The Supreme Court on 7 November, held that the use of Barium and certain chemicals such as Mercury and Lithium in firecrackers is banned. It also held that this ban applies nationwide and is not limited to Delhi-NCR (National Capital Region).
Notably, the apex court emphasised that no new instructions were necessary and that the previous Supreme Court orders which regulate the manufacture and sale of firecrackers, arising out of the Court's judgment in Arjun Gopal vs Union of India, must continue to be followed.
The Court's clarification came during the hearing of a plea requesting compliance with the ban on Barium crackers so as to minimise pollution in the state of Rajasthan.
But what were the restrictions on the manufacture and sale of firecrackers that were laid down in previous Supreme Court orders?
Pre-Existing Restrictions on Manufacture and Sale of Firecrackers
In Arjun Gopal vs Union of India, the fathers of newborn infants filed a writ petition expressing concern over the health risks posed to their children due to the high levels of air pollution during Diwali.
Recognising that the increased pollution levels can be particularly harmful to children, who are the most vulnerable, the petitioners approached the Supreme Court seeking a clean and healthy environment for their offspring.
The Court concluded that the pollution caused by firecrackers infringes upon the rights provided by Article 48A and Article 51A of the Indian Constitution, which guarantee citizens the right to a healthy environment. Recognising that these Articles fall within the scope of Article 21, which guarantees the right to life, the court emphasised that they cannot be violated.
The Court also relied on the case of Vellore Citizens’ Welfare Forum vs Union of India to establish that the state government and other authorities have a responsibility to anticipate, prevent, and address causes of environmental degradation under the “Precautionary Principle” of environmental law.
This is particularly important when there is a risk of irreversible damage, and a lack of scientific certainty should not be an excuse for delaying measures to prevent environmental degradation.
Thus, the Court concluded that environmental protection is a fundamental aspect of Article 21 (the right to life) and that Article 21 takes precedence over Article 19 (1)(g), that is, the right to freedom of trade.
Where Did the Latest Supreme Court Order Fall Short?
The Supreme Court’s existing orders are already extremely restrictive with regard to the regulation of firecracker production and sales. Hence, the 7 November order can be criticised on the basis that it fails to address the root cause of the lack of implementation of the Court’s directives.
An order delivered by the Court in October 2018, stated that the police will be personally responsible for a failure to implement the Court's directives.
Yet, no contempt case has been filed against any SHO or police commissioner for failing to deal with the manufacturing of unlawful firecrackers.
At the very least, the 7 November order should have been specific on set of tasks that the police would be required to take to ensure that the manufacturing of unlawful firecrackers is reduced to a minimum. Suggesting a set of tasks to the police would at least ensure accountability.
The latest order arguably also ought to have involved a complete ban on firecracker manufacturing. In the case of Vellore Citizen’s Welfare Forum vs Union of India, the Supreme Court had banned tanneries when it was found that they were causing immense damage to the environment.
In that judgment, environment protection, which is a facet of Article 21, was given supremacy over the right to carry on business enshrined in Article 19(1)(g).
It must be remembered that Article 21 is violated not only through air pollution but also through the dangerous working conditions during the production of firecrackers that children involved in labour find themselves in.
Directions Issued by the SC in the 2018 Order
In its 2018 order, the Court did acknowledge certain preventive measures such as community showcase of fireworks or granting licenses to firecracker manufacturers only during a two-day window prior to Dusshera.
However, the latest order failed to provide any binding parameters for the implementation of these measures, thereby reducing the efficacy of such suggestions.
In 2018, the Supreme Court issued specific directions mandating a ban on the production and sale of crackers other than either green crackers or crackers having reduced environmental emissions which have been recommended by the Petroleum and Energy Safety Organisation (PESO) and the Central Pollution Control Board (CPCB).
PESO is required to ensure that firecracker manufacturers who use banned chemicals such as Lithium, Arsenic, and Mercury and whose firecrackers are not within the permitted decibel limits, are suspended from producing such firecracker stock.
The CPCB was also mandated to spend seven days prior to Diwali and seven days post Diwali in monitoring the levels of Aluminium, Barium, and Iron in the air of Delhi in order to get a better idea of whether air pollution is being reduced due to the restrictions on using poisonous chemicals in firecracker manufacturing.
Moreover, after the October 2018 order, e-commerce websites including Flipkart and Amazon would not be permitted to accept online orders for firecrackers.
In 2021, the Supreme Court analysed the benefits of the 2018 Order.
Importantly, the Court observed that there were significant lapses by the police commissioners, SHOs, and other law enforcement agencies in failing to prevent the use of Barium and other banned chemicals in firecrackers.
Therefore, the Court reiterated that any police commissioner, SHO, or superintendent who flouts Court orders restricting the manufacturing of firecrackers shall be held in contempt of court.
(Virangana Wadhawan and Vinayak Sankaranarayanan are Corporate Lawyers at ELP [Economic Laws Practice]. Virangana is a Principal Associate and Vinayak is an Associate. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)