TC-2413

VISWANATH PASAYAT MEMORIAL NATIONAL MOOT COURT

COMPETITION, 2024

BEFORE THE HON’BLE SUPREME COURT OF HINDIA

IN THE MATTER:

BETWEEN

SUMAN SINGH……………………………...……...……...……...……………..PETITIONER

v.

STATE OF GOPUR………………………………………….….…..……. RESPONDENT

WP- / /2024

UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE HON’BLE SUPREME

COURT OF HINDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

 VISWANATH PASAYAT MEMORIAL NATIONAL MOOT COURT
COMPETITION, 2024

TABLE OF CONTENTS

LIST OF ABBREVATIONS....................................................................................................................2
INDEX OF AUTHORITIES....................................................................................................................3
STATEMENT OF JURISDICTION........................................................................................................6
STATEMENT OF FACTS.......................................................................................................................7
QUESTIONS OF LAW...........................................................................................................................9
SUMMARY OF ARGUMENTS...........................................................................................................10
ARGUMENTS ADVANCED................................................................................................................12
ISSUE I - WHETHER THE APPEAL FILED BY THE APPELLANT IS MAINTAINABLE
IN THE HON’BLE SUPREME COURT?....................................................................................12
1,1 SUPREME COURT HAS THE POWER OF JUDICIAL REVIEW........................................................12
1.2 THE PETITIONER HAS THE LOCUS STANDI..............................................................................13
1.3 CHALLENGE TO THE CONSTITUTIONALITY OF THE LEGISLATION............................................13
1.4 THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”.....................................................14
1.5 NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE....................................................14
ISSUE II - WHETHER THE STATE OF GOPUR HAS POWER TO MAKE THE IMPUGES
LEGISLATURE WHEN "POSTS AND TELEGRAPHS; TELEPHONE, WIRELESS,
BROADCASTING AND OTHER LIKE FORMS OF COMMUNICATION" FALLES
UNDER ITEM 31, UNION LIST OF 7th SCHEDULE?..............................................................15
2.1 CONSTITUTIONAL DIVISION OF LEGISLATIVE POWERS: UNION LIST VS. STATE LIST..............15
2.2 INTERPRETATION OF ‘PUBLIC ORDER’ AND ITS LIMITED SCOPE..............................................16
2.3 DOCTRINE OF GENERALIA SPECIALIBUS NON DEROGANT......................................................17
2.4 IDENTIFYING THE TRUE NATURE OF THE LEGISLATION...........................................................18
2.5 DOCTRINE OF COLORABLE LEGISLATION: CONCEALING TRUE LEGISLATIVE INTENT..............18
2.6 DOCTRINE OF OCCUPIED FIELD.................................................................................................19
2.7 FEDERAL STRUCTURE AND DISTRIBUTION OF POWERS...........................................................20
ISSUE III - WHETHER THE IMPUGED LEGISLATIVE IS VIOLATIVE OF ANY OF THE
FUNDAMENTAL RIGHTS GUARANTEED IN THE CONSTITUTION OF HINDIA?.......20
3.1 VIOLATION OF FREE SPEECH AND EXPRESSION......................................................................20
3.2 VIOLATION OF RIGHT TO EQUALITY.......................................................................................21
3.3 VIOLATES ARTICLE 21..............................................................................................................23
3.4 VIOLATION OF RIGHT AGAINST EXPLOITATION.......................................................................24
PRAYER................................................................................................................................................25

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LIST OF ABBREVATIONS

ABBREVIATIONS EXPANSION

§ Sec.

¶ Paragraph

i.e., That is

SCC Supreme Court Cases

AIR All Indiana Reporter

Anr. Another

Art. Article

Sec. Sec.

r/w Read with

b/w Between

No. Number

Ed. Edition

HC High Court

SC Supreme Court

Govt. Government

Hon’ble Honorable

PIL Public Interest Litigation

Jus. Justice

COH Constitution of Hindia

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INDEX OF AUTHORITIES

S.NO. CASE LAW CITATION

1 Ashok Kumar Pandey v. State (2004) 3 SCC 349

of West Bengal

2 Ashok Kumar v. Union of (1991) 3 SCC 498

India

3 Bandhua Mukti Morcha v. (1984) 3 SCC 161

Union of India

4 Bharat Hydro Power Corp. Ltd. (2004) 2 SCC 553

v. State of Assam

5 Budhan Choudhry & Ors. v. (1954) 2 SCC 791

State of Bihar

6 Chairman, Railway Board v. (2000) 2 SCC 465

Chandrima Das & Ors.

7 D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378

8 Gulabbhai Vallabbhai Desai v. (1967) 1 SCR 602

Union of India

9 Hussainara Khatoon & Ors. v. (1980) 1 SCC 98

Home Secretary, State of Bihar

10 Indian Express Newspapers v. 1986 AIR 515

Union of India

11 I.R. Coelho v. State of Tamil (2007) 2 SCC 1

Nadu

12 ITC Ltd. v. State of Karnataka 1985 Supp SCC 476

13 K.K. Kochunni v. State of 1959 SCC OnLine SC 84

Madras

14 Kartar Singh v. State of Punjab (1994) 3 SCC 569

15 Keshavananda Bharati v. State AIR 1973 SC 1461

of Kerala

16 Kunal Kamra v. Union of India Writ Petition (L) No. 9792 of

2023

17 Maneka Gandhi v. Union of (1978) 1 SCC 248

India

18 Mining and Allied Machinery 2001 SCC OnLine Cal 676

Corporation Ltd. v. State of

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West Bengal

19 Natural Resources Allocations, (2012) 10 SCC

In Re Special Reference No. 1
of 2012

20 Prafulla Kumar Mukherjee v. AIR 1947 PC 60

Bank of Commerce Ltd.

21 Rameshwar Prasad v. Union of (2006) 2 SCC 1

India

22 Romesh Thappar v. State of AIR 1950 SC 124 / 1950 SCC

Madras 436

23 RS Joshi v Ajit Mills, (1977) 4 SCC 98

Ahmedabad

24 Sakal Papers Ltd. v. Union of AIR 1962 SC 305

India

25 Shreya Singhal v. Union of (2015) 5 SCC 1

India

26 State of Madras v. V.G. Row AIR 1952 SC 196

27 State of West Bengal v. Anwar (1952) 1 SCC 1 / AIR 1952 SC

Ali Sarka 75

28 Swaraj Abhiyan v. Union of (2016) 7 SCC 498

India

29 Tehseen Poonawalla v. Union (2018) 6 SCC 72

of India

30 Transport & Dock Workers (2011) 2 SCC 575

Union v. Mumbai Port Trust

31 Vijay C Puljal v State of AIR 2005 (NOC) 613 (Bom

Maharashtra FB)

S. BOOKS
NO.
1. D.D. BASU, INTRODUCTION TO CONSTITUTION OF INDIA (27TH ed. LEXIS NEXIS 2024)

2. DR. NARENDRA KUMAR, CONSTITUTIONAL LAW OF INDIA (9TH ed. ALLAHABAD LAW
AGENCY 2016)
3. B.P BANERJEE, WRIT REMEDIES, (8th ed. LEXIS NEXIS 2022)

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4. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (8th ed. LEXIS NEXIS 2018)

5. DR. S.C. KASHYAP, CONSTITUTIONAL LAW OF INDIA (UNIVERSAL LAW PUBLISHING

2008)

6. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH ED. LEXIS NEXIS 2007)

7. V.N. SHUKLA, CONSTITUTION OF INDIA (12TH ED. EASTERN BOOK COMPANY 2016)

S. STATUTES
NO.
1. THE FAKE NEWS (PROHIBITION AND PUNISHMENT) ACT, 2022, ACTS OF STATE
LEGISLATIVE ASSEMBLY, 2022 (GOPUR) .

2. THE HINDIA CONSTITUTION, 1950 (HINDIA).

S. ONLINE DATABASE
NO.
1. AIR ONLINE

2. EBC

3. LEXIS NEXIS

4. LIVE LAW

5. MANUPATRA

6. SCC ONLINE

S. OTHER SOURCES
NO.
1. GARNER, BRYAN A. BLACK, HENRY CAMPBELL, BLACK'S LAW DICTIONARY (9TH EDN,
2009).
2. THE LAWS AND THE DICTIONARY, OXFORD UNIVERSITY PRESS UK; 10TH EDITION (9 JUNE
2022).

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STATEMENT OF JURISDICTION

It is humbly submitted that in the case of Suman Singh versus State of Gopur, the Petitioner
has approached the Hon’ble Supreme Court of Hindia under Article 32 of Constitution of
Indiana which reads as follows:.—

“Art. 32 of the Constitution of Hindia reads as:

Remedies for enforcement of rights conferred by this Part

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

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

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

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

The Present Memorandum Sets Forth the Facts, Contentions and Arguments in the Instant
Case.

STATEMENT OF FACTS

COUNTRY OF HINDIA

Hindia is a democratic republic where freedom of the press is a fundamental right. The media
has always played a key role in shaping public opinion and exposing important issues, which
is protected under the right to freedom of speech and expression.

COMPETIION IN JOURNALISM

Over time, competition within the media increased, leading to more sensational reporting.
While some media outlets started using attention-grabbing headlines and controversial stories
to attract viewers, many journalists continued to work in the public interest, revealing
important stories of injustice.

IMPACT OF INVESTIGATIVE JOURNALISM

In 2002, Suman Singh, a journalist from PARSO TAK NEWS, uncovered a major cover-up
by the police in a rape and murder case. His reporting led to the reopening of the case and the
conviction of the accused. This highlights the critical role journalists play in bringing justice
to light.

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INCIDENT 1 (JANUARY 2022)

In January 2022, a communal riot broke out in Buradabad village after repeated media
coverage of a sensitive rape case. While the media was blamed for revealing the names of the
victim and the accused. The violence was an unfortunate outcome, but the role of the media
in this event is still debatable.

INCIDENT 2 (JULY 2022)

In July 2022, a foreign national named William Smith fell ill, and the media speculated that
he might be carrying a new variant of COVID-19. This led to widespread fear, protests, and
ultimately, Smith’s tragic death. It was later revealed that he was suffering from tuberculosis,
not a COVID-19 variant.

LAW PASSED

Despite these incidents, the Central Government chose not to introduce a law to regulate the
media, recognizing the importance of press freedom. However, the State of Gopur enacted
the "Fake News (Prohibition and Punishment) Act, 2022," which imposes strict penalties on
journalists for disseminating information that may be deemed false, even if done with good
intentions.

INCIDENT 3 (FEBRUARY 2023)

In February 2023, senior journalist Suman Singh of PARSO TAK NEWS accused popular
actor Dravidian Khan of involvement in drug trafficking based on unverified information.
This led to a high-profile raid and the subsequent arrest of Khan. However, after a lengthy
investigation, Khan was acquitted, and Singh was convicted of spreading false news.

LEGAL CHALLENGE

Although Singh was later acquitted on appeal, he filed a Public Interest Litigation (PIL) in the
Hon'ble Supreme Court of Hindia in June 2024, challenging the constitutionality of the "Fake
News (Prohibition and Punishment) Act, 2022.

The PIL raises two key legal issues: (a) whether the State of Gopur has the legislative
competence to enact such a law, and (b) whether the Act violates the freedom of the press as
guaranteed by the Constitution of Hindia.

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.

QUESTIONS OF LAW

ISSUE – I

WHETHER THE PRESENT PETITION IS MAINTINABLE IN HON'BLE SUPREME COURT?

ISSUE - II

WHETHER THE STATE OF GOPUR HAS POWER TO MAKE THE IMPUGES LEGISLATURE WHEN
"POSTS AND TELEGRAPHS; TELEPHONE, WIRELESS, BROADCASTING AND OTHER LIKE FORMS OF
COMMUNICATION" FALLES UNDER ITEM 31, UNION LIST OF 7TH SCHEDULE?

ISSUE - III

WHETHER THE IMPUGED LEGISLATIVE IS VIOLATIVE OF ANY OF THE FUNDAMENTAL

RIGHTS GUARANTEED IN THE CONSTITUTION OF HINDIA?

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SUMMARY OF ARGUMENTS

ISSUE I - WHETHER THE PRESENT PETITION IS MAINTINABLE IN HON'BLE

SUPREME COURT?

The petitioner humbly submits before this Hon’ble Supreme Court of Hindia that the present
Public Interest Litigation is maintainable under Article 32 of the Constitution. The Fake News
(Prohibition and Punishment) Act, 2022, impacts fundamental rights, particularly the freedom
of speech and expression under Article 19. Public interest litigation is necessary in such
circumstances, particularly in a welfare State such as ours.

Public interest litigation serves to protect the broader community's legal rights, and in this
case, the petitioner, Suman Singh, a recognized public-spirited individual, has sufficient
interest to bring the matter before this Court. This PIL does not seek personal benefit but
challenges the constitutionality of a law that affects the public at large, making it
maintainable under the principles of PIL jurisprudence. Furthermore, there is a substantial
question of law have been framed to be decided by this Hon'ble Court in this
case. Adjudication on these pertinent issues necessitates the admission of the petition.

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ISSUE II - WHETHER THE STATE OF GOPUR HAS POWER TO MAKE THE IMPUGES
LEGISLATURE WHEN "POSTS AND TELEGRAPHS; TELEPHONE, WIRELESS,
BROADCASTING AND OTHER LIKE FORMS OF COMMUNICATION" FALLES
UNDER ITEM 31, UNION LIST OF 7TH SCHEDULE?

The petitioner submits that the Act is ultra vires to the Constitution, as the regulation of
media and communication falls exclusively within the Union’s legislative domain, violating
the separation of powers between the Union and State legislatures. Furthermore, Public Order
is a General Entry while Union list has specific domain on the same. The doctrine of pith and
substance is invoked to show that the Act's primary purpose is regulating media content
rather than maintaining public order. Additionally, it is argued that the Act exemplifies
colourable legislation, as it disguises an infringement on Union powers under the pretext of
public order.

ISSUE III - WHETHER THE IMPUGED LEGISLATIVE IS VIOLATIVE OF ANY OF THE

FUNDAMENTAL RIGHTS GUARANTEED IN THE CONSTITUTION OF HINDIA?

The Fake News Act violates the right to free speech under Article 19(1)(a) by defining "fake
news" in an overly vague and broad manner, as information that is wholly or partly false,
misleading, or deceptive, and published with harmful intent (Section 2(a)). This lack of
clarity allows for subjective interpretation, leading to arbitrary enforcement and stifling
legitimate journalism and expression. Similar concerns were raised in Kunal Kamra v. Union
of India (2024) regarding the vagueness of the IT Rules, 2021. Such arbitrary restrictions on
speech, without clear guidelines, undermine free expression and should be struck down as
unconstitutional.

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ARGUMENTS ADVANCED

ISSUE I - WHETHER THE APPEAL FILED BY THE APPELLANT IS

MAINTAINABLE IN THE HON’BLE SUPREME COURT?

(¶)1. The petitioner humbly submits before this Hon’ble Supreme Court of Hindia that the
present Public Interest Litigation is maintainable under Article 32 of the Constitution. The
Fake News (Prohibition and Punishment) Act, 2022, impacts fundamental rights,
particularly the freedom of speech and expression under Article 19. Public interest
litigation is necessary in such circumstances, particularly in a welfare State such as ours. 1
(¶)2. Public interest litigation serves to protect the broader community's legal rights, and in this
case, the petitioner, Suman Singh, a recognized public-spirited individual, has sufficient
interest to bring the matter before this Court. This PIL does not seek personal benefit but
challenges the constitutionality of a law that affects the public at large, making it
maintainable under the principles of PIL jurisprudence. Furthermore, there is a substantial
question of law have been framed to be decided by this Hon'ble Court in this
case. Adjudication on these pertinent issues necessitates the admission of the petition.

1
Swaraj Abhiyan v. Union of India, (2016) 7 SCC 498.

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1.1 SUPREME COURT HAS THE POWER OF JUDICIAL REVIEW
(¶)3. The Constitution expressly confers upon the Supreme Court the power of Judicial review
under Article 32.2 It has the exclusive power of judicial review to resolve disputes
regarding the limits of constitutional power as an ultimate interpreter of the Constitution. 3
(¶)4. The apex Court is the ultimate interpreter of the Constitution. 4 The court is empowered
under Article 13 to strike down any law which is inconsistent with the Fundamental
Rights contained under Part III of the Constitution.5
(¶)5. In this case, the Fake News (Prohibition and Punishment) Act, 2022, enacted by State of
Gopur is clearly violative of Fundamental rights (especially Right to freedom of Speech
and Expresssion) of People. So, it becomes the duty of hon’ble court to examine this Act
as it is inconsistent with the fundamental rights.

1.2 THE PETITIONER HAS THE LOCUS STANDI

(¶)6. The term locus standi refers to the right of being heard and the ability to institute a
proceeding or bring into an action before the court of law. 6 Any member of public or any
public-spirited organization having a bona fide and sufficient public interest will have
locus standi to maintain an action for writ petition under Art. 32 as PIL.7
(¶)7. It is humbly submitted that the petitioner, Suman Singh, is a public-spirited individual
who has consistently worked towards the welfare and development of society and even
got Hind ke Sitara award for the same. In the present case, the petitioner is acting
bonafidely to protect the fundamental right of Freedom of Speech and Expression of the
public at large. Therefore, the petitioner has requisite locus standi as PIL by a public-
spirited person, on behalf of a section of society suffering from the violation of
fundamental rights, is maintainable.8
(¶)8. Furthermore, in Tehseen Poonawalla v. Union of India9, it was held by hon’ble Supreme
Court that“Public interest litigation has developed as a powerful tool to espouse the
cause of the marginalised and oppressed. Persons who were unable to seek access to the
judicial process by reason of their poverty, ignorance or illiteracy are faced with a
deprivation of fundamental human rights. The hallmark of a public interest petition is that

2
Rameshwar Prasad v. Union of India, (2006) 2 SCC 1.
3
Gulabbhai Vallabbhai Desai v. Union of India, (1967) 1 SCR 602.
4
I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
5
1 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689 (8th ed. 2007).
6
BLACK'S LAW DICTIONARY 1084 (10th ed. 2014).
7
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349.
8
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
9
Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72.

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a citizen may approach the court to ventilate the grievance of a person or class of persons
who are unable to pursue their rights.”
(¶)9. It is further submitted that the petitioner, Suman Singh, fulfills the requirements of locus
standi to bring this Public Interest Litigation. As a public-spirited individual with a proven
track record of social service, the petitioner is acting in good faith to safeguard the
fundamental rights of a section of society.

1.3 CHALLENGE TO THE CONSTITUTIONALITY OF THE LEGISLATION

(¶)10. Furthermore, as the constitutionality of the Fake News (Prohibition and Punishment) Act,
2022 is challenged in the present petition, on the grounds of its violation of the freedom
of speech and expression, as well as the legislative competence of the State of Gopur, it is
the duty of this Hon'ble Court to carefully examine the merits of the case.
(¶)11. As it was held in D.C. Wadhwa v. State of Bihar10 by the hon’ble Supreme Court that:-

“The rule of law constitutes the core of our Constitution and it is the essence of the rule
of law that the exercise of the power by the State whether it be the legislature or the
executive or any other authority should be within the constitutional limitations and if any
practice is adopted by the executive which is in flagrant and systematic violation of its
constitutional limitations. A member of the public would have sufficient interest to
challenge such practice by filing a writ petition and it would be the constitutional duty of
this Court to entertain the writ petition and adjudicate upon the validity of such
practice.”

1.4 THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”

(¶)12. It is pertinent to note that this Hon'ble Court has repeatedly assumed the role of the
“sentinel on the qui vive”11 to enforce fundamental rights of the people. It is humbly
submitted that in light of the prevailing circumstances, which are depriving a large section
of the population of their fundamental right to Freedom of Speech and Expression, the
Court has the constitutional duty and obligation12 to entertain this petition.

1.5 NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE

(¶)13. It is humbly submitted that the petitioner is justified in approaching this Hon'ble Court as
approaching this court under Article 32 for the protection of fundamental rights, is itself a
fundamental right. The Supreme Court has consistently upheld the principle that the right

10
D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378.
11
State of Madras v. V.G. Row, AIR 1952 SC 196.
12
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, (1980) 1 SCC 98.

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to petition this Court for the enforcement of fundamental rights is sacrosanct, irrespective
of the existence of alternative remedies.
(¶)14. In Romesh Thappar v. State of Madras13, it was held by the hon’ble Supreme Court
that:
“Under the Constitution this Court is constituted the protector and guarantor of
fundamental rights and it cannot refuse to entertain applications seeking the protection of
this Court against infringement of such rights, although such applications are made to
this Court in the first instance without resort to a High Court having concurrent
jurisdiction in the matter. The mere existence of an adequate alternative legal remedy
cannot per se be a good and sufficient ground for throwing out a petition under Article
32, if the existence of a fundamental right and a breach, actual or threatened, of such
right is alleged and is prima facie established on the petition.”
(¶)15. Likewise, in K.K. Kochunni v. State of Madras14, the hon’ble court reiterated that a
petition under Article 32 can’t be refused on the ground that there is a statutory or other
remedy available to the petitioner.
(¶)16. In conclusion, the petition presented before this Hon'ble Court is both maintainable and
justified on several grounds. The petitioner, Suman Singh, possesses the requisite locus
standi as a public-spirited individual, acting in good faith to safeguard the fundamental
rights of the public, particularly the right to freedom of speech and expression. The
Supreme Court, as the ultimate interpreter of the Constitution and guardian of
fundamental rights under Article 32, has the responsibility to review the constitutionality
of the Fake News (Prohibition and Punishment) Act, 2022 enacted by the State of Gopur.

ISSUE II - WHETHER THE STATE OF GOPUR HAS POWER TO MAKE THE

IMPUGES LEGISLATURE WHEN "POSTS AND TELEGRAPHS; TELEPHONE,
WIRELESS, BROADCASTING AND OTHER LIKE FORMS OF
COMMUNICATION" FALLES UNDER ITEM 31, UNION LIST OF 7th SCHEDULE?

(¶)17. The present case revolves around the constitutional validity of the Fake News
(Prohibition and Punishment) Act, 2022, enacted by the State of Gopur. The primary
issue before the Hon’ble Supreme Court is whether the State of Gopur has the legislative
competence to enact a law that regulates media and communication content, which is a

13
Romesh Thappar v. State of Madras, 1950 SCC 436.
14
K.K. Kochunni v. State of Madras, 1959 SCC OnLine SC 84.

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subject under Item 31 of the Union List. The petitioner submits that the Act is ultra vires
to the Constitution, as the regulation of media and communication falls exclusively within
the Union’s legislative domain, violating the separation of powers between the Union and
State legislatures.
2.1 CONSTITUTIONAL DIVISION OF LEGISLATIVE POWERS: UNION LIST VS. STATE LIST
(¶)18. The Counsel for Petitioner humbly submits before the hon’ble Supreme Court that the
Constitution has established a clear demarcation of legislative powers between the Centre
and the States through the Seventh Schedule, which contains three Lists. The three lists
are very detailed and the constitution makers have made an attempt to make the entries in
one List exclusive of those in other lists.15 An Entry in one list cannot be so interpreted as
to make it cancel or obliterate another entry or make entry meaningless.
(¶)19. Under Article 246(1)16, the Union Parliament has exclusive competence to legislate on
matters enumerated in List I (Union List), which includes Item 31: "Posts and
telegraphs; telephones, wireless, broadcasting, and other like forms of
communication."
Since the impugned Act regulates content across broadcast media, digital platforms, and
social media, it intrudes into the Union’s exclusive domain, rendering it ultra vires.
(¶)20. The Act contains several provisions that clearly fall within the Union's domain, such as:
Section 2(b): Defines media to include print, electronic, digital, and social media, all of
which involve forms of communication under Item 31.
Section 3: Prohibits the publishing or broadcasting of fake news, directly implicating
broadcast channels like television and radio.
Section 8: Authorizes the blocking or removal of content from media platforms, including
online platforms, further encroaching upon areas reserved for the Union.
(¶)21. The inclusion of broadcasting and digital platforms shows that the Act intends to regulate
content dissemination, a subject governed by Item 31, thereby overstepping the State's
legislative competence.
(¶)22. The Court held that public order is a state subject, but the state’s powers in this domain
cannot extend to curbing the fundamental right of free expression, which is protected
under the Constitution. The Court ruled that maintaining public order could not justify
broad restrictions on communication, a central subject under the Union List. This decision
underscored the balance between the Centre’s control over communication and the State’s

15
1, M.P. Jain, Indian Constitutional Law, p. 756 (6th Edn. 2010).
16
Hindia Const. art.246, cl. 1.

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authority to maintain public order, emphasizing that the latter cannot infringe upon
fundamental rights. The Court struck down the ban, reinforcing the protection of freedom
of speech and limiting state interference in matters of communication.17

2.2 INTERPRETATION OF ‘PUBLIC ORDER’ AND ITS LIMITED SCOPE

(¶)23. It is respectfully submitted that the Respondent contends that the impugned legislation,
"The Fake News (Prohibition and Prevention) Act, 2022," falls under the ambit of "public
order," a matter within the State List. However, this assertion lacks merit and is a vague
attempt to justify legislative overreach. The regulation of fake news, especially through
media platforms, pertains to broadcasting and communication, subjects listed under
Item 31 of the Union List, and not public order.
(¶)24. Even when the rule of widest construction is applied to interpret entries in the legislative
lists, the Hon'ble Supreme Court has held that this rule would not entitle the Legislature
to make a law relating to a matter which has no rational connection with the subject
matter of the concerned Entry.
(¶)25. Allowing the State to regulate broadcasting and communication in the name of public
order would violate the constitutional scheme that divides legislative powers between the
Union and States. As the Supreme Court has noted:
“If the State, in the process of enacting legislation on the public order, were to
legislate by regulating substantive areas which fall in the Union List, that would lead
to the destruction of the basic scheme envisaged in the distribution of legislative
powers. Legislation on public order must address public order. Otherwise, in the guise of
legislating on public order, substantive areas which are reserved to Parliament in the
Union List would be subject to regulation by the States. This is impermissible. A law
on public order must essentially address itself to the preservation and maintenance of
public order.”18
(¶)26. In this case, the regulation of fake news primarily involves broadcasting and
communication, which fall under the exclusive legislative competence of the Union.
Hence, there is no rational connection between the regulation of fake news and the
general subject of public order.

17
Romesh Thappar v. State of Madras AIR 1950 SC 124
18
Vijay C Puljal v State of Maharashtra, AIR 2005 (NOC) 613 (Bom FB).

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2.3 DOCTRINE OF GENERALIA SPECIALIBUS NON DEROGANT
(¶)27. The doctrine of Generalia Specialibus Non Derogant directly applies in this context. This
principle holds that when a conflict arises between a general and a specific entry, the
specific entry prevails.
(¶)28. In this case, "Public order" is a general entry under the State List, giving States the
authority to legislate on matters related to maintaining public peace. However,
"Broadcasting and communication" are specific subjects under Item 31 of the Union List,
which grants exclusive legislative power to the Union Parliament.
(¶)29. According to the doctrine, a general entry like public order cannot override a specific
entry like broadcasting or communication, which is exclusively within the Union's
legislative domain. Thus, even if regulating fake news has an indirect impact on public
order, the Union's specific power over broadcasting and communication takes precedence.
2.4 IDENTIFYING THE TRUE NATURE OF THE LEGISLATION

(¶)30. The doctrine of pith and substance is a well-established principle used to determine the
true nature and character of legislation when its competence is in question. In order to
examine legislative competence when a legislation impinges upon legislative field of
another legislature, application of the doctrine of ‘pith and substance’ with regard to be
held to (i) enactment as a whole (ii) its main objects and (iii) scope and effect of its
provisions.19. It is the true nature and character, i.e. pith and substance of legislation, and
not its consequences, which shall determine to which entry the legislation belongs.20
(¶)31. In the present case, the Fake News (Prohibition and Prevention) Act, 2022, passed by
the State of Gopur, directly regulates media content by prohibiting and penalizing the
dissemination of fake news. The law’s provisions are inherently linked to the broadcast
and communication systems, which fall under Item 31 of the Union List.
(¶)32. While the State of Gopur attempts to justify the legislation under the category of public
order, which is a State subject, the pith and substance of the law is not public order.
Instead, the law's main object and purpose are to regulate the content and conduct of
communication channels, which clearly falls under the legislative competence of the
Union.
(¶)33. Though the law may have incidental effects on public order, this does not alter its core
subject matter, which is communication and broadcasting. According to the doctrine of

19
Bharat Hydro Power Corp. Ltd. v. State of Assam, (2004) 2 SCC 553.
20
Mining and Allied Machinery Corporation Ltd. v. State of West Bengal, 2001 SCC OnLine Cal 676.

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pith and substance, it is the true nature and character21 of the law, and not its incidental
impacts, that determine its place within the legislative lists. Therefore, the impugned
legislation encroaches upon a Union subject, and thus, falls outside the legislative
competence of the State of Gopur.

2.5 DOCTRINE OF COLORABLE LEGISLATION: CONCEALING TRUE LEGISLATIVE INTENT

(¶)34. The impugned legislation, "The Fake News (Prohibition and Punishment) Act, 2022,” is a
clear instance of colourable legislation. The doctrine of Colourable legislation is based
on the maxim that what cannot be done directly also cannot be done indirectly. The idea
conveyed by this expression “Colourable” is that although a legislature in passing a statue
purports to act within the limits of the powers, yet in substance and in reality it
transgresses those powers, the transgression being veiled by what appears on proper
examination to be a mere pretence or disguise.22
(¶)35. The State of Gopur claims that "The Fake News (Prohibition and Punishment) Act, 2022"
was enacted to maintain public order, which falls under the State List. However, in reality,
a proper examination reveals that the law primarily regulates media and communication
content, which is a subject under the Union List, Item 31.
(¶)36. Even the hon’ble Supreme Court in RS Joshi case 23, has held that when a law enacted
under one entry of the List falls, in truth, within the domain of another legislature, it can
be struck down as colourable legislation, regardless of the motives.
“In the jurisprudence of power, colourable exercise of or fraud on legislative power or,
more frightfully, fraud on the Constitution, are expressions which merely mean that the
legislature is incompetent to enact a particular law, although the label of competency is
stuck on it, and then it is colourable legislation. If a legislation, apparently enacted under
one Entry in the List, falls in plain truth and fact, within the content, not of that Entry but
of one assigned to another legislature, it can be struck down as colourable even if the
motives were most commendable.”

2.6 DOCTRINE OF OCCUPIED FIELD

(¶)37. The Doctrine of Occupied Field further strengthens the argument that the impugned "Fake
News (Prohibition and Punishment) Act, 2022" is unconstitutional. According to this
doctrine, when a field of legislation is already occupied by Parliament through legislation
under List I (Union List), the State legislature is rendered wholly incompetent to legislate
21
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60.
22
Ashok Kumar v. Union of India, (1991) 3 SCC 498.
23
RS Joshi v Ajit Mills, Ahmedabad, (1977) 4 SCC 98.

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on that subject. This doctrine finds support wherein Supreme Court held that once the
field is occupied by Union legislation, no encroachment or entrenchment by the State
legislature is permitted, no matter how minimal.24
(¶)38. In this case, Item 31 of the Union List deals with "Posts and telegraphs; telephones,
wireless, broadcasting, and other like forms of communication." Regulation of media and
communication content falls squarely within this domain. The Union has exclusive
legislative competence to make laws regulating broadcasting, telecommunication, and
other forms of media. The field of communication, including the regulation of media, is
thus fully occupied by Union legislation, and the State is constitutionally barred from
enacting laws in this area.
2.7 FEDERAL STRUCTURE AND DISTRIBUTION OF POWERS
(¶)39. The federal structure of the Constitution necessitates a clear division of powers between
the Union and State legislatures to maintain order and prevent legislative overlap. In
Keshavananda Bharati v. State of Kerala (1973) 25, the Supreme Court emphasized the
importance of maintaining the integrity of the Constitution's framework, which includes
respecting the legislative powers allocated to different levels of government. The State of
Gopur's attempt to legislate in this domain undermines the federal balance intended by the
Constitution.
(¶)40. In Sakal Papers (P) Ltd. v. Union of India (1962) 26, the Supreme Court ruled that the
Centre’s authority over communication matters cannot be compromised by state actions.
This ruling affirms that the regulation of communication is a central subject and any state
law attempting to regulate it is inherently invalid.
(¶)41. It is submitted that the Fake News (Prohibition and Punishment) Act, 2022 enacted by
the State of Gopur is unconstitutional on multiple grounds. It not only encroaches upon a
field exclusively reserved for the Union under Item 31 of the Union List but also
represents colourable legislation, as it attempts to disguise the regulation of media
content under the pretext of maintaining public order. Therefore, the Hon’ble Supreme
Court is urged to strike down the impugned legislation as being ultra vires to the
Constitution.

24
ITC Ltd. v. State of Karnataka, 1985 Supp SCC 476.
25
Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
26
Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305.

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ISSUE III - WHETHER THE IMPUGED LEGISLATIVE IS VIOLATIVE OF ANY OF

THE FUNDAMENTAL RIGHTS GUARANTEED IN THE CONSTITUTION OF
HINDIA?

3.1 VIOLATION OF FREE SPEECH AND EXPRESSION

3.1.1 VAGUE AND OVERBROAD DEFINITIONS

(¶)42. It is humbly submitted that the Fake News Act defines "fake news" vaguely, as "any
information, news, or communication that is wholly or partly false, misleading, or
deceptive, and which is published with the intent to mislead or cause harm" (Section
2(a)). This overly broad definition allows for subjective interpretation, similar to the
vagueness concerns raised in the recent judgement of Kunal Kamra v. Union of India27,
dated 20-09-2024 regarding the definition of "fake or false or misleading" information
under the Information Technology Rules, 2021.
(¶)43. The court emphasized that vague and broad terms, without clear guidelines, can lead to
arbitrary enforcement on subjective basis.28
(¶)44. The vague definition of "fake news" in the Act may lead to arbitrary actions by
authorities, stifling legitimate media and investigative journalism. It is humbly submitted
that the lack of clear guidelines in determining what constitutes "fake news" violates
Article 19(1)(a), similar to the concern raised in Kunal Kamra.
(¶)45. It is humbly submitted that as there is no clear guidance given in the provisions and is an
arbitatry provision, it should be struck down as arbitrary and unreasonable.

3.1.2 VIOLATION OF RIGHT TO PROFESSION

(¶)46. The Fake News Act violates the right to profession under Article 19(1)(g) of the
Constitution by imposing unreasonable and excessive restrictions on journalists, media
professionals, and others in the communication industry. The vague and broad definitions
of "fake news" within the Act create uncertainty, making it difficult for professionals to
carry out their work without fear of arbitrary penalization. Such provisions deter the free
practice of journalism, reporting, and related professions, imposing a chilling effect on
the industry as a whole. The absence of clear safeguards or guidelines further exacerbates
the infringement on the right to profession, as guaranteed by the Constitution, rendering
the Act's restrictions disproportionate and unconstitutional.

27
Kunal Kamra v. Union of India, Writ Petition (L) No. 9792 of 2023.
28
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

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(¶)47. In Indian Express Newspapers v. Union of India29, the Supreme Court held that
unreasonable governmental control over the press violates both freedom of speech and the
right to practice one's profession. Excessive regulation under the Fake News Act could
similarly be challenged for violating the professional rights of journalists and media
houses.
3.2 VIOLATION OF RIGHT TO EQUALITY
(¶)48. It is humbly submitted that the impugned act violates Article 14 as it doesn’t pass the twin
tests of reasonableness and there exists no rational nexus between the differentia and the
object sought to be achieved.
(¶)49. Every person is entitled to equality before law and the equal protection of the laws, 30
irrespective of whether he is a citizen or noncitizen. 31 Laws apply equally to all persons
equally circumstanced.

3.2.1 THE ACT DOESN’T PASSES THE TWIN TESTS OF REASONABLENESS

(¶)50. It is humbly submitted that the provision of the act fails the twin tests of intelligible
differentia4 and there exists a rational nexus and purpose of legislation 32 as laid down in
State of West Bengal v. Anwar Ali Sarkar33 and reiterated in Budhan Choudhry &
Ors. v. State of Bihar34 :-
“ that the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group, and
that that differentia must have a rational relation to the object sought to be achieved by
the Act”
(¶)51. The doctrine of intelligible differentia mandates that a law must reasonably distinguish
between entities it governs. However, the Fake News Act treats private individuals and
media organizations alike, failing to account for their differing roles and societal impact.
This lack of distinction violates the principle of equal protection of the law under Article
14 of the Constitution.
(¶)52. The objective of the Act is to criminalize misleading information disseminated with the
intent to cause harm. However, the definition of "fake news" under Section 2 of the Act
extends to include misleading information or content that causes harm to the public,

29
Indian Express Newspapers v. Union of India, 1986 AIR 515.
30
Chairman, Railway Board v. Chandrima Das & Ors., (2000) 2 SCC 465.
31
Natural Resources Allocations, In Re Special Reference No. 1 of 2012, (2012) 10 SCC.
32
Transport & Dock Workers Union v. Mumbai Port Trust, (2011) 2 SCC 575.
33
State of West Bengal v. Anwar Ali Sarkar, (1952) 1 SCC 1.
34
Budhan Choudhry & Ors. v. State of Bihar, (1954) 2 SCC 791.

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which is broader than the stated objective. This inconsistency results in a definition that
exceeds the scope of the harm-based intent the Act seeks to address.

3.2.2 SELECTIVE ENFORCEMENT

(¶)53. The absence of clear guidelines under the Fake News Act opens the door to selective
enforcement, allowing the government or its agencies to apply the law arbitrarily. This
violates Articles 14, 19(1)(a), 19(1)(g), and 21 of the Constitution, as the law's
vagueness and lack of procedural safeguards allow for discriminatory and unequal
treatment of individuals and media organizations.
(¶)54. In State of West Bengal v. Anwar Ali Sarkar35, he Supreme Court emphasized that laws
must not give unchecked discretion to the authorities, which can lead to discriminatory
practices36. Similarly, the vague definitions and absence of specific guidelines under the
Fake News Act allow for arbitrary decisions, potentially targeting individuals or media
entities selectively. This violates Article 14, which guarantees equality before the law and
prohibits arbitrary state actions.
3.3 VIOLATES ARTICLE 21
(¶)55. It is humbly submitted that the impugned act contravenes Article 21 of the Indian
Constitution by facilitating the potential for arbitrary deprivation of liberty, failing to
provide adequate fair trial protections that may lead to arbitrary enforcement and
imposing disproportionate punishments that may constitute cruel and unusual
punishment.

3.3.1 UNLAWFUL SEIZURE AND BLOCKING OF CONTENT

(¶)56. The seizure of content under the Fake News Act without the provision of adequate
safeguards, including the absence of a warrant and judicial oversight, constitutes a
violation of Article 21 of the Indian Constitution. Such actions facilitate arbitrary
deprivation of liberty and deny individuals due process, thereby undermining the
fundamental rights to life and personal liberty. Furthermore, the lack of judicial scrutiny
in the seizure process deprives affected individuals of the opportunity to contest the
actions taken against them, exacerbating the infringement of their rights under Article 21.
The Allahabad High Court ruled that the police's seizure of a publication without a
warrant violated the publisher's rights. The Court emphasized that lawful procedures must

35
Ibid. at 20.
36
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75

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be followed for any seizure of property, reinforcing the need for warrants and judicial
oversight.

3.3.2 INFRINGEMENT OF PRIVACY

(¶)57. The provision empowering the designated authority to compel individuals, media entities,
or platforms to provide information related to fake news investigations violates individual
privacy rights. It permits such demands without judicial oversight or a warrant, thereby
undermining personal privacy protections and facilitating arbitrary intrusions contrary to
established legal principles.
3.4 VIOLATION OF RIGHT AGAINST EXPLOITATION
(¶)58. It is humbly submitted that the impugned act violates the right against exploitation by
lacking judicial oversight and provisions for suo motu action. This absence of scrutiny
enables arbitrary enforcement and unchecked power, disproportionately harming
vulnerable individuals and infringing upon fundamental rights without adequate legal
safeguards.

3.4.1 JUDICIAL OVERREACH

(¶)59. The Fake News Act is constitutionally problematic due to its lack of judicial oversight,
leading to concerns about arbitrary enforcement and infringement of fundamental rights.
The absence of meaningful checks and balances violates the principles of natural justice
and due process of law under Article 21 of the Constitution.
(¶)60. The Act empowers authorities to seize content, block platforms, and investigate
individuals without requiring a judicial warrant or prior approval from a court of law.
This absence of judicial scrutiny gives disproportionate power to executive authorities,
allowing them to act unilaterally. The lack of judicial oversight increases the risk of
arbitrary action and abuse of power, as highlighted in Maneka Gandhi v. Union of
India37, where the Supreme Court stressed the importance of procedural safeguards to
prevent arbitrary state action.
(¶)61. In Shreya Singhal v. Union of India 38, the Supreme Court struck down Section 66A of
the Information Technology Act due to the lack of procedural safeguards and the risk of
arbitrary executive action. The Fake News Act shares similar concerns, as it grants
executive authorities unchecked powers to determine what constitutes "fake news" and
take action against it, without any judicial review or safeguards to protect individuals'
fundamental rights.
37
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
38
Shreya Singhal v. Union of India, (2015) 5 SCC 1.

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3.4.2 NO PROVISION FOR SUO MOTTO
(¶)62. Section 11 of The Fake News (Prohibition and Punishment) Act, 2022, as outlined in
the document you shared, specifies that no court shall take cognizance of an offense
under this Act except upon a complaint made by an aggrieved person. Essentially, it
limits the court's ability to take action unless a complaint is filed by a party directly
impacted by the spread of fake news.
(¶)63. This section appears to conflict with the principle of suo moto cognizance, which allows
courts to take action on their own initiative, even if no formal complaint has been filed. In
matters concerning public interest, human rights violations, or systemic failures, courts
often exercise suo motto powers to ensure justice and accountability.
(¶)64. In light of above arguments, it is submitted before this hon’ble Supreme Court that
Fundamental rights of the petitioner are violated and thus this impugned law should be
held unconstitutional.

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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of Hindia
that it may be graciously pleased to adjudge and declare that:

I. The Public Interest Litigation is maintainable.

II. The State Government is not competent to enact the impugned law.
III. The Fake News (Prohibition and Punishment) Act, 2022 is violative of fundamental
rights and thus, declare it as null and void.

AND/OR

Pass any other order that it may deem fit in the favour of the PETITIONER in the light of
equity, justice and good conscience.

For this act of Kindness, the PETITIONER shall be duty bound forever pray.

Place: State of Gopur sd /-

Date: 2nd October, 2024 Counsel for Petitioner

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