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Har Ghar Khadi Ka Tiranga: The New Law w.r.t. National Flag

CommonMan

‘Har Ghar Tiranga’ is a campaign being promoted by the Hon’ble Prime Minister of India under the aegis of Azadi Ka Amrit Mahotsav to encourage people to bring the Tiranga home and hoist it on their houses from 13th to 15th August, 2022 to mark the 75th year of India’s independence.[1]

Indian Flag was adopted on 22nd July, 1947. The display, hoisting, and use of the Indian National Flag is presently governed by the Flag Code of India, 2002 and Prevention of Insults to National Honour Act, 1971. The Flag Code brings together all laws, conventions, practices, and instructions for the display of the National Flag and governs the display of the National Flag by private, public, and Government institutions. As the law stood earlier, machine made and polyester flags were not allowed to be used and “hand-spun and woven wool or cotton or silk khadi bunting” were only allowed. Further, the import of machine-made flags was banned in 2019 in order to boost the Khadi industry. The tricolour was allowed to be flown from sunrise to sunset only, irrespective of weather conditions.

Not very long ago, the Flag Code of India, 2002 has been amended vide Order dated 30th December, 2021 and National Flag made of polyester or machine made Flag have now been allowed. The Code has been further amended on 20th July, 2022 to state that where the Flag is displayed in open or displayed on the house of member of public, it may be flown day and night.  On 20th of July, 2022, the Home Ministry, Government of India has issued a direction bearing no. D.O. No. 2/01/2020-Public (Part-III) addressed to all the Ministries and Departments of the Government asking them to publicize the said changes to the general public.

In order to boost the campaign, all Post Offices in the country will start selling flags from 1st August 2022. Apart from physically hoisting the flag, the Ministry of Culture has launched a website where one can ‘Pin a Flag’ and also post a ‘Selfie with Flag’ to showcase one’s patriotism.[2]

Ironically, despite such zeal and promotion, the outcome of the said amendment does not seem to be very pretty when one looks at the ground situation. One, the size specified under the campaign is 20×30 inches and 16×27 inches. This is not permitted under the BIS’ standards for the National Flag. Some manufacturers, which are BIS approved, are finding it practically difficult to manufacture the flags as per the changed dimensions. Secondly, the manufacturers of Khadi Flags are shocked on National Flag made of polyester being allowed. According to them the sanctity of the tricolour has been played down rather demeaned by allowing polyester cloth. All those involved in the Khadi and Village Industries are struggling with relatively very less orders or no orders at all. The situation is grim.

Where on one hand, the Government has banned items made of single use plastic, allowing another form of plastic – polyester – to be used for making Flags seems to be an aberration in the overall policy. Also this seems to defeat the objective of promotion of Khadi industry by the Government. Khadi Sanghas have written to the Prime Minister and Home Minister seeking withdrawal of the amendment while they have planned a symbolic protest on July 27. This amendment, however, may have an explanation. One reason of introducing polyester is the difference in price of raw material . Polyester is cheap. Khadi, on the other hand, is facing a steep hike in price (highest in last decade) due to fall in the production of cotton in the country.

In this light, promotion and our support should rather go with showing solidarity with Khadi industry. Demand for National Flags made of Khadi can make a difference. Lets do a “Har Ghar Khadi ka Tiranga” instead of just celebrating “Har Ghar Tiranga” on this platinum celebration of Nation’s Independence Day.

[1] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1844020

[2] https://rashtragaan.in/, https://harghartiranga.com/

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Supreme Court Upholds Woman’s right to Reproductive Choice, Bodily Integrity And Autonomy: An Unmarried Woman’s Right To Safe Abortion

Constitution of India

“The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child.” – Supreme Court of India.

The law of abortion in India, as on date, lays down that a Medical Practitioner can terminate the pregnancy, provided, the pregnancy does not exceed 20 weeks [Section 3(2) (a) of the Medical Termination of Pregnancy Act, 1971 (“1971 Act”)]. Where the pregnancy exceeds 20 weeks but does not exceed 24 weeks, pregnancy may be terminated if not less than two registered medical practitioners, in good faith, are of an opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality [Section 3(2) (b) of 1971 Act]. The law further lays down the presumption that where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. [Explanation 1 to Section 3(2) of the 1971 Act]

As per Rule 3B of the Medical Termination of Pregnancy Rules, 2003 certain cases shall be considered eligible for termination of pregnancy under section 3(2)(b) of the 1971 Act. They are – survivors of sexual assault or rape or incest; minors; women whose marital status changed during the ongoing pregnancy (widowhood and divorce); women with physical major disabilities as per criteria laid down under the Rights of Persons with Disabilities Act, 2016; women with mental illness including mental retardation; Women developing foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

A Division Bench of Delhi High Court comprising of Justices Sathish Chandra Sharma, CJ and Subramonium Prasad, J recently came across a pressing question where the Petitioner, an unmarried woman of 25 years, in her interim application in the Writ sought the relief of termination of pregnancy ( being 24 weeks pregnant) that arose out of a consensual relationship. that did not last. The Court dismissed the application and declined the interim relief stating that “As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself.” [Ms. X v. The Principal Secretary Health And Family Welfare Department, Government of India W.P.(C) 10602/2022 CM APPL. 30708/2022 decided on 15.07.2022]

The Hon’ble Supreme Court in the appeal against the said order of the Hon’ble High Court [X v. Health And Family Welfare Department, Special Leave to Appeal (C) No(s).12612/2022] passed an order dated 21.07.2022 observing that the order of the High court was unduly restrictive. Although the Court observed that Rule 3B of the 2003 Rules does not contemplate a situation involving unmarried women, the Court also did not find any reason to deny the relief to an unmarried woman. The Court cited the following reasons:

  • the legislature has not intended to make a distinction between a married and unmarried woman;
  • same choice is available to other categories of women;
  • the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament under the Legislation;
  • The Parliamentary intent, is not to confine the beneficial provisions of the 1971 Act only to a situation involving a matrimonial relationship;
  • Parliament by amending the 1971 Act in 2021 intended to include unmarried women and single women within the ambit of the Act which is evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act;
  • allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament;
  • allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute;
  • Explanation 1 to Section 3 of the Act – Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy;
  • The expression “change of marital status” in clause (c) of Rule 3B should be given a purposive rather than a restrictive interpretation and expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes;
  • Now even live-in relationships have been recognized by the Supreme Court. [In S Khusboo v. Kanniammal (2010) 5 SCC 600 it was held that “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”]

The Court in unequivocal terms has laid down the law that “A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity.”The Court further observed that denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.

The Court while delivering the judgment relied on Suchita Srivastava v Chandigarh Administration [(2009) 9 SCC 1]wherein the Court had held that “If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health”. Similarly, in Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, [(2017) 10 SCC 1], the Court had held that the decision of a woman to procreate or abstain from procreating has been recognized as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution.

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Scope of Judicial Inquiry under Section 11(6-A) of the Arbitration and Conciliation Act: Unequivocally Expanded

Arbitration

Recently, in the matter of Indian Oil Corporation Limited v. NCC Limited [CIVIL APPEAL NO. 341 OF 2022 decided on 20.07.2022] once again the Hon’ble Supreme Court confirmed that the judicial inquiry under Section 11(6A) of the Arbitration and Conciliation Act, 1996 is not confined   only   to ascertain   as to   whether   or not   a   binding arbitration agreement   exists and the Court cannot mechanically refer the dispute to arbitration. The Court needs to apply its mind and decide whether the arbitration agreement is valid and whether the dispute is covered by the arbitration clause.

As per the ratio in the case, “However, at the same time, we do not agree with the conclusion arrived at by the High Court that after the insertion of Sub-Section (6¬A) in Section 11 of the Arbitration Act, scope of inquiry by the   Court   in   Section   11   petition   is   confined   only   to ascertain   as  to   whether   or  not   a   binding  arbitration agreement   exists  qua  the   parties   before   it,   which   is relatable to the disputes at hand. We are of the opinion that though the Arbitral Tribunal may have jurisdiction and   authority   to   decide   the   disputes   including   the question of jurisdiction and non-arbitrability, the same can also be considered by the Court at the stage of deciding Section 11 application if the facts are very clear and glaring and in view of the specific clauses in the agreement   binding   between   the   parties,   whether   the dispute   is   non-arbitrable   and/or   it   falls   within   the excepted clause. Even at the stage of deciding Section 11 application, the Court may prima facie consider even the aspect with regard to ‘accord and satisfaction’ of the claims.”

The Court has essentially maintained the position of law as laid down in DLF Home Developers Limited v. Rajapura Homes Private Limited & Anr and DLF Home Developers Limited v. Begur OMR Homes Private Limited & Anr [both decided on September 22, 2021] wherein it had held that the Courts are “not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen Arbitrator.” The Court had ruled that the Courts are “obliged to apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act.” The position of law is an extension of what fundamentally the Apex Court ruled in Vidya Drolia and Others v. Durga Trading Corporation (2021) 2 SCC 1 and if we go backwards, in  Duro Felguera, S.A. v. Gangavaram Port Limited [(2017) 9 SCC 729]. The three judge bench in Vidya Drolia explained theconcept of limited prima facie review. The Court held that the scope of judicial review and jurisdiction under Sections 8 and 11 of the Act is extremely limited and is to be exercised in rare occasions only and went on to clarify that although a prima facie examination does not mean full review, the purpose of the scrutiny is to weed out manifestly invalid arbitration agreements and non-arbitrable disputes. Further, it may be that certain cases require a still deeper consideration during prima facie examination but this should be done with measured restraint. The Supreme Court, however, cautioned that the scrutiny made by the Courts should be done only to effectuate the arbitration process.

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Understanding Plastic Ban In India And Worldwide : Part III

Environment

I still see plastics around!

That is true. Plastics have not been completely abolished.  They are being phased out starting from a few (19) items that have been banned from July 1, 2022 and by increasing the thickness of plastic bags gradually in phases. The Extended Producers Responsibility guidelines notified in February 2022 also sets gradually scaled up targets for plastic recycling, making it mandatory for producers, importers and brand-owners to recycle up to 50 per cent of the plastic they use or produce over the next three years. Even as per the PWMR, any similar notification introducing prohibition in future shall not come into force before the expiry of ten years from the date of its publication.

What is not banned?

All of us know or are fond of Pepsico and Coke drinks/products. However, the less known fact about them is that the Coca-Cola Company and PepsiCo are ranked as the world’s top plastic polluters for the 4th consecutive year in 2021 according to Global Brand Audit Report of Break Free From Plastic.[1] As apparent enough, these bottles are not banned. Further, PET bottles having a liquid holding capacity of 200 ml or more with deposit and refund price or buy-back price under EPR printed on them; recyclable plastic stationery products used at office and educational institutions; thermocol boxes to preserve fish in the fishery business; plastic for packaging of medical equipment and medical products; plastic items like bottles, tiffins and boxes used for domestic purposes; recyclable multi-layered plastic items like chips packets, shampoo sachets, oil packets and chocolate packets; virgin plastic bags used for milk (having a thickness of not less than 50 microns and must be printed with a buy-back price); paper-based carton packaging using one or more layers of plastic; compostable plastic bags used for horticulture, agriculture, plant nurseries and solid waste handling; plastic packaging material with more than 50-micron thickness, a minimum of two grams weight used to seal groceries and grain products at wholesale and retail stores and manufacture of plastic bags for export purposes in export-oriented units and Special Economic Zones – are not banned.[2]

Why are plastics being phased and not completely banned?

Plastics are monstrously destroying life on planet.[3] A shocking 91 per cent of all plastic is single-use which is being used for the last 6 decades. As per US Chronicle, “The problem is so serious that the United Nations has identified single-use plastics as one of the world’s biggest environmental challenges of modern times”.[4] In this background, a natural question ascends that why then single-use plastics are not being completely banned? The answer is not simple. The manufacturers argue that why they should stop producing when there is a clear demand. Consumer lament that they do not have an equally good alternative. The options available are not only inconvenient but also economically unsustainable.  Then the end buyers may not carry the shopping bag every time they are at sale point – there could be unplanned purchases too. Of all the issues, the most pressing is that of lack of an eco-friendly product, which is a complete substitute of the plastic in all uses. Such product has not been found till date.[5] Paper bags are also not the solution. Firstly, the energy required to produce 500 grams of paper (used to make carry bag) is 300 times more than that required for a plastic bag and secondly, it cannot withstand weight and gets easily spoilt especially when it rains.[6] Paper bags are not mostly reusable. In the absence of a suitable alternative, therefore, it shall be impractical nay unwelcome step to impose a blanket ban on the use of plastics or on all items made of single-use plastics.

The increase in thickness of plastics as a Government measure, will have two substantial consequences. The thick plastic is costly to produce. This may lead to less production of plastic bags and even lesser purchase of such plastic bags. There are also chances that if the thickness of certain materials is increased, it will encourage people to re-use those, leading to less littering.

Punishments and Penalties

The production, sale and use of single-use plastic and pollution caused due to its littering is further directly connected to the penalties prescribed under the law and how strictly is the law  being implemented on ground. The sanction for violating the rules is provided in the Environment Protection Act, 1986 under which the two Rules i.e. Solid Waste Management Rules, 2016 and Plastic Waste Management Rules, 2016 have been formulated. The implementation, however, shall be done by local civic bodies’ who shall take decisions on punitive actions including fines and jail terms through the bye-laws.

Environment Protection Act

As per Section 15 of the Act, the contravention of the use of banned identified single-use plastic items may attract a penalty of imprisonment for a maximum term of five years or with maximum fine of Rs. 1,00,000/-, or with both. In case contravention continues, there may be imposed an additional fine which may extend to Rs. 5,000/- for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. The relevant section has been reproduced herein below:

15. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE ACT AND THE RULES, ORDERS AND DIRECTIONS.-

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.

Are penalties in operation?

Yes, they are. On July 1, 2022, when the nation-wide ban on single-use plastic items kicked in, Mr. Gopal Rai, Delhi Environment Minister said that the penalties for violating the ban will be imposed only after July 10, 2022. For a month, there shall also be a pre-planned pan-India awareness campaign from July 1 to July 31. Accordingly on July 10, in Delhi, a control room to monitor the implementation of the ban has been set up by the Delhi Pollution Control Committee (DPCC). Any complaint regarding violations can be made to the control room which shall transfer the complaint to the municipal bodies. Additionally, the Revenue Department and the Delhi Pollution Control Committee have respectively constituted 33 and 15 teams to ensure the enforcement of the ban across the State. Any violation shall attract a penalty under Environment Protection Act to be imposed by Revenue Department. The MCD shall separately take action as per the bye-law. Any grievances regarding the violations can also be lodged through the Green Delhi application of the Delhi Government or the “SUP-CPCB” application of the Central Pollution Control Board.

The Delhi Government, on 15th September, 2021, had separately notified Draft of Plastic Waste Management Bye-laws, 2021 applicable within the territorial limits of South Delhi Municipal Corporation, East Delhi Municipal Corporation, North Delhi Municipal Corporation, New Delhi Municipal Council and Delhi Cantonment Board.[7] The law defines penalties for various violations totaling to 19 as listed in Schedule-I of the draft bye-laws.

Some municipal bodies in other states like Tamil Nadu have been taking action under their bye-laws much before 1st July. Recently, a Division Bench of Madras High Court was told by the Greater Chennai Corporation that 47,961 shops were inspected and 20,056 kg of banned plastics seized by the authorities between August 19, 2021 and March 18 2022. The Court was informed by the officer of the municipal body that the repeat offenders would be liable for cancellation of their trade license. Such shops would be closed and sealed. The Municipal Corporation is also currently intensifying its endeavor to systematically dispose of the plastics and also create awareness amongst the traders and plastic manufacturers associations. The local body is also distributing cloth bags free cost.

The bye laws governing the functioning of local bodies, including municipal corporations and municipalities in Tamil Nadu – under which Greater Chennai Corporation works – (Chennai City Municipal Corporation Act, 1919, Tamil Nadu District Municipalities Act, 1920, Madurai City Municipal Corporation Act, 1971, and Coimbatore City Municipal Corporation Act, 1981) were amended in 2019 and immediately given assent by the Governor. As per the bye-laws, storage, supply, transport, sale and distribution of any of the 14 banned items, including carry bags, cups or plates, would attract a fine of Rs. 25,000 the first time, Rs. 50,000 the second and Rs. 1 lakh the third. Similarly, the use and distribution of such plastics in large commercial establishments, including grocery shops and pharmaceutical shops, would attract a fine of Rs. 1,000 the first time, Rs. 2,000 the second and Rs. 5,000 the third. For smaller traders, the fine amounts are nominal and they would be asked to pay Rs. 100 the first time, Rs. 200 the second and Rs. 500 the third. If a person commits the breach for a fourth time, the trade licence shall be cancelled.[8]

Conclusion

If one goes and sees Nehru Place market today, a prime location in South Delhi, the ground is littered with plastics. Ignore the buzz, if you can for a moment, the place looks like an abandoned one – abandoned by us not the Government. It makes one sad if not hopeless!

However, much has visibly also changed for good. We do not get polybags with vegetable and fruit vendors. Restaurants are using biodegradable/biodesposable  straws. Take-aways are not being given in single-use plastic boxes anymore.

As per a report, teams of the Delhi Pollution Control Committee (DPCC) and urban local bodies (ULBs) issued a total of 119 fines on 11.07.2022 amounting to Rs. 1.23 crore. The actions also lead to shutting factories and market units that were caught violating norms. The DPCC teams inspected 96 units, out of which 59 units were fined and closed. ULBs inspected 529 units across Delhi markets, of which 330 were found violating the ban and 60 were fined. A total fine amount of Rs. 30,000/- was collected by ULBs and around 16,359 kilos of banned SUP items were collected on 11.07.2022.[9]

The issue of plastics will clearly take some time to go but gone it will be in the light of government working in full vigour towards elimination of plastics in phases. The initiative taken by the Indian Government is not a papaya step. If seen against the fact that people have gone unemployed and have lost their businesses across the country in this process,[10] the initiative needs to be supported by one and all to make this worth – because when it comes to plastics that lasts perpetually in the environment, every plastic counts and so does the smallest of initiatives taken by individuals. But beyond these impacts, the ban is bound to also boost the R&D. Along with Government encouraging the innovations, the companies will also be forced to rethink their designs and sourcing of sustainable materials. It should also have a cultural impact where it should help shift consumer mind-sets into not using or littering plastics. In this light, at least one can see a silver lining in the background of the international and national efforts in process and intense work being undertaken at local levels and above all with consciousness of the people.

[1] https://www.breakfreefromplastic.org/2021/10/25/the-coca-cola-company-and-pepsico-named-top-plastic-polluters-for-the-fourth-year-in-a-row/#:~:text=October%2025%2C%202021%20%E2%80%94%20The%20Coca,for%20fueling%20the%20climate%20crisis.

[2] The list has been taken from https://newsable.asianetnews.com/india/india-plastic-ban-do-you-know-what-plastic-products-are-not-banned–resnbc

[3] For statistics please visit https://www.un.org/pga/73/plastics/

[4] https://www.un.org/en/un-chronicle/reducing-single-use-plastic-pollution-unified-approach

[5] In 2019 there has been an invention of a “fake plastic” by a woman by the name Sharon Barak who is a chemical engineer from Israel. Her product has 100% eco-friendly materials. It feels, looks and functions like plastic, but at the same time immediately dissolves in water. The most surprising part is that such water solution is potable. Her start-up runs by the name Solutum and is available at https://www.solutum.co/. The invention, whenever it comes in the market, may take the world by storm.

[6] https://www.deccanherald.com/special-features/increase-plastics-thickness-but-don-t-ban-them-kspa-767774.html

[7] Available at http://www.indiaenvironmentportal.org.in/files/file/Draft%20Plastic%20Waste%20Management%20Bye%20laws%202021.pdf

[8] https://www.thehindu.com/news/cities/chennai/penalties-for-violation-of-plastic-ban-announced/article26461249.ece

[9] https://www.hindustantimes.com/cities/delhi-news/delhi-govt-starts-issuing-penalties-for-violating-plastic-ban-rule-101657582400074.html]

[10] After the ban on single-use plastic in the state since 2016, over 2 lakh people have lost jobs directly, and the industry incurred a loss of Rs 800 crores so far. [https://www.deccanherald.com/special-features/increase-plastics-thickness-but-don-t-ban-them-kspa-767774.html]

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Understanding Plastic Ban In India And Worldwide: Part II

Environment

Why Ban Single-Use Plastic?

What we are surrounded with is fuel based plastic. As per UNEP, 98 per cent of single-use plastic products are produced from fossil fuel, or “virgin” feedstock. The production, use and disposal of conventional fossil fuel-based plastics alone contributes to a large amount of  greenhouse gas emissions associated which are predicted to grow to 19 per cent of the global carbon budget by 2040.

Being long chain polymers, plastics are most durable and the nature cannot break them down. They can only be recycled into other products. However, 90% of the plastic is never recycled as it is lost in rivers, seas and land litter.[1] In the environment it breaks up into smaller and smaller pieces called ‘micro plastics’ (maximum of 5 mm) and finally ends up getting into the food chain causing several health issues in ecosystem including grave effect on human health[2]. Most adversely affected is water due to leaching of additives, colorants, stabilizers and fillers present in the different categories of plastic products.[3] As on date, the EU Parliament has recorded that more than 80% of marine litter is plastic. Plastic accumulates in seas, oceans and on beaches in the EU and worldwide. Plastic residues are found in marine species – such as sea turtles, seals, whales and birds, but also in fish and shellfish, and therefore in the human food chain.

Half of the plastic produced and consumed worldwide (which is 300 million tons) is single-use plastic. Single-use plastic also forms large part of the litter that never goes for recycling because of small size of products they are used in (e.g. straws, bags, and cutlery etc.) Such small sized products made of single-use plastic are lost in soil, water/drainage or blown away by wind when littered, much faster than other plastics. It is also vital to understand that single-use plastic, specially cannot be recycled because the products made out of it are usually too small for the machines to process and they get stuck in the machines. The recyclers too, often, decline to accept and recycle such plastics in their facility.

Where all plastics are banned?

As per UNEP report[4], 127 out of 192 countries reviewed had adopted some form of legislation to regulate plastic bags as of July 2018. Among these countries, government interventions have been made varying from reduction in the manufacture, distribution, use and trade of plastics bags, imposing high tax on plastic manufacturing and setting recycling targets. The most common form of regulation, however, is the ban on free retail distribution, which 83 countries have adopted. 61 countries have adopted ban on manufacturing and import. 27 countries have enacted law imposing ban on single-use plastics — either on identified products (e.g. plates, cups, straws, packaging), materials (e.g. polystyrene) or production levels. Till 2018, however, none of these bans were “total”.[5]

In 2002, Bangladesh became the first country in the world to implement a ban on thin plastic bags, when it was found that they played a key role in clogging drainage systems resulting in disastrous flooding countrywide. Other countries began to follow suit.

Plastic bags have been banned in Rwanda since 2008, with strict policies that include luggage searches at the border where any plastic bags found are confiscated. Anyone found violating the plastic bag ban law may receive a fine or, in more serious cases, a prison sentence.[6]

The EU has acted against plastic pollution too. From July 2, 2021, single-use plastic plates, cutlery, straws, balloon sticks and cotton buds cannot be placed on the markets of the EU Member States. In addition, the same measure applies to cups, food and beverage containers made of expanded polystyrene, and all products made of oxo-degradable plastic. Oxo-degradable or “oxo”-biodegradable, are made of bio-additives, such as starch added to polyethylene (PE). These are often falsely marketed as being biodegradable, when they are only degradable.

Wondering about U.S. and China? US has not passed any law as on date despite the fact that the U.S. is one of the world’s largest producers of plastic waste. Out of the plastics littered, it recycles only 5-6%. A major part is exported to developing countries to recycle. As per the CNBC report[7] U.S. Interior Department[8] issued an order on June 8, 2022 to reduce the procurement, sale and distribution of such products and packaging.

China has imposed a limited ban on January 1, 2021 by prohibiting restaurants in the country from providing single-use plastic straws and stores from providing plastic shopping bags in the major cities.

Russia has not imposed banned on plastics yet.

INDIA

India has a whooping per capita plastic consumption of 11 kgs. The Central Pollution Control Board (CPCB) Report (2019-20) states that 3.5 million metric tonnes of plastic waste are generated in India annually. India generates 25,940 tons of plastic waste every day but collects only 60 percent of it.

India is attempting to phase out plastics with a legislative framework set out in 2016.

LEGISLATIVE FRAMEWORK

The first-ever law on waste management was in the form of the Municipal Solid Wastes (Management and Handling) Rules notified in 2000. Thereafter, the Government, under overarching campaign of “Clean and Green”, came up with Solid Waste Management Rules, 2016, Plastic Waste Management Rules, 2016 (PWMR), Plastic Waste Management Amendment Rules, 2018 and most recently, Plastic Waste Management Amendment Rules, 2021 and Plastic Waste Management Amendment Rules, 2022.

Solid Waste Management Rules, 2016 for the first time provided for “extended producer responsibility” (EPR) denied under section 3(21) to mean “responsibility of any producer of packaging products such as plastic, tin, glass and corrugated boxes, etc., for environmentally sound management, till end-of-life of the packaging product.”

Plastic Waste Management Rules, 2016/PWMR were made by the Ministry of Environment, Forest and Climate Change and notified on March 18, 2016[9] in exercise of the powers conferred by sections 3, 6 and 25 of the Environment (Protection) Act, 1986. These were in supersession of the Plastic Waste (Management and Handling) Rules, 2011 published by the Government of India in the erstwhile Ministry of Environment and Forests.

The PWMR, under Rule 4, sets conditions on manufacture, import, stocking, distribution, sale and use of carry bags, plastic sheets or like, or cover made of plastic sheet and multilayered packaging. The PWMR separately defines “carry bags” under Rule 3(c) to mean “bags made from plastic material or compostable plastic material, used for the purpose of carrying or dispensing commodities which have a self carrying feature but do not include bags that constitute or form an integral part of the packaging in which goods are sealed prior to use.” “Multilayered packaging” as per Rule 3(n) means “any material used or to be used for packaging and having at least one layer of plastic as the main ingredients in combination with one or more layers of materials such as paper, paper board, polymeric materials, metalised layers or aluminium foil, either in the form of a laminate or co-extruded structure.”

The conditions that have been imposed under Rule 3 of PWMR are:

  • Carry bags to be in natural shade with no or only BIS approved added pigments/colorants.
  • Carry bags or products made of recycled plastic not to be used for storing, carrying, dispensing or packaging ready to eat or drink food stuff.
  • carry bag made of virgin plastic (i.e. plastic material which has not been subjected to use earlier and has also not been blended with scrap or waste) or recycled plastic, shall not be less than 50 microns in thickness.
  • plastic sheet or like, which is not an integral part of multilayered packaging, not to be less than 50 microns in thickness except where the thickness of such plastic sheets impair the functionality of the product.
  • the manufacturers have been restricted from selling or providing or arranging plastic to be used as raw material to an unregistered producer. Rule 13 of the PWMR provides for registration of producers, recyclers and manufacturers.
  • sachets using plastic material not to be used for storing, packing or selling gutkha, tobacco and pan masala. It is a blanket ban. New packaging made of aluminium and paper has been introduced for packing gutkas instead.
  • recycling of plastic waste to conform with the BIS.
  • The provision of thickness shall not be applicable to carry bags made up of compostable plastic. As per Rule 3(e) “compostable plastics” mean “plastic that undergoes degradation by biological processes during composting to yield carbon dioxide, water, inorganic compounds and biomass at a rate consistent with other known compostable materials, excluding conventional petro-based plastics, and does not leave visible, distinguishable or toxic residue”.
  • plastic material, in any form including Vinyl Acetate – Maleic Acid – Vinyl Chloride Copolymer, shall not be used in any package for packaging gutkha, pan masala and tobacco in all forms.

Rule 5 addresses the issue of Plastic Waste Management through recycling by plastic waste recycler, local bodies encouraging the use of plastic waste – preferably the plastic waste which cannot be further recycled – for road construction as per Indian Road Congress, disposal of thermo set plastic waste and disposal of inert from recycling or processing facilities of plastic waste.

‘Thermoset polymers’ or ‘inert waste’ was not defined in the Rules initially.  It was only in 2021 that the definition of “Thermoset plastic”was introduced by way of amendment. ‘Thermoset polymers’ are material, especially, a synthetic plastic or resin that hardens permanently after one application of heat and pressure. These polymers are found in car parts and electrical appliances and thus, have to be durable and heat-resistant. However, typically these cannot be easily recycled or broken down after use.

Inert waste, as different from hazardous and non-hazardous waste, is waste which is neither chemically nor biologically reactive. This in turn means that it takes a long time to dispose of and sometimes it does not get decomposed at all. However, it is not dangerous to health. The problem however lies elsewhere. This kind of waste takes a lot of space and since it takes a long time to decompose or does not decompose at all, it just occupies space. The inert waste would include concrete, rubble, sands, clay, soil and chalk.

The PWMR also make local bodies liable for segregation, collection, storage, transportation, processing and disposal of the plastic waste, to see that no damage is caused to the environment during this process, creating awareness among all stakeholders, engaging civil societies or groups working with waste pickers and ensuring that open burning of plastic waste does not take place.

The most notable feature of the Rules is that it extends the liability to the Gram Panchayats. This is because it is only recently that the plastics, on account of the mini and micro packaging and sachet/pouch culture have found its way to the villages in India.

The PWMR separately impose responsibility on waste generators to minimize generation of plastic waste and segregate plastic waste at source and ensure segregated storage of waste at source and handover segregated waste to urban local body or gram panchayats or agencies appointed by them or registered waste pickers’, registered recyclers or waste collection agencies. All waste generators are required to pay ‘user fee or charge’ as may be specified in the byelaws of the local bodies for plastic waste management such as waste collection or operation of the facility. The waste generators also include every person organizing an event in open space, which involves service of food stuff in plastic or multilayered packaging. Such person is required to segregate and manage the waste generated during such events as per Rule 8(4) of the PWMR.

Rule 9 provides for the responsibility of the producers, importers and brand owners to register itself under the Rules. As per the Rules, the primary responsibility for collection of used multi-layered plastic sachet or pouches or packaging is of producers, importers and brand owners who introduce the products in the market. They need to establish a system for collecting back the plastic waste generated due to their products. The manufacture and use of non- recyclable multilayered plastic, if any, by the producers, importers and brand owners is required to be phased out in two years time.

Retailers and street vendors are prohibited under PWMR to sell or provide commodities to consumer in carry bags or plastic sheet or multilayered packaging, which are not manufactured and labelled or marked, as per prescribed under the Rules. Plastic carry bag is to be provided by only those vendors that are registered. Carry bags in such shops shall be chargeable.

What essentially the Plastic Waste Management Rules, 2016 has done is also to increase the minimum thickness of plastics to 50 micron and then 75 microns for plastic sheets, to facilitate collection and recycle of plastic waste, expand the applicability to rural areas, introduce responsibilities of producers and generators in plastic waste management including their registrations for monitoring them, to promote use of plastic waste for road construction, introduction of Extended Producer Responsibility on the producers (i.e persons engaged in manufacture, or import of carry bags, multi-layered packaging and sheets or like and the persons using these for packaging or wrapping their products) and brand owners, and restrictions on retailers and street vendors for giving out plastics carry bags amongst other things.

Plastic Waste Management (Amendment) Rules 2018[10] were notified on March 27, 2018. It added the definition of “alternate use” to mean “use of material for a purpose other than for which it was conceived, which is beneficial because it promotes resource efficiency”. It also added the definition of “energy recovery”. Multi-layer plastics were further explained as ones that are not only non-recyclable but also non-energy recoverable and with no alternative use.

Plastic Waste Management Amendment Rules, 2021[11], notified on August 12, 2021, introduced definitions of “Single-use plastic commodity”, “Thermoset plastic” and “Thermoplastic”. The amendments prohibited the use of plastics of less than seventy five microns in thickness with effect from the 30th September, 2021 and one hundred and twenty (120) microns in thickness with effect from the 31st December, 2022. It additionally placed two more conditions in PWMR that the manufacture, import, stocking, distribution, sale and use of identified single-use plastic items including commodities made of polystyrene and expanded polystyrene, shall be prohibited with effect from the 1st July, 2022 which included ear buds with plastic sticks, plastic sticks for balloons, plastic flags, candy sticks, ice-cream sticks, polystyrene [thermocol] for decoration, plates, cups, glasses, cutlery such as forks, spoons, knives, straw, trays, wrapping or packing films around sweet boxes, invitation cards, and cigarette packets, plastic or PVC banners less than 100 micron and stirrers. It is also stated in the 2021 Amendment Rules that if there is any further notification which will prohibit the manufacture, import, stocking, distribution, sale and use of carry bags, plastic sheets or like, or cover made of plastic sheets and multilayered packaging and single-use plastic, including polystyrene and expanded polystyrene, commodities, issued after this notification, it shall come not come into force before the expiry of ten years from the date of its publication.    

Plastic Waste Management (Amendment) Rules, 2022[12]

The Ministry of Environment, Forest and Climate Change on 16.02.2016 notified the Guidelines on the Extended Producer Responsibility for plastic packaging vide Plastic Waste Management Amendment Rules, 2022. Directions have been issued to E-commerce companies, leading single use plastic sellers/users, and plastic raw material manufacturers with respect to phasing out of identified single use plastic items. EPR is a kind of reverse collection system to be followed by producers and is based on the established principle of ‘Polluter Pays’.

What is banned in India?

India has banned[13] manufacture, import[14], stocking, distribution, sale and use of identified single use plastic items, which have low utility and high littering potential, all across the country from July 1, 2022. This means if you have single use plastic at home, you cannot use it. You also cannot give it to vendors to use it. Keeping at home may also be considered as stocking. The ban is, however, not blanket ban on single-use plastic items but certain items that have been identified in the notification by the Government. They are Ear buds with plastic sticks, Plastic sticks for balloons, Plastic flags, Candy sticks, Ice-cream sticks, Polystyrene (Thermocol) for decoration, Plastic plates, Cups, glasses, cutlery such as forks, spoons, knives, straw & trays, Wrapping or packing films around sweet boxes, Invitation cards, Cigarette packets, Plastic or PVC banners less than 100 micron and stirrers.  

As on March, 2022, states of Uttarakhand, Uttar Pradesh, Tripura, Tamil Nadu, Sikkim, Rajasthan, Punjab, Nagaland, Maharashtra, Madhya Pradesh, Lakshadweep, Karnataka, Jharkhand, Himachal Pradesh, Haryana, Delhi, Daman Diu & Dadra  Nagar Haveli, Chhattisgarh, Chandigarh, Bihar, Assam, Arunachal Pradesh and Andaman & Nicobar Islands had imposed compete ban i.e. complete ban on manufacture, store, import, distribution, transportation, recycle, sell and use of plastic carry bags.[15] Assam has imposed ban on Plastic carry bags, banners, buntings, cups, cling films, flex, flags, plates, sheets (used for spreading on dining tables irrespective of thickness) including the above items made of thermocol and plastic which use plastic micro beads. Delhi has imposed complete ban on manufacture, import,store, sell & use of plastic products (poly Propylene, non-woven fabric type carry bags), plastic film or plastic tube to pack or cover any book including magazine & invitation/greeting cards.

State of Kerala has imposed the ban on large number of item i.e. complete ban on the manufacture, storage, transport and sale of plastic carry bags( irrespective of thickness); plastic sheets( used as table spread); plates, cups and decorative materials made of thermocol/stryrofoam; SUP items like cups, plates, dishes, spoons, forks, straw, stirrer; plastic coated paper cups, plastic coated paper plates, plastic coated paper bowls, plastic coated paper bags; Non woven bags, plastic flags, plastic bunting; plstic water pouches, non branded plastic juice packets ; plastic juice packets; PET/PETE bottles of drinking water of capacities less than 500 ml; garbage bags (plastic); PVC flex materials and plastic packets.[16]

[1] Global recycling percentage is as low as only 9 per cent as per the Indian Government Notification.

[2] A detailed article on impact of plastics on human health is written by Neeti Rustagi, S. K. Pradhan, and Ritesh Singh and is available at  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3299092/

[3] A complete report has been prepared by UNEP and is available at https://www.unep.org/resources/report/water-pollution-plastics-and-microplastics-review-technical-solutions-source-sea; A quick read can be found at https://www.unep.org/news-and-stories/story/plastic-planet-how-tiny-plastic-particles-are-polluting-our-soil;

[4] Legal Limits on Single-Use Plastics and Microplastics: A Global Review of National Laws and Regulations published in July 2018.

[5] Exceptions exist for certain products or materials, such as for so-called biodegradable plastics.

[6] https://plasticoceans.org/rwanda-plastic-bag-ban

[7] https://www.cnbc.com/2022/06/08/us-to-ban-sale-of-single-use-plastic-on-public-lands-national-parks-by-2032.html#:~:text=Group%20%7C%20Getty%20Images-,The%20U.S.%20Interior%20Department%20said%20on%20Wednesday%20it%20will%20phase,recycling%20rate%20continues%20to%20decline.

[8] https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3407.pdf

[9] https://pib.gov.in/newsite/printrelease.aspx?relid=138144#:~:text=Based%20on%20the%20recommendations%20of,properties%20lead%20to%20commercial%20success.

[10] https://cms.pib.gov.in/WriteReadData/userfiles/PWMnotification%201%20001.pdf

[11] https://static.pib.gov.in/WriteReadData/specificdocs/documents/2021/aug/doc202181311.pdf

[12] file:///C:/Users/HP/Downloads/233568.pdf

[13] Please see for details: https://static.pib.gov.in/WriteReadData/specificdocs/documents/2022/jul/doc20227169001.pdf

[14] An instruction dated 22.06.2022 bearing no. 09/2022  was separately sent by the Ministry of Finance to Commissioner of Customs for restriction on import of products made of plastic.

[15] https://www.pib.gov.in/PressReleseDetail.aspx?PRID=1807646

[16] https://www.pib.gov.in/PressReleseDetail.aspx?PRID=1807646

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