Kerala High Court Quashes Ban On Compostable Plastic Carry Bags

The Kerala High Court on Tuesday quashed an order of the State Government, prohibiting the manufacture, stocking and sale of compostable plastic bags in the state.Allowing a batch of writ petition challenging the state government decision to include compostable plastic carry bags within the ban on single-use plastic, the High Court said -"the decision of the Government to include compostable plastic carry bags within the purview of the ban order in respect of single-use plastic articles cannot be legally sustained" A Single Bench of Justice AK Jayasankaran Nambiar noted that the impugned order was passed on a mere conjecture that non-compostable plastics are being passed off as compostable ones, without any cogent material or empirical data to back the same. It thus allowed a batch of petitions filed by various persons engaged in the business of compostable plastic, and held that the Government order is not legally sustainable. "To impose restrictions on fundamental rights, the State Government would need to have cogent material that would support an inference of overwhelming use of fake composite plastic carry bags in the State. It cannot act on mere conjectures and surmises, unsubstantiated by empirical evidence," the Single Bench held. It added, "A Government decision in that regard has necessarily to be based on reliable material in the form of empirical data that would clearly suggest the detection of sufficiently large number of cases of fake composite carry bags entering the markets in the State, as would render it practically impossible for the State to prevent trade in such carry bags using the machinery for legal enforcement at its command. Only in such event will the Government be able to justify the curtailment of a fundamental right to trade/deal in a legitimate and non-polluting alternative to single-use plastic carry bags." It further held that the impugned order fails the tests of proportionality, inasmuch as it imposed restrictions on the fundamental right of the petitioners under Article 19 (1)(g) of the Constitution, to trade and deal in compostable plastic carry bags- which itself a non-polluting article. Background The Kerala Government, vide order dated January 1, 2020, prohibited the manufacture, stocking and sale of single-use plastic/one-time use plastic in the State. The order was issued by invoking the power delegated to it by the Central Government under the Environment Protection Act. Subsequently, on the basis of a report submitted by a Technical Task Force which suggested that there are growing number of instances where carry bags made from non-compostable plastic are being passed off as compostable ones, the Government included certain types of carry bags made from compostable plastic also within the purview of the ban. Arguments The Petitioners opposed this decision on the following grounds: The products dealt with by the petitioners are not inherently unsafe or capable of causing pollution for they have been recognised as permissible substitutes for plastic articles even under the PWM Rules;Delegated power to issue directions cannot be exercised to prohibit the use of an item whose use is not prohibited by the Central Government;Petitioners having acted on the stated policy of the Central and State Governments, that permitted the use of compostable plastic carry bags as a legitimate substitute for plastic carry bags, and having incurred substantial costs for manufacture/purchase of such carry bags, cannot be deprived of their legitimate expectation to carry on their business of distribution of such carry bags merely on account of a finding that there were many instances noticed of fake carry bags being used in the market;State Government has not produced any material that would suggest that they were possessed of the necessary facts or data that pointed to a proliferation of fake composite carry bags being used in the State. The State Government on the other hand argued that in as much as the impugned Government Orders give expression to a policy decision of the State Government, the same ought not to be interfered with by this Court in exercise of its powers under Article 226 of the Constitution of India. Findings At the outset, responding to the objections raised by the State, the Bench discussed the power/ scope of a Court to sit in judicial review of a policy decision taken by the Government. It noted, "under normal circumstances, the lack of expertise in judges is seen as a reason for courts not substituting its views for those of the primary decision maker. However, when constitutional rights are at stake, the overriding public interest involved in the protection of such rights justifies the courts' resort to a heightened scrutiny and balancing of views through the application of the doctrine of proportionality." The Bench added that ordinarily, when a...

Kerala High Court Quashes Ban On Compostable Plastic Carry Bags

Akshita Saxena

Tags