Provision making it mandatory lying dormant for 12 yrs
Observing that law should not be permitted to remain dormant without any public interest, the Uttarakhand High Court on Monday directed the Centre to consider within six months whether the Section 7(5) of The Cigarettes and Other Tobacco Products Act, 2003, which makes it mandatory for manufacturers to indicate nicotine and tar content on cigarette and tobacco products, should be enforced or not after remaining dormant for 12 years.
“The law shall not be permitted to remain dormant without any public interest. The enactment of the law is the collective will of the people. The law is expected to change and evolve itself over the time. The non-enforcement of certain provisions for a considerable period, as in the present case, for more than 12 years would be counterproductive,” said a bench of Justice Rajiv Sharma and Justice Manoj Kumar Tiwari.
“…we issue a writ in the nature of mandamus to the Central Government to consider within a period of six months from today whether sub-Section 5 of Section 7 of the Act, 2003 should be brought into force or not,” directed the bench.
Section 7(5) provides that: “No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof.”
A petition moved by Dharmendra Kansal had highlighted that though the Parliament had enacted the Act in the year 2003, Sub-Section 5 of Section 7 has not been enforced till date.
Kansal submitted that India exports about 100 million kg of tobacco leaves a year and is the world’s sixth largest exporter. The export value of tobacco for the year 2011-12 was Rs 4100.30 crores.
He also informed the court that a total number of premature deaths caused by tobacco during the 20th century has been estimated about 100 million and, if current trends of tobacco use continue during the 21st century, the death toll is projected to go up to one billion. India will have the fastest rate of rise in deaths attributable to tobacco, as per the findings of the World Health Organization (WHO).
The bench also noted that revenue earned by the Centre from the sale of cigarettes showed a constant rise with Rs 5,495 crores in the year 2004 to Rs 12,133 crore in the year 2012.
The court took note of the statement of objects and reasons of the Act and said tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. The treatment of tobacco-related diseases and the loss of productivity caused, therein cost the country almost Rs13,500 crore annually. There is a need for a comprehensive legislation to prohibit advertising and regulation of production, supply and distribution of cigarettes and tobacco products.
“India is the sixth largest exporter of tobacco. The total number of premature deaths caused by tobacco was estimated by 100 million and it is likely to be increased to one billion. It is admitted by respondent no.1 that nicotine and tar are injurious to health,” said the bench.
It was also critical of the Centre taking cover of recommendation of Framework Convention on Tobacco Control (FCTC) not to enforce sub-Section 5 of Section 7 of the Act as it said, “We are intrigue to notice that the Government of India has taken shelter under the recommendation of FCTC not to enforce sub-Section 5 of Section 7 of the Act. The underlying principle for enactment was to minimize the health hazard due to consumption of tobacco. The Government of India instead of enforcing sub-Section 5 of Section 7 had hinted to amend the Section itself.”
The court also rejected the argument of the government that displaying of maximum permissible limits of tar and nicotine contents may be misused to promote tobacco products ‘as safer products’ in contravention to the objectives of the Act.
The bench left it on the Centre to take a call on the enforcement of the provision rather than directing it to enforce the said as it cited various Supreme Court judgments, including Common Cause vs. Union of India & others, where it was held that where the government was alive to the problem and had not ignored the will of Parliament but on representation from persons likely to be affected by the enforcement of the Act found that it was necessary to carry out certain amendments to the Act before its enforcement and introduced the amending Bill in Parliament but due to various difficulties consideration of the Bill by Parliament was getting delayed, no mandamus could be issued to the government to notify the date to bring the Act into force.
“In view of the definite law laid down by their Lordships of the Hon’ble Supreme Court, no mandamus can be issued to the Central Government to enforce sub- Section (5) of Section 7 of the Act, 2003 but a mandamus can be issued to the Central Government to consider within a reasonable period whether sub-Section (5) of Section 7 of the Act, 2003 should be brought into force or not, in larger public interest,” it said while passing the order.
It is to be noted that the high court had, in June 2014, banned the sale of cigarettes without the specified warning on its label and even directed that nicotine and tar content be also mentioned. Thereafter, a review petition was filed and allowed in the year 2016. The judgment in the petition was reserved in August 2018.