Ominous flouting of Apex Court Order on Fire Crackers

‘Diwali gets noisier; more polluted despite SC curbs’ screams the newspaper headline. The most auspicious Hindu festival of Deepawali or Diwali is celebrated all over the country. On this day Laxmi and Ganesha are worshipped for bringing prosperity and happiness. The other reason is that people rejoice the return of Lord Rama to Ayodhya after his victory over the demon king Ravana. It also marks the harvesting of crops heralding the change of weather reminding us to protect and preserve the ecological balance. However, it has now become a very hazardous festival because of the uncontrolled use of firecrackers, although it is associated with lights and lamps. To curb and control the water and air pollution, Parliament passed the Environment Protection Act of 1986 but still, the level of pollution is going on unabated. The Supreme Court of India has played a sterling role by banning many factories to maintain the ecological balance and keep the water and air neat and clean, yet the noise pollution caused by the firecrackers have not only degraded the air quality but also engendered to many diseases.

In one of the recent judgements in ‘Arun Gopal and others vs Union of India and others’, the Supreme Court has ruled that only green firecrackers of low quality, that too only for two hours between 8.00 p. m. to 10.00 p.m. could be used, which if strictly followed would have improved the air quality across the country but sadly it was cared two hoots by the violators of the judgement, which included all-manufacturers, sellers and buyers of the firecrackers. Poor, very poor or severe air quality/air pollution affects all citizens, irrespective of their age. However, the petitioners emphasised more on the health of children because they are much more vulnerable to air pollutants as exposure thereto may affect them in various ways, including aggravation of asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment.

This petition was initially filed in 2015, which has asked for among others to restrict licenses to low hazard fireworks, fireworks to be used only for hours in the evening and teachers must encourage students not to buy and use fireworks. After many long hearings, the Supreme Court decided last month that only the green crackers, with reduced emission, would be permitted to be manufactured and sold. Crackers with toxic effects would be banned. Manufacture, sale and use of joined firecrackers or series crackers were banned because they cause huge air, noise and solid waste problems. Only the licensed traders have been permitted to sell. According to the judgement no e-commerce websites, including Flipkart, Amazon etc., shall accept any online orders to effect online sales. If they do so, they will be hauled up for contempt of court. Barium salts in fireworks were banned. Even those crackers which have already been produced and they do not fulfill the conditions would not be allowed to be sold. Another important point of the judgement was that the governments would encourage community fire cracking as it is practised in other advanced countries. The Apex Court said that even for marriages and other occasions only the sale of improved crackers and green crackers would be permitted.

This judgement has indeed been very lofty one, which has been hailed by all right conscientious people, not only in India but all over the world. However, the implementation of the judgement has left much to be done and there has been a huge hiatus in the preaching and practice. The Diwali which has just gone by has left most of the people wonderstruck because the Supreme Court judgement was observed more in the breach than in compliance. The court had ruled that only low emission firecrackers would be allowed to be burst but the violators had used throughout the night without any fear of the law. The question, therefore, arises what is the sanctity of such orders when they cannot be enforced? In fact, unimplementable Court orders lower down the dignity and the majesty of the law. The Apex Court order was flouted in many ways –from burning non-green crackers to exceeding the time limit.

It must be mentioned here that the pollution in the city of Delhi has gone up 29 times more than tolerable limits. One can see the mornings and evenings in Delhi enveloped with smog. While deciding the case the Apex Court also took into consideration three substantial submissions which were made by the Central Pollution Control Board (CPCB) that (a) Sulphur in fireworks should not be permitted as Sulphur on combustion produces Sulphur Dioxide and the same is extremely harmful to health, (b) it should be burst only in designated places and (c) the joined crackers should be totally banned.

The Court observed that in environmental law, ‘precautionary principle’ is one of the well-recognised principles which is followed to save the environment. Some of the salient principles of “Sustainable Development”, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. The Court said that “we are, however, of the view that the Precautionary Principle and the Polluters Pay Principle are essential features of “Sustainable Development”. The Precautionary Principle- in the context of the municipal law-means: Environmental measures — by the State Government and the statutory authorities — must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.”

In view of the above-mentioned constitutional and statutory provisions, there should not be any hesitation in holding that the Precautionary Principle and the Polluters Pay Principle are part of the environmental law of the country. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. The constitutional and statutory provisions protect a person’s right to fresh air, clean water and pollution-free environment, and it is the inalienable common law right of the clean environment”.

The Court ruled that environment protection is a facet of Article 21. It must be given supremacy over the right to carry on business enshrined in Article 19(1)(g). The Supreme Court said that ‘we state at the cost of repetition that right of health, which is recognised as a facet of Article 21 of the Constitution and, therefore, is a fundamental right, assumes greater importance than other rights. It is not only the petitioners and other applicants who have intervened in support of the petitioners, but the issue involves millions of persons living in Delhi and NCR, whose right to health is at stake. However, for the time being, without going into this debate in greater details, our endeavour is to strive at balancing of two rights, namely, right of the petitioners under Article 21 and right of the manufacturers and traders under Article 19(1)(g) of the Constitution.’ The aspect of economic hardship was also advanced by some, but the Court gave more importance to the protection of life as the economic effect must give way the protection of health.

Needless to say, that firecrackers have led to a high increase in the cases of asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment. Some of the diseases continue on a prolonged basis. Some of these which are caused because of the high level of pollution is even irreversible. In such cases, patients may have to continue to get the medical treatment for a much longer period and even for life. However, it has now become loud and clear that only court decisions cannot bear the desired fruits because it involves a large section of society. Therefore, it needs a greater awakening of the people supported by the law enforcing authorities to strictly comply with court orders.