SANJAY KISHAN KAUL, J.

1. To cease smoking is the easiest thing I ever did, I ought to know because I have done it a thousand times, said Mark Twain. Smoking is a habit which has permeated ages its harmful effects well-known. It is a habit most difficult to give up but the consequences are so damaging not only to the person indulging in it but to other people in and around him that it has formed a part of a larger debate worldwide leading to passing of necessary legislations to discourage it. The strength to give it up, however, often comes from within rather than without in the form of any legislations.

2. The subject itself has bred controversies in different forms. The impact of smoking by way of representation in films and media has formed the basis of two erudite judgements of my brother Judges who have, however, agreed to disagree on a crucial aspect of it without there being any disagreement on the harmful effects of it. It is this disagreement which has resulted in the present reference.

3. It must be taken note of at the inception itself that the two judgements to the extent they agree really do not call for any further comments. There is no dispute about the authority of the Parliament insofar as its legislative competence is concerned to enact The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as the said Act). It is, however, the Rules framed thereunder in exercise of the powers conferred under the said Act which have given rise to this reference. The Rules have also had a chequered history from a more stringent stipulation to a more moderate one ostensibly on the basis of views expressed against the Rules made as impinging on the freedom of the media and the press. The historical perspective which gave rise to the said Act can be deciphered from the preamble itself which is reproduced hereinunder: An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. WHEREAS, the Resolution passed by the 39th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 1986 urged the member States of WHO which have not yet done so to implement the measures to ensure that effective protection i provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco; AND WHEREAS, the 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990, reiterated the concerns expressed in the Resolution passed in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect advertising, promotion and sponsorship concerning tobacco; AND WHEREAS, it is considered expedient to enact a comprehensive law on tobacco in the public interest and to protect the public health; AND WHEREAS, it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution; AND WHEREAS, it is expedient to prohibit the advertisement of, and to provide for regulation of trade and commerce, production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto

4. A reading of the aforesaid Preamble shows that the said Act is not only a ch

Click Here to Read the rest of this document