Time and again issues related to tobacco control have been raised in front of the courts of the country. Some of the judicial verdicts have gone a long way in influencing public policies as well as trade practices. These cases were brought about by citizens advocating tobacco control or by the tobacco industry against the regulatory measures brought about. The article discusses some of the important cases that have come up for consideration before our worthy courts.
Judicial Activism
PIL or Public Interest Litigation has been the primary tool that has been
used for attracting judiciary’s attention towards tobacco control. What makes PIL important is the fact that the action may not be brought about by a party that has been directly affected. Even a letter written by an individual citizen or a group can result in the courts taking action. There have been instances where the courts of the land based on newspapers reports and in public interest have taken action suo motto. The result has been several landmark judgments in the area of public health and environmental pollution. PIL’s have often been used to safeguard citizen’s fundamental rights.
Let us look at some of these landmark cases:
Ban on Smoking at Public Places
With regards to ban on smoking at public places there have been two
important PIL’s. The first was C.W.P. No. No. 24160/1998, in the Kerala High Court and the second was Murli Deora versus Union of India and Others 1999: C.W.P. No. 316/99. While in the first smoking at public places was challenged as violative of ‘Right to Life’ under Article 21 of the Constitution and amounting to ‘Public Nuisance’ under the Indian Penal Code, in the second one the grounds were many. The writ petition was based on the contention that smoking at public place amounted to infringement of:
- Fundamental rights under Articles 14 (Right to Equality), 19 (Right to Freedom) and 21 (Right to Life)
- Denial of Article 39(e) (Duty of the state to ensure that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength)and Article 47 (Duty of the state to State to raise the level of nutrition and the standard of living and to improve public health, particularly by prohibiting intoxicating drinks and drugs injurious to health except for medicinal purposes) under the Directive Principles of State Policy of the Constitution.
- The Cigarettes Act, 1975 had failed to achieve its objectives and that the statutory warning was mild and inadequate in nature.
- The business of tobacco should be considered as a noxious trade and a national policy be framed for prohibiting smoking at public places.
While the first petition resulted in a ban on smoking at public places in the State of Kerala, the second led to a ban on smoking at public places all throughout the country. The center and the state government were given orders to initiate appropriate action.
Ban on manufacture and sale of toothpastes and toothpowders containing tobacco (Laxmikant versus Union of India and others case 739 of 1997)
The Central Government proceeded to place a blanket ban on manufacture and sale of toothpastes and toothpowders that contained tobacco. The move did not go well with the industry that challenged the ban on the basis that it affects a citizen’s right to carry on trade or business as per his or her choice under Article 19(1).
The case was decided in favor of the Government and the ban was upheld. The Supreme Court considered the move justified on the basis of public interest. It was held that though it violates Article 19(1) (right to carry on trade) the ban was well justified under Article 19(6).
It would be wrong to discuss only those cases that have supported an anti-tobacco environment. It is important to look at some other cases too.
Litigation against direct and indirect advertisement of tobacco products
There was a time when advertisements related to tobacco products was legal and during such times the ITC giant started a contest intended for Indian married couples residing in the country. One of the partners in the couple was to be a smoker and prize winning couples were photographed at glamorous locations. These photographs were widely advertised. Along with the photograph was image of a Wills cigarette and the filter and a slogan ‘Made for Each Other’. Voice (The Voluntary Organization in Interest of Consumer Education) filed a case under MRTPC (Monopolies Restrictive Trade Practices Act) against ITC. The petition was struck down by the MRTP Courts and subsequently the appeal was also rejected by the Supreme Court. In 2004 with a ban on all forms of advertisements the campaign was withdrawn by ITC.
In 1999 a petition was filed by a voluntary association before the High
Court of Delhi against surrogate advertisement by Cigarette Companies. The petition especially discussed the appearance of Wills logo on the apparel worn by the players. During pendency of the petition it was to light for the Courts that a Bill banning all forms of direct and indirect advertisement was pending in the house. The Courts decided not to consider the petition. Much before the bill was passed ITC once again withdrew its sponsorship of the Indian cricket team in the year 2001.
Ban on sale of gutka
In the year 2002 some of the State Governments proceeded to ban the sale of gutka under the Prevention of Food Adulteration Act, 1954. Gutka comes under the purview of the Act for the reason that it is classified as a food item. The ban was challenged by the manufacturers on various grounds including the fact that there was a ban on chewing tobacco when there was no such ban on smoking tobacco and that the ban was imposed only in a few states while the products were being sold in other states.
The Supreme Court upheld the challenges by the gutka manufacturers on the basis that it was only the Central Government that had the power to ban these products (Section 23 of the Act). The judgment does endorse the safety of gutka rather highlights that it is only the state government that has the powers to issue such a ban.
Liability and compensation matters
Laws with regards to liability and compensation have still not been defined in the country.
References:
The Constitution of India, 1950
