Smokers’ interest in self-determination is at odds with the state’s obligation to protect the life of every individual and provide them with a healthy life. Two important issues are raised: first; do we have the right to smoke as part of the right to life and second; to what extent States have an obligation to protect the life of each individual and to ensure a healthy life and access to health care. The Indian government has ordered the country’s 1.3 billion people to stay at home for three weeks to prevent the spread of the corona virus. Police action was taken to punish those who tried to put their own lives at risk by violating confinement orders. This demonstrated the authority of the state to prevent any individual from harming themselves and others. So how does the state let an individual smoke and put his life in danger? Corona pandemic has killed 3.29 lakh only so far from first and second waves, global tobacco epidemic kills 8 million people a year. About one person dies every six seconds from tobacco. According to the World Health Organization [‘WHO’], tragically more than 80% of these deaths occur in developing countries. India is the second largest country in the world in terms of tobacco consumption and hence faces a large burden of tobacco-related mortality and disease.
Right to life vis à vis Right to smoke and die
The “right to die” issue was first brought before a two-judge bench of the Supreme Court of India (SCI) in a case of P. Rathinam v. union of india (1994). The Supreme Court recognized the decision of the Bombay High Court in The case of Maruti Shripati and ruled unconstitutional Article 309 of the ICC which punishes attempted suicide on the grounds that it violates Article 21 of the Constitution. The court narrowed the scope of life under section 21 to include ‘right to die‘ in its scope in the name of harmonization with the global wavelength. The analogy was drawn from the interpretation that freedom of speech and expression “includes freedom not to speak, freedom of association and movement” includes freedom not to join an association, freedom to move anywhere includes the freedom not to move and “freedom to do business” includes the freedom not to do business. So, rationally, it must follow that the right to live should also include the right not to live, that is, the right to die or end one’s life.
The speech did not stop there and the case returned to the Supreme Court of Gian Kaur vs. state of punjab (1996). The constitutional formation of the SC retained the analogy drawn from a superficial comparison between the fundamental freedoms in Maruti Shripati and P. Rathinam as imperfect. The bench observed:
The “right to life” is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and incompatible with the concept of the right to life. With respect and humility, we find no similarity in the nature of other rights, such as the right to freedom of expression’, etc., to provide a comparable basis for asserting that the ‘right to life’ includes also the ‘right to die’. With respect, the comparison is inappropriate, for the reason given in the context of article 21. To give meaning and content to the word “life” in article 21, it has been interpreted as life in human dignity . Any aspect of life that makes it worthy can be read into it, but not that which extinguishes it and is, therefore, incompatible with the continued existence of life, resulting in the obliteration of the right itself. The right to die, if it exists, is intrinsically incompatible with the right to life, just like death and life.
In Aruna Shanbaug case the SC changed the narrative slightly and argued that a person has the right to die with dignity and allowed passive euthanasia with certain guidelines. In Common Cause (A Regd. Society) v. Union of India (2018), the SC reiterated that the fundamental right to a “meaningful existence” includes a person’s choice to die without pain or suffering, but it would be completely illogical to compare it to the right to smoke and die.
Renunciation of the right to life not authorized
If an Indian citizen can renounce his fundamental right? Can a violation of the obligation of fundamental rights imposed on the State by the Constitution be lifted by any citizen? The SC in Bashesar Nath vs. CIT (1959) rejected the proposition that some basic rights are enacted solely for the private benefit of a citizen (e.g., the right to property) which the individual can waive and some basic rights are enacted for the public good or as a matter of public policy and it cannot be waived. She found that Part III of the Constitution did not justify such a distinction. Fundamental rights are enacted with all precision, and wherever the framers of the constitution intended limitations to these rights, they did so in express terms. There will be no justification for adding more limitation than is expressly stated. The court refused to borrow the American “waiver of the doctrine of fundamental rights” on the grounds that the US Constitution is fundamentally different from the Indian Constitution. While the US Constitution was merely enacted in order to form a more perfect union and was only an outline of governance and nothing more, the Constitution of India was drafted primarily to secure justice, liberty and equality to all its citizens and make it a welfare state.
Does a person have the right to shorten their own life in order to make it better and to shorten it, i.e. if this is a means or a necessary consequence to make it a better life overall ? This implies that a person has the right to live and die in particular, by his own convictions as to the life that would be best for him. But, there is a sense of something in each of us that is greater than any of us, something that makes human life more than just an exchange of costs for benefits, more than a simple job or a trip to the mall. A sense of value within us that claims us – a value that we must respect. Life also confers advantages and disadvantages on people other than the person who lives it. Does a person have the right to deprive his children of a parent, simply because life is not worth enough for him. Emanuel Kant is right to say that exchanging one’s person for benefit or relief from harm depreciates the value of the person, respect for which is the criterion of morality.
Therefore, smoking is evil. At this point, we must not err in comparing this to passive euthanasia which our SC approved due to patient pain which is an unstoppable process of deterioration which can interrupt or risk interrupting, without disrespect to the dignity of the person. Euthanasia is authorized in extreme cases taking into account the dignity of the patient and not on the grounds that it is a right or an autonomy. The dignity of the person must be central in deciding whether a person should be allowed to end their life. The question of autonomy will not even arise because smoking begins in adolescence and when you reach adulthood it becomes an addition.
We cannot force smoke out of people’s mouths on the grounds that it is immorally self-destructive. The inadmissibility of someone else’s conduct does not necessarily give permission to interfere with it. By the same logic, encouraging someone to engage in inadmissible conduct is in itself inadmissible. This is why we believe the tobacco industry is engaged in an immoral enterprise. It is not illegal because the state has allowed industry to engage in this trade and business.
But it is certainly unconstitutional and immoral on the part of the state which, despite knowing all the fact sheets about the dangerous effects of smoking on people’s lives and the health care system, not only allows industries tobacco to manufacture these products, but also allows people to consume it.
The government of India has been aware of the burden of tobacco and has taken steps to regulate the tobacco industry and reduce tobacco consumption. The Cigarettes and Other Tobacco Products (Prohibition of Advertising and Regulation of Trade and Commerce, Production, Supply and Distribution) Act 2003 (COTPA) was a breakthrough in this direction, but the tobacco industries quickly found ways to overcome legal embargoes and as a result, COTPA demands drastic measures. amendments. The Amendment Bill which prohibits the sale of any unlicensed tobacco product, the sale of tobacco products to persons under 21 and puts control over in-store advertising and promotion is pending before Parliament and if passed, it will give enforcement agencies more power to control tobacco industry tactics. But, the question remains, why does the state allow tobacco industries to operate and grow knowing that it kills?
The author is a Professor of Law and Registrar at Odisha National Law University.
Views are personal.