Tobacco manufacturers are cock-a-whoop over Gauhati High Court’s recent order striking down the law enacted by Assam Assembly in July 2013 that had banned sale, manufacture and consumption of all forms of smokeless tobacco, including zarda, gutkha and pan masala. The HC divisional bench has now ruled that this law is ultra vires of the Constitution. Assam was the first State to have brought in such a law, but the High Court order means the State legislature had no competence to make the law. Tobacco manufacturing firms successfully argued in court that when the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (or COTPA 2003) enacted by Parliament is already in force throughout the country, the Assam Assembly cannot pass a separate law that violates the Central law. The pin-point, consistent legal reasoning put forth by the tobacco manufacturers has helped them win the day, which was only to be expected. After all, Patna High Court last year had struck down on similar grounds a Bihar government notification banning the sale of tobacco products like pan masala, zarda, scented supari and tobacco. Tobacco manufacturers had then argued that tobacco products cannot be banned by any executive instruction, but only through policy decision implemented by ‘appropriate legislation’. The States can neither pass orders nor enact laws to ban tobacco products, only the Centre can do this if Parliament passes such a law — so goes the tobacco manufacturers’ line. Thus, if it ever comes to banning tobacco products, smokeless or smoking, it will be strictly the Union government’s call. But will a government at the Centre ever do this? The tobacco farmer lobby will staunchly oppose any such move. And leaving aside the undoubted clout of tobacco manufacturers, the government too rakes in handsome revenues by taxing tobacco products. In most Union and State budgets, tobacco products have been fair game with ever higher tax rates slapped year after year. Under GST regime presently, tobacco products are not only placed in the highest 28 percent tax slab, but also attract additional cess. Has the heavy taxation deterred tobacco users? Not one bit!
While taxes on tobacco contribute well to government coffers, the public health expense in treating tobacco use related ailments is a heavy drain. Not just mouth, lung and other cancers, tobacco is also known to cause lung diseases and trigger strokes and heart attacks. Prior to Assam Assembly passing the law banning smokeless tobacco, it had been reported that of the 2011 State Health budget of Rs 541.2 crore, as much as Rs 157.8 crore was spent for treating tobacco-related diseases. However, the law remained mostly on paper with tobacco manufacturers, sellers and users devising ways to beat the ban. A huge smuggling racket struck root, turning Assam into a distribution centre supplying cheap tobacco products to other Northeast States and even westwards to the rest of the country. There have been allegations of political leaders of various hues being hand-in-glove with the racketeers. Tobacco shops continued to sell banned products clandestinely, avoiding display boards; many such outlets also continued to be located near schools and colleges. As for users, they bought gutkha in the black market or made their gutkha by mixing tobacco with other ingredients available. Thus it is that India continues to have the highest number of tobacco consumers, next only to China. And tobacco consumption in the country is highest in the NE States Mizoram, Meghalaya, Manipur, Nagaland, Tripura and Assam — with over 70 percent men in the region using tobacco in some form or the other, as per National Family Health Survey data in 2015-16. It comes as a natural corollary that cancer risk and incidence in the Northeast is also far higher than the national average. Cancer and anti-tobacco crusaders have repeatedly pointed out that COTPA 2003 merely aims to reduce the ‘demand for tobacco’ by discouraging its use, curbing glamorisation and protecting children from picking up the habit. Considering the case of Assam alone, this Central law has failed to deter children from picking up the tobacco habit. While one-third of the State’s population of 3.2 crore consume tobacco in one form or other, one-third of these 1.2 crore consumers are children (i.e. around 40 lakh). The Assam government had enacted a well-intentioned law to shift the onus of prohibiting tobacco from the consumer to the manufacturer. Activists believe Dispur should now move the Supreme Court, and thereby bring to centrestage the question of banning tobacco use in all forms. Whether the State government does so remains to be seen, but it needs to undertake awareness drives at school level, as well as firm steps under existing rules against tobacco vendors operating near educational institutions.