SC imposes partial ban on crackers

The Supreme Court (SC) refused to impose a complete ban on sale of firecrackers on Diwali and conditionally allowed sale of fireworks that meet the standards of low emission and decibel in Delhi and the National Capital Region (NCR). The judgement is crucial as the residents of the NCR have for long been suffering from extremely high levels of air pollution, which peaks every year during Diwali. However, it also kept in mind the interest of those dependent on the manufacture and sale of firecrackers and struck a balance by not imposing a complete ban. A bench comprising justices A.K. Sikri and Ashok Bhushan limited the bursting of firecrackers from 8pm to 10pm for Diwali and between 11:55pm and 12:30am on other occasions such as Christmas and New Year. These timings would be applicable all over India. The bench had expressed the need to take into account the fundamental right of livelihood of firecracker manufacturers as well as the right to health of over 1.3 billion people in the country.

Harmful effects of firecrackers:
Firecrackers affect health. Aluminium in crackers could cause skin ailments. They may contain barium salt, which lets out toxic gases that interfere with our respiration. Bursting crackers in general triggers problems such as asthma, coughing, bronchitis, and can aggravate problems associated with lung disease, and in extreme cases could cause nervous system breakdown and cognitive interference. In the last few years, the air over the NCR region was thick with pollutants during and around the festival, which aggravated pulmonary disease among the young and the old alike.

The precautionary principle:
In rising above the “whataboutery” that often characterises debates on air pollution in Delhi-NCR, and choosing instead to proactively regulate the use of firecrackers during festivals like Diwali, the apex court applied the well-known “precautionary principle”. The court fell back on the Vellore Citizens Welfare Forum case, which elucidates the principle in three parts.

• First, the government and statutory authorities must “anticipate, prevent and attack the causes of environmental degradation”.
• Second, when threats of serious and irreversible damage exist, the lack of scientific certainty should not be made the basis for postponing measures to prevent environmental degradation.
• And third, the burden of proof must be placed on the entity engaging in the potentially environmentally degrading practice to show that its action is harmless to the environment.

This case was important for reading the precautionary principle into India’s constitutional and legislative landscape, including Article 21 of the constitution, which guarantees the protection of life and personal liberty.The rationale for this principle is that certain human interventions could have an impact on health or the environment that may be both negative and irreversible in nature. Given the severe, and potentially irreversible health hazards resulting from the use of firecrackers, the mere absence of scientific certainty, or the insufficiency of data on the exact impact of firecrackers on Diwali, weren’t deemed valid grounds for not intervening in their regulation.

This is not the first time that the Supreme Court has used the precautionary principle to make a decision that has had a significant bearing on air pollution in the capital. In 2002, the Supreme Court ordered taking diesel buses off the roads of Delhi and making compressed natural gas the fuel for public transport. Earlier this week, the National Green Tribunal applied the principle to direct state-owned oil firms to immediately install vapour recovery devices at all fuel stations in NCR to mitigate the air pollution caused by toxic vapours from petroleum products.

Religious freedoms versus the right to life:
Another stream of opposition to the plea for banning firecrackers came from a group that likened the use of firecrackers for Diwali to a core and essential religious practice for Hindus since it has been in vogue for “time immemorial”. The plea for protecting this practice was made under Article 25(1) of the constitution, which provides the fundamental right to freely “profess, practise and propagate religion”.

The freedoms under Article 25(1) have been made subservient – by the very text of the constitutional provision – to “public order, morality and health,” as also the other fundamental rights in Part III of the constitution.In its judgment on firecrackers, the apex court observed that if a religious practice threatened the health and lives of people, the Article 25(1) protection could be overridden, or balanced against the fundamental right to life under Article 21. The right to life has been interpreted to include “the right of enjoyment of pollution free water and air for full enjoyment of life.”

An optional practice like the bursting of firecrackers on Diwali – a relatively recent phenomenon for most Hindus – is certainly not one without which Hinduism cannot survive, and should not be given the colour of an “essential religious practice”. But more importantly, since Article 25(1) is subject to the other fundamental rights in the constitution, it would indeed be untenable to claim that a group of people should be allowed to use religion as a shield to severely pollute the air (a common resource), in a manner that drastically, or potentially even fatally, jeopardises the health of others in society.

By: Dr. Vivek Rana