Day 4: Arguments before the Karnataka HC on validity of Health Warnings for Tobacco Product Packaging

August 29, 2016

Day 4 of the hearing before the Karnataka High Court witnessed the continuation of arguments by the Counsel for the Tobacco Institute of India, who is also making submissions on behalf of the Indian Tobacco Company (ITC).


The main arguments made today were that the packaging and labeling rules of 2008 and the 2014 amendments to these rules are ultra vires Article 19(1)(a), which guarantees free speech and Article 19(1)(g), which guarantees the right to freedom of trade.


The challenge hinged on the argument that the impugned Rules did not come within the various categories or “silos” that would constitute reasonable restrictions under Articles 19(2) and 19(6). Reliance was placed on the reasoning employed in Shreya Singhal v. Union of India (AIR 2015 SC 1523), wherein it was held that the validity of any legislation must be tested on grounds of whether it falls under the eight categories of reasonable restrictions under Article 19(2). The Counsel argued that, as neither public health nor public interest is designated under any of the reasonable restrictions, the impugned Rules constitute an unreasonable restriction. The judgment of Indian Express Newspapers (Bombay) Pvt. Ltd.  v. Union of India (1985) 1 SCC 641 was also referred to state that the grounds for any restriction must relate with proximity to the categories under Article 19(2).


The Counsel stated that even if the restrictions placed by the impugned Rules fall within the 8 categories of 19 (2), they still had to be “reasonable” and that they were not being imposed in a “least restrictive manner”


Under Article 19(1)(a), the Counsel argued that the right to freedom of speech and expression of the smoker was being taken away and also the “Right to commercial speech” of the manufacturers was affected. The arguments largely relied upon Tata Press v. MTNL, (1995 AIR 2438) in which Article 19(1)(a) was extended to bring within its ambit, a protection of the right to commercial speech. The Counsel argued that the right to commercial speech of companies is being curtailed by the need to print the specified health warning on 85% of one side of the cigarette panel, as it leaves no space on the pack for the brand or company name. It was therefore stated to restrict the manufacturers’ right to commercial speech.


At this juncture, the Respected Judges of the Hon’ble Court asked the Counsel how the right of a smoker/consumer would be violated under Article 19(1)(a). In response to this, the Petitioner’s Counsel, holding a cigarette pack with the 85% health warning displayed on it, suggested to the Court that the pack functions as a “mini billboard” to advertise the State’s mandate. The smoker operates as “a mule for the State” to advertise this mandate upon purchasing the product, which infringes on his right not to be forced to speak or express certain matters. To further elaborate, the Counsel drew an analogy wherein persons who purchase cars could be forced to print “Vande Mataram” on their license plate. This would be highly restrictive of the use of their private property. The Court asked how this would constitute a violation of freedom of speech because if the smoker did not like the packets, he/she could remove the pack after buying it, and keep the cigarettes in something else. The Counsel replied that it would not be a measure that is “least restrictive” of the rights of the consumer or manufacturers.


On being asked to elaborate how the Freedom of speech includes a right not to speak, the Petitioner’s Counsel referred to Bijoe Emmanuel v. State of Kerala, (1987 AIR 748) wherein the Supreme Court upheld the right of two school children belonging to the Jehovah’s Witnesses faith, to not be compelled to sing the National Anthem. The Judges pointed out that the case substantially addressed the religious freedoms of the children to not sing the national anthem, in line with their religious faith.


The Counsel emphasized that the message on the cigarette packs is “brow-beaten upon smokers as well as non-smokers” and that this form of “compelled speech” violates free speech. Comparing the standards of free speech in the United States with that of India, it was argued that the Indian Law has a higher threshold of Constitutional scrutiny. In reference to the position in the United States, wherein the mater is dealt with in terms of “abridged speech”, the requirement to print a health the warning on both sides would leave no place for a “turn of mechanism” thus, completely impinging upon free speech.


The Counsel then cited Deen Dayal Singh v. Union of India (1983 SCC 645)  in support of the argument that, for an alleged constitutional violation of Articles 19 and 21, the burden is not on the petitioner to show whether restrictions are reasonable, or whether the procedure established by law is just, fair or reasonable.


Again, citing Shreya Singhal v Union of India, the counsel quoted that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance. The Counsel emphasised on the importance of symbolism, which the Supreme Court of the United States considered as a most expressive form of free speech. To curb this symbolic expression (such as through the “trade dress” in the present context), there must be reasonable ground to infer that serious evil will ensue and must be prevented.


Towards the end of his arguments for the day, the Petitioner’s Counsel referred to totalitarianism in the context of thought control and stated that the graphic warnings are being forced upon consumers to dissuade them from consuming a commodity, in line with their forced mandate. The example of the prohibition on alcohol consumption imposed by the British Rule upon Indian natives were used to demonstrate that the Government similarly considers consumers of tobacco products incapable of making a mature decision, and need to be restricted from falling into error.