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Striking down the Government’s notification of 2006, the Delhi High Court today allowed the depiction of smoking scenes in the films as the fundamental right of a film maker to show his creative abilities.

Justice Sanjay Kishan Kaul ruled that the Govt’s rule making powers can only curb the advertisements of smoking and not ban on its depictions. All depictions cannot be termed as advertisements, he said.

Giving relief to the Print and Electronic media, Justice Kaul said showing sports events sponsored by tobacco companies or of cigarette brands cannot be a violation of the Cinematograph act.

Quoting an example of a car rally sponsored by famous cigarette company ‘Marlbro’, the Judge said there is nothing wrong to show the car rally having a brand of the cigarette on its body and similarly a photo shown in the print media with a Marlbro poster behind the prize winner or something similar cannot amount to violation of the laws.

Justice Kaul was appointed as Judge after a two judge bench of Justice Mukul Mudgal and Sanjive Khanna last year gave a dissenting judgement. Both the judges had different views on the subject so Justice Sanja Kishan Kaul was appointed.

Justice Kaul said banning smoking in films violated filmmakers’ fundamental rights of freedom of expression and speech. He said a filmmaker cannot have two authorities breathing down his neck.

There is already a censor board which can curb the scenes that glorify the cigarette smoking scenes. There is no need of another regulatory body to curb such scenes, he said.

The Union Ministry of Health and Family Welfare had in May 2005 proposed the ban by notifying the Cigarette and Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules 2005 and by its notification said the rules will be applicable from October 2, 2005.

Film director Mahesh Bhatt in September 2005 through his lawyer Sandeep Sethi challenged the Govt’s notification which banned the smoking scenes in films.

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