fire works - air pollution - measurements

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
IA NOS. 6 AND 8 OF 2016
IA NOS. 10, 11, 80176, 96202, 109668, 109720 AND 122778 OF 2017
IA NOS. 68888 AND 68897 OF 2018
IN
WRIT PETITION (CIVIL) NO. 728 OF 2015
ARJUN GOPAL AND OTHERS .....APPELLANT(S)
VERSUS
UNION OF INDIA AND OTHERS .....RESPONDENT(S)
W I T H
WRIT PETITION (CIVIL) NO. 891 OF 2016
WRIT PETITION (CIVIL) NO. 895 OF 2016
WRIT PETITION (CIVIL) NO. 899 OF 2016
A N D
WRIT PETITION (CIVIL) NO. 213 OF 2017
J U D G M E N T
A.K. SIKRI, J.
Writ Petition (Civil) No. 728 of 2015 was filed on September
24, 2015 on behalf of three infants, who are made petitioners in
this writ petition. Petitioner No.1 and 2, on the date of filing of this
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 1 of 54
writ petition, were six months old and petitioner No.3 was
fourteen months old. This petition has been filed through their
next friends, i.e. their fathers, who are concerned about the health
of their children as they feel that due to the alarming degradation
of the air quality, leading to severe air pollution in the city of Delhi
(where these petitioners reside), the petitioners may encounter
various health hazards. Poor, very poor or severe air quality/air
pollution affects all citizens, irrespective of their age. However,
claim the petitioners, children are much more vulnerable to air
pollutants as exposure thereto may affect them in various ways,
including aggravation of asthma, coughing, bronchitis, retarded
nervous system breakdown and even cognitive impairment. The
petition accepts that there are number of reasons which have
contributed to poor air quality in Delhi and National Capital
Region (for short, ‘NCR’). At the same time, it is emphasised that
air pollution hits its nadir during Diwali time because of
indiscriminate use of firecrackers, the chemical composition
whereof increases harmful particulate matters such as PM2.5 or
PM10 at alarming level thereby bringing the situation of
‘emergency’. The petitioners have, thus, prayed for direction to
the official respondents to take possible measures for checking
the pollution by stricking at the causes of the pollution, which
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 2 of 54
includes seasonal crop burning, indiscriminate dumping of
dust/malba and other pollutants, etc. The prayer also includes
banning the use, in any form, of firecrackers, sparkles and minor
explosives, in any form, during festivals or otherwise.
2) This petition came up for preliminary hearing on October 08, 2015
when notice was issued and the matter was directed to be listed
on October 16, 2015 at 2:00 p.m. since the petitioners wanted
stay on burning of crackers during Diwali, which was around the
corner in that year. When the matter was taken up on October
16, 2015, certain suggestions were made by the learned counsel
appearing for the petitioners, which were as under:
“1. Restrict licenses to low hazard fireworks.
2. Period of grant of license is too early – need not be
from 2 days prior to Dussehra.
3. Restrict window for use of fireworks to be from 7:00
p.m. to 9:00 p.m.
4. RWAs to hold community fireworks for a brief period of
30 minutes on a single day.
5. Government be directed to give wide publicity to the ill
effects of fireworks and encourage restraint on
responsible use.
6. Encourage teachers to tell students not to buy and
use fireworks.”
3) Suggestion Nos. 5 and 6 were accepted and the relevant portion
of the order that was passed reads as under:
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 3 of 54
“In our view for the present, if we accept suggestion Nos. 5
and 6 it will not in any way affect the interest of the
respondents.
Shri Ranjit Kumar, learned Solicitor General
appearing for the Union of India states that the Union
Government has already taken enough and effective steps
to give wide publicity to the ill effects of fireworks.
In spite of the submission so made by the learned
Solicitor General, we intend to pass the following order:
“The Union Government and all the State Governments
will give wide publicity both in print and Electronic media
to the ill effects of fireworks and advise people
accordingly.
We also direct the Teachers/Lecturers/Assistant
Professors/ Professors of the Schools and Colleges to
educate the students about the ill effects of the fireworks.””
4) Thereafter, this petition was taken up along with certain other
connected petitions, including Writ Petition (Civil) No. 13029 of
1985 titled ‘M.C. Mehta v. Union of India’ and orders dated
December 16, 2015 were passed issuing several directions with a
view to reducing the levels of air pollution within the NCR, as the
issues in those writ petitions pertained to air pollution in Delhi and
NCR as well. It may be mentioned that the directions issued
therein were general in nature though concerning the problem of
air pollution. Thereafter also the instant writ petition, along with
the M.C. Mehta case and other cases, came up for hearing and it
is not necessary to take note of all those orders.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 4 of 54
5) Pertinently, during Diwali of 2016, which was celebrated on
October 30, 2016, the air quality in Delhi and NCR worsened
alarmingly. In fact, certain reports indicated that the air quality
standards in early November of that year were the worst in the
world. This prompted the Court to take up IA No.4 filed in this writ
petition. After hearing the parties, it passed orders dated
November 11, 2016.
6) The petitioners had pressed for interim relief in respect of
fireworks, drawing the attention of this Court to the emergent
situation that has resulted in worsening the air quality standards
in Delhi and National Capital Region (NCR) because of extensive
use of fireworks, including firecrackers during Diwali last year. It
was pointed out that onset of winter itself deteriorates air quality
in this region and it gets aggravated because of festival/marriage
season that occurs during these very months. Taking note of the
aforesaid factors, particularly impact of fireworks on the ambient
air and unhealthy effects thereof which had created
unprecedented situation in Delhi, with air pollution going up at
alarming levels and making it the most polluted city in the world,
the order dated November 11, 2016 was passed. Air pollution
had gone up to 29 times above the World Health Organisation
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 5 of 54
(WHO) standards. In the aforesaid scenario, this Court deemed it
proper to pass certain directions vide its order dated November
11, 2016 in IA No.4. Snapping the supply chain of fireworks was
considered to be the more practical way of addressing the
menace instead of banning the burning the crackers by
individuals as it would have been difficult to monitor and enforce
the burning of the crackers by the citizenry.
7) In paragraph 18 of the Order dated November 11, 2016 it was
clarified that much was left to be heard, discussed and said about
the rival claims and contentions. However, the Court hastened to
add that harmful effects of fireworks on the ambient air and the
lungs, eyes and ears of people was also an acknowledged fact,
as can be seen from the following portion of the said paragraph:
“18. We are aware that we are only issuing interim
directions, and much is left to be heard, discussed and said
about the rival claims and contentions. What is however
indisputable is that the harmful effects of fireworks on the
ambient air and the lungs, eyes and ears of people. What
is also obvious is the extreme nuisance, noise the fireworks
cause to citizens particularly the ailing and the aged.
Therefore, though much can be argued as always about
the significance and even joy of bursting fireworks, but at
the same time (sic), prima facie, a just constitutional
balance must overwhelmingly prioritize the harmful effects
of this hazardous air on present and future generations,
irreversible and imperceptible as they are, over the
immediate commercial constraints of the manufacturers
and suppliers of fireworks…”
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 6 of 54
8) In the process, this Court also recognised the duty of the State to
ensure a healthy environment in terms of Article 48A of the
Constitution of India as well as the duty of the citizens to ensure
the same under Article 51A(g) of the Constitution. 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. In
the order the Court had taken note of the deleterious effects of air
pollution on the health of the people, particularly the children.
Going by all these considerations, the Court passed the following
directions:
“19. We thus consider it inappropriate that explosives
which are used as fireworks should be available in the
market in the NCR till further orders. The mechanism of
the law in this regard is clear. Rule 118 of the Explosive
Rules, 2008, framed under the Explosives Act, 1884,
provides for the manner in which licenses issued under the
Explosives Act to store and sell explosives could be
suspended or cancelled. Sub-Rule (5) thereof specifically
confers on the Central Government a power to suspend or
cancel a license if it considers that it is in public interest.
This provision also makes it clear that an opportunity to
hear the licensee could be dispensed with if the Central
Government considers that in public interest. This Court
finds that the grave air quality situation in NCR is one such
case, where this Court, can intervene and suspend the
licenses to store and sell fireworks in the NCR. We direct
the Central Government to:
(i) Suspend all such licenses as permit sale of
fireworks, wholesale and retail within the
territory of NCR.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 7 of 54
(ii) The suspension shall remain in force till further
orders of this Court.
(iii) No such licenses shall be granted or renewed
till further orders.
20. In addition to the above, we direct the CPCB to study
and prepare a report on the harmful effects of the materials
which are currently being used in the manufacture of
fireworks. The report shall be submitted within a period of
three months to this Court.”
9) Since direction was given to the Central Pollution Control Board
(CPCB) to study and prepare a report of the harmful effects of the
materials which are currently being used in the manufacture of
fireworks and submit a report within three months, the matter was
taken up for consideration thereafter from time to time.
10) Thereafter, the manufacturers of firecrackers as well as license
holders also filed applications for modification of the aforesaid
interim order. It included IA No. 52448 of 2017. Because of
these applications, the matter was heard by a Bench of this Court
and orders dated September 12, 2017 were passed in the
aforesaid IA. In this order also, the Court recognised severity of
air pollution in Delhi and NCR. The Court also discussed the
manner in which air quality had worsened due to fireworks during
Diwali days in the year 2016. The Court took note of the steps
that were taken by different authorities aiming to reduce air
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 8 of 54
pollution after the passing of orders dated November 11, 2016;
the legal provisions contained in the Explosives Act, 1884 and the
Explosive Rules, 2008 framed thereunder; and further steps
which were needed in this behalf to reduce the pollution in Delhi
and NCR. The Court took note of the fact that number of
measures were required to be taken for improving air quality as
various factors were contributing to the air pollution. It also
specifically mentioned that one of the reasons was burning of
crackers/fireworks during Diwali. On that basis, the Court also
accepted that one of the possible methods for reducing it during
Diwali is by continuing the suspension of licenses for the sale of
fireworks, thereby implicitly prohibiting the bursting of fireworks.
However, at the same time, the Court expressed the opinion that
continuing the suspension of licenses might be too radical a step
to take for the present. It was deemed appropriate to adopt a
graded and balanced approach, which is necessary, that will
reduce and gradually eliminate air pollution in Delhi and in the
NCR caused by the bursting of fireworks. In the process, the
Court took into consideration the interest of those who had
already been granted a valid permanent licence to posses and
sell fireworks in Delhi and the NCR. We would like to reproduce
the following paragraphs from the said order:
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 9 of 54
“67. The right to health coupled with the right to breathe
clean air leaves no manner of doubt that it is important that
air pollution deserves to be eliminated and one of the
possible methods of reducing it during Diwali is by
continuing the suspension of licences for the sale of
fireworks and therefore implicitly, prohibiting the bursting of
fireworks.
68. In our considered opinion, continuing the suspension
of licences might be too radical a step to take for the
present – 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. At the
same time it is necessary to ensure that injustice is not
caused to those who have already been granted a valid
permanent licence to possess and sell fireworks in Delhi
and the NCR. The graded and balanced approach is not
intended to dilute our primary concern which is and
remains the health of everybody and the human right to
breathe good quality air or at least not be compelled to
breathe poor quality air. Generally speaking this must take
precedence over the commercial or other interest of the
applicant and those granted a permanent licence to
possess and sell fireworks.
69. But, 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. There is, therefore, some
justification for modifying the interim order passed on 11th
November, 2016 and lifting the suspension of the
permanent licences.
70. At the same time, it cannot be forgotten that admittedly
there is a huge quantity of fireworks in Delhi and in the
NCR and the figure has been provided to us by the
applicant. Similarly, there can be no doubt that the Delhi
Police had issued a large number of temporary licences in
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 10 of 54
2016 and it would not be unreasonable to assume that
around and during Diwali, there would have been some
illegal temporary shops set up, whether known or not
known to the police. We do not have the figures with
regard to the NCR, but we assume that like in Delhi, a
large number of temporary licences have been issued for
the possession and sale of fireworks. Therefore, there is a
need to regulate the availability and sale of fireworks in
Delhi and the NCR.”
11) It was followed by the following directions:
“71. As mentioned above, the health of the people in Delhi
and in the NCR must take precedence over any
commercial or other interest of the applicant or any of the
permanent licensees and, therefore, a graded regulation is
necessary which would eventually result in a prohibition.
Taking all factors into consideration, we are of the view that
the following orders and directions are required to be
issued and we do so:
(1) The directions issued by this Court in Sadar Bazar
Fire Works (Pucca Shop) Association shall stand
partially modified to the extent that they are not in
conformity with the Explosives Rules which shall be
implemented in full by the concerned authorities. Safety
from fire hazards is one of our concerns in this regard.
(2) Specifically, Rule 15 relating to marking on explosives
and packages and Rule 84 relating to temporary shops for
possession and sale of fireworks during festivals of the
Explosives Rules shall be strictly enforced. This should not
be construed to mean that the other Rules need not be
enforced – all Rules should be enforced. But if the
fireworks do not conform to the requirements of Rules 15
and 84, they cannot be sold in the NCR, including Delhi
and this prohibition is absolute.
(3) The directions issued and restrictions imposed in the
order passed by this Court on 18th July, 2005 in Noise
Pollution (V) shall continue to be in force.
(4) The concerned police authorities and the District
Magistrates will ensure that fireworks are not burst in
silence zones that is, an area at least 100 meters away
from hospitals, nursing homes, primary and district healthIAs
in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 11 of 54
care centres, educational institutions, courts, religious
places or any other area that may be declared as a silence
zone by the concerned authorities.
(5) The Delhi Police is directed to reduce the grant of
temporary licences by about 50% of the number of licences
granted in 2016. The number of temporary licences should
be capped at 500. Similarly, the States in the NCR are
restrained from granting more than 50% of the number of
temporary licences granted in 2016. The area of
distribution of the temporary licences is entirely for the
authorities to decide.
(6) The Union of India will ensure strict compliance with the
Notification GSR No. 64(E) dated 27th January, 1992
regarding the ban on import of fireworks. The Union of
India is at liberty to update and revise this notification in
view of the passage of time and further knowledge gained
over the last 25 years and issue a fresh notification, if
necessary.
(7) The Department of Education of the Government of
NCT of Delhi and the corresponding Department in other
States in the NCR shall immediately formulate a plan of
action, in not more than 15 days, to reach out to children in
all the schools through the school staff, volunteers and
NGOs to sensitize and educate school children on the
health hazards and ill-effects of breathing polluted air,
including air that is polluted due to fireworks. School
children should be encouraged to reduce, if not eliminate,
the bursting of fireworks as a part of any festivities.
(8) The Government of NCT of Delhi and other States in
the NCR may consider interacting with established medical
institutions for issuing advisories cautioning people about
the health hazards of bursting fireworks.
(9) The interim direction issued by this Court on 31st July,
2017 prohibiting the use of compounds of antimony,
lithium, mercury, arsenic and lead in the manufacture of
fireworks is made absolute. In addition, the use of
strontium chromate in the manufacture of fireworks is
prohibited.
(10) Fireworks containing aluminum, sulphur, potassium
and barium may be sold in Delhi and in the NCR, provided
the composition already approved by PESO is maintained.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 12 of 54
It is the responsibility of PESO to ensure compliance of the
standards it has formulated.
(11) Since there are enough fireworks available for sale in
Delhi and the NCR, the transport of fireworks into Delhi and
the NCR from outside the region is prohibited and the
concerned law enforcement authorities will ensure that
there is no further entry of fireworks into Delhi and the NCR
till further orders. In our opinion, even 50,00,000 kg of
fireworks is far more than enough for Dussehra and Diwali
in 2017. The permanent licensees are at liberty to exhaust
their existing stock of fireworks in Delhi and the NCR and, if
that is not possible, take measures to transport the stocks
outside Delhi and the NCR.
(12) The suspension of permanent licences as directed by
the order dated 11th November, 2016 is lifted for the time
being. This might require a review after Diwali depending
on the ambient air quality post Diwali. However, it is made
explicit that the sale of fireworks by the permanent
licensees must conform to the directions given above and
must be fully in compliance with the Explosives Rules. We
were informed that the permanent licences were issued by
PESO and therefore the responsibility is on PESO to
ensure compliance.
(13) While lifting the suspension on the permanent licences
already granted, we put these licensees on notice for
Dussehra and Diwali in 2018 that they will be permitted to
possess and sell only 50% of the quantity permitted in
2017 and that this will substantially reduce over the next
couple of years. The permanent licensees are at liberty to
file objections to this proposed direction within 30 days
from today and thereafter the objections if any will be heard
and decided. If no objections are filed, this direction will
become absolute without any further reference to any
licensee.
(14) Since there is a lack of clarity on the safety limits of
various metals and constituents used in fireworks, a
research study must be jointly carried out by the CPCB and
the FRDC laying down appropriate standards for ambient
air quality in relation to the bursting of fireworks and the
release of their constituents in the air. While Schedule VII
of the Environment (Protection) Rules, 1986 does deal with
several metals, but as we have seen there are several
other metals or constituents of fireworks that have not been
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 13 of 54
studied by the CPCB and no standards have been laid
down with regard to the concentration of these metals or
constituents in the ambient air. The CPCB has assured us
that it will complete the exercise by 15th September, 2017
but keeping in mind its track record subsequent to the
order dated 11th November, 2016 this does not seem
possible. Therefore, we grant time to the CPCB to come
out with definite standards on or before 30th September,
2017.
(15) In any event, a research study also needs to be
conducted on the impact of bursting fireworks during
Dussehra and Diwali on the health of the people. We,
therefore, appoint a Committee to be chaired by the
Chairperson of the CPCB and consisting of officers at the
appropriate level from the National Physical Laboratory,
Delhi, the Defence Institute of Physiology and Allied
Sciences, Timarpur, Delhi, the Indian Institute of
Technology-Kanpur, scientists from the State Pollution
Control Boards, the Fire Development and Research
Centre, Sivakasi and Nagpur and the National Environment
Engineering Research Institute (NEERI) nominated by the
Chairperson of the CPCB to submit a report in this regard
preferably on or before 31st December, 2017.
(16) Keeping in mind the adverse effects of air pollution,
the human right to breathe clean air and the human right to
health, the Central Government and other authorities
should consider encouraging display fireworks through
community participation rather than individual bursting of
fireworks.”
12) After the aforesaid order was passed, many applications were
filed, from both sides, seeking modification of some of the
aforesaid directions. Insofar as the petitioners are concerned, in
their application for modification, they prayed for removal of
Directions Nos. 5 and 10 to 13, which was in essence a prayer for
restoration of earlier order dated November 11, 2016. Insofar as
fireworks manufacturers, traders and license holders of the
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 14 of 54
fireworks/firecrackers are concerned, they wanted that relaxation
given in the order dated September 12, 2017 be further
liberalised.
13) After hearing both the parties, orders dated October 09, 2017
were passed. The Court accepted the fact that burning of
firecrackers during Diwali was not the only reason for air pollution
in Delhi and NCR and there was a need to tackle those factors as
well. However, it was observed that the immediate impact of use
of fireworks and firecrackers bursting during Diwali is an
altogether different aspect. The Court noted that there is direct
evidence of deterioration of air quality at alarming levels, which
happens every year. Burning of these firecrackers during Diwali
in 2016 had shot up PM levels by three times, making Delhi the
worst city in the world insofar as air pollution is concerned. Direct
and immediate cause thereof was burning of crackers during
Diwali. The Court also remarked that every year before Diwali
there are attempts on the part of the Government (Ministry of
Environment, Government of India as well as Delhi Government),
Media, NGOs and various other groups to create awareness in
the general public about the ill-effects of bursting of these
crackers. Campaigns are held in the schools wherein children
are discouraged to have fireworks. Thus, there is virtually a
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 15 of 54
consensus in the society that crackers should not be burnt during
Diwali, which can be celebrated with equal fervour by various
other means as well. Irony is that when causes are brought in the
Court, there is a resistance from certain quarters. Moreover,
there are adequate statutory provisions, aid whereof can be taken
to ban the sale of these crackers.
14) The Court also took into consideration three substantial
submissions which were made by the petitioners, viz.: (a) CPCB
had taken a stand, nearly twenty years ago, that Sulphur in
fireworks should not be permitted as Sulphur on combustion
produces Sulphur Dioxide and the same is extremely harmful to
health. The CPCB has stated that between 9:00 p.m. to midnight
on Diwali day the levels of Sulphur Dioxide content in the air are
dangerously high. Moreover, all the above authorities were also
unanimous in their view that crackers should only be burst in
designated places. Also the CPCB had specifically stated that
joined crackers should be banned. Secondly, in the order dated
November 11, 2016, licenses were suspended primarily for the
reason that rising in the PM levels at alarming proportion was
because of burning of crackers during Diwali, which had adverse
harmful affect and, therefore, there was no reason to relax this
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 16 of 54
condition. Another significant argument which was taken note of
was that the order dated November 11, 2016 was passed
immediately after the Diwali in the year 2016 and the effect of that
order had not been tested. Going by these considerations, the
Court decided to suspend the order dated September 12, 2017 at
least during the Diwali of 2017 with the following directions:
“14...To put it clearly, though we are not tweaking with the
various directions contained in the Orders dated
September 12, 2017, the effect of that Order would not be
given during this Diwali and, therefore, we are making it
effective only from November 01, 2017. We are conscious
of the fact that after the said order was passed, the police
may have issued temporary licences. Accordingly, those
are suspended forthwith so that there is no further sale of
the crackers in Delhi and NCR. Further orders in this behalf
can be passed on assessing the situation that would
emerge after this Diwali season...”
15) As expected, spate of applications have been filed, most of which
emanate from the aforesaid orders dated October 09, 2017. Many
parties have intervened. Most of the interventionists are
supporting the petitioners and want permanent ban on the
burning of crackers during Diwali. Some have even prayed that
this ban be extended to the whole country and should not be
limited to only Delhi and NCR. IAs were also filed seeking ban on
crop burning. The opposite group consists of manufacturers of
crackers, manufacturers’ association and license holders. The
State of Tamil Nadu has come forward to support this category.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 17 of 54
Additionally, one interventionist, namely Indic Collective (applicant
in IA No. 105355 of 2017), is also opposing the ban contending
that burning of crackers during Diwali is a religious activity which
is in vogue for time immemorial and, therefore, it should not be
banned.
16) It is not necessary to take note of the arguments of each of the
counsel appearing on either side. For the sake of convenience,
arguments of the petitioners as well as those who have supported
the petitioners’ cause and the arguments of the other group which
is opposing the prayers made by the petitioners, are collated and
we state below these arguments and counter arguments in
consolidated manner:
17) Petitioners’ Arguments:
(a) As far as the petitioners are concerned, they have
proceeded on the premise that undeniable fact is that as a result
of burning of crackers during Diwali PM2.5 reach an alarmingly
high level which certainly is injurious to health. It is argued that
the adverse affect thereof on the health of citizens, particularly
children, is irreversible. It causes asthma, coughing, bronchitis,
retarded nervous system breakdown and even cognitive
impairment.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 18 of 54
(b) The official respondents had failed to address the issues
and carry out desired studies in spite of the directions of this
Court. Various committees set up are examining the question as
to what kind of metal should be used in the manufacture of
crackers. So far no study has been conducted on the ill-effect
caused by PM2.5.
(c) Studies by CPCB had categorically found that burning of
crackers during Diwali was contributing to air as well as noise
pollution in an alarming manner. Copies of these studies showing
continuous ambient air quality during Diwali annexed with IA No.
109720 of 2017 is referred to. Contents of the affidavit of CPCB
dated January 05, 2018 has also been relied upon.
The petitioners also rely upon the report filed by the Union
of India, through the Ministry of Environment, Forest and Climate
Change, wherein ill-effects of fireworks are accepted and
measures suggested to tackle the same.
Opinions of prominent doctors mentioning spike in the
respiratory problems among children and patients are also
pointed out.
(d) Dealing with the argument of the manufacturers and traders
of firecrackers based on Article 19(1)(g) of the Constitution of
India, namely, fundamental right to carry on business, the
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 19 of 54
submission of the petitioners is that going by the ill-effects of the
firecrackers, no such right can be claimed as principle of res extra
commercium would apply. In support, additional affidavit filed on
July 26, 2017 as well as in July 2018 are referred to wherein the
petitioners have sought to highlight the following aspects:
(i) These manufacturers were employing child labour. At
one point of time, almost one lakh children were employed
in this industry. Though it was admitted that this position
does not exist any longer in view of strict measures taken
by the Government.
(ii) The manufacturing of firecrackers generates a lot of
waste which adds to pollution as sufficient measures are
not undertaken to deal with this waste.
(iii) Number of deaths as well as injuries to persons are
caused every year due to poor storage which results in
occasional accidents. Likewise, the burning of these
crackers also results in injuries.
(iv) Firework also leads to lot of noise and air pollution as
well. Judgments of this Court in Vellore Citizens' Welfare
Forum v. Union of India and Others, (1996) 5 SCC 647;
and A.P. Pollution Control Board v. Prof. M.V. Nayudu
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 20 of 54
(Retd.) and Others, (1999) 2 SCC 718, have been relied
upon.
In the alternative, it was argued that even if it is
accepted that argument of Article 19(1)(g) of the
Constitution is available to the manufacturers and traders,
such a ban on burning crackers during Diwali would
amount to reasonable restriction having regard to the fact
that right to health was also a fundamental right guaranteed
under Article 21 of the Constitution. It was also submitted
that the cost in the form of medical expenses which are
incurred for treatment of those who suffered as a result of
burning of crackers is equally high or even may be higher.
(e) One of the arguments of the opposite side was that there
were no sufficient studies as to what extent the burning of
crackers is contributing towards air and noise pollution and
whether it was such a serious problem which warrants ban. To
this, reply of the petitioners was that in the field of environmental
laws, precautionary principle was also applicable which does not
need exact studies or material.
(f) Insofar as argument of burning of crackers during Diwali, as
a part of right of religious practice is concerned, the refutation of
the petitioners is that such an argument has already been
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 21 of 54
rejected by this Court in Vellore Citizens' Welfare Forum case.
It was further submitted that burning of crackers during Diwali is
not a core and essential religious practice and even if it is so,
Article 25 was subject to Article 21 of the Constitution. Judgment
in Noise Pollution (V), in Re, (2005) 5 SCC 733, was relied upon
in this regard.
18) Arguments of the opposite side:
The respondents, who are opposing the prayers made in
the writ petitions and the IAs, made the submissions to the
following effect:
(i) Burning of crackers during Diwali does not have any
significant adverse affect on the environment. It is argued that
there is no study till date which has come to such a conclusion.
The Deepawali Monitoring Report, 2017 of CPCB is relied upon
for this purpose and on that basis it is contended that the factors
which contributed to the problem were not because of crackers
burning during Diwali. Ambient air quality before and after Diwali
reflects that there was no spike immediately after Diwali. It was
accepted that situation of air pollution in Delhi and NCR is
'generally' worrying. However, there are multiple causes which
lead to polluting air and such a position existed even before
Diwali, which showed that other factors played dominant role.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 22 of 54
(ii) Insofar as presence of PM2.5 in the air is concerned, studies
of CPCB are relied upon, on the basis of which attempt is made
to show that: (a) spike was not so much during Diwali days; (b)
increase in PM2.5 in the air does not remain for long, i.e. it does
not linger for many days; and (c) it is manageable as well.
Reports of Indian Institute of Technology, Kanpur; National
Aeronautics and Space Administration (NASA), USA; a professor
from Harvard University; and an affidavit dated January 05, 2018
filed by CPCB were referred to in support.
(iii) It is submitted that pursuant to orders dated September 12,
2017 whereby the Court had directed that a research study needs
to be conducted on the impact of bursting fireworks during
Dussehra and Diwali on the health of people, no such empirical
data has emerged so far for want of detailed studies.
In nutshell, the argument was that in the absence of any
definite study attributing the worsening of air quality to the
fireworks during Diwali, the right of the manufacturers and traders
under Article 19(1)(g), which is a fundamental right to carry on
trade, should not be made to suffer till the time there is a
complete study in this behalf.
(iv) It is also argued that the revenue generated from the
manufacturing and sale of fireworks is to the tune of Rs.6,000
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 23 of 54
crores per annum. Further, this industry has given employment
to five lakh families. Such a revenue to the State as well as
employment to large number of workers on which five lakh
families sustain cannot be put in jeopardy by imposing a total
ban. It was emphasised that there is a necessity to adopt a
balanced approach. For this purpose, Status Report and affidavit
of the Ministry of Environment, Forest and Climate Change has
been relied upon which suggested eco-friendly firecrackers.
Advisory dated March 07, 2008 issued by the Petroleum and
Explosives Safety Organisation (PESO), which comes under the
Department of Industrial Policy and Promotion, Ministry of
Commerce and Industry, Government of India, was also relied
upon, as per which the fireworks manufacturers in India were
advised to ensure that the firecrackers manufactured by them are
within the limits prescribed in Annexure-I to the said Advisory
dated March 07, 2008.
(v) The State of Tamil Nadu also supported the cause of the
manufacturers and traders of the firecrackers. It was argued that
the study undertaken by CPCB pursuant to the directions issued
by this Court was conducted by the Committee which did not
have a representative from the Fireworks Research and
Development Centre (FRDC) which was not even informed about
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 24 of 54
the development of this case. It was emphasised that any proper
study in this behalf should address following aspects:
a) Socio-economic effect of the ban needs to be
examined as it may cause extreme economic
hardship,
b) There should be a proper study about the other
factors which were leading to air pollution, like
construction activity, etc., which are not banned.
c) Banning of an activity is an extreme measure.
The study should focus on the alternatives
available in the present day technology which
may be deployed to ensure that pollution free
firecrackers can be manufactured.
(vi) Indic Collective (applicant in IA No. 105355 of 2017)
opposed the prayer of banning of fireworks during Diwali on the
ground that it was a religious practice scrupulously followed by
the Hindus from time immemorial and it had become a core and
essential religious practice which was protected under Article 25
of the Constitution as their fundamental right.
19) The arguments of the parties recorded above would show that the
submissions for and against almost remain the same, which were
advanced on earlier occasions, though the focus of both the sides
was more nuanced. In the process, the events and
developments which have taken place after passing the order
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 25 of 54
dated October 09, 2017 have also been relied upon by both the
parties.
20) Before proceeding to deal with these submissions, it may be
apposite to take note of the study that has been undertaken by
CPCB on the basis of the directions of this Court in its order
dated September 12, 2017.
21) Following the directions of this Court, a Committee was appointed
to be chaired by the Chairperson of the CPCB. This Committee
invited Dr. M.K. Daga, Professor Director, Maulana Azad Medical
College (MAMC), as health expert to study the methodology. Dr.
Daga suggested that considering the time available, a short-term
study based on questionnaire survey, hospital data collection and
sampling at a few locations can be conducted. This methodology
proposed by Dr. Daga was agreed to by the Committee. The
Committee requested MAMC to submit a proposal accordingly.
On submission of project proposal, the Committee awarded the
project on 'Health Impact Assessment on Firecracker Burning
During Dussehra And Diwali' to MAMC. The scope included
questionnaire survey for respiratory, skin, air, eye and relevant
symptoms during pre and post Diwali, clinical study on lung
function and urine samples of randomly selected subjects, and
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 26 of 54
data analysis. After conducting this survey, a draft report was
prepared and ultimately it was finalised after incorporating the
comments from the Members of the Committee. As per this study
on the afore-mentioned subject, following are the major findings:
"The respiratory system related symptoms and sings were
not much different during pre and post Dussehra and
Diwali. Although there was some increase in cough and
breathlessness, but this did not translate into any
significant illness requiring immediate medical attention.
Other system related complaints were also not much
different during pre and post Dussehra and Diwali.
There was evidence of increased values of barium and
strontium in urine samples of many subjects. These are
some of the metals used in firecracker manufacturing.
Increased levels in urine do reflect a probability of
exposure. However, all other elements are not increased
to substantiate the effect of bursting of firecrackers. It is
also possible that the individuals were exposed due to
bursting of firecrackers directly or indirectly in their locality.
Air quality did worsen during Diwali and symptoms of eye,
increased coughing, relatively more hospital visits,
increased noise levels and high metal levels in urine do
reflect adverse impact of firecracker bursting. However, it
was not significant statistically. A long term study would be
required to assess long term health impacts of firecracker
bursting."
22) Affidavit filed by CPCB also states that in compliance of the
orders dated October 09, 2017 of this Court the Air Quality
Monitoring Committee during Dussehra and Diwali was
conducted by CPCB, a report whereof is annexed with its
affidavit. As per that report, the salient features are as under:
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 27 of 54
“a) That, slight increase in PM10 concentration was
observed in two locations i.e. Pitampura and Siri Fort
on Dussehra day.
b) That, PM2.5 mass concentrations were found lower on
post Dussehra day at all stations and it was highest
on pre Dussehra day.
c) That the concentrations of SO2 and NO2 during pre
Dussehra, Dussehra and post Dussehra days
remained within limits.
d) That, though the actual PM2.5 mass concentrations
were declined on Dussehra day, certain specific
elemental concentration like Aluminum, Potassium
and Barium showed increment on Dussehra day,
which indicate some firecracker bursting has affected
air quality.
e) That, on Diwali day both PM10 and PM2.5 increased 2-
3.5 fold of the levels recorded seven days before
Diwali and the Diwali peaks of PM2.5 declined in three
days.
f) Both PM10 and PM2.5 were reported higher in post
Diwali day compared to pre Diwali at all stations.
g) SO2 remained within prescribed standard limit with
slight increment on Diwali day. NO2 also reported
within standard limit at all locations on Diwali day.
h) That, the elements like Al, S, K, Cl2, Ba, Sr all have
registered their presence in PM2.5 collected on Diwali
day, and the concentration of Al observed 4 to 6 times
higher than that of short-term standards/critical values
of 40 ug/m3 proposed by CPCB.
i) PM2.5 was reduced by 39% compared to 2016 Diwali
day.
j) Sulphur got reduced by 20%, Potassium by 30%, Ca,
Cu, Zn, Sb by about 35-40%, Fe&Ba by about 50%,
Strontium by 64% and Al and Cl2 by 11%."
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 28 of 54
23) It can be discerned from the above that the air quality had
worsened during Diwali. There were more patients with
symptoms of eye, increased coughing and patients with high
metal levels in urine. Even noise level had increased. These are
the adverse impacts of firecracker bursting, though the study
mentions that statistically it was not a significant increase.
24) The study has also found that actual PM2.5 mass concentrations
increased due to firecracker bursting, which had affected air
quality. On Diwali day both PM10 and PM2.5 had 2-3.5 fold
increase. Also, PM10 and PM2.5 were reported higher in postDiwali
day compared to pre-Diwali at all stations. Another
significant finding is that PM2.5 was reduced by 39% compared to
2016 Diwali, presumably due to the ban order on the sale of
crackers which was passed on October 09, 2017, which led to
lesser quantum of fireworks.
25) Two significant features emerge from the above. First, due to
fireworks on Diwali day, PM2.5 levels go up. Secondly, when there
was lesser fireworks in 2017, it had reduced the PM2.5 levels as
compared to the earlier Diwali in the absence of ban.
26) It is an accepted fact that bursting of firecrackers during Diwali is
not the only reason for deterioration of air quality. There are other
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 29 of 54
factors as well. It calls for necessity to tackle the other
contributory factors for air pollution and making the air quality as
'very poor' and even 'poor'. Unregulated construction activity
which generates lot of dust and crop burning in the neighbouring
States are the two other major reasons, apart from certain other
reasons, including vehicular pollution etc. The moot question in
such a scenario is as to whether the menace due to fireworks
during Diwali or other festivals/occasions should be left
untouched and the Court should allow the situation to prevail as it
is, only because it is not the sole reason for causing air pollution?
Answer has to be in the negative.
27) Once it is accepted that PM2.5 level goes alarmingly higher on
Diwali and post-Diwali, which is the result of bursting of
firecrackers, it is necessary to understand the adverse affect on
health of persons of this particulate in air, even if such a situation
remains only for few days. In this behalf, we may refer to the
opinions of some experts/prominent doctors in the field, which
have been placed on record by the petitioners.
28) Dr. Arvind Kumar, who interfered in the matter, filed his affidavit
on August 14, 2018, wherein he has inter alia stated as under:
"7. I have consistently found that in the immediate
aftermath of Diwali, there is an increase in the number of
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 30 of 54
people coming with chest ailments and many of my
operated patients returned with complaints of cough and
breathlessness without any other cause for the same. This
has forced me to carry out innumerable chest x-rays and
CT scans to confirm that the complaints are due to the
exposure to toxins. For the sake of relief to the patient and
in order to relieve them from bronchospasms, my
colleagues and I are compelled to prescribe inhalers which
have brochodilators and inhaled steroids, apart from cough
suppressants and antibiotics. Media reports suggest that
there has been an increase in asthma medicine sales by
43% due to pollution (Hindustan Times, May 02, 2017).
While earlier, it was believed that children with asthma
would outgrow the affliction, in the present circumstances,
this seems challenging.
8. Both at AIIMS and at Sir Ganga Ram Hospital, there
has been a significant increase in the number of patients I
would see in my OPD in the days immediately following
Diwali, and I have no doubt that this was on account of
sudden exposure to the deadly cocktail consisting of
extremely high levels of toxic gases, particulate matter and
metallic compounds. Each exposure to firework emissions
not only leads to acute disastrous effects but also causes
cumulative long-term irreversible damage. Once the PM2.5
particle gets deposited in the lungs, it never leaves, thereby
affecting the linking for life and diminishing breathing
capacity. This affects not only the respiratory system, but
also the cardio-vascular system (heart attacks and
hypertension), nervous system (strokes and developmental
abnormalities in children), reproductive system and virtually
every other health function including the bladder and
kidneys.
9. It would be useful to refer to two studies conducted ten
years apart by a team including Prof. Sundeep Salvi,
Director Chest Research Foundation, Pune and Member of
the Government of India's Steering Committee on Air
Pollution & Health. The first one in 2007 was presented at
the Annual Congress of the European Respiratory Society
at Stockholm and reveals the harmful health effects of CO,
SOx and NOx from fireworks.
10. The second is a detailed study on the amount of
Particulate Matter in various types of fireworks in India and
this was presented at the meeting of the European
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 31 of 54
Respiratory Society at Milan in 2017. This has since been
published in the European Respiratory Journal, and
examines the personal exposure levels of fireworks (as
against a general study of ambient air). In these isolated
and controlled circumstances, the exposure to PM2.5 was
found to be as high as 64,5000 u/m3."
29) From the aforesaid it can be gathered that when PM2.5 crosses
the normal limits, even if it remains in the air for few days, it
becomes severe health hazard thereby causing serious health
problems. Unfortunately such problems are virtually irreversible,
which means that a person whose health gets affected because
of this particulate has a long suffering. In view thereof, argument
in opposition that air quality that gets worsened during Diwali
remains only for few days would be of no consequence as even
in few days it causes severe harm to the health of the people, that
too for prolonged duration.
30) From the aforesaid discussion, the position can be summed up by
stating that though burning of crackers during Diwali is not the
only reason for worsening air quality, at the same time, it
definitely contributes to air pollution in a significant way. Again,
even when no studies are undertaken on long-term impact
thereof, the CPCB Committee, which did this exercise taking it as
a short-term project which was assigned to MAMC, has returned
a definite finding about deterioration in air quality during Diwali
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 32 of 54
because of burning of crackers. It has also shown that postDiwali
air pollution in 2017 was less compared to the 2016 Diwali
which was the result of lesser fireworks in 2017. This again
indicates a direct causal connection between burning crackers
during Diwali and air pollution. Another immediate effect of
burning of crackers is that it results in substantial increase in
PM2.5 level which is a very serious health hazard. In fact, this
results in severe noise pollution as well which has acute
psychological, mental and even physical affect on animals. In the
application seeking intervention and directions (IA No. 68897 of
2018) filed by Gauri Maulekhi, the applicant has placed on record
plethora of literature based on various studies depicting profound
affect of noise/sound on the health of animals, extending to their
neuroendocrine system, reproduction and development,
metabolism, cardiovascular health, cognition and sleep, audition,
immune system, DNA integrity and gene expression. Fireworks
sometimes results in temporary or permanent hearing impairment
in animals. Further, dogs are also known to display psychological
symptoms of stress during this time. So much so, fireworks has
traumatising affect even on birds. Deafening sound which the
crackers produce on bursting are known to disorient birds and
responsible for their displacement from their nests. Even the
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 33 of 54
respiratory system of the birds gets affected. Studies also show
that the sound of crackers has affect on milch cattle. As the cattle
is scared, adrenaline is released in its body which inhibits
oxytocin, a hormone which helps the milk cattle to release milk
thereby affecting the production of milk.
31) The aforesaid findings are sufficient to negate the arguments of
the opposite side that there is absence of scientific study about
the adverse affect of firecrackers during Diwali. In environmental
law, 'precautionary principle' is one of the well recognised
principles which is followed to save the environment. It is rightly
argued by the petitioners that this principle does not need exact
studies/material. The very word 'precautionary' indicates that
such a measure is taken by way of precaution which can be
resorted to even in the absence of definite studies. In Vellore
Citizens' Welfare Forum, this Court explained the principle in the
following manner:
"11. Some of the salient principles of “Sustainable
Development”, as culled out from Brundtland Report and
other international documents, are Inter-Generational
Equity, Use and Conservation of Natural Resources,
Environmental Protection, the Precautionary Principle,
Polluter Pays Principle, Obligation to Assist and Cooperate,
Eradication of Poverty and Financial Assistance to the
developing countries. We are, however, of the view that
“The Precautionary Principle” and “The Polluter Pays
Principle” are essential features of “Sustainable
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 34 of 54
Development”. The “Precautionary Principle” — in the
context of the municipal law — means:
(i) Environmental measures — by the State Government
and the statutory authorities — must anticipate, prevent
and attack the causes of environmental degradation.
(ii) 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.
(iii) The “onus of proof” is on the actor or the
developer/industrialist to show that his action is
environmentally benign.
xx xx xx
14. In view of the above-mentioned constitutional and
statutory provisions we have no hesitation in holding that
the Precautionary Principle and the Polluter Pays Principle
are part of the environmental law of the country.
15. Even otherwise once these principles are accepted as
part of the Customary International Law there would be no
difficulty in accepting them as part of the domestic law. It is
almost an accepted proposition of law that the rules of
Customary International Law which are not contrary to the
municipal law shall be deemed to have been incorporated
in the domestic law and shall be followed by the courts of
law. To support we may refer to Justice H.R. Khanna's
opinion in A.D.M. v. Shivakant Shukla, Jolly George
Varghese case and Gramophone Co. case.
16. The constitutional and statutory provisions protect a
person's right to fresh air, clean water and pollution-free
environment, but the source of the right is the inalienable
common law right of clean environment..."
32) The precautionary principle accepted in the aforesaid judgment
was further elaborated in A.P. Pollution Control Board's case
as under:
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 35 of 54
"31. The “uncertainty” of scientific proof and its changing
frontiers from time to time has led to great changes in
environmental concepts during the period between the
Stockholm Conference of 1972 and the Rio Conference of
1992. In Vellore Citizens' Welfare Forum v. Union of India a
three-Judge Bench of this Court referred to these changes,
to the “precautionary principle” and the new concept of
“burden of proof” in environmental matters. Kuldip Singh, J.
after referring to the principles evolved in various
international conferences and to the concept of
“sustainable development”, stated that the precautionary
principle, the polluter-pays principle and the special
concept of onus of proof have now emerged and govern
the law in our country too, as is clear from Articles 47, 48-A
and 51-A(g) of our Constitution and that, in fact, in the
various environmental statutes, such as the Water Act,
1974 and other statutes, including the Environment
(Protection) Act, 1986, these concepts are already implied.
The learned Judge declared that these principles have now
become part of our law. The relevant observations in the
Vellore case in this behalf read as follows: (SCC p. 660,
para 14)
“14. In view of the above-mentioned constitutional
and statutory provisions we have no hesitation in
holding that the precautionary principle and the
polluter-pays principle are part of the environmental
law of the country.”
(emphasis supplied)
The Court observed that even otherwise, the abovesaid
principles are accepted as part of the customary
international law and hence there should be no difficulty in
accepting them as part of our domestic law. In fact, on the
facts of the case before this Court, it was directed that the
authority to be appointed under Section 3(3) of the
Environment (Protection) Act, 1986
“shall implement the ‘precautionary principle’ and the
‘polluter-pays principle’”.
The learned Judges also observed that the new concept
which places the burden of proof on the developer or
industrialist who is proposing to alter the status quo, has
also become part of our environmental law.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 36 of 54
32. The Vellore judgment has referred to these principles
briefly but, in our view, it is necessary to explain their
meaning in more detail, so that courts and tribunals or
environmental authorities can properly apply the said
principles in the matters which come before them.
33. A basic shift in the approach to environmental
protection occurred initially between 1972 and 1982.
Earlier, the concept was based on the “assimilative
capacity” rule as revealed from Principle 6 of the
Stockholm Declaration of the U.N. Conference on Human
Environment, 1972. The said principle assumed that
science could provide policy-makers with the information
and means necessary to avoid encroaching upon the
capacity of the environment to assimilate impacts and it
presumed that relevant technical expertise would be
available when environmental harm was predicted and
there would be sufficient time to act in order to avoid such
harm. But in the 11th Principle of the U.N. General
Assembly Resolution on World Charter for Nature, 1982,
the emphasis shifted to the “precautionary principle”, and
this was reiterated in the Rio Conference of 1992 in its
Principle 15 which reads as follows:
“Principle 15.—In order to protect the environment,
the precautionary approach shall be widely applied
by States according to their capabilities. Where
there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a
reason for proposing cost-effective measures to
prevent environmental degradation.”
34. In regard to the cause for the emergence of this
principle, Charmian Barton, in the article earlier referred to
in Vol. 22, Harv. Envtt. L. Rev. (1998), p. 509 at p. 547
says:
“There is nothing to prevent decision-makers from
assessing the record and concluding that there is
inadequate information on which to reach a
determination. If it is not possible to make a
decision with ‘some’ confidence, then it makes
sense to err on the side of caution and prevent
activities that may cause serious or irreversible
harm. An informed decision can be made at a later
stage when additional data is available or
resources permit further research. To ensure that
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 37 of 54
greater caution is taken in environmental
management, implementation of the principle
through judicial and legislative means is
necessary.”
In other words, the inadequacies of science is the real
basis that has led to the precautionary principle of 1982. It
is based on the theory that it is better to err on the side of
caution and prevent environmental harm which may indeed
become irreversible.
35. The principle of precaution involves the anticipation of
environmental harm and taking measures to avoid it or to
choose the least environmentally harmful activity. It is
based on scientific uncertainty. Environmental protection
should not only aim at protecting health, property and
economic interest but also protect the environment for its
own sake. Precautionary duties must not only be triggered
by the suspicion of concrete danger but also by (justified)
concern or risk potential. The precautionary principle was
recommended by the UNEP Governing Council (1989).
The Bomako Convention also lowered the threshold at
which scientific evidence might require action by not
referring to “serious” or “irreversible” as adjectives
qualifying harm. However, summing up the legal status of
the precautionary principle, one commentator
characterised the principle as still “evolving” for though it is
accepted as part of the international customary law, “the
consequences of its application in any potential situation
will be influenced by the circumstances of each case”.
(See First Report of Dr Sreenivasa Rao Pemmaraju —
Special Rapporteur, International Law Commission dated
3-4-1998, paras 61 to 72.)."
33) In such cases which pertain to the protection of environment,
thrusting of 'onus of proof' on the developer/industrialist in
Vellore Citizens' Welfare Forum was also elaborated by the
Court in the following manner:
"36. We shall next elaborate the new concept of burden of
proof referred to in the Vellore case at p. 658. In that case,
Kuldip Singh, J. stated as follows: (SCC p. 658, para 11)
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 38 of 54
“(iii) The ‘onus of proof’ is on the actor or the
developer/industrialist to show that his action is
environmentally benign.”
37. It is to be noticed that while the inadequacies of
science have led to the “precautionary principle”, the said
“precautionary principle” in its turn, has led to the special
principle of burden of proof in environmental cases where
burden as to the absence of injurious effect of the actions
proposed, — is placed on those who want to change the
status quo [Wynne, Uncertainty and Environmental
Learning, 2 Global Envtl. Change 111 (1992) at p. 123].
This is often termed as a reversal of the burden of proof,
because otherwise in environmental cases, those opposing
the change would be compelled to shoulder the evidentiary
burden, a procedure which is not fair. Therefore, it is
necessary that the party attempting to preserve the status
quo by maintaining a less polluted state should not carry
the burden of proof and the party who wants to alter it,
must bear this burden. [See James M. Olson: “Shifting the
Burden of Proof”, 20 Envtl. Law, p. 891 at p. 898 (1990).]
[Quoted in Vol. 22 (1998), Harv. Env. Law Review, p. 509 at
pp. 519, 550.]
38. The precautionary principle suggests that where there
is an identifiable risk of serious or irreversible harm,
including, for example, extinction of species, widespread
toxic pollution in major threats to essential ecological
processes, it may be appropriate to place the burden of
proof on the person or entity proposing the activity that is
potentially harmful to the environment. (See Report of Dr
Sreenivasa Rao Pemmaraju, Special Rapporteur,
International Law Commission, dated 3-4-1998, para 61.)"
34) This brings us to the next argument which is predicated on Article
19(1)(g) of the Constitution. Mr. Shankarnarayanan had
submitted that principle of res extra commercium shall apply
inasmuch as firecrackers are a health hazard, the manufacturers
and traders thereof cannot claim any fundamental right to carry
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 39 of 54
on business in this field. Such a plea may not be tenable.
Therefore, it calls for a measure that would amount to a
reasonable restriction.
35) It may be stressed that in Vellore Citizens' Welfare Forum case,
this Court had banned the tanneries when it was found that they
were causing immense damage to the environment. Thus,
environment protection, which is a facet of Article 21, was given
supremacy over the right to carry on business enshrined in Article
19(1)(g). We state at the cost of repetition that right of health,
which is recognised as a facet of Article 21 of the Constitution
and, therefore, is a fundamental right, assumes greater
importance. It is not only the petitioners and other applicants who
have intervened in support of the petitioners but the issue
involves millions of persons living in Delhi and NCR, whose right
to health is at stake. However, for the time being, without going
into this debate in greater details, our endeavour is to strive at
balancing of two rights, namely, right of the petitioners under
Article 21 and right of the manufacturers and traders under Article
19(1)(g) of the Constitution.
36) Almost for the same reasons, argument predicated on Article 25
of the Constitution need not detain us. We proceed on the
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 40 of 54
assumption that burning of crackers during Diwali is a part of
religious practice. The question is as to whether it should be
allowed to be continued in the present form without any
regulatory measures, as a part of religious practice, even if it is
proving to be a serious health hazard. We feel that Article 25 is
subject to Article 21 and if a particular religious practice is
threatening the health and lives of people, such practice is not to
entitled to protection under Article 25. In any case, balancing can
be done here as well by allowing the practice subject to those
conditions which ensure nil or negligible effect on health.
37) We now deal with the argument that banning the sale of
firecrackers may lead to extreme economic hardship, namely, on
the one hand loss of substantial revenue and on the other hand
unemployment to lakhs of persons. This brings up the issue of
connect or relationship between the law and economics. This
aspect was considered by this Court in Shivashakti Sugars
Limited v. Shree Renuka Sugar Limited and Others, (2017) 7
SCC 729, and the relevant portion whereof is reproduced below:
"43...Interface between Law and Economics is much more
relevant in today's time when the country has ushered into
the era of economic liberalisation, which is also termed as
“globalisation” of economy. India is on the road of
economic growth. It has been a developing economy for
number of decades and all efforts are made, at all levels, to
ensure that it becomes a fully developed economy. Various
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 41 of 54
measures are taken in this behalf by the policy-makers.
The judicial wing, while undertaking the task of performing
its judicial function, is also required to perform its role in
this direction. It calls for an economic analysis of law
approach, most commonly referred to as “Law and
Economics” [ Richard A. Posner in his book Frontiers of
Legal Theory explains this concept as follows:“Economic
analysis of law has heuristic, descriptive and normative
aspects. As a heuristic, it seeks to display underlying
unities in legal doctrines and institutions; in its descriptive
mode, it seeks to identify the economic logic and effects of
doctrines and institutions and the economic causes of legal
change; in its normative aspect it advises Judges and other
policy-makers on the most efficient methods of regulating
conduct through law. The range of its subject-matter has
become wide, indeed all-encompassing. Exploiting
advances in the economics of nonmarket behaviour,
economic analysis of law has expanded far beyond its
original focus on antitrust, taxation, public utility regulation,
corporate finance, and other areas of explicitly economic
regulation. (And within that domain, it has expanded to
include such fields as property and contract law.) The
“new” economic analysis of law embraces such nonmarket,
or quasi-nonmarket, fields of law as tort law, family law,
criminal law, free speech, procedure, legislation, public
international law, the law of intellectual property, the rules
governing the trial and appellate process, environmental
law, the administrative process, the regulation of health and
safety, the laws forbidding discrimination in employment,
and social norms viewed as a source of, an obstacle to,
and a substitute for formal law.”Posner also mentioned that
this interface between Law and Economics might grandly
be called “Economic Theory of Law”, which is built on a
pioneering article by Ronald Coase [R.H. Coase, “The
Problem of Social Cost”, 3 Journal of Law and Economics
1 (1960)]:“The “Coase Theorem” holds that where market
transaction costs are zero, the law's initial assignment of
rights is irrelevant to efficiency, since if the assignment is
inefficient the parties will rectify it by a corrective
transaction. There are two important corollaries. The first is
that the law, to the extent interested in promoting economic
efficiency, should try to minimize transaction costs, for
example by defining property rights clearly, by making them
readily transferable, and by creating cheap and effective
remedies for breach of contract.…The second corollary of
the Coase Theorem is that where, despite the law's best
efforts, market transaction costs remain high, the law
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should simulate the market's allocation of resources by
assigning property rights to the highest-valued users. An
example is the fair-use doctrine of copyright law, which
allows writers to publish short quotations from a
copyrighted work without negotiating with the copyright
holder. The costs of such negotiations would usually be
prohibitive; if they were not prohibitive, the usual result
would be an agreement to permit the quotation, and so the
doctrine of fair use brings about the result that the market
would bring about if market transactions were feasible.”] .
In fact, in certain branches of Law there is a direct impact
of Economics and economic considerations play
predominant role, which are even recognised as legal
principles. Monopoly laws (popularly known as “Antitrust
Laws” in USA) have been transformed by Economics. The
issues arising in competition laws (which has replaced
monopoly laws) are decided primarily on economic
analysis of various provisions of the Competition
Commission Act. Similar approach is to be necessarily
adopted while interpreting bankruptcy laws or even matters
relating to corporate finance, etc. The impress of
Economics is strong while examining various facets of the
issues arising under the aforesaid laws. In fact, economic
evidence plays a big role even while deciding
environmental issues. There is a growing role of
Economics in contract, labour, tax, corporate and other
laws. Courts are increasingly receptive to economic
arguments while deciding these issues. In such an
environment it becomes the bounden duty of the Court to
have the economic analysis and economic impact of its
decisions."
38) Applying the aforesaid principle, in the first blush it may appear
that the aforesaid argument has substantial force in it. However,
that would be only one side of the picture as there are two contra
arguments which are sufficient to take the sheen out of the
aforesaid plea. First aspect is that the argument of economic
hardship is pitched against right to health and life. When the
Court is called upon to protect the right to life, economic effect of
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 43 of 54
a particular measure for the protection of such right to health will
have to give way to this fundamental right. Second factor, which
is equally important, is that the economic loss to the State is
pitched against the economic loss in the form of cost of treatment
for treating the ailments with which people suffer as a result of
burning of these crackers. Health hazards in the form of various
diseases that are the direct result of burning of crackers have
already been noted above. It leads to asthma, coughing,
bronchitis, retarded nervous system breakdown and even
cognitive impairment. Some of the diseases continue on a
prolonged basis. Some of these which are caused because of
high level of PM2.5 are even irreversible. In such cases, patients
may have to continue to get the medical treatment for much
longer period and even for life. Though there are no statistics as
to what would be the cost for treating such diseases which are as
a direct consequence of fireworks on these occasions like Diwali,
it can safely be said that this may also be substantial. It may be
more than the revenue which is generated from the
manufacturers of the crackers. However, we say no more for
want of precise statistical data in this behalf.
39) With this, we come to the most important issue, viz. whether there
has to be a complete ban on display of fireworks during Diwali or
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 44 of 54
it can be controlled/regulated in a manner which may not result
into air pollution or may be least intrusive.
40) It would be significant to mention at this stage that there have
been lots of efforts for production of firecrackers which do not
contain harmful chemicals and thereby not causing air pollution,
which are even termed as 'Green Crackers'. The Union of India
was asked to delve on this aspect. In fact, during the hearing of
this matter, order was passed on August 14, 2018 giving direction
to respondent No.1 to give its complete suggestions to deal with
the problems and issues involved which have been recapitulated
above. This order reads as under:
"Further arguments heard in these matters. Arguments
have not been concluded.
We are of the opinion that Union of India/Ministry of
Environment should come out with its concrete suggestions
to deal with problems and issues which are involved in
these petitions and what short term measures can be
adopted to tackle the pollution problem which occurs due to
firecrackers during Diwali. Such affidavit shall be filed by
or before next date of hearing.
List on 21.8.2018."
41) Pursuant to the aforesaid direction, respondent No.1 has filed its
affidavit on August 21, 2018. This affidavit sates that the Ministry
consulted : (i) The Council of Scientific & Industrial Research
(CSIR) - National Environment Engineering Research Institute
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(NEERI), (ii) PESO, and (iii) CPCB regarding concrete solutions
and short-term measures to be adopted to tackle the pollution
problem which occurs due to firecrackers during Diwali.
Suggestions are received from the aforesaid bodies which are
annexed as Annexures R-1, R-2 and R-3 respectively. Based on
those suggestions, the Ministry has given the following short-term
measures/actions which it proposes to tackle the pollution
problem due to firecrackers during forthcoming Diwali in
November 2018:
“I. To address issue of high contents of unburnt material
or partially combusted material due to usage of poor
quality of raw material, Raw Material Characterisation
Facilities shall be established to maintain quality of the
raw materials in gun powder and flash powder as per
specifications of PESO. Testing of raw materials shall
be initiated at CSIR - Kaliswari Joint Facility or PESO
or any of the other manufacturer with requisite
facilities.
II. Use of Reduced Emission firecrackers (Improved
crackers) - (a) Avoidance of use of ash as desiccant or
filler materials in crackers for reduction in particulate
mater by 15-20%. These can be implemented subject
to approval by PESO, and (b) usage of charcoal
meeting specifications of explosives and pyrotechnics
as prescribed by PESO.
III. Use of Reduced Emission firecrackers (Green
crackers: Safe water and air sprinklers (SWAS) - Low
emission sound and light emitting functional crackers
with PM reduction by 30-35% and significant reduction
in NOx and SO2 due to in-situ water generation as
dust suppressant and low cost due to usage of low
cost oxidants. These can be implemented subject to
approval by PESO.
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IV. PESO will ensure fireworks with permitted chemicals
only to be purchased/possessed/sold/used during
Diwali and shall test and check for the presence of
banned chemicals like lithium/arsenic/antimony/lead/
mercury. PESO will ensure suspension of the
licenses of manufacturers of such fireworks items and
appropriate disposal of such stock.
V. PESO will ensure that only those crackers whose
decibel (sound) level are within the limits are allowed
in the market and will ensure to take action by
suspending the licenses of the manufacturers on such
violations and disposal of such lots.
VI. Diwali data of 2017 shows that average PM2.5 was
604 ug/m3, whereas, Aluminum and Barium in PM2.5
were 159 ug/m3 (about 4 times of AAQCVs) wand 35
ug/m3 (about 9 times of AAQCVs) respectively. Iron
was well within the prescribed limits. Aluminum is
used as fuel in fireworks in and to give white brilliant
sparkle. Ba is added to give only attractive green
colour which is not essential for pyrotechnics.
Aluminum may cause dermatitis and having bioaccumulation
potential in case of long exposure. Ba
salts emit poisonous gas causing respiratory problem
in short-term exposure too and may have other health
complications in long-term exposure. Therefore, as
immediate measure, baning of Barium salts in
fireworks may be considered. PESO may be asked to
review the chemical composition of fireworks,
particularly reducing Aluminum content.
VII. CPCB and respective State Pollution Control Boards/
Pollution Control Committees (SPCBs/PCCs) of the
States and Union Territories shall carry out short-term
monitoring in their cities for 14 days (commencing
from 7 days prior to Diwali and ending 7 days after
Diwali) for the parameters namely, Aluminum, Barium,
Iron apart from the regulatory parameters against the
short-term Ambient Air Quality Criteria Values
(AAQCVs) proposed by CPCB with regard to bursting
of firecrackers. This will help in generation of data on
pollution caused by the bursting of firecrackers and
would be helpful for regulation and control quantity of
Aluminum, Barium and Iron used in the manufacture
of firecrackers.
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VIII. The manufacture, sale and use of joined firecrackers
(series crackers or laris) may be banned as the same
causes huge air, noise and solid waste problems.
IX. Major Indian cities may explore the option of
community firecracking with strict time restriction as
adopted in some countries. Other restriction that can
be explored include - bursting of firecrackers may be
allowed only in the areas/fields pre-identified and predesignated
by respective State Governments.
X. Extensive public awareness campaigns shall be taken
up by the Central Government/State Governments/
Schools/Colleges informing the public about the
harmful effects of firecrackers."
42) We are of the opinion that the aforesaid suggestions strive a nice
balance between the two competing interests. We accept the
aforesaid measures as suggested by the Union of India and direct
the Union of India and other concerned authorities to implement
the same with immediate effect. In view thereof, following
specific directions are issued:
(i) The crackers with reduced emission (improved crackers)
and green crackers, as mentioned in Suggestion Nos. II
and III above only would be permitted to be manufactured
and sold.
(ii) As a consequence, production and sale of crackers other
than those mentioned in Suggestion Nos. II and III is
hereby banned.
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 48 of 54
(iii) The manufacture, sale and use of joined firecrackers
(series crackers or laris) is hereby banned as the same
causes huge air, noise and solid waste problems.
(iv) The sale shall only be through licensed traders and it shall
be ensured that these licensed traders are selling those
firecrackers which are permitted by this order.
(v) No e-commerce websites, including Flipkart, Amazon etc.,
shall accept any online orders and effect online sales. Any
such e-commerce companies found selling crackers online
will be hauled up for contempt of court and the Court may
also pass, in that eventuality, orders of monetary penalties
as well.
(vi) Barium salts in the fireworks is also hereby banned.
(vii) PESO is directed to review the clinical composition of
fireworks, particularly reducing Aluminum content, and
shall submit its report in respect thereof within a period of
two weeks from today. For undertaking this exercise,
PESO would also associate FRDC.
(viii) Even those crackers which have already been produced
and they do not fulfill the conditions mentioned in
Suggestion Nos. II and III above will not be allowed to be
sold in Delhi and NCR.
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(ix) PESO will ensure fireworks with permitted chemicals only
to be purchased/possessed/sold/used during Diwali and all
other religious festivals, of any religion whatsoever, and
other occasions like marriages, etc. It shall test and check
for the presence of banned chemicals like Lithium/Arsenic/
Antimony/Lead/Mercury.
(x) PESO will ensure suspension of the licenses of
manufacturers of such fireworks items and appropriate
disposal of such stock.
(xi) PESO will ensure that only those crackers whose decibel
(sound) level are within the limits are allowed in the market
and will ensure to take action by suspending the licenses
of the manufacturers on such violations and disposal of
such lots. To add to it, as mentioned in the order dated
September 12, 2017, the directions issued and restrictions
imposed in the order passed by this Court on July 18, 2005
in Noise Pollution (V) shall continue to be in force.
(xii) Direction Nos. 4 to 9 and 11 contained in the order dated
September 12, 2017 shall continue to operate and are
reiterated again.
(xiii) Extensive public awareness campaigns shall be taken up
by the Central Government/State Governments/Schools/
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Colleges informing the public about the harmful effects of
firecrackers.
(xiv) On Diwali days or on any other festivals like Gurpurab etc.,
when such fireworks generally take place, it would strictly
be from 8:00 p.m. till 10:00 p.m. only. On Christmas even
and New Year eve, when such fireworks start around
midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till
12:30 a.m. only.
(xv) The Union of India, Government of NCT of Delhi and the
State Governments of the NCR would permit community
firecracking only (for Diwali and other festivals etc. as
mentioned above), wherever it can be done. For this
purpose, particular area/fields would be pre-identified and
predesignated by the concerned authorities. This exercise
shall be completed within a period of one week from today
so that the public at large is informed about the designated
places one week before Diwali. The areas designated now
for the purpose of Diwali shall be valid for community
firecracking on other occasions/festivals as well, as
mentioned above. Even for marriages and other
occasions, sale of improved crackers and green crackers is
only permitted.
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Insofar as other States are concerned, an endeavour
shall be made by them also to explore the feasibility of
community firecracking. However, it is made clear that
Direction No. (xiv) pertaining to the duration within which
fireworks can take place on all such occasions would be
applicable throughout India. Similarly, Direction No. (xiii)
for extensive public awareness campaigns is also a pan
India direction.
(xvi) All the official respondents, and particularly the Police,
shall ensure that fireworks take place only during the
designated time and at designated places, as mentioned
above. They shall also ensure that there is no sale of
banned firecrackers. In case any violation is found, the
Station House Officer (SHO) of the concerned Police
Station of the area shall be held personally liable for such
violation and this would amount to committing contempt of
the Court, for which such SHO(s) would be proceeded
against.
(xvii) CPCB and respective State Pollution Control Boards/
Pollution Control Committees (SPCBs/PCCs) of the States
and Union Territories shall carry out short-term monitoring
in their cities for 14 days (commencing from 7 days prior to
IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 52 of 54
Diwali and ending 7 days after Diwali) for the parameters
namely, Aluminum, Barium, Iron apart from the regulatory
parameters against the short-term Ambient Air Quality
Criteria Values (AAQCVs) proposed by CPCB with regard
to bursting of firecrackers. This will help in generation of
data on pollution caused by the bursting of firecrackers and
would be helpful for regulation and control quantity of
Aluminum, Barium and Iron used in the manufacture of
firecrackers.
43) One clarification needs to be given at this stage. Our discussion
pertaining to the arguments based on Article 19(1)(g), Article 25
as well as the argument of loss of substantial revenue and
unemployment, in cases the manufacture and sale of the
firecrackers is totally banned, is prima facie and we have not
given our conclusive determination. It is because of want of
detailed studies on various aspects which have been mentioned
and taken note of during discussion in this order. However, we
also make it clear that, prima facie, we do not find much merit in
these arguments for which we have given our reasons in brief.
44) Having regard to the overall circumstances, we have decided
that, for the time being, a balanced approach to tackle this
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problem is needed, which may take care of the concerns of both
the parties and, at the same time, provide a reasonable and
adequate solution. When the picture would become clearer after
the requisite studies/research is undertaken, more stringent
measures can be adopted in future if the situation so warrants.
45) All the interlocutory applications seeking impleadment,
intervention, directions, modification, etc. are disposed of in the
aforesaid terms.
46) The writ petitions be listed on December 11, 2018.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
OCTOBER 23, 2018.
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