This article was written and edited by the team at Anoop & Co. – AOR Anoop Prakash Awasthi, Adv. Parthvi Ahuja and Ananya Singh.
Smoking tobacco and its sale has been regulated by the Government of India time and again to ensure that the health of the people is secured. The concept of smoking is not new to the Indian society.
The history of smoking is traced in Atharveda which is one of the most ancient Vedic Scripture of Hinduism. The Hindu Scripture Atharveda mentions about cannabis smoking in India in 2000 B.C. it also says about the fire offerings for medicinal purposes. It is said that tobacco was introduced in India in 1600’s.
Earlier humans were treated as chattels and were sold and used for the purpose of slavery and were not given the privilege to enjoy even the basic human rights. However, the situation has changed over the period of time a great value and emphasis is laid on the protection of human rights. India is a welfare state endeavours to develop the standard of living of its people and ensure that the basic rights guaranteed to them are not violated.
The Constitution of India under Chapter III provides the list of fundamental rights. Article 21 of the Constitution of India guarantees to every person right to life and personal liberty. The ambit of Article 21 has been expanded to include the right to health which is also a basic human right. The right to life also includes the right to clean environment as in polluted environment good health cannot be attained which is also an essential of the right to life.
Tobacco causes various health hazards which affect the human life directly as well as indirectly. To improve the public health various steps have been taken by the Government of India to curb the consumption of tobacco but these steps could not achieve their objective due to the lack of implementation. So what exactly is tobacco?
The World Health Organisation (WHO) defines tobacco as a product that contains “nicotine”, which is the most addictive psychotropic substance. Tobacco products are made entirely or partly of the leaf of the tobacco plant (used as raw material), and they can be smoked, sucked, chewed or smothered.
Smoking tobacco is a fashion in India. According to Global Adult Tobacco Survey (GATS) India, in the year 2009-10, nearly 35% Indians consumed tobacco in various forms.
It was earlier believed that only cigarettes contained tobacco, but the truth is that tobacco is consumed in various forms. Earlier tobacco was consumed in bidis or hand rollers, but now tobacco is sold under different names like hookahs, pas masala, etc. A report by WHO says that around 12% of world’s smokers are Indians.
There are various legislations in India to curtail this very serious societal issue. There is a full-fledged act to combat smoking activities by the public. Firstly, the Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975 was enacted which made it mandatory for all the cigarette packages to display a warning by stating that it is injurious to health.
This act was replaced by Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation to Trade and Commerce, Production, Supply and Distribution) act, 2003 which aimed at protecting citizens from being exposed involuntarily to this harmful smoke. The act aimed at preventing young people get addicted to smoking.
There are other laws as well that asks for non-smoking in India. The first being The Indian Railways Act, 1989 which prohibits smoking in any compartment of the train. Secondly, the Workmen’s Compensation Act, 1923 aims at protecting the rights of the employees, and by which the employer is liable to compensate the employee where they are exposed to toxic chemicals by way of smoking. Other than the laws mentioned above and regulations, even the Constitution of India; Preamble, Fundamental rights, DPSP comes into the picture.
Since the inception of the hookah culture in India, it has been seen in a spate of controversies. And now and then, some or the other states put a ban on sale and consumption of tobacco.
In Murli S. Deora Vs UOI (2002 SC 40) the Hon’ble Supreme Court has acknowledged the harm which is caused by active as well as the passive smoking and held that non-smokers should not be forced under any circumstances to inhale second-hand smoke in public. The Hon’ble Court thereafter prohibited smoking in public places and also issued directions to the Government to ensure by taking steps that prohibition on smoking in public places is implemented.
In yet another case of K. Ramakrishnan vs. state of Kerala (AIR 1999 Ker 385) the judiciary while facing the question with regards the issue of public health from the danger of passive smoking the Court held that smoking in public places is a punishable offense and smoking in public place violates the right to life guaranteed under Article 21 of the Constitution of India.
The Cigarette and Other Tobacco Products (Prohibition of Advertising and Regulation of trade and commerce, production, supply and distribution) Act, 2003 known as COTPA was enacted with the object to protect the public health as it prohibited smoking in the public places and also banned the advertisement of tobacco products for promotion. Some of the key features of the Act are as follows:
Section 4: this section of the Act strictly provides that no person shall smoke in any public place. The section however in itself draws exceptions to this general rule by stating that smoking can be permitted in hotels having more than 30 rooms or restaurants having a seating capacity of 30 persons or more and in airports, a separate area is to be created which is to be dedicated for smoking purpose.
Section 6: under this section, no person is allowed to sell, offer for sale or permit any sort of sale of cigarette or tobacco to any person who is below the age of 18 years or is within the radius of 100 meters of an educational institution.
Section 7: this section prohibits the production, commercialization, or trade, of tobacco or cigarette without displaying a warning on the package containing tobacco or cigarette in the prescribed manner. The warning displayed on the package must necessarily occupy 40% of the principal display area on the front of the packet and such other warnings as may be prescribed. The Act also lays that nicotine and tar content in the product should not exceed the maximum permissible limit.
After the enactment of this Act India also became a member of the WHO Framework Convention on Tobacco Control.
There is a thin line of distinction between a liberty and license. And when liberty becomes license, dictatorship is near. There is a huge difference between a law on paper and in reality. Although age restriction is there in the law very rarely, this has been followed. There must be some valid reason to ban the consumption of hookahs, mainly because many times they contain an excessive amount of nicotine. There is an easy access of hookah to children below the age of 18 in our country.
Moreover, the legal procedure for acquiring a license for establishing a hookah bar depends on the money quotient, meaning thereby that anybody who can pay a lot of money can easily open a lounge. More or less, the procedure nowadays has become very easy, and just by obtaining a Trade License from a local authority one can set up his hookah parlor.
But looking at the present scenario of India, the need of the hour is that law should meddle whenever the legal procedure hasn’t been complied with so that only those people consume it who are legally authorized to and who know about the consequences of their respective acts. But, simply banning something would not help, it could further aggravate the situation as it leads to curiosity in the minds of children and youth, and they might try to opt for an illegal way of doing that.
