The Supreme Court on Tuesday refused to impose a blanket ban on firecrackers, permitting the sale and use of “green firecrackers” that comply with regulations relating to air and noise pollution. The court also set limited timings for when these firecrackers can be used – between 8 pm and 10 pm on Diwali and other festivals, and between 11.55 pm and 12.30 am on Christmas and New Year.
The order is the result of court proceedings that started in 2015 over the deteriorating air quality in Delhi and the National Capital Region. However, it is applicable to the entire country. Though the court accepted the view that pollution in the Delhi-National Capital Region is not only caused by the bursting of crackers, it took cognisance of a Central Pollution Control Board study that showed that pollution levels went up 3.5 times on Diwali night last year.
While the order is a welcome step in dealing with a problem that has reached extreme proportions in certain parts of the country, the fixed timings set out by the court may make it unimplementable.
For one, the court has failed to take into account how Diwali is celebrated across the country. In states like Tamil Nadu, the festival is primarily celebrated in the morning. As a result, restricting the bursting of crackers to the evening hours is akin to imposing a North Indian way of celebrating the festival across the country. This is not to say that people in Tamil Nadu do not burst firecrackers in the evenings. It is just that the primary idea of Diwali is associated with morning festivities in some states.
Second, it is uncertain how the police will enforce the order. Given the scale of celebrations, it is impossible for the police to monitor every home on every street of the country. It is also unclear under what sections of the law violators could be booked. Public nuisance could be one, but it is doubtful that the police are in a position to handle the vast volume of cases that this could result.
The Supreme Court has tried to work around this problem by suggesting that the government promote community cracker-bursting and notify open areas or fields for this purpose. But this, too, would place a significant burden on the police as they would have to then ensure that people do not burst crackers right outside their homes. Besides, this is a sensitive matter in many regions, given the religious sentiments involved in firing crackers to celebrate some festivals.
The fixed timings also give rise to other challenges. They could end up forcing revellers to burst their entire stocks of firecrackers in a short period of two hours, defeating the rationale of the restrictions in the first place, which is to bring down pollution. The assumption here is that the court’s order will reduce the total amount of crackers burst on Diwali night, something that will depend on the administration’s ability to implement the order. The restricted timings are even more untenable for Christmas and New Year as the court wants people to start bursting crackers at exactly 11.55 pm.
Larger principles of law
However, the judgement is landmark because of the legal principles it reiterates. First among these is the assertion of a hierarchy among the various fundamental rights. The court has made it clear that religious rights, enshrined in Article 25 of the Constitution, are subject to the right to life, which is guaranteed under Article 21 of the Constitution. The judgement, delivered by Justices AK Sikri and Ashok Bhushan, said:
“We feel that Article 25 is subject to Article 21 and if a particular religious practice is threatening the health and lives of people, such practice is not entitled to protection under Article 25. In any case, balancing can be done here as well by allowing the practice subject to those conditions which ensure nil or negligible effect on health.”
The judges said this applies to the right to do business as well, a point made by cracker traders against the restrictions. “Thus, environment protection, which is a facet of Article 21, was given supremacy over the right to carry on business enshrined in Article 19(1)(g),” the bench said.
This is probably the second major judgement in two months to reiterate the importance of specific fundamental rights over others. In its September 28 judgement overturning a ban on the entry of women of menstrual age into the Sabarimala temple in Kerala, the Supreme Court had argued that religious rights are subject to the right to equality guaranteed under the fundamental rights chapter.