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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT     PETITION     (C)     No.657     of     1995   

RESEARCH FOUNDATION FOR SCIENCE, … PETITIONER TECHNOLOGY AND NATURAL RESOURCE POLICY    

             VS.

UNION OF INDIA & ORS. … RESPONDENTS

J     U     D     G     M     E     N     T   

ALTAMAS     KABIR,     J.   

1. This writ petition has been filed by the  

Research Foundation for Science Technology and

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Natural Resource Policy, through its Director, Ms.  

Vandna Shiva, for the following reliefs :

“1. direct the Union of India banning all  imports of all hazardous/toxic wastes;

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

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

On 29th October, 1995, this Court directed  

notice to issue on the writ petition and also on  

the application for stay.

2. The basic grievance of the Writ Petitioner was  

with regard to the import of toxic wastes from  

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industrialized countries to India, despite such  

wastes being hazardous to the environment and life  

of the people of this country.  The Writ Petitioner  

sought to challenge the decision of the Ministry of  

Environment and Forests permitting import of toxic  

wastes in India under the cover of recycling,  

which, according to the Petitioner, made India a  

dumping ground for toxic wastes.  It was alleged  

that these decisions were contrary to the  

provisions of Articles 14 and 21 of the  

Constitution and also Article 47, which enjoins a  

duty on the State to raise the standards of living  

and to improve public health.  In the writ petition  

it was also contended that Article 48A provides  

that the State shall endeavour to protect and  

improve the environment and to safeguard the  

forests and wildlife of the country.   

3. In the writ petition, Ms. Vandna Shiva, the  

Director of the Petitioner Foundation, who is a  

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well-known environmentalist and journalist, while  

highlighting some of the tragedies which had  

occurred on account of either dumping or release of  

hazardous and toxic wastes into the atmosphere,  

such as the tragedy which took place in the Union  

Carbide factory at Bhopal in 1984, referred to the  

BASEL Convention on the Control of Transboundary  

Movements of Hazardous Wastes and their disposal.  

It was submitted that an international awareness  

had been created under the BASEL Convention against  

the movement of hazardous wastes and their disposal  

in respect whereof the United Nations Environment  

Programme (UNEP) had convened a Conference on the  

Global Convention on the Control of Transboundary  

Movements of Hazardous Wastes pursuant to the  

decision adopted by the Governing Council of UNEP  

on 17th June, 1987.  The said Conference met at the  

European World Trade and Convention Centre, Basel,  

from 20th to 22nd March, 1989. India also  

participated in the Conference.  On the basis of  

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the deliberations of the Committee, the BASEL  

Convention on the Control of Transboundary  

Movements on Hazardous Wastes and their Disposal  

was adopted on 22nd March, 1989.  It was the  

grievance of the Writ Petitioner that since India  

became a signatory to the BASEL Convention on 22nd  

September, 1992, it should have amended the  

definition of “hazardous wastes”, as provided in  

Article 3 read with Articles 4.1 and 13 of the said  

Convention. It was the further grievance of the  

Writ Petitioner that India should have enacted laws  

in regard to the Transboundary Movement procedures  

with regard to hazardous wastes.  Some of the  

relevant provisions of Article 4 of the aforesaid  

Convention have been quoted in the writ petition  

and are extracted hereinbelow :

1. (a) Parties exercising their right to  prohibit the import of hazardous wastes or  other wastes for disposal shall inform the  

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other parties of their decision pursuant  to Article 13.

(b) Parties shall prohibit or shall not  permit the export of hazardous wastes and  other wastes to the Parties which have  prohibited the import of such wastes, when  notified pursuant to sub-para (a) above.

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

2. Each Party shall take the appropriate  measures to :

xxx xxx

(c) Ensure that persons involved in the  management of hazardous wastes or other  wastes within it take such steps as are  necessary to prevent pollution due to  hazardous wastes and other wastes arising  from such management and, if such  pollution occurs, to minimize the  

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consequences thereof for human health and  the environment;

(d) Ensure that the transboundary movement  of hazardous wastes and other wastes is  reduced to the minimum consistent with the  environmentally sound and efficient  management of such wastes, and is  conducted in a manner which will protect  human health and the environment against  the adverse effects which may result from  such movement;

xxx xxx

(g) Prevent the import of hazardous wastes  and other wastes if it has reason to  believe that the wastes in question will  not be managed in an environmentally sound  manner.”  

 4. Even restrictions on transboundary movement  

between parties contained in Article 6 of the  

Convention, inter alia, provide that the State of  

export shall not allow the exporter to commence the  

transboundary movement until it has received  

written confirmation that the notifier has received  

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from the State of import confirmation of the  

existence of a contract between the exporter and  

the disposer specifying environmentally sound  

management of the wastes in question.   

5. On 25th March, 1994, 65 countries which  

participated in the Convention agreed by consensus  

to ban all exports of hazardous wastes from OECD to  

Non-OECD countries immediately. It is the grievance  

of the Writ Petitioner that inspite of such  

consensual decision to ban all exports of hazardous  

wastes from OECD to Non-OECD countries, consistent  

efforts were made by the industrialized countries  

to break down the Non-OECD solidarity and to weaken  

the resolutions adopted at the BASEL Convention,  

and, in the process, Asia was fast becoming a vast  

dumping ground for international waste traders.   

6. In the Writ Petition various instances were  

provided of the type of toxic wastes imported into  

the country under the garb of recycling.   The Writ  

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Petitioner has also drawn the attention of the  

Court to the provisions of the Hazardous Wastes  

(Management & Handling) Rules, 1989, hereinafter  

referred as the H.W.M.H. Rules, 1989, and  

complained of the fact that the same had not been  

implemented both by the Central Government and the  

State Governments and Union Territories and their  

respective Pollution Control Boards.  

7. Based on the said allegations, this Court  

initially asked all the State Governments and Union  

Territories and their respective Pollution Control  

Boards to submit affidavits as to how far the  

provisions of the aforesaid Rules had been  

implemented.  The Central Government was asked to  

file a comprehensive affidavit in respect thereof.  

From the affidavits filed, this Court appears to  

have come to the conclusion that the States and  

their respective authorities did not seem to  

appreciate the gravity of the matter and the need  

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for taking prompt measures to prevent the adverse  

consequences of such neglect. In the said  

background, this Court by its order dated 13th  

October, 1997, appointed a High-Powered Committee,  

with Prof. M.G.K. Menon as its Chairman, and  

referred 14 issues to the Committee on which it was  

required to give its report and recommendations.  

Since the said 14 terms of reference are of great  

relevance in the matter of disposal of the writ  

petition, the same are reproduced hereinbelow :-

 “(1) Whether and to what extent the hazardous  wastes listed in the Basel Convention have been  banned by the Government and to examine which  other hazardous wastes, other than listed in  the Basel Convention and the Hazardous Wastes  (Management and Handling) Rules, 1989, require  banning.

(2) To verify the present status of the units  handling hazardous wastes imported for  recycling or generating/recycling indigenous  hazardous wastes on the basis of information  provided by the respective States/UTs and  

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determine the status of implementation of the  Hazardous Wastes (Management and Handling)  Rules, 1989 by various States/UTs and in the  light of directions issued by the Hon'ble  Supreme Court.

(3) What safeguards have been put in place to  ensure that banned toxic/hazardous wastes are  not allowed to be imported?

(4) What are the changes required in the  existing laws to regulate the functioning of  units handling hazardous wastes and for  protecting the people (including workers in the  factory) from environmental hazards?

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

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

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

(8) To identify the criteria for designation  of areas for locating units handling hazardous  wastes and waste disposal sites.

(9) To determine as to whether the  authorisations/permissions given by the State  Boards for handling hazardous wastes are in  accordance with Rule 5(4) and Rule 11 of the  Hazardous Wastes Rules, 1989 and whether the  decision of the State Pollution Control Boards  is based on any prescribed procedure of  checklist.

(10) To recommend a mechanism for publication  of inventory at regular intervals giving  areawise information about the level and nature  of hazardous wastes.

(11) What should be the framework for  reducing risks to environment and public health  by stronger regulation and by promoting  

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production methods and products which are  ecologically friendly and thus reduce the  production of toxics?

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

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

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

Each one of the said terms of reference are of  

special significance as far as the reliefs prayed  

for in the writ petition are concerned.  The said  

High Powered Committee, comprised of experts from  

different fields, submitted its report after making  

a thorough examination of all matters relating to  

hazardous wastes.   

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8. On 14th October, 2003, the Writ Petition was  

taken up by this Court to consider the report of  

the High Powered Committee on the Terms of  

Reference which had been made to it.  Although,  

initially, the deliberations with regard to the  

contents of the Writ Petition were confined to  

different toxic materials imported into India, at  

different stages of the proceedings, a good deal of  

emphasis came to be laid on the issue relating to  

imported waste oil lying in the ports and docks, as  

well as on ship breaking. This Court observed that  

the ship breaking operations could not be allowed  

to continue, without strictly adhering to all  

precautionary principles, CPCB guidelines and upon  

taking the requisite safeguards, which have been  

dealt with extensively in the report of the High  

Powered Committee, which also included the working  

conditions of the workmen.   

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9. One of the other issues which was required to  

be dealt with was the disappearance of hazardous  

waste from authorized ports/Indian Container  

Depots/Container Freight Stations and also as to  

how to deal with the containers lying there.  Since  

disappearance of hazardous waste was one of the  

Terms of Reference, by order dated 10th December,  

1999, this Court directed that a list of importers  

who had made illegal imports be placed on record.  

Since the same was not done, this Court on 3rd  

December, 2001, directed the Government to inquire  

into the matter, which resulted in the appointment  

of an eight-member Committee by the Government,  

chaired by Mr. A.C. Wadhawan.  The report dated 26th  

July, 2002, submitted by the said Committee  

suggested that action should be taken against the  

importer for illegal import under the Customs Act,  

1962, and also under the Central Excise Act, 1944.  

This Court categorized the matter into two parts.  

The first part related to imports made and cleared,  

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where the consignments had already found their way  

to the market. The second part related to the  

stocks of hazardous waste lying at various  

ports/ICDs/CFSs.  The question which arose was as  

to how the said stock was to be cleared from where  

they were lying.  This Court was of the view that  

the stock in question could be divided into two  

categories; one, relating to imports of goods which  

were banned under the H.W.M.H. Rules, 1989, as  

amended up to date or falling under the banned  

category as per the Basel Convention and the other  

relating to waste in respect whereof there was no  

ban and being regulated, it was permissible to  

recycle and reprocess the same within the  

permissible parameters by specified authorized  

persons having requisite facilities under the  

Rules, as amended up to date.  The Court directed  

that the said consignments falling under the said  

category were to be released or disposed of or  

auctioned in terms of the Rules, to the registered  

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recyclers and reprocessors.  However, in case the  

importer of such goods remained untraceable, the  

authorities were directed to deal with the same at  

the risk, cost and consequences of the importer.  

It was specified that the consignment of such  

importer could not be allowed to remain at the  

ports etc. indefinitely, merely because the  

importer was not traceable.   

10. For the purpose of dealing with such  

consignments where the importer could not be  

traced, this Court was of the view that the same  

should be dealt with, disposed of/auctioned by a  

Monitoring Committee which was appointed by the  

Court by the said order itself. The Monitoring  

Committee was comprised of existing members of the  

Committee constituted by the Ministry of  

Environment and Forests, along with one Dr. Claude  

Alvares, NGO and Dr. D.B. Boralkar.  The Committee  

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was directed to oversee that the directions of this  

Court were implemented in a time-bound fashion.  

11. One of the other issues which came up for  

consideration before this Court was the MARPOL  

Convention which made it compulsory for signatory  

nations to allow discharge of sludge oil for the  

purposes of recycling.  In the wake of the other  

issues which were taken up by this Court while  

considering the report of the High Powered  

Committee and that of the Wadhawan Committee, the  

issue relating to the provisions of the MARPOL  

Convention was set apart for decision at a later  

stage.   

12. The original MARPOL Convention was signed on  

17th February, 1973, but did not come into force.  

Subsequently, in combination with the 1978  

Protocol, the Convention was brought into force on  

2nd October, 1983.  As will be noticed from the  

acronym, the expression “MARPOL” is the short form  

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of “Marine Pollution”.  The same was signed with  

the intention of minimizing pollution on the seas,  

which included dumping, oil and exhaust pollution.  

Its object was to preserve the marine environment  

through the complete elimination of pollution by  

oil and other harmful substances and the  

minimization of accidental discharge of such  

substances.  As far as this aspect of the matter is  

concerned, the Central Government was directed to  

file an affidavit indicating in detail how the said  

oil was dealt with.  The issue relating to the  

import of such sludge oil was left unresolved for  

decision at a subsequent stage.   

13. However, during the course of hearing in regard  

to the import of waste oil purportedly in violation  

of the H.W.M.H. Rules, 1989, the two dominating  

principles relating to pollution, namely, the  

polluter-pays principle and precautionary  

principle, were examined at length.  The report of  

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the Committee indicated that the hazardous waste  

oil was imported into the country in the garb of  

furnace oil and, in fact, the containers and the  

vessels in which they were being transported, were  

also highly polluted, causing a tremendous risk to  

the environment and to human existence.  

Ultimately, by the said order of 14th October, 2003,  

certain directions were given regarding the  

procedure to be adopted, with regard to ship  

breaking, to the Central Pollution Control Board,  

to prepare a national inventory for rehabilitation  

of hazardous waste dump sites.  The State Pollution  

Control Boards were directed to ensure that all  

parties dealing in hazardous chemicals which  

generated hazardous wastes, displayed online data  

in that regard outside their respective factories,  

on the pattern of Andhra Pradesh.  The Ministry of  

Environment and Forests were also directed to  

consider making provision for Bank Guarantees.  

Certain recommendations were also made with regard  

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to legislation in order to destroy any trans-

boundary movement of hazardous wastes or other  

wastes and to punish such illegal trafficking  

stringently.   

14. The matter rested there and only interim  

directions were given from time to time till it  

surfaced again before the Court on 25th January,  

2003.  On this occasion, the focus of this Court  

was directed towards the presence of hazardous  

waste oil in 133 containers lying at Nhava Sheva  

Port, as noticed by the High Powered Committee.  On  

the directions of the Court, the oil contained in  

the said 133 containers was sent for laboratory  

test to determine whether the same was hazardous  

waste oil or not.  After such examination it was  

found  to  be  hazardous  waste.  Considering the  

detailed report submitted by the Commissioner of  

Customs (Imports), Mumbai, and the Monitoring  

Committee, and after hearing learned counsel for  

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the parties, this Court observed that the issue to  

be determined in the proceedings was limited to the  

environment and in giving proper directions for  

dumping consignments in question, having regard to  

the precautionary principle and polluter-pays  

principle.  The main question before the Court was  

whether only a direction was required to be issued  

for the destruction of the consignment in order to  

protect the environment and, if not, in what other  

manner could the consignments be dealt with.  

Having considered the provisions of the Basel  

Convention on the Control of Trans-Boundary  

Movement of Hazardous Wastes and their disposal,  

and the report of the Monitoring Committing  

recommending destruction of the consignments by  

incineration, but also keeping in mind the fact  

that import of waste oil was permitted for the  

purpose of recycling, this Court directed that  

where the consignment was found fit for recycling,  

the same should not be destroyed, but recycling  

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should be permitted under the supervision of the  

Monitoring Committee. However, it was also recorded  

that if recycling was not considered advisable by  

the Government, the said consignment would also  

have to be destroyed by incineration along with  

other consignments. In such a case the cost of  

incineration was to be borne by the Government.   

15. Taking further note of the precautionary  

principle forming part of the Vienna Declaration  

and also having regard to the polluter-pays  

principle, this Court directed that it would be  

feasible to dispose of the oil under the  

supervision of the Monitoring Committee by  

incineration which would have no impact on the  

environment. It was directed that the 133  

containers in question be destroyed by incineration  

as per the recommendations of the Monitoring  

Committee and under its supervision, at the cost of  

the importer which was assessed by the Monitoring  

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Committee at Rs.12/- per kilo, which would have to  

be paid by the importers in advance.  In the order  

dated 9th May, 2005, this Court took up for  

consideration the Fifth Quarterly Report of March  

2005, filed by the Monitoring Committee from which  

it was seen that the waste oil contained in the 133  

containers had not been destroyed in terms of the  

direction given on 5th January, 2005, on account of  

non-payment of the cost of incineration by the  

importers. None of the importers had made the  

payment for incineration, though, a direction had  

been given to deposit the cost of incineration  

within four weeks from the date of the order.  

However, while taking serious note of non-payment  

of the incineration cost, this Court also felt that  

the destruction of the waste oil could not be  

delayed any further and directed immediate  

destruction of the waste oil in terms of order  

dated 5th May, 2005, by the Monitoring Committee and  

for the said purpose the cost of incineration was  

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to be initially borne by the Customs Department, to  

be recovered from the importers. Simultaneously, a  

further opportunity was given to the importers to  

deposit the cost of incineration with the  

Monitoring Committee within two weeks, failing  

which they were directed to remain present in the  

Court on 18th July, 2005, and to show-cause why  

proceedings for contempt should not be taken  

against them. The Monitoring Committee was directed  

to file a report in that regard on the next date.

16. One other aspect was also taken note of with  

regard to the directions given to the Jawaharlal  

Nehru Port Trust, Mumbai Port Trust and the  

Commissioner of Customs, to furnish requisite  

information with regard to the 170 containers,  

which were lying unclaimed, to the Monitoring  

Committee.  Since the same had not been filed  

within four weeks, as directed, the Chairperson of  

the Jawaharlal Nehru Port Trust, the Mumbai Port  

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Trust and the Chief Commissioner of Customs  

Department, were directed to file personal  

affidavits as to why the order of the Court had not  

been complied with. Subsequently, suo-motu contempt  

proceedings, being No.155 of 2005, in Writ  

Petition(C) No.657 of 1995, were initiated for non-

compliance of the directions contained in the order  

of 9th May, 2005.  

17. As far as the suo-motu contempt proceedings are  

concerned, the same are an off-shoot of the various  

orders passed in the writ proceedings and the same  

will have to be considered separately from the  

reliefs prayed for in the writ petition itself.   

18. At the very beginning of this judgment we have  

set out the reliefs prayed for in the writ  

petition, which, inter alia, include a prayer for a  

direction upon the Union of India to ban imports of  

all hazardous/toxic wastes and for a further  

direction to amend the rules in conformity with the  

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BASEL Convention and Articles 21, 47 and 48A of the  

Constitution.  Apart from the above, a declaration  

has also been sought that without adequate  

protection of the workers and the public and  

without any provision of sound environment  

management of disposal of hazardous/toxic wastes,  

the Hazardous Wastes (Management & Handling) Rules,  

1989, are violative of the Fundamental Rights  

guaranteed under the Constitution and, therefore,  

unconstitutional.   

19. Since the proceedings became a continuing  

mandamus, this Court from time to time took up  

several issues emanating from the first prayer in  

the writ petition to ban imports of all  

hazardous/toxic wastes.  However, in the process,  

one of the Conventions, namely, the impact of the  

MARPOL Convention, though referred to, was not  

decided and left for decision at the final hearing.  

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Accordingly, that aspect of the matter has to  

be decided also in these proceedings.

20. In one of the earlier orders passed on 5th May,  

1997, two Hon’ble Judges had occasion to deal with  

the enormous generation of hazardous wastes in the  

country each day and Their Lordships were of the  

opinion that the said fact alone indicated  

sufficiently the magnitude of the problem and the  

promptitude with which it was needed to be tackled  

before the damage became irreversible.  Their  

Lordships observed that prompt action was required  

to be taken, not only by the Central Government,  

but also by the State Governments and the Central  

and the State Pollution Control Boards.  

Accordingly, notice was given to all the State  

Governments and the State Control Boards to file  

their replies, and directions were also given that  

with effect from that date no authorization/  

permission would be given by any authority for the  

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import of wastes which had already been banned by  

the Central Government or by any order made by any  

Court or any other authority.  In addition, it was  

also directed that with effect from the date of the  

order, no import would be made or permitted by any  

authority or any person of any hazardous waste,  

which was already banned under the Basel Convention  

or was to be banned subsequently, with effect from  

the date specified therein.  Notice was also issued  

to the State Governments to show cause as to why an  

order should not be made directing closure of the  

units utilizing the hazardous wastes where  

provision had already been made for requisite safe  

disposal sites.  In addition, the State Governments  

were also directed to show cause as to why  

immediate orders should not be made for the closure  

of all unauthorized hazardous waste handling units.  

21. Thereafter, during the pendency of the matter,  

a fresh Special Leave Petition was filed, being  

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SLP(C)No.16175 of 1997, by Dr. Surendra Dhelia  

against the Union of India and others regarding  

import of contaminated waste oil and their  

disposal, since despite directions given to the  

State Governments and the Union of India, no  

affidavits were forthcoming and, as a result, on 4th  

February, 2002, a direction was given to the  

Secretary in the Ministry of Environment and  

Forests to file affidavits in compliance with the  

orders passed on 14th September, 2001 and 3rd  

December, 2001.  A sum of Rs.10,000/- was also  

imposed as costs against the Ministry of  

Environment and Forests.

22. The matter came up again before the Court on  

24th September, 2003, in which  the  H.W.M.H. Rules,  

1989, fell for consideration having regard to  

Section 11 of the Customs Act, 1962, which empowers  

the Central Government to prohibit either  

absolutely or subject to such conditions as may be  

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specified in the notification, the import and  

export of the goods, if satisfied that it is  

necessary so to do for any of the purposes stated  

in Sub-Section (2).  Since on behalf of the Central  

Government it was submitted that the import of 29  

items had already been prohibited under Schedule 8  

of the Hazardous Waste Rules, the Court directed  

the Central Government to issue a notification  

without further delay under Section 11 of the  

Customs Act, 1962, prohibiting the import of the  

said 29 items.  Their Lordships also noted that the  

BASEL Convention had banned 76 items.  Their  

Lordships were of the view that the remaining items  

were also required to be examined and, if  

necessary, to  issue  additional  notifications  to  

comply with any ban that may have been imposed in  

respect of remaining items.   

23. What is more important is the fact that the  

Hon’ble Judges took note of the provisions of the  

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Hazardous Waste Rules which allowed import of  

certain items subject to fulfillment of certain  

conditions.  This Court directed that before the  

imported consignment was cleared, the requisite  

notification was to be issued making the compliance  

of the said conditions mandatory.  In particular,  

in paragraph 7 of Their Lordships’  order, a  

direction was given to the Competent Authority to  

the effect that while disposing of hazardous waste,  

in exercise of power under Sections 61 and 62 of  

the Major Port Trusts Act, 1963, they were required  

to ensure that the H.W.M.H. Rules, as amended up to  

date, and in particular, Rules 19 and 20 thereof,  

were complied with.   

24. The said direction becomes relevant in relation  

to the third prayer made in the writ petition, as  

referred to hereinabove, relating to the  

constitutionality of the H.W.M.H. Rules, 1989.  One  

thing is clear that even at the interim stage,  

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there was no challenge as such to the  

constitutionality of the aforesaid Rules and that,  

on the other hand, directions were given by the  

Court to ensure compliance thereof.

25. Then came the orders relating to the import of  

133 containers of hazardous waste oil, in the garb  

of lubricating oil, which led to the appointment of  

a Monitoring Committee to oversee the destruction  

by incineration of the waste oil, as well as the  

containers thereof.  Detailed orders having been  

passed in relation to the destruction of the waste  

and hazardous oil imported into the country in the  

garb of lubricating oil, and the directions given  

to the Monitoring Committee regarding re-export of  

the same, we will consider the impact of the MARPOL  

Convention against such background.   

26. The MARPOL Convention, normally referred to as  

“MARPOL 73/78”, may be traced to its beginnings in  

1954, when the first conference was held and an  

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International Convention was adopted for the  

Prevention of Pollution of Sea by Oil (OILPOL).  

The same came into force on 26th July, 1958 and  

attempted to tackle the problem of pollution of the  

seas by oil, such as,

(a) crude oil;  (b) fuel oil;  (c) heavy diesel oil; and   (d) lubricating oil.

27. The first Convention was amended subsequently  

in 1962, 1969 and 1971, limiting the quantities of  

oil discharge into the sea by Oil Tankers and also  

the oily wastes from use in the machinery of the  

vessel. Prohibited zones were established extending  

the setting up of earmarked areas in which oil  

could be discharged, extending at least 50 miles  

from the nearest land.  In 1971, reminders were  

issued to protect the Great Barrier Reef of  

Australia. 1973 saw the adoption of the  

International Convention for the Prevention of  

Pollution from Ships. The said Convention, commonly  

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referred to as MARPOL, was adopted on 2nd November,  

1973, at the International Marine Organization and  

covered pollution by :

(i) oil; (ii) chemicals; (iii) harmful substances in packaged form; (iv) sewage; and (v) garbage

Subsequently, the 1978 MARPOL Protocol was  

adopted at a Conference on Tanker Safety and  

Pollution Prevention in February, 1978.  

28. The overall objective of the MARPOL Convention  

was to completely eliminate pollution of the marine  

environment by discharge of oil and other hazardous  

substances from ships and to minimize such  

discharges in connection with accidents involving  

ships. The MARPOL 73/78 Convention has six  

Annexures containing detailed regulations regarding  

permissible discharges, equipment on board ships,  

etc.  They are as follows :

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

Annex II : Regulations for the Control of  Pollution by Noxious Liquid Substances  (Chemicals) in Bulk, 6 April, 1987.

Annex III : Regulations for the Prevention of  Pollution by Harmful Substances Carried by Sea  in Packaged Form, 1 July 1992.

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

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

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

29. Apart from the said Regulations, the MARPOL  

Convention also contains various Regulations  

with regard to inspection of ships in order to  

ensure due compliance with the requirements of  

the Convention.

30. India is a signatory, both to the BASEL  

Convention as also the MARPOL Convention, and is,  

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therefore, under an obligation to ensure that the  

same are duly implemented in relation to import of  

hazardous wastes into the country.  As we have  

noticed earlier, the BASEL Convention prohibited  

the import of certain hazardous substances on which  

there was a total ban.  However, some of the other  

pollutants, which have been identified, are yet to  

be notified and, on the other hand, in order to  

prevent pollution of the seas, under the MARPOL  

Convention the signatory countries are under an  

obligation to accept the discharge of oil wastes  

from ships.  What is, therefore, important is for  

the concerned authorities to ensure that such waste  

oil is not allowed to contaminate the surrounding  

areas and also, if suitable, for the purposes of  

recycling, to allow recycling of the same under  

strict supervision with entrusted units and,  

thereafter, to oversee its distribution for reuse.  

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31. As far as the first two prayers in the writ  

petition are concerned, the same have already been  

taken care of by the orders dated 13th October, 1997  

and 14th October, 2003.  By the first of the two  

orders, this Court appointed the High-Powered  

Committee with Prof. M.G.K. Menon as its Chairman  

and 14 issues were referred to the said Committee.  

After the said Committee submitted its Report,  

another Committee under the Chairmanship of Mr.  

A.C. Wadhawan was appointed to enquire into the  

disappearance of hazardous wastes from various  

ports and container depots, and the question  

relating to the working conditions of the workmen  

who handle such wastes.  After the Wadhawan  

Committee submitted its Report, various directions  

were given with regard to the handling of such  

hazardous wastes.  Furthermore, the contamination  

risks involved in ship breaking also came into  

focus in the light of the provisions of the  

Hazardous Wastes Rules, 1989, and directions were  

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given as to how ships, which were carrying wastes,  

were to be dealt with before entering into Indian  

waters, which included the prohibition on the  

exporting country to export such oil or substance  

without the concurrence and clearance from the  

importing country.  During the course of hearing,  

an issue was raised by Mr. Sanjay Parikh, learned  

counsel appearing for the petitioner, that some  

conditions may be laid down in relation to vessels  

containing hazardous wastes entering Indian waters  

without proper compliance with the provisions of  

the BASEL and the MARPOL Conventions. However,  

since the question of ship breaking and  

distribution of hazardous wastes are being  

considered separately in the contempt proceedings,  

in these proceedings we expect and reiterate that  

the directions contained in the BASEL Convention  

have to be strictly followed by all the concerned  

players, before a vessel is allowed to enter Indian  

territorial waters and beach at any of the beaching  

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facilities in any part of the Indian coast-line.  

In case of breach of the conditions, the  

authorities shall impose the penalties contemplated  

under the municipal laws of India.   

32. The directions contained in the second order is  

based on the polluter pays principle, which is duly  

recognized as one of the accepted principles for  

dealing with violation of the BASEL Convention and  

the H.W.M.H. Rules, 1989, and the same will be  

applicable whenever such violations occur.  

However, till such time as a particular product is  

identified as being hazardous, no ban can be  

imposed on its import on the ground that it was  

hazardous.  Such import will, however, be subject  

to all other statutory conditions and restrictions,  

as may be prevailing on the date of import.  

Accordingly, the general prayer made in the writ  

petition that the Government of India should put a  

total ban on all hazardous wastes, can be applied  

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in respect of such hazardous wastes as have been  

identified by the BASEL Convention and its  

Protocols over the years and/or where import into  

the country have been restricted by the municipal  

laws of India. In respect of such banned items,  

directions have already been given in the order  

dated 13th October, 1997, to issue a notification to  

ban the import of such identified hazardous  

substances. In the event, any other items have  

since been identified, the Central Government is  

directed to issue appropriate notifications for  

banning the import of such hazardous substances as  

well.

33. The third prayer, that in the event of non-

compliance, the provisions of the Hazardous Wastes  

(Management & Handling) Rules, 1989, should be  

declared as unconstitutional, cannot be granted,  

since the same are in aid and not in derogation of  

the provisions of Articles 21, 39(e), 47 and 48A of  

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the Constitution. In fact, as mentioned  

hereinabove, even at the interim stage, directions  

were given for compliance with the said Rules,  

particularly in the matter of destruction of the  

waste oil contained in 170 containers by  

incineration at the cost of the importer.   

34. The writ petition has been entertained and has  

also been treated by all concerned not as any kind  

of adversarial litigation, but litigation to  

protect the environment from contamination on  

account of attempts made to dump hazardous wastes  

in the country, which would ultimately result in  

the destruction, not only of the environment, but  

also the ecology as well and, in particular, the  

fragile marine bio-diversity along the Indian  

Coast-line.  The petitioner Foundation has played a  

very significant role in bringing into focus some  

very serious questions involving the introduction  

of hazardous substances into the country, which  

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needed the Courts’  attention to be drawn having  

regard to the BASEL Convention, aimed and  

protecting marine biology and countries having  

coast-lines alongside seas and oceans.   

35. The writ petition is, therefore, disposed of by  

reasserting the interim directions given with  

regard to the handling of hazardous wastes and ship  

breaking in the various orders passed in the writ  

petition from time to time and, in particular, the  

orders dated 13th October, 1997 and 14th October,  

2003.  The Central Government is also directed to  

ban import of all hazardous/toxic wastes which had  

been identified and declared to be so under the  

BASEL Convention and its different protocols.  The  

Central Government is also directed to bring the  

Hazardous Wastes (Management & Handling) Rules,  

1989, in line with the BASEL Convention and  

Articles 21, 47 and 48A of the Constitution.  The  

further declaration sought for that without  

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adequate protection to the workers and public, the  

aforesaid Rules are violative of the Fundamental  

Rights of the citizens and are, therefore,  

unconstitutional, is, however, rejected in view of  

what has been discussed hereinabove.

36. In the peculiar facts of the case, there will  

be no order as to costs.

………………………………………………………J.    (ALTAMAS KABIR)

………………………………………………………J.    (J. CHELAMESWAR)

New Delhi Dated: 6th July, 2012.         

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