The extension of the Supreme Court’s powers to law-making instead of law-interpretation continues unabated, as the latest decision banning the sale of fire-crackers in the National Capital Region (NCR) this Diwali suggests.

A three-judge bench headed by Justice A K Sikri reinstated the ban on the sale of crackers until 1 November, barely four weeks after the court had relaxed the ban in an order dated 12 September, claiming that “continuing the suspension of licences (for selling fire-crackers) might be too radical a step to take for the present.” The 12 September order had relaxed the ban, originally instituted by a judgement of 11 November 2016, by acknowledging that “a graded and balanced approach is necessary that will reduce and gradually eliminate air pollution in Delhi and in the NCR caused by the bursting of fireworks.”

Let’s acknowledge that the problem of pollution is very serious in Delhi and the NCR. Let’s also, for the moment, set aside the anger in some quarters that the courts feel free to interfere only in Hindu religious customs, and not those of the minorities, where too such interventions could well be justified.

But how is it the Supreme Court’s job to decide on what the law should be on the sale or use of firecrackers, when it should be focused on telling the government merely to implement the laws already on the statute book on air pollution. If there is a flaw in implementation, or if there is a gap in the law, the court can direct the government to close the latter and implement the former. It has no business making the law, and pretending that it can do so. The courts have used every argument, every gap in the Constitution, to inject themselves into law-making and rule-making.

Consider this statement contained in the judgement. “It cannot be denied that there are adequate statutory provisions, aid whereof can be taken to ban the sale of these crackers. It is one of the functions of the judges, in a democracy, to bridge the gap between law and the society. Here, fortunately, there is no such gap and the Court is (sic) only become facilitator in invoking the law to fulfil the need of the society.” (Italics mine)

Which part of the Constitution says that it is the court’s job to serve as a bridge between “law and society”? If anything, this should be the job of politicians or law-makers, not the judiciary. At best, the courts can bridge gaps in the law, but as the statement here itself acknowledges, the law already exists, and it is merely one of implementing it properly.

Or consider another statement contained in the judgement, which quoted from the 2016 judgement in the same case. “The Court also reminded itself of the ‘precautionary principle’ which 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.” (Italics mine)

The “precautionary principle” is a dangerous precipice. It means if a judge sniffs the air and finds it toxic, he can issue orders without much scientific evidence.

In the 12 September modification or the November 2016 ban, the court ordered relaxations because it did not have the data to link Diwali firecrackers to the rise in pollution levels in NCR. It said: “From the material before us, it cannot be said with any great degree of certainty that the extremely poor quality of air in Delhi in November and December 2016 was the result only of bursting fireworks around Diwali. Certainly, there were other causes as well, but even so the contribution of the bursting of fireworks cannot be glossed over. Unfortunately, neither is it possible to give an accurate or relative assessment of the contribution of the other identified factors nor the contribution of bursting fireworks to the poor air quality in Delhi and in the NCR. Consequently, a complete ban on the sale of fireworks would be an extreme step that might not be fully warranted by the facts available to us.” (Italics mine)

In short, evidence or no evidence, we need to be seen to act. And since there is lack of evidence, we will relax our ban. How arbitrary can the courts become?

Now consider the main justification why the Sikri bench decided to over-rule the 12 September relaxation and reimpose the ban during Diwali, going upto 1 November. “We are of the view that the order suspending the licences should be given one chance to test itself in order to find out as to whether there would be positive effect of this suspension, particularly during Diwali period. Insofar as adverse effects of burning of crackers during Diwali are concerned, those have been witnessed year after year. The air quality deteriorates abysmally and alarmingly and the city chokes thereby.” (Italics mine)

Thus, the court finds its justification enough to ban something to check if a ban works! It is experimenting with the ground impact of its own orders. Is that any part of its constitutional mandate?

The Supreme Court is setting a dangerous precedent, and is also setting itself up for supreme disrespect for the law.