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The Supreme court had earlier in Oct 2018 closed down the firecracker industry to curb pollution. The court on March 12, 2019 took a relook into its order banning the existing firecrackers. A bench of Justices SA Bobde and S Abdul Nazeer asked the Centre whether any comparative study has been done to fairly establish that vehicles pollute more than firecrackers.

There was another reason also for the court’s change of heart. The judges felt that its order had brought the entire firecracker industry to a grinding halt. This meant that scores of people lost jobs. The Court said that a ban on firecrackers cannot be indefinite as it affects the livelihood of those families living on it.

The cracker manufacturers who have explained to the court that they are minor defaulters compared to the automobile industry. Moreover, the manufacturers claimed that firecrackers is used extensively during certain days of the year while the real contributors to pollution are vehicles, crop burning, dust from construction activity among other sources.

The bench said that the court must be mindful of citizens’ right to life which includes right to employment, right to carry out trade as well. “We do not want to generate unemployment. This trade (firework manufacturing) is not illegal as it is a licensed business. How can it be stopped? At best, it can be regulated.”

There are serious flaws in the observations of the apex court Bench vis-a-vis the Constitutional provisions on Right to Life and the earlier judgments of the Supreme Court on environmental protection.

Automobile pollution is a very serious pollution. If need arises, the automobiles have to be curtailed or even stopped till corrective steps are taken because clean air is far more important. Terming the cracker pollution as less srious, the court observes that it need not be stopped altogether. Will the court allow the offenders of less serious crimes to go unpunished simply because very many offenders of serious/heinous crimes are escaping punishment?

The argument of the cracker makers that cracker pollution is only seasonal and not a perrenial one like the pollution arising out of automobiles, stuble burning and construction activity is ridiculous. A crime is a crime whether it is seasonal or perennial.

While the right to employment and right to carry out trade are very important rights, the Bench cannot deny that life, health and ecology have greater importance to the people. Right to carry out trade does not guarantee the enterpreuner the right to pollute.

Let us study the various judgments of the Supreme Court delivered on the industrial pollution cases in the face of the observations of the bench of Justices SA Bobde and S Abdul Nazeer.

Our Constitution evinces great concern for environment. Article 48-A of the Directive Principle mandates that the state shall endeavour to protect and improve the environment. One of the fundamental duties prescribed in Article 51-A is to protect and improve the natural environment.

Despite these constitutional provisions, pollution continues unabated. The river Ganges was brazenly polluted by the discharge of effluents by some tanneries in Kanpur. Hence the apex  court was constrained to issue directions for the closure of the tanneries. The court was conscious that closure of tanneries may bring unemployment and loss of revenue, but it significantly ruled that “life, health and ecology have greater importance to the people.”

In its landmark judgment in the Oleum Gas Leak case, the Supreme Court laid down certain important principles. A five-judge bench unanimously ruled that “an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.”

At first blush, this may appear unduly harsh. However the rationale for this rule as explained by the court is that “such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such activity indemnifies all those who suffer on account of the carrying on of such activity regardless of whether it is carried on carefully or not.”

In its subsequent judgment in Vellore Citizens Forum, Justice Kuldip Singh speaking for the court held that “the Precautionary Principle and the Polluter Pays Principle are essential features of Sustainable Development.” This is a milestone judgment in our environmental jurisprudence. The court reaffirmed the Polluter Pays Principle laid down in its previous judgments to mean that “the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.

While the bench on March 12 talked about the right to carry out trade, it has ignored that “the Precautionary Principle and the Polluter Pays Principle are essential features of Sustainable Development.” There is no absolute right to carry out any trade. Only sustainable trade is permitted.

There cannot be two views about the advantages of starting an industry, providing employment to people and improving the revenue of the state. But there can be only one view: Health well-being and protection of our people from ecological degradation are paramount and must override employment and rupee considerations. Cracker or automobile manufacturers are not solicitors of the fundamental rights of our people.

Any legislation or judgment that attempts to dilute the Polluter Pays and Precautionary Principle and the concept of Sustainable Development is likely to be struck down as it would be in blatant defiance of the Supreme Court judgments. Moreover, it would be against the interests and the cherished fundamental right to life of the people of India whose protection should be the primary concern of any civilised democratic government or court.

The bench also failed to notice the horrendous human rights violations by the firecracker industry by way of forcing its employees to work in extremely hazardous conditions and engaging child labour rampantly.

Sankara Narayanan is an independent writer

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