TC- 18

THE SUPREME COURT OF HELIOPOLIS

WRIT PETITION NO 47 of 2023

(Art. 32 of the Constitution of India read with Order XXXVIII, Rule 7, of the Supreme
Court Rules, 2013)

Special Leave Petition No. 3478 of 2023

(Art. 136 of the Constitution of India, 1950 read with Order XXI, Rule 1, of the
Supreme Court Rules, 2013)

IN THE MATTER OF:

Athena Inc. … Petitioner

v.
Television Watchdog … Respondent

Written Submissions on behalf of the Respondents

Counsel for the Respondent.

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

TABLE OF ABBREVIATIONS............................................................................................ 3

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

STATEMENT OF JURISDICTION ...................................................................................... 7

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

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

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

ARGUMENTS ADVANCED ............................................................................................. 12

1. REGULATION 9 OF THE TELEVISION BROADCASTING REGULATIONS,

2008 IS CONSTITUTIONAL ........................................................................................ 12

I. Regulation 9 does not violate Freedom of Speech and Expression under Article
19(1)(a) of the Constitution of Heliopolis

II. Regulation 9 is does not violate freedom of occupation, trade or business under article
19(1)(g) of Contitution of Heliopolis

2. JUDGEMENT OF THE HIGH COURT OF MEMPHIS HOLDING

REGULATION 9 AS UNCONSTITUTIONAL IS CONFINED TO TERRITORIAL
LIMITS OF THE STATE OF MEMPHIS .................................................................. 28

[A] High Court's Decision only binding upon the lower courts within its territorial
limits of jurisdiction .................................................................................................. 28

[B] The Legislative History behind Article 226(2) doesn’t support the idea that the
High court's rulings with respect to the unconstitutionality of a statute extend to other
states .......................................................................................................................... 30

3. TELEVISION WATCHDOG HAS THE POWER TO REGULATE THE

DURATION OF ADVERTISEMENTS IN PUBLIC INTEREST ............................ 32

PRAYER ............................................................................................................................. 35

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 TABLE OF ABBREVIATIONS

Abbreviation Full Form

& And

Art. Article

Anr. Another

Art. Article

Ors. Others

¶/¶¶ Paragraph

S. Section

SLP Special Leave Appeal

v. Versus

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 INDEX OF AUTHORITIES
Statutes

Constitution of Heliopolis , Art. 226 ....................................................................................... 28

Constitution of Heliopolis, Art. 136 .......................................................................................... 7
Constitution of Heliopolis, Art. 19(1)(a) ................................................................................. 12
Constitution of Heliopolis, Art. 19(1)(g) ................................................................................. 12
Constitution of Heliopolis, Art.141 ......................................................................................... 28
Constitution of Heliopolis, Art.19(6) ....................................................................................... 20
Regulation 9 of the Television Broadcasting Regulations, 2008 ............................................. 12
Supra note 54, Sec.36............................................................................................................... 33
Telecom Regulatory Authority Act of India (Amendment), 2000 .......................................... 32
Telecom Regulatory Authority of India Act, 1997 (‘TRAI Act’), Sec. 11(1)(b)(v) .......... 31, 32
Telecom Regulatory Authority of India Act, 1997 (‘TRAI Act’), Sec.2(1)(k) ....................... 32
The Cable Television Networks (Regulation) Act, 1995
The Cable Television Networks Rules, 1994
Standards of quality of service (Duration of advertisement in television channels) Regulations,
2012

Books

J. M. BALKIN, MEDIA FILTERS, THE V-CHIP, AND THE FOUNDATIONS OF BROADCAST

REGULATION, 45 DUKE LAW JOURNAL 1131–1175 (1996), page 1132 ................................ 15
MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW (2013) Page 241 .................................... 16
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8TH EDN. 2012)
H.M. SEERVAI, CONSTITUTIONAL LAW, (4TH EDN.)
DURGA DAS BASU, CONSTITUTIONAL LAW OF INDIA, (8TH EDN. 2011)
M.P. JAIN, INDIAN CONSTITUTION LAW, (8TH EDN. 2013)
V.N. SHUKLA, CONSTITUTION OF INDIA, (13TH EDN. 2016)

Cases

Abdulsattar Yusufbhai Qureshi v. State of Gujarat, (2008) 4 SCC 799 .................................. 22

Akshay N. Patel v. RBI, (2022) 3 SCC 694....................................................................... 24, 27
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106................................................ 18

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Brahmo Samaj Education Society v. State of W.B., (2004) 6 SCC 224 : AIR 2004 SCW 3189
.............................................................................................................................................. 21
BSNL v. Telecom Regulatory Authority of India, (2014) 3 SCC 222 .................................... 33
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ............................................................. 13
Chintamanrao v. State of M.P., 1950 SCC 695, AIR 1951 SC 118 ........................................ 22
De Reuck v. DPP 2004 (1) SA 406 (CC)................................................................................. 13
Election Commission, India v. Saka Venkata Rao, 1953 SCR 114 ......................................... 29
Express Newspaper (P) Ltd. v. Union of India, 1959 SCR 12 ................................................ 18
Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 ................................................... 13
Laxmi Khandsari v. State of UP, (1981) 2 SCC 600; AIR 1981 SC 873 ................................ 26
Lt. Col Khajoor Singh v. Union of India 1961 (2) SCR 82 ............................................. 29, 30
Mahesh Bhatt v. Union of India, (2008) 147 DLT 561 (DB) .................................................. 15
Meenakshi Mills v. Union of India, (1974) 1 SCC 468: AIR 1974 SC 366 ............................ 26
Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353, AIR 2016 SC
2601 ................................................................................................................................ 23, 24
Narendra Kumar v. Union of India, (1960) 2 SCR 375, AIR 1960 SC 430 ............................ 21
Noise Pollution (V), In re, (2005) 5 SCC 733 ................................................................... 16, 17
Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal,
(1995) 2 SCC 161; AIR 1995 SC 1236 ......................................................................... 16, 20
State of Madras v. V.G. Row, (1952) 1 SCC 410.................................................................... 23
State Trading Corpn. of India, Ltd. v. CTO, (1964) 4 SCR 99.......................................... 19, 27
Suresh v. State of T.N., (1997) 1 SCC 319: AIR 1997 SC 1889 ....................................... 18, 19
Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139; AIR 1995 SC 2438
........................................................................................................................................ 14, 15
TV Network Ltd v. Star India Limited, (2006) 2 CompLJ 487 TelecomDSAT ..................... 32
Valentine v. Chrestensen, 316 U.S. 52 (1942) ......................................................................... 14
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 48 L Ed 2d 346 :
425 US 748 (1976) ............................................................................................................... 15

Other Authorities

Ministry of Communications and Information Technology, Department of

Telecommunications, Notification S.O 44(E), January 9, 2004 .......................................... 32
Schrödinger's Constitutional Cat: Limits of the High Court's Declaration of Unconstitutionality
on JSTOR
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Divided Laws in a Unified Nation: Territorial Application of High Court Decisions Abhyudaya
& Prithwijit (ssrn.com)
TRAI’s Quantitative Advertisement Regulation: Ensuring a Quality Viewing Experience or
Regulatory Overreach? – NUJS Law Review

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 STATEMENT OF JURISDICTION
The Respondent humbly submits to the jurisdiction of the Hon'ble Supreme Court of India in
pursuance of Art. 136 of the Constitution of Heliopolis, 1950 read with Order XXI, Rule 1, of
the Supreme Court Rules, 2013 against the judgement of the High court of Memphis.

Art. 136 of the Constitution of Heliopolis reads as follows:

“136. Special leave to appeal by the Supreme Court. -

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory
of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to
the Armed Forces.”1

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN THE
INSTANT CASE.

1
Constitution of Heliopolis, Art. 136.
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 STATEMENT OF FACTS

1.Television Watchdog (hereinafter “Respondent”) is a regulator formed under the Television

Broadcasting Regulations Act, 2006 (hereinafter “Act”).

2.After receiving multiple representations from the public regarding increase in advertisement
in TV channels, Respondent published Television Broadcasting Regulations, 2008 (hereinafter
“regulations”), to regulate TV broadcasting in the country, consisting of Regulation 9
(hereinafter “The Regulation) which mentions “restrictions on duration of advertisements” for
public interest.

3.In 2022, Respondent issued directions to broadcasters to strictly comply with The Regulation.

4.Athena Inc. (hereinafter “Petitioner”), is a news broadcasting company in Heliopolis, filed a

writ petition to declare The Regulation as unconstitutional in the High Court of Memphis.

5.High Court of Memphis ruled in favour of Petitioner (hereinafter “The Judgment”) while
similar petition is pending before High Court of Thinis.

6.After the Judgment, all broadcasters increased the duration of advertisements because of
which Respondent issued Directive No. 1 of 2023 (hereinafter “Directions”) to strictly adhere
to The Regulation in jurisdictions other than state of Memphis citing the reason that the
Judgment does not apply to other jurisdictions.

7.Petitioner has filed a writ petition before Supreme Court of Heliopolis challenging the
validity of directions and Respondent has filed a Special Leave Petition against the Judgment
before the same. Supreme Court has clubbed the cases and is up for final hearing.

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 STATEMENT OF ISSUES

1) Whether Regulation 9 of the Television Broadcasting Regulations, 2008 is

violative of the provisions of the Constitution and is thus, unconstitutional?

2) Whether the judgment of High Court of Memphis holding Regulation 9 as

unconstitutional is confined to the territorial limits of the State of Memphis? Or,
since Regulation 9 is a federal subject, can the judgment be applied throughout
the country of Heliopolis?

3) Whether Telecom Watchdog has the power to regulate duration of

advertisements in the public interest?

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 SUMMARY OF ARGUMENTS

1. Regulation 9 of the television broadcasting regulations, 2008 is Constitutional

The argument presented asserts that the regulation issued by the television watchdog is
constitutional under the provisions of the Constitution of Heliopolis. It argues that the
regulation does not violate the freedom of speech and expression guaranteed under Article
19(1)(a) of the Constitution. Firstly, it highlights that advertisement is a form of commercial
speech, which can be subjected to a higher degree of regulation than noncommercial speech.
Secondly, it emphasizes that broadcast media, unlike the press, uses public airwaves, which are
limited and can be regulated by the state in the interest of the public. Thirdly, it argues that the
regulation aims to prevent indiscriminate advertising and does not permit broadcasters to
subject viewers to excessive commercial content. Lastly, it contends that the restrictions
imposed by the television watchdog are reasonable, proportional, and align with international
standards. Furthermore, it argues that the regulation does not violate the freedom of occupation,
trade, and business guaranteed under Article 19(1)(g) of the Constitution. It states that
Regulation 9 falls within the restrictions allowed under Article 19(6) and is reasonable, in
accordance with criteria established by the Supreme Court. Additionally, it maintains that the
potential loss or lower revenue for individuals engaged in a particular trade or business cannot
justify the regulation being deemed unreasonable. Moreover, it points out that Athena Inc,
being a broadcasting company, cannot claim infringement of rights under Article 19(1)(g) as
corporations are not considered "citizens" under the Constitution, and Article 19 protection is
only available to citizens.

2. Judgment of High Court of Memphis holding Regulation 9 as unconstitutional is

confined to the territorial limits of the State of Memphis

The argument put forth by the Counsel for the respondent contends that the Television
Watchdog has the authority to regulate the duration of advertisements in the public interest.
They refer to Section 11(1)(b)(v) of the TRAI Act, which empowers the Television Watchdog
to establish minimum thresholds for the quality of services provided to consumers and conduct
surveys to protect consumer interests. The counsel argues that the regulation of advertisement
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 duration is closely linked to the quality of consumers' viewing experience, as consumers pay
for channels with the expectation of content rather than excessive advertisements. They further
note that consumers have made representations regarding the increase in advertisements on TV
channels. To address this issue, the Telecom Watchdog has introduced Regulation 9, which
sets a limit of 10 minutes per hour for advertisements on TV channels. The counsel also refers
to amendments made to the TRAI Act in 2000, which brought broadcasting and cable services
within the purview of "telecommunication services" and thus under the jurisdiction of the
TRAI. Cable operators and broadcasters are considered "service providers" and are subject to
regulation by the Television Watchdog. Additionally, the counsel highlights that the TRAI has
the power to issue regulations under Section 36 of the TRAI Act, as long as they are consistent
with the provisions of the Act and the rules framed by the Central Government. They argue
that the Watchdog's regulation on the duration of advertisements falls within the scope of its
power and is not limited by any other provisions of the Act.

3. Telecom Watchdog has the power to regulate duration of advertisements in public

interest

The power of High Courts is limited to the territory over which it exercises jurisdiction and not
across the country. In context of the Indian constitution, the High Courts derive their authority
from the constitution of Heliopolis, specifically Article 226, which grants them the power to
issue writs within the limits of their territorial jurisdiction. While the Supreme Court has the
power of judicial review and its judgments are binding on all courts within the country, there
is no such provision for High Courts. The jurisdiction of the High Court is limited to the
territory it covers, and its interpretations of central statutes do not have a binding effect on other
High Courts. The argument asserts that if the judgments of one High Court were made binding
on others, it would have unintended consequences and go against the intentions of the
constituent assembly. The striking down of a law by a High Court does not have a nationwide
effect due to its limited jurisdiction over certain officials. Allowing the judgments of High
Courts to be applied throughout the country would undermine the supremacy of the Supreme
Court as outlined in Article 141. The insertion of Article 226(2) through the 42nd amendment
was intended to enable High Courts to issue writs beyond their territorial jurisdiction, but it
does not grant one High Court superintendence over another in a different jurisdiction.

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 ARGUMENTS ADVANCED

1. REGULATION 9 OF THE TELEVISION BROADCASTING REGULATIONS,

2008 IS CONSTITUTIONAL2

It is humbly submitted before the honorable court that the regulation issued by the television
watchdog is constitutional under the provisions of the Constitution of Heliopolis as.

• It does not violate freedom of speech and expression prescribed under 19(1)(a) of
Constitution of Heliopolis3 as Firstly, Advertisement is a form of commercial speech,
and commercial speech may be subjected to higher degree of regulation then
noncommercial speech. Secondly, Broadcast media is different from press as it uses
airwaves which is public property and is limited and hence could be regulated by state
at a higher degree in public interest. Thirdly, Mere fact that some forms of commercial
speech are protected by Article 19(1)(a) does not permit the broadcasters to subject
viewers to indiscriminate advertising. Fourthly, the restrictions imposed by the
television watchdog are reasonable, proportional and conform with international
standards.
• It does not violate freedom of occupation, trade and business as prescribed in 19 (1)(g)
of the Constitution of Heliopolis4 as Firstly, Regulation 9 is within the restrictions
provided for in 19(6) and is reasonable also it doesn’t does not violate any of the criteria
that the Supreme Court has established with regards to reasonableness of restrictions.
Secondly, The mere possibility that regulating a certain trade, business, or industry
could result in a loss or lower revenue for individuals who engage in it cannot be used
to justify the Regulation as being unreasonable and Thirdly, Athena Inc being a
Broadcasting Company cannot claim an infringement of rights under Article 19 (1)(g)
as Corporations are not considered as “citizens'' under the Constitution and Art. 19
Protection is Only Available to Citizens thus a corporation cannot claim an
infringement of rights under Article 19 (1)(g).

2
Regulation 9 of the Television Broadcasting Regulations, 2008
3
Constitution of Heliopolis, Art. 19(1)(a)
4
Constitution of Heliopolis, Art. 19(1)(g)
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 I.Regulation 9 is does not violate freedom of speech and expression under Article
19(1)(a) of Constitution Of Heliopolis

The Counsel for the petitioner humbly submits to the Supreme Court that it was a laudable
object which was sought to be achieved by the regulation as Firstly, Commercial speech is not
protected under Article 19(1)(a) of Constitution of Heliopolis.Secondly, Broadcast media is
different from other forms of media. Thirdly, Mere fact that commercial speech is protected by
Article 19(1)(a) does not permit broadcasters to subject viewers to indiscriminate advertising.
Fourthly, the restriction imposed by regulation 9 within the restrictions provided in
Constitution and is reasonable as well as proportional.

[A] Commercial speech is not protected under Article 19(1)(a) of Constitution of Heliopolis

It is a universally recognized principle with regards to freedom of speech and expression that
certain forms of speech get more protection as compared to certain other forms of speech. For
instance the South African Constitutional Court in De Reuck v. DPP, holding that child
pornography amounted to ‘expression of little value which is found on the periphery of the
right and is a form of expression that is not protected as part of the freedom of expression in
many democratic societies.5 The American courts have held that certain forms of speech can
be excluded from the First Amendment protection holding that obscenity, fighting words, and
the like ‘are no essential part of any exposition of ideas, and are of such slight social value as
a step to truth that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality’.6

In 1959, Hamdard Dawakhana v. Union of India7 the Supreme Court was called upon for the
first time to decide whether commercial advertisements were protected under Article 19(1)(a).
The court held that

5
De Reuck v. DPP 2004 (1) SA 406 (CC), para 59
6
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
7
Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671
13 | P a g e
“An advertisement is no doubt a form of speech but…when it takes the form of a commercial
advertisement which has an element of trade or commerce it no longer falls within the concept
of freedom of speech for the object is not propagation of ideas—social, political or economic
or furtherance of literature or human thought; but as in the present case the commendation of
the efficacy, value and importance in treatment of particular diseases by certain drugs and
medicines. In such a case, advertisement is a part of business…and…[has] no relationship with
what may be called the essential concept of the freedom of speech”

The phrase “has no relationship with”, when read with “essential concept of”, raises a
possibility of “relationship” between the type/forms of speech and the essential concept of free
speech (propagation of ideas). This also leads to a conclusion that the level of protection
afforded to a particular instance of speech depends upon its proximity to the essential concept.
Thus, while the Court admitted that advertisements were a ‘form of speech’, it also held that
19(1)(a) was inapplicable to that form. The ‘essential concept of the freedom of speech’, for
the Court, was the propagation of ideas. Commercial advertisements were simply part of a
business’ profit-making drive, and, therefore, unprotected under 19(1)(a).

In the case at hand petitioners challenge the regulation based on violation of freedom of speech
and expression but Advertisements constitute commercial speech which don’t have any
objective apart from increasing sales for the advertiser and the advertisement revenue for
broadcasters.

In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.8 the Supreme Court held that The
Court agreed, and held that while commercial speech was, in general, protected by Article
19(1)(a), ‘deceptive, unfair, misleading and untruthful’ advertisements would be hit by Article
19(2) in doing so court relied upon the fact that Hamdard Dawakhana had relied upon American
jurisprudence9 to exclude commercial advertisements from the scope of 19(1)(a), but that in
the intervening thirty-six years, American law itself had moved on, and now did protect
commercial speech under the First Amendment. The Court also observed that

8
Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139; AIR 1995 SC 2438
9
Valentine v. Chrestensen, 316 U.S. 52 (1942) Justia Law, https://supreme.justia.com/cases/federal/us/316/52/
(last visited May 15, 2023)
14 | P a g e
 “ Advertising is considered to be the cornerstone of our economic system. Low prices for
consumers are dependent upon mass production, mass production is dependent upon volume
sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free
economy in a democratic country, advertising can be viewed as the lifeblood of free media,
paying most of the costs and thus making the media widely available. The newspaper industry
obtains 60%-80% of its revenue from advertising. Advertising pays a large portion of the costs
of supplying the public with newspapers. For a democratic press the advertising ‘subsidy’ is
crucial. Without advertising, the resources available for expenditure on the ‘news’ would
decline, which may lead to an erosion of quality and quantity. The cost of the ‘news’ to the
public would increase, thereby restricting its ‘democratic’ availability.”10

Even after holding that commercial speech is protected under Art 19(1)(a) Tata press doesn’t
give justification to the argument that Regulation 9 Violates Art. 19(1)(a) of the Constitution
as Firstly, the mere fact that commercial speech is protected by Article 19(1)(a) does not permit
broadcasters to subject viewers to indiscriminate advertising. Also, it is pertinent to note that
Under the Regulation of Telecom watchdog the commercial character of advertisements as a
ground for restriction is not in issue. Secondly, as previously stated commercial speech may be
subjected to a higher degree of regulation than non-commercial speech this position has also
been endorsed in US as it was held in Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council11, while recognizing the importance of allowing the free flow of
commercial information, the U.S. Supreme Court added a “common sense” note that
commercial and non-commercial speeches received different degrees of protection. The same
position has been endorsed by the Delhi High Court in Mahesh Bhatt v. Union of India12,
where a public interest test was proposed – the determining factor ought to be the object and
purpose of the advertisement. Advertising with the object restricted to mere promotion of sales
of goods and services, without any social purpose, does not receive the same protection as
social or political speeches. The Court also stated that the decision in Tata Press was made
considering such a public interest requirement, since it concerned the publication of a telephone
directory providing the public access to useful information. The Court opined that the decision
in Hamdard Dawakhana was not overruled by Tata Press, and in fact the underlying principle
of both cases is the promotion of public interest. Therefore, it held that commercial speech is

10
Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139; AIR 1995 SC 2438 Para 20
11
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 48 L Ed 2d 346 : 425 US 748 (1976)
12
Mahesh Bhatt v. Union of India, (2008) 147 DLT 561 (DB)
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entitled to limited protection under Article 19(1)(a) when it is in public interest Thirdly the
decision given by Supreme court in Hamdard Dawakhana was by a Constitutional bench of 5
Judges whereas Tata Press is a 2 Judge bench and it cannot effectively overrule Hamdard
Dawakhana.

[B] Broadcast media is different from other forms of media

Broadcasting media have always been subject to a higher degree of regulation, in comparison
to print media13 this is because broadcasting runs on airwaves and airwaves are public property
added to that airwaves are also scarce. Airwaves are held to be public property in India14
consecutively broadcasters can’t own airwaves and the state issues licenses to them for
effective use of airwaves. Television and other electronic media have a stronger impact on the
audience because they appeal to viewers through both voice and video. They also serve as a
potent communication tool because they are common and easily accessible.

In Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal15
it was held that the Despite being covered by Article 19(1)(a) with regards to its freedom of
speech and expression , the broadcasting media cannot be compared to other forms of
communication. While print media such as newspapers and magazines may be permitted to
operate in a free market mechanism, broadcast media cannot be allowed to do the same.16

In the present case Television watchdog has powers to make regulations to ensure quality of
broadcast and in exercise of those powers it has enacted Regulation 9 to improve the quality of
the viewing experience.

[C] Mere fact that commercial speech is protected by Article 19(1)(a) does not permit
broadcasters to subject viewers to indiscriminate advertising.

13
J. M. BALKIN, MEDIA FILTERS, THE V-CHIP, AND THE FOUNDATIONS OF BROADCAST REGULATION, 45 DUKE
LAW JOURNAL 1131–1175 (1996), page 1132
14
Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161;
AIR 1995 SC 1236
15
ibid
16
MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW (2013) Page 241
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The Counsel for the petitioner humbly submits to the Supreme Court That even if commercial
speech were to be protected under Art. 19(1)(a) of constitution of Heliopolis then also it does
not give the right to the broadcasters to subject the viewers to indiscriminate advertising,
something which they are may or may not be willing of. Television viewers who wish to watch
fewer advertisements can make their voice heard through the Television watchdog and in the
present case they have done so by making multiple representations to the television watchdog.
Television watchdog, being the regulatory authority, has the power to regulate the broadcast
media, and it has done so via regulation 9.

It was held in Re: Noise Pollution17 that while one has a right to speech, others have a right to
listen or decline to listen. Nobody can be compelled to listen, and nobody can claim that he has
a right to make his voice trespass into the ears or mind of others.

“Those who make noise often take shelter behind Article 19(1)(a) pleading freedom of speech
and right to expression. Undoubtedly, freedom of speech and the right to expression are
fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to
create noise by amplifying the sound of his speech with the help of loudspeakers. While one
has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled
to listen, and nobody can claim that he has a right to make his voice trespass into the ears or
mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of
speech and that too with the assistance of artificial devices so as to compulsorily expose
unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person
speaking is violating the right of others to a peaceful, comfortable and pollution-free life
guaranteed by Article 21. Article 19 cannot be pressed into service for defeating the
fundamental right guaranteed by Article 21.”18

Advertisements are broadcast in between content feeds to generate income and profit. Whether
the viewer wants them or not, these advertisements are displayed. Hence the broadcasters can’t
say that they have a right to subject viewers to indiscriminate advertising under the garb of Art.
19(1)(a). The viewers avail themselves of the services of broadcasters to watch content not to
watch advertisement and hence they can't be subjected to indiscriminate advertising.

17
Noise Pollution (V), In re, (2005) 5 SCC 733
18
ibid, Para 11
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[D] The restriction imposed by regulation 9 within the restrictions provided in Constitution
and is reasonable as well as proportional

(a) It is within the restrictions provided for in constitution and precedents

It is humbly submitted before the Hon’ble Court that regulation 9 does not violate the freedom
of speech and expression as here in the present case the right concerns the media and hence it
must be read with freedom of occupation, trade, or business. Both freedoms, although
prescribed in the same article, have different grounds for Restrictions which can be imposed
upon them by the state. Article 19(1)(a) i.e., freedom of speech and expression can be restricted
on the grounds prescribed in Art.19(2) which are sovereignty and integrity of Heliopolis, the
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 offense. Whereas Article
19(1)(g) i.e., freedom to carry on a business can be restricted in the interests of the general
public as prescribed in 19(6). It is submitted that when rights of free speech are intertwined
with right to carry on trade or business (i.e., a Article 19(1)(g) issue) the right to free speech
undergoes a sea change and can be regulated on grounds other than mentioned in Article 19(2).

In Suresh v. State of Tamil Nadu19, the Supreme Court held that “…where the freedom of
speech gets intertwined with business it undergoes a fundamental change and it's exercise has
to be balanced against societal interest….”20 in the present case Telecom watchdog has issued
the Regulation on receiving multiple representations by public and as a regulator its duty bound
to introduce such regulations in public interest.

The Supreme Court stated in Express Newspaper (P) Ltd. v. Union of India21 that the State
cannot restrict Freedom of trade and business “by directly and immediately curtailing” the
freedom of speech because Art. 19 does not establish a hierarchy of rights. As a result, it was
determined that the contested statute directly infringed the newspaper's right to free expression
by restricting its ability to publish however many pages it saw fit. This ruling doesn’t apply in
this case as the purpose of the regulation is to regulate the timing of advertisements in the

19
Suresh v. State of T.N., (1997) 1 SCC 319: AIR 1997 SC 1889
20
ibid
21
Express Newspaper (P) Ltd. v. Union of India, 1959 SCR 12
18 | P a g e
interests of the consumers who suffer due to indiscriminate advertising. This does not amount
to preferring the freedom of trade over freedom of speech

In Bennett Coleman & Co. v. Union of India22 the Supreme court propounded the Direct effect
test and held that the test for determining the question, whether legislation or executive action
infringes the fundamental rights, is to examine its effects and not its object or subject matter.
The Supreme Court in this case struck down the Control Order because it would have a direct
effect of restricting circulation and preventing the setting up of new newspapers. In the present
case the direct effect of the regulation is to ensure channels abide by the restriction of 10
minutes of advertisements per hour and if there is any impact on the freedom of speech and
expression under Article 19(1)(a), it is indirect or remote and hence it won’t amount to
infringement the fundamental rights of freedom and expression. Also, the said regulation
doesn't prohibit any other type of advertisements so there won't be any revenue concussions as
such.

In Telecom Watchdog v. Union of India, a similar situation arose where TRAI regulations
sought to limit the number of Short Message Services (SMSs) a person might send each day to
stop Unrestricted Unsolicited Commercial Communications (UCC) by telemarketers was
contested. The Delhi High Court relied on Suresh v. State of Tamil Nadu23 where the Supreme
Court held that “…where the freedom of speech gets intertwined with business it undergoes a
fundamental change and it's exercise has to be balanced against societal interest….” and held
that the imposition of a limit on the number of SMSs per day was justified.

(b) Restriction imposed by regulation 9 is reasonable and proportional

The issue as regards to proportionality and reasonability of the said Restrictions has been dealt
with in the latter part of this memorial where we’ve discussed as to why the regulation 9 doesn’t
violate freedom of occupation, trade or business under Art. 19(1)(g) of Constitution of
Heliopolis.

[E] Athena Inc being a Incorporated Broadcasting Company cannot claim an

infringement of rights under Article 19 (1)(g) as Corporations are not considered as
“citizens''

22
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106
23
Suresh v. State of T.N., (1997) 1 SCC 319: AIR 1997 SC 1889
19 | P a g e
It is humbly submitted to the court that Athena Inc Being an incorporated company can't
enforce the fundamental right of trade and commerce provided for in Art. 19(1)(a) of
Constitution of Heliopolis.

According to the Constitution of Heliopolis, only the citizens of the nation, and not businesses,
are entitled to certain fundamental rights available under Art. 19. Since Athena Inc. is an
incorporated broadcasting corporation with its registered office in Memphis24, the company
will not be entitled to the protections provided by Article 19(1)(a) of the Constitution about
freedom of trade and commerce and freedom of expression.

It was held by a 9-judge bench of Hon'ble. Supreme court in State Trading Corporation of
India, Ltd. v. CTO25 that corporations are not citizens and hence they cannot come with a writ
petition under Art.32 to enforce their fundamental rights available under Article 19. The court
stated that under Art. 19 clauses (a) to (e) are only applicable to citizens whereas clauses (f)
and (g) can be enjoyed by natural and juristic persons/identities.

The right to move the Supreme Court by way of Article 32 is a fundamental right available to
all persons but under the Constitution ‘all citizens’ are persons but ‘all persons’ are not citizens.
An incorporated Company has a separate existence, and the law recognizes it as a legal person
separate and distinct from its members and hence It cannot enforce Fundamental rights as it's
not a citizen. Hence Athena Inc can’t enforce rights which it does not have.

[F] Airwaves constitute public property and must be utilized for advancing public good and
petitioner has no inherent right to free speech using public property

In Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal26 it was
held by the hon’ble Supreme Court that

“…(b) Airwaves constitute public property and must be utilized for advancing public good.
No individual has a right to utilize them at his choice and pleasure and for purposes of his
choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not
include the right to use airwaves, which are public property. ……”27

24
Facts-on Record, Paragraph 5
25
State Trading Corpn. of India, Ltd. v. CTO, (1964) 4 SCR 99
26
Supra note 14
27
ibid, Para 201(1)(b)
20 | P a g e
Hence in the present case the petitioner has no inherent right to free speech using public
property (i.e. airwaves) which can be controlled and regulated by a public authority (i.e.
TRAI/Telecom Watchdog) for larger societal interests and also interests of other users (i.e.
viewers of advertisement) of the same medium of airwaves, as per the ratio of the aforesaid
judgment of Cricket Association of Bengal judgment

II. Regulation 9 is does not violate freedom of occupation, trade or business under
article 19(1)(g) of Contitution of Heliopolis

It is humbly submitted before the Honorable Supreme Court that Regulation 9 isn’t Violative
of Freedom of occupation, trade or business as Firstly, Regulation 9 is within the restrictions
provided for in Art. 19(6)28 and is reasonable also it doesn’t does not violate any of the criteria
that the Supreme Court has established with regards to reasonableness of restrictions.[A]
Secondly, that a mere possibility that regulating a certain trade, business, or industry could
result in a loss or lower revenue for individuals who engage in it cannot be used to justify the
Regulation as being unreasonable.[B] Thirdly, Athena Inc being an incorporated Broadcasting
Company cannot claim an infringement of rights under Article 19 (1)(g) as Corporations are
not considered as “citizens'' under the Constitution and Art. 19. Protection under Art.19(1)(g)
is only Available to Citizens thus a corporation cannot claim an infringement of rights under
Article 19 (1)(g). [C]

[A]Regulation 9 is within the restrictions provided for in 19(6) and it doesn’t does not
violate any of the criteria that the Supreme Court has established with regards to
reasonableness of restrictions.

The Counsel of Respondents humbly submits that Regulation 9 Comes within the ambit of
restrictions ascribed in Art. 19(6). Television Watchdog received multiple representations29
from the public regarding the increase in advertisement in TV channels and hence the watchdog
issued the regulation. The watchdog issued these regulations in the interests of the general
public. Regulation 9 also firstly is Reasonable as its object is clear and the regulation is a clear,
unambiguous, and minimal measure to secure the public interest (a), Secondly, its proportional

28
Constitution of Heliopolis, Art.19(6)
29
Facts-on-record, Paragraph 8
21 | P a g e
as the regulation is the least restrictive method that strikes balance between the right infringed
and the limitation imposed(b).

(a). Reasonableness

Under Article 19(1)(g) every citizen of India has the right to “practice any profession or to
carry on any occupation, trade or business”. This right is not absolute, and the state can impose
reasonable restrictions “in the interest of general public". The expression in the interest of the
general public is of wide import, comprehending public order, public health, public security,
morals, economic welfare of the community, and the objects mentioned in Part IV of the
Constitution30.

In Narendra Kumar vs UOI,31 Supreme Court ruled that reasonableness of a restriction has to
be considered in background of the facts and circumstances under which the order was made,
taking into account the nature of evil that was thought to be remedied by such law, the ratio of
the harm caused to individual citizens by the proposed remedy to the beneficial effect
reasonably expected to result to the general public, and whether the restraint caused by law was
more than what was necessary in the interests of general public.

In Chintaman Rao vs State of MP,32 The prohibition was held to be unreasonable because it
was in excess of the object in view and that it was drastic in nature. The Court laid down a test
of reasonable restriction as follows; the phrase reasonable restriction connotes that the
limitation imposed on a person and enjoyment of rights should not be arbitrary or of excessive
nature beyond what is required in the interest of the public the courts is entitled to consider the
proportionality of these restrictions. The word reasonable implies intelligent care and
deliberation. Legislations which arbitrary or excessively invade the right cannot be said to
contain the quality of reasonableness and unless it strikes a proper balance between freedom
guaranteed under Article 19 (1)(g) and the social control permitted by Art. 19(6).

30
Brahmo Samaj Education Society v. State of W.B., (2004) 6 SCC 224 : AIR 2004 SCW 3189
31
Narendra Kumar v. Union of India, (1960) 2 SCR 375, AIR 1960 SC 430
32
Chintamanrao v. State of M.P., 1950 SCC 695, AIR 1951 SC 118
22 | P a g e
In Abdulsattar Yusufbhai v. State of Gujarat33, it was held that in order to be reasonable, the
regulation must strike a balance between the freedom given by Article 19(1)(g) and the social
control allowed by Article 19(6).

The Counsel for Respondents Humbly submits that Testing the Regulation 9 issued by the
Television Watchdog we find the regulation to be reasonable as

• Firstly, the object sought to be achieved by the television watchdog is to protect

consumer interests by raising the Quality of the broadcasters' services. There was a need
to bring in a regulation as there were multiple representations34 made to the telecom
watchdog regarding the increase of advertisements in the broadcasts.
• Secondly, the Regulation Only imposes a clear, Non-Arbitrary, Unambiguous, mild
restriction of ten minutes per hour, a figure equal to 16.66% of viewing time, which is
a reasonable criterion given that the goal of the regulation is to safeguard customers'
interests.
• Thirdly, the Regulation is proportional {Dealt with in [B](b)}
• Fourthly, the regulation achieves a balance between the freedom guaranteed under
Article 19(1)(g) and the social control permitted by Article 19(6), as the freedom to
trade and business doesn't mean that broadcasters will subject viewers to
indiscriminate advertising and to curb this evil a restriction in form of the regulation is
bought.

(b). Proportionality

The Counsel humbly submits that Regulation 9 does not violate Article 19 (1)(g) of the
Constitution as it imposes limitations on Right of Occupation trade or business under Art.
19(1)(g) of Constitution of Heliopolis which are proportional to the aim that Television
Watchdog seeks to achieve.

Proportionality, at the fundamental level, is the commonsense idea that any state action should
choose such means which are well-suited to the ends it is pursuing. To put it plainly in an

33
Abdulsattar Yusufbhai Qureshi v. State of Gujarat, (2008) 4 SCC 799
34
Paragraph 8, Facts-on-record
23 | P a g e
analogical way “The Panacea should not be worse than the disease itself" or “You cant use
cannons to kill sparrows”. The principle of proportionality as a standard of review has been
adopted universally by multiple countries in their jurisprudence.

In State of Madras vs V.G. Row35, the Supreme Court held that a “reasonable restriction” under
Articles 19(2) to (6) would have to satisfy the requirements of proportionality. The Court
Opined That “the nature of the right alleged to have been infringed, the underlying purpose of
the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time, should all enter into the
judicial verdict.”36 Thus, the Court must do a proportional Analysis of the
limitation/Restriction sought to be Imposed on Exercise of a Fundamental Right and that there
is a nexus between the Restriction and its object.

In Modern Dental College & Research Centre v. State of M.P.37 5-judge bench of the Supreme
Court brought the proportionality test to analyze the limitations Imposed on freedoms under
Art. 19 it was held in the case that a limitation of a constitutional right will be constitutionally
permissible if: "it is designated for a proper purpose; the measures undertaken to effectuate
such a limitation are rationally connected to the fulfillment of that purpose; the measures
undertaken are necessary in that there are no alternative measures that may similarly achieve
that same purpose with a lesser degree of limitation; and finally there needs to be a proper
relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving
the proper purpose and the social importance of preventing the limitation on the constitutional
right.”38

It was also held that in a market or liberal economy, i.e. one governed by market forces and
where prices of goods and services are set by a free price system determined by supply and
demand, reasonable restrictions on the right to freedom of business, trade, profession, or
occupation are permitted when done so in the interest of the general public.39

The Four-Pronged Proportionality test Laid Down in Modern Dental College & Research
Centre v. State of M.P, has been affirmed by the Court in many other Cases. Particularly in

35
State of Madras v. V.G. Row, (1952) 1 SCC 410
36
ibid
37
Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353, AIR 2016 SC 2601
38
ibid , Paragraph 60
39
ibid
24 | P a g e
Akshay N. Patel v. RBI40 it was held that the judicial evolution of a four-pronged analysis of
proportionality displaces the varying standards that were prescribed to determine
“reasonableness” under Article 19(6)41. In this case again it was held that in order to identify
when fundamental rights have been violated or not a four-pronged test of proportionality was
laid down or rather say affirmed. The Four prongs of proportionality were

• A measure restricting a right must have a legitimate goal (legitimate goal stage);
• It must be a suitable means of furthering this goal (suitability or rational connection
stage);
• There must not be any less restrictive but equally effective alternative (necessity stage);
and
• The measure must not have a disproportionate impact on the right holder (balancing
stage)

It is Humbly submitted before the Hon’ble court that Regulation 9 issued by the Television
watchdog Satisfies the four-prong test as laid down by the court in various cases as.

• Firstly, there was a need for regulation as there were multiple representations from the
public regarding the increase in advertisements and TV channels. The television
watchdog, being the regulatory body under S. 11(1)(b)(v) of the TRAI Act has to
discharge the functions of ensuring the Quality of service and laying down standards of
service. Television watchdog while discharging those functions Bought these
regulations in interest of the consumers as the quality of Content on Television was
detrimentally affected due to excessive advertisements. So it can be said that there was
a legitimate goal that the television watchdog seeks to achieve by bringing these
regulations.
• Secondly, the regulation imposes a limit of 10 minutes42 of advertisements per hour.
Which effectively means that broadcasters are allowed to show advertisements ⅙ Of
an Hour. This would Reasonably uplift the quality of the services that are provided by
broadcasters to the consumers. Hence it can be said that it was a rational step on behalf
of the television watchdog to impose a limitation of the duration of advertisements per
hour.

40
Akshay N. Patel v. RBI, (2022) 3 SCC 694
41
ibid, Para 17 and 21 to 31
42
Facts-on-record, Paragraph 4
25 | P a g e
 • Thirdly, there is no alternative to Regulation 9 as broadcasters have a tendency
whereby, they attempt to lengthen commercial breaks by having more advertisements
to maximize revenue. Thus, a limitation is to the length of advertisements per hour was
the need of the hour to ensure the quality of service so provided. Regulation 9 provides
that the broadcasters can show 10 minutes of advertisement per hour, which is more
than a reasonable number of advertisements to keep the quality of the broadcast intact.
• Fourthly, the regulation does not have any disproportionate effect on the rights of the
Broadcasters as the regulation does not prohibit or limit any other forms of
advertisement that can be done by them such as overlaying of advertisement on the
screen. Also, if the broadcasters want to earn more revenue, they can rely on other
sources of revenue, such as subscription fees. Advertisements are broadcast in between
content feeds to generate income and profit. Whether the viewer wants them or not,
these advertisements are displayed. The Regulation achieves the balancing act by
placing a reasonable cap on the quantity of advertisements. Regulation 9 provides for a
reasonable limit on the duration of the advertisements which seeks to establish
standards for the quality of service provided by the broadcasters.

[B] The mere possibility that regulating a certain trade, business, or industry could result
in a loss or lower revenue for individuals who engage in it cannot be used to justify the
Regulation as being unreasonable

The major contention of the petitioners with regards to unreasonableness of the said restrictions
imposed by Regulation 9 is that it causes them loss in revenue which might put their survival
in question as they are largely dependent upon the advertisements for their revenues. It is
humbly submitted before the honorable Court that there are other ways to earn revenues as well
such as charging a price for the subscription of the TV channels. The regulation has been
bought by the television watchdog in public interest to ensure the quality of service that is
provided by the broadcasters to the consumer

It is humbly submitted before the honorable Supreme Court that the mere fact that a
restriction imposed on Art.19(1)(g) which might possibly lead to loss or lower the revenues

26 | P a g e
for persons or corporations who engage in a certain trade, business or industry won’t render
the statute or regulation unreasonable.

The same has been held by a 5 judge bench of the honorable Supreme Court in Shree Meenakshi
Mills Ltd. v. Union of India43 In para 66 the Court goes on to say that “In determining the
reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it
has to be remembered that the mere fact that some of those who are engaged in these are
alleging loss after the imposition of law will not render the law unreasonable. By its very nature,
industry or trade or commerce goes through periods of prosperity and adversity on account of
economic and sometimes social and political factors.” The same has been affirmed by the
supreme court in. Laxmi Khandsari v. State of U.P44 by a 2 Judge bench

[C] Athena Inc being a Incorporated Broadcasting Company cannot claim an

infringement of rights under Article 19 (1)(g) as Corporations are not considered as
“citizens''

It is humbly submitted to the court that Athena Inc Being an incorporated company can't
enforce the fundamental right of trade and commerce provided for in Art. 19(1)(g)45 of
Constitution of Heliopolis.

According to the Constitution of Heliopolis, only the citizens of the nation, and not businesses,
are entitled to certain fundamental rights available Under Article 19. Since Athena Inc. is an
Incorporated broadcasting corporation with its registered office in Memphis46, the company
will not be entitled to the protections provided by Article 19(1)(g) of the Constitution about
freedom of trade and commerce and freedom of expression.

It was held by a 9-judge bench of Hon'ble. Supreme court in State Trading Corporation of
India, Ltd. v. CTO47 that corporations are not citizens and hence they cannot come with a writ
petition under Art.32 to enforce their fundamental rights available under Article 19. The court
stated that under Art. 19 clauses (a) to (e) are only applicable to citizens whereas clauses (f)

43
Meenakshi Mills v. Union of India, (1974) 1 SCC 468: AIR 1974 SC 366
44
Laxmi Khandsari v. State of UP, (1981) 2 SCC 600; AIR 1981 SC 873
46
Facts-on-record, Paragraph 5
47
Supra note 25,
27 | P a g e
and (g) can be enjoyed by natural and juristic persons/identities. The same was affirmed in
Akshay N. Patel v. RBI 48 in 2022 by a 3-judge bench.

The right to move the Supreme Court by way of Article 32 is a fundamental right available to
all persons but under the Constitution ‘all citizens’ are persons but ‘all persons’ are not citizens.
An incorporated Company has a separate existence, and the law recognizes it as a legal person
separate and distinct from its members and hence It cannot enforce Fundamental rights as it's
not a citizen. Hence Athena Inc can’t enforce rights which it does not have.

2. JUDGEMENT OF HIGH COURT OF MEMPHIS HOLDING REGULATION 9 AS

UNCONSTITUTIONAL IS CONFINED TO TERRITORIAL LIMITS OF STATE OF
MEMPHIS

The Counsel for the respondents Humbly submits that the Judgement of the high court of
memphis holding Regulation 9 as unconstitutional is confined to the territorial limits of state
of memphis as Firstly, High Court's Decision only binding upon the lower courts within its
territorial limits of jurisdiction.[A] Secondly, The Legislative History behind Article 226(2)
doesn’t support the Idea that High court's rulings with respect to unconstitutionality of a statute
extends to other states[B]

[A] High Court's Decision only binding upon the lower courts within its territorial limits of
jurisdiction

The High Courts are the constitutional authority which derives its authority from the
constitution of Heliopolis. Article 226 of the constitution gives the high courts the power to
issue writs. However, such power is confined to the limits of the territory over which the High
Court exercises its jurisdiction49.

The power of judicial review is available to the High Courts as well as the Supreme Court and
is the very soul of the constitution. Article 14150 of the constitution makes the judgements
and/or precedents of the supreme court binding on all courts within the territory of the country.

48
Supra note 40,
49
Constitution of Heliopolis , Art. 226
50
Constitution of Heliopolis, Art.141
28 | P a g e
However, no such provision is enacted with respect to High courts in the constitution which
gives a clear insight to the intent of constituent assembly that they did not wish that the High
Court's decisions shall be binding throughout the territory of Heliopolis instead the decisions
so passed by the High courts will only be binding on the lower courts within the territorial
limits of the High Court's Jurisdiction.

The Constitution has been explicit and has clearly stated that the jurisdiction of the High Court
is limited over the territory which it exercises its jurisdiction. It is to be noted that Article 226
specifically grants the jurisdiction of High Court only over the territory over which it is
supposed to exercise jurisdiction. To establish the logic behind it, the following argument must
be forwarded. The reason the High Court’s interpretation of a central statute would not be
binding on the courts in the rest of the country is that they fall outside the High Court’s
jurisdiction, though the law being interpreted has effects throughout the territory of Heliopolis.
If the judgements of one high court are made binding on other high courts, the effects arising
out of such phenomenon will have an effect which wasn’t warranted by the constituent
assembly. For Example, the Contract Act being a central statute is interpreted by High Courts
in different ways at different occasions, but the decision of one High Court does not possess a
binding value over other High Courts even though on both the occasions, the High Court is
accessed through the passages of article 226. The respondent submits that the principles that
limit jurisdiction of the High Court in the case of interpretation of a central statute also limits
its jurisdiction in the case of declaration of its unconstitutionality. The striking down of a law
amounts to the promulgation of a new norm calling upon the officials to not act upon the law
which is being struck down. The recipients of this rule are the legal officials. Since the High
Court has jurisdiction over some officials and no jurisdiction over others. It is inevitable that
the High Court's declaration of unconstitutionality would not have an effect throughout the
country. By allowing the judgment of a high court to be applied throughout the territory of
India, the purpose of article 141 will not be fulfilled. Article 141 gives the supreme court its
supreme footing in the judiciary. It essentially puts other courts under its shadow. The
constitution does not have such parallel provisions for the high courts. Such interpretations are
there because the impugned law falls under the subject matter of center, the judgment of a high
court shall have effect all over the country essentially creates a supreme court in every state
indirectly which is against the principles of the constitution.

29 | P a g e
It is Humbly submitted before the Honorable Court that the principles that limit the High
Court's jurisdiction in the case of the interpretation of a central statute also limit its jurisdiction
in the case of a declaration of unconstitutionality and hence The order passed by the High court
of memphis that Regulation 9 is Uncuonstitutional will only be applicable in within the
Territorial limits of the state of Memphis.

[B] The Legislative History behind Article 226(2) doesn’t support the Idea that High
court's rulings with respect to unconstitutionality of a statute extends to other states

The original article 226 as drafted by the Constituent assembly was what now consists of
Clause (1) of article 226. The original article 226 did not contain anything along the lines of
clause (2) of article 226.

The Supreme Court was presented with the opportunity to interpret the original unamended
article 226 for the first time in Election Commission India vs Saka Venkat Rao51 where it held
that the power of High Court to issue rates and article 226 of the constitution was subject to
twofold limitations firstly, that such writs cannot extend beyond the territories subject to its
jurisdictions and secondly, that the person or the authority to whom the High Court is
empowered to issue writs must be amenable to the jurisdiction of the High Court either by
residence or location within the territories subject to its jurisdiction

The same issue came for consideration before the Supreme Court again in Lt. Colonel Khajoor
Singh vs Union of India52 with the majority of the constitution bench of the Supreme Court
affirmed Saka Venkat Rao. Hon’ble Justice Subba Rao give a dissenting judgment and said
that if we were to go by the judgment of Saka Venkat Rao article 226 as interpreted in Saka
Venkat Rao would lead to a position where litigants would face difficulties if they were to seek
reliefs against the union government.he noted in his dissenting judgement that

“If the contention of the respondents be accepted, whenever the Union Government infringes
the right of a person in any remote part of the country, he must come all the way to New Delhi
to enforce his right by filing a writ petition in the Circuit Bench of the Punjab High Court. If a
common man residing in Kanyakumari, the southern-most part of India, his illegally detained

51
Election Commission, India v. Saka Venkata Rao, 1953 SCR 114
52
Lt. Col Khajoor Singh v. Union of India 1961 (2) SCR 82
30 | P a g e
in prison, or deprived of his property otherwise than by law, by an order of the Union
Government, it would be a travesty of fundamental rights to expect him to come to New Delhi
to seek the protection of the High Court of Punjab. This construction of the provisions of Article
226 would attribute to the framers of the Constitution an intention to confer the right on a
person and to withhold from him for all practical purposes the remedy to enforce his right
against the Union Government. Obviously it could not have been the intention of the
Constituent Assembly to bring about such an anomalous result in respect of what they
conceived to be a cherished right conferred upon the citizens of this country. In
that event, the right conferred turns out to be an empty one and the object of the framers of the
Constitution is literally defeated.”53

To remedy the practical difficulties which were discussed by Subba Rao J. in his dissenting
opinion – the 15th Constitutional Amendment Act 1963 was introduced what now appears as
clause (2) of article 226 is what was bought in by the 15th amendment.

The Statements of Objects and Reasons of the Constitution (Fifteenth Act) 1963 state:
“Under the existing Article 226 of the Constitution, the only High Courts which has jurisdiction
with respect to the Central Government is the Punjab High Court. This involves considerable
hardship to litigants from distant places. It is, therefore, proposed to amend article 226 so that
when any relief is sought against any Government, authority person for any action taken, the
High Court within whose jurisdiction the cause of action arise may also have jurisdiction to
issue appropriate directions, orders or writs”

It is clear from the Statements of Objects and Reasons of the 15th amendment that the original
purpose of Article 226(2) was to curb the hardships of litigants who sought to bring action
against the Union Government.

On these footings if we examine Article 226 and ask, what about the declaration of
unconstitutionality by the High Court? The answer to this question is to be found in Article
226. The answer which emerges from a combined reading of both the relevant clauses of Article
226 is that the High Court has jurisdiction over officials:

a) who are within the territorial limits of the state it is High Court of;

53
ibid
31 | P a g e
b) whose actions give rise to a cause of action within the territorial limits of the state it is
High Court of even if they are ordinarily functioning outside the territorial limits of the state.

This gives the High Court jurisdiction over all officials of the state government (of the state it
is the High Court of) and officials of the central government who are situated in the territorial
limits of the High Court, even on officials located outside (whether of the union government
or another state government) provided their actions have the effect of giving rise to a cause of
action within the territorial limits of state it is High Court of. Applying these principles, we
are able to test the effect of the declaration of unconstitutionality by the High Court. The
declaration of unconstitutionality of a statute by the High Court is binding on all state
government officials of the state it is High Court of. It is also binding on officials belonging
to the union government who seek to enforce the statute so as to give rise to a cause of action
within the territorial limits of the state it is High Court of.

It is Humbly submitted before the Honorable Court that Legislative History behind Article
226(2) Clearly doesn’t support the idea that the declaration of Unconstitutionality by a High
court will be operational throughout the Country. Thus, the order passed by the High court of
Memphis that Regulation 9 is Unconstitutional will only be applicable in within the
Territorial limits of the state of Memphis.

3. TELEVISION WATCHDOG HAS THE POWER TO REGULATE DURATION OF

ADVERTISEMENTS IN PUBLIC INTEREST

The Counsel for the respondent humbly submits that Television watchdog has the power to
regulate duration of advertisements in public interest as under Section 11(1)(b)(v)54 TRAI Act
empowers the Television Watchdog to lay down minimum thresholds for the quality of services
to be provided to consumers. Section 11(1)(b)(v) of the TRAI Act provides that Television
Watchdog must discharge the function of “laying down the standards of quality of service to
be provided by the service providers and ensure the quality of service and conduct the
periodical survey of such service provided by the service providers so as to protect interest of
the consumers of telecommunication service”55.

54
Telecom Regulatory Authority of India Act, 1997 (‘TRAI Act’), Sec. 11(1)(b)(v)
55
ibid
32 | P a g e
In the present case the duration of advertisements is being regulated, which is closely linked to
the quality of consumers’ viewing experience as Consumers pay a subscription fee for channels
in expectation of content feeds and not advertisements and consumers have no option of
skipping advertisements. In addition to that Consumers have made multiple representations56
to the telecom watchdog regarding the Increase in advertisements in TV channels. To remedy
this epidemic of advertisements Telecom watchdog has come up with Regulation 9 which
provides for a limit of 10 minutes per hour on TV channels57.

Section 2(1)(k)58 of the TRAI Act defines “telecommunication service” as “service of any
description (including electronic mail, voice mail, data services, audio tex services, video tex
services, radio paging and cellular mobile telephone services) which is made available to users
by means of any transmission or reception of signs, signals, writing, images and sounds or
intelligence of any nature, by wire, radio, visual or other electromagnetic means but shall not
include broadcasting services” It is clear that broadcasting was not covered under
telecommunication service originally but In 200059, the Parliament amended the Act and added
the proviso that “Provided that the Central Government may notify other service to be
telecommunication service including broadcasting services.” After this amendment in 2004 the
Central Government, using Section 2(1)(k)’s proviso issued a notification60 bringing
broadcasting and cable services within the purview of “telecommunication services” and so
under the jurisdiction of the TRAI i.e. television watchdog. Because of these amendments and
notification cable operators can now be termed as “service providers” under Section 2(1)(j) of
the TRAI Act. TDSAT has has also held the same that all intermediaries in the provision of a
61
broadcast to a consumer would amount to service providers In the present case the
broadcasters/Cable Operators would come within the ambit of “service providers” and hence
they will be subject to regulation by the Television Watchdog.

The Television watchdog Under Section 3662 of the TRAI Act is empowered to notify
regulations which are consistent both with the TRAI Act, as well as rules made by the Central
Government to effectively carry out the purposes of the Act. It was held in BSNL v. Telecom

56
Facts-on-record, Paragraph 8
57
Facts-on-record, Paragraph 4
58
Supra note 54 (‘TRAI Act’), Sec.2(1)(k)
59
Telecom Regulatory Authority Act of India (Amendment), 2000
60
Ministry of Communications and Information Technology, Department of Telecommunications, Notification
S.O 44(E), January 9, 2004.
61
TV Network Ltd v. Star India Limited, (2006) 2 CompLJ 487 TelecomDSAT
62
Supra note 54, Sec.36
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Regulatory Authority of India63 that Power vested in TRAI under Section 36(1) to make
regulations is wide and pervasive. Exercise of this power is only subject to the provisions of
the TRAI Act, 1997 and the rules framed under Section 35. There is no other limitation on the
exercise of power by TRAI under Section 36(1). It is not controlled or limited by Section 36(2).

In the present case Telecom Watchdog has passed a regulation whereby broadcasters are
requiring conforming to the limit so prescribed in the regulation from the language of Section
36 its clear that there is nothing to exclude the Watchdog's power to place a cap on the duration
of advertisements through regulations.

63
BSNL v. Telecom Regulatory Authority of India, (2014) 3 SCC 222
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 PRAYER
Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, this Hon'ble Court may be pleased to:

1. Declare That Regulation 9 issued by the telecom watchdog is Constitutional.

2. Declare That the Broadcasters shall comply with the Directive issued by the Television
Watchdog
3. Declare That the Judgement of the High Court of Memphis was per incuriam and that
it was confined to the territorial limits of the State of Memphis

And issue any other, writ or direction in the interest of justice, equity, and good conscience.

This, the Counsel for the respondent shall duty bound, forever pray.

Place: Union of Heliopolis

Date:

Sd/-

(Counsel for Petitioner)

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