Supreme Court Regulates Firecracker Sales to Curb Pollution: Arjun Gopal vs. Union of India (23 October 2018)

Introduction

Date of the Judgment: 23 October 2018

Citation: Not Available in source

Judges: A.K. Sikri, J. and Ashok Bhushan, J.

Can the celebration of festivals, deeply rooted in tradition, be reconciled with the urgent need to protect the environment? The Supreme Court of India grappled with this question in a significant case concerning the use of firecrackers during Diwali. This judgment addresses the alarming levels of air pollution caused by firecrackers, particularly in Delhi and the National Capital Region (NCR), and seeks to balance the right to a healthy environment with the rights of manufacturers, traders, and religious practices. The bench consisted of Justices A.K. Sikri and Ashok Bhushan.

Case Background

The case originated from a writ petition filed on September 24, 2015, by three infants concerned about the severe air pollution in Delhi, particularly during Diwali due to the indiscriminate use of firecrackers. The petitioners highlighted the vulnerability of children to air pollutants, which can cause various health issues. They sought directions to check pollution, including a ban on firecrackers.

The petitioners pointed out that air pollution worsens during Diwali due to the harmful chemical composition of firecrackers, leading to a drastic increase in particulate matter (PM2.5 and PM10) levels. This situation, they argued, necessitated immediate measures to protect public health.

Timeline

Course of Proceedings

The petition was initially filed in the Supreme Court of India. The court, recognizing the urgency of the matter, issued notices and began hearing the case. The court also took up the matter along with other connected petitions related to air pollution in Delhi and NCR.

After the alarming deterioration of air quality during Diwali 2016, the court took up IA No.4 and passed orders on November 11, 2016, to suspend the licenses for the sale of fireworks in the NCR. This was aimed at curbing the supply of firecrackers, which was considered a more practical approach than banning individual use.

Subsequently, applications were filed by manufacturers and license holders seeking modification of the interim order. This led to the order dated September 12, 2017, which lifted the suspension of licenses with certain regulations. However, the court later suspended this order for Diwali 2017 due to concerns about air quality.

Legal Framework

The Supreme Court considered the following key legal provisions and constitutional articles:

• Article 48A of the Constitution of India: This article mandates that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. The Court recognized the State’s duty to ensure a healthy environment.
• Article 51A(g) of the Constitution of India: This article states that it is the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures. The Court highlighted the duty of citizens to ensure a healthy environment.
• Rule 118 of the Explosive Rules, 2008, framed under the Explosives Act, 1884, which 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) confers on the Central Government a power to suspend or cancel a license if it considers that it is in public interest.
• Article 19(1)(g) of the Constitution of India, which guarantees the fundamental right to carry on any occupation, trade, or business. The manufacturers and traders of firecrackers argued that a ban would infringe upon their right to trade.
• Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. The petitioners argued that the right to health and a clean environment is a facet of this right.
• Article 25 of the Constitution of India, which guarantees the freedom of conscience and free profession, practice, and propagation of religion. One of the intervenors argued that burning firecrackers is a religious practice and should not be banned.
• The Court also invoked 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.

Arguments

The arguments were presented by both the petitioners and the respondents, which included firecracker manufacturers, traders, and the State of Tamil Nadu.

Petitioners’ Arguments

• The petitioners argued that the burning of firecrackers during Diwali leads to alarmingly high levels of PM2.5, which is severely injurious to health, causing irreversible damage, particularly to children. They highlighted issues such as asthma, coughing, bronchitis, nervous system breakdown, and cognitive impairment.
• They contended that official respondents had failed to conduct necessary studies despite court directions.
• The petitioners relied on studies by the Central Pollution Control Board (CPCB), which showed that firecrackers contribute significantly to both air and noise pollution. They also presented reports from doctors about the spike in respiratory problems among children post-Diwali.
• They argued that the manufacturers’ claim of a fundamental right to carry on business under Article 19(1)(g) should not be entertained due to the harmful effects of firecrackers, invoking the principle of res extra commercium. They also argued that even if Article 19(1)(g) applied, a ban would be a reasonable restriction given the fundamental right to health under Article 21.
• The petitioners argued that the precautionary principle should apply, which does not require exact studies to justify measures to protect the environment.
• They refuted the argument that burning firecrackers is an essential religious practice, stating that even if it were, Article 25 is subject to Article 21.

Respondents’ Arguments

• The respondents argued that burning firecrackers does not have a significant adverse effect on the environment. They claimed that there were no conclusive studies proving that firecrackers were the primary cause of pollution. They cited the CPCB’s Deepawali Monitoring Report, 2017, to support their claim.
• They argued that the increase in PM2.5 levels was not significant and did not last long. They also referred to reports from IIT Kanpur, NASA, and Harvard University.
• They contended that no empirical data had emerged from the research study directed by the court.
• The respondents highlighted the economic impact of a ban, stating that the firecracker industry generates a revenue of ₹6,000 crores annually and employs five lakh families. They advocated for a balanced approach and the use of eco-friendly firecrackers.
• The State of Tamil Nadu supported the manufacturers, arguing that any study should examine the socio-economic impact of a ban and focus on alternatives for manufacturing less polluting firecrackers.
• An intervenor, Indic Collective, argued that burning firecrackers during Diwali is a religious practice protected by Article 25 of the Constitution.

The arguments of both sides were nuanced, focusing on the impact of firecrackers on health, the economy, and religious practices.

Submissions by Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the burning of firecrackers during Diwali and other festivals contributes to air and noise pollution to an extent that warrants regulatory measures.
2. Whether a complete ban on firecrackers is justified, or if a more balanced approach can be adopted to protect both the environment and the rights of manufacturers and traders.
3. Whether the right to health and a clean environment under Article 21 of the Constitution should take precedence over the right to trade under Article 19(1)(g) and the freedom of religion under Article 25.
4. What specific measures can be implemented to reduce the harmful effects of firecrackers while allowing for the celebration of festivals.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court’s judgment aimed to balance the competing interests of environmental protection, economic impact, and religious practices. The court acknowledged the significant contribution of firecrackers to air pollution, particularly during Diwali, and the adverse health effects caused by the increase in PM2.5 levels.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Vellore Citizens’ Welfare Forum v. Union of India and Others [CITATION]: The Court relied on this case to establish the applicability of the precautionary principle and the supremacy of environmental protection over the right to trade.
• A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Others [CITATION]: This case was used to elaborate on the precautionary principle and the burden of proof in environmental cases.
• Noise Pollution (V), in Re [CITATION]: The Court used this case to argue that religious practices can be regulated if they cause harm to public health.
• Shivashakti Sugars Limited v. Shree Renuka Sugar Limited and Others [CITATION]: This case was cited to discuss the interface between law and economics and the need to consider economic impacts while making legal decisions.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to protect public health and the environment, particularly the health of children. The court acknowledged the significant contribution of firecrackers to air pollution and the adverse health effects caused by the increase in PM2.5 levels. The court also considered the economic impact of a ban and the need to balance the right to health with the right to trade and religious practices.

The court’s reasoning was based on the following points:

• The precautionary principle allows for measures to be taken even in the absence of conclusive scientific studies, given the potential for irreversible harm.
• The right to health under Article 21 of the Constitution is a fundamental right that should take precedence over the right to trade under Article 19(1)(g) and the freedom of religion under Article 25, when there is a direct threat to health.
• A balanced approach is necessary, involving regulation and control of firecracker production, sale, and usage, rather than a complete ban.
• The need to promote community firecracking to minimize the impact on the environment.

Sentiment Analysis of Reasons

Fact:Law Ratio

Logical Reasoning

Key Takeaways

• ✓ The Supreme Court acknowledged the significant contribution of firecrackers to air pollution, particularly during Diwali.
• ✓ The Court directed the use of reduced emission (improved) and green crackers only, banning the production and sale of other types of firecrackers.
• ✓ The manufacture, sale, and use of joined firecrackers (series crackers or laris) were banned.
• ✓ The sale of firecrackers was restricted to licensed traders, with a ban on online sales through e-commerce websites.
• ✓ Barium salts in fireworks were banned.
• ✓ The court directed PESO to review the chemical composition of fireworks, particularly reducing aluminum content.
• ✓ The court mandated that fireworks can only be used during specific times: 8:00 p.m. to 10:00 p.m. on Diwali and other festivals, and 11:55 p.m. to 12:30 a.m. on Christmas Eve and New Year’s Eve.
• ✓ Community firecracking was encouraged, with designated areas for such activities.
• ✓ Extensive public awareness campaigns were mandated to inform the public about the harmful effects of firecrackers.
• ✓ The Station House Officer (SHO) of the concerned Police Station will be held personally liable for any violation of the order, amounting to contempt of court.

Potential Future Impact

• The judgment sets a precedent for balancing environmental concerns with economic and religious rights.
• It may lead to stricter regulations on the production and sale of firecrackers in the future.
• The emphasis on community firecracking may promote a more responsible way of celebrating festivals.
• The judgment may also encourage the development and use of more eco-friendly firecrackers.

Directions

The Supreme Court issued the following directions:

• ✓ Only reduced emission and green crackers are permitted for manufacture and sale.
• ✓ Production and sale of other types of firecrackers are banned.
• ✓ Joined firecrackers are banned.
• ✓ Sales are restricted to licensed traders, with a ban on online sales.
• ✓ Barium salts in fireworks are banned.
• ✓ PESO is directed to review the chemical composition of fireworks and submit a report within two weeks.
• ✓ Fireworks can only be used during specific times: 8:00 p.m. to 10:00 p.m. on Diwali and other festivals, and 11:55 p.m. to 12:30 a.m. on Christmas Eve and New Year’s Eve.
• ✓ Community firecracking is encouraged.
• ✓ Extensive public awareness campaigns are mandated.
• ✓ The SHO of the concerned Police Station will be held personally liable for any violation.

Conclusion

The Supreme Court’s judgment in Arjun Gopal vs. Union of India is a landmark decision that seeks to balance the right to a healthy environment with the right to trade and religious practices. The court acknowledged the significant contribution of firecrackers to air pollution and the adverse health effects, particularly on children. While not imposing a complete ban, the court directed the implementation of several measures to reduce the harmful effects of firecrackers, including the use of reduced emission and green crackers, a ban on joined firecrackers, regulation of sales, a ban on barium salts, and restrictions on the timing of firework displays. The court also emphasized the need for public awareness campaigns and encouraged community firecracking. This judgment sets a precedent for balancing environmental concerns with other rights and may lead to stricter regulations on the production and sale of firecrackers in the future.