Bursting of firecrackers not protected under right to religion: Retired Justice Abhay Oka

Religious practices that cause pollution or environmental harm cannot claim protection under Article 25 of the Constitution, former Supreme Court Justice Abhay S Oka said while urging citizens, governments and courts to rethink the ecological cost of festivals and faith-based customs.

"So the question is whether bursting of firecrackers or these kinds of activities that pollute rivers is protected by Article 25? According to my limited knowledge, the answer must be firmly in the negative,” he remarked during a lecture organised by the Supreme Court Bar Association tilted Clean Air, Climate Justice, and We - Together for a Sustainable Future.

Justice Oka emphasised that neither religious freedom nor popular sentiment could justify actions that endanger public health or environmental safety.

“I can’t say that on a religious festival I have the right to create pollution. I owe a fundamental duty to abide by the Constitution and to ensure that everyone enjoys their right under Article 21. When the courts deal with environmental matters, they should not be influenced by popular or religious sentiments,” he observed.

Justice Oka expressed concern over the recent amendments to the Environment (Protection) Act, the Air (Prevention and Control of Pollution) Act and the Water (Prevention and Control of Pollution) Act, which have removed criminal liability for violations.

“Section 15 provided that any violation of the provisions of the Act, the rules, regulations and orders passed would constitute an offence and there was a provision to set criminal law in motion. Surprisingly, the legislature has chosen to delete those provisions, not only under the EPA, but under the Air and Water Acts. The result is that if somebody pollutes drinking water, he can’t be penalised. All these provisions are replaced by a provision for monetary penalty,” he said.

The retired judge said that environmental protection has always been part of Indian culture.

“For centuries, our religious and philosophers have taught us the importance of preserving our environment. We don’t have to go to these international conventions; it is very much a part of our culture. Maybe with time, we have forgotten what is best in our culture."

He added that the effectiveness of “green benches” should be judged by their work, not their title.

“Whether a bench is green or not depends on the nature of orders passed by it and not on the basis of nomenclature,” he remarked.

Reflecting on his time on the Bench, Justice Oka said,

“Sadly, there are very few citizens who muster courage to approach the court with environmental issues. Unfortunately, the activists who do pro bono work are ridiculed by the political class and targeted by religious groups. Even the judges who pass strong orders in environmental matters are being targeted. This is the most unfortunate situation."

Justice Oka observed that real development must improve citizens’ quality of life, not degrade the environment.

“There is a prevailing view that environmental concerns should be balanced with the need for development. Perhaps all this happens because we have ignored what real development means in the framework of the Constitution,” he said.

“I think the real development is where in our cities affordable residential accommodation is created for our poor, affordable transport, education and health for the common man. Today in any city, can a common man venture to acquire residential accommodation? It’s impossible,” he added.

Justice Oka referred to recent remarks by a senior government official claiming that judicial orders obstruct the Viksit Bharat mission.

"There is a recent criticism by a very eminent individual who hold a very good post in the government. He said court orders come in the way of Viksit Bharat. I have said that every citizen of India has right to offer constructive criticism. But this learned man should have given examples of those judicial orders that obstructed the endeavour of Viksit Bharat. He should have given particulars. Which are those orders? If he had done so, it would have become constructive criticism. If he had given instances, we would have studied those orders." he said.