Case: Dr. Ashok Vs. Union Of India

On the basis of a letter by one Dr. Ashok addressed to the Chief Justice of India indicating the rein 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 Environment and Forest, through the Secretary, Ministry of Agriculture, through Secretary, Ministry of Industry &Chemicals as well as 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, s ale 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 contaminataion are the general results of the widespread use of the chemical 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.s were filed on behalf of Secretary, pesticides 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 b y the Deputy Director General of Health Services giving the available information on the listed chemicals as to the carsinogenicity status on the basis of research carried out by the Indian Council of Chemical 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 whole issue be examined in totality before arriving at a conclusion. When the matter was heard on 24th September, 1996 this Court observed that the re has been a time lag between the filing of the affidavits and the date of hearing of the petition and the re is no material on record to indicate as to whether any further stops have been taken with regard to the control of use of the se 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 it 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 be 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 the rein 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 Annexure1 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 t hat 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 Govern ment 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 manufacture, 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 ef fect from 1st April, 1997, being of the opinion that the manufacture and use of Benzene 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 3 1st March, 1996 an totally banned by 31st March, 1997. The Notification also indicated that the Certificate of Registration in respect of Benzene Haxachloride shall be deemed to have lapsed in respect of those registration in respect of Benzene 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 Petrochemicals also filed an affidavit. When the case was taken up for hearing on 21st November, 1996 and the se 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 the re 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 canceling 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 manufactures, 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 alongwith main Writ Petition.Chemicals, besides food, air and water, have always been part of mans environment in some mea sure. Even before the earliest civilizations or agriculture, the lightning flash caused oxygen and nitrogen of the air to combine, producing oxides of nitrogen and the said nitrogen dioxide eventually combined with water and oxygen to form nit rates that significantly enriched the soil. Volcanos contributed sulphur dioxide and particulates to the air just as fossil fuel burning power plants do today. But the total contribution of the se 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 is 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 the se chemical 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, the re began measure for the control of the release of the se materials and the prevention of occupational diseases. The concentrations of many of the se materials in the atmosphere were quit 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 Unite d states 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 Governmental Industrial Hygienists every year compiled 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 the re was no legislation and it is only in 1960s the Clean Air Acts were passed in the United states. The re has been constant research on the use of chemicals and pesticides and its effect on the human health in most of the advance 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 datas 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 organisms.An insect, a field mouse, the spore of a fungus. or a tinyg worm is more difficult to deal with. Since the se 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 microorganisms are pests. Most of the m 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 the se natural cycles. Human population is now so large that tremendous quantities of food are needed. One way to increase crop yields is to reduce competition from insects. Scientists studying a cabbage field in United States found 177 different species of insects of which only 5 species were significant pests. The agricultural system is subject to the normal checks and balances of a natural ecosystem. If left alone, pest species are usually dept under control by their enemies. According to an estimate insects at 10 per cent of the food crops in the United states in 1891 and at that time very few pesticides were being 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 quest ion, 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. The re 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 mid1940s many thousands of people have fallen sick or have died from severe pesticide poisoning every year. At present more than half of the se are children who are exposed to the toxic chemical through carelessness in packing or storage. Most of the Others are workers who handle the se materials in the factory or on farms. Even workers working in the factory where chemicals are manufactured bring the pesticide dust home on their clothe s and they poison the family as well. In July 1975 the Allied chemical Company paid millions in damage suits and the plant was shut down. No amount of compensation paid in cash could make the people healthy again. People can avoid exposure to large doses of insecticides but it is impossible to avoid exposure to contaminants in food, in the air an d in drinking water.Scientists in their anxiety to increase the production capacity of the soil and to prevent the food particles from various pests 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 basis of continued research in the field several Other advance 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 banned in Other countries particularly when its deleterious effect on the human health is alarming, One thing is absolutely clear that in this country the re has not been much study and research on the harmful effect of several such chemicals and pesticides.

Reasoning: An examination of the aforesaid provisions of the Act indicates that before registering a particular insecticide the Registration Committee is duty bound to hold such enquiry as it deems fit for satisfying itself that the insecticide to which the application relate s is safe to human beings and animals.Coming now to the core question namely whether under Section 27 of the Act the central Government can cancel the Certificate of Registration in respect of an insecticide.It appears to us that under subsection (1) of section 27 when the Central Government or the State Government is of the opinion that the use of any insecticide specified ine (iii) of clause (e) of section 3 or any specific batch there of is likely to involve risk to human beings or animals and it is necessary to take immediate action the n on recording reasons in writing the sale. distribution or use of the insecticide or batch can be prohibited in such area. to such extent not exceeding 60 days as may be specified in the notification pending investigation into the matter. In Other words, In respect o an insecticide within the meaning of section 3(e) ((iii) i.e. a preparation or formulation containing anyone or more of such substances specified in the schedule. the appropriate Government can immediately by issue of notification prohibit the sale. distribution or use of the same pending investigation. Under the proviso to subsection (1) of section 27. if the investigation is not completed within the period of 60 days the n the prohibition in question could be extended for such further period not exceeding 30 days in the aggregate. Undersubsection(2) if the Central Government on the basis of its own investigation or on receipt of the report from the state Government and after consultation with the Registration Committee is satisfied that the use of the said insecticide or batch is or is not likely to cause any such risk the n it may pass such order as it deems fit depending upon the circumstances of the case. either refusing to register the insecticide or cancel the Certificate of Registration. If already granted. The use of the word said insecticide insubsection(2) obviously refers t o the insecticide in question which was the subject matter of consideration undersubsection(1) and in respect of which pending further investigation into the matter the Central Government has already issued a prohibition for sale, distribution or use of the insecticide in question. Therefore , the power of cancellation of Certificate of Registration conferred upon the Central Government undersubsection(2) of Section 27 can be exercised only in respect of any insecticide specified ine (iii) of clause (e) of section 3 i.e. a preparation or formulation of one or more of the substances specified in the schedule but the said power cannot be exercised in respect of an insecticide which is specified in the schedule itself by the Parliament. We are unable to accept the agreements advanced by the learned Additional Solicitor General thatsubsection(2) of section 27 is not restricted to an insecticide in respect of which the Central Government has already issued a notification prohibiting the sale. distribution or use pending investigation into the matter. The Scheme ofsubsection(1) andsubsection(2) of section 27 is that in respect of a formulation which is also an insecticide within the meaning of section 3 (e) (iii) the Central Government for reasons to be recorded in writing and pending investigation into the matter can immediately prohibit sale. distribution or use and after further investigation can cancel the Certificate of Registration in respect the reof undersubsection(2) of Section 27. That being the position in exercise of such power under subsection (2) of section 27 a certificate of Registration in respect of an insecticide undersubsection3(e) (i) cannot be cancelled undersubsection(2) of section 27. This is also in consonance with the logic that an insecticide which is the formulation of any one or more of the substances specified in the schedule and is consumer oriented power of cancellation of registration certainly has been conferred upon the central Government but in respect of an insecticide which does not come to a consumer and is a substance specified in the schedule itself and therefore an insecticide under section 3(e) (i), the power has not been conferred upon the Central Government since the specified substance in the schedule has been specified by the Parliament itself. In view of the aforesaid conclusion of ours we would h old that those of the Certificates of Registration granted to the petitioner in respect of any formulations namely BHC 10% WP, the order of the Central Government cancelling Certificate of Registration is well within the jurisdiction and the re is no legal infirmity in the same. But in respect of Benzene Hexachloride which is one of the substances specified in the schedule and as such is an insecticide within the meaning of section 3 (e)(i) the re is no power with the Central Government under subsection (2) of section 27 to cancel the Certificate of Registration.So far as the contention of Mr. Vaidyanathan, the learned senior counsel appearing for the petitioners in the transferred case that consultation with the Registration committee is an for exercise of power undersubsection(2) and such consultation being not the re. the issuance of notification is bad we are of the considered opinion that undoubtedly before the power undersubsection(2) of section 27 can be exercised the central Government is duty bound to have consultation with the Registration Committee. But in the case in hand having examined thes filed on behalf of the different Ministries of the Central Government that the re has been due and substantial consultation with the Registration Committee which is apparent in the notification of December 1994 itself. and since the n the re has been further study into the matter and committees of experts have been constituted who have gone into the matter and on the basis of the reports submitted by such expert committee ultimately the Central Government has taken the final decision. It is not possible for us to hold that the re has been no consultation with the Registration Committee before exercising of power under subsection (2) of section 27. Contention of Mr. Vaidyanathan. the learned senior counsel on this score. There for, must be rejected. Before we part with this case. and having examined the different provisions of the Insecticides Act. 1968 we find that once a substance is specified in the schedule as contemplated under Section 3(e)(i) the n the re is no power for cancelling the registration certificate issued in respect of the same substance even if on scientific study it appears that the substance in question is grossly detrimental to the human health. This is a lacuna in the legislation itself. and therefore , steps should be taken for appropriate amendment to the legislation.