“Loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs; and in the stinking fume thereof nearest resembling the horrific stygian smoke of the pit that is bottomless.”

King James I, in a decree banning tobacco from his kingdom, 1604.

The crusade against tobacco products has been carried on since time immemorial. But strangely nothing has been successful in stemming the tide of atrocities of the “killer weed”.

For the first time in the 1950’s, smoking was linked to cancer by researchers. But almost a decade passed in between before it could convince the doctors and still more time for the masses to accept it. In fact some protagonists came down heavily with the claim that they have the ‘Fundamental Right to smoke’. The controversy was put to rest by a Kerala High Court judgment (AIR 1999 Ker 385), wherein the Court not only detailed the ill effects of smoking and spelt out the executive’s powers in the matter, but also held that “smoke” is “Air Pollution” under the Air (Prevention and Control) of Pollution Act, 1981.

The Court clarified that the pet contention of the protagonists of tobacco is that, it makes a significant contribution to the exchequer by way of taxes and hence, should not be disturbed. Also a large number of tobacco farmers will be hit if the consumption is curbed. However, these contentions have been forcefully countered by reports of the World Health Organization (WHO). Several studies have brought out that the cost of healthcare, of those affected by tobacco related ailments, which is derived from the government exchequer, is much more than what the government gains by way of taxes. Thus, there is a net drain of the government resources. Also, illness or premature death of the tobacco users cast a heavy economic burden on their families, perpetuating the vicious cycle of poverty. As regards the possible impact of any curbs on tobacco use, on tobacco farmers; studies by Rajahmundry based Tobacco  Research Institute of the ICAR have brought out equally remunerative alternative to tobacco cultivation, besides use of tobacco for purposes other than smoking and chewing.

The Controversy

Here it is worthwhile to mention that, at a time, even the fact, that passive smoking is one of the leading preventable causes of premature death and a high degree health hazard, came under heavy suspicion. In the May 17, 2003 issue of the prestigious British Medical Journal, a very controversial report was published. This is a finding which every smoker welcomed with a sigh of relief. After working for 40 years Dr. James Enstrom from the University of California and Professor Geoffery Kabet from the State University of New York stated that association between exposure to Environment Tobacco Smoke and coronary heart disease or lung cancer is almost nil.

The Truth

Later, the American Cancer Society (ACS), whose data the researchers had analyzed, said that the study was misleading. It had thoroughly ignored an important factor – how much the non smokers were exposed to smoke outside their homes.

Till now 4000 chemicals have been identified in cigarette smoke, of which 40 are potent carcinogens (AIR 2000 Sept). These chemicals are long-lived free radicals (Hyper Reactive Chemicals), which indiscriminately attack all the building blocks of a cell including lipids, proteins and DNA. Since the harmful chemicals are long lived, they attack the non-smokers as they attack the smokers.

The irony of the matter is that the researchers have declared that they have received funds from the tobacco industry to carry out the research work. Though they have denied of being influenced by the industry, scientists and health officials do not rule out the possibility of an unfair play. Earlier documents have proved beyond doubt that the industry has influenced research publications and taken every possible step whenever something came out against them.

The Convention

Speculating the unrestricted proliferation of tobacco related hazards in the recent past and its widespread popularity among the young blood, the WHO has used its constitutional mandate and initiated the Framework Convention on Tobacco Control (FCTC) to support and accelerate the work of member states to strengthen their tobacco control programmes.

Now that India is a signatory to the World Health Organisation’s Framework Convention on Tobacco Control, it would be helpful if we take a peek at some of the interesting proposals put forward by this Convention.

Article 6.2(a) speaks of implementation of tax and price policies on tobacco products so as to achieve progressive reduction in tobacco consumption.

Article 8 speaks of the adoption and implementation of the effective legislative, executive, administrative or other measures at the appropriate governmental levels, providing for adequate protection from exposure to tobacco smoke in public places, public transport and indoor workplaces.

Article 11.1(b) specifies that no term, descriptor or expression, such as “low tar”, “light”, “ultra-light”, or “mild”, that has the aim or the direct or indirect effect of creating the false impression that a particular product is less harmful than the other tobacco products, is to be used.

Article 16.1(d) prohibits the manufacture as well as import and sale of sweets and toys in the form of tobacco products.

Article 19.1 speaks of taking legislative action and promoting the existing laws to deal with liabilities and compensations for the purpose of tobacco control.

In a country like India, where we witness 8,00,000 deaths each year caused due to the tobacco menace (The Cigarettes and  Other Tobacco Products Act, 2003), its high time that Conventions like this should come into effect immediately and in its entirety. The Indian Council for Medical Research (ICMR) has estimated that 142 million men and 72 million women above the age of 15years are tobacco consumers. It has also predicted that out of 100 teenagers smoking today, 50 will eventually die of tobacco related diseases. As a matter of fact, the WHO has also projected that India will have the highest rate of tobacco-related deaths by the year 2020.

The Act

The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, was passed by both the Houses and got the Presidential assent on 19th May, 2003. It came into force on 1st May, 2004 and its amendment rules took effect from 1st August, 2005.

The Flaws of the Law

The impugned Act has attempted to regulate a number of vital issues in a rather hasty manner, which are highly impractical to implement, likely to cause unnecessary harassment and quite unlikely to achieve the desired results effectively.

‘Public Place’

The said Act has changed the very specifications of the supposedly controversial term ‘Public Place’ and stated in Section 3(1) that a “Public Place” means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings,  railway waiting room, amusement parks, amusement centers, restaurants, public offices, Court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space”

Here, it is prima facie evident that the concluding phrase of the abovementioned definition – ‘but does not include any open space’ is grossly arbitrary and has left a massive loophole in the implementation part of the said Act. For example, if a person is caught smoking at a bus stand(which is often an open space), he can easily take the defense of vagueness of the term ‘Public Place’ – which does not include any open space; therefore getting away scot-free even after inflicting harm to the public at large(passive smokers).

Unreasonable Restrictions on the Print Media

The validity of the Act and the subsequent Amendment Rules that restrict “direct or indirect advertisement of cigarette and other tobacco products” in the media has been challenged in a Petition in the Madras High Court. The Rules make it mandatory for the media to “crop or mask” pictures of tobacco products to ensure that their brand names are not portrayed.

It has been contented by the Editor in Chief of The Hindu, the petitioner here, that since Public Health is a subject matter of the State Legislature, the Parliament cannot possibly legislate in this respect. Moreover, it was certainly not the intention of the Legislature to prohibit the publication of substantial news items that incidentally involve the name of a cigarette brand. Further, news reports do not come within the ambit of the word “advertisement” under the said Act.

It is also a fact that while restrictions have been laid down on publication of news reports on Formula One racing, the television channels are still telecasting them live. This is unequal treatment of equals. Aristotle was of the view that injustice arises when equals are treated unequally and also when unequal are treated equally. Therefore, such arbitrary action undoubtedly violates Article 14 of the Constitution of India.

As far as the restrictions are concerned, “commercial speech” is protected under Article 19(1) (a) which can only be curtailed as per the exceptions listed in Article 19(2). Public Health is not a ground for imposing restrictions on the right to Freedom of Speech. By introducing such a regulation, the Freedom of Speech and Expression of the print media has been hindered. Further in the guise of imposing “reasonable restrictions” in the “interests of general public”, the Act has narrowed the scope of dissemination of information, thus limiting the freedom enshrined under Article 19(1)(g) of the Constitution of India.

The Petition has also pointed out that the Act, as its name suggests, is supposed to prohibit advertisement and regulate the trade, commerce, production, supply, distribution and consumption of tobacco products. But, besides cornering the print media in the act of prohibiting advertisement of these products, a concrete step is yet to be taken in the regulation of their production, supply and distribution. Moreover what use can banning advertisement have, if no step is taken to prevent consumption of tobacco products?

The Last Word

For long, anti-tobacco activists have vehemently supported the fact that tobacco addiction is like slow poisoning. It damages every part of the body, accelerating the process of decay and ageing. In fact, some thinkers have demanded that the Central Government should include tobacco in the category of narcotics as it contains nicotine. This will enable the government to enforce narcotics-related laws to combat tobacco addiction. Certain useful suggestions, in this regard, have already been presented before the State and Union Governments via memorandums. There are even suggestions to ban tobacco farming in a phased manner on the lines of the ban of ‘ganja’ and brown-sugar farming.

Lastly, it is needless to say that our country truly needs an anti-tobacco law but definitely not one which is created on an ad hoc basis and which fails to achieve the actual goal for which it is enacted. . International experience has shown that comprehensive tobacco control policies have brought down smoking and improved public health. But flawed legislations like this can never be instrumental enough in wiping out deep rooted evils, especially the ones like smoking. Bans, of the nature mentioned above, portray a high degree of deviation from the actual objective the legislature had sought to achieve. Therefore, laws should not be made only for the sake of pacifying the long drawn demands of the society but definitely to serve the purpose for which the society demands it.

By LawZ Bureau,