Managing winter smog in the National Capital Region (NCR) has occupied the Supreme Court since 2015. Three interim orders — in November 2016, September 2017 and October 2017— each of which changes the status quo, imposing commercial costs, illustrate the limitations of the judicial approach while balancing commercial interests with public health concerns.
Delhi and Sivakasi, 2,650 km away in Tamil Nadu, are symbiotically joined. Sivakasi produces three-fourths of India’s firecrackers. Delhi and its surrounding areas are the prime consumers. Consider that 40 per cent of 610 permanent licensees for selling firecrackers are located here. Delhi also licences 968 temporary fireworks retailers. The NCR’s stock of fireworks is estimated at 6,000 metric tons — enough to fill 600 trucks.
The reason why a substantive decision on the sale of firecrackers remains elusive is that the Central Pollution Control Board (CPCB) has failed to define the permissible ingredients for firecrackers and their volumes thereof. Without a standard regulating manufacture, the task of optimising across public health concerns; preserving employment and nurturing business potential becomes, at best, an approximation with avoidable costs. Only blunt options like banning the sale of firecrackers present themselves. The actual public health benefit of such easures are uncertain. But irreparable harm to businesses and distress to workers is certain.
Back in November 2016, during the Diwali season, Delhi was enveloped in smog. CPCB air quality reports indicated that in 2015 and 2016, the level of pollution had spiked during and after Diwali. Pitampura, a densely populated area in Delhi, suffered an increase of pollution by four times in 2015 and more than 10 times in 2016. Dealing with an emergency, the Supreme Court suspended all licences for the sale of firecrackers in the NCR on November 11, 2016. It also directed the CPCB to submit, within three months, a comprehensive report on the air pollution impacts of bursting firecrackers. The implied strategy was clear. Take stern action in keeping with the magnitude of the crisis and incentivise manufacturers and sellers of fireworks to negotiate with the government for setting standards. Since Diwali was already over, the commercial dislocation caused by the order was minimal.
The CPCB has yet to submit the report due on January 11, 2017, on the air pollution impact. Meanwhile, prohibitions on using antimony, lithium, mercury, arsenic and lead compounds were imposed piecemeal by the Supreme Court on July 31, 2017 and on strontium chromate on September 13, 2017. The court is clearly working hard despite executive intransigence.
Gearing up for the festival season in 2017, the Sivakasi manufacturers and suppliers requested the Supreme Court on July 5, 2017 for a modification of the suspension of permanent licences.
The Supreme Court recognised the harm being caused to 300,000 livelihoods, despite the absence of any proven link between the bursting of firecrackers and hazardous air pollution.
The National Green Tribunal has listed seven sources of air pollution in NCR. Firecrackers are not one of them. A January 2016 IIT Kanpur report had also not listed firecrackers as among the major sources of air pollution in Delhi.
On September 13, 2017, the Supreme Court allowed a partial lifting of the suspended licences, to enable the accumulated stock of fireworks to be sold in NCR or to be transferred out. To avoid any reoccurrence of a fait accompli, it directed no more fireworks should be transported into the NCR. More significantly, it directed that the number of temporary licences in NCR be halved in 2017, and both permanent and temporary licences further halved in 2018. Taking a cue from the 1999 experience in defining noise pollution standards for firecrackers, it constituted a multi-stakeholder, technical committee chaired by the CPCB to report on the impact of bursting firecrackers on air quality. By all accounts this was a fair and forward-looking order mitigating the commercial harm caused by regulatory uncertainty while seeking to reduce the public health impact.
Inexplicably, on October 9, a three-judge Supreme Court bench put the September 2017 order in abeyance till November 1. The intention was clearly to postpone the restitution of sale till after Diwali, thereby nullifying the positive commercial benefits. The court invoked the “precautionary principle” in the public interest. This principle advocates abundant caution if the potential for irreparable harm exists. Thereby, the significant, negative commercial impact of the order simply became inevitable collateral damage.
Could the regulatory process have been managed better? First, it goes without saying, that this is yet another instance of the government purposefully abdicating politically sensitive, inconvenient regulatory ground. Commercial uncertainty and public health costs are bound to escalate when this happens.
Second, could the Supreme Court have been more consistent? Yes, it could have limited its initial intervention in 2016 to simply nudge the executive to introduce safe manufacturing standards, including by using back channels for the purpose. Possibly, its strained relationship with the government during this period, over the judicial appointments issues, may have constrained it from using this practical tactic to resolve the problem.
Optionally, the court could have issued a nuanced order, suspending temporary licences in NCR to restrict retail sale; allowing permanent licences to continue, but at a progressively decreasing scale and directing the executive to limit the bursting of firecrackers to collective displays at pre-designated sites. This would have reduced the quantum of firecrackers burst; minimised the commercial harm and preserved the incentive for firecracker manufacturers to actively pursue formulation of safe manufacturing standards. Despite the storm in the social media on encroachment of Hindu religious rights by limiting firecrackers, the public by and large is in favour of clean air in a cleaner India.
Finally, the court could have explored the manufacture of “green” firecrackers. Before gunpowder was invented in the 10th century, the Chinese made them by heating bamboo. Northeast India is resplendent with bamboo, just waiting to be used. China might also be happy to modernise this sustainable technology and commercialise it under the Make in India initiative. Green “bangers” can preserve the thrill of Diwali, only minus the smog.