Ban on Crackers by Supreme Court of India-
The Apex Court in a case banned the sale of firecrackers in Delhi NCR. This decision was questioned by many on the ground that it violates their right to livelihood, and freedom of religion. All fundamental rights are subject to certain reasonable restrictions. Thus, by this article, we aim to analyse the honourable court’s decision with reference to the various questions raised on it.
In the recent case of Arjun Gopal and Ors. versus Union of India and Ors.[1], the Supreme Court suspended the sale of firecrackers during the Diwali 2017 season in the Delhi NCR region. A lot of Hindus claimed that this stops them from exercising their freedom of religion.
The Confederation of All India Traders (CAIT), a traders’ body, issued a statement that said conducting the business of firecrackers is a legitimate activity protected under the Constitution of India giving ‘Right to Work’.
We thus aim to look into Supreme Court’s decision and analyse with reference to the questions raised.
Whether suspending the sale of crackers take away the freedom of religion of the Hindus & the right to livelihood of the sellers?
Whether the court acted ultra vires while suspending the use & sale of Firecrackers in Delhi NCR during the Diwali season?
Before getting into the ban, first, let us understand what a firecracker is legal. It is considered an explosive with a low hazard and which aims to produce fire with light, sound, smoke or such combination. Rockets, shells, fuses, fog-signals, percussion caps are also included.- According to Explosives Rules 2008, (Rule 24)
To start, The Supreme Court, in this case, considered a petition from Sanjay Kumar from 2012 which focused on two main perspectives: Firstly, the reduction of pollution by suspending the use of firecrackers & secondly for the implementation of the rules of the Fire Explosives Act, 1884.
In November 2016, an interim order was passed by the Supreme Court. This was due to the fact that pollution levels on the day after Diwali rose to one of the highest recorded in the world & crossed the standards laid down by the World Health Organization by 29 times. The result was that many people fell sick, had to use masks & air purifiers.
The court drew an unarguable conclusion based upon the aforesaid information & the statutory standards National Ambient Air Quality Standards laid down in India. The same is contained in the Schedule VII of the Environment (Protection) Rules, 1986.
The Court thus on 11th November 2016 suspended all licences which permit the sale of fireworks in Delhi National Capital Region (NCR). The direction was that the suspension is to remain in force till further orders of the court. Thus, the firecracker manufacturers (Sivakasi) thus moved to the court in 2017 for the same order. It is to be noted that there are around 821 firework industries in and around Sivakasi.
It was the contention of the manufacturers that fireworks are not a major contributor to air pollution. The Court was of the view that the “health of the people in Delhi and in the NCR must take precedence over any commercial or other interest of the applicant or any of the permanent licensees.” and upheld its suspension on the sale of crackers but limiting the order only till 1st November 2017. The court said that it “should be given one chance to test itself” to see if it would have a positive effect, particularly during Diwali.
There are many things which support the court’s order.
To start, In Occupational Health & Safety Assn. v. Union of India[2], it was held in paragraph 10 of the Report that the right to health enshrines a hygienic and safe environment.
Thus the court said that people of Delhi have the right to protect their health from the adverse effects of the bursting of firework[3]
With reference to Para 16 & 17 of Vellore Citizens’ Welfare Forum v. Union of India, it can be said that right to breathe clean air is recognised under the Constitution.
Many have argued that the order violates Article 25 of the Constitution.
In Church of God in India vs. K.K.R Majestic Colony Welfare Assn, it was held by the Supreme Court that the court can put certain restrictions on controlling the noise, even if such noise was a direct consequence of any religious ritual or activity being held. This judgement puts certain reasonable restrictions and in no way violates the basic fundamental right to practice one owns religion.
When it comes to Freedom of Religion, Article 25 of the Indian Constitution grants the right to religion
Here, it becomes important to note that the right conferred is subject to public health & the restraint comes before the right. It thus becomes the duty of the court to take into account the health of all the people of Delhi.
In Mohd. Hanif Qureshi & Others vs The State Of Bihar[4] a total ban on the slaughter of all categories of animals of the species of bovine cattle (milk producing animals) was held to be valid because the slaughter of cows on Bakri-ID day was not an essential part of the religious practice. Fundamental Rights are not absolute are subject to certain reasonable restrictions.
Thus, The Supreme Court itself observed that there is deterioration in the air quality which is an alarming situation. Therefore it’s safe to say that the Supreme Court has acted reasonably. It can also be said that bursting of firecrackers is not an essential practice of celebrating Diwali. Bursting crackers is not considered necessary in any of the Hindu religious texts.
In Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat[5], the Supreme Court has Observed that no rights can be absolute and harmony with the rights of others must be considered. Fire Crackers cause noise pollution. In re Noise Pollution was a case wherein the Supreme Court restricted the use of loudspeakers. Moreover, it can also be said that right not to hear is a right enshrined under Article 21 of The Indian Constitution.
It is the duty of the State under Article 48A of the Indian Constitution to ensure a healthy environment and the fundamental duty of all citizens to ensure the same under Article 51A(g) of the Constitution. Even though the Directive Principle of State Policies are not enforceable, in re Kerala Education Bill[6], the court held that a harmonious construction must be given to Fundamental Rights and Directive Principles of State Policies & Fundamental Rights.
The Court has also followed the “precautionary principle” by suspending the use of crackers. The precautionary principle makes it necessary that where serious and irreversible damage can be seen as a threat, postponing measures to prevent environmental degradation should not be reasoned by a lack of scientific certainty.
It can also be reasoned that firecrackers attract the rule of strict liability which itself proves how dangerous they are. Thus, the ban could be claimed as reasonable.
If questions are raised on why the sale in NCR is banned & not the bursting of crackers, restraining supply of fireworks is the more practical way instead of banning bursting of crackers by individuals as it is difficult to monitor the same.
A question is raised as to why the courts intervene in administration when it is the duty of the legislature. This could be reasoned by the failure of the legislature to perform the constitutional duties.
One major point supporting the view that the court did not commit an overreach is that it did not enforce a complete ban but only a ban till 1st November 2017. Thus, it can be said that the court has made an effort to recognise the menace of environmental pollution. It has tried to help the executive by such suspension. The court prudently controlled the severe rise in pollution and environmental degradation in the National Capital Region. The court has dignified the right to life of the citizens suffering due to the severe pollution by its order.
This order came was passed by the virtue of Articles 141 and 142 of the Indian Constitution. The court has held that non-implementation of the same is leading to gross violation of the Fundamental Rights which must be preserved and respected at all times.
“Salus Populi est Suprema lex” which means that public welfare is the highest law. Generally, when a person’s right is violated, he can claim a remedy. But when this happens for the benefit of the public at large, such right becomes unenforceable.
It can be concluded that Right to Life & personal liberty which includes the right to breathe clean air should be upheld because it is the very spirit of the Constitution of India for the judiciary & legislature to act for the welfare of the public at large.
References-
[1] I.A. No. 52448 of 2017, SCC
[2] WRIT PETITION (CIVIL) NO.79 OF 2005, SCC
[3] Arjun Gopal and Ors. versus Union of India and Ors. I.A. No. 52448 of 2017, SCC
[4] 1958 AIR 731, 1959 SCR 629
[5] A. M. N. P. A. Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098 : (1975) 1 SCC 11
[6] In Re: The Kerala Education Bill, 22 May, 1958, 1959 1 SCR 995
By Maahi Mayuri
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