The Supreme Court’s order of 9 October 2017, in Arjun Gopal and Others versus Union of India and Others (Writ Petition, Civil, No. 728 of 2015), banning the sale of fire crackers in Delhi and the National Capital Region (NCR) has set the cat among the pigeons.

As the order mentions “Diwali” in almost every paragraph, with a sprinkling of “Dussehra”, it is difficult to avoid the feeling that Hindu festivals are being selected and denuded of their joyous exuberance, in the name of higher good. Social media has listed restrictions on the height of Dahi Handi during Krishna Janmashtami, use of water during Holi, attempts to ban Jallikattu bull-hugging race in Tamil Nadu, and now ban on sale of crackers on Diwali eve, as instances of intolerance of Hindu culture. The judgement could cause losses to hundreds of shopkeepers across NCR to the tune of Rs. 1,000 crore.

Currently, air pollution in Delhi-NCR is being aggravated by burning thousands of tonnes of rice stubble in Punjab, Haryana, Rajasthan, and Uttar Pradesh. Other polluters include road dust, construction dust, vehicle emissions, municipal solid waste burning and diesel generator sets. At the time of writing, with Diwali five days away, pollution was at its zenith.

India’s rice stubble problem drew international attention in 2016 when the US National Aeronautics and Space Administration released a satellite image of fires across millions of hectares of fields in Punjab alone. Haryana and Punjab burn nearly 35 million tonnes of crop residue and contribute to half of Delhi’s air pollution. The National Green Tribunal noted that stubble burning boosts carbon dioxide levels in the air by 70 per cent and raises levels of carbon monoxide and nitrogen dioxide, triggering respiratory and heart problems.

Besides, the soil loses nitrogen, phosphorous, potassium and sulphur. Crop residue should be returned to the soil to increase organic carbon content, in situ moisture, and become manure. But most farmers avoid the labour and burn the stubble, which heats the land and kills soil microorganisms, affecting overall productivity.

However, marginal farmers in Panipat and Sonepat districts of Haryana have started using straw to make compost to grow mushrooms and earn healthy profits. In 2016, the Union Power Ministry asked the National Thermal Power Corporation to find solutions, including converting straw into briquettes that can be burnt in existing power plants. About 15 million tonnes of rice straw can be converted into 1,000 MW of electricity; rice-growing States produce 130 million tonnes of straw; some is used as animal feed, some sold to brick kilns and the paper and packaging industry, but the majority is burnt. But recently, in Patiala district, Punjab, a power company harvested and collected the straw itself and generated 12 MW, while farmers saved time and labour and earned some cash. With eight more biomass power plants slated to come up in Punjab, some solutions may emerge.

Briefly, Arjun Gopal and Others sought wide ranging reliefs against the use of fireworks (including crackers), prevention of harmful crop burning, dumping of malba (construction waste) and other steps towards environmental purity, and sought interim relief in the matter of fireworks on grounds of worsening air quality in Delhi-NCR due to extensive use of fireworks and fire crackers during Diwali 2014.

However, ignoring the on-going problem of crop residue burning, the bench comprising Judges A.K. Sikri, Abhay Manohar Sapre and Ashok Bhushan decided that snapping the supply chain of fireworks was the more practical way of addressing the menace, instead of banning the burning the crackers by individuals which would be difficult to monitor and enforce.

Asserting the duty of the State to ensure a healthy environment in terms of Article 48A of the Constitution of India and the matching duty of citizens under Article 51A(g), the Court upheld the “precautionary principle” which mandates that where there are threats of serious and irreversible damage, lack of scientific certainty should not be invoked to postpone measures to prevent environmental degradation. In these circumstances, the Court had passed an interim relief order on November 11, 2016.

When the manufacturers of fire crackers and licence holders applied for modification of the interim order, the Court noted that air pollution in Delhi-NCR worsened due to fireworks during Diwali days in 2016. The order of September 12, 2017 admitted that from the material before the Court, it was impossible to state with certainty that the extremely poor quality of air in Delhi in November and December 2016 was the result only of bursting fireworks around Diwali. But the Court argued that Delhi Police had issued a large number of temporary licences in 2016 and a similarly large number could be assumed to have been issued in NCR, which require regulation.

Hence, the appeals of the manufacturers and licence holders were dismissed; it was pointed out that nearly two decades ago, the CPCB had stated that Sulphur should not be permitted in fireworks as it produces the extremely toxic Sulphur Dioxide on combustion. The Board was directed to carry out further studies on the harmful effects of materials used in manufacturing fireworks.

The CPCB was directed to set safety limits of various constituents used in fireworks for setting standards for ambient air quality while bursting fireworks. The Court appointed a Committee of experts headed by Chairperson, CPCB, to submit its report on or before 31 December 2017. The CPCB is responsible for much of the present crisis as it failed to fulfill the Supreme Court order of November 11, 2016 to prepare a report on the harmful effects of materials used in fireworks, within three months.

The Court accepted the petitioners’ plea that the suspension of licences should be tested for positive effect during Diwali 2017. Thus, despite the dangerous levels of pollution well in advance of Diwali, and despite lack of empirical data regarding causes of air pollution in the capital, it suspended temporary licences to shopkeepers to ensure that there are no sales of crackers in Delhi-NCR. It is difficult to understand what baseline will be adopted to measure the pollution on and after Diwali.

The Supreme Court order strays into the realm of public policy, which is the domain of government. By banning the sale but not use of crackers, the Court has created a bizarre situation and triggered public rage, with angry pledges to burst more crackers to protest the embargo. Barring the Shiv Sena, political parties have been passive in the face of this cultural euthanasia, though the Rashtriya Swayamsevak Sangh has expressed displeasure.