#Debriefed: The Karnataka HC will decide the fate of health warnings on tobacco products

Last week, the Karnataka High Court reserved its judgment in a batch of petitions challenging a 2014 amendment to the laws governing health warnings on the packaging of tobacco products..A Bench of Justices BS Patil and BV Nagarathna will decide the fate of more than fifty petitions filed by individuals and organisations from across the country..In this edition of #Debriefed, we go into the details of the challenge..What is the challenge against?.In October 2014, the Ministry of Health and Family Welfare sought to amend the Cigarettes and other Tobacco Products (Packaging and Labelling) Rules, 2008..The major change brought about by the amendment was the introduction of a rule that 85% of the packaging of cigarettes and other tobacco products shall be covered by a health warning. 60% of this would be occupied by the pictorial warning and 25% by a textual warning. Previously, only 40% of the package was required to be covered by the health warning..The other changes included preventing tobacco companies from promoting the consumption of tobacco in any way..It is this amendment that the petitioners are challenging..Where did it all begin?.GR Venkatesh Murthy, a Bangalore-based lawyer, was the first to challenge the amendment, claiming that the new rule was violative of Articles 19(1)(a) and 21 of the Constitution. Subsequently, a number of petitions were filed in the Karnataka High Court, as well as in the high courts of Rajasthan, Bombay, Gujarat and Delhi..Why is this decision important?.The high courts have passed conflicting decisions on the issue. While the Rajasthan High Court had directed the immediate implementation of the 2014 amendment and even filed a suo motu contempt petition for the Centre’s failure to do so, the Karnataka High Court had, in December 2015, temporarily stayed the operation of the same..The latter order prompted NGO Health for Millions to prefer an SLP before the Supreme Court. A Bench of Justices PC Ghose and Amitava Roy refused to quash the stay, which the High Court would eventually vacate. In a related matter, the same SC Bench in May 2016 directed that the petitions filed in various parts of the country be dealt with by the Karnataka High Court..The decision is also likely to significantly affect the lives of many people, one way or the other. According to the Karnataka State Beedi Cigarette Traders Association, which is one of the petitioners, 45.7 million people in the country are dependent on the tobacco industry, and none of them were consulted before the rules were framed..On the other hand, the 85% rule was ostensibly imposed in order to align Indian laws with the provisions of the World Health Organisation’s Framework Convention on Tobacco Control (FCTC), of which India is a signatory..What are the laws involved? .Clause (b) of Article 11 of the FCTC states,.“…each unit packet and package of tobacco products and any outside packaging and labelling of such products also carry health warnings…These warnings and messages:.…should be 50% or more of the principal display areas but shall be no less than 30% of the principal display areas.”.The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 empowers the Centre to make laws regarding health warnings..Which lawyers appeared in the matters?.A host of senior counsel appeared for the various parties in the High Court. Sajan Poovayya argued for Tobacco Institute of India, S Vijaya Shankar appeared for the Federation of All India Farmer Associations, and KG Raghavan appeared for Karnataka State Beedi Cigarette Traders Association..On the other side, BV Acharya represented the impleading NGOs, while Assistant Solicitor General Krishna Dixit appeared for the Centre. Also involved were advocates Jayna Kothari, KV Dhananjay and Deepak Khosla..When the matters reached the Supreme Court, many seniors including Arvind Datar, Abhishek Manu Singhvi, Aryama Sundaram, CS Vaidyanathan, and Solicitor General Ranjit Kumar also appeared..What are the arguments?.One of the petitioners has claimed that the extremely graphic pictorial warnings are offensive to smokers and impinges on his fundamental right to privacy and his right to be informed as a consumer. His contention is that smokers are already aware of the risks involved with smoking and have taken an informed choice to do so. In this light, it is contended that the decision to impose the 85% rule is excessive..Moreover, it was argued that the textual warnings stating, ‘Smoking causes Cancer’ were misleading, as studies show that smoking is merely a “significant risk factor” and not a cause for throat cancer..The associations representing the tobacco farmers and the beedi industry fear that the new Rules will cause a marked decrease in tobacco consumption, and therefore adversely affect an already ailing tobacco industry..On the other hand, impleading NGOs like Health for Millions and The Consortium for Tobacco Free Karnataka are of the opinion that the new Rules are not violative of Articles 19 and 21 of the Constitution, as they qualify as reasonable restrictions to these provisions, given the fact that it involves a question of general public interest..It was further argued that when there is a clash between fundamental rights, the right which would benefit the public would assume precedence. Moreover, the Centre argued that policy making was not the domain of the judiciary, and hence cannot decide what percentage of the packaging should be covered by warnings..Another point made was that forty-four countries have implemented similar graphic health warnings and more than twenty countries have health warnings occupying more than 65% of the packaging..More smoke than fire?.At the end of the prolonged hearings, the case saw a brief moment of controversy when advocate Deepak Khosla, appearing for one of the petitioners from the Rajasthan High Court, was served with a contempt notice. This, after the Bench reportedly took exception to Khosla’s submissions in his written statements..Khosla had termed the Supreme Court’s orders in the case as “B orders” and alluded that the Karnataka High Court was a “safe haven for tobacco product manufacturing companies”.