Plea in Delhi High Court challenges ban on vaping devices in airports, aircraft

A petition has been filed before the Delhi High Court challenging a move by the Bureau of Civil Aviation Security (BCAS) to ban the transport of e-cigarettes and vapes at Indian airports and in aircraft [Sutirtha Dutta v. Bureau of Civil Aviation Security]..The plea filed by one Sutirtha Dutta has challenged an addendum issued by BCAS to an order passed by the Union Ministry of Civil Aviation.On the last date of hearing in the matter, Justice Yashwant Varma granted time to the Central government to produce the relevant material on this issue, before the Court.The matter will be heard next on August 24, 2022. .The plea has sought directions to the Bureau of Civil Aviation Security, which is the governmental regulatory body for civil aviation under the Ministry of Civil Aviation, to repeal the addendum. The order dated January 10, 2020 issued by the Directorate General of Civil Aviation, banned the transport of e-cigarettes at Indian airports and aircraft, citing the Prohibition of Electronic Cigarettes Act passed by the parliament on December 5, 2019. The Act prohibits the production, manufacture, import. export, transport, sale, distribution, storage and advertisement of e-cigarettes or vapes..The petition submitted that this action by the Ministry of Civil Aviation was taken without any rhyme or reason, and lacked consideration of the provisions of the Act, which allows for personal use of electronic cigarettes, as per various clarifications given by authorities and the concerned ministry respectively.Further, the petition contended that this action was an abuse of power that has led to the confiscation of vaping devices from travellers passing through Mumbai, Bangalore, Chennai, Kolkata, Delhi, Goa, Bhavnagar and other airports.Interestingly, the petitioner also stated that he was a smoker, who with the aid of e-cigarettes, had quit smoking. Therefore, the bar on vaping device whilst flying was leading to a situation of a relapse, it was contended. "It is submitted that applicant/ petitioner is a former smoker, who, by aid of E-cigarettes, has quit smoking combustible cigarettes and since, the Applicant / Petitioner, by virtue of the impugned Addendum, cannot carry his E-cigarettes whilst travelling by aircraft, leading to a situation of smoking relapse," the plea said. The petitioner further submitted that studies and research revealed that relapsing to combustible cigarettes is a very common phenomena for persons who have quit smoking.Therefore, the petition argued that the addendum issued by the Central government was vague, misleading and illegally infringing upon the rights of the petitioner and other consumers of e-cigarettes, which are deemed globally less harmful than normal cigarettes."That on a bare reading of the Act, it becomes clear that the Addendum that has been issued by the Respondent is vague and misleading, and is needlessly criminalizing and illegally infringing upon the rights of the Petitioner and other consumers of Electronic Cigarettes, which are deemed globally to be less harmful than smoking combustible cigarettes. Section 4 of the said Act does not contain any language that would support the Respondent that the personal use of Electronic Cigarettes is banned in India," the plea stated in this regard..It was also submitted that at the time when the draft prohibition of electronic cigarettes bill was being debated in the parliament, the then Union Health Minister, Dr. Harsh Vardhan on behalf of the government had stated on the floor of Parliament that,"The intent of the legislation is not to criminalize citizen but instead to ban any kind of trade in e-cigarettes. Monitoring use is difficult to enforce and may lead to infringement of civil liberties."The absence of a clear mandate to this effect under the provisions of the said Act had resulted in arbitrary and wrongful interpretation of the Act and its provisions, which in turn has led to the infringement of the rights of the petitioner as well as users of Electronic Nicotine Delivery System (ENDS) devices, it was submitted. Pertinently, the Ministry of Health and Family Welfare under the aegis of the Government of India, on September 18, 2019 had posted on social media platform `Twitter' that the Union Cabinet had decided that "individual possession of e-cigarettes for personal use in not an offence".Despite such clarifications, the respondent, in exercise of its powers conferred by Section 5 A of the Aircraft Act, 1934 had banned the transport and personal use, of e-cigarettes at Indian airports and aircraft, it was pointed out. Advocate Farrukh Khan appeared for the petitioner while advocate Anjana Gosain appeared for the Central government..[Read Order]