2017 (9) TMI 1533 - SC - Indian Laws

Ban the use of fireworks, sparklers and minor explosives in any form, during festivals or otherwise - Fireworks and air pollution in 2016 - Held that - 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) 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 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 aluminium, 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. (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 FDRC laying down appropriate standards for ambient air quality in relation to the bursting of fireworks and the release of their constituents in the 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.

Summary

Issues Involved:
1. Ban on the use of fireworks, sparklers, and minor explosives.
2. Air pollution caused by fireworks.
3. Compliance with the Explosives Act, 1884 and the Explosives Rules, 2008.
4. Impact of the interim order dated 11th November 2016.
5. Application for modification of the interim order.
6. Steps taken to reduce air pollution.
7. Role and responsibilities of various authorities in controlling air pollution.
8. Human right to health and clean air.
9. Directions for future regulation and research.

Detailed Analysis:

1. Ban on the Use of Fireworks:
The petitioners sought a writ of mandamus to ban the use of fireworks, sparklers, and minor explosives during festivals or otherwise. The Court considered this from the perspectives of preventing air pollution and invoking the provisions of the Explosives Act, 1884, and the Explosives Rules, 2008.

2. Air Pollution Caused by Fireworks:
The Court noted the severe air pollution in Delhi and the NCR post-Diwali 2016, with PM2.5 levels crossing 700 µg/m3, far exceeding WHO standards. The statutory standards in Schedule VII of the Environment (Protection) Rules, 1986, were highlighted, indicating permissible levels for various pollutants.

3. Compliance with the Explosives Act, 1884, and the Explosives Rules, 2008:
The Court examined the classification and regulation of fireworks under the Explosives Act and Rules. It emphasized the need for strict enforcement of Rule 15 (marking on explosives and packages) and Rule 84 (temporary shops for possession and sale of fireworks during festivals).

4. Impact of the Interim Order Dated 11th November 2016:
The interim order suspended licenses for the sale of fireworks in the NCR. The Court noted the implementation of this order and the requirement for the Central Pollution Control Board (CPCB) to study the harmful effects of materials used in fireworks, which had not been complied with.

5. Application for Modification of the Interim Order:
Manufacturers and suppliers of fireworks, primarily based in Sivakasi, sought modification of the interim order, arguing that fireworks were not a major contributor to air pollution. They cited other sources of pollution and studies indicating that fireworks had a temporary and transitory impact on air quality.

6. Steps Taken to Reduce Air Pollution:
Various measures were discussed, including the establishment of the Fireworks Development Research Centre (FDRC) and the issuance of directions by the Delhi Pollution Control Committee. The Court noted the need for a concerted effort to raise awareness about the health hazards of fireworks, particularly among children.

7. Role and Responsibilities of Various Authorities:
The Court criticized the lethargic response of the Government of NCT of Delhi and the CPCB's failure to conduct the required study. It emphasized the need for proactive steps by governmental authorities to protect public health and reduce air pollution.

8. Human Right to Health and Clean Air:
The Court reiterated that the right to health and clean air is a fundamental right under Article 21 of the Constitution. It cited previous judgments affirming the right to live in a clean, hygienic, and safe environment.

9. Directions for Future Regulation and Research:
The Court issued several directions, including:
- Strict enforcement of the Explosives Rules.
- Reduction in the number of temporary licenses for fireworks.
- Prohibition on the use of certain chemicals in fireworks.
- Encouragement of community participation in display fireworks.
- Conducting research studies on the impact of fireworks on air quality and health.

The application for modification of the interim order was disposed of with these directions, emphasizing a balanced approach to reduce air pollution while considering the interests of fireworks manufacturers and sellers.