Mass defiance of Supreme Court ban on fireworks shows how judiciary puts itself in peril due to overreach

The Supreme Court ban on crackers during Diwali except for a two-hour window between 8 and 10 pm has been flouted across the country. Revelers were seen bursting crackers (including noisy ones) well past midnight. Real time tracking on social media and detailed reportage by traditional media indicates that Indians across the length and breadth of the country paid scant regard to the judgment delivered by the highest court of the land.

File image of Supreme Court of India. PTI

File image of Supreme Court of India. PTI

In Delhi, violations were reported from different areas including Anand Vihar, ITO, Jahangirpuri Mayur Vihar Extension, Lajpat Nagar, Lutyens Delhi, IP Extension and Dwarka (among others) and in the NCR as citizens burst crackers with gusto. India Today reported “ear-splitting fireworks” being put up for sale at Modinagar and Farrukhnagar warehouses in Ghaziabad district.

In Kolkata, according to reports, pollution on Wednesday was worse than in Mumbai or even Delhi as revelers threw Supreme Court guidelines to the wind and burst high-decibel firecrackers with gay abandon. Tamil Nadu Police registered over 2,100 cases and made 650 arrests against those who burst crackers outside the deadline. Similarly, the SC ruling made little impact on Hyderabad where most residents started fireworks from dusk and continued late into the night.

It is easy to blame the administration or law enforcement for the pickle, but ultimately pointless. Mass-scale open defiance of an apex court order is worrisome. It raises deeper questions about unimplementable rulings and the deleterious effects of judicial activism.

The key question is this: Can law force a change in society’s religious and cultural mores (unless the practices represent social evils)? It is also worth pondering whether in seeking to usurp the role of the executive and the legislature and govern by legal decree, the judiciary is at risk of lowering its prestige by making itself vulnerable to defiance, criticism and even ridicule. The separation of powers in a democracy is designed to ensure that elected representatives do the business of governance at the risk of getting ousted by the people in case of non-performance.

When the judiciary—that is not accountable to the people—intrudes upon the domain of the executive and legislature, makes laws and tries to govern, it does an inadvertent trade-off with its moral authority. All problems cannot be fixed through judicial intervention. Some are made worse.

To recall, the Supreme Court order imposed certain conditions on selling, purchase and bursting of firecrackers: a tradition among a large number of Indians, not just Hindus. The top court’s judgment also covered the types of crackers allowed or disallowed. Series crackers (called laris) were banned, “green crackers” were permitted in Delhi and NCR, but since no one had any idea about what these were, the order caused more confusion than clarification.

Some traders in Delhi reportedly placed firecrackers inside vegetables (mooli phuljhadi, pyaaz chakri) to mock the Supreme Court’s ruling. Judiciary’s activism didn’t end here. The Supreme Court also tried to encourage community bursting of crackers in a designated area and asked the central and state governments to identify spaces for it.

Banning of crackers, of course, isn’t the only instance of judicial overreach. We have seen similar instances of intervention in Sabarimala verdict where the learned judges tried to rationalise faith armed with their codes of morality and equality. The on-ground resistance against court order on Sabarimala cannot be attributed to political maneuvering alone. Politics cannot whip up passion if there’s no popular support.

Intrusions into matters of national security were witnessed on the recent Supreme Court order asking the Centre to submit all “strategic and confidential” details of the Rafale contract to the apex court within a period of 10 days. One wonders whether the learned judges are well-equipped to assess the technical details of the deal and ascertain anomalies, if any, or take informed decisions on the proficiency of the fighter aircraft and the potency of its weaponry.

Major General Mrinal Suman (Retd), who retired from the Indian Army in 2003, wrote in Swarajyamag, “Courts should come in only when the prima facie case exists of any wrongdoing and not on the basis of vague and concocted allegations… the judges are not even sure as to what they want to ascertain. Initially, they wanted to know only about the procedure followed but changed their mind within 10 days. Now they want the cost breakdown with justification. At this rate, they will soon demand to vet the complete field trials process as well. Is this the task of judiciary to decide which weapon system the country should buy and what should be the fair and reasonable price for the same?”

Such interventionism exacts a heavy price. Judiciary’s encroachment tampers with the division of powers and weakens the structure of the State. But it does more. The greatest harm is caused to the judiciary itself. Laws are enforced by the State, but such enforcement is not merely a matter of implementation by force. It is incumbent on compliance by citizens. That compliance recognises the moral authority of the judiciary in passing verdicts. Judges’ views are considered sacrosanct by people not just because there is a danger in non-compliance, but also because people want to comply. Judgments that seek to force a change in religious, socio-cultural or socio-economic issues end up challenging the compliance. The result is evident. Verdicts are subjected to political wrangling or open defiance and it cannot hold good portends for the judiciary.

As former Supreme Court judge Markandey Katju wrote on Supreme Court’s ‘unimplementable orders’ on Facebook: “I am abroad, and I see that the time in India is 11.35 pm. (I won't tell the time here because then you will locate where I am). I telephoned a lady in Delhi to wish her Happy Diwali, and she told me crackers are still bursting all around. I said what about the Supreme Court judgment which prohibited bursting crackers after 10 pm. She laughed, and said, “Who cares for Supreme Court orders?”

Such overreach also gives rise to what is called the Streisand Effect. Social media is awash with accounts of citizens who have never been enthusiastic about bursting crackers till Supreme Court expressly forbade them from doing so except within the deadline. If the apex court sought to force people into compliance, it likely achieved the opposite. The spike in instances of non-compliance was as much a resolve to continue with tradition as open defiance of a ruling that many interpreted as an intrusion upon their liberty. It became an expression of dissent.

A large section of the media is interpreting the defiance as an instance of cutting off the nose to spite the face. They point out that bursting of crackers will worsen the already wretched pollution levels of Indian cities, especially Delhi, and this logic alone should be enough to enforce the ban. This view seeks to justify judicial interventionism in this context. But this is a flawed argument.

The causal effect relationship between deadly pollution in Delhi and bursting of firecrackers in Diwali is contested and inconclusive. Exhaustive studies such as the one done by IIT Kanpur, which submitted its report to the Delhi government in 2016, indicated that pollution levels are incumbent on a host of factors such as “secondary particles (25-30 percent), vehicles (20-25  percent), biomass burning (17-26  percent), MSW (municipal solid waste) burning (8-9 percent) and to a lesser extent soil and road dust” in winter and “coal and fly ash (26- 37  percent), soil and road dust (26–27 percent), particles (10-15  percent), biomass burning (7-12 percent), vehicles (6-9  percent) and MSW burning (7–8  percent)” in summer.

Pollution in India’s urban spaces are a complex phenomenon that should be solved through an integrated, long-term approach that must include all stakeholders. Band-aid solutions will likely fail and banning of crackers through legal diktat may turn counterproductive. The larger question, however, pertains to the judiciary’s penchant for issuing unimplementable orders. As Katju points out, “Which section of the IPC is violated if young people burst crackers after 10 pm?”

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Updated Date: Nov 08, 2018 20:35 PM

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