Dinesh Singh Chauhan
It is axiomatic that tobacco smoking is hazardous to health. According to the World Health Organization, tobacco consumption is one of the leading causes of death, illness and impoverishment in the world and their statistics reveal that every year there are over 8 million deaths caused due to smoking. Out of these 8 million deaths, around 1.2 million deaths are attributed to passive smoking, i.e., deaths caused due to the exposure of non-smokers to second-hand smoke.
All forms of tobacco are harmful, and there is no safe level of exposure to tobacco. Cigarette smoking is the most common form of tobacco use worldwide. Other tobacco products include waterpipe tobacco, various smokeless tobacco products, cigars, cigarillos, roll-your-own tobacco, pipe tobacco, bidis and kreteks.
The prima facie observation that can be drawn from the aforesaid statistics is that the innocent bystanders, i.e., the non-smokers are paying the price for the actions of the smokers. Study has shown that passive smokers would typically have continine levels of about one percent of those found in active smokers. However, the greater the levels of exposure of non-smokers to environmental tobacco smoke, the higher the concentration of continine in their body. Thus, exposure to environmental tobacco smoke would inevitably lead to a slow but gradual build-up of nicotine and continine in the bloodstream of non-smokers. Given that passive smoking is characterized as involuntary smoking, it is literally nothing short of assault on non-smokers, and a fatal one at that, in light of the well-documented health hazards posed to non-smokers by high levels of nicotine and continine in their bloodstream.
This raises the question that when Article 21 of the Constitution of India provides that no one should be deprived of living a healthy life, then why should a non-smoker be subject to the various diseases associated with tobacco consumption just because they are present in a public place?
Smokers’ interest in self-determination is at odds with the State’s obligation to protect the life of every individual and provide them with a healthy life. Two important issues are raised: first; do we have the right to smoke as part of the right to life and second; to what extent States have an obligation to protect the life of each individual and to ensure a healthy life and access to health care. India is the second largest country in the world in terms of tobacco consumption and hence faces a large burden of tobacco-related mortality and disease.
In India, since 1975, it is mandatory to display a statutory health warning on all packages and advertisements of cigarettes because of the Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975 enacted by the Government of India. Further restrictions on tobacco trade were initiated along with efforts to bring forth a comprehensive legislation for tobacco control during the 1980s and 1990s. The Parliament of India passed the Cigarettes & Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2003 in April 2003. This Bill became an Act on 18 May 2003. Rules were formulated and enforced from May 01, 2004. The Act is applicable to all products containing tobacco in any form, and extends to the whole of India.
The key provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are as follows;
* Prohibition of smoking in public places (including indoor workplaces). This has been implemented from 2nd October 2008 in the whole of India.
* Prohibition of advertisement, direct and indirect (point-of-sale advertising is permitted), sponsorship and promotion of tobacco products.
* Prohibition of sales to minors (tobacco products cannot be sold to children less than 18 years of age and cannot be sold within a radius of 100 yards of any educational institutions).
* Regulation of health warning in tobacco products packs. English and one more Indian language to be used for health warnings on tobacco packs. Pictorial health warnings also to be included.
* Regulation and testing of tar and nicotine contents of tobacco products and declaring on tobacco products packages.
Constitutional provisions vis-à-vis Environmental Protection
The Directive Principles of State Policy and the Chapter on Fundamental Duties explicitly enunciate the national commitment to protect and improve the environment. “It is now well settled Judicial principle that right to pollution free environment is the fundamental right and human right of a citizen. The Supreme Court in its Judicial pronouncements held that the “precautionary principle” and “polluter pay principle” is law of land.
Before the 42nd Amendment, the word ‘environment’ was not mentioned in the Constitution of India. By this Amendment, Article 48-A was added in the Directive Principles of State Policy and by Article 51-A, a new provision was inserted in the form of Fundamental Duty. According to Article 48-A “the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.
As per the sub-clause (g) of Art. 51-A, “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures”.
The protection of environment is not only a duty of the State under Article 48-A, but the citizens of India are also duty bound to protect the environment under Article 51-A (g) of the Constitution of India. Originally Fundamental Duty incorporated in the Constitution of India was not directly enforceable. However, with the passage of time and through Judicial activism, necessary stimulus was provided to achieve the objective behind the incorporation of Fundamental Duty in the Constitution of India for the protection of environment.
Part III of the Constitution of India deals with Fundamental Rights. Article 21 of the Constitution of India deals with Right to Life. This right would be meaningless if there is no healthy environment for the citizens to live in. The Right to Live in pollution- free environment is a part of Fundamental Right to life under Article 21 of the Constitution of India.
Does a person have the right to shorten their own life in order to make it better and to shorten it, i.e. if this is a means or a necessary consequence to make it a better life overall ? This implies that a person has the right to live and die in particular, by his/her own convictions as to the life that would be best for him/her. But, there is a sense of something in each of us that is greater than any of us, something that makes human life more than just an exchange of costs for benefits, more than a simple job or a trip to the mall. A sense of value within us that claims us – a value that we must respect. Life also confers advantages and disadvantages on people other than the person who lives it. Does a person have the right to deprive his/her children of a parent, simply because life is not worth enough for him/her. Emanuel Kant is right to say that exchanging one’s person for benefit or relief from harm depreciates the value of the person, respect for which is the criterion of morality.
Given that passive smoking is characterized as involuntary smoking, it is literally nothing short of assault on non-smokers, and a fatal one at that, in light of the well-documented health hazards posed to non-smokers by high levels of nicotine and continine in their bloodstream. Therefore, smoking is evil.
(The author is Advocate J&K High Court of Judicature, Jammu.)
Dinesh Singh Chauhan