Off-Topic: Screening “Smoking” Bans through a Constitutional Lens


Since I’ve lit up the cancer stick a great number of time till last year, all things relating to smoking interest me considerably. For those of you interested in a discussion on a recent Delhi High Court judgment on the constitutionality of “smoking” bans, see this post of mine at “Law and Other Things”, perhaps India’s leading blawg. This post draws on an editorial piece in the Mint, which I reproduce below:

The law, smoke and mirrors

“I often wonder about the hours when a man sits alone, watching the smoke of a cigarette, thinking. I wonder what great things have come from such hours. When a man thinks, there is a spot of fire alive in his mind— and it is proper that he should have the burning point of a cigarette as his one expression.”

Ayn Rands’ sentiments mouthed through one of her characters in the classic Atlas Shrugged may have spurred some of us to light up. But ought that be reason enough to prohibit the publication of this book in India? Although current legal norms weigh against such censorship of the printing press, it certainly sanctions it when “text” migrates to “screen”. The law vests our Central Board of Film Certification (CBFC) with the discretion to axe any scene that glamourizes or encourages smoking, notwithstanding the fact that such scene may be integral to the plot or to the character. And notwithstanding the fact that the law does not prohibit smoking, unless committed within public precincts.

It is in this context that the Delhi high court’s recent denunciation of a regulation banning the depiction of on-screen smoking is a very welcome one for those of us who zealously guard our free speech rights against an overtly paternalistic state. Justice Sanjay Kishen Kaul rightly notes that such regulation violates the right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India.

However, the judgement is problematic in that it implicitly endorses CBFC’s right to interfere with artistic freedom, when the scene in question encourages smoking.

The case centres around a rule (promulgated under what is commonly referred to as the Cigarettes Act, 2003) which prohibited “characters” in films and television programmes from “displaying tobacco products or their use”. A writ petition challenging the constitutionality of this rule came up before justice Kaul. It is very difficult to take exception to justice Kaul’s staunch defence of the freedom of speech guaranteed under Article 19(1). However, his reasoning leaves much to be desired.

For one, he ducks the issue of whether or not certain exceptions articulated under different heads in Article 19(2) can save the governmental regulation in question, claiming that it is not germane to the controversy. Not only is it germane to the controversy, it is absolutely critical.

Article 19(2) permits the state to intrude upon the right to free speech when such intrusion is “reasonable” and is in the interest of any of the following: the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

It is difficult to see how the banning of on-screen smoking would fit within any of the above heads. Although one may qualify measures to discourage smoking as “public health” measures, this cannot tantamount to preserving “public order”.

As for “decency” and “morality”, the less said the better. The closest I ever came to witnessing such a nexus was when a student of mine categorically asserted that “civilized people do not smoke”.

Without dealing conclusively with whether or not the impugned ban fitted within any of the above heads, justice Kaul assumed that even if it did, it would still not amount to a “reasonable” restriction. Particularly since there already existed another guideline under the Cinematograph Act, 1952, that permitted CBFC to chop “glamourized” smoking scenes. In other words, an outright ban on “any” smoking scene was “unreasonable”, whereas a ban on only “glamourized” smoking scenes was perfectly constitutional. But this begs the question: Do such bans fall within the purview of the Article 19(2) categories at all? Unless they do so, one need not bother examining their reasonableness or otherwise.

Although the legality of the CBFC guidelines was not in issue, justice Kaul implicitly defends them. It is therefore imperative that film-makers take steps to challenge the constitutionality of these guidelines.

On a broader note, if our zealously paternalistic state is worried about the ill effects of smoking, it must take on the tobacco lobbies and ban smoking altogether (as to whether such a measure is likely to withstand a constitutional challenge is a moot issue). But until then, a film-maker must be offered the artistic freedom to depict the iconoclastic Hank Rearden lighting up his cancer stick in as swashbuckling a manner as possible. Even if this necessarily means more smoke-filled lungs and the encouragement of a habit described by James I as “loathsome to the eye, hateful to the nose, harmful to the brain…[and].. dangerous to the lungs…”

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

4 comments.

  1. AvatarAnonymous

    @Shamnad:

    you say “see this post of mine at “Law and Other Things”, perhaps India’s leading blawg…”

    I really doubt that Law and Other things is still India’s leading law blog. I wonder why you would advertise that blog here.

    1. It undoubtedly began as India’s leading blog… But of late there is a noticeable leftwards tilt and the reporting is no longer objective (there is no attempt either to be objective). I miss the posts of V. Reddy over at that blog.

    2. In terms of general coverage, it is the main blog on constitutional issues. But that is a result of the first-mover’s advantage and a monopoly. For instance, Spicy IP is IP-dedicated; Indian Corp Law is Corp; Law and Legal – although styled as a general blog – is mostly commercial law; Ajay Shah’s blog is again mostly financial market related. SO to with Sandeep Parekh. So Law and Other Things remains not the “leading blawg” but the “only consti blog”

    3. In terms of number of hits, I think Spicy IP has the most hits per day; followed by India Corp Law. Law and Other things only comes after that.

    In view of these factors, I am disturbed that Spicy IP thinks it fit to promote Law and Other things by styling it India’s leading law blog. I hope that Spicy IP does not lose its fair and objective standard merely by reason of commonality of contributors.

    I say this on this blog only because you must understand that Spicy IP has several hundred student readers; you have a huge capacity to mould the minds of young students. So my sincere advice is not to promote blogs devoted t a particular ideology; as you have some kind of fiduciary duties to your readers. You have several readers who criticise. Know that for every 1 who criticises, there are 100 who read silently and BELIEVE you.

    I use the example of law and other things merely to highlight this aspect. I dont particularly mind if you do not approve of my comment as it tends to disparage Law and Other Things. I must clarify that this is solely my opinion. But if you do not publish this, please pass on the message to the co-contributors. Do remember that there are several people – young people – who are ready to believe everything you tell them. I travel around India, in several colleges. And the fact that Spicy IP said something means, for several youngsters, that it is the truth. THat is a reputation you have earned – with it comes a responsibility.

    Sorry for the sermon; if you feel that what I said is nonsense, please consider it as nothing but the venting of an old man. I also commented as Another Anonymous Coward on this blog; I stopped because I did not see the need to nitpick now and then. But this is one issue which I feel I must bring to your notice.

    Reply
  2. AvatarAnonymous

    Hahahaha…….this is hilarious and unbelievable,I am sure Shamnad does not need any amusement outside the classroom.

    As for “decency” and “morality”, the less said the better. The closest I ever came to witnessing such a nexus was when a student of mine categorically asserted that “civilized people do not smoke”.

    I am not sure what all will article 19(2) will protect considering the overzealous attempt by different sections of the society to use the various words to justify restricting our freedom of speech and expression- some times its contempt of court as the judges get offended if their judgments are criticized by “writers”, at others its so the called “prominent” journalists who threaten to sue bloggers for expressing their critical views about their abysmal coverage of events.

    Reply
  3. AvatarAnonymous

    LOL. LOL LOL. Thats all I can say. LOL again!

    His legal comments as Another Anon Coward were quite interesting; but now he has “paternal concern for all the students of the country!?

    Reply

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