Saturday, December 2, 2023

Diwali crackers: SC sets aside Calcutta HC order on firecrackers, says can’t have a complete ban

The bench has observed that the High Court has proceeded to pass the order of total ban by observing practical difficulty in complying with the order of Supreme Court dated 23.10.2018 in WP(C) 728/2015 without giving state, an opportunity to make its submission with respect to the enforcement mechanism used by the state.

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The Supreme Court on Monday set aside the Calcutta High Court order imposing a total ban on firecrackers in West Bengal during the time of Kali Puja, Chhat Puja, Diwali, Jagdharti Puja and other festivities.

A Supreme Court vacation bench of Justice A.M. Khanwilkar and Justice Ajay Rastogi while setting aside the Calcutta High Court order directed the writ petitioners or any other interested party to approach the High Court and place before it the adequate materials so that the state could reply. 

The bench has observed that the High Court has proceeded to pass the order of total ban by observing practical difficulty in complying with the order of Supreme Court dated 23.10.2018 in WP(C) 728/2015 without giving state, an opportunity to make its submission with respect to the enforcement mechanism used by the state. 

“For the time being we only reiterate the position recorded in the order of the Supreme Court on 29.10.2021 (wherein online sale of crackers were banned and time to burst crackers was fixed). Additionally the State of WB will explore the possibility of ensuing that no banned materials are imported. The mechanism may be strengthened.”

Senior Advocate Siddharth Bhatnagar appearing for the Association of Firecracker Dealer’s has submitted that despite three orders of Supreme Court and two orders of High Court, observing that there will be a total ban in only those areas where air quality is poor or lower than poor, certified green crackers will be allowed in areas other than these.  

He has also submitted that there is prevalent order of the National Green Tribunal, the green crackers that are identified shall be allowed otherwise the manufacturers will be troubled at the eleventh hour. He further submitted that High Court has erroneously observed that it would be an impossible task for the police/ law enforcement agencies to ascertain the veracity of the certificates of the crackers which are being used by the general public at the time of these festivals, irrespective of the classification under which they are sold. He stated that no such argument was submitted during the proceedings by the state before the High Court. Senior Advocate Malika Trivedi appearing for Siliguri Firecrackers Association seconded the argument of Bhatnagar. 

On the other hand, Senior Advocate Gopal Sankaranarayan, though not a party to the proceedings before the High Court, but since he was the petitioner in WP(C) 728/2015, submitted that crackers were banned for a number of reasons, for example, child labour, injuries etc. Thereafter, green crackers were introduced. However, it is observed that these manufacturers were only making normal crackers while putting a green label on them. He further apprised the court that, not only the green label is fake but the QR code to verify the ingredients of the fire cracker also contains no information. It also submitted that PESO has only allowed 4 crackers out of 300 and High Court has only imposed reasonable restrictions considering Right to Health of the citizens. He also submitted that the High Court order can be reconsidered in light of Dealers since it was only focused on manufacturers.   

Senior Advocate Anand Grover, appearing on behalf of the State of West Bengal, submitted that the state is facing difficulty in ascertaining the veracity of the certificates used. He has further submitted that High Court was wrong in observing that the state is lacking in its mechanism. He has stated that the state is all throughout complying with the order of the Supreme Court. “West Bengal Police is active…there is an unfounded apprehension by the Calcutta High Court,” he stated. 

Justice Khanwilkar asked whether the state was given the opportunity to comply and noted that, “Mr Grover, perhaps, the High Court was not satisfied by your action.”

Grover submitted that there is a green logo; there is QR code to check the veracity of Green Crackers. Apart from this, the state is also lodging FIR. 

The bench while observing that there is no cracker manufacturing unit and these crackers are imported within the state. The bench, then sought, whether there are any other ways to check the green crackers. 

Senior Advocate Madhumita Trivedi stated that there is only a QR code and no other mechanism. By scanning the code, one knows whether it is green cracker or normal cracker. 

Grover submitted that there are many borders and nakas and checkpoint and other access points which makes it difficult for the police and other officials to keep a check. However, the police visit the markets everyday to keep a check. 

“In 2018 we arrested 24, in 2019 22 FIRs were lodged and 26 were arrested, in 2020 190 FIRs were lodged and in 2021 till this month we have lodged 7 FIRs and arrested 10, though not so much.”

The bench then observed that the state needs to strengthen its system.

Advocate-on-record Taruna Ardhendumauli Prasad and Ms.Mamta Tiwari, appeared in the hearing representing Som Mandal, a resident of Kolkata and the managing partner of the FoxMandal. Mandal challenged the HC order on the ground that the order was passed in a PIL by a self-proclaimed activist Roshni Ali and the said PIL was not supported by any data or reports.

The High Court on a vague petition that too from a woman of another religion passed the order and ignored the fact that the Supreme Court has allowed to celebrate Diwali all over the country with some approved green crackers. Diwali is the festival of lights and bursting crackers are a tradition followed from ages. The High Court passed a blatant order and over-stepped in putting a complete ban on crackers in the state of West Bengal. The Supreme Court heard our grounds and was please to set aside the high court order because that was depriving the general public from celebrating the Festival of Lights, said Taruna Ardhendumauli Prasad.

Advocate Rachit Lakhmani, appearing for the petitioners before the Calcutta High Court, argued that it is not possible to track down fake crackers that have already entered the state. He has further submitted that the concept is all together different, whether green or normal crackers, demarcated zones like hospitals, residential zones of old citizens etc. should be recognised. The order states that people can use green crackers between 8 to 10 PM, however it is not clear about the demarcated zones. Thus, the High Court order needs not to be interfered with.

The bench observed that, “There can’t be a complete ban, there has to be some check. We can’t take the issue separately; all the states are following it except West Bengal.”

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