As Maharashtra keeps making exemptions, people wonder if the ban will at all be effective
Gajanan Khergamker | July 20, 2018
For a ban that arrived with a bang, it seems to be fading away even before it could take effect. The Maharashtra government has backtracted to allow groceries and general stores to continue to use plastic for packaging after shopkeepers associations complained to state environment minister Ramdas Kadam. Already, environmentalists are calling it the beginning of the end of the plastic ban. They say it’s a matter of time before the government buckles before the powerful plastic manufacturers’ lobby and brings in relaxations that turn the ban into a sham.
For a law to be constitutionally sound and viable, it must be just and practicable. The most recent ban on plastic, adopted through a notification issued on March 23, 2018, under a 2006 state law – the Maharashtra Non-Biodegradable Garbage (Control) Act – is ambiguous, to say the least. The government’s submissiveness to powerful interest groups undercuts what the law – with its flaws – sets out to achieve. Some are describing it as prima facie mala fide: with hasty implementation, it penalises the citizen without providing alternatives. The fines aren’t in proportion to the offence: a first-time offender is fined Rs 5,000, a second-timer Rs 10,000, and a third-timer Rs 25,000. But the fines are the same whether one is carrying a single plastic bag or trasporting a truckful. Bribes will be paid, and if a alleged violator contests the charge, the matter will go to court, clogging up the courts.
Even before the ban was implemented, some groups felt targeted while well-organised groups lobbied their way out. Under the law, speciality plastic is permitted for milk and agricultural purchases, but not for fish or meat or other dairy products. While recyclable plastic is permitted for wrapping manufactured products or where it is “integral to manufacture”, the law does not clarify what industries it would exempt.
Plastic is permitted in special economic zones and export-oriented facilities, yet banned for manufacturers and traders engaging in inter-state and international trade. Also, while plastic packaging for medicines is exempted, the government is backtracking on absolute bans on PET bottles of less than half a litre and Thermocol decorations. The environment department has already stated that for the Ganesh festival, the ban on Thermocol may be relaxed.
Such discrepencies are not only bad in law, they may be seen as violative of Article 14 of the constitution, which guarantees all citizens equality before the law. In the ‘Inderpreet Singh Kahlon vs State of Punjab’ case, the supreme court said that action taken by a state in undue haste may be held to be mala fide. And in the ‘State of West Bengal vs Anwar Ali’ case, it said that any legislation that gives the executive the power to select instances for special treatment without indicating the policy may be set aside as violative of equality.
There are textual inconsistencies too. The law banning plastic is in some places painstakingly detailed and in others callously casual. The notification on “manufacture, usage, transport, distribution, wholesale & retail sale and storage, import” is broadly applicable to all public places in the state and to all individuals and companies. Plastic bags, disposable plastic and Thermocol products are covered by the notification which includes single-use plastic containers and cutlery, plastic wrapping and liquid containers. However, the definition ambiguously and abruptly ends with the term ‘etc’, empowering those enforcing the law with limitless discretion and endless power.
Bans on plastic in regions across India and the world have been largely ineffective for various reasons. The lack of enforcement and unavailability of viable alternatives to plastic have been the major stumbling blocks.
For California, for instance, a legal ban on plastic became effective in 2015 but only after preparations for a good nine years after it passed a legislation in 2006. The state laid down multi-pronged strategies and ensured strict enforcement with fines of up to $1,000 a day for violations. And, after all of this, the benefits of the ban began to show!
In San Jose, there was a 76 percent decrease in litter reduction by the end of 2016; a 69 percent reduction of plastic bags in storm-water drains, a 43 percent increase in consumers using reusable bags and a 30 percent increase in consumers carrying items without a bag since before the ban. The ban wasn’t fully successful. Yet there were positive indications of change.
There are hurdles but they don’t seem as unsurmountable. For one, the California legislature failed to pass a ban on polystyrene take-out containers. And California remains the only state to have successfully implemented the ban on plastic in the United States.
Also, the context and the reach of the law must be taken into consideration to put things in perspective. The law on plastics enforced by California applies to 3.95 crore people while the law on the same back in a state in India, say, Uttar Pradesh, applies to 22.11 crore people! The problems of reach, education, implementation and success have to be measured against the realistic quantum of the issue in question. Failing this, the entire exercise risks being reduced to a farce.
It may be noted here, that the success of a ban on plastics is directly related to the fact that not all types of plastic bags were included in the ban. Also, the provision, availability and viability of alternatives play a vital role.
Look at Sikkim, for instance. A ban on plastic introduced in June 1998 has been considered relatively successful. A study revealed that two-thirds of the shops in Sikkim use paper bags or newspaper and around a third use plastic bags. More people used paper bags here than in most Indian states. In Gangtok, the proportion of people using paper-based bags is 62 percent, whereas in Soreng (in West Sikkim district) it is 50 percent. Plastic bag packaging is used 18 percent less in towns than villages, owing probably to the higher levels of inspection.
But consider Delhi. In January 2009, the Delhi government ordered a complete ban on the use of all plastic bags in market areas and then, in October 2012, the Delhi government ordered a blanket ban on all types of plastic bags. However, non-woven plastic bags were surprisingly exempt from the ban. The ban failed owing to absolutely no clear effort from the government to educate, initiate or even enforce the ban in the right spirit.
In India, it’s nearly impossible to monitor the plastic bag usage of small vendors whose numbers are huge and very fluid. It is relatively easier to monitor large businesses and punish them for non-compliance. Corporates and global brands may display some sense of social responsibility, but a small trader or first-time vendor may not comply.
Incidentally, Maharashtra is India’s biggest generator of plastic waste producing more than 4.6 lakh tonnes every year. The ban, when announced, was perceived as a tough political move that would face resistance, but be supported across quarters. For greater good.
Yet, once the ban was announced, the cash-rich industry started lobbying to get the government to change its stance. Stories began to appear within the media on the “loss of jobs” owing to the decision and fears of the economic impact on Maharashtra.
While on the face of things, the industry promised a slew of recycling initiatives; it pooled in its collective force to highlight how “ecologically harmful” the ban would be, as it would lead to “more usage of paper”. Buckling under pressure, the government exempted companies using plastic packaging for food products, bread and milk. Next, PET bottles used for mineral drinking water were exempted. And within days of the ban on plastic, retail packaging of not less than 250 gm was permitted for small-time general and grocery stores.
Incidentally, 18 states have announced a complete ban on the manufacture, supply and storage of polythene bags and other plastic items such as cups, plates, spoons and glasses while five states have a partial ban such as one on sales etc. So of the 36 states and union territories in the country, 23 have banned plastic in some way or the other! And yet, the scourge of plastic pollution is on the rise quashing the myth that a ban of any sort works.
(The article appears in the July 31, 2018 issue)
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