MUHAMMAD AQIL MIRZA, J.- This Constitutional petition has been filed by the Pakistan Chest Foundation, the Pakistan Anti Tuberculosis Association and two others to see the following relief:- "lt is, therefore, respectfully prayed that it may kindly be declared that the broadcasting and telecasting of advertisements on Pakistan Radio Network and Pakistan Television promoting sale of cigarettes and sponsorship of programmes displaying commercials and banners by the cigarette companies are illegal and without lawful authority. The respondents Nos. 1 to 6 may kindly be further restrained from permitting of displaying commercials and banners by broadcasting and telecasting, as the case may be, and arranging and associating with the sponsored programmes of the Pakistan Tobacco Company, respondent No. 7, on the PBC and PTV to promote sale of cigarettes."
The case set up by the petitioners is that the Pakistan Television Corporation (PTV) is regularly advertising, different brands of cigarettes for and on behalf of the various Tobacco Companies through alluring commercials, to promote and increase the sale of cigarettes in the country.
Pakistan Broadcasting Corporation (PBC) is also broadcasting cigarette related advertisements from various Radio Stations in Pakistan. The telecasting and broadcasting of cigarette advertisements are done by the PTV and the PBC with a view to earn profits, lt- is pleaded that cigarette advertisements result in promoting cigarette smoking habit among the people of Pakistan, particularly the younger generation. Smoking does not only spoil the health of the smokers themselves but it also adversely affects the health of the non-smokers who are made to passively smoke because they perforce inhale the smoke emitted by the smokers while sitting near, them, lt is claimed that the PTV and the PBC being financed and controlled by the Government of Pakistan they cannot be permitted to conduct their business or working in such a way that it contributes towards endangering human life and, therefore, cigarette advertisement on electronic media may be banned through Court direction.
2. The writ petition has been contested by the PTV, the PBC and various tobacco companies working in Pakistan. Their case is that there is no law which prohibits advertisements of cigarettes on the electronic media, therefore, the same cannot be banned by the Court in view of the provisions of Article 4 of the Constitution, which ordains that no person can be prevented from or be hindered in doing that which is not prohibited by law. The detailed arguments submitted on behalf of the parties appear hereinafter.
3. Mr. A. Karim Malik, learned counsel for the petitioners has made the following submissions:-
(i) Cigarette smoking is dangerous to human life. According to him, it is now a universally acknowledged truth that smoking endangers human life. He has made reference to various study reports which have been placed on record, to contend that cigarette smoking helps in causing and aggravating deadly diseases like Cancer, Chronic Bronchitis, Heart ailments and Peptic Ulcer etc. He has explained that tobacco smoke contains some 200 substances including Carbon monoxide, Nicotine and Tars. Carbon monoxide results in supplying lesser quantity of Oxygen to heart with danger of causing coronary artery diseases. Tars have the potentials of causing Cancer while Nicotine causes dependence and is as addictive as Cocaine, Heroin and Morphine.
(ii) ln recognition of the hazards involved smoking has been banned in public places in more than 63 countries of the world. Every cigarette packet also contains a warning that smoking is dangerous to health but despite that alluring, tempting and suggestive commercials are shown on the PTV, which has the effect of promoting cigarette smoking habit among the people of Pakistan, particularly the younger generation, which in turn ends in causing diseases and endangering human life in Pakistan. This cigarette advertisement on PTV and the radio is made by various Tobacco Companies for the purpose of increasing sale pf cigarettes while PTV and PBC allow the impugned advertisement for earning profit for these undertakings through publicity changes. The PTV and PBC being corporations in the public sector cannot be permitted to indulge in activities threat to human life, merely for the purpose of earning profits.
(iii) The PTV and the PBC are financed and controlled by the Federal Government, they work in connection with the affairs of the Federation, and hence they are persons within the meaning of Article 199 of the Constitution, to whom appropriate direction can be issued by this Court in Constitutional jurisdiction to desist from doing anything which may have the affect of posing danger to human health.
(iv) Leamed counsel has pressed into service the provisions of Article 4 of the Constitution to contend that no action detrimental to life, liberty, body, reputation or property of any person can be taken, except in accordance with law. It is urged that smoking has detrimental effects on the 'life' and 'body' of the people and unless there is any law which may permit the advertisement of cigarette related commercials, the PTV and PBC who are government controlled enterprises in the public sector cannot be allowed to telecast/broadcast cigarette advertisements, in violation of the spirit of Article 4.
(v) Learned counsel has also placed reliance on provisions of Article 2-A which is reproduction of the Objectives Resolution, which inter alia, provides lor social justice. According to the leamed counsel, social justice means justice to the society in the cause of happiness of humanity and it inhere as that the people should have health environment for their living. It is urged that to preserve and promote the commands contained in Article 2-A, the PTV and PBC should be restrained from acting in a manner which have the effect of spoiling the health of the people by promoting habits carrying potential danger to human health.
(vi) Leamed counsel also seeks enforcement of fundamental right enshrined in Article 9 of the Constitution, which guarantees 'life'- According to the leamed counsel, commercials showing cigarette smoking are bound to end in contravention of this Constitutional guarantee. Leamed counsel has also submitted that it is duty of the State under Article 38 of the Constitution, to provide medical health which also includes health care through preventive methods. This object can be achieved if the PTV and PBC are made to stop from advertising cigarette commercials so that smoking habits, particularly among the younger generation and children may be controlled. In nutshell the submission of the leamed counsel is that on account of the dictates contained in Articles 2-A, 4, 9 and 38(d) it is not permissible for the PTV and the PBC to telecast and broadcast cigarette related advertisements and to enrich themselves at the cost of the public health. The leamed counsel has further argued that Article 18 of the Constitution does not bestow any right on the PTV and PBC to telecast and broadcast cigarette commercials which are to promote and induce cigarette smoking habits in the younger generation. Leamed counsel has placed reliance on the following case-law, in support of the various submissions made by him:-
(i) Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66).
(ii) Ms. Shehla Zia and others v. WA PD A (PLD 1994 SC 693).
(iii) Afazu Zubair v. Muhammad Idris (PLD 1978 Karachi 984).
(iv) Begum Agha Abdul Karim Shorish Kashmiri v. Government of West Pakistan (PLD 1969 Lahore 438).
(v) Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another (PLD 1977 Lahore 852).
(vi) Fatehyab Ali Khan, President Pakistan Mazdoor Kissan Party v. Pakistan Broadcasting Corporation and Pakistan Television Corporation etc. (NLR 1991 Civil 46).
(vii) Smt. Maneka Gandhi v. Union of India and another (AIR 1978 SC 597).
4. Mr. Aftab Ahmad Khan, leamed counsel appearing on behalf of the PTV has argued that no relief as prayed for can be granted under Para (1) of sub- clause (1) of the Clause (1) of Article 199 of the Constitution. It is also argued that this petition is not for the enforcement of fundamental right under sub-clause (c) of Clause (1) of the said Article, therefore, no direction can be issued for enforcement of any of the fundamental rights. In this behalf he has argued that Article 4 does not fall in Chapter 1 of Part II of the Constitution relating to the fundamental rights. He has maintained that PTV is not a person within the meaning of Article 199, because it does not perform any function in connection with the affairs of the Federation or a Province. He has further maintained that under sub-clause (c) of Clause (1) direction for enforcement of a fundamental right can be issued on the application of an aggrieved person as distinguished from an aggrieved party'. He has explained that aggrieved person can be a natural person and not an association.
4-A. Mr. Aftab Ahmad Khan has further contended that the honourable Supreme Court in Amanullah Khan and another v. Chairman, Medical Research Council and three others (1995 SCMR 202) has already found that Article 9 of the Constitution is not attracted because through cigarette advertisement there is no deprivation of life. According to the leamed counsel, the pronouncement of the Honourable Supreme Court is binding and this Court cannot take a contrary view. With regard to Article 4, learned counsel has argued that unless there is specific prohibition through law the impugned advertisements cannot be banned. He has urged that the PTV is carrying on activities in accordance with the provisions of Articles 4 and 18 of the Constitution. Learned counsel has further argued that the PTV has already toned down cigarette related commercials by cutting down the portions which could be termed as tempting or alluring. According to him the PTV has also started anti-smoking campaign which counter-balances the ill effects, if any, of cigarette commercials. Learned counsel has informed that income of Rs. 7,0000000/- per year is earned through cigarette commercials by the PTV and the same is spent in showing gather programmes of public interest, if this source of revenue earning is brought to an end the viewers will suffer for want of useful entertainment and informative programmes. He has also maintained that live telecasting of various sport events provides healthy pastime to the viewers, particularly the young and smoking as such is not shown in live telecasting of the sponsored sport programmes. Iii support of his arguments leamed counsel has placed reliance on the following case-law:-
(i) Amanullah Khan and another v. Chairman, Medical Research Council and three others (1995 SCMR 202).
(ii) Trustees of the Port of Karachi v. Muhammad Sale (1994 SCMR 2213).
(iii) Muntiznta Committee, Al-Mustafa Colony (Regd.) Karachi and three others v. Director Katchi Abadies, Sindh and five others (PLD 1992 Karachi 54).
(iv) Tanvir Iqbal Siddiqui v. The Provincial, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad. (1994 SCMR 958).
(v) M.D, Tahir v. Federation of Pakistan (PLD 1996 Lahore 658).
5. Mr. Zia-ul-Qamar Bhatti, Advocate appearing on behalf of the PBC has adopted the arguments addressed by the learned counsel for the PTV. He has, however, maintained that Radio Pakistan Broadcasts only the commentaries of the sports events and the advertisements do not in any way by words propagate or induce people to adopt smoking habit.
6. The case was mainly argued exhaustively by Mr. Sajid Zahid, Advocate assisted by Mr. Mahmood Mirza, Advocate on behalf of the Tobacco Companies. Mr. Shahzad Jahangir, Advocate also argued the case on behalf of the newly added Tobacco Company. Mr. Sajid Zahid, Advocate has made the. Following submissions:-
(i) The cultivation of tobacco, cigarette manufacturing and cigarette smoking are lawful activities, as there is no law in the field to ban these activities, therefore, the lawful business of the tobacco companies cannot be restricted because of the protection available under Article 18 of the Constitution.
(ii) The ban on tobacco advertisement will amount to put premium on the right of Tobacco Companies to do their lawful business of sale and marketing their predicts. He has further contended that the direction to ban tobacco advertisement will tantamount to curtailment of fundamental right as contained in Article 19.
(iii) The honourable Supreme Court in the earlier Human Rights case reported as 1995 SCMR 202 which had been filed for the same relief which has been claimed in the present petition had disallowed the relief by observing that no fundamental right is violated through advertisements of cigarette commercials on the television. The pronouncement aforesaid is of binding nature and this Court cannot grant the relief prayed for.
(iv) With regard to Article 4 it is argued that it is of much lower footing as it does not fall in the Chapter relating to the fundamental rights. At any rate, it is submitted that since there is no law which prohibits cigarette advertisement on the electronic media, no order can be passed for banning such an advertisement.
(v) Mr. Sajid Zahid has vehemently argued that cigarette commercials on electronic media do not create effect of inducing people to smoke, rather it gives the person who are already smokers a right to choose among the various brands of cigarettes. This right of the smokers to choose the best brand according to their taste cannot be snatched away in the absence of law ta that effect.
In support of the submission, leamed counsel has placed reliance on the following precedents
(i) Haji Ghulam Sabir v. Pan Allotment Committee and another (PLD 1967 Dacca 660).
(ii) Farhat Munawar Bajwct v. The General Manager, PTC and three others (1988 CLC 545).
(iii) National Industrial Cooperative Credit Corporation and another v. Government of Punjab (PLD 1992 Lahore 462).
(iv) B.Z. Kaikais and others v. President of Pakistan and 15 others (PLD 1980 SC 160).
(v) The State v. Zia-ur-Rehman and others'^PLD 1973 SC 49).
(vi) Sultan Textile Mills v. Muhammad Yousaf Shamsi (PLD 1972 Karachi 226).
(vii) Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901).
(viii) Amanullah Khan and another v. Chairman Medical Research Council and three others (1995 SCMR 202).
(ix) Abdul Ghafoor and another v. Mst. Iqbal Begum and another (PLD 1975 Lahore 524).
(x) Mst. Amir Bano v. S.E. Highway (PLD 1996 Lahore 592).
7. Mr. Shahzad Jahangir in addition to the arguments addressed by Mr. Sajid Zahid has maintained that this Court while issuing direction contemplated by Article 199 of the Constitution has to see that there should be a law which is infringed and only then a restraint order can be passed. He has argued that Para (a) of Sub-Article (2) of Article 4 cannot be read independently. It has to be read in conjunction with Paras (b) or (c) of this Sub-Article. He has urged that since there is no law in existence which bars either the cigarette production or cigarette advertisement, therefore, this Court has no jurisdiction to ban cigarette advertisement on electronic media. According to him, right to advertise is inherent in the right to manufacture cigarettes and to market the same. There is no law which prohibits either the manufacture or sale of cigarettes in Pakistan or any where else in the world. He has argued that the petitioners should pressures the members of the Parliament to make law providing for banning the cigarette advertisement and build up public opinion in that behalf, rather than to move petition in this Court.
8. Kh. Saeed-uz-Zafar, learned Deputy Attorney General appearing for Government of Pakistan in answer to a specific query from the Court has stated that smoking is injurious to human health as per the considered opinion of the Director General Health. He has further stated that the Federal Government is also of the view that smoking is injurious to the health of the peopled. However, he has challenged the jurisdiction of this Court to issue any direction banning cigarette commercials on the electronic media, in view of the decision of the honourable Supreme Court in the afore- mentioned Human Rights case. He has also argued that cigarette smoking may be reasonable lust and leisure for some time for a section of the people and their interest too has to be looked after by the Government in view' of the provisions of Article 38 (b) of the Constitution. In essence, he has conceded the health hazards involved in cigarette smoking but he has challenged the jurisdiction of this Court to issue appropriate writ banning cigarette advertisement on the electronic media.
9. After hearing the learned counsel for the parties I am of the view' that the following points require to be decided for proper adjudication of the controversy involved in this petition:-
(i) Whether cigarette smoking is injurious to human health and whether cigarette related advertisements on the electronic media contribute in promoting smoking habits in the people.' particularly the younger generation.
(ii) Whether the petitioners have the necessary locus standi to move the Constitutional petition for the relief prayed for.
(iii) Whether the PTV and the PBC are persons within the meaning of Article 199 of the Constitution, to whom direction can be issued to stop telecasting/broadcasting cigarette commercials.
(iv) Whether the provisions of Articles 2-A. 4. 9 and 38(d) of the Constitution can be pressed into service for issuance of direction to the PTV and PBC. To stop cigarette advertisements on the electronic media and whether such a direction requires to be issued in the circumstances of the case.
(v) Whether the freedom of trade and business of the companies to market tobacco products will be adversely affected in terms of Article 18 of the Constitution if the PTV and the PBC are restrained from telecasting and broadcasting cigarette commercials.
(vi) What is the effect of the order passed by the honourable Supreme Court in the case reported as 1995 SCMR 202 and whether this Court can grant the relief prayed for despite the said pronouncement.
10. In order to resolve the question whether smoking is hazardous to human life or not it will be profitable to reproduce hereunder the opinions of the World Health Organization and the Director General of Health Services. Government of Pakistan. The letter dated 1-3-1995 written by the Representative of WHO in Pakistan reads as under:- "It is an honour and matter of great pleasure for us to place hereunder the views of the World Health Organization before the Lahore High Court regarding the effects of smoking on human body.
It has been scientifically proven that use of tobacco, in any form: smoking, chewing or sniffing, is the leading cause of premature deaths. Ninty-Five per cent of lung cancers. 85% of chronic bronchitis and 25% of heart attacks are attributable to smoking.
Hazards of tobacco use are well-known now. Not only the smokers' life, is at risk but those of passive smokers as well. New boms, who open their eyes in the lap of smokers and their companions who unintentionally inhale that expelled much carbonized poisonous smoke also become the focus of many killing diseases. If current smoking patterns persist, over 80 percent of the World's population will be killed by tobacco.
Tobacco use is an unnecessary burden on national economy. There are about one billion smokers in the World right now and they smoke over five trillion manufactured cigarettes per year.
Only in Pakistan more than 30 billion cigarettes are manufactured in a year. It may be termed that the people of Pakistan are converting into ashes approximately an amount of more than 22.5 billion annually. This is just an estimate. Real figures may be five or even ten times higher if all factors and use of all kinds of tobacco (pipe, cigar, huaquero, chewable and sniffed tobacco) are taken into consideration. On the other hand the Government of Pakistan is facing difficulties in allocating appropriate amount of funds for Health Sector.
Information media, particularly the Television disseminate information to mass audiences. As an irony fate, in some countries of the world including Pakistan, this important information media is actively involved in allurement of teenagers to tobacco thrall. Through attractive advertisement on TV the young generation yearn for cigarette and fall in prey of smoking.
There is convincing evidence that bans on tobacco advertising will produce beneficial effects on consumption. Many examples in the developed countries now confirm the sound basis of this form of action. In countries where advertising has been totally banned for public health reasons, tobacco consumption has fallen for times as fast as in countries with more limited bans, ln countries including Pakistan where tobacco advertisement is authorized in all the media, tobacco consumption has increased, as mentioned above.
No policy of smoking prevention can be effective-while tobacco advertisement is permitted in one form or another, particularly by r Pakistan Television. Moreover, it does not seem logical to convince young people of the harmful nature of tobacco, if at the same time Pakistan Television permits unlimited or limited advertising of the same substance.
A few good reasons for supporting a tobacco advertising ban are given hereunder:- Tobacco advertising creates a positive climate of social acceptability for smoking which is against the cultural norms as well as it cause the death of many people each year e.g. 5,00.000 people in 12 countries of the European Community alone.
More than 90% of all smokers begin to smoke as teenagers, 44% of all adolescents either experiment with or regularly use tobacco products, children as young as six years have been shown to identify cigarette advertisements reliably. The failure of this generation to start smoking devastate the industry within 10 years.
A survey in the European Countries in 1992 showed that 74% of Europeans in the l2 member countries support a ban on tobacco advertising.
Data from 18 countries show that legislation banning tobacco promotion has had the effect of reducing the numbers of young people who begin smoking. The ban on tobacco advertisement in Norway, Finland, Canada and New Zealand was followed by a reduction in smoking so great that it could not reasonably be attributed to any other factor.
The principle of a tobacco advertising ban on television is already acknowledged and applied in a large number of countries e.g. In 1989, the European Community adopted Directive concerning broadcasting activities, which prohibits all forms of television advertising for tobacco products.
The Government of Pakistan resources for Health are merely 0.8% of GNP. It is impossible that life risks being spread through billions could be controlled by such a meager amount unless additional appropriate protection measures are adopted.
Therefore, the World Health Organization strongly recommend that Pakistan Television should enforce a ban on cigarette advertisement. Instead of telecasting cigarette advertisement. Pakistan Television should contain a regular campaign in its programmes against smoking."
The views of the Director General Health. Government of Pakistan are as under:- "VIEWS ON INJURIOUS EFFECTS OF SMOKING ON HUMAN HEATH: By Director General Health, Ministry of Health, Government of Pakistan.
The Health Ministry is of the view that smoking is an insidious killer. It stalks its victim painlessly and so slowly that it may be years before he notices effects of smoking. The relationship of cigarette smoking to health has been clearly demonstrated. Diseases most commonly associated with smoking are: lung cancer, bronchitis and emphysema, ischemic heart diseases, other cancers of lips, tongue, mouth, larynx, bladder, gastroduodenal ulcer.
The World Health Organization has considered smoking as the largest single preventable cause of ill health. Many research studies, throughout the world, have been carried out to find the effects of smoking on human health. Some of the findings are as following:-
(a) Smoking is responsible for increased mortality such as:- 90% of lung cancer deaths.
75% of bronchitis deaths.
24% of ischemic heart disease deaths under 65 years of age.
(b) Apart from its effect on mortality, smoking results in increased morbidity rate such as:- Babies of smokers have twice as many attacks of bronchitis and pneumonia during first year of life as compared to the babies of non-smokers.
Women who smoke 35 cigarettes or more and also use oral pills have 20 times higher myocardial infection as compared to non-smokers.
Smokers have lower level of lung function, and absenteeism is more in smokers. Smokers when sick are out of work twice as long as non-smokers.
PASSIVE SMOKING There is no doubt that the main victims of smoking are the smokers themselves but nonetheless, the non-smokers are also forced to share the health hazard. Much interest has been expressed in the past several years on involuntary or passive smoking and its effect on health. In some studies it was found that non-smoking married women with husband who smoked (20 cigarettes a day) had two to three times more lung cancer than the women with husband who never smoked. The research studies have proved that passive smokers also run the risk of getting diseases associated with smoking. This is the reason that more and more non-smokers are demanding ban on smoking in public places.
According to Pakistan Health Education Survey, 1992, there are about 22 million smokers in Pakistan.
The addiction of smoking in our country is spreading, so fast that k has taken a shape of an epidemic. The man made and self-inflicted epidemic with severe health implications arid socioeconomic consequences has posed a serious public health problem in Pakistan today.
Unrestricted advertisement of cigarettes is responsible for fast increase in the incidence of smoking in Pakistan Cigarettes are advertised in the news media as if they are short cut to success in life. Most of the cigarette ads glamorize smoking to create attraction among youths for smoking.
The cigarette manufacturers deny that their expensive promotion campaigns are aimed at youths.
But they know well that their advertising compaigns affect the youth deeply. Many surveys reveal, for example, that teenagers choose the most widely advertised cigarette brands at rates up to three times that of adult smokers. To young people, the invitation to "Come to where the test is" is a-ticket to the stunted growth and eventually to the cancer ward.
The developed countries like Canada, USA and UK have already enacted legislation against cigarettes promotion advertisements on television and radio. Countries like Norway, Romania, Singapore and Saudi Arabia have imposed total ban on all forms of cigarette promotions.
The Ministry of Health, in the past, has submitted Summaries to the Cabinet to ban all sorts of promotion of tobacco and tobacco products to safeguard the health of the nation. The Cabinet did not approve the proposal of banning of promotion of tobacco. However, the Ministry of Health is of the opinion that the glamorous advertisements by Cigarette Manufacturers certainly allure public in general and youth in particular to take the habit of smoking and the publicity compaigns of cigarettes bv the Cigarette Manufacturers are geared to recruit more and more smokers."
11. Jhon Crafton, Chairman Tobacco and Health Committee IUATLD read a paper in the Plannery Session of the Eastern Regional Conference jointly arranged by the WHO and the International Union against Cancer, which contains useful information with regard to the ill effects of tobacco and what measures should be adopted for lessening the hazards of smoking. The relevant, extracts of this paper are reproduced below :- "TOBACCO AS A CAUSE OF DISEASE Mortality. I have only time to remind you of some of the evidence regarding the major smoking- related diseases. As most of you are doctors, I shall concentrate particularly on the prospective study of British doctors. Doctors aged 35 or more were asked to record their smoking habits and were then followed up for 20 years, their mortality being related to their previously recorded smoking. For lung cancer the mortality rate for non-smokers was 10 per 100,000 per year, for those who had smoked 1-14 cigarettes a day 78, for 15-25 cigarettes daily 127, and for 25 or more cigarettes daily 251. For mortality from Chronic Bronchitis and/or emphysema (Chronic Obstructive Lung Disease) the rates were 3 per 100.000 per year for non-smokers and 51, 78 and 114 for the three ascending grades of daily smoking. For ischaemic heart disease the rate for non-smokers was 166 per 100,000 per year and 78. 358 and 427 for the three ascending grades of daily smoking. These are the th ee great killers. Fortunately a most encouraging finding was that many doctors, as a result of the early results, gave up smoking and n these mortality front the three diseases dropped rapidly. After 5-9 years the lung cancer mortality rate in those who had quit smoking was reduced to 35% of that for the continuing smokers, for ischaemic heart disease, it was almost down to the rate for life long non-smokers. For chronic bronchitis and/or emphysema, if those who quit owing to advanced disease were excluded, there was similar substantial benefit.
Morbidity. At least 10 studies (2) of the prevalence of cough and sputum have shown a close, ated dose-related, association with cigarette consumption. These include studies in Indus, Papua New Guinea. Malaysia, Egypt, the Caribbean and Australian aborigines. In some of these studies "chronic branch tis" was almost confined to smokers. For instance, in a sample survey if rural and urban populations in Britain, in males aged 55-64 the prevalence was 17.6% among heavy smokers, 13.9% in light smokers. 4.4% in ex-smokers and nil among lifetime' non-smokers. Most surveys have shown decrease in Forced Expiratory' Volume (FEV) in smokers compared to non-smokers and a steeper component of the decrease is emphysema: autopsy studies have shown a dose-related association with smoking. However, in the young, in whom functional impairment is less advanced, significant improvement can be shown after stopping smoking. Other causative factors of chronic obstructive lung disease include atmospheric pollution, which appears to have major effect in smokers, and lower respiratory- infections in infancy, which may be particularly important in Third World countries. The ill effects of smoking start in youth. Smoking school children have more cough and more chest illnesses than non- smokers and this is also true for young adults. Passive Smoking: There is steadily accumulating ev idence that inhalation of other people's smoke can cause lung cancer in non-smokers. The risk is, of course less, than that of active smoking, but the fact that there is an established risk has produced an intensive drive in North America, and increasingly in Europe and Australia, for a smoke free environment in public places, transport and at work. There is also good evidence that the children of smoking parents are more liable to respiratory infections and these can have long term ill effects.
Other effects: There is very good evidence of the great importance of chewed tobacco for cancer of mouth, a major problem in the India subcontinent, where this is one of the commonest cancer.
Both forms of tobacco may lead to cancer in the upper respiratory tract. There is good evidence for smoking causing bladder and certain other less common cancers, for delaying healing of nentic ulcer and for causing peripheral vascular disease leading to amputation. Recently there has been important new evidence of smoking as a cause of stroke: in a case control study in New Zealand there was a dose related association, with a relative risk in heavy smokers nearly 10 times than in non-smokers.
Trends in Consumption: Between 1978 and 1980 WHO calculates consumption decreased by 1.1% year in economically developed countries but increased by 2.1% year in developing countries, with grim implications for future health. Between 1970 and 1980 manufactured cigarette consumption only increased by 4% in North America, but by 32% in Kenya, 24% in Latin America, 40%in India and no less than 62% in Pakistan."
Reference may also be made here to the report on the health consequences of smoking by the Surgeon General of USA in 1990 to the Congress. With regard to the relationship of smoking and heart diseases it says:- "Cigarette smoking is firmly established as an important cause of coronary heart disease (CHD).
Arteriosclerotic peripheral vascular disease and stroke (US DHHS 1983, 1989). Eliminating smoking presents an opportunity for bringing about a major reduction in the occurrence of CHD, the leading cause of death in the United States."
With regard to lung diseases the report reads as under:- "Cigarette smoking is the major cause of chronic obstructive lung disease in the United State for both men and women. The contribution of cigarette smoking to chronic obstructive lung disease morbidity and mortality for outweighs all other factors (US DHHS 1984, P.8).
Approximately 84 percent of COPD mortality among men and 79 percent among women is attributable to cigarette smoking (US DHHS 1989). The annual tool of smoking attributable COPD in the United States is estimated to be 57.000 deaths (US DHHS 1989), which are responsible for more than 500,000 years of potential life lost before the average life expectancy (Davis and Novotny 1989)."
Regarding Cancer the report says that "compared with the risk among never smokers, the risk of lung cancer for smokers may be increased twentyfold or more for heavy smokers (US DHHS 1989).
Risk of lung cancer increases with the number of cigarettes smoked daily and the duration of cigarette smoking. Risk declines after cessation". It further says the "smoking is a cause of bladder cancer, cessation reduces risk by about 50% after only a few years, in comparison with continued smoking". A pamphlet issued by the International Union against Tuberculosis and International Union against Cancer contains the opinion of Dr. Halfdan Mahler, Director General Health, World Health Organization, which reads "Smoking is probably the largest single preventable cause of ill health in the world". This pamphlet further says:- "(1) Smoking is the major cause of LUNG CANCER, CHRONIC BRONCHITIS, HEART DISEASES (Coronary thrombosis, Ischaemic heart disease).
(2) In industrialised countries smoking is far the most important cause of preventable illness and premature death.
(3) In developing countries the smoking epidemic is spreading-encouraged by often unscrupulous advertising and promotion by multinational tobacco companies. They are looking for new markets as more and more people in developed countries stop smoking.
OTHER ILL-EFFECTS OF SMOKING ARE: Cancers of mouth, upper respiratory tract, bladder.
Diseases of blood vessels of the limbs, often leading to gangrene and amputation.
Higher risk of pneumonia and other chest diseases.
More chest illnesses in children of smoking parents."
12. The respondents have not been able to take positive stand supported by any authentic medical opinion that smoking has no adverse effect on human health. The only thing that has been canvassed on behalf of the tobacco companies is that "smoking does not actually cause major diseases like cancer, T.B., heart ailments etc. Etc., although it may aggravate these diseases already contracted by the patient". It is stated by the Pakistan Tobacco Company in the written statement, "whilst a statistical association between smoking and certain diseases has been recognized but many scientists would agree that statistical associations-do not prove smoking being the causation of the said major diseases". The stand taken by the PTV is that cigarette smoking is hazardous to human health and in recognition thereof in this various programmes the ill effects of cigarette smoking are highlighted. It is admitted in the written statement, "it may, however, be pointed out that respondent No. 3 is not unaware of the hazards of cigarette smoking, that is why. Whilst showing cigarette advertisements it follows the steps mentioned in para l2 on merits and (c) above". It is also stated in the written statement that "it may, however, be pointed out that respondent No. 3 from time to time shows programmes in which it highlights the hazards associated with tobacco and cigarette smoking". In this behalf it is stated that all cigarette advertisements are followed by warning that "Smoking is injurious for health". In the comments offered by Ministry of Health all averments imputing health hazards involved in smoking and propagation thereof through advertisement on the electronic media have been admitted as correct. With regard to displaying the warning after showing cigarette commercial it is stated "The Ministry of Health is not satisfied by the display of health warning followed by cigarette adds". It has been further agreed that promotion and sponsorship of cigarette sales through advertisements on radio and the PTV are against the public interest and social welfare of the people. As already mentioned, the leamed Deputy Attorney General frankly conceded that admitted position of the Government of Pakistan is that smoking is injurious to human health.
13. The report of the Director General Health Services of Government of Pakistan, the report of the Surgeon General of USA submitted to the Congress, the WHO report and the extracts from the research papers clearly show that it is now scientifically proven and universally acknowledged fact that smoking has adverse effect in causing/aggravating deadly diseases like Cancer, Chronic Bronchitis, Heart ailments, emphysema, ischaemic heart diseases, other cancers of lips, tongue, mouth, larynx, bladder, gastroduodenal ulcer etc. Judicial notice can also be taken of the fact that patients suffering from the major diseases like heart ailments, T.B., Cancer, and Ulcers are strictly advised by the doctors to refrain from smoking. This medical advice is rendered because every doctor through out the world is now of the opinion that smoking is injurious to these killing diseases.
14. Leamed counsel for the tobacco companies have also conceded to the extent that there is a statistical association between smoking and aforesaid deadly diseases. Case of the tobacco companies is that smoking aggravates these diseases but it does not cause them. But there is independent and universally acknowledged expert opinion that smoking actually causes some of the afore-mentioned deadly diseases. Jhon Crafton in his paper reproduced above says that smoking may cause caner in the upper respiratory tract. He further on says, "there is good evidence for smoking causing bladder and certain other less common cancers, for delaying healing of peptic ulcer and for causing peripheral vascular disease leading to amputation.
Recently there has been important new evidence of smoking its a cause of stroke". Similarly the report of the Surgeon General of USA says that "cigarette smoking is firmly established as an important cause of coronary heart disease (CHD): arteriosclerotic peripheral vascular disease and the stroke". It further says "cigarette smoking is the major cause of chronic obstructive lung disease in the United States". It also says that smoking is a cause of bladder cancer. The position that emerges, therefore, is that smoking not only aggravates deadly diseases like lung cancer, chronic bronchitis, heart ailments, emphysema, ischaemic heart diseases, other cancers of lips, tongue, mouth, larynx, bladder, and gastroduodenal ulcer etc. But it also causes lung cancer, bladder cancer, peripheral vascular disease and the heart stroke. In the presence of independent and universal authentic expert opinion the tobacco companies cannot be heard to say that tobacco smoking does not cause any disease. Be that as it may, their own case is that cigarette smoking aggravates the said diseases. The obvious result is that cigarette smoking is harmful to health and it endangers human life.
15. This now brings me to the other part of the question, whether cigarette advertisements on the electronic media has the effect of propagating and promoting smoking habit among the people, particularly the younger generation. If it is established that these ads induce the teenagers to adopt and fall prey to the smoking habit, then it can be said that cigarette advertisements also contribute towards endangering human health and for that reason proper direction can be issued to the electronic media to stop cigarette advertisements.
16. The report of the World Health Organization indicates that information media, particularly the television in some countries of the world including Pakistan is actively involved in allurement of teenagers to tobacco thrall. This report says, "through attractive advertisement on TV the young generation yearn for a cigarette and fall in prey of smoking". It further says that "there is convincing evidence that bans on tobacco advertising will produce beneficial effect on consumption. In many countries where advertising is totally banned for public health reason, tobacco consumption has fallen for times as fast as in countries with more limited ban. As against that in countries including Pakistan where tobacco advertisement is not banned tobacco consumption has increased." In the opinion of WHO, no policy of smoking prevention can be effective while tobacco advertisement is permissible in one form or the other by Pakistan Television, ln support of the ban of tobacco advertising the WHO has enumerated cogent reasons which are:-
(i) Tobacco advertising creates positive climate of social acceptability for smoking.
(ii) More than 90% of the smokers begin to smoke as teenagers.
(iii) Data from 18 countries show that ban on tobacco promotion has the effect of reducing the numbers of young people who begin smoking.
(iv) The principle of tobacco advertisement ban on television is already acknowledged and applied in a large number of countries e.g., in 1989 the European Community adopted Directive concerning broadcasting activities which prohibit all forms of television advertising.
(v) The WHO strongly recommends that PTV should enforce a ban on cigarette advertisements. .
The Director General Health, Government of Pakistan is of the opinion that "unrestricted advertisements of cigarettes is responsible for fast increase in the incidence of smoking in Pakistan. Cigarettes are advertised in the news media as if they are short cut to: success in life.
Most of the cigarette ads glamorize smoking to create attraction among youths for smoking" . The Ministry of Health is of the opinion "that the glamorous advertisements by cigarette manufacturers certainly allure public in general and youth in particular to take the habit of smoking and the publicity compaigns of cigarettes by the cigarette manufacturers are geared to recruit more and more smokers". The WHO is also of the opinion that in developing countries the smoking epidemic is spreading encouraged by often unscrupulous advertising and promotion by multinational tobacco companies who are looking for new markets as more and more people in developed countries stop smoking.
17. In countries like Canada, USA, UK, Norway, Romanya, Singapore and Saudi Arabia cigarette promotion advertisements on the television and the radio are banned. Our Ministry of Health also recommended legislation to ban cigarette advertisements on electronic media but this proposal, however, was not approved by the Cabinet previously but very recently the Federal Government has prohibited smoking in public places and -offices. The Chairman of Tobacco and Health Committee IUATLD has indicated in his paper that in the developing countries the increase in smoking habit is alarming. In India it has increased by 40% during last one decade but in Pakistan it has increased by 62%. It may be observed that the social pattern in India and Pakistan is largely the same. The enormous increase of 62 % in tobacco consumption in Pakistan is most likely due to the fact that cigarette advertisements are extensively shown on our electronic media while in India such advertisements are not permitted. The PTV earns 70 million rupees a year by showing cigarette commercials and the effect thereof is that cigarette consumption in Pakistan has increased by 62% in one decade. Leamed counsel for respondent No. 7 has drawn my attention to some reports which say that m some socially advanced countries where there is ban on cigarette advertisement the production of cigarettes has increased while in some countries where there is no such ban the cigarette production has decreased. Without in any way going into the question whether such reports are correct or not the examples of economically advanced countries cannot be accepted to disprove the rule. The social, educational and economic conditions of these countries are .'different from the under-developed countries like Pakistan. In those countries large amount is spent on health care including health education programmes but in Pakistan where only 0.8% of GNP is spent on health no health education is imparted to the people. The reason for increase or decrease of cigarette production in those developed countries may be entirely different and the same cannot be applied to a country like Pakistan. We have definite information with regard to Pakistan that in 10 years cigarette production has increased by 62 %. The cigarettes commercials as they appear 0n the PTV are glamorous enough to tempt the teenagers to fall prey to smoking. Much has been said that these commercials are followed by warning that smoking is dangerous to health. Suffice to say that glamour of the ads is too attractive to admit of warning by words. Moreover, literacy is very low in Pakistan. People are not well-educated. A large number of our population, particularly in the remote rural areas are not capable of even understanding the word * Muzr-e-Sehat! They are tempted by the visual glamour of the TV advertisement. Let me here give example of one advertisement which is not alluring or tempting in the sense that a lady may feel attracted by a man smoking cigarette. I am referring to an advertisement of a different kind. A man climbs up to most difficult peak of the world, K.2 by dint of smoking cigarette of K.2 Brand. For a simple young man there is a message "be brave and manly by smoking cigarette of K.2 Brand" .
18 In view of the above discussion, 1 am of the considered view that cigarette advertisement on the electronic media has the effect of promoting/inducing smoking habit in the people, particularly among the younger generation and it also results in endangering human health.
19. Let me now deal with the preliminary-objection relating to the locus standi of the petitioners to move this Constitutional petition. Mr. Aftab Ahmad Khan has submitted that the relief for enforcement of fundamental rights under Sub- Article (l)(c) can be sought by an aggrieved person as distinguished from an aggrieved party. According to the learned counsel, relief under Sub-Article (l)(c) can be sought by an aggrieved party but under Para (c) the application for enforcement of fundamental rights has to be made by an aggrieved person. According to him, aggrieved person means a natural person as distinct from a juristic person. Leamed counsel for respondent No. 7 has also challenged the locus standi of the petitioners by taking the objection that the petitioners cannot be termed as aggrieved party because no personal injury has been suffered by them. Petitioner No. 1 is the Pakistan Chest Foundation which is registered under the Societies Registration Act, 1807. Petitioner No. 3 is Pakistan Anti-Tuberculosis Association which is also a registered body which is recognised by Government of Pakistan and finds mention in Rules of Business, 1973 vide Item No. 9 of Health Division. Petitioner No. 2 is the former Professor of K.E.
Medical College, Lahore and is Chairman of petitioner No. 1. Petitioner No. 4 is a private individual.
The purpose for which this petition has been moved is essentially of great public interest. Cigarette smoking has been claimed to be an important factor in causing and aggravating deadly diseases.
Petitioners Nos. 1 and 3 are the Societies which have been formed with the aims and objects of promoting public awareness among the people against deadly diseases like T.B. And Cancer and to propagate ways and means to prevent these diseases. Petitioners Nos. 2 and 4 have claimed that in their individual capacity they also suffer the ill effects of smoking because they are made the passive smokers against their will and volition and they too are subjected to cigarette smoking hazards. Clearly, this is public interest litigation.
20. The question of locus standi in public interest litigation came up for discussion in the Fertilizer Corporation, Kamagar Union (Regd.) v. Union of India ( AIR 1981 SC 334). It was observed by the leamed Supreme Court of India that an organization which has special interest in the subject- matter will have the locus standi to approach the Court. Observations of R. Karishna Iyer, J are reproduced below:- "If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the Court will not be ajar for him. But he belongs to an organisation which has special interest in the subject- matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 266."
The same leamed Judge in another case (AIR 1981 SC 2981 observed "Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad based and people oriented, and envisions access to justice through 'class actions', public interest litigation' and representative proceedings'. Indeed little Indian in large numbers seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigation, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action1 and person aggrieved' and individual litigation is becoming obsolescent I some jurisdictions." The Indian Supreme Court in the case of People's Union for Democratic Rights and others v. Union of India and others (AIR 1982 SC 1473).Held as under:- "Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of property, disability or socially or economically disadvantaged position are unable to approach the Court and the Court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the Court to such legal injury or legal wrong. Court would cast aside all technical rales of procedure and entertain the letter as a writ petition on the judicial side and take action upon it."
In Ms. Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), it was observed by the honourable Chief Justice Muhammad Haleem as follows:- "In this context the question arises either apart from the non incorporation of the sub-Articles (l)(a) and (l)(c) of Article 199, the rigid notion of an "aggrieved person" is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rale of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which only the person wronged can initiate proceedings of a judicial nature for redress against the wrong-doer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rale of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interest. This is destructive of the rale of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of Constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach- should not be ceremonious observance of the rules or usages of interpretation but regard should be had to the object and the purpose for which this Article is enacted, that is this interpretative approach must receive inspiration from the tried of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2- A), the Fundamental Rights and the directive principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam."
Syed Haider Ali Pirzada, J. Of Karachi High Court in Muntizma Committee. Al- Mustafa Colony (Regd.) v. Director Katchi Abadies, Sindh (PLD 1992 Karachi 54) held that, "a public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt. This principle will not apply where an association or organization or a registered body seeks to enforce a personal right or private right of another as distinguished from public injury". Sharif Hussain Bokhari, J. In the case of M.D. Tahir v. Federation of Pakistan (PLD 1996 Lahore 658) held that a citizen of the country cannot be treated as a aggrieved person for the purpose of Article 199 (l)(a) of-the Constitution to seek a direction from the High Court in the nature of a writ of mandamus that the President or the Prime Minister should be called to refer the matter to the referendum of the people, merely because as a citizen he does not like Parliamentary System.
21. I have given anxious consideration to the question of locus standi for moving the High Court under Article 199 of the Constitution. There is no manner of doubt that when the subject-matter of a Constitutional petition seeking relief under Sub-Article (l)(a) of Article 199 relates to individual rights, whether personal or proprietary rights, then the person/persons who can competently move the High Court should be adversely affected by some action or non-action of the State functionaries. In other words, a third party cannot-be allowed to maintain an action pertaining to an individual wrong or injury. This principle is equally applicable in the case of an association or a society to enforce personal or private rights of others as distinguished from public injury.
22. However, public interest litigation has to be dealt with differently. This belongs to that species of litigation which is initiated in the public interest for the benefit of a large section of the society, with a view to secure their guaranteed rights or to save them from State excesses. This type of litigation can be initiated by a public spirited individual who may feel hurt by the wrong done to him and others or it-may as well be initiated by or on behalf of voluntary organizations or associations which have dedicated themselves to work for and protected the rights of the people in particular field. Such persons; bodies or associations cannot be termed as unconnected person with the causes involved in the lis. They are very much the 'aggrieved party' or 'aggrieved person' within the meaning of Article 199 of the Constitution. In the present case petitioners Nos. 1 and 3 are Ae registered societies whose functions, aims and objects are to work for the health of the people by actively engaging themselves in creating awareness among the masses against diseases and to propagate methods by which diseases and ailments can be prevented by taking precaution.
Petitioner No. 2 in his individual capacity has also been doing laudable service in working for people's health. It cannot be said that such associations or individuals do not feel aggrieved or feel concerned when any action or inaction on the part of the functionaries of the State or Public Sector Organizations/enterprises, has the effect of endangering human health. Any wrongdoing or invasion of public rights, against the aims and objects of such societies does clothe them with the necessary locus standi to move the Courts of law, including a High Court under Article 199 of the Constitution. In matters relating to public interest' litigation more liberal meaning shall have to be assigned to the words 'aggrieved party' or 'aggrieved person' as occurring in Article 199 of the Constitution. As observed by the honourable Supreme Court in the case of Miss Benazir Bhutto (supra), the restricted meaning of these words would be destructive of the rule of law which is enshrined in Article 4 of the Constitution which gives protection to all citizens. In the words of honourable Chief Justice Muhammad Haleem, "the inquiry into law and life cannot, in my opinion be confined to the narrow limits of the rule of law in the context of Constitutionalism which makes a greater demand of judicial functions ".
23. Under the old/orthodox view the Courts were more concerned to administer justice in the lis that was brought by individuals regarding their mutual rights and liabilities. But under the Constitution of Pakistan the function, the duty and jurisdiction of the superior Courts have undergone a radical change, which demands of the Judges of the superior Courts to exercise jurisdiction in the larger spectrum. Every Judge of the superior Court before entering upon his office has to take oath under Articles 178 and 179 of the Constitution, inter alia, to the following effect:- "that I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan."
The Objectives Resolution incorporated through Article 2-A, the charter of due process of law as contained in Article .4, the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam are the most important features of our Constitution, which concern the superior judiciary for the purpose of performance of its duties under the Constitution. Therefore, if a bona fide petition is moved on behalf of an individual or a society or an NGO for the purpose of securing the. Rights of the people as contemplated under the Constitution, then such a person/society/NGQ acts as a friend of the Court by helping it to discharge the oath of office. Such a petitioner has not to be shunned, but he has to be encouraged and the grievance highlighted by him has to be properly attended to by the Court. The jurisdiction of the High Court under Article 199 of the Constitution must be liberally exercised by modifying the old procedural rules, in the public interest. In appropriate cases of public interest, the Courts quite often enter upon new area, called the judicial activism' by exercising investigative jurisdiction' which by technical standards was totally prohibited previously.
This is being done now, because Judges feel that to preserve and protect and defend the Constitution is their bounden duty for performance of which they have taken oath. That is why.
Judges of the superior Courts sometimes act suo motu by reading the newspapers, receiving letters or telegrams. Why. Then, a petition moved by a society/person who feels duly concerned about a public injustice highlighted in the petition be not entertained and adjudicated upon. It is, therefore, evident that a public interest litigation can oe initiated and maintained by a public spirited person or body of persons with regard to public injury, though such a person or body of persons may not seemingly have been personally hurt by a public injury. Applying the above tests to the facts of the present case, it is found that petitioners have the necessary locus standi to move the Court for the relief claimed in this petition and they are aggrieved party and aggrieved person within the meaning of Article 199 of the Constitution.
24. Notice may be taken of the argument of Mr. Aftab Ahmad Khan, learned counsel of PTV that aggrieved person as occurring in Sub-Article (1)(c) has to be construed to mean that only a natural person can move the Court for enforcement of fundamental rights. I am afraid, this construction cannot be accepted. Sub-Article (2) of Article 199 provides that "Subject to the Constitution, the right to move a High Court for the enforcement of any of the fundamental rights conferred by Chapter I of Part 2 shall not be abridged". It means that on technical grounds the right to move the Court cannot be restricted. Fundamental rights stand on a higher pedestal than other legal rights of the citizens. The State has been prevented from enacting any law inconsistent with the fundamental rights and to the extent of inconsistency such law is void. The actions and non- actions inconsistent with the fundamental rights also require to be declared void and illegal.
Petitions lor enforcement of fundamental rights have, therefore, to be entertained more liberally, because enforcement of a fundamental right is the duty of Court itself, ln this view of the matter, the right to move the Court for enforcement of fundamental rights cannot be restricted to natural persons only. All persons whether natural or juristic are equally competent to move the High curt with a view to seek appropriate relief from the High Court. There is yet another angle of this proposition. Admittedly, a juristic person, say a body corporate is competent to hold and own property. Suppose such a juristic person is deprived of its property rights without compensation or against law by functionaries of the State, in violation of Article 24 of the Constitution, then can it be said that such a juristic person cannot maintain petition under Article 199 for enforcement of fundamental right enshrined in Article 24. Answer is obviously in the negative The word 'aggrieved person' as occurring in Sub-Article (l)(a), has to be construed more liberally than the-word aggrieved party' occurring in Article 199 (l)(a), so as to include both natural and juristic persons.
25. The other question as to whether the PTV and the PBC are persons within the meaning of Article 199 of the Constitution, to whom direction can be issued has been elaborately dealt with by a Full Bench of the Court in Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another (PLD 1977 Lahore 852). The Full Bench comprised of eminent Judges, Aslam Riaz Hussain, Karam Elahi Chohan and Dr. Nasim Hassan Shah, who all of them later adorned the Supreme Court.
Aslam Riaz Hussain, CJ. Who wrote the leading judgment found that the PBC and the PTV are public services and they are controlled and run under the directions of the Government. The relevant observations of his lordship is reproduced below:- "It is also noteworthy that clause (0, Section 19(1) and sub-section (2) of Section 10 of the Pakistan Broadcasting Corporations Act (XXXII of 1973) and Article III (3) of the Memorandum of Association of the Pakistan Television Corporation Ltd. Read with the provisions of Wireless Telegraphy Act, 1933 show beyond doubt that both the Corporations are being controlled and run under the directions of the Government. In this connection it is also pertinent to refer to Article 159 of the Constitution, This Article, read with items Nos. 7 and 31 of the Federal Legislative List, provides that broadcasting and telecasting are Federal subjects. Article 253 (1) of the Constitution provides that the Government can take over and run any such Corporation. The respondent-Corporations are clearly public services and, as shown above, they are being controlled and administered by the Government."
Karam Elahi Chohan, J. After exhaustive discussion found that PTV is a person performing functions in connection with the affairs of the Federation. The relevant discussion is as under:- "All this will make clear that establishment, maintenance, use and working of television network (which according to me is included in the words 'telegraph' and 'Wireless communication' is the sovereign and exclusive privilege, power and function of the Federal Government i.e. The State and the Pakistan Television Corporation is only an agent of the State or- conversely the Federal Government being its major share-holder is itself performing these functions in the form of getting itself incorporated along with other shareholders in the form of a Corporation. In other words, the functions entrusted to or performed by the Pakistan Television Corporation, are function of State involving exercise of same sovereign and public power. That the Corporation is an agent of the Federal Government this further clear from the Memorandum/Articles of Association of the Corporation itself which undertake the control of the Federal Government and an obligation to follow their instructions. The Television Corporation when it performs the aforesaid functions, actually performs them in connection with the affairs of the Federal Government or as its agent, licensee, or a delegate, because, the grant of a licence will not to away the sole privilege and power of that Government as indicated in Section 4 of the Telegraph Act whereby broadcasting and telecasting is the sole and monopoly functions of the Federal Government. The mere fact that Pakistan Television Corporation is a limited company registered under the Companies Act, therefore, does not detract anything from the nature of its status vis-a-vis its functions."
With regard to PBC the conclusion of his lordship is that "the detailed Study made above leaves no room for that Pakistan Broadcasting Corporation is a person performing functions in connection with the affairs of the Federation"". The judgment in the case of Muhammad Aslam Saleemi (supra) has been followed by a leamed Division Bench of the Karachi High Court in Fateyab AH Khan, President Pakistan Mazdoor Kissan Party v. Pakistan Broadcasting Corporation and Pakistan Television Corporation etc. (NLR 1991 Civil 46). Amal Mian, CJ. Issued direction to PTV "that while telecasting or televising any news item or programme it should not project the view point of any one of the contesting political parties/candidates and should not telecast any news item relating to any public engagement of sitting Chief Ministers or Ministers who are contesting elections for National or Provincial Assemblies, which may directly or indirectly project them as suitable candidate". At this stage it will be pertinent to make reference to the observation of his lordship with regard to Article 4 of the Constitution. His lordship observed as under:- "The respondents Corporation being public functionaries are expected to act in fair, just and equitable manner and to treat all alike as enjoined by Article 4 of the Constitution".
Respectfully following the dicta laid down in the cases of Muhammad Asoam Saleemi (supra), and Fatehyab Ali Khan (supra) I hold that the Pakistan Television Corporation and the Pakistan Broadcasting Corporation are persons within the meaning of Article 199. To whom appropriate directions under the Constitutional jurisdiction can be issued.
26. This brings me to the most important aspect of the case, namely, cigarette advertisement on electronic media is violative of what provisions of the' Constitution, and whether a High Court can grant appropriate relief under Article 199 for violation of Constitutional provisions. Leamed counsel for the petitioners in this behalf has submitted that provisions of Articles 2-A. 4? 9 article 38(d) are violated. His submission is that Article 2-A requires social justice which means that the people should have healthy environments for their living so that they may live in happiness and free from danger of diseases. Similarly, Article 4 is said to be contravened because no action detrimental to life or body can be taken without there being a specific law authorising the advertisement on TV and radio. Protection to life guaranteed under Article 9 is also said to be isolated because life means human living without potential health hazards. The directive contained in clause (d) of Article 38 which provides for health care to the citizens is also said to be contravened. Learned counsel for the respondents have contested the position taken by the leamed counsel for the petitioners.
27. In order to appreciate the various points urged with regard to the proposition in hand, it will be profitable to examine the provisions of Articles 2-A, 4. 5. 9, 18, 19 and 199 of the Constitution, which have been relied during the course of arguments. These are reproduced below:- "Article 2-A: The Objectives Resolution to form part of substantive provisions.
The principles and provisions set out in the Objective Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."
The portion of the Objectives Resolution, which is relevant for the purpose of this case is as follows:- "Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality".
"Article 4: (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation or property of and person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require to do."
"Article 5: (1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan."
"Article 9: No person shall be deprived of life or liberty save in accordance with law."
"Article 18: Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business Provided that nothing in this Article shall prevent-
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
"Article 19: Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by Saw in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, (commission of) or incitement to an offence "
"Article 199: (1) Subject to the Constitution, a High Court may. If it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party make an order-
(i) Directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order-
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such direction to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
(3) An order shall not be made under clause (1) on application made by or tn relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
(4) Where--
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessm ent or collection of public revenues, the Court shall at make an interim order unless the prescribed law office has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order-
(i) would not have such effect as aforesaid; or
(ii) would have the effect to suspending an order or proceeding which on the face of the record is without jurisdiction.
(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect to any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, so is connected with, State property or assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the case is .Finally decided, or the interim order is withdraw by the Court earlier.
(4B) Every case in which, on an application under cause (1) the High Court has made an interim order shall be disposed of by the High Court on merits within six months from the day on which it is made, unless the High Court is prevented from doing so for sufficient cause to be recorded.
(5) In this Article, unless the context otherwise requires,- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means-
(a) in relation to an application effecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate General for the Province in which the application is made."
28. Taking the point of jurisdiction first, the power of the Court to issue direction to a person performing functions in connection with the affairs of the Federation or a Province or a local authority to refrain from doing anything hie is not permitted by law to do, or to do anything he is required by law to do and for making declaration that any act done or proceedings taken are without lawful authority and of no legal affect, flows from Article 199. An order giving appropriate direction for enforcement of fundamental rights can also be made. Similarly, directions in the nature of habeas corpus or quo warranto can also be issued.
29. What are the meanings of law' as'this word occurs in Sub-Article (1)(a)(i) of Article 199 which empowers the Court for making directions to refrain from anything which is not permitted by law to do or to do anything which is required by law to be done. Does 'law' include the provisions of the Constitution as well or does it merely mean the statutory enactments. If the answer is that the law' also includes the Constitution, then of course, it can be validly said that in case of violation of Constitutional commands by the State or its functionaries appropriate directions under Article 199 of the Constitution can be issued. In other words can the jurisdiction under Article 199 of the Constitution be exercised by a High Court in case of infringement of a Constitutional provision which creates right and casts duty. More specifically, the question will be, can this Court issue appropriate direction to the PTV or PBC if it conies to the conclusion that Constitutional commands contained in Sub-Article (2)(a) of Article 4 have been contravened. This specific question eminently arises in this case because the star argument of the learned counsel for the petitioner is, that to justify an action detrimental to the life and body of the people there must contemporaneously exist a law giving sanction for such an action. If there is no law in existence, then no action detrimental to the life, liberty, body, reputation or property of any person can be taken. Accordingly, it was urged that since there is no law which permits advertisement of cigarettes on TV/Radio the same cannot be made because the impugned advertisements create effects which are detrimental to the life and body of the people, inasmuch as cigarette smoking endangers human life.
30. The above question with reference to Article 4 of the Constitution was considered by the honourable Supreme Court in Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66). Salahuddin Ahmad, J. Observed as follows:- " Pakistan is based on the Rule of law, which is embodied in Article 4 of the Constitution. The same position is reflected in some of the Fundamental Rights enshrined in the Constitution. The Constitution is framed to be followed. It creates no right and imposes no duty in vain. Article 5 of the Constitution specifically provides that obedience to the Constitution and law is the basic obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The commandment is clear and unambiguous, and nobody can get away from or be relieved of this obligation under any circumstances. "
His lordship further observed:- " Ubi jus ibi remedium is another principle of interpretation that applies to the Constitution.
Assuming that no remedy meets the eye, it becomes the duty of the Legislature to provide for the remedy and made it apparent. Remedy or no remedy, the 'will' of the Constitution reigns supreme, and nobody can be permitted to flout the 'will'. So far as a superior Court is concerned whenever and wherever it comes across anything done in violation of the provisions of the Constitution, it must be fare such thing as void. Such a declaration cannot be in vain, for it is hardly in the interests of any Government to countenance illegality. Any omission to comply with the Constitution can also in suitable cases be remedied by a High Court under- Article 199 of the Constitution.
Some of the principles governing the interpretation of a written Constitution, relied upon by his lordship are as under:- "A written Constitution is not only she direct and basic expression of the sovereign will, it is also the absolute rule of action and decision for all departments and officers of Government with respect to all matters covered by it, and must controlling it is written until it is charged by the authority which established it. No function of Government can be discharged in disregard of or a opposition to the fundamental law."
"Modem State Constitutions have been generally drafted upon a different principle and have often become, in effect, extensive codes of laws intended to operate directly upon the people is a manner similar to that of statutory enactments. Accordingly the presumptions now is that all provision of the Constitution are self-executing. As in the case ,of the question whether a Constitutional provision is mandatory or directory, the Courts may be influenced interpreting such provisions as self-executing rather than as requiring legislation by the knowledge that if not treated as self-executing, the legislature would have the power to ignore and practically nullify the directions of the fundamental law."
"Constitutional provisions should never be construed as dependent for their efficacy and operation upon legislative will."
"If a Constitutional provision is complete in itself, it executes itself. (State ex. Rel. Miller v. Toberman, 360 Mo 1101, 232 SW 2d 904).
"The mere fact that legislation may I supplement and add to, or prescribe a penalty for the violation of, a sel-executing provision of a Constitution does not render such a provision ineffective in the absence of such legislation."
"The omission from a Constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The maxim 'tibi jus ibi remedium' (where there is a right there is a remedy) is as old as the law uself Accordingly, if has been decided that if a State Constitution declares that a liability shall exist in certain specified, circumstances, an action may be maintained to enforce such liability, notwithstanding the non- existence of any legislation upon the subject. This is based upon the principle that if there is no statute especially adapted to enforce a Constitutional right, it enforces itself by its own inherent potency."
"Prohibitory provisions in a Constitution are usually self executing to the extent that anything done in violation of them is void."
Repelling the contention that Article 4 is not self-executory, and hence, no writ can be issued for violation thereof, his lordship held as under:- "It has been contended in this context that there is no remedy provided by the Constitution, to enforce the rights and obligations mentioned in Article 4. The contention is misconceived. In the first place, the injunctions contained in Article 4(2) are not only mandatory but they are also clothed in prohibitory language which indicate that the provisions are self-executing and no legislation is necessary to give effect to them. The rules of interpretation of a written Constitution as reproduced above support this view. Apart from the question of any machinery to enforce the right or .Obligation, as I have said earlier, nobody is relieved of the obligation to comply with them. In the second place, I am unable to conceive that a right or obligation so clearly and solemnly given or put can be without a content, meaning or purpose. Unless, therefore, on an examination of the Constitution l am led to the inevitable conclusion that the Courts are powerless to enforce the inalienable right or the obligation mentioned in Article 4, I am of the opinion that the Courts are bound to give the Article a meaning and a purpose. I have, however, already noticed that Article 199 of the Constitution gives indeed wide powers to a High Court to act for the enforcement of the rights and obligations mentioned in Article 4 of the Constitution."
In the precedent case Justice Anwar-ul-Haq also came to the same conclusion that violations of Article 4 can be remedied by the High Court under Article 199. His lordship's observations are:- "While Article 4 embodies provisions of the utmost importance that the individual in the matter of his life, liberty, body, reputation and property is right to freedom of action and immunity from illegal restraint of any kind yet it does not form Part II of the Constitution containing fundamental rights and, for that reason, any violation of this Article would not bring the case within the for comers of the' jurisdiction conferred on the Supreme Court by clause (3) of Article 184 of the Constitution. That jurisdiction has reference only to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution. Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution, would be fully competent to deal with a case involving a violation of the provisions of Article 4 of- the Constitution."
Article 9 of the Constitution, forming part of the Chapter on Fundamental Rights, is narrower in scope than Article 4 of the Constitution, as it deals only with the security of person, as opposed to many other matters dealt with in Article 4; yet, in content, as regards the subject with which it deals, Tt carries the same meaning and substance. "
31. It follows from the above discussion that violations of the provisions of Article 4 are subject to judicial review in writ jurisdiction and the High Court can remedy the wrong by issuing appropriate declarations and directions.
32. There is yet another reason why the provisions contained in Article 4 of the Constitution should be held mandatory so that violations thereof can be directed to be corrected by the Court, in writ jurisdiction. The principles of policy as stated in Chapter 2 of Part II of the Constitution contain many directives but Article 30 of the Constitution provides that validity of an action or of a law is not to be questioned on the ground; that it runs counter to the principles of policy. While there is an express provision provided relating to the principles of policy there is no such provision in respect of Article 4 of the Constitution. A leamed Full Bench of the Karachi High Court in Sharaf Faridi v.
Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404) held that direction under Article 199 of the Constitution can be issued to the Government to give effect to the provisions of Sub- Article (3) of Article 175 for separation of the Judiciary from the Executive. The exercise of power under Article 199 was justified on the following reasoning by the Chief Justice Amal Mian, as his lordship then was:- "It will not be out of context mention that under Chapter 2 of the Part II of the Constitution certain provisions have been incorporated under the caption 'Principles of Policy'. Clause (2) of Article 30 of the above Chapter provides the validity of action or law shall not be called in question on the ground that it is not in accordance with the Principles of Policy and no action can lie against the State, any organ ~>i authority of the State or any person on such ground. From the above clause it is evident that framers of the Constitution provided expressly that in respect of certain provisions relating to the Principles of Policy no action will lie but there is no such provision in respect of Article 175 or Article 203."
The same reasoning is equally applicable in the circumstances of the present case. It may be noted that there is no express provision in the Constitution that validity of an action or of law cannot be called in question on the ground that it is not in accordance with Sub-Article (2)(a) of Article 4. If the framers of the Constitution had intended that the Court cannot go into validity of any action or law on the touch-stone of Sub-Article (2)(a) ibid, then they would have expressly provided so, as has been done under Clause (2) of Article 30 in respect of Principles of Policy. In the absence of any such express provision the conclusion is obvious, that a High Court under Article 199 of the Constitution can exercise its jurisdiction in respect of the violation of the provisions of Article 4.
33. The upshot of the above .Discussion in that jurisdiction under Article 199 of the Constitution can be exercised by a High Court under Sub-Article (l)(a) not only in cases of infringement of statutory provisions but also in cases where the Constitutional provisions are found to have been contravened. An infringement of the provisions of Article 4, particularly ub-Article (2)(a) thereof does call for interference by a High Court under writ jurisdiction by appropriate declarations or issuance of such a direction as may be justified in the circumstances of the case.
34. Article 5 of the Constitution imposes inviolable obligation on every citizen to obey the Constitution and the law. This Article reads as under:- "Article 5: (1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan".
It is clear from the above-referred provisions of Article 5 that if a citizen which will include a person performing functions in connection with the affairs of the State does not obey the Constitutional commends, then he is not performing his obligation imposed by the Constitution. The Court in such circumstances can always oblige the delinquent person to perform his duty under the Constitution and to follow the dictates of the Constitution through appropriate directions under Article 199 of the Constitution. Needless to observe that judiciary is to act as a watch-dog and sentinel of the rights and obligations of the people and the oath of office taken by the Judges of the superior Courts casts duty on them to be ever prompt in giving appropriate relief with a view to safeguard public rights or oblige the delinquent ones to perform their duties and obligations.
35 Notice at this stage may also be taken of the contention raised by Mr. Shahzad Jahangir, Advocate that para (a) of clause (2) of Article 4 which reads "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law", is not an independent provision but it shall have to be read with paras (b) and (c) which are to the following effect:- "(b) No person shall be prevented or be hindered in doing that which is not prohibited by law, and
(c) No person shall be compelled to do what the law does not require him to do."
A bare perusal of paras (a), (b) and (c) shows that provisions of para (a) are quite independent in themselves and they have no nexus with paras (b) and (c) nor para '(a) is dependent on paras (b) or (c). In fact paras (a), (b) and (c) embody independent and self-contained provisions. The basic rule of interpretation is that if the language of any provision of the Constitution is plain then is it does not require to be interpreted with meanings which are not evident from the language. It is not allowable to interpret what has no need of interpretation. Similarly, effect has to be given to every part and every word of the Constitution. The Courts always avoid construction which renders any provision meaningless or inoperative and they must lean in favour of a construction which will render every word of the Constitution operative rather than making any word idle and nugatory.
The language of para (a) of Clause (2) of Article 4 is plain and definite. It says that no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law. Similarly, the language of paras (b) and (c) is also plain and definite and they do not require the help of para (a) for their interpretation. If para (a) ibid, is not an independent provision of law in itself, as Mr. Shahzad Jahangir wants me to interpret, but is to be read in conjunction with paras (b) and (c), then it will give rise to very anomalous situation. The result of such a reading would be that provisions of 'due process of law as contained in paras (b) and (c) would stand restricted only to the five subjects, namely, life, liberty, body, reputation or property of any person. Such an absurdity has neither been intended nor it can possibly be imputed to the framers of the Constitution I am. Therefore, of the considered view that para (a) of Clause (2) ibid, is a st: -contained provision and it has nothing to do with the other two paras (b) and (c). The import of the provisions of para (a) of Clause (2) of Article 4 is that no action detrimental to the life, liberty, body, reputation or property of any person can be taken unless such detrimental action as the backing of some law in existence. Before a detrimental action can be taken there must exist some law which may permit that any action detrimental to life, liberty, body, reputation or property of a person can be taken. In the absence of any existing law no such action can be taken by the State or any functionary of the State or any person connected with the affairs of the Federation or the Province. In Adamjee Jute Mills Limited and others v. Controller of Import and Export (20 DLR 791) a learned Division Bench of the Dacca High Court while interpreting Article 2 of the 1962 Constitution, which is comparable to Article 4 of the 1973 Constitution observed, "this means that there is a Constitutional protection in present; or in other words whenever an order is made which invades upon the rights of a citizen or requires him to do something, there must be, in existence, contemporaneously a law which would authorise such a course. If there is no such contemporary law in existence, the order would fall there and would become tainted with illegality as it would come within the mischief of a guaranteed Constitutional protection". It is to be further borne in mind that mere existence of such permissive law is not enough to take detrimental actions in the specified fields. The law authorizing invasion of the rights of the citizens must be such that it can validly be passed keeping in view the provisions of the Constitution, including the Fundamental Rights. I have already found that there is no law permitting the cigarette advertisements on the electronic media and such advertisements have the effect of propagating and inducing people, particularly the younger generation to adopt smoking habit which results in endangering fiuman life. Thus cigarette ads on TV/Radio are steps which can be termed detrimental to life and body of the people and in this view of the matter Article 4 of the Constitution, particularly Sub-Article (2) is directly contravened by telecasting/broadcasting of cigarette commercials on the TV and radio.
36. The word 'life' as it occurs in Article 4 as the same meaning as this word has in Article 9. As found by Anwar-ul-Haq, J. In the case of Manzoor Elahi (supra), provisions of Sub-Article (2)(a) in the context of 'life' as used therein carry the same meaning and substance as the word 'life' carries while appearing in Article 9. The honourable Supreme Court of Pakistan has given extended meaning to the word life' as used in Article 9, in the case of Ms. Shehla Zia v. WAPDA (PLD 1994 SC 693). This was the case in which complaint was made to direct WAPDA to construct high tension wires away from the residential areas, because the electro magnetic field created by high voltage transmission lines endangers human health. Observing that likelihood of any hazard to life by magnetic field effect could not be ignored, precautionary measures were directed to be taken by the honourable Supreme Court as the scope of 'life' as used in Article 9 was explained as under: - "Article 9 of the. Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word 'life' is very significant as it cowers all facts of human existence. The word life' has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person bom in a free country is entitled to enjoy with dignity, legally and Constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of the electromagnetic field or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations."
"A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and * liberties. Any action taken which may create hazards of life will be encroaching upon the person rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners are made. In our view the word 'life' Constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable."
Applying the principle of law enunciated in Frehia Zia's case (supra) to .The facts and circumstances of the present case, the citizens of this country and particularly the younger generation are entitled for protection of law from being exposed to the hazards of cigarette smoking, by virtue of the command contained in Article 4(2)(a) of the Constitution.
37. So far as Article 2-A of the Constitution is concerned it inter alia, ordains that social justice shall be provided to the people of Pakistan in terms of the Objectives Resolution. Social Justice in its extended concept means that the people should be allowed to live in conditions which are not pregnant with danger to human life. Article 2-A has been held to be a non-executory provision of the Constitution and, therefore, it cannot be pressed into service for striking down the other provisions of the Constitution, as held in Hakim Khan and others v. Government of Pakistan and others (PLD 1992 SC 595). However, provisions of Article 2-A can be pressed into service to test the vires of actions or non-actions of functionaries of the State, ln this view of the matter, the cigarette advertisements are not to be countenanced even on the touchstone of Article 2-A of the Constitutional.
38. The case may now be looked in the context of Article 9 of the Constitution, which provides protection to life, as a fundamental right in the following words:- "No person shun be deprived of life or liberty save in accordance with law."
In its effect Article 9 is comparable to Sub-Article: (2)(a) of Article 4, because action which are injurious to man health are prohibited to be taken. It as already been held that cigarette advertisements have the effect of creating health hazards, because it promotes smoking among the teenagers. Indeed there is no law which may provide for the advertisements of cigarettes on the electronic media. Therefore, such advertisements are violative of Article 9 of the Constitution.
Contrary to what was suggested by the leamed counsel for PTV, this article does not meaning that it shall be applicable only in cases where a person is completely deprived of his life, the deprivation of life cart be through delayed action or through slow process. Therefore, cigarette smoking may not mean early and complete loss of life of a person but with. Continued smoking a person may either contract the aforementioned deadly diseases or aggravate the same, the effect of either case would be deprivation of life. As already noted while discussing Shehla Zia 's case (supra) even creating conditions which adversely affect the health of the citizens would amount to deprivation of life within the meaning of Article 9 and taking action detrimental to life' and body' within the meaning of Article 4 of the Constitution.
39. Mr. Sajid Zahid, Advocate has contended that Constitutional guarantees under Articles 18 and 19 of the Constitution shall stand denied to the tobacco companies if cigarette advertisement on the electronic media is banned by an order of this Court. Article 19 ibid guarantees freedom of trade, business or profession. Every citizen has the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. The trade or business of the tobacco companies is broadly speaking, confined to the manufacturing and marketing of cigarettes. Ban on cigarette ads will not stop the tobacco companies either from manufacturing the cigarettes or to sell the same in the market. Provisions of Article 18 ibid, therefore, are n6t violated if ban on advertisement on the electronic media is imposed either by the Government or by the Court. The conduct of trade or business does not include the right to advertise the trade or business on the television and the radio. This is not the essential ingredient of the trade or business. The Constitutional guarantee under Article 18 will be infringed if some one is debarred or prohibited front doing any particular trade or business. Through advertisement on TV and Radio one may be able to boost up his trade or business alright but it cannot be said that without such advertisements he cannot conduct this trade or business. It must also be considered that the ban on advertisement will not be confined to any particular tobacco company so that it lags behind in the competition of sale of cigarettes in the market. The prayer for ban on cigarette commercials is equally applicable to all the cigarette companies in Pakistan, so that all of them will be similarly placed. The effects of non advertisement of cigarettes on -the electronic media shall be equal for all tobacco companies. I, therefore, do not see any infringement of the guarantee of freedom of the trade or business it tobacco companies without any discrimination are disallowed to advertise their brands of cigarettes on TV and Radio.
40. Article 19 of the Constitution, which guarantees freedom of speech and expression and freedom of press has also been pressed into service by the leamed counsel. I do not find that Article 19 has an application in the facts and circumstances of the present case. Neither the freedom of speech and expression nor the freedom of press is violated if cigarette related commercials of the tobacco companies are not shown on the TV or relayed from the Radio.
41. There now remains the last question to be examined, as to wether the pronouncement of the honourable Supreme Court in the case of Amanullah Khan (supra) creates a bar for holding that advertisements of cigarette related commercials on the television impinge upon the Fundamental Right guaranteed by Article 9 of the Constitution. This was a human rights case decided on 23-2- 1994 by the honourable Supreme Court. A petition was made directly in the Supreme Court under Article 184(3) of the Constitution, to seek direction for banning cigarette commercials on the television. The petition was dismissed by order which is reproduced hereunder in extenso "This is an application under Article 184(3) of the Constitution. The petitioner is aggrieved by the Commercials which appear on behalf of the cigarette companies on the television. He seeks a direction for banning these commercials on the television. He states that the smoking habit has attained alarming proportions in Pakistan during the past two decades; as the western tobacco companies are unable to sell cigarettes in the western countries they are now^aiming at the developing nations; unfortunately, unsuspecting people of Pakistan are falling prey to their advertising campaign which has already resulted in catastrophic calamities in the form of cancer and heart disease.
2. The petitioner is no doubt a public spirited man and his efforts to cut down the menace of smoking in our country are indeed laudable. However, the jurisdiction of this Court to directly entertain applications under Article 184(3), ibid, is of a limited scope inasmuch as it is confined to the enforcement of the Fundamental Rights set out in Chapter 1 of Part II of the Constitution. On our inquiry the petitioner was unable to particularise the Fundamental Rights which he wanted to enforce through this petition. He made vague references to Articles 4(2)(a) and 25(1) of the Constitution. Article 4(2)(a) does not fall in Chapter 1 of Part II of the Constitution and insofar as Article 25(1) is concerned that deals with the equality of the citizens before law. The advertising campaign of cigarette companies on the television seem hardly to impinge upon his right to equal treatment before law. The only Fundamental Right which can possibly have any relevance to his application is contained in Article 9 which states that no person shall be deprived of life and liberty save in accordance with law. There is a possible justification for constructing this Article in a manner which will embrace quality of life as well. But then it may be mentioned that after every commercial shown on the television relating to the promotion of cigarette a warning by the Ministry of Health with regard to the hazard of smoking is invariably displayed, lt is not the case of the petitioner that he had attempted to run an anti-smoking campaign on the television on the same terms on which the cigarette manufacturing companies put on their commercials but he was denied the opportunity of doing so. This petition clearly does not fall within the restricted jurisdiction enjoyed by this Court under Article 184(3) ibid. In the circumstances, although we appreciate the efforts made by the petitioner for saving the nation from the hazards of smoking, we cannot issue an order to ban the commercial advertisements relating to smoking on the television for lack of jurisdiction. The application is dismissed."
In the above case only petitioner No. 2 appeared in person without the assistance of any counsel. It appears, that proper assistance was not rendered on behalf of the petitioner by placing all relevant material and upto date data in favour of the proposition that cigarette smoking endangers human life and glamorous cigarette commercials shown on the television do have the effect of promoting/inducing cigarette smoking habit among the younger generation. As observed by their Lordships, the petition was not aware of what particular Fundamental Rights stood contravened through cigarette advertisements on TV. He made vague references to Article 4(2)(a) and 25(1) of the Constitution. Article 4(2)(a) was not considered by their Lordships because it was not a Fundamental Right only infringement whereof jurisdiction could be assumed under Article
184. Article 25 was found to be inapplicable. It was of their own that their Lordships observed:- "The only Fundamental Right which can possibly have any relevance to his application is contained in Article 9 which states that no person shall be deprived of life and liberty save in accordance with law. There is possible justification for constructing this Article in a manner which will embrace quality of life as well. But then it may be mentioned that after every commercials shown on the television relating to the promotion of cigarette a warning by the Ministry of Health with regard to the hazard of smoking is invariably displayed. It is not the case of the petitioner that he had attempted to run an anti-smoking campaign on the television on the same terms on which the cigarette manufacturing companies put on their commercials but he was denied the opportunity of doing so."
While appreciating the effort of the petitioner for saving the nation from hazard of smoking the order to ban cigarette advertisements relating to smoking on television was not issued for lack of jurisdiction.
4. A decision of the Supreme Court is binding on all Courts insofar as it decides a question of law or enunciates a principle of law, as per provisions of Article 189 of the Constitution, which is reproduced below:- "Article 189: Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
Any decision of the Supreme Court shall, to the extent that it decides a question of tew or is based upon or enunciates a principle of law, is binding on all other Courts in Pakistan. It must be stated with utmost respect, that the decision of the honourable Supreme Court relating to the question of law and principles of law is binding on all Courts and np one is permitted to take different view.
However, a decision will be binding under Article 189 ibid, if the decision on point of law or a principle of law is definite and final. The question relation to the binding nature of the decision of the Supreme Court came up for consideration before the honourable Supreme Court in Trustees of the Port of Karachi v. Muhammad Sale (1994 SGMR 2213). Their Lordships relied on the following view of Lord Halsbury:- "It is well-settled that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. (Quin v. Leathern 1901 AC 495, 506)."
Their Lordships came to the conclusion that in order that a decision on question of law is binding within the meaning of Articles 189 and 201 of the Constitution it is not enough that a legal proposition follows logically from it but that question must have been actually decided. The relevant conclusion is reproduced below:- "Precedent cases fall in two distinct categories. 1h the first category fall the decision which (------- ------------------ ) are based upon enunciate a principle of law within the- hearing of Articles 189 and 201 of the Constitution and, are therefore, binding, if the decision be by a High Court, on all Courts subordinate to it. In the second category fall the cases which are not so binding but are merely illustrations of the application of the principles of law annunciated in the first category of precedent cases. So in order that a decision on a question of law is binding within the meaning of Articles 189 and 201 of the Constitution it is not enough that a legal proposition follows logically from it; that question must have been actually decided."
A leamed Division Bench of the Karachi High Court in Afaquz Zubair v. Muhammad Idrees (PLD 1978 Karachi 984) expressed the opinion that even obiter dicta of the Supreme Court on a question of law would be binding on the High Court but the condition for that is that their Lordships of the Supreme Court should express final opinion on the precise question". In this it was observed by Zafar Hussain Mirza, J. Who later adorned the Supreme Court, as follows:- "But a careful reading of the observation makes it quite clear to my mind that the opinion expressed by their Lordships was explicitly tentative and the true interpretation of clause (i) of sub- section (3) of Section 30 of the Act was left open. This is clear from the use of the word 'may' and the words "at any rate, at least one notice of demand" in the underlined portion of the observations.
At the end of the quotation once again their Lordships have used the words "one notice of demand is at least necessary for the protection to be lost". The word 'may' imports possibility but cannot be deemed to express absolute opinion. Similarly, 'at least' means at all events or even if a wider statement is disputable or it meas at the lowest computation. Having regard to the language used by their Lordships the clear import of the observations is that their Lordships did not rule out the possibility of interpretation to the effect that more than one notice of demand may be necessary in case of successive defaults by a statutory tenant. In this view of the matter I regret my inability to agree with the view taken by A.R. Shaikh, J., in Saeed Ahmad's case regarding the observations of their Lordships. As a consequence, in my opinion, it is open to us to construe the effect of section 30 sub-section (3) of the Act."
42. In view of the above discussion, in my humble estimation, a decision of he honourable Supreme Court would be binding under Article 189 of the Constitution if:-
(i) it decides a question of law or is based upon or enunciates a principle of law.
(ii) it is not enough that a legal proposition follows logically from the decision but the question of law involved therein should have been actually and finally decided.
(iii) the opinion expressed by the honourable Supreme Court should be express and definite arid should not be tentative in nature and nothing should be left open.
In my humble view, no express and final determination was made on question of law in the case of Amanullah Khan (supra) by the honourable Supreme Court that cigarette advertisements on the TV did not have the effect of promoting cigarette smoking habit in the younger generation, thereby exposing them and other to the health hazards involved in cigarette smoking so as to attract Article 9 of the Constitution. It appears, and I say so with utmost respect, that the matter was primarily examined in the context of Article 25 ibid, which was pressed into service by the petitioner.
43. Be that as it may, that decision is based on the facts and the materia produced before their Lordships in that particular case. As already said, enough material was not produced by the petitioner who was not assisted by a counsel. The authentic opinion which has been referred to in the present case with regard to the enormous effects of cigarette related glamorous commercials on the TV, which caused 65% increase in cigarette production in Pakistan just in 10 years, was not placed before their Lordships. Similarly, the recent ban on smoking in public places, which is acknowledgement of the hazards of cigarette smoking is a new factor. Matters relating to Fundamental Rights, particularly relating to the health of the people can be adjudicated afresh in the light of fresh material and data made available to the Court. In this view of the matter, in my humble opinion, the decision in Amanullah Khan (supra) is not a bar for deciding that Article 9 of the Constitution is also infringed in the circumstances of the present case. Be that as it may, the effect of protection available under Article 4(2)(a) ibid was left open by their Lordships of the Supreme Court and I have already come to the conclusion that cigarette commercials require to be banned on electronic media in view of the provisions of Article 4(2)(a) ibid.
44. The above are the detailed reasons in support of the short order dated 21-3-1997 whereby the writ petition has been accepted with the following directions:- "(a) The Pakistan Television Corporation shall not telecast from its television centres any cigarette related commercial nor shall it show any programme/advertisement which may have the effect to promoting/propagating cigarette smoking among the people. This restraint order shall become operative with effect from 1-4-1997, as the subsisting contracts shall expire on 31-3-1997.
(b) The restraint order contained in the preceding paragraph will, however, be not applicable for a period of three years i.e. Till 31-3- 2000, in respect of live telecasting of various sports events sponsored by the cigarette companies, provided the actual smoking is not shown therein and is followed by a proper warning. To seek further extension in the aforesaid period of three years for sports live telecasting, the Pakistan Television Corporation may approach this Court with appropriate prayer, which will be considered in the then prevailing facts and circumstances.
(c) The Pakistan Broadcasting Corporation shall not relay any advertisement for the purpose of popularizing smoking among the people. The commentaries of sports events without propagating smoking can, however, be relayed in view of the statement made by the leamed counsel for the Pakistan Broadcasting Corporation that in the commentaries the only thing said is that the programme is relayed with the cooperation of the particular cigarette company."