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Smoking in public places: A violation of Fundamental rights- Analysis, recent trends, and other related issues

Smoking is a process of breathing (Inhaling and Exhaling) the fumes of plant material whether


Smoking is a process of breathing (Inhaling and Exhaling) the fumes of plant material whether Marijuana, Hashish, or Tobacco. In recent trends[1], Tobacco is the main and popular ingredient consumed by people in the form of cigarettes, cigars, or hookahs. Consumption of tobacco is not a new trend. People in ancient times had been consuming and it is continued till the present time. What has changed is the form, the rest of the concept is the same. The word ‘Tobacco’ has been originated from the Spanish or Portuguese word Tabaco. Tobacco was discovered by the natives of South America and was introduced in other parts of Europe and the territory of India during Colonial rule.[2] It has always been an area of concern as it causes adverse effects on the health of the public. Still, the practice is so common that despite having stringent laws, the situation is found to be the same. Every year hundreds of people die due to smoking habits. What is more unfortunate is the position of non-smokers. Inhaling passive smoke make them suffer from incurable diseases and disorders and ultimately death. This is not only inhuman brutality but an infringement of the rights of those innocent people having no fault. There is a need for strict laws and a better process of implementation so that the situation could be controlled.

Smoking in public areas 

The smoke of a loose cigarette contains lots of harmful components, which when burned produce toxicant gases. These gases not only become a leading cause of severe chronic diseases like (hypertension, diabetes, and lungs and cardiovascular disease) to smokers but equally affect the non-smokers who inhale that passive smoke ( combination of smoke produced from the burning end of the cigarette and the smoke breathed out).[3] The place where the public have access, including hospital buildings, railway waiting rooms, amusement centres, restaurant, public offices, court buildings, educational institutions, and libraries, people of different age, and physical as well as mental condition assemble and enjoy their life.[4] This second-hand smoke affects them adversely. If a pregnant woman inhales the smoke of a cigarette, the baby inside her womb is likely to be born lightweight and if an infant is exposed to that smoke, he is likely to suffer from Sudden Infant Death Syndrome (SIDS) in the early years of his life. Also, he is likely to become habitual and a smoker in his teenage itself.[5] Smoking in public places simply increases the risk of death and somehow deprives others to live a happy and healthy life.

Taxes on smoking products

1 packet Cigarette having 20 sticks costs Rs. 330, which consists of 50% tax components in it. Products containing tobacco fall under the highest GST slab of taxes (28%) in India which also attracts other taxes of 52.5% imposed by the government of India. Apart from this, India is the country, according to the National Health Mission, which has signed the WHO convention on tobacco control, recommending 75% taxation on the retail prices of tobacco products, including cigarettes (though, India does not impose taxes according to the WHO recommendation).[6] Finally, Nirmala Sitharaman, Finance Minister, in the 2023-24 budget, hiked the taxes on tobacco products, through an increase in the National Calamity Contingent Duty (NCCD) on cigarettes.[7] 

Clean environment: An inalienable right 

The constitution guarantees all persons, a right to Life and Personal Liberty under which they are subjected to have access to a clean environment. It is also included that violation of environmental norms is a criminal offense.[8] Also, the Right to a clean environment was held to be a right to life under Article 21.[9] Since Constitution provides various disciplines and guidelines for the betterment of the public, it is expected that the people follow such regulations led by the apex court. But, unfortunately, a few among the large population of the country consider these provisions. Apart from this, it is surprising to note that, people knock on the doors of the court when any of their fundamental rights are infringed, but, no one pays heed to the violation of the 11 fundamental duties inserted by the 42nd Amendment Act 1976.[10] Smoking in public places not only infringes on the rights of non-smokers to have a right to a clean environment and life but also focuses on the point that there should be vigilance and implication of stringent laws regarding the issue. 

Anti-Smoking Laws 

The Indian parliament has passed various completely developed acts for the prevention of smoking in public areas. The series of development can be seen by observing the procedures established by the Indian government over time. In the first instance, it was made necessary for the cigarette manufacturers to display a warning on the packaging, stating that it is injurious to health under the act of Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975.[11] Later, in 2003, an attempt was made to protect the public from being involuntarily exposed to secondhand smoke and to prevent the youth from getting addicted to smoking under the act of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulations of Trade and Commerce, Production, Supply, and Distribution) Act, 2003.[12]

Section 4 of COTPA[13], laid down certain provisions regarding the prohibition of smoking in public places. The law imposes a duty on the manager in charge of those public places to ensure that nobody smokes. The guidelines are as follows:

  • Display of warning signs 
  • Properly mentioned the contact number of the authority
  • Hotels with 30 rooms and restaurants with a capacity of a minimum of 30 people are allowed to have separate smoking areas with a condition that it should not be the entrance and exit of such places. 

It was finally held in a landmark judgment that passive smoking by non-smokers is a violation of their fundamental right and public smoking is a health hazard that ultimately, directly or indirectly results in lakhs of deaths and economic loss of the nation[14].


It is a serious area of concern that people should know about their rights and how to avail of them. Smoking, in the present time, is considered not to be a bad habit but a cool gesture for the youth specifically. They think it would create a good impression on others. Also, peer pressure is one of the factors in their indulgence in smoking activities. Children of a quite young age are also getting attracted by their elders and become smokers in the very starting years of their lives. Passive smoking is injurious to non-smokers as a result of which they suffer from chronic diseases and ultimately death. There is a need to implement the laws properly and on the part of citizens, it is necessary to understand their duties towards the state and other human beings. Why should one bear the consequences of the acts of others? The normalized attitude toward smoking in public areas should be considered on a serious note so that a large number of the population be secure.

Author(s) Name: Hiba Irfan Khan (Faculty of Law, Aligarh Muslim University)


[1] ‘Smoking Tobacco’ (Britannica)  <> accessed 23 March 2023

[2] ‘Prohibition Of Smoking In A Public Place In India’ (Legal Services India) <> accessed 24 March 2023

[3] Gyanendra Shravan, ‘The banning of public smoking’ (Times of India, 20 March 2022) <> accessed 23 March 2023

[4] The Ciggerates and other Tobacco products (Prohibition of Advertisement and Regulations of Trade and Commerce, production, supply and distribution) Act 2003, s 3(l)

[5] Gyanendra Shravan (n 3)

[6]‘Anti-smoking Laws in India’ (Finology, 17 March 2023) <,to%20smoke%20at%20that%20place.> accessed 25 March 2023

[7] ‘Union Budget 2023-2024’ (India Gov) <> accessed 25 March 2023

[8] Gram Seva Samiti v Ministry of Environment, Forest and Climate Change (2018) Original Application No. 1042/2018

[9] M.C. Mehta v Union of India (1997) 1 SCC 388

[10] Constitution of India 1950, part IV, art 51A

[11] Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975

[12] The Cigarettes and other Tobacco products (Prohibition of Advertisement and Regulations of Trade and Commerce, Production, Supply and Distribution) Act, 2003

[13] Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulations of Trade and Commerce, Production, Supply, and Distribution) Act 2003, s 4

[14] Murli S. Deora v Union of India (2002) AIR SC 40