CRITICALANALYSIS OF SMOKING POLICY IN INDIA: NEXUS BETWEEN THE AGE LIMIT VIS-À-VIS A SOURCE OF REVENUE TO GOVERNMENT.
– P. Anantha Bhat,
1st Semester LL.M (Constitution and Administrative Law)
at Gujarat National Law University, Gandhinagar
This note would be basically enlightening about the basic policy of ‘smoking regulations in India’. As India being the 2nd largest producer and consumer of tobacco,1 despondently the consumption rate is also pretty high in the nation. In every packet of cigarette the tag-line ‘SmokingKills’ is eternal, but the rate of smoking has never came downwards from years. People smoke for ‘fun, stress-release or other personal reasons’ the rate of quitting smoking is very less in any country.
IMPACT OF TOBACCO
GATS India revealed that more than one-third (35%) of adults in India use tobacco in some form or the other.2 On an average a daily cigarette smoker in India smokes 6.2 cigarette sticks per day and a daily bidi smoker smokes 11.6 bidi sticks per day. GATS India shows that 52 percent of adults were exposed to second-hand smoke (SHS) at home. Indians tobacco problem is more complex than probably that of any other country in the world, with a large consequential burden of tobacco related disease and death.3
ORIGIN OF POLICY
Central Government of India, to regulate the cigarette products came up with enactment namely ‘Cigarettes and other tobacco products (Prohibition of advertisement and regulation of trade and commerce, production, supply and distribution) Act-2003’ (Herein after ‘COTPA, 2003 Act’) came to force on 18th May, 2003. TheAct was aimed at prohibiting advertisement and to provide regulation on cigarettes. This was to ensure resolution of 39th World Health Assembly of World Health Organisation on 15th May, 1986 for protection of non-smokers, protect children and young people from being addicted to the use of tobacco, This intern admits that the tobacco and smoking being an addictive product and cause bad diseases amongyoungsters. Similarly the 43rd World Health Assembly of World Health Organisation put restriction on indirect promotion and sponsorship concerning tobacco, such advertisement of the said products would drastically impact the society at large.
PRESENT LAW IN FORCE
COTPA, 2003 Act4 has 33 Section and One Schedule Attached to it. Section 2 empowers the power on Central government to take control of tobacco industry as preventive measure under public Interest. Section 4 of prohibits smoking in Public Place.In the Act several of places are mentioned as non-public place such as, parks, parking space and open market place. We need to see the validity of such places. As except the private homes most of the places motioned come within the meaning of public place.5
Section 6 has vital importance as it prescribes the age limit to smoke to be 18 years. Section 7 prescribes the regulation ‘Specific Warnings’ to package of the tobacco and regulation for the distributors and manufacturer. Section 8 provides the manner in which it has to be represented. Section 9 makesitmandatory to prescribe the above warning in English Language and other such languages of various states.Section 10 prescribes about size of letter and Section 11 testing of nicotine in laboratories.
Section 12 provides for, power of search and entry to police officer, not below the rank of sub-inspector and other officials provided in statute. These officials can seize and confiscation under section 13 and 14 respectively. Section 15 to provide opinion to pay cost on lieu of confiscation and such other powers mentioned under section 15 to 18. Section 19 provides for appeal and 20 to 24 provides for punishment. Section 26 deals with offence by companies. Section 27 provides the office being bailable offense. Section 31 provides for government to make rules. Under section 33 the Act repealed ‘The cigarette (Regulation of Production, Supply and Distribution) Act, 1975’.
COTPA, 2003 Act Section 2 (p) defines ‘tobacco products’ and schedule one mentions Cigarettes, Cigars, Cheroots, Bidis, Cigarette tobacco, pipe tobacco and hookah tobacco, chewing tobacco, Snuff, Pan Masala or any chewing material having tobacco as one of the ingredient, gutka, tooth powder containing tobacco.
GOVERNMENT BAN ON GUTKA
The Karnataka Government Banned Gutka recently,6 Apolicy decision cannot be questioned in the court of law but, the policy decision has to undergo the basic parameters of welfare, it need to have a motive and goal. As such policy decision has negative impact on the citizens.Presently in State of Karnataka the gutka product is not available in single packet but available in two separate packet (one chit of Masala and one chit of tobacco)which people combine and chew. This inturn raises the cost of gutka and increase the waste of plastic affecting waste management.7 The policy decision of government basicallyhas neither direction nor goal. Correspondingly the state of Kerala,8 Gujarat,9 several states like Goa, Madhya Pradesh, Bihar, Rajasthan, Maharashtra, Chandigarh, Chhattisgarh, Jharkhand, Haryana, Mizoram, Punjab and Delhi prohibited gutka.10
The government should have a will to regulate the tobacco in state, citing Article 47 of the constitution when necessity is not a sign of welfare-state.11 Ban on Tobacco cannot make any impact to agriculture sector in my opinion, as we can still export the products and use for other resources.
THE LINK BETWEEN 2003COTPA ACT AND 2014 BILL.
On 2nd October 2008, ‘Prohibition of smoking in Public Places Rules, 2008’ was notified with 5 rules, it defined hotel, restaurants and other public place. Rule 3 fixed the liability on the owner, manager or supervisor, proprietor, or in-charge of affair of public place and rule 5 provided for Recovery of fine by authorized officers.
Government of India has proposed the new Bill on ‘COTPA, 2003 Act’, this bill with an objective to amend the Cigarettes and other Tobacco Products.12 The brief proposed amendments are as follows:
Under section 2 of the Bill it is proposed to control tobacco industry in expediency way adhering to the public health policy5(3) of WHO Framework Convention on Tobacco Control.13 In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.
The Institute of Public Health v. The State Government of Karnataka14 the division bench, High Court of Karnataka observed the Public interest litigation filed byPetitioner for directing one of the respondents to withdraw all the sponsorship and non-monetary nature from2010 and violated the Act of 2003. In the present case Union of India accepted the contention of petitioner in pursuance they framed code of conduct for public officials, to prevent Tobacco Industry’s interference in developing and implementing public health policies and programmes related to tobacco control. The decision of the High Court was on 8th February 2011 and the present bill proposed is of 2015. We could see the said affidavit of the petitioner not came into reality.
Section 3 (a) the term ‘Advertisement’ has been given a wide meaning.TheAct prohibits the tobacco advertising, promotion and sponsorship, is essential to be in conformity with the proposed amendments to adopt the standards of WHO FCTC.
Section 4 of the Act provides for complete prohibition of smoking in Public Place except in InternationalAirports with certain conditions as in such situation the long duration of flights and intervening period between connecting flights this exemption is granted. This new section will remove the exception from hotels, restaurants. The tobacco use was given wider meaning which includes both smoking andspitting of tobacco at public place.
Spitting of tobacco at public place – Tobacco spitting in public place is one of the biggest cause of spread of infectious diseases such as tuberculosis, pneumonia, H1N1 and other diseases.
Hon’ble Supreme Court in MurliDeorav. Union of India15 has held that subjecting a non- smoker to tobacco smoke is violation ofhis fundamental rights guaranteed under Article 21 of the Indian Constitution, that none shall be deprived of his life without due process of law.
The objective of COTPA 2003 Act was to protect the non-smokers hence the prohibition in public place is must. The government for the present view was the Rules of Prohibition on Smoking at Public Place of 2008, where in the rules provide for separate room or section for smoking and which was further used as Hookah Bars and majority of the urban Youth were affected by it and further leading to the commercialization of Hookah Bars.
This policy proposed in my view is the best to safeguard andprotect the youth. Basically the Hookah Bar started their business as non-tobacco industry and which does not affect the health of citizen but, that was proved wrong, as the proposed bill has accepted the disasterscaused by Hookah Bars.
In furtherance the Central Government should ban industries which prepare these Hookah pipes and make them liable for producing such instruments, to the contrary the Supreme Court of India rejects ban on hookah bars in smoking zone.16 Article 13 of WHO FCTC, Further the promotion of tobacco by potential misuse of Corporate Social Responsibility activities by tobacco companies to indirectly promote or advertise tobacco products has been prohibited.
Section 6 has undergone the foremost change as the age limit has been increased to twenty- one years. The increase of minimum legal age for sale of tobacco products to 21 years will ensure protection of future generation from the hazards of tobacco.
The committee held on Human Resource Development17 “the committee has been given to understand that if a person is kept away from tobacco for the first twenty years of life, there is a very high possibilitythat he will remain tobacco free for the rest of hislife, Hence, it is mostly the teenagers and young school or college going students who are vulnerable to the addiction of tobacco. The committee is, therefore, of the view that availability of cigarette and other tobacco products should be made difficult for these age groups of people.”
The sale oftobacco near educationalinstitutionfor 100 meters has beenprohibited, as suggested by the 196th report by Committee on Subordinate Legislation which suggested the use of ‘meters’ instead of ‘yards’. Section Clause 6 (c) which intern prohibited sale of single stick of cigarette and the sale to be done as per the rules should be sold in intact packages.
This was intended to protect minors as the single stick and smallpouches make minor convenient and cheaper to buy tobacco products, the pack warning becomes inert.Clause (d) prohibits employment, engagement or use of children below the age of 18 years in the cultivation, processing and sale of tobacco or tobacco products. This emphasise on prohibition of minors in handling tobacco products.
Section 7 (5) introduced a new concept where in the producer has to mention the constituents and emission of each cigarettes, the section provide for maximum permissible limit of tobacco in product packages.The said amendment to ensure that maximum permissible limits of tar or nicotine contents not mean ‘as safer products’ the government would like to come up with the procedure for disclosure information which shall be displayed on the package.
Under section 8 the word ‘nicotine and tar’ word are substituted by ‘constituents and emission’. Section 19 (A) Special Courts have been Proposed to established by central or state government in consultation with the Chief Justice of High Court for violation of offences mentioned in Section 4,5,6 & 7 of COTPA,2003 Act., under Section 20 the punishment for failure to mentionthe specific warnings incigarette or tobacco product, the fine and imprisonment punishment has been increased.
Under section 21 the fine of two-hundred rupees increased to one thousand for smoking in certain places by individual.Section 24A which has been heart of this bill wherein of the manufacturer or producers does not follow the rules thecancellation of licence shall be done by as per the provision of law.
Section 25Awhere in the National Tobacco Control Organisation, which will monitor the provision of the said Act, defence the court case, Product regulations, testing standards ,alsoother function assigned by central government and WHOFCTC rule. Section 27-35 other substitution have been carried out to better implementation of the Act.
The CigarettesAct was really in implementation of World HealthAssembly Resolutions and was enacted to put a total ban on advertising of tobacco products and to prevent the sale of tobacco products to minors. It is also legislation which seeks to implement Article 47 of the Constitution which reads as under:-“Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
In Narinder S. Chadha AndOrsv. Municipal Corporation of Greater Mumbai18 while allowing for Hookah bar Supreme Court held: Section 5 implies complete prohibition on advertisement of tobacco directly or indirect means. Here by section 5(2) of the old enactment allow advertisement at point of sale and in or on packages of tobacco products. As this old provision was directly contrary to object of COTPA, 2003 enactment. The ratio was reached on relying on subsequent cases.
Firstly InP. Kasilingam and others v. P.S.G.College of Technology and others19 Court held “There is thus, no scope toinclude “service’ in such a definition. Further, even if we were to accept Mr. Bhatt’s contention, Rule4(3) would become ultra vires Section 6 of the Act inasmuch as it would prohibit the sale ofcigarettes and other tobacco products in a smoking area in hotels, restaurants and airports, thus,adding one more exception to the two exceptions already contained in Section 6.”
Secondly, InHimat Lal’s case,20 where in court held “it is clear that the word “regulate” would not include thepower to prohibit. Further, Section 144 of the Code of Criminal Procedure provides a power to grantonly temporary orders which cannot last beyond 2 months from the making thereof (see Section144(6) of the Code of Criminal Procedure)”. Hence the present order to close down hookah bar was cancelled and It is, thus, held that the condition would be ultra vires for the Cigarettes Act and the Rules.
In Delhi High Court in Institute of Public Health v. Union of India And Ors21 the contention of petitioner that the Union and the State Governments, under the provisions of the FCTC,cannot interact with the tobacco industry at an industry-sponsored event wheregovernment officials will be lobbied to adopt policies antithetical to public health and few more issues. But the petition was filled strangely under public interestlitigation.The reliefsought before the Karnataka High Court in the matter (supra15), was of restraining theTobacco Board constituted for promotion of tobacco industry from participating in the conference.
The reason which prevailed with the Karnataka High Court was that the participation by the Boardin the conference was beyond the provisions of the Tobacco Board Act, 1975. It was for this reasonthat restraint order against the Tobacco Board was issued. The position here is entirely different.
Supreme Court in Narmada BachaoAndolanv. Union of India22 held that inexercising of its enormous power, the Court should not be called upon or undertake governmentalduties or functions; the Courts cannot run the government and the essence of judicial review is aconstitutional fundamental; that in matters of policy, the Court will not interfere; when there is avalid law requiring the Government to act in a particular manner, the Court ought not to, withoutstriking down the law, give any direction and which is not in accordance with law not itself act abovethe law. Similarly, till the petitioner shows that the proposed actions of the Government sought to berestrained are contrary to any law, this Court cannot issue the restraint order. The Court cannot tellthe Government how to go about its conduct and business on a day to day basis.We therefore do not find any merit in the petition which is dismissed.
The Union calls for international solidarity on tobacco packaging laws23, The Union calls on countries to work together to introduce and uphold the tobacco packaging and labelling laws that have proven both to help tobacco users quit and discourage others from trying these highly addictive products.
World No Tobacco Day was introduced bythe World Health Organization in 1988 to highlight the devastating impact of tobacco use on health, and advocate for countries to introduce and enforce policies that help people to quit and discourage non-users from starting. This year WHO24 is calling for countries to work together to end the illicit trade of tobacco products.WHOFramework Convention on Tobacco Control (FCTC)25 has 38 Articles and two annexure, with a motive to reduce the demand for tobacco, price and tax measures and Non-price measures to reduce the demand for tobacco.26
Some of the objective like, Determined to give priority to their right to protect public health, Acknowledging that there is clear scientific evidence that prenatal exposure to tobaccosmoke causes adverse health and developmental conditions for children, Deeply concerned about the escalation in smoking and other forms of tobaccoconsumption bychildren and adolescents worldwide, particularly smoking at increasingly early ages.27
In order to better protect human health, Parties are encouraged to implement measures beyond those required by this Convention and its protocols28 and other masseuses are prescribed in rest of 36 Articles.
ANALYSIS OF POLICY
The Age limit of smoking has drastically reduced in the present situation, for this reason the government of India has come up with the new proposal with a policy decision that ‘the age limit of smoking to be increased by 18 years to 21 years’29 which would definitely help as a precautionary measure. Still their lies an issue, whether by the introduction of new policy of lawbe able to restrict the smokers, therefore there needs to be an inducement of good knowledge to youngsters. The policy lack discussion on youngster and children as just increase of age limit would be insufficient, as theere need to be executive as watch dog which could be a difficult task. The special court concept would be relevant in present state of affairs.
Life is to lead a happy life; Life is not a status where we keep smoking day and night, without seeing the sunrays nor enjoying the moonlight, wake up and wake up for a country. We may be proud to have plentyofyoungsters in our State, but most ofthemlack ingoal. The contribution of youth to country is in a small amount due to excess of smoking, drugs and alcohol.
(i) Action to be taken by state Governments
The executive implantation of rules and laws need to be regulated by having one separate wing of police; this force needs to watch dog the smokers who smoke in public place. Though FCTC held proper regulation on tax issues involved in tobacco,raising tobacco taxes can help curb smoking,but it won’t be an issue as in my view it doesn’t matterif cigarettes are bought at higherprice. As it’s an addictive substance, even these policy decisions will bedefiantly unconstructive. A smoker would never worry about the money which he/she is paying to the shop keeper, they won’t worry about the ‘ban of Single- cigarette’ or a new rule to buy the ‘Whole-pack’ the basic issue would be, if he buys the ‘whole-pack’ he may smoke more, even if ‘ban of single-cigarette is made, the implantation would be impossible and executive cannot reinforce as it would be complicated task.
The statistics of the government cannot be termed to be bonafide, as people would still buy the cigarettes even if there is hike of tax rates. Rise in tax would be beneficial for the corporate firms but neither for the farmers nor for government. As government again will have to spend a lot of money for the health and other safety camps. If the state is ensuring thewelfare of citizens it should work on the grass-route level of cigarettes by implementing the welfare policies.
Government should provide the wide publicity of smoke-free area and Health issues. One of the issues for consideration would be the guidelines issued by the ministry to education departmentto university and schools. Which stipulates to display the ‘Smoke-free’ boards, butinstitutions though have the prescribed boards, the implantation would be very feeble. ‘Tobacco free school’ and ‘tobacco control’ rules are just ‘white paper tiger’,curriculum of school and college shall have the methods of coming out just banning or prescribing the fine or rustication is not ground of preventive methods.30 The most of youngster are addicted to smoking habits, nothing can be cured no law nor regulation nor nicotine-free chewing gum can help them.
(ii) By Individual will
The smoking habits can be cured by will of the individual, a person need to have the free-will and Self-determination to quit the smoking. One of the methods is regular practice of yoga and good wisdom. Five minutes of such meditation canhelp to reduce the smoking habit.
There are few industries with tobacco and cigarettes which have the monopoly of over the market. The government should provide a separate guideline, what would be the measures and the step to be taken to control the tobacco industry. The guidelines for ‘Smoke-free rules’ in India,to keep the area smoke-free mere by the display of prescribed boards cannot bring the changes. Penalty on shop-keeper and other restrictions mentioned maynot work efficiently, the policy need to enlighten about the new guidelines for reformative and preventive measures. The agerestriction of 21 years if comes in to picture and strictly implemented as held by HRD committee we could visualize our youngsters to be addiction free. As noted by the committee if we protect youngsters for 21 years without smoking habits, chancesof addiction in would be less. Hope is the best way to succeed let’s take an oath to quit smoking and quit tobacco.