Plea Moved In Supreme Court By Firecracker Manufacturers Challenging Complete Ban On Firecrackers By Calcutta HC

A Special Leave Petition has been moved in the Supreme Court challenging the order dated October 29, 2021 of the Calcutta High Court banning the use of firecrackers in West Bengal during upcoming festivities of Kali Puja, Diwali, Chatt Puja, Jagadhatri Puja, Guru Nanak's Birthday, Christmas Eve and New Year's Eve this year.

The plea has been filed by one Goutom Roy, the Chairman of an association of firecracker manufacturers called "Sara Bangla Atasbazi Unnayan Samity".

The matter is slated to be heard by a special vacation Bench of the Supreme Court comprising Justices AM Khanwilkar and Ajay Rastogi today at 11am. 

A Division Bench comprising Justices Sabyasachi Bhattacharya and Aniruddha Roy of the Calcutta High Court had ordered a a complete ban on the usage and sale of all kinds of firecrackers including green crackers throughout the State of West Bengal during the upcoming festivities.

"The State should ensure that there is no use or display or bursting of firecrackers of any type at all during the oncoming Kali Puja, Diwali celebration as well as the following Chatt Puja, Jagadhatri Puja, Guru Nanak's Birthday and/or Christmas/New Year's Eve this year. For such purpose, only wax or oil-based diyas might be used", the High Court had ruled.

The High Court had further observed that there is no existing mechanism in place to ascertain whether only "green crackers" as permitted by the Supreme Court are being used and hence had proceeded to ban the use of such green crackers as well.

"It would be an impossible task for the police and/or law enforcement agencies to ascertain the veracity of the certificates of the crackers which are being used by the general public at the time of these festivals, irrespective of the classification under which they are sold. Leaving the window open for green crackers to be used, would positively entail abundant abuse of such window and there is no mechanism in place, as mentioned earlier, to screen such abuse at this juncture, when the festive season is on the anvil", the High Court had further opined.

Opposing such a blanket ban, the plea averred that the Supreme Court in its 2018 judgment of Arjun Gopal and Others v. Union of India & Others had opined that such a complete ban would not serve the interest of justice and had thus laid down norms so as to facilitate the use and manufacture of green firecrackers in a controlled manner.

"The Hon'ble High Court of Calcutta was patently erroneous on holding complete ban on fire crackers within the State of West Bengal, when this Hon'ble Court in exercise of utmost diligence has allowed the use of green fire crackers in permissible limit across all states", the plea stated.

Referring to the case currently being adjudicated by the Supreme Court regarding regulation of firecrackers, the petitioner stated,

"This Hon'ble Court is already keeping a supervision on the issue of effect of firecrackers on the environment and has passed a series of orders in Writ Petition (Civil) No. 728 of 2015 and is pending adjudication before this Hon'ble Court. Thus, it becomes inappropriate for the High Court to take a decision of imposing a blanket ban on the sale and use of green crackers, contrary to the Judgement and order dated 23.10.2018 of this Hon'ble Court"

Furthermore, the plea alleged that the High Court had 'erroneously directed for a blanket ban on the sale and use of all kinds of firecrackers, including Green firecrackers' by choosing to not abide by 'existing judicial precedents' held by the Supreme Court.

Opining that there exists a 'prominent distinction' between green crackers and other forms of firecrackers, the petitioner contended that only few specific manufacturers have been provided with the license to manufacture green crackers in accordance with the recommendations made by CSIR-National Environmental Engineering Research Institute (CSIR-NEERI) which is a research institute governed and funded by the Government of India.

It was further submitted that the State of West Bengal had categorically apprised the High Court that Tribunals and other authorities had permitted the use of green environment friendly fire crackers in a limited manner. In this regard, the plea further averred,

"It is submitted with utmost respect that the High Court ought not to have taken a divergent view especially when the State authorities are competent enough to understand the ground reality and keeping in view the prevalent situation has permitted the use of firecrackers in a limited manner."

It was further pointed out that the Supreme Court vide its order dated September 29, 2021 had only prohibited the use of "banned fire crackers" i.e. crackers which are made from barium salt. However, by 'no stretch of imagination' did the Supreme Court impose a complete ban on use of firecrackers despite acknowledging that public health is of paramount importance, the plea stated further.

Placing reliance on the Supreme Court judgment in in the case of the Telangana Fire Works Dealers Association v. P. Indra Prakash & Ors, the petitioner stated that the Apex Court had allowed the use of green crackers in line with the directions issued by the National Green Tribunal vide its order dated November 9, 2020.

"The Hon'ble High Court failed to appreciate that the Green crackers with reduced emission by minimum 30 percent have been introduced in the local market. These are environment friendly. About 530 emissions testing certificates have been issued to fireworks manufactures for new and improved formulations meeting the stipulated guidelines of green crackers. Nearly 165 fireworks manufactures have been roped in and around 65 more manufacturers are in the process of coming on board to manufacture green crackers" it was elucidated further.

The petitioner further apprised the Court that a Raw Materials Compositional Analysis (RACE) facility has been set up in Sivakasi, Tamil Nadu to facilitate manufacturers for testing their raw materials and chemicals. It was also pointed out that the High Court had failed to consider that Covid-19 pandemic situation had drastically improved and that most of the population in West Bengal had been administered at least the first dose of vaccination.

It was also submitted that the government of West Bengal had on October 26, 2021 allowed the sale and use of green crackers, further limiting the bursting thereof, only for two hours on the day of Diwali.

Opining on the economic hardships that were to befall on the firecracker manufacturers if such a complete ban was imposed, the petitioner remarked,

"For that the Hon'ble High Court failed to consider the economic adversities that shall befall upon almost 31 Lakh people and their respective families who are directly and indirectly employed by the fireworks industry within the State of West Bengal. The impugned order dismisses the fate of those by merely making a disparaging observation that a small number of persons involved in the firecrackers business may have to suffer losses."

Case Title: Goutom Roy and Anr v. State of West Bengal