No Smoking - A Legal Perspective

Almost all of us Indians, in particular, those who do not smoke, and in general, those who smoke, are aware of the existence of the terms such as ‘No Smoking Zone’, ‘Public Place’ etc. which regulate where the smokers can or cannot smoke and where the non-smokers can have a field day. It has been noted that even though there is awareness among the general public about the above mentioned terms, the meaning, scope and extent of the words remain largely unknown to them and as well as to most of those in the legal fraternity. In order to do away with the shortage of awareness in this regard, this article shall explain the various legal provisions, i.e. the Acts, judgments, rules and regulations that are related to smoking and the restrictions imposed upon it, so that the smokers can be a bit more alert about their duties and responsibilities towards their non-smoker brethren, while the non-smokers can be more aware of their rights against the smokers.

Even though major steps in this regard were taken only after Murli S. Deora, then an ex-Member of Parliament from the Mumbai South Parliamentary constituency and presently a Member of the Rajya Sabha who has held, from 2006 to 2011, the posts of the Minister-in-Charge of the Department of Petroleum and Natural Gas, Government of India and the Minister-in-Charge of the Department of Corporate Affairs, Government of India, filed a Public Interest Litigation on behalf of the non-smokers of the country, the fact remains that there was an Act enacted much before the initiation of the case referred to above, which obliquely referred to the threat that smoking poses to the smokers, though not referring in any manner, to the threat that may be caused to the non-smokers due to passive smoking.  The Act that has been referred to in the above sentence is The Cigarettes (Regulation of Production, Supply and Distribution) Act, i.e. Act No.49 of 1975, which was enacted on the16th of August, 1975. The statement of objects and reason of The Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, inter alia, provided that, "Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic bronchitis, certain diseases of the heart and arteries cancer of bladder, prostrate, mouth pharynx and oesophagus, peptic ulcer etc. are also reported to be among the ill-effects of cigarette smoking."[2] The statements of objects and reason of the above mentioned Act went on to state that it shall be ‘An act to provide for certain restrictions in relation to trade and commerce in, and production, supply and distribution of, cigarettes and for matters connected therewith or incidental thereto.’[3] A cigarette, as defined in the definition clause of the Act included ‘any roll of tobacco wrapped in paper or in any other substance not containing tobacco or any roll of tobacco wrapped in any substance containing tobacco, which, by reason of its appearance, the type of tobacco used in the filler, or its packing and labeling is likely to be offered to, or purchased by, consumers as cigarette but did not include beedi, cheroot and cigar.’[4] Staying true to whatever that had been laid down in the statement of objects and reason of the Act concerned, the Act dealt with:-

· The restrictions on trade and commerce in, and production, supply and distribution of, cigarettes’ wherein it was stated that no person shall be able to directly or indirectly, produce, supply, distribute,[5] carry on trade or commerce[6] or import cigarettes[7] if the cigarette packages did not bear upon them ‘the specified warning’.

· The manner[8] in which the specified warning was to be made, the language[9] in which it was to be made and the size of the letters[10] in which the warning was to be made.

· The imposition of restrictions on advertisements of cigarettes or the import, for the purpose of carrying on any trade or commerce in cigarettes, of any documents, article or thing, containing any advertisement which does not contain the specified warning in aconspicuous, legible and prominent manner.[11]

· The police’s power to entry, search,[12] seize[13] and confiscate packages[14] and also the liability of the defaulting owner or owners of such faulty cigarette packages having no specified warning as enumerated under the Act,[15] [16] wherein it had also been stated that no confiscation made, costs ordered to be paid or penalty imposed under the Act shall prevent the infliction of any punishment, such as imprisonment for a term which may extend to three years, or fine which may extend to five thousand rupees, or both,[17] to which the person affected thereby would be liable under provisions of the Act.[18]

· The consequences of offences by companies.[19]

The Act discussed above basically concerned itself with the issuance of warning to the smokers or prospective smokers about the health related problems that they might have to face in the future due to their consumption of cigarettes. It was drafted in pursuance of other such Acts that were being enacted worldwide at that period of time, for e.g. after the US Federal Communications Commission ruled in June, 1967, that programmes broadcast on a television station which discussed smoking and health were insufficient to offset the effects of paid advertisements that were broadcast for five to ten minutes each day,[20] the US Congress passed, in April, 1970, a law[21] that banned  the advertising of cigarettes on television and radio starting from January 2, 1971[22]. The Act was followed, not only by India, but also by other countries such as Australia, which came up with the Tobacco Advertising Prohibition Act of 1992[23] thereby expressly prohibiting almost all forms of Tobacco advertising in Australia,[24] [25] including the sponsorship of sporting or other cultural events by cigarette brands;[26] Hong Kong, which enacted The Smoking (Public Health) Ordinance in 1982,[27] that consisted of provisions dealing with smoking bans and regulation of sales of tobacco products[28] and continues to be, with several subsequent amendments, the major part of the legal framework on tobacco control in Hong Kong.[29]

The Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, probably did not deal with ‘passive smoking’ due to the fact that concerns around second hand smoke started doing the rounds of the medical field only in the early 1970s. The term ‘passive smoking’, which means, ‘the involuntary inhaling of smoke from other people’s cigarettes, cigars, or pipes’,[30] came into existence in the period 1970-1975.[31] It was only in the early 1970s, that a number of research findings began to suggest that exposure to environmental tobacco smoke (ETS) had deleterious health consequences for non-smokers.[32] Slowly but surely the issue of ‘second hand smoke’ or ‘passive smoking’ started to take dynamic proportions, thereby catching the attention of the powers that be.

The 39th World Health Assembly of the World Health Organisation decided to take up the matter by passing a Resolution[33] in its Fourteenth Plenary meeting held on the 15thof May, 1986, urging the Member States of the World Health Organisation, which had not by that time done so, to implement the measures to ensure that effective protection was provided to non-smokers from involuntary exposure to Tobacco smoke and to protect children and young people from being addicted to the use of tobacco.[34] The 43rd World Health Assembly of the World Health Organisation, in its Fourteenth Plenary meeting held on the 17th of May, 1990, reiterated in the Resolution[35] passed by it, the concerns expressed in the Resolution passed in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies, plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect advertising, promotion and sponsorship concerning tobacco.[36]

Unfortunately it was seen that despite the directions of the World Health Organisation vide the above mentioned World Health Assemblies, coupled with those laid down by the other Assemblies of the World Health Organisation dealing with the same or similar topics, very little attention was paid to the issue in India. Neither the Indian Government nor the Indian Parliament was seen to be keen on taking any proactive steps in order to protect the rights of the non-smokers against smoking in public places even a decade after the above mentioned Assemblies of the W.H.O. were held. This led to Murli S. Deora, presently a Rajya Sabha and then a Lok Sabha member, to take up the cudgels for the non-smokers and approach the Supreme Court of India in as late as in 1999 to persuade the Hon’ble Court to declare the affliction of various diseases, including lung cancer and those of the heart, on non-smokers, only because they are required to go to the public places, as an indirect deprivation of their lives without any process of law. The Supreme Court upheld the contention of the petitioner when it held the above to be a violation of the fundamental right to life of the non-smokers guaranteed under Article 21 of the Constitution of the Republic of India.[37] The Hon’ble Court stated in its judgment, delivered on the 2nd of November, 2001, that ‘Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution.’ The concerned Judges went on to quote the statement of objects and reason of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, which stated that, “Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs.13,500/- crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco industry”.

While pointing out that even the provisions of the above mentioned 1975 Act[38]were not being implemented with due sincerity, the Hon’ble Court had, when the petition under Article 32 of the Constitution of India came for orders on 31st August, 2001, had ordered the government to ensure that its provisions are properly implemented. In the petition, it was ‘pointed out that tobacco smoking contains harmful contents including nicotine, tar, potential carcinogens, carbon monoxide, irritants, asphyxiates and smoke particles which are the cause of many diseases including the cancer.’ It was ‘alleged that three million people die every year as a result of illness related to the use of tobacco products of which one million people belong to developing countries like India. The World Health Organisation was stated to have estimated that tobacco related deaths can rise to a whopping seven million per year. According to the organisation, in the last half century in the developing countries alone smoking had killed more than sixty million people. Tobacco smoking also added to the air pollution. Besides cancer, tobacco smoking was responsible for various other fatal diseases to the mankind. It was further submitted that statutory provisions were being made for prohibiting smoking in public places and the Bill introduced in the Parliament was pending consideration before a Select Committee. The State of Rajasthan had claimed to have passed Act No.14 of 2000 to provide for prohibition of smoking in place of public work or use and in public service vehicles for that State. It was further stated that in Delhi also there was prohibition of smoking in public places.’

The Leaned Attorney General for India, along with the Counsels appearing on behalf of the other parties, agreed about ‘the adverse effect of smoking in public places’ and submitted that it be ‘prohibited in public places till a statutory provision was to be made and implemented by the legislative enactment’. ‘Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers’, the Hon’ble Court prohibited smoking in public places and issued directions to the Union of India, State Governments as well as the Union territories to take effective steps to ensure prohibiting smoking in public places, namely:- 1. Auditoriums, 2. Hospital Buildings, 3. Health Institutions, 4. Educational Institutions, 5. Libraries, 6. Court Buildings, 7. Public Office and 8. Public Conveyances, including Railways. The Learned Attorney General for India had ‘assured the court that Union of India shall take necessary effective steps to give wide publicity to the order by electronic as well as print media to make the general public aware of this order of prohibition of smoking.’

In furtherance of what had been submitted by the Attorney General for India before the Hon’ble Supreme Court of India, the Parliament came up with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act [39] in the year 2003. The Act, that was passed by the Rajya Sabha on the 9th of April, 2003 and by the Lok Sabha on the 30th of April, 2003, stated in its statement of objects and reason that it was an Act ‘to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto.’ Vide Notification numbered S.O. 238(E)., issued on the 25th of February, 2004, by the Ministry of Health and Family Welfare (Department of Health), the 1st day of May, 2004 was chosen to be the date when the Act came into force.

The Act defined, inter alia, the words “tobacco products”[40] in the Schedule[41] to include Cigarettes, Cigars, Cheroots, Beedis, Cigarette tobacco, pipe tobacco and hookahtobacco, Chewing tobacco, Snuff, Pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called), Gutka and Tooth powder containing tobacco. It also stated that ‘No person shall smoke in any public place’, provided that, in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made.[42] The Act also prohibited the advertisement of cigarettes by any person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products or by any person having control over a medium that may be used to advertise cigarettes or any other tobacco products. It further prohibited anyone from taking part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products. The Act further prohibited any person from directly or indirectly, displaying, causing to display, or permitting or authorising to display any advertisement of cigarettes or any other tobacco product; or from selling or causing to sell, or permitting or authorising to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or from distributing, causing to distribute, or permitting or authorising to distribute to the public, any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or from erecting, exhibiting, fixing or retaining upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or from displaying in any manner whatsoever, in any place, any advertisement of cigarettes or any other tobacco product, provided that the restrictions won’t be applicable to an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product and the advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.[43] It further prohibited any person, under any contract or otherwise, from promoting or agreeing to promote the use or consumption of cigarettes or other tobacco products.[44] The Act further provides for restrictions relating to the sale of such products, i.e. the age of the consumers to whom it is to be sold and the places where it is not to be sold.[45] It also provides for the specifications of the ‘warning’ that is to be printed on all packages of cigarettes [46] and also the language of such warnings.[47] The Act also made the violation of any of its provisions a punishable offence.[48] It also provides for the compounding of certain offences.[49]

In furtherance of the provisions of the Act, many rules have been formulated by the Central Government, to deal with the scourge of smoking and especially, its effects on the health of the non-smokers. Such rules include the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, production, Supply and Distribution) Rules, 2004, the Prohibition on sale of Cigarettes and other Tobacco Products around Educational Institutions Rules, 2004 (which defines Educational Institutions to include schools, colleges and institutions of higher learning established or recognized by an appropriate authority and prohibits the sale of cigarettes and other tobacco products in an area within a radius of one hundred yards to be measured radially starting from the outer limit of boundary wall, fence or as the case may be, of the educational institution)[50], the Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of  Trade and Commerce, Production, Supply and Distribution) Rules, 2005[51] and Prohibition of Smoking in Public Places Rules, 2008.[52]

The last among the above mentioned rules has the biggest influence on our everyday lives since it consists of both the groups into which humanity is divided into, i.e. the smokers and the non-smokers. The Rules were formulated in exercise of the powers conferred upon the Central Government by section 31 of the 2003 Act[53] and in suppression of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, production, Supply and Distribution) Rules, 2004. The Rules provide for the prohibition of smoking in a public place wherein it has been stated that the owner, manager, proprietor, supervisor or in charge of the affairs of a public place shall ensure that no person smokes in a public place under his jurisdiction, wherein a public place has been defined to include work places, shopping malls and cinema halls[54]; that a board, as specified in Schedule II is displayed prominently at the entrance of or entrances to each such public place and in conspicuous places inside such places as well; that ashtrays, matches, lighters or other things designed to facilitate smoking are not provided for in public places and that the above mentioned persons shall provide for a prominent display of the name of the persons to whom complaints may be lodged in cases of violation of the above mentioned rules relating to smoking. In case of any violation of the above mentioned rules, the persons mentioned above shall be liable to pay equivalent fine for the number of individual offences.[55]  The Rules further provides for special provisions for hotels, restaurants and airports, wherein it has been stated that the owner, proprietor, manager, supervisor, in charge of a hotel having 30 or more rooms or a restaurant having a seating capacity of 30 or more persons, and the manager of airport would have to provide for a smoking area or space[56] which has been defined in the Rules as a ‘separately ventilated smoking room that is physically separated and surrounded by height walls on all four sides, has an entrance with an automatically closing door normally kept in closed position, has an airflow system that is ‘exhausted directly to the outside and not mixed back into the supply of air into the other parts of the building and that it is fitted with a non re-circulating exhaust ventilation system or air cleaning system or combination of the two to ensure that air discharges only in a manner that does not re-circulate or transfer it from a smoking area or space to non-smoking areas’.[57]

It has further been stated that the smoking area shall not be established at the entrance and exit of the hotel, restaurant and airport and shall be distinctively marked as ‘Smoking Area’ in English and one Indian language, as applicable. It has further been stated in the rules that a Smoking Area or space shall be used only for the purposes of smoking and no other services shall be allowed. The manner of designation of separate smoking rooms has also been provided for in the Rules.[58] The authorized officers have been given the power to act under and compound the offences committed due to violation of Rule 4 of the concerned Rules.[59]

The Authorized persons responsible for collecting fines against the violation include those in charge of designated areas and have been provided for under the above mentioned Rules.[60] They are, for instance:

· For Public places: Tax inspectors, health directors, central/state administrator heads,  anti-tobacco nodal officers

· For Railways: Station leaders

· For Government offices: Gazettes officers

· For Hospitals: Hospital heads (i.e., directors, superintendents, administration heads)

· For Post offices: Post masters

· For Private offices/workplaces: Office head (i.e., managers, administration heads)

· For Educational institutions: Institution heads (i.e., principals, headmasters, teachers)

· For Libraries: Library heads, assistants, and librarians

· For Airports: Airport heads (i.e., managers, airport/airline officers).

Thus, it can be concluded that the smoking related laws and rules in our country and indeed, the whole world have come a long way since the days when smoking was considered to be harmful only for the smokers. It is now to be seen how much these detailed provisions are implemented the world over in order to save humanity from further smoke related disorders. It is to be mentioned that as per the World Health Organisation Fact Sheet,[61]

·  Tobacco kills up to half of its users.

· Tobacco kills nearly six million people each year, of whom more than 5 million are users and ex users and more than 600 000 are nonsmokers exposed to second-hand smoke. Unless urgent action is taken, the annual death toll could rise to more than eight million by 2030.

· Nearly 80% of the world's one billion smokers live in low- and middle-income countries.

Those statistics, by themselves, go on to show the gravity of problem of smoke related disorders that has engulfed the whole world as of this day. Under such circumstances, India, being a developing country and one that is afflicted with such problems at a scale much more than that of the western world, needs to adopt and implement, as far as is possible and feasible, the provisions of the World Health Organisation Framework Convention on Tobacco Control of 2003.[62]

By Avik Ghatak[1]