The Kerala High Court noted that Section 23 of the Environment Protection Act of 1986 empowers Central Government to delegate its powers and functions but the rule-making power cannot be delegated. Therefore, when the minimum standard in GSM has already been prescribed by the Central Government, then the State Government under the garb of delegated power cannot prescribe a different standard that negates the rules framed by the Central Government.
It was expounded that the ban on non-woven bags of 60 GSM and above by the State of Kerala, therefore, would be discriminatory in nature. The Kerala High Court held that the inclusion of non-woven bags in the list of banned single-use plastic items by the State Government of Kerala was illegal and arbitrary. Accordingly, the ban was set aside.
Brief Facts:
The present petitions were preferred by the Petitioners who are engaged in the production of non-woven bags and are members of the registered association of the manufacturers of non-woven bags in Kerala against Respondent No.2 who vide notification has included non-woven bags in the list of prohibited items.
Contentions of the Petitioners:
It was submitted that many Government agencies have approved non-woven bags as food-grade items, and it has even been recognized by the Ministry of Textiles. An expert committee was constituted by the Government to study the usage of plastic in Kerala. As per the study, the sole reason for pollution was plastic litter. It was reported by the committee that non-woven fabrics are made from fiber-grade textile polymers and propylene making them 100% usable and reusable.
It was argued that the State of Kerala issued a letter concerning the banning of single-use plastic products and included non-woven bags in it. The ban was imposed without making any distinction based on the GSM of non-woven bags.
It was contended that the Central Government has rules for 60 GSM and that imposing a complete ban by the State Government is unsustainable. The ban can only be imposed on non-biodegradable woven bags. By imposing the ban, the fundamental rights of the Petitioners have been violated under Articles 19 and 21 of the Constitution of India.
Contentions of the Respondents:
It was submitted that the State Government has ample powers to address the regulatory vacuum or to meet exigencies. The Central Government has prohibited the use of non-woven bags below 60 GSM and the State Government will not be precluded from invoking powers under the Environment Protection Act of 1986.
It was argued that the rigour of the Central Government has not been diluted and further, the extent of the rigour can be determined by the State Government.
Observations of the Court:
It was noted that Section 23 of the Environment Protection Act of 1986 empowers Central Government to delegate its powers and functions but the rule-making power cannot be delegated. Therefore, when the minimum standard in GSM has already been prescribed by the Central Government, then the State Government under the garb of delegated power cannot prescribe a different standard that negates the rules framed by the Central Government.
The ban on non-woven bags of 60 GSM and above by the State of Kerala, therefore, would be discriminatory in nature. The Bench further noted that even though the State Boards have the power to specify robust standards for relevant parameters after recording reasons for the same, the notification prescribing stringent standards for non-woven bags did not provide sufficient reasons and hence, cannot be said to be sustainable.
The decision of the Court:
Based on the above-mentioned reasons, the Kerala High Court held that the inclusion of non-woven bags in the list of banned single-use plastic items by the State Government of Kerala was illegal and arbitrary. Accordingly, the ban was set aside.
Case Title: Nibu Kasim & Ors. V. Union of India & Ors. And M/s. Go Green Bags v. Unions of India & Ors.
Coram: Hon’ble Mr. Justice N. Nagaresh
Case No: WP(C) Nos. 23089 of 2022 and 24165 of 2022
Advocates for Petitioners: Advs. T.K. Rajeshkumar, Manoj V George, T.N. Bindu, Aparna Somarajan, Aswin K.R., Mathews Benny, Keerthana. V, Thushara Paily, P.N. Santhosh, K.P. Geetha Mani, Sudha N.K.
Advocates for Respondents: Advs. Sri. S. Mani, Sri.T. Naveen, Sri. N. Manoj Kumar, Sri. P.G. Pramod, K.K. Seethakumar
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