Supreme Court flip-flop: What is the logic of imposing a ban on firecrackers for 22 days
Supreme Court flip-flop: What is the logic of imposing a ban on firecrackers for 22 daysET CONTRIBUTORS|Updated: Oct 11, 2017, 01.05 AM IST By Bishwajit Bhattacharyya
A ban on November 11, 2016. Relief on September 12, 2017. The ban reimposed on October 9. Relief to be restored on November 1. That is how the Supreme Court has dealt with the sale of firecrackers in Delhi. So far. What happens after November 1 is anybodyâs guess.
Justice Kawdoor Sadanada Hegde of the Supreme Court, in his landmark dissenting opinion in the judgment of âITO vs Nadarâ in 1968 had ruled that âthe decision of this court should not be overruled excepting under compelling circumstancesâ¦ every time this court overrules its previous decision, the confidence of the public in the soundness of the decision of this court is bound to be shakenâ¦ in law finality is of utmost importance.â
The law declared by the Supreme Court is binding on all courts within the territory of India under Article 141 of the Constitution. But in 1955, the Suprem e Court in the âBengal Immunityâ case interpreted that the word âcourtsâ in Article 141 does not include the Supreme Court itself. Since then, the apex court has freely exercised the right to reconsider its own decision.
There is also the legal doctrine of âstare decisisâ, or to stand by things decided. This is nothing but a doctrine of precedent, which now needs to be followed.
It promotes predictable judicial decisions based on precedent. The court must adhere to its own precedent, unless compelling and extenuating circumstances have been shown to exist In the case of the firecracker ban in Delhi, the objective of the Supreme Court has been laudable â" to arrest the deterioration of air quality. Yet, a total and permanent ban is thought to be too radical a step. Instead, a gradual approach has been opted to yield better results and to cause âminimum hardshipâ to all concerned. One should also note that this ban on firecrackers sale in Delhi has been ma de applicable only till November 1, the date on which the order, dated September 12, permitting the sale of crackers would stand revived.
It is difficult to grasp the logic of imposing a ban for 22 days and allowing the sale of something considered harmful thereafter. It is, perhaps, also not within the province of the court to order an experiment on this score. Such experiments, observations and inferences are best left to the executive. For, how will the court monitor the results? How will it ensure enforcement of its order of October 9 temporarily banning cracker sales? How will the court ensure that the police does not abuse Section 188 of Indian Penal Code â" âDisobedience to order duly promulgated by public servantâ?
How can it be ensured that heaps of firecracker stocks that traders and shopkeepers are holding are not simply âgifted awayâ? Sale of firecrackers has been momentarily banned, but not their use. Besides, this may also induce generation of blac k money.
Already, there have been reports of approximately Rs 500 crore worth of business of firecrackers in Delhi. What happens to those who are holding stock with a valid licence as on October 9? Perhaps a regulatory direction would have been more apt than a blanket ban on sale.
Although the Supreme Court has not yet declared any law pertaining to the bursting of firecrackers, the interim order dated October 9 raises the larger issue of judicial overreach and the doctrine of âstare decisisâ. The well-intended order with a laudable objective ought to have considered the matter across India and not confined to Delhi. Delhi may be worst hit by pollution, but the uncontaminated air is the need for every citizen.
As for the larger issue of flip-flops by the apex court, the Supreme Court may declare that a law declared by it is binding on itself. It could set up a Constitution Bench for this purpose.
(The writer is former Additional Solicitor General of I ndia) Read more onSupreme CourtIndian Penal CodefirecrackersConstitutionBlack Moneyban
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