SARITA AGNIHOTRI Vs. STATE OF M.P.

JUDGEMENT

(1.) THE petitioner, the President of an organisation called 'People for Animals' as pro bono publico has preferred this writ petition under Article 226 of the Constitution of India to issue a writ in the nature of mandamus commanding the respondents to direct all the Collectors of the districts to issue orders forthwith banning the sale and consumption of polythene bags and other polythene materials, and to pass such other order/orders as may be deemed fit and proper in the facts and circumstances of the case. The factual score as depicted in the petition is that the petitioner is involved in the propagation of welfare measure for the life of animals. She is qualified in the Special Cultivation Techniques for growing wild medicinal plants in farms and gardens and received training in various national institutes viz. C.S.I.R. and tribal villages in the dense forests of Mandla district. She is also trained in 'Pranik Healing' and is an active social worker. It is set forth that she is the author of many an articles relating to hazards caused by polythene bags and the effects by use of such bags to the health and life of animals as well as human beings. She has represented to the authorities of the execution for banning the sale and use of the polythene bags in the Kanha National Park highlighting the effects of these articles on the grazing animals. According to the writ petitioner there has been realisation of the adverse effects of polythene material which is insoluble and undestroyable. Such realisation has led many State Legislatures to come up with legislation banning the use of recycle of these polythene materials. It is put forth that the Central Government has framed rules called The Recycled Plastics Manufacture and Usage Rules, 1999 (hereinafter referred to as 'the Rules') and the said Rules has prescribed certain standards. It is put forth that polythene bags and other plastic materials made out of insoluble and undestroyable cannot be converted into wastage products because of its very nature. It remains in the atmosphere even after being destroyed and the animals are badly affected by filthy material which is swallowed by them, as a result of which the digestive system gets affected leading to the inevitable result of death of animals. An instance has been given in Joteshwar near Narsinghpur where an elephant was operated and about 100 Kgs. of polythene was found in its stomach, which caused the death of the elephant. With these averments prayer has been made, as has been indicated hereinabove. At this juncture it is worthwhile to state that when the matter was listed on 7 -3 -2003 it was submitted by the petitioner who appeared in person that the Secretary, Health Services, Government of M.P. and Secretary, Environment, Government of M.P., Bhopal, should be impleaded as respondent Nos. 4 and 5 and the prayer was accepted and the said authorities were impleaded as respondent Nos. 4 and 5. A reply has been filed by the respondent Nos. 1, 3, 4 and 5 who are the functionaries of the State. It is asserted in their counter affidavit that the claim of imposition of total ban by the petitioner has not been supported with any data. It has also been put forth that the Central Government has framed rules pursuant to the powers conferred on it by clause (viii) of sub -section (2) of section 3 read with section 25 of the Environment (Protection) Act, 1986. Certain rules have been referred in the return highlighting how there is prohibition of recycled plastics relating to storing, carrying, dispensing or packing of foodstuffs and how certain conditions are provided for the manufacture of carry bags and containers made of plastics. It is set forth in the return that a meeting had been convened by the Chief Secretary wherein the secretaries of the Department of Urban Administration and Development, Housing and Environment, Public Health and Family Welfare, the Principal Secretaries of respective Departments and the Chairman, M.P. Pollution Control Board were also present. After due deliberation it has been decided that the Pollution Control Board which had procured micron gauge meters would be used at the district level for checking thickness of polythene bags. It has been set forth that a report has been received indicating that plastics bags less than 20 microns are being manufactured and the Pollution Control Board has been actively involved in ensuring that the norms are complied with. Emphasis has been laid on public awareness. A reference has been made to the letter dated 14 -2 -2002 issued by the Minister, Housing and Environment to all the Mayors, President of Panchayats and District Collectors pointing out the dangers and menace of use of polythene bags by the society. On 2 -7 -2002 a letter had been written to the Secretary, School Education and Board of Secondary Education, Bhopal calling upon the said authorities to use their good office for apprising even at school level the dangers and menace being callous in the use of polythene bags. A suggestion was made by the M.P. Pollution Control Board for constituting a checking squad at the district level for the effective and proper implementation of the rules framed by the Central Government and the said checking squad is comprising of two officers from the office of the District Collectors and one from the concerned Regional Office of the Pollution Control Board. Correspondences had been going on between the State Government and the local self authorities for developing a sense of awareness. While so stating the stand has also been taken that a book has been published by the Indian Centre for Plastics Engineering and Technology, Chennai, to highlight about the utility of wide varieties of plastic products and also about biodegradation and disposal practices including recycled plastics. Indispensable use of plastic bags in certain spheres has been emphasised. It is also put forth that steps have been taken to curb the use of plastic bags in National Parks, forest areas so that disposed of bags are not consumed by animals. A return has been filed by the respondent No. 2, M.P. Pollution Control Board, stating that the Central Government has framed rules and under the rules the State Pollution Control Board has been made the prescribed authority for enforcement of the provisions of the rules relating to manufacture of recycled plastics. The Prescribed Authority for enforcement of the provision of the Rules relating to the use, collection, segregation, transportation and disposal is the District Collector, Deputy Commissioner of the concerned district where no such authority has been constituted by the State Government. It is put forth that no such authority has been constituted by the State Government under any law pertaining to non -biodegradable garbage. A reference has been made to Rules 4 to 6 as well as to Rule 8. There is also reference to the guidelines for recycling of plastics as per the Indian Standard laid down by the Central Government. It is the stand of the Board that there has been correspondence by the authorities of the Board with the District Collectors. It has also provided micron gauge meters to all its Regional Offices. It is worthwhile to state here certain suggestions given by the Board which, in fact, are for the purpose of carrying on and giving effect to the Rules. That apart, certain other suggestions have also been given. We have heard Mrs. Sarita Agnihotri, the petitioner, in person, Mr. Sanjay Yadav, learned Government Advocate for the State/respondent Nos. 1, 3, 4 and 5 and Mr. V.S. Shroti, learned Senior Advocate with Mr. A.P. Shroti, for the respondent No. 2. The petitioner appearing in person, has submitted that the use of polythene bags has created an incurable dent in the environment as after the destruction of such bags gaseous products affect the environment. It is canvassed by her that the pollution in the atmosphere affects the immunological resistance which ultimately destroys the marrow of physical health of the homosapiens. It is urged by her that when bags are not destroyed in a proper manner it has the effect potentiality to affect the foetus and sometimes may cause death. It is her submission that when animals eat polythene bags they slowly pave the path of death. It is also contended by her that any unscientific destruction of the bags leads to less rain, no rain or sometimes heavy and torrential rain thereby creating havoc in the atmosphere. It is forcefully contended by the petitioner that when the ecological effect is of such magnitude, the use of polythene bags should be banned and manufacture and use of polythene bags and other alternative materials should be prohibited, the same being warranted in the interest of the human race as well as animals. Mr. S.K. Yadav, learned Government Advocate, per contra, has submitted that there is no legislation for banning the manufacture of polythene bags or any material made of polythene and such ban would tantamount to legislation. It is urged by him that research has shown that for certain areas plastic is integral to sustainable development and it plays a vital role in fundamental medical care such as blood bags, disposable syringes, hygienic medical instruments, etc. Therefore, a ban in every sphere is unwarranted. It is also contended by him that when the Central Government has framed rules what is to be done relates to implementation and hence, a total ban, as prayed by the petitioner is impermissible. Mr. V.S. Shroti, learned Senior Counsel appearing for the M.P. Pollution Control Board, in his turn, has contended that the Board has been appointed as the Prescribed Authority in certain areas and is prepared to perform its role but where the State functionaries have been appointed as prescribed authorities there should be co -operation/co -ordination so that wholesome step can be taken to curb the menace as per law. The learned counsel has given certain suggestions. Before we proceed to deal with the rival submissions and the necessary directions which are to be given, it is worthwhile to remind oneself the signification of a healthy life. In the case of Sayeed Maqsood Ali vs. The State of M.P. and others, : 2001(2) MPLJ 605 : AIR 2001 MP 220 it has been laid down as under: Life is a glorious gift from God. It is the perfection of nature, a masterpiece of creation. It is majestic and sublime. Human being is the epitome of the infinite prowess of the divine designer. Great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life. It has been said "life is action, the use of one's powers" and powers one can use if he has real faith in life. The term 'life' as employed under Article 21 of the Constitution of India does never mean a basic animal existence but conveys living of life with utmost nobleness and human dignity -dignity which is an ideal worth fighting for and worth dying for. Life takes within its fold "some of the finer graces of human civilization which makes life worth living ". Right to live in its ambit includes right to health and health gives a serene and halcyon signification to life. It has been said that preservation of health is a duty and as per Herbert Spencer, "few seems conscious that there is such a thing as physical morality". While speaking about health thus spoke Izaak Walton........"for health is the second blessing that we mortals are capable of; a blessing that money cannot buy". Reverence for life is a fundamental principle of morality and a life without good health is denial of life. The human body is regarded as the house of creative intelligence. The health of an individual enhances the quality of the collective and in a welfare state it is the bounden obligation of the State to see that people remain in a healthy society. In this context we may profitably refer to the decision rendered in the case of K.M. Chinappa vs. Union of India and others, : AIR 2003 SC 724 wherein the Apex Court in paragraph 17 held thus: 17. Article 48A in Part IV (Directive Principles) of the Constitution of India, 1950 brought by the Constitution (42nd Amendment) Act, 1976, enjoins that "State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country". Article 47 further imposes the duty on the State to improve public health as its primary duty. Art. 51A(g) imposes "a fundamental duty" on every citizen of India to protect and improve the natural "environment" including forests, lakes rivers and wild life and to have compassion for living creatures. The word "environment" is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance." It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions, would cause environmental pollution. Therefore, hygienic environment is an integral fact of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environment protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man made and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like Municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measure to promote, protect and improve the environment -man and natural environment. In the aforesaid decision their Lordships have given emphasis on promotion of environmental protection and maintenance of the environment and the role of the Central Government, State Governments and the local bodies. It is seemly at this juncture to refer to the foreword International wild Life Law, M.R.M. Prince Philip the Duke of Edinburgh: Cambridge as referred to in the case of K. M. Chinappa (supra): Many people seem to think that the conservation of nature is simply a matter of being kind of animals and enjoying walks in the countryside. Sadly, perhaps, it is a great deal more complicated than that.......................... As usual with all legal systems, the crucial requirement is for the terms of the conversions to be widely accepted and rapidly implemented.............Regretfully progress in this direction is proving disastrously slow." (See International Wild Life Law by Simon Lyster, Cambridge, Grotius Publications Ltd. 1985 Edn.) In the aforesaid case their Lordships in paragraph 14 referred to the famous story that evolves around between Indian Chief of Seattle and the White Chief in Washington that the latter made an offer to buy the land of the former. In the reply the Indian Chief apart from saying many things which their Lordships described as profound, timeless and beautiful, stated thus: What is man without the beasts? If all the beasts were gone, man would die from a great loneliness of spirit. For whatever, happens to the beasts soon happens to man. All things are connected. From the aforesaid it is luminescent that the animals have to be given their due. We may at this stage state that the Environment (Protection) Act, 1986 [hereinafter referred to as 'the Act'] was enacted to provide for the protection and improvement of environment and for matters connected therewith. The said legislation was brought into existence as it was considered necessary for protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property. Clause (viii) of Subsection (2) of section 3 of the Act reads as under : 3. Power of Central Government to take measures to protect and improve environment. - - XXX xxx Xxx Xxx (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution. Section 25 of the Act confers power on the Central Government by notification in the Official Gazette to make rules for carrying out purposes of the Act. The Rules which have come into force by publication of the Gazette notification are required to be understood to appreciate the contentions raised by the petitioner. Rule 2(b) of the Rules defines 'foodstuffs'. It reads as under :

(2.) (b). 'Foodstuffs' means ready -to -eat food and food products fast food, processed and cooked food in liquid, powder, solid or semi -solid form. Rule 3 of the Rules deals with Prescribed Authority. It reads as under:

(3.) PRESCRIBED Authority. - -