AbstractIt by parallel organs of the state, it is

AbstractIt is well settled truth that judiciary has marked a remarkable shift in its traditional role towards a more participatory one to cater the needs of the evolving society with changing time. Now it performs vital functions like being guardian of fundamental rights of the citizens to acting as custodian to keep necessary eyes upon constitutional transgression by parallel organs of the state, it is the supreme interpreter of our constitution and varied organic laws within the constitutional scheme.A thin line differentiating the inappropriate from appropriate judicial intervention can only be drawn by reason of functions designated to the separate branches by the Constitution. A juridical controversy at the epicentre of the conflict decides the need for judicial intervention in the borderline cases. While courts have been criticized for assuming the role of the executive and making policies by using special powers given under the Constitution, in matters such as the firecrackers case, the government clearly has itself to blame as it has remitted ground through its inaction. The power of apex judiciary to issue a writ of mandamus or other suitable direction to the concerned public authority commanding performance of its legal obligation is the remedy. Instances such as these erode the executive’s credibility and make it difficult for the government to resist real judicial overreach leading to legitimate judicial intervention.Introduction”Pretty much all law consists in forbidding men to do something that they want to do.” ~ Oliver Wendell Holmes, Jr., Supreme Court JusticeThe law, judiciary and the legal system has been created to protect the interest and rights of the people and as we also read that “Salus Populi is the suprema lex”. And sometimes in protecting the interest of the people’s , courts often ends up restraining people from enjoying their certain rights of enjoyment and the same has been witnessed recently when the Apex court banned the sale of cracker in the Delhi/NCR Region till November 1,2017. The decision was taken after considering the alarming situation of pollution in Delhi. But the decision received a mixed reaction from the citizens, the judgment became the hot topic for the debate in all media platforms and also be tried to give a religious touch by relating it with the sentiment of the people. Amongst all the puffery done to the topic the major issue of pollution remained neglected. The ban was considered as the judicial intervention or the intrusion of the court as this was not the first time when court has stepped forward to deal an issue of public interest. It has been witnessed that the court has always through it landmark judgments and rulings has tried to protect the interest of the people which was considered as judicial activism and few may call it judicial dictatorship.As Indian citizens, we should be aware of the rights and duties which are attached to festive celebrations and ought to be adhered to at all instances, not just for our own well-being but the benefit of the society as a whole.Growing Pollution: Major Problem In Contemporary TimeAir pollution levels had hazardously spiked after Diwali in 2016. Even though crackers are not the only reason for growing pollution yet they form a major reason of pollution concern every year during Diwali- Dussehra festivities with trending talks about ban on firecrackers. Owing to this increase in air and sound pollution levels, the count of reported cases due to the same have risen, creating a cause of concern among the nation and its people. Significant rise in the number of breathing ailments among infants has led to various awareness campaigns and precautious actions by the government authorities.Harmful effects of firecracker PollutionSmog Smog causes reduction of visibility which leads to accidents and is also toxic to be inhaled. Smoke from automobiles when mixed with particulate matter, is choking Delhi enough. The onset of winter worsens the situation in NCR as cooler temperatures trap pollutants exacerbated by crop burning in neighbouring states. The pollution level goes up by more than 30% due to bursting of firecrackers during Diwali. One big firecracker is said to produce up to 250cc of smoke. The resultant air pollution produces airborne arsenic effect and carcinogenic sulphur compounds along with water contamination and acid rains.Hazardous gasesFireworks produce a shower of toxic chemicals with dazzling coloured displays. Aluminium brings out the bright white colours, while antimony sulphide emits the glittering shimmers. The copper compounds give bright blues, while barium nitrate creates the green colors. The red colours are produced using strontium. Busting these chemically manufactured crackers produces nitrogen dioxide, Sulphur dioxide and particulate matter, so minute that it has the ability to enter our bloodstream when lodged in the lung. According to a study, bursting crackers rises the level of sulphur dioxide 200-fold above prescribed the safety limits by the World Health Organization (WHO). This pollution can trigger asthma attacks and also give new cases of asthma. Asthma patients and those with other respiratory disorders report discomfort and worsening of conditions on and after Diwali with Chronic bronchitis, asthma attacks, Common Cold, heart attacks, etc.Every year, various cases related to burn injuries are reported in New Delhi, the national capital of India along with 30% to 40% increased cases of wheezing, exacerbation of bronchial asthma, respiratory diseases and bronchitis patients post-Diwali. Global warmingThe toxic gaseous oxides and dioxides of sulphur and nitrogen released during on burning of firecrackers are not only very harmful to human health but the environment as well. It leads to Global warming, which in turn has many harmful effects on our health while depleting the environment.Land PollutionGarbageDo you like to see garbage all over when you wake up on the day after Diwali? On sight garbage that is lying on the roads after Diwali poses another serious problem. This garbage is full of chemicals and effects hygiene level of people residing in that area. The bursting of firecrackers not only pollutes by contaminating the air, but also pollutes the land.Noise PollutionNoise pollution is as menacing as air pollution. It poses serious threat to human beings and furthermore to animals who have more sensitive ears than that of humans. These innocent animals are unable to communicate how badly they get terrified and confused seeing the light changing and loud noise firecrackers bursting all around. 60 decibel is the Standard level set for humans is 60. Increase in that leads to various health hazards like  Fidgetiness, restlessness,  Anger, High Blood Pressure, Heart Attacks,  Impulsiveness, Sleep Disturbance, temporary or even permanent hearing loss. A dog’s hearing sensitivity is 3,000 times more than a human’s. An average cracker produces 90 decibel sound which is enough to scare a dog. Every year numerous dogs are injured on the spot, or lost never ever to be found. Birds and other animals need not be absolutely closeby to suffer ailments by deafening loud sudden sounds instilling panic in almost every creature in the vicinity. Befitting laws Over the years, lack of necessary attention to the laws pertaining the kind of crackers fit for sale and manufacturing has led to failure in regulating use of crackers strictly and also been major cause of unawareness among the citizens.In accordance with the “Environment Protection Act, 1986 along-with the Environment Protection Rule, 1986 and 1999 (amendment) rules”; Rule 89 prescribes “The manufacture, sale or use of firecrackers generating noise level which exceed 125 dB (AI) or 145 dB(C) at 4 meters distance from the point of bursting shall be prohibited.”An expertise is required to ascertain decibel (dB) level which must be adhered by the manufacturer and it is also a duty of the citizens not to buy crackers in violation of this provision.Rule 14 of The Explosives Rules 2008 states that “every manufacturer shall on the box of each firecracker shall mention details of its chemical content, sound level and that it satisfies requirements laid down by the chief controller” Thus, in order to ensure the highest safety standards all firecracker buyers must keep in mind the above prescribed provisions of law and also help in identifying such crackers in violation of rules and regulations.Furthermore, bursting crackers is against the constitutional mandates in Directive Principles of State Policies (DPSP)- As the state solemnly swears to preserve and protect the environment under Article 48A. It speaks about “Protection and improvement of environment and safeguarding of forests and wildlife. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”Prohibitory Regulations on sale of imported crackersThe Department of Industrial Policy & Promotion under Ministry of Commerce & Industry has banned the illegal imports, possession and sale of firecrackers of foreign origin. The manufacture, possession, sale etc of any explosive containing sulphur or sulphate mixed with any chlorate is banned in the country.The state governments have received strict instructions from the centre to take serious steps against the sale of Chinese crackers. A strict crackdown on any such sale has been ordered as these crackers contain certain chemicals which are beyond the permissible limits of safe standards making them more harmful.Legal arguments contending firecracker banRight to profess one’s religion and customary practicesThe bursting of firecrackers has been associated with Hindu traditions for years and sudden implementation of a permanent ban on it might hurt various religious sentiments. Fireworks have been an innate part of the Diwali celebrations for not just Hindus, but people of other religion equally partake in this festival. Opposing that the ban strikes at the heart of a quintessential Hindu tradition, critics compare it to banning Christmas trees on Christmas. In lieu of banning the fireworks, reformatory measures can be taken to lessen the amount of these fire crackers burnt in a single day. Specific areas near hospitals and old age homes, etc. should have strict application of firecracker prohibition rules.Contravention of right to professionRight to profession is a fundamental right guaranteed under article 19 of the Indian constitution which reads that everyone have equal right to practice any profession, or to carry on any occupation, trade or business subject to reasonable restrictions.The ban ordered in nick of time without ample notice puts in jeopardy the firecracker industry which includes wholesalers, retailers and many small vendors who suffered an estimate lose in business around Rs 1,000 crore. A study in Business Standard showed that the judgment would immediately affect around 2,500 shops, close to 250 small and big wholesalers and deal a cruel blow off to the Rs 4,000-crore industry giving a great problem of unemployment because of this ban. As a matter of facts, the two largest sources of PM 2.5 pollution in Delhi are road dust (38%) and vehicles (20%). This is not to forget stubble burning in neighboring Punjab and Haryana where 35 million tonnes of crop will contribute anywhere between 12 to 60 percent of Delhi’s air pollution. Hence, calling the ban unfeasible, stopping sale of Diwali firecrackers is well intentioned but won’t work. The NCR situationOn 11 November, 2016 the Supreme Court canceled all the sale permit licenses of wholesale as well as retail of firecrackers in Delhi for curtailing pollution. However, this ban was lifted on 12 September this year as Supreme Court says that to tackle pollution in this city a graded and balanced approach is necessary rather than being radical and extreme. It was also improbable whether the hike in Delhi’s pollution levels is caused only by Diwali crackers. An IIT Kanpur report in 2016 found that “the total PM10 emission load in the city” to be 143 tonnes each day and according to a The Indian Express report, “enlisting the top contributor as road dust (56%) and vehicles (20%), followed by domestic fuel burning and industrial point sources.” Also included among pollutants’ list are construction dust, municipal solid waste burning and diesel generator sets. Then there is the annual problem of crop stubble burning in the neighboring states of UP, Punjab and Haryana. Lack of economically viable solutions worked out for removing paddy residue, penalty fines have failed to preclude farmers from taking to burning. Along a similar vein, trucks not destined for Delhi continue to transit through the NCR due to lack of alternative routes. Thus, striking bans and penalties won’t improve NCR’s air quality – concomitant incentives to alter behaviour also need to be worked out. The need is for holistic solutions that address the root causes of the problem.Plans to tackle these have not proved effective. SC had previously directed the repairing and building of pavements and vacuuming of roads, to control dust pollution. Despite this Delhi’s three municipal corporations together have just 19 mechanised sweeping machines. Likewise, to boost public transport and decrease the number of new cars, the Delhi Transport Corporation (DTC) needs new buses. But only 1,000 buses for DTC were cleared for procurement last month as against the demand for around 4,700.Cancellation or suspension of licenses issued under Explosives actThe law mechanism in this regard is very clear as rule 118 of the Explosive Rules, 2008, framed under the Explosives Act, 1884, prescribes for the manner in which licenses issued under the Explosives Act to store and sell explosives can be cancelled or suspended. Sub-Rule (5) thereof specifically confers on the Central Government a power to cancel or suspend any license in public interest. This rule also makes it clear that an opportunity to hear the licensee could be dispensed with if the Central Government considers that in public interest. This Court finds that the grave air quality situation in NCR is one such case, where this Court, can intervene and suspend the licenses to store and sell fireworks in the NCR. We direct the Central Government to:Suspend all such licenses as permit sale of fireworks, wholesale and retail within the territory of NCR.The suspension shall remain in force till further orders of this Court.No such licenses shall be granted or renewed till further orders.Landmark judgment of 2000In the landmark case of “Prevention of Envn. & Sound Pollution v. Union of India” AIR 2005 Sc 3136: (2005) 5 SCC 7332005;, the apex court laid down a few essential guidelines relating to firecrackers and addressing other problems of sound pollution.The key highlights being as follows;The firecrackers may be divided into two categories by the Department of Explosives– (i) Sound emitting firecrackers, and (ii) Colour/light emitting firecrackers.It is not requisite to impart restrictions as to time on bursting of colour/light emitting firecrackers. However, there shall be a complete ban on bursting sound emitting firecrackers between 10 p.m. and 6 a.m. Every manufacturer shall mention details of chemical contents on the box of each firecracker and that it satisfies the requirements as laid down by Department of Explosives.This order came into force 10 years ago, in pursuance to Articles 141 and 142 of the Constitution. The authorities have been reluctant and apprehensive in implementing this order which has led to the Supreme Court being discontent and expressing concern over the same. The court has directed that non-implementation of the same is leading to gross violation of the Fundamental Rights which must be preserved and respected at all times.Arguments have often been made against such restrictions on the grounds that it violates Article 25 of the Constitution, i.e., to practice and propagate our religion freely. What one must keep in mind that Fundamental Rights are not absolute in nature and falls under the umbrella of certain reasonable restrictions. Diwali, per se, is considered to be a festival of lights.The apex court in its landmark judgment; “Church of God in India vs. K.K.R Majestic Colony Welfare Association” held that the court can put certain restrictions on controlling the noise, even if such noise was a direct consequence of any religious ritual or activity being held. This judgement puts certain reasonable restrictions and in no way violates the basic fundamental right to practice one owns religion.Constitutionality of cracker banThe ban on crackers has been associated with the religious beliefs and the sentiments of the people of a particular religion, few argued that the Ban forbids them from exercising their right under article 25 of the constitution ,also it has been debated on the basis of article 21.But the point which has to be understood by the people is that Article 25 in its clause (1) states that ” Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion” according to the provision the right to profess religion is subjected to health of citizens which have been given importance upon the right. Also according to article 21 of the constitution which speaks about personal life and liberty, it also includes clean and healthy environment (M. C Mehta v. Kamal Nath AIR 2002 SC 1997) as it’s included under the ambit of right to life.Judicial intervention or intrusion”The line between judicial activism and judicial overreach is a thin one…A takeover of the functions of another organ may become a case of over-reach.”  – Dr.Manmohan SinghThe judiciary has always been condemned by the executive and legislature for the overreached approach on several occasions. In Aravali Golf Club case 2008 1 SCC 683   it was said by the bench comprising Justices A.K.Mathur and Markandey Katju that “If the judiciary does not exercise restraint and overstretches its limits, there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the power, or even the independence of the judiciary.” This had been observed last year when the government introduced NJAC and also made constitutional amendments which was later quashed by the apex court. The situation of rift and contradiction clearly indicated the conflict between the two organs which somewhat has arisen due to the judicial activism in the last decade.But as we flip the other side of the coin, we must also consider the fact that apart from few instances the judiciary only intervened on those matter which derives utmost public importance or where the legislature fails to play their part efficiently. Laws relating to sexual harassment at work place which was made after the guidelines of Vishaka v State of Rajasthan, or the guidelines issues by the court on environment pollution, prison reforms, gender justice etc were laid down only when the court found the existing laws incompetent to meet the present needs or the legislature failed to provide relief to the people. The ban on the firecrackers if we consider it on a broader sense was imposed to curb the pollution during Diwali which is on an alarming figure and its impact can be seen on the next day of the festival. The pollution level reaches to that extent where it gets unsafe to breathe. It has been argued that why the ban has been imposed on a particular festival, why not a permanent ban on crackers or giving it a political twist the court has also been accused of religious biased.But here we are missing an important point that why there came a need that infants has to appeal to the apex institution of justice for breathing a clean air, why the situation became that worse that such bans and regulations were felt necessary. It can be very well understood with the quote of news report that “If we had the sense to self-regulate, to understand the importance of common sense moderation it would not come to this pass.”ConclusionDiwali is a festival of lights symbolizing the victory of good over evil. It teaches us to walk on the path of dharma and truth and should destroy evils from our lives. In modern times the evils are not the demons as we read in religious epics but the issues like terrorism, poverty, illiteracy and pollution and the real battle is to be fought with them. The festival of lights instead of creating noise in our surroundings we should try to lit the lights in the life of the people. Because Diwali is not the festival of few, it is also the festival of small children, Patients suffering from lung problems, animals and elder people. The joy and happiness can be expressed by giving a helping hand not by creating noise and smoke.The ban imposed needs to be understood in its true spirit rather than twisting the facts and making own presumptions. The judiciary has been created to protect the rights of people to subserve them the ban doesn’t fulfill any personal interest nor shows any personal vendetta against a particular community or festival it can be quoted that “The hue and cry over the SC order shows how festivals are being increasingly reduced to their ostentatious and commercial aspects. Insisting on your right to celebration in your own way, while neglecting the harm you are causing to others, is in no way in keeping with the spirit of the festival.”