Upendra Bhojani, Pragati Hebbar, Vishal Rao, Vandana Shah
Published July 15, 2014
This year marks the 50th anniversary of the US Surgeon General’s report that first stated smoking was dangerous and associated with serious diseases, the list of which has since only expanded.1 Tobacco use kills around 6 million people each year, with almost 80% of these deaths occurring in low- and middle-income countries.2 Therefore, reducing tobacco use can be seen as a critical state obligation towards the realization of the highest attainable standard of health, and rights-based approaches to tobacco control have been documented.3
Public interest litigation has emerged as an important tool in many human rights movements, including tobacco control in South Asia.4 Here, we examine the role of litigation in claiming health rights, in this case tobacco control.
We reviewed all major litigation related to tobacco control in India from 1997-2014 and selected cases from other countries in South Asia. We analyzed these cases to determine the success of the litigation as an advocacy tool. We considered two major contexts: first, litigation that sought a new legal framework or improvements in the existing legal framework in the country, and second, litigation seeking interpretation and/or enforcement of the prevailing legal framework.
Litigation seeking a new legal framework
Cases have been litigated in many countries in the absence of a specific legal framework for tobacco control and have catalyzed the development of an appropriate legal framework or the enhancement of the existing legal framework.
More than 35 years ago, India adopted The Cigarettes (Regulation of Production, Supply and Distribution) Act 1975, the first nationwide specific legislation on tobacco control in India.5 This legislation concerned cigarettes, a form of tobacco used far less frequently in India than beedi smoking or smokeless tobacco. This legislation mandated only one tobacco control measure: written health warnings (not illustrations) on cigarette packs.
As the public became aware of the dangers of secondhand smoke, two non-legal experts filed public interest litigation in Kerala (Southern India) demanding prohibition of smoking various forms of tobacco in public places. In 1999, the High Court passed an order prohibiting tobacco smoking in public places in Kerala.6 The court relied on the right to life accorded in the Indian constitution, the Air (Prevention and Control of Pollution) Act, 1981, and the Indian Penal Code that enabled tobacco smoking in public places to be positioned as a form of air pollution, as well as a public nuisance.
Following this decision, a senior leader of the Indian National Congress party filed another case with the Supreme Court of India, resulting in both national and state governments prohibiting tobacco smoking in public places in 2001.7 These court rulings on smoke-free public places were subsequently incorporated into the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, which prohibited smoking in public places across India.
The High Court of Bangladesh, in the Voyage of Discovery case, consolidated two different cases on tobacco advertising.8 In the first case, the petitioner sued the government of Bangladesh for failing to adequately enforce a statutory health warning on tobacco products. The second case challenged British American Tobacco’s use of a touring luxury yacht to advertise cigarettes. Drawing on the right to life and liberty as guaranteed by the Bangladesh Constitution, the petitioner urged the court to declare advertising tobacco products illegal. The court, among other actions, directed the government to take steps to restrict tobacco production and smoking in public and prohibited certain forms of advertising and promoting tobacco products. This judgment paved the way for the comprehensive tobacco control law that Bangladesh adopted in 2005.
Litigation has catalyzed government action to extend tobacco control laws in several other instances as well. One example is a piece of public interest litigation in Rajasthan (Western India) submitted by the Indian Asthma Care Society, which in 2007 successfully challenged the use of plastic material in the packaging of chewing tobacco products.9 Litigation in various Indian states has led to state governments banning gutka and pan masala.10 Subsequent litigation resulted in the Supreme Court of India requiring that state governments file compliance reports on their efforts toward banning the manufacturing and sale of gutka and pan masala (widely-used manufactured chewing tobacco products) containing tobacco or nicotine. The court demanded the immediate compliance of all states.11
Litigation has also revealed gaps in tobacco control policies and legislation, while also helping to clarify the intent of the law. Historically, governments in India have had conflicting interests in tobacco control.12 Links between governments and the tobacco industry have influenced public policy. For example, the Institute of Public Health, a not-for-profit organization working on tobacco control in Karnataka (Southern India) used public interest litigation to challenge the government’s participation in, and financial support of, a global tobacco industry event. This resulted in a court order that not only prevented government participation in and financial support of the event, but also instructed the government to enact a policy to prevent future tobacco industry influence on government decisions.13
In 2009, a group of public health advocates in Indonesia filed a petition to clarify the intent of the public health law, which only stated that graphic health warnings may accompany the written warnings on tobacco products, even though penalties had been imposed when packs had not included graphic warnings.14 The court drew on an earlier case to confirm that graphic health warnings were required.
In summary, health rights litigation has been successful when demanding government intervention on tobacco control where no applicable state or national legislation existed, or where existing legislation did not adequately safeguard public health. Litigation used public interest, prevailing laws (not always specific to tobacco control), and international conventions. The result was the realization of health rights through creation of smoke-free public places, bans on advertising, limitations on the sale of tobacco products, and prohibition of tobacco industry interference in public policy making.
Litigation demanding enforcement of legal frameworks
The role of litigation becomes more complex when used to demand enforcement of existing legislation. It has been used to address enforcement challenges at two levels: implementing regulations or other regulatory mechanisms and demanding government action in response to specific legal violations.
Litigation in the latter group has generally yielded positive outcomes for tobacco control advocates. Examples of success in India include the ban on Marlboro cigarette advertisements on motorcycle helmets in Tamil Nadu (Southern India); the ban on government sponsorship of a tobacco industry meeting in Bangalore city; and the removal of tobacco advertisements from public transport vehicles in Ahmedabad city and Gujarat (Western India).15 These cases were initiated by individuals and organizations working on tobacco control and were generally decided in a short time with outcomes in favor of the petitioners.
Despite favorable court rulings, India’s weak enforcement mechanisms generally resulted in only short-term success. For example, while public interest litigation by Cancer Patients Aid Association was successful in seeking stricter implementation of legislation to prevent the sale of tobacco products to minors in Bangalore, and the relevant government department issued directives to apply the law, the successful litigation had little impact because of a lack of enforcement on the ground. The court eventually ordered enforcement monitoring whereby the government authority and the petitioner were to jointly oversee enforcement for a set period of time.16 Similarly, the World Lung Foundation (South Asia) requested better enforcement of the law to prevent the sale of tobacco products near educational institutions in Delhi. The court ordered that police establish a specialized task force within three days.17 In another instance, the Voluntary Health Services in Kerala sought stricter implementation of the national tobacco control legislation. In response, the court ordered government authorities to enforce the law and suggested the formation of committees at school, district, and state levels to monitor and take action on legal violations.18 While such arrangements help enhance the enforcement of law in the short-term, they have limited effect over time and across jurisdictions because they are not embedded in routine enforcement mechanisms of the various government agencies involved in enforcing tobacco control laws.
Generally, compliance with tobacco control laws remains poor in India. Even with prohibitions on tobacco smoking in public places, as well as on tobacco advertising, research shows that 29% of adults have been exposed to secondhand smoke in public places, and 64.5% of adults saw tobacco advertisements in 2009-2010.19 Despite the prohibition on sale of tobacco products to children under the age of 18, 56.2% of children surveyed had been able to purchase cigarettes from tobacco shops.20
Use of litigation by tobacco industry to hinder tobacco control
The tobacco industry has long engaged in litigation in its efforts to hinder the implementation of tobacco control laws in India and other countries. It has filed numerous cases in India’s state and higher courts to challenge The Cigarette and Other Tobacco Products Act, 2003.21 These cases challenged all the major provisions of the law, including the prohibition of smoking in public places, the display of graphic warnings on tobacco products, restrictions on the sale of tobacco products, restrictions on tobacco advertisements at the point of sale, and restrictions on display of tobacco products in films and television programs.22
In India, the tobacco industry has used the courts to challenge actions taken by state and municipal governments to ban commercial use of hukka (water pipes) containing tobacco or nicotine (for example, litigation by Concepts & More), use of plastic in packaging of chewing tobacco products (for example, litigation by Miraj Products Pvt. Ltd.), and manufacturing and sale of gutka and pan masala (for example, litigation by Ghoi Foods Pvt. Ltd., among others).23
Internationally, tobacco companies including Philip Morris and British American Tobacco have used litigation to oppose health warnings, most recently in Australia, which tried to implement plain packaging of tobacco products.24 Many of these court actions have weakened the original laws and delayed the enforcement laws related to such matters as smoke-free areas, tobacco advertisement at the point of sale, graphic warnings on tobacco products, and ban on commercial use of hukka. Some cases have even overturned the regulations of state and municipal governments. Even unsuccessful litigation by the industry (e.g. challenging the ban on gutka and pan masala by several state governments) intimidate governments trying to control tobacco.
In this brief commentary, we reflected on the role of litigation in achieving effective tobacco control in India, and thereby respecting, protecting, and fulfilling health rights. We did so by reviewing recent litigation intended to advance tobacco control in India and selecting cases from other South Asian countries.
We found that litigation has played an important role in catalyzing government action on issues for which no specific legal framework existed and often served as precursor for the development of an appropriate legal framework. Here, judicial activism in India, using public interest litigation, is noteworthy.
We also found that litigation seeking remedy for specific legal violations is more likely to succeed and have a lasting impact. However, when used to demand better enforcement of existing legal frameworks, litigation yielded limited impact in spite of favorable court decisions. Strengthening government enforcement machinery is required as a follow-up to court decisions directing the enforcement of existing laws.
Upendra Bhojani is a faculty member at the Institute of Public Health, Bangalore.
Pragati Hebbar is an advocacy officer at the Institute of Public Health, Bangalore.
Vishal Rao is a consultant in tobacco control at the Institute of Public Health, Bangalore.
Vandana Shah is director, South East Asia Programs at the Campaign for Tobacco-Free Kids, Washington, D.C.
1. US Department of Health and Human Services. The health consequences of smoking – 50 years of progress: A report of the Surgeon General (Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2014), p. 3. Available at http://www.surgeongeneral.gov/library/reports/50-years-of-progress/index.html
2. M. Eriksen, J. Mackay, and H. Ross. (4th ed.) The tobacco atlas. (Atlanta, GA: American Cancer Society; New York, NY: World Lung Foundation, 2012). pp. 16. Available at www.TobaccoAtlas.org
3. C. Dresler and S. Marks, “The Emerging Human Right to Tobacco Control,” Human Rights Quarterly 28/3 (2006), pp. 599-651. Available at https://www.hsph.harvard.edu/wp-content/uploads/sites/580/2012/10/spm_emerging_human_right_tobacco_ctrl.pdf; C. Dresler, H. Lando, N. Schneider, H. Sehgal, “Human rights based approach to tobacco control.” Tobacco control, 21 (2012), pp. 208-211.
4. “Battle for tobacco control – the Indian experience,” in K.S. Reddy, P.C. Gupta (eds.), Report on tobacco control in India (India, Ministry of Health and Family Welfare, 2004), pp. 151 – 232; S. Hossain, S. Malik, and B. Musa, Public interest litigation in South Asia – Rights in search of remedies (Dhaka, Bangladesh: The University Press Limited (UPL), 1997).
5. The Government of India. The Cigarettes (Regulations of Production, Supply and Distribution) Act, 1975. (India, 1975). Available at www.legalcrystal.com/acts/133259
6 K. Ramakrishnan and Anr. vs. State Of Kerala and Ors. (July 12, 1999), AIR 1999 Ker 385 (The Kerala High Court, India). Available at http://indiankanoon.org/doc/1480636
7. Murli S. Deora vs. Union of India and Ors. (November 2, 2001), AIR 2002 SC 40, 2002 (1) ALD 88 SC, 2001 (6) ALT 35 SC (The Supreme Court of India) Available at http://indiankanoon.org/doc/1495522.
8. Islam et al. vs. Bangladesh. (February 7, 2000), WP 1825 of 1999 (The High Court of Bangladesh). Available at http://www.tobaccocontrollaws.org/files/live/litigation/496/BD_Voyage%20of%20Discovery.pdf
9. Ankur Gutkha vs. Indian Asthama Care Society and Ors. (April 3, 2013), SLP(C) No.16314/2007 (The Supreme Court of India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20130403-ankur-gutkha-v.-india-asthma-c
10. Indian Dental Association UP State and another vs. State of UP and another. (September 17, 2012) (PIL) No. – 19126 of 2012 (The High Court of Allahabad, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20120917-indian-dental-association–of-; Lal Babu Yadav vs. The State of Bihar and Ors. (July 10, 2012) No. 10297 (The High Court of Patna, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20120710-yadav-v.-state-of-bihar,-et-al; M/S Omkar Agency vs. The Union of India and Ors. (July 20, 2012) No.10702 of 2012 (2) (The High Court of Patna, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20120720-omkar-agency-v.-union-of-india; M/S R.K. Products Company vs. The Union of India and Ors. (July 20, 2012) No.12871 of 2012 (2) (The High Court of Patna, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20120720-ms-r.k.-products-company-v.-un.
12. U. Bhojani, V. Venkataraman, and B. Mangnawar. “Public policies and the tobacco industry,” Economic and Political Weekly xlvI/28 (2011), pp. 27–30.
13. The Institute of Public Health vs. The State Government of Karnataka and Ors. (September 17, 2010) W.P. No. 27692/2010 (The High Court of Karnataka, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20100917-the-institute-of-public-health; The Institute of Public Health vs. The State Government of Karnataka and Ors. (February 8, 2011) W.P. No. 27692/2010 (The High Court of Karnataka, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20110208-the-institute-of-public-health.
14. Application for judicial review of elucidation of article 114 of law no. 36 of 2009 about health, ruling in case 43 (July 29, 2011) Number 43/PUU-IX/2011 (The Constitutional Court of the Republic of Indonesia). Available at http://www.tobaccocontrollaws.org/files/live/litigation/644/ID_Judicial%20Review%20of%20Article%20114.pdf.
15. R. Arul vs. The Secretary to Government, Health, and Family Welfare Department and Ors. (November 27, 2012) W.P. No.26527 (The High Court of Madras, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20121127-marlboro-motorcycle-helmets; The Institute of Public Health (2010, see note 13); Amarsinh Z Choudhari vs. State of Gujarat and Ors. (December 22, 2010) Special Civil Application No. 4848 of 2009 (The High Court of Gujarat, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20101222-choudhari-v.-state-of-gujarat-
16. The Cancer Patients Aid Association vs. The State of Karnataka and Ors. (March 29, 2011) W.P. No. 17958/2009 GM-RES-PIL (The High Court of Karnataka, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20110329-cancer-patients-aid-associatio
17. World Lung Foundation South Asia vs. Ministry of Health and Family Welfare, India. (February 2, 2011) W.P. (C) 7540/2010 (The High Court of Delhi, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20110202-world-lung-foundation-south-as
18. Kerala Voluntary Health Services vs. Union of India et al. (March 26, 2012) WP No. 38513 (The High Court of Kerala India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20120326-kerala-voluntary-health-servic
19. Ministry of Health and Family Welfare, Global Adult Tobacco Survey (GATS) Factsheet – India: 2009-2010. (New Delhi, 2010). Available at http://www.aftcindia.org/pdf/File%2010.pdf
20. World Health Organization, Global Youth Tobacco Survey (GYTS) Factsheet. 2009. India. (India, 2010). Available at http://www.who.int/fctc/reporting/Annexoneindia.pdf
21. The Government of India, The Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. (India, 2003). Available at http://www.mohfw.gov.in/WriteReadData/l892s/COTPA.pdf
22. Union of India vs. ITC Ltd. India. (September 29, 2008) Diary No. 28322 (The Supreme Court of India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20080929-union-of-india-v.-itc-ltd; M. Arora and A. Yadav, “Pictorial health warnings on tobacco products in India: Sociopolitical and legal developments.” The National Medical Journal of India 23/6 (2010), pp. 357–359. Available at http://nmji.in/archives/Volume-23/Issue-6/Medicine-and-Societies-II.pdf; Naya Bans Sarv Vyapar Association vs. Union of India and Ors. (November 9, 2012) W.P. No.7292/2011 (The High Court of Delhi, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20121109-naya-bans-sarv-vyapar-assoc.-v; Health of Millions vs. Union of India and Ors. (July 22, 2013) Nos. 5912-5913/2013, SLP(C) Nos. 413-414/2013 (The Supreme Court of India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20130722-health-for-millions-v.-union-o; Mahesh Bhatt vs. Union of India and Ors. (January 23, 2009) Writ Petition (Civil) No. 18761 of 2005 (The High Court of Delhi, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20090123-mahesh-bhatt,-et-al.-v.-union-.
23. Concepts and More vs. Bruhad Bengaluru Mahanagar Palike et al. (March 8, 2012) WP No. 16820 (The High Court of Karnataka, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20120308-concepts–more-v.-palike,-et-a; Berrys Hotel (MOCHA), et al. vs. Municipal Corporation of Greater Mumbai, et al. (August 11, 2011) WP-L-1531-2011 (The High Court of Bombay, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20110811-berrys-hotel-mocha,-et-al.-v.-; Miraj Products Pvt. Ltd. vs. Indian Asthama Care Society and Ors. (February 17, 2011) SLP (Civil) No(s). 19467-19469/2007 (The Supreme Court of India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20110217-miraj-products-pvt.-ltd.-v.-in; Ghoi Foods Private Limited vs. UOI. India. (May 7, 2012) WP No. 3131 (The High Court of Madhya Pradesh, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20120507-ghoi-foods-private-limited-v.-.
24. Philip Morris Asia Limited vs. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12. Available at http://www.hcourt.gov.au/cases/case-s389/2011.