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2016 Supreme(J&K) 583
IN THE HIGH COURT OF JAMMU AND KASHMIR
N. Paul Vasanthakumar, Ali Mohammad Magrey, JJ.
SYED KHURSHID AHMAD (DR.) - Appellant
Vs.
UNION OF INDIA - Respondent
PIL No. 08 of 2016 and MP No. 01 of 2016
Decided On : 24-05-2016
Mr. R.A. Jan, Sr. Advocate with Ms. Sushma Sharma, Advocate and Ajay Aggarwal, Advocate, Mr. D.C. Raina, Advocate General with Mr. H. Aman Ali, GA, Mr. S.A. Makroo, ASGI, Mr. Syed Musaib, Advocates.
Urgency in enforcing rules for public health improvement and the permissibility of filing public interest litigation without prior representation in exceptional cases.
Headnote:
Public Interest Litigation - Smoking - Cigarettes and other Tobacco Products (Packaging and Labeling) (Amendment) Rules, 2014 - Act Section List: Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 - Summary: The court addressed the urgency of enforcing the rules mandating 85% of the package area to display pictorial/textual health warnings on tobacco products. The judgment emphasized the need for strict implementation to ensure public health and directed the respondents to ensure compliance with the rules and ban the sale of non-compliant tobacco products.
Fact of the Case:
The petitioner, a professor with expertise in Microbiology, filed a public interest litigation seeking enforcement of Cigarettes and other Tobacco Products (Packaging and Labeling) (Amendment) Rules, 2014 to curb smoking and ensure public health.
Finding of the Court:
The court allowed the writ petition, directing the respondents to ensure implementation of the rules and ban the sale of non-compliant tobacco products, emphasizing the urgency of enforcing the rules for public health improvement.
Issues: The issues involved the urgency of enforcing the rules mandating health warnings on tobacco products and the maintainability of the writ petition without prior representation to the concerned authority.
Ratio Decidendi: The court held that in urgent cases, public interest litigation can be allowed to be filed without approaching the concerned authority if a copy of the writ petition is served on the counsel representing the authority concerned.
Final Decision: The writ petition was allowed, and the respondents were directed to ensure implementation of the Cigarettes and other Tobacco products (Packaging and Labeling) (Amendment) Rules, 2014 and ban the sale of non-compliant tobacco products.
N. Paul Vasanthakumar, J.
This public interest litigation is filed by the petitioner, who is a professor in SKTMS-Medical College, Srinagar with expertise in the field of Microbiology. He believes that smoking is the unnecessary menace in the society and has to be curbed by every possible method. In this cast' the petitioner is seeking indulgence of this Court for issuing directions, directing the respondents to ensure implementation of Cigarettes and other Tobacco Products (Packaging and Labeling) (Amendment) Rules, 2014 in letter and spirit and for direction to ban sale of cigarettes and other tobacco products not having 85% principal space covered with pictorial and cover textual health warnings. As per the petitioner, the Global Adult Tobacco Survey-India (GATS-2010) conducted in the age group of 15-years and above over 35% of the adult population consumes tobacco in some form or the other and majority of them are illiterate or semi-literate. Young persons in India in the age group of 13-15 years consume tobacco as per the survey of Global Youth Tobacco Survey, 2009. Considering the dangers of tobacco use, the Act called the Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 was enacted for the purpose to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to implement improvement of public health provided under Article 47 of the Constitution of India. For implementing the said Act the Government vide GSR No. 727, dated 15.10.2014 notified the Cigarettes and other Tobacco products (Packaging and Labeling) (Amendment) Rules, 2014 with effect from 01.04.2015 and the said rules mandated that 85% of the principal display area of each tobacco product should cover pictorial/textual health warning.
A Committee on Subordinate Legislation 16th Lok Sabha on examination of the Cigarettes and other Tobacco products (Packaging and Labeling) (Amendment) Rules, 2014, submitted its interim report on 18.03.2015 recommending to keep in abeyance the implementation of the Rules of 2014 till the Committee finalize the examination of the subject and present its report. Consequently the Central Government issued a corrigendum, GSR No. 228(E), dated 26.03.2015 and kept in abeyance the implementation of 2014 Rules. In supersession of the said corrigendum, another notification was issued in on 28.09.2015, giving effect to the date of enforcement of the Rules with effect from 01.04.2016. According to the said Rules, specified health warning shall cover at least 85% of the principal display area of the package of which 60% shall cover pictorial health warning and 25% shall cover textual health warning and shall be positioned on the top edge of the package.
2. According to the petitioner, in spite of the said amendment, the cigarette packets without such pictorial and cover textual health warnings are sold bearing manufacturing date beyond 01.04.2016. The learned counsel also showed some of the cigarette packets manufactured in April/May, 201.6 without 85% of space occupying the pictorial and cover textual health warning and hence the petition was filed with the above said prayer.
3. Mr. D.C. Raina, the learned Advocate General, raised a preliminary objection, stating that before filing the writ petition the petitioner has not sent any representation before the respondents and as per the Public Interest Litigation Rules framed by this Court, particularly Rule 24(7), before filing a Public Interest Litigation, the petitioner must send a representation to the concerned authority for taking remedial action.
4. In answer to the said submission the learned counsel appearing for the petitioner submits that in the very same rule 24(7) of the Public Interest Litigation Rules, it is stated that in urgent cases the petition can be allowed to be filed without any such representation by giving prior notice of filing o
