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TMI Blog2017 (9) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fireworks was considered at an interim stage by this Court and a detailed order passed on 11th November, 2016. Arjun Gopal v. Union of India, (2017) 1 SCC 412 The manufacturers and suppliers of fireworks primarily based in Sivakasi (Tamil Nadu) moved an application on or about 5th July, 2017 for modification of that interim order. The modification application is registered as I.A. No. 52448 of 2017 and we now propose to decide that application. 4. The background for the interim order passed on 11th November, 2016 is that Diwali was celebrated in 2016 on 30th October. On the next day, it was discovered that PM 2.5 levels in the air had crossed 700 μg/m3 being among the highest levels recorded in the world and about 29 times above the standards laid down by the World Health Organization (WHO). We need not delve into the details given in the order since there is no dispute that the air in Delhi and in most parts of the National Capital Region (NCR) was stiflingly polluted. This resulted in many falling sick and others having to purchase face masks for personal use and install air purifiers in buildings. 5. The conclusion that the air in the NCR and particularly in Delhi was pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed continuous analyzer Adsorption and Desorption followed by GC analysis 10. Benzo(α) Pyrene (BaP) - particulate phase only, ng/m3 Annual* 01 01 - Solvent extraction followed by HPLC /GC analysis 11. Arsenic (As), µg/m3 Annual* 06 06 - AAS/ICP method after sampling on EPM 2000 or equivalent filter paper 12. Nickel (Ni), µg/m3 Annual* 20 20 - AAS/ICP method after sampling on EPM 2000 or equivalent filter paper * Annual arithmetic mean of minimum 104 measurements in a year at a particular site taken twice a week 24 hourly at uniform intervals. ** 24 hourly or 08 hourly or 1 hourly monitored values, as applicable, shall be complied with 98% of the time in a year, 2% of the time, they may exceed the limits but not on two consecutive days of monitoring. Notes. - Whenever and wherever monitoring results on two consecutive days of monitoring exceed the limits specified above for the respective category, it shall be considered adequate reason to institute regular or continuous monitoring and further investigations. 6. In the backdrop of these staggeringly high PM2.5 levels and other information provided by learned counsel appearing for the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that fireworks are not a major contributor of air pollution. We may, however, add that during the course of submissions, it was accepted by learned counsel for all the parties that whether or not the bursting of fireworks is a major cause of air pollution in the NCR, it is certainly one of the causes of air pollution, particularly in Delhi. 11. The applicant also referred to and relied upon a study conducted by the Indian Institute of Technology, Kanpur (IIT-K) in January 2016. The study is titled "Comprehensive Study on Air Pollution and Green House Gases in Delhi". The study was submitted in the form of a report to the Department of Environment of the Government of NCT of Delhi and the Delhi Pollution Control Committee. The study conducted by IIT-K suggests that the sources of PM2.5 are several but the bursting of fireworks is not one of them. We have not been informed whether any use has been made (if at all) of the study. 12. In addition to the aforesaid, the applicant also relied upon a view expressed by the CPCB before this Court to the effect that poor wind speed was one of the causes of smog over Delhi particularly in the winter months. It was also submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that this ban is still in force and therefore it cannot be said that the terrible quality of air in Delhi in November 2016 and thereafter is attributable only to bursting of fireworks - there are several other factors. It was submitted that on an overall consideration of the issues, the ban and sale of fireworks in Delhi and in the NCR should be modified if not lifted. 16. Learned counsel for the petitioners gave us a Note on the harmful and deleterious effects of some of the chemicals used in fireworks. We have no doubt and indeed no learned counsel had any doubt that the excessive use of chemicals in fireworks could have serious and deleterious health effects, particularly among children. We are, therefore, proceeding on this basis without reference to the Note since there is no dispute on this aspect. With this agreement in mind (which has always been there), we had passed an order on 31st July, 2017 after hearing learned counsel as well as Dr. A.B. Akolkar, Member Secretary of the CPCB and Mr. K. Sundershan, Deputy Chief Controller of Explosives, Sivakasi to the effect that fireworks manufactured by the respondents shall not contain antimony, lithium, mercury, arsenic and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of chemical composition, we feel that the latter method is more practical and workable in Indian circumstances. It shall be followed unless and until replaced by a better system. 2. The Department of Explosives (DOE) shall undertake necessary research activity for the purpose and come out with the chemical formulae for each type or category or class of firecrackers. DOE shall specify the proportion/composition as well as the maximum permissible weight of every chemical used in manufacturing firecrackers. 3. The Department of Explosives may divide the firecrackers into two categories - (i) sound-emitting firecrackers, and (ii) colour/lightemitting firecrackers. 4. There shall be a complete ban on bursting sound-emitting firecrackers between 10 p.m. and 6 a.m. It is not necessary to impose restrictions as to time on bursting of colour/light-emitting firecrackers. 5. Every manufacturer shall on the box of each firecracker mention details of its chemical contents and that it satisfies the requirement as laid down by DOE. In case of a failure on the part of the manufacturer to mention the details or in cases where the contents of the box do not match the chemical for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een directed to personally address students to adopt safer measures to celebrate Diwali. It is stated that since 2010, circulars have been issued by the Directorate to spread the message of "Say No to Crackers". 24. Finally, it is stated that on 24th August, 2017 the Directorate of Education has issued a circular to all heads of schools falling under the Directorate of Education to sensitize students and staff members about the illeffects of bursting fireworks. 25. An affidavit has also been filed on behalf of the Commissioner of Police in Delhi on 28th August 2017, in which it is stated that temporary licences for stocking fireworks can be granted by a Magistrate by virtue of Section 146 of the Delhi Police Act read with Section 4(c) of the Explosives Act. It is stated that the temporary licences are granted for 24 days, that is, two days before Dussehra and two days after Diwali. In any case, no temporary licence is granted for more than 30 days. In addition, it is stated that in the case of temporary sheds, a licence is granted for not more than 15 days in terms of the Explosives Rules. 26. It is stated on behalf of the Commissioner of Police in Delhi that the maximum quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re received for temporary licences and only 968 temporary licences were issued for a period of 24 days each (the corresponding figure for the NCR minus Delhi has not been given to us). 30. We were informed by the learned counsel for the Commissioner of Police that there is a prohibition on bursting fireworks between 10.00 pm and 06.00 am and a prohibition on the bursting of fireworks in silence zones, that is an area not less than 100 metres around hospitals, educational institutions, courts, religious places or any other area declared as such by the competent District Deputy Commissioner of Police. 31. An affidavit has also been filed on behalf of the CPCB on 29th August, 2017 in which it is stated that during Diwali day, the level of metals/ constituents of fireworks indicated by PESO, that is aluminium, sulphur, potassium and barium are elevated. Some other constituents, such as titanium, iron, copper, zinc, strontium, antimony and chlorine were found to be in higher concentration during Diwali day as compared to other days. But the higher level of these constituents is observed only for one day. According to the CPCB, to regulate and minimize the adverse effects of fireworks, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken in accordance with the provisions of the law. 36. Section 4 of the Explosives Act, 1884 (for short 'the Act') contains various definitions. Section 4(d) defines the word 'explosive' and it includes, amongst others, fireworks. In this context, the classification of explosives is given in Schedule I to the Explosives Rules, 2008 (for short 'the Rules') and Class 7 thereof relates to fireworks which are categorized into divisions and classes. This reads as follows: Class 7 - Fireworks Class "(1) Fireworks Class has four divisions, namely, Division 1, Division 2, Division 3, and Division 4. (2) Division 1 comprises fireworks composition that is to say, any chemical compound or mechanically mixed preparation of an explosive or inflammable nature, which is used for the purpose of making manufactured firework, and is not an explosive of classes 1,2,3,4,5 & 6, any star and any coloured fire composition: Provided that a substantially constructed hermetically closed metal case, containing not more than 500 grammes of coloured fire composition of such a nature, as not to be liable to spontaneous ignition shall be deemed to be "a manufactured firework" and not a "firework co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other class of explosives, and includes any star or colored fire composition. 41. Finally, Rule 2(32) defines "manufactured fireworks" as low hazard explosive contrivance containing explosive or combination of different classes, namely, Class 1 or Class 2 or Class 3 or Class 4 or Class 6 given in Part 1 of Schedule I of these rules or any explosives that come under Division 2 or Division 3 or Division 4 under Class 7 given under the said Part. 42. Rule 4 deals with the classifications of explosives and as far as fireworks are concerned, they are categorized into sound emitting fireworks, colour or light emitting fireworks, display fireworks and fireworks for export purposes. We are concerned only with the first three categories of fireworks and they are explained as follows: "4. Classification of explosives.-(1) For the purposes of these rules, the explosives shall be classified in the manner specified in Schedule I. The dual system of classification shall be retained for five years from the date of commencement of these Rules, thereafter only UN classification shall be applicable. (2) If any explosive falls within the limits of more than one class as defined in Schedule I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule (2) of rule 10; and (l) a paper slip containing the above details shall be kept inside the package: Provided that in the case of safety fuse or fireworks, clauses (a) and (1) may be omitted and the words "safety fuse" or "Fireworks" shall be marked. (ii) In case of fireworks, the names of the items, for example - amorces, paper caps, serpents eggs, etc., as appropriate shall be marked. (iii) Every manufacturer shall on the box of each fire cracker shall mention details of its chemical content, sound level and that it satisfies requirements as laid down by the Chief Controller. Fire-cracker meant for export shall have a different colour packing from those intended to be sold in India and a clear print indicating that they are not to be sold in India." Sub-Rule 4 of Rule 15 of the Rules is also of some importance and this reads as follows: "(4) Marking on fireworks.- In case of fireworks, explosive composition, quantity of such composition, whether sound emitting crackers or colour or light emitting crackers, sound level, a caution or warning indicating the name of the item, manufacturer's name, method of firing and precautions to be taken both in words and pictorial v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for documents to be furnished for approval and grant of a licence and the relevant Form required to be filled up by an applicant. 49. Schedule IV referred to in Rule 99 of the Rules, particularly Part 1 thereof is required to be read with Rule 113 of the Rules and from a perusal of items 5 and 6 thereof, the limits for possession and sale of fireworks, the relevant licensing application form and the licensing authority are indicated. 50. Learned counsel for the applicant informed us through a note that as of date, in the NCR, PESO has issued 435 permanent licences and in Delhi alone, PESO has issued 175 permanent licences, thereby making a total of 610 permanent licences. It is further stated that the stocks in hand of the fireworks in the NCR both under permanent and temporary licences is 50,00,000 kg in the NCR and 1,00,000 kg in Delhi. What more needs to be done 51. What is necessary now is to correlate air pollution with the sale and bursting of fireworks in Delhi and the NCR. There is no doubt that the air we breathe gets polluted with the bursting of fireworks. The extent of air pollution caused by bursting fireworks is not clear in the absence of empirical data ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mented by the governmental authorities, the residents responded in an ad hoc manner by purchasing face masks and air purifiers. There is no doubt that an effective and longer lasting solution is necessary. 57. What has really disturbed us is that the CPCB was directed on 11th November, 2016 to study and prepare a report within three months on the harmful effects of the materials used in the manufacture of fireworks. It is astonishing that the CPCB has not conducted the study and prepared a report as directed. Apart from the fact that the CPCB has not conducted any study, even otherwise, no standards have been laid down by the CPCB which could give any indication of the acceptable and permissible limit of constituent metals or chemicals used in fireworks and released in the air, beyond which their presence would be harmful or dangerous. There cannot be any doubt that the presence of certain metals or chemicals in the air beyond a particular limit would be inadvisable but that limit is not known to anybody including the CPCB. Therefore, any discussion on the subject of whether there is an excessive presence of a particular chemical in the air will not yield any result unless some au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Delhi, pollution would flow in from the neighbouring States in any case. The report prepared by NEERI and the IIAS has not been made available to us. 60. Be that as it may, the CPCB has now concluded that only strontium chromate is harmful or dangerous to human health. Therefore, we have no option but to prohibit the use of strontium chromate in the manufacture of fireworks. 61. It was submitted by Mr. P.S. Patwalia, learned counsel appearing for one of the respondents that the best possible solution to the problem of air pollution in Delhi, allegedly due to the bursting of fireworks, would be to constitute a Committee to advise this Court. It was submitted that when the issue of noise pollution had surfaced, the CPCB had set up the National Committee on Noise Pollution and Control in 1997 which led to noise pollution standards being set. It was suggested that a similar exercise may be undertaken to deal with the issue of air pollution due to bursting of fireworks in Delhi. This was precisely the purpose of issuing a direction to the CPCB on 11th November, 2016 but that was not taken seriously. Therefore, in our opinion, the suggestion deserves acceptance and it is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(e), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity." 64. A similar view was expressed in Occupational Health & Safety Assn. v. Union of India (2014) 3 SCC 547 when it was held in paragraph 10 of the Report: "Right to health i.e. right to live in a clean, hygienic and safe environment is a right flowing from Article 21. Clean surroundings lead to healthy body and healthy mind. But, unfortunately, for eking out a livelihood and for national interest, many employees work in dangerous, risky and unhygienic environment. Right to live w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mill; to corrupt or poison a watercourse, by erecting a dye-house or a lime-pit, for the use of trade, in the upper part of the stream; to pollute a pond, from which another is entitled to water his cattle; to obstruct a drain; or in short to do any act in common property, that in its consequences must necessarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of 'doing to others, as we would they should do unto ourselves'." Our legal system having been founded on the British common law the right of a person to a pollution-free environment is a part of the basic jurisprudence of the land." 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SLP (C) No. 17327-28/1993 decided on 1st November, 1993 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reworks 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 licensee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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