The Kerala High Court on Tuesday quashed an order of the State Government, prohibiting the manufacture, stocking and sale of compostable plastic bags in the state.
Allowing a batch of written petition challenging the state government decision to include compostable plastic carry bags within the ban on single-use plastic, the High Court said -“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 Single Bench of Justice AK Jayasankaran Nambiar noted that the impugned order was passed on a mere conjecture that non-compostable plastics are being passed off as compostable ones, without any cogent material or empirical data to back the same.
It thus allowed a batch of petitions filed by various persons engaged in the business of compostable plastic, and held that the Government order is not legally sustainable.
“To impose restrictions on fundamental rights, the State Government would need to have cogent material 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,” the Single Bench held.
“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.”
It further held that the impugned order fails the tests of proportionality, inasmuch as it imposed restrictions on the fundamental right of the petitioners under Article 19 (1)(g) of the Constitution, to trade and deal in compostable plastic carry bags- which itself a non-polluting article.