The government is pushing the Supreme Court to apply a rarely used doctrine that would strip the $11 billion tobacco industry’s legal right to trade, an effort aimed at deterring tobacco companies from challenging tough new regulations.
New Delhi has, for the first time, asked the top court to classify tobacco as 'res extra commercium', a Latin phrase meaning 'outside commerce', according to a review of the previously unreported court filing by the Health Ministry on January 8.
If applied, the doctrine--which harkens back to Roman law--would have far-reaching implications: in denying an industry’s legal standing to trade, it gives authorities more leeway to impose restrictions. For example, the Supreme Court’s application of the doctrine to alcohol in the 1970s paved the way for at least two Indian states to ban it completely and allowed courts to take a stricter stance while regulating liquor - something constitutional law experts say could happen with tobacco if a similar ruling was made.
'The effects of tobacco are much more than even alcohol...It will be a fillip to this drive against tobacco,' said government lawyer, R Balasubramanian, who is acting on behalf of the Ministry of Health in pursuing the designation.
He, however, said the government is not discussing banning tobacco and the goal of invoking the Roman law doctrine was only to curtail the industry’s legal rights.
With an aim to curb tobacco consumption -- which kills more than 900,000 people each year in India ---the government has in recent years raised tobacco taxes, started smoking cessation campaigns and introduced laws requiring covering most of the package in health warnings.
But a court in Karnataka last month quashed those labelling rules after the tobacco industry successfully argued the measure was 'unreasonable' and violated its right to trade.
The government this month appealed the ruling in the Supreme Court, which put on hold the Karnataka court order. The top court will next hear the case on March 12.
In its filing, the government included 'res extra commercium' because it wanted to stop the industry from pursuing such arguments again, said Balasubramanian.
Seeking to apply the doctrine to tobacco, the government argued it should have the power 'to regulate business and to mitigate evils' to safeguard public health, the court filing showed.
Sajan Poovayya, a senior lawyer representing top cigarette maker ITC Ltd and Philip Morris International Inc’s Indian partner, Godfrey Phillips, said the industry’s legal rights would be severely limited if the court applied the doctrine to tobacco.
He said he would fight the government’s argument 'tooth and nail' and make a case that taking away the industry’s right to trade would imperil millions of Indian farmers who depended on tobacco for their living. The industry estimates 45.7 million people depend on tobacco for their living.
'India is a tobacco-growing country and there’s a need to look at the interest of those people who are already in the sector,' Poovayya said. 'Tobacco is not destructive to health. If tobacco is, sugar is as well.'
India’s tobacco labelling rules, which mandate 85 per cent of a cigarette pack’s surface be covered in health warnings, have been a sticking point between the government and the tobacco industry since they were enforced in 2016.
Mary Assunta, a long-time tobacco control advocate and a senior policy advisor at the Southeast Asia Tobacco Control Alliance, said she had never heard of a country applying the 'res extra commercium' doctrine to tobacco, but hoped India would set a precedent. 'Such a classification will help protect tobacco control measures from being challenged, particularly for developing countries where the bulk of the smokers are,' Assunta said.
The doctrine would open the door to an outright ban on tobacco sales if a state wished, said Pratibha Jain, a partner at law firm Nishith Desai Associates and a specialist in Indian constitutional law. 'It gives the state autonomy to completely ban trade in tobacco. It gives governments the constitutional cover that will protect future litigation. The industry will lose significant ground as your protection of right to trade is gone.' Reuters