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Respondent Memorial

Civil Law (Jiwaji University)

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T- 12

2nd SURANA & SURANA & KLE LAW COLLEGE NATIONAL CONSTITUTIONAL
LAW MOOT COURT COMPETITION, 2018

13TH – 15TH April 2018

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Writ Petition (Civil) No. _____ / 2018

(Filed under Article 32 of the Constitution of India, 1950)

ALL INDIA MEDIA FEDERATION ................PETITIONER

v.

UNION OF INDIA &

ALL INDIA LAW STUDENTS’ ASSOCIATION .……...…RESPONDENT

MEMORIAL FOR THE RESPONDENT- UNION OF INDIA & ALL INDIA LAW
STUDENTS’ ASSOCIATION

TABLE OF CONTENTS
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LIST OF ABBREVIATIONS................................................................................................ iv

INDEX OF AUTHORITIES...................................................................................................v

CASES REFFERED AND CITED…………………..…………………………………vi-vii

STATEMENT OF JURISDICTION...................................................................................viii

STATEMENT OF FACTS.....................................................................................................xi

STATEMENT OF ISSUES.....................................................................................................x

SUMMARY OF ARGUMENTS............................................................................................xi

ARGUMENTS ADVANCED..................................................................................................1

1. The impugned code does not suffer from vires of excessive Delegation……….1

1.1. Due process of enacting sub-ordinate legislation …………….....……….…….1

1.2. Delegation of legislative power to the executive is within the prescribe limit…1

2. The rules of Impugned Code are neither arbitrary nor unreasonable and do
not grant unguided discretion to authorities and thus does not article 14 of the
constitution………………………………………………………………………...4

2.1 Rules are not arbitrary and unreasonable……………………………….……...5

2.1.1 Classification of disputes is based on intelligible differentia…..5
2.1.2 The differentia or classification have a rational nexus with the
object sought to be achieved by the statute……………………..6
2.2 The Rules do not grant any unguided discretion to the authorities…………….6
2.2.1 The grant of discretion is constitutional………………………...6
2.2.2 The discretion is guided by the Cable Television (Regulation) Act
itself, hence not unguided…………………………………..7
2.3 The discretion granted does not violate Article 14 of the Constitution……..…8
3. The impugned code does not violate the fundamental right of Freedom of
Speech and expression or any other provisions of law………………………….9
3.1 The Restrictions Imposed by the Impugned code are Reasonable …………10

3.1.1. The Restrictions imposed by the Impugned Code are neither

Arbitrary nor Excessive ……………………….……………...10

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3.1.2. There is a Reasonable Connection between the Restrictions

Imposed and object behind them……………………………...11

3.1.3. The Impugned code is imposed in Public Interest and is meant

to Protect Social Welfare …………………………………….14

PRAYER………………………………………………………………..…………...xii

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TABLE OF ABBREVIATION

& And
¶ Paragraph
AIR All India Reporter
Anr Another
Art. Article
AP Andhra Pradesh
CJ Chief Justice
Co. Company
Corpn. Corporation
CTO Chief Technical Officer
DTAA Double Taxation Avoidance Agreement
Ed. Edition
Govt. Government
Hon’ble Honourable
JILI Journal
Ltd. Limited
MP Member of Parliament
No. Number
Ors. Others
Pvt. Private
Raj. Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Courts Reports
SCWR Supreme Court Weekly Reporter
SGST State Goods and Service Tax
U/S Under Section
U.P. Uttar Pradesh
W.B. West Bengal

INDEX OF AUTHORITIES

STATUES REFERRED

The Constitution of India, 1950

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Cable Television Network (Regulation) Act, 1995

The Contempt of Courts Act, 1971

BOOKS REFERED

ARVIND P DATAR, COMMENTARY ON THE CONSTITUION OF INDIA (2nded. Lexis

Nexis 2010) M.V. PYLEE, CONSTITUTIONAL AMENDEMENT IN INDIA, (4th ed.
Universal law Publishing 2012).

M.P. JAIN, INDIAN CONSTITUIONAL LAW, (7th ed. Lexis Nexis 2016).

DURGA DAS BASU, COMMENTARY ON THE CONSTITUION OF INDIA, (8th ed.

2011)

D BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA, , (22nd ed, Lexis nexis, 2008)

DR. SUBHASH C. KASHYAP, CONSTITUTION MAKING SINCE 1950 AN OVERVIEW,

(1st ed. 2006).

H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. Universal law publishing co.
2014)

M.P. JAIN, CONSTITUTIONAL LAW OF INDIA, (7th ed., Wadhwa Publication 2016)

S P SATHE, ADMINISTRATIVE LAW, (7th ed. LexisNexis Butterworths Wadhwa Nagpur)

C.K TAKWANI,., “LECTURES ON ADMINISTRATIVE LAW”, (3rd Edition, Eastern Book

Company)

CASES REFERRED AND CITED

Cases Referred and Cited Referred in

Agricultural Market committee v. Shalimar Chemical Works Ltd. 2
(1997) 3 SCC 741
Ajaib singh v. Gurbachan Singh, AIR 1995 SC 1619 1

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Avinder Singh v. State of Punjab, (1979) 1 SSC 137 1

Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. (2011) 1 SCC 8
640
Barium Chemical ltd. v. Company law Board, AIR 1967 SC 295 1
D.D. Joshi v Union of India (1983) 2 SCC 235 5
Delhi Science Forum v. Union of India, (1996) 2 SCC 405 8
E.M.S Namboodiripad v. T.N. Nambiar, AIR 1970 SC 2015 13
Food Corporation of India v. Bhanu Lodh (2005) 2 SCC 575 3
Gaette printing co. v. shallow (1909) 41 SCR 339 5
Ganpati singhji v. state of Ajmer AIR 1995 SC 188 1
Gobind v. State of Madhya Pradesh and Another, (1975) 2 SCC 148 14
Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 8
Ramlila Maidan Incident v. Home Secretary, Union of India, (2012)5 10
SCC 1
In Re Delhi laws act, 1912, Ajmer-Merwara (extension of laws) Act, 3
1947; and part ‘C’ States (laws) act, AIR 1951 SC 332
In D.C. Saxena (Dr.) v. Chief Justice of India, (1996) 5 SCC 216 13
Jyoti Pershad v. Union Territory of Delhi, (1962) 2 SCR 125 7,9
Kathi Raning Rawat v. State of Saurashtra AIR 1952 SC 123 7
Kharak Singh v. State of Uttar Pradesh and Others, 1963 AIR 1295 14
Kumari Chitra Ghosh v. Union of India (1969) 2 SCC 228 5
Manu Sharma v. State (NCT of Delhi), (2010) 2 SCC (Cri) 1385 11
Mohammed Ajmal Mohammad Amir Kasab(Abu Mujahid ) v. State of 15
Maharashtra, (2012 ) 9 SCC 1
Namit Sharma v. Union of India, (2012) 13 SCC 716 5
NarainDas v. State of MP (1974) 4 SSC 788. 1
Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345,3347 13
Papnasam Labour Union v. Madura Coats Ltd., (1995) 1 SCC 501 10, 11, 14
R. Rajagopal and Another v. State of Tamil Nadu and Others (1994) 6 14
SCC 632
Rajnarain singh v. Patna Admn. Committee AIR 1995 SC 569 2
Roy v. State of Punjab (1986) 4 SSC 326 1
S.K. Chakraborty v. Union of India (1988) 3 SCC 575 5
Sahara India Real Estate Corpn. Ltd v. Securities and Exchange Board 10
of India, (2012)10 SCC 603
Southern Agriculture Industries Ltd. v. CTO (2005) 2 SCC 575 3
St. Johns Teachers training institute v. National council for teacher 4
education, (2002) 3 SCC 322
State of Haryana v. Jai Singh (2003) 9 SCC 114 5

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State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386 12

State of Punjab v. Gurmit Singh, (1976) 2 SCC 384 15
State of U.P. v. Naresh and Ors. (2001) 4 SCC 324 11
State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75 6
Zahira Habibullah Sheikh and ors v. State of Gujarat and ors (2006) 3 11
SCC 374

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon'ble Supreme Court of India under Art. 32 of the
Constitution of India, 1950.

“32. Remedies for enforcement of rights conferred by this Part

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

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

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

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.”1

The Respondent humbly submits to the jurisdiction of the Hon’ble Court.

STATEMENT OF FACT

CONTENTION OF AILSA
The All India Law Students’ Association filed a PIL in the Supreme Court of India seeking
appropriate remedy against media citing different incidents wherein media is alleged to have
invaded upon the rights of the people in specific and caused threat to the societal interest at
large. The matters involve issues relating to sexual abuse of a female employee in a reputed
TV channel, fake news shaking religious sentiments, medial trial of cruelty, death of a minor,
depicting false image of the judiciary, terrorist attack on Hotel Ashoka.
INTIATIVE TOWARDS NATIONAL SECURITY
UOI appeared and after the preliminary hearing submitted affidavit to take necessary
measures to address the unruly behaviour of media houses and to protect the interest of

1 Constitution of India, 1950

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national security, interest of general public and to safeguard the image and integrity of the
judiciary.

Formulated Code Through Ministry

To comply with its undertaking to the Court, the UOI initiated process through its Ministry of
Broadcast and Information Technology, drafted rules to regulate the content of media houses.
After considering the responses and objections, the Ministry exercising its power under the
Cable Television Networks (Regulation) Act, 1995 issued the following programme code in
place of the existing programme code which restricted the former activities of the media.

Terms of The Code

The code restricts the power of telecasting and broadcasting by the media in certain specific
conditions. The media houses debated that such rules are arbitrary and unreasonable, suffers
excess delegation, restricting freedom of press and is in contravention to other Indian
legislations.
RIGHTS OF EXPRESSION OF MEDIA HOUSES
The media houses debated the Programme Code and gathered the support of many editors,
jurists and libertarians and under the auspices of All India Media Federation (AIMF) filed a
writ petition in Supreme Court challenging the constitutional validity of the impugned Code.
AIMF challenged the vires of the Programme Code issued by the Union of India inter alia.
The AILSA filed an intervening application before the Court seeking to represent the interest
of the victims of the media excesses. The court added AILSA as an intervener to the case and
admitted the writ petition of AIMF for final hearing.

STATEMENT OF ISSUES

The following questions are presented for adjudication in the instant matter:

ISSUE I

Whether the impugned code suffers from vires of excessive Delegation?

ISSUE II

Whether the rules of the impugned code are arbitrary, unreasonable and grant unguided
discretion to the authorities, and thus violates Art. 14 of the Constitution?

ISSUE III

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Whether the impugned code violates the fundamental right of Freedom of Speech and
expression along with any other provisions of law?

SUMMARY OF ARGUMENTS

1. Delegated Legislature is one of the essential elements of administration whereby the

executive has to perform certain legislative functions. The code by the ministry is not
ultra vires. Since; Firstly, Ministry took the due procedure of enacting sub-ordinate
legislation. The parent act empower government to come up with certain rule, and
tabled the impugn code before parliament. And secondly, The delegation of legislative
power to the executive is within the prescribe limit. The parent act impliedly prescribe
the policy and guidelines to delegated legislation. The delegated legislation passed the
touchstone laid down by the Supreme Court in Re Delhi act, 1912.

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2. The rules of the impugned does not violate the Right to Equality under Art. 14 of the
Constitution. Since: Firstly, the rules are neither arbitrary nor unreasonable since it
restricts telecasting of certain disputes for public welfare and classification between
the disputes is rational. And secondly, the rules do not grant unguided discretion to
authorities since there are guidelines in the parent act itself to direct the discretionary
power. The approval for the telecasting with consideration of public interest and
national security, does not amount to unguided discretion. And the rules are
consistent with the principle of Rule of Law.
3. The impugned code does not violate Freedom of Press under Art. 19(1)(a) of the
Indian Constitution and the restrictions imposed by the impugned code are reasonable
in nature. Since firstly, the restrictions are neither arbitrary nor excessive beyond what
is required in the situation in the interest of the public. Secondly, the restrictions
imposed have direct proximate nexus with the objects sought to be achieved by the
impugned code. Lastly, the impugned code serves the idea of public interest and does
not allow threat to national security. Therefore, the restrictions imposed are certainly
reasonable.

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ARGUMENTS ADVANCED

1. The Impugned code does not suffer from vires of Excessive Delegation
It is humbly submitted before this honorable court that The Constitution of India empowers
Legislature to make laws for the country 2. One of the significant legislative function is to
determine a legislative policy and to frame it as a rule of conduct. Obviously such powers
cannot be conferred on other institutions. But keeping in mind various multifarious activities
of a welfare State, it is not possible for the legislature to perform all the functions. In such
situation, the delegated legislation comes into the picture. Delegated Legislature is one of the
essential elements of administration whereby the executive has to perform certain legislative
functions. By keeping in mind that, a) they perform the due process of enacting sub ordinate
legislation. b) Delegation of legislative power to the executive is within the prescribe limit.

1.1 Due process of enacting sub-ordinate legislation

Sub-delegation of power has to be authorized by parent act, if the parent act did not authorize
in express way then that delegation will be ultra vires. 3 Every delegation is subject to the
authority and control of the principal, and the exercise power of delegation can always be
directed, corrected, or cancelled by the principal. Hence parliamentary control over delegated
legislation should be a living continuity as constitutional necessity.4

In the instant matter, the ministry of Broadcasting and Information technology exercising
power under Section 21 of Cable Television Network Act 1995, issued the following
programme code in place of the existing programme code, and it is implied that they also
followed the procedure prescribed by the sub-section 3 of the same section that talks about
the tabling code before both house.

1.2 Delegation of legislative power to the executive is within the prescribe limit.

It is humbly submitted before this honorable court that it is now well-established by the
decision of this Court that the power of delegation is a constituent element of the legislative
power as a whole, and that in modern times when the Legislatures enact laws to meet the
challenge of the complex socio-economic problems, they often find it convenient and
necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying

2 Article 245 of Constitution of India, 1950.

3 Roy v. State of Punjab (1986) 4 SSC 326. See also Ganpati Singhji v. State of Ajmer AIR 1995 SC 188: Ajaib
singh v. Gurbachan Singh, AIR 1995 SC 1619; NarainDas v. State of MP (1974) 4 SSC 788. Barium Chemical
ltd. V. Company law Board, AIR 1967 SC 295.
4 Avinder Singh v. State of Punjab, (1979) 1 SSC 137.

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out the policy laid down by their Acts. The extent to which such delegation is permissible is
also now well-settled. The Legislature cannot delegate its essential legislative function in any
case. It must lay down the legislative policy and principle, and must afford guidance for
carrying out the said policy before it delegates it subsidiary powers in that behalf.5

Essential legislative function means laying down the policy of the act and enacting the policy
into a binding rule of conduct. In other words, the legislature must lay down legislative policy
and purpose sufficient to provide a guideline for administrative rule-making. If any delegated
legislation change the policy of parent act then held ultra vires. 6 The policy of law may be
express and implied7 and can be gathered from the history, preamble, title, scheme of the act
or object and reason clause, etc8.

It is to say that Section 19 and 20 of the Cable Television Networks Act 1995 impliedly
provide policy and guidance. Section 19 empowers any authorized officer prohibit
transmission of any programmes or channel if, it is not in conformity with the prescribed
programme code referred to in Section 5 or in public interest, if it likely to promote, on
grounds of religious, race, language, caste or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will between different religious groups or
castes or communities or which is likely to disturb the public tranquility. 9 By Section 20
Central Government has power to prohibit operation of any television network by notification
in the official gazette, in the interest of sovereignty or integrity of India or security of India or
friendly relation of India with foreign state or public order, decency or morality.

So aforesaid argument in a way define policy and of act, which is to prohibit telecast of any
programme in the public interest. So the impugned code is not going against the policy of act.
Act also provide guidance by empowering the officer or central government to prohibit
programme code on various grounds.

It is humbly submitted before this honorable court that in the landmark case of Re Delhi Law
Act 1912, which is known as bible of delegated legislation. It provides that the legislative
authority can so delegate its function if the delegation can stand three tests.

5 Vasantlal Maganbhai Sanjanwala v. The State of Bombay and Ors. (25.08.1960 - SC) : MANU/SC/0288/1960
6 Rajnarain singh v. patna admn. Committee AIR 1995 SC 569.
7 Agricultural Market committee v. Shalimar Chemical Works Ltd.(1997) 3 SCC 741.
8 I P Massey, “ Administrative law” 7th ed. Eastern book company, page 103.
9 Section 19, Cable Television Networks Act 1995.

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(1) It must be a delegation in respect of a subject or matter which is within the scope of the
legislative power of the body making the delegation.

(2) Such power of delegation is not negated by the instrument by which the legislative body is
created or established. And

(3) it does not create another legislative body having the same powers and to discharge the
same functions which it itself has, if the creation of such a body is prohibited by the
instrument which establishes the legislative body itself.10

It is evident from the aforementioned test that delegated legislation is passing the touchstone
because the subject matter of delegation is within the scope of parent act, neither it is
negating the instrument of parent act, nor it is creating the parallel legislation having same
power or function. So the impugned program code does not suffer from vires of excessive
delegation.

It is humbly submitted before this honorable court that in order to determine the
constitutionality of delegated legislation, the context and the background in which rule was
made can be taken into consideration. 11 In the case of Food Corporation of India v. Bhanu
Lodh12 the court emphasized that while deciding on the constitutionality of delegated
legislation “proportionality” approach may produce better result in cases involving serious
violation of public interest.

It is to say that the impugned programme code is the result of PIL filled because of unruly
behavior of media houses. The media house performed such acts which disturbed the
tranquility of general public such as telecasting breaking news without honoring the identity
of the victim. They also published fake news that has shaken the religious sentiment of a
particular community, before convection they portrait guilty to a person. In in spite of advice
from government they didn’t stop the program related to blind believe. They also telecasted
hypothetical news which transgress the image of judiciary. They telecasted live coverage of
terrorist attack, which gave the tactical advantage to terrorist13.

So by considering the aforesaid context and background the ministry came up with
prepositional effective programme code to check the unruly behavior of media houses and to

10 In Re Delhi laws act, 1912, Ajmer-Merwara (extension of laws) Act, 1947; and
part ‘C’ States (laws) act, 1950 1951 SCR 747 : AIR 1951 SC 332
11 Southern Agriculture Industries Ltd. v. CTO (2005) 2 SCC 575
12 (2005) 2 SCC 575
13 Moot proposition, Para I, p.no. 2

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protect the interest of national security, interest of general public and to safeguard the image
and integrity of the judiciary. Hence delegated legislation is constitutionally valid.

It is humbly submitted before this honorable court that when a statue challenged on the
ground of excessive delegation, there is presumption in favour of its vires and if two
interpretations are possible, one that make it constitutional is to be adopted. Courts may also
read down and interpret the law in a way as to avoid its being declared unconstitutional. 14
This is being done in a view of the fact that today delegation of legislative power has become
a “compulsive necessity”15

2. The rules of Impugned Code are neither arbitrary nor unreasonable and do not
grant unguided discretion to authorities and thus not violates article 14 of the
constitution.

In is most humbly submitted before the Hon’ble Court that the rules of the Impugned
Programme code issued by the UOI under the Cable Television Networks (Regulation) Act
1995, are neither arbitrary nor unreasonable. Although these rules restricts telecasting of
certain issues completely, but in the interest of general public such restriction is reasonable.
The rules are alleged of granting unguided discretion to authorities regarding approval for
telecasting of certain matters. The Programme code does not have any provision with regard
to the use of that discretion however, the guidelines can be traced through the parent
legislation “Cable Television Networks (Regulation) Act”. Therefore, programme code is
consistent with all the ingredients of the art. 14 of the Constitution, which ensures the
“Equality before law”.

2.1 Rules are not Arbitrary and Unreasonable:-

In the instant matter the Respondent humbly submits before the Court that the rules of
impugned programme code are not arbitrary and unreasonable. The rules are based on
principle of reasonable classification.

Article 14 does not forbid reasonable classification which means: It must be based on
reasonable and intelligible differentia16; and such differentia must have a rational nexus with
the object of the Act.17

14 St. johns Teachers training institute v. National council for teacher education, (2002) 3 SCC 322.
15 I P Massey, “ Administrative law” 7th ed. Eastern book company, p. n. 97.
16 M.P. Jain, Indian Constitutional Law, Page no. 881 , (7th ed., Lexis Nexis, 2014)
17 Namit Sharma v. Union of India, (2012) 13 SCC 716

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2.1.1 Classification of disputes is based on intelligible differentia –

The expression “intelligible differentia” means difference capable of being understood. It

distinguishes persons and things that are grouped together from those that are left out of the
group.18 Legislature undoubtedly has a wide field of choice in determining and classifying the
subject of its laws, and if the laws deals alike with all of a certain class, it is normally not
obnoxious to the charge of denial of equal protection. But the classification should never be
arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable
and just relation to the things respect to which the classification is made 19, and the
classification made and without any substantial basis should be regarded as invalid.

In the present matter the rules of the programme code reasonably classifies between subject
matters of telecasting. The impugned programme code restricts media from telecasting
anything pertaining to the matrimonial disputes pending before any court in India and telecast
or broadcast anything pertaining to the offender of sexual offences and about the victim and
functioning of the judiciary and about the judges’ conduct in the court premises.20

The general advantage to the country in having these proceedings made public, more than
counter balances the inconveniences to the private person whose conduct may be subject of
such proceedings.21

Therefore, even though the code restricts telecast of certain kinds of disputes only, these
certain disputes can be regarded as a class itself because of the special circumstances arising
out of irresponsible coverage by media. Hence the restriction on telecasting of certain kinds
of disputes only is a valid classification and does not amount to arbitrariness and
unreasonableness. Therefore, it is rationally just to restrict the telecast of these specific kinds
of dispute.

2.1.2 The differentia or classification have a rational nexus with the object sought to be
achieved by the statute.22

The rules serves the purpose of the code. The object of the code is to address the unruly
behaviour of media houses and to protect the interest of national security, interest of general

18 Kumari Chitra Ghosh v. Union of India (1969) 2 SCC 228, S.k. Chakraborty v. Union of India (1988) 3 SCC
575, D.D. Joshi v Union of India (1983) 2 SCC 235, State of Haryana v. Jai Singh (2003) 9 SCC 114.
19 M.P. Jain, Indian Constitutional Law), Page no. 878 , (7th ed., Lexis Nexis, 2014)
20 Moot Preposition, Para II, P. no. 2
21 Gaette printing co. v. Shallow, (1909) 41 SCR 339
22 State of West Bengal v. Anwar Ali Sarkar, 1952 AIR 75

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public and to safeguard the image and integrity of the judiciary. 23 Every rule under the
programme code is a step towards this. Restricting the telecasting of anything pertaining to
the matrimonial disputes pending before any court in India, offender of sexual offences and
the victim, aims to protect interest of general public. Restriction on telecast on functioning of
the judiciary and about the judges’ conduct in the court premises aims to safeguard the image
and integrity of judiciary.

2.2 The rules do not grant any kind of Unguided Discretion-

In the instant matter the petitioner has contended that rules of the Impunged code grant
unguided discretion to some authorities. As per the contention the Rule grants unguided
discretion to IISc, Bangluru, National Woman’s commission and court concerned, and
Secretory, Ministry of Defence. The Respondent humbly submits before this court the
discretion grant through the impugned code to the Authorities Is guided discretion.

2.2.1 The grant of discretion is constitutional-

It is not possible for the legislature to envisage in detail every possibility and make provision
for them. The Legislature, therefore, is forced to leave the authorities created by it an ample
discretion limited, however by the guidance afforded by the Act. 24 This is the ratio of
delegated legislation, and is a process which has come to stay, and which one may be
permitted to observe is not without its advantages.25 The mere fact that the legislation is
skeletal, or the fact that a discretion is left to those entrusted with administering the law,
affords no basis for the contention that the discretion vested is uncanalised and unguided as
to amount to a carte blanche to discriminate.26

If the legislative policy is clear and definite and as an effective method of carrying out that
policy a discretion is vested by the statue upon a body of officers to make selective
application of law, the statute cannot be condemned as a piece of discriminatory legislation.
In such case, the power given to the executive body would import a duty on it to classify the
subject matter of legislation in accordance with objective behind the statue. The discretion is
conferred on official agencies in such circumstances is not an unguided discretion.27

23 Moot Preposition, Para II, P. no. 2

24 DURGA DAS BASU, COMMENTARY ON INDIAN CONSTITUTION 1575-80 (vol. 2, 8th ed., Lexis
Nexis 2007), (1952).
25 M.P. Jain, Indian Constitutional Law, Page no. 911 , (7th ed., Lexis Nexis, 2014)
26 Jyoti Pershad v. Union Territory of Delhi, (1962) 2 SCR 125
27 Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123

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2.2.2 The discretion is guided by the Cable Television (Regulation) Act itself, hence
not unguided-

Although the programme code itself does not contains any guidelines for the authorities while
exercising the discretionary power. However there is sufficient material in the act which
indicates the policy which is to be a guide for exercising the discretion and it is expected that
the discretion is exercised in accordance with it. Sec. 20 of Cable Television Networks
(Regulation) Act, 1995 states that Where the Central Government thinks it necessary or
expedient so to do in public interest, it may prohibit the operation of any cable television
network in such areas.

Sec. 19 of the said act provides for different postulates for it on grounds of religion, race,
language, caste or community or any other ground whatsoever, disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or
castes or communities or which is likely to disturb the public tranquillity.

Suicide of a victim of sexual abuse, death of a Ten year old girl and terrorist attack on the
Hotel Asoka are result of the irresponsible coverage by the all the TV channels. 28 The
irresponsible work of cable telecasters is responsible for all these unfortunate events.
Therefore, existing mechanism was not competent to stop the abuse of media. A discretion
power in the hands of authorities is the most feasible mechanism in the eyes of many.
Although it makes media bound to take prior approval from the authority, but for the interest
of general public it is reasonable. Hence the discretionary power is not unguided and must be
within parameters of safeguards of public tranquillity as provided under sec. 19 of Cable
Television Networks (Regulation) Act, 1995.

2.3 The Discretion Granted does not Violate Art. 14-

It is most humbly submitted before the Hon’ble court that the rules of the Programme code
does not violate article 14 of the constitution. The impugned code is in conformity with all
the essentials of the article. The rules under the code are neither arbitrary nor unreasonable
and also does not grant unguided discretion.

Discretion conferred upon government authority under art. 12, most be exercised reasonably,
rationally, in public interest and in conformity with the conditions which central government
should prescribe to safeguard the interests of the public and the nation. Discretion implies a

28 Moot Proposition, Para I, P.no. 1

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fiduciary duty to act with due restraint. Wednesbury principle of reasonableness can be
applied for such discretion. The exercise of power must be exercised in such a manner, as a
reasonable man could ever have exercised.29

In case of Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. 30, Supreme Court held
consideration of public interest and policy, when licensing of industries issues within domain
of executive to decide, is valid. Similarly in the instant matter under the impugned
programme code while granting the approval, consideration of public interest and policy IISc
Bangluru, National Woman’s commission along with the court concerned and Secretary,
Ministry of Home Affairs and Secretary, Ministry of Defense, is reasonable and non-arbitrary.

So long as the policy is laid down and a slandered established by a statue, no unconstitutional
delegation of legislative power is involved in leaving to selected instrumentalities the making
of subordinate rules within prescribed limits and the determination of the facts to which the
policy as declared by the legislature is to apply.31

The restriction on media on ground of public policy has been in existence for a significant
period of time. Sec. 7(b) of contempt of courts act, 1971 also recognises that the court may on
the ground of public policy or in exercise of any power vested in it, expressly prohibit the
publication of all the information relating to the proceeding of or information of the
description which is published.

As long as the legislature indicated its purpose and lays down the policy it is not necessary
that every detail of the application of the law to particular cases should be laid down in the
enactment itself.32

In the instant matter the purpose and policy of the programme code is clear, as it aims to
protect the interest of general public from the scrutiny of media. And in order to achieve that
purpose the discretion is granted to certain authorities. Although the programme code does
not contain any guidelines in exercising the discretion, but it is neither necessary for the code
to contain detail of application it under the code itself.

29 Delhi Science Forum v. Union of India, (1996) 2 SCC 405

30 (2011) 1 SCC 640
31 Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465
32 Jyoti Pershad v. Union Territory of Delhi, (1962) 2 SCR 125

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3. The Impugned code does not violate the Fundamental Right of speech and
expression under the Constitution of India along with any other provisions of
law.

It is humbly submitted before this Hon’ble Court that the impugned code does not violate
fundamental Right of Freedom of Speech and Expression under Art. 19(1)(a). The code
merely imposes certain restrictions on the right to protect the security of state and public
interest.33

It is humbly submitted before the court that petitioner`s right to speech and expression under
Art. 19(1)(a) is subject to certain restrictions under Art. 19(2). It empowers the state to
impose certain reasonable restrictions on the freedom of speech and expression under Article
19(1)(a) of the constitution.34 Restrictions can be placed on the grounds like security of the
state, friendly relations with foreign states, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.35

While it is necessary to maintain and preserve freedom of speech and expression in a

democracy, so also is to place some curbs on this freedom for the maintenance of social order.
No freedom can be absolute or completely unrestricted. 36 In the instant matter, the restrictions
imposed by the impugned code are for the maintenance of social order and fall within the
purview of Art. 19(2).

3.1 The Restrictions Imposed by the Impugned code are Reasonable

It is humbly submitted before the court that restrictions imposed on the freedom of Speech
and expression are reasonable and seek to protect the interest of national security, interest of
general public and to safeguard the image and integrity of the judiciary.

The Supreme Court in the case of Papnasam Labour Union v. Madura Coats Ltd37, stated
some principles and guidelines which should be kept in view while considering the
constitutionality of a statutory provision imposing restriction on a Fundamental Right
Guaranteed by Art. 19(1)(a) to (g) when challenged on the ground of unreasonableness of the
restriction imposed by it.

33 Moot proposition, Para II, P. no. 2

34 M.P. Jain, Indian Constitutional Law, Page no. 1043 , (7th ed., Lexis Nexis, 2014)
35 Article 19(2), The Constitution of India, 1950
36 Ramlila Maidan Incident v. Home Secretary, Union of India, (2012)5 SCC 1; Sahara India Real Estate Corpn.
Ltd v. Securities and Exchange Board of India, (2012)10 SCC 603
37 AIR 1995 SC 2200

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In the instant matter, the restrictions imposed are well within the purview of reasonableness
according to the principles and guidelines outlined in the case of Papnasam Labour Union v.
Madura Coats Ltd.38

3.1.1 The Restrictions imposed by the Impugned Code are neither Arbitrary nor
Excessive.

In the instant matter the restriction imposed under the impugned code, are neither arbitrary
nor excessive. As discussed in the previous issue, the restrictions are merely a classification
to protect national security and public welfare. The restrictions cannot be regarded arbitrary
because of the discretion granted to authorities. Since the discretion of the authorities is
guided by the principles of public policy, national security and social welfare, therefore, the
restrictions are not unreasonable in nature.

3.1.2 There is a Reasonable Connection between the Restrictions Imposed and

object behind them.

The Supreme Court in the case of Papnasam Labour Union v. Madura Coats Ltd39 stated that
“There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved”. 40

In the instant matter the object behind the Impugned Code was to protect the interest of
national security, interest of general public and to safeguard the image and integrity of the
judiciary. For the same objects, the restrictions are imposed through the impugned code.41

It is humbly submitted before the court that the impugned code restricts media from
interfering in the process of Administration of Justice by restricting them from broadcasting
anything pertaining to the offender of sexual offences until the accused is convicted and all
the appeal remedies are exhausted.42 In the instant matter the purpose behind the rules is to
stop media from influencing the opinion of Courts which in turn hinders the right of a person
to fair trial which includes the presumption of innocence of an accused until proven guilty.

38 Ibid
39 Ibid
40Papnasam Labour Union v. Madura Coats Ltd, AIR 1995 SC 2200
41 Moot Proposition, Para II, P. no. 2
42 Ibid, Para III, P. no. 3

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Every accused is presumed to be innocent unless his guilt is proved. 43 It is a basic principle of
Right of Fair trial. Fair trial means a trial in which bias or prejudice for or against the
accused, the witness or the cause which is being tried, is eliminated.” 44

This process of impacting a person’s reputation by creating a widespread perception of guilt

regardless of any verdict in a court is called Trial by Media, which is sought to be banned
through the rules in the impugned code. Recently, in Manu Sharma v. State (NCT of Delhi),45
the Apex Court has extensively observed about the danger of trial by media. It opined as
under, “There is danger of serious risk of prejudice if the media exercises an unrestricted and
unregulated freedom such that it publishes photographs of the suspects or the accused before
the identification parades are constituted or if the media publishes statements which out
rightly hold the suspect or the accused guilty even before such an order has been passed by
the court.”

The restrictions under the impugned code are reasonable as they restrict media from affecting
the process of fair trial. The Media, is a vital tool of shaping public opinion. The concept of
media trial violates the fundamental right of fair trial of a person. The sanctity and purity of
the process of administration of justice is compromised when media takes the matter into
their hands.

The ever-increasing tendency to use media while the matter is sub-judice has been frowned
down by the courts including the Supreme Court of India on several occasions. In State of
Maharashtra v. Rajendra Jawanmal Gandhi,46 the Supreme Court observed that “There is
procedure established by law governing the conduct of trial of a person accused of an
offence. A trial by press, electronic media or public agitation is very antithesis of rule of law.
It can well lead to miscarriage of justice.”

In the instant matter, the impugned code prohibits the broadcasting of anything pertaining to
the offender of sexual offences until the accused is convicted and all the appeal remedies are
exhausted.47 The impugned code further prevents media from telecasting anything related to
pending matrimonial disputes. These rules are in direct proximity with the objects behind

43 Article 11 (1), Universal Declaration of Human Rights,1948; State of U.P. v. Naresh and Ors. (2001) 4 SCC
324
44 Zahira Habibullah Sheikh and ors v. State of Gujarat and ors (2006) 3 SCC 374 at 395
45 (2010) 2 SCC (Cri) 1385
46 1997 (8) SCC 386.
47 Moot Proposition, Para III, P. no. 3

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them which was to safeguard the image and integrity of judiciary and also to protect the
interests of general public.

It is humbly submitted before the court that, these rules also have a connection with contempt
of court for which reasonable restrictions can be placed on the freedom of speech and
expression under Art. 19 (1)(a). These restrictions are reasonable on the ground of contempt
of court. The Contempt of Courts Act, 1971 defines criminal contempt as the publication of
any matter or act which prejudices or interferes or tends to interfere with the due course of
any judicial proceedings; or interferes or tends to interfere with or obstructs or tends to
obstruct, the administration of justice in any manner.48

The Supreme Court has observed on the question of contempt of court: “we wish to
emphasize that under the cover of freedom of speech and expression no party can be given a
license to misrepresent the proceedings and orders of the courts and deliberately paint an
absolutely wrong and incomplete picture which has the tendency to scandalize the court and
bring it into dispute or ridicule….indeed, freedom of speech and expression is “life blood of
democracy” but this freedom is subject to certain qualification. In offence of scandalizing the
court per se is one such qualification.”49

In the instant matter as well, the impugned code, tries to prevent the interference of media in
administration of justice when the matter is sub-judice.

It is humbly submitted before the court that the underlying idea behind the rules of impugned
code is that authority of courts should be preserved and obstructions to the due administration
of justice must be removed.

Charging the judiciary as “an instrument of oppression”, and the judges as “guided and
dominated by class hatred” “instinctively favoring the rich against the poor” has been held to
constitute contempt of court as these words weaken the authority of law and law courts, and
have the effect of lowering the prestige of judges and courts in the eyes of the people.50

In D.C. Saxena (Dr.) v. Chief Justice of India51 the Supreme Court has held that no one else
has the power to accuse a judge of his misbehavior, partiality or incapacity. The purpose of

48 Section 2, Contempt of Courts Act, 1971

49 Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345,3347
50 E.M.S Namboodiripad v. T.N. Nambiar, AIR 1970 SC 2015:
51 (1996) 5 SCC 216

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such a protection is to ensure independence of judiciary so that the judges could decide cases
without fear or favour as the courts are created constitutionally for the dispensation of justice.

In the instant matter, the impugned code prohibits media from broadcasting anything
pertaining to ‘the functioning of the judiciary and about the judges’ conduct in the court
premises52. The object of the impugned code is to prohibit contempt of court in the interest of
general public and to safeguard the image and integrity of the judiciary which is in direct
proximity and which has a reasonable connection with the impugned code which seeks to
prevent media trials and prohibit negative comments on functioning of the judiciary and
conduct of Judges in the court.

3.1.3 The Impugned code is imposed in Public Interest and meant to Protect
Social Welfare

The rights guaranteed to a citizen by Art.19 do not confer any absolute or unconditional right.
Each right is subject to reasonable restriction which the legislature may impose in public
interest. It is therefore necessary to examine whether such restriction is meant to protect
social welfare satisfying the need of prevailing social values.53

In the instant matter, the rules under the impugned code are meant to protect public welfare as
they protect the Right of a person to fair Trial and also protect the Right to Privacy that is
being violated by media in the instant case.

It is true that our constitution does not expressly declare a right to privacy as fundamental
right, but the said right is an essential ingredient of personal liberty.54 This Right has been
fully incorporated under the umbrella of right to life and personal liberty by the humanistic
expansion of the Article 21 of the Constitution.55

No one shall be subject to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
protection of the law against such interference and attacks.”56A person would be violating the
right to privacy of a person if he publishes anything concerning the privacy of the person
concerned or about his family, marriage, procreation, motherhood, child bearing and

52 Moot Proposition, Para III, P. no. 3

53 Papnasam Labour Union v. Madura Coats Ltd., (1995) 1 SCC 501
54 Kharak Singh v. State of Uttar Pradesh and Others, 1963 AIR 1295
55 Gobind v. State of Madhya Pradesh and Another, (1975) 2 SCC 148
56 Article 12, Universal Declaration of Human Rights,1948

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education among other matters, without his consent - whether truthful or otherwise and
whether laudatory or critical.57

In the instant matter, the impugned code prohibits broadcasting of anything pertaining to
Matrimonial disputes pending in the court. This rule is made for public interest as it protects
the privacy of the parties to matrimonial disputes from any disrepute or defamation by the
media.58

This right to Privacy no longer subsists once a matter becomes a matter of public record. But
an exception could be made for a female who is the victim of a sexual assault, kidnap,
abduction or a similar offence. She should not further be subjected to the indignity of her
name and the incident being publicised in press/media. Such event should not be reported
even if it becomes a matter of public record.59

It was stated in State of Punjab v. Gurmit Singh60, that the identity of rape victims should be
protected not only to save them from public humiliation but also to get the best available
evidence which the victim may not be in a position to provide if she is in public.

In the instant matter the impugned code tries to protect the privacy of those women who are
victims of sexual offences.61 This prohibition protects the public welfare satisfying the needs
of prevailing social values.

It is humbly submitted before the Hon`ble court that the impugned code also restricts
telecasting or broadcasting anything pertaining an active military or para-military operation
conducted either in a war zone, disturbed area or civilian area without prior permission. This
restriction is in the interest of public welfare as it seeks to prohibit freedom of press for the
purpose of security of state.62

In the Mumbai Terror Attacks case63, the live media coverage of the Mumbai terror attacks
was highly criticized by the Hon`ble Supreme Court. The court commented that “An action
tending to violate another person's right to life guaranteed under Article 21 or putting the

57 R. Rajagopal and Another v. State of Tamil Nadu and Others, (1994) 6 SCC 632,
58 Moot Proposition, Para III, P. no. 3
59 Ibid
60 State of Punjab v. Gurmit Singh, (1976) 2 SCC 384
61 Moot Proposition, Para III, P. no. 3
62 Ibid
63 Mohammed Ajmal Mohammad Amir Kasab(Abu Mujahid ) v. State of Maharashtra, (2012 ) 9 SCC 1

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national security in jeopardy can never be justified by taking the plea of freedom of speech
and expression.”

Similarly, in the instant matter, the impugned code prohibits the media from putting the
national security in Jeopardy. A Restriction placed on freedom of speech and expression for
the purpose of security of state is a reasonable restriction.64 This restriction is in the interest of
general public as it seeks to protect the national interest as well as the national security, the
exploitation of which could lead to serious repercussion for the state and public in general as
well.

64 Art. 19(2), The Constitution of India, 1950

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Page no. xii

PRAYER

Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the
Petitioner humbly submit that the Hon’ble Supreme Court of India be pleased to adjudge and
declare that:

a. Rules does not suffer from vires of excessive delegation, hence intra vires the Constitution

b. The rules of the impugned code are neither arbitrary nor unreasonable and do not grant
unguided discretion to authorities, and thus consistent with Article 14.

c. The rules of the impugned code do not violate Freedom of press under article 19(1)(a).

And pass any other relief, that this Hon’ble Supreme Court of India may deem fit and proper
in the interest of justice, equity and good conscience.

Sd. /-

(Counsel for the Respondent)

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