No Firecrackers on Diwali: Legal Perspective

If we speak about Diwali, the sentence and the curiosity shall not be complete unless we talk about Firecrackers. So, Diwali indefinitely would include the bursting of crackers, which is the subject matter of it. However, does the bursting of crackers come under the essential part and parcel of this Diwali festival in India or not is the crucial thing that we as a legal fraternity should look at if we are asked to give a legal perspective of this religious festival. Do we have a permanent ban or, in other words, a ban on crackers for this year or not? Why do people and many activists file a petition seeking the court to impose a ban on the bursting of crackers in India? In spite of the fact that the Supreme Court of India never banned the bursting of crackers altogether, we should know why is it essential to reduce or impose a partial ban on these firecrackers during Diwali.

This article will first look into the existing facts on air pollution in India, followed by legal provisions that get affected due to air pollution and the recent position of the Judiciary on whether to ban these crackers or not.

India and Air pollution stats:

Before looking into the legal perspective of firecrackers, it becomes essential to understand some of the reports that were presented at the global level to make countries aware of what is the situation on Air quality and pollution. Legal perspective alone never suffices to prevent pollution. These reports would help those countries at the sensitive state to come up with some policy-related measures to reduce the same. The most recent report on air pollution levels was produced by IQ Air’s World Air quality report, which came out in the year 2020. If we look at India’s stand at global level, it stands at third position in Central Asia whereas; the two very close neighbors Bangladesh and Pakistan, stand at first and second position. Coming to regional cities in India, Delhi stands at first with an 84% average, followed by Mumbai, Bengaluru, Hyderabad, and Chennai. Unfortunately, most of the metropolitan and big cities have been given higher levels of air pollution. Apart from stats, the report states that India showed a good recovery when compared to 2019 reports and even with the previous ones.

The report moves on to speak about the challenges that India faces as it continues to top the list of most polluted cities across the world for air pollution. It has also been noted that that the main reasons for this start with intense usages of motor vehicles and their emissions, followed by biomass burning for the purpose of cooking, electricity generation, and waste burning. So, from the above report, we can come to the current fact that India is neither at its best level nor at its worse level, but needs further focus to remain a good country for its citizens to live in.

Legal perspective: Conflict among Fundamental rights and DPSPs:

The Indian constitution, the supreme law of our land, provides Fundamental rights to its citizens under part 3 of the constitution. They can never be prevented from being enforced by the citizens of the country if there is a direct or indirect violation of fundamental rights by states, other individuals, etc. No law should prohibit the same. Given these rights, it cannot be granted to affect other people while one enjoys his own. This means, no right is absolute.

Whenever there is a question on environmental rights, Article 21 should be invoked to prevent any legal harm that has taken place or will take place in the future. This right envisages the right to clean environment without any pollution etc., firecrackers burning, and the consequences shall be presumed and taken into account as it involves air pollution. Unlike this as a right, few of the articles under Directive principles of state policy vests a duty on the state to promote a clean and safe environment for its citizens. Under the same, Article 48A of the Indian Constitution puts an obligation on the state to improve the environment for the betterment of society. In Kamal Nath’s case, the court came up with the public trust doctrine and stated that the state is the trustee of all the natural resources, and those should be prevented for the societal good. These two points with other legal principles shall be invoked when it comes to defending the right to life.
On the other hand, the production, selling, and manufacturing of the firecrackers come as part of the right to freedom of trade and commerce under article 19(1) (g). Putting a ban on these firecrackers would definitely affect the business of those who were involved in this business and trade, which is a violation of fundamental rights. If it is a religious festival, the question is, does the ban restricts the right to freedom of religion under article 25? In order to answer all these, the activists and other citizens go to the court of law seeking remedy with respect to their issues.

Judiciary’s stand on Ban on Firecrackers:

The petition which sought to ban the firecrackers was made in the case of Arjun Gopal v. Union of India, 2018, where the petitioners (two children), with the help of their families, had filed the petition to ban the same in the Delhi region. This raised the above-mentioned conflicts and the court, in the name of AK Sikri, came to a conclusion that if the court is sought by the petitioners for the protection of the right to life, then the economic rights attached with the same shall be given way to this much important right as per environmental principles.

Now, in 2021 Supreme Court has not given a complete ban on the bursting of crackers which is also to be noted. It is of the opinion that there should not be a blanket ban on firecrackers, and the decision of the Calcutta high court on this blanket ban was also set aside by the Supreme Court of India as per the reports on 1st November 2021. It is important to note that the restriction was made only to crackers which are more harmful to other citizens while being burst.

National Green Tribunal also gave its important guidelines for the cities with a higher number of pollution levels in the year 2020. This has been followed till now and has also been cited by various courts in India. So, it is important that we move from more chemicalized crackers to more environmentally friendly crackers such as green crackers while celebrating. Justice Sikri, in 2018, has also noted that Diwali is a festival of lights, and there is no necessity for firecrackers to bring people together, which should also be taken into consideration.