media moot memorial final

IN THE HON’BLE SUPREME COURT OF INDIA

AT NEW DELHI

WRIT PETITION NO. ________/2009

IN THE MATTER OF

ATV AND LTV………………………………………………………….PETITIONERS

VERSUS

GOVT. OF INDIA……………………………………………………….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

INDEX OF AUTHORITIES……………………………………………………………4

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

STATEMENT OF FACTS ………………………………………………………………8

STATEMENT OF ISSUES………………………………………………………………9

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

ARGUMENTS…………………………………………………………………………..11

PRAYER…………………………………………………………………………………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 Section

Supp. Supplement

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

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

1


Bakshi P.M, “The Constitution of India”, 7th edition, 2006, Univeral Law Publishing Co.

Pvt. Ltd, New Delhi

Bakshi, Ranbir, A.Laxminath, “Constitutional Law”, 2006, Lexis Nexis Butterworths,

New Delhi.

Black, Henry Campbell, “Black’s Law Dictitionary”, 6th edition, 1990, West Publishing

Company, Minnesota.

Devidas, T., Mallar, V.S. and Vijaykumar, V., Cases and Materials on Constitutional

Law-I: Centre State Relations and Federalism, 1998, National Law School Institute

University, Bangalore.

Jain, M.P., ‘Indian Constitutional Law’, 5th edition, 2003, Wadhwa & Company, Nagpur.

Pandey, J.N, “Constitutional Law of India”, 44th ed., 2007, Central Law Agency,

Allahabad.

Statutes

1. Cable Television Networking (Regulation) Act, 1995

2. The Cable Television Network Rules, 1994

3. Indian Telegraph Act, 1885

4. The Constitution of India, 1950.

Websites


1. www.manupatra.com

2. www.indiankanoon.com

STATEMENT OF JURISDICTION


The Petitioners humbly submit before the Hon’ble Supreme Court of India, 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.

STATEMENT OF FACTS


1. ‘Ace’ Television Private Limited and ‘Leading’ Television Private Limited are the two

production houses of the leading news channels ‘ATV’ and ‘LTV’ respectively.

2. During the recent terror attacks in Mumbai, both the channels did an extensive Live Coverage

of the entire terror attacks which included the disclosure of vital 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. Subsequent to the attack, Cable Television Act was passed which was applied 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 against 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?

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?

1.1 Whether fundamental rights, Article 19(1) (a) are violated or not?

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

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


1. Whether the Cable Television Act is valid or not?

1.1 Whether fundamental rights, Article 19(1) (a) are violated or not?

A law made by the Parliament can be struck down by courts on two grounds and two grounds

alone: (1) lack of legislative competence; and (2) violation of 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 national security or any

other matter affecting the nation’s integrity. But the right is limited and particularly in the matter

2 L.I.C. v. Manubhai Shah, AIR 1993 SC 171

3 Express 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.


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 our country.

In the case of Ajay Goswami v. Union 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 steps to ban

publishing of certain news pieces or pictures would fetter 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 subscribers from all sections. They

have an internal regulatory system to ensure no objectionable photographs or a matter gets

published. They were conscious of their responsibility towards children but at the same time it

would be inappropriate to deprive the adult population of the entertainment which was well

within the acceptable levels of 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 Devi7,

6 (2007) 1 SCC 143

7 (2008) 4 SCC 720


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 contained in the proviso to

Section 47A is arbitrary and unreasonable violating the fundamental rights guaranteed in Articles

14 and 19(1)(g).

In the case of Arun Kumar and Ors.vs. Union of India (UOI) and Ors 8,

A question of formulating contributory scheme for ex-servicemen was involved who were

claiming full medical facility. The Government of India had constituted a Committee headed by

Hon'ble Mr. Justice S. Mohan (Retd.) to look into the Report of the Pay Revision Committee for

Public Sector Executives. The Committee considered various issues including issues as to pay

scales, perquisites etc., of employees of Public Sector 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 of Ex-Servicemen Associations & Ors. vs Union Of India & Ors9,

The grievance of the petitioner is that though several attempts had been made by the

Associations, the Government of India had never taken the matter seriously as 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

8 (2006) 205 CTR (SC) 193

9 (2006) 8 SCC 399


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 petitioner, such facilities are

provided to Government employees and also to ex-servicemen. Refusal to extend similar

medical benefits to

Ex-defence personnel are thus arbitrary, discriminatory, unreasonable and 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 Court may exercise its judicial review power and examine it on 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 Constitution under Article 19(1) (a) guarantees every citizen the right to freedom of

speech and expression and petitioner being a leading TV Channel has the right to express its

views and various news of National and International relevance in its edition 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?

10 S.S.K. Niyami v. Union of India, AIR 1990 SC 2128: (1990) 4 SCC 516.

11 Director General, Directorate General of Doordarshan and Ors. v. Anand Patwardhan and Anr. (C.A. No. 613 of 2005)


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'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.

“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, and to keep abreast of the movements of the soldiers sent to stop them.”13

- ‘How Gadgets Helped Mumbai Attackers’

By Noah Shachtman, Dangerroom, Web Magazine

Some of the facts which went unconsidered or left out by the government:

1. Channel ‘ATV’ was just doing their duty to show true visuals of the events to the general

public as it was a matter concerning general public also.

12 Kelsen's `The General Theory of Law and State'

13 http://blog.wired.com/defense/2008/12/the-gagdets-of.html

Date: 24/01/2009 Time: 11:04 hrs


2. This incident is very different from ordinary wartime reporting as it was an attack on the

public and the public needs to be alerted.

3. Channel ‘ATV’ was just showcasing how weakness and inability of our 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 government didn’t wait for the channel’s reply to the show cause notice. The

government straight away cancels the broadcasting licenses of the channel ‘ATV’

concerned. The idea of natural justice is not followed.

“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,

which either takes away totally or abrogates in part, a fundamental right. 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

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 of this clause shall, to the extent of the contravention, be void.

15 Ranbir Singh, A Lakshminath, LexisNexis Student Series Constitutional Law, New Delhi, LexisNexis Butterworths, 2006, p195

16 Marbury v. Madison 5 U.S. (1Cranch) 137 (1803)


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 question because invalidating an Act of the Legislature is a grave step

and should never be lightly taken. As observed by the American Jurist Alexander Bickel

"judicial review is a counter majoritarian force in our system, since when the 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

veto is to be exercised only in cases that leave no room for reasonable doubt. The Court can

17 Government of Andhra Pradesh and Ors. Vs. Smt. P. Laxmi Devi

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


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

conclude that Cable Television Act passed violates the provisions of the constitution and can be

declared void by the court of law.

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 national interest,

but to support a larger cause of making the public aware and government understand their

failures.

21 The State of U.P. Vs. Raj Narain and Ors.


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.

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, the channels cannot show any footage that hinders the operation by security agencies in any way

4. No mention should be made of the identity, number and status of hostages, in an ongoing hostage situation

5. Any file footage that is aired must have a date and time clearly indicating 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 Russia22.

22 http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080076991

Date: 24/01/2009 Time: 10:56 hrs


http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080076991

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, 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 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 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

23 (2007) 1 SCC 143


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 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.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.

Where sufficient safeguards in terms of various legislations, norms and rules 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 a case of premature termination. Petitioner, the 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 - Curtailment

of the term of five years can only be made for justifiable reasons and compliance with principles

of natural justice for premature termination of the term.

24

25 Supra pg.

26 (2008)5 SCC 1


3.2 Legal validity of Ban imposed by the government on Live Media 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 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 cable operator from transmitting or re-transmitting 29[any

programme or channel if, it is not in conformity with the prescribed programme code referred

to in section 5and advertisement code referred to in section 6 or if it is] likely to promote, on

grounds of religion, race, language, caste or community or any other ground whatsoever,

27 Cable Television (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. ‘


disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic

or regional groups or castes or communities or which is likely to disturb the public tranquility.

Sec 20. Power to prohibit operation of cable television network in public interest.— 30[1]

Where the Central Government thinks it necessary or expedient so to do in public interest, it

may prohibit the operation of any cable television network in such areas as it may, by

notification in the Official Gazette, specify in this behalf.

Sec 22. Power to make rules.—(1) The Central Government may, by notification in the Official

Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of 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 subscription rates and the periodical intervals at which

such subscriptions are payable under sub-section (7) of section 4A;

(aaa) the form and manner of submitting report under sub-section (9) of section 4A and the

interval at which such report shall be submitted periodically under that sub-section;]

(b) the programme code under section 5;

(c) the advertisement code under section 6;

(d) the form of register to be maintained by a cable operator under section 7;

(e) any other matter which is required to be, or may be, prescribed.

(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 immediately following the session or the successive 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.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.


Certain steps taken by the Government were completely against the provisions of the Cable

Television (Networks) Regulation Act, 1995.

1. Government puts a ban on Live Coverage of Terrorist Attacks. Only an authorized 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.

2. Acc. to sec 19 Cable Television (Networks) Regulation Act, 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

religion, race, language, caste or community or any other ground whatsoever,

disharmony or feelings of enmity, hatred or ill-will between different religious, racial,

linguistic or regional groups or castes or communities or which is likely to disturb the

public 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 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 broadcast of terror attacks doesn’t come under any of these categories 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.


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 electro-magnetic 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

32 Bharat Sanchar Nigam Ltd. and Anr.Vs. BPL Mobile Cellular Ltd. and Ors 2008(8)SCALE106


telegraph line, appliance or apparatus for telegraphic communication shall be established,

maintained, worked, repaired, transferred, shifted, withdrawn or disconnected.

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 advanced, authorities cited and facts presented, this Hon’ble Court

may be pleased to adjudge and declare that:

(1) The present matter is inadmissible since it is a wrong implication of the Cable Television Act

and 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.


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