PLASTIC POLLUTION AND LAWS IN INDIA: AN ANALYSIS
Author: Harsh Namdeo, II year of B.A.,LL.B.(Hons.) from Hidayatullah National Law University
Throughout the long period of time of earth’s existence and human subsistence, everything around the earth has witnessed drastic change from living in caves to living in concrete jungles, and from using wooden axe to using iron electric cutters, humans have achieved highest growth rate amongst any of the living beings on earth. Although, contribution of environment in growth of human cannot be neglected. it has not only provided natural resourcefor manufacturing of secondary goods and services but it has also provided the necessary environmental conditions for safe existence of humans. In this long journey with earth, human have returned to earth only exploitation and destruction, either it is because of zeal for development of science and technology or for economic benefits.
There are various types of environment pollution such as- air pollution, water pollution, sound pollution, etc. and various causes of pollution like- anthropogenic, natural, chemical, etc. and impact of each of them varies, but one such pollution which not only causes short term environment degradation but long-term degradation and has far reaching consequences is plastic pollution as it causes harm to marine life in oceans, soil degradation, health hazards to birds and mammals, etc. and contributes a large part of anthropogenic causes of pollution. therefore, to deal with its parliament and different state legislators have come up with laws to regulate the use of plastic, although these laws have been successful in regulating the use of plastic to a larger extent, but still there are lot of legal loopholes and lack of enforcement on the part of executive, even after long-haul process of evolution of anti-plastic laws in India. This piece of work deals with the issue of plastic pollution in India and endeavours to trace the evolution of laws regulating use of plastic in India, with the help of various reports, recommendation of committees and relevant judicial pronouncements to provide broader perspective to the issue.
History of plastic
Although we see plastic today in almost every aspect of our life but origin of plastic is not very old, it made way to our life only in year 1862 for the first time discovered by Alexander Parkes. What made it necessary to invent material such as plastic is large scale extinction of animals because of poaching for ivory and animal leather which was earlier used for water-proofing and storing of liquid commodities, it was marketed as an alternative to ivory and horn and was named as “parkeshine” to show its relevance in saving wildlife. With the passage of time some other types of plastics were invented such as Bakelite in year 1907, polymers in 1920, and many more according to different set of purposes.During world war I and World War II, it gained huge market in Europe and America as soldiers and army man used them to carry food, weapons andsuch items which cannot be carried earlier. In 1960’s and 70’s some other forms of plastics were introduced, and it was during this period that plastic entered different aspects of our life such as making of utensils, jugs, bottles, etc. and also polymers were used for making synthetic clothes which contributed to its widespread popularity of plastic around the world. The gold-film visors of Apollo-era space suits were made of the polysulfone thermoplastic family, which was launched in 1965.Kevlar, or para-aramid synthetic fibre, was invented in 1965 and was first utilised in the racing sector to replace steel in racing tyres, but it has since found numerous other modern applications, most notably in bulletproof vests.
Single use plastics
To put it simply, single-use plastics are plastics which are made up purely of fossil fuel–based chemicals (petrochemicals) and are intended to be discarded immediately after use- often within minutes. The simple examples of single use plastics are- Bottles, wrappers, straws, and bags.Single use plastics are used in packaging and service ware primarily because of its less cost and easy availability.
Why there is a continuous increase in use of plastic?
The increased use of plastic is owing to its advantageous qualities as compared to other materials, some of which includes:
Plastic is extremely adaptable and may be modified to meet unique technological requirements. Example- thickness of plastic can be increased or decreased according to choose, to increase durability and materials such PVC can be made in order to increased its strength.
Less transportation cost compared to other competing materials such as- wood, ivory, etc.
Longevity and durability of plastics makes it fit for use in durable goods such as cars, chairs, electronic items, etc.
Why plastic is a cause of concern?
Plastic is amongst one of the top pollutants on the surface of earth and Plastics manufacturing also involves the addition of potentially hazardous chemicals as stabilisers or colourants thus making them chemically active therefore, when they decompose, they release chemicals which can alter the native flora and fauna negatively.
One example is phthalates, “which are one of the catalysts used in the manufacture of PVC. PVC has previously been used in toys for young children, and there have been concerns that phthalates may be generated when these toys are swallowed. The disposal of plastics products also has a significant environmental impact. Most plastics are non-biodegradable, and they might take a long time to degrade once they've been dumped. The amount of burial area required by plastic rubbish is becoming a big concern as an increasing number of plastic products, particularly plastic packaging, are abandoned immediately after purchase”.
International conventions on use of plastic
As world has witnessed tremendous growth in use of plastic in recent decades it had became a point of concern not only for India but for the world community. Therefore, United Nations plays a significant role in combating plastics after assessing its threat to society, and world community of both living beings and plants. The United Nations has taken a number of steps to raise public awareness and make recommendations to reduce single-use plastic waste. Also, under the aegis of united nations various conventions have been signed to combat environment and plastic pollution. Some of the conventions were as follows:
In year 1989, the United Nations Environment Programme (UNEP) came up with Basel Convention which was aimed at controlling and regulating the transboundary movement of hazardous substances. The Basel Convention is the first effort to reach agreement on worldwide norms for toxic waste, including the trading and disposal of plastic and polythene waste.
The Conference of the Parties (COP) established three goals: (1) to reduce the generation of hazardous waste (2) to reduce trade of waste amongst countries and (3) to set up a regulatory regime for instances where transboundary wastes are permitted.
There are 188 members to this treaty, and the treaty establishes obligations and protocols for parties to prevent internationaltransportation of plastic waste. The prerequisites for parties to adopt the Prior Informed Consent (PIC) approach are outlined in Article 4on general duties. “Importers and exporters of the identified wastes must create communication mechanisms to address the fabrication and transfer of dangerous items.it also forbids the transport of wastes to and from non-parties (Article 4.5)”.“In addition, each party should have procedures in place to ban and penalise illegal trafficking in harmful substances”.
ENFORCE (environmental network for optimizing regulatory compliance on illegal traffic)
The 11th Congress created the “Environmental Network for Optimizing Regulatory Cooperationon Illegal Traffic to encourage party members' compliance with the convention (ENFORCE)”. It strives to organise and deepen collaboration, as well as to enforce the standards put in place to prevent trafficking of hazardous waste.
ENFORCE in order to achieve this goal promotes dialog amongst the member nations, promotes transparency, and support preventive actions.Along with this it develops project roadmaps and training materials to help members in their initiatives.
The Basel Convention established the COP in Article 15 and the secretariat in Article 16 to strengthen the Basel Convention's efficacy and accountability. “Under the auspices of the UNEP, the secretariat provides logistical support for the Basel Convention's implementation. In addition to developing policy, the COP organises meetings at which the parties review the convention's implementation and suggest new amendments”.
E-waste is also addressed in the Basel Convention (discarded electronics or electronic gadgets reaching the end of their "useful life"). According to research conducted by the Basel Action Network (BAN), a voluntary organisation dedicated to Basel compliance, there is a widespread practise of "scam recycling," which refers to the illegal shipment of e-waste to developing countries. In most cases, importing countries lack sufficient recycling technology skills, resulting in rubbish being dumped in fields and rural areas.
Amendment of 2021
With increasing concern over plastic and hazardous wastes treaty lacks the adequate definition of Plastic garbage. To deal with this problem and to increase the scope of applicability, the COP decided to alter the treaty to include plastic among the “protected wastes”. To address the trade in plastic waste, amendments to “Annexes II(this annex now includes all plastic waste, especially mixed plastics), VIII (containing hazardous plastic waste), and IX (non-hazardous plastic waste meant for recycling)” were introduced on January 1, 2021.
With this set of modifications, the parties have created the first legislation that is solely focused on plastic trash. However, trade limitations for non-party members are the most significant change brought about by the changes. Previously, “the convention's regulations allowed parties to swap plastic garbage with non-parties. The new addendum prohibits parties to the agreement from negotiating with non-parties on certain plastic trash and scraps (subject to the PIC procedure)”. “The only exception to this rule is Article XI, which allows members to enter into agreements with non-parties”.
United nations environment programme works in collaboration with various stakeholders to formulate mutual agreements to control pollution, Intergovernmental panel on Climate Change in its fourth Assessment Reportstated that Ocean fertilization poses risk to the marine life which refers to “climate engineering technique used to remove carbon dioxide from the atmosphere through the artificial introduction of nutrients to the surface of the ocean”. As it results in change in basic nature of ocean water.[i]Plastic when it decomposes, in a similar fashion causes unnecessary hazardous chemicals to be added into the ocean water causing risk to marine life. Also, use of microplastic in different products results in changes in basic structural components of natural species thus resulting in their degradation.
Anti-plastic laws in India
Plastic shares a large chunk of waste in India, also being a developing country use of plastic is economically sustainable thus contributing to pollution. To deal with the issue of plastic pollution various campaigns have been started in India, first by social and environment protection organisation then by government but taking into consideration increasing threat of plastic, different legislative bodies in India came up with various legislations to regulate the manufacturing side of plastic pollution by putting restrictions and laying down provisions for manufacturing of recyclable plastics.
The Environment (Protection) Act, 1986
The basic principles of this legislation were proclaimed at the United Nations Conference on the Human Environment (UNCHE) in Stockholm in year 1972, to take suitable measures in order tofacilitate development and betterment of environment. This act is a comprehensive legislation covering most of the aspects of environment protection such as- emission standards for industries, handling of hazardous substances and chemicals, wildlife protection, etc. to mention few of the provisions of act related to plastic pollution:
Section 3 of The Environment (Protection) Act, 1986allows Central Government, to take “all such measures as it deems necessaryfor the purpose of protecting and improving the quality of the environment” and preventing controlling and abating environmental pollution which include the banning of different grades of plastic products such as single use plastic including polystyrene and expanded polystyrene.
Section 5 of EPA, 1986 provides the power to central government to provide directions in form of notification in official gazette to closure, prohibition, or regulation of industry or process or operations of it.
Section 8 of the Environment (Protection) Act of 1986 requires those who work with hazardous substances to follow procedural protections that the government specifies from time to time.[ii]
“The central government has the authority underSection 25 of the Environment (Protection) Act, 1986, to make rules for carrying out the Act's purposes, such as the standards above which environmental pollutants must not be discharged or emitted, the safeguards in place for which hazardous substances, and so on”.
The Plastic Waste (Management and Handling) Rules, 2011
Under provisions of environment protection act, 1986 government from time-to-time releases detailed guidelines according to contemporary situation.on similar lines plastic waste (management and handling) rules, 2011 was released with specified detailed condition for carry bags as follows:
Carry bags shall be manufactured only either in natural shade with no excessive chemical components or made up of only those chemicals and pigments as specified and are in conformity with Indian standards.
Manufacturing of new or recycled or compostable plastichaving thickness of less than 40 microns is prohibited.
Recycled carry bags should confirm Indian standard IS 14534:1998as mentioned in Guidelines for Recycling of Plastic.
The plastic waste management rules also contained some other rules which are:
Recycling, recovery or disposal of plastic waste shall be carried out as per the rules, regulationsand standards stipulated by the Central Government”.
Recycling of plastics shall be carried out in accordance with the Indian Standard.
Under this act every local government is responsible for setting-up, operationalisation and co-ordination of the waste management system.Karuna Society for Animals & Nature v. Union of India (UOI)[iii]court stated that “the municipal Committee should not only devise methods and means for efficiently implementing the Rules, but also ensure that these Rules are taken seriously by the various stakeholders” thus, imposing liability upon government to effectively implement rules.
The local council may request that companies and small manufacturing units to create plastic garbage collection facilities, either collectively or individually, in accordance with the concept of Extended Producer Responsibility (EPR), and to provide the necessary funding.
It also included a registration process for producers or recyclers, requiring “anybody making or planning to manufacture carry bags and multi-layered plastics to apply to the State Pollution Control Board (SPCB) and Pollution Control Committee (PCC) for registration or renewal”.
It further stipulates that each SPCB has to prepare and submit an annual report to the Central Pollution Control Board, as well as compile and submit a consolidated annual report to the Central Government at the end of every year.
Plastic Waste Management (Amendment) Rules, 2018
The Central Government has notified the Plastic Waste Management (Amendment) Rules, 2018 in order to exercise the powers conferred on it by sections 3, 6 and 25 of the Environment (Protection) Act, 1986, and to supersede the Plastic Waste (Management and Handling) Rules, 2011. Every trash generator, local body, Gram Panchayat, manufacturer, importer, and producer is subject to these restrictions.
These rules for the first time introduced some new norms and in order to coup up with the emergence of new types of plastic wastes such as- electronic goods. Some of the important features of this rule includes:
It defines the concept of “extended producer’s responsibility” which means the responsibility of a producer for the environmentally sound administrationof waste released not only during the manufacturing of product but also upon use by consumer and its conversion to waste. Therefore, imposing liability upon the producer to use “recyclable materials”during production or to make adequate arrangements for recycle.
It has also imposed certain Conditions on manufacture, importer stocking, distribution, sale and use, material other then plastic for the package of products and to avoid multi-layered packaging thus reducing the amount of waste released.
Carry bag made of virgin or recycled plastic, shall not be less than 50 microns in thickness so that micro plastic cannot enter into marine ecosystem or food products[iv].
The specific Responsibility has been put uponlocal governments and private waste to make arrangements for disposal of waste.
It was held in M.C. MEHTA v. UNION OF INDIA[v] that Article 51A(g) confers duty on individuals to “protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures” and when individual citizens wilfully pollute the environment by throwing plastic in rivers and lakes, they are violating their fundamental duties.
Plastic waste management (Amendment) rules, 2021
Due to presence of various lacunas in earlier amendment and to deal with evolving challenges another amendment was brought to The Environment (Protection) Act, 1986came to be known as Plastic Waste Management (Amendment) Rules, 2021.
In this amendment,“a prohibition on the manufacture, use, sale, import, and handling of some single-use plastic items be imposed, in light of the high environmental costs associated with single-use plastics management, particularly the negative impact on the marine environment, and the need for a definitive action to supplement the initiative undertaken by various States/UTs to combat plastic pollution”.
This will limit the use of certain single-use plastic goods with low utility and high littering potential by 2022. India has pledged to take steps to prevent pollution caused by strewn single-use plastics. At the 4th United Nations Environment Assembly in 2019, India proposed a resolution on combating single-use plastic pollution, recognising the urgent need for the international community to act on this crucial issue. The adoption of this resolution at UNEA 4 was a significant step forward.
It was further provided that “the manufacture, import, stocking, distribution, sale and use ofsingle-use plasticincluding polystyrene and expanded polystyrene, commodities shall be prohibited” but this was kept only for plastic having size of less than 100 micron.
To reduce generation of waste caused by lightweight plastic carry bags, the width of plastic carry bags has been increased from fifty microns to seventy-five microns and finally to one hundred and twenty microns. Because of the increase in thickness, this will also allow for the reuse of plastic carriers.
“According to the Plastic Waste Management Rules, 2016, plastic packaging waste that is not covered by the phase-out of identified single-use plastic items must be collected and managed in an environmentally sustainable manner under the Extended Producer Responsibility of the Producer, Importer, and Brand Owner”. The Guidelines for Extended Producer Responsibility, which were recently released, have been granted legal force by the PlasticWaste Management Amendment Rules, 2021, in order to ensure successful implementation of Extended Producer Responsibility.
The Swachh Bharat Mission involves strengthening waste management and recycling in the states and union territories. In addition, initiatives have been implemented to promote the implementation of the 2016 Plastic Waste Management Rules and to minimise the use of marked single-use plastic items: States and territories have been requested to organise a Special Task Force to reduce single-use plastics and oversee the effective execution of the 2016 Plastic Waste Management Rules. The Ministry of Environment and Climate Change has also established a National Level Taskforce to coordinate efforts to eliminate designated single-use plastic items
Sin-Tax on plastic products
Imposing a tax on plastics is an effort and an essential approach to minimise the use of plastics that comes into effect on January 1, 2019 in Tamil Nadu, making Maharashtra the 26th state in India to do so. As offenders must pay a high tax that covers both polluters ruining the environment and manufacturers compensating the disposal waste rate, polluting has become a sin. Similarly, today's decreasing cigarette usage demonstrates that it works globally.[vi] Plastics must be heavily taxed to guarantee that they are not dirt cheap and so handy. That it allows other materials to compete.The current rate of GST on plastics is 18% or less. If the GST on plastics is raised to 28%, the additional money generated might be worth roughly Rs 20,000 crore per year. Such monies would be adequate for the Centre and states to begin developing a scalable programme to control plastic trash. The tax on polyethylene is seen as a "sin tax," and it would aid in the creation of a fund basis for managing the massive amount of solid waste that we create today.The OC tax (also known as the GST or excise/VAT on plastics) must be raised. Plastics used in everyday lifeCarbon, hydrogen, nitrogen, and oxygen-containing materials (such as polyester, PET, and nylon) canbe charged at the lowest level possible because they produce far less harm and have the ability to biodegrade. Then, Polyethylene and isotactic polypropylene should be taxed moderately since source separation and burning of these polymers under oxygen-rich circumstances can be utilised to create energy, which accounts for 50% of the plastics due to their manufacturing and use.
Throughout the history of environmental laws in India and around the world, most of the legislations were made on the conventional types of pollutions such as- air pollution, water pollution, soil pollution, etc. but recent decade saw an emergence of new categories of pollutants having multiple facets and are responsible for degradation of environment as a whole thus leading threat to earth and other living beings and one such category of anthropogenic pollutant is plastic which has multiple disadvantages over natural materials therefore, various general assemblies are coming up with concrete plans to tackle the issue of plastic. In furtherance to these various conventions have been signed in international forums such as United nations so that a worldwide consensus can be developed and issue can be dealt. India is also a signatory to many of these conventions, one being bassel convention and thus enacted various domestic laws to tackle plastic pollutions. These laws were subjected to continuous amendments to make them compatible with existing situation and according to the needs to achieve the targets of international conventions. The most recent amendment done to the rules was in year 2021 specifically dealing with the issue of single use plastic, its prohibition, and introduction of concept of “extended producer liability” to ensure that only recyclable plastics enter into market and they can also be disposed of, after fulfilment of specific purpose. Various authorities were also created to look into the implementation of anti-plastic laws and were given powers to regulate, prohibit and administer the supply of plastic into market and its quality. But without the consumer awareness and strict compliance by manufactures goals relating to hazardous plastic cannot be realized. Therefore, awareness programmes and strict enforcement is only way to deal with the matter accompanied by legislative framework.
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