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Dr. Vasundhara Menon, Proprietor, Green Earth Solutions, Ernakulam Others v/s The Union of India, Represented by Its Secretary, Ministry of Environment, Forest & Climate Change, New Delhi & Others

    W.P(C). Nos. 4291 (J), 4493 (J), 4993 (Y), 5107 (K) & 5952 (T) of 2020

    Decided On, 16 February 2021

    At, High Court of Kerala


    For the Petitioner: Jawahar Jose, C.R. Rekhesh Sharma, P. Sanjay, H. Praveen, G. Hariharan, K.S. Smitha, T.T. Shaniba, M.V. Vipindas, D. Amal Dev, Pushparajan Kodoth, K. Jayesh Mohankumar, Vandana Menon, Vimal Vijay, T.R. Reshma, Advocates. For the Respondents: M.A. Vinod, CGC., K.V. Sohan, State Attorney, T.S. Shyam Prasanth, S. Dilip, Govt. Pleaders, T. Naveen, S. Sujin, M. Ajay, Harikrishnan, SC, Chandini G. Nair, Dinesh, CGC., Premlatha K. Nair, Advocate.

Judgment Text

‘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)

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 EP 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:

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:

* The State Government, while issuing the impugned Government Orders has acted in terms of Section 5 of the EP 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.

* 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 their business of distribution of such carry bags merely on account of a finding that there were many instances noticed of fake carry bags being used in the market. The policy decision of the State Government contained in the impugned Government Orders infringes their fundamental rights under Articles 14 and 19 (1)(g) as also their right under Article 301 of the Constitution of India.

* Even while bringing compostable carry bags under the purview of the ban order, the State Government has chosen to keep compostable garbage bags out of the purview of the ban order. Compostable carry bags and garbage bags are identical in their chemical composition and technical specifications and they differ from each other only in their form and size. The selective choice of compostable carry bags alone for inclusion under the ban order therefore lacks any rationale and consequently, the policy decision ought to be seen as irrational.

* The State Government has not produced any material that would suggest that they were possessed of the necessary facts or data that pointed to a proliferation of fake composite carry bags being used in the State. Inasmuch as the ban order has the effect of imposing restrictions on a legitimate business activity of the petitioners, and consequently on their fundamental rights under Article 19 (1)(g) of the Constitution, the doctrine of proportionality would mandate that strong reasons exist for resorting to the imposition of a ban on the products dealt with by the petitioners. It is emphasized that the products dealt with by the petitioners are not inherently unsafe or capable of causing pollution for they have been recognised as permissible substitutes for plastic articles even under the PWM Rules.

2. Responding to the arguments of the learned counsel for the petitioners, the contentions of the learned Government Pleaders Sri.T.S.Shyam Prasanth and Sri.Dilip.S., briefly stated, are as follows:

* In as much as the impugned Government Orders give expression to a policy decision of the State Government, the same ought not to be interfered with by this Court in exercise of its powers under Article 226 of the Constitution of India.

* It is pointed out that the Government only acted on the suggestions of the Task Force constituted by it to address various issues relating to the use of plastic articles in the State. The Task Force had observed that there was a flood of fake compostable alternative material to plastics and the said issue had to be tackled. Inasmuch as the observation was specifically with regard to carry bags, it was thought expedient to include only compostable plastic carry bags within the scope of the ban order while leaving other compostable plastic articles outside it.

* In response to a specific query posed by the Court as regards whether there was any material available with the task force, on the basis of which they inferred that there was a flood of fake compostable alternative materials to plastics being used in the State, it is conceded that there was no such data and the views expressed by the task force were based on their own perception of the alleged problem. It is also conceded that the Government does not have any empirical data as regards tests done on, and consequent detection of, fake compostable carry bags that could have led it to conclude that there was an issue with regard to such fake compostable carry bags.

The Issue:

On a consideration of the rival submissions, I find that the issue that arises for consideration in these cases is whether this Court would be justified in invoking its powers of judicial review under Article 226 of our Constitution, to interfere with the policy decision of the State Government, that finds expression in the impugned Government Orders? A resolution of the said issue, however, calls for an examination of the principles that inform our higher courts while exercising the power of judicial review.

The Contours of Judicial Review:

The true basis of judicial review has been the subject matter of discussion among legal scholars for many years. While under American jurisprudence, even prior to the formal enunciation of a principle in Marbury v. Madison, the court’s power of judicial review was seen as emanating from the larger concept of a fundamental law to which all state action, including legislation, had to conform, in England, where there was no written constitution, the basis for judicial review was often seen located in the concept of Parliamentary sovereignty, and the allied concept of ‘ultra vires’, that frowned upon any exercise of power by a statutory authority that went beyond the mandate of the statute. In more recent times, however, there has been a shift in judicial thinking in England, and it is now fairly well established that judicial review is nothing more than a means adopted by courts to uphold the rule of law in a modern day democratic republic. The many instances where courts have thought it fit to interfere with decisions of non-statutory bodies that have an impact on the rights of citizens, and where the doctrine of ultra vires has no role to play, clearly reveal that the said doctrine is not the sole basis for the exercise, by courts, of the power of judicial review. Judicial review is no longer seen based solely on principles of statutory interpretation, but on the application of some general principles of good administration to the exercise of power, irrespective of the source of that power. (Dawn Oliver, ‘Is the Ultra Vires Rule the Basis of Judicial Review? - 1987 Public Law, 543)

2. Tom Bingham (Tom Bingham, ‘The Rule of Law’, Penguin Books, London, 2011) observes that Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. Judicial review is the tool that the courts use to ensure this standard. Review is an appropriate judicial function since the law is the judges’ stock-in-trade, the field in which they are professionally expert. In the exercise of the power of judicial review, judges do not substitute their view for that of the statutory authority for they often do not have the expertise necessary for taking such a view. They are expected to act only as auditors of legality and nothing more.

3. Under our Constitution, the power of judicial review is traceable to Articles 32 and 226 that confer on the Supreme Court and the High Courts the power to issue prerogative and like writs to protect the citizens from state action that infringes upon their rights. The Constitution being the supreme law of our land, and the rule of law being one of its basic features, the exercise of statutory power has to conform, inter alia, to the requirements of fairness, non-arbitrariness and reasonableness, all of which are integral aspects of the rule of law. Thus, when a litigant approaches a writ court, alleging a breach of his rights – be it a constitutional right, a statutory right or a common law right – by an authority empowered by the State, the court examines the manner in which the decision was arrived at, and in exceptional cases, the decision itself, to see whether it conforms to the requirements mandated by the rule of law.

4. In the context of statutory and common law rights, exercise of the power of judicial review takes the form of examining whether the impugned decision suffers from the vices of illegality, irrationality or procedural impropriety. An aspect of irrationality is highlighted by the test propounded in the Wednesbury case (Associated Provincial Picture Houses v Wednesbury Corporation – (1948) 1 KB 223) of enquiring whether the decision maker took into consideration matters that were relevant to the decision, eschewed matters that were irrelevant therefor, or even if he complied with both of the above, his decision was so unreasonable that no reasonable person possessed of the relevant facts would have arrived at such a decision.

5. In the context of constitutional rights, it has often been found useful for courts to resort to a heightened review whereby the courts examine not only the manner in which the decision was arrived at but also the merits of the decision itself. In a sense, the court substitutes its view for that of the decision maker but only where the court finds that such a course is necessary to uphold the rule of law, or where the decision of the public authority is grossly disproportionate when compared to the object sought to be achieved through the decision concerned. As already noticed above, under normal circumstances, the lack of expertise in judges is seen as a reason for courts not substituting its views for those of the primary decision maker. However, when constitutional rights are at stake, the overriding public interest involved in the protection of such rights justifies the courts’ resort to a heightened scrutiny and balancing of views through the application of the doctrine of proportionality.

6. A three-limb test was propounded by the Privy Council to be applied when deciding whether an interference with a particular human right is proportionate. (De Freitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing – (1999) 1 AC 69 PC 6Huang v Secretary of State for the Home Department – (2007) UKHL 11; R (F & Thompson v Secretary of State for the Home Department – (2010) UKSC 17). The said test has since been followed by the House of Lords, and later by the UK Supreme Court, when considering whether an interference with a Convention right is proportionate6. The three-limb test is as follows:

(i) The objective sought to be achieved by the interference must be sufficiently important to justify limiting the right;

(ii) The measures designed to achieve the objective must be rationally connected to it; and

(iii) The means used to impair the right must be no more than is necessary to accomplish the objective.

7. In Huang (Huang v Secretary of State for the Home Department – (2007) UKHL 11), the House of Lords added a fourth limb to the proportionality test, namely the need to balance the interests of society with those of individuals and groups. This ‘fair balance’ limb of the proportionality test is considered in addition to the three limbs set out before and is not an alternative to them (R (Quila) v Secretary of State for the Home Department – (2011) UKSC 45). Accordingly, the least intrusive means of achieving a particular objective may still be disproportionate if they do not strike a fair balance between the rights of the individual and those of society (R(Samaroo) v Secretary of State for the Home Department – (2001) EWCA Civ. 1139).

8. In our country too, a similar approach has been adopted by the Supreme Court (Modern Dental College and Research Centre & Ors v State of Madhya Pradesh & Ors – 2016 (7) SCC 353), which found that when a law limits a constitutional right, such a limitation would be seen as constitutional only if it was proportional. Further, the law imposing restrictions would be treated as proportional only if it was meant to achieve a proper purpose, and if the measures taken to achieve such a purpose were rationally connected to the purpose, and were necessary. Accordingly, the exercise that has to be undertaken by the courts in judicial review is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and then strive to weigh the competing values and achieve a fair balancing of different interests. Reasonableness of a restriction has also to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations (Mohd.Hanif Quareshi v State of Bihar – AIR 1958 SC 731; BInoy Viswam v Union of India -2017 (7) SCC 59; Anuradha Bhasin & Anr v Union of India & Anr – 2020 (3) SCC 637).

Discussions and Findings:

The above discussion on the scope and ambit of judicial review clearly suggests that when a policy decision of the Government is challenged by a person on the ground that it violates his/her fundamental rights under our Constitution, this Court has to first examine the decision of the Government to see whether there is any flaw in the decision making process. In that exercise, this court would examine whether the relevant statute confers a power on the Government to issue such directions. It would then examine whether there are any factors, such as the non-compliance with the rules of natural justice and fairness that vitiate the exercise of that power by the Government. Thereafter, this Court would examine whether in arriving at the decision, the Government has taken into account relevant facts and eschewed irrelevant facts, and if both, whether the decision can be seen as one that a reasonable person apprised of the facts will arrive at. While the enquiry for the purposes of judicial review would ordinarily end at this stage, and this Court would refrain from making an enquiry as regards the merits of the decision, a primary or merits review would be undertaken when the infringement alleged is of a constitutional right. In that event, the decision of the Government will be subjected to a further scrutiny, by applying the tests of proportionality, to see whether the decision is indeed justified on the facts of the case.

2. On the facts of the instant cases, going by the express provisions of Section 5 read with Section 23 of the EP Act, I do not find merit in the contention of the learned counsel for the petitioners that the State Government does not have the power to issue the impugned Government Orders. The express provisions of the statute clearly and unambiguously suggest otherwise. The petitioners, however, argue that the decisions of the State Government that have the effect of prohibiting their trade in compostable plastic carry bags, infringes their fundamental right under Article 19 (1)(g) of the Constitution. They point out that compostable plastic carry bags, which are accepted as legitimate and non-polluting substitutes for single-use plastic carry bags, by the statutory rules framed by the Central Government under the EP Act, have now been brought under the purview of the ban order solely on the ground that, in the perception of the Government, there is a flood of fake compostable carry bags entering the markets in the State.

3. It is my view that such perception of the Government, without anything more, might have justified the imposition of restrictions on ‘ordinary rights’ of persons, whether statutory or under common law, especially when the restrictions are seen imposed with a view to sub serve the fundamental right to clean environment of the public at large- a right relatable to the fundamental right to life under Article 21 of our Constitution. It will not, however, suffice to justify restrictions on the ‘fundamental rights’ of a person. To impose restrictions on fundamental rights, the State Government would need to have cogent material

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that would support an inference of overwhelming use of fake composite plastic carry bags in the State. It cannot act on mere conjectures and surmises, unsubstantiated by empirical evidence. As already noticed, the restrictions imposed by the orders impugned in these writ petitions is on the fundamental right of the petitioners under Article 19 (1)(g) of our Constitution, to trade and deal in compostable plastic carry bags, itself a non-polluting article, and through the dealing in which the objects of the EP Act and Rules are not frustrated. It follows, therefore, and on an application of the tests of proportionality discussed above, that the decision of the Government to include compostable plastic carry bags within the purview of the ban order in respect of single-use plastic articles cannot be legally sustained. A Government decision in that regard has necessarily to be based on reliable material in the form of empirical data that would clearly suggest the detection of sufficiently large number of cases of fake composite carry bags entering the markets in the State, as would render it practically impossible for the State to prevent trade in such carry bags using the machinery for legal enforcement at its command. Only in such event will the Government be able to justify the curtailment of a fundamental right to trade/deal in a legitimate and non-polluting alternative to single-use plastic carry bags. Admittedly, the State Government does not have any such material. Their files, which were called for during the hearing, apparently do not contain such material; nor was any such material produced before this Court at the time of hearing. Thus, by leaving it open to the State Government to decide upon an appropriate policy measure, after gathering data/material to support the same, these writ petitions are allowed by quashing the impugned Government Orders to the extent they include compostable plastic carry bags also within the purview of the ban on single-use plastic/one-time use plastic in the State of Kerala, and holding that the petitioners shall be entitled to all the consequential reliefs flowing there from. No costs.