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Prohibition Of Smoking In A Public Place In India

1. The English word tobacco originates from the Spanish and Portuguese word tabaco. Tobacco is the common name of several plants in the Nicotiana genus and the Solanaceae (nightshade) family, and the general term for any product prepared from the cured leaves of the tobacco plant.

Tobacco was first discovered by the native people of Mesoamerica and South America and later introduced to Europe and the rest of the world. Dried tobacco leaves are mainly used for smoking in cigarettes and cigars, as well as pipes and shishas . Smoking has been practiced in one form or another since ancient times. Tobacco and various hallucinogenic drugs were smoked all over the Americas as early as 5000 BC in shamanistic rituals and originated in the Peruvian and Ecuadorian Andes.

Smoking in India has been known since at least 2000 BC when cannabis was smoked and is first mentioned in the Atharvaveda (compiled c. 1200 BC – c. 1000 BC). Fumigation (dhupa) and fire offerings (homa) are prescribed in the Ayurveda for medical purposes and have been practiced for at least 3,000 years while smoking, dhumrapana (literally drinking smoke), has been practiced for at least 2,000 years.

Tobacco, in its modern shape and use, was introduced to India in the 17th century during rapid extension of British colonization. It later merged with existing practices of smoking through cigarettes or beedi etc. A research study (2019) has claimed that the tobacco sector is one of the highest contributors to the Indian economy with a total economic value generation of Rs 11,79,498 crore and around 4.57 crore people in India depend on the tobacco sector for their livelihood which comprises 60 lakh farmers, two crore farm labourers, 40 lakh leaf pluckers, 85 lakh persons working in processing, manufacturing and exports and 72 lakh working in retailing and trading.

This data seems to be bigger, however, another research study said that India's tobacco industry accounts for only about 1 per cent of industrial Gross Domestic Product (GDP), thus, it appears that tobacco's share of industrial GDP and contribution to India's foreign exchange reserves is not so much significant. Tobacco use is a cause or risk factor for many diseases; especially those affecting the heart, liver, and lungs, as well as many cancers.

In 2008, the World Health Organization named tobacco use as the world's single greatest preventable cause of death. Smoking in public places was prohibited nationwide from 2 October 2008.

There are approximately 120 million smokers in India. According to the World Health Organization (WHO), India is home to 12% of the world's smokers. More than 1 million people die every year due to tobacco related illnesses. As of 2015, the number of men smoking tobacco in India rose to 108 million, an increase of 36%, between 1998 and 2015. Therefore, the use of tobacco is proving to be dangerous to the healthy life of mankind since the smoking not only affects the person who smokes, but it also affects the persons who come into contact of that smoke.

2. The Supreme Court in Murli S Deora vs. Union of India and Ors. (W.P.(C) No. 316/99), recognized the harmful effects of smoking in public and also the effect on passive smokers, and in the absence of statutory provisions at that time, prohibited smoking in public places such as auditoriums, hospital buildings, health institutions, educational institutions, libraries, court buildings, public offices, public conveyances, including the railways.

3. A Resolution was passed by the 39th World Health Assembly (WHO), to urge the member States of WHO to ensure that effective protection is 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; and again the WHO in its 43rd World Health Assembly reiterated 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.

The Parliament of India passed an act namely Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 [34 of 2003 {May 18, 2003}] 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.

Section 3 (n) of the act defines the smoking as: smoking

means smoking of tobacco in any form whether in the form of cigarette, cigar, beedis or otherwise with the aid of a pipe, wrapper or any other instruments; Section 4 of above Act prohibits smoking in a public place stipulating 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”. Section 21 of the act provides punishment for smoking in certain places stating that:- “(1) Whoever contravenes the provisions of Section 4 shall be punishable with fine which may extend to two hundred rupees. (2) An offence under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973 (2 of 1974).”

4. According to Section 3(l) of the ‘Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, public place means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centres, restaurants, public offices, court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space”.

The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 have been framed by the Central Government for effective implementation of the above referred act. Rule 2 (c) of above rules provides that “open space” mentioned in section 3(1) of the Act shall not include any place visited by the public such as open auditorium, stadium, railway station, bus stop and such other places”.

Rule 3 of above rules further provides that:

  1. The owner or the manager or in charge of the affairs of a public place shall cause to be displayed prominently a board, of a minimum size of sixty centimetre by thirty centimetre in the Indian language(s) as applicable, at least one at the entrance of the public place and one at conspicuous place(s) inside, containing the warning No Smoking Area-Smoking Here is an Offence.
     
  2. The owner or the manager or in charge of the affairs of a hotel having thirty rooms or restaurant having seating capacity of thirty persons or more and the manager of the airport shall ensure that:
  1. the smoking and non-smoking areas are physically segregated;
  2. the smoking area shall be located in such manner that the public is not required to pass through it in order to reach the non-smoking area; and
  3. each area shall contain boards indicating thereon Smoking Area/Non-Smoking Area.

Section 12 of the Act elaborates the powers of entry and search which includes:

  1. Any police officer, not below the rank of a sub-inspector or any officer of State Food or Drug Administration or any other officer, holding the equivalent rank being not below the rank of SubInspector of Police, authorised by the Central Government or by the State Government may, if he has any reason to suspect that any provision of this Act has been, or is being, contravened, enter and search in the manner prescribed, at any reasonable time, any factory, building, business premises or any other place,
    (a) where any trade or commerce in cigarettes or any other tobacco products is carried on or cigarettes or any other tobacco products are produced, supplied or distributed; or
    (b) where any advertisement of the cigarettes or any other tobacco products has been or is being made.
     
  2. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to every search and seizure made under this Act.
     
5. In a case titled as, Restaurant and Lounge Vyapari Association and Others Versus State of Madhya Pradesh and Others (W.P. No. 15487 of 2014), the Hon'ble Supreme Court observed that Rule 3 would only apply where there is a total prohibition of smoking in all public places as is clear from Rule 3(1)(a) which makes it is incumbent on the owner, proprietor, etc. of a public place to ensure that no person smokes in that place. It is in that context that ashtrays, matches, lighters and other things designed to facilitate smoking are not to be provided in public places where smoking is prohibited altogether.

On the other hand, where smoking is allowed in a smoking area or space, sub-rule (3) of Rule 4 makes it clear that such place can be used for the purpose of smoking. Under Rule 2(f) words and expressions not defined in these Rules but defined in the Act shall have the meanings, respectively, assigned to them in the Act. This takes us to the definition of smoking contained in Section 3(n) of the Act which has been set out hereinabove. A perusal of this definition shows that it includes smoking of tobacco in any form with the aid of a pipe, wrapper, or any other instrument, which would obviously include a Hookah.

That being the case, smoking with a Hookah would be permissible under Rule 4(3) and the expression no other service shall be allowed obviously refers to services other than the providing of a Hookah. It is, thus, evident that the added words in clause (C) of Condition No. 35 are clearly ultra vires the Act and the Rules. Looked at from another angle, Rule 3(1) (c) and Rule 4(3) have to be harmoniously construed. If the respondents'' contention has to be accepted, Rule 4(3) would be rendered nugatory. What is expressly allowed by Rule 4(3) cannot be said to be taken away by Rule 3(1) (c).”

6. As per the data available with National Crime Bureau, in the year 2018 a total 35,196 offences have been reported violating the Environmental Law and out of this a total of 23,517 offences were under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, thus comprising of about 66.81% of offences against environmental law, and we include the previous year's pending case to the tune of 4,765 then total number of such offences would become as 28,282 and accordingly percentage would also increase. This data reflects an alarming position of use of tobacco products and it also shows that the law also doing its work efficiently.

7. Article 51-A (g) of the Constitution of India casts an important fundamental duty upon the citizens to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; and smoking in public places endangers the natural environment, thus, all citizens must prohibit the acts of smoking in public place at their own, not due to aforesaid legislative provisions but also to contribute in building a healthy society at large.

It can be summarized that smoking by way of cigarette, cigar, beedis or otherwise with the aid of a pipe, wrapper or any other instruments (including hukkah) in a public place (including any place to which the public have access, whether as of right or not, and also includes cinema halls, shopping malls, work place, auditorium, hospital, railway waiting rooms, amusement centres, restaurants, public offices, court buildings, educational institutions, libraries, public conveyances etc.) is an offence under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and it becomes imperative for a citizen not to smoke in public places for the sake of protection of the environment on one hand and making a good example of member of the society in another hand.

Written By: Kapil Kishor Kaushik, Advocate

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