2nd Edition Best Memorial Petitioner

TEAM CODE:
2ND NLUO-PHFI PUBLIC HEALTH LAW

NATIONAL MOOT COURT COMPETITION
Before
THE HON’BLE SUPREME COURT OF DIANA
IN THE MATTERS OF:
Mr. Prominent.............(Petitioner)
versus
Union of Diana & Ors..............(Respondents)
~
Jan Swaasth Seva.............(Petitioner)
versus
Union of Diana.............(Respondent)
~
Federation of Tobacco Companies.............(Petitioner)
versus
Union of Diana.............(Respondent)
~MEMORIAL ON BEHALF OF PETITIONERS~

TABLE OF CONTENTS PAGE | I
TABLE OF CONTENTS
TABLE OF CONTENTS------------------------------------------------------------------------------------------------------------ I
INDEX OF AUTHORITIES----------------------------------------------------------------------------------------------------- III
STATEMENT OF JURISDICTION---------------------------------------------------------------------------------------- VIII
STATEMENT OF FACTS------------------------------------------------------------------------------------------------------- IX
ISSUES RAISED-------------------------------------------------------------------------------------------------------------------- XI
SUMMARY OF ARGUMENTS----------------------------------------------------------------------------------------------- XII
ARGUMENTS ADVANCED------------------------------------------------------------------------------------------------------ 1
I. THE REGULATION OF CIGARETTES AND BAN ON E-CIGARETTES, TO PROTECT THE

RIGHT TO PUBLIC HEALTH CAN OVERRIDE THE RIGHT TO TRADE AND COMMERCE OF THE
FEDERATION COMPANIES-------------------------------------------------------------------------------------------------- 1
A. Reasonable restriction can extend to Regulation and Prohibition----------------------1
B. Tobacco is Res Extra Commercium 3
C. Right to Public Health prevails over the Right to trade and Commerce---------------4
II. THE CLASSIFICATION BETWEEN CIGARETTES AND E-CIGARETTES, FOR THE PURPOSE
OF THE BAN, IS ARBITRARY AND IRRATIONAL------------------------------------------------------------------- 6
A. Not banning cigarettes infringes Article 21 and Article 47------------------------------6
B. Cigarettes are more harmful and addictive than E-Cigarettes--------------------------7
III. MR. PROMINENT IS ENTITLED TO COMPENSATION BY STATE FOR PERMITTING THE

SALE OF CIGARETTES AND OTHER TOBACCO PRODUCTS AND BY TOBACCO COMPANIES ON
ACCOUNT OF HARM CAUSED DUE TO THE USE OF THEIR PRODUCTS----------------------------------- 8
A. Private bodies can be made parties to a writ petition-------------------------------------9
B. Mr. Prominent is entitled for compensation----------------------------------------------10
IV. THE SPECIAL EXCLUSION IN THE INSURANCE CONTRACT RELATING TO TOBACCO USE
IS UNCONSTITUTIONAL---------------------------------------------------------------------------------------------------- 16
2ND NLUO-PHFI MOOT COURT COMPETITION, 2022 ~MEMORIAL for PETITIONERS~

TABLE OF CONTENTS PAGE | II
A. Exclusion clause in the insurance contract relating to tobacco use does not stand
the Test of Reasonableness under Article 14 of the Constitution----------------------------16
B. It is settled law that relative bargaining power of contracting parties must be

considered in determining the legal validity of a contract-----------------------------------21
C. Exclusion clause violates the Right to Healthcare and Medical-care under Article
21 of the Constitution 23
PRAYER--------------------------------------------------------------------------------------------------------------------------- XIV

INDEX OF AUTHORITIES PAGE | III
INDEX OF AUTHORITIES
CASES
 Ankur Gutkha v India Asthma Care Society, Special Leave Petition No. 16308 of 2007. - 4
 Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34---------------------------------------17
 B. P. Sharma v Union of India, (2003) 7 SCC 309----------------------------------------------3
 Bachan Singh v State of Punjab, (1980) 2 SCC 684-------------------------------------------20
 Bandhua Mukti Morcha v Union of India & Ors, 1984 AIR 802----------------------5, 6, 12
 C.E.S.C. Limited v Subhash Chandra Bose, (1992) 1 SCC 441------------------------------23
 Central Inland Water Transport Corporation Ltd. and another v Brojo Nath Ganguly &
Anr., AIR 1986 SC 1571 22
 Charan Lal Sahu v Union of India, (1990) 1 SCC 613----------------------------------------18
 Chintaman Rao v State of Madhya Pradesh, AIR 1951 SC 118-------------------------------2
 Consumer Education and Research Centre v Union of India, (1995) 3 SCC 42------12, 23
 Dalmia Cement v Union of India, (1996) 10 SCC 104----------------------------------------13
 Deepak Sibal v Punjab University & Anr., 1989 AIR 903---------------------------------6, 19
 Dinesh Kumar v State of Madhya Pradesh, (2004) 8 SCC 770------------------------------18
 E.P Royappa v State of Tamil Nadu & Anr., 1974 AIR 555----------------------------------17
 Federal Bank Lt. v Sagar Thomas & Ors., (2003) 10 SCC 733------------------------------10
 Francis Coralie Mullin v The Administrator, Union Territory of Delhi, AIR 1981 746- -23
 In re Kerala Education Bill, 1957, AIR 1958 SC 956-------------------------------------12, 13
 In Re Special Courts Bill, (1979) 1 SCC 380, 423---------------------------------------------17
 Indian express Newspaper Ltd. v Union of India, (1985) 1 SCC 641-----------------------20
 Indian Handicrafts Emporium v Union of India, (2003) 7 SCC 589--------------------------3

INDEX OF AUTHORITIES PAGE | IV
 Jasmine Ebenezer Arthur v HDFC ERGO General Insurance Company Limited &
Ors., 2019 SCC OnLine Mad 2246 9, 22
 Keshavnanda Bharati v the State of Kerala, (1973) 4 SCC 225------------------------------12
 Krishnan Kakkanth v Govt. of Kerala, AIR 1997 SC 128--------------------------------------1
 Laxmi Khandsari v State of Uttar Pradesh, AIR 1981 SC 873----------------------------6, 19
 LIC of India v Consumer Education & Research Centre, (1995) 5 SCC 482----------17, 21
 M. Jagdish Vyas v Union of India, (2010) 4 SCC 150-----------------------------------------18
 M. Nagaraj v Union of India, (2006) 8 SCC 212-----------------------------------------------17
 M/s Khedal Lal & Sons v State of UP, 1980 CriLJ 1346----------------------------------------4
 Maneka Gandhi v Union of India, 1978 AIR 597----------------------------------------------17
 Md. Faruk v State of Madhya Pradesh, AIR 1970 SC 93---------------------------------------3
 Minerva Mills v Union of India, AIR 1980 SC 1789--------------------------------------12, 13
 Mohd. Haneef Quareshi v State of Bihar, AIR 1958 SC 731-----------------------------------7
 Narendra Kumar v Union of India, 1960 AIR 430----------------------------------------------3
 Olga Tellis v Bombay Municipal Corporation, 1985 SCC (3) 545--------------------------13
 Pandit Parmanand Katara v Union of India, 1989 AIR 2039--------------------------------23
 Paschim Bengal Khet Mazdoor Samity v State of West Bengal, 1996 SCC (4) 37---------23
 Peerless General Finance & Investment Co. Ltd. v Reserve Bank of India, AIR 1992 SC.3
 R.K. Garg v Union of India, (1981) 4 SCC 676------------------------------------------------17
 Ramana Dayaram Shetty v International Airport Authority, 1979 AIR 1628----------17, 21
 Shayara Bano v Union of India, (2017) 9 SCC 1-----------------------------------------------20
 Sivani v State of Maharashtra, AIR 1995 SC 1770----------------------------------------------2
 Sreenivasa General Traders v State of Andhra Pradesh, AIR 1983 SC 1246---------------2
 State of Bombay v F. N. Balsara, 1951 AIR 318-------------------------------------------------3

INDEX OF AUTHORITIES PAGE | V
 State of Kerala v N. M. Thomas, AIR 1976 SCR (2) 762-------------------------------------13
 State of Punjab & Ors v Mohinder Singh Chawla, AIR 1997 SC 1225-------------------5, 7
 State of Punjab v Ram Lubhaya Bagga, (1998) 4 SCC 117---------------------------------5, 7
 State of Rajasthan v Shankar Lal Parmar, (2011)----------------------------------------------18
 State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75----------------------------------19
 Systopic Laboratories (P) Ltd. v Prem Gupta, AIR 1994 SC 205-----------------------------3
 Union of India v M.Valliappan, (1999) 6 SCC 259--------------------------------------------19
 United India Insurance Co. Ltd. v Manubhai Dharmasinhbai Gajera, (2008) 10 SCC 404
22
 United India Insurance Company Limited v Jai Parkash Tayal, 2018 SCC OnLine Del
7415 19, 21, 23
 Unni Krishnan v State of Andhra Pradesh, AIR 1993 SC 2178------------------------------12
STATUTES
 Assam Health (Prohibition of Manufacturing, Advertisement, Trade, Storage,

Distribution, Sale and Consumption of Zarda, Gutkha, Pan Masala, etc, containing
Tobacco and Nicotine) Act 2013 4
 Food Safety and Standards Act 2006 4
 The Cigarettes and Other Tobacco Products (Prohibition Of Advertisement And

Regulation Of Trade And Commerce, Production, Supply And Distribution) Act 2003.- 1,
6, 14
 The Prevention of Food Adulteration Act 1954--------------------------------------------------4
 The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export,

Transport, Sale, Distribution, Storage and Advertisement) Act 2019-------------------------6
 The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export,

Transport, Sale, Distribution, Storage And Advertisement) Act 2019------------------------1

INDEX OF AUTHORITIES PAGE | VI
CONSTITUTIONAL PROVISIONS
 Constitution of India 1950, Art 12 9
 Constitution of India 1950, Art 19(1)(g). 1
 Constitution of India 1950, Art 21-----------------------------------------------------1, 6, 11, 16
 Constitution of India 1950, Art 47-----------------------------------------------------3, 7, 11, 13
BOOKS
 Durga Das Basu, Commentary on the Constitution of India (9th edn, Lexis Nexis 2017)
11, 17
 M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018)------------------1, 11, 17
 Sujit Chaudhary, The Oxford Handbook of the Indian Constitution (OUP 2016)---------12
WEB SOURCES
 ‘How does smoking cause cancer?’ (Cancer Research UK, 19 March 2021)
<https://www.cancerresearchuk.org/about-cancer/causes-of-cancer/smoking-and-
cancer/how-does-smoking-cause-cancer> accessed 2 June 2022----------------------------15
 ‘Res Extra Commercium’ (Oxford Reference, 2021)

<https://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-
9780195369380-e-1822> accessed 5 June 2022-------------------------------------------------3
 ‘Tobacco’ (World Health Organization, 24 May 2022) <https://www.who.int/news-

room/fact-sheets/detail/tobacco> accessed on 2 June 2022-----------------------------------14
 Amit Yadav, Yogesh Pratap Singh, ‘Why Tobacco is Res Extra Commercium?’ (The
Statesman, 21 February 2018) <https://www.thestatesman.com/features/tobacco-res-
extra-commercium-1502589573.html> accessed on 2 June 2022-----------------------------4

INDEX OF AUTHORITIES PAGE | VII
 Anupam Manur, ‘Why e-cigarette ban in India will do more harm than good’ (Business
Today, 20 May 2021) <https://www.businesstoday.in/opinion/columns/story/why-e-
cigarette-ban-in-india-will-do-more-harm-than-good-296540-2021-05-20> accessed 4
June 2022 8
 Neetu Chandra Sharma, ‘Lok Sabha passes Prohibition of E-Cigarettes Bill’ (Livemint, 27
November 2019) <https://www.livemint.com/news/india/lok-sabha-passes-prohibition-of-
e-cigarettes-bill-11574851887939.html> accessed 3 June 2022-------------------------------6
 NIDA, ‘What are electronic cigarettes?.’ (National Institute on Drug Abuse, 4 May 2022)
<https://nida.nih.gov/publications/research-reports/tobacco-nicotine-e-cigarettes/what-
are-electronic-cigarettes> accessed 4 June 2022-------------------------------------------------8
 Preeti Sudan, ‘E-cigarettes could be banned promptly because of political will,

coordinated efforts’ (The Indian Express, 7 December 2020)
<https://indianexpress.com/article/opinion/columns/e-cigarette-ban-health-ministry-
7094385/> accessed 3 June 2022 7
 Reuters, ‘Ban on E-cigarette: Neither can you buy, nor can you use’ (Business Today, 18
November 2019) <https://www.businesstoday.in/latest/economy-politics/story/ban-on-e-
cigarette-neither-can-you-buy-nor-can-you-use-238755-2019-11-18> accessed 3 June
2022. 7
ARTICLES AND JOURNALS
 International Agency for Research on Cancer. IARC Monographs on the Evaluation of

the Carcinogenic Risk of Chemicals to Humans. Tobacco Smoke and Involuntary
Smoking. Vol. 83. Lyon: IARC Press; 2004a---------------------------------------------------18
FOREIGN CASES
 Adair v United States,208 US 161 (1908)-------------------------------------------------------21
 Eubank v Richmond, 226 US I37 (1912) 21
 Lochner v New York, 198 US 45 (1905) 21
 Philip Morris USA v Williams, 549 U.S. 346 (2007)------------------------------------------15

STATEMENT OF JURISDICTION PAGE | VIII
STATEMENT OF JURISDICTION
The petitioners have approached the Hon’ble Supreme Court of Diana under Article 32 of the
Constitution of Diana.
Article 32 of the Constitution of Diana reads as follows -
Article 32. Remedies for enforcement of rights conferred by this Part:
(1) The right to move the SC by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The SC shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the SC by clause (1) and (2), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the SC under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

STATEMENT OF FACTS PAGE | IX
STATEMENT OF FACTS
-BACKGROUND-
“Union of Diana” (Diana) is a democratic republic country in South Asia, with 130 crore
people, world’s second-most populous country. It is a religiously and ethnically diverse
nation. The Constitution of Diana safeguards the interest of each community as it aims to
treat everyone at parity and promote fraternity among all. It has adopted a quasi-federal
structure and has 15 states and 5 union territories. Diana is the second-largest producer and
third largest exporter of tobacco in the world.
-STATISTICS-
In the global scenario, Diana’s tobacco accounts for 10% of the area and 9% of the total
production. According to Diana Tobacco Research University Report, 2021, tobacco
contributes Rs. 4,400/- crores towards foreign exchange earnings accounting for 4% of the
country’s total agri-exports and Rs. 14,000 crores to excise revenue which is more than 10%
of the total excise revenue collection from all sources. According to another research by
Diana National Medical Institute, 28% of Diana’s population use tobacco in some form. It is
estimated that 99.5 million adults currently smoke tobacco, and 199.4 million adults use
smokeless tobacco. Tobacco consumption is responsible for more than 13.5 lakhs death every
year. The Union and the State exchequers collectively incur an annual medical expense of 1.8
lakh crores in the treatment of patients affected by tobacco use in India.
-LEGAL FRAMEWORK-
Union of Diana has ratified WHO’s Framework Convention on Tobacco Control in May,
2003 and in furtherance of the Convention has enacted the Cigarettes and other Tobacco
Products (Control and Regulation) Act, 2003. In 2019, it enacted another law called E-
Cigarettes Prohibition Act, 2019.
-THE CONTROVERSY-
One Mr. Prominent is a citizen of Diana born on 11th November, 1971. He studied at Diana
Management College and has been working in a private company as a Customer Relations
Officer. He is currently drawing a salary of Rs. 20,000 /month. He has been smoking
cigarettes and consuming pan masala that contains tobacco, since 1991. He has been
experiencing shortness of breath and pain in the chest since the beginning of 2021. On 05th
June, 2021 he
STATEMENT OF FACTS PAGE | X

STATEMENT OF FACTS PAGE | XI
was diagnosed with lung cancer by a team of doctors at Diana National Medical Institute. The
doctors are of the opinion that the cancer has been caused due to cigarette smoking. They
have advised him to undergo chemotherapy and asked him to deposit Rs. 5 lakh as advance
for the treatment. The total cost of the treatment is estimated to be Rs 15 lakh. In regard to the
funding of the treatment, Mr. Prominent contacted the insurance company. He has an annual
health insurance cover of up to 10 lakh rupees from Lord’s Insurance Company (a
government limited company incorporated in Diana) valid up to 31st March, 2022. However,
the insurance contract has a special Tobacco exclusion clause.
-DISPUTE-
Lord’s Insurance Company has, vide letter dated 10th July, 2021, refused to provide any
cover for the cancer treatment. Mr. Prominent has given a representation to Ministry of
Health and Family Welfare vide letter dated 21st July, 2021 and requested them to declare
that exclusions based on tobacco use are irrational. He has also claimed compensation from
the State for his treatment. He has also urged the government to ban all cigarette and tobacco
products as they are carcinogenic in nature.
Moreover, he has filed a writ of mandamus before the Hon’ble SC of Diana against Union of
Diana and impleaded Federation of Tobacco companies, insurance regulatory development
authority of Diana, Lord’s Insurance Company as respondents claiming that by permitting
sale of tobacco products, the State has violated his right to health. He claims that the
classification between cigarettes and e-cigarettes is irrational and arbitrary and the import,
sale, distribution, storage and circulation of all forms of tobacco must be prohibited within
the country. He has also claimed that the tobacco companies are liable to pay compensation
for causing cancer to him. He has also claimed compensation from the State as the State
permitted sale of harmful products. An NGO, Jan Swaasth Seva, registered in a State in
Diana, has separately filed a PIL under Article 32 of the Constitution seeking fast track
implementation of the ban and extending the ban to all forms of tobacco available for
consumption in India, on the grounds of public health, increasing youth mortality rate, etc.
Federation of Tobacco Companies has challenged the validity of tobacco regulation, ban, and
prohibition of public smoking as enabled by abovementioned two legislations. The federation
is claiming their fundamental right to trade and commerce.
The Supreme Court has clubbed the three petitions and decided to hear the matters together.

ISSUES RAISED PAGE | XI
ISSUES RAISED
-ISSUE I-
WHETHER THE REGULATION OF CIGARETTES AND BAN ON E-CIGARETTES, TO PROTECT THE

RIGHT TO PUBLIC HEALTH CAN OVERRIDE THE RIGHT TO TRADE AND COMMERCE OF THE
FEDERATION COMPANIES?
-ISSUE II-
WHETHER THE CLASSIFICATION BETWEEN CIGARETTES AND E-CIGARETTES, FOR THE PURPOSE
OF THE BAN, IS ARBITRARY AND IRRATIONAL?
-ISSUE III-
WHETHER MR. PROMINENT IS ENTITLED TO COMPENSATION BY STATE FOR PERMITTING THE
SALE OF CIGARETTES AND OTHER TOBACCO PRODUCTS; AND BY TOBACCO COMPANIES ON
ACCOUNT OF HARM CAUSED DUE TO THE USE OF THEIR PRODUCTS?
-ISSUE IV-
WHETHER THE SPECIAL EXCLUSION IN THE INSURANCE CONTRACT RELATING TO TOBACCO USE IS
CONSTITUTIONAL?

SUMMARY OF ARGUMENTS PAGE | XII
SUMMARY OF ARGUMENTS
I. THE REGULATION OF CIGARETTES AND BAN ON E-CIGARETTES, TO PROTECT THE RIGHT TO

PUBLIC HEALTH CAN OVERRIDE THE RIGHT TO TRADE AND COMMERCE OF THE
FEDERATION
COMPANIES
Federation of Tobacco Companies, claiming their fundamental right to trade and commerce,
challenged the validity of tobacco regulation, ban, and prohibition of public smoking. It is
humbly submitted before the Hon’ble Supreme Court that the regulation of cigarettes and ban
on e-cigarettes, to protect the right to public health can override the right to trade and
commerce of the federation companies as reasonable restriction can extend to regulation and
prohibition, tobacco is Res Extra Commercium and Right to Public Health prevails over the
Right to Trade and Commerce. The right to trade and commerce is subject to reasonable
restrictions under Article 19(6) of the constitution which iterates that the right can be
restricted in interests of general public. However, the right to life under Article 21, which
encapsulates the right to public health is not subject to any restrictions, is not eclipsed by any
other provision and the obligation on the state to uphold this right is not contingent on any
other factor.
II. THE CLASSIFICATION BETWEEN CIGARETTES AND E-CIGARETTES, FOR THE PURPOSE OF
THE BAN, IS ARBITRARY AND IRRATIONAL
In furtherance of his claim that by permitting sale of tobacco products, the State has violated
his right to health, Mr. Prominent also claimed that the classification between cigarettes and
e- cigarettes is irrational and arbitrary. It is humbly submitted that the classification between
cigarettes and e-cigarettes for the purpose of ban, is irrational and arbitrary as not banning
cigarettes infringes Article 21 and Article 47 and as cigarettes are more harmful and addictive
than E-Cigarettes. Cigarettes and other Tobacco Products (Control and Regulation) Act, 2003
was enacted to regulate cigarettes and other tobacco products whereas E-Cigarettes
Prohibition Act, 2019 has been enacted to completely ban e-cigarettes. However, the
classification lacks rationale given the similar lethal consequences of the products these
legislations regulate and ban. It is settled law that differentiation is not always discriminatory,
and to make a classification, there needs to be an objective for classification.

SUMMARY OF ARGUMENTS PAGE | XIII

SUMMARY OF ARGUMENTS PAGE | XIV
III. MR. PROMINENT IS ENTITLED TO COMPENSATION BY STATE FOR PERMITTING THE

SALE OF CIGARETTES AND OTHER TOBACCO PRODUCTS AND BY TOBACCO COMPANIES
ON
ACCOUNT OF HARM CAUSED DUE TO THE USE OF THEIR PRODUCTS
Mr. Prominent has claimed compensation against the sale of cigarette and other tobacco
products permitted by the State and carried on by tobacco companies. The tobacco products
have led to Mr. Prominent being afflicted with lung cancer. It is humbly submitted before this
Hon’ble Court that Mr. Prominent is entitled to compensation by State and the tobacco
companies as firstly, private entities can be made party to a writ petition. Secondly, the State
and Tobacco companies have caused actual harm to Mr. Prominent through the permitting
and selling of cigarettes and other tobacco products.
IV. THE SPECIAL EXCLUSION IN THE INSURANCE CONTRACT RELATING TO TOBACCO USE IS
UNCONSTITUTIONAL
It is humbly submitted that the special exclusion in the insurance contract relating to tobacco
use is unconstitutional. Firstly, ‘Exclusion clause’ does not stand the test of reasonableness
under Article 14 of the Constitution. Secondly, It is settled law that relative bargaining power
of contracting parties must be considered in determining the legal validity of a contract.
Lastly, ’Exclusion clause’ violates the Right to Healthcare and Medical-care under Article 21
of the Constitution.

SUMMARY OF ARGUMENTS PAGE | XV

ARGUMENTS ADVANCED PAGE | 1
ARGUMENTS ADVANCED
I. THE REGULATION OF CIGARETTES AND BAN ON E-CIGARETTES, TO

PROTECT THE RIGHT TO PUBLIC HEALTH CAN OVERRIDE THE
RIGHT TO TRADE AND COMMERCE OF THE FEDERATION
COMPANIES
¶1. Federation of Tobacco Companies, claiming their fundamental right to trade and
commerce, challenged the validity of tobacco regulation, ban, and prohibition of public
smoking enabled by Cigarettes and other Tobacco Products (Control and Regulation) Act,
20031 and E-Cigarettes Prohibition Act, 2019. 2 It is humbly submitted before the Hon’ble
Supreme Court that the regulation of cigarettes and ban on e-cigarettes, to protect the
right to public health can override the right to trade and commerce of the federation
companies as [A] Reasonable restriction can extend to Regulation and Prohibition, [B]
Tobacco is Res Extra Commercium, [C] Right to Public Health prevails over the Right to
trade and Commerce.
¶2. Article 21 lays down the right to life and personal liberty which also encapsulates the
right to public health.3 Article 19(1)(g) enshrines the right to practice any profession, or to
carry on any occupation, trade or business.4 However, this right is subject to reasonable
restrictions laid down by Article 19(6) which iterates that the right can be restricted in the
interests of general public.
A. REASONABLE RESTRICTION CAN EXTEND TO REGULATION AND PROHIBITION
¶3. In Krishnan Kakkanth v. Govt. of Kerala,5 the Supreme Court explained the concept of
reasonable restrictions and observed that the nature of reasonable restrictions is such that
it has to be ascertained from the point of view of the interests of the general public and
not from the perspective of the persons on whom the restrictions have to be or have been
imposed.6 A restriction cannot be termed unreasonable because of its severeness on the
1
The Cigarettes and Other Tobacco Products (Prohibition Of Advertisement And Regulation Of Trade And
Commerce, Production, Supply And Distribution) Act 2003.
2
The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution,
Storage And Advertisement) Act 2019.
3
Constitution of India 1950, Art 21.
4
Constitution of India 1950, Art 19(1)(g).
5
Krishnan Kakkanth v Govt. of Kerala, AIR 1997 SC 128.
6
M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018).

targeted trade.7 It is humbly submitted that (1) The impugned legislations fulfil the
constitutional intent behind reasonable restrictions and (2) A restriction can amount to
Prohibition.
(1) The impugned legislations fulfil the constitutional intent behind reasonable
restrictions
¶4. The nature of freedoms granted by Article 19 is not absolute. Absolute freedoms would
result into prioritizing individual interests over the collective public interests. Hence, the
reasonable restrictions tend to strike a balance between the two. For determining the
reasonableness of restrictions, the type of business and the prevailing conditions thereof
need to be gauged. These factors differ from trade to trade and thus no strict or codified
criteria pertaining to all trades can be laid.8 In Chintaman Rao v. State of Madhya
Pradesh,9 the Supreme Court held that the word reasonable implies intelligent care and
deliberation, that is, the choice of a course which reason dictates.
¶5. In Sivani v. State of Maharashtra,10 Supreme Court laid down the method to gauge the
reasonableness of a restriction under Article 19(6). It held that the restricting law should
strike a proper balance between social control and the right of an individual. The courts
need to look into factors such as “nature of the right enshrined, underlying purpose of the
restriction imposed, evil sought to be remedied by the law, its extent and urgency, how far
the restriction is or is not proportionate to the evil and the prevailing conditions at the
time.”
¶6. The impugned legislations seek to regulate cigarettes and tobacco products and ban e-
cigarettes in the interests of general public. The harmful impacts of tobacco and the
deaths caused due to cigarettes in a year are humongous. The legislations, in order to
protect the health of public at large, intend to put restrictions on the trade of such
products. Thus, it is submitted that the restrictions imposed through these legislations
fulfil the constitutional intent of reasonable restrictions.
(2) A restriction can amount to Prohibition
¶7. A reasonable restriction, in its endeavour to strike a balance between interests of general
public and interests of individuals, may amount to a prohibition if the damage to be
7
ibid.
8
Sreenivasa General Traders v State of Andhra Pradesh, AIR 1983 SC 1246.
9
Chintaman Rao v State of Madhya Pradesh, AIR 1951 SC 118.
10
Sivani v State of Maharashtra, AIR 1995 SC 1770.

remedied warrants such a prohibition.11 In Narendra Kumar v. Union of India,12 the

Supreme Court held that the term ‘restriction’ includes ‘prohibition’. It further ruled that
the reasonableness of such a restriction is gauged in the light of the background “facts and
circumstances under which the order was made, taking into account the nature of the evil
that was sought to be remedied by such law, the ratio of the harm caused to individual
citizens by the proposed remedy, to the beneficial effect reasonably expected to result to
the general public.”
¶8. Time and again, courts have held and taken the position that reasonable restrictions can
amount to complete prohibition in the interests of general public. 13 Thus, in the present
case, ban on e-cigarettes i.e., complete prohibition emanates from the power to impose
reasonable restrictions under Article 19(6).
B. TOBACCO IS RES EXTRA COMMERCIUM
¶9. The doctrine of res extra commercium finds its roots in the Roman Law. It means “things
outside of commercial intercourse.”14 The doctrine gives authorities power to impose
complete restriction or prohibition on certain types of trade.
¶10. Article 4715 of the Constitution, which lays down the duty of the state to raise the level
of nutrition and the standard of living and to improve public health, also encapsulates the
duty of the state to protect public health. In State of Bombay v. F. N. Balsara,16 the
Supreme Court held that Article 47 has a bearing on the idea of prohibition in pursuance
to the larger obligation of the state to maintain and protect public health.
¶11. It is a scientifically proven fact that smoking kills more than half of its consumers in
their life. According to the statistics furnished by the government, consumption of
tobacco kills more than nine lakh people every year in the country. Study also establishes
that tobacco is a highly addictive substance which contains nicotine. It is more harmful
and addictive than heroin or cocaine. Thus, free sale and easy availability of such
products per
11
Peerless General Finance & Investment Co. Ltd. v Reserve Bank of India, AIR 1992 SC.
12
Narendra Kumar v Union of India, 1960 AIR 430.
13
B. P. Sharma v Union of India, (2003) 7 SCC 309; Md. Faruk v State of Madhya Pradesh, AIR 1970 SC 93 ;
Systopic Laboratories (P) Ltd. v Prem Gupta, AIR 1994 SC 205 ; Indian Handicrafts Emporium v Union of
India, (2003) 7 SCC 589.
14
‘Res Extra Commercium’ (Oxford Reference, 2021)
<https://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-
1822> accessed 5 June 2022.
15
16
State of Bombay v F. N. Balsara, 1951 AIR 318.

se goes against and is an antithesis to the duty enshrined under Article 47 and the right to
life guaranteed under Article 21 of the Constitution.
¶12. 39th and 43rd World Health Assemblies17 also called out “to protect children and young
people from being addicted to the use of tobacco.” The enactment of the two legislations
is in pursuance of Article 21 and Article 47 and endeavour to fulfil the duty cast upon by
them. Moreover, they make it conspicuous that tobacco qualifies as res extra
commercium.
¶13. The State of Goa, in order to fulfil its duty, enacted the Food Safety and Standards Act
2006,18 which prohibited the use of tobacco and nicotine. As a consequence of this, all
tobacco products were banned. In Ankur Gutkha v. India Asthma Care Society,19 the
Supreme Court upheld the ban and went on to direct all other states to impose such bans.
Likewise, the State of Assam also enacted Assam Health (Prohibition of Manufacturing,
Advertisement, Trade, Storage, Distribution, Sale and Consumption of Zarda, Gutkha,
Pan Masala, etc, containing Tobacco and Nicotine) Act, 2013,20 and made the trade and
consumption of tobacco illegal. In M/s Khedal Lal & Sons v. State of UP,21 the Allahabad
High Court refused to hold that tobacco products are not food products and hence would
not fall under The Prevention of Food Adulteration Act, 1954. 22 It thus ruled in favour of
the restrictions imposed by the act on tobacco products.
¶14. In light of the afore mentioned instances and judicial pronouncements, it is conspicuous
that smoking products i.e., cigarettes and e-cigarettes are res extra commercium and thus,
the right to trade and commerce enshrined under Article 19 does not extend to these
products.
C. RIGHT TO PUBLIC HEALTH PREVAILS OVER THE RIGHT TO TRADE AND COMMERCE
¶15. It is humbly submitted that right to public health takes precedence over right to trade
and commerce under Article 19 of the Constitution. Though the right to public health
does not find its explicit mention in the Constitution, Supreme Court in Bandhua Mukti
Morcha
17
Amit Yadav, Yogesh Pratap Singh, ‘Why Tobacco is Res Extra Commercium?’ (The Statesman, 21 February
2018) <https://www.thestatesman.com/features/tobacco-res-extra-commercium-1502589573.html> accessed on
2 June 2022.
18
Food Safety and Standards Act 2006.
19
Ankur Gutkha v India Asthma Care Society, Special Leave Petition No. 16308 of 2007.
20
Assam Health (Prohibition of Manufacturing, Advertisement, Trade, Storage, Distribution, Sale and
Consumption of Zarda, Gutkha, Pan Masala, etc, containing Tobacco and Nicotine) Act 2013.
21
M/s Khedal Lal & Sons v State of UP, 1980 CriLJ 1346.
22
The Prevention of Food Adulteration Act 1954.

v. Union of India & Ors,23 interpreted Article 21 to include right to health which
guarantees the right to life. The view was upheld in State of Punjab & Ors v. Mohinder
Singh Chawla,24 where the court highlighted the constitutional obligation of the state to
maintain public health.25 Thus, it is clear and settled that the state is under an obligation to
maintain public health at all times and the right to public health is crystallized.
¶16. The right to trade and commerce is subject to reasonable restrictions under Article
19(6) of the constitution which iterates that the right can be restricted in interests of
general public. However, the right to life under Article 21, which encapsulates the right to
public health is not subject to any restrictions, is not eclipsed by any other provision and
the obligation on the state to uphold this right is not contingent on any other factor.
Moreover, the right to trade is explicitly subject to reasonable restrictions in interests of
general public. Thus, the provision per se establishes the precedence of right to life over
right to trade and commerce.
¶17. For instance, the recent pandemic witnessed nationwide lockdowns which brought
trade and commerce to a near stand still and the strict restrictions caused many trades and
businesses to close. But these apparently draconian strictures were mandatory to curb the
spread of COVID-19 and protect the health of general public. The right to public health
was prioritized over right to trade and commerce which was restricted by the virtue of
powers under Article 19(6).
¶18. Thus, it is humbly submitted that the regulation of cigarettes and ban on e-cigarettes, to
protect the right to public health can override the right to trade and commerce of the
federation companies.
In the light of the arguments advanced and authorities cited, it is humbly submitted that
on the basis of all these essentials, the regulation of cigarettes and ban on e-cigarettes, to
protect the right to public health can override the right to trade and commerce of the
federation companies.
23
Bandhua Mukti Morcha v Union of India & Ors, 1984 AIR 802.
24
State of Punjab & Ors v Mohinder Singh Chawla, AIR 1997 SC 1225.
25
State of Punjab v Ram Lubhaya Bagga, (1998) 4 SCC 117.

II. THE CLASSIFICATION BETWEEN CIGARETTES AND E-CIGARETTES,

FOR THE PURPOSE OF THE BAN, IS ARBITRARY AND IRRATIONAL
¶19. In furtherance of his claim that by permitting sale of tobacco products, the State has
violated his right to health, Mr. Prominent also claimed that the classification between
cigarettes and e-cigarettes is irrational and arbitrary.26
¶20. It is humbly submitted that the classification between cigarettes and e-cigarettes for the
purpose of ban, is irrational and arbitrary as [A] Not banning cigarettes infringes Article
21 and Article 47 and [B] Cigarettes are more harmful and addictive than E-Cigarettes.
¶21. Cigarettes and other Tobacco Products (Control and Regulation) Act, 2003 27 (herein
after ‘COTPA’) was enacted to regulate cigarettes and other tobacco products whereas E-
Cigarettes Prohibition Act, 201928 has been enacted to completely ban e-cigarettes.
However, the classification lacks rationale given the similar lethal consequences of the
products these legislations regulate and ban. It is settled law that differentiation is not
always discriminatory,29 and to make a classification, there needs to be an objective for
classification.30
A. NOT BANNING CIGARETTES INFRINGES ARTICLE 21 AND ARTICLE 47
¶22. The COTPA, 2003 regulates trade and commerce in tobacco products, prohibits
advertisements but despite its lethal impacts, does not endeavour to ban such products. On
the other hand, the government recently enacted E-Cigarettes Prohibition Act, 201931
which completely bans trade and commerce in e-cigarettes and makes its consumption
illegal recognising its harmful impacts.
¶23. Article 2132 lays down the right to life and personal liberty which also encapsulates the
right to public health. Though the right to public health does not find its explicit mention
in the Constitution, Supreme Court in Bandhua Mukti Morcha v Union of India & Ors33
26
Moot Proposition, ¶ 11.
27
Commerce, Production, Supply And Distribution) Act, 2003.
28
The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale,
Distribution, Storage and Advertisement) Act 2019.
29
Laxmi Khandsari v State of Uttar Pradesh, AIR 1981 SC 873.
30
Deepak Sibal v Punjab University & Anr., 1989 AIR 903.
31
Neetu Chandra Sharma, ‘Lok Sabha passes Prohibition of E-Cigarettes Bill’ (Livemint, 27 November 2019)
<https://www.livemint.com/news/india/lok-sabha-passes-prohibition-of-e-cigarettes-bill-
11574851887939.html> accessed 3 June 2022.
32
33
Bandhua Mukti Morcha v Union of India & Ors, 1984 SCR (2) 67.

interpreted Article 21 to include right to health which guarantees the right to life. The
view was upheld in State of Punjab & Ors v Mohinder Singh Chawla34 where the
court highlighted the constitutional obligation of the state to maintain public health.35
Article 4736 of the Constitution also casts upon the State the duty to bring about
prohibition of the consumption of intoxicating drinks and of drugs which are injurious to
health. It hence encapsulates the duty of the state to protect public health.
¶24. In the instant case, not banning of cigarettes is antithetical to Article 47 of the
Constitution which enjoins the State to prohibit all intoxicating and addictive substances.
In the case Mohd. Haneef Quareshi v. State of Bihar,37 the Court held that the complete
ban or prohibition of cow slaughter in the furtherance of Article 48 of the Constitution
was reasonable.
¶25. Similarly, parallel reasoning in the instant case, the State is bound by the directive
principle under Article 47 to prohibit and ban the sale and manufacture of cigarettes as
opposed to the status quo of regulation on grounds of reasonability and violation of public
health. Furthermore, the fundamental right to health enshrined under Article 21 and the
directive principle to safeguard public health and prohibit addictive substances should be
construed in a cooperative manner in adherence to the doctrine of harmonious
construction.
B. CIGARETTES ARE MORE HARMFUL AND ADDICTIVE THAN E-CIGARETTES
¶26. The government, acknowledging the harmful impacts and highly addictive nature of e-
cigarettes, banned its trade and made its usage illegal. 38 The government recognised it as
the electronic nicotine delivery system (ENDS) which contained a toxic and addictive
chemical (nicotine) available in nearly 7,000 flavours. India, with a huge young
population was found vulnerable to being addicted to e-cigarettes given the wide variety
of flavours it offers and its lucrative nature.39
34
State of Punjab & Ors v Mohinder Singh Chawla, AIR 1997 SC 1225.
35
State of Punjab v Ram Lubhaya Bagga, (1998) 4 SCC 117.
36
37
Mohd. Haneef Quareshi v State of Bihar, AIR 1958 SC 731.
38
Reuters, ‘Ban on E-cigarette: Neither can you buy, nor can you use’ (Business Today, 18 November 2019)
<https://www.businesstoday.in/latest/economy-politics/story/ban-on-e-cigarette-neither-can-you-buy-nor-can- you-
use-238755-2019-11-18> accessed 3 June 2022.
39
Preeti Sudan, ‘E-cigarettes could be banned promptly because of political will, coordinated efforts’ (The
Indian Express, 7 December 2020) <https://indianexpress.com/article/opinion/columns/e-cigarette-ban-health-
ministry-
7094385/> accessed 3 June 2022.

¶27. However, the similar but grave impacts of cigarettes have not being acknowledged
leading to its regulation and not ban. Regular cigarettes deliver 7,000 other chemicals
(arsenic, benzene, ammonia, lead, etc) to lungs along with nicotine, and therein lies the
biggest danger.40 Nicotine, scientifically proven, is highly addictive.41 The lethal impacts
of tobacco in cigarettes are well known. Despite that, the easy availability of cigarettes
and allowing its trade and commerce (and consequent consumption) not only infringes
Article 21 which contains the right to public health and is an antithesis to the duty cast
upon by Article 47, but it also makes the ban on e-cigarettes completely infructuous as a
more lethal alternative is easily available.
¶28. It is clear that cigarettes are more harmful than e-cigarettes but despite that are not
banned like e-cigarettes. Thus, recognising lethal impacts of one category of products and
banning it but not acknowledging the more harmful impacts of a similar product and
allowing its consumption and trade, is irrational and arbitrary. Thus, the classification
between cigarettes and e-cigarettes, for the purpose of the ban, is arbitrary and irrational.
In light of the arguments advanced and authorities cited, it is humbly submitted that
the classification between cigarettes and e-cigarettes, for the purpose of the ban, is
arbitrary and irrational.
III.MR. PROMINENT IS ENTITLED TO COMPENSATION BY STATE FOR

PERMITTING THE SALE OF CIGARETTES AND OTHER TOBACCO
PRODUCTS AND BY TOBACCO COMPANIES ON ACCOUNT OF HARM
CAUSED DUE TO THE USE OF THEIR PRODUCTS
¶29. Mr. Prominent has claimed compensation against the sale of cigarette and other tobacco
products permitted by the State and carried on by tobacco companies. The tobacco
products have led to Mr. Prominent being afflicted with lung cancer. It is humbly
submitted before this Hon’ble Court that Mr. Prominent is entitled to compensation by
State and the tobacco companies as [A] private entities can be made party to a writ
petition and [B] the State and
40
NIDA, ‘What are electronic cigarettes?.’ (National Institute on Drug Abuse, 4 May 2022)
<https://nida.nih.gov/publications/research-reports/tobacco-nicotine-e-cigarettes/what-are-electronic-cigarettes>
accessed 4 June 2022.
41
Anupam Manur, ‘Why e-cigarette ban in India will do more harm than good’ (Business Today, 20 May 2021)
<https://www.businesstoday.in/opinion/columns/story/why-e-cigarette-ban-in-india-will-do-more-harm-than-
good-296540-2021-05-20> accessed 4 June 2022.

Tobacco companies have caused actual harm to Mr. Prominent through the permitting and
selling of cigarettes and other tobacco products.
A. PRIVATE BODIES CAN BE MADE PARTIES TO A WRIT PETITION
¶30. Mr Prominent has filed a writ of mandamus before the Hon’ble Supreme Court of Diana
against Union of Diana and impleaded Federation of Tobacco companies, insurance
regulatory development authority of Diana, Lord’s Insurance Company as respondents
claiming that by permitting sale of tobacco products, the State has violated his right to
health. He has claimed that the tobacco companies are liable to pay compensation for
causing cancer to him. He has also claimed compensation from the State for permitting
the sale of cigarette and other harmful tobacco products.42
¶31. The petition has been filed under the writ jurisdiction of the Supreme Court as
enshrined in Article 3243 of the Constitution of Diana against the Union of India.
Furthermore, the Federation of Tobacco companies has been impleaded as a respondent in
the instant petition along with the Insurance Regulatory Development Authority of Diana.
¶32. It is humbly submitted that the writ jurisdiction is exercisable against the State. The
definition of ‘State’ and essential prerequisites of an authority being termed as ‘State’ has
been delineated under Article 12 44 of the Constitution and elaborated and elucidated
through landmark judgments of the Courts of the land. In the instant case, the Federation
of Tobacco companies is a collective representative of the privately-owned tobacco
companies and has been impleaded in the aforementioned petition for paying
compensation to Mr. Prominent for the harm caused to him by consuming their tobacco
products.
¶33. The Federation of Tobacco companies is liable for the harm caused to the petitioner in
the instant case and is bound to pay compensation for the same. Pertaining to this, the
Federation of Tobacco companies can be impleaded and made a party in this writ petition.
¶34. In the case Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company
Limited & Ors.45, the Madras High Court has held that a writ petition is maintainable
against any private body if it has a public duty imposed on it.
42
43
44
45
Jasmine Ebenezer Arthur v HDFC ERGO General Insurance Company Limited & Ors., 2019 SCC OnLine
Mad 2246.


¶35. Furthermore, the Supreme Court in the case Federal Bank Lt. v. Sagar Thomas &
Ors.46 provided an exception stating that a private body or a person may be amenable to
writ jurisdiction only where it may become necessary to compel such body or association
to enforce a statutory obligation or such obligations of public nature.
¶36. Therefore, in the present case, the Federation of tobacco companies would be amenable
to writ jurisdiction as it is essential to compel the companies to enforce the statutory
obligation under Article 21 and Article 47 of the Constitution and the obligation is of
public nature as it has a cascading effect on the health of the citizens in general.
¶37. In the instant case, the Federation of tobacco companies indulge in the sale of products
which are consumed by the masses and has dire consequences on their health. They are
bound by the public duty of being a manufacturer whose products should not have ill-
intended or harmful effects on consumers.
¶38. Mr. Prominent, being a consumer of their product and part of the general public has
suffered a detrimental impact on his health due to the consumption of tobacco products.
The Federation of tobacco companies are thus bound to be liable for the harm caused by
their products.
¶39. It is humbly submitted that the Federation of tobacco companies will be amenable to
writ jurisdiction under Article 32 of the Constitution and would be a party in the instant
petition for liability owed to Mr. Prominent.
B. MR. PROMINENT IS ENTITLED FOR COMPENSATION
¶40. It is humbly submitted that Mr. Prominent is entitled to compensation from the (1)State
and the (2)tobacco companies for the harm caused to him by the use of tobacco products.
(1) Liability of State towards Mr. Prominent
¶41. Diana is the second-largest producer and third largest exporter of tobacco in the world.
In the global scenario, Diana’s tobacco accounts for 10% of the area and 9% of the total
production.47
¶42. According to a research by Diana National Medical Institute, 28% of Diana’s

population use tobacco in some form. It is estimated that 99.5 million adults currently
46
Federal Bank Lt. v Sagar Thomas & Ors., (2003) 10 SCC 733.
47

smoke tobacco, and 199.4 million adults use smokeless tobacco. Tobacco consumption is
responsible for more than 13.5 lakhs death every year. The Union and the State
exchequers collectively incur an annual medical expense of 1.8 lakh crores in the
treatment of patients affected by tobacco use in India.48
¶43. It is humbly submitted before this Hon’ble Court that Mr. Prominent had been smoking
cigarettes and consuming pan-masala containing tobacco since 1991. The State is liable
for the harm caused to Mr. Prominent due to the consumption of tobacco products as the
State permitted the sale of harmful products.
¶44. The sale of harmful products having disastrous effects on health of citizens infringes
upon the fundamental right to health enshrined under Article 21 49 of the Constitution of
Diana. The State has thus infringed upon the rights of Mr. Prominent by permitting the
sale of harmful tobacco products.
¶45. It is humbly submitted that the State has a constitutional duty endowed upon it by
Article 4750 of the Constitution of Diana, which is a part of the directive principles of state
policy, enjoining it to raise the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties. It further obligates the
State to endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.51
¶46. Cigarettes and other tobacco products would fall under the definition of drugs which
are injurious to health as per Article 47 of the Constitution of Diana making their
prohibition a prerogative of the State pertaining to its duty to abide by the Directives
Principles of State Policy.52
¶47. The sale of cigarette and other tobacco products being permitted by the State is a blatant
dereliction of duty as it violates and infringes upon the fundamental right to health of the
citizens. The harm caused to individuals through the consumption of tobacco products,
such as Mr. Prominent in the instant case, is a dire consequence of the State abdicating its
duty
48
49
50
51
52
Durga Das Basu, Commentary on the Constitution of India (9th edn, Lexis Nexis 2017).

to uphold the fundamental rights guaranteed by the Constitution and the welfare of the
citizens at large.53
¶48. In the case, Bandhua Mukti Morcha v. Union of India54, the Hon’ble Supreme Court
held that although the Directive Principles of state policy are not binding obligations and
hold persuasive value, yet they should by duly implemented by the State. Further, the
Court held that dignity and health fall within the ambit of life and liberty under Article 21
of the Constitution.55
¶49. Furthermore, in the case Consumer Education and Research Centre v. Union of India
& Ors.56, the Supreme Court opined that the right to health was additionally a
fundamental factor and facet under right to life enshrined in Article 21 of the Constitution
of Diana.57
¶50. Article 47 being a directive principle of state policy is not justiciable 58 and cannot be
enforced by the judiciary yet the Courts of the land have interpreted the significance of
directive principles59 and have construed a harmonious construction 60 with fundamental
rights placing them at equal pedestals for their reverence by the State and subsequent
adherence and enforcement.61
¶51. The doctrine of harmonious construction of fundamental rights and directive principles
was advocated by the Supreme Court in the landmark case of In re Kerala Education Bill,
195762 observing that though directive principles cannot override fundamental rights, but
in determining the scope and ambit of fundamental rights, Courts should adopt the
doctrine of harmonious construction and attempt to give effect to both without conflict.
¶52. The Hon’ble Supreme Court in the case Unni Krishnan v. State of Andhra Pradesh63,
ruled that Fundamental rights and directive principles are supplementary and
complementary to each other and that the provisions in Part III should be interpreted
having
53
ibid.
54
Bandhua Mukti Morcha v Union of India, AIR 1984 SC 812.
55
ibid.
56
Consumer Education and Research Centre v. Union of India & Ors., 1995 SCC (3) 42.
57
ibid.
58
59
Keshavnanda Bharati v the State of Kerala, (1973) 4 SCC 225
60
Sujit Chaudhary, The Oxford Handbook of the Indian Constitution (OUP 2016).
61
Minerva Mills v Union of India, AIR 1980 SC 1789.
62
In re Kerala Education Bill, 1957, AIR 1958 SC 956
63
Unni Krishnan v State of Andhra Pradesh, AIR 1993 SC 2178.

regard to the Preamble and the Directive Principles of state policy. 64 This view was
corroborated by the Supreme Court in the case Dalmia Cement v. Union of India65.
¶53. In the case, State of Kerala v. N. M. Thomas66, the Supreme Court held that the
fundamental rights and directive principles should be construed harmoniously and efforts
must be made to solve disputes between them. Similarly, in the case Olga Tellis v.
Bombay Municipal Corporation67, the Supreme Court held that directive principles are
fundamental in the governance of the country and thus equal significance as fundamental
rights must be imparted to the directive principles.
¶54. Furthermore, in the landmark judgment of Minerva Mills v. Union of India68, the Court
observed that Part III and Part IV of the Constitution are the two wheels of the chariot as
an aid to make social and economic democracy emphasising upon the cooperative nature
of the fundamental rights and directive principles.
¶55. It is humbly submitted that the abdication of duty to enforce the directive principle of
state policy under Article 47 by the State making it liable for the harm caused by the sale
and consumption of cigarettes and other hazardous tobacco products. Mr. Prominent
being diagnosed with lung cancer caused to cigarette smoking is a consequence of the
State allowing the sale of cigarettes and other tobacco products in blatant disregard of the
Article 47 which enjoins the State to bring about prohibition of drugs and intoxicating
substances.69
¶56. Therefore, in the instant case, the State has abdicated its duty enshrined under Article
47 of the Constitution to ensure improvement of public health and has led to the
infringement and violation of the right to health of Mr. Prominent as guaranteed under
Article 21 of the Constitution of Diana and is liable to pay compensation to him in light
of the aforementioned legal precedents and reasoning.
64
In re Kerala Education Bill, 1957, AIR 1958 SC 956.
65
Dalmia Cement v Union of India, (1996) 10 SCC 104.
66
State of Kerala v N. M. Thomas, AIR 1976 SCR (2) 762.
67
Olga Tellis v Bombay Municipal Corporation, 1985 SCC (3) 545.
68
Minerva Mills v Union of India, AIR 1980 SC 1789.
69

(2) Liability of tobacco companies towards Mr. Prominent
¶57. It is humbly submitted that the federation of tobacco companies are liable to pay
compensation to Mr. Prominent for the harm caused to him due to the consumption of
their cigarette and other tobacco products leading to him getting diagnosed with lung
cancer.70
¶58. In the instant case, the petitioner was smoking cigarettes and consuming tobacco in the
form of pan masala since 1991.71 The Federation of tobacco companies were the
manufacturer and seller of cigarette and other tobacco products.
¶59. The consumption of tobacco products in the form of cigarettes and pan masala by Mr.
Prominent led to his diagnosis of lung cancer. The cigarettes produced and sold by the
tobacco companies are opined by the doctors to be the reason behind the lung cancer
diagnosed in Mr. Prominent. The petitioner has claimed compensation from the tobacco
companies for the harm caused to him through the consumption of their products.
¶60. The cigarette and tobacco companies are regulated by the Cigarettes and other Tobacco
Products (Control and Regulation) Act, 200372 and it was enacted to prohibit the
advertisement of, and to provide for the regulation of trade and commerce in, and
production, supply and distribution of, cigarettes and other tobacco products.
¶61. The cigarette and other tobacco products are inexorably harmful for consumption in
any form. Tobacco consumption is responsible for more than 13.5 lakhs death every year.
It causes cancer, particularly oral and lung cancer, respiratory disorders, stroke, and
cardiovascular diseases, and is the risk factor for many other fatal diseases.73
¶62. The lung cancer diagnosed to Mr. Prominent has been corroborated by the doctors of
Diana National Medical Institute74. According to WHO75, All forms of tobacco are
harmful, and there is no safe level of exposure tobacco. Cigarette smoking is the most
common form of tobacco use worldwide.
70
71
ibid.
72
Commerce, Production, Supply And Distribution) Act, 2003.
73
74
ibid.
75
‘Tobacco’ (World Health Organization, 24 May 2022) <https://www.who.int/news-room/fact-
sheets/detail/tobacco> accessed on 2 June 2022.

¶63. It is humbly submitted that harmful chemicals in cigarette smoke affect the entire body,
particularly our lungs. And smoking causes at least 15 different cancer types.76 Mr.
Prominent had started smoking in 1991 and he was diagnosed with lung cancer in 2021,
two decades which is an ideal time for maturation and emergence of disorders associated
with smoking or consuming tobacco products.
¶64. The cigarette and tobacco companies are aware of the aforementioned risks associated
with tobacco products and still engage in the manufacture and sale of these products. The
Federation of tobacco companies operates in an industry that contributes Rs. 4,400/-
crores towards foreign exchange earnings accounting for 4% of the country’s total agri-
exports and Rs. 14,000 crores to excise revenue which is more than 10% of the total
excise revenue collection from all sources.77
¶65. The tobacco companies engaged in a business catering to the public at large is endowed
with a moral duty to ensure that their products are not causing any harm or detriment to
the health of their customers and consumers. In the instant case, the federation of tobacco
companies are blatantly violating this duty and are continuously selling products having
disastrous effects on the health of their customers, the petitioner being a case in point.
¶66. In the case Philip Morris USA v. Williams78, Jesse Williams smoked three packets of
cigarette a day in the hope that the company would not sell him anything that would harm
him. Later, he was diagnosed with lung cancer and succumbed to the disease. The jury, in
the present case, awarded punitive damages worth $79.5 million to the cigarette company
owing to the dangers to health that their products carried.
¶67. In the instant case, Mr. Prominent suffers from a similar predicament wherein the
cigarette and tobacco he consumed has caused a detrimental effect on his health leading
him to be diagnosed with lung cancer. The Federation of tobacco companies are liable for
the harm caused by their products.
76
‘How does smoking cause cancer?’ (Cancer Research UK, 19 March 2021)
<https://www.cancerresearchuk.org/about-cancer/causes-of-cancer/smoking-and-cancer/how-does-smoking-
cause-cancer> accessed 2 June 2022.
77
78
Philip Morris USA v Williams, 549 U.S. 346 (2007)

¶68. It is humbly submitted that Mr. Prominent is bound to be compensated by the

Federation of tobacco companies for the detrimental harm caused to him by cigarette and
other tobacco products.
In the light of the arguments advanced and authorities cited, it is humbly submitted that
the Mr. Prominent is entitled to compensation by State for permitting the sale of
cigarettes and other tobacco products and by tobacco companies on account of harm
caused due to the use of their products
IV. THE SPECIAL EXCLUSION IN THE INSURANCE CONTRACT RELATING

TO TOBACCO USE IS UNCONSTITUTIONAL
¶69. The special exclusion in the insurance contract relating to tobacco use provides that the
insurance does not apply to, or the benefit thereof does not extend to individuals and
situations where “any damages, loss, cost, or expense arising out of the actual or alleged
emergence, contraction, aggravation, or exacerbation of any form of cancer, carcinoma,
cancerous or precancerous condition, arteriosclerosis, heart disease or any other injury,
sickness, disease or conditions of the human body as a result of the consumption or use of
or exposure to the consumption or use of any “tobacco product”.”79 It is humbly
submitted before the Hon’ble Supreme Court that the special exclusion in the insurance
contract relating to tobacco use (hereinafter referred to as the ‘exclusion clause’) violates
Articles 1480 & 2181 of the Constitution and hence, is unconstitutional as [A] Exclusion
clause does not stand the test of reasonableness under Article 14 of the Constitution. [B]
It is settled law that relative bargaining power of contracting parties must be considered in
determining the legal validity of a contract. [C] Exclusion clause violates the Right to
Healthcare and Medical-care under Article 21 of the Constitution.
A. EXCLUSION CLAUSE IN THE INSURANCE CONTRACT RELATING TO TOBACCO

USE DOES NOT STAND THE TEST OF REASONABLENESS UNDER ARTICLE 14 OF
THE
CONSTITUTION
¶70. As a social security measure, “insurance”, and more importantly, “health insurance”,
should be consistent with the constitutional animation and the conscience of socio-
economic justice envisaged and adumbrated in the Constitution. Any person or authority
in
79
80
81

the field of insurance owes a public duty to evolve their policies, subject to such
reasonable, just, and fair terms and conditions accessible to all the segments of the society
for insuring the lives of eligible persons. The eligibility conditions must conform to the
Preamble, Fundamental Rights and Directive Principles of State Policy enshrined in the
Constitution and have to stand the test of reasonableness.82
¶71. The test of reasonableness has been used by the Supreme Court from the very
beginning to test the constitutionality of a piece of legislation or state action under Article
14.83 Article 14 strikes at arbitrariness, for any arbitrary action involves the negation of
equality.84 The Hon’ble Supreme Court, in a catena of cases,85 has held that equality is
antithetical to arbitrariness, and that equality and arbitrariness are sworn enemies.86 As
such, any piece of legislation so enacted by the legislature and/or any state action must be
rooted in reasonableness and should not be arbitrary and/ or irrational.87
¶72. It is submitted that the exclusion clause does not stand the test of reasonableness under
Article 14 as it suffers from the following three infirmities, (1) The exclusion clause is not
based on any intelligible differentia. (2) The differentia has no rational nexus with the
object the exclusion clause purports to achieve. (3) The exclusion clause is manifestly
arbitrary in nature and application.
(1) The exclusion clause is not based on any Intelligible Differentia
¶73. The concept of equality under the Indian law has evolved significantly over the years.
By way of numerous judgments, the Courts have now settled that the legislature is
entitled to make reasonable classification in, and for the purposes of a legislation.88 Any
classification that is reasonable in the eyes of the law is not discriminatory,89 for the
concept of equality allows differential treatment, so long as this differential treatment is
founded on an intelligible premise and is justified legally.90 However, in the absence of
a reasonable
82
LIC of India v Consumer Education & Research Centre, (1995) 5 SCC 482.
83
84
Durga Das Basu, Commentary on the Constitution of India (9th edn, Lexis Nexis 2017).
85
E.P Royappa v State of Tamil Nadu & Anr., 1974 AIR 555; Maneka Gandhi v Union of India, 1978 AIR 597.
86
Ramana Dayaram Shetty v International Airport Authority, 1979 AIR 1628.
87
In Re Special Courts Bill, (1979) 1 SCC 380, 423.
88
R.K. Garg v Union of India, (1981) 4 SCC 676.
89
Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34.
90
M. Nagaraj v Union of India, (2006) 8 SCC 212.

basis for so doing, classifications made by the legislature are bad in the eyes of law and
are not permitted.91 Article 14 thus means that ‘equals should be treated alike’.92
Article 14 condemns discrimination not only in substance, but also in the application of
the law and the procedure for implementation thereof.93 This means that if special
procedure is laid down for a ‘class of people ’as distinguished from others then ‘the class
’must be based on an intelligible differentia which is based upon some real and
substantial distinction.94
¶74. The exclusion clause makes a clear distinction between those individuals who consume/
use, or are exposed to, or are alleged to consume/ use, or are alleged to be exposed to
“any” tobacco product and those who are not. The said classification is not founded on
any sound reasoning, and the differentia so carved is not intelligible.
¶75. It is emphatically submitted that there is no iota of scientific evidence that proves that
a medical condition in the nature of “cancer, carcinoma, cancerous or precancerous
conditions, arteriosclerosis, heart disease or any other injury, sickness, disease or
conditions of the human body”95 could arise purely as a result of an individual’s exposure
to or use/ consumption of a tobacco product. The causation behind the occurrence of any
of the above said medical conditions could be a host of factors as opposed to such
exposure, use or consumption. In addition, exposure to second- hand tobacco smoke has
also been conclusively shown to be carcinogenic to the lungs.96
¶76. Assuming, arguendo, that exposure to or consumption/ use of a tobacco product is the
sole reason behind the occurrence of the above said medical conditions and hence must
render an individual’s claim to their insurance invalid, the natural corollary must be that
individuals who do not consume/ use or are not exposed to a tobacco product will never
suffer from the above said medical conditions. Considering that individuals,
notwithstanding their exposure to or consumption/ use a tobacco product are equally
susceptible to the above said illnesses or medical condition, the classification between
individuals who smoke and who do not is profoundly illogical and deserves to be set
aside.
91
State of Rajasthan v Shankar Lal Parmar, (2011) 14 SCC 235
92
M. Jagdish Vyas v Union of India, (2010) 4 SCC 150.
93
Charan Lal Sahu v Union of India, (1990) 1 SCC 613.
94
Dinesh Kumar v State of Madhya Pradesh, (2004) 8 SCC 770.
95
96
International Agency for Research on Cancer. IARC Monographs on the Evaluation of the Carcinogenic Risk
of Chemicals to Humans. Tobacco Smoke and Involuntary Smoking. Vol. 83. Lyon: IARC Press; 2004a.

¶77. Furthermore, the distinction between the individuals as above mentioned is founded on
one’s exposure or consumption/ use of a “tobacco product”. The key differentiating
factor, therefore, becomes a tobacco product. It is submitted that premising the distinction
on tobacco products alone is inherently flawed, for it fails to take into account that
exposure to a host of other different products, pre-existing medical conditions, genetic
factors, etc. could indeed be the cause behind the occurrence of any of the above said
medical conditions, and not mere exposure to or consumption/ use of a tobacco product.
Illustratively, a person may develop a pulmonary medical condition due to their exposure
to extremely toxic air in a polluted city, but they may be denied the benefits of a medical
insurance purely because they are also exposed to a tobacco product.
¶78. In view of the above said, it is humbly argued and submitted before this Hon’ble Court
that founding the differentia on one’s exposure to or consumption/ use of a tobacco
product is devoid of any rational logic or reasoning and is accordingly not intelligible.
Inasmuch as the right of an insurance company to frame their own terms, for the reason of
its being a private or autonomous entity, is concerned, the courts have time and again held
that insurance companies are free to structure their contracts based on reasonable and
intelligible factors which should not be arbitrary and in any case cannot be
‘exclusionary’.97
(2) The differentia has no rational nexus with the object the exclusion clause
purports to achieve
¶79. It is settled law that differentiation is not always discriminatory, 98 and to make a
classification, there needs to be an objective for classification. 99 The differentia which is
the basis of classification and the object of the Act are distinct and what is necessary is
that there must be nexus between them.100 If there is a rational nexus on the basis of which
differentiation has been made with the object sought to be achieved by a particular
provision, then such differentiation is not discriminatory and does not violate the
principles of Article 14 of the Constitution.101
¶80. According to another research by Diana National Medical Institute, 28% of Diana’s
population use tobacco in some form. It is estimated that 99.5 million adults currently
97
United India Insurance Company Limited v Jai Parkash Tayal, 2018 SCC OnLine Del 7415.
98
Laxmi Khandsari v State of Uttar Pradesh, AIR 1981 SC 873.
99
Deepak Sibal v Punjab University & Anr., 1989 AIR 903.
100
State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
101
Union of India v M.Valliappan, (1999) 6 SCC 259.

smoke tobacco, and 199.4 million adults use smokeless tobacco. Tobacco consumption is
responsible for more than 13.5 lakhs death every year. It causes cancer, particularly oral
and lung cancer, respiratory disorders, stroke, and cardiovascular diseases, and is the risk
factor for many other fatal diseases. The Union and the State exchequers collectively
incur an annual medical expense of 1.8 lakh crores in the treatment of patients affected by
tobacco use in India.102
¶81. As such, the object of the exclusion clause is to regulate the exposure to or
consumption/use of tobacco products and prioritize overall public health, by limiting this
huge expenditure burden on State. But the insurance companies in garb of ‘IRDA’s
Guidelines on Standardization of Exclusions in Health Insurance Contacts’ and no
intelligible differentia, use excessive, disproportionate and irrational language to deny the
claim of patients even though there is no iota of scientific evidence that proves that a
medical condition in the nature of “cancer, carcinoma, cancerous or precancerous
conditions, arteriosclerosis, heart disease or any other injury, sickness, disease or
conditions of the human body”103 could arise purely as a result of an individual’s exposure
to or use/ consumption of a tobacco product. The causation behind the occurrence of any
of the above said medical conditions could be a host of factors as opposed to such
exposure, use or consumption.
¶82. Therefore, it is emphatically argued that in the guise of limiting the expenditure burden
on state for the treatment of tobacco patients, insurance companies use such sweeping
exclusion clause for their own benefit. Hence, it is humbly submitted before this Hon’ble
Court that the special exclusion clause in the insurance contract relating to tobacco use
has no rational nexus with the object it purports to achieve.
(3) The exclusion clause is manifestly arbitrary in nature and application
¶83. It is humbly submitted before this Hon’ble court that the test of manifest arbitrariness
has been laid down to invalidate plenary legislation under Article. 14. 104 The Indian
Supreme Court has held that any legislation which is excessive and disproportionate in
nature will be considered manifestly arbitrary.105 The United States Supreme Court
decided
102
103
104
Indian express Newspaper Ltd. v Union of India, (1985) 1 SCC 641.
105
Shayara Bano v Union of India, (2017) 9 SCC 1; Bachan Singh v State of Punjab, (1980) 2 SCC 684.

that the action by any organ of the government which is unreasonable106 or arbitrary107
shall be deemed unconstitutional.108
¶84. In the instant case, Lord’s Insurance company had inserted a special exclusion clause
pertaining to any cancerous or heArticle related condition arising as a consequence of
consumption of any tobacco product. The clause in question precludes an individual from
availing the benefits of insurance solely owing to the exposure to or consumption of
tobacco products in any form.
¶85. It is humbly submitted that such an exclusion clause institutes a blanket preclusion from
the insurance scheme in a manner which is manifestly arbitrary in nature. Furthermore,
the diagnosis of cancer or any related disease cannot be traced accurately to exposure to
or consumption of any tobacco product.
¶86. The principles laid down above in respect of life insurance policy equally apply with
greater vigour to health insurance.109 If the legislative or executive action in question is
arbitrary and therefore constituting the denial of equity, it is considered as unequal and
hence, a violation of Article 14.110
¶87. Therefore, the special exclusion clause inserted by the insurance company is arbitrary
in nature and application and thus, violates Article 14 of the Constitution.
B. IT IS SETTLED LAW THAT RELATIVE BARGAINING POWER OF CONTRACTING

PARTIES MUST BE CONSIDERED IN DETERMINING THE LEGAL VALIDITY OF A
CONTRACT
¶88. The Supreme Court has held in LIC of India v. Consumer Education & Research
Centre,111 that if a contract or a clause in a contract is found unreasonable or unfair or
irrational, one must look to the relative bargaining power of the contracting parties.
¶89. The Courts will not enforce and will, when called upon to do so, strike down an unfair
and unreasonable clause in a contract, entered into between parties who are not equal in
bargaining power. The principle will apply where the inequality of bargaining power is
the result of the great disparity in the economic strength of the contracting parties; where
the inequality is the result of circumstances, whether of the creation of the parties or
not; to
106
Eubank v Richmond, 226 US I37 (1912).
107
Adair v United States,208 US 161 (1908).
108
Lochner v New York, 198 US 45 (1905) .
109

110
Ramana Dayaram Shetty v International Airport Authority, 1979 AIR 1628.
111
LIC of India v Consumer Education & Research Centre, (1995) 5 SCC 482

situations in which the weaker party is in a position in which he can obtain goods or
services or means of livelihood only upon the terms imposed by the stronger party or go
without them; where a man has no choice, or rather no meaningful choice, but to give his
assent to a contract or to sign on the dotted line in a prescribed or standard form or to
accept a set of rules as part of the contract, however, unfair, unreasonable and
unconscionable a clause in that contract or form or rules may be.112
¶90. Further, the Supreme Court has held that every case involving an insurance policy
would not be considered to be a case involving a contract qua contract question alone. 113
The functions of the insurance companies must indisputably be construed having regard
to the larger public policy and public interest114.
¶91. Thus, even though law seems to be clear in constituting a balance between the insured
party and insurer, in reality, there is no equality between the two as the insurer is the
richest corporation and the individual is an ordinary individual. The malpractice and
arbitrary use of power by the insurance companies therefore, must be restrained, or else,
the insurer would continue to take advantage of the insured by falsely repudiating the
claims made by the insured.115
¶92. In the present case, there is inherent inequality of bargaining power between the parties
as there is manifestly great disparity in the economic strength of the contracting parties
and because the insured being the weaker party, to obtain the services of the insurance
company had to agree upon the terms imposed by the stronger party i.e. insurance
company. This inherent inequality of bargaining power thus, renders this contract an
unconscionable contract.
¶93. Hence, exclusions such as the ones relating to tobacco use do not remain merely in the
realm of contracts but overflow into the realm of public law and the broad exclusion of
tobacco use is thus not merely a contractual issue between the insurance company and the
insured but spills into the broader canvas of Right to Health.
112
Central Inland Water Transport Corporation Ltd. and another v Brojo Nath Ganguly & Anr., AIR 1986 SC
1571.
113
United India Insurance Co. Ltd. v Manubhai Dharmasinhbai Gajera, (2008) 10 SCC 404.
114
ibid.
115
Jasmine Ebenezer Arthur v HDFC ERGO General Insurance Company Limited & Ors., 2019 SCC OnLine
Mad 2246.

C. EXCLUSION CLAUSE VIOLATES THE RIGHT TO HEALTHCARE AND MEDICAL-CARE

UNDER ARTICLE 21 OF THE CONSTITUTION
¶94. The letter of the Constitution of India does not expressly recognize Right to Health as
a fundamental right under Part III of the Constitution (Fundamental Rights). However, the
Supreme Court has repeatedly observed that the expression “life” in Article 21 means a
life with human dignity and not mere survival or animal existence.116
¶95. Therefore, through judicial interpretation, the Supreme Court has held that the Right to
Health has no meaning without the Right to Healthcare and Right to Health, medical aid
to protect the health is a fundamental right under Article 21, read with Articles 39(e), 41,
43, 48-A and all related articles and fundamental human rights to make the life
meaningful and purposeful with dignity of person.117 Also, the term health includes
medical care and health facilities.118
¶96. In the case of Paschim Bengal Khet Mazdoor Samiti v. State of West Bengal,119 the
Supreme Court placed the onus of providing healthcare to the citizens on the State. In
another case of Pandit Parmanand Katara v. Union of India,120 the Court expanded the
scope of this onus to cover even private clinics and nursing homes, by stressing that no
legal or other formality would take precedence over saving the life of an individual. These
observations of the Court make it clear that healthcare is a fundamental right of every
citizen of India and the onus of providing it lies on the State, especially if an individual
cannot afford it.
¶97. Thus, Right to Healthcare is a part of Right to Life. Medical care and health facilities
are part of Right to Healthcare. With spiraling medical costs, health insurance has to be an
integral part of medical care and health facilities and therefore, healthcare without health
insurance is a challenge.121 The individual's Right to avail health insurance is an
inalienable part of the Right to Healthcare.122 Thus, Health insurance with the exclusion of
“tobacco use” hits at the basic right of an individual to avail of insurance for prevention,
diagnosis, management and cure of diseases. Excluding any particular category of
individuals i.e.,
116
Francis Coralie Mullin v The Administrator, Union Territory of Delhi, AIR 1981 746.
117
Consumer Education and Research Centre v Union of India, (1995) 3 SCC 42.
118
C.E.S.C. Limited v Subhash Chandra Bose, (1992) 1 SCC 441.
119
Paschim Bengal Khet Mazdoor Samity v State of West Bengal, 1996 SCC (4) 37.
120
Pandit Parmanand Katara v Union of India, 1989 AIR 2039.
121
122
ibid.

those with use tobacco, from obtaining health insurance or having their claims honoured,
would be per se discriminatory and violative of the citizen's Right to Health.
In the light of the arguments advanced and authorities cited, it is humbly submitted that on
the basis of all these essentials, the special exclusion in the insurance contract relating to
tobacco use is unconstitutional.

PRAYER PAGE | XIV
PRAYER
Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities
cited, the petitioners most humbly pray before the Hon ble Supreme Court of Diana to
adjudge,
declare and hold the following:
1. That by permitting sale of tobacco products, the State has violated Mr. Prominent’s
right to health.
2. That the classification between cigarettes and e-cigarettes, for the purpose of the ban,
is arbitrary and irrational and hence ban all forms of tobacco within the country.
3. That the tobacco companies and the State are liable to pay compensation for causing
cancer to Mr. Prominent.
4. That the special exclusion in the insurance contract relating to tobacco use is
unconstitutional.
Or pass any other order, direction, or relief that this Hon ble Court may deem fit in the
interests of justice, equity and good conscience.
For this Act of kindness, the petitioners as is duty bound shall ever pray.
(Respectfully Submitted)
Counsels on behalf of the Petitioners

PRAYER PAGE | XIV

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TEAM CODE:

2ND NLUO-PHFI PUBLIC HEALTH LAW

THE HON’BLE SUPREME COURT OF DIANA

IN THE MATTERS OF:

~MEMORIAL ON BEHALF OF PETITIONERS~

INDEX OF AUTHORITIES----------------------------------------------------------------------------------------------------- III

STATEMENT OF JURISDICTION---------------------------------------------------------------------------------------- VIII

SUMMARY OF ARGUMENTS----------------------------------------------------------------------------------------------- XII

I. THE REGULATION OF CIGARETTES AND BAN ON E-CIGARETTES, TO PROTECT THE

A. Reasonable restriction can extend to Regulation and Prohibition----------------------1

B. Tobacco is Res Extra Commercium 3

A. Not banning cigarettes infringes Article 21 and Article 47------------------------------6

B. Cigarettes are more harmful and addictive than E-Cigarettes--------------------------7

III. MR. PROMINENT IS ENTITLED TO COMPENSATION BY STATE FOR PERMITTING THE

ACCOUNT OF HARM CAUSED DUE TO THE USE OF THEIR PRODUCTS----------------------------------- 8

A. Private bodies can be made parties to a writ petition-------------------------------------9

B. Mr. Prominent is entitled for compensation----------------------------------------------10

2ND NLUO-PHFI MOOT COURT COMPETITION, 2022 ~MEMORIAL for PETITIONERS~

B. It is settled law that relative bargaining power of contracting parties must be

2ND NLUO-PHFI MOOT COURT COMPETITION, 2022 ~MEMORIAL for PETITIONERS~

 Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34---------------------------------------17

 B. P. Sharma v Union of India, (2003) 7 SCC 309----------------------------------------------3

 Bachan Singh v State of Punjab, (1980) 2 SCC 684-------------------------------------------20

 C.E.S.C. Limited v Subhash Chandra Bose, (1992) 1 SCC 441------------------------------23

 Charan Lal Sahu v Union of India, (1990) 1 SCC 613----------------------------------------18

 Chintaman Rao v State of Madhya Pradesh, AIR 1951 SC 118-------------------------------2

 Dalmia Cement v Union of India, (1996) 10 SCC 104----------------------------------------13

 Deepak Sibal v Punjab University & Anr., 1989 AIR 903---------------------------------6, 19

 Dinesh Kumar v State of Madhya Pradesh, (2004) 8 SCC 770------------------------------18

 In re Kerala Education Bill, 1957, AIR 1958 SC 956-------------------------------------12, 13

 In Re Special Courts Bill, (1979) 1 SCC 380, 423---------------------------------------------17

 Indian express Newspaper Ltd. v Union of India, (1985) 1 SCC 641-----------------------20

 Indian Handicrafts Emporium v Union of India, (2003) 7 SCC 589--------------------------3

2ND NLUO-PHFI MOOT COURT COMPETITION, 2022 ~MEMORIAL for PETITIONERS~

 Keshavnanda Bharati v the State of Kerala, (1973) 4 SCC 225------------------------------12

 Krishnan Kakkanth v Govt. of Kerala, AIR 1997 SC 128--------------------------------------1

 Laxmi Khandsari v State of Uttar Pradesh, AIR 1981 SC 873----------------------------6, 19

 M. Jagdish Vyas v Union of India, (2010) 4 SCC 150-----------------------------------------18

 M. Nagaraj v Union of India, (2006) 8 SCC 212-----------------------------------------------17

 Maneka Gandhi v Union of India, 1978 AIR 597----------------------------------------------17

 Md. Faruk v State of Madhya Pradesh, AIR 1970 SC 93---------------------------------------3

 Minerva Mills v Union of India, AIR 1980 SC 1789--------------------------------------12, 13

 Mohd. Haneef Quareshi v State of Bihar, AIR 1958 SC 731-----------------------------------7

 Narendra Kumar v Union of India, 1960 AIR 430----------------------------------------------3

 Olga Tellis v Bombay Municipal Corporation, 1985 SCC (3) 545--------------------------13

 Pandit Parmanand Katara v Union of India, 1989 AIR 2039--------------------------------23

 R.K. Garg v Union of India, (1981) 4 SCC 676------------------------------------------------17

 Ramana Dayaram Shetty v International Airport Authority, 1979 AIR 1628----------17, 21

 Shayara Bano v Union of India, (2017) 9 SCC 1-----------------------------------------------20

 Sivani v State of Maharashtra, AIR 1995 SC 1770----------------------------------------------2

 Sreenivasa General Traders v State of Andhra Pradesh, AIR 1983 SC 1246---------------2

 State of Bombay v F. N. Balsara, 1951 AIR 318-------------------------------------------------3

2ND NLUO-PHFI MOOT COURT COMPETITION, 2022 ~MEMORIAL for PETITIONERS~

 State of Kerala v N. M. Thomas, AIR 1976 SCR (2) 762-------------------------------------13

 State of Punjab v Ram Lubhaya Bagga, (1998) 4 SCC 117---------------------------------5, 7

 State of Rajasthan v Shankar Lal Parmar, (2011)----------------------------------------------18

 State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75----------------------------------19

 Systopic Laboratories (P) Ltd. v Prem Gupta, AIR 1994 SC 205-----------------------------3

 Union of India v M.Valliappan, (1999) 6 SCC 259--------------------------------------------19

 Unni Krishnan v State of Andhra Pradesh, AIR 1993 SC 2178------------------------------12