Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

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.

Issue

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

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 412it 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:

  1. Suspend all such licenses as permit sale of fireworks, wholesale and retail, within the territory of NCR.
  2. The suspension shall remain in force till further orders of this Court.
  3. 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.

Green Firecrackers

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]


Also Read:

NGT | Whether use of firecrackers be banned in Delhi-NCR from 7th November to 30th November, 2020 in public interest? Tribunal to decide

Cal HC | No sale or purchase of firecrackers in any form: State to ensure that there is no use of firecrackers during Diwali celebrations & Kali Puja

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., directed the State to ensure that there is no use of firecrackers at all during Diwali celebrations and Kali Puja.

The instant application was filed in regard to the upcoming celebrations. There was another application by an unregistered body that could be loosely called the firecrackers’ association.

Verbal Advisories | Firecrackers

State has issued verbal advisories pertaining to firecrackers during Kali Puja and Diwali celebrations. Guidelines were framed regarding Kali Puja pandals.

State had made an appeal for all kinds of firecrackers not to be used this year in view of pandemic and the virus that attacks the respiratory system.

Further, the State submitted that the matter pertaining to firecrackers was still pending before the National Green Tribunal and orders have been reserved. In view of the same, State suggested that in the light of such specialised body having taken up the matter pertaining to firecrackers all over the country, such aspect may be left to the Tribunal and not gone into in the present proceedings.

In addition to the Kali Puja, Jagadhatri Puja and Kartick Puja pandals, the petitioners referred to the congregations on the day of Kali Puja at temples all over the State. The petitioners sought appropriate directions for the maintenance of Covid protocol in temples and for crowding not to be allowed within close spaces.

In view of notifications issued from time to time by the Centre that relaxations have been made for open-air congregations, though the wearing of face-masks or the use of face-shields has been made mandatory. Stricter protocols are required for gatherings indoors.

Since public Kali pujas are many more than Durga pujas and some of the pandals are much smaller, the guidelines issued for Durga Puja pandals are somewhat modified as follows:

(i) All pandals will continue to be No-Entry Zones, including an area of five-metre beyond the pandals on all the open sides. Only dhakis will be permitted to occupy the space beyond the pandals and within the five-metre zone thereafter. Except for dhakis, the five-metre zone has to be kept completely free at all times.

(ii) For the smaller pandals, where the covered area excluding the dais is upto 150 square metre, only 10 persons may be in such covered area at any given point of time. For pandals with a covered area between 150 square metre and 300 square metre excluding the dais, the number of persons at any point of time may be 15. For bigger pandals, in excess of 300 square metre in area excluding the dais, a maximum of 45 persons can be within the pandals at any given point of time.

(iii) Sanitisers must be available at the puja pandals and wearing of masks will be mandatory within and around the pandal area. The distancing norm has to be maintained at all times both within the pandals and in an around the pandals.

(iv) Immersions should be low-key affairs and processions for such purpose will not be permitted. The use of bands and lights at the time of immersion will also remain prohibited. It will be open to the local police to provide for staggered timings so that the immersion ghats are not overcrowded.

Firecrackers

Bench stated that the State should ensure that there is no use or display or bursting of firecrackers at all during the Kali puja and Diwali celebrations. Only wax or oil-based diyas would suffice, for the greater good of the citizens and in the larger public interest.

“…direction as to firecrackers will be effective all over the State and will cover not only the Kali Puja and Diwali celebrations, but also the Chhat Puja, Jagadhatri Puja and Guru Nanak’s birthday celebrations thereafter.”

Court directed the police to ensure that there is no sale or purchase of firecrackers in any form in the State between now and the end of the month and any kind of like material which has the potential to pollute the air shall be confiscated.

State will ensure that no firecrackers of any kind are brought into the State, except for immediate transit to another State.

As far as the application by the firecrackers’ association is concerned, it will be for the State to consider whether appropriate compensation or other measures can be taken.

For the greater good, a small number of persons involved in the firecracker business may have to suffer losses. The overwhelming public interest cannot be compromised.

Bench also stated that local police should ensure that COVID protocol is maintained in the temples including the distancing norms.

Local administration and police will ensure that there is no overcrowding within the temple precincts or outside.

For the other aspects, particularly with regard to the Chhat Puja and the kind of processions that may be allowed for Chhat Puja celebrations, the matter has been posted for 10-11-2020. [Anasua Bhattacharya v. State of W.B., 2020 SCC OnLine Cal 2056, decided on 05-11-2020]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members), issue notice to consider whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Issue raised in the present application is in regard to the remedial action against pollution by the use of firecrackers against pollution by use of firecrackers in NCR during the time air quality is unsatisfactory with potential of severity of COVID-19 pandemic.

Present application has been filed in reference to the statement by Delhi’s Health Minister and Union Health Minister that during the festive season there will be rise on COVID cases due to air pollution. Further, it was added that the use of ‘green crackers’ won’t be a remedial option in view of the present situation.

“The smoke will choke and may create gas chamber like situation. It will lead to poor visibility, hazy conditions and asphyxia.”

Supreme Court had considered the issue in regard to firecrackers in light of right to clean environment in the.

In Arjun Gopal v. Union of India(2017) 1 SCC 412it 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:

  1. Suspend all such licenses as permit sale of fireworks, wholesale and retail, within the territory of NCR.
  2. The suspension shall remain in force till further orders of this Court.
  3. No such licenses shall be granted or renewed till further 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. to 10 pm only with different timings for some other festivals.

In Supreme Court’s decision of Noise Pollution (V), In Re., (2005) 5 SCC 733, directions were issued with regard to the noise level of the crackers.

It has been stated in the present application that the above-cited Supreme Court decisions do not address the COVID-19 situation wherein the adverse effect may be so that the number of deaths may increase along with the number of diseases.

It has been added that several reports in public domain state that the air quality of Delhi is deteriorating and further deterioration may give rise to an increase in COVID cases.

Since the firecrackers emit poisonous gases like SO2, NOX, CO as well as the metal besides creating noise. In the given climatic conditions, this may result in respiratory/pulmonary diseases, diabetic, hypertension and other diseases.

Experts have also opined on clear nexus of air pollution with COVID-19. With increased air pollution, virus can cause more damage.

On noting the above stated, Tribunal issued notice to the MoEF&CC, CPCB, DPCC, Police Commissioner, Delhi, Governments of Delhi, Haryana, Uttar Pradesh and Rajasthan on the question whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Bench requested Raj Panjwani, Senior Advocate along with Advocate Shibani Ghosh to assist the Tribunal as amicus.

Matter to be listed don 05-11-2020.[Indian Social Responsibility Network v. Ministry of Environment, Forests & Climate Change;  2020 SCC OnLine NGT 858, decided on 02-11-2020]

Case BriefsSupreme Court

Supreme Court: The 2-Judge Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. modified the Arjun Gopal v. Union of India, 2018 SCC OnLine SC 2118, decision by modifying the time span of bursting firecrackers in southern states.

The Bench vide order dated 30.10.2018 stated that the time mentioned of bursting the firecrackers during ‘Diwali’ as mentioned in the earlier judgment of this Court was 8.00 p.m till 10.00 p.m which is now to be modified for Tamil Nadu, Puducherry and other ‘Southern States’ to 2 hours in the entire day.

The stated two hours slot has to be decided by the state government.

The Supreme Court vide order dated 31-10-2018 stated:

After hearing the counsel for the parties, we are inclined to give following clarifications:

  1. (a)  Henceforth, production of crackers with reduced emission(improved crackers and green crackers) is permitted, as already directed in order dated October 23, 2018. It would also mean that barium salts in the manufacture of firecrackers will not be used.
  2. (b)  In direction No. (ii) where sale of crackers other than reduced emission is banned, it is clarified that this sale is banned in Delhi and NCR. Thus, direction No. (viii) would continue to operate. In other areas, the crackers which have already been produced would be allowed to be sold for this Diwali and other festivals and occasions.
  3. (c)  Insofar as Direction No. (xiv) is concerned, in respect of Tamil Nadu and Union Territory of Puducherry and other Southern States are concerned, this Court has already modified the said direction vide order dated 30.10.2018. We further clarify that on the occasion of Gurpurab also, fireworks shall be allowed for one hour in the morning i.e. 4:00 a.m. to 5:00 a.m. and one hour in the evening i.e. 9:00 p.m. to 10:00 p.m.

(2) It is also clarified that pan India directions pertain to:

(a)Community fire cracking. Here, direction is to explore the feasibility of community fire works.

(b)Duration within which fireworks can take place i.e. for two hours as contained in direction No. (xiv) and modified vide order dated October 30, 2018 as well as this order. This also is applicable throughout India.

(c) Direction No. (xiii) which deals with extensive pubic awareness campaign also applies throughout India.

(d)In addition, direction regarding production of crackers with reduced emission, restraining e-commerce websites for selling firecrackers, also applies throughout India.

(e) Likewise, the aforesaid pan India directions will be enforced by the police authorities and, thus, direction No. (xvi) to police shall also be applicable throughout India.

(f) Direction No. (xvii) which is regarding the effect of pollution of all categories is also applicable to all the States.

We make it clear that apart from the above, no other modification is carried out in order dated October 23, 2018.

Directions given in  Supreme Court decision of Arjun Gopal v. Union of India, 2018 SCC OnLine SC 2118:

  • Complete ban on manufacture and sale of all fireworks which are high emission. Therefore all existing fireworks like sparklers, flower pots, chakras, rockets, and crackers stand banned.
  • Only “green” and low emission fireworks which will have to be made in future are permitted, once cleared by PESO.
  • Any of those fireworks which are green or low emission when invented will be permitted to be used only in community areas as demarcated and not in front of everybody’s houses.
  • Any violation of the sale of prohibited fireworks or their use or the bursting of permitted fireworks in non designated areas will be the responsibility of the respective SHO who can be hauled up for contempt of the Supreme Court.
  • No E-Commerce site can sell any of the traditional Fireworks and if they do so they will be guilty of contempt of Supreme Court as well.
  • It will be the responsibility of PESO to ensure that all existing fireworks are disposed of and not permitted to be sold.
  • On Diwali days or on any other festivals like Gurupurab, when fireworks generally take place, it would strictly be from 8:00 p.m. till 10:00 p.m. only. On Christmas and New Year eve, when such fireworks start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only.
  • Union of India, Government of NCT of Delhi and the State Governments of the NCR would permit community fire cracking only (for Diwali and other festivals etc.)

Further, the direction regarding the use of green crackers was meant for the Delhi-NCR region and was not pan India.[ Arjun Gopal v. Union of India, WP(C) No. 728 of 2015, Order dated 31-10-2018]