Friday, January 30, 2009

Free Speech v. Public Health

Last week, Tarunabh posted details of two new free speech orders that had been passed. In one of the orders, the judgment of which can be found here, the Delhi High Court struck down the ban on smoking in films. In an article in today's Indian Express, I examine this order through the lens of the conflict between free speech and public health. While I support the decision, particularly because Justice Kaul follows first principles rather than grounds of policy, I believe that one has to closely watch the future to witness how the field of public health law may develop in India. While in India, this area of law has hitherto not been regarded as an independent field of law, the increase in government regulations that aim to safeguard public health and thus infringe personal freedoms and impact human behaviour, could see courts following specific doctrinal approaches in public health cases.

4 comments:

Dilip said...

I have not yet read the judgment or the smoking notification (is either of these available online? I could not find the latter on the MOHFW website) but there are several points that I do not quite follow.

You write 'In striking down the ban on smoking in films, the Court emphasised that the Board of Film Certification had ample powers to ensure that films do not encourage smoking, and no further legal regulation was warranted.' What powers are these? Is the board empowered to restrict the use of smoking in particular scenes or that scenes that involve smoking could be censored solely on that ground?

I get the point about potrayal of reality. But freedom of artistic expression is much more than depicting reality, so the court's inference that the Director ought to always be free to express what he desires does not automatically follow from that fact. The objective of most run-of-the-mill bollywood drama is to depict a fantasy world that is deliberately designed as an escape from reality. What about sci-fi movies (if some director were to choose to make one)? In public, Mr.Ramadoss at that time clarified that certain roles that required the actor to smoke would be excluded from the ban which, I suppose, was with reference to the sort of reality-based situations the honorable judge is talking about. If the notification indeed makes this point, then the central argument of the court's reasoning seems to end up addressing the exception but generalizing its conclusions to the actual rule and then striking it down on that basis.

Dilip said...

Madhav,

Sec.5-B of the Cinematograph Act, 1952 says:

Principles for guidance in certifying films. – (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of [(Ins. by Act 49 of 1981 (w.e.f. 1-6-1983) the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.

(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.

Notes

Censorship in India has full justification in the field of the exhibition of cinema films. It is in the interest of society. The censorship of films including prior restraint is justified under the Constitution.

It has almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. Therefore classification of films into categories of "U" films "A" films is a reasonable classification.

It is not elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer.

If the smoking notification is struck down on the ground that it does not fall within the purview of the morality exception under the constitution, it would seem to me that use of the very same lanaguage of Art. 19(2) in this Act suggests that censorship on the same basis by the censor Board is impermissible as well. The notes also refer only to rape, leprosy and sexual immorality, not smoking.

Madhav Khosla said...

Hi Dilip,

1. The judgment is available online. I provided the link in my post.

2. I believe that the powers the Court is referring to are to in a notification dated 06.12.1991 of the Ministry of Information and Broadcasting which was issued under Section 5B(2) of the Cinematograph Act, 1952.

3. I am not sure I understand your point concerning science fiction. The Court's reasoning is sound that you cannot prohibit anyone from portraying reality. It surely does not mean that he must only portray reality - obviously he can portray fantasy. That's besides the point.

4. I don't believe any public statement by Mr. Ramadoss has legal value. The Court was required to act on the basis of the text of the impugned provisions, which made no exceptions of the kind you indicate.

Dilip said...

Madhav,

1. Thanks for pointing out the link to the judgment. Having gone through it, it appears that the reasoning the court is broader than I originally thought but the questions I think are still valid.

2. The reason for quoting Ramadoss' public statement was not because it had any legal value but to suggest that he must have got some exception included for reality-based situations (assuming he was not lying). Sure enough, rule 4(7) provides that exception. The court however makes the point that the exception is still unduly restrictive (para 39) and even if the object is one of entertainment or artistic expression (para 42), there is still a need to depict even undesirable realities for that purpose.

3. The whole argument revolving around the need to portray reality made me ask arguendo if the movie/scene was not reality-based, was it still impermissible to censor it? If the rules were rewritten by rewording rule 4(7) to provide a blanket exception to all reality-based situations - no use of the phrases 'in very rare cases' or 'compulsion of the script' as existed here - would the notification then pass constitutional muster? That is where the distinction between reality and fantasy might become important. If some hero in a bollywood drama were to sing and dance atop a Ferrari in some exotic Swiss locale with a dozen beautiful young European women all the while smoking his cigarette, it is difficult to claim that to be a portrayal of reality. Likewise, a chimerical monster in a sci-fi movie or a walking skeleton in a horror movie exhaling toxic fumes is arguably unreal. Do these situations then qualify for censorship under this standard?