National Green Tribunal
Mr. Nikhil Vidyadhar Joglekar vs Ministry Of Environment Forest And ... on 22 November, 2023
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
ORIGINAL APPLICATION NO. 56 OF 2018 (WZ)
01. Mr. Nikhil Vidyadhar Joglekar,
Age : 23 years, Occu. Law Student,
R/o B2-5, Silver Wing, CHS, Dnyaneshwar Nagar,
Near Jijamata Chowk, Talegaon Dabhade,
Taluka Maval, District Pune - 410 506
02. Mr. Bodhi Sham Ramteke,
Age : 20 years, Occu. Law Student,
R/at Flat No.22, D-2, Rahulnagar Society,
Near Kokan Express Hotel,
Kothrud - 411 038
03. Mr. Vaishnav Gajanan Ingole,
Age : 21 years, Occu. Law Student,
R/at ILS Law College Boys Hostel,
Law College Road, Pune - 411 004
04. Mr. Vikrant Anil Khare,
Age : 22 years, occu. Law Student,
R/at Room No.74, ILS Law College Boys Hostel,
Law College Road, Pune - 411 004
05. Mr. Omkar Ajit Keni,
Age : 26 years, Occu. Law Student,
At post 163, Dhamapur, Malvan,
District Sindhudurg - 416 605
06. Mr. Shubham Deepak Biche,
Age : 20 years, Occu. Law Student,
R/at 43/B, Tukaram Nagar, Talegaon Dabhade,
Pune - 410 506 .... Applicants
Versus
01. Ministry of Environment, Forest and
Climate Change (MoEF&CC),
Paryavaran Bhavan, C.G.O. Complex,
Lodhi Road, New Delhi - 110 003
02. Maharashtra Pollution Control Board,
Through its Member Secretary,
Kalptaru Point, Sion Circle, Sion (East),
Mumbai - 400 022
03. The Director, Health Department,
Government of Maharashtra,
Argogya Bhavan, 1st Floor,
St. George's Hospital Compound,
Near C.S.T. Station, Mumbai - 400 001
[NPJ] Page 1 of 19
04. The District Collector, Pune,
Collectorate Compound, Pune - 411 001
05. Department of Urban Development,
Through its Principal Secretary,
Room No.423 (Main),
Nagar Vikas Vibhag, Mantralaya,
Mumbai - 400 032
06. Central Pollution Control Board,
Through its Chairman,
Parivesh Bhawan, East Arjun Nagar,
Delhi - 110 032
07. State Legal Advisory Committee,
Through its Chairman and Members,
State Legal Advisory Committee,
Office of the Hon'ble Principal Secretary,
Urban Development Department,
4th Floor, Annexe Building, Mantralaya,
Mumbai - 400 032
08. Talegaon Nagar Parishad,
Through its Chief Executive Officer,
Near Abhydaya Bank,
Talegaon Dabhade, Pune - 410 506
09. J.K. Ansell Ltd.,
Through its Directors,
Sanjay Bahl and Vipin Agarwal,
Plot G-35 and 36,
MIDC Waluj, Taluka Gangapur,
District Aurangabad - 431 136
10. Mankind Pharms Ltd.,
Through its Chairman Ramesh Juneja,
208, Okhla Industrial Estate,
Phase III, New Delhi - 110 020
11. Reckitt Benckiser India Pvt. Ltd.,
Through its Regional Director Gaurav Jain,
6th and 7th Floor, Tower C,
DLF Cyber Park, 405 B,
Udyog Vihar Phase III,
Sector 20, Gurgaon - 122 016, Haryana
12. HLL Lifecare Ltd.,
Through its Chairman and MD K.B. George,
Mahilamandiram Road,
Poojappura Thiruvananthapuram - 695 012, Kerala
13. TTK Healthcare Ltd.,
Through its CEO Mr. TT Raghunathan,
No.6, Cathedral Road, Chennai - 600 086
14. HLL Lifecare Ltd.,
Mahilamandiram Road,
Poojappura Thiruvananthapuram,
Kerala India - 695 012 ....Respondents
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APPEARANCE :
Applicants : Ms. Shreya Awale, Advocate holding for
Mr. Asim Sarode, Advocate
Respondents : Mr. Deepak M. Gupte, Advocate for R-1/MoEF&CC
Ms. Manasi Joshi, Advocate for R-2/MPCB
Mr. Aniruddha S. Kulkarni, Advocate for R-6/CPCB
Mr. Mohit Sharma, Advocate for R-10 and R-11
Mr. Karan Parmar, Advocate for R-13
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
================================================================
Reserved on : 16.10.2023
Pronounced on : 22.11.2023
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JUDGMENT
01. The applicants are claiming to be the students of various Law Colleges, who have formed an Identity called "Lawyers for Earth Justice" and have submitted that they have come across road sweepers burning garbage along the roadside, which has spread lot of black smoke. These sweepers were found not wearing gloves and were made to segregate garbage which included condoms which was disgusting for them. Because of this, instead of collecting them, they used to burn it, which led to pollution spreading in the area.
02. It is further submitted by the applicants that in India like in other countries, condoms are thrown into trash or burnt, which leads to environmental degradation, as these are made of latex which comprises of sap of rubber trees. But latex condoms are not composed of 100% latex, which is making them not completely biodegradable and further lubricant and spermicidal coating used therein alters decomposition potential. Even non-latex condoms are available in the market which are made of materials like polyurethane and polyisoprene. A variety of raw materials are used in [NPJ] Page 3 of 19 producing polyurethanes, which include monomers, prepolymers, stabilizers which protect the integrity of the polymer and colorants. One of the key reactive materials required to produce polyurethanes are Di-isocyanates.
03. Throwing of these condoms may spread infectious diseases such as leptospirosis, viral hepatitis, typhoid, etc. Flushing of these condoms down toilets also causes clogging of sewers. In recent years, incineration is being promoted in India as safe way for their disposal, yet a close look would indicate that none of the incinerators in India reach the necessary temperature of 800 degree Celsius recommended by the World Health Organization (WHO). Unfortunately, this procedure is also not being followed by the Authorities. The condoms cannot be considered to be plastic waste according to the Plastic Rules, 2011, but the same can be considered as comparable with the bio-medical waste as seen in the Biomedical Waste (Management and Handling) Rules, 1998 ("Rules of 1998", for short) in view of the nature of the waste. Rule 3 sub-clause (46) of the Rules of 1998 defines "Solid Waste", which includes sanitary waste as well. Rule 3 sub- clause (41) defines "sanitary waste" which comprises of condoms as well apart from other sanitary articles. Further it is mentioned that Rule 4 of the Rules of 1998 lays down the duties of the waste generators given in sub-rule (1)(b) of Rule 4 which says that every waste generator shall wrap securely the used sanitary waste like diapers, sanitary pads, condoms etc. in the pouches provided by the manufacturers or brand owners of these products or in a suitable wrapping material as instructed by the local authorities and shall place the same in the bin meant for dry waste or non-bio-degradable waste. Rule 4 sub-clause (2) of the Rules of 1998 provides that no waste generator shall throw, burn or bury the solid waste generated by him on streets, open public spaces outside his premises or in the drain or water- bodies. Rule 17 of the Rules of 1998 lays down that the manufacturers or brand owners of disposable products like condoms, etc. shall provide necessary financial assistance to local authorities for establishment of waste [NPJ] Page 4 of 19 management systems and shall educate the masses for wrapping and disposal of their products. Rule 11 (d) of the Municipal Solid Waste Management Rules, 2016 provides that the Secretary, Urban Development Department in the State shall ensure implementation of provisions of these Rules by all local authorities.
04. According to the applicants, the Solid Waste Management Rules, 2016 ("SWM Rules", for short) are also in conformity with the `extended producer responsibility' (EPR) concept, where the producer will be responsible for managing the end waste of the product and should provide proper disposal method. The responsibility of the respondents is to create awareness about proper disposal of condoms. Unfortunately, the manufacturers are spending huge amounts on marketing and commercial advertisements to boost the sale of their products but they are negligent about the awareness about proper disposal of the same. Recently, the Government of India has created the specific funds called `Corporate Environment Responsibility' (CER) so that there would be participation of the industries in actual environmental works. By using CER funds, the manufacturers can have meaningful collaboration with local authorities like various Municipal Corporations and Councils to create awareness in society at various levels. These funds are said to be two percent of the capital investments.
05. It is further mentioned that condoms are not considered as different and specified solid waste and until this is done, it will not be segregated and will be continued to be mixed with other waste. Therefore, its segregation should be made compulsorily. Further it is mentioned that the concept of waste generator should be expanded to include not only the users but also the manufacturers.
06. This matter was first considered by us on 17.,07.2018 when it was admitted and notices were directed to be issued to the respondents.
07. From the side of respondent No.13 - TTK Healthcare Ltd, preliminary objections by way of an affidavit dated 28.08.2018 have been filed, stating [NPJ] Page 5 of 19 therein that the applicants ought to have made written representation before the respondent for knowing its response on the issue before rushing to this Tribunal, in keeping with the law aid down by this Tribunal in Shivpal Bhagat and Ors. Vs. Union of India, vide order dated 19.07.2018. The applicants have sought directions to be issued against brand names under which the condoms are manufactured and sold by various authorities, which can sue and be sued in their own names as their brands do not fall within the definition of `person' under Section 3 sub-section (42) of the General Clauses Act, 1897. Similarly, the respondents would not be covered under Section 2 (j) of the National Green Tribunal Act, 2010 in the definition of `person'. The SWM Rules are not applicable to the manufacturers or brand owners of the disposable products, such as sanitary napkins, diapers, etc. and similarly not applicable in any manner to the manufacturers or brand owners of condoms. There is no direct or indirect violation of any specific statutory environmental obligation of the answering respondent. Therefore, the question of applying the `precautionary principle' or the `exclusive producer liability' (EPL) does not arise. The applicants are aiming to earn quick money by unnecessarily dragging the answering respondent in frivolous and baseless litigation and praying for Rs.1,00,000/- by way of cost of litigation illegally from each of the respondents.
08. The second affidavit-in-reply dated 21.11.2021 has also been filed by respondent No.13, wherein it is submitted that the answering respondent is the manufactures and distributes the product `natural rubber latex condom' under its brand name "SKORE" in the Indian Market, which consist of natural rubber latex (more than 97%) and a few chemicals and lubricants (which are less than 3% of the total product). This product can be considered as bio-degradable, which are manufactured in line with International Standard (ISO) 4074:2015. The answering respondent has undertaken several social and environmental activities/programmes as a part of its `Corporate Social Responsibility' and `Corporate environment [NPJ] Page 6 of 19 Responsibility', which are enumerated in paragraph No.6(i) to (vi) of the affidavit. The SWM Rules are applicable to the manufacturers or brand owners of the disposable products and sanitary napkins and diapers and not applicable in any manner to the manufacturers or brand owners of condoms. There is no mandatory requirement under the SWM Rules for the manufacturers of the condoms to provide a pouch or wrapper with each packet of the condom for disposal of such condoms. Some of its premier variants of condoms do provide disposal pouches along with the condom. However, such disposal pouches are not being provided with all varieties due to cost constraints. Therefore, in case this Tribunal holds that the manufacturers of condom must provide its customers disposal pouches, there will be increase in the cost of the product, which will be passed on to the end user consumer thereby affecting the public at large.
09. According to the answering respondent, it is the duty of respondent Nos.1 to 8, being instrumentalities of `State' under Article 12 of the Constitution of India, to remedy the said issue as per the Directive Principles of State Policy enshrined in Part-IV of the Constitution as well as the SWM Rules. The allegation of the applicants that the condoms which are produced by the answering respondent are non-biodegradable are baseless, vague and unsubstantiated. It is the duty of respondent Nos.1 to 8 to provide waste pickers with protective gear, gloves, etc and provide them with adequate training to handle waste. The answering respondent does provide instructions on packets of condoms for safe disposal of used condoms, wherein it is specifically mentioned that the used condoms should not be thrown/flushed down the toilet. The condoms cannot be comparable with bio-medical waste under the Bio-Medical Waste (Management and Handling) Rules, 1998. The provisions which have been quoted by the applicants in paragraph Nos. 25(C) and (D) i.e. Rules 4(1)(b) and 4(2) of the SWM Rules and Rule 4 of the SWM Rules are applicable only to "waste generators", as defined in Rule 3(56) and not to the manufacturers or brand owners. [NPJ] Page 7 of 19 Similarly, Rule 17 of the SWM Rules is also not applicable to the answering respondent. The waste generators must dispose off used condoms in a closed dustbin or in any suitable wrapping material as instructed by the local authorities. Therefore, it is the respondent authorities who have failed to ensure proper disposal of the used condoms. The principle of `extended producer responsibility' has been misconstrued by the applicants and accordingly, the answering respondent cannot be held responsible for managing the end waste of the used condoms and cannot be expected to provide a proper disposal method.
10. From the side of respondent No.6 - CPCB, vide their affidavit dated 24.08.2018, it is submitted that as per the SWM Rules of 2016, the local authorities and panchayats are responsible for taking care of the sanitary waste and relevant provisions of Rule 15 of SWM Rules provide as under:
"15(zd) To ensure that the operator of a facility provides personal protection equipment including uniform, fluorescent jacket, hand gloves, raincoats, appropriate foot wear and masks to all workers handling solid waste and the same are used by the workforce;
15(zg) Shall create public awareness through information, education and communication campaign and educate the waste generators on the following namely:
(i) Not to litter;
(iv) Practice segregation of waste into bio-degradable, non-
biodegradable (recyclable and combustible), sanitary waste and domestic hazardous wastes at source;
(vi) Wrap securely used sanitary waste as and when generated in the pouches provided by the brand owners or a suitable wrapping as prescribed by the local body and place the same in the bin meant for non-biogradable waste.
(vii) Storage of segregated waste at source in different bins.
(viii) Handover segregated waste to waste pickers, waste collectors, recyclers or waste collection agencies."
11. Further it is mentioned that the sanitary waste comprises of used diapers, sanitary towels or napkins, tampons, condoms, incontinence sheets and other similar waste, which should be disposed of as per the guidelines [NPJ] Page 8 of 19 prescribed by the answering respondent and made available on its website i.e. the guidelines which are annexed at Annexure-I.
12. According to the answering respondent - CPCB, it has organized an interactive meeting on 02.03.2017 with Urban Local Bodies (ULBs) on implementation of SWM Rules of 2016 and on the eve of "World Environment Day" i.e. 5th June, 2017, it has conducted an interactive meet with State Pollution Control Boards (SPCBs), ULBS, NGOs and Technology Providers on capacity building for implementation of Waste Management Rules. Further, under "Swachh Bharat Mission", the answering respondent, in collaboration with National Productivity Council and MoHUA, Govt. of India, has initiated a project for conducting Nation-wide Capacity Building Programme on implementation of SWM Rules, notified by the MoEF&CC in the year 2016 in 68 cities. The interaction meets with the State Urban Development Department, Local Bodies and State Pollution Control Board/Pollution Committee were held on 23.01.2018. Further it is mentioned that the answering respondent has issued directions on 11.09.2017 under Section 5 of the Environment (Protection) Act, 1986 ("EP Act", for short) to the Secretary- in-charge, State Urban Development Departments of all States/Union Territories for constitution of State Level Advisory Body (SLAB) and convening its six monthly meeting. It has also issued directions on 05.10.2017 under Section 5 of the EP Act to all authorities of 53 Metro cities and 18 State Capitals for implementation of SWM Rules of 2016. It is further mentioned that Rule 17 (3) of the SWM Rules provide as follows:
"(3) Manufacturers or brand owners or marketing companies of sanitary napkins and diapers shall explore the possibility of using all recyclable materials in their products or they shall provide a pouch or wrapper for disposal of each napkin or diapers along with the packet of their sanitary products."
13. From the side of respondent No.1 - MoEF&CC, vide their affidavit dated 17.06.2019, it has submitted the Rule position, which we have already taken care of above.
[NPJ] Page 9 of 19
14. From the side of respondent No.2 - MPCB, an affidavit dated 28.12.2018 has been filed, wherein it is submitted that regarding disposal option of condoms i.e. incineration, the CPCB had sought comments from all the State Pollution Control Boards for allowing sale and operation of mini and modular incinerators for disposal of sanitary towels or napkins, tampons, condoms, incontinence sheets and any other similar waste, on the following points:
"(i) Segregated sanitary waste can be disposed through existing BMW incinerators in country by any authorized waste picker (as per SWM Rules, 2016) on commercial basis provided the facility obtains authorization from concerned SPCB under BMW Rules, 2016.
(ii) As per the mandate, the ULPs should collect sanitary waste separately and send the same for disposal through CBMWTF.
ULBs may also install a stand alone common incinerator for disposal of sanitary waste collected by them.
(iii) The sanitary waste if collected as part of segregated non-recyclable dry waste may become part of RDF or feed for Waste to Energy plants (WtE). This may ensure complete sterilization as well as recovery of energy if any. However, very few municipalities have RDF or WtE plants in the country.
In this regard, the answering respondent, as per option No.(ii) above, has given suggestion to the CPCB that the ULBs shall make the provision for separate collection of sanitary waste and shall handover the same to the existing CBMWTSDF for treatment and disposal till they install their own treatment facility.
15. The answering respondent has issued directions under Section 5 of the EP Act read with SWM Rules to all the Municipal Corporations in the State of Maharashtra vide letter dated 21.02.2018, directing as under:
"(I) Municipal Corporations shall create awareness through information, education and communication campaign and educate the waste generators to practice segregation of waste into biodegradable, non-biodegradable (recyclable and combustible), sanitary waste and domestic hazardous waste at source.[NPJ] Page 10 of 19
(II) Municipal Corporations shall create awareness through information, education and communication campaign and educate the waste generators to wrap securely used sanitary waste as and when generated in the pouches provided by the brand owners or a suitable wrapping as prescribed by the Municipal Corporation and place the same in the bin meant for non-biogradable waste. (III) Municipal Corporations shall ensure that the manufacturers or brand owners shall explore the possibility of using all recyclable material in their products and also ensure that they shall provide a pouch or wrapper for disposal of each napkin or diaper along with the packet of their sanitary products."
The answering respondent has annexed the guidelines issued by the CPCB in this regard, which are issued in May, 2018, at Annexure-C.
16. According to the answering respondent, SWM Rules do not provide any strict provision for disposal of sanitary waste. However, they stipulate that the sanitary waste shall become part of dry waste and should not be mixed with compostable wet waste. As per definition of "Dry Waste" under SWM Rules, it includes waste other than bio-degradable waste and inert street sweepings and includes recyclable and non-recyclable waste, combustible waste and sanitary napkin and diapers etc. Therefore, sanitary waste becomes a part of dry waste and to ensure that it does not mix with compostable wet waste, it is obligatory on the part of every local body, operator of the facility or any other agency responsible for processing and disposal of solid waste to practice segregation of waste into biodegradable, non-biodegradable, sanitary waste and domestic hazardous waste at source.
17. The second affidavit filed by respondent No.2 - MPCB is dated 18.11.2021, wherein nothing new has been stated and the same facts have been reiterated.
18. From the side of respondent No.11 - Reckitt Benckiser India Pvt. Ltd., affidavit dated 08.11.2022 has been filed, wherein it is submitted that the Central Zonal Bench of this Tribunal at Bhopal, in Original Application No.30 of 2015 (PC Sharma vs. M/s Proctor and Gamble Home Products [NPJ] Page 11 of 19 Ltd. and others), arising out of identical issues, has, vide judgment dated 03.08.2017, held as under:
"26. So far as the disposal of sanitary items is concerned, since the sanitary waste has been classed as Municipal Solid Waste by the CPCB/MoEF the Solid Waste Management Rules 2016 shall be applicable to the Respondent No.1. Therefore, we also direct that the Respondent No.1 shall comply with the Solid Waste Management Rules, 2016 by providing a disposal pouch or wrapper along with the packaged sanitary products for safe and proper disposal of used sanitary napkins and diapers. It shall also be obligatory for the Respondent No.1 to undertake public awareness measures for disposal of used napkins and diapers in prescribed manner."
Against the above judgment, an appeal has been preferred before the Hon'ble Supreme Court being Civil Appeal Nos.835-836 of 2020 (Proctor and Gamble Home Product Limited vs. PC Sharma and others), wherein the Hon'ble Supreme Court has stayed the judgment of this Tribunal vide order dated 27.01.2020 and the matter is still under consideration before it.
19. It is submitted by the answering respondent that the condoms fall within the definition of `drugs' as defined in Section 3(b)(iv) of the Drugs and Cosmetics Act, 1940 and condoms also fall within the definition of medical devise as defined in Rule 3(zb) of the Medical Devices Rules, 2017. The answering respondent is not a waste generator as per the SWM Rules. Therefore, those cannot be held to be applicable against them. The Pune Municipal Corporation (PMC) has issued `Public Health and Sanitation Bye Laws 2017' under the Maharashtra Municipal Corporations Act, 1949 and the Environment (Protection) Act, 1986 for regulating all matters and things connected with segregation, collection, removal, recycling, transportation, processing and disposal of solid waste generated or brought within the jurisdiction of PMC in accordance with the SWM Rules. As per Section 13 under Chapter VII of the Pune Byelaws dealing with the Storage of Solid Waste, it is submitted that the sanitary waste has to be wrapped securely as and when generated in a newspaper or suitable wrapping material or [NPJ] Page 12 of 19 bags/pouches as instructed by the Corporation or provided by manufacturers or brand owners of such products to prevent any possible leakage or spillage, marked distinctively (e.g. with a red `X' mark, or with standardized labels for diapers/napkins) and placed in the receptacle meant for dry waste in such manner as may be notified by the Municipal Commissioner. A copy of the said Bye-Laws is annexed as Annexure-R- 11/6. According to the answering respondent, these Rules make it clear that there is no obligation to provide a pouch or wrapper for disposal of used condoms.
20. The answering respondent has also stated the same which has been stated by respondent No.13 that Rule 17 of the SWM Rules do not apply to regulate the disposal of condoms as they pertain to pre-sanitary waste.
21. With respect to providing necessary financial assistance to the local authorities for establishment of waste management system, it is submitted by the answering respondent that the manufacturers/brand owners of disposable products such as tin, glass, plastic packaging, etc. shall provide financial assistance to the local authorities for establishment of waste management system and that it is the responsibility of the local authorities to request for the same. There is no guideline from the side of Central or the State Government for financial assistance.
22. The answering respondent has already put in place a system to collect the packaging waste generated by it under Plastic Waste Management Rules, but Rule 17(2) of the SWM Rules does not include the condoms. The answering respondent, through its various advertisements, website, social campaigns, is educating the masses at large regarding safe wrapping and disposal of sanitary waste. As regards the condoms, on the packets of condoms, for safe disposal of used condoms, it is specifically mentioned on the packets that the used condoms should be wrapped in a tissue and be placed in a bin and should not be flushed down the toilet. Further it is [NPJ] Page 13 of 19 mentioned that providing a separate plastic pouch with the product for wrapping the used condoms is likely to cause further waste generation.
23. The other averments, which are made in this affidavit by the answering respondent, are common to the averments made by respondent No.13.
24. From the side of respondent No.10 - Mankind Pharma Ltd., an affidavit dated 09.11.2022 has been filed wherein the same averments are made which have been stated by respondent No.11 in its affidavit.
25. From the side of respondent No. 8 - Talegaon Nagar Parishad, reply- affidavit dated 08.05.2023 has been filed, wherein it is submitted that in the year 2018, the answering respondent entered into a service contract with service provider for providing service for collection of garbage and entered into an agreement with it to the effect that the contractor shall provide masks, gloves and dress to the workers and the supervisors of the answering respondent used to keep vigil over these contractors. For the disposal of medical waste, the answering respondent has installed incinerator. There is no specific provision for disposal of condoms in SWM Rules. There is no responsibility of the answering respondent to take separate care for their disposal. It is denied by the answering respondent that the collection of used condoms were ever burnt on the road or road side and the same are being disposed of in incinerator used for medical waste.
26. From the side of the applicants, rejoinder dated 09.06.2023 has been filed, wherein the earlier stand taken by the applicants, which has already been mentioned by us above, has been reiterated and nothing new has been found stated in this rejoinder.
27. We have heard the arguments of the learned counsel for the applicants, learned counsel for respondent No.1 - MoEF&CC, No.2 - MPCB, No.6 - CPCB, learned counsel for respondent Nos.10, 11 and 13 and perused the documents/record.
28. The issues which arise for our consideration in this Original Application are as follows:
[NPJ] Page 14 of 19
(i) Whether the used condoms, which fall in the category of `sanitary waste' as per Rule 4 of the Solid Wastes (Management and Handling) Rules, 2016, are being disposed of inappropriately on the road or along road side and other public places, which lead to different kinds of ailments and other health hazardous, particularly to the waste pickers who are asked to segregate them in view of the fact that they are not being provided any gears like gloves, nose masks, sanitizer and other similar items, which fall in the category of protective gear ?
(ii) Whether the manufacturers of the condoms are duty-bound to provide pouches along with the packets of condoms with a clear instruction/marking thereon that if they are used, these should be disposed of after putting them in pouches which would be provided by them ?
(iii) Whether the disposal of used condoms is being done in accordance with the Solid Wastes (Management and Handling) Rules, 2016 and whether they need to be incinerated post their use in order to ensure that there is no health hazard from their disposal?
Findings :
Issue No. (i) :
29. As far as the first issue is concerned i.e. whether the used condoms, which fall in the category of `sanitary waste' as per Rule 4 of the Solid Wastes (Management and Handling) Rules, 2016, are being disposed of inappropriately on the road or along road side and other public places, which lead to different kinds of ailments and other health hazardous, particularly to the waste pickers who are asked to segregate them in view of the fact that they are not being provided any gears like gloves, nose masks, sanitizer and other similar items, which fall in the category of protective gear, we find from the record that the applicants have not cited specific example other than that of Talegaon of which they have shown the photograph wherein large number of used condoms are found lying. The [NPJ] Page 15 of 19 respondent No.8 - Talegaon Municipal Council has denied that it allowed the throwing of the condoms on the road side, it is stated in paragraph No.3 of their affidavit that the used condoms are being disposed of by using incineration, which is meant for disposal of bio-medical waste. We do not find any rejoinder against the said affidavit from the side of the applicants. Therefore, we may state here that there might be some solitary cases where this might have happened, but there does not appear to be general trend that used condoms are being thrown by the side of the road. We, however, can take cognizance of the fact that the used condoms need to be disposed of following the provisions of SWM Rules, 2016.
30. We find from the record that the CPCB has already issued guidelines in May, 2018 wherein at consumer level, following role has been assigned:
"(a) The consumer shall wrap the sanitary waste using self-wrapping straps or keep the sanitary waste in leak-proof pouches provided by producer and dispose the same along with dry waste or keep the waste in separate bin provided at the time of door to door collection by local agency. In case separate bin is not provided by authorized waste picker, the wrapped/pouched sanitary waste should be placed in dry-waste bin for collection by authorized waste picker (during door to door collection).
(b) In case Producer does not provide wrapper or pouch, the used sanitary waste should be wrapped in old newspaper and placed in dry-waste bin for collection by authorized waste picker (during door to door collection)."
31. It is clear from the above guidelines that all the consumers are required to wrap the sanitary waste (herein `condoms') in leak-proof pouches provided by the producer and dispose of the same along with dry waste or keep the waste in separate bin provided at the time of door to door collection by the local agency. If the separate bin is not provided by the authorized waste pickers, the wrappers/pouches should be placed in dry- waste bin by authorized waste picker. It is further made clear that if the producer does not provide wrapper or pouch for the used sanitary waste, such kind of waste should be wrapped in old newspaper and placed in dry- [NPJ] Page 16 of 19 waste bin. The responsibility of performing this act, observing compliance of above guidelines, lies on the shoulder of the waste generator.
32. From the affidavit of respondent No.2 - MPCB, we find that respondent No.2 has issued direction under Section 5 of the EP Act read with SWM Rules to all the Municipal Corporations in the State of Maharashtra, vide letter dated 20.10.2021 to make following compliances:
"i. Municipal Corporations shall establish a Waste Deposition Centre for sanitary waste and dispose the sanitary waste as per the Guidelines for Management of Sanitary Waste-May, 2018 published by CPCB.
ii. Municipal Corporations shall create public awareness through information, education and communication campaign and educate the waste generators to practice segregation of waste into bio- degradable (recyclable and combustible), sanitary waste and domestic hazardous waste at source.
iii. Municipal Corporations shall create public awareness through information, education and communication campaign and educate the waste generators to wrap securely used sanitary waste as and when generated in the pouches provided by the brand owners or a suitable wrapping as prescribed by the Municipal Corporation and place the same in the bin meant for non-biodegradable waste. iv. Municipal Corporation shall ensure that the manufacturers or brand owners of disposable & sanitary products shall provide a pouch or wrapper for disposal of sanitary products along with the packets."
Therefore, as regards the compliance of above policy, at State level, the directions have already been issued by respondent No.2 - MPCB. We direct that these directions be complied with by all the Municipal Corporations through the State of Maharashtra, strictly in letter and spirit. MPCB may give adequate publicity to these guidelines for generating public awareness. We decide issue no. (i) accordingly.
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Issue No. (ii) :
33. As per this issue, we have to decide whether the manufacturers of the condoms are duty-bound to provide pouches along with the packets of condoms with a clear instruction/marking thereon that if they are used, these should be disposed of after putting them in pouches which would be provided by them. In this regard, we are of the view that the matter is already pending consideration before the Hon'ble Apex Court in Civil Appeal Nos.835-836 of 2020 (Proctor and Gamble Home Product Limited vs. PC Sharma and others) because the Central Zonal Bench of this Tribunal at Bhopal had passed an order dated 03.08.2017 in Original Application No.30 of 2015 (PC Sharma vs. M/s Proctor and Gamble Home Products Ltd. and others), which is quoted above, directing that the producers of the sanitary napkins and diapers shall provide pouches along with that, which, in our estimation, would include `condoms' too. Therefore, we have to await the decision by the Hon'ble the Apex Court. Till then, we do not find it appropriate to pass any order in this regard. Issue No. (ii) is decided accordingly.
Issue No.(iii) :
34. As regards this issue i.e. whether the disposal of used condoms is being done in accordance with the Solid Wastes (Management and Handling) Rules, 2016 and whether they need to be incinerated post their use in order to ensure that there is no health hazard from their disposal, we are of the opinion that the condoms are of various kinds which we have already noted above, but some are using 97% latex and 3% of other chemicals, which are used to make it bio-degradable but the same is being controverted by respondent No.13 and other contesting private respondents and it is being stated that they are bio-degradable. Hence, as per SWM Rules, they can very well be taken care of adequately. We are not in agreement with the arguments raised on behalf of respondent Nos. 10, 11 and 13 and are of the view that this may be treated at this stage by us as non-biodegradable and [NPJ] Page 18 of 19 therefore, that would be required to be disposed of through incineration process for which guidelines are already laid down by the Central Pollution Control Board (CPCB) in May, 2018. Since this decision may impact large number of Municipal Corporations, they would require installation of large number of incinerators of adequate capacity which would generate energy of 800 degree Celsius, which may be extensive affair for the State to implement the same, we direct respondent No.5 - Department of Urban Development, State of Maharashtra to prepare an action plan and submit it before the Registry of this Tribunal within six months. After receipt of the said action plan, the Registry shall place the same before us for further necessary action/orders, if any. We decide issue No.(iii) accordingly.
35. With the above directions, we dispose of this Original Application.
36. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM November 22, 2023 O.A. No.56 OF 2018(WZ) npj [NPJ] Page 19 of 19