The National Medical Commission Act: Is it truly going to revolutionize Indian Medical Education?
March 7, 2020
Public Protests: An unfettered right to violence and disruption?
March 8, 2020

RECYCLING OF SHIPS ACT, 2019: AN INSINCERE ATTEMPT AT REGULATING SHIP WASTE GENERATION

On December 13, 2019, the President assented to ‘The Recycling of Ships Bill, 2019’ with the object of regulating the recycling of ships by setting “certain standards” and providing “statutory mechanisms” for enforcement of such standards. In the utter pandemonium caused by the economic slowdown and the Parliamentary passage of the Citizenship Amendment Bill, the Ship Recycling Act slipped under the radar, bereft of careful examination. However, due to the severe repercussions that this legislation could have on workers’ welfare and the environment, it deserves closer scrutiny. 
Background and Rationale
The International Maritime Organization (IMO) adopted the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009. The aim of the Convention (also referred to as the Hong Kong Convention) is to provide guidelines relating to design, construction, operation and preparation of ships which ensure that the process of recycling of ships does not pose an “unnecessary risk” to the environment, human health and safety.
India has been one of the earliest members of the IMO, having ratified and joined the organization as its member-state in 1959. India, being a dualist nation, requires Parliamentary approval of agreements and treaties entered with foreign states. Article 246(1) read with entries 14, 15, 16 of the Union List allude to Parliament having exclusive power to make laws concerning treaties and agreements with foreign states.
On November 20, 2019, the Cabinet Committee on Economic Affairs (CCEA) approved India’s accession to the convention. Commenting on the accession, Smt. Nirmala Sitharaman stated, “[b]y this accession to the Hong Kong International convention, we are bringing in global best practices and we are not becoming a backyard of all rejected ships, but on the contrary scientifically dealing with ship recycling.”
Features
What is covered?
Section 1(3) provides a wide-ranging list of ships that would need to comply with the latest regulations on ship recycling. This list includes existing ship registered in India; any new ship required to be registered in India; other ships while they remain within the Exclusive Economic Zone or territory borders of India; and all ship recycling facilities within the territorial jurisdiction of India.
Creation of National Authority
The Act stipulates the creation of a “National Authority” by designation an officer (not below the rank of Joint Secretary to the Government of India), which shall “administer, supervise and monitor” all activities relating to Ship Recycling [Section 3].
Controlling hazardous materials
Under section 6(1), ships shall not “install or use” prohibited hazardous material as notified by the Central Government, unless the Central Government exempts certain class or category of ships from provisions of section 6(1) [Section 6(2)].
Duties of National Authority
  1. a) Survey: Under section 7(1), the National Authority shall carry out the following survey on ships: initial survey; a renewal survey not exceeding five years; additional survey at the request of the owner after a change, replacement or significant repair; a final survey before the ship is taken out of service and before recycling to ensure all requirements are followed; and any other survey as may be prescribed. 
  2. b) Certification: Under section 7(2), after the survey is conducted a certificate would be issued in accordance with the provisions of this Act, and rules and regulations made thereunder.
Ship recycling facility
The Act intends to regulate the quality of ship recycling facilities. Section 12 lays down the process for the establishment/authorization of ship recycling facilities. The regulation and administration of ship recycling facilities would be done by a Competent Authority established by the Indian Government. 
Critique
  • Inadequate safety measures for workers
Section 15 mandates ship recyclers to provide adequate measures for safety, health, training and welfare of workers in the ship recycling facilities. The Act replicates the safety provisions of the Factories Act, 1948 without attempting to contextualize safety provisions in the process of ship recycling. The workers on ship recycling facilities require certain special protections which the Factories Act does not afford. IndustriAll described ship dismantling as “world’s most dangerous job”.According to official statistics, between 1983 and 2013, there were 470 fatalities in Indian shipbreaking yards. The only bodily protection afforded to workers under the Factory Act is the protection of eyes under section 35. Therefore, the Act should be amended to list out the safety and welfare measures that Ship Recyclers should provide which includes complete body protection. Notwithstanding that, the Act allows sufficient scope for sub-standard quality of safety and welfare measures by obligating ship recyclers to undertake “adequate measures” without outlining what the phrase “adequate measures” would entail.
  • Vague environmental protection clause
Section 21(1)(a) of the Act mandates that ship recyclers “ensure safe and environmentally sound removal and management” of hazardous materials from the ship without determining what constitutes “safe and environmentally sound removal and management”. Furthermore, section 22(1)(a) mandates that there should be no “damage” due to ship recycling activities without defining “environmental damage”. The Act should be revised with clear definitions under sections 21 and 22 avoid multiple interpretations which would lead to prolonged litigation.
  • Excessive Central Government powers
Even a peripheral reading of the Act would suggest that its enactment would arrogate unbridled powers to the Central Government. First, Section 3 establishes a ‘National Authority’ which would administer, supervise and monitor all activities related to ship recycling and yet the Central Government takes upon itself to determine hazardous materials which should not be installed on the ship [Section 6(1)]. Second, the Central Government has the power to exempt a certain class or category of ships without obligating itself to consult experts before exempting a class of ships from the provisions of section 6(1) [Section 6(2)].  Third, the Central Government gets to exempt a vessel or a class of ships from the application of any requirements of this Act if it satisfies itself that the requirement has been substantially complied with or it ought to be dispensed with without providing for reasons [Section 29(1)].
  • Muddling the survey process
The Act appears to muddle the survey process by not designating a single agency to carry out the surveys. Section 7(1) empowers the Central Government to authorize either the “National Authority” or “any person” or “organization” to carry out the survey. This uncertainty has the potential to hamper a clear mechanism of surveying ships for compliance with the Act.
 Conclusion
The Ships Recycling Act, 2019 is inadequate in its attempt at worker protection and environmental conservation. IngvlidJenssen, director of NGO Shipbreaking Platform,expresses that the Act undermines existing worker and environmental protection laws. Even the Hong Kong Convention has been criticized for not doing enough. Furthermore, the Central Government has arrogated excessive powers to itself instead of ensuring that an independent agency with clear guidelines undertakes all activities related to Ship Recycling. Finally, the ambiguous provisions of the Act present a minefield for extensive litigation. The Ships Recycling Act is symptomatic of the government’s history of law-making without due deliberation.

___________________________________________________________________________________________________________________________

ABOUT THE AUTHOR

 

 

Jonathan Ivan Rajan is a 3rd year law student at National Academy of Legal Studies and Research (NALSAR) University of Law.

 

 

In Content Picture Credit: Wikipedia

Leave a Reply

Your email address will not be published. Required fields are marked *