Weekly Legal Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

8^th December 2014:

The division bench of Supreme Court has struck down the legality of provisions in certain circulars which banned hookah smoking and sale of cigarettes in designated smoking areas. With this three High Court (Bombay, Gujarat and Madras) decisions is overturned. The illegality of circulars was found on the basis of it being violative of COTPA Act, 2003 and Rules.

The Supreme Court agreed to hear a plea challenging the recent ordinance on Coal Block Allocations which is to be heard on 6^th December. The Court had earlier declined a batch of petition by private companies seeking that it re-look its September 24 order cancelling 214 coal blocks allocated from 1993 to 2011.

9^th December 2014:

A Delhi Court has held fourmen guilty for murdering L.N. Mishra, the then Railway Minster in a bomb blast on January 2, 1975. This trial is one of the longest drawn trials in India. Over 200 witnesses were examined in the case. Though the charge-sheet was filed in 1977 in a CBI court in Patna, the conviction has come only after about 40 years of the murder. Earlier in 2012, the accused approached the Supreme Court for quashing the trial against them as the case has not been concluded even after 37 years, which was not accepted by the apex court and was returned to the Delhi Court. The quantum of sentence would be pronounced on 15th December.

10^th December 2014:

The Central Government announced that section 309, attempt to commit suicide, will be deleted from Indian Penal Code (IPC) which will decriminalize the act of commitment of suicide. The decision is based on the request by 18 states and 44 Union territories to implement the Recommendations made in this regard by the Law Commission of India in its 210^th Report. The report made reference to P. Rathinam v. Union of India, where the Supreme Court of India held that Section 309 of IPC is violative of Article 21 of the Constitution of India. The same was overruled in Gian Kaur v. State of Punjab, however The Mental Health Bill of 2013 did attempt to decriminalize the same by putting presumption of mental illness on the persons attempting to commit suicide.

The Kerala High Court has concluded that the DLF violated the Coastal Regulation Zone Notification (CRZ Notification) and therefore ordered the demolition of the construction under DLF project in Kochi. The Court held that:

“Authorities are constituted under various enactments to see that the environment is protected and to see that the present topography which keeps the ecological balance is not disturbed. The purpose of these laws is to preserve nature for posterity. If the violation of these laws is allowed to become the order of the day, the existence of life would be at peril. Right to life guaranteed by our Constitution takes in innumerable rights, including the right to enjoy nature in the present form. Indiscriminate invasion of nature to the detriment of others is an invasion of right to life. Nature which is the property of the nation cannot be allowed to be scrambled by a minority violating all laws.”

11^th December 2014:

The Delhi High Court injuncted Xiaomi, a Chinese phone manufacturer, from selling, advertising, manufacturing or importing devices that infringe the Standard Essential Patents (SEPs) in question. The same SEPs are also a subject matter of a pending litigation between Ericsson and Micromax, Gionee, Intex.  In an ex-parte order passed against Xiaomi, the court also directed Customs Department to stop import of such products as per the IPR Rules, 2007. It is worth noting that Xiaomi managed to sell out its 50,000 handset in just 6 seconds on 8^th December.

12^th December:

Hearing an appeal filed by the Department of Ex-Servicemen Welfare (DESW) against a judgment of the Armed Forces Tribunal (AFT), the Supreme Court had to decide the question of benefits of an extra amount in pensions on account of disability due to service conditions of the ex-servicemen of the Army. The Bench headed by HL Dattu, CJI, said:

“They are in the line of fire. They sacrifice their life for you and for us. This is the least you could do for them. The government can have at least this much of budget for its soldiers who are dying for the people of this country everyday. What is the point of having these memorials and placards saluting our defence personnel if you litigate against the disabled soldiers till the Supreme Court. You should pay them,”

The Government agreed to comply with the order. The Supreme Court dismissed the matter, as a result disposing 880 appeals on the issue. It has also been reported that around 15,000 retired soldiers will be benefited due to the order.

The Social Justice Bench constituted to hear cases pertaining to “Social Justice” matters began with the division bench of Justice Madan B Lokur and Justice UU Lalit. The bench will take up fresh matters alongside the pending matters and will sit every Friday at 2PM at the Supreme Court. The bench was constituted to achieve the Constitutional goal of securing social justice for the citizens of the country.

The Supreme Court has dismissed Bayer’s Special Leave Petition (SLP) against the decision of the Bombay High Court. This dismissal will continue the effectiveness of grant of compulsory license to Natco for Bayer’s anticancer drug Nexavar. This has continued the Indian Courts’ stand to ensure the access to medicine across the country.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Manish Kumar, (3rd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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SFZ - SMOKE FREE ZONE

A few weeks back, one night I felt sudden craving for a cigarette, so I got out to a nearby shop to buy one. The first shop had no cigarette!! No problem, IIT is full of canteens that sell it. I went on to next destination and then to another one only to find that no one is selling it.

‘This can’t be coincidence’ I thought. I asked to the shopkeeper, why all shops are out of cigarettes today? Who has bought it all?

‘IIT Director’s notice, Can’t sell cigarettes!’ the shopkeeper answered mechanically.

Of all the days, the administration was to wake up today only!!!

But why stop it now when you never gave a damn about it? There are reasons for it, but administration gave a straight forward answer. It is illegal to sell cigarettes inside campus. They are health hazards.

Absolutely right!!

But they were supposed to have never allowed smoking inside campus. It is more harmful than drinking alcohol (this is just comparative magnitude I am talking about; it does not support alcoholism at all). In fact, irreversible harm is caused by smoking, whether active or passive.

The WHO has indicated in its report that 76% of Indian films influence the youth to take up smoking and by 2020, 70% of deaths due to tobacco use, would be in the average or low income groups, especially in India and China. Almost Rs. 13,000 crore was spent in the year 2004 and it crossed Rs. 30,000 crore in less than a year, on the treatment of tobacco related diseases.[1] The effect is worse for passive smokers. Second Hand Smoke (SHS) is known to contain more than 4000 toxins which include carcinogens (cancer causing agents). Exposure to SHS leads to lung cancer and heart diseases in adults and lung diseases and other health problems in children.

Then what is government doing in this regard? For any government the very first step is a strong legislation, the second one is enforcement and then vigilant judicial activism to bridge the lacuna in the system.

Strong Legislation

India, being a major tobacco consuming nation, has its own challenge of curbing the stigma. India enacted national tobacco-control legislation namely ‘COTPA Act, 2003’ on May 15, 2003 and ratified Framework Convention on Tobacco Control (FCTC) on February 5, 2004. COTPA Act aimed to restrict tobacco advertisements, sponsorship and promotion, establishing new labeling of tobacco with strong health warning and establishing clean indoor air controls. This objective was intended by imposing restriction on smoking in public places and other related policies.

The main feature of this legislation was complete ban on smoking in public places, prohibition of sale of tobacco products to minors and sale of cigarettes and tobacco products within a radius of 100 yards (91.44 meters) of educational institutions. The term ‘public place’ (in this Act) is vague and it needs to be defined specifically.  (Section 6)

Administrative Actions

The Government of India enforced the laws with utmost sincerity.  The Union Health Ministry immediately took action by notifying Delhi Government to check and regulate the violators of the Act. Banners and Hoardings of ‘Marlboro’ were removed with immediate effect. Show cause notice was issued to the Managing Editor of the Stardust magazine for violation of provisions of the Act. Also greeting cards of Gold Flake, i.e. ‘Gold Flake Expression’ were stopped from distribution as it amounted to direct or indirect advertisement.[2]

Furthermore, the government tightened the loopholes in tobacco control rules. Ban on sale of tobacco products by minors, through wending machines, ban on display of any tobacco or related products on TV and movies, notice of health warning while any smoking scene is broadcasted, masking the brand name of such products etc. were made mandatory so that minors do not get access to such lethal smoke.[3]

No Smoking Zone inside IIT Kharagpur

What I mean to state is that the laws are stringent; the government is actively and effectively trying to implement it as well. How IIT Kharagpur, then, was overlooking the government norms? Can IITs, being an autonomous body, keeping in mind the cultural habit of West Bengal, make such rules and regulations that allow smoking in public places? Isn’t it a violation of legislative mandate? 

Is it not obvious that allowing the sale of cigarettes inside campus will provide free-rider to businesspersons to sell it to students, irrespective of them being minors or adults? IIT can be considered as a small village, a model village of our country. From far East to West and from South to extreme North, each state has sent best of their brains to nurture and evolve as prime in their respective fields. Can local culture be allowed to breach such a great cause?

On 14^th February 2008, the University of Delhi was declared “No Smoking Zone.” A movement then started and smoking was strictly prohibited in academic institutes all over the country. Unfortunately, we still fall back (greatly) in this movement.

Judiciary speaks

IIT Rules itself prohibits smoking. But when it comes to practicality, arguments are advanced with regard to local cultural habit of West Bengal. National Green Tribunal recently declared (Decision) that IIT can’t be above law and therefore it has to follow the law in toto. 

Honorable Supreme Court of India has read smoking in public places in violation of Article 21, further listing a few ‘public places’ such as Auditoriums, Hospital Buildings, Health Institutions, Educational Institutions, Libraries, Court Buildings, Public Office, Public Conveyances, including Railways, where smoking is absolutely prohibited.

In case of Cancer Patients Aid Association v. Karnataka Health and Family Welfare Dept., et. al. (2009, 2010 and 2010) at three different occasions, the Karnataka High Court has ordered complete ban on any kind of sale of tobacco or related products in 100 yards radius of academic institutes and schools. The same has been re-iterated in a case where Delhi High Court has found that such public nuisance, that harms school kids especially, cannot be tolerated.

Analysis & Conclusion

The current restriction on smoking is for hostel areas and associated canteens only. Although, after a few weeks, today students can be seen smoking all around. A few hostel shops continue to sell cigarettes to students. Furthermore, putting all laws, regulations and Hon’ble Supreme Court’s orders at stake, our own IIT Kharagpur continues to allow sale of cigarettes at certain places inside the campus.

Does a common sense or the legal understanding of ‘campus area’ and ‘in radius of 100 yards’ will exclude certain areas, if it is physically located inside IIT? In fact, these places are very common and are even accessible to school students. Special privilege is provided to these places which cannot be justified by any means. This also creates a possibility of abuse of such dominant position which is endorsed by the administration itself.

There are shops inside academic buildings that sells cigarettes. This particular shop is situated at the center of auditoriums and classrooms. The most famous canteen in IIT was never restricted by this particular order.

The IIT administration, especially the top management, has shown strong will and has put commendable effort to restrict smoking activities. But, with all due respect, they should act stronger and send a clear message that we are not supposed to create smoke free zones in different sectors of IIT, rather the whole IIT-Kgp is a 'Smoke Free Zone.'

This is not a matter that requires a crusade, it’s a simple matter with minimal of brainstorming. Law is as clear as a raindrop, so is the morality. Right to life includes a ‘Smoke Free Environment’ and such right cannot be diluted with any regulation or any discount in rules. This not only concerns the kids and youth but also concerns the future of India.

P.S. : With this article, I tend to create an awareness that we should all pledge not to smoke inside IIT campus or in 100 yard radius of IIT and understand that we can cherish our liberty, but not at the cost of discomfort to others.

Author - Manish kumar

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1] Notice dated 10th February 2004 by Ministry of Health and Family Welfare. (http://pib.nic.in/newsite/AdvSearch.aspx)

[2] Notice dated 19th January 2005 by Ministry of Health and Family Welfare.  (http://pib.nic.in/newsite/AdvSearch.aspx)

[3] Notice dated 5th December 2005 by Ministry of Health and Family Welfare.   (http://pib.nic.in/newsite/AdvSearch.aspx)

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