New Delhi: Earlier this month, the Union health ministry issued a circular asking 35 bodies associated with the ministry to have a “prior consultation” with them before pursuing any research or holding any events on e-cigarettes and other electronic nicotine delivery systems (ENDS).
The reason cited by them for this is that the matter is ‘sub judice’. Currently, a few cases on e-cigarettes are pending before the Delhi high court, for which the Union of India has been made a party. The sale of e-cigarettes is currently not allowed in India and a number of commercially interested parties have come forward, asking for permission to sell these devices and if need be, for regulation.
Some of the thirty-five bodies who were sent this circular include the Indian Council of Medical Research (ICMR), All India Institute of Medical Sciences, Pasteur Institute of India, National Institute of TB and Respiratory Diseases, Medical Council of India and National Health Systems Resource Centre directing them to give the ministry a heads-up.
The private sector is, of course, entirely free to pursue its own research agendas and they do.
Yesterday, the ICMR released a “white paper” in which they have recommended a “complete prohibition on ENDS or e-cigarettes in India in the greater interest of protecting public health”.
The paper says that after India has worked hard on tobacco control and even seen good results (there has been a decline of 6% in tobacco use, over the last two Global Adult Tobacco Surveys), ENDS would be an “unwarranted” and “unproven” product in the country.
The matter around the sale of e-cigarettes is sub judice
Is it then warranted for government research institutes to have a “prior consultation” with the union health ministry on ENDS because this matter is “sub judice”?
Sub judice is a legal term that means a matter is “under judgement.” It is often applied to media reports on legal matters, where the apprehension is that reporting could influence legal proceedings. Influencing a proceeding is discouraged, but sub judice is not meant to clamp down on free speech. Just because a matter is sub judice, it also does not mean that there is an automatic injunction on reporting, public discussion or community engagement with that matter.
The government of India is often taken to court and made a party to various cases on policy matters. Ministries are called upon, as per their expertise, to file affidavits that give the union’s stand on these matters.
Referring to the health ministry’s recent circular, former Union health secretary Keshav Desiraju said, “It is normal for ministries to do this, to avoid confusion in policy matters.”
“If different wings of the government come up with contradictory views, it becomes difficult for people who may want to do business. For example, if the Government takes a stand on something, people tend to make decisions based on that stand. If there is contradictory information, people can’t make informed decisions” says Ajay Kumar, an advocate practising at the Bombay High Court. “It is important that the government’s positions are always clear and consistent so that people may make informed and reliable decisions.”
The union of India has faced confusion in the past when different wings submitted contradictory affidavits in court. For example, in early litigation around the decriminalisation of Section 377 of the penal code, while the health ministry was in favour, the home ministry was not. This was finally resolved with the home ministry backing down.
“There may be different points of view internally in the government but this is usually resolved by the cabinet secretary and with the law ministry. These are some of the existing ways to handle this,” says a retired bureaucrat.
Not a ban on research
Surabhi Dhar, a lawyer practising in Delhi disagrees: “The government is not making a direction but making a request, for this prior consult. Operationally, these kinds of protocols often end up being restrictions. ‘Sub judice‘ doesn’t mean public discussion of a government policy needs to stop. So a request like this by the ministry is not necessary just because government policy is being adjudicated in court.”
Another lawyer who has represented tobacco companies says, “This recent circular has actually not banned or prohibited all research on e-cigarettes. It also does not seem arbitrary in its scope, as it is only directed at government institutes and has not called for an all-India ban on research.”
On this note, Balram Bhargava, ICMR’s director general says, “We at ICMR are here to do research on issues the government is working on and to assist the government to make informed policy choices.”
Even ICMR’s white paper, which was released yesterday, is not new research. They have undertaken a scan of existing research and collated it into a policy document with recommendations for the government.
According to Ravi Mehrotra, director at ICMR’s National Institute of Cancer Prevention and Research, they are also not doing any original primary research on ENDS such as studying the chemical components in various nicotine devices available in the Indian market, their levels of nicotine and presence of other potentially harmful chemicals.
This is even though the ministry has commissioned three National Tobacco Testing Laboratories which the government says have “world class facilities to analyse various kinds of tobacco products.” While these labs are doing research on smokeless tobacco like gutka and pan, they have only discussed but not begun any primary research on ENDS.