' SYED SHABBAR RAZA RIZVI J.---The petitioner is a practising lawyer and also an active member of the Lahore High Court Bar Association. He has filed this writ petition in, public interest.
2. According to the learned counsel for the petitioner, use of polythene bags is causing havoc in various areas of, the society i,e, sewerage system in the cities; agriculture in the rural life, marine life on the coastal area, public health: spread of dangerous diseases like cancer. The use of these bags is also making our soil infertile. According to him, the polythene bags can also not be disposed of through recycling for many reasons, i,e, decomposition of polythene material is not possible. He adds that even disposal through burning of polythene is harmful as it releases toxic gases like dioxins which have cancerous effects on health and can also cause respiratory problem, thus, after use of polythene bags for a short period, it cannot be disposed of by throwing, dumping or by burning.
3. According to the petitioner, some legislation has been done in the Province of Punjab but neither it is effective nor being implemented by the respondents. The learned counsel suggests that respondent must take an action similar to as taken in Bangladesh, and India in State of Bihar.
According to the petitioner, respondents have failed to perform their functions as required under the Constitution of Pakistan as well as a law, known as "Punjab Prohibition on Manufacture, Use, Sale and Import of Polythene Bags (Black or Polythene Bags Below Fifteen Micron Thickness)
Ordinance, 2002" (hereinafter to be called Ordinance, 2002).
4. The respondents filed their reports and parawise comments in pursuance of orders of this Court dated 4-4-2007 and 18-9-2007. According to the report submitted by respondent No,1, dated 8-12- 2007, "there is no denying the fact that polythene bags are hazardous to health and environment.
These bags choke the sewerage lines which are being maintained by Water and Sanitation Authority (WASA) and Tehsil/Town Municipal Administration (T.M.A.) and also create additional problem regarding Solid Waste." Respondent No.1 further stated that, "The Federal as well as Provincial Government along with stake-holders is fully sensitized to the issue of use of polythene bags and its negative impact on the environment and necessary measures are being adopted to minimize the harm resulting from manufacture and use of polythene packing materials. However, respondent No.1 stated that total ban on polythene bags is neither possible nor advisable but through a phased program effective implementation of laws and replacing the Polythene bags with some alternate and equally economic material and its ill effects can be minimized.
5. According to Respondent No,7: it is admitted fact that polythene shopping bags are causing environmental hazards. Due to its non-decaying nature, they remain in the environment causing severe environmental problems. However, according to him, if polythene shopping bags are properly managed i,e, avoiding their throwing in the streets and drains, then the said material will not cause any significant problem. According to him, recycling of polythene waste is also not difficult or impossible. According to respondent No,7, persons who are not following the provisions of Ordinance, 2002, are being taken to the task by the concerned authorities, He added that, "we cannot follow the Bangladesh pattern by putting a complete ban as circumstances in both countries are different."
6. According to respondent No,4, it is admitted that mishandling of polythene bags create health hazards and sewerage/choking problems and to check the above problems Ordinance, 2002 has been promulgated. Section 3 of the said Ordinance imposes ban on manufacture, sale and use of black polythene bags or any polythene bags below 15 micron thickness. The offence under section 3 of the Ordinance has also been made punishable with imprisonment for a term which may extend to 3 months or with fine, which may extend to Rs,50,000. According to respondent No,4, Rules required under section 6 of the Ordinance have also been enacted and enforced. According to respondent No,4, all District Officers (Environment) throughout the Province have been directed to ensure implementation of the Ordinance, 2002.
7. According to respondent Nos.3 and 5, banning the use of polythene bags will not serve the purpose as thousands of people are involved in this business. However, according to them, the use of Polythene bags is being discouraged by the Federal Government, and Provincial Governments have been directed to take legislative and executive measures to curb the negative effect being caused by use of Polythene bags. Respondent Nos.3 and 5 have also pointed out that in this regard public awareness campaign is also underway which is essential to eradicate the threat to the society being posed by the use of polythene bags.
8. The gist of the above report and parawise comments is that negative effects and damage being caused by manufacture and use of polythene bags, is not denied. In fact, some measures have been taken by the respondents which reflect in their replies. However, respondents are not in favour of putting a complete ban on manufacturing and sale of the same on the ground of likely unemployment of thousands of people involved in manufacture, etc. The respondents belonging to the Province of Punjab have already introduced a ban through the Ordinance of 2002. Section 3 of the Ordinance reads as under:- "No person shall manufacture, sale, use or import black polythene bags or any polythene bag below 15 micron thickness or offer any kind of eatable and non-eatable goods in any black polythene bag or any polythene bag below 15 micron thickness."
' The reply of respondent No.7 and documents annexed thereto also suggest that action under the Ordinance has already been taken against some persons.
9. However, some of the respondents have raised objection on maintainability of the present writ petition.
10. I have considered the contentions of the learned counsel for the petitioner and replies thereto of the respondents by applying my mental faculties to the best of my ability. I have also heard the learned Deputy Attorney-General for Pakistan and the Assistant Advocate General, Punjab.
"Hanging from the branches, flying in the air, stuck in corners and racing along with vehicles on roads, one can see them everywhere these are the polythene bags". This wonder material of the 20th century has invaded every aspect of our life. It is all over the places messing up the streets and parks, clogging the drains and gutters. Hundreds of thousand of plastic bags are thrown away every day as waste, this otherwise innocent mistake of throwing them everywhere result in choke drains, bacterial germination, waterborne diseases and spread of mosquitoes. Deposited in high quantities in the fields, these polythene bags cause soil infertility. Plastic waste when dumped or thrown into rivers, ponds or sea have disastrous effects.
11. Destruction which is being caused by these polythene bags could not be expressed better than the above mentioned, but it seems that the respondents have not really appreciated and realized gravity and depth of hazard and destruction being posed by the menace known as polythene bags that is why, though they did not deny threat or the damage being caused but still have taken a very lenient view. At this point, I would refer to a small sentence from a report of very famous magazine "TIME" dated April, 9, 2000, at p.32, "Climate change is caused by a lot of things, and it will take a lot of people to fix it. There is a role for big thinkers, power players, those with deep pockets-- and the rest of us." (By Jeffery Kluger).
12. His Lordship, Syed Hadier Ali Pirzada, J. Of Karachi High Court, held,--- "Public interest is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society. In the interest of administration of justice some of the old and well established procedural rules and practices have been altered. Public interest litigation can now be initiated not only by filing formal petition in Court but even by writing letters and telegrams.
' Whenever the conscience of the court was shocked on account of action or inaction on the part of the Federation or Province, the court would exercise its jurisdiction under Article 199 of the Constitution. Public interest litigation has come to stay as one of the species of litigation in which redress may be found from the courts of law. However, this does not confer a general and untrammeled right to indulge in frivolous litigation without any genuine cause of action and the necessity of seeking redress of some real grievance. Consequently while recognizing such litigation, courts had taken care to add a word of caution that certain minimum conditions must be satisfied before the courts shall lend assistance to such litigant asking for relief.
' Public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt."
' 1994, dealing with the environmental hazard and pollution (PLD 1994 SC 102) his Lordship Saleem Akhtar, J. Of the Hon'ble Supreme Court of Pakistan, held as under:-- "In my view, if nuclear waste is dumped on the coastal land of Balochisan, it is bound to create environmental hazard and pollution. This act will violate Article 9. It is, therefore, necessary to first enquire from the Chief Secretary, Balochistan whether costal land of Balochistan or any area within the territorial water of Pakistan has been or is being allotted to any person. If any allotment has been made or applicants have applied for allotment, then full particulars should be supplied.
' After receiving the necessary information from the Chief Secretary, his Lordship concluded as under:-- "It may be noted that no one will apply for allotment of land for dumping nuclear or industrial waste. This would be a clandestine act in the garb of a legal and proper business activity. The authorities are therefore, not only to be vigilant in checking the vessels but regularly check that the allottees are not engaged in dumping industrial or nuclear waste of any nature on the land or in the sea or destroying It by any device. " (PLD 1994 SC 102).
It may be noted with caution that threat to environment through pollution and other means was not allowed by the Hon'ble Supreme Court being threat to life of citizens, which was being done in the garb or name of business activity. According to a Full Bench of the Hon'ble Supreme Court of Pakistan "a person can invoke the jurisdiction of the Superior Courts as pro bono publico provided he shows that he has approached the F court in the public interest and for the public good or for the welfare of the general public". (PLD 2004 SC 482).
13. The preceding paras clearly show that contents of the instant writ petition, and contention of the learned counsel/petitioner, do not relate to his person or any individual instead they relate to "life" of the people of Pakistan, hence fulfil the requirements of pro bono publico.
14. Public interest litigation in the recent years has increased not only in our country rather we can see that all around in the world. There can be more than one reasons for that: Firstly, when people fail to get relief from other organs of the State, i,e, Executive and Legislature, they resort to the Judiciary; Secondly, the Constitution of the day provides fundamental rights as well as principles of policy. One of the functions of the Supreme Court/High Court is to enforce the Constitution of Pakistan and its provisions including fundamental rights guaranteed therein. The High Court under Article 199(1)(i)(ii)(c) & (2) is mandated to ensure protection and enforcement of fundamental rights i,e, "life" of people.
15. A former Chief Justice of Lahore High Court while commenting upon writ jurisdiction of the High Court at the time of his installation as Chief Justice in 1958 said, "mandamus and certiorari are flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain their perfume." His Lordship further stated, "the God fulfils Himself in many ways and that we (Judges) are the humble instruments of His fulfilment." According to his Lordship "the writ jurisdiction is a modern manifestation of God's Pleasure and that God's Pleasure dwells in the High Court." (Chief Justice Cornelius of Pakistan by Ralph Branbiti, pp. 42-43, published by Oxford in 1999).
16. According to Article 9 of the Constitution of Pakistan no person shall be deprived of his 'life' or property save in accordance with law. The expression "life" has been defined in a number of judgments handed down by the Superior Courts of Pakistan. This expression has been assigned expanded definition. Briefly, 'life' of a person does not mean only a vegetative life, life requires fulfilment of all requirements which are needed for a complete, normal and dignified life, including a healthy environment. Furthermore, Article 9 needs to be read with Article 38(d) of the Constitution. It is a requirement of the Constitution of Pakistan, that aspirations of these two Articles must reflect in the legislation and policies of both Federal as well as Provincial Government. The Hon'ble Supreme Court .Of Pakistan in General Secretary v. Director Industries, 1994 SCMR 2061, held as under: "The word "life" has to be given an extended meaning and cannot be restricted to vegetative life or mere animal existence. In hilly areas, where access to water is scare, difficult or limited, right to have water free from pollution and contamination is a right to life itself. The right to have unpolluted water is the right of every person wherever he lives".
In Shehla Zia v. WAPDA PLD 1994 SC 693, the Hon'ble Supreme Court of Pakistan held as under:-- "The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor it can be restricted to the vegetative or animal life or mere existence from start to death. Life includes all such amenities and facilities."
17. All the respondents conceded that use of polythene bags causes choking in the drains and sewerage system. The Lahore High Court already held in Aamer Bano v. S.E. Highways, PLD 1996 Lahore 592 that, "the root-cause of the ugly situation prevailing in the city detailed above, is on account of the failure of the sewerage system in the city, therefore, with the assistance of the heads of various departments and the representatives of the community and of course with assistance of the learned A.A.-G. And the counsel for the parties, I have right to resolve the dispute through consensus." His Lordship Muhammad Aqil Mirza J. Further observed, "the position that emerged, therefore, is that to alleviate the miseries of the large number of citizens of Bahawalpur and to secure them their fundamental right guaranteed under Article 9 of the Constitution with regard to protection of their lives and from diseases and inconvenience, it will be just and proper to issues suitable directions which will ensure the restoration of sewerage system in the city of Bahawalpur."
18. Some of the respondents pointed out that a complete ban on manufacture and use of polythene shopping bags would deprive thousands of people of their jobs. This stance of respondents is self-contradictory. On the one hand, they concede that manufacture and use of polythene bags is causing damage in many areas of life (details are not needed to repeat), on the other hand they do not want a complete ban or prohibition on manufacture and sale of these polythene bags on the ground of likely deprivation of employment. In crime and illegal professions, the delinquent and accused persons take similar pleas. For example, people involved in smuggling of narcotics justify it on similar plea. Can this Court approve or allow that? Most of the people employed in the smuggling of narcotics are poor, women, even small children are employed as carriers in this heinous offence. Moreover, are we poorer than the people of Bangladesh? After noting the horrific effects in different areas of our life by use etc. Of polythene bags, this Court is constrained to take a holistic approach instead of considering only one aspect of likely unemployment. Thus, the plea of the respondents that a complete prohibition may not be imposed on manufacturing etc. Is dismissed and observed as untenable. Nothing is more precious than "life" polythene bags (shoppers) are killers, therefore, they must be killed.
19. The above survey of the constitutional provisions and case law clearly leads to the conclusion that petitioner fulfils the criteria of being an aggrieved party and this writ petition is maintainable under Article 199 of the constitution. Thus, this writ petition is allowed.
20. Prohibition or restrictions on use of polythene bags (shoppers) has already been enforced/introduced in some other countries. In this context, Bangladesh has already been mentioned. According to section 6A of the Bangladesh Environment Conservation Act, 1995:-- "If, on the advice of the Director-General or otherwise, the Government is satisfied that all kinds or any kind of polythene shopping bag, or any other article made of polyethylene or polypropylene, or any other article is injurious to the environment, the Government may, by notification in the officials gazette, issue a direction imposing absolute ban on the manufacture, import, marketing, sale, demonstration for sale, stock, distribution, commercial carriage or commercial use, or allow the operation or management of such activities under conditions specified in the notification, and every person shall be bound to comply with such direction: ' Provided that such direction shall not be applicable to the following cases:
(a) if the article specified in the notification is exported or used for export;
(b) if the direction mentions that it is not applicable to any particular kind of polythene shopping bag."
Section 3 of the "Balochistan Prohibition On Use And Sale of Polythene Bags Ordinance, 2001", reads as under:- "No person shall import, make, sale, and offer any kind of eatable and non-eatable goods in any kind of polythene bags in the Province of Balochistan."
In May, 2003, South Africa made it illegal for shops to offer flimsy plastic shopping bags, which had been disparagingly called the nation's national flower because of the large numbers that were dumped around the country. Instead, retailers are offering,. At a price, more ecologically friendly polypropylene bags or thicker plastic bags that are more economical to recycle. And many South African customers are bringing their own containers. In Germany and Canada Super-Markets have taken their own initiative by making shoppers to pay for shopping bags. Some measure shave also been taken in the Ireland.
' The respondents can take advantage of above mentioned experiences from the above mentioned jurisdictions.
21. Since the Federal Government and Provincial Government have failed to curb the manufacturing, sale and use of polythene shopping bags and thus fail to protect the "Life" of citizens of Pakistan, in the present context, an appropriate direction can be issued to the respondents to do what they are required to do under the Constitution and the law. To achieve the objective of enforcement of rights under Article 9 to be read with Article 38, respondents need to take several administrative measures. They are also required to initiate certain legislative steps.
According to Hon'ble Karachi High Court, there is a marked distinction between a direction to the Legislature to legislate and a direction to the executive to initiate the legislative measures (Sharaf Faridi v. The Federation of Islamic Republic of Pakistan PLD 1989 Karachi 404). In view of the above the following directions are issued to the respondents:--
(i) That respondents Nos. 1, 4, 6 and 7 Shall ensure strict enforcement and compliance of provisions of the Ordinance, 2002. In this regard, they shall also cause registration of criminal cases against the offenders under the provisions of the Ordinance 2002 and Pakistan Penal Code. Relevant provisions are provided under Chapter XIV of Pakistan Penal Code.
(ii) That in view of catastrophic losses being caused by the polythene shopping bags, the respondent No,1 shall initiate necessary measures for required legislation, within six months, for an absolute ban on manufacture, sale, marketing, use and import, etc. Of polythene shopping bags of all kinds whatsoever. There will be a complete prohibition, after six months from today, on manufacture, sale, use, stock, marketing and import, etc. Of polythene shopping bags within the Province. The petitioner or any other citizen might file a contempt petition if order of this Court is not complied with as noted above, and in the meanwhile respondents shall substitute the polythene shopping bags with alternatives.
(iii) Respondents are further directed to take some definite and positive steps to create awareness, amongst the people, of disastrous effects being caused by use of polythene bags."
' Before I part with this judgment, I want to record my appreciation for efforts of the petitioner, Barrister Ali Zafar and all others who have assisted/shared their views with the Court during proceedings of this petition before this Court.