Petitioner T40

0
Memorial for Applicant

TEAM CODE – T40
8th RMLNLU – SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT

COMPETITION, 2020
BEFORE
THE HON’BLE SUPREME COURT OF FLAVIA,
(Under Article 32, 136 of the Flavian Constitution)
IN THE CASE OF-
MR. DOLFOPA SORIAL, THE FLAVIAN EXPRESS
(Appellant)
v.
THE DEMOCRATIC REPUBLIC OF FLAVIA
(Respondent)
“Case Concerning the Sedation and Defamation”.
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
8th RMLNLU SCC Online International Media Law Moot, 2020

1
TABLE OF CONTENTS
LIST OF ABBREVATIONS………………………………………………………………3-4
INDEX OF AUTHORITIES………………………………………………………...…….5-8
STATEMENT OF JURISDICTION………………………………………………………..9
STATEMENT OF FACTS………………………………………………………...……10-11
STATEMENT OF ISSUES…………………………………………………………………
12
SUMMARY OF ARGUMENTS……………………………………………………….13-14
AGRUMENT ADVANCED…………………………………………………………….15-31
ISSUE 1. THE ORDER OF RESTRAINMENT SOUGHT BY THE GOVERNMENT ON

PUBLICATION OF NEWS FROM KAZALIA IS NOT VALID AND NON-
ENFORCEABLE
1.1) ORDER ARE VOILATIVE OF SPEECH AND EXPRESSION
ISSUE 2. THE COURT ORDER DIRECTING MR. DOLFOPA SORIAL TO REVEAL

THE IDENTITY OF THE AUTHOR(S) WHO POSTED THE ANONYMOUS ARTICLE
AND PUNISHMENT FOR REFUSAL TO COMMUNICATE THE REQUEST
INFORMATION IS ILLEGAL AND VIOLATIVE OF THE FREEDOM OF PRESS
2.1) VOILATION OF FREEDOM OF PRESS
2.2) REFUSAL WAS JUSTIFIED
ISSUE 3. THE REFUSAL BY THE GOVERNMENT TO GRANT ACCESS TO THE

REQUESTED OFFICIAL DOCUMENT IS NOT VALID
3.1) VOILATION OF RTI
3.2) AGAINST PRINCIPLE OF NATURAL JUSTICE
ISSUE 4: SECTION 124A AND 500A OF THE FLAVIAN PENAL CODE ARE
VIOLATIVE OF THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEED AND
EXPRESSION

2
4.1) INFRINGMENT OF FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH
AND EXPRESSION
4.1.1) ARTICLE IS AN ILLUSTRATION OF PUBLIC OPINION

REGARDING THE GOVERNMENT
4.1.2) INTERNET SUSPENSION AND TYRANNOUS

PREVENTIVE DETENTION VOLATIVE
4.2) ARBITRATY LEGISLATION
4.2.1) SECTION 124A CONTAINS UNREASONABLE

RESTRICTIONS AND SHOULD BE OMITTED FROM THE PENAL CODE
4.2.2) DEFAMATORY LAWS SHOULD BE FOR THE

PROTECTION OF REPUTATION NOT CORRUPTION
ISSUE 5. THE PROSECTION AGAINT ‘THE FLAVIAN EXPRESS’ AND MR.

DOLFOPA SORIAL IS LIABLE TO BE QUASHED
5.1) THERE IS COMMISION OF NO OFFENCE UNDER SECTION 124A AND 500A
5.2) NO LIABILITY FOR OBSTRUCTION OF JUSTICE
PRAYER ……………………………………………………………………………………32

3
LIST OF ABBREVIATIONS
AIR All India Reports
Anr. Another
Bomlr Bombay Law journal
C Civil
Cr.L.J Criminal Law Journals
E.W.C.A England and Wales Highest Court Of Appeal
Eg For example
EHRR Essec Human Rights Review
i.e That is
Ibid In the same page
ICCPR Intentional Convention on Civil and Political Rights
Para Paragraph
SCC Supreme Court Cases
SCR Supreme court reports
U.D.H.R United Declaration of Human Rights
U.k. United Kingdom
U.S. United States
Vs. Versus
WP Writ Petition

4
INDEX OF AUTHORITIES
CASES
A.K.Gopalan v. State of Madras 45
Anuradha Bhasin v. UOI 45

Association Ekin v. France 36
Attorney general v guardian newspaper
Indian Express Newspapers v. Union of India
Ram Nandan V. State 36
Baker v. F & F Inv 38
Balwant Singh v. the State of Punjab 44
Cervantes v. Time, Inc 38

Channing Arnold v. King Emperor 35
Delhi Sikh Gurudwara Management Committee v. Mohinder Singh Matharu 41
Dr.S.Ramadoss vs The Public Prosecutor 47
Golub v Enquirer/Star Group 48

Gross v New York Times Co 48
H.E. Rajashekarappa Versu State Public Information Officer & Under Secretary to Govt.,
Bangalore & Ors 40
Hanumanthaiya v. Govt of Mysore 49
Indira Nehru Gandhi v. Raj Narain 45

Javed Habib v. the State of Delhi 44

5
Lange v Australian Broadcasting Corporation 35
Lawrence D'Souza v. State of Bombay 45
M.R. Parashar v. Farooq Abdullah 44

McCartant Turkington Breen v. Times newspaper 36
Minerva Mills Ltd. and Ors. v. Union Of India and Ors. 45
Piyush Kantilal Mehta vs Commissioner Of Police 45
Ram Nandan v. State of U.P 37
Riley v. Chester 38
Romesh Thappar v. State of Madras 35

S. Khushboo v. Kanniammal & Anr 44
Sanskar Marathe v. State of Maharashtra & Ors 46
Shreya Singhal v. Union of India 45

Subramanian Swamy v. C.B.I 45
Subramanian Swamy v. Union of India 47
Stoll v. Switzerland 36
Tara Singh v. state of Punjab 46

Vijayakanth V. Public Prosecutor 47
BOOKS
Criminal Law: Cases and Materials K.D. Gaur
Criminal Procedure R.V. Kelkar
Halsbury's Laws of India
Human Rights Law - Howard Davis
International Law & Human Rights - Centr Law Agency
International Law & Human Rights - Dr. H.O. Agarwal
Landmark Judgments that Changed India Asok Kumar Ganguly
LawZ September2018

6
Living in Digital Darkness: A Handbook on Internet Shutdowns in India Published by:
SFLC.in
Preventive Detention and Human Rights - Priti Saxena
Preventive Detention and Security Law (A Comparative Survey) - Andrew Harding + John
Hatchard
Ratanlal and Dhirajlal's the Indian Penal Code Y. V. Chandrachud
United Nation Documents and Commentary - Simon Chesterman
CONSTITUTION PROVISIONS
Article 19
Article 21
STATUTE
Contempt of Courts Act, 1971
Contempt of Courts Act, 1971
Human Rights Act 1998.(UK)
Indian Evidence Act
Indian Penal Code, 1860
Indian Telegraph Act, 1885
Preventive Detention Act, 1950
Right to Information Act, 2005
The Code of Criminal Procedure, 1973
INTERNATIONAL TREATIES AND CONVENTIONS
International Convention on Civil and Political Rights

7
The Universal Declaration on Human Rights
SOURCES
https://www.scconline.com/web-edition
https://indiankanoon.org
www. SFLC.in
https://www.heinonline.org/HOL/welcome
https://www.manupatrafast.com/
https://ndl.iitkgp.ac.in/
https://www.delnet.in
www.humanrightsinitiative.org/programs/ai/rti
http://docs.manupatra.in/newsline/articles/Upload/F8FF5487-7DF0-4F0F-9A11-
74F3C2585AC9.pdf
STATEMENT OF JURISDICTION
The Criminal Appeals No. 62 and 85 under Article 136 of the Flavian Constitution, W.P. 107
under Article 32 of the Flavian Constitution. R.P. under Rule 47 of Flavian Supreme Court
Rules. Also, this Rule 47 for R.P. is pari materia to Order XLVII of the Code of Civil
Procedure.

8
STATEMENT OF FACTS
Introduction
In the December 2018 report of the Media Rights Council, an independent think tank of
media organisations in Flavia, it was observed that ever since Mr. Mosante came to power,
the attacks against journalists by his supporters have increased. It was also noticed that the
coordinated hate campaigns waged on social networks against journalists who dare to speak
or write against Mr. Mosante and his Government are alarming. In July 2019, Section 500-A
was introduced in the Flavian Penal Code making the defamation of the President a
punishable offence. The amendment was widely criticised as being intended to stifle the
legitimate criticism of the functioning of the Presidency and the Government.
Mr. Dolfopa Sorial and The Flavian Express
Mr. Dolfopa Sorial is a very reputed journalist of Flavia. He is the Editor in Chief of the
newspaper ‘The Flavian Express’. The Flavian Express is known for its honest coverage of
controversial issues. In 2013, a group of journalists of the Flavian Express led by Mr. Sorial
unearthed the massive corruption by the then Government in a defence deal. Mr. Sorial
through his editorials has been very critical of the Mosante regime from its very beginning. In
2017, the Flavian Express introduced a page in its daily newspaper as well as in its online
edition called the ‘Open Book’, wherein anyone could anonymously post/publish articles
criticising and complaining about the activities of the Government. An independent
investigation conducted by the Press Association of Flavia revealed that about 50-55% of the
anonymous news published in ‘Open Book’ has been true.
Prosecution
The Flavian Express and Mr. Dolfopa Sorial were prosecuted for defamatory allegations
against the President and for the offence of Sedition.
The Flavian Express and Mr. Sorial decided to challenge the constitutional validity of the
provisions under which they were charged. It was contended that Sections 124-A and 500-A
of the Flavian Penal Code violate the freedom of speech and expression guaranteed by the

9
Constitution by stifling the legitimate criticism of the Government. Alternatively, they also
prayed that even if the Sections are held to be constitutionally valid, their prosecution is an
abuse of the process of law as the facts do not attract the offences alleged against them. These
reliefs are claimed in W.P. No. 107 of 2020.

10
STATEMENT OF ISSUES
THE FOLLOWING QUESTIONS ARE PRESENTED BEFORE THE HON’BLE SUPREME COURT
OF FLAVIA
ISSUE 1: WHETHER THE ORDER OF RESTRAINMENT SOUGHT BY THE GOVENRMENT ON
PUBLICATION OF NEWS FROM KAZALIA IS VALID AND ENFORCEABLE?
ISSUE 2: WHETHER THE COURT ORDER DIRECTING MR. DOLFOPA SORIAL TO REVEAL
THE IDENTITY OF THE AUTHOR(S) WHO POSTED THE ANONYMOUS INFORMATION IS
ILLEGAL AND VOILATIVE OF THE FREEDOM OF PRESS?
ISSUE 3: WHETHER THE REFUSAL BY THE GOVERNMENT TO GRANT ACCESS TO THE
REQUESTED OFFICIAL DOCUMENTS IS VALID?
ISSUE 4: WHETHER SECTION 124A AND 500A OF THE FLAVIAN PENAL CODE ARE
VOILATIVE OF THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION?
ISSUE 5: WHETHER THE PROSECUTION AGAINST ‘THE FLAVIAN EXPRESS’ AND MR.
DOLFOPA SORIAL IS LIABLE TO BE QUASHED?

11
SUMMARY OF ARGUMENTS
Issue 1: The order of restrainment sought by the government on publication of news

from Kazalia is not valid and non-enforceable.
It is humbly submitted before the Hon’ble court that Government of Flavia has infringed the
Right of Publication. Article 19 enshrines rights of freedom of speech and expression . The
Government of Flavia passed an order to restrain and prohibit the print and electronic media
from publishing any information.
The freedom of press indicated their right to publish whatever they want without any license
or prior permission . However subject to the consequence of law reasonable restriction can
be made only by passing of a law and not by an executive order.
Issue 2: The Court order directing Mr. Dolfopa Sorial to reveal the identity of the
author(s) who posted the anonymous article and punishment for refusal to
communicate the requested information is legal and violative of Freedom of Press.
It is humbly submitted that the information was given to him on the basis of confidentiality
and if the source is revealed by him then he would not be able to get any information later on.
It would hamper his right to freedom of speech and expression under Article 19(1) of the
Constitution of India.
Issue 3: The refusal by the government to grant access to the requested official
documents is not valid.
It is humbly submitted that the Government has no right to deny the official documents. The
Act is applicable to the whole of India. Earlier, J&K Act was in force in the state of Jammu
and Kashmir. However, after the revocation of much of Article 370 of the Constitution of
India, the Union Territory of Jammu and Kashmir (and also the Union Territory of Ladakh)
were brought under its ambit. It covers all the constitutional authorities, including executive,
legislature and judiciary; any institution or body established or constituted by an act of
Parliament or a state legislature. It is also defined in the Act that bodies or authorities
established or constituted by order or notification of appropriate government including bodies
"owned, controlled or substantially financed" by government, or non-Government
organizations "substantially financed, directly or indirectly by funds".

12
Issue 4: Section 124A and 500A of the Flavian Penal Code are violative of the
Fundamental Right to Freedom of Speech and Expression
It is humbly submitted that section 124-A and 500-A of the Flavian Penal code constitutes an
unreasonable restriction to freedom of speech and expression under Article 19. The
publication of the articles by the Appellate did not attempted to bring hatred towards the
government established by law in Flavia
Issue 5: The prosecution against ‘ The Flavian Express’ and Mr. Dolfopa Sorial is liable
to be quashed
It is humbly Submitted that Freedom of Press is right that has to to be maintained in a

democratic society . But the section has taken care to indicate clearly that strong words under
lawful means used to express disapprobation of the measures of the Government with the
view to their improvement or alteration would not come within the section. Similarly,
comments, however, strongly worded, expressing disapprobation of actions of the
Government, without exciting those feelings which generate the inclination to cause public
disorder by acts of violence, would not be penal. Dissent and criticism of the government are
essential ingredients of robust public debate in a vibrant democracy. They should not be
constructed as sedition. Right to question, criticize and change rulers is very fundamental to
the idea of democracy.

13
ARGUMENTS ADVANCED
ISSUE 1:
THE ORDER OF RESTRAINMENT SOUGHT BY THE GOVERNMENT ON
PUBLICATION OF NEWS FROM KAZALIA IS NOT VALID AND ENFORCEABLE
It is humbly submitted before the Hon’ble court that Government of Flavia has infringed the
Right of Publication. Article 19 enshrines rights of freedom of speech and expression . The
Government of Flavia passed an order to restrain and prohibit the print and electronic media
from publishing any information.
The freedom of press indicated their right to publish whatever they want without any license
or prior permission . However subject to the consequence of law reasonable restriction can
be made only by passing of a law and not by an executive order.
The right to express opinions freely is critical in a democracy. Intellectuals have long
championed it as a gateway to other liberties, positing that curtailment of free expression
inevitably leads to restrictions on other rights such as the right to be informed. “The freedom
of the journalist is an ordinary part of the freedom of the subject and to whatever length, the
subject in general may go, so also may the journalist, but apart from statute law his privilege
is no other and no higher. The range of his assertions, his criticisms or his comments is as
wide as, and no wider than that of any other subject”.1
1.1)Orders are violation of freedom of speech and expression
Freedom of the press or freedom of the media is the principle that communication and
expression through various media, including printed and electronic media,
especially published materials, should be considered a right to be exercised freely. High
Court of Australia case that upheld the existence of an implied freedom of political
communication.2 Freedom of speech & of the press lay at the foundation of all democratic
organization, for without free political discussion no public education, so essential for the
proper functioning of the process of popular government, is possible3 .
1
Channing Arnold v. King Emperor (1914) 16 BOMLR 544
2
Lange v Australian Broadcasting Corporation HCA 25, (1997) 189 CLR 520
3
Romesh Thappar v. State of Madras

14
Freedom of the press has been included as part of freedom of speech and expression
under Article 19 of the UDHR. The heart of the Article 19 says: “Everyone has the right to
freedom of opinion and expression, this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers.”4 Restrianment on speech which for eg. which involve criticism of
government policy will be hard to justify. The media is vital as a watchdog against the
opposition. Necessary for the democratic society 5 The importance of freedom of expression
in common law continue to be asserted by the judges, it has been recognized by the law lords
as attaining the status of constitutional right6 Time and again the ECtHR has emphasized the
importance of free media .it is essential for democracy is the system which best upholds
human rights.7
Freedom of expression is well recognized principle of common law. 8 The United Nations'

1948 Universal Declaration of Human Rights states: "Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without interference, and
to seek, receive, and impart information and ideas through any media regardless of frontiers.
Press plays a very significant role in the democratic machinery. The courts have duty to
uphold the freedom of press and invalidate all laws and administrative actions that abridge
that freedom. Freedom of press has three essential elements. They are: (1) Freedom of access
to all sources of information (2) Freedom of publication, and (3) Freedom of circulation.9
Exciting hatred, contempt or disaffection towards the Government may in some cases affect
the security of the State as for example when a violent overthrow of the existing system of
Government is advocated in the teeth of the Constitution, but not in every case and a
restriction on every speech exciting such a feeling towards the Government cannot be said to
be in the interests of security of the State. Even if it be said that it is in the interests of public
order or the security of the State to impose a restriction on a speech exciting a feeling of
hatred etc., towards the Government, it is certainly not reasonable to impose a restriction on
4
Article 19 Universal Declaration of Human Rights
5
Stoll v. Switzerland 2008 47 EHRR 59
6
McCartant Turkington Breen v. Times newspaper 2000 4 All ER 913,926
7
Association Ekin v. France (2000) 35 EHRR 35, para561
8
Attorney general v guardian newspaper(1988) 3 All ER 545
9
Indian Express Newspapers v. Union of India 1986 AIR 515

15
every such speech just because some of it may involve a threat to public order or to
the security of the State.10
ISSUE 2:
THE COURT ORDER DIRECTING MR. DOLFOPA SORIAL TO REVEAL THE
IDENTITY OF THE AUTHOR(S) WHO POSTED THE ANONYMOUS ARTICLE
AND PUNISHMENT FOR REFUSAL TO COMMUNICATE THE REQUESTED
INFORMATION IS ILLEGAL AND VOILATIVE OF THE FREEDOM OF THE
PRESS
It is humbly submitted that the information was given to him on the basis of confidentiality
and if the source is revealed by him then he would not be able to get any information later on.
It would hamper his right to freedom of speech and expression under Article 19(1) of the
Constitution of India.
2.1 Violation of freedom of press
It is humbly submitted that Nothing in sub-section (1) shall be deemed to compel any
newspaper, news agency, editor or journalist to disclose the source of any news or
information published by that newspaper or received or reported by that news agency editor
or journalist.
It also referred to the Law Commission’s 93rd report on the disclosure of sources of
information by the mass media and its 132nd report on the CrPC. The proposed provision
read as follows: Disclosure of source of information contained in publication 132A. (1) No
Court shall require a person to disclose the source of information contained in a publication
for which he is responsible, unless it is established to the satisfaction of the Court that such
disclosure is necessary in the interests of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order, decency or morality or in
relation to Contempt of Court or incitement to any offence.
In December 1994, the 4th European Ministerial Conference on Mass Media Policy of the
Council of Europe adopted a Resolution on Journalistic Freedoms and Human Rights. 8
Principle 3(d) provides that the protection of the confidentiality of journalists' sources enables
journalists to contribute to the maintenance and development of genuine democracy.
10
Ram Nandan V. State AIR 1959 All 101, 1959 CriLJ 1 (para27)

16
In 2012, the Victorian parliament passed the Evidence Amendment (Journalist Privilege) Act
(Vic) 2012 (the Journalist Privilege Act). The Journalist Privilege Act was introduced to
‘strengthen…the capacity of journalists to maintain the anonymity of their sources’.
These protections can be found in section 126K of the Evidence Act (Vic) 2008. If a

journalist has promised an informant that they will not disclose their identity, the journalist
(or their employer) is not compellable to give evidence that would disclose the identity of the
informant.
2.2 Refusal was justified
" In most libel suits, though, the identity of the source is not crucial 11.
Retaliation and potential chilling effects: the journalist may refuse to disclose the source's
identity for fear that the individual source will be subject to retaliation from the plaintiff. The
journalist may refuse to reveal the source, which would entail breaking a promise of
confidentiality, because this source and others with sensitive information will be deterred
from giving the journalist such information in the future. Courts have stated that compelling
journalists to breach a confidence merely because a libel suit has been filed against them
"would seem inevitably to lead to an excessive restraint on the scope of legitimate
newsgathering activity."3 Journalists contend that compulsory disclosure would cause
particular sources to dry up as well as deter other persons from giving information to the
press.12
journalists regularly rely on confidential sources for a significant amount of the information
they distribute to the public; one survey estimates that amount to be thirty percent. 13 Even
well-respected publications like the Wall Street Journal use confidential sources regularly14
Journalists in one survey said they rely more on confidential sources for certain types of
stories. Journalists tend to rely on these sources (in order of frequency) when covering the
government, investigative stories, financial stories, radical or militant groups, and trials more
than in other stories.15
11
(Blasi, The Newsman's Privilege: An Empirical Study, 70 MICH. L. REv. 229, 276 (1971)
12
Cervantes v. Time, Inc., 464 F.2d 986, at 993 n.10 (8th Cir. 1972); Riley v. Chester, 612 F.2d 708, 714 (3d
Cir. 1979); Baker v. F & F Inv., 470 F.2d 778, 782 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973)
("Compelled disclosure of confidential sources unquestionably threatens a journalist's ability to secure
information that is made available to him only on a confidential basis.").
13
Blasi, supra note 28, at 247.
14
Guest & Stanzler, The Constitutional Argument for Newsmen Concealing Their Sources, 64 Nw. U.L. Rv. 18,
57-61 (1969) (annually approximately 15% of the Journal's stories used confidential sources).
15
Blasi, supra note 28, at 251-52.

17
It is logical to suppose, however, that many who request confidentiality out of fear for their
security or safety would refuse to speak to the press.16
Reporters Without Borders (RSF) has listed India at 138th on its World Press Freedom Index
in 2018, enumerating the fear that journalists are being the targets of online smear campaigns
who not only vilify them but also threaten them with physical violence. These are the few
cases of ruthless murders indicating the problem of silencing the journalists:
 The shooting of Gauri Lankesh: veteran journalist and editor, renowned for her
criticism of right-wing extremism and communal violence was killed because of
her Anti-Hindutva Stand.
 Navin Nischal of Dainik Bhaskar for reporting on child marriage.
 On March 26, the very next day, Sandeep Sharma was killed when a truck ran his
motorcycle over. The News World’s bureau chief, Vikas Purohit, said that Sharma
had received threats earlier for publishing stories on illegal sand mining and police
corruption and had been beaten up earlier.
 Shujaat Bukhari for his reporting on the situation in Kashmir.
 According to The Hoot’s “India Freedom Report: Media Freedom and Freedom of
Expression in 2017” report, 11 journalists were murdered, 46 were attacked and 27
cases of police action were filed in 2017.
In order to protect the democracy, there a need to protect the independence of the press and
furthermore serious actions are required to be taken in such cases.17
Since 1992, 27 journalists have been murdered in India with complete impunity, CPJ records
show. This has created a challenging environment for the press, especially small-town
journalists and those reporting on corruption, who are often more vulnerable to attack and
whose legitimacy is questioned when they are threatened or killed. An overwhelmed justice
system and lack of media solidarity add to the problems facing India’s press.18
16
See Note, Developments in the Law - Privileged Communications, 98 HARv. L. REv. 1450, 1475-76 (1985).
17
https://thediplomat.com/2018/11/journalism-in-india-a-dangerous-pursuit/
18
https://cpj.org/reports/CPJ-India-PDF-Done.pdf

18
The #MeToo movement also gave us a picture of the sexual harassment that women
journalists face. Rana Ayyub, a journalist and the author of “Gujrat Files” faced the worst
kind of harassment. She not only faced agitation but a doctored pornographic video of her
was also circulated.
ISSUE 3:
THE REFUSAL BY THE GOVERNEMENT TO GRANT ACCESS TO THE
REQUESTED OFFICIAL DOCUMENTS IS NOT VALID
It is humbly submitted that the Government has no right to deny the official documents.
3.1. Violation of Right to Information.
That the Government has no right to deny access to the requested official documents.
It is humbly submitted that the Government has no right to deny the official documents. The
Act is applicable to the whole of India. Earlier, J&K Act was in force in the state of Jammu
and Kashmir. However, after the revocation of much of Article 370 of the Constitution of
India, the Union Territory of Jammu and Kashmir (and also the Union Territory of Ladakh)
were brought under its ambit. It covers all the constitutional authorities, including executive,
legislature and judiciary; any institution or body established or constituted by an act of
Parliament or a state legislature. It is also defined in the Act that bodies or authorities
established or constituted by order or notification of appropriate government including bodies
"owned, controlled or substantially financed" by government, or non-Government
organizations "substantially financed, directly or indirectly by funds".
Public Authority means any authority or body or institution of self-government established or

constituted:- (a) by or under the Constitution; (b) by any other law made by Parliament; (c)
by any other law made by State Legislature; (d) by notification issued or order made by the
appropriate Government and includes any(i) body owned, controlled or substantially
financed; (ii) non-Government organization substantially financed, directly or indirectly by
funds provided by the appropriate Government;19
The Delhi High Court has stated that the second part of the definition is “distinct in
alternative, and not cumulative”. The Delhi High Court has clearly stated that the aim of the
19
H.E. Rajashekarappa Versu State Public Information Officer & Under Secretary to Govt., Bangalore & Ors.
W.P. No. 10663 of 2006

19
second part of the definition is to bring bodies that may not have been established by or under
a notification, but are still substantially financed, owned or controlled by the
government.12The Delhi High Court has also clarified that entities falling within the first part
of the definition (from clauses (a) to (d) do not have to additionally be substantially financed,
or owned and controlled by the government20
The CJI is a public authority under the Right to Information Act and the CJI holds

the information pertaining to asset declarations in his capacity as Chief Justice; that office
is a “public authority” under the Act and is covered by its provisions. Similarly the President
is also a public authority and it may be inferred that it is information pertaining to asset
declaration in his capacity as President; that office is a “public authority” under the Act and is
covered by its provisions. It is held that the contents of asset declarations, pursuant to the
1997 resolution—and the 1999 Conference resolution—are entitled to be treated as
personal information, and may be accessed in accordance with the procedure
prescribed under Section 8(1)(j); they are not otherwise subject to disclosure. As far as
the information sought by the applicant in this case is concerned, (i.e. whether the
declarations were made pursuant to the 1997 resolution) the procedure under Section 8(1)(j)
is inapplicable.21
“In the domain of human rights, right to privacy and right to information have to be treated

as coequals and none can take precedence over the other, rather a balance needs to be struck”
The purport of the Section 8(1)(j) of the RTI Act

is to balance privacy with public interest. Under the provision a two steps test could be
identified wherein the first step was: (i) whether there is a reasonable expectation of privacy,
and (ii) whether on an ultimate balancing analysis, does privacy give way to freedom of
expression? We should acknowledge that these two tests are very difficult to be kept separate
analytically.
3.2 Against the Principle of Natural Justice
20
Delhi Sikh Gurudwara Management Committee v. Mohinder Singh Matharu LPA No. 606 of 2010, LPA No.
607 of 2010 decided on 12 September 2012 by Delhi High Court.
21
http://accountabilityindia.in/sites/default/files/rti_brief_no._5-_who_is_a_public_authority_0.pdf

20
The adjudicating authority in a fair hearing is not required only to disclose the person
concerned the evidence or material to be taken against him, but he should be provided an
opportunity to rebut the evidence or material.22
Right of fair hearing includes the right to cross-examination the statement made by the
parties. If tribunals denied the right to cross-examination then it will violate the principles of
natural justice. All the necessary copies of documents should be given and failure of that will
also encroach the principle. The department should make available officers who are involved
in the procedure of investigating and do cross-examination. Cross-examination is defined
under Section 137 of the Indian Evidence Act, 1872 .
It has been laid down that copy of all relied documents to be given and failure to give such
opportunity results in violation of principles of Natural Justice. Officers connected with the
investigation, the department must make them available for cross examination if required.
Cross examination of expert who conducted the test should be afforded.
It is also important to note that no one should be condemned unheard. This principle could be
broadly classified as under: (i) party to an action is prima facie entitled to be heard in his
presence 4 (ii.) he is entitled to dispute his opponent’s case, cross examine his opponents
witnesses and entitled to call his own witnesses and give his own evidence before Court. (iii.)
He is entitled to know the reasons for the decision rendered by a Court/Tribunal.
22
https://shodhganga.inflibnet.ac.in/bitstream/10603/40127/6/06_chapter%201.pdf

21
ISSUE 4:
SECTION-124A AND 500A OF THE FLAVIAN PENAL CODE ARE VIOLATIVE OF
THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
It is humbly submitted that section 124-A and 500-A of the Flavian Penal code constitutes an
unreasonable restriction to freedom of speech and expression under Article 1923. The
publication of the articles by the Appellate did not attempted to bring hatred towards the
government established by law in Flavia .24
25
The case perfectly falls under the exception mentioned in the explanation of the
code.26 Freedom of speech not only helps in balancing the society also provides a feeling of
self-satisfaction amongst the people. Expressing strong criticism towards the state or its
institutions is not amounting to sedition as both institutions and public make the country. So,
criticism over a failed law expressed by the public for the disappointment towards their
elected representatives and this cannot amount to sedition or defamation because the protests
project their disappointment.
4.1) Infringement of Fundamental Right to Freedom of Speech and Expression.
Freedom of speech not only provide public opinion but it also helps the underprivileged and
unheard people of the society who wishes to give their opinions on government and other
policies. Freedom of speech is necessary for a stable society, as it helps the citizens to
provide their views about the system, both positive and negative.27
“Freedom of speech is a basic natural right of an organised society to provide and obtain
information on their common interest”. 28 The government established by law is the symbol
of the State, undermining the power of the state can harm the security of the state and the
people living in it. Which means respecting the existence of the government is required for
the stability of the state. Sedition is an offence against the state. This justifies that every act
23
Constitution of Flavia
24
Section 124-A Flavian Penal code
25
ibid
26
ibid
27
John Stuart Mill
28
Tata Press Ltd v. Mahanagar Telephone Nigam Ltd & Ors 1995 AIR 2438, 1995 SCC (5) 139

22
that comes in the boundaries of Section 124A is an offence against the state. However, the
wrong use of this Section is a violation of freedom of speech and expression, Article 19.
4.1.1) Article is an illustration of Public Opinion regarding the government .
The Court held that criticism through raising slogans once or twice by individuals can not
excite or attempt to excite hatred or disaffection towards the government 29. It was also
declared that there is no restriction fall under Article 19(2) on freedom of speech and
expression unless there are chances of public disorder or trying to overthrow the
government. 30 The Supreme Court of India suggested that the free flow of thoughts in a
society makes the society smart, which helps in good governance. For achieving this
situation, it is necessary that society doesn’t fear the administration for providing opinions. 31
Criticising towards the Prime Minister or his actions can not be considered as sedition under
Section 124A of IPC. In the democratic system of government, people choose their
government so they also have the right to criticise them. 32Every criticism doesn’t amount to
sedition as the intention of the act is extremely important. The Court has to keep in mind the
distinction between criticism of the government and the criticism by a leader of a political
party. Where the leader of a political party becomes the head of the government, any
criticism of the person and his policies as head of the political party or Government cannot be
viewed as sedition.33 Basic criticism of the government is not seen as sedition unless the
Government believes that it was calculated to undermine the respect for the government in
such a way so as to make people cease to obey it.34
4.1.2 ) internet suspension and Tyrannous preventive detention violative.
Freedom of speech and expression included propagation of ideas, and that freedom was
ensured by the freedom of circulation. It is clear that the right to freedom of speech and
expression carries with it the right to publish and circulate one’s ideast, opinions and other
views with complete freedom and by resorting to all available means of publication. Right to
Internet is also embraced under Article 21 of the Constitution .35
29
Balwant Singh v. the State of Punjab 1995 (1) SCR 411
30
Romesh Thappar v. State of Madras 1950 AIR 124, 1950 SCR 594
31
S. Khushboo v. Kanniammal & Anr 2010 5 SCC 600
32
Javed Habib v. the State of Delhi
33
34
M.R. Parashar v. Farooq Abdullah 1984 AIR 615, 1984 SCR (2) 760
35
Anuradha Bhasin v. UOI (2019)

23
In order that an activity may be said to affect maintenance of public order, there must be
materials to show that there has been a feeling of insecurity among the general public. If any
act of a person creates panic or fear in the minds of the members of the public upsetting the
even tempo of life of the community, such act must be said to have a direct bearing on the
question of maintenance of public order or else the detention cannot be held valid .36
The Flavian government had supplied vague grounds for the detention. Supplying vague
grounds to detenu will infringe his constitutional right37 Preventive detention laws are
repugnant to democratic constitution and they Should not be found to exist in any of the
democratic countries of the world38 The right to personal liberty and immunity from wrongful
detention is enshrined in Magna Carta and is enforceable by the writ of habeas corpus and the
action of false imprisonment.39
4 .2) Arbitrary Legislation
Parliament cannot exercise this limited power to grant itself an unlimited power 40The basic
41
structure of the constitution cannot be amended . A Constitution Bench of the Supreme
Court of India used the basic structure doctrine to strike down the 39th amendment and paved
the way for restoration of Indian democracy.42 Law should always establish a clear proximate
relation to the protection of public order to get validity .43
If the object of the Law is itself discriminatory , then explanation that classification is
reasonable and is having rational relation to object is immaterial 44
Indian parliament in the year 1971 passed Law 45containing indefinite preventive detention of
individuals, search and seizure of property without warrants and wiretapping- in the quelling
of civil and political disorder in India ,As well as countering foreign-inspired Sabotage
,Terrorism ,Subterfuge and threats to national security.The law was amended several times
during the subsequently declared national emergency (1975–1977) and used for quelling
political dissent. Finally it was repealed in 1977.46
36
Piyush Kantilal Mehta vs Commissioner Of Police, 1989 AIR 491, 1988 SCR Supl. (3)1081
37
Lawrence D'Souza v. State of Bombay AIR 1956 SC 531
38
A.K.Gopalan v. State of Madras 1950 SCR 88
39
halsbury's law of England , vol 8 (4th edition) para 832
40
Minerva Mills Ltd. and Ors. v. Union Of India and Ors. AIR 1980 SC 1789
41
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225
42
Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
43
Shreya Singhal v. Union of India (2013) 12 S.C.C. 73,
44
Subramanian Swamy v. C.B.I (2014) 8 SCC 682
45
Maintenance of Internal Security Act
46
ibid

24
4.2.1) Section 124-A contains unreasonable restriction and should be omitted from the
penal code
Freedom of speech and sedition are like two sides of the same coin. In India first case to
attack the constitutionality of Section 124A of IPC. Freedom of speech and expression is the
soul of our constitution and Section 124A violates that. The Allahabad High Court held that it
is beyond the legal authority of the Section to restrict freedom of speech and expression.
Court mentioned that Section 124A is extremely questionable and unpleasant for both
practical and historical reasons. It must be removed as soon as possible. 47 Section 124-A, of
Indian Penal Code was struck down as unconstitutional being contrary to freedom of speech
and Expression guaranteed under Art 19(1) (a).48 The Hon’ble High Court held that section
124-A imposed restriction on the freedom of speech which is not in the interest of the
general public and hence declared 124-A as ultra vires. 49
There is lot of misuse of the sedition section , Even though the law allows for peaceful
dissent and constructive criticism, over the years various governments have used section
124A to curb dissent. The trial and conviction of the medical doctor and human rights
activist, Binayak Sen, led to a renewed call for the scrapping of this law. In the Aseem
Trivedi case, where a cartoonist was arrested for his work around the theme of corruption, the
Bombay High Court has laid down guidelines to be followed by the government in arrests
under section 124A50. The sedition law is being misused as a tool to persecute political
dissent. A wide and concentrated executive discretion is inbuilt into it which permits the
blatant abuse. The United Kingdom deleted the seditious libel through the Coroners and
Justice Act, 2009. In Australia, following the recommendations of the Australian Law
Reform Commission (ALRC) the term sedition was removed and replaced with references to
'urging violence offenses'.
4.2.2) Defamatory laws should be for the protection of reputation not corruption
47
Ram Nandan v. State of Uttar Pradesh AIR 1959 All 101, 1959 CriLJ 1
48
Tara Singh v. state of Punjab AIR 1950 SC 124
49
Ram Nandan v. State of U.P AIR 1959 Alld. 101
50
Sanskar Marathe v. State of Maharashtra & Ors, 2015 SCC Bom 587

25
The leader of the political party who appeals to the people to vote for him and his party, who
reaches out to the people on the basis of his party is also open for criticism by the people for
the very policies. Such criticism may not be in polite language and the tendency of the article
may be to excite people not to vote for the party or to support such leaders or to project the
leader as anti to a section of the society, such a criticism of the leader cannot be considered as
offence.51
Governments cannot file defamation suits against those political opponents and dissidents
who flag issues such as bad governance and corruption in public interest. criminal defamation
laws should not be used to quell political dissent 52 Justice Misra observed that a political rival
in a democracy, like any other common man, has the right to criticize the government of the
day. He further stated that democracy is predicated fundamentally on the ideas of criticism,
dissent, and tolerance, noting that the will, desire, aspirations and sometimes the desperation
of the people are expressed through such criticism. Defamation proceedings should not be
instituted in response to political criticism, including allegations of corruption in the
government or that a politician is unfit to run the government. 53 The Court reportedly stated
that, “you can’t use defamation cases to throttle democracy. This is not done. You are a
public figure and you have to face criticism … A government cannot be seen to use state
machinery to file criminal defamation cases against political opponents. Cases for criticizing
the government or bureaucrats create a chilling effect.54
ISSUE 5:
THE PROSECTION AGAINST ‘THE FLAVIAN EXPRESS’ AND MR. DOLFOPA
SORIAL IS LIABLE TO BE QUASHED
51
52
Vijayakanth V. Public Prosecutor (2017) 11 SCC 319
53
Subramanian Swamy v. Union of India
54

26
It is humbly Submitted that Freedom of Press is right that has to to be maintained in a
democratic society . But the section has taken care to indicate clearly that strong words under
lawful means used to express disapprobation of the measures of the Government with the
view to their improvement or alteration would not come within the section. Similarly,
comments, however, strongly worded, expressing disapprobation of actions of the
Government, without exciting those feelings which generate the inclination to cause public
disorder by acts of violence, would not be penal. Dissent and criticism of the government are
essential ingredients of robust public debate in a vibrant democracy. They should not be
constructed as sedition. Right to question, criticize and change rulers is very fundamental to
the idea of democracy.
Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not
actionable.55 The challenged statement must be more than a general reflection upon the
plaintiff’s character or qualities must reflect on her performance or be incompatible with the
proper conduct of her business are not actionable56.
5.1 There is commission of no offence Under section124-A and 500-A of penal code .
International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally
recognized standards for the protection of freedom of expression. However, misuse of
sedition and arbitrary slapping of charges are inconsistent with India's international
commitments.
It is not defamation to express in good faith any opinion whatever respecting the conduct of a
public servant in the discharge of his public functions or respecting his character so far as his
character appears in that conduct, and no further. 57 Nothing is said to be done or believed in
good faith which is done or believed without due care and attention.58
In other words, disloyalty to Government established by law is not the same thing as
commenting in strong terms upon the measures or acts of Government, or its agencies, so as
to ameliorate the condition of the people or to secure the cancellation or alteration of the
55
Gross v New York Times Co., 82 NY2d 146, 152 [1993],
56
Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997]
57
Channing Arnold v. King Emperor (1914) 16 BOMLR 544
58
Section 52 of Indian Penal Code

27
those acts or measure by lawful means that is to say, without exciting those feelings of
enmity and disloyalty which imply excitation to public disorder or the use of violence. 59
The essence of the offence of sedition under section 124-A, I.P.C., is the intention with
which the language of a speech is use and that intention has to be judged primarily from the
language itself. In forming an opinion as to the character of speech charged as sedition, the
speech must be looked at and taken as a whole, freely and fairly, without giving undue weight
to isolated passages and without pausing upon an objectionable sentence here or a strong
word there, and, in judging of the intention of the speaker, each passage, should be
considered in connection with the others and with the general drift of the whole. 60
Libel against any officer cannot constitute an offence against the State.61 In any functional
democracy, there will be trading of charges. The opposition will blame the Government and
vice versa. There will be accusations and counter accusations. If makers of such statements
are to be prosecuted for defamation, that would certainly have a chilling effect on freedom of
speech and expression. Of course, no right let alone the right under Article 19(1)(a) of the
Constitution of the India is absolute. In this case, the words uttered by the petitioner can be
said to constitute legitimate criticism and the petitioner cannot be said to have stepped
beyond the Lakshman Rekha.62 Citizenry right to criticize cannot be atrophied by constant
launching of criminal prosecution for defamation on each and every issue to silence the
critics because when criticism in a vibrant democracy in this manner is crippled, the
democracy which is best defined as the Government of the People, by the People, for the
People would lose its cherished values. 63 State uses these provision a little too freely to
suppress political dissent and bona fide criticism. 64
5.2 No Liabilty for obstruction of justice
59
Kedar Nath Singh v. State of Bihar 962 AIR 955, 1962 SCR Supl. (2) 769
60
Hanumanthaiya v. Govt of Mysore, (1948) 52 Mys HCR 265.
61
Kedar Nath Singh v. State of Bihar 962 AIR 955, 1962 SCR Supl. (2) 769
62
63
64

28
A free press depends on the free flow of information from the media to the people and from
the People to the media. Some individuals (referred to hereafter as sources) come forward
with secret or sensitive information, relying upon the reporter to convey it to a regional,
national or international audience in order to achieve publicity and stimulate public debate.
In many instances, anonymity is the precondition upon which the information is conveyed
from the source to the journalist .This may be motivated by fear of repercussions which might
adversely affect their physical safety or job security. In the circumstances, journalists have
long argued that they should be entitled to refuse to divulge both the names of their sources
and the nature of the information conveyed to them in confidence. The argument is used in
relation not only to written information, but also to other documents and materials, including
photographic images, published or unpublished. Journalists argue that without means to
protect their confidential sources, their ability, for example, to lay bare corruption of public
officials would be seriously impaired.
If a journalist has promised an informant that they will not disclose their identity, the
journalist (or their employer) is not compellable to give evidence that would disclose the
65
identity of the informant. In December 1994, the Council of Europe adopted a Resolution
on Journalistic Freedoms and Human Rights. 8 Principle 3(d) provides that the protection of
the confidentiality of journalists' sources enables journalists to contribute to the maintenance
and development of genuine democracy.66 In 2012, The Victorian parliament passed the Act
was introduced to ‘strengthen…the capacity of journalists to maintain the anonymity of their
sources’.67
65
Section 126(K) of the Evidence Act (Vic) 2008
66
4th European Ministerial Conference on Mass Media Policy.
67
Evidence Amendment (Journalist Privilege) Act (Vic) 2012 (the Journalist Privilege Act).

29
PRAYER
Wherefore in light of the issues presented, arguments advanced and authorities cited, it is
respectfully requests the Hon’ble Court to adjudge and declare that:
A. That the section 124A and 500A should be declared unconstitutional
B. That the proceeding established against appellant must be quashed and set aside.
C. That the restrainment order should be considered as violation of Fundamental Right
Whatever the court may deems fit in the interest of justice, equity and good conscious.
All of which is respectfully submitted.
Sd/-
On behalf of Mr. Dolfopa Sorial

Petitioner T40

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Memorial for Applicant

8th RMLNLU – SCC ONLINE INTERNATIONAL MEDIA LAW MOOT COURT

THE HON’BLE SUPREME COURT OF FLAVIA,

(Under Article 32, 136 of the Flavian Constitution)

IN THE CASE OF-

MR. DOLFOPA SORIAL, THE FLAVIAN EXPRESS

THE DEMOCRATIC REPUBLIC OF FLAVIA

“Case Concerning the Sedation and Defamation”.

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

8th RMLNLU SCC Online International Media Law Moot, 2020

ISSUE 1. THE ORDER OF RESTRAINMENT SOUGHT BY THE GOVERNMENT ON

1.1) ORDER ARE VOILATIVE OF SPEECH AND EXPRESSION

ISSUE 2. THE COURT ORDER DIRECTING MR. DOLFOPA SORIAL TO REVEAL

2.1) VOILATION OF FREEDOM OF PRESS

2.2) REFUSAL WAS JUSTIFIED

ISSUE 3. THE REFUSAL BY THE GOVERNMENT TO GRANT ACCESS TO THE

3.1) VOILATION OF RTI

3.2) AGAINST PRINCIPLE OF NATURAL JUSTICE

8th RMLNLU SCC Online International Media Law Moot, 2020

4.1.1) ARTICLE IS AN ILLUSTRATION OF PUBLIC OPINION

4.1.2) INTERNET SUSPENSION AND TYRANNOUS

4.2) ARBITRATY LEGISLATION

4.2.1) SECTION 124A CONTAINS UNREASONABLE

4.2.2) DEFAMATORY LAWS SHOULD BE FOR THE

ISSUE 5. THE PROSECTION AGAINT ‘THE FLAVIAN EXPRESS’ AND MR.

5.1) THERE IS COMMISION OF NO OFFENCE UNDER SECTION 124A AND 500A

5.2) NO LIABILITY FOR OBSTRUCTION OF JUSTICE

8th RMLNLU SCC Online International Media Law Moot, 2020

AIR All India Reports

Bomlr Bombay Law journal

Cr.L.J Criminal Law Journals

E.W.C.A England and Wales Highest Court Of Appeal

EHRR Essec Human Rights Review

Ibid In the same page

ICCPR Intentional Convention on Civil and Political Rights

SCC Supreme Court Cases

SCR Supreme court reports

U.D.H.R United Declaration of Human Rights

U.k. United Kingdom

U.S. United States

8th RMLNLU SCC Online International Media Law Moot, 2020

A.K.Gopalan v. State of Madras 45

Anuradha Bhasin v. UOI 45

Baker v. F & F Inv 38

Balwant Singh v. the State of Punjab 44

Cervantes v. Time, Inc 38

Dr.S.Ramadoss vs The Public Prosecutor 47

Golub v Enquirer/Star Group 48

Hanumanthaiya v. Govt of Mysore 49

Indira Nehru Gandhi v. Raj Narain 45

8th RMLNLU SCC Online International Media Law Moot, 2020

Lawrence D'Souza v. State of Bombay 45

M.R. Parashar v. Farooq Abdullah 44

Piyush Kantilal Mehta vs Commissioner Of Police 45

Ram Nandan v. State of U.P 37

Romesh Thappar v. State of Madras 35

Shreya Singhal v. Union of India 45

Tara Singh v. state of Punjab 46

Criminal Law: Cases and Materials K.D. Gaur

Criminal Procedure R.V. Kelkar

Halsbury's Laws of India

Human Rights Law - Howard Davis

International Law & Human Rights - Centr Law Agency