Interpreting the application of Plastic Waste Management Rules, 2016 on exporters and export products
The Prime Minister's Independence Day speech on 15 August, 2019 highlighted the growing menace of plastic pollution in India and gave a clarion call to free India from single-use plastics by 2022. On 12 August, 2021, in what was seen as a significant step towards achieving the Prime Minister's goal, Ministry of Environment, Forest and Climate Change ("MoEFCC") amended the Plastic Waste Management Rules, 2016 ("Plastic Rules") to inter alia prohibit the manufacture, import, stocking, distribution, sale and use of specified single-use plastic commodities with effect from 01 July, 2022. These plastic items are ear buds with plastic sticks, plastic sticks for balloons, plastic plates, cups, glasses, cutlery, among others commodities having very low utility and high environmental impacts. These Plastic Rules have also increased the minimum thickness of plastic carry bags to facilitate their reuse.
Scope of the Plastic Rules: Whether products for export are covered?
Rule 2(1) of the Plastic Rules reads as, "these rules shall apply to every waste generator, local body, Gram Panchayat, manufacturer, Importers, brand owner, plastic waste processor (recycler, co-processor, etc.)." This means that persons and entities mentioned here are required to comply with the Plastic Rules ("Specified Persons"). However, export oriented units or units located in special economic zones manufacturing their products against an order for export (except those engaged in packaging of gutkha, tobacco and pan masala and also to any surplus or rejects, left over products and the like) have been exempted from the applicability of certain aspects of Plastic Rules including the prohibition on single-use plastic commodities as mentioned above.
An interesting aspect to be noted here is that the Specified Persons do not include the "exporters". This raises some interesting questions pertaining to the application of Plastic Rules to materials produced in India for the purpose of exports and whether the prohibition on single-use plastic commodities applies to export products. In order to understand whether the legislature intended to include "exporters" in the category of Specified Persons without mentioning them in the provision, we need to construe the legislative intent by interpreting the provisions of Plastic Rules.
- The relevant provision is non-inclusive in nature
As noted above, Rule 2(1) begins with the expression "these rules shall apply to...". This indicates that the language of this provision is not illustrative or inclusive in nature, implying that the categories of persons intended to be covered have been specifically mentioned here and those not mentioned will not be considered to be covered under its scope. In such types of provisions, all categories and aspects intended to be included are clearly mentioned and nothing is left for interpretation. If the legislature had intended to make this provision inclusive, expressions like "includes" ought to have been used.
This reasoning could also be corroborated by referring to the legal maxim "expressum facit cessare tacitum", which is used as an aid for interpretation of a provision. In the case of Union of India v. Tulsiram Patel1, a Constitution bench of the Supreme Court of India noted that this maxim is a principle of logic and common sense and not merely a technical rule of construction. The Court observed the meaning of this maxim as, "when there is express mention of certain things, then anything not mentioned is excluded." It indicates that where one or more things have been specifically included in a provision, others are considered to be excluded from it unless anything contrary appears in the provision or the statute.
A further reference can also be made to the notification issued by the State of Uttar Pradesh in relation to the prohibition on certain plastic items. The State Government issued a notification dated 15 July, 2018 prohibiting the "use, manufacture, sale, distribution, storage, transport, import or export" of the specified plastic carry bags and commodities. The specific reference to the term "export" in this notification indicates that the prohibition in relation to the specified plastic items will also be applicable on the export of such plastic commodities.
Similarly, Government of Kerala issued a notification dated 17 December, 2019 prohibiting the manufacture, transport, storage or sale of the specified plastic products in Kerala. However, this notification specifically exempted inter alia plastic products manufactured exclusively for the purpose of exports against any order for export in a plastic industry from this prohibition in Kerala.
A specific reference to "exports" in these two notification indicates that wherever relevant and intended it has been expressly specified in the notification.
- Interpretation of Plastic Rules by reading it as a whole
It is a cardinal principle of interpretation of statutes that the intention of the legislature must be assessed by reading the statute as a whole. The words of the statute must be read in their grammatical and ordinary sense, harmoniously with the scheme and object of the statute and in light of the intention of the legislature. In the case of Utkal Contractors and Joinery Pvt. Ltd. and Ors. v. State of Orissa and Ors.2, the Supreme Court of India observed that both the words of an enactment and the context in which they have been used are equally important to analyse the intention of the legislature for the interpretation of a statute. The reason for a statute is the safest guide to its interpretation. It also observed that no provision and word of the statute should be construed in isolation. Rather, they should be read in light of the overall context in which they have been used.
The Plastic Rules have been enacted with an underlying objective of addressing the problem of plastic pollution within India. These rules seek to address the environmental challenges posed by the plastic waste generation, littering and its unscientific management and disposal in India. With this context, Plastic Rules lay down the regulatory framework inter alia for: (i) conditions for the plastic carry bags or commodities being used in India; (ii) requirement for the registration of different persons involved in the entire lifecycle of plastic from manufacturing till recycling / disposal in India; (iii) obligation of the persons like brand owners, producers and importers to ensure collection and management of plastic items after final use in an environmentally sustainable way; (iv) responsibilities of different Government authorities in relation to the plastic waste management; and (v) constitution of the State Level Advisory Committee for effective implementation of these rules.
By reading the provisions of Plastic Rules as a whole, it could be construed that its objective and scheme is related to the control and management of the plastic waste being generated within India. The export of materials that will generate plastic waste outside India will not be covered within its scope as the waste in such cases would be generated only outside India.
- Specific exemption to export oriented units and special economic zones
As noted above, export oriented units or units located in special economic zones manufacturing their products against an order for export (except for specified industries) have been exempted from certain aspects of Plastic Rules including the prohibition on single-use plastic commodities as mentioned above.
We understand that exporters generally include export oriented units, units in special economic zones and other units engaged in exports. The term "exporter" has a wider connotation whereas export oriented units and units in special economic zones are only two specific categories within the larger category of exporter. The specific exemption provided to only two categories of exporters indicates that Plastic Rules intend to generally cover exporters within their scope. In other words, except these two categories of exporters, other exporters will be covered under the scope of the Plastic Rules. If the Government had intended to exclude exporters from the scope of Plastic Rules, there would have been no need for a specific exemption for only these two categories of units as they would have already been excluded from Plastic Rules by virtue of merely being "exporters".
Conclusion
The applicability of Plastic Rules on export products could be argued either way. A clarification in this regard from the Government would be required to avoid any unnecessary delays in the implementation of a well-intended regulatory measure. Accepting the interpretation that Plastic Rules do not cover exporters might not increase plastic pollution in India. However, it may lead to an increase in plastic products and possibly plastic pollution in other countries of the world, if such countries do not have adequate measures to regulate and recycle plastic waste. Considering that the global environment is not bound by political boundaries and is impacted all across in a common way, any pollution within or outside India will eventually impact the natural environment globally. Hence, there is a greater need to clarify such exemptions not only to provide clarity and certainty to businesses but to also protect the global environment from plastic pollution.
Footnotes
1 (1985) 3 SCC 398.
2 AIR 1987 SC 1454.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
