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Introduction:

Medical studies depict that smoking results in numerous health issues for the person smoking as well as those close to him. Consequently, it is widely believed that smoking must not be permitted in public places.

Opponents of the ban claim that passive smokers need not take the risk of going to places where smoking is permitted. Additionally, they allege that a ban might lead to bars and pubs shutting down. Ultimately, they contend that smoking ought to be considered in light of freedom of choice.[1]

Scope

The general purpose of this article is to establish an overview of India’s legal stance on the habitual practice of smoking. The article delves into peripheral facets of the same by studying the historical emergence of laws on cigarettes and tobacco and the flexibility of an average citizen to smoke in different countries through an international perspective. The paper concludes on how smoking as a habit is not warranted to be a right by the Constitution and that it is only bound to cause harm to the general public in the long run.

Smoking vs Free Environment

The problem presented by cigarettes has been addressed by many nations with varying degrees of success.  On one hand, economically strong countries reflect a strong commitment to flexible values and depict an intriguing set of beliefs and traditions towards privacy and independence while on the other hand, there are developing countries such as India, the world’s largest democracy, which remain unmentioned.[2]

The debate boils down to the dilemma between one’s free choice of smoking which may be arguably considered as a form of personal liberty under Article 21 of the Constitution[3] and the duty of the State to ensure a free and healthy environment for its citizens under Part IV (Directive Principles of State Policy) under the Indian Constitution.[4]

History

India has borne a leading role in global cigarette control. Given the increasing proof of the harmful and hazardous impact of cigarettes, the Government of India enforced several legislations and exhaustive cigarette control measures including the Cigarettes Act (Regulation of Production, Supply and Distribution) of 1975.[5]

Smoking was prohibited in every health-related and educational organization, domestic planes, air-conditioned trains, metros, and buses, by way of a memorandum issued in 1990 by the Cabinet Secretariat.  However, these were devoid of the status of being a legitimate instrument. Having no clarity with regard to the enacting guidelines of the citizens to their contended right to a pollution-free environment, the execution of the said directive stayed mostly ineffective.[6]

Legislations

The Cable Television Networks (Amendment) Act introduced in 2000 prohibited cigarette advertising in state-regulated media and cable television.[7] Before this, in November 1995, the Ministry of Health was directed to implement a law for the sake of non-smokers’ protection from second-hand smoke.

In 2003, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (COTPA), was enforced which provided that smoking in public places, advertisements, and sale of cigarettes to and by minors, within a stipulated distance from educational institutions ought to be prohibited. It was also made compulsory to depict non-linguistic health signals on cigarette packages. Even though the directives regarding different provisions of the legislation were issued from 2004 to 2006, there were numerous legal problems that the State had to address, keeping in mind the cigarette industry, contradicting the majority of the Rules before the court of law. However, subsequent to a seemingly ceaseless legal dispute and interference from the civil society, renewed smoke-free regulations were brought forth and established from 2nd October 2008 onwards.[8]

International Perspective

The first nation in the entire world to place a complete ban sale and use of cigarettes was Bhutan.[9] Subsequently, a similar prohibition was introduced in China in the public structures of its capital in May 2008 rearing the Olympic Games[10] and an overall ban effectually came into being exactly three years later. Singapore has likewise strived for such laws since the late 20th century and accordingly strengthened them decade-by-decade.  Hong Kong introduced a smoking-prohibited legislation in 1982 only to be able to implement it solely after 2007.  Nations such as Indonesia (2006), Malaysia (2004), Pakistan (2003), and Vietnam (2005) have attempted to bring forth the aforesaid measures but the implementation of the same is nowhere near achieved.[11]

The Government of India ratified the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) in 2004, which stipulates crucial plans for decreasing the demand and supply of cigarettes. The reduction of supply strategies cater for addressing illegal trade, providing alternate employment to cigarette-industry workers as well as for controlling its sale to and by minors.[12]

Present Scenario

India has the greatest number of smokers in the world, preceded only by China. The generality of cigarettes smoked by those who are fifteen years old or more amounts to 35%. The pervasiveness of smokers in terms of sex among men is 48% and that among women is 20%. Nearly two in five (38%) adults in rural areas and one in four (25%) adults in urban areas use tobacco in some form.[13]

The regulatory warning of “cigarette smoking is injurious to health” is compulsorily depicted on the packaging, boxes, and promotion of cigarettes. Certain states such as Maharashtra and Karnataka have prohibited smoking in public areas. With regard to Maharashtra, particularizing of the boards’ size in English and Marathi are stipulated, rendering those premises as smoke-free.[14]

Precedents

Within the period from 1997 to 2001, numerous precedents like K Ramakrishnan and Anr. V. State of Kerala and Ors.[15] and Murli Deora v. Union of India[16] were heard for the matter of a citizen’s right to unpolluted environment and a handful of states addressing the same with smoke-free and cigarette-regulation laws, explicitly giving the Indian Government the signal to put forth an exhaustive legislation for cigarette control. The Government introduced the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (COTPA), in 2003.[17]

Social Impact

It has been indisputably established that smoking is physiologically harmful for an individual. The mortality rate caused by cigarettes has worldwide risen and continues to be on a persistent hike. Earlier, smoking was deemed as a stigma, but upon the onset of the 21st century, the sales and commercialization of cigarettes have been largely pervasive amongst both men and women. In 2016, Global Adult Tobacco Survey (GATS) stated that there was a reduction of smokers in India by 34.1%, as a result of the rising awareness and anti-smoking projects taken up by the government. Studying these alterations in trends by healthcare experts can establish a valuable instrument in designing strategies to regulate and restrict the pollution and harm caused by smoking cigarettes.[18]

Conclusion

As regulation of cigarettes is a massive health-care issue in India, the Government has executed and enforced numerous cigarette-regulation policies at the central and state level. The states have administered these policies and projects with differing degrees of success. Adequate regulation of smoking is determined by the level of calculated enforcement of demand and supply reduction plans by the Government and the cooperation involved in stakeholder departments.

It has been proven that cigarettes contain carcinogenic compounds which lead to grave harm to an individual’s health, be it smoker or passer-by. Anyone around them might develop lung cancer, mouth cancer, or throat cancer. It is unfair to subject another citizen to this level of harm for personal satisfaction or enjoyment. Businesses cannot be run at the cost of the public’s health. In any case, pubs and restaurants could adapt to a ban by, for example, allowing smoking areas.[19]

The right to smoke isn’t an explicit provision under the Constitution and it cannot be considered one under Article 21 either because the provision of personal liberty is explicitly catered for necessities such as education, health, and in fact, even a healthy environment. In conclusion, it is clear that it should be made illegal to smoke in public places. This would improve the health of thousands of people, and that is most definitely a positive development.


References:

[1] Anonymous, Ban smoking in public places, IELTS BUDDY, https://www.ieltsbuddy.com/ban-smoking-in-public-places-essay.html.

[2] Unfiltered: Conflict over tobacco policy and public health. Feldman EA, Bayer R, editors. Massachusetts: Harvard University Press; 2004. p. 394.

[3] The Constitution of India, Art 21: “Protection of life and personal liberty— No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[4] SHRI. VINEET JOSHI & DR. SADHANA PARASHAR, LEGAL STUDIES— CLASS XII 108 (Mr. Ram Shankar ed. et al, Central Board of Secondary Education) (2014).

[5] Government of India. The Cigarettes Act (Regulation of Production, Supply and Distribution) 1975.

[6] Government of India. Cabinet Secretariat O.M. 27/1/3/90 dated 7 May 1990.

[7] Government of India. The Cable Television Networks (Amendment) Act 2000.

[8] Revised Smoke free Rules. Notification in the Official Gazette GSR 417 (E) dated 30th May, 2008. 

[9] Global map of smoke-free policies; prepared for the Global Smoke-free Partnership, Gillian Griffith, April 2008

[10] Smoking Curbs: The Global Picture. Available from: http://news.bbc.co.uk/2/hi/3758707.stm

[11] List of Smoking Bans. Available from: http://en.wikipedia.org/wiki/List of smoking bans.

[12] World Health Organization (WHO). Framework Convention on Tobacco Control, 2004.

[13] Government of India. Ministry of Health & Family Welfare, Global Adult Tobacco Survey, India, 2010.

[14] Government of Maharashtra, Public Health Department, Resolution No . CNC 1036/CR 241/PH-6, Dated 5th August 1987

[15] AIR 1999 Ker 385.

[16] 2001 8 SCC 765.

[17] The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and regulation of Trade and Commerce, production, Supply and Distribution) Act, 2003; An Act enacted by the Parliament of Republic of India by notification in the Official Gazette. (Act 32 of 2003). 

[18] Sujay Shah, Socioeconomic and Cultural Impact of Tobacco in India, J FAMILY MED PRIM CARE (Nov., 2018) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6293949/.

[19] Anonymous, Ban smoking in public places, IELTS BUDDY, https://www.ieltsbuddy.com/ban-smoking-in-public-places-essay.html.


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