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ARJUN GOPAL AND ORS. V. UNION OF INDIA: A CRITIQUE

Author: Sagarika Swapnil, Legal Associate at SVS Attorneys, New Delhi

Co-author: Raj Krishna, LL.M. from NLIU Bhopal


INTRODUCTION

New Delhi is one of the most polluted cities in the world. During the winter season i.e., between October- December the situation becomes even worse. Due to both natural and man-made causes the level of air pollution in Delhi reaches to an all-time high in the winter season.[1]


Over a period of time the Supreme Court and the National Green Tribunal have tried their best to curb this menace. Still the quality of air during the winter season has not improved. This is one of the cases wherein the Apex Court has intervened to ensure that the level of pollution remains low during the winter season in Delhi.[2]


The writ petition was filed by the fathers of some newly born infants who were concerned about the health of their children. On the eve of Diwali, the level of air pollution rises to a very high level which can cause a lot of health hazards to everyone especially children who are the most vulnerable section. As a result, the petitioners filed a writ petition before the Supreme Court praying for clean and healthy environment for their children.[3]


CONTENTION OF THE PARTIES

ARGUMENTS OF THE PETITIONERS

The petitioners argued before the Supreme Court that due to the bursting of fire crackers on the eve of Diwali, the level of air pollution rises to a very high level. Due to this the health of the citizens especially children are at risk. Furthermore, air pollution is causing asthma, coughing, bronchitis, retarded nervous system breakdown. As a result, it is important that the Court imposes a restriction upon the burning of fire crackers because the government authorities have failed to take any concrete action.On the aspect of fundamental right to carry business the petitioners argued before the Apex Court that no such right can be claimed by the respondents because principle of res extracommercium would apply in this case.


Furthermore, the Petitioners relied upon the cases of Vellore Citizens Welfare Forum v. Union of India and A.P. Pollution Control Board v M.V. Nayadu to support their case.[4]


ARGUMENTS OF THE RESPONDENTS

The respondents argued before the Supreme Court that there was no sufficient evidence to prove that the burning of fire cracker is directly responsible for the rise in air and noise pollution in Delhi. It was further argued by the respondents that the cracker industry generates revenue of close to 6000 crore rupees. Furthermore, it also gives livelihood to nearly 5 lakh families. A blanket ban on firecrackers will ruin the livelihood of so many families. As a result, it is necessary that a balanced approach is adopted by the Apex Court.[5]


CRITICAL ANALYSIS OF THE JUDGMENT

Justice Dr. A.K. Sikri adopted a balanced approach in order to strike a balance between Articles 21 and 19(1) (g) of the Indian Constitution. It is because if a blanket ban was imposed upon the sale of firecrackers, then it would adversely affect the livelihood of lakhs of family. As a result, the introduction of the green crackers could be considered as a balanced approach of the Supreme Court.

The Supreme Court vide this order has once again given preference to practical sensibility. In a case like this the public sentiments are very high. The Court realized that their judgment can draw ire of the majority of this country. But still they adopted a balanced approach in deciding the case. Under the precautionary principle, the burden of proof that a particular act is not polluting the environment lies with the polluter. However, in the meantime the Court realized that they need to strike a balance between Articles 21 and 19(1) (g). It is because if a blanket ban is imposed upon the sale of firecrackers, then it would adversely affect the livelihood of lakhs of family. Thus, the introduction of the green crackers could be considered as a balanced approach of the Supreme Court.[6]


Subsequently on 26th November, 2019 the Supreme Court in its order directed “the setting up of quality control units by manufacturers to ensure that the variants of crackers made by them are in accordance with prescribed formulations.”However, in March 2020, one of the petitioners submitted before the Supreme Court that some of the manufacturers were manufacturing firecrackers using materials which have been expressly prohibited by the Supreme Court. As a result, the Apex Court observed that “if such allegations were true then the respondent manufacturers would be guilty of contempt of the court’s orders, and asked the Central Bureau of Investigation, Chennai to make detailed investigations into the violations.” Hence it will be interesting to see that how the Apex Court would get its judgment implemented and ensure that the citizens of country get fresh air to breathe.[7]

[1] Yogini Oke, Supreme Court on Air Pollution: The Case of Green Firecrackers, Vidhi Legal Policy (Nov. 1, 2022, 8:00 a.m.), https://vidhilegalpolicy.in/research/supreme-court-on-air-pollution-the-case-of-green-firecrackers/ [2] Id. [3]Arjun Gopal and Others v. Union of India and Others (2019) 13 SCC 523 (Paragraph 1). [4]Arjun Gopal and Others v. Union of India and Others (2019) 13 SCC 523 (Paragraph 17). [5]Arjun Gopal and Others v. Union of India and Others (2019) 13 SCC 523 (Paragraph 18). [6]Yogini Oke, Supreme Court on Air Pollution: The Case of Green Firecrackers, Vidhi Legal Policy (Nov. 1, 2022, 8:00 a.m.), https://vidhilegalpolicy.in/research/supreme-court-on-air-pollution-the-case-of-green-firecrackers/ [7] Id.

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