In reality, there is nothing new about India’s latest attempts to ban plastics. Despite the recent media headlines from Maharashtra (see Asiaphile, August 2018), the Indian government has been attempting to ban various types of plastics for 20 years.
In September 2009, the National Ministry of Environment and Forests gazetted a 10-page Draft Notification called ‘Plastics (Manufacture, Usage and Waste Management) Rules 2009’, which proposed sweeping changes to the Indian plastics packaging industry covering biodegradable plastics, compostable plastics, plastics bags as well as flexible laminated packaging pouches.
Following Mumbai’s severe flooding in 2005, which was blamed on plastics choking the city’s sewers, the state government imposed a ban on plastics bags. Other states rapidly followed suit with several imposing their own local rules to limit the use of plastics bags.
In October 2009, the Himalayan state of Himachal Pradesh imposed a ban on the production, storage, use, sale and distribution of all types of non-biodegradable bags.
As a direct result, the central government in New Delhi issued the September ‘Draft Notification Plastics (Manufacture, Usage and Waste Management) Rules 2009’.
The plastics industry then appealed against these bans and took legal action by filing a complaint to the Supreme Court in New Delhi.
The court deliberated on the complaint, determined that while it was within their jurisdiction the issues were of a specialist nature and directed Justice Copra to establish a Judicial Committee and report back.
In particular, certain sections of the 2009 regulation prompted the Indian plastics sector complaint: ‘No person shall manufacture, stock, distribute or sell non-recyclable laminated plastics or metallic pouches, multilayered packagings (sic) and non-recyclable plastics’.
If implemented in that form, it threatened to destroy the plastics packaging sector. According to the All India Plastic Manufacturers Association, the impact would be that more than 1,000 factories would be forced to shut down, with the loss of more than 100,000 jobs.
Pointing out the inconsistencies in the Ministry draft regulation to Plastics in Packaging (see Asiaphile, December 2009), Amit Banga, chief executive of India’s largest manufacturer of plastics bags, SB Packagings, explained that there is some uncertainty about the rules: “Theoretically it bans laminated pouches made of layers of different raw materials, which means PET and PE laminates, threatening the staple material of our flexible packaging industry.”
He went on to explain that the rules also advocate that laminates be made of BOPP/BOPP and PE/PE. “The only conceivable response to this will be that the regulations will be contested through the courts,” he added.
And that is precisely what happened. Appeals by industry were immediately filed in the regional courts of states including Maharashtra, Rajistan, Kerala and West Bengal, all of which were found against the plaintiffs and in favour of the new regulations.
Court orders government to act
The court’s response was to issue a Supreme Court Order on the central government to implement plastics packaging regulations by March 2011. In a statement accompanying the new regulations Minister for Environment and Forests Jairam Ramesh said: “It is impractical and undesirable to impose a blanket ban on the use of plastics all over the country. The real challenge is to improve municipal solid waste management systems.
“In addition to the privatisation and mechanisation of the solid waste management systems, we must be sensitive to the needs and concerns of the lakhs [thousands] of people involved in the informal sector.”
Unlike the earlier effort, the new regulations took a more measured approach.
National Green Tribunal
Following the massive skirmish surrounding the Indian government’s plan to ban all forms of plastics packaging, the various government agencies responsible for the proposed national regulations appear to have got themselves into a bit of a muddle.
The National Green Tribunal, the judicial body set up by government in 2010 to adjudicate on environmental matters, provide speedy environmental justice and help reduce the volume of litigation in the higher courts, ridiculed government agencies for failing to come up with a study on plastics packaging and the generation of waste in support of the petition before the Tribunal to ban plastics packaging in India completely.
In a ruling, Justice Swatanter Kumar said; “It appears that none of the concerned ministries are prepared to take a decision which, according to them, at one time, was the need of the hour in the larger public interest.
“We direct all the parties before us, such as the Ministry of Health and MoEF (Ministry of Environment and Forests), CPCB and the Board under the Drugs Act and all the other respondents, stakeholders, Food Safety and Standards Authority of India and all the private stakeholders to place a note (afidavit) before the bench.”
Justice Kumar was responding to the counsel for Ministry for Environment and Forest (MoEF), which had filed an affidavit essentially saying that the ministry deliberated over various aspects of PET bottle packaging for food, food products, beverages and pharmaceuticals, and concluded that there was no conclusive data available to substantiate any claim, and that more scientific study was required on the use of plastics, packaging and the generation of municipal waste.
Justice Kumar was having no truck with such bureaucratic gerrymandering: “You (MoEF) are a responsible ministry. You can’t keep the people hanging in the air. People need to know whether its use is harmful or not. If they can’t use plastics, then educate them how to use other alternatives.”
He also had a few harsh words for the MoEF’s joint director, who presented the affidavit to the bench, saying that “a matter of national importance cannot be handled by an officer of such level”, indicating that the Tribunal had expected that the matter should have been dealt with at a higher level.
The original petition filed by NGO Him Jagriti Uttaranchal Welfare Society sought an injunction from the Tribunal for restrictions to be imposed on the use of plastics bottle and multi-layered plastics packages or PET bottles, and a specific ban on the PET packaging of carbonated soft drinks.
The NGO’s affidavit contended that ‘certain pharmaceutical preparations packaged in PET bottles clearly presented the presence of chromium, antimony, lead, and other substances when tested at room temperature’. The action was finally found to have no merit and was struck down after bouncing around the courts for a couple of years.
The current ‘new’ Maharashtra regulations have now opened the door to an entirely new range of legal action, claims and counter-claims. It is a saga that will run and run, and we’ll be there every step of the way.