Ban on smoking scenes in Movies - Exercise in Frivolity

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Background of Tobacco Control*

Smoking and other forms of Tobacco consumption are regarded as posing a significant risk to human health. As such, the control of consumption of Tobacco Products is a subject related to Public Health.

Under the Constitution of India, Public Health is a subject under the purview of the States as it is covered by Entry 6 of List II (State List) in the Seventh Schedule of the Constitution of India.

However, considering the importance of the risks of Tobacco consumption to the entire country, it was felt necessary for the subject be to be brought under the control of the Union Government as far as Tobacco Products are concerned.

Therefore, the Tobacco Industry was brought under the control of the Union by Parliament declaring by law that it was expedient in the public interest to do so. Thus, the Tobacco Industry came under the purview of the Union Government under Entry 52 of List I (Union List) of the Seventh Schedule.

The relevant law:

THE CIGARETTES AND OTHER TOBACCO PRODUCTS (PROHIBITION OF ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY AND DISTRIBUTION) ACT, 2003

was notified on 19^th May 2003. (Called Tobacco Control Act for short)

The Act makes provisions, amongst other things, for:

1. Prohibition of smoking in a public place (sec. 4)
2. Prohibition of advertisement of cigarettes and other tobacco products (sec. 5)
3. Prohibition of sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area (Sec. 6)
4. Restrictions on trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products (sec. 7)
5. Specified health warnings pertaining to cigarettes and other tobacco products (Sec. 8, 9 and 10)
6. Power of the Central Government to add other tobacco products by notification and make rules to carry out the provisions of the Act (sec.30 and 31). Every notification under Sec. 30 and every rule under the Act have to be necessarily approved by the Parliament. The final authority with regard to approval, rejection or modification of such notification or rule rests with the Parliament. (Sec.31(3)).

The 2003 Act repealed an earlier Act, The Cigarettes (Regulations of Production, Supply and Distribution), Act, 1975, which had a limited purpose of providing for labeling and restrictions on advertising of Cigarettes.

Some and not all of the provisions of the 2003 Act came into force on 1^st May, 2004. Since then, as far as the rules relating to the depiction of smoking scenes in movies and television media are concerned, Notification G.S.R. 345(E) was issued on 31^st May 2005. This was amended under G.S.R.496(E) dated 22^nd July 2005. The latest Notificatio, further amending the rule was issued under G.S.R.698(E) dated 30.11.05. The rules take effect from 1^st January 2006.

FRAMEWORK CONVENTION ON TOBACCO CONTROL

India also became a party to the WHO Framework Convention on Tobacco Control, by ratifying the same in February 2004. The Convention entered into force on 27^th February 2005.

As far as reduction measures are concerned, the Framework Convention makes provisions for:

1. Measures relating to the reduction of demand for tobacco (Part III – Articles 6 to 14)
2. Measures relating to the reduction of supply of tobacco (Part IV- Articles 15 to 17)
3. Protection of the environment (Part V – Article 18) 

The core provisions with regard to the reduction of demand for tobacco concern the following:

• Price and tax measures to reduce the demand for tobacco, and

• Non-price measures to reduce the demand for tobacco, namely:

Protection from exposure to tobacco smoke;

Regulation of the contents of tobacco products;

Regulation of tobacco product disclosures;

Packaging and labelling of tobacco products;

Education, communication, training and public awareness;

Tobacco advertising, promotion and sponsorship; and,

Demand reduction measures concerning tobacco dependence and cessation.

The core supply reduction provisions relate to the following:

Illicit trade in tobacco products;

Sales to and by minors; and,

Provision of support for economically viable alternative activities.

The specific provision relating to tobacco advertising, promotion and sponsorship does not provide for banning smoking scenes in movies, although, it does encourage the parties to implement measures beyond the obligations provided.

It is interesting to note that the Convention defines the term tobacco advertising and promotion as under:

Art. 1(c) “tobacco advertising and promotion” means any form of commercial communication, recommendation or action with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly;

The important point is that advertising means commercial advertising.

Meaning of advertisement:

The noun 'advertisement' has the following meanings:

1. A public promotion of some product or service

2. A systematic effort or part of this effort to increase the importance or reputation of something by favourable publicity

(*A detailed background paper entitled: “Report on Tobacco Control in India” has been published by the Ministry of Health and Public Welfare, Government of India on 25^th November 2004.)

In view of the fact that the Rules relating to the ban of smoking scenes in movies and TV media have been challenged in the Delhi High Court as violating the Fundamental Rights, it is pertinent to reproduce the relevant Fundamental Right under the Constitution.

CONSTITUTION OF INDIA

PART III

FUNDAMENTAL RIGHTS

Right to Freedom

19. Protection of certain rights regarding freedom of speech, etc.-

1) All citizens shall have the right-

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) …

(g) to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 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.

(3) xxx

(4) xxx

(5) xxx

(6) xxx

Article 21

Protection to life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Meaning of decency:
The noun ‘Decency’ has two meanings:

1. The quality of conforming to standards of propriety and modesty

2. The quality of being polite and respectable

Meaning of morality:

The noun ‘Morality’ has two meanings:

1. The quality of being in accord with standards of right or good conduct

2. A system of ideas of right and wrong conduct

On the general subject of the Right of Freedom of Expression, reference may be made to an excellent speech by eminent jurist Mr. Soli Sorabjee. Although covering in particular Freedom of expression of the Press, it is also relevant for the present issue.

From the Preamble to:

THE CIGARETTES AND OTHER TOBACCO PRODUCTS (PROHIBITION OF ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY AND DISTRIBUTION) ACT, 2003

WHEREAS, the Resolution passed by the 39th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 19S6 urged the member States of WHO which have not yet done so to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco;
AND WHEREAS, the 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990, reiterated the concerns expressed in the Resolution passed in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect advertising, promotion and sponsorship concerning tobacco;