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No room yet to overturn firecracker ban

A strict Court refused to lift the ban on crackers, especially during Covid-19, and asked sellers if they understood the deleterious impact on health.

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The Supreme Court on July 23, 2021, dismissed an appeal challenging the order passed by the National Green Tribunal (NGT) banning the sale of firecrackers during Covid-19 in all cities and towns across the country with poor air quality index (AQI).

Senior Advocate PS Narasimha, who appeared for firecracker sellers/dealers, informed the bench of Justices AM Khanwilkar and Sanjiv Khanna that a total ban had been imposed on firecrackers during Covid-19. The Court clarified that the ban was in place only in places where air quality was poor and the ban was only on sales and not on manufacture. “Whatever can be controlled should be controlled,” said the Court.

Advocate Sai Deepak J, representing a seller of firecrackers, argued that as per an IIT Kanpur report, firecrackers are not even in the list of top 15 factors which contribute to air pollution. Justice Khanwilkar remarked: “Do you need IIT to understand that firecrackers impact your health? Ask someone staying in Delhi what happens during Diwali.”

While dismissing the appeals, the Court said that if air quality improves, the authorities may permit sale and use of firecrackers as per the AQI and no clarification or interference was warranted.

On December 2020, the NGT noted in its order that only green crackers would be permitted for Christmas and New Year—between 11:55 pm and 12:30 am—in areas where the AQI was in moderate or below categories. It also directed district magistrates to ensure that firecrackers are not sold and violators would have to pay compensation. The Tribunal speculated that the “right to business is not absolute. There is no right to violate air quality and noise level norms”.

The NGT was particularly concerned about the health of the elderly who were more vulnerable to breathing problems caused by smoke released from crackers that could be life-threatening during the pandemic.

On November 13, 2020, a vacation bench of the Supreme Court did not agree with the Telangana High Court’s view to completely ban the use, manufacture and sale of firecrackers in Telangana for Diwali and other festivals. The bench of Justices AM Khanwilkar and Sanjeev Khanna modified the High Court order in line with the more “comprehensive” directions issued by NGT.

The Supreme Court on November 11, 2020, also refused to reverse a ban on sale or use of firecrackers in West Bengal during the festive month of November, saying that preservation of life should be the top priority in a country faced with a pandemic. The firecracker dealers’ association in the state had filed an appeal before the apex court challenging a Calcutta High Court order of November 5 banning the sale and use of firecrackers as a measure to curb the spread of Covid-19.

Delhi, which often chokes on pollutants from farm fires in Punjab and Haryana in the beginning of winter, and vehicular emissions, was among the first states to ban firecrackers. Last year, at least seven states and Union Territories banned crackers, with another five allowing their bursting only for a limited time.

In October 2017, the Supreme Court had banned firecrackers in Delhi. As a result of this, the industry claimed that it faced losses of Rs 1,000 crore and consequently layoffs. The Court had banned the use and sale of toxic crackers on the basis of a petition filed by two infants, a six-month-old and 14-month-old. They said the air pollution caused by various factors, especially firecrackers, had made Delhi a gas chamber. They pleaded for their right to life. The Court said that the sale of green and improved crackers would be only through licensed traders.

Firecrackers, as well as other types of explosives, are subject to various laws in many countries, although by themselves, they are not usually considered illegal material. It is usually the manufacture, sale, storage and use of firecrackers that are subject to laws, including safety requirements for manufacture and permit to sell or store.

Firecrackers are legal and anyone 18 and above can buy them without a licence. It was after 1400 CE that gunpowder started being utilised in Indian warfare. India’s first fireworks factory was established in Calcutta during the 19th century. After independence, Sivakasi in Tamil Nadu emerged as a fireworks hub.

The Global Burden of Disease Study of 2017 analysed in a report by The Lancet indicated that 76.8 percent of Indians are exposed to higher ambient particulate matter over 40 μg/m3, which is significantly above the national limit recommended by national guidelines on ambient air pollution.

Also Read: Vacancy woes in the Supreme Court

After the NGT ordered a ban in the NCR region on the sale and use of crackers in 2020, the Council for Scientific and Industrial Research developed “green crackers” that used less polluting raw materials. Several states have either banned firecrackers or limited their time, noise and types that can be used. Nonetheless, many firecrackers were used to celebrate Diwali in 2020, soon after which Delhi’s air pollution was over nine times the level that the WHO considers safe.

The Air (Prevention and Control of Pollution) Act was passed in 1981 to regulate air pollution but has failed to reduce it because of poor enforcement of the rules. The government in 2015, together with IIT Kanpur, launched the National Air Quality Index (AQI). In 2019, India launched “The National Clean Air Programme” with a tentative national target of 20 percent to 30 percent reduction in PM2.5 and PM10 concentrations by 2024, considering 2017 as the base year for comparison. In December 2019, IIT Bombay, in partnership with the McKelvey School of Engineering of Washington University, launched the Aerosol and Air Quality Research Facility to study air pollution in India.

India is still a long way off from clean air as awareness and enforcement of laws are needed.

—By Shivam Sharma and India Legal News Service

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