Things beyond commerce

Scientists and experts across the globe have unequivocally proved that half of all tobacco users die prematurely. More than nine lakh people die in India due to tobacco consumption every year, according to government sources. Studies also suggest that tobacco, with its nicotine content, is a highly addictive substance, even more so than heroin or cocaine.

Over the counter, unrestricted sale of such products per se is antithetical to the fundamental right to life guaranteed under Article 21 of the Constitution. Given the evidence against tobacco, sale of any tobacco product for human consumption inherently involves an unfair trade practice and hence goes against the ethos of a consumer protection regime.

Nevertheless, it has been an impossible task so far to limit the $11 billion tobacco industry's right to trade. The Indian government has for the first time requested the apex court to classify tobacco as res extra commercium, that is, things beyond commerce. The move is part of the government's effort to tame the tobacco companies challenging the government's authority to regulate the industry in public interest.

While enacting the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Distribution and Supply) Act, 2003 - (COTPA) - Parliament considered the resolutions of the 39th and 43rd World Health Assemblies that, among other things, called on Parties; "to protect children and young people from being addicted to the use of tobacco".

The Parliament in all its wisdom also acknowledged that it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health (emphasis added) with a view to accomplish improvement of public health in general as commanded by Article 47 of the Constitution.

It is sufficiently clear from COTPA that the legislators considered tobacco as "res extra commercium" as far as minors are concerned but also expressed their intent to prohibit tobacco consumption to improve public health in general to meet the obligation under Article 47. It also casts a duty on the State to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health.

Judicial conundrum

In the late 1990s and early 2000s, several state governments had banned sale of gutka and paan masala within their respective jurisdictions. Several of these orders were upheld by the respective high courts. However, the Supreme Court reversed the ban while considering appeals in Godawat Pan Masala Products IP vs Union of India & Ors. (2004). The State of Goa, to overcome this difficulty, amended its Public Health Act and imposed a ban under the state law.

Two years later, with the enactment of the Food Safety and Standards Act 2006 (FSSA), the fresh regulations prohibited use of tobacco as an ingredient in food items. This resulted in the ban on sale of gutka and paan masala containing tobacco.

The regulation also imposes a ban on all tobacco products which may contain any trace of food products, including any kind of tobacco flavoured with food additives. The regulation and the resulting ban on gutka and paan masala with tobacco were again challenged and once again came before the apex court's consideration in Ankur Gutkha vs. Indian Asthma Care Society.

The apex court, with the new FSSA Act and its regulations, upheld the ban and directed all states imposing the ban to file compliance report and issued notices against other states not implementing the ban on the manufacture and sale of gutka and paan masala with tobacco.

The state of Assam, going a step further, enacted and implemented the Assam Health (Prohibition of manufacturing, advertisement, trade, storage, distribution, sale and consumption of Zarda, Gutka, Paan Masala, etc., containing Tobacco and Nicotine) Act, 2013, making the consumption and trade of all forms of smokeless tobacco illegal. However, this public health measure was injuncted by the Gauhati High Court.

The matter is certainly going to reach the apex court, which is already seized of it with several petitions relating to the rising burden of tobacco use and the need for its strict regulation. India's tobacco labelling rules, which mandate that 85% of a cigarette pack's surface be covered in health warnings, have been another point of contention between the government and tobacco industries since its inception in 2016.

In another blow to the public health regime, the Karnataka High Court bizarrely struck down the Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014, (COTPA) which came into effect from April 1, 2016, holding that they violated constitutional norms.

The tobacco industry's challenge to any regulation under COTPA is unsustainable for the simple reason that the Constitution empowers the State under Article 19(6) to impose even a complete restriction on freedom of trade as guaranteed under Article 19(1)(g) in the public interest. And therefore, in view of the apex court's order in Ankur Gutkha case and observation of the Allahabad High Court in M/s Khedal Lal & Sons vs State of UP, the state action to impose restrictions and or prohibitions on tobacco, given its colossal public health burden, must be upheld.

The Supreme Court is seized with this opportunity, in the upcoming matter on implementation of pictorial health warnings on tobacco products, to close the matter once and for all in the larger interest of the health of the present and future generations of this country.

(Yadav is an expert in Public Health Law and Policy and Singh is Deputy Registrar, Supreme Court of India)