environmental law and petitioner

TABLE OF CONTENTS

Participant Code……..…..

INTERNAL MOOT COURT COMPETITION, 2013

Maya & Anr. v. Union of Cidia & Anr.

WITH

Jan Mukthi Andolan v. Union of Cidia

&

Ms. Salma v. News Broadcasters Association of Cidia

Writ Petition under Article 32 of the Constitution of Cidia

Memorial for the petitioner

1Memorial for the Petitioner

TABLE OF CONTENTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS - - - - - - 2

INDEX OF AUTHORITIES - - - - - - 5

BOOKS AND COMMENTARIES - - - - - 5

CASES CITED - - - - - - - - 6

ACTS, RULES AND INSTRUCTIONS- - - - -

7

STATEMENT OF JURISDICTION - - - - - 8

STATEMENT OF FACTS - - - - - - 9

QUESTIONS PRESENTED - - - - - - 11

SUMMARY OF PLEADINGS - - - - - - 12

PLEADINGS AND AUTHORITIES - - - - - 15

PRAYER - - - - - - -

28

1Memorial for the Petitioner

LIST OF ABBREVIATIONS


1. &: And

2. A.P. : Andhra Pradesh

3. AIR: All India Reporter

4. All. : Allahabad

5. Art. : Article

6. Bom. : Bombay

7. Cal. : Calcutta

8. Co. : Company

9. Corp. : Corporation

10. Cri. : Criminal

11. Cri. L.J./ Cr L.J. : Criminal Law Journal

12. DB : Division Bench

13. Del. : Delhi

14. Dr. : Doctor

15. Ed. / Edn. : Edition

16. Gau. : Guwahati

17. Guj. : Gujarat

18. HC : High Court

19. Hon’ble: Honorable

20. Kar: Karnataka

21. Ker: Kerala

22. Lah. : Lahore

2Memorial for the Respondent


23. Ltd.: Limited

24. M. P. : Madhya Pradesh

25. Mad. : Madras

26. N.C.T. : National Capital Territory

27. Nag. : Nagaland



28. No. : Number

29. NOC :Notes On Cases

30. Ori. :Orissa

31. Ors. : Others

32. p. : Page

33. pp. : Pages

34. Punj. : Punjab

35. Pvt. : Private

36. Raj. : Rajasthan

37. SC: Supreme Court

38. SCC: Supreme Court Cases

39. SCR: Supreme Court Reports

40. Sec. : Section

41. Supp. : Supplementary

42. T.N: Tamil Nadu

43. U.P. : Uttar Pradesh

44. US/USA: United States of America

45. v. : Versus

46. Vol. : Volume


INDEX OF AUTHORITIES


BOOKS AND COMMENTARIES

1. Arvind P Datar, Commentary on the Constitution of India, Vol I, II &

III, Second Edition 2001, Wadhwa & Company Nagpur.

2. Chaudhari & Chaturvedi’s Law of Fundamental Rights, Fourth Edition,

Reprint 2007, Delhi Law House.

3. Chaudhari’s Law of Writs, Fifth Edition 2003, Law Publishers

(India) Private Limited.

4. Dr. J. N. Pandey, Constitutional Law of India, Forty Fourth Edition

2007, Central Law Agency.

5. Dr. R.G Chaturvedi’s, Law of Writs and Other Constitutional Remedies, 3rd Ed., Bharat Publications Ltd.

6. Durga Das Basu, Law of the Press, (4th Ed. 2002), Wadhwa

Nagpur.

7. Durga Das Basu, Shorter Constitution of India, Thirteenth Edition,

Reprint 2006, Wadhwa Nagpur.

8. G Ramachandran, Law of Writs, Vol I & II, Sixth Edition,

Eastern Book Company.

9. H. M. Seervai, Constitutional Law of India, Vol 1 & 2, Fourth

Edition, Reprint 2006, Universal Law Publishing Company.

10. Justice B L Hansaria’s Writ Jurisdiction, Third Edition, Reprint

2006, Universal Law Publishing Company.

6


11. Liberty, Equality & Justice: Struggles for a New Social Order, Edited by

S. P. Sathe & Sathya Narayan, First Edition 2003, Eastern

Book Company Pvt. Ltd.

12. M P Jain, Indian Constitutional Law, Fifth Edition, Reprint

2003, Wadhwa & Company Nagpur.

7


13. M.N Kaul & S. L Shakdher, Practice and Procedure of Parliament,

6th Ed., Lok Sabha Secretariat, Metropolitan Books Co. Pvt.

Ltd.

14. P Ishwara Bhat, Fundamental Rights: A Study of their

Interrelationship, First Edition 2004, Eastern Law House.

15. P M Bakshi, the Constitution of India, Ninth Edition 2009,

Universal Law Publishing Company.

16. Sebastian Paul, Forbidden Zones: Law and the Media, 2010,

Lavanya Books, Cochin.

17. Subhash C. Kashyap, Parliamentary Procedure- Law, Privileges,

Practice and Precedents, statement of facts, Vol. 1, Universal Law

Publishing Co. Pvt. Ltd.

18. WILSON, Cases and Materials on Constitutional Law, 1966.

19. V N Shukla, Constitution of India, Tenth Edition, Reprint

2003, Eastern Book Company.

CASES CITED

1. RomeshThappar v State of Madras, Air 1950 SC 264

2. X v Hospital Z [(1998) 8 SC 264] is also a case of similar

object

3. (1978) 1 scc 248 : AIR 1978 SC 597, 620

4. Francis coralie v. union territory of Delhi (1981) 1 SCC 608

: AIR 1981 SC 746, 753

5. Munn v. Illinois 94 US 113.

8


6. R. Rajagopal v. State of T.N. (1994) 6 SCC 632.

7. Mr. x and hospital z (1998) 8 SC 264

8. Govind v state of MP; PUCL v UOI AIR 1991 SC 207,211: it is

accepted as part of right to life, if facts constitute

privacy matter art. Is attracted

9. (state of Bihar v Lal Krishna Advani ,(2003) 8 SCC 361

10. Rudul shah v State of Bihar (1983) 4 SCC 141 ;

Bhimsingh v State of J&K AIR 1986 SC 494

11. Smt. Nilabatibehra v state of Orissa 1993 AIR 1960

12. ManekaGandhi v UOI, (1978) AIR 597

13. Commissioner of police v registrar, Delhi HC,

14. Rattiram&ors v state of MP, (2012) 4 SCC 576

15. Rattiram&ors v state of MP, (2012) 4 SCC 576

16. Ankul Chandra Pradhan v uoi, 1996 (6) SCC 354.

17. Bodhisattwa gautam v subra chakraborty, (1996) 1 SCC

490: AIR 1996 SC 922, MC Mehta v Kamalnath, (2000) 6 SCC 213

: AIR 2000 SC 1997

18. Reliance petrochemical ltd. V proprietors of Indian

express newspapers Bombay (p) ltd. AIR 1989 SC 190

19. Sahara India Real estate corp v SEBI, MANU/SC/0735/2012

20. Mohammed Shahabuddin v state of Bihar, (20110) 4 SCC

653

21. Lakshmi Ganesh Films and Ors., 2006 ALD 374

22. Sakal papers (p.) Ltd. V. UOI, 1962 AIR 305

23. Kedarnath v state of Bihar, AIR 1963 SC 812,

24. Kameshwar Rao v state of Bihar, AIR 1962 SC 1166

9


25. MRF Ltd. V Inspector Kerala govt, (1998) 8 SCC 227

26. State of U.P. vs. Kaushailiya, (1964) 4 SCR 1002 = AIR

1964 SC 416)

27. Sudheer Chandra v Tata Iron and Steel. Co. Ltd, AIR

1984 SC 1064

28. Khyebari tea Co, ltd v. State of Assam, AIR 1964 SC 925

29. Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC

1471

ACTS, RULES AND INSTRUCTIONS

1. Code of Criminal Procedure, 1973

2. Constitution of India

3. Supreme Court Rules, 1966

4. Supreme Court Procedure and Practice Information Handbook

10


STATEMENT OF JURISDICTION

The respondent, Union of Cidia, hereby submits its written

response to the petition filed by the petitioners Maya and Mohini

and Jan mukthi Andolan hereby submit to the jurisdiction of the

honorable court

The respondent, NBAC Hereby submits its written response to

petition filed by Salma.

11


STATEMENT OF FACTS

Saurashtra is a state in the union of cidia. Crombay, the

capital city a metropolitan area with a booming economy and

a population of around 20 million.

With increasing illegal activities the state appointed a

committee to conduct an enquiry into the reasons behind the

sudden increase .The findings showed that a large numbers of

unlicensed bars operating illegally and without complying

with the rules framed under section 33 of the crombay police

act, 1951.it was also revealed that under the guise of dance

bar young girls were being trapped into trafficking and

prostitution.

12


To tackle the menace, the Saurashtra legislative assembly

passed an amendment act 2014 which inserted sections 33a and

33b in the crombay police act, 1951.

Empowered police to take steps for the closure of dance bars

and due to this many women lost their employment and no

alternative livelihood is provided by law to these women’s.

A survey report published by Saurashtra patrika, indicated

that the ban could adversely affect the earning capacity of

around 20 thousand women in Saurashtra, among them almost

75% were the sole breadwinners of their family.

On 10th January 2014 a news channel of broadcasting

corporation of cidia carried a news report in the ‘National

news at 9’ on the state of affairs before and after closure

of the dance bars in the state of Saurashtra.

The objective of news is to portray the sad state of affairs

of who were earlier employed as dancers in the dance bars.

The news item also contained video visuals of two bar

dancers named Maya and mohini dancing and soliciting while

they were employed in the bars. Names were not revealed but

visuals were clear enough to reveal the identity of the two

women. The video which lasted for two minutes revealed the

young dancers in full zeal and vigour.

On 13th January Maya and Mohini moved to Supreme Court of

cidia under art. 32 of the constitution of cidia alleging

that the broadcasting corporation of cidia through video

infringed their right to privacy.

13


They prayed to the court to direct union of cidia to pay

them compensation and also post and apology scroll

continuously for two days in all channels of broadcasting

corporation of cidia.

On the day the Legislative assembly passed the Crombay

police (Amendment) Act 2014, Ms Salma, a financial

consultant at a private firm in the city of crombay, tweeted

her discontent on the governmental move and criticized it as

‘hasty and unmindful’ decision. Her comment went viral

overnight, within hours she was arrested by crombay police

and alleged her of committing an offence under section 66A

of information Technology Act, 2000. Soon media took over

the issue, and projected it as an illustrative episode of

the breakdown of rule of law in the state of Saurashtra.

At the backdrop of this intense sentimental outcry the

crombay metropolitan magistrate took cognizance of offence,

and thereafter trial commenced after complying with all the

procedural requirements specified by laws in force.

From the day of arrest national Television channels carried

updated and ‘Breaking News’ reports on every minute detail

of Salma’s case. Ms Salma moved a writ petition in the

supreme court of cidia alleging that the fairness of her

trial has been prejudiced by the unusual participation of

media. According to her there has been unwarranted coverage

of her case by media through socio-political discussions and

14


manipulation of facts, which has potential to detrimentally

affect the judicial reasoning.

She prayed for the issuance of a postponement order

temporarily gagging the media from interfering in the trial

and reporting on the case.

In the light of the case of Salma, Jan mukthi andolan, an

NGO, based in crombay filed a petition under article 32 of

the cidia challenging the constitutional validity of section

66 A of the information technology act 2000.

QUESTIONS PRESENTED

CASE I. QUESTIONS

15


1. Whether Writ petition under Art. 32 is maintainable?

2. Is right to privacy comes under art. 21 of Indian

constitution?

3. Is there breach of privacy?

4. Is there any public interest in breach of privacy?

5. Are they entitled for compensation?

CASE II. QUESTIONS

1. Is right to fair trial is a fundamental right under art. 21

of Indian constitution?

2. The writ is maintainable or not.

3. Postponement order under scope of art. 32

4. Justifiable regulation under art. 19

CASEIII. QUESTIONS

1. Sec. 66A violates freedom of speech and expression under

art. 19(1) (a)?

2. Was duty violated by petitioner?

3. Whether Right to equality is violated?

4. Whether it Grants unfettered powers on the executive?

5. The onus is on the state to prove constitutionality?

16


CASE I. SUMMARY OF PLEADINGS

I.RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT AND PETETION

MAINTAINABLE

The court in series of cases have recognized right to privacy as

a fundamental right under Art.21 of the constitution. There has

been a VIOLATION of fundamental rights from the respondent’. It

should be noted that respondent owed a duty to the petitioner not

reveal the identity but the duty was not fulfilled. As there has

been a clear violation of a fundamental right and privacy being a

fundamental right under art.21, petition is maintainable under

Art.32

II. COMPENSATION CAN BE AWARDED FOR A BREACH OF Art.21

The power of the court is not restricted prohibitory orders. But

remedy can be also availed. There has been series of cases were

the honorable court has resolved in favor of grant of17


compensation. It is to be noted that a 2 day scroll of apology is

also sought for as there has been a great harm which the

petitioners were subjected to.

CASE II. SUMMARY OF PLEADINGS

I. THE PETITION IS MAINTAINABLE UNDER ART.32 OF THE CONSTITUTION

“Right to fair trial” is important part of right to life

guaranteed under constitution. It has been held by series of

cases that interference in court proceeding should never be done.

. A petition against NBAC is maintainable because NBAC, Performs

an important public function of regulating the news channels.

Though NBAC is a private association it qualifies to be state

under Art.12 of the constitution in regard to the public function

it performs. Art.21 can even be invoked against private parties

II. POSTPONMENT ORDER IS JUSTIFIABLE

If the administration of justice is subjected to interference by

media then introducing a prohibitory order is well within the

ambit of jurisdiction of the court.

18


CASE III. SUMMARY OF PLEADINGS.

I. SECTION 66 A IS IN VIOLATION OF ARTICLE (19) (1) (a).

It is to be noted that section 66 A is in violation of article 19

(1) (a) of the constitution, there has been a clear violation of

the same by the said section.66 A

II. SECTION 66 A IS IN VIOLATION OF ARTICLE 14

It is to be noted that section 66 A is clearly in violation of

art 14 of the constitution as it grants an unfettered and

unjustified power to the executive to decide upon the

interpretation of different terms.

III. SECTION 66 A IS IN VIOLATION OF ARTICLE 21

Right to life means not a mere animal existence and right to

speak, know and spread and nurture idea are all part of this

particular right, there is a clear violation.

19


PLEADINGS AND AUTHORITIES

I. WHETHER WRIT PETITON UNDER ART. 32 IS MAINTAINABLE?

The right to privacy is a part of art. 21 of Indian

constitution and writ is maintainable under art. 32. The right

to take proceedings by original petition straight in the

Supreme Court for the enforcement of the fundamental rights is

guaranteed in art. 32. Patanjali sastri, j., regarded itself

‘as the protector and guaranteer of fundamental rights’. The

present case comes under the scope of art. 32 as there is

infringement of fundamental right. ‘It cannot consistently

with the responsibility laid down upon it, refuse to entertain

application seeking protection against fundamental rights.’1

Subba Rao, j. said right to personal liberty is comprehensive

and right to move freely is an attribute of personal liberty.

It is said that the freedom to move freely is carved out of

personal liberty and therefore the expression personal liberty

1RomeshThappar v State of Madras, Air 1950 SC 26420


in art 21 excludes that attribute. In our view both are

independent rights though there is overlapping. There is no

question of one being carved out of another. The fundamental

right of life and personal liberty have many attributes and

some of them are found in art. 19. If a person’s fundamental

right is violated the state can rely upon law to sustain the

action.2

He held that right to privacy is essential ingredient of

personal liberty’ and that the right to personal liberty is a

right of an individual to be free from restrictions or

encroachments on his person whether those restrictions are

directly imposed or indirectly brought about by calculated

measures’3

The court in many cases affirmed that right to privacy is part

of art. 21, as in case of R.Rajagopal v State of T.N4, PUCL v

UOI5, neera mathur v LIC6 etc.

Broadcasting corporation of cidia is a statutory body so by

placing reliance on the case Electricity board, Rajasthan v.

Mohan Lal which says other authorities within art. 12 include

all authorities created by the constitution or statute on whom

powers are conferred by law comes under the definition of

state. So now it’s hardly a question whether we can seek

2 Ibid. at p 13053 Ibid. at p. 13064(1994) 6 SCC 6325AIR 1991 SC 207, 2116AIR 1992 SC 392 ; X v Hospital Z [(1998) 8 SC 264] is also a case of similar object

21


remedy under art. 32 of Indian constitution against

broadcasting corporation.

The public function performed by broadcasting corporation also

II. Is right to privacy comes under art. 21 of Indian

constitution?

The fundamental right granted under art. 21 are of

comprehensive nature and have many attributes or many rights

for the betterment of human life. Justice Bhagwati in Maneka

Gandhi v. Union of India7 said Article 21, though couched in

negative language confers on every person the fundamental

right to life and personal liberty which has become an

inexhaustible source of many other rights. It is difficult to

define and mark out areas which are covered under art. 21 as

it have wider applications and involved ‘the right to live

with human dignity’8 and ‘expressing oneself in diverse

forms’9

The term life here is used meant ‘something more than animal

existence’10. The court gave every person right to ‘safeguard

the privacy of his own’11 and ‘no one can publish anything

concerning anything without his consent whether truthful or

otherwise and whether laudatory or critical’. The right to

privacy is implicit in the right to life and liberty

guaranteed to the citizen of this country by art. 21. It is7 (1978) 1 scc 248 : AIR 1978 SC 597, 6208 Francis coralie v. union territory of Delhi (1981) 1 SCC 608 : AIR 1981 SC 746, 7539 Ibid. at p. 75310 Munn v. Illinois 94 US 113.11 R. Rajagopal v. State of T.N. (1994) 6 SCC 632.

22


‘right to be let alone.’ This right is an part of right to

life and liberty and this is not only implied right in India

but in US also it is an implied right as in decision of Jane

Roe v. Henry Wade, 410 US 113, the supreme court said

‘constitution does not explicitly mention this as a right but

SC recognises that a right of personal privacy does exist

under constitution.’12

Privacy is defined by Supreme Court in sharda v dharampal as

‘the state of being free from intrusion or disturbance in

one’s private life or affairs.’ The issue of right to privacy

was first raised in kharak Singh case and later in Govind case

in kharakSingh’s case justice subba Rao for minority said

right to privacy is implied from right to life and liberty

under art. 21 and an essential part for dignified life. He

said ‘right to privacy is an essential ingredient of personal

liberty’ and the right of an individual to be free from

restrictions or encroachments on his person, whether those

restrictions or encroachments are directly or indirectly

imposed or indirectly brought about by calculated measures’.13

The right to privacy emanate from totality of the

constitutional scheme under which we live i.e. from art. 21

and art. 19 that it is fundamental in nature. This right is

not absolute as it is said that ‘fundamental right must be

subject to restriction on the basis of compelling public

12Mr. x and hospital z, (1998) 8 SC 264 ;European convention on human rights also recognises this right under art.813 Kharak sing v state of UP, AIR 1963 SC 1295

23


interest.’14 The case we are dealing with now is different from

cases of. Kharak Singh and rajagopal.In this case there is

intrusion of media in the life of two persons wrongfully and

secondly the telecast covered a larger public so damage is

irreparable and the sensitivity of the case increases as the

two persons were two women’s. So it’s a case of victimization

and indecent representation of women and damaging their

reputation and dignity.

In R. rajagopal v state of T.N15 said that right to privacy is

implicit in the right to life and liberty guaranteed to

citizens of this country by art. 21. It is a right to be let

alone and a citizen has a right to safeguard the privacy of

his own, his family, marriage, procreation, motherhood,

childbearing among other matters’ and nobody is allowed to

publish anything laudatory or critical without consent of

person involved. Employment comes under other matters and

protected as other aspects which covers under right to life.

The privacy rights are given to everyone and supreme court in

decision of Maharashtra v Madhukar Narayan maradikar16 said

‘even a women of easy virtue is entitled for protection under

right to privacy and no one can evade her privacy as and when

likes.’ The court also instruct the state not to make private

information about individuals public and violate privacy’,

14 Govind v state of MP (1975) 2 SCC 148; PUCL v UOI AIR 1991 SC 207,211: it is accepted as part of right to life, if facts constitute privacy matter art. Is attracted15 (1994) 6 SCC 63216 (1991) 1 SCC 57

24


here it is urged from state for not to derogate the right and

said ‘it is responsibility of state to uphold them against the

actions of others in society.’

III.IS THERE BREACH OF PRIVACY

There is hardly any doubt now that whether there was a breach

of privacy as it is clearly stated in R. rajagopal and State

of T.N. that right to privacy is right to be let alone’, right

to safeguard against privacy of his own and many other matters

necessary for life’ and employment is also such matter which

covers under the ambit of right to life and privacy of self ’.

In this case the respondent violated the basic facts of human

rights and basics of fundamental rights provided under Indian

constitution. And by this they violated right to life of

petitioner and in case of manekagandhi17sarkaria j., rephrased

art. 21 in the following words ‘No person shall be deprived of

his life or personal liberty except according to fair, just

and reasonable procedure established by valid law.’

The sensitivity increases as victims in this case are women

and they may turned out to be the victims of social ostracism

as in case it is stated that in the guise of dance bars

prostitution and illegal trafficking are developing, so they

may be portrayed as prostitutes.

The respondents through their act have not only intruded into the

private space of the petitioners but subjected them to gross

indignity and violated their right to reputation18

171978 AIR 59718 State of Bihar v Lal Krishna Advani ,(2003) 8 SCC 361

25


It is the duty of govt. to ensure circumstances of safety

which inspires them to discharge their functions in their

employment.

IV. IS THERE PUBLIC INTEREST IN BREACHING RIGHT TO PRIVACY?

Public interest is a larger issue and right to privacy can be

compromised for this but the act of respondent do not

justifies this act. Video is a necessary thing for

broadcasting on a news channel and it is an essential for

sustaining democracy as it gives people opportunities to make

their opinion on issues broadcasted. But to mistake which was

made was showing clear video as showing the face of two women

do not serve any purpose for public order and safety and

neither it is a crime as it is nowhere written that doing

entertainment is a crime not it is in national interest. The

two minute video showing that women working in dance bars are

trapped into prostitution and trafficking so these girls will

suffer from victimization and ostracism by this act the

respondent not only lowered the dignity but also violated

their right to privacy by telecasting them in course of

employment i.e. dancing, which is of no public use and of no

public interest

V. ARE THEY ENTITLED FOR COMPANSATION

The writ under 32 is entitled for compensation as the effect of

art. 32 is not injunctive and compensation can be granted under

it. The petitioner suffered from breach of right to privacy and

26


the court has power to order for compensation for the

infringement of right to privacy. ‘the power of court is not only

injunctive in ambit, that is preventing the infringement of a

fundamental right, but it is also remedial in scope and provides

relief against a breach of fundamental right already committed’19

The claim in public law for compensation for breaching

fundamental right, the protection for which is guaranteed in the

constitution is an acknowledged remedy for enforcement and

protection and based on strict liability principle.20 The

respondent may claim the availability of other civil and

efficacious remedies than reliance can be made on

smt.Nilabatibehra, sps rathore v state of Haryana21, it is clear

from the above cases that whenever the facts are not in dispute

writ can award compensation, if there is negligent from part of

respondent and infringement of fundamental right. Respondent is

bound by the regulatory guidelines of ministry of information and

broadcasting that they cannot show the faces of victims they have

to make the faces blurred. In this case the women will become the

victim of social ostracism and harassment and it lowered the

dignity and reputation.

CASE II

19Rudul shah v State of Bihar (1983) 4 SCC 141 ; Bhimsingh v State of J&K AIR 1986 SC 49420 Smt. Nilabatibehra v state of Orissa 1993 AIR 196021 (2005) 10 SCC 1

27


I. Is right to fair trial is a fundamental right under art. 21 of

Indian constitution?

The word ‘fair trail ‘is defined in kalvani baskar (Mrs.) v. M.S.

Sampoornam (Mrs.)22 it was said that fair trial includes ‘fair

and proper opportunities allowed by law to prove her innocence.’

Law for people not getting fair trial become an instrument of

injustice and there are helpless and despairing victims of the

callousness of legal and judicial system.

There are various aspects of right to fair trial. These include

an adverbial trial system, presumption of innocence, independent

judges, and knowledge of accusation, trial and evidence in the

presence of the accused, adequate legal representation to respond

to the charges. The right to fair trial has been interpreted to

be one of the implicit rights contained within the right life

under art. 21 of the constitution of India.

The Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh

& Anr vs. State of Gujarat23 has held that ‘the principle of fair

trial now informs and energizes many areas of the law. It is

reflected in numerous rules and practices…. Fair trial obviously

would mean a trail before an impartial judge, a fair prosecutor

and atmosphere of judicial clam. Fair trial means a trail in

which bias or prejudice for or against the accused, the witness,

or the cause which being tried is eliminated.’

The concept of a fair trial cannot be limited to statute and the

courts have gradually expanded it to include various aspects of

22 (2007) 2 SCC 25823 (2004) 4 SCC 158

28


criminal procedure. For instance the Supreme Court has also in

the past transferred cases from one state to another when it is

reasonably anticipated that the accused will not be afforded a

fair trial or the court process may be interfered with by

extraneous considerations.

Art. 10 of universal declaration of human rights also empower an

individual for full equality to a ‘fair and public hearing by an

independent and impartial tribunal’

The right to life is comprehensive in nature and should not be

read in literal sense and includes the right to fair trials an

integral part.24 Assurance of a fair trial is first imperative of

the dispensation of justice.25

’

A fair trial is required to be conducted in such a manner which

would totally ostracize injustice, prejudice, dishonesty and

favoritism.26The criminal justice administration system in India

places human rights and dignity for human life at a much higher

pedestal. In our jurisprudence an accused is presumed to be

innocent till proved guilty, the alleged accused is entitled to

fairness and true investigation and fair trial and the

prosecution is expected to play balanced role in the trial of a

crime.

24ManekaGandhi v UOI, (1978) AIR 59725 Commissioner of police v registrar, Delhi HC, 26Rattiram&ors v state of MP, (2012) 4 SCC 576

29


It would not be an exaggeration if it is stated that a `fair

trial' is the heart of criminal jurisprudence and, in a way, an

important facet of a democratic polity that is governed by Rule

of Law. Denial of `fair trial' is crucifixion of human rights. It

is ingrained in the concept of due process of law.27

The present case is about media intrusion and publicity by media

which can create biasness in case and lead to miscarriage of

justice. The publicity attached to this case is not justified as

it was said that ‘no occasion should arise for an impression that

the publicity attached to matters dilute the emphasis on the

essentials of a fair trial and the basic principle of

jurisprudence’28

The constitution of India guarantees freedom of press under

article 19(1) but the freedom does not extend to the extent of

influencing a trial, thus violating the right of fair trial of a

citizen. In the present factual matrix the respondents by over

popularizing and sensationalizing the petitioners case which has

not only created an atmosphere of bias but has also lead to the

manipulation of facts. Thus the acts of the respondents have

adversely affected the right of the petitioner to have a fair

trial.

II. The writ is maintainable or not.

27Rattiram&ors v state of MP, (2012) 4 SCC 57628 Ankul Chandra Pradhan v uoi, 1996 (6) SCC 354.

30


In present case there is breach of Art. 21 of the constitution

i.e. right to fair trial and writ petition is maintainable in

this case under 32 against a private body which is not generally

maintainable against private body.

Caris in his book statute law summarizes that the principle as

‘The ejusdem generis principle is one to be applied with caution

and not pushed too far…’ and courts in India no longer rely upon

this principle for the term ‘other authorities’ in definition of

state under art. 12.

The belief and concept that art. 21 is available against state

has been diluting for some time. Instances are available where it

has been invoked against private persons. It is argued that its

language is not restricted to state action. Therefore it should

be given the widest possible interpretation.29 In these cases the

court accepted the maintainability under art. 32 for any

infringement of fundamental right under Art. 21. The body is

state or not decided in many cases but in Rajasthan electricity

board30 case it is said that ‘the body perform public function is

an instrumentality of state.’ In ajay hasia31 case it was stated

that if an body is performing a function of public importance and

related to governmental functions, is a govt. body or agency of

govt.

29 Bodhisattwa gautam v subra chakraborty, (1996) 1 SCC 490: AIR 1996 SC 922, MC Mehta v Kamalnath, (2000) 6 SCC 213 : AIR 2000 SC 199730 AIR 1967 SC 185731 (1981) 1 SCC 722

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In zee films ltd. V UOI32, ‘a private body can be brought under

the ambit of art. 32 if it discharge public functions, duty or

something of obligation of public nature. ‘And it is said in

Binny ltd v V.Sadasivan case33 that private bodies may perform

public function and when it ‘seeks to achieve some collective

benefit for public’ and ‘intervene or participate in social or

economic affairs in public interest.’

It was also said that in absence of authorization, if a private

body chooses to discharge any function or order which amount to

public duties or functions which is not prohibited by law, then

it may be considered to and instrumentality of state.34NBAC is a

body constituted of all the private news channels of union of

cidia and serve as collective voice of them. And it represent all

the matters concerned with the union of cidia and it has large

audience or viewers and do public function by giving people

information. This information is a basis by which the people make

their views and opinion on different matters going on in union of

cidia. It is an instrument through which right to expression and

speech of citizen is exercised. It is a body on which public rely

and trust for news and information and this organizes debates on

socio political issues. So due to its dominant position among

people it is doing public function and in larger public interest.

In our case also NBAC is a body which affects millions of people

as they are connected with it for information, entertainment etc.

32 (2005) 4 SCC 649, 694-695(para 70)33(2005) 6 SCC 65734 Ibid. at p 649

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III. Postponement order under scope of art. 32

The citizen of cidia are having art. 32 as fundamental right and

art. 32(2) of Indian constitution to issue direction or writ

whichever may be appropriate for enforcement of fundamental

right. There are five types of writs mentioned under art. And

Supreme Court said in charanjit Lal Choudhury v UOI that the

application of petitioners cannot be thrown out simply on the

ground that the proper writ and direction has not been prayed

for.35 In the case of Virendra v State of Punjab36 and K.A. Abbas

v UOI & Anr37 the court upheld prior restraint on motion

pictures. The court in Naresh shridhar Mirajkar v state of

Maharashtra38 the court dealt with power to prohibit publication

of court proceedings or evidence of cases outside the court by

media.

In Sahara India Real estate Corp v SEBI39 the power of court to

issue postponement order is discussed. Sometimes media portray

some contrary issues of companies or adverse comments on some

policies as in reliance case40 media published adverse comments

on proposed debentures, court granted injunction against the

press publishing such matters questioning the legality of such

debentures.

35 AIR 1951 SC 41, 5336 AIR 1957 SC 896371971 AIR 48138 AIR 1967 SC 139

40 Reliance petrochemical ltd. V proprietors of Indian express newspapers Bombay (p) ltd. AIR 1989 SC 190

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Our case is widely discussed by media so there is imminent chance

that it may affect the fair trial so it is urged before this

Hon’ble court to postpone the trial. It will not affect the right

to expression as it is not absolute in our constitution as

restrictions are placed by art. 19(2)

IV. Justifiable regulation under art. 19

Art. 19 is of right to expression and speech and it is not

absolute in our constitution. And one of limitation is contempt

of court under contempt of court act 1971, sec 2 (c) (ii)

criminal contempt means publication of any matter or the doing of

any other act whatsoever which prejudices, or interferes or tends

to interferes with, the due course of any judicial proceedings.

Our case comes under the ambit of this sec. and the postponement

is necessary for maintaining fairness of trial.

Supreme Court and high court have power to issue contempt under

art. 129 and art. 215 to issue contempt and these are much wider

than what is conferred under the above mentioned act. It empowers

the writ court to prevent any possible contempt41.

Free speech in appropriate cases has got to correlate with fair

trial. It also follows that in appropriate case one right [say

freedom of expression] may have to yield to other right like

right to a fair trial.42

41 Ibid.42 Sahara India Real estate corp v SEBI, MANU/SC/0735/2012

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There is open justice system in India and it add faith to Indian

judiciary but this right is not absolute and restricted if

necessary.43

CASE III

I. sec. 66a violates the freedom of speech and expression granted

under art. 19(1) (a)?

The constitution of India grants its citizen power to express

their views freely as free expression and right to speech are the

founder stones of democracy. These rights are not absolute and

have some limitations and art. 19(2) says abt. Imposing

reasonable restrictions. And restrictions which do not comes in

the ambit of art.19 (2) and imposing unreasonable restrictions

are unconstitutional. Freedom of speech and expression

significantly contributes to a ‘liberal open-minded civil

society; rational, tolerant and accommodating plurality’44in a

famous passage in his dissenting judgment in Abrams v. US 250 US

616 (1919), Oliver Wendell Holmes, J., propounded the interest in

discovering truth as an enduring argument for defending the right

to free speech and expression. Holmes said: 'But when men have

realized that time has upset many fighting faiths, they may come

to believe even more than they believe the very foundations of

their own conduct that the ultimate good desired is better

reached by free trade in ideas-that the best test of truth is the

power of the thought to get itself accepted in the competition of

43 Mohammed Shahabuddin v state of Bihar, (20110) 4 SCC 65344 Lakshmi Ganesh Films and Ors., 2006 ALD 374

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the market, and that truth is the only ground upon which their

wishes safely can be carried out.'

Free speech is an integral part of an individual’s right to self-

development and fulfillment. What an individual is allowed to

say, write hear and read, influences the personality and its

growth. Freedom of speech is important to an individual’s self-

development.45

Sastri, J: A freedom of such amplitude might involve risks of

abuse. But the framers of the Constitution may well have

reflected with Madison who was 'the leading spirit in the

preparation of the First Amendment of the Federal Constitution',

that 'it is better to leave a few of its noxious branches to

their luxuriant growth than, by pruning them away, to injure the

vigour of those yielding the proper fruits.'" (Quoted in Near v.

Minnesota 283 US 607 at 717-8).

Dealing with the problem of defining the area of freedom of

expression when it appears to conflict with various social

interests enumerated under Article 19(2), Shetty, and J., said:

Our commitment of freedom of expression demands that it cannot be

suppressed unless the situations created by allowing the freedom

are pressing and the community interest is endangered. The

anticipated danger should not be remote or far-fetched.46It would

be clear that the righto freedom of speech and expression carries

with it the right to publish and circulate one's ideas, opinions

45 ibid46 Ibid.

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and views with complete freedom and by resorting to any available

means of publication. ..... .".47

The restrictions placed under art. 19 (1) (a) by means of art. 19

(2) are exhaustive in itself48 and any restriction not placed

under this section can be held ultravires49 . In this case the

govt. on a mere healthy criticism with no malaise intention curb

the freedom and this is an unreasonable restriction as this may

bring ‘chilling effect’. The terms as grossly offensive,

menacing, annoyance etc. which are vague and can be used in

unjust manner by executive, does not gives right to curb freedom

in a democratic govt. social media in today’s time become an mode

of information and its credibility is equitant to press and the

public it covers is more than press and it is also acting as a

platform for people to express their views, political discussion

and debates. So imposing restriction on expression on social is

like a curbing of expression in real.

Reasonable restriction should be in the interest of larger public

and in present case the action of govt. is unreasonable as it was

a mere giving opinion with no intention of provocation. The court

in Hanif Quareshi Mohammed v state of Bihar,50 said

reasonableness of a restriction has to be determined in an

objective manner from the stand point of interest of general

47 Sakal papers (p.) Ltd. V. UOI, 1962 AIR 30548 Kedarnath v state of Bihar, AIR 1963 SC 812, 49 Kameshwar Rao v state of Bihar, AIR 1962 SC 116650AIR 1958 SC 731

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public and not from the point of the person upon whom the

restrictions are imposed or upon abstract considerations.’

The court said the restrictions should be rationally and

proximately connected to grounds specified in art. 19(2) and 19

(6) and balance should be there between these two clauses

otherwise that law will become unconstitutional.51 This idea is

based on old principle that LIBERTY has to be limited in order to

be effectively possessed.

Prevailing social values as also social needs which are intended

to be satisfied by restrictions have to be borne in mind. 52There

must be a direct and proximate nexus or a reasonable connection

between the restrictions imposed and the object sought to be

achieved. The restriction should follow the ‘principle of

proportionality’ as given by court in Om Kumar v. UOI53. In our

case a mere healthy criticism against govt. action was not

tolerated and there is no doubt regarding the unreasonableness of

restriction.

II. Was duty violated by petitioner?

There has to be a balance and proportionality between the right

and restriction on the one hand, and the right and duty, on the

other. It will create an imbalance, if undue or disproportionate

51 MRF Ltd. V Inspector Kerala govt, (1998) 8 SCC 22752 (See: State of U.P. vs. Kaushailiya, (1964) 4 SCR 1002 = AIR 1964 SC 416) 53 (2001) 2 SCC 386

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emphasis is placed upon the right of a citizen without

considering the significance of the duty. The true source of

right is duty. When the courts are called upon to examine the

reasonableness of a legislative restriction on exercise of a

freedom, the fundamental duties enunciated under Article 51A are

of relevant consideration. Article 51A requires an individual to

abide by the law, to safeguard public property and to abjure

violence. It also requires the individual to uphold and protect

the sovereignty, unity and integrity of the country. All these

duties are not insignificant.

In the case of Dr. D.C. Saxena v. Hon'ble the Chief Justice of

India 54 , this Court held: ‘If maintenance of democracy is the

Foundation for free speech, society equally is entitled to

regulate freedom of speech or expression by democratic action.

The reason is obvious, viz., that society accepts free speech and

Expression and also puts limits on the right of the Majority.

Interest of the people involved in the acts of expression should

be looked at not only from the perspective of the speaker but

also the place at which he speaks, the scenario, the audience,

the reaction of the publication, the purpose of the speech and

the place and the forum in which the citizen exercises his

freedom of speech and expression. The State has legitimate

interest, therefore, to regulate the freedom of speech and

expression which liberty represents the limits of the duty of

restraint on speech or expression not to utter defamatory or

54(1996) 5 SCC 21639


libelous speech or expression. The freedom of speech and

expression is tolerated so long as it is not malicious or

libelous, so that all attempts to foster and ensure orderly and

peaceful public discussion.

III. Whether Right to equality violated

This case is about sec. 66a which covers offences related to

computer i.e. to curb mailing of provocative and malicious

material. It is a violation of right to equality as it

discriminates the freedom granted used in online and offline way.

‘Right to speak include right to criticize in a healthy manner or

on matters which displeases others’. In newspapers, magazines,

and on news channel criticizing govt. are not criminal but

criticizing on social media attract penal provisions under IT act

2000. The discrimination is clearly visible in the two acts i.e.

the penal act and IT act, in penal act sec 294 provides a maximum

of 3 months of imprisonment but section 66a have a term upto 3

yrs. Such a classification are illogical, discriminatory and

disproportionate. It was said in Bhagat Ram v state of H.P.55

that ‘any penalty disproportionate to the gravity of misconduct

would be in violation of art 14.

IV. Whether it Grants unfettered powers on the executive.

This act grants much powers to executive and action under this

act is totally on the discrimination of executive as terminology

55 AIR 1983 SC 45440


which is used is totally vague and undefined. It is said that

absolute discretion uncontrolled by the guidelines, which may

permit denial of equality before law is the very anti-thesis of

rule of law.56 This law many undefined terms and this violate the

basic principle which says ‘a law is for people and they should

understand the gist of this then only they will come to know

about the limitations and scope of law’ but this law is an

instrument for executive to use unlimited power. In maneka Gandhi

case justice bhagwati said “when a statute vests unguided and

unrestricted power in an authority to affect the rights of person

without laying down any policy or principle which is to guide the

authority in exercise of this power, it would be affected by the

vice discrimination. ”

V. The onus is on the state to prove constitutionality

Once the invasion of right under art. 19(1) is ex-facie proved,

the state must justify that such invasion is justified under

relevant clause (2) to clause (6) of art. 1957. The harsher the

restriction the more is onus to prove the reasonableness.58

56 Sudheer Chandra v Tata Iron and Steel. Co. Ltd, AIR 1984 SC 106457 Khyebari tea Co, ltd v. State of Assam, AIR 1964 SC 92558Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC 1471

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CONCLUSION & PRAYER

Wherefore, in the light of the facts of the case, arguments

advanced and authorities cited, it is submitted that the Hon’ble

Supreme Court of Cidia may be pleased to adjudge and declare

that:

1) An order issuing union of Cidia to give compensation to the

petitioners, (Maya and Mohini) and an order asking scroll of

apology from all news channels of broadcasting corporation of

cidia

2) An order of postponement be issued against all coverage

regarding the trial of the petitioner (Salma)

3) .An order declaring Section 66 A as unconstitutional. (Jan

mukthi andolan)

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And pass any other order which the court may deem fit in the ends

of equity, justice, expediency and good conscience in favour of

the petitioner. All of which is respectfully submitted

Place:

S/d_________________

Date: (Counsel for

Petitioner)

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