Day 2 started with arguments by the Counsel for the Tobacco Institute of India (and ITC).
The thrust of Day 2’s arguments by the Petitioners was on highlighting how the 2014 amendment to the 2008 Packaging and Labelling rules was an act of excessive delegated legislation. He referred to Tobacco Board Act, 1975 and, the now repealed Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975. The counsel made a submission that they were mainly aggrieved by the rules and therefore, they would focus mostly on pointing out the lack of constitutionality of the rules and the fact that it was an act of delegated legislation rather than focusing on the constitutionality of the act per se.’
The Learned Judge, B.S Patil asked the Counsel to point out specific instances where he felt the act too, suffered from the vice of unconstitutionality.
Arguments from The Tobacco Board Act, 1975:
The petitioner argued that the development of the tobacco industry was the stated object of the act by the Union. Citing Section 8 of the Tobacco Board Act the Counsel said that the sole aim of the act was, as a matter of fact, to promote, by such measures as it thinks fit, the development under the control of the Central Government of the tobacco industry. The Counsel argued that section 10 and 10A of the act, too, state regulation of production and disposal of Virginia Tobacco. They argued that it does not prohibit, but regulates the production of tobacco in the country. They also submitted that the Packaging and Labelling Rules, 2008 although rules under a later act, could not completely run counter or undermine the objective of the Tobacco Board Act, 1975.
Arguments under Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975:
The Petitioner argued that even though this act was repealed by COTPA, 2003, the basic framework of COTPA relies on this earlier legislation. It was argued that the architecture of this act has been followed through in COTPA. Both the act provides certain restrictions on the Tobacco industry. But it is to be answered that what is the least and the most restriction that can be applied on the industry without restricting Article 19 (1)(g) and Article 19(1)(a).
This 1975 act, the counsel argued, also defined the manner in which the specified warning on the cigarette packets should be made. And the words such as ‘legible, prominent and conspicuous’ have been carried forward from this act, now repealed, to COTPA. The entire meaning of these words is that the text should be readable with a naked eye and without a microscope. This act had no mention of pictorial warning, but only of the textual warning. The petitioner raised a question as to what has changed between 1975 and now that 3 mm of the text size is not enough.
Arguments under COTPA:
The counsel argued that while cigarettes had implications on one’s health, he likened the same to other food products being harmful to health- such as excess sugar and cheese. However, it was argued that as citizens of India, everyone has a fundamental right to entertain themselves, either with a cigarette or with alcohol. The right to personal entertainment and public health has, therefore, to be balanced.
The petitioners argued that the statement of objectives mentions the number of deaths and loss to exchequer but it is still a legislation to prohibit advertising of the product and not the product. It was argued that Section 4, 5 and 6 of COTPA talk about prohibition of smoking in a public place, advertisement, and sale to certain sections of the society, but Section 7 only talks about a restriction on trade and commerce. The pictorial warning arrives first after the 2007 amendment of Section 7. Earlier, it mentioned paintings, which qualified a textual image as a warning.
In fact, this section, before the 2007 amendment, the counsel submitted, mentioned specified warnings including a pictorial depiction of skull and crossbones and such other warning as may be prescribed. This was much debated and after evaluation, that smoking a cigarette is not as injurious as poison and high voltage areas, which actually carry this symbol, it was amended.
The petitioners’ counsel admitted that though a reading of some of the sections in the COTPA [section 9 and 10, and to an extent, Section 8 read with section 3(o)] seemed to suggest that they were only prescribed in the context of textual and not pictorial warning. Section 9 and 10 of COTPA defined the size and height of the warning. The same, it was argued could only be for text and figures, which is numbers. But it cannot be defined for pictures. However, he agreed with the Judge’s interpretation that under the COTPA that a plain reading of section 8 allowed for pictorial warnings to be prescribed.
Thereafter, the petitioners argued that though Section 7 of the COTPA allows for a pictorial warning, it should be sufficient to adhere to making the warning legible, prominent and conspicuous. As long as the warning fulfills this criterion prescribed under the act, the power of delegated legislation ends there. It does not have the right to prescribe an 85% health warning as the 2014 rules were doing.
Additionally, since the pack warnings constituted forced speech, it had a duty to be 100% accurate in the information it was conveying. The 2014 amendments required the cigarette pack to carry warnings such as ‘smoking causes throat cancer’. The Petitioners argued against this. They pointed out that saying smoking is injurious to health is an element of association. But saying the smoking causes throat cancer is a statement of causality. Smoking, they submitted may aggravate cancer or any other health hazard. But to say that it causes cancer is patently wrong.
Justice Nagarathna, at this point of time asked the counsel a question- that is what in the opinion of the learned counsel was the reasonable percentage to be prescribed on the pack so that there could be a balance between the public health aspect as well as the rights of the petitioners under Article 19(1)(a) and 19(1)(g) and so as to ensure uniformity in pack warnings.
The counsel responded by saying that the only requirement was that the pack warning should be legible, prominent and conspicuous as per the provisions of the COTPA Act. Therefore, there is no need to necessarily define ‘legible, prominent and conspicuous’ only in terms of a percentage. The rules too should only prescribe basic minimum criteria for making the warnings legible, prominent and conspicuous. To prescribe an 85% health warnings was going beyond the legislative mandate and is, therefore, an act of excessive delegated legislation and therefore deserved to be struck down.
Finally, he argued that the rules require that the 85% warning should be from the top end corner of the box and that the warning should not be disfigured when sealed or open was arbitrary as it was impossible for it to not be disfigured while opening the box due to the size of the image.