An analysis of SC's refusal to issue a blanket ban on sale of Firecrackers

It has to be exclaimed with exuberance right at the outset that in a landmark judgment titled Arjun Gopal and others v Union of India and others in Writ Petition (Civil) No. 728 of 2015 with Writ Petition (Civil) No. 891 of 2016, Writ Petition (Civil) No. 895 of 2016, Writ Petition (Civil) No. 899 of 2016 and Writ Petition (Civil) No. 213 of 2017 delivered on October 23, 2018, the Supreme Court has passed a string of landmark directions which are certainly laudable and deserves to be implemented in totality. This landmark judgment was authored by Justice AK Sikri for himself and Justice Ashok Bhushan. No doubt, this landmark judgment will go a long way in ensuring that the environment is not slaughtered mercilessly by polluting it mercilessly!

Needless to say, this landmark judgment gets going by first and foremost pointing out that, '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 striking 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.'

Simply put, we thus see here that the petitioner makes a strong case for banning the use in any form of firecrackers, sparkles and explosives, in any form, during festivals or otherwise as it has a very deleterious impact on the health of people especially children. It may be noted that the Bench of Justices AK Sikri and Ashok Bhushan had reserved its verdict on August 28 on the PILs filed by kid petitioners – Arjun Gopal, Aarav Bhandari and Zoya Rao Bhasin who were all aged between three and four years. Their lawyer Gopal Sankaranarayanan had sought a complete ban on sale, purchase and transportation of crackers.

Truth be told, para 23 minces no words in stating clearly and convincingly that, 'It can be discerned from the above that the air quality had worsened during Diwali. There were more patients with symptoms of eye, increased coughing and patients with high metal levels in urine. Even noise level had increased. These are the adverse impacts of firecracker bursting, though the study mentions that statistically it was not a significant increase.'

To put things in perspective, para 42 then spells out quite clearly and categorically that, 'We are of the opinion that the aforesaid suggestions strive a nice balance between the two competing interests. We accept the aforesaid measures as suggested by the Union of India and direct the Union of India and other concerned authorities to implement the same with immediate effect. In view thereof, following specific directions are issued:

(i) The crackers with reduced emission (improved crackers) and green crackers, as mentioned in Suggestion Nos. II and III above only would be permitted to be manufactured and sold.

(ii) As a consequence, production and sale of crackers other than those mentioned in Suggestion Nos. II and III is hereby banned.

(iii) The manufacture, sale and use of joined firecrackers (series crackers or laris) is hereby banned as the same causes huge air, noise and solid waste problems.

(iv) The sale shall only be through licensed traders and it shall be ensured that these licensed traders are selling those firecrackers which are permitted by this order.

(v) No e-commerce websites, including Flipkart, Amazon etc., shall accept any online orders and affect online sales. Any such e-commerce companies found selling crackers online will be hauled up for contempt of court and the court may also pass, in that eventuality, orders of monetary penalties as well.

(vi) Barium salts in the fireworks is also hereby banned.

(vii) PESO is directed to review the clinical composition of fireworks, particularly reducing Aluminium content, and shall submit its report in respect thereof within a period of two weeks from today. For undertaking this exercise, PESO would also associate FRDC.

(viii) Even those crackers which have already been produced and they do not fulfill the conditions mentioned in Suggestion Nos. II and III above will not be allowed to be sold in Delhi and NCR.

(ix) 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.

(x) PESO will ensure suspension of the licenses of manufacture of such fireworks items and appropriate disposal of such stock.

(xi) 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. To add to it, as mentioned in the order dated September 12, 2017, the directions issued and restrictions imposed in the order passed by this Court on July 18, 2005 in Noise Pollution (V) shall continue to be in force.

(xii) Direction Nos. 4 to 9 and 11 contained in the order dated September 12, 2017 shall continue to operate and are reiterated again.

(xiii) Extensive public awareness campaigns shall be taken up by the Central Government/State Governments/Schools/IAs in Writ Petition (Civil) No. 728 of 2015 & Ors. Page 50 of 54 Colleges informing the public about the harmful effects of firecrackers.

(xiv) On Diwali days or 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 even 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.

(xv) The Union of India, Government of NCT of Delhi and the State Governments of the NCR would permit community firecracking only (for Diwali and other festivals etc. as mentioned above), wherever it can be done. For this purpose, particular area/fields would be pre-identified and predesignated by the concerned authorities. This exercise shall be completed within a period of one week from today so that the public at large is informed about the designated places one week before Diwali. The areas designated now for the purpose of Diwali shall be valid for community fire cracking on other occasions/festivals as well, as mentioned above. Even for marriages and other occasions, sale of improved crackers and green crackers is only permitted. Insofar as other States are concerned, an endeavour shall be made by them also to explore the feasibility of community fire-cracking. However, it is made clear that Direction No.(xvi) pertaining to the duration within which fireworks can take place on all such occasions would be applicable throughout India. Similarly, Direction No. (xiii) for extensive public awareness campaigns is also a pan India direction.

(xvi) 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. In case any violation is found, the Station House Officer (SHO) of the concerned Police Station of the area shall be held personally liable for such violation and this would amount to committing contempt of the Court, for which such SHO(s) would be proceeded against.

(xvii) 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, Aluminium, 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. This will help in generation of data on pollution caused by the bursting of firecrackers and would be helpful for regulation and control quantity of Aluminium, Barium and Iron used in the manufacture of firecrackers.'

To be sure, it is then observed in para 43 that, 'One clarification needs to be given at this stage. Our discussion pertaining to the arguments based on Article 19(1)(g), Article 25 as well as the argument of loss of sustained revenue and unemployment, in case the manufacture and sale of the firecrackers is totally banned, is prima facie and we have not given our conclusive determination. It is because of want of detailed studies on various aspects which have been mentioned and taken note of during discussion in this order. However, we also make it clear that, prima facie, we do not find much merit in these arguments for which we have given our reasons in brief.'

In essence, para 44 then specifies that, 'Having regard to the overall circumstances, we have decided that, for the time being, a balanced approach to tackle this problem is needed, which may take care of the concerns of both the parties and, at the same time, provide a reasonable and adequate solution. When the picture would become clearer after the requisite studies/research is undertaken, more stringent measures can be adopted in future if the situation so warrants.' Finally, it is observed in para 46 that, 'The writ petition be listed on December 11, 2018.'

All said and done, this landmark judgment will certainly profusely check the noise pollution as well as the air pollution caused by fire crackers and other pollutants. It is also made clear that once the picture becomes clear after the requisite studies/research is undertaken then more stringent measures would be adopted in future if the situation so warrants so that no one dares to break the rules made in this regard! It is certainly a must read judgment for everyone!