The Karnataka High Court has issued rule and will finally hear a Public Interest Litigation filed by Healthcare Global Enterprises, which operates a network of Cancer hospitals in India, seeking to hold Section 4 of the Cigarettes and other Tobacco Products (COTPA) Act, as unconstitutional. The section prohibits smoking in public places, but allows smoking in separate rooms at restaurants and Airport.
A division bench of Chief Justice Abhay Oka and Justice S R Krishna Kumar though clarified that due to high pendency the petition would not be taken up soon as other urgent matters are pending hearing.
The petition filed through Advocate K V Dhananjay states that second-hand smoke is dangerous to those exposed to it. The Central Government, as well as the Parliament of India, have already recognised such a danger. Section 4 of COTPA is that recognition.
As such, the continued presence of the proviso to Section 4 of COTPA would harm public health and, therefore, defeat public interest. The same deserves to be summarily struck down. It adds that the proviso to Section 4 of COTPA owes its legitimacy to one and only factor – effectiveness of mechanical ventilation to ward off cigarette smoke in a public place. The Government of India is fully aware of the established fact that there is no safe level of cigarette smoke. Even a minute quantity of second hand cigarette smoke would be injurious to human health.
It would be absurd to assume that the public in restaurants and cafes that are seated in the non-smoking zone ought to protect themselves from second-hand smoke in whatever way they could. To begin with, patrons that are seated in non-smoking zones are the members of the public that have a Fundamental right, to breathe air that is not rendered toxic due to cigarette smoke nearby.
It is too well known that the vulnerable sections of our society such as the elderly, children, pregnant women, people with pre-existing diseases or medical complications that frequent restaurants or cafes risk their health to a far higher degree than other members of the society. There is no justification whatsoever for permitting smoking in enclosed public places when we are already too aware of the great danger such smoking poses to the public that would be assembled at such places –given the poor public awareness about the possibility of tobacco smoke in a smoking room leaching into non-smoking rooms.
The regulations framed under COTPA, 'The Prohibition of Smoking in Public Places Rules, 2008' do not and cannot protect public health since the best implementation of those regulations would still expose the patrons seated in the adjoining rooms to the danger of tobacco smoke.