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Wednesday, December 08, 2021

SC sets aside Calcutta HC’s ‘extreme order’ on total firecrackers ban

The Calcutta High Court on Friday had ordered a blanket ban on firecrackers, including green crackers, up to December 31 this year.

By: Express News Service | New Delhi |
Updated: November 2, 2021 5:26:10 am
Before pronouncing the order, the court also observed it will be very difficult to segregate green crackers from normal, polluting firecrackers.(Representational Photo)

The Supreme Court on Monday set aside the Calcutta High Court order imposing a total ban on use of firecrackers during festivals such as Kali Puja, Diwali, Chhath Puja, Jagadhatri Puja, Gurpurab, Christmas Eve and New Year’s Eve this year, terming it an “extreme order”.

A bench of Justices A M Khanwilkar and Ajay Rastogi set aside the order after being told that the HC had proceeded on the “unfounded apprehension that there is no sufficient mechanism in place to ascertain whether the crackers used are green”.

The top court said it had taken a consistent view in the matter since 2018, and this was also reflected in its latest order on October 29, 2021.

The court said, “We do not deem it necessary to dilate on this aspect, as we are of the view that if the High Court wanted to impose a complete ban, it should have called upon the parties to offer explanation about the aspects which were weighing with it (not specifically pleaded or argued) requiring such extreme order and departure from the consistent directions given by this court…”

In October 2018, the SC had banned production and sale of all crackers, except ‘green crackers’ and those with reduced emissions (improved crackers). It had also banned manufacture and sale of ‘joined crackers’, prohibited the use of barium salts in fireworks, and said their noise levels should be within permissible limits. The court also banned their online sales and directed that they can be sold only through licensed traders and laid down the time schedule for bursting on various occasions.

The court reiterated this in the October 29 order, while making it “clear that there is no total ban on use of firecrackers”, and that “only those firecrackers are banned, as directed…which are found to be injurious to health and affecting the health of citizens, more particularly senior citizens and children”.

The HC order came on the same day.

A division bench of Justices Sabyasachi Bhattacharya and Aniruddha Roy of Calcutta High Court ordered a blanket ban on use and sale of firecrackers, including green crackers, up to December 31 this year.

Hearing the challenge to the HC order by an association of firecracker dealers, the SC bench made its displeasure clear over different high courts pronouncing different orders in the matter despite its 2018 directions and said, “It has to be consistent everywhere. You cannot have different modalities for different areas. If required, it has to be done by executive.”

Appearing for the association, senior advocate Siddharth Bhatnagar said the HC had gone ahead and banned even green crackers despite three SC orders and two NGT orders on the subject. He pointed out that SC had in one of the orders upheld the ban in areas where air quality is “poor”, while also stating that in other areas, authorities may permit the use of green crackers.

Justice Khanwilkar pointed out that the HC had merely said about practical difficulties in ensuring if the crackers sold are green but not explained what the practical difficulty is. “What are the practical difficulties is for the executive to decide,” Justice Rastogi observed.

Senior advocate Gopal Shankaranarayanan, who appeared for original petitioner Arjun Gopal in SC, sought to defend the HC order. He pointed out that the October 29 order had underlined that a CBI inquiry had found that crackers that use harmful chemicals were still being sold using fake green cracker labels and fake QR codes. He said that Petroleum and Explosives Safety Organisation (PESO), which has been entrusted with the task of approving the crackers, had only cleared four brands.

Appearing for the state, senior advocate Anand Grover said the order came on an “unfounded apprehension on part of Calcutta HC…that there is no sufficient mechanism in place to ascertain whether the crackers used are green”.

Grover added that such a system does exist and said the state was monitoring the situation and was also enforcing the SC’s 2018 order. “There is a mechanism. From 2018, we have been monitoring. There are a number of FIRs registered. In 2018, 24 FIRs were registered and 46 were arrested. 019, 22 FIRs were registered and 26 persons were arrested. In 2020 190FIRs, 243 FIRs. In 2021, till October 31, 7 FIRs were registered and 10 persons were arrested,” Grover said.

Taking note, the SC said in the order that “we accept the explanation given by the state”.

The bench said the court had taken a consistent stand since 2018 and added that “to depart from the same, some different position has to be pointed out including about the inaction or collusive approach of the authorities at the ground level”.

Restating its October 29 order, the court also directed that all authorities shall abide by the other conditions also laid down in it. It also asked West Bengal to explore the possibility of ensuring that the crackers are checked whether green or not at the stage of import itself instead of going around shops checking individually.

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