Sunday, March 15, 2009

Screening “Smoking” Bans through a Constitutional Lens

I began a discussion with Madhav Khosla after reading his interesting take on Justice Kaul's "smoking" judgment. Unfortunately, owing to certain intervening events, I lost the thread and came back to articulating my stand on this issue only recently in this Mint editorial. I reproduce it below. I benefited greatly from discussions with Madhav, Arun and Tarunabh and thank them for their insights.

Given that "smoking" related cases are still pending before the courts, this issue is a burning one that refuses to be stubbed out in the near future. So do continue watching this space for more.


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...”

13 comments:

K.V.DHANANJAY said...

Certainly, the Court did not offer enough justification to defend a CBFC regulation authorising the CBFC, at its sole discretion, to eliminate visuals depicting smoking it deems to be injurious to public health.

The justification that inheres in a State to prohibit conduct recognised under Article 19 (1) (a) is to be narrowly construed so as to fit interests enumerated under 19 (2) and the Court did not offer compelling reasons to validate the Regulation under Article 19 (2).

I feel, in this case, the challenge by the film makers to the Regulation ought to have succeeded.

I further believe that the Regulation in the present form is not justifiable before a Constitutional Court as it runs foul of legitimate artistic freedom and no good reasons exists to curtial artistic freedom to advance a public interest that is served by nothing more than a subjective assessment by a Government agent, CBFC.

However, the Government is generally authorised to regulate 'advertisement or promotion of tobacco consumption' and a law founded upon those considerations may survive judicial scrutiny, if only a Court finds that, on balance, the law, even while trampling on creative freedom, advances a public interest in a manner that Courts have tolerated in like circumstances.

D.Bheemeswar said...

Hey dears,
This is an interesting debate on smoking. What I understand is that a Judge need not give any justification for his judgement if there is any legislative act concerning the ban of any goods. I do agree that smoking is injurious to health, but what we smoke or breath in this present atmosphere is much more dangerous than actual smoke that comes from a cigarette.
Actually we are all in paradise of fools where there is no control on either environmental problems or man made terrorist activities.

Those who form regulations should also prohibit the production of such items which are injurious or dangerous things. But the governments in the form of making money can not ignore this and stop production of such items.

Any how we have to live with that for a while.

Shamnad Basheer said...

Thanks Dhananjay and Bheemeswarji for your views:

Dhananjay states "However, the Government is generally authorised to regulate 'advertisement or promotion of tobacco consumption' and a law founded upon those considerations may survive judicial scrutiny, if only a Court finds that, on balance, the law, even while trampling on creative freedom, advances a public interest in a manner that Courts have tolerated in like circumstances."

Regulating advertisements are fine since they are "commercial speech" and don't fall within the rubric of Article 19(1)(a). But how will you justify the banning of scenes that promote smoking, if you haven't banned smoking outright? How will you defend this constitutionally?

tarunabh said...

1. shamnad, i am not so sure that commercial speech is not protected speech under article 19. not sure of the jurisprudence in this regard, but i doubt what you say is the correct position.
2. i think it will be constitutionally easier to ban smoking itself rather than ban expression of smoking. a ban on smoking will be challenged under freedom of trade and under article 21 - both more easily satisfiable than a challenge under 19(1)(a). i also dont think there is any contradiction in this position - the entire point of free speech is to protect speech which may be harmful/offensive etc. don't we ban violence without banning speech that portrays violence?

Shamnad Basheer said...

Dear Tarunabh,

As your first query, see the Hamdard Dawakhana case which categorically stated that commercial speech (advertisements) are not a part of Article 19. I believe this is still good law and I extract a part of the ruling below:

"An advertisement is no doubt a form of speech but itstrue character is reflected by the object for the promotion of which it is employed.... When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas-social, political or economic or furtherance of literature or human thought ; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines... It cannot be said that the right to publish and distribute commercial advertisements advertising an
individual's personal business is a part of freedom of speech guaranteed by the Constitution."

As for your second query, I think I categorically state in the article that as to whether or not a ban on smoking itself will sustain a constitutionality challenge is a moot issue. If such a ban could not pass constitutional muster, it would be very difficult to sustain the constitutionality of the CBFC regulations (that prohibit the glamourisation). Yes, free speech can be regulated--but as I clearly stated in the article--broad principles of "harm" and "offense" as you allude to are not enough. Which head under Article 19(2) would you fit this into?

Harm to minors under Article 21 might be one way of catching this--but here again, the "A" certification is the answer and not an outright ban.

And lastly in relation to your point on "violence", I believe that any speech that incites violence can be curtailed without contravening Article 19.

Dilip said...

Tarunabh, you are right that it might be easier to ban smoking itself than banning its on-screen expression. 19(6) allows reasonable restrictions in the interest of the public which is broader than the restrictions under specific categories in 19(2). A smoking ban may thus well be sustained as being in the interest of public health. But if that does happen, the question would be whether its potrayal on screen would go from being relatively moral to immoral. After all, currently, I doubt the CBFC would take it lightly if movie heroes were to be shown successfully vanquishing the villain while happily smoking pot or snorting cocaine. If smoking were to be proscribed, would it also not join this list of don'ts?

tarunabh said...

dear shamnad, thanks for pointing out hamdard dawakhana. if still true it would have been a remarkable judgment. it inspired me to do some quick research - apparently, Indian Express Newspapers case (AIR 1986 SC 515) seemed to have reversed the position in hamdard dawakhana by saying that commercial adverts were protected speech. then, Tata Press case AIR 1995 SC 2438 further strengthened this position by saying that free speech gives rights to a listener to receive commercial speech, among other speeches. so, i think hamdard dawakhana is now bad law.

on the second point, i wasn't taking issue at all, but merely clarifying - and my point simply is that it is mostly irrelevant to banning a type of expression whether the activity concerned itself can be banned constitutionally. and this also leads to Dilip's question - i think justifying a ban on the expression of drug taking will be difficult constitutionally for the same reasons that shamnad's post articulates with respect to smoking tobacco.

Recluse said...

Dear Shamnad,

Sorrying for 'butt'ing in at this late juncture, but had a couple of things to say:

1. I agree with you (and therefore disagree with Tarunabh) on whether Commercial Speech is protected by Article 19(1)(a). An examination of both Express and Tata Press will show you that they were 3-Judge decisions, which could not have overruled Hamdard's Constitution Bench. Not even if they felt that the American position on it (which was relied upon in Hamdard) had substantially changed. As a result, even though not strictly per incuriam, it definitely disobeys binding precedent and cannot be applied. The appropriate thing would have been for those 3-Judge benches to refer the matter to a larger bench for resolution.
2. Shamnad, I think you might be pitching it a little far down the wicket if you examine which restriction under 19(2) the restraint on advertising of smoking would fall. More preliminary would be whether this is a fundamental right at all. I feel that tobacco would be res extra commercium, just as alcohol is, and hence, following the dictum in Khodays (1995) and Devans (2004), the Article 19 protection would cease to exist for such a product. However, you might want to see the contrary view as far as tobacco is concerned in Godawat (2004), which I feel would not apply in the present case. Godawat was dealing with tobacco as an ingredient in a Food Product (pan masala / gutkha). Surely, nobody would say a cigarette / beedi / cigar is a Food Product?!

K.V.DHANANJAY said...

Dear Shamnad
The power to ‘regulate’ includes within it, the power to ‘prohibit’ unless expressly excluded by the Statute or the charter under which the ‘power to regulate’ is obtained.

K. Ramanathan v. State of Tamil Nadu and Anr. [AIR 1985 SC 660 : ( 1985 ) 2 SCC 116] held that:

The word 'regulation' cannot have any rigid or inflexible meaning as to exclude 'prohibition'. The word 'regulate' is difficult to define as having any precise meaning. It is a word of broad import, having a broad meaning, and is very comprehensive in scope....It has often been said that power to regulate does not necessarily include the power to prohibit, and ordinarily the word 'regulate' is not synonymous with the word 'prohibit'. This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition. At the same time, the power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and control, and involves the adoption of a rule or guiding principle to be followed, or the making of a rule with respect to the subject to be regulated. The power to regulate implies the power to check and may imply the power to prohibit under certain circumstances, as where the best or only efficacious regulation consists of suppression. It would therefore appear that the word 'regulation' cannot have any inflexible meaning as to exclude 'prohibition'. It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the Legislation seeks to remedy.

Commercial speech is an incident or part of business, profession or trade and is therefore, more appropriately recognised under Article 19 (1) (g). Speech protected under Article 19 (1) (a) is not necessarily speech that is divorced from a commercial motive, but the context in which such a speech occurs is wholly determinative of the ‘resonableness’ of the regulation complained of before a Constitutional court.

As such, a law that absolutely prohibits any form of advertisement of tobacco is on a different footing than one which authorises the CBFC, an agent of the Central Government, to determine, at its sole discretion, if visuals of a film tend to promote ‘smoking’ amongst the audience exposed to such a film.

It must be remembered that the CBFC is authorised under the Cinematograph Act, 1952 to issue a certificate for public exhibition and without such a certificate, the law renders it an offence to exhibit or to otherwise disseminate any motion picture in a public place. As such, a Court is bound to recognise that the power vested in the CBFC to refuse a certificate under the Cinematograph Act, 1952 imposes a commensurate burden upon a film maker to meet a criteria that, though exposed to tremendous litigation and remains ever uncertain, Courts have tended to uphold in the larger interest to protect public morality. When an additional layer of power is created in the CBFC, the careful balance articulated by Courts tend to fall apart and film makers need not even show actual injury from the grant of such additional power to the CBFC. Mere issue of additional power as is the case at present sufficient to invoke the power of a Constitutional Court to invalidate such additional source of power.

There is so much more to this discussion than is addressed in this post. Let me come back shortly.

tarunabh said...

dear recluse, point on hamdard dawakhana taken. evidently, my research was cursory. thanks for clarifying.

K.V.DHANANJAY said...

At times, a decision by a Constitutional Court on an issue before it may hold no practical significance at all to anyone except constitutional theorists. I say this to underscore the complexity behind a law regulating tobacco advertising and general principles underlying Government regulation of advertising may not apply to the fullest extent with respect to regulation on tobacco advertising.

In a nutshell, I feel the law governing tobacco advertising is indeed complex and so burdensome that, absent a factual setting, no satisfactory conclusion can be reached.

To analogise, take the decision of the United States Supreme Court in the case of District of Columbia v. Heller (26-Jun-2008). The Supreme Court, for the first time ever, declared that an individual held a 'constitutional right to bear arms'. Now, 9 months later, the New York Times has authored a very hilarious account of the impact this decision has had in factual settings.
http://www.nytimes.com/2009/03/17/us/17bar.html?_r=1&scp=1&sq=second%20amendment&st=cse
(Sidebar - Few Ripples From Supreme Court Ruling on Guns).

The paper says:
About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

So far, Heller is firing blanks.

Harvey C. Jackson IV, for instance, argued that he had a constitutional right to carry a gun while selling drugs in a dangerous neighborhood in East St. Louis, Ill. The federal appeals court in Chicago was unimpressed.

“The Constitution does not give anyone the right to be armed while committing a felony,” Chief Judge Frank H. Easterbrook wrote last month in Mr. Jackson’s case.

Professor Winkler summarized the impact of Heller in an article to be published in The U.C.L.A. Law Review in June. “So far,” he wrote, “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.”

All of this is awfully technical, of course, and it may have no practical consequences at all.

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

Anup said...

Shamnad,

I believe that the ratio of Hamdarad Dawakhana has been misunderstood. It is my argument that the ratio is far narrower than what has been projected so far.

I do not think Hamdarad Dawakhana can be read to deny protection to 'all' commercial speech. The quorum of judges in Hamdarad and Indian Express (AIR 1986 SC 515) is not determinative of the issue. I think the treatment of Hamdarad Dawakhana in the Indian Express case rightly discerns the ratio of the case.

Justice Venkataramiah in paras 90-91 of the Indian Express judgment is of the view that Hamdarad must be read in the context of the legislation that was before the Court. The Court was considering the constitutionality of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. In Hamdarad, great significance is given to the objective of the legislation, i.e preventing advertising of prohibited drugs and self-medication.

The case should not be seen as denying the protection of 19(1)(a) to commercial speech per se. The ruling was essentially on the right to advertise prohibited substances and a judgment in such a case cannot be conclusive of the protection available to 'all' commercial speech.

Justice Venkataramiah in the Indian Express case recognises that Hamdarad went beyond that. In paras 17-19 of Hamdarad, Justice Kapur deals with commercial advertisements per se and is of the opinion that they do not enjoy te protection of 19(1)(a). However, Justice Venkataramiah in the Indian Express case clearly hints that those paras must be treated as obiter:

"In the abovesaid case (Hamdarad) the Court was principally dealing with the right to advertise prohibited drugs, to prevent self-medication and self-treatment. That was the main issue in the case. It is no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to publish all commercial advertisements." -- Para 91

Paras 20 and 21 of the Hamdarad case further strengthens such a conclusion. Justice Kapur does not uphold the legislation on the general basis that 19(1)(a) does not protect commercial speech. Justice Kapur, after having extensively dealt with the history and the need for the legislation earlier in the judgment, relies heavily on the content and purpose of the legislation to uphold its constitutionality.

I would therefore argue the scope of Hamdarad is extremely narrow and is not determinative of the larger issue of 19(1)(a) protection available to all commercial speech.

-- Anup

Shamnad Basheer said...

Dear All,

Thanks for the extremely insightful pointers, which has enriched my own understanding of this complex terrain. Tarunabh--I went back and checked on Hamdard and agree with Recluse on the "precedential" value of Hamdard.

Apart from this, my limited understanding is that the Express case refers to a specific kind of "commercial speech" which is quite different than the one that Hamdard sought to address. And I guess this is what Anup alludes to as well.

The Express case involved a scenario where normal free speech (furthering political/social views etc) was supported by commercial advertisements. However, in the context of advertising cigarettes, the "commercial speech" denotes something different. i.e. the speech itself is not of any particular political or social value but has the main aim of promoting sales of a product.