Memorial for Petitioners

BEFORE THE HON’BLE HIGH COURT OF

DEHLIA

IN THE MATTER OF

MUKTI MEDIA PRIVATE LIMITED & ANR.

VERSUS

THE UNION OF INDIANA, THROUGH THE SECRETARY, MINISTRY OF

INFORMATION & BROADCASTING & ANR.

FILED UNDER ARTICLE 226 OF THE CONSTITUTION

UPON SUBMISSION TO THE HON’BLE JUSTICE OF THE HIGH COURT

Counsels for Petitioners-

1.TOMY CHACKO

2.NINA P AUGUSTINE

3.RAJU Y

MEMORIAL ON BEHALF OF THE PETITIONERS

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 Memorial for Petitioners

TABLE OF CONTENTS
S.No. CONTENTS PAGE NUMBER

1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4-6

3. STATEMENT OF JURISDICTION 7

4. STATEMENT OF FACTS 8-12

5. ISSUES PRESENTED 13

6. ARGUMENTS ADVANCED 14-20

7. PRAYER 21

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LIST OF ABBREVIATIONS

 & - AND
 AIR -ALL INDIA REPORTER REPORTER
 ANR - ANOTHER
 ART.- ARTICLE
 CEO- CHIEF EXECTIVE OFFICER
 COI- CONSTITUTION OF INDIA
 CrPC- CODE OF CRIMINAL CRIMINAL PROCEDURE, 1973
 DPSP- DIRECTIVE PRINCIPLES OF STATE POLICY
 DSP- DEPUTY SUPERINTENDENT OF POLICE
 Dt. -DATED
 Guj. -STATE OF GUJARAT
 HC - HIGH COURT
 NCT- NEAR CAPITAL TERRITORY
 ORS- OTHERS
 R/W - READ WITH
 SC- SUPREME SUPREME COURT OF INDIA
 SCC -SUPREME COURT CASES
 SEC- SECTION  
 U/S- UNDER SECTION
 UP - STATE OF UTTAR PRADESH PRADESH
 V. - VERSUS

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INDEX OF AUTHORITIES
Cases

 Haryana State Industrial Corporation v. Cork Mfg. Co. , AIR 2008 SC 56

 Pawan Kumar v. State of Haryana, (2003) 11 SCC 241

 Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.

 Chunnilal Mehta v. Century Spinning & M Co. Ltd. , AIR 1962 SC 1314

 Kathi Ranig Rawat v. The State of Saurashtra, AIR 1952 SC 123.

 Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520

 A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani,

AIR 1961 SC 1506.

 Whirlpool’s Corp. v. Registrar of Trade Marks AIR 1999 SC 22.

 Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673.

 Re: Harijai Singh and Anr; In Re: Vijay Kumar AIR 1997 SC 73

 Life Insurance Corporation of India v Prof. Manubhai D. Shah, AIR1993 SC 171

 Express Newspapers v Union of India, AIR 1958 SC 578

 Samarias Trading Co. Pvt. Ltd. Vs: S. Samuel and Ors. AIR 1985 SC 61.

 Sakal Papers (P) Ltd. v Union of India, AIR 1962 SC 305.

 Tata Press v Mahanagar Telephone Nigam Ltd and Ors.AIR 1995 SC 2438.

 State v Baboo Lal, AIR 1956 All 571

 Southeastern Promotions Ltd v. Conrad, 420 US 546, 559 (1975)

 Near v. Minnesota, 283 US 697(1931)

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 New York Times Co v. United States, 403 US 713(1971)

 Nebraska Press Association v. Stuart, 427 US 539(1976)

 Babulal v. State of Maharashtra, 1961 SCR (3) 423, 435

 Arcara v. Cloud Inc, 478 US 697(1986)

 Kameshwar Prasad v. State of Bihar, 1962 SCR Supp (3) 369.

 Secretary and Curator, Victoria Memorial Hall v Howrah Gantantrik Nagrik Samity AIR

2010 SC 1285.

 Madhya Pradesh Industries v Union of India AIR 1966 SC 671.

 Bhagat Raja v Union of India, AIR 1967 SC 1606

 S.N. Mukherjee v Union of India, AIR 1990 SC 1984

 Mahindra and Mahindra Limited v Union of India AIR 17979 SC 698.

 G. Vallikumari v Andhra Education Society 2010 (2) SCC 497,511.

 R. Rajgopal v State of Tamil Nadu, AIR 1995 SC 264, ¶ 18

 Indu Jain v Forbes Incorporated, IA No. 12993 of 2006 in CS (OS) No. 2172 of 2006, ¶

173.

Statutes

 CONSTITUTION OF INDIA

Books

 V. N Shukla’s Constitution of India (Thirteenth Edition) Eastern Book Company,

Lucknow

 Halsbury’s Laws of England 1374 (5th ed., Vol. 11.3, LexisNexis Butterworths 2010).

 MP Jain, Constitution of India, 2013 edition.

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Online Database

 SCC Online, Stable Source: SCC Online, Stable Source: www.scconline.com

 Manupatra, Stable Source: Manupatra, Stable Source: www.manupatra.com

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 Memorial for Petitioners

STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble High Court of Bangla under Article 226 of the
Constitution, 1950.

“Article 226. Power of High Courts to issue certain writs- 1) Notwithstanding anything in
Article 32 every High Court shall have powers, throughout the territories in relation to which it
exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose,

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories,

(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without (a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and (b) giving such party an opportunity of being heard, makes an
application to the High Court for the vacation of such order and furnishes a copy of such
application to the party in whose favour such order has been made or the counsel of such party,
the High Court shall dispose of the application within a period of two weeks from the date on
which it is received or from the date on which the copy of such application is so furnished,
whichever is later, or where the High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open; and if the application is not
so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the
expiry of the aid next day, stand vacated,

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(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32.”

STATEMENT OF FACTS
 Mukti Media Private Limited (“MMPL”) was incorporated in the year 2003 under
Companies Act, 1956. MMPL is involved in the business of media and entertainment. It
broadcasts a television channel called “Moksha”. MMPL is also involved in the business
of production and syndication of entertainment and allied information content of a
spiritual nature. As per Ministry of Information & Broadcasting (“MIB”), it is a non-
news and current affairs channel. Before MMPL commenced the relevant business, it
wrote letters to MIB in December 2003 and in early 2004, seeking permission to uplink
“Moksha”. Upon receipt of the said letters by MIB, after considering all aspects, MIB
granted formal permission to MMPL to uplink “Moksha” vide its letter dated 14.05.2004.
The permission was for a period of 10 years.
 Baba Bhatuk is a spiritual guru. In the year 2008, he started setting up gaushalas. Ever
since, he has silently and relentlessly been working for the welfare of cows. His spiritual
discourses are laced with humor, practicality and wisdom. They are regularly aired on
“Moksha”, live or otherwise. As a matter of principle, he never discussed about his work
in the field of cow welfare during his spiritual discourses. He would gracefully avoid
questions asked to him as to his work in the field of cow welfare.
 On 01.01.2015, a cow protection camp was held at Burari grounds, Dahelia. It was aired
live on “Moksha”. As per various media reports, more than one lakh persons are said to
have participated in the said camp. Within less than a week, Baba Bhatuk submitted an
application to the Municipal Corporation of Dahelia, proposing to take Ramlila Maidan
on rent, subject to the general terms and conditions, for holding a cow protection camp
called “Gau Raksha Shakha” for 10,000 people between 01.02.2015 to 10.02.2015. He
also submitted an application to the Deputy Commissioner of Police (Central District)
seeking permission for holding “Gau Raksha Shakha”, for which permission was granted
by the Deputy Commissioner of Police (Central District) vide his letter of January 2015.
This permission was subject to terms and conditions to facilitate smooth conduct of the
camp, for example, deployment of sufficient number of volunteers by Baba Bhatuk at

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Ramlila Maidan. From 01.02.2015 to 10.02.2015, “Gau Raksha Shakha” was aired live
on “Moksha”. On 09.02.2015, it was resolved by Baba Bhatuk, all volunteers at the camp
styled as “Gau Yodhdha Jhund” and several persons attending “Gau Raksha Shakha” that
a petition shall be presented to Central Government to pass a law imposing a complete
ban on cow slaughter. Baba Bhatuk, “Gau Raksha Shakha”, “Gau Yodhdha Jhund” and
the resolution became trending topics on social media.
 Several news channels extensively covered Baba Bhatuk's consistent role in the
establishment and maintenance of gaushalas. They described “Gau Raksha Shakha” and
“Gau Yodhdha Jhund” as milestones in Baba Bhatuk's cow welfarism. Mr. Skandagupta
Chaturvedi is an outspoken journalist. He is with Indiana's leading news channel called
“Democratic TV”. He projected Baba Bhatuk as “The True Son of Mother Cow”. Some
news channels criticised Baba Bhatuk for shifting from “cow welfare” to “cow
protection”. The news channel which used to be Indiana's leading news channel i.e.,
“Fraternity TV”, described Baba Bhatuk's shift from “cow welfare” to “cow protection”
as “From Wisdom To Vigilantism”. On 10.02.2015, Mr. Idrees Suleiman attended the
closing ceremony of “Gau Raksha Shakha”. The said ceremony was also aired live on
“Moksha”. When it was his turn to speak, he only said the following: “Gau Raksha
Shakha” is no small step to protect cows, it is a great leap in the direction of cow
welfarism, which is a part of Indiana's spiritual culture. Moksha guarantees cow
protection. Cow protection guarantees Moksha. The time has come for cow slaughter to
guarantee Mrityu. Gau Maata Ki Jai, Jai Hind, Jai Bharat. Shukhriya.”
 For the next few days, “Moksha” repeatedly aired Mr. Idrees Suleiman's speech as well
as Mr. Chaturvedi's declaration on “Democratic TV”. For the next few months, highlights
of “Gau Raksha Shakha”, especially the events of 09.02.2015 and 10.02.2015 and
additionally, Mr. Chaturvedi's declaration on “Democratic TV” were aired on “Moksha”
on a daily basis. On 15.08.2015, Mr. Skandagupta Chaturvedi was interviewed by Mr.
Xavier Rodrigues. The said interview was aired live on “Moksha”. During the course of
the interview, Mr. Xavier Rodrigues applauded Mr. Skandagupta Chaturvedi for
defending Mr. Idrees Suleiman's freedom of speech and expression. The said interview
became a trending topic on social media. “Fraternity TV” severely criticised the said
interview and it was described as “The Death of Moksha.”

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 In the last week of August 2015, MMPL received a written warning from MIB. It was
with reference to “Moksha” repeatedly airing Mr. Chaturvedi's declaration on
“Democratic TV” as well “Moksha” airing live the interview of Mr. Chaturvedi. MIB's
warning was on the ground that “Moksha” is a non-news and current affairs channel, and
hence, it could not have aired the said declaration on “Democratic TV” and Mr.
Chaturvedi's live interview. Upon receipt, MMPL tendered a written apology in the first
week of September 2015. However, MMPL specifically denied the charge that it was not
entitled to air Mr. Chaturvedi's declaration on “Democratic TV” and the live interview of
Mr. Chaturvedi. Mr. Bhairav Nath, Mr. Tashi Gyaltsen and Mr. Bensiyon Sassoon
ensured that MMPL is very cautious as to the kind of content which is aired on
“Moksha”. In fact, “Moksha” went to the extent of distancing itself from Baba Bhatuk.
Advertisement revenue suffered a major setback. The popularity of channels seen as
competitors of “Moksha” like “Dhyaana”, “Kalma”, “Lamb of God” and “Shakya”
skyrocketed. These are channels of a powerful MNC called Woodstock Corp. Mr. Idrees
Suleiman and Mr. Xavier Rodrigues successfully convinced Mr. Bhairav Nath, Mr. Tashi
Gyaltsen and Mr. Bensiyon Sassoon that MMPL needs to take aggressive steps to
reinvent “Moksha”. Accordingly, the directors of MMPL replaced key officials of
MMPL and put in place various strategies to enable “Moksha” to stay relevant.
Surprisingly, several disgruntled journalists of “Democratic TV” and “Fraternity TV”
joined MMPL. MMPL saw a surge in investments.
 In April 2016, some students of BDC organised a debate on death penalty in the college
campus. It was called, “A Noose Without A Spirit : An Insight Into A Hangman's Spirit”.
The debate was to be moderated by Baba Bhatuk. The debate was aired live on
“Moksha”. During the hour long debate, several students raised slogans against Baba
Bhatuk. He made it a point to ensure that the debate does not swerve in the direction of
glorifying Mr. Kapala. He emphasised that the people of Chirag Pradesh need to turn to
spirituality and do serious introspection. One of the students, Mr. Kranti, is looked up to
by most students of BDC and almost by all villagers. As much as he is a candid and frank
boy, he kept silent throughout the debate. On public demand that he gives his views, he
reluctantly said the following from his seat: “With cow vigilantes like Baba Bhatuk
around, a small and polluted tribal like me cannot say much. Comrade Kapala, we are

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ashamed that your killers are alive. We want Moksha from injustice. We want Moksha
from oppression. We want Moksha from cow vigilantism. We want Moksha from
“Democratic TV” and we want Moksha from Dwivedis, Trivedis and that Chaturvedi.
We shall take Moksha, by blood, by acid and by whatever it takes.” Mr. Kranti's short
speech was not really vibrant. However, it was met with roaring cheers from the public.
The dominant slogan was, “Kapala Kranti, Zindabad”. Mr. Kranti ran to the stage, seized
the microphone and vivaciously said the following: “Baba Bhatuk Murdabad. Long Live
Comrade Kapala.” Baba Bhatuk snatched the microphone from Mr. Kranti and said the
following, in an offensive tone: “This whole village will hang like that naxalite Kapala,
and you, Kranti, you will be lynched. You are safe till the time you are in your
uncivilised and polluted Mosokoso. Get out of Mosokoso and you will be beaten to death
by my Gau Yodhdhas. Cow milk is alkaline enough to neutralise your acid.” Several
gunshots were fired in the air in the college campus and the dominant slogan was, “April
Revolution!” There was a commotion. Baba Bhatuk as well as Mr. Kranti were nowhere
to be seen. Immediately thereafter, at about 9:30 in the morning, riots erupted in the
college campus and it spread like fire. Mosokoso village was engulfed in riots. “Moksha”
aired the riots live, in bits and pieces. The riots presented an excellent opportunity to the
extremists in Mosokoso to add to the political and governance vacuum, by indulging in
unprecedented and mindless violence. Central Armed Police Forces deployed in Chirag
Pradesh and Chirag Pradesh's Special Forces tried to take charge of the situation.
“Moksha” aired Live the progress made by the said forces as well as the progress made
by the extremists. At about 11:00 in the morning, “Moksha” reported that Mr. Kranti has
fallen prey to Chirag Pradesh's Special Forces. At about 11:30 in the morning, there were
3 high intensity bomb blasts in Diyasarai, which is the capital of Chirag Pradesh at a
distance of about 500 kilometres from Mosokoso. Central Government provided
Commando Battalions for Resolute Action and Indiana Reserve battalions and provided
helicopters for anti-naxal operations. The movement of these battalions as well as the
progress made by the extremists was aired live on “Moksha”. By about 3:30 in the
afternoon, the situation was by and large under control. It was learnt from reliable sources
that rather miraculously, Mr. Kranti did not succumb to his injuries. Baba Bhatuk's
disfigured corpse indicated that an acid bath was administered on him.

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 MMPL received a show cause notice in April 2016 issued by MIB, in relation to live
airing of Mosokoso attack. Thereby, it was asked to show cause within 15 days from its
receipt as to why action as per the provisions of Uplinking and Downlinking Guidelines,
the terms and conditions of the permission dated 14.05.2004 and the provisions of
Section 20 of The Cable Television Networks (Regulation) Act, 1995 should not be taken
against it. While responding to the aforesaid show cause notice, MMPL submitted that
“Moksha's” coverage of Mosokoso attack was completely balanced and responsible. MIB
was not convinced with MMPL's response.
 From 00:02 hours on 31.05.2016, “Moksha” has been airing purely spiritual content. On
account of the anti-national banter, it often plays spiritual music in the tune of famous
patriotic songs like “Mere Desh Ki Dharti” and “Ae Watan Ae Watan”. MMPL received
a show cause notice dated 16.01.2017 (“SCN dated 16.01.2017”) on 19.01.2017, issued
by MIB. Copy of SCN is Annexure B. MMPL has filed a writ petition before Hon'ble
High Court of Dahelia, challenging the constitutional validity of Uplinking and
Downlinking Guidelines. Mr. Sukhbir Bhatti is a shareholder in MMPL. He is the second
petitioner in the said Writ petition. Vide the said writ petition, MMPL has also prayed for
setting aside of SCN dated 16.01.2017 and stay of its operation during the pendency of
the Writ petition.

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ISSUES RAISED

ISSUE –1
WHETHER THE WRIT PETITION FILED BY MUKTI MEDIA PRIVATE LIMITED
CHALLENGING THE CONSTITUTIONAL VALIDITY OF UPLINKING AND
DOWNLINKING GUIDELINES IS MAINTAINABLE?

ISSUE –2
WHETHER MUKTI MEDIA PRIVATE LIMITED’S ARTICLE 19 HAVE BEEN
INFRINGED?

ISSUE –3
WHETHER SETTING ASIDE OF SHOW CAUSE NOTICE DATED 16.01.2017 AND
STAY OF ITS OPERATION IS ACCEPTABLE AND WHETHER THE SHOW CAUSE
NOTICE IS ARBITRARY AND AGAINST LAW?

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ARGUMENTS ADVANCED

ISSUE –1 THE WRIT PETITION FILED BY MUKTI MEDIA PRIVATE LIMITED

CHALLENGING THE CONSTITUTIONAL VALIDITY OF UPLINKING AND
DOWNLINKING GUIDELINES IS MAINTAINABLE?

Jurisdiction of HC under Article 226 can always be invoked.

It is humbly submitted before this Hon’ble Court that whenever a question of law of general
public importance arises the jurisdiction can be invoked. The jurisdiction conferred under Art.
226 on the High Court are corrective one and not a restrictive one. 1 A duty is enjoined upon the
High Court to exercise its power by setting right the illegality in the judgments is well-settled
that illegality must not be allowed to be perpetrated and failure by the High Court to interfere
with the same would amount to allowing the illegality to be perpetuated. 2 It has been held in
plethora of cases that when the question of law of general public importance arises, the
jurisdiction of High Court can be invoked. In the present case, the issue involves matter of
General Public Importance and hence, entitled to be maintainable. It is humbly submitted that the
expression "substantial question of law"3 is not defined in any legislation. Nevertheless, it has
acquired a definite connotation through various judicial pronouncements. A Constitution Bench
of the Apex Court, while explaining the import of the said expression, observed that: “The
proper test for determining whether a question of law raised in the case is substantial would, in
our opinion, be whether it is of general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an open question in the sense that it is

1
Haryana State Industrial Corporation v. Cork Mfg. Co. , AIR 2008 SC 56
2
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241
3
Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.

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not finally settled by this Court or by the Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative views.”4

In the present case, the question of law involved in appeal is of recurring nature which has been
raised in plethora of cases. Hence, it is humbly submitted before this Hon’ble High Court of
India that the matter involves substantial question of law and hence entitled to be maintainable.

The SC is not precluded from going into the question of facts under article 226, if it considers it
necessary to do so.5 The Article 226 uses the wording “in any cause or matter”. This gives widest
power to this court to deal with any cause or matter. It is, plain that when the High Court reaches
the conclusion that a person has been dealt with arbitrarily or that a court or tribunal has not
given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of
facts, or otherwise can stand in the way of the exercise of this power.

MMPL’s fundamental right has been infringed

The media is the Fourth limb of a democratic system, the legislature, executive and judiciary
being the other three.  While legislature prepares the law for the society and the executive takes
steps for implementing them, the third stepping-stone is the judiciary, which has to ensure
legality of all actions and decisions.  The Fourth Estate i.e. the press has to operate within the
framework of these statutes and constitutional provision to act in public and national
interest.  This is indicative of the fact that nobody is above law.  When the Constitution of India
guaranteed freedom of expression and speech to its citizens, it ensured that the freedom was not
absolute and any expression, by way of words, speech or visual medium, did not violate any
statutory provisions enacted by legislature and executed by the executive.  If the media,
electronic or print, exceeded its jurisdiction, the courts came forward to ensure that violation of
the Fundamental rights by the media does not go unchecked. Freedom of the media is indeed an
integral part of the freedom of expression and essential requisite of a democratic set up.  The
Indian Constitution has granted this freedom by way of Fundamental Right.  The media, which is
obligated to respect the rights of individual, is also obligated to work within the framework of
legal principles and statutes.  These principles/statutes have been framed by way of minimum

4
Chunnilal Mehta v. Century Spinning & M Co. Ltd. , AIR 1962 SC 1314
5
Kathi Ranig Rawat v. The State of Saurashtra, AIR 1952 SC 123.

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standards and do not intend to detract from higher standards of protection to the freedom of
expression i.e., Article 19(1)(a).

The existence of an alternative remedy is no bar to file petition

It is humbly submitted before the Hon’ble Court that the remedy under Article 226 of the
Constitution is discretionary remedy.6 The Court is vested with power to entertain the petition
where there occurs gross miscarriage of justice and effective remedy is not available. This rule of
exhaustion of the statutory remedy is not rigid but somewhat flexible and it is primarily a matter
of the discretion of the writ court. 7 Reliance is placed upon the decision in the case of
Whirlpool’s Corp. v. Registrar of Trade Marks,8 in which it was held by the Apex Court that the
jurisdiction of the High Court in entertaining a writ petition under article 226 of the Constitution
would not be affected although there exists alternative statutory remedies. Lastly, it is submitted
that a writ petition is maintainable when the lis involves a public law character and when the
forum chosen by the parties would not be in apposition to grant appropriate relief. 9 Question as
to when discretionary jurisdiction is to be exercised or refused has to be determined having
regard to the facts and circumstances of each case. No hard and fast rule can be laid down in this
regard.10

6
Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520
7
A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506.
8
Whirlpool’s Corp. v. Registrar of Trade Marks AIR 1999 SC 22.
9
M.P. Jain, Indian Constitutional Law, 415(7th Ed., 2014).
10
Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673.

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ISSUE –2 WHETHER MUKTI MEDIA PRIVATE LIMITED’S ARTICLE 19 HAVE

BEEN INFRINGED?

Freedom of the press has been called the “mother of all other liberties” by the Supreme Court. 11
It was held in Life Insurance Corporation of India v Prof. Manubhai D. Shah that the right to free
speech includes the freedom of ideas as well as their publication and circulation. 12 In Express
Newspapers v Union of India, the Supreme Court held that the “freedom of the press rests on the
assumption that the widest possible dissemination of information from diverse and antagonistic
sources is essential to the welfare of the public.”13 Publicity has been recognized as the ‘very soul
of justice’.14 In light of these judgments, it is submitted that our judiciary has adopted a strong
position in favour of freedom of the press and has constantly sanctioned against unreasonable
restrictions.

In Sakal Papers (P) Ltd. v Union of India 15 the Supreme Court resoundingly held that even if
there are different aspects to running a media organization, including those that do not directly
concern dissemination of news and information, any interference with the right to free speech
can only be permitted by the restrictions provided under Article 19 (2). However, there is
nothing in clause (2) of Article 19 which permits the State to abridge this right on the ground of
conferring benefits upon the public in general or upon a section of the public. It is not open to the
State to curtail or infringe the freedom of speech of one for promoting the general welfare of a
section or a group of people unless its action could be justified under a law competent under
clause (2) of Article 19.

11
In Re: Harijai Singh and Anr; In Re: Vijay Kumar AIR 1997 SC 73
12
Life Insurance Corporation of India v Prof. Manubhai D. Shah, AIR1993 SC 171
13
Express Newspapers v Union of India, AIR 1958 SC 578
14
Samarias Trading Co. Pvt. Ltd. Vs: S. Samuel and Ors. AIR 1985 SC 61.
15
Sakal Papers (P) Ltd. v Union of India, AIR 1962 SC 305.

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This view was reiterated in Tata Press v Mahanagar Telephone Nigam Ltd and Ors.16 where a
three judge bench of the Supreme Court emphasized that the only permissible restrictions on free
speech could be those envisaged in Article 19 (2) and that a provision intended to curtail any
other fundamental right would be struck down if it directly impacts the right under 19 (1) (a).

ISSUE –3 WHETHER SETTING ASIDE OF SHOW CAUSE NOTICE DATED

16.01.2017 AND STAY OF ITS OPERATION IS ACCEPTABLE AND WHETHER THE
SHOW CAUSE NOTICE IS ARBITRARY AND AGAINST LAW?

It is humbly submitted before the Hon’ble Court that the show cause notice dated 16.01.2017 is
arbitrary and against law.

THE IMPUGNED NOTICE IMPEDES THE FUNCTIONING OF A FREE PRESS AS IT

ALLOWS THE NEWS MEDIA AUTHORITY TO CURTAIL MEDIA FREEDOM
ARBITRARILY WITHOUT ANY PROCEDURAL SAFEGUARDS AND IS
THEREFORE UNCONSTITUTIONAL.

It is submitted that the substantive and procedural elements of laws that impose restrictions on
fundamental rights should be tested for reasonableness. The right infringed, the aim of the
restriction and the proportionality of the same should be looked into. It is further submitted that
unreasonableness is the antithesis of equality. It was notably held by the Allahabad High Court in
State v Baboo Lal17 that vesting the power to curtail the freedom of speech and expression in the
absence of procedural safeguards such as a requirement to give reasoning and containing a
provision for appeal render the impugned show cause notice unconstitutional.

THE IMPUGNED SHOW-CAUSE NOTICE ALLOWS FOR ARBITRARY PRE-

CENSORSHIP

16
Tata Press v Mahanagar Telephone Nigam Ltd and Ors.AIR 1995 SC 2438.
17
State v Baboo Lal, AIR 1956 All 571

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 Memorial for Petitioners

A prior restraint is an administrative or judicial order that prohibits speech on the basis of its
content even before it occurs.18 Such restraints on speech are considered especially burdensome 19
and are permitted only in exceptional circumstances.20 A permissible restraint may only have
incidental effects on speech.21 Further, it must be found necessary to balance competing interests,
i.e., it must be shown that the injury sought to be prevented is irreparable and certain,
irrespective of its extent.22

In light of these judgments, the petitioners submit that the model of pre-censorship allowed by
the show cause notice is unconstitutional as it possesses the power to curtail the freedom of the
press even before knowing what the purport or opinion expressed in the content is. This approach
appears disconnected from the judiciary’s emphasis on using this method as the last alternative.

THE ORDER IS PROCEDURALLY UNREASONABLE

It is submitted that the impugned order is procedurally infirm as there is no reasoning supplied
for the curtailment order and there is no avenue for appealing against the same in the statute. It
settled law that adjudicatory authorities must supply reasons for their decisions as the person
disadvantaged has the right to know why his application was rejected. 23 The Supreme Court
emphasized the value of supplying reasons by declaring that reasoning was the heartbeat of
adjudication and that it was essential to replace subjectivity with objectivity. Sound reasoning
was recognized as the hallmark of a fair and reasonable adjudication. It has also been established
that providing reasoning is crucial to checking unscrupulous use of power as a reasoned order
will at best be reasonable and at worst be plausible.” 24 The Supreme Court has in fact gone on to
hold that higher courts are greatly disadvantaged when adjudicatory orders are passed without
reason as it becomes difficult for the court to find out the rationale behind them. 25 Reasons

18
Southeastern Promotions Ltd v. Conrad, 420 US 546, 559 (1975); Calvin R. Massey, American Constitutional
Law: Powers and Liberties (2nd ed. 2005).
19
Near v. Minnesota, 283 US 697(1931); New York Times Co v. United States, 403 US 713(1971); Nebraska Press
Association v. Stuart, 427 US 539(1976) ; Vincent Blasi, Towards a Theory of Prior Restraint: The Central Linkage,
66 Minnesota Law Review 11, 15-19 (1981).
20
Babulal v. State of Maharashtra, 1961 SCR (3) 423, 435; Lawrence H Tribe, American Constitutional Law 1045
(2nd ed. 1988).
21
Arcara v. Cloud Inc, 478 US 697(1986)
22
Kameshwar Prasad v. State of Bihar, 1962 SCR Supp (3) 369.
23
Secretary and Curator, Victoria Memorial Hall v Howrah Gantantrik Nagrik Samity AIR 2010 SC 1285.
24
Madhya Pradesh Industries v Union of India AIR 1966 SC 671.
25
Bhagat Raja v Union of India, AIR 1967 SC 1606

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 Memorial for Petitioners

should be supplied by the administrative authority irrespective of whether the decision is subject
to appeal, revision or judicial review. 26 A nonspeaking order should ordinarily be declared null
and void as it suffers from an error of law apparent on the face of the record.27

THE MEDIA’S RIGHT TO FAIR COMMENT IS BEING UNFAIRLY CURTAILED BY

THE SHOWCAUSE NOTICE

It was observed in R. Rajgopal v State of Tamil Nadu that public figures have the resources to
engage in public debate, defend themselves and counter criticism and therefore there must be no
bar on uninhibited public debate over matters of public concern relating to such individuals” 28
Thus, it is evident that public debate over a matter of public importance has been acknowledged
as a legitimate right of the press. A public figure is someone who’s “standing, accomplishment,
fame, mode of life or profession” gives the public a legitimate interest in their affairs.”29

MMPL received a show cause notice in April 2016 issued by MIB, in relation to live airing of
Mosokoso attack. Thereby, it was asked to show cause within 15 days from its receipt as to why
action as per the provisions of Uplinking and Downlinking Guidelines, the terms and conditions
of the permission dated 14.05.2004 and the provisions of Section 20 of The Cable Television
Networks (Regulation) Act, 1995 should not be taken against it. It was a public issue and thus
show cause notice is arbitrary.

26
S.N. Mukherjee v Union of India, AIR 1990 SC 1984
27
Mahindra and Mahindra Limited v Union of India AIR 17979 SC 698. Also See G. Vallikumari v Andhra
Education Society 2010 (2) SCC 497,511.
28
R. Rajgopal v State of Tamil Nadu, AIR 1995 SC 264, ¶ 18
29
Indu Jain v Forbes Incorporated, IA No. 12993 of 2006 in CS (OS) No. 2172 of 2006, ¶ 173.

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 Memorial for Petitioners

PRAYER
Wherefore in the light of the issues raised, arguments advance and authorities cited, it is humbly
prayed that the Hon’ble Supreme Court may be please to hold, adjudge and declare that;

 The Writ Petition Filed By Mukti Media Private Limited Challenging The Constitutional
Validity Of Uplinking And Downlinking Guidelines Is Maintainable.
 Mukti Media Private Limited’s Article 19 Have Been Infringed.
 Show Cause Notice Dated 16.01.2017 Should Be Set Aside And Stay Of Its Operation Is
Acceptable.

AND/OR

Pass any order that it deems fit in the interest of Justice, Equity and Good Conscience. And for
this act of kindness, the Petitioner as in duty bound, shall humbly pray.

Sd/-

Counsel for Petitioners

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