“EXPLAINING THE DIFFICULTIES AND PROSPECTS FOR IMPLEMENTING SMOKE-FREE AREA WITH SECTION 4 OF THE COTPA, 2003”

Abstract

Second-hand smoking or passive smoking is very dangerous for one’s health and can cause various forms of disease such as various types of cancer in the lungs, pancreas, stomach, liver, kidney, oral cavity, cervix, rectum, chronic diseases, heart diseases, and stroke. Second-hand smoking is a very critical issue as passive smokers are unaware and they unknowing inhale the smoke of cigarette. The research paper studies what are the chemicals found in the smoke of cigarettes and are dangerous to every human soul.

The implementation of a smoke-free environment has been a significant challenge in India since the enactment of the Cigarette and Other Tobacco Products Act, (COTPA) 2003. The research paper examines the legal challenges and prospects of implementing a smoke-free environment under Section 4 of COTPA.

The finding of the study indicates precedent supporting having a smoke-free environment and section 4 of COTPA provides a strong legal framework for creating a smoke-free environment. The study also highlights the prospects for strengthening the implementation of a smoke-free environment under Section 4 of COTPA. The paper concludes that the implementation of a smoke-free environment under Section 4 of COTPA is a complex and challenging Task that requires the efforts of everyone. The finding of the research can help policymakers for developing strategies for overcoming legal challenges and promoting the prospects of a smoke-free environment in India.

Keywords: Tobacco, Tobacco Products, Cigarette, Second-Hand Smoking, Death, Disease, Lung Cancer, Health Problems

Introduction

Consumption of Tobacco and smoking is common nowadays resulting in many deaths over the decades. According to the World Health Organisation, the consumption of tobacco results in 80 lakh people’s death each year and out of 80 lakh people 70 lakh people’s deaths are direct the result of tobacco consumption. 12 lakh people died of second-hand smoking/Passive Smoking[1].

According to the World Health Organisation in India, 13 lakh people are dying due to the usage of tobacco. Dies with the disease as lung disease, chronic diseases, various cancer diseases, stroke, and cardiovascular disease[2]. According to a research paper, 9 lakh people died due the Second-Hand Smoking and 30% of the Indian population is found to be Second-hand Smoking[3].

Another Data from the World Health Organization released in 2020 stated in India, one in ten people would develop cancer during their lifetime and one in fifteen would die due to the cancer[4].

India passed Cigarette and Other Tobacco Products Act in the year of 2003 for the reduction of tobacco usage. The provision of the Act also mainly focused to create a smoke-free environment in Public Places, including educational institutions, railway stations, workplaces, grocery stores, and hospitals. However, after having an Act creating a smoke-free environment still smoking in public places is often habitual. Here the serious trouble is for those who don’t smoke and involuntarily become second-hand smokers. The Research paper aims at the hindrance faced in having a smoke-free environment in public places and measure and suggestion for implementing a strict smoke-free environment with the help of COTPA 2003.

Research Methodology

The Research paper is descriptive and based on the secondary sources for the deep analysis of COTPA, 2003 and its implementation for Creating Smoke-free Environment in public places from the smoke of a cigarette. The research paper also explains the risk of health from the inhalation of cigarette smoke by Second-Hand Smokers. The Secondary source used for the research includes journal, websites, and newspapers.

Review of Literature

The second-hand smoke-ignored implication by Naeem Z.

The author explains in detail the meaning of First-hand smoker and second-hand smoker. The paper also finds how one close to a smoker gets infected and can cause diseases such as cardiovascular disease, heart attack, stroke, heart disease, and the lining of blood. The author also suggests measures for the prevention of children from cigarette smoke.

Secondhand Smoke; An unintended public health concern by Garg S and Sharma AD

The author of this research paper finds that secondhand smoke is more dangerous than first-hand smoking. Highlight details data on the death of children, infants, pregnant women, men, and old age people who are associated with involuntarily passive smoking. The research paper finds how can develop serious health Risk diseases with subject to second-hand smoking. The research paper also focuses on the provision of COTPA, 2003. The research deals with the issue of secondhand smoke in India and in how multiple ways tobacco products are affecting the growth of India.

Compliance monitoring of prohibition of Smoking (under section-4 of COTPA) at the tertiary health-care institution in a smoke-free city in India by Sonu, Patro, Binod Kumar, Triparthy, Jaya Prasad,  

The research paper has a deep analysis of Section 4 of the COTPA, 2003 which forbids smoking in public places and the research paper finds there is no strict compliance with section 4 by the smoking group in public places for which the research paper provides various measure and methods to implement the act in an effective way with strict compliance.
Meaning of Second-Hand Smoking (SHS)?

In general terms, second-hand smoking means involuntary or voluntary inhalation of the smoke lit from any tobacco products such as bidi, cigarettes, e-cigarettes, pipes, hookah, cigars, etc. Second-hand Smoking includes someone who is not actively smoking by his hand but there is a inhalation of the smoke. It may also include where a person is standing near the person who is actively smoking and the person inhaled the smoke from the cigarette. This is called Second Hand-Smoking. It is also known to be Passive Smoking.

What does contain in Cigarette smoke?

According to the Centres for disease control and prevention, the smoke of commercial tobacco have more than hundreds of harmful chemicals and around 7000 chemicals are present in commercial tobacco smoke[5].

In general, 7000 chemicals are present in any tobacco product out of this minimum 50 chemicals are called to be as cause cancer. and when a person lights a cigarette around 7000 chemicals are present in short, all these chemicals can be called cancer causing (carcinogenic). The most dangerous chemicals are nicotine, Tar, Arsenic, Ammonia, Acetone, Toluene, Methylamine, Polonium, Methanol[6].

Nicotine: Nicotine acts as a drug that increases the habit of addiction slowly and one becomes addicted at the same time as the person with no idea of getting trapped in addiction due to nicotine. Study shows nicotine reaches to the brain in less than 10 seconds of inhalation[7].

Tar: Tar is a brown substance that forms when tobacco is lit in a cigarette. It contains harmful chemicals as carcinogens and damages the lungs and causes lung cancer, emphysema, chronic bronchitis, etc[8].

Arsenic: It is a toxic chemical that is found in cigarette smoke. It causes cancer in the lung, liver, kidney, and urinary bladder. It also damages the cardiovascular system which increases the risk of heart disease [9].

Ammonia: It is a colourless gas with a pungent which is commonly used in cleaning products and fertilizers. It irritates the respiratory system and eyes. Exposure to it can lead increase in the risk of cancer and heart disease[10].

Acetone: Acetone is a colorless substance used as a solvent and found in household and industrial products. Subject to it can irritate the eyes, skin, and respiratory system [11].

Toluene: It is a colorless, flammable liquid used as a solvent and founds in paints. Exposure to toluene causes health problems such as headache, dizziness, and damage to the nervous system [12].

Methylamine: Which is a colourless gas found in products of pesticides, pharmaceuticals, and plastic. It can cause respiratory failure and heart disease [13].

Polonium: It is a highly radioactive metal that acts toxic to humans when it is inhaled or absorbed into the skin. It can be found in the environment but also produces in nuclear reactors artificially. Polonium-210 is found in cigarette smoke and its portion in cigarettes is less but all the radioactive properties make it highly dangerous and cause risk of cancer, heart diseases[14].

Methanol: which is used as the solvent, and fuel can cause irritation in the eye and skin when the toxic is ingested or inhaled. Found in the smoke of cigarettes and exposure to it can cause risk of cancer, respiratory problems, multiple adverse reproductive outcomes[15].

These are all the chemicals that are found in the smoke of Cigarettes of which not a single chemical is unharmful to a living soul. Smoking cigarette is injurious to health that is known to even a regular smoker. The smoker was also aware that somehow while smoking they are making their lives lesser but the smoker wouldn’t be aware that the smoke of cigarette is also making their lives shorter who is standing near to him/her.

Does Second-Hand Smoking (SHS) is Harmful?

Second hand smoking or passive smoking is very dangerous to one’s health it is already mentioned how various types of disease can be caused by just inhalation of cigarette smoke.  According to the toll of India, each year in India about 12 lakh people dead and are found to be exposure to second-Hand smoke. 30.25 of people are found to be passive smokers at indoor workplaces. 7.4% are found at restaurants and 13.3% are found at public transportation[16].

According to the U.S Environment Protection agency, passive smoking is also known to be as Human Carcinogen (Cancer-causing Agent). The chances of having lung cancer increase 20% to 30% by a second-hand smoker as per the estimation of the U.S surgeon general[17].

What if smoker smoking in public places?

There may be a chance that smokers smoke in public places such as gardens, restaurants, public transportation, railway station, and bus station. Then cigarette smoke would inhale by numerous people they could be children, boys, girls, young women, men, working professionals, pregnant women, and senior citizens.

So indirectly there are involuntarily inhaling the smoke and inviting unwanted disease. Children and infants are especially vulnerable to the outcome of passive smoke, as their bodies are still developing stage.

What if non-smoker is pregnant women and exposed to second-hand smoking?

When a pregnant woman is a non-smoker and exposed to a passive smoker then It will cause harmful effects to both the mother and the fetus. Here are some possible effects of second-hand smoking o pregnant non-smokers:

1. Increased risk of pregnancy complications: The risk of several pregnancy complications would be premature birth and low birth weight.
2. Increased risk of birth defects: Birth defects would be such as palate, heart defects, and neural tube defects.
3. Increased risk of developmental Problems: Development problems caused in children could be learning difficulties and behavior problems.
4. Increased risk of respiratory problems: inhaling respiratory problems would inflict on both mother and child. This can lead to complications such as asthma, bronchitis, and pneumonia. 

Women during pregnancy should avoid second hand exposure as much as possible it would be good for the mother and fetus. Pregnant should be warned to her friends, and relatives about the same and should visit such places which are smoke-free[18].

What if non-smoker is having diabetes diseases and exposed to second-hand smoking?

When a person is suffering from diabetes and exposed to second-hand smokers then it will impact harmful effects on the person’s health. In diabetes, a person has a chronic condition in which the body has difficulty regulating blood sugar levels, and exposure to second-hand smoker can create complications of diabetes.

1. Developing risk of cardiovascular disease: Non-smokers with diabetes are already at risk of cardiovascular disease, and exposure to passive smoking can further increase this risk and can damage blood vessels.
2. Developing risk of kidney disease: suffering already has the chance to cause kidneys, and being subject to passive smoking can cause a risk of kidney failure. 

Overall, a person suffering from diabetes should be prevented to exposure of passive smoking and avoid places where there is any form of cigarette smoke [19].

Does there is any act or provision which aims for segregation in public places from Smokers and Non-Smoker?

Yes, to prevent the non-smoker from the smoke of cigarettes and implement certain regulations for which Parliament had passed the Cigarette and Other Tobacco Products Act (COTPA),2003.

Section 4[20] of the Act defines prohibition of use of tobacco in a public place.

The section states no individual would use any means of tobacco products in any public place. The place such as international airports would have separate areas or spaces where one must smoke. The area or space should be of such nature from where the smoke wouldn’t enter into the non-smoking areas.

The section also clearly states the construction or place where one can smoke can only be used for smoking and no other forms of activity or acts would be practiced in such a smoking area or place. Here the section is talking about smoking area in the international airport.

What if when an individual violates section 4 of the COTPA, Act 2003?

When any individual violates section 4[21] of the COTPA,2003 which prohibits smoking in public place.

1. Whoever founds to be guilty of section 4 of the COTPA, Act for smoking in public places, the offender would be fined 200 rupees for the first time.
2. For the subsequent offenses, the fine is increased to one thousand rupees.

What is the reason for failure for having a cigarette Smoke-free environment in public places?

1. Lack of Awareness: The major problem with having a cigarette smoke-free environment would be a lack of awareness. The inhaler of cigarette smoke is not aware that how harmful the smoke is dangerous and inhalation of cigarette smoke does not lead cause deathful health problems but the extent would result in the inhaler death.
2. Traditional Acceptance or Social Acceptance; Many times, when a smoker smokes the inhaler is aware that is having the inhalation of the cigarette smoke becoming a passive smoker, and some extent the inhaler is also aware that it may cause a severe form of the disease but there is an acceptance of the smoke inhalation in general terms which encourage more to a smoker for smoking freely in the public places.
3. Economic Factors: Creating a smoke-environment in public or private places may be seen as a financial burden, it would be expensive for a separate area to be constructed so there is segregation between smokers and non-smokers.
4. Resistance from smokers: Refusal of forming a smoke-free environment in public places by smokers. Some smokers have the view that creating smoke-free policies infringe on their rights or freedom and there are subject to exclusion from public places. As of which they do not comply with smoke-free policies. Even these policies are legally mandated.
5. Lack of enforcement: Many times, when a policy is introduced, it is not effectively enforced. It has many reasons such as lack of resources, staff, or training which makes it difficult to implement policy and take action against the violators. 

Does there are any Section in the Indian Penal Code which are forbidden Smoking in Public?

Section 268[22] defines a public nuisance as any act or illegal omission of an Individual which causes any means of common injury, danger, or annoyance publicly or any act which in general cause injury, obstruction, danger, or any means of annoyance for the people who dwell or own property in the vicinity. The section clearly states any form of common nuisance wouldn’t be excused on the ground as it inflects some harm or gain. Public nuisance amounts to the offense under section 268.

How Smoking amounts to a public Nuisance?

The smoke of cigarettes contains a hazardous chemical that commonly causes serious forms of disease to the inhaler of the smoke. The inhaler is unaware of the dangerous producing of smoke from the Cigarette. So, Smokers initially should not smoke publicly. Further, a smoker should be aware that while smoking the smoke of cigarettes should not be inhaled by any public Individual it should be the smoker’s responsibility that the smoking would affect any second or third party as the acts would amount to public nuisance. When an individual smokes publicly it will give a negative impact on public health and lead to social discomfort for the other Individuals.

Does there is any precedent for ensuring for getting a fresh-air or having a smoke-free environment?

In MC Mehta vs Union of India where the case established the principle of absolute liability and the Supreme Court had viewed the right to have a fresh, clean, and healthy environment as falls under Article 21 of the Indian Constitution i.e., the Right to life[23].

In 2003, State of Madhya Pradesh v. Kedia Leather and Liquor Ltd[24] the Supreme Court stated right to have a healthy environment which is has been guaranteed under Article 21 of the Indian Constitution.

In Karnataka Industrial Areas Development Board v. Sri C. Kenchappa[25]the Supreme Court held that the meaning od environment was wide understanding and it falls under the ambit of having a hygienic environment to have hygienic environment is protected under Article 21 of the Indian Constitution.

In Subhash kumar v. State of Bihar[26] Supreme Court had stated right to have a pollution-free environment falls under the right to life. The court had the viewed right to live as a Fundamental right under Article 21.

The right to have a clean environment or to have fresh air or pollution free-environment also aims to have a smoke-free environment in public places. In general, pollution contains all the harmful chemicals, and the smoke of cigarette have all the harmful chemical. So directly or indirectly these case law helps to prohibit smoking in public cases. All these chemicals have a common function which is to cause serious risk of health injurious.

Does there is any case which is particularly prohibiting smoking in public?

The Case of Murli S. Deora v. Union of India[27] is considered a landmark judgment dealing with prohibiting smoking in public. As the supreme court stated non-smokers subjected to smoke by cigarette in public places is a clear violation of the Fundamental which is guaranteed under Article 21 of the Indian Constitution and none should deprive his life without the due process of law.

Suggestion for Having Smoke-free Environment

The Measure from which non-smokers would not be exposed to a passive-smoker

1. Strict Legal Enforcement: when one is found smoking in public places. The person should be fined and no lenient approach should be there as ending the smoker’s acts with a warning.
2. Increasing Fine: currently one founds to be guilty of smoking in a public place and for doing it the first time the fine should be increased from 200 rupees to 1000 rupees and for the subsequent offense, the fine should be increased from 1000 rupees to 5000 rupees only then the smoker would stop from smoking at public.
3. Public campaigns: Public awareness campaigns should be conducted more frequently and campaigns should majorly aim to aware young women and pregnant women. And, aware them how one is inviting life-ending diseases not by actively smoking but by standing next to the smokers
4. No tolerant Approach: The non-smoker should not have tolerant approaches to those who are smoking publicly and have to build the courage of saying strictly no smoke would be allowed in public places.
5. Providing Smoking zones: Smoking is harmful and life-ending it should be stopped by all smokers but it may take till the non-smoker should be protected from the smoke of it and the alternative can also be by having a smoking zone separate from the non-smoking area. The same is already been included in section 4 of the COTPA, 2003 but it is very hard to find a smoking zone in public places. 
6. Smoking bans signs: Smoking bans signs of the smoking are visible in many public places but it is hard to see that it is being followed.

Conclusion

In Conclusion, second-hand smoking or passive smoking is an issue of serious trouble. A slight inhalation of smoke from a cigarette can inflect very serious health problems. The paper shows data on dead and the inflection of harmful diseases of individuals on second-hand smoke. The paper finds Passive smokers can develop diseases such as lung cancer, heart disease, and stroke. In such a situation implementation of complete smoke-free environments in public places can be achieved by imposing Section 4 of the Cigarette and Other Tobacco Products Act, 2003 in the strict sense. The paper suggests strengthening Section 4 COTPA and building a complete Smoke-free zone participation by each member of the Society is mandatory.

The paper suggests there should be a measure of public awareness for having a smoke-free environment and it should be promoted through posters, seminars, government leaflets, pamphlets, distributing anti-smoking posters in public places, and having notices prohibiting smoking at eminent places such as gardens, theatres, restaurants, hotels, railway station, and bus station. It may also result in quitting smoking of smokers. Effective implementation of a smoke-free environment can lead to significant public health benefits by reducing the harmful effects of second-hand smoke. The paper also suggests the imposing of fines on smoking in public places should be increased for the prevention of the general public.

In Addition, the research finds problems facing for effective implementation of a smoke-free environment and finds suggestions for the same.  The paper doesn’t say that there should ban on cigarettes but the paper finds smoking in public can dangerous to the second party by inhalation. The paper also finds how slight inhalation could be dangerous. The research paper highlights the need for sustained efforts from all individuals, including policymakers, and law enforcement officials to overcome legal challenges and promote the prospects of a smoke-free environment in India.

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[20] COTPA, sec. 4

[21] COTPA, sec. 4

[22]Indian Penal Code S. 268

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[24] State of M.P. v. Kedia Leather & Liquor Ltd. & Ors. (C. NO.) 151-158 1998

[25] Karnataka Industrial Areas Development Board v. Sri C, Kenchappa (C NO.) 7405 2000

[26] Subhash Kumar v. State of Bihar and Ors. 1991 AIR 420

[27] Murli S, Deora v. Union of India and Ors. (WP) 316 1999