Point of Law: Fundamental right to clean environment of public at large- a right relatable to fundamental right to life under Article 21 of Constitution.

JUDGMENT :

A.K. JAYASANKARAN NAMBIAR, J.

“The utility of plastic in contemporary society is at a crossroads where the perceived benefit of single use, throw away products and packaging is outweighed by the true cost of persistent waste and fragmented micro plastics in terrestrial and marine ecosystems.”

Marcus Eriksen [The Plastisphere - The Making of a Plasticised World; Tulane Environmental Law Journal, Summer 2014, Vol. 27, No. 2, Plastic Pollution (Summer, 2014), pp.153-163]

1. The Facts in Brief: Responding to calls from interest groups that sought a ban on the use of single use plastic articles, the State Government issued Orders, by invoking the power delegated to it by the Central Government under the Environment Protection Act, 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, and with a view to encourage the use of non-polluting substitutes, articles made from compostable plastic were initially excluded from the purview of the ban order. Through subsequent orders, however, the State Government brought certain types of carry bags made from compostable plastic also within the purview of the ban. The trigger for the changed stand of the Government is stated to be the report received by it from a technical task force that was constituted by it, 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 petitioners in these writ petitions being engaged either in the manufacture or distribution or both, of ‘compostable carry bags’ in the State, impugn the Government Orders that include their products within the purview of the ban on single-use/one-time use plastic.

2. The facts in each of these writ petitions are similar. The petitioners have the necessary licenses and consents under the various regulatory statutes for the manufacture and/or distribution of ‘compostable plastic carry bags’ as defined under the Plastic Waste Management Rules, 2016 (hereinafter referred to as ‘the PWM Rules’ for brevity) framed by the Central Government under the Environment Protection Act, 1986 (hereinafter referred to as ‘the E.P. Act’ for brevity). During the pendency of the writ petitions before this Court, and pursuant to interim orders issued therein, the products dealt with by the petitioners were tested by the statutory authorities for conformity with the specifications for ‘compostable plastic carry bags’ and the reports made available before this Court suggest that they do. Thus, the only issue that arises for consideration in these writ petitions is the legality of the impugned Government Orders that include the products dealt with by the petitioners within the purview of the ban on single-use plastic.

The Arguments of Counsel:

3. The arguments advanced on behalf of the petitioners by their learned counsel Sri. Jawahar Jose, Sri. Praveen Hariharan, Sri. Kodoth Pushparaj, briefly stated, are as follows:

(i) The State Government, while issuing the impugned Government Orders has acted in terms of Section 5 of the E.P. Act, pursuant to the power delegated to it by the Central Government under Section 23 of the said Act. The said power under Section 5 of the Act, however, cannot be exercised to prohibit the use of an item that is otherwise permitted for use under the PWM Rules. The contention, in other words, is that the delegated power to issue directions cannot be exercised to prohibit the use of an item whose use is not prohibited by the Central Government through the issuance of any such direction.

(ii) The 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 thei