Justice V. Khalid (Retd.)
Former Judge, Supreme Court of India.
No. 1 58, Secretariat Colony,
2nd Street,
Chennai - 600 010
Tel : 2642 5149, 2642 5514

                                  
                                                  Justice V. Khalid

Your famous judgement on the ill-effects of tobacco consumption received wide publicity as it should. I read through the judgement. It is a masterly treatment of the questions involved wherein your intimate association and knowledge of the medico -legal aspects of the subject received the necessary attention that the subject deserved. The judgement is an eye opener to all those interested in health. It redounds to your credit that the judgement written by you for the division bench received proper judicial approval and at the same time the seal of approval at the hands of the Supreme Court. It is indeed a clarion call to all concerned to bestir themselves to initiate necessary action to rid humanity of the scourge of tobacco smoking.

The judgement provided the catalyst for the government to act and the government swung into action by passing appropriate legislation making the public aware of the dangerous consequences of smoking. That the international community also acclaimed the judgement is evident from the fact that you were invited by the W.H.O. to attend a function under the auspices of the world body at Amman, Jordan whereat you received a rare honour handed over to you. I am sure that you will continue to contribute to the case law in the Indian judiciary especially touching upon the health of the public in the manifold medico- legal aspect. I wish you all success. Give my regards to your wife, daughter and son-in-law.

Lord Templeman

M S VALIATHAN
Ch.M., FRCS, FRCS(C), FRCR D.Sc (h.c)
HONORARY ADVISOR
Phone : 91-8252-571201
Ext. 22342 (0) 91-8252-570491 (R)
Fax: 91-8252-571931, 570062, 570061
E-mail: ms.valiathan@mahe.manipal.edu
          msvaliathan@yahoo.com

                               

                                                       

 

There have been no judicial literature or precedents in this area of what is generally regarded as a macho acquired habit. To be abreast of the times is an insurance against stagnation. If a lighted cigarette between the fingers gives one a debonair look that is a sure fire physical capital, or one between the lips gives one the Marlboro man's rough look, that was all that mattered and Cigarette companies made trillions selling this poisonous dream. Our youths fall for smart advertisements and become hooked to the nicotine drug for life, which became shorter as the poison takes its inevitable toll.

The Kerala Judgment in O.P.No.24160 of 1998 went far afield, especially into the tobacco farms, and produced a Medical finding that accuses tobacco-smoking as the most lethal single contribution of man to his downfall and the proliferation of Cancer institutes in the world. The marshaling of the medical data and statistics published on many an authoritative medical journal fingering tobacco smoke as the prime culprit in myriad diseases that take their toll, can never be reversed even if the Kerala movement goes up on appeal, for the judgment is a dissertation based on science and not a fickle thing like legislation that is half-baked made by political apprentices. In Paragraph 4 of the judgment dealing with smoking generally , the thesis says that one million Indians die every year from tobacco related disease. This is more than the number of deaths due to motor accidents, AIDS, Alchohol and drug abuse put together, say the Indian Medical Association (IMA) and the Indian Academy of Pediatrics (IAP) quoting studies." Paragraph 6:- " Cigarette smoking is a major independent risk factor for coronary artery disease-Retrospective and prospective epidemiologic studies have demonstrated a strong relationship between smoking and coronary morbidity and mortality in both men and Women. The coronary disease death rate in smokers is 70 % higher than in non-smokers and, the risk increases with the amount of cigarette exposure. The risk of sudden death is two to four times higher in smokers. Smoking is also a risk factor for cardiac arrest and severe malignant Arrythmias......."

Paragraph 7:- "..... In addition, smoking may trigger acute ischemia. Carbon monoxide decreases myocardial oxygen supply, while nicotine increases myocardial demand by releasing catecholamines that raise blood pressure, heart rate and contractibility.... "

On Passive smoking by non-smokers in an environment of smoke Exposure created by the smokers, the dissertation is incisive. In paragraph 13 , the finding on passive smoking is :- " ..An important discovery is that the cocktail of chemicals in a smoky room may be more lethal than the smoke inhaled by the smoker. The "Side-stream" smoke contains three times as much benezo (a) pyrene, (a virulent cause of cancer) six times as much toluene, another carcinogen, and more than 50 times as much demethylnitrosainine. It has been commented by Dale sandier of the National Institute of Environmental, Health studies, in the united states, that the potential for damage from passive smoking may be greater than has previously been recognised."

Paragraph 14:- " Thus it can be safely concluded that the dangers of passive smoking are real, broader than once believed and parallel those of direct smoke.... Now new epidemiological studies and reviews are strengthening the evidence that it also harms the health of other people nearby who inhale the toxic fumes generated by the smoker, particularly from the burning end of the cigarette. Such indirect, secondhand smoking causes death not only by lung cancer but even more by heart attack, the studies show." .... " The new findings on passive smoking parallel recent changes in U.S.Laws and rules that limit smoking in public places .In recent years, all "but four States (Missouri, North Carolina, Tennessee and Wyoming) have passed comprehensive laws limiting smoking in public places. "

India a signatory to about 16 resolutions adopted by the World Health Organisation since 1970, charged with formulations of strategies to ensure effective protection to non-smokers from involuntary exposure to tobacco smoke. The judgment comments in paragraph 19 on the omission by the Government of India in this regard :-" Despite the fact that India is a signatory to these resolutions it is saddening to note that no significant follow-up action has been taken except banning smoking in public places and public transport and printing a statutory warning on cigarette packets. Even here, the action has been half-hearted with the ban on smoking in public paces being confined to to "Delhi and a few other cities and the statutory warning being followed more as a ritual and printed in such small letters that the consumer hardly notices it....."

Paragraph 21:- " Tobacco kills 50 % of its regular users within 40 years.... the hands of workers get affected by chemicals in tobacco and sickness is caused when nicotine gets absorbed into the body through the skin. All these findings are available with the state but if it has not taken any effective action, it can only be attributed to the clout which these letal leaf enjoys in the corridors of power. ..." The tobacco Lobby comes in for stick. Having laid the "basis for action by the court in the absence of any move on the part of the executive, the court rose to its full stature when it observed thus in paragraph 22 :- " But then , it had to be borne in mind that this court acting as the sentinel on the qui vive can certainly interfere and grant relief by Mandamus .... to enforce the existing laws which is quite sufficient to safeguard the the interests of the public against the wisp of environmental tobacco smoke(ETS)". Against the conclusive backdrop of the findings that passive smoking kills, the existing law namely Section 268 I.P.C was found to contain the ingredient of nuisance and the punitive section 278 specifically dealt with making atmosphere noxious to health. Though a sentence of Rs 500 as fine made the case a petty one, the Bench found a way to give some teeth to the offence by making invocation of section 133 Cr.P.C.by the District magistrate and his publication of an order a must, in order that violation of the promulgation becomes a cognisable offence under Section 188 I.P.C . It is only a thrice distilled fool, who would, after the promulgation of the order by the District magistrate in an area, render himself to be arrested without a warrant and be fined Rs.500 for smoking and probably be sent to prison for defying the order under sec. 133 Cr.P.C. The existence of these provisions nay not have, been known to even the practitioners of criminal law, but just as "the Bench probed the Medical and epidemiological world to lay bare the anatomy of smoky death, this sally into the criminal law so that the smoker and the police (more often than not/ chain smokers) in public do not get off with an exchange of a ten-rupee note, was a safety valve to stanch petty corruption. The resultant command through Mandamus, it is hoped, has rendered the Kerala outdoors free of nicotine and 4000 other toxins that a puff exudes, for innocent noses to inhale. The smoke-screen that blinded the power-house has been removed by A. R. Lakshmanan, J. and Kurup J., who have left a legacy to the. non-smoking world with the epitaph " Your right to kill yourself through smoke ends, where my nose begins."

Environmental pollution is everybody's funeral and the march of law cannot be impeded by a technical defensive argument by the court that it has no power to compel the State to legislate. It jolly well can and should, if the killing lobby is in command of the law-factory having sent up criminals and law breakers to make laws. The greenhouse effect is caused by the piercing of the ozone layer in the atmosphere, through holes created in the layer by the discharge of gases like carbon dioxide, chlorofluorocarbons, methane and even water-vapour, and fossil fuels, with the Sun's rays playing truant. The air conditioning and refrigeration machines have by emission of Chlorofluorocarbons, while making life more pleasant, added to the depletion of the ozone layer, that now threatens to heat up the earth causing the Arctic ice to melt and bring the prophesied flood to end the world, faster, Should the judiciary sit tight on protocol and say." we can't legislate, when fools fear to tread on the legislative corns"!. Smoking assertively or involuntarily, is the worst of man's acquired scourges which is laid bare by Kurup's thesis. Would not any government with a little intelligence give top priority to a legislation that puts tobacco into the basket with the Narcotics and Psychotropic substances, possession of which is rewarded with a ten year sojourn in prison. Its permissiveness is not its redeemer, for, now that the blindfold is removed, its potential as the greatest killer, is realised by all, except the suicidally inclined who may not be averse to a little fun homicidally involving the non-smoker.

The Kurup-fallout, it is hoped, would be felt in Tamil Nadu when, through litigation or legislation, there would be only the primal fire and its smoke but not the smoke emitted by a smoking- fool. A smoking medical practitioner, a smoking judge, be he ever so high, should, under the Smokeless Law, be dismissed from service, apart from being convicted of attempted homicide. This is for Tamil Nadu, but the rest of lawless; India would follow this ice breaker, legislation. 

Epilogue : After this Judicial fumigation of the air to let a wisp of oxygen fill hungry lungs in public places in Kerala, Justice Kurup has become an icon; sought by many countries to preside over seminars and meetings as Mr.Clean. More than nuclear disarmament, destruction of landmines, AIDS control, if tobacco could be extirpated , the world would be a real paradise, not the hell it is now . When medical doctors smoke while talking to patients, the hypocrisy boils over. In a Malayalam movie, a heart-specialist with a smoky cigarette between his lips, advises the patient, not to smoke. The patient replies, " Doctor, at least while saying that, why don't you remove that cigarette .? " AMEN.

M.A. SADANAND
Advocate
CHENNAI   

                                              UNCLE TOM'S CABIN

U.S. President Abraham Lincoln, on meeting Harriet Beecher Stowe at the end of the American civil war, in which the bone of contention was the emancipation of the African slaves objected to by the Southern states of USA, remarked, "So you are the little lady who with your book 'Uncle Tom's Cabin', started the civil war! "She wrote it, crying all the time, at the barbarity of man against man. C.T.C has been able to secure a copy of the judgement of the Kerala High Court rendered by a Division Bench in Jumbo Circus Vs. Union of India, reported in 2000(2) KLT 625, and voiced by Hon'ble Justice K. Narayana Kurup for himself and his brother judge, Justice K. V. Sankaranarayanan.

What 'Uncle Tom's cabin' did for MAN from his de-humanised state, this judgement has done for the animal world, suffering, at the hands of exploitative savage man. Circus, through starvation, beating and other forms of cruelty, makes wild beasts like our famed ancestor monkey, bear, tiger, panther and lion, perform tricks so alien to their natural character, to thrill and entertain people who want their money's worth, the same way the blood-thirsty spectators, perhaps had enjoyed the gore at the Collessium in Rome, where the gladiators perished. The circus satraps were at war with the centre for thinking less of their business and more of the welfare of the animals and one of such challenges of the impugned Notification of the Government of India dated 14.10.1998 surfaced before the Division Bench of Kerala, which, while dismissing the plea for continued torture of the 5 named animals, cut a swath for humanised thinking in respect of the all living beings and things, and upheld the prohibition against use of the 5 wild animals as performing artists in circuses. This judgement is another first from that High Court, following the banning of smoking in public places a blow in favour of clean oxygen, unpolluted by 4000 toxins that a puff of nicotine- filled smoke contains. That judgement also by Justice K. Narayana Kurup is a landmark in judicial intercession on behalf of the voiceless millions and it has overshot international and geographic boundaries. That judgement merely reiterates the famous illustration of a "fire at one end and a fool at the other", but bars a chap's right to pollute another's dear oxygen. .

The soul of the instant judgement is quote worthy "We in our country, see the same soul being represented in all living beings on this planet. It is because of this ideology that a provision has been made in the Constitution of India to have love and compassion for all living beings" This mandated compassion is one of the fundamental duties of every citizen of India, itemised in Article 51-A(g). One of the very few good things done by the 42nd Amendment of 1976 is apart from Article 51-A, Article 48-A, which reads thus:- "The state shall endeavour to protect and improve the environment and to safeguard the forests and the WILD LIFE of the country". Though parliament in the Emergency days had Bullet-train traction on fast track with no opposition impediment as they were all caged, even the emancipator Government retained these two articles, because of what Justice Kurup called, the pervasive soul manifest in all things and beings living. That soul force as the basis of the inquiry, the court rubbished the petitioner's argument that they have a fundamental right to do their entertaining business under the protective blanket of Article 19 (1) (g) and that the distinction between animals in zoo and in circus is violative of Article 14 of the Constitution. The Bench perhaps suo moto did tremendous research in Animal Welfare Legislation and theses of learned Animal bodies like 'Royal Society for Prevention of Cruelty to Animals' (RSPC) and several Reports, Books, were heavily drawn upon, to repel the contention of the petitioner that they have a right to enslave the wild beasts and exploit them for commercial purposes through torture, and hunger-induced performance of tricks, the same way zoo keepers with Governmental blessings are doing. The bench said : "zoos play an important role ex situ preservation of species particularly conservation of rare and endangered species. Contrasting differences in the case of zoos and circuses are that the latter have capture, transportation, training, rehearsal and performance, whereas the former have capture seizure and translation... Also in case of circuses, the animals are constantly transported from one place to another in varying climate and other factors which have an adverse effect on the animals, on display, mostly in unnatural environment".

The bench also noted that "breeding in circuses is only accidental or incidental and in no way helps a national conservation programme. It needs to be pointed out that inbred stocks lose their heterogeneity and vigour". The Bench also referred to the expert committees finding that "Monkeys are social animals and there is no justification for keeping the isolated monkey in captivity. After referring to the savagery entailed in training the animals to perform in circuses, with electric whips, beating and starvation, to break the animal mentally and physically, the Bench opines thus "Circus using animals is a very perverse form of entertainment. The circus animal obeys the commands of the Ring Master only out of fear. Its performance is not as a voluntary or a natural act of a free animal ... the animals are conditioned that only when they obey their master, they will be given food and that too in circuses not sufficient amount of food is given, as otherwise, it is felt that the animal may become either lazy or put on weight, which would hamper the feats they are expected to perform thereby the animals are made into docile robots".

Paragraph 14 of the Judgement shows homosapiens in poor light compared to our animal friends. Since this is a landmark Judgement that is a sort of 'Animals' Uncle Tom's Cabin, the entire paragraph is quote-worthy for the edification of those who may not be subscribers of KLTs-

"14. In conclusion we hold that circus animals:'" are forced to perform unnatural tricks, are housed in cramped cages, subjected to fear, hunger, pain, not to mention the undignified way of life they have to live, with no respite and the impugned notification has been issued in conformity with the changing scenario, values of human life, philosophy of the Constitution, prevailing conditions and the surrounding circumstance to prevent the infliction of unnecessary pain or suffering on animals. Though not Homosapiens, they are also beings entitled to dignified existence and humane treatment sans cruelty and torture. In MANY RESPECTS THEY COMPORT BETTER THAN HUMANS, THEY KILL TO EAT AND EAT TO LIVE AND NOT LIVE TO EAT AS SOME OF US DO. They do not practice deception, fraud or falsehood and malpractices as humans do, they care for their little ones expecting nothing in return, they do not proliferate as we do depleting the already scarce resources of the earth for they practice sex restraint by seasonal mating, nor do they INHALE THE LETHAL SMOKE OF TOBACCO, POLLUTING THE ATMOSPHERE AND INFLICTING HARM ON FELLOW BEINGS ... Therefore it is not only our fundamental duty to show compassion to our animal friends, but to recognise and protect their rights. In this context we may ask why not our educational institutions offer a course on "animal rights" with an emphasis on fundamental rights, as has been done by the Harward Law School recently. If humans are entitled to fundamental rights, why not animals? In our considered opinion, legal rights shall not be the exclusive preserve of the humans which has to be extended beyond people thereby dismantling the thick legal wall with humans all on one side and all non-human animals on the other side. While the law currently protects wild life and endangered species from extinction, animals are denied rights an anachronism which must necessarily change".

In these days of judicial obfuscation where, it is good to hunt with the hounds and race with the hares, so that both parties feel they have won not only a battle but the war, the Kurup-judgement that gave tongue to the silent millions in the jungles of India, stands out like a beacon light.- Man the marauder has compelled Gibbon in his "Decline and fall of the Roman Empire", to epigrammatize man's fall thus: "Corruption is the infallible symptom of Liberty", We were liberated and then we became corrupt and commercial. What hope is there for mere animals, except through the Kurup-doctrine quoted in paragraph 14 of the judgement "Minister Maneka Gandhi is one who will not fault the judiciary this time, thanks to 'Uncle Tom's Cabin rewritten by the Narayanan duo of Kerala one of whom, who remedied the feral grievances is happily in our midst.

Epilogue :-The Kurup-Judgment has been upheld by the Supreme Court recently." Uncle Tom" has won at last.

M.A. SADANAND
Advocate
CHENNAI

PATRON OF THE NON-SMOKER	Recognition by the United Nations
	A JURIST AND CRUSADER
INTERNATIONAL SOCIETY OF ENVIRONMENTAL BOTANISTS	INDIAN JUDICIAL ACTIVISM
V R Krishna Iyer	Of humane verdicts