Firecrackers Ban: Inter-relation between Constitutional and Environmental Law
The article 'Firecrackers Ban: Inter-relation between Constitutional and Environmental Law' is a thorough study of the harmful effects of firecrackers, along with the legislative and judicial steps to combat it.
The article 'Firecrackers Ban: Inter-relation between Constitutional and Environmental Law' by Tanmay Mehra is a thorough study of the harmful effects of firecrackers along with the legislative and judicial steps to combat it.
Initially supported by the Supreme Court, a complete ban on firecrackers has not been upheld in recent years. Instead, the Supreme Court has worked to balance a person's right to life and their ability to engage in the firecracker trade. Hindus have consistently practised it since the beginning of time. It is also entitled to protection as a fundamental right under Article 25 of the Constitution as a fundamental religious practice. The preservation of the environment is not the only responsibility of the state but also of the people living in the country. The right to live in a noise-free and clean environment is covered under Article 21 of the Constitution, which is violated by using the firecracker.
Introduction
Firecrackers have been considered a symbol of joy and happiness for a long time. Firecrackers bring blessings and happiness into people's life. It is argued that bursting fireworks is a religious practice that Hindus have consistently engaged in since the beginning. As such, it is entitled to protection as a fundamental right under Article 25 of the Constitution as a core and essential religious practice.
On the other side, those who are against using firecrackers contend that the main components cause the production of smog, which blankets cities like Delhi in a toxic atmosphere. Bursting firecrackers produce noise pollution in addition to contributing to air pollution. They further contend that using fireworks violates several Constitutional rights, including the right to live in a quiet and clean environment guaranteed by Article 21 of the Constitution. Environmental preservation is not just the responsibility of the government but also of the people. In the above two paragraphs, we have observed two different opinions on banning firecrackers with the backing of laws. In this article, we will look into the interaction between constitutional law and environmental law on the Firecracker ban.
Laws in India to control Air Pollution
In 1972, the UN Conference on the Human Environment was held in Stockholm (also called the Stockholm conference). At the conference, the resolution has passed for the prevention and control of pollution and promulgated for the preservation of the environment. India also signed the undertaking because it was also part of the conference. In pursuance of the undertaking, the Government of India enacted the Air (Prevention and Control of Pollution) Act under Article 253 of the Indian Constitution. This act aims to enhance the quality of the air, control air pollution and take necessary steps to prevent it.
To execute the provisions of the Act, “The Air (Prevention and Control of Pollution) (Union Territories) Rules, 1983” has been passed under section 54 of the Air (Prevention and Control of Pollution) Act.
States which have banned fire crackers
Delhi
The SC refuses the plea filed against the direction issued by the Delhi Pollution Control Committee on September 14, 2022, for an absolute ban on the manufacturing, sale, storage and bursting of all types of firecrackers till January 2023. The Bench of Justice M.R. Shah and M.M. Sundresh could not find it urgent to hear the plea and orally said,
“Spend your money on sweets…..Let people breathe clean air”
Uttarakhand
In Uttarakhand, a Public Interest Litigation plea has been filed against the firecrackers sellers who set up their shops and go-downs in the Ramlila ground in Haldwani. Under the PIL, the mentioned area is highly congested, and the firecracker shops can be a danger to the residents. The Uttarakhand High Court directed the District Magistrate to take appropriate action and locate the shops in a place where there is no danger to the life of the public. [Lalit Mohan Singh Negi v. State of Uttarakhand and Others, Writ Petition (PIL) No. 190 of 2019]
West Bengal
The State Pollution Control Board and the state police have been ordered by the Calcutta High Court to forbid the importation and sale of firecrackers other than green crackers with QR codes in any location throughout the State of West Bengal. The State PCB and the State Government have also been ordered by Justice Joymalya Bagchi and Justice Apurba Sinha Ray bench to implement public awareness campaigns to raise awareness of the limitations on the purchase and use of fireworks during the holiday season. [Sabuj Mancha & Anr. v. State of West Bengal & Ors, WPA (P) 292 of 2021]
Punjab
The minister of environment, science, and technology, Gurmeet Singh Meet Hayer had allowed the bursting firecrackers on Diwali from 8 p.m. to 10 p.m. He permitted only green firecrackers for sale through authorised dealers and that the manufacture, stocking, distribution, sale, and usage of connected firecrackers are prohibited in the state. Additionally, cracker-bursting had allowed on Christmas and New Year's Eve for 35 minutes each from 11.55 p.m. to 12.30 a.m. and for one hour from 9 p.m. to 10 p.m. on Guru Nanak Dev's Prakash Purab apart from Diwali.
Haryana
The manufacture, sale, and any other type of firework-related production has been banned in the State of Haryana, except for green crackers. The National Green Tribunal (NGT) and the Haryana State Pollution Control Board have issued a notice that only green crackers may be produced, used, and sold in Haryana (HSPCB).
Tamil Nadu
For Diwali, the Tamil Nadu government has approved the use of fireworks. Crackers can be burst between 6-7 a.m. and 7-8 p.m.
Important Case Laws
Arjun Gopal v. Union of India (2018)
In this landmark Judgment, petitions were submitted by six months and fourteen-month-old babies through their fathers who feared that the petitioners would face various health risks as a result of the deterioration of the air quality and pollution. The prohibition of the use of firecrackers and other small explosives was another aspect of prayer. According to the court, firework pollution infringes on public rights to a healthy environment under Articles 48A and 51A. These provisions are protected by Article 21's right to life and cannot be infringed. The court ruled that the precautionary principle of the Indian environmental law did not call for in-depth examinations. The court decided that the Indian environmental law’s precautionary principle did not cause thorough analyses.
It has been proven that the precautionary principle is a component of international customary law. According to the precautionary principle, the State Government and other statutory authorities must foresee, prevent, and combat the causes of environmental degradation, it was decided in the Vellore Citizens Welfare Forum case. The Vellore Citizens' Welfare Forum Case was also cited by the court in support of Article 19(1)(g), according to which environmental preservation is a part of Article 21 and must take precedence over the freedom to conduct business guaranteed by Article 19(1)(g). Additionally, it was decided that Article 25 is subject to Article 21 and that religious practice cannot be protected by Article 25 if it endangers the health or lives of others.
Ms Anasua Bhattacharya v. State of West Bengal & Ors. (2020)
The Calcutta High Court banned the production, distribution, and use of firecrackers during any festival, even the green crackers that the Supreme Court had approved. The Supreme Court noted that only firecrackers containing barium salts were forbidden, not all firecrackers. Given that the firecracker industry was at its height at the time, the judgment caused a stir. They petitioned the Supreme Court for review as a result of it. The court's reasoning for its decision was that both the general public and the firecracker maker are covered by Article 21(6).
Tribunal on its own motion v. Ministry of Environment, Forestry and Climate Change (2020)
In this case, NGT issues some direction for the use of firecrackers in Delhi. Due to the extensive spread of Covid 19 in India, NGT initiated a suo moto proceeding to understand the impact of bursting firecrackers.
- Fireworks will not be allowed to be set off in the NCR between November 9 and November 30, 2020. All cities with average air quality will be subject to this prohibition.
- The state has given the authority to issue directives authorising the exploding of green firecrackers for a maximum of two hours in cities where the average air quality was graded moderate and above. If the state does not give any instructions, the timings will be from 6 to 8 am on Chatt pooja and from 8 to 10 pm on Diwali and Gurpurab.
- In all other locations, the state has the authority to impose restrictions on the usage of green fireworks as per the guidelines established in the Arjun Gopal v. Union of India decision.
Jeyarani v. The Chief Secretary/the Chief Minister Special Cell and Ors. (2021)
The family of a 12-year-old boy who suffered severe injuries as a result of the bursting of firecrackers that were illegally thrown about the area where he was playing was awarded five lahks in compensation by the Madras High Court (Madurai Bench). The bench presided over by Justice N. Anand Venkatesh awarded the boy's mother, a coolie, a 5 lakh compensation payment from the Chief Minister Relief Fund after noting that the boy was about half dead and was in a vegetative state. The Court further criticised the fact that every time a serious fire tragedy occurs in an unlawful firecracker unit, the victims receive compensation, and then everyone moves on.
The bench of the Madras High Court observed:
“On all such occasions, the Government pays some compensation for the deceased as well as the injured. This Court is not clear as to whether such cases involving illegal firecrackers are ultimately taken to its logical end. There is always an excitement when such incidents happen and ultimately, everybody forgets about it till the next incident takes place,”
Goutam Roy v. State of West Bengal (2021)
The sale and usage of firecrackers were totally banned in the State of West Bengal by the Calcutta High Court in October 2021. The COVID-19 pandemic in the state was one of the factors that the High Court considered when issuing this ban. A sudden increase in air pollution would have made the health status of the several patients who were already in hospitals worse. Also taken into account were the state's prohibitions on public gatherings.
The order was challenged before SC, and the court ruled that there cannot be a complete ban on fireworks. Only firecrackers that endanger the environment and public health are prohibited. The pollution control director was instructed by the Supreme Court to keep an eye on the selling of firecrackers and ensure that no chemical firecrackers were being sold as green firecrackers. The order passed by the Calcutta High Court to ban the import of firecrackers was upheld by the Supreme Court.
Conclusion and Suggestions
Providing evidence showing the harmful consequences of cracker burning on people, cracker manufacturing needs to be abolished altogether. The primary health risk posed by the manufacture and use of firecrackers affects millions of lives, notwithstanding the fact that a ban on production threatens the livelihoods of thousands of people. In recent years, the Supreme Court has attempted to strike a compromise between people's rights to life and the freedom to engage in the commerce of selling firecrackers rather than continuing its initial call for a complete ban on fireworks.
Owing to this, it has restricted the hours when firecrackers may be set off and permitted the production and sale of eco-friendly firecrackers. We must all fight to protect the environment along with the government while it makes serious efforts to solve this issue. It is crucial to respect our moral need to preserve mother nature and make it a better place to live, in addition to adhering to the Constitution's fundamental duty to have empathy for our environment.
References
[1] Arjun Gopal v. Union of India, WP No. 728/2015
[2] Ms Anasua Bhattacharya v. State of West Bengal & Ors., WPA 9209 of 2020
[3] Tribunal on its own motion v. Ministry of Environment, Forestry and Climate Change, Original Application No. 16/2013 (CZ) (Suo moto)
[4] Jeyarani v. the Chief Secretary/the Chief Minister Special Cell and Ors., W.P. (MD). No.12456 of 2019, W.M.P(MD). No. 9288 of 2019
[5] Goutam Roy v. State of West Bengal, Special Leave Petition, 26640/2021
[6] United Nations Conference on the Human Environment, Available Here
[7] The Air (Prevention and Control of Pollution) Act 1981, Available Here
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