REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

IA NOS. 6 AND 8 OF 2016 IA NOS. 10, 11, 80176, 96202, 109668, 109720 AND 122778 OF 2017

IA NOS. 68888 AND 68897 OF 2018 IN

WRIT PETITION (CIVIL) NO. 728 OF 2015

ARJUN GOPAL AND OTHERS .....APPELLANT(S)

VERSUS

UNION OF INDIA AND OTHERS .....RESPONDENT(S)

W I T H

WRIT PETITION (CIVIL) NO. 891 OF 2016

WRIT PETITION (CIVIL) NO. 895 OF 2016

WRIT PETITION (CIVIL) NO. 899 OF 2016

A N D

WRIT PETITION (CIVIL) NO. 213 OF 2017

J U D G M E N T

A.K. SIKRI, J.

Writ Petition (Civil) No. 728 of 2015 was filed on September

24, 2015 on behalf of three infants, who are made petitioners in

this writ petition.  Petitioner No.1 and 2, on the date of filing of this

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writ  petition,  were  six  months  old  and  petitioner  No.3  was

fourteen months old.  This petition has been filed through their

next friends, i.e. their fathers, who are concerned about the health

of their children as they feel that due to the alarming degradation

of the air quality, leading to severe air pollution in the city of Delhi

(where these petitioners reside),  the petitioners may encounter

various health hazards.  Poor, very poor or severe air quality/air

pollution affects all citizens, irrespective of their age.  However,

claim the petitioners,  children are much more vulnerable to air

pollutants as exposure thereto may affect them in various ways,

including aggravation of  asthma,  coughing,  bronchitis,  retarded

nervous system breakdown and even cognitive impairment.  The

petition  accepts  that  there are  number  of  reasons which have

contributed  to  poor  air  quality  in  Delhi  and  National  Capital

Region (for short, ‘NCR’).  At the same time, it is emphasised that

air  pollution  hits  its  nadir  during  Diwali  time  because  of

indiscriminate  use  of  firecrackers,  the  chemical  composition

whereof increases harmful particulate matters such as PM2.5 or

PM10 at  alarming  level  thereby  bringing  the  situation  of

‘emergency’.  The petitioners have, thus, prayed for direction to

the official respondents to take possible measures for checking

the pollution by stricking at  the causes of  the pollution,  which

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includes  seasonal  crop  burning,  indiscriminate  dumping  of

dust/malba and other pollutants, etc.  The prayer also includes

banning the use, in any form, of firecrackers, sparkles and minor

explosives, in any form, during festivals or otherwise.

2) This petition came up for preliminary hearing on October 08, 2015

when notice was issued and the matter was directed to be listed

on October 16, 2015 at 2:00 p.m. since the petitioners wanted

stay on burning of crackers during Diwali, which was around the

corner in that year.  When the matter was taken up on October

16, 2015, certain suggestions were made by the learned counsel

appearing for the petitioners, which were as under:

“1. Restrict licenses to low hazard fireworks.

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

3. Restrict window for use of fireworks to be from 7:00 p.m. to 9:00 p.m.

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

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

6. Encourage teachers  to  tell  students  not  to buy and use fireworks.”

3) Suggestion Nos. 5 and 6 were accepted and the relevant portion

of the order that was passed reads as under:

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“In our view for the present, if we accept suggestion Nos. 5 and  6  it  will  not  in  any  way  affect  the  interest  of  the respondents.

Shri  Ranjit  Kumar,  learned  Solicitor  General appearing  for  the  Union  of  India  states  that  the  Union Government has already taken enough and effective steps to give wide publicity to the ill effects of fireworks.

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

“The Union Government and all  the State Governments will give wide publicity both in print and Electronic media to  the  ill  effects  of  fireworks  and  advise  people accordingly.

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

4) Thereafter,  this  petition  was taken  up  along  with  certain  other

connected petitions, including Writ  Petition (Civil)  No. 13029 of

1985  titled  ‘M.C.  Mehta  v.  Union  of  India’  and  orders  dated

December 16, 2015 were passed issuing several directions with a

view to reducing the levels of air pollution within the NCR, as the

issues in those writ petitions pertained to air pollution in Delhi and

NCR as well.   It  may be mentioned that  the directions issued

therein were general in nature though concerning the problem of

air pollution.  Thereafter also the instant writ petition, along with

the M.C. Mehta case and other cases, came up for hearing and it

is not necessary to take note of all those orders.

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5) Pertinently,  during  Diwali of  2016,  which  was  celebrated  on

October  30,  2016,  the air  quality  in  Delhi  and NCR worsened

alarmingly.  In fact, certain reports indicated that the air quality

standards in early November of that year were the worst in the

world.  This prompted the Court to take up IA No.4 filed in this writ

petition.   After  hearing  the  parties,  it  passed  orders  dated

November 11, 2016.

6) The  petitioners  had  pressed  for  interim  relief  in  respect  of

fireworks,  drawing  the  attention  of  this  Court  to  the  emergent

situation that has resulted in worsening the air quality standards

in Delhi and National Capital Region (NCR) because of extensive

use of fireworks, including firecrackers during Diwali last year.  It

was pointed out that onset of winter itself deteriorates air quality

in this region and it gets aggravated because of festival/marriage

season that occurs during these very months.  Taking note of the

aforesaid factors, particularly impact of fireworks on the ambient

air  and  unhealthy  effects  thereof  which  had  created

unprecedented situation in  Delhi,  with air  pollution going up at

alarming levels and making it the most polluted city in the world,

the order dated November 11, 2016 was passed.  Air pollution

had gone up to 29 times above the World Health Organisation

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(WHO) standards.  In the aforesaid scenario, this Court deemed it

proper to pass certain directions vide its order dated November

11, 2016 in IA No.4.  Snapping the supply chain of fireworks was

considered  to  be  the  more  practical  way  of  addressing  the

menace  instead  of  banning  the  burning  the  crackers  by

individuals as it would have been difficult to monitor and enforce

the burning of the crackers by the citizenry.

7) In paragraph 18 of the Order dated November 11, 2016 it was

clarified that much was left to be heard, discussed and said about

the rival claims and contentions.  However, the Court hastened to

add that harmful effects of fireworks on the ambient air and the

lungs, eyes and ears of people was also an acknowledged fact,

as can be seen from the following portion of the said paragraph:

“18.   We  are  aware  that  we  are  only  issuing  interim directions, and much is left to be heard, discussed and said about the rival claims and contentions.  What is however indisputable is that the harmful effects of fireworks on the ambient air and the lungs, eyes and ears of people.  What is also obvious is the extreme nuisance, noise the fireworks cause  to  citizens  particularly  the  ailing  and  the  aged. Therefore,  though much can be argued as always about the significance and even joy of bursting fireworks, but at the  same  time  (sic),  prima  facie,  a  just  constitutional balance must overwhelmingly prioritize the harmful effects of  this  hazardous air  on present  and future generations, irreversible  and  imperceptible  as  they  are,  over  the immediate  commercial  constraints  of  the  manufacturers and suppliers of fireworks…”

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8) In the process, this Court also recognised the duty of the State to

ensure  a  healthy  environment  in  terms  of  Article  48A of  the

Constitution of India as well as the duty of the citizens to ensure

the same under Article 51A(g) of the Constitution.  The Court also

reminded itself  of  the “precautionary principle” which mandates

that where there are threats of serious and irreversible damage,

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

postponing measures to prevent environmental degradation.  In

the order the Court had taken note of the deleterious effects of air

pollution  on  the  health  of  the  people,  particularly  the  children.

Going by all these considerations, the Court  passed the following

directions:

“19.   We  thus  consider  it  inappropriate  that  explosives which  are  used  as  fireworks  should  be  available  in  the market in the NCR till further orders.  The mechanism of the law in this regard is clear.  Rule 118 of the Explosive Rules,  2008,  framed  under  the  Explosives  Act,  1884, provides for the manner in which licenses issued under the Explosives  Act  to  store  and  sell  explosives  could  be suspended or cancelled.  Sub-Rule (5) thereof specifically confers on the Central Government a power to suspend or cancel a license if it considers that it is in public interest. This  provision also makes it  clear  that  an opportunity  to hear the licensee could be dispensed with if  the Central Government considers that in public interest.   This Court finds that the grave air quality situation in NCR is one such case,  where  this  Court,  can  intervene  and  suspend  the licenses to store and sell fireworks in the NCR.  We direct the Central Government to:

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

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

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

20.  In addition to the above, we direct the CPCB to study and prepare a report on the harmful effects of the materials which  are  currently  being  used  in  the  manufacture  of fireworks.  The report shall be submitted within a period of three months to this Court.”

9) Since direction was given to the Central Pollution Control Board

(CPCB) to study and prepare a report of the harmful effects of the

materials which are currently being used in the manufacture of

fireworks and submit a report within three months, the matter was

taken up for consideration thereafter from time to time.

10) Thereafter, the manufacturers of firecrackers as well as license

holders  also filed  applications for  modification of  the aforesaid

interim order.   It  included IA No.  52448 of  2017.   Because of

these applications, the matter was heard by a Bench of this Court

and  orders  dated  September  12,  2017  were  passed  in  the

aforesaid IA.  In this order also, the Court recognised severity of

air  pollution in Delhi  and NCR.  The Court  also discussed the

manner in which air quality had worsened due to fireworks during

Diwali  days in the year 2016.  The Court took note of the steps

that  were  taken  by  different  authorities  aiming  to  reduce  air

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pollution after the passing of orders dated November 11, 2016;

the legal provisions contained in the Explosives Act, 1884 and the

Explosive  Rules,  2008  framed  thereunder;  and  further  steps

which were needed in this behalf to reduce the pollution in Delhi

and  NCR.   The  Court  took  note  of  the  fact  that  number  of

measures were required to be taken for improving air quality as

various  factors  were  contributing  to  the  air  pollution.   It  also

specifically  mentioned that  one of  the reasons was burning of

crackers/fireworks during  Diwali.   On that basis, the Court also

accepted that one of the possible methods for reducing it during

Diwali  is by continuing the suspension of licenses for the sale of

fireworks, thereby implicitly prohibiting the bursting of fireworks.

However, at the same time, the Court expressed the opinion that

continuing the suspension of licenses might be too radical a step

to take for the present.  It was deemed appropriate to adopt a

graded  and  balanced  approach,  which  is  necessary,  that  will

reduce and gradually eliminate air pollution in Delhi and in the

NCR caused by  the  bursting  of  fireworks.  In  the  process,  the

Court  took  into  consideration  the  interest  of  those  who  had

already been granted a valid permanent licence to posses and

sell fireworks in Delhi and the NCR.  We would like to reproduce

the following paragraphs from the said order:

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

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

69.  But, from the material before us, it cannot be said with any  great  degree  of  certainty  that  the  extremely  poor quality  of  air  in  Delhi  in  November and December 2016 was  the  result  only  of  bursting  fireworks  around  Diwali. Certainly, there were other causes as well, but even so the contribution of the bursting of fireworks cannot be glossed over.   Unfortunately,  neither  is  it  possible  to  give  an accurate or relative assessment of the contribution of the other  identified  factors  nor  the  contribution  of  bursting fireworks to the poor air quality in Delhi and in the NCR. Consequently,  a  complete  ban  on  the  sale  of  fireworks would be an extreme step that might not be fully warranted by  the  facts  available  to  us.   There  is,  therefore,  some justification for modifying the interim order passed on 11th

November,  2016  and  lifting  the  suspension  of  the permanent licences.

70.  At the same time, it cannot be forgotten that admittedly there is a huge quantity  of  fireworks in Delhi  and in the NCR  and  the  figure  has  been  provided  to  us  by  the applicant.  Similarly, there can be no doubt that the Delhi Police had issued a large number of temporary licences in

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2016 and it  would  not  be  unreasonable  to  assume that around and during Diwali,  there would have been some illegal  temporary  shops  set  up,  whether  known  or  not known  to  the  police.   We  do  not  have  the  figures  with regard to  the NCR,  but  we assume that  like  in  Delhi,  a large number of temporary licences have been issued for the possession and sale of fireworks.  Therefore, there is a need to regulate  the availability  and sale of  fireworks in Delhi and the NCR.”

11) It was followed by the following directions:

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

(1)  The directions issued by this Court in Sadar Bazar Fire  Works  (Pucca  Shop)  Association shall  stand partially  modified  to  the  extent  that  they  are  not  in conformity  with  the  Explosives  Rules  which  shall  be implemented in  full  by  the  concerned  authorities.  Safety from fire hazards is one of our concerns in this regard.

(2) Specifically, Rule 15 relating to marking on explosives and packages and Rule 84 relating to temporary shops for possession  and  sale  of  fireworks  during  festivals  of  the Explosives Rules shall be strictly enforced. This should not be construed to mean that the other Rules need not be enforced  –  all  Rules  should  be  enforced.  But  if  the fireworks do not conform to the requirements of Rules 15 and 84, they cannot be sold in the NCR, including Delhi and this prohibition is absolute.

(3) The directions issued and restrictions imposed in the order passed by this Court  on 18th July,  2005 in  Noise Pollution (V) shall continue to be in force.

(4)  The  concerned  police  authorities  and  the  District Magistrates  will  ensure  that  fireworks  are  not  burst  in silence zones that is, an area at  least 100 meters away from hospitals, nursing homes, primary and district health-

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care  centres,  educational  institutions,  courts,  religious places or any other area that may be declared as a silence zone by the concerned authorities.

(5)  The  Delhi  Police  is  directed  to  reduce  the  grant  of temporary licences by about 50% of the number of licences granted in 2016. The number of temporary licences should be capped at  500.  Similarly,  the States in  the NCR are restrained from granting more than 50% of the number of temporary  licences  granted  in  2016.  The  area  of distribution  of  the  temporary  licences  is  entirely  for  the authorities to decide.

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

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

(8) The Government of NCT of Delhi and other States in the NCR may consider interacting with established medical institutions for issuing advisories cautioning people about the health hazards of bursting fireworks.

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

(10)  Fireworks  containing  aluminum,  sulphur,  potassium and barium may be sold in Delhi and in the NCR, provided the composition already approved by PESO is maintained.

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It is the responsibility of PESO to ensure compliance of the standards it has formulated.

(11) Since there are enough fireworks available for sale in Delhi and the NCR, the transport of fireworks into Delhi and the  NCR  from  outside  the  region  is  prohibited  and  the concerned  law  enforcement  authorities  will  ensure  that there is no further entry of fireworks into Delhi and the NCR till  further  orders.  In  our  opinion,  even  50,00,000  kg  of fireworks is far more than enough for Dussehra and Diwali in 2017. The permanent licensees are at liberty to exhaust their existing stock of fireworks in Delhi and the NCR and, if that is not possible, take measures to transport the stocks outside Delhi and the NCR.

(12) The suspension of permanent licences as directed by the order dated 11th November, 2016 is lifted for the time being. This might require a review after Diwali depending on the ambient air quality post Diwali. However, it is made explicit  that  the  sale  of  fireworks  by  the  permanent licensees must conform to the directions given above and must be fully in compliance with the Explosives Rules. We were informed that the permanent licences were issued by PESO  and  therefore  the  responsibility  is  on  PESO  to ensure compliance.

(13) While lifting the suspension on the permanent licences already  granted,  we  put  these  licensees  on  notice  for Dussehra and Diwali in 2018 that they will be permitted to possess  and  sell  only  50%  of  the  quantity  permitted  in 2017 and that this will  substantially reduce over the next couple of years. The permanent licensees are at liberty to file  objections  to  this  proposed  direction  within  30  days from today and thereafter the objections if any will be heard and decided.  If  no objections are filed,  this  direction will become  absolute  without  any  further  reference  to  any licensee.

(14) Since there is a lack of clarity on the safety limits of various  metals  and  constituents  used  in  fireworks,  a research study must be jointly carried out by the CPCB and the FRDC laying down appropriate standards for ambient air quality in relation to the bursting of fireworks and the release of their constituents in the air. While Schedule VII of the Environment (Protection) Rules, 1986 does deal with several  metals,  but  as  we have  seen  there  are  several other metals or constituents of fireworks that have not been

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studied  by  the  CPCB and  no  standards  have  been laid down with regard to the concentration of these metals or constituents in the ambient air. The CPCB has assured us that it will complete the exercise by 15th September, 2017 but  keeping  in  mind  its  track  record  subsequent  to  the order  dated  11th  November,  2016  this  does  not  seem possible. Therefore, we grant time to the CPCB to come out with definite standards on or before 30th September, 2017.

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

(16) Keeping in mind the adverse effects of air pollution, the human right to breathe clean air and the human right to health,  the  Central  Government  and  other  authorities should  consider  encouraging  display  fireworks  through community  participation rather than individual  bursting of fireworks.”

12) After  the aforesaid  order  was passed,  many applications were

filed,  from  both  sides,  seeking  modification  of  some  of  the

aforesaid directions.  Insofar as the petitioners are concerned, in

their  application  for  modification,  they  prayed  for  removal  of

Directions Nos. 5 and 10 to 13, which was in essence a prayer for

restoration of earlier order dated November 11, 2016.  Insofar as

fireworks  manufacturers,  traders  and  license  holders  of  the

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fireworks/firecrackers are concerned, they wanted that relaxation

given  in  the  order  dated  September  12,  2017  be  further

liberalised.

13) After  hearing both  the parties,  orders  dated October  09,  2017

were  passed.   The  Court  accepted  the  fact  that  burning  of

firecrackers during Diwali was not the only reason for air pollution

in Delhi and NCR and there was a need to tackle those factors as

well.  However, it was observed that the immediate impact of use

of  fireworks  and  firecrackers  bursting  during  Diwali  is  an

altogether different aspect.  The Court noted that there is direct

evidence of deterioration of air quality at alarming levels, which

happens every year.  Burning of these firecrackers during Diwali

in 2016 had shot up PM levels by three times, making Delhi the

worst city in the world insofar as air pollution is concerned.  Direct

and  immediate  cause  thereof  was  burning  of  crackers  during

Diwali.  The Court also remarked that every year before  Diwali

there  are  attempts  on the part  of  the Government  (Ministry  of

Environment, Government of India as well as Delhi Government),

Media, NGOs and various other groups to create awareness in

the  general  public  about  the  ill-effects  of  bursting  of  these

crackers.  Campaigns are held in the schools wherein children

are  discouraged  to  have  fireworks.   Thus,  there  is  virtually  a

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 15 of 54

consensus in the society that crackers should not be burnt during

Diwali,  which  can be  celebrated with  equal  fervour  by  various

other means as well.  Irony is that when causes are brought in the

Court,  there  is  a  resistance  from certain  quarters.   Moreover,

there are adequate statutory provisions, aid whereof can be taken

to ban the sale of these crackers.

14) The  Court  also  took  into  consideration  three  substantial

submissions which were made by the petitioners, viz.: (a) CPCB

had  taken  a  stand,  nearly  twenty  years  ago,  that  Sulphur  in

fireworks  should  not  be  permitted  as  Sulphur  on  combustion

produces Sulphur Dioxide and the same is extremely harmful to

health.  The CPCB has stated that between 9:00 p.m. to midnight

on Diwali day the levels of Sulphur Dioxide content in the air are

dangerously high.  Moreover, all the above authorities were also

unanimous in  their  view that  crackers  should  only  be burst  in

designated places.  Also the CPCB had specifically stated that

joined crackers should be banned.  Secondly, in the order dated

November 11, 2016, licenses were suspended primarily for the

reason that  rising in the PM levels at  alarming proportion was

because of burning of crackers during Diwali, which had adverse

harmful affect and, therefore, there was no reason to relax this

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 16 of 54

condition.  Another significant argument which was taken note of

was  that  the  order  dated  November  11,  2016  was  passed

immediately after the Diwali in the year 2016 and the effect of that

order had not been tested.  Going by these considerations, the

Court decided to suspend the order dated September 12, 2017 at

least during the Diwali of 2017 with the following directions:

“14...To put it clearly, though we are not tweaking with the various  directions  contained  in  the  Orders  dated September 12, 2017, the effect of that Order would not be given during this Diwali  and, therefore,  we are making it effective only from November 01, 2017.  We are conscious of the fact that after the said order was passed, the police may have issued temporary licences.  Accordingly, those are suspended forthwith so that there is no further sale of the crackers in Delhi and NCR. Further orders in this behalf can  be  passed  on  assessing  the  situation  that  would emerge after this Diwali season...”

15) As expected, spate of applications have been filed, most of which

emanate from the aforesaid orders dated October 09, 2017. Many

parties  have  intervened.   Most  of  the  interventionists  are

supporting  the  petitioners  and  want  permanent  ban  on  the

burning of crackers during Diwali.  Some have even prayed that

this  ban be extended to the whole country and should not  be

limited to only Delhi and NCR.  IAs were also filed seeking ban on

crop burning.  The opposite group consists of manufacturers of

crackers,  manufacturers’ association and license holders.   The

State of Tamil Nadu has come forward to support this category.

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 17 of 54

Additionally, one interventionist, namely Indic Collective (applicant

in IA No. 105355 of 2017), is also opposing the ban contending

that burning of crackers during Diwali is a religious activity which

is in vogue for time immemorial and, therefore, it should not be

banned.

16) It is not necessary to take note of the arguments of each of the

counsel appearing on either side.  For the sake of convenience,

arguments of the petitioners as well as those who have supported

the petitioners’ cause and the arguments of the other group which

is opposing the prayers made by the petitioners, are collated and

we  state  below  these  arguments  and  counter  arguments  in

consolidated manner:

17) Petitioners’ Arguments:

(a) As  far  as  the  petitioners  are  concerned,  they  have

proceeded on the premise that undeniable fact is that as a result

of  burning of  crackers  during  Diwali PM2.5 reach an alarmingly

high level which certainly is injurious to health.  It is argued that

the adverse affect  thereof on the health of citizens, particularly

children, is irreversible.  It causes asthma, coughing, bronchitis,

retarded  nervous  system  breakdown  and  even  cognitive

impairment.

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 18 of 54

(b) The official  respondents had failed to address the issues

and carry  out  desired  studies  in  spite  of  the  directions  of  this

Court.  Various committees set up are examining the question as

to  what  kind  of  metal  should  be  used  in  the  manufacture  of

crackers.  So far no study has been conducted on the ill-effect

caused by PM2.5.

(c) Studies by CPCB had categorically  found that  burning of

crackers during  Diwali  was contributing to air  as well  as noise

pollution in an alarming manner.  Copies of these studies showing

continuous ambient air quality during Diwali annexed with IA No.

109720 of 2017 is referred to.  Contents of the affidavit of CPCB

dated January 05, 2018 has also been relied upon.

The petitioners also rely upon the report filed by the Union

of India, through the Ministry of Environment, Forest and Climate

Change,  wherein  ill-effects  of  fireworks  are  accepted  and

measures suggested to tackle the same.

Opinions  of  prominent  doctors  mentioning  spike  in  the

respiratory  problems  among  children  and  patients  are  also

pointed out.

(d) Dealing with the argument of the manufacturers and traders

of  firecrackers  based  on  Article  19(1)(g)  of  the  Constitution  of

India,  namely,  fundamental  right  to  carry  on  business,  the

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 19 of 54

submission of the petitioners is that going by the ill-effects of the

firecrackers, no such right can be claimed as principle of res extra

commercium would apply.  In support, additional affidavit filed on

July 26, 2017 as well as in July 2018 are referred to wherein the

petitioners have sought to highlight the following aspects:

(i)  These manufacturers were employing child labour.  At

one point of time, almost one lakh children were employed

in this industry.  Though it was admitted that this position

does not exist any longer in view of strict measures taken

by the Government.

(ii)   The manufacturing of  firecrackers generates a lot  of

waste which adds to pollution as sufficient measures are

not undertaken to deal with this waste.

(iii)  Number of deaths as well as injuries to persons are

caused every  year  due  to  poor  storage  which  results  in

occasional  accidents.   Likewise,  the  burning  of  these

crackers also results in injuries.

(iv)  Firework also leads to lot of noise and air pollution as

well.  Judgments of this Court in Vellore Citizens' Welfare

Forum v.  Union of India and Others, (1996) 5 SCC 647;

and  A.P. Pollution Control Board  v.  Prof. M.V. Nayudu

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 20 of 54

(Retd.) and Others, (1999) 2 SCC 718, have been relied

upon.

In the alternative,  it  was argued that  even if  it  is

accepted  that  argument  of  Article  19(1)(g)  of  the

Constitution is available to the manufacturers and traders,

such  a  ban  on  burning  crackers  during  Diwali  would

amount to reasonable restriction having regard to the fact

that right to health was also a fundamental right guaranteed

under Article 21 of the Constitution.  It was also submitted

that  the cost  in the form of  medical  expenses which are

incurred for treatment of those who suffered as a result of

burning of crackers is equally high or even may be higher.

(e) One of the arguments of the opposite side was that there

were  no  sufficient  studies  as  to  what  extent  the  burning  of

crackers  is  contributing  towards  air  and  noise  pollution  and

whether it was such a serious problem which warrants ban.  To

this, reply of the petitioners was that in the field of environmental

laws, precautionary principle was also applicable which does not

need exact studies or material.

(f) Insofar as argument of burning of crackers during Diwali, as

a part of right of religious practice is concerned, the refutation of

the  petitioners  is  that  such  an  argument  has  already  been

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 21 of 54

rejected by this Court in Vellore Citizens' Welfare Forum case.

It was further submitted that burning of crackers during Diwali  is

not a core and essential  religious practice and even if  it  is  so,

Article 25 was subject to Article 21 of the Constitution.  Judgment

in Noise Pollution (V), in Re, (2005) 5 SCC 733, was relied upon

in this regard.

18) Arguments of the opposite side:

The respondents,  who are opposing the prayers made in

the  writ  petitions  and  the  IAs,  made  the  submissions  to  the

following effect:

(i) Burning  of  crackers  during  Diwali  does  not  have  any

significant adverse affect on the environment.  It is argued that

there is no study till date which has come to such a conclusion.

The Deepawali Monitoring Report, 2017 of CPCB is relied upon

for this purpose and on that basis it is contended that the factors

which contributed to the problem were not because of crackers

burning during Diwali.  Ambient air quality before and after Diwali

reflects that there was no spike immediately after Diwali.  It was

accepted  that  situation  of  air  pollution  in  Delhi  and  NCR  is

'generally' worrying.  However, there are multiple causes which

lead  to  polluting  air  and  such  a  position  existed  even  before

Diwali, which showed that other factors played dominant role.

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 22 of 54

(ii) Insofar as presence of PM2.5 in the air is concerned, studies

of CPCB are relied upon, on the basis of which attempt is made

to show that: (a) spike was not so much during Diwali  days; (b)

increase in PM2.5 in the air does not remain for long, i.e. it does

not linger for many days; and (c) it is manageable as well.

Reports of Indian Institute of Technology, Kanpur; National

Aeronautics and Space Administration (NASA), USA; a professor

from Harvard University; and an affidavit dated January 05, 2018

filed by CPCB were referred to in support.

(iii) It is submitted that pursuant to orders dated September 12,

2017 whereby the Court had directed that a research study needs

to  be  conducted  on  the  impact  of  bursting  fireworks  during

Dussehra and Diwali on the health of people, no such empirical

data has emerged so far for want of detailed studies.

In nutshell,  the argument was that in the absence of any

definite  study  attributing  the  worsening  of  air  quality  to  the

fireworks during Diwali, the right of the manufacturers and traders

under Article 19(1)(g), which is a fundamental right to carry on

trade,  should  not  be  made  to  suffer  till  the  time  there  is  a

complete study in this behalf.

(iv) It  is  also  argued  that  the  revenue  generated  from  the

manufacturing and sale of fireworks is to the tune of Rs.6,000

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 23 of 54

crores per annum.  Further, this industry has given employment

to five lakh families.   Such a revenue to the State as well  as

employment  to  large  number  of  workers  on  which  five  lakh

families sustain cannot be put  in  jeopardy by imposing a total

ban.   It  was emphasised that  there is  a necessity  to  adopt  a

balanced approach.  For this purpose, Status Report and affidavit

of the Ministry of Environment, Forest and Climate Change has

been  relied  upon  which  suggested  eco-friendly  firecrackers.

Advisory  dated  March  07,  2008  issued  by  the  Petroleum and

Explosives Safety Organisation (PESO), which comes under the

Department  of  Industrial  Policy  and  Promotion,  Ministry  of

Commerce and Industry,  Government  of  India,  was also relied

upon,  as  per  which the  fireworks  manufacturers  in  India  were

advised to ensure that the firecrackers manufactured by them are

within  the  limits  prescribed  in  Annexure-I  to  the  said  Advisory

dated March 07, 2008.

(v) The State of Tamil Nadu also supported the cause of the

manufacturers and traders of the firecrackers.  It was argued that

the study undertaken by CPCB pursuant to the directions issued

by this  Court  was conducted by the Committee which did  not

have  a  representative  from  the  Fireworks  Research  and

Development Centre (FRDC) which was not even informed about

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 24 of 54

the development of this case.  It was emphasised that any proper

study in this behalf should address following aspects:

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

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

c) Banning  of  an  activity  is  an  extreme  measure. The  study  should  focus  on  the  alternatives available  in  the  present  day  technology   which may  be  deployed  to  ensure  that  pollution  free firecrackers can be manufactured.

(vi) Indic  Collective  (applicant  in  IA  No.  105355  of  2017)

opposed the prayer of banning of fireworks during Diwali  on the

ground that it was a religious practice scrupulously followed by

the Hindus from time immemorial and it had become a core and

essential religious practice which was protected under Article 25

of the Constitution as their fundamental right.

19) The arguments of the parties recorded above would show that the

submissions for and against almost remain the same, which were

advanced on earlier occasions, though the focus of both the sides

was  more  nuanced.   In  the  process,  the  events  and

developments  which  have  taken  place  after  passing  the  order

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 25 of 54

dated October 09, 2017 have also been relied upon by both the

parties.

20) Before  proceeding  to  deal  with  these  submissions,  it  may  be

apposite to take note of the study that has been undertaken by

CPCB on the basis  of  the directions of  this  Court  in  its  order

dated September 12, 2017.

21) Following the directions of this Court, a Committee was appointed

to be chaired by the Chairperson of the CPCB.  This Committee

invited Dr. M.K. Daga, Professor Director, Maulana Azad Medical

College (MAMC), as health expert to study the methodology.  Dr.

Daga suggested that considering the time available, a short-term

study based on questionnaire survey, hospital data collection and

sampling at a few locations can be conducted.  This methodology

proposed by Dr.  Daga was agreed to by the Committee.   The

Committee requested MAMC to submit  a proposal accordingly.

On submission of project proposal, the Committee awarded the

project  on  'Health  Impact  Assessment  on  Firecracker  Burning

During  Dussehra  And  Diwali' to  MAMC.   The  scope  included

questionnaire survey for  respiratory,  skin,  air,  eye and relevant

symptoms  during  pre  and  post  Diwali,  clinical  study  on  lung

function and urine samples of randomly selected subjects, and

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 26 of 54

data analysis.  After  conducting this survey,  a draft  report  was

prepared  and ultimately  it  was finalised  after  incorporating  the

comments from the Members of the Committee.  As per this study

on the afore-mentioned subject, following are the major findings:

"The respiratory system related symptoms and sings were not  much  different  during  pre  and  post  Dussehra  and Diwali.  Although there was some increase in cough and breathlessness,  but  this  did  not  translate  into  any significant  illness  requiring  immediate  medical  attention. Other  system  related  complaints  were  also  not  much different during pre and post Dussehra and Diwali.

There  was  evidence  of  increased  values  of  barium and strontium in urine samples of many subjects.  These are some  of  the  metals  used  in  firecracker  manufacturing. Increased  levels  in  urine  do  reflect  a  probability  of exposure.  However, all other elements are not increased to substantiate the effect of bursting of firecrackers.  It is also  possible  that  the  individuals  were  exposed  due  to bursting of firecrackers directly or indirectly in their locality.

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

22) Affidavit  filed  by  CPCB  also  states  that  in  compliance  of  the

orders  dated  October  09,  2017  of  this  Court  the  Air  Quality

Monitoring  Committee  during  Dussehra  and  Diwali  was

conducted  by  CPCB,  a  report  whereof  is  annexed  with  its

affidavit.  As per that report, the salient features are as under:

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 27 of 54

“a) That,  slight  increase  in  PM10 concentration  was observed in two locations i.e. Pitampura and Siri Fort on Dussehra day.

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

c) That  the concentrations of  SO2  and NO2 during pre Dussehra,  Dussehra  and  post  Dussehra  days remained within limits.

d) That,  though  the  actual  PM2.5  mass  concentrations were  declined  on  Dussehra  day,  certain  specific elemental  concentration  like  Aluminum,  Potassium and  Barium  showed  increment  on  Dussehra  day, which indicate some firecracker bursting has affected air quality.

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

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

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

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

i) PM2.5 was reduced by 39% compared to 2016 Diwali day.

j) Sulphur got reduced by 20%, Potassium by 30%, Ca, Cu, Zn, Sb by about 35-40%, Fe&Ba by about 50%, Strontium by 64% and Al and Cl2 by 11%."

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 28 of 54

23) It  can  be  discerned  from  the  above  that  the  air  quality  had

worsened  during  Diwali.   There  were  more  patients  with

symptoms  of  eye,  increased  coughing  and  patients  with  high

metal levels in urine.  Even noise level had increased.  These are

the  adverse  impacts  of  firecracker  bursting,  though  the  study

mentions that statistically it was not a significant increase.

24) The study has also found that actual PM2.5 mass concentrations

increased  due  to  firecracker  bursting,  which  had  affected  air

quality.   On  Diwali day  both  PM10 and  PM2.5 had  2-3.5  fold

increase.   Also,  PM10 and PM2.5 were reported higher  in  post-

Diwali day  compared  to  pre-Diwali  at  all  stations.   Another

significant finding is that PM2.5 was reduced by 39% compared to

2016  Diwali,  presumably  due  to  the  ban  order  on  the  sale  of

crackers which was passed on October 09, 2017, which led to

lesser quantum of fireworks.

25) Two significant features emerge from the above.  First,  due to

fireworks on Diwali day, PM2.5 levels go up.  Secondly, when there

was lesser fireworks in 2017, it had reduced the PM2.5 levels as

compared to the earlier Diwali in the absence of ban.

26) It is an accepted fact that bursting of firecrackers during Diwali is

not the only reason for deterioration of air quality.  There are other

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 29 of 54

factors  as  well.   It  calls  for  necessity  to  tackle  the  other

contributory factors for air pollution and making the air quality as

'very  poor'  and  even  'poor'.   Unregulated  construction  activity

which generates lot of dust and crop burning in the neighbouring

States are the two other major reasons, apart from certain other

reasons, including vehicular pollution etc.  The moot question in

such a scenario is as to whether the menace due to fireworks

during  Diwali or  other  festivals/occasions  should  be  left

untouched and the Court should allow the situation to prevail as it

is, only because it is not the sole reason for causing air pollution?

Answer has to be in the negative.

27) Once it  is  accepted that  PM2.5 level  goes alarmingly higher on

Diwali and  post-Diwali, which  is  the  result  of  bursting  of

firecrackers, it is necessary to understand the adverse affect on

health of persons of this particulate in air, even if such a situation

remains only for few days.  In this behalf, we may refer to the

opinions of  some experts/prominent  doctors in  the field,  which

have been placed on record by the petitioners.

28) Dr. Arvind Kumar, who interfered in the matter, filed his affidavit

on August 14, 2018, wherein he has inter alia stated as under:

"7.   I  have  consistently  found  that  in  the  immediate aftermath of Diwali, there is an increase in the number of

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 30 of 54

people  coming  with  chest  ailments  and  many  of  my operated patients returned with complaints of  cough and breathlessness without any other cause for the same.  This has forced me to carry out innumerable chest x-rays and CT scans to  confirm that  the complaints  are  due to  the exposure to toxins.  For the sake of relief to the patient and in  order  to  relieve  them  from  bronchospasms,  my colleagues and I are compelled to prescribe inhalers which have brochodilators and inhaled steroids, apart from cough suppressants and antibiotics.  Media reports suggest that there has been an increase in asthma medicine sales by 43% due to  pollution  (Hindustan  Times,  May  02,  2017). While  earlier,  it  was  believed  that  children  with  asthma would outgrow the affliction, in the present circumstances, this seems challenging.

8.  Both at AIIMS and at Sir Ganga Ram Hospital, there has been a significant increase in the number of patients I would see in my OPD in the days immediately following Diwali,  and I  have no doubt that this was on account of sudden  exposure  to  the  deadly  cocktail  consisting  of extremely high levels of toxic gases, particulate matter and metallic compounds.  Each exposure to firework emissions not only leads to acute disastrous effects but also causes cumulative long-term irreversible damage.  Once the PM2.5 particle gets deposited in the lungs, it never leaves, thereby affecting  the  linking  for  life  and  diminishing  breathing capacity.  This affects not only the respiratory system, but also  the  cardio-vascular  system  (heart  attacks  and hypertension), nervous system (strokes and developmental abnormalities in children), reproductive system and virtually every  other  health  function  including  the  bladder  and kidneys.

9.  It would be useful to refer to two studies conducted ten years  apart  by  a  team  including  Prof.  Sundeep  Salvi, Director Chest Research Foundation, Pune and Member of the  Government  of  India's  Steering  Committee  on  Air Pollution & Health.  The first one in 2007 was presented at the Annual Congress of the European Respiratory Society at Stockholm and reveals the harmful health effects of CO, SOx and NOx from fireworks.

10.   The  second  is  a  detailed  study  on  the  amount  of Particulate Matter in various types of fireworks in India and this  was  presented  at  the  meeting  of  the  European

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 31 of 54

Respiratory Society at Milan in 2017.  This has since been published  in  the  European  Respiratory  Journal,  and examines  the  personal  exposure  levels  of  fireworks  (as against a general study of ambient air).  In these isolated and controlled circumstances, the exposure to PM2.5 was found to be as high as 64,5000 u/m3."

29) From the aforesaid it can be gathered that when PM2.5 crosses

the normal  limits,  even if  it  remains in  the air  for  few days,  it

becomes severe health  hazard thereby causing serious health

problems.  Unfortunately such problems are virtually irreversible,

which means that a person whose health gets affected because

of this particulate has a long suffering.  In view thereof, argument

in  opposition  that  air  quality  that  gets  worsened during  Diwali

remains only for few days would be of no consequence as even

in few days it causes severe harm to the health of the people, that

too for prolonged duration.

30) From the aforesaid discussion, the position can be summed up by

stating that though burning of crackers during  Diwali  is not the

only  reason  for  worsening  air  quality,  at  the  same  time,  it

definitely contributes to air pollution in a significant way.  Again,

even  when  no  studies  are  undertaken  on  long-term  impact

thereof, the CPCB Committee, which did this exercise taking it as

a short-term project which was assigned to MAMC, has returned

a definite finding about deterioration in air  quality during  Diwali

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 32 of 54

because of  burning of  crackers.   It  has also shown that  post-

Diwali air pollution in 2017 was less compared to the 2016 Diwali

which  was  the  result  of  lesser  fireworks  in  2017.   This  again

indicates a  direct  causal  connection between burning crackers

during  Diwali  and  air  pollution.   Another  immediate  effect  of

burning  of  crackers  is  that  it  results  in  substantial  increase  in

PM2.5 level which is a very serious health hazard.  In fact, this

results  in  severe  noise  pollution  as  well  which  has  acute

psychological, mental and even physical affect on animals.  In the

application seeking intervention and directions (IA No. 68897 of

2018) filed by Gauri Maulekhi, the applicant has placed on record

plethora of literature based on various studies depicting profound

affect of noise/sound on the health of animals, extending to their

neuroendocrine  system,  reproduction  and  development,

metabolism, cardiovascular health, cognition and sleep, audition,

immune system, DNA integrity and gene expression.  Fireworks

sometimes results in temporary or permanent hearing impairment

in animals.  Further, dogs are also known to display psychological

symptoms of stress during this time.  So much so, fireworks has

traumatising affect  even on birds.   Deafening sound which the

crackers produce on bursting are known to disorient  birds and

responsible  for  their  displacement  from their  nests.   Even the

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 33 of 54

respiratory system of the birds gets affected.  Studies also show

that the sound of crackers has affect on milch cattle.  As the cattle

is  scared,  adrenaline  is  released  in  its  body  which  inhibits

oxytocin, a hormone which helps the milk cattle to release milk

thereby affecting the production of milk.

31) The aforesaid findings are sufficient to negate the arguments of

the opposite side that there is absence of scientific study about

the adverse affect of firecrackers during Diwali.  In environmental

law,  'precautionary  principle'  is  one  of  the  well  recognised

principles which is followed to save the environment.  It is rightly

argued by the petitioners that this principle does not need exact

studies/material.   The  very  word  'precautionary'  indicates  that

such  a  measure  is  taken  by  way of  precaution  which  can  be

resorted to even in the absence of definite studies.  In  Vellore

Citizens' Welfare Forum, this Court explained the principle in the

following manner:

"11.   Some  of  the  salient  principles  of  “Sustainable Development”,  as culled out from Brundtland Report and other  international  documents,  are  Inter-Generational Equity,  Use  and  Conservation  of  Natural  Resources, Environmental  Protection,  the  Precautionary  Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication  of  Poverty  and  Financial  Assistance  to  the developing countries.  We are,  however,  of  the view that “The  Precautionary  Principle”  and  “The  Polluter  Pays Principle”  are  essential  features  of  “Sustainable

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 34 of 54

Development”.  The  “Precautionary  Principle”  —  in  the context of the municipal law — means:

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

(ii)  Where  there  are  threats  of  serious  and  irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(iii)  The  “onus  of  proof”  is  on  the  actor  or  the developer/industrialist  to  show  that  his  action  is environmentally benign.

xx xx xx

14.   In  view  of  the  above-mentioned  constitutional  and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country.

15.  Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost  an  accepted  proposition  of  law  that  the  rules  of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.  To  support  we  may  refer  to  Justice  H.R.  Khanna's opinion  in  A.D.M.  v.  Shivakant  Shukla,  Jolly  George Varghese case  and Gramophone Co. case.

16.   The constitutional and statutory provisions protect  a person's  right  to fresh air,  clean water  and pollution-free environment, but the source of the right is the inalienable common law right of clean environment..."

32) The precautionary principle accepted in the aforesaid judgment

was further elaborated in  A.P. Pollution Control Board's  case

as under:

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 35 of 54

"31.  The “uncertainty” of scientific proof and its changing frontiers  from time  to  time  has  led  to  great  changes  in environmental  concepts  during  the  period  between  the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum v. Union of India a three-Judge Bench of this Court referred to these changes, to  the  “precautionary  principle”  and  the  new  concept  of “burden of proof” in environmental matters. Kuldip Singh, J. after  referring  to  the  principles  evolved  in  various international  conferences  and  to  the  concept  of “sustainable  development”,  stated  that  the  precautionary principle,  the  polluter-pays  principle  and  the  special concept of onus of proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and  51-A(g)  of  our  Constitution  and  that,  in  fact,  in  the various  environmental  statutes,  such  as  the  Water  Act, 1974  and  other  statutes,  including  the  Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore case  in this behalf read as follows: (SCC p. 660, para 14)

“14.  In  view of  the  above-mentioned constitutional and  statutory  provisions  we  have  no  hesitation  in holding  that  the  precautionary  principle  and  the polluter-pays principle are part of the environmental law of the country.”

(emphasis supplied)

The  Court  observed that  even otherwise,  the  abovesaid principles  are  accepted  as  part  of  the  customary international law and hence there should be no difficulty in accepting them as part of our domestic law. In fact, on the facts of the case before this Court, it was directed that the authority  to  be  appointed  under  Section  3(3)  of  the Environment (Protection) Act, 1986

“shall  implement  the  ‘precautionary  principle’  and  the ‘polluter-pays principle’”.

The learned Judges also observed that the new concept which  places  the  burden  of  proof  on  the  developer  or industrialist who is proposing to alter the status quo, has also become part of our environmental law.

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 36 of 54

32. The  Vellore judgment  has referred to these principles briefly  but,  in  our  view,  it  is  necessary  to  explain  their meaning  in  more  detail,  so  that  courts  and  tribunals  or environmental  authorities  can  properly  apply  the  said principles in the matters which come before them.

33.  A  basic  shift  in  the  approach  to  environmental protection  occurred  initially  between  1972  and  1982. Earlier,  the  concept  was  based  on  the  “assimilative capacity”  rule  as  revealed  from  Principle  6  of  the Stockholm Declaration of the U.N. Conference on Human Environment,  1972.  The  said  principle  assumed  that science could provide policy-makers with the information and  means  necessary  to  avoid  encroaching  upon  the capacity  of  the environment  to  assimilate  impacts  and it presumed  that  relevant  technical  expertise  would  be available  when  environmental  harm  was  predicted  and there would be sufficient time to act in order to avoid such harm.  But  in  the  11th  Principle  of  the  U.N.  General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the “precautionary principle”, and this  was reiterated in the Rio Conference of  1992 in  its Principle 15 which reads as follows:

“Principle 15.—In order to protect the environment, the  precautionary approach  shall be widely applied by  States  according  to  their  capabilities.  Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason  for  proposing  cost-effective  measures  to prevent environmental degradation.”

34.   In  regard  to  the  cause  for  the  emergence  of  this principle, Charmian Barton, in the article earlier referred to in Vol.  22,  Harv.  Envtt.  L.  Rev.  (1998),  p.  509 at  p.  547 says:

“There is nothing to prevent decision-makers from assessing the record and concluding that there is inadequate  information  on  which  to  reach  a determination.  If  it  is  not  possible  to  make  a decision  with  ‘some’  confidence,  then  it  makes sense to  err  on  the side of  caution and prevent activities  that  may  cause  serious  or  irreversible harm. An informed decision can be made at a later stage  when  additional  data  is  available  or resources permit  further research. To ensure that

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 37 of 54

greater  caution  is  taken  in  environmental management,  implementation  of  the  principle through  judicial  and  legislative  means  is necessary.”

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

35.  The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose  the  least  environmentally  harmful  activity.  It  is based  on  scientific  uncertainty.  Environmental  protection should  not  only  aim  at  protecting  health,  property  and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended  by  the  UNEP Governing  Council  (1989). The  Bomako  Convention  also  lowered  the  threshold  at which  scientific  evidence  might  require  action  by  not referring  to  “serious”  or  “irreversible”  as  adjectives qualifying harm. However, summing up the legal status of the  precautionary  principle,  one  commentator characterised the principle as still “evolving” for though it is accepted as part of the international  customary law, “the consequences of  its application in any potential  situation will  be  influenced  by  the  circumstances  of  each  case”. (See  First  Report  of  Dr  Sreenivasa  Rao  Pemmaraju  — Special  Rapporteur,  International  Law Commission dated 3-4-1998, paras 61 to 72.)."

33) In  such  cases  which  pertain  to  the  protection  of  environment,

thrusting  of  'onus  of  proof'  on  the  developer/industrialist  in

Vellore  Citizens'  Welfare  Forum was  also  elaborated  by  the

Court in the following manner:

"36.  We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p. 658. In that case, Kuldip Singh, J. stated as follows: (SCC p. 658, para 11)

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 38 of 54

“(iii)  The  ‘onus  of  proof’  is  on  the  actor  or  the developer/industrialist  to  show  that  his  action  is environmentally benign.”

37.   It  is  to  be  noticed  that  while  the  inadequacies  of science have led to the “precautionary principle”, the said “precautionary principle” in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, — is placed on those who want to change the status  quo  [Wynne, Uncertainty  and  Environmental Learning,  2 Global  Envtl.  Change 111 (1992) at  p.  123]. This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden,  a  procedure  which  is  not  fair.  Therefore,  it  is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of  proof  and the party  who wants to alter  it, must bear this burden. [See James M. Olson: “Shifting the Burden of Proof”, 20 Envtl. Law, p. 891 at p. 898 (1990).] [Quoted in Vol. 22 (1998), Harv. Env. Law Review, p. 509 at pp. 519, 550.]

38.  The precautionary principle suggests that where there is  an  identifiable  risk  of  serious  or  irreversible  harm, including,  for  example,  extinction of  species,  widespread toxic  pollution  in  major  threats  to  essential  ecological processes,  it  may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See  Report of Dr Sreenivasa  Rao  Pemmaraju,  Special  Rapporteur, International Law Commission, dated 3-4-1998, para 61.)"

34) This brings us to the next argument which is predicated on Article

19(1)(g)  of  the  Constitution.   Mr.  Shankarnarayanan  had

submitted  that  principle  of  res  extra  commercium  shall  apply

inasmuch as firecrackers are a health hazard, the manufacturers

and traders thereof cannot claim any fundamental right to carry

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 39 of 54

on  business  in  this  field.   Such  a  plea  may  not  be  tenable.

Therefore,  it  calls  for  a  measure  that  would  amount  to  a

reasonable restriction.

35) It may be stressed that in Vellore Citizens' Welfare Forum case,

this Court had banned the tanneries when it was found that they

were  causing  immense  damage  to  the  environment.   Thus,

environment protection, which is a facet of Article 21, was given

supremacy over the right to carry on business enshrined in Article

19(1)(g).  We state at the cost of repetition that right of health,

which is recognised as a facet of Article 21 of the Constitution

and,  therefore,  is  a  fundamental  right,  assumes  greater

importance.  It is not only the petitioners and other applicants who

have  intervened  in  support  of  the  petitioners  but  the  issue

involves millions of persons living in Delhi and NCR, whose right

to health is at stake.  However, for the time being, without going

into this debate in greater details, our endeavour is to strive at

balancing  of  two  rights,  namely,  right  of  the  petitioners  under

Article 21 and right of the manufacturers and traders under Article

19(1)(g) of the Constitution.

36) Almost for the same reasons, argument predicated on Article 25

of  the  Constitution  need  not  detain  us.   We  proceed  on  the

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 40 of 54

assumption  that  burning  of  crackers  during  Diwali  is  a  part  of

religious practice.   The question is  as to whether  it  should be

allowed  to  be  continued  in  the  present  form  without  any

regulatory measures, as a part of religious practice, even if it is

proving to be a serious health hazard.  We feel that Article 25 is

subject  to  Article  21  and  if  a  particular  religious  practice  is

threatening the health and lives of people, such practice is not to

entitled to protection under Article 25.  In any case, balancing can

be done here as well by allowing the practice subject to those

conditions which ensure nil or negligible effect on health.

37) We  now  deal  with  the  argument  that  banning  the  sale  of

firecrackers may lead to extreme economic hardship, namely, on

the one hand loss of substantial revenue and on the other hand

unemployment to lakhs of persons.  This brings up the issue of

connect or  relationship between the law and economics.   This

aspect  was  considered  by  this  Court  in  Shivashakti  Sugars

Limited v.  Shree Renuka Sugar Limited and Others, (2017) 7

SCC 729, and the relevant portion whereof is reproduced below:

"43...Interface between Law and Economics is much more relevant in today's time when the country has ushered into the era of economic liberalisation, which is also termed as “globalisation”  of  economy.  India  is  on  the  road  of economic growth. It  has been a developing economy for number of decades and all efforts are made, at all levels, to ensure that it becomes a fully developed economy. Various

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 41 of 54

measures are taken in this  behalf  by  the policy-makers. The judicial wing, while undertaking the task of performing its judicial function, is also required to perform its role in this  direction.  It  calls  for  an  economic  analysis  of  law approach,  most  commonly  referred  to  as  “Law  and Economics”  [  Richard A. Posner in his  book Frontiers of Legal  Theory explains  this  concept  as  follows:“Economic analysis  of  law  has  heuristic,  descriptive  and  normative aspects.  As  a  heuristic,  it  seeks  to  display  underlying unities in legal doctrines and institutions; in its descriptive mode, it seeks to identify the economic logic and effects of doctrines and institutions and the economic causes of legal change; in its normative aspect it advises Judges and other policy-makers on the most efficient methods of regulating conduct through law. The range of its subject-matter has become  wide,  indeed  all-encompassing.  Exploiting advances  in  the  economics  of  nonmarket  behaviour, economic  analysis  of  law  has  expanded  far  beyond  its original focus on antitrust, taxation, public utility regulation, corporate finance, and other areas of explicitly economic regulation.  (And  within  that  domain,  it  has  expanded  to include  such  fields  as  property  and  contract  law.)  The “new” economic analysis of law embraces such nonmarket, or  quasi-nonmarket,  fields  of  law as tort  law,  family  law, criminal  law,  free  speech,  procedure,  legislation,  public international law, the law of intellectual property, the rules governing  the  trial  and appellate  process,  environmental law, the administrative process, the regulation of health and safety,  the laws forbidding discrimination in  employment, and social norms viewed as a source of, an obstacle to, and a substitute for formal law.”Posner also mentioned that this interface between Law and Economics might grandly be called “Economic Theory of  Law”, which is built  on a pioneering  article  by  Ronald  Coase  [R.H.  Coase,  “The Problem of Social Cost”, 3 Journal of Law and Economics 1 (1960)]:“The “Coase Theorem” holds that where market transaction costs are zero, the law's initial assignment of rights is irrelevant to efficiency, since if the assignment is inefficient  the  parties  will  rectify  it  by  a  corrective transaction. There are two important corollaries. The first is that the law, to the extent interested in promoting economic efficiency,  should  try  to  minimize  transaction  costs,  for example by defining property rights clearly, by making them readily transferable,  and by creating cheap and effective remedies for breach of contract.…The second corollary of the Coase Theorem is that where, despite the law's best efforts,  market  transaction  costs  remain  high,  the  law

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 42 of 54

should  simulate  the  market's  allocation  of  resources  by assigning property rights to the highest-valued users.  An example  is  the  fair-use  doctrine  of  copyright  law,  which allows  writers  to  publish  short  quotations  from  a copyrighted  work  without  negotiating  with  the  copyright holder.  The costs  of  such negotiations would usually  be prohibitive;  if  they  were  not  prohibitive,  the  usual  result would be an agreement to permit the quotation, and so the doctrine of fair use brings about the result that the market would bring about if market transactions were feasible.”] . In fact, in certain branches of Law there is a direct impact of  Economics  and  economic  considerations  play predominant  role,  which  are  even  recognised  as  legal principles.  Monopoly  laws (popularly  known as  “Antitrust Laws” in USA) have been transformed by Economics. The issues  arising  in  competition  laws  (which  has  replaced monopoly  laws)  are  decided  primarily  on  economic analysis  of  various  provisions  of  the  Competition Commission  Act.  Similar  approach  is  to  be  necessarily adopted while interpreting bankruptcy laws or even matters relating  to  corporate  finance,  etc.  The  impress  of Economics is strong while examining various facets of the issues arising under the aforesaid laws. In fact, economic evidence  plays  a  big  role  even  while  deciding environmental  issues.  There  is  a  growing  role  of Economics  in  contract,  labour,  tax,  corporate  and  other laws.  Courts  are  increasingly  receptive  to  economic arguments  while  deciding  these  issues.  In  such  an environment it becomes the bounden duty of the Court to have the economic  analysis  and economic  impact  of  its decisions."

38) Applying the aforesaid principle, in the first blush it may appear

that the aforesaid argument has substantial force in it.  However,

that would be only one side of the picture as there are two contra

arguments  which  are  sufficient  to  take  the  sheen  out  of  the

aforesaid plea.   First  aspect is that  the argument of  economic

hardship is pitched against  right  to health and life.   When the

Court is called upon to protect the right to life, economic effect of

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 43 of 54

a particular measure for the protection of such right to health will

have to give way to this fundamental right.  Second factor, which

is  equally  important,  is  that  the  economic loss  to  the  State  is

pitched against the economic loss in the form of cost of treatment

for treating the ailments with which people suffer as a result of

burning of these crackers.  Health hazards in the form of various

diseases that  are the direct  result  of  burning of  crackers have

already  been  noted  above.   It  leads  to  asthma,  coughing,

bronchitis,  retarded  nervous  system  breakdown  and  even

cognitive  impairment.   Some  of  the  diseases  continue  on  a

prolonged basis.  Some of these which are caused because of

high level of PM2.5 are even irreversible.  In such cases, patients

may  have  to  continue  to  get  the  medical  treatment  for  much

longer period and even for life.  Though there are no statistics as

to what would be the cost for treating such diseases which are as

a direct consequence of fireworks on these occasions like Diwali,

it can safely be said that this may also be substantial.  It may be

more  than  the  revenue  which  is  generated  from  the

manufacturers of  the crackers.   However,  we say no more for

want of precise statistical data in this behalf.

39) With this, we come to the most important issue, viz. whether there

has to be a complete ban on display of fireworks during Diwali or

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 44 of 54

it can be controlled/regulated in a manner which may not result

into air pollution or may be least intrusive.

40) It  would be significant to mention at this stage that there have

been lots  of  efforts  for  production of  firecrackers which do not

contain harmful chemicals and thereby not causing air pollution,

which are even termed as 'Green Crackers'.  The Union of India

was asked to delve on this aspect.  In fact, during the hearing of

this matter, order was passed on August 14, 2018 giving direction

to respondent No.1 to give its complete suggestions to deal with

the problems and issues involved which have been recapitulated

above.  This order reads as under:

"Further  arguments  heard  in  these  matters.   Arguments have not been concluded.

We  are  of  the  opinion  that  Union  of  India/Ministry  of Environment should come out with its concrete suggestions to  deal  with  problems  and  issues  which  are  involved in these  petitions  and  what  short  term  measures  can  be adopted to tackle the pollution problem which occurs due to firecrackers during Diwali.  Such affidavit shall be filed by or before next date of hearing.

List on 21.8.2018."

41) Pursuant to the aforesaid direction, respondent No.1 has filed its

affidavit on August 21, 2018.  This affidavit sates that the Ministry

consulted  :  (i)  The  Council  of  Scientific  &  Industrial  Research

(CSIR)  -  National  Environment  Engineering  Research  Institute

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 45 of 54

(NEERI), (ii) PESO, and (iii) CPCB regarding concrete solutions

and short-term measures to be adopted to tackle the pollution

problem  which  occurs  due  to  firecrackers  during  Diwali.

Suggestions are received from the aforesaid bodies which are

annexed as Annexures R-1, R-2 and R-3 respectively.  Based on

those suggestions, the Ministry has given the following short-term

measures/actions  which  it  proposes  to  tackle  the  pollution

problem  due  to  firecrackers  during  forthcoming  Diwali in

November 2018:

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

II. Use  of  Reduced  Emission  firecrackers  (Improved crackers) - (a) Avoidance of use of ash as desiccant or filler materials in crackers for reduction in particulate mater by 15-20%.  These can be implemented subject to  approval  by  PESO,  and  (b)  usage  of  charcoal meeting specifications of explosives and pyrotechnics as prescribed by PESO.

III. Use  of  Reduced  Emission  firecrackers  (Green crackers: Safe water and air sprinklers (SWAS) - Low emission sound and light emitting functional crackers with PM reduction by 30-35% and significant reduction in  NOx and SO2 due to  in-situ water  generation as dust suppressant and low cost due to usage of  low cost oxidants.  These can be implemented subject to approval by PESO.

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IV. PESO will ensure fireworks with permitted chemicals only  to  be  purchased/possessed/sold/used  during Diwali  and shall  test  and check for the presence of banned  chemicals  like  lithium/arsenic/antimony/lead/ mercury.   PESO  will  ensure  suspension  of  the licenses of manufacturers of such fireworks items and appropriate disposal of such stock.

V. PESO  will  ensure  that  only  those  crackers  whose decibel (sound) level are within the limits are allowed in  the  market  and  will  ensure  to  take  action  by suspending the licenses of the manufacturers on such violations and disposal of such lots.

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

VII. CPCB and respective State Pollution Control Boards/ Pollution  Control  Committees  (SPCBs/PCCs)  of  the States and Union Territories shall carry out short-term monitoring  in  their  cities  for  14  days  (commencing from 7 days prior to Diwali and ending 7 days after Diwali) for the parameters namely, Aluminum, Barium, Iron apart from the regulatory parameters against the short-term  Ambient  Air  Quality  Criteria  Values (AAQCVs) proposed by CPCB with regard to bursting of firecrackers.  This will help in generation of data on pollution caused by the bursting of  firecrackers  and would be helpful for regulation and control quantity of Aluminum, Barium and Iron used in the manufacture of firecrackers.

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 47 of 54

VIII. The manufacture, sale and use of joined firecrackers (series crackers or laris) may be banned as the same causes huge air, noise and solid waste problems.

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

X. Extensive public awareness campaigns shall be taken up  by  the  Central  Government/State  Governments/ Schools/Colleges  informing  the  public  about  the harmful effects of firecrackers."

42) We are of the opinion that the aforesaid suggestions strive a nice

balance between the two competing interests.   We accept  the

aforesaid measures as suggested by the Union of India and direct

the Union of India and other concerned authorities to implement

the  same  with  immediate  effect.   In  view  thereof,  following

specific directions are issued:

(i) The crackers with reduced emission (improved crackers)

and green crackers,  as mentioned in Suggestion Nos. II

and III above only would be permitted to be manufactured

and sold.

(ii) As a consequence, production and sale of crackers other

than  those  mentioned  in  Suggestion  Nos.  II  and  III  is

hereby banned.

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 48 of 54

(iii) The  manufacture,  sale  and  use  of  joined  firecrackers

(series crackers or  laris)  is hereby banned as the same

causes huge air, noise and solid waste problems.

(iv) The sale shall only be through licensed traders and it shall

be ensured that  these licensed traders are selling those

firecrackers which are permitted by this order.

(v) No e-commerce websites, including Flipkart, Amazon etc.,

shall accept any online orders and effect online sales.  Any

such e-commerce companies found selling crackers online

will be hauled up for contempt of court and the Court may

also pass, in that eventuality, orders of monetary penalties

as well.

(vi) Barium salts in the fireworks is also hereby banned.

(vii) PESO  is  directed  to  review  the  clinical  composition  of

fireworks,  particularly  reducing  Aluminum  content,  and

shall submit its report in respect thereof within a period of

two  weeks  from  today.   For  undertaking  this  exercise,

PESO would also associate FRDC.

(viii) Even those crackers which have already been produced

and  they  do  not  fulfill  the  conditions  mentioned  in

Suggestion Nos. II and III above will not be allowed to be

sold in Delhi and NCR.

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(ix) PESO will ensure fireworks with permitted chemicals only

to be purchased/possessed/sold/used during Diwali and all

other  religious  festivals,  of  any  religion  whatsoever,  and

other occasions like marriages, etc.  It shall test and check

for the presence of banned chemicals like Lithium/Arsenic/

Antimony/Lead/Mercury.

(x) PESO  will  ensure  suspension  of  the  licenses  of

manufacturers  of  such  fireworks  items  and  appropriate

disposal of such stock.

(xi) PESO will ensure that only those crackers whose decibel

(sound) level are within the limits are allowed in the market

and will ensure to take action by suspending the licenses

of  the manufacturers  on such violations and disposal  of

such lots.  To add to it, as mentioned in the order dated

September 12, 2017, the directions issued and restrictions

imposed in the order passed by this Court on July 18, 2005

in Noise Pollution (V) shall continue to be in force.

(xii) Direction Nos. 4 to 9 and 11 contained in the order dated

September  12,  2017  shall  continue  to  operate  and  are

reiterated again.

(xiii) Extensive public awareness campaigns shall be taken up

by  the  Central  Government/State  Governments/Schools/

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 50 of 54

Colleges informing the public about the harmful effects of

firecrackers.

(xiv) On Diwali days or on any other festivals like Gurpurab etc.,

when such fireworks generally take place, it would strictly

be from 8:00 p.m. till 10:00 p.m. only.  On Christmas even

and  New  Year  eve,  when  such  fireworks  start  around

midnight, i.e. 12:00 a.m., it  would be from 11:55 p.m. till

12:30 a.m. only.

(xv) The Union of India, Government of NCT of Delhi and the

State Governments of  the NCR would permit  community

firecracking  only  (for  Diwali  and  other  festivals  etc.  as

mentioned  above),  wherever  it  can  be  done.   For  this

purpose, particular area/fields would be pre-identified and

predesignated by the concerned authorities.  This exercise

shall be completed within a period of one week from today

so that the public at large is informed about the designated

places one week before Diwali.  The areas designated now

for  the  purpose  of  Diwali shall  be  valid  for  community

firecracking  on  other  occasions/festivals  as  well,  as

mentioned  above.   Even  for  marriages  and  other

occasions, sale of improved crackers and green crackers is

only permitted.

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 51 of 54

Insofar as other States are concerned, an endeavour

shall  be made by them also to  explore  the feasibility  of

community  firecracking.   However,  it  is  made  clear  that

Direction No. (xiv) pertaining to the duration within which

fireworks can take place on all such occasions would be

applicable throughout India.  Similarly,  Direction No. (xiii)

for  extensive public awareness campaigns is also a pan

India direction.

(xvi) All  the  official  respondents,  and  particularly  the  Police,

shall  ensure  that  fireworks  take  place  only  during  the

designated time and at designated places, as mentioned

above.   They shall  also ensure that  there is  no sale  of

banned firecrackers.   In case any violation is  found, the

Station  House  Officer  (SHO)  of  the  concerned  Police

Station of the area shall be held personally liable for such

violation and this would amount to committing contempt of

the  Court,  for  which  such  SHO(s)  would  be  proceeded

against.

(xvii) CPCB  and  respective  State  Pollution  Control  Boards/

Pollution Control Committees (SPCBs/PCCs) of the States

and Union Territories shall carry out short-term monitoring

in their cities for 14 days (commencing from 7 days prior to

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 52 of 54

Diwali and ending 7 days after Diwali) for the parameters

namely, Aluminum, Barium, Iron apart from the regulatory

parameters  against  the  short-term  Ambient  Air  Quality

Criteria Values (AAQCVs) proposed by CPCB with regard

to bursting of firecrackers.  This will help in generation of

data on pollution caused by the bursting of firecrackers and

would  be  helpful  for  regulation  and  control  quantity  of

Aluminum,  Barium and Iron  used  in  the  manufacture  of

firecrackers.

43) One clarification needs to be given at this stage.  Our discussion

pertaining to the arguments based on Article 19(1)(g), Article 25

as  well  as  the  argument  of  loss  of  substantial  revenue  and

unemployment,  in  cases  the  manufacture  and  sale  of  the

firecrackers  is  totally  banned,  is  prima facie and we have not

given  our  conclusive  determination.   It  is  because  of  want  of

detailed studies on various aspects which have been mentioned

and taken note of during discussion in this order.  However, we

also make it clear that, prima facie, we do not find much merit in

these arguments for which we have given our reasons in brief.

44) Having  regard  to  the  overall  circumstances,  we  have  decided

that,  for  the  time  being,  a  balanced  approach  to  tackle  this

IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 53 of 54

problem is needed, which may take care of the concerns of both

the  parties  and,  at  the  same  time,  provide  a  reasonable  and

adequate solution.  When the picture would become clearer after

the  requisite  studies/research  is  undertaken,  more  stringent

measures can be adopted in future if the situation so warrants.

45) All  the  interlocutory  applications  seeking  impleadment,

intervention, directions, modification, etc. are disposed of in the

aforesaid terms.

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

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; OCTOBER 23, 2018.

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