On Wednesday, the government in one stroke prohibited the import and sale of certain products known as Electronic Nicotine Delivery Systems (in short, ENDS), popularly known as e-cigarettes, in the country. The prohibition itself was effectuated through a rather hurried manner, without deliberations by the elected representatives at the parliament, through an Ordinance.
The debate around the health effects of the products (ENDS) themselves it quite wide open. Whereas the government claims that they are harmful, the smokers who have switched to ENDS and growing body of International research and practices vouch for the fact that ENDS are substantially less harmful than conventional combustible cigarettes. The unusual haste around prohibition of ENDS, while the greater evil of tobacco cigarettes remains conspicuously under the radar of the government, is quite curious, if not suspicious.
Be that as it may, this piece is more about per se , the aspects of public policy of prohibition, rather than regulation, especially so, in case of addictive substances and also the mechanism of bringing in such public policies.
How effective are bans?
The fact that the complete prohibition by law on addictive substances has failed around the world is well documented in the annals of history. In 1914, the US Congress passed the Harrison Act, banning opiates and cocaine. Alcohol prohibition quickly followed, and by 1918 the US was officially a dry nation. That did not mean, however, an end to drug use. It meant that, suddenly, people were arrested and jailed for doing what they had previously done without government interference. Prohibition also meant the emergence of a black market, operated by criminals and marked by violence.
In 1933, marred by widespread organised crime, police corruption and violence, there was an earnest demand to repeal of alcohol prohibition and the return of regulatory power to the states. Most states immediately replaced criminal bans with laws regulating the quality, potency and commercial sale of alcohol; as a result, the harms associated with alcohol prohibition started to go on a downward spiral.
According to US economist Mark Thornton, prohibition in the US was imposed in order to reduce crime and corruption, solve social problems, and improve health and hygiene in America. Thornton, however, found that prohibition was a despicable failure on all counts.
Let’s talk about the Indian experience
Back home in India, the experiences have been not quite different. It is a documented fact in a plethora of studies, and fact-finding reports have evidenced that liquor prohibition by the state governments have little effect on the ground and on the contrary, have caused a rise in illicit trade; illicit liquor-related tragedies, loss of revenues, all covered up behind the public policy of prohibition, albeit, on paper.
One of the stated reasons for prohibition of ENDS is that they act as a gateway product to smoking for the adolescents and that they are prone to be abused by the youth. Well, that is indeed a grave concern which needs adequate redressal and constant vigilance.
However, where the government seems to be misguided is that such a vigilance can only be exercised if there is a mechanism of regulation. Under the shadows of a complete prohibition, illicit traffic of ENDS will thrive, the users (or rather abusers) will find a way to acquire them and the enforcement agencies will be at their complacent best, just as the case with the liquor bans. Clearly, the action of the government on ENDS does not meet the stated objective.
The means to end ENDS
Another aspect about the ENDS ban that raises eyebrows is the mechanism of bringing about the prohibition is the instrument of prohibition itself. An ordinance. An ordinance, in simple terms is a legislative action without the involvement of the legislature.
Ordinances are more like quasi-legislative powers vested with the executive, to be exercised in cases of urgency where the policy action cannot wait till the next sitting of the parliament. In 1987, the Supreme Court, in DC Wadhwa Vs State of Bihar, had clearly held that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the lawmaking powers of the legislature.
In this case, it is difficult to fathom what could have been the sudden and emergent situation that led the government to bring in an ordinance to prohibit ENDS, so much so, that it could not wait for the next winter session of the parliament barely two months away. Having noted that the debate on the effect of ENDS is at least a subject matter of debate and reportedly there are scientific evidences available that ENDS are substantially less harmful than conventional cigarettes, what was least warranted was that before a hasty decision is made and imposed on the people, a prior debate had taken place in the parliament that represents the people.
It may be reiterated that public policy of prohibitions, especially in respect of addictive substances have not worked in the past, nowhere is the world, as much in India. Nor does such policies have a fair chance of working in India.
Blanket prohibition on ENDS will, in all probability, only cater to illicit trade and that could not have been a policy objective of any government in a welfare state. Secondly, in a democracy, policy making needs to be democratic. Sans certain urgent and unsurmountable situations, ordinances are not the ordinary course of law creation and dispensation, so much so, for a subject like ENDS use that needs careful scientific and technical consideration.
Krishna Sarma, is managing partner and Bhaskar Bhattacharya partner at Corporate Law Group, a boutique law firm based out of New Delhi.
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