By: Nikhil Reddy Kothakota

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Editor’s Note: This blog post is the first in the forthcoming two-part blog series, discussing the recent cracker ban, its history and the unique position that the Supreme Court found itself in, i.e. reconciling various fundamental rights, reconciling religion with the environment.

INTRODUCTION

Indian jurists have always sought for a reconciliation of our fundamental rights, with interpreting them as pieces of a puzzle that our constitution makers intended to fit perfectly into the cracks and crevices of each other, to present a complete picture of the inalienable nature of rights at the prime of their fundamentality.

But, from time to time, we find ourselves in the position, where certain rights seem to take precedence over the others and our constitution makers, unfortunately, could not put this problem to a test, without firstly even having introduced the rights to the Indian society and there are enough preventive measures to ensure as less conflict as possible, as in Article 25 of the constitution, where in the text of the same, the right to freedom of religion is applicable, provided it does not affect public order, morality and health (any of which, if affected, would have an immediate effect on the likes of Article 21). The Courts, as well, believe staunchly in the harmonious interpretation of fundamental rights, as seen popularly in Maneka Gandhi, and a majoritarian basis of interpretation cannot be held proper in a liberal democracy, where each and every right of an individual, to an established extent, is valid.

Even in Arjun Gopal, where petitions were filed for putting hold, or rather, banning of a determinant of pollution [air pollution, that is, as will be the scope of this article] in India- burning of fire crackers, especially during the festivals of Diwali and Dussehra, and in various other forms and shapes of celebration, be it religious, or secular, we see the same issues arise.

Hence, we shall deal with the history of the cracker ban and the future of it under the head of the following issues:

1. The value of a ban based on public perception.
2. The ban on the basis of fundamentality of 19(i)(a) and 19(i)(f), which talk of Freedom of speech and expression and Freedom of trade and profession respectively, Right to life under 21 and Freedom to profess any religion and fundamental religious practices under Articles 25 and 26.
3. The Court’s stance on interpreting the three rights and the way forward.

CURRENT POSITION

As mentioned, irrespective of the number of petitioners, the number of the aggrieved, the Court has a solemn duty to protect the fundament rights that cannot be waived off for the sake of a majority voice that might have a differing claim, and the same principle of non-waiver has been exemplified in our traditional jurisprudence (rights, be it rights conferred for personal protection or rights which have been conferred in public interest, if waived, or even given the opportunity to waive, would result in massive exploitation of the same rights, which compromised their inalienable nature, as was held in Basheshar Nath and Olga Tellis). Furthermore, the cracker ban, as has been used self-referentially is essentially a partial hold on the burning of fire crackers outside of the specified time slots as ordered by the courts, with emphasis to be put on green crackers (Reduced Emission Firecrackers) and restrictions on trade in places such as Delhi, as in the para 42 of the judgement.

“… (iv) The sale shall only be through licensed traders and it shall be ensured that these licensed traders are selling those firecrackers which are permitted by this order.

(v) No e-commerce websites, including Flipkart, Amazon etc., shall accept any online orders and effect online sales. Any such e-commerce companies found selling crackers online will be hauled up for contempt of court and the Court may also pass, in that eventuality, orders of monetary penalties as well.

(viii) Even those crackers which have already been produced and they do not fulfil the conditions mentioned in… (green crackers)

(x) PESO (Petroleum and Explosives Safety Organisation) will ensure the suspension of the licenses of manufacturers of such fireworks items (other than green crackers) and

(xi) PESO will ensure that only those crackers whose decibel (sound) level are within the limits are allowed in the market and will ensure to take action by suspending the licenses of the manufacturers on such violations and disposal of such lots….

(xiv) On Diwali days or on any other festivals like Gurpurab etc., when such fireworks generally take place, it would strictly be from 8:00 p.m. till 10:00 p.m. only. On Christmas Eve and New Year eve, when such fireworks start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only.

(xvi) All the official respondents, and particularly the Police, shall ensure that fireworks take place only during the designated time and at designated places…that there is no sale of banned firecrackers…”

If the above mentioned are the negative aspects of the order issued, the court has also ordered certain positive and affirmative action on part of the governments, to induce education regarding the ills of fire-crackers, to check into the levels of harmful substances and hence, act as a monitoring agent in the sale of fire-crackers, promoting community fire-cracking and henceforth, but an important and pertinent question remains and is bound to arise, which the court could not delve into– Is the burning of fire-crackers an essential religious practice (Issue 2), the manufacturing of which affects the livelihood of many and its simple co-relation with the levels of pollution (Issue 3)?

The Court, as mentioned, was constrained within time (as the festival of Diwali was approaching when the judgment was passed, with most of the manufacturing of fire-crackers almost complete), when the order for such a partial ban was passed, and had assumed the importance of the bursting fire-crackers on a basis of presumption without the same being a core issue of contention, as in para 36, “…burning of crackers during Diwali is a part of religious practice…”. Therefore, the prospective analysis of the future of such judgment has to begin, wherein the Court has to undeniably assess the nature of bursting crackers, because until now, the same issue, albeit has been raised from time to time, did not garner enough attention, as was ancillary to the actual grievance. In Vellore Citizens’ Welfare Forum and A.P. Pollution Control Board, as cited by the petitioners, the arguments were only meritorious and were conceded only to extent that- the precautionary principle of environmental jurisprudence allows the court a chance of reasonable apprehension, thus, effectively putting a partial ban on bursting of crackers, due to undeniable and undisputable facts of increased public health risks immediately after the festivals of Diwali and Dussehra. Even in Re: Noise Pollution, which although held that secular activities which flow from religion can still come under the privy of the test of essential religious practices, the same issue was not addressed, the scenario being the same as in the previous cases such as Durgah Committee.

Every time the issue of a cracker ban comes up, the Courts, irrespective of their stature, cannot grant reliefs that are essentially of an interim nature, masqueraded as final decrees and orders, and once and for all, the highest court of the land ought to determine and inspect this question, not the basis of public outcry, but on the basis of its importance to the fabric of secularism and for expediency of court proceedings.

HARMONIOUS INTERPRETATION AND THE NEED TO DETERMINE ESSENTIALITY

The Court in this current case has refrained from giving a ‘conclusive determination’ (para 43 of Arjun Gopal) of a solution to the question of conflicting rights and interests, and has refused to hold production or manufacturing of crackers ‘res extra commercium’ (a thing outside commerce, that may not enjoy the same fundamentality as other products or traders due to its essentially volatile and damning nature, as we usually see in cases such as manufacture of tobacco which has proven adverse and extreme effects ) and this non-declaration can be justified on the  ground that there exist effective alternatives to the same, in the form of ‘green crackers’, with less dangerous compounds and mixtures of chemicals, thus reducing the workers’ risk of exposure to harmful substances and to the general masses as well, thus conferring the right to freedom of expression and free trade practices. This conserves the freedom of religion of the particular classes of citizens, along with effectively negating, to the most part, the threat to the right to life of the petitioner, that was being infringed upon.

So, it appears that interpretation can be achieved upon without determining the essentiality of the practice, and this further looks to be in-line with the principle of non-interference with religious practices, thus maintaining a secular spirit. However, our judicial history has shown, the ineffectiveness of the orders passed from time to time (with burning of crackers before and beyond the time slots and lack of enough personnel to actually make sure that the partial ban is strictly enforced) in curbing pollution in Delhi and surrounding areas from In Re: Noise Pollution, until the passing of the judgment in Arjun Gopal, with ever increasing populations and albeit reports of lower pollution are evidences of the success of the cracker ban to a very limited extent, any action taken solely on the grounds of increased pollution would not stand the test of time, especially, if the depth of religious freedom is not examined, coupled with the perception that article 21 is overshadowing articles 19 and 25 (while the genus of right to life is expected to inculcate the latter two rights into its ambit).

While the Air Quality Index (AQI) has gone down from severe to very poor, it is still not significant enough reduction to garner public support or attention for Suo moto regulation of the levels of pollution caused per capita. Green crackers, for now, are a source of reconciliation of such rights in-line with non-interference of Arjun Gopal, but with a rapid shift from an anthropocentric to a bio-centric perspective of assessment of rights, the determination of the question will prove detrimental to the right of a clean environment for future generations.

A ban, has almost temporary connotations, and is not tantamount to the word illegal, which is more sustainable in curbing the menace of high-pollution crackers and what we need is not a ban on the production on high pollution-emitting crackers, but a complete upheaval and replacement of them by more eco-friendly options, and for the same reasons, time is of the essence.

Fool-proof testimonies of interveners who claim increased hospital visits and public health risks, immediately after festivals such as Diwali point towards a reasonable risk, and following the same line, the Court should be bound to set a deadline after which no crackers other than green crackers shall be sold (the current judgment lacks the perceived time limit), as otherwise, a line of manufacturing once begins, shall be rendered useless due to a perceived delay in enforcement of judgment, which shall again affect one’s right to free trade, and the same shall also render removal of such banned crackers from the market much less plausible.

Therefore, one can conclude for now, that determining the nature of the cracker ban is very essential to the current context of Indian Jurisprudence, as it is an issue that would determine the face of secularism in our country and the lengths that we ought to go to protect our environment. The essential religious practices test, which is to be applied for this shall be discussed in the next post, along with why the said test might not be the best solution to maintain the fabric of Indian secularism that we deem so pertinent.

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(Nikhil Reddy Kothakota is currently a student at Symbiosis Law School, Hyderabad. His interests lie in Comparative Public Law and extensive Public Policy, especially in the areas of Education and Government Accountability, and hopes to make a career out of it.)