Importing toxic waste under the guise of recycling

Written by Indu Bhan | Indu Bhan | Updated: Jul 11 2012, 09:24am hrs
The point of preventive detention

The Supreme Court has held that preventive detention in the case of economic offences like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (Cofeposa) is justified if the act is prejudicial to state security. In the case of Dropti Devi vs Union of India, it said that there is no constitutional mandate that preventive detention (PD) cannot exist for an act where such an act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for PD if such act is prejudicial to the state security. After all, the essential concept of PD is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the State, it stated, while dealing with the effect of the repealed Foreign Exchange Regulation Act, 1973 (FERA). Devi, the mother of Raj Kumar Aggarwal, who was detained in September 2009 by the finance ministry for indulging in hawala dealings, had challenged the constitutional validity of Section 3(1) of Cofeposa. The crux of the argument advanced by Devi was that after the repeal of FERA, conviction under it would no longer be relevant for initiating proceedings under the Foreign Exchange Manipulators (Forfeiture of Property) Act. Besides, Articles 14, 19 and 21 of the Constitution do not contemplate PD for an act where no punitive detention (arrest and prosecution) is contemplated, thus it cannot be termed as prejudicial so as to invoke the power of PD, she argued.

Laying a Maharaja to rest

The Supreme Court has rejected one of the worlds oldest tour operators Cox & Kings plea to run the super-luxurious train Maharaja Express in partnership with Indian Railways Catering and Tourism Corporation (IRCTC). However, it gave liberty to the disputing parties to approach the arbitral tribunal for resolution of their disputes. The apex court endorsed the Delhi High Courts order upholding IRCTCs decision to terminate its 15-year lease arrangement with the leading UK travel firm for operating the train, which was launched in 2010 with modern amenities like WiFi, plasma TVs, DVD players and individual climate control in addition to luxurious salons, etc. The apex court, however, said that the foreign operators remedy, if any, would lie in claiming damages from IRCTC for breach of agreement. Cox & Kings argued that it had invested more than R15 crore and it could not be shut by IRCTC suddenly, causing huge embarrassment to it internationally as most of its advance bookings were from foreigners.

Keeping India toxin-free

Directing the Central government to amend rules in conformity with the Basel convention, the Supreme Court asked it to ban the import of all toxic wastes, declared hazardous under international conventions. In a landmark judgment, the apex court also ruled that ailing foreign ships waiting to be dismantled in ship-breaking yards at Alang must first be washed of their toxic materials at their place of origin before they entered Indian waters. Disposal of waste material such as oil, cotton, dead cargo or inorganic material like hydrated or solidified elements, theromocol pieces, glass wool, rubber, broken tiles et al should be done in a scientific manner so that 99.9% contamination is washed off away from India. In case of breach of the conditions, the authorities shall impose the penalties contemplated under the municipal laws of India, the apex court said while disposing of a PIL filed by Research Foundation for Science Technology and Natural Resource Policy in 1995. The NGO alleged that despite being a signatory, India was not taking adequate steps in management of hazardous substances during the import of oil, ship breaking and other activities. It had also challenged the decision of the environment ministry permitting the import of toxic wastes under the cover of recycling.

indu.bhan@expressindia.com