[BREAKING] "There cannot be total ban on firecrackers:" Supreme Court sets aside Calcutta High Court order imposing blanket ban

The Supreme Court on Monday set aside a recent order of the Calcutta High Court imposing a complete ban on use of firecrackers in West Bengal during upcoming festivities of Kali Puja, Diwali, Chatt Puja, Jagadhatri Puja, Guru Nanak’s Birthday, Christmas Eve and New Year’s Eve this year (Goutam Roy v. State of West Bengal).

A special vacation bench of Justices AM Khanwilkar and Ajay Rastogi said that the Supreme Court has already passed an order regulating use of firecrackers which use polluting materials and there cannot be a blanket ban on firecrackers.

"There cannot be complete ban on firecrackers. Strengthen mechanism to supervise and implement (Supreme Court's earlier directions)," the Court remarked.

The Supreme Court order of July 2021 and October 2021 had banned use of barium salts in firecrackers while allowing use of green crackers.

The Calcutta High Court had however, imposed a blanket ban on firecrackers on the ground that it would be practically impossible for the executive to identify and take action against violators since no mechanism was in place to distinguish green crackers and it would create an impossible task for law enforcement agencies.

The Supreme Court, however, said that the top court's order applies uniformly to all States and West Bengal cannot be an exception.

"This is not a new issue. The Supreme Court has already passed order. It has to be implemented uniformly," the apex court said.

The State of West Bengal through Senior Counsel Anand Grover, submitted that it has been taking action pursuant to the top court's order against persons found violating the directions.

The Court recorded Grover's arguments and proceeded to set aside the High Court order.

"The State submits that officials are taking necessary steps to ensure that directions issued by this Court (Supreme Court) are complied with in letter and spirit. We set aside the impugned order and permit any person interested to approach High Court by placing all relevant materials," the Supreme Court directed.

The Calcutta High Court had on October 29, 2021 imposed a total ban on use of all types of firecrackers in West Bengal this year taking into account the COVID pandemic situation in the State and the deteriorating air quality.

Only wax or oil-based diyas can be used, the High Court had directed.

"The State should ensure that there is no use or display or bursting of firecrackers of any type at all during the oncoming Kali Puja, Diwali celebration as well as the following Chatt Puja, Jagadhatri Puja, Guru Nanak’s Birthday and/or Christmas/New Year’s Eve this year. For such purpose, only wax or oil-based diyas might be used," the order said.

A Bench of Justices Sabyasachi Bhattacharyya and Aniruddha Roy had also directed the police to maintain strict vigil and ensure that no sale, purchase or use of firecrackers takes place during the festivities. Further, the police was asked to confiscate any firecrackers of any kind which have the potential to pollute the air.

The State of West Bengal had, however, opposed a total ban before the High Court pointing out orders of the National Green Tribunal and Supreme Court that permitted the use of “green crackers” in a restricted manner.

However, the High Court had rejected this submission in view of “practical realities”. It was observed that there was no mechanism in place to distinguish green crackers and it would create an impossible task for law enforcement agencies.

Before the Supreme Court today, Senior Advocate Siddharth Bhatnagar appearing for certain firecracker dealers, pointed out that the National Green Tribunal (NGT) and the Supreme Court had dealt with the issue at length.

He submitted that the Supreme Court had not imposed a total ban and the Calcutta High Court order goes against the same.

Senior Advocate Malvika Trivedi also appearing for another appellant, adopted the same argument.

Senior Advocate Gopal Sankaranarayanan who has been appearing for a petitioner before the firecracker ban petition pending before the Supreme Court, however contended that many firecracker manufacturers were using banned firecrackers by putting green cracker labels.

This issue was taken note of by another Bench of Supreme Court headed by Justice MR Shah last week, Sankaranarayanan said.

"What Calcutta High Court has done is after weighing Article 19 right of traders and right to health of people under Article 21, leaned in favour of Article 21 because if Supreme Court order is not implemented properly, then the damage would be irreversible," he said.

The Bench however, declined to agree while also taking note of the cases registered by West Bengal government against those found violating the apex court's directions.

"High Court passed blanket order citing practical difficulties and lack of mechanism to implement bursting of only green crackers. Anand Grover for State says had this issue been highlighted the State would have brought all data on record and dissuaded High Court against departing from Supreme Court order. We are convinced that Calcutta High Court should have called upon parties to give explanation before passing such an extreme order," the Supreme Court noted in its order while setting aside the High Court order.

The Court, however, made it clear that any interested party may approach the High Court with relevant material on the issue.

[Read Order]