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Cinema can be injurious to your health

The ban on smoking in films is overturned. Does free speech trump public health?

Written by MADHAV KHOSLA | January 30, 2009 2:14:22 am

Words and expressions can hurt religious sentiments. But can they hurt your health? Last week,in questioning the ban on smoking in films,the Delhi High Court was confronted with a different kind of balancing act — the right to free speech over the demands of public health.

In Mahesh Bhatt v. Union of India,the Delhi High Court struck down certain Rules framed under the Cigarettes and Other Tobacco Products (Prohibition and Regulation) Act,2003,as ultra vires ,and as violative of Article 19(1)(a) of the Indian constitution,the fundamental right which guarantees freedom of speech and expression. The High Court had previously passed a split verdict on this issue,resulting in the matter coming before Justice Sanjay K. Kaul.

While the Court did not explicitly view the Mahesh Bhatt case in this fashion,the core issue in the case was the extent to which government may regulate commercial speech to safeguard public health. In the emerging area of public health law,the government’s authority to regulate is often sourced from its positive duty to protect the right to health. A range of scenarios in public health law would require courts to strike a balance between the obligation of the state and the choice of an individual. For instance,the regulation of alcohol consumption,compulsory vaccinations and quarantines,inspection of commercial and residential premises,limits on commercial speech through controlling the advertising of certain products and services,and so on. In such situations,courts will often be called upon to determine the extent to which the exercise of public health powers can infringe rights such as liberty,privacy etc. In these situations,the task of courts is particularly difficult as compared with conflicts between free speech and religious convictions. This is because the impact of a public health measure is usually indirect and tough to ascertain. While in the Mahesh Bhatt case,the Court did not explicitly delve into doctrinal approaches likely to be adopted in such cases,the judgment does provide some indication of how Indian courts may shape the field of public health law. In particular,Justice Kaul relied on J.S. Mill’s harm principle to strike down the ban on smoking. If “harm to others” is to be the founding test for determining the validity of public health measures,legal rules such as those requiring the use of seatbelts may find it tough to withstand challenge. One must also await future decisions to gain a greater sense of how the term “harm” will be construed.

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. Justice Kaul refrained from engaging in any discussion on whether a ban on smoking in films may in fact serve to prevent the encouragement of smoking. Instead,he adopted a mode of reasoning that emphasised the democratic relevance of the right to free speech,thereby rightly basing his decision on first principles rather than on grounds of policy. Taking the example of prostitution,the Court observed,“Prostitution may not be desirable but it does exist. It is accordingly shown in films…. there is no absolute ban on smoking in the country. Any film made,would,thus,only be reflecting on something which exists and is permissible”. Even if the government had put forth strong empirical evidence suggesting health benefits in favour of the ban,there is nothing in the judgment to suggest that Justice Kaul would have decided differently. “What is often represented is not what must exist in an ideal world but the ground realities which are far removed from an ideal position” noted the Court,and thus “the undesirability of the act of smoking has nothing to do with the right of the Director as an artist to express what he so desires”.

With the field of public health law growing in India,free speech controversies of the kind in the Mahesh Bhatt case are likely to intensify. In a country with gross violations of the right to health,and one where free speech is a sacred fundamental rights,the future should present us with several opportunities to understand what role public law must play in safeguarding public health.

The writer is a researcher at the Commission on Centre-State Relations,New Delhi

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