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Team Code: T3

IN THE
HON'BLE SUPREME COURT OF SARVIA
(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF SARVIA)

IN THE MATTER OF:

SHRI.MADHUKAR VATS
(Petitioner)

V.

UNION OF SARVIA&ORS.
(Respondent)

Memorial submitted to
Memorial Filed on behalf of Respondent
Counsel appearing on Behalf of Respondent

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Memorial on Behalf of Respondent

TABLE OF CONTENTS

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


LIST OF ABBREVIATIONS ................................................................................. 4
INDEX OF AUTHORITIES .................................................................................. 5
STATEMENT OF JURISDICTION ......................................................................... 8
STATEMENT OF FACTS ..................................................................................... 9
ISSUES PRESENTED ....................................................................................... 11
SUMMARY OF ARGUMENTS ............................................................................ 12
ARGUMENTS ADVANCED ............................................................................... 14
1.

THAT THE WRIT PETITIONS FILED BY MR. MADHUKAR VATS ARE NOT MAINTAINABLE ...... 14
1.1.

RESPONDENT IS NOT A STATE WITHIN THE MEANING OF ARTICLE 12................................... 14

1.2.

THE WRIT JURISDICTION CANNOT BE EXERCISED TO DECIDE ISSUES BETWEEN PRIVATE

PARTIES ....................................................................................................................................... 15

1.3.

ALTERNATIVE REMEDIES HAVE NOT BEEN EXHAUSTED : ..................................................... 15

1.4.

THE PRESS AND REGISTRATION OF BOOKS ACT, 1867 DOES NOT PROVIDE FOR

CANCELLATION OF A DECLARATION OF A NEWSPAPER ON THE GROUND OF COMMENTS .................. 17

1.5.

2.

THE RESPONDENTS COMMENT IS FAIR AND PROPORTIONATE.............................................. 17

THAT THE LICENSE OF JANAVANI AND JANAVANI NEWS CANNOT BE CANCELLED. ............. 18
2.1.

FREEDOM OF PRESS AND TELEVISION IS NOT A LICENSE AND IT CANNOT BE CURTAILED ..... 18

2.3.

THE PRESS LAW DOES NOT PROVIDE FOR CANCELLATION OF LICENSE. ................................ 19

2.4.

PROVISIONS UNDER CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995 DO NOT

EMPOWER THE SUPREME COURT TO CANCEL THE LICENSE. ............................................................ 20

2.5.

BY CANCELLATION OF LICENSE, THE RESPONDENTS RIGHT UNDER ART. 19(1)(A) AND

19(1)(G) WOULD BE DENIED ........................................................................................................... 22


2.6.

CANCELLATION OF LICENSE VIOLATES PRINCIPLE OF PROPORTIONALITY ............................ 23

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2.7.

3.

Memorial on Behalf of Respondent


THERE IS NO DEFAMATION .................................................................................................. 24

THAT THE HONBLE SUPREME COURT OUGHT NOT TO FORMULATE ANY GUIDELINES FOR

REPORTING OF CASES PENDING BEFORE THE COURTS OR REGARDING MATTERS WHICH ARE SUBJUDICE. ....................................................................................................................................... 25

4.

3.2.

GUIDELINES TEND TO VIOLATE FREEDOM OF MEDIA........................................................... 26

3.3.

PRE-EXISTING MECHANISMS ARE SUFFICIENT TO CHECK ABUSE OF FREEDOM OF MEDIA ...... 28

THAT THE REVERSE STING OPERATION CARRIED OUT BY ABN NEWS VIOLATES THE RIGHT OF

PRIVACY AND AMOUNTS TO INTERFERENCE IN THE ADMINISTRATION OF JUSTICE. ..................... 31

4.1.

STING OPERATION HAS VIOLATED RIGHT TO PRIVACY ......................................................... 31

4.2.

LICENSE OF ANB NEWS IS LIABLE TO BE CANCELLED. ........................................................ 35

PRAYER ........................................................................................................ 37

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Memorial on Behalf of Respondent

LIST OF ABBREVIATIONS

A.I.R.

All India Reporter

Art.

Article

ASP

All Sarvian Party

Co.

Company

Ed.

Edition

Honble

Honourable

Ltd.

Limited

Mgt.

Management

Ors.

Others

SC

Supreme Court

SCC

Supreme Court Cases

Sr.

Senior

&

And

U.O.I

Union of India

v./vs.

Versus

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Memorial on Behalf of Respondent

INDEX OF AUTHORITIES
CASES

Ambard v. Attorney General for Trinidad and Tobago, AIR 1936 PC 141 ..................... 18

Aniruddha Bahal v. State, 172 (2010) DLT 268 .............................................................. 36

Ashif Hamid v. State of J & K, AIR (1989) SC 1899 ....................................................... 21

Bennett Coleman & Co. v. U.O.I, (1972) 2 SCC 788................................................. 26, 28

Brij Bhushan v. Delhi, AIR 1950 SC 129................................................................... 25, 27

City of Boerne v Flores, (1997) 521 US 570 .................................................................... 24

Coimbatore Distt. Central Coop. Bank v. Employees Assn, (2007) 4 SCC 696 ............. 23

Court On Its Own Motion v. State, 146 (2008) DLT 429........................................... 33, 34

E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555.................................................. 22

Gajanan Visheshwar Birjur v. UOI, (1994) 5 SCC 550............................................. 27, 28

Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 ............................................... 32

Grosjean v. American Press Co., (1935) 297 US 233...................................................... 26

Indian Express Newspapers(Bombay) Pvt. Ltd. v. UOI, AIR 1985 SC 515... 23, 24, 26, 28

Kharak Singh v. State of UP, AIR 1963 SC 1295 ............................................................ 32

M. Hasan v. Govt. of Andhra Pradesh, AIR 1998 AP 35(40,41)..................................... 19

Maneka Gandhi v. Union of India, AIR 1978 SC 597 ................................... 14, 22, 23, 26

Mc Kart v. United States, 395 US 185 (1969).................................................................. 16

Metropolis Theatre Company v. City of Chicago, (1912) 57 L Ed 730 ........................... 22

MetropolitanPolice Commissioner, ex parte Blackburn, [1968] 2 QB 150 ..................... 18

Miami herald v. Tornillo, (1974) 418 US 241.................................................................. 32

Mohan Ram v. Usha Rani Rajgaria, (1992) 4 SCC 61 .................................................... 15

Narain Das v. Govt. of MP, AIR 1974 SC 1252.............................................................. 18

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 .............................. 29

Observer and Guardian v. UK, 1991 14 EHRR 153,191................................................. 28

P. D. Shamdasani v. Central Bank of India, AIR 1952 SC 59......................................... 15

Printers (Mysore) Ltd v. Asst. Commercial Tax Officer, 1994 SCR (1) 682 ................... 26

PUCL v. U.O.I, AIR 1991 SC 207 ............................................................................. 32, 35

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R. K Garg v. Union of India, AIR 1981 SC 1829............................................................. 23

R. v. Oakes, (1986) 26 DLR (4th) 200.............................................................................. 24

R.DBohet, Ex-Dy. Supdt. Gr - I, Central Jail v. Lt. Governor of Delhi, Govt. of NCT of
Delhi, CAT (Principal Bench), Decided on: 24.11.2006 (Unreported) ............................ 35

Rajgopal v. State of Tamil Nadu, 1994 6 SCC 632 .............................................. 31, 32, 33

Raman Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC
1628................................................................................................................................... 14

RamkrishnaDalmia v. Justice Tendolkar, AIR 1958 SC 538........................................... 23

Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspaper, AIR 1989 SC


190..................................................................................................................................... 18

Romesh Thapar v. State of Madras, (1950) SCR 594,602 ............................................... 26

S. Rangarajan v. P. Jagjivan, (1989) 2 SCC 574 ............................................................. 18

Sadhana Lodh v. National Insurance Co. Ltd, (2003) 3 SCC 524 ................................... 17

Sahara v. SEBI, Civil Appeal No. 9813 OF 2011 ............................................................ 30

Sakal Papers v. U.O.I, AIR 1992 SC 106 ........................................................................ 26

Schering chemicals v. Falkman, (1981) 2 ALL ER 321................................................... 34

Secy. Miner Irrigation and Rural Engg. Services, UP v. Sangoo Ram Arya, (2002) 5 SCC
521..................................................................................................................................... 16

Shri Sitaram Sugar Co. v. Union of India, AIR (1990) SC 1277 ..................................... 22

State of Orissa v Ram Chandra Dev, AIR 1964 SC 685 .................................................. 18

State of Orissa v. Gopinath Dash, 2005 (1 ) Suppl. SCR 352.......................................... 21

State of UP v. Raj Narain, AIR 1975 SC 865 .................................................................. 27

Superintendent. v. Ram Manohar, AIR 1960 SC 633 ...................................................... 27

Tata Press Ltd. v. MTNL, (1995) 5 SCC 139 ................................................................... 18

VidyaVerma v. Shivnarain, AIR 1956 SC 108 ................................................................. 15

Virendra v. State of Punjab, AIR 1957 SC 896................................................................ 27

BOOKS, TREATISES & DIGESTS

A.C Breckenridge, The right to Privacy (1971) ............................................................... 32

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Memorial on Behalf of Respondent

Alan Westin, Privacy and Freedom (1967)...................................................................... 31

Durga Das Basu, Law of The Press (5th Ed. 2010, Lexis Nexis Butterworths Wadhwa)
............................................................................................................................... 27, 28, 34

M.P Jain, Indian Constitution Law (6th Ed. Reprint 2012, Lexis Nexis Butterworth
Wadhwa, Nagpur) ................................................................................................. 26, 27, 30

STATUTES, LEGISLATIONS & INTERNATIONAL CONVENTIONS

Cable Television Networks (Regulation) Act, 1995............................................. 16, 20, 35

Cable Television Networks Rules, 1994..................................................................... 20, 35

Code of Civil Procedure, 1908 (India).............................................................................. 30

European Convention on Human Rights .......................................................................... 31

Press and Registration of Books Act, 1867 ................................................................ 15, 19

The Press Council Act, 1978 ...................................................................................... 16, 19

Universal Declaration of Human Rights..................................................................... 26, 31

ESSAYS, ARTICLES & REPORTS

John W. Thornton, Expanding Video Tape Techniques in Pretrial and Trial Advocacy, 9
FORUM 105 1973 - 1974 ................................................................................................. 35

MISCELLANEOUS

Constitution of India ....................................................................................... 14, 17, 29, 32

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Memorial on Behalf of Respondent

STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached the Honble Supreme court of Sarvia
under Art. 32 of the Constitution of Sarvia. The respondent submits to the same.

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Memorial on Behalf of Respondent

STATEMENT OF FACTS
Salerno is a state in the Union of Sarvia. The All Sarvian Party is the ruling party at the center
while the Presidential Party is the major opposition. Two major media houses operated in
Salerno namely ANB News Ltd and JanavaniNews. ANB Group was run by the ANB Industries
Ltd. ANB Industries Ltd had majority stake in the ANB News Ltd. but had only 3 directors in the
board of total 10 directors. Sh.Madhukar Vats, leader of ASP was the promoter and largest
shareholder of ANB Industries Ltd.
Sh. D. Kamal founded Janavani and also authored the 1stelection manifesto of Presidential Party
in 1967. Though Mr. Kamal never held a position in the Party but he was considered the guiding
light. Janavani emerged as single largest Hindi newspaper in last 3 decades. In the year 2000, a
Hindi news channel namedJanavani News was established by Mr. Ram Prasad son of Mr. D.
Kamal who holds the position of chief editor till today.
Janavanihas been at the forefront of exposing corrupt practices in the Union of Sarvia by ASP. In
Oct.2011, Janavanipublished details of coal block allocation and lease renewal by the
Government in Dec.2010. The documents published by Janavani prima facie revealed that coal
block allocation was allowed not as per the auction method andthat the minimum qualification
for coal block allocation was relaxed for certain companies which were otherwise not eligible
such as ANB Collieries Ltd, Natalie Collieries Ltd, Coal-ExploSarvia Ltd.
ANB Collieries Ltd. was a publically held co. listed with NSE. ANB Industries Ltd. held a
majority stake in ANB Collieries Ltd and all the companies of ANB Group used to spend 70% of
its total ad.budget to ANB news Ltd. After publication of allegations regarding adoption of
corrupt practices by ANB Collieries Ltd. in coal block allocation, a FIR was lodged against MD
of ANB Collieries Ltd. as well as Mr. Vats. Union of Sarvia appointed an empowered ministerial
committee to investigate into the scam. While the investigations were pending and the ministerial
committee was yet to submit its report, a series of articles as well as news reports were
broadcasted on Janavani&Janavani News respectively.
On 13-1-12, a charge sheet was filed by police against Mr. Vats as well as all the other
concerned sr. mgt. officials of various companies. On 17-1-12, Janavaninews broadcasted
interview of Coal Sec. (Retd) as well as CAG (Retd.) wherein they indicated that the coal block

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allocation scam could have caused loss of about 18000 Crores to the State Exchequer. Next
Morning, Janavani carried a front page article ANB Group involved in largest scam in history
of Sarvia. Within next 3 weeks shares of ANB Industries and ANB Collieries Ltd dropped by
65% & 87%. Mr.Vats filed a complaint against Mr.Kamal for defamation. He also filed WP No.
1328 of 2012 before the SC praying for license cancellation of Janavani&Janavani News.
All the debenture holders of ANB Industries Ltd, headed by All Sarvia ANB Industries
Debenture Holders Association (Regd.) filed WP No. 2642 of 2012(Civil) before the SC in
which Petitioner prayed for direction to ANB Industries Ltd, Mr. Madhukar Vats and Securities
Exchange Board of Sarvia (SEBS) to ensure timely repayment to all the debenture holders. On
11-3-12, SC issued notice to SEBS, Union of Sarvia and the other parties to file an affidavit
regarding proposal to secure the interest of all the debenture holders. ANB Industries Ltd was
directed to submit a without prejudice proposal to SEBS within two weeks.
As the WP No. 2642 of 2012 was sub-judice, Advocate for ANB sent the proposal to ensure
repayment of all the debenture holders to the Advocate for SEBS& Union of Sarvia vide an EMail and also under sealed cover letter. Next morning, Janavanipublished news Yet another
attempt by ANB to defraud Sarvia. It contained all the details of security offered by ANB.The
Sr. counsel for ANB mentioned the matter before SC on 18-3-12 objecting to the publication of
without prejudice-confidential proposal on sub-judice matter. Mr. Kamal published that it was
necessary in public interest to inform the debenture holders about the nature of proposal made by
ANB and that publication of news article didnt interfere with administration of justice.
Mr.Vats filed IA No. 3 of 2012 in WP No. 2642 of 2012 praying for guideline formulation for
print & electronic media while reporting sub judice matters.
ABN News reporters carried a sting recording the conversation of Dy. Editor of Janavani News
stating that it wont be carry any story about coal scam from any co. ensuring 70% of its total
ad.revenue to Janavani&Janavani News. Mr.Vats called for a press conference and released the
sting video. An FIR was lodged &Mr.Kamalwas arrested. Then,Mr. Kamal filed WP No.3141 of
2012 for license cancellation of ANB News for broadcast of the alleged clipping pending
investigation in the matter of alleged scam in coal block allegation and that the Sting violated rt.
to privacy. All the aforesaid matters were clubbed(with IA 3) to be heard by the Honble Chief
Justice of SC of Sarviaas it involved significant questions of law and public importance.

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Memorial on Behalf of Respondent

ISSUES PRESENTED

1. WHETHER

THE

WRIT PETITIONS

FILED BY

MR.MADHUKAR VATS

ARE MAINTAINABLE

OR NOT?

2. WHETHER

THE

LICENSE

OF

JANAVANI

AND

JANAVANI

NEWS IS LIABLE TO BE

CANCELLED UNDER THE APPROPRIATE LAW?

3. WHETHER

THE

HONBLE SUPREME COURT

OUGHT TO FORMULATE THE NECESSARY

GUIDELINES FOR REPORTING OF CASES PENDING BEFORE COURTS OR REGARDING


MATTERS WHICH ARE SUB-JUDICE?

4. WHETHER THE REVERSE STING OPERATION CARRIED OUT BY ABN NEWS VIOLATES THE
RIGHT OF PRIVACY AND AMOUNTS TO INTERFERENCE IN THE ADMINISTRATION OF

JUSTICE?

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SUMMARY OF ARGUMENTS

1. WHETHER

THE

WRIT PETITIONS

FILED BY

MR.MADHUKAR VATS

ARE MAINTAINABLE

OR NOT?

It is humbly submitted that the writ petition is not maintainable as Janavani does not
come under the definition of State as per Art. 12. Since Janavani is a private party, it is
not amenable to the writ jurisdiction of the Honble Supreme Court. Further, the
alternative remedies are sufficient and have not been exhausted. The respondents
comment is fair and proportionate and does not impede the administration of justice.
Thus, no right of the petitioner is violated and the writ petition is not maintainable.

2. WHETHER

THE

LICENSE

OF

JANAVANI

AND

JANAVANI

NEWS IS LIABLE TO BE

CANCELLED UNDER THE APPROPRIATE LAW?

It is humbly submitted that a license is required to do an act which would otherwise be


illegal. The respondent is exercising his freedom of speech and expression as guaranteed
by the Constitution. Since no license is required to exercise a right, no question of
cancellation arises. Further, the Press and Registration of Books Act, empowers a
magistrate to cancel a registration while the Cable TV Actdoes not empower the Supreme
Court to cancel a declaration. The court cannot take up the administrative function. By
such cancellation, the respondents right to trade and occupation would be violated. Also,
cancellation doesnt stand the proportionality test.

3. WHETHER

THE

HONBLE SUPREME COURT

OUGHT TO FORMULATE THE NECESSARY

GUIDELINES FOR REPORTING OF CASES PENDING BEFORE COURTS OR REGARDING


MATTERS WHICH ARE SUB-JUDICE?

It is humbly submitted that this Hon'ble SC ought not to formulate any guidelines for
reporting of cases pending before the courts or regarding matters which are sub-judice.
The same shall be detrimental in the interest of justice on three aspects, firstly it tends to
encroach upon the right of freedom of speech and expression. Secondly, itis not required

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as pre-existing mechanisms are sufficient to check abuse of power by media. Lastly, selfregulation mechanisms within the institution of media can perform the role of regulation.

4. WHETHER THE REVERSE STING OPERATION CARRIED OUT BY ABN NEWS VIOLATES THE
RIGHT OF PRIVACY AND AMOUNTS TO INTERFERENCE IN THE ADMINISTRATION OF

JUSTICE?
It is humbly put forth that the sting operation conducted by journalist of ABN News
Group amounts to infringement of the right to privacy and further amounts to interference
in the administration of justice. The sting operation is not done as per the procedure
established by law. The same has also led to a hostile atmosphere for the accused whilst
the investigation is pending thereby perverting the administration of justice.

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Memorial on Behalf of Respondent

ARGUMENTS ADVANCED

1. THAT THE WRIT PETITIONS FILED BY MR. MADHUKAR VATS ARE NOT MAINTAINABLE
1.1. RESPONDENT IS NOT A STATE WITHIN THE MEANING OF ARTICLE 12
1.1.1.

It is humbly submitted that the fundamental rights are given to individuals

for protection against the actions of State. In Maneka Gandhi v. Union of


India1the Supreme Court observed: Fundamental rightsweave 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.
1.1.2. Writ jurisdiction is exercised against the State defined in Article 12 of the
Constitution as fundamental rights are to be enforced against the State. The
definition of State does not include private parties. The Supreme Court of India in
Raman DayaramShettyv. The International Airport Authority of India2laid down the
following test to determine whether a body could be called a State
(1) Financial resources of the State is chief funding source i.e. entire share capital of
the corporation is held by the govt.
(2) Existence of deep and pervasive State control
(3) Functional character being governmental in essence i.e. if the functions of the
corporation are of public importance and closely related to governmental
functions.
(4) If a department of the govt. has been transferred to a corporation
(5) Whether the corporation, enjoys status which is State conferred or State protected
1.1.3.

The Janvani newspaper and Janvani news channel do not fall in any of

these categories as the govt. does not provide any funds to them nor exercises any
control over them. Nature of their functions is not of governmental character nor
has any department of the govt. been transferred to them and they do not have
any monopoly. They are, therefore, not amenable to writ jurisdiction of the
Honble Court.
1
2

AIR 1978 SC 597 at p.617


AIR 1979 SC 1628

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1.2. THE WRIT JURISDICTION CANNOT BE EXERCISED TO DECIDE ISSUES BETWEEN


PRIVATE PARTIES

1.2.1.

It is submitted that the petitioner is seeking a relief against private parties.

Janavani and Janavani News both are private entities and fundamental rights
cannot be asserted or enforced against such entities through writ jurisdiction.
Relations between private parties are governed by ordinary law.
1.2.2.

In P. D. Shamdasaniv. Central Bank of India3 the Supreme Court held:

Neither Article 19(1) or Article 31(1) was intended to prevent wrongful


individuals acts or to provide protection against merely private conduct ..the
language and structure of Article 19 and its setting in Part III of the constitution
clearly show that the article was intended to protect those freedoms against state
action other than in the legitimate exercise of its power to regulate private rights
of property by individuals is not within the purview of the Articles
1.2.3.

In Mohan Ram v. Usha Rani Rajgaria4it has been held that the

extraordinary jurisdiction of the High Court under Article 226 cannot be


exercised for deciding disputes between private parties .a regular suit is the
appropriate remedy for settlement of disputes between private persons.
1.3. ALTERNATIVE REMEDIES HAVE NOT BEEN EXHAUSTED :
1.3.1.
i)

The petitioner has effective alternative remedies under the relevant Acts:
Press and Registration of Books Act, 1867 authorizes a Magistrate to
conduct trial into offences for violation of provisions of that act also
provides for cancellation of declaration (which is equivalent to license).
Section 15(1) provides punishment for printing or publishing newspaper
without conforming to rules.

ii)

Sub section (2) of the same Section provides that where an offence is
committed in relation to a newspaper under sub-section (1), the Magistrate
may, in addition to the punishment imposed under the said sub-section,
also cancel the declaration in respect of the newspaper.

3
4

AIR 1952 SC 59 ;VidyaVermav. Shivnarain, AIR 1956 SC 108


(1992) 4 SCC 61

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iii)

Section 14 of The Press Council Act, 1978 provides that the Council can
censure a newspaper, news agency or journalist for violation of standards
of journalistic ethics or professional misconduct.

iv)

Sections 19 and 20 of Cable Television Networks (Regulation) Act, 1995


empower the Central Govt. to prohibit transmission or operation of a cable
network. Also, Section 21 of the aforesaid act provides that the provisions
of that act are in addition to several other acts. This means that the
remedies provided under those acts are also available in addition to the
remedies under the present act.

1.3.2.

It is submitted that the petitioner has not approached any of these

authorities and has directly approached this Honble court.

The authorities

constituted under those acts are the authorities to be approached by any aggrieved
in the first instance and only if they deny the relief or violate any procedure, can
their action be challenged in writ jurisdiction. Without approaching the
authorities empowered under the law, the petitioner cannot approach the highest
court even under writ jurisdiction as rights have not been asserted at all and issue
of denial or enforcement through writ would come only thereafter.
1.3.3.

The rule that an aggrieved person should first approach the administrative

authorities is well established in most jurisdictions. The American Supreme


Court in Mc Kart v. United States5 held that the doctrine of exhaustion of
administrative remedies is well established in the jurisprudence of administrative
law. The doctrine provides that no one is entitled to judicial relief for a supposed
or threatened injury until prescribed administrative remedy has been exhausted.
1.3.4.

Same principle has been applied in India. The Supreme Court in the case

Secy. Miner Irrigation and Rural Engg. Services, UP v.Sangoo Ram Arya,6 held:
Where statute provided Service Tribunals for adjudicating disputes of govt.
servants, the said Tribunal cannot be bypassed by filing writ petition on the
ground that Tribunal lacks power to pass interim order. In SadhanaLodhv.

5
6

395 US 185 (1969)


(2002) 5 SCC 521

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National Insurance Co. Ltd.7, the Apex Court further held that a writ petition by
an insurer challenging the award of Tribunal is not maintainable in the face of the
fact that an alternative remedy by filing appeal before the High Court under
Motor Vehicles Act was available to the insurer.

1.4. THE PRESS AND REGISTRATION OF BOOKS ACT, 1867 DOES NOT PROVIDE FOR
CANCELLATION OF A DECLARATION OF A NEWSPAPER ON THE GROUND OF
COMMENTS

1.4.1.

Section 8B of the Act provides for cancellation of declaration by a

magistrate only the grounds of publication in contravention of the act and rules
made thereunder or has a title similar to any other newspaper or the printer of
publisher has ceased to be printer of publisher or declaration was made on false
representation or was on concealment of material fact. Further, Section 15
empowers a magistrate to punish a person for publishing in violation of
provisions of the act or rules made thereunder and in addition, to cancel the
declaration.
1.4.2.

It is put forth that there is no provision in the Act or in the Rules made

under the said Act to cancel a declaration on the ground espoused by the
petitioner. The reason is also clear that the press operates under the fundamental
right granted by Article 19(1) of the Constitution and the law does not envisage
permanent closure of a newspaper. A relief not envisaged in the law governing
the subject cannot be sought by changing the remedy and the forum. The only
authority empowered to cancel a declaration is a magistrate. Such relief cannot be
sought from the Supreme Court in a writ petition as the authority and nature of
jurisdictions are different.
1.5. THE RESPONDENTS COMMENT IS FAIR AND PROPORTIONATE
1.5.1.

The press is also referred to as the fourth estate of a democracy. The right

of the press extends to making a fair comment on the matters of public interest.
Every democracys biggest challenge is to counter corruption and the media
plays an important role in exposing such malpractices. It has been observed time
7

(2003) 3 SCC 524

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Memorial on Behalf of Respondent


and again that justice is not a cloistered virtue; she must be allowed to suffer
scrutiny even through outspoken comments of ordinary men.8 In the English case
of MetropolitanPolice Commissioner, ex parte Blackburn9 Lord Denning MR
stated: It is the right of every man, in Parliament or out of it, in the Press or over
broadcast, to make fair comment, even outspoken comment, on matters of public
interest.

1.5.2.

Further widening and deepening of right to Freedom of expression was

recognized by the Supreme Court of India and it held that ...Institutions cannot
be hypersensitive about comment even pertaining to pending proceedings. 10Any
publication/reporting that merely affects the reputation of the parties in a sub
judice matter, is not contempt.11
1.5.3.

It was held by the Supreme Court in State of Orissa v Ram Chandra Dev12

that before a writ or an appropriate order can be issued in favour of a party, it


must be established that the party has a right and the said right is illegally
invaded or threatened. Thus the existence of a right is the foundation of a writ
petition. Since the respondents comments were fair and proportionate to the
indignation & stir caused by the case, they cannot be termed as prejudicing the
fair trial and therefore no right of the petitioner is violated.
2. THAT THE LICENSE OF JANAVANI AND JANAVANI NEWS CANNOT BE CANCELLED.

2.1. FREEDOM OF PRESS AND TELEVISION

IS NOT A LICENSE AND IT CANNOT BE CURTAILED

2.2.1. As per Blacks Law Dictionary, license means the permission by competent
authority to do an act which without permission would be illegal. The Press and
registration of Books Act and the Cable TV Act only mandate for a registration or
declaration. Since the press also exercises its commercial speech as a part of
freedom of speech and expression granted under Art. 19(1)(a)13, there is no
8

Lord Atkin in Ambard v. Attorney General for Trinidad and Tobago, AIR 1936 PC 141 at p.145
[1968] 2 QB 150, p. 155
10
Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspaper, AIR 1989 SC 190; S. Rangarajan v. P.
Jagjivan, (1989) 2 SCC 574
11
Narain Das v. Govt. of MP, AIR 1974 SC 1252
12
AIR 1964 SC 685
13
Tata Press Ltd. v. MTNL, (1995) 5 SCC 139
9

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Memorial on Behalf of Respondent


requirement of a license. Freedom of speech and expression cannot be equated with
possession of arms which would be unlawful without a license; rather it is exercise
of a fundamental freedom which is zealously guarded. Alleged transgression here
and there cannot lead to extinguishment of a fundamental right. It is not the
publishers freedom to print it is rather the citizens right to know. 14 Therefore
this right cannot be curtailed.

2.3. THE PRESS LAW DOES NOT PROVIDE FOR CANCELLATION OF LICENSE.
2.3.1. It is humbly submitted that newspapers are governed by Press and Registration of
Books Act, 1867 and the Press Council Act , 1978 and the rules made there under.
Sec. 315 provides that every book or paper should have the printers name &place of
printing, publishers name & the place of publishing and the book or newspapers
name. Sec. 5 provides the rules as to publication of newspapers.
2.3.2. Other provisions of this act provide for declaration to be made by owner,
publisher or printer of newspaper and authentication thereof before a magistrate. A
magistrate can order cancellation of a declaration if the same is in violation of the
act or title of two newspapers is the same or the printer or publisher has ceased to be
printer or publisher. Sec.15(2) provides that where an offence is committed in
relation to a newspaper relating to non-conformity of listed rules, the magistrate
may , in addition to the punishment imposed under the 15(1), also cancel the
declaration in respect of the newspaper. The magistrate is empowered to cancel the
declaration16 only under instances of false declaration, non-conformity of rules etc.
2.3.3. The Press Councils Act, 1978 among other objects and functions of the council
providedin Sec. 13 also provides to build up a code of conduct for newspapers, news
agencies and journalists in accordance with high professional standards.17 The
council can censure a newspaper , news agency or journalist for violation of
standards of journalistic ethics or professional misconduct.18

14

M. Hasan v. Govt. of Andhra Pradesh, AIR 1998 AP 35(40,41)


Press and Registration of Books Act, 1867
16
Id., 8B
17
The Press Councils Act, 1978, 13(2)(b)
18
Id., 14
15

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2.3.4. It is humbly submitted that the above provisions show that for non-conformity
with the rules; a magistrate can cancel the declaration which is equivalent to
cancellation of a license. This power can be exercised only by a magistrate who has
conducted the trial into this offence and has decided to punish the accused. Also,
cancellation of declaration can only be ordered for violation of Sec. 3 i.e. for not
printing the name of the printer or publisher and none others. There is no authority
other than magistrate who can cancel declaration. Likewise, the Press Councils Act
does not make any provision for cancellation of registration of a newspaper. It can
only censure a newspaper or individual journalist.
2.3.5. It is submitted that the press operates under freedom of speech and expression
granted by Art. 19(1)(a) of the constitution and is subject to restrictions imposed
under Art. 19(2) . Restrictions can only be imposed by law. Based on such law,
courts can issue an injunction not to publish any defamatory or contemptuous
material. However, such an injunction can only specifically relate to the offending
material and cannot deprive a person permanently of exercise of a fundamental
right. The law accordingly has not made any provision for cancellation of
declaration or of permanently stopping a publication.
2.4. PROVISIONS UNDER CABLE TELEVISION NETWORKS (REGULATION) ACT, 1995 DO NOT
EMPOWER THE SUPREME COURT TO CANCEL THE LICENSE.

2.4.1. A cable Television Network cannot function without registration,19 doing so is an


offence under the Act. Central government can stop any cable operator from
functioning on the grounds of public interest. Programs can be stopped on the
grounds of violation of program code20 which include restrictions prescribed in
clause 6(1)(d) and 6(1)(f) i.e. no program should contain anything obscene,
defamatory, deliberate, false & suggestive innuendos and half-truths; anything
amounting to contempt of court.. Central Govt. can also include additional
eligibility criteria for registration of cable operators. Such criteria can be on all the
grounds mentioned in Art. 19 (2) for imposing restrictions on freedom of speech and
expression.
19
20

Cable Television Networks (Regulation) Act, 1995, 3


The Cable Television Networks Rules, 1994, Clause 6

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2.4.2. All these provisions show that it is only the Central govt. that can prohibit
transmission of certain programs in public interest under Sec. 19 if the programs
violate program code or advertisement code or tends to cause disharmony in the
public. Also, it is only the central govt. that can prohibit operation of a cable
television network in public interest under Section 20.
2.4.3. Sec. 21 says that application of other laws is not barred and that the provisions of
the act are in addition to the specifically mentioned acts. This act being the main act
that permits or prohibits cable networks and also prescribes powers, procedures and
authorities for taking such actions, any such action has to be taken under this act
only.
2.4.4. It is humbly submitted that the petitioner has approached the Honble Supreme
Court for cancellation of licenses of Janvani and Janvani News through writ
petition. It is a well understood law that the courts even while exercising powers of
judicial review and quashing specific actions of the administrative authorities do not
substitute their own decisions. The law empowers the executive to take a decision
and the courts do not usurp such powers. This Honble court cannot exercise
powers vested in the central govt. to prohibit operation of any cable network.
2.4.5. The Supreme Court of India has held in State of Orissa v. Gopinath Dash21
While exercising the power of judicial review of administrative action, the Court is
not appellate authority and the Constitution does not permit the Court to direct or
advise the Executive in matter of policy or to sermonize any matter which under the
Constitution lies within the sphere of the Legislature or the Executive, provided
these authorities do not transgress their constitutional limits or statutory power. The
scope of judicial enquiry is confined to the question whether the decision taken by
the Govt. is against any statutory provisions or it violates the fundamental rights of
the citizens or is opposedto the provisions of the Constitution. Thus, the position is
that even if the decision taken by the Govt. does not appear to be agreeable to the
Court it cannot interfere.22 Ashif Hamid v. State of J & K23 and Shri Sitaram Sugar

21

2005 (1 ) Suppl. SCR 352


Id., 701-g-h; 702-a-b
23
AIR (1989) SC 1899
22

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Co. v. Union of India24, were relied on.The policy decision must be left to the Govt.
as it alone can decide which policy should be adopted after considering all the
points from different angles. In matter of policy decisions or exercise of discretion
by the Govt. so long as the infringement of fundamental right is not shown Courts
will have no occasion to interfere and the Court will not and should
not substitute its own judgment for the judgment of the executive in such matters. In
assessing the propriety of a decision of the Govt. the Court cannot interfere even if a
second view is possible from that of the Govt.25

2.5. BY CANCELLATION OF LICENSE, THE RESPONDENTS RIGHT UNDER ART. 19(1)(A) AND
19(1)(G) WOULD BE DENIED
2.5.1. The Supreme of India in Maneka Gandhi v. Union of India26 has taken a view that
a law depriving a person of personal liberty has not only to stand the test of Art. 21
but it must stand the test of Art. 19 & Art. 14.
2.5.2. Right to equality under Art.14 has been interpreted as absence of arbitrariness.
This interpretation of equality given in E. P. Royappa v State of Tamil Nadu has
been accepted and repeatedly applied. P.N. Bhagwati. J. was of the view that
equality and arbitrariness are sworn enemies; one belongs to the rule of law in a
republic while the other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Art. 14.27
2.5.3. It is submitted that the respondent is running a newspaper and a television
network. Rights given under Art. 19(1)(a) can be reasonably restricted only on the
grounds mentioned in Art. 19(2) and a restriction that seeks to absolutely bar
exercise of the fundamental right would be arbitrary and unreasonable. Democracy
can thrive not only under the vigilant eye of its Legislature, but also under the care
and guidance of public opinion and the press is par excellence, the vehicle through
which opinion can become articulate28.It has been held that though the expression
24

AIR (1990) SC 1277


Id., 702-d-e; Metropolis Theatre Company v. City of Chicago, (1912) 57 L Ed 730
26
AIR 1978 SC 594
27
E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555
28
Indian Press Commission
25

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freedom of the press has not been used in Art. 19 but it is comprehended within
19(1)(a).It is the primary duty of the courts to uphold the freedom of the press and
invalidate all laws or administrative actions which interfere with it contrary to the
constitutional mandate.29

2.5.4. Likewise, rights given under Art.19(1)(g) can be reasonably restricted on the
grounds mentioned in Art. 19(6) . Interest of general public would be better served
by keeping an independent press and the cancellation of license would be extremely
harsh and unreasonable as it would prohibit exercise of the freedom of occupation,
trade or business not only of the respondent but also of a large number of
employees.
2.6. CANCELLATION OF LICENSE VIOLATES PRINCIPLE OF PROPORTIONALITY
2.6.1. It is submitted that the Parliament in its wisdom did not provide for cancellation
of declaration of a newspaper on any ground like contempt of court or defamation
which are specific acts adequately covered under other laws. Indian Supreme Court
in RamkrishnaDalmia v. Justice Tendolkar,30 while laying down principles to test
reasonableness of classification also laid down the following presumption :It must
be presumed that the legislature understands and correctly appreciates the need of its
own people, that its laws are directed to the problems made manifest by experience
and that its discriminations are based on adequate grounds31
2.6.2. It is submitted that the petitioner has sought total closure of the activities of
Janvani and Janvani News on the basis of articles alleged to be defamatory or
prejudicial to fair trial of his criminal case. The relief sought, if granted, would be
disproportionately harsh and would violate the principle of proportionality.
2.6.3. In Coimbatore Distt. Central Coop. Bank v. Employees Assn32 while laying down
applicability of proportionality, the Apex court held that it includes balancing and
necessity tests. Balancing test permits scrutiny of punishments on infringement
of rights, interests and a manifest imbalance of relevant considerations. Necessity
test requires infringement of fundamental rights to least restrictive alternative.
29

Supra Note 40
AIR 1958 SC 538
31
Maneka Gandhi v. Union of India, AIR 1978 SC 597, R. K Garg v. Union of India, AIR 1981 SC 1829
32
(2007) 4 SCC 696
30

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2.6.4. In R. v. Oakes33 Canadian Supreme Court observed that there are three important
components of the proportionality test. The first, measures adopted must be
carefully designed to achieve the objective in question. They must not be arbitrary,
unfair or based on irrational consideration. Secondly, the means must not only be
rationally connected to the objective in the first sense, but should impair as little as
possible the right to freedom in question. Thirdly, there must be proportionality
between the effects of the measures and objective.
2.6.5. In City of Boerne v Flores,34 the US Supreme Court held that the principle of
proportionality has been applied to legislation by stating that there must be
congruence and proportionality between the injury to be prevented or remedied and
means adopted to that end
Therefore, it is submitted that the cancellation of license would be excessive.
2.7. THERE IS NO DEFAMATION.
2.7.1. It is humbly submitted that in the impugned case there is no defamation of ABN
Group by Janavani Group.
2.7.2. It is humbly put forth that at the time of filing of the complaint of defamation,
none of the news items published by Janavani nor is anything broadcasted by
Janavani News specifically in context to ANB Group. The news group has merely
acted in public interest.
2.7.3. Janavani has been in the forefront of exposing all the corrupt practices in the
Union, coal scam being one of them.
2.7.4. It is pertinent to mention one of the most relevant cases of Indian Express
Newspapers (Bombay) Pvt. Ltd & Ors. Vs. Union Of India &Ors.35 wherein the
Apex court as early as 1985 held that freedom of press is the heart of social and
political intercourse and it has assumed the role of a public educator. It is submitted
that by releasing the document and conducting discussions Janavani has acted in
bonafide public good and sought to educate the public.

33

(1986) 26 DLR (4th) 200


(1997) 521 US 570
35
Supra Note 40
34

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2.7.5. It is further put forth that, freedom of discussion is essential to enlighten public
opinion in a democratic state it cannot be curtailed without the right of the public to
be informed through sources independent of the government concerning matters of
public interest36
2.7.6. The filing of defamation suit is a right of the plaintiff but the same cannot be
allowed to become a lethal weapon in sabotaging the freedom of the press. The print
and the electronic media being the eyes and ears of the citizens, its freedom cannot
be unreasonably trampled upon by resorting to legal processes and unreasonably
dragging them to face defamation and contempt cases37
2.7.7. In the present case, criminal charges cannot be instituted against ABN group as
there is no mens-rea which is a sine qua non of a crime.
2.7.8. With regard to criminal defamation it is submitted that third exception under
section 499 may be attracted in the present matter, which imbibes that it is not
defamation to express in good faith any opinion with regard to any person touching
any public issue.
2.7.9. Since there was no specific publication which can be attributed to be defamatory
towards ABN Group, it is submitted that no cause of action arises in the present
matter.
Hence, there is no defamation and license cannot be cancelled on this ground.

3. THAT THE HONBLE SUPREME COURT OUGHT NOT TO FORMULATE ANY GUIDELINES FOR
REPORTING OF CASES PENDING BEFORE THE COURTS OR REGARDING MATTERS WHICH ARE
SUB-JUDICE.

It is humbly submitted that this Hon'ble SC ought not to formulate any guidelines for
reporting of cases pending before the courts or regarding matters which are sub-judice.
It is humbly put forth that formulation of the same shall be detrimental in the interest of
justice on two major aspects;

36
37

Supra Note 46
Nirmaljit Singh Narulavs Sh. Yashwant Singh &Ors, (I.A. No.10017/ 2012 in CS(OS) 1518/2012)

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Firstly, it tends to encroach upon the right of freedom of Media which is a fundamental right
under freedom of speech and expression.38 Secondly, the same is not required as pre-existing
mechanisms are sufficient to check abuse of power by media along with self-regulation.
3.2. GUIDELINES TEND TO VIOLATE FREEDOM OF MEDIA.
3.2.1. It is humbly recalled that, Freedom of Media has always been a cherished right in
all democratic countries, and the press has rightly been described as the fourth
estate. The democratic credentials of the state are judged by the extent the freedom
press enjoys in the state.39
3.2.2. The purpose of press is to advance the public interest by publishing facts and
opnions without which a democratic country cannot make responsible judgements.40
The widest possible dissemination of information from diverse sources is necessary
for public education, which is a foundation of a democratic society.41
3.2.3. The newspapers, magazines and other journals of the countryhave shed and
continued to shed more light on the public and business affairs of the nation than
any other instrumentality of publicity42 , thus the aforementioned judicial
pronouncements along with UDHR43 clearly establish that free press is a sina qua
non of a free and democratic society.
3.2.4. In our nation freedom of press is enshrined under Art. 19(1)(a) of the
Constitution.44
3.2.5. Reportage by media of various cases keeps the public informed about judicial and
legal development and formulates an informed citizenry. The same is imperative for
a flourishing democracy.
3.2.6. Moreover there are also other advantages of an open justice system. Reporting of
court proceedings not only informs the public, but also disciplines the Judges who
know that they are being watched by people. The Indian SC has Held all agents of
38

Romesh Thapar v. State of Madras, (1950) SCR 594,602; Sakal Papers v. U.O.I, AIR 1992 SC 106; Bennett
Coleman & Co. v. U.O.I, (1972) 2 SCC 788; Supra Note 1
39
Printers (Mysore) Ltd v. Asst. Commercial Tax Officer, 1994 SCR (1) 682 ; M.P Jain, Indian Constitution Law
(6th Ed. Reprint 2012, Lexis Nexis Butterworth Wadhwa, Nagpur) p. 1086
40
Indian Express Newspapers(Bombay) Pvt. Ltd. v. UOI, AIR 1985 SC 515
41
Supra Note 38
42
Grosjean v. American Press Co., (1935) 297 US 233
43
Right to Impart Information and Ideas under Art. 19 of UDHR
44
Supra Note 38

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the public must be responsible for their conductpeople of the country have the
right to know every public act45

3.2.7. Imposition of pre-censorship on a newspaper46 or prohibiting it from publishing


its own views or correspondents on a burning issue of the day47, constitute an
encroachment of freedom of speech and expression.48 The Indian SC has remarked
that, The object of freedom of the press is to prevent public authorities from
assuming the guardianship of public mind. Our constitution guarantees freedom of
thought and expression, the only limitations being as provided under art. 19(2).49
3.2.8. It is humbly submitted that any kind of prior restraint, in the form of guidelines
would subvert the freedom of media. If the said freedom is abused then punitive
action can be taken thereafter in the form of subsequent punishment.
3.2.9. The reason why any kind of prior restraint was obnoxious but not subsequent
punishment was explained by Blackstone, any form of prior restraint is to fetter on
the free will of the people and an attempt to control liberty of expression by
administrative authorities. Whereas a subsequent punishment doesnt put any
restraint on the freedom of thought or expression; it only takes into account the
abuse of the freedom by punishing anybody who publishes what is made illegal by
law, as injurious to society.50
3.2.10. Quite clearly what Blackstone is suggesting here is that any prior restraint such
as the sought guidelines infringes the freedom of expression and the same shouldnt
be done, instead the punishment should be meted out by considering whether the
publication is punishable under law or is injurious to society. It is humbly put forth
that this court may follow the similar logic of jurisprudence, and thereby not
formulate any guidelines.

45

State of UP v. Raj Narain, AIR 1975 SC 865


Brij Bhushan v. Delhi, AIR 1950 SC 129
47
Virendra v. State of Punjab, AIR 1957 SC 896
48
Supra Note 39, p. 1086
49
Gajanan Visheshwar Birjur v. UOI, (1994) 5 SCC 550; Spt. v. Ram Manohar, AIR 1960 SC 633; Durga Das
Basu, Law of The Press (5th Ed. 2010, Lexis Nexis Butterworths Wadhwa) p. 115
50
(1765) IV BL 151-53; Id., D.D Basu, p. 20
46

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3.2.11. It is humbly put forth that in the present environment with the advent of social
media everyone is a journalist to issue guidelines in such an environment wouldnt
serve the purpose.51
Thus it is most humbly submitted that this court may abstain from forming any guidelines for
media reportage, as the same shall not be in the interest of justice
3.3. PRE-EXISTING MECHANISMS ARE SUFFICIENT TO CHECK ABUSE OF FREEDOM OF MEDIA
3.3.1. The likelihood of freedom of press to be abused is now evident in all modern
countries, still the freedom press cannot be dispensed with since it is the Ark of
the Covenant of Democracy.52 It is a necessary evil. A free press may be good or
bad, but a suppressed press would definitely be bad.53 That is why Jawaharlal Nehru
once said I would rather have a completely free press with all the dangers
involved then a suppressed or regulated press.54.
3.3.2. In the light of the abovementioned submissions it is humbly submitted that the
pre-existing mechanism is sufficient to deal with abuse of freedom of press while
reporting matters which are sub-judice.
3.3.3. Firstly, like all freedoms freedom of press is also not absolute and is subject to
reasonable restrictions as imbibed in section 19(2) of the constitution.
3.3.4. It is pertinent to not that Indian SC has observed that, It is the primary duty of
the court to uphold the said freedom of press and invalidate all laws or
administrative actions which interfere with the freedom of press contrary to the
constitutional mandate.55 It is humbly put forth that this constitutional mandate is
set out in art.19(2) and anything apart from the mentioned restrictions would
amount to violation of 19(1)(a).56Furthermore, judicial pronouncements have
established that exceptions to freedom of expression must be narrowly interpreted
and the necessity.convincingly established.57

51

Supra Note 49
Supra Note 38, Bennet Coleman Case, 158
53
Supra Note 49, D. D Basu, p. 62
54
Id. p 63
55
Supra Note 40
56
Supra Note 49
57
Observer and Guardian v. UK, 1991 14 EHRR 153,191
52

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3.3.5. Withholding the aforementioned authorities it is submitted that as per our


Constitution this court can attract provisions of Art. 19(2) in the event of abuse of
freedom enshrined in Art. 19(1). It is humbly put forth that such reasonable
restrictions are not only fairly exhaustive but also potent enough to curb any
serious abuse of freedom by media whilst reporting sub-judice matters.
3.3.6. The court may take recourse of many pre-existing mechanisms to discourage
media reportage which tends to obstruct administration of justice.
3.3.7. First and foremost, if the court feels that media reportage has perverted the
administration of justice it can initiate contempt of court proceedings against it.
3.3.8. In addition to that, if the court feels that media coverage of certain issue may lead
to a hindrance in the administration of justice it can conduct an in camera
proceedings. Or it can even instruct the media as to be cautious about certain things
and not report certain aspects of the case as instructed by the court. The same was
done in the infamous Delhi gang rape case recently, as reported by TOI58
3.3.9. Also, it is recalled that recently the Nagpur bench of the Bom HC had directed
Sony Entertainment channel so as to not showcase the Nirbhaya rape tragedy in its
show crime patrol, as such a thing shall be commercialisation of a tragic incident. In
the same case the SC also had stayed the use of the victims Friends TV
interview.59
3.3.10. It is also recalled, that in the decision of a 9-judge Bench in Naresh Shridhar
Mirajkar v. State of Maharashtra,60 the Supreme Court had prohibited the
publication of oral evidence provided by a witness. The said prohibition was for a
temporary period of thirty days.
3.3.11. Indian SC also whilst dealing with the issue of formulation guidelines on media
reportage realised that the same is not in the best interest of justice and the preexisting laid down principle in the constitution is suffice to check reckless media
reportage. It opined "We are not framing guidelines but we have laid down

58

on 22 march 2013
reported by TOI 23 Mar 2013
60
AIR 1967 SC 1
59

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constitutional principle and appropriate writ courts will decide when the
postponement order has to be passed on a case-by-case basis,"61

3.3.12. However it is submitted that, a court can order in camera hearing if it did not want
a reporting of a particular day's hearing. In this light it is submitted that the
doctrine of postponement also appears to be redundant. Furthermore, civil courts
have the power62 to pass orders prohibiting publication of court proceedings
3.3.13. It is humbly submitted that, over the years, the Courts have come up with several
neutralizing devices in case of excessive media prejudicial publicity. In other
words directions such as changing the trial venue, ordering a re-trial etc. were some
of the means adopted by Courts to ensure that the administration of justice was not
interfered with.63
3.3.14. All of the aforementioned cases are submitted to reflect the fact that the court
itself has inherent powers to balance out freedom of media and the right to fair trial
and formulations of any further guidelines would not only be unnecessary but may
detrimental in the interest of justice.
3.3.15. In addition to that the press council also have imbibed certain guidelines of
journalistic code of conduct in the year 2010 which checks the action of media.
Learned prof. MP Jain also suggest that Right of freedom of Media has to be
exercised responsibly and internal mechanism should be devised to prevent
publications that would bring judiciary into disrepute or interfere with the
administration of justice64.
3.3.16. It is humbly submitted that press should be allowed self-censorship and not made
to abide certain guidelines by some external institution. The reason for that is same
as the reason that, the courts may themselves formulate rules and regulations
amongst its own ambit, but at the same time not allow any other institution to do the
same so as to protect the independence of judiciary. Similarly to protect the
independence of press, which is equally important in a democratic nation such as
ours, we should allow the press and its own institutions to make its set of guidelines

61

Sahara v. SEBI, Civil Appeal No. 9813 OF 2011


Code of Civil Procedure, 1908 151 (India)
63
Supra Note 61
64
Supra Note 39, M.P Jain, p. 1109
62

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or code of conduct so as to imbibe self-regulation. In such a way we shall be
harmonizing the conflict between balancing the freedom of press and need for some
set guidelines.

3.3.17. Another argument in support of the aforementioned aspect is that other free
institutions such as that of Lawyers, Doctors, Charted Accountants, etc, are also
regulated by their own internal agencies such as Bar Council of India, Indian
medical Association, Institute of Charted accountants of India. It is humbly
submitted that the same should also be the policy in case of media.
In summation it is humbly submitted that any set of guidelines to regulate media wouldnt be in
the interest of justice as they tend to breach the imperative right of free media. Furthermore the
same shall be redundant as the pre-existing mechanism are sufficient to check any abuse of
freedom of media.

4. THAT THE REVERSE STING OPERATION CARRIED OUT BY ABN NEWS VIOLATES THE RIGHT
OF PRIVACY AND AMOUNTS TO INTERFERENCE IN THE ADMINISTRATION OF JUSTICE.

It is humbly put forth that the sting operation conducted by journalist of ABN News Group
amounts to infringement of the right to privacy and further amounts to interference in the
administration of justice.
4.1. STING OPERATION HAS VIOLATED RIGHT TO PRIVACY
4.1.1. It is humbly recalled that privacy of an individual is recognised as a human right
world over.65Privacy has been defined as, "right to be let alone66, or desire of
people to choose freely under what circumstances and to what extent they will
expose themselves, their attitude and their behaviour to others67

65

UDHR Art.12; ECHR Art. 8


Rajgopal v. State of Tamil Nadu, 1994 6 SCC 632
67
Alan Westin, Privacy and Freedom (1967)
66

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4.1.2. There is no specific law of privacy in India but SC in repeated pronouncements,


has held that it is an integral part of right to life under Art. 21 of the Constitution. 68
SC has remarked proper balancing of freedom of press as well as the right to
privacy and the defamation has to be done in terms of the democratic way of life
laid down in the constitution.69
4.1.3. In the present case, sting operation instituted by ABN News amounts to
infringement of right of privacy of Deputy Editor of Janavani News. The right to
privacy includesan individual's right to control dissemination of information
about himself; it is his own personal possession.70 By making public the alleged
video clip there has been a breach of the right to privacy by ABN News Group.
4.1.4. ShriMadhulkar Vats actions of calling a full-fledged press conference to release
the alleged video clip clearly showcase his intention to bring this issue into limelight
and public attention. Heused his power and influence to malign Janavani group, in
the process perverting the administration of justice.
4.1.5. The Indian SC remarked, No doubt, it would be mischievous for a newspaper to
systematically conduct an independent investigation into a crimeand to publish
the results of the investigation. The basis for this view is that such action on the part
of a newspaper tends to interfere with the course of justice, whether the
investigation tends to prejudice the accused or the prosecution"71
4.1.6. It is recalled the press is a servant, not the master of the citizenry, and its
freedom doesnt carry with it an unrestricted hunting licence to prey on ordinary
citizens.72 In the present case ABN News under the garb of Sting Operation has
tended to hunt down members of Janavani group. It is humbly submitted that such
intentions are borne out of malice against Janavani News Group, as they have been
responsible for bringing out the corrupt practiced which ABN Group has indulged in
during the course of coal block allocation.

68

Kharak Singh v. State of UP, AIR 1963 SC 1295; Govind v. State of Madhya Pradesh, AIR 1975 SC 1378; PUCL
v. U.O.I, AIR 1991 SC 207
69
Supra Note 66
70
A.C Breckenridge, The right to Privacy (1971)
71
Saibal Kumar v. B.K. Sen, 1961 SCR (3) 460
72
Miami herald v. Tornillo, (1974) 418 US 241

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4.1.7. At this instance it is imperative to look into the case of Court On Its Own Motion
v. State73, wherein 'Live India' a Television News Channel aired a programme on
30th August, 2007 regarding a sting operation conducted by them showing Ms. Uma
Khurana, a teacher with a Delhi Government school, purportedly forcing a girl
student into prostitution. Subsequently, a crowd gathered at the school gate and
started raising slogans demanding handing over of Ms. Uma Khurana to them. In
thecommotion and mayhem that followed some persons physically attacked Ms.
Uma Khurana and even tore her clothes. Consequent to public outcry the
Directorate of Education, Government of Delhi first suspended Ms.Khurana and
later dismissed her from service, in exercise of special powers vested in the
Government. Police hadnt conducted any investigating as yet.
4.1.8. Later on a news item was published in the Hindustan Times in which it was stated
that the girl who had been shown as a student who was allegedly being forced into
prostitution by Ms. Uma Khurana was neither a school girl nor a prostitute but a
budding journalist eager to make a name in the media world, and one Mr.Virender
Kumar, who had some monetary dispute with Ms. Uma Khurana, in connivance
with one Mr.Prakash Singh, hatched a plan to trap Ms. Uma Khurana in a stagemanaged act of forcing girls into prostitution.
4.1.9. The Honble Court observed that, The aforesaid position clearly establishes the
fact that an innocent person was being induced to commit a very heinous crime. Her
reputation has been damaged in the eyes of the public and even her modesty was
outraged in the sense that she was manhandled and her clothes were torn by some
people. The sting operation has become a stinking experience for her as she has not
only lost her reputation but also her job. The question is how the recurrence of such
incident could be stopped and minimised so that an innocent person cannot be
victimised and not made to lose reputation.
4.1.10. Considering this the following self-regulatory guidelines were enshrined by the
court:

There must be concurrent record in writing of the various stages of the sting
operation.

73

146 (2008) DLT 429

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Permission for telecasting a sting operation is to be obtained from a


committee appointed by the Ministry of Information and Broadcasting.

Permission to telecast sting operation will be granted by the committee after


satisfying itself that it is in public interest to telecast the same. This
safeguard is necessary since those who mount a sting operation themselves
commit the offences of impersonation, criminal trespass under false
pretence and making a person commit an offence.

While the transcript of the recordings may be edited, the films and tapes
themselves should not be edited. Both edited and unedited tapes be
produced.

All television channels must ensure compliance with the Certification Rules
prescribed under the Cable Television Network (Regulation) Act 1995 and
the Rules.

The subject matter of reports or current events shall not deliberately present
as true any unverified or inaccurate facts so as to avoid trial by media since
a "man is innocent till proven guilty by law"

4.1.11. Along with the aforementioned guidelines Norms of Journalistic Conduct have
also been incorporated by The PCI in 2010, which imbibe that Decision to report
the sting operation should be taken by the editor after satisfying himself of the
public interest of the matter and ensuring that report complies with all legal
requirements.74
4.1.12. It is humbly submitted that all the aforementioned guidelines have been flouted by
ABN News whilst conducting this sting. The legal requirements as enshrined in the
Guidelines as mentioned above were flouted.
4.1.13. Freedom of pressdoesnt mean that the press is free to pollute course of justice
or to do anything that is unlawful. 75
4.1.14. The sole purpose of this sting was to divert attention from ShriMadhulkar Vats
and his companys alleged corrupt practices in the coal scam and malign Janavani
News Group. It has purportedly interfered with the administration of justice and
74
75

Supra note 73
Schering chemicals v. Falkman, (1981) 2 ALL ER 321; Supra Note 39, D.D. Basu, p. 55

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sought to create a hostile environment against Janavani Group, in the light of
pending police investigation.

4.1.15. It is most pertinent to note that, right to privacy cannot be curtailed except
according to procedure established by law76. A sting operation necessarily
infringes this right. The same is justiciable only when it is done in accordance with
the procedure established by law.
In India we have no specific law which governs sting operations per se, however withholding the
abovementioned authority in the light of actions of ABN News it is humbly submitted that prima
facie, the impugned alleged sting was not done in accordance with procedure established by
law, thereby violating right to privacy.
4.2. LICENSE OF ANB NEWS IS LIABLE TO BE CANCELLED.
4.2.1. It is respectfully submitted that the Apex Court of India recently deprecated the
validity of sting operations if it is carried out in private interest77 or for an ulterior
purpose of either raising the TRP of the channel or source of minting money.78
4.2.2. Also in as per Section 5 of the Cable Television Networks (Regulation) Act, 1995
read with section 6(iv)of Cable Television Networks Rules, 1994, imbibes that no
programme can be transmitted/re-transmitted on any cable service which contains
anything obscene, defamatory, deliberate, false and suggestive innuendos and halftruths.
4.2.3. The present Sting operation is a deliberate attempt of malicious prosecution inlaid
with false, fabricated and moulded half-truths.
4.2.4. It is humbly put forth that the authenticity of the alleged video clip has not been
corroborated by the ABN Group. Police investigation till now hasnt verified the
abovementioned clip. The rule of corroboration isrule of prudence and the sole
purpose of this rule is to see that innocent persons are not unnecessarily made

76

Supra note 68, PUCL v. UOI


John W. Thornton, Expanding Video Tape Techniques in Pretrial and Trial Advocacy, 9 FORUM 105 1973 1974
78
R.DBohet, Ex-Dy. Supdt. Gr - I, Central Jail v. Lt. Governor of Delhi, Govt. of NCT of Delhi, CAT (Principal
Bench), Decided on: 24.11.2006 (Unreported)
77

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Memorial on Behalf of Respondent


victims...evidence of a complainant is sufficient to convict a person, if it is reliable,
acceptable and trust worthy.79

4.2.5. It is put forth that evidence in the present case is not reliable, since it comes from
an interested witness. ABN News being an opposing media group gains immensely
from the dishonor of Janavani News. Furthermore its not acceptable because it is
been procured through infringement of rights and in utter disregard of legal
provisions. Lastly, its also not trustworthy since police investigation hasnt verified
it.
It is humbly submitted that in the present case Section 20 of the Cable Television Networks
(Regulation) Act, 1995 be attracted. A writ of mandamus may be granted in favour of Ram
Prasad Kamal, by directing the government to prohibit operation of ABN News.
In Summation it is humbly put forth that ABN News has infringed the right of privacy and has
interfered in the administration of justice.

79

AniruddhaBahal v. State, 172 (2010) DLT 268

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Memorial on Behalf of Respondent

PRAYER

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed that this Hon'ble court may be pleased to
adjudge and declare that:

1. The writ petitions filed by Mr.Madhukar Vats are not maintainable


2. That the alleged string operation violates right to privacy
3. Grant the writ in the nature of mandamus in favour of Mr. Kamal, by directing
cancellation of license of ANB News

The court may also be please to pass any other order, which this Hon'ble court may deem fit in
the light of justice, equity and good Conscience.

All of which is most humbly prayed


Counsel for the Respondents.