HC quashes ban on non-woven plastic bags in Kerala

Kochi: The Kerala High Court on Tuesday quashed the Kerala government order banning non-woven plastic bags in the state. The court observed that only the Central government had the right to impose a ban to this effect.

It held that the inclusion of non-woven bags of 60GSM and above in the list of banned single use plastic items by government orders without regard to the GSM standards, and in violation of the provisions of the Plastic Waste Management Rules, 2016 as arbitrary and illegal.

Justice N Nagaresh, passed the order in two writ petitions filed before it challenging the ban on the non-woven bags.

A ban on plastic came into effect in Kerala on January 1, 2020.

This ban was applicable to 11 types of plastic such as plastic carry bags (regardless of thickness), plastic sheets (table spread), thermocol, styrofoam plates, cups, decorations, single-use plastic cups, plates, spoons, forks, straws, dishes, stirrer, plastic-coated paper cups, plates, paper bowls, coated paper bags, non-woven bags, plastic flags, plastic bunting, plastic drinking pouches, non-branded plastic juice packets, pet bottles, plastic garbage bags, PVC flux products and plastic packets.

The court in this case noted that while Section 23 of the Environment Protection Act, 1986 provided that the Central government is competent to delegate its powers and functions under the Act, 1986, the rule making power of the Central government cannot be delegated.

"When, in exercise of the rule making powers under Section 25, the Central government has prescribed minimum standard in GSM for manufacturing of non-woven bags, then under any delegated power the State government cannot prescribe a different standard which would negate the rules framed by the Central Government. If any State government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate", it observed in this regard.

The court further noted that while several States such as Odisha, Puducherry, Haryana, Delhi, and so on, had issued orders banning single use plastic, such ban would not extend to non-woven bags of 60 GSM and above.

"Therefore, the total prohibition of manufacturing of non-woven bags irrespective of the GSM standard of the bags in Kerala, would be discriminatory also", it observed.

The petitioners in the first writ petition are members of registered association of the manufacturers of non-woven bags in Kerala, while the petitioner in the second writ petition is a Proprietor engaged in the production of non-woven bags. They were aggrieved by two government orders dated December 17, 2019, and January 27, 2020, whereby non-woven bags had been included in the list of 'prohibited items' by the Government.

The court in this case noted that while Section 23 of the Act, 1986, enabled the Central government to delegate, the rule-making power under Section 25 is conferred on the Central government alone.

It was on this basis that it arrived at its finding that if any State government issues executive instructions contrary to the Rules framed by the Central government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate.

The court further added that the "eligibility of the petitioners to manufacture non-woven bags shall be governed by the Plastic Waste Management Rules, 2016 as amended by the Plastic Waste Management (Amendment) Rules, 2021", while disposing the writ petitions.

(With inputs from LiveLaw.)