INTRODUCTION

The Indian government on the 5th December 2019 passed An Act to prohibit the production, manufacture, import, export, transport, sale, distribution, storage, and advertisement of electronic cigarettes in the interest of public health and to protect the people from harm caused by it. E-ciarettes are modern form of conventional combustible cigarettes. they are quite popular in the world and so was in India. These modern forms of cigarettes facilitated the youth to relinquish the Tar spitting conventional cigarettes which were more detrimental to their health and well-being. But the incessant popularity of these E-cigarettes lacked the endurance of perpetuity. They were blatantly banned by the government. Though it is being Banned the consumption of E-cigs is widespread in the country. The causation code worked and unsurprisingly the Black marketing of E-cigs spurred after the ban. Because of the lack of Regularization and standardization of E-cigarettes, people are consuming substandard E-cigs. This effectuating of an inverse culture of smoking substandard E-cigarettesis contrary to The object sought to be achieved by the banning of E-cigarettes. As usual, the government is oblivious.

FLOUTING THE RIGHT TO EQUALITY

Article 14 of the constitution of India guarantees equality before the law and equal protection of the law. The supreme court in the case of State of West Bengal v. Anwar Ali Sarkar (1) has time and again propounded the test to determine the validity of the state’s actions using the Doctrine of reasonable classification. To pass this test of the doctrine of reasonable classification.Two conditions must be fulfilled, namely,

(1) That the classification must be founded on an intelligible differentia, and
(2) That that differentia must have a rational nexus to the object sought to be achieved by the Act.

The differentia and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. The confirmed classification here is to be shown between conventional cigarettes and E-cigarettes which is Intelligible as well as easily differentiated as cigarettes are combustible, contain tobacco, are not powered by battery and puffing burns the tobacco and produce smoke whereas the E-cigarettes are non-combustible, contain nicotine, are powered by a battery and Puffing on the device heats the liquid, which produces vapor. So, it can be concluded that the classification is valid.

Now comes the second condition i.e. The differentia must have a rational nexus to the object sought to be achieved by the Act. The Object of the Impugned act is to ban e-cigarette are as follow:-

• In the interest of public health to protect the people from harm and for matters connected therewith or incidental thereto.
• Considering the highly addictive nature of nicotine
• Safety concern of flavors in combination with nicotine;
• Threat to the country's tobacco control efforts;
• hindrance in achieving the targets envisaged under Sustainable Development Goals.
• In the overall interest of public health as envisaged under Article 47 of the Constitution of India,

The question now is that is there any rational nexus between the differentia and the object sought to be achieved by the act. Manifestly there is no rational nexus between the same. The following are the contentions for the same:

The doctrine of reasonable classification requires that equals be treated equally. Even if, public health is the criterion, e-cigarettes are as harmful as conventional cigarettes (which they are not, according to present scientific evidence), that one is banned and the other is regulated violates the test of reasonable classification. Exercises of police power must be justified under Indian Constitutional Law against the standards of the doctrine of arbitrariness, which prohibits non-application of mind that does not adequately consider the public interest. A complete ban, neglecting less drastic measures such as a regulatory framework in line with the WHO’s recommendations, is arbitrary and disproportionate, and therefore, violates the fundamental right to equal treatment.

There exists a selective nature of the ban. George Orwell in his book Animal Farm has momentously pointed out the system of differential and preferential treatment. Which can be summaries as –

“All cigarettes are equal, But some cigarettes are more equal than others.”

The State has banned e-cigarettes arguing that they are addictive in nature, injurious to health and that their popularity is assuming "epidemic" proportions. But in this exercise, what the state conveniently failed to mention with equal (if not more) enthusiasm was that conventional cigarettes are far more injurious to health than e-cigarettes. There are squillions of reports and research papers affirming that smoking cigarette is injurious to health, still, the government has not imposed a blanket ban on the manufacturing let alone selling of cigarettes, on the other hand, the government has placed a wide-ranging blanket ban on the Ecigs. The nicotine consumption and the addiction that follows after puffing conventional cigarettes and other tobacco products is much higher than the one caused due to e-cigarettes. If the State was indeed concerned about youth and public health, common sense tells us that the attack should have been directly on regular cigarettes and other tobacco products.

The state of India While announcing the ban, Finance Minister referred to "reports" that found e-cigarettes to be addictive and injurious to health. They also referred to the World Health Organisation's opposition to e-cigarettes. But what they did not refer to was the voluminous scientific literature (especially of the World Health Organisation) on the lakhs of tobacco-related deaths in India every year, most of which are due to the use of regular cigarettes, cigars, etc.

Threats to the country's tobacco control efforts, and hindrances in achieving targets envisaged under Sustainable Development Goals, National Monitoring Framework for Prevention and Control of non-communicable diseases, and National Health Policy, 2017 are other objects cited for the justification of the Ban. Reading these well-intended goals, one wonders how India's tobacco control efforts can be free from "threats" if normal cigarettes (which unlike e-cigarettes are the most consumed tobacco products) are kept available in the market. One fails to understand how the learned health ministry concluded that keeping conventional cigarettes outside the purview of the ban will not pose a "threat to the country's tobacco control efforts". If the government feels a ban is a possible solution to India's alarming tobacco consumption levels, why not attack the root rather than attacking a secondary cause?

References:-

(1) State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75 37)

(2) PIB Delhi. (2019, September 18). Cabinet approves the Promulgation of the Prohibition of Electronic Cigarettes, Ordinance. Press Information Bureau

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