Citation: Arjun Gopal & Ors. v. UOI & Ors, (2017) 1 SCC 412.
Coram: A Bhushan, J. and A Sikri J.
Bench: Supreme Court of India
Date of Judgment: 23/10/2018
FACTS
The field of environmental law which has generated keen legal interest in the recent past is still riddled with certain judgments which fail to consider the due implications and severity of environmental degradation in light of the inconsequential factors. The judgment of Arjun Gopal & Ors. v. UOI & Ors.[i] is a fitting example of this glaring failure of the Supreme Court to take preemptive and preventive measures to safeguard the environment. The writ petition, originally filed in 2015 on behalf of three infants, sought a blanket ban on the sale and use of firecrackers in the National Capital Region (NCR) in light of the effects of the deteriorating air quality in and around Delhi.
The petitioners contended that although the NCR suffers from reduced air quality in the winter months, the same is further expounded by the incessant use of firecrackers during the festivals of Diwali and Dussehra. The Court, however, did not take any resolute measures until after the Diwali of 2016 when it became cognisant of the resulting severity of the air quality standards. At the time, Delhi's air quality was twenty-nine times above the World Health Organisation Standards and was consequently termed the worst in the world.
Over the course of the next year, the orders of the Court reflected a pendulum swing approach as it initially suspended all such licenses which permitted sale of fireworks within the territory of NCR. The Court rationalised that even though there are no conclusive studies proving fireworks to be the sole determinant of the deteriorating air quality, the ill effects of the same are glaring. Nevertheless, this blanket ban was short-lived as the Court, modifying the previous order took the following position: “In our considered opinion, continuing the suspension of licences might be too radical a step to take for the present – a graded and balanced approach is necessary that will reduce and gradually eliminate air pollution in Delhi and in the NCR caused by the bursting of fireworks.”[ii] Therefore, licenses for the sale of fireworks were reinstated along with the issuance of certain guidelines which prohibited the transport of new fireworks into Delhi and allowed traders to only exhaust their available stock.
It did not take long for the pendulum to swing in the other direction with the Court suspending the duly reinstated licenses for sale of fireworks once again. The Bench, contrary to its previous observations, noted that “there is direct evidence of deterioration of air quality at alarming levels, which happens every year. Burning of these firecrackers during Diwali in 2016 had shot up ‘Particulate Matter’ levels by three times, making Delhi the worst city in the world insofar as air pollution is concerned. Direct and immediate cause, thereof, was the burning of crackers during Diwali.”
CONTENTIONS ADVANCED
The Respondents, consisting mainly of manufacturers of crackers, Manufacturers’ Association and License Holders and, the state of Tamil Nadu, relied upon three fundamental contentions to justify the continued sale of firecrackers in the NCR. The first contention was based upon the fundamental right to carry on business provided under Article 19(1)(g) of the Constitution which the Court dismissed upon the applicability of the principle of “res extra commercium” which refers to things beyond commerce, i.e., which cannot be brought or sold, such as public roads, rivers, titles of owners, outlawed goods and services, etc.[iii]
The second argument raised by the respondent was that there were no sufficient studies as to the extent of contribution of burning of crackers towards air and noise pollution and whether it posed such a serious problem warranting ban. The Court, while rejecting this contention, and relying upon the judgments of Vellore Citizens Welfare Forum vs Union Of India & Ors[iv] and A.P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Ors.[v] stated that the precautionary principle was applicable in the field of environmental laws, which wherein a lack of definite scientific study as to the impact of the activity is no reason for inaction.
Lastly, the Respondent argued that “the revenue generated from the manufacturing and sale of fireworks is to the tune of Rs. 6,000 crores per annum. Further, this industry has given employment to five lakh families. Such revenue to the State as well as employment to a large number of workers cannot be put in jeopardy by imposing a total ban. Therefore, they emphasised on adopting a balanced approach.” Taking into consideration the social, economic and environmental implications of the manufacturing and distribution of fireworks, the Court, through its judgment dated 23/10/2018, adopted a balanced approach allowing sale and manufacture only of reduced emission green fireworks (Safe water release crackers) and imposed a complete ban on all other varieties while restricting the hours for the same from 8:00 p.m. till 10:00 p.m. only. Furthermore, if violation of these guidelines were reported in any locality, the Station House Officer (SHO) of the concerned Police Station of the area shall be held personally liable for such violation, amounting to contempt of Court, for which such SHO(s) would be proceeded against.
CONCLUSION
The judgment, however, reflects a grave failure of the Indian Judiciary to preemptively foresee the critical implications of environmental degradation. First, the Court undermined the effects of fireworks as a contributory factor towards dwindling air quality for two consecutive years. The failure to act in 2016 itself, in light of manifest evidence, led to irreparable damage to the environment which could have been prevented. Second, the pendulum swing approach of the Court with contradictory orders being passed fortnightly only prolonged the inevitable as the state government of Delhi has observed a blanket ban on the sale and storage of fireworks since 2019, rendering the judgment futile. Third, the Court’s application of the Precautionary Principle was erroneous as the bench failed to duly consider established studies addressing the harmful health effects of fireworks dating back to 2007. Fourth, the Court did acknowledge certain preventive measures such as community showcase of fireworks, however, no binding parameters were set regarding this, resulting in acute erosion of efficacy of such suggestions and, lastly, the Court’s insistence upon showcasing a balanced approach made the judgment self-shackled and ineffective. Therefore, the judgment should be considered a precedent of untimely action of the Court and its manifest consequences.
[i] Arjun Gopal & Ors. v. UOI & Ors, (2017) 1 SCC 412.
[ii] Id.
[iii] (2017, 04). Res Extra Commercium india.lawi.asia Retrieved 10, 2021, from https://india.lawi.asia/res-extra-commercium/
[iv] Vellore Citizens Welfare Forum vs Union Of India & Ors, 1996 5 SCR 241.
[v] A.P. Pollution Control Board vs Prof. M.V. Nayudu (Retd.) & Ors., 1999 2 SCC 718.
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