Delhi High Court Refuses To Entertain Plea Against Prohibition On Carrying E-Cigarettes On Aircrafts

The Delhi High Court on Monday refused to entertain a petition challenging the prohibition on carrying e-cigarettes on aircrafts.

After Justice Subramonium Prasad hinted on dismissing the petition with a “six figure cost”, the counsel appearing for the petitioner, Sutirtha Dutta, withdrew the plea.

The court allowed the withdrawal with a liberty to Dutta to make a representation to the Union Government on the issue.

“The counsel seeks for withdrawal of the petition and give a representation the Union of India. Leave and liberty granted. The petition is accordingly disposed of,” the court said.

Dutta sought quashing of an order issued by the Ministry of Civil Aviation Security in March last year prohibiting the carriage of e-cigarettes aboard aircraft. He also challenged a clarification issued by the Union Ministry of Health and Family Welfare by which a complete ban was imposed on e-cigarette devices.

Dutta, a public health professional, contended that he is a frequent flyer and a user of vaping devices. He said he is affected by the prohibition to carry e-cigarette on aircrafts as it had led to confiscation of vaping devices from travellers passing through various airports.

“The petitioner is a user of e-cigarettes, being a former smoker, having successfully quit combustible cigarettes with the aid of e-cigarettes as a safer alternative. Being a frequent traveller, the petitioner is apprehensive that he might relapse and start smoking as a result of the unavailability of his e-cigarette device due to the impugned order issued by the Respondent No. 2,” the plea stated.

During the hearing today, Advocate Farrukh Khan appearing for Dutta submitted that e-cigarettes are a “lesser harmful alternative” and that a myth has been created that they are more harmful than real cigarettes.

“I am before this court on the question of law. When the Act, can the Ministry go beyond the mandate of law?,” Khan said.

After hearing Khan’s submissions, Justice Prasad said that he is inclined to impose a cost of not less than Rs. 50,000.

“You are doing so good for the society to promote e-cigarettes. Then you please contribute for other good also, cost for the society….I don’t know how much cost I’ll be imposing but definitely above Rs. 50,000… Tell me, should it be a five or six figure cost?,” Justice Prasad asked Khan who later withdrew the petition.

It was Dutta’s case that e-cigarettes are not a threat to the aircraft and nor is their personal use expressly banned under any legislation.

He submitted that the Union Government had acted beyond the scope of their powers conferred by the Aircraft Act and the Rules since e-cigarettes cannot be classified as an article that pose as a threat to the aircraft and its passengers.

“It is further submitted that E-cigarettes are battery-operated devices that vaporise a nicotine-containing liquid. Batteries, per se, are not a prohibited item (cell phones, laptops and even loose batteries are allowed in the aircrafts), nor is nicotine in its various forms prohibited from being carried in the aircrafts (cigarettes, nicotine gums and other tobacco products etc. are allowed in aircrafts). Even though their use on the aircraft is prohibited, the same is already applied to e-cigarettes too through in-aircraft announcements,” the plea stated.

It added: “The Respondents have wilfully diluted the aforementioned distinction without applying reasonable mind. The use of e-cigarettes can be restricted by the announcements in the aircraft but the complete ban on carrying the e-cigarettes is unreasonable restriction on Article 19(1) of the Constitution of India, while the e-cigarettes do not pose any threat to the safety of the aircraft or public flying in the aircraft.”

Title: SUTIRTHA DUTTA v. MINISTRY OF HEALTH AFFAIRS AND FAMILY WELFARE & OTHERS

Citation: 2023 LiveLaw (Del) 1075