THE STATES

Smokers under siege

Smokers in Kerala come under pressure as a High Court judgment banning smoking in public places is enforced across the State.

ANAND PARTHASARATHY

THE second class chair car of the intercity express train bound for Thiruvananthapuram witnessed an unusual sight recently. Soon after the train left Ernakulam, a passenger lighted a cigarette - not an unusual sight in Indian Railways. What was unusual w as the reaction of his co-passengers. A woman in the adjacent seat requested him firmly to put out his cigarette. When he did not comply, four other travellers got up and surrounded the smoker. "This is Kerala," they said, "Don't you read the newspapers? You can't smoke in public here. Either you put out your cigarette or we hand you over to the Railway Police."

Faced with this determined assault, the man threw away his cigarette, bemused at the reaction of his co-passengers. "Nobody minds in the North, it's not a big deal there," he grumbled. As many others like him have found out, smoking in public in Kerala t hese days can be a painful exercise. If you flourish a cigarette or a beedi in public places - bus stations, streets or railway platforms - the chances are that a policeman will nab you and issue a summons to appear before the local magistrate. If you re sist or refuse to give a credible name and address, he could arrest you. The fine one has to pay for the pleasure of lighting up in public is anything between Rs.200 and Rs.500. If one refuses to pay or cannot afford to, it is one month behind bars.

What amazes visitors nowadays is that one cannot easily smoke in Kerala even if there are no policemen around. The members of the public will prevent you. This is one law the people have welcomed. Snap polls conducted by the media and some commercial org anisations found that nearly 80 per cent of those interviewed were in favour of the ban.

The ban was imposed by District Collectors within days of a landmark judgment delivered by a Division Bench of the Kerala High Court on July 12. The judgment followed a petition filed earlier this year by two Keralites: Monamma Kokkad, mother of three ch ildren and a teacher of English Literature at BCM College, Kottayam, and K. Ramakrishnan, an advertising designer from Kozhikode who has since moved to Dubai. Monamma Kokkad used to commute by train between Kottayam and Ernakulam, and it was the hassle o f having to put up with smokers on the journey that motivated her to move the courts.

When the case came up before a Division Bench consisting of Acting Chief Justice A.R. Lakshmanan and Justice K. Narayana Kurup, the judges took an unusual course of action. They enlarged the list of respondents from an original nine to 52, including ever y possible agency of government, the civil administration and the police. This ensured that any action that flowed from the judgment was swiftly executed.

The 48-page judgment - possibly the most detailed legal document on the subject of smoking hazards - drew on dozens of sources both Indian and international (articles and news items from The Hindu were cited). Around one million people die every year in India from tobacco-related diseases, according to the Indian Medical Association. Cigarette smokers have been proven to have a 70 per cent higher chance of dying earlier than non-smokers; in fact, half of these smokers will be dead before they tu rn 40, according to the judgment.

K.G. SANTHOSH
A policeman forbidding a smoker from lighting up in Thiruvananthapuram, outside the State Secretariat.

It devotes much space to documenting the hazards of passive smoking - what the medical profession now calls "environmental tobacco smoking (ETS)". This is a syndrome that is as yet not fully studied in India, but the statistics in the United States are s triking. According to a 1998 report of the American Health Association, quoted by the judges, there are nearly 40,000 deaths caused by the effects of passive smoking in the U.S. every year. Even infants are in danger of contracting asthma and other lung diseases if their parents are heavy smokers.

In India, the Bench found, an indication of the dimensions of the hazard can be seen in the statistics of paediatric admissions in hospitals: one in four is the child of a smoker. After direct smoking and alcohol, concluded the judges, passive smoking is one of the biggest worldwide killers.

It is the interests of this section of the public which is subject to serious health risks for no fault of theirs that invite the court's concern. And, in an analysis which is a throwback to the judgment delivered by V.R. Krishna Iyer in the Ratlam Munic ipality case in 1980, the court found that "existing laws... are quite sufficient to safeguard the interests of the public against the wisp of environmental tobacco smoke."

This, said the court, is because smoking is a public nuisance as covered under Section 268 of the Indian Penal Code - it "causes any common injury, danger or annoyance to the public". Further, the court invokes another Section which concerns "making the atmosphere noxious to health" and says: "There can be no doubt that smoking in a public place will vitiate the atmosphere so as to make it noxious to the health of persons who happen to be there. Therefore smoking is an offence punishable under Section 278 of the IPC."

The judgment concluded: "Public smoking of tobacco in any form whether in the form of cigarettes, cigars, beedies or otherwise, is illegal, unconstitutional and violative of Article 21 of the Constitution of India (which assures every citizen the right t o life and liberty). We direct the District Collectors of all districts of the State of Kerala... to promulgate an order under Section 133 (a) CrPC, prohibiting public smoking within one month from today and direct the Director General of Police to issue instructions... to prosecute all persons found smoking in public places... by filing a complaint before the competent magistrate... "

The judgment clarifies that "smoking in public places falls within the mischief of the penal provisions relating to public nuisance as contained in the Indian Penal Code and also the definition of air pollution contained in the statutes dealing with prot ection and preservation of the environment..." A footnote clarified what the judges considered a public place " all educational institutions, hospitals, shops, restaurants, commercial establishments, bars, factories, cinema theatres, parks, walkways, pla ces of amusement, bus stops, bus stations, railway stations, railway compartments, and other public transport vehicles, highways, or other places where people congregate." This turned out to be the crucial and operative part of the court's orders: you ca nnot smoke on a road or within a restaurant - indeed any place where another member of the public has access.

BY SPECIAL ARRANGEMENT
Acting Chief Justice of the Kerala High Court Justice A.R. Lakshmanan.

EVERY District Collector acted within days of the judgment and well before the 30-day deadline. Smoking in public is a cognizable offence, that is, the police can make an arrest even without receiving a formal complaint. The Government now plans to send publicity vans equipped with loudspeakers to all towns and villages to broadcast details of the ban.

In the days following the judgment, the police picked up hundreds of smokers who attempted to smoke at bus stations, on railway platforms or in shopping centres. A pocket cartoon in Mathrubhoomi, the Malayalam daily, showed a policeman telling ano ther: "No room in the lock-up for all the smokers, sir. Shall we let out the petty thieves and pickpockets?"

Old habits die hard, but faced with the hassle of having to appear in court and pay a fine of Rs.200 or more, many smokers have called it quits, at least in public. The foyers of cinema theatres which used to be normally enveloped in a cigarette-induced haze during the interval, were suddenly clear of smoke.

And 'no smoking signs' have sprung up in unlikely places, around places of worship, in local reading rooms and gymnasia. A day after the judgment was published, a heartfelt response was posted on the gates of a church in Champakkara near Kochi: "No smoki ng on these grounds." In smaller letters was a footnote in Malayalam: "High kodathi vidhikku nanni" (thanks for the High Court judgment).

Fifteen days after the court's order, cigarette majors reported a 30 per cent to 50 per cent drop in the offtake of tobacco products by the around two lakh retailers in the State. Officially the Government has accepted the judgment and will not appeal a gainst it. But Chief Minister E.K. Nayanar, a former smoker, has assured smokers that they will not be unduly harassed by the police who would, however, strictly enforce the court orders.

Such compliance will cost the exchequer dear. Tobacco products used to provide Rs.200 crores every year by way of taxes. Kerala Dinesh Beedi, the largest cooperative tobacco venture in the State and an umbrella organisation for 22 primary societies and o ver 300 plants, will soon move an appeal in the High Court, citing the threat to the livelihood of 25,000 people who depend on the manufacture and sale of beedis.

BY SPECIAL ARRANGEMENT
Justice K. Narayana Kurup, who issued the landmark order.

Legal experts do not see much hope for such appeals. Says P.B. Sahasranamam, an advocate at the High Court who specialises in environmental pollution law: "No review lies in the Kerala High Court unless it can be established that the judgment contains an error apparent on the face of the record." This is unlikely.

The only legal recourse open to those who may want to seek to reverse the judgment is to move the Supreme Court. And that would be a dicey option for the tobacco industry: if it loses its appeal in the apex court, it risks seeing the Kerala ban extended all over the country.

The media are already questioning why States such as Delhi, Haryana and Himachal Pradesh were tardy in enforcing laws banning public smoking. And within the last few weeks, anti-smoking activists are reported to have moved both the Madras and Karnataka H igh Courts, seeking a ban similar to that imposed in Kerala.

The hotel and restaurant industry which operates thousands of bars in Kerala has not yet reacted to the ban; but it is likely to feel the impact in the weeks ahead. Observers suggest that the industry may be forced to invest in a facility that is common in countries whose smoking laws are strictly enforced - lobbies for smokers.

The Supreme Court, meanwhile, is hearing a public interest case filed by Mumbai Congress leader Murli Deora against cigarette manufacturers, seeking Rs.500 crores on behalf of non-smokers and better control over the marketing, advertising and consumption of tobacco products.

It may well happen that the Kerala move triggered by a couple of public spirited citizens and articulated by an alert and sensitive judiciary, will create a nationwide focus on the dangers of tobacco to both active consumers and passive members of the pu blic. That will bring India in line with dozens of other nations where the cigarette industry is under unprecedented pressure to mend the way it does business. As lighters go off all over Kerala it may yet be that smokers nationwide have taken their last nicotine-stained gasps - at least in public.