|
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
SYNOPISIS
Petitioner approaches this Hon’ble Court seeking directions, orders and declarations to put an end to the indiscriminate pollution being indulged by the respondents by way of discarding raw untreated human Excreta into the open environment.
The second respondent in the National Railways of India, a statutory body and is a ministry under the Government of India. As on today it holds a monopoly in the business of railways in the country including the State of Kerala. Its railway lines spin a web through the length and breath of the country spanning over 63,940 km. It has over 216,717 wagons, 39,936 coaches and 7,339 locomotives and runs a total of 14,244 trains daily, including about 8,702 passenger trains and transports around six billion passengers annually across twenty-seven states and three union territories. A passenger train carries 1728(24 x 72) passengers at a time all of whom require food, water and Lavatory facilities. Most of these passenger coaches have 4 toilets 2 each on either side of the coach the defecated Human Excreta from these toilets are directly discharged into the open tracks. The human excreta or the sewerage produced by these coaches are neither collected nor treated before they are dumped into the open environment.
It is now well established in Medical Science and in general knowledge as to the hazardous nature of human excreta and the health implications of its unguarded disposal into the open environment. Human excreta always contain large number of germs, which cause diarrhea, Cholera, Typhoid, Hepatitis A, other water borne diseases and parasitic infections. The numerous parasites like the Hookworm, Tapeworm, Roundworm Pinworm etc which are extremely dangerous are spread mainly through human excreta and which results in communicable diseases. The unhindered dumping of Human excreta into the open environment by the Indian Railways is causing unhygienic conditions leading to the spread of diseases throughout the length and breath of the nation.
The seemingly innocent actions of the Railways contaminate the environment and promote unsanitary conditions, negating the very small strides made in sanitation and community health and magnify the propensity to spread diseases including Dengue and Chikungunya, the threat of which is very real on the State of Kerala and even the whole country. The action of the Indian Railways in dumping human excreta and sewerage into the open environment is patently illegal and a direct infringement of the right to life of the People of Kerala and all over the country. Hence this writ petition to quell a nuisance and subsisting dangerous activity.
Provisions of Law.
- Constitution of India.
- Environmental Protection Act 1986.
- Hazardous Wastes (management and Handling) Rules, 1989.
- Code of Criminal Procedure, 1973
- Indian Penal Code, 1860
Dated this the 3rd day of November 2006.
W.P. (C). No. OF 2006
- Dr. George Joseph Themplangad, - Petitioner
Permanently residing at:
Themplangad,
Changanacherry,
Kottayam District,
Kerala - 686101.
Vs.
- Union of India, - Respondents
Represented by its Secretary,
Ministry of Health and Family welfare
New Delhi.
- Indian Railways,
Represented by its Secretary.
Rail Bhavan, New Delhi.
- The Railway Board,
Indian Railways, Rail Bhavan,
New Delhi.
- Central Pollution Control Board,
Represented by its Member Secretary.
- Kerala State Pollution Control Board,
Represented by its Member Secretary.
- State of Kerala,
Represented by its Secretary,
Ministry of Health and Family Welfare
(All processes to the Petitioner may be served on their counsel Sri. Bechu Kurian Thomas, Paul Jacob (P), Roshen D. Alexander, & Naveen Cherian Advocates, 3rd Floor, Pulinatt Buildings, Atlantis Junction, Ravipuram, Cochin – 15)P
(All processes to the petitioner may be served on their above mentioned address)
WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
- This writ petition is filed in public interest challenging the illegal dumping of human excreta and other wastes into the open environment throughout the length and breadth of the Country through the toilets on the Indian Railway coaches in complete disregard of Article 21 of the Constitution of India and the provisions of The Environment Protection Act, 1986, The Air (Prevention and Control) of Pollution Act, and the Water (Prevention and Control) Pollution Act.
- Petitioner is a Non Resident Medical Doctor residing at Las Vegas, United States of America. Though a Non-Resident Indian, petitioner comes to India about twice a year. He also holds an MBBS degree from Kasturba Medical College, Manipal and is an MBA from Pace University, New York and has also undergone a 1 year Diploma in Hospital and Health care management.
- Petitioner has been committed to the cause of health for all and had attended the World Health Assembly in Geneva, Switzerland as a delegate of the World United Nations Association, representing India. Petitioner has gained invaluable experience working with Mother Teresa and her organization. He had developed a close relationship with the revered Mother, who motivated him to do what he can, for the health of those poor and unable to fend for themselves. He has involved himself with various disaster relief efforts such as those following the riots after Indira Gandhi’s assassination, where he associated and worked with Mother Teresa.He has also volunteered at disaster sites such as the Earthquake in San Francisco, Oklahoma Bombing. He is an active member of the Indian Physician Community in the Untied States and advocates for the greater involvement of NRI’s in India’s development. He has actively participated in various discussions for aimed at bringing people of India and United States work for peace truth, health, tourism and economic and educational development. Petitioner has sufficient locus standi and has absolutely no personal or private interest except the development of his motherland and its citizens.
- The right to live in a pollution free environment has been declared as a fundamental right flowing directly from Article 21 of the Constitution of India. Dumping of waste – waste in any form, is an abhorrent act for any civilized society. All the developing countries have developed means to avoid dumping of wastes in the open. Laws have been made to prevent citizens from dumping waste in the open. Dumping waste in the open causes the spread of infections, diseases and various other epidemics. Gandhiji’s motto, “Cleanliness is next to Godliness” has been adopted by people all over the country but without being attempted to be implemented.
- The cause of action for this writ petition is the act of the Indian Railways in disposing human excreta into the open environment throughout the length and breadth of the Country through the toilets constructed in the most ancient method inside the Railway compartments. Such railway compartments constructed and run without utilizing modern technology of disposing of wastes is an infringement on the legal and fundamental rights of all the citizens of the country.
- The Second respondent against whom the Writ of mandamus is sought is a statutory body incorporated originally under the Indian Railways Act, 1890 and later consolidated under The Railways Act, 1989. The Indian Railways (hereinafter referred to as the Railways) comes within the purview of the State as defined under Article 12 of the Constitution of India.
- The Indian Railways is the state-owned railway company of India which due to its sheer mammoth size, importance and earning capacity, has been constituted into a Ministry by itself. Indian Railways holds a monopoly on the country's rail transport. It is one of the largest and busiest rail networks in the world, transporting over six billion passengers and almost 750 million tonnes of freight annually. The Indian Railways is the world's largest commercial or utility employer, with more than 1.6 million employees.
- The Indian Railways traverse through the length and breadth of the country; the routes cover a total length of 63,940 km (39,230 miles). As on 2006 the Indian Railways own a total of 216,717 wagons, 39,936 coaches and 7,339 locomotives and runs a total of 14,244 trains daily, including about 8,702 passenger trains and transports around six billion passengers annually across twenty-seven states and three union territories (Delhi, Pondicherry and Chandigarh). Sikkim is the only state not connected to the humungous rail network traversing through the length and breath of the country. It is pertinent to mention that the passenger division of the railways is the most preferred form of long distance transport in most of the country due to its inter connections, speed and comfort. The poor, the lower middleclass, the middle class, and even the upper middle class all use the rail transport. Rail transport is most acceptable and convenient and affordable for the first three categories.
- A standard passenger train consists of eighteen coaches, but some popular trains can have up to 24 coaches. Coaches are designed to accommodate anywhere from 18 to 72 passengers, but may actually accommodate, especially during the day, four or five times the above said figure and during the holiday seasons the figure may increase several times. Going strictly by the book, each train carries 1728(24 x 72) passengers at a time all of whom require food, water and Lavatory facilities. Needless to mention very seldom are trains found which carry less than the amount as they are always over crowded. Each coach has different accommodation class; the most popular being the sleeper class. Up to nine of these type coaches are usually coupled. Air conditioned coaches are also attached, and a standard train may have between three and five air-conditioned coaches. Most of these passenger coaches have 4 toilets 2 each on either side of the coach, which cater to the lavatory needs of all the passengers who travel on these coaches or otherwise. These lavatories are supplied with running water being fed through overhead tanks. The cleaning and maintenance of these toilets are done by external crews when the train stops at the major railway stations or at service terminals at the start or end of the journey.
- The toilets so maintained by the Indian Railways have commodes (both Western and Indian) which open straight to the railway tracks. In other words, the defecated Human Excreta from these toilets are directly discharged into the open tracks. The human excreta or the sewerage produced by these coaches are neither collected nor treated before they are dumped into the open environment.
- At this juncture it would be discrete to retrospect the implications of the Human excreta being dumped into the open environs. It is by now well established in Medical Science and in general knowledge as to the health implications of unguarded disposal or dumping of human waste. Infact, it is so important in International Health Management that separate study and programmes are being promoted by very many Governments and World Health Organization (WHO), popularly known as ‘Sanitation’. It may be pertinent to mention that most if not all epidemics arise due to poor sanitation.
- Human excreta always contain large number of germs, which cause diarrhea, Cholera, Typhoid, Hepatitis A, other water borne diseases and parasitic infections. The numerous parasites like the Hookworm, Tapeworm, Roundworm Pinworm etc which are extremely dangerous are spread mainly through human excreta and which results in communicable diseases. When people defecate in the open or feaces are dumped in the open, flies, birds and animals will feed on the excreta and can carry small amounts of the excreta away on their bodies and feet. When they touch food, the excreta and the germs in the excreta are passed onto the food, which may later be eaten by another person. Some germs can grow on food and in a few hours their numbers can increase rapidly.
- During the rainy season, excreta is washed from the railway tracks by rain-water and can run into wells and streams. The germs in the excreta will then contaminate the water which may be used for drinking. Many highly infections and communicable water borne diseases are spread in this fashion. Disposing of excreta safely, isolating excreta from flies insects, birds and animals and preventing faecal contamination of water supplies would greatly reduce the spread of diseases.
- It is humbly submitted that unhindered dumping of Human excreta into the open environment by the Indian Railways is causing unhygienic conditions leading to the spread of diseases throughout the length and breath of the nation. A passenger who is infected with a communicable decease who enters a train from Trivandrum to go to New Delhi has the propensity to spread the disease through out the country depending on the route taken by the train. The excreta and sewerage disposed by him on the train makes many communities susceptible to the disease. This is more so in Indian scenario since a large number of the under privileged live near railway tracks, underneath railway platforms and in slums.
- The disposal of refuse can have a significant effect on the health of communities. Where refuse is not disposed off properly, it can lead to pollution of surface water, as rain washes refuse into rivers and streams. There may also be a significant risk of groundwater contamination. Refuse disposed off in storm drains may cause blockages and encourage fly and mosquito breeding leading to many other diseases including Dengue and Chikungunya, the threat of which the State of Kerala and even the whole country is presently facing. These diseases who in their common strains are extremely communicable and potent enough to cause death. The Government spends a large bulk of its resources in trying to contain these diseases, while the Railways, by its seemingly innocent actions, contaminate the environment and promote insanitary conditions, negating the very small strides made in sanitation and community health. It is therefore very important that human excreta generated in the trains be disposed off properly. It is not permitted under law nor is it conducive to public health that human refuse be permitted to be dumped in the open and allowed to build up, as it will attract flies and vermin.
- In the present state of affairs, all wastes and sewerage generated from toilets in railway coach’s are dumped in the open. The highly congested railway stations through out the state is defecated with human excreta on its tracks. The Railways are aware of this problem in as much as they have put up notices in some of the coaches, requesting the passengers not to use the toilets when the train is passing through stations. It need not be mentioned as to how impractical the above message can be, as nature follows its own course befit of human commands.
- It would also be pertinent to mention that the railway tracks pass over roads, rivers and backwaters. These railway tracks and over bridges are not covered as to prevent the waste from falling into the water and roads. Commuters at present flea railway over-bridges at the instance of a train passing through, lest they be sprayed by the Human feces and sewerage dumped mercilessly onto them. The Dumping of human excreta in the open environment creates a nuisance to the general public which is again an offence under law. It is quite often an interesting sight to watch people waiting on vehicles on either sides of an under pass over which a railway train passes. It is the fear of human excreta falling on the heads that forces all to wait until the train passes.
- The Respondents are not permitted under law to dispose human excreta into the open environment. All polluters are bound by law to dispose off toxic wastes as directed by law and its provisions. The Railways are liable to install necessary pollution control and waste disposal mechanism whereby the waste generated out of Railway coaches are disposed scientifically with latest technology without it being open into the environment.
- The Aeroplane uses the modern technology of cleaning the toilets with air thereby minimizing the usage and wastage of water. The waste is collected onto a tank and chemically disposed off. This technology is easily available all over the world. All railway systems in the world, except the Indian Railways utilize this technology. In fact the Metro Railways in Delhi and Calcutta and the proposed Bangalore, Mumbai and Cochin will have these tatest technologies adopted. But unfortunately, Indian Railways, refuse to adopt the latest technology for reasons best known to them.
- The Indian Railways is a profit making enterprise which has every financial means to make such necessary modifications to the rail coaches so as to bring its operations in due compliance with the law. Even otherwise financial incapacity is not a reason to shy away from the basic necessity of providing wagons fit for human travel.
- Furthermore India and especially Kerala is being promoted all over the World as a hot destination for tourists. There are specially designed tourist trains one of which is called “Palace on Wheels”. It is perhaps apt to describe it as “toilet on wheels” as none of these trains provide for the use of modern technology. The technology being used is as old as the invention of railway train.
- Aggrieved by the illegal disposal of human excreta and sewerage into the open environment by the Indian Railways and having no other alternative or efficacious remedy, petitioner prefer this Memorandum of Civil Writ Petition under Article 226 of the Constitution of India on the following among other;
A. The action of the Indian Railways in dumping human excreta and sewerage into the open environment is patently illegal and a direct infringement of the right to life of the People of Kerala and all over the country.
B. Polluting the environment would also amount to a voluntary abdication of fundamental duty of the respondents under Article 51A(g) and is against the Directive Principles of State Policy enshrined under Article 47 of the Constitution of India.
C. The toilets of Indian Railway Compartments contains conduits or pipes that open into the ground which discharges sewage and other solid and liquid wastes into water and land, directly and creates nuisance and render such water harmful and injurious to public health, safety and life of humans, animals, plants and other aquatic organisms. It is a pollutant causing pollution as defined under the Water Act and the Air Act. Under Section 24 of Water Act, no person can cause or permit any water pollution from being disposed into the water. Similarly the Air Act prevents a pollutant from being dumped into the land. Railways are unscrupulously carrying out the dumping of waste and pollutants in violation of law.
D. Human excreta and Sewerage dumped from rail coaches is a Harzardous Substance as defined under Section 2(g) of the Environment Protection Act, 1986. It is also a Hazardous Waste as defined under Rule 3(14) of the Hazardous Wastes (Management and Handling) Rules, 1989. Dumping of hazardous substances and waste into the open air land and water is an act liable to be prevented by the authorities like respondents 4 and 5.
E. Human excreta and sewerage thereof always contain large numbers of germs, some of which will cause diarrhea and various other parasitic, infectious diseases. When people become infected with diseases such as Cholera, Typhoid and Hepatitis A, their excreta will contain large amounts of the germs which cause the disease to be spread, endangering the life of human beings and other animals by making them susceptible to dangerous communicable deceases. Accordingly Human excreta bears the characteristics of a Hazardous Substance as defined under Rule 2(e) of the Rules and Code 6.2 and 12 of Part B of Schedule. 3 to the Hazardous Wastes (Management and Handling) Rules, 1989.
F. The Indian Railways is liable to comply with Section 8 of the Environment Protection Act, 1986. Section 8 makes it mandatory for the Indian Railways to handle Hazardous substances in accordance with procedure and after complying with safeguards. In the absence of which the Indian Railways are prohibited from conducting operations within the State of Kerala. In contravention of the provisions attracts penal provisions under section 16 and 17 of the Environment Protection Act, 1986 and the 4th and 5th respondents are bound to initiate penal action against respondents 2 and 3 and their officers in charge under the provisions of the Environment Protection Act and its allied laws.
G. The Indian Railways as the operator and occupier of the railway coaches that discharge hazardous waste is responsible for the collection, reception, treatment, storage and disposal of the same as warranted under Rule 4 and 4A of the Hazardous Wastes (management and Handling) Rules, 1989. The Indian Railway is also liable to receive authorization as Rule 5 of the rules and the Human Excreta discharged from the Railway Coaches is liable to be disposed only in such facilities as are authorized for that purpose by the Kerala State Pollution Control Board.
H. Discharge of Human Excreta and sewerage into the open environment is also public nuisance as contemplated under Section 133 of the Code of Criminal Procedure, 1973 and the State Government and officers under the code are liable to require the Indian Railways by notice to cease such nuisance within such reasonable time.
I. The Central and State Pollution Control Boards are obligated under the various Pollution laws to suggest remedial measures to avoid pollution and to monitor and prevent any pollution of the environment. Blatant disregard of the pollution laws and right to life of the individuals and scant social conciseness of the Railways and even the Pollution Control Boards is resulting in great danger to public health and safety. Unless the respondents are directed to utilize the modern technology and dispose off the waste generated in the trains scientifically, the life of citizens will be constantly under danger.
J. The act of the Indian Railways in discharging Human Excreta and sewerage into the open environment is a malignant act that causes the spreading of infection and disease dangerous to life, as contemplated under Section 270 of the Indian Penal Code, 1860. In the absence of immediate cessation of the disposal of Human excreta into the open environment by the Indian railways, the officers of the Company are liable to be prosecuted under law.
Hence it is humbly prayed that this Hon’ble court may be pleased to pass an order allowing the following;
- Issue a writ of mandamus or other appropriate writ order or direction directing respondents 2 and 3 to initiate appropriate steps forthwith to prevent disposal of Human Excreta and sewerage from the railway trains into the open environment.
- Issue a writ of mandamus or other appropriate writ order or direction directing respondents 4 and 5 to initiate appropriate action and pass necessary directions to prevent disposal of human waste into the open from the railway trains.
- Issue a writ of mandamus or other appropriate writ order or direction directing respondents 1 to 6 and other authorities under them to take such measures so as to develop and enforce such procedures and mechanisms to comply with the safe and proper disposal of all waste being produced from Railway Coaches including manufacturing railway coaches with modern techniques of waste disposal.
- Issue a writ of mandamus or other appropriate writ order or direction directing the 4th and 5th respondents to initiate prosecutions under the Indian Penal Code, 1872 and the Environment Protection Act, The Water (Prevention and Control) of Pollution Act, and the Air (Prevention and Control) Pollution Act against the Officer and responsible persons of respondents 2 and 3 for dumping waste into the open.
- Issue such other appropriate writ or direction that may be deemed to be just and equitable in the facts of the case. Direct the respondents to pay the entire costs of this petition.
INTERIM RELIEF:
PETITION FILED UNDER RULE 150 OF THE HIGH COURT RULES
For the reasons stated in the accompanying affidavit thereto it is humbly prayed that this Hon’ble Court may be pleased to direct the 2nd and 3rd respondents to forthwith manufacture railway coaches in such a way as to prevent dumping of human waste into the open pending disposal of the writ petition.
Dated this the 3rd day of November 2006.
Counsel for the Petitioner
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C) NO. OF 2006
George Joseph Themplangad - Petitioners
Vs.
Union of India & others - Respondents
A F F I D A V I T
I, George Joseph Themplangad, S/o. T. V. Jose, aged 52 years, now residing at Themplangad, Changanacherry, Kottayam District, Kerala - 686101, do take oath and solemnly affirm and state as follows;
- I am the petitioner in the above case and I am aware of the facts of the case and am competent to swear to this affidavit.
- All facts stated above are true and correct and Exhibits produced are true copies of the originals. I have not filed earlier petition seeking similar and identical reliefs in respect of the same subject matter.
- The reliefs prayed for may be allowed.
All facts stated above are true and correct
Dated this the 3rd day of November 2006.
Deponent
Solemnly affirmed and signed before me by the literate deponent who is personally known to me on this the 3rd day of November 2006 at my office at Ernakulam.
Bechu Kurian Thomas
Advocate
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C) NO. OF 2006
George Joseph Themplangad - Petitioners
Vs.
Union of India & others - Respondents
I N D E X
1. Synopsis 1 - 2
2. Writ Petition 3 - 14
3. Affidavit 15
Dated this the 3rd day of November 2006.
Counsel for the Petitioner
Presented on: 8.11.2006
Sub:- Public Interest litigation – Challenge against pollution by the Indian Railways
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
W.P.(C) NO. OF 2006
George Joseph Themplangad - Petitioners
Vs.
Union of India & others - Respondents
WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
BECHU KURIAN THOMAS (B 117) K/621/92
PAUL JACOB (P) (P 575) K/485/2003
ROSHEN D. ALEXANDER (R915) K/245/04
NAVEEN CHERIAN (N 287) K/1101-A/2003
COUNSEL FOR THE PETITIONER
|
