A powerful judicial remedy for waste management
India is the biggest plastic polluter in the world, according to a new study published in Nature, releasing 9.3 million tonnes (Mt) annually. This is equivalent to around a fifth of global plastic emission. Plastic emissions, according to this study, are defined as material (which includes both debris and open plastic burning) that has moved from managed or mismanaged systems (in which waste is subject to a form of control, however basic contained state) to the unmanaged system (the environment; uncontained state) with no control.
Evidence of an underestimation
The report goes on to say that India reports that its dumpsites (uncontrolled land disposal) outnumber sanitary landfills by 10:1 and, despite the claim that there is a national collection coverage of 95%, there is evidence that official statistics do not include rural areas, open burning of uncollected waste or waste recycled by the informal sector. This means that India's official plastic waste generation rate (approximately 0.12 kilograms per capita per day (kg cap−1 day−1) is probably underestimated and waste collection overestimated. According to this study, the plastic waste generation rate for India of 0.54 kg cap−1 day−1.
The alarming situation vis-à-vis plastic waste in the Indian Himalayan Region was highlighted in an Opinion page article in this daily, 'Mountains of plastic are choking the Himalayan States' (March 4, 2024). A salient point was the lack of data regarding the quantum and the quality of waste and the capacity to deal with plastic waste in this region.
Waste generation data regarding the total solid waste and plastic waste in the country is given in the Central Pollution Control Board's annual reports on implementation of Solid Waste Management Rules 2016 and based on data supplied by State Pollution Control Boards (SPCB) or Pollution Control Committees (PCC). In turn, these are based on data supplied by the municipal bodies in the respective States/Union Territories. There is nothing in any of the reports regarding the methodology adopted by SPCBs or PCCs or municipal bodies or any waste audit which explains how the figures have been arrived at. It is important that the methodology employed by whatever agency that is gathering the data is put out in the public domain and faces third party scrutiny so that the systems we create or propose to create for waste management are commensurate with the quantity and the nature of the waste that needs managing and processing. There is no accounting of waste being generated in rural India it seems, which comes under panchayati raj institutions, and also for a vast stretch of the country which does not come under the jurisdiction of any institutions of local self-governance.
The Supreme Court of India has observed that environmental protection is not only a regulatory obligation but also a constitutional imperative aimed at safeguarding the fundamental rights of individuals and preserving ecological balance.
There is an urgent need that we have cogent, reliable data about waste generation and its composition in the country. We also need to have data regarding the infrastructure that the country has built over the years to deal with the management and processing of this waste. This infrastructure could be geotagged to help in tracking. Every local government, whether in an urban or in rural area (they are the pivot of waste management as in the legal mandate in the country), has to be mandatorily linked with a material recovery facility (MRF), recyclers of various waste streams, extended producer responsibility (EPR) kiosks and sanitary landfills.
To operationalise EPR, all producers, importers, and brand owners (PIBOs) that have a legal obligation collectively can form kiosks across the country to gather waste from all local bodies. These kiosks could be set up depending on the quantum of waste expected, the geography of the area, and ease of access to these kiosks and other relevant factors. This is so that every urban and rural local body in the country has easy access to these kiosks where all waste that is covered under EPR can be deposited. PIBOs can employ people to segregate their waste at such kiosks so that various segments of waste can be taken care of according to the mandate of the law. This is not a simple exercise. But it is not not impossible either if there is a plan.
We need to know how much waste is being generated where and how it is being managed. As India is a technology powerhouse, it is time that we leverage this to solve our problems and set an example for the world.
Court verdict on tanneries
On January 31, a Division Bench of the Supreme Court gave a very heartening verdict in the form of continuing mandamus to ensure that the pollution caused by tanneries in Vellore of Tamil Nadu is reversed by employing necessary remediation programmes. The Court has constituted a committee that needs to report in four months on the compliance of the order. The Court itself has justified the need to ensure compliance. The Bench said, 'violations occur while various Supreme Court directives and environmental norms are flouted, and the schemes or plans framed by the Government remain on paper, failing to achieve any meaningful results. Thus, this Court, being the custodian of fundamental rights, must come to the rescue of the affected individuals/families and ensure that persistent wrongs are rectified and justice is actually done'.
It is absolutely imperative that constitutional courts in India adopt this approach and deal with matters of waste management in the same spirit. Justice will only be done in these matters when compliance with orders is ensured in a time-bound manner.
Focus on the polluter
The Court in the same matter reiterated that 'the polluter pays principle' casts absolute liability on the polluter for the harm caused to the environment and extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of sustainable development, and such a polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing damaged ecology. The Court has held that when there is a violation in compliance with the environmental laws (be it a result of engaging in activities directly involved in causing pollution or from a failure to take steps to curb pollution and restore the environment or violating any terms of licence granted by any State or central authority and acts detrimental to the environment, the effect of which causes or is likely to cause degradation of the environment), then the deeming fiction of polluting the environment becomes applicable. The polluter is not only liable to payment of compensation but has also to restore the environment.
Therefore, while the liability is clear, the process of determining an equitable compensation amount is fraught with challenges, as it must account for both the tangible and intangible damage inflicted on the environment and the affected communities. In this matter the Court applied the Government Pay Principle, and it is for the government to pay compensation to the affected individuals/families and recover the same from the polluters, until the damage caused to the ecology is fully reversed.
It is time that the waste management system in the country is also held accountable to millions whose health is impacted by the land, water and air pollution caused by unmanaged and mismanaged waste all across the country.
In fact, continuing mandamus could be the way forward to deal with pressing environmental issues to ensure compliance.
Archana Vaidya is an environment law consultant and an advocate at the High Court of Himachal Pradesh, at Shimla
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