Breathing space for the capital

By restoring its earlier ban on the sale of fireworks, the Supreme Court has affirmed that air pollution has become a serious health hazard in Delhi and the NCR.

A smog-enveloped Connaught Place, in the heart of New Delhi, a few days after Deepavali on November 5, 2016.

ARJUN GOPAL, Aarav Bhandari and Zoya Rao Bhasin, all children not even four years old and living in Delhi, will indeed thank their parents when they grow up for making them the lead petitioners in a public interest litigation (PIL) petition filed in the Supreme Court in 2015. The PIL had sought effective relief from the worsening air pollution in the city. On October 9, it had an unexpected success, ensuring that Deepavali this year was less polluting than last year. A bench, comprising Justices A.K. Sikri, Abhay Manohar Sapre and Ashok Bhushan, restored the Supreme Court’s 2016 order suspending the permanent licences granted earlier to sell fireworks in Delhi and the national capital region (NCR).

That order was passed on November 11, 2016, soon after Deepavali, when Delhi and the NCR were faced with a situation described as a “health emergency”, following the rapid deterioration of air quality because of the bursting of fireworks and other factors. It was passed by a bench comprising the then Chief Justice of India, T.S. Thakur, and Justices Sikri and S.A. Bobde. But on September 12, 2017, a two-judge bench comprising Justices Madan B. Lokur and Deepak Gupta lifted the suspension of permanent licences “for the time being”.

Judicial discipline requires that a bench of smaller strength does not dilute an order passed by a larger bench. Yet, the Lokur-Gupta bench lifted the suspension of permanent licences by tweaking the 2016 order on the grounds that a graded regulation was necessary, which would eventually result in prohibition. It had reasoned that from the material available to it, it could not be said with any great degree of certainty that the extremely poor quality of air in Delhi in November and December 2016 was solely the result of bursting fireworks during Deepavali.

Certainly, there were other causes as well, but the contribution of fireworks cannot be glossed over; unfortunately, it was not possible to give an accurate or relative assessment of what worsened the air quality in Delhi and the NCR, the bench suggested. Consequently, a complete ban on the sale of fireworks would be an extreme step that might not be fully warranted by the facts available, the Lokur-Gupta bench held on September 12.

A concealed fact It is indeed unusual for one bench of the Supreme Court to review and reverse an order passed by another bench within a few days of its passing. However, rather unusual circumstances were behind it. The Central Pollution Control Board (CPCB) had taken the stand before the Delhi High Court, nearly 20 years earlier, that sulphur in fireworks should not be permitted. Sulphur, on combustion, produces sulphur dioxide, which is extremely harmful to health. The CPCB had stated then that between 9 p.m. to midnight on Deepavali day the levels of sulphur dioxide in the air were dangerously high. The CPCB had also stated in a letter to the Commissioner of Delhi Police on November 4, 1996, that bursting crackers joined together should be banned. Neither the CPCB nor the Delhi Police, who are the respondents before the Supreme Court in the Arjun Gopal case, divulged this fact to the court.

What the CPCB failed to divulge was not a new fact. On the contrary, it maintained that it had been consistent in its stand and that it was in favour of a complete ban on the sale of fireworks. However, the counsel for the petitioners also came across a report submitted by the amicus curiae to the Delhi High Court on September 14, 1998, in Sagun Kaushik vs Lt Governor of Delhi . The amicus curiae was none other than Justice Lokur himself, before his elevation to the bench as a judge of the Delhi High Court.

In this case, the High Court had imposed a ban on the manufacture, sale or use of firecrackers that generated noise levels exceeding the acceptable limit and required manufacturers to specify the noise level on the product itself. The High Court also held that people should be made aware of the ill effects of air and noise pollution caused by indiscriminate use of fireworks. More importantly, the report submitted by the amicus curiae had recommended a ban on certain types of firecrackers and the use of sulphur.

The petitioners in the Arjun Gopal case, therefore, first moved an application before Justice Lokur himself, annexing the 1998 report that he had submitted as amicus curiae to the Delhi High Court, to review his September 12 order relaxing the ban on the sale of fireworks. Justice Lokur, in a brief order, referred to this annexure and recused himself from hearing the application. The matter was then posted before the Justice Sikri-led bench, which finally decided it on October 9.

Justice Sikri described the petitioners’ move to cite the 1998 amicus curiae report as an attempt to take the case away from Justice Lokur’s bench. He denounced it as an unhealthy practice and recorded the court’s strongest condemnation. But Justice Sikri admitted that the application raised an important public issue that needed serious and adequate consideration.

Justice Sikri reasoned that the 2016 order was passed immediately after Deepavali, and therefore, its effect would be discernible only if it was implemented for at least one Deepavali season. “The order suspending the licences should be given one chance to test itself in order to find out as to whether there would be positive effect of this suspension, particularly during Diwali period,” the Justice Sikri-led bench held. The bench then said that Justice Lokur’s September 12 order would become effective only from November 1, well after this year’s Deepavali. The Justice Sikri-led bench suspended the temporary licences to sell fireworks that might have been issued after September 12 so that there was no further sale of crackers in Delhi and the NCR.

In Arjun Gopal and others , the petitioners sought relief from wide-ranging issues—from the use of fireworks (including firecrackers), harmful burning of crops and dumping of malba (construction material), and so on—besides demanding steps required for a cleaner environment. However, the court chose to restrict its order to granting interim relief only in the case of fireworks.

Measuring air quality The 2016 order noted that air quality was measured in terms of the Air Quality Index (AQI), launched in India on October 17, 2014, by the Union Ministry of Environment and Forests. It consists of a comprehensive set of parameters to monitor and assess air quality. The AQI considers eight substances as pollutants (particulate matter, or PM 10 and PM 2.5; nitrogen dioxide, or NO2; sulphur dioxide, or SO2; carbon monoxide, or CO; ground-level ozone, or O3; ammonia gas, or NH3; and lead, or Pb), and based on the levels of these pollutants, six categories of AQI, ranging from “Good” to “Severe”, have been prescribed. Reports indicated that the AQI in Delhi was much worse than “Severe”, going above the AQI 500 mark on many days in November 2016. On the day after Deepavali in 2016, it was 14 times worse than the safe limit.

In its 2016 order, the court cited, apart from other studies, the results of a study conducted by the Kolkata-based Chittaranjan National Cancer Institute, commissioned by the CPCB. The study found that in the key indicators of palpitation, vision, blood pressure and respiratory health, such as lung function, children aged between four and 17 in Delhi were worse off than their counterparts elsewhere in the country.

The court found that concentrations of PM 2.5 and PM 10 had shown considerable increase in the NCR. PM 2.5 refers to tiny particles or droplets in the air that are two and a half microns or less in width. The widths of the larger particles in the PM 2.5 size range would be about 30 times smaller than that of a human hair. These particles primarily emanate from vehicle exhausts and other operations that involve the burning of fuel such as wood, heating oil or coal and, of course, firecrackers. The court considered the fact that in 2016, the 24-hour average of the PM 2.5 level in South Delhi was 38 per cent higher than on the Deepavali night of 2015. The day after Deepavali in 2016, it was twice as high as it was on the day after Deepavali in 2015, estimated at 26 times more than the World Health Organisation’s (WHO) standards or levels considered safe. On November 1, 2016, Delhi woke up to an average PM 2.5 level which was 29 times above WHO standards.

The CPCB report indicated that air pollution levels across the region rose by four to five times on Deepavali as a consequence of fireworks.

The court held that when the AQI in the NCR was abysmally and threateningly severe, allowing free trade in fireworks, which was a major source of noise and air pollution, and allowing the availability of such fireworks or explosives constituted a serious invasion of the freedoms and rights conferred on citizens by Part III of the Constitution.

Balancing the vital interests of the vast majority of citizens against the commercial interests of a few, the bench held that the balance must tilt heavily in favour of the citizens. Applying the precautionary principle, the court mandated that where there were threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Rule 118 of the Explosive Rules, 2008, framed under the Explosives Act, 1884, provides for the manner in which licences issued under the Act to store and sell explosives could be suspended or cancelled. Sub-rule (5) thereof confers on the Central government the power to suspend or cancel a licence if it considered that it was in the public interest. Considering the grave air quality situation in the NCR, the Supreme Court found it was justified in intervening and suspending the licences given to store and sell fireworks in the NCR. It, therefore, directed the Central government in 2016 to suspend all such licences, wholesale and retail, in the NCR. It held that the suspension would remain in force until further orders, and that such licences could not be granted or renewed until further orders.

It remains to be seen how restoration of the 2016 order by the Supreme Court will affect the air quality in Delhi this Deepavali.

Meanwhile, expressions of dissent to the Supreme Court’s order in the social media, giving it a communal colour and suggesting that the court was targeting only Hindu festivals to control pollution, have anguished the court. On October 13, traders who had invested huge sums of money in the purchase of crackers and were likely to suffer severe financial loss approached the court for relief.

The Justice Sikri-led bench declined their plea, expressing its anguish that the criticism against its order was on communal lines. “We are not against celebrating the festival, but we want to experiment to bring down the pollution level,” the court explained.