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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(ORIGINAL JURISDICTION)

W. P. No._____ / 2014

BETWEEN:

Cancer Patients Aid Association

A Registered Society,

Having its registered office at:

5, Malhotra House, Opp. G.P.O.

Mumbai – 400 001

Also at:

746, 8th Cross, 10th Main,

2nd Stage, Indiranagar,

Bangalore – 560038

Represented by its Secretary ...PETITIONER

AND

1. The State Government of Karnataka

Health and Family Welfare Department

Directorate of Health and Family Welfare Services

Anand Rao Circle

Bangalore - 560009

Represented by its Principal Secretary

2. The State Government of Karnataka

Department of Agriculture

Seshadri Road, K.R. Circle

Bangalore 560001

Represented by its Commissioner

3. The Union of India

Ministry of Commerce and Industry

Udyog Bhavan

New Delhi – 110107

Represented By its Chief Secretary

4. The Union of India

Ministry of Health and Family Welfare

Nirman Bhavan, Maulana Azad Road

New Delhi – 110108

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Represented By its Chief Secretary

5. The Tobacco Board

Having its headquarters at:

G.T. Road, Srinivasarao Thota,

Guntur - 522 004

Andhra Pradesh

Represented by its Chairman

6. The Karnataka State Anti-Tobacco Cell

Anand Rao Circle

Bangalore - 560009

Represented by its Chair Person ...RESPONDENTS

MEMORANDUM OF WRIT PETITION UNDER ARTICLES 226 AND 227 OF THE

CONSTITUTION OF INDIA

The Petitioner above-named most respectfully submits as follows:

1. This Petition is filed as a public interest litigation by the Petitioner against the

granting of subsidies by the Respondents for tobacco farming, which incentivises

tobacco growing instead of adhering to the Respondent Union Government’s

obligations under the Framework Convention on Tobacco Control (“FCTC”) by

way of stopping subsides to tobacco farmers and to find alternatives for tobacco

farming. On the one hand, the State Government, through its Health and Family

Welfare Department seeks to regulate tobacco consumption under the Cigarettes

and Other Tobacco Products (Prohibition of Advertisement and Regulation of

Trade and Commerce, Production, Supply and Distribution) Act (“COTPA”), as it

is highly injurious to public health and is one of the leading causes of cancer

deaths in India. On the other hand, the 5th Respondent Tobacco Board

established under the Tobacco Board Act 1975, continues to provide subsidies

for tobacco farming, with the support of the 2nd Respondent State Government’s

Department of Agriculture and the 3rd Respondent, the Union Government’s

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Ministry of Commerce and Industry, which is completely contradictory to COTPA

and the Respondent Union Government’s obligations under the FCTC. Hence

this petition.

ARRAY OF PARTIES

2. The Petitioner is the Cancer Patients Aid Association (“CPAA”). The CPAA is a

registered charitable non-governmental organization working towards the Total

Management of Cancer as a disease, which includes: (a.) Spreading awareness

on the dangers inherent in various accepted social practices including the

practices of smoking and chewing of tobacco, which are responsible for

approximately 70% of cancers in India; (b.) initiating steps for the early detection

of cancer; and (c.) providing complete assistance to cancer patients beyond that

given by the medical profession, that is, taking a holistic approach and not

attacking the malignancy in isolation. Established in 1969, the CPAA has a

tradition of untiring service to needy cancer patients from all over India, and even

neighbouring Bangladesh, Bhutan, Nepal and Pakistan. CPAA is an empathetic,

reassuring, non-medical presence that has supported the treatment and overall

needs of more than 40,000 cancer patients. CPAA has a presence in Mumbai,

New Delhi, Bangalore and Pune. The CPAA has been taking up several causes

for regulation of tobacco use, and has filed petitions for the implementation of

tobacco laws and regulations in the past as well since tobacco is one of the

leading causes of lung cancer.

3. The Respondent No.1 is the State Government of Karnataka represented

through the Department of Health and Family Welfare and is responsible for the

implementation of COTPA within Karnataka.

4. The Respondent No. 2 is the State Government of Karnataka represented

through the Department of Agriculture and is responsible for coordinating the

implementation of the subsidies from the Tobacco Board to tobacco growers.

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5. The Respondent No. 3 is the Ministry of Commerce and Industry under the

Central Government. It is under this Ministry that the Respondent No. 5 Tobacco

Board has been set up.

6. The Respondent No. 4 is the Ministry of Health and Family Welfare under the

Central Government. This Ministry is responsible for all public health policies

including tobacco related policies and the implementation of the COTPA and

FCTC.

7. The Respondent No.5 Tobacco Board is set up under the Tobacco Board Act

1975, and is involved in various functions including promotion of tobacco and

grants subsidies to tobacco farmers annually.

8. The Respondent No.6 is the Karnataka State Anti-Tobacco Cell, set up mainly to

ensure implementation of the COTPA.

BRIEF FACTS:

9. Tobacco is a leading cause of death globally. According to the World Health

Organization, the direct use of tobacco kills an estimated 5.4 million people

worldwide in a year from lung cancer, heart diseases, tuberculosis and other

illnesses and every fifth person dying of tobacco related causes is an Indian. An

estimated additional 600,000 people a year die from second hand smoke.

Tobacco use is a risk factor for six of the eight leading causes of deaths in the

world. According to a report published by the Ministry of Health and Family

Welfare, the total economic costs (direct and indirect) attributable to tobacco use

from all diseases in India in 2011 for persons aged between 35 and 69 amounted

to Rs. 1,04,500 crores.. Conservative estimates of tobacco attributable deaths in

India are about 1 million a year. Of the dead, about 70% (90,000 women and

580,000 men) will be lost during the productive periods of their lives—between

the ages of 30 and 69 years. It has been estimated by the Tobacco Control

Policy Evaluation Project India that smoking will lead to 1.5 million deaths in

2020, based on the study by Murray CJ, Lopez AD.eds. “The global burden of

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disease: a comprehensive assessment of mortality and disability from diseases,

injuries and risk factors in 1990 and projected to 2020.”

(A copy of the article by Prabhat Jha and others titled “A Nationally

Representative Case-Control Study of Smoking and Death in India” published in

the New England Journal of Medicine in March 2008 is annexed herein and is

marked as ANNEXURE – A)

(A copy of the executive summary of the Report entitled, “Economic Burden of

Tobacco Related Diseases in India” published by the Ministry of Health and

Family Welfare, Government of India is annexed herein and is marked as

ANNEXURE – B)

10. It is a well-established and accepted fact that tobacco use causes various

diseases including cancer such as mouth and lung cancers, vascular diseases

such as coronary heart disease, stroke and sub-clinical arteriosclerosis,

respiratory diseases such as chronic obstructive pulmonary disease and

pneumonia and adverse reproductive effects. These facts have been established

in the Report on Tobacco Control in India supported by the Ministry of Health and

Family Welfare, Government of India, the World Health Organization and the

Centre for Disease Control and Prevention, USA in 2004. According to this study,

it is predicted that India will have the fastest rate of rise in deaths attributable to

tobacco in the first two decades of the 21st century.

(A copy of the relevant excerpts from the Report on Tobacco Control in India, by

the Ministry of Health and Family Welfare, Government of India, is annexed

herein and is marked as ANNEXURE – C)

11. Given this background as to the dangers of tobacco use, the Cigarettes and

Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade

and Commerce, Production, Supply and Distribution) Act (“COTPA”) was enacted

in 2003, which banned smoking in public places, banned sale of cigarettes and

tobacco products to minors and strictly regulated all advertising, promotion and

sponsorship of tobacco.

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Following COTPA, the Respondent Union of India also signed and ratified the

“Framework Convention on Tobacco Control” (“FCTC”) by the World Health

Organization. Though 179 countries are signatories to the FCTC, the reality is

that there are significant differences among countries in terms of observance of

the protocol in letter, spirit and implementation of control mechanisms for

reducing consumption of various smoke and smokeless tobacco products. In

countries such as Turkey or Uruguay where the government has demonstrated a

strong commitment to implementing FCTC comprehensively, there have been

marked decreases in tobacco consumption but other countries continue to see

increases in consumption where governments have failed to take adequate

action. Some countries have reported negative growth in tobacco use but

tobacco companies continue to show improved annual profits.

I. GROWTH OF TOBACCO FARMING

12. According to the Food and Agricultural Organization, India was the second

largest producer of tobacco leaf after China in 2012. The production of tobacco

leaf in India has increased over the last decade. In 2002, India produced 550,000

metric tonnes of tobacco leaf. By 2012, production increased by 37% to 830,000

tonnes. The states that are the largest producers of tobacco in India are Andhra

Pradesh and Karnataka.

(A copy of the excerpts from the FAO Statistical Database 2012 is annexed

herein and is marked as ANNEXURE – D)

13. It is submitted that in low- and middle-income countries such as India, where a

significant amount of tobacco farming takes place, it contributes to

malnourishment and health hazards to those working in tobacco farming, a very

large number of whom are women and children. Tobacco farming contributes to

malnourishment of children and populations as more and more fertile land is

used to grow tobacco in place of food. Virginia tobacco grows well on black soil

and replaces cotton, cereals and vegetables, affecting thereby the food security

of the growers. Women and children constitute a huge proportion of workers who

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work in tobacco fields and later in the manufacturing process, handling tobacco

leaves. Women constitute some 76% of total employment in bidi manufacturing in

India. Of, around 5.5 million people who hand roll bidis, 85% are women and

children. Often children of families growing and working with tobacco drop out of

schools to serve as domestic help.

(A copy of the Third Implementation Report in regard to FCTC by the

Government of India is annexed herein and is marked as ANNEXURE – E)

(A copy of relevant excerpts from the research paper “Tobacco and poverty:

Observations from India and Bangladesh” published in the Second Ed. PATH

Canada is annexed herein and is marked as ANNEXURE – F)

(A copy of the research paper “Tobacco cultivation and its impact on food

production in Bangladesh” published by UBINIG: Dhaka is annexed herein and is

marked as ANNEXURE – G)

14. In addition to the above harms, tobacco growing has a detrimental effect on the

environment and its resources. A recent study from Karnataka revealed that

nearly 8 Kg of wood is required to cure one Kg of tobacco. This study estimated

that Karnataka required nearly 700,000 tonnes of fuelwood per year and that

about 38,000 tonnes of this wood comes directly from forests every year.

According to one estimate, nearly 70 million tonnes of paper is used for wrapping

of cigarettes and tobacco products with its implications on use of wood. Hence,

tobacco growing also leads to deforestation. In addition to this, a heavy use of

several chemical pesticides and fertilizers is needed and prevalent in tobacco

farming. Apart from the health hazards to tobacco farmers and those (including

many children) involved in dealing with tobacco crops, these toxic chemicals end

up in soil, rivers and other waterways as well as the food chain. Tobacco

cultivation sucks nutrients like, phosphorus, nitrogen and potassium at a much

faster rate than many other major crops leading to soil degradation and heavy

dependence on fertilizers.

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(A copy of the research paper “Tobacco Curing and Fuel Efficiency in Karnataka,

India” published by South Asian Network for Development and Environmental

Economics is annexed herein and is marked as ANNEXURE – H)

II. THE TOBACCO BOARD AND SUBSIDIES TO TOBACCO FARMING:

15. It is ironical that while on one hand the grave hazards from tobacco growing and

consumption to the environment and health of the population are well

documented and the Respondent No.3 Ministry of Health and Family Welfare of

the Union Government has brought in measures to reduce tobacco use, on the

other hand another arm of the Union Government also supports and promotes

tobacco cultivation. The Respondent No. 4, Ministry of Commerce and Industry

of the Union Government and Respondent No.5 Tobacco Board have actively

helped the tobacco industry grow through incentives. In 2003, the United Nations

found that India was generally subsidizing tobacco farmers through various forms

of support, which directly or indirectly subsidized the tobacco industry.

Additionally, public funds of at least Rs. 3,500 crores have also been used to

directly invest in the tobacco business despite the government spending between

Rs. 27,000 and Rs. 30,000 crores of money on public health and treatment of

diseases attributed to tobacco consumption. .

(A copy of excerpts from the research paper entitled “Issues in the global tobacco

economy: Selected case studies” published by the Food and Agriculture

Organization of the United Nations is annexed herein and is marked as

ANNEXURE – J)

(A copy of a newspaper article from the Indian Express titled, “RTI reveals LIC’s

Huge Investment in Tobacco Companies, dated October 15, 2011 is annexed

herein and is marked as ANNEXURE – K).

(A copy of a newspaper article from The Hindu titled, “Authorities urged to make

Dasara tobacco-free,” dated September 9, 2014 is annexed herein and is marked

as ANNEXURE-L).

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16. The biggest hurdle in reducing tobacco farming and growth of tobacco is the

existence of the 5th Respondent Tobacco Board. The 5th Respondent was

established through the Tobacco Board Act, 1975 when COTPA was still not in

force. One of the functions of the 5th Respondent under the Tobacco Board Act

under section 8(1) is “to promote, by such measures as it thinks fit, the

development under the control of the Central Government of the tobacco

industry.”

17. It is submitted that the 5th Respondent Tobacco Board has been giving out huge

subsidies to tobacco growers all over the country and to a substantial extent in

Karnataka, which accounts for 42% of the flu cured tobacco variety grown in

India. The 5th Respondent Tobacco Board provides subsidies to

SC/ST/Women/Small & Marginal and Others in respect of extension services

through supply of inputs, farm mechanisms, fertilizers and equipment for

improving yield and quality of tobacco, improving of curing practices, and

extension programs to help produce quality crop that attracts the remunerative

prices, as shown below:

Sl. No. Name of the Scheme No. of Beneficiaries Rs. In Lakhs

1. Farm Mechanisation 8751 127.94

2. Improving Yield & Quality of FCV tobacco

6064 75.63

3. Improvement of curing practices

7533 60.41

4. Model Project Area

26213 28.42

Total 48561 292.40

(A copy of the 5th respondent’s Subsidy Programmes budget for the year 2009-10

is annexed herein and is marked as ANNEXURE – M)

18. It is further submitted that the Respondent authorities provide substantial

incentives to tobacco farmers through direct and indirect subsidies relative to

other crops. The 3rd Respondent Union Government in its Outcome Budget for

2013 – 2014 refers to tobacco being an important commercial crop for India.

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Subsidies and support to tobacco farmers are largely limited to the flue-cure

Virginia (FCV) tobacco, which enjoys government support in terms of facilities,

regulated production, marketing, research, dissemination of information, sales

and export promotion. Further, a well organised marketing system by the

Tobacco Board ensures that tobacco farmers get paid much more promptly than

farmers growing other crops. In addition, the Union Government and the Tobacco

Board each year announce the minimum support price to protect the interests of

FCV growers. Tobacco is one of the crops (the others being tea, coffee and

rubber) that are covered under the Respondent Union Government’s Price

Stabilization Fund Scheme. The purpose of this scheme is to protect and provide

financial relief to growers of these crops when the price falls below a certain

level. This amounts to the Respondent authorities promoting tobacco growing

rather than encouraging tobacco farmers to switch to other crops.

(A copy of the Report “Case Study of Tobacco Cultivation and Alternate Crops in

India,” February 2007, published by the Ministry of Family Health and Welfare is

annexed herein and marked as ANNEXURE – N),

(A copy of excerpts from the Outcome Budget for 2013 – 14 prepared by the

Department of Commerce, Government of India that describes the Price

Stabilization Fund Scheme and the promotion of tobacco growing through the

Tobacco Board is annexed herein and marked as ANNEXURE – P)

19. The Petitioner submits that the global trend has moved towards reduction of

government support for tobacco growing through subsidies. Other countries

such as the United States will have phased out tobacco subsidies by the end of

2014 through a 10-year program aimed at transitioning farmers off tobacco

cultivation. The Bangladesh government began withdrawing subsidies in 2010

and their Central Bank was ordered not to provide loans to tobacco farmers to

discourage tobacco farming in reaction to a food crisis and health concerns. The

World Bank has also recognized decreasing tobacco farming subsidies as one of

the challenges for tobacco control in the 21st century.

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(A copy of an article from the Science Daily titled “Global tobacco report outlines

21 challenges for 21st century,” dated January 22, 2010 (citing a report Thomas

Glynn et al., “The Globalization of Tobacco Use: 21 Challenges For The 21st

Century” (2010)) is annexed herein and is marked as ANNEXURE - Q)

20. The provision of subsidies to tobacco farmers by the 5th Respondent Tobacco

Board is completely against the provisions of the COTPA. The Tobacco Board

supplies subsidies and market services to tobacco farmers while the Respondent

State and Central Governments discourage the use of tobacco under the COTPA

because of the well-documented adverse health effects that it has on the public.

The COTPA places restrictions on the advertising, selling, and use of tobacco

products. India has also ratified the FCTC, which sets out strict guidelines on

diminishing and controlling tobacco use worldwide. In fact, one of the aims under

the FCTC is to find viable alternatives for tobacco farmers so that they may be

transitioned to other options in agriculture, which would reduce tobacco growing

and, as a consequence, curb, the increased consumption of tobacco. It is

submitted that the 4th Respondent Health Ministry engaged the Central Tobacco

Research Institute for a pilot program in which it looked at viable alternatives for

bidi and chewing tobacco farmers in 2009. However, this was only targeted at

bidi and chewing tobacco, which make up only a small share of tobacco

cultivation in India. As stated above, state support for tobacco growing is largely

with respect to FCV growers.

(A copy of the Press Release dated 21st January 2009 is annexed herein and is

marked as ANNEXURE - R)

21. It is submitted that tobacco subsidies and incentives and support to tobacco

growers are against the basic principles and obligations of the Respondent Union

of India under the Framework Convention on Tobacco Control (“FCTC”) to which

India is a party. Parties to the FCTC adopted guidelines for implementing Art.

5.3, which relates to the protection of public health policies on tobacco control

from the commercial and other vested interests of the tobacco industry. In the

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guidelines for implementing Art 5.3, it is plainly stated under the seventh

recommendation, for member states to “not give preferential treatment to the

tobacco industry.” Additionally, the guidelines to Art. 17 of the FCTC obligates

member states to promote economically-viable alternatives for tobacco farmers

rather than entrenching them into tobacco farming with subsidies. Finally, Art. 18

of the FCTC charges members with having due regard to protecting the health of

tobacco farmers and the environment. Incentivizing tobacco farming through

subsidies would be contradictory to Art. 18 since cultivating tobacco has various

negative effects on the farmers and the farm land. Thus, in the interests of public

health, the health of tobacco farmers and also the environment, it is imperative

that tobacco subsidies and incentives by the Respondents are stopped.

22. It is submitted that the very continuance of the Tobacco Board Act 1975 goes

against the principles of the promotion of public health through the COTPA. The

Tobacco Board Act was enacted in 1975 and it was set up with its stated

objective for the development of the tobacco industry under the control of the

Union. The Act set up the 5th Respondent Tobacco Board (thereinafter referred to

as the “Board”) having its head office at Guntur, Andhra Pradesh. The functions

of the Board are enumerated under S. 8 and sub section (1) clearly reads “It shall

be the duty of the Board to promote, by such measures as it thinks fit, the

development under the control of the Central Government of the tobacco

industry.” These ‘measures’ include providing for the regulation of the production

and curing of virginia tobacco, keeping a close eye on national and international

tobacco market prices and fluctuations, maintaining and improving current

tobacco markets both in and outside India, prescribing minimum prices in order to

prevent unhealthy competition amongst the exporters, regulating the Indian

tobacco market, providing useful information to tobacco growers, dealers and

exporters, purchasing Virginia tobacco from dealers if it is considered necessary

in the interest of the growers and disposing the same either in India or abroad,

promoting the grading of tobacco at the level of growers, maintaining the registry

of tobacco and tobacco seedling farmers, and finally, sponsoring, assisting,

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co-ordinating or encouraging scientific, technological and economic

research for the promotion of tobacco industry.

23. These objectives of the Tobacco Board Act 1975 are in complete contradiction

and opposition to the new and subsequent legislation, being the COTPA which

was brought about in 2003 for the regulation of tobacco consumption, and aims

to protect public health. The Preamble of the COTPA states that it is “for the

regulation of trade and commerce in, and production, supply and distribution of,

cigarettes and other tobacco products and for matters connected therewith or

incidental thereto… AND WHEREAS it is expedient to prohibit the consumption

of cigarettes and other tobacco products which are injurious to health with a view

to achieving improvement of public health in general as enjoined by Article 47 of

the Constitution”.

24. It is submitted that the 5th Respondent Tobacco Board has also not effectively

maintained the registry of tobacco farmers, thereby allowing illegal tobacco

farming to run amuck. High registry fees and complicity of the Board of allowing

the sale of illegally grown and cultivated tobacco at public auctions lend to the

illegal tobacco farming issue. The Board charges a fee of 0.4 hectare of land for

registering. The penalty for growing tobacco without registering is imprisonment

for up to two years, a fine which may extend to five thousand rupees, or both.

Despite these tools, illegal tobacco farming occurring outside of the radar of the

Board remains rampant. It is generally known that a lot of unauthorized farming

of tobacco happens in the state of Karnataka. By the year 2002, Karnataka had

about 18400 registered tobacco farmers while more than 16,000 unregistered

tobacco farmers. According to the Board in the year 2012-2013, the number of

registered farmers in Karnataka stands at 42,289 with the amount of unregistered

farmers being unknown. Undetectable tobacco farming directly harms the

effectiveness of implementing COTPA, the FCTC, and other tobacco control

legislation.

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25. In conclusion, the main purpose of this Act is to promote the tobacco industry by

way of the Board established under it. The Board provides for the establishment

of a Tobacco Board empowered with a variety of powers, among them being by

way of Section 8(2)(i) to sponsor and encourage the promotion of the tobacco

industry, which is irreconcilable with COTPA. This Act is in complete violation of

the COTPA which is a beneficial social legislation that aims to regulate the use

and consumption of tobacco, prohibits the advertisement and promotion of

cigarettes and other tobacco products and regulates the trade and commerce,

production, supply and distribution of the same throughout India in the interest of

public health. The COTPA under Section 5, places a complete ban on the

promotion of the use or consumption of cigarettes or any tobacco product or any

trade mark or brand name of the same either under contract or otherwise.

26. On September 10, 2014, the Petitioner submitted a representation letter to the 3rd

Respondent Ministry of Commerce and Industry, the 1st Respondent, the State

Government of Karnataka through its Health and Family Welfare Department and

the 5th Respondent Tobacco Board to stop all forms of subsidies and incentives

for tobacco growing and to provide assistance and support for tobacco farmers to

switch to alternative crops. However, the Petitioner received no response of any

kind to this representation, and subsidies are continuing to be granted to tobacco

growers.

(A copy of the Representation Letter, dated September 10, 2014, sent by the

Petitioner to the 1st, 3rd and 5th Respondents is annexed herein and marked as as

ANNEXURE – S)

27. The Petitioner has no other efficacious alternative remedy but to approach this

Hon’ble Court and has filed this petition on the following grounds. The Petitioner

has not filed any other Petition arising out the same cause of action in this

Hon’ble Court.

GROUNDS

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28. THAT the non-implementation of the COTPA and the FCTC in relation to banning

tobacco subsidies and allowing the promotion of tobacco through the Tobacco

Board under the Tobacco Board Act 1975, amounts to a clear violation of the

statutory provisions and the right to life and health protected under Articles 21

and 47 of the Constitution.

29. THAT in the interest of public health, it is imperative that tobacco subsidies and

incentives for tobacco growth are immediately stopped. Tobacco causes nearly

a million preventable deaths each year – 5.4 million from direct tobacco use and

about 60,000 deaths caused from second hand tobacco smoke. Tobacco kills up

to half its users with a significant number of users in middle-income countries

such as India. There is no justification for State support for a product which is

this harmful to the public health. Since the government has a duty to uphold the

health and safety of the public, the Respondents’ support for tobacco farming in

the form of subsidies should be halted.

30. THAT, even economically, there is no justification for the continuance of any

subsidies for tobacco farming. Farming subsidies typically are used to adequately

value farm products which provide a social benefit; such as, food security,

environmental protection and sustainable development, etc. However, tobacco

does not provide such positive externalities. To the contrary, virtually all tobacco

will be processed into harmful products, which will lead to various other costs to

the public and hence deserves the intervention of this Hon’ble Court.

31. THAT the actions of the 4th Respondent Tobacco Board in providing subsidies as

incentives for tobacco farming would be in direct contravention of the basic object

of the COTPA which is to promote public health and as the COTPA is a

subsequent legislation, the same would override any provisions of the Tobacco

Board Act 1975 under which the Respondent No. 4 Board was set up, which are

contrary to COTPA by the concept of implied repeal. Under the concept of

implied repeal and according to the legal principle of “leges posteriores priores

contrarias abrogant” since the COTPA of 2003 was enacted after the Tobacco

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Board Act of 1975, any conflicting provisions of the prior act being the Tobacco

Board Act 1975 will be repealed. Therefore, the actions of the 4th Respondent

Tobacco Board in providing tobacco subsidies cannot be sustained.

32. THAT the right to health is implicit in the right to life and liberty granted under

Article 21 of the Constitution. The scope and the ambit of the right to health came

up for consideration before the Hon’ble Supreme Court in the matter of Murali

Deora v. Union of India in year 2001, (2001, 8 SCC 756,768) and the Supreme

Court held that the Fundamental right guaranteed under Article 21 of the

Constitution of India, inter alia, provides that no one shall be deprived of his life

without due process of law and that a non smoker cannot be afflicted by various

diseases including lung cancer or of heart, only because he is required to go to

public places. Such right to life would be violated if the subsidies provided for

tobacco farmers are not banned as they would lead to increasing and

incentivising tobacco growing, thus leading to endangering the lives and health of

the public.

33. THAT due to harmful effects caused by the use of tobacco on the health of

people and further due to the rising use of tobacco, the COTPA should be

enforced in letter and spirit. Instead of strictly it, the Respondent Tobacco Board

is violating it and is providing incentives for tobacco farming, which is directly in

contravention of the provisions of the COTPA and also the mandates of Article 21

of the constitution to protect the right to health and ban the promotion of tobacco.

34. THAT the right to health under Article 21 was considered by the Hon’ble High

Court of Kerala in the matter of K. Ramkrishnan and Another v. State of

Kerala and Others AIR 1999 Ker 385. The Court held that:

“the continued omission and inaction on the part of the respondents to

comply with the constitutional mandate to protect life and to recognize the

inviolability of dignity of man and their refusal to countenance the baneful

consequences of smoking on public at large has resulted in extreme

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hardship and injury to the citizens and amounts to a negation of their

constitutional guarantee of decent living as provide under Article 21 of the

Constitution of India.” Therefore, the non-implementation by the Respondent

authorities to ban all tobacco subsidies would amount to incentivising tobacco

growing and tobacco consumption, thus leading to a violation of the right to

health of the citizens of the country, and needs the intervention of this Hon’ble

Court.

35. THAT the action of the Respondent authorities in continuing to grant subsidies

and incentives to tobacco farming amounts to a direct promotion of tobacco

which contravenes the duty of the State to take measures to increase the level of

nutrition and health and to improve the standard of living of the people as

required in Article 47 of the constitution and deserves the intervention of this

Hon’ble Court.

36. THAT, the Respondents under Article 48A of the Constitution have an obligation

towards protection and improvement of the environment. Tobacco farming has

extremely detrimental effects on the environment, leading to deforestation and

soil degradation with the chemicals from pesticides and fertilizers used in tobacco

growing ending up in the soil and surface water. The Respondent authorities’

encouragement of tobacco farming through the continued provision of subsidies

amounts to a violation of Article 48A, and needs the intervention of this Hon’ble

Court.

37. THAT, Article 39 of the Constitution requires the state to direct its policies so

“that the ownership and control of the material resources of the community are so

distributed as best to subserve the common good.” By subsidising tobacco

growing, the Respondent authorities are promoting tobacco farming, despite the

detrimental effects of tobacco cultivation and use on the environment and on

public heath. This is not in the public interest or common good and hence in

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direct contradiction of Article 39 and deserves the intervention of this Hon’ble

Court.

38. THAT due to harmful effects caused by the use of tobacco on public health, it is

imperative that effective measures are taken for the reduction of tobacco growing

and instead the Respondent government is increasing tobacco growing by

providing subsidies and incentives. Over a million people per year in the country

have been severely affected by tobacco use, as a result of which they face the

threat of deadly diseases such as cancer, thereby affecting their mortality rate.

This contravenes the duty of the State to take measures to increase the level of

nutrition and health and to improve the standard of living of the people as

required in Article 47 of the constitution and deserves the intervention of this

Hon’ble Court.

39. THAT tobacco subsidies granted by the Respondents are completely in violation

of the Respondent central government’s obligations under the FCTC. Parties to

the FCTC adopted guidelines for implementing Art. 5.3, which under the seventh

recommendation it is plainly stated for member states to “not give preferential

treatment to the tobacco industry.” This is explained later in the commentary to

include subsidies along with any other incentives or investments the public may

be providing to the tobacco industry. Hence, even in keeping with the

Respondent’s obligations under the FCTC, the said subsidies ought to be

discontinued immediately.

40. THAT Article 51 obligates the Respondent Union of India to foster respect for

international law and treaty obligations. The FCTC which is an international

convention signed and ratified by India is to be complied with and all international

obligations under it are enforceable pursuant to Article 51 and as per the ruling of

the Hon’ble Supreme Court in Vishaka v. State of Rajasthan and others

(1997) 6 SCC 241 wherein it held that “Any International Convention not

inconsistent with the fundamental rights and in harmony with its spirit must be

read into these provisions to enlarge the meaning and content thereof, to

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promote the object of the constitutional guarantee.” Following Vishaka, the

Supreme Court in Apparel Export Promotion Council v. A.K. Chopra (1999) 1

SCC 759 observed that “international instruments cast an obligation on India and

the courts are under an obligation to give due regard to international conventions

and norms for construing domestic laws”. The Supreme Court in T.N.

Godavarman Thirumalpad v. Union of India (2002) 10 SCC 606 observed that

it is necessary for the government to take into account the international

obligations and act on it, unless there are ‘compelling reasons’ to depart from it.

Thus, keeping in view all these rulings, the provisions of the FCTC which call for

an end to government incentives for the tobacco industry must be strictly

followed.

41. THAT the grant of subsidies for tobacco farming has even been curbed in

neighbouring countries such as Bangladesh. It was ordered by the Hon’ble

Supreme Court of Bangladesh (High Court Division) in Nurul Islam v.

Government of Bangladesh, WP 1825 of 1999 that the government take steps

phase by phase to stop production of tobacco leaves in tobacco growing Districts

of Bangladesh, giving subsidy to the farmers, if possible and necessary to

produce other agricultural products instead of tobacco and for rehabilitation of the

tobacco workers engaged in tobacco production, if possible with alternative

beneficial jobs and also to restrict issuance of licences for setting up tobacco

industry or Bidi factory and direct the existing tobacco and bidi companies to

switch over to some other industry to prevent production of Cigarettes, Bidi and

other tobacco related products, specifying a reasonable period for the purpose.

These directions were passed in the interest of public health, and hence similar

directions need to be considered by this Hon’ble Court.

GROUNDS FOR INTERIM RELIEF

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42. It is submitted that presently, the Respondents are issuing huge subsidies to

tobacco farmers in Karnataka, and the said subsidies are acting as incentives for

tobacco growing. Unless these subsidies are stayed, there cannot be any

meaningful efforts made in providing alternatives to tobacco farmers.

43. Further, if these subsidies are not stayed, it would amount to the Respondents

actually encouraging and incentivizing tobacco growing in Karnataka. This is

directly in contravention of the provisions of the COTPA, the FCTC and the

constitution, which protects the right to life and to improve public health.

44. Due to harmful effects caused by the use of tobacco on public health, it is

imperative that reduction of tobacco growing is brought about and one way in

which it can happen is by stopping all subsidies, which is prayed for. Instead the

Respondent government is increasing tobacco growing by providing subsidies

and incentives. Over a million people per year in the country have been severely

affected by tobacco use, as a result of which they face the threat of deadly

diseases such as cancer, thereby affecting their mortality rate. This contravenes

the duty of the State to take measures to increase the level of nutrition and health

and to improve the standard of living of the people as required in Article 47 of the

constitution. If this interim relief is not granted and subsidies are allowed to

continue, it would amount to a complete violation of the right to life and public

health of the citizens of Karnataka. No harm would be caused to the respondents

if the interim order is granted and in fact it would encourage the provision of

alternatives for improvement of the lives of the tobacco farmers as well.

PRAYER

WHEREFORE in light of the above facts and circumstances, it is prayed that this

Hon’ble Court be pleased to:

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A. Direct the Respondent No.1 State Government and the Respondent No.5

Tobacco Board to stop all state and central government subsidies and incentives

for tobacco growing, including providing fertilizers, pesticide/ fungicides,

tarpaulins and coal and similar inputs at competitive rates to tobacco farmers or

granting of crop loans for tobacco;

B. Direct the Respondents to provide effective measures, including incentives for

tobacco farmers in the State to have alternative agricultural avenues and move

away from tobacco farming and take steps to rehabilitate tobacco farmers and

workers engaged in tobacco production;

C. Direct the Respondents to progressively reduce registry fees and reassign

registry and certificate granting authority to either the Ministry of Agriculture of

India or Respondent No. 3 from Respondent No. 5 and stop granting any new

tobacco growing licenses or certificates which would help to prevent an increase

in the land area under tobacco cultivation;

D. Direct the Respondent State Government to earmark a percentage of its annual

health budget for weaning away farmers from tobacco cultivation and help them

switch to alternate crops/horticultural products; and

E. Direct the Respondent State Government to set up a Committee consisting of

senior members from the Respondent No.1 and 2 departments being the Health

and Family Welfare and the Agriculture department of the State government and

the High Powered Committee on Tobacco Control to review the monitoring of the

directions issued by this Hon’ble Court and make recommendations.

F. Pass any order as this Hon’ble Court deems fit in the facts and circumstances of

this case in the interest of justice and equity.

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INTERIM PRAYER

That pending the disposal of this petition, it is prayed that this Hon’ble Court may be

pleased to pass an interim order directing the Respondents No. 1 and 2 State

Government and the Respondent No. 5 Tobacco Board to stay the distribution of all

tobacco subsidies in the State of Karnataka in the interest of justice and equity.

Place: Bangalore

Date:

Counsel for the Petitioner

JAYNA KOTHARI

Address for Service:

D6, Dona Cynthia

35 Primrose Road

Bangalore-560025