Kerala High Court Quashes Ban On Compostable Plastic Carry Bags

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 policy decision of the Government is challenged on the ground that it violates the fundamental rights under the Constitution, the Court has to examine the decision-making process.

However, undertaken when the infringement alleged is of a constitutional right, the Court shall proceed to review the merits of the Policy. "In that event, the decision of the Government will be subjected to a further scrutiny, by applying the tests of proportionality, to see whether the decision is indeed justified on the facts of the case," it said.

On this note, the Court proceeded to examine the merits of the instant decision prohibiting dealings in compostable plastic.

It noted, that the State had conceded that there was no data to show use of fake plastics in the name of compostable ones, and the change in policy as effected only on the basis of views expressed by the task force.

Taking exception to this, the Single Judge observed,

"It is my view that such perception of the Government, without anything more, might have justified the imposition of restrictions on 'ordinary rights' of persons, whether statutory or under common law, especially when the restrictions are seen imposed with a view to sub serve the fundamental right to clean environment of the public at large- a right relatable to the fundamental right to life under Article 21 of our Constitution. It will not, however, suffice to justify restrictions on the 'fundamental rights' of a person."

The Bench therefore quashed the impugned order with liberty to the State Government to decide upon an appropriate policy measure, after gathering data/material to support the same.

Case Title: Dr. Vasundhara Menon & Ors. v. Union of India & Ors.

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