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CASE NO.:

Writ Petition (civil) 72 of 1998

PETITIONER:

In Re: Noise Pollution \026 Restricting use of loudspeakers

RESPONDENT:

................

DATE OF JUDGMENT: 18/07/2005

BENCH:

CJI R.C. LAHOTI & ASHOK BHAN

JUDGMENT:

J U D G M E N T

Implementation of the Laws for restricting use of loudspeakers and high volume

producing sound systems

WITH

CIVIL APPEAL NO. OF 2005

[Arising out of SLP (C) No. 21851/2003]

Forum, Prevention of Envn. & Sound Pollution \005Appellant

Versus

Union of India & Anr. \005Respondents

R.C. Lahoti, CJI

These two matters before us raise certain issues of far-

reaching implications in day-to-day life of the people in India

relatable to noise pollution vis-a-vis right to life enshrined in Article

21 of the Constitution as interpreted in its wide sweep by the

constitutional courts of the country. Though a limited grievance

was raised to begin with but several intervenors and interlocutory

applications enhanced the scope of hearing and the cases were

heard in a very wide perspective centering around Article 21 of the

Constitution. Several associated and incidental issues have also

been gone into.

Facts in W.P.(C) No.72/98

CWP No. 72/98 is filed by Shri Anil K. Mittal, an engineer by

profession moving the Court pro bono publico. The immediate

provocation for filing the petition was that a 13 year old girl was a

victim of rape (as reported in newspapers of January 3, 1998). Her

cries for help sunk and went unheard due to blaring noise of music

over loudspeaker in the neighbourhood. The victim girl, later in the

evening, set herself ablaze and died of 100% burn injuries. The

petition complains of noise created by the use of the loudspeakers

being used in religious performances or singing bhajans and the like

in busy commercial localities on the days of weekly offs. Best

quality hi-fi audio systems are used. Open space, meant for use by

the schools in the locality, is let out for use in marriage functions

and parties wherein merry making goes on with hi-fi amplifiers and

loudspeakers without any regard to timings. Modern residents of

the locality organize terrace parties for socializing and use high

capacity stereo systems in abundance. These are a few instances

of noise pollution generated much to the chagrin of students taking

examinations who find it utterly difficult to concentrate on studies

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before and during examinations. The noise polluters have no

regard for the inconvenience and discomfort of the people in the

vicinity. Noise pollution has had its victims in the past and

continues to have victims today as well. The petitioner seeks to

invoke the writ jurisdiction of this Court so that there may not be

victims of noise pollution in future. The principal prayer is that the

existing laws for restricting the use of loudspeakers and other high

volume noise producing audio-video systems, be directed to be

rigorously enforced.

Facts in C.A. No. of 2005 (Arising out of S.L.P.(C)

No.21851/03)

Leave granted.

The Government of India framed and published Noise

Pollution Control and Regulation Rules, 1999. On 11.10.2002 the

Government of India brought in an amendment in the Rules. The

amendment empowered the State Government to permit use of

loudspeaker or public address system during night hours (between

10 pm and 12 pm mid-night) on or during the cultural or religious

occasions for a limited period not exceeding 15 days. Vires of this

amendment were put in issue by the appellant submitting that the

provision is not accompanied by any guidelines and is capable of

being misused to such an extent that the whole purpose behind

enacting the Rules itself may be defeated. The High Court of Kerala

found the petition devoid of any merit and directed the petition to

be dismissed. Feeling aggrieved, this petition has been filed by

special leave.

The special leave petition and, in particular, the writ petition

raise issues of wide ranging dimensions relating to noise pollution

and the implications thereof. Taking cognizance of the matters as

public interest litigation, the Court vide its order dated 6.4.98,

directed the cause title of the petition filed by Shri Anil Kumar Mittal

to be amended as "In re. Noise Pollution\027Implementation of the

Laws for Restricting Voice of Loudspeakers and High Volume

Producing Sound System". The Court also appointed Shri Jitender

Sharma, Senior Advocate and Shri Pankaj Kalra, Advocate to

appear as Amicus Curiae. Both the learned counsel were present in

the Court and accepted the assignment. Unfortunately, Shri Pankaj

Kalra, Advocate expired during the pendency of the proceedings.

Shri Sandeep Narayan, Advocate has appeared in his place and

assisted the Court.

The Union of India and the Central Pollution Control Board

have not opposed the prayer made in the writ petition and the

appeal and have rather supported the writ petitioner. Valuable

inputs have been provided by the Central Pollution Control Board in

the form of pleadings, authentic publications, research documents

and other papers. The Union of India, while not opposing the relief

sought for by the petitioner, has pointed out several practical

difficulties in completely regulating and where necessary,

eliminating noise pollution.

Though, as we have already noted, the sweep of hearing in

these matters has been very wide, the principal thrust of the writ

petitioner and the learned Amicus has been directed towards noise

created by firecrackers, loudspeakers used __ by political parties, at

religious places and on religious and social occasions or festivals.

Hindu Bokta Jana Sabai, Tamil Nadu Fireworks and Amorces

Manufacturers Association, Universal Society Performance, All India

Federation of Fireworks Association, Indian Fireworks Manufacturers

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Association and some individuals have sought for interventions. It

is not necessary to notice the contents of the intervention

applications in detail. Suffice it to say that the reliefs sought for in

the applications are conflicting. Some of the intervenors have

sought for:-

(i) noise created by horns of engines, pressure horns in

automobiles, loudspeakers, denting painting of cars,

particularly, in residential areas and from unauthorized

premises being prohibited;

(ii) use of loudspeakers in religious places such as temples,

mosque, churches, gurudwaras and other places being

discontinued or at least regulated;

(iii) firecrackers burst during Diwali festival and on other

occasions for fun or merry making being prohibited

completely, if the noise created exceeds certain decibels and

being so regulated as to prevent bursting during night hours.

Other set of intervenors seeks such like reliefs:-

(i) granting exemption in favour of bursting of firecrackers

on or during festivals without regard to the limit of time as

such bursting of firecrackers is associated with the

performance of ceremonies relating to religion or social

occasions;

(ii) laying down mechanism for regulating the very

manufacturing of firecrackers so that such firecrackers as

unreasonably enhance noise pollution may be kept away from

entering the markets and playing into the hands of the

people.

It is obvious that during the course of the hearing the scope

got enlarged and the Court has been addressed on very many

issues from very many angles.

Article 21 of the Constitution guarantees life and personal

liberty to all persons. It is well settled by repeated

pronouncements of this Court as also the High Courts that right to

life enshrined in Article 21 is not of mere survival or existence. It

guarantees a right of persons to life with human dignity. Therein

are included, all the aspects of life which go to make a person's life

meaningful, complete and worth living. The human life has its

charm and there is no reason why the life should not be enjoyed

along with all permissible pleasures. Anyone who wishes to live in

peace, comfort and quiet within his house has a right to prevent the

noise as pollutant reaching him. Noone can claim a right to create

noise even in his own premises which would travel beyond his

precincts and cause nuisance to neighbours or others. 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.

Those who make noise often take shelter behind Article

19(1)A pleading freedom of speech and right to expression.

Undoubtedly, the freedom of speech and right to expression are

fundamental rights but the rights are not absolute. 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

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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. Article 19(1)A cannot be pressed into

service for defeating the fundamental right guaranteed by Article

21. We need not further dwell on this aspect. Two decisions in this

regard delivered by High Courts have been brought to our notice

wherein the right to live in an atmosphere free from noise pollution

has been upheld as the one guaranteed by Article 21 of the

Constitution. These decisions are Free Legal Aid Cell Shri Sugan

Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and

others, AIR (2001) Delhi 455 (D.B.) and P.A. Jacob v.

Superintendent of Police, Kottayam, AIR (1993) Kerala 1. We

have carefully gone through the reasoning adopted in the two

decisions and the principle of law laid down therein, in particular,

the exposition of Article 21 of the Constitution. We find ourselves

in entire agreement therewith.

The present cases provide an opportunity for examining

several questions, such as what is noise? What are its adverse

effects? Whether noise pollution runs in conflict with the

fundamental rights of the people? And what relief can be allowed by

way of directions issued in public interest?

I

Noise \026 what it is?

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 have on unwilling ears."

Noise is defined as unwanted sound. Sound which pleases the

listeners is music and that which causes pain and annoyance is

noise. At times, what is music for some can be noise for others .

Section 2(a) of the Air (Prevention and Control of Pollution)

Act, 1981, includes noise in the definition of 'air pollutant'.

Section 2(a) \026 "air pollutant" means 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.

According to Encyclopaedia Britannica : "In acoustics noise is

defined as any undesired sound."

According to Chambers 20th Century Dictionary , noise

means\027 Sound especially of loud, harsh or confused kind; a

sound of any kind; an over loud or disturbing sound; frequent or

public talk.

In Chambers 21st Century Dictionary, the definition of noise

has undergone a change. Noise pollution stands carved out as a

phrase separately from noise. The two are defined as under :

"Noise \026 a sound; a harsh disagreeable sound, or such sound; a

din. pollution \026 an excessive or annoying degree of noise in a

particular area, e.g. from traffic or aeroplane engines."

"Pollution" is a noun derived from the verb "pollute". Section

2(c) of the Environment (Protection) Act, 1986 defines

"environmental pollution" to mean the presence in the environment

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of any environmental pollutant. Section 2 (b) of the said Act 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.

Thus, the disturbance produced in our environment by the

undesirable sound of various kinds is called " noise pollution".

II

Noise as nuisance and health hazard

Noise is more than just a nuisance. It constitutes a real and

present danger to people's health. Day and night, at home, at work,

and at play, noise can produce serious physical and psychological

stress. Noone is immune to this stress. Though we seem to adjust

to noise by ignoring it, the ear, in fact, never closes and the body

still responds-sometimes with extreme tension, as to a strange

sound in the night.

Noise is a type of atmospheric pollution. It is a shadowy

public enemy whose growing menace has increased in the modern

age of industrialization and technological advancement. Although a

soft rhythmic sound in the form of music and dance stimulates

brain activities, removes boredom and fatigue, but its

excessiveness may prove detrimental to living things. Researches

have proved that a loud noise during peak marketing hours creates

tiredness, irritation and impairs brain activities so as to reduce

thinking and working abilities. Noise pollution was previously

confined to a few special areas like factory or mill, but today it

engulfs every nook and corner of the globe, reaching its peak in

urban areas. Industries, automobiles, rail engines, aeroplanes,

radios, loudspeakers, tape recorders, lottery ticket sellers, hawkers,

pop singers, etc., are the main ear contaminators of the city area

and its market place. The regular rattling of engines and

intermittent blowing of horns emanating from the caravan of

automobiles do not allow us to have any respite from irritant noise

even in suburban zones .

In the modern days noise has become one of the major

pollutants and it has serious effects on human health. Effects of

noise depend upon sound's pitch, its frequency and 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 the madness of people.

However, noises, which are melodious, whether natural or

man-made, cannot always be considered as factors leading to

pollution.

Noise can disturb our work, rest, sleep, and communication.

It can damage our hearing and evoke other psychological, and

possibly pathological reactions. However, because of complexity,

variability and the interaction of noise with other environmental

factors, the adverse health effects of noise do not lend themselves

to a straightforward analysis .

Hearing Loss

"Deafness, like poverty, stunts and deadens its victims."- says

Helen Keller. Hearing loss can be either temporary or permanent.

Noise-induced temporary threshold shift (NITTS) is a temporary

loss of hearing acuity experienced after a relatively short exposure

to excessive noise. Pre-exposure hearing is recovered fairly rapidly

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after cessation of the noise. Noise induced permanent threshold

shift (NIPTS) is an irreversible loss of hearing that is caused by

prolonged noise exposure. Both kinds of loss together with

presbyacusis, the permanent hearing impairment that is

attributable to the natural aging process, can be experienced

simultaneously .

NIPTS occurs typically at high frequencies, usually with a

maximum loss at around 4,000 Hz. It is now accepted that the risk

of hearing loss is negligible at noise exposure levels of less than 75

dB(A) Leq (8-hr). Based on national judgments concerning

acceptable risk, many countries have adopted industrial noise

exposure limits of 85 dB(A) +5 dB(A) in their regulations and

recommended practices . [N.B.- Hz. is abbreviation of Hertz which

is the unit of frequency, equal to one cycle per second. Hertz (Hz)

is the name, by international agreement, for the number of

repetitions of similar pressure variations per second of time; this

unit of frequency was previously called "cycles per second" (cps or

c/s)].

Interference with Communication

The interference of noise with speech communication is a

process in which one of two simultaneous sounds renders the other

inaudible. An important aspect of communication interference in

occupational situations is that the failure of workers to hear warning

signals or shouts may lead to injury. In offices, schools and homes,

speech interference is a major source of annoyance .

Disturbance of sleep.

Noise intrusion can cause difficulty in falling asleep and can

awaken people who are asleep .

Annoyance

Noise annoyance may be defined as a feeling of displeasure

evoked by noise. The annoyance inducing capacity of a noise

depends upon many of its physical characteristics and variations of

these with time. However, annoyance reactions are sensitive to

many non-acoustic factors of a social, psychological, or economic

nature and there are considerable differences in individual reactions

to the same noise .

Effect on performance

Noise can change the state of alertness of an individual and

may increase or decrease efficiency. Performance of tasks involving

motor or monotonous activities is not always degraded by noise. At

the other extreme, mental activities involving vigilance, information

gathering and analytical processes appear to be particularly

sensitive to noise .

Physiological Effects

It has been determined that noise has an explicit effect on the

blood vessels, especially the smaller ones known as pre-capillaries.

Overall, noise makes these blood vessels narrower. Noise causes

the peripheral blood vessels in the toes, fingers, skin and abdominal

organs to constrict, thereby decreasing the amount of blood

normally supplied to these areas .

Possible clinical manifestations of stress concomitant with

noise are : (i) galvanic skin response, (ii) increased activity related

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to ulcer formation, (iii)changes in intestinal motility, (iv)changes in

skeletal muscle tension, (v) subjective response irritability

perception of loudness, (vi)increased sugar, cholesterol &

adrenaline, (vii)changes in heart rate, (viii)increased blood

pressure, (ix) increased adrenal hormones, (x)vasoconstriction. Not

only might there be harmful consequences to health during the

state of alertness, but research also suggests effects may occur

when the body is unaware or asleep. (Source; NOISE EFFECTS

HANDBOOK, A Desk Reference to Health and Welfare Effects of

Noise By Office of the Scientific Assistant, Office of Noise

Abatement and Control, U.S. Environmental Protection Agency,

October 1979, Revised July 1981)

The investigations have revealed that the blood vessels which

feed the brain, dilate in the presence of noise. This is the reason

why headaches result from listening to persistent high noise .

Field studies have also been conducted on various other

groups such as people living near airports, and school children

exposed to traffic noise, showing that there may be some risk for

these people. In addition, laboratory studies on animals and

humans have demonstrated a relationship between noise and high

blood pressure. Other studies have shown that noise can induce

heart attacks .

Prolonged chronic noise can also produce stomach ulcers as it

may reduce the flow of gastric juice and change its acidity.

With what other stress effects can noise be associated?

Stress can be manifested in any number of ways, including

headaches, irritability, insomnia, digestive disorders, and

psychological disorders. Workers who are exposed to excessive

noise frequently complain that noise just makes them tired.

Quite a few field studies have been done on workers in

Europe, examining the relationship between noise and illness. In

these studies, noise has been related to the following:

General morbidity (illness); Neuropsychological disturbances___

Headaches, Fatigue, Insomnia, Irritability, Neuroticism;

Cardiovascular system disturbances___ Hypertension, Hypotension,

cardiac disease; Digestive disorders___ Ulcers, Colitis; Endocrine and

biochemical disorders;

Noise and the unborn.

There is ample evidence that environment has a role in

shaping the physique, behavior and function of animals, including

men, from conception and not merely from birth. The fetus is

capable of perceiving sounds and responding to them by motor

activity and cardiac rate change .

Special Effects on unborn, children and human beings

generally

The fetus is not fully protected from noise. Noise may

threaten fetal development. Noise has been linked to low birth

weights. Levels of noise which do not interfere with the perception

of speech by adults may interfere significantly with the perception

of speech by children as well as with the acquisition of speech,

language, and language-related skills. Because they are just

learning, children have more difficulty in understanding language in

the presence of noise than adults do. Reading ability also may be

seriously impaired by noise. Apart from children, the noise

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pollution causes several adverse effects on human beings generally.

Some of these are: (i) hearing loss, (ii) nonauditory physiological

response such as stress, arousal response, cardiovascular effects

etc.,(iii) communication interference, (iv) performance interference,

and (v) sleep disturbance and so on.

III

Sources of Noise Pollution.

Noise pollution like other pollutants is also a by-product of

industrialization, urbanization and modern civilization.

Broadly speaking, the noise pollution has two sources, i.e.

industrial and non-industrial. The industrial source includes the

noise from various industries and big machines working at a very

high speed and high noise intensity. Non-industrial source of noise

includes the noise created by transport/vehicular traffic and the

neighbourhood noise generated by various noise pollution can also

be divided into the categories, namely, natural and manmade.

Most leading noise sources will fall into the following

categories: road traffic, aircraft, railroads, construction, industry,

noise in buildings, and consumer products.

1. Road traffic noise

Noise from the motors and exhaust systems of large trucks

provides the major portion of highway noise impact, and provides a

potential noise hazard to the driver as well. In addition, noise from

the interaction of tyres with the roadway is generated by trucks,

buses, and private autos.

In the city, the main sources of traffic noise are the motors

and exhaust systems of autos, smaller trucks, buses, and

motorcycles. This type of noise can be augmented by narrow

streets and tall buildings, which produce a "canyon" in which traffic

noise reverberates.

2. Aircraft noise

Nowadays, the problem of low-flying military aircraft has

added a new dimension to community annoyance, as the nation

seeks to improve its "nap-of-the-earth" warfare capabilities. In

addition, the issue of aircraft operations over national parks,

wilderness areas, and other areas previously unaffected by aircraft

noise has claimed national attention over recent years.

3. Noise from railroads

The noise from locomotive engines, horns and whistles, and

switching and shunting operations in rail yards can impact

neighbouring communities and railroad workers. For example, rail

car retarders can produce a high-frequency, high-level screech that

can reach peak levels of 120 dB at a distance of 100 feet which

translates to levels as high as 138 or 140 dB at the railroad

worker's ear.

4. Construction noise

The noise from construction of highways, city streets, and

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buildings is a major contributor to the urban scene. Construction

noise sources include pneumatic hammers, air compressors,

bulldozers, loaders, dumptrucks (and their back-up signals), and

pavement breakers.

5. Noise in industry

Although industrial noise is one of the less prevalent

community noise problems, neighbours of noisy manufacturing

plants can be disturbed by sources such as fans, motors, and

compressors mounted on the outside of buildings. Interior noise can

also be transmitted to the community through open windows and

doors, and even through building walls. These interior noise sources

have significant impacts on industrial workers, among whom noise-

induced hearing loss is unfortunately common.

6. Noise in buildings

Apartment dwellers are often annoyed by noise in their

homes, especially when the building is not well designed and

constructed. In this case, internal building noise from plumbing,

boilers, generators, air conditioners, and fans, can be audible and

annoying. Improperly insulated walls and ceilings can reveal the

sound of amplified music, voices, footfalls, and noisy activities from

neighbouring units. External noise from emergency vehicles, traffic,

refuse collection, and other city noises can be a problem for urban

residents, especially when windows are open or insufficiently

glazed.

7. Noise from consumer products

Certain household equipment, such as vacuum cleaners and

some kitchen appliances have been and continue to be

noisemakers, although their contribution to the daily noise dose is

usually not very large.

IV

Noise pollution in the special context of Fireworks.

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, 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 .

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 of India.

It has been held in the case of "Om Birangana Religious

Society v. State, 100 CWN 617" that the "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". Because of the tremendous

sound and noise, the citizens cannot exercise all these fundamental

rights.

It has been seen that firecrackers noise is an impulsive noise

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and is hazardous. Bursting of a firecracker near the ear can lead

sometimes to non-recoverable hearing loss.

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.

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.

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 .

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 .

The percentage of violation in L.eq. 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 . [N.B. \027 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.]

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.

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 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.

V

Methodology adopted in other countries for noise pollution

control.

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Different countries of the World have enacted different

legislations to control the noise pollution. For Example, in England

there is a Noise Abetment Act, 1960 Section 2 of this Act provides

that loudspeakers should not be operated between the hours of

9:00 in the evening and 8:00 in the following morning for any

purpose and at any other time for purpose of advertisement and

entertainment, trade or business. Control on Pollution Act of 1974,

contains provisions for controlling noise pollution and it provides

noise to be actionable must amount to nuisance in the ordinary

legal sense. Section 62 of the English Control of Pollution Act, 1974,

operates as perfect control for 'Street Noise'. This provision has

been defined as a highway and any other road, footway or square

or court which is for the time being open to public. In Japan there is

Anti Pollution Basic Law, which helps to control the pollution

including noise pollution.

A few of the notable legislations may be mentioned

illustratively.

Noise Act 1996- U.K.

This Act makes provision about noise emitted from dwellings

at night; about the forfeiture and confiscation of equipment used to

make noise unlawfully; and for connected purposes. The kind of

complaint referred to is one made by any individual present in a

dwelling during night hours that excessive noise is being emitted

from another dwelling. "Night hours" means the period beginning

with 11p.m. and ending with 7 a.m. The Act provides for the

service of a notice on the offender by the prescribed officer if he

thinks that the noise being emitted is more than the permissible

limits.

In cases where the noise level does not come down in spite of

the notice being served, the officer can seize such equipments

which in his opinion are the source of such noise.

Noise and Statutory Nuisance Act 1993

An Act to make provision for noise in a street to be a

statutory nuisance; to make provision with respect to the operation

of loudspeakers in a street; to make provision with respect to

audible intruder alarms; to make provision for expenses incurred by

local authorities in abating, or preventing the recurrence of, a

statutory nuisance to be a charge on the premises to which they

relate; and for connected purposes.

The US Noise Pollution and Abatement Act, 1970 is an

important legislation for regulating control and abatement of noise.

Under this Law the environment protection agency, acting through

the office of Noise Abatement and Control, holds public meetings in

selected cities to compile information on noise pollution.

The Public Health And Welfare:- Chapter 65- Noise

Control(US)

The Congress declares that it is the policy of the United

States to promote an environment for all Americans free from noise

that jeopardizes their health or welfare. To that end, it is the

purpose of this chapter to establish a means for effective

coordination of Federal research and activities in noise control, to

authorize the establishment of Federal noise emission standards for

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products distributed in commerce, and to provide information to the

public respecting the noise emission and noise reduction

characteristics of such products.

The Act further provides for \026

1. Identification of major noise sources

2. Noise emission standards for products distributed in commerce

3. Labeling

4. Quiet communities, research, and public information

5. Development of low-noise-emission products

6. Motor carrier noise emission standards

Noise Regulation Law-Japan.

The purpose of this Law is to preserve living environment and

contribute to protection of the people's health by regulating noise

generated by the operation of factories and other types of work

sites as well as construction work affecting a considerable area, and

by setting maximum permissible levels of motor vehicle noise.

The prefectural governor shall designate concentrated

residential areas, school and hospital zones, and other such areas

in which it is deemed necessary to protect the living environment of

the residents from noise, as areas subject to the regulation of noise

produced by specified factories and specified construction work.

The prefectural governor, while designating the areas

pursuant to Paragraph 1 of the preceding Article, shall establish

regulatory standards for specified hours and zones of said areas

within the scope of the standards set forth by the Director General

of the Environment Agency according to the necessary degree of

noise control in regard to specified factories for specified hours and

zones.

Persons installing specific facilities are liable to report the

same to the prefectural governor within 30 days.

The governor has the powers to order change in the outlay of

the factory when they do not confer to the noise regulations.

Any party who plans to undertake construction projects which

involve specified construction work in designated areas, shall file a

report with the prefectural governor no later than seven (7) days

prior to the beginning of said construction.

The prefectural governor shall be responsible for the

monitoring of noise levels in designated areas.

For the regulation on noise caused by announcement through

the use of loudspeakers and noise emitted during the night time

operation of bars and restaurants, local government shall take

measures necessary to protect the living environment, including

restrictions on operating hours, in accordance with the local

physical and social conditions.

The regulations also prescribe the permissible noise levels for

the various areas, as well as the time periods between which noise-

emitting machines can be used.

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Law of the People's Republic of China on Prevention and

Control of Pollution From Environmental Noise

(adopted on October 29, 1996)

This Law is enacted for the purpose of preventing and

controlling environmental noise pollution, protecting and improving

the living environment, ensuring human health and promoting

economic and social development.

For purposes of this Law, "environmental noise" means the

sound that is emitted in the course of industrial production,

construction, transportation and social activities and that impairs

the living environment of the neighbourhood.

The competent administrative department for environmental

protection under the State Council shall, in accordance with the

national standards for acoustic environmental quality and the

State's economic and technological conditions, fix national limits for

environmental noise emission.

Every project under construction, renovation or expansion

must conform to the regulations of the State governing

environmental protection.

The industrial noise emitted to the living environment of the

neighbourhood within an urban area shall be kept within the limits

set by the State on emission of environmental noise within the

boundary of an industrial enterprise.

The construction noise emitted to the living environment of

the neighbourhood within an urban area shall be kept within the

limits set by the State on the emission of environmental noise

within the boundary of a construction site.

It is forbidden to manufacture, sell or import automobiles that

emit noise beyond the limits set on noise level.

All units and individuals are forbidden to use high-pitch

loudspeakers in urban areas where noise-sensitive structures are

concentrated.

Any unit or individual suffering from the hazards of

environmental noise pollution shall have the right to demand the

polluter to eliminate the hazards; if a loss has been caused, it shall

be compensated according to law.

"Noise emission" means emission of noise from the source to the

living environment of the neighbourhood.

"Noise-sensitive structures" mean structures that require a quiet

environment such as hospitals, schools, government offices,

research institutions and residential buildings.

"Areas where noise-sensitive structures are concentrated" mean

such areas as medical treatment areas, cultural, education and

research districts and areas where government offices or residential

buildings constitute the main buildings.

"At night" means the period from 10:00 p.m. to 6:00 a.m.

Australia

In New South Wales (NSW) no single government authority

has the responsibility or capacity to be able to minimise all forms of

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noise pollution. The State is excluded from control of noise in a

number of areas by commonwealth legislation. These include

aircraft noise, where noise limits could affect trade, and the setting

standards for noise emissions from new vehicles. In areas where

the State does have powers to control noise the Environment

Protection Authority (EPA) has an overall responsibility for

environmental noise (as distinct from occupational noise), under

the Noise Control Act 1975. The Act deals with the prevention,

minimisation and abatement of noise and vibration and empowers

the EPA, the Waterways Authority, local government and the police

for these purposes.

The EPA controls noise from scheduled premises those

required by the Noise Control Act to have a licence and noise

associated with rail traffic and the construction or upgrading of

freeways and toll roads. The Police and local council are generally

responsible for neighbourhood noise issues and have authority to

issue noise abatement directions to control noise from premises and

for noise from burglar alarms. Local council have an essential role

in minimising the effects of excessive noise, particularly in their

local residential areas, from smaller factories, non-scheduled

premises and public places. The Waterways Authority has specific

responsibilities in relation to noise from vessels in navigable waters.

Under the provisions of the Noise Control Act 1975 in NSW

the railway system is classified as scheduled premises and as such

the EPA has a regulatory role, and seeks to achieve noise targets

for rail operations throughout the State to minimise the impact on

local residents.

The EPA issues licences for the management of scheduled

premises. When issuing a licence the EPA sets initial noise limits

that are achievable with the operation of plant and equipment

currently installed, operated and maintained effectively. To achieve

further improvements in noise exposure to residents, negotiations

with the licensed premises are carried out and can be incorporated

in the licence as Pollution Reduction Programs (PRPs). The EPA is

currently working with industry to reduce noise levels from major

sources.

The Noise Control (Miscellaneous Articles) Regulation 1995

was introduced to cover community noise issues not covered by

previous legislation. It includes limitations on burglar alarms for

both residential and commercial premises. Changes have been

made to the night-time control of common domestic noise sources

such as power tools, air conditioners, amplified music and lawn

mowers. Under the new regulation only one warning to the offender

is required and the warning is valid for 28 days. If an offence is

committed within this period a fine can be issued without further

warnings. The previous regulation warning was only active for 12

hours which meant it was not very effective with repetitious

offences typical in suburban areas.

The Noise Control (Motor Vehicles and Motor Vehicle

Accessories) Regulation 1995 controls the noise of individual motor

vehicles. It includes a provision to control noise from a range of

accessories including horns, alarms, refrigeration units and sound

systems. It also places responsibility to ensure compliance of

repairs/modifications of vehicles on the vehicle repairers.

In addition to the measures introduced to reduce the source

and transmission of noise, measures can be undertaken to noise

proof buildings thereby reducing the occupant exposure to noise.

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Montgomery County Noise Control Ordinance

The Montgomery County Noise Control Ordinance allows for

normal activities during regular hours; however, it does attempt to

eliminate interference from noise when most of us want to rest and

relax. It also seeks to control disturbing and unhealthy levels of

noise in general. Key provisions of the Noise Control Ordinance:

(i) Provide day/night sound level limits.

(ii) Establish "quiet hours."

(iii) Define sounds that constitute noise disturbances.

(iv) Establish a "nuisance provision" that prohibits certain noises at

any time.

A noise disturbance, as defined by the ordinance, is any

sound that is unpleasant, annoying, or loud; abnormal for the time

or location; and prejudicial to health, comfort, property, or the

conduct of business. Under the ordinance, it is unlawful to create a

noise disturbance anywhere during "quiet hours," including multi-

family buildings and townhouses. The "nuisance provision" prohibits

some noise disturbances anywhere at any time.

The Montgomery County Noise Control Ordinance promotes

peace and quiet for everyone by covering a wide variety of

residential and business situations. The Ordinance does not cover

noise from aircraft and railroads or motor vehicles on public

roadways, as Federal and State governments supersede local

regulation. Also exempt are emergency operations by public

utilities.

Among other provisions, the Montgomery County Noise

Control Ordinance makes it illegal to:

(i) Operate, or allow to be operated, a radio, television, or other

electronic sound-producing device on public or private property if

the sound exceeds 55 decibels at the receiving property line.

(ii) Create a noise disturbance during "quiet hours" in a

residential zone or multi-family structure.

(iii) Operate any equipment that exceeds the receiving property

line sound level limits.

(iv) Allow an animal or fowl to create a noise disturbance at any

time.

(vi) Load or unload material during "quiet hours."

(vi) Create a noise disturbance across property lines during "quiet

hours" by operating power equipment mounted on a motor vehicle;

for example, refrigerated trucks or commercial vacuum cleaners.

(vii) Permit construction noise to exceed 75 decibels, with

allowances for higher decibel levels under an approved "Noise

Suppression Plan."

VI

Statutory Laws in India

Not that the Legislature and the Executive in India are

completely unmindful of the menace of noise pollution. Laws have

been enacted and the Rules have been framed by the Executive for

carrying on the purposes of the legislation. The real issue is with

the implementation of the laws. What is needed is the will to

implement the laws. It would be useful to have a brief resume of

some of the laws which are already available on the Statute Book.

Treatment of the problem of noise pollution can be dealt under the

Law of Crimes and Civil Law. Civil law can be divided under two

heads (i) The Law of Torts (ii) The General Civil Law. The cases

regarding noise have not come before the law courts in large

quantity. The reason behind this is that many people in India did

not consider noise as a sort of pollution and they are not very much

conscious about the evil consequences of noise pollution. The level

of noise pollution is relative and depends upon a person and a

particular place. The law will not take care of a super sensitive

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person but the standard is of an average and rational human being

in the society.

The Noise Pollution (Regulation and Control) Rules, 2000

In order to curb the growing problem of noise pollution, the

Government of India has enacted the Noise Pollution(Regulation

and Control) Rules, 2000. Prior to the enactment of these rules

noise pollution was not being dealt specifically by a particular Act.

"Whereas the increasing ambient noise levels in public places

from various sources, inter-alia, industrial activity,

construction activity, generator sets, loudspeakers, public

address systems, music systems, vehicular horns and other

mechanical devices, have deleterious effects on human health

and the psychological well being of the people; it is

considered necessary to regulate and control noise producing

and generating sources with the objective of maintaining the

ambient air quality standard in respect of noise;"

The main provisions of the noise rules are as under:

1. The State Government may categorize the areas into

industrial, commercial, residential or silence areas/zones for the

purpose of implementation of noise standards for different areas.

2. The ambient air quality standards in respect of noise for

different areas/zones has been specified for in the Schedule

annexed to the Rules.

3. The State Government shall take measures for abatement of

noise including noise emanating from vehicular movements and

ensure that the existing noise levels do not exceed the ambient air

quality standards specified under these rules.

4. An area comprising not less than 100 meters around

hospitals, educational institutions and courts may be declared as

silence area/zone for the purpose of these rules.

5. A loudspeaker or a public address system shall not be used

except after obtaining written permission from the authority and

the same shall not be used at night i.e. between 10.00p.m. and

6.00 a.m.

6. A person found violating the provisions as to the maximum

noise permissible in any particular area shall be liable to be

punished for it as per the provisions of these rules and any other

law in force.

Indian Penal Code

Noise pollution can be dealt under Sections 268, 290 and 291

of the Indian Penal Code, as a public nuisance. Under Section 268

of this Code, it is mentioned that 'A person is guilty of a public

nuisance who does any act or is guilty of an illegal omission which

causes any common injury, danger or annoyance to the public or

the people in general who dwell or occupy property in the vicinity,

or which must necessarily cause injury, obstruction, danger or

annoyance to persons who may have occasion to use any public

right.

A common nuisance is not excused on the ground that it

causes some convenience or advantage.'

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Sections 290 and 291 of the Indian Penal Code deal with the

punishment for public nuisance.

Criminal Procedure Code

Under Section 133 of the Code of Criminal Procedure, 1973

the magistrate has the power to make conditional order requiring

the person causing nuisance to remove such nuisance.

The Factories Act, 1948.

The Factories Act does not contain any specific provision for

noise control. However, under the Third Schedule Sections 89 and

90 of the Act, 'noise induced hearing loss', is mentioned as a

notifiable disease. Under section 89 of the Act, any medical

practitioner who detects any notifiable disease, including noise-

induced hearing loss, in a worker, has to report the case to the

Chief Inspector of Factories, along with all other relevant

information. Failure to do so is a punishable offence.

Similarly, under the Model Rules, limits for noise exposure for

work zone area has been prescribed.

Motor Vehicles Act, 1988, and Rules framed thereunder

Rules 119 and 120 of the Central Motor Vehicles Rules, 1989,

deal with reduction of noise.

Rule 119. Horns

(1) On and after expiry of one year from the date of

commencement of the Central Motor Vehicles (Amendment)

Rules, 1999, every motor vehicle including construction

equipment vehicle and agricultural tractor manufactured shall

be fitted with an electric horn or other devices conforming to

the requirements of IS: 1884?1992, specified by the Bureau

of Indian Standards for use by the driver of the vehicle and

capable of giving audible and sufficient warning of the

approach or position of the vehicle:

Provided that on and from 1st January, 2003, the horn

installation shall be as per AIS-014 specifications, as may be

amended from time to time, till such time as corresponding

Bureau of Indian Standards specifications are notified.

(2) No motor vehicle shall be fitted with any multi-toned

horn giving a succession of different notes or with any other

sound-producing device giving an unduly harsh, shrill, loud or

alarming noise.

Rule 120. Silencers

(1) Every motor vehicle including agricultural tractor shall be

fitted with a device (hereinafter referred to as a silencer)

which by means of an expansion chamber or otherwise

reduces as far as practicable, the noise that would otherwise

be made by the escape of exhaust gages from the engine.

(2) Noise standards? Every motor vehicle shall be constructed

and maintained so as to conform to noise standards specified

in Part E of the Schedule VI to the Environment (Protection)

Rules, 1986, when tested as per IS: 3028-1998, as amended

from time to time.

Law of Torts

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Quietness and freedom from noise are indispensable to the

full and free enjoyment of a dwelling-house. No proprietor has an

absolute right to create noises upon his own land, because any right

which the law gives is qualified by the condition that it must not be

exercised to the nuisance of his neighbours or of the public. Noise

will create an actionable nuisance only if it materially interferes with

the ordinary comfort of life, judged by ordinary, plain and simple

notions, and having regard to the locality; the question being one of

degree in each case.

The Air (Prevention and Control of Pollution) Act, 1981

Noise was included in the definition of air pollutant in Air

(Prevention and Control of Pollution) Act in 1987. Thus, the

provisions of the Air Act, became applicable in respect of noise

pollution, also.

The Environment (Protection) Act, 1986.

Although there is no specific provision to deal with noise

pollution, the Act confers powers on Government of India to take

measures to deal with various types of pollution including noise

pollution.

Fireworks

The Explosives Act, 1884 regulates manufacture, possession,

use, sale, transport, import & export of explosives. Firecrackers are

governed by this Statute. Rule 87 of the Explosives Rule, 1983

prohibits manufacture of any explosive at any place, except in

factory or premises licensed under the Rules.

In India there is no separate Act that regulates the

manufacture, possession, use, sale, manufacture and transactions

in firecrackers. All this is regulated by The Explosives Act, 1884.

The Noise that is produced by these fireworks is regulated by the

Environmental Protection Act, 1986 and The Noise Pollution

(Regulation and Control) Rules, 2000.

VII

JUDICIAL OPINION IN INDIA

In Kirori Mal Bishambar Dayal v. The State AIR 1958

Punjab 11, accused/petitioner was convicted and sentenced under

Section 290 of Indian Penal Code 1860 and was fined Rs. 50 for

causing noise and emitting smoke and vibrations by operating of

heavy machinery in the residential area. The orders of the trial

court was upheld by the District Magistrate in appeal. The High

Court of Punjab & Haryana also upheld the decision of the courts

below and dismissed the revision petition. In the case of Bhuban

Ram & Ors. v. Bibhuti Bhushan Biswas AIR 1919 Calcutta 539,

it was held that working of a paddy husking machine at night

causes nuisance by noise and the occupier was held liable to be

punished under Section 290 IPC. In Ivour Heyden v. State of

Andhra Pradesh 1984 Cri LJ (NOC) 16, the High Court of Andhra

Pradesh excused the act of playing radio loudly on the ground that

it was a trivial act. Careful reading of Section 95 of IPC shows that

only that harm is excused which is not expected to be complained

by the person of ordinary temper and sense.

In Rabin Mukherjee v. State of West Bengal AIR 1985

Cal. 222 the use of air horns was prohibited by the court to prevent

noise pollution. The Court observed:

"\005it is found that the atmosphere and the environment

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is very much polluted from indiscriminating noise

emitted from different quarters and on research it was

found that persons who are staying near the Airport,

are becoming victim of various ailments. Such persons

even become victim of mental disease. On such

research it was also found that workers in various

factories even become deaf and hard of hearing. It was

further found on such research that as a result of this

excessive noise pollution, people suffer from loss of

appetite, depression, mental restlessness and insomnia.

People also suffer from complain of excessive blood

pressure and heart trouble. It is not necessary to go

into the question about direct effect of such noise

pollution because of indiscriminate and illegal use of

such electric and air horn as it is an admitted position

that the same is injurious to health and amongst

different causes of environmental pollution, sound

pollution is one which is of grave concern."

In the case of People United for better Living in Calcutta

v. State of West Bengal (AIR 1993 Cal. 215) the Calcutta High

Court observed:

"In a developing country there shall have to be

developments, but that development shall have to be in

closest possible harmony with the environment, as

otherwise there would be development but no

environment, which would result in total devastation,

though, however, may not be felt in present but at

some future point of time, but then it would be too late

in the day, however, to control and improve the

environment. In fact, there should be a proper balance

between the protection of environment and the

development process. The society shall have to prosper,

but not at the cost of the environment and in similar

vein, the environment shall have to be protected but

not at the cost of the development of the society and as

such a balance has to be found out and administrative

actions ought to proceed accordingly."

In Burrabazar Fireworks Dealers Association v.

Commissioner of police, Calcutta, AIR 1998 Cal. 121 it has been

held

"Art. 19(1)(g) of the Constitution of India does not

guarantee the fundamental right to carry on trade or

business which creates pollution or which takes away

that communities safety, health and peace. \005A citizen

or people cannot be made a captive listener to hear the

tremendous sounds caused by bursting out from a noisy

fireworks. It may give pleasure to one or two persons

who burst it but others have to be a captive listener

whose fundamental rights guaranteed under Article

19(10(a) and other provisions of the Constitution are

taken away, suspended and made meaningless. \005Under

Art. 19(1)(a), read withy Art. 21 of the constitution of

India, the citizens have a right of decent environment

and they have a right to live peacefully, right to sleep at

night and to have a right to leisure which are all

necessary under Art. 21 of the Constitution."(Headnote)

In Appa Rao, M.S. v. Govt. of T.N. , (1995) 1 LW 319

(Mad), the Madras High Court taking a note of the serious health

hazard and disturbance to public order and tranquility caused by

the uncontrolled noise pollution prevailing in the State, issued a

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writ of mandamus for directing State Government to impose strict

conditions for issue of license for the use of amplifiers and

loudspeakers and for directing Director-General, Police (Law and

Order) to impose total ban on use of horn type loudspeakers and

amplifiers and air horns of automobiles.

In P.A. Jacob v. the Superintendent of Police, AIR (1993)

Kerala 1, it was said \027 "The right to speech implies, the right to

silence. It implies freedom, not to listen, and not to be forced to

listen. The right comprehends freedom to be free from what one

desires to be free from. Free speech is not to be treated as a

promise to everyone with opinions and beliefs, to gather at any

place and at any time and express their views in any manner. The

right is subordinate to peace and order. A person can decline to

read a publication, or switch off a radio or a television set. But, he

cannot prevent the sound from a loudspeaker reaching him. He

could be forced to hear what, he wishes not, to hear. That will be

an invasion of his right to be let alone, to hear what he wants to

hear, or not to hear, what he does not wish to hear. One may put

his mind or hearing to his own uses, but not that of another.

Noone has a right to trespass on the mind or ear of another and

commit auricular or visual aggression. A loudspeaker is mechanical

device, and it has no mind or thought process in it. Recognition of

the right of speech or expression is recognition accorded to a

human faculty. A right belongs to human personality, and not to a

mechanical device. One may put his faculties to reasonable uses.

But, he cannot put his machines to any use he likes. He cannot use

his machines to injure others. Intervention with a machine, is not

intervention with, or invasion of a human faculty or right. No

mechanical device can be upgraded to a human faculty. A

computer or a robot cannot be conceded the right under Art. 19

(though they may be useful to man to express his faculties). No

more, a loudspeaker. The use of a loudspeaker may be incidental

to the exercise of the right. But, its use is not a matter of right, or

part of the right".

In Free Legal Aid Cell Shri Sugan Chand Aggarwal alias

Bhagatji v. Govt. of NCT of Delhi and others, AIR (2001) Delhi

455, it was said that "Pollution being wrongful contamination of the

environment which causes material injury to the right of an

individual, noise can well be regarded as a pollutant because it

contaminates environment, causes nuisance and affects the health

of a person and would therefore, offend Art. 21, if it exceeds a

reasonable limit."

The Supreme Court in Church of God (Full Gospel) in

India v. K.K.R. Majestic Colony Welfare Assn., (2000) 7 SCC

282 held that the Court may issue directions in respect of

controlling noise pollution even if such noise was a direct result of

and was connected with religious activities. It was further held:-

"Undisputedly, no religion prescribes that prayers

should be performed by disturbing the peace of others

nor does it preach that they should be through voice

amplifiers or beating of drums. In our view, in a

civilized society in the name of religion, activities which

disturb old or infirm persons, students or children

having their sleep in the early hours or during daytime

or other persons carrying on other activities cannot be

permitted. It should not be forgotten that young babies

in the neighbourhood are also entitled to enjoy their

natural right of sleeping in a peaceful atmosphere. A

student preparing for his examination is entitled to

concentrate on his studies without their being any

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unnecessary disturbance by the neighbours. Similarly,

the old and the infirm are entitled to enjoy reasonable

quietness during their leisure hours without there being

any nuisance of noise pollution. Aged, sick, people

afflicted with psychic disturbances as well as children up

to 6 years of age are considered to be very sensible (sic

sensitive) to noise. Their rights are also required to be

honoured.

"Under the Environment (Protection) Act, 1986,

rules for noise-pollution level are framed which

prescribe permissible limits of noise in residential,

commercial, industrial areas or silence zone. The

question is \027 whether the appellant can be permitted to

violate the said provisions and add to the noise

pollution. In our view, to claim such a right itself would

be unjustifiable. In these days, the problem of noise

pollution has become more serious with the increasing

trend towards industrialisation, urbanization and

modernisation and is having many evil effects including

danger to health. It may cause interruption of sleep,

affect communication, loss of efficiency, hearing loss or

deafness, high blood pressure, depression, irritability,

fatigue, gastrointestinal problems, allergy, distraction,

mental stress and annoyance etc. This also affects

animals alike. The extent of damage depends upon the

duration and the intensity of noise. Sometimes it leads

to serious law and order problem. Further, in an

organized society, rights are related with duties towards

others including neighbours\005\005...

\005\005..because of urbanization or industrialization the

noise pollution may in some area of a city/town might

be exceeding permissible limits prescribed under the

Rules, but that would not be a ground for permitting

others to increase the same by beating of drums or by

use of voice amplifiers, loudspeakers or by such other

musical instruments and, therefore, rules prescribing

reasonable restrictions including the Rules for the use of

loudspeakers and voice amplifiers framed under the

Madras Town Nuisances Act, 1889 and also the Noise

Pollution (Regulation and Control) Rules, 2000 are

required to be enforced."

In Charan Lal Sahu v. Union of India (AIR 1990 SC 1480)

the Supreme Court reiterated the need to create separate tribunals

and asserted the need to appoint a body of experts to advice the

Government on environmental issues.

In M.C. Mehta v. Union of India (2004) 1 SCC 571 this

Court has emphasized the need for creating environmental

awareness amongst students through education.

We have referred to a few, not all available judgments.

Suffice it to observe that Indian Judicial opinion has been uniform 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. We agree with and record our approval of the view taken

and the opinion expressed by the several High Courts in the

decisions referred to hereinabove.

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VIII

Interim orders

During the course of the hearing of this case the Court had

passed several interim orders keeping in mind the importance of

the issue.

The interim order dated 27/09/2001 deserves to be

mentioned in particular, which directed as under:

"(1) The Union Government, the Union

Territories as well as all the State

Governments shall take steps to strictly comply

with Notification No. G.S.R. 682(E) dated

October 05, 1999 whereby the Environment

(Protection) Rules, 1986 framed under the

Environment (Protection) Act, 1986 were

amended. They shall in particular comply with

amended Rule 89 of the said Rules, which

reads as follows:

"89. Noise standards for fire-

crackers

A.(i) The manufacture, sale or use of

firecrackers generating noise level

exceeding 125 dB(AI) or 145 dB( C)pk at

4 meters distance from the point of

bursting shall be prohibited.

(ii) For individual fire-cracker constituting

the series (joined fire-crackers), the

above mentioned limit be reduced by 5

log 10(N) dB, where N = number of

crackers joined together."

(2) The use of fireworks or fire-crackers

shall not be permitted except between

6.00 a.m. and 10.00p.m. No firework or

firecracker shall be allowed between

10.00 p.m. and 6.00 a.m.

(3) Firecrackers shall not be used at any

time in silence zones, as defined in S.O.

1046(E) issued on 22.11.2000 by the

Ministry of Environment and Forests. In

the said Notification Silence Zone has

been defined as:

" Silence Zone is an area comprising not

less than 100 meters around hospitals,

educational institutions, courts, religious

places or any other area which is

declared as such by the competent

authority."

(4) The State Education Resource

Centers in all the States and the Union

Territories as well as the

management/principals of schools in all

the States and Union Territories shall

take appropriate steps to educate

students about the ill effects of air and

noise pollution and appraise them of

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directions (1) to (3) above."

These interim directions were also directed to be given wide

publicity both by electronic and print media. It was said that

Doordarshan and other television channels shall give publicity to

these directions, at least once every day during prime time, during

the fortnight before Dussehra and Diwali. The Ministry of

Information and Broadcasting was asked to bring these directions

to the notice of the general public through appropriate

advertisements, issued in the newspapers. The All India Radio was

asked to broadcast these directions on prime time on FM and other

frequencies for information of the general public.

Due to the imposition of the restrictions on the bursting of

firecrackers, several Interim Applications came to be filed before

the Court. The Court vide its interim order dated 10.9.2003 stated:-

"Through the I.A.s filed in this Court the following two

suggestions deserve notice.

Firstly, it is submitted that certain local festivals and

celebrations are accompanied customarily by bursting of

firecrackers which is at times at such hours as is not

permissible under the order of this Court dated

27.9.2001. Secondly, it is pointed out that the industry

of fireworks may face serious difficulty, even partial

closure, on account of the directions made by this

Court.

We have grave doubts if the abovesaid considerations

can come in the way of the enforcement of fundamental

rights guaranteed by the Constitution for the citizens

and people of India to live in peace and comfort, in an

atmosphere free from pollution of any kind, such as one

caused by noise and foul/poisonous gases. However

still, without expressing any final opinion on the pleas

advanced, we allow the parties adversely affected the

liberty to make representation to their respective State

Governments and the State Governments may, in their

turn, if satisfied of the genuineness of the

representation made, invite the attention of the Govt. of

India, to the suggestions made."

We are happy to note that the initial reluctance to abide by

the interim directions made by this Court as displayed by the

subsequent interlocutory applications soon gave way to compliance.

By and large the interim directions made by the Court were

observed in compliance. Police and civil administration remained

alert during Diwali Festival to see that the directions made by the

Court were complied with. Resident Welfare Associations and

school children gave a very encourageous response who voluntarily

desisted from bursting firecrackers in prohibited hours of night and

also bursting such firecrackers as produce high level noise.

IX

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Difficulty in implementation of noise pollution control

methodology in India.

India has passed through the stage of being characterised as

a developing country and is ready to enter and stand in the line of

developed countries. Yet, the issue of noise pollution in India has

not been taken so far with that seriousness as it ought to have

been. Firstly, as we have stated earlier, there is a lack of will on

the part of the Executive to implement the laws. This has

contributed to lack of infrastructure essential for attaining the

enforcement of laws. Secondly, there is lack of requisite awareness

on the part of the citizens. The deleterious effects 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.

The problems that are being faced in controlling noise

pollution are:-

1. 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.

2. 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 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.

3. 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 with their ears itself and

not with the use of technical instruments.

X

Firecrackers.

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?

What is the Maximum sound level that should be permissible

for firecrackers?

At present the maximum permissible sound level for

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firecrackers as per the noise standard is provided by Item 89, Sch.

I, Table 1.5 of the Environment (Protection) Rules, 1986:

"89. Noise Standard for Fire- crackers

A. (i) The manufacture, sale or use of fire-

crackers generating noise level

exceeding 125 dB(AI) or 145dB(C)pk at

4 meters distance from the point of

bursting shall be prohibited.

(ii) For individual firecrackers

constituting the series (joined fire-

crackers), the above mentioned limit be

reduced by 5 log 10 (N)dB, where N=

Number of crackers joined together."

The learned animus curiae had on 17th September 2001, filed

certain suggestions for issuance of directions for consideration of

the Court. In it he had suggested that the maximum noise level of

firecrackers could be fixed at 65 dB(A).

It is submitted that the limit of emission of noise prescribed in

the Rules is too liberal and errs on higher side. It is suggested that

the manufacture of Firecrackers or those dealing with them should

ensure that only such crackers are produced and marketed which

do not emit noise of more than 65 dB(A).

The Government of India had not accepted the above

suggestion of the learned Amicus. The government replied to it in

the following words.

"Sound level of 65 dB(A) for firecrackers

is too low a level to be prescribed. The noise

levels prescribed in GSR 682 (E) dated 5TH

October, 1999, have been evolved by a

technical committee and need to be complied

with."

The Fire workers industry also submitted an application to the

Union Minister of Environment and Forest at a meeting convened in

New Delhi on 15/04/2004, pleading justification for the increase

proposed in the prescribed firecrackers noise standards from 125

dB(AI) to 135 db(AI) and from 145 dB(c)p k to 155(C)pk.

In an Article on Firecracker Noise, a Hazard- A review of its

Standards, by, Dr. S.P. Singhal, published in MAPAN- Journal of

Metrology Society of India, Vol. 17, No. 3, 2002; pp. 101-117, Dr.

Singhal has stated:

"UK and many other European Economic

Commission (EEC) countries have adopted an exposure

limit of 140dB(lin) peak sound pressure level for

impulsive or cracker noise for a maximum exposure of

100 impulses per day.

European Standardization Committee CEN/TC/212

WG3 is also working to set-up standards on fireworks.

Some of the countries have desired the limit to be set

at 112dB(AI) and, several others have wanted it to be

set at125dB(AI) or even at 126-127 dB(AI) at the

testing distance, with the peak sound pressure level to

be 20dB higher than these limits. It has fixed a noise

level of 120dB(AI) measured at the testing distance on

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an ad hoc basis for category 2 fireworks.

Canada has adopted the damage risk criterion of

140dBA peak sound pressure level at a distance of 5m

from the point of explosion of the cracker. It is

applicable in all categories of fireworks unless otherwise

specified."

Keeping all these submissions in mind it does seem that the present

noise standards as prescribed in India by the Government of India,

are correct and do not need to be altered at the moment. However,

if the Government is of the opinion that this sound level needs to be

increased or reduced at a later date it is free to do so.

Should a firecracker be tested on the basis of sound level or

on the basis of chemical compositions so as to check, does

the firecracker correspond with the prescribed rules?

For an effective implementation of noise pollution prevention

programme, it is essential that such a method be devised whose

enforcement shall not be problematic. A rule should be so designed,

that it is possible for all concerned to be able to implement it, and

thus it is not violated by anyone due to some kind of supervening

impossibility. Almost all the parties concerned have expressed a

discontent about the present system of enforcement of noise level

pertaining to firecrackers. Lack of infrastructure on account of noise

measuring devices, high cost of such devices, low noise levels

prescribed, expensive rates for getting samples tested, long time

taken by the testing laboratories are a few of the difficulties that

have been cited in the enforcement of the noise standards.

The Department of Explosives has filed two affidavits before

the Court, the first on 1.4.2003 and the second on 16.2.2004,

besides a joint affidavit which was filed by the Ministry of

Environment and Forest on behalf of the Union of India on

29.8.2003.

In the aforesaid Affidavits, the stand taken by the

Department of Explosives before the Court is:

(i) that "the firecrackers noise standard prescribed under the

Environment (Protection) Rules, 1986 requires costly instruments,

wide infrastructure and special expertise in the fields of acoustic

science." (para-8 of Affidavit dated 1.4.2003)

(ii) that "the Department is not prepared in terms of manpower

equipments and infrastructure for implementation of the standard

which is based on measurement of noise level" (para-9 of Affidavit

dated 1.4.2003)

(iii) that "the Department of Explosives is of the opinion that the

noise level of firecrackers can be efficiently controlled by specifying

the size, shape, composition and quantity of chemicals in the

fireworks, which are the prime factors that determine the noise

level which entails a lot of R & D work. The maximum permissible

size of firecrackers and the maximum possible weight of the

chemicals for each variety would be mentioned in the list of

authorized explosives appended to the Explosives Rules consequent

upon amendment of the Explosives Rules."(para-15 of Affidavit

dated 1.4.2003.)

(iv) that "the department is already publishing one authorized List

of Explosives, which is updated periodically as and when new items

of explosives are approved by the Department. The specification for

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the approved varieties are prescribed in the said Authorised List, in

terms of permissible size, permissible composition of chemicals,

mass of charge and other such physical and chemical properties.

The items which are not listed in the authorized list cannot be

manufactured, stored, transported or sold as per various provisions

of the Explosives Rules. Anybody proposing to manufacture a new

variety of fireworks shall apply to the Chief Controller of Explosives,

Nagpur along with detailed drawings, samples and prescribed fee

for testing and approval. Noise regulations for firecrackers can be

implemented effectively through the Authorised List in four phases:

(i) The permissible sound level of 125 dB(AI) notified

under the Rules is taken as the guideline for purpose of

implementation by the Department of Explosives.

(ii) To achieve this, the Department can experiment with

various sizes, chemicals and compositions in order to

devise the optimal set of factors for each variety, to

result in the desired noise level.

(iii) This set of factors or parameters for each variety of

firecrackers will then be notified under the Authorized

List of Explosives under the Explosives Rules, 1983.

(iv) Any violation from the authorized List exceeding the

permitted size, permitted chemical content and

chemical composition will attract legal action."( para-16

of affidavit dated 1.4.2003).

In the Affidavit filed on 16.2.2004, the Chief Controller of

Explosives stated:-

(1) That since the role of the Department of Explosives is

mainly administration and enforcement of the

Explosives Rules 1983 and the status of the Department

is statutory in nature hence the Department of

Explosives had already taken up the matter and advised

the fireworks manufacturers of developing and

producing environment friendly fireworks besides

advocating to promote, sale and use of only

fireworks/crackers meeting the noise standards

prescribed under Environment (Protection) Rules, 1986

and amendments thereof.

(2) That it is impractical for Government of India to fix

norms regarding chemical composition and the size of

the firecrackers. It is the duty and responsibility of the

manufacturer to control size and composition of

firecrackers to comply with the noise limits prescribed

under the Environment (Protection) Rules, 1986.

(3) That it is impractical owing to the shortage of

infrastructure available with the Department of

Explosives. The licensing for the manufacture of

firecrackers shall be as per the Explosives Act, 1884.

The Power of the District Magistrate for issuing licenses

is to be retained as per the Rules.

(4) That the matter is now open and the manufacturers are

at liberty to manufacture, develop, promote and sell

only those fireworks, which comply with the noise limits

prescribed under the Environment (Protection) Rules

1986 and Explosive Rules, 1983.

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(5) That the Department of Explosives had already made

mandatory for the manufacturers of fireworks to

mention the noise levels in decibel units on firecrackers.

The manufacturers are also required to declare on the

packing of the boxes that the noise levels conform to

the standards prescribed under the Environment

(Protection) Rules, 1986. The Department had already

included the prescribed noise limits for firecrackers as

additional conditions of licenses issued under the

Explosives Rules 1983. The authorities empowered to

enforce the Explosives Rules 1983 have been clearly

defined under the said Rules.

Desirability of fixing chemical composition for the

firecrackers

The learned Amicus Curiae has suggested that the

Government of India should fix the permissible chemical

compositions for the firecrackers. He submitted ___ "To control the

noise levels from firecrackers, it was felt that apart from

firecrackers carrying on its label, the extent of its noise level

emission, it may be appropriate if the Government was to fix norms

regarding chemical composition and the size of firecrackers so as to

confirm to the notified noise emission norms."

In UK as well, the method of determining the noise level of a

firecracker, is by fixing its chemical contents. The British Standard

Institute has developed the British Standard Fireworks, Part 2.

Specification for Fireworks (BS 7114: Part 2) of 1988, which

prescribes the maximum permissible quantity of chemicals in a

particular firework. The Standards prescribe the various

specifications with which the firework has to comply for it to be

manufactured or used in UK.

During the course of hearing, submissions in extenso were

made on the comparative merits and demerits of the two systems

namely (i) measuring the noise level of firecrackers in decibels and

thereby securing the implementation of 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 firecrackers. A tabulated statement of such comparison has been

placed on the record by the Tamil Nadu Fireworks and Amorces

Manufacturers Association.

Briefly stated, it is pointed out that if the firecrackers are

allowed to be manufactured in the manner in which they are being

done now and the noise level is left to be measured at the time of

bursting of firecrackers, several difficulties in implementation would

arise, frustrating the regulation. Very expensive instruments and

gadgets are necessary to measure the sound level of firecrackers.

A sound level meter with required capabilities may cost around Rs.3

lacs or upwards. Factors like wind velocity, temperature and

humidity have a bearing on the measurement of noise level. The

gadgets for monitoring these factors shall also be required to be

installed at the testing field. Technically trained persons would be

required to be posted at every point of measuring. Testing the

sound level of firecrackers at the point of bursting would mean that

the firecrackers have already reached the market. The persons to

be hauled up would be unwary retailers or users and it would be

difficult to fix the responsibility on the manufacturers or

distributors. Difficulties of proof in the court of law would also

arise. The noise level in a firecracker is not stable. The same

firecracker may have a different noise level at the time of

manufacturing and at the time of use on account of climatic

changes which would naturally occur by the lapse of time and

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change of place. If the noise level was to be tested at the factory,

the firecracker would have already been manufactured. There would

also be other difficulties inasmuch as the clearance for marketability

would depend on the firecrackers satisfying the test carried out and

at that point of time the firecrackers have already been

manufactured and shall have to be only destroyed if unsuccessful in

the test. That apart, the manufactures are spread throughout the

country. Some of them are small scale industries. Either many a

testing stations shall have to be established or else the

manufacturers would be required to go to centralized testing

stations carrying untested firecrackers. Both seem to be difficult

situations.

On the other hand, prescribing of weight and composition of

chemicals to be used in manufacturing firecrackers would mean

experiment or analytical tests being carried out at any one station

followed by publication of results and laid down standards.

Experimental checks would be enough to satisfy the authorities, if

the manufacturers were following the laid down standards as to size

of firecrackers, weight and percentile composition of chemicals

used. This system would enable identification of illegal firecrackers

with comparatively more ease. Size and mass of charge are two

basic factors that determine the noise level of a firecracker. By

restricting these two prime factors, noise standard is achieved more

effectively. Though other factors like climatic conditions may affect

the noise level to some extent, but this system seems to us to be

more dependable and logical, at least on the materials made

available before us.

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 their

chemical composition, we feel that a change in the method of

evaluating the firecrackers shall surely be more beneficial. It shall

reduce the expenditure that shall otherwise have to be incurred on

expensive instruments that are necessary for the purpose of

measuring sound. The firecrackers shall easily be identifiable on the

basis of their mass of charge, and weight of the chemicals

contained in the firecrackers can also be easily measured. There

shall not be too much need of the personnel technically qualified for

measuring sound, as what would then be needed, would be to

simply weigh the chemical constituents. It shall to a great extent

also be successful in putting an end to illegal fireworks, which come

in bigger sizes, as they now shall be more easily identifiable. In

short the implementation of the rules relating to firecrackers shall

be easier and carried out by the enforcing authority more easily.

Keeping all these considerations and the various submissions

made before this Court in mind we are of the opinion that a method

as proposed by the learned Amicus Curiae, of fixing the maximum

chemical composition for each and every firecracker, keeping in

mind the limit of 125dB(AI) as the maximum permissible limit,

should be adopted. Every manufacturer should on the box of each

firecracker mention details of its chemical contents as well. In case

of a failure on the part of the manufacturer to mention these details

or in cases where the contents of the box do not match to the

chemical formulae as stated on their box, the manufacturer shall be

liable for criminal prosecution.

The Department of Explosives should in public interest

undertake necessary research activity for the purpose and come out

with the chemical formulae for each firecracker. The Department

shall at the time of giving the license for manufacturing a particular

firecracker shall specify the ratio as well as the maximum

permissible weight of every chemical used for the purpose.

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Response during hearing

The civic awareness towards prevention of noise pollution in

India is not as high as is expected. It is regrettable to see that

people indulge into making noise beyond tolerable limits and create

health hazard unmindful of consequences which are likely to befall

not only on others but also on themselves who create noise. The

enactment of laws has failed to create the requisite awareness.

The best time to create awareness is in the childhood. At middle-

school level education and in the age of adolescence the children

should be taught in the schools, and in the homes as well by the

parents___ What are the consequences of noise pollution and how

much health hazard is created by bursting firecrackers?

An awareness towards protecting the environment from all

sorts of pollutants and destructive activities needs to be created in

the minds at an younger age. Suitable courses of study need to be

devised by preparing text-books to be handed down to the youth in

its shaping age and whilst they are still in schools.

We are happy to note the way the people of the country and

especially the younger generation has responded to the interim

order made from time to time by this Court. News reports came to

our notice wherein certain schools were stated to have organized

special lectures for the children pointing out the adverse effects of

noise pollution created by firecrackers just before the schools

closed for Diwali festival. The children decided not to burst

firecrackers during Diwali Festival. Some volunteered and took a

vow to burst such firecrackers as do not create intolerable noise

and confining their such fun and frolic only to the hours of the day

and not to do so during the hours of night. Such a response from

young boys and girls who are our future and the educational

institutions on whom lie the responsibility of shaping the future of

this country is most welcome.

Certain incidental and associated issues require to be dealt

with and that we do hereafter.

Fixing of time limit for bursting firecrackers ___ Is relaxation

desirable for festivals?

The learned Amicus Curiae in his suggestions filed on 17th

September 2001 had suggested that the "Bursting of crackers

should be prohibited during night time, between 10.00 p.m. and

06.00 a.m.". The Court had agreed and directed, vide Order dated

27.9.2001 ___ "The use of fireworks or firecrackers shall not be

permitted except between 6.00 a.m. and 10.p.m. No fireworks or

firecrackers shall be used between 10.00 p.m. and 6.00 a.m. The

Government of India, has also expressed its opinion that there

should be no relaxation in the time limit for bursting firecrackers.

Relaxation of restrictions on bursting of crackers from 10.00 p.m. to

6.00 a.m. shall not be given as it is night time. During the night

time, people sleep and the high level of noise has deleterious

effects on the health and well being of the people."

Several interlocutory applications have been filed in this

Court, wherein it was pleaded that restriction on bursting of

firecrackers in the night should be removed during the Diwali

Festival. Similar relaxation was demanded for other festivals.

These applications highlighted practices prevalent in some of the

western countries wherein such relaxation is allowed. We do not

think that we will be justified in granting any such relaxation.

Indian society is pluralistic. People of this great country belong to

different castes and communities, have belief in different religions

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and customs and celebrate different festivals. We are tolerant for

each other. There is unity in diversity. If relaxation is allowed to

one there will be no justification for not permitting relaxation to

others and if we do so the relaxation will become the rule. It will be

difficult to enforce the restriction.

The Calcutta High Court in the case of Moulana Mufti Syed

Md. Noorur Rehman Barkati v. State of West Bengal AIR

(1999) Calcutta 15 has expressed the following view:

"The condition of the European countries, England

and America cannot be equated with the condition

prevailing in the State of West Bengal, particularly in

the City of Calcutta. \005.West Bengal has got its own

peculiar problem and this Court cannot decide a matter

looking at the Europe or America where the amenities

and the facilities are better. Density of population is

very thin. Roads are maintained in a perfect order.

Traffic noise is insignificant. The use of horns by

vehicles is a thing which is prohibited there unless in

case of emergency. People are disciplined. Traffic

moves in a disciplined manner. No horns are there. The

Ambient Noise Level in those countries are not at par

with those noise level in the City of Calcutta and/or in

different parts of State of West Bengal.

Accordingly, whatever may be decided by the

European countries or America, cannot have any direct

bearing on the fixation of the sound level in the State of

West Bengal. In other civilized countries, cars move

without making any noise or sound. Condition of the

roads is such that it cannot create any noise beyond

tolerance. People in those countries are not in the habit

of creating unnecessary sounds but in our country

because of the gift of the technology sound has become

a source of pleasure for few people including some

young people. Use of unnecessary horn in vehicles has

become a part and parcel of Indian culture".

The picture of the entire country compared with the State of

West Bengal does not bear any material difference. Thus a rule,

practice or provision as to relaxation in Europe or America may not

be of much help for us. They do not have many festivals or

celebrations round the year. Their festivals and events are only at

national level and one for all, unlike ours. Further, in the European

countries or even in America an insignificant percentage of the

population indulges in bursting crackers. Very few families, mainly

Indian, in these countries celebrate the festival of Diwali and burst

crackers. Thus the noise pollution produced by this small use of

firecrackers is not a cause of worry in these countries.

The situation in India is almost the opposite. The streets are

congested and the density of population per square kilometer is

one of the highest in the world. Firecrackers are burst in almost all

the houses, thus leading to pollution in the form of noise and

smoke___ both on a large scale, making it a cause of worry.

It is a judicially noticeable fact that in advanced countries

there is a move for collective celebration of festivals. For example,

in United States, on May Day, a show of fireworks is arranged

outside the city. People assemble in large numbers to witness such

show which is officially arranged by the State. Such example can

be emulated in our country. People belonging to that section of the

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society which wishes to celebrate a festival or an occasion may be

encouraged to organize such event collectively and may have a

show of fireworks away from the residential locality. Such a move

would save the people from the hazardous effects of noise pollution

caused by fireworks and at the same time bring the people

together and contribute in developing closeness, unity and

brotherhood.

In our opinion the total restriction on bursting firecrackers

between 10 pm and 6 am must continue without any relaxation in

favour of anyone.

Whether such restriction is violative of Article 25 of the

Constitution ?

The affidavit filed by Mr. Mariappan, the Secretary of the

Tamil Nadu Fireworks and Amorces Manufacturers Association,

alleges the restriction on bursting firecrackers to amount to

infringement of religious rights under Article 25. He says ___

"Therefore, the interference with the

date and time of celebrating the festivals,

amounts to infringement of religious rights

under Article 25 and the limitation under

Article 21 does not cause any health hazard."

The Court by restricting the time of bursting the firecrackers

has not in any way violated the religious rights of any person as

enshrined under Article 25 of the Constitution. The festival of Diwali

is mainly associated with pooja performed on the auspicious day

and not with firecrackers. In no religious text book it is written that

Diwali has to be celebrated by bursting crackers. Diwali is

considered as a festival of lights not of noises. Shelter in the name

of religion cannot be sought for, for bursting firecrackers and that

too at odd hours.

Another argument that has been put forward to remove the

restriction during festivals is that they are celebrated by most of the

people and that an inconvenience to a few should not become the

reason for restraining a greater lot.

In P.A. Jacob v. Superintendent of Police, Kottayam ,

AIR 1993 Kerala 1, it has been said "However wide a right is, it

cannot be as wide, as to destroy similar or other rights in others.

Jefferson said: No one has a natural right to commit aggression on

the equal rights of another. J.S. Mill said: If all mankind minus one

were of one opinion, and if only one person was of contrary opinion,

mankind would be no more justified in silencing that one person,

than he, if he had the power, would be justified in silencing

mankind."

If at all the people feel it necessary to burst firecrackers they

can choose and go for such firecrackers which on being burst emit

colours or lights mainly and produce very little or no sound. Their

use can be permitted. The Department of Explosives can, while

working out formulae for firecrackers, also along side classify the

crackers into two categories that could be: (i) sound emitting

crackers, and (b) colours/light emitting crackers. A few examples of

such colour emitting crackers are, snake tablets, sparklers, pencils,

hunters, chakri, colour rockets, flowerpots, parachutes, etc.

Category (b) firecrackers may not have restriction as to timings.

Though, it would need expert examination and opinion if colour

emitting crackers also emit fumes and gases which though not

source of noise pollution yet would cause air pollution, equally bad.

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Till such time the Department of Explosives makes any such

classification there shall be a total ban on bursting of firecrackers

between 10 p.m. and 6 a.m.

Can an exception be carved out for firecrackers meant for

export exclusively.

Should the Environment (Protection) Rules, 1986, be

amended in such a way that the firecrackers manufactured for

export and use in other countries are exempted from the Indian

noise standards?

Mr. Mariappan, the Secretary of The Tamil Nadu Fireworks

and Amorces Manufactures' Association, had in his affidavit dated

8th February 2002, requested the Court to remove the restriction on

manufacturing fireworks meant for exporting only and which are in

excess of the sound levels prescribed for fireworks within the

country. It is submitted, "the Indian Standards on noise of

firecrackers do not have any relevance to firecrackers intended for

export. But the order of the Hon'ble Supreme court prohibits

manufacture of firecrackers generating noise level exceeding 125

dB(AI) or 145 dB(C)pk at 4 maters distance from the point of

bursting. There is a total restriction on the manufacture of fireworks

and crackers without any discrimination being made between

firecrackers that are manufactured for use in India and those for

use in foreign countries. The trade having been globalised, Indian

firecrackers have to necessarily comply with foreign standards if

they are to enter into the international markets. The Department of

Explosives is already having various provisions laid down under the

Explosives Act, 1884 and the Explosives Rules, 1983, which govern

the export of fireworks. Prior approval from the Department of

Explosives is imperative for every export of fireworks. Therefore the

comprehensive position now imposed on firecrackers should be

modified exempting firecrackers that are manufactured for use in

foreign countries, from the purview of the Environment (Protection)

Act 1986 and the Rules framed thereunder."

The Court on the above-mentioned submission sought for the

view of the Department of Explosives. The Department has

expressed the view that firecrackers that are to be sold in foreign

countries may be excluded from the purview of the noise standards

provided they conform to the rules for manufacturing the goods

for export. They also submitted ___ "The firecrackers

manufactured and sold for export purpose may be excluded from

the purview of the firecrackers' noise standards provided they

follow the rules for manufacturing of goods for export. This will

enable the manufacturers to compete in the world market with the

other suppliers of firecrackers. The firecrackers manufactured for

export shall have a different colour code and a clear print indicating

that they are not to be sold in India."

We are inclined to agree with the view of the Department of

Explosives. Firecrackers for the purpose of export may be

manufactured and bear higher noise levels subject to the following

conditions: (i) The manufacturer should be permitted to do so only

when he has an export order with him and not otherwise; (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; (iii) These firecrackers should

have a different colour packing, from those intended to be sold in

India; (iv) The firecrackers should have a clear print on them

stating that they are not to be sold in India. In case these

firecrackers are found being sold in Indian territory, then the

manufacturer and the dealer selling these goods should be held

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liable.

How to check/control noise pollution

The need for checking noise pollution as highlighted by the

petitioners and several intervenors deserves appreciation.

Need for specific legislation to control and prevent noise

pollution still needs some emphasis. Undoubtedly, some laws have

been enacted. Yet, compared with the legislation in developed

countries India is still lagging behind in enacting adequate and

scientific legislations. We need to have one simple but specific and

detailed legislation dealing with several aspects referable to noise

pollution and providing measures of control therefor.

There is an equal need of developing mechanism and

infrastructure for enforcement of the prevalent laws. Those who

are entrusted with the task of enforcing laws directed towards

controlling noise pollution, must be so trained as to acquire

expertise in the matter of fighting against noise pollution by taking

preventing and deterrent measures both. They need to be

equipped with the requisite equipments such as audio meters as

would help them in detecting the level of noise pollution more so

when it crosses the permissible limits and the source thereof.

Above all, there is need for creating general awareness

towards the hazardous effects of noise pollution. Particularly, in our

country the people generally lack consciousness of the ill effects

which noise pollution creates and how the society including they

themselves stand to benefit by preventing generation and emission

of noise pollution. The target area should be educational

institutions and more particularly schools. The young children of

impressionable age should be motivated to desist from playing with

firecrackers, use of high sound producing equipments and

instruments on festivals, religious and social functions, family get-

togethers and celebrations etc. which cause noise pollution.

Suitable chapters can be added into text-books which teach civic

sense to the children and teach them how to be good and

responsible citizen which would include learning by heart of various

fundamental duties and that would obviously include learning not to

create noise pollution and to prevent if generated by others.

Holding of special talks and lectures can be organized in the schools

to highlight the menace of noise pollution and the role of the

children in preventing it. For these purposes the State must play

its role by the support and cooperation of non-government

organizations (NGOs) can also be enlisted.

Similar awareness needs to be created in police and civil

administration by means of carrying out a special drive to make

them understand the various measures to curb the problems and

the laws on the subject. Resident Welfare Associations (RAWs),

service clubs (such as Rotary International and Lions International)

and societies engaged in preventing noise pollution as part of their

projects need to be encouraged and actively involved by the local

administration. Festival and ceremonies wherein the fireworks and

crackers are customarily burst can be accompanied by earmarking

a place and time wherein and when all the people can come

together and witness or view a show of fireworks dispensing with

the need of crackers being burst in the residential areas and that

too which is done without any regard to timings. The

manufacturers can be encouraged to make such fireworks as would

display more the colours rather than make noise.

Not only the use of loudspeakers and playing of hi-fi amplifier

systems has to be regulated even the playing of high sound

instruments like drums, tom-toms, trumpets, bugles and the like

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which create noise beyond tolerable limits need to be regulated.

The law enforcing agencies must be equipped with necessary

instruments and facilities out of which sound level meters

conforming to Bureau of Indian Standards (BIS) code are a bare

necessity.

Preventive measures need to be directed more effectively at

the source. To illustrate, the horns which if fitted with the

automobiles would create hawking sound beyond permissible limits,

should not be allowed to be manufactured or sold in the market as

once they are available they are likely to be used.

Loudspeakers and amplifiers or other equipments or gadgets

which produce offending noise once detected as violating the law,

should be liable to be seized and confiscated by making provision in

the law in that behalf.

Prohibiting the sale of such firecrackers which create noise

pollution by producing noise beyond permissible limits is practically

unmanageable. A better option certainly is to prescribe the

chemical contents and composition for each type of firecrackers to

effectively curb noise pollution. The Chief Controller of Explosives

has also been agreeable to take steps in this regard but has pointed

out difficulties attributable to shortage of personnel and non-

availability of lab facilities and requisite equipments for this

purpose.

We hasten to add that during the course of the proceedings

the parties have been generally agreeable to solicit directions on

the lines as indicated hereinabove. There should be no difficulty in

issuing directions and ensuring compliance to the extent as

indicated hereinabove. Wherever there are difficulties they have to

be sorted out in the larger public interest.

DIRECTIONS

It is hereby directed as under:-

I. Firecrackers

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.

2. 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.

3. The Department of Explosives may divide the firecrackers

into two categories- (i) Sound emitting firecrackers, and (ii)

Colour/light emitting firecrackers.

4. There shall be a complete ban on bursting sound emitting

firecrackers between 10 pm and 6 am. It is not necessary to

impose restrictions as to time on bursting of colour/light

emitting firecrackers.

5. Every manufacturer shall on the box of each firecracker

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mention details of its chemical contents and that it satisfies

the requirement as laid down by DOE. In case of a 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.

6. Firecrackers for the purpose of export may be

manufactured bearing higher noise levels subject to the

following conditions: (i) The manufacturer should be

permitted to do so only when he has an export order with him

and not otherwise;(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; (iii) These firecrackers should have a different

colour packing, from those intended to be sold in India; (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.

II. Loudspeakers

1. The noise level at the boundary of the public place,

where loudspeaker or public address system or any other

noise source is being used shall not exceed 10 dB(A) above

the ambient noise standards for the area or 75 dB(A)

whichever is lower.

2. No one shall beat a drum or tom-tom or blow a trumpet

or beat or sound any instrument or use any sound amplifier at

night (between 10. 00 p.m. and 6.a.m.) except in public

emergencies.

3. The peripheral noise level of privately owned sound

system shall not exceed by more than 5 dB(A) than the

ambient air quality standard specified for the area in which it

is used, at the boundary of the private place.

III. Vehicular Noise

No horn should be allowed to be used at night (between 10

p.m. and 6 a.m.) in residential area except in exceptional

circumstances.

IV. Awareness

1. There is a need for creating general awareness towards

the hazardous effects of noise pollution. Suitable chapters

may be added in the text-books which teach civic sense to

the children and youth at the initial/early level of education.

Special talks and lectures be organised in the schools to

highlight the menace of noise pollution and the role of the

children and younger generation in preventing it. Police and

civil administration should be trained to understand the

various methods to curb the problem and also the laws on the

subject.

2. The State must play an active role in this process.

Resident Welfare Associations, service Clubs and Societies

engaged in preventing noise pollution as a part of their

projects need to be encouraged and actively involved by the

local administration.

3. Special public awareness campaigns in anticipation of

festivals, events and ceremonial occasions whereat

firecrackers are likely to be used, need to be carried out.

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The abovesaid guidelines are issued in exercise of power

conferred on this Court under Articles 141 and 142 of the

Constitution of India. These would remain in force until modified by

this Court or superseded by an appropriate legislation.

V Generally

1. The States shall make provision for seizure and

confiscation of loudspeakers, amplifiers and such other

equipments as are found to be creating noise beyond the

permissible limits.

2. Rule 3 of the Noise Pollution (Regulation and Control)

Rules, 2000 makes provision for specifying ambient air quality

standards in respect of noise for different areas/zones,

categorization of the areas for the purpose of implementation

of noise standards, authorizing the authorities for

enforcement and achievement of laid down standards. The

Central Government/State Governments shall take steps for

laying down such standards and notifying the authorities

where it has not already been done.

Though, the matters are closed consistently with the

directions as above issued in public interest, there will be liberty of

seeking further directions as and when required and in particular in

the event of any difficulty arising in implementing the directions.

The CWP, CA and all pending IAs be treated as disposed of.

Before parting, we would like to place on record our deep

appreciation of valuable assistance rendered by Shri Jitendra

Sharma, Senior Advocate assisted by Shri Sandeep Narain,

Advocate (and earlier by late Shri Pankaj Kalra, Advocate)

who highlighted several relevant aspects of the issues before us

and also helped in formulating the guidelines issued as above.