Right to pollution-free environment – now a legal right

The Constitution (Forty-second Amendment) Act, 1976 was the first to address environmental issues by introducing Articles 48A (Protection and improvement of environment and safeguarding of forests and wildlife) and 51A (Fundamental Duty to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures) among others.

Additionally, the project on Environmentally Sound Management of Medical Waste in India resulted from India becoming a signatory to the Stockholm Convention on Persistent Organic Pollutants. The Global Environment Facility approved the project where the Ministry of Environment, Forest, and Climate Change, GoI, is the national executing agency and the United Nations Industrial Development Organization (UNIDO) is appointed as the implementing agency.  

GoI has been prompt in this and has actioned the following regulations for waste management –

1. Municipal waste– Solid Waste Management Rules, 2016
2. Plastic waste– Plastic Waste Management (Amendment) Rules, 2018
3. E-waste– E-Waste (Management) Rules, 2016 and E-Waste Management Amendment Rules, 2018
4. Bio-medical waste– Bio-Medical Waste Management (Amendment) Rules, 2019 and Bio-Medical Waste Management (Amendment) Rules, 2019
5. Construction and Demolition (C&D) waste– Construction and Demolition Waste Management Rules, 2016
6. Hazardous waste– Hazardous and Other Wastes (Management and Trans-boundary Movement) Rules, 2019
7. Battery waste– Battery Waste Management Rules (Proposed), 2020 and Batteries (Management and Handling) Rules, 2010
8. Radioactive waste– Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987

A report by the Associated Chambers of Commerce and Industry of India (ASSOCHAM) and Velocity in 2018 revealed that India is likely to generate about 775.5 tonnes per day of bio-medical waste by 2022.

COVID-19 has caused a surge in bio-medical waste generated globally. The administration of 8B vaccine doses has generated 144,000 tonnes of waste alone. The increased use of PPE kits (mostly made of plastic) is a cause for concern. In India, volumes of medical waste rose 17% during the first wave of the pandemic, creating waste treatment challenges in rural areas.

The global medical waste management market is expected to grow from $16.23 B in 2021 to $17.03 B in 2022 at a compound annual growth rate (CAGR) of 5.0% and is expected to grow to $20.69 B in 2026 steadily.

A study done by IIT Delhi showcases factors to consider before selecting a sustainable healthcare waste (HCW) disposal firm. These include the staffing hired, the number of years for which an outsourcing firm has been functional, the technology available with HCW firm, HCW collection instruments and vehicles available, and risk associated with the handling and disposal of HCW, among others.

Eco-friendly packaging, reusable PPE, the use of recyclable or biodegradable materials, and investments in non-burnable waste treatments are recommended by WHO as countermeasures to the increased bio-medical waste caused by COVID-19.

WHAT DOES THE LAW SAY?

Article 21 guarantees the Protection of Life and Personal Liberty. In the Charan Lal Sahu Case, a Constitutional Bench of SC interpreted the right to life guaranteed by Article 21 to include the right to a wholesome environment.

In Subhash Kumar v. State of Bihar, SC expanded the scope of Article 21 and stated that the enjoyment of pollutant-free water and air for full enjoyment of life as far as the release of industrial pollution into rivers is concerned is a fundamental right.

With environmental laws garnering attention, judgments delivered by National Green Tribunal have also seen a widely used principle – Polluter Pays Principle (PPP), which has now received statutory recognition from the National Green Tribunal Act, 2010 and has heavily been relied upon.

SC in Vellore Citizens Welfare Forum v. Union of India and Indian Council for Enviro – Legal Action v. Union of India established PPP as the law of the land.

“Sustainable Development” requires remediation of the damaged environment. As interpreted by SC, PPP is the absolute liability for harm to the environment extending to compensate the victims of pollution and the cost of restoring environmental degradation. As such, the polluter is liable to pay the cost to the individual sufferers and the cost of reversing the damaged ecology.

The evolving legislative support and citizens’ awareness are key contributors to India becoming a serious contributor to sustainable waste management models. However, on-ground challenges are enormous.

In Bonani Kakkar v Oil India Limited & Ors., SC stayed NGT’s order of establishing separate committees for –

1. fixing the responsibility for the failures and laying out a roadmap for safety protocols to be implemented
2. enquiring into the non-compliance of statutory provisions
3. assessing the damage to and restoration

The stay was granted as relief on account of two prayers –

1. significant delay will be caused if various committees are established after the Expert Committee has submitted a comprehensive report under an erstwhile order of NGT;
2. the expert committee to assess the damage and cost of restoration comprised of the Managing Director of one respondent company, breaching principles of natural justice.

As we continue to focus on reducing our footprint and resolving the challenges faced to implement solutions, Ab Initio, our quarterly newsletter, provides detailed insights on waste management and climate change.

Sources:

1. 5.-Waste-handlers-manual_FLIP-CHART.pdf (moef.gov.in)
2. 8 Types of Wastes and their Management Rules in India (delhigreens.com)
3. Different Types of Medical Waste | INCINER8
4. IIT Delhi study shows path to hospitals struggling with sustainable medical waste disposal – Education Today News (indiatoday.in)
5. COVID-19 has created a medical waste surge, the WHO reports | World Economic Forum (weforum.org)
6. Annual Report IDML V.03_highres (1).pdf (investindia.gov.in)
7. IELRC.ORG – Polluter Pays Principle in India: Assessing Conceptual Boundaries and Implementation Issues
8. https://www.weforum.org/agenda/2022/02/medical-waste-plastic-environment-covid/
9. https://www.globenewswire.com/news-release/2022/02/15/2384978/0/en/Medical-Waste-Management-Global-Market-Report-2022.html
10. Article 21 of Indian Constitution- A Mandate To Pollution Free Environment (legalserviceindia.com)
11. Bonani Kakkar v Oil India Limited & Ors. – SC Civil Appeal No(s).2201/2021

This is only for informational purposes. Nothing contained herein is, purports to be, or is intended as legal advice and you should seek legal advice before you act on any information or view expressed herein. Endeavoured to accurately reflect the subject matter of this alert, without any representation or warranty, express or implied, in any manner whatsoever in connection with the contents of this. This isn’t an attempt to solicit business in any manner.