The SC had been having a tryst with crackers for decades. Considering harmful effects of fireworks on ambient air and lungs, eyes and ears of people “particularly the ailing and the aged”, the SC on November 11, 2016, had directed the Union government to “suspend all such licences as permit sale of fireworks, wholesale and retail, within the territory of NCR; suspension shall remain in force till further orders of SC; and, no such licences shall be granted or renewed till further orders”.
On September 12, 2017, it lifted the complete ban and said sale of fireworks by the permanent licensees must conform to the directions given above and must be fully in compliance with the Explosives Rules. On October 23, 2018, it permitted bursting of “green crackers” while banning use of barium salts in the manufacture of fireworks. It had ordered that “on Diwali days or on any other festivals like Gurupurab, etc, it (bursting of crackers) would strictly be from 8 pm till 10 pm. On Christmas eve and New Year’s eve, it would be from 11.55 pm till 12.30 am only”.
On October 29 this year, the SC had made the state governments accountable for enforcing its orders. “Any lapse on the part of the States, UTs and their agencies shall be viewed very seriously. If it is found that any banned firecrackers are manufactured, sold and used in any particular area, the Chief Secretary of the concerned State(s), the Secretary (Home) of the concerned State(s) and the Commissioner of Police of the concerned area, District Superintendent of Police of the concerned area and the SHO/Police Officer in-charge of the concerned police station shall be held personally liable,” it had warned.
All these veiled threats of holding the police and state administration could not translate into a quieter Diwali. With just one policeman per 642 persons in India, it was well nigh impossible for the police force to stop people, who appeared to be on a mission to be disobedient this year, from bursting firecrackers. As a result, there was no check whether the crackers were “green” or “hazardous”. There was also no enforcement of the two-hour window for bursting crackers as the fireworks started much before 8 pm and continued well after Diwali midnight.
Bursting of crackers in defiance of SC orders and state governments’ decisions was preceded by continued defiance of SC’s landmark judgment in the case relating to Shaheen Bagh anti-CAA protests, where protesters blocked one of the main arterial roads of Delhi for months.
The SC had, while respecting the citizens’ right to protest against any legislation, firmly said, “We have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”
“We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions,” the SC had said, thus in a way terming the blocking of highways by farmers, who are protesting against three agricultural laws, as illegal actions.
Having held so, the SC is now engaged in an exercise to drive home the farmers’ organisations continuing with their protests on the highways. But, the exercise appears to be one in vain as the agitation spearhead – Samyukta Kishan Union – has refused to appear before the court on this issue.
Should the SC have left these two issues – regulating bursting of firecrackers and removal of protesters from public roads – to the executive and not jumped into the fray? In Mallikarjuna Rao vs State of Andhra Pradesh, the SC in 1990 had said, “It is crystal clear that the court has a very limited role and in exercise of that, it is not open to have (possess powers for) judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner.”
Nearly 30 years later in the Ashwani Kumar vs Union of India case, the SC in 2019 had said, “Judges are not accountable and answerable as the political executive is to the legislature and the elected representatives are to the electorate… Power of judicial review has expanded, taking within its ambit the concept of social and economic justice.”
“Yet, while exercising this power of judicial review, the courts do not encroach upon the field marked by the Constitution for the legislature and the executive, as the courts examine legality and validity of the legislation or the governmental action, and not the wisdom behind the legislative measure or relative merits or demerits of the governmental action. Neither does the Constitution permit the courts to direct, advise or sermonise others in the spheres reserved for them by the Constitution, provided the legislature or the executive do not transgress their constitutional limits or statutory conditions,” it had said.
“Referring to the phrase “all power is of an encroaching nature”, which the judiciary checks while exercising the power of judicial review, it has been observed that the judiciary must be on guard against encroaching beyond its bounds since the only restraint upon it is the self-imposed discipline of self-restraint,” it had said.
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