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Rajasthan High Court · body

2015 DIGILAW 1230 (RAJ)

Rahul Joshi v. Union of India

2015-07-03

BANWARI LAL SHARMA, SUNIL AMBWANI

body2015
Hon'ble SHARMA, J.— Issue notice to the respondents. 2. The notices on respondent Nos. 1 and 2 will be served in the Office of the Additional Solicitor General of India, at Rajasthan High Court Bench, Jaipur. The notices on respondent Nos. 3 and 4 will be served in the Office of the Advocate General of the State of Rajasthan at High Court Bench, Jaipur. On the tendering of notices on Law Officers, the service on the respondents will be treated to be sufficient service on them. All the respondents are allowed four weeks time to file counter affidavit. The rejoinder-reply will be filed by the petitioner within two weeks thereafter. 3. List on 17.8.2015. 4. By this writ petition, filed in public interest, the petitioner-a public spirited citizen, concerned with the loss of thousands of lives on acquiring fatal diseases on the use of tobacco products, especially cigarette smoking, after making comprehensive research and annexing news items and research papers as well as the order passed by the Hon'ble Supreme Court in the matter of passive smoking, in Murli S. Deora vs. Union of India And Others, (2001) 8 SCC 765 , and the order of the Allahabad High Court in Writ Petition No. 1078 (M/B) of 2013-Love Care Foundation vs. Union of India and another, dated 21.7.2014, recommending plain packaging of cigarettes and other tobacco products, has prayed for a direction to implement and enforce the Cigarette and other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014 (in short, `the Rules of 2014'), made by the Central Government in exercise of the powers conferred by the Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (in short, `the Act of 2003'); to immediately frame, promulgate and implement plain packaging Rules for cigarette and other tobacco products; to prohibit the use of colour, imagery, corporate logo, trademarks from all cigarette and tobacco products; to prohibit the sale and distribution of cigarettes and other tobacco products till implementation of plain tobacco packaging in the State of Rajasthan; and to prohibit the sale and distribution of loose cigarettes and other tobacco products. The petitioner has also prayed for revocation of reduction of tax on the sale of cigarettes and other tobacco products by the State of Rajasthan in the current financial year. 5. The petitioner has also prayed for revocation of reduction of tax on the sale of cigarettes and other tobacco products by the State of Rajasthan in the current financial year. 5. The earlier writ petition, filed by the same petitioner for prohibition of smoking in public places, being D.B. Civil Writ Petition No. 4543/1999, was withdrawn by him on 25.8.2000, as the State Government had passed legislation prohibiting smoking in the public places. 6. The petitioner has annexed a large number of research papers, to show that the attractive advertisements with logos imagery, corporate logos, and trademarks, have increased the sale of cigarettes in the market, and consequently, considering the attractive advertisements issued in sale of cigarettes, the Act of 2003 was promulgated, providing for various prohibitions and restrictions, including prohibition on smoking in a public place under Section 4; prohibition of advertisement of cigarettes and other tobacco products under Section 5; prohibition on sale of cigarettes or other tobacco products to a person below the age of eighteen years and within 100 yards of the schools under Section 6; and restrictions on trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products under Section 7. The Act of 2003 also provided for size of letters and figures, and the manner to display the specified warning of the dangers of smoking on the packagings. 7. It appears that considering the fact that warning on the cigarette packages and the depiction of sign of danger of smoking were not found to be sufficient, the Rules of 2014 were notified on 15th October, 2014, amending sub-Rule (1) of Rule 3, and providing for specified health warning, to cover at least 85% of the principal display area of the package, of which 60% shall cover pictorial health warning and 25% shall cover textual health warning, to be positioned on the top edge of the package and in the same direction as the information on the principal display area. 8. It is stated that increase in the size of warning, was considered necessary for reducing the sale of cigarettes. 8. It is stated that increase in the size of warning, was considered necessary for reducing the sale of cigarettes. The Central Government, however, for the reasons best known to it, and which do not, prima-facie, appear to be bonafide, issued a Corrigendum, in the Rules of 2014, by Notification dated 26th March, 2015, substituting sub-Rule (2) of Rule 1, providing that the Rules shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 9. The Rules, which provided in sub-Rule (2) of Rule 1, to come into force with effect from the 1st day of April, 2015 were, thus, deferred, and that till date, the Rules of 2014, amending the Cigarettes and other Tobacco Products (Packaging and Labelling) Rules, 2008 (in short, 'the Rules of 2008'), having an important purpose and immediacy in public interest, have not been notified. 10. The Ministry of Health and Family Welfare had carried out a survey and found that 8 lacs deaths are reported every year on account of tobacco related diseases, like cancer, coronary artery disease and chronic obstructive lung disease. We are also informed of an important findings in a study, that the amount spent on the treatment of these three diseases by the Central and State Government, is much more than the amount, which is collected by way of revenue, from sale of cigarettes and tobacco products in India, apart from sufferings by the victims and their family members. 11. The Rules of 2014, were notified after exhaustive research by the Ministry of Health and Family Welfare, that increase in the size of warning will have moderate but effective result in reduction in the sale of cigarettes, and thus, there was no reason for issuing the Corrigendum, by which the enforce-ment of the Rules of 2014, notified on 31.3.2015, was deferred indefinitely, until a notification is issued by the Central Government in the Official Gazette. 12. On the question of plain packaging of tobacco products in India, it is stated that in Australia and France, by introduction of plain packaging, considerable reduction of sale of cigarettes has been observed. 12. On the question of plain packaging of tobacco products in India, it is stated that in Australia and France, by introduction of plain packaging, considerable reduction of sale of cigarettes has been observed. The plain packaging, as explained with reference to the studies carried out in Australia, means as follows:- "Plain packaging is a public health policy legislative intervention designed to combat the misleading nature of tobacco product packaging and to heighten the effects of pictorial health warnings. It is the removal of extraneous colors, embossing, and misleading terms like `Ultra mild, `Honey dew' Silky smooth' etc. on a tobacco product package. At present, product packaging helps tobacco firms to not only retain existing users but promote the brand and even create "incidental brand encounters" to affect the buying patterns of non-users who see that package. Plain packaging fights this and also amplifies the effects of pictorial health warning which depict the serious health risks of consuming tobacco products. Plain packaging thus eliminates the "badge value" of the external packaging." 13. It is submitted that the Act of 2003 and the Rules of 2004, as amended in the year 2011, and thereafter in the year 2014, have had moderate, but considerable effect on the reduction of the sale of cigarettes. The plain packaging as an improved and effective strategy, therefore, should be given a serious thought by legislative, to reduce the sale of cigarettes and other tobacco products, inasmuch as similar experiments have been successfully implemented in Australia and France, and there is no reason that the Government of India and the State of Rajasthan, should also consider, bringing a legislation in this regard, if they are really serious about the public health and the guarantees ensured by Article 21 of the Constitution of India, to the citizens including protection of their health. 14. We are also informed that Value Added Tax (VAT) on the sale of cigarettes, has been reduced in the State of Rajasthan in 2015-16, from 65% to 45%, thereby making the cigarettes cheaper, increasing its sale, which has direct effect on the health of the people of the State of Rajasthan. 15. 14. We are also informed that Value Added Tax (VAT) on the sale of cigarettes, has been reduced in the State of Rajasthan in 2015-16, from 65% to 45%, thereby making the cigarettes cheaper, increasing its sale, which has direct effect on the health of the people of the State of Rajasthan. 15. After hearing learned counsel appearing for the petitioner, at length, and considering the research, which has been undertaken as well as the orders passed by the various High Courts and the Supreme Court, we find it imperative, and in the larger public interest, to stay the operation of the Corrigendum, notified by the Central Government in the Gazette of India, on 26th March, 2015, by which, sub-Rule (2) of Rule 1 was substituted, providing that the Rules shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, which substituted the provision of Rule 1(2) of the Rules of 2014, to bring the Rules into force with effect from the 1st day of April, 2015. 16. As a result of the interim order, the Rules of 2014, will come into force immediately, and will be enforced by the Central Government and the Government of Rajasthan. 17. As regard the prayer for a policy and legislation on plain packaging, we call upon the Central Government as well as the State Government, to submit their replies, taking into consideration the research papers, annexed with the writ petition, as well as the orders passed by the Allahabad High Court in Love Care Foundation vs. Union of India and another (supra), annexed as Annexure-5 to the writ petition. 18. The State Govt. will also submit reply, giving the reasons as to why VAT was reduced on cigarettes in the State of Rajasthan, from 65% to 45%, against its own policy, to reduce the use and consumption of cigarettes in the State of Rajasthan, which is a health hazard, and ultimately results into spend-ing much more amount on the health care, on the consequences of smoking. 19. The application for interim stay on the reduction of VAT, will be considered on the next date.