HC- State needs extra measures to save millions from tobacco's ill effects
The Allahabad High Court, Lucknow Bench directed the Union Government and its authorities to take certain extra measures other than the measures prescribed in the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Tobacco Act) for saving millions of peoples from suffering the hazards and ill effects of use and sale etc. of tobacco and tobacco products.
The bench consisting of Justice Imtiyaz Murtaza and Justice D K Upadhyaya gave this order in the PIL filed by me and wife Nutan asking for complete ban on manufacture, sale, import etc of cigarette and other tobacco products.
At the same time, the High Court rejected the petitioners' prayers to declare the provisions of Tobacco Act ultra vires to Articles 14 and 21 of the Constitution of India.
The Court said that the ill effects and health of tobacco products is not in doubt at all but it cannot be said or inferred that the provisions of Tobacco Act in any manner allow or permit the sale or use. This Act has been enacted not to provide for restriction of sale or use of the tobacco products but to regulate their trade and commerce. Hence, the alleged natural corollary drawn by the petitioners to infer that the Tobacco Act allows or permits sale and use of tobacco appears to be misconceived because regulation of sale is one thing and permission and liberty to sale or s altogether different.
Thus the Court refused to put complete ban on tobacco, at the same time directing the Union government to take extra measures in this direction.
Amitabh Thakur
# 094155-34526
# 094155-34526
High Court order--
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Case :- MISC. BENCH No. - 2367 of 2014
Petitioner :- Amitabh Thakur & Anr. [P.I.L.]
Respondent :- Union Of India Thru. Secretary,Ministry Of Health & Family W
Counsel for Petitioner :- Amitabh Thakur (In Person,Nutan Thakur (In Person)
Counsel for Respondent :- A.S.G.
Hon'ble Imtiyaz Murtaza,J.
Hon'ble Devendra Kumar Upadhyaya,J.
Based on certain reports of World Health Organization on the ill effects of use of tobacco and tobacco products on human health, this public interest litigation petition seeks to challenge the provisions of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as 'Tobacco Act, 2003'). The petitioners have sought declaration from the Court that the said Act is ultra vires to the provisions of Articles 14 and 21 of the Constitution of India.
Heard Sri Amitabh Thakur-petitioner no.1, who appeared in person. Learned Additional Solicitor General of India has been heard for sole respondent-Union of India.
Quoting extensively from a report by the World Health Organization and also from some scientific study and research papers, the petitioners have highlighted in the writ petition the ill effects of tobacco and other tobacco products on those who in one form or the other use the same. The tobacco and other tobacco products have been identified as substances causing adverse effect on various organs of human body and also for causing various diseases which are fatal in nature. Heart attack, strokes, chronic obstructive pulmonary disease, hypertension and cancer are only a few to name.
Highlighting the toxicological risk of use of tobacco products, it has been submitted by the petitioners that it would be in public interest, if the respondent-Union of India is directed to completely ban all kinds of sale, purchase, preparation, manufacturing and import etc. of cigarette or any other tobacco product except for medicinal or scientific purposes in a manner akin to the manner provided for under the relevant provisions of Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner no.1, who argued the petition, has submitted that the tobacco products not only cause ill effects on health of the persons using the same but in certain cases even to those who do not directly consume the tobacco products such as cigarettes. He further stated that passive smokers or the second hand smokers also put their lives and health to risk of causing disease.
It has also been argued by the petitioner no.1 that certain provisions of the Tobacco Act, 2003 permit restricted sale and use of tobacco products and since any use of tobacco by any individual puts the individual to risk of life and hence permission of any such sale, even restricted sale is violative of Article 21 of the Constitution of India invoking the doctrine of parens patriae (which means father of the country). The petitioners have stated that the State is under obligation to protect its citizens so that right to live with dignity is ensured to each and every individual.
The petitioner no.1 has also submitted that Hon'ble Apex Court in the case of Smt Gian Kaur vs State of Punjab, reported in 1996, SCC (2) 648 has clearly held that "right to die" does not fall within the ambit of Article 21 of the Constitution of India and hence, any provision permitting even restricted sale or use of tobacco products cannot be permitted as citizens of country do not enjoy the right to die.
Sri Thakur has also argued that Section 6 of the Tobacco Act, 2003 prohibits sale of cigarette or any other tobacco product to any person who is under 18 years, thus it permits the sale of cigarette or any other tobacco product to a person above the age of 18 years which in turn is discrimanatory and thus violative of Article 14 of the Constitution of India.
Sri Thakur has pressed Article 14 of the Constitution of India into service to attack the provision of Section 4 of the Tobacco Act, 2003 terming it to be discrimanatory inasmuch as that Section 4 prohibits smoking in public place whereas it does not prohibit smoking in other places like houses/residences.
Based on this alleged discrimination, Sri Thakur has submitted that the Tobacco Act, 2003 permits sale of tobacco products, though in a restricted manner, however, tobacco and tobacco products being harmful to health cannot, thus, be permitted to be sold or used and such permission of sale or use of tobacco products is violative of Article 21 of the Constitution of India. He has also drawn attention of the Court to the preamble of Tobacco Act, 2003 and states that the restricted/limited sale or use of tobacco and tobacco products permitted by the Tobacco Act, 2003 runs contrary to the preamble of the Act, that is to say, provisions of the Act run contrary to the object which was sought to be achieved by the parliament while enacting the said Act.
On the other hand, learned counsel appearing for Union of India has submitted that the petitioners ought to have impleaded manufactures of the tobacco and tobacco products as respondents in the writ petition for the reason that if the prayer made in the writ petition is granted, the same would adversely affect the manufacturers, hence, the writ petition suffers from the vice of non-joinder of the necessary parties.
We have heard the competing arguments made by the petitioners and learned counsel for the respondent.
Taking up the issue raised by the learned counsel for the respondent that the petition is not maintainable for the reason that it suffers from the vice of the non-joinder of necessary parties, we may observe that since validity of the Parliamentary Act is under challenge in this petition, the matter can proceed even in absence of the manufacturers, hence the said objection raised by him is not found tenable.
Now coming to the merits of the arguments made by the petitioners, we may observe that so far as the ill effects and health hazards to which a user of tobacco or tobacco products puts himself/herself is concerned, various studies by the World Health Organization and other institutions and various scientific studies and research studies have already been done and the same is not in doubt at all.
We may, however, notice that the Tobacco Act, 2003 was enacted by the parliament to prohibit the advertisement of cigarettes and other tobacco products and also for the purposes of regulating the trade and commerce in, and production, supply and distribution of the said articles. The Tobacco Act, 2003 was not enacted by the parliament for permitting restricted or limited sale or use of tobacco or tobacco products. The preamble of a statute or any piece of legislation provides the basic premise on which provisions of an Act of legislature can be understood and thereupon interpreted.
A reading of the preamble of the Act reveals that the Tobacco Act, 2003 was enacted by the parliament to provide for taking effective measures for protecting the people from involuntary exposure to tobacco smoke. The said measures were considered by the parliament in its zeal to consider the tobacco control stretegies.
Section 4 of the Tobacco Act, 2003 clearly states that no person shall smoke in any public place. However, it prescribes that a seperate provision for smoking area or space may be made in a hotel or restaurant or in the airports.
Section 5 of the Tobacco Act, 2003 in an unambiguous term prohibits the advertisement by any person engaged in production, supply or distribution of cigarette or any other tobacco product. It also prohibits any person having control over any media to advertise the cigarette or any other tobacco product. It further provides that no person shall promote or agree to promote use or consumption of cigarette or any other tobacco product.
Section 6 of the Act states that no person shall sale or offer for sale or permit sale of cigarette or any other tobacco product to a person who is under 18 years of age and also in an area within a radius of one hundred yards of any educational institution.
Thus, the aforesaid prohibition contained in Sections 4,5 and 6 of the Tobacco Act, 2003 regarding smoking in public place, advertisement of cigarette and other tobacco products and sale of cigarette or any other tobacco product to a person below the age of 18 years, only put restriction on sale, use and advertisement. However, it cannot be said or inferred that the provisions of Tobacco Act, 2003 in any manner allow or permit the sale or use. The Tobacco Act, 2003 has been enacted by the parliament not to provide for restriction of sale or use of the tobacco products but to regulate the trade and commerce in, and production, supply and distribution of said articles.
Thus, the alleged natural corollary being sought to be drawn by the petitioners, from a reading of the provisions of Tobacco Act, 2003, to infer that the Tobacco Act allows or permits sale and use of tobacco appears to be misconceived.
Regulation of sale or use of tobacco and tobacco products is one thing and permission/liberty to sale or use of tobacco and tobacco products is altogether different.
As regards the argument raised by the petitioners based on the alleged discrimination and the provisions of Article 14 of the Constitution of India, we do not find the same to have any substance though, in the first sight the argument appears to be impressive.
Submission of the petitioners that restriction of sale of cigarette and other tobacco products outside the area of radius of one hundred yards of an educational institutions vis-a-vis the restriction of sale of the same substance within the radius of one hundred yards of the educational institution amounts to discrimination does not appear to be sound. Prohibition of sale within the radious of one hundred yards of an educational institutions has a purpose and object sought to be achieved that is to prevent the students of the eductional institutions from use of the tobacco and tobacco products.
Similarly, the argument of the petitioners that if there is complete prohibition in any public place, the same should also apply to other places, even to the household, is also highly misconceived for the reason that there are certain liberties and activities which are permitted and enjoyed by one and all within the household but the same cannot be permitted to be enjoyed outside the household. The alleged discrimination based on public place and non-public place is also misconceived.
So far as the argument of the petitioners based on the principles enshrined in Article 21 of the Constitution of India is concerned, there cannot be any quarrel or dispute that it is the duty of the State to ensure the right to life to every citizen and right to life would mean right to live with dignity. However, argument based on the judgement of Hon'ble Apex Court in the case of Gian Kaur Versus State of Punjab (Supra) is misplaced, since the argument of petitioners to the effect that the Tobacco Act, 2003 permits limited restriction of sale to use of tobacco or mandates has been found to be untenable.
In view of above discussion, the writ petition fails and is hereby dismissed.
Before parting with the case, we may, however, observe that the State and its authorities are required to take certain extra measures other than the measures prescribed in the Tobacco Act, 2003 for saving millions of peoples from suffering and the hazards and ill effects of use and sale etc. of tobacco and tobacco products.
Order Date :- March 31, 2014
Renu/-
Reserved
Case :- MISC. BENCH No. - 2367 of 2014
Petitioner :- Amitabh Thakur & Anr. [P.I.L.]
Respondent :- Union Of India Thru. Secretary,Ministry Of Health & Family W
Counsel for Petitioner :- Amitabh Thakur (In Person,Nutan Thakur (In Person)
Counsel for Respondent :- A.S.G.
Hon'ble Imtiyaz Murtaza,J.
Hon'ble Devendra Kumar Upadhyaya,J.
Based on certain reports of World Health Organization on the ill effects of use of tobacco and tobacco products on human health, this public interest litigation petition seeks to challenge the provisions of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as 'Tobacco Act, 2003'). The petitioners have sought declaration from the Court that the said Act is ultra vires to the provisions of Articles 14 and 21 of the Constitution of India.
Heard Sri Amitabh Thakur-petitioner no.1, who appeared in person. Learned Additional Solicitor General of India has been heard for sole respondent-Union of India.
Quoting extensively from a report by the World Health Organization and also from some scientific study and research papers, the petitioners have highlighted in the writ petition the ill effects of tobacco and other tobacco products on those who in one form or the other use the same. The tobacco and other tobacco products have been identified as substances causing adverse effect on various organs of human body and also for causing various diseases which are fatal in nature. Heart attack, strokes, chronic obstructive pulmonary disease, hypertension and cancer are only a few to name.
Highlighting the toxicological risk of use of tobacco products, it has been submitted by the petitioners that it would be in public interest, if the respondent-Union of India is directed to completely ban all kinds of sale, purchase, preparation, manufacturing and import etc. of cigarette or any other tobacco product except for medicinal or scientific purposes in a manner akin to the manner provided for under the relevant provisions of Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner no.1, who argued the petition, has submitted that the tobacco products not only cause ill effects on health of the persons using the same but in certain cases even to those who do not directly consume the tobacco products such as cigarettes. He further stated that passive smokers or the second hand smokers also put their lives and health to risk of causing disease.
It has also been argued by the petitioner no.1 that certain provisions of the Tobacco Act, 2003 permit restricted sale and use of tobacco products and since any use of tobacco by any individual puts the individual to risk of life and hence permission of any such sale, even restricted sale is violative of Article 21 of the Constitution of India invoking the doctrine of parens patriae (which means father of the country). The petitioners have stated that the State is under obligation to protect its citizens so that right to live with dignity is ensured to each and every individual.
The petitioner no.1 has also submitted that Hon'ble Apex Court in the case of Smt Gian Kaur vs State of Punjab, reported in 1996, SCC (2) 648 has clearly held that "right to die" does not fall within the ambit of Article 21 of the Constitution of India and hence, any provision permitting even restricted sale or use of tobacco products cannot be permitted as citizens of country do not enjoy the right to die.
Sri Thakur has also argued that Section 6 of the Tobacco Act, 2003 prohibits sale of cigarette or any other tobacco product to any person who is under 18 years, thus it permits the sale of cigarette or any other tobacco product to a person above the age of 18 years which in turn is discrimanatory and thus violative of Article 14 of the Constitution of India.
Sri Thakur has pressed Article 14 of the Constitution of India into service to attack the provision of Section 4 of the Tobacco Act, 2003 terming it to be discrimanatory inasmuch as that Section 4 prohibits smoking in public place whereas it does not prohibit smoking in other places like houses/residences.
Based on this alleged discrimination, Sri Thakur has submitted that the Tobacco Act, 2003 permits sale of tobacco products, though in a restricted manner, however, tobacco and tobacco products being harmful to health cannot, thus, be permitted to be sold or used and such permission of sale or use of tobacco products is violative of Article 21 of the Constitution of India. He has also drawn attention of the Court to the preamble of Tobacco Act, 2003 and states that the restricted/limited sale or use of tobacco and tobacco products permitted by the Tobacco Act, 2003 runs contrary to the preamble of the Act, that is to say, provisions of the Act run contrary to the object which was sought to be achieved by the parliament while enacting the said Act.
On the other hand, learned counsel appearing for Union of India has submitted that the petitioners ought to have impleaded manufactures of the tobacco and tobacco products as respondents in the writ petition for the reason that if the prayer made in the writ petition is granted, the same would adversely affect the manufacturers, hence, the writ petition suffers from the vice of non-joinder of the necessary parties.
We have heard the competing arguments made by the petitioners and learned counsel for the respondent.
Taking up the issue raised by the learned counsel for the respondent that the petition is not maintainable for the reason that it suffers from the vice of the non-joinder of necessary parties, we may observe that since validity of the Parliamentary Act is under challenge in this petition, the matter can proceed even in absence of the manufacturers, hence the said objection raised by him is not found tenable.
Now coming to the merits of the arguments made by the petitioners, we may observe that so far as the ill effects and health hazards to which a user of tobacco or tobacco products puts himself/herself is concerned, various studies by the World Health Organization and other institutions and various scientific studies and research studies have already been done and the same is not in doubt at all.
We may, however, notice that the Tobacco Act, 2003 was enacted by the parliament to prohibit the advertisement of cigarettes and other tobacco products and also for the purposes of regulating the trade and commerce in, and production, supply and distribution of the said articles. The Tobacco Act, 2003 was not enacted by the parliament for permitting restricted or limited sale or use of tobacco or tobacco products. The preamble of a statute or any piece of legislation provides the basic premise on which provisions of an Act of legislature can be understood and thereupon interpreted.
A reading of the preamble of the Act reveals that the Tobacco Act, 2003 was enacted by the parliament to provide for taking effective measures for protecting the people from involuntary exposure to tobacco smoke. The said measures were considered by the parliament in its zeal to consider the tobacco control stretegies.
Section 4 of the Tobacco Act, 2003 clearly states that no person shall smoke in any public place. However, it prescribes that a seperate provision for smoking area or space may be made in a hotel or restaurant or in the airports.
Section 5 of the Tobacco Act, 2003 in an unambiguous term prohibits the advertisement by any person engaged in production, supply or distribution of cigarette or any other tobacco product. It also prohibits any person having control over any media to advertise the cigarette or any other tobacco product. It further provides that no person shall promote or agree to promote use or consumption of cigarette or any other tobacco product.
Section 6 of the Act states that no person shall sale or offer for sale or permit sale of cigarette or any other tobacco product to a person who is under 18 years of age and also in an area within a radius of one hundred yards of any educational institution.
Thus, the aforesaid prohibition contained in Sections 4,5 and 6 of the Tobacco Act, 2003 regarding smoking in public place, advertisement of cigarette and other tobacco products and sale of cigarette or any other tobacco product to a person below the age of 18 years, only put restriction on sale, use and advertisement. However, it cannot be said or inferred that the provisions of Tobacco Act, 2003 in any manner allow or permit the sale or use. The Tobacco Act, 2003 has been enacted by the parliament not to provide for restriction of sale or use of the tobacco products but to regulate the trade and commerce in, and production, supply and distribution of said articles.
Thus, the alleged natural corollary being sought to be drawn by the petitioners, from a reading of the provisions of Tobacco Act, 2003, to infer that the Tobacco Act allows or permits sale and use of tobacco appears to be misconceived.
Regulation of sale or use of tobacco and tobacco products is one thing and permission/liberty to sale or use of tobacco and tobacco products is altogether different.
As regards the argument raised by the petitioners based on the alleged discrimination and the provisions of Article 14 of the Constitution of India, we do not find the same to have any substance though, in the first sight the argument appears to be impressive.
Submission of the petitioners that restriction of sale of cigarette and other tobacco products outside the area of radius of one hundred yards of an educational institutions vis-a-vis the restriction of sale of the same substance within the radius of one hundred yards of the educational institution amounts to discrimination does not appear to be sound. Prohibition of sale within the radious of one hundred yards of an educational institutions has a purpose and object sought to be achieved that is to prevent the students of the eductional institutions from use of the tobacco and tobacco products.
Similarly, the argument of the petitioners that if there is complete prohibition in any public place, the same should also apply to other places, even to the household, is also highly misconceived for the reason that there are certain liberties and activities which are permitted and enjoyed by one and all within the household but the same cannot be permitted to be enjoyed outside the household. The alleged discrimination based on public place and non-public place is also misconceived.
So far as the argument of the petitioners based on the principles enshrined in Article 21 of the Constitution of India is concerned, there cannot be any quarrel or dispute that it is the duty of the State to ensure the right to life to every citizen and right to life would mean right to live with dignity. However, argument based on the judgement of Hon'ble Apex Court in the case of Gian Kaur Versus State of Punjab (Supra) is misplaced, since the argument of petitioners to the effect that the Tobacco Act, 2003 permits limited restriction of sale to use of tobacco or mandates has been found to be untenable.
In view of above discussion, the writ petition fails and is hereby dismissed.
Before parting with the case, we may, however, observe that the State and its authorities are required to take certain extra measures other than the measures prescribed in the Tobacco Act, 2003 for saving millions of peoples from suffering and the hazards and ill effects of use and sale etc. of tobacco and tobacco products.
Order Date :- March 31, 2014
Renu/-
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