TEAM CODE- P-19

INTHE SUPREME COURT OF INDIANAUNDER ARTICLE 32 OF CONSTITUTION OF INDIANA

CITIZEN UNION FOR DEMOCRATIC RIGHTS & ORS (petitioner)v.UNION OF INDIANA (respondent)

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

MEMORIAL FILED ON BEHALF OF THE PETITIONER

Table of Contents

Table of Contents2List of Abbreviations3Index Of Authorities4Cases4Other Authorities5Statement of Jurisdiction6Statement of Facts7Arguments Presented8Summary of Pleadings9arguments advanced111) Whether the petitioner has locus standi in the present matter?112) Whether banning the documentary is the violation of Fundamental right of Freedom of Speech and expression?133) Whether banning the documentary is the violation of the fundamental right of freedom of press?154) Whether banning the documentary a reasonable restriction?17Prayer21

List of Abbreviations 1. Art Article2. Honble Honourable 3. & - and 4. Cal Calcutta5. Mad Madras6. All Allahabad 7. MP- Madhya Pradesh8. AIR All India Reporters9. SCC Supreme Court Cases10. Edn Edition11. Ltd Limited12. Ors others 13. P&H- Punjab and Haryana14. UP Uttar Pradesh15. Bom Bombay16. SCR Supreme Case Reporters 17. Ch chapter 18. Para paragraph

Index Of Authorities

CasesAveek Sarkar v State of West Bengal 2014 (4) SCC 257.19Binod Rao v MR Masani (1976) 78 BomLR 125.17Charles Bradlaugh v R (LR) 3 QBD 607 (CA).19Director General Directorate General of Doordarshan v Anand Patwardhan (2006) 8 SCC 433.17, 19Director of film festival v Gaurav Ashwin Jain (2007) 4 SCC 737.14Dr Ram Manohar Lohia v State of Bihar & Ors (1966) 1 SCR 709.18Express Newspapers Limited v Union of India AIR 1958 SC 578.18Fertilizer Corporation Kamgar v Union of India AIR 1981 SC 149.11Francis Coralie v Union Territory of Delhi AIR 1981 SC 746.12Indian Express Newspapers(Bombay) P ltd v UOI AIR 1986 SC 515.16Life Insurance Corporation of India v Prof Manubhai D Shah (1992) 3 SCC 637.16Maneka Gandhi v UOI (1978) 1 SCC 24813,14MC Mehta v Union of India & Others (1988) 1 SCC 471.12Ministry of Information v Cricket Association (1995) 2 SCC 161.15MRF Ltd v Inspector Kerala government AIR 1999 SC 188.17Mumbai Kamagar Sabha v Abdul Thai AIR 1976 SC 1455.11Naz Foundation v Govt of NCT of Delhi WP(C) No 7455/2001 (2 July 2009).12Romesh Thapar v State of Madras AIR 1950 SC 124.18S Rangarajan v P Jagjivan Ram and ors (1989) 2 SCC 574.15, 16Sakal papers v UOI AIR 1962 SC 305.15SF Gupta and others v Union of India AIR 1982 SC 149.11Shreya Singhal v UOI (2015) 5 SCC 1.19State of Madras v VG Row AIR 1952 SC 196.17State of WB v Subodh Gopal Bose AIR 1954 SC 95.13Sunil Batra v Delhi Administration (1978) 4 SCC 49412Virendra v State of Punjab AIR 1957 SC 896.17

Other AuthoritiesPublic Interest Litigation accessed on 17 September 2015.13Aharon Barak, The Role of a Supreme Court in a Democracy (116 Harvard Law Review, 2002) 107.12Express Newspapers Limited v Union of India AIR 1958 SC 578.18Janis M Kay R and Bradley A, European Human Rights Law (Oxford: Clarendon Press 1995) 157.17MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis 2014) 1020.14P19

-Memorial for Petitioner-2

Statement of Jurisdiction

The Petitioner humbly submits before Honble Supreme Court Public Interest litigation filed under article 32 of the Indiana Constitution.

The present memorandum sets forth the facts, contentions and argument in the present case.

Statement of Facts1. Indiana is a highly populated erstwhile colony that gained independence on 15th July 1948. After independence the Constitution makers gave emphasis on the rights of citizens and a separate chapter was made in Constitution relating to fundamental rights of citizens and the amendment procedure for this chapter was made very rigid. 2. Indiana is a union of states with a democratic setup of government. New Deligo is its capital. On 24th January 2012 in New Deligo a girl aged 22 was brutally gang raped in a city bus by 5 people on about 9.00 p.m. she succumbed to death due to vital injuries.3. The case was transferred to fast track court. All the accused were sentenced to death. Indiana Broadcasting Corporation is very prominent news channel. It also works for the rehabilitation of criminals and they habitually go to jail to check whether jail manuals are being complied with or not. 4. They sought permission from the superintendent of jail and conducted an interview of one of the convict in that brutal gang rape. After the completion of the interview they made a documentary and they were about to reveal it publicly on news channel by naming it Indianas daughter. But before the publication, its contents were leaked out and it was declared against the dignity of people by some activists of the country. Interview of the parents of the victim was conducted and they said that truth must come before public. However no authoritative decision had yet been made a social tinderbox ignited throughout country. Government banned the release of the documentary.5. Citizens Union for Democratic Rights is an NGO makes people aware of Fundamental Rights. Head of NGO Mr Azad filed PIL against the government on the documentary of IBC on 4th Feb 2015. They contended that it is the right of general public to know the mind set of criminals and by banning the documentary the union is violating the Fundamental Right of Freedom of Speech and expression of the citizens of Indiana.6. IBC also filed PIL that by banning it their Fundamental Right of Freedom of Press which is recognized under Article 19 of Constitution of Indiana. Supreme Court clubbed both the PILs and asked UOI to respond. UOI contended that this was a reasonable restriction, therefore no Fundamental Rights were violated.

Arguments Presented

The following questions have been presented before the Honourable Supreme Court for its determination:1. Whether the petitioner has Locus standi in the present matter?2. Whether banning the documentary is the violation of Fundamental right of Freedom of speech and expression?3. Whether banning the documentary is the violation of Fundamental right of Freedom of Press?4. Whether banning the documentary is not a reasonable restriction?

Summary of Pleadings1) Whether the petitioner has Locus standi in the present matter?

The petitioner humbly submits that they have locus standi in the present matter. The PILs filed by the petitioner for the violation of Fundamental Rights of Freedom of Speech and expression and Freedom of Press which are recognized under Article 19 of Constitution of Indiana. Since Freedom of Press affects large, massive number of people, a public interest litigation filed for the violation of this right should stand.

2) Whether banning the documentary is the violation of Fundamental right of Freedom of Speech and expression?

In the present case also the right of the IBC (Indiana Broadcasting Corporation) to make and exhibit the documentary is a part of its fundamental right of freedom of speech and expression and banning the documentary will amount to the violation of this right because the producer of a film can claim protection of Art. 19(1) a. A right of a film maker to make and exhibit his film is a part of his fundamental right of freedom of speech and expression.The petitioner contends that Govt. of Indiana being a State as envisaged under Article 12 of the Constitution, it must act within the structure of the Indiana Constitution and its actions must be informed with fairness, justice, non-arbitrariness and the principles of natural justice. The petitioner contends that govt. has deprived the petitioner of his freedom of expression guaranteed by Article 19(1)(a) of the Constitution of India. The act of government by banning the petitioners film also denies to the Indian citizens their right to be informed of and enlightened about important developments relating to the case which has affected the public and democratic character of the Indian State.

3) Whether banning the documentary is the violation of the fundamental right of freedom of press?In Indiana freedom of press is implied from the freedom of speech and expression guaranteed by Art. 19(1)(a). There is no specific provision ensuring freedom of press as such. The freedom of press is regarded as a species of which freedom of expression is a genus.It is now well settled by series of judgments of the Supreme Court that freedom of speech and expression includes the right to propagate ones views through the print media or through any other communication channel e.g. radio and T.V.Court have power to invalidate any administrative action which violates this right. In the present case the action of government of banning the documentary was the violation of freedom of press. Prohibiting from publishing its own views on a burning topic of the day constitute an encroachment on the freedom of speech and expression.

4) Whether banning the documentary is a reasonable restriction?The limitation imposed on the freedom should not be arbitrary or excessive, or beyond what is required in the situation in the interest of the public. Court would consider whether the restriction imposed on fundamental rights are disproportionate to the situation and are not the least restrictive of the choices. There should be proper balance between the restriction imposed and fundamental rights.In the present case the restriction imposed on the documentary does not satisfy the grounds given in Art. 19(2). Hence the restriction is not reasonable.

arguments advanced

1) Whether the petitioner has locus standi in the present matter?The petitioner humbly submits that they have locus standi in the present matter. The PILs filed by the petitioner for the violation of Fundamental Rights of Freedom of Speech and expression and Freedom of Press which are recognized under Article 19 of Constitution of Indiana. The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai[footnoteRef:1]. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India[footnoteRef:2]. Justice Krishna lyer in Fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the following reasons for liberalization of the rule of Locus Standi [1: Mumbai Kamagar Sabha v Abdul Thai AIR 1976 SC 1455.] [2: Fertilizer Corporation Kamgar v Union of India AIR 1981 SC 149.]

1. Exercise of State power to eradicate corruption may result in unrelated interference with individuals rights.2. Social justice wants liberal judicial review administrative action.3. Restrictive rules of standing are antithesis to a healthy system of administrative action.4. Activism is essential for participative public justice.Therefore, a public minded citizen must be given an opportunity to move the court in the interests of the public.The ideal of Public Interest Litigation was blossomed in S.P. Gupta and others vs. Union of India[footnoteRef:3], Bhagwati C.J. (as he then was) was even more explicit: Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons and such a person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for appropriate direction [3: SP Gupta and others v Union of India AIR 1982 SC 149.]

The court justified such extension of standing in order to enforce rule of law and provide justice to disadvantaged sections of society[footnoteRef:4].Furthermore, the Supreme Court observed that the term appropriate proceedings in Art.32 of the Constitution does not refer to the form but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a FR, any form will do. This interpretation allowed the Court to develop epistolary jurisdiction by which even letters or telegrams were accepted as writ petitions.[footnoteRef:5] [4: Aharon Barak, The Role of a Supreme Court in a Democracy (116 Harvard Law Review, 2002) 107.] [5: Sunil Batra v Delhi Administration (1978) 4 SCC 494; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746.]

In M.C. Mehta v. Union of India & Others[footnoteRef:6], the nuisance caused by the pollution of the river Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition has been entertained as a Public Interest Litigation. On the facts and in the circumstances of the case, the petitioner is entitled to move the Supreme Court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Boards constituted under the Water (Prevention and Control of Pollution) Act, 1974. In Naz Foundation v. Govt. of NCT of Delhi[footnoteRef:7], this case was filed to repeal Section 377 of the Indian penal Code. It was led by the Naz Foundation (India) Trust, a non-governmental organization, which filed a lawsuit in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi in the matter. Naz Foundation appealed to the Supreme Court of India against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the merits. The Court located the rights to dignity and privacy within the right to life and liberty guaranteed by Article 21 of the Constitution, and held that criminalization of consensual gay sex violated these rights. [6: MC Mehta v Union of India & Others (1988) 1 SCC 471.] [7: Naz Foundation v Govt of NCT of Delhi WP(C) No 7455/2001 (2 July 2009).]

In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. Provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India. The founding fathers envisaged the judiciary as a bastion of rights and justice. An independent judiciary armed with the power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courtsthe courts that have entertained all the PIL cases.At present, the court can treat a letter as a writ petition and take action upon it. But, it is not every letter which may be treated as a writ petition by the court. The court would be justified in treating the letter as a writ petition only in the following cases- It is only where the letter is addressed by an aggrieved person or a public spirited individual or a social action group for enforcement of the constitutional or the legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress.[footnoteRef:8] [8: Public Interest Litigation accessed on 17 September 2015.]

Therefore for the enforcement of the Fundamental Rights of both the parties, the Petitioner has locus standi in the present matter. The rights enumerated in Article 19(1) are those great and basic rights which are recognized as the natural rights inherent in the status of a citizen.[footnoteRef:9] [9: State of WB v Subodh Gopal Bose AIR 1954 SC 95.]

Since Freedom of Press affects large, massive number of people, a public interest litigation filed for the violation of this right should stand.

2) Whether banning the documentary is the violation of Fundamental right of Freedom of Speech and expression?

Freedom of speech is the bulwark of democratic process it is the mother of all liberties. In Maneka Gandhi v UOI[footnoteRef:10] Bhagwati J. said- [10: Maneka Gandhi v UOI (1978) 1 SCC 248.]

Democracy is essentially based on free debate and open discussion, for that it is the only corrective of government action in a democratic setup. Every citizen is entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussions of public matters is absolutely essential.

Article 19(1) a of the constitution of Indiana says that- All citizens shall have the rightto freedom of speech and expression.

The freedom of speech under Art. 19(1)(a) includes the right to express ones views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie, etc. It thus includes right to communicate and propagate or publish any opinion. But this right is subject to reasonable restriction being imposed under Art. 19(2).[footnoteRef:11] [11: MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis 2014) 1020.]

In the case of Director of film festival v. Gaurav Ashwin Jain [footnoteRef:12]Allahabad HC said that- [12: Director of film festival v Gaurav Ashwin Jain (2007) 4 SCC 737.]

The producer of a film can claim protection of Art. 19(1) a. A right of a film maker to make and exhibit his film is a part of his fundamental right of freedom of speech and expression.In the present case also the right of the IBC (Indiana Broadcasting Corporation) to make and exhibit the documentary is a part of its fundamental right of freedom of speech and expression and banning the documentary will amount to the violation of this right.The phrase speech and expression used in Art. 19(1) (a) has broad connotation. The right to paint, or sing or to dance or to write poetry or literature is also covered by Art. 19(1) (a) because the common basic characteristics of all these activities is freedom of speech and expression. [footnoteRef:13] [13: Maneka Gandhi v UOI (1978) 1 SCC 248; Usha Uthup v State of West Bengal AIR 1984 Cal 268.]

By the above interpretation of freedom of speech and expression SC has expanded the scope of Article 19.The decision of government of banning the documentary is arbitrary, unjust and unfairThe petitioner contends that Govt. of Indiana being a State as envisaged under Article 12 of the Constitution, it must act within the structure of the Indiana Constitution and its actions must be informed with fairness, justice, non-arbitrariness and the principles of natural justice. The petitioner contends that govt. has deprived the petitioner of his freedom of expression guaranteed by Article 19(1) (a) of the Constitution of India. The act of government by banning the petitioners film also denies to the Indian citizens their right to be informed of and enlightened about important developments relating to the case which has affected the public and democratic character of the Indian State. The documentary is the medium to understand the mind set of criminals. Freedom of speech and expression also includes right of general public to know by banning the documentary the government is depriving the citizens to understand the mind-set of criminals. Freedom to air ones views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound death-knel to democracy and would help usher in autocracy or dictatorship. Therefore, in any set up, more so in a democratic set up like ours, dissemination of news and views by popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2). It has been held by the Supreme Court that right of speech and expression includes right to acquire and import ideas and information about the matters of common interests in the case of Hamdard Dawakhana vs. Union of India[footnoteRef:14] and to answer any criticism leveled against one's views through any media LIC vs. Union of India[footnoteRef:15]. This freedom also includes right to impart and receive information through telecasting Ministry of Information vs. Cricket Association[footnoteRef:16]. It is thus quite clear that right to acquire and get information is a fundamental right under the Indiana Constitution. [14: Hamdard Dawakhana v Union of India (1960) 2 SCR 671.] [15: LIC v Union of India AIR 1993 SC 171.] [16: Ministry of Information v Cricket Association (1995) 2 SCC 161.]

3) Whether banning the documentary is the violation of the fundamental right of freedom of press?In Indiana freedom of press is implied from the freedom of speech and expression guaranteed by Art. 19(1)(a). There is no specific provision ensuring freedom of press as such. The freedom of press is regarded as a species of which freedom of expression is a genus.[footnoteRef:17] [17: Sakal papers v UOI AIR 1962 SC 305.]

It is now well settled by series of judgments of the Supreme Court that freedom of speech and expression includes the right to propagate ones views through the print media or through any other communication channel e.g. radio and T.V. In S. Rangarajan v. P. Jagjivan Ram and others[footnoteRef:18], the Supreme Court observed that the freedom of speech under Article 19(1)(a) means the right to express ones opinions by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and the right to propagate or publish opinion. The communication of ideas could be made through any medium, newspaper, magazine or movie. While dealing with the role of the courts in striking balance between the interest of freedom of expression and social interest, the Supreme Court observed [18: S Rangarajan v P Jagjivan Ram and ors (1989) 2 SCC 574.]

However, there must be a compromise between the interest of freedom of expression and social interests. Court cannot simply balance the two interests as if they are of equal weight. Courts commitment to 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 conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a spark in a powder keg.[footnoteRef:19] (Para 45) [19: S Rangarajan v P Jagjivan Ram and ors (1989) 2 SCC 574.]

It is the primary duty of Courts to uphold the said freedom and invalidate all laws and administrative actions which interfere with the freedom of press contrary to the constitutional mandate.[footnoteRef:20] [20: Indian Express Newspapers (Bombay) P ltd v UOI AIR 1986 SC 515.]

In Life Insurance Corporation of India v. Prof. Manubhai D. Shah[footnoteRef:21], SC observed:- [21: Life Insurance Corporation of India v Prof Manubhai D Shah (1992) 3 SCC 637.]

Freedom of speech and expression is a natural right which a human being acquires on birth. It is, therefore, a basic human right. The words freedom of speech and expression has to be broadly construed to include the freedom to circulate ones views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate ones views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air ones views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knel to democracy and would help usher in autocracy or dictatorship. (Para 8)So from all the above judicial pronouncements it is clear that freedom of press is also a part of freedom of speech and expression covered under Art. 19(1)(a) of the constitution and Court have power to invalidate any administrative action which violates this right. In the present case the action of government of banning the documentary was the violation of violation of freedom of press. Prohibiting from publishing its own views on a burning topic of the day constitute an encroachment on the freedom of speech and expression.[footnoteRef:22] [22: Virendra v State of Punjab AIR 1957 SC 896.]

Dissent from the opinion and views held by the majority and criticism and disapproval of measure initiated by a party in power make for a healthy political climate, and it is not for the Censor to inject into this the lifelessness of forced conformity. Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication.[footnoteRef:23] It is clear, on the basis of this and other decisions that, although censorship cannot per se be said to be unconstitutional, any attempt at imposing prior restraint on publication will have to meet the rigorous standards laid down under Articles 19(1)(a) and 19(2). [23: Binod Rao v MR Masani (1976) 78 BomLR 125.]

4) Whether banning the documentary a reasonable restriction?The petitioner humbly submits that banning the documentary is not a reasonable restriction. It is difficult to give exact definition of word reasonable. There is no definite test to adjudge reasonableness of a restriction. Each case is to be judged on its own merits, and no abstract standard or general pattern of reasonableness is applicable uniformly to all the cases. Supreme Court in the case of State of Madras v. V.G. Row[footnoteRef:24] said that- It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down and applicable to all the cases. [24: State of Madras v VG Row AIR 1952 SC 196.]

In the case of Director General, Directorate General of Doordarshan v. Anand Patwardhan[footnoteRef:25] Supreme Court, on the decision of government of not showing the documentary related to babri masjid demolition on doordarshan, said that- film maker has right to convey his perception on the oppression of women, flawed understanding of manhood and evils of communal violence throughout the film. [25: Director General Directorate General of Doordarshan v Anand Patwardhan (2006) 8 SCC 433. ]

The limitation imposed on the freedom should not be arbitrary or excessive, or beyond what is required in the situation in the interest of the public. [footnoteRef:26] The right to freedom of expression is probably the most universally accepted human right.[footnoteRef:27] [26: MRF Ltd v Inspector Kerala government AIR 1999 SC 188.] [27: Janis M Kay R and Bradley A, European Human Rights Law (Oxford: Clarendon Press 1995) 157.]

Any restriction on Article 19(1) (a) can only be valid if three conditions are met: - It is supported by the authority of law; The law in question is related to one or more of the permitted heads of restrictions laid down under Article 19(2); and the restriction is reasonable. It is also necessary that the procedure and the manner in which the restriction is imposed be just, fair and reasonable.[footnoteRef:28] [28: Express Newspapers Limited v Union of India AIR 1958 SC 578.]

Doctrine of proportionality:This doctrine means that Court would consider whether the restriction imposed on fundamental rights are disproportionate to the situation and are not the least restrictive of the choices. There should be proper balance between the restriction imposed and fundamental rights.In the present case government has imposed restriction on the freedom of speech and expression by banning the documentary. Respondent has contended that the restrictions imposed are reasonable and are covered under Art. 19(2). Respondent contended that restriction comes under- Public order and Decency or moralityOnly by analysing both we can say that whether they are reasonable or not. Public order: This ground was added by the First Amendment in 1951 and was to overcome the Supreme Courts ruling in Romesh Thapars[footnoteRef:29] case which had held that restrictions could not be imposed on grounds of public order. In Dr. Ram Manohar Lohia v. State of Bihar & Ors[footnoteRef:30]., public order was said to have more bearing to community than law and order. The even tempo of the life of the community constitutes public order, whether community is country as a whole or a particular locality. Disturbance of public order cannot encompass acts directed against individual or certain class of individuals, which do not affect public tranquillity. The degree of disturbance and its impact upon community life is the test to distinguish a breach of law and order from disturbance of public order. Public order is jeopardized when the act embraces large sections of the community and incites them to make further breaches of the law and order thereby subverting public order. [29: Romesh Thapar v State of Madras AIR 1950 SC 124.] [30: Dr Ram Manohar Lohia v State of Bihar & Ors (1966) 1 SCR 709.]

The documentary in question has no requirement of such tendency to disrupt public order. The Court in Shreya Singhal v UOI [footnoteRef:31] case also took resort to the clear and present danger test according to which a State cannot forbid or proscribe advocacy of use of force or of law violation in presence of constitutional guarantees of free speech and expression, except where such advocacy is directed to incite or produce imminent lawless action and is likely to incite or produce such action. This ban on the documentary does not stand good as per this test too because it allows the State to restrict free speech even when there is no such tendency in the information to incite or produce imminent lawless action. [31: Shreya Singhal v UOI (2015) 5 SCC 1.]

Decency or morality:In Director General, Directorate General of Doordarshan v. Anand Patwardhan[footnoteRef:32], the Supreme Court took note of the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific value. The community standards test was approved and applied by the Apex Court in a recent judgement given in the case of Aveek Sarkar v. State of West Bengal[footnoteRef:33]. This documentary is not affecting decency or morality in any way. Showing truth to the people of the country may not be obscene at all. People have full right to know. Further making a documentary on the event that has shocked the conscious of the nation is not against morality. There was no intention to corrupt the public. The scope of the word morality is not very clear under clause (2) of Article 19. The conception of morality differs from place to place and from time to time. Birth control and contraceptives were considered immoral at one time and there have been convictions for publishing literature dealing with contraception.[footnoteRef:34] And now it is no offence to discuss such matters, rather it is publicized. [32: Director General Directorate General of Doordarshan v Anand Patwardhan (2006) 8 SCC 433.] [33: Aveek Sarkar v State of West Bengal 2014 (4) SCC 257.] [34: Charles Bradlaugh v R (LR) 3 QBD 607 (CA).]

The documentary is not interfering into the right to privacy of the victim:As from the Para 7 of the facts it is clear that documentary is made by taking the interview of the parents of the victim who also said that truth must come before public which implies that they consented for the documentary and if a person is consenting to reveal something it is not the violation of right to privacy as they consented for the same and further even if it would have violated the right to privacy, IBC is not covered under the definition of Art. 12 and hence not the state and fundamental rights are only available against the state and IBC is a private authority.

PrayerIn the light of the arguments advanced and authorities cited, the Petitioner humbly submits that the Honble Court be pleased to adjudge and declare that:

1. Declare and hold that the ban imposed by the government on the documentary is the violation of freedom of speech and expression and freedom of press.2. Direct the Government to waive the ban.4. Order the respondents to reimburse the cost of litigation to the petitioners.5. Grant other reliefs as the court may deem fit.

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Counsel for petitioners Sd/-