The Supreme Court erred on a number of counts in prohibiting the sale of fireworks in the National Capital Region during the period leading up to and immediately following Diwali. First, it failed to take into account the trajectory of Diwali celebrations down the years. I am no fan of firecrackers, the class of fireworks that produces noise rather than pretty patterns of light. I have never understood the mystique of explosions that create sounds at decibel levels that can cause pain and even significant hearing loss. Our tolerance, and even enjoyment, of pure noise is to my mind a civilisational drawback. For someone like me with zero religious faith, the Hindu festive season that begins in September with the synthesisers and road-blocking processions of Ganeshotsav and lasts till the final ear-numbing explosions of Bhau Beej provides much annoyance and only a little joy, the latter related to delicious foods associated with each occasion.
Back in the 1980s and 1990s, Diwali had become unbearable. The smoke from firecrackers would fill my home, and unremitting detonations would make conversation impossible. It’s got considerably better over the years, as sales of fireworks have declined precipitously. Schools are obviously doing a good job of teaching students the dangers of pollution. Besides, youngsters now have many more options to entertain themselves round the year and no longer look forward to Diwali the way they did in the past. By prohibiting the sale of fireworks, the Supreme Court has brought down the hammer on a tradition that is growing increasingly true to its roots of being about light rather than sound.
Ignores custom
This leads to the second unfortunate aspect of the judgment. It takes far too little cognisance of the importance of custom. Alongside my misgivings about Hindu festivals, I recognise within them a precious kernel of beauty. The idea of a celebration of colour, a celebration of light, a celebration of dance, is marvellous and worth making every effort to preserve. But courts look for scriptural sanction, which is not always evident in these festivities. Fireworks were invented in China some 1,400 years ago and came to India centuries later, and cannot therefore be considered integral to religious faith. And yet, they are undoubtedly integral to Diwali, which is among the most important and widely celebrated Hindu festivals. It is disconcerting that the centrality of fireworks in the matrix of Diwali celebrations was barely considered by the court.
No justification given
Neither scriptural sanction nor customary importance should stand in the way of prohibiting practices that are truly inequitable or dangerous. The court’s third failure was its inability to demonstrate that Diwali fireworks cause a level of harm that would justify prohibiting them. Instead, it agreed with a previous verdict in backing, “the ‘precautionary principle’ which mandates that 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”. Surely we were entitled to an explanation of what serious and irreversible damage could be attributed to a four-day festival in the context of an annual months-long period of extremely high pollution. Such an explanation would have to go beyond the blindingly obvious fact that pollution levels rise as a result of fireworks. A more important fact is that air quality in Delhi has deteriorated even as the pollution caused by fireworks has fallen because fewer fireworks are burst each year.
State agencies not held accountable
The fourth failure of the court involved letting state agencies off the hook while threatening the livelihoods of hundreds of private citizens. When the issue came before the court last year, it asked the Central Pollution Control Board to study the effect of fireworks on levels of suspended particulate matter in the atmosphere and report back in three months. In response, the pollution control board did absolutely nothing. When the matter came up next, it passed the buck to another government body called Petroleum and Explosives Safety Organisation, claiming the study wasn’t within its jurisdiction. Dereliction of duty of this kind ought to be a sacking offence.
The bench of Justices Madan Lokur and Deepak Gupta complained about the pollution control board’s inaction:
“What has really disturbed us is that the CPCB [Central Pollution Control Board] was directed on November 11, 2016 to study and prepare a report within three months on the harmful effects of the materials used in the manufacture of fireworks. It is astonishing that the CPCB has not conducted the study and prepared a report as directed.”
Yet, the court did absolutely nothing to punish anybody from the pollution control board. When government employees know they can defy the highest court in the land and get away scot-free, what incentive do they have to do their jobs?
Retailers who have stocked fireworks, meanwhile, will bear the brunt of the Supreme Court’s decision. I don’t know how many will go bankrupt as a result of buying crackers they cannot sell, but the number could be in the dozens.
Unwarranted ad hocism
In the absence of a pollution control board report or any other rigorous data related to Diwali crackers, the court’s decision was perfectly ad hoc. This ad hocism, the fifth shortcoming in the verdict, was exacerbated by two other strange decisions. The court prohibited the sale of firecrackers but not their use because, in its view, “Snapping the supply chain of fireworks was considered to be the more practical way of addressing the menace instead of banning the burning [of] the crackers by individuals as it would have been difficult to monitor and enforce the burning of the crackers by the citizenry.” By not trusting the police to do their job, the court opened up a new avenue of corruption, the disguising of locally sourced fireworks as sales from outside the state.
The final ad hoc aspect of the judgment lies in its geographical limitedness. There are towns across India, especially North India, which are as polluted as Delhi. It makes no sense whatsoever for a court to restrict sales in the nation’s capital while allowing them in other places with terrible air quality. Judges seem sometimes to forget that they are part of the Supreme Court of India and not the Supreme Court of Delhi.
