Plastic Ban : Kerala High Court Lifts Ban On Non-Woven Bags Of 60 GSM & Above

The Kerala High Court on Tuesday held that the inclusion of non-woven bags of 60GSM and above in the list of banned single use plastic items by Government Orders without regard to the GSM standards, and in violation of the provisions of the Plastic Waste Management Rules, 2016 as arbitrary and illegal. 

Justice N. Nagaresh, passed the order in two writ petitions filed before it challenging the ban on the non-woven bags brought into effect by virtue of certain Government Orders by the State of Kerala and the Kerala State Pollution Control Board. 

The Court in this case noted that while Section 23 of the Environment Protection Act, 1986 provided that the Central Government is competent to delegate its powers and functions under the Act, 1986, the rule making power of the Central Government cannot be delegated.

"When, in exercise of the rule making powers under Section 25, the Central Government has prescribed minimum standard in GSM for manufacturing of non-woven bags, then under any delegated power the State Government cannot prescribe a different standard which would negate the rules framed by the Central Government. If any State Government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate", it observed in this regard. 

The Court further noted that while several States such as Odisha, Puducherry, Haryana, Delhi, and so on, had issued orders banning single use plastic, such ban would not extend to non-woven bags of 60 GSM and above.

"Therefore, the total prohibition of manufacturing of nonwoven bags irrespective of the GSM standard of the bags in Kerala, would be discriminatory also", it observed. 

The Case

The petitioners in the first writ petition, namely W.P.(C) No.23089/2022 are members of registered association of the manufacturers of non-woven bags in Kerala, while the petitioner in the second writ petition is a Proprietor engaged in the production of non-woven bags. They were aggrieved by two Government Orders dated December 17, 2019, and January 27, 2020, whereby non-woven bags had been included in the list of 'prohibited items' by the Government. 

It is the petitioner's case that non-woven bags are manufactured using food grade granules, and it in itself, is a food grade item approved by many Government agencies and recognized by the Ministry of Textiles. They averred that they were involved in manufacturing non-woven bags out of Polypropylene which is a food grain granule, and Calcium Carbonate, which is a natural product and is completely bio-degradable under natural process. 

The petitioners pointed out that as per the amendment by the Central Government to the Plastic Waste Management Rules, 2016, it has been stipulated that non-woven plastic carry bags shall not be less than 60 gram per square metre (GSM) with effect from 30.09.2021, and the petitioners could accordingly, manufacture and sell non-woven plastic carry bags of 60 GSM and above. It further directed that the manufacture, import, stocking, distribution, sale and use of single use plastic including polystyrene and expanded polystyrene commodity shall be prohibited with effect from July 1, 2022. On the basis of this notification, several State Pollution Control Boards had prohibited production, stocking, distribution, sale and use of single use plastic items but, permitted manufacturing of carry bags made of virgin or recyclable plastic above 75 micron in thickness, and non-woven carry bags less than 60 GSM. However, the petitioners averred that the State of Kerala issued a letter dated June 24, 2022, banning single use plastic products, including non-woven bags, and thereby had banned all such bags without any distinction. 

It was contended by the petitioners that the Sub Committee of Single Window Clearance Board had granted sanction to manufacture of non-woven carry bags to M/S.K.V. Green Bags in Pathanamthitta District, and the petitioners therefore had a legitimate expectation that the same would be extended to all. Additionally, a report of School for Advanced Research in Polymers (SARP), Department of Chemicals and Petrochemicals under the Government of India had also opined that Polypropylene fibre of 60 GSM can be used multiple times and is recyclable at the end of their use. 

It was further contended by the petitioners that the State Rules were already in place when the Central Government made the 60 GSM rule. It was submitted that the Environmental Protection Act (Act, 1986) provides that the State Government has only residuary powers in this regard, although the Central Government is vested with the power of delegation. It was pointed out that the statute as such only contemplates regulation and not a complete ban. It was additionally argued that the complete ban of non-woven bags violates the fundamental right of the petitioners under Articles 19 and 21 of the Constitution. 

The 3rd respondent Pollution Control Board argued that it was only the implementing agency as per Government Orders, and that it was bound to issue direction in tune with the G.O.s. On behalf of the State, it was contended that the G.O. was issued by it in exercise of the powers conferred on the State Government under Section 23 read with Section 5 of the Act, 1986. It was averred that such exercise of power by the State was necessary in order to address the regulatory vacuum. It was further pointed out that 'public health' falls under Entry 6 of List II, and the State Government has the power to issue the said G.O. under Article 162 of the Constitution. Additionally, it was pointed out that Government Order operates not on individual but on the industry. "The averments to the effect that the rights under Article 19 of the Constitution are breached are absolutely incorrect since the State Government has a larger obligation under Article 21 and all the fundamental rights of the petitioners should bow down before the public interest", it was submitted. Lastly, it was argued that it was open to the State to introduce a higher degree of rigour while dealing with environmental pollution and the same does not in any manner abridge on any of the fundamental freedoms of the petitioner.

Findings of the Court

The Court in this case noted that while Section 23 of the Act, 1986, enabled the Central Government to delegate, the rule-making power under Section 25 is conferred on the Central Government alone.

It was on this basis that it arrived at its finding that if any State Government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate.

The Court also took note of Rule 3(3A)(i) of the Rules, 1986 which stipulates that the State Boards may specify more stringent standards for the relevant parameters with respect to specific industry or location after recording reasons for the same in writing. 

"This is a power given by the Rules to State Boards alone. Circular dated 24.06.2022 issued by the Chairman of the Kerala State Pollution Control Board does not specify any reason for imposing a more stringent standard in the matter of non-woven bags. The Kerala State Pollution Control Board has issued the Circular dated 24.06.2022 solely based on GOs dated 17.12.2019 and 27.01.2020. In the absence of sufficient reasons to prescribe a more stringent standard for non-woven bags, the Circular dated 24.06.2022 cannot stand the scrutiny of law", the Court observed. 

It thus set aside the impugned GOs and the Circular dated 27.01.2020 of the Kerala State Pollution Control Board to the extent they banned the manufacture, transportation, sale and use of non-woven bags of 60 GSM and above.

The Court further added that the "eligibility of the petitioners to manufacture non-woven bags shall be governed by the Plastic Waste Management Rules, 2016 as amended by the Plastic Waste Management (Amendment) Rules, 2021", while disposing the writ petitions. 

Case Title: Nibu Kasim & Ors. v. Union of India & Ors. and M/S Go Green Bags v. Union of India & Ors. 

Citation: 2023 LiveLaw (Ker) 19

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