- Bookmark
- Share
- CaseIQ
Laxmikant v. Union Of India And Others
Factual and Procedural Background
The appellant manufactures toothpaste that contains tobacco. Acting under Section 33-EED of the Drugs and Cosmetics Act, 1940, the Central Government issued a notification dated 30 April 1992 prohibiting the manufacture and sale of all Ayurvedic toothpastes and tooth-powders containing tobacco. The appellant challenged the notification before the Madhya Pradesh High Court, which upheld the ban on 23 November 1995. The present appeal was filed in the Supreme Court by special leave.
At the admission stage on 30 July 1996, the Supreme Court limited notice to the question whether the use of as little as 4 percent tobacco (as employed by the appellant) posed a health hazard justifying a total ban. The Union Government filed a counter-affidavit relying on the opinion of an Expert Committee and other materials supporting a complete prohibition.
Legal Issues Presented
- Whether the Central Government’s notification totally banning the use of tobacco in Ayurvedic toothpastes and tooth-powders is valid under Section 33-EED of the Drugs and Cosmetics Act, 1940.
- Whether a total ban—even where the product contains only 4 percent tobacco—unreasonably restricts the appellant’s fundamental right to carry on trade under Article 19(1)(g) of the Constitution or is saved as a reasonable restriction in the interests of public health under Article 19(6).
Arguments of the Parties
Appellant’s Arguments
- The prohibition was originally intended only for products containing 50 percent or more tobacco; the appellant’s toothpaste contains merely 4 percent.
- No conclusive evidence shows that such a minimal percentage poses health hazards, and therefore a total ban is factually and legally unwarranted.
- Divergent views within advisory bodies indicate that an absolute prohibition lacks adequate scientific consensus.
Respondents’ Arguments
- The Expert Body of the Ayurvedic, Siddha and Unani Drugs Technical Advisory Board, constituted under Section 33-D, unanimously found no rational basis for using tobacco in toothpaste or tooth-powder.
- Additional expert committees and an international conference (in collaboration with the World Health Organisation) recognised tobacco as a major public-health hazard, justifying a complete ban.
- Accordingly, the notification is a valid exercise of statutory power and is reasonable under Article 19(6).
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court noted that the Expert Advisory Board, a statutory body under Section 33-D, had “unanimously” concluded that there was no rational justification for including tobacco in dental products given the availability of safer antiseptics. It further observed that:
- Various committees, after evaluating divergent opinions, warned manufacturers of the cancer risk associated with tobacco-based dental products and recommended discouraging their sale.
- An international seminar held at the All India Institute of Medical Sciences in collaboration with the WHO recognised tobacco as a major public-health hazard and advocated immediate control measures.
- Against this body of expert opinion, the appellant’s assertion that 4 percent tobacco is harmless lacked evidentiary support.
On these facts, the Court held that the Government’s action falls squarely within the power conferred by Section 33-EED and serves the “public interest” contemplated by Article 19(6). The restriction, although it interferes with the right to trade under Article 19(1)(g), is reasonable because it protects public health.
Holding and Implications
Appeal Dismissed – Notification Upheld.
The Supreme Court affirmed the total prohibition on manufacturing and selling Ayurvedic toothpastes and tooth-powders containing any quantity of tobacco. The decision immediately binds the appellant and similarly situated manufacturers. The judgment rests on statutory authority and constitutional principles of public health and does not announce a new legal precedent beyond confirming the validity of the existing notification.
Order
1. Leave granted. We have heard the counsel on both the sides.
2. This appeal, by special leave, arises from the judgment passed by the Madhya Pradesh High Court, Jabalpur Bench, on 23-11-1995.
3. The appellant is a manufacturer of toothpaste, using tobacco as one of the ingredients therein. The Government exercising the power under Section 33-EED of the Drugs and Cosmetics Act, 1940 (for short “the Act”) issued notification as under:
“Ministry of Health and Family Welfare (Department of Health)
Notification
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 tobacco in toothpastes/toothpowders 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 powers conferred by Section 33-EED of the Drugs and Cosmetics Act, 1940 (23 of 1949), the Central Government hereby prohibits the manufacture and sale of all Ayurvedic drugs licensed as toothpastes/toothpowders containing tobacco.
(No. X. 11014/3/91-DM-S & PFA)
H.S Lamba, Jt. Secy.”
4. Calling that notification in question, the appellant filed a writ petition in the High Court. The High Court has upheld the notification and dismissed the same. Thus this appeal, by special leave.
5. 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 Government of India, Ministry of Health and Family Welfare dated 30-4-1992 prohibiting the use of tobacco in the manufacture and sale of all Ayurvedic drugs including toothpowder and toothpaste 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% and more of tobacco in the preparation of the Ayurvedic drugs including toothpaste and toothpowder containing tobacco. The petitioner is using only 4% tobacco. If there is evidence or reports to indicate that even 4% tobacco also would cause hazardous effects including cancerous effects, the petitioner would not mind to close the manufacturing of toothpaste and toothpowder. Issue notice on this limited question.”
6. On that basis, notice was issued. Counter-affidavit has been filed by the respondents stating that the view that there should be total ban of use of tobacco in the preparation of toothpaste 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 Nariman, learned Senior Counsel appearing for the appellant, contended that in view of the divergent views expressed by the members of the Board, total ban is not a correct proposition; the permitted use of 4% would not be injurious to the health of the user of toothpaste and that, therefore, the view taken is not factually correct in law. We find no force in the contention.
7. It is an admitted position that the Expert Body of Ayurvedic, Siddha and Unani Drugs Technical Advisory Board was constituted under Section 33-D of the Act. The Board has gone into the question and opined as under:
“The Board has discussed in depth the side effects of nicotine compared to its advantages as a drug in toothpowder and toothpaste. Since there are many safe antiseptics available, the Board unanimously decided that there is no rationality in using tobacco in the toothpowder/pastes and approved the action taken by the Government, in public interest in prohibiting tobacco in Ayurvedic drugs.”
8. 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 viewpoints, the Committee decided that manufacturers should be told that use of toothpastes or powders containing tobacco is fraught with the 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 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.”
9. Similar view was also expressed at an International Seminar held on 27-7-1991 and 28-7-1991 at All India Institute of Medical Sciences, New 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 available about the ill-effects on health due to use of tobacco besides its being addictive.”
10. Therefore, the International Conference held in collaboration with the World Health Organisation was of the opinion that the ban on use of tobacco in toothpaste and toothpowder should totally be imposed since it is prone to cancer. Under these circumstances, the view taken by the Government of India imposing total prohibition on the use of tobacco in the preparation of toothpowder and toothpaste 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 Constitution. The imposition of total ban is in the public interest.
11. The appeal is accordingly dismissed. No costs.
Alert