On Wednesday, the Union Cabinet approved an ordinance to ban Electronic Delivery Systems (ENDS) more conventionally known as E-cigarettes, citing its ‘epidemic’ preference among the younger generation as a reason for the ban. The ban entailed that consumption, production, manufacturing, import, export, transport, sale, distribution, storage and advertisement of e-cigarettes would henceforth be illegal in India. In case of violation of the ban the cabinet has laid down the punishment of imprisonment of 1 year and a fine of Rs. 1 lakh with subsequent offenders having to face imprisonment of 3 years and Rs. 5 lakh as fine.
A striking feature of this move by the cabinet is that it has been brought about through an ordinance. The provisions for the promulgation of an ordinance are contained in Article 123 and Article 213 of the Indian Constitution, which repose the power with the President and the Governor respectively. The pari materia provisions hold that the President or the Governor should be ‘satisfied that circumstances exist which render it necessary for him to take immediate action’. Therefore, it permeates from the language of the Articles that two conditions are necessary before the promulgation of an ordinance. First, an intervening circumstance, second, it requires the satisfaction of the promulgating authority that immediate action is required. The Supreme Court in the case of Krishna Kumar Singh vs State of Bihar [(2017) 3 SCC 1] in the context of interpreting the two Articles held that necessity is distinguishable from desirability, the expression “necessity” coupled with “immediate action” conveys the sense that it is imperative due to an emergent situation to promulgate an Ordinance during the period when the legislature is not in session.
The question, therefore, arises is whether an emergent situation is indeed present that requires redressal through the promulgation of an ordinance. Briefly referring to the facts, the answer seems to be in the negative. Even though there has been a steady rise in the usage of ENDS, the industry in itself at the nascent stage constituting a market capitalisation of a paltry $15.6 million as opposed to the mammoth $10 billion tobacco market in India. Moreover, the growth of ENDS industry that has been termed alarming ‘epidemic’ is actually general ‘catch-up’ effect that new industry entrants witness before converging with the overall market demand, marking a sharp decline.
Secondly, while the tobacco industry is conclusively responsible for the death of 9 lakhs smokers each year, the negative health effects of ENDS are yet to be established. On the contrary, there are studies that have shown that ENDS can aid in reducing the dependence on Cigarettes and are demonstratively less harmful than conventional cigarettes in the absence of major carcinogenic compounds of tobacco.
Third, and most importantly, the government has at no point banned the demonstratively more harmful conventional cigarettes, and has only chosen to regulate it through the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003. With about 267 million smokers in India constituting the second largest population of smokers in the world, the government has not treated smoking conventional cigarettes as an ‘epidemic’. It is then, indeed hard to argue that the consumption of ENDS has reached epidemic proportions in the Indian markets.
There are, of course, certain risks associated with the consumption of e-cigarettes, and markets with higher penetrations like of USA have taken steps to regulate through state agencies like the Food and Drug Administration. However, given the debate around the health effects of ENDS is yet to extinguish itself, the government has jumped a parliamentary debate on a policy issue by outrightly banning them. A debate, which is all the more necessary as there is a considerable divergence between the Government and the Courts on whether ENDS are recreational devices or drugs, with Delhi High Court rejecting the classification of it being drugs earlier this year. It is a classic case of government transforming the desirability of regulating into an unexplained necessity of banning by a way of ordinance.
Postscript: Yet, another feature of the ordinance being promulgated without due thought is the fact that even production, manufacturing, and export have been banned. In the midst of an economic slowdown, even if the government doesn’t want its citizens to consume ENDS, it makes little sense to restrict their export to other countries where they have not banned them.