Kerala High Court dismisses PIL against Arundhati Roy's smoking photo on book cover

The Kerala High Court on Monday dismissed a Public Interest Litigation (PIL) petition against Arundhati Roy's latest book 'Mother Mary Comes to Me' over its cover which shows her smoking a cigarette allegedly without the mandatory health warning [Rajasimhan v Union of India].

A Division Bench of Chief Justice Nitin Jamdar and Justice Basant Balaji had previously flagged some serious shortcomings in the PIL, noting that the petitioner had failed to disclose the fact that the publisher had included a disclaimer about smoking on the back side of the book.

The Court today held that it is not the forum to decide on such matters.

"In view of the statutory scheme under COTPA Act, 2003 and Rules, such matters are to be decided by expert bodies constituted under the Act after hearing parties," it said.

The Court also expressed reservations about whether the plea was filed in public or publicity interest.

"The petitioner, despite making him aware, has refused to take up the issue before the statutory authority, filed a petition without examining g relevant legal position, without verifying the necessary material, including the presence of disclaimer on the book, has sought to invoke the extraordinary jurisdiction of this court under the guise of public interest. In light of these circumstances, keeping in mind the caution that courts must ensure that public interest litigation is not misused as a vehicle for self publicity or for engaging in personal slander, the writ petition is dismissed," the Court's order said in this regard.

The PIL was filed by advocate Rajasimhan contending that the image of the author smoking a cigarette glorifies it as a symbol of intellectual and creative expression.

Rajasimhan clarified that he was not challenging the contents or the literary substance of the book.

According to the plea, the book is accessible to all and has the potential to send a misleading message to the impressionable youth, particularly teenage girls and women that smoking is fashionable.

"The said depiction amounts to advertisement of the book and indirect advertisement and promotion of smoking and tobacco products, particularly since Ms.Arundhati Roy is a globally renowned public intellectual, and her actions exert a strong influence over youth and the reading public, particularly the teenage girls and womenfolk who are still keeping aloof in the Indian society from openly and publicly displaying smoking and drinking habits," the petitioner contended.

As per the petition, such depiction is violative of the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003’ (COTPA) and the 2008 Rules.

Section 7 and Section 8 of the COTPA mandates statuary health warnings such as 'Smoking is injurious to health' or 'Tobacco causes cancer' on any depiction of smoking. The book cover fails to carry such warnings, amounting to indirect advertisement of tobacco products expressly prohibited by law, as per the petitioner.

He thus prayed for directions to restrain the author and the publisher from further circulating or selling the book with the alleged cover picture.

He further urged the Court to order the Union government, Press Council of India and the State government to ensure compliance with COPTA, including re-publication of the book cover with appropriate public health warnings.

Senior Advocate S Gopakumaran Nair appeared for the petitioner.