Media Moot Memorial Final
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IN THE HON’BLE SUPREME COURT OF INDIA AT NEW DELHI
WRIT PETITION NO. ________/2009
IN THE MATTER OF ATV AND LTV……………………… LTV…………………………………………………… ………………………………….PETITIONERS …….PETITIONERS VERSUS GOVT. OF INDIA…………………… INDIA………………………………………………… ………………………………….RESPONDENT …….RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER
ON SUBMISSION TO THE HONOURABLE JUDGE OF THE SUPREME COURT OF THE INDIA AND HIS COMPANION JUDGES
MOST RESPECTFULLY SUBMITTED
COUNSEL FOR THE PETITIONER
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ………………………………………………………….3 ………………………………………………………….3 INDEX OF AUTHORITIES……………… AUTHORITIES………………………………………… ……………………………………………4 …………………4 STATEMENT OF JURISDICTION……… JURISDICTION………………………………… …………………………………………….7 ………………….7 STATEMENT OF FACTS ………………………………………………………………8 ………………………………………………………………8 STATEMENT OF ISSUES…………………………………… ISSUES………………………………………………………………9 …………………………9 SUMMARY OF ARGUMENTS…………………… ARGUMENTS……………………………………………… …………………………………..10 ………..10 ARGUMENTS………………………………………………… ARGUMENTS…………………… ……………………………………………………..11 ………………………..11 PRAYER……………………………………………… PRAYER………………… ……………………………………………………… …………………………………29 ………29
Written Submission on Behalf of the Petitioner
2
ABBREVATIONS
•
AIR
All India Reporter
•
Art
Article
•
Co
Company
•
Deptt
Department
•
Ed.
Edition
•
P.
Page
•
Pvt.
Private
•
SC
Supreme Court
•
SCC
Supreme Court
Cases •
SCR
Supreme Court
Reporters •
Sec
•
Supp.
Section Supplement
Written Submission on Behalf of the Petitioner
3
•
T.N.
Tamil Nadu
•
v.
Versus
•
Vol.
Volume
INDEX OF AUTHORITIES
Cases
•
Bharat Sanchar Nigam Ltd. and Anr.Vs. BPL Mobile Cellular Ltd. and Ors 2008 (8) SCALE 106
•
L.I.C. v. Manubhai Shah, AIR 1993 SC 171
•
Express Newspapers v. Union of India, AIR 1986 SC 872: (1986) 1 SCC 133.
•
Ajay Goswami v. Union of India (UOI) and Ors1 (2007) 1 SCC 143
•
Prabha v. Union of India, AIR 1982 SC 6: (1982) 1 SCC 1: 1982 SCC (Cri) 41.
•
Government of Andhra Pradesh and Ors. Vs.Smt. P. Laxmi Devi (2008) 4 SCC 720
1
Written Submission on Behalf of the Petitioner
4
•
•
•
•
Arun Kumar and Ors.vs. Union of India (UOI) and Ors (2006) 205 CTR (SC) 193 Confederation Of Ex-Servicemen Associations & Ors. vs Union Of India & Ors, (2006) 8 SCC 399 S.S.K. Niyami v. Union of India, AIR 1990 SC 2128: (1990) 4 SCC 516. Director General, Directorate General of Doordarshan and Ors. v. Anand Patwardhan and Anr. (C.A. No. 613 of 2005)
•
Marbury v. Madison 5 U.S. (1Cranch) 137 (1803)
•
P.Venugopal vs. Union of India (2008) 5 SCC 1
•
Roop Singh Negi Vs. Punjab National Bank and Ors. (2007) 5 SCC 150
Books
•
Bakshi P.M, “The Constitution of India”, 7th edition, 2006, Univeral Law Publishing Co. Pvt. Ltd, New Delhi
•
Baks Bakshi hi,,
Ranb Ranbir ir,,
A.La A.Laxm xmin inat ath, h,
“Con “Const stit itut utio iona nall
Law” Law”,,
2006 2006,,
Lexi Lexiss
Nexi Nexiss
Butterworths, New Delhi. •
Black, Black, Henry Henry Campbe Campbell, ll, “Black “Black’s ’s Law Dictit Dictition ionary ary”, ”, 6th editio edition, n, 1990, 1990, West West Publishing Company, Minnesota.
•
Devi Devida das, s, T., T., Mall Mallar ar,, V.S. V.S. and and Vija Vijayk ykum umar ar,, V., V., Case Casess and and Mate Materi rial alss on Constitutional Law-I: Centre State Relations and Federalism, 1998, National Law School Institute University, Bangalore.
Written Submission on Behalf of the Petitioner
5
•
Jain, M.P., ‘Indian Constitutional Constitutional Law’, 5th edition, 2003, Wadhwa & Company, Nagpur.
•
Pandey, J.N, “Constitutional Law of India”, 44th ed., 2007, Central Law Agency, Allahabad.
Statutes
1.
Cabl Cablee Tele Televi visi sion on Netw Networ orki king ng (Reg (Regul ulat atio ion) n) Act, Act, 1995 1995
2.
The The Cabl Cablee Telev eleviision sion Net Network work Rule Ruless, 1994 1994
3.
Indian Telegraph Act, 1885
4.
The Co Constitution of of India, 19 1950.
Websites 1.
www.manupatra.com
2.
www.indiankanoon.com
Written Submission on Behalf of the Petitioner
6
STATEMENT OF JURISDICTION
The The Peti Petiti tion oner erss humbl humbly y subm submit it befo before re the the Hon’ Hon’bl blee Supr Suprem emee Cour Courtt of Indi India, a, this this memorandum of the present case in the form of a writ petition under article 32 of the constitution of India. It contains the grounds on which the arguments are based.
Written Submission on Behalf of the Petitioner
7
STATEMENT OF FACTS
1. ‘Ace’ Television Television Private Limited and ‘Leading’ ‘Leading’ Television Television Private Private Limited are the two production houses of the leading news channels ‘ATV’ and ‘LTV’ respectively.
Written Submission on Behalf of the Petitioner
8
2. During the recent terror attacks in Mumbai, both the channels did an extensive Live Coverage Coverage of the entire entire terror terror attacks which included included the disclosure disclosure of vital information information of the operations conducted by the Indian Armed Forces. 3. This disclosure of information went in contravention to the instructions issued by the government of India, whereby the Live Media Coverage of the attack was banned. 4. Subs Subseq equen uentt to the the atta attack, ck, Cabl Cablee Tele Televi visi sion on Act Act was was passe passed d whic which h was was appl applie ied d retrospectively, in which Section (7) provided for the censorship and the restriction of any information displayed in Public Interest and Security of State and Section (11) empowers Government of India to cancel the License of Broadcast and to impose fine if any order issued under Section (7) is violated. 5.Government of India through its special secretary served a show cause notice to the news channels that their Broadcast Licences have been cancelled forthwith as they have leaked vital information of the operation, which was aga inst the security of the state. 6. The Channels challenge the validity of the Act as it violated the provisions of the Constitution, furthermore they challenged the show cause notice as well. The writ has been filed before the Hon’ble Supreme Court of India.
ISSUES RAISED
1. Whether the introduced Cable Television Act valid or not?
Written Submission on Behalf of the Petitioner
9
2. Whether the issued Show Cause notice holds some meanings or not? 3. Whether the cancellation of the licenses and banning the Live Media Coverage of Terrorist Attacks is a legally valid action or not?
SUMMARY OF ARGUMENTS
1. Whether the cable television act is valid or not? Written Submission on Behalf of the Petitioner
10
1.1 Whether fundamental rights, Article Article 19(1) (a) are violated or not? 1.2
Do Courts have the power to declare an Act of the Legislature Legislature to be invalid? invalid? 1.2.1 Invalidity of Cable Television Act 1.2.2 How and when should the power of the Court to declare the Statute unconstitutional be excersiced? 1.2.3 Citizen’s Rights to Information 1.2.4 Restriction on freedom of speech-Art 19(2) to (6)
2. Whether the show cause notice is valid or not?
2.1 Is the show cause notice applied in a right way? 3. Whether the cancellation of the licenses and banning the Live Media Coverage of Terrorist Attacks is a legally valid action or not?
3.1 The test of rational nexus is not proved. 3.2 Legal validity of Ban imposed by the government on Live Media Coverage. 3.3 Legal Validity of section 7 in Cable Television (Networks) Regulation Act, 1995
ARGUMENTS ADVANCED
Written Submission on Behalf of the Petitioner
11
1. Whether the Cable Television Act is valid or not? 1.1 Whether fundamental rights, Article 19(1) (a) are ar e violated or not? A law made by the Parliament can be struck down by courts on two grounds and two grounds grounds alone: (1) lack of legislativ legislativee competence; competence; and (2) violation violation of fundamental fundamental rights guaranteed under Part-III of the Constitution or any other constitutional provision. Article 19 - Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right(a) To freedom of speech and expression2; Freedom of the press3 is not expressly mentioned in article 194 but has been held to flow from the general freedom of speech5 and expression guaranteed to all citizens. As judicially construed, this freedom now includes not merely the freedom to write and publish what the writer considers proper, but also the freedom to carry on the business so that information may be disseminated and excessive and prohibitive burden restricting circulation may be avoided. A citizen has a right to know about the activities of the State, the instrumentalities, the departments and the agencies of the State. The privilege of secrecy which existed in old times, (namely) that the State is not bound to disclose the facts to the citizens or the State cannot be compelled by the citizens to disclose the facts, does not survive now to a great extent. Freedom of speech is based on the foundation of freedom of right to know. The State can impose and should impose reasonable restrictions in the rights where it affects the 2
L.I.C. v. Manubhai Shah , AIR 1993 SC 171
3
Express Newspapers Newspapers v. Union of India , AIR 1986 SC 872: (1986) 1 SCC 133.
4
State of Himachal Pradesh and another v. Kailash Chand Mahajan and others
5
Prabha v. Union of India , AIR 1982 SC 6: (1982) 1 SCC 1: 1982 SCC (Cri) 41. Written Submission on Behalf of the Petitioner
12
national security or any other matter affecting the nation’s integrity. But the right is limited and particularly in the matter of sanitation and other allied matters, every citizen has a right to know how the State is functioning and why the State is withholding such information in such matters; In this case, it is a clearly known fact that The Ministry of Home, Government of India through its special secretary has cancelled the license of the petitioner’s channel ‘ATV’. At the first look itself we can identify the unconstitutional implementation of the law by the government. It is know fact that in a democratic state like India it is necessary to have a strong and unbiased press to support the citizens of the country and critically analyze the policies taken by the government. The terror attacks in Mumbai were a black chapter in the history of India. It is also a national shame that our defence and police force couldn’t stop anti-national forces from entering our territory and unleashing attacks against citizens of o ur country. In the case of Ajay Goswami v. Union Un ion of India (UOI) and Ors6 Petitioner filed present petition requesting the Court to direct the authorities to strike a balance between fundamental right of freedom of speech and expression enjoyed by press and duty of government to protect minors from abuse, exploitation and harmful effects of such expression. Pictures which was in dispute had been published by Respondents with the intent to inform readers of the current entertainment news from around the world and India. Any Any step stepss to ban ban publ publis ishi hing ng of cert certai ain n news news piec pieces es or pict pictur ures es woul would d fett fetter er the the independence of free press which is one of the hallmarks of our democratic setup. Petitioner failed to establish the need and requirement to curtail the freedom of speech and expression. Times of India and Hindustan Times are leading newspapers in Delhi having substantial subscr subscribe ibers rs from from all sectio sections. ns. They They have an intern internal al regula regulator tory y syste system m to ensure ensure no object objectiona ionable ble photogr photographs aphs or a matter matter gets gets publis published hed.. They They were were consci conscious ous of their their responsibility towards children but at the same time it would be inappropriate to deprive the adult adult populat population ion of the entert entertain ainmen mentt which which was well within within the accept acceptabl ablee levels levels of 6
(2007) 1 SCC 143 Written Submission on Behalf of the Petitioner
13
decency on the ground that it may not be appropriate for the children. The Petition was dismissed. In the case of Government of Andhra Pradesh and Ors. Vs.Smt. P. Laxmi Devi 7, Writ Petition was filed in praying for a declaration that Section 47A, Indian Stamp Act, 1899 as amended by A.P. Act 8 of 1998, which requires a party to deposit 50 per cent deficit stamp duty as a condition precedent for a reference to Collector under Section 47A, is unconstitutional. Hence, in the present appeal respondent contended that the provision contai contained ned in the provis proviso o to Sectio Section n 47A is arbitr arbitrary ary and unreas unreasona onable ble violat violating ing the fundamental rights guaranteed in Articles 14 and 19(1)(g). In the case of Arun Kumar and a nd Ors.vs. Union of India (UOI) and Ors 8, A question of formulating contributory scheme for ex-servicemen was involved who were claiming claiming full medical medical facility facility.. The Governm Government ent of India India had consti constitut tuted ed a Commit Committee tee headed by Hon'ble Mr. Justice S. Mohan (Retd.) to look into the Report of the Pay Revision Commi Committe tteee for Public Public Sector Sector Execut Executive ives. s. The Commit Committee tee conside considered red variou variouss issues issues incl includ udin ing g issu issues es as to pay pay scal scales es,, perq perqui uisi site tess etc. etc.,, of empl employ oyee eess of Publ Public ic Sect Sector or Undertakings. The various recommendations made by the Committee and submitted that different treatment shown by the authorities to employees of Government and employees of Public Sector Undertakings is arbitrary, discriminatory and unreasonable being violative of Articles 14, 16 and 19 of the Constitution. Therefore, submitted that the benefits extended to Government employees ought to have been extended to employees of Public Sector Undertakings as well. In the case of Confederation Confederation of Ex-Service Ex-Servicemen men Associations Associations & Ors. vs Union Of India & Ors9, 7
(2008) 4 SCC 720
8
(2006) 205 CTR (SC) 193
9
(2006) 8 SCC 399 Written Submission on Behalf of the Petitioner
14
The grievance of the petitioner is that though several attempts had been made by the Associati Associations, ons, the Government Government of India had never taken the matter matter seriously seriously as regards regards the medical services to be provided to ex-servicemen. Though they have a valuable right of full and free medicare, which is a fundamental right, no concrete and effective steps had been taken by the respondents which constrained them to approach this Court by invoking Article 32 of the Constitution. According to them, keeping in view the services rendered by ex-defence personnel and the diseases sustained by them, they are entitled to necessary medical facilities. It was also their case that free and full medical facilities is part and parcel of their fundamental rights guaranteed by Part III of the Constitution as also covered by Directive Principles in Part IV of the Constitution. In several cases, this Court has held that such facilities must be provided to Government employees, past and present. According to the petiti petitione oner, r, such such facil faciliti ities es are provided provided to Governm Government ent employ employees ees and also also to exservicemen. Refusal to extend similar medical benefits to Ex-defence Ex-defence personnel personnel are thus arbitrary, arbitrary, discrimina discriminatory tory,, unreasonable unreasonable and violative violative of Articles 14, 16, 19 and 21 of the Constitution. If a law abrogates or abridges a fundamental right ( by amendment or by insertion in the 9th Schedule ), the the Cour Courtt may may exer exerci cise se its its judi judici cial al revi review ew power power and and exami examine ne it on the the touchstone of the basic structure doctrine as reflected in Article 21 read with Articles 14 and 9 by application of the "rights" and "essence of the right" tests10. Therefore, the crucial question must always be: Are the restrictions imposed on the exercise of the rights under Arts. 19(1) (a) and 19(1) (g) reasonable in view of all the surrounding circumstances? In other words are the restrictions reasonably necessary in the interest of public order under Article 19(2) or in the interest of the general public under Article 19(6)? The Indian Indian Consti Constitut tution ion under under Articl Articlee 19(1) 19(1) (a) guarantee guaranteess every every citize citizen n the right right to freedom freedom of speech and expression expression and petitioner petitioner being a leading leading TV Channel has the right to express its views and various news of National and International relevance in its edition
10
S.S.K. Niyami v. Union of India, AIR 1990 SC 2128: (1990) 4 SCC 516. Written Submission on Behalf of the Petitioner
15
and any kind of unreasonable restriction on this right will amount to the violation of the right guaranteed by the Indian Constitution11. Here by imposing the Cable Television Act, government has shown an unconstitutional method of controlling the media. Under article 19 of Indian Constitution it is promised that the right to speech and expression is guaranteed to every citizen of India.
1.2 Do Courts have the power to declare an Act of the Legislature to be invalid? 1.2.1 Invalidity of Cable Television Act The theoretical reasoning for this view can be derived from the theory in jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law). According to Kelsen, in every country there is a hierarchy of legal norms, headed by what he calls as the `Grundnorm' `Grundnorm'12 (The Basic Norm). If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail. In India the Grundnorm is the Indian Constitution, and the hierarchy is as follows: (i) The Constitution of India; (ii) Statutory law, which may be either law made by Parliament or by the State Legislature; (iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc; (iv) Purely executive orders not made under any Statute.
11
Director General, Directorate General of Doordarshan and Ors. v. Anand Patwardhan and Anr. (C.A. No. 613 of 2005) 12
Kelsen's `The General Theory of Law and State' Written Submission on Behalf of the Petitioner
16
“The gunmen were able to trawl the internet for information after cable television feeds to the two luxury hotels and office block were cut by the authorities. The men looked beyond the instant updates of the Indian media to find worldwide reaction to the events in Mumbai, Mumbai, and to keep abreast of the movements movements of the soldiers sent to stop 13 them.” - ‘How Gadgets Helped Mumbai Attackers’ By Noah Shachtman, Dangerroom, Web Magazine
Some of the facts which went unconsidered uncon sidered or left out by the government: 1. Channel Channel ‘ATV’ ‘ATV’ was was just doing doing their their duty to show true true visuals visuals of the events events to the general public as it was a matter concerning general public also. 2. This incident incident is is very differe different nt from ordinary ordinary wartime wartime reporting reporting as it was was an attack attack on the public and the public needs to be alerted. 3. Channel ‘ATV’ ‘ATV’ was just just showcasin showcasing g how weakness weakness and inabili inability ty of our defence defence and intelligent systems.
4. From the News extract given above (p6), it can be concluded that terrorist were able to trawl information even after the cable feeds were cut off. It wasn’t just two channels that are accused to have leaked the vital information regarding national security. 5. The governm government ent didn’t didn’t wait wait for the channel’ channel’ss reply to the show show cause notice notice.. The government straight away cancels the broadcasting licenses of the channel ‘ATV’ concerned. The idea of natural justice is not followed.
13
http://blog.wired.com/defense/2008/12/the-gagdets-of.html
Date: 24/01/2009 Time: 11:04 hrs Written Submission on Behalf of the Petitioner
17
“Art 13(2)14 of the Constitution ensures that instruments emanating from any source of law permanent or temporary, legislative or judicial or any other source –will pay honour to the constitutional provisions relating to fundamental rights.”15 The second clause relates to post-constitution laws and prohibits the state from making a law, law, which which eith either er take takess away away tota totall lly y or abro abroga gate tess in part, part, a fund fundam amen enta tall righ right. t. The The constitution of India empowers the Supreme Court under art 32 to protect the fundamental rights against infringement by the state. The Constitution of India provides wide Scope and application of judicial review of statutes with relevant considerations. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. A constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. Courts have the power to declare an Act of the Legislature to be invalid16. Only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt17.
1.2.2 How and when should the power of the Court to declare the Statute unconstitutional be exercised? This is a very important important question because invalidating invalidating an Act of the Legislatur Legislaturee is a grave step and should never be lightly taken. As observed by the American Jurist Alexander Bickel Bickel "judic "judicial ial review review is a counter counter majorita majoritaria rian n force force in our system, system, since since when the 14
13. Laws inconsistent with or in derogation of the fundamental rights.(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention contravention of this clause shall, to the extent of the contravention, be void.
15
Ranbir Singh, A Lakshminath, Lakshminath, LexisNexis Student Series Constitutional Constitutional Law, New Delhi, LexisNexis Butterworths, Butterworths, 2006, p195
16
Marbury v. Madison 5 U.S. (1Cranch) 137 (1803)
17
Government of Andhra Pradesh and Ors. Vs. Smt. P. Laxmi Devi Written Submission on Behalf of the Petitioner
18
Supreme Court declares unconstitutional a legislative Act or the act of an elected executive, it thus thwarts the will of the representatives of the people; it exercises control, not on behalf of the prevailing majority, but against it."18 Judicial review is strictly judicial and thus quite different from the policy-making functions of the executive and legislative branches. Full and free play must be permitted to that wide margin of considerations which address themselves only to the practical judgment of a legislative body. The legislative process, after all, is a major ingredient of freedom under government19. The legislation could be held unconstitutional only when those who have the right to make laws have not merely made a mistake (in the sense of apparently breaching a constitutional provision) but have made a very clear one, so clear that it is not open to rational question. “Constitution is not a tightly drawn legal document like a title deed to be technically construed; it is rather a matter of great outlines broadly drawn for an unknowable future.”20 In short, a Constitution offers a wide range for legislative discretion and choice. The judicial judicial veto is to be exercised exercised only in cases that leave no room for reasonable reasonable doubt. The Court can declare a statute to be unconstitutional only when there can be no manner of doubt that it is flagrantly unconstitutional, and there is no way of avoiding such decision. In Maneka Gandhi v. Union of India, it was observed that It is the solemn duty of the Courts to uphold the civil rights and liberties of the citizens against executive or legislative invasion, and the Court cannot sit quiet in this situation, but must play an activist role in upholding civil liberties and the fundamental rights in Part III. So we can conclu conclude de that that Cable Cable Televi Televisio sion n Act passed passed violates violates the provision provisionss of the constitution and can be declared void by the court of law. 18
A. Bickel, `The Least Dangerous Branch'
19
B.R. Enterprises v. State of U.P. and Ors
20
Prof James Bradley Thayer, Professor of Law of Harvard University, 'The Origin and Scope of the American Doctrine of Constitutional Law', The Harvard Law Review ,1893 Written Submission on Behalf of the Petitioner
19
1.2.3 Citizen’s Rights to Information As in the case of Dinesh Trivedi, M.P. and Ors.Vs Union of India (UOI) and Ors (1997) 4 SCC 306, it demanded the publication of Vohra committee report on criminalization of politics and as well as supporting material placed before it. The report was laid before the parliament and held; that in a democracy citizens have right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies21 of governance aimed at their welfare. 1.2.4 Restriction on freedom of speech-Art 19(2) to (6) As per constitution of India the guarantee of the rights is restricted by the constitution itself by conferring upon the state the power imposed by law, reasonable restrictions as may be necessary in the larger interest of community. The restrictions on freedom are provided in art 19(2) to (6) of the Constitution. The restrictions should be reasonable and cannot be arbitrary. The clause ‘The security of the state’ mentioned in art 19(2) in constitution is only one which tends to support the notion from the government’s side. Government accuses both the channels to have leaked the vital information to terrorist which was against the security of the state. But the fact is that both the channels never had an intention or will to act against the the natio nationa nall inte intere rest st,, but but to supp suppor ortt a larg larger er cause cause of maki making ng the the publ public ic awar awaree and and government understand their failures. The Government of India in order to save their political image had diverted the public attention by making a general opinion that it was due to the live coverage of the entire terrorist organisations which leaked vital information to terrorist which was against the security of the state. The News Broadcasters Association, which is headed by the retired Chief Justice of India J S Verma, has now drafted guidelines for self regulation.
21
The State of U.P. Vs. Raj Narain and Ors.
Written Submission on Behalf of the Petitioner
20
As per the guidelines: 1. The channels can have no live phone interviews with the terrorists 2. Or show any live interviews with the victims or security personnel, while the security operation is still going on 3. Also, Also, the channe channels ls cannot cannot show show any footag footagee that that hinder hinderss the operation operation by securi security ty agencies in any way 4. No mention should be made of the identity, identity, number and status of hostages, in an ongoing hostage situation 5. Any file file footage that is aired aired must have a date and time time clearly indicati indicating ng when the footage
was
shot
The broadcasters have also agreed on not showing blood and gory images constantly being repeated on TV channels. These guidelines are in sync with anti-terror media protocol which is already in place in several countries like the US, UK, Canada and an d Russia22.
22
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080076991
Date: 24/01/2009 Time: 10:56 hrs Written Submission on Behalf of the Petitioner
21
2. Whether the show cause notice is valid or not? 2.1 Is the show cause notice applied in a right way? A show cause notice is court order that requires a party to appear before the court and explain why a certain course of action should not be taken against it. If the party cannot convince the court or fails to appear, appe ar, then course of action is taken. As in the instant case the show cause notice1 that was issued by the Government of India through its special Secretary Served to the petitioner that their Broadcast Licenses have been cancelled forthwith as they have leaked vital information to terrorist which was against the security of the state. But in this case the petitioner, they were not allowed to appear the court to explain about the information leaked and why the license should not be cancelled. So the notice is wrong and cannot be implemented as it does not hear the petitioners point on how the action should not be taken against them. In the same way the cancellation of the license is also an inappropriate action because the petitioners have not been allowed to prove there point on why should there license not be cancelled so in continuation to the show cause notice, the canceling the license cannot be done against the petitioner. As the show cause notice is not valid so the broadcasting license cannot be cancelled as in the case of D. Dwarkaknantha Reddy Vs.Chaitanya Bharati Educational Society and Ors2.it
Written Submission on Behalf of the Petitioner
22
was held by Hon’ble Supreme Court that no opportunity of being heard was given before giving the show cause notice as it is happening in the instant case so an analogy can be drawn between the above case and the instant case. So it can be inferred from the above case that the show cause notice has become void as it does not takes the petitioners point into consideration on proving their point on why should shou ld their license should not be cancelled. The show cause notice is used wrongely in the present case so the license cannot be cancelled.
3. Whether the cancellation of license and ban on broadcast by The Ministry of Home, Government of India valid or not? 3.1 The test of Rational Nexus is not proved. The case has no element of rational nexus provided in it. This is so for the simple reason that there is no valid, logical, or a meaningful link or connection provided in the action performed and then the ‘punishment’ given. As the intention of the legislature enacted is to stop the telecast of such cases, therefore this retrospective ban does not prove to be a point of rational nexus. Furthermore the cancellation of the license is not a fair decision on their part and was not an appropriate act. As the Live Media Coverage of the attack was already banned, therefore the cancellation of the licences had proved to be of a much higher degree, unwanted and unreasonable consequence. In the case of Ajay Goswami vs.UOI and Ors23 Petitioner filed a petition in the court requesting the court to direct authorities to strike a balance between the fundamental right of freedom of speech and expression enjoyed by 23
(2007) 1 SCC 143
Written Submission on Behalf of the Petitioner
23
press and the duty of government to protect minors from abuse, exploitation and other harmful effects of such expression. Held, pictures in dispute had been published by the respondents with a view to inform the readers of the news from around the world and in India. Any steps to ban the publishing of certain newspeices or pictures would fetter the independence of free press which is one of the hallmarks of our democratic set up. up.24 Furthermore the principle of ‘Ratio Decidendi’ also holds a mention here. The principle of Ratio Decidendi is a Latin term which means’ the ground or reason of decision’. The rationale for a decision, i.e., which tells us the legal principle on which a decision is made. In this case the the rationale involved is not sound enough to cancel away the license. Wher Wheree suff suffic icie ient nt safe safegu guar ards ds in term termss of vario various us legi legisl slat atio ions ns,, norm normss and and rule ruless and and regulations are available to protect society in general and children in particular, any step to ban publishing of certain news pieces or pictures would fetter independence of free press. 25 In the case of P.Venugopal vs. UOI26 This was basically basically a case of premature premature termination. termination. Petitioner Petitioner,, the director director of All India Institute of Medical Sciences (AIIMS) immediately prior to the commencement of the added provisions and by virtue of the legislative command contained in the added provision was made to demit his office from the date of commencement of said added provision. This was proved to be case of clear discrimination. Held, if a person is appointed for tenure, principle of superannuation does not apply - Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds Curt Curtai ailm lmen entt of the the term term of five five year yearss can can only only be made made for for just justif ifia iabl blee reas reasons ons and and compliance with principles of natural justice for premature termination of the term.
24
25
Supra pg.
26
(2008)5 SCC 1 Written Submission on Behalf of the Petitioner
24
3.2 3.2 Lega Legall vali validi dity ty of Ban Ban impo impose sed d by the the gove govern rnme ment nt on Live Live Medi Mediaa Coverage. Both the news channels ‘ATV’ and ‘LTV’ are private companies defined under the section 3 of the Companies Act, 1956. Both the channels are the Cable Service27 providers who transmit or re-transmit re-transmit of any broadcast television signals through cables. In sec 19, 20, 22 of Cable Television (Networks) Regulation Act, 1995,
Sec 19. Power to prohibit transmission of certain programmes in public interest.— Where
28
[any authorized officer] , thinks it necessary
or expedient so to do in the public interest, he may, by order, prohibit any any
cabl cable e
oper operat ator or
from from
tran transm smit itti ting ng
or
re-t re-tra rans nsmi mitt ttin ing g
29
[any
prog progra ramme mme or chann channel el if, it is not not in confo conform rmity ity with with the presc prescri ribed bed 27
Cable Television (Networks) (Networks) Regulation Act, 1995 sec 2(b) “cable service" means the transmission by cables of programmes including re-transmission by cables of any broadcast television signals.
28
Substituted for ‘an officer, not below the rank of a Group `A' officer of the Central Government authorised by the State Government in this behalf’ by Cable Television Networks (Regulation) Amendment Act, 2000, with effect from 1.9.2000. ‘
29
Substituted for ‘any particular programme if it is’ by Cable Television Networks (Regulation) Amendment Act, 2000, with effect from 1.9.2000. ‘
Written Submission on Behalf of the Petitioner
25
prog progra ramm mme e code code refe referr rred ed to in sect sectio ion n 5and 5and adve advert rtis isem emen entt code code refe referr rred ed to in sect sectio ion n 6 or if it is] is] like likely ly to prom promot ote, e, on grou ground nds s of reli religi gion on,, race race,, lang langua uage ge,, cast caste e or comm commun unit ity y or any any othe otherr grou ground nd whatsoever, disharmony or feelings of enmity, hatred or ill-will between diffe differe rent nt relig religio ious, us, racia racial, l, lingu linguist istic ic or regio regional nal grou groups ps or caste castes s or communities or which is likely to disturb the public tranquility. Sec 20. Power to prohibit operation of cable television network in public public interest interest.— .—
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[1] Where Where the Centr Central al Gover Governm nment ent think thinks s it
necessary or expedient so to do in public interest, it may prohibit the operation of any cable television network in such areas as it may, by notification notification in the Official Gazette, specify in this behalf. Sec 22. Power to make rules.—(1) The Central Government may, by
notification notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) (2) In part partic icul ular ar,, and and with withou outt prej prejud udic ice e to the the gene genera rali lity ty of the the foregoing power, such rules may provide for all or any of the following matters, namely,— (a) the form of application and the fee payable under sub-section (2) of section 4; 31
[(aa)
the manner of publicising the sub subscription rates and the
periodical periodical intervals at which such subscriptions are payable under sub-section (7) of section 4A; (aaa) (aaa) the form form and manner manner of submittin submitting g report report under sub-sect sub-section ion (9) of sect sectio ion n 4A and and the the inte interv rval al at whic which h such such repo report rt shal shalll be submitted periodically under that sub-section;] (b) the program programme me code code under under secti section on 5; 5; (c) the adve advertise rtisement ment code under under sectio section n 6; 30
Inserted by Cable Television Networks (Regulation) Amendment Act, 2000, with effect from 1.9.2000.
31
Inserted by Cable Television Networks (Regulation) Amendment Act, 2002, with effect from 31.12.2002.
Written Submission on Behalf of the Petitioner
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(d) (d) the form form of registe registerr to be maint maintain ained ed by a cabl cable e operato operatorr under under section 7; (e) any other other matter matter which which is is required required to be, be, or may be, be, prescrib prescribed. ed. (3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session session immediat immediately ely followin following g the session session or the successive successive sessions sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Certain steps taken by the Government were completely against the provisions of the Cable Television (Networks) Regulation Act, 1995. 1. Governm Government ent puts a ban on Live Coverag Coveragee of Terror Terrorist ist Attacks Attacks.. Only Only an author authorize ized d officer has the authority to ban an agency from broadcasting certain programme. In the present case the officer authorized is the special secretary to the ministry of home. As per sec 19 of Cable Television (Networks) Regulation Act, 1995 goes this Central Government officer who is not below group ‘A’ rank can only be authorised by State Government only. The conflict arises regarding the issuing authority which makes the Ban void. In the present case it can noticed that ban on the Live Media Coverage of the attack were issued by Government of India. It is clear that this ban has no legal validity as it can only issued by State Governments in the Union of India.
Written Submission on Behalf of the Petitioner
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2. Acc. to sec 19 19 Cable Televisi Television on (Networks) (Networks) Regulat Regulation ion Act, 1995, 1995, to Ban any Cable Operator from transmission of certain programme, the programme needs to come within the conformity of the prescribed programme code referred to in section 5 and advertisement code referred to in section 6 or if it is likely to promote, on grounds of religi religion, on, race, race, langua language, ge, caste caste or commun community ity or any other other ground ground whatso whatsoeve ever, r, disharmony disharmony or feelings feelings of enmity, enmity, hatred hatred or ill-will between different religious, religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquility.
Programme code under sec 5 of Cable Television (Networks) Regulation Act, 1995. (1) No programme should be carried in the cable service which(a) offends against good taste or decency ; (b) contains criticism of friendly countries ; (c) contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes ; (d) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; (e) is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote anti-national attitudes. (f) Contains anything amounting to contempt of court. (g) contains aspersions against the integrity of the President and Judiciary; (h) contains anything affecting the integrity of the Nation; (i) criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country; (j)encourages superstition or blind belief; (k)denigrates women through the depiction in any manner of the figure
Written Submission on Behalf of the Petitioner
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of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals ; (l)denigrates children; (m)contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups; (n) contravenes the provisions of the cinematograph Act, 1952.
As the live broadca broadcast st of terror terror attacks attacks doesn’t doesn’t come under under any of these these categor categories ies of programme code, again it can be proven that ban applied on the live coverage of the Terror Attacks does not exist and should be terminated.
Written Submission on Behalf of the Petitioner
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3.3 Legal Validity of section 7 in Cable Television (Networks) Regulation Act,
1995
The Indian Telegraph Act 1885 is an act to amend the laws relating to telegraphs in India. Under sec 3(1) it defines telegraph as any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means. Critically assessing the definition it is clear that live cable television broadcasting comes under this definition of telegraph. Therefore live broadcasting of terror events comes under the ambit of The Indian Telegraph Act, 1885. Part 2 of the Indian Telegraph Act, 1885 deals with the regulation of powers and privileges of the Central Government of India. Sec 7(1) The Indian Telegraph Act, 1885 which deals with the power of Central Government to make laws and sec 7(2)32 to make rules consistent with the Act for the conduct of all or any telegraphs, established, maintained or worked by the Government or by persons licensed under this Act. Clause (e) thereof provides that the rules may also be framed in regard to the conditions and restrictions, subject to which any telegraph line, appliance or apparatus for telegraphic communication shall be established, maintained, worked, repaired, transferred, shifted, withdrawn or disconnected.
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Bharat Sanchar Nigam Ltd. and Anr.Vs. BPL Mobile Cellular Ltd. and Ors 2008(8)SCALE106 Written Submission on Behalf of the Petitioner
30
By a simple examination it is clear that it doesn’t provides with a single provision to make laws for banning a particular broadcast or cancellation of license due to the broadcast of Live Terror attacks. It can be concluded that the whole section 7 in Cable Television (Networks) Regulation Act, 1995 can be declared invalid. In affect the ban imposed and cancellation of licenses can be revoked.
PRAYER
In the light of the arguments arguments advanced, authorities authorities cited and facts presented, presented, this Hon’ble Hon’ble Court may be pleased to adjudge and declare that: (1) (1) The The pres presen entt matt matter er is inadm inadmis issi sibl blee sinc sincee it is a wron wrong g impl implic icat atio ion n of the the Cabl Cablee Television Television Act and doesn’t doesn’t hold any meanings in cognizance of the ‘Right to Freedom’ of Press. (2) Declare that the cancellation of licences of the Petitioners as void for the simple reason of it being in contradiction with the principle of rational nexus. (3) The show cause notice which is issued has no basis for the reason that it supports the law to take an action without giving the other party a chance of being heard.
And For This The Petitioner Shall Duty Bound Ever Pray. Pray.
Written Submission on Behalf of the Petitioner
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NOTES
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Written Submission on Behalf of the Petitioner
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