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Here is why Delhi-NCR’s air pollution has worsen this year

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Practising Advocate, Gujarat High Court. Tweets @KunalVyasAdv Blog

Public opinion is not a matter of consideration in a Court of law, but it inexplicably determines the impact of the Court’s decision. If a verdict of the Court is not well received by the populace, it runs the risk of being disregarded.

The Supreme Court of India, in a Public Interest Litigation, issued directions restricting bursting of firecrackers all across India during Diwali and other festivals. The order was passed with a hope that the bursting of crackers would reduce and the pollution levels would not rise. The results were, however, not yielding as major cities across the nation registered hazardous or poor Air Quality Index post Diwali this year.

A Public Interest Litigation (PIL) was filed in the 2015 seeking total ban on sale and / or bursting of firecrackers in New Delhi and NCR during Diwali. The PIL was filed keeping in mind the increasing pollution during Diwali each year. The Supreme Court (SC) initially passed an Order directing the Government to give wide publicity of the ill effects of air pollution caused by firecrackers. Thereafter, the SC passed Order dated 11.11.2016 directing the Central Government to suspend all licenses granted for sale of firecrackers. This Order was passed immediately after Diwali of 2016. The matter was kept pending and just before Diwali, 2017, the firecrackers manufacturers filed Intervention Applications (IAs) seeking modification of the order on the principal ground that without hearing them, order was passed to suspend their licenses, and thus their fundamental right to business was impinged. After hearing the parties, the SC passed an order dated 12.09.2017 (just before Diwali 2017) holding that suspension of licenses of manufacturers was too radical a step. The Delhi Police was directed to reduce the licenses to 50% of the licenses granted in 2016 and the number of licenses was capped at 500.

The wavering directions of the SC only led to confusion rather than solving the issue of pollution. You may read a detailed article regarding this, here.

This year, a batch of IAs was filed seeking a complete ban on bursting of firecrackers in New Delhi and NCR during Diwali. Directions were also sought to extend such ban to the whole of India. Prayers were made for ban on crop burning, which is admittedly a major cause for pollution in North India. Interestingly, the IAs were heard and Order dated 23.10.2018 was passed directing that firecrackers should be burst on Diwali only between 8 to 10 PM across India. Qua Delhi, the SC only permitted bursting of green crackers during the said window of 2 hours. This Order was modified on 30.10.2018 leaving it to the State Governments to determine timings of the 2 hour window for bursting of crackers on Diwali.

A better air quality was expected this Diwali following the SC Order. What followed was quite the opposite. The bursting of crackers was almost equivalent to the previous years and the pollution levels were proportionately high. What do we discern of this? Supreme Court’s Order was flouted by uncountable number of citizens. It is rare in our nation to find such cases, where directions of the Top Court are ignored by such a large section of people.

Whilst I personally agree with the general approach of the Supreme Court to gradually restrict bursting of firecrackers, I find certain flaws in passing of the Order.

Firstly, the PIL is restricted to Delhi and NCR. The material that is placed before the SC is that of Delhi and NCR. Other States are not even parties to the PIL. Under such circumstances, how can directions be issued upon the remaining States to permit 2 hour window for bursting of crackers? The scope of PILs is generally expanded in larger public interest, but this seems too far-fetched. Without impleading the State Governments, considering the pollution levels in each State, the population demographics, how can directions be issued upon them?

Secondly, the PIL is pending since 2015. Notably, each year, some interim Orders are passed just around Diwali. The issue of pollution concerns every person in the country. When an issue of this kind is being adjudicated, is it not wise to decide the matter without any haste, after hearing all parties, passing a reasoned Order and also preparing the State mechanism to deal with the flouting of such directions.

These issues formed a general public perception that the SC had overstepped and that it showed over-activism, which consequentially led to breach of the Order. Whilst SC is showing commendable judicial activism on the subject, the passing of last minute Orders is making the entire exercise redundant. Passing of the Order under such circumstances led to mass breach by the populace, which made the entire exercise look laughable.

As per the news reports, number of people have been arrested for flouting the SC directions on bursting of crackers. The arrests are made under Section 188 of the Indian Penal Code for disobedience of Order promulgated by public servant. If the matter was timely decided, the Governments could have been directed to make appropriate arrangements including enacting a law banning / restrictingmanufacture / sale / bursting of firecrackers and also providing for punishment of breach thereof. It is because of the last minute hasty decisions that no system is put in place to oversee the implementation of the Order.

It is hoped that now, considering the after effects of Diwali, 2018, the SC would timely decide the PIL finally at the earliest. Although the SC is yet to decide whether bursting of crackers is a part of the tradition for Diwali celebration, it can be safely said that the tradition can logically neither trace back to time immemorial nor can it be said to be compliant with the present day environment in the country. The SC may also be required to consider the aspect of lives of over 5 lakh families engaged in the business of manufacture / sale of firecrackers. Taking it all into consideration, the SC needs to decide the issue at the earliest.

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Practising Advocate, Gujarat High Court. Tweets @KunalVyasAdv Blog
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