Introduction
As the world settles deep into the early decades of the 21st century, the glittering electronic and IT Revolution has come with its own set of challenges, particularly relating to the management of electronic waste. Almost uniformly, electronic waste, commonly referred to as “e-waste”, is regarded as wastes of hazardous category. India’s attention is towards the fundamentals of waste management, which at present –in the definition, vision and foresight of our policy makers- revolves only around the larger context of solid waste management, with the exception of the weak E-Waste Management Rules, 2016. In India, most of the solid waste is incinerated.[i] Once we bring electronic waste into the picture, the sheer absence of how to manage electronic waste in a cross-country setting is even more staggering.
The absence of any rule or regulation to deal with e-waste in rural areas of India, particularly when rural areas are now expected to manage their waste on their own (in consequence of democratic and constitutionally empowered decentralization at the lowest strung of governance), India has much to do.
In the context of municipal areas, while there are islands of Rules based governance, funded by the United Nations Framework on Climate Change[ii] and others, the progress on ground is limited to certain pockets of the most developed segments in India – namely, Delhi,[iii] Bangalore,[iv] Hyderabad[v] and Mumbai[vi]. The paucity of research on how Tier 3 or even Tier 2 cities deal with e-waste shows that the picture even in urban India is not rosy. This research is missing not because of lack of procedural mandates, but rather the lack of implementation of those mandates.
Even when the performance of some of these islands of e-waste management in the best of urban India is compared with global contemporaries, such as the European Union, the important ingredients governing the latter are conspicuous by their absence with regard to the former. In the context of e-waste, much touted concepts such as an Extender Producer Responsibility (EPR) are extremely significant to erect any system to manage e-waste in an environmentally sound manner. While the concept of EPR is only gradually gaining traction in India’s solid waste management echelons, the concept is yet to occupy the central place it deserves in the context of e-waste, as is discussed later in the article.
While, on the one hand, there is heightened governmental emphasis on Digital India, Start Up India, Smart Cities Mission, Swachh Bharat Abhiyan, digitization of various government services, laptop distribution among senior secondary school and college students; the corresponding need of creating an enabling waste management infrastructure is not being addressed by our policy makers and bureaucrats. On the other hand, constitutional courts in India have only seldom dealt with this growing menace and in their intervention, they have drawn their source of power from India’s ratifications abroad and not so much from the growing domestic need to manage the state of crisis.
This article will first sketch out India’s regulatory problem by pointing out how the relevant Rules/bye-laws/legislations ineffectively deal with the concept of e-waste management. After pointing out the loopholes in the governing and applicable legal framework, the article will then assess how India’s constitutional courts deal with the electronic waste management crisis. Furthermore, best international practices would be analyzed to ascertain how much and what can be incorporated within the Indian system. In the context of these segments, the article will conclude with some possible positive suggestions to strengthen the regulatory framework so as to facilitate effective on-ground results with regard to electronic waste management in India.
Loopholes in the Legal Framework
E-Waste (Management) Rules, 2016 – These Rules had endeavored to place responsibility of managing waste upon producers of products under the Take Back scheme. The idea behind this was to return such products to authorized dismantlers and recyclers. However, not much success has been reported from such efforts in most parts of the country, which places an important question mark on the framing of such Rules itself, considering the poor implementation. In Re Outrage as Parents End Life after Child’s Dengue Death,[vii] the Hon’ble Apex Court had suo moto taken up the matter and had slammed lakhs of fines on various state governments and various Union Territories for not complying with such Rules. Three years later, administrative and political inertia still governs the field.
E-Waste Management (Amendment) Rules, 2018 – In the aftermath of the Supreme Court’s observations and lack of implementation of the 2016 Rules, the 2018 Amendment was brought in with largely the same objective as the 2016 Rules. The 2018 Amendment bid to formalize the e-waste recycling sector. In a bid for a vision for the future and the medium term, from 2023 onwards, the phase wise collection target had been revised to 70% of the quantity of waste generation.[viii] Moreover, separate e-waste collection targets have been drafted for new producers.
A clause was added to the effect that Producer Responsibility Organisations (PRO) would apply to the Pollution Control Board for registration to undertake activities as prescribed in the Rules.[ix] However, yet again, lofty policy measures have not been backed by on-ground credible action for any significant change as to collection, management, and disposal of e-waste. Moreover, lack of awareness about the Rules and no effort thereto further highlights the challenges in the present legal framework.
Solid Waste Management Rules, 2016 – The 2016 Rules, superseding the Municipal Solid Waste (Management and Handling) Rules, 2000, were drafted in the aftermath of the directions of the Apex Court in the case of Almitrah Patel,[x] and aimed at urban settlements to govern and facilitate responsible and scientific waste disposal practices. By definition, solid waste includes e-waste. The responsibility of officials, such as the District Magistrate,[xi] the Central Pollution Control Board[xii] and local authorities[xiii] has clearly been prescribed. Under Rule 17, the manufacturers of disposable products have been made responsible to assist local authorities in establishing a waste management system.
While the 2016 Rules ensure that each cluster of towns or each urban settlement has a solid waste processing and disposal facility or a regional sanitary landfill, yet the field of e-waste management is not adequately addressed in these Rules. India needs to safeguard itself from this box ticking exercise with regard to e-waste management since this is a class unto itself. With growing modernization and emphasis on digital India, common doctrines like user-generator fee for waste and spot fine for littering, etc will not help serve the purpose of managing e-waste specifically.
Another reality of India’s e-waste management is that the informal sector rules the roost, with most poor people working without any safety gear. In this context, as per a credible report by National Center for Biotechnology Information, around 50,000 tonnes of waste is imported into India for recycling purposes.[xiv] For a country of 1.3 billion people, which has enough waste of its own to deal with, in the background of e-waste management, this does not paint a rosy picture. The 2016 Rules indicate that e-waste by itself is a distinct class within the Rules as well as outside and the kind of focus and awareness that is needed to address its challenges is still wanting in today’s administration.
Judicial Court Decisions
In Shailesh Singh v. State of Uttar Pradesh,[xv] the National Green Tribunal (NGT) had directed the Central Pollution Control Board to place a ‘review and action-taken’ report for ensuring enforcement of the 2016 Rules and Environment Protection Act, 1986 by 31st January 2020. This Order was passed by the Principal Bench while considering a plea for remedial action against unscientific disposal of e-waste resulting in contamination of groundwater and soil acidification. It is a compliance report that was filed in this case by the Ministry of Environment, Forest and Climate Change dated 14 September 2018 that showed that India is the fifth largest producer of e-waste in the world. 95% of e-waste is recycled by the informal sector and only 5% is recycled by the formal sector. However, the total quantum of e-waste that is recycled has not emerged clearly.
As it is with various facets of India’s policy and legal enforcement, it is only when remedies are sought through Courts and NGT that anything is done about major problems and e-waste is no exception. However, the adversarial form of looking for remedies has its own limitations since the problem of e-waste needs a programmatic and specific response addressing all aspects of the matter. Therefore, judicial activism in the field of e-waste is unlikely to substitute the important role that the legislature and executive have to discharge along with the local bodies in this regard.
In Mahendra Pandey v Union of India,[xvi] a fine of Rs.10,00,000 was imposed on the UP Government for not taking adequate action to ensure removal of hazardous e-waste from the banks of river Ram Ganga. Despite the NGT directive to the District Magistrate to take steps for setting up temporary treatment, storage and disposal facilities, the Ram Ganga incident offers an important reminder on the stakes involved if the problem of e-waste is taken as lightly as it is taken today.
In Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,[xvii] it was the Court’s consideration of the contentions of the Petitioner who relied upon the Basel Convention and the High Powered Committee of Prof. Menon that paved the way for the Hazardous Waste Management and Handling Rules, 2003 to come into force. The import of toxic materials was banned in the judgment; however, the reality even today is very different.
The EPR policy is a responsibility on the state governments to monitor manufacturers, producers and recyclers.[xviii] However, how many organizations are actually following the EPR in letter and spirit is yet to be seen. The Government of the day needs to come up with innovative solutions such as constructing a combination of Corporate Social Responsibility and EPR to ensure that the lofty ideals of e-waste management are actually brought into effect. Even though the 74th Amendment to the Constitution gave Nagar Panchayats and Municipal Corporations independence, authority and power to impose taxes, duties, tolls and fees for service including solid waste management,[xix] performance of local bodies in this regard is far from satisfactory.
Rural India
It is surprising to note that even as most of India resides in rural India, there is still no specific policy design or a solitary successful example of e-waste management for rural India, where the broad heading of solid waste management or hazardous waste management is still used to cover all categories of e-waste. The need for Gram Panchayats to be equipped with e-waste management is essential since with governmental focus on Digital India and several schemes such as disbursement of laptops and gadgets to rural youth, e-waste is raising its ugly head even in India’s countryside. Our absolute lack of focus in this regard can prove to be disastrous for the ecology therein.
There are schemes for rural infrastructure upgradation and studies of the National Institute of Rural Development and Panchayati Raj (NIRD-PR) on general solid waste management practices and some villages are indeed doing well in this regard through support from the Ministry of Drinking Water and Sanitation, Government of India, etc which is ensuring that appropriate handbooks are distributed even in rural India.[xx] The NIRD-PR has come out with a set of model byelaws in 2019 for Solid Waste Management by Gram Pachayats,[xxi] however, there is no specific scheme with regard rural e-waste management.
Best International Practices
In the European Union, compliance systems are run by independent associations that are funded by producers to take on the financial and physical burden of e-waste management. They use the payment received to finance separate schemes for historical waste and for new products. Installation of collection, recycling and financing system for e-waste exists in all 27 member states of the European Union. Some e-waste management systems use an advance disposal fee, which is collected by the retailer when the consumer purchases a new product.[xxii]
Something like this could be considered in India as well since financing some of these e-waste management systems is a major challenge. Some collective compliance systems appoint a single recycler for the recycling of a particular category of e-waste because of economies of scale. In India, there is a large potential to boost the re-use of items, however, safety standards need to be clearly set up to facilitate such reuse.
In this context, the example of Norway stands out. Norway’s Ministry of Environment obligates producers/importers of e-waste to be members of a take back company and to pay a fee for such membership in the take back companies.[xxiii] Even before starting their operations, such companies need to get an approval from the Norwegian environment agency that evaluates applications received on over 50 important criteria. This criterion includes specific details about the collection and management of e-waste.
Recommendations
Efficient implementation of EPR and bringing the spirit of EPR into action mode is important for successful management of e waste.
Distribution of tasks and duties for compliance of specific targets is essential for far reaching impact of e-waste management.
The collection, transportation and management of electronic waste to authorised agencies/recyclers as notified by local self-governance authorities from time to time.
Relevant and correct information to be made available to regulator and policymakers about the threats posed by e-waste and the necessity of compliance to targets.
Sufficient funding to be made available for collecting and recycling of e-waste.
Awareness to be created amongst citizens regarding toxicity of e-waste, the hazards thereof and for the need to report improper practices.
Responsible reliance to be placed on private entities to ensure efficient management of e-waste, if the government continues to fare as poorly as it does today in managing the same.
[i] Sudhirendar Sharma, ‘Confronting the challenge of mounting waste’, 6 July 2017, available at https://pib.gov.in/newsite/printrelease.aspx?relid=167191. See also Swati Singh Sambyal, Richa Agarwal, ‘Burn it All’, 12 Oct 2017, available at https://www.downtoearth.org.in/news/waste/burn-it-all-58827.
[ii] ‘United Nations System-wide Response to Tackling E-waste’, September 2017, available at https://unemg.org/images/emgdocs/ewaste/E-Waste-EMG-FINAL.pdf, pp. 20.
[iii] ‘E-waste: From Toxic to Green’, available at https://unfccc.int/climate-action/momentum-for-change/lighthouse-activities/e-waste-from-toxic-to-green.
[iv] Anwesha Borthakur, Madhav Govind, ‘How well are we managing E-waste in India: evidences from the city of Bangalore’ Energ. Ecol. Environ. (2017) 2(4), pp. 225–235.
[v] ‘E-Waste in India’, Research Unit (Larrdis) Rajya Sabha Secretariat New Delhi, June 2011, pp. 50, available at – https://rajyasabha.nic.in/rsnew/publication_electronic/E-Waste_in_india.pdf.
[vi] Id pp. 47; ‘Mumbai to Start First Re-cycling Plant’, EBR (Energy Business Review), 6 July, 2009, available at – http://www.energy-business-review.com/.
[vii] Re Outrage as Parents End Life after Child’s Dengue Death, (2016) 10 SCC 709.
[viii] E-Waste Management (Amendment) Rules, 2018, sched. III.
[ix] E-Waste Management (Amendment) Rules, 2018, r. 2(b)(I).
[x] Almitra Patel and Anr v. Union of India and Ors 2016 SCC OnLine NGT 2981.
[xi] Solid Waste Management Rules 2016, r. 12.
[xii] Solid Waste Management Rules 2016, r. 14.
[xiii] Solid Waste Management Rules 2016, r. 15.
[xiv] Needhidasan, Santhanam et al. “Electronic waste – an emerging threat to the environment of urban India.” Journal of Environmental Health Science & Engineering, vol. 12:36. 20 Jan. 2014, available at
[xv] Shailesh Singh v. State of Uttar Pradesh, original application no. 512/2018, available at
[xvi] Mahendra Pandey v. Union of India, 2018 SCC OnLine NGT 2468.
[xvii] Research Foundation for Science, Technology and Natural Resource Policy v. Union of India, 2012 7 SCC 769.
[xviii] Shreya Mishra, “Extended Producer Responsibility: Possibilities In Indian Context” SCC Blog, March 2019, available at https://www.scconline.com/blog/post/2019/03/31/extended-producer-responsibility-possibilities-in-indian-context/.
[xix] The Constitution (Seventy Fourth Amendment) Act 1992, a. 243W, schedule 12, entry 6.
[xx] Solid Waste Management in Rural Areas: A Step by Step Guide for Gram Panchayats, Centre for Rural Infrastructure, National Institute of Rural Development & Panchayati Raj, 2016, available at http://nirdpr.org.in/nird_docs/sb/doc5.pdf.
[xxi] Available at http://nirdpr.org.in/nird_docs/sb/modelbylaw290817.pdf.
[xxii] Satish Sinha, Priti Mahesh, et al., Waste Electrical and Electronic Equipment The EU and India: Sharing Best Practices, available at http://eeas.europa.eu/archives/delegations/india/documents/eu_ india/final_e_waste_book_en.pdf.
[xxiii] Sadia Sohail, ‘E-waste disposal: What India can learn from Norway’, Down to Earth, July 2015, available at https://www.downtoearth.org.in/blog/waste/e-waste-disposal-what-india-can-learn-from-norway-48398.
Authored by – Abhijay Negi, alumnus of University of Oxford, Advocate, Uttrakhand High Court and Founder of leading NGO, Making a Difference by Being the Difference (MAD)
Co-authored by – Smita Gupta, IVth year, B.A. LL.B. (Hons.), Rajiv Gandhi National University of Law, Punjab and Senior Editor, RSRR