Karnataka HC strikes down rule on stringent tobacco pack warnings

Cigarette companies have partially won a legal battle against the Union government, as the Karnataka High Court declared as unconstitutional the Cigarette and other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014, which had enhanced to 85% the area of pictorial warning on the principal area of packages of cigarette and other tobacco products.

The court, however, rejected the challenge made to the similar Rules of 2008, and made it clear that the 2008 rules — which had prescribed that 40% of the specified pictorial warning be printed on the principal area of the packages — would be in force until the Union government frames a fresh rule or amends the 2008 rules afresh.

Differing views

Though the Bench came to an unanimous conclusion to strike down the 2014 rules, the judges differed in their views.

Justice Patil held that the Ministry of Health and Family Welfare unilaterally framed the Rules without concurrence of the other departments concerned, and this was a violation of the Article 77 (Conduct of Business of Government of India) and the Transaction of Business (ToB) rules framed under it as the subject of tobacco control and legislation was not attached to one department or Ministry.

The rules were notified, Justice Patil said, even before the Parliamentary Committee on sub-ordinate legislations was examining them. He pointed out that Ministry of Commerce had opposed 85% area for pictorial warning on the ground that it would not result in any benefit and wanted to restrict the pictorial warnings to 40% or 50% . And The Labour Ministry had opposed pictorial warning for the reason that it would harm the beedi industry, on which several poor families are depending upon for their livelihood.

But Justice Nagarathna held that the 2014 rules are not contrary to the ToB and the Article 77, and noted that the rules were notified in October 2015, giving effect to from April 1, 2016, due to an order passed by the Rajasthan High Court even as the Parliamentary Committee was examining the rules.

Both the judges observed that the Parliamentary Committee, in its final report submitted on March 15, 2016 had recommended restricting the area of pictorial warning to 50%. However, she declared that the rules are contrary to Article 19(1)(g) [right to practise any profession, or to carry on any occupation, trade or business] as they are “unreasonable” restrictions imposed “without application of mind or any basis.” Justice Patil did not express his opinion on Article 19(1)(g).

Condition for rotating pictorial warning on packages during specified period and bar on sell packages containing expired pictorial warning causes economic and financial losses though tobacco products inside the packages remain legally sellable, Justice Nagarathna held.

Referring to cautions and contents of warnings lime “smoking kills” or “tobacco kills”, “smoking causes cancer”, etc, she pointed out that no medical or scientific data or empirical research was conducted and data collected placed before the court in this regard.

Stating that the rulemaking authority need to prescribe such reasonable criteria or prescription in accordance with the law based on relevant materials, the Court also said that recommendations made by the Parliament Committee have to be given weight at the time of frame the rules afresh.

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