SC cracker ban: Judiciary is transgressing into executive and legislative domains
As environmentally conscious citizens, no one opposes the idea of taking steps to improve the quality of air; but is it worthwhile for the Supreme Court to personally invest time and monitor such activities, considering that a specialised forum i.e., National Green Tribunal has been created for addressing environmental concerns?
The judgment delivered on October 9 by the Supreme Court banning the sale of fireworks in the Delhi NCR region till November 1 in order to keep a check on the air pollution caused by bursting of fire crackers is yet another example of how the judiciary is transgressing into the boundaries of the executive and legislative limbs of the State.
The court has indicated in their order that it wants to test the effect of the ban on air quality after Diwali. The order appears to be flawed inasmuch as there are government-funded organisations operating, which are already engaged in testing air quality on a regular basis and suggesting methods to contain the same. In that case is it appropriate for the apex court to step in the shoes of the executive and take matters in their hands? Is this not a case of judicial overreach in the guise of judicial activism?
As environmentally conscious citizens, no one would oppose the idea of taking steps to improve the quality of air; but is it worthwhile for the Supreme Court to personally invest time and monitor such activities, considering that a specialised forum i.e., National Green Tribunal has been created for addressing environmental concerns? Has the Supreme Court balanced the various interests, which are likely to be affected by such an order? Also is the pollution being generated from firecrackers the concern of Delhi NCR alone? Are other states not affected by it? If Delhi NCR is not the only area affected by pollution from firecrackers then should the apex Court not be factoring in all the areas and places outside the Delhi NCR wherever the sale of firecrackers is occurring?
The said order comes close on the heels of another order of the Supreme Court, which was passed on September 12, in which the ban that had been in place since November 2016 was relaxed while giving directions to the Government to check the environmental hazards caused by Diwali firecrackers in Delhi. According to the directions of the apex court, a highly specialised committee headed by the chairperson of the Central Pollution Control Board (CPCB), and consisting of officers at the appropriate level from the National Physical Laboratory, Delhi, the Defence Institute of Physiology and Allied Sciences, Delhi, the Indian Institute of Technology Kanpur, State Pollution Control Boards, the Fire Development and Research Centre, Sivakasi and Nagpur and the National Environment Engineering Research Institute (NEERI) have been tasked with submitting a report on or before December 31, 2017.
In view of this it is clear that the Supreme Court was seized of the matter and had already given directions less than a month ago to the government and appropriate authorities to take steps. If this extensive exercise has already begun, then the apex court could have just waited for the report and taken steps to act appropriately after the report is tabled. The need of the hour is that the judiciary must introspect on the best use of the judicial time on their hands.
Lately a lot of debate has arisen on the issue of judicial overreach in light of a string of judgments delivered by the apex court, such as the ban of the sale of liquor within 500 meters of highways, the mandatory standing up during National Anthem being played in cinema halls, etc. The debate revolves around what constitutes the role of the judiciary and whether on occasion the roles of the civil state apparatus is being inadvertently usurped.
Needless to say, the judiciary is under immense pressure and despite their challenges is doing a commendable job of upholding interests but restraint on occasion could go a long way and ensure that justice is being done as envisaged under the Constitution.
Vaibhav Joshi is a lawyer practicing in New Delhi
The views expressed are personal