Yearbook of International Environmental Law - Vol. 7

By Günther Handl; Jutta Brunnée et al. | Go to book overview
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substances listed in Annex A of the Montreal Protocol is less than 0.3 kilograms per capita, India is covered under Art. 5(1) of the Protocol.

(e) Hazardous Waste Trade

India ratified the Basel Convention on Transboundary Movements of Hazardous Wastes in 1992. Prior to the decision of the third meeting of the COP to prohibit hazardous waste exports from "Annex VII" countries to states not listed in Annex VII (i.e., developing countries), India had relied upon domestic delegated legislation, the Hazardous Wastes (Management and Handling) Rules 1989, to regulate issuance of licenses for import of hazardous waste imports. However, in view of large-scale clandestine imports of hazardous wastes into the country, in April 1996, the Delhi High Court banned such waste imports for recycling, reprocessing or dumping purposes. As a sequel to this order of the Court, in September 1996, the Ministry of Environment and Forests issued a Draft Notification under the Environment Protection Act ( 1986), proposing to prohibit the import of cyanide wastes, mercury, and arsenic-bearing wastes.

Bharat Desai

ii. Domestic Judicial Decisions

(1) The Constitutional Right to Life as a Form of Environmental Protection

The judicial tendency to construe environmental issues in terms of fundamental constitutional rights continued in India in 1996. Although damages and restitutionary remedies for environmental harm exist, these remedies offer inadequate relief. In such cases, petitioners have instead brought questions of personal injury and damage to property caused by environmental harm before the courts as writ petitions for violations of fundamental rights. The Supreme Court has recognized the right to a healthy environment as part of the "right to life" under Art. 21 of the Constitution of India. Art. 32 allows the Supreme Court to issue writs and directions for the enforcement of fundamental rights.

(2) The Private Entity as "State"

Until recently, private entities escaped liability for violations of fundamental rights. While fundamental rights are enforceable by the courts under Art. 32 of the Constitution, this mechanism only works against entities that satisfy the term "state" as defined in Art. 12. Judicial uncertainty as to whether private entities fell within the definition of "state" has prevented the award of damages against them. For example, in the well-known 1987 Oleum Gas Leak case, the Supreme Court considered the issue, but did not characterize the polluting company involved as a "state" authority.

Recent decisions, however, have made private companies liable for environmental harm without a determination of their status as "state." In IndianCouncil for Enviro-Legal Action v. Union of India


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Yearbook of International Environmental Law - Vol. 7
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