Creative Liberty: India's Anti Tobacco Groups Become the Butt End of the Joke
Posted: Monday, February 25, 2008
by Susheel Bellara
How India 's Anti Smoking Laws look set to become brutally exposed by an actor, a quick puff and a cricket match.
It is ironic and perhaps fitting that in a country where Indian films and the sound of willow on ball is worshipped by all creeds and ages, a cricket match and an actor become the theatrical catalyst to expose the Anti Tobacco laws in India.
Dr Salkar, the secretary of the NGO told the press that NOTE was considering suing Shahrukh Khan for committing illegal acts under India's Anti-tobacco law. In particular it relies upon Sections 4 and 5 (3).
Without drumming home the legislative conundrums of these sections, the legislative framework is not difficult to follow:
Section 4 provides:
No person shall smoke in any public place:
Provided that in a hotel having thirty (it's thirty, not dirty) rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made.
Section 5 (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.
On an initial viewing, these sections appear to carry a fair amount of force. However, as is often the case with Anti Tobacco laws around the world, the legislation often leaves enough holes and escape routes for the accused to plunge into without too much of a fight. It may be harsh to blame the legislative draftsmen in such cases as the intention is always commendable. However, it is an unfortunate and a common tale with Anti Tobacco Laws in that there is almost always a victory to the accused due to a technicality or in some cases, poor drafting. In this case, it is odds on that Shahrukh Khan will come through victorious and the Anti Tobacco brigade will have heads buried in their hands.
Section 4 already discounts for places with seating capacity of more than 30 persons. The 20/20 Cricket match was played in open air, and the Brabourne stadium in Mumbai has a seating capacity of 20,000. It is unlikely that Section 4 can be used as effective ammunition at all in such prosecutions. It is worth noting that Sharukh Khan has already indicated he can throw the claim out under this section without breaking much sweat.
Section 5(3) is another example of hasty drafting with little or no proper thought given to the varying circumstances of who the smoker is and what the intention is behind the smoke. The Section fails to make a distinction between a person smoking for himself/herself and a person smoking for an advertising campaign. If the NOTE is to really put any effort into its prosecution then it must firstly consider the basis of its case. There must be anxious scrutiny on the individual and the intention of that person when he does smoke in public if Section 5 is to form the arsenal of any prosecution. The key question is whether the individual is advertising a particular brand by his public use of cigarettes or is he/she just smoking for his own addiction?
It is evident that unless Shahrukh Khan is seeing flaunting the cigarette brand prominently he is perfectly entitled to rely on his long term addiction. The NOTE is left with the unenviable, difficult and timely task of conducting researches, analysing press photos, monitoring gestures and undertaking discreet viewings of celebrities and individuals before it can even consider successfully prosecuting such acts.
The brutal truth about the effects of smoking in India is that tobacco-related cancer itself contributes to 40 per cent of cases in India . Most of the patients undergo an agonising phase resulting into untimely deaths and sufferings in the age group of 30 to 50 years. The New England Journal of Medicine recently published a study which showed that India is suffering a smoking epidemic that is likely to kill nearly a million people a year by 2010.
The saddest aspect of this particular Shahrukh cricket' case is that it has and will most probably highlight fundamental flaws in India 's Anti Smoking laws. The opportunity to launch prosecutions against celebrities for breaching smoking laws may well have set a worthwhile series of precedents in a county where the laws are often forgotten soon after they are passed. It is likely that the case will simply rip open the holes in the legislation and it would be a shame if the opportunity is lost. It is likely that defeat for the NOTE will have far reaching consequences.
A further nail in the coffin for the Anti Tobacco groups came in the form of the recent creative liberty' defence put forward again by Shahrukh Khan when criticized by India 's health minister for smoking on screen in films. Although it may seem a rather exotic and colourful argument, it is evident that such defences are only put forward because the legislation has no force. There is every likelihood that such flamboyant suggestions will succeed. It was incumbent on the Indian government to impose severe sanctions on those who entice or encourage smoking in films but it failed to do so. In 2006, the Health Minister urged outright ban on smoking on screen but his pleas fell on deaf ears.
The NOTE recently stated that cinema with its advanced techniques and imagery can convey meaningful emotions in a very subtle manner without resorting to crude symbolism. The penchant for creativity can find several non-violent avenues for its release.
It is of little use to make such suggestions if Anti Tobacco groups are not prepared to fight the full 12 rounds. The NOTE has to be tough if it wants to make a fist of the fight and prove itself as a champion of the cause. If the creative liberty' argument is a valid one or if it is taken as an arguable point, then steps should now be taken to curb the amount of reel time given to smoking in any one motion picture. Simply pleading to the film fraternity on grounds of moral responsibility is not enough and such cries will often result in humiliating responses. If the Anti Tobacco Groups are to succeed then it is now time to rip up the legislation and get back to the drawing board.
Susheel Bellara
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Top-level comments on this article: (2 total)NOTE has to win. If it doesnt feel it can win then it would be best to withdraw and start properly
They wont win. its India. hope that arrogant twat gets shafted.
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