THE ADVOCATE V O L . 7 5 P A R T 5 S E P T E M B E R 2 0 1 7 795
Bench and the Bar also celebrate in the same way. But does that justify
the continuance of this manner of celebration, when the quality of air in
the region is so poor and injurious to health and well being and is destroying
essential components of the freedom to live a healthy life? In any
case till the quality of air improves we do not pronounce finally on this
question at this stage.
16. It is however certain that, now, when the Air Quality Index in the NCR
is abysmally and threateningly severe, allowing free trade in fireworks
which is a major source of noise and air pollution and is causing immense
harm to the lives and health of citizens, and allowing availability of such
fireworks or explosives constitutes a serious invasion of the Freedoms
and Rights conferred on citizens by Part III of the Constitution of India.
Such an invasion is all the more deleterious towards the rights and freedom
of the poor and the underprivileged who must breathe such air without
any means of protecting themselves.
17. There is no doubt that protecting citizens (including those who use
fireworks) by making these unavailable in the market would require the
suspension of trade of a miniscule section of the population. Maybe they
have acquired stocks for sale or obtained credit for their business. We are
however of the view, that balancing the vital interests of the vast majority
of citizens against the commercial interests of a few, the balance must
heavily tilt in favour of citizens in general.
18. We are aware that we are only issuing interim directions, and much is
left to be heard, discussed and said about the rival claims and contentions.
What is however indisputable is that the harmful effects of fireworks on
the ambient air and the lungs, eyes and ears of people. What is also obvious
is the extreme nuisance, and noise the fireworks cause to citizens particularly
the ailing and the aged. Therefore, though much can be argued as
always about the significance and even joy of bursting fireworks.
But at the same, prima facie, a just constitutional balance, must overwhelmingly
prioritize the harmful effects of this hazardous air on present
and future generations, irreversible and imperceptible as they are, over
the immediate commercial constraints of the manufacturers and suppliers
of fireworks. Secondly, this court recognizes that the duty to ensure a
healthy environment not only falls on the State in terms of Article 48-A
of the Constitution of India but also on all citizens under Article 51A (g)
of the Constitution.
This Court has previously held that fundamental duties in Part IV A of
the Constitution could be a guiding factor in testing the reasonableness
of restrictions under Article 19(2)-(6) of the Constitution of India See
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534;
para 58 The principle of inter-generational equity, recognized and
applied by this Court in a number of decisions, beaconing us to the health
and needs of the future generation, also favours the issuance of interim
directions. Lastly, the precautionary principle, affirmed by this court in
Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647, mandates
that where there are threats of serious and irreversible damage,
lack of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.