ARJUN GOPAL AND ORS. Vs. UNION OF INDIA AND ORS.
Supreme Court of India (Full Bench (FB)- Three Judge)
Writ Petition (Civil), 728 of 2015, Judgment Date: Nov 11, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NO.4
IN
WRIT PETITION (CIVIL) No.728 OF 2015
ARJUN GOPAL AND ORS. .. PETITIONER (S)
VERSUS
UNION OF INDIA & ORS. ..RESPONDENT (S)
1 ORDER
The petitioners have approached this Court seeking emergent reliefs
in relation to the extreme air pollution in the National Capital Region
(hereinafter “NCR”).
2. We have heard Mr. K.K. Venugopal and Ms. Vibha Datta Makhija,
learned senior counsel for the petitioners and Mr. C.A. Sundaram, learned
senior counsel for the respondent. The petitioner has sought wide ranging
reliefs against the use of fireworks (including fire crackers), prevention
of harmful crop burning, dumping of malba and further steps towards
environmental purity. We have, however, restricted this order to grant of
interim relief in respect of fireworks.
3. The primary contention of the petitioners is that the use of
fireworks in the NCR has posed a serious problem to the inhability of the
air during Diwali and the wedding season. According to the petitioners,
the problem has reached proportions in the NCR which are not tolerable and
are causing immense harm to the peace, well-being and health both physical
and mental. In fairness, we must say that there was no serious opposition
to the impact of fireworks on the ambient air and the unhealthy effects of
fireworks on it. The opposition was mainly about the total banning of
fireworks in all circumstances.
4. The onset of winter and the festival/marriage season this year,
presented to the residents of NCR severe concerns regarding the air quality
standards. According to reports, the air quality standards in early
November of this year were the worst in the world. It is reported that the
PM 2.5 levels recorded where “beyond scale” values [see India’s air quality
among world’s worst over Diwali weekend: Report. November 4, 2016,
Hindustan Times]. The report indicates that 24 hour average of PM 2.5
levels in South Delhi in 2016 were 38% higher than on the Diwali night of
2015. The day after Diwali, these levels were twice as high as the day
after Diwali in 2015, crossing 650 µg/m³, which is 26 times above the WHO’s
standards or levels considered safe. Shockingly, on the morning of
1.11.2016, Delhi woke up to an average PM 2.5 level of over 700 µg/m³–some
of the highest levels recorded the world over and 29 times above WHO
standards. The report further states that the WHO guideline for 24-hour
average PM 2.5 levels is 25 µg/m³ and with an annual average PM 2.5 level
of 122 µg/m³, Delhi’s air is the worst among global megacities with dense
populations. We have particularly referred to the PM 2.5 levels because of
the extreme effects and near invisibility of this type of particulate
matter. PM 2.5 or particulate matter 2.5 (PM2.5), refers to tiny particles
or droplets in the air that are two and one half microns or less in width.
It may be noted that the widths of the larger particles in the PM2.5 size
range would be about thirty times smaller than that of a human hair. These
particles primarily emanate from vehicle exhausts and other operations that
involve the burning of fuels such as wood, heating oil or coal, and of
course, use of fire crackers.
5. In India, air quality standards are measured in terms of the
Air Quality Index (hereainafter ‘AQI’). The AQI was launched in India on
17.10.2014 by the Ministry of Environment and Forests. According to the
press release of the Press information Bureau of the same date, it consists
of a comprehensive set of parameters to monitor and asses the air quality.
The AQI considers eight pollutants (PM10, PM2.5, NO2, SO2, CO, O3, NH3, and
Pb), and based on the levels of these pollutants six categories of AQI
ranging from Good to Severe have been prescribed. The index also suggests
the health effects of the pollution category wise. The gradation of AQI
and its health impact is extracted below:
Table -1
Table -2
|AQI Category, Pollutants and Health Breakpoints |
|AQI Category|PM10 |PM2.5 |NO2 |O3 |CO |SO2 |NH3 |Pb |
|(Range) |24-hr|24-hr |24-hr |8-hr |8-hr |24-hr |24-hr |24-hr|
| | | | | |(mg/m3) | | | |
|Good (0-50) |0-50 |0-30 |0-40 |0-50 |0-1.0 |0-40 |0-200 |0-0.5|
|Satisfactory|51-10|31-60 |41-80 |51-100 |1.1-2.0 |41-80 |201-400|0.5 |
|(51-100) |0 | | | | | | |–1.0 |
|Moderately |101-2|61-90 |81-180|101-168|2.1- 10 |81-380 |401-800|1.1-2|
|polluted |50 | | | | | | |.0 |
|(101-200) | | | | | | | | |
|Poor |251-3|91-120|181-28|169-208|10-17 |381-800|801-120|2.1-3|
|(201-300) |50 | |0 | | | |0 |.0 |
|Very poor |351-4|121-25|281-40|209-748|17-34 |801-160|1200-18|3.1-3|
|(301-400) |30 |0 |0 |* | |0 |00 |.5 |
|Severe |430 +|250+ |400+ |748+* |34+ |1600+ |1800+ |3.5+ |
|(401-500) | | | | | | | | |
6. Reports indicate that the AQI in Delhi was much above the
severe standard, shooting off the AQI 500 mark on many days this November.
On the day after Diwali, it was more than 14 times the safe limits [see
Delhi’s pollution levels peaks at 14-16 times safe limits, 31.10.2016, The
Hindu]. The adverse health effects of these hazardous levels of pollution
are only too evident from the table given above. We do not intend to refer
to the multiplicity of reports and data on this front.
7. The hazardous levels of air pollution in the last few weeks has
spared very few from its ill effects. The life of the citizens of NCR was
brought to a virtual standstill, not to speak about the plight of the
thousands of mute flora and fauna in NCR. Schools were declared shut,
denizens of the city advised to stay indoors, construction activities
stopped, power stations shut and ban imposed on burning of garbage and
agricultural waste. The fall in air quality has had a significant impact on
people’s lifestyle as well. The rising costs to protect against air
pollution are substantial. It has come to our notice that people are
queuing up to purchase protective masks and air purification systems in the
wake of dense smog all over the NCR. In short, the capital was ‘smogged’
into an environmental emergency of unseen proportions.
8. The adverse effects of these extreme levels of air pollution
spare no one- the young, the old, the infirm and even the future
generations. A study of the data of the Global Health Depository of the
World Health Organization reveals that India has the world’s highest death
rate from chronic respiratory diseases and that about 1.5 million people in
India die annually due to indoor and outdoor pollution [ see Delhi Wakes up
to an Air Pollution Problem It Cannot Ignore, 15.2.2015, The New York
Times]. The Kolkata-based Chittaranjan National Cancer Institute (CNCI), in
a study commissioned and handed over to the Central Pollution Control
Board, found that key indicators of respiratory health, lung function to
palpitation, vision to blood pressure, of children in Delhi, between four
and 17 years of age, were worse off than their counterparts elsewhere. It
also found that more than 40 percent of the school children suffer from
lung damage [see Landmark Study Lies Buried, 2.4.2015, The Indian Express].
We note with apprehension that there are nascent studies that suggest that
pollution can lower children’s I.Q., hurt their test scores and increase
the risks of autism, epilepsy, diabetes and even adult-onset diseases
like multiple sclerosis[ see Holding Your Breath in India, 29.5.2015, The
New York Times].
9. It has been brought to our notice that the severe air pollution
in the NCR is leading to multiple diseases and other health related issues
amongst the people. It is said that the increase in respiratory diseases
like asthma, lung cancer, bronchitis etc. is primarily attributable to the
worsening air quality in the NCR. The damage being caused to people’s lungs
is said to be irreversible. Other health related issues like allergies,
temporary deafness are also on the rise. Various experts have pointed
towards multiple adverse effects of air pollution on human health like
premature deaths, rise in mortality rates, palpitation, loss of vision,
arthritis, heart ailments, cancer, etc.
10. When we refer to these extreme effects, we are not merely
referring to the inconvenience caused to people, but to abject deprivation
of a range of constitutionally embedded rights that the residents of NCR
ought to have enjoyed. Needless to state, the grim situation of air
quality adversely affected the right to education, work, health and
ultimately, the right to life of the citizens, and this Court is
constitutionally bound to address their grave concerns. May we remind
ourselves, that this is not the first time that this court was impelled
into ensuring clean air for the citizens of the capital region [see M.C.
Mehta vs. Union of India: 1998(6) SCC 60 and 1998(9) SCC 589; M.C. Mehta
vs. Union of India 1998 (8) SCC 648; M.C. Mehta vs. Union of India 1998(8)
SCC 206].
11. During the festival- marriage season in Delhi, that is between
October and February, a report suggests that more than 40 recognized and
other dangerous forms of firecrackers are used [see Fireworks make Diwali a
Dangerous Festival for All, 4.11.2015, Down to Earth]. These fireworks
release a deadly concoction of fumes into an almost-still winter air in
Delhi, causing extreme air pollution during this time. These fire crackers
apart from causing acute air pollution also cause severe noise pollution. A
study suggests that fireworks emit fine particles of various elements like
Copper, Barium, Strontium, Magnesium and Potassium, all of which are used
to provide the colour and glitter to fireworks [ see The Impact of
Fireworks on Airborne Particles, Atmospheric Environment, Volume 42, Issue
6, 2008, pages 1121-1132].
12. The latest report[1] by the Central Pollution Control Board
(CPCB) on the ambient air quality during the Diwali period shows that air
pollution across the capital has reached record levels and has become
intolerable. We find that the air quality in NCR is mostly poor as per the
standards prescribed by the Government of India, but it becomes much worse
during Diwali. The concentrations of PM 2.5 and PM 10 which are indicators
of air quality have shown considerable increase in the region. The
following tables show the actual PM 2.5 and PM 10 levels in Delhi during
the Diwali 2016 period according to the CPCB report.
TABLE - 3
|PM 10 (in µg/m³) LEVELS IN DELHI |
| |PRE - DIWALI |DIWALI DAY |
|STATION | | |
| |2015 |2016 |2015 |2016 |
|ITO |166 |203 |531 |878 |
|PITAMPURA |161 |368 |460 |1297 |
|JANAKPURI |119 |213 |554 |902 |
|PARIVESH BHAWAN |166 |324 |593 |1183 |
|DILSHAD GARDEN |NA |NA |NA |NA |
|SHADIPUR |NA |NA |NA |NA |
|NSIT, DWARKA |NA |NA |NA |NA |
|R K PURAM |NA |346 |NA |454 |
|MANDIR MARG |NA |236 |NA |428 |
|PUNJABI BAGH |NA |236 |NA |779 |
|ANAND VIHAR |NA |644 |NA |1084 |
|AVERAGE |153 |321.25 |534.5 |875.62 |
TABLE - 4
|PM 2.5 (in µg/m³) LEVELS IN DELHI |
| |PRE - DIWALI |DIWALI DAY |
|STATION | | |
| |2015 |2016 |2015 |2016 |
|ITO |NA |104 |NA |797 |
|PITAMPURA |117 |102 |435 |1238 |
|JANAKPURI |84 |96 |459 |842 |
|PARIVESH BHAWAN |96 |84 |474 |958 |
|DILSHAD GARDEN |78 |119 |192 |602 |
|SHADIPUR |108 |62 |121 |474 |
|NSIT, DWARKA |191 |118 |99 |457 |
|R K PURAM |NA |144 |NA |285 |
|MANDIR MARG |NA |92 |NA |296 |
|PUNJABI BAGH |NA |108 |NA |402 |
|ANAND VIHAR |NA |178 |NA |430 |
|AVERAGE |112.33 |109.72 |296.67 |616.45 |
13. The CPCB report indicates that air pollution levels across the
region rises by about 4–5 times on Diwali as a consequence of burning of
fireworks. Numerous accidents take place due to unregulated manufacture,
storage and transport of fireworks resulting in substantial damage to life
and property. Further, unsupervised bursting of fireworks also leads to
many accidents where unfortunately most victims are children. They are a
source of both, air pollution and noise pollution. Something that is meant
to be a celebration seems to be destroying the peace and tranquility which
is necessary for rest.
14. Grievance was made before us about the thousands, even a lakh
of crackers on one string going off at night; and several such strings
going off in the neighborhood, totally unmindful of the aged, the tender
and the ill. All this firework, even that which is not noisy, leaves the
ambient air thick with noxious particles. Marriage processions, barats,
passing through an area generated the same kind of noise and leave behind
the same kind of air, by the use of fire crackers. It is not necessary to
speculate if those who suffer send their good wishes for the event, or to
those ‘celebrating’ Diwali in this way.
15. We are conscious that we are dealing with time honoured ways of
celebrating certain occasions. The petitioners and every member of the
Bench and the Bar also celebrate in the same way. But does that justify the
continuance of this manner of celebration, when the quality of air in the
region is so poor and injurious to health and well being and is destroying
essential components of the freedom to live a healthy life? In any case
till the quality of air improves we do not pronounce finally on this
question at this stage.
16. It is however certain that, now, when the Air Quality Index in
the NCR is abysmally and threateningly severe, allowing free trade in
fireworks which is a major source of noise and air pollution and is causing
immense harm to the lives and health of citizens, and allowing availability
of such fireworks or explosives constitutes a serious invasion of the
Freedoms and Rights conferred on citizens by Part III of the Constitution
of India. Such an invasion is all the more deleterious towards the rights
and freedom of the poor and the underprivileged who must breathe such air
without any means of protecting themselves.
17. There is no doubt that protecting citizens (including those who
use fireworks) by making these unavailable in the market would require the
suspension of trade of a miniscule section of the population. Maybe they
have acquired stocks for sale or obtained credit for their business. We are
however of the view, that balancing the vital interests of the vast
majority of citizens against the commercial interests of a few, the balance
must heavily tilt in favour of citizens in general.
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, 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. Secondly, this court recognizes that the duty to
ensure a healthy environment not only falls on the State in terms of
Article 48-A of the Constitution of India but also on all citizens under
Article 51A (g) of the Constitution. This Court has previously held that
fundamental duties in Part IV A of the Constitution could be a guiding
factor in testing the reasonableness of restrictions under Article 19(2)-
(6) of the Constitution of India [ See State of Gujarat v. Mirzapur Moti
Kureshi Kassab Jamat, (2005) 8 SCC 534; para 58] The principle of inter-
generational equity, recognized and applied by this Court in a number of
decisions, beaconing us to the health and needs of the future generation,
also favours the issuance of interim directions. Lastly, the precautionary
principle, affirmed by this court in Vellore Citizens Welfare Forum v.
Union of India, (1996) 5 SCC 647, 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.
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[2] 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 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.
……………….…..........…..CJI
[ T.S. THAKUR ]
.......................………J.
[ A.K. SIKRI ]
.......................………J.
[ S.A. BOBDE ]
NEW DELHI,
NOVEMBER 11, 2016
-----------------------
[1] CPCB Deepawali Monitoring Report, 2016
[2] . Suspension and revocation or cancellation of licence.—(1) Every
licence granted under these rules shall— (I) stand cancelled, if— (a) the
licensee has ceased to have any right for the lawful possession over the
licensed premises; (b) the licensee is convicted and sentenced under any
criminal offences or ordered to execute under Chapter VIII of the Code of
Criminal Procedure, 1973 (2 of 1974), a bond for keeping peace for good
behaviour. (II) stand cancelled, if the no-objection certificate is
cancelled by the authority issuing the same or District Magistrate or the
State Government in accordance with rule 115. (III) be liable to be
suspended or cancelled by an order of the licensing authority for any
contravention of the Act or these rules or of any condition contained in
such licence, or by order of the Central Government, if it is satisfied
that there are sufficient grounds for doing so: Provided that before
suspending or cancelling a licence under this rule, the holder of the
licence shall be given an opportunity of being heard. (2) The suspension or
cancellation shall take effect from the date specified therein. (3) An
order of suspension or revocation of a licence shall be deemed to have been
served if sent by post to the address of the licensee entered in the
licence. (4) The suspension of a licence shall not debar the holder of the
licence from applying for the renewal. (5) Notwithstanding anything
contained in sub-rule (1), an opportunity of being heard may not be given
to the holder of the licence before his licence is suspended or cancelled
in cases—(i) where the licence is suspended by a licensing authority as an
interim measure for violation of any of the provisions of the Act or these
rules or of any conditions contained in such licence and in his opinion
such violation is likely to cause imminent danger to the public: Provided
that where a licence is so suspended, the licensing authority shall give
the holder of the licence an opportunity of being heard before the order of
suspension is confirmed; or (ii) where the licence is suspended or
cancelled by the Central Government, if that Government considers that in
the public interest or in the interest of the security of the State, such
opportunity should not be given. (6) A licensing authority or the Central
Government suspending or cancelling a licence shall record its reason for
so doing in writing.
-----------------------
|AQI |Associated Health Impacts |
|Good |Minimal Impact |
|(0–50) | |
|Satisfactory |May cause minor breathing discomfort to sensitive |
|(51–100) |people. |
|Moderately |May cause breathing discomfort to people with lung|
|polluted |disease such as asthma, and discomfort to people |
|(101–200) |with heart disease, children and older adults. |
|Poor |May cause breathing discomfort to people on |
|(201–300) |prolonged exposure, and discomfort to people with |
| |heart disease |
|Very Poor |May cause respiratory illness to the people on |
|(301–400) |prolonged exposure. Effect may be more pronounced |
| |in people with lung and heart diseases. |
|Severe |May cause respiratory impact even on healthy |
|(401-500) |people, and serious health impacts on people with |
| |lung/heart disease. The health impacts may be |
| |experienced even during light physical activity. |
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