Sanjeev Kumar vs State

In these petitions this Court is concerned with the indiscriminate use of plastic polythene which are totally non-biodegradable for the purpose of packaging. The petitioners have raised important issues in these petitions with regard to the use of plastic and other non-biodegradable material used for packaging of essential items. A balance has to be struck between the economy and need to provide essential items to the poor at minimal cost and also the need to prevent degradation of the environment.

At the initial stage we were only concerned with mustard oil, which was supplied by the H.P. State Civil Supplies Corporation Ltd. and packed in plastic bottles and polythene bags. We had then constituted a Committee headed by Mrs. Sarojini Ganju Thakur, the then Additional Chief Secretary to the State of Himachal Pradesh who also was heading the department of Environment Science and Technology, who vide our order dated 19.6.2010 was asked to go into the following aspects amongst other things:

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.

Keeping in view the larger interest of the State, we had enlarged the scope of the petition and in fact a separate petition being CWP No. 1885 of 2010 was filed by the petitioner wherein he raised all the issues relating to indiscriminate use of plastic in the State.

We must record our appreciation for the fact that both the Corporation and the State have shown a positive attitude in the matter and have always accepted what was possible to be done to reduce the use of plastic in the State. In fact, on the suggestion of the Court the H.P. Tourism Development Corporation had set up some water purifiers on the Mall Road, Ridge, etc. in Shimla from which pure water was dispensed. However, we have been told that these machines are no longer operational and in fact have been removed. By the next date, the H.P. Tourism Development Corporation as well as the State shall file a reply in this regard.

At this stage, it would be apposite to quote relevant portion of the order dated 17.12.2010:

To begin with, State has enacted the Himachal Pradesh Non-Biodegradable Garbage (Control) Act, 1995 (hereinafter referred to as the Act). It has also framed Himachal Pradesh Non-Biodegradable Garbage (Control) Rules, 1996. Vide Notification dated 26.11.1998 it has imposed prohibition on the traders, retailers and vendors in the State of Himachal Pradesh from using coloured polythene carry bags manufactured from recycled plastic for packaging the goods traded/sold by them. On 4.6.2004 another notification was issued imposing complete ban on the stockists, traders and vendors, within the State of Himachal Pradesh, from using carry bags made of nonbiodegradable material having thickness of 70 microns and size less then 12" x 18". Vide another notification dated 7.7.2009 State prohibited any person from using "plastic carry bags (irrespective of their sizes and thickness) and plastic items having one time use such as disposable plastic cups, glasses and plates" made of non-biodegradable material. In terms of said notification littering of plastic waste by institutions, commercial establishment or an individual is also subjected to fine.

x x x...

In small measure though, it has also taken steps in making the end user and general public aware of the same. In this regard, in association with the State Pollution Control Board, State has tried to create mass awareness by displaying hoardings at different places within the State. It has initiated a programme popularly known as "Polythene Hatao-Paryavaran Bachao" Campaign-Phase-I (21st to 26th December, 2009) Phase-II (22nd April to 29th April, 2010) and Phase-III (25th September to 2nd October, 2010). This has led to collection of approximately 208 tons of polythene/plastic waste.

x x x...

With regard to our suggestion of providing pure and clean drinking water to the residents and the tourists at various vintage points, our attention has been invited to installation of one such out let in Shimla. We are informed that matter is being pursued with various Associations of Hoteliers/Restaurant owners, Municipal Corporation and other local bodies throughout the State. Pure and clean water can be provided to all by installing water purifiers at certain institutions/offices/commercial establishments/Restaurants/Hotels. This would definitely reduce excessive and frequent use of plastic in the shape of bottled water. We feel that for further and effective implementation of this measure active association of these Associations is necessary. We are informed that in Himachal Pradesh there is a registered body by the name Himachal Hotels Association, and in Shimla there is a body known as Shimla Hotels and Restaurants Association. Accordingly we implead Himachal Hotel Association, having its registered office at Hotel Himland East, Circular Road, Shimla-1 through its President Mr. Umesh Akre and Shimla Hotels and Restaurants Association, having its office at Shivalik Hotel Lower Forest Hill Road, Shimla through its President Mr. Jaswant Kukreja, as party respondents No. 4 and 5. Registry is directed to correct the cause title accordingly. We direct that notices be issued to the said respondents returnable for 26.3.2011.

x x x...

We have perused notification dated 20.8.2010 and guidelines circulated on 19.7.2010 whereby several functionaries of the State have been notified to effectively implement the provisions of the Act. However, this by itself would not result into implementation of the laws. We notice that in the guidelines framed by the State, concerned District Magistrate/Deputy Commissioner are required to send a report every month. We direct that the action taken on such action taken reports, in a tabulated form, be placed before the Court before the next date.

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.

Thereafter, the matter was taken up on various occasions and on 9.9.2011 this Court after referring to the order dated 19.6.2010, 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 biodegradable 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.

The Committee did not take into account the aspects pointed out by the Court and therefore, on 18.11.2011 we had granted two weeks further time to the Committee. Thereafter, the matter kept getting adjourned for one reason or the other but the Committee did not identify the food items which could easily be packed in bio-gradable packing and which were not essential food items and would fall in the category of junk food.

On 19.10.2012 we had referred to our earlier orders dated 19.6.2010, 17.12.2010 and 9.9.2011 and found that additional affidavit filed still did not deal with the matters raised by the Court. Therefore, we went on to hold as follows:-

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 dailyneeds 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 nonbiodegradable 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 nonessential items also.

We then constituted a Committee in the following terms:-

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.

We in our order had clearly held that once the Committee identifies these items such items shall not be brought in Himachal Pradesh in non-biodegradable packaging w.e.f. 1st April, 2013. The Committee did not give a very clear cut report and vide our order dated 28th December, 2012 we had observed as follows:-

All that we can say is that the import of our order was not understood. The Committee cannot sit over the order of this Court. We had directed the Committee to identify the items, which could be termed as junk food. Thereafter, what action was to be taken was for this Court to decide and it was not for the Committee to advise this Court whether such directions can be issued or not. The Committee has also not cared to notice that the Union of India is already a party in the writ petitions. We have only sought assistance of the Committee with a view that they could assist the Court as to which items are essential items and can be permitted to be supplied in plastic packaging and which items are junk food. We had indicated some of the items which could be termed as junk food. We had given a direction to the Committee to draw up a list of items which could be termed as junk food and submit a report to this Court by 30.11.2012. The Committee has willfully disobeyed the orders of this Court on the specious plea that the necessary legal definition of junk food does not exist in current format and its regulation would be legally untenable. The Committee should have done the job which we had asked it to perform and not sat over the orders of this Court. 4. If the State is aggrieved by our orders, it can approach the Supreme Court but the Officers of the State, especially of the rank of Chief Secretary and Secretary (Law), cannot sit over the orders of this Court. We are pained to observe that even the Secretary (Law), who was a member of the Committee, has not even pointed out to the Committee that the orders of this Court have to be complied with. We, therefore, direct the Committee to reconsider the matter and give us a list of junk food items, within ten days from today.

The Committee has filed its fresh report and the concluding portion of the report of the Committee is as follows:-

However, after detailed deliberation it emerged that any food item could become ''junk'' or ''unsafe'' if consumed continuously and excessively. The Principal Secretary, on the basis of discussions, concluded that the general view of the Committee suggests that the nature of any particular food item depends on the quantity of sugar, salt, fat and nutritive value it contains, the procedure through which the food item has been processed and finally the quantum of intake by any human being. Though ''Junk Food'' has not been legally defined yet as per para 6 of the letter received from Health and Family Welfare Department, the items that can be possibly considered as junk food if consumed in large quantities and cooked in undesirable manner such as frying and containing items of sugar, salt, etc. over and above the recommended levels are as annexed (Annexure-A). The list is merely illustrative not exhaustive.

Annexure-A, which the Committee has approved is a letter from the Health and Family Welfare Department to the Chief Secretary to the Govt. of H.P. and reads as follows:-

(1) The junk food items refer to foods that contribute lots of calories but little nutritional value. Most frequent factors associated with the junk foods are:

� Low in fiber.

� High in palatability

� Offer a high number of calorie in a small volume

� Contains large amount of refined flour

� High in fat and preservatives.

(2). Due to their very nature, they are low in satiation value which leads to other eating. Such foods tend to replace other, more nutritious food and many of these items such as patties and samosas are high in trans fats, raising cholesterol level. Some fried food items may have carcinogenic properties and the carcinogens such as Acrylimide is present in many fried items. Further, in most of such food items refined flour is used as a major ingredient which has a high glycemic index and this again leads to sudden rise of blood sugar level. High fructose and sucrose content in sweets and candies lead to sudden rise of blood sugar level.

(3) Similarly, the liquid junk food items like sauces are high in sodium and sugar. The Mayonnaise use is high in preservatives and egg yolk. Aerated beverages contain high concentration of synthetic sugars which induces acidity and also increase tendency for storage of body fat.

(4) These junk food items are harmful and lead to a number of disease conditions such as:

� Obesity

� Type-II diabetes

� High blood pressure

� Cardio vascular problems

� Osteo arthritis

� Sleep disorders

� Colon cancer

� Low IQ in children.

(5) Generally, junk food items supplied to the masses come packed in non-biodegradable packages where gases under pressure are used to inflate the packages so as to keep the items in fresh state and preventing them from turning rancid, soggy and stale. Use of paper bags for packing food items such as wafers, chips etc. may not permit the use of packing gases under high pressure and also risk of brusting and tearing remains. Therefore, use of other options such as tetra packs, tin packing or biodegradable plastic of 20 micro meter thickness is proposed.

(6) Due to geographical, cultural and other variations, it is not feasible to give an exhaustive list of all the junk foods however, the Committee constituted by the Hon''ble High Court may consider the following for being branded as Junk food among other possible items:

� Chips/wafers*

� Kurkure/mad angles*

� Biscuits*

� Namkeen*

� Lollypop*/Candy*/candy bar*/toffees/sweets*/chewingum*

�

� Cheese puffs*

� Cookies*

� Aampappars*

� Ice cream & Ice cream candies*

� Chocolates & chocolates candies*

� Maggie*/Noodles*

� Sugary cereals/cornflakes/breakfast cereals coated with sugar*

� Deep fried samosas

� Pakoras.

� Pizzas

� Burgers

� Patties

� French fries

� Colas & carbonated drinks

� Shakes

� Synthetic & fruit beverages

� Indian sweets i.e. Jalebees, Gulab Jamun, etc

� Naan, pav bhajee

� Gol gappa & other street fruits

� Creamy Cakes & other fruit cakes.

(item marked with asterisk * are mainly supplied in non biodegradable packings.)

From the report of the Committee it is obvious that junk food items are those which are low in fiber but tasty. These items have high calorific value and they contain large amount of refined flour and high amount of fat and preservatives. In para 4 of the report the Committee has clearly indicated that these junk foods are harmful and lead to a number of diseases, such as, obesity, diabetes, colon cancer, low IQ in children, etc. We had already earlier indicated that the health of the children who are future of the country is much more important than the profits which any private company will earn. We are not in any manner issuing directions that such items are banned because that is not within the purview of the Court but if we follow the law enacted by the State i.e. Himachal Pradesh Non-Biodegradable (Control) Act, 1995, the least we can do is to direct that these harmful items which are classified as junk foods if sold in the State of Himachal Pradesh in packed condition should be sold only in bio-degradable packing and not in non-biodegradable packing. This may make these items slightly more expensive but as indicated by us earlier even if the consumption of these items is reduced that will be better for the health of the children. This may finally end up in saving crores of rupees which the State spends on health care.

Out of the items identified some of the items identified are normally not supplied in packaged condition. However, in case they are supplied in packaged condition they will have to comply with our orders and be sold only in biodegradable packaging.

Therefore, we direct that in terms of the earlier order dated 19th October, 2012 the items identified by the Committee in para 6 of its report shall not be permitted to be sold in the State of Himachal Pradesh in non-biodegradable packing w.e.f. 1st April, 2013. We may make it clear that this list is not the final list and the petitioners can file response to the report and claim that other items should also be included in the list.

Shri Ajay Mohan Goel, learned counsel for the petitioners has filed an affidavit of Shri Tarlok Chauhan, Advocate, of this Court in which Shri Tarlok Chauhan has also brought to the notice of this Court the fact that when he went to Kullu on 22.12.2012 and had made purchases at Shamshi he was shocked and amazed to see that all the items were handed over to him in polythene bags which are otherwise banned. The polythene bags have been produced in Court which on the face of it are not of the quality framed under the rules. It appears that the ban is now being flouted. We call upon the State to take necessary steps in the matter and issue directions to all the officers concerned to ensure that the law as framed by the State is enforced and the ban on the polythene bags is strictly enforced.

We would like to bring on record the fact that from our experience we have found that the situation in the State of Himachal Pradesh with regard to degradation of the environment on account of plastic has improved ever since the act was framed and plastic was banned in the State. The streams and Nallahs are cleaner. In rural areas, earlier a large number of cattle used to die after ingesting these polythene bags. We also found that the public by and large has been very responsive to the ban and had welcomed it. It is only a few unscrupulous persons who are still defying the ban. We request the State to make the penalties even more harsh. This will definitely help in improving the situation.

The petitioners and in fact the Committee in its earlier report had also brought to the notice of this Court the fact that books, magazines, readymade clothes, suit cases, hand bags, utensils, gift items, mattresses and many other items rapped in polythene which is of very low grade polythene. Even if this cannot be totally banned, we are of the view that it should be made the responsibility of the persons selling these items to ensure that when they are actually sold the polythene/plastic covers and packing is removed and collected so that it can be used in terms of our earlier orders for laying of roads, etc. The Committee which we have constituted may also look into this aspect by the next date. We place on record our appreciation for the valuable assistance rendered by Shri Ajay Mohan Goel and Shri Karan Singh Kanwar, Advocates.

List the matter on 15th March, 2013.

Dasti copy.