Recently, the Ministry of Health & Family Welfare, Government of India issued a communication on the subject of electronic nicotine delivery systems and like devices to a total of 35 stakeholders, including all the Councils, ICMR, medical colleges, National Academy of Medical Sciences (NAMS), National Board of Examination (NBE), among others, among others.

The circular dated 5^th May 2019 said, “Since the subject matter is sub-judice and pending before various high courts. It is requested not to publish any statement/ research paper/ document/ article/ report/ study etc as well as not to organise any consultation/ workshop etc on ENDS and the likely devices that enable nicotine delivery without prior consultation with tobacco control division MOH and FW. This should be brought to the notice of all concerned.”

The notice has been drafted very cleverly to create confusion.

• It says, “The subject matter is sub-judice”.  Yes, but there are no directives from the court that prevent research on the said subject or for that matter any such subject. Research and deliberations may help answer several questions. If research is stopped, the country will stand still, instead of moving forwards, in most matters. The court has only stayed the MOH communication to the customs department.
• The court did not bar from reporting the matter, but this circular from the Ministry has “requested” but not directed, not to report or publish anything on ENDS. This is a smart play of words on the part of the Health ministry.
• If the government interpretation was correct, it should have taken a reverse stand on this and encourage more research rather than asking not to publish any research paper, article, document etc. In fact, issuing such a statement by the government could amount to contempt of court.
• The 35 stakeholders have been given powers to act “This should be brought to the notice of all concerned” but here again, the word used is “should” and not “shall”. The government seems to have washed its hands off the issue and put the onus on the stakeholders. This has led to confusion and ambiguity.
• Ideally, in matters such as this, which may be controversial but are of public importance, more and more consultations and researches should be held.  

The double bench of the Delhi High Court on 16^th May rejected the government plea to vacate the single bench stay on the earlier government communication, a day before when the regular matter was to be heard. The regular single bench now has posted the matter in late August.