Courts in India, especially the Supreme Court, have been at the forefront of tobacco-control activism. Milestones in the journey against tobacco, including the prohibition of smoking in public areas, sale of tobacco products around educational institutions and prohibition on tobacco advertising have been possible because of mostly direct, and sometimes subtle, intervention by the judiciary.

When the Centre notified the Cigarette and other Tobacco Products (Packaging and Labelling) Amendment Rules 2014 mandating, among other things, pictorial health warnings covering 85 per cent of the packaging on all tobacco products, it was to come into effect from May 1, 2015. It was only a full year later (April 1, 2016) that the Amendment actually became effective, after a nudge from the Rajasthan High Court in a Contempt Petition.

Expectedly, multiple petitions were launched before different High Courts (HC) to resist and delay implementation of the 85 per cent pictorial requirement and some adverse interim orders also got passed. But this litigious journey of a united and powerful tobacco industry was arrested by the SC in May 2016, when all cases were transferred to the Karnataka HC that was specifically directed: “stay, if any, already granted by any High Court shall not be given effect to, till the cases are finally disposed of”.

The consolidated legal battle at the Karnataka HC culminated in the Court striking down Amendment Rules 2014 as a violation of the Constitution of India, in a December 2017 order. A vigilant challenge to this order was mounted before the SC in the vacation Bench even before a copy of the order was uploaded. And the SC directed the Registry of the Karnataka HC to upload the judgment saying that respondents could not claim any equity in the meanwhile.

In January 2018 , the SC stayed the Karnataka HC judgment and specifically held that “health of a citizen has primacy and he/she should be aware of that which can affect or deteriorate the condition of health. We may hasten to add that deterioration may be a milder world and, therefore, in all possibility the expression ‘destruction of health’ is apposite”. The matter is sub judice for a final determination from the SC.

Unique problems

In a developing country like India, many peculiarities exist, including tobacco barons who hold significant positions in governance, policy-making and implementation; tobacco is still promoted through the Tobacco Board under the Ministry of Commerce and Industry; Governments and PSUs are stakeholders and direct beneficiaries of sale of tobacco products; a large number of people below poverty line continue in the cultivation and processing of various tobacco products. There is also the unique problem of smokeless (oral) tobacco engulfing populations. This, in addition to the usual might of Big Tobacco resulting from the money and muscle power at their disposal. Any litigation against the tobacco industry invariably becomes a classic battle between ‘David and Goliath’.

Tobacco is the only consumer product with no useful or beneficial qualities, instead it causes death and disability. An interaction with an oncologist or his patient on tobacco products will leave you extremely grim and concerned at the dangerous prospect of India sitting on a fast-ticking cancer time-bomb. Tobacco is the only product that loses one-third of its consumers to death/disability, therefore this industry constantly needs to attract, enthral, entice and instigate the next generation to become tobacco consumers.

Larger pictorial health warnings reduce the area and opportunity available to tobacco companies to make their products attractive, cool, rebellious and macho. In fact, it ensures that tobacco products themselves become effective tools of spreading public health messages. Not surprisingly then, a fierce battle is being fought by the tobacco industry to resist larger pictorial health warnings.

The road ahead for larger pictorial warnings has to lead to “plain packaging” of all tobacco products, which involves removal of all branding by having generic, standardised and homogeneous packaging (thankfully, the SC is seized of this issue also). Countries like Australia, and reputed studies, have confirmed that plain packaging is less fashionable, cool, stylish and appealing, hence less likely to be chosen by a first-time user — an effective tool to stop the next generation of tobacco users.

The writer is a lawyer practising in the Supreme Court of India and involved in litigation against the tobacco industry. Views expressed are personal

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