Legislation & reaction from the street.

AuthorRoy, Kaushik
PositionReport - Abstract


Legislation becomes evident in its enactment (Gopal, 2006). Rules may exist on paper but come alive only in their interpretation and their enforcement. This is particularly so because no legislative frame can anticipate all possible contingencies that can arise in the implementation (Chandiramani, 2002). Therefore, there always exists room for interpretation and opportunistic behavior. On many occasions, legislation has to take upon itself the mantle of leading the society towards progressive change. In that sense, legislation is anticipating progressive values that must become an essential part of the society. There may be pockets of intense resistance to such demonstrative leadership emerging from the context of legislation (Lindblom, 1952). Interest groups and coalitions whose ways of living appear to be endangered by legislation may particularly articulate a shrill voice against its import (Nord, 1978). Therefore, the challenge of legislation is not in framing it but in ensuring implementation which adheres to the original mandate that led to deliberations around the necessity of having a particular law. Legislation is thus, an entity which exists in the meanings which people attach to it. Law exists more in the minds of people and their willingness to accept it rather than in books of statute. Such a notion of law has radical implications, as witnessed by history including the mass uprisings that were a part of the freedom movement.


This study is located in the context of the evolution and implementation of legislation, which, as studied by Chatterjee (2008), affects ordinary citizens of the nation state of India. Many times, the scheme of legislation occurs within the realm of the elite and the ordinary citizens feel disempowered in the evolution and implementation of legislation. According to Harriss (2007), "civil society organizations that seek to make politics more accountable to the consumer citizen, are invariably middle class dominated, and while working to bridge the democratic gap between the ruling class and the governed, do not really involve themselves in to the primary concerns of the urban poor". This study was rooted in the context of Chennai, but it is understood that it is a true representation of any metropolitan city of India. The process of not consulting citizens who will be affected by the course of legislation creates a void in the deliberative milieu which leads to the realization of an active spirit of genuine democratic citizenship (Harris, 2001).

Literature Review

The context of public health has been an important element of legislative discourse. Accordingly, legislation was enacted by the Government of India, which banned smoking of cigarettes in public places. The said law has come into effect since October 2, 2008. Benefits of such a law are reflected in numerous empirical works, primarily in the domain of medicine. A study conducted in the USA and Australia, and reported in the year 1999 indicate that ban on smoking at workplaces has positively impacted the overall consumption of cigarettes by the workforce (Chapman, Borland, Scollo, Brownson, Dominello & Woodward, 1999). The same article concludes that if workplaces are universally smoke-free, the number of cigarettes forgone annually would definitely increase, though within different ranges, for different countries. Another study found that during the tenure for which there was a law banning smoking in public and work places, the number of patients admitted to hospitals for cigarette smoke-related ailments declined by 25% (Sargent, Shepard & Glantz, 2004). Hence, the authors conclude that laws to enforce smoke-free workplaces and public places are associated with an effect on morbidity from heart diseases. Haw and Gruer (2007) conclude, based on their cross sectional survey, that implementation of Scotland's smoke-free legislation has been accompanied, within one year, by a large reduction in exposure to secondhand smoke, which has been greatest in non-smokers living in non-smoking households. Non-smokers living in smoking households continue to have high levels of exposure to secondhand smoke.

However, there are various tensions which inform the evolution of policy and law involving issues of public health (Lindblom, 1952). These tensions usually emerge in the context of debates surrounding the privilege of individual rights over social rights (Gudavarthy, 2008). For instance, in the context of smoking, every individual who is bestowed with moral and intellectual faculties to act on her own accord as an independent entity in society has the right to make her own decisions regarding whether she wishes to smoke cigarettes or not. The decision to smoke cigarettes is therefore not a simple question of consumption but touches the very paradigm of individual freedom in some sense. Tension emerges when the exercise of freedom by resorting to smoke is claimed to affect the health of others. An argument is advanced that by curtailing the rights of some individuals, the greater good of society can be achieved (Wegner & Yuan, 2004). Such an argument attempts to construct freedom of an individual as a composite of utilitarianism where the greater common good is to be privileged over absolute individual rights. It is this philosophy of utilitarianism that informs the banning of smoking cigarettes in public places in India as part of a legislative initiative.

Laws, even when they proclaim to advance the cause of virtue, are seldom innocent (RoyChowdhury, 2004). Even though they may have at their heart a sound argument, they are also part of the systems which marginalize and disadvantage voices. In the framing of laws, with the intent to preserve public good and a sense of virtue, stakeholders who may have been marginal to activities that are being outlawed may suffer the most (Gaetz & O'Grady, 2002). Their voices seldom become a part of the discourse of law and debates surrounding its implementation. The executive also uses its force selectively to marginalize the social actors further and make them dependent on an exploitative structure for their existence. We examine here the experiences of vendors on the street to the legislation of banning cigarette smoking in public places. Street vendors are marginal actors on the social plane and often have had little voice with respect to the issues of urban governance and preserving their livelihood within urban spaces (Bhowmik, 2003; Bhowmik, 2005). Policies have been framed that adversely affect street vendors. Though smoking cigarettes in public is an autonomous choice that a consumer exercises, implications have been advanced to place restrictions on street vendors and other points of...

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