Tobacco use is a global epidemic that kills six million people annually. Approximately one person dies every six seconds due to tobacco, accounting for one in 10 adult deaths. According to the World Health Organisation (WHO), tragically more than 80 per cent of those deaths occur in the developing world. India is the second highest consumer of tobacco products in the world with around 29 per cent of all adults ~ 267 million people ~ using tobacco in some form.

Tobacco kills more than 1.3 million people in India annually. A WHO-supported study conducted by the Public Health Foundation of India found that the total economic costs attributable to tobacco use in 2011 amounted to a staggering Rs 104,500 crores (US$ 22.4 billion), or roughly 1.16 per cent of the country’s gross domestic product. This shows that India faces a considerable tobacco-related mortality and morbidity burden.

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The Framework Convention on Tobacco Control (WHO FCTC) was the first international instrument adopted by WHO in 2003 to combat this menace. The instrument was signed by 181 countries and came into force on 27 February 2005. It has since become one of the most rapidly and widely embraced treaties in the history of the United Nations.

The preamble to the Convention displays the commitment of countries to develop an international legal instrument to eradicate tobacco use. The obligation of state parties under Article 5.3 of the FCTC to protect public health policies from tobacco industry interference (TII) is acknowledged as ‘the backbone of the Convention’.

Treaty guidelines recommend adopting measures to avoid conflicts of interest and ensure transparency; reject partnerships with or contributions from the tobacco industry and require information from it; and, not to give incentives for the tobacco business. The improved adherence to Article 5.3 was endorsed by the WHO FCTC Impact Assessment Expert Group as the ‘single highest priority’ to advance tobacco control internationally. Yet Article 5.3 implementation has been consistently low.

The FCTC explicitly recognises the need for coordinated tobacco control governance across ministries. This whole-of-government approach is specified in Article 5.1, requiring parties to develop comprehensive multi-sectoral national tobacco control strategies. Pursuant to this, Article 5.2 requires Parties to establish a national coordinating mechanism for tobacco control to promote coherent governance for health across ministries and government sectors.

These commitments to coordination sit alongside Article 5.3 and its implementation guidelines that recognise the potential for the tobacco industry to undermine the FCTC based on a fundamental conflict between public health and tobacco industry interests. Fostering respect for any international obligations under the constitutional scheme of India (Article 253 read with Entries 13 and 14 of List I of Schedule VII) has been made a subject of Union Legislation even if the subject matter falls within the States List.

India ratified WHO FCTC, which is now embedded in United Nations Sustainable Development Goals (UN SDGs) and therefore it is obligated that all the ministries under the Government of India including Trade and Commerce; Environment; Agriculture; and Gender, Labour and Social Development must adopt Article 5.3. Indian courts too have recognized the obligations of India to not violate Article 5.3 of FCTC. But India doesn’t have a national policy on the lines of FCTC Article 5.3. Recently, the Ministry of Commerce and Industry under the Government of India invited comments to make amendments in the existing Tobacco Board Act 1975 which primarily intends to encourage tobacco farming and the tobacco industry.

The 1975 Act had been enacted having regard to the concerns of growers, manufacturers, distributors, traders, exporters, and importers of tobacco products at a time when the scientific evidence about the ills of tobacco was not well established.

The Tobacco Board Act, which promotes the tobacco industry and provides subsidies and other forms of incentives is in direct conflict with the provisions of the Constitution such as Article 21 under fundamental rights and Articles 39, 47, 48A, and 51 under Directive Principles of State Policy. The obligation under WHO FCTC is the obligation of the country and not only the Ministry of Health and Family Welfare (MoHFW). The two ministries of the Government of India apparently seem to have conflicting mandates. It is not permissible that one ministry under the Government of India should promote the tobacco industry, and another to seek to control and strive towards the reduction of tobacco use.

Differing institutional mandates can imply conflicting expectations or responsibilities across ministries and hence create policy tensions. This is more so because MoHFW and all other ministries, under the leadership of NITI Ayaog have committed to meet the sustainable development goals that includes a prevention and control plan for non-communicable diseases (NCD) which in turn requires actions to reduce tobacco-induced mortality to meet the SDGs especially the health goal related to NCDs that call for full implementation of WHO FCTC.

Indian federalism specifies legislative and policymaking functions between two levels of government. While central and state governments share legislative and administrative responsibility for welfare policies such as education, pensions, and social security, public health is distinctive in the autonomy delegated to states under the Constitution creating the potential for sub-national policy innovation and patterns of divergence and convergence across individual states. To address this regulatory gap, state and district administrations have issued notifications and developed protocols to implement Article 5.3, amid concerns about tobacco industry interference and its engagement with government policy programmes at national and state levels.

Around fifteen states in India so far have developed some kind of policy instrument to protect policies from the tobacco industry’s commercial and vested interests. Manipur is the latest entrant to this club; the state issued a notification in April 2022 cutting all future collaborations and partnerships with the tobacco industry.

The state policies make provision for an empowered intergovernmental committee involving civil society to oversee the implementation of state policy. It requires all public servants to report on any interactions with the industry and to remove any perceptions of partnership with it. Public officials are also required to declare and divest interests in the industry. However, there are gaps identified in these state initiatives. For instance, the Government of Maharashtra did not provide for an empowered committee but clearly envisaged broad engagement with Article 5.3 implementation efforts, with restrictions applying to ‘all government departments in the state and their offices/agencies’.

At the national level, FCTC measures have been incorporated into India’s Cigarettes and Other Tobacco Products Act (COTPA) 2003 which confers responsibility on the central government to ‘make rules to carry out the provisions of this Act’ including for pictorial health warnings, smoke-free public places and advertising, promotion and sponsorship restrictions. COTPA’s most significant omission is the absence of measures to prevent tobacco industry interference despite a broad declaration that ‘it is expedient in the public interest that the Union should take under its control the tobacco industry.’

The MoHFW, Government of India, adopted a Code of Conduct restricting its employees from collaborating with the tobacco industry. Though this move was a step towards Article 5.3 of FCTC, its application was kept restricted only to officials of the Ministry of Health and Family Welfare, offices under its jurisdiction, and to any person acting on their behalf. The glaring gaps in existing policies at centre and state levels highlight the need for a comprehensive national policy that could create a superstructure on the plethora of state and district-level initiatives to consolidate effective multilevel governance for tobacco control. The national policy will also enable the citizenry to hold industry accountable for human rights abuses and other ills they cause to climate and humanity.