THE Supreme Court has refused to stay the Central government’s
notification imposing a ban on smoking in public places from October 2.
A bench headed by Justice B N Agarwal, while refusing to stay the notification dated May 30, 2008, also transferred the four petitions, including one each filed by the ITC and the Indian Hotels Association, against it in the Delhi High Court.
“We are of the view that it is not a fit case for grant of interim relief. The prayer staying implementation of prohibition of smoking in public places is rejected...let transfer cases be heard on November 18”, court said. The court also clarified that “no court in the country shall pass any order in derogation of this order.”
The Centre’s plea seeking permission to implement a ban on smoking in public places from October 2—the birth anniversary of Mahatma Gandhi—was part of an application seeking transfer of all the petitions, challenging the ban on smoking in private offices, pending before various high courts. Additional Solicitor Generals Gopal Subramanium and Mohan Prasaran, on behalf of the centre, sought stay on Madras high court order. The high court, in its interim order, had put on hold the centre’s law banning smoking in public places.
The people would suffer immensely and an irreparable loss and injury would be caused in case the notification was not implemented,said government’s law officer.
“The Act would not only discourage smoking in public places but would curtail passive smoking, which is the cause of lung cancer...around one billion deaths are reported every year due to smoking,” said centre’s law officers.
Supporting him, Indra Jaisingh, appearing for health organisations, said that the petitioners should comply with the ban as such rules were being followed all over the world in public interest.
However, the tobacco manufacturers and hoteliers earlier strongly opposed the notification saying such a ban on smoking at workplace was unjustified as it would include private offices.
Stating that “the Rules go way beyond the Act,” senior counsel Harish Salve, appearing for ITC, said that the hotels were already complying with the earlier rules that made it mandatory for the hotels, having a seating capacity of 30 or more, should have separate smoking zones.
While partially supporting the ban, Salve said that the petitioners don’t have any objection to such ban but the same should be applied discreetly.
They alleged that the notification made no distinction between private space and public space and the “Inspector Raj” is what that may create the problem.
However, he objected to the enforcement of such ban in private offices like that of lawyers, architects, private clinics, etc and the imposition of fine on persons in charge of these offices.
Pointing out that the present Rules amounted to “Inspector Raj,” Salve said that now the hotels and restaurants cannot have any service in the smoking area. “Such place without any service can’t function as a restaurant. No ashtray (can be provided) or a candle can be lit in a restaurant,” he added.
When the court pointed out that why it took petitioners so much time to approach the court against the ban, Salve said that the petitioners had made various representations to the government and had received a reply only on September 22.
“We were trying to evolve a method by which we are able to resolve the problem rather than fighting in court,” The ITC counsel said.
Telling the court about the places where such a ban would be imposed, he said that not only work places, shopping malls, cinema halls, airports, hotels and restaurants—which have public access—will have to abide by the notification but a public place would also include open space surrounding such premises such as refreshment rooms, discotheques, canteen etc.
It also says that smoking areas or spaces should be used only for the purpose of smoking and that too, at the entrance or exits and no other service shall be allowed. The notification also stipulates that the owner, proprietor, manager, supervisor or incharge of the affairs of a public place shall ensure that no person smokes in the public place and no ashtrays, match boxes, lighters or any other thing designed to facilitate smoking should be kept.
Besides, if the owner or any incharge or authorised officer of a public place fails to act on the report of such violation, he shall be liable to pay fine.
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