TaxTMI 
TaxTMI 
2017 (9) TMI 1533
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....n. Fireworks and air pollution in 2016 3. The prayer for a complete prohibition on the sale of fireworks due to pollution 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 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 other....
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....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 (NH3) µg/m^3 Annual* 24 hours** 100 400 100 400 • Chemiluminescence Indophenol blue method 9. Benzene (C6H6) µg/m^3 Annual* 05 05 • Gas chromatography based continuous analyzer Adsorption and Desorption followed by GC analysis 10. Benzo(α) Pyrene (BaP) - particulate phase only, ng/m^3 Annual* 01 01 - Solvent extraction followed by HPLC /GC analysis 11. Arsenic (As), µg/m^3 Annual* 06 06 - AAS/ICP method after sampling on EPM 2000 or equivalent filter paper 12. Nickel (Ni), µg/m^3 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....
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.... Application No.21 of 2014 and other connected matters in which it is recorded that there are seven major contributors of air pollution in the NCR and these are: 1. Construction activity and carriage of construction material. 2. Burning of Municipal Solid Waste and other waste. 3. Burning of agriculture residue. 4. Vehicular Pollution. 5. Dust on the roads. 6. Industrial and power house emission including fly-ash. 7. Emissions from Hot-Mix Plants and Stone Crushers. In other words, the submission of the applicant 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 for....
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....ry including Delhi. The bursting of fireworks around Diwali would have only a temporary and transitory impact and not any long lasting effect. Therefore, the bursting of fireworks around Diwali does not explain high PM2.5 levels in Delhi more than even a month after Diwali. 15. During the course of submissions it was pointed out that the Delhi Pollution Control Committee had issued a direction on 8th November, 2016 under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 banning the bursting of fireworks at all times except on religious occasions. It was submitted 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 che....
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....or study conducted at all with reference to pollution in the air caused by the bursting of these or other fireworks. We were informed (somewhat faintly) that this is really the job of the CPCB but the FDRC is willing to extend full cooperation to the CPCB in arriving at some definite standards. 20. It was also pointed out that this Court had passed an order on 18th July, 2005 in Noise Pollution (V), in Re. (2005) 5 SCC 733 to the following effect: (i) Firecrackers "174. 1. On a comparison of the two systems i.e. the present system of evaluating firecrackers on the basis of noise levels, and the other where the firecrackers shall be evaluated on 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 firec....
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....n 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 schools in 'anti-fire crackers' campaigns. Through these campaigns, participation of all stakeholders and eco-clubs is expected and schools are advised to organize innovative awareness programmes on the issue. 23. It is further stated that the Directorate of Education has advised all heads of schools to sensitize students and staff members about the ill-effects of bursting fireworks and to organize programmes for motivating students to "say no to crackers" and to utilize safe alternatives such as lights, flowers, paintings, etc. Additionally, heads of schools have been 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 ....
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.... 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 licences should be processed without delay. The parties may be advised to complete the forms wherever there are deficiencies. With these observations, the Special Leave Petitions are disposed of." 28. It is further submitted that permanent licences have been granted to 20 licensees as on date in Delhi and these have been suspended in view of the order passed by this Court on 11th November, 2016 (the corresponding figure for the NCR minus Delhi has not been given to us). 29. With regard to the grant of temporary licences, it is stated that in 2016 a total of 1073 applications were 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 ....
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.... 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 destroyed by the officials of the Joint Chief Controller of Explosives, West Circle, Mumbai, but the period of destruction and the manner of destruction has not been stated. The Explosives Act and Rules framed thereunder 35. The other perspective relates to licences issued for possession and sale of fireworks under the Explosives Act, 1884 and Rules framed thereunder and continuing the ban on the sale of fireworks or limiting the possession and sale of fireworks. For this purpose, it is necessary to appreciate the scheme of the Explosives Act and the Rules so that appropriate remedial steps can 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 Cla....
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....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 manufactured fireworks assembled at site, solely for the purpose of display. 39. Rule 2(24) defines "fireworks" as low hazard explosive comprising of any composition or device manufactured with a view to produce coloured fire or flame, light effect, sound effect, smoke effect (coloured or natural), or combination of such effects and includes fog-signals, fuses, rockets, shells, percussion caps. 40. Rule 2(25) defines "fireworks composition" as any chemical compound or mechanically mixed preparation of an explosive or inflammable substance that is used for the purpose of making manufactured fireworks and is not included in any 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 gi....
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.... 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"; (b) the name of authorised explosive; (c) the number if any of the Class and the Division including subdivision to which it belongs; (d) the safety distance category of explosive; (e) the name of the manufacturer; (f) identification number of the package; (g) the net weight of explosives; (h) gross weight of the package; (i) date of manufacture and batch number; (j) UN Classification and UN Identification number (for export packages); (k) in case of plastic explosives, the words "marking agent added as per International Civil Aviation Organisation Resolution A 27-8" referred in sub-clause (iv) of clause (c) under sub-rule (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 ....
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....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 fixed rigidly to the wall and a master switch shall be provided for each row of sheds. (5) Display of fireworks shall not be allowed within fifty metres of any shed. (6) In one cluster not more than fifty shops shall be permitted." 47. Chapter VIII of the Rules relates to the grant or refusal of approval, no objection certificate, licence, certificates, amendment, transfer and renewal of licences. Rule 99 therein provides that licences and certificates, for a specific purpose may be granted by the authorities, specified in Part 1 of Schedule IV of the Rules. 48. Rule 106 provides for the period of validity of the licence granted under the Rule while Rule 113 provides for documents to be furnished for approval and grant....
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....ctions 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 the ill-effects and health hazards of bursting fireworks. 56. There must be a concerted effort by the powers that be to ensure awareness and sensitization of the people in Delhi and NCR, particularly children, of the health hazards of indiscriminate use of fireworks. Unless urgent steps are taken, there could be an adverse impact on the health of children and this would be to nobody's benefit but to everybody's detriment. Anybody who lived in Delhi during Diwali in 2016 and soon thereafter would have experienced the choking effects of breathing in polluted air and the tremendous increase in the use and sale of face masks and air purifiers. In the absence of any concerted plan of action implemented by the governmental authorities, the....
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....ces 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 submissions on the issue of whether the use of strontium should be permitted in fireworks and the application for modification or vacation of the interim order, our attention was drawn to an article in the Swarajya magazine, by one Srikanth Ramakrishnan who reported that the National Environmental Engineering Research Institute (NEERI) along with researchers from an organization based in Austria, namely, International Institute for Applied Systems Analysis (IIAS) had conducted a study whose results revealed that the majority of the pollution in Delhi comes from outside the NCT of Delhi and from other areas in the NCR in Uttar Pradesh and Haryana. Therefore, no matter what air quality standards are adopted in Delhi, pollution would flow in f....
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....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 right to health of a worker and the human right to health of any other citizen of the country, particularly children who perhaps need more care and attention. It was held in paragraph 24 of the Report: "The right to health to a worker is an integral facet of meaningful right to life, to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes him of his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning for himself and his dependants, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect ....
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....lienable 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, so near the house of another, that the stench incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. A like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, 'sic utere tuo, ut alienum non leadas'; this therefore is an actionable nuisance. And on a similar principle a constant ringing of bells in one's immediate neighbourhood may be a nuisance. ... With regard to other corporeal hereditaments; it is a nuisance to stop or divert water that used to run to another's m....
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....tified 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 admittedly there is a huge quantity of fireworks in Delhi and in the NCR and the figure has been provided to us by the applicant. Similarly, there can be no doubt that the Delhi Police had issued a large number of temporary licences in 2016 and it would not be unreasonable to assume that around and during Diwali, there would have been some illegal temporary shops set up, whether known or not known to the police. We do not have the figures with regard to the NCR, but we assume that like in Delhi, a large number of temporary licences have been issued for the possession and sale of fireworks. Therefore, there is a need to regulate the availability and sale of fireworks in Delhi and the NCR. Directions 71. As mentioned above, the....
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....t 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 firewor....