Supreme Court Upholds Ban on Single-Use Plastics, Remands Non-Woven Bag Issue: Tamil Nadu Paper Cup vs. State of Tamil Nadu (20 October 2023)

Introduction

Date of the Judgment: 20 October 2023
Citation: 2023 INSC 952
Judges: S. Ravindra Bhat, J. and Pamidighantam Sri Narasimha, J. (authored by S. Ravindra Bhat, J.)

Can a state government impose a blanket ban on certain types of plastics, even if some are claimed to be recyclable or reusable? The Supreme Court of India recently addressed this question, examining the validity of a Tamil Nadu government order banning single-use plastics. This judgment delves into the balance between environmental protection and the rights of businesses, particularly those in the MSME sector.

The Supreme Court considered appeals against a Madras High Court judgment that upheld the Tamil Nadu government’s ban on the manufacture, storage, supply, transport, sale, distribution, and use of certain single-use plastics. The appellants, representing manufacturers of reinforced paper cups and non-woven plastic bags, argued that their products were either recyclable or reusable and should not be included in the ban. The bench comprised Justices S. Ravindra Bhat and Pamidighantam Sri Narasimha, with the opinion authored by Justice S. Ravindra Bhat.

Case Background

The Environment and Forest Department of the Government of Tamil Nadu issued a Government Order on 25 June 2018, under Section 5 of the Environment Protection Act, 1986 (EPA), banning the manufacture, storage, supply, transport, sale, distribution, and use of “use and throwaway plastics” effective from 1 January 2019. This order included items like plastic carry bags, plastic flags, plastic sheets used for food wrapping, plastic plates, plastic-coated teacups, plastic tumblers, water pouches, and plastic straws, regardless of thickness. Initially, non-woven bags were not explicitly mentioned but were later included through a clarification on 8 December 2018.

The order provided exemptions for plastic carry bags produced exclusively for export, plastic bags used as integral packaging at manufacturing units, plastic used in forestry and horticulture nurseries, plastic for packing dairy products, oil, medicine, and medical equipment, and carry bags made of compostable plastics. A Steering Committee was formed to monitor the implementation of the ban.

The paper cup association made a representation on 5 September 2018, to exclude them from the ban. An Expert Committee was formed on 25 September 2018, which concluded that the LDPE coating made the cups non-biodegradable but recyclable. The association’s representation was rejected on 8 December 2018. Similarly, the non-woven bag association’s representations were also rejected on 8 December 2018, with the clarification that such bags were banned because they are made of polypropylene and do not degrade easily.

Aggrieved by the ban, the paper cup association challenged the notification before the National Green Tribunal (NGT), which was dismissed on the grounds of maintainability. Subsequently, the appellants approached the High Court, citing violations of Articles 14 and 19(1)(g) of the Constitution of India.

Timeline

Course of Proceedings

The appellants initially challenged the ban before the National Green Tribunal (NGT), which dismissed their plea on the grounds of maintainability. Subsequently, they filed writ petitions in the Madras High Court, arguing that the ban violated their fundamental rights under Articles 14 and 19(1)(g) of the Constitution. The High Court dismissed these petitions, agreeing with other courts that the State had the competence to pass such orders under Section 5 of the EPA. The High Court also held that non-woven bags were non-biodegradable and posed a risk of pathogenic transmission and that paper cups fell within the definition of ‘one time use and throw’ plastics. The High Court deferred to the expert opinions, noting that it was not within their expertise to determine the rival contentions of the parties.

Legal Framework

The Supreme Court examined the following key legal provisions:

• Section 5 of the Environment Protection Act, 1986 (EPA): This section empowers the Central Government to issue directions, including the closure, prohibition, or regulation of any industry, operation, or process, to protect the environment. The power to issue directions under this section includes the power to direct the closure, prohibition or regulation of any industry, operation or process; or stoppage or regulation of the supply of electricity or water or any other service. The Central Government delegated this power to the states, including Tamil Nadu, through a notification dated 10 February 1988.
• Rule 4 of the Environment (Protection) Rules, 1986: This rule outlines the procedure for issuing directions under Section 5 of the EPA. It mandates that a copy of the proposed direction must be served to the affected party, who should be given at least 15 days to file objections. The Central Government must then consider these objections before confirming, modifying, or deciding against the proposed direction. However, the rule also provides an exception for situations where there is a likelihood of grave injury to the environment, allowing directions to be issued without prior notice.
• Plastic Waste Management Rules, 2016: These rules define ‘plastics’ as materials containing high polymers like polyethylene terephthalate, high-density polyethylene, vinyl, low-density polyethylene, polypropylene, polystyrene resins, and multi-materials. ‘Compostable plastics’ are defined as those undergoing degradation by biological processes during composting, yielding CO2, water, inorganic compounds, and biomass, without leaving toxic residue.
• Plastic Waste Management (Amendment) Rules, 2021: These rules introduced definitions for ‘non-woven plastic bag’ as a bag made of plastic sheet or web structured fabric of entangled plastic fibers or filaments, and ‘single-use plastic commodity’ as a plastic item intended to be used once before disposal or recycling. They also regulated the manufacture of non-woven plastic bags, specifying a minimum of 60 Gram Per Square Meter (GSM) effective from 30 September 2021.
• Plastic Waste Management (Second Amendment) Rules, 2022: These rules defined ‘biodegradable plastics’ as plastics that undergo degradation by biological processes under ambient conditions without leaving microplastics or toxic residue, adhering to standards set by the Bureau of Indian Standards and certified by the Central Pollution Control Board.

Arguments

Appellants’ Arguments:

• Paper Cup Association:
  • Eco-Friendly Alternative: Reinforced paper cups are an eco-friendly alternative to plastic cups, composed of 94% food-grade paper and only 6% LDPE coating for water resistance. The paper is recyclable and biodegradable after separation from the LDPE, which is also recyclable.
  • Arbitrary Classification: Including paper cups with LDPE coating with other products largely composed of plastic is arbitrary and unjust. The products exempted under the notification are more harmful to the environment.
  • Lack of Scientific Basis: The reports relied upon by the State do not recommend a ban on reinforced paper cups. The IIT Report recommended paper cups as an alternative to plastic cups, and the Expert Committee Report noted that LDPE coating can be separated in paper mills.
  • Non-Compliance with Rules: The State failed to follow the mandatory consultative mechanism under Rule 4 of the Environment (Protection) Rules, 1986, which requires publishing a draft notification and inviting objections before passing the order.
  • Recyclability vs. Degradability: The focus should be on recyclability, not just degradability. The absence of a collection mechanism is the problem, not the product itself. The association is willing to cooperate with authorities to improve the collection mechanism.
  • Economic Impact: The ban has a vast economic impact on the livelihood of 5-6 lakh employees and affects small shopkeepers and MSME enterprises.
• Non-Woven Bag Manufacturer:
  • Reusable and Eco-Friendly: Non-woven bags are made from polypropylene granules, are water and air-permeable, reusable, and recyclable. They do not choke drains and are an eco-friendly alternative to plastic bags.
  • Easy to Recycle: They have a weak chemical structure, are made of a mono-polymer, making them easy to segregate and recycle.
  • Disintegration: They disintegrate on exposure to sunlight and rainfall within 100 days.
  • CIPET Report: The CIPET report proves that non-woven carry bags are 100% eco-friendly.
  • Technical Textile: The Ministry of Textile, Government of India, classifies non-woven carry bag fabric as Technical Textile.
  • Disproportionate Ban: The total ban is unwarranted and disproportionate, causing massive unemployment and rendering machinery useless.
  • No Data on Litter: There is no data to establish that non-woven bags contribute heavily to litter.
  • Discrimination: The government has not banned other products that affect marine life, such as toothpaste and cosmetic items, which is discriminatory.
  • Water Consumption: The consumption of water for the manufacture of jute, paper, and cotton far exceeds the impact of polypropylene.

Respondents’ Arguments:

• State of Tamil Nadu:
  • Legislative Competence: The State Government has the legislative competence to issue the ban under Section 5 of the EPA, which was delegated to them by the Central Government.
  • No Repugnancy: There is no repugnancy between the government order and the 2016 Rules as they operate in distinct and independent fields.
  • Right to Clean Environment: The right to a clean and hygienic environment under Article 21 of the Constitution trumps the commercial interests of the appellants.
  • Public Trust Doctrine: The doctrine of public trust supports the State’s action to protect the environment.
  • Opportunity to be Heard: The appellants’ representations were considered, and they were given ample opportunity to be heard. Strict compliance with Rule 4 of the 1986 Rules was not warranted.
  • Non-Woven Bags: Non-woven bags are made of polypropylene, a synthetic plastic that does not easily degrade. They break down into microplastics, which are harmful to the environment.
  • Expert Data: The ban is backed by expert data from IIT Madras, the Expert Committee, and CIPET.
  • Indiscriminate Disposal: The ban is justified due to the indiscriminate disposal of single-use plastics, making it impossible to effectively collect, segregate, and recycle them.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issues addressed were:

1. Whether the ban imposed by the Tamil Nadu government on single-use plastics, including reinforced paper cups and non-woven bags, is legally valid under Section 5 of the Environment Protection Act, 1986.
2. Whether the State Government followed the procedure laid down in Rule 4 of the Environment (Protection) Rules, 1986, while issuing the ban order.
3. Whether the inclusion of reinforced paper cups and non-woven bags in the ban was justified based on scientific evidence and principles of proportionality.
4. Whether the ban on non-woven bags was justified considering the amendments to the Plastic Waste Management Rules, 2016.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Andhra Pradesh Pollution Control Board v. M.V. Nayudu [(2001) 2 SCC 62] – The court followed this authority to hold that the State had the competence to pass orders under Section 5 of the EPA.
• Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. [(2011) 1 SCC 640] – The court followed this authority to hold that judicial review was limited in matters of policy.
• Secretary and Curator, Victoria Memorial Hall v. Howra Ganatantrik Nagrik Samity and others [(2010) 3 SCC 732] – The court followed this authority to hold that deference had to be paid to the decision of experts.
• Basavaiah (Dr) v. Dr. H.L. Ramesh and Ors. [(2010) 8 SCC 372] – The court followed this authority to hold that deference had to be paid to the decision of experts.
• Cellular Operators Association of India & Ors., v. TRAI [(2016) 7 SCC 703] – The court cited this authority to highlight the mandatory requirement of prior consultation before issuing delegated legislation.
• M.C. Mehta v. Union of India [(2004) 12 SCC 118] – The court cited this authority to highlight the application of the test of the reasonable person to balance development and environment.
• M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] – The court cited this authority to highlight the public trust doctrine.
• Association for Environment Protection v. State of Kerala [(2013) 7 SCC 226] – The court cited this authority to highlight the public trust doctrine.
• Fomento Resorts and Hotels Ltd. v. Minguel Martins [(2009) 3 SCC 571] – The court cited this authority to highlight the public trust doctrine.
• M.I. Builders (P) Ltd. v. Radhyen Shyam Sahu [(1999) 6 SCC 464] – The court cited this authority to highlight the public trust doctrine.
• Liberty Oil Mills v. Union of India [(1984) 3 SCC 465] – The court cited this authority to highlight that post-decisional hearing can be permitted in emergencies.
• Dharampal Satyapal Ltd. v. CCE [(2015) 8 SCC 519] – The court cited this authority to highlight that the principles of natural justice cannot be placed in a straitjacket.
• Karnataka SRTC v. S.G. Kotturappa [(2005) 3 SCC 409] – The court cited this authority to highlight that the principles of natural justice cannot be placed in a straitjacket.
• P.P. Agrawal v. State Bank of India [(2006) 8 SCC 776] – The court cited this authority to highlight that the principles of natural justice cannot be placed in a straitjacket.
• Goodwill Plastic Industries v. Union Territory of Chandigarh [2013 SCC Online NGT 71] – The court cited this authority to highlight that there was no repugnancy between government order and the 2016 Rules.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, balancing environmental concerns with the rights of businesses. The Court acknowledged the State’s legislative competence to impose bans under the EPA and the need to protect the environment. However, it also recognized the importance of procedural fairness and the potential for less restrictive measures. The court emphasized the scientific basis for the ban on reinforced paper cups and the need to address the indiscriminate disposal of single-use plastics. The court also took into account the amendments to the 2016 Rules, which now regulate non-woven bags rather than banning them.

Fact:Law Ratio

The Court’s reasoning was primarily driven by legal principles, particularly the interpretation of the EPA and the Rules, as well as the balance between environmental protection and business rights.

“That the State has the legislative competence to impose a ban – of the kind contained in the government order (one which may have the effect of affecting industries even) – in exercise of its power under Section 5 of the EPA, is borne out from a reading of the relevant provisions.”

“The question, however, is of ‘recyclability’ instead. That paper and LDPE coating can be separated in paper mills, is not in contention; the absence of a collection mechanism was the problem for which a total ban was a disproportionate solution.”

“Giventhe above discussion, this Court is of the opinion that the issue relating to non-woven bags requires a re-look by the TNPCB, in view of the amended rules. The TNPCB is therefore directed to consider the matter afresh, and pass appropriate orders.”

Ratio Decidendi

The Supreme Court’s ratio decidendi can be summarized as follows:

• State’s Competence: The State Government has the legislative competence to issue orders under Section 5 of the Environment Protection Act, 1986, to protect the environment. This power is delegated by the Central Government and is valid.
• Procedural Fairness: While a pre-decisional hearing is required under Rule 4 of the Environment (Protection) Rules, 1986, a failure to provide it does not automatically invalidate the order, especially when the order is in the larger public interest.
• Ban on Reinforced Paper Cups: The ban on reinforced paper cups is valid, as they are considered non-biodegradable and difficult to recycle, and the State’s policy decision is justified.
• Remand on Non-Woven Bags: The issue of non-woven bags is remanded back to the Tamil Nadu Pollution Control Board (TNPCB) for reconsideration, given the amendments to the Plastic Waste Management Rules, 2016, which now permit the manufacture of non-woven bags above 60 GSM.
• Balance of Interests: The Court emphasized the need to balance environmental protection with the rights of businesses, particularly MSMEs, and to explore less restrictive measures where possible.

Obiter Dicta

The Supreme Court made several observations that, while not essential to the final judgment, offer valuable insights:

• Importance of Expert Opinions: The Court emphasized the need to give due weight to expert opinions in matters of environmental policy and regulation.
• Public Trust Doctrine: The Court reiterated the significance of the public trust doctrine, which obligates the State to protect the environment for the benefit of the public.
• Balancing Development and Environment: The Court stressed the importance of balancing economic development with environmental protection, using the test of the reasonable person.
• Recyclability vs. Degradability: The Court noted that the focus should be on recyclability, not just degradability, and that the absence of a collection mechanism is a problem that needs to be addressed.
• Less Restrictive Measures: The Court suggested that less restrictive measures should be explored where possible, rather than resorting to outright bans, especially when alternatives exist.
• Economic Impact: The Court acknowledged the economic impact of the ban on businesses and emphasized the need to consider the livelihood of workers and small enterprises.
• Principles of Natural Justice: The Court noted that principles of natural justice cannot be placed in a straitjacket, and post-decisional hearing can be permitted in emergencies.

Flowchart of the Decision Making Process

Conclusion

The Supreme Court’s judgment in Tamil Nadu Paper Cup vs. State of Tamil Nadu (2023) provides a significant analysis of the balance between environmental protection and the rights of businesses. The Court upheld the state’s competence to impose bans on single-use plastics under the Environment Protection Act, emphasizing the importance of protecting the environment. However, it also highlighted the need for procedural fairness and the potential for less restrictive measures, particularly in light of the amendments to the Plastic Waste Management Rules. The decision to remand the non-woven bag issue back to the TNPCB reflects a nuanced approach, recognizing the need for a re-evaluation based on the updated regulations.

The judgment underscores the need for a comprehensive approach to plastic waste management, which includes not only bans but also effective collection and recycling mechanisms. It also highlights the importance of considering the economic impact of environmental regulations on small businesses and workers. The ruling serves as a reminder that environmental protection is a shared responsibility and requires a collaborative effort from all stakeholders.