A SPECIAL PROJECT ON

“SMOKING IN PUBLIC: A NUISANCE”

SUBMITTED TO

Mr. Deepu Krishna

(Faculty- Law of torts)

SUBMITTED BY

AMISH ROHATGI

Semester 1

Section B

Roll No. 46

(BBA + LLB hons.)

UNITED WORLD SCHOOL OF LAW

 CERTIFICATE OF DECLRATION

I hereby declare that the project work entitled “Malicious Prosecution” submitted to
Karnavati University, Ahmedabad, is record of an original work done by me under the
guidance of Mr. Deepu Krishna, Faculty Member, Karnavati University, Ahmedabad.

AMISH ROHATGI

Semester 1

Section (B)

Roll No. 46

Date: 31-10-2018
 INTRODUCTION
Smoking is the inhalation and exhalation of the smoke of burning tobacco
encased in cigarettes, pipes and cigars. Casual smoking is the act of smoking
only occasionally usually in social situation or to relieve stress. A smoking is
the physical addiction to tobacco products. Many health experts regard smoking
as psychological addiction too, and one with serious health consequences. The
rate of increase in disease and death due to active smoking is on rise. Over 11%
of 6.4 million deaths worldwide was caused by smoking in 2015 and 52.2% of
them took place in china, India, u.s.a and Russia, according to the latest
estimates in the global burden of disease (GBD) study. China, India and
Indonesia, the three leading countries with male smokers accounted for 51.4%
of world smoker’s in2015. [India has 11.2% of the world total smokers]. Deaths
attributable to smoking increased by 47% in 2015. The use, china and India
which were the leading 3 countries in total number of female smokers,
accounted for 27.3% of the world’s female smokers. The 10 countries with the
largest no: of smokers in 2015 were china, India Indonesia USA, Russia,
Bangladesh, Japan, Brazil, Germany and the Philippines. Together they
accounted for almost 2/3 of the world’s smokers [63.6%]. One in every four
men in the world is a daily smoker. Smoking remains the second largest risk
factor for early death and disability, and so further reduces its impact we must
intensify tobacco control efforts. But apart from this people who do not smoke
are suffering with the ill effects of smoking in passive way. The inhalation of
the second smoke by the persons causes “passive smoking” which tends to be
more harmful than actually active smoking, as the smoke that comes from the
burning end is much more irritating to the human tissue and much more
dangerous too. second hand smoke [shs] and environmental tobacco is a
combination of two different types of smoke: the first is called mainstream
smoke, the smoke which is breathed in by the smoker, inhaled and then exhaled.
The second is sidestream smoke, which is released into the air from the burning
end of the cigarette. So passive smoker gets in contact indirectly in both the
ways. But only in less concentration but tends to be more harmful. Passive
smoking is one of the major motivation behind making smoke free laws. Why
should a person other than intended active smoker face any problem? So, the
people who smoke should think about its consequences on other people. Every
citizen of India has a right to smoke above 18 years old as per the article 21 of
the Indian constitution [right to liberty]. People always raise their voice if any of
their rights get violated. But do we really care about are fundamental duties that
we must do as a citizen of India? The article 51A part 4 of the constitution of
India states different fundamental duties incorporated under 42nd amendment in
1976. The 86th amendment done in 2002 provides 11 fundamental duties to be
done by every citizen of India.

“Section 4 of the cigarettes and other tobacco products act [COTPA] describes
about prohibition of smoking at public places which is applicable from 2nd OCT,
2008”

India became a party to the WHO framework convention on tobacco control on

FEB 27, 2005” Henk bekedam is the WHO representative to India; he took up
his role in 27th November 2015.
WHAT IS PUBLIC PLACE?
A public place is an outdoor or indoor area, whether privately or publicly
owned, to which the public have access by right or by invitation, expressed or
implied.

Public place includes:

1) A restaurant, shop, shopping centre, store, or other place of business;

2) A public building
3) A parking lot
4) A public street
5) A public park or public ground
6) A hotel
7) An institution of education
8) A public place for worship
9) The parking areas, sidewalks and other ground and structures that are part
of public place.
 PUBLIC PLACES WITH SEPRATE SMOKING
AREA
There cannot be and should not be any smoking place in public places as all the
public places have to be smoke-free. But, there are some provisions under
which a smoking area can be provided by the owners, proprietors, manager,
supervisor or the person in-charge of affairs at places like hotels and restaurants.
Just like an owner and proprietor can provide smoking area, government should
or can also provide areas only for smoking in order to safeguard the right to life
[article 21] of passive smokers. Smoking in public is a clear violation of
Fundamental Rights (Article 21 - Right to Life) because you cannot survive
without going to work. And you cannot go to work without going to roads and
other public places. And even when you are not going to work it is your right to
be at any public place you want and enjoy (Article 19 (1) (d) ). According to
COTPA, A smoking area should be used only for the purpose of smoking and
no other service(s) shall be allowed. It Shall not be established at the entrance
or exit of the hotel, restaurant or airport and shall be distinctly marked as
‘smoking area’ in English and one Indian language as applicable. It should be
Physically separated and surrounded by full height walls on all four sides.
Having an entrance with automatically closing doors normally kept in close
position with an airflow system that is exhausted directly to the outside and not
mixed back into the supply to the other parts of the building. That is fitted with
a exhaust ventilation system which is non re-circulating in nature or an air
cleaning system or a combination of two, in such a manner that air does not
permeate into non smoking areas. The Smoking area has a negative air pressure
in comparison with the remainder of the building. There are special smoking
zones in hotels, restaurants and airports and open spaces. Places where smoking
is restricted include auditoriums, movie theatres, hospitals, public transport
(aircraft, buses,school's,trains, metros, monorails, taxis,) and their related
facilities (airports, bus stands/stations, railway stations), restaurants, hotels,
bars, pubs, amusement centres, offices (government and private), libraries,
courts, post offices, markets, shopping malls, canteens, refreshment rooms,
banquet halls,coffee houses, educational institutions and parks.
GUIDELINES FOR SMOKING AREA
The smoking area made at any public place should be use only for smoking
purpose. It should not be used for any other services in order to safeguard non
smokers’ rights. Guidelines for smoking areas are:- Display the signage as per
the specification given below:

a) The board shall be of minimum size of 60 cm by 30 cm of white

background;

b) It shall contain a circle of no less than 15 cm outer diameter with a red

perimeter of no less than 3 cm wide with a picture, in the centre, of a cigarette
or beedi with black smoke and crossed by a red band;

c) The width of the red band across the cigarette shall equal the width of the red
perimeter;

d) The board shall contain the warning “No Smoking Area- Smoking Here is an
Offence”, in English or one Indian language, as applicable;

e) The board shall be prominently displayed at each entrance of the public

place and a conspicuous place(s) inside the building. If there are more than one
entrance then at all entrances and exists. If there is more than one floor, at each
floor including the stair case and entrance to the lift at each floor.

f) Notify and display the name of a person (designated officer) to whom a

complain may be made, in case someone is found violating the law.

2. Ensure that no ashtrays, matches, lighters or other things designed to

facilitate smoking are provided.

3. Assigning a responsible officer to whom complaint may be lodged in case

anybody is spotted smoking.
 WHAT CONSTITUTES VIOLATION OF SECTION:
4 OF THE COTPA
1. If public places do not put up specified signage’s

2. Presence of ashtrays and lighters matches or any other device to facilitate

smoking.

3. Smoking area established at the entrance or exit of an establishment as

specified in the law.

4. Other services provided/allowed in the smoking area.

5. Smoking room with improper air flow system.

6. Presence of a separate smoking room in a public place which is NOT an

airport , hotel with more than 30 rooms or a restaurant with a 30 seating
capacity.

7. Designated officer for reporting of violations is not mentioned.

 PUNISHMENT UNDER COTPA
All the offences which are Punishable under COPTA are bailable. The
cases are tried in accordance with the Code of Criminal Procedure,
1973. The wrong done under this COTPA is taken as Compoundable
and tried according to the provisions of the summary trials.

There is a provision for the Fine of Rs. 200 if anyone is found

smoking at public places. The Government has put up an
Amendment Bill in the Parliament where it has been raised upto Rs.
1000. It has also been decided by the Health Ministry that the
minimum age for buying tobacco related products is 21 which was
earlier 18 and the same has been incorporated in the amendment
bill.
JUDGEMENT IN (MURLI S.DEORA V. UNION OF
INDIA)

The harmful and dangerous effects of smoking in public were recognized by the
Hon’ble Supreme Court in the year 2001 during the case of Murli S. Deora v.
Union of India. The ill effects of passive smoking and absence of any statutory
provision regarding this problem was also recognised by the Supreme Court in
this case.

The Supreme Court in its decision banned smoking in public places like
auditoriums, hospital buildings, public offices, railways, court buildings,
libraries, educational institutions, health institutions and other place of public
use.
CONCLUSION

Just like Romeo and Juliet there is a very common phrase/ so called relationship
called chai sutta (tea with cigarette) and we Indians loves the combination of it
but at this appropriate time we people forgets about the people who only come
to street vendors shop just to consume tea and we are gradually killing them, as
they are not giving their consent to the smoke and it violates the Article 21 of
the Indian constitution and hence unconstitutional.

Public smoking was first made illegal in the year 1991 by a division bench of
Kerala high court. The High Court stated that smoking at public places violates
the Article 21 of the Constitution and hence unconstitutional. The first city in
India to become smoke free was Chandigarh and according to me all the cities
of India should follow the same or there should be made separate area for
smoking at the corners of the roads, just like we have separate places for bank
ATM machines and like public toilets and these smoking areas should be distant
from the common public, in order to safeguard the life of non-smokers which is
our fundamental duty towards them. Why should they pay for our act of
negligence.
REFRENCES

Cigarettes and other Tobacco Related Act.

LAW OF TORTS – BY S.P. SINGH.

WORLD HEALTH ORGANIZATION WEBSITE.

HEALTH DEPARTMENT WEBSITE ( GOVERNMENT OF INDIA).