WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 1 of 50 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 01.12.2008 % Date of decision: 23.01.2009 + WP (C) No.18761 of 2005 & WP (C) No.23716 of 2005 MAHESH BHATT …PETITIONER Through: Mr. Sandeep Sethi, Sr. Advocate with Mr. C.M. Lall, Advocate. Versus UNION OF INDIA & ANR. …RESPONDENTS Through: Mr. P.P. Malhotra, ASG with Mr. Mukul Gupta, Mr. Shankar Chhabra & Mr. Chetan Chawla, Advocates for the UOI. + WP (C) No.7410 of 2006 & WP (C) No.7411 of 2006 KASTURI & SONS LTD. …PETITIONER Through: Mr. Arvind Datar, Sr. Advocate with Mr. Nikhil Nayyar & Mr. Ambuj Agrawal, Advocates. Versus UNION OF INDIA & ANR. …RESPONDENTS Through: Mr. P.P. Malhotra, ASG with Mr. Mukul Gupta, Mr. Shankar Chhabra & Mr. Chetan Chawla, Advocates for the UOI. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes SANJAY KISHAN KAUL, J. 1. “To cease smoking is the easiest thing I ever did, I ought to know because I have done it a thousand times”, said Mark Twain. Smoking is a habit which has permeated ages its WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 2 of 50 harmful effects well-known. It is a habit most difficult to give up but the consequences are so damaging not only to the person indulging in it but to other people in and around him that it has formed a part of a larger debate worldwide leading to passing of necessary legislations to discourage it. The strength to give it up, however, often comes from within rather than without in the form of any legislations. 2. The subject itself has bred controversies in different forms. The impact of smoking by way of representation in films and media has formed the basis of two erudite judgements of my brother Judges who have, however, agreed to disagree on a crucial aspect of it without there being any disagreement on the harmful effects of it. It is this disagreement which has resulted in the present reference. 3. It must be taken note of at the inception itself that the two judgements to the extent they agree really do not call for any further comments. There is no dispute about the authority of the Parliament insofar as its legislative competence is concerned to enact The Cigarettes & Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade & Commerce, Production, Supply & Distribution) Act, 2003 (hereinafter referred to as the said Act). It is, however, the Rules framed thereunder in exercise of the powers conferred under the said Act which have given rise to this reference. The Rules have also had a chequered history from a more stringent stipulation to a more moderate one ostensibly on the basis of views expressed against the Rules made as impinging on the freedom of the media and WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 3 of 50 the press. The historical perspective which gave rise to the said Act can be deciphered from the preamble itself which is reproduced hereinunder: “An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. WHEREAS, the Resolution passed by the 39th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 1986 urged the member States of WHO which have not yet done so to implement the measures to ensure that effective protection i 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; AND WHEREAS, it is considered expedient to enact a comprehensive law on tobacco in the public interest and to protect the public health; AND WHEREAS, it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution; AND WHEREAS, it is expedient to prohibit the advertisement of, and to provide for regulation of trade and commerce, production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto…” WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 4 of 50 4. A reading of the aforesaid Preamble shows that the said Act is not only a child of the world opinion to discourage smoking but is also in furtherance of the constitutional mandate contained in Article 47 of the Constitution of India for improvement of public health. There is a huge amount of statistics available on the damaging effects of this habit affecting the society at large and class suits have been filed in the USA and other countries successfully. The Union of India, thus, in terms of Section 2 of the said Act found it expedient in public interest to take under its control the tobacco industry and deal with various aspects under the provisions of the said Act. 5. In an age where modes of communication and reach to public have gone through a revolution, the impact of sales promotion on encouraging the habit of smoking through advertisements could not have been ignored. The Parliament in its wisdom, thus, specifically included Section 5 for achieving the objective of prohibition of advertisements of cigarette and other tobacco products. The provision reads as under: “Section 5. Prohibition of advertisement of cigarettes and other tobacco products.- (1) No person engaged in, or purported to be engaged in, the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products. WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 5 of 50 (2) No person, for any direct or indirect pecuniary benefit, shall- (a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or (b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or (c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or (d) erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product: Provided that this sub-section shall not apply in relation to- (A) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product; (B) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale. (3) No person, shall, under a contract or otherwise promote or agree to promote the use or consumption of- (a) cigarettes or any other tobacco product; or (b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person.” WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 6 of 50 6. As to what is meant by “advertisement” is given in the definition Clause 3(a) of the said Act as under: “Section 3(a). “advertisement” includes any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas;” 7. It may also be useful to refer the provisions of Section 8 of the said Act which prescribes for the provision of a warning on the packets of cigarettes or any other tobacco products to be given and the mode and manner of such representation is prescribed in Section 9 of the said Act. Section 22 of the said Act prescribes the punishment for breach of Section 5 as under: “Section 22. Punishment for advertisement of cigarettes and tobacco products.- Whoever contravenes the provision of Section 5 shall, on conviction, be punishable- (a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and (b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees.” 8. The Cigarettes & Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade & Commerce, Production, Supply & Distribution) Rules, 2004 (hereinafter referred to as the said Rules) came to be enacted in pursuance to the powers conferred under Section 31 of the said Act. It is trite to say that persons smoking being shown in films is part of cinematographic history. The Rules proceeded to deal with the aspect of such representation WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 7 of 50 and films made in the past and in the future with various stipulations. It is making of such Rules which has formed a part of challenge in the writ petition filed by Mr. Mahesh Bhatt, a well-known Film Director, as being beyond the competency of the powers conferred under the said Act as also the constitutional mandate of Article 19 (1) (a) of the Constitution of India. The representations from the film industry and the media dealing with stringent provisions gave rise to subsequent amendments diluting the stringency of the provisions but even the provisions as they stand as per the last amendment vide notification dated 20.10.2006 are subject matter of challenge. 9. Rule 4 of the said Rules provides for prohibition of advertisement of cigarette and other tobacco products. The various sub-clauses thereafter deal with different aspects. We are concerned with validity of Rule 4 as last modified, which reads as under:- “4. Prohibition of advertisement of cigarettes and other tobacco products.- (1) The size of the board used for the advertisement of cigarettes and any other tobacco products displayed at the entrance of a warehouse or a shop where cigarettes or any other tobacco products is offered for sale shall not exceed sixty centimeters by forty-five centimeters. (2) Each such board shall contain in an Indian language as applicable, one of the following warnings occupying the top edge of the board in a prominent manner measuring twenty centimeters by fifteen centimeters, namely:- i. Tobacco causes cancer, or ii. Tobacco kills. WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 8 of 50 (3) The health warning referred to in sub-rule (2) must be prominent, legible and in black colour with a white background. (4) The display board shall only list the type of tobacco products available and no brand pack shot, brand name of the tobacco product or other promotional message and picture shall be displayed on the board. The display board shall not be backlit or illuminated in any manner. (5) The owner or manager or in-charge of the affairs of a place where cigarettes and other tobacco products are sold shall not display tobacco products in such a way that they are visible so as to prevent easy access of tobacco products to persons below the age of eighteen years. (6) No individual or a person or a character in films and television programmes shall display tobacco products or their use: Provided that this sub-rule shall not apply to- (a) old Indian films and old television programmes, produced prior to coming into effect of this notification, being screened in a cinema hall or theatre or aired on television; (b) old foreign films and old television programmes, including dubbed and sub-titled “foreign films” and television programmes, being screened in cinema halls or theatres or aired on television; (c) Indian or foreign documentaries and health spots displaying use of tobacco products made to clearly and unambiguously reflect the dangers and dire consequences of tobacco use being screened in cinema hall or theatre or aired on television; (d) live coverage of news, current affairs, interviews, public meetings, sports events, cultural events and the like, being telecast on television whereby there is a purely incidental and completely unintentional coverage of use of tobacco products: Provided further that the exemptions under clauses (a), (b), (c) and (d) above shall not extend to display of brands of tobacco products or tobacco product placement in any form: Provided also that close ups of cigarette packages or tobacco products shall not be permissible and such scenes shall be edited by the producer or WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 9 of 50 distributor or broadcaster prior to screening in cinemas or theatres or airing on television. Explanation (1).- For the purpose of this sub-rule, all films that receive Central Board of Film certification prior to the effective date of this notification shall be categorized as “old films”. Explanation (2).- For the purpose of this sub-rule, “foreign film” implies “imported” as defined in the Cinematography (Certification) Rules, 1983. (6A) In case of old Indian and foreign films, the owner or manger of the cinema hall or theatre where the film is being screened shall ensure that anti tobacco health spots of minimum thirty seconds duration each are screened at the beginning, middle and end of the said film. The provisions of this sub-rule shall not apply to clause (c) of sub-rule 6. (6B)(a) In case of old television programmes, it shall be mandatory for the broadcaster to ensure either placement of an anti tobacco health warning as a prominent scroll at the bottom of the television screen during the period of such display or airing of anti tobacco health spots for a period of minimum thirty seconds during the telecast of each television programme of thirty minute duration or less. (b) In case the television programme is more than thirty minutes further airtime of thirty seconds shall be allocated for each incremental thirty minutes, for telecasting anti tobacco spots. (c) the minimum duration of each anti tobacco spot shall be not less than fifteen seconds. (d) The provisions of this sub-rule shall not apply to clauses (c) and (d) of sub-rule 6: Provided that, the anti tobacco health warning scroll shall be legible and readable with font in black colour on white background with the warnings “Smoking causes cancer” or “Smoking kills” for smoking form of tobacco use and “Tobacco causes cancer” or “Tobacco kills” for chewing and other form of tobacco or such other warnings as may be specified by the Central Government, from time to time. Provided further that, the anti tobacco health warning scrolls or health spots shall be in the same language(s) as used in the film or television programme. In case of dubbed or sub-titled films or WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 10 of 50 television programmes, the scrolls or spots shall be carried in the language of dubbing or sub-titlement. (7) Sub-rule (6) shall not apply to new Indian or foreign films and television programmes displaying use of tobacco products necessary to represent the smoking of tobacco usage of a real historical figure or for representation of a historical era or classified well known character: Provided that in very rare cases where there is display or use of tobacco products due to compulsions of the script, they shall be supported by a strong editorial justification: Provided further that the display of usage of tobacco products in such movies and television programmes under this sub-rule shall be subject to the following safeguards: (a) Film and television programs depicting tobacco related scenes shall mandatorily be given 'A' Certification. Such films and television programmes may be permitted to be telecast at such timings as are likely to have least viewership from persons below the age of eighteen years. (b) The films or television programs, which depict such scenes, would have a disclaimer by the concerned actor regarding the ill effects of use of such products. The disclaimer would be shown in the beginning, middle and end of the film. (c) Whenever such scenes are shown in a film or television programme, an anti tobacco health warning scroll will be continuously displayed on the screen starting a minute before the scene and would be continuously displayed until one minute after the scene. Provided also that there shall not be any display of brands of tobacco products or tobacco product placement in any form: Provided also that close-ups of cigarette packages or tobacco products shall not be permissible and such scenes shall be edited by the producer or distributor or broadcaster prior to screening in cinemas or theatres or airing on television. Explanation (1).- For the purpose of this sub-rule, all films and television programmes that receive Central Board of Film certification after the effective date of this notification shall be categorized as 'new'. WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 11 of 50 Explanation (2).- For the purpose of this sub-rule, representatives from Ministry of Health and Family Welfare shall also be represented in the Central Board of Film Certification. (8) Wherever brand names or logos of tobacco products form a part of the pictures to be printed in any form or print or outdoor media or footage to be aired through any form of electronic media, it shall be mandatory for the media to crop or mask the same to ensure that the brand names and logos of the tobacco products are not visible, except in case of live or deferred live telecast of sports, cultural and other events or activities held in other countries being aired on television in India. (9) A Steering Committee shall be constituted under the chairmanship of the Union Health Secretary with representation from among others, the Ministry of Information and Broadcasting, Ministry of Law and Justice, Advertising Standards Council of India, Press Council of India, Members of Parliament and voluntary organizations. This Committee shall take cognizance suo moto or look into specific violations under section 5 of the Act and shall also evaluate cases related to indirect advertising and promotion and pass orders thereof.” 10. Sanjiv Khanna, J. in his opinion at the inception itself had referred to the scope of scrutiny by the courts of a legislation. However, it is nobody’s case that the power does not vest with the Parliament to enact law unless the law is hit by any provision of the Constitution of India and insofar as the Rules made under the said Act are concerned, unless the Rules are not framed within the mandate of the provisions of the Act. The challenge to the Rules, however, is on a twin basis: (a) the impinging of the constitutional right as the Rules would amount to a gag order resulting in curtailment of the freedom of expression and the right to communicate and inform the public; (b) the Rules being beyond the powers conferred under the said Act. WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 12 of 50 11. Sanjiv Khanna, J. has come to the conclusion that the legislatures of this country possess the powers of legislation and the subject matter of the legislation in question falls within the domain of the powers conferred under Article 246 of the Constitution of India read with entry 52 of the Union list in the 7th Schedule. It is in view thereof that the conclusion was reached that the plea of lack of legislative competency is not sustainable and the opinion of Mukul Mudgal, J. concurs with the same. Thus, the legislative competency does not form a part of any difference of view. 12. Sanjiv Khanna, J. again has dealt with the aspect of the violation of Article 19 (1) (a) of the Constitution of India which obviously includes the rights to express oneself by cinematographic mediums or any print media. In this context paras 20 to 42 of the judgement have dealt in detail with this aspect. The question, however, whether the ban on smoking could come within the domain “decency or morality” as defined in the exception under Article 19 (2) of the Constitution of India has been left open. However, the challenge to the provisions of Section 5 of the said Act which makes the offence punishable has been rejected. The opinion of Mukul Mudgal, J. specifically concurs with the views expressed in paragraphs 20 to 42 of the opinion of Sanjiv Khanna, J. and in para 1 itself Mukul Mudgal, J. has expressed his differences limited to the matters expressed in paras 15 to 19 and paras 43 to 56 as also the consequent conclusion. Paras 15 to 19 of Sanjiv Khanna, J. judgement deals with the aspect as to whether the amended Rules are WP (C) Nos.18761 & 23716 of 2005 AND 7410 & 7411 of 2006 Page 13 of 50 ultra vires the parent statute and legislations being Cinematograph Act, 1952 and The Cable Television Networks (Regulation) Act, 1995. Paras 43 to 53 of the opinion of Sanjiv Khanna, J. are under the heading of Right to Life and Article 19 (1) (a) of the Constitution of India. In the process of discussion, the provisions of the Rules have been upheld. 13. The two opinions find common ground insofar as the challenge to a show cause notice issued which forms subject matter of challenge in the other writ petition filed by M/s. Kasturi & Sons. The controversy arose out of a photograph published in the newspaper ‘The Hindu’ of a driver in a formula one race where there is a logo on the jacket of the driver of a cigarette company which was construed as a commercial advertisement in the show cause notice. Sanjiv Khanna, J. while upholding the Rules struck down the show cause notice while Mukul Mudgal, J. has even struck down the Rules. Mukul Mudgal, J. has struck down Rule 4 (6) as also Rule 4 (8) of the said Rules. Scope of Section 3 (a) of the said Act 14. Section 3 of the said Act is the defining Section and clause (a) defines the “advertisement”. This is the most crucial section which has a direct impact on the controversy in question. It would be, thus, necessary to dissect this clause and see its impact to come