A.R. Lakshmanan, C.J.
1. Society for Cancer in Oral-Cavity prevention through Education, P.S. Nagar, Hyderabad represented by its Managing Trustee Dr. B. Chandrakanth Rao has filed this writ petition as a Public Interest Litigation for issuance of a writ, order or direction particularly in the nature of writ of mandamus declaring the action on the part of the official respondents in not declaring the oral use of Paan Masaia, Gutka, Zarda and other tobacco related items as highly deleterious and dangerous to public health leading to cancer, as arbitrary, illegal, unjust and violative of the fundamental rights guaranteed to the citizens under Articles 14 and 21 of the Constitution of India apart from being violative of the Directive Principles of State Policy enshrined in Part IV of the Constitution of India, more particularly, Article 47 of the Constitution of India and for consequential directions to the respective Governments to discharge the constitutional duties obligated on them under Article 21 and prevent the manufacture, sale, advertisement and consumption of Paan Masla, Gutka, Zarda and allied tobacco products.
2. When the matter came up for admission on 26-4-2001, while admitting the writ petition, this Court ordered that respondents 7 and 8 who are dealing in the manufacture of paan parag etc., be impleaded as respondents. Keeping in view the importance of questions involved in the matter, a Division Bench of this Court by order dated 19-9-2001 referred the matter to a Larger Bench. The Division Bench also directed that pendency of the writ petition should not stand in the way of the State Government or Central Government to take appropriate action in the matter.
3. When the matter came up for final hearing before, us, the learned Additional Advocate-General placed before us the Notification issued by the Health, Medical and Family Welfare (LI) Department of Government of Andhra Pradesh in G.O. Ms. No.44, dated 19-2-2002 prohibiting the sale of Pan Masala under any brand name with an emblem of 'Gutka' which contains tobacco in the entire State of Andhra Pradesh with immediate effect as also the notification issued in G.O.Ms.No.55, dated 27-2-2002 of the same Department prohibiting the sale of all brands of pan masala (containing tobacco) and chewing tobacco/zarda/Khaini under any brand name in the interest of public health. The said notifications were issued by the Director of the Institution of Preventive Medicine, Public Health Labs and Food (Health) Administration as Food (Health) Authority for the State of Andhra Pradesh in exercise of the powers conferred under Clause (iv) of Section 7 of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954). The notification also contains statement that the State Government has also requested the Ministry of Health and Family Welfare, Government of India, in their D.O. Lr.No.58235/CT.III/l/2000-l dated 29-4-2001 to impose ban on production, sale and consumption of 'Gutka' to give effect to the resolution dated 23-4-2001 passed by the State Cabinet. The Government of India has not so far issued any notification imposing ban on production, sale and consumption of 'Gutka' in the State.
4. Since this matter relates to larger public interest, a request was made through the learned Standing Counsel for Central Government requesting the learned Attorney General to appear before this Court for further hearing of the matter and the Registry was also directed to issue notice to the learned Attorney-General. Pursuant to the same, the learned Attorney General Mr. Soli J., Sorabjee has appeared before us on 12-4-2002.
5. We have heard the learned senior Counsel for the petitioner Sri S. Ramachandra Rao, Sri Soli J. Sorabjee, learned Attorney-General of India, Sri Ramesh Ranganatham, learned Additional Advocate-General, Sri C. V. Ramulu, learned senior Central Government Standing Counsel, Sri V.T.M. Prasadlearned Counsel for respondent No.4, Sri S. Niranjan Reddy, learned Counsel for respondent No.5 and Sri S. Ravi, learned Counsel for respondents 7 and 8.
6. Briefly noted, the facts leading to the filing of the writ petition are as follows:
7. The petitioner-society claims that it is a registered society established in the year 1995 consisting of eminent doctors and dental surgeons. Since the formation of the society, it is working hard for the eradication of oral cancer both by cure and prevention. The society has been taking steps to prevent the increasing incidence of oral cancer more particularly by the use of products consumed orally such as Paan Masala, Gutka, Zarda etc. It has contducted over 50 free dental/oral cancer detection camps, associated with the State Government in the Janama Bhoomi Programme to bring awareness among the public about the deleterious effects of the use of tobacco products and organised 12 Dental Oral Cancer Prevention Camps in collaboration with Red Cross etc. According to the petitioner, a broad based survey revealed that the consumption of Gutka, Plaan Masala and Zarda are directly connected to the incidence of oral cancer.
The efforts of the petitioner received appreciation from various quarters including the international community of scientists.
8. According to the petitioner, over three million people are dying every year due to tobacco related diseases. Nearly 47% of people in the country aged 15 years and above are consumers of tobacco in one form or the other and half of the victims are dying at a prime age. This brings not only a huge human tragedy greater than a natural calamity but is also contribution to a drain on the human resources component of the nation's wealth. By the year 2002, 10% of the world's population will fall prey to the evil effects of tobacco. While smoking constitutes 12% for cigarettes and beedies, the consumption of tobacco like Gutka, paan masala, zarda was about 20%. Therefore, a concerted strategy and a well co-ordinated effort is required to combat the menace and to make the world tobacco free and a healthier place to live in.
9. Pan masala is a commercial preparation containing area nut, slaked lime, catechu and condiments: many brands of this product contain tobacco. Tobacco use influences the natural history of oral lichen planus. Annually 6,30,000 deaths are taking place because of the use of tobacco products like Gutka. Due to consumption of gutka, the consumers are afflicted with white patches (Leukoplakia) and it has been found by the World Health Organisation (WHO) that it was due to consumption of tobacco and white patches are transferable through tobacco and according to clinical analysis and research, it is established that it will lead to oral cancer. Tobacco is the most important catiologic factor for leukoplakia. The various medical statistical reports including those of WHO conclusively establish the gravity of the problem of oral cancer being caused by the consumption of gutkha, pan masala and zarda. The oral submucous fibrosis that results through constant use of Gutkha is a high-risk precarious condition that predominantly occurs amongst Indians and there is convincing epidemiological evidence implicating areca nut as a causative factor in the pathogenesis of this condition. Sumbucous fibrosis affects all parts of the oral mucosa and occurs in both sexes over a wide age range. Submucous fibrosis is a chronic mucosal condition affecting any part of the oral mucosa, characterised by mucosal rigidity of varying intensity due to fibroelastic transformation of the juxtaepithelial connective tissue layer. This disease is increasing rapidly in India.
10. The contents of Gutkha include perfumed chemicals and they have a vicious effect over the entire body and the nicotine in the gutkha affects the blood circulation and nervous system. In view of the presence of nicotine and alkalic contents in the gutkha, the consumer becomes addicted to it and almost drowsy throughout. It is more dangerous than consumption of alcohol and smoking. Various types of diseases that are established as owing to gutkha consumption are lung cancer, oral cancer, intestinal cancer, voice box cancer, stomach cancer, etc.
11. Out of ignorance or otherwise, the society does not attach the same deterrent to oral consumption of tobacco as cigarette smoking. Due to high profile publicity attached to the product by the manufacturers, people and habituated to consumption of gutkha. The Government, which is duty bound to protect the health of the citizens and inspite of being aware of the deleterious affects of tobacco, is not banning the manufacture, sale, advertisement and consumption of gutkha which contains tobacco and the same is violative of Articles 14 and 21 of the Constitution of India. The action of the respondents in permitting the sale of toxic products and making it universally available, seriously exposes the life and liberty of the citizens and no civilised society permit its majority to be helplessly placed at the threshold of the commercial interests of the myopic. By the inaction of the State in not banning products like gutkha, the State is depriving the life and personal liberty of its citizens guaranteed under Article 21 of the Constitution of India as right to life includes right to health in view of the expanded horizons of Article 21. The attitude of the Government is opposed to the rule of law and thus is contrary to the basic structure of the Constitution.
12. Under Articles 39, 46, and 47 in Part IV of the Constitution, the State was duty bound to work its constitutional journey towards the goals spelt out in Part IV of the Constitution which is necessary in the effectuation of the fundamental rights guaranteed under Part III of the Constitution. Against this specific constitutional mandate the Union of India has promoted by letter of intent and licences several hundreds of pan masala and gutkha manufacturing units. In the State of Andhra Pradesh every year 1 to 1 1/2 lakhs of people are dying due to oral cancer being caused by the consumption of gutkha, paan masala, zarda.
13. The National Institute of Nutrition, Hyderabad -4th respondent herein prepared a scientific report about the evil consequences of use of pan masala, gutkha and zarda. The institute found several other deleterious components in the said products including narcotics and has recently sent its report to the Central Government. Despite such an explosive report, the Central Government has taken no action to prevent the evil effects of the use of pan masala, gutkha and zarda.
14. On the basis of the above averments, the petitioner has sought for the relief mentioned supra.
15. In the counter-affidavit filed by respondent No.l. Union of India it is stated that the respondent has been taking appropriate steps from time to time to discourage the consumption and restrict the sale of pan masala containing tobacco/gutka/ chewing tobacco as well as other tobacco products and that the Central Committee for Food Standards, a statutory committee of experts constituted under the provisions of Food Adulteration Act, 1954 to advise the Central and State Governments on the matters arising out of the administration of the said Act, recommended for imposition of total ban on use of chewing tobacco in pan masala/gutka or as an ingredient in food items, or as such, in view of their adverse affects. A Bill, namely, the Cigarettes and other tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution Bill, 2001 has already been introduced in the Rajya Sabha on 7-3-2001 and the same is pending consideration of the Parliament. Under the Prevention of Food Adulteration Act, 1954 the States have the independent power to prohibit the sale of any article of food in the interest of public health and the Government is not opposed to such initiatives of the State Governments.
16. The State of Andhra Pradesh has filed a counter-affidavit referring to the evil effects of gutkha/pan masala etc. The counter also refers to the letter dated 28-8-1998 addressed to the Secretary to Government, Ministry of Home Affairs, Government of India, New Delhi requesting to take necessary action to ban production and sale of gutkha etc.
17. Respondent No.4-National Institute of Nutrition, Hyderabad represented by its Director and Respondent No.5 - Dental Council of India, represented by its Secretary have also filed counters detailing the adverse effects of consumption of tobacco and related products on the health of persons consuming and chewing such products.
18. In the counter-affidavit filed by respondents 7 and 8, it is stated that the writ petition is not based on any scientific study or scientific data and that they have the right to carry on the business under the provisions of Constitution and the said right cannot be negatived for fanciful and whimsical notions of what the petitioner believes to be good. It is submitted that they are engaged in lawful business of manufacture of pan masala and gutkha and that they have all the requisite licences from all the authorities and there is no illegal activity, which has been carried on by the respondents. It is also submitted that pan chewing is an ancient Indian habit and that in different parts of the country different forms of tobacco is chewed along with pan and what the respondents do is to mix the ingredients in proportion in hygienic and sterile conditions and put in foil pouches. Tobacco is an additional ingredient in gutkha and in addition there are flavours, which are added to pan masala/ gutkha.
19. Sri S. Ramachandra Rao, learned senior Counsel appearing for the petitioner strenuously contends that though ban was imposed in the State of Andhra Pradesh prohibiting the sale of pan masala under any brand name with an emblem of gutkha containing tobacco, chewing tobacco, zarda etc. so long as manufacture of gutkha, pan masala is allowed in other parts of the country, consumption of those products in Andhra Pradesh could not be effectively prevented. The learned Counsel has taken us through the counter-affidavit filed by the 4th respondent - National Institute of Nutrition in order to buttress his contention that the Union of India has merely evolved a cosmetic policy in preventing consumption of gutka/pan masala. He further submits that right to life includes right to health and the Constitutional Courts are duty bound to protect and uphold the rights guaranteed under the Constitution. In support of his contention, he relied on the decision of the Apex Court in Punjab v. Mohinder Singh Chawla, AIR 1997 SC 1125. He also submits that in social action litigation, Constitutional Courts can issue mandamus to ensure that these types of deleterious substances are not available to the public and in support of his contention; reliance has been placed on the decision of the Supreme Court in M.C. Mshta v. Union of India, : [1987]1SCR819 . Reliance has also been placed upon the decision of the Supreme Court in Ratlam Municipal Council v. Vardhi Chand, : 1980CriLJ1075 , and State of Punjab v. Ram Lubhaya Bagga, 1998 (4) SC 117. He submits that social justice has to be achieved in its real sense and, therefore the Constitutional Courts are not powerless to issue mandamus in the instant case. He also relied upon the decision of the Apex Court in Vellore Citizens Welfare Forum v. Union of India, : AIR1996SC2715 . Reliance has also been placed on the decisions of the Apex Court in R.C. Cooper v. Union of India, 1970 (1) SCC 284, B.R. Enterprises v. State of U.P., : (1999)9SCC700 , and State of M.P. v. P. Nandlal Jaiswal, 1986(4)5066.
20. Mr. Ramachandra Rao, then contends that the policy proposed to be evolved by the Union of India is not effective and does not have the teeth to prevent the mischief caused by the consumption of gutka/pan masala. He would further submit that when the policy of the State is not directed towards protecting the lives of its citizens, the constitutional Courts can 'certainly interfere by way of affirmative action. He referred to the decision of the Supreme Court prohibiting operation of diesel buses in the interest of protecting healthy environment and contends that when Courts can intervene to protect healthy environment, the Court can also intervene to protect mankind from deleterious substances. He relied upon the decision in Lilaben Udesingh Ghohel v. Oriental Insurance Company Limited, AIR 1986 SC 1605. He would further submit that when the policy of the State does not say anything with respect to prohibition of the manufacture of gutka/pan masala, the Courts can lay down guidelines as to what should be the policy of the Government.
21. Sri Soli Sorabjee, the learned Attorney-General of India contended that the writ petition is not maintainable. The Government of India is adopting a strategy of discouraging the consumption of different kinds of tobacco products and is engaged in addressing the issue in a phased manner taking into consideration various related factors. He would submit that prohibition of manufacture of gutkha/pan masala is a matter of policy and it involves various interests, which have to be taken into consideration before any decision is taken. Mr. Sorabjee strenuously urged before us that the Union of India has formulated a Bill in the matter, which would be debated' in the Parliament, and the Parliament alone is the right forum where the policy of the Union of India as found in the Bill could be debated. He would further submits that when any person can represent this cause before the Committee of the Parliament, this Court may not entertain the writ petition at this stage. He referred to the decision of the Indore Bench of Madhya Pradesh High Court in WP No.1231 of 1997 dated 30-6-1998 wherein the Madhya Pradesh High Court disposed of a similar writ petition with certain observations taking notice of the statement made in the counter filed that Government is taking care on the basis of the recommendations of the expert committee. The learned Attorney-General also relied upon the decision of the Supreme Court in Writ Petition (C) No.616 of 2000 dated 23-8-2001 (Women's Action Research and Legal Action for Women v. Union of India) wherein the Supreme Court dismissed a writ petition filed as public interest litigation for issuance of a direction to the Government to take appropriate action for prevention of smuggling of cigarettes into the country and for other allied reliefs including the prayer to set apart a fund to help the victims of smoking on the ground that a Bill has already been presented to the Parliament and is pending consideration before the Parliamentary Standing Committee. Mr. Sorabjee also placed reliance on the decision of the Apex Court in State of M.P. v. Nandlal (supra) and Balco Employees' Union (Regd) v. Union India, : (2002)ILLJ550SC .
22. There cannot be two opinions that chewing of pan masala, gutkha, which contains tobacco and other and tobacco related products have adverse ill effects on the human body and consumption of the same is on the upsurge. Reports of various research institutions, private and Governmental, who conducted comprehensive study and research on various forms of oral pre cancerous and cancerous ailments reveal that such diseases are caused as a direct result of chewing of tobacco and tobacco related products. It is also not in dispute that a number of people arc dying every year in India prematurely due to oral cancer because of the cumulative effect of the use of tobacco and tobacco products, which contains deleterious ingredients like nicotine, toxic metals like lead, nickel which are harmful to the human body. It also affects the circulation and nervous systems.
23. A multi pronged action plan is required to be adopted to - (1) educate and bring awareness among the people about the evil effects of the habit, (2) discourage cultivation of tobacco in a phased manner,
(3) prohibit the advertisements luring the younger generation to become addicted to the habit of chewing etc.
24. Under Article 47 of Constitution of India enshrined in Part IV of the Constitution of India, the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. The Central Committee for Food Standards, a Committee of Experts constituted under Section 3 of the Prevention of Food Adulteration Act, 1954 to advise the Central and State Governments on matters arising out of a administration of the Act, recommended the imposition of a total ban on use of chewing tobacco in pan masala/ gutka or as an ingredient in food items. The Government of India being alive to the evil effects of consumption of gutka and other allied tobacco products and in pursuance of the Directive Principle of State Policy underlined under Article 47, processed the recommendation of the expert committee. While processing the recommendation, various ministries related to the issue were consulted and some of them expressed reservations on the question of an immediate ban because of large implications on the tobacco growers and those involved in the manufacture/ production and sale of tobacco and tobacco products.
25. It appears that the Government has also taken the following steps to discourage consumption/use of all such products.
1. Statutory warning has been made mandatory under Prevention of Food Adulteration Rules, 1955 on the labels of the packages containing chewing tobacco, pan masala and supari. Further, such warnings are also mandatory in the advertisements relating to pan masala and supari.
2. Statutory health warnings are required to be put on packets of all cigarettes under the Cigarettes (Regulation of Production, Supply and Distribution Act), 1975. Such warnings are also mandatory in advertisements related to cigarettes.
3. The advertisements of all tobacco products including gutka have been banned on Doordarshan and All India Radio with effect from 1990.
4. Advertising of tobacco products on Cable television is also banned under the Cable TV Regulation Act.
5. Smoking in Central Government Hospitals, Dispensaries, and Offices, Educational Institutions, AC Sleeper Coaches in Trains has been prohibited through guidelines issued through the Cabinet Secretariat dated 7-5-1990.
6. A number of States have introduced legislation discouraging the use of tobacco products and banning the advertisement of tobacco product.
26. In view of the various recommendations and international experience in this regard, the Ministry of Health and Family Welfare has formulated a strategy for reducing the use of tobacco based on anti-tobacco legislation. A Bill, namely, The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001 has been introduced in the Rajya Sabha on 7th March, 2001 with a view to discourage use of tobacco products to prohibit the advertisement of, and to provide for the regulation of trade and commerce and production, supply and distribution of cigarettes and other tobacco products and for matters connected therewith or incidental thereto. At the time of hearing, a copy of the said Bill was placed before us. Our attention was drawn to the relevant provisions of the draft Bill.
27. It is seen from the statement of objects and reasons that the need for a comprehensive legislation to prohibit advertising and regulation of production, supply and distribution of cigarettes and tobacco products was recommended by the Parliamentary Standing Committee on subordinate legislation (Tenth Lok Sabha) and a number of points suggested by the Committee on Subordinate Legislation have been incorporated in the Bill.
28. The proposed Bill seeks to put total ban on advertising of cigarettes and other tobacco products and to prohibit sponsorship of sports and cultural events either directly or indirectly as well as the sale of tobacco products to minors. It also proposes to make rules for the purpose of prescribing the contents of the specified warnings, the languages in which they are to be displayed, as well as displaying the quantities of nicotine and tar contents of these products. For effective implementation of the proposed legislation, provisions have been proposed for compounding minor offences and making punishments for offences by companies more stringent. The objective of the proposed enactment is to reduce the exposure of people to tobacco smoke (passive smoking) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisements. This will result in a healthier life style and the protection of the right to life enshrined in the Constitution. The proposed legislation further seeks to implement Article 47 of the Constitution, which, inter alia, requires the State to endeavour to improve public health of the people.
29. We have given our thoughtful consideration to the rival submissions of the respective parties. There can be no doubt that chewing of tobacco/gutkha or smoking is noxious to the health of persons who are habituated to such practice. It is also true that maintenance of health and environment falls within the purview of Article 21 of the Constitution. Consumption of gutkha and chewing of tobacco adversely affect the life of the citizen and reduces the very life span itself. Taking into account the alarming scenario as discussed above, the question then is what is the relief, which this Court can grant to the petitioners. Can this Court direct the Legislature to enact a law banning manufacture of gutkha or tobacco or the allied products? In our opinion, the answer can only be an emphatic no. It is entirely for the Executive branch of the Government to decide whether or not to introduce any particular legislation. The Court certainly cannot mandate the Executive or the Parliament or any Legislature to initiate legislation howsoever necessary or desirable the Court may consider it to be. If the Executive has not carried out any duty laid upon it by the Constitution or the law, the Court can certainly require the executive to carry out such duty and this is precisely what the Courts would do when it entertains public interest litigation. But, at the same time, the Court cannot usurp the functions assigned to the Executive and the Legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume the supervisory role over the law making activities of the Executive and the Legislature. It has to be borne in mind that this Court acting as a sentinel on the qui vive can certainly interfere and grant relief by issuing a mandamus to the Government to enforce the existing laws in order to safeguard the interests of the public. When laws are there to deal with the problem, the law has to be enforced by the law enforcing agency or the State.
30. As already noticed, the Government of India have already launched steps and introduced a Bill in the Parliament on 7-3-2001 itself and the Bill was referred to the Parliamentary Standing Committee on 12-3-2001. The Standing Committee has submitted its report in December, 2001 and the same is under consideration. Therefore, the Bill is now pending in Parliament.
31. The salient features of the Bill are as under:
1. To prohibit the advertisement of all tobacco products and to provide for its regulation in trade and commerce.
2. To prohibit smoking in public places.
3. To prohibit selling of tobacco products to persons below the age of 18 years.
4. Indication of nicotine and tar contents on the packets.
5. Indication of the warning on the package in English as well as Indian languages.
6. Total ban on sponsoring of any sport/ cultural events by cigarettes and other tobacco product companies.
7. Empowering Sub-Inspectors of Police, or equivalent Officers of State Food or Drug Administration of the Central/State Governments, to carry out the provisions of this legislation and confiscation of the goods in case of any violation. However, the owner of the goods will be given the option to pay a fine in lieu of the confiscation, which should be equal to the value of the goods confiscated.
8. Imposition of a fine up to Rs. 200/- for minor offences relating to smoking in public places, sale of tobacco products to minors.
32. As already stated, the Government of Andhra Pradesh have issued two G.Os -G.O. Ms. Nos.44 and 55 through Health, Medical and Family Welfare (LI) Department dated 19-2-2002 and 27-2-2002 respectively in exercise of the powers conferred under Clause (iv) of Section 7 of Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954). The notification issued under the G.O. Ms. No.44 prohibits the sale of pan masala under any brand name with an emblem of 'Gutka' which contains tobacco in the entire State of Andhra Pradesh in the interest of Public health. Similarly, G.O.Ms.No.55 was issued prohibiting the sale of all brands of pan masala (containing tobacco) and chewing tobacco/zarda/khaini under any brand name in the entire State of Andhra Pradesh with immediate effect in the interest of public health.
33. We do appreciate the contention of Mr. Ramachandra Rao that so long as manufacture of gutka/pan masala is not prohibited in other parts of the country, consumption of those products in Andhra Pradesh could not effectively be prevented. But, the question is when the matter is already seized by the Parliament, can this Court under Article 226 of the Constitution go into the same and issue a mandamus to make enactment for total prohibition of gutka/pan masala in a public interest litigation. The answer must be an emphatic no. The Apex Court in State of H.P. v. Student's Parent, Medical College, Shimla, : [1985]3SCR676 , held that public interest is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. In our considered opinion, it is entirely a matter for the Executive branch of the Government to decide whether or not to introduce any particular legislation. There is no dispute that under the expanded horizons of Article 21 of the Constitution, right to life includes right to health (State of Punjab v. Mohinder Singh Chawla) and the Constitutional Courts are duty bound to protect and uphold the rights guaranteed under the Constitution. But, when a Bill is pending before the Parliament on the subject-matter, it is not within the realm of this Court to deal with the same and issue a mandamus to enact legislation in a particular manner.
34. Another contention of the learned Counsel for the petitioner is that the policy proposed to be evolved by the Union of India as reflected in the Draft Bill is not effective and does not achieve the desired goals and there is no deterrent punishment proposed on the person habituated to violate the provisions of law. There are also no provisions for a total ban on gutka and other tobacco allied products. To express any opinion on the question whether there should be a total prohibition of gutka pan masala etc., or not or a partial prohibition is not within the competence of this Court as this Court exercising the power of judicial review cannot go into the correctness or otherwise of the policy of the Government Further, the Bill is still pending consideration before the Standing Committee of Parliament. What recommendations the Standing Committee will ultimately make to the Bill will depend upon the deliberations that may take place before the Committee. The persons interested in the matter and NGOs will also have an opportunity to approach the committee and make all their submissions before it. Further, after the recommendations of the Parliamentary Standing Committee the Bill, has to be placed before the Parliament and has to be debated upon. The suggestions of the Members will also have to be taken into consideration, before the Bill is finally passed by the Parliament.
35. At this stage, it is apt to notice some of the observations made by the Apex Court in a recent case in Balco Employees' Union (Regd.) v. Union of India (supra) regarding the economic policy of the Government on disinvestments in public sector undertakings. Referring to the decision in State of M.P. v. Nandlal Jaiswal, it was observed that the Government is entitled to make pragmatic adjustments, which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It was further observed that it is neither within the domain of the Courts nor within the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether a better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or logical. To the same effect is the decision in State of Punjab v. Ram Lubhaya Bagga.
36. There cannot be any dispute about the propositions laid down by the Apex Court in Ratlam Municipal Council v. Vardhi Chand, State of Punjab v. Mohinder Singh Chawla, M.C. Metha v. Union of India etc., dealing with environmental matters. The decision of the Supreme Court in Delhi transport cases was rendered in a completely different context. Since the smoke emitted from the prohibited vehicles is causing environmental pollution on large scale in the city of Delhi affecting the health of the public at large, the Supreme Court has issued directions for removal of the vehicles. The threat posed in the city due to pollution caused by the condemned vehicles is enormous. In such a situation, the Apex Court issued directions to take stringent action against the persons who violated the earlier directions of the Apex Court. Here it is not a case where the environment is seriously affected posing serious threat to all the general public. It is a case where only a section of the people have been affected due to their addiction to certain habit.
37. It may also be noted that ultimately, a balance has to be struck between the interests of farmers growing tobacco on one hand and the citizens who are addicted to consumption of tobacco and allied products on the other in a strategic manner keeping in view the economic interest of the country. In such a situation, the Union of India, having control over the economy, is the appropriate authority to decide as to what policy should be evolved in the matter with the assistance of persons working in various departments, institutions etc., having administrative and economic expertise. This Court, in exercise of its power under Article 226 of the Constitution of India, cannot enter into such arena and render its opinion one way or the other in substitution of the one by the Government.
38. Whether it is possible or desirable to impose a total prohibition of pan masala, gutka or partially or it can be done in a phased manner or what would be the effect if a total prohibition is imposed are exclusively and essentially matters for the Parliament to deliberate and debate upon and take a decision in the interest of public. The Parliament or Legislature being the mouthpiece of democracy should be allowed to take its decision in accordance with the norms and established Parliamentary Procedure. Any opinion on the issue by this Court would amount to interfering with the legislative function of the Parliament.
39. In this context, it is apt to recollect what T. Smith wrote in the classic work 'The Legislative Way of Life' [91-92
(1940)]:
Legislation is a process slow and cumbersome. It turned out a product - laws - that rarely are likes by everybody, and frequently little liked by anybody....... [When seen from the shining cliffs of perfection the legislative process of compromise appears shoddy indeed. But when seen from some concentration camp of the only alternative way of life, the compromises of legislation appear but another name for what we call civilization and even reverse as Christian forbearance.
40. In the view we have taken, we do not think it is expedient to refer to the well settled propositions in various decisions of the Apex Court relied upon by the learned Counsel appearing for the petitioner.
41. At this stage, we may also notice the order passed by the Apex Court in WP (C) No.616 of 2000 (Women's Action Research and Legal Action for Women v. Union of India) wherein a prayer was made for prevention of smuggling of cigarettes from outside into the country. A prayer was also made to direct the Government to create a fund to help the victims of smoking. Taking notice of the Draft Bills referred to above pending before the Parliamentary Standing Committee on Human Resource Development, it was observed;
In the several sittings held so far, NGOs, and members of the public have presentations before the Committee pursuant to an advertisement issued from the Rajya Sabha Secretariat seeking suggestions, comments, views and written submissions from individuals, organisations, institutions of tobacco growers and others who may be interested in the matter. Since the matter is still pending consideration before the Committee, it would be open for the petitioners who are NGOs., to approach the said Committee and make all submissions which they are making before this Court in the matter including the question of creation of a Fund for the victims of smoking of cigarettes. Mrs. Jethmalani, in course of her submissions, stated that this writ petition should be kept pending and be monitored by this Court We are unable to accept this submission, particularly in view of the fact that a Bill has already been presented before the Rajya Sabha and is receiving attention of the Parliament, which is seeking to make effective provisions to safeguard the health of the citizens of this country. In the aforesaid premises, we do not wish to entertain this petition any further. The same is accordingly dismissed.
42. In this view of the matter, we find no ground to entertain the writ petition and it is accordingly dismissed. There shall be no order as to costs.