Tobacco warning: Apex court refuses stay on Karnataka High Court order

The Supreme Court today refused to grant any interim stay on the Karnataka High Court order that quashed the 2014 government regulation that packets of tobacco products must carry pictorial warning covering 85 per cent of the packaging space.

The high court, on December 15, had struck down the 2014 amendment rules that mandated pictorial health warnings to cover 85 per cent of packaging space of tobacco products, holding that they were unconstitutional as they violated fundamental rights like the right to equality and the right to trade.

A vacation bench comprising Chief Justice Dipak Misra and Justice Sanjay Kishan Kaul said it cannot stay the judgement of the high court without "looking" into it and fixed the appeals challenging it for hearing on January 8.

Meanwhile, it directed the apex court registry to convey its order to the high court registry that the impugned verdict has to be uploaded on the high court's website.

"We must understand the High Court judgement. We would like to see as what the High Court has said. We do not know what has been said in the judgement. You (lawyers) want us to pass the order without looking at the judgement," it said.

The bench also made clear to the Tobacco Institute of India (TII), which has been made a party in the appeals, that in the meantime, it would not claim "equity" on the basis of the high court verdict, thus denying TII the benefit of the favourable HC order.

Senior advocate Anand Grover, who appeared for NGO 'Health for Millions Trust' and lawyer Aishwarya Bhati, representing Umesh Narain who has filed the appeal, sought an interim stay on the high court verdict, saying the matter pertained to public health.

The Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014 (COTPA) had come into effect from April 1 last year and it came into being based on the recommendations of experts committee, Grover said.

The bench was hearing appeals including those filed by NGO 'Health for Millions Trust' and Umesh Narain, a senior advocate, against the high court verdict.

Narain, in his appeal, said, "The implementation of Regulations mandating 85 per cent pictorial warning on both sides of Tobacco products was a culmination of an extremely long, cumbersome and excruciating fight by public heath activists, people whose life and family had been ruined by Tobacco, against the mighty Tobacco industry."

The graphic pictorial warnings which occupy 85 per cent of the package on both sides will assist not only the existing consumers of tobacco products to understand the grave health risks involved but will also dissuade the younger generation from becoming tobacco addicts, the plea said.

"The impugned order will have a serious and numbing impact on India's fight against Tobacco. It is regressive, retrograde and jeopardises future generations of the country having maximum number of youth in the world," it said.

Narain, 65, said he was addicted to tobacco which poisoned his body to the extent that in 2010 he was diagnosed with tongue cancer that required major surgery in 2011.

"The tobacco industry always attempted to project tobacco products as 'cool', 'macho', 'classy', 'rebellious', 'affluent' and 'modern'. Graphic and big pictorial warnings bust the myth of tobacco products being cool, stylish and fashionable," the plea said.

The high court had, however, made it clear that the 40 per cent pictorial health warning rule, which existed prior to the amendment rules, would remain in force.

In May last year, the Supreme Court had transferred all petitions against the 85 per cent rule filed in various high courts to the Karnataka High Court and asked it to hear and dispose them of.

Passing its orders, the high court had held that the Union Health Ministry does not have any jurisdictional power to make such rules.

From the perspective of tobacco growers, such a rule violated the Right To Equality under Article 14 of the Constitution because there was no connection between the images and the warnings, the high court had observed.

The petitioners, the Tobacco Institute of India and others, had challenged enforcement of the COTPA which required printing of pictorial health warnings covering 85 per cent of tobacco product packages.

The industry had also said the global average size for graphic health warnings (GHWs) was only about 30 per cent of the principal display area.