Di­wali ar­rests not made un­der rel­e­vant green laws, say ex­perts

The Times of India (New Delhi edition) - - TIMES CITY | THAT CHOKING SENSATION - Aamir.Khan2@ times­group.com

New Delhi: Delhi Po­lice ar­rested a large num­ber of peo­ple for vi­o­lat­ing the Supreme Court or­der against burn­ing the reg­u­lar fire­crack­ers dur­ing Di­wali. Cases were reg­is­tered against them un­der Sec­tion 188 of the In­dian Pe­nal Code for ‘disobedience to or­der duly pro­mul­gated by a pub­lic ser­vant’. Le­gal ex­perts, how­ever, point out other more rel­e­vant laws could have been pos­si­bly in­voked to deal with the is­sue.

Till Fri­day, 637 FIRs were reg­is­tered un­der Sec­tion 188. Some peo­ple caught red­handed were also booked for cre­at­ing a pub­lic nui­sance.

Se­nior ad­vo­cate and re­tired jus­tice B H Mar­la­palle sug­gested other IPC sec­tions could have been in­voked, in­clud­ing Sec­tion 268 deal­ing with pub­lic nui­sance, Sec­tion 278 re­lated to “mak­ing at­mos­phere nox­ious to health”, even the pe­nal pro­vi­sions of the En­vi­ron­ment (Pro­tec­tion) Act, 1986. “Po­lice should have taken re­course to th­ese,” the for­mer judge said, stress­ing also on the need to have a will to im­ple­ment ex­ist­ing le­gal pro­vi­sions rather than for­mu­lat­ing new laws.

Se­nior crim­i­nal lawyer Re­becca John, how­ever, of­fered a dis­sent­ing view. “There are in­ad­e­quate pro­vi­sions in law to han­dle an is­sue like this and per­haps that is why it re­mains a grey area and po­lice find it diffi- cul­ties in deal­ing with such prob­lems,” she said. Ac­cord­ing to John, the next step in fact could be Par­lia­ment be­ing asked to en­act pro­vi­sions to deal with mat­ters of this sort.

Sec­tion188 stip­u­lates if disobedience of a pub­lic or­der “causes or tends to cause dan­ger to hu­man life, health or safety, or causes or tends to cause a riot or affray”, then the guilty can be pun­ished with a max­i­mum of six months in jail, or a fine of Rs 1,000, or both. But ad­vo­cate Gopal Sankara­narayanan, who ar­gued in favour of the cracker ban in the apex court, said in­vok­ing just Sec­tion 188 showed po­lice's “nar­row-mind­ed­ness”. They could have ap­plied Sec­tion 19 of the Air (Pre­ven­tion and Con­trol of Pol­lu­tion) Act,1981, deal­ing with air-con­trolled zones. Since Delhi was no­ti­fied as such in 1986, the crack­ers rep­re­sented “a vi­o­la­tion of this pro­vi­sion”, he said.

Other pro­vi­sions of the En­vi­ron­ment Pro­tec­tion Act, Ex­plo­sives Rules 116, 117 and 118, deal­ing with sell­ing and trans­port­ing crack­ers with­out li­cence, could also have been in­voked, ac­cord­ing to Sankara­narayanan. “Ex­pect­ing cit­i­zens of Delhi to show re­straint is not go­ing to work and that is pre­cisely why the Supreme Court had been moved,” the lawyer said.

The cops ar­gued that cer­tain sec­tions of the En­vi­ron­ment Pro­tec­tion Act could be added while pre­par­ing the charge sheets af­ter due con­sul­ta­tions with le­gal ex­perts. Ac­cord­ing to a po­lice of­fi­cer, a case un­der the pe­nal pro­vi­sions of the EP Act could be in­voked if the cops re­ceived a com­plaint from a per­son about some­one found burst­ing a cracker.

Sankara­narayanan was dis­mayed that de­spite be­ing made aware they were “poi­son­ing their own chil­dren”, Delhi’s cit­i­zens had not curbed their cel­e­bra­tions. He praised the peo­ple of Ben­galuru, Chen­nai, Luc­know, Kolkata and Mum­bai for bring­ing pol­lu­tion the lev­els in their cities to nearly half of those recorded last year.

Photo for rep­re­sen­ta­tion

SAY NO TO CRACK­ERS: Some peo­ple caught red-handed were also booked for cre­at­ing a pub­lic nui­sance

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