Author : Diya Bijoy, Student at Mar Gregorios College of Law,Nalanchira,Trivandrum.
Smoking has been practiced among Indians since the early BCs. Mainly cannabis was smoked during those times. Tobacco was introduced in India in the 17th century and its consumption merged with local smoking practices that existed in India. There are about 120 million smokers in India alone. More than 1 million Indians die every year due to tobacco related health issues such as cancer and heart disorder. According to WHO about 12% of world’s smokers are Indians. In India smokers include men, women and children as young as 13 years. Smoking affects the health of not just smokers but also that of nonsmokers who are constantly exposed to the smokers. With the aim to protect the health of nonsmokers and to reduce the consumption of tobacco “Cigarettes and Other Tobacco Products Act, 2003” was enacted by the Government of India.
MURLI S DEORA V UNION OF INDIA
Before the commencement of COTPA the Supreme court declared the judgement in the case Murli S Deora V Union Of India prohibiting smoking in public places. Murli S Deora filed a Public Interest Litigation before the Supreme Court under Art 21(Right to life and personal liberty) of the Indian Constitution. The concerned issues were:
- Whether smoking in public places deprives the right to life a non-smoker under Art 21 of the Constitution of India?
- Whether smoking has to be banned in public places?
The court observed that smoking adds to air pollution and there is no need for nonsmokers to be the victims of this pollution
WHAT IS COTPA?
The Cigarettes and Other Tobacco Products(Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act was enacted in 2003. The Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975 was thus repealed. The Act was enacted in response to the resolutions passed by the World Health Organization in 1986 and 1991 to take actions to ensure the protection of nonsmokers from the involuntary exposure to tobacco. As suggested in the name the Act places restriction on the advertisement, production, distribution etc., of tobacco products. The provisions under this act also provides for the prohibition of smoking in public places.
PROHIBITIONS AND RESTRICTIONS
COTPA provides for the prohibition of smoking in public places. Sec 4 of COTPA lays down the provision for the prohibition of smoking in public places. Whoever violates Sec 4 of the Act shall be punished as per sec 21 of the act, which is a punishment that may extend up to a fine of Rs200 or the punishment can be compounded and tried summarily, as per the provisions given under the Code of criminal procedure 1973.
Sec 5 of the Act prohibits the advertisement of cigarettes and other tobacco products through media and prohibits people from taking part in such advertisements directly or indirectly. Sec 6 of the Act prohibits the sale of cigarettes or other tobacco products to minors and in areas within one hundred yards radius of any educational institution. Whoever violates Sec 5 shall be punished with the forfeiture of advertisement and advertising material by the government, as provided by Sec 23 and whoever violates Sec 6 shall be punished as per Sec 24 with a penalty that may extend up to Rs200 or the punishment can be compounded and tried summarily.
Sec 7 places restrictions on supply, produce, distribution, trade and commerce of cigarettes and other tobacco products. Sec 7 prohibits persons from the produce, supply, or distribution of cigarettes and other tobacco products which does not bear specified warning. It also prohibits persons from entering into trade and commerce, and import and export of cigarettes and other tobacco products that does not bear specified warning. Sec 7 also demands the declaration of nicotine and tar content in each cigarette on the package.
The Act specifies the manner and language in which the warning shall be expressed, the size of the letters and figures used for writing the warning, usage of pictorial warning etc., in subsequent sections.
The Act answers important questions such as ‘who has the authority to conduct searches regarding tobacco products?’, ‘what procedure should be followed while conducting search?’ etc. and lays down the punishments for other tobacco related offences.
COTPA has not been amended since it was enacted. However, the Union Ministry of Health is considering to increase the legal age for smoking tobacco from 18 to 21 by amending COTPA rules. Besides increasing the legal age, the Ministry is also considering the raising of fine for those who violate the rules.
PROHIBITION OF E-CIGARETTES ACT 2019
E-cigarettes are electronic devices that heat a substance, with or without nicotine and flavors to create an aerosol for inhalation which a user can inhale like the action of smoking. These include all forms of Electronic Nicotine Delivery Systems, Heat Not Burn products, e-Hookahs and the like devices. It is not yet established that e-cigarettes are safer than traditional cigarettes and harmful effects of e-cigarette use are now emerging across the world.
In 2019 The Prohibition Of E-cigarettes Act was passed in India. The Act prohibits the production, manufacture, export, import, transport, sale, distribution, storage and advertisement of e-cigarettes in India. The act also gives provisions as to the authorization of officers who can take action against activities relating to e-cigarettes, conducting of searches, seizures and attachments, punishment to the violators etc.
Sec 4 of the Act prohibits the production, manufacture, export, import, transport, sale, distribution, storage and advertisement (direct and indirect). Sec 7 of the Act provides that whoever violates Sec 4 shall be punished with an imprisonment for a term up to 1 year or fine which may extend up to 1 lakh rupees or both.
ANTI-TOBACCO WARNING DURING MOVIES
Anti-tobacco health warnings are displayed on the bottom of the screen when tobacco products are shown in movies or television shows. These warnings are displayed for a minimum duration of 30 seconds at the beginning and middle of a program. As of 2019 these warnings are mandatory.
According to Prakash Javadekar, the Minister of Information and Broadcasting, anti-tobacco warnings are to be made mandatory as provided by Cigarettes and other Tobacco products Rules 2004, which mentions that films and television programs displaying tobacco products or their usage should carry warnings for a minimum duration of 30 seconds at the beginning and the middle of the movie or program.
TOBACCO CONSUMPTION IN THE PRESENT CONTEXT OF COVID-19
Consumption of tobacco affects the functions of respiratory system adversely. Therefore, smokers will be vulnerable to respiratory infections and diseases. Regular tobacco consumption can also affect the functioning of lungs. It also reduces immunity. It is known that the Covid-19 disease primarily affects the functioning of lungs. This makes the tobacco consumers more prone to get infected by Covid-19. Tobacco consumption increases the possibility of a person getting infected with Covid-19. It also makes them more likely to die due to reduced immunity.
While smoking, fingers( which might be contaminated) comes in contact with mouth thus facilitating the spread of virus from hand to mouth. Sharing products like hookah etc., can facilitate the spread of Covid-19 from one person to another. Evidence from countries reporting Covid-19 fatalities has highlighted that the people with pre-existing non-communicable diseases (NCDs) are more susceptible to becoming severely ill with Covid-19. Tobacco, being one of the causes behind NCDs, indirectly puts the smokers at risk of being affected by Covid-19.
By passing several laws against tobacco consumption India could reduce the prevalence of smoking tobacco. The prevalence of smoking tobacco in India reduced from 19.4% in 2000 to 11.5% in 2005, according to a report published by World Health Organization in 2018. But India still has a significant percentage of tobacco users who use chewing tobacco. Even though the percentage of smokers has reduced, still there exists a significant percentage of smokers and other tobacco consumers in the country. Tobacco regulation laws are properly implemented in some parts of India and not in all parts of India. Most people are aware that the consumption of tobacco is harmful to health, all are not aware of how it affects health of smokers as well as nonsmokers. Educating people about the harmful effects of tobacco, like ‘ how does it affect health?’, ‘ what extent of damage does it cause in a regular smoker ?’ etc., should be done and tobacco regulation laws should be implemented properly in all parts of India to see a further reduction in the percentage of all sorts of tobacco consumers.
 AIR 2001 SCW 4505
 Simran, ‘Murli S Deora V Union Of India (AIR 2001 SCW 4505)’,(Conquering Law for Achievers and Winners, 15 May 2020)www.clawlegal.org/editorial/murli-s-deora-v-union-of-india-air-2001-scw-4505/ accessed18 October2020
 The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Bill, 2019.
 Saumya Sharma, Covid-19 update: Smokers more vulnerable to corona virus transmission, says Health Ministry (Hindustan Times, 29 July 2020) www.hindustantimes.com/health/covid-19-update-smokers-more-vulnerable-to-coronavirus-transmission-says-health-ministry/story-w7gde2W0IgD2Arfc8UX2wM.html accessed 18 October 2020