Page 32 - Plastics News February 2021

FeAtures

Kerala High Court Quashes Ban on Compostable Plastic Carry Bags

The Single Bench maintained it cannot act on mere conjectures and surmises, unsubstantiated by empirical
evidence, and thus Government order is not legally sustainable.

he Kerala High Court has as it imposed restrictions on the fundamental right of the
Tquashed an order of the State petitioners under Article 19 (1)(g) of the Constitution, to
Government, prohibiting the trade and deal in compostable plastic carry bags- which
manufacture, stocking and sale itself a non-polluting article.
of compostable plastic bags the The Kerala Government, vide order dated January 1,
state. Allowing a batch of writ 2020, prohibited the manufacture, stocking and sale
petition challenging the state of single-use plastic/one-time use plastic in the State.
government decision to include The order was issued by invoking the power delegated
compostable plastic carry bags to it by the Central Government under the Environment
within the ban on single-use Protection Act. Subsequently, on the basis of a report
plastic, the High Court said "the submitted by a Technical Task Force which suggested that
decision of the Government to there are growing number of instances where carry bags
include compostable plastic carry bags within the purview made from non-compostable plastic are being passed off
of the ban order in respect of single-use plastic carry bags as compostable ones, he Government included certain
within the purview of the ban order in respect of single- types of carry bags made from compostable plastic also
use plastic articles cannot be legally sustained"
within the purview of the ban.
A Single Bench of Justice AK Jayasankaran Nambiar "under normal circumstances, the lack of expertise in
noted that the impugned order was passed on a mere judges is seen as a reason for courts not substituting its
conjecture that non-compostable plastics are being passed views for those of the primary decision maker. However,
off as compostable ones, without any cogent material or when constitutional rights are at stake, the overriding
empirical data to back the same. It thus allowed a batch of public interest involved in the protection of such rights
petitions filed by various persons engaged in the business justifies the courts' resort to a heightened scrutiny and
of compostable plastic, and held that the Government balancing of views through the application of the doctrine
order is not legally sustainable. To impose restrictions on of proportionality." The Bench added that ordinarily, when
fundamental rights, the State Government would need to a policy decision of the Government is challenged on
have cogent material that would support an inference of the ground that it violates the fundamental rights under
overwhelming use of fake composite plastic carry bags in the Constitution, the Court has to examine the decision-
the State. It cannot act on mere conjectures and surmises, making process.
unsubstantiated by empirical evidence," the Single Bench
held. It added, However, undertaken when the infringement alleged is of
a constitutional right, the Court shall proceed to review
"A Government decision in that regard has necessarily to the merits of the Policy. "In that event, the decision of
be based on reliable material in the form of empirical the Government will be subjected to a further scrutiny,
data that would clearly suggest the de detection of by applying the tests of proportionality, to see whether
sufficiently large number of cases of fake composite carry the decision is indeed justified on the facts of the case,"
bags entering the markets in the State as would render it said. It also noted that State had conceded that there
it practically impossible for the State to prevent trade in was no data to show use of fake plastics in the name of
such carry bags using the machinery for legal enforcement compostable ones, and the change in policy as effected
at ts command. Only in such event will the Government only on the basis of views expressed by the task force.
be able to justify the curtailment of a fundamental right
to trade/deal n a legitimate and non-polluting alternative The Bench therefore quashed the impugned order with
to single-use plastic carry bags." It further held that the liberty to the State Government to decide upon an
impugned order fails the tests of proportionality, inasmuch appropriate policy measure, after gathering data/material
to support the same.

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