Something About The Law

The papers contain news items of effectiveness and lack of implementation of the smoking law. It seems that movie stars Ajay Devgan and Salman Khan were fined in Chandigarh for smoking in public places.

However, I would like readers to note that a “law” was not the only resolve to impose an anti-smoking ban around the country. Here I’m referring to a judgment written by Justices AR Lakshmanan and KN Kurup in K Ramakrishna v. State of Kerala, AIR 1999 Ker 385.

It is a judgment that is brilliant at all levels. The case came up as a Public Interest Litigation asking the Court to give directions against smoking in public places keeping in mind the dangers of passive smoking. The Court went on to list the dangers of smoking and the harm caused to passive smokers by the exposure to Environmental Tobacco Smoke (ETS). After concluding that such an act is harmful and that something must be done to prevent it, the Court went on to discuss the relief asked for by the petitioner;

“22. Taking note of the alarming scenario as discussed above, the question then is, what is the relied that this Court can grant to the petitioners ? Can the Court direct the legislature to enact a law banning tobacco smoking?”

The Court stated an emphatic ‘no’ and said that it is not authorized to direct the legislature to enact a law but what it can do is to grant relief by way of a writ of mandamus to the Government and its officials including the police to enforce existing laws which is quite sufficient to safeguard the interests of the public against smoking.

So what are these existing laws that can be used to prevent public smoking ?

Sections 268 and 278 of the Indian Penal Code which cover the crime of public nuisance. According to these Sections;

“A person is guilty of public nuisance who does any act or is guilty of an illegal omission which causes common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”

Thus then stating that smoking in public is a “public nuisance” in terms of it being a common interest and causing harm to every one. Further that according to Section 278 a fine of Rs. 500/- may be prescribed for the violation of this offence.

But how then may this provision be enforced to prevent public smoking ?

It must be noted that Section 278 of the IPC is a non-cognizable offence. Since the offence alleged is non-cognizable, the police has no authority to arrest the offender without an order from a magistrate or without a warrant.

The Court said that such an order to prevent public smoking can be given by the Magistrate under Section 133 of the Code of Criminal Procedure stating that a Magistrate can give a conditional order for the removal of nuisance from any public place. Furthermore, a disobedience of this order may extend to a fine of Rs 200 or simple imprisonment for a period of one month or both.

Quoting Krishna Iyer J. in Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622, the bench stated;

“Therefore, when a Magistrate has, before him all the information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act.”

Thus, by showing that there is conclusive evidence of public nuisance being caused by smoking in public places, an order by a Magistrate is also enough to prevent smoking rather than enacting a law to do the same.

…..

Another reason why this judgment is so good is that it has not made those sudden statements that are not substantiated by fact, law or reason. Every statement is adequately supported by law and fact and the reasoning given by the judges cannot be put to question.