Disposed

Dr Ca a S Vishnu Bharath v. State of Karnataka

Karnataka HC22 Jan 2021WP/12629/2020

Case brief

AI extract

What is this about?

Public interest writ petitions sought a ban on the sale and use of fire-crackers in Bengaluru, particularly during the COVID-19 pandemic. The High Court held that imposing such a ban is a policy decision for the State and not for the court, and directed the State to consider the petitioners' prayers and decide on a complete ban within three months.

What did the court decide?

Direction to the State to consider the petitioners' prayers and decide on a complete ban on fire-crackers in the State within three months of receipt of a certified copy of the order.

Dr Ca a S Vishnu Bharath Vs State of Karnataka — Environment and Pollution | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JANUARY, 2021

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PRESENT

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THE HON'BLE Mrs. JUSTICE B.V. NAGARATHNA

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AND

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THE HON'BLE Mrs. JUSTICE M.G. UMA

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W.P. No.12629 OF 2020 [GM-RES-PIL]

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C/w.

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W.P. No.12901 OF 2020 [GM-RES-PIL]

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In W.P. No.12629/2020:

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BETWEEN:

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DR. CA A.S. VISHNU BHARATH S/O. LATE A. SATHYANARAYANA SETTY, AGED ABOUT 68 YEARS, NO.450, 7^TH MAIN, 4^TH BLOCK, JAYANAGAR, BANGALORE - 560 011. ... PETITIONER

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(BY SRI. NARENDRA BABU B.K., ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY CHIEF SECRETARY, HEALTH DEPARTMENT, VIDHANA SOUDHA, BANGALORE - 560 001.

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POLLUTION CONTROL BOARD BY ITS DIRECTOR CHURCH STREET, BANGALORE - 560 001.

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BRUHAT BENGALURU MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER BANGALORE - 560 002. ... RESPONDENTS

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(BY SMT. VANI H., ADDL. GOVERNMENT ADVOCATE FOR R-1;

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SMT. SHOBHA KULKARNI, ADVOCATE FOR R-2; SRI. K.N. PUTTEGOWDA, ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO IMPOSE BAN ON SALE OF FIREWORKS/CRACKERS AND BURNING/USING OF FIREWORKS/ CRACKERS IN BENGALURU, GRANT INTERIM ORDER DIRECTING THE RESPONDENTS NOT TO PERMIT ANY BODY TO SELL THE FIREWORKS/CRACKERS AND ANY ONE TO BURN THE SAME TILL THE COVID-19 PANDEMIC COMES TO CONTROL, DURING THE PENDENCY OF THE ABOVE WRIT PETITION.

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In W.P. No.12901/2020:

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BETWEEN:

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SAMARPANA (CULTURAL AND SOCIAL SERVICE ORGANISATION) NO.7-B, 19^TH 'C' MAIN ROAD, 1^ST BLOCK, RAJAJINAGAR BANGALORE - 560 010. REPRESENTED BY ITS GENERAL SECRETARY, SRI. SHIVAKUMAR HOSAMANI, AGED 52 YEARS, S/O. LATE SRI NAGANNA. ... PETITIONER

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(BY SRI. G.R. MOHAN, ADVOCATE (THROUGH V/C))

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AND:

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THE CHIEF SECRETARY KARNATAKA STATE GOVERNMENT VIDHANA SOUDHA, BENGALURU - 560 001.

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THE COMMISSIONER OF POLICE INFANTRY ROAD, BENGALURU - 560 001.

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THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE BENGALURU - 560 002.

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THE SECRETARY

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KARNATAKA STATE POLLUTION CONTROL BOARD CHURCH STREET, BENGALURU - 560 025. ... RESPONDENTS

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(BY SMT. VANI H., ADDITIONAL GOVERNMENT ADVOCATE FOR R-1 AND R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF MANDAMUS TO CONSIDER THE REPRESENTATION OF THE PETITIONER DATED 31.08.2020; AND TO DIRECT TO THE STATE POLLUTION CONTROL BOARD TO MONITOR THE AMBIENT AIR QUALITY CRITERIA VALUES (AAQCVs) PROPOSED BY CPCB WITH REGARD TO BURSTING OF FIRECRACKERS BY COLLECTING THE DATA THEREON BY SUBMITTING THE REPORT TO THIS HON'BLE COURT TO ENABLE THIS HON'BLE COURT TO COMPLETELY BAN THE SALE AND BURSTING OF FIRECRACKERS IN FUTURE ETC.,

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THESE WRIT PETITIONS COMING ON FOR DICTATING ORDERS THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:

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O R D E R

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These writ petitions have been filed in public interest. Writ Petition No.12629 of 2020 has been filed by Dr. A.S.Vishnu Bharath (Social Activist) who is stated to be a Chartered Accountant and a person who respects environment. It is stated that he is well-known for his communication skills and has authored around fifty books on different topics and about the adverse and deleterious effects of pollution due to bursting of fire-crackers on environment, health and well-being of all human beings and animals. In the circumstances, while supporting his prayer for seeking a ban on fire-works / fire-crackers in

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Bengaluru, he has assigned various reasons in doing so, in his memorandum of writ petition.

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Writ Petition No.12901 of 2020 is also filed in public interest by an organisation called Samarpana, which is stated to be a cultural and social service organisation registered under the Karnataka Societies Registration Act, earlier in the name and style of "Vinayaka Geleyara Balaga" and later on changed to "Samarpana" vide amendment dated 02.05.2000. It is averred that the petitioner-Organisation has taken up various social causes in Bengaluru especially concerning the residents of Rajajinagar and has filed this writ petition seeking a direction to the respondents to consider their representation dated 31.08.2020 and to issue a direction to the Karnataka State Pollution Control Board to monitor the Ambient Air Quality Criteria Values (AAQCVs) proposed by Central Pollution Control Board (CPCB) with regard to bursting of fire-crackers by collecting the data thereon by submitting the report to this Court to enable this Hon'ble Court to completely ban the sale and bursting of firecrackers in future.

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We have heard learned counsel for the

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petitioners and learned Additional Government Advocate for the State.

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It is also noted that these writ petitions have been listed on several dates and interim orders have been passed particularly having regard to the fact that Deepawali festival was due. In that regard, directions were issued by a Co-ordinate Bench of this Court concerning the use of green crackers during Deepawali festival of 2020, particularly due to the fact that Corona virus - COVID-19 pandemic was raging at the relevant point of time. The same was thought to be one of the worrying factors for causing ill-health, particularly respiratory illness, bronchitis, etc.

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Thereafter, the writ petitions were listed on several dates and yesterday (on 21.01.2021), we heard learned counsel for the petitioners and learned Additional Government Advocate for the State and perused the material on record.

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Having regard to the nature of prayers sought by the petitioners, we think that the said pleas of the

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petitioners could be more effectively addressed by the respondent/State which has to take a policy decision in the matter of banning fire-works / fire-crackers; it is not for this Court to direct such a ban to be made as such.

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The reasons for saying so are not far to see. Article 21 of the Constitution is a fundamental right and it states, no person shall be deprived of his life or personal liberty except according to procedure established by law. The fact that the right to clean and pollution-free environment is to be read into the content of Article 21 of the Constitution, is well-established by several judgments of the Hon'ble Supreme Court. In fact, the State is bound to protect the life and liberty of its citizens. Even on a plain reading of Article 21 of the Constitution, it guarantees the most precious and important of all rights, namely the right to life and personal liberty. This was recognised way back in A.K.Gopalan vs. State of Madras, [AIR 1950 SC 27] and several other judgments thereafter. In Shanti Star Builders vs. Narayan Totame, [1990 (1) SCC 520], the Hon'ble Supreme Court held that right to life which is guaranteed in a civilized society would, take within its sweep, the right to food, the

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right to clothing, the right to decent environment and a reasonable accommodation to live in. In Subhash

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Kumar vs. State. of Bihar, [(1991) 1 SCC 598], the Supreme Court held that right to life is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution free water and air for full enjoyment of life. In Virendra Gaur vs. State of Haryana, [1995 (2) SCC 577], the Hon'ble Supreme court held that Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment, including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance, free from pollution of air and water, sanitation, without which, life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water, pollution etc should be regarded as amounting to violation of Article 21. In Narmada Bachao Andolan vs. Union of India, [2000 (10) SCC 664 at p.727], the Hon'ble Supreme Court observed that sustainable development means what type or extent of development can take place, which can be sustained by nature/ecology

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with or without mitigation. In Murli S. Deora vs. Union of India, [(2001) 8 SCC 765], it was held that the right to clean air was part of the right to life under Article 21. In Hinch Lal Tiwari vs. Kamla Devi, [(2001) 6 SCC 496], it was held that healthy environment enables people to enjoy a quality of life which is the essence of the rights guaranteed under Article 21.

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Although, the right to life and personal liberty is not absolute, nevertheless, over the decades, the Hon'ble Supreme Court has read into Article 21 of the Constitution several other fundamental rights. In fact, the right to life including right to freedom from noise pollution has also been enunciated by the Hon'ble Supreme Court in

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Noise Pollution (V), In Re with Forum, Prevention of Environmental and Sound Pollution vs. Union of India and another, [(2005) 5 SCC 733], (Noise Pollution (V), In Re) while interpreting Article 21 of the Constitution. This is in the context of right to a pollutionfree environment including freedom from noise pollution.

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Further, the Directive Principles of State Policy,

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which is in Part IV of the Constitution, particularly Article

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48A may be read. The same states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. It has been held that the said Article, which is in the nature of a Directive Principle, envisages that the State must take all steps for, inter alia, pollution-free environment, including freedom from noise pollution. Article 47 of the Constitution is also a Directive Principle which specifically speaks of improvement of public health as being a primary duty of the State.

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In this regard, we would also like to emphasize on Article 51A(g) of the Constitution, which is in Part IV-A of the Constitution, which deals with fundamental duties. The said Chapter was inserted by the Constitution (Fortysecond Amendment) Act, 1976, with effect from 03.01.1977 and Article 51A(g) states that, it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

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Thus, on a conjoint reading of Articles 21, 47, 48A and 51A(g) of the Constitution, it emerges that the

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right to environment, which envisaged pollution-free environment including freedom from noise pollution which is envisaged in Article 21 of the Constitution, is not just a mandate issued to the State in the context of Article 48A which is a Directive Principle of State Policy. When read conjointly with Article 51A(g), it becomes a duty of every citizen of this country to ensure that there is pollution-free environment, in other words, in the context of these cases, freedom from noise pollution.

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At this stage, we may state that in the context of prayers sought by the petitioners, where they have sought a ban on use of fire-crackers or fire-works, culturally speaking, fire-crackers or fire-works are used not only for celebrations including electoral victories, marriages but in some communities, fire-crackers are also burst when the dead is carried to the burial ground. Therefore, the use of fire-crackers, culturally speaking, is significant not only for celebrations but also for signaling mourning. But, the time has now come to consider this aspect, not from the point of view of culture and tradition, but by placing more importance on environment and fundamental rights, directive principles and the

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fundamental duties which have been envisaged under the Constitution not just on the State, but also on every citizen to protect the environment. This conversely also means not to cause any harm to the environment by any action or omission which would have an adverse impact on the right to life of the other citizens.

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In this regard, we may straight away refer to

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the judgment in the case of Noise Pollution (V), In Re . In that case, the Hon'ble Supreme Court was dealing with the day-to-day life of the people in India, in relation to noise pollution and the right to life enshrined in Article 21 of the Constitution. The Hon'ble Supreme Court in that case, delineated on the significance of Article 21 of the Constitution which guarantees life and personal liberty to all persons and observed that any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man is nuisance. How and when a nuisance created by noise becomes actionable has to be answered by reference to its degree and the surrounding circumstances, the place and the time. Considering the matter in the context of Article 19(1)(a) of the Constitution, which deals with freedom of

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speech and right to expression, the Hon'ble Supreme Court opined that nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21 of the Constitution.

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In the context of noise pollution, the Hon'ble Supreme Court considered the concept of noise and it answered that the word "noise" is derived from the Latin term "nausea". It has been defined as "unwanted sound, a potential hazard to health and communication dumped into the environment with regard to the adverse effect it may

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have on unwilling ears." (P.S.Jaswal and Nistha Jaswal--

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Environmental Law, II Edition, 2003, Page 327).

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In the above context, reliance was placed on Section 2(a) of the Air (Prevention and Control of Pollution) Act, 1981, which defines "air pollutant" to mean any solid, liquid or gaseous substance, including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment. Reference was also made to Section 2(c) of the Environment (Protection) Act, 1986 which defines "environmental pollution" to mean the presence in the environment of any environmental pollutant and Section 2(b) of the said Act which defines "environmental pollutant" to mean any solid, liquid or gaseous substance present in such concentration as may be, or tends to be injurious to environment.

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According to the Hon'ble Supreme Court, the disturbance produced in our environment by the undesirable sound of various kinds is called "noise pollution". The health hazards caused as a result of noise pollution was also considered and it was held that, noise,

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being a type of atmospheric pollution was an adverse byproduct as a result of industrialization and technological advancement. Earlier, the noise pollution was confined to a few special areas but as of now, it engulfs the entire atmosphere, particularly, in urban areas. The effects of noise on human beings depend upon the sound's pitch, its frequency, time pattern and length of exposure. Noise has both auditory and non-auditory effects depending upon the intensity and the duration of the noise level. It affects sleep, hearing, communication, mental and physical health. It may even lead to madness in people. Noise can disturb work, rest, sleep, and communication. It can damage our hearing and evoke other psychological, and pathological reactions. On account of complexity, variability and the interaction of noise with other environmental factors, the adverse health effects of noise cannot be analysed in a straight jacket manner.

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Considering the adverse effects of noise on human health, the Hon'ble Supreme Court delineated that noise could result in hearing loss, interference with communication, disturbance of sleep, annoyance, having adverse effects on performance of tasks; physiological

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effects and ultimately, noise having an effect on the unborn children and human beings generally and while considering these aspects, the Hon'ble Supreme Court has elucidated in detail on the possible clinical manifestations of noise pollution on the human physique include resulting in acute stress, affecting digestive, skeleto-muscular system, hyper-tension, heart disease and other adverse hormonal and consequences, apart from causing mental disturbances including head-aches, insomnia, stress, etc. The Hon'ble Supreme Court has also analysed on the source of noise pollution and has referred to noise caused on account of the road traffic, air-craft noise, noise from railroads, construction noise, noise from industry, noise in buildings, and noise from consumer products.

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A separate section of the said judgment also deals with noise pollution in the context of fireworks, in paragraphs 46 to 56, which are extracted as under:

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" IV Noise pollution in the special context of Fireworks .

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Fireworks are used all over the world to celebrate special occasions. In India, fireworks are burst on festivals like Dussehra, Diwali and on special occasions like social gatherings,

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marriages, Independence day, Republic day, New year day, etc. In other countries of the world, fireworks are generally burst either on the New Year day or on the birthday of their respective countries. However, bursting of firecrackers is a health hazard since it is responsible for both air pollution and noise pollution.

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The use of Fireworks has led to air pollution in the form of noise and smoke. Their excessive use has started to be a public hazard and violation of their fundamental rights as enshrined in the Constitution.

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It has been held in the case of Om

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Birangana Religious Society v. State, (1996) 100 CWN 617, that the

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"Freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India includes, by necessary implication, freedom not to listen and/or to remain silent. A citizen has a right to leisure, right to sleep, right not to hear and right to remain silent. He also has the right to read and speak with others".

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Because of the tremendous sound and noise, the citizens cannot exercise all these fundamental rights.

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It has been seen that firecrackers noise is an impulsive noise and is hazardous. Bursting of a firecracker near the ear can lead sometimes to non-recoverable hearing loss.

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Diwali is the most important festival of India. The bursting of firecrackers during this period is a wide spread practice. The unpredictable, intermittent and impulsive noise produced by bursting of crackers all around, turns the festival of lights into cacophony of noise. People are unable to even sleep due to this excessive noise pollution. Several people are injured due to the noise produced by firecrackers every year.

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Firecrackers not only increase the ambient noise level but also contribute significantly in increasing the air pollution by means of toxic gases and particles due to their blast wave resulting from a rapid release of energy.

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In order to assess the situation of noise pollution caused by Firecrackers at the time of Diwali the Central Pollution Control Board (CPCB) has been conducting ambient noise level monitoring during Diwali festival regularly at various locations in Delhi since 1993, to find increased ambient noise level caused by intensive burning of crackers. As in the past, the noise and air quality monitoring have been carried out in the years 1999, 2000, 2001, and 2002. The noise monitoring locations have been selected to cover almost all areas of Delhi.

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An analysis of the reports prepared in the years 1999, 2000, 2001, and 2002 reveals that the ambient noise level on Diwali day exceeded the limit at almost all the places during these years. The noise level was higher during Diwali-2000 as compared to the values recorded during Diwali festival in the years 1999, 2001, and 2002.

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The percentage of violation in Leq [N.B.-Equivalent Continuous Sound Pressure Level, Leq is the level of that steady sound which over the same interval of time, contains the same total energy (or dose) as the fluctuating sound. Equivalent continuous sound level has gained widespread acceptance as a scale for the measurement of long-term noise exposure.] noise level varied from 02 to 49% in the year 2002, 12 to 55% in the year 2001, 11 to 58% in the year 2000 and 22 to 47% in the year 1999 with respect to the day time standards at all the areas . The ambient noise level conducted during the years 1999 to 2002 on Diwali festival, exceeded the limit at all places in every year and the percentage of violation varies from 2% to 58%. Thus, the study does reveal that the noise levels that have been measured on all these occasions have been more than the prescribed norms. This is a point of worry as it has been discussed that noise pollution does tend to have adverse effects on a person. Thus immediate steps in this direction need to be taken.

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The problem of noise pollution due to firecrackers is not only limited to India. Similar problems are being experienced in other countries as well. In fact, in the United Kingdom, in Nottingham the "Be Safe Not Sorry" campaign was launched after the post was inundated with letters from readers to the newspaper saying they were fed up with the noise, nuisance and the distress that fireworks cause."

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The Hon'ble Supreme Court opined that use of fire-

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works is a public hazard and a violation of fundamental rights and which could lead to adverse effects, such as loss of hearing, loss of speech and cause pollution in the air on account of the emission from the fire-crackers.

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Reference has also been made on the methodology adopted in other countries for noise pollution control. In that context, the Hon'ble Supreme Court has referred to the Noise Abetment Act, 1960 of England; Control of Pollution Act, 1974; Noise Act, 1996 - U.K. Reference has also been made to the U.S. Noise Pollution and Abatement Act, 1970; Noise Regulation Law of Japan; Law of the People's Republic of China on Prevention and Control of Pollution from Environmental Noise; the Noise

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Control Act, 1975, in Australia; and has also referred to the statutory laws in India concerning noise pollution. In that regard, reference has been made to the Noise Pollution (Regulation and Control) Rules, 2000; Sections 268, 290 and 291 of the Indian Penal Code, 1860; Section 133 of the Code of Criminal Procedure, 1973; Sections 89 and 90 of the Factories Act, 1948; Rules 119 and 120 of the Central Motor Vehicles Rules, 1989, framed under Motor Vehicles Act, 1988; the Air (Prevention and Control of Pollution) Act, 1981; The Environment (Protection) Act, 1986; and in the context of fire-works, reference has been made to the Explosives Act, 1884 and Explosives Rules, 1983 which also apply to fire-crackers.

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The Hon'ble Supreme Court stated that in India there is no separate Act that regulates the manufacture, possession, use, sale and transactions in fire-crackers, except the Explosives Act, 1884. The noise that is produced by these fireworks is regulated by the Environment (Protection) Act, 1986 and the Noise Pollution (Regulation and Control) Rules, 2000. In the said judgment, the Hon'ble Supreme Court has referred to several judgments, which touch upon noise pollution

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particularly, where, noise being emanated by vibrations on account of operating heavy machinery in the residential area; from working of a paddy husking machine at night causing nuisance; playing radio loudly and bursting noisy fire-works/fire-crackers. The use of loud-speakers, by various persons and organisations and such other institutions, resulting in judicial precedent have also been discussed. The Hon'ble Supreme Court opined that the Indian Judicial opinion has been consistent in recognizing right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution and noise pollution beyond permissible limits as an in-road on that right.

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We may refer to the relevant provisions of law in the context of noise and air pollution from fire-crackers:

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(a) In the context of noise standards for firecrackers, Rule 89 of Schedule 1 of the Environment (Protection) Rules, 1986 framed under the Environment (Protection) Act, 1986 reads as under:

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" 89. Noise standards for fire-crackers

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A. (i) The manufacture, sale or use of firecrackers generating noise level exceeding

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125 dB(AI) or 145 dB(C)pk at 4 meters distance from the point of bursting shall be prohibited.

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(ii) For individual fire-cracker constituting the series (joined fire-crackers), the above mentioned limit be reduced by 5 log10(N) dB, where N = number of crackers joined together."

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(b) It would also be useful to refer to Noise

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Pollution (Regulation and Control) Rules, 2000 ("Rules, 2000" for short) and particularly, Rule 5A which reads as under:

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"5A. Restrictions on the use of horns, sound emitting construction equipments and bursting of fire crackers:-

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(1) No horn shall be used in silence zones or during night time in residential areas except during a public emergency.

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(2) Sound emitting fire crackers shall not be burst in silence zone or during night time.

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(3) Sound emitting construction equipments shall not be used or operated during night time in residential areas and silence zones. "

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Sub-rule (2) of Rule 5A of Rules, 2000 states that

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sound emitting fire-crackers shall not be burst in Silence Zone or during night time.

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(c) Rule 8 of Rules, 2000 deals with power to prohibit, etc., continuance of music sound or noise. Rule 8(1)(a)(iii) of Rules, 2000 states that sound caused by bursting of sound emitting fire-crackers, can be prohibited, prevented, controlled or regulated by the authority, that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk of annoyance, disturbance, discomfort or injury to the public or to any person who dwell or occupy property on the vicinity, and by a written order issue such directions as may be considered necessary. For immediate reference, Rule 8 is extracted as under:

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"8. Power to prohibit etc. continuance of music sound or noise.-

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(1) If the authority is satisfied from the report of an officer incharge of a police station or other information received by him including from the complainant that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk of annoyance, disturbance, discomfort or injury to the public or to any person who dwell or

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occupy property on the vicinity, he may, by a written order issue such directions as he may consider necessary to any person for preventing, prohibiting, controlling or regulating:-

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(a) the incidence or continuance in or upon any premises of-

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(i) any vocal or instrumental music,

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(ii) sounds caused by playing, beating, clashing, blowing or use in any manner whatsoever of any instrument including loudspeakers, public address systems, horn, construction equipment, appliance or apparatus or contrivance which is capable of producing or reproducing sound, or

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(iii) sound caused by bursting of sound emitting fire crackers, or,

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(b) the carrying on in or upon, any premises of any trade, avocation or operation or process resulting in or attended with noise.

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(2) The authority empowered under sub-rule (1) may, either on its own motion, or on the application of any person aggrieved by an order made under sub-rule (1), either rescind, modify or alter any such order:

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Provided that before any such application is disposed of, the said authority shall afford to the applicant and to the original complainant, as the case may be, an opportunity of appearing before it either in person or by a person representing him and showing cause against the order and shall, if it rejects any such application either wholly or in part, record its reasons for such rejection. "

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While considering the difficulty in

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implementation of the noise pollution control methodology in India, the Hon'ble Supreme Court has emphasised that there are two aspects: firstly, regarding the will on the part of the Executive or the lack of it to implement the laws. Secondly, lack of requisite awareness on the part of the citizens. The deleterious effect of noise pollution are not well-known to the people and are not immediately perceptible. People generally accept noise pollution as a part of life, a necessary consequence of progress and prosperity.

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That seems to be the heart of the matter in

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these cases and that is why we have referred not only the duties and obligations of the State vis-a-vis Article 21 and

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Article 48A of the Constitution, but we wish to emphasise more on Article 51A(g) of the Constitution which is a fundamental duty and which has to be complied with by every citizen particularly, in the context of ensuring that the citizens are not responsible in causing noise pollution. In this background, we say, it is not only in the context of bursting of fire-crackers, but generally, life-style of every citizen must be such that there is least contribution to the noise-pollution in the environment. We observe that citizens think that causing noise is an expression of their feelings of happiness or even sadness. Noise pollution is caused not just in playing loud music from radios or televisions, etc., from homes, but on account of the glaring horns in motor vehicles including the noise which emanates from those devices which are installed in motor vehicles which is intended to make a sound while reversing the vehicle, etc. Noise pollution caused from places of worship on account of use of amplifiers and loud-speakers, marriage halls, political gatherings, party meetings, public rallies are source of great health hazard on citizens.

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However, there are problems in controlling noise pollution, which have also been adverted to by the

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Hon'ble Supreme Court in paragraph 124 of its judgment. In the context of fire-crackers, the following paragraphs of the judgment of the Hon'ble Supreme Court are apposite and are extracted as under:

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" 124. The problems that are being faced in controlling noise pollution are:-

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The Statutes and the Rules framed thereunder are not comprehensive enough so as to deal with all the problems and issues related to noise pollution. This impression of ours stands reaffirmed on a comparative reading of legislation in India with these in other countries of the world to which we have referred to briefly earlier in this judgment.

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The authorities responsible for implementing the laws are not yet fully identified. Those which have been designated, do not seem to be specialised in the task of regulating noise pollution. There is a dearth of necessary personnel technically qualified to act effectively. What is needed is a combination of technically qualified and administratively competent personnel with the requisite desire and dedication for implementation of the laws.

¶153

There is lack of proper gadgets and equipments and other infrastructure such as labs for measuring the noise levels. Due to the shortage of the instruments needed for the purpose of measuring sound, the policemen who are on the job usually end up measuring sound

¶154

-: 28 :-

¶155

with their ears itself and not with the use of technical instruments."

¶156

X. Firecrackers.

¶157

125. In the context of firecrackers in particular, several questions do arise for which answers shall have to be found. What should be the maximum permissible sound level for firecrackers? What should be the method of checking whether a particular firecracker shall emit sound which shall be within permissible limits? Which authority shall be conferred with the responsibility for ensuring the effective implementation of these noise levels? What should be the time limit during which the bursting of firecrackers should be allowed? Should there be any relaxation in the hours fixed for bursting firecrackers during festival? Should the Environment (Protection) Rules, 1986, be amended in such a way that the firecrackers manufactured for export in other countries are exempted from the Indian noise standards?

¶158

What is the Maximum sound level that should be permissible for firecrackers?

¶159

126. At present the maximum permissible sound level for firecrackers as per the noise standard is provided by Item 89, Schedule I, Table 1.5 of the Environment (Protection) Rules, 1986:

¶160

" 89. Noise Standard for Fire- crackers

¶161

A. (i) The manufacture, sale or use of fire-crackers generating noise level exceeding 125 dB(AI) or 145 dB(C)pk at 4

¶162

-: 29 :-

¶163

meters distance from the point of bursting shall be prohibited.

¶164

(ii) For individual firecracker constituting the series (joined fire- crackers), the above mentioned limit be reduced by 5 log10(N)dB, where N=Number of crackers joined together."

¶165

In the context of pollution caused by fire-

¶166

crackers, reference was made to (i) measuring the noise level of fire-crackers in decibels and thereby securing the implementation of the Rules in this regard, and (ii) securing the implementation of the Rules by restricting and prescribing the size of chemical content, chemical composition etc. of fire-crackers and in that regard, the Hon'ble Supreme Court has made certain observations.

¶167

Next, in the context of fixing of time limit for bursting fire-crackers and whether a relaxation was desirable during festivals, it was opined in the judgment that bursting of fire-crackers between 10.00 p.m. and 6.00 a.m. must be banned without any relaxation in favour of anyone. In that regard, several directions were issued to the Department of Explosives. Ultimately, in the context of fire-crackers, in paragraph 174, the following directions were issued:

¶168

-: 30 :-

¶169

" DIRECTIONS

¶170

It is hereby directed as under:-

¶171

I. Firecrackers

¶172

174. 1. On a comparison of the two systems, i.e. the present system of evaluating firecrackers on the basis of noise levels, and the other where the firecrackers shall be evaluated on the basis of chemical composition, we feel that the latter method is more practical and workable in Indian circumstances. It shall be followed unless and until replaced by a better system.

¶173

The Department of Explosives (DOE) shall undertake necessary research activity for the purpose and come out with the chemical formulae for each type or category or class of firecrackers. The DOE shall specify the proportion/composition as well as the maximum permissible weight of every chemical used in manufacturing firecrackers.

¶174

The Department of Explosives may divide the firecrackers into two categories- (i) Soundemitting firecrackers, and (ii) Colour/lightemitting firecrackers.

¶175

There shall be a complete ban on bursting sound-emitting firecrackers between 10 p.m. and 6 a.m. It is not necessary to impose restrictions as to time on bursting of colour/light-emitting firecrackers.

¶176

-: 31 :-

¶177

Every manufacturer shall on the box of each firecracker mention details of its chemical contents and that it satisfies the requirement as laid down by DOE. In case of failure on the part of the manufacturer to mention the details or in cases where the contents of the box do not match the chemical formulae as stated on the box, the manufacturer may be held liable.

¶178

Firecrackers for the purpose of export may be manufactured bearing higher noise levels subject to the following conditions:

¶179

(i) The manufacturer should be permitted to do so only when he has an export order with him and not otherwise;

¶180

(ii) The noise levels for these firecrackers should conform to the noise standards prescribed in the country to which they are intended to be exported as per the export order;

¶181

(iii) These firecrackers should have a different colour packing, from those intended to be sold in India;

¶182

(iv) They must carry a declaration printed thereon something like "not for sale in India" or "only for export to country AB" and so on."

¶183

-: 32 :-

¶184

In the context of extreme air pollution and grave air quality in National Capital Territory of Delhi, several directions were issued from time to time in Arjun Gopal and Others vs. Union of India, [(2017) 1 SCC 412] in the context of harmful effects of fire-crackers. Paragraph Nos.18 and 19 are relevant and they read as under:

¶185

" 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 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 of bursting fireworks. But at the same time, 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-

¶186

-: 33 :-

¶187

A of the Constitution of India but also on all citizens under Article 51-A(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 of restrictions under Article 19(2) to 19(6) of the Constitution of India [ 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 of India, (1996) 5 SCC 647, 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.

¶188

19. We thus consider it inappropriate that explosives which are used as fireworks should be available in the market in the NCR till further orders. The mechanism of the law in this regard is clear. Rule 118 of the Explosive Rules, 2008 framed under the Explosives Act, 1884 provides for the manner in which licenses issued under the Explosives Act to store and sell explosives could be suspended or cancelled. Sub-rule (5)

¶189

-: 34 :-

¶190

thereof specifically confers on the Central Government a power to suspend or cancel a license if it considers that it is in public interest. This provision also makes it clear that an opportunity to hear the licensee could be dispensed with if the Central Government considers that in public interest. This Court finds that the grave air quality situation in NCR is one such case, where this Court can intervene and suspend the licenses to store and sell fireworks in the NCR. We direct the Central Government to:

¶191

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

¶192

(ii) The suspension shall remain in force till further orders of this Court.

¶193

(iii) No such licenses shall be granted or renewed till further orders."

¶194

In the aforesaid case, direction was issued to the Central Government to suspend all licences for sale of firecrackers, wholesale and retail, within the territory of National Capital Region (NCR) until further orders by the Apex Court. A direction was also issued for not renewing the licences.

¶195

Earlier, in the very same case, on 31.07.2017, it was directed that no fire-crackers manufactured shall contain Antimony, Lithium, Mercury, Arsenic and Lead in

¶196

-: 35 :-

¶197

any form whatsoever. Responsibility was cast on the Petroleum and Explosives Safety Organisation (PESO) to ensure compliance in that regard.

¶198

Subsequently, in the very same case, on 12.09.2017, certain directions were issued by modifying the earlier order dated 11.11.2016 in the context of air pollution due to bursting of fire-crackers and consequent health hazard in the NCR, Delhi during Deepawali. Further, while emphasizing on a balanced approach in the matter, the Hon'ble Supreme Court opined that the health of everybody and the human right to breathe good quality air, or at least not be compelled to breathe poor quality of air, must take precedence over commercial or other interest of licensees, for granting permission, possession and sale of fire-crackers.

¶199

Subsequently, on 31.10.2018, in the very same case, several directions were issued permitting the production of fire-crackers with reduced emission (improved crackers, green crackers).

¶200

On 23.10.2018, directions were issued not only for the NCR, Delhi, but also applicable throughout India,

¶201

-: 36 :-

¶202

particularly direction (xiv) pertaining to the duration within which bursting of the fire-crackers or fireworks could take place on certain occasions and direction (xiii) for extensive public awareness campaigns. Direction Nos.(xiii) and (xiv) at paragraph No.42 are extracted as under:

¶203

"42. We are of the opinion that the aforesaid suggestions strive a nice balance between the two competing interests. We accept the aforesaid measures as suggested by the Union of India and direct the Union of India and other concerned authorities to implement the same with immediate effect. In view thereof, following specific directions are issued:

¶204

(i) x x x

¶205

(xiii) Extensive public awareness campaigns shall be taken up by the Central Governments / State Governments / Schools / Colleges informing the public about the harmful effects of firecrackers.

¶206

(xiv) On Diwali days or on any other festivals like Gurpurab etc., when such fireworks generally take place, it would strictly be from 8.00 p.m. till 10.00 p.m. only. On Christmas even and New Year eve, when such fireworks start around midnight, i.e.,

¶207

-: 37 :-

¶208

12.00 a.m., it would be from 11.55 p.m. till 12.30 a.m. only."

¶209

INTERIM ORDERS PASSED IN THESE WRIT PETITIONS:

¶210

Writ Petition No.12629 of 2020 connected with Writ Petition No.12901 of 2020:

¶211

On 13.11.2020, a co-ordinate Bench of this Court in the context of use of green crackers during Deepawali festival directed that the Authorities of the State, the officers of the local bodies and the Police to ensure that only those crackers which are packed in cover having green logo of CSIR-NEERI and PESO as well as QR (Quick Response) Coding system are sold. It further directed that the State Government shall give immediate wide publicity through news channels, local TV channels, social media, etc., to warn the members of the public not to buy or not to burst crackers other than the one having the green crackers logo, i.e., those having the logo of CSIR-NEERI and PESO as well as QR Coding system on its packing. A further direction was issued to Police and Pollution Control Board to immediately attend the complaints received from the citizens regarding violation of the Noise Pollution Rules, 2000.

¶212

-: 38 :-

¶213

33. During the pendency of these writ petitions,

¶214

the State Government issued order dated 14.10.2020 enunciating guidelines for regulation of using and bursting of fire-crackers. Thereafter, on 06.11.2020 a revised order was issued bearing in mind the fact that the Corona Virus COVID-19 Pandemic was still raging. The Annexure to revised order dated 06.11.2020 reads as under:

¶215

"¸ÀPÁðgÀzÀ DzÉÃ±À ¸ÀASÉå:Dgïr 465 nJ£ïDgï 2020,

¶216

¢:06-11-2020gÀ C£ÀÄ§AzsÀ

¶217

¢Ã¥ÁªÀ½ ºÀ§âzÀ DZÀgÀuÉ ¸ÀA§AzsÀªÁV ¥ÀjµÀÌøvÀ ªÀiÁUÀð¸ÀÆaUÀ¼ÀÄ

¶218

ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÒ £ÁåAiÀiÁ®AiÀÄªÀÅ jmï Cfð (¹«¯ï) ¸ÀASÉå: 728/2015gÀ°è ¢£ÁAPÀ: 23.10.2018 ªÀÄvÀÄÛ ¢£ÁAPÀ: 31.10.2018 ºÁUÀÆ vÀzÀ£ÀAvÀgÀ ¤ÃrgÀÄªÀ ¤zÉÃð±À£ÀUÀ¼À£ÀÄß PÀlÄÖ¤mÁÖV ¥Á®£É ªÀiÁqÀvÀPÀÌzÀÄÝ.

¶219

ªÀiÁ£Àå ¸ÀªÉÇÃðZÀÒ £ÁåAiÀiÁ®AiÀÄªÀÅ ªÉÄÃ¯ÁÌtÂ¹zÀ ¤zÉÃð±À£ÀUÀ¼À°è C£ÀÄªÀÄw¹gÀÄªÀ 'ºÀ¹gÀÄ ¥ÀmÁQ' UÀ¼À£ÀÄß ©lÄÖ G½zÀ AiÀiÁªÀÅzÉÃ EvÀgÉ ¥ÀmÁQUÀ¼À£ÀÄß ªÀiÁgÁl ªÀiÁqÀvÀPÀÌzÀÝ®è ªÀÄvÀÄÛ ºÀZÀÑvÀPÀÌzÀÝ®è.

¶220

¸ÀA§AzsÀ¥ÀlÖ E¯ÁSÉ / ¥Áæ¢üPÁgÀUÀ½AzÀ C¢üPÀÈvÀ ¥ÀgÀªÁ£ÀV AiÀÄ£ÀÄß ¥ÀqÉzÀ ªÀiÁgÁlUÁgÀgÀÄ 'ºÀ¹gÀÄ ¥ÀmÁQ' UÀ¼À£ÀÄß ªÀiÁvÀæ ªÀiÁgÁl ªÀiÁqÀvÀPÀÌzÀÄÝ.

¶221

'ºÀ¹gÀÄ ¥ÀmÁQ' ªÀiÁgÁlzÀ ªÀÄ½UÉUÀ±À£ÀÄß ¢£ÁAPÀ: 07.11.2020jAzÀ 16.11.2020gÀªÀgÉUÉ ªÀiÁvÀæ vÉgÉ¢gÀvÀPÀÌzÀÄÝ.

¶222

-: 39 :-

¶223

¥ÀgÀªÁ£ÀVzÁgÀgÀÄ ¸ÀA§AzsÀ¥ÀlÖ E¯ÁSÉ / ¥Áæ¢üPÁgÀ¢AzÀ ¤ÃrgÀÄªÀ ¥ÀgÀªÁ£ÀVAiÀÄ°è ¤UÀ¢¥Àr¹gÀÄªÀ ¢£ÁAPÀ ªÀÄvÀÄÛ ¸ÀÜ¼ÀzÀ°è ªÀiÁvÀæ vÁvÁÌ°PÀ 'ºÀ¹gÀÄ ¥ÀmÁQ' CAUÀrUÀ¼À£ÀÄß vÉgÉAiÀÄ¨ÉÃPÀÄ. ¨ÉÃgÉ ¸ÀÜ¼ÀUÀ¼À°è ªÀÄvÀÄÛ ¢£ÁAPÀUÀ¼À°è CAUÀr AiÀÄ£ÀÄß vÉgÉAiÀÄ¨ÁgÀzÀÄ.

¶224

¸ÁªÀðd¤PÀ ªÀ¸Àw ¸ÀÜ¼ÀUÀ½AzÀ zÀÆgÀ«gÀÄªÀ ªÉÄÊzÁ£À CxÀªÁ §AiÀÄ®Ä ¥ÀæzÉÃ±ÀUÀ¼À°è, 'ºÀ¹gÀÄ ¥ÀmÁQ' ªÀiÁgÁl ªÀÄ½UÉUÀ¼À£ÀÄß ¸ÁÜ¦¸À®Ä ¸ÀA§A¢ü¹zÀ E¯ÁSÉ / ¥Áæ¢üPÁgÀUÀ¼ÀÄ C£ÀÄªÀÄw¸À vÀPÀÌzÀÄÝ.

¶225

ªÀÄ½UÉUÀ¼À°è JgÀqÀÄ PÀqÉ¬ÄAzÀ ¸ÀgÁUÀªÁV UÁ½AiÀiÁqÀÄ ªÀAwgÀ¨ÉÃPÀÄ. MAzÀÄ ªÀiÁgÁl ªÀÄ½UÉ¬ÄAzÀ ªÀÄvÉÆÛAzÀÄ ªÀiÁgÁl ªÀÄ½UÉUÉ 6 «ÄÃlgï CAvÀgÀ«gÀ¨ÉÃPÀÄ.

¶226

¥ÀæwAiÉÆAzÀÄ ªÀÄ½UÉUÀ¼À°è ¸ÀA§AzsÀ¥ÀlÖ E¯ÁSÉ/¥Áæ¢üPÁgÀ¢AzÀ ¤ÃrgÀÄªÀ ¥ÀgÀªÁ£ÀV ¥ÀæwAiÀÄ£ÀÄß ¸ÁªÀðd¤PÀjUÉ PÁtÄªÀAvÉ ¥ÀæzÀ²Àð¸ÀÄªÀÅz À Ä. ¥ÀgÀªÁ£ÀV ¥ÀvÀæªÀ£ÀÄß ¥ÀqÉzÀAvÀªÀgÀÄ PÀqÁØAiÀÄªÁV ªÀÄ½UÉUÀ¼À°è ºÁdjgÀ¨ÉÃPÀÄ.

¶227

'ºÀ¹gÀÄ ¥ÀmÁQ' UÀ¼À£ÀÄß ªÀiÁgÁlÀ ªÀiÁqÀÄªÀ ªÀÄ½UÉUÀ¼À ¸ÀÄvÀÛªÀÄÄvÀÛ ¢£À¤vÀå ¸Áå¤mÉÊ¸ÉÃµÀ£ï ªÀiÁqÀÄªÀÅzÀÄ ºÁUÀÆ ¥ÀmÁQUÀ¼À RjÃ¢UÉ §gÀÄªÀ ¸ÁªÀðd¤PÀjUÉ ¸Áå¤mÉÊ¸Àgï ºÁUÀÆ xÀªÀÄð¯ï ¹ÌçÃ¤AUï ªÀåªÀ¸ÉÜAiÀÄ£ÀÄß PÀ°à¸ÀÄªÀÅzÀgÀ eÉÆvÉUÉ PÀ¤µÀ× 06 Cr ¸ÁªÀiÁfPÀ CAvÀgÀªÀ£ÀÄß UÀÄgÀÄw¸ÀÄªÀÅzÀÄ ºÁUÀÆ CzÀ£ÀÄß PÀlÄÖ¤mÁÖV ¥Á®£É ªÀiÁqÀ®Ä J¯Áè CUÀvÀå PÀæªÀÄUÀ¼À£ÀÄß PÉÊUÉÆ¼ÀîvÀPÀÌzÀÄÝ. ¥ÀmÁQ ªÀiÁgÀÄªÀ ªÁå¥ÁgÀ¸ÀÜgÀÄ ªÀÄvÀÄÛ

¶228

-: 40 :-

¶229

RjÃ¢UÉ §gÀÄªÀ ¸ÁªÀðd¤PÀgÀÄ PÀqÁØAiÀÄªÁV

¶230

ªÀÄÄRUÀªÀ¸ÀÄ zsÀj¹gÀvÀPÀÌzÀÄÝ.

¶231

'ºÀ¹gÀÄ ¥ÀmÁQ' UÀ¼À RjÃ¢AiÀÄ ¸ÀAzÀ¨sÀðzÀ°è AiÀiÁªÀÅzÉÃ jÃwAiÀÄ d£ÀzÀlÖuÉAiÀiÁUÀzÀAvÉ PÀlÄÖ¤mÁÖV £ÉÆÃrPÉÆ¼ÀÄîªÀÅzÀÄ.

¶232

PÉÆÃ«qï-19 ¸ÁAPÁæ«ÄPÀ ¸ÉÆÃAPÀÄ ºÀgÀqÀÄ«PÉAiÀÄ£ÀÄß vÀqÉ UÀlÄÖªÀ ¤nÖ£À°è gÁ¶ÖçÃAiÀÄ ¤zÉÃð±À£ÀUÀ¼À£ÀÄß ºÁUÀÆ gÁdå ¸ÀPÁðgÀªÀÅ ºÉÆgÀr¹zÀ ªÀiÁUÀð¸ÀÆaUÀ¼À£ÀÄß vÀ¥ÀàzÉÃ PÀlÄÖ¤mÁÖV ¥Á°¸ÀvÀPÀÌzÀÄÝ. C®èzÉÃ, ¸ÁªÀðd¤PÀgÀ ªÀÄvÀÄÛ ªÀÄPÀÌ¼À DgÉÆÃUÀåzÀ zÀÈ¶×¬ÄAzÀ DgÉÆÃUÀå E¯ÁSÉ, ¥ÉÆ°Ã¸ï E¯ÁSÉ, ªÀÄºÁ£ÀUÀgÀ ¥Á°PÉ, ªÀiÁ°£Àå ¤AiÀÄAvÀæt ªÀÄAqÀ½, CVß±ÁªÀÄPÀ E¯ÁSÉ, f¯ÁèqÀ½vÀ ºÁUÀÆ EvÀgÉ E¯ÁSÉ/¥Á°PÉ/¥Áæ¢üPÁgÀUÀ½AzÀ ºÉÆgÀr¸À¯ÁzÀ ¸ÀÆZÀ£É ºÁUÀÆ ªÀiÁUÀð¸ÀÆaUÀ¼À£ÀÄß ¸ÀºÀ PÀqÁØAiÀÄªÁV ¥Á°¸ÀvÀPÀÌzÀÄÝ.

¶233

gÁ¶ÖçÃAiÀÄ ¤zÉÃð±À£ÀUÀ¼À£ÀÄß ºÁUÀÆ gÁdå ¸ÀPÁðgÀzÀ DzÉÃ±À / ªÀiÁUÀð¸ÀÆaUÀ¼À£ÀÄß G®èA¦ü¸ÀÄªÀªÀgÀ «gÀÄzÀÞ «¥ÀvÀÄÛ ¤ªÀðºÀuÁ C¢ü¤AiÀÄªÀÄ, 2005 ºÁUÀÆ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ ¸ÉPÀë£ï 188gÀ CrAiÀÄ°è ²¹Û£À/PÁ£ÀÆ£ÀÄ PÀæªÀÄ ªÀÄvÀÄÛ C£ÀéAiÀÄªÁUÀ§ºÀÄzÁzÀ EvÀgÉ PÁ£ÀÆ£ÀÄ G¥À§AzsÀUÀ¼À ªÉÄÃgÉUÉ PÀæªÀÄ dgÀÄV¸À¯ÁUÀÄªÀÅzÀÄ.

¶234

¸À» 06/11/2020

¶235

(n.JA. «dAiÀiï ¨sÁ¸ÀÌgï) ªÀÄÄRå PÁAiÀiðzÀ²ð ºÁUÀÆ PÀ£ÁðlPÀ gÁdå «¥ÀvÀÄÛ ¤ªÀðºÀuÁ ¥Áæ¢üPÁgÀzÀ PÁAiÀÄðPÁj ¸À«Äw CzsÀåPÀëgÀÄ"

¶236

-: 41 :-

¶237

Subsequently, on 10.11.2020, another

¶238

Government order was issued in the context of guidelines issued. The State Government issued guidelines from time to time, bearing in mind the directions issued by the Hon'ble Supreme Court, the National Green Tribunal and this Court, which have issued specific directions in the matter of bursting fire-crackers and thus, consequent adverse environmental impact, not only in the context of noise pollution, but also pollution of the air and atmosphere.

¶239

35. In The National Green Tribunal, on its own motion vs. Ministry of Environment, Forest & Climate

¶240

Change and others , order dated 09.11.2020, the National Green Tribunal (NGT) considered, in particular, the impact of air pollution as being a risk for COVID-19 resulting in life-threatening acute respiratory distress syndrome and respiratory failure as well as acute coronary syndrome, lung injuries, etc. By referring to various studies conducted on air pollution, which contribute to COVID-19 mortality, etc., the NGT by its order dated 05.11.2020, after referring to the aforesaid judgments of the Hon'ble Supreme Court, observed that the health of

¶241

-: 42 :-

¶242

the people had to take a precedence over any commercial or other interests and instead of straight away prohibiting the fire-crackers, there has to be graded regulation resulting in prohibition. It was observed that even when there were several sources of pollution, there is no bar to a particular polluting activity being prohibited, as there could be no right of parity amongst the polluters. The "Precautionary" Principle was held to be applicable even without a scientific study. It was also observed that economic considerations cannot be a bar to remedy the pollution. It was noted that it was desirable to err on safer side to enforce right of pollution-free environment even in the absence of a scientific study, and right to safe environment is not controlled by economic considerations.

¶243

Reference was also made to its earlier orders regarding brick kilns in the NCR, Delhi, adding to air pollution and prohibiting the same, even when it affected right to trade.

¶244

By placing reliance on A.P. Pollution Control Board vs. M.V. Nayudu, [(1999) 2 SCC 718], (M.V. Nayudu), it was observed, the precautionary principle is a

¶245

-: 43 :-

¶246

shift from the earlier principle based on the “assimilative capacity” rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. But, in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the “precautionary principle”, and this was reiterated in Rio Conference of 1992 in its Principle 15 which reads as follows:

¶247

‘ Principle 15. - In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost effective measures to prevent environmental degradation.’

¶248

In this regard, reference could be made to Article in “ The Status of the Precautionary Principle in Australia ” [ (1998) 22 Harvard Environmental Law Review 509 at p. 547 ], the relevant portion of which reads as under:

¶249

"There is nothing to prevent decision-makers from assessing the record and concluding that there is inadequate information on which to reach

¶250

-: 44 :-

¶251

a determination. If it is not possible to make a decision with “some” confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through judicial and legislative means is necessary."

¶252

In other words, the inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.

¶253

The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might

¶254

-: 45 :-

¶255

require action by not referring to “serious” or “irreversible” as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still “evolving” for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See, First Report of Dr. Sreenivasa Rao Pemmaraju — Special Rapporteur, International Law Commission dated 3-4-1998, paras 61 to 72.)”

¶256

(emphasis in original)

¶257

In such cases which pertain to the protection of environment, thrusting of “onus of proof” on the developer/industrialist in Vellore Citizens' Welfare Forum [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] was also elaborated by the Court in the following manner: (A.P. Pollution Control Board case [A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718] , SCC pp. 734-35, paras 36-38)

¶258

“36. We shall next elaborate the new concept of burden of proof referred to in Vellore case [Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647] at p. 658. In that case, Kuldip Singh, J. stated as follows: (SCC p. 658, para 11) .

¶259

-: 46 :-

¶260

‘(iii) The “onus of proof” is on the actor or the developer / industrialist to show that his action is environmentally benign.’

¶261

It is to be noticed that while the inadequacies of science have led to the “precautionary principle”, the said “precautionary principle” in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, — is placed on those who want to change the status quo (Wynne, “Uncertainty and Environmental Learning: Reconceiving Science and Policy in the Preventive Paradigm” [(1992) 2 Global Environmental Change 111 at p. 123] ). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, “Shifting the Burden of Proof: How the Common Law can Safeguard Nature and Promote an Earth Ethic” [(1990) 20 Environmental Law 891 at p. 898].) (Quoted in “The Status of the Precautionary Principle in

¶262

-: 47 :-

¶263

Australia” [(1998) 22 Harvard Environmental Law Review 509 at p. 547] at pp. 519, 550.)

¶264

The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3-4- 1998, Para 61.)"

¶265

(emphasis in original)"

¶266

The National Green Tribunal issued certain

¶267

directions not only for NCR, Delhi, but also to the cities and towns in the country where the average of ambient air quality during November (as per available data of last year) fell under 'poor' and above category or where air quality was ‘moderate’ or below, and directed that only green crackers be sold and the timings for use and bursting of crackers be restricted. The directions were issued due to aggravated effects during COVID-19. In this regard, the State Government also issued Notification dated 10.11.2020.

¶268

-: 48 :-

¶269

In this context, we may also note that insofar

¶270

as NCR, Delhi is concerned, the total ban on sale and use of all kinds of fire-crackers from mid-night of 09-10th November 2020 to the mid-night of 30-31st December, 2020, was to be reviewed. Subsequently, another Government Order dated 12.11.2020 was also issued. On 12.11.2020, the State Government defined "Green Crackers" and directed sale and use of only green crackers during Deepawali festival in November 2020.

¶271

We have in detail placed reliance on Articles 21, 47, 48A and also 51A(g) of the Constitution, which places a duty not only on the State, but also on every citizen to ensure a pollution-free environment and a duty cast on every citizen to ensure that he or she is not responsible in causing pollution to the environment. The said duty is a fundamental duty under the Constitution. Therefore, this Court is of the opinion that, every citizen should abide by that fundamental duty to ensure that there is no noise pollution caused in the environment, in which the citizen may reside or move about, particularly from fire-crackers.

¶272

-: 49 :-

¶273

We have referred in detail to the judgments of

¶274

the Hon'ble Supreme Court in the context of noise pollution and particularly with regard to the noise pollution from fire-crackers which also result in pollution of the air.

¶275

The concept of precautionary principle in the context of environmental safety as sought to be applied over a period of time and accepted judicially by courts the world over including the Hon'ble Supreme Court of India have been adverted to. We wish to emphasize on the context of precautionary principle, particularly, in the context of noise-pollution and air pollution on account of the use of fire-crackers. We have referred to the directions issued by the Hon'ble Supreme Court from time to time in the matter of pollution caused by fire-crackers which is essentially for NCR, Delhi, would also be applicable to the State of Karnataka mutatis mutandis . The directions issued by the NGT in this regard have also been adverted to. We have also adverted to the interim orders passed by this Court in these matters and the response of the State Government to those interim orders. This is particularly in the context of Corona Virus-COVID19 pandemic raging in the year 2020 and the adverse

¶276

-: 50 :-

¶277

effects of use of fire-crackers on those who are susceptible to the said disease and generally, those who may also become susceptible to other kinds of disease such as SARS, Bronchitis, etc.

¶278

The Hon'ble Supreme Court has also considered the issue of use of fire-crackers in the context of Article 25 of the Constitution, which is right to freedom of conscience and free profession, practice and propagation of religion. In this context, one may also advert to Article 19(1)(g) of the Constitution, as those stake-holders who are engaged in the manufacture, sale, trade and commerce of fire-crackers being adversely impacted by the directions issued by the Apex Court, this Court and NGT, but, ultimately we find that the competing interests of various stake-holders in the context of trade and use of fire-crackers must lean in favour of the health of the citizens of this country, rather than on celebration or expression of feeling through bursting of fire-crackers or trade and commerce in the said goods. Corona VirusCOVID-19 Pandemic which is engulfing the world over resulting in lock-down and gradually opening up of the economy and educational institutions, must be a pointer to

¶279

-: 51 :-

¶280

all of us to ensure that ultimately, the health of the citizens of the country would reflect on the standard of the country. By this, we are not in any way under-estimating or disengaging from economic development or educational standards being enhanced in the country. In our view, all that would be of no consequences if the health of the citizens is poor, degrading or deteriorating. Human resource of a nation is as important as natural resource. It is in this context that the petitioners have sought for a complete ban on the use of fire-crackers.

¶281

We have already adverted to the fact that the fire-crackers have cultural, religious and social significance but the time has now come not to debate, but to realize that there must be sacrificing of all such expression or feelings through use of fire-crackers, feelings of joy, celebration, etc., and it must ultimately yield to environmental protection and elimination of noise pollution and air pollution on account of the use of fire-crackers. This is to improve the health of the citizens and environment of the nation. The seriousness with which these prayers have been sought for by the petitioners must be realized by the State.

¶282

-: 52 :-

¶283

We have already emphasized on the

¶284

precautionary principle applicable to the present cases. Ultimately, we find it is political and executive will of the State to take a bold decision in the matter, keeping in mind the health and safety of the citizens and the environment.

¶285

In our view, while exercising jurisdiction under Article 226 of the Constitution, it is not proper for this Court to take a decision which ultimately would have to be taken by the State, as this Court cannot substitute what the State intends to do. But, the whole object and purpose of passing this lengthy order is only to impress upon the State as to the correct decision that they would have to take in the matter.

¶286

We say no more except directing the respondent/State to consider the prayers made by the petitioners and to take a decision in the matter namely, with regard to the complete ban of fire-crackers in the State within a period of three months from the date of receipt of a certified copy of this order.

¶287

-: 53 :-

¶288

The writ petitions are disposed in the

¶289

aforesaid terms. No Costs.

¶290

Sd/JUDGE

¶291

Sd/JUDGE

¶292

MVS* RK/Ct: R*

Dr Ca a S Vishnu Bharath v. State of Karnataka

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Dr Ca a S Vishnu Bharath v. State of Karnataka

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