Brahmapuram Fire | 'Right to Clean Air Basic Human Right' : Kerala High Court Seeks Detailed Plan For Solid Waste Management

The Kerala High Court on Wednesday took note of the plan of action that had been formulated for immediate short term and long term measures for due implementation of the Solid Waste Management and Handing Rules, 2016, by the Additional Chief Secretary, Local Self Government Department; the Ernakulam District Collector; the Secretary of Cochin Municipal Corporation, and the Chairman of the State Pollution Control Board, in the wake of fire at Brahmapuram Solid Waste Management Plant.

On being informed by the Advocate General regarding the High Level Conference convened by the Chief Minister at 5P.M. today, the Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji, observed:

"Without having a categorical statement from these officer by looking at the formative proposals being taken forward, we do not want to incorporate the same in our order. As have been suggested by the AG, we give time till day after tomorrow to the Additional Chief Secretary to place on record on all the points which are finalized by the High Level conference with definite time lines for performance". 

The officers had also unanimously informed the Court today regarding the obligation on the part of the State government, local bodies, District Administration and the statutory corporation, ie, the State PCB to take efficacious measures for addressing the issue at hand. The Court went on to appreciate the predicament of the officers to go on record with affirmative undertakings in the matter, even without their view points having received final approval. 

The Secretary of the Municipal Corporation was also directed to place before the Court for its orders on the implementation of short, medium, and long term measures on Brahmapuram plant facility and also on improving the source collection, handling on collection, disposal of solid waste management within his jurisdiction. 

Importantly, the Secretary was directed to issue notices to all the establishments which come within the scope of Solid Waste Management Rule 2016, which had not taken authorization, and had also not put in place the equipment required for handling the bulk solid waste generated. The Secretary was asked to give such establishments the minimum time, and to place copies of the notices issued at the next date of hearing. 

On being informed by the Secretary that one of the reasons for not containing the fire was that the staff at the site could not immediately use water hydrants available at the site, and that a request for sanction for electricity connection which had been made by the Cochin Municipal Corporation was still pending, the Court directed the Deputy Chief Engineer, Kerala State Electricity Board, Ernakulam to provide a temporary connection to the facility operated by the Cochin Municipal Corporation before 8P.M. today

At the very outset during the hearing today, the Court issued an order stating that in the present suo motu proceeding, public interest was the only priority of this court.

“In the process, this court would be considering issuing directions to be carried out by the officers of the State and also by the persons entrusted with the functions and duties by the environmental laws, Environment Protection Act read with Rules and Solid Waste Management Rules 2016. The present Suo Motu initiative of the Court is not to be treated as publicity interest litigation or prosecution interest litigation initiated by HC,” the Court clarified.

The Court added that it was the custodian and guardian of rights of citizens under Constitution and for protecting the rights assured to citizens under the Environment Protection Act, and other statutes.

“Right to clean air, water, and pollution free environment are the basic human rights,” it added.

The Court said that it sought to address the incidents which had occurred in the recent past that had put these rights of the citizens of the city of Ernakulam at stake, through the present suo motu proceedings.

It thus proceeded to call upon all the non-stakeholders “not to take forward the efforts of this Court in the suo motu writ petition for any ancillary or incidental purposes”.

The Court underscored that it wanted to focus on those issues which had imminent urgency and would not be entertaining any impleading petition for now.

The Court further went on to note that just as charity begins from home, ‘change’ begins with it.

“During the course of further hearing of this writ petition, this Court will consider issuing directives not only to the other departments, but also to the judiciary. This Court for the present thinks that it can also enlist voluntary participation of legal fraternity in solving a mammoth problem in State of Kerala. This we want to place on record the proceedings, the reason being even in future, even we will not be deviating from the minimum rules we will be laying down for consideration in the present suo motu case,” it laid down.

During the hearing today, the Additional Chief Secretary, Local Self Government Department, Government of Kerala, Sarada Muraleedharan, was present before the Court via video conference, in pursuance of its direction yesterday. The Advocate General informed the Court today that there would be a high-level conference tomorrow with the Chief Minister. 

The Court today questioned the Additional Chief Secretary as to whether it was contemplating to issue any notification under latter part of Rule 2 of the Solid Waste Management and Handling Rules, 2016, to embrace all the facilities which are high intense or potential generators of Solid Waste. It added that this was an area where the State Government could “step up and issue a notification to give strength to arms of local bodies”. To this, Muraleedharan replied that the same shall be done. 

The Court further questioned Muraleedharan as to how far the implementation of the 2016 Rules had been carried out. On being informed that instructions had been issued by the government regarding the collection and segregation of non-biodegradable wastes, the Court said, 

"Whatever you're saying is only in letter, We don’t have to tell you how to administer. The problem is with respect to implementation. We cannot be oblivious to what is in front of our eyes. Should we tell you why we haven’t ordered prosecution? We want a concrete solution from you, This is what we are expecting from you. All local bodies are under you". 

The Court added that it would be granting time for the establishment of functional facilities and not merely skeletal facilities in municipal corporations, municipalities and gram panchayats, and insisted that the government commit to the same, by issuing orders and instructions, and making officers responsible for the same. 

"You will devise a plan where elected representatives will be responsible for segregation, disposal, handling of waste. We will be periodically monitoring the short term and long term measures undertaken by you, with a bird's eye view. I'm not setting up any utopian goal, we have already lost 6 years on this. In a state like Kerala you can accomplish results in a short time. We don't want bulky reports. We want a bullet presentation with a timeline". 

Justice Bhatti went on to note in this regard that he had 25 years of experience with environmental law, and insisted that there not be any bulky reports presented. 

"After that, we will be calling upon you to impose fines and penalties," it added. 

The Secretary of the Kochi Municipal Corporation, Babu Abdul Khader, informed the Court today that the fire was fully under control. The fresh fire last night had also been put out. He informed that there had been a stand by team that was working through the night to put out the same. 

The Court further categorically laid down that implementation of all the measures ought not to go beyond the Environment Day this year. 

The District Collector, Renu Raj also informed the Court today of the steps taken by it with the assistance of the Navy, Airforce and Disaster Management Authorities, and also of the amelioration measures. She informed the Court that certain directions had also been issued to the elderly, and others, based on the advice to senior doctors. 

"The District Collector, we are given to understand, is under order of transfer. Today, we take note of her presence and also the offence the officer has taken between Thursday till date. The only omission we note, if any in her approach is, that the efforts the officer has undertaken did not receive the required attention from the public. After hearing the officer, we notice that the responsibilities under the Disaster Management Act have been taken note of and strict action has been taken. By placing this on record, we are not relieving the successor officer from the ongoing exercise", the Court held, and added that the new incumbent ought to be present before the Court on March 10, 2023. 

The Chairman of the State Pollution Control Board brought to the attention of the Court today the vacant posts in the Board. 

"Tell us on Friday about vacant posts in the Board. Under Rule 16, you have enormous responsibility. You can't discharge this unless and until you have sufficient staff. On Friday, what Court expects from you is this is the adverse impact on environment due to this mishap. What should corporation thus be doing? You may independently come to Court with improvement not criticism". 

It added that if the PCB was not forthcoming in its assistance, it would be constrained to rope in other experts including the Central PCB. 

"I don't want to underestimate the officers in Kerala," the Court orally added. 

When the Chairman had informed the Court regarding certain omissions and commissions with which the plant was being operated at Brahmapuram, the Court ordered, "The suo motu case is not taken up for the purpose of penalising omissions or commissions whether intended or unintended. But the suo motu case intends to improve the future and also ensure the complete implementation of 2016 Rules". 

On being informed of the District Collector not having issued any order today granting a holiday to school students, the Court further added, "Collector, we don't want to take you by surprises. Please ask your deputies to immediately go there. What is called 'Precautionary Principle' is there. Please immediately take action on that. Have sufficient information circulated". 

The matter has been posted for further consideration on March 10, 2023, at 1.45 P.M.. 

Case Title: Suo Motu v. State of Kerala & Ors.

Click Here To Read/Download The Order