Shrirang Ashtaputre
Intern, Legal Angles Patna
INTRODUCTION:
Diwali, a Hindu festival of lights, gatherings involving gobbling several delicacies, exchanging clothes and gifts is, in fact, a conglomeration of several minor auspicious days, celebrated for 3-5 days every year. As per Hindu Mythology, Hindus lit diyas to welcome Lord Ram, along with his brother Lakshman and beloved wife Sita returned to Ayodhya after their exile of 14 years from their kingdom. According to few other sources, Narak Chaturdashi, which marked the death of Narkasura at the hands of Lord Krishna and Satyabhama, such that when the former realized that she was a form of his Mother, demanded celebrating his death with lights, firecrackers and festivities – in a nutshell, Hindu celebrate Diwali to mark the victory of the good over the evil. Largely perceived as an occasion of celebrating Life and establishing better bonds with near kins, Hindus, over the centuries, have gone a step ahead by lighting fire-crackers for celebrating the good deeds of their ancestors – this significant part of this festival of joy is lately in news, again, owing to the pollution this activity tends to cause, capable of aggravating the persisting health problems and further degrading the air quality in the country. In the light of such controversy, a dire need to assess the essentiality of bursting fire-crackers for celebrating Diwali becomes important, implying a die need to decipher the origins and incorporation of fire-crackers as a mode of expressing celebrations in Diwali.
India, a nation largely based in the temperate zone is favourable for sustaining all forms of lives, be it the diverse forms of crops, us humans or several varieties of insects, upon whom, the Hindus have frowned for ages for they are considered as assign of filthiness. Interestingly, they breed extensively during the transition from Monsoon to Winter, i.e., between October and November and for checking their growth, native Indians relied on saltpetre, by bursting them in a manner to release Potassium Nitrate, capable of killing insects[1]. This remedy was incorporated into celebrations after being inspired by the European idea of commemorating important dates and festivals predominantly introduced by the English[2] - the Vijaynagar Kingdom, later Bijapur and even the Marathas enjoyed bursting fire-crackers on various occasions, though this trend was beautified with the dawn of European Colonizers[3]. This indicates that fire-crackers are not an integral part of this ancient festival[4].and avoiding bursting anars, fuljhadis, rockets etc. won’t per se destroy the real meaning of Diwali. That is to say, that the idea of bursting modern-day fire-crackers is relatively a new one, commercialized and marketed extensively post-independence, but, coupled with traditional Indian knowledge, was utilized for halting the spread of dengue in Delhi in the 21st century![5] What is undisputed is that excessive bursting of fire-crackers in the presence of cold air and failure of good winds prevents the smoke from escaping, affecting one and all - respiratory problems, allergies, asthma, coughing, bronchitis, retarded nervous system breakdown and even cognitive impairment etc. stem from the air pollution due to this activity. By producing sounds of more than 140 Decibels, they are capable of damaging hearing, suggesting noise pollution. Naturally, State action with this regard becomes imperative and where the Governments, be it the Centre or the States, refuse to intervene protests and loss of vote bank, it is the Judiciary which is expected to protect the Constitutional interests of the masses and balance them with that of the actors in pursuance of justice, which, it did significantly in this regard this year.
JUDICIAL TAKE ON THE FIRE-CRACKER CONTROVERY-HEALTH, ENVIRONMENT V. BUSINESS
Due to the outbreak of COVID-19, a virus which largely affects the lungs and the respiratory system, an obligation emerges upon the State and the public to refrain from engaging into any activity which may cause pollution and trigger the spread of the virus or affect the health of its victims. It is unfortunate as to how people overlook the misery of others for securing self-interests, even when the possibility of a second-wave is at an all-time high and a successful vaccine is nowhere to be seen!. It is in such times, that the verdict of High Court of Calcutta came as a boon for many, whereby, it categorically banned the sale and of fire-crackers in Bengal, for safeguarding the air quality and preventing the spread of infection due to their noxious fumes. The Court cited public interest, specifically public health as a ground for curtailing the freedom of trade and profession of those involved in developing and selling these crackers[6]. Refusing to shelter their right to livelihood and the aforesaid freedom, the National Green Tribunal undertook a similar stand and while allowing the masses to burst green fire-crackers, imposed several restrictions and guidelines for a limited period, be it on Diwali or Christmas. In doing so, it remarked that:
“Celebration by crackers is for happiness. It is not to celebrate deaths and diseases. Happiness of few at the cost of life of others is not the value in Indian society which stands for happiness and well-being of all.”[7]
When the Telangana High Court sought to impose a similar ban as that of the Calcutta High Court within its territorial jurisdiction, the Supreme Court modified the same, demanding compliance with the aforesaid Order of the NGT[8]. As of today, 13 states have imposed some or the other form of restriction of sale or bursting of manufacture of fire-crackers in India.
Notably, this debate was heavily discussed for the first time in Arjun Gopal v. Union of India, whereby, the state had imposed an absolute ban on the sale of certain categories of firecrackers, by pointing out its health hazards and averring that in case of a dispute between the right to life and that of economic losses, the former will gain precedence[9]. Previously, the Court in the said verdict also opined that any religious practice which conflicts with the general health and well-being of the public shall not gain immunity under Article 25 of the Constitution of India, 1950[10], thereby adding a new chapter to the prevailing dispute of personal laws as “law in force” within the meaning of Article 13(1) of the Constitution. However, by 2018, the Order was modified by allowing bursting firecrackers in a fixed time in the Delhi NCR Region[11]. In these 2 cases, attention was drawn for the need for protecting the environment not just for the sake of public health, but, for preserving the environment itself, thereby turning a new page into the ever-expanding environmental jurisprudence in the country. By the time these verdicts were concluded, the Law of the land was quite clear with this regard – any activity which tends to cause pollution at large is bound to be curbed. Prevention of State action for reducing pollution, for instance, was regarded as a violation of the right to life in India[12], specifically that of right to live in a clean environment[13]. In simple words, the protection and preservation of nature’s gifts are must for enjoying the right to life[14]. In M.C. Mehta v. Union of India[15], the Apex Court of India rightly asserted that:
“We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.”
Notably, a hygienic premise is an inseparable facet of human dignity[16] and exposing a third person to a certain form of pollution against his or her will, i.e., busting fire-crackers that are known to cause air and noise pollution is in deprivation of the right to life[17]. The right to be left alone, a facet of Article 21 of the Constitution is inclusive of staying away from pollution, which must be respected by individuals and the State at all costs[18]. Along the same lines, a Constitutional Obligation exists on the State[19] including the Judiciary[20] to protect the natural environment while a fundamental duty is bestowed upon the citizens for ensuring the same[21] – with the evolving scope of enforcing the Directive Principles of State Policies and Fundamental Duties, more vigilance with this regard is a Constitutional mandate.
CONCLUSION:
In recent years, the Courts have been adamant on sticking down those religious practices which conflict with the well-being of the individuals in the country. In doing so, they have often strived to assess whether a particular practice is an essential religious practice or not – the fact that burst fire-crackers is not associated with Diwali gives sufficient power to the State to regulate this practice as it pleases. Naturally, it comes as no surprise that the Supreme Court, in Re Noise Pollution[22]prescribed several guidelines for marking, duration of bursting and confirming the noise levels of these fire-crackers with the expected noise standards in India besides pointing out the ill-effects of uncontrolled air and noise pollution upon the masses. Finding an innovative way for protecting the sentiments of Hindus, Governments have allowed for bursting green fire-crackers, i.e., those which emit 30% less pollution and sound range of just 125 Decibels[23] - Karnataka and Andhra Pradesh have permitted their use. Nevertheless, all, the State including the Judiciary is completely justified in imposing a ban on the manufacture and the sale of such crackers in the public interest.
[1] The Science behind tradition of Deepavali fireworks or Diwali crackers Guruprasad’s Portal. As retrieved from: (http://guruprasad.net/posts/science-behind-tradition-deepavali-fireworks-diwali-crackers/). [2] Mohana Basu If not pollution, Hindu groups still have 2 good reasons to support firecracker ban on Diwali The Print Nov 14, 2020 10:32 AM IST. As retrieved from: (https://theprint.in/opinion/pov/if-not-pollution-hindu-groups-still-have-2-good-reasons-to-support-firecracker-ban-on-diwali/543493/) [3] Nandini Rathi A brief and crackling history of fireworks in India The Indian Express October 26, 2017 12:12:37 PM. As retrieved from: (https://indianexpress.com/article/research/a-crackling-history-of-fireworks-in-india-4890178/). [4] Supra 4. [5] Lalit K Jha Say yes to fire-crackers to control dengue The Hindu October 16 2013. [6] Ms. Anasua Bhattacharya v.. State of West Bengal & Ors. [WPA 9184 of 2020] [7] Tribunal on its own Motion v. Ministry of Environment, Forest & Climate Change [OA No. 249 of 2020; decided on 09-11-2020]. [8]Debayan Roy Cracker Ban: Supreme Court directs modification of Telangana High Court order, asks State to comply with NGT directions Bar and Bench Nov 13, 2020, 4:00 PM IST. As retrieved from: (https://www.barandbench.com/news/litigation/cracker-ban-supreme-court-directs-modification-telangana-high-court-order). [9] [(2019) 13 SCC 523]. [10] Arjun Gopal v. Union of India [(2017) 1 SCC 412] [11] Supra 9. [12] Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and others [AIR (2001) Delhi 455] [13] Vellore Citizens Welfare Forum v. Union Of India & Ors [1996 5 SCR 241] [14] T. Damodhar Rao And Ors. v. The Special Officer, Municipal Corporation [AIR 1987 AP 171] [15] [1987] 4 SCC 463]. [16] Virulent Gar v. State of Haryana [1995(2) SCC 577] [17] Murli S. Deora v. Union of India [(2001) 8 SCC 765] [18] P.A. Jacob v. The Superintendent Of Police [AIR 1993 Ker 1] [19] Sachidananda Pandey v. State Of West Bengal & Ors [1987 AIR 1109] [20] Supra 14. [21] Supra 19. [22] [AIR 2005 SC 3136]. [23] What are green firecrackers? All you need to know Hindustan Times Nov 13, 2020, 15:04 IST . As retrieved from: (https://www.hindustantimes.com/india-news/what-are-green-firecrackers-all-you-need-to-know/story-dk4fuHpeZPp8nAOZWR6VOI.html).