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Analyzing the Price The Non-Smokers Are Paying For the Actions Of The Smokers in Public Places

It is axiomatic that tobacco smoking is hazardous to health. According to the World Health Organization, tobacco consumption is one of the leading causes of death, illness and impoverishment in the world and their statistics reveal that every year there are over 8 million deaths caused due to smoking. Out of these 8 million deaths, around 1.2 million deaths are attributed to passive smoking, i.e., deaths caused due to the exposure of non-smokers to second-hand smoke.

All forms of tobacco are harmful, and there is no safe level of exposure to tobacco. Cigarette smoking is the most common form of tobacco use worldwide. Other tobacco products include waterpipe tobacco, various smokeless tobacco products, cigars, cigarillos, roll-your-own tobacco, pipe tobacco, bidis and kreteks.

Over 80% of the 1.3 billion tobacco users worldwide live in low- and middle-income countries, where the burden of tobacco-related illness and death is heaviest. Tobacco use contributes to poverty by diverting household spending from basic needs such as food and shelter to tobacco.

The economic costs of tobacco use are substantial and include significant health care costs for treating the diseases caused by tobacco use as well as the lost human capital that results from tobacco-attributable morbidity and mortality.

The prima facie observation that can be drawn from the aforesaid statistics is that the innocent bystanders, i.e., the non-smokers are paying the price for the actions of the smokers. Study has shown that passive smokers would typically have continine levels of about one percent of those found in active smokers. However, the greater the levels of exposure of non-smokers to environmental tobacco smoke, the higher the concentration of continine in their body.

For example, a non-smoking wife who is exposed to protracted periods of environmental tobacco smoke from her smoking husband at home is said to run approximately 34% greater risk of lung cancer than a non-smoking wife, whose husband does not smoke at home. More troublingly, an average non-smoking person at work who is constantly exposed to multiple cigarette smokers would receive close to four times the dose of environmental tobacco smoke than the non-smoking spouse would receive at home.

Thus, exposure to environmental tobacco smoke would inevitably lead to a slow but gradual build-up of nicotine and continine in the bloodstream of non-smokers. Given that passive smoking is characterized as involuntary smoking, it is literally nothing short of assault on nonsmokers, and a fatal one at that, in light of the well-documented health hazards posed to non-smokers by high levels of nicotine and continine in their bloodstream.

This raises the question that when Article 21 of the Constitution of India provides that no one should be deprived of living a healthy life, then why should a non-smoker be subject to the various diseases associated with tobacco consumption just because they are present in a public place?

Smokers' interest in self-determination is at odds with the state's obligation to protect the life of every individual and provide them with a healthy life. Two important issues are raised: first; do we have the right to smoke as part of the right to life and second; to what extent States have an obligation to protect the life of each individual and to ensure a healthy life and access to health care.

The Government of India ordered that the country's 1.3 billion people to stay at home for three weeks to prevent the spread of the Corona Virus. Police action was taken to punish those who tried to put their own lives at risk by violating confinement orders. This demonstrated the authority of the State to prevent any individual from harming themselves and others.

So how does the State let an individual smoke and put his/her life in danger? Corona pandemic has killed 3.29 lakh only so far from first and second waves, global tobacco epidemic kills 8 million people a year. About one person dies every six seconds from tobacco. According to the World Health Organization, tragically more than 80% of these deaths occur in developing countries. India is the second largest country in the world in terms of tobacco consumption and hence faces a large burden of tobacco-related mortality and disease.

In India, since 1975, it is mandatory to display a statutory health warning on all packages and advertisements of cigarettes because of the Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975 enacted by the Government of India. Further restrictions on tobacco trade were initiated along with efforts to bring forth a comprehensive legislation for tobacco control during the 1980s and 1990s.

The Parliament of India passed the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2003 in April 2003. This Bill became an Act on 18 May 2003. Rules were formulated and enforced from May 01, 2004. The Act is applicable to all products containing tobacco in any form, and extends to the whole of India.

The key provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2003 are as follows:
  • Prohibition of smoking in public places (including indoor workplaces). This has been implemented from 2nd October 2008 in the whole of India.
  • Prohibition of advertisement, direct and indirect (point-of-sale advertising is permitted), sponsorship and promotion of tobacco products.
  • Prohibition of sales to minors (tobacco products cannot be sold to children less than 18 years of age and cannot be sold within a radius of 100 yards of any educational institutions).
  • Regulation of health warning in tobacco products packs. English and one more Indian language to be used for health warnings on tobacco packs. Pictorial health warnings also to be included.
  • Regulation and testing of tar and nicotine contents of tobacco products and declaring on tobacco products packages.

Constitutional provisions vis-�-vis Environmental Protection
The Directive Principles of State Policy and the Chapter on Fundamental Duties explicitly enunciate the national commitment to protect and improve the environment. "It is now well settled Judicial principle that right to pollution free environment is the fundamental right and human right of a citizen." [Subhash Kumar Vs. State of Bihar & Ors., AIR 1991 SC 420]. "The Supreme Court in its Judicial pronouncements held that the "precautionary principle" and "polluter pay principle" is law of land. [Vellore Citizens Welfare Forum Vs. Union of India & Ors (1996) 5 SCC 647 at 659- 660].

Before the 42nd Amendment, the word 'environment' was not mentioned in the Constitution of India. By this Amendment, Article 48-A was added in the Directive Principles of State Policy and by Article 51-A, a new provision was inserted in the form of Fundamental Duty. According to Article 48-A "the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country".

As per the sub-clause (g) of Art. 51-A, "It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures".

In [Rural Litigation and Entitlement Kendra & Ors. Vs State of UP & Ors, AIR 1987 SC 359], the Hon'ble Supreme Court observed that protection of environment is not only a duty of the State under Article 48-A, but the citizens of India are also duty bound to protect the environment under Article 51-A (g) of the Constitution of India. Originally Fundamental Duty incorporated in the Constitution of India was not directly enforceable.

However, with the passage of time and through Judicial activism, necessary stimulus was provided to achieve the objective behind the incorporation of Fundamental Duty in the Constitution of India for the protection of environment. In [L. K. Koolwal Vs. State of Rajasthan & Ors, AIR 1988 Raj 2], the High Court explained the ambit of Article 51-A. It is true that it is the duty of the citizen to protect the environment under Article 51-A (g) of the Constitution of India but this Article also creates a right in the favour of the citizen to move to the Court for the enforcement of the Article 51-A(g) of Constitution of India.

In [M. C. Mehta Vs. State of Orissa & Ors, AIR 1992 Ori 225], Court observed that there cannot be any right without the duty. So if there is insanitation in the environment it will severely affect the life of citizens and hence it is the violation of Fundamental Rights of citizens. Hence, it is the duty of the citizen to see that the rights which are provided to them under the Constitution of India are fulfilled by the State.

In [AIIMS Students' Union Vs. AIIMS & Ors, JT 2001 (8) SC 218], Supreme Court observed that even though Fundamental Duties are not enforceable by the Court of Law, it still gives important guidance for the interpretation of constitutional provisions for the protection of environment. Court also emphasised that Fundamental Duties should be given its full meaning as intended by the 42nd Constitutional Amendment. When the Court is approached to give effect to Directive Principles of State Policy and Fundamental Rights, it cannot run away from its responsibility by saying that priorities are a matter of Policy.

Part III of the Constitution of India deals with Fundamental Rights. Article 21 of the Constitution of India deals with Right to Life. This right would be meaningless if there is no healthy environment for the citizens to live in. In [M.C. Mehta Vs. Union of India AIR 1987 SC 1086], the Supreme Court held that the Right to Live in pollution- free environment is a part of Fundamental Right to life under Article 21 of the Constitution of India.

In P.A. Jacob Vs. Superintendent of Police, Kottayam A.I.R. 1993 Ker. 1, the High Court held that subjecting an unwilling person to disastrous levels of noise pollution would amount to infringement of Fundamental Right of an individual under Article 21 of the Constitution of India.
Penal Provision vis-�-vis Environmental Protection

There are specific penal provisions in various legislations for the protection of environment. Chapter XIV of the Indian Penal Code, 1860 containing Section 268 to 294-A, deals with offences relating to Public Health, Safety etc. The main object of these provisions is to protect the Public Health, Safety and Convenience by rendering those act/s punishable which make the environment polluted and dangerous to the life of an individual.

Section 268 of the Indian Penal Code, 1860, defines the term public nuisance and Section 290 makes public nuisance punishable. Thus, under these provisions if any act or omission causing injury to any person by polluting the environment takes place, the same can be subjected to prosecution. Noise pollution is also punishable under Section 268 of Indian Penal Code, 1860. In [K Ramkrishnan Vs. State of Kerala, A.I.R. 1999 Ker. 385], the High Court held that smoking in public place comes under the category of public nuisance.

It is punishable under Section 290 of Indian Penal Code, 1860. Also, in [Murli S. Deora Vs. Union of India, 2001 (8) SCC 765], the Supreme Court held that under Article 21, smoking in public place is a violation of fundamental right of those who don't smoke.

Sections 269 to 271 of the Indian Penal Code, 1860 deal with negligent acts which are likely to spread infection of diseases dangerous to the life of people. These acts are punishable under Sections 269 to 271 of the Indian Penal Code, 1860. The punishment provided u/s 269 & 271 is imprisonment up to six months or fine or both. Section 277 can be used for preventing the water pollution. Under Section 277 punishment of imprisonment is up to three months or a fine up to Rupees 500/- or both. Apart from these, under Section 426, 430, 431 and 432 of the Indian Penal Code, 1860, pollution caused by mischief is also punishable.

There are two primary legislations that enlist penal provisions for violation of the law propounded in those legislations. They are The Water (Prevention and Control of Pollution) Act, 1974, and Environment (Protection) Act, 1986. According to Section 47 of The Water Pollution Act, a person is vicariously liable for the offence committed by the company if such person is in charge of the functions committed by the company or for conduct of business of the company. This is indispensible ingredient to constitute a case under Section 47 of the Act. However, the defense available under this Section is that the offence in question must have been committed without knowledge or consent of the accused in question.

"It also needs to be noted that Section 16 of Environment (Protection) Act, 1986 and Section 47 of The Water (Prevention and Control of Pollution) Act, 1974 are parimateria to each other. Herein, it is paramount that the complaint contains specific averments against the accused. It is not out of place to mention that the provisions of Section 16 of the Environment (Protection) Act 1986 are parimateria to the Section 141 of the Negotiable Instrument Act as well as Section 25 of the Contract Labour (Regulation and Abolition) Act, 1970, and Section 278 B of the Income Tax Act.

The Hon'ble Supreme Court while dealing with the cases under Negotiable Instruments Act in [National Small Industries Corporation Ltd. Vs Harmeet Singh Pental & Anr. 2010 (3) SCC 330] held that it is mandatory for the complainant to make averments in the complaint/petition that the accused is directly in charge and was responsible to the company for the conduct of the business of the company. The Hon'ble Supreme Court said that if the said necessary ingredient is missing in the complaint/petition, then in that case, prosecution launched against the accused cannot be sustained."

Law on the Right to life vis � vis Right to smoke and die
The "right to die" issue was first brought before a Two-Judge Bench of the Supreme Court of India in a case of [P. Rathinam Vs. Union of India, 1994 (3) SCC 394]. The Supreme Court recognized the decision of the Bombay High Court in The case of [Maruti Shripati Dubal Vs State of Maharashtra, 1987 (1) BomCR 499] and ruled unconstitutional Article 309 of the Indian Panel Code, which punishes attempted suicide on the grounds that it violates Article 21 of the Constitution of India.

The Court narrowed the scope of life under Article 21 of Constitution of India to include 'right to die' in its scope in the name of harmonization with the global wavelength. The analogy was drawn from the interpretation that freedom of speech and expression "includes freedom not to speak, freedom of association and movement" includes freedom not to join an association, freedom to move anywhere includes the freedom not to move and "freedom to do business" includes the freedom not to do business. So, rationally, it must follow that the right to live should also include the right not to live, that is, the right to die or end one's life.

The speech did not stop there and the case returned to the Supreme Court of ["Gian Kaur Vs. State of Punjab", 1996 (2) SCC 648]. The constitutional formation of the Supreme Court retained the analogy drawn from a superficial comparison between the fundamental freedoms in Maruti Shripati and P. Rathinam as imperfect. The Bench observed:

"The "right to life" is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and incompatible with the concept of the right to life. With respect and humility, we find no similarity in the nature of other rights, such as the right to freedom of expression', etc., to provide a comparable basis for asserting that the 'right to life' includes also the 'right to die'.

With respect, the comparison is inappropriate, for the reason given in the context of article 21. To give meaning and content to the word "life" in article 21, it has been interpreted as life in human dignity.

Any aspect of life that makes it worthy can be read into it, but not that which extinguishes it and is, therefore, incompatible with the continued existence of life, resulting in the obliteration of the right itself. The right to die, if it exists, is intrinsically incompatible with the right to life, just like death and life."

In [Aruna Ramchandra Shanbaug Vs Union of India, (2011) 4 SCC 454]. case the Supreme Court changed the narrative slightly and argued that a person has the right to die with dignity and allowed passive euthanasia with certain guidelines. In [Common Cause (A Regd. Society) Vs. Union of India & Anr., (2018) 5 SCC 1], the Supreme Court reiterated that the fundamental right to a "meaningful existence" includes a person's choice to die without pain or suffering, but it would be completely illogical to compare it to the right to smoke and die.

The Court relied upon the Judgement In re Quinlan (70N.J.10; 355 A.2d 647 (1976)) where the New Jersey Supreme Court held that as the prognosis of the patient dimmed, the State's interest grew weaker, and the right to privacy of the individual with respect to their bodily autonomy grew stronger. If the individuals themselves were not in a position to assert their privacy, this could be done by a guardian on their behalf.

It also relied upon the Judgement by the European Court of Human Rights in the case of Pretty vs. The United Kingdom (Application No. 2346/02) where the Court concluded that an individual had a choice to avoid what they consider an undignified and distressing end to their life, and that such a choice would be guaranteed under the right to respect for private life under Article 8 (1) of the European Convention on Human Rights.

The Court opined that the right to privacy mandated safeguarding the integrity of individual choice in the intimate sphere of decisions relating to death and held that the protection of these rights was an emanation of the right to privacy, as they were related to the fundamental right to life and personal liberty guaranteed by the Constitution of India.

Does a person have the right to shorten their own life in order to make it better and to shorten it, i.e. if this is a means or a necessary consequence to make it a better life overall ? This implies that a person has the right to live and die in particular, by his/her own convictions as to the life that would be best for him/her. But, there is a sense of something in each of us that is greater than any of us, something that makes human life more than just an exchange of costs for benefits, more than a simple job or a trip to the mall.

A sense of value within us that claims us � a value that we must respect. Life also confers advantages and disadvantages on people other than the person who lives it. Does a person have the right to deprive his/her children of a parent, simply because life is not worth enough for him/her. Emanuel Kant is right to say that exchanging one's person for benefit or relief from harm depreciates the value of the person, respect for which is the criterion of morality.

Given that passive smoking is characterized as involuntary smoking, it is literally nothing short of assault on non-smokers, and a fatal one at that, in light of the well-documented health hazards posed to non-smokers by high levels of nicotine and continine in their bloodstream. Therefore, smoking is evil.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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