Breaking: Supreme Court Refuses To Interfere With Madras High Court's Order Staying Sale Of Ganesha Idols Made Of POP

The Supreme Court has refused to interfere with the interim order of the Division Bench of the Madras High Court staying a Single Judge's order permitting the sale of Ganesha Idols made of Plaster of Paris(POP). The Court was considering an SLP filed challenging the interim order passed in a special sitting of a Division Bench of the Madras High Court on Sunday. Earlier in the day, the Court had agreed to hear the SLP after the same was mentioned for an urgent hearing today itself.

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra refused to pass any order in the SLP, when the case was taken up as the last item today.

Senior Advocate Shya Divan along with Advocate Nachiketa Joshi appeared for the petitioner, the writ petitioner before the Madras High Court. Divan started by stating the facts relating to the case. He submitted that the idols contain POP. He submitted that the Central Pollution Control Board (CPCB) Guidelines relate to immersion. He submitted that there is a recommendation in the guidelines that the manufacture of the idol should not involve POP.

"The appellate order is an interlocutory order", the CJI said. "But it is the end of the day for me. Look at what the Single Judge has done", Divan responded. "Single Judge says manufacture and sale is permitted but no for immersion", the CJI said.

"Even for eco-friendly idols, the CPCB guidelines say, don't use rivers or water bodies. It says create artificial ponds and dispose of. He is not even having a license", the Counsel for the State submitted. "But there is no licencing regime", Divan responded. "You can manufacture anything made out of natural clay....", the CJI said. "But I have already manufactured these", Diwan responded. "That is alright", the CJI said and added that an order will be passed.

Background

The Single Judge of the Madras High Court had passed an interim order on Saturday holding that only immersion and not sale of idols made of Plaster of Paris (POP) can be prevented by authorities in the State. 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 Single Judge held.

The appeal filed by the State against the interim order was heard on Sunday and the Division Bench of Justice S.S. Sundar and Justice D. Bharatha Chakravarthy stayed the operation of the Single Judge's order. "As a matter of fact, the question as to making idols during Vinayaga Chaturthi festivals by using only pure clay and not by plaster of paris is no longer res integra and has been consistently reiterated by this Court...", the Division Bench held. (read report)

In the SLP filed before the Apex Court, the following questions of law have been raised:-

A. Whether the Impugned Interim Order failed to appreciate that the right to manufacture and selling of Vinayagar idol is a Fundamental Right under Art. 19 (1) (g) of the Constitution of India?

B. Whether the Hon’ble Division Bench of the High Court erred in staying the well reasoned order passed by the Ld. Single Judge by granting a blanket ban on manufacturing, selling or immersion of idols made of plaster of paris or plastics etc

C. Whether the Impugned Interim Order failed to appreciate that presumption that all purchasers of idol from the Petitioner and the likes of him do so for the purpose of immersion in water bodies and polluting them amounts to an unintelligible differentia, thus leading to arbitrariness under Art. 14 of the Constitution of India?

D. Whether the Impugned Interim Order failed to appreciate that imposing a ban on the manufacture of idols does not amount to “reasonable restriction” under Art. 19 (6) of the Constitution of India? E. Whether the Ld. Division Bench of the Hon’ble High Court failed to accord reasons as to whether reasonable restriction of imposing the ban of sale and manufacture of idols containing plaster of paris has any direct nexus with the object of protecting the water bodies during immersion?

F. Whether the Impugned Interim Order failed to appreciate that the Guidelines 2.0 issued by the CPCB has nothing to do with the manufacture of idols per se, but more to do with the immersion of the idols to protect the water bodies and the impugned interim order erred in imposing a blanket ban on the manufacture of idol rather than protecting the water bodies?

G. Whether the Division bench of the Hon’ble High Court failed to consider that the Police Authorities failed to adhere to due process without issuing any notice u/s 102 of Cr.P.C 1973 nor any prior intimation was being sent in accordance with law? and

H. Whether actions of the Respondent-State amounts to violation of Art. (s) 14, 19 (1) (g), and 25 as the Petitioner is arbitrarily targeted and his right to carry on his business and religious activities has been affected without any reasonable cause?

Cause Title: Prakash v. The District Collector, Tirunelveli District & Ors. [Dairy No. 38492/2023]