R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF DECEMBER, 2017 PRESENT THE HON'BLE MR. JUSTICE B.S. PATIL AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA WRIT PETITION NO.34194/2016 (GM-RES-PIL) BETWEEN:
RAHUL JOSHI S/O SRI. SITARAM JOSHI, AGED ABOUT 45 YEARS, R/O 27, INDIRA NAGAR, TONK ROAD, JAIPUR – 302 018. ... PETITIONER [BY SRI SUDHARSAN SURESH, SRI K.V. DHANANJAY, SRI TEJASVI SURYA AND SRI T.SURYANARAYANA, ADVOCATES AND (SRI S.R.JOSHI AND SRI SARVESH JAIN, ADVOCATES APPEARED BEFORE THE RAJASTHAN HIGH COURT)] AND:
1. UNION OF INDIA THROUGH SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, C-WING, NIRMAN BHAWAN, NEW DELHI.
2. SECRETARY UNION OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, C-WING, NIRMAN BHAWAN, NEW DELHI.
3. STATE OF RAJASTHAN THROUGH PRINCIPAL SECRETARY, MEDICAL, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, BHAGWAN DAS ROAD, JAIPUR.
4. PRINCIPAL SECRETARY, MEDICAL, HEALTH AND FAMILY WELFARE DEPARTMENT, STATE OF RAJASTHAN, BHAGWAN DAS ROAD, JAIPUR.
5. RAJASTHAN ZARDA PAN MASALA VIKRETA SANGH THROUGH ITS EXECUTIVE MEMBER AND SECRETARY, 364, RAMGANJ BAZAR, JAIPUR.
6. FEDERATION OF KARNATAKA VIRGINIA TOBACCO GROWERS ASSOCIATION THROUGH ITS PRESIDENT, HAVING ITS OFFICE AT 927, POST OFFICE ROAD, PERIYAPATNA ROAD, MYSORE DISTRICT, KARNATAKA – 571 107.
7. THE RAJASTHAN PAN MERCHANT SANSTHAN THROUGH ITS MEMBER, 404, FOURTH FLOOR, USHA TOWER, NEAR JAIPUR TOWER, M.I.ROAD, JAIPUR – 302 001.
8. M/S.ARORA TOBACCO PVT. LTD., RAM NAGAR, PUSHKAR ROAD, AJMER, RAJASTHAN – 305 001. ... RESPONDENTS (BY SRI KRISHNA S. DIXIT, A.S.G. a/w ADITYA SINGH, S.R. DODAWAD, ADVs FOR R-1 AND 2; SRI ADITYA SONDHI, ADDL. ADV. GENERAL, a/w SRI VASANT V. FERNANDES, GOVT. PLEADER FOR R-3 AND R-4, (SRI R.B.MATHUR, HCGP FOR R-3 & 4 BEFORE RAJASTHAN HIGH COURT), SRI SHIVANGSHU NAVAL, FOR R-5 AND SRI SAJAN POOVAYYA, SR. ADVOCATE a/w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
THE JUDGMENT IN THIS PETITION HAVING BEEN RESERVED ON 03/03/2017 AND IT BEING LISTED FOR PRONOUNCEMENT TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:
O R D E R This writ petition is filed in public interest by a practicing advocate at Jaipur, Rajasthan State, being concerned with the ill-effects of tobacco and its products on human health and the State and Central Government not taking sufficient steps to safeguard the health of the people particularly, youth of India. The petitioner has filed the writ petition seeking the following prayers and interim prayers:-
“10. It is, therefore, humbly prayed that this writ petition may kindly be allowed (i) A writ, order or direction in the nature of mandamus commanding the respondents to immediately implement and enforce Cigarette and other Tobacco Products (Packaging and Labeling) of Amendment Rules, 2014 made by the Respondents in exercise of the powers conferred by Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution), Act, 2003;
(ii) A writ, order or direction in the nature of mandamus commanding the respondents to immediately frame, promulgate and implement plain packaging rules for cigarette and other tobacco products so as to effectively curb the menace of cigarette and other tobacco smoking which has detrimental effect on the life and liberty of the people of this country, (iii) A writ, order or direction in the nature of mandamus commanding the respondents to immediately prohibit the use of colour, imagery, corporate logo, trademarks from any and all cigarette and tobacco products and direct that necessary regulations be framed and implemented to have appearance of tobacco packets in standardized shape and colour;
(iv) Such order, Writ, direction to the Respondent Nos.3 & 4 to immediately prohibit the sale and distribution of cigarettes and other tobacco products till implementation of plain tobacco packaging in the State of Rajasthan;
(v) Such order, Writ, direction to the Respondent Nos.3 & 4 to immediately prohibit the sale and distribution of loose cigarettes and other tobacco products.
(vi) Such order, Writ, direction to the respondent Nos.3 and 4 for revocation of reduction of tax on sale of cigarettes and other tobacco products.
(vii) Such order writ, order or direction as this Hon’ble Court may deem just and proper in the circumstances of the case and in the interest of justice, be passed in favour of the petitioner;
(viii) Cost of the writ petition be awarded in favour of the petitioner.
11. Interim order:-
(i) The Respondent Nos.1 and 2 Union of India, Ministry of Health and Family Welfare may be directed to revoke the Corrigendum dated 26th March 2015 vide it has substituted sub Rule (2) of Rule 1 of the earlier notification dated 15th October 2014 which was to come into force w.e.f. 1st day of April,2015.
(ii) The Respondent Nos.3 & 4 State of Rajasthan be directed to immediately prohibit the sale and distribution of loose cigarettes and other tobacco products and revoke the reduction of tax on sale of cigarettes and other tobacco products.”
2. According to the petitioner, the immediate reason for filing the writ petition was to seek enforcement and implementation of Cigarettes and Other Tobacco Products (Packaging and Labeling) Amendment Rules, 2014 [hereinafter, referred to as “the Amendment Rules, 2014”] made under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter, referred to as “COTPA” for the sake of convenience).
3. The main grievance of the petitioner with regard to corrigendum dated 26/03/2015, issued by the Ministry of Health and Family Welfare (Department of Health and Family Welfare), is to the effect that the Amendment Rules, 2014 would come into force on such date, as the Central Government, may by notification in the Official Gazette, appoint. The corrigendum was issued to the earlier Notification dated 24/09/2014, which had notified that the Amendment Rules, 2014 would be effective from 01/04/2015. But by the corrigendum, the date of enforcement of the said rules became uncertain.
4. It is averred by the petitioner that he had earlier filed D.B.Civil.W.P.No.4543/1999 before the Rajasthan High Court inter alia, seeking prohibition of smoking of cigarettes in public places. During the pendency of that writ petition, the Rajasthan Prohibition of Smoking and Non-smokers Health Protection Act, 1999 was enacted and the aforesaid writ petition was dismissed as withdrawn.
5. It is further averred by the petitioner that while the Amendment Rules, 2014 made under COTPA are not being enforced further, the Rules and Regulations should also include standardized packing norms in the form of plain packaging, which would not attract a smoker or a potential smoker to cigarettes or other tobacco products. This is because, according to the petitioner, tobacco is responsible for the death of one in ten adults; that cigarettes contain harmful substances, which are suspected carcinogens. Smoking affects every organ of the body and is a leading cause of cancer, heart disease, respiratory disease and a range of other such conditions.
6. That the Central Government has enacted COTPA in the year 2003 pursuant to the Resolutions passed by the 39th and 43rd World Health Assemblies based on the Constitutional mandate contained in Article 47 of the Constitution regarding improvement of public health. That COTPA contains prohibitions as well as restrictions with regard to advertisement and sale of cigarettes and other tobacco products. That the restrictions are with regard to having a specified health warning on every package of cigarettes and other tobacco products. That pursuant to Section 31 of COTPA, rules have been framed to implement the object and intent of COTPA such as, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulations of Trade and Commerce, Production, Supply and Distribution), Rules, 2004.
7. Similarly, the Cigarettes and Other Tobacco Products (Packaging and Labeling) Rules, 2008 have been framed (“Packaging and Labeling Rules, 2008” for short). The Amendment Rules, 2014 have amended the Packaging and Labeling Rules, 2008. That the Packaging and Labeling Rules, 2008 have been implemented but they did not contain certain provisions which have been accepted by other Countries and therefore, the need for amending the said Rules arose. Consequently, the Amendment Rules, 2014 have been formulated and were to be enforced but by the corrigendum issued by the Union of India on 26/03/2015, it has postponed enforcement of Rules which was to be from 01/04/2015. Hence, one of the prayers sought in the writ petition is for their immediate implementation.
8. The petitioner has also sought for framing and promulgation of Rules pertaining to plain packaging of cigarettes and other tobacco products in order to curb the menace of smoking and chewing of tobacco, which has detrimental effect on the people of this country. The petitioner has sought for a standardized packaging of cigarettes and other tobacco products, so as to reduce their appeal and attraction to potential smokers. As a result, there would be negative connotations which would not attract smokers and particularly, the younger generation towards tobacco and its products. That in New Zealand, Canada and Australia, recommendations for plain packaging have been accepted and the same is being considered by the Parliament of United Kingdom. A consultation has also been held by the European Union vis- à-vis its members for the purpose of having plain packaging of cigarettes and other tobacco products. That the Allahabad High Court in its judgment dated 21/07/2014, passed in W.P.No.1078/2013 has taken judicial notice on plain packaging of tobacco products. It has held that if plain packaging is implemented in India, cigarettes and other tobacco products will cease to be a marketing tool for reinforcing brand image and from promoting smoking as a status symbol. The said judgment is in the case of Love Care Foundation vs. Union of India and another (W.P.No.1078 (M/B) of 2013) [Love Care Foundation]. That at present, in India, cigarettes are being packed in very attractive colours and the same are being displayed openly in shops. Such colourful packaging draws the attention of the youth towards smoking. Hence, it is necessary for the Union of India to frame plain packaging rules for cigarettes and other tobacco products. Also, a direction is sought for prohibition of use of colour, imagery, corporate logo, trademarks on such packaging. Further, a direction is also sought for prohibition of sale and distribution of cigarettes and other tobacco products till the implementation of plain tobacco packaging in the State of Rajasthan.
9. That, under Article 47 of the Constitution, the State has a duty to take steps in the matter of improving public health. But instead of notifying the Amendment Rules, 2014, the Government of India has issued corrigendum dated 26/03/2015 deferring the enforcement of the said Rules. That it is obligatory on the part of the State to take necessary steps to control consumption of cigarettes and other tobacco products, so as to minimize huge adverse effects on human health.
10. It is further averred that the State of Rajasthan has taken steps for reducing the rate of tax from 65% to 45% on sale of cigarettes and other tobacco products. Therefore, respondent Nos.3 and 4 be directed to revoke the reduction of tax on sale of cigarettes and other tobacco products.
11. The writ petition was presented on 29/06/2015. On 03/07/2015, a Division Bench of the Rajasthan High Court, stayed the operation of the corrigendum notified in the Gazette of India on 26/03/2015 by the Central Government inter alia, in the following terms:-
“15. After hearing learned counsel appearing for the petitioner, at length, and considering the research, which has been undertaken as well as the orders passed by the various High Courts and the Supreme Court, we find it imperative, and in the larger public interest, to stay the operation of the Corrigendum, notified by the Central Government in the Gazette of India, on 26th March 2015, by which, sub-Rule (2) of Rule 1 was substituted, providing that the Rules shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, which substituted the provision of Rule 1(2) of the Rules of 2014, to bring the Rules into force with effect from the 1st day of April,2015.
16. As a result of the interim order, the Rules of 2014, will come into force immediately, and will be enforced by the Central Government and the Government of Rajasthan.”
12. The writ petition was ordered to be listed on 17/08/2015. In the interregnum, certain applications were filed seeking impleadment in the proceedings and those applications were allowed on 06/08/2015 and the matter was ordered to be listed on 17/08/2015. On that date, certain other applications for impleadment were allowed and the writ petition was posted to 09/09/2015 and subsequently, on other dates. In the intervening period, on 04/05/2016, the Hon’ble Supreme Court passed an order in SLP.(C).Nos.10119-10121/2016 (Karnataka Beedi Industry Association vs. Union of India and others). The said order reads as under:-
“Heard learned counsel appearing for the parties.
Mr. Arvind P. Datar, learned senior counsel submits that the subject-matter of challenge in writ proceedings in which the impugned order has been passed pertains to the Constitutional validity of the Cigarettes and Other Tobacco Products (Packaging and Labeling) Amendment Rules, 2014 (hereinafter referred to as the Rules) framed by the Government of India and the same is pending before the Karnataka High Court.
Mr. Ranjit Kumar, learned Solicitor General has handed over a list of cases on the issue pending before various High Courts. It is seen from the list that most of the matters are pending before the Karnataka High Court and few of them are pending in Bombay, Gujarat and Delhi High Courts.
It has been contended before us by learned counsel appearing for the parties that all the matters which are pending before different High Courts be transferred to a particular High Court so that the matters can be heard and disposed of at a time.
In view of that, it is considered appropriate, at this stage, to transfer all the matters pending before the different High Courts to the Karnataka High Court.
We, therefore, transfer all matters pending before various High Courts, as referred to hereinabove, on the issue to the Karnataka High Court. We request the Hon'ble Chief Justice of the Karnataka High Court to constitute a Bench, which would dispose of the same within a period of six weeks from date. We further make it clear that the matters should be disposed of by the Principal Bench of the Karnataka High Court.
We have also been informed that the cases transferred include Public Interest Litigation petitions pending for implementation of the said Rules. In view of that, we would also request the Chief Justice of the Karnataka High Court to decide whether the cases transferred hereby would be taken up by a Division Bench or a Single Bench in accordance with the Rules of the said High Court.
Stay, if any, already granted by any High Court shall not be given effect to till the cases are finally disposed of.
We make it clear that any other order passed by any High Court including the order passed by this Court dated 06.05.2009 on the Interlocutory Applications filed in Writ Petition (C) No. 549/2008 with regard to the stay shall not stand in the way of the Karnataka High Court to decide the matter on merits.
The Secretary General of this Court is directed to send a copy of this order to the Registrar Generals of the concerned High Courts where similar matters are pending with a request to take necessary steps for sending the relevant records/documents to the Karnataka High Court within a period of two weeks from the date of receipt of copy of this order.
The Special Leave Petitions and the Writ Petitions stand disposed on the aforestated terms.”
13. Subsequently, on 17/05/2016, the Division Bench of the Rajasthan High Court transferred this writ petition pending before the said Court along with the Contempt Petition No.800/2015, which was ordered to be tagged along with the present writ petition, to this Court, which is renumbered as W.P.No.34194/2016. The relevant portion of the order dated 17/05/2016 reads as under:-
“Mr.Joshi, learned counsel appearing on behalf of the writ petitioner submits that as regards the writ petition is concerned, there cannot be any objection in the light of the order of the Apex Court and the writ petition deserves to be transferred to the Karnataka High Court in compliance thereof.
So far as contempt petition is concerned, counsel submits that let the contempt petition may be kept in abeyance, awaiting final outcome of the matters transferred to the Karnataka High Court for being examining on merits.
After we have heard the learned counsel for the parties, as regards D.B. Civil Petition (PIL) No.8680/2015 is concerned, it deserves to be transferred, in compliance of the order of the Apex Court, to the Karnataka High Court. At the same time, as regards D.B. Civil Contempt Petition No. 800/2015 is concerned, since vide order dated 28.07.2015, it has been ordered to be tagged along with the present writ petition, it will be appropriate to transfer the contempt petition to the Karnataka High Court, where the matters will go ahead, for final outcome of the writ petition, which now stands transferred to the Karnataka High Court. We consider it appropriate that the interim order passed by this Court, in the light of the order of the Apex Court dated 04.05.2016, be kept in abeyance and the contempt petition may also be transferred along with the writ petition to the Karnataka High Court, to be considered along with the writ petition on merits.”
14. In the circumstances, this writ petition has been heard by us along with the other writ petitions wherein, challenge is made inter alia to the Amendment Rules, 2014.
15. The Union of India – respondent Nos.1 and 2 has filed its affidavit and additional affidavit seeking appropriate orders in the writ petition.
16. Statement of objections has also been filed on behalf of State of Rajasthan. Rejoinder affidavits have been filed by the petitioner.
17. We have heard Sri Deepak Khosla and Sri Sudharsan Suresh, learned counsel for petitioner, learned Assistant Solicitor General Sri Krishna S. Dixit, for Union of India and Dr.Adithya Sondhi, senior advocate, Addl. Advocate General, State of Karnataka, who has been authorized to argue on behalf of the State of Rajasthan, Sri Sajan Poovayya, learned senior counsel for respondent No.6 and other counsel. We have perused the material on record.
18. At the outset, Sri Deepak Khosla, learned counsel for petitioner contended that the order of transfer of this public interest petition from Rajasthan High Court to this Court by the Hon’ble Supreme Court is a nullity inasmuch as the petitioner herein was not heard before this petition was transferred to this Court. Further, exercise of power by the Hon’ble Supreme Court under Article 139-A read with Article 136 is improper. He further attempted to contend that the filing of writ petitions by some of the tobacco manufacturers before this Court is itself improper as the writ petitions are not maintainable before this Court. It is on account of the pendency of those writ petitions before this Court that the Hon’ble Supreme Court transferred the cases pending before the other High Courts to this Court. Considerable time of this Court was lost on account of Mr.Khosla elaborating the aforesaid submission. Learned senior counsel and other counsel appearing for other parties as well as learned Asst. Solicitor General contended in unison that such arguments cannot be raised before this Court and that when the Hon’ble Supreme Court has transferred cases pending before various High Courts to this Court for a comprehensive hearing of the matters and in doing so, it had ordered for transfer of the Public Interest Litigation pending before the Rajasthan High Court also, no objection could be raised to the same. In support of his submission, learned Assistant Solicitor General, Sri Dixit relied upon Kartar Singh vs. State of Punjab [(1994) 3 SCC 569]. Further, our attention was also drawn to the fact that petitioner consented to the order of transfer and therefore, he is estopped from contending to the contrary.
19. At the outset, we observe that orders of the Hon’ble Supreme Court have to be understood and followed. The same cannot be interpreted to suit the convenience of any party much less by any other Court in the country. Having regard to the system of hierarchy of Courts in India and bearing in mind judicial discipline and propriety, we do not intend to even consider the aforesaid contention with regard to the order of transfer of this writ petition to this Court by the Hon’ble Supreme Court and proceed to consider this public interest writ petition on merits.
20. Continuing the arguments on behalf of the petitioner, Mr.Sudharsan Suresh, drew our attention to the prayers sought by the petitioner in the writ petition and contended that the endeavour of the petitioner is to seek directions from this Court in light of Article 47 of the Constitution and COTPA and the Rules made there under. That the catalyst for filing of the writ petition was issuance of the corrigendum dated 26/03/2015 thereby, giving a go by to the implementation of the Amendment Rules, 2014, with effect from 01/04/2015. Learned counsel contended that it is on account of the issuance of the corrigendum, which has the effect of postponing the enforcement of the Amendment Rules, 2014 that the petitioner has sought for enforcement and implementation of the said Rules.
21. He next contended that a direction may be issued to the Union of India and to other official respondents to frame, promulgate and implement plain packaging rules and other tobacco products in order to curb their menace so as to control their detrimental effect on human health. He contended that there must be a prohibition on the use of colour, image, corporate logo, trade mark etc., on the packages containing cigarettes and other tobacco products and that the appearance of the packets must be in standardized shape and colour. In this regard, learned counsel relied upon a judgment of the Allahabad High Court in the case of [Love Care Foundation]. He further drew our attention to Section 8(3) of COTPA to contend that object of that section is towards ensuring plain packaging of the tobacco products.
22. Learned counsel further submitted that the Rajasthan Government has reduced the rate of Value Added Tax (VAT) on cigarettes and other tobacco products and that the earlier rate of tax may be restored. He also drew our attention to the menace of sale of loose cigarettes de hors packaging and contended that the Rajasthan State Government be directed to prohibit the sale of loose cigarettes.
23. Elaborating the said contention, Sri Sudharsan Suresh, drew our attention to Proviso to Section 5(2) and Section 9(2) of COTPA and Rule 3(1) of the Rules, to contend that any material or matter which detracts from the specified health warning cannot be permitted to be printed on the package containing tobacco products. He further submitted that Section 8(3) of COTPA must be so interpreted that having regard to Section 7(2) which deals with specified health warning, would lead to prohibition of sale of loose cigarettes. That no tobacco product must be sold without carrying the specified warning and hence, there should be a ban on sale of loose cigarettes or tobacco products de hors the packet. He also drew our attention to the judgment of the Uttarkhand High Court with regard to sale of loose cigarettes and he concluded his arguments by submitting that the prayers sought by the petitioner in the Public Interest Litigation may be so moulded so as to implement COTPA and the Rules made thereunder.
24. Dr.Sondhi, appearing for State of Rajasthan, with reference to the statement of objections contended that the issue regarding reduction in the rate of VAT on cigarettes and other tobacco products is no longer res integra as by order dated 27/09/2016 another writ petition in the nature of a public interest litigation has been dismissed insofar as that prayer is concerned. Further, the State of Rajasthan has also issued a communication to all collectors of the Districts regarding prohibition of sale of loose cigarettes. He further contended that the Amendment Rules, 2014 are in force and are being implemented in the State of Rajasthan pursuant to the interim order dated 03/07/2015 passed in this writ petition by the Division Bench of the Rajasthan High Court. That the petitioner herein cannot seek any other prayer as against the State of Rajasthan and hence, he sought dismissal of the writ petition.
25. Learned Assistant Solicitor General also contended that in view of the Amendment Rules, 2014 being enforced and implemented, nothing further survives in the writ petition. That all other matters are in the realm of policy and that the petitioner cannot seek specified directions.
26. Learned senior counsel, Sri Sajan Poovayya, relying upon certain decisions of the Hon’ble Supreme Court, contended that Rajasthan High Court could not have by an ex parte order directed enforcement of Amendment Rules, 2014. Now that the Rules are in force, the writ petition would in substance, not survive for further consideration. Relying on certain decisions of the Hon’ble Supreme Court, he contended that Courts cannot direct making or enforcement of laws. That the Central Government has formulated the Amendment Rules, 2014, which have been assailed in the batch of writ petitions, which have been heard and reserved for orders by this Court. He therefore submitted that this writ petition would not survive for further consideration and the same may be dismissed.
27. Apart from the aforesaid submissions, learned senior counsel also contended that the petitioner is an advocate practicing at Rajasthan High Court. But the writ petition has not been filed in genuine public interest, but there are vested interests behind this petition which has been filed with oblique motives. That the writ petition has been filed at the behest by anti-tobacco activists and that the petitioner is seeking publicity by filing the present writ petition. Relying on certain judgments of the Hon’ble Supreme Court, learned senior counsel submitted that when the matter was being considered by the Parliamentary Committee on Subordinate Legislation, which had by then submitted its interim report, the present writ petition was filed seeking hasty enforcement of the Amendment Rules, 2014. As a result, the work of examining the said Rules commenced by the Parliamentary Committee could not be completed before enforcement of the said Rules.
28. Sri Vivek Kohli and Sri Rajeev Kumar Jain, learned counsel appearing for some of the petitioners contend that prayers 3 and 4 sought by the petitioner in this writ petition cannot detract from the writ petitions filed by petitioners in the other writ petitions challenging the Amendment Rules, 2014.
29. Sri Jain, learned counsel further contended that COTPA and the Rules made there do not prohibit and permit sale of loose cigarettes or beedis and that there is no ban on such sale. The Amendment Rules, 2014 is with regard to labeling and packaging of tobacco products. That the petitioner cannot seek prayers, which are not contemplated in the enactment or the Rules made there under.
30. Learned counsel for respondents submitted in unison that the writ petition be dismissed.
31. The citations referred to by learned counsel for the respective parties shall be adverted to during the course of this order.
32. Having heard learned counsel for parties, we would now proceed to consider the prayers sought by the petitioners in seriatam.
33. Firstly, the petitioner has sought a direction to implement the Amendment Rules, 2014 made under Section 31 of COTPA. In view of the ex parte order dated 03/07/2015, passed by the Division Bench of the Rajasthan High Court by which, the corrigendum dated 26/03/2015 has been stayed, the Amendment Rules, 2014 are enforced on account of a positive direction being issued. However, we also bear in mind the fact that the amendment made to the Labeling and Packaging Rules, 2008 by the Amendment Rules, 2014 are assailed in a batch of writ petitions filed by various cigarette companies and other persons. The constitutional validity of those rules is in issue and the same is being considered by us in a separate order. Suffice to say, prayer No.1 would no longer survive for consideration. At the same time, we also observe that the enforcement of Amendment Rules, 2014 as well as its implementation would be subject to the result of the writ petitions, which have been heard and reserved for orders.
34. Secondly, petitioner has sought a direction to Union of India and other official respondents to frame, promulgate and implement plain packaging rules for cigarettes and other tobacco products and a direction is also sought to prohibit the use of colour, imagery, corporate logo, trademarks on the package on all cigarettes and tobacco product so as to have the appearance of the tobacco packets in standardized shape and colour.
35. The point which arises for consideration with regard to the aforesaid prayers sought by the petitioners is, as to whether, Courts could direct the Central or State Governments or for that matter any authority to frame laws or rules, in other words, to make enactments or subordinate legislation. We categorically hold that it is neither desirable nor permissible, to transgress the boundaries or the limits within which Courts have to function so as to direct the other organs under the Constitution or statutory bodies such as, the legislature or executive to frame laws or make subordinate legislation. We think that it is a salutary principle which should be followed by the Courts to refrain from directing the legislature or the executive or any other body to enact Laws or frame rules. This is based on the primordial doctrines of separation of powers and checks and balances under our Constitution. In this regard, we are fortified by several dicta of the Hon’ble Supreme Court.
36. Learned senior counsel for respondent Nos.6 and 7 has drawn our attention to the following decisions in support of his submissions to the effect that Courts cannot direct the Parliament or Legislature of any state to enact or enforce laws nor can the executive be directed to frame subordinate legislation:-
(a) In A.K.Roy vs. Union of India [(1982) 1 SCC 271], a Constitution Bench of the Hon’ble Supreme Court held that it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament. The Parliament does not irretrievably lose its power to bring the amendment into force by reason of the empowerment in favour of the Central Government to bring it into force. It has been categorically held that Courts cannot issue a writ in the nature of mandamus to the Governments obligating them to bring into force certain provisions of any enactment. That in COTPA, when Parliament has left it to the executive to frame Rules under Section 31 of the said Act, this Court cannot direct as to in what manner the rules could be framed or what should be the content of the rules. Petitioner also cannot seek a direction at the hands of this Court to the Central Government to enforce the Rules. It is for the petitioner to voice his suggestion before the Central Government in any manner known to law.
(b) Following the decision in A.K.Roy’s case in Aeltemesh Rein vs. Union of India and Others, [(1988) 4 SCC 54], it has been held that Courts cannot issue a writ in the nature of mandamus directing the Central Government to bring any provision into force.
(c) Further, in State of Jammu and Kashmir vs.
Zakki [1992 Supp. (1) SCC 548], it has been held that a writ of mandamus cannot be issued to the Legislature to enact a particular legislation. The same holds good even when the executive is to exercise its power to make rules, which are in the nature of subordinate legislation. The power to make rules is legislative in nature. Hence, a direction cannot be issued to the State Government to make rules in accordance with the proposal made by the High Court.
37. Further, the prayer sought with regard to framing and implementation of Plain Packaging Rules is a matter which comes within the realm of policy. Courts cannot direct the executive to adopt a particular policy while dealing with any subject matter. It is for the executive to take a decision as to whether plain packaging must be implemented vis-à-vis the packaging and labeling of cigarettes and other tobacco products. Hence, no direction can be issued in that regard. Hence, Prayer Nos.2 and 3 cannot be granted to the petitioner. Similarly, Prayer No.4 which seeks prohibition of sale and distribution of cigarettes and other tobacco products till implementation of the plain tobacco packaging in the State of Rajasthan or for that matter elsewhere cannot be granted. It does not fall within the purview of the Court to direct such a prohibition or grant such prayer as sought by the petitioner. It is for the Union of India or the State Governments if they are so authorized in Law, to take a decision in the matter having regard to the ground realities and in accordance with law. It is however, brought to our notice that in the case of Love Care Foundation, the Division Bench of Allahabad High Court has directed that the Government of India must consider to implement the scheme of plain packaging at the earliest by considering the feasibility of the same vis-à-vis the cigarettes and other tobacco products.
38. In the same vein, we say that prohibition of sale and distribution of loose cigarettes cannot be ordered by the Courts, as it is for the Union of India and the State Governments and other authorities to take a decision in the matter and accordingly, to take measures.
39. However, learned senior counsel appearing for the State of Rajasthan, has drawn our attention to letter dated 23/01/2015 issued by the Additional Mission Director, National Health Mission, Director (IEC) and Joint Secretary, Directorate of Medical, Health and FW Services, State of Rajasthan to the Collector, Ajmer regarding prevention of sale of loose cigarettes. It is submitted that similar communications have been addressed to the other District Collectors. Hence, no direction need be issued in this connection.
40. As far as revocation of repayment of tax on sale of tobacco products is concerned, we are informed by Dr.Sondhi, learned senior counsel appearing for the State of Rajasthan that the matter is already covered by Order dated 27/09/2016 passed in W.P.No.9123/2015 (Indian Asthama Care Society & Another vs. State of Rajasthan). The said writ petition has been dismissed by holding that in a petition filed under Article 226 of the Constitution, it is not desirable to issue any direction to the State Government for imposition of tax at a particular rate. Hence, it is unnecessary to consider the said issue in this writ petition.
41. In fact, learned senior counsel appearing for respondent Nos.6 and 7, has brought to our notice, order passed by a Division Bench of the Allahabad High Court headed by the Hon’ble Chief Justice in Love Care Foundation, which is a Public Interest Litigation. In that writ petition, a direction was sought to prohibit/ban the manufacturing, storage and sale of all forms of tobacco products within the territory of India. While considering the writ petition in light of COTPA and Packaging and Labeling Rules, 2008, it was observed that the said Rules do not provide that cigarettes must also contain the warning. Hence, the plea that since warnings are not available on loose cigarettes and beedis, their sale should be banned and only sealed package which contain large number of cigarettes and beedis should be sold did not appeal to the Bench. Hence, no direction was issued with regard to the prohibition of sale of loose cigarettes, as in the opinion of the said Court such a direction could lead to greater consumption even amongst those who generally buy loose cigarettes and beedis for occasional smoking. It was also observed that Courts cannot interfere with the policy or law making domain reserved for other agencies of the State. At the same time, the Allahabad High Court expressed that the Legislature and the executive while considering any further policy with regard to tobacco consumption “shall act in a manner not governed by sole concern for revenue but shall also pay due attention to the health of the general public. We have no difficulty in observing and directing the State Authorities to spend a reasonable good amount of money to spread awareness amongst the masses, particularly the younger generation including students regarding the ill effects of tobacco consumption. Public awareness of the evil arising from tobacco consumption and public taking care of its ill effects is more effective than mere formulation of law and rules.”
42. Learned senior counsel Dr.Sondhi, appearing for the State of Rajasthan, has drawn our attention regarding prohibition of sale of loose cigarettes. If that is so, then, we hope that the said circular would be implemented in letter and spirit.
43. In the circumstances, we find that this writ petition, which is filed in public interest, would not survive for further consideration and is hence, disposed. No costs.
Sd/- JUDGE *mvs Sd/- JUDGE