Day 7: Arguments before the Karnataka HC on validity of Health Warnings for Tobacco Product Packaging

September 2, 2016

Day 7 saw the continuation of arguments by the Counsel for the Tobacco Institute of India, focused on Article 21 and whether the 2014 Rules exceed its mandate as against the provisions of the parent Act, namely COTPA.


Arguments as to the scope of liberties guaranteed under Articles 19 and 21


The Counsel referred to the case of In Re Noise Pollution, (AIR 2005 SC 3136) to submit that ‘life and liberties’ are guaranteed such that they can be enjoyed within permissible limits. The Counsel pointed out, for instance, that the right to move freely under Article 19(1)(d) reflects certain liberties – Article 21 contains the residue of all liberties available to a citizen. The Counsel stated that while Section 4 of COTPA already bans public smoking, it does not impinge on anyone’s right to smoke and partake in permissible liberties.


The Counsel went on to argue that, if a particular product, namely tobacco, is not prohibited, a person is entitled under Article 21, to consume the product and entertain himself within the permissible limits. The State, on the basis of public interest, cannot coax a person into making a decision as to a health hazard, by displaying gruesome pictorial representations. A warning that is conspicuous, legible and prominent would be sufficient and be least restrictive. In support of this, the Counsel referred to the Global Adult Tobacco Survey (GATS), wherein 90% of adults continue to consume tobacco despite having seen the prescribed warning.


When asked by Justice Nagarathna about the intended effects of a 95% warning, the Counsel explained that there would be a thin line between causing to warn and to deter. Article 21 gives every citizen a right to prevent the government from substituting its own judgment in place of the public’s capacity to decide.


Justice B.S. Patil asked whether the consumption of tobacco and alcohol is a fundamental right, given that the public is deterred, and even prohibited, from consuming alcohol. To this, the Counsel replied, “Freedom of choice is my fundamental right.” That is, a person has a fundamental right to choose and consumed a product that is not banned, as it constitutes a “permissible pleasure.”


The judge voiced the concern that the choice could pertain to numerous undesirable things. The Counsel in turn replied that Article 21 guarantees precisely this freedom to consume an undesirable commodity – as long as it passes the muster of legality.


The Court then pointed out that the COTPA has been enacted to regulate trade and commerce in tobacco products, to which the Counsel replied that none of the provisions indicate the requirement that the overall consumption of tobacco must be brought down. It was stressed by the Counsel that Article 19(1)(a) couldn’t be pressed into service against the rights guaranteed under Article 21, and consequently, a citizens right to leisure.


In this regard, the Counsel also stated that a person can decline to read a publication or switch off a radio or T.V. set, and to trespass upon this right would constitute “ocular or visual aggression”. On being asked which countries have similar graphic warnings, the Counsel replied that there are 100 countries that do not have pictorial warnings – like the US, China and Brazil – as they are tobacco growing countries like India.


To substantiate his arguments, the Counsel relied upon Gretchen Stuart v. Paul Camnitz (US Court of Appeal decision No. 14-1150), where the court had to look into the constitutionality of regulations that required doctors to show, and describe to women considering abortion, the ultrasound and sonogram of the foetus, along with a description of its internal and external organs. The Court of Appeals held that even though the state may have an interest in the unborn child, the requirement constituted compelled speech, which would have the effect of convincing the woman to change her mind. The Counsel submitted that even though the mandated speech of the doctors would be factual, the real-time display of the foetus would promote the state’s pro-life stance and that too shortly before the time of making a decision, when the recipient is most vulnerable.


The Hon’ble justice B.S. Patil then asked the Counsel to elaborate on the state’s policy on tobacco, so that the Court could appreciate it in light of the domestic scenario. The Counsel replied that the state policy would be reflected through the Tobacco Board Act, and not just through COTPA.


The Counsel then referred to Suchitra Srivastava v. Chandigarh Administration [2009 (9) SCC 1], wherein a lady with mild mental retardation desired to go through with her pregnancy and have her baby. The Supreme Court upheld the woman’s reproductive choices and autonomy within the ambit of Article 21 to show how the Cort refused to take a decision for the woman. The application of a “substituted judgment test” would require the court to step into the shoes of a person who is conclusively shown to be incapable of making his own judgment. The counsel then emphasized that mandating 85% of the specified health warning constituted thought control and totalitarianism.


The Counsel then went on to cite Common Cause v. Union of India (W.P. No. 197 of 2004 & W.P. No. 302 of 2012). This decision concerned government advertisements put up through use of funds from the public exchequer to promote political leaders and parties. It was cited in support of the argument that advertisements should be fair and objective such that the content enables the recipients to differentiate between facts and analysis.


One of the arguments raised consequently by the Counsel, was that the statement ‘smoking causes cancer’ is factually unsubstantiated and therefore, the State cannot utilize a person’s property to propagate its message, which also happens to be factually incorrect.


The Counsel went on to cite a trial court decision from Scotland, Mctear vs Imperial Tobacco, [2005] Scots CSOH 69, which according to him is the only case that has judicially considered the question of whether smoking does indeed cause cancer. In this case, Mctear, a chain smoker, developed lung cancer and thereafter sued Imperial Tobacco for compensation. A large volume of evidence was produced before the court on the ill effects of smoking and tobacco. Experts were called upon to testify as well. Despite this, the Scottish court went on to hold that the petitioner, Mctear, had failed to prove conclusively whether smoking led to cancer. In other words, the causality of smoking and cancer was not established beyond doubt.


To this, the Court asked whether it was expected to give a finding on whether tobacco causes cancer, because it does not have the means to do so. The Counsel responded saying that the Court is not required to give a finding on whether medical evidence on the harm of tobacco is conclusive or not, the burden of proof must be on the Respondent State whenever a constitutional right is violated. Secondly, it was argued and re-emphasized that the State should come up with the least intrusive measure to regulate the sale of tobacco product especially when the medium being used to propagate a message is the private property of the petitioner.


Arguments as to the validity of the Subordinate Rules


One of the crucial arguments brought forth by the Counsel was that the delegated legislation is ultra vires the COTPA.


The Union in the objectives to the 2014 rules has stated that the impugned amendment was enacted under Sections 7(1), 8(2), 10 and 31 only. Since these are the only sections under which rules the rules are prescribed, the State has no power to enact rules that prescribe what a manufacture cannot say. Section 9(2) was read in this regard. Therefore, it was argued that the 2014 amendment which provided for 85% health warnings are ultra vires COTPA because rules could only be enacted under Section 7(1), 8(2) and Section 10 and 31 and the rules could not go beyond the mandates of these sections. Further, it was also argued that a restriction on the right of the manufactures to advertise on their packs was already restricted under Section 9(2) of the act. The rules, could not seek to make this restriction more onerous.


With regard to Section 7(4) as juxtaposed with Rule 3(1)(b) of the 2014 amendment , three submissions were made.


a) First, under Section 7(4) of COTPA, there is no power to delegate since the words ‘as may be prescribed’ is not there in section 7(4).


b) Further the proviso to rule 3(1)(b) provided that both panels of the cigarette pack are to carry the health warning. Since Section 7(4), on the other hand, provided that the health warning should be on “not less than on one of the largest panels”, the Counsel argued that the rule for 85% coverage on both side made the section to read “not less than both sides” and changes the import of the section.


c) Thirdly, it was pointed out by the Counsel that not abiding by the rules attracted a penalty under Section 20. The rules, by prescribing both panels to carry health warnings were making an artificial offense under section 20.


Therefore, in essence, the Counsel concluded for the day by reminding the court that a statute must be the sole repository of power for delegated legislations and therefore, any rule which goes beyond the 4 corners of the act must be struck down as being ultra vires.