| NEW
DELHI: In a major relief to the film industry, the Delhi High Court today struck
down the Government's notification of 2005 banning smoking scenes in films or
television. In
its order, the court allowed the depiction of smoking scenes in the films as it
formed the fundamental right of a film-maker to show his creative abilities. It
said banning smoking in films violated a filmmaker’s fundamental right of
freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution.
Justice
Sanjay Kishan Kaul ruled that the Government's rule-making powers can only curb
the advertisements of smoking and not ban its depiction since all depictions cannot
be termed as advertisement. Similarly,
he said showing sports events sponsored by tobacco companies or of cigarette brands
cannot be a violation of the Cinematograph Act 1952, thus giving a major relief
to the print and electronic media.
Quoting
an example of a car rally sponsored by famous cigarette company "Marlbro",
the Judge said there was nothing wrong in showing a car rally with the brand of
the cigarette on a car or a photograph in a print publication with a Marlbro poster
behind the prize winner or something similar. This cannot amount to violation
of the laws. Justice
Kaul was asked to hear the case after a two-judge bench of Justice Mukul Mudgal
and Sanjive Khanna last year gave a dissenting judgment where they had different
viewpoints. He
noted "the directors should not have multifarious authorities breathing down
their necks when indulging in creative art," since there already was a Central
Board of Film Certification which can curb the scenes that glorify scenes of cigarette
smoking. There was, therefore, no need of another regulatory body to curb such
scenes. The
Union Ministry of Health and Family Welfare had in May 2005 proposed the ban by
notifying the Cigarette and Tobacco Products (Prohibition of Advertisement and
Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment
Rules 2005 and by its notification said the rules will be applicable from 2 October,
2005. The
order had come on a petition in September 2005 by film director Mahesh Bhatt challenging
the notification. The
government had argued that 800,000 Indians a year died from smoking-related diseases
and that it was wrong for films or TV programmes to glamourise the habit. It
said that old films - whether Indian or foreign - must carry warnings if they
showed smoking scenes. It said all logos of tobacco products must be masked or
cut out. The
World Health Organisation had welcomed the move when it came in 2005, saying it
would help cut India's smoking-related deaths because the portrayal of "attractive
people smoking" had an influence on young people as "some of them identify
with those on the screens". In
2004, smoking was banned in public places and a ban imposed on tobacco firms'
advertising in and sponsoring of sporting events. Another law in 2005 required
manufacturers to list tar and nicotine content on packets. | 
