Ker HC | Perception that non-compostable plastic are being passed off as compostable ones is not backed by research; HC uplifts the ban on compostable plastic bags

Kerala High Court: A.K. Jaya Sankaran Nambiar, J., addressed an interesting case challenging the legality of government Order that banned the use of Compostable plastic carry bags.

Facts in Brief

The State, by invoking powers delegated to it by Central government under Environment Protection Act issued had an order banning the manufacture, stocking and sale of single-use plastic/one-time-use plastic in the state of Kerala with effect from 01-01-2020. While doing so, articles made from compostable plastic were initially excluded from the purview of the ban order. However, through subsequent orders, the state had brought certain types of carry bags made from compostable plastic within the purview of the ban, with the view that a huge number of carry bags made from non-compostable plastic were being passed off as compostable ones.

The petitioners, who were engaged either in the manufacture or distribution or both, of ‘compostable carry bags’, had necessary licenses and consents under various regulatory statutes for the manufacture and/or distribution of ‘compostable plastic carry bags’ as defined under the Plastic Waste Management Rules, 2016 framed by  Central government under Environment Protection Act, 1986. The question before the Court was,

Whether this Court would be justified in invoking its powers of judicial review under Article 226 of our Constitution, to interfere with the policy decision of the State Government?

Contours of Judicial Review

The Court, while tracing the scope of judicial review expressed that in England it was fairly well established that judicial review was nothing more than a means adopted by courts to uphold the rule of law in a modern-day democratic republic. Judicial review is no longer seen based solely on principles of statutory interpretation, but on the application of some general principles of good administration to the exercise of power, irrespective of the source of that power.

While exercising the power of judicial review the court substitutes its view for that of the decision-maker but only where the court finds that such a course is necessary to uphold the rule of law, or where the decision of the public authority is grossly disproportionate when compared to the object sought to be achieved through the decision concerned. The Bench expressed,

“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.”

 Reliance was placed by the Court on Huang v Secretary of State for the Home Department, [2007] 2 WLR 581, wherein a three-limb test was propounded by the Privy Council to be applied when deciding whether an interference with a particular human right is proportionate:

  • The objective sought to be achieved by the interference must be sufficiently important to justify limiting the right;
  • The measures designed to achieve the objective must be rationally connected to it; and
  • The means used to impair the right must be no more than necessary to accomplish the objective.

Discussions and Findings:

Regarding compostable plastic carry bags, which were accepted as legitimate and non-polluting substitutes for single-use plastic carry bags, being brought under the purview of the ban order, the Bench reached to the findings that the said decision was taken solely on the ground that, in the perception of government, there was a flood of fake compostable carry bags entering the markets.

The Bench opined that such perception, might be justified especially when the restrictions were imposed with a view to subserve the fundamental right to clean environment of the public at large- a right relatable to the fundamental right to life under Article 21 of the Constitution. But,

“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 impugned order was held to be in teeth of the fundamental right of the petitioners under Article 19 (1)(g) of the Constitution, i.e., right to trade and deal in compostable plastic carry bags, a non-polluting article, by the dealing in which the objects of the EP Act and Rules were not frustrated.

Hence, 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 could not be legally sustained. Considering the above, the impugned order was quashed while leaving it open to the state to decide upon an appropriate policy measure, after gathering data/material to support the same. [Vasundhara Menon v. Union of India, 2021 SCC OnLine Ker 865, decided on 16-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

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