10 April 2022 2:39 PM GMT
Smoker's interest in self-determination stands at odds with state's obligation to protect the life of each individual and provide them a healthy life. Two important questions are raised: first; do we have right to smoke as integral part of right to life and second; to what extent states are under obligation to protect the life of each individual and ensure them a healthy life and also...
Smoker's interest in self-determination stands at odds with state's obligation to protect the life of each individual and provide them a healthy life. Two important questions are raised: first; do we have right to smoke as integral part of right to life and second; to what extent states are under obligation to protect the life of each individual and ensure them a healthy life and also access to healthcare. Indian government ordered all 1.3 billion people in the country to confine to their homes for three weeks to avoid spread of corona virus. Police actions were taken to punish those trying to imperil their own lives by violating lockdown orders. This demonstrated the authority of the state to stop any individual from harming oneself and also harming others. Then how does state let individual to smoke and put his life at risk? Corona pandemic killed 3.29 lakh only so far from first and second waves, global tobacco epidemic kills 8 million people yearly. Approximately one person dies every six seconds due to tobacco. According to World Health Organisation ['WHO'], tragically more than 80% of those deaths occur in the developing world. India is the second largest country in the world in tobacco consumption and therefore faces a substantial tobacco-related mortality and morbidity encumbrance.
Right to Life vis-a-vis Right to Smoke & Die
The issue of 'right to die' first came before a two-judge bench of the Supreme Court of India (SCI) in case of P. Rathinam v. Union of India (1994). The apex court avowed the Bombay High Court's decision in Maruti Shripati's case and held Section 309 IPC which penalizes attempt to commit suicide unconstitutional on the ground that it violates Article 21 of the Constitution. The court restricted the scope of life under article 21 to include 'right to die' within its ambit in the name of attunement with the global wavelength. Analogy was drawn from interpretation that freedom of speech and expression' includes freedom not to speak, freedom of association and movement' includes freedom not to join any association, freedom to move anywhere includes freedom not to move and 'freedom of business' includes freedom not to do business. Then rationally it must follow that right to live should also include right not to live, i.e., right to die or to terminate one's life.
The discourse did not stop here and matter came once again before the apex court in Gian Kaur v. State of Punjab (1996). The constitution bench of SC held the analogy drawn from superficial comparison between fundamental freedoms in Maruti Shripati and P. Rathinam as flawed. The Bench observed:
'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 inconsistent with the concept of right to life. With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to freedom of speech' etc. to provide a comparable basis to hold that the 'right to life' also includes the 'right to die'. With respect, the comparison is inapposite, for the reason indicated in the context of Article 21. To give meaning and content to the word 'life' in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The right to die', if any, is inherently inconsistent with the right to life' as is death' with life.'
In Aruna Shanbaug case the SC slightly changed the discourse and held that a person has right to die with dignity and permitted passive euthanasia with certain guidelines. In Common Cause (A Regd. Society) v. Union of India (2018) the SC reiterated that fundamental right to a "meaningful existence" includes a person's choice to die without pain and suffering but it would be completely illogical to compare it with right to smoke and die.
Waiver of Right to Life not Permissible
Whether a citizen of India can waive his fundamental right? Whether a breach of fundamental rights obligation imposed on the State by the Constitution be waived by any citizen? The SC in Bashesar Nath v. CIT (1959) rejected the proposition that some fundamental rights are enacted only for the private benefit of a citizen (e.g., right to property) which can be waived by individual and some fundamental rights are enacted for the public good or as a matter of public policy and that cannot be waived. It held that Part III of the Constitution warrants no such distinction. The fundamental rights are enacted with all precision and wherever drafters of the constitution wanted limitations on these rights they made it in express terms. There will be no justification at all for adding any more limitation than what is expressly stated. The court refused to borrow the American "waiver of fundamental right doctrine" on the ground that the American Constitution is fundamentally different from Indian Constitution. Whereas the American Constitution was merely enacted in order to form a more perfect union and was an outline of governance and nothing more, Constitution of India was drafted primarily to secure justice, liberty and equality to all its citizens and constitute it a welfare state.
Whether a person has the right to make his own life shorter in order to make it better and to make it shorter that is if doing so is a necessary means or consequence of making it a better life on the whole for him? This implies that a person has the right to live and die in particular, by his own convictions about which life would be better for him. But, there is a sense of something in each of us that is larger than any of us, something that makes human life more than just an exchange of costs for benefits, more than just a job or a trip to the mall. A sense of value in us that makes a claim on us-a value that we must live up to. Life also confers benefits and harms on people other than the person living it. Does a person has right to deprive his children of a parent, simply because life is not worth enough to him. Emanuel Kant is right in saying that trading one's person in exchange for benefits or relief from harms demeans the value of personhood, respect for which is the criterion of morality.
That is why, smoking is an evil. At this point we should not mistake in comparing this with passive euthanasia which our SC endorsed on the ground of patient's pain which is an unstoppable process of deterioration which may cut short or risk cutting short, without disrespect to the person's dignity. Euthanasia is permitted in extreme cases considering the patient's dignity and not on the ground that it is one's right or autonomy. Person's dignity must be focal point to decide whether person must be allowed to end his life. The question of autonomy will not even arise because smoking starts during adolescence and by the time one reaches to their adulthood it becomes an addition.
We may not forcefully snatch smoke from people's mouth on the ground that it is immorally self-destructive. The impermissibility of someone else's conduct does not necessarily give one permission to interfere with it. By the same logic, encouraging someone in impermissible conduct is itself impermissible. That is why we believe that tobacco industry is engaged in immoral enterprise. It's not illegal because state has allowed industry to engage with this trade and business.
But it is certainly unconstitutional and immoral on the part of the state which in spite of knowing all the fact-sheet about dangerous impact of smoking on people's life and health care system licenses not only the tobacco industries to manufacture these products but also allows people to consume it.
The Government of India has been conscious of tobacco burden and has taken steps to regulate the tobacco industry and reduce tobacco use. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) was a breakthrough in this direction but tobacco industries soon found ways to overcome legal embargoes and therefore COTPA requires drastic amendments. The amendment Bill which prohibits sale of any tobacco product without license, sale of tobacco products to persons below 21 years and puts control on in-shop advertising and promotion is pending before the Parliament and if passed will give more power to implementation agencies to control tobacco industries tactics. But, question still remains, why does state permit tobacco industries to run and grow at all in spite of knowing that it kills?
The author is Professor of Law & Registrar, National Law University Odisha.
Views are personal.