Supreme Court firecracker ban: The court stepped in when the legislature did not

The Supreme Court has brought back its November 2016 order suspending all licences permitting the sale of fireworks, wholesale and retail, within the Delhi-National Capital Region. A bench headed by Justices AK Sikri on Monday said the apex court’s order of September 12, temporarily lifting the stay and permitting sale of firecrackers, would now be effective from November 1. While bringing back its 2016 order, the SC commented that it would be prudent to “try out at least one Diwali without firecrackers” in light of the severe pollution and smog-like conditions prevalent in the National Capital Region during this period.

Soon after the Bench passed its order, a familiar chorus began on social media, questioning whether the ban was yet another case of “judicial overreach”. While the court has been accused of overreach quite a number of times recently, notably for its judgements in the national anthem case, the BCCI management issues, and the ban on the sale of liquor within 500 metres of national / state highways; it should be examined whether the present order is also a case where the court might have overstepped its constitutional boundaries in passing what may initially seem to be an executive instruction.

The question that arises is why the judiciary needs to intervene in administration when that is fundamentally the role of the representatives of the people. Often, this is because of a weak or tentative executive and legislature that fail to perform the constitutional duties. Article 21 of the Constitution gives every citizen the right to life including dignity and comfort in livelihood, and also a right to a clean habitable environment to live in. It is the job of the legislature and executive to ensure these fundamental rights for the people. And so often, these arms fail or are tentative in their duties to implement such fundamental rights for a number of varied reasons depending on the mindset and action plans in force. The judiciary, as a guardian, must then step in and ensure that these breaches are rectified or bottle necks cleared to prevent a crisis in the ecosystem.

One of the parties supporting the plea on the ban on firecrackers before the Court, along with petitioner Arjun Gopal, was the Central Pollution Control Board (CPCB). The September 12 order was passed after hearing all parties, and the court had remarked that a graded approach was needed to be taken to curb pollution caused by fireworks. Since the CPCB was already opposed to the lifting of the ban, and given that farmers in northern India have already started burning stubble due to lack of alternative ways for its disposal, which is likely to lead to massive smog conditions in the capital; it may be assumed that the court in its own prudence stepped up to try and control the severe rise in pollution and environmental degradation in the National Capital Region.

A fair inference can be drawn that the executive (through the CPCB) was in favour but lacked the resources to enforce a protective measure at a short notice. It is at this point that the SC merely gave a helping hand to protect citizens and ensured their right to experience a better environment; albeit for a short duration of about a month.

Can this action be called judicial overreach?

Not really. While passing the order, the Supreme Court does permit the sale of firecrackers to resume from November 1. By not enforcing a complete ban, the court has tried to steer clear of interfering with any major executive decision or administrative policy. The court seems to recognise the severe incoming polluting conditions and merely attempts, in its own way, to help curb the spectre of severe environmental conditions. In doing so, it has tried to help the executive, who seemed in favour of a countermeasure (through the pollution control board), but lacked a certain bandwidth for implementation and enforcement.

Since the conditions will change for the worse in a few days, due to the imminent advent of crop smoke across the region, it was the call of the judiciary to step up to protect and dignify the right to life for the people across the national capital region and give them a small window to experience a slightly cleaner environment for some time.

This order is a small prop to support the preservation of the right to life and dignified living and should not be clouded under the prism of judicial overreach, which the court has made an honest attempt to steer clear of. At the end of the day, a chance to breathe less hazardous air should be cheered for since the pros outweigh the cons in this case, even if a shadow of judicial overreach hangs in the horizon.

Neeladri Chakrabarti is a lawyer practising in New Delhi

The views expressed are personal