Supreme Court Regulates Firework Sales to Curb Pollution in Delhi NCR: Arjun Gopal vs. Union of India (12 September 2017)

Date of the Judgment: 12 September 2017
Citation: I.A. No. 52448 of 2017 in Writ Petition (Civil) No. 728 of 2015
Judges: Madan B. Lokur, J. and Deepak Gupta, J.
Can the celebration of festivals, specifically through the bursting of fireworks, be balanced with the need to protect the environment and public health? The Supreme Court of India grappled with this question in a public interest litigation concerning the alarming levels of air pollution in the National Capital Region (NCR), particularly around the time of Diwali. The Court addressed the issue of air pollution caused by fireworks, the regulatory framework governing their sale and use, and the need for a balanced approach to protect both the environment and the livelihoods of those involved in the firework industry. The judgment was delivered by a bench of Justices Madan B. Lokur and Deepak Gupta.

Case Background

The case arose from a public interest litigation (PIL) filed under Article 32 of the Constitution of India, seeking a ban on the use of fireworks, sparklers, and minor explosives during festivals. The immediate trigger for the PIL was the severe air pollution experienced in Delhi and the NCR after Diwali in 2016. On October 31, 2016, the day after Diwali, PM2.5 levels in the air crossed 700 µg/m3, far exceeding the World Health Organization (WHO) standards and the National Ambient Air Quality Standards laid down in Schedule VII of the Environment (Protection) Rules, 1986. This led to widespread health issues and the increased use of face masks and air purifiers by the public. The petitioners sought a complete prohibition on the sale of fireworks to mitigate air pollution.

Timeline

Course of Proceedings

Initially, the Supreme Court passed an interim order on 11th November, 2016, suspending all licenses for the sale of fireworks in the NCR due to the severe air pollution. Subsequently, manufacturers and suppliers of fireworks, primarily based in Sivakasi, Tamil Nadu, filed an application (I.A. No. 52448 of 2017) seeking modification of this interim order. They argued that fireworks were not the major cause of air pollution and that the ban was affecting the livelihoods of many people involved in the industry. The applicants also presented studies and reports suggesting that other factors, such as construction activity, vehicular pollution, and crop burning, were significant contributors to air pollution in Delhi.

Legal Framework

The judgment primarily references the following legal provisions:

• ✓ The Explosives Act, 1884: This Act and the rules framed under it govern the manufacture, possession, sale, transport, import, and export of explosives, including fireworks. Section 4(d) of the Act defines ‘explosive’ to include fireworks.
• ✓ The Explosives Rules, 2008: These rules classify fireworks into different divisions and subdivisions based on their hazard levels. Rule 2(24) defines “fireworks” and Rule 2(25) defines “fireworks composition.” Rule 4 classifies fireworks into sound-emitting, color/light-emitting, and display fireworks. Rule 9(5) exempts possession of fireworks up to 100 kg for personal use from licensing requirements. Rule 15 specifies marking requirements on packages of explosives, and Rule 84 deals with temporary shops for the sale of fireworks during festivals.
• ✓ The Environment (Protection) Rules, 1986: Schedule VII of these rules lays down the National Ambient Air Quality Standards, specifying permissible levels of pollutants like PM2.5 and PM10.
• ✓ The Air (Prevention and Control of Pollution) Act, 1981: This Act provides for measures to prevent and control air pollution.

The court also referred to previous orders passed in Noise Pollution (V), In Re. [(2005) 5 SCC 733], which dealt with the noise levels of firecrackers and Sadar Bazar Fire Works (Pucca Shop) Association v. Pankaj Traders & Ors. [SLP (C) Nos. 17327-28/1993], regarding the conditions for licensing firework shops.

Arguments

Arguments of the Applicants (Manufacturers and Suppliers of Fireworks):

• ✓ Fireworks are not a major contributor to air pollution. They cited the National Green Tribunal’s (NGT) findings that identified other factors such as construction activity, burning of municipal solid waste, vehicular pollution, and industrial emissions as major contributors.
• ✓ A study by the Indian Institute of Technology, Kanpur (IIT-K) suggested that fireworks are not a significant source of PM2.5 pollution in Delhi.
• ✓ Poor wind speed and other geographical and meteorological conditions contribute to smog in Delhi.
• ✓ Crop burning in Punjab and Pakistan also contributes to air pollution in Delhi.
• ✓ The bursting of fireworks around Diwali is a temporary event and does not cause long-lasting air pollution.
• ✓ The ban on the sale of fireworks was affecting the livelihoods of about 5 lakh people employed in the industry.

Arguments of the Petitioners (Seeking a Ban on Fireworks):

• ✓ The severe air pollution in Delhi, especially after Diwali, is a major health hazard, particularly for children.
• ✓ The right to health is a fundamental right and includes the right to breathe clean air.
• ✓ The harmful chemicals used in fireworks have serious health effects.
• ✓ The suspension of licenses for the sale of fireworks should continue to protect public health, especially in the absence of clear standards for measuring the impact of fireworks on air pollution.
• ✓ The precautionary principle should be applied, and the safer course is to continue the ban.

Innovative Argument: The petitioners argued that in the absence of clear standards to measure the impact of bursting fireworks on air pollution, the safer course would be to continue the suspension rather than risk the health of the people.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the interim order passed on 11th November, 2016, suspending licenses for the sale of fireworks in the NCR, should be modified or vacated.
2. Whether there is a need to regulate the sale and use of fireworks to protect the environment and public health.
3. What measures should be taken to reduce air pollution caused by fireworks?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• ✓ Noise Pollution (V), In Re. [(2005) 5 SCC 733] – Supreme Court of India: This case dealt with the regulation of noise levels of firecrackers. The court had directed the Department of Explosives (DOE) to specify the chemical composition of firecrackers and categorized them into sound-emitting and color/light-emitting firecrackers.
• ✓ Sadar Bazar Fire Works (Pucca Shop) Association v. Pankaj Traders & Ors. [SLP (C) Nos. 17327-28/1993] – Supreme Court of India: This case concerned the conditions for granting temporary licenses for firework shops. The court had addressed the issue of the minimum distance between firework shops and other storage facilities.
• ✓ Consumer Education & Research Centre v. Union of India [(1995) 3 SCC 42] – Supreme Court of India: This case established that the right to health is a fundamental right under Article 21 of the Constitution.
• ✓ Occupational Health & Safety Assn. v. Union of India [(2014) 3 SCC 547] – Supreme Court of India: This case reiterated that the right to health is a fundamental right, flowing from Article 21 of the Constitution.
• ✓ Vellore Citizens’ Welfare Forum v. Union of India [(1996) 5 SCC 647] – Supreme Court of India: This case emphasized the right to a pollution-free environment as a part of the basic jurisprudence of the land.

Legal Provisions:

• ✓ Section 4(d) of the Explosives Act, 1884: Defines ‘explosive’ to include fireworks.
• ✓ The Explosives Rules, 2008:
  • ✓ Rule 2(19): Defines “display fireworks.”
  • ✓ Rule 2(24): Defines “fireworks.”
  • ✓ Rule 2(25): Defines “fireworks composition.”
  • ✓ Rule 2(32): Defines “manufactured fireworks.”
  • ✓ Rule 4: Classifies explosives, including fireworks.
  • ✓ Rule 9(5): Exempts possession of fireworks up to 100 kg for personal use from licensing requirements.
  • ✓ Rule 15: Specifies marking requirements on packages of explosives.
  • ✓ Rule 75: Provides for permits for temporary possession of manufactured fireworks.
  • ✓ Rule 84: Deals with temporary shops for the sale of fireworks during festivals.
  • ✓ Rule 99: Provides for the grant of licenses by specified authorities.
• ✓ Schedule VII of the Environment (Protection) Rules, 1986: Specifies National Ambient Air Quality Standards.

Authorities Considered by the Court

Judgment

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

How each authority was viewed by the Court?

• ✓ The Court followed the directions issued in Noise Pollution (V) [(2005) 5 SCC 733] regarding noise levels of firecrackers.
• ✓ The Court partially modified the directions in Sadar Bazar Fire Works (Pucca Shop) Association [SLP (C) Nos. 17327-28/1993] to ensure conformity with the Explosives Rules.
• ✓ The Court reiterated the fundamental right to health as established in Consumer Education & Research Centre [(1995) 3 SCC 42] and Occupational Health & Safety Assn. [(2014) 3 SCC 547].
• ✓ The Court emphasized the right to a pollution-free environment as upheld in Vellore Citizens’ Welfare Forum [(1996) 5 SCC 647].
• ✓ The Court used Section 4(d) of the Explosives Act, 1884 to define fireworks as explosives.
• ✓ The Court relied on the Explosives Rules, 2008 to classify and regulate fireworks.
• ✓ The Court referred to Schedule VII of the Environment (Protection) Rules, 1986 to establish the National Ambient Air Quality Standards.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to balance public health concerns with the economic impact of a complete ban on fireworks. The Court recognized the severe air pollution in Delhi and the NCR, particularly around Diwali, and the potential health hazards, especially for children. However, it also acknowledged that fireworks were not the sole cause of pollution and that a complete ban might be too extreme. The Court emphasized the fundamental right to health and the right to breathe clean air, while also considering the livelihoods of those involved in the firework industry.

Fact:Law Ratio: The court’s decision was influenced by both factual aspects of the case (such as the severity of pollution and the economic impact) and legal considerations (such as the right to health and the regulatory framework).

Logical Reasoning:

Alternative Interpretations: The Court considered the possibility of a complete ban on fireworks but rejected it as too extreme. It also considered the economic impact on the firework industry and the need for a balanced approach.

Key Quotes from the Judgment:

• ✓ “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…”
• ✓ “The right to breathe clean air is a recognized right under our Constitution.”
• ✓ “…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.”

Majority and Minority Opinions: There were no dissenting opinions in this case. The judgment was delivered by a bench of two judges, Justices Madan B. Lokur and Deepak Gupta.

Key Takeaways

• ✓ The Supreme Court lifted the suspension on permanent licenses for the sale of fireworks in Delhi and the NCR but imposed several regulations.
• ✓ The Court prohibited the use of certain chemicals in fireworks, including antimony, lithium, mercury, arsenic, lead, and strontium chromate.
• ✓ The Court directed the Delhi Police and other authorities to reduce the number of temporary licenses for firework sales.
• ✓ The Court emphasized the need for public awareness campaigns, particularly in schools, about the health hazards of bursting fireworks.
• ✓ The Court directed the CPCB and the FDRC to conduct a research study and lay down standards for ambient air quality in relation to fireworks.
• ✓ The Court appointed a committee to conduct a study on the impact of bursting fireworks on public health.
• ✓ The Court encouraged the government and other authorities to promote community display fireworks rather than individual bursting of fireworks.

Directions

The Supreme Court issued the following directions:

1. ✓ The directions in Sadar Bazar Fire Works (Pucca Shop) Association were partially modified to conform with the Explosives Rules.
2. ✓ Rule 15 (marking on packages) and Rule 84 (temporary shops) of the Explosives Rules were to be strictly enforced.
3. ✓ Directions in Noise Pollution (V) regarding noise levels of firecrackers were to continue.
4. ✓ Fireworks were prohibited in silence zones (100 meters from hospitals, schools, etc.).
5. ✓ The Delhi Police was directed to reduce temporary licenses by 50% (capped at 500). States in NCR were also restricted to 50% of 2016 licenses.
6. ✓ The Union of India was directed to ensure strict compliance with the ban on the import of fireworks and update the notification if necessary.
7. ✓ The Department of Education was directed to formulate a plan to educate school children about the hazards of fireworks.
8. ✓ The Government of NCT of Delhi and other states were directed to consider issuing health advisories.
9. ✓ The use of compounds of antimony, lithium, mercury, arsenic, lead, and strontium chromate in the manufacture of fireworks was prohibited.
10. ✓ Fireworks containing aluminium, sulphur, potassium, and barium, as approved by PESO, were permitted.
11. ✓ Transport of fireworks into Delhi and the NCR was prohibited.
12. ✓ The suspension of permanent licenses was lifted, but licensees were put on notice that they would be permitted to sell only 50% of the quantity permitted in 2017 in 2018.
13. ✓ The CPCB and the FDRC were directed to conduct a joint research study and lay down standards for ambient air quality.
14. ✓ A committee was appointed to study the impact of bursting fireworks on health, with a report due by 31st December 2017.
15. ✓ The Central Government and other authorities were encouraged to promote community display fireworks.

Specific Amendments Analysis

The judgment does not discuss any specific amendments.

Development of Law

Ratio Decidendi: The ratio decidendi of this case is that the right to health and the right to breathe clean air are fundamental rights that must be balanced with other considerations, such as economic interests. The Court emphasized the need for a graded and balanced approach to regulate the sale and use of fireworks, rather than a complete ban.

Change in Previous Positions of Law: The judgment modified the interim order passed on 11th November, 2016, which had suspended all licenses for the sale of fireworks in the NCR. While the Court lifted the suspension of permanent licenses, it imposed several regulations and restrictions, indicating a shift towards a more balanced approach.

Summary

The Supreme Court’s judgment in Arjun Gopal vs. Union of India sought to balance the right to a clean environment with the regulation of firework sales during festivals. The Court acknowledged the severe air pollution in Delhi NCR, especially after Diwali, and the health hazards it posed. However, it also recognized the economic impact of a complete ban on the firework industry. The Court modified its interim order, lifting the suspension of permanent licenses but imposing several regulations to control the sale and use of fireworks. These regulations included restrictions on the chemicals used in fireworks, a reduction in the number of temporary licenses, and a ban on the transport of fireworks into Delhi and the NCR. The Court also directed public awareness campaigns and research studies to further understand and mitigate the impact of fireworks on air quality. The judgment emphasized the need for a graded and balanced approach, prioritizing public health while also considering economic interests.