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Diwali Dhamaka: From Firecracker To Stubble Burning, Court Can’t Be The Battleground To Fight Pollution

Supreme Court’s latest rejection of hearing an urgent plea that challenged the Delhi Government’s complete ban on firecrackers contradicts its last year’s judgement.

Shopkeepers and buyers alike are distressed about the lack of variety and high price of the green crackers as well as their low availability.
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Rangolis are ready- lamps are about to be lit – the boxes of sweets have reached the neighbours and relatives- at this juncture, can we do away with the sounds and burning smell of firecrackers that cover the air with a recently invented term –‘Smog’ (As merger of smoke and fog)? The Supreme Court of India says yes- “let the people breathe clean air.. spend your money on sweets.”  

Turning down the plea for urgent hearing against the ban on firecrackers imposed by Delhi Pollution Control Committee (DPCC), the top court on October 20 said that the petitioner will have to wait for Diwali to get over to enlist his case. BJP MP Manoj Tewari who sought the intervention of the top court though termed the last-minute ban as ‘arbitrary’ to have adverse impact on the livelihoods, the SC prioritised fresh air over the investments made by the firecracker dealers.  

Notably, this statement of the SC stands in sharp contrast to its last year’s decision. On November 1, 2021, the vacation bench of SC comprising Justices A M Khanwilkar and Ajay Rastogi not only took over a petition challenging a Kolkata HC order of complete ban on firecrackers, it significantly set it aside. On October 29, the Kolkata HC banned the use of firecrackers including that of green crackers (allowed by the SC) till December 31.  

The top court in 2021 further emphasised that there is no total ban on firecrackers rather the ban is imposed only on firecrackers with barium compounds that produce excessive smoke. However, the same court this year denied the hearing even when an appeal for allowing green crackers were made. DPCC in its order banned the use of any sort of firecrackers including the green crackers that was earlier permitted by an SC judgement in 2018.  

The bench of Justices AK Sikri and Ashok Bhushan in their 2018 verdict in Arjun Gopal v Union of India case only allowed the use of green crackers and said that it could be burst in Diwali only for 2 hours – between 8 pm to 10 pm and in Christmas and New Year between 11:55 pm to 12 am. Interestingly, the day of the verdict was October 24- coincidentally the same day this year people are about to celebrate Diwali without any cracker in Delhi.  

In this backdrop, one question mops up: what is the effectiveness of such bans? Has data proved that the major pollutant for Delhi’s perennial winter pollution is firecrackers? And even if so, can the Courts be the battleground against pollution?   

The Order and Impossible Implication  

Alok Prasanna Kumar, a senior resident fellow at Vidhi Centre for Legal Policy in his 2018 paper in Economic & Political Weekly titled War on Air Pollution will not be won in the Courts showed how the 2018 order of the SC was hardly implemented.  

As per the reports of the Times of India (November, 2018), the air quality index of Delhi in post-Diwali phase in 2018 was worse than the previous year revealing the rare relevance of the judgement. However, not discounting the significance of the verdict totally, Kumar writes that it is not only the firecrackers, “number of factors, including the wind conditions, rains, and other sources of pollutants” contribute to the air pollution. So, to compare the pollution level of two different years for locating the contribution of firecrackers is literally impossible unless we ensure that the all the other components remain constant.  

The court though instructed both the Central Pollution Control Board and the state-level bodies to assess the short-termimpact of firecrackers, nothing much happened. Notably, it also threatened the jurisdictional SHO of Police with contempt of court if its order was not implemented. However, we are yet to hear about such contempt procedures.  

The most limiting aspect on the part of the Police is the provision of law. What law is the Police supposed to invoke to stop someone from bursting firecrackers? In 2018, as the research shows, it was found that Police slapped Section 188 of the Indian Penal Code, 1861 that penalises anybody who disobeys an order promulgated by public servant.  

However, the failure of such arbitrary evocation of sections continues to add up to the problems. Recently Delhi Environment Minister Gopal Rai while declaring the ban on any sort of firecracker said that the production, storage and sale of firecrackers in the capital will be punishable with a fine of up to Rs 5,000 and three years in jail under Section 9B of the Explosives Act. In between only October 1-19, Delhi Police have seized 13,700 kg of firecrackers and registered 75 cases in connection to either storage, production, sale or bursting.  

Those who live in Delhi and for that matter in any metropolitan city across India know the limitation of such actions. An understaffed police force sitting on the hills of pending cases if are expected to run behind the firecrackers, it seems to be nothing except sophistry.  

Stubble Burning and Diwali 

Every year, the time of Diwali coincides with another major issue of air pollution across Delhi, Punjab and Haryana- commonly known as stubble burning. In agricultural understanding residue of the plants are burnt by the farmers to make their field ready for the next phase of cultivation.  

National Green Tribunal in Ganga Lalwani v Union of India (2018) instructed the state governments of Uttar Pradesh, Punjab, Haryana and Delhi to penalise the farmers by not giving them minimum support price (MSP) if they burn the residues. The court however didn’t directly put the blame on either the central or the state governments for their failure to curb the residue crop burning.  

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Research shows that the agricultural solution could have been encouraging farmers to use harvesters and seeders to avoid the creation of residue crops. But, without noting that, NGT pushed for denial of MSP, the basic right of the farmers. The cost of losing MSP nevertheless happens to be still less than the loss the farmer bears if the stubbles are not burnt.  

The crop residue is also a result of Green revolution in this region that encouraged the use of tube well irrigation and the pressure to cultivate multiple crops in a given season, notes Kumar. Without considering these factors, curtailing the MSP benefit rarely helps any stakeholder.  

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To restrain the use of firecrackers in Diwali to the stubble burning in the fields what we need is not the judgements being shoved through our throats. The necessity lies in the collection of data to find the contribution of each component into the overall pollution.  

It is not courtrooms that can fight it. legal policy makers, civil society and the researchers should together to work with the other stakeholders to find out the alternatives. From the small-scale entrepreneur who have invested in the green crackers following the SC verdict of 2018 to the farmer who is burning the stubble to pave the way for the new crop are not criminals to be treated in the court of law- they need empathy of the public representatives who must not behave either like saviours or the megalomaniacs. 

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