1
 Research by the British scientist Sir
Richard Doll, 1940-50

2. Marketing
health : smoking and the discourse of public health in Britain,1945-2000,
Oxford university press

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3. The
western medical tradition, Cambridge university press

4.  Nazi chic?: Fashioning Women in the Third
Reich, Berg Publishers

5. Tobacco
consumption in Various Countries, London: Tobacco Research Council

 

 

15. The
Cigarettes and Other Tobacco Products Act, 2003

14. WHA39.14
Tobacco Free Initiative, WHO

13.
“Adoption of Framework Convention on Tobacco Control” American Journal of
International law.

12. WHO
Framework Convention on Tobacco Control (WHO FCTC)

 

 

The so called “right to smoke” is actually a
smokescreen. There is no constitutional right to
smoke. Therefore, advocates are free to seek enactment of new some free laws or
the amendment or repeal of existing laws that harm the public health despite
claims by their opponents invoking a right to smoke.

Conclusion:

This
act was enacted by the parliament to give effect to the Resolution passed by
the 39th World Health Assembly, urging the member states to
implement measures to provide non-smokers protection from involuntarily
exposure to tobacco smoke.15

B) The cigarettes and Other Tobacco Products Act, 2003
or COTPA, 2003

Deeply concerned by the current pandemic
of smoking and other forms of tobacco use which results in the loss of the
lives of at least one million human beings every year and in illness and suffering
for many more; calls for a global public health approach and action  now to combat the tobacco pandemic.14

The Thirty-ninth World Health Assembly,

2. Tobacco free initiative

The World
Health Organization Framework Convention on Tobacco Control (WHO FCTC) is
a treaty adopted by the 56th World Health Assembly held in
Geneva, Switzerland on 21 May 2003.12 It became the first World
Health Organization treaty adopted under article 19 of the WHO
constitution.13 The FCTC, is a agreement that seeks “to protect
present and future generations from the devastating health, social,
environmental and economic consequences of tobacco consumption and exposure
to tobacco smoke” by enacting a set of universal standards stating
the dangers of tobacco and limiting its use in all forms worldwide. 

1. Framework Convention
on Tobacco Control

A) Tobacco control is a priority
area for the World Health Organization (WHO):

 

11.
Constitution of India

            

 

Smoking
laws have been described as a type of sumptuary law, a law that attempts to
regulate habits of consumption, like the prohibition of alcohol and drug.

Legal initiatives:

In
an attempt to limit the extraordinary harm that tobacco smoke inflicts on
individuals and communities, advocates across the country are supporting
enactments of state and local smoke-free laws. Courts are quick to find that
smoke-free legislation is rationally related to a legitimate government goal,
since they have long held that protecting the public’s health is one of the
most essential functions of government. The realization of this fact marks the
origin of tobacco control.

Advocates
promoting smoke free legislation often encounter opponents who make the ominous
legal sounding argument: “You are trampling on my right to smoke.” The purpose
of this article is to debunk the argument that smokers have a special legal
right to smoke. The “fundamental right to privacy” is one category of liberty
that does receive special constitutional protection.  Smokers’ right proponents latch onto
this fundamental right to privacy, arguing that smoking is a private choice
about which the government should have no say. The fundamental right to privacy
does not include smoking. Some people argue that smokers make up a category
that deserves special protection against discriminatory laws that restrict
their ability to smoke at a time and place. However smokers are not a specially
protected group under the constitution. People are not born smokers; it is
still a behavior that people can stop.

–         
C. Everett Koop

“The
right of smokers to smoke ends where their behavior affects the health and
well-being of others”

If
NO, then are the law makers compromising with the smokers by not giving them
right to liberty? Is government trying to achieve the legitimate govt. goal by
safe guarding the rights of non-smokers?

The
directive principle of state policy under the Article 4711 considers
it as primary duty of the state to improve public health policy, so are the law
makers compromising with the rights of non-smokers? Is this injustice to the
people who have just been at the receiving end of the smoke? Is this preserving
the right to liberty for smokers?                                       

 

 

10. World Health Organization epidemic fact sheet, 2015

 9. In re Julie
Anne, 780 N.E. 2d 635, 659 (Ohio Com. Pl. 2002)

 8. Cipollone
vs. Liggett Group, Inc., 505 US. 504 (1992)

 7. Murli S.
Deora vs. Union of India and Ors on 2 November 2001

     of Uruguay , 19 February 2010

 6. Phillip
Morris Brand Sarl (Switzerland), Philip Morris Products S.A. (Switzerland) v.
Oriental Republic        

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

As
per the world health organization: “Smoking
kills more than 7 million people each year. More than 6 million are result of
direct smoking each year.”10.  This article seeks to answer the question
which has chalked upon again and again: “IS
SMOKING A RIGHT?” If YES, then WHO also stated that: “890000 deaths are results of passive smoking each year.”

 In a 2002 Ohio case involving custody of an
eight year old girl, the court banned the girl’s parents from smoking in her
presence.9

4. Non-smokers vs. Smokers

The
respondent cigarette manufacturers were responsible for the death of a smoker
in 1984, because they breached express warranties contained in advertising,
failed to warn consumers about smoking’s hazards, conspired to deprive the
public of medical and scientific information about smoking.8

 3. Smoker vs.
industry

                                                                                               
–  Supreme Court of India

“Tobacco is universally regarded as one of the major
public health hazards and is responsible directly or indirectly for an
estimated eight lakh deaths annually in the country”7

2. Non-smokers vs. The law makers

                                     -Carissa
Etienne, Director of the Pan American Health Organization.

“This decision is an acknowledgment of Uruguay’s
continued efforts to protect its population from tobacco use and tobacco smoke
from others.”6

1. Industry vs. the law makers:

Several
case laws portray the intricate circle of war involving permutation and
combination between the industries, the law makers, smokers and non-smokers.

Legal disputes:

After
German doctors became the first to identify the link between smoking and lung
cancer, Germany initiated a strong anti-tobacco movement3 and
led the first public anti-smoking campaign in modern history.4 Anti-tobacco movements
grew in many nations from the middle of the 19th century; the campaign in
Germany, was the most powerful anti-smoking movement in the world during the
1930s and early 1940s.5 The National Socialist leadership condemned
smoking5. The Nazi anti-tobacco campaign included banning
smoking in trams, buses and city trains, promoting health education.
After the Second World War, the German research
was effectively silenced due to perceived associations with Nazism. However,
the work of Richard Doll in the UK, who again identified the causal
link between smoking and lung cancer in 1952, brought this topic back to attention. Partial controls and
regulatory measures eventually followed
in most parts of the developed world, including partial advertising bans,
minimum age of sale requirements, and basic health warnings on tobacco
packaging.

Movements:

Smoking
can be dated back to as early as 5000 BCE and has been recorded in many
different cultures around the world. Early smoking evolved in association with
religious ceremonies. After European exploration and conquest of Americans, the
practice of smoking tobacco quickly spread to rest of the world. In the
realization of the fact that smoking causes life threatening diseases. During
the 20th century1,
it successfully managed to acquire negative portion in the society. Since then
there began a procession of various movements, legal disputes, followed by
legal initiatives and amendments.

Smoking is a practice in which a substance is burned and
the resulting smoke is breathed  in to be
tasted and absorbed into the bloodstream. Perception
surrounding tobacco and smoking has varied over time and place: holy and
sinful, sophisticated and vulgar, panacea and deathly health hazard. In some cultures, smoking is also carried out as a
part of various rituals, where participants use it to help
induce trance-like states that, they believe, it can lead them to
“spiritual enlightenment”.

–   R. J. Reynolds, 1990

“They got lips? We want them.”

x

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