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Too little and too late

Sanjeeb Panigrahi |

Traditionally, Diwali is the festival of lights – the lights to mark the anniversary of the return of Lord Rama to Ayodhya and at a philosophical level to mark the ascendance of light over darkness (Tamaso Ma Jyotirgamaya).

This festival occupies an important space in the cultural landscape of India even though it is celebrated differently across the country. In our living memory, the celebration has been inextricably linked with the bursting of firecrackers, though there have been attempts to negate the presence of firecrackers sans any scriptural sanction. Of late, there is overwhelming concern about human health due to bursting of high decibel firecrackers and consequent health hazards. However, people have an ostrich like attitude to such problems until they become too big to ignore.

The recent Supreme Court order banning the sale of firecrackers in Delhi and in the National Capital Region (NCR) was a case of too little too late. The order was well intentioned and a bold attempt to address a grave issue concerning the health of citizens especially the infants and the old. A cross section of people welcomed the order but was sceptical about its execution. Some viewed it on religious lines, terming it as an affront to the Hindu tradition.

But some vested political interests skewed the narrative, without realising the fact that the apex Court’s order did not impede the celebration of festivals following Indian culture, tradition and rituals. A day after the apex court’s ruling, the Bombay High Court and Punjab and Haryana High Court also followed suit and banned sales of fire crackers in urban areas in Maharashtra and Punjab respectively. In 2016 after Diwali, Delhi’s air pollution levels stood at 29 times the permissible level specified by the WHO. Things get worse in Delhi because in early winter farmers burn their crop stubble in neighbouring Haryana.

This leads to major smog over Delhi making the capital city almost unliveable. Last year, Delhi became a living hell for 10 days. It is an undeniable fact that bursting of firecrackers releases a heavy dose of carcinogens in the atmosphere, presenting a public health challenge for Delhi and NCR regions. But Delhi’s pollution cannot be exclusively attributable to bursting of crackers on Diwali, which is for a temporary period without making a frontal attack on other major sources like vehicular pollution, industrial pollution, garbage etc.

The attempt to regulate fireworks by the apex court dates back to 2005 (in Prevention of Envn. & Sound Pollution v. Union of India), when a bench of the Supreme Court consisting of CJI RC Lahoti and Justice Ashok Bhan heard one of the first cases on this issue and laid down a few essential guidelines relating to firecrackers and problems related to sound pollution.

Earlier, in “Church of God in India vs. K.K.R Majestic Colony Welfare Assn (2000)” the apex Court held that the court can put certain restrictions on controlling noise, even if such noise was a direct consequence of any religious ritual or activity being held. This judgement permits certain reasonable restrictions and those restrictions do not violate Article 25 of the Constitution.

The right to life (Article 21) guaranteed under the Constitution needs to be harmonised with the right to practice and profess one’s religions (Article 25). Despite increasing awareness and the rapidly accumulating evidence pointing to the health issues associated with excessive noise pollution, these continue to be poorly understood by practitioners, policymakers and the public.

While the character of noise and air pollution has altered with changing technological and cultural norms, its essence remains largely the same. The issue has thrown formidable challenge to environmental scientists, planners and policymakers to collectively understand the impacts of environmental noise and air pollution on humans and simultaneously figure out ways to control its excess.

The issue cries out for a technological solution along with attitudinal change in human beings rather than a court monitored legal solution. The issue of pollution emanating from bursting of fire crackers is revisiting the nation with more vigour with every passing year, yet the guidelines framed by the apex court and some other regulatory norms have been flouted brazenly.

Under the Explosives Rules 2008 notified by the government, the sale of fireworks to the public requires a license to sell from the enforcement authority, i.e. the police department in any state.

There are two kinds of licenses that are given for the retail sale of fireworks: a permanent one, for round-the-year sale of fireworks, issued for a period of five years and a temporary license not exceeding a period of one month.

Along with the issue of licenses a set of guidelines have also been prescribed for the licensees. It is true that enforcing authorities, primarily police, run short of manpower to deal with such a scale of firecracker sale in Indian cities, The government is unaware of the quantum of firecracker sales, let alone have real time data on quantities in quintals or kilos to frame a policy on this issue. The Court’s order evoked a high decibel public uproar which is natural as the Courts have not been consistent in their approach to the issue. Barely two years ago, the Supreme Court had opposed curbs on firecrackers.

The sudden realisation about the harmful effects also left firecracker traders in the lurch. According to environmentalists, the crackers are one of the causes of pollution in Delhi which increases during Diwali days though temporarily, but the major culprits are vehicular pollution, industrial pollution and numerous other kinds. But singling out Diwali for curbing pollution is like missing the wood for the trees. In addition, there was an inherent flaw in the SC ruling; it banned the sale of crackers but spared the use of crackers.

More importantly, the whole of urban India has been excluded from the ambit of the order. So many methods were thus used to obviate the apex Court’s order like black marketing, exploring e-commerce portals for selling online crackers and so on. These obvious glitches, unfortunately, escaped the attention of the Court while passing the order. Some Constitutional experts believe that it is not the Supreme Court’s job to make public policy since it is the prerogative of the executive. Encroachment on each other’s turf may destabilise the constitutional fabric.

But on the other hand, judicial activism springs from the dereliction of duty by the executive, non-implementation of environmental regulations, non-compilation of scientific data on the impact of firecrackers on human health etc. The Courts are bound to interfere when the citizens’ right to “breathe clean air” and the “right to health” are in jeopardy.

The argument of the firecracker industry’s estimated loss of Rs. 1,000 crore this year is not convincing in terms of the potential health hazards of the citizens. It is high time the artisans of firecrackers manufacturing units across the country were trained in manufacturing environment-friendly products.

There is a need to develop a grading and certification system. It is imperative that the we assuage the impact of pollution and fight the menace on a daily basis by crossing the boundary of ad hocism and symbolism.

(The author is a Supreme Court Advocate)