ASHOK Vs. UNION OF INDIA

JUDGEMENT

(1.) On the basis of a letter by one Dr. Ashok addressed to the Chief Justice of India indicating therein that several insecticides, colour additives, food additives are in widespread use in this country which have already been banned in several advanced countries as it has been found that those insecticides are carcinogenus, this Court treated the letter as a petition under Article 32 of the Constitution and took up the matter as a Public Interest Litigation. Notices were issued to the Union of India through the Secretary, Ministry of Health and Family Welfare, through the Secretary, Ministry of Environment and Forest, through the Secretary, Ministry of Agriculture, through Secretary, Ministry of Industry and Chemicals as well to Pesticides Association of India through its Secretary Shri H. S. Bahl and the Asbestos Cement Products Manufacturers Association. The Annexure to the said letter contained 21 chemicals and additives and a prayer was made that the respondents should be directed to ban forthwith the import, production, distribution, sale and use of the listed chemicals and articles so that the citizens will not be exposed to the hazards which the aforesaid insecticides/additives are capable of being caused. It was alleged generally in the petition that food, water, air, drug and cosmetic contamination are the general results of the widespread use of the chemical in question and most of these chemicals have been banned in the United States of America and rest are in the process of being banned. Though initially the annexure to the letter contained only 21 items of insecticides and additives but by way of an application 19 other chemicals were added and thus in all the prayer of the petitioner is to prevent manufacture, production and use of 40 insecticides and/or additives. Counter-affidavits were filed on behalf of Secretary, Pesticides Association of India, Ministry of Environment and Forest Director General of Health Services, President of the Chemical Industries Association, Madras. A supplementary affidavit was also filed on behalf of the Ministry of Environment and Forest. A further affidavit was also filed in August 1989 by the Deputy Director General of Health Services giving the available information on the listed chemicals as to the carcinogenicity status on the basis of research carried out by the Indian Council of Chemicals Research. It was indicated in the said affidavit that the benefits accrued as a result of use of chemicals should be weighed against anticipated risk and the whole issued be examined in totality before arriving at a conclusion. When the matter was heard on 24th September, 1996 this Court observed that there has been a time lag between the filing of the affidavits and the date of hearing of the petition and there is no material on record to indicate as to whether any further steps have been taken with regard to the control of use of these harmful pesticides and chemicals and whether any further study has been made in that regard. The Union of India was, therefore, granted time to file a further detailed affidavit clarifying the entire position. When the case was taken up for hearing on 5th November, 1996 in transpired that no further affidavit has been filed pursuant to the earlier direction and therefore, the Court was constrained to pass an order requiring the officers of different Ministries involved to the present in the Court on the next date of hearing and required affidavit should be filed. Pursuant to the aforesaid order of the Court an additional affidavit was filed by the Under Secretary to the Government of India, Ministry of Agriculture on 18th November, 1996 stating therein the steps taken by the Government of India in prohibiting manufacture, import and use of certain chemicals and in permitting restricted use of certain other chemicals and insecticides. To the aforesaid affidavit a Notification dated 26th May, 1989 was annexed as Annexure 1 which Notification indicates that the Government of India had set up an Expert Committee with a view to review continuance use in India of pesticides that are either banned or restricted for use in other countries. To the said additional affidavit also annexed a Notification dated 15th May, 1990 of the Ministry of Agriculture which Notification indicates that the Central Government after considering the recommendations of the Expert Committee and after consultation with the Registration Committee set up under the Insecticides Act 1968 cancelled the Certificate of Registration in respect of Aaldrin restricted the use of Dieldrin, for Locust Control in desert areas by Plant Protection Adviser to the Government of India and restricted the use of Ethylene Dibromide as a Fumigant for Foodgrains through Central Government, State Government, Government Undertakings, and Government Organisation like Food Corporation of India and others. To the said Additional Affidavit yet another Notification of the Ministry of Agriculture dated 20th September, 1986 was annexed as Annexure III which Notification prohibited the manufacturing, import and use of heptachlor and Chlordane and cancelled the Registration Certificate issued by the Registration Committee to various persons. It also prohibited the use of Alderin in India and cancelled the Registration Certificate issued under the Insecticides Act, It further transpires the Government of India, Ministry of Agriculture by Notification dated 1st January, 1996 cancelling Certificate of Registration in respect of Benzene Haxachloride with effect from 1st April, 1997, being of the opinion that the manufacture and use of Benezene Haxachloride shall be phased out progressively and the production of its technical grade by the existing manufacturers reduced to the extent of 50 per cent by 31st March, 1996 and totally banned by 31st March, 1997. The Notification also indicated that the Certificate of Registration in respect of Benezene Haxachloride shall be deemed to have lapsed in respect of those registrants who are yet to obtain manufacture licences. On behalf of the Ministry of Environment and Forest, the Director Ministry of Environment also filed an Additional Affidavit indicating the steps taken by the Environment Ministry prohibiting import of Polychlorinated Biphenyls, Ministry of Health also filed an additional affidavit and Ministry of Petro-chemicals also filed an affidavit. When the case was taken up for hearing on 21st November, 1996 and these affidavits of different Ministries were placed it was noticed that the affidavits have dealt with 21 chemicals and additives which were listed in the original petition. But there has been no response in respect of 19 other chemicals and insecticides referred to in the additional list. It was also brought to the notice of the Court some writ petitions have been filed by the manufacturers of certain chemicals challenging the Notification of the Government cancelling the Registration Certificate issued under the Insecticides Act and prohibiting the manufacture with effect from 1st April, 1997. It was stated that a consolidated affidavit be filed by the Union of India in consultation with all the concerned Ministries in respect of 40 chemicals so that it would be easier to deal with the problem. In response to the aforesaid direction of the Court dated 27th November, 1996 the Under Secretary to the Government of India in the Ministry of Agriculture has filed a consolidated affidavit dealing with 40 items of chemicals and the steps taken by the Government of India in the concerned Ministries either prohibiting and/or allowing restricted manufacture, use of chemicals on a thorough study and on receipt of recommendations from the experts. On the basis of applications by manufacturers, in respect of the writ petitions pending in Allahabad High Court and Madras High Court orders were passed by this Court to get the cases transferred and those transferred petitions were also heard along with main writ petition.

(2.) Chemicals, besides food, air and water, have always been part of mans environment in some meausre. Even before the earliest civilizations or agriculture, the lightning flash caused oxygen and nitrogen of the air to combine, producting oxides of nitrogen and the said nitrogen dioxide eventually combined with water and oxygen to form nitrates that significantly enriched the soil. Volcanos contributed sulphurdioxide and particulates to the air just as fossil fuel burning power plants do today. But the total contribution of these sources was small and the earth was thinly populated. With the rise of civilizations, the sources of population increased day by day. Water polluted with lead from the pipes used in the Roman distribution system in postulated to have contributed to the decline of Rome. Miners and metal workers in the Middle Ages suffered occupational diseases from dusts and fumes generated in their trades. As early as in 1713 Ramazzini in his book "Diseases of Workers" has described the effects of many of these chemicals pollutants on workers. When coal was introduced as a fuel the problem of pollution became much worse with combinations of fog and smoke in London becoming most famous. With the recognition of the deleterious effects of chemicals, especially in the workplace, there began measures for the control of the release of these materials and the prevention of occupational diseases. The concentrations of many of these materials in the atmosphere were quite high. The scientists began research to find out the ways and means to reduce the contents of chemical in the atmosphere so as to check the health hazards. In 1945 Warren Cook of Switzerland published a list of the limits with abstracts of the information on which they were based. The United State Public Health Service established drinking water standards in 1946, Henry Smyth in 1956 reviewed the researches done in the field and proposed the name Threshold Limit Values for limiting air concentration for the working environment. The American Conference of Government Industrial Hygienists every year complied a list after annual review indicating the deleterious effect of several chemicals and pesticides on the human health and the said study is adopted by the Occupational Safety and Health Administration of the Department of Labour as a Regulation. Until 1960 there was no legislation and it is only in 1960s the Clean Air Acts were passed in the United States. There has been constant research on the use of chemicals and pesticides and its effect on the human health in most of the advanced countries and the industries also spend a substantial part of the money in establishing a research and development organisations. On the basis of experiments conducted and dates available the use of several chemicals and pesticides have been either totally banned or have been permitted to be used in a regulated manner depending upon the effect of such chemicals or pesticides on the human system. In all ages men faced difficulty in protecting their crops on the field from small animals and disease organism. An insect, a field mouse, the spore of a fungus, or a tiny root eating wrom is more difficult to deal with. Since these small organisms reproduce rapidly, their total eating capacity is very great. Small pests may also be carriers of disease. Malaria and yellow fever, spread by mosquitos, have killed more people than all wars. Not all insects, rodents, fungi, and soil miscroorganisms are pests. Most of them do not interfere with people, and many are directly helpful. Millions of small animals live within a single cubic meter of healthy soil. Most are necessary to the process of decay and hence to the recycling of nutrients. Fungi, too, are essential to the process of decay in all the worlds ecosystems. Pests have lived side by side with people for thousands of years. At times pest species have bloomed and brought disease and famine. But most of the time, natural balance has been maintained, and humans have lived together with insects in reasonable harmony. In modern times, people are no longer willing to accept these natual cycles. Human population is now so large that tremendous quantities of food and needed. One way to increase crop yields is to reduce competition from insects. Scientists studying a cabbage field in United State found 177 different species of insects of which only 5 species were significant pests. The agricutlural system is subject to the normal checks and balances of a natural ecosystem. If left alone, pest species are usually kept under control by their enemies. According to an estimate insects ate 10 per cent of the food crops in the United States in 1981 and at that time very few pesticides were used. The pest populations were controlled by insect predators, parasites and disease. But in the survey of 1970 it was found that the crop losses to insects rose to 13 per cent. The question, however, whether it is on account of chemical sprays or whether farmers would be better off if no pesticides were used at all still remains unanswered. There is no dispute that most chemical pesticides are poisonous to humans as well as to insects. The organophosphates which have been used extensively in North America since 1973 are much more poisonous than the DDT which was replaced by such organophosphates. Since mid 1940s many thousands of people have fallen sick or have died from severe pesticide poisoning every year. At present more than half of these are children who are exposed to the toxic chemical through carelessness in packing or storage. Most of the others are workers who handle these materials in the factory or on farms. Even workers working in the factory were chemicals are manufactured bring the pesticides dust home on their clothes and they poison the family as well. In July 1975 the Allied Chemical Company paid millions in damage suits and the plant was hut down. No amount of compensation paid in cash and make the people healthy again. People can avoid exposure to large doses of insecticides but it is impossible to avoid exposure to contaiminants in food, in the air and in drinking water. Scientists in thier anxiety to increase the production capacity of the soil and to prevent the food particles from various posts and insects have invented several insecticides which has caused deleterious effect on the human health. The broad spectrum pesticides have serious flaws. They upset ecosystem, poison people and animal and possibly cause cancer. On the bais of continued research in the field several such chemicals and insecticides have been totally banned not only in the United States of America but in several other advanced countries whereas in a developing country, like India, no effective measures have been taken so far. While examining the affidavits filed in this Court by different Ministries of the Government of India to find out what effective steps have been taken in prohibiting the manufacture of such insecticides and pesticides which have been banned in other countries particularly when its deleterious effect on the human health is a alarming, one thing is absolutely clear that in this country there has not been much study and research on the harmful effect of several such chemicals and pesticides. There is no coordinated organisation and the lack of coordination between different ministries of the Government who deal with different chemicals and pesticides make the people of this country suffer. It may be true that several such insecticides and chemicals may be required in certain contingency when epidemics like plague and dengue break. But that cannot be a ground for allowing the industrialists to manufacture such commodity when it is established that the use of the commodity is grossly detrimental to the human health. Take for example an insecticide called DDT. It acts as a nerve poison, paralyzing insects. It has been used to control insects which destroy food and forage crops and to kill disease carrying insects, such as mosquitoes that carry malaria and yellow fever and lice that carry typhus. DDT is a residual poison that retains its effectiveness in a sprayed area for weeks, although it may persist in the area for years. It is harmless to most plants. The chemicals was first prepared by Oothmar Zeidler, a German chemist in 1874. Its effectiveness was discovered and recognised by a Swiss scientist Paul Hermann Muller who won the Noble prize in 1948. It was used heavily in World War II, particularly in the Mid and South-Pacific theaters by spraying mosquito infected areas prior to invasion and occupation. The spray program continued after the war and was primarily responsible for eliminating malaria and yellow fever as major diseases. The said chemical, however, is toxic to people and animals. It accumulates in the bodies of animals that cat food contaminated with the substance. When dissolved in organic solvents, DDT can be absorbed through the skin. The chemical nature of DDT is not changed by process of metabolism, soil microorganisms or sun-light. It is dangerous to birds, to fish and other forms of aquatic life. Because of its potential danger to human health and its possible effect on several species its use has been totally banned in the United States of America by the Environmental Protection Agency since 1972. Soon thereafter the said insecticide has been banned in several other countries including Canada, Swedan and Denmark. But so far as India is concerned, it is now being produced only by M/s. Hindustan Insecticides Limited and the Director General of Health Services on getting information about the quantity required by respective States for their Public Health Programme puts it before the requirement Committee and only on the approval of the said Committee it is manufactured and sent to different States. Thus though it has not been fully banned but its manufacture and use has been controlled. We have taken the illustration with respect to one of the insecticides only for the purpose of indicating that several insecticides which have been banned in the advanced countries like America are still being permitted to be used in this country possibly because of certain necessity.

(3.) Agriculture was the principal activity of Indians till Nineteenth Century and more than seventy per cent population were dependent on agriculture for their livelihood. In the Twentieth Century the country saw industrial revolution. The rural population started migrating from villages to urban and industrial towns. But yet agriculture holds the dominant position in Indian economy. The growing realisation of acute problem of population explosion in Indian necessitated the policy makers, planners to make vigorous efforts to optimise agriculture production. The idea of green revolution was floated and effective steps were taken to mechanise the agricultural process and to modernise it by using fertilizers and spraying pesticides in order to achieve self sufficiency in food grains, commercial crops and other agricultural products. It was realise that endeavour should be made on war footing to boost agricultural production so as to fulfil the requirement of food our teeming millions. One of the hurdles in boosting agricultural production was excessive loss and destruction of crops and foodgrains by insects and pests. A need was, therefore, felt to import and manufacture the insecticides and pesticides to protect crops and plants from the damage of pets and insects. But the most dangerous crisis in the present day modern world is that of global atmospheric pollution. The eco-system has become imbalanced by uncontrolled use, abuse and misuse of natural resources and manufacture and use of hazardous products and chemicals resulting in endangering the very existence of human race. The excessive use of chemicals and pesticides for optimising agricultural production created alarming danger to health and safety of living beings in general and agricultural workers in particular. The impact of pesticides use on global environment may vary in magnitude and exhibits a variety of behavioural patterns and modes of actions. Pesticides affect mans eco system and their residues can get into the food chain. The amount of pesticide consumed by people depends on the manner of usage of pesticides particularly on farm crops, storage of the produce and its processing. In most of the developed countries the use of hard pesticides on agricultural crops has been either banned or restricted and other pest control programmes are adopted in order to maintain eco-system. But the developing countries are still using these pesticides without caring for side effects on environment. In recent times the Central Government has set up the Pesticides Environment Pollution Advisory Committee in the Ministry of Agriculture to review from time to time the environmental repercussions and to suggest measures, whenever necessary. It is a fact that pesticides considered hazardous in rich countries remain in use in the developing countries. Many of the developing countries lack scientific facilities for toxicological scrutiny as also for making proper cost assessment. It is true that different countries may have different requirements but it is difficult and dangerous to assume that pesticides banned or restricted in USA or other European countries will be acceptable in the Third World Countries. In India pesticides are used over the past four decades for crop protection and control of diseases like malaria. There has been much debate over the use of pesticides at the cost of environment and public health. One will have to weigh the benefit of use of pesticides and the adverse effect that produced on human health on account of such use of pesticides.