HC directs Centre to file affidavits against petitions challenging its e-cigarette ban

The Calcutta High Court on Tuesday directed the Centre to file its affidavits against the petitions challenging its decision to ban e-cigarettes in the country.

The government had on September 18 passed an ordinance making the production, import, export, transport, sale or advertisements of e-cigarettes and such "alternative" smoking devices a cognisable offence attracting jail term and fine.

Leaving most of the ordinance intact, the high court stayed only a clause that required submission of stock to government premises, and directed that manufacturers and wholesalers of e-cigarettes can keep it in their own godowns, where a government officer will oversee the inventory.

Justice Arindam Sinha directed the government to file affidavits in opposition to the petitions by November 5 and the petitioners to file their rejoinders by November 13.

The matter will be heard by the court again on November 14.

Opposing the petitions against the ban, Additional Solicitor General Aman Lekhi submitted that the problem of e-cigarettes becoming an addiction for users can be dealt with only through a ban and not regulation, as that will not be effective.

He submitted that no right under the Constitution is absolute, and as such, the petitioners' contention that fundamental rights have been violated by the ban does not stand.

Lekhi said the effects of e-cigarettes can be as disastrous as combustible cigarettes and its prohibition is not arbitrary as alleged by the petitioners.

The ASG submitted that the government chose to act immediately by bringing an ordinance which, he said, can be used for several purposes, including against the use of narcotics.

Justice Sinha said the question is whether bringing an ordinance was the right approach without placing the issue before Parliament and enacting a law after discussions.

Lekhi submitted that the ban was effected in anticipation to injury to public health and as a preventive measure.

He added that the mark of a good government is to act promptly to prevent damage to public health.

Praying for a stay on the ordinance, Abhishek Manu Singhvi, representing a city-based e-cigarette wholesale company, said the Centre is trying to create a scare and an imagery that must be stopped forthwith.

Singhvi submitted that e-cigarettes are not more harmful than combustible cigarettes and is less on harmful content.

He claimed that e-cigarettes in itself do not cause deaths, but fake items added to it may do so.

The e-cigarette wholesale company and another manufacturing company of the product moved the high court on September 26, challenging the Centre's decision to forbid alternative smoking devices, claiming it is arbitrary, discriminatory, excessive and drastic.

Singhvi had claimed before the court that the ban violates fundamental rights guaranteed under Articles 14 (Equality before Law), 19 (Protection of Rights) and 21 (Protection of Life and Personal Liberty) of the Constitution.

He submitted that the government's decision was discriminatory since sale and advertisements of combustible tobacco products like cigarettes, cheroots and bidis, which are far more harmful to health, continue with certain restrictions.

The ordinance stipulates that first-time violators will face a jail term of up to one year and a fine of Rs 1 lakh. For subsequent offences, a jail term of up to three years or a fine of Rs 5 lakh, or both have been prescribed, Finance Minister Nirmala Sitharaman, who headed a Group of Ministers (GoM) on the issue, had said.

Storage of e-cigarettes shall also be punishable with imprisonment up to six months or fine of up to Rs 50,000 or both.