In dealing with the problems of social and economic policies, the social sciences consider only one question: whether the measures suggested are really suited to bringing about the effects sought by their authors, or whether they result in a state of affairs which – from the viewpoint of their supporters – is even more undesirable than the previous state which it was intended to alter.
–Ludwig von Miss, Omnipotent Government
In India, we relate power with abuse, and rightly so – for government and its adjunctive machinery has abused power for as long as one can remember. Usually this abuse of power is justified on grounds that “it is for our own good” and that state has a “protective role” to play. Taking that trend forward, in yet another case of judicial over-reach and in vulgar display of much abused trend of “judicial activism”, the Supreme Court, via a court order, in reference to a writ petition (Arjun Gopal and Others Versus Union of India and others) suspended sale of firecrackers in the NCR. A Bench of Justices A.K. Sikri, A.M. Sapre and Ashok Bhushan reverted to its November 2016 decision to suspend sales of firecrackers “to test itself to find out whether there would be a positive effect of this suspension, particularly during Deepavali period.”
It must be noted that, Justice Madan B. Lokur and Deepak Gupta had already banned few chemicals used in manufacturing fireworks earlier – including antimony, lithium, mercury and arsenic. Post this ban, manufacturers shifted to substitutes like Sulphur, Aluminum powder and charcoal to produce light effects. Tamil Nadu Fireworks Association Amorces Manufacturer’s Association – which produces most of fireworks says none of these chemicals – banned by court are used anymore.
Supreme Court observed:
“…However the court hastened to add that harmful effects of fireworks on the ambient air and the lungs, eyes and ears of people was also an acknowledged fact.”
It further observed:
“…Though much can be argued as always about the significance and even joy of bursting fireworks, but at the same time (sic), 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…”
“…Lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”
In this judgment, the judges have not relied on any concrete data, nor cited any source which can conclusively prove, beyond doubt, that firecrackers cause such “harmful effects” as to warrant their ban. On the contrary, no standards, so far, have been laid down by the Central Pollution Control Board (CPCB) with regard to air pollution caused by the bursting of firecrackers. While the court has directed the CPCB to prepare a report of the harmful effects of the materials which are currently being used in the manufacture of fireworks, the ban itself is arbitrary, though it is justified as being in the “public interest”. Relying on perception, sans numbers and data is not just shoddy but dishonest.
The quality of air of Delhi is already one of the poorest in the world – and firecrackers make little contribution to its sorry state. While it is certain that levels of air pollution will rise on the eve of religious festivals like Diwali, Delhi’s air pollution levels have a myriad of other contributing factors – including the nuisance of stubble burning from neighboring states, and vehicular pollution, among others.
The problem with subjective clauses of Explosives Act, 1884
India continues to rely on an antiquated and anachronistic legal framework that was setup by the British. Rule 118 of the Explosive Rules, 2008 gives arbitrary power to Government to suspend or cancel license if it is against the “public interest”. If there is one conscripted phrase in law that has been most viciously and widely abused by Government and its administrative machinery, it is “public interest”. The will of the “public interest”, if it is not chastened by reason, resembles administrative tyranny. Decisions in “public interest” should necessarily be informed by inclusive dialogue – which is the most effective way of arriving at a rational consensus for the common good. Rather, the nonsense spouting judges, overcome by their own irrational exuberance pandered to their own mobilized emotions. While it cannot be contested that India’s legislative and executive organs of government are incompetent, that alone cannot justify such judicial overreach.
Usually, with such judicial over-reach, we encounter two sets of vociferous political communities, clamoring for our attention: On left and right of the political spectrum, though none the wiser. Till recently, I used to believe that it would require total suspension of reason and logic to be a supporter of such groups, but I have discovered that this is an ever-growing tribe. While the left leaning statists believe that such orders are justified in some cases – à la ban on sale of firecrackers, they get paradoxically offended when administrative uses this same defense of “public interest” to ban something they do not like – like food items or bars on freedom of expression. Similarly, right leaning “experts” see such attempt as a “war” on their culture and traditions, and seek that such bans be placed on “other” religions and cultures too. This trend outlines that a big section – on left and right of political spectrum – are ideologically stagnated and mentally bankrupt. The template is dated, but discourse is not.
Each time, with such decisions, the Supreme Court bares the pathologies of the constitutional framework of India – where the Supreme Court that was supposed to be a guardian of the constitution, has become a predator, usurping power and ceding to populism.
Thankyou(TM) is a responsible organization working towards building a waste-free world. Our approach towards solving the problem of waste and pollution is driven by innovation and community building. We empower people at the grass-root to bring change and to take responsibility of their actions. Our approach for behavioral change at the grass-root is incentive driven. Here’s how:
1. Bans are ineffective.
At best bans are cathodic. Bans are a lazy and incompetent response to a problem. After bans are imposed, the demand is met via black channels  – which are even more dangerous and undesirable. To advocate a ban is to exhibit one’s rapt stupidity or ignorance of Economics 101 – or both. Escapades of activism by the courts and by the administration make it imperative for us to be ever vigilant to protect our rights and liberty. At the time of publishing of this article, Delhi’s air was still dangerously polluted – which conclusively proves that the fireworks ban did nothing to solve the problem.
2. Second hand smoke is not as harmful as once thought
As the old scientific adage goes – correlation does not mean causation. The Journal of the National Cancer Institute published a study – which finds no significant relationship between passive smoke and cancer.
Note: To read the cited study, click here. 
3. A move to hurt small traders
Although, the matter was sub judice for sometime, the court’s order came at an inopportune time, hurting small traders who had stocked firecrackers to meet demand on religious festivals. By doing so, the apex court has set itself up for non-compliance of its order. As the common adage goes “The road to hell is paved with good intentions”. While I have no doubt, that intentions of apex court were in the “public interest”, the pronounced ban created a dissonance among even prudent and law-abiding citizens. We had reports that show many small traders broke the ban to recover their money .
4. Regulations over bans
Reasonable regulations are preferable to blanket bans. The government should create a regulatory framework that incentivizes entrepreneurs to create firecrackers that produce pleasing light effects, without use of harmful chemicals – such as Sulphur and Potassium Perchlorate. This can be coupled with a sensitive campaign strategy to educate consumers.
5. Innovation and open markets
Markets offer alternatives. Markets enable optimal use of resources that have alternative uses. Innovative entrepreneurs can solve the problem of air pollution. What decades of government imposed bans and over-regulation could not achieve, an innovative game app – Pokemon Go – achieved in months – giving people the ability to make healthier lifestyle choices and getting them to exercise. Similarly, innovative businesses like Uber and Lyft solved the problem of DUI (Driving Under Influence) and road-accidents (not to mention the immense relief from unionized taxis) which decades of government rules and regulations failed to achieve. By placing a blanket ban, that pronounces a hitherto legal activity illegal does not solve the problem. As the great Austrian economist Ludwig von Mises wrote, “Private ownership means the proprietors determine the employment of the factors of production. Where it is absent, there is no question of a market economy.”
Not to be outdone, a straggling posse of “experts” have pitched in – for and against – and as this debate drags on, inconclusively, we must heed the timeless advice of a great Austrian economist:
The economist does not substitute his own judgment about the desirability of ultimate ends for that of his fellow citizens. He merely asks whether the ends sought by nations, governments, political parties, and pressure groups can indeed be attained by the methods actually chosen for their realization.
–Ludwig von Miss, Omnipotent Government
Editor’s Note: This article was first published in Thankyou’s blog.