No blanket ban on the display of firecrackers during Diwali, however, in order to curb the pollution, the same needs to be done in a controlled manner
|Case name:||Arjun Gopal & Ors. V/s Union of India & Ors.|
|Case number:||Writ Petition (Civil) Number-728 of 2015|
|Court:||The Supreme Court of India|
|Bench:||Justice A.K. Sikri, Justice Ashok Bhushan|
|Decided on:||October 23, 2018|
|Relevant Act/Sections:||Article 19(1) (g), 21, 25 of the Constitution of India, 1950, Rule 118 of the Explosive Rules, 20008, The Explosives Act, 1884|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- The present writ petition was filed by the fathers of three infants because they were concerned about their health. According to them there is severe air pollution in the city of Delhi which has various health hazards like aggravation of asthma, coughing, bronchitis, retarded nervous system breakdown, cognitive impairment etc. It was accepted that there are various causes of pollution but the indiscriminate use of firecrackers during the time of Diwali was the main reason for the degradation of the air quality during that time.
- The petitioners have, thus, prayed for issuing directions to the respondents for taking steps to strike at the causes of pollution and for banning the use of firecrackers in any form, during festivals or otherwise.
- This petition was taken up along with certain other connected petitions and interlocutory applications and interim orders dated November 16, 2016 were passed with a view to curb the air pollution in Delhi and NCR. The Court while issuing the interim orders exercised the powers given by Rule 118 of the Explosive Rules, 2008, framed under the Explosives Act, 1884, and suspended the licenses of sale of fireworks, wholesale and retail within the territory of NCR till any further order of this court and also stated that no such licenses shall be granted or renewed till further orders.
- Later on the manufacturers of firecrackers as well as license holders filed applications for modification of the aforesaid interim order. By order dated September 12, 2017 the court removed the absolute ban on the sale of firecrackers and lifted the suspension of the permanent licenses for sale of the crackers as it was noticed that bursting of crackers during Diwali was not the sole cause of increasing the pollution during that time.
- After the aforesaid order was passed, many applications were filed, from both sides, seeking modification of some of the aforesaid directions. The petitioners prayed for the restoration of the order dated November 11, 2016 whereas the fireworks manufacturers, traders and license holders of the fireworks/firecrackers wanted that relaxation given in the order dated September 12, 2017 be further liberalized.
- ISSUE BEFORE THE COURT:
- Whether there must be a complete ban on the display of fireworks during Diwali or it can be regulated in a manner which may not result into air pollution or may be least intrusive?
- Whether the fundamental right of businessmen & traders under Article 19(1)(g) and Article 25 violated by ban of firecrackers and whether such rights supersede the fundamental right guaranteed under Article 21 of the Indian Constitution ?
- RATIO OF THE COURT:
- The court observed that the study conducted by Central Pollution Control Board (CPCB) showed that there was an increase in cough, breathlessness and eye problem cases during Diwali. Also high levels of metals that are used in manufacturing firecrackers were found in the urine samples of many subjects. Air quality did worsen during Diwali as on Diwali day, both PM10 and PM2.5 had increased by 2-3.5 times as compared to other days. When PM2.5 crosses the normal limits, even if it remains in the air for few days, it has severe health hazards and thus causes serious health problems which are irreversible. Bursting of crackers also results into noise pollution which has acute psychological, mental and physical affect on animals and birds. It is true that bursting of crackers during Diwali is not the only factor causing air pollution and there are various other factors like vehicular pollution, crop burning, unregulated construction activities etc, that are also responsible for air pollution but bursting of crackers contributes to air pollution in a significant way. The above findings are sufficient to negate the arguments of the respondents that there is absence of scientific study about the adverse affect of firecrackers during Diwali.
- The court held that the ‘precautionary principle’ that is covered by the environmental law of the country does not require detailed studies. The precautionary principle has been accepted as a part of the customary international law and since it is not contrary to our Municipal laws it must be followed by the courts in India. The very word precautionary’ indicates that measures to save the environment can be taken in the form of precautions even in the absence of definite studies. In Vellore Citizens’ Welfare Forum case with respect to the ‘precautionary principle’ it was held that the State Government and other statutory authorities must anticipate, prevent and attack the causes of environmental degradation and where there is a threat of serious and irreversible damage, and lack of scientific certainty should not be used as a reason for postponing the measures to prevent environmental degradation. The burden of proof is on the actor to show that his act is environmental friendly.
- It was the petitioners stand that ban on firecrackers during Diwali would amount to a reasonable restriction on such manufactures and traders right under Article 19(1) (g) whereas the respondents contended their right to carry on business and trade as contained in Article 19(1)(g) cannot be curtailed in the absence of any detailed study indicating that the air quality worsens during the time of Diwali because of burning of crackers. On this point it was observed that in Vellore Citizens’ Welfare Forum it was said that environment protection, is a facet of Article 21 and it must be given supremacy over the right to carry on business enshrined in Article 19(1) (g).
- Regarding the claims of the respondents that burning of firecrackers during Diwali was a religious practice it was sated that Article 25 is subject to Article 21 and if a particular religious practice poses a threat to the health and lives of people then such a practice cannot be protected by Article 25.
- With regard to the respondents argument that banning the sale of firecrackers would cause loss of revenue and would also lead to unemployment of lakhs of people it was opined that when the Court is called upon to protect the right to life, economic effect of a particular activity for the protection of such right to health will have to give way to this fundamental right. When economic loss to the state is pitched against the economic loss in the form of cost of treating the diseases which people suffer because of burning of crackers, then even in the absence of data showing the exact cost incurred by the patients it can be said that the cost of treatment is much higher than the revenue generated by the manufacturers and traders of the crackers. This is because some of these diseases are irreversible and continue for a very long time.
- The Union of India gave the following suggestions for tackling the problem of air pollution caused by the burning of crackers during Diwali:
- Raw Material Characterization Facilities shall be established to maintain the quality of raw materials used in firecrackers as per the specifications of Petroleum and Explosives Safety Organization (PESO) and the testing of raw materials shall be undertaken by Council of Scientific & Industrial Research (CSIR) or PESO.
- Only the use of reduced emission crackers that avoid use of ash as desiccant or filler materials shall be permitted as they help in reduction of particulate matter by 15-20%.
- Only the use of green crackers i.e. crackers with low sound and light emission that result in PM reduction by 30-35% and significant reduction in nitrogen oxide and sulphur dioxide shall be permitted.
- PESO must ensure that only the fireworks with permitted chemicals are being purchased/possessed/sold/used during Diwali and all other religious festivals and other occasions like marriages, etc. and shall also test and check for the presence of banned chemicals like lithium/arsenic/antimony/lead/ mercury. It must also review the chemical composition of firecrackers, particularly reducing Aluminum content. If the crackers are found to be in violation of the limitations that have been prescribed then PESO shall take appropriate steps for the suspension of the licenses of manufacturers of such fireworks and disposal of such stock.
- PESO must also ensure that only those crackers whose sound level is within the limits are allowed in the market and in case of violations shall take necessary steps for cancellation of licenses and disposal of such lots.
- 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 regulating the quantity of Aluminum, Barium and Iron used in the manufacture of firecrackers.
- The manufacture, sale and use of joined or series firecrackers be banned as the same causes huge air, noise and solid waste problems.
- Only community fire cracking be permitted and for this the bursting of firecrackers may be allowed only in the areas/fields that have been pre-identified by the respective State Governments.
- Extensive public awareness campaigns shall be undertaken by the Central and State Governments/Schools/Colleges informing the public about the harmful effects of firecrackers.
- This court accepted all these suggestions and in addition to the above suggestions issued the following directions:
- Only the crackers with reduced emission and green crackers, as mentioned in Suggestion Nos. II and III be permitted to be manufactured and sold and production and sale of any type of cracker other than those mentioned in Suggestion Nos. II and III was banned. Even those crackers which have already been produced and do not fulfill the conditions mentioned in Suggestion Nos. II and III above will not be allowed to be sold in Delhi and NCR.
- 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.
- 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 punished for contempt of court and the Court may also impose fine.
- On Diwali days or on any other festivals like Gurpurab etc, bursting of crackers shall be allowed only from 8:00 p.m. till 10:00 p.m. On Christmas 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.
- In Delhi and NCR, only community fire cracking shall be permitted and for this the concerned authorities shall pre- identify the area/fields.
- With respect to other states an attempt shall be made to explore the feasibility of community fire cracking. However, the directions related to the duration within which fireworks can take place on all such occasions and conducting public awareness campaigns shall be applicable throughout India.
- Use of barium salts in fireworks was also banned.
- All the official authorities in the case and particularly the Police must ensure that fireworks take place only during the designated time and at designated places and that there is no sale of banned crackers. In case any violation 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, and action may also be taken against such SHO(s).
- Further, the court was of the view that on Diwali, bursting of crackers shall be allowed only from 8:00 p.m. till 10:00 p.m. in whole of India.
- DECISION HELD BY COURT:
- In this case the judgement was given by JUSTICE A.K. SIKRI thatit was held that for the time being the above suggestions shall be accepted as they help in achieving a good balance between the two competing interests and at the same time provides reasonable solutions for the above-mentioned problems. All the interlocutory applications seeking intervention, directions, modification, etc. were disposed of and the writ petitions were listed on December 11, 2018.
- Dealing with the issue of loss of revenue and unemployment due to such ban, court gave no conclusive determination with regard to such arguments because of lack of detailed studies on various aspects.
- Court further held that Article 25 is subject to Article 21 of Constitution so Article 21 would be given preference over Article 19(1)(g) and Article 25 in the instant case.
- All the interlocutory applications seeking impleadment, intervention, directions, modification, etc. are disposed of in the aforesaid terms.