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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

Team Code: T3

2 | P a g e M e m o r i a l o n B e h a l f o f R e s p o n d e n t

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. THE RESPONDENT’S COMMENT IS FAIR AND PROPORTIONATE.............................................. 17

2. 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 RESPONDENT’S RIGHT UNDER ART. 19(1)(A) AND

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

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


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

3. THAT THE HON’BLE SUPREME COURT OUGHT NOT TO FORMULATE ANY GUIDELINES FOR

REPORTING OF CASES PENDING BEFORE THE COURTS OR REGARDING MATTERS WHICH ARE SUB-

JUDICE. ....................................................................................................................................... 25

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

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. ..................... 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


LIST OF ABBREVIATIONS

A.I.R. All India Reporter

Art. Article

ASP All Sarvian Party

Co. Company

Ed. Edition

Hon’ble 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


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


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


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


STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached the Hon’ble Supreme court of Sarvia

under Art. 32 of the Constitution of Sarvia. The respondent submits to the same.


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


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 E-

Mail 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 didn’t 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 won’t 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 Hon’ble Chief

Justice of SC of Sarviaas it involved significant questions of law and public importance.


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 HON’BLE 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?


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 Hon’ble Supreme Court. Further, the

alternative remedies are sufficient and have not been exhausted. The respondent’s

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 respondent’s right to trade and occupation would be violated. Also,

cancellation doesn’t stand the proportionality test.

3. WHETHER THE HON’BLE 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


as pre-existing mechanisms are sufficient to check abuse of power by media. Lastly, self-

regulation 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.


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 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.”

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

Hon’ble Court.

1AIR 1978 SC 597 at p.6172AIR 1979 SC 1628


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

individual’s 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. The petitioner has effective alternative remedies under the relevant Acts:

i) 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.

3AIR 1952 SC 59 ;VidyaVermav. Shivnarain, AIR 1956 SC 1084 (1992) 4 SCC 61


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 Hon’ble 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.

5395 US 185 (1969)6(2002) 5 SCC 521


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 RESPONDENT’S 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 democracy’s 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


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 respondent’s 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 Black’s 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

8Lord Atkin in Ambard v. Attorney General for Trinidad and Tobago, AIR 1936 PC 141 at p.1459[1968] 2 QB 150, p. 15510Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspaper, AIR 1989 SC 190; S. Rangarajan v. P.Jagjivan, (1989) 2 SCC 57411Narain Das v. Govt. of MP, AIR 1974 SC 125212AIR 1964 SC 68513 Tata Press Ltd. v. MTNL, (1995) 5 SCC 139


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

publisher’s ‘freedom to print’ it is rather the citizen’s ‘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 printer’s name &place of

printing, publisher’s name & the place of publishing and the book or newspaper’s

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)15 Press and Registration of Books Act, 186716 Id., § 8B17 The Press Councils Act, 1978, § 13(2)(b)18 Id., § 14


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 Cable Television Networks (Regulation) Act, 1995, § 320 The Cable Television Networks Rules, 1994, Clause 6


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 Hon’ble 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 Hon’ble 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 35222 Id., 701-g-h; 702-a-b23 AIR (1989) SC 1899


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 RESPONDENT’S 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 127725 Id., 702-d-e; Metropolis Theatre Company v. City of Chicago, (1912) 57 L Ed 73026 AIR 1978 SC 59427 E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 55528 Indian Press Commission


“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 grounds”31

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 4030 AIR 1958 SC 53831 Maneka Gandhi v. Union of India, AIR 1978 SC 597, R. K Garg v. Union of India, AIR 1981 SC 182932 (2007) 4 SCC 696


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) 20034 (1997) 521 US 57035 Supra Note 40


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 interest”36

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 HON’BLE 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 Supra Note 4637 Nirmaljit Singh Narulavs Sh. Yashwant Singh &Ors, (I.A. No.10017/ 2012 in CS(OS) 1518/2012)


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 country…have shed and

continued to shed more light on the public and business affairs of the nation than

any other instrumentality of publicity…”42 , 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; BennettColeman & Co. v. U.O.I, (1972) 2 SCC 788; Supra Note 139 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. 108640 Indian Express Newspapers(Bombay) Pvt. Ltd. v. UOI, AIR 1985 SC 51541 Supra Note 3842 Grosjean v. American Press Co., (1935) 297 US 23343 Right to Impart Information and Ideas under Art. 19 of UDHR44 Supra Note 38


the public must be responsible for their conduct…people of the country have the

right to know every public act”45

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 doesn’t 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 shouldn’t

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 86546 Brij Bhushan v. Delhi, AIR 1950 SC 12947 Virendra v. State of Punjab, AIR 1957 SC 89648 Supra Note 39, p. 108649 Gajanan Visheshwar Birjur v. UOI, (1994) 5 SCC 550; Spt. v. Ram Manohar, AIR 1960 SC 633; Durga DasBasu, Law of The Press (5th Ed. 2010, Lexis Nexis Butterworths Wadhwa) p. 11550 (1765) IV BL 151-53; Id., D.D Basu, p. 20


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 wouldn’t

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 4952 Supra Note 38, Bennet Coleman Case, ¶ 15853 Supra Note 49, D. D Basu, p. 6254 Id. p 6355 Supra Note 4056 Supra Note 4957 Observer and Guardian v. UK, 1991 14 EHRR 153,191


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 victim’s Friend’s 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 pre-

existing 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 201359 reported by TOI 23 Mar 201360 AIR 1967 SC 1


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 201162 Code of Civil Procedure, 1908 §151 (India)63 Supra Note 6164 Supra Note 39, M.P Jain, p. 1109


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 wouldn’t 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 alone”66, or “desire of

people to choose freely under what circumstances and to what extent they will

expose themselves, their attitude and their behaviour to others”67

65UDHR Art.12; ECHR Art. 866Rajgopal v. State of Tamil Nadu, 1994 6 SCC 63267 Alan Westin, Privacy and Freedom (1967)


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 includes…an 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 Vat’s 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 crime…and 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 doesn’t 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.

68Kharak Singh v. State of UP, AIR 1963 SC 1295; Govind v. State of Madhya Pradesh, AIR 1975 SC 1378; PUCLv. U.O.I, AIR 1991 SC 20769Supra Note 6670 A.C Breckenridge, The right to Privacy (1971)71Saibal Kumar v. B.K. Sen, 1961 SCR (3) 46072Miami herald v. Tornillo, (1974) 418 US 241


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 hadn’t 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 stage-

managed act of forcing girls into prostitution.

4.1.9. The Hon’ble 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


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 press…doesn’t 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 company’s alleged corrupt practices in the coal scam and malign Janavani

News Group. It has purportedly interfered with the administration of justice and

74 Supra note 7375Schering chemicals v. Falkman, (1981) 2 ALL ER 321; Supra Note 39, D.D. Basu, p. 55


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 law”76. 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 half-

truths.”

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 hasn’t verified the

abovementioned clip. “The rule of corroboration is…rule 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. UOI77 John W. Thornton, Expanding Video Tape Techniques in Pretrial and Trial Advocacy, 9 FORUM 105 1973 -197478R.DBohet, Ex-Dy. Supdt. Gr - I, Central Jail v. Lt. Governor of Delhi, Govt. of NCT of Delhi, CAT (PrincipalBench), Decided on: 24.11.2006 (Unreported)


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 it’s not acceptable because it is

been procured through infringement of rights and in utter disregard of legal

provisions. Lastly, it’s also not trustworthy since police investigation hasn’t 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.

79AniruddhaBahal v. State, 172 (2010) DLT 268


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.

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