A CRITIQUE OF THE PROPOSED AMENDMENT OF THE COTP ACT, 2003

Suvigya Saxena*

The development of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) was a parallel development to the Framework Convention on Tobacco Control (FCTC), a global resolve on tobacco control. The Government of India had signed the FCTC and brought the COTPA to light simultaneously in May 2004; however, the FCTC came into force on February 27, 2005 - nearly a year after the enactment of COTPA. Public health and welfare formed the basis and remained the thrust for the development of both the national and global regime against tobacco use. Tobacco, the single largest, preventable, cause of death in the modern world required nothing less than a global treaty that was comprehensive enough to cover all aspects including the cross-cutting issues involved in tobacco control.

The provisions concerning package warning as mentioned in Article 11 of the FCTC, are echoed in sections 7 to 11 of the COTPA 1 . Section 7 Clause (1) provided, in line with Article 2(1) of the FCTC 2 a stricter measure in mandating on every pack of cigarette and other tobacco products the specified warning including the pictorial depiction of skull and cross bones and such other warning as the Central Government may prescribe. The prescription of the law, in essence, was no doubt progressive in all respect but remains nothing more than a dead letter. Even though the enactment dates back to February 2004, the provision remained stillborn until mid-2006 when the Ministry of Health tried to bring the provision to life. With the July 2006 notification, the tobacco industry got into action and challenged the rule tooth and nail in number of High Courts across the country. Civil society encouraged a PIL in the Shimla High Court with a plea for the implementation of the law. The row of court battles caused further delay in actualization of these provisions.

Further, perhaps as a part of the industry's ploy, a furore was generated by taking recourse to unfounded religious reservations on the depiction of the skull and cross bones 3 . As a consequence, a GoM was assigned with the task of reconciling the whole issue and suggest the best way to enable the implementation of the notification. Surprisingly enough, the GoM recommended that the skull and cross bones be done away with from package warnings solely on the basis that it hurt the religious sentiments of certain sections of the society 4 . Shockingly, the Cabinet and the Ministry of Health have bought into this argument and have introduced an amendment to this effect in Parliament 5 . The only object behind the introduction of the Amendment, according to the Government, is the religious sentiments of certain sections of the society against the depiction of the skull and cross bones insignia.

The skull and cross bones is the only symbol used in any human preparation, in order to indicate content that is harmful for human use. It is no secret that all tobacco products contain harmful chemicals and carcinogens; but, surprisingly enough, they are sold without such indications as statutorily mandated on other products containing the same chemicals.

The larger legislative intent behind putting the warning on packets was to let the public (particularly those who are not literate) know the harmful and carcinogen content of the tobacco products, just by looking at them 6 . The standard warning messages yield no effect on the one-third of the Indian population that is illiterate. The only appropriate and most effective way to reach the most vulnerable sections of the population including tribals, slum dwellers and labourers are pictorial warnings. Most tobacco users want this information, and certainly want their children to have this information too. Further, in a multi-lingual country the uniform pictorial warning would bridge the language barrier, which the standard text warnings fail to do making people vulnerable in a different lingual community. Also package warnings are a good public health strategy because the cost of package warnings is paid for by tobacco companies, and not the Government. And no better insignia can be thought of than the skull and cross bones symbolizing the poisonous contents of tobacco. It is worth mentioning here that Article 25 of the Constitution of India places health unequivocally above the freedom of religion. Moreover, the interest of certain sections of the society can never be a consideration to throw the national health and well-being at risk. Besides, Article 47 7 , Article 51 (c) 8 (though both fall in Part IV of the Constitution 9 and Article 253 10 , respectively, warrant respect for international law and treaty obligations and give the parliament the power to legislate, to give effect to international agreements. India , being a party to the FCTC owes the obligation to respect the mandates under the first global health treaty. Besides the FCTC, the International Covenant on Economic, Social and Cultural Rights, the Constitution of the World Health Assembly, the Convention on Elimination of Discrimination against Women and the Convention on the Rights of the Child recognizes and reiterates the right of individuals to the enjoyment of the highest attainable standards of physical and mental health. The Constitution of the World Health Assembly clearly mentions that there can be no distinction of race, religion, political belief, economic or social condition in the enjoyment of the highest attainable standards of health as a fundamental right of every human being.

The notification of the Health Ministry dated 5th July 2006 prescribes the pictorial depiction of skull and cross bones on the packets of tobacco products as a part of the pictorial warning against the use of tobacco products. Unfortunately, the commendable step of the Ministry was and is being undermined under the tenuous pressure felt by the GoM. Hence the highest decision making body of the largest democracy sadly succumbed to the pressure, and decided to amend an otherwise sound Act.

By amending the COTPA and trying to make the pictorial depiction of the skull and cross bones optional, the Government has taken an unconstitutional decision to keep the public blind-folded and force many more innocent and illiterates to consume carcinogens which possibly could be avoided with the un-amended warning. This once and for all shall impale any possibility in the future to introduce such ideal pictorial warning; in effect eliminating the most effective way of communicating the message against tobacco use from the statute book. The decision is a manifest violation of the Constitution and the human rights of the individuals.

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* National Law Institute University , Bhopal