Allahabad High Court
Aditya Kumar Jha vs Union Of India Thru.Secy.Information & ... on 3 January, 2017
Bench: Amreshwar Pratap Sahi, Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Case :- MISC. BENCH No. - 27754 of 2016 Petitioner :- Aditya Kumar Jha Respondent :- Union Of India Thru.Secy.Information & Broadcasting Min.&Ors Counsel for Petitioner :- Prakash Srivastava,Aditya Kumar Jha Counsel for Respondent :- C.S.C.,A.S.G. Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Devendra Kumar Upadhyaya,J.
(Delivered by Hon'ble D. K. Upadhyaya, J) This writ petition, filed by a practising lawyer under Article 226 of the Constitution of India in public interest, seeks a direction to the Union of India as well as the State Government to stop publication and broadcasting of advertisement of a beverage "Rooh-Afza", which is a product of M/s Hamdard Laboratories (India), New Delhi-respondent no.5.
The primary objection of the petitioner to the advertisement in question is occurrence of the phrase "ykyp ,d cqjh dyk gS". The word "cqjh" in the said phrase has been depicted to have been scored off. The said advertisement has been published in various newspapers and is various other media, such as, on-line electronic media, facebook, picture halls, posters, banners and hoardings.
Submission of learned counsel appearing for the petitioner is that occurrence of the alleged offensive phrase in the advertisement is against the Indian culture and is adversely affecting young children and youth. It has been stated in the writ petition that after watching the advertisement, a legal notice was sent by the petitioner to the respondent no.5 stating therein that the young children are innocent and it is the collective responsibility of the society to provide a conducive atmosphere for their development, however, the advertisement in question is giving a wrong message to the younger generation. The petitioner has further stated that the said notice was replied by the respondent no.5 through his Advocate wherein it has been informed to the petitioner that the advertisement has been used only to promote the product and the same does not in any manner hurt either religious or social value system.
Submission of learned counsel for the petitioner is that the young children are on one hand being subjected to inbibe "ykyp ,d cqjh cyk gS" as a part of Social Value System through textbooks and on the other hand, the impugned advertisement containing the phrase "ykyp ,d dyk gS" is causing confusion in their minds as to what is correct. The petitioner in the writ petition has extracted certain textbooks and dictionaries to bring home the point that the impugned advertisement is causing ill effects on the intellectual growth amongst the young children in the society.
Advertising has grown as an important tool in developing strong branding of the products. It is used to enhance buyers' response to the products which in turn enhances the possibilities of increased profitability. Any advertisement is primarily meant to promote a product and its influence on the consumers cannot be denied. However, to regulate the advertising industry, there is no legislative statutory mechanism available, though considering the vastness and depth of impact of advertising on the consumers, it becomes necessary to regulate the same.
In absence of any legislation, at present, advertisements in India are regulated by a non-statutory body known as "the Advertising Standards Council of India". The said body is a voluntary Self-Regulatory Council established in 1985 to promote responsible advertising and to enhance public confidence in advertisement. The objectives of the said Council are to ensure truthfulness and honesty of the claims made in advertisements and to ensure that the advertisements are not offensive to generally accepted standards of public decency. Further objectives of the said Council are to provide safeguards against the indiscriminating use of advertising for promotion of hazardous products and further to ensure that advertisers observe fairness in competition.
The Advertisement Standards Council of India has adopted a Code for Self-Regulation in advertising which applies to all involved in creation or publication of advertisements.
The said Code adopted for Self-Regulation declares certain fundamental principles and fixes responsibility for observance of the Code with all who are involved in commissioning, creating or publishing any advertisement. The Code provides that all advertisers are excepted to observe the Code while recognizing that advertising is a legitimate means for the seller to evoke interest in his products. The emphasis of the Code is on truthful and honest representations and claims made by advertisements and also on safeguarding against misleading advertisements.
Clause 3.2 of Chapter-III of the said Code under the heading of "Against Harmful Products/Situations" provides that advertisements addressed to minors shall not contain anything which might result in their physical, mental or moral harm or which exploits their vulnerability. Clause 3.2 of Chapter-III is quoted below:
"3.2. Advertisements addressed to minors shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental or moral harm or which exploits their vulnerability."
Chapter-II of the Code clearly stipulates that advertisements should not be offensive to generally accepted standards of public decency. It states that advertisements should contain no indecent, vulgar or repulsive content, which is likely to cause grave and widespread offence in the light of generally prevailing standards of decency and propriety. The relevant extract of Chapter-II of the Code is quoted hereunder:-
"Advertisements should contain nothing indecent, vulgar, especially in the depiction of women, or nothing repulsive which is likely, in the light of generally prevailing standards of decency and propriety, to cause grave and widespread offence."
In terms of the aforesaid Code adopted by the Self-Regulatory body of the advertisers, the Advertising Standards Council of India, clearly takes care of the contents in an advertisement which may be offensive to the prevailing standards of the decency and propriety. It also prohibits advertisements from having any content which might cause physical, mental or moral harm to the minors or which may tend to exploit their vulnerabilities.
As to whether the advertisement in question, specially the alleged offensive phrase occurring therein, is indecent or against the prevailing standards of decency and propriety or it causes moral harm or it tends to exploit vulnerability of the young children has to be seen and understood keeping in view the context in which the alleged offensive phrase occurs in the advertisement. The objection of the petitioner to the advertisement is to the phrase "ykyp ,d dyk gS", however, it is to be noticed that in the said phrase, the word "cqjh" is also mentioned though it has been depicted to have been scored off. The said phrase cannot thus, read to assert that ''greed is an art'. The phrase appears to have been used in a manner which has the potential of catching the imagination of the consumer. To appropriately understand the aforesaid phrase in its correct prospective, clause 1.6 of Chapter-I of the Code under the heading of "Truthful & Honest Representation" needs to be referred to herein. The said clause permits exaggerations provided it has been applied with an intention to amuse or to catch the eye of the consumer. It further provides that such obvious untruths or exaggeration are clearly to be seen as humorous and are not likely to be understood as making literal claims for the advertised products. Clause 1.6 of Chapter-I of the Code is extracted herein below:-
"1.6. Obvious untruths or exaggerations intended to amuse or to catch the eye of the consumer are permissible provided that they are clearly to be seen as humorous or hyperbolic and not likely to be understood as making literal or misleading claims for the advertised products."
Thus, what is relevant is not the literal meaning of the phrase; rather its impact on the consumer and if the impact tends to create humorous or hyperbolic impact and is not likely to be understood as making literal or misleading claims, the same will be permissible. Writing copy in an advertisement is an art and a copy writer will have thus, the freedom to express his own view and he will also have freedom of depicting the product in a manner which might, at the first sight, appear to be obvious untruth and exaggeration, however, its final impact on the reader/consumer is humorous. Such an expression may sound as an obvious untruth or an exaggeration, however, if it ultimately causes an impact on the reader/consumer which is humorous or hyperbolic, the expression would be within the Code.
If the alleged offensive phrase in the advertisement in question is examined in the light of what has been observed herein above, it does not appear to have the potential of being understood literally, neither does it make any misleading claim for the advertised product. The expression is clearly humorous and appears to have been created and presented in a manner which catches the eye of consumer/reader.
Having observed as above, we may also state that the petitioner has not been able to make out a case where infringement of any legal provisions, statutory or otherwise, can be said to be found.
In absence of violation of any statutory provisions or any other law, we are not inclined to interfere in this petition.
The petition is, thus, dismissed.
Order Date :- 3.1.2017 akhilesh/-
[Devendra Kumar Upadhyaya, J.] [Amreshwar Pratap Sahi, J.]