Back
IN THE HIGH COURT OF DELHI
Mukul Mudgal and Sanjiv Khanna, JJ.
Mr. Mahesh Bhatt and Kasturi and Sons - Appellants
Vs.
Union of India (UOI) and Anr. - Respondent
Writ Petition (Civil) Nos. 18761 and 23716/2005 and 7410-11/2006
Decided On: 07.02.2008
The Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (the Act) and the amended Cigarettes and Other Tobacco Products Prevention of Advertisements and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2005 (the Rules) were challenged on the grounds that they violated Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India. The Court held that commercial advertisements are entitled to limited protection under Article 19(1)(a) of the Constitution if they are in public interest. Commercial advertisements of tobacco products are not expressions protected under Article 19(1)(a) of the Constitution. Commercial advertisements will include indirect or surrogate advertisements which promote and encourage use of tobacco products. However, commercial advertisements are different and distinct from news. The purpose and object behind news is to disseminate information, thoughts and ideas. Pre-dominant nature and character of the article, picture, etc, will determine whether it is a commercial advertisement or a news item/picture. The impugned Act and the Rules though they strictly do not fall within the ambit of Article 19(2) of the Constitution are intra virus and valid as Fundamental Right under Article 19(1)(a) and Right to Life under Article 21 have to be harmoniously construed to advance interest of general public. Restrictions imposed on electronic media and cinematographic films are reasonable and justified. Restrictions imposed on the print media to prevent publication of brand names, logos of tobacco products are also in larger public interest and to promote Right to Life. The Rules also provide for constitution of a committee representing diverse voices, interest and groups and thereforee adequate safeguards have been provided to prevent harassment. Individual cases of abuse of powers can always be struck down by Courts.
Fact of the Case:
Writ Petitions were filed challenging the legality and validity of the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (the Act) and the amended Cigarettes and Other Tobacco Products Prevention of Advertisements and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2005 (the Rules). The petitioners claimed that the impugned legislation violated Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India.
Finding of the Court:
The Court held that commercial advertisements are entitled to limited protection under Article 19(1)(a) of the Constitution if they are in public interest. Commercial advertisements of tobacco products are not expressions protected under Article 19(1)(a) of the Constitution. Commercial advertisements will include indirect or surrogate advertisements which promote and encourage use of tobacco products. However, commercial advertisements are different and distinct from news. The purpose and object behind news is to disseminate information, thoughts and ideas. Pre-dominant nature and character of the article, picture, etc, will determine whether it is a commercial advertisement or a news item/picture. The impugned Act and the Rules though they strictly do not fall within the ambit of Article 19(2) of the Constitution are intra virus and valid as Fundamental Right under Article 19(1)(a) and Right to Life under Article 21 have to be harmoniously construed to advance interest of general public. Restrictions imposed on electronic media and cinematographic films are reasonable and justified. Restrictions imposed on the print media to prevent publication of brand names, logos of tobacco products are also in larger public interest and to promote Right to Life. The Rules also provide for constitution of a committee representing diverse voices, interest and groups and thereforee adequate safeguards have been provided to prevent harassment. Individual cases of abuse of powers can always be struck down by Courts.
Issues: Whether the impugned Act and the Rules violated Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India.
Ratio Decidendi: The Court held that commercial advertisements are entitled to limited protection under Article 19(1)(a) of the Constitution if they are in public interest. Commercial advertisements of tobacco products are not expressions protected under Article 19(1)(a) of the Constitution. Commercial advertisements will include indirect or surrogate advertisements which promote and encourage use of tobacco products. However, commercial advertisements are different and distinct from news. The purpose and object behind news is to disseminate information, thoughts and ideas. Pre-dominant nature and character of the article, picture, etc, will determine whether it is a commercial advertisement or a news item/picture. The impugned Act and the Rules though they strictly do not fall within the ambit of Article 19(2) of the Constitution are intra virus and valid as Fundamental Right under Article 19(1)(a) and Right to Life under Article 21 have to be harmoniously construed to advance interest of general public. Restrictions imposed on electronic media and cinematographic films are reasonable and justified. Restrictions imposed on the print media to prevent publication of brand names, logos of tobacco products are also in larger public interest and to promote Right to Life. The Rules also provide for constitution of a committee representing diverse voices, interest and groups and thereforee adequate safeguards have been provided to prevent harassment. Individual cases of abuse of powers can always be struck down by Courts.
Final Decision: The Court held that the impugned Act and the Rules were intra virus and valid as Fundamental Right under Article 19(1)(a) and Right to Life under Article 21 have to be harmoniously construed to advance interest of general public. The Court also quashed the show cause notice issued to Kasturi and Sons.
Sanjiv Khanna, J
1. At the very outset, we begin with the Caveat, which is almost universal whenever constitutional validity of a legislation is challenged, while deciding the question of constitutional validity, we do not pronounce judgment on whether the impugned legislation is desirable and should have been enacted. A legislation may be constitutional, yet it may not be desirable [Denis v. U.S. reported in (1950) 341 U.S. 492.
2. The present Writ Petitions challenge the legality and validity of some of the provisions of the the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as the Act, for short) and the amended Cigarettes and Other Tobacco Products Prevention of Advertisements and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2005 (hereinafter referred to as the Rules, for short). It may be noted that Writ Petition (Civil) Nos. 18761/2005 and 23716/2005 titled Mahesh Bhatt v. Union of India was filed in this Court, while other two Writ Petition (Civil) Nos. 7410-11/2006 titled Kasturi and sons v. Union of India and Anr. were initially filed in Madras High Court but later on transferred to this Court, by Order dated 27th March, 2006 passed by the Honble Supreme Court.
3. The petitioner in Writ Petition (Civil) Nos. 18761/2005 and 23716/2005 is a reputed Writer, Director and Producer of films and television programmes. The Writ Petitioner in the other two petitions is engaged in publication of the newspaper The Hindu. Both the petitioners claim that the amended Rules violate Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India and are not protected under Article 19(2). It is the contention of the petitioners that if the amended Rules are upheld, they will gag and stifle the film, electronic and print media from expressing themselves and curtail their freedom to communicate, inform public and portray society as it actually exists. Considerable emphasis is placed upon the fact that business and use of tobacco is legal and is not rest extra commercium. Learned Counsel appearing for Kasturi and Sons had submitted that the restrictions and prohibitions under the Act and as envisaged by the amended Rules would prevent the print media from even disseminating news in public interest and thereforee violate the right to Freedom of Speech and Expression guaranteed by the Constitution. It was urged that the said legislations are not reasonable. The legal contentions and issues raised by the parties have been dealt with and examined by us while giving our reasoning. The respondents, on the other hand, had drawn our attention to the object and purpose behind the amendments, the reason and cause why the Act was enacted. It was accordingly submitted that the Rules as framed are constitutionally valid and Article 19(1)(a) of the Constitution is not violated. To avoid prolixity, we are not reproducing in detail the legal contentions and the issues raised separately.
(I) PROVISIONS MADE SUBJECT MATTER OF CHALLENGE
4. The Act was made applicable to the whole of India on 1st May, 2004 The relevant provisions of the Act for the purpose of deciding the writ petitions read 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;
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 advertiseme
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
