Sunday, December 10, 2023

Cracking down

Even as Delhi grapples with pollution every year during Diwali, petitions in the top court have urged the lifting of the ban on crackers. But the Supreme Court and the Delhi High Court have refused to relent

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The Supreme Court on September 13, 2023, refused to interfere with the ban imposed by the Government of National Capital Territory of Delhi on firecrackers in view of the rising levels of pollution. The bench of Justices AS Bopanna and MM Sundresh, while hearing a petition of BJP MP Manoj Tiwari, observed that locally if there was a ban, they would not interfere with it. 

The counsel for the BJP leader submitted that many states, including Delhi, have imposed an absolute ban on firecrackers, while the Supreme Court had only ordered a blanket ban on the sale, storage, purchase and use of firecrackers. However, the Court refused to interfere and told the counsel to find other ways to celebrate.

Tiwari had filed a petition against the firecracker ban imposed by the Delhi government ahead of Diwali in October last year, seeking issuance of guidelines in respect of the sale, purchase and bursting of firecrackers. Tiwari, who was earlier the former Delhi BJP president and Northeast Delhi MP, has sought directions that permissible firecrackers be allowed. His plea stated that the ban was arbitrary and would hamper the livelihoods of many traders and people associated with packaging, selling, marketing of crackers.

An order was issued by the Delhi Pollution Control Committee (DPCC) on September 14, 2022, which stated that there would be a complete ban on manufacturing, storage, selling (including delivery through online marketing platforms) and bursting of all kinds of fire-crackers till January 1, 2023.

Last year, an apex court bench of Justices MR Shah and MM Sundresh had made an oral observation on a similar petition, suggesting the petitioner to spend money on sweets and let people breathe some clean air. It refused to interfere with the ban on sale, manufacture and burning of firecrackers in Delhi-NCR area. Tiwari’s plea sought directions to all states not to take any coercive action like lodging FIRs against common people selling or using permissible firecrackers during the festival season.

The tough stand on cracker sale was also taken by the Delhi High Court. On October 20, 2022, it dismissed a similar petition challenging the September 14, 2022, order of the DPCC. A single-judge bench of Justice Yashwant Varma observed that the material on record showed that the issue of pollution as a result of firecrackers during Diwali was considered by the Supreme Court in Arjun Gopal vs Union of India and Ors. As the petition was still with the apex court, it would not be appropriate for the High Court to consider the issue.

Earlier in 2021, the Supreme Court refused permission to use barium nitrate in firecrackers, stating that celebrations cannot be held at the cost of others’ lives. The bench of Justices MR Shah and AS Bopanna observed: “We cannot celebrate at the cost of life of others. From where do we get that celebration can only be from noisy crackers? Celebration can also be from fuljhadi (sparklers) and does not need noisy crackers.”

Justice Shah said: “The Court is not averse to celebration, but the Court cannot celebrate at the cost of life of others. It is nowhere stated to celebrate using crackers that emit loud noises. Barium salt or no barium salt, major difficulty is that despite the ban on the manufacture and sale of joint crackers, you can go to any state, city or celebration, and see that they are still available in the market and are being used.”

The bench said that the order of the Court on the ban of firecrackers should be followed by all the states. Along with this, the Court also told the firecracker companies that it will not even allow firecrackers made from banned materials in the warehouse. The Court also noted that people suffering from asthma and other diseases are suffering due to firecrackers. People burn crackers at every festival and function, leaving others upset. The bench also asked why FIRs and criminal proceedings must not be lodged against the manufacturers on the basis of CBI’s preliminary report.

Taking cognizance of the status report prepared by the Ministry of Environment and Forests, the top court ordered that a quality control system be installed in every firecracker factory. It also said that the responsibility for monitoring this system should be given to the officers of the Petroleum and Explosives Safety Organisation. The bench expressed strong displeasure at central and state governments on the open sale of crackers and observed that governments cannot play with the rights and health of others.

The Court could also look into the issue of ordering a CBI investigation into the allegations of “fake green crackers” being manufactured, it said. The Court asked under what condition could its order be implemented in this country. Everybody knows, it said. What message went out when a Supreme Court order is not implemented, the bench asked, observing that they were sitting to protect the rights of people.

Green crackers were allowed, but crackers containing harmful chemicals are also available in the market, it said. Central and state agencies should strictly follow the order. They cannot play with the lives of citizens, the Court said. Justice Shah clarified that the order to ban firecrackers was given in the larger public interest. It should not be seen that the Court had banned firecrackers for a particular festival.

The bench had also clarified that there was no total ban on firecrackers and only those firecrackers were banned that contained barium salts. Green crackers were permissible following directions issued by the Supreme Court in 2018.

It was in October 2017 that the top court banned firecrackers in Delhi. As a result of this, the industry said it faced losses of Rs 1,000 crore. After the National Green Tribunal (NGT) ordered a ban in the NCR region on the sale and use of crackers in 2020, the Council for Scientific and Industrial Research developed green crackers made from cleaner raw materials. Their emissions and sounds are lower. However, they too contain harmful pollutants such as aluminium, barium, potassium nitrate and carbon. 

—By Shivam Sharma and India Legal Bureau

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