The National Green Tribunal (NGT), Principal Bench, dated 9th November 2020, has issued a 58-page order by imposing a blanket ban on the sale and use of firecrackers in the Delhi-national capital region (NCR) from the midnight of November 9 to that of November 30.
The application was filed by the Indian Social Responsibility Network through Santosh Gupta, seeking remedial action against pollution by use of firecrackers in NCR during the time air quality is unsatisfactory with the potential of the severity of Covid-19 pandemic. The application referred to the statement of the Union Health Minister and the Health Minister of Delhi that during the festive season there will be a rise of COVID-19 cases due to air pollution. The learned amicus, Shri Panjwani submitted various studies, articles, surveys and reports by stating that air pollution increases the risk of mortality from COVID-19.
The amicus submitted that when the Supreme Court ordered for limited use of green crackers, the court did not consider its effects during COVID-19. They contended that there is enough material to prove that the nexus between the pollution and the COVID will increase impact by reducing the immunity level that will render the citizens susceptible to more diseases that may affect the heart, lungs, etc.
Further, the amicus submitted that Precautionary Principle should be invoked, if conclusive scientific evidence is not available as per the orders laid down in the case Tribunal on its own Motion vs. Ministry of Environment, Forest & Climate Change & Ors., dated 2nd November 2020.
Shri Mahesh Jethmalani, appearing for the Firework Manufacturer’s Association, submitted before the court that if it is scientifically proved that pollution does not impact Covid, the drastic direction of regulating and restricting the use of firecrackers may not be called for. Further, it was stated that there will be a loss of employment if there would be a ban on Chinese crackers.
In conclusion, the Respondents submitted that green crackers should be permitted for a limited period.
The Bench analyzed that although the restriction on the sale and use of crackers may affect the business and employment, but, at the same time if the use of crackers results in pollution and affects the life and health of the citizens and the environment. Therefore, such use may have to be restricted to effectuate the ‘Sustainable Development’ principle of which the ‘Precautionary’ principle is a part, under Section 20 & Section 15 of the National Green Tribunal Act, 2010.
They stated that the right of trade is not absolute and is to be subject to the ‘Sustainable Development’ principle, which is part of the right to life under Article 21 of the Indian Constitution.
The Tribunal Bench headed by Justice Adarsh Kumar Goel observed by referring the Supreme Court case Arjun Gopal v Union of India, (2019) 13 SCC 523 that the ‘Precautionary’ principle was held to be applicable even without a scientific study. It was observed that it was desirable to err on the safe side to enforce the right of a pollution-free environment even in absence of scientific study and the right to a safe environment is not controlled by economic considerations.
The Bench observed that apart from non-attainment cities, there are other cities where air quality norms are not met. They rejected the contention that COVID-19 does not add to the adverse health impact due to pollution. They also observed Air quality index (AQI) between 201 and 300 and from 301 to 400 is considered to be in the “poor” and “very poor” category, respectively.
After hearing the rival contentions on the matter and applying the ‘sustainable development’ and the ‘precautionary’ principles, The Bench directed the complete ban on the sale and use of firecrackers between November 9 and 30. This direction will also apply to all cities/towns in the country where the average of ambient air quality during November falls under the ‘poor’ and above category.
The Bench directed that only green crackers will be allowed to be sold, where AQI is “moderate”, that is, between 101 and 200 or below. Furthermore, they stated that the timings for the use and bursting of firecrackers would be restricted to only two hours during Diwali, which would be celebrated on Saturday (November 14th). They added that in other states, the ban or restrictions of crackers are optional.
The tribunal has directed the Central Pollution Control Board (CPCB) and the state pollution control boards to regularly monitor the AQI between November 9 and 30 and upload the recorded data on their respective websites.
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