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Firecraker Regulation : 'Our Orders Should Be Implemented In True Spirit', Says Supreme Court

Shruti Kakkar
28 Sep 2021 1:28 PM GMT
Firecraker Regulation : Our Orders Should Be Implemented In True Spirit, Says Supreme Court
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The Supreme Court today while hearing an application alleging violation of the order dated February 10, 2017 banning the use of certain chemicals that were dangerous & beyond safety limits in the fireworks by the manufacturers observed that it could not permit others to infringe the right to life of other citizens and that there was a need to strike balance between...

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The Supreme Court today while hearing an application alleging violation of the order dated February 10, 2017 banning the use of certain chemicals that were dangerous & beyond safety limits in the fireworks by the manufacturers observed that it could not permit others to infringe the right to life of other citizens and that there was a need to strike balance between employment, unemployment and right to life.

Adding that in our country the main difficulty was implementation of laws, bench of Justices M R Shah and A S Bopanna said its prime focus was the right to life of innocent citizens.

"Our prime focus is the right to life of innocent citizens. If we find green crackers are there and accepted by the committee of experts we will pass suitable orders. Laws are there but ultimately implementation has to be there. Our order should be implemented in true spirit," the bench said.

The Top Court also said that to ensure that the chemicals that were banned were not used, there was a need to fix responsibility on someone who was ultimately liable.

"Amount of 1000,10000 series of crackers are burned. For every occasion, and in every religion crackers are used. Even politicians after victory in elections use crackers. Sometimes we'll have to fix the liability of responsibility ultimately as to who will be liable. If liability is fixed on the Commissioner of police then only this can happen."

The Supreme Court bench of Chief Justice SA Bobde, Justice AS Bopanna & Justice V Ramasubramanian on April 8, 2021 had issued notice in the application which had also submitted that the respondents manufacturers were using the same chemicals which were banned by the Court & that many respondent manufacturers were not labeling the products as directed by the Court in the previous order.

Appearing for the petitioner (Arjun Gopal), Senior Advocate Gopal Sankaranarayan while drawing Court's attention to the order dated March 3, 2020 submitted that the sale of fireworks which existed prior to 2015 was continuing in every city even today.

Highlighting the reasons that resulted in filing of the present application Senior Counsel submitted that,

"300 different types of fireworks violating all rules regarding air pollution, noise pollution, transport licenses which are required had compelled us to file the 2nd application because in Calcutta the HC took note of the fact that many newspapers in 2020 had reported that journalists had gone and they were very easily been able to get the crackers which claimed to be green but which carried all the bad chemicals. In Bombay, Davars Foundation carried out a research survey along with Maharashtra Pollution Control Board and even in Maharashtra, these sales are going with impunity. Manufactures have been violating Court's orders. It was in the press recently and they said that you could go do what, let the Court's orders come, we'll go ahead. Which is why we filed this application."

Contending that firecrackers are not like narcotics drugs which somebody could smoke in a bathroom, Senior Counsel argued that the executive was not taking any steps to ensure observance of Court's order.

Senior Advocate Gopal Sankaranarayan also referred to Court's order dated October 23, 2018 wherein the bench had directed Petroleum and Explosive Safety Organisation ("PESO") to only issue certificate with regards to the composition of the fireworks only after being assured that the same were not made of chemicals banned by the Court.

To further substantiate his contention, Senior Advocate also submitted that NEERI had issued notifications after entering into MoU with the manufacturers and given certificates with regards to the crackers having barium presence.

"This is completely in violation of Court's order which is why PESO has refused to give certifications completely in terms of Court's order. As a result of which today there are only 5 types of fireworks which have been granted green certification by PESO and only those are permitted to be manufactured. Now of the 2000 or so manufacturers, they are 120 alone who have the capacity and inclination to work with this court to ensure that there would be greener crackers," Senior Counsel added.

It was also his contention that the entire idea of green crackers and barium ban had come from the affidavit filed by the Union of India pursuant to which the Top Court had passed directions in the order dated October 23, 2018. However till now the directions were being violated.

Pointing out to the Top Court's order dated April 11, 2019 in which barium ban was reiterated, Senior Counsel further argued that the Government of India had been ignoring PESO completely.

"The 26 October 2020 affidavit indirectly attempts to ensure that barium ban is lifted thereby playing ball completely with the manufacturers which has been banned by the Court to attempt the balance. Here we have 2-3 contempts taking place, we have PESO which says that its not going to grant approval until Court's orders," Senior Counsel argued.

On Senior Counsel's submissions, Justice Shah the Presiding Judge of the bench orally remarked,

"Amount of 1000,10000 series of crackers are burned. For every occasion, and in every religion crackers are used. Even politicians after victory in elections use crackers. Sometimes we'll have to fix the liability of responsibility ultimately as to who will be liable. If liability is fixed on the Commissioner of police then only this can happen."

Senior Advocate in this context also referred to Calcutta High Court's judgement wherein the High Court while placing responsibility on the local magistrate and the local police had observed that it was the Magistrate and Police's responsibility to protect Article 21 since they could not turn blind eye and allow people to do whatever they wanted to do.

Representing the Manufacturers Association of Firecrackers, Senior Advocate Atmaram Nadkarni submitted that it wanted PESO to take a decision since diwali was approaching. He added that the matter should be decided by the government taking into consideration the unemployment of lakhs of people.

It was also his contention that the contempt must be heard and taken to a logical end but the plight of lakhs of people who were working in the industry should also be looked into.

Additional Solicitor General Aishwarya Bhati, appearing for the Ministry of Environment and Forests, submitted that the ministry had filed an affidavit in October 2020 and if the Top Court would take note of that, all the interim applications would be covered. She also submitted that all the experts had come together to suggest formulations on the issue of green crackers.

The hearing will continue tomorrow.

Background

On March 3, 2020, the Top Court had issued notice to the respondents-manufacturers M/s Standard Fireworks, M/s Hindustan Fireworks, M/s Vinayaga Fireworks Industries, M/s Shree Mariamman Fireworks, M/s Shree Suryakala Fireworks and M/s Selva Vinayagar Fireworks, except respondent no.5, to show cause why they should not be punished for contempt of this Court for the alleged violation of this Court's earlier orders.

"If the aforesaid allegations are true then there is no doubt that the respondents-manufacturers would be guilty of contempt of this Court.", the Bench remarked.

Directions were also issued to the Joint Director, Central Bureau of Investigation (CBI) at Chennai, to make a detailed investigation regarding the alleged violation of this Court's earlier orders by the aforesaid respondents-manufacturers by using the ingredients which have been banned and by mislabeling their products contrary to the directions of this Court as stated in the instant application & submit a report to the Court within a period of six weeks from the date of receipt of copy of the order.

The Bench of Justice Madan B Lokur & Justice Prafulla C Pant on February 10, 2017directed the respondents including the manufacturers, distributors, wholesalers and retailers to mention the name and address of the manufacturer and the name and address of the person who is responsible on any fire cracker sold in box/carton to hold the person accountable in case of violation of any of the provisions of the law.

On October 23, 2018,  the Top Court had ruled against imposing complete ban on firecrackers but has said that only less polluting green crackers can be sold, that too only through licensed traders. The Court had banned online sale of firecrackers, restraining e-commerce websites from carrying out its sale, fixed the duration for bursting of crackers and had ordered that crackers could be burst only in designated areas.

Case Title: Arjun Gopal & Ors v. Union of India & Ors| Writ Petition(s)(Civil) No(s). 728/2015


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