[2016] 11S.C.R.812

ARJUN GOPALAND ORS.

UNION OF INDIA & ORS.

I.A. No.4

(Writ Petition (Civil) No. 728of2015)

NOVEMBER 11,2016

[T. S. THAKUR, CJI, A. K. SIKRI ANDS. A. BOBDE, JJ.]

Constitution of India - Parts III, IV and !VA - Right to clean air - Writ petition u!Art.32 seeking emergent reliefs in relation to the extreme air pollution in the National Capital Region (NCR), owing to use of fireworks especially during festival/marriage season - Held: Fireworks release a deadly concoction of fumes into an almoststill winter air in Delhi, causing extreme air pollution during this time -Ambient air quality during the Diwali period shows that air pollution across the capital has reached record levels and has become intolerable - Severe air pollution in NCR is leading to multiple diseases and other extreme health related effects which leads to abject deprivation of a range of constitutionally embedded rights that the residents of NCR ought to have enjoyed - Thus, when the Air Quality Index in NCR is abysmally and threateningly severe, allowingfree trade in fireworks constitute a serious invasion of the Freedoms and Rights conferred on citizens by Part Ill of the Constitution - A just constitutional balance, must overwhelmingly prioritize the harmful effects of this hazardous air on present and future generations, over the immediate commercial constraints of the manufacturers and suppliers of fireworks - The balance must heavily tilt in favour of citizens in general - Therefore, in view of G grave air quality situation in NCR, Central Government directed to suspend the licenses to store and sell fireworks in NCR till further orders - Jn addition, Central Pollution Control Board (CPCB)

directed to study and prepare a report on harmful effects of materials used in the manufacture of fireworks - Fundamental Rights -

H Directive Principles of State Policy - Fundamental Duties - 812

Environment - Pollution -Air/noise pollution.

A Explosive Rules, 2008 - r.118, sub-rule (5) - Suspension!

Cancellation of licence - Held: sub-rule 5 confers on the Central Government a power to suspend or cancel a license if it considers so to do in public interest, even without giving an opportunity of being heard to the licensee - Thus, grave air quality situation is one B such case, where the licenses to store and sell fireworks in NCR can be suspended- Directed accordingly - Explosives Act, 1884.

MC.Mehta v. Union of India: 1998(6) SCC 60: 1998

(3) SCR 340 and 1998(9) SCC 589; M C. Mehta v.

Union oflndia 1998 (8) SCC 648; M C. Mehta v. Union C of India 1998(8) SCC 206 : 1998 (2) Suppl. SCR 24; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat

(2005) 8 SCC 534 : 2005 (4) Suppl. SCR 582; Vellore Citizens Welfare Forum v. Union of lndia, (1996) 5 SCC 647 : 1996 (5) Suppl. SCR 241 - referred to. o Case Law Reference

1998 (3) SCR 340 referred to Para 10

1998 (8) sec 648 referred to Para 10

1998 (2) Suppl. SCR 24 referred to ParalO

2005 (4) Suppl. SCR 582 referred to Para 18

1996 (5) Suppl. SCR 241 referred to Para 18

CIVIL ORIGINAL JURISDICTION: I. A. No. 4 in Writ Petition (C) No. 728of2015.

Under A1ticle 32 of the Constitution oflndia.

K. K. Venugopal, Gopal Subramania, Sr. Advs., Ms. Pooja Dhar, Zeeshan Diwan Ms. Sharda Deshmuk, Yijeth, Gagan Gupta, Rahul Gupta, Shekhar Gupta, Ms. Ira Gupta, Anantap Mishra, Yoginder Handoo, Sachin Mittal, Ms. Neha, Pravesh Ms. Pranchi, Mis. Manoj Swarup & Co., Advs. for the Petitioners.

N. K. Kaul, ASG .. C. A. Sund ram, Sr. Adv., Ms. Rohini Musa, Zaffar Inayat, Ms. Yimla Sinha, Ms. Binu Tamta, B. K. Prasad, Ms. Yibha Datta Makhija, Anubhav Kumar, Ms. Disha Yaish, S. WasimA. Qadri, Ajay Sharma, GS. Makkar, Vijay Panjwani, Yibhu Shanker Mishra,

A D.S. Mahra, M/s. Corporate Law Group, Chirag M. Shroff, Debojit Borkavati, Advs. for the Respondents.

The following Order of the Court was delivered

ORDER

I. The petitioners have approached this Court seeking emergent reliefs in relation to the extreme air pollution in the National Capital Region (hereinafter "NCR").

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 ofmalba and further steps towards environmental purity. We have, however, restricted this order to grant of interim relief in respect of fireworks.

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 propmtions 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.

The onset of winter and the festival/marriage season this year, presented to the residents ofNCR 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~· worst over Diwali weekend: Report.

G November 4, 2016, Hindustan Times]. The repmt indicates that 24 hour average of PM 2.5 levels in South Delhi in 2016 were 38% higher than on the Diwali night of2015. 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.

ARJUN GO PAL AND ORS. v. UNION OF INDIA & ORS.

Shockingly, on the morning of I .11.2016, Delhi woke up to an average PM 2.5 level of over 700 µg/m 3-some of the highest levels recorded the world over and 29 times above WHO standards. The rep01t fu1ther states that the WHO guideline for 24-hour average PM 2.5 levels is 25 µg/m 3

and with an annual average PM 2.5 level of 122 µg/m 3, Delhi's air is the worst among global megacities with dense populations. We have particularly refen-ed 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 ofa human hair. These pa1ticles primarily emanate from vehicle exhausts and other operations that involve the burning offuels such as wood, heating oil or coal, and of course, use of fire crackers.

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 ofa comprehensive set of parameters to monitor and asses the air quality. TheAQI considers eight pollutants (PM 10, PM2.5, NO,, SO,, CO, 0 3, 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

AQI Associated Health Im pacts

Good Minimal Impact (0-50) Satisfactory May cause minor breathing (51-100) discomfort to sensitive people.

Moderately polluted May cause breathing discomfort

(101-200) to people with lung disease such as asthma, and discomfort to people with heart disease, children and o Ider ad ult s.

A Poor May cause breathing discomfort to (20 l-300) people on prolonged exposure, and discomfort to people with heart disease Ve!)' Poor May cause respiratory illness to the B (30 l-400) people on prolonged exposure.

Effect may be more pronounced in neople with lung and heart diseases.

Severe May cause respiratory impact even (401-500) on healthy people, and serious health impacts on people with ltmgiheart c disease. The health impacts may be experienced even during light physical activity.

Table-2

D AQI Catt-gory, Pollutants and Health Breakpoints

AQI

PM10

PM,,

NO, o, CD so,

NH 3 Pb Category 24-hr 24-hr 24-hr 8-hr 8-hr 24-hr

24-IY 24-hr (Range) (mg/ mJ) E Jood (0-50) 0-50 0-30 0-40 0-50 0-1.0 0-40 0-200 0-0.5

Satisfactory 51-100 31-60 41-80 51-100 1.1-2.0 41-80 201-400 0.5-1.0 (51-100)

Modcrately 101-250 61-90

81 -180 101-168 2.1- IO 81-380 401-800 1.1-2.0 polluted (101-200) F

Poor 251-350 91-120 181-280 169-208 10-17 381-800 801-1200 2. 1-3.0 (201-300)

Very poor 351-430 121-250 281-400 209- 17-34 ~01-1600 1200- 3.1-3.5

G (301-400) 748* 1800

Severe 430+ 25o+ 40o+ 748+* 34+ 160o+ 180o+ 3.5+ (401-500)

Reports indicate that the AQI in Delhi was much above the H 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 1./-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 ofreports and data on this front.

The hazardous levels of air pollution in the last few weeks has spared very few from its ill effects. The life of the citizens ofNCR 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 ofunseen proportions.

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 lndia 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 theircounterpmts elsewhere. lt also found that more than 40 percent of the school children suffer from lung damage [see Landmark Study Lies Buried, 2.4.2015, The lndian Express]. We note with apprehension that there are nascent studies that suggest that pollution can lower children's 1.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].

A 9.

It has been brought to ournotice 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 B 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 ofNCR ought to have enjoyed. Needless to state, the grim situation of air quality adversely affected the right to education, work, health and ultimately, the D 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 MC. Mehta vs. Union of India: 1998(6) SCC 60 and 1998(9) SCC 589; MC. Mehta vs. Union of E India 1998 (8) SCC 648; MC. Mehta vs. Union of India 1998(8) sec 206].

11. During the festivalmarriage 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 F Diwali a Dangerous Festival for All, 4.11.2015, Down to Earth].

These fireworks release a deadly concoction offumes into an almoststill 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 G 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].

I-I

12. The latest report 1 by the Central Pollution Control Board A (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 oflndia, but it becomes much worse during Diwali. The concentrations of PM 2.5 and PM 10 which B are indicators of air qua I ity have shown considerable increase in the region. The following tables show the actual PM 2.5 and PM I 0 levels in Delhi during the Diwali 2016 period according to the CPCB report.

TABI .. E-3

PM 10 (in i1g/m3) LEVELS IN DELHI

PRE - DIWALI

DIWALI DAY

STATION 2015

20I6 2015 2016

ITO 166 203 531 878

PITAMPURA

I 6I 368 460 1297

JANAKPURI

I 19

2I3 554 902

PARIVESH 166 324 593 1183

BHAWAN

DILSHAD NA NA NA NA

GARDEN

SHADIPUR NA NA NA NA

NSJT, DWARKA NA NA NA NA

RKPURAM NA 346 NA 454

MANDIRMARG NA 236 NA 428

PUNJABI BAGH NA 236 NA 779

ANAND VIHAR NA 644 NA 1084

AVERAGE 153 321.25 534.5 875.62

1 CPCB Deepawali Monitoring Report. 2016

TABLE-4

PM 2.5 (in µg/m3) LEVELS IN DELIIl

PRE-DIWALI

DIWALI DAY

STATION 2015 2016 2015 2016

ITO NA l 04 NA 797

PITAMPURA 117 102 435 1238

JANAKPURl 84 96 459 842

PARIVESH 96 84 474 958

BHAWAN

DILSHAD GARDEN 78 119 192 602

SHADIPUR 108 62 121 474

NSIT, DWARKA 191 118 99 457

RKPURAM NA 144 NA 285

MANDIRMARG NA 92 NA 296

PUNJABI BAGH NA

I 08 NA 402

ANANDV!HAR NA 178 NA 430

AVERAGE 112.33 109.72 296.67 616.45

13. The CPCB report indicates that air pollution levels acro:; s the region rises by about 4-5 times on Diwali as a consequence ofburning of fireworks. Numerous accidents take place due to unregulated G 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 ofboth, air pollution and noise pollution. Something that is meant to be a celebration seems to be destroying the peace and H tranquility which is necessary for rest.

ARJUN GO PAL AND ORS. v. UNION OF INDIA & ORS. 821

14. Grievance was made before us about the thousands, even a 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 B behind the same kind ofair, 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 C of the Bench and the Bar also celebrate in the same way. But does that justify the continuance of this mannerof celebration, when the quality of air in the region is so poor and injurious to health and well bei:lg ar.d 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 o this question at this stage.

16. It is however ce1tain 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 ofnoise and air pollution and is causing immense harm to the lives and health ofcitizens, and allowing availability E of such fireworks or explosives constitutes a serious invasion of the Freedoms and Rights conferred on citizens by Part 1II of the Constitution oflndia. 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 ofa 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 G of the vast majority ofcitizens against the commercial interests ofa 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 H

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 ofbursting 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 oflndia but also on all citizens under Article 5 lA (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 ofrestrictions under Article 19(2)- ( 6) of the Constitution oflndia [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 oflndia, ( 1996) 5 sec 64 7' 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 futther orders. The mechanism of the law in this regard is clear. Rule 1181 of the Explosive Rules, 2008, framed under the Explosives Act, 1884 provides for the manner in which licenses issued under the Explosives Act to

G ' Suspension and revocation or cancellation of licence.--{ I) 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 I 974°J, a bond for keeping peace for good behaviour. (II) stand cancelled, ifthe no-objection certificate is cancelled by the authority issuing the same or District Magistrate or the State Government in accordance with rule H

115. (III) be liable to be suspended or cancelled by an order of the licensing authority

store and sell explosives could be suspended or cancelled. Sub-Rule(S) A thereof specifically confers on the Central Government a power to suspend or cancel a license ifit considt.:rs that it is in public interest. This provision also makes it clear that an opportunity to hear the licensee could be dispensed with ifthe Central Government considers that in public interest. This Court finds that the grave air quality situation in B NCR is one such case, v.-he1e this Court, can intervene and suspend the licenses to store and sell fireworks in the NCR. We direct the Central Governmentto:-

(i) Suspend all such licenses as permit sale of fireworks, wholesale and retail within the territory ofNCR. c

(ii) The suspension shall remain in force till fmtherorders 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 D prepare a repo11 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.

Divya Pandey Directions issued.

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 ofa licence shall be deemed lc1 have been served if sent by post to the 8ddress of1hc licensee entered in the licence. ( 4) The suspension of a licence shall not debar the ho!Jer of the licence from applying for the renewal. (5) Notwithstanding anything contained in sub-rule (I), 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 lice11'; ing 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 iaterest 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.