Judiciary sets off fireworks of overreach with the judgement on bursting firecrackers

The judgement despite resolving the key debate that right to life supersedes the right to practice a religious belief puts in front a larger question of how we intend to fight the menace of pollution in our mega-cities and the answer to this cannot come from the Courts.

This may be the third article this year which is trying to reiterate the problems associated with judicial overreach. But then again, what can one do if the saga of judicial overreach refuses to die down. There is a reason why we have a doctrine of separation of power; paramount of them being the need to ensure there is a strong system of checks and balances in place while the second one being to ensure that each institution can specialize within its own field of work and discharge its duties with utmost efficiency.

At the onset, it needs to be clarified that I have enormous respect for Judiciary as an institution and I believe that they attempt to make decisions with the best interests of the society in mind.

The problem, however, is that not all such decisions take popular consensus into consideration. This lack of consensus becomes a contentious issue when decisions are taken on governance matters as the will of people is not represented during the judicial process of decision making. The current article is with respect to the latest judgment that aims at reducing pollution in Delhi by capping the time duration for the bursting of firecrackers in Delhi.

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Let me first state that I am against the extensive use of firecrackers during Diwali celebrations as my great-grandfather lost his life due to the rampant pollution that was caused by them. But, over time firecrackers became an integral part of the cultural celebration of Diwali so it must be respected. A lot of sentiment is associated with the practice of bursting crackers in Diwali so capping the time for this seems to be an order that should have ordinarily come from the executive and not the judiciary.

The good thing is that unlike last year, this time the courts didn’t outrightly ban firecrackers like last year. Last year when courts completely banned the sale of firecrackers, traders and the entire economic ecosystem around the economy was severely affected as the traders didn’t expect such an outcome and thus, they could not adjust their inventories. The least, I expected was that this year around Diwali, they’d be certain regulations that would be put in from the start of the year so that traders can form rationale demand projections before adjusting their inventories. Unfortunately, that didn’t take place while what we got is a two-hour window for the bursting of crackers.

Let me ask a few quick questions, will just banning firecrackers solve Delhi’s pollution problem? It will surely help a bit, but it will come at the cost of hurting the cultural sentiments of a significant proportion of people. That said, another major issue worth stressing upon is that the problem of pollution in Delhi requires a concentrated approach towards the improvement of air quality, water quality and cleanliness in India. This approach would require a concentrated approach from all stakeholders, something that only the Delhi Government can initiate and not the Courts.

A similar attempt to address Delhi’s pollution problem was done by the Courts when they ordered that all DTC buses be converted into CNG, however, the impact of such an intervention was only short-term as Delhi’s pollution problem only worsened over the years. This demonstrates why judicial action is difficult to have an impact when it is trying to address an executive or legislative matter.

The recent judgment by the court somehow doesn’t adequately capture the institutional constraints of the executive as it puts the onus to ensure no crackers are burst beyond the desired hours on to the police department. It reads that the Station House Officer (SHO) would be personally liable should there be a violation. This has severe problems as how does an SHO ensure the compliance with Court order as she/he does not have the adequate resources to monitor their entire area.

The judgement despite resolving the key debate that right to life supersedes the right to practice a religious belief puts in front a larger question of how we intend to fight the menace of pollution in our mega-cities and the answer to this cannot come from the Courts.

It is about time the Delhi Government takes cognizance of the need to find a solution to the chronic problem of pollution that the citizens face. Mere photo-ops like Odd-Even are not the long-term solution and there’s an urgent need for an executive intervention to ensure that there’s no governance gap that needs to be filled by a judicial intervention.

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