India: The Plastic Predicament

The world is struggling to manage its plastic waste. Oceans are brimming with plastic, rivers are getting chocked, animals are dying due to plastic ingestion and we are falling short of land to dump our plastic waste. India, the second most populous country, is struggling with this problem as well. Most states in India have supposedly banned plastic usage. Last month Maharashtra became the eighteenth state in India to ban the use of plastic. The Government of Maharashtra on 23 March, 2018 issued the Maharashtra Plastic and Thermocol Products (Manufacture, Usage, Sale, Transport, Handling and Storage) Notification, 2018 ("Plastic Ban Notification"). The notification was meant to impose a ban on the manufacture, transport, distribution, wholesale and retail sale, usage, storage and import of certain plastic products. The reason cited for imposing a ban on such plastic products was the threat such products imposed on the environment including humans and wildlife especially due to the leaching of chemicals from plastic. 

The Plastic Ban Notification had excluded compostable plastic bags, plastic used for packing medicines, plastic bags and products for export and food grade virgin plastic bags above 50 micron thickness. Surprisingly, besides other forms of plastic, PET or PETE bottles below 0.5 litres capacity had also been banned, while PET or PETE bottles of capacity above 0.5 litres were allowed. The Government had provided a one-month period for compliance and safe disposal of the banned plastic products by all concerned. As expected, the ban was challenged before the Hon'ble High Court of Bombay besides representations being made before the Government of Maharashtra to reconsider the ban.

The Government of Maharashtra came up with an amendment to the aforesaid notification on 11 March, 2018 wherein they permitted the sale and usage of PET or PETE bottles below 0.5 litre capacity as well. The notification amendment has provided a time period of three months within which the PET or PETE bottle manufacturers, producers, sellers and traders have to develop the "Buy Back Depository Mechanism" as a part of their 'Extended Producers and Sellers/Traders Responsibility'. All such bottles, like other products which are qualified to be bought back, will have a predefined buy back price printed specially on them. The notification also provides for setting up collection centers, reverse vending machines, and crushing machines with linkages established with recycling units, to collect and recycle such PET or PETE bottle, within three months from the date of publication of this notification. Such centres would be established at strategic places including malls, multiplexes, hotels, shops, tourist places, beaches, forts, public places etc.

The Hon'ble High Court of Bombay in its Order pronounced on 13 April, 2018 refused to stay the ban on use of plastic as was enforced through the Plastic Ban Notification but it ordered that leniency be shown towards those using plastic during the three month period as this is a stage of transformation and necessary infrastructure and mechanisms are not yet in place to collect and manage the plastic waste yet. Hence, it would not be correct to prosecute anyone for being in possession of plastic. The Court also held that manufacture of plastic would not be allowed in the state anymore as it was a reasonable step towards curbing the plastic menace. However, the High Court of Bombay has directed the Government of Maharashtra to hear the representations of different industry associations and bodies and come up with a decision to modify the ban order to the extent appropriate by 5 May, 2018.

It is interesting to note that despite the Central Government having already notified the Plastic Waste Management Rules 2016 about two years back we are still struggling to implement these plans and neither adequate infrastructure nor the necessary awareness and personnel training is in place to manage the plastic waste that is being generated all across the country. The National Green Tribunal has also passed numerous orders regarding the use, collection, segregation, transportation and disposal of plastic waste in various cases across the country and has also ordered that fines be imposed on violators but like the panacea for most problems in our country in this case too implementation is the key.

While advocating a ban on plastic it is pertinent to note that not every form of plastic is inherently dangerous. What we sincerely need are efficient mechanisms to manage plastic waste. A blanket ban on all forms of plastic may not be the best solution. Plastic in certain permissible forms has numerous advantages over other materials and if used and managed properly is a great low-cost and user-friendly alternative. We need a well-thought plan to gradually do away with plastic after finding suitable alternatives and till the time that happens, we need to tread cautiously.     

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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