Diwali arrests not made under relevant green laws, say experts
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.
SAY NO TO CRACKERS: Some people caught red-handed were also booked for creating a public nuisance