Tamil Nadu’s Ban On Reinforced Paper Cups Reasonable,In Public Interest To Control Pollution: Supreme Court

The Supreme Court on Friday (20.10.2023) refused to interfere with the order of the Madras High Court that had upheld the ban on reinforced paper cups introduced in the state of Tamil Nadu in 2019. However the Apex Court directed the Tamil Nadu Pollution Control Board (TNPCB) to re-consider the ban on non-woven bags afresh in the light of the amended Plastic Waste Management Rules, 2016 wherein the Centre has regulated its use instead of imposing a complete ban.

The 2016 Rules were amended in 2021 by the Centre, to allow non-woven bags above 60 Gram Per Square to be manufactured.

A bench of Justice Ravindra Bhat and Justice PS Narasimha passed the order in an appeal by an association of manufacturing units involved in the manufacture of ‘reinforced’ paper cups, and a manufacturer of non-woven plastic bags who had approached the Apex Court against the State Government’s decision to ban their respective products.

The main argument of the paper cup association was that the use of plastic in paper cups was minimal, with only 6% plastic and 94% paper. It was contended that the blanket ban of their products was unreasonable, arbitrary, and disproportionate.

The Court however, observed that these cups were indiscriminately used and thrown, as a single use product. The Court also observed that they were non-biodegradable and were difficult to recycle.

“…given that there is scientific basis for the ban, and it is the State Government’s policy decision to ban numerous categories of single use plastic products, in public interest, there is little room or reason, for this court to interfere on the ground of merits of the ban,” the Apex Court said.

Though the Appellant’s Fundamental Right under Article 19(1)(g) (right to practice any profession or to carry on any occupation, trade or business) was being restricted, this restriction was reasonable, the Court said.

“..the contention that the ban is over inclusive, and disproportionate, are in the considered opinion of this court, not made out in relation to reinforced paper cups. The appellant’s right under Article 19(1)(g) has, without a doubt, been restricted; but in the larger interest of the general public to enjoy a pollution free environment the restriction was reasonable as per Article 19(6) of the Constitution of India, and is therefore, upheld” the Apex Court said.

The paper cup association also argued that the mandatory consultative mechanism provided in Rule 4 of the Environment (Protection) Rules, 1986 of publishing a draft notification and inviting objections and passing a final notification after considering the objections of stakeholders was not followed in this case.

The Court observed that even though a pre-decisional hearing was not granted to the Appellants as mandated, before the order was notified in 2018, the ban needed to be upheld in the light of the larger public interest involved. However, the Court also observed that, the Appellants were given an opportunity of hearing before the ban came into effect in 2019 and their representation was decided on merits.

“In the present case, there is no doubt that a pre-decisional hearing was not granted. Yet, the court cannot be oblivious of the fact that the state notified the rules, on 25.06.2018 and did not bring it into force immediately. The ban was made effective, only from 01.01.2019. The petitioners and other parties were afforded the opportunity to represent and make their views known, which they did. Undoubtedly, the state did not accept those views. The question then, is whether this court should insist that the failure to grant opportunity prior to the government order, should result in invalidation of the ban itself. If one keeps in mind the larger public interest sought to be subserved by the impugned government order, and also importantly the circumstance, that the Central Government notification dated 01.07.2022 has resulted in a complete ban on single use cups among other use and throw plastic products, the public interest cannot be ignored.

Therefore, this court holds that though the mandate of the rule calls for pre-decisional hearing, in the peculiar facts of this case, given the efflux of time, the resultant likely injury to the public in the event the notification is interfered with, interests of justice require that such infraction should not result in the invalidation of the notification,” the Apex Court said. 

With regard to woven bags, the Court observed that they were reusable to some extent and the composition of polypropene in their manufacture was customizable. The Appellants argued that a complete ban on them was disproportionate. The State however, defended the ban by arguing that these bags do not biodegrade properly and are indiscriminately disposed and cause littering, damaging ground water, soil quality, etc.

The Court was of the view that, the ban of woven bags may require more scrutiny, since unlike reinforced papercups, they are reusable, recyclable, and capable of some level of biodegradation (based on their composition). The Court also observed that no committee had been constituted to look into the environmental impact of the product more closely.

“Given that the amended 2016 Rules now allow non-woven bags above 60 GSM to be manufactured and used, i.e., the Centre has found a way to regulate it, rather than ban it – there is some merit in the appellant’s contention regarding disproportionality. If a less onerous restriction on the appellant’s Article 19(6) right is possible, it must be favoured. In light of the developments in terms of the amendment to the 2016 Rules, this court is of the considered opinion that it would be appropriate, and just, to remand the question of including non-woven bags within the single use plastic products ban, back to the TNPCB for consideration,” the Apex Court directed.

Case Title: Tamil Nadu And Puducherry Paper Cup Manufactures Association V. State Of Tamil Nadu, Civil Appeal No. 8536 Of 2022

Citation: 2023 LiveLaw (SC) 923

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