The Hindu Business Line : Smoked out

WHATEVER THE ADVERSE consequences consumption of pan masala/gutkha may pose to public health, it is hard to see how the Supreme Court could have sustained the ban that Maharashtra and a few other States thought it fit to impose. The Court has rightly held as untenable the exercise of power conferred on the State authorities under the law on prevention of food adulteration, to ban commerce in these substances. This legislation is primarily a consumer protection measure aimed at levelling the uneven relationship between producers and their intermediaries at one end, and consumers, at the other. Thus, under this law, the substitution of some substance in a food article is an offence if the resultant mixture is not what the purchaser had in mind. That the additive is not per se injurious to health is irrelevant in this context.

True, the legislation does deal with aspects of health as when it talks about unsanitary conditions of manufacture or adulteration by the use of unapproved preservatives and colours or when used beyond permissible limits. But from a public health perspective, the ill-effects of the consumption of tobacco and related products are of a much wider import and have ramifications on the livelihood of a vast section of the farming community. To argue, therefore, that the law on food adulteration envisaged consumer injury from the use of tobacco and related substances would prima facie go far beyond the legislative intent. This proposition is only reinforced by the fact there is a full-fledged law that merely regulates the advertising and sale to minors of tobacco and related products, but otherwise permits commerce in them. Even a literal interpretation of the relevant provisions of the law that the States invoked to impose the ban suggests that its application in the instant case is misconceived. It speaks of a ban on commerce in a product which `for the time being' so declared by the State in the interest of public health. The reference to the words `for the time being' is significant, intending as it does, to counter a situation where there may be some uncertainty whether a particular additive or preservative is harmful to public health. Therefore, as a matter of abundant caution, commerce in that product is suspended till a final conclusion is reached.

None of this is to suggest that tobacco is a harmless substance. There is enough scientific evidence to show that its consumption in any form heightens the risk of contracting a variety of ailments. But legislative initiatives aimed at curbing usage are hardly the answer to such public health challenges. Also, the degradation over the years, in the quality of enforcement has only made prospects of ensuring desirable public outcome through legislative fiats all the more bleak. Certainly nothing in the public experience in legislating against consumption of alcohol suggests that the case of tobacco is going to be different. Worse, the kind of selectivism that States have sought to impose in the case of tobacco where the substance is all right in some form but not in others, is hardly an advertisement for principled governance.