INTRODUCTION

Smoking has been an old age practice in India since 2000 BC. Cannabis was first used to smoke & was first mentioned in the Atharvaveda. Tobacco was introduced in India during the Mughal era, by Portuguese 400 years ago. It slowly became a part of the socio-cultural environment in various communities, especially in the eastern, northeastern, and southern parts of the country. India is the second- largest producer of tobacco in the world after China. And also India is the second- largest consumer of tobacco in the world, second only to China.

With the start of the 20th CE, tobacco smoking became very popular in India, especially among the youths & slowly it began to spread all over the country. The percentage of tobacco use among youths is 35%, among males  is 48%  and among males is 20%. In rural areas  nearly 38% and in urban areas 25% , use tobacco in some form.

Smoking is very dangerous to one’s health. It is the habit of inhaling and exhaling the smoke of tobacco. These days the most diseases & deaths are due to continuous smoking. The people who don’t  smoke  are also getting affected by the bad effects of smoking in a passive way. The people inhale Secondhand Smoke (SHS)  or Environmental Tobacco Smoke (ETS) which causes “Passive Smoking” which is equally injurious to health. Also, the rise in air pollution due to this is a big threat to the countries. Passive smoking causes various types of problems like cancer, permanent disability and even death.

People started smoking in public areas like restaurants, bars , clubs, parties, airports and even at their homes. This created a problem for several other peoples who don’t have the habit of smoking, especially small children, and old age peoples.

In 2007, the World Health Organization's Framework Convention on Tobacco Control set the ground rules for protecting nonsmokers’ health. . Given that standard ventilation systems cannot eliminate the toxic components of tobacco smoke, the only effective way of avoiding the risk of passive smoking is to ban tobacco use in closed spaces. It is very difficult to regulate air quality in the home and the only way to control passive smoking in this context is through education and helping smokers give up the habit. In the workplace and elsewhere in public, legislation does effectively restrict tobacco use, so as to protect the health of nonsmokers faced with a risk they have not chosen to face. Moreover, the laws favor a change in the deceptive perception that smoking is a social habit and clearly establish it as an addiction with severe consequences for smokers and those who live with them.

LAWS ON SMOKING IN PUBLIC PLACES IN INDIA

Therefore, the government put a ban on smoking  in public places which covers offices, hotels, restaurants, hospitals, college campuses, bars and discos, under the Prohibition of Smoking in Public Places Rules, 2008[1], and Cigarettes and other tobacco Products Act (COTPA),2003[2]  in an effort to curb the high levels of tobacco addiction. The law also bans any advertisement of tobacco products and the sale of cigarettes to children whether it be direct or indirect.

India’s health minister says “hundreds of thousands of people who have never smoked die each year by inhaling smoke from other people’s cigarettes and bidis (small hand-rolled cigarettes  common in India).”[3]

“Section 4 of the Cigarettes and other tobacco Products Act (COTPA) describes Prohibition of Smoking at Public Places” as a result of India becoming a party to the World Health Organization Framework Convention on Tobacco Control on February 27, 2005.

COTPA Sec 4: Prohibition of Smoking in Public Places

Section 4: “No person shall smoke in any public place: Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made.”

What are public places?

Section (4) of the COTPA 2003 prohibits smoking in all public places. ‘Public Place’ is defined as any place to which the public has access whether as of right or not and includes all places visited by general public namely auditorium, hospital building, railway waiting room, amusement centers, public offices, court buildings, educational institutions, libraries, coffee houses, canteens, banks, clubs and also open spaces surrounding hotels/restaurants etc .

What happens if one violates Sec 4?

  • Any violation of any Provision in this section is a punishable offence with fine extending up to Rs. 200.
  • An offence under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in Code of Criminal Procedure, 1973.

WHAT IS JUDICIAL PERSPECTIVE ON SUCH MATTER?

The very first judicial notice and ban on smoking in public places born out of a Division Bench of Kerala High Court in 1991 from where the world has inspired and followed footsteps.

Later, in the case of Murli S. Deora vs. Union of India[4]  the Supreme Court held that  Fundamental right guaranteed under Article 21 of the Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then - why should a non-smoker be afflicted by various diseases, including lung cancer or heart disease, only because he is required to go to public places ? Is it not indirectly depriving of his life without any process of law ? The answer is obviously - "yes". Undoubtedly, smoking is injurious to health and may affect the health of smokers but there is no reason that the health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution.

 If the owner, proprietor, manager or supervisor, or in-charge of affairs of the public place fails to act on the report of such violation, he shall be fined equivalent to the number of individual offences. Realizing the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places. This landmark has carved the way for legislation in the frame of COTPA 2003.

CONCLUSION

India being a developing nation can’t afford its youth suffering from chronic effects of passive smoking. Thus, these laws are needed by society but still there is scope of improvement in terms of execution of these laws. In the author's view our country may have 100 laws on smoking but unless it is associated with intentional execution we will always fall short of what we require and short of what we deserve.

It is pertinent to keep a check on smoking in public incidences as the harm it causes is inevitably dangerous in the long run. And in a country like India, where its consumption is a level above the moderate, its consumption cannot go unchecked and unmonitored in order to protect the health and wellbeing of its citizens. Where there is no proper restraint in production of such harmful products, only the option we have left is that it has to be prevented to cause damage to Young India’s lungs and protect all its citizens from falling prey to hazardous health diseases.


[1] w.e.f. 2nd October, 2008

[2] w.e.f 1st May 2004.

[3]http://news.bbc.co.uk/2/hi/south_asia/7645868.stm#:~:text=The%20government%20says%20India%20has%20more%20than%20120%20million%20cigarette%20smokers.&text=India's%20health%20ministry%20says%20hundreds,rolled%20cigarettes%20common%20in%20India).

[4] (2001) 8 SCC 765


World No Tobacco Day is celebrated on 31st May every year. We request our reader to 

"Say No to Tobaccos"


About the Author: This Legal Article is prepared by Ms. Alisha Singh, law student at Lloyd Law College and was an intern at MyLawman. She can be reached at adv.alishasingh19@gmail.com. 

MyLawman is now on Telegram (t.me/mylawman) Follow us for regular legal updates. Follow us on Google News, Instagram, LinkedIn, Facebook & Twitter or join our whats app group .You can also subscribe for our Newsletter for Email Updates.

For More Legal Articles, Click Here