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CASE NO.: Writ Petition (civil)  657 of 1995

PETITIONER: Research Foundation for Science Technology and Natural Resource Policy

RESPONDENT: Union of India and Others

DATE OF JUDGMENT: 11/09/2007

BENCH: Dr. Arijit Pasayat & S. H. Kapadia

JUDGMENT:

JUDGMENT

O R D E R I.A. No. 34 of 2006 IN WRIT PETITION (CIVIL) NO. 657 OF 1995 S.H. Kapadia, J.

       A short question which arises for determination in this IA is whether  this Court should grant permission for dismantling of the ship "Blue Lady"  at Alang, Gujarat.

2.      The "Blue Lady" ex SS Norway was a passenger liner built at  Chantier De Altantic, St. Nazaire, France in 1961. It was a steam turbine  driven vessel with a power and rating of 30,000 KW and 40,760 HP  respectively. Now the vessel is registered as a Barge under the flag of  Bahamas vide official number 710763. The vessel is very luxurious in it’s  kind and many dignitaries like President of America, Queen of England have  travelled during it’s golden period. The said ship was beached on  15/16.8.2006 off the Alang coast. The said ship was the passenger ship. It  was constructed in 1952. It originated from France. Its last origin was from  Norway. The ship is about 291 mt. long. It is 34 mt. wide. It has the capacity  of 45886 MT. It has 16 floors. It has 1400 rooms for passengers  accommodation. It has restaurant, cinema, health club and free shopping  complex.

3.      Alang is located on the west coast of Gujarat. It is the largest ship  recycling yard in the world. It is one of the choicest ship-scrapping  destination for the ship owners around the world. There are 183 plots in all  to carry out the ship recycling activities. Till today Alang has provided  approximately 23 million tonnes of steel in the last 10 years. On 17.2.2006  when the above writ petition came up for hearing before this Court, we  found the controversy concerning ship-breaking a recurring controversy.  Therefore, this Court decided to lay down norms concerning infrastructure,  capacity of Alang to handle large volume of ship-breaking activity,  safeguards to be provided to the workers who were likely to face health- hazard on account of the incidence of ship-breaking activity, the  environmental impact assessment, regulation of the said activity and strict  regulation of the said activity. Accordingly, this Court constituted a  Committee of Technical Experts to submit a report on the aforestated  aspects.

4.      We quote hereinbelow the said order dated 17.2.2006:         "It is brought to our notice that the ship  Clemenceau has been directed to be taken back to  France. Therefore, immediate controversy relating to  Clemenceau ship seems to be over. But the problem is a  recurring one. First and foremost requirement as of today  is to find out the infrastructural stability and adequacy of  the ship breaking yard at Alang. It has to be found out

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whether the same are operational/operating in a way that  environmental hazards and pollution are avoided and/or  equipped to meet the requirements in that regard. For that  purpose, it is necessary to constitute a Committee of  technical experts who can, after obtaining views and  inviting suggestions from those who would like to give  them to find out whether the infrastructure as existing at  Alang presently is adequate. If according to the  Committee, it is not adequate it shall indicate the  deficiencies, and shall also suggest remedial measures to  upgrade the infrastructural facilities. For this purpose,  Union of India shall, as early as practicable, constitute a  Committee of technical experts, some of them having  Navy background, preferably retired officers. The  Committee shall submit its report to this Court within  eight weeks. The expenses of the Committee shall be met  by the Ministry of Environment and Forests. Since at  various points of time various guidelines have been  indicated, it would be appropriate if they are properly  codified to be followed scrupulously by all concerned  including the Government authorities."

      5.      In continuation of the said order dated 17.2.2006 a further order was  passed by this Court on 12.3.2007 calling for a further report by TEC in  which this Court directed inclusion of Gujarat Maritime Board (GMB) and  Gujarat Pollution Control Board (GPCB) to assist this Court on three  aspects, namely, pre-conditions to be satisfied by the recycler for  dismantling and reusability of 80% of the asbestos. This Court also sought  assistance of various authorities, including the petitioner herein, on steps to  be taken to control the environmental impact of asbestos dust likely to be  generated in the process of dismantling. We quote hereinbelow the said  order in extenso: "Having  heard  learned  counsel  for  the  parties,   we  are  of  the  view  that  a  further  report  by  the   T.E.C.  is  required  to  indicate  as  to  whether   conditions  stipulated  have  been  complied  with  before   any  action  can  be  taken  on  the  dismantling  plan.  Let   the  applicant  in  I.A.  No.34  place  materials  before   T.E.C.  as  to  how  and  in  what  manner  compliance   has  been  done.  While  deciding  the  acceptability  of   the  stand  of  the  applicant,  the  T.E.C.  shall  involve   the  Gujarat  Maritime  Board  and  the  Gujarat   Pollution  Control  Board  and  take  note  of  their   views.  In  the  report  apart  from  examining  the   general  compliance  of  the  conditions,  specific  focus   has  to  be  drawn  on  three  particular  aspects,  namely,   (a)  whether  pre-conditions  for  dismantling  have  been   complied  with;  (b)  whether  80%  of  the  asbestos  is   reusable  as  is  contended  by  the  applicant;  (c)  what   steps  have  been  taken  to  control  the  environmental   impact  of  asbestos  dust  generated  in  the  process  of   dismantling.  The  T.E.C.  shall  also  suggest  as  to   which  agency  shall  oversee  and  monitor  the   dismantling  in  case  it  recommends  acceptance  of  the   dismantling  plan.  The  report  shall  be  submitted   within  six  weeks.  The  other  aspects  relating  to  the   reversibility  or  impermissibility  of  the  beaching,   manner  of  dealing  with  hazardous  from  asbestos  and   other  hazardous  material  shall  be  considered  after  the   receipt  of  the  report  from  the  T.E.C.  The  T.E.C.   which  was  constituted  pursuant  to  the  order  of  this   court  having  submitted  its  report  is  stated  to  have   become  functus  officio  shall  examine  the  matter  as   directed."  

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6.      Ultimately, the TEC submitted its report on the aforestated aspects on  10.5.2007. That report has been accepted by this Court vide order dated  6.9.2007 in writ petition no. 657/95 etc.. We accepted that report mainly  because it is all pervasive. It contains opinions of experts including retired  navel officers. It indicates State-of-the-Art mechanism to regulate removal  of asbestos. The report clarifies that "beaching" is an irreversible process.  TEC has also examined the recycling plan and the dismantling plan  submitted by the recycler. Apart from the GMB and GPCB, various other  authorities like Gujarat Enviro Protection & Infrastructure Ltd. (GEPIL)  have also contributed their knowledge and expertise in the preparation of the  report dated 10.5.2007. There was also an apprehension rightly expressed by  the petitioner regarding radio active material on board the vessel "Blue  Lady". Therefore, an immediate inspection of the said vessel beached at  Alang since 16.8.2006 was undertaken by Atomic Energy Regulatory Board  (AERB) and by GMB. The apprehension expressed by the petitioner was  right. However, as the matter stands today, AERB and GMB have certified  that the said vessel Blue Lady beached in Alang no more contains any radio  active material on board the ship.

7.      By the said report dated 10.5.2007, which has been accepted by us  vide order dated 6.9.2007, TEC has also recommended grant of permission  for dismantling of the ship "Blue Lady" at Alang (Gujarat) in accordance  with the recycling plan submitted by M/s Priya Blue Industries Pvt. Ltd.  (recycler). Under the said report, TEC has stated that regular monitoring of  the ship-breaking operations of Blue Lady shall be undertaken by the  competent authority mentioned in the report so as to ensure strict compliance  with the guidelines given by TEC in respect of safety and health of the  workmen and environment. At this stage, we may mention that breaking of  the vessel Blue Lady will provide to this country 41000 MT of steel and it  would give employment to 700 workmen.

8.      In his Keynote Address, on ’Global Constitutionalism’, reported in  Stanford Law Review vol. 59 at p. 1155, Lord Goldsmith, Her Majesty’s  Attorney General (UK), stated that British Constitution though unwritten is  based on three principles, namely, rule of law, commitment to fundamental  freedoms and principle of proportionality. European Convention on Human  Rights ("ECHR") also refers to the concept of balance.  

9.      In the case of Research Foundation for Science Technology  National Resource Policy  v.  Union of India and anr. (2005) 10 SCC 510  a Division Bench of this Court has held that "precautionary principle" is a  part of the concept of sustainable development. We quote hereinbelow  paragraphs 16 and 43 of the said judgment, which are as follows:

"16. The legal position regarding applicability of the  precautionary principle and polluter-pays principle which  are part of the concept of sustainable development in our  country is now well settled. In Vellore Citizens’ Welfare  Forum v. Union of India (1996) 5 SCC 647 a three-Judge  Bench of this Court, after referring to the principles  evolved in various international conferences and to the  concept of "sustainable development", inter alia, held  that the precautionary principle and polluter-pays  principle have now emerged and govern the law in our  country, as is clear from Articles 47, 48-A and 51-A( g )  of our Constitution and that, in fact, in the various  environmental statutes including the Environment  (Protection) Act, 1986, these concepts are already  implied. These principles have been held to have become  part of our law. Further, it was observed in Vellore  Citizens’ Welfare Forum case that these principles are  accepted as part of the customary international law and  hence there should be no difficulty in accepting them as  part of our domestic law. Reference may also be made to

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the decision in the case of A.P. Pollution Control Board  v. Prof. M.V. Nayudu (1999) 2 SCC 718 where, after  referring to the principles noticed in Vellore Citizens’  Welfare Forum case  the same have been explained in  more detail with a view to enable the courts and the  tribunals or environmental authorities to properly apply  the said principles in the matters which come before  them. In this decision, it has also been observed that the  principle of good governance is an accepted principle of  international and domestic laws. It comprises of the rule  of law, effective State institutions, transparency and  accountability and public affairs, respect for human  rights and the meaningful participation of citizens in the  political process of their countries and in the decisions  affecting their lives. Reference has also been made to  Article 7 of the draft approved by the Working Group of  the International Law Commission in 1996 on  "Prevention of Transboundary Damage from Hazardous  Activities" to include the need for the State to take  necessary "legislative, administrative and other actions"  to implement the duty of prevention of environmental  harm. Environmental concerns have been placed on the  same pedestal as human rights concerns, both being  traced to Article 21 of the Constitution. It is the duty of  this Court to render justice by taking all aspects into  consideration. It has also been observed that with a view  to ensure that there is neither danger to the environment  nor to the ecology and, at the same time, ensuring  sustainable development, the court can refer scientific  and technical aspects for an investigation and opinion to  expert bodies. The provisions of a covenant which  elucidate and go to effectuate the fundamental rights  guaranteed by our Constitution, can be relied upon by  courts as facets of those fundamental rights and hence  enforceable as such (see People’s Union for Civil  Liberties v. Union of India (1997) 3 SCC 433. The Basel  Convention, it cannot be doubted, effectuates the  fundamental rights guaranteed under Article 21. The  right to information and community participation for  protection of environment and human health is also a  right which flows from Article 21. The Government and  authorities have, thus to motivate the public participation.  These well-enshrined principles have been kept in view  by us while examining and determining various aspects  and facets of the problems in issue and the permissible  remedies.  

xxx    43.     Another aspect which deserves to be noticed is  about the effect of ship-breaking activity covered by  TOR (14). We are not suggesting discontinuing of ship- breaking activity but it deserves to be strictly and  properly regulated. When the ship arrives at a port for  breaking, the authorities concerned have to be vigilant  about the hazardous waste which may be generated if  appropriate timely action by various agencies, in  particular, the Maritime Board and SPCB are not taken.  The major ship-breaking activity in India is at Alang in  the State of Gujarat and, therefore, the Gujarat Maritime  Board and Gujarat SPCB have to be alive to the  consequences of the appropriate steps to be taken before  the breaking activities start. According to the  recommendations of HPC, the Inter-Ministerial  Committee comprising Ministry of Surface Transport,

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Ministry of Steel, Ministry of Labour and Ministry of  Environment should be constituted with the involvement  of labour and environment organisations and  representatives of the ship-breaking industries.                                                                            (emphais supplied ) 10.     The concept of "balance" under the principle of proportionality  applicable in the case of sustainable development is lucidly explained by  Pasayat, J. in the judgment of this Court in the case of  T.N. Godavarman  Thirumalpad  v.  Union of India and Ors. reported in (2002) 10 SCC 606  vide para 35 which reads as under:

"35.      It cannot be disputed that no development is  possible without some adverse effect on the ecology and  environment, and the projects of public utility cannot be  abandoned and it is necessary to adjust the interest of the  people as well as the necessity to maintain the  environment. A balance has to be struck between the two  interests. Where the commercial venture or enterprise  would bring in results which are far more useful for the  people, difficulty of a small number of people has to be  bypassed. The comparative hardships have to be  balanced and the convenience and benefit to a larger  section of the people has to get primacy over  comparatively lesser hardship."

The above paragraphs indicate that while applying the concept of  "sustainable development" one has to keep in mind the "principle of  proportionality" based on the concept of balance. It is an exercise in which  we have to balance the priorities of development on one hand and  environmental protection on the other hand.   

11.     India after globalization is an emergent economy along with Brazil,  Russia and China. India has economic growth of above 9%. However, that  growth is lop-sided. A large section of the population lives below poverty  line. India has largest number of youth in the world. Unemployment is  endemic. Article 21/14 is the heart of the Chapter of fundamental rights.  Equality of opportunity is the basic theme of Article 14. In an emergent  economy, the principle of proportionality based on the concept of balance is  important. It provides level playing field to different stakeholders. Ship  breaking is an industry. When we apply the principle of sustainable  development, we need to keep in mind the concept of development on one  hand and the concepts like generation of revenue, employment and public  interest on the other hand. This is where the principle of proportionality  comes in. Even in the case of  Blue Lady, the figures indicate that 700  workers would be employed in ship breaking. Further, 41000 MT of steel  would be made available. To that extent, there will be less pressure on  mining activity elsewhere. Even in the judgment, referred to above, vide  para 43, it has been observed that this Court is not in favour of  discontinuance of ship-breaking activity. However, this Court has held that  the said activity needs to be strictly and properly regulated. This concept of  balancing is given importance by Dr. Amartya Sen in his book  "Development as Freedom". Today ship-breaking provides resources not  only in terms of steel but also in terms of employment, skill and capability.  Competition exists in the said business of ship-breaking amongst  Bangladesh, Pakistan and India. In our view, if "capability" is a resource  with our skilled workers it needs to be protected by strict implementation of  Health Hazard Preventive Measures suggested in the report of TEC and  implementation of Recycling Plans, generation of pollutants like asbestos to  the extent of 20% can be almost eliminated. As stated, 85% of asbestos is in  form of ACM in panels which is reusable. Therefore, the report provides  State-of-the-Art mechanism which is the key element of "sustainable  development".

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12.     One of the main objections raised on behalf of the petitioner was  regarding non-quantification of two contaminants, namely, ACM and PCB  (rubber). At this stage, we may clarify that ACM exists as material of  construction in various vessel components like partitions, walls, ceilings etc.  which are an integral part of the vessel structure. In the present case, the  vessel does not contain single kilogram of asbestos and/or ACM as cargo.  However, there is presence of ACM as "material of construction" in various  vessel components like partitions, walls, ceiling etc.. Major quantity of  ACM (85%) is in the partitions and ceilings of rooms and galleries. These  ACMs are in the panels. TEC, in its report, stated that recyclable material  alone can be sold, therefore, PCB cannot be sold. The report further  indicates that the quantity of PCB in the present case has to be dumped in  land-fills. It is important to note that there are only two alternatives, namely,  incineration or dumping PCB in land-fills. In both the cases, there is  likelihood of pollution. As regards asbestos is concerned, we find that 85%  is insulation and panels. This is where the dismantling plan has to be  applied. It is this plan which takes care of the panels and insulation  containing asbestos. Under section 3.3.2, the recycler was required to submit  a dismantling plan containing requirements to be complied with. We quote  hereinbelow section 3.3.2 of the report of the Committee of Technical  Experts on Ship Breaking Activities dated 30.8.2006: "3.3.2.         Ship Specific Dismantling Plan:

Before starting the recycling process, the recycler should submit a  Dismantling Plan to the authorities, which should include:

a)      Details about the ship, and in particular, a fair assessment of  hazardous wastes/hazardous materials.

b)      Ship breaking schedules with sequence of work.

c)      Operational work procedures.

d)      Availability of material handling equipment and PPEs.

e)      Plan for removal of oil and cleaning of tanks.

f)      Hazardous waste handling and disposal plan.

g)      ’Gas-free and fit for hot work’ certificate issued by the  Department of Explosives, or any competent agency authorized  by the Department of Explosives.

h)      Identification and marking of all non-breathable spaces by the  Recycler.

i)      Identification and marking of all places containing/likely to  contain hazardous substances/hazardous wastes.

j)      Confirmation to the effect that ballast water has been  exchanged in the high seas.  The tasks should address all the  three phases of recycling, i.e.

i)      Preparation phase. ii)     Dismantling phase. iii)    Waste stream management

k)      Asbestos being a major area of concern, the scheme for     removing asbestos, and asbestos containing materials (ACMs)  on board, and on shore, should be specifically provided.  The  plan should include arrangements for handling, treatment and  disposal.  Locations having asbestos/ACMs should be marked  before commencing dismantling operations.

l)      Systems and procedures to be followed to document and keep

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track of all hazardous waste generated during recycling, as well  as hazardous substances found onboard the ship, and their  transport to the disposal facility or registered recycling facility  should be provided."

13.     The report dated 10.5.2007 of TEC states that the Dismantling Plan  submitted by recycler in the case of Blue Lady complies with section 3.3.2.  As stated above, the "precautionary principle" is embedded in the doctrine  of sustainable development.  In the present case, one of the main  apprehensions, justifiable, concerns removal of ACM and PCB from engine  room, vent room and insulated pipelines.  According to the removal plan, all  major quantity of ACM (85%) is in form of wall partitions, ceiling and  roofing in rooms and gallery.  It is reusable.  Therefore, the panels,  partitions, ceilings etc. have to be removed in such a way that the ACMs are  not damaged.  The removal plan submitted by the recycler has been  approved by the TEC.  Similarly, air monitoring has to be conducted for the  air-borne ACM, if any.  For that purpose the Committee has recommended  appropriate respiratory protection to be provided to the workmen.  For each  category of work to be done in different areas of the vessel, gears have been  provided to the workmen in the form of whole body coveralls, gloves, safety  shoes, helmet, safety goggles etc.  Similarly, as regards waste generation, the  TEC report suggests by way of protection air monitoring respiratory  protection to employees, leak tests, negative pressure checks etc.  Similarly,  storage of contaminated wastes in the land-fills has also been incorporated in  the recommendations of the TEC.  Therefore, in our view, in the light of the  above conditions to be fulfilled by the recycler, the principle of sustainable  development based on the concept of "balance" stands satisfied.

        14.     We may mention one important aspect. Asbestos in the panel exists  even in false ceiling constructed in commercial establishments. It is only  when those panels are broken that asbestos as a hazardous substance  emerges. In the present case, 85% of the asbestos is in the panels and  insulation that quantity is reusable. As far as dismantling is concerned, the  plan complies with section 3.3.2. However, it is likely that in some cases  asbestos as a substance may emerge and, therefore, the report of TEC has  taken care to look into and approve the Recycling Management Plan. In our  view, the report of TEC is foolproof. It has taken into account international  standards to regulate ship-breaking activity. The quantity of PCB has been  determined by Gujarat Enviro Protection & Infrastructure Ltd. ("GEPIL").  There is NOC given by GMB as also by GPCB in the matter of ship- breaking of the ship "Blue Lady". The report dated 10.5.2007 has evolved  State-of-the-Art mechanism to regulate removal of asbestos. Recycling is a  key element of sustainable development. The Committee has examined each  and every aspect concerning recycling and dismantling of the ship "Blue  Lady". Lastly, we may point out that there is no dispute that on 15/16.8.2006  the vessel beached off Alang coast. It is not in dispute that the process of  beaching is irreversible. Taking into account the contours of TEC report  dated 10.5.2007 and the opinion of TEC that the recycler M/s Priya Blue  Industries Pvt. Ltd. has complied with the norms regarding dismantling and  recycling, we accept the report of the TEC dated 10.5.2007 and we  accordingly grant permission to the said recycler to dismantle the said ship  "Blue Lady" as recommended by TEC (see: para 12 of the TEC report dated  10.5.2007).

15.     Accordingly the I.A. stands disposed of.