National Green Tribunal (NGT): Coram of Justice Adarsh Kumar Goel (Chairperson) and Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members), while addressing the issue and considering the ban on the use of firecrackers observed that:
Celebration by crackers is for happiness. It is not to celebrate deaths and diseases. Happiness of few at the cost of life of others is not the value in Indian society which stands for happiness and well-being of all.
Remedial Action against pollution by use of firecrackers aggravating the menace of COVID-19 pandemic, posing a higher danger to the lives and health of the vulnerable groups.
Current Restrictions of Firecrackers
Bench noted that considering the potentially harmful consequences of burning crackers amidst COVID-19 pandemic situation and approaching winter, the State of Odisha, Rajasthan, Sikkim, NCT of Delhi (DPCC) and UT Chandigarh prohibited sale and use of firecrackers to protect the vulnerable groups like elderly, children, persons with co-morbidities and others.
Tribunal also placed reliance on the Technical Expert Committee that prohibition on firecrackers is a necessity to avoid the harmful health impact on account of the bursting of crackers, aggravating COVID during increased pollution.
Calcutta High Court’s decision in Anasua Bhattacharya v. State of W.B., WPA No. 1984 of 2020, was also noted wherein the Court has banned firecrackers.
State of Tamil Nadu
State of Tamil Nadu submitted that banning of crackers will affect the livelihood of the manufacturers and workers and the same was justified.
State of Punjab
Punjab claimed that air quality in its non-attainment cities was satisfactory and moderate during certain months.
Assam Pollution Control Board also stood by the stand of State of Punjab.
Amicus, Raj Panjwani submitted that air pollution increases the risk of mortality from COVID-19.
He referred to various articles and further added that Lung injuries, including the life-threatening acute respiratory distress syndrome and respiratory failure, as well as an acute coronary syndrome, arrhythmia, myocarditis, and heart failure, were shown to be clinically dominant, leading to critical complications of COVID-19.
Recent studies in China, the USA, as well as Europe, indicate that patients with cardiovascular risk factors or established cardiovascular disease and other comorbid conditions are predisposed to myocardial injury during the course of COVID-19. From the available information, it thus follows that air pollution-induced inflammation leads to greater vulnerability and less resiliency, and the pre-conditions increase the host vulnerability.
Nexus between Pollution and COVID-19
Amicus added that with Covid-19, even reduced pollution becomes hazardous. What may be permitted in normal time can also not be permitted during Covid-19. That is the reason for the ban by the States which was never considered without Covid. The States have gone by expert advice in doing so. There is enough material indicting nexus between the pollution and the Covid and that the increased pollution will increase Covid impact.
Tribunal: Decision and Analysis
Bench stated that the Supreme Court’s decision in regard to ‘Firecrackers’ does not involve the impact of COVID-19, due to which it makes necessary for the tribunal to proceed further.
Financial loss or loss of employment cannot be a consideration not to remedy the situation affecting lives and health of the citizens by pollution, aggravated by Covid.
Further, the bench emphasised that
“while it is true that any restriction on the sale and use of crackers may affect the business and employment, at the same time if the use of crakers results in pollution and affects life and health of the citizens and the environment, such use may have to be restricted/prohibited to effectuate ‘Sustainable Development’ principle of which ‘Precautionary’ principle is a part, as per the mandate of Section 20 read with Section 15 of the National Green Tribunal Act, 2010.”
In view of the above stated, Tribunal stated that if authorities do no exercise its jurisdiction, the Tribunal has to exercise its jurisdiction.
Right of trade is not absolute and is to be subject to the ‘Sustainable Development’ principle, which is part of Right to life.
Relevant SC directions and Observations
In Arjun Gopal v. Union of India, (2017) 1 SCC 412, it was noted that air quality standards in Delhi are from ‘poor’ to ‘severe’ during winter resulting in the potential of diseases. Directions that were issued in the said decision were:
- Suspend all such licenses as permit sale of fireworks, wholesale and retail, within the territory of NCR.
- The suspension shall remain in force till further orders of this Court.
- No such licenses shall be granted or renewed till further orders.
The above directions were modified in the following Orders:
Arjun Gopal v. Union of India, (2017) 16 SCC 280, It was noted that, the health of the people has to take precedence over any commercial or other interests, graded regulation of firecrackers was necessary which would eventually result in prohibition. Accordingly, directions were issued to restrict the temporary licenses to 50%, pending further consideration.
Supreme Court in Arjun Gopal v. Union of India, (2019) 13 SCC 523, while banning certain categories of firecrackers and directing regulation of the remaining, directed that on Diwali days or other festivals, firecrackers will be used strictly between 8 p.m to 10 pm only with different timings for some other festivals.
In the Supreme Court’s decision, the scope of the precautionary principle, even in absence of scientific certainty, was considered, apart from the contention of economic considerations, as a bar to remedy pollution.
In view of the data of CPCB, Tribunal stated that it is not possible to accept that in the State of Punjab ar quality is satisfactory or moderate everywhere in November. Bench stated that it needs a uniform yardstick needs to be applied based on objective criteria of air quality in the context of COVID-19 pandemic and associated adverse health impacts.
While bursting of green firecrackers for the duration of two hours on festival days may be allowed in areas with moderate and below air quality, where not otherwise prohibited by authorities/Courts, there has to be total ban where air quality is poor and above.
With regard to the submission of States to not impose the ban of firecrackers or green crackers on festival days for 2 hours is justified where air quality is moderate and below but not where air quality is poor and above which may result in deaths and diseases.
Bench stated that to States/UTs falling in NCR and where 122 non-attainment cities are located, tribunal proposes to issue directions in rem applicable to all States/UTs.
Since air pollution aggravates COVID-19, not only crackers are to be banned/restricted depending upon air quality, all States/UTs, PCBs/PCCs must take special initiative to contain air pollution by regulating all other sources to pollution, particularly during COVID-19.
Conclusion & Directions
Tribunal in view of the above discussion held that a case is made out for issuing directions for banning the sale and use of firecrackers during November 9 to 30 in areas where air quality is ‘poor’, ‘very poor’ and ‘severe’.
Following are directions:
- Total Ban against sale or use of all kinds of firecrackers in the NCR from midnight of November 9-10, 2020 to the midnight of November 30-December 1, 2020, to be reviewed thereafter.
- Direction (i) will also apply to all cities/towns in the country where the average of ambient air quality during November (as per available data of last year) fall under ‘poor’ and above category.
- Cities/Towns where air quality is ‘moderate’ or below, only green crackers be sold and the timings for use and bursting of crackers be restricted to two hours during festivals, like Diwali, Chatt, New Year/Christmas, etc. as may be specified by the State concerned. If nothing is specified by the State, timing will be 8 to 10 pm on Diwali and Gurupurb, 6 am to 8 am on Chatt and 11.55 pm to 12.30 am during Christmas and New year eve (which have yet to come and do not fall in November but if the ban continues) and not otherwise.
- At other places, ban/restrictions are optional for the authorities but if there are more stringent measures under orders of the authorities, the same will prevail.
- All States/UTs/PCBs/PCCs may initiate special drives to contain air pollution from all sources in view of the potential of aggravation of Covid-19.
- States/UTs Chief Secretaries and DGPs may issue and circulate an appropriate order in above terms with appropriate enforcement guidelines to all the District Magistrates and Superintendents of police, PCBs/PCCs.
- CPCB and the State PCBs/PCCs may regularly monitor the air quality during this period which may be uploaded on their respective websites.
Matter to be listed on 1-12-2020.[Tribunal on its own Motion v. Ministry of Environment, Forest & Climate Change; 2020 SCC OnLine NGT 860; decided on 09-11-2020]