To Disclosures In vs Union Of India

Arindam Sinha, J

Mr. Mitra, learned senior advocate moves the petition, which contains challenge to Ordinance dated 18th September, 2019.

He brings to attention four dates. On 21st May, 2003 Framework Convention on Tobacco Control (FCTC), was adopted by members of World Health Organization (WHO). The treaty was ratified by India in 2004. Same came into operation on 27th February, 2005. Second date is 18th October, 2014, when conference of parties, established under article 23 of FCTC, took decision as referred in impugned ordinance. Third date or dates are in relation to period between October, 2014 and September, 2019. In this period, 21 Parliamentary sessions were held.

Last dates are 26th July, 2019 and 11th December, 2019, being period in which Parliament is not and will not be in session. Date of impugned ordinance has already been recorded.

On query from Court regarding whether there was discussion in Parliament during the period, in which 21 sessions were held, he refers to disclosures in AST 40 of 2019 (Plume Vapour Private Limited & Anr. Vs. Union of India). Proceedings happened in Parliament between 7th September, 2012 (in Lok Sabha as well as Rajya Sabha relating to e-cigarettes) and 26th July, 2019 have been disclosed. From answers given on behalf of the Government following appear :-

a) The Government is aware of marketing of e-cigarettes and their growing popularity across the country.

b) On 3rd April, 2018 the Government said, matter regarding regulating including banning, inter alia, device such as Electronic Nicotine Delivery System (ENDS) is under consideration of Ministry of Health and Family Welfare.

c) On 27th July, 2018 unstarred question 1743 had answer given to include statement that available literature suggests, ENDS contains nicotine, which is the same addictive component of tobacco products.

d) Answer given in Rajya Sabha to unstarred question 893, answered on 18th December, 2018, contains statement, Government of India has issued advisory to all States/Union Territories to ensure ENDS are not sold.

e) As on 21st December, 2018 the Government said no decision has been taken on how to regulate ENDS.

f) Answer given in Lok Sabha to unstarred question 2826 (H), answered on 10th July, 2019, includes statement of the Government, made on its consideration that health is a State subject.

Also to query from Court Mr. Mitra submits, the above is in public domain. No other information is available therein regarding anything else to be considered as reason for immediate action.

Petitioner is a manufacturer of ENDS as well Electronic Non-Nicotine Delivery System (ENNDS). Both have been banned by impugned ordinance. His clients' fundamental right guaranteed under article 19(1)(g) in the Constitution of India stand violated. He relies on judgement of Supreme Court in Ramlila Maidan Incident, In Re reported in (2012) 5 SCC 1, paragraphs 32 to 35 and 286.2. He submits, whether the ban is a restriction, in effect amounting to total prohibition, may be a question, which needs determination but even if taken to be a restriction, at this stage, standard for judging reasonability of restriction or restriction amounting to prohibition remains the same. Excepting that, a total prohibition must also satisfy the test that a lesser alternative would be inadequate. It must stand scrutiny of judicial review. It cannot be arbitrary or excessive. This is in context of alternative available to Government of India, being a party to FCTC, of prohibiting or regulating e-cigarettes, as appearing from 2nd recital in impugned ordinance.

He has another contention. E-cigarettes are included in clause (n) of definitions section 3, in Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. He relies on that part of the definition reproduced below :-

"3(n)...or otherwise with the aid of a pipe, wrapper or any other instruments;"

He submits, thereby the definition includes e-cigarettes, which came after commencement of the Act. For regulation of use of e-cigarettes, including it in the schedule was all that was required. He submits, ENDS causes consumption of nicotine by the user. This nicotine is an end product of tobacco. He relies on judgment of Supreme Court in

Collector of Central Excise, New Delhi vs. Ballarpur Industries Ltd. reported in (1989) 4 SCC 566, paragraphs 14 and 15, for interpretation of raw material to include end product, in which it is not present.

Lastly, he relies on judgment of Supreme Court in Godwat Pan Masala Products I.P. Ltd. Vs. Union of India reported in (2004) 7 SCC 68, paragraph 53 on res extra commercium. He submits, this imposed illegality on business carried on by his client, on treating it as res extra commercium, has to be by legislative policy arising out of an Act of Legislature and not by mere notification on Executive Order. He reiterates reference to proceedings in both Houses of Parliament in the period upto last date of ended session.

Respondents will be heard tomorrow.