ARJUN GOPAL AND OTHERS versus UNION OF INDIA AND OTHERS on 23 October 2018

SUPREME COURT REPORTS[2018] 13 S.C.R. 464

[2018] 13 S.C.R.

AARJUN GOPAL AND OTHERS

v.

UNION OF INDIA AND OTHERS

(IA Nos. 6 and 8 of 2016, IA Nos. 10, 11, 80176, 96202, 109668,B109720 and 122778 of 2017, IA Nos. 68888 and 68897 of 2018)

in

(Writ Petition (Civil) No. 728 of 2015)

OCTOBER 23, 2018

C[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]

Environment – Air Pollution – Petitioners prayed for directionsto the respondents to take possible measures for checking thepollution by striking at the causes of the pollution, which includedbanning the use of firecrackers, sparkles and minor explosives, in Dany form, during festivals or otherwise – The following specificdirections were issued: (1) Crackers with reduced emission (improvedcrackers) and green crackers only would be permitted to bemanufactured and sold; (2) Production and sale of other crackersis hereby banned; (3) Manufacture, sale and use of joinedfirecrackers (series crackers or laris) is hereby banned; (4) SaleEshall only be through licensed traders; (5) no e-commerce websites,including flipkart, amazon etc., shall accept any online orders andeffect online sales; (6) barium salts in the fireworks is also herebybanned; (7) Petroleum and Explosives Safety Organisation (PESO)is directed to review the clinical composition of fireworks,Fparticularly reducing aluminum content – For undertaking thisexercise, PESO would also associate Fireworks Research andDevelopment Centre (FRDC); (8) even those crackers which havealready been produced and they do not fulfill the reduced emissionfirecrackers conditions will not be allowed to be sold in Delhi andNCR; (9) PESO will ensure fireworks with permitted chemicals onlyGto be purchased/possessed/sold/used during Diwali and all otherreligious festivals, of any religion whatsoever, and other occasionslike marriages, etc – It shall test and check for the presence ofbanned chemicals like Lithium/Arsenic/ Antimony/Lead/Mercury;(10) PESO will ensure suspension of the licenses of manufacturersHof such fireworks items and appropriate disposal of such stock;

(11) PESO will ensure that only those crackers whose decibel(sound) level are within the limits are allowed in the market and willensure to take action by suspending the licenses of the manufacturerson such violations and disposal of such lots; (12) Extensive publicawareness campaigns shall be taken up by the Central Government/State Governments/Schools/ Colleges informing the public aboutthe harmful effects of firecrackers; (13) On Diwali days or on anyother festivals like Gurpurab etc., when such fireworks generallytake place, it would strictly be from 8:00 p.m. till 10:00 p.m. only –On Christmas eve and New Year eve, when such fireworks startaround midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till12:30 a.m. only; (14) The Union of India, Government of NCT ofDelhi and the State Governments of the NCR would permit communityfirecracking only for Diwali and some other festivals, wherever itcan be done – Even for marriages and other occasions, sale ofonly improved crackers and green crackers is permitted – Insofaras other States are concerned, an endeavour shall be made by themalso to explore the feasibility of community firecracking; (15) Allthe official respondents, and particularly the Police, shall ensurethat fireworks take place only during the designated time and atdesignated places, as mentioned above – They shall also ensurethat there is no sale of banned firecrackers; (16) Central PollutionControl Board (CPCB) and respective State Pollution Control Boards/Pollution Control Committees (SPCBs/PCCs) of the States and UnionTerritories shall carry out short-term monitoring in their cities for14 days (commencing from 7 days prior to Diwali and ending 7days after Diwali) for the parameters namely, Aluminum, Barium,Iron apart from the regulatory parameters against the short-termAmbient Air Quality Criteria Values (AAQCVs) proposed by CPCBwith regard to bursting of firecrackers.

Vellore Citizens’ Welfare Forum v. Union of India andOthers(1996) 5 SCC 647 : [1996] 5 Suppl. SCR241 ; A.P. Pollution Control Board v. Prof. M.V. Nayudu(Retd.) and Others (1999) 2 SCC 718 : [1999] 1 SCR235 ; Noise Pollution (V), in Re (2005) 5 SCC 733 :[2005] 1 Suppl. SCR 624 ; Shivashakti Sugars Limitedv. Shree Renuka Sugar Limited and Others (2017) 7SCC 729 – referred to.

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Case Law Reference

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 of2015C

Under Article 32 of the Constitution of India WITH

Writ Petition (Civil) Nos. 891, 895, 899 of 2016 and 213 of 2017.

A. N. S. Nadkarni, ASG, Anil Grover, AAG, Ms. Vibha DuttaDMakhija, Shekhar Naphade, Dhruv Mehta, Ajit Kumar Sinha, Sr. Advs.,Gopal Sankaranarayanan, Ms. Pooja Dhar, Amit Bhandari, Ms. HaripriyaPadmanabhan, Ms. Shery Patnaik, Ms. Ashiwariy Kane, Ms. VeeraMahuli, Ms. Astha Sharma, Anubhav Kumar, Abhishek Swarup, AnkitAgarwal, Ms. Disha Vaish, Vinodh Kanna B., A. Sriram, Abhikalp PratapESingh, Prateek Rusia, M/s. Corporate Law Group, Mrs. Sarla Chandra,Vijay Panjwani, Rahul Mehra, Chirag M. Shroff, Ms. Neha Sangwan,Ms. Charu Wali Khanna, Ms. Sanjana Nangi, Ms. Rohini Musa, AbhishekGupta, Zaffar Inayat, D. R. Raghunath, Mrs. V. D. Khanna, Anish R.Shah, Ms. Aishwarya Bhati, Prakash Gautam, Shashank Shekhar Singh,Sachin Mittal, Sagar Kothari, Ms. Mansi Bhatia, Pawan Sharma, YoginderFHandoo, Bijender Singh Chaudhary, Hitesh Kumar Sharma, S. K. Rajora,Vijay Partap Singh, Dr. Kailash Chand, Ms. Garima Bajaj, Ms. AakanshaKaul, M. A. Chinnasamy, Ms. C. Rubavathi, P. Raja Ram, S. PeerMohamad, V. Senthil Kumar, Ms. Supriya Juneja, Ms.Adihja Singla,Bharat Monga, Ms. M. K. Aswaihi, S. Manoj Selyaraj, Dr. Arvind Kumar,GMs. Nancy Mittal, Ashok Kumar Gupta II, Suvidutt M. S., Mohinder JitSingh, S. K. Verma, Yugandhara Pawar Jha, Ms. Uttara Babbar,Ms. Bhavana Duhoon, Ms. Deboshree Kukherjee, Shyam Kumar, SanjayKumar Visen, D. N. Goburdhun, W. A. Qadri, M. P. Gupta,Ms. Pallavi Chopra, G. S. Makker, Ms. Pallavi C., Baijnath Patel, RiteshKumar, Ms. Suhasini Sen, Ms. Kiran Bhardwaj, B. V. Balaram Das,H

M. Yoesh Kanna, Ms. Sujatha Bagadhi, S. Partha Sarathi, Aviral Saxena,Sandeep Singh, Sanjay Kumar Tyagi, J. Sai Deepak, Vinesh K. Sharma,Ashutosh Nagar, Pradeep Misra, Daleep Dhyani, Suraj Singh, ChandanKumar, Gaurang Kanth, Ms. Vandana Sehgal, Advs. for the appearingparties.

Applicant-in-person.

The Judgment of the Court was delivered by

A. K. SIKRI, J. Writ Petition (Civil) No. 728 of 2015 was filedon September 24, 2015 on behalf of three infants, who are madepetitioners in this writ petition. Petitioner No.1 and 2, on the date offiling of this writ petition, were six months old and petitioner No.3 wasfourteen months old. This petition has been filed through their nextfriends, i.e. their fathers, who are concerned about the health of theirchildren as they feel that due to the alarming degradation of the airquality, leading to severe air pollution in the city of Delhi (where thesepetitioners 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 aremuch more vulnerable to air pollutants as exposure thereto may affectthem in various ways, including aggravation of asthma, coughing,bronchitis, retarded nervous system breakdown and even cognitiveimpairment. The petition accepts that there are number of reasons whichhave contributed to poor air quality in Delhi and National Capital Region(for short, ‘NCR’). At the same time, it is emphasised that air pollutionhits its nadir during Diwali time because of indiscriminate use offirecrackers, the chemical composition whereof increases harmfulparticulate matters such as PM2.5 or PM10 at alarming level therebybringing the situation of ‘emergency’. The petitioners have, thus, prayedfor direction to the official respondents to take possible measures forchecking the pollution by stricking at the causes of the pollution, whichincludes seasonal crop burning, indiscriminate dumping of dust/malbaand other pollutants, etc. The prayer also includes banning the use, inany 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 A

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AOctober 16, 2015 at 2:00 p.m. since the petitioners wanted stay on burningof crackers during Diwali, which was around the corner in that year.When the matter was taken up on October 16, 2015, certain suggestionswere made by the learned counsel appearing for the petitioners, whichwere as under:

B“1. Restrict licenses to low hazard fireworks.

2. Period of grant of license is too early – need not be from 2 daysprior to Dussehra.

3. Restrict window for use of fireworks to be from 7:00 p.m. toC9:00 p.m.

4. RWAs to hold community fireworks for a brief period of 30minutes on a single day.

5. Government be directed to give wide publicity to the ill effectsof fireworks and encourage restraint on responsible use.

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6. Encourage teachers to tell students not to buy and usefireworks.”

3. Suggestion Nos. 5 and 6 were accepted and the relevant portionof the order that was passed reads as under:

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“In our view for the present, if we accept suggestion Nos. 5 and6 it will not in any way affect the interest of the respondents.

Shri Ranjit Kumar, learned Solicitor General appearing forthe Union of India states that the Union Government has alreadyFtaken enough and effective steps to give wide publicity to the illeffects of fireworks.

In spite of the submission so made by the learned SolicitorGeneral, we intend to pass the following order:

“The Union Government and all the State Governments willGgive wide publicity both in print and Electronic media to the illeffects of fireworks and advise people accordingly.

We also direct the Teachers/Lecturers/Assistant Professors/Professors of the Schools and Colleges to educate the studentsabout the ill effects of the fireworks.””H

4. Thereafter, this petition was taken up along with certain otherconnected petitions, including Writ Petition (Civil) No. 13029 of 1985titled ‘M.C. Mehta v. Union of India’ and orders dated December 16,2015 were passed issuing several directions with a view to reducing thelevels of air pollution within the NCR, as the issues in those writ petitionspertained to air pollution in Delhi and NCR as well. It may be mentionedthat the directions issued therein were general in nature though concerningthe problem of air pollution. Thereafter also the instant writ petition,along with the M.C. Mehta case and other cases, came up for hearingand it is not necessary to take note of all those orders.

5. Pertinently, during Diwali of 2016, which was celebrated onOctober 30, 2016, the air quality in Delhi and NCR worsened alarmingly.In fact, certain reports indicated that the air quality standards in earlyNovember of that year were the worst in the world. This prompted theCourt to take up IA No.4 filed in this writ petition. After hearing theparties, it passed orders dated November 11, 2016.

6. The petitioners had pressed for interim relief in respect offireworks, drawing the attention of this Court to the emergent situationthat has resulted in worsening the air quality standards in Delhi andNational Capital Region (NCR) because of extensive use of fireworks,including firecrackers during Diwali last year. It was pointed out thatonset of winter itself deteriorates air quality in this region and it getsaggravated because of festival/marriage season that occurs during thesevery months. Taking note of the aforesaid factors, particularly impactof fireworks on the ambient air and unhealthy effects thereof which hadcreated unprecedented situation in Delhi, with air pollution going up atalarming levels and making it the most polluted city in the world, theorder dated November 11, 2016 was passed. Air pollution had gone upto 29 times above the World Health Organisation (WHO) standards. Inthe aforesaid scenario, this Court deemed it proper to pass certaindirections vide its order dated November 11, 2016 in IA No.4. Snappingthe supply chain of fireworks was considered to be the more practicalway of addressing the menace instead of banning the burning the crackersby individuals as it would have been difficult to monitor and enforce theburning of the crackers by the citizenry.

7. In paragraph 18 of the Order dated November 11, 2016 it wasclarified that much was left to be heard, discussed and said about therival claims and contentions. However, the Court hastened to add that A

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Aharmful effects of fireworks on the ambient air and the lungs, eyes andears of people was also an acknowledged fact, as can be seen from thefollowing 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 rivalBclaims and contentions. What is however indisputable is that theharmful effects of fireworks on the ambient air and the lungs,eyes and ears of people. What is also obvious is the extremenuisance, noise the fireworks cause to citizens particularly theailing and the aged. Therefore, though much can be argued asalways about the significance and even joy of bursting fireworks,Cbut at the same time (sic), prima facie, a just constitutionalbalance must overwhelmingly prioritize the harmful effects of thishazardous air on present and future generations, irreversible andimperceptible as they are, over the immediate commercialconstraints of the manufacturers and suppliers of fireworks…”

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8. In the process, this Court also recognised the duty of the Stateto ensure a healthy environment in terms of Article 48A of the Constitutionof India as well as the duty of the citizens to ensure the same underArticle 51A(g) of the Constitution. The Court also reminded itself of the“precautionary principle” which mandates that where there are threatsEof serious and irreversible damage, lack of scientific certainty should notbe used as a reason for postponing measures to prevent environmentaldegradation. In the order the Court had taken note of the deleteriouseffects of air pollution on the health of the people, particularly the children.Going by all these considerations, the Court passed the followingdirections:

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“19. We thus consider it inappropriate that explosives which areused as fireworks should be available in the market in the NCRtill further orders. The mechanism of the law in this regard isclear. Rule 118 of the Explosive Rules, 2008, framed under theExplosives Act, 1884, provides for the manner in which licensesGissued under the Explosives Act to store and sell explosives couldbe suspended or cancelled. Sub-Rule (5) thereof specificallyconfers on the Central Government a power to suspend or cancela license if it considers that it is in public interest. This provisionalso makes it clear that an opportunity to hear the licensee could be dispensed with if the Central Government considers that inpublic interest. This Court finds that the grave air quality situationin NCR is one such case, where this Court, can intervene andsuspend the licenses to store and sell fireworks in the NCR. Wedirect the Central Government to:

(i) Suspend all such licenses as permit sale of fireworks,wholesale and retail within the territory of NCR.

(ii) The suspension shall remain in force till further orders ofthis Court.

(iii) No such licenses shall be granted or renewed till furtherorders.

20. In addition to the above, we direct the CPCB to study andprepare a report on the harmful effects of the materials whichare currently being used in the manufacture of fireworks. Thereport shall be submitted within a period of three months to thisCourt.”

9. Since direction was given to the Central Pollution Control Board(CPCB) to study and prepare a report of the harmful effects of thematerials which are currently being used in the manufacture of fireworksand submit a report within three months, the matter was taken up forconsideration thereafter from time to time.

10. Thereafter, the manufacturers of firecrackers as well as licenseholders also filed applications for modification of the aforesaid interimorder. It included IA No. 52448 of 2017. Because of these applications,the matter was heard by a Bench of this Court and orders datedSeptember 12, 2017 were passed in the aforesaid IA. In this order also,the Court recognised severity of air pollution in Delhi and NCR. TheCourt also discussed the manner in which air quality had worsened dueto fireworks during Diwali days in the year 2016. The Court took noteof the steps that were taken by different authorities aiming to reduce airpollution after the passing of orders dated November 11, 2016; the legalprovisions contained in the Explosives Act, 1884 and the Explosive Rules,2008 framed thereunder; and further steps which were needed in thisbehalf to reduce the pollution in Delhi and NCR. The Court took note ofthe fact that number of measures were required to be taken for improvingair quality as various factors were contributing to the air pollution. It also A

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Aspecifically mentioned that one of the reasons was burning of crackers/fireworks during Diwali. On that basis, the Court also accepted thatone of the possible methods for reducing it during Diwali is by continuingthe suspension of licenses for the sale of fireworks, thereby implicitlyprohibiting the bursting of fireworks. However, at the same time, theCourt expressed the opinion that continuing the suspension of licensesBmight be too radical a step to take for the present. It was deemedappropriate to adopt a graded and balanced approach, which is necessary,that will reduce and gradually eliminate air pollution in Delhi and in theNCR caused by the bursting of fireworks. In the process, the Court tookinto consideration the interest of those who had already been granted aCvalid permanent licence to posses and sell fireworks in Delhi and theNCR. We would like to reproduce the following paragraphs from thesaid order:

“67. The right to health coupled with the right to breathe clean airleaves no manner of doubt that it is important that air pollutionDdeserves to be eliminated and one of the possible methods ofreducing it during Diwali is by continuing the suspension oflicences for the sale of fireworks and therefore implicitly,prohibiting the bursting of fireworks.

68. In our considered opinion, continuing the suspension ofElicences might be too radical a step to take for the present – agraded and balanced approach is necessary that will reduce andgradually eliminate air pollution in Delhi and in the NCR causedby the bursting of fireworks. At the same time it is necessary toensure that injustice is not caused to those who have already beengranted a valid permanent licence to possess and sell fireworks inFDelhi and the NCR. The graded and balanced approach is notintended to dilute our primary concern which is and remains thehealth of everybody and the human right to breathe good qualityair or at least not be compelled to breathe poor quality air.Generally speaking this must take precedence over theGcommercial or other interest of the applicant and those granted apermanent licence to possess and sell fireworks.

69. But, from the material before us, it cannot be said with anygreat degree of certainty that the extremely poor quality of air inDelhi in November and December 2016 was the result only of H

bursting fireworks around Diwali. Certainly, there were othercauses as well, but even so the contribution of the bursting offireworks cannot be glossed over. Unfortunately, neither is itpossible to give an accurate or relative assessment of thecontribution of the other identified factors nor the contribution ofbursting fireworks to the poor air quality in Delhi and in the NCR.Consequently, a complete ban on the sale of fireworks would bean extreme step that might not be fully warranted by the factsavailable to us. There is, therefore, some justification formodifying the interim order passed on 11[th] November, 2016 andlifting the suspension of the permanent licences.

70. At the same time, it cannot be forgotten that admittedly thereis a huge quantity of fireworks in Delhi and in the NCR and thefigure has been provided to us by the applicant. Similarly, therecan be no doubt that the Delhi Police had issued a large numberof temporary licences in 2016 and it would not be unreasonable toassume that around and during Diwali, there would have beensome illegal temporary shops set up, whether known or not knownto the police. We do not have the figures with regard to the NCR,but we assume that like in Delhi, a large number of temporarylicences have been issued for the possession and sale offireworks. Therefore, there is a need to regulate the availabilityand sale of fireworks in Delhi and the NCR.”

11. It was followed by the following directions:

11. It was followed by the following directions:

“71. As mentioned above, the health of the people in Delhi and inthe NCR must take precedence over any commercial or otherinterest of the applicant or any of the permanent licensees and,therefore, a graded regulation is necessary which wouldeventually result in a prohibition. Taking all factors intoconsideration, we are of the view that the following orders anddirections are required to be issued and we do so:

(1) The directions issued by this Court in Sadar Bazar FireWorks (Pucca Shop) Association shall stand partially modifiedto the extent that they are not in conformity with the ExplosivesRules which shall be implemented in full by the concernedauthorities. Safety from fire hazards is one of our concerns in thisregard.

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(2) Specifically, Rule 15 relating to marking on explosives andpackages and Rule 84 relating to temporary shops for possessionand sale of fireworks during festivals of the Explosives Rulesshall be strictly enforced. This should not be construed to meanthat the other Rules need not be enforced – all Rules should beenforced. But if the fireworks do not conform to therequirements 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 orderpassed 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 Magistrateswill ensure that fireworks are not burst in silence zones that is, anarea at least 100 meters away from hospitals, nursing homes,primary and district health-care centres, educational institutions,courts, religious places or any other area that may be declared asa silence zone by the concerned authorities.

(5) The Delhi Police is directed to reduce the grant of temporarylicences 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 morethan 50% of the number of temporary licences granted in 2016.The area of distribution of the temporary licences is entirely forthe authorities to decide.

(6) The Union of India will ensure strict compliance with theNotification GSR No. 64(E) dated 27th January, 1992 regardingthe ban on import of fireworks. The Union of India is at liberty toupdate and revise this notification in view of the passage of timeand further knowledge gained over the last 25 years and issue afresh notification, if necessary.

(7) The Department of Education of the Government of NCT ofDelhi and the corresponding Department in other States in theNCR shall immediately formulate a plan of action, in not morethan 15 days, to reach out to children in all the schools through theschool staff, volunteers and NGOs to sensitize and educate schoolchildren on the health hazards and ill-effects of breathing polluted air, including air that is polluted due to fireworks. School childrenshould be encouraged to reduce, if not eliminate, the bursting offireworks as a part of any festivities.

(8) The Government of NCT of Delhi and other States in theNCR may consider interacting with established medicalinstitutions for issuing advisories cautioning people about the healthhazards of bursting fireworks.

(9) The interim direction issued by this Court on 31st July, 2017prohibiting the use of compounds of antimony, lithium, mercury,arsenic and lead in the manufacture of fireworks is madeabsolute. In addition, the use of strontium chromate in themanufacture of fireworks is prohibited.

(10) Fireworks containing aluminum, sulphur, potassium and bariummay be sold in Delhi and in the NCR, provided the compositionalready approved by PESO is maintained. It is the responsibilityof PESO to ensure compliance of the standards it has formu-lated.

(11) Since there are enough fireworks available for sale in Delhiand the NCR, the transport of fireworks into Delhi and the NCRfrom outside the region is prohibited and the concerned lawenforcement authorities will ensure that there is no further entryof fireworks into Delhi and the NCR till further orders. In ouropinion, even 50,00,000 kg of fireworks is far more than enoughfor Dussehra and Diwali in 2017. The permanent licensees are atliberty to exhaust their existing stock of fireworks in Delhi and theNCR and, if that is not possible, take measures to transport thestocks outside Delhi and the NCR.

(12) The suspension of permanent licences as directed by theorder dated 11th November, 2016 is lifted for the time being. Thismight require a review after Diwali depending on the ambient airquality post Diwali. However, it is made explicit that the sale offireworks by the permanent licensees must conform to thedirections given above and must be fully in compliance with theExplosives Rules. We were informed that the permanent licenceswere issued by PESO and therefore the responsibility is on PESOto ensure compliance.

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(13) While lifting the suspension on the permanent licencesalready granted, we put these licensees on notice for Dussehraand Diwali in 2018 that they will be permitted to possess and sellonly 50% of the quantity permitted in 2017 and that this willsubstantially reduce over the next couple of years. Thepermanent licensees are at liberty to file objections to thisproposed direction within 30 days from today and thereafter theobjections if any will be heard and decided. If no objections arefiled, this direction will become absolute without any furtherreference to any licensee.

(14) Since there is a lack of clarity on the safety limits of variousmetals and constituents used in fireworks, a research study mustbe jointly carried out by the CPCB and the FRDC laying downappropriate standards for ambient air quality in relation to thebursting of fireworks and the release of their constituents in theair. While Schedule VII of the Environment (Protection) Rules,1986 does deal with several metals, but as we have seen thereare several other metals or constituents of fireworks that havenot been studied by the CPCB and no standards have been laiddown with regard to the concentration of these metals or con-stituents in the ambient air. The CPCB has assured us that it willcomplete the exercise by 15th September, 2017 but keeping inmind its track record subsequent to the order dated 11thNovember, 2016 this does not seem possible. Therefore, we granttime to the CPCB to come out with definite standards on or be-fore 30th September, 2017.

(15) In any event, a research study also needs to be conducted onthe impact of bursting fireworks during Dussehra and Diwali onthe health of the people. We, therefore, appoint a Committee tobe chaired by the Chairperson of the CPCB and consisting ofofficers at the appropriate level from the National PhysicalLaboratory, Delhi, the Defence Institute of Physiology and AlliedSciences, Timarpur, Delhi, the Indian Institute of Technology-Kanpur, scientists from the State Pollution Control Boards, theFire Development and Research Centre, Sivakasi and Nagpurand the National Environment Engineering Research Institute(NEERI) nominated by the Chairperson of the CPCB to submit areport in this regard preferably on or before 31st December, 2017.

(16) Keeping in mind the adverse effects of air pollution, thehuman right to breathe clean air and the human right to health, theCentral Government and other authorities should considerencouraging display fireworks through community participationrather than individual bursting of fireworks.”

12. After the aforesaid order was passed, many applications werefiled, from both sides, seeking modification of some of the aforesaiddirections. Insofar as the petitioners are concerned, in their applicationfor modification, they prayed for removal of Directions Nos. 5 and 10 to13, which was in essence a prayer for restoration of earlier order datedNovember 11, 2016. Insofar as fireworks manufacturers, traders andlicense holders of the fireworks/firecrackers are concerned, they wantedthat relaxation given in the order dated September 12, 2017 be furtherliberalised.

13. After hearing both the parties, orders dated October 09, 2017were passed. The Court accepted the fact that burning of firecrackersduring Diwali was not the only reason for air pollution in Delhi and NCRand there was a need to tackle those factors as well. However, it wasobserved that the immediate impact of use of fireworks and firecrackersbursting during Diwali is an altogether different aspect. The Court notedthat there is direct evidence of deterioration of air quality at alarminglevels, which happens every year. Burning of these firecrackers duringDiwali in 2016 had shot up PM levels by three times, making Delhi theworst city in the world insofar as air pollution is concerned. Direct andimmediate cause thereof was burning of crackers during Diwali. TheCourt also remarked that every year before Diwali there are attemptson the part of the Government (Ministry of Environment, Governmentof India as well as Delhi Government), Media, NGOs and various othergroups to create awareness in the general public about the ill-effects ofbursting of these crackers. Campaigns are held in the schools whereinchildren are discouraged to have fireworks. Thus, there is virtually aconsensus in the society that crackers should not be burnt during Diwali,which can be celebrated with equal fervour by various other means aswell. Irony is that when causes are brought in the Court, there is aresistance from certain quarters. Moreover, there are adequatestatutory provisions, aid whereof can be taken to ban the sale ofthese crackers.

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A14. The Court also took into consideration three substantialsubmissions which were made by the petitioners, viz.: (a) CPCB hadtaken a stand, nearly twenty years ago, that Sulphur in fireworks shouldnot be permitted as Sulphur on combustion produces Sulphur Dioxideand the same is extremely harmful to health. The CPCB has stated thatbetween 9:00 p.m. to midnight on Diwali day the levels of SulphurBDioxide content in the air are dangerously high. Moreover, all the aboveauthorities were also unanimous in their view that crackers should onlybe burst in designated places. Also the CPCB had specifically statedthat joined crackers should be banned. Secondly, in the order datedNovember 11, 2016, licenses were suspended primarily for the reasonCthat rising in the PM levels at alarming proportion was because of burningof crackers during Diwali, which had adverse harmful affect and,therefore, there was no reason to relax this condition. Another significantargument which was taken note of was that the order dated November11, 2016 was passed immediately after the Diwali in the year 2016 andthe effect of that order had not been tested. Going by these considerations,Dthe Court decided to suspend the order dated September 12, 2017 atleast during the Diwali of 2017 with the following directions:

“14...To put it clearly, though we are not tweaking with thevarious directions contained in the Orders dated September 12,2017, the effect of that Order would not be given during this DiwaliEand, therefore, we are making it effective only from November01, 2017. We are conscious of the fact that after the said orderwas passed, the police may have issued temporary licences.Accordingly, those are suspended forthwith so that there is nofurther sale of the crackers in Delhi and NCR. Further orders inFthis behalf can be passed on assessing the situation that wouldemerge after this Diwali season...”

15. As expected, spate of applications have been filed, most ofwhich emanate from the aforesaid orders dated October 09, 2017. Manyparties have intervened. Most of the interventionists are supporting theGpetitioners and want permanent ban on the burning of crackers duringDiwali. Some have even prayed that this ban be extended to the wholecountry and should not be limited to only Delhi and NCR. IAs were alsofiled seeking ban on crop burning. The opposite group consists ofmanufacturers of crackers, manufacturers’ association and licenseholders. The State of Tamil Nadu has come forward to support thisH

category. Additionally, one interventionist, namely Indic Collective(applicant in IA No. 105355 of 2017), is also opposing the ban contendingthat burning of crackers during Diwali is a religious activity which is invogue for time immemorial and, therefore, it should not be banned.

16. It is not necessary to take note of the arguments of each ofthe counsel appearing on either side. For the sake of convenience,arguments of the petitioners as well as those who have supported thepetitioners’ cause and the arguments of the other group which is opposingthe prayers made by the petitioners, are collated and we state belowthese arguments and counter arguments in consolidated manner:

17. Petitioners’ Arguments:

(a) As far as the petitioners are concerned, they have proceededon the premise that undeniable fact is that as a result of burning ofcrackers during Diwali PM2.5 reach an alarmingly high level whichcertainly is injurious to health. It is argued that the adverse affect thereofon the health of citizens, particularly children, is irreversible. It causesasthma, coughing, bronchitis, retarded nervous system breakdown andeven cognitive impairment.

(b) The official respondents had failed to address the issues andcarry out desired studies in spite of the directions of this Court. Variouscommittees set up are examining the question as to what kind of metalshould be used in the manufacture of crackers. So far no study hasbeen conducted on the ill-effect caused by PM2.5.

(c) Studies by CPCB had categorically found that burning ofcrackers during Diwali was contributing to air as well as noise pollutionin an alarming manner. Copies of these studies showing continuousambient air quality during Diwali annexed with IA No. 109720 of 2017is 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 ofIndia, through the Ministry of Environment, Forest and Climate Change,wherein ill-effects of fireworks are accepted and measures suggestedto tackle the same.

Opinions of prominent doctors mentioning spike in the respiratoryproblems among children and patients are also pointed out.

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A(d) Dealing with the argument of the manufacturers and tradersof firecrackers based on Article 19(1)(g) of the Constitution of India,namely, fundamental right to carry on business, the submission of thepetitioners is that going by the ill-effects of the firecrackers, no suchright can be claimed as principle of res extra commercium would apply.In support, additional affidavit filed on July 26, 2017 as well as in JulyB2018 are referred to wherein the petitioners have sought to highlight thefollowing aspects:

(i) These manufacturers were employing child labour. At onepoint of time, almost one lakh children were employed in this industry.Though it was admitted that this position does not exist any longer inCview of strict measures taken by the Government.

(ii) The manufacturing of firecrackers generates a lot of wastewhich adds to pollution as sufficient measures are not undertaken todeal with this waste.

D(iii) Number of deaths as well as injuries to persons are causedevery 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. UnionEof India and Others, (1996) 5 SCC 647; and A.P. Pollution ControlBoard v. Prof. M.V. Nayudu (Retd.) and Others, (1999) 2 SCC 718,have been relied upon.

In the alternative, it was argued that even if it is accepted thatargument of Article 19(1)(g) of the Constitution is available to themanufacturers and traders, such a ban on burning crackers duringFDiwali would amount to reasonable restriction having regard tothe fact that right to health was also a fundamental right guaranteedunder Article 21 of the Constitution. It was also submitted thatthe cost in the form of medical expenses which are incurred fortreatment of those who suffered as a result of burning of crackersGis equally high or even may be higher.

(e) One of the arguments of the opposite side was that therewere no sufficient studies as to what extent the burning of crackers iscontributing towards air and noise pollution and whether it was such aserious problem which warrants ban. To this, reply of the petitioners H

was that in the field of environmental laws, precautionary principle wasalso applicable which does not need exact studies or material.

(f) Insofar as argument of burning of crackers during Diwali, asa part of right of religious practice is concerned, the refutation of thepetitioners is that such an argument has already been rejected by thisCourt in Vellore Citizens’ Welfare Forum case. It was further submittedthat burning of crackers during Diwali is not a core and essential religiouspractice and even if it is so, Article 25 was subject to Article 21 of theConstitution. Judgment in Noise Pollution (V), in Re, (2005) 5 SCC733, was relied upon in this regard.

18. Arguments of the opposite side:

The respondents, who are opposing the prayers made in thewrit petitions and the IAs, made the submissions to the following effect:

(i) Burning of crackers during Diwali does not have any significantadverse affect on the environment. It is argued that there is no study tilldate which has come to such a conclusion. The Deepawali MonitoringReport, 2017 of CPCB is relied upon for this purpose and on that basis itis contended that the factors which contributed to the problem were notbecause of crackers burning during Diwali. Ambient air quality beforeand 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 topolluting air and such a position existed even before Diwali, which showedthat other factors played dominant role.

(ii) Insofar as presence of PM2.5 in the air is concerned, studies ofCPCB are relied upon, on the basis of which attempt is made to showthat: (a) spike was not so much during Diwali days; (b) increase inPM2.5 in the air does not remain for long, i.e. it does not linger for manydays; and (c) it is manageable as well.

Reports of Indian Institute of Technology, Kanpur; NationalAeronautics and Space Administration (NASA), USA; a professor fromHarvard University; and an affidavit dated January 05, 2018 filed byCPCB 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 A

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Aconducted on the impact of bursting fireworks during Dussehra andDiwali on the health of people, no such empirical data has emerged sofar for want of detailed studies.

In nutshell, the argument was that in the absence of any definitestudy attributing the worsening of air quality to the fireworks duringBDiwali, 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 tosuffer till the time there is a complete study in this behalf.

(iv) It is also argued that the revenue generated from themanufacturing and sale of fireworks is to the tune of Rs.6,000 croresCper annum. Further, this industry has given employment to five lakhfamilies. Such a revenue to the State as well as employment to largenumber of workers on which five lakh families sustain cannot be put injeopardy by imposing a total ban. It was emphasised that there is anecessity to adopt a balanced approach. For this purpose, Status Reportand affidavit of the Ministry of Environment, Forest and Climate ChangeDhas been relied upon which suggested eco-friendly firecrackers. Advisorydated March 07, 2008 issued by the Petroleum and Explosives SafetyOrganisation (PESO), which comes under the Department of IndustrialPolicy and Promotion, Ministry of Commerce and Industry, Governmentof India, was also relied upon, as per which the fireworks manufacturersEin India were advised to ensure that the firecrackers manufactured bythem are within the limits prescribed in Annexure-I to the said Advisorydated March 07, 2008.

(v) The State of Tamil Nadu also supported the cause of themanufacturers and traders of the firecrackers. It was argued that theFstudy undertaken by CPCB pursuant to the directions issued by thisCourt was conducted by the Committee which did not have arepresentative from the Fireworks Research and Development Centre(FRDC) which was not even informed about the development of thiscase. It was emphasised that any proper study in this behalf shouldaddress following aspects:G

a) Socio-economic effect of the ban needs to be examined as itmay cause extreme economic hardship,

b) There should be a proper study about the other factors whichwere leading to air pollution, like construction activity, etc., whichare not banned.H

c) Banning of an activity is an extreme measure. The study shouldfocus on the alternatives available in the present daytechnology which may be deployed to ensure that pollution freefirecrackers can be manufactured.

(vi) Indic Collective (applicant in IA No. 105355 of 2017) opposedthe prayer of banning of fireworks during Diwali on the ground that itwas a religious practice scrupulously followed by the Hindus from timeimmemorial and it had become a core and essential religious practicewhich was protected under Article 25 of the Constitution as theirfundamental right.

19. The arguments of the parties recorded above would showthat the submissions for and against almost remain the same, whichwere advanced on earlier occasions, though the focus of both the sideswas more nuanced. In the process, the events and developments whichhave taken place after passing the order dated October 09, 2017 havealso been relied upon by both the parties.

20. Before proceeding to deal with these submissions, it may beapposite to take note of the study that has been undertaken by CPCB onthe basis of the directions of this Court in its order dated September 12,2017.

21. Following the directions of this Court, a Committee wasappointed to be chaired by the Chairperson of the CPCB. This Committeeinvited Dr. M.K. Daga, Professor Director, Maulana Azad MedicalCollege (MAMC), as health expert to study the methodology. Dr. Dagasuggested that considering the time available, a short-term study basedon questionnaire survey, hospital data collection and sampling at a fewlocations can be conducted. This methodology proposed by Dr. Dagawas agreed to by the Committee. The Committee requested MAMC tosubmit a proposal accordingly. On submission of project proposal, theCommittee awarded the project on ‘Health Impact Assessment onFirecracker Burning During Dussehra And Diwali’ to MAMC. Thescope included questionnaire survey for respiratory, skin, air, eye andrelevant symptoms during pre and post Diwali, clinical study on lungfunction and urine samples of randomly selected subjects, and dataanalysis. After conducting this survey, a draft report was prepared andultimately it was finalised after incorporating the comments from theMembers of the Committee. As per this study on the afore-mentionedsubject, following are the major findings:

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A“The respiratory system related symptoms and sings were notmuch 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 requiringimmediate medical attention. Other system related complaintswere also not much different during pre and post Dussehra andBDiwali.

There was evidence of increased values of barium and strontiumin urine samples of many subjects. These are some of the metalsused in firecracker manufacturing. Increased levels in urine doreflect a probability of exposure. However, all other elementsare not increased to substantiate the effect of bursting offirecrackers. It is also possible that the individuals were exposeddue to bursting of firecrackers directly or indirectly in their local-ity.

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Air quality did worsen during Diwali and symptoms of eye,Dincreased coughing, relatively more hospital visits, increased noiselevels and high metal levels in urine do reflect adverse impact offirecracker bursting. However, it was not significant statistically.A long term study would be required to assess long term healthimpacts of firecracker bursting.”

E22. Affidavit filed by CPCB also states that in compliance of theorders dated October 09, 2017 of this Court the Air Quality MonitoringCommittee during Dussehra and Diwali was conducted by CPCB,a report whereof is annexed with its affidavit. As per that report, thesalient features are as under:F“a) That, slight increase in PM10 concentration was observed intwo locations i.e. Pitampura and Siri Fort on Dussehra day.

b) That, PM2.5 mass concentrations were found lower on postDussehra day at all stations and it was highest on pre Dussehraday.

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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 weredeclined on Dussehra day, certain specific elemental H

concentration like Aluminum, Potassium and Barium showedincrement on Dussehra day, which indicate some firecrackerbursting has affected air quality.

e) That, on Diwali day both PM10 and PM2.5 increased 2-3.5 foldof the levels recorded seven days before Diwali and the Diwalipeaks of PM2.5 declined in three days.

f) Both PM10 and PM2.5 were reported higher in post Diwali daycompared to pre Diwali at all stations.

g) SO2 remained within prescribed standard limit with slightincrement on Diwali day. NO2 also reported within standardlimit at all locations on Diwali day.

h) That, the elements like Al, S, K, Cl2, Ba, Sr all have registeredtheir presence in PM2.5 collected on Diwali day, and theconcentration of Al observed 4 to 6 times higher than that ofshort-term standards/critical values of 40 ug/m3 proposed byCPCB.

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%.”

23. It can be discerned from the above that the air quality hadworsened during Diwali. There were more patients with symptoms ofeye, increased coughing and patients with high metal levels in urine.Even noise level had increased. These are the adverse impacts offirecracker bursting, though the study mentions that statistically it wasnot a significant increase.

24. The study has also found that actual PM2.5 mass concentrationsincreased 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 post-Diwali day compared topre-Diwali at all stations. Another significant finding is that PM2.5 wasreduced by 39% compared to 2016 Diwali, presumably due to the banorder on the sale of crackers which was passed on October 09, 2017,which led to lesser quantum of fireworks.

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A25. Two significant features emerge from the above. First, due tofireworks on Diwali day, PM2.5 levels go up. Secondly, when there waslesser fireworks in 2017, it had reduced the PM2.5 levels as compared tothe earlier Diwali in the absence of ban.

26. It is an accepted fact that bursting of firecrackers during DiwaliBis not the only reason for deterioration of air quality. There are otherfactors as well. It calls for necessity to tackle the other contributoryfactors for air pollution and making the air quality as ‘very poor’ andeven ‘poor’. Unregulated construction activity which generates lot ofdust and crop burning in the neighbouring States are the two other majorreasons, apart from certain other reasons, including vehicular pollutionCetc. The moot question in such a scenario is as to whether the menacedue to fireworks during Diwali or other festivals/occasions should beleft 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? Answerhas to be in the negative.D

27. Once it is accepted that PM2.5 level goes alarmingly higher onDiwali and post-Diwali, which is the result of bursting of firecrackers,it is necessary to understand the adverse affect on health of persons ofthis 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/prominentEdoctors in the field, which have been placed on record by the petitioners.

28. Dr. Arvind Kumar, who interfered in the matter, filed hisaffidavit on August 14, 2018, wherein he has inter alia stated as under:

“7. I have consistently found that in the immediate aftermath ofDiwali, there is an increase in the number of people coming withFchest ailments and many of my operated patients returned withcomplaints of cough and breathlessness without any other causefor the same. This has forced me to carry out innumerable chestx-rays and CT scans to confirm that the complaints are due to theexposure to toxins. For the sake of relief to the patient and inGorder to relieve them from bronchospasms, my colleagues and Iare compelled to prescribe inhalers which have brochodilatorsand inhaled steroids, apart from cough suppressants andantibiotics. Media reports suggest that there has been an increasein asthma medicine sales by 43% due to pollution (Hindustan Times,May 02, 2017). While earlier, it was believed that children with H

asthma would outgrow the affliction, in the present circumstances,this seems challenging.

8. Both at AIIMS and at Sir Ganga Ram Hospital, there has beena significant increase in the number of patients I would see in myOPD in the days immediately following Diwali, and I have nodoubt that this was on account of sudden exposure to the deadlycocktail consisting of extremely high levels of toxic gases,particulate matter and metallic compounds. Each exposure tofirework emissions not only leads to acute disastrous effects butalso causes cumulative long-term irreversible damage. Once thePM2.5 particle gets deposited in the lungs, it never leaves, therebyaffecting the linking for life and diminishing breathing capacity.This affects not only the respiratory system, but also thecardio-vascular system (heart attacks and hypertension), nervoussystem (strokes and developmental abnormalities in children),reproductive system and virtually every other health functionincluding the bladder and kidneys.

9. It would be useful to refer to two studies conducted ten yearsapart by a team including Prof. Sundeep Salvi, Director ChestResearch Foundation, Pune and Member of the Government ofIndia’s Steering Committee on Air Pollution & Health. The firstone in 2007 was presented at the Annual Congress of theEuropean Respiratory Society at Stockholm and reveals the harmfulhealth effects of CO, SOx and NOx from fireworks.

10. The second is a detailed study on the amount of ParticulateMatter in various types of fireworks in India and this waspresented at the meeting of the European Respiratory Society atMilan in 2017. This has since been published in the EuropeanRespiratory Journal, and examines the personal exposure levelsof fireworks (as against a general study of ambient air). In theseisolated and controlled circumstances, the exposure to PM2.5 wasfound to be as high as 64,5000 u/m3.”

29. From the aforesaid it can be gathered that when PM2.5 crossesthe normal limits, even if it remains in the air for few days, it becomessevere health hazard thereby causing serious health problems.Unfortunately such problems are virtually irreversible, which means thata person whose health gets affected because of this particulate has a A

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Along suffering. In view thereof, argument in opposition that air qualitythat gets worsened during Diwali remains only for few days would beof no consequence as even in few days it causes severe harm to thehealth of the people, that too for prolonged duration.

30. From the aforesaid discussion, the position can be summed upBby stating that though burning of crackers during Diwali is not the onlyreason for worsening air quality, at the same time, it definitely contributesto air pollution in a significant way. Again, even when no studies areundertaken on long-term impact thereof, the CPCB Committee, whichdid this exercise taking it as a short-term project which was assigned toMAMC, has returned a definite finding about deterioration in air qualityCduring Diwali because of burning of crackers. It has also shown thatpost-Diwali air pollution in 2017 was less compared to the 2016 Diwaliwhich was the result of lesser fireworks in 2017. This again indicates adirect causal connection between burning crackers during Diwali andair pollution. Another immediate effect of burning of crackers is that itDresults in substantial increase in PM2.5 level which is a very serioushealth hazard. In fact, this results in severe noise pollution as well whichhas acute psychological, mental and even physical affect on animals. Inthe application seeking intervention and directions (IA No. 68897 of 2018)filed by Gauri Maulekhi, the applicant has placed on record plethora ofliterature based on various studies depicting profound affect of noise/Esound 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 geneexpression. Fireworks sometimes results in temporary or permanenthearing impairment in animals. Further, dogs are also known to displayFpsychological symptoms of stress during this time. So much so, fireworkshas traumatising affect even on birds. Deafening sound which thecrackers produce on bursting are known to disorient birds and responsiblefor their displacement from their nests. Even the respiratory system ofthe birds gets affected. Studies also show that the sound of crackershas affect on milch cattle. As the cattle is scared, adrenaline is releasedGin its body which inhibits oxytocin, a hormone which helps the milk cattleto release milk thereby affecting the production of milk.

31. The aforesaid findings are sufficient to negate the argumentsof the opposite side that there is absence of scientific study about theadverse affect of firecrackers during Diwali. In environmental law,H

‘precautionary principle’ is one of the well recognised principles whichis followed to save the environment. It is rightly argued by the petitionersthat this principle does not need exact studies/material. The very word‘precautionary’ indicates that such a measure is taken by way ofprecaution which can be resorted to even in the absence of definitestudies. In Vellore Citizens’ Welfare Forum, this Court explained theprinciple in the following manner:

“11. Some of the salient principles of “Sustainable Development”,as culled out from Brundtland Report and other internationaldocuments, are Inter-Generational Equity, Use and Conservationof Natural Resources, Environmental Protection, the Precaution-ary Principle, Polluter Pays Principle, Obligation to Assist andCooperate, Eradication of Poverty and Financial Assistance tothe developing countries. We are, however, of the view that “ThePrecautionary Principle” and “The Polluter Pays Principle” areessential features of “Sustainable Development”. The“Precautionary Principle” — in the context of the municipal law — means:

(i) Environmental measures — by the State Government and thestatutory authorities — must anticipate, prevent and attack thecauses of environmental degradation.

(ii) Where there are threats of serious and irreversible damage,lack of scientific certainty should not be used as a reason forpostponing 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.

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14. In view of the above-mentioned constitutional and statutoryprovisions we have no hesitation in holding that the PrecautionaryPrinciple and the Polluter Pays Principle are part of theenvironmental law of the country.

15. Even otherwise once these principles are accepted as part ofthe Customary International Law there would be no difficulty inaccepting them as part of the domestic law. It is almost anaccepted proposition of law that the rules of CustomaryInternational Law which are not contrary to the municipal law A

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490SUPREME COURT REPORTS

Ashall be deemed to have been incorporated in the domestic lawand shall be followed by the courts of law. To support we mayrefer to Justice H.R. Khanna’s opinion in A.D.M. v. ShivakantShukla, Jolly George Varghese case and Gramophone Co.case.

B16. The constitutional and statutory provisions protect a person’sright to fresh air, clean water and pollution-free environment, but thesource of the right is the inalienable common law right of clean environ-ment...”

32. The precautionary principle accepted in the aforesaid judgmentCwas further elaborated in A.P. Pollution Control Board’s case as under:

“31. The “uncertainty” of scientific proof and its changingfrontiers from time to time has led to great changes inenvironmental concepts during the period between the StockholmConference of 1972 and the Rio Conference of 1992. In VelloreDCitizens’ Welfare Forum v. Union of India a three-Judge Benchof this Court referred to these changes, to the “precautionaryprinciple” and the new concept of “burden of proof” inenvironmental matters. Kuldip Singh, J. after referring to theprinciples evolved in various international conferences and to theconcept of “sustainable development”, stated that the precaution-Eary principle, the polluter-pays principle and the special conceptof onus of proof have now emerged and govern the law in ourcountry too, as is clear from Articles 47, 48-A and 51-A(g) of ourConstitution and that, in fact, in the various environmentalstatutes, such as the Water Act, 1974 and other statutes, includingFthe Environment (Protection) Act, 1986, these concepts arealready implied. The learned Judge declared that these principleshave now become part of our law. The relevant observations inthe Vellore case in this behalf read as follows: (SCC p. 660, para14)

“14. In view of the above-mentioned constitutional andstatutory provisions we have no hesitation in holding that theprecautionary principle and the polluter-pays principle arepart of the environmental law of the country.”

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The Court observed that even otherwise, the abovesaid principlesare accepted as part of the customary international law and hencethere should be no difficulty in accepting them as part of ourdomestic law. In fact, on the facts of the case before this Court, itwas 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 whichplaces the burden of proof on the developer or industrialist who isproposing to alter the status quo, has also become part of ourenvironmental law.

32. The Vellore judgment has referred to these principles brieflybut, in our view, it is necessary to explain their meaning in moredetail, so that courts and tribunals or environmental authoritiescan properly apply the said principles in the matters which comebefore them.

33. A basic shift in the approach to environmental protectionoccurred initially between 1972 and 1982. Earlier, the conceptwas based on the “assimilative capacity” rule as revealed fromPrinciple 6 of the Stockholm Declaration of the U.N. Conferenceon Human Environment, 1972. The said principle assumed thatscience could provide policy-makers with the information andmeans necessary to avoid encroaching upon the capacity of theenvironment to assimilate impacts and it presumed that relevanttechnical expertise would be available when environmental harmwas predicted and there would be sufficient time to act in order toavoid such harm. But in the 11th Principle of the U.N. GeneralAssembly Resolution on World Charter for Nature, 1982, theemphasis shifted to the “precautionary principle”, and this wasreiterated in the Rio Conference of 1992 in its Principle 15 whichreads as follows:

“Principle 15.—In order to protect the environment, theprecautionary approach shall be widely applied by Statesaccording to their capabilities. Where there are threats of A

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serious or irreversible damage, lack of full scientific certaintyshall not be used as a reason for proposing cost-effectivemeasures 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 assessingthe record and concluding that there is inadequate informationon which to reach a determination. If it is not possible to makea decision with ‘some’ confidence, then it makes sense to erron the side of caution and prevent activities that may causeserious or irreversible harm. An informed decision can be madeat a later stage when additional data is available or resourcespermit further research. To ensure that greater caution is taken in environmental management, implementation of the principlethrough judicial and legislative means is necessary.”

In other words, the inadequacies of science is the real basis thathas led to the precautionary principle of 1982. It is based on thetheory that it is better to err on the side of caution and preventenvironmental harm which may indeed become irreversible.

35. The principle of precaution involves the anticipation ofenvironmental harm and taking measures to avoid it or to choosethe least environmentally harmful activity. It is based on scien-tific uncertainty. Environmental protection should not only aim atprotecting health, property and economic interest but also protectthe environment for its own sake. Precautionary duties must notonly be triggered by the suspicion of concrete danger but also by(justified) concern or risk potential. The precautionary principlewas recommended by the UNEP Governing Council (1989). TheBomako Convention also lowered the threshold at whichscientific evidence might require action by not referring to“serious” or “irreversible” as adjectives qualifying harm.However, summing up the legal status of the precautionaryprinciple, one commentator characterised the principle as still“evolving” for though it is accepted as part of the internationalcustomary law, “the consequences of its application in anypotential 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 VelloreCitizens’ Welfare Forum was also elaborated by the Court in thefollowing manner:

“36. We shall next elaborate the new concept of burden of proofreferred to in the Vellore case at p. 658. In that case, KuldipSingh, J. stated as follows: (SCC p. 658, para 11)

“(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 haveled to the “precautionary principle”, the said “precautionaryprinciple” in its turn, has led to the special principle of burden ofproof in environmental cases where burden as to the absence ofinjurious effect of the actions proposed, — is placed on thosewho want to change the status quo [Wynne, Uncertainty andEnvironmental Learning, 2 Global Envtl. Change 111 (1992) atp. 123]. This is often termed as a reversal of the burden of proof,because otherwise in environmental cases, those opposing thechange would be compelled to shoulder the evidentiary burden, aprocedure which is not fair. Therefore, it is necessary that theparty attempting to preserve the status quo by maintaining a lesspolluted state should not carry the burden of proof and the partywho 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 anidentifiable risk of serious or irreversible harm, including, forexample, extinction of species, widespread toxic pollution inmajor threats to essential ecological processes, it may beappropriate to place the burden of proof on the person or entityproposing the activity that is potentially harmful to theenvironment. (See Report of Dr Sreenivasa Rao Pemmaraju, A

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ASpecial Rapporteur, International Law Commission, dated 3-4-1998, para 61.)”

34. This brings us to the next argument which is predicated onArticle 19(1)(g) of the Constitution. Mr. Shankarnarayanan had submittedthat principle of res extra commercium shall apply inasmuch asBfirecrackers are a health hazard, the manufacturers and traders thereofcannot claim any fundamental right to carry on business in this field.Such a plea may not be tenable. Therefore, it calls for a measure thatwould amount to a reasonable restriction.

35. It may be stressed that in Vellore Citizens’ Welfare ForumCcase, this Court had banned the tanneries when it was found that theywere causing immense damage to the environment. Thus, environmentprotection, which is a facet of Article 21, was given supremacy over theright to carry on business enshrined in Article 19(1)(g). We state at thecost of repetition that right of health, which is recognised as a facet ofArticle 21 of the Constitution and, therefore, is a fundamental right,Dassumes greater importance. It is not only the petitioners and otherapplicants who have intervened in support of the petitioners but the issueinvolves millions of persons living in Delhi and NCR, whose right tohealth is at stake. However, for the time being, without going into thisdebate in greater details, our endeavour is to strive at balancing of twoErights, namely, right of the petitioners under Article 21 and right of themanufacturers and traders under Article 19(1)(g) of the Constitution.

36. Almost for the same reasons, argument predicated on Article25 of the Constitution need not detain us. We proceed on the assumptionthat burning of crackers during Diwali is a part of religious practice.FThe question is as to whether it should be allowed to be continued in thepresent form without any regulatory measures, as a part of religiouspractice, even if it is proving to be a serious health hazard. We feel thatArticle 25 is subject to Article 21 and if a particular religious practice isthreatening the health and lives of people, such practice is not to entitledto protection under Article 25. In any case, balancing can be done hereGas well by allowing the practice subject to those conditions which ensurenil or negligible effect on health.

37. We now deal with the argument that banning the sale offirecrackers may lead to extreme economic hardship, namely, on theone hand loss of substantial revenue and on the other hand unemploymentH

to lakhs of persons. This brings up the issue of connect or relationshipbetween the law and economics. This aspect was considered by thisCourt in Shivashakti Sugars Limited v. Shree Renuka Sugar Limitedand Others, (2017) 7 SCC 729, and the relevant portion whereof isreproduced below:

“43...Interface between Law and Economics is much morerelevant in today’s time when the country has ushered into theera 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 allefforts are made, at all levels, to ensure that it becomes a fullydeveloped economy. Various measures are taken in this behalf bythe policy-makers. The judicial wing, while undertaking the taskof performing its judicial function, is also required to perform itsrole in this direction. It calls for an economic analysis of lawapproach, most commonly referred to as “Law and Economics”[ Richard A. Posner in his book Frontiers of Legal Theoryexplains this concept as follows:”Economic analysis of law hasheuristic, descriptive and normative aspects. As a heuristic, it seeksto display underlying unities in legal doctrines and institutions; inits descriptive mode, it seeks to identify the economic logic andeffects of doctrines and institutions and the economic causes oflegal change; in its normative aspect it advises Judges and otherpolicy-makers on the most efficient methods of regulatingconduct through law. The range of its subject-matter has becomewide, indeed all-encompassing. Exploiting advances in theeconomics of nonmarket behaviour, economic analysis of law hasexpanded far beyond its original focus on antitrust, taxation,public utility regulation, corporate finance, and other areas ofexplicitly economic regulation. (And within that domain, it hasexpanded 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, criminallaw, free speech, procedure, legislation, public international law,the law of intellectual property, the rules governing the trial andappellate process, environmental law, the administrative process,the regulation of health and safety, the laws forbiddingdiscrimination in employment, and social norms viewed as a source A

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of, an obstacle to, and a substitute for formal law.”Posner alsomentioned that this interface between Law and Economics mightgrandly be called “Economic Theory of Law”, which is built on apioneering article by Ronald Coase [R.H. Coase, “The Problemof Social Cost”, 3 Journal of Law and Economics 1 (1960)]: ”The“Coase Theorem” holds that where market transaction costs arezero, the law’s initial assignment of rights is irrelevant toefficiency, since if the assignment is inefficient the parties willrectify it by a corrective transaction. There are two importantcorollaries. The first is that the law, to the extent interested inpromoting economic efficiency, should try to minimize transactioncosts, for example by defining property rights clearly, by makingthem readily transferable, and by creating cheap and effectiveremedies for breach of contract.…The second corollary of theCoase Theorem is that where, despite the law’s best efforts, markettransaction costs remain high, the law should simulate the market’sallocation of resources by assigning property rights to the highest-valued users. An example is the fair-use doctrine of copyrightlaw, which allows writers to publish short quotations from acopyrighted work without negotiating with the copyright holder.The costs of such negotiations would usually be prohibitive; ifthey were not prohibitive, the usual result would be an agreementto permit the quotation, and so the doctrine of fair use brings aboutthe result that the market would bring about if markettransactions were feasible.”] . In fact, in certain branches of Lawthere is a direct impact of Economics and economicconsiderations play predominant role, which are even recognisedas legal principles. Monopoly laws (popularly known as “Anti-trust Laws” in USA) have been transformed by Economics. Theissues arising in competition laws (which has replaced monopolylaws) are decided primarily on economic analysis of variousprovisions of the Competition Commission Act. Similar approachis to be necessarily adopted while interpreting bankruptcy laws oreven matters relating to corporate finance, etc. The impress ofEconomics is strong while examining various facets of the issuesarising under the aforesaid laws. In fact, economic evidence playsa big role even while deciding environmental issues. There is agrowing role of Economics in contract, labour, tax, corporate and other laws. Courts are increasingly receptive to economicarguments while deciding these issues. In such an environment itbecomes the bounden duty of the Court to have the economicanalysis and economic impact of its decisions.”

38. Applying the aforesaid principle, in the first blush it may appearthat the aforesaid argument has substantial force in it. However, thatwould be only one side of the picture as there are two contra argumentswhich are sufficient to take the sheen out of the aforesaid plea. Firstaspect is that the argument of economic hardship is pitched against rightto health and life. When the Court is called upon to protect the right tolife, economic effect of a particular measure for the protection of suchright to health will have to give way to this fundamental right. Secondfactor, which is equally important, is that the economic loss to the Stateis pitched against the economic loss in the form of cost of treatment fortreating the ailments with which people suffer as a result of burning ofthese crackers. Health hazards in the form of various diseases that arethe direct result of burning of crackers have already been noted above.It leads to asthma, coughing, bronchitis, retarded nervous systembreakdown and even cognitive impairment. Some of the diseases continueon a prolonged basis. Some of these which are caused because of highlevel of PM2.5 are even irreversible. In such cases, patients may have tocontinue to get the medical treatment for much longer period and evenfor life. Though there are no statistics as to what would be the cost fortreating such diseases which are as a direct consequence of fireworkson these occasions like Diwali, it can safely be said that this may also besubstantial. It may be more than the revenue which is generated fromthe manufacturers of the crackers. However, we say no more for wantof precise statistical data in this behalf.

39. With this, we come to the most important issue, viz. whetherthere has to be a complete ban on display of fireworks during Diwali orit can be controlled/regulated in a manner which may not result into airpollution or may be least intrusive.

40. It would be significant to mention at this stage that there havebeen lots of efforts for production of firecrackers which do not containharmful chemicals and thereby not causing air pollution, which are eventermed as ‘Green Crackers’. The Union of India was asked to delveon this aspect. In fact, during the hearing of this matter, order was A

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Apassed on August 14, 2018 giving direction to respondent No.1 to give itscomplete suggestions to deal with the problems and issues involved whichhave been recapitulated above. This order reads as under:

“Further arguments heard in these matters. Arguments have notbeen concluded.

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We are of the opinion that Union of India/Ministry ofEnvironment should come out with its concrete suggestions todeal with problems and issues which are involved in thesepetitions and what short term measures can be adopted to tacklethe pollution problem which occurs due to firecrackers duringCDiwali. Such affidavit shall be filed by or before next date ofhearing.

List on 21.8.2018.”

41. Pursuant to the aforesaid direction, respondent No.1 has filedits affidavit on August 21, 2018. This affidavit sates that the MinistryDconsulted : (i) The Council of Scientific & Industrial Research (CSIR) -National Environment Engineering Research Institute (NEERI), (ii)PESO, and (iii) CPCB regarding concrete solutions and short-termmeasures to be adopted to tackle the pollution problem which occursdue to firecrackers during Diwali. Suggestions are received from theEaforesaid bodies which are annexed as Annexures R-1, R-2 and R-3respectively. Based on those suggestions, the Ministry has given thefollowing short-term measures/actions which it proposes to tackle thepollution problem due to firecrackers during forthcoming Diwali inNovember 2018:

“I. To address issue of high contents of unburnt material orFpartially combusted material due to usage of poor quality ofraw material, Raw Material Characterisation Facilities shallbe established to maintain quality of the raw materials in gunpowder and flash powder as per specifications of PESO.Testing of raw materials shall be initiated at CSIR - KaliswariGJoint Facility or PESO or any of the other manufacturer withrequisite facilities.

II. Use of Reduced Emission firecrackers (Improved crackers) -(a) Avoidance of use of ash as desiccant or filler materials in H

crackers for reduction in particulate mater by 15-20%. Thesecan be implemented subject to approval by PESO, and (b)usage of charcoal meeting specifications of explosives andpyrotechnics as prescribed by PESO.

III. Use of Reduced Emission firecrackers (Green crackers: Safewater and air sprinklers (SWAS) - Low emission sound andlight emitting functional crackers with PM reduction by30-35% and significant reduction in NOx and SO2 due toin-situ water generation as dust suppressant and low cost dueto usage of low cost oxidants. These can be implementedsubject to approval by PESO.

IV. PESO will ensure fireworks with permitted chemicals only tobe purchased/possessed/sold/used during Diwali and shall testand check for the presence of banned chemicals likelithium/arsenic/antimony/lead/ mercury. PESO will ensuresuspension of the licenses of manufacturers of such fireworksitems 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 marketand will ensure to take action by suspending the licenses ofthe manufacturers on such violations and disposal of such lots.

VI. Diwali data of 2017 shows that average PM2.5 was 604ug/m3, whereas, Aluminum and Barium in PM2.5 were 159ug/m3 (about 4 times of AAQCVs) wand 35 ug/m3 (about 9times of AAQCVs) respectively. Iron was well within theprescribed limits. Aluminum is used as fuel in fireworks inand to give white brilliant sparkle. Ba is added to give onlyattractive green colour which is not essential forpyrotechnics. Aluminum may cause dermatitis and havingbio-accumulation potential in case of long exposure. Ba saltsemit poisonous gas causing respiratory problem in short-termexposure too and may have other health complications inlong-term exposure. Therefore, as immediate measure, baningof Barium salts in fireworks may be considered. PESO maybe asked to review the chemical composition of fireworks,particularly reducing Aluminum content.

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AVII. CPCB and respective State Pollution Control Boards/Pollution Control Committees (SPCBs/PCCs) of the Statesand Union Territories shall carry out short-term monitoring intheir cities for 14 days (commencing from 7 days prior toDiwali and ending 7 days after Diwali) for the parametersnamely, Aluminum, Barium, Iron apart from the regulatoryBparameters against the short-term Ambient Air QualityCriteria Values (AAQCVs) proposed by CPCB with regardto bursting of firecrackers. This will help in generation ofdata on pollution caused by the bursting of firecrackers andwould be helpful for regulation and control quantity ofCAluminum, Barium and Iron used in the manufacture offirecrackers.

VIII. The manufacture, sale and use of joined firecrackers (seriescrackers or laris) may be banned as the same causes hugeair, noise and solid waste problems.D

IX. Major Indian cities may explore the option of communityfirecracking with strict time restriction as adopted in somecountries. Other restriction that can be explored include -bursting of firecrackers may be allowed only in the areas/fields pre-identified and pre-designated by respective StateEGovernments.

X. Extensive public awareness campaigns shall be taken up by theCentral Government/State Governments/ Schools/Colleges in-forming the public about the harmful effects of firecrackers.”

42. We are of the opinion that the aforesaid suggestions strive aFnice balance between the two competing interests. We accept theaforesaid measures as suggested by the Union of India and direct theUnion of India and other concerned authorities to implement the samewith immediate effect. In view thereof, following specific directions areissued:G(i) The crackers with reduced emission (improved crackers) andgreen crackers, as mentioned in Suggestion Nos. II and III aboveonly would be permitted to be manufactured and sold.

(ii) As a consequence, production and sale of crackers other thanthose mentioned in Suggestion Nos. II and III is hereby banned.H

(iii) The manufacture, sale and use of joined firecrackers (seriescrackers 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 beensured that these licensed traders are selling those firecrackerswhich are permitted by this order.

(v) No e-commerce websites, including Flipkart, Amazon etc., shallaccept any online orders and effect online sales. Any suche-commerce companies found selling crackers online will behauled up for contempt of court and the Court may also pass, inthat 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 itsreport in respect thereof within a period of two weeks fromtoday. For undertaking this exercise, PESO would also associateFRDC.

(viii) Even those crackers which have already been produced andthey do not fulfill the conditions mentioned in Suggestion Nos. IIand III above will not be allowed to be sold in Delhi and NCR.

(ix) PESO will ensure fireworks with permitted chemicals only tobe purchased/possessed/sold/used during Diwali and all otherreligious festivals, of any religion whatsoever, and other occasionslike marriages, etc. It shall test and check for the presence ofbanned chemicals like Lithium/Arsenic/ Antimony/Lead/Mercury.

(x) PESO will ensure suspension of the licenses of manufacturersof 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 andwill ensure to take action by suspending the licenses of themanufacturers on such violations and disposal of such lots. Toadd to it, as mentioned in the order dated September 12, 2017,the directions issued and restrictions imposed in the order passed A

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Aby this Court on July 18, 2005 in Noise Pollution (V) shallcontinue to be in force.

(xii) Direction Nos. 4 to 9 and 11 contained in the order datedSeptember 12, 2017 shall continue to operate and are reiteratedagain.

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(xiii) Extensive public awareness campaigns shall be taken up bythe Central Government/State Governments/Schools/ Collegesinforming 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 beCfrom 8:00 p.m. till 10:00 p.m. only. On Christmas even andNew 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 theState Governments of the NCR would permit communityDfirecracking only (for Diwali and other festivals etc. asmentioned above), wherever it can be done. For this purpose,particular area/fields would be pre-identified and predesignatedby the concerned authorities. This exercise shall be completedwithin a period of one week from today so that the public atElarge is informed about the designated places one week beforeDiwali. The areas designated now for the purpose of Diwalishall be valid for community firecracking on other occasions/festivals as well, as mentioned above. Even for marriagesand other occasions, sale of improved crackers and greencrackers is only permitted.

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(xvi) All the official respondents, and particularly the Police, shallensure that fireworks take place only during the designated time and at designated places, as mentioned above. They shallalso ensure that there is no sale of banned firecrackers. Incase any violation is found, the Station House Officer (SHO)of the concerned Police Station of the area shall be heldpersonally liable for such violation and this would amount tocommitting 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 Statesand Union Territories shall carry out short-term monitoring intheir cities for 14 days (commencing from 7 days prior toDiwali and ending 7 days after Diwali) for the parametersnamely, Aluminum, Barium, Iron apart from the regulatoryparameters against the short-term Ambient Air Quality CriteriaValues (AAQCVs) proposed by CPCB with regard to burstingof firecrackers. This will help in generation of data on pollutioncaused by the bursting of firecrackers and would be helpfulfor regulation and control quantity of Aluminum, Barium andIron used in the manufacture of firecrackers.

43. One clarification needs to be given at this stage. Our discussionpertaining to the arguments based on Article 19(1)(g), Article 25 as wellas the argument of loss of substantial revenue and unemployment, incases the manufacture and sale of the firecrackers is totally banned, isprima facie and we have not given our conclusive determination. It isbecause of want of detailed studies on various aspects which have beenmentioned and taken note of during discussion in this order. However,we also make it clear that, prima facie, we do not find much merit inthese arguments for which we have given our reasons in brief.

44. Having regard to the overall circumstances, we have decidedthat, for the time being, a balanced approach to tackle this problem isneeded, which may take care of the concerns of both the parties and, atthe same time, provide a reasonable and adequate solution. When thepicture would become clearer after the requisite studies/research isundertaken, more stringent measures can be adopted in future if thesituation so warrants.

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504SUPREME COURT REPORTS[2018] 13 S.C.R.

A45. All the interlocutory applications seeking impleadment,intervention, directions, modification, etc. are disposed of in the aforesaidterms.

46. The writ petitions be listed on December 11, 2018.

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Divya Pandey

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