This article is written by Eklavya Malvai, a student of Amity  Law School and an Assistant Editor of iPleaders Blog.

INTRODUCTION

Diwali, widely known as the ‘festival of lights’ is around the corner and is one of the most celebrated festivals in India. A weeklong affair where families come together to celebrate this festival and burning crackers has often been the highlight of this occasion.

With the increase in sound and air pollution levels, the number of cases been reported due to the same have increased and has created a cause of concern among the citizens and the government. The number of breathing ailments among infants has significantly risen, leading to various awareness campaigns and other actions by the government authorities.

We as Indian citizens must be aware of certain rights and duties which are attached to these celebrations and must be adhered to at all times, not just for the benefit of the society as a whole, but for our own well-being as well.

THE ISSUE OF NOISE AND AIR POLLUTION

Over the years, a large part of the pollution started voicing their concerns over the rising levels of noise and air pollution, which together combined can be extremely lethal since individually they lead to various health problems.

With the various types of crackers, the level of pollution caused is extremely high, which makes the air unbreathable and noise levels intolerable.

As per a study, fire-crackers increase the level of sulphur dioxide 200-fold above the safety limits prescribed by World Health Organisation (WHO). The pollution can trigger asthma attacks and cause new cases of asthma.

Not only humans, but every year hundreds of dogs are injured on the spot of such activity, or lost never ever to be found. An animal or bird need not be absolutely nearby to suffer – deafening loud sudden sounds cause panic in almost every creature in the vicinity. A dog’s hearing capacity is 3,000 times more than a human’s. Even a 90-decibel sound, the noise level of an average cracker, is enough to scare a dog.

Every year, numerous cases are reported in the national capital of India, Delhi related to burn injuries as well as 30% to 40% increased cases of wheezing, respiratory diseases, exacerbation of bronchial asthma and bronchitis patients have been reported during and post-Diwali.[1]

Therefore, the government took up this issue seriously and enacted various legislations, including the Supreme Court giving out certain judgements and orders to curb this increasing level of combined pollution.

LAWS AND REGULATIONS

Over the years, none of us has really paid attention to any of the laws that are attached with burning crackers and the various restrictions over the type of crackers that can be manufactured and sold. Hence, as a result, the implementation of many of these laws has been weak, which has led to public injury due to lack of awareness among the citizens.

As per the “Environment Protection Act, 1986 and the Environment Protection Rule, 1986 and 1999 (amendment) rules”;

Rule 89 lays down that “The manufacture, sale or use of firecrackers generating noise level exceeding 125 dB(AI) or 145 dB(C) pk at 4 meters distance from the point of bursting shall be prohibited.” 

Determining dB (decibel) levels is something which requires an expertise and hence it must be on the part of the manufacturer to adhere to, and a duty of the citizen to not buy crackers which violate this provision.

Hence, how does one identify such crackers?

 The Explosives Rules 2008 (Rule 14) mandates that “every manufacturer shall on the box of each firecrackers shall mention details of its chemical content, sound level and that it satisfies requirements laid down by the chief controller”

Hence, one must keep in mind the above provisions mentioned before purchasing any fire crackers to ensure highest standards of safety.

SALE OF IMPORTED CRACKERS

The Department of Industrial Policy & Promotion, Ministry of Commerce & Industry has banned the illegal import, possession and sale of fireworks of foreign origin. The manufacture, possession, use, sale, etc. of any explosive containing sulphur or sulphurate in admixture with any chlorate is banned in the country.[2]

The central government recently instructed the state governments to take action against the sale of Chinese crackers and ordered a stringent crackdown on any such sale, as these crackers are much more harmful and contain certain chemicals which are beyond the Indian permissible limits of safety standards.

THE SUPREME COURT ORDER OF 2005

In the landmark case of 2005; “Prevention of Envn. & Sound Pollution v. Union of India”[3], the apex court laid down a few essential guidelines relating to firecrackers and addressing other problems of sound pollution.
The key highlights being;[4]

• The Department of Explosives may divide the firecrackers into two categories– (i) Sound emitting firecrackers, and (ii) Colour/light emitting firecrackers.
• There shall be a complete ban on bursting sound emitting firecrackers between 10 p.m. and 6 a.m. It is not necessary to impose restrictions as to time on bursting of colour/light emitting firecrackers.
• Every manufacturer shall on the box of each firecracker mention details of its chemical contents and that it satisfies the requirement as laid down by Department of Explosives.

This order came into force 10 years ago, in pursuance to Articles 141 and 142 of the Constitution. The authorities have been reluctant and apprehensive in implementing this order which has led to the Supreme Court being discontent and expressing concern over the same. The court has directed that non-implementation of the same is leading to gross violation of the Fundamental Rights which must be preserved and respected at all times.

Arguments have often been made against such restrictions on the grounds that it violates Article 25 of the Constitution, i.e., to practise and propagate our religion freely. What one must keep in mind that Fundamental Rights are not absolute in nature and falls under the umbrella of certain reasonable restrictions. Diwali, per se, is considered to be a festival of lights.

The apex court in its landmark judgement; “Church of God in India vs. K.K.R Majestic Colony Welfare Assn” held 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 practise one owns religion.

The question to ban crackers

In a recent case, 3 toddlers moved to the Supreme Court with a petition to take action against the rising levels of air pollution, which has led to lethal levels of toxic in the air, which is directly affecting the youngest of the population.

The Supreme Court dismissed this petition which was aimed at putting a blanket ban on bursting of crackers on Diwali or designating a particular place for bursting crackers. The Supreme Court exclaimed that such a blanket ban would be lethal and would cause an unnecessary uproar in the society. The court, however, has directed the government to spread awareness about the hazardous effects of crackers.

CONCLUSION

Bursting crackers has been a custom in our society which is now proving to be lethal for the coming generations. Article 21- Right to Life, is a basic human right and subsequently a Fundamental Right for Indian Citizens, and to breathe clean air constitutes the same. Hence, it is necessary to exercise certain prudence and caution in this situation and one must give precedence to various rights in terms of their necessity.

The rest is up to your fine sense of judgement and wisdom.

Happy and a safe Diwali to one and all!

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[1] http://re.indiaenvironmentportal.org.in/files/file/air%20and%20noise%20quality%20in%20India%20during%20diwali.pdf

[2] Notification GSR No.64 (E) dated 27.1.1992

[3] AIR 2005 Sc 3136: (2005) 5 SCC 733

[4] http://lawyersupdate.co.in/LU/20/1725.asp