Prof. Nurul Islam, et al. v. Government of the People’s Republic of Bangladesh, et al.

52 DLR (2000) 413
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The above judgment combined two writ petitions that both dealt with the effect of tobacco advertisements on public health.

The Petitioner in Writ Petition No. 1825 of 1999 was Prof. Nurul Islam, President of ADHUNIK (Aamra Dhumpan Nibaron Kori). Section 3 of the Tamakjato Shamogri Biponon Niontroner Jonno Pronito Ain, 1988 provided that all tobacco products and advertisements should have a statutory warning on the injurious effects of tobacco, in easily readable Bengali. The Petitioner contended that tobacco companies were flouting this law by printing the warning in a barely readable font on an inconspicuous part of the product. Further, in television and cinema hall advertisements, tobacco warnings were not broadcast long enough for the message to be appreciated. The Petitioner sought stricter implementation of the existing law through more prominent advertising both in broadcast and print media, so that even the illiterate would be aware of the dangers of tobacco usage.

In Writ Petition No. 4521 of 1999, the Petitioner was the Bangladesh Anti Drug Federation. They protested against a promotional campaign of the British American Tobacco Company called “Voyage of Discovery.” This campaign involved a highly publicized 5 day yacht cruise starting from Chittagong that promoted “Gold Leaf” cigarettes by selling tickets to the public for a place on the “Gold Leaf Yacht,” offered free gifts, and was accompanied by a print and broadcast advertising campaign. The Petitioner contended that the mandatory health warning was not displayed on any of the promotional materials onboard the ship.

In both writ petitions, the Petitioners contended that the State was violating the fundamental right to life by not protecting the health of its people.

British American Tobacco, the Respondents in the second petition, contended that the “Voyage of Discovery” did not intend to attract new consumers to tobacco products. They also contended that there was no law restraining them from carrying on such an advertisement. The Government, a Respondent in both petitions, stated that Ordinance No 16 of 1990, which sought to prohibit tobacco related advertisements, had lapsed after not being placed before Parliament. Thus, the Government was not authorized by law to prevent manufacturers and advertisers from carrying on their business.

The Court held that the Government should have banned advertisements of tobacco products. It held that tobacco consumption was detrimental to the life of an individual, and that the State has a duty to provide all its citizens with the right to life which includes the right to sound mind and health. Moreover, the fundamental right to human dignity and worth was to be guaranteed and respected by the State. The Court thus expressed dismay over the Government’s inaction allowing Ordinance No. 16 of 1990 to lapse.

In reaching its conclusions, the Court relied on a report of the World Health Organization presented at the World Health Assembly. This report documented a rise in tobacco consumption due to aggressive marketing and promotional tactics by tobacco companies, which had led to a worldwide increase in deaths and ailments related to tobacco usage.

The Court also considered that the absence of a law banning advertisements by tobacco companies did not leave the Court helpless. It held that the State had a duty to protect a human being from ill health, and that, in view of the ill effects of tobacco usage, advertisements of cigarette and cigarette related products were violative of the right to life. The Court held that it therefore had the jurisdiction to issue directions banning tobacco advertisements.

The Court thus issued the following directions to the Government,

(a) Phase by phase cessation of tobacco leaves production and rehabilitation of workers engaged in such activities

(b) Restrict issuance of licenses to tobacco and bidi industries

(c) Prohibit import of tobacco related products and meanwhile print the statutory warning in bold language in Bengali

(d) On expiry of existing contracts for advertisements, no further advertisements in the print, electronic or other media were to take place

(e) Promotional activities like ‘Voyage of Discovery were to be strictly prohibited by the Government

(f) Banning smoking in public places and penalizing offenders as per the Penal Code

“Moreover, a healthy human is the centre of all healthy activities and it is the obligation of the Republic to ensure creation of congenial environment to good health provided in Articles 10 and 11. Maintenance/improvement of public health and to maintain the dignity of life is the anxious obligation of the State machinery.” [52 DLR (2000) Para 22].

“But whatever may be the existing purport of Act 45 of 1988, Article 102(1) of the Constitution provides remedy thereunder if any of the fundamental rights is contravened. Thus, the provisions as to fundamental rights in our Constitution are self executory and any violation of the provisions of Article 31 is subject to judicial review in writ jurisdiction and this Court could remedy the wrong by issuing appropriate declarations and directions for enforcement of any of the fundamental rights conferred by Part III of the Constitution” [52 DLR (2000) Para 31].