Special Undergraduate Series–The Doctrine of Vested Interest and India’s Unconstitutional Ban on E-Cigarettes

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Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution

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–Nihal Sahu and Vedantha Sai, B.A. LLB (Hons.) Students, The National University of Advanced Legal Studies, Kochi

On the 18^th of September, 2019, the President of India promulgated an ordinance prohibiting electronic cigarettes, imposing penalties up to one year of imprisonment and a fine of one lakh rupees for violating the ban. In spite of the immediate reactions of e-cigarette manufacturers, as well as various petitions in High Courts throughout the country, it is finally possible, as the smoke has settled, to examine the constitutionality of the ban. In this post, we advance a transformative reading of the presumption of constitutionality, arguing that it is concomitant with the test of arbitrariness under the Indian Constitution’s equality code.

While there exists evidence that e-cigarettes, which produce an aerosol by heating a complex solution of chemicals that may contain nicotine (though in lighter quantities), cause health problems, there is no conclusive evidence that they pose a long-term health risk comparable to that of conventional combustible cigarettes.  Cigarettes, however, remain merely taxed and regulated, while e-cigarettes and other vaping products are now flatly illegal. This is perplexing. Why do cigarettes, an acknowledged and proven health risk, remain freely available, while e-cigarettes are banned?

In this post, we argue that this logical discrepancy violates the Constitution of India. The argument is based on the conventional doctrines of reasonable classification, arbitrariness and proportionality (Part I). Further, the Government, has a vested financial interest in the largest tobacco company in India. Legalarguments are, of course, separate from the logical and public policy problems with the ban. We argue, however, in this circumstance, that claims generally seen as persuasive policy arguments shift the presumption of constitutionality and impose a direct burden on the state in the context of constitutional litigation by virtue of their vested interest (Part II). 

Part I—The Right to Equality and the Freedom of Profession

Article 14 guarantees equality before the law and equal protection of the law. Under the Supreme Court’s jurisprudence, state action is tested against Article 14 using the doctrine of reasonable classification – a twin-test that asks: first, whether there is an intelligible differentia (i.e. a basis for the classification); second,whether that basis had a rational nexus with the legitimate objective the state purports to achieve.

In the preamble to the Ordinance, two primary purposes are identified: to abide by the urging of the Conference of Parties to the WHO Framework Convention on Tobacco Control, which invited the parties to consider prohibiting or regulating e-cigarettes; and second, the protection of public health, as enjoined by India’s Directive Principles of State Policy. Both of them rest on the principal assumption of a health risk.

In this case, the only distinction between combustible cigarettes and electronic cigarettes is the nature of technology – the former uses combustion and tobacco leaves whereas e-cigarettes use liquid nicotine and a battery. But if the objective is to promote public health, e-cigarettes are, if anything, less harmful than combustible cigarettes.

Here, we think it important to note that constitutional challenges to the ordinance need not show that cigarettes are more harmful than e-cigarettes. The doctrine of reasonable classification requires that equals be treated equally. Even if, public health being the criterion, e-cigarettes are as harmful as conventional cigarettes (which they are not, according to present scientific evidence), that one is banned and the other is regulated violates the test of reasonable classification.

Exercises of the police power must be justified under Indian Constitutional Law against the standards of the doctrine of arbitrariness, which prohibits non-application of mind that does not adequately consider public interest. A complete ban, neglecting less drastic measures such as a regulatory framework in line with the WHO’s recommendations, is arbitrary and disproportionate, and therefore, violates the fundamental right to equal treatment.  

Part II—The Presumption of Unconstitutionality: The Doctrine of Vested Interest

Less drastic alternatives that regulate e-cigarettes were neglected. This might, as we noted in our introduction, seem perplexing. India, however, is not the first country to enact such a selective ban. A number of countries which do not ban tobacco products in general have banned e-cigarettes. But India is unique in another sense.

In order to address the matter of the constitutionality of the ban, we must acknowledge the cloud of impropriety that hangs over the entire ordinance. Three facts induce us to draw conclusions of impropriety about the Government’s move. First, the Government of India and other state-owned companies, at the time of the ban, owned nearly 29% of ITC Ltd., India’s largest manufacturer of combustible cigarettes. Second, the move came before the major expansion of e-cigarettes into the Indian market. Third, the ban eliminated the possibility of a legal e-cigarette industry, caused a commensurate rise in the share prices of tobacco companies, and ignites concerns of denial of market access in the realm of competition law as well.

In a weak sense, this merely provokes concern that the Government is using the health of individuals as a smokescreen for an increase in revenue. Being the largest shareholder of the largest tobacco company gives the government a direct incentive not to advance public health. But the claim we advance here imposes a heavier burden on the state as a matter of constitutional law. Narratives of constitutional injustice have thus far failed to take into account motive as a determinant of the presumptions surrounding arbitrariness. We argue that evidence of a clear contrary vested interest should impose a presumption against the government’s claim that they seek to advance public health and reverse the presumption of constitutionality.

The Supreme Court has also broadly validated this non-deferential approach to state justifications. In a landmark 2018 decision decriminalising homosexuality, a formalistic approach to Art. 14 was rejected in favour of a higher standard of scrutiny, holding that in issues of high importance, courts were justified in granting considerably less deference to the legislature than would otherwise be the case. Our proposed doctrine of vested interest, in this case, would apply as an additional burden imposed on the state where the situation demands a justificatory approach.

The existence of a vested interest should shift the presumption of constitutionality and require the courts to apply a stricter standard of scrutiny. Of course, since the government has a vested interest in a policy that is contrary to the public interest, it does not necessarily follow that they acted in violation of Article 14. However, in this case, the Government had two reasonable alternatives: ban both cigarettes and e-cigarettes; or tax and regulate both. Instead, they chose the sole alternative that advanced the vested interest, while regressing public health.

This claim is based on two concomitant circumstances. First, banning e-cigarettes completely deprives conventional smokers of a safer alternative, which often operates as a means to quit. Further, the Government defends its ban by stating that the addictive nature of e-cigarettes has a particular influence on the young. However, banning them completely merely pushes e-cigarette users into the proven health risk of smoking conventional cigarettes.

Therefore, there exists no possible justification for a complete ban on e-cigarettes, as opposed to any other regulatory alternative – except, of course, if we consider the vested economic interest of the state in the regression of the public’s health.

Conclusion

These arguments are not merely academic, not only to the extent that equality before the law and equal protection of the law are important constitutional principles, but also in light of the impropriety of the entire affair tested against the vested interest doctrine. To violate fundamental rights, to invoke (and thereby violate) the sanctity of the Directive Principles of State Policy, to cite risks to public health on the basis of no enquiry and no evidence, and to do all of these things in order to colourably eliminate an entire industry – no body of constitutional law should fail to address the vested-interest-based considerations of the Government. We argue, instead, that constitutional law must take account of this evasion by reversing the presumption of constitutionality and help advance a long-awaited shift in Indian Constitutional Law, from a culture of authority, to a culture of justification.

Suggested Citation: Nihal Sahu and Vedantha Sai, Special Undergraduate Series–The Doctrine of Vested Interest and India’s Unconstitutional Ban on E-Cigarettes, Int’l J. Const. L. Blog, Feb. 29, 2020, at: http://www.iconnectblog.com/2020/02/special-undergraduate-series–the-doctrine-of-vested-interest-and-india’s-unconstitutional-ban-on-e-cigarettes