This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the journey of the Indian judiciary w.r.t the ban on the sale and use of firecrackers.
Table of Contents
Introduction
There are two important aspects to the bursting of firecrackers during festivals like Diwali. The supporters of the use of firecrackers argue that Diwali is the festival of lights and is a very popular festival celebrated by the Hindus across the world by bursting firecrackers. The use of firecrackers in the Hindu religion can be traced back to the 16th century when firecrackers were used to celebrate the marriage of Dara Shikoh and in light of the same, it is argued that bursting firecrackers is a religious practice that has been continuously followed by Hindus since time immemorial and thus, it is entitled to be protected as a core and essential religious practice under Article 25 of the Constitution as a fundamental right.
On the other hand, the people who oppose the use of firecrackers argue that the key ingredients used in firecrackers result in the formation of smog that engulfs cities like Delhi in a poisonous atmosphere. Bursting firecrackers also not only contributes to air pollution but also causes noise pollution. They further argue that the protection of the environment is not only a duty of the state but the citizens and therefore, the use of firecrackers violate the various provisions in the Constitution like the right to live in a noise-free and clean environment that is protected under Article 21 of the Constitution.
Now that we have understood the background of the issue briefly, let us try and understand how the judiciary has reacted to the use of firecrackers over the years.
Arjun Gopal v. Union of India : November 2016 [(2016) 1 SCC 412]
In this case, the Supreme Court noted several reports that recorded the air quality of Delhi post-Diwali. The Central Pollution Control Board (CPCB) whilst measuring the National Air Quality Index noted that in 2015, there was a spike in air pollution and deterioration of air quality in over 8 states on the night of Diwali. A report by the AIIMS Delhi stated that there was an increase in the number of patients who had complaints regarding chest ailments, cough and breathlessness. The reason for this was noted to be the sudden exposure of the body to toxic gases that were released by the bursting of firecrackers. Another report in this regard indicated a rise in PM 2.5 levels a day after Diwali in the Delhi and NCR regions.
In light of these observations, the Supreme Court banned the sale of firecrackers in the Delhi and NCR regions. Further, the Court also issued a ban on the storing of firecrackers in factories, retail outlets or residential premises and also placed a ban on the issuance of new licenses to the businesses that deal in the manufacture and sale of firecrackers.
Arjun Gopal v. Union of India : October 2017 [(2017) 16 SCC 280]
In this writ petition, the petitioners sought a complete ban on the use of firecrackers around the year, especially during festivals on the ground that several diseases were being caused due to the use of firecrackers like asthma, bronchitis, nervous breakdown, cognitive impairment etc. However, the petitioner also noted that there were several other causes for air pollution in Delhi and NCR like crop burning, industrial pollution, dumping of industrial waste etc. But they claimed that the use of firecrackers resulted in a sudden spike in air pollution and such sudden changes increase the health risks associated with air pollution.
The Supreme Court noting the aforesaid arguments observed that the right to health that is protected under Article 21 of the Constitution has to be protected over the commercial interests of the businesses engaged in the manufacture and sale of firecrackers. However, it also noted that a blanket ban would not be in the interests of justice. In light of the same, the Supreme Court reversed the blanket ban it had placed on the sale of firecrackers and ordered that firecrackers could be burst at designated places. It also directed the appropriate authorities to issue licenses to 50% of the businesses engaged in this practice.
Arjun Gopal v. Union of India : October 2018 [(2019) 13 SCC 523]
In this case, the Court finally settled the issue revolving around the ban of firecrackers. It took into consideration its previous orders in this regard and gave a detailed judgment wherein it issued several guidelines for the sale and use of firecrackers. Let us now discuss the judgement in detail.
Ban on sale of firecrackers by E-commerce websites
The Court noted that at the time when the sale of firecrackers was banned physically in Delhi and NCR, online platforms were used to sell firecrackers in these areas. Several people used to order firecrackers online and burst them on different occasions. The Court directed the E-commerce platforms like Amazon, Flipkart, Snapdeal etc. to stop the sale of firecrackers in these regions and ordered that if they failed to follow this direction, they will be held liable for contempt of court and will be subjected to appropriate fines.
Designated time and place to bust firecrackers
The Court fixed particular durations of time during which bursting of firecrackers was going to be permitted. The Court noted that on the day of Diwali and other religious festivals, firecrackers could be burst from 08:00 PM to 10:00 PM. Further, on the occasions of New Year’s Eve and Christmas, the timing prescribed was 11:45 PM to 12:45 AM.
The Court also directed that firecrackers should be burst only in designated and secluded places and should not be burst within residential complexes, public roads and other public places. The Court directed the State and Central governments to identify and designate places where people could burst firecrackers and inform the public about the same.
It was also noted that if any person would burst firecrackers at a time that was not permitted, he would be liable to pay a fine.
Composition of firecrackers
The Court directed the Petroleum and Explosives Safety Organisation (PESO) to inspect the materials being used for the manufacture of firecrackers. The Court further directed PESO to ensure that no prohibited chemicals were used for manufacturing firecrackers. Some of these banned chemicals/substances include barium salts, lead, mercury, arsenic etc.
The Court also gave PESO the responsibility to suspend licenses of firecracker manufacturers if they were using the banned substances and ensure that the firecrackers already manufactured were disposed of safely.
Role of SPCB and CPCB
The Central Pollution Control Board and the State Pollution Control Board were asked to conduct preliminary monitoring of the air quality in the Delhi and NCR 7 days before and for 7 days after Diwali and other instances where firecrackers were being burst. They were specifically asked to note the spike in air pollution before and after the firecracker was burnt and note which components were increasing in the air.
Green crackers
The Court continued the ban on harmful firecrackers but allowed the manufacture and bursting of low-emission firecrackers that were termed as green firecrackers. These firecrackers gave the same result on busting them, i.e., the visual effects were the same but the pollution caused by them was low due to their chemical composition. This was allowed to create a balance between the right of individuals to carry out the business of manufacturing firecrackers and the fundamental right to health accorded to the citizens by the Constitution.
Gautam Roy v. State of West Bengal : November 2020
In this case, the Calcutta High Court noted the spike in pollution in the State of West Bengal after festivals like Diwali, Chhath Puja, Durga Pooja etc. In light of the same, the High Court in an order passed on 5th November 2020 issued a state-wide ban on the manufacture, sale and bursting of firecrackers. One of the grounds taken into consideration by the High Court while issuing this ban was the COVID-19 pandemic situation in the state. Several people were admitted to the hospitals already and a sudden spike in air pollution would have resulted in worsening of their health conditions. Also, the restrictions on public gatherings in the State were taken into consideration. The order was passed keeping in mind the duty of the judiciary and the State to protect and ensure the safety of the lives of human beings in the state.
This order of the High Court was affirmed by the Supreme Court in an SLP filed in this regard. While affirming the Order, the Supreme Court noted that the High Court of a state can be deemed to be the better judge of the circumstances/events that are happening in the state. Every person has the liberty to enjoy religious festivals but it is important that this liberty is not exercised in contravention to the fundamental rights of the citizens. At the time of this COVID-19 pandemic, the right to life and the right to live a healthy environment has to take precedence over the liberty to enjoy religious festivals. Therefore, to protect the lives of the people in the hospitals and also other elderly people who will be prone to the ill-effects of the spike in pollution, the Supreme Court upheld the order passed by the High Court.
Tribunal on its own Motion v. Ministry of Environment, Forestry and Climate Change : December 2020
The National Green Tribunal initiated suo-moto proceedings to analyse the impact of the use of firecrackers on the environment and issued detailed guidelines to prohibit the same. The Court noted that due to the COVID-19 pandemic in the country, the risk to lives of the human beings in the country was already very high. If this was to be coupled with the increase in pollution that is caused by the extensive bursting of firecrackers, then the adverse effects that will be caused to the patients at risk will be doubled. The NGT noted that it was in the interests of the public at large that precautionary steps be taken to prevent such immediate spikes in air pollution. In light of the same, the NGT issued the following directions:
- There shall be a total ban on the bursting of firecrackers from November 9th 2020 to November 30th 2020 in the NCR. This ban will be applicable to all the cities wherein the average air quality was recorded as poor in the previous year.
- For those cities where the average air quality was rated moderate and above, the State was empowered to issue directions for allowing the bursting of green firecrackers for a maximum period of two hours. In case the State does not issue any directions in this regard, the timings would be 8 to 10 pm on Diwali and Gurpurab, 6:00 AM to 8:00 AM on Chatt Pooja and 11.55 PM to 12.30 AM during Christmas and New year eve.
- At all other places, the State is empowered to determine the use of green firecrackers in accordance with the rules laid down in this regard in the case of Arjun Gopal vs. UOI.
- The Central and State Pollution Control Boards were directed to undertake special drives to ensure that pollution does not increase excessively.
Goutom Roy vs State of West Bengal : November 2021
The Calcutta High Court in October 2021 ordered a complete ban on the sale and use of firecrackers in the State of West Bengal. This order was challenged before the Supreme Court and was set aside by the Supreme Court.
The Court herein held that there cannot be a blanket ban on firecrackers and only those firecrackers are banned that are harmful to the environment and to the health of the citizens, especially elderly citizens and children. The Supreme Court further directed the pollution control authorities to keep a check on the sale of firecrackers and to ensure that no chemical firecrackers are being sold under the guise of green firecrackers. It also noted that the right to health of the citizens cannot be infringed on the account of the celebration of festivals. However, the Supreme Court upheld the order of the High Court partly where the High Court had placed a ban on the import of firecrackers.
Conclusion
A complete ban on firecrackers that was advocated by the Supreme Court initially has not been continued in recent times. Instead, the Supreme Court has tried to create a balance between the right to life of the citizens and the right to carry out the trade of selling firecrackers. In light of the same, it has allowed the manufacture and sale of green firecrackers and has restricted the time periods in which firecrackers have to be burst. Whether or not these directions will be helpful in containing air pollution is a question that will be answered in time.
References
- https://zeenews.india.com/india/dna-exclusive-history-of-bursting-firecrackers-on-diwali-and-its-contribution-in-causing-pollution-2408260.html#:~:text=New%20Delhi%3A%20The%20pollution%20levels,even%20celebrate%20Diwali%20any%20more.
- https://www.hindustantimes.com/india-news/diwali-2021-is-bursting-of-crackers-allowed-in-your-state-check-here-101635733483617.html
- https://www.ft.com/content/1ca9e6d3-75c8-4f36-8699-54e8dbb7306e
- https://www.bbc.com/news/world-46138064
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