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BAN ON PLASTER OF PARIS IDOLS- A DICHOTOMOUS MELANGE OF ENVIRONMENT, RELIGION, TRADE AND LIVELIHOOD

INTRODUCTION

In accordance with the revised guidelines for idol immersion promulgated in 2020, idols made up of Plaster of Paris (hereinafter “PoP”) were banned.[1] The said ban was recently contested in a plea before the High Court of Bombay on the grounds that the immersion of idols made up of PoP in natural water bodies should have been prohibited rather than their manufacture and the plea was subsequently dismissed by the court.[2] The dismissal of the plea has spurred the timeworn debate of environment and religion and displeased sculptors.[3]

A TENDENTIOUS JUXTAPOSITION OF RELIGION AND ENVIRONMENT

Article 25[4] of the Constitution guarantees the freedom of conscience and the fundamental right to profess, practice and propagate any religion. However, it explicates from the outset that the said right is subject to reasonable restrictions on numerous grounds and public health is one of them. Article 26,[5] which is centred on the freedom to manage religious affairs, also enunciates in its latter half that the said right is subject to reasonable restrictions similar to the ones mentioned above. Moreover, it has been conclusively established by the judiciary that both of the aforementioned rights are not absolute.[6]

It was rightly observed by the Allahabad High Court in a case[7] concerning idol immersion that while freedom of religion is a fundamental right as sanctified under Article 25, it must be balanced with the preservation of the environment on the anvil of Directive Principles of State Policy viz. Article 48A[8] and 51A(g)[9] of the Constitution, behove the State and citizens respectively to safeguard the environment and its integral components and thus, while religious sentiments must be acknowledged and respected, the same should not pose a detriment to the environment. The right to religion, hence, should not override the right to a clean, pollution-free environment.  When PoP idols are submerged, the substance transforms into gypsum paste, disrupting the aquatic ecosystem and lowering the level of dissolved oxygen. The hazardous paints applied to the idols also raise the water’s toxicity levels and thereby adversely affect aquatic organisms. The aforementioned occurrence forms the primary basis of the ban on PoP idols, as idol immersions in the country are hundreds and thousands in number and what may seem like an insignificant source of pollution can transpire into mass pollution of rivers, lakes, ponds and other water bodies throughout the country.

Furthermore, the judiciary has hitherto ruled in favour of the environment in a plethora of cases pertaining to matters ranging from noise pollution[10] to bursting firecrackers and in a verdict pertaining to the former, it was emphasised by the judiciary that regulation of sources of noise pollution must be done so as to protect the peace and tranquillity of the neighbourhood.

LEGALITY OF THE BAN VIS-À-VIS ARTICLE 19 (1) (g) AND ARTICLE 21

Article 19 (1) (g)[11] of the Constitution is centred on the right to practice any profession or to carry on any occupation, trade or business and is a fundamental right. Prima facie, the said ban may appear to be in violation of the aforementioned right. However, the said right is subject to reasonable restrictions as entailed in Article 19(6)[12], one of the major grounds for such restriction is anything done in the interest of the general public, which also includes safeguarding the environment and public health. It has been conclusively laid down by the judiciary that pollution cannot be allowed to be a profitable activity.[13] Furthermore, the judiciary has reinforced the notion that any trade or occupation that results in environmental pollution cannot be entertained[14] and has also explicated that any trade, occupation or business which is capable of having repercussions on the environment and human health alike cannot be permitted to be carried out under the garb of fundamental rights.[15] Along similar lines, it has been held that a trade detrimental to the environment can be either regulated or completely prohibited.[16] It has also been established that the larger public interest overrides the relatively insignificant pecuniary interest of the industries and other businesses.[17] Article 21[18] of the Constitution is centred on the right to life and includes within its ambit the right to livelihood, as was affirmed in many cases.[19] Moreover, it has been rightly opined by the judiciary that a balance must be struck between “employment opportunities for workers & preservation of the environment and public health”.[20]Thus, the judiciary rightly and evidently has shown a constant inclination towards the preservation of the environment and human health whenever a clash between the right to carry on trade or occupation and livelihood & the right to protect the environment has arisen.

CONCLUSION

A mere prohibition on the immersion of such idols in natural water bodies would have had a limited impact on curbing pollution as it would have been cumbersome to regulate the immersion of all such idols in specially designated water bodies which can be either natural or artificial and even if the above procedure was strictly adhered to, it would not guarantee an absence of pollution due to the said immersion as there is no concrete evidence to prove the same. Pursuant to the said problem, conclusive studies need to be conducted in this regard which would in turn facilitate speedy implementation of effective measures, which are the need of the hour. Accordingly, the ban on the use of PoP for making idols has struck at the root of the problem stemming from the disposal of such idols.

While BMC has delayed the implementation of the said guidelines by a year owing to the imploration of sculptors in addition to the stringent timeline,[21] it has ordered the immersion of idols made up of PoP to be done in artificial lakes only. However, it must be ensured that the said guidelines are implemented well within the time of high footfall when festivals entailing idol immersion are around the corner so the sculptors have adequate time to procure the raw materials required to shift to clay idols. The Government should provide sculptors with financial aid or incentives in order to stimulate and catalyse this transition. The development of our nation mandates a clean and healthy environment and the same has to be harmonised with other fundamental rights, which, although seem contradictory at first, are concomitant and indispensable to the overall wellbeing of the country and steps shall be taken towards the same.

Author(s) Name: Avani Shashibhushan Hegde (Symbiosis Law School, Pune)

References:

[1] General Guidelines For Idol Immersion 2020, (The Central Pollution Control Board) <https://cpcb.nic.in/openpdffile.php?id=TGF0ZXN0RmlsZS8yOTVfMTU4OTI3Mzk4Nl9tZWRpYXBob3RvMjUucjQzNGRm> accessed 4 August 2022.

[2] Narsi Benwal, ‘Bombay High Court Upholds Ban On Use Of Pop Idols During Ganesh Chaturthi, Navratri’ (Bar and Bench, 27 June 2022) <https://www.barandbench.com/news/bombay-high-court-upholds-ban-use-pop-idols-during-ganesh-chaturthi-navratri> accessed 4 August 2022.

[3] Himanshi Akhand, ‘Ban On Pop Will Hit Hard: Idol Makers- The Softcopy (Thesoftcopy, 29 Oct 2020), <http://thesoftcopy.in/2020/10/29/ban-on-pop-will-hit-hard-idol-makers/>, accessed 4 August 2022.

[4] Constitution of India, 1950, art 25.

[5] Constitution of India, 1950, art 26.

[6] Bijaynanda Patra v. District Magistrate, Cuttack 2000, AIR Ori 70.

[7] Prashant Pandey, ‘Idol Immersion: Allahabad High Court For ‘Sensitive Balancing’ Of Religious Freedom And Protection Of Environment’ (The Indian Express, 27 June 2022) <https://indianexpress.com/article/cities/lucknow/idol-immersion-allahabad-high-court-for-sensitive-balancing-of-religious-freedom-and-protection-of-environment/> accessed 4 August 2022.

[8] Constitution of India, 1950, art 48A.

[9] Constitution of India, 1950, art 51A (g).

[10] State of Bombay v Narasu Appa Mali 1952, AIR  Bom. 82.

[11] Constitution of India, 1950, art 19 (1) (g).

[12] Constitution of India, 1950, art 19(6).

[13] Saloni Ailawadi v. Union of India 1996, 5 SCC 647.

[14] Burrabazar FireWorks Dealers v. The Commissioner Of Police 1998, AIR Cal 121.

[15] M. C. Mehta v. Kamal Nath 1997, 1 SCC 388.

[16] Indian Handicrafts Emporium and Ors v. Union of India 2003, AIR 3240.

[17] Ashoka Kumar Thakur v. Union Of India And Others 2008, AIR 2899.

[18] Constitution of India, 1950, art 21.

[19] Olga Tellis v. Bombay Municipal Corporation 1986, AIR 180.

[20] M.C. Mehta v. Union of India 2004, 12 SCC 118.

[21] Sanjana Bhalerao, ‘BMC Retracts Notice Banning Ganesh Idols Made Of Pop, Allows Immersion In Artificial Lakes’ (The Indian Express, 4 July 2022) <https://indianexpress.com/article/cities/mumbai/bmc-ganesh-idols-immersion-8008995/> accessed 5 August 2022.