2nd SURANA & SURANA & KLE LAW COLLEGE NATIONAL CONSTITUTIONAL

LAW MOOT COURT COMPETITION – 2018

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

Original Jurisdiction

In the matter of,

Civil Appeal No. / 2018

APPELLANT RESPONDENT

All India Media Federation VERSUS Union of India & Anr.

SUBMISSION TO

THE HONOURABLE
SUPREME COURT OF INDIA

MEMORAMDUM ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ 2

ABBREVIATIONS ........................................................................................................................ 3

INDEX OF AUTHORITIES........................................................................................................... 4

CASES ........................................................................................................................................ 4

BOOKS ....................................................................................................................................... 5

INTERNATIONAL TREATIES AND CONVENTIONS AND STATISTICAL RECORDS.........5

STATUES REFERRED ........................................................................………………………………………6

STATEMENT OF JURISDICTION ......................................................………………………………………6

STATEMENT OF FACTS ............................................................................................................. 8

STATEMENT OF ISSUES ......................................................................………………………………………9

SUMMARY OF ARGUMENTS .................................................................................................. 10

ARGUMENTS ADVANCED ...................................................................................................... 11

ISSUE ONE .............................................................................................................................. 11

ISSUE TWO .............................................................................................……………………………………..15

ISSUE THREE.......................................................................................................................... 18

PRAYER…………………………………………………………………………………………25

Memorial on the behalf of the Petitioner

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ABBREVIATIONS

¶ : Paragraph

ACLU : Aressian Civil Liberties Union

AIR : All India Reporter

ALR : Authority for Linking of Rivers

Art. : Article

Hon'ble : Honorable

ICCPR : International Covenant on Civil and Political Rights

MoIB : Ministry of Information and Broadcasting, Government of India

PIL : Public Interest Litigation

SC : Supreme Court

SCC : Supreme Court Cases

UDHR : Universal Declaration of Human Rights

UN : United Nation

Memorial on the behalf of the Petitioner

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INDEX OF AUTHORITIES

CASES

1. Maneka Gandhi, 1978 AIR 597, 1978 SCR (2) 621.

2. E. P. Rayappa v. State of Tamil Nadu 1974 AIR 555, 1974 SCR (2) 348.
3. Pathumma v. State of Kerala, 1978 AIR 771, 1978 SCR (2) 537
4. Maharaj Singh v. State of Uttar Pradesh, AIR 1976 SC 2602:(1977) 1 SCC 155.
5. SP.GUPTA v. Union of India, AIR 1982 SC 149.
6. BandhuaMuktiMorcha v. Union of India 1984 AIR 802, 1984 SCR (2) 67
7. Coffee Board v. Jt. Commercial Tax Officer AIR 1971 SC 870 at p. 877, ¶ 16
8. KharakSingh v. State of U.P., AIR 1963 SC 1295
9. KK Kochunni v. State of Madras, AIR 1959 SC725
10. Ashoka lanka v. Rishi Dixit,(2005) 5 SCC 598:AIR 2005 SC 2821.
11. Rattan Chandra Sammanta v. Union of India, AIR 1993 SC 2276;
12. Gunwant Kaur v. Municipal Committee, Bhatinda, AIR 1970 SC 802 : (1969) 3 SCC 769
13. Century Spg. & Mfg. Co. v. Ulhasnagar Municipality, AIR 1971 SC 1021 : (1970) 1 SCC
582; Exen Industries v. Chief Controller of Imports, AIR 1971 SC 1025 : (1972) 3 SCC
176; Prem Chandra v. Collector, Faizabad, AIR 1970 SC 802.
14. Union of India v. S.P. Anand, AIR 1998 SC 2615
15. Jagdish Prasad v. State of Uttar Pradesh, AIR 1971 SC1224; Ram Chandra v. State of
Madhya Pradesh, AIR 1971 SC 128.
16. Sakal Papers v. Union of India, AIR 1962 SC 305.
17. New York times v. Sullivan,376 US 2541.
18. Indian Express Newspaper(Bombay) P Ltd v. Union of India, AIR 1986 SC 515 at 527.
19. Indian Express v Union of India,(1985) 1 SCC 641.
20. SarojIyerv. Maharashtra Medical (Council) of Indian Medicine, A.I.R. 2002 Bom.95.
21. Ministry of Information and Broadcasting v. Cricket Association Bengal, AIR 1995
SC 1236.
22. Brij Bhushan V. Delhi, AIR 1950 SC 129.
23. Virendra v. State of Punjab, AIR1957 SC 896.
24. S Mulgaonkar In Re AIR 1978 SC 727, (1978) 3 SCC 339, (1978) 2 SCJ 114.

Memorial on the behalf of the Petitioner

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25. Rustom Cowasjee Cooper v Union of India, AIR 1970 SC 1318 at 1319, (1970) 2
SCC 298, [1971] 1 SCR 512.
26. R.Rajagopal v. State of T.N 5(1994) 6 SCC 632.
27. PUCL v U.O.I, AIR 1997 SC 568.

BOOKS

1. MP JAIN, INDIAN CONSTITUTIONAL LAW, (6th Ed, LexisNexis Butterworth Wadhwa, 2010)

2. D.D Basu Shorter Constitution of India (12th Ed. Lexis Nexis, 1999)
3. D.D. Basu, Introduction to the Constitution of India (22nd Edition, Lexis Nexis, 2011)
4. Halsbury's Laws Of India (Media, Technology and Communication),24th Edition.
5. 1-10 ACHARYA DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,
(11th Ed. , Lexis Nexis Butterworth Wadhwa, Nagpur, 2009)
6. 1-3 ARVIND P.DATAR, DATAR COMMENTARY ON THE CONSTITUTION OF INDIA, (2nd Ed. ,
Lexis Nexis Butterworth Wadhwa, Nagpur, 2010)
7. Media Law and Ethics, M. Neelamalar.

8. RAMANATHA AIYER, ADVANCE LAW LEXICON, 2391 (3rd Ed., 2005)

9. Media Law, Dr. Sukanta K. Nanda
10. MP Jain and SN Jain, Principles of Administrative Law, 6th Edition, Lexis Nexis

INTERNATIONAL TREATIES AND CONVENTIONS AND STATISTICAL RECORDS

1. United Nations Charter, 1945

2. Universal Declaration of Human Rights, 1948
3. International Covenant on Civil and Political Rights, 1966

STATUES REFERRED

1. Constitution of India, 1950

2. Cable television Networks (Regulations) Act, 1995

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3. The cable television networks rules, 1994
4. Contempt of Courts Act, 1971
5. Code of Ethics and Broadcasting, News Broadcasting Agency, 1927
6. Indian Penal Code, 1860
7. Code of Civil Procedure, 1908
8. Administrative Law
9. Criminal Procedure Code,.

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STATEMENT OF JURISDICTION

The Hon‟ble Supreme Court of India has inherent jurisdiction to try, entertain and dispose of the
present case by virtue of Article 32 of The Constitution of India, 1950.

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this Article shall not be suspended except as otherwise provided
for by this Constitution

Memorial on the behalf of the Petitioner

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STATEMENT OF FACTS

PART-I

The All India Law Students‟ Association (herein referred to as AILSA) filed a PIL in the
Supreme Court of India seeking appropriate remedy against media citing different incidents
wherein media is alleged to have invaded upon the rights of the people in specific and caused
threat to the societal interest at large.

PART-II

The Supreme Court of India admitted the PIL filed by AILSA and issued a notice to UOI to submit
its reply to the petitioner‟s claims. UOI appeared and after the preliminary hearing submitted
affidavit to take necessary measures to address the unruly behaviour of media houses and to protect
the interest of national security, interest of general public and to safeguard the image and integrity of
the judiciary. Based on the undertaking of the UOI, the PIL was disposed off.

PART-III

To comply with its undertaking to the Court, the UOI initiated process through its Ministry of
Broadcast and Information Technology, drafted rules to regulate the content of media houses,
published the same and issued a public notice inviting objections to the proposed rules. The
Ministry received a huge response in favour of the proposed rules and also objections from
media houses. After considering the responses and objections, the Ministry exercising its power
under the Cable Television Networks (Regulation) Act, 1995 issued several programme code in
place of the existing program code. The Programme Code issued by the UOI came into force with
immediate effect.

PART –IV

The media houses debated the Programme Code and gathered the support of many editors, jurists
and libertarians and under the auspices of All India Media Federation (AIMF) filed a writ
petition in Supreme Court challenging the constitutional validity of the impugned Code. AIMF
challenged the vires of the Programme Code issued by the Union of India.

Memorial on the behalf of the Petitioner

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ISSUES FOR CONSIDERATION

ISSUE 1

** WHETHER THE PUBLIC INTREST LITIGATION WRIT PETITION FILED BY

AIMF IS MAINTAINABLE OR NOT?

ISSUE 2

** WHETHER THE PROGRAM CODE FORMULATED BY UOI IS

CONSTITUTIONALLY JUSTIFIABLE?

ISSUE 3

**WHETHER RULES LAID IN NEW PROGRAM CODE ARE IMPOSING

UNREASONABLE RESTRICTION UPON THE FREEEDOM OF PRESS ?

Memorial on the behalf of the Petitioner

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SUMMARY OF ARGUMENTS

ISSUE ONE:

WHETHER THE PUBLIC INTREST LITIGATION WRIT PETITION FILED BY AIMF

IS MAINTAINABLE OR NOT?

It is humbly submitted before the Hon‟ble Court that present PIL is maintainable against Union
of India since there is sheer violation of fundamental rights of the media federation. The rules
prescribed in the new program code are arbitrary, unreasonable and there is no grounds f
restricting the freedom press.

ISSUE TWO.
WHETHER THE PROGRAM CODE FORMULATED BY UOI IS
CONSTITUTIONALLY JUSTIFIABLE?

It is humbly put forth that the arguments is four folded the program code formulated by ministry
is not constitutionally justifiable as it on the very face of it are[ 1] violative of fundamental rights
and [2]are arbitrary and unreasonable and [3]power conferred to the authority is unguided and
[4]suffers from the vires of excessive delegation.

ISSUE THREE:

WHETHER RULES LAID IN NEW PROGRAM CODE ARE IMPOSING UNREASONABLE

RESTRICTION UPON THE FREEEDOM OF PRESS ?

It is humbly submitted that the new program code imposes unreasonable restriction on the
freedom of press which is implicit from freedom of speech and expression. Hence it can only be
restricted on the grounds stated under article 19(2).

It is submitted that the restriction imposed on the media do not satisfy the grounds stated under
19(2), besides the rules are violative of freedom of speech and equality ,and unreasonably
restricts freedom of press.

Memorial on the behalf of the Petitioner

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ARGUMENTS ADVANCED

ISSUE ONE

WHETHER THE PUBLIC INTREST LITIGATION WRIT PETITION FILED BY AIMF

IS MAINTAINABLE OR NOT?

(¶1.) It is humbly submitted before the Hon‟ble Court that present PIL is maintainable against
Union of India since.

A. RELIEF IS BEING SOUGHT AGAINST THE STATE

(¶2.) Parliament is State u/a 121.: In Maneka Gandhi v. Union ofIndia2 the Supreme Court
observed: “Fundamental rights…weave a „pattern of guarantee‟ on the basic structure of human
rights, and impose negative obligations on the State not to encroach on individual liberty in its
various dimensions.”

(¶3.) t is submitted that the relief claimed by the petitioner is not a relief claimed against a
private party. Federation is aggrieved by inadequacy and arbitrariness of law i.e the rules
prescribed in the new program code laid down by the Parliament and ineffectiveness of the
machinery for enforcement of such laws in the circumstances of the present case as the law and
machiner are not ensuring protection of fundamental rights of the petitioner , media community,
public. The petitioner has a grievance against the Parliament and the Central govt. and both these
institutions are „state‟ within the meaning of Art. 12 of the Constitution.

VIOLATION OF FUNDAMENTAL RIGHTS OF THE CONSTITUION

(¶4.) It is humbly contented that the program code laid by the uio is in gross violation of the
fundamental right of the media community and public, as the program code arbritrarily restricts
the the freedom of speech and expression , right to equality on account of arbitrary action of state
as per rules provided in new program code prescribed3. Besides the program code also violates
the right of media to practice any proffesion, or to carry on any occupation, trade or

1
Constitution of india, (Herein after referred as Constitution).
2
Maneka Gandhi v Union Of India 1978
3
E. P. Rayappa v. State of Tamil Nadu

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business envisaged u/a 19(g). As the rules excessively and arbitrarily restricts the telecast by
media.
(¶4.) It is submitted that the present court is under obligation to protect the fundamental right of
the people of India u/a 32, as supreme court acts “as a sentinel on the qui vive to protect
fundamental Rights”4 More over the program code after violating the fundamental rights of the
people inherently attracts the article 13(2) which makes an obligation on the state to not to make
any law under 13[2] in derogation of the fundamental right and if so then the law will be null and
void to the extent of inconsistency.

THE PETIOTIONER HAS THE LOCUS STANDI

(¶5) It is humbly submitted that the petitioner here in AIMF undoubtedly have the locus standi .
As the Supreme Court anticipated the future development :-
“ where a wrong against community interest is done, no locus standi will not always be a plea to
non suit an interested public body chasing the wrong doer in the court….’locus standi has a
larger ambit in the current legal semantics than the accepted, individualistic jurisprudence of
old.”5
(¶6.) Further BHAGWATI J., enunciated that the case can be regarded as the precursor of public
interest litigation in India :
“whenever there is a public wrong or public injury caused by an act or omission of the State
or a public authority which is contrary to the constitution or the law, any member of the public
acting bona fide and having sufficient interest can maintain an action for the redresseal of
such wrong or public injury.”
THE PETITIONER HAS BONAFIDE INTENTION
(¶7.) It is contented that any member of the public having sufficient interest maintain an action
for the judicial redress for public injury arising from breach of public duty or from violation of
some provision of the constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provision6.
(¶8.) It is asserted that in the instant case AIMF have the locus standi to file the writ petition as
the cardinal tests propounded by Supreme Court in Dr. Meera Massey v. Dr. S.R. Mehrotra,
(1998) 3 SCC 88 : AIR 1998 SC 1153, that there [1] should not be any political motivation not
for publicity and/or for personal animosity against anyone.[2] Persons who move the Courts in
public interest litigation must be fully aware of all what was happening with full grip of all
material facts which will reveal that he was genuinely concerned to rectify the wrong without
any personal animosity against any one. [3]His feeling should be bona fide that he had all the
details and fully equipped with facts and the law that it should be neither politically motivated
nor for publicity. In such a case the Supreme Court observed that the petitioner before moving

4
Pathumma v. State of Kerala
5
Maharaj Singh v. State of Uttar Pradesh, AIR 1976 SC 2602:(1977) 1 SCC 155.
6
SP.GUPTA v. Union of India, AIR 1982 SC 149.

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for PIL should make a research work on question of fact and law for vindicating the cause of
public.

(¶9) It is asserted that AIMF is neither political body nor under any political motivation or under
any concealed animosity against anyone or do not have any ulterior motive behind approaching
before the honorable court, as they have a pias , bonafide intention as well as sufficient interest
as they are representing the media community and the citizens whose fundamental right have
been violated more specifically the fundamental right of equality, freedom speech and expression
, freedom of trade and profession , It is humbly concluded that the Pil should be admissible as
the intention of the petitioner is piased and bonafide .7

ALTERNATIVE REMEDY DOES NOT BAR ISSUE OF WRIT UNDER ART. 32:

(¶10) When a breach of fundamental right is made in the petition there the provisions of other
remedies do not stand in the way of exercising power under Art. 32 of the Constitution of India.
It was held in the case of Coffee Board v. Jt. Commercial Tax Officer8. It is wholly erroneous
to assume that before the jurisdiction of the Supreme Court could be invoked the applicant must
either establish that he has no other remedy adequate or otherwise or that he has exhausted such
remedies as the law affords and has yet not obtained proper redress, for when once it is proved to
the satisfaction of the Supreme Court that by state action the fundamental right of a petitioner
under Art. 32 has been infringed, it is not only the right but also the duty of the Supreme Court to
afford him by passing appropriate order in that behalf9
(¶11) The mere existence of an adequate alternative legal remedy cannot per se be a good and
sufficient ground for throwing out a petition under Art.32 if the existence of a fundamental right
and breach, actual or threatened, of such right and is alleged prima facie established on the
petition.10
EVEN IN HIS PRIVATE INTEREST PETITION IS ADMISSIBLE

(¶12) It is humbly submitted before the honorable court that even in a case similar to the
instant case where a petitioner moves in the court in his private interest and for redressed of
personal grievances , If the court is satisfied that the contention made by the petitioner is
necessary and expedient for the public interest and protect the fundamental rights of the
community , and it is in the interest of the public besides the private interest of the petitioner
, then also this court may accept the PIL writ petition, and will regard the petition as the
public interest litigation 11synonymous to the instant case in hand though the media
federation have their personal interest in the case still the case serves the public interest and

7
BandhuaMuktiMorcha v. Union of India
8
AIR 1971 SC 870 at p. 877, ¶ 16
9
KharakSingh v. State of U.P., AIR 1963 SC 1295
10
KK Kochunni v. State of Madras, AIR 1959 SC725
11
Ashoka lanka v. Rishi Dixit,(2005) 5 SCC 598:AIR 2005 SC 2821.

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vociferously stands for the violation of public‟s fundamental right. Hence the PIL is
maintainable.

In the light of the aforementioned reasons, it is humbly submitted that petition

filed by AIMF in the Supreme Court of India is maintainable

ISSUE TWO

WHETHER THE PROGRAM CODE FORMULATED BY UNION OF INDIA IS

CONSTITUTIONALLY JUSTIFIABLE

(¶12) It is humbly put forth that the arguments is four folded the program code formulated by
ministry is not constitutionally justifiable as it on the very face of it are 1 violative of
fundamental rights and are arbitrary and unreasonable conferred to the authority is unguided
discretion and suffers from the vires of excessive delegation.

Violation of fundamental rights & Unguided discretions

(¶13) The rules prescribed in the new program code are in sheer violation of the fundamental
rights of the people and media community. Violation of article 14 “Right to equality is one of
the magnificent corner-stones of Indian democracy.”12It is bulwark against any arbitrary or
discriminatory state action.

Intelligible differentia and Reasonable classification:

(¶12) The counsel on the behalf of the petitioner humbly submits before this Hon‟ble court that
the ministry action transgress the limits set by Article 1413 of the Constitution. Article 14
envisages equality before law and equal protection of law. .14 The principle of equal protection
does not take away from the state the power of classifying persons for the legitimate purpose.15

12
Indra Sawhhney v Union Of India , AIR 1993 SC 477
13
Art. 14 of the Constitution of India, 1950
14
Ibid.
15
State of Bombay v. Balsara F. N.AIR 1951 SC 609

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16 17
The classification should be based upon two things firstly, it should be based upon the
Intelligible Differentia18 and secondly, the Intelligible Differentia should have a rational nexus
with the object sought to be achieved.19

(¶13) It is humbly contented by the counsel in the current case in hand, that there is absence of
nexus between the basis of classification , moreover the differentiation is unreasonable and
arbitrary as the new program code give unguided discretion on the executive as approval is
needed prior by the Indian Institute of Science, Bengaluru before depicting anything about belief,
it is humbly submitted that a belief is not something which can be defined by some laid down
and proven scientific principles, hence the power given to the IIS bengaluru is lacking a
reasonable nexus (Intelligible differentia), besides it also do not confer any standard or any code
of conduct followed by IIS while approving a program.

(¶14) Similar in the case of sexual assault where prior permission is need before the national
women commission though there is intelligible differentia but the power with the commission is
totally discretionary and arbitrary and arbitrary power is anti-thesis to equality clause.20

ADMINISTRATIVE DISCRETION

(¶15) In order to ensure that the discretion is properly exercised, it is necessary that the statue in
question lays down some norms or principles according to which the administration has to
exercise the discretion. If the action of the administration is arbitrary, discretionary or unequal or
unguided then it will invoke article 1421. Further it is observed that a law conferring absolute or
uncontrollable discretion on an authority negates equal protection of law because such power can
be exercised arbitrarily so as to discriminate between persons and things similarly without

16
“Classification means segregation of classes which have a systematic relation, usually found in common
properties and characteristics.” 2 ACHARYA DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,
1396 (8th Ed., 2007)
17
Kangshari v. State of W.B., 1960 SC 457(484): (1960) 2 SCR 646; Kedar Nath v. State of W.B. 1954 SCR 30:
AIR 1953 SC 404; Ram Sarup v. UOI AIR 1965 SC 247(252): (1964) SCR 931
18
“The expression Intelligible Diffrentia means difference capable of being understood. A factor that distinguishes
or in different state or class from another which is capable of being understood”. 2 R AMANATHA AIYER, ADVANCE
LAW LEXICON, 2391 (3rd Ed., 2005)
19
Laxmi Khandsari v. State of Uttar Pradesh, 1981 SC 873, 891: (1981) 2 SCC 600; Budhan v. State of Bihar, AIR
1970 SC 1453: (1969) 2 SCC 166.
20
E.p royappa v. Union of India, 1974 AIR 555.
21
Shrinivasa Roa v. J veeraiah, AIR 1993 SC 929

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reason. . It means the legislature cannot validly enact a provision, rules etc conferring naked or
arbitrary power on the administration to be exercised by it in absolute discretion.

(¶16) It is submitted that there is excess of administrative discretion as there is utmost possibility
of arbitrary and unreasonable decisions as the legislature has given powers which are arbitrary
and unquestionable.

VIOLATION OF FREEDOM OF SPEECH AND EXPRESSION & FREEDOM OF

PROFESSION

(¶17) Freedom of speech includes the right to express one‟s views and opinions at any issue
through any medium e.eg by words of mouth, writing, printing, picture, film, movie,etc.It thus
includes the freedom of communication and the right to propagate or publish opinion. Freedom
of speech is bulwark of democratic government. Democratic values will not be able to flourish if
there is no grant of freedom of speech , it considered to be first condition of liberty which
protects other liberties in hierarchy, That why it has been regarded as the mother of all other
liberties.

Right to receive information it is submitted by the counsel that freedom of speech includes the
right to acquire information and disseminate the same23.

(¶18) Extensive scope of this right is as much as Article 21 of the constitution i.e. Right to life
and liberty because a right to life and liberty cannot be fully exercisable without exercise of right
to speech and expression. The right as per Article 21 without the right under Article 19 (1) (a)
makes a human being as a slave. It is humbly contented that the new program code is violating
the freedom of speech and expression as the restriction imposed are not falling under the grounds
stated in article 19(2).

VIOLATION OF FREEDOM OF PROFESSION

(¶19) It is submitted that the unreasonable restrictions on the freedom of speech and expression
of press are violative of freedom of profession under 19(1)(g).It is observed by the honorable

22
R.L bansal v. Union of India, AIR 1993SC 978
23
S.P Gupta v. Union of India(1997)4SCC 306

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Supreme Court that the restriction may amount to prohibition in a case if the mischief to be
remedied warrants total prohibition. It is submitted that the restriction imposed by the program
code are more that what was necessary in the interest of the general public”.

EXCESSIVE DELEGATION:

(¶20) The principle of excessive delegation has been laid down in Panama and the same
principle has been adopted in Indian as well. In India, in the matter of In re: Delhi Laws Act is a
seminal case in the area of delegated legislation and majority of judges did play a creative role in
evolving doctrine of excessive delegation.

(¶21) The view propounded by majority was that legislature ought not to delegate its “essential
legislative power” to an outside agency. Further in the matter of, Gwalior Rayon Mills Mfg.
(WVG) Co.Ltd v. Assistant Commissioner of SalesTax25 Khanna J. stated “One of the settled
maxims in Constitutional Law is , that the power conferred on legislature to make laws cannot be
delegated to any other body or authority. Where the sovereign power of the State has located an
authority, there it must remain…”The Constitution… confers a power and imposes a duty on the
legislature to make laws. It cannot abdicate its functions in favour of another.

(¶22) It is contented that Parliament does not possess the legislative power as an inherent and
original power. That power has been delegated to it by constitution. Parliament thus possesses
not a right that it can delegate by its sweet will, but a competence that the Constitution obliges it
to exercise itself. It cannot legally delegate its legislative functions to the executive. Such
delegation would be unconstitutional26.

DETERMINATION OF LEGISLATIVE POLICY AND ITS FORMULATION AS A RULE

OF CONDUCT IS ESSENTIAL LEGISLATIVE FUNCTION

(¶23) It is well settled that essential and primary legislative functions must be performed by the
legislature itself and they cannot be delegated to the executive.. In other words, Essential
legislative functions consist of determination of legislative policy and its formulation as a rule of
conduct a legislature has to discharge the primary duty entrusted to it. Once the essential
legislative powers are exercised by the legislature, all ancillary and incidental functions can be
delegated to the executive.

24
Peerless General Finance & Investment Co.LTD .v. Reserve Bank Of India, AIR 1992
25
1974 AIR 1660
26
In re: Delhi Laws Act.

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(¶24) It is submitted that the instant program code should be invalidated as it is formulated by
the executive. Who is not empowered to make any changes in the program code.

(¶25) Further it is submitted that As per section 2227 ,The Central Government may, by
notification in the Official Gazette, may bring changes in advertisement code , program code , as
soon as may be after it is made, before each House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or both
Houses agree that the rule should not be made, the rule shall thereafter have effect only in such
modified form or be of no effect, as the case may be.

In light of the aforementioned reasons, it is contended that the impugned Program code is not
constitutionally justifiable

ISSUE THREE

3 WHETHER RULES LAID IN NEW PROGRAM CODE ARE IMPOSING

UNREASONABLE RESTRICTION UPON THE FREEEDOM OF PRESS

FREEDOM OF PRESS IS IMPLICIT IN THE FREEDOM OF SPEECH AND

EXPRESSION
(¶26) It is humbly asserted that in India freedom of Press is implied from the freedom of speech
and expression guaranteed by Art19(1)(a). The freedom of the press is regarded as a “species of
which freedom of expression is a genus’’28.
(¶27)The quintessential purpose of the Freedom of press is regarded as creating a fourth
institution outside the government as an additional check on the three official branches-
executive, legislative and the judiciary29.It is the primary function of the press to provide
comprehensive and objective information on all aspects of the country‟s social, economic and
political life. The press serves as a powerful antidote to any abuse of power by government
officials and as a means for keeping the elected officials responsible to the people whom they
were elected to serve.
(¶28)The press seeks to advance public interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments. Articles and news are published in the

27
Cable Television Networks (Regulation) Act, 1995.
28
Sakal Papers v. Union of India,AIR 1962 SC 305
29
New York times v. Sullivan,376 US 2541

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press from time to time to expose the strengths, weaknesses of the government. This leads at
times to the suppression of the freedom of the press by the government.
It is, therefore, the primary duty of the judiciary to uphold the said freedom and invalidate all
laws or administrative actions which interfere with the freedom of the press contrary to the
constitutional mandate30. The main object of providing guaranteed freedom of press is for
creating a fourth institution beyond the control of State authorities, as an additional check on the
three official branches—the executive, the legislature and the judiciary31. “Everyone has the
right to freedom of opinion and expression, this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers.”

(¶29) The same view of freedom of holding opinions without interference has been taken by the
Supreme Court in Union of India v. Assn. for Democratic Reforms4 in which the Court has
observed as follows: (SCC p. 317, para 38)
“[O]ne-sided information, disinformation, misinformation and non-information, all equally
create an uninformed citizenry which makes democracy a farce. … Freedom of speech and
expression includes right to impart and receive information which includes freedom to hold
opinions
Keeping this view in mind Venkataramiah, J. of the Supreme Court of India in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India32has stated:
“In today's free world freedom of press is the heart of social and political intercourse. The press
has now assumed the role of the public educator making formal and non-formal education
possible in a large scale particularly in the developing world, where television and other kinds of
modern communication are not still available for all sections of society. The purpose of the press
is to advance the public interest by publishing facts and opinions without which a democratic
electorate [Government] cannot make responsible judgments. Newspapers being purveyors of
news and views having a bearing on public administration very often carry material which would
not be palatable to Governments and other authorities.

PRESS: FOURTH PILLAR OF DEMOCRACY

(¶30)“Growth and development of representative democracy is so much intertwined with growth

of press that the press has come to be recognized as an institutional limb of modern
democracy.”33
30
Indian Express Newspaper(Bombay) P Ltd v. Union of India, AIR 1986 SC 515 at 527
31
New York Times Co. v. Sullivan, 376 US 255 (1964)
32
(1985) 1 SCC 641 at p. 664, para 32.
33
Indian Express v Union of India(1985) 1 SCC 641

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Information is regarded as the oxygen of democracy. It invigorates where it percolates. If people
do not know what is happening in their society, if the actions of those who rule them are hidden,
then they cannot take a meaningful part in the affairs of the society. Freedom of expression, free
dissemination of ideas and access to information are vital to the functioning of a democratic
government. Information is crucial for a vibrant democracy and good governance as it reflects
and captures Government activities and processes. Access to information not only facilitates
active participation of the people in the democratic governance process, but also promotes
openness, transparency and accountability in administration.

(¶31) In the landmark case of Printers (mysore) Ltd. v. Assistant Commercial Tax Officer , the
supreme court has reiterated that though freedom of press is not expressly and categorically
guaranteed as a fundamental right, it is implicit in the freedom of speech and expression.
Freedom of press has always been cherished right in all democratic countries and the press has
rightly been described as the fourth estate. The democratic credentials of a state are judged by
the extent of freedom the press enjoys in that state.

Press Serves PUBLIC INTEREST

(¶31) Honorable Supreme Court has categorically emphasized that the freedom of the press is
not so much for the benefit of the press as for benefit of the general community because the
community has right to know, receive and impart information has been recognised with the
rights to freedom of speech and expression34. The press enjoys the privilege of sitting in the
Courts on behalf of the general public to keep them informed on matters of public importance.
The journalist therefore has the right to attend proceedings in Court and publish fair reports. This
right is available in respect of Judicial and Quasi-Judicial tribunals.35 The fundamental principle
which was involved in freedom of press is the “people's right to know”. It therefore received a
generous support from all those who believe in the free flow of the information and participation
of the people in the administration; it is the primary duty of all national courts to uphold this
freedom and invalidate all laws or administrative actions which interfere with this freedom, are
contrary to the constitutional mandate.

(¶32) The people of India have given themselves the constitution of India which secure to all its
citizen liberty of thought and expression. Preamble is reflected in art 19 (1) (a) given in the Part
III of the constitution which deals with the fundamental rights. Fundamental rights are those
rights which cannot be curtail by the government except due procedure of law. Extensive scope
of this right is as much as Article 21 of the constitution i.e. Right to life and liberty because a
right to life and liberty cannot be fully exercisable without exercise of right to speech and
expression. The right as per Article 21 without the right under Article 19 (1) (a) makes a human
being as a slave. Who does not have a right to speech or express himself. Hence right to speech
and expression is essential as equal to right to life and liberty to express him fully. In a landmark

34
S.P Gupta v. Union of India(1997)4SCC 306
35
SarojIyerv. Maharashtra Medical (Council) of Indian Medicine, A.I.R. 2002 Bom .95.

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36
judgment, Maneka Gandhi v. Union of India The Supreme Court held that the freedom of
speech and expression has no geographical limitation and it carries with it the right of a citizen to
gather information and to exchange thought with others not only in India but abroad also.

Telecasting vis a vis article 19(1)(a)

(¶33) It is submitted that freedom of telecasting is implied and implicit from freedom of speech
and expression under article 19(1)(a).37
(¶34) It is asserted that Telecasting is a system of communication either audio or visual or both.
Day to day happening in India and getting knowledge about it and awareness of the same which
is an crucial aspect of freedom of speech and expression protected under article 19(1)(a) . It is
humbly reiterated that the freedom to receive and communicate information and ideas without
interference is an quintessential and an integral aspect of the freedom of speech and expression
u/a article 19(1)(a) .
Right to Impart and receive information is a species of freedom of speech.

(¶35) Freedom of speech includes the right to express one‟s views and opinions at any issue
through any medium e.g., by words of mouth, writing, printing, picture, film,movie,etc. It thus
includes the freedom of communication and the right to propagate or publish opinion through
print media or through any other communication channel, e.g. radio and television.

(¶36) And further, it is humbly submitted that the citizen has a fundamental RIGHT to speech
to use the best means of imparting and receiving information and as such to have an access to
telecasting for the purpose for which there is a need of media so that every citizen can not
only communicate but also the freedom to receive the same.

Impostion Of Censorship Is Violation Of 19(1)(a).

(¶37) It is humbly contended that the impostion of pre-censorship on the telecast of the media as
prescribed in the new program code is violating the fundamental right of freedom of speech and
expression as the right to know, receive and impart information which has been recognized with
freedom of speech and expression is been infringed this can be justified by the landmark case
where the judiciary stated that pre-censorship on a newspaper,38 or prohibiting it from
publishing its own views or those of its correspondents on a burning topic of the day39,
constitute an encroachment on the freedom of speech and expression. As freedom of speech and
expression. includes freedom to propagate ideas which is ensured by freedom of circulation of a
publication as a publication is of little value without circulation. In Bennet Coleman Company v.
UOI , the Court held that Freedom of press is both quantitative and qualitative. Freedom lies
both in circulation and in content.

36
34 AIR1978 SC 597
37
Ministry of Information and Broadcasting v. Cricket Association,Bengal ,AIR 1995 SC 1236
38
Brij Bhushan v. Delhi, AIR 1950 SC 129
39
Virendra v. State of Punjab, AIR1957 SC 896

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(¶38) In SAKAL PAPER V. UNION OF INDIA , the Honorable Supreme Court ruled The
Newspaper(Price and Page )Act, 1956 as unconstitutional and invalidated it as it regulated the
number of pages according to the price charged, further prescribed the number of supplements to
be published, and regulate the size and area of advertisements in relation to other matter
contained in a newspaper. Thus, the number of pages published by a newspaper depended upon
price charged to the readers. The supreme court contended that article 19(1)(a) guarantees not
only what a person circulates but also the volume off circulation . “The freedom of a newspaper
to publish any number of pages or to circulate it to any number of persons is each an integral part
of the freedom of speech and expression. A restriction placed upon either of them would be a
direct infringement of the right to freedom of speech and expression.”
(¶39) It is humbly submitted by the counsel in the instant case the new program code restricts the
telecast of the content by the media hence infringing an integral part of speech and expression
Hence violative of 19(1)(a).The instant case is on the same footing as there is pre-censorship due
to the new program code upon the telecast of content by media

BALANCE BETWEEN PRESS AND INDEPENDENT JUDICIARY IS EXPEDIENT

(¶40) It is humbly submitted that necessity to maintain a free press and an independent judiciary
side by side without affecting either, has been emphasized by the Sanyal Committee40 in the
following words: A free press and an independent judiciary are absolutely necessary in a free
society. Freedom of the press, however, is not an end in itself but a means to an end and the
scope and nature of the constitutional protection of freedom of speech should be viewed in this
light. The independence of the judiciary is no less a means to an end in a free society and the
proper functioning of!an independent judiciary puts the freedom of the press in its proper
perspective. A judiciary cannot function properly, if what the press does is calculated to disturb
the judicial judgment in its duty and capacity to act solely on the basis of what is put before.41,
the Amendment Act of 2006 made a significant change in the Act itself by providing in Section
13 of the Act that justification by truth can be a valid defense if the Court is satisfied that it is in
public interest and the request for invoking the said defense is bona
fide.42

(¶41) To quote Justice Mukherjee said “that there are two primary considerations which should
weigh with court in such cases, viz.,Firstly, whether the reflection on the conduct or character of
the judge is within the limits of fair and reasonable criticism, and Secondly, whether it is a mere

40
Committee on Contempt of Courts (1963). This committee was constituted in the year 1961 under the chairmanship of Shri.
H.N. Sanyal, the Additional Solicitor General of India. The other Parliament, Sri. R. Rajagopal, Special Secretary and Member,
Law Commission, Legislature Department, Ministry of Law; Sri. H.O. Dega, Joint Secretary and Legal Advisor, Department of
Legal Affairs, Ministry of Law.

41
Report of the Committee on Contempt of Court, 34 (1963).
42
Section 13(b) Contempt of Courts Act, 1971

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libel or defamation of the judge or amounts to a contempt of court. If, it is a mere defamatory
attack on the judge and is not calculated to interfere with the due course of justice or the proper
administration of the law by such court, it is not proper to proceed by way of contempt.”43

SUB JUDICE REPORTING

(¶42) When a case is being conducted in the Court, it is presumed that Court will do fair Justice
in the matter. Nothing should interfere in that especially the media. Media should not conduct a
parallel trial of sub judice matters. A judge shall decide the matter on the merits of the case and
objectively. This is not possible when there is so much discussion in the matter through the
media, as it creates a clouded atmosphere disturbing the serenity. The Contempt Of Courts Act
1971 recognizes the sub judice rule , rule of law under which publication and distribution of a
publication which interferes with the course of justice in pending or active legal proceeding may
be treated as the contempt of court, regardless of intent.

(¶43) Saibal Kumar v. B.K. Sen44the Supreme Court held that it is improper for a newspaper to
conduct parallel investigation into a crime and publish its results. Trial by newspapers must be
prevented when trial is in progress in a tribunal of the country. The reason being, that this
interferes with the cause of justice.

H. Security of state & public order

(¶36.) An aggravated form of disturbance of peace which threatens, the foundations of, or
threatens to overthrow the state will fall within the scope of phrase „security of state‟. Therefore,
making a speech tending to overthrow the state can be made punishable.45 It is humbly
contended that telecast by the media have tendency to threaten the security of the state.

(¶37.) It is submitted that media news has greater reach, and more immediate impact it is
necessary that channels exercise restraint to ensure that any report or visuals broadcast do not
induce, glorify, incite, or positively depict violence and its perpetration, Specific care must be
taken not to broadcast visuals that can be prejudicial or inflammatory, same is not being
exercised by media while telecasting the military operations.

(¶38.) It is contended news channels will ensure that such recommendation will not cross
boundaries of good taste and sensibility. This include taking adequate precaution while showing
any visual instance of pain, fear or suffering, and visuals or details of methods of suicide and self
harm of any kind and will not cross boundaries of good taste and decency.46So is not the case in
the instant case the media is clearly showing no sense of care while telecasting.

43
Brahma Prakash Sharma v. U.P 1953 SCR 1169
44
Saibal Kumar v. B.K. SenA.I.R. 1961 S .C 633.
45
Madhu limaye v S.D.M ., AIR 1971 SC 2486
46
Code of Ethics and Broadcasting, News Broadcasting Agency

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DEFAMATION

(¶40.) It submitted that defamation is defined u/s 499 of IPC, which talks about lowering the
reputation of a person in the estimation of right-thinking members of the society by words either
spoken or written,
(¶41.) It is humbly contended that the act of some media channel which caused defamation to
the citizens , group of Arab Community , Rape victim, Mr.Rakesh is criticized by media
federation but the restriction based on the act of few news channels on the whole media
federation were totally unjust and un reasonable as it is violative of article 14 and unreasonable
because there is no nexus behind imposing such a herculean restriction on whole federation by
the acts of few.

In light of the aforementioned reasons, it is contended that the impugned Program code is t
impose unreasonable restrictions on freedom of speech.

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PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon‟ble Court to adjudge and declare on behalf of
the Union of INDIA that:

1. The Petition filed by AIMF is maintainable before the Supreme Court of INDIA
2. The Program code added is ultra vires the Constitution.
3. Rules are unjust, arbitrary and unreasonable & infringe the freedom of press.
4. Rules suffer from the vires of excessive delegation and unguided discretion.

The court may also be pleased to pass any other order, which this Hon‟ble Court may deem fit
in light of justice, equity and good conscience. All of which is respectfully submitted on behalf
of The Petitioner

Sd/-

(Counsel for the “Petitioner”)

Memorial on the behalf of the Petitioner