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Indian Law on E waste:The mismatching variable?

Increase use of electronic and electronic equipment coupled with increase in population and changing consumption pattern is generating waste at an alarming rate in India. This is due to the advancement or development in technology. These developments in the modern times have led to manifestation of problem's which include the problem of massive amount of hazardous waste and other waste generated form electric products.

These hazardous wastes pose a huge threat to the human health and to the already depleting environment. The threat to the environment is in rise as the process of recycling of E-waste in India is done by the unorganized sectors who do not have the required technology to handle and curb the electronic waste, even with the toxics removed recycling will cause impact in the environment due to the emission while extracting valuables materials

The main reason for the accumulation of E-waste[1]:
  • Advancement in technology
  • Change in fashion style and status
  • Nearing the end of their useful life

Generally, the electronic waste are categorized into three types:
  • White goods: household appliances
  • Brown goods: TV’s, camcorders, cameras
  • Grey goods: computers, printer, fax machine, scanner etc.

The grey goods are is more toxic as compared to the white and brown goods. This kind of waste is posing a serious challenge in disposal and recycling both developed and developing counties. For example a computer contains different types of elements and compositions such as metals as well as hazardous materials like mercury, lead, and flame retardants.

Apart from this they also contain sophisticated bled of plastics which causes a grave damage to the environment due to their no decay nature which contaminates the soil , water which leads to release of toxic gases like dioxin and furan's[2].

According to a report of Confederation of Indian Industries, the total waste generated by electronic and electrical equipment in India has been estimated to be 1, 46,000 tons per year .

Evolution Of Laws In E-Waste

This issue remained overlooked for a very long time until very recently, no proper laws, provision or conferences by the countries to curb the electronic waste The first development at International level emerged at 1989 when The Basel Convention came into existence, the purpose of which was to reduce the movements of hazardous waste between nations and specifically to prevent transfer of hazardous waste from developed to less developed countries.

The Convention also ensures environmentally sound management of toxic and hazardous waste.[3] Basel Convention had an indirect application on electronic waste due to the presence of toxic and hazardous materials . The Basel Convention started to focus more on e-waste issues in 2002. After which the Nairobi Declaration was adopted which gave a mandate to the Secretariat to implement the environmentally sound management of e-waste. At national level, the Environment Protection Act came into being in 1986 for protection and improvement of the environment and the prevention of hazards to human beings, other living creatures, plants and property in the wake of Bhopal Gas Tragedy[4].

This Act being umbrella legislation dealt indirectly with e-waste as it deals with hazardous substance. Soon after that, the first comprehensive Rules to deal with hazardous wastes were issued by the Central Government, in July 1989, called the Hazardous Waste Management and Handling Rules 1989, framed under the enabling provisions of EPA, 1986. However, the 1989 Rules suffered from certain inherent limitations. Therefore, the rules have been amended later in the years 2000, 2003 and with final notification of the Hazardous Waste Management, Handling and Tran’s boundary Movement Rules, 2008.

Ministry of Environment, forests and Climate Change, for the first time, notified a set of rules known as Electronic waste management and handling Rules in 2011 under section 6 of Environment Protection Act, 1986[5].These rules were transported in to tackle the safe and environment friendly management, transporting, storing, recycling of e-waste and also to diminish the usage of hazardous substances during manufacturing of electrical and electronic equipment’s.

E-waste rules were later revised in 2016 and became E waste management Rules, 2016. For the first time, the concept of ‘Extended Producer Responsibility EPR was also introduced which made manufacturers liable for safe disposal of electronic goods.[6] The E-Waste Management Rules, 2016 have lately been modified by the Centre through notification dated 22nd March, 2018 to expedite effective implementation of the environmentally sound management of e-waste and it also amended the collection targets under EPR provision[7].

Impact Of Electroinc Waste

It is highly imperative that e-waste gets recycled in a safe, appropriate, and efficient manner in the developed country. Conversely, the scenario in most developing countries like India is quite unsettling. The reasons for this situation is poor infrastructure, lack of awareness and ineffective implementation of legislation, as a very small percentage of the total e-waste generated gets recycled in India. Most of the electronic waste is being sold as scrap and is further smashed, dismantled and recycled by the informal sector[8].

Currently, a majority of e-waste in India is being managed by the large organized informal sector which does not have the adequate means or awareness to deal with E-Waste appropriately. Informal sector indulges essentially in manual dismantling where they end up in open burning to recover precious materials used in E-waste, and open dumping of residual Therefore, this in turn leads to ineffective e-waste management which actually causes huge damage to the environment as well as human health.

It has been reported that about 95 percent of electronic waste in India is treated and processed in urban slums, where untrained workers carry out practices unsafe for human and environmental health as it results in the pollution of the land, air, and water. Seelampur is the largest informal sector of e-waste dismantling in India.

Mandoli, a region near Delhi is a similar place where e-waste burning takes place. Accidental leakages and evaporation of these substances occur at the electronic wastes dumping sites. As a result, most of these salvageable materials escape into the soil, polluting big areas of lands and making them unhealthy for farming. Moreover, metals such as mercury, cadmium and lead, which are usually discovered in device circuit boards, may percolate into groundwater, triggering devastating health issues[9].

It has been reported by the Centre for Occupational and Environmental Health at Maulana Azad Medical College in New Delhi that extreme level of lead, mercury and chromium is discovered in the bodies of these recyclers and dismantlers. This subsequently has a bearing on their bodies and results in damage to the respiratory, urinary and digestive systems. It also damages the immune system and have been associated to certain kinds of cancer. Therefore, the need of the hour is proper handling of electronic wastes to avert human suffering and in the foreseeable future, the long-term degradation of our environment and ecosystem is averted as well.

Almitra H. Patel v. Union of India
Almitra H. Patel filed a PIL on poor status of Delhi in respect to pollution on the authorities responsible for pollution control and environment protection who have failed in providing clean and healthy environment to the residents of Delhi. This case emphasized the importance of waste management which led to the formation of country’s first Municipal Solid Waste (Management and Handling) Rules 2000, issued under the Environment Protection Act, 1986.[10]

Legal Provisions Dealing With Electronic Waste

It is a well-known fact that the environmental quality is dwindling at a very fast pace due to such informal, unplanned and untrained treatment of E-wastes and as we discussed earlier, various reasons could be assigned for such deterioration. But one significant cause for such environmental degradation due to E-wastes is the inability of the law to deter violators. In many countries there are now legislations and statutes in place specifically to deter such crimes.

In India also many environmental legislations and the rules are there which are dealing with E-waste either directly or indirectly. Such legislations have not resulted in preventing environmental de gradation as penal provisions in environmental laws dealing with electronic wastes are weak, lenient, hard to impose, and unlikely to affect . The situation is aggravated by other problems like slow justice delivery system, poor monitoring and enforcement capacity of regulators, and lack of comprehensive databases to evidence violations, among others.

There are various legislations/rules dealing with E-wastes in environmental laws either directly and indirectly, to name a few are:
  • Electronic waste (management) rules, 2011 and Electronic waste (management) Amendment rules, 2018
  • Hazardous and Other Wastes (Management and Tran’s boundary Movement) Rules, 2016.
  • The Environment (Protection) Act, 1986
  • The Air (Prevention and Control of Pollution) Act, 1981
  • The Water (Prevention and Control of Pollution) Act, 1974

The most important legislation directly dealing with electronic waste is the Environment (Protection) Act, 1986 in which three penal provisions are given under section 15, 16 and 17. The Environment (Protection) Act, 1986 is an umbrella act and E waste rules are the product of EPA only.

Therefore, penal provisions of EPA directly apply to the E waste rules as well. In fact, section 15 clearly mentions that it provides for the contravention of the provisions of the Act, rules, orders and even directions passed under EPA. Section 15 deals with the liability of individuals, section 16 created the liability of the companies and section 17 creates liabilities on government departments.

The first important penal provision to deal with the electronic waste is section 15, which prescribes for imprisonment for a term which may extent to five years or with fine which may extend to one lakh rupees, or with both. In case of failure, additional fine can be imposed up to five thousand rupees.

Other legislations dealing with E-wastes indirectly are the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974. The Air Act consists of five penal provisions which are section 37, 38, 39, 40 and 41 and along with these provisions section 21, 22 and 31A are of immense importance.

Section 37, 38 and 39 deals with individual liability and seeks to punish a person who fails to comply with the provisions of section 21 and 22 of the Act and directions issued under section 31A of the Act. Section 40 is meant to create liability on the part of the companies and section 41 is meant to create liability of the government departments.

Similarly, the Water Act has seven penal provisions and they are section 41, 42, 43, 44, 45 A, 47 and 48 and along with these provisions, section 20(2), 20 (3), 24, 26, 32(1)(c), 33(2) and 33 A are important too as they are made the basis of several offences under the Act. These provisions have an implied application as improper dismantling and recycling of the electronic wastes result in the contamination and pollution of the Air as well as Water.

MISHAB Section 37 of the Air Act prescribes for an imprisonment for a term not less than one year and six months but which may extend to six years and with fine, and an additional fine which may extend to five thousand rupees in case of failure AND the maximum punishment prescribed is two to seven years of imprisonment and fine, here in comparison to EPA a minimum amount of punishment has been prescribed.

On the other hand, the situation is much worse with section 41 of the Water Act as it prescribes for even lesser degree of punishment and penalty which says imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees only. Section 37 of the Air Act, 1981 and section 41 of Water Act, 1974 are the most important penal provisions and are based on the same footing as the provision relating to penalty has been provided in section 15 of the Environment (Protection) Act, 1986.

Penal Provisions in IPC dealing with E-waste
IPC has various provisions dealing with offences related to pollution of environment and some of these provisions can be applied to pollution by electronic wastes also. For instance, sections 268, 269, 270, 277, 278, 284 and 290 deals with offences relating to public health and safety and are applicable to E-wastes also to an extent.

Public Nuisance has been defined in section 268 as:
A person is guilty of a public nuisance who does any act or is guilty of illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right. Public nuisance covers all types of pollutions such as pollution of land, water, air, noise pollution etc. This provision could very well be applied to the pollution produced by open burning and dumping of electronic waste and exposure of electronic waste to toxic solders and acid baths.

Water pollution, section 277 provides that: whoever voluntarily corrupt or fouls the water of any public spring or reservoir so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with simple or rigorous imprisonment for a term extending to three months or fine of five hundred rupees or with both.[11]

Section 269 of I.P.C. The section says that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. There are similar other sections as well which are applicable to electronic waste.[12]

Unlike environmental laws mentioned above these provisions state the element of mens rea in a very clear and concise manner. Also, all these provisions are cognizable which gives power to the police officers to take an action voluntarily. It authorizes individuals also to file an FIR in case of violation of any of the provision.

Yet, the number of complaints regarding environmental issue filed under these provisions is very low like in environmental laws this essentially indicates that environmental matters aren’t taken as seriously as other offences are. Reasons behind this low rate of complaints are unawareness about the law and impact on environment due to the weak side of these provisions is that the penalty specified for the above cited infringements are too inadequate considering to contemporary day enormous problem of environment pollution.

Are Indian Laws Effective In Curbing E-Waste?

When we look at sections that deal with E-waste, one would find various ambiguities within these provisions. Firstly the penalty and punishment provided in section 15 of EPA, 37 of the Air Act and 41 of the Water Act provides for is neither stringent nor strict. Rather the penalty seems to be very lenient one looking to present day gigantic problem of environment pollution. the proportionality of the penalization in case of violation of this law should be subjective in nature. It should be decided on a case to case basis keeping in background the degrading impact that these informal recycling activities have on the environment[13].

This is also not in consonance with the “Polluter Pays Principle” of International Environmental Law, which states that the polluter should pay in proportion to the damage caused to the environment.[14] The degree of discretion given in all the penal provisions dealing with environmental degradation is also one of loopholes that can be easily identified.

As the language of section 15 of EPA only suggests that the imprisonment is extendable to five years or with fine which may extend to one lakh rupees, is extremely discretionary. Section 16 and 17 of EPA also shows higher degree of discretions is in hands of judges as the text of the legislation says that the offenders should be punished accordingly[15]. In all the penal provisions of EPA and Water Act no minimum amount of punishment has been prescribed.

In Air Act minimum amount of punishment has been prescribed but it is very less and rarely awarded. Secondly, the terminologies used in the statutes are not clear in establishing the culpability of a person as the penal provisions lack clarity in the determination of mens rea which is important for courts for punishing a person. For instance, provisions of EPA nowhere use clear terminology to imply the degree of mens rea attached to a particular offence. Section 15 uses the term “whoever fails to comply” only, which nowhere includes the terms like intention/knowledge/negligence to indicate the degree of mens rea. Further, section 16 (1) again isn’t clear with mens rea part and seems more like a strict liability offence than a criminal conduct on a plain reading.

But the provision brings back the element of mens rea through the words without his knowledge. Furthermore, section 17 again lacks clarity in the determination of mens rea. Thirdly, the legislations prescribe no minimum amount of punishment and use common phrase “shall be liable to be proceeded against and punished accordingly”.

This leaves a place for ambiguous interpretation as to decide whether an offence is cognizable or non-cognizable. Fourthly The individual victims of pollution and health hazards produced by mishandling of electronic waste cannot file an FIR against the accused persons. Therefore, cognizance of offence can only be taken by the central government or any authority or officer authorized in this behalf by that Government.

In a case when an individual has to file a complaint, he has to give a notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized. This makes the complaint mechanism complex and often delayed due to lack of motivation among the concerned authorities.

Fifthly, the pollution control boards which deal with air and water pollution were created only in the 1970s. They do not have execution officers, to address grievances and have no policing roles. They just issue permits. In most cases, the PCB’s just issue a show-cause notice to the entities concerned, and do not register cases with the magistrate. This is why the data does not represent the real extent of such crimes[16].

Analysis of the rules dealing with E-wastes, few loopholes can be identified. To start with, E-waste rules talks about only manufacturers, producers, collection centers, dealers, refurbishes, recyclers, dismantlers and consumers. Further, it provides for the mechanism of the collection and channelization of E-wastes through these stakeholders and tries to enforce a duty upon them to recycle the waste in an environmentally sound manner.

But at the same time, the rules miserably defines the term “environmentally sound manner”.[17] Moreover, the rules don’t blatantly address the issue of recycling and dismantling done by the informal sector which is recycling 90 percent of the electronic wastes. Further, the rules put forth a mandate of seeking an authorization from the concerned State Pollution Control Board for all the facilities to work and about extended producer’s responsibility. [18]

Therefore, technically speaking these rules seem to cover only the formal sector working for recycling of electronic waste. Though, in reality, formal sector doesn’t really exist. The informal sector which actually exists and is doing majorly all the work related to the recycling and dismantling of electronic wastes is being ignored here.

There are no provisions delegating a duty upon the State authorities to provide for proper infrastructures as well as awareness and skill trainings to these informal sectors. Moreover, no penal provision or penalty could be imposed on these unofficial and informal workers as they have been ignored very conveniently[19] the pollution control laws are effective but still inconsistent in certain ways the major drawback of the E-waste legislations are in the part of implementation which is inconsistent.

Nagrik Upbhogta Margdarshak Manch & Others vs. State of Madhya Pradesh & Others
The National Green Tribunal (NGT) has ordered all producers and manufacturers of electrical and electronic equipment (EEE) in three states MP, Chhattisgarh and Rajasthan for setting up collection centers and system of taking back discarded electronic goods. The panel asked for setting aside 10% of advertising spend for awareness among consumers about proper management and handling of e-waste in three states.

The bench called for strict implementation of extended producer's responsibility under e-waste Rules, 2011 whereby producers and manufactures will be responsible for managing equipment after end of life once consumer discards products and the tribunal also instructed the Manufactures to provide contact details of authorized collection centre to consumers and create awareness through publication, advertisement, posters and other means of communication, about management of e-waste.

Besides, producers have to get registered and obtain authorization from State Pollution Control Boards. None of three states have started implementing the e-waste rules of 2011 and neither required number of collection centres, dismantlers and recycling centres have been authorized so far to take care of huge quantity of E-waste that is being generated.[20]

Conclusion
Electronic waste has become a huge problem for the world as we continue to grow the technology and become their slaves. If an instant action is not taken right away, it will continue to grow and will become a much bigger problem for the planet. Also, it has a massive bearing on environment and human life if not handled in an environmentally sound manner. There has to be sufficient rights for citizens to take legal recourse for damages caused to their health, environment and property.

Therefore, it has become the necessity of the time to manage the electronic waste in an organized and safe manner with sustainable recycling technologies. There is a need for stringent penal provisions and robust monitoring mechanisms to deal and match up with electronic waste of present times. there is a need to adopt effective strategy to encourage re-use, refurbishing or recycling of e-waste in specialized facilities to prevent environmental contamination and human health risks.

The setback that we are facing today is the zero enforcement or implementation of existing regulatory framework. As it could be concluded after the detailed analysis of this research paper, that we have enough laws to deal with electronic waste be it Environment Acts (EPA, Water Act and Air Act) or IPC. Only problem is that they have not been implemented well.

If an individual cannot file a complaint directly under any of the Environment Act, one can take an action under IPC. But it seems that even that has not been used properly which is quite apparent from the case laws filed under these provisions so far. Second, low level of awareness among individuals as well as officials. Society and officials should be informed about the importance of the environment and impact of electronic waste on environment.

Need of the hour is to imbibe in minds of the people the spirit of service and harmony with environment so that the errors of the past are not repeated. Thirdly, inadequate work-related safety for those who are involved in these processes which aggravates e-waste management. Fourth, central and state pollution control boards must be strengthened in terms of powers over all the environment related matter. There must be establishment of manpower and expertise is very well required.

End-Notes:
  1. Ecoideaz, "E-waste Recycling in India – Managing a Growing Crisis", https://www.ecoideaz.com/expert-corner/managing-the-e-waste-crisis-in-india
  2. V. Ranganathan, “Health hazards caused by unorganized e-waste disposal”(July,2018), https://yourstory.com/2018/06/unorganised-e-waste-disposal-dangers/
  3. M. Khurrum S.Bhutta, Adnan Omar and Xiaozhe Yang, "Electronic Waste: A Growing Concern in Today’s Environment"(april 2011),http://downloads.hindawi.com/archive/2011/474230.pdf
  4. Umesh Kumar,Dr. D. N. Singh, "E – Waste Management through Regulations", http://www.ijeijournal.com/papers/v3i2/B0320614.pdf
  5. G. Gaidajis, K. Angelakoglou and D. Aktsoglou,"E-waste: Environmental Problems and Current Management"(October,2010), https://www.researchgate.net/publication/49607064_E-waste_Environmental_Problems_and_Current_Management
  6. Shagun, Ashwani Kush, and Anupam Arora, " Proposed Solution of e-Waste Management"(International Journal of Future Computer and Communication, Vol. 2, No. 5, October 2013), http://www.ijfcc.org/papers/212-S060.pdf
  7. Dr.T.K.Bandyopadhyay,Gargi Rajvanshi,Ishan Kanungo, "ELECTRONIC WASTE MANAGEMENT IN INDIA: ISSUES AND CONCERNS",International Journal Of Law And Legal Jurisprudence,http://ijlljs.in/electronic-waste-management-in-india-issues-and-concerns/
  8. International Waste Management and Landfill Symposium, Italy (October 2007),http://www.swlf.ait.ac.th/UpdData/International/NRIs/Electronic%20waste%20management%20in%20India.pdf
  9. Dr. Mathias Schluep,World Resources Forum, Empa Building, Lerchenfeldstrasse 5, CH-9014 St.Gallen, Switzerland, "Case study e-waste management"(july,2014),https://www.global-chemicals-waste-platform.net/fileadmin/files/doc/casestudy_EMPA.pdf
  10. (1996) 2 SCC 594 at 595
  11. The Indian Penal Code Act, 1860, 42nd report, Sec 277 (India)
  12. The Indian Penal Code Act, 1860, 42nd report, Sec 269.
  13. Centre drafts rules for e-waste recycling’, , 29 April, 2010.
  14. Daniel Mmereki, Baizhan Li, Andrew Baldwin and Liu Hong, "The Generation, Composition, Collection, Treatment and Disposal System, and Impact of E-Waste",https://www.intechopen.com/books/e-waste-in-transition-from-pollution-to-resource/the-generation-composition-collection-treatment-and-disposal-system-and-impact-of-e-waste
  15. Toxic Link, "E-Waste IN INDIA-System failure imminent" – take action NOW!, http://www.toxicslink.org/docs/06040_repsumry.pdf
  16. Radha Venkatesan, ‘Is India a global trash can? , The Times of India, 24 April, 2010.
  17. Vaibhav Gaikwadby Vaibhav Gaikwad, "Improving E-Waste Management in India"(Jan,2019), https://www.aii.unimelb.edu.au/publications/very-short-policy-brief/improving-e-waste-management-in-india/
  18. Research Unit (Larrdis),Rajya Sabha Secretariat,New Delhie "Waste In India"(june,2011), https://rajyasabha.nic.in/rsnew/publication_electronic/E-Waste_in_india.pdf
  19. Samar Lahiry, "Recycling of e-waste in India and its potential"(April 2019), https://www.downtoearth.org.in/blog/waste/recycling-of-e-waste-in-india-and-its-potential-64034
  20. MANU/GT/0017/2015


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