Supreme Court of India
LAXMIKANTversusUNION OF INDIA AND ORS.
- Citation
- 1997 INSC 411
- Decided
- 11 April 1997
- Disposal
- Dismissed
Holding
The total prohibition of tobacco in Ayurvedic tooth‑pastes and tooth‑powders is a valid and constitutional exercise of the government's power under Section 33(E) of the Drugs and Cosmetics Act, justified in the public interest under Article 19(6).
Summary
The appellant, a manufacturer of Ayurvedic toothpaste containing 4% tobacco, challenged a 1992 government notification that prohibited the manufacture and sale of any Ayurvedic drugs licensed as tooth‑pastes or tooth‑powders containing tobacco. The notification was issued under Section 33(E) of the Drugs and Cosmetics Act, 1940, based on evidence that tobacco use in such products posed a health risk, particularly cancer. The High Court upheld the notification and the appellant appealed to the Supreme Court, arguing that only a ban on products with 50% or more tobacco should be imposed. The Court examined the opinion of the Ayurvedic, Siddha and Unani Drugs Technical Advisory Board, which unanimously recommended a total ban, and noted endorsements from an international conference in collaboration with the WHO. Relying on the public‑interest power under Article 19(6) of the Constitution, the Court held that the total prohibition was a valid exercise of statutory authority and was justified to protect public health. Consequently, the appeal was dismissed and the notification remained in force.
Issues considered
- Whether the total ban on the use of tobacco in Ayurvedic tooth‑pastes and tooth‑powders is a valid exercise of power under Section 33(E) of the Drugs and Cosmetics Act, 1940.
- Whether the ban infringes the constitutional right to carry on trade under Article 19(1) and, if so, whether it can be justified under the public‑interest clause of Article 19(6).
- Whether a partial restriction (e.g., allowing up to 4% tobacco) would be a more appropriate regulatory measure.
Legislation cited
- Constitution of Indias. Article 19(1), s. Article 19(6)
- Drugs and Cosmetics Act, 1940s. 33(E)
Subjects
tobaccoAyurvedic drugstooth‑pastetooth‑powderpublic healthprohibitionDrugs and Cosmetics Actconstitutional lawArticle 19public interestWorld Health Organization
Judgment
LAXMIKANT A
v.
UNION OF INDIA AND ORS.
APRIL 11, 1997
(K. RAMASWAMY AND D.P. WADHWA, JJ.] B
Dmgs and Cosmetics Act, 1940 :
S. 33-DDE-Notification dated 30th Ap1il 1992 prohibiting manufac-
-
ture and sale of all Aywvedic Dntgs licensed as tooth-pastes/tooth-powders
containing tobacco-Validity of-Held : Intemational Conference held in col-
c
laboration with World Health Organisation was of opinion that total ban 011
use of tobacco in tooth paste and tooth-powder should be imposed-Hence
the view taken by the Govemme11t of India imposing total prohibition on the
use of tobacco in the preparation of tooth-powder and tooth-paste is well
justified iii public i11terest-Co11stitutio11 of India, A1t. 19( 1), 19(6). D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3000 of
1997.
From the Judgment and Order dated 23.11.95 of the Madhya
Pradesh High Court in W.P. No. 1456 of 1995. E
R.F. Nariman, Rajiv S. Ray and Rakesh K. Sharma for the Appellant.
P.P. Malhotra, Ms. Anubha Jain, M.P. Shorawala and Mrs. Anil
Katiyar for the Respondents Union of India.
F
K.N. Shukla, Prashant Kumar and S.K. Agnihotri for State of Mad-
hya Pradesh.
The following Order of the Court was delivered :
Leave granted. We have heard counsel on both sides. G
This appeal, by special leave, arises from the judgment passed by the
Madhya Pradesh High Court at Jabalpur Bench, on November 23, 1995.
The appellant is a manufacturer of tooth-paste, using tobacco as one
of the ingredients therein. The Government exercising the power under H
861
862 SUPREME COURT REPORTS (1997) 3 S.C.R.
A Section 33-DDE of the Drugs and Cosmetics Act, 1940 (for short, the
"Act") issued notification as under :
'.'MINISTRY OF HEALTH AND FAMILY WELFARE
(DEPARTMENT OF HEALTH)
B NOTIFIC4 TION
New Delhi, the 30th April, 1992.
GSR-443(E), Whereas, the Central Government is satisfied on
the basis of evidence and other material before it that the use of
c tobacco in tooth-pastes/tooth-powders is likely to involve risk to
human beings and that is necessary and expedient in the public
interest so to do;
Now, therefore, in exercise of powders conferred by Section
33(EED) of the Drugs and cosmetics Act, 1940 (23 of 1949, the
D
Central Government hereby prohibit the manufacture and scale
of all Ayurvedic Drugs licensed as tooth-pastes/tooth-powders
containing tobacco.
(No. X. 11014/3/91-DM-S & PFA)
E H.S. Lamba, Jt. Secy."
Calling that notification in question, the appellant filed a writ petition
in the High Court. The High Court has upheld the notification and dis-
missed the same. Thus this appeal, by special leave.
F When the matter came up before this Court for admission on
30.7.1996, this Court noted as under :
"The petitioner has impugned the notification of the Govt. of India,
Ministry of Health and Family Welfare dated 30.4.92 prohibiting
the use of tobacco in the manufacture and sale of all Ayurvedic
G drugs including tooth-powder and tooth-paste containing tobacco.
The High Court on elaborate consideration upheld the bar
prohibiting the use of tobacco. Shri R.F. Nariman, learned counsel
for the petitioner, contends that what was prohibited was use of
50% ~nd more of tobacco in the preparation of the Ayurvedic
H drugs including tooth-paste and tooth-powder containing tobacco.
LAXMIKANT v. U.0.l. 863
The petitioner is using only 4% tobacco. If there is evidence or A
reports to indicate that even 4% tobacco also would cause hazard-
ous effects including cancerous effects, the petitioner would not
mind to close the manufacturing of tooth-paste and tooth-powder.
Issue notice on this limited question."
On that basis, notice was issued. Counter affidavit has been filed by B
the respondents stating that the view that there should be total ban of use
of tobacco in the preparation of tooth-paste was taken by the Government
in consultation with the Expert Committee constituted in that behalf and
that, therefore, the notification is valid in law. Shri R.F. Narirnan, learned
senior counsel appearing for the appeliant, contended that in view of the C
divergent views expressed by the members of the Board, total ban is not
correct proposition; the permitted use of 4% would not be injurious to the
health of the user of tooth-paste and that, therefore, the view taken is not
factually correct in law. We find no force in the contention.
It is an admitted position that the Expert Body of Ayurvedic, Siddha D
and Unani Drugs Technical Advisory Board was constituted under Section
33-EED of the Act. The Board has gone into the question and opined as
under:
"The Board has in depth discussed the side effects of Nicotine
E
compared to its advantages as a drug in tooth-powder and tooth
paste. Since there are many safe antiseptics available, the Board
unanimously decided that there is no rationality in using tobacco
in the tooth-powder/pastes and approved the action taken by the
Government, in public interest in prohibiting tobacco in Ayurvedic
Drugs." F
It is true that various authorities have expressed their views in this
behalf. But on consideration of various views the Committee ultimately
decided thus :
"Considering the various view points, the Committee decided that G
manufacturers should be told that use of tooth-pastes or powders
containing tobacco is fraught with risk of cancer and dissuaded
from marketing such products. In the case of Orissa, the Chairman
agreed to a communication being sent by the D.G.H.S. to the
Director of Medical Education and Training to discourage the use H
864 SUPREME COURT REPORTS [1997] 3 S.C.R.
A of Gudakhu in Orissa, Copies of this letter would be endorsed to
the Director of Medical and Health Services in other States and
also to the Members of the Committee."
Similar view was also expressed al an International Seminar held on
27th and 28th .T uly, 1991 at All India Institute of Medical Sciences, New
B Delhi and the Conference also made similar recommendations which read
thus:
.,The Conference recognised tobacco as major public health hazard
and also noted that no further research was needed to start tobacco
control activities, as sufficient scientific evidence is already avail-
c able about the ill-effects on health due to use of tobacco besides
its being addictive."
Therefore, the International Conference held in collaboration with
the World Health Organisation was of the opinion that the ban cm use of
D tobacco in tooth-paste and tooth-powder should totally be imposed since
it is prone lo cancer. Under these circumstances, the vi1.:w taken by the
Government of India imposing total prohibition on the use of tobacco in
the preparation of tooth-powder and tooth-paste is well justified in the
public interest covered by Article 19(6) of the Constitution, though it
offends the right to carry on trade guaranteed under Article 19(1) of the
E Constitution. The imposition of total ban is in the public interest.
The appeal is accordingly dismissed. No. costs.
G.N. Appeal dismissed.
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