# ARJUN GOPAL AND OTHERS v. UNION OF INDIA AND OTHERS

- **Citation:** [2018] 13 S.C.R. 464
- **Court:** Supreme Court of India
- **Decided:** 2018-10-23
- **Case number:** IA Nos. 6 and 8 of 2016
- **Bench:** A.K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arjun-gopal-and-others-v-union-of-india-and-others-32495
- **Pages:** 41

## Headnote

Environment - Air Pollution - Petitioners prayed for directions
to the respondents to take possible measures for checking the
pollution by striking at the causes of the pollution, which included
banning the use of firecrackers, sparkles and minor explosives, in
any form, during festivals or otherwise - The following specific
directions were issued: (1) Crackers with reduced emission (improved
crackers) and green crackers only would be permitted to be
manufactured and sold; (2) Production and sale of other crackers
is hereby banned; (3) Manufacture, sale and use of joined
firecrackers (series crackers or laris) is hereby banned; (4) Sale
shall only be through licensed traders; (5) no e-commerce websites,
including flipkart, amazon etc., shall accept any online orders and
effect online sales; (6) barium salts in the fireworks is also hereby
banned; (7) Petroleum and Explosives Safety Organisation (PESO)
is directed to review the clinical composition of fireworks,
particularly reducing aluminum content - For undertaking this
exercise, PESO would also associate Fireworks Research and
Development Centre (FRDC); (8) even those crackers which have
already been produced and they do not fulfill the reduced emission
firecrackers conditions will not be allowed to be sold in Delhi and
NCR; (9) 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;
(10) PESO will ensure suspension of the licenses of manufacturers
of such fireworks items and appropriate disposal of such stock;
[2018] 13 S.C.R. 464
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(11) 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; (12) 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; (13) 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 eve 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; (14) The Union of India, Government of NCT of
Delhi and the State Governments of the NCR would permit community
firecracking only for Diwali and some other festivals, wherever it
can be done - Even for marriages and other occasions, sale of
only improved crackers and green crackers is permitted - Insofar
as other States are concerned, an endeavour shall be made by them
also to explore the feasibility of community firecracking; (15) 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; (16) Central Pollution
Control Board (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.
Vellore Citizens' Welfare Forum v. Union of India and
Others
(1996) 5 SCC 647 : [1996] 5 Suppl. SCR
241 ; A.P. Pollution Control Board v. Prof. M.V. Nayudu
(Retd.) and Others (1999) 2 SCC 718 : [1999] 1 SCR
235 ; Noise Pollution (V), in Re (2005) 5

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SUPREME COURT REPORTS
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ARJUN GOPAL AND OTHERS
v.
UNION OF INDIA AND OTHERS
(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)
OCTOBER 23, 2018
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]
Environment - Air Pollution - Petitioners prayed for directions
to the respondents to take possible measures for checking the
pollution by striking at the causes of the pollution, which included
banning the use of firecrackers, sparkles and minor explosives, in
any form, during festivals or otherwise - The following specific
directions were issued: (1) Crackers with reduced emission (improved
crackers) and green crackers only would be permitted to be
manufactured and sold; (2) Production and sale of other crackers
is hereby banned; (3) Manufacture, sale and use of joined
firecrackers (series crackers or laris) is hereby banned; (4) Sale
shall only be through licensed traders; (5) no e-commerce websites,
including flipkart, amazon etc., shall accept any online orders and
effect online sales; (6) barium salts in the fireworks is also hereby
banned; (7) Petroleum and Explosives Safety Organisation (PESO)
is directed to review the clinical composition of fireworks,
particularly reducing aluminum content - For undertaking this
exercise, PESO would also associate Fireworks Research and
Development Centre (FRDC); (8) even those crackers which have
already been produced and they do not fulfill the reduced emission
firecrackers conditions will not be allowed to be sold in Delhi and
NCR; (9) 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;
(10) PESO will ensure suspension of the licenses of manufacturers
of such fireworks items and appropriate disposal of such stock;
[2018] 13 S.C.R. 464
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(11) 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; (12) 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; (13) 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 eve 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; (14) The Union of India, Government of NCT of
Delhi and the State Governments of the NCR would permit community
firecracking only for Diwali and some other festivals, wherever it
can be done - Even for marriages and other occasions, sale of
only improved crackers and green crackers is permitted - Insofar
as other States are concerned, an endeavour shall be made by them
also to explore the feasibility of community firecracking; (15) 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; (16) Central Pollution
Control Board (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.
Vellore Citizens' Welfare Forum v. Union of India and
Others
(1996) 5 SCC 647 : [1996] 5 Suppl. SCR
241 ; A.P. Pollution Control Board v. Prof. M.V. Nayudu
(Retd.) and Others (1999) 2 SCC 718 : [1999] 1 SCR
235 ; Noise Pollution (V), in Re (2005) 5 SCC 733 :
[2005] 1 Suppl. SCR 624 ; Shivashakti Sugars Limited
v. Shree Renuka Sugar Limited and Others (2017) 7
SCC 729 - referred to.
ARJUN GOPAL AND OTHERS v. UNION OF INDIA
AND OTHERS
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Case Law Reference
[1996] 5 Suppl. SCR 241
 referred to
Para 17
[1999] 1 SCR 235
 referred to
Para 17
[2005] 1 Suppl. SCR 624
 referred to
Para 17
(2017) 7 SCC 729
 referred to
Para 37
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
Under Article 32 of the Constitution of India
 WITH
Writ Petition (Civil) Nos. 891, 895, 899 of 2016 and 213 of 2017.
A. N. S. Nadkarni, ASG, Anil Grover, AAG, Ms. Vibha Dutta
Makhija, Shekhar Naphade, Dhruv Mehta, Ajit Kumar Sinha, Sr. Advs.,
Gopal Sankaranarayanan, Ms. Pooja Dhar, Amit Bhandari, Ms. Haripriya
Padmanabhan, Ms. Shery Patnaik, Ms. Ashiwariy Kane, Ms. Veera
Mahuli, Ms. Astha Sharma, Anubhav Kumar, Abhishek Swarup, Ankit
Agarwal, Ms. Disha Vaish, Vinodh Kanna B., A. Sriram, Abhikalp Pratap
Singh, Prateek Rusia, M/s. Corporate Law Group, Mrs. Sarla Chandra,
Vijay Panjwani, Rahul Mehra, Chirag M. Shroff, Ms. Neha Sangwan,
Ms. Charu Wali Khanna, Ms. Sanjana Nangi, Ms. Rohini Musa, Abhishek
Gupta, Zaffar Inayat, D. R. Raghunath, Mrs. V. D. Khanna, Anish R.
Shah, Ms. Aishwarya Bhati, Prakash Gautam, Shashank Shekhar Singh,
Sachin Mittal, Sagar Kothari, Ms. Mansi Bhatia, Pawan Sharma, Yoginder
Handoo, Bijender Singh Chaudhary, Hitesh Kumar Sharma, S. K. Rajora,
Vijay Partap Singh, Dr. Kailash Chand, Ms. Garima Bajaj, Ms. Aakansha
Kaul, M. A. Chinnasamy, Ms. C. Rubavathi, P. Raja Ram, S. Peer
Mohamad, V. Senthil Kumar, Ms. Supriya Juneja, Ms.Adihja Singla,
Bharat Monga, Ms. M. K. Aswaihi, S. Manoj Selyaraj, Dr. Arvind Kumar,
Ms. Nancy Mittal, Ashok Kumar Gupta II, Suvidutt M. S., Mohinder Jit
Singh, S. K. Verma, Yugandhara Pawar Jha, Ms. Uttara Babbar,
Ms. Bhavana Duhoon, Ms. Deboshree Kukherjee, Shyam Kumar, Sanjay
Kumar Visen, D. N. Goburdhun, W. A. Qadri, M. P. Gupta,
Ms. Pallavi Chopra, G. S. Makker, Ms. Pallavi C., Baijnath Patel, Ritesh
Kumar, Ms. Suhasini Sen, Ms. Kiran Bhardwaj, B. V. Balaram Das,
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M. Yoesh Kanna, Ms. Sujatha Bagadhi, S. Partha Sarathi, Aviral Saxena,
Sandeep Singh, Sanjay Kumar Tyagi, J. Sai Deepak, Vinesh K. Sharma,
Ashutosh Nagar, Pradeep Misra, Daleep Dhyani, Suraj Singh, Chandan
Kumar, Gaurang Kanth, Ms. Vandana Sehgal, Advs. for the appearing
parties.
Applicant-in-person.
The Judgment of the Court was delivered by
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 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
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
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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:
"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.""
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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.
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 (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
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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..."
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
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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.
(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
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
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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:
"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
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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 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.
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(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-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
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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. 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.
ARJUN GOPAL AND OTHERS v. UNION OF INDIA
AND OTHERS [A. K. SIKRI, J.]
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(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 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 TechnologyKanpur, 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.
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(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 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
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.
ARJUN GOPAL AND OTHERS v. UNION OF INDIA
AND OTHERS [A. K. SIKRI, J.]
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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 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
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category. 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.
(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.
ARJUN GOPAL AND OTHERS v. UNION OF INDIA
AND OTHERS [A.K. SIKRI, J.]
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(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 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 (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.