Beyond The Pierce Brosnan Issue: When Will Stricter Laws Be Enforced Against Gutka Sales?

Posted on October 22, 2016 in Health and Life, Society

By Kunal Basu:

“The name’s Bond… James Bond.”

007 seems to be in the starlight once again. The suave Pierce Brosnan, who essayed the role of the famous Cold-War era spy is now once again in the spotlight for lambasting Pan Bahar pan masala for misusing his name in promoting its gutka products. He has further stated that had he known of the negative intention of the promoters, he would have never agreed to have participated in this commercial, as he had lost his wife and daughter to cancer. Kudos to this approach, 007!

Gutka is still being sold under the counters, despite Regulation 2.3.4. of the FSSAI Act (2006) categorically stating that tobacco and nicotine ingestion are both injurious to health. Furthermore, vendors of this deleterious product flaunt judicial orders vis-a-vis the 2016 ban imposed by the Supreme Court with impunity. They draw their strength from the fact that as the administrative government seems unconcerned to implement the law, the same is open to them to exploit. Till date, the statutory provision outlawing gutka sales has not been enforced, as is evident from the multitude of sellers around the corner offering it to eager consumers of the same at a reasonable price.

It is noteworthy that in ‘M/s. Prabhat Zarda Factory vs. State of Bihar’ (Civil Writ Jurisdiction 19286/2014) the Patna High Court held that pan masala could be sold as long as the manufacturers substantially complied with regulatory provisions of the FSSAI Act. This ruling appears to be a rational approach by the Court in furtherance of the Act and in upholding public interest.

In ‘Dinesh Chandra Gandhi vs. St. of Gujarat and Ors‘ (1989 AIR 1011) it was held by a Division Bench of the Supreme Court comprising Justices Venkatachalliah and Ranganathan Misra that the 1954 Food (Prevention of) Adulteration Act specifically included that any edible item causing danger to human life cannot be presumed to be wholesome. Although gutka is edible, yet there is a possibility of it causing incurable ulcers leading to death. To this extent, gutka must be banned immediately with retrospective effect.

Similarly, in ‘Dhariwal Industries (Ltd.) vs. UOI’ (2002) it was held by the same Court that where a prohibitory order banning sale of gutka products is issued in public interests, the same cannot be challenged on legitimate grounds that it contravened an individual’s right to engage in trade, occupation or profession under Article 19(1)(g) of our Constitution. Where the law contravenes public policy, it must be declared void ipso jure.

Indian media has time and again tried to depict the evils of chewing gutka and gutka-related products. Who can forget the classic television commercial of Mukesh, the man who was epitomised as having succumbed to an early death from chewing gutka? Are court orders to be wholly disregarded to the disadvantage of the Indian people as a whole?

In 2014, the Delhi Health Minister, Harsh Vardhan, had suggested that all States across India enforce the law on gutka ban in public interest. However it is noteworthy that only 20 of those appealed to have actually taken some interest in furtherance of his plea. In some states like Delhi, Haryana and Maharashtra, sale of gutka products is already a cognisable, non-bailable offense.

When will our Government wake up to the interests of its people and enforce the law? The Courts can only pass judgements unto a certain extent, but not beyond.