Pollution and Environment (Protection) Laws, 118

(Delhi Law House: New Delhi, 4th Edn., 2000).

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management. While substantial progress has been made, hazardous waste management is

still in developing stage in India11.

Over the years there have been tremendous advancements in the healthcare

system. However it is ironic that the healthcare settings, which restore and maintain

community health, are also threatening their well-being. Poor waste management

practices pose a huge risk to the health of the public, patients, professionals and

contribute to environmental degradation12.

Bio-medical waste is generated in different departments of the hospital and

college, research institutions, healthcare teaching institutes, rehabilitation centres,

clinics and nursing homes, laboratories, blood banks, autopsy centres, animal houses,

veterinary institutes and at home if healthcare is being provided there to a patient. The

waste produced in the course of healthcare activities carries a higher potential for infection

and injury than any other type of waste13. The last century witnessed the rapid

mushrooming of hospitals in the public and private sector, dictated by the need of the

expanding population and the advent and acceptance of disposables has made the

generation of hospital waste a significant factor in present hospitals. If we do not learn

the methods of disposing the waste generated in the process, the 'treatment' will cause the

disease. Then the very purpose of the medical inventions and scientific research will be

defeated. There is a duty to see that the medical waste will not develop into a monster

taking away the fruits of centuries of research and pushing the creatures into disaster14.

Electronic and Electrical waste popularly known as e-waste is one of the fastest

growing waste streams in the country. Electrical and Electronic waste products, do not

decompose or rot away15. Growth of information and communication technology sector has

11 A. K. Saxena and Yogesh Gupta, “Environmentally Sound Management of Hazardous Wastes”,Encyclopedia of Life Support Systems (EOLSS), available at: www.eolss.net/Eolss-sample AllChapter.aspx (visited on 24.01.2014).

12 J. Joseph and A. Krishnan, (2004), “Hospital waste management in the union territory of Pondicherry — Anexploration”, Available at, www.pon.nic.in/citizen/science/ppcc-new/joe.pdf, (visited on 7.11.2014).

13 J.E. Park, Hospital Waste Management. Park's Textbook of Preventive and Social Medicine.(Banarsi Das Bhanot: Jabalpur, 18th Edn., 2005).

14 Samatha Pulavarthi and Srinivasulu Pothi Reddy, “Biomedical waste management”, International Journalof A J Institute of Medical Sciences, Vol.1, No. l, (May 2012), p. 67-74

15 Ajeet Saoji, “E-Waste Management: An Emerging Environmental and Health Issue in India”, NationalJournal of Medical Research, Vol. 2 Issue 1, (Jan – March 2012), p.107.

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enhanced the usage of the electronic and electrical equipment exponentially. Faster

obsolescence and subsequent up-gradation of electrical and electronic products, are forcing

consumers to discard old products, which in turn accumulate huge e-waste to the solid waste

stream. With the presence of deadly chemicals and toxic substances in the electrical and

electronic gadgets, disposal of e-waste is becoming an environmental and health nightmare.

Every year, thousands of old computers, mobile phones, television sets and radio equipment

is discarded, most of which either end up in landfills or unauthorized recycling yards16.

Solid waste management, which is already a mammoth task in India, is becoming

more complicated by the invasion of e-waste, particularly computer waste. E-waste from

developed countries finds an easy way into developing countries in the name of free trade

further complicating the problems associated with waste management17.

Today it has become clear that the health of the public and the surrounding

environment is put at risk as a result of past practices of uncontrolled waste dumping.

Some of these wastes have been proven to be extremely toxic and hazardous; the

uncontrolled dumping of such wastes has brought about the death of live stocks and an

increasing number of incidents have caused health hazards to human beings in many

countries. A potentially more serious risk to human health is due to contamination of

surface and ground water.

Once the environmental resources whether land or water gets contaminated with

hazardous components of waste, it is almost impossible to clean up these resources

economically. It is essential for both the regulatory authorities as well as industries to

manage hazardous industries under strict control. One of the instruments used for

controlling hazardous wastes, is introduction and enforcement of appropriate effective

legislation. To support and enforce the effective legal system, appropriate administrative

and organisational structure needs to be established. In order to ensure safe and scientific

disposal of hazardous waste specialized and engineered facilities are needed. Further,

16 Greenpeace study reveals E-Brands faltering on e-waste takeback in India, 04.08.2008. Available athttp://www.greenpeace.org /india/en/news/greenpeace-study-reveals-e-bra/, (visited on 22.08.2014).

17 Toxics Link, E-Waste in Chennai Time is running out, 2004, Available at: www.toxicslink.org.(Visited on12.12.2011).

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constant monitoring is required to ascertain that disposal has been effective and there is

no more threat to human health and environment.

1.2 Background of the Study

Protection of environment is not a modern concept but has been in prevalence

from times immemorial. In olden days man and environment were said to be inseparable.

Ancient man never had an occasion to pollute environment except during the course of

satisfying his natural wishes and desires. He was always afraid of the natural environment

and was not daring enough to pollute it as is the usual trend in modern times.

Ancient Indians worshipped certain plants, trees, animals and birds. They were

also treating the earth, the sky, the sun, the planets, the air, water as the symbols of god.

They were in the belief that these gods were protecting them from the unexpected and

unknown evils. They never preferred to destroy the ecology and the eco-system except

for the preservation of their race at the level of minimum destruction. Keeping the

surroundings clean was recognized to be a customary duty of all ancient Indians and was

part of the first duty in the daily routine. Any destruction of nature and natural resources

was undertaken only as a last resort and for public welfare. They maintained the

ecological balance in its strict sense18.

In the medieval period conservation of environment did not receive much

attention. The Moghul emperors, though they were great lovers of nature and took delight

in spending their spare time in the lap of natural environment, made no attempts on forest

conservation. As regards the position of forest economy, the rural communities by and

large, enjoyed untrammelled use of forest and wastes in their vicinity. The waste and

forest lands were treated as open access resources19. Untrammelled use of forest and

other natural resources, however, did not mean that they could be used or misused by one

and all without any restraints. Rather they were quite effectively managed with the help

18 N. Maheshwara Swamy, Textbook on Environmental Law 7 (Asia Law House: Hyderabad, New Edn.,2004).

19 Chatterpati Singh, Common Property and Common Poverty: India’s Forests, Forest Dwellers and theLaw 10 (Oxford University Press: Delhi, 1986).

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of the complex range of rules and regulations woven around the socio cultural features as

well as the economic activities of the local communities20.

During the British period, although there were certain general legislations that

may be traced to environmental protection (like the Indian Penal Code of 1860), but there

have been few specific legislations in the mid nineteenth century which addressed

specific issues of pollution control. The Shore Nuisance (Bombay and Colaba) Act, 1853

concerning water pollution is one such example. The River Boards Act of 1956 and

Factories Act of 1948 also addressed certain aspects of protecting the environment, such

as regulation and development of inter-state rivers as well as waste disposal21. Though

the critics pointed out that the British enacted these legislations not with the object of

protecting the environment but with the aim of earning revenue for them, it should be

regarded as the first step towards the conservation of natural resources.

After independence considerable developments were made for the protection of

the environment. Under the Indian Constitution Articles 39(b), 47, 48 and 49 contains

supplementary provisions to conserve the natural resources and protect the natural

environment22. The year 1972 is a landmark in the history of environmental management

in India. It was the year in which the United Nations Conference on Human Environment

was held at Stockholm23. The views expressed at the Stockholm conference formed a

20 Ramachandra Guha, The Unquiet Woods-Ecological Change and Peasant Resistance in the Himalaya87 (Oxford University Press: Delhi, 1989).

21 Sanjay Upadhyay and Videh Upadhyay, Handbook on Environmental Law – Environment Protection,Land and Energy Laws, 7 (Vol. 3, Lexis Nexis Butterworths: New Delhi, 1st Edn., 2002).

22 Article 39 (b) “that the ownership and control of the material resources of the community are sodistributed as best to subserve the common good;”Article 47 “The State shall regard the raising of the level of nutrition and the standard of living of itspeople and the improvement of public health as among its primary duties and, in particular, the Stateshall endeavour to bring about prohibition of the consumption except for medicinal purposes ofintoxicating drinks and of drugs which are injurious to health”.Article 48 “The State shall endeavour to organise agriculture and animal husbandry on modern andscientific lines and shall, in particular, take steps for preserving and improving the breeds andprohibiting the slaughter, of cows and calves and other milch and draught cattle”.Article 49 “It shall be the obligation of the State to protect every monument or place or object ofartistic or historic interest, declared by or under law made by Parliament to be of national importance,from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be”.

23 The United Nations Conference on Human Environment was held at Stockholm from 5 to 16 June,1972. It laid down 26 principles, which should be guidelines for all the nations in implementation ofEnvironmental Law.

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core part of the basic environmental philosophy of India that found expression in various

governmental policy pronouncements in subsequent years.

In the year 1976, the forty second Amendment to the Constitution inserted two

new Articles in Part IV and Part IV-A. The newly added Article 48-A directs the state

that, “the State shall endeavour to protect and improve the environment and to safeguard

the forests and wildlife of the country”. In the newly added part, Part IV-A, a list of

fundamental duties of citizens of India was prescribed. Article 51-A consists of ten duties

of which clause (g) directs that it shall be a fundamental duty of a citizen of India “to

protect and improve the natural environment including forests, lakes, rivers and wildlife

and to have compassion for living creatures”.

In the later part of the last century, the Parliament has enacted three major anti-

pollution laws dealing with one or the other aspects of the environmental pollution24.

These are Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and

Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986. The Water Act

passed by the Parliament to prevent and control of water pollution, the Air Act passed by

the Parliament provides for prevention, control and abatement of air pollution. The

Environment (Protection) Act is the most comprehensive Act relating to environment

pollution. It provides for protection and improvement of environment and prevention of

hazards to human beings, other living creatures, plants and property.

Subsequent to these anti-pollution legislations, the Parliament has also framed

other legislations which are supportive to the mandate of anti-pollution legislations. The

first of its kind is the Public Liability Insurance Act, 1991, which provides for public

liability insurance for the purpose of providing relief in cases of industrial accidents.

Secondly, the Municipal Solid Wastes (Management and Handling) Rules, 2000, the

Hazardous Wastes (Management, Handling and Transboundary Movements) Rules,

2008, the Bio-Medical Waste (Management and Handling) Rules, 1998 and the E-Waste

(Management and Handling) Rules, 2011 which have been framed with the object to

control and regulate the solid wastes, hazardous wastes, bio-medical waste and e-waste.

24 It is significant to note that there are over 200 central and state statutes that have some bearing onenvironmental protection, though in most cases, environmental concern is merely incidental to the lawsprinciple object.

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Apart from the legislative framework, the judiciary has contributed several

principles and doctrines for environmental protection. Some of these principles are self

explanatory and applied as a preventive mechanism, while others are evolved as a

compensatory one. The principle of “Absolute Liability” was evolved in M.C. Mehta v.

Union of India25, which is popularly known as the “Oleum Gas Leakage Case”.

According to this rule, “once the activity carried on is hazardous or inherently dangerous,

the person carrying on such activity is liable to make good for the loss caused to any

other person by his activity irrespective of the fact, whether he took reasonable care while

carrying on his activity”.

In Vellore Citizen’s Welfare Forum v. Union of India26, the court expressed the

“Polluter Pays Principle” and declared that, “Remediation of the damaged environment is

part of the process of ‘Sustainable Development’ and as such the polluter is liable to pay

the cost to the individual sufferers as well as the cost of reversing the damaged ecology”.

The “discharge of pollutants, which are potentially harmful, must be controlled, even in

the absence of specific data concerning it” known as “Precautionary Principle” which

was stated in Andhra Pradesh Pollution Control Board v. M.V. Nayudu27, by the

Supreme Court. This is also stated in the “Rio Declaration” Principle 1528.

The “Principle of Highest Safety Standards” was propounded by the Supreme

Court in Oleum Gas Leakage Case29. According to this rule, since the activities of the

hazardous industries are dangerous, they must be conducted with the highest standards of

safety. In M.C. Mehta v. Kamalnath30, the Supreme Court has expressed the “Doctrine of

Public Trust” and held that, the “State as a trustee is under a legal duty to protect the

natural resources, which are by nature meant for public use and enjoyment”.

25 AIR 1987 SC 1086 at 1089.26 1996 (5) SCC 647 at p.658.27 AIR 1999 SC 812, at 820.28 Principle 15, In order to protect the environment, the precautionary approach shall be widely applied

by States according to their capabilities. Where there are threats of serious or irreversible damage, lackof full scientific certainty shall not be used as a reason for postponing cost-effective measures toprevent environmental degradation. Available at: http://www.unep.org/Documents. Multilingual/Default.asp?documentid=78&articleid=1163 (Visited on January 18, 2014).

29 M.C. Mehta v. Union of India, AIR 1987 SC 1086. at 1099.30 (1997) 1 SCC 388.

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In Indian Council for Enviro-Legal Action v. Union of India31, the Supreme Court

emphasized the Doctrine of “Sustainable Development” which means, “there should not

be development at the cost of environment and vice-versa, but there should be development

while taking due care and ensuring the protection of environment”. In, the “Doctrine of Inter-

generational Equity” every generation owes a duty to all succeeding generations to develop

and conserve the natural resources of the nation in the best possible way32.

1.3 Review of Literature

There are several books, dissertations and articles written on environmental

protection, hazardous and solid waste management. For the purpose of the study, the

authoritative primary sources of information have been collected from the Indian statutes

mainly, Environment (Protection) Act 1986, Indian Penal Code 1860, Civil Procedure Code

1908, Criminal Procedure Code 1973, The Air (Prevention and Control of Pollution) Act 1981,

The Water (Prevention and Control of Pollution) Act 1974, The Water (Prevention and

Control of Pollution) Cess Act 1977, The Public Liability Insurance Act 1991, Constitution

of India 1950, the Municipal Solid Wastes (Management and Handling) Rules 2000, the

Hazardous Wastes (Management, Handling and Transboundary Movement) Rules 2008, the

Bio-Medical Waste (Management and Handling) Rules 1998 and the E-Waste (Management

and Handling) Rules, 2011. The other persuasive primary sources of information extracted

for the research is from various International Conventions and declarations such as

Stockholm Declaration 1972, Rio Declaration 1992 and The Basel Convention on the

Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989.

The secondary sources of information has been taken from various committee reports

such as Pitambar Pant Committee on Human Environment 1972, National Committee on

Environmental Planning and Co-ordination which was established in the year 1972,

N. D. Tiwari Committee33 and Mr. Asim Burman Committee Report34. The tertiary sources

of Information have been collected from books, publications, journals and articles.

31 (1996) 5 SCC 281.32 State of Tamilnadu v. Hind Stone AIR 1981 SC 711.33 “Report of the committee for recommending legislative measures and administrative machinery for

ensuring environmental protection”, (popularly known as Tiwari Committee Report), p. 19-24 (1980).

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The book titled “Environmental Protection Law and Policy in India” by Kailash

Thakur (2007)35 highlights the sources and effects of environmental pollution as well as

the legal mechanism for its control and this book sets-out to provide a broad examination

of environmental law and policy in India. But it does not focus the areas relating to

hazardous and solid wastes management laws in India.

The significant literature by Indrajit Dube (2007)36 an attempt has been made to

analyze the legislative and judicial responses in India towards imposition of liability upon

polluters for violation of environmental laws of the country. This book seeks to find the

answer of the question, in case of pollution, who is responsible for the pollution, i.e., how

is the onus to be fixed on the polluter and how is his liability to be quantified. The

perspective of the book is based on Indian Law, but reference to other jurisdictional laws

and International instruments have been made at appropriate places. The literature does

not comprehensively analyses the environmental protection and the hazardous and solid

waste management laws in India.

The book “Environmental Law in India” authored by P. Leelakrishanan (2005)37

is an exhaustive study on the growth of environmental law in India. This book highlights

the various aspects of environmental regime-law of public nuisance, constitutional

mandates for environmental protection, control of pollution, judicial review of decisions

affecting the environment and impact assessment processes. But the Indian law relating

to management of hazardous and solid wastes has not been analyzed.

In “Environmental Status of India” edited by Sukumar Devotta and C. V. Chalapati

Rao (2008)38 deals with various pertinent issues and suggest measures to mitigate the

harmful effects of environmental pollution. It also deals with the different sources and

34 The object of the committee is to examine all aspects of urban solid waste management in class-I citieshaving population over one lakh. It was constituted by the Supreme Court in Almitra H. Patel v. Unionof India (1998) 2 SCC 416.

35 Kailash Thakur, Environmental Protection Law and Policy in India 2 (Deep & Deep Publications Pvt.Ltd: New Delhi, 1st Edn., 1997, Reprint 2007).

36 Indrajit Dube, Environmental Jurisprudence: Polluter’s Liability, (Lexis Nexis Butterworths:New Delhi, 1st Edn., 2007).

37 P. Leelakrishanan, Environmental Law in India, (Lexis Nexis Butterworths: New Delhi, 2nd Edn., 2005).38 Sukumar Devotta and C.V. Chalapati Rao, Environmental Status of India (Atlantic Publishers and

Distributors (P) Ltd: New Delhi, 1st Edn., 2008).

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types of air pollution, the status of air quality, the concerns and inadequacy in

management and control and their related health impacts. Further this book exclusively

deals with the problem of waste water generated by industries and municipal sewage.

This book on solid and hazardous waste categorizes the types of waste generated and

suggests different treatment options thereof. The challenge of the disposal of hazardous

wastes have been discussed, but does not deal with the legal framework of municipal

solid wastes management rules and hazardous solid wastes management rules.

In the book, “Environmental Law” by P. S. Jaswal and Nistha Jaswal39covers the

various aspects of environmental protection laws. It traces the genesis of the problem of

the environmental pollution and deals with various common law remedies and statutory

remedies to protect the environment. Various constitutional provisions aimed at

protecting the environment have been discussed. The laws relating to management of

hazardous and solid waste have been discussed, but not in detail, particularly the law

relating to E-waste management being not touched and no critical analysis being made.

Prof. M. P. Jain, “Indian Constitutional Law”40, Prof. Kailash Rai, “The Constitutional

Law of India”41 and J.N. Pandey, “The Constitutional Law of India”42, the thorough study

reveals that they were not giving adequate importance to analyze environmental protection in

particular hazardous and solid waste management. The provisions for environmental

protection as mentioned under Directive Principles of State Policy43 and Fundamental

Duties44 were not critically analyzed.

An attempt has been made to review the literature available related to solid waste

management. It was found that maximum literature was written in the form of articles on

various aspects of solid waste management. In a book “Solid Waste Management” by

39 P. S. Jaswal and Nistha Jaswal, Environmental Law (Allahabad Law Agency: Haryana, 3rd Edn., 2009).40 Prof. M. P. Jain, Indian Constitutional Law (Lexis Nexis Butterworths, Wadhwa: Nagpur, 5th Edn., 2009).41 Prof. Kailash Rai, The Constitutional Law of India (Central Law Publications: Allahabad, 8th Edn., 2009).42 J. N. Pandey, The Constitutional Law of India, (Central Law Agency: Allahabad, 46th Edn., 2009).43 Article 48-A: The State shall endeavor to protect and improve the environment and to safeguard the

forests and wild life of the country.44 Article 51 A (g): It shall be the duty of every citizens of India to protect and improve the natural

environment including forests, lakes, rivers and wild life and to have compassion for living creatures.

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Subhash Anand45 deals with waste generation, characteristics of municipal solid waste,

collection and storage of garbage and the transportation and disposal of solid wastes.

It also analyses the perception and participation of people with regard to solid waste

management system. It covers whole urban territory of Delhi where services are being

mainly provided by Municipal Corporation of Delhi, New Delhi Municipal Council and

Delhi Cantonment Board but it does not extend to whole of India. This book does not

analyze elaborately the legal framework of the solid waste management. Further it does

not focus the rural areas solid waste management system.

In an article “Solid Waste Disposal and the Environment: A Review” by

Chakrabarty et al., (1995)46 critically examined the conventional methods of disposal of

waste like landfill, incineration, composting taking into account their environmental cost.

According to them an aerobic decomposition method is more suitable for urban areas as it

may be useful also for solving the energy problems.

In another article “Regulation and Management of Municipal Waste: Indian

Scenario”, Khan (2004)47, has highlighted the present regulations and management

practices of solid waste management in Indian scenario. He concluded that entire system

of waste management in country is outdated, unscientific and highly inefficient. Improper

solid waste management practices give rise to health and environmental problems, so

environmental and health impact assessment must be there. Twenty two types of diseases

are associated with improper waste management. He recommended that one percent of

the project investment of municipal solid waste management may be spent on

environment and health impact assessment.

In a research study conducted by Gangadharan (2005)48, on “utilization of health

services in urban Kerala”, he found that about 64 percent of urban dwellers disposed their

waste by burning, while 47.5 percent slum dwellers were throwing the waste in seashore

45 Subhash Anand, Solid Waste Management, (Mittal Publications: New Delhi, 1st Edn., 2010).46 Chakrabarty P., et al., “Solid Waste Disposal and the Environment: A Review”, Indian Journal of

Environmental Protection Vol. 15, No. 1, (1995), 39-43.47 Khan, Mohsin U. “Regulation and Management of Municipal Waste: Indian Scenario”, National

Institute of Science Technology and Development Studies- News, Vo.6, No.1 (2004), 41-50.48 Gangadharan. K, Utilization of Health Services in Urban Kerala- A Socio-Economic Study, (Serials

Publications: New Delhi, 1st Edn., 2005).

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causing serious environmental problems. He further noticed the unhygienic and

unhealthy working conditions of low classes, expose them to a variety of communicable

diseases, occupational diseases, injuries etc., whereas the upper classes are mostly free

from these health problems due to their better living and working conditions.

In an article titled “Solid Waste Management in India” by Faisal Zia Siddiqui and

Khan M. Emran49 they argued that, although there is an adequate legal frame works

existing in the country to address solid waste management issues, what is lacking is its

implementation. Likely reasons for poor implementation could be a combination of

social, technical, institutional and financial issues. Public awareness, political will and

public participation is essential for the successful implementation of the legal provisions.

In the research study conducted by Ranjith Kharvel Annepu (2012)50 on

“Sustainable Solid Waste Management in India” has examined the present status of waste

management in India, its effects on public health and the environment and the prospects

of introducing improved means of disposing municipal solid waste in India. The study

also found that open burning of solid wastes and landfill emits nearly 22000 tons of

pollutants per year into the air in the city Mumbai alone. This report proposes a waste

disposal system which includes integrated informal recycling, small Scale

Biomethanation, Mechanical Biological Treatment (MBT) and Refuse Derived Fuel

(RDF)/Waste-to-Energy Combustion (WTE).

In an article “Solid and Liquid Waste Management” by S. Syed51 the author

reviews the history of solid and liquid waste operations and summarizes the current

environmental monitoring program and its major findings. Various problems of wastes in

past and present, environmental ecology, general aspects of recycling and materials

recovery are defined.

49 M. S. Bhatt and Asheref Illiyan, Solid Waste Management - An Indian Perspective, (Synergy BooksIndia: New Delhi, 1st Edn., 2012).

50 Available at: http://www.academia.edu/2077298/Sustainable_Solid_Waste_Management_in_India,(Visited on 10.02.2014).

51 S. Syed, “Solid and Liquid Waste Management”, Emirates Journal for Engineering Research, Vol. 2,No.2 (2006)19-36.

15

In an article “Municipal Solid Waste Management in Indian Cities – A Review”

by Mufeed Sharholy et al.,52 an attempt has been made to provide a comprehensive

review of the characteristics, generation, collection and transportation, disposal and

treatment technologies of municipal solid waste practiced in India. The study pertaining

to municipal solid waste management for Indian cities has been carried out to evaluate

the current status and identify the major problems. Various adopted treatment

technologies for municipal solid waste are critically reviewed, along with their

advantages and limitations. The study is concluded with a few fruitful suggestions.

In an article “Hazardous Waste Management in India” by B. V. Babu and

V. Ramakrishna53 focuses on the basic steps involved in the comprehensive hazardous

waste management. The physical models developed by the authors for ranking of

Treatment, Storage and Disposal Facility (TSDF) sites based on the guidelines available

are discussed. The current status in India pertaining to generation of hazardous waste and

the TSDF sites is also discussed.

In another article “Industrial Hazardous Waste Management Strategies – Case

Studies” by R.M. Venkatesh and J.L. Thakker (2009)54 deliberates on how the future lies

in reduction of hazardous waste by techniques of Recycle and Reuse for Sustainable

Development. Issues related to leachate management are also addressed.

In a book titled “Bio-Medical Waste and the Law – A Referral Guide” by Dr. S.

V. Joga Rao (2004)55 highlights the categories of bio-medical wastes and its impact on

health and environment.

52 Mufeed Sharholy et al., “Municipal Solid Waste Management in Indian Cities – A Review”, WasteManagement, Vol. 28 (2008) 459-467, available at: www.sciencedirect.com (Visited on 08.01.2014).

53 B.V. Babu and V. Ramakrishna, “Hazardous Waste Management in India”, Available at:http://citeseerx.ist. psu.edu /viewdoc/download? doi=10.1.1.10.8335&rep=rep1&type=pdf (Visited on10.02.2014).

54 R.M. Venkatesh and J. L. Thakker, “Industrial Hazardous Waste Management Strategies – CaseStudies” (July-2009), available at: http://www.yumpu.com/en/document/view/10829999/4thakker-industrial-hwmpdf-answai-conf-2009, (visited on 10.02.2014).

55 Dr. S. V. Joga Rao, Bio-Medical Waste and the Law – A Referral Guide (legalaxy: Banglore, 1st Edn., 2004).

16

In an article “Law Relating to Biomedical Waste Management in India – An

Analysis” by Dr. Gurpreet K. Pannu (2005-06)56 analyses the law relating to the bio-

medical wastes in India and the role of judiciary in the preservation of the environment.

In an article “E-Waste Management in India” by Nainsi (2012)57 highlights the

hazards of e-wastes, its effects on the environment and human health, the need for its

appropriate management, options that can be implemented and its management in India.

In another article “Electronic Waste Management in India – Issues and Strategies” by

Kurian Joseph (2007)58 highlights the associated issues and strategies to address this

emerging problem, in the light of initiatives in India. The paper presents a waste

management system with shared responsibility for the collection and recycling of

electronic waste amongst the manufacturers / assemblers, importers, recyclers, regulatory

bodies and the consumers. In a review article “E-Waste Management: An Emerging

Environmental and Health Issues in India” by Ajeet Saoji (2012)59 presents the associated

issues and impact of the emerging problem of e-waste, in the light of initiatives in India.

In all the earlier researches, they have analysed all these concepts from the

scientific angles. There is a dearth of study on this area from the legal perspectives.

So the researcher ventures into legal areas of hazardous and solid wastes management

and also has pointed out the bottlenecks in these legislations through this research.

The researcher also pointed out the practical difficulties and blatant errors in these

legislations. The researcher has been critically evaluated all these laws as to whether the

objects of these legislations have been fulfilled or not.

56 Dr. Gurpreet K. Pannu, “Law Relating to Biomedical Waste Management in India – An Analysis”,Journal of the Legal Studies, Vol. 36 (2005-06) 92-102.

57 Nainsi, “E-Waste Management in India”, Journal of Information systems and Communication, vol. 3(2012) 261-264.

58 Kurian Joseph, “Electronic Waste Management in India – Issues and Strategies”, EleventhInternational Waste Management and Landfill Symposium (2007) available at: http://unpan1.un.org/intradoc/groups/public/documents/ apcity/unpan037140.pdf. (Visited on 11.02.2014).

59 Ajeet Saoji, “E-Waste Management: An Emerging Environmental and Health Issues in India”,National Journal of Medical Research, Vol. 2 (2012) 107.

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1.4 Scope and Limitations of the Study

The researcher is intended to analyze the efficacy and adequacy of existing laws,

rules, notifications and its enforcement relating to environment protection and waste

management. The researcher has made an attempt to explore the areas with respect to the

legislations enacted during the pre-independence era and post-independence era, its

implementation, enforcement and handling of hazardous, solid, bio-medical and e-waste.

The limitation of this research is that, the research analyses only the legal perspectives of

the hazardous and solid waste management with respect to the Indian scenario along with

comparison of developed and developing nations.

1.5 Significance of the Study

The population explosion, exuberant growth of urbanization, decline of cultivable

lands, growing number of vehicles on the road, deforestation, industrialization, improper

management of waste, changing pattern of consumption, changing pattern of life and

exploitation of natural resources by human activities have all threatened our basic

survival on earth. The present day environment causes health hazards like, lungs problem

for which dust is the cause, skin allergy for which the sun and the ozone layer are the

cause, kidney problems for which the ground water becomes the main reason and many

other chronic diseases for which there is no permanent cure.

People are being deprived of their legitimate right to an unpolluted environment.

They are forced to drink polluted water, breathe polluted air and live in polluted

atmosphere. The improper management of hazardous and solid wastes causes physical,

biological and chemical threat to man. They threaten the ecological balance on which we

depend for the sustenance. They pose a threat to social welfare. Exploitation of natural

resources in an unrestricted manner will cause loss of biodiversity, thereby endangering

species. If proper steps are not taken at present to curb and control the improper

management of hazardous and solid wastes, mankind will meet the fate of the civilized

people who built Harappa and Mohanjadero. Hence, the study is a significant one in the

attempt of saving mankind and the earth against environmental pollution and improper

management of hazardous and solid wastes.

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1.6 Objectives of the Study

The objectives of the present research is to identify some of the major issues, forces

and factors that are central to the problem of protection, conservation and management of

the environment.

i) To examine critically the various laws dealing with the environment protection,

hazardous and municipal solid waste management.

ii) To evaluate the efficacy and adequacy of the existing laws in combating the

environmental degradation.

iii) To study the role of the judiciary in relation to environmental protection

legislation and its interpretation.

iv) To analyze the effective role played by the enforcement machinery in

implementing laws relating to environmental protection and hazardous and

municipal solid waste management.

v) To analyze the nature and magnitude of hazardous and municipal solid waste

management.

vi) To examine the present method of segregation, collection, transportation and

disposal of hazardous and municipal solid waste.

vii) To analyse the existing rules and regulations pertaining to the management

and handling of bio-medical Waste for their efficacy, especially in the context

of enforcement and feasibility.

viii) To examine the present status of waste management laws in India, its effects on

public health and environment.

1.7 Research Questions

With the above stated objectives, the following questions are formulated.

i) Whether the legislative measures designed for environmental protection,

hazardous and municipal solid waste management have succeeded in achieving

the objectives?

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ii) Whether the existing mechanism for environmental protection, hazardous and

municipal solid waste management needs to be replaced by a more effective one?

iii) Whether the criminal sanction theory has proved effective in deterring the

polluters from polluting the environment?

iv) Whether the existing laws regulating environmental protection, hazardous and

municipal solid waste management needs a thorough overhauling?

v) What precise role the judiciary has played in protecting and safeguarding

environment?

vi) Whether the existing municipal solid and industrial hazardous waste management

system protect public health, environment and natural resources?

1.8 Research Hypotheses

The hypotheses of the present study are:

1. The legislations regarding the environmental protection and proper management of

hazardous and municipal solid wastes are neither comprehensive nor adequate.

2. The cost effective mechanism provided under the hazardous waste management rules

hinders the rules from achieving its object.

3. The poor implementation of the solid waste management rules still keeps the country

in a polluted atmosphere.

4. The Bio-Medical Waste (Management and Handling) Rules suffer from certain basic

shortcomings. As a result they have become ineffective in protecting the environment

generally and health of the people in particular.

5. Non-awareness and inadequacy of efficient law on e-waste management could not

mitigate the environmental pollution of e-waste.

1.9 Research Methodology

The research work is doctrinal in nature. Accordingly to suit the nature of

research, various research methods such as analytical method, evaluative method and

comparative method are employed. Analytical method is used to analyze various

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provisions of the Indian Constitution, all other legal provisions relating to environmental

protection, hazardous, solid waste management and judicial decisions. The researcher has

applied the evaluative method, in order to find out the efficacy and adequacy of the

existing laws in combating the environmental degradation. Comparative method is also

applied mainly to compare the waste management laws in India with other countries.

In this research, for the purpose of exploring and identifying various statutory

provisions and judicial decisions, web based legal data bases were relied. As a part of the

doctrinal research the researcher has collected data from different sources (i.e. primary

and secondary). Under primary sources, substantial and relevant authority has been

availed. Under the secondary sources, the researcher has collected published and

unpublished60 persuasive data from multiple sources.

1.10 Chapterisation

The entire research work has been divided into eight chapters.

The first chapter is “Introduction” which deals with the components of the

environment, close relationship between man and environment, the concept of the

environmental protection, the problem of wastes in the present and the past, how the

accumulation of the waste causes major sanitary and health problems to the people and

the sincere efforts of the government to combat problems causing environmental

degradation, the evolution of the law to handle pollution and other environmental

problems in India, principles and doctrines evolved by the Supreme Court for protection

of the environment. It also covers the methodology adopted for this thesis.

The second chapter titled “The Indian Constitution and Environmental

Protection” a detailed discussion is made to analyze the various Constitutional mandates

which have aimed to conserve and safeguard the environment. The obligations of the

State as well as the citizens towards protection of the environment, the right to life

guaranteed under the constitution which includes right to livelihood, right to clean

drinking water, right to live in a healthy environment, right to know environment etc., are

discussed. The special attention provided by the Indian judiciary for protection of

60 Published and Unpublished data includes Books and Articles written by eminent authors and experts,discussion papers, edited collections, research papers and relevant internet sources.

21

environment with formulation of certain new principles and pronouncement of new

doctrines also has been analyzed.

The third chapter captioned “Common Law and Other Legislative Measures”

looks at the matter from two different perspectives, namely, common law aspects of

environmental law and the statutory control of environmental pollution. It has been

shown that the common law remedies for pollution control exist as additional remedies to

the one provided under the specific legislations concerning environmental protection. The

chapter also summarizes the relevant provisions of earlier legislations concerning

environmental protection and also makes an indepth insight into the recent legislations

enacted to prevent and control environmental pollution. The chapter involves a critical

examination of the provisions of the Water (Prevention and Control of Pollution) Act

1974, the Air (Prevention and Control of Pollution) Act 1981 and the Environment

(Protection) Act 1986 etc. An effort has been made to point out the loopholes existing in

the legislations under the study and offer suggestions to strengthen the legal control of

environmental pollution.

In the fourth chapter “Municipal Solid Wastes Management” discuses the

conceptual framework, characterization and classification of the solid waste, physical and

chemical composition of waste, impact of improper management. The Generation,

collection, segregation and storage of municipal solid waste provided under the

Municipal Solid Wastes (Management and Handling) Rules, 2000 have been

analysed. In this chapter, the researcher also deals with the transportation, disposal and

processing methods of solid wastes. Further the chapter discusses with the role of rag

pickers. The chapter highlights judiciary’s role on the management of municipal solid

waste. It also covers the primary responsibility of local self- government institutions such

as panchayats and municipalities regarding the management of solid wastes.

In the fifth chapter titled “Hazardous Wastes Management”, the regulatory

definition of “Hazardous Wastes and Hazardous Substances” and its applicability,

identification, classification and characterization of hazardous wastes has been explained.

The effect of hazardous wastes on health and environment has been focused. The

transboundary movements of hazardous wastes, import and export of hazardous wastes

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for recovery, reuse or recycling and illegal traffic are elaborately discussed with relevant

judicial pronouncements. Responsibilities of the occupier for handling hazardous wastes

and substances, authorization and cancellation powers of the SPCBs for handling

hazardous wastes are analysed. The operations involving Treatment, Storage and

Disposal Facilities (TSDF) of hazardous wastes, liabilities of the hazardous waste

generator, transporter and operator of TSDF under Hazardous Wastes (Management,

Handling and Transboundary Movements) Rules 2008 are analyzed comprehensively.

In the later part of this chapter deals with the categories of bio-medical waste, the

impact of bio-medical waste on health and environment, obligation of the occupier to

manage and handle bio-medical waste, the process of segregation, treatment and disposal

of bio-medical waste under the “Bio-Medical Waste (Management and Handling)

Rules 1998” has been critically evaluated. The role of the judiciary to conserve, protect

and preserve the purity and sanctity of environment has also analysed.

The sixth chapter “Electrical and Electronic Waste Management” deals with

the legal definition of the e-waste which includes computer and computer component

segments, the consumer electronics (Television Segments) and telecommunicating

segments. The various components of the e-wastes, how it generates in India and its

adverse effects on human health and environment, the pollutants and their occurrence in

waste electrical and electronic equipments are discussed. The transboundary movements

of hazardous e-waste under the Hazardous Wastes (Management, Handling and

Transboundary Movements) Rules 2008 and Management and Handling of E-Wastes

under the E-Wastes (Management and Handling) Rules 2011 are analyzed. The

responsibility of the State Pollution Control Board or the Pollution Control Committee

regarding monitoring of units recycling hazardous e-waste has been highlighted. In

addition to this India’s stand on liberalizing import rules and loopholes in the legislation

being critically analyzed.

The seventh chapter titled “Hazardous and Solid Wastes Management Laws in

Developed and Developing Countries – A Comparative Analysis”. In this chapter the

waste management and environment protection laws in India with developed and

developing nations, Environmental protection laws in developed countries especially

23

United Kingdom, United States of America, Germany and Singapore has been analysed.

Municipal solid wastes management in Asian countries, electrical and electronic waste

management in India and Switzerland, bio-medical waste management in Asian and

African countries and the problem of hazardous wastes management in developed and

developing countries has been comparatively analysed.

The eighth chapter “Conclusion and Suggestions” the researcher gives his own

concrete conclusion and pragmatic and remedial suggestions for strengthening the

efficacy of the existing legal mechanism for proper management of hazardous and solid

wastes.