Indian Journal of Public Health

REVIEW ARTICLE
Year
: 2017  |  Volume : 61  |  Issue : 5  |  Page : 25--28

Using public interest litigation for tobacco control: Insights from India


Jagdish Kaur1, Arvind Vashishta Rinkoo2, Ranjit Singh3,  
1 Regional Advisor, Tobacco-Free Initiative, Regional Office for South-East Asia, World Health Organization, Faridabad, Haryana, India
2 Freelance Public Health Consultant, Faridabad, Haryana, India
3 Legal Consultant, National Tobacco Control Cell, Ministry of Health and Family Welfare, Government of India, India

Correspondence Address:
Arvind Vashishta Rinkoo
Freelance Public Health Consultant, 15/8, Faridabad, Haryana
India

Abstract

The Indian notion of “Public Interest Litigation (PIL)” represents a moral and humane process for providing justice to an individual or a group in matters relating to infringement of fundamental rights or denial of civil privileges. The goal of PIL in India is to counter governmental lawlessness, administrative deviance, and exploitation of disadvantaged groups by denying them their rights and entitlements. Although this paper selectively describes the use of the PIL mechanism for ensuring implementation of large graphic health warnings on packages of tobacco products in India, there is a sufficient published literature to corroborate the successful use of this mechanism in India in different tobacco control settings. In fact, over the years, this legal tool has allowed the tobacco control community in India, to extensively promote human rights approach to tobacco control. In the wake of growing interference of tobacco industry worldwide, this paper explores PIL as a potent and effective tool for claiming public health rights related to tobacco control. The PIL has considerable potential to be used for enforcement of tobacco control measures and for stopping tobacco industry from engaging in activities which are detrimental to the health of the people at large. It is important to continuously identify potential avenues through which lessons and recommendations pertaining to PIL could be incorporated into the WHO Framework Convention on Tobacco Control implementation plans and guidelines, with special focus on different intercessional mechanisms that are available from time to time. To set the ball rolling, the authors suggest two such avenues.



How to cite this article:
Kaur J, Rinkoo AV, Singh R. Using public interest litigation for tobacco control: Insights from India.Indian J Public Health 2017;61:25-28


How to cite this URL:
Kaur J, Rinkoo AV, Singh R. Using public interest litigation for tobacco control: Insights from India. Indian J Public Health [serial online] 2017 [cited 2019 Aug 22 ];61:25-28
Available from: http://www.ijph.in/text.asp?2017/61/5/25/214899


Full Text

 Tobacco Control in India



India is the second largest consumer of tobacco products worldwide with more than 275 million adults consuming different tobacco products, including myriad of smokeless tobacco (ST) products.[1] It has a comprehensive tobacco control Act, “the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act (COTPA 2003),” in place. Section 7 of this act provides for depiction of pictorial health warnings on packages of all tobacco products. In 2004, India ratified the WHO Framework Convention on Tobacco Control (WHO FCTC), the first international public health treaty negotiated under the auspices of the WHO. Unfortunately, the tobacco industry interference continues to be one of the greatest threats in advancing tobacco control in India. The industry claims that the future of thousands of bidi workers and tobacco farmers across India would be at stake if effective tobacco control measures are implemented.[2] Likewise, the growing interference of ST tobacco conglomerates in policy formulation is particularly worrisome.[3]

 Concept of Public Interest Litigation



The concept of public interest litigation (PIL) first emerged in the United States. However, the prime focus of PIL in the United States is on public participation in governmental decision-making. Besides, PIL in the United States requires a great deal of expenditure, thus limiting its exercise to individuals and firms with adequate financial resources, that too in limited legal remedies.[4] In contrast, the Indian notion of PIL represents a moral and humane process in providing justice to an individual or a group in matters relating to infringement of fundamental rights or denial of civil privileges. The goal of PIL in India is to counter governmental lawlessness, administrative deviance, and exploitation of disadvantaged groups by denying them their rights and entitlements. Notably, in India, the Supreme Court rules of locus standi, or the eligibility of a person to invoke the jurisdiction of the courts, are so relaxed that anyone asserting a violation of fundamental rights can file a claim in one of the appellate courts.[4] A PIL in India may be introduced in a court of law either by the court itself (suo motu) or by any public-spirited individual or a nongovernment organization (NGO). Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance, the “right to life” in Article 21 of the Indian Constitution has been expanded to include “right to health.”[5] The substantive recognition of the right to health as essential to living with human dignity has thus allowed the judiciary to directly address human suffering by guaranteeing the social entitlements and conditions necessary for good health. Litigation has played an important role in catalyzing government action on issues for which no specific legal framework existed and often serves as precursor for developing appropriate legal frameworks or better enforcement of existing legal frameworks.[6]

 Impact of Tobacco Pack Pictorial Warnings



There is ample scientific evidence to suggest the positive impact of health warnings on cigarette packs, including tobacco users' intentions to quit, their thoughts about health risks, and their engaging in cessation behavior.[7],[8],[9] Studies indicate that the impact of health warnings depends on their size and design, whereas obscure text-only warnings appear to have little impact, pictorial health warnings that elicit strong emotional reactions are significantly more effective.[10] Although comprehensive evidence on the effectiveness of these warnings on packages of ST products is currently lacking,[11] available research suggests positive impact of such warnings on users of ST products.[12],[13]

 Indian Success Story



The Government of India was stuck in a long-drawn legal battle with the tobacco industry, once rules and guidelines were published to implement different provisions of COTPA.[14] On the issue of implementing the provisions of section 7 of this act, the judiciary came to the government's rescue when an order was passed by the High Court of the State of Himachal Pradesh on a PIL, thereby making it possible for the government to enact the “Packaging and Labeling Rules” in 2006. The rules mandated health warnings to be displayed on packages of all tobacco products, occupying at least 50% of the principal display area (PDA) on both sides of the panel and to be rotated every year or earlier. Again, the tobacco industry made hue and cry by arguing the impending loss of livelihood of tobacco farmers and workers.[15] The government was forced to constitute a “Group of Ministers” to examine the issue. The “Group of Ministers” eventually decided to water down the strong pictorial warnings. Consequently, the “Packaging and Labeling Amendment Rules” were enacted in March 2008, mandating the warnings to occupy 40% of the PDA, limited only to the front panel of the packages of tobacco products. Separate pictorial and text warnings were published for the smoking and smokeless forms of tobacco products packages. However, these rules could come into effect only on May 31, 2009 when the Supreme Court of India intervened on a PIL filed by a NGO, thus deciding the legal battle in favor of the government. Still, the tobacco industry did not rest and mounted pressure from various fronts, forcing the government to increase the interval for rotation of the pictorial warnings from 1 year to 2 years.[15] At the same time, the manufacturers of tobacco products were given the flexibility of choosing the pictorial warnings from a set of four warnings. Ironically, such flexibility is not in alignment with the provisions of COTPA or the rules enacted under it.

In light of the growing global and regional best practices, the government constituted a “Committee of Experts” in 2014 to review the issue of pictorial health warnings on tobacco products packages. Based on its recommendations, the “Packaging and Labeling Amendment Rules 2014” were enacted on October 15, 2014, mandating display of pictorial health warnings on 85% of the PDA of tobacco product packs on both sides (60% for picture and 25% for text). A minimum size of the pack warnings was also mandated to counter the industry's tactic of manipulating the mandatory warnings by changing the size and shape of packs of various tobacco products. A set of two strong and field-tested warnings, each for smoking and ST products, were published. The said rules came into effect since April 1, 2015. However, the tobacco industry, especially the bidi industry, once again mounted pressure and opposed larger pictorial warnings by bringing the livelihood issue of tobacco farmers and workers to the center stage.[16] In March 2015, succumbing to the pressure, the government referred the matter to a “Parliamentary Committee on Subordinate Legislation.” The committee was assigned to scrutinize the extant rules and submit a report to the parliament. The government deferred implementation of these rules in view of the matter being under examination. Meanwhile, a PIL was filed in the High Court of the State of Rajasthan against this deferment. In the larger public interest, the high court stayed the operation of the corrigendum and directed the government to enforce the rules with immediate effect. On September 24, 2015, the government relented by deciding that the new rules on “tobacco pack pictorial warnings” would come into effect from April 1, 2016. Thus, eventually, the new rules came into force from April 1, 2016.

 Leveraging the Concept of Public Interest Litigation in Different Tobacco Control Settings



Although this paper selectively describes the use of the PIL mechanism for ensuring implementation of large graphic health warnings on packages of tobacco products, there is a sufficient published literature to corroborate the successful use of this mechanism in India, in different tobacco control settings. Notably, litigation as a tool for tobacco control has been in existence for years in the United States and recently in countries such as Brazil and South Africa.[17] However, as already discussed, the Indian notion of PIL is categorically different with greater emphasis on the moral and humane process in providing justice in matters relating to infringement of fundamental rights or denial of civil privileges.[4] Over the years, this has allowed the tobacco control community in India, to extensively use this mechanism to promote human rights approach to tobacco control-public smoking was declared violative of article 21 of the constitution;[18] the Supreme Court banned smoking in all public places and public transports;[18] tobacco manufacturers were restrained from using plastic in the packaging of ST products;[19] PIL in various states led state governments to ban gutkha, an ST product;[6] subsequent litigations resulted in the Supreme Court of India directing the state governments to file compliance reports on their efforts toward effectively banning gutkha in their jurisdictions;[6] and a PIL resulted in a court order that not only prevented the participation of the government in a global tobacco industry event but the court also instructed the government to enact a policy to prevent future tobacco industry influence on government decisions.[6]

Notably, all these PILs were initiated by individuals or NGOs working on tobacco control and were generally decided within a short time with outcomes in favor of the petitioners. In the wake of growing interference of tobacco industry and lack of sustained political will,[20] litigation appears to be a potent and effective tool for claiming public health rights related to tobacco control. In fact, the PIL has a considerable potential to be used for enforcement of tobacco control measures and for stopping tobacco industry from engaging in activities which are detrimental to the health of the people at large. Thus, it is important to continuously identify potential avenues through which lessons and recommendations pertaining to PIL could be incorporated into FCTC implementation plans and guidelines, with special focus on different intersessional mechanisms that are available from time to time.

In the present context, to set the ball rolling, the authors would like to suggest two such avenues.

First, one of the mandates of the expert group on article 19 of the WHO FCTC was to identify available options for developing legislation for parties in the areas of civil and criminal liability. Notably, the working group in its final report during the seventh session of the “Conference of Parties,” (COP) the governing body of the WHO FCTC comprised of all the parties to the convention, identified adopting legislation to enable litigation to be pursued for enforcing existing tobacco control laws as one of the options for the parties. The expert group felt that litigation need not only be aimed at obtaining compensation but also can complement numerous other tobacco control measures, including enforcement of tobacco control laws.[21] Thus, moving a step further, it is important that the countries of the world, including those of the Southeast Asia Region, take note of the recent example from India and attempt to develop legal tools based on the Indian concept of PIL. The convention secretariat, in turn, needs to encourage and support parties to introduce necessary legislation, similar to the Indian notion of PIL, which can be subsequently used as an effective tool by parties to advance tobacco control in their respective jurisdictions. The convention secretariat should facilitate identification of potential expertise among international organizations and parties to assist countries in need of legal expertise for developing such legal tools largely based on India's PIL model and promote exchange of such expertise across regions to provision the required assistance to parties in need.

Second, the working group on sustainable measures to strengthen implementation of the WHO FCTC in its report during the seventh session of the COP7 identified tobacco industry interference in tobacco control policy development as one of the constraints impeding successful implementation of the provisions of the WHO FCTC globally.[22] Reasonably, based on India's example, it may be appropriate on part of the working group to be established to develop a draft medium-term strategic framework to guide the implementation of various provisions of the WHO FCTC, as per decision FCTC/COP7(13) of COP7,[23] to recognize PIL as an effective tool to counter tobacco industry interference worldwide and to accordingly recommend to the parties to introduce necessary legislation to develop a legal mechanism, using India's PIL model as a prototype.

Disclaimer

The opinions or views expressed in this article are solely those of the authors and do not express the views or opinions of the organization to which the authors are affiliated.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

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