Saturday, January 14, 2006

Ban on smoking scenes in Movies - Exercise in Frivolity

Taking a stand
Present and previous I&B Ministers

It is just as well as that the Ministry of Information & Broadcasting has found the conviction to file an affidavit in the Delhi High Court expressing points of disagreement with the stand taken by another Ministry of the Government concerning the proposal to ban smoking scenes in movies and television.
The Minister of Health and Family Welfare has shown no sign of backing down on his pet project. In fact, the relevant rule under the Act has been notified once again after two amendments on 30th November 2005 and is set to become effective on 1st January 2006 after two deferments. (A third deferment till March 2006 has just been announced!)
That the much-hyped proposal is based on half-baked thoughts and is a frivolous exercise (just like the proposal for banning non-iodized salt) was shown in earlier articles (see here and here). It is now becoming evident that it is so.
It is not surprising that the decision of the Government has been challenged in the Delhi High Court as being against fundamental rights and thus, unconstitutional. (Mahesh Bhatt v. Union of India and others- CW18761/2005).

When examined objectively devoid of emotional issues related to smoking, the decision is not only legally questionable, but also otherwise unjustified.

The Legal issues: (some background information here)

The original notification of the Ministry has been challenged on the grounds that it was ultra vires the Constitution as it violated the fundamental rights of freedom of speech and expression. Although the Notification has been amended on 30th November 2005 with several modifications, the challenge still remains. The fact that the latest amendment has made substantive and significant changes is prima facie and ample confirmation of legal infirmity in the rule as originally notified. The exemptions and other provisions of the new notification only tend to make the provisions clumsier than before because the action itself is misplaced in the first place.
It is worthwhile to examine the legal aspects because the notification not only clearly violates the right to freedom of speech and expression; it appears to actually go beyond the rule making power of the Government under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
Article 19 of the Constitution of India guarantees to every citizen, the right to freedom of speech and expression:

Article 19(1) All citizens shall have the right –
to freedom of speech and expression
This is a fundamental right and is a core feature of the Constitution. Although this right is not unfettered, it cannot be easily abridged or curtailed. The Constitution itself provides for limited situations in which the State can place reasonable restrictions on the right. The provision in this regard is contained in Article 19(2), which provides that:
Article 19(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
What is required to be determined is: (a) Whether the law imposes a restriction on the freedom in question; (b) Whether the restriction has been imposed by law; (c) Whether the restriction is reasonable; and (d) Whether the restriction, besides being, reasonable, is imposed for any of the reasons provided in Art. 19(2).
The restriction must fall squarely within one or more heads of permissible restrictions specified in Article 19(2). The affidavit filed by the Health Ministry has defended the notification on the ground that it evoked wide support from a large section of the society. However, it is not open to the State to curtail the freedom under Article 19(1) on omnibus grounds as in the interest of the general public or for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. As far as the depiction of smoking is concerned, the situations under which a restriction could be even remotely covered are only two viz. in the interest of decency or morality.
The act of smoking per se would not fall under the definition either of decency or morality. Even if by stretching the imagination the act of smoking is considered a matter of decency or morality, it is clearly not against contemporary norms of decency or morality unlike, for example, obscenity, even if a section of the society may be strongly against smoking. It follows that mere depiction of smoking in movies or television, prima facie, cannot be restricted as it would tantamount to restricting the freedom of expression of a citizen. Prima facie the rule will have to fail as the restriction is not in respect of any of the situations envisaged in Article19 (2). The affidavit filed by the Ministry itself says: “the rules are required to be imposed….to protect the right to health of public…” which is not a permissible ground under Article 19(2).
Even if by some warped reasoning it were considered to be an issue related to decency or morality, any restriction would have to pass a strict test of ‘reasonableness’. The most important aspect of the test is determining whether the legal restriction of rights enshrined in Article 19 is reasonable. In order to determine the reasonableness of the law, the Supreme Court has also devised test criteria. The test criteria are: (a) the nature of the right infringed; (b) underlying purpose of the restriction imposed; (c) evil sought to be remedied by the law, its extent and urgency;(d) how far the restriction is or is not proportionate to the evil; and (e) prevailing conditions at the time.
The highest court in the land once approvingly quoted from a decision of the European Court of Human Rights: “freedom of expression protects not merely ideas that are accepted but those that offend, shock or disturb the State or any sector of the population. Such are the demands of the pluralism, tolerance, without which there is no democratic society”.
It would be difficult to pass the test of ‘reasonableness’ when the restriction is viewed in an overall context.
The next issue that is considered briefly is the relevance of Article 21 in trying to justify the restriction. The Ministry of Health in its affidavit in Delhi High Court states: ‘‘The restriction under the rules are required to be imposed in furtherance of the objectives and provisions of the Act and to protect the right to health of public which is included in right to life,’’
Article 21 of the Constitution states:
Protection to life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.

In a 1999 case related to banning of smoking in public places (Murli Deora v. Union of India and others), in which the issue of ‘right to life’ was mentioned, the Supreme Court did pass an order issuing directions to prohibit smoking in specified public places. With due respect, it appears rather far-fetched to argue that the 'right to life' was being taken away by allowing smoking in public places. But this is only a passing observation as this is not the subject matter of the current discussion.
However, it seems bizarre that the Ministry claims the right to life as a justification for its proposition for the present restrictions. Depiction of smoking scenes, to an ordinary person of reasonable intelligence does not mean ‘depriving of right to life’. All the actions of an individual in watching a movie, continuing to watch smoking scenes, thinking about smoking and actually smoking are completely voluntary of his/her own volition. It cannot be said that depiction of smoking scenes is in any sense ‘depriving of life’ of an individual. The argument simply defies logic. It can also be argued that the right to personal liberty also includes the right of an individual to make a choice to smoke or not to smoke. To illustrate the absurdity of the argument about ‘right to life’, it is worthwhile considering the case of cell phones. Extensive research is being done on the effect of cell phone use and other forms of electromagnetic radiation. The research suggests a serious biological and health risk, including cancer and even an increase in suicide risk. ( see here and here) If this is true, could the ‘right to life’ argument be used to ban cell phone use? More such 'studies' could be found to impose restrictions in a way that could beat the Fundamental Freedom enshrined in Art. 21 out of shape over a period. In any event, in so far as the effect of the Government rule is to restrict freedom of speech or expression, the rule would be unconstitutional unless, apart from meeting other tests, it is covered under the permissibility under Article 19(2).
Finally, the question is also whether the restriction goes beyond the purview of the Act itself under which the rules are notified. The Act empowers Government to make rules to carry out the provisions of the Act. The relevant Section 5 of the Act refers to prohibition of ‘advertisement’ of cigarettes and other tobacco products. Although the Act gives a broad meaning of the word, the Framework Convention on Tobacco Control to which India is a party, gives the correct definition of ‘Advertising’ as generally understood:
Article 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;
As a definition and meaning as specifically related to tobacco products and that too in the context of the subject matter of the Act is available in the FCTC, the same can be applied in order to determine the effect of Section 5 of the Act. It is clear that ‘advertising’ or ‘advertisement’ imply a commercial or sponsoring aspect for promoting a product or service or idea. Another common langauge definition of 'advertisement' is:
Description or presentation of a product, idea, or organization, in order to induce individuals to buy, support, or approve of it.
Consequently, if either definition is used, it means that any and every depiction of smoking or tobacco use in movies or television would not be termed as ‘advertisement.’ It follows that any rule that affects depiction of smoking or tobacco use that is neither commercial or sponsored nor intended to 'induce' individuals, would be beyond the scope of the Act. Therefore, the notification prohibiting all depictions would be invalid. Any restriction, subject to its passing the test of Article 19(2), would have to apply only to such depictions which are commercial or sponsored or in some way paid for or those that are intended to 'induce'. This would automatically exclude non-sponsored depictions and scenes that fall within the sphere of creative expression.

Issue of Jurisdiction?
A moot point that arises is also that of the jurisdiction of the Ministries within the Central Government. The Tobacco Control Act 2003 and the actions under the Act by the Ministry of Health are apparently by virtue of the Tobacco Industry being placed under the Union Government under Entry 52 of List I of the Seventh Schedule. This empowers the Union Government to have control of the Tobacco Industry.

It is submitted that the action of banning scenes containing tobacco use in movies is tantamount to control of the movie industry, not the tobacco industry. The most that the Health Ministry could do within its powers is to prohibit any sponsoring of tobacco use scenes by the Tobacco industry. It cannot overreach itself to impose restrictions on movie makers in this regard. It needs to be examined whether the Health Ministry has a locus standi on this specific issue.
If the present restrictions fall on legal grounds as expected then, rather than the Minister, the concerned bureaucrats in the Health and Law Ministries should be held accountable for not guiding or for misguiding the Minister. This is actually the second issue in which the Health Ministry's action appears to be bad in law. The first was with regard to ban of non-iodised salt where the action seems to be not only unconstitutional but also ultra vires the Act under which it has been taken. (see)

The Justification Issues

Not only is the Health Ministry’s decision legally unsustainable, it is even untenable for not having a proper justification.

No credible basis:
The decision apparently relies upon a few observational studies made in the USA, which have come up with ‘likely to’ scenarios. Even if such studies are based on sound methodologies, it is well neigh impossible to prove them because they show the likelihood of certain results at some undefined future time. Observational studies have their own limitations while trying to determine causality, unlike intervention studies. All such research faces the challenge of isolating the effect of movies from personalities of individuals, the parenting characteristics and surrounding influences of the living environment. It would be wrong to consider them to make decisions with long-term implications like restricting freedom of expression.
It is interesting to note the observations in a testimony given by the President of The Motion Pictures Association of America on 11th May 2003 before the U.S. Senate Committee:
“Correlations,” as brought up in the Dartmouth Study, raise the possibility of a “causal” relationship, but provide no proof of one, according to the acceptable standards of social science research. It is necessary to recognize the infirmities of drawing absolutes from social science research, particularly when attempting to influence a change in what is believed to be the root cause of a particular human behavior.”

Other reasons for smoking initiation:
Even if for the sake of the debate, results of such studies in other parts of the world are to be discussed, it is clear that the real drivers for initiation of smoking by an individual are the realities of his/her own immediate surroundings rather than the abstract make-believe world of movies. e.g. A Youth Smoking Survey conducted in Canada listed the following reasons for youth starting to smoke:
Friends smoke/Peer Pressure
Mother or father smoke
Brothers or sisters smoke
Popular kids smoke
It is cool
Something to do
It is not allowed
It is relaxing
Weight Control
Sources: Youth Smoking Survey 2002 and here
Nowhere is smoking in movies mentioned as a specific reason although it could, possibly, be covered under the term ‘Other’ (10% of the sample) amongst all other miscellaneous unspecified reasons.
Even in the Global Youth Tobacco Survey undertaken in India, watching smoking scenes in movies is not one of the factors associated with tobacco use. (page 80)

Effect of smoking scenes, if at all there, can be countered
While several observational ‘studies’ have tried to infer that smoking scenes in movies are likely to lead adolescents to smoke, they only indicate ‘likelihood’ of this happening. On the other hand, several studies have found that for teen audiences, anti-tobacco spots shown before the movies with on-screen smoking countered much of the promotional effect of smoking. (Uni.of Calif., San Fransisco Inst. of Health Policy Studies.). Another study, which indicates that young people are susceptible to Hollywood images that glamorise smoking, also reveals that youths’ views about smoking are malleable and that anti-smoking advertising can have a discernible impact. When teens were shown an advertisement that implied that their peers view smokers as unwise, unattractive, and misguided, the image of smoking was tainted for them. Those who saw the anti-smoking advertisement experienced negative thoughts about the movie characters who smoked, and these thoughts apparently impeded positive forbidden fruit reactions.

Despite rise in smoking scenes, smoking rates decline
Some U.S. studies have tried to show that the number of smoking scenes in U.S. movies have significantly increased over the last few decades. e.g. Glanz & others have simply made an analysis of the rise in smoking scenes in movies which show a significant increase between 1980-82 and 2002. At the same time, there are studies, which show that the proportion of young people who have ever tried cigarettes has actually declined quite dramatically since the peak rates reached in 1996 and 1997. (Uni. of Michigan December 2004 Monitoring for Future Study) In another study made in Canada, it was found that the prevalence of smokers between 1994/95 and 2004 amongst young persons declined significantly:
15-19 years from 29% to 18%
20-24 years from 35% to 28%
(Canadian Tobacco Use Monitoring Survey 2004)
In 2002, according to the Youth Smoking Survey, 25% of youth in grades 5 through 9 reported ever trying any tobacco product compared to 42% in 1994
According to 2004 Healthy Youth Survey by Washington State Dept. of Health, the rate of smoking among youth has dropped by about half since 2000.
In Maine, a U.S. State known for its tobacco control programmes, adult per capita consumption has continued its downward trend, declining more than 26 percent between 1997 and 2003. The rate of smoking among high school students declined nearly 48 percent (and among middle school students, 59%) during that same time period.
It is pertinent to note that in none of the regions covered by these Reports, is there a restriction on showing smoking scenes in movies.
If these results are seen in juxtaposition, the conclusions of the studies, which show that it is ‘likely’ that smoking scenes may lead adolescents to smoke are not justified. This is because according to those studies, the incidence of smoking scenes in movies has sharply increased, which should have led to more adolescents taking to smoking. What has actually happened and is actually happening (not ‘likely’ happened) is exactly the opposite.

No relevant Indian Studies:
The Government document “Report on Tobacco Control in India 2004” admits:
“Surveys conducted with the objective of providing the prevalence of tobacco use are rare in India.” (page 66)
"About 45 surveys conducted since 1960s in urban and rural areas are available, covering different age groups, but only a handful were large enough to be representative of the area studied." (page 73)
Not one of the limited studies made, concerns itself with effect of smoking scenes on smoking initiation.
A study on the portrayal of tobacco in movies in India was conducted in 2003 by one Strategic Mediaworks for Tobacco Free Initiative of WHO. The study largely focused on an exhaustive analysis of tobacco scenes which does not automatically lead to the conclusion that such scenes induce tobacco use.
The study also included responses on exposure to such scenes by youngsters between 14-19 years of age. However, the study has various limitations. The respondents were selected from the top four socio- economic classes. Movie watching was used as a filter to select the youngsters – only those teenagers who watched at least two movies a month were considered suitable for the research. The total sample size was 300 coming from four cities viz. Delhi, Mumbai, Chennai and Hyderabad. The sampling methodology used, therefore, does not lend itself to extrapolation for the whole country and the different social, economic, demographic and cultural components. Interestingly, prima facie, the responses from the sample do not lead to any definitive conclusion that tobacco scenes lead to tobacco use. E.g., The responses acknowledge an influence of the movies in the lives of younger people but as far as smoking scenes are concerned, there is no decisive link. The smokers in the study had much to say on this. Most smokers openly admitted to taking up smoking as a fashion – not necessarily by watching movie scenes. The movie scenes appeared to have an impact only as far as copying the styles of smoking of different characters in the movies was concerned. The primary trigger to smoking is simply the need to fit in or peer pressure, which is already a known factor.
Obviously, the study results are not relevant enough or sufficient to lead to the conclusions that the Government has apparently reached.

Relevance of external studies to India
As the Government document “Report on Tobacco Control in India 2004” admits (page 20 of the Report):
“The global literature is only of limited help in assessing the problem of tobacco use in India, since the dominant and the most researched from of tobacco use globally is cigarette smoking. In India, cigarette smoking comprises a small part of the tobacco smoking problem and a minor part of the overall tobacco problem.”
The report further states:
“Geographical area is a determinant of the type of tobacco use and prevalence of usage”
e.g. current rate of tobacco use varied between
3.3% in Goa to 62.8% in Nagaland.
The Dartmouth Medical School Study, to which the Health Minister recently referred, was just published in November 2005, after earlier studies on the same subject. This study by James Sargent and others (working on a 5-year sponsored award project), suggests that exposure to movie smoking accounts for smoking initiation among over one third of US adolescents. The fact, however, remains that the results of a study involving 6522 adolescents could not be simply applied to India as if India were part of USA. Even in that study, differences were found between ethnic groups where some ethnic groups were exposed to more ‘movie smoking’ than others.
What the Ministry is trying to do is to simply lift the results of studies made in an alien country and apply the same to the 1.1 billion population of India with a completely different social, cultural, demographic and economic profile. With the diversity prevailing within the country itself, it would be difficult to apply even results of observational studies from one part of the country to another. It completely defies reason to apply the abstract ‘likely to’ results of studies in USA to India in order to make such an important decision that impinges on a fundamental right.
Another study by the same Dartmouth Medical School says that adolescents who watch too many movies that show people drinking will increase the chances of teens experimenting with alcohol. Would it be reasonable to ban scenes containing alcohol use in movies based on a study with such vague notions of what is likely to happen?

Superfluous move:
It is generally recognized that the initiation of smoking starts at quite an early age. e.g. According to The Report on Tobacco Control in India, initiation to tobacco products before the age of 10 years (an age where a child is hardly likely to be exposed to movies that would actually induce the child to smoke) is increasing. (page 83)
In a 2003 study of 16.6 million people in Canada, it was found that the smoking initiation age in case of nearly 84% was less than 20 years.
According to a study, currently, individuals who reach adulthood without starting to smoke are unlikely to ever become cigarette smokers. Over 95% of the initiation of regular tobacco use occurs prior to age 25, and the highest rates of initiation occur between the ages of 15 -17 years.
It is, therefore, assumed that the move to ban tobacco use scenes is primarily aimed at preventing initiation amongst adolescents of impressionable minds that would otherwise take to smoking simply by watching a movie. It would be indeed far fetched, even naïve, to assume that even grown ups would be induced to start smoking by watching smoking in movie scenes. Conversely, it would be foolhardy to think that by NOT being exposed to movie/television scenes involving tobacco use, existing users would be giving up on tobacco use.
Now, the Government has already prohibited sale of tobacco products to persons less than 18 years of age in terms of the Tobacco Control Act, 2003. If this legal provision is implemented, as it should be, obviously a ban on tobacco use scenes is entirely redundant. Even assuming that an adolescent is tempted by watching a movie to use a tobacco product, a stricter regulation already exists that would DENY ACCESS to tobacco products to the person. A ban on movie scenes or, for that matter, even an adult rating to movies containing tobacco use scenes as some have proposed, is clearly meaningless.
This move by the Health Ministry becomes redundant also in view of the stand already taken by the Central Board of Film Censors about discouraging scenes glamorizing smoking in movies.
It is pertinent to note that even the Dartmouth study, which the Health Minister cited, does not recommend any ban on the lines proposed in India. Nor, for that matter, does the WHO Framework Convention have any specific recommendation in this regard. The status of legislation in various countries on tobacco control can be found here.

Of whims and fancies
There is no denying the fact that tobacco use has serious implications for the health of the nation and the Government is rightly concerned to regulate and reduce tobacco consumption.
But any actions that are taken cannot be based on emotions and half-baked theories. They have to be backed by sound bases, a sense of balance and convincing rationale. To yield results, it is necessary to have a comprehensive programme comprising of various actions and plans based on proper studies of motivators and de-motivators to tobacco use specifically in the Indian context, rather than blindly accepting results of irrelevant external studies to take a decision of doubtful utility. If the Ministry cannot be bothered with the effort needed and knowing the penchant of the Government for gobbling up external advice, it can base its plans on the guidelines of the Framework Convention on Tobacco Control (FCTC), guidelines of the Center for Disease Control or any of the practical plans that have been successful in other parts of the world.
In focusing on an area i.e. movie scenes containing tobacco use, which in the overall context can at best have a very insignificant impact on tobacco use, the Government is only displaying its inclination for slap-dash solutions bordering on gimmickry.
Indeed, to highlight the near-absurdity of the results from studies that the Government relies upon, the case of the movie Titanic is relevant. In one of the most popular movies from USA in recent times – TITANIC - both the principal characters are shown lighting up, equating cigarettes with romance and rebellion. This movie was seen by 100 million viewers around the world. Going by the hypothesis propounded by some of the studies mentioned, hundreds of thousands of the viewers would have been induced to smoke, based on such celebrity endorsement in Titanic - something that is just not likely to have actually happened.
If the Health Minister, instead of focusing on real issues, still wishes to persist with the idea, it would only lend credence to the view that the action arises out of his party’s past campaign against film star Rajnikanth for supposedly spoiling the youth by glorifying smoking on screen.
It would be a pity if the Government of India were to function on such frivolous considerations.

Rajnikanth...bete noir

Bawss, just my finger, not a fag, okkay?

PRAJATANTRA is against smoking and other forms of tobacco consumption but values the fundamental freedoms guaranteed by the Constitution of India