IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. OF 2017
[WITH PRAYER FOR INTERIM RELIEF]
[Arising out of the Impugned Final Judgment and Order dated
15.12.2017 passed by the Hon'ble High Court of Karnataka at
Bengaluru in Writ Petition No.4470 of 2015]
IN THE MATTER OF:
Umesh Narain … Petitioner
VERSUS
The Tobacco Institute of India & Anr. … Respondents
WITH
[I.A. No. OF 2017]
APPLICATION FOR SEEKING PERMISSION TO FILE THE
SPECIAL LEAVE PETITION
AND
[I.A. No. OF 2017]
APPLICATION FOR SEEKING PERMISSION TO FILE
LENGTHY LIST OF DATES
AND
[I.A. No. OF 2017]
APPLICATION FOR SEEKING PERMISSION TO FILE THE
SPECIAL LEAVE PETITION WITHOUT THE CERTIFIED AND
PLAIN COPY OF THE IMPUGNED ORDER
AND
[I.A. No. OF 2017]
APPLICATION FOR EXEMPTION FROM FILING THE
CERTIFIED AND PLAIN COPY OF THE IMPUGNED ORDER
AND
[I.A. No. OF 2017]
APPLICATION FOR SEEKING PERMISSION TO FILE
ADDITIONAL DOCUMENTS

PAPER BOOKS

[FOR INDEX :: KINDLY SEE INSIDE]

ADVOCATE FOR THE PETITIONER:

MS AISHWARYA BHATI
 RECORD OF PROCEEDINGS

S.No. DATE OF RECORD OF PROCEEDINGS PAGES

 INDEX

S.No. Particulars of Document Page No. of part to Remarks

which it belongs
Part 1 Part II
(Contents (Contents
of Paper of file
Book) alone)
(i) (ii) (iii) (iv) (v)
Court Fees
1) Office Report on Limitation A A
2) Listing Proforma A1-A2 A1-A2
3) Cover Page of Paper Book A-3
4) Index of Record of Proceedings A-4
5) Limitation Report prepared by the A-5
Registry
6) Defect List A-6
7) Note Sheet NS1 to
8) Synopsis and List of Dates
9) Letter for cause title and particulars
of impugned order with Coram and
finding of the Hon'ble High Court

10) Special Leave Petition with

Affidavit

11) APPENDIX:
Cigarettes and Other Tobacco
Products (Packaging and
Labelling) Amendment Rules,
2014

12) ANNEXURE P-1:

True typed copy of the Order dated
08.03.2016 passed by this Hon’ble
Court in Writ Petition (C)
No.134/2016

13) ANNEXURE P-2:

True typed copy of the Order dated
04.05.2016 passed by this Hon’ble
Court in SLP (C) No.10119 of
2016

14) Application for seeking permission

to file the Special Leave Petition

15) Application for seeking permission

 to file Lengthy List of Dates

16) Application for seeking permission

to file the Special Leave Petition
without the certified and plain copy
of the impugned order

17) Application for exemption from

filing the certified and plain copy
of the impugned order

18) Application for seeking permission

to file Additional documents

19) ANNEXURE P-3:

True typed copy of the News
Article dated 15.12.2017 titled as
“Karnataka High Court cancels
2014 government rule on stringent
tobacco pack warnings” of The
New Indian Express

20) ANNEXURE P-4:

True typed copy of the News
Article dated 15.12.2017 titled as
“Karnataka HC strikes down rule
on stringent tobacco pack
warnings” of The Hindu

21) Letter

22) Urgency Affidavit

23) Memo of Parties

24) Filing Memo

25) Vakalatnama with memo of

appearance
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. OF 2017
IN THE MATTER OF:
Umesh Narain … Petitioner
VERSUS
The Tobacco Institute of India & Anr. … Respondents

OFFICE REPORT ON LIMITATION

1. The petition is/are within time.

2. The petition is barred by time and there is delay of ____

days in filing the same against order dated 15.12.2017
and petition for condonation of ____ days delay has been
filed.

3. There is delay of ______ days in refilling the petition and

petition for condonation of ______ days delay in refilling
has been filed.

NEW DELHI
DATE: .12.2017

BRANCH OFFICER
 SYNOPSIS

The present Special Leave Petition raises substantial questions

of law of public importance. By judgment that is impugned in

the present proceedings, the Hon’ble High Court has quashed

the operation, implementation and effect of the Cigarettes and

Other Tobacco Products (Packaging and Labelling) Amendment

Rules, 2014 (hereinafter referred to as Rules, 2014), framed

under the provisions of 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 ‘the 2003 Act’).

The Rules, 2014 are amendments to the Cigarettes and Other

Tobacco Products (Packaging and Labelling) Rules, 2008

(hereinafter referred to as “Rules, 2008”), which were

implemented subsequent to the direction of this Hon’ble Court.

The implementation of Regulations mandating 85% pictorial

warning on both sides of Tobacco products was a culmination of

an extremely long, cumbersome and excruciating fight by public

heath activists, people whose life and family had been ruined

by Tobacco, against the mighty Tobacco industry. This Hon’ble

Court has played a pivotal role in this extremely important

journey which saw complete ban of advertising of tobacco

products, from the time that tobacco industry used to be at the

forefront of all glitzy advertising and sponsorship of mega

events to attract the youth. The tobacco industry always

attempted to project tobacco products as ‘cool’, ‘macho’,

‘classy’, ‘rebellious’, ‘affluent’, ‘modern’ etc. Graphic and big

pictorial warnings bust the myth of tobacco products being cool,

stylish and fashionable.

Tobacco is the only industry which loses 1/3 rd of its consumers

every year on account of death or disability and, therefore, it

has to constantly tap at youth and impressionable minds to

ensure the clientele continues and grows. Graphic pictorial

warnings which occupy 85% of the package on both sides will

assist not only the existing consumers of tobacco products to

understand the grave health risks involved but will also

dissuade the younger generation from becoming tobacco

addicts. This also ensures that tobacco products themselves

become effective tools of spreading public health message and

discouraging consumption at no cost to the government, as the

government today expends enormous amounts of money to

spread the public health messages by print, audio visual and

other forms of media.

The impugned order will have the serious and numbing impact

on India’s fight against Tobacco, it is regressive, retrograde and

jeopardizes future generations of the Country having maximum

number of youth in the world.

The statement of objects and reasons of the COTPA Act, 2003,

as considered, accepted and stipulated by the Parliament of the

Country, are extremely telling and are reproduced here for

ready reference:-

“An Act to prohibit the advertisement of, and to provide 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.

WHEREAS, the Resolution passed by the 39 th World

Health Assembly (WHO), in its Fourteenth Plenary
meeting held on the 15th May, 1986 urged the member
States of WHO which have not yet done so to implement
the measures to ensure that effective protection is
provided to non-smokers from involuntary exposure to
tobacco smoke and to protect children and young people
from being addicted to the use of tobacco;

AND WHEREAS, the 43rd World Health Assembly in its

Fourteenth Plenary meeting held on the 17 th May, 1990,
reiterated the concerns expressed in the Resolution
passed in the 39th World Health Assembly and urged
Member States to consider in their tobacco control
strategies plans for legislation and other effective
measures for protecting their citizens with special
 attention to risk groups such as pregnant women and
children from involuntary exposure to tobacco smoke,
discourage the use of tobacco and impose progressive
restrictions and take concerted action to eventually
eliminate all direct and indirect advertising, promotion and
sponsorship concerning tobacco;

AND WHEREAS, it is considered expedient to enact a

comprehensive law on tobacco in the public interest and
to protect the public health;

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;

AND WHEREAS, it is expedient to prohibit the

advertisement of, and to provide for regulation of trade
and commerce, production, supply and distribution of,
cigarettes and other tobacco products and for matters
connected therewith or incidental thereto”

The impugned order falls foul of the statement of objects and

reasons of the COTPA Act 2003 and deserves to be quashed

and set aside on this ground alone.

The Petitioner is a Senior Advocate, currently aged 65 years.

He had been a tobacco user for years and had begun using

gutkha at the age of 26 years by trying out different products.

That tobacco had poisoned his body to the extent that in year
2010 he was diagnosed with tongue cancer that required major

surgery in 2011.

Earlier, the Petitioner had filed a Writ Petition (C) No.134/2016,

in public interest under Article 32 of the Constitution before this

Hon’ble Court praying for the following reliefs:-

“issue an appropriate writ, order or direction in the nature

of mandamus directing the Respondents to immediately
promulgate and implement plain packaging rules for
cigarette and other tobacco products and without any
further delay”

This Hon’ble Court vide order dated 08.03.2016 was pleased to

issue Rule in the aforesaid Writ Petition (C) No.134/2016.

LIST OF DATES

18.05.2003 Cigarettes and Other Tobacco Products

(Prohibition of Advertisement and Regulation

of Trade and Commerce, Production, Supply

and Distribution) Act, 2003 (COTPA) was

enacted by Parliament after receiving

Presidential assent on May 18, 2003 with the

objective to discourage tobacco use and to

protect children and young people from being

addicted to the use of tobacco and to

discourage the use or consumption of tobacco

products which are injurious to health, for the

purpose of achieving improvement of public

health in general as enshrined in Article 47 of

the Constitution of India. Section 7 and 8 of

COTPA, 2003, mandate display of pictorial

health warning which are legible, prominent

and conspicuous as to size and colour.

Following COTPA, the Respondent Union of

India also signed and ratified the “Framework

Convention on Tobacco Control” (“FCTC”) by

the World Health Organization. FCTC is

formed to implement efficient methods to

reduce tobacco consumption across the

world. The objective of this Convention is to

protect present and future generations from

the devastating health, social, environmental

and economic consequences of tobacco

consumption and exposure to tobacco smoke

by providing a framework for tobacco control

measures to be implemented by the Parties at

the national, regional and international levels

in order to reduce continually and substantially

 the prevalence of tobacco use and exposure

to tobacco smoke (Article 3).

Article 11 of FCTC mandates that each

package of tobacco products and any outside

packaging and labeling of such products shall

carry health warnings describing the harmful

effects of tobacco use. The guidelines

developed for implementation of Article 11 and

approved by Conference of Parties (COP) the

highest decision making body of WHO FCTC,

recommends that health warnings and

messages should cover as much of the

principal display areas as possible as larger

health warnings with pictures are more

effective than smaller warnings.

31.05.2009 The Cigarettes and other Tobacco Products

(Packaging and Labelling) Rules, 2008 came

into force on 31st May 2009 pursuant to the

direction of this Hon’ble Court in Writ Petition

No.549/2008. It is pertinent to mention here

that despite very high prevalence of tobacco

use and associated mortality and morbidity in

India and despite very clear provisions and

guidelines under COTPA and FCTC, the

health warnings on tobacco packs prescribed

under Rules, 2008 covers only 40% of the

front panel of the pack, which is only 20% of

the principal display area of the pack.

Tobacco is the leading cause of death

globally. According to the World Health

Organization MPOWER Report on Global

Tobacco Epidemic-2008,

“Currently about 5.4 million people die

prematurely every year in the world due
to the use of tobacco. It kills one person
every six seconds. It kills a third to half
of all people who use it, on average 15
years prematurely. Today, tobacco use
causes 1 in 10 deaths among adults
worldwide – more than five million
people a year. By 2030, unless urgent
action is taken, tobacco’s annual death
toll will rise to more than eight million. If
current trends continue unchecked, it is
estimated that around 500 million
people alive today will be killed by
tobacco. During this twenty-first century,
tobacco could kill up to one billion
 people. Most tobacco users will want to
quit but will be unable to because of
their dependence on a highly addictive
substance.

In India, about a quarter of deaths

among middle-aged men are caused by
smoking. As the number of smokers in
this group increases with population
growth, so will the number of deaths”.

The Report of Tobacco Control prepared

under the aegis of Ministry of Health and

Family Welfare, Government of India and

World Health Organization, establishes the

menace of tobacco

Excerpt from the report,

“The total number of premature deaths

caused by tobacco during the twentieth
century has been estimated at about
100 million and, if current trends of
tobacco use continue during the twenty-
first century, the death toll is projected to
go up to one billion. The World Health
Organization (WHO), which provides
these estimates, also predicts that India
will have the fastest rate of rise in
deaths attributable to tobacco in the first
two decades of the twenty first century.
 Many of these deaths will occur in the
productive years of adult life, as a
consequence of an addiction acquired in
youth. The compelling need to save
many of these lives from falling prey to
tobacco use addiction and the urgent
imperatives of avoiding the huge health,
economic, social and environmental
burdens that would be imposed by
tobacco on a nation that aspires for
accelerated development, form the
raison d’être of this report.

Tobacco use causes a wide range of

major diseases which impact nearly
every organ of the body. These include
several types of cancers, heart diseases
and lung diseases. Public health
researchers have been substantiating
these findings and discovering more and
more damaging evidence about the
disease consequences of tobacco use
for over half a century.”

India’s tobacco problem is more complex than

probably that of any other country in the world,

with a large consequential burden of tobacco

related disease and death. As per the Global

Adult Tobacco Survey-2010, a nationally

representative household survey that was

launched in February 2007 as a new

component of the ongoing Global Tobacco

Surveillance System (GTSS) conducted in the

age group 15 years and above, there is high

prevalence of tobacco use amongst children

and youth of the country. The GATS India was

conducted by the International Institute of

Population Sciences, Mumbai on behalf of the

Ministry of Health and Family Welfare.

Technical support for this report was provided

by US Centers for Disease Control and

Prevention (CDC), World Health Organization,

John Hopkins Bloomberg School of Public

Health and the RTI International. According to

the survey report, over 35% (almost 28

crores) of the adult population consumes

tobacco in some form or the other and

majority of the tobacco users are illiterate and

semi-literate.

As per the Global Youth Tobacco Survey- a

school-based cross-sectional survey among

grades associated with students aged 13–15

years in randomly selected schools that was

conducted in all six regions of India in 2009,

14.6% of 13–15-year-old students are using

tobacco in India. Of those, 8.1% of students

smoked tobacco. As many as 11% of all male

students surveyed were found to be users of

smoking or smokeless tobacco, while 6% of

female students used smokeless tobacco and

3.7% smoked tobacco. More than 5500

children /Adolescents start tobacco

consumption daily. Every day, 80,000 to

100,000 children worldwide start smoking.

According to the Economic Burden of Tobacco

Related Diseases Report prepared by the

Public Health Foundation of India with support

from Ministry of Health and Family Welfare

and WHO India Office, the total economic

costs attributable to tobacco use from all

diseases in India in the year 2011 amounted

to Rs. 1,04,500 crores (US $ 22.4 billion),

which is 1.16 percent of the GDP. This was

12% more than the combined state and

central government expenditure on health in

2011-12. The total central excise revenue

from all tobacco products combined in the

same year amounted to only 17% of the

estimated economic costs of tobacco.

There is urgent need to discourage tobacco

consumption; one such way is to

communicate to the consumer the possible

health hazards arising out of use and

consumption of tobacco. This is achieved by

including large pictorial health warnings on the

packaging of tobacco products. Pictorial

Health Warnings (PHWs) are one of the most

effective public health measures to inform the

public about the harms of tobacco products.

PHW labels describe the harmful effects of

tobacco products using text and/ or pictures.

The messages in the labels are intended to

describe the harmful physical and

psychosocial effects of using tobacco

products. In the past, text-only warning labels

have appeared on cigarette packages; the

evidence now shows that picture-based

warnings with accompanying text are more

effective. PHWs have been shown to promote

smoking cessation, and increase health

knowledge and perceptions of risk, compared

to text-only warnings. Across all pictorial

warnings, graphic warnings depicting

gruesome health effects were perceived as

most effective.

The International Tobacco Control Policy

research conducted in numerous countries

has shown conclusively that larger pictorial

warnings are more effective. For example,

after Uruguay increased their pictorial

warnings from 50% of both sides of the pack

to 80% of both sides, there was a significant

increase in every indicator of health warning

impact. Converging evidence from ITC

Projects in Brazil, the UK, and France shows

the importance of increasing the size of

pictorial warnings on both the front and back

of the pack.

The findings of Tobacco Control Policy Survey

(a cohort survey of 8000 adult tobacco users

and 2400 non-users in India conducted in

collaboration with the Healis- Sekhsaria

Institute for Public Health and University of

Waterloo), clearly shows that the earlier

warnings on India tobacco products were not

effective in promoting quitting nor in informing

smokers about the range of harms of tobacco.

For example, only 49% of smokers in Madhya

Pradesh believed that smoking causes heart

disease – the lowest level of knowledge of 16

International Tobacco control Policy Project

countries and regions. Only 4% of male

smokers in Maharashtra said the health

warnings made them think about the health

risks “a lot” – the lowest percentage of 9 low-

and middle-income countries.

As per Global Adult Tobacco Survey-India

(GATS -2010) majority of the tobacco users in

India are illiterate and semi-literate and the

only form of warning which will warn and deter

the illiterate are graphic pictorial warnings.

The graphic pictorial health warnings create

awareness about the serious and adverse

health consequences of tobacco usage

 especially among the youth, children and

illiterate persons. There is sufficient evidence

to show that prominent health warnings and

messages on tobacco product packages

increase both the awareness of risks and the

desire to quit among smokers.

15.10.2014 The Central Government, vide GSR No.727

dated 15th October 2014, notified the

Cigarettes and other Tobacco Products

(Packaging and Labelling) (Amendment)

Rules, 2014. The said Rules, 2014

incorporated the above recommendations of

the Expert Committee with few changes and

mandates printing of specified heath warning

covering 85% of the principal display area of

the tobacco products package.

Prior to the Cigarettes and Other Tobacco

Products (Packaging and Labelling)

Amendment Rules, 2014, India ranked very

low amongst the countries implementing pack

warning. According to the Cigarette Package

Health Warnings: International Status Report-

2014 issued by Canadian Cancer Society,

India was ranked at 136 among 198 countries

in terms of prominence of pictorial health

warnings on tobacco packaging and is ranked

much below countries like Pakistan,

Bangladesh, Nepal Thailand etc., having

higher proportion of pack warnings on the

principal display areas of the tobacco packs. It

is also alarming to note that countries ranked

after 136 have no pack warning on the

tobacco products packages, thus making India

status/rank amongst the bottom 10 countries

in the world. India also ranked last among

other SAARC/SEARO nations that have

graphic health warnings.

Attractive packaging is a pseudo mode of

advertisement. The tobacco products are

being packed in such an attractive packaging

that it attracts the youths for tobacco use. To

counter this tactics of the Industry plain

packaging is the best strategy which would

prohibit brand colours, logos and graphics on

tobacco packages, thus eliminating the

 package as mini-billboards that promote

tobacco. Several studies conducted on the

effectiveness of Plain packaging establishes

this fact that plain packaging is the best way

to counter industry strategies of using tobacco

packaging for advertising and promoting their

deadly products. Required health warnings

would appear on packages, but the branded

part of the package would have a standard

colour for all brands.

2016 The Petitioner filed a Writ Petition (C)

No.134/2016 before this Hon’ble Court for

enforcement of Plain tobacco packaging, also

known as generic, standardized or

homogeneous packaging, refers to packaging

that requires the removal of all branding

(colour, imagery, corporate logo and

trademarks). Permitting manufacturers to print

only the brand name in a mandated size, font

and place on the pack, in addition to the

health warnings and any other legally

mandated information such as toxic

constituents and tax-paid stamps. The

appearance of all tobacco packs is

standardized, including the colour of the pack.

It is admittedly true that plain packaging also

impacts the cigarettes and smoking in

general, studies reveal that attractiveness,

perceived quality, and the extent to which the

pack is associated with a desirable smoker

identity generally impact the sale and

consumption of cigarettes.

Studies on the impact of plain packaging in

Australia have confirmed that in terms of

attractiveness, plain packs are perceived as

less attractive, exciting, fashionable, cool,

stylish, appealing, nice and colorful than

branded packs and are less likely to be

chosen. Studies have revealed that packs

became more negatively rated as

progressively more brand elements are

removed. Plain packs are perceived as poorer

quality, poorer tasting, less smooth and

cheaper than branded packs and smokers of

plain packaged cigarettes were perceived as

less popular, fashionable, sophisticated,

confident, stylish sociable and trendy and

more boring, older and lower class.

Associations between particular brand names

and attributes were weakened when smokers

were shown plain pack equivalents. Plain

pack colours were found to have negative

connotations, to weaken smoker’s attachment

to brands to project a less desirable smoker

identify, and to expose the functional and

uncomfortable reality of smoking. Non-

smokers tended to find plain packaging less

appealing than did smokers and younger

generation tended to find it less appealing

than did older generation, where these

differences were examined. These effects are

consistent with the wider marketing literature,

which places emphasis on packaging as a

valuable marketing tool, Investment in it is

seen as important and worthwhile, to be

successful it must appeal visually and create a

positive impression and the pack is part of the

product and can influence evaluations of

product quality. In line with these observations

by removing key elements of appeal, plain

packaging reduces the utility of the pack as a

marketing tool.

For the very first time in 1989, the New

Zealand Department of Health’s Toxic

Substances Board recommended that

cigarettes be sold only in white packs with

black text and no colours or logos.

Australia was the first country in the world to

introduce standardized packaging for tobacco

products with the enactment of the Tobacco

Plain Packaging Act in 2011. From December

01, 2012, it became illegal for tobacco

companies to use brand logos, colours or

promotional text on their tobacco packaging.

Branding is restricted to the name of the

manufacturer and the name of the product

displayed in a standard size and typeface and

all packs must be produced in the same

colour. All Australian packets must include

graphic health warning images both on the

front and back.

In June 2014, Ireland announced it was

proposing legislation that would make it the

first country in the European Union and the

second in the world to introduce plain

packaging of tobacco products. On March 10,

2015 Plain Packaging Bill was enacted to

come into force on May 20, 2016.

On 28 November 2013, the Government of

UK announced an independent review into the

public health evidence on standardized

tobacco packaging and that an amendment

would be tabled to the Children and Families

Bill to establish regulation making powers in

this area. The Government amendment was

tabled at the Report stage in the House of

Lords on 29 January 2014 and was agreed by

both Houses at later stages. The Children and

Families Bill received royal assent on 13

March, 2014. On 3 April 2014, the report of

the Public. Health Review undertaken by Sir

Cyril Chantler was published. The report

concludes,
 “It was very likely that the introduction of
standardized packaging would lead to a
modest but important reduction in the
uptake and prevalence of smoking and
would have a positive effect on public
Health”.

On the same day the Government announced

that it was minded to introduce regulations to

provide for standardized packaging. On 26

June 2014 draft regulations and a consultation

were published. On March 16, 2015 the Plain

Packaging Regulations was approved to come

into force on May 20, 2016 applying to

England (Regulation 94 of retail packaging

etc. of tobacco products), Wales Northern

Ireland and Scotland.

In 2010 the European Commission launched a

public consultation on a proposal to revise

Directive 2001/37/EC which covers health

warnings, limits on toxic constituents etc., for

tobacco products. The Consultation included a

proposal to require plain packaging. The

European Union induced in its proposal for a

new Tobacco Products Directive the option for

the Member States to introduce plain

packaging. Legal scholars consider plain

packaging to be consistent with primary

European law and German law.

Norway announced its support to the United

Kingdom and Ireland in their efforts to

Introduce "plain packaging" of tobacco

products in recent meeting of the WTO

Committee on Technical Barriers to Trade

(TBT) and the Council for Trade- Related

Aspects of Intellectual Property Rights

(TRIPS). The World Medical Association, in

Oslo for its 200th Council meeting, responded

to a public Consultation by the Norwegian

Ministry of Health and Care services

suggesting that all tobacco products sold in

Norway should have standardized packaging

The goal is to prevent tobacco use among

children and young people. The consultation

also discusses the possibility of stopping the

influence of the tobacco industry on tobacco

policy. The Plain Packaging consultation

began on March 17, 2015 and ended June 9,

2015. On May 5, 2015, Norway provided

notification for draft amendments for plain

packaging.

On September 21, 2015, Hungary provided

notification of a draft Decree that included

plain packaging. On April 14, 2015, the

National Assembly of France adopted a bill

that includes a requirement for plain

packaging effective May 20, 2016. The bill

was then sent to the Senate, but the bill will

need to revert to the National Assembly for

plain packaging to be adopted. On May 7,

2015, France notified a draft Decree on plain

packaging. On July 20, 2015, France hosted a

10-country ministerial meeting on plain

packaging.

The New Zealand Government Bill was

introduced on Dec. 17, 2013, first reading

Feb. 11, 2014, approved by Health Committee

Aug. 5, 2014. The bill continues in Parliament

following Sept. 20, 2014 election. The Sweden

– Health Minister announced, on February 18,

2015, that a Committee examining

implementation of the new EU Tobacco

Products Directive would consider plain

packaging. The Finland Government national

action plan (June 2014) includes plain

packaging as planned measure. In Canada

New Government elected on Oct. 19, 2015

committed in electoral platform to implement

plain packaging. On Nov. 13, 2015, the Prime

Minister’s mandate letter to the Minister of

Health included plain packaging as a “top

priority”. The Singapore Government

announced on March 12, 2015 that it would be

conducting a consultation on plain packaging

towards the end of 2015. Plain packaging

was included in the Turkey government

national action plan for 2015-2018.25. The

South Africa, Health Minister stated on July

24, 2014 that he wants to implement plain

packaging, and stated March 18, 2015 that

legislation will be introduced in Parliament to

implement plain packaging.

These countries have demonstrated their

confidence in the soundness and necessity of

plain packaging and have sent a signal to

other governments that it is safe to follow suit.

WHO Director General Margaret Chan has

also made the same point at the World

Conference on Tobacco or Health in Abu

Dhabi, United Arab Emirates (March 17- 19,

2015) "What industry is aiming for is a domino

effect, where countries fall in their resolve,

one after another under the threat of legal

action." She celebrated the fact that the

dominos are falling in the other direction and

that "more than ten countries are considering

plain packaging." Soon thereafter, the South

African Health Minister was quick to comment

that his country would soon be added to this

list. With the support of the global tobacco

control community, one can see the

emergence of a massive policy cascade as

countries around the world join in plain

packaging legislation. Such an effect would

greatly hinder tobacco industry efforts to slow

the momentum of the fight against.

The opinion of the world bodies and various

member countries is based on some real data

collected under various study programmes. A

few of the studies which have a bearing on the

issues raised herein are:

(i) A study carried out by Cancer Council

Victoria, Australia, which reasoned that
while price was one of the most
important contributors to decisions
about smoking, research concluded that
plain packaging would also influence
decisions about uptake of smoking and
quitting. The paper presented the
findings of research over two decades
and across five countries on the topic of
plain packaging.

(ii) The study titled ‘Short-term changes in

quitting-related cognitions and behaviors
after the implementation of plain
packaging with larger health warnings:
findings from a national cohort study
with Australian adult smokers’
concludes,
 ‘The implementation of PP with
larger PHWs was associated with
increased rates of quitting
cognitions, micro indicators of
concern and quit attempts among
adult cigarette smokers’.

iii) A New Zealand study published in

Tobacco Control in 2010 provides some
guidance. The study examined the
combined effects of health warnings and
plain packaging on the likelihood of
young adults 18 to 30 years engaging in
behaviours known to be linked to
cessation. Smokers in this study were
asked which pack they would be most
and least likely to choose each time they
were repeatedly presented with four
cigarette packets featuring different
branding and warning size
combinations. Packs with the greatest
number of branding elements were still
preferred even when the warnings were
increased from 30 to 50%. However,
they were less likely to be chosen with a
75% warning. Plain packets with 75%
health warnings were significantly more
likely to elicit stronger cessation‐linked
intentions (to reduce the amount
smoked; increase quit attempts;
increase help‐ seeking to quit) than
 were branded packs with a 30% front‐of‐
pack warnings.

iv) An updated March 2014 evidentiary

overview, reviewing 75 empirical
studies, Professor David Hammond for
the Irish Government states:

“Evidence from a range of

methodologies indicates that plain
packaging reduces consumer
demand. Several naturalistic
studies suggest that plain
packaging may promote smoking
cessation among established
smokers. Findings from clinical
studies also indicate that plain
packaging can reduce urges to
smoke that are normally cued by
branded packages. Most
compelling, Australian evidence
suggests that plain packaging has
increased calls to state Quitlines,
and may have increased rates of
smoking cessation”.

v) According to another study published in

Epidemiol Prev. 2013 Nov. Dec. 37(6):
400-5 titling “How would plain packaging
and pictorial warning Impact on smoking
reduction, cessation and initiation?”
“The aim of the survey was to
assess the impact of plain
packaging and pictorial warning in
smoking reduction, cessation and
initiation among a sample of adult.
The cross-sectional study was
conducted in Rome between
September and November 2012.
The questionnaires administered
were 227, with a response rate of
82.4%. About 35.8% (No. 67) of
the respondents considered the
image of the gangrene the most
effective in communicating
smoking related damages,
followed by the image on lung
cancer (No. 60; 32.1%).
Distinguishing between smokers
and non- smokers (both former
and never smokers), the picture
on lung cancer was the most
effective for smokers (No. 22;
38.6%); if cigarette packages
have pictorial warnings like the
ones shown, more than half (No.
33; 57.9%) of smokers would
change brand; 66.7% (No. 38) of
them would feel uncomfortable in
showing the package. Comparing
the 3 packaging’s, classic
packaging, plain packaging with
 textual warning, and plain
packaging with both textual and
pictorial warning, the majority of
people declared that the third is
the most effective in preventing
smoking initiation (No. 169;
90.9%), in motivating to quit (No.
158; 84.9%), and in changing
smoking habits (No. 149; 80.5%).
The survey, although its small
sample size and being not
representative of all strata of
Italian population, shows that the
plain packaging with pictorial
warning is the most convincing in
the three out comes considered”.

The survey, although its small sample

size and being not representative of all
strata of Italian population, shows that
the plain packaging with pictorial
warning is the most convincing in the
three outcomes considered.

vi) In another study reported as "Plain

Tobacco Packaging: A Systemic
Review", a review was undertaken as
part of the public Health Research
Consortium. The systematic review
outlines findings from 37 studies that
provide evidence of the impacts of plain
tobacco packaging. The review was
conducted following the publication of
the March, 2011 white Paper Healthy
Lives Healthy People which set out a
renewed Tobacco Control plan for
England. One of the key actions
identified in the plain was to consult on
possible options to reduce the
promotional impact of tobacco
packaging, including plain packaging.
The systematic review was
commissioned to provide a
comprehensive overview of evidence on
the impact of plain packaging in order to
inform a public consultation on the
issue. The report notices the Framework
convention on Tobacco Control (FCTC)
proposes that plain packaging would
have three benefits; it would reduce the
attractiveness and appeal of tobacco
products, it would increase the notice
ability and effectiveness of health
warnings and messages, and it would
reduce the use of design techniques
that may mislead consumers about the
harmfulness of tobacco products. The
report discusses the appeal of
cigarettes, packs and Brands and
observes that:

"5.1" Appeal of Cigarettes, packs and

Brands
A total of 28 studies assessed the
impact of plain packaging on the
appeal of packs, cigarettes and
smoking in general. Three aspects
of appeal were examined in the
review: attractiveness, perceived
quality and the extent to which the
pack is associated with a desirable
smoker identity. Irrespective of the
methodology, sample
characteristics and location, all
quantitative and intervention
studies which directly compared
the appeal of plain packs and
branded packs found that plain
packaging reduced appeal in all
three areas, and these themes
were also found in the qualitative
studies.

In terms of attractiveness, plain

packs were perceived as less
attractive, exciting, fashionable,
cool, stylish, appealing, nice and
colourful than branded packs, and
were less likely to be chosen in
preference tests. Studies that
tested a range of branded and
unbranded packs found that packs
became more negatively rated as
progressively more brand
elements were removed. In
studies which examined
perceptions of quality, plain packs
were perceived as poorer quality,
poorer tasting, less smooth and
cheaper than branded packs.
Studies which examined the
smoker identity attributes
associates with different packs
found that smokers of plain
packaged cigarettes were
perceived as less popular,
fashionable, sophisticated,
confident, stylish, sociable and
trendy and more boring older and
lower class, Associations between
particular brand names and
attributes (for example, Marlboro
being associated with the
outdoors) were weakened when
smokers were shown plain pack
equivalents. Studies which
examined perceptions of plain
packs in isolation, without
comparing them with branded
packs, also show them to be
unappealing. In the ten qualitative
studies that examined appeal, four
key themes emerged to explain
why plain packs were consistently
rated as less attractive and lower
quality and had a poorer image
than branded packs, Plain pack
colours were found to have
negative connotations, to weaken
smokers, attachment to brands to
project a less desirable. Smoker
identity and to expose the
functional and uncomfortable
reality of smoking.

Non-smoking tended to find plain

packaging less appealing than did
smokers and younger respondents
tended to find it less appealing
than did older respondents, where
these differences were examined.
Only one study examined gender
difference and suggested that
women found plain packaging less
appealing than did men.

These effects are consistent with

the wider marketing Literature,
which places emphasis on
packaging as a valuable marketing
tool (see Section 2 above),
Investment in it is seen as
important and worthwhile (Meyers
& Lubliner 1998); to be successful
it mustappeal visually and create a
positive impression (Sara 1990,
Grossman 2006); and the pack is
 part of The product (Simms & Trott
2010) and can influence
evaluation s of product quality
(Finco et al 2010). In line with
these observations the UK and
other tobacco markets have seen
extensive pack innovations in
recent years, including special
editions and reengineered pack
(Mitreva 2011, Neman 20111. The
tobacco industry has reported the
positive effects these
developments have had on sales
{Noodle & Hastings ZOIO). By
removing key elements of appeal,
plain packaging reduces the utility
of the pack as a marketing tool.

vii) That various journals, newspapers,

research papers have published the
need of plain packaging of cigarettes
and other tobacco products to reduce
consumption of the same. A special
issue of the journal Tobacco Control was
published in April 2015 with a series of
studies on the Australian experience,
providing yet further evidence
supporting the effectiveness of plain
packaging.

viii) Fact sheets on various aspects

associated with tobacco consumption
and plain packaging on the Australian
experience also provide strong
evidences supporting the effectiveness
of plain packaging [Cancer Council
Victoria March 2015]:

a. Factsheet No. 1 What has been

the impact of legislation to
standardize the packaging of
tobacco products in Australia?

“The Research in Victoria

found a reduction in the
appeal of smoking and
tobacco products among
adult smokers over the
phase in period of plain
packaging. Compared with
smokers using fully branded
packs, plain pack smokers
perceived their cigarettes to
be of lower quality and less
satisfying, and reported
being more likely to think
about and prioritise quitting.
Those smoking from plain
packs were also more likely
to support the policy”.

b. Factsheet No.2 What has

happened to sales of tobacco
products since the implementation
of plain packaging in Australia?
 “Official government data
from 2014 and beyond
suggest a continuing decline
in per capita consumption of
tobacco products in
Australia. The extent of
reduction in clearances over
the most recent 12 months
following two substantial
increases in excise/customs
duty on tobacco products
suggests a rate of decline
greater than would be
predicted based on
established estimates of
price elasticity alone”.

c. Facts sheet No.3: What has

happened to use of illicit tobacco
since the introduction of legislation
to standardise the packaging of
tobacco products in Australia?

“Overall to date, data

derived from sources
independent of the tobacco
industry suggests relatively
low and stable levels of use
of illicit tobacco in Australia”.
 d. Fact sheet no. 4: What is
happening to the prevalence of
smoking in Australia?

“The available evidence

suggests that plain
packaging is likely to be
contributing along with other
tobacco control policies to
continuing reductions in the
prevalence of smoking in
Australia”.

ix) That through the aforesaid Writ petition,

the petitioner has highlighted that
attractive packaging, brand images,
bright colours logos and misleading
terms have a seductive effect on
impressionable youth, many of whom
are Illiterate. Plain Packaging of tobacco
products is prevalent in various
countries and has been successful in
discouraging and reducing tobacco use.
Therefore India needs to introduce plain
packaging by banning logos branding
colours and promotional text on tobacco
packaging and the packaging should be
in standardized form in brown packets
having only health warnings with graphic
details of the same.

It is alarming that India despite having one

million tobacco related deaths each year

(which is much more than countries

implementing plain packaging), has taken no

steps to implement plain packaging of

cigarette and other tobacco products.

That this Hon’ble Court in Health for Million

Vs. Union of India & Ors, (Civil Appeal Nos.

5912-5913 of 2013), vide judgment and order

dated 22.07.2013, observed:

“The High Court overlooked the fact that

the consumption of tobacco and tobacco
products has huge adverse impact on
the health of the public at large and,
particularly, the poor and weaker
sections of the society which are the
largest consumers of such products and
that unrestricted advertisement of these
produces will attract younger generation
and innocent minds, who are not aware
of grave and adverse consequences of
consuming such products. Learned
counsel for the appellants pointed out
that as on date 10 lakhs people die
every year due to oral and lung cancer
caused by consumption of tobacco and
tobacco products. They further pointed
out that as per the study conducted by
National Institute of Health and Family
 Welfare 85 lakhs people are likely to die
annually by 2015 due to oral and lung
cancer caused by consumption of
tobacco and tobacco products.

We have no doubt that the Central

Government and the State
Governments across the country are
alive to the serious and grave
consequences of advertising tobacco
and various products manufactured by
using tobacco. They know that the
consumption of these products will
result in rapid increase in the number of
cancer patients and huge proportion of
the Budget earmarked for health of the
common man will have to be used for
treating the patients of cancer. In the
result, the appeals are allowed and the
impugned orders are set aside”.

Article 21 of the Constitution guarantees right

to a healthy life not only to its citizens but to
any person whomsoever. The aforesaid being
the most fundamental and essential right
amongst all cannot be ignored much less
overlooked for any reason whatsoever. The
consumption of tobacco by a person
deteriorates his health and wellbeing. It has
no positive effects which can circumvent much
less justify its promotion and marketing among
the youngsters.
Article 47 of the Directive Principles states
that the State shall prohibit use of intoxicating
drinks and drugs which are injurious to health,
except for medicinal purposes”. Applying the
aforesaid analogy to the criteria of tobacco,
makes it evident that the presence of tobacco
itself needs to be prohibited in toto. Tobacco in
itself is a dangerous product which leads only
to death and disease. It has no medicinal
usage. On the contrary, it harms and severely
prejudices the health and wellbeing of people.
Implementing measures to decrease
consumption of tobacco is in furtherance of
the duty of the State.

The Right to life embodied under Article 21 is

now also recognized to include the right to
health, thereby imposing obligations on the
State to take adequate measures to address
public health concerns. In State of Punjab v.
Mohinder Singh Chawla, AIR 1997 1225, the
Supreme Court categorically held that, ‘It is
now settled law that right to health is an
integral part of right to life’..

That the pernicious, inherent viciousness and

harmful effects of tobacco products are well
established and accepted medically as well as
in judicial pronouncements. Link between use
of tobacco products, cancer, cardiac and
respiratory diseases etc., is also well
 documented and accepted. At the same time
the efforts and desire of the tobacco
companies to attract young and gullible to the
world of tobacco is also marked. "Catch them
young" is the moto, and use of tobacco
products is projected as synonymous with
adulthood, modernity, affluence, social class
norm, elegance. The fear of falling sales,
adverse articles and medical and media
reports have prompted the tobacco industry to
portray tobacco use as glamorous and socially
acceptable.

08.03.2016 This Hon’ble Court vide order dated

08.03.2016 was pleased to issue Rule in the

aforesaid Writ Petition (C) No.134/2016, filed

by the Petitioner herein. True typed copy of

the Order dated 08.03.2016 passed by this

Hon’ble Court in Writ Petition (C) No.134/2016

is annexed herewith and marked as

ANNEXURE P-1 [Pages

04.05.2016 This Hon’ble Court in SLP (C) No.10119 of

2016, vide order dated 04.05.2016 directed

transfer of all cases challenging the 2014

rules to Karnataka High Court and further

directed enforcement of the 2014 rules. True

 typed copy of the Order dated 04.05.2016

passed by this Hon’ble Court in SLP (C)

No.10119 of 2016 is annexed herewith and

marked as ANNEXURE P-2 [Pages

15.12.2017 The Hon’ble Karnataka High Court vide

impugned judgment and order dated

15.12.2017, quashed the Cigarettes and

Other Tobacco Products (Packaging and

Labelling) Amendment Rules, 2014, that

prescribed printing of health warnings

covering 85% of principal display area of the

pack and restored 2008 health warnings that

requires printing of warning covering only 20%

of the principal display area of the pack.

.12.2017 Hence this Special Leave Petition before this

Hon’ble Court.
 IN THE SUPREME COURT OF INDIA
[S.C.R. Order XXI Rule 3(1)(a)]
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
S.L.P. (Civil) No. of 2017
POSITION OF THE PARTIES
BETWEEN In the Hon’ble In this Hon’ble
High Court Court
Umesh Narain Sharma,
S/o Late R.K. Sharma,
R/o H.No. 16-C, Patrika Marg, Not Party Petitioner
Civil Lines, Allahabad, Uttar Pradesh
VERSUS
1 The Tobacco Institute of India,
International Trade Tower, Petitioner Contesting
rd
316-318, 3 Floor, Block 'E', Respondent
Nehru Place, New Delhi – 110019 No.1
Through its Director
2 Union of India,
Ministry of Health & Family Welfare Respondent Contesting
Nirman Bhawan, New Delhi – 01, Respondent
Through its Secretary No.2

TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE
PETITIONER ABOVE NAMED:

MOST RESPECTFULLY SHEWETH:

1. The present Special Leave Petition under Article 136 of
the Constitution of India is filed by the Petitioner against
the Impugned Final Judgment and Order dated
15.12.2017 passed by the Hon'ble High Court of
Karnataka at Bengaluru in Writ Petition No.4470 of 2015,
whereby the Hon'ble High Court was pleased to partly
allow the said Writ Petition by quashing the Pack Warning
Rules of 2014 made under Cigarettes and Other Tobacco
Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, Supply and
 Distribution) Act, 2003 for larger warnings on the tobacco
products covering 85% of the display area. It is
respectfully submitted that the said decision is not hugely
detrimental to public interest and has put to naught efforts
to discourage tobacco consumption through larger pack
warnings on tobacco products. The Rules of 2014 which
were in force since 01.04.2016, was arbitrarily quashed
after one and half years of implementations.

1A. The Petitioner has exhausted all the legal remedies

available to it. There is no other alternative and equally
efficacious remedy (whether Writ or LPA) available to the
Petitioner. Therefore, the Petitioner is approaching this
Hon’ble Court to meet the ends of justice.

1B. The copy of the impugned order is neither available with

the Petitioner, as he was not a party before the Hon'ble
High Court, nor the same is available on the official
website of Hon'ble High Court of Karnataka at Bengaluru,
as the same has not been uploaded yet.

2. QUESTIONS OF LAW:
I. Whether Parliament has legislative competence to
enact the Cigarettes and Other Tobacco Products
(Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, Supply and
Distribution) Act, 2003 and Rules to give effect to
the same?

II. What is the scope and extent of the fundamental

right to trade or business, particularly in the context
of law enacted in the interest of general public?
 III. Whether the Act of 2003 and the Rules that have
been framed to give effect thereto violate any of the
fundamental rights guaranteed under Articles 14
and 19 of the Constitution?

IV. Whether in writ proceedings, the High Courts may

quash legislation enacted to protect and improve
public health, particularly having regard to larger
public interest favoring the continued operation of
law?

3. DECLARATION IN TERMS OF RULE 3(2):

The Petitioner states that no other petition seeking leave
to appeal has been filed by it against the Impugned Final
Judgment and Order dated 15.12.2017 passed by the
Hon'ble High Court of Karnataka at Bengaluru in Writ
Petition No.4470 of 2015.

4. DECLARATION IN TERMS OF RULE 5:

The produced Annexures P-1 to P-4 (except Annexures
P-3 & P-4) alongwith the Special Leave Petition are true
copies of the pleadings/ documents which formed part of
the records of the case in the Court below against whose
order the leave to appeal is sought for in this petition.

5. GROUNDS:
The Petitioners crave leave to appeal inter-alia on the
following grounds:

A. It is respectfully submitted that the Rules, 2014 are

amendments to the Cigarettes and Other Tobacco

Products (Packaging and Labelling) Rules, 2008

 (hereinafter referred to as “Rules, 2008”), which

were implemented subsequent to the direction of

this Hon’ble Court. The implementation of

Regulations mandating 85% pictorial warning on

both sides of Tobacco products was a culmination of

an extremely long, cumbersome and excruciating

fight by public heath activists, people whose life and

family had been ruined by Tobacco, against the

mighty Tobacco industry. This Hon’ble Court has

played a pivotal role in this extremely important

journey which saw complete ban of advertising of

tobacco products, from the time that tobacco

industry used to be at the forefront of all glitzy

advertising and sponsorship of mega events to

attract the youth. The tobacco industry always

attempted to project tobacco products as ‘cool’,

‘macho’, ‘classy’, ‘rebellious’, ‘affluent’, ‘modern’ etc.

Graphic and big pictorial warnings bust the myth of

tobacco products being cool, stylish and

fashionable.

B. It is respectfully submitted that Tobacco is the only

industry which loses 1/3rd of its consumers every

year on account of death or disability and, therefore,

 it has to constantly tap at youth and impressionable

minds to ensure the clientele continues and grows.

Graphic pictorial warnings which occupy 85% of the

package on both sides will assist not only the

existing consumers of tobacco products to

understand the grave health risks involved but will

also dissuade the younger generation from

becoming tobacco addicts. This also ensures that

tobacco products themselves become effective

tools of spreading public health message and

discouraging consumption at no cost to the

government, as the government today expends

enormous amounts of money to spread the public

health messages by print, audio visual and other

forms of media.

C. It is respectfully submitted that the impugned order

will have the serious and numbing impact on India’s

fight against Tobacco, it is regressive, retrograde

and jeopardizes future generations of the Country

having maximum number of youth in the world.

D. It is respectfully submitted that the statement of

objects and reasons of the COTPA Act, 2003, as

considered, accepted and stipulated by the

Parliament of the Country, are extremely telling and

are reproduced here for ready reference:-

“An Act to prohibit the advertisement of, and to

provide 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.

WHEREAS, the Resolution passed by the 39 th

World Health Assembly (WHO), in its
Fourteenth Plenary meeting held on the 15 th
May, 1986 urged the member States of WHO
which have not yet done so to implement the
measures to ensure that effective protection is
provided to non-smokers from involuntary
exposure to tobacco smoke and to protect
children and young people from being
addicted to the use of tobacco;

AND WHEREAS, the 43rd World Health

Assembly in its Fourteenth Plenary meeting
held on the 17th May, 1990, reiterated the
concerns expressed in the Resolution passed
in the 39th World Health Assembly and urged
Member States to consider in their tobacco
control strategies plans for legislation and
other effective measures for protecting their
citizens with special attention to risk groups
 such as pregnant women and children from
involuntary exposure to tobacco smoke,
discourage the use of tobacco and impose
progressive restrictions and take concerted
action to eventually eliminate all direct and
indirect advertising, promotion and
sponsorship concerning tobacco;

AND WHEREAS, it is considered expedient to

enact a comprehensive law on tobacco in the
public interest and to protect the public health;

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;

AND WHEREAS, it is expedient to prohibit the

advertisement of, and to provide for regulation
of trade and commerce, production, supply
and distribution of, cigarettes and other
tobacco products and for matters connected
therewith or incidental thereto”

The impugned order falls foul of the statement of

objects and reasons of the COTPA Act 2003 and

deserves to be quashed and set aside on this

ground alone.
E. It is respectfully submitted that the use of tobacco is

a prominent risk factor for 6 to 8 leading causes of

death and almost 40% of the Non Communicable

Diseases (NCD) including cancers, cardio-vascular

diseases and lung disorders are directly attributable

to tobacco use. The number of deaths every year in

India which is attributable to tobacco use is almost

12 lakhs. If the current trends continue and if

effective steps are not taken to control tobacco

consumption, it is estimated that by the year 2020,

tobacco use will account for 13% of all deaths in

India every year. Further according to the WHO

Global Report on "Tobacco Attributable Mortality"

2012, seven percent of all deaths (for ages 30 and

over) in India are attributable to tobacco use.

F. It is respectfully submitted that the use of tobacco

and the associated mortality and morbidity are a

significant economic burden on society. As per the

findings of the study titled “Economic Burden of

Tobacco Related Diseases in India” (2014)

commissioned by Ministry of Health & Family

Welfare the total economic costs attributable to

tobacco use from all diseases in India in the year

 2011 for persons aged 35-69 years amounted to Rs.

1,04,500 crores. This estimated cost was 1.16% of

the GDP and was 12% more than the combined

state and central government expenditures on

health in 2011-12. It is further submitted that

tobacco and poverty form a vicious link as it tends

to be consumed more by the poor. In turn, it

contributes to poverty through loss of income and

loss of productivity due to ill-health and premature

death.

G. It is respectfully submitted that Studies report high

prevalence of tobacco use amongst children and

youth of the country.

H. It is respectfully submitted that this Hon’ble Court in

Civil Appeal Nos.5912-5913/2013 titled as “Health

for Million Vs. Union of India & Ors.” in its order

dated 22.07.2013, observed:

“The High Court overlooked the fact that the

consumption of tobacco and tobacco products
has huge adverse impact on the health of the
public at large and, particularly, the poor and
weaker sections of the society which are the
largest consumers of such products and that
 unrestricted advertisement of these produces
will attract younger generation and innocent
minds, who are not aware of grave and
adverse consequences of consuming such
products. Learned counsel for the appellants
pointed out that as on date 10 lakhs people
die every year due to oral and lung cancer
caused by consumption of tobacco and
tobacco products. They further pointed out
that as per the study conducted by National
Institute of Health and Family Welfare 85
lakhs people are likely to die annually by 2015
due to oral and lung cancer caused by
consumption of tobacco and tobacco
products.

We have no doubt that the Central

Government and the State Governments
across the country are alive to the serious and
grave consequences of advertising tobacco
and various products manufactured by using
tobacco. They know that the consumption of
these products will result in rapid increase in
the number of cancer patients and huge
proportion of the Budget earmarked for health
of the common man will have to be used for
treating the patients of cancer.”

I. It is respectfully submitted that the Parliament

Standing Committee on Science and Technology,

Environment and Forests, Rajya Sabha, in its 285 th

 report, on “Effects of Tobacco Curing on

Environment & Forest” presented on 10 th May, 2016,

observed:“The Committee finds that financial

benefits that accrue in various forms on account of

tobacco are negligible compared to losses suffered

in terms of deaths of people and the expenditure

incurred by the Government on treatment of

tobacco related problems of people. Besides

financial burden on the exchequer, its social

cost/effect on society in terms of expenditure on

treatment on tobacco related diseases and loss of

lives, is enormous.”

J. It is respectfully submitted that the Cigarettes and

other Tobacco products (Prohibition of

Advertisement and Regulations of Trade and

Commerce Production, Supply and Distribution) Act

2003(hereinafter as COTPA), is a beneficial

legislation enacted by the Government of India in

the interest of the public at large. This intention of

the legislature is reflected in the preamble to the

said Act, the object and purpose of which is to

discourage the use of tobacco, with emphasis on

 protection of children and young people from being

addicted to the use of tobacco.

K. It is respectfully submitted that the statement of

objectives as enshrined in the preamble to COTPA

also considers it 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.

L. It is respectfully submitted that India is a party to the

WHO Framework Convention on Tobacco Control

(hereinafter as FCTC), an international public health

treaty to protect present and future generations from

the devastating health, social, environmental and

economic consequences of tobacco consumption.

M. It is respectfully submitted that Article 11 of FCTC

and its guidelines mandates that each package of

tobacco products and any outside packaging and

Labelling of such products shall carry health

warnings describing the harmful effects of tobacco

use and that health warnings and messages should

cover as much of the principal display areas as

 possible as larger health warnings with pictures are

more effective than smaller warnings.

N. It is respectfully submitted that this Hon’ble 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.

O. It is respectfully submitted that the Cigarettes and

Other Tobacco Products (Packaging and Labelling)

Amendment Rules, 2014, was enacted in exercise

of the powers conferred by sub-section (1) of

Section 7, Section 8, Sub- Section (2) of Section 9,

Section 10 and Section 31 of COTPA, and

prescribing mandatory display of specified health

warnings on tobacco product packs, to realize the

objective of COTPA for discouraging tobacco use.

P. It is respectfully submitted that the graphic health

warnings on tobacco product packages are a potent

tool to create awareness about the serious and

adverse health consequences of tobacco usage

 especially among the youth, children and illiterate

persons.

Q. It is respectfully submitted that there is ample

evidence to show that effective warning labels

increase knowledge about risks associated with

tobacco use and can decrease intentions to use

tobacco among adolescents, persuade tobacco

users to quit, and prevent ex-users from starting

again.

R. It is respectfully submitted that the Hon’ble

Allahabad High Court in the Writ Petition No.

1078(M/B) of 2013, pertaining to implementation of

plain packaging for tobacco products, vide its

judgment dated July 21, 2014, held:

“ …23 “Under Article 47 of the Constitution of

India a duty is vested in the State to raise the
level of nutrition and standard of living to
improve public health as amongst its primary
duties. There cannot be any doubt to the fact
situation that smoking or consumption of
tobacco products is extremely injurious to
health and is cause of several diseases, so it
adversely affects the general health of the
country. At present, the cigarettes are being
packed in India in very attractive colours, and
the same are being displayed openly in open
shops. Such colourful packaging draws the
attention of the youths and it becomes an
incentive in the mind of the immature youth to
start smoking but if plain packaging scheme is
implemented then all the cigarettes brand
shall be packaged in a common form, in a
common colour. Only on a restricted part of
the packet the name shall be displayed. On
the rest part of the packets the health warning
as required under the Rules of 2008 have to
be printed. This can be done only by strict
regulation. We have been informed that after
implementation of the plain packaging rules in
Australia, the sale of cigarettes has
considerably reduced. Australia has adopted
plain packaging in the year 2013. If only in
one year the sale of cigarettes starts
decreasing then it is very positive sign to
accept said plain packaging formula in India
also. We found no harm in implementing this
scheme”….

…24. “The scheme of plain packaging must

be welcomed by all concerned and the
Government of India must consider to
implement the said scheme at the earliest. We
therefore, strongly recommend to the
Government of India to consider the feasibility
of implementing the plain packaging of
 cigarettes and other tobacco products. We
hope and trust that necessary steps shall be
taken by the Union of India, at the earliest”...

S. It is respectfully submitted that this Hon’ble Court

vide order dated 08.03.2016, has issued Rule in the

petition, Umesh Narain Sharma Vs UOI(Writ

Petition No.134/2016), filed for implementation of

plain packaging of tobacco products in India.

T. It is respectfully submitted that there is also

sufficient evidence to show that prominent health

warnings and messages on tobacco product

packages increase both the awareness of risks and

the desire to quit among smokers and prevent non-

users from taking up the habit.

U. It is respectfully submitted that the Parliamentary

Committee on Subordinate Legislation (COSL) have

recommended implementation of large pictorial

health warnings on tobacco product packages.

V. It is respectfully submitted that the Cigarettes and

Other Tobacco Products (Packaging and Labelling)

Amendment Rules, 2014, vide GS.R No. 727 (E)

dated 15th October 2014, that required

 printing/display of health warnings, covering 85% of

the tobacco product packages, was enacted on the

recommendation of an expert committee.

W. It is respectfully submitted that the Cigarettes and

Other Tobacco Products (Packaging and Labelling)

Amendment Rules, 2014, were in force since May

2017 and as per the Global Adult Tobacco Survey

India Report 2017, 62% of cigarette smokers, 54%

of bidi smokers and 46% of smokeless tobacco

users thought of quitting because of warning label

on tobacco products.

6. GROUNDS FOR INTERIM RELIEF:

It is respectfully submitted that the impugned order is bad

in law and on facts. The impugned judgments suffer from

several other infirmities as brought out in the grounds. It is

respectfully submitted that the Petitioner has a strong

case on merits and there are important issues that arise

in the facts and circumstances of the present case, which

require the consideration of this Hon’ble Court. Further, in

view of the immense implications on public health and

safety, the balance of convenience lies strongly in favour

of grant of interim stay of the impugned judgment. It is

 respectfully submitted that no prejudice would be caused

to the Respondents if stay as prayed for were to be

granted as the Respondents are not prevented from

carrying out their respective trade and business, while

grave and irreparable prejudice would be caused to public

interest and health if stay as prayed for were to be

declined.

7. MAIN PRAYER:

It is therefore, most respectfully prayed that this Hon’ble

Court may graciously be pleased to:

a) grant Special Leave to Appeal to the Petitioner

against the Impugned Final Judgment and Order

dated 15.12.2017 passed by the Hon'ble High Court

of Karnataka at Bengaluru in Writ Petition No.4470

of 2015; and/or

b) pass such other further order/orders as this Hon’ble

Court may deem fit and proper in the facts and

circumstances of the present case in the interest of

Justice.

8. INTERIM RELIEF:
It is, therefore, most respectfully prayed that this Hon’ble

Court may graciously be pleased to:

 a) pass an ex-parte ad-interim order staying the

operation of the Impugned Final Judgment and

Order dated 15.12.2017 passed by the Hon'ble High

Court of Karnataka at Bengaluru in Writ Petition

No.4470 of 2015; and/or

b) pass such other further order/orders as this Hon’ble

Court may deem fit and proper in the facts and

circumstances of the present case in the interest of

Justice.

AND FOR THIS ACT OF KINDNESS PETITIONER, AS IN

DUTY BOUND, SHALL EVER PRAY.

DRAWN & FILED BY:

DRAWN ON: .12.2017

FILED ON: .12.2017

[MS AISHWARYA BHATI]

Advocate for the Petitioner
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2017
IN THE MATTER OF:
Umesh Narain … Petitioner
VERSUS
The Tobacco Institute of India & Anr. … Respondents

CERTIFICATE

Certified that the Special Leave Petition is confined only to the

pleading before the Court whose order is challenged and the
other documents relied upon in those proceedings. No
additional facts, documents (except Annexures P-3 & P-4) or
grounds have been taken herein or relied upon in the Special
Leave Petition. It is further certified that the copies of the
documents/annexure attached to the Special Leave Petition are
necessary to answer the question of law raised in the petition or
to make out grounds urged in the Special Leave Petition for
consideration of this Hon’ble Court. This certificate is given on
the basis of the instructions given by the Petitioner/persons
authorized by the Petitioner whose affidavit is filed in support of
the Special Leave Petition.

DRAWN & FILED BY:

NEW DELHI
FILED ON: .12.2017

[MS AISHWARYA BHATI]

ADVOCATE FOR THE PETITIONER
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. OF 2017
IN THE MATTER OF:
Umesh Narain … Petitioner
VERSUS
The Tobacco Institute of India & Anr. … Respondents
AFFIDAVIT
I, Umesh Narain Sharma, S/o Late R.K. Sharma, R/o H.No. 16-
C, Patrika Marg, Civil Lines, Allahabad, Uttar Pradesh,
presently at New Delhi, do hereby solemnly affirm and declare
as under:

1. That I am the Petitioner in the aforesaid matter and as

such I am well conversant with the facts and
circumstances of the case and hence, I am competent to
swear this affidavit.
2. That the accompanying Special Leave Petition containing
Paras from 1 to 8, Pages from to and List of
Dates from to & I.As. has been drafted as per my
instruction by my counsel and I have been read over the
contents thereof and I understood the same.
3. That the Annexures enclosed with the SLP are true and
correct copies of their respective originals.
4. That the contents of the aforesaid SLP are true and
correct to the best of my knowledge and belief and
nothing material has been concealed therefrom.

DEPONENT
VERIFICATION:

Verified at New Delhi on this the day of December, 2017

that the contents of the aforesaid affidavit are true and correct
to the best of my knowledge and belief and nothing material
has been concealed therefrom.

DEPONENT
 BEFORE THE HON'BLE HIGH COURT OF KARNATAKA AT
BENGALURU
WRIT PETITION NO.4470 OF 2015

MEMO OF PARTIES

The Tobacco Institute of India, International Trade Tower, 316-

318, 3rd Floor, Block 'E', Nehru Place, New Delhi – 110019,
Through its Director
… Petitioner

Versus

Union of India, Ministry of Health & Family Welfare, Nirman

Bhawan, New Delhi – 110001, through its Secretary
… Respondent

DRAWN & FILED BY:

NEW DELHI
FILED ON: .12.2017

[MS AISHWARYA BHATI]

ADVOCATE FOR THE PETITIONER