TMI Blog2017 (9) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... osed 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 ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the air caused by the bursting of 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 g/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urs** 60 100 60 100 Gravimetric TOEM Beta attenuation 4. Particulate Matter (size less than 2.5 m) or PM2.5 g/m3 Annual* 24 hours** 40 60 40 60 Gravimetric TOEM Beta attenuation 5. Ozone (O 3 ) g/m 3 8 hours* * 1 hour** 100 180 100 180 UV photometric Chemiluminescence Chemical Method 6. Lead (Pb) g/m 3 Annual* 24 hours** 0.50 1.0 0.50 1.0 AAS/ICP method after sampling on EPM 2000 or equivalent filter paper ED-XRF using Teflon filter 7. Carbon Monoxide (CO) mg/m 3 8 hours* * 1 hour** 02 04 02 04 - Non Dispersive, Infra Red (NDIR) spectroscopy 8. Ammonia (NH 3 ) g/m 3 Annual* 24 hours** 100 400 100 400 Chemiluminescence Indophenol blu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport was to be submitted to this Court within a period of three months. Notwithstanding the aforesaid order the CPCB has not furnished the report. Application for modification of the interim order 8. Feeling aggrieved by the continuance of the interim order passed on 11th November, 2016 the concerned manufacturer and supplier of fireworks moved I.A. No.52448 of 2017 for modification/vacation of the said order. The applicant was supported by other manufacturers and suppliers. 9. It is stated in the application for modification or vacation of the interim order that there are 821 fireworks industries situated in and around Sivakasi and they produce and supply fireworks and sparklers all over the country for festivals such as Diwali, Dussehra, Christmas, Ramzan and other important ceremonies. It is further stated that these industries directly employ about 2 lakh people and in addition, about 3 lakhs are employed in ancillary and subsidiary industries connected with the production and supply of fireworks. 10. According to the applicant the National Green Tribunal (NGT) rendered a decision on 10th November, 2016 in Original Application No.21 of 2014 and other connected m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference was also made to a report in the New York Times by Geeta Anand on 2nd November, 2016 that an estimated 32 million tons of leftover straw from rice harvests were burnt in Punjab and Haryana, in spite of an NGT direction against this, and this led to plumes of smoke blackening the skies in the capital. 14. The applicant drew our attention to the poor air quality in Delhi on the days prior to Diwali 2016 and for more than a month thereafter. A comparison was drawn with the air quality recorded by the CPCB in Andhra Pradesh, Telangana, Karnataka and West Bengal to suggest that on some days prior to Diwali, the air quality was not particularly healthy in select cities in these States thereby suggesting that the air is generally polluted in different parts of the country and the bursting of fireworks may marginally add (if at all) to air pollution. In this context it was submitted that the bursting of fireworks takes place only for a couple of days around Diwali and other festive occasions and that cannot by itself result in a substantial deterioration in air quality all over the country including Delhi. The bursting of fireworks around Diwali would have only a temporary an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specialized Centre which has been operating now for quite some time. The functions and activities of the Centre are the following: 1. Research Development of eco friendly fireworks. 2. Testing of raw materials used in the manufacturing of fireworks. 3. Mechanisation of hazardous process in fireworks industry. 4. Testing of general performance and sound level of fireworks. 5. Rendering guidance for development of new products and standardization of general products. 6. Improvement of quality control and quality assurance. 7. Imparting training to supervisors and workers of fireworks factories. 8. Investigation of accidents. 19. It was brought to our notice that the FDRC has done some good work though related only to a few fireworks that are colloquially referred to as (a) Atom Bomb, (b) Chinese crackers (no reference to China at all), (c) Maroons and (d) Garland crackers. This study and research relates to the sound caused by the bursting of these fireworks and the light and colour emitted by them. No work has been done or study conducted at all with reference to pollution in the air caused by the bursting of these or other fireworks. We were informed ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing like not for sale in India or only for export to country AB and so on. But again these directions were confined to the sound (or noise), colour and light emitted by the bursting of fireworks and had no reference to air pollution. 21. We were also informed that this Court had passed an order on 16th October, 2015 in the present petition to the following effect: The Union Governments 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. In other words, directions have been issued by this Court from time to time to prevent air pollution around the time of Diwali and to make people aware of the health hazards of bursting fireworks. 22. An affidavit has been filed on behalf of the Government of NCT of Delhi on 26th August 2017 in which it is stated that school children are being informed about the hazards and ill-effects of indiscriminate bursting of fireworks by encouraging participation of school ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as follows : It appears that after this Court s order of 22nd October, 1993, the authorities have issued a circular dated 26.10.93 imposing certain conditions in regard to which the petitioners have no objection, save and except Condition ii(a) which provides that the premises to be used for sale of crackers, etc. shall be at a minimum distance of 15 mtrs. from any such premises used for storage of similar explosives and hazardous materials. After some discussion at the Bar, Mr. Lahiri, the learned counsel for the respondents, states that appropriate instructions will be issued so that temporary licences are not denied on the ground that the cracker shops are adjacent to each other. We have also indicated to Mr. Lahiri that what was intended was that if there is any shop adjacent to the shops in respect of which licence is sought wherein any other highly inflammable and combustible material is being sold, that may be a factor which may weigh with the authority. In view of the statement made by Mr. Lahiri, we do not think it necessary to issue any direction. The proceedings will stand terminated with liberty to mention if there is any difficulty. The application for temporary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an health and may cause problems with bone growth, skin rashes, skin problems and possibly lung cancer. The safe limits of strontium in the ambient air have not been mentioned by the CPCB. 33. On our asking, as a result of a submission made by learned counsel for the petitioners, the Union of India filed a Status Report on 31st August 2017 with regard to the import of fireworks from China. It is stated that the import of any explosives containing sulphur or sulphurate in admixture with any chlorate is banned vide notification GSR No. 64(E) dated 27th January, 1992 on the manufacture, possession, use, sale etc. of any explosives. However, an exception has been made for import in respect of the following: (a) in small quantities for scientific purposes; (b) for the purpose of manufacturing heads of matches; (c) for use in toy amorces (paper caps for toy pistols); or (d) in percussion caps for use of Railway Fog Signals. 34. It is further stated that Chinese origin fire crackers generally contain the above banned chemicals and are, therefore, prohibited from import. In this regard, it is stated that approximately 435 tons of Chinese origin fireworks have already been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latively innocuous in themselves and are not liable to explode violently or all at once, e.g., sparklers [Chinese crackers, serpents, etc.]. (6) Sub-division 2 of Division 2 of fireworks comprises high hazard fireworks which, in the opinion of Chief Controller, present a special hazard to a person, e.g., rockets, shells, maroons, wheels, barrages, fountains, illumination pieces, distress signals, pyrotechnic devices etc. (7) Sub-division 3 of Division 2 fireworks comprises such fireworks, which are assembled at site purely for the purpose of display. (8) Division 3 comprises any explosive contrivance required for the manufacture of manufactured fireworks, e.g., quick match fuse, micro cord fuse, etc. (9) Division 4 comprises manufactured fireworks for use of Armed Forces of the Union 37. Section 5 of the Act confers the power to make Rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosives. Quite naturally, the Rules framed under the Act also deal with fireworks. 38. For the present, we are concerned only with certain provisions of the Rules. Rule 2(19) defines display fireworks as a group of authorized manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orks.-such fireworks which emit colour or light and having sound level not exceeding 90 dB (AI) at 4 m distance from the point of bursting; (iii) Display Fireworks.- Any product of fireworks assembled at the site for the purpose of display including shell of diameter exceeding 25 mm, multiple shots or cake products of any diameter exceeding 25 nos., of shots in a product and lance network or other products as approved by the Chief Controller. 43. Rule 9(5) provides that possession of fireworks, not exceeding one hundred kilogram for own use and not for sale does not require any licence to be issued, notwithstanding anything contained in Rule 7 of the Rules. 44. Rule 15 relates to marking on explosives and packages. As per sub- Rule (i), (ii) and (iii) thereof, packages of fireworks shall contain the following markings in a conspicuous indelible character, by means of a stamping, embossing or painting. The relevant portion of this Rule reads thus: 15. Marking on explosives and packages.- (1) Marking on packages. - (i) The outer package shall be marked in conspicuous indelible character, by means of a stamping, embossing or painting with - (a) the word EXPLOSIVES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng thirty days may be granted by the licensing authority to a licensee for fireworks shop to possess one-third in excess of the licensed quantity on receipt of the appropriate fees. 46. Rule 84 of the Rules provides for temporary shops for possession and sale of fireworks during festivals and this reads: 84. Temporary shops for possession and sale of fireworks during festivals.-During festivals, the District Magistrate may issue temporary licences for possession and sale of fireworks in a temporary shop subject to the following conditions, namely :- (1) The fireworks shall be kept in a shed made of non-flammable material, which is closed and secured so as to prevent unauthorised persons having access thereto. (2) The sheds for possession and sale of fireworks shall be at a distance of at least three metres from each other and fifty metres from any protected work. (3) The sheds shall not face each other. (4) No oil burning lamps, gas lamps or naked lights shall be used in the shed or within the safety distance of the sheds. Electrical lights, if used, shall be fixed to the wall or ceiling and shall not be suspended by flexible wire. Switches for each shop shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down by the Government of NCT of Delhi to make children aware of the hazards of bursting fireworks and the existing awareness campaigns have been allowed to drift over the last one year. There is no information on the success or failure of these campaigns. 53. The response of the Government of NCT of Delhi is lethargic with the absence of any keenness to take proactive steps. This is disconcerting. It is high time that governmental authorities realize that the cost of ill health (particularly among children) is far greater in psycho-social terms than in financial and economic terms. The adage that prevention is better than cure is fully applicable in the present circumstances. 54. Similarly, the Delhi Police has issued directions that are difficult to enforce such as restricting the time during which fireworks can be burst. These are ad hoc measures that might be workable (if at all) only for the immediate future. We have not been informed of the impact of such directions or their implementation. 55. We must note that there has been no response from the States within the NCR giving the impression that air pollution is not a problem for the State Governments despite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the CPCB, is that very little or no attention seems to have been paid by any of the governmental authorities to the possible health hazards faced by children due to exposure to chemicals in fireworks. The governmental authorities need to realize their responsibility regarding the care and protection of the health of the people in Delhi and NCR and the importance of launching a sustained campaign to reduce air pollution to manageable limits during Diwali and the period immediately thereafter. The health of children should be of foremost concern in this regard. It is, as submitted, only a matter of a few days of intense pollution but even that is capable of having long term health effects. There are also short-term adverse consequences of breathing in polluted air and even this cannot be overlooked by the governmental authorities, particularly in the case of children. 59. On 31st July, 2017 we had prohibited the use of five chemicals and their compounds in the manufacture of fireworks. These constituents are antimony, lithium, mercury, arsenic and lead. We had left open the issue of use of strontium and its compounds in the manufacture of fireworks. During the course of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, scientists from the State Pollution Control Boards, the Fire Development and Research Centre, Sivakasi and Nagpur and the National Environment Engineering Research Institute (NEERI). 62. It was submitted by learned counsel for the petitioners that the poor air quality in November 2016 justified the passing of the interim order on 11th November, 2016 and there was no reason to vary that order. Virulent air pollution is a cause of concern and the only remedy to stop its ill effects is to continue the suspension of licences for the sale of fireworks in Delhi and in the NCR. It was submitted that if there is any doubt regarding the effect of bursting fireworks on air pollution, and in the absence of any standards to measure the same, the safer course would be to continue such suspension rather than risk the health of large sections of people in Delhi and the NCR, particularly children. 63. It was submitted by learned counsel for the petitioners that in Consumer Education Research Centre v. Union of India (1995) 3 SCC 42 it was held by this Court that the right to health, though of a worker, is a fundamental right. We see no real difference between the fundamental rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensuring human dignity. 65. Under the circumstances, there can be no doubt that the residents of the NCT of Delhi and indeed the entire NCR are entitled to breathe unpolluted air. They are entitled to the protection of their health from the adverse consequences of breathing in air polluted by the bursting of fireworks. 66. The right to breathe clean air is a recognized right under our Constitution. Learned counsel for the petitioners drew our attention to paragraphs 16 and 17 of Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 which read as follows: The constitutional and statutory provisions protect a person s right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment. It would be useful to quote a paragraph from Blackstone s commentaries on the Laws of England ( Commentaries on the Laws of England of Sir William Blackstone ) Vol. III, fourth edition published in 1876. Chapter XIII, Of Nuisance depicts the law on the subject in the following words: Also, if a person keeps his hogs, or other noisome animals, or allows filth to accumulate on his premises, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth-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 staf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossess 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. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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