Single use plastics a menace, Madras HC upholds Tamil Nadu Plastic Ban

The Madras High Court on Thursday confirmed the Tamil Nadu Government’s ban on single-use/throwaway plastic starting from January 2019 through its June 2018 Government Order (GO)..In doing so, the Court also commented on the need to curb the menace of plastic in general, given its increasingly harmful impact. The Division Bench of Justices R Subbiah and Krishnan Ramasamy said,.“… we wish to observe that slowly and steadily, plastic had infiltrated and intruded into our daily lives and the large scale use of plastic, for the purpose to which it was not intended to, had in fact sounded a death knell to our ecology and environment. By virtue of burgeoning use of plastics for all purposes, it resulted in mounting of garbage strewn all through the lanes and by-lanes of the streets and the Municipal authorities throughout the State find it an uphill task to deal with the situation. .Above all, plastics which are meant for single use are certainly a menace inasmuch as it is littered at the throw of a hat. The more the easier the production of plastic, as we could infer, be it one time use and throw away plastic or other similar nature of product, the more easily it is thrown away in the bins or strewn haphazardly, which causes great concern to the environment and it is a huge pollution menace.”.The Court passed the ruling while dismissing a challenge made to the GO by various petitioners including manufacturers of non-woven plastic carry bags, manufacturers of paper cups and manufacturers of plastic carry bags..The Court noted, inter alia, that the Tamil Nadu Government had the legislative competence to pass the GO in exercise of its delegated powers under Section 5 of the Environment (Protection) Act. As stated in the common order,.“… we feel that in the large interest of public, the State Government, in discharge of it’s obligations enumerated under Article 246 of The Constitution of India, invoked the delegated powers vested in it by the Central Government under Section 5 of the Act, to which the State Government is legislatively competent to do so… by virtue of the delegated powers, the State Government has passed the order, which is impugned in these writ petitions.”.Further, the Bench also opined that apart from Section 5 of the EPA, the state government is also competent to impose the plastic ban in view of Articles 48A and 256 of the Constitution..“Even assuming that the power of the State Government is not traceable under Section 5 of the Act, still, the source of power for the Government is traceable to Article 256 of The Constitution of India, which confers exclusive power on the Government to deal with certain subject morefully enumerated in List III of Seventh Schedule of The Constitution of India….…Even otherwise, Article 48-A of The Constitution of India emphasises and imposes an obligation on the State Government to endeavour to protect and improve the environment and to safeguard the forests and wild life of the Country. In discharge of such an obligation imposed on the part of the State Government under Article 48-A of The Constitution of India, the Government is wholly justified in imposing the ban on one time use and throw away plastics.”.In this backdrop, the Court has also relied on the law laid down by Supreme Court precedent to reiterate that matters of government policy cannot be subject to judicial review..This apart, the Court also found no merit in extensive arguments made by the petitioners that the GO-imposed plastic ban was repugnant to the 2016 Central Government Plastic Waste Management Rules, that there was no scientific basis for imposing the hasty ban, that there has been no notice of the ban for plastic-manufacturing stakeholders, that the ban was discriminatory since it exempted certain categories of plastic and that there was a violation of natural justice principles..Dismissing a contention that the petitioners’ right to livelihood was being affected, the Court further emphasised that public interest would outweigh private interests and that the right to livelihood was subject to reasonable restrictions..In view of these broad grounds, the High Court dismissed all the writ petitions..Ban single use multi-layered plastic wrappers and covers.Before parting with the matter, the Court observed that the GO banning plastic in Tamil Nadu remained on paper given the various exemptions made along with the ban..“In other words, we feel that even though the Government of Tamil Nadu has banned one time use of plastic and other similar products with effect from first January 2019 with an avowed object to make the environment in the State a plastic-free one, we feel that the ban is neither effective nor complete. Inspite of the ban, one time throw away plastics are freely made available or accessed for being used.”.The Court proceeded to opine that the state ought to have considered extending the ban to multi-layered plastic wrappers used for covering purposes as well, given that it is also a form of single-use plastic. As observed in the order,.“When one time use of plastic carry bags are banned, the Government, in its wisdom, ought to have considered banning similar one time use and throw away plastics through which consumables are sold. .At any rate, the Government cannot say that consumables sold through multi-layered packs are essential commodities and therefore, they are exempted. Had the Government imposed a ban on those multi-layered products, it could have prevented the environment to a great extent. .In fact, it is argued by the counsel for the petitioners that it is these multi-layered packs through which consumables are sold would cause greater harm than the use of other plastics inasmuch as there is no scope for these multi-layered packs to be get de-composed. .The Court had held that the plastic ban cannot be viewed as discriminatory since it was imposed with a view to prevent environmental disaster, On the same reasoning, the Bench proceeded to hold that,.“… the exemption granted by the Government to some of the consumables sold through one time use and throw away plastics deserves to be re-considered by the Government.”.It, therefore, directed the Government to extend the scope of the plastic ban’s implementation to cover such plastic items as well..“We therefore direct the Government to implement the banning of all multi-layered plastic wrappers and covers which are meant for one time use and throwaway, so as to make the ban effective and meaningful.”.It also made certain suggestions to ensure that the plastic ban is strictly implemented, including the imposition of hefty fines for violations and the promotion of alternatives to plastic such as cloth, jute etc. Inter alia, it also observed,.“The Government can also explore alternatives for supply of Aavin milk through bottles or any other means, which was hitherto followed in the State instead of using the plastic cover.”.The judges concluded their 96-page judgment while taking note of December 2018 verdict of a coordinate Bench of the Court, which had dismissed an identical challenge to the GO. In that order, the Court had also recommended that all forms of plastic should be gradually phased out, while upholding the GO. Endorsing the proposal, the present Bench commented,.“We reiterate the same and direct the Government to ensure that the order imposing ban on various items of plastics is scrupulously followed and implemented without allowing it to remain on paper.”.Among the counsel who argued for petitioners challenging the ban were Senior Advocates TP Manoharan, PS Raman, Ajmal Khan and P Wilson and Advocates Kundam Kumar Mishra, Thiyagarajan, KH Ravi Kumar, M Radhakrishnanand N Damodaran..On behalf of the state, arguments were made by Additional Solicitor General G Rajagopalan, assisted by Special Government Pleader for Central Government Venkataswamy Babu; Additional Advocate General PH Aravindh Pandian assisted by Additional Government Pleader (Forest) SV Vijay Prashanth, N Rajan and Central Government Standing Counsel, TL Thirumalaiswamy..Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.