BAN ON PUBLIC SMOKING IN KERALA
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- Title
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BAN ON PUBLIC SMOKING
IN KERALA
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BAN ON PUBLIC SMOKING
IN KERALA
Courtesy
ALCOHOL AND DRUG INFORMATION CENTRE (ADIC) ■ INDIA
National Office : T.C. 26/2203, Spencer Junction
Thiruvananthapuram - 695 001
E-mail: adicindia@vsnl.com
Tel. & Fax : 0471 -462086
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XN THE HIGH COURT op KERALA AT ERNAKULAML^
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Prosanti
Th a Hon*ble the Ag. Chi of Justice Mr. AR Lakshraanm
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■Xhe Ron •ble Mr. justice k. Narayans Kurup
Monday, the 12th day of July. 1999/21at Ashadha, 1921
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O.P«NQ.24160 of 1998
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Petitioners l
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1. K.Radakrishnan, b/o. V.BhaBkara Menon.
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Amruthat Vydlarangadl Post*
Ranianattukata* C all cut •
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Kokkad* xj/oe Josq Antony Kokkad*
Professor. D«pt. of English. B.C.M. CDllego.
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Kottayam.
By Adv. shrl.p.Deepak
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Respondents*
1.
Keralaa rep. by Health Secretary.
X< state of Keral^a
Secretariat* Thiruvannnthapuraau
2. Director of Panchayat, Shiruvananthapurara.
3. Director General of Police. Thlxuvananthspuram.
4. CoraralESioner of Police, Ihlruvananthapuraa.
$• Conxnlssloner of Police* Rodhl*
6* Cornmlsaloner of Police, kosh*kode
KoT?h *kode^ek
7. corporation of Trlvandru , *bJLxuvananthapurara.* 411 xuvan an th apurara •
8. Corporation of Kochi, Kochi.
9. Corporation of Kozhikode, Koshlkodei
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Addl. 10. Director of Public Instructions, Ihiruvananthspurwi
Director of .CollegiatwBducatlon, UilruvananthapuraaJ
12. Director of nodical Education, 7hiruvananthapuraa/1|
13. Director of .Higher Secondary Education.
’
Thiruvananthapuram.
14. Director of Tachnlcal Education,
Thlr uvansn th apuraa *
15. Director of Vocational Higher Secondary Education* ~
Thiruvananthapuram.
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Director of Health Servicea* ThlruvananthapurMa.
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17. The Divisional Railway Manager*
_2iuthern Railway. Thiruvananthapursa.
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19. Iha DlvlBlonal Railway Manager,
southern Railway, Palakkad.A
19. The Director of Municipal Administration,
Ihlrtxvananthapuram.
20. lhe Registrar, Hi^i Court of Kerala,
sgnakulam.
21. The Registrar, Kerala University,
Thlruvananthapuram.
22. The Registrar, Mahatma Qandhl University,
Kottayam.
23. The Registrar, Cochin University of Science
and Technology, University P.o.
South Kalamaaserry, Kochi - 22.
24. The Registrar, Kerala Agri. University,
Mannuthy, Thrissur.
25. The Registrar, Callcut University, Calicut.
26. The Registrar, Kannur University, Kannur.
27. The Secretary, Greater Cochin Development
Authority, Kadavanthara, Kochi -20.
28. The Secretary, Chandaer of Commerce, Brnakulara.
29. The Secretary, Trivandrum Development Authority,
Thlruvananthep uram.
30. The Secretary, Calicut Development Authority,
Koshikoda,
31. The Secretary, Hotel and Restaurant Owners*
Association, ETnakulam.
■
..
Addl, respondente 10 to 31 impleaded suo notu as
per order dt.9.12.98 in O.P.Ho. 24160/98.'
32. Chairman, Bar council, Kerala.
33. President, Bar Association.
34. Indian ifedical Association (Brnakulam branch)
Addl. respondents 32 to 34 Impleaded as per order
dt. 18.12.98 on O.P.
35. Indian Academy of Padlatricts, Cochin branch,
rep. by secretary. Dr.Varghese cheriyan,
3/o.v.G.Cherish* residing at 33/1566,
South Janatha Road* Malarlvattorn,-smakulam.
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R26 by Adyr Shrl.Xs*MfadcriMtai®i P.J.Mathe^-_
R31 by Adv. Chrl.Joe Joseph
■Shrl K.Kuriafco^e R34 to 36 by Adv.shrl.John Varghese
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R27 by Adv. Shrl.M*V.Joseph & P*R.Ramachandra Menon•
R29 by Adv .Shri Pirappancode V.Sreedharan Nair
Oils original Petition having been finally heard on
1.3,1999, tha Court on 12.7.1999 delivered the followlngi
I
(AR. Lakshmanan, Ag.C.J. & K.
Narqyana Kurupf
O.P. No. 24160 of 199g - A
«
J U D G M E N T
Narayana Kurup, J9
1. Thia is an original petition
public health issue of the dangers of
in which prayers are made to declare
highlighting the
passive smoking and
that smoking of tobacco
in any form, whether in the form
of cigarette, cigar, beedies
or otherwise in public places is illegal,
unconstitutL’'onal
and violative of Article 21 of the
Constitution of India;
issue a writ in the
nature of mandamus or such other
writ commanding the respondents to take
appropriate and
immediate measures to prosecute and
■ punish all persons
guilty of smoking in public places •
treating the said
act as satisfying the definition
of 'public nuisance'
as defined under Section 268 of the Indian Penal Code.
We heard Mr. P. Deepak, counsel for
Advocate General for the State and
the petitioners, the
counsel for other
i
respondents.
2. In the writ petition originally
i
there were
only respondents 1 to 9 viz.
State of Kerala, Director
of Panchayat, Director General of Police,
Commissioners
i
1
2
of Police/ Thlruvananthapuram/ Kochi and Kozhikode am
Commissioners of Thiruvananthapuram/ Kochi and Ko^hiko^^
Municipal Corporations.
During the pendency of: tShe\
• .^2'
Original Petition this court suo-motu impleaded AddiV^.n
respondents 10 to 52 on whom service is complete.
3.
Before proceeding to discuss the legal
issues arising in this original petitionzwe feel that
it is useful to refer to certain facts and figures of
startling revelations which has a direct bearing on the
dangers of smoking^active and passive/ and its horrifying
impact on public health.
z
ON SMOKING GENERALLY
4. One million Indians die every year from
*
tobacco-related diseases.
■
This is more than the number
of deaths due to motor accidents/ AIDS, alcohol and
drug abuse put together/ say the Indian Medical
Association (IMA) and the Indian Academy of Paediatrics
1
(IAP)/ quoting studies.
5. Cigarette smoking is the major preventable
cause of death in America, contributing to an estimated
1. See "The Hindu* Trivandrum Edition dt.31•10.1998 under
the caption "Smoking kill 10 lakhs Indians a Year.*
t
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smoke either active or passive*
Epidemiolog
studies show an association between smoking and
cancers of the bladder. pancreas, stomach, and
uterine cervix.
6. Cigarette smoking is a niaj or independent
risk factor for coronary artery disease.
Retrospective
and prospective epidemiologic studies have demonstrated
a strong relationship between smoking and coronary
morbidity and mortality tn both men and women.
The
coronary disease death rate in smokers is 70% higher
than in nonsmokers, and the risk increases with the
amount of cigarette exposure.
The risk of sudden
death is two to four times higher in smokers.
Smoking
2
of Police, Thiruvananthapuram, Kochi and Kozhikode an
c
Commissioners of Thiruvananthapuram, Kochi and Ko^hiko^g^-V
Municipal Corporations.
During the pendency of tihfe'
J*/
Original Petition this court suo-motu impleaded
respondents 10 to 52 on whom service is complete.
3.
Before proceeding to discuss the legal
issues arising in this original petitionzwe feel that
it is useful to refer to certain facts and figures of
startling revelations which has a direct bearing on the
dangers of smoking^active and passive/ and its horrifying
impact on public health.
ON SMOKING GENERALLY
-
4. One million Indians die every year from
tobacco-related diseases.
This is more than the number
0
1
of deaths due to motor accidents/ AIDS, alcohol and
drug abuse put together, say the Indian Medical
Lt/
Association (IMA) and the Indian Academy of Paediatrics
1
(IAP)t quoting studies.
5. Cigarette smoking is the major preventable
cause of death in America, contributing to an estimated
1. See "The Hindu" Trivandrum Edition dt.31.10.1990 under
the caption "Smoking kill 10 lakhs Indians a Year."
r •
3
350000 deaths annually.
Epidemiologic and experimental
evidence has identified cigarette smoking as the primary
cause of lung cancer and chronic obstructive pulmonary
diseases (COPD) and as a major risk factor for coronary
heart disease.
Smoking has been associated with other
cancers, cerebrovascular and peripheral vascular diseases/
and peptic ulcer disease.
Smokers also suffer more
acute respiratory illness.
Cigarette smoke, consisting
of particles dispersed in a gas phase. is a complex
mixture of thousands of compounds produced by the
incomplete combustion of the tobacco leaf.
Smoke
constituents strongly implicated in causing disease
. are nicotine.and tar in the particulate phase*-ond^
carbon monoxide in the gas phase.
Smokers have a
70 per cent higher mortality rate than nonsmokers.
The
risk of dying increases with the amount and duration
of smoking and is higher in smokers who inhale.
Coronary
heart disease is the chief contributor to the excess
mortality among cigarette smokers, followed by lung
7
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cancer and chronic obstructive pulmonary disease *•
(COPD).
Life expectancy is significantly shortened
by smoking cigarettes.
Tobacco smoke also gets
dissolved in the saliva and is swallowed, exposing
the upper gastrointestinal tract to carcinogens.
A strong association between smoking and lung cancer
has been demonstrated in multiple prospective and
retrospective epidemiologic studies, and corroborated
by autopsy evidence.
cancer has been the leading
cause of cancer death in men since the 1950s, and
it surpassed breast cancer as a leading cause of
cancer death in women in 1985.
Male smokers have
a tenfold higher risk of developing lung cancer.
and the risk increases with the number of cigarettes
smoked.
There is also strong evidence that smoking
is a major cause of cancers of the larynx, oral
cavity anc/oesophagus.
The risk of these cancers
increases with the intensity of exposure to cigarette
5
smoke either active or passive*
Epidemiolog
studies show an association between smoking and
cancers of the bladder/ pancreas, stomach/ and
uterine cervix.
6. Cigarette smoking is a major independent
risk factor for coronary artery disease.
Retrospective
and prospective epidemiologic studies have demonstrated
a strong relationship between smoking and coronary
morbidity and mortality in both men and women.
The
coronary disease death rate in smokers is 70% higher
than tn nonsmokers/ and the risk increases with the
amount of cigarette exposure.
The risk of sudden
death is two to four times higher in smokers.
-Smoking
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-6«
is also a risk factor for cardiac arrest and'severe'malignant arrythmlas.
In addition to increased coronary
mortality, smokers have a higher risk of nonfatal’^
myocardial infarction or unstable angina.
Patients with
angina lower their exercise tolerance if they smoke.
’’omen who smoke and use oral contraceptives or post-menopausal
estrogen replacement greatly increase their risk of
myocardial infarction.
7. Autopsy studies demonstrate more atheromatous
changes in smokers than nonsmokers.
Carbon monoxide in
cigarette smoke decreases oxygen delivery to endothelial
tissues.
In addition, smoking may trigger acute ischemia.
Carbon monoxide decreases myocardial oxygen supply, while
nicotine increases myocardial demand, by releasing
catecholamines that raise blood pressure, heart rate,
and contractility.
Carbon monoxide and nicotine also
induce platelet aggregation that may cause occlusion of
narrowed vessels.
Cigarette smoking is the most important
risk factor for.peripheral vascular disease.
In patients wtK.
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intermittent claudication, smoking lowers exercise
tolerance and may shorten graft survival after vascular
surgery.
Smokers have more aortic atherosclerosis and
an increased risk of dying from a ruptured aortic aneurysm.
Smokers under the age of 65 have a higher risk of dying
from cerebrovascular disease and women who smoke have
a greater risk of subarachnoidhaesaorrhage, especially
if they also use oral contraceptives.
Smoking and Pulmonary Disease:
6. Cigarette smoking is the primary cause of
chronic bronchitis and emphysema.
Smokers have a higher
prevalence of respiratory symptoms than nonsmokers.
Studies of pulmonary function indicate that impairment
exists in asymptomatic as well as symptomatic smokers.
Smokers have a higher risk of acute as well as chronic
pulmonary disease.
Inhaling cigarette smoke impairs
pulmonary clearance mechanisms by paralyzing ciliary
transport.
This may explain the susceptibility to viral
respiratory infections, including influenza.
Smokers who
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develop acute respiratory infections have longer/a^nd^
more severe courses, with a more prolonged cough^
Other Health Consequences!
9. Smokers have a higher prevalence of peptic
ulcer disease and a higher case-fatality rate.
has been associated with
Smoking
increased osteoporosis in men
and post-menopausal women. . Female smokers weigh less
than nonsmokers and have an earlier age of menopause;
both of these factors are associated with osteoporosis
and may contribute to the relationship between smoking
and osteoporosis.
Moreover, smoking depresses serum
estrogen levels in post-menopausal women taking estrogen
replacement therapy.
ON
PASSIVE
SMOKING
Smoke Exposure):
Passive Smoking (Environmental
10. Nonsmokers involuntarily inhale the smbke
of nearby smokers, a phenomenon known as passive smoking.
Wives, children and friends
of smokers are a
highly
9
risk-prone group.
2
Inhalation of sidestream smoke-by
a non-smoker is def initely'more harmful to him thah^
to the actual smoker as he inhales more toxins.
This
is because sidestream smoke contains three times more
nicotine, three times more tar and about 50 times more
3
ammonia.
Passive smoking (because of smoking by their
fathers) could lead,to severe complications in babies
aged below two.
It is pointed out that in India
hospital admission rates are 28 per cent higher among
the children of smokers.
These children have acute
lower respiratory infection, decreased lung function,
4
increased eczema and asthma and increased cot deaths.
Also, children of heavy smokers tend to be shorter.
11. Passive smoking is associated with an overall
23 per cent increase in the risk of coronary heart
disease (CHD) among men and women who had never smoked.
The following data shows just how heavy is cigarette
smoking’s toll on non-smokers.
A new "meta-analysis"
2. Sidestream smoke is the smoke issued from the burning
end of a cigarette between puffs.
Hindu.
3. Ibid. The
Exposure of non-smokers to environmental tobacco
smoke (ETS) is known as passive smoking.
4. Ibid.
/
10 x r* A
Jual^
of data from 14 studies involving 6,166 indhrtdi
V:
with coronary heart disease (CHD) finds that pasilye-^jX
smoking was associated with an overall 23 per cent
increase in the risk of CHD among men and women who had
never smoked.
•It is estimated that 35,000 to 40,000
non-smokers’ deaths each year in the United States can
’
5
be attributed to passive smoking.
This underscores the
need to eliminate passive smoking as an important
strategy to reduce the societal burden of CHD>
The
United Nations health agency insisted that passive smoking
caused lung cancer and that an environmental tobacco
smoke poses a positive health hazard.
Research on the
subject has found an estimated 16 per cent increase in
the risk of developing lung cancer among nonsmoking
spouses of smokers and an estimated 17 per cent rise in
The public is left high
6
and dry over the risks of "second-hand smoke." For non-
risk for work place exposure.
smokers / the major source of carbon monoxide is from
passively inhaled cigarette smoke.
Environmental tobacco
smoke (ETS) has been shown to reduce lung function in
5. American Heart Association SMOKING-2 .HRT 19th March, 1998
Page 1.
6. Reuter - world 10th March, 1998.
*
11
children.
Its Irritant effect could not b/*’igri^^dl hs/.
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thia is the reason why most people object
V ^eing.
*> they
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victims of passive smoking.
. 7 ?
Patients with ast' na~f ind
this irritant effect will worsen symptoms.
The most
remarkable effect of environmental tobacco smoke (ETS)
is the development of lung cancer in passively exposed
non-smokers as shown by reports from Japan and Greece.
Large number of controlled* studies have confirmed a
relative risk of developing lung cancer in passively
exposed subjects.
Estimates from the United -States have
suggested that 3000 to 5000 deaths per year from lung
cancer can be attributed to passive smoking.
12.
Maternal smoking during pregnancy increases risks
to f^tus and non-smokers chronically exposed to tobacco
smoke will suffer health hazards.
Maternal smoking during
pregnancy contributes to fetal growth retardation.
Infants
born to mothers who smoke weigh an average of 200 g less
but have no shorter gestations than infants of non-smoking
mothers.
Carbon monoxide in smoke may decrease oxygen
availability to the fetus and account for the growth
retardation.
Smoking during pregnancy has also been linked
with higher rates of spontaneous abortion, fetal death,
7
and neonatal death.
7. Primary Care Medicine - Respiratory Problems; Health
Consequences of Smoking Nancy A. Rigotti, page 167.
U.
12
fc.
When smoking occurs in enclosed areas with\&ior.
ventilation, such as in buses, bars, and conference
roans, high levels of smoke exposure can occur.
Acute
exposure to smoke-contaminated air decreases exercise
capacity in healthy non-smokers and can worsen symptoms
in individuals with angina, chronic obstructive pulmonary
disease (COPD) or asthma.
Chronic exposure to smoky
air occurs in the workplace and in the homes of smokers.
Non-smokers in smoky workplaces develop small-airways
--■MW;
I
dysfunction similar to that observed in light smokers.
Compared to the children of non-smokers, children whose
parents smoke have more respiratory infections throughout
Wr
al
childhood, a higher risk of asthma. and alterations in
pulmonary function tests. In recent studies of non
■
smoking women, those married to smokers had higher lung
cancer rates than those married to non-smokers.
Chronic
smoke exposure may be associated with increased incidence
8
of cardiopulmonary disease in nonsmokers.
13. Environmental tobacco smoke (ETS) also
contributes to respiratory morbidity of children.
Increased
platelet aggregation also occurs when a nonsmoker smokes
8. Ibid. Page 167-168.
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or is passively exposed to smoke.
tobacco smoke (ETS)
Although envied
F.
differs from mainstream smoke
! CI
'
several ways,
it contains many of the same toxicX^
substances.
Infants and toddlers may be especially at
rikt when exposed to environmental tobacco smoke (ETS).
I
..'n
s
Considering the substantial morbidity, and even mortality
of acute respiratory illness in childhood, a doubling
1
in risk attributable to passive smoking clearly represents
a serious
paediatric health problem.
Exposure
to
environmental tobacco smoke (ETS) has been associated
with increased asthma-related trips to the emergency
room of
hospitals.
There is now sufficient evidence
to conclude that passive smoking is associated with
additional episodes and increased severity of asthma
in children who already have the disease. Exposure to
4
passive smoking may alter children's intelligence and
behaviour and passive smoke exposure in childhood may
10
be a risk factor for developing lung cancer as an adult.
9Main-stream smoke” is the one that is exhaled by
the smoker after inhalation.
10. Active and Passive Tobacco Exposure: A Serious
Paediatric Health Problem, Page 1.
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Environmental tobacco smoke (STS) contains more than
4000 chemicals and at least 40 known carcinogens.
Nicotine, the addictive drug contained in tobacco
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leads to acute increase^ in heart rate and blood pressure.
ETS also increases platelet aggregation, or blood
clotting.
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It also damages the endothelium, the layer
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of cells that line all blood vessels, including the
coronary arteries.
In addition, nonsmokers who have
high blood pressure or high blood cholesterol are at even
greater risk of developing heart diseases from ETS
I
11
exposure.
i
I.
An investigation in Bristol has found that
the children of smokers have high levels of cotinine,
a metabolite of nicotine, in their saliva.
The results
indicated that children who had two smoking parents
were breathing in as much nicotine as if they themselves
were smoking 80 cigarettes a year.
A study published
in the ’•New England Journal of Medicine” found that
i
F
the children of smoking mothers were less efficient
I
at breathing.
11. Ibid.
A study conducted by the Harvard Medical
Page 8.
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School
in Boston, concluded that passive exposiire to
maternal cigarette smoke .:may
have important\effects^on^^t^^
the development of pulmonary function in children^. ~An
An
w was
important discovery is that the cocktail of chemicals^
i
in a smoky room may be more lethal than the smoke inKaled
by the smoker.
The "sidestream” smoke contains three.£„
•
times as much benezo(a)pyrehe
six times as much toluene,
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(a virulent
cause of -------------cancer)
-----------------
:
another carcinogen, and more
than 50 times as much dimethylnitrosamine.
It has been
commented by Dale Sandler of the National Institute ofg
X5/ ’ •
Environmental Health Studies in the United States that;
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—7
the potential for damage from passive smoking may be
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greater than has been previously recognised<
14.
Thus.
it can be safely concluded that the
dangers of passive smoking are real, broader than once
-.:V
believed and parallel those of direct smoke.
It has
long been established that smoking harms the health of q
12
those who smoke. Now, new epidemiological studies and ■
12. Health - Evidence’ mounts on passive smoking ("The Hindu"
Sunday, August 5> 1990.
1
-16reviews are strengthening the evidence that
Vji 1 sdjlharms jd
the health of other people nearby who inhale the
toxic fumes generated by the smoker, particularly from
the burning end of the cigarette.
Such indirect, or
I
secondhand, smoking causes death not only by lung
--per?
J
cancer but even more by*heart attack, the studies show.
•S i
1
The studies on passive smoking, as it is often called,
•3 :
also strengthen the link between parental smoking and
respiratory damage in children.
According to experts,
r
»■
there was little question that passive smoking is a
major health hazard.
What has swayed many scientists
is a remarkable consistency in findings from different
types of studies in several countries with improved
•.’g
methods over those used in the first such studies a
few years ago.
The new findings confirm and advance
/ii
'J
the earlier reports from the U.S. Surgeon General, who
concluded that passive smoking causec^lung cancer.
II
According to Dr. Cedric F. Garland, an expert in the
•4
epidemiology of smoking at the University of California
-
;•
■1
•
I
/
'C
-17/r.
at San Diego "the/links between passive smoking
■t
•
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I ,\
health problems are now as solid as any finding fcSepidemiology. *
The newer understanding of the health
hazards of passive smoking were underscored
at a world conference on lung health in
in a report
Boston recently.
Dr. Stanton A. Glantz o£ the University of California
at San Fransisco estimated that passive smoke killed
50000 Americans a year, two-thirds of whom died
heart disease.
smokin
of
Passive smoking ranks behind direct
Q-ftd alcohol as the third leading
reventable
cause of death.
Dr. Donald Shopland of the U.S. National
Cancer Institute, who has helped to prepare the Surgeon
General’s reports on smoking has said: "there’s no question”
now that passive smoking is also a cause of heart disease.
The new findingg on passive smoking parallel
changes in U.S, laws and rules that limit
public places.
recent
smoking in
In recent years, all but four states
(Missouri, North Carolina, Tennessee and
Wyoming) have
passed comprehensive laws limiting smoking in public place.
-A
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1
Only a decade ago many scientists were sceptical \bout
the initial links between passive smoking and lung cancer.
IS."mainstream smoke**is inhaled and consists of
large particles deposited in the larger airways of the
..^1
lung. 'Sidestream smoke”is generated from the burning
■3 '
end of cigarettes, cigars and pipes during the smouldering
between puffs.
It may come from someone else’s tobacco or
- -a
-.R .i
from one’s own and is the major source of environmental
Sr’'
•if
tobacco smoke (ETS). It is a mixture of irritating gasses
and carcinogenic tar particles that reach deeper into the
lungs because they are small.
¥1
According to scientists,
I
because of incomplete combustion from the lower temperatures
of a smouldering cigarette, sidestream smoke is dirtier
and chemically different from mainstream smoke.
Scientists
■ > I
have found a JO per cent increase in risk of death from
!
'i
heart attacks among nonamokers living with smokers due
l
-i®’- '
to passive smoking.
Researchers have found that passive
< •
smoking makes platelets, the tiny fragments in the blood
that help it clot, stickier.
-«» r
Platelets can form clots
^4
*
-19on plquoe in fat-clogged arteries to cause heart at'tacks
r
and they may also play a role in promoting arterioscIlTrosis,
the underlying cause of most heart attacks.
Researchers
have also shown that passive smoking affects heart function,
decreasing the ability.of people with and without heart
d 18638.6 to exercise.
It has been pointed out that passive
smoking increases the demand on the heart during exercise
and reduces the heart’s capacity to speed up.
For people wit’
heart disease, the decreased function can precipitate chest
pains from angina.
The children exposed to passive smoke
since birth, had increased amounts of cholesterol and
lower levels of HDL, a protein in blood that is believed
to provide protection against heart attacks.
The
researchers found that the greater the exposure to
passive smoke, the greater were the biochemical changes.
16. A pioneering report linking passive smoking
and lung cancer came in 1981 from a 14-year Japanese
study by Dr. Takeshi Hirayama.
criticised at first.
His research methods were
Mr. Lawrence Qarfinkel, an
epidemiologist who is vice-president of the American
13.
Ibid
12.
<
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Vk
i c'
lai
f
*
Cancer Society, said that he vaa at present' sc
of Dr. Hirayama's report but was convinced from later
studies, including his own, that there was about a
JO per cent increased risk of developing lung cancer
from passive smoking.
Mr. Garfinkel said a study of
1.2 million Americans n.ow being completed should help
clarify the degree of risk from all types of cancer
and other diseases.
Dr. Glantz estimated that one-third
■
S-
.hL
T1
1
of the 50,000 deaths from passive smoking were from
cancer.
In addition to lung cancer, researchers have
linked cancer of the cervix to both mainstream and
sidestream smoke.
4
‘
31
The American Academy of Paediatrics
estimates that 9 million to 12 million American children
under the age of 5 may be exposed to passive smoke.
'll
The
newer studies strengthened earlier conclusions that
"■f
passive smoke increases the risk of serious early
'<4
<1
childhood respiratory Illness, particularly bronchitis
and pneumonia in infancy.
Increased coughing was reported
from birth to the mid-teenage years among 1J newer
>1
f‘
-111
I
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w
( .
-21-
t-'
studies of passive smoking and respiratory bj
‘Jinpt oms •
It hag also been found that passive smoke can lead to
middle ear infections and other conditions
in children.
Asthmatic children are particularly at risk
and the lung
14
problems in childhood can extend to adulthood.
17. In 1962 and 1964 the Royal College of
Physicians in London and the Surgeon General
of the
United States released landmark
reports documenting
the causal relation between smoking and lung
Thereafter, extensive research has
15
cancer.
confirmed that
smoking affects virtually every organ system.
By 1990,
the Surgeon General of the United States concluded
that
"smoking represents the most extensively documented
cause of disease ever investigated in the
biomedical research.
history of
Studies have shown increased
risk of lung cancer in non- smoking women whose husbands
smoked.
Spousal studies on passive smoking showed
positive association between smoking and lung
a
■■ JS
cancer.
It has now been shown that involuntary smoking is a
14Tlbid~i2—————
______
15. Selections from British h’edical Journal
.
Edition) Vol.
St
4
.•st •
4ft/•
/
-22cause of disease, including lung cancer, in healthy
non-emokers*
Studies in various countries have established
a positive association between passive smoking and lung
cancer.
The Environmental Protection Agency of U.S.
classified environmental tobacco smoke (ETS) as a known
human carcinogen, to which it attributed 3000 lung cancer
deaths annually in American non-smokers.
The agency also
documented causal associations between exposure to environmental tobacco smoke (ETS) and lower respiratory tract
infections such as pneumonia and bronchitis, middle ear
disease, and exacerbations of asthma in children.
A
report on environmental tobacco smoke (ETS) published in
December 1998 by the California Environmental Protection
Agency affirmed the findings of the US Environmental
rm
Protection Agency on the link between environmental tobacco
smoke (ETS) and lung cancer and respiratory Illness.
It
i
also concluded that
passive smoking is a cause of heart
i
disease mortality, acute and chronic heart disease morbidity,
retardation of fetal growth, sudden infant death syndrome (SIDS
I
/
-23-
nasal sinus cancer, and induction of
asthma in children,
Two important studies from the Wolfson
Preventive Medicine
that marriage to a
cancer by 26%.
Institute of
in London, published in igog
show
smoker increased the risk of lung
Studies have also 83t
aDltahe<1 strong
established
relation between passive s™kins and lschae„lc he.rt
disease (IED).
The systematic reviews frOm
Wolfson
^i^£^lhe_california Environmental Protection Avenoy
and the U3 Environmental Protection
Agency, and the
various reports released make it clear
that exposure to
environmental tobacco smoke (STS) is
a cause of iyg
c.fncer^Jieart^disease and other serious j]!neos.
In the
United States alone, it is
responsible each
3000 deaths from lung cancer,
year for
35,000 to 62,000 deaths from
ischaemic heart disease (IHD),
150,000 to 300 000 cases
of bronchitis or pneumonia in infanta
and children aged
18 months and younger causing 1J6 to 212
26,000 new cases of asthma.
F
k
r
deaths, 8000 to
exacerbation of asthma in
400 000 to 1 million children, 700 000 to 1.6
visits to physician offices for middle
I
r
I
million
ear infection,
U
I-
-249700 to 13600 cases of low birth weight, and 1900 to 2700
sudden Infant deaths.
Those fi/rures make passive smoking
ono of thleading preventable causes of premature death
16
in the United states.
13, public health action by policy makers to
eliminate exposure to environmental tobacco smoke (ETS)
is long overdue.
A total ban on smoking is preferred
on various grounds.
Policy makers should pursue all
strutogieA that would help accomplish that goal,
including education, legislation, regulation, litigation
and enforcement of existing laws.
13. Government of India is a party to 16 or so
resolutions adopted by the World Health Organisation
since the ^970s, particularly the one adopted in 1986
which UTgad. member-countries to formulate a comprehensive
national, ^bacco control strategy.
It was envisaged
that tfee shmtagy would contain measures (i) to ensure
effeetive protection to non-smokers from involuntary
16. Ibid 15.
e
-25exposure to tobacco smoke; (ii) to promote ab8tentlon.x^rom
the use of tobacco to protect children and young people
from becoming addicted; (iii) to ensure that a good
example is set on all health—related premises by all
health personnel; (iv) to progressively eliminate all
incentives which maintain and promote the use of tobacco;
(v) to prescribe statutory health warnings on cigarette
packets and the containers of all types of tobacco products;
(vi) to establish programmes of education and public
information on tobacco and health issues with the active
involvement of health professionals and media; (vii) to
monitor trends in smoking and other forms of tobacco use,
tobacco-related diseases and effectiveness of national
smoking control action; (viii) to promote viable economic
alternatives to tobacco production, trade and taxation;
and (ix) to establish a national focal point to stimulate,
support and coordinate all these activities.
Despite the
fact that India is a signatory to these resolutions it is
saddening to note that no significant follow-up action
-26has been taken, except banning smoking in publ^Q^lg^e
and public transport and printing a statutory warning on
cigarette packers.
Even here, the action hag been
half-hearted with the ban on smoking in public places
confined to Delhi and a few other citieg and the
statutory warning being -followed more as a ritual and
printed in such small letters that the consumer hardly
notices it.
Advertisement in the govemm ent-controlled
mass media hag been prohibited, but it continueg unabated
in the print media and private televiaion channels.
The
Government's lip-service is reflected in the absence of
any mention about the hazards of tobacco in the Health
Ministry's Annual Report.
0
Except on the occasion of the
. „
World No Tobacco Day, once a year, there has been no
sustained campaign to counter the promotional campaign of
17
tobacco and highlight the toll tobacco use takes.
3S. Every year, 1 million tobacco-related deaths
.
18
take place m India.
An estimated 65 per cent of men use
tobacco and in some parts a large proportion of women chew
17. Whither tobacco control 3.Y 3.S. Padmanabhan - ’he
Hindu dated 8-8-1998.
18. Ibid 1.
/
-27tobacco and bidiea.
About 33 per cent o Aall cancers
•r
are caused by tobacco.
About 50 per cent of all cancers
•r1
amojig men and 25 per cent among women are tobacco-related
yr
The number of cases of avoidable tobacco-related cancers of
the upper alimentary and respiratory tracts,
■7’
coronary
heart disease and chronic obstructive pulmonary disease
(COPD) haa been estimated as 2,00,000 every year.
Many
still-births, low birth infants, and pre-natal mortality
have been reported among female chewers.
21. Tobacco kills 50 per cent of its
regular
users within 40 years*
Apart from these direct health
implications of tobacco use, the hazards faced by those
engaged in the plucking and curing of tobacco leaves have
•7
been highlighted by researchers of the Ahmedabad-based
National Institute of Occupational Health.
The hands of
the workers get affected by the chemicals in tobacco
and sickness is caused when nicotine gets absorbed into the
body through the skin.
and vomiting.
The symptoms are head-ache, nausea
All these well-documented findings are
available with the State
.qnrxxtrnj but if it has not
-
-28taken any effective action it can
only be attributed
in the
to the clout which the le/thal leaf enjoys
corridors of power.
One of the pet contentions of
the protagonists of tobacco is that it makes a
significant contribution to the exchequer by way
k
I
of taxes and hence should not be disturbed.
Also
a large number of tobacco farmers will be hit if
consumption is curbed.
Both these have been
countered by WHO forcefully.
Several studies
r
have brought out that the cost of healthcare of
those affected by tobacco-related ailments, which
is met from the Government exchequer, is much
more than what the Government garners by way of
taxes.
Thus, there is a net drain on the govem-
ment resources.
Illness or the premature death of
the tobacco-users would cast a heavy economic
burden on their families, perpetuating the cycle
t
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of poverty.
As regards the possible impact of
any curb on tobacco use on tobacco farmers, studies
by the Rajahmundry-based Tobacco Research Institute
of the ICAR have brought out equally remunerative
I
alternatives to tobacco cultivation, besides
use of tobacco for purposes other than smoking
and chewing.
22. Taking note of the alarming scenario
as discussed above, the question then is, what is
the relief which this Court can grant to the
petitioners?
Can this Court direct the legislature
to enact a law banning tobacco smoking?
In our
considered opinion the answer can only he an
emphatic 'no 1 .
It is entirely fcr tho errcitive
branch of the Government to decide whether or not
to introduce any particular legislation
q'he Court
certainly cannot mandate the executive or anv me^ber^ of the
' -a
-30legislature to initiate legislation, howsoever ifecFBsary
i
or desirable the Court may consider it to be
3
If
the executive is not carrying out any duty laid upon it
by the Constitution or the law, the Court, can certainly
require the executive to carry out such duty and this
is precisely what the Court does when it entertains
Public Interest Litigation
--■zl
I
But at the same time
the Court cannot usurp the functions assigned to the
executive and the legislature under the Constitution
■
and it cannot even indirectly require the executive to
•3 1
introduce a particular legislation or the legislature
■S ■
■
to pass it or assume to itself a supervisory role over
the law making activities of the executive and
the
legislature. Thus, from the above observation of the
Supreme Court, it is clear even the Supreme Court found
that Himachal Pradesh High Court had exceeded the limits
of judicial power in ordering relief in Public Interest
19
Litigation. But then, it has to be borne in mind that
■11
4t
1!v
4
•4- b
this Court acting as the sentinel on the qui vive can
19. State of Himachal Pradesh v. A Parent of a Student of
Hedical Collere. Shimla (AIR 1985 SC 910).
Il
/
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certainly interfere and grant relief by way^
maficlamus
I
to the Government and its officials including police to
enforce the existing laws which is quite sufficient to
safeguard the interests of the public against the wisp
.1
of environmental tobacco smoke (ETS).
'i
When laws are there
to deal with nuisance the law has to be enforced by the
law enforcing agency of the State.
The question of
discretion of the police in the matter of prosecution of
i
offenders was considered by Lord Denning, saying: ’’For
instance, it is for the Commissioner of Police of the
metropolis, or the chief constable, as the case may be,
to decide in any particular case whether inquiries should
be pursued, or whether an arrest should be made, or a
prosecution brought.
.V
/4
It must be for him to decide on
the disposition of his force and the concentration of
his resources on any particular crime or area.
No court
can or should give him direction on such a matter.
He
can also make policy decisions and give effect to them,
as, for instance, was often done when prosecutions were
■I
not brought for attempted suicide.
qut there are some
policy decisions with which, I think, the courts in a
05984
I
/
-32-
case can, if necessary, interfere.
Suppose a cl/ief cnrrstabJe
were to issue a directive to his men that no person should i
be prosecuted for stealing any-goods less than 10C^spound^v*
in value I should have thought that the court could countermand
20
it. He would be failing in his duty to enforce the law.
The discretion possessed by the police in enforcing the
law was considered by the Court of Appeal in a case in
which the applicant complained, merely as a citizen, that
the police had adopted a-policy of not prosecuting London
21
gaming clubs for illegal forms of gaming. The Commissioner’s
i
confidential Instructions, when revealed to the court,
substantially bore out the complaint, being based on
the uncertainty of the law and the expense and manpower
required to keep the clubs under observation.
But while
the case was pending the law was clarified, fresh
instructions were issued, and the Commissioner undertook
to withdraw the former instructions.
found no occasion to intervene.
The court therefore
But they made it clear
that the Commissioner was not an entirely free agent
as his counsel contended.
He had a legal duty to the
20. R. v. Metropolitan Police Commissioner ex p. Blackburn
((1968) 2 Q.B. 118 at 135- See also R. v. Devon and
Cornwall Chief Constable ex p. C.E.G.B. ((1981) J
W.L.R. 967).
21< R. v. Metropolitan Police Commissioner ex p. Blackburn
((1968) 2 Q.3. 118. See also Adams v. Metropolitan
Police Commissioner ((1980 R.T.R. 289).
?
r
r
I
r
r
public to enforce the law and' the cour
by mandamus
for example, he made it a rule not to
prosecute housebreakers.
On the other hand the court would
not question his discretion when reasonably exercised,
eg. in not prosecuting offenders who for some special
reason were not blamewopthy in the way contemplated by
the Act creating the offence.
The court criticised the
police policy of suspending observation of gaming clubs,
as being clearly contrary to Parliament’s intentions; and
i
had it not been changed, they would have been disposed
to intervene.
In 1972 the same public-spirited citizen
brought similar proceedings, asking the court to order
the police to take more effective action to enforce
the law against the publication and sale of pornography.
The Metropolitan Police were
.' I
:!l
:‘4
given instructions not to
institute prosecutions or apply for destruction orders
without the approval of the Director of Public Prosecutions;
and it was shown that much pornographic literature was
flagrantly offered for sale without interference by the
police.
11
1
■v
*
[
i
The Court of Appeal found that the efforts of the
• >
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I
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V’-
-34-
police had been largely ineffective, but that the real
cause of the trouble was the feebleness of the Obscene
Publications Act 1959.
Accordingly it could not be said
that the police were failing in their duty, and an order
22
of mandamus was refused. It was again made clear that
if the police were carrying out their duty to enforce the
law,
the court would not interfere
with their discretion;
but that the court would do so in the extreme case where
it was
Exactly,
shown that they were neglecting their duty.
that is the factual situation here.
23. The existing law
on the subject is embodied
■p 2
in Sections 268
and 278 IPC,
\
Rule 227(1)(d) and 227(5)
of the Kerala Motor Vehicles Rules 1989 besides the
public nuisance.
relevant provisions of Cr.P.C. Section 268 IPC define?/
Section 268:-
"Public nuisance — 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 to the
22.
R. v. Metropolitan Police Commissioner ex p. Blackburn
No.3, (1973) 1 Q.0.241).
22.(a):- 227. Passengers in public service vehicles:- Rules
to be observed by (1) When a public service vehicle is
carrying passengers or waiting- to pick
up Passengers,
a passenger <or intending
'’
passenger shall not x-c
(d) smoke inside the vehicle and also when the vehicle
is being re-fueled.
xxx
xxx
(5) Any passenger contravening the provisions of
these rules imay be removed from the vehicle by the
on“ reqUe3t of the driver or
driver or conductor or, r
conductor, by any police officer.
-35people in general who dwell or occupy
property in the vicinity, oi/vhich 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."
Therman be no doubt that smoking in a public place will
vitiate the atmosphere so as to make it noxious to the
health of persons who happened to be there.
Therefore,
smoking in a public place is an offence punishable under
Section 278 ipc.
The punishment for the offence is
fine which may extend to Rs. 500/- as prescribed under
Section 278 ipc •
Section 278:
"Making atmosphere noxious to health.—
Whoever voluntarily vitiates the atmosphere
in any place so as to make it noxious to the
health of persons in general dwelling or
carrying on business in the neighbourhood
or passing along a public way, shall be
punished with fine which may extend to five
hundred rupees."
In schedule I of Cr.P.C offence under Section 278 TIC
is a non-copnizable offence.
Since the offence alle/'ed
b.
*
-36- ’
ia non-cognizable the police has no authority to arrest
the offender without an order froni a Magistrate or withoui
a warrant.
But, since the complaint includes the report
of a police officer in a non-cognizable case, the
police can file a complaint before the Magistrate against
the offender for the said offence.
Since the offence
is punishable with fine upto Rs.500/- onlyf the case comes
within the definition of a ’petty case* as per Section
206(2) Cr.P.C.
However, it is not necessary that the
offence complained of is cognizable to enable the
police to file a complaint.
A reading of Section 15*5(2)
Cr.P.C shows that the police can file a complaint to
the Magistrate in a non-cognizable case.
When the
complaint is made by a public servant in discharge of
his official duty the Magistrate need not follow the
procedure under Sections 200 and 202 Cr.P.C. in which
case the Magistrate can straight away issue process to
the accused.
That apart, if any person who commits the
offence refuses to give his name and address, a police
i'
c
> s.'*.
.V
‘,0
4■j
z
-37officer can arrest him for the purpose of ascertaining
his address.
Since smoking is a public nuisance, it
a
can be more effectively abated by invoking Section
135 Cr.r.C.
Section 133 Sr.F.C:
”Conditional order for removal of nuisance—
(1) Whenever a District Magistrate or a
Sub-divisional Magistrate or any other 3xecutive'2J
-r- MS
Magistrate specially empowered in this behalf
by the State Government, on receiving the
report of a police officer or oxher information
and on taking such evidence (if any) as he
thinks fit, considers—
(a) tcfi't any unxawful. obstruction or nuisance
tp ould be removed from any public place
or from any way, river or channel which
is or may be lawiully used by the public;
(b) that the conduct of any trade or occupation^
or the keeping of any goods or mercHmdise^
is injurious to the health or physical
comfort of the community, and that in
'^1
consequence such trade or occupation .-houldg
be prohibited or rerulated or such ’-nn.in
oodn tO
or merchandise should be removed or the
keeping thereof regulated: or
(c) that the construction of any buildin.”, or,
the disposal of any .ubstnnce, as is likely^
to occasion confIs^rntinn ->r exrlo:»i.'n,
should be prevented or stonced: or
r
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<7
-58- .
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Il
(d) that any building, tent or structureor «
any tree is in such a condition that it is
likely to fall and thereby cause injury to
persons living or carrying on business in
the neighbourhood or passing by, and that
in consequence the removal, repair or
support of such building, tent or structure,
or the removal or support of such tree, is
ii i
\ necessary; or
(e) that any tank, well or excavation adjacent
to any such way or public place should be
fenced in such manner as to prevent danger
1i
1
3
•
4
J
.
rl
I
arising to the public, or
(f) that any dangerous animal should be destroyed,
confined or otherwise disposed of.
*4
such Magistrate may make a conditional order requiring
carrying J
the person causing such obstruction or nuisance, or
on such trade or occupation, or keeping any such goods
I
•
■'W
or merchandise, or owning, possessing or controlling such
building, tent, structure, substance, tank, well or
excavation, or owning or possessing such animal or tree,
*
within a time to be fixed in the order----
[
(i) to remove such obstruction or nuisance; or
(ii)to desist from carrying on, or to remove or
regulate in such manner as may be directed,
such trade or occupation, or to remove such
«oods or merchandise, or to retaliate the
keeping thereof in such manner as may be
iirecced: or
i
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-39- •
(iii) to prevent or stop the construction of such
building, or to alter the disposal of such
substance; or
(iv) to remove, repair, or support such building,
tent or structure, or to removQbr support
such trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such
dangerous animal in the manner provided
in the said order;
or, if he objects so to do, to appear before himself or
some other Executive Magistrate subordinate to him at a
time and place to be fixed by the order, and show cause,
in the manner hereinafter provided, why the order should
not be made absolute.
(2) Mo order duly made by a Magistrate under
this section shall be called in question in any
Civil Court.
Explanation.—A ’’public place” includes also
property belonging to the State, camping grounds
and grounds left unoccupied for sanitary or
recreative purposes.”
If such an order is passed by the Executive Magistrate
any person
disobeys the order is ~uilty of the offence
r
1
-40punishable under Section 188 IPO•
Section 188:
J
M
"Disobedience to order duly promulgated J
by public servant.—Whoever, knowing that
by an order promulgated by a public servan^^^^
lawfully expowered to promulgate such ordeF^^fe/j
he is directed to abstain from a certain
•
act. or to take certain order with certain
property in his possession or under his
management, disobeys such direction, shall,
if such disobedience causes or tends to causg^j:obstruction, annoyance or injury, or risk
of obstruction, annoyance or injury, to anyWS^.:
persons lawfully employed, be punished
simple imprisonment nor a term w^ich may
extend to one month or writh fine which may
extend to two hundred rupees, or with both;-^®
and if such disobedience causes or tends^tjx
cause danger to human life, health or safet^®
or causes or tends to cause a riot or affray^
shall be punished with imprisonment of either^!
description for a term which may extend to sW
months, or with fine which may Extend to one^g
thousand rupees, or with both.”
I
Explanation.—7t is not necessary t^at jS!
offender should intend to produce harm, or -Sli
IBp ’
contemplate his disobedience as likely to
, !
uroduce harmQ It is sufficient that he know^
of the order which he disobeys, and that hisW
disobedience produces, or i5 likely to produc||
harm.”
s■
•
't /
•< :
-41-
Offence under Section 188 IPO is co^rnizable as per
first schedule of Cr.P.C.
Therefore, after the promu1-
gation of an order unddr Section 133(a) Cr.P.O., if
any person is found smoking in a public place, the
police can arrest him without a warrant.
^he only
condition is that the order is duly promulgated by the
Executive Magistrates.
The executive ?•: agist rates have
a duty to promulgate such an order.
23
^4. In Ratlam Municipality v. Vardhichand, Krishna
Iyer, J. speaking for the Bench ruled that the imperative tone
of Section 133 Cr.P.0.read^with the punitive temper of
Section 188 IPQ make the prohibitory act a mandatory duty, if
a cczrlnint is filed under Section 188
r there is an
embargo for she Magistrate co take cognizance under
Section 195(1) Cr.P.O as cognizance can be taken for the
offence on the complaint in writing of the public
s e rvant concerned or of seme other nublic servant to
whom he is administrative!
evbor iina
.
This embargo
23. A.[.A- I960 S.c. 1622.
I
•rb*.
!
___ h
1
!
3
-42- ■’
will disappear if there is a complaint in writing by the
public servant concerned.
When there existed a public
nuisance this Court couId require the executive under
Section 135 Cr.P.C.to abate the nuisance by taking
affirmative action on «a timebound basis.
Otherwise,
it will pave the way for a profligate statutory body
or pachydermic governmental agency to defy the law by
wilful inaction.
Section 133 Cr.P.C< is categoric
although reads discretionary.
Judicial discretion when
facts por its exercise are present, has a mandatory
import.
Therefore, when the Magistrate has, before him
all the information and evidence, which disclose the
existence of a public nuisance and. on the materials
placed, he considers that such nuisance should be
removed from any public place which may be lawfully used
by the public, he shall act.
Thus, his judicial power
shall, passing through the procedural barrel, fire upon
the obstruction or nuisance, triggered by the jurisdictional
facts.
The responsibility of the Magistrate under
Section 133 Cr.P.C.
is to order removal of such nuisance
i
1
X >
=
j£>-
; # *
-45-
fixed in the order.
within a_ time to be
This is-rrTrnblic
to be exercised on behalf
the
public
power
duty implicit in
to a public proceeding.
of the public and pursuant
the direction will be visited with
Failure to comply with
contemplated by Section 183 IPS. The new
a punishment
imparted by the Constitution
oocia.1 justice orlentat ion
155 Cr.P.C. a remedial weapon
makes
Section
of India
of verstaile us°«
Social justice is due to the people
and, therefore, the people ir.u5t_be able to trigger off
fo^ t^eir benefit in any public
the jurisdiction^ted fo^ their----- -----------------------
functionary
like a raristrate under Section U? Cr-jC.-
in the exercise
of such power, the judiciary must be
-;u^rr-ed by the broader principle of access to justice
thG conditions of developing countries and
necessita^ed by
Obligated by the mandate
contained in Article 21, Article
3S and Article 51(3) of rhe Constitution of India.
Article
.
-s-u^on of ’ndia provides that no person
1 of the Consui-u^on ox -
shall be laprlved of hi. life
litert7 ’XC”t
established by law. The word
accord ing to oroc ed’ure
is very -’imificanr as it covers
’life* in this .-.rticle
24. Ibid 23. Page
J623.
-44-
The word ’life1 has not
every facet of human existence.
nor
been defined in the Constitution but it does not mean
can it be
restricted only to the vegetative or animal life
or mere existence from conception
to death.
Life does
not merely connote a continued drugery through life.
The
expression ’life* has a much wider meaning bringing
within its sweep some of the finer graces of human civi-
25
lisation which makes life worth living.
Life includes
all such amenities and facilities which a person bom
in a free country is entitled to enjoy with dignity,
legally and constitutionally.
The amplitude of the word
’life1 is so wide that the danger and encroachment
complained of would impinge upon the fundamental rights
of citizens as in the present c
interpreted Article
The apex •murt hns
giving wt^e meaning to ■lirnt
adequate nutrition,
whic^ includes the quality of lifp.
clothing and shelter and cannot be restricted merely to
physical existence.
The word ’life1 in the Constitution
has not been used in a limited manner.
A wide meaning
25. Toard of Trustees of the Port of Bombay v. T.R.
'Tadkarri (AIR 1 c8'2' ^.C. 1O9K
- T
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r v
x r
I
-4^-
to enable ^mah
should be /ziven
^
to the expression 'life'
not only to sustain
it in a full measure.
life but to enjoy
he sweep of ri^ht to
life conferred by Article 2 1 of_
far-reaching 30 a3 to bring
the Constitution is wide and
air and the
right to pollution
the
within its scope
26^
Constitutional
to decent environment/’ Under our
”right
set up "the dignity of n^an
and subject to law the privacy
The Constitution through
inviodable•
shall
be
of home
in part HI and Part iv_guarantees_the
various Articles
d ignity of the
individual
and also ri -ht to life which
of
will result in negation
to
trample
upon
if permitted
of human personality-
these rights
25. For the nurpo^e
suffice it to say^
of the present controversy,
that a person
is entitled to protection
smoking.
of -!2W from being exposed to hazards of passive
"nder the common
law a person whose
ri.-ht of ea’semer. u,
•.‘.aversely aszec^ed oy -n3 act
health
is
property or
omission of a
or
third person in the nei$hbournooc
&
•and a iso
entitled -o seek an mjure_cn
far off
claim d^ages,
ccnst^i^l
KhinYAlod- Totc\n?e
’hnnristar Builders v. Warstyar.
26. M/s. 1930 SC 630 p. 9)
AIR
-46higher pedestal than the legal rights conferred by law
J
I
5
be it the municipal law or the common law.
Such a
danger as depicted in the earlier paragraphs of this
judgment is bound to affect lakhs of people who may
suffer from it unknowingly because of lack of awareness,
information and education and also because such sufferance
is silent and fatal and most
of the people who are
exposed to the leathal smoke do not know that they are
in fact facing any risk or are likely to suffer by such
risk.
Because of lapses on the part of the authorities
concerned in creating awareness of the dangers of nassive
smoking innocent people are unwittingly made to inhale
noxious environmental tobacco smoke (r.TS) and consequently
became victims of various deadly diseases.
It is
therefore time that the authorities should wake up
before the matter slips out of their hands since health
of large number of people is at stake.
Maintenance of
health and environment falls within the rurview of Article
21 of the Constitution is it adversely affects the life
''
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^7,
-47-
of the citizens by slow' and insidious poisoning thereby
reducing the very life span itself.
Exposing unsuspecting
individuals to environmental tobacco smoke (ETS) with
ominous consequences amounts to taking away their life,
not by execution of death sentence but by a slow and
gradual process by robbing him of all his qualities and
graces, a process which is much more cruel than sending
a man to gallows.
To convert human existence into
animal existence no doubt amounts to taking away human
life, because a man lives not by his physical existence
27
mokers
or by bread alone but by his human existence.
dig not only their own graves premnturily but also pose
a serious threat to the lives of lakhs of innocent
nonsmokers who get themselves exrosed to ETS thereby
violating their right to life guaranteed under
Article 21 of the Constitution of India.
A healthy
body is the very foundation for all human activities.
In a welfare State it is the obligation of the State
to ensure the creation and the sustaining of conditions
congenial to ’ood health.
Sanknr Banerjee v. Turganur Projeers Led.
Calcutta 1~6).
1 0GB
c
1 >-
* k /
-4826.
In the result, we declare and hold as follows:
28
i) Public smoking of tobacco in any form whether
in the form of cigarettes, cigars, beedies or
otherwise is illegal, unconstitutional and
violative of Article 21 of the Constitution of
India. We direct the District Collectors of all
the Districts of the State of Kerala who are suo-motu
impleaded as Additional respondents 39 to 52 to
promulgate an order under Section 133(a) Cr.P.C.
prohibiting public smoking within one month from
today and direct the 3rd respondent Director
General of Police, Thiruvananthapuram, to issue
instructions to his subordinates to take
appropriate and immediate measures to prosecute
all persons found smoking in public places
treating the said act as satisfying the
definition of public nuisance as defined
under Section 268 IPC in the manner indicated
in this Judgement by filing a complaint before
the competent Magistrate and direct all other
respondents to take appropriate action by wayj
of display of 'Smoking Prohibited' boards etc.
in their respective offices or campuses.
28
Public place
will include Educational Institutions,
Hospitals, Shops, Restaurants, Commercial Establishments,
Bars Factories, Cinema Theatres, Barks, Walk-ways,
Stadiums, placeses of amusement,
Bus stops, Bus Stations,
Railway Stations, Railway Compartments, Buses and other
Public Transport Vehicles, Highways or any other placed
where people congregate.
1
-49• x
ii) There will be a further direction to Addl.
Ay
I
-1
respondents 39 to 52 to issue appropriate‘die ections
to the respective R.T.Os to strictly enforce
the provisions contained in Rule 227(1 )(d) and
227(5) of the Kerala Motor Vehicles Rules, 1989.
iii) Tobacco smoking in public places falls within the
a
.7’
'■'■i
mischief of the penal provisions relating to " public;
"5
nuisance" as contained^ in ^the Indian Penal Code and -1
also the definition/°pol'lutlonc‘ as contained in the
statutes dealing with the protection and preser
vation of the environment, in particular the Air
(Prevention *hd Control of Pollution) Act, 1981.
iv)
The respondents, repositories of wide statutorypowers and enjoined by the statute and Rules to
enforce the penal provisions therein are duty bound
to require that the invidious practice of smoking
in public places, a positive nuisance, is discouraged
and offenders visited with prosecution and penalty
as mandated by law.
Accordingly, the respondents
are liable to be compelled by positive directions
from this Cdurt to act and take measures to abate
the nuisance of public smoking in accordance with
law. Directions in the above lines are hereby issued
v) The continued omission and inaction on the part
:
of the respondents to comply with the constitutional ;
mandate to protect life and to recognise the
inviolability of dignity of man and their refusal
to countenance the baneful consequences of smoking
on the public at large has resulted in extreme
hardship and injury to the citizens and amounts to
a negation of their constitutional guarantee of
decent living as provided under Article 21 of the
Constitution of India.
26(a).Media, print and electronic will take note of
this Judgment and caution the public about penal consequences
of violation of the ban on oublic SOZXtKXx smoking.
■-■
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r- )•!
-50-
27. The petitioners are
for
free to move this Court
further directions as and when
deemed necessary.
The
allpwed as above.
Orifinai petition r\is
^4
flq-
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[<. ajcvycM
)<iVYV^ z
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• ‘C:
Order on C.M.p.Ho. 42521/93 in O.P.No. 24140/93
DlaralBned
12.7.1999
Sd/-AR Lakshraanan, Ag.Chief Justice
8d/~ r. Nurayana Kurup. Judge
Petitioners* Extsi
Ext.Pl
Ext.?2
True copy of the Pamphlet issued at the instance
of the W.H.O. detailing the degenerative effects
of the tobacco on young people.
True copy of the paraphlot onuraaratlng the alarming
atatlstio in relation to the tobacco eituatioa.
Respondents* Extsi
Ext.Rl(a) True copy of Govt. Circular No.71463/M3/aa/aAD
dt.ia.5.89.
Ext.Rl(b) True copy of au),(Ma) Mo.234/95/Vf&FWD dt.2.6.95.
Ext.Rl(o) True copy of Govt. Circular No.44942/h3/97/oad
dt.15.5.97.
EXt.Rl(d) True copy of Govt. Circular No.34560/m3/93/Gad
dt.11.6.99.
Kxt.Rl(o) True Copy of Govt,circular No.5759S/G3/4i&FWD
dt. 23.10.93.
EXt.Rl(f) True copy of G.O.(p)ho.289/95/qad dt.11.7.95.
Bxt.R21(a) True copy of the order Ko.Ad^kv. 1.1770/93
dt.15.7.95 issued by the University.
Ext.R34(a) True copy of country report presented at the
Regional Consultation on Tobacco and Alcohol
Sri Lanka 17-21 November, 1997^
Ext.R34(b) True copy of Tobacco Control Laws sad Regulation#
presented ht the Regional Consultation on Tobacco
and Alcohol.ari Lanka 17-21 novetriber. 1997.
Ext.R34(o) Truo copy of a part of a report of Regional
Consultation held in October 1998.
05984
0^\
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I
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' • 1
//
■
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Ext.R34(d) True copy of the article 'Passive sraoklngi
History repeats itself* reported in Selections
from Bt-5J V&l. 13 January, 1999.
Kxt.R34(e) True copy of the article 'Tobacco marketing i
ehackling tha pled piper’ reported in Selections
from BIW Vol. 13 November, 1997.Ext.R34(f) True copy of the article 'The challenges for
Beijlngi the 10th JCorld Conference on tobacco
or health' deported In flelectlons from B«J
Vol. 13 Hovtitdaer, 1997.
ESt,R34(g) True copy of the article 'Cigarettes and
addiction' reported in Selections from B!AJ VO1J.1
July, 1995. .
E?;tt.R34(h) True copy of the article 'Slowing the march of the
raalboro man' reported in Selections from SKT
Vol. 10 Decemoer, 1994.
/True copy/
- Media
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