The Supreme Court on Tuesday issued notice on Petitions challenging the Karnataka High Court judgment striking down the 2014 amendment rules that mandated pictorial health warnings to cover 85% of tobacco product packaging space.
The notice was issued by a Bench comprising Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud, which directed all such petitions to be listed in the first week of August.
The High Court had struck down the Cigarettes and Other Tobacco Products (Packaging and Labeling) Amendment Rules, 2014, which necessitated that the statutory health warning, to be printed on packages of cigarettes, pan masala, and other tobacco products, shall cover at least 85% of the principal display area, constituting an increase from the earlier mandate of 40%. The Rules required 60% of the space to be devoted towards the pictorial depiction of mouth, throat and lung cancer and 25% to textual health warning.
This increase had been struck down by the Court which opined that the Union health ministry does not have any jurisdictional power to make such rules. The Court had further observed that even if the health ministry enjoyed power to make such rules, they violated constitutional norms as it was an “unreasonable restriction” on the right to do business.
Contentions raised in the SLP
One of the Special Leave Petitions, filed by one Mr. Rahul Joshi now asserts that the two separate judgments delivered by Justice B.S. Patil and Justice B.V. Nagarathna of the High Court “cancel out each other”.
Besides alleging discrepancies in the opinion of the two Judges, he also avers that they erred in holding that Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) does not prohibit consumption of cigarettes and other tobacco products.
Notably, the SLP asserts that the High Court should not have found fault with the Centre’s failure to act upon a Parliamentary Committee Report which had favored shelving of the notified 85% pictorial warnings in favor of 50% pictorial warnings on both sides so as to ensure that the economic interests of the tobacco industry is not jeopardized.
This especially assumes significance in light of the recent judgment passed by a five-Judge Constitution Bench of the Supreme Court ruling that while placing reliance on Parliamentary Standing Committee Reports by Courts does not constitute a breach of Parliamentary privilege, it is ultimately for the Court in each case to determine the relevance of a report to the case at hand and the extent to which reliance can be placed upon it.
Mr. Joshi further submits that the High Court failed to recognize that tobacco companies are not ‘citizens’ to be accorded rights under Article 19 of the Constitution of India, demanding,  As such, the decision of the Court below to entertain arguments by tobacco companies over their non-existent fundamental rights under Article 19 is opposed to our Constitution and deserves to be set aside.”
He contends that there exists “extensive material on the record to show the effectiveness of pictorial warnings or to record the destructive potential of tobacco”. He goes on to demand that the pictorial warnings on tobacco products be made more realistic, asserting,
“The current set of images are, to repeat, very soft and benign in relation to what they purport to depict. There is an urgent need to ‘say the truth the way it is’ in relation to pictorial warnings on tobacco packs and the current images ought to be replaced with more truthful images that show the real agony of a tobacco victim. The Petitioner and his counsel have seen cases of maggots crawling on rotting facial tissue in tobacco victims and dozens of such unthinkable and unimaginable visuals in the bodies of tobacco victims. It is urgently necessary for the public to notice the same on tobacco packs, for their protection.”
Besides seeking a ban on the sale of loose cigarettes in the country, Mr. Joshi further points out that the Government of Rajasthan had lowered VAT on tobacco products in 2015, its justification being that the tax is still higher in comparison to other States such as Gujarat, Madhya Pradesh, Delhi, Uttar Pradesh, Haryana, Punjab, Bihar, Maharashtra, Karnataka, Andhra Pradesh and West Bengal. This, he asserted, was inconsistent with India’s obligations under the WHO Framework Convention on Tobacco Control (WHO FCTC), which notes that “raising taxes on tobacco is the most cost-effective measure for reducing tobacco use”.
He now demands that law be laid down in this regard, especially in light of the introduction of the Goods and Service Tax (GST), submitting, “A resolution of this branch of law by this Hon’ble Court would inform the General Goods and Services Tax Council about its own obligation to aid the Central Government to comply with the WHO FCTC by setting GST rates on tobacco products in a manner consistent with the treaty and not in derogation of it.”