1. Hearing in the #Diwali firecracker ban Petition has commenced. Counsel for the Union is reading out the suggestions for further regulation of firecrackers for this Diwali.
2. Mr. Shekhar Naphde, Senior Counsel for the State of Tamil Nadu, is responding to the suggestions of the Union. Mr. Naphde submits that he finds it rather surprising and mysterious that the Union did not consult FRDC before making the suggestions for further regulation.
3. Mr. Naphde explains the specific mandate of the FRDC and the very object of its creation.
4. Mr. Naphde submits that there is no evidence that fireworks are solely responsible for the pollution levels around Diwali. He further submits that any restriction imposed must be reasonable within the meaning of Article 19(6)
5. Mr. Naphde submits that the entire case of the Petitioner is based entirely on conjecture and not concrete scientific studies.
6. Mr. Naphde submits that ban is an extreme measure and needs a high standard evidence. He cites of the failure of the odd-even rule in Delhi.
7. Mr. Naphde submits that while every problem needs a solution, the Court must ask itself if the solution itself creates a problem.
8. Mr. Naphde cites technology as the solution. He points out that pollution control technology in the context of cars has surged ahead.
9. Mr. Naphde submits that nobody thought of banning cars to prevent or eliminate vehicular pollution. He submits that nobody has thought of banning construction activity to eliminate dust pollution.
10. Mr. Naphde submits that it is inexplicable why a comprehensive scientific study of impact of fireworks has not been undertaken by the Central government institutions like PESO so that an informal decision may be taken.
11. Mr. Naphde submits that FDRC was established in 2002 and in last 16 years there has not been a single study prescribing the limits for ingredients of fireworks.
12. Mr. @jsaideepak commenced submissions on behalf of @indiccollective which is Respondent No. 81 in the Petition.
13. Mr. @jsaideepak placed before the Court a 2018 study of the NEERI and the IIAS (Austria) which clearly point to multiple factors which contribute to pollution in the NCR, none of which point to Diwali as the sole or the biggest contributor of pollution in NCR
14. Mr.@jsaideepak placed before Court the 2018 report of Parliamentary Standing Committee on causes of pollution in Delhi which lists seven major factors of pollution but not Diwali. This clearly shows that baseline pollution is itself high for reasons not attributable to Diwali
15. Mr. @jsaideepak further submitted that there is near consensus among all parties on either sides that there is absolutely no conclusive scientific data which sets out the contribution of Diwali to pollution.
16. Mr. @jsaideepak submitted that this is not because it is not possible to assess it, but because no one has undertaken a comprehensive study in this regard.
17. Mr. @jsaideepak also submitted that in the absence of scientific data, when there are tools available to collect that data, there is no legal basis to apply the precautionary principle.
18. Mr. @jsaideepak submitted that environmental jurisprudence strikes a distinction between the precautionary principle and the preventive principle. The former is applied when it is not possible to obtain data, the latter is applied when there is data demonstrating harm
19. Mr. @jsaideepak submitted that given that there has been no effort to obtain data with respect to the pollution caused by Diwali, which is possible to obtain, the case does not warrant the application of precautionary principle
20. Mr. @jsaideepak placed before the Court a document issued by the UN which captures the various definitions of the precautionary principle to support his argument.
21. @jsaideepak then submitted that in the context of an industry which is admittedly heavily regulated under the Explosives Act and the EPA, there was no need for a blanket ban when it is possible to regulate further.
22. @jsaideepak submitted that imposing a blanket ban would effectively mean that the State has admitted that it lacks the ability to regulate an industry despite the existence of a regulatory mechanism.
23. Mr. @jsaideepak submitted that the existence of a regulatory mechanism itself points to application of reasonable restrictions under Article 19(6), which precludes the possibility of a blanket ban.
24. Mr. @jsaideepak then submitted that shockingly in none of the three orders passed in November 2016, September 2017 & October 2017 there is even a whisper of the rights of individuals under Article 25(1) to celebrate the festival in accordance with their faith & traditions
25. Mr. @jsaideepak submitted that it is indeed surprising that the practice of bursting crackers has been reduced to a mere merry-making activity when in fact it is a ritual with a clear scriptural basis.
26. Mr. @jsaideepak placed before the Court a compilation of texts to demonstrate that the ritual of bursting firecrackers is not a recent phenomenon but scripturally prescribed to light up the path for the spirit of ancestors, which is similar to the lantern festival in China.
27. Mr. @jsaideepak submitted that in light of the scriptural basis of the ritual, it cannot be dismissed as superstition and is protected by Article 25(1).
28. Mr. @jsaideepak further placed before the Court a compilation to demonstrate that while the reasons for celebration of Diwali may vary across Indic communities, the festival is nevertheless common to several traditions and goes by several names.
29. Mr. @jsaideepak therefore submitted that by imposing a blanket ban on bursting firecrackers without a scientific basis in the name of precautionary principle would be to paint a target on the back of Diwali, instead of addressing the central issue- pollution
30. Mr. @jsaideepak submitted that being someone who himself has a history of respiratory issues, it cannot be argued that all other considerations must be ignored.
31. Mr. @jsaideepak submitted that if SC could take the position in the case of the Sardar Sarovar Dam that development can wait & displaced people must be compensated, it must apply the same logic to 5 lakh ppl who are directly & indirectly employed by the fireworks industry.
32. Mr. @jsaideepak submitted that the case calls for balancing of rights of manufacturers under Article 19, religious rights of individuals under Article 25(1) and the right to breathe clean air under Article 21.
33. Mr. @jsaideepak further submitted that a blanket ban on fireworks would be an extreme and disproportionate response to an already regulated industry.
34. Finally, Mr. @jsaideepak submitted that the issue of pollution requires a holistic and comprehensive approach to the address the high baselines of pollution in NCR instead of treating ban on fireworks as the silver bullet.
35. Upon conclusion of his submissions, Justice Ashok Bhushan enquired from Mr. @jsaideepak his name and asked him to file his Written Submissions capturing his arguments.
36. The next date of hearing in matter is August 28,2018.
