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 & Ors.]..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."Whether there is any infringement of Section 5 of the Act of 2003 is a question involving statutory interpretation and factual assessment. In view of the statutory scheme under the COTPA Act of 2003 and the Rules, such matters are to be decided by the expert body constituted under the Act, namely, the Steering Committee, after affording an opportunity of hearing to the parties. The Steering Committee is empowered to act suo motu, and any person may bring to its notice an alleged violation of Section 5 of the Act of 2003", the Court 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 competent expert statutory authority, filed the petition without examining the relevant legal position, and without verifying the necessary material, including the presence of a 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 slanders, the Writ Petition is dismissed," the Court's judgment 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 petitioner contended that 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..He thus prayed for directions to restrain the author and the publisher from further circulating or selling the book with the alleged cover picture. .However, Penguin Random Book House of India, the publisher of the book, argued that the petitioner was misrepresenting the provisions of the statute as it focuses solely on the prohibition of advertisements of cigarettes. They submitted that although depictions of smoking on book covers is not covered by COTPA, they had voluntarily added a disclaimer in the book stating that the depiction is not intended to promote smoking. .The Court at the outset took a very dim view of the manner in which the petition was filed, especially considering the fact that the petitioner is a practicing advocate.The Court noted that the only annexures were a photo of the book cover and a copy of the COTPA. It further noted that the petitioner had attempted to distort the language of the statute, withheld the fact that there was a disclaimer on the back cover of the book, and had not even attempted to approach the Steering Committee which is the statutory authority to consider such matters. The Court also opined that the petition was filed only to garner self-publicity and cast aspersions on Arundhati Roy's character. It, therefore, deemed it fit to dismiss the petition. .The petitioner was represented by Senior Advocate S Gopakumaran Nair and advocates S Prasanth, Helen PA, Athul Roy, Renuka Venu, Indrajith Dileep, and Amala Anna Thottupuram..Penguin Random Book House of India was represented by Senior Advocate Santhosh Mathew, and advocates Anil Sebastian Pulickel, Arun Thomas, Veena Raveendran, Karthika Maria, Shinto Mathew Abraham, Leah Rachel Ninan, Mathew Nevin Thomas, Karthik Rajagopal, Kurian Antony Mathew, Apartna S, Noel Ninan Ninan, Adeen Nazar, and Arun Joseph Mathew. .Central Government Counsel Krishna S appeared for the Centre. .[Read Judgment]