Will the Maharashtra plastic ban choke on its reliance on criminal penalties?

Maharashtra’s plastic ban, a highly contentious topic for several stakeholders, came into effect on June 23. Police and other enforcement officials began imposing fines, effectively criminalising everyone who produces, transports, sells, buys or uses plastic products in public.

Supporters of the ban cite the pressing need to curb environmental degradation, and the hazards to human and animal health that plastic pollution presents. Detractors of the ban complain of its vagueness, the lack of viable alternatives to plastic products and the impact on those directly or indirectly dependant on plastic for their livelihood. While the government’s stated intention to protect the environment as well as human and animal health is laudable, it has caused panic among people who have been left guessing about the scope and consequences of the ban.

While much of the discussion has been about enforcement actions or the ambit of the ban, what appears to seldom find mention are the legal measures adopted in effecting the ban and the problems of using criminal law to enforce it.

Ambiguous notification

The plastic ban has been adopted through a notification issued on March 23 under a 2006 state law known as the Maharashtra Non-Biodegradable Garbage (Control) Act. What is striking about the notification is its textual inconsistency. While at times it is painstakingly detailed, at other times it is perilously casual in its wording. The notification relates to “manufacture, usage, transport, distribution, wholesale & retail sale and storage, import” and is broadly applicable to all public places in the state and to all individuals and companies. Plastic bags and disposable plastic and thermocol products are covered and it also includes single-use plastic containers and cutlery, plastic wrapping and liquid containers. The definition then ambiguously and abruptly ends with the term “etc.”, leaving seemingly endless discretion in the hands of those tasked with enforcing the law. Admittedly, given how plastics and thermocol proliferate in our built environment, a comprehensive definition may not be possible. However, the scope cannot be so vague. Criminal law involves the state exercising its powers against personal freedoms and, therefore, the rule of interpretation of criminal laws is that they are strictly interpreted. Having defined categories of prohibited articles, a legal standard to distinguish between single-use and durable products would be required to ensure that applying criminal sanctions is more than guesswork.

To make matters worse, numerous exceptions strain at the law’s coherence. Speciality plastic is permitted for milk and agricultural inputs but curiously, no plastic is permitted for fish or meat or other dairy products. Recyclable plastic is permitted for wrapping manufactured products or where it is “integral to manufacture” without clarifying what industries it would exempt. Permitting plastic in special economic zones and export-oriented facilities undercuts the ban but also fails to protect manufacturers and traders who engage in inter-state and international trade. While plastic packaging for medicines remains clearly exempted, the government is backpedalling on absolute bans on PET bottles of less than 0.5 litres and thermocol decorations. According to a notification in April, a meeting with plastic manufacturers convinced the government to undo the ban on bottles less than 0.5 litres. On thermocol decorations, the state’s environment department has publicly stated that the ban may be relaxed for the Ganesh festival in September. And on Thursday, the state permitted retailers to use plastic bags for three more months. The government’s submissiveness to powerful interest groups considerably undercuts the ban.

Drawback of criminal sanctions

This chaotic situation cannot be dismissed as mere teething troubles. The use of criminal sanctions to ensure compliance remains an abiding concern. While criminal sanctions are a powerful weapon in a state’s armoury, they are seldom instruments of first resort. Criminal penalties are expensive, time consuming and tend to target those least able to defend themselves.

Penalties under the 2006 Act are stringent but curiously structured. For a first-time offence, a fine up to Rs 5,000 is imposed, which increases to Rs 10,000 for a second offence. A third offence invites a fine of Rs 25,000 with imprisonment up to three months. While the fine increases on reoffending, it is not proportionate to the severity of the offence. One plastic bag is punished the same way as one tonne. There is no distinction between an offending individual and an offending company. The amounts involved are an unhappy average, too high for a daily-wage labourer but barely even a slap on the wrist for many companies and wealthy individuals. The high fine amounts may see attempts to settle matters informally, resulting in corruption.

If the charges under this law are disputed, the accused must appear before a magistrate. Criminal courts are already struggling to cope with their caseload and burdening it with plastic ban cases would clog up the system even more. Prosecution drains resources by consuming the courts’ time and requires a prosecutor, enforcement officers, court staff, the defendant and case records. While cases can be settled by paying the full fine for the first two offences, a third offence requires a court to intervene. Those without the means to defend themselves or the capacity to withstand the tortuous legal process may choose to pay, irrespective of their guilt. Those with the capacity to weather the legal system will engage lawyers and contest the charges. Multiple agencies including police, tax, municipal, revenue, forest, health and education officers are empowered to enforce the law, with no clarity on jurisdiction or how to store and share information between agencies. The high costs of imposing criminal sanctions means that enforcement can only be selective. This may result in some groups feeling targeted while well-organised groups lobby their way out of the law’s ambit.

A wasted opportunity?

Maharashtra is not the first Indian state to impose a plastic ban but it appears not to have studied examples within the country or globally. Criminal sanctions appear to have been resorted to as a quick fix rather than regulatory alternatives such as taxation to incentivise moving away from plastic, banning specific products, and ensuring the availability of alternatives to plastic and thermocol. Broad-ranging stakeholder consultation required for a policy so sweeping appears to have been absent as also pilot studies to assess the real-world impact of the policy before a full-scale rollout. Consumer awareness campaigns and plans to create comprehensive and easily accessible waste disposal systems appear to have been little more than an afterthought rather than measures to sustain the policy.

Despite the government’s commendable aim to mitigate the harm caused by plastic pollution, its implementation seems to be little more than a squandered opportunity to address a pressing problem. Rather than designing a responsive and effective policy, the government appears to have tried to achieve compliance by bludgeoning its citizenry with the blunt instrument of criminal law.

Nishant Gokhale practised criminal law in New Delhi and studied criminal justice policy at Harvard Law School