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Supreme Court ban on sale of crackers: How far legally justifiable?

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Practising Advocate, Gujarat High Court. Tweets @KunalVyasAdv Blog legistvyas.blogspot.in

Supreme Court has banned sale of fire crackers in Delhi and NCR during this Diwali. It is outrageous that many have criticized the verdict as being aimed at belittling the Hindu customs and traditions. There is not an iota of doubt that the Supreme Court is fair and accords equal treatment to all irrespective of their religion.

The Supreme Court has, for the larger good, restricted/ regulated/ prohibited various religious practices of Hindus; be it Dahi-Handi, Jallikattu and now Diwali. This is chiefly because Hindus have always been open to intervention in their beliefs and faiths, judicial as well as legislative right from ban on Sati system till date. The Hindu majority has accepted verdicts concerning its religious customs and practices; albeit with reluctance and reservations; but without any threat of revolt. Moreover, the self-acceptance by Hindus of the flaws in their customs and practices has also encouraged the Courts to pass such verdicts. As against this, religious beliefs and customs of other faiths have not undergone as much scrutiny. Moreover, the minimal intervention has also been firmly resisted by certain communities.

Recently the despicable practice of Triple Talaq practiced by Muslims was challenged before the Supreme Court. It was set aside by 3:2 majority but interestingly the minority opinion of CJI JS Khehar (as he then was) and Justice Abdul Nazeer upheld the practice as being in conformity with the Muslim Personal Law holding that “Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion.”Thus, the minority opinion accorded a higher status to beliefs and traditions of a personal law than that of Constitutional rights. In fact, the majority verdict striking down Triple Talaq as being unconstitutional has also not been welcomed by the clerics.The political parties have also played their part by appeasement of these communities. When the Supreme Court in the Shahbano case, directed payment of maintenance by Muslim husbands, the Congress Government nullified the judgment by enacting Muslim Women (Protection of Rights on Divorce) Act, 1986.

Now considering the Judgment banning sale of fire crackers in purely legal context. A Writ Petition was filed in the Supreme Court praying for a complete ban on bursting of fire crackers in Delhi and NCR since it causes air pollution. The Supreme Court passed an Interim Order on 11.11.2016 directing the Central Government to suspend licenses given to all licensees for sale of fire crackers. What is unbelievable is that the said Order was passed without hearing the licensees. Why were the principles of natural justice done away with? As a matter of fact, it was recorded in the Order that the Central Government has power to suspend license under Rule 118 of the Explosive Rules, 2008 and that sub-rule 5 thereof enables the Central Government to dispense with hearing to be accorded to the licensee before suspending license if it so feels to be in the public interest. Here, the Supreme Court assumed the statutory discretionary power conferred on the Central Government and a mandatory direction was issued to the Central Government to exercise the discretion in a particular manner by way of an interim order without hearing the affected persons.

Resultantly, various fire crackers’ manufacturers filed an Interim Application (IA) seeking modification of the said Order. The said Application was allowed by the Supreme Court by Judgment dated 12.09.2017 holding that continuing the suspension of licences might be too radical a step to take for the present and that it is necessary to ensure that injustice is not caused to those who have already been granted a valid permanent licence. It was further pertinently held that from the material available, it could not be said with any great degree of certainty that the extremely poor quality of air in Delhi in November and December 2016 was the result only of bursting fireworks around Diwali and that certainly, there were other causes as well.

Under the said circumstances, the Supreme Court lifted suspension of permanent licences as directed by the order dated 11th November, 2016, subject to review after Diwali, 2017 depending on the ambient air quality post Diwali and further directed a research study to be conducted by the Committee on the impact of bursting fireworks during Dussehra and Diwali on the health of the people and to submit its report by 31.12.2017. It further directed the Delhi Police to reduce the grant of temporary licences by about 50% of the number of licences granted in 2016 and to cap number of temporary licences 500. The States in the NCR were restrained from granting more than 50% of the number of temporary licences granted in 2016.

Thereafter, the Petitioners filed IA seeking suspension of licences; which has been allowed by Supreme Court by Order dated 09.10.2017 holding that the order suspending the licences should be given one chance to test itself in order to find out as to whether there would be positive effect of the suspension, particularly during Diwali period.

The Judgment dated 12.09.2017 was passed since there was no material to show that the air pollution was majorly due to fire crackers justifying a ban on sale of fire crackers. Further, institutes were asked to conduct an in depth study to find out the effects of fire crackers. The traders holding licenses were permitted to sell crackers during Dusshera and Diwali, 2017. The said permission could not have been revoked without any fresh material that would justify such revocation. What made the Supreme Court change its stand completely within less than 30 days? A suspension is imposed, revoked and re-imposed; all without any material on record. It is appalling that the Supreme Court has adopted the try and test method at the cost of thousands of sellers holding valid licenses. It is not quite discernible as to how the said Orders are passed.

Despite above raised issues, I welcome a ban on sale of fire crackers. But it has to be based on scientific research and data and not on a try and test method. Moreover, it has to be gradual. Further, commercial interest of lakhs of traders is necessarily required to be considered. Taking the commercial interest of the traders into consideration, tobacco has not been banned although it clearly has been a cause for numerous deaths. Thus, the commercial angle cannot be completely ignored as has been done in the present case.

Rather than a ban, a self-imposed restriction by individuals would be placed at a much higher pedestal. It would be incumbent upon the Hindus to restrain from bursting of fire crackers during Diwali as it undeniably causes serious pollution. Irrespective of whether bursting of crackers is the only factor for high pollution, a self-imposed restriction on bursting of fire crackers would be appreciable. Equally appreciable would be such self-imposed restriction by other communities on their customs, beliefs and practices; be it the brutal mass killings of goats during Bakri Eid or playing Azaan on loudspeakers.

If the individuals don’t impose self-regulations, the custodian of the Constitution, the Supreme Court would be required to intervene. The only positive that comes out from the case on hand is the interest shown by Supreme Court in the issue of fire crackers causing pollution. We can hope that the Supreme Court would show equal amount of interest in matters concerning beliefs and practices of other faiths, as and when brought to the forefront.

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Practising Advocate, Gujarat High Court. Tweets @KunalVyasAdv Blog legistvyas.blogspot.in
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