Breaking: Division Bench Of Madras High Court In A Special Sitting Stays Single Judge's Order Permitting Sale Of POP Ganesha Idols

A Division Bench of the Madras High Court, Madurai Bench has in a special sitting on Sunday stayed the operation of the Single Judge's order permitting the sale of Ganesha idols made of even Plaster of Paris (POP), in an appeal filed by the State government.

"There shall not be any sale or manufacturing of Vinayaka idol using Plaster of Paris", the Court ordered.

The Division Bench of Justice S.S. Sundar and Justice D. Bharatha Chakravarthy said that the matter requires elaborate consideration so that the judgment will binding on all stakeholders. "Since there is a prohibition on manufacturing of idols using POP, this Court cannot ignore the guidelines", the Court said in the order. The Court rejected the argument that the Central Pollution Control Board (CPCB) guidelines are not enforceable without the State framing rules. The Court relied upon an order of the NGT and a previous order of a Division Bench to hold that the guidelines are binding. The Court held that the order holding that the guidelines would apply only to immersion and not sale of idol cannot be sustained.  

The Court observed that there have been many orders of Courts over the years on the use of POP idols and now that the Pollution Control Board has come out with guidelines, it does not want to "take a step back". The Court said that Ganesha idol can be made by using fruits, jaggery and even laddus and only the use of POP is prohibited. The Court said that no license is required if POP is not used. 

On the submission that artisans will be in financial hardship if the sale is stopped, the Court said that only 10% of the sale will be affected since only a day is left for the festival.     

The Advocate General R. Shunmugasundaram appearing on behalf of the State argued that the Central Pollution Control Board guidelines say that there is a total ban on idols made of POP and that the single bench "got carried away by the title of the guidelines". He argued that the writ petitioner had not obtained any license for manufacturing. The state argued that the Guidelines apply to Muslims also, to Muslim festivals. He submitted that POP is a carcinogen. They can do it with clay, we can't permit POP, the AG argued. The Counsel added that the petitioner is conducting sales only for Vinayaka Chaturthi. 

Senior Advocate S. Ravi for the writ petitioner submitted that the CPCB Guidelines are merely recommendatory and the local body must frame enforceable rules for the purpose. He submitted that no rule has been framed for obtaining a license. The Bench then responded every activity requires a license. The Bench also said that there is a previous order by a Division Bench asking to adhere to the CPCB guidelines. The Bench also said that the NGT has held that the guidelines have statutory force. 

The Senior Advocate also argued that no manufacturer is able to approach the authority for a license in the absence of a provision to obtain a license. He argued that local bodies can't enforce guidelines without framing rules. 

The Bench said that the CPCB guidelines are applicable throughout the country and it can't be ignored because the local body did not frame rules. "We are now bound to issue directions to the State", Justice S.S. Sundar said, adding that the Court has its powers.

Senior Advocate S. Ravi also argued that there is no absolute ban on the use of POP. The Court said that every user who purchases an idol for Vinayaka Chathurthi will be immersed in a water body. The Senior Advocate then argued that the single judge has passed directions to ensure that such idols are not immersed. The Court then responded by asking that if the guidelines are not enforceable, how could the single judge pass such an order. Senior Advocate argued that the single judge has balanced equities correctly. 

"Every Vinayaka idol that is worshipped is required to be immersed", Justice D. Bharatha Chakravarthy said. He also said that traditionally idols were made of clay and seeds were used for the eyes of the idol. "True understanding of Vinayaka is simplicity", the Judge observed. The Court also said that the paint used on the POP idols is even more dangerous. 

Senior Advocate S. Ravi said that enforcing the whole guideline will lead to absurdity and that they are generic in nature, requiring framing of law considering local situations. He argued that throughout the state, licenses or permits have not been issued to anyone and implementing the guidelines a day before Vinayaka Chaturthi will cause hardship for poor artisans. 

The Court observed that the state ought to have framed rules. The AG argued that traditionally idols are made of clay and that POP is used now for mass production. The Senior Advocate then referred to a judgment of the Bonbay High Court which states that the idol of POP can be dissolved in ammonium bicarbonate and then the same can be used as a pesticide. The Court then said that ammonium bicarbonate is a carcinogen it won't permit that course of action. 

The Court also heard Senior Advocate Palanivel Rajan on behalf of the writ petitioner, before proceeding to pass an interim order. 

BREAKING: In a special Sunday hearing, Madras HC to hear State Government’s appeal against the order permitting the sale of Ganesh idols made of even Plaster of Paris (POP).#MadrasHighCourt #GaneshChaturthi #GaneshaFestival #VinayagarChaturthi pic.twitter.com/S8adESeNt1

The Tamil Nadu Government through the District Collector and Commissioner of Police of the Tirunelveli District and an Inspector of Police filed the letters patent appeal primarily on the ground that the Single Judge did not consider the Guidelines of the Central Pollution Control Board which are applicable as per a circular of the Tamil Nadu Board.

"The Learned Judge did not consider the fact that the licenses and permit was given to the idol manufacturers or makers or craftsman or artisans who uses eco-friendly natural clay materials (but not POP or Baked Clay) in making idols prior to festive times", the writ appeal says. 

The State also contends that POP is a hazardous material and it is banned for idol-making as per the revised guidelines for idol immersion by the CPCB. It says that when there is a specific bar for making the idol by utilizing the POP, granting the relief that the sale of the idols containing POP is permissible, is contrary to the Guidelines.

The state has pleaded in the appeal that "The Learned Judge did not consider the fact that the potential health effects of POP would cause severe effects during inhalation and over the eyes as a result of which the human respiratory system would be severely affected and it would have a direct bearing over the health hazard of the human life and hence allowing to sell the idols manufactured by utilizing POP infringe the right to life guaranteed under Article 21 of the Constitution of India 1950". 

The Single Judge had held yesterday that the sale of idols made of POP cannot be stopped and only its immersion can be stopped as per the guidelines issued by the state. "...I make it clear that immersion of idols containing plaster of paris cannot be permitted. But their sales cannot be prevented by the authorities", the Court had held (read report).

The Single Judge had also held that if the idols are eco-friendly, they can be manufactured and sold and such activities cannot be stopped for any reason. "If the police or the authorities indulge in any act of prevention, that would be rank illegality. They will have to answer if the aggrieved individual invokes public law remedy. Damages will have to be paid for the business loss caused", the Court held.

Click here to read/download Order