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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO.4  

IN  

WRIT PETITION (CIVIL) No.728  OF 2015

ARJUN GOPAL AND ORS.                   .. PETITIONER (S)

VERSUS

UNION OF INDIA & ORS.                     ..RESPONDENT (S)

ORDER

The petitioners  have approached this  Court  seeking emergent

reliefs in relation to the extreme air pollution in the National Capital

Region (hereinafter “NCR”).  

2. We have heard Mr. K.K. Venugopal and Ms. Vibha Datta Makhija,

learned  senior  counsel  for  the  petitioners  and  Mr. C.A.  Sundaram,

learned senior counsel for the respondent.  The petitioner has sought

wide  ranging  reliefs  against  the  use  of  fireworks  (including  fire

crackers), prevention of harmful crop burning, dumping of malba and

further  steps  towards  environmental  purity.   We  have,  however,

restricted this order to grant of interim relief in respect of fireworks.

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3. The  primary  contention  of  the  petitioners  is  that  the  use  of

fireworks in the NCR has posed a serious problem to the inhability of

the  air  during  Diwali  and  the  wedding  season.   According  to  the

petitioners, the problem has reached proportions in the NCR which are

not tolerable and are causing immense harm to the peace, well-being

and health both physical and mental.  In fairness, we must say that

there  was  no  serious  opposition  to  the  impact  of  fireworks  on  the

ambient  air  and  the  unhealthy  effects  of  fireworks  on  it.   The

opposition  was  mainly  about  the  total  banning  of  fireworks  in  all

circumstances.   

4. The onset of winter and the festival/marriage season this year,

presented to the residents of NCR severe concerns regarding the air

quality standards. According to reports,  the air  quality  standards in

early November of this year were the worst in the world. It is reported

that  the  PM 2.5  levels  recorded  where  “beyond  scale”  values  [see

India’s air quality among world’s worst over Diwali weekend: Report.

November 4,  2016,  Hindustan Times].  The report  indicates that  24

hour average of PM 2.5 levels in South Delhi in 2016 were 38% higher

than on the Diwali night of 2015. The day after Diwali, these levels

were  twice  as  high  as  the  day  after  Diwali  in  2015,  crossing  650

µg/m³,  which  is  26  times  above  the  WHO’s  standards  or  levels

considered safe. Shockingly, on the morning of 1.11.2016, Delhi woke

up to an average PM 2.5 level of over 700 µg/m³–some of the highest

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levels recorded the world over and 29 times above WHO standards.

The report further states that the WHO guideline for 24-hour average

PM 2.5 levels is 25 µg/m³ and with an annual average PM 2.5 level of

122  µg/m³,  Delhi’s  air  is  the  worst  among  global  megacities  with

dense populations. We have particularly referred to the PM 2.5 levels

because of  the  extreme effects  and near  invisibility  of  this  type  of

particulate matter. PM 2.5 or particulate matter 2.5 (PM2.5), refers to

tiny particles or droplets in the air that are two and one half microns or

less in width. It may be noted that the widths of the larger particles in

the PM2.5 size range would be about thirty times smaller than that of

a human hair. These particles primarily emanate from vehicle exhausts

and other operations that involve the burning of fuels such as wood,

heating oil or coal, and of course, use of fire crackers.  

5. In India, air quality standards are measured in terms of the Air

Quality Index (hereainafter ‘AQI’). The AQI was launched in India on

17.10.2014 by the Ministry of Environment and Forests. According to

the press release of the Press information Bureau of the same date, it

consists of a comprehensive set of parameters to monitor and asses

the air quality. The AQI considers eight pollutants (PM10, PM2.5, NO2,

SO2, CO, O3, NH3, and Pb), and based on the levels of these pollutants

six  categories  of  AQI  ranging  from  Good  to  Severe  have  been

prescribed. The index also suggests the health effects of the pollution

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category wise.  The gradation of AQI and its health impact is extracted

below:

Table -1

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AQI Associated Health Impacts Good

(0–50)

Minimal Impact

Satisfactory

(51–100)

May  cause  minor  breathing  discomfort  to

sensitive people. Moderately

polluted

(101–200)

May  cause  breathing  discomfort  to  people  with

lung disease such as asthma, and discomfort to

people  with  heart  disease,  children  and  older

adults. Poor

(201–300)

May  cause  breathing  discomfort  to  people  on

prolonged  exposure,  and  discomfort  to  people

with heart disease Very Poor

(301–400)

May  cause  respiratory  illness  to  the  people  on

prolonged  exposure.  Effect  may  be  more

pronounced  in  people  with  lung  and  heart

diseases. Severe

(401-500)

May  cause  respiratory  impact  even  on  healthy

people, and serious health impacts on people with

lung/heart  disease.  The health  impacts  may be

experienced even during light physical activity.  

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Table -2

AQI Category, Pollutants and Health Breakpoints

AQI Category (Range)

PM10 24-h

r

PM2.5 24-hr

NO2 24-hr

O3 8-hr

CO 8-hr

(mg/m3)

SO2 24-hr

NH3 24-hr

Pb 24-hr

Good (0-50) 0-50 0-30 0-40 0-50 0-1.0 0-40 0-200 0-0.5

Satisfactory (51-100)

51-1 00

31-60 41-80 51-100 1.1-2.0 41-80 201-40 0

0.5 –1.0

Moderately polluted

(101-200)

101- 250

61-90 81-18 0

101-16 8

2.1- 10 81-380 401-80 0

1.1-2 .0

Poor (201-300)

251- 350

91-12 0

181-2 80

169-20 8

10-17 381-80 0

801-12 00

2.1-3 .0

Very poor (301-400)

351- 430

121-2 50

281-4 00

209-74 8*

17-34 801-16 00

1200-1 800

3.1-3 .5

Severe (401-500)

430 +

250+ 400+ 748+* 34+ 1600+ 1800+ 3.5+

6. Reports  indicate  that  the  AQI  in  Delhi  was  much  above  the

severe standard, shooting off the AQI 500 mark on many days this

November. On the day after Diwali, it was more than 14 times the safe

limits [see  Delhi’s pollution levels peaks at 14-16 times safe limits,

31.10.2016,  The  Hindu].  The  adverse  health  effects  of  these

hazardous levels of pollution are only too evident from the table given

above. We do not intend to refer to the multiplicity of reports and data

on this front.  

7. The hazardous levels of air pollution in the last few weeks has

spared very few from its ill effects. The life of the citizens of NCR was

brought to a virtual standstill,  not to speak about the plight of the

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thousands of mute flora and fauna in NCR. Schools were declared shut,

denizens  of  the  city  advised  to  stay indoors,  construction  activities

stopped, power stations shut and ban imposed on burning of garbage

and agricultural  waste.  The fall  in  air  quality  has  had a  significant

impact on people’s lifestyle as well. The rising costs to protect against

air pollution are substantial. It has come to our notice that people are

queuing up to purchase protective masks and air purification systems

in the wake of dense smog all over the NCR. In short, the capital was

‘smogged’ into an environmental emergency of unseen proportions.  

8. The adverse effects of these extreme levels of air pollution spare

no  one-  the  young,  the  old,  the  infirm  and  even  the  future

generations. A study of the data of the Global Health Depository of the

World Health Organization reveals that India has the world’s highest

death rate from chronic respiratory diseases and that about 1.5 million

people in India die annually due to indoor and outdoor pollution [ see

Delhi  Wakes  up  to  an  Air  Pollution  Problem  It  Cannot  Ignore,

15.2.2015,  The  New  York  Times].  The  Kolkata-based  Chittaranjan

National Cancer Institute (CNCI), in a study commissioned and handed

over to the Central Pollution Control Board, found that key indicators of

respiratory  health,  lung  function  to  palpitation,  vision  to  blood

pressure, of children in Delhi, between four and 17 years of age, were

worse off than their counterparts elsewhere. It also found that more

than 40 percent of the school children suffer from lung damage [see

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constitutionally bound to address their grave concerns. May we remind

ourselves, that this is not the first time that this court was impelled

into ensuring clean air for the citizens of the capital region [see  M.C.

Mehta vs. Union of India: 1998(6) SCC 60 and 1998(9) SCC 589; M.C.

Mehta vs. Union of India 1998 (8) SCC 648;  M.C. Mehta vs. Union of

India 1998(8) SCC 206].  

11. During the festival- marriage season in Delhi,  that is between

October and February, a report suggests that more than 40 recognized

and other dangerous  forms  of  firecrackers  are  used  [see  Fireworks

make Diwali a Dangerous Festival for All, 4.11.2015, Down to Earth].

These  fireworks  release  a  deadly  concoction  of  fumes  into  an

almost-still winter air in Delhi, causing extreme air pollution during this

time. These fire crackers apart from causing acute air pollution also

cause severe noise pollution. A study suggests that fireworks emit fine

particles  of  various  elements  like  Copper,  Barium,  Strontium,

Magnesium and Potassium, all of which are used to provide the colour

and glitter  to fireworks [ see  The Impact of  Fireworks on Airborne

Particles, Atmospheric Environment, Volume 42, Issue 6, 2008, pages

1121-1132].   

12. The latest report1 by the Central Pollution Control Board (CPCB)

on the ambient  air  quality  during  the  Diwali  period  shows that  air

pollution across the capital has reached record levels and has become 1 CPCB Deepawali Monitoring Report, 2016  

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intolerable. We find that the air quality in NCR is mostly poor as per

the standards prescribed by the Government of India, but it becomes

much worse during Diwali. The concentrations of PM 2.5 and PM 10

which are indicators of air quality have shown considerable increase in

the region. The following tables show the actual PM 2.5 and PM 10

levels in Delhi during the Diwali 2016 period according to the CPCB

report.

TABLE - 3

PM 10 (in µg/m³) LEVELS IN DELHI

STATION

PRE - DIWALI DIWALI DAY

2015 2016 2015 2016

ITO 166 203 531 878

PITAMPURA 161 368 460 1297

JANAKPURI 119 213 554 902

PARIVESH BHAWAN 166 324 593 1183

DILSHAD GARDEN NA NA NA NA

SHADIPUR NA NA NA NA

NSIT, DWARKA NA NA NA NA

R K PURAM NA 346 NA 454

MANDIR MARG NA 236 NA 428

PUNJABI BAGH NA 236 NA 779

ANAND VIHAR NA 644 NA 1084

AVERAGE 153 321.25 534.5 875.62

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TABLE - 4  

PM 2.5 (in µg/m³) LEVELS IN DELHI  

STATION

PRE - DIWALI DIWALI DAY

2015 2016 2015 2016

ITO NA 104 NA 797

PITAMPURA 117 102 435 1238

JANAKPURI 84 96 459 842

PARIVESH  BHAWAN

96 84 474 958

DILSHAD GARDEN 78 119 192 602

SHADIPUR 108 62 121 474

NSIT, DWARKA 191 118 99 457

R K PURAM NA 144 NA 285

MANDIR MARG NA 92 NA 296

PUNJABI BAGH NA 108 NA 402

ANAND VIHAR NA 178 NA 430

AVERAGE 112.33 109.72 296.67 616.45

13. The CPCB report  indicates  that  air  pollution levels  across  the

region rises by about 4–5 times on Diwali as a consequence of burning

of  fireworks.  Numerous  accidents  take  place  due  to  unregulated

manufacture,  storage  and  transport  of  fireworks  resulting  in

substantial damage to life and property. Further, unsupervised bursting

of fireworks also leads to many accidents where unfortunately most

victims are children. They are a source of both, air pollution and noise

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pollution.  Something that is meant to be a celebration seems to be

destroying the peace and tranquility which is necessary for rest.

14. Grievance was made before us about the thousands, even a lakh

of crackers on one string going off at night; and several such strings

going  off  in  the  neighborhood,  totally  unmindful  of  the  aged,  the

tender and the ill. All this firework, even that which is not noisy, leaves

the ambient air  thick with noxious particles.   Marriage processions,

barats, passing through an area generated the same kind of noise and

leave behind the same kind of air, by the use of fire crackers. It is not

necessary to speculate if those who suffer send their good wishes for

the event, or to those ‘celebrating’ Diwali in this way.  

15. We are conscious that we are dealing with time honoured ways

of celebrating certain occasions. The petitioners and every member of

the Bench and the Bar also celebrate in the same way. But does that

justify the continuance of this manner of celebration, when the quality

of air in the region is so poor and injurious to health and well being

and  is  destroying  essential  components  of  the  freedom  to  live  a

healthy life?  In any case till  the quality of air  improves we do not

pronounce finally on this question at this stage.

16. It is however certain that, now, when the Air Quality Index in the

NCR  is  abysmally  and  threateningly  severe,  allowing  free  trade  in

fireworks which is  a major source of noise and air  pollution and is

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causing immense harm to the lives and health of citizens, and allowing

availability  of  such  fireworks  or  explosives  constitutes  a  serious

invasion of the Freedoms and Rights conferred on citizens by Part III of

the Constitution of India. Such an invasion is all the more deleterious

towards the rights and freedom of the poor and the underprivileged

who  must  breathe  such  air  without  any means  of  protecting

themselves.

17. There is no doubt that protecting citizens (including those who

use  fireworks)  by  making  these  unavailable  in  the  market  would

require  the  suspension  of  trade  of  a  miniscule  section  of  the

population.  Maybe  they  have  acquired  stocks  for  sale  or  obtained

credit for their business. We are however of the view, that balancing

the  vital  interests  of  the  vast  majority  of  citizens  against  the

commercial interests of a few, the balance must heavily tilt in favour of

citizens in general.  

18. We are aware that we are only issuing interim directions, and

much is left to be heard, discussed and said about the rival claims and

contentions.  What is however indisputable is that the harmful effects

of fireworks on the ambient air and the lungs, eyes and ears of people.

What  is  also  obvious  is  the  extreme  nuisance,  noise  the  fireworks

cause  to  citizens  particularly  the  ailing  and  the  aged.   Therefore,

though much can be argued as always about the significance and even

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joy  of  bursting  fireworks.  But  at  the  same,  prima  facie,  a  just

constitutional  balance,  must  overwhelmingly  prioritize  the  harmful

effects  of  this  hazardous  air  on  present  and  future  generations,

irreversible  and  imperceptible  as  they  are,  over  the  immediate

commercial  constraints  of  the  manufacturers  and  suppliers  of

fireworks.  Secondly, this court recognizes that the duty to ensure a

healthy environment not only falls on the State in terms of Article 48-A

of the Constitution of India but also on all citizens under Article 51A

(g)  of  the  Constitution.  This  Court  has  previously  held  that

fundamental duties in Part IV A of the Constitution could be a guiding

factor  in  testing  the  reasonableness  of  restrictions  under  Article

19(2)-(6)  of  the  Constitution  of  India  [  See  State  of  Gujarat  v.

Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534; para 58] The

principle of inter-generational equity, recognized and applied by this

Court in a number of decisions, beaconing us to the health and needs

of  the  future  generation,  also  favours  the  issuance  of  interim

directions. Lastly, the precautionary principle, affirmed by this court in

Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647,

mandates  that  where  there  are  threats  of  serious  and  irreversible

damage, lack of scientific certainty should not be used as a reason for

postponing measures to prevent environmental degradation.    

19. We thus consider it inappropriate that explosives which are used

as fireworks should be available in the market in the NCR till further

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orders. The mechanism of the law in this regard is clear. Rule 1182 of

the  Explosive  Rules,  2008,  framed  under  the  Explosives  Act,  1884

provides for the manner in which licenses issued under the Explosives

Act  to  store  and  sell  explosives  could  be  suspended  or  cancelled.

Sub-Rule(5) thereof specifically confers on the Central Government a

power to suspend or cancel  a license if it considers that it is in public

interest. This provision also makes it clear that an opportunity to hear

the  licensee  could  be  dispensed  with  if  the  Central  Government

considers that in public interest. This Court finds that the grave air

quality  situation  in  NCR  is  one  such  case,  where  this  Court,  can

intervene and suspend the licenses to store and sell fireworks in the

NCR. We direct the Central Government to:-  2.  Suspension and revocation or cancellation of licence.—(1) Every licence granted under these rules shall— (I) stand cancelled, if— (a) the licensee has ceased to have any right for the lawful possession over the licensed premises; (b) the licensee is convicted and sentenced under any criminal offences or ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974), a bond for keeping peace for good behaviour. (II) stand cancelled, if the no-objection certificate is cancelled by the authority issuing the same or District Magistrate or the State Government in accordance with rule 115. (III) be liable to be suspended or cancelled by an order of the licensing authority for any contravention of the Act or these rules or of any condition contained in such licence, or by order of the Central Government, if it is satisfied that there are sufficient grounds for doing so: Provided that before suspending or cancelling a licence under this rule, the holder of the licence shall be given an opportunity of being heard. (2) The suspension or cancellation shall take effect from the date specified therein. (3) An order of suspension or revocation of a licence shall be deemed to have been served if sent by post to the address of the licensee entered in the licence.  (4) The suspension of  a  licence shall  not  debar the holder  of  the licence from applying  for  the  renewal.  (5)  Notwithstanding  anything  contained  in  sub-rule  (1),  an opportunity of being heard may not be given to the holder of the licence before his licence is suspended or cancelled in cases—(i) where the licence is suspended by a licensing authority as an interim measure for violation of any of the provisions of the Act or these rules or of any conditions contained in such licence and in his opinion such violation is likely to cause imminent danger to the public: Provided that where a licence is so suspended, the licensing authority shall give the holder of the licence an opportunity of being heard before the order of  suspension  is  confirmed;  or  (ii)  where  the licence  is  suspended  or  cancelled  by the Central  Government,  if  that  Government  considers  that  in  the  public  interest  or  in  the interest of the security of the State, such opportunity should not be given. (6) A licensing authority  or  the Central  Government suspending  or  cancelling  a licence shall  record its reason for so doing in writing.

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(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 of this   

Court.

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

20. In  addition  to  the  above,  we  direct  the  CPCB  to  study  and

prepare a report  on the harmful  effects  of the materials  which are

currently being used in the manufacture of fireworks.  The report shall

be submitted within a period of three months to this Court.

……………….…..........…..CJI       [ T.S. THAKUR ]

.......................………J.                                                                            [ A.K. SIKRI ]

.......................………J.                                                                            [ S.A. BOBDE ]

NEW DELHI,    NOVEMBER  11, 2016

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