Sanjeev Kumar vs State

In this petition the Court is concerned with the serious issue of packaging of non-essential items in non-biodegradable/plastic material. Himachal Pradesh is a State largely nestling in the mountain ranges. Tourism is the major activity which provides employment to a large number of people in the State. Tourists will come to Himachal only if it retains its glory and beauty. If the streams and nullahs are jammed with plastic and other non-biodegradable material then the beauty of the State will come to an end and this will result in loss of tourism.

We have for the last two years been passing orders and trying to coax the Government and its officials to take certain action. There have been some fruitful results but the pace at which things have moved is not to our satisfaction.

On 19.6.2010, we had referred certain issues to a Committee headed by Mrs. Sarojini Ganju Thakur, the then Addl. Chief Secretary (Environment, Science and Technology) to the Government of H.P. and observed as follows:-

We are not oblivious to the fact that due to practical reasons we cannot recommend the total ban on the sale of mustard oil and other edible products in plastic packaging. Our concern is how the use of non biodegradable packaging is either reduced or the same is recycled in such a manner that there is minimum damage to the environment. This can be done by ensuring that the discarded packaging is used for some other purpose such as construction of road as envisaged by the State of Himachal Pradesh.

Keeping in view the aforesaid factors we direct that the Committee headed by Mrs. Sarojini Ganju Thakur, which dealt with the matter on 20.4.2010 shall also consider whether the plastic packaging used for supply of all edible bulk products by the Civil Supplies Corporation to the ration holders can also be collected and utilized by the PWD. There has to be a collective effort by the Civil Supplies Corporation, the ration depots, some of which may fall under the jurisdiction of the Civil Supplies Corporation and some may be private individuals or Cooperative Societies. It is apparent that edible products supplied to the ration card holders are being supplied at rates which are much less than market rates. There is a requirement to sensitize the people who utilize the products sold to them at subsidized rates about the damage caused to the environment and health by such non biodegradable packaging. They should be made aware about this fact so that they voluntarily return the plastic packaging to the Depots or other bodies which may be earmarked by the Committee so that the plastic packaging is not strewn all over the countryside, but is collected and utilized for public purpose i.e. construction of road.

x x x

We also make it clear that the Committee while considering these aspects shall not restrict itself to the goods supplied by the Civil Supplies Corporation. A lot of non bio degradable packaging is used in the packaging of water, milk etc. being sold throughout the State of Himachal Pradesh. Here also the Committee may suggest the means and methods to reduce the use and recycling of non biodegradable packaging so that necessary instructions can be issued to the companies/societies responsible for selling the same.

The Committee may also consider whether in the process of protecting the environment of the State of Himachal Pradesh as far as non essential items are concerned a decision can be taken by the State totally banning the use of non biodegradable packaging and issuing instructions that such items must be packed in biodegradable packaging. There are various items which are consumed by the public which are not essential commodities, such as chips, snacks etc. Not only the environment of the State but the health of the young children who consume most of these items can be protected if the sale of such items is made only in bio degradable packaging even if the same is more expensive. The health of the people and the environment of the State need to be protected even if this means that the consumers have to spend extra for such non essential items. Most of these items are junk food and have no great role to play in the nutritional aspect of the diet of the consumers.

Another issue of concern is that PET (plastic) bottles are being used in large numbers for sale of water. It is the duty of the State to ensure that potable water is provided to all the citizens. The tourists buy packaged water to protect their health. The State may consider setting up vending machines to sell pure and clean water at Tourist Centres so that the plastic bottles which have been purchased can be re-used by the tourists by collecting water in them from the vending machine. In fact the consumers may fill-up their own water bottles obviating the need to buy plastic bottles of water. This will not only ensure that plastic bottles are re-used time and again but will drastically reduce the sale of such bottles. This water can be sold like the juice sold by HPMC.

Thereafter on 17.12.2010 this Court had passed a detailed order after considering the reports of the Committee. We had placed on record our appreciation for certain decision taken by the State. The State has put restrictions on use of polythene bags and has prohibited the use of certain types of polythene bags in the State of Himachal Pradesh. This, as observed by us, is just a small step taken in the direction of preserving the stream, environment and natural beauty of this State. We had thereafter given certain suggestions and though some of our suggestions have been accepted, reservations have been expressed with regard to some suggestions.

There is one burning issue which cannot brook any further delay. We in our earlier orders had time and again asked the State to consider seriously the issue of taking a decision to ban the use of non-biodegradable packaging material for non-essential commodities. The view of the State was that the Government of India has notified the Rules known as Re-cycled Plastics Manufacturer and Usages (Amendment) Rules, 2003 and we had clearly indicated that we do not appreciate the stand of the State since those rules only deal with carry-bags and not with non essential items which are packed in non-biodegradable material. We had observed as follows:-

With regard to our suggestions that matter be considered for taking a decision of banning use of non biodegradable packaging material with regard to non-essential commodities, State has taken a view that Government of India has already notified Rules known as Re-cycled Plastics Manufacturer and Usages (Amendment) Rules, 2003. Now this stand of the State is not appreciable and acceptable. These Rules only deal with carry bags. State has already issued notifications in this regard. The extent and scope of the Rules do not cover the items which we had specifically mentioned in our orders.

We are not unmindful of the fact that, for the present, it may not be possible to have a total ban of use of plastic in packaging material but however, State can certainly take steps to check rampant use of the same within the State of Himachal Pradesh. Definitely, steps can be taken to discourage sale of items packed in plastic and pouches which are not biodegradable. It could definitely take up the matter with the manufacturers for use of biodegradable packaging material. Recently Supreme Court of India banned sale of Gutkas packed in plastic pouches. State is obliged in law to adhere to and comply with such directions.

Just as it is the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes and rivers, it is the fundamental right of every citizen to live in clean, healthy and hygienic environment. The Apex Court in State of M.P. Vs. Kedia Leather and Liquor Ltd. and Others, , has laid down that environmental, ecological, air and water pollution amount to violation of right to life assured by Article 21 of the Constitution. Hygienic environment is an integral facet of healthy life. Right to live with human dignity becomes illusory in the absence of humane and healthy environment. This view has been reiterated in Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association and Others, and M.C. Mehta Vs. Union of India (UOI) and Others,

In Part IV of the Constitution of India it is clearly laid down that State shall endeavour to protect and improve the environment and safeguard forests and wild life of the country.

Further Sections 3 and 3-A of the Act prohibits throwing of any non-biodegradable garbage in drain, ventilation shaft, pipe and fittings which is likely to injure the drainage and sewage system, interfere with the free flow or affect the treatment and disposal of drain and sewage contents and become a cause of nuisance resulting into affecting public health. The Act further empowers the State to impose restrictions or prohibitions on the use of non-biodegradable material within the State of H.P. It also empowers the State to impose restrictions on manufacturers, distributors and other persons, who produce or handle commodities, with respect to type, size, labeling and composition of packaging with respect to its use and disposal. Duty is cast upon the local authorities and bodies for collection of garbage. Similar duty is cast upon the owners and occupiers of the land.

These provisions of law are either being put to disuse or brazenly violated with impunity. Drains are choked and streets are littered with non-biodegradable packaging material. Now implementing agencies cannot keep their eyes shut in checking this menace. Small measures, which are more of cosmetic in nature are not enough. Considering the enormity of the menace, at the ground level effective implementation of the laws/policies is to be carried out. In association with the local authorities, bodies and NGOs, the implementing agencies have to take pro-active action in this regard. In fact suggestions can be called from the residents and the local authorities/bodies to fight this menace of plastic waste.

It is not that 100% biodegradable and compostable plastic and packaging material is not available in the market. Developed countries throughout the World are already using the same. Such material is also available in India. It may be costly. It may increase the cost of the product but then people indulging in the luxury of consumption of such consumable articles, edible or otherwise, need to share the burden of costs.

By virtue of Sections 3 and 3-A of the Act State is fully empowered to impose any restrictions and prohibitions envisaged therein. We feel that this attitude of adhocism shall not work. A proper road map needs to be prepared in this regard. To begin with, State can impose such restrictions on the products which are actually being manufactured and consumed within the State of H.P. It is not difficult to identify such manufacturers. Harsh measures need to be adopted if environment is to be protected, preserved and saved.

Undoubtedly Himachal Pradesh is a tourist destination. Tourists from throughout the country and world travel to all parts of the State. Litter can be seen strewn all over tourist destinations both in the urban and rural areas. Why is it that the Municipal Corporation/Local Bodies do not provide dustbins for effective collection of such garbage even in the rural areas. Regretfully Panchayats are not taking any action for proper collection and disposal of non-biodegradable garbage. Ecology and environment are not really individual issues-they concern all of us.

Though almost two years have passed since we issued the aforesaid directions and made these observations but nothing concrete has emerged and in our order dated 9th September, 2011 we had observed as follows:-

In response to this direction the Additional Secretary (Environment, Science & Technology) to the Government of H.P. has filed an affidavit and it is stated that in compliance to the orders of the Hon''ble Supreme Court the Ministry of Environment and Forests, Government of India has notified Rules prohibiting use of plastic material for storing, packing or selling gutkha, tobacco and pan-masala. This action has been done by the Central Government. We expected the Committee to look into this question as to whether keeping in view the fragile ecology of the State of Himachal Pradesh and also taking into consideration the fact that tourism is the biggest industry for Himachal Pradesh and in case the beauty and environment of the State is marred by plastic littered everywhere the whole economy can suffer. We had expected that Committee would consider whether non-essential items such as potato chips and other snacks and savouries and things which are not essential for day to day use and would be packed in biodegradable packaging even if they are slightly more expensive. The Committee should consider this proposal and suggest whether these items can be packaged in bio-degradable material.

Most of these items fall in the category of fast food or junk food which is now medically recognized to be not good for health. We see no impediment in the State taking steps to ensure that these items are packaged in bio-degradable material. Even if the cost rises the consumers belong to the upper strata of the society and this will not in any manner affect larger section of the people. In fact, it may also help in reducing the consumption of unhealthy food. We, therefore, direct the Committee to come up with a clear cut and viable scheme for ensuring that such items are sold in Himachal Pradesh only in bio-degradable packaging. We may make it clear that our order will not cover items like milk, vegetable-oils etc. which are items of essential use meant to be used by general public.

The Committee should file its report in this behalf through the Addl. Chief Secretary (Environment, Science & Technology) to the Government of H.P. within eight weeks from today.

Again an additional affidavit was filed but the issue raised by the Court were not dealt with and we had expressed our dissatisfaction in our order dated 18th November, 2011 wherein we again observed as follows:-

This court has been repeatedly emphasizing the need of sale of non-essential items packaged in biodegradable packaging material. No effective steps for controlling sale of such items in non-biodegradable packaging material have been taken by the State so far. On the request of Mr. R.M. Bisht, learned Dy. A.G. two weeks more time is granted to the State to consider the feasibility of sale of non-essential items in biodegradable packaging material within the State. It is clarified that if no effective steps are taken, Court would be constrained to impose a total ban on sale of such items packed in nonbiodegradable material in near future.

In the affidavit filed by the State in response to the order dated 18th November, 2011 it has been stated as follows:-

It is submitted that as a matter of fact, the deponent has made sincere efforts for furthering the agenda in pursuance to the Hon''ble Court''s order by convening meeting with the Industries Association and the representatives of the Traders Associations. Vide affidavit filed on 17.11.2011 the responding Department has already apprised this Hon''ble Court that the matter w.r.t. considering usage of bio-degradable material for packaging non-essential items has been taken up with the Ministry of Environment and Forests, Govt. of India for taking a holistic view in the matter, in view of the fact that Industries Association in HP had conveyed in a meeting held with them on 11.11.2011 that the ban on the use of polythene for packaging purposes would create un-competitive business scenario for industries undertaking manufacturing activities viz-a-viz their counterparts in other states. Besides creating non-level playing fields, it is felt that banning the use of non-biodegradable packing material for non-essential items would also have inter-state trade, tourism, transport and livelihood implications. Though, it is admitted that unsustainable polythene management results in degradation of environment, however, the State is duly attending to the environmental aspects in the State in a phased manner as already elaborated in paras supra. It is admitted that the bio-degradable packaging options are emerging but in view of the high cost of biodegradable plastic, the packaging of non-essential items in bio-degradable material would create price disparity in the State.

Moreover, there can also be possible technological constraints involved in packaging non-essential items such as chips, etc. in bio-degradable plastic. The mechanism proposed and agreed to by the Industries Associations for sustainable plastic waste management in industrial areas through Waste Audit by the industrial entities at the beginning of the year and to reduce the quantum of waste every year by waste reduction, waste recycling and waste re-use would certainly be an effective mechanism for sustainable plastic waste management in Himachal Pradesh. It is felt that in the intervening period, use of bio-degradable plastic packaging material would catch up due to economies of scale and would help facilitate to manage the packaging of non-essential items.

The stand of the State, to say the least, is ambiguous. More than a year has elapsed since this affidavit was filed. Why does the State not explore the other alternate packaging material? We had in our earlier orders on many occasions indicated that we do not want to totally ban plastic and non-biodegradable packaging and the same can be used for packaging essential items, such as, milk, vegetable oils, medicines, etc. which are the daily-needs of the consumer because we do not want the prices of these items to increase and affect the poor public which is already reeling under the impact of inflation. At the same time, we cannot permit non-essential items, especially items commonly known as junk food which adversely affect the health of the children to be packed in non-biodegradable packaging. Already a start has been made by banning the sale of Gutka, etc. Junk food may not fall in the same category as the Gutka or other tobacco items but the adverse effects of such junk food are well known.

As a start, we are of the opinion that there should be a ban on only those non-essential items which fall in the category of junk food, such as, wafers, chips, sweets, noodles, chocolates, Ice cream candy, biscuits, namkeen, food items containing MSC etc. which should be brought into Himachal only in biodegradable packaging. Even soft drinks should be brought in glass bottles or other biodegradable packaging but not in non-biodegradable packaging. Even if the costs of such non essential items has to be increased slightly to meet the costs of this biodegradable packaging it would be the worth paying that extra money to protect not only the environment of the State but also the health of the children. We also make it clear that if we find that this experiment is successful then we may expand the scope of this order to cover other non-essential items also.

We constitute a Committee to be headed by the Principal Secretary (Science & Technology) and comprising of the Principal Secretary (Law), Principal Secretary (Health), Director (Health Services), Director (Ayurveda) and if Director (Ayurveda) is not a medical specialist then the senior most Ayurvedic Specialist in the State of Himachal Pradesh, Head of Department of Pediatrics, IGMC, Shimla and Head of the Department of Medicines, IGMC, Shimla. The Committee will draw up a list of those items which can be termed as junk food and submit its report to the Court by 30th November, 2012.

Once the Committee identifies these items, these items shall not be brought into Himachal in non-biodegradable packaging w.e.f. 1st April, 2013. List on 21st December, 2012. An authenticated copy of this order be handed over by the Court Master to the learned Additional Advocate General.