Team-I Before Constitutional Writ Jurisdiction U/Art.226 WP No

Team-I

Before

THE HONOURABLE HIGH COURT OF JUDICATURE AT BOMBAY

Constitutional Writ Jurisdiction U/Art.226

W.P. No. _____/2014

Mr Kane ...Petitioner 1

v.

Censor Board of India &Spike Mi

Productions

…Respondent 1

Clubbed With

W.P. No. _____/2014

Wolf 42X7 ...Petitioner 2

v.

Union of India &National Media Authority …Respondent 2

MEMORANDUM for THE RESPONDENT

MEMORIAL for THE APPLICANT -i-

TABLE OF CONTENTS

Table of Contents ..................................................................................................................... 1

List of Abbreviations ............................................................................................................... ii

Index of Authorities ............................................................................................................... iii

Cases ........................................................................................ Error! Bookmark not defined.

Book and Treatises ........................................................... Error! Bookmark not defined.

Constitutions and Statutes .................................................... Error! Bookmark not defined.

Statement of Jurisdiction ........................................................................................................ v

Synopsis of Facts ..................................................................................................................... vi

Arguments Presented............................................................................................................... x

Summary of Arguments ......................................................................................................... xi

Arguments Advanced .............................................................................................................. 1

1. THE MOVIE ‘CAIN AND ABLE’ IS NOT HIT BY ANY PROVISION OF THE

CINEMATOGRAPH ACT, 1952 ................................................................................................. 1

2. THE EXHIBITION OF THE MOVIE IS WITHIN THE SCOPE OF ARTICLE 19(1)(A) OF THE

CONSTITUTION ....................................................................................................................... 3

3. THERE ARE NO GROUNDS ON WHICH INJUNCTION CAN BE GRANTED TO RESTRAIN THE

EXHIBITION OF THE MOVIE ................................................................................................... 4

4. THE SECTIONS INTRODUCED BY THE PRESS COUNCIL AMENDMENT, 2014 ARE

CONSTITUTIONAL .................................................................................................................. 6

4.1. THERE IS A PRESUMPTION AS TO CONSTITUTIONALITY OF LEGISLATION ................... 6

4.2. EVEN IF THE PRESUMPTION IS SET ASIDE, THE RESTRICTIONS ALLOWED UNDER THE

AMENDMENT ARE VALID AND REASONABLE ........................................................................ 7

4.2.1. THE RESTRICTIONS ARE SUBSTANTIVELY REASONABLE.........................................7

4.2.2. THE RESTRICTIONS ARE PROCEDURALLY REASONABLE......................................... 8

5. THE ORDER DATED 10TH AUGUST 2014 IS VALID AND CONSTITUTIONAL ................... 10

5.1. THE ORDER PREVENTS POSSIBLE CONTEMPT OF COURT AND THEREBY ENSURES A

FAIR TRIAL ENVISAGED UNDER ARTICLE 21 OF THE CONSTITUTION ................................. 10

5.2. PRIOR RESTRIANT IS NOT A VIOLATION OF FREEDOM OF SPEECH AND EXPRESSION .. 13

Prayer ........................................................................................................................................ 1

-Table of Contents-

ii

LIST OF ABBREVIATIONS

¶ : Paragraph

A.P. : Andhra Pradesh

A.C. : Appellate Cases

AIR : All India Reporter

Anr. : Another

Bom. : Bombay

Cri.L.J : Criminal Law Journal

K.B. : King’s Bench

Ors. : Others

SC : Supreme Court

SCC : Supreme Court Cases

Sd/- : Signed

Supp. : Supplementary

U.P. : Uttar Pradesh

U.S. : United States

-Table of Contents-

iii

INDEX OF AUTHORITIES

Cases

Attorney General v BBC, 1981 AC 303(HL) ........................................................................... 11

Babulal v. State of Maharashtra, 1961 SCR (3) 423, 435. ...................................................... 13

Bhajan Lal v Jindal Strips Ltd, [1994] Supp 2 SCR 445. ........................................................ 10

Chintaman Rao v State of Madhya Pradesh, AIR 1951 SC 118 ............................................... 7

Director General, Directorate General of Doordarshan and Ors. vs. Anand Patwardhan and

Anr., (2006) 8 SCC 433. ........................................................................................................ 2

Directorate of Film Festivals v Gaurav Ashwin Jain, (2006) 8 SCC 433. ................................ 3

F.A. Picture International v. Central Board of Film Certification, AIR 2005 Bom 145. ......... 2

Gujarat Bottling Co. Ltd. Vs. Coca Cola Co., AIR 1995 SC 2372. .................................... 4, 11

Harijai Singh v Vijay Kumar, 1996(6) SCC 466. ...................................................................... 6

Indian Express Newspapers v. Union of India (1985) 1 SCC 641 ............................................ 6

John D. Pennekamp v.State of Florida, (1946) 328 US 331 ................................................... 11

K.A Abbas v Union of India, (1970) 2 SCC 780. ....................................................................... 3

Kameswar Prasad v. State of Bihar, 1962 SCR Supl. (3) 369, 382. ....................................... 13

Khare v State of Delhi, AIR 1950 SC 211 ................................................................................. 8

Kishan Chand Arora v Commissioner of Police, AIR 1961 SC 705. ........................................ 9

LIC v Manubhai D Shah, (1992) 3 SCC 637. ............................................................................ 3

Mahesh Bhatt v Union of India, (2009) 156 DLT 725. ............................................................. 3

Maneka Gandhi v Union of India, 1978 AIR 597. .................................................................... 7

Mohinder v Chief Election Commissioner AIR 1978 SC 851. .................................................. 9

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. .................................... 13

Near v. Minnesota, 283 US 697 .............................................................................................. 14

Nupur Talwar v Central Board of Film Certification, Writ Petition No. 945 of 2014, High

Court of Bombay, Ordinary Civil Jurisdiction. ..................................................................... 2

Panasam Labour Union v Madura Coats Ltd, AIR 1995 SC 2200. .......................................... 7

Pannalal Binjraj v Union of India, AIR 1957 SC 397. ............................................................. 9

R.K. Anand v Registrar, Delhi High Court, (2009) 8 SCC 106. ................................................ 4

Ram Krishna Dalmia v Shri Justice S R Tendolkar and Ors, AIR 1958 SC 538. ..................... 7

Ramji Lal Modi v. State of U.P., 1957 SCR 860 ..................................................................... 13

Reliance Petrochemical v Proprietors of Indian Express Newspapers Bombay (P.) Ltd., AIR

1989 SC 190. .......................................................................................................................... 4

Reliance Petrochemicals v Proprietor of Indian Express, 1988(4) SCC 592. ........................ 10

Sahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange Board of

India, 2013 (7) Bom Cr 929. ................................................................................................ 13

Sakal Papers v Union of India, AIR 1962 SC 305 ................................................................ 6, 8

Shamim Rehmaney vs. Zinat Dehalvi and Ors, 1971 CriLJ 1586 ........................................... 11

State of Madras v V.G. Row, AIR 1952 SC 196 ........................................................................ 7

-Table of Contents-

iv

State Of Maharashtra vs Rajendra Jawnmal Gandhi, CRIMINAL APPEAL NOS. 840 & 839

OF 1997 (Arising out of SLP (Crl.) Nos. 2510 /97 Crl. M.P. No.839/97) and SLP (Crl.)

No.1773/96) ......................................................................................................................... 11

The Employees’ Federation and TVS & Sons Ltd, 1996 87 Comp Cas 37 Mad. .................. 1, 2

The Superintendant, Central Prison, Fatehgarh v. Ram Manohar Lohia ............................... 13

Virendra v State of Punjab & Anr., AIR 1975 SC 896 ........................................................ 8, 13

Zahira Habibullah Sheikh & Anr vs State Of Gujarat, (2004) 4 SCC 158 ............................. 10

Law Commission Report

Law Commission, Trial By Media (Law Com No 200, 2006). ............................................... 23

Statutes

Press Council Act, 1978

Advocates Act, 1961

The Indian Medical Council Act, 1956

The Cinematograph Act, 1952

The Contempt of Courts Act, 1971

LIST OF BOOKS DD BASU, Constitutional Law of India, Prentice Hall of India Private Limited (New

Delhi, 7th ed., 1998).

DD BASU, Shorter Constitution of India, Wadhwa and Company (Nagpur, 13th ed., 2001).

HM SEERVAI, Constitutional Law of India, Universal Law Publishing Co. Pvt. Ltd. (New

Delhi, 4th ed., Vol.3, 1996).

MP JAIN, Indian Constitutional Law, Wadhwa and Company (Nagpur, 5th ed., Vol.1,

2003).

MP SINGH, V.N. Shukla’s Constitution of India, Eastern Book Company (Lucknow, 9th

ed., 1998).

-Statement of Jurisdiction-

v

STATEMENT OF JURISDICTION

THE RESPONDENTS IN THE TWO CLUBBED MATTERS HAVE THE HONOUR TO

SUBMIT THIS MEMORIAL BEFORE THIS HON’BLE COURT UNDER ARTICLE 226 OF

THE CONSTITUTION OF INDIA . THEY RESPECTFULLY SUBMIT TO THE

JURISDICTION OF THE HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY .

-Synopsis of Facts-

vi

SYNOPSIS OF FACTS

Noted businessman Mr Rosenbund Is found dead on the 12th of August 2013.

Immediately, the police arrests Mr Kane who was the deceased’s ex business partner

who also happened to be publically admired as a philanthropist. Mr. Kane was also in

charge of Dependence Industries which employed more than 100,000 employees. The

shares of Dependance Industries suffer a huge loss following reports of Mr. Kane’s

arrest.

On 14th August 2013, Mr Wells, an employee of Mr. Rosenbund surrenders to the

police confessing to have committed the murder. Police conducts preliminary

investigation and also carries out brain mapping and narco-analysis tests with the

consent of Mr. Wells. Being satisfied with the findings of this investigation, the police

arrests Mr. Wells and Mr. Kane is released and all charges against him are dropped.

Pursuant to this development, a number of news channels ran stories claiming that the

confession was nothing more than a ploy to shield Mr. Kane who was in fact

responsible for the murder. A number of theories ranging from souring of business

ties to an romantic relationship between the deceased and Mr. Kane’s daughter were

cited as possible motives.

The media coverage of the investigation is heavily criticized by a number of legal

luminaries and commentators who raise concerns regarding the channels’ constant

targeting of Mr. Kane. An opinion to the contrary also is held by certain members,

largely in journalistic circles that pressure from the media was essential considering

the clout enjoyed by a person like Mr. Kane.

-Synopsis of Facts-

vii

At a later stage of investigation, the police finds that Mr. Wells’ confession was made

only to shield Mr. Kane and that the former was not actually involved in the murder.

Mr. Kane is subsequently arrested and Mr. Wells is charged with destruction of

evidence, giving false evidence, interfering with the administration of justice and

criminal conspiracy.

After the arrest, the TV channels exclaim that their dogged persistence in the matter

was responsible for bringing Mr. Kane to justice. Mr. Kane requests the Supreme

Court to expedite his trial and this request is granted and it is scheduled to being in

early 2014.

On 13th March 2014, the Press Council Amendment Act, 2014 is passed by the

legislature. Information and Broadcasting Minister claims that this Act was designed

to welcome a second freedom, against the tyranny of the news media which subjects

innocent people to tremendous indignities on a daily basis.

Amendment made to PCI Act to enact three provisions. Section 3A creates a

‘National Media Authority and prescribes norms for the constitution, appointment and

removal of members.

Section 3B allows this Authority to suo moto or on the basis of a complaint issue

directions, delay broadcast for a period of one year after giving a fair hearing.

Section 3C prescribes conditions in which the News Media Authority can exercise its

powers under section 3B.

On 10th August 2014 the News Media Authority, after giving due hearing to

concerned parties, passes an order restraining all media outlets from commenting on

-Synopsis of Facts-

viii

the validity of any judgment passed in the Mr. Kane’s case for 4 weeks. A

clarification is later issued that the judgment can be reported but not commented on.

On 12 August 2014, the trial Court convicts Kane in a judgment based entirely on

circumstantial evidence. This judgment is criticized by a number of legal experts who

claim that this was a case of a trial by media. The judgment dismisses several of the

theories put forth by the media including the one alleging a romantic relationship

between the deceased and the Mr. Kane’s daughter.

Fearing an adverse market reaction to the judgment, the regulatory authority suspends

trading of Dependence Industries on 12th August 2014.

On the same day, Mr. Spike Mi, a prominent documentary film maker announces that

he has already made a movie called ‘Cain and Abel’ inspired by the events relating to

Mr. Rosenbund’s murder. The movie contains a disclaimer to the effect that any

resemblance between the movie and any real life incidents is purely coincidental. The

director claims that despite the similarity with the actual murder, details in the plot of

the movie were purely fictional. The actor playing the role of Mr. Kane comments

that the part was challenging considering it involved understanding the psyche of a

person who was prompted to kill someone very close to him.

The general opinion of the audience who watched the preview is that despite the

movie being loosely based on the murder of Mr. Rosenbund, the contents are largely

fictional. However, it is observed that certain scenes did seem very similar to some of

the rumours including the relationship between Mr. Kane’s daughter and Mr.

Rosenbund.

-Synopsis of Facts-

ix

A writ petition was filed by Mr. Kane before the Hon’ble Bombay High Court against

the Censor Board seeking an injunction preventing the grant of a censorship

certificate to the movie ‘Cain and Able’. Mr. Spike Mi’s company ‘Spike Mi’

Productions was also made a party to the said proceedings.

Wolf 42x7, a 24/7 news channel also filed a Writ in the Hon’ble Bombay High Court

challenging the constitutionality of the sections introduced by the Press Council

Amendment Act, 2014, and the order dated of 10th August, 2014 under section 3B of

the said Act. Mr. Kane was added as a party to these proceedings.

On 14th August, the Hon’ble Bombay High Court admitted the matters and clubbed

them together. The Order dated 10th August, 2014 was not stayed. Both matters were

then placed for hearing and final disposal on 27th September, 2014.

-Questions Presented-

x

QUESTIONS PRESENTED

ON BEHALF OF RESPONDENT I – CENSOR BOARD AND SPIKE MI

PRODUCTIONS

1. WHETHER THE MOVIE IS HIT BY ANY PROVISION OF CINEMATOGRAPH ACT, 1952.

2. WHETHER EXHIBITION OF THE MOVIE IS WITHIN SCOPE OF ARTICLE 19(1)(a)

3. WHETHER AN INJUNCTION SHOULD BE PASSED AGAINST EXHIBITION OF THE MOVIE.

ON BEHALF OF RESPONDENT II – UNION OF INDIA WITH NATIONAL MEDIA

AUTHORITY

4. WHETHER THE SECTIONS INTRODUCED BY THE PRESS COUNCIL AMENDMENT ACT, 2014

ARE CONSTITUTIONAL.

5. WHETHER THE ORDER DATED 10TH AUGUST 2014 IS VALID AND CONSTITUTIONAL.

-Summary of Arguments-

xi

SUMMARY OF ARGUMENTS

ON BEHALF OF RESPONDENT 1- CENSOR BOARD AND SPIKE MI

PRODUCTIONS

1. THE MOVIE ‘CAIN AND ABLE’ IS NOT HIT BY ANY PROVISION OF THE

CINEMATOGRAPH ACT, 1952

Section 5(B) (1) and (2) of the Cinematograph Act, 1952 have laid down the grounds under

which the certification of films is controlled. It is submitted that the movie is not hit by any

provision of the Cinematograph Act, 1952.

2. THE EXHIBITION OF THE MOVIE IS WITHIN THE SCOPE OF ARTICLE 19(1)(A) OF THE

CONSTITUTION

It is humbly submitted that under Article 19(1) (a) of the Constitution of India it is the

fundamental right of the producers of the movie ‘Cain and Able’ to have the movie exhibited.

Any restriction on the exhibition of the movie would amount to curbing the freedom of

speech and expression of the filmmaker.

3. THERE ARE NO GROUNDS ON WHICH INJUNCTION CAN BE GRANTED TO RESTRAIN

THE EXHIBITION OF THE MOVIE

It is submitted that there are no grounds on which injunction can be granted against the

release of the movie. The balance of convenience favours the release of the movie. Granting

of an injunction would cause huge losses for the filmmaker and thus the movie should be

allowed to be exhibited.

-Summary of Arguments-

xii

ON BEHALF OF RESPONDENT II- UNION OF INDIA/NATIONAL MEDIA

AUTHORITY

4. THE SECTIONS INTRODUCED BY PRESS COUNCIL AMENDMENT, 2014 ARE

CONSTITUTIONAL.

The sections introduced by Press Council Amendment, 2014 has a presumption of

constitutionality in its favour. Even if the presumption is set aside, the sections introduced

would still be constitutional because the restrictions allowed under the amendment is same

that of Article 19(2) and there is provision of natural justice in the form of fair hearing by a

qualified body. It is contented that restrictions are both substantively and procedurally

reasonable and hence the sections introduced are constitutional.

5. THE ORDER DATED 10TH AUGUST, 2014 IS VALID AND CONSTITUTIONAL.

The respondents submit that order passed by National Media Authority is valid and

constitutional and should not be set aside. The order passed prevents possible contempt of

court by not allowing prejudicial publications which can affect the pending appeal of Mr.

Kane and the trial of Mr. Wells. Further, the restriction on prejudicial publications thereby

ensures a free and fair trial as envisaged under Article 21 of the Constitution. Further, it is

also contended that prior restraint has been held to be valid under Indian law and courts have

recognised its importance in ensuring a free and fair trial.

-Arguments Advanced-

1

ARGUMENTS ADVANCED

ON BEHALF OF RESPONDENT I- CENSOR BOARD & SPIKE MI PRODUCTIONS

1. THE MOVIE ‘CAIN AND ABLE’ IS NOT HIT BY ANY PROVISION OF THE CINEMATOGRAPH

ACT, 1952

It is humbly submitted that the movie ‘Cain and Able’ is not barred by any section of the

Cinematograph Act, 1952 and thus the Censor Board of India should grant censorship

certificate to the movie.

The Cinematograph Act, 1952, provides the requisite mechanism for examination that helps

to maintain the balance between the liberty guaranteed under Article 19(1) (a) and the social

interests that need to be protected under Article 19(2) of the Indian Constitution and it is

important to note here that Article 19(2) has been practically read into Section 5 (B)-1 of the

said Act.1

The objectives of film censorship are well pronounced vide the guidelines under Section

5(B)-2.2 The Censor Board has to ensure that (i) anti-social activities such as violence are not

exemplified or justified (ii) the method of Criminal or other visuals or words that would in all

likelihood incite of any offence are not depicted; (iii) futile or avoidable scenes of violence,

brutality and terror are not exhibited; (iv) human sensibilities are not slighted by visuals of

vulgarity, obscenity and immorality (vi) the sovereignty and integrity of India are not

questioned; (vii) the security of the State should not be threatened; (viii) friendly relations

with foreign States should not be jeopardized and (ix) public order should be maintained, and

to ensure that the film is judged as an aggregate from the point of view of the overall impact

1The Employees’ Federation and TVS & Sons Ltd, 1996 87 Comp Cas 37 Mad.

2 Section 5 (B)-1 of the Cinematograph Act, 1952: “A film shall not be certified for public exhibition if, in the

opinion of the authority competent to grant the certificate, the film or any part of it is against 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 involves defamation or contempt of court or is likely to incite the commission of

any offence.”


2

that it has on the viewers and is adjudged in the light of current standards of the country and

the people of the country to whom the film caters to.3 The film should thus cater to the sense

and sensibility of the society failing which it will attract the provisions of the Censor Board to

restrain the movie from being displayed in public. In F.A. Picture International v. Central

Board of Film Certification,4 the Bombay High Court stated that the protection under Article

19(1) (a) of the Constitution is not limited to fictional depictions of artistic themes but also

extends to movies which are provide a balanced portrayal of social reality. Critical appraisal

is the cornerstone of democracy and the power of the film as a medium that conveys its

ability to contribute to that appraisal.5 Thus, a filmmaker has the constitutional right to not

only make movies, which portray the positive aspects of our society but also vices that are

present in our society.6 The Court opined in Nupur Talwar v Central Board of Film

Certification7 that when there are dissimilarities between the film and the case of the

petitioner and a disclaimer is issued by the filmmaker then no prima facie case can be made

out to grant any interim relief to the petitioner.

The movie ‘Cain and Able’, though based loosely on the murder plot of Mr. Rosenbund, is a

fictional work that has certain resemblances with the murder case. The filmmaker is well

within his constitutional rights to make a movie that is based on a societal issue about which

people are curious. However it must be pointed here that the disclaimer states “any similarity

between this film and real life characters and incidents, is purely coincidental”. Therefore,

there should be no doubt about the fictional nature of the contents.

3 The Employees’ Federation and TVS & Sons Ltd, 1996 87 Comp Cas 37 Mad.

4 F.A. Picture International v. Central Board of Film Certification, AIR 2005 Bom 145.

5 Id.

6Director General, Directorate General of Doordarshan and Ors. vs. Anand Patwardhan and Anr., (2006) 8

SCC 433.

7 Nupur Talwar v Central Board of Film Certification, Writ Petition No. 945 of 2014, High Court of Bombay,

Ordinary Civil Jurisdiction.


3

In light of the above arguments, it is contended that the movie ‘Cain and Able’ is not barred

by any section of the Cinematograph Act, 1952, and thus the Censor Board is well within its

power to grant a censorship certificate to the movie.

2. THE EXHIBITION OF THE MOVIE IS WITHIN THE SCOPE OF ARTICLE 19(1) (a) OF THE

CONSTITUTION

It is submitted that Article 19(1) (a) of the Constitution protects the fundamental right of

filmmaker of ‘Cain and Able’ to have the film exhibited as a part of his freedom of speech

and expression.

In LIC v Manubhai D Shah8 the Apex Court held that a filmmaker had the fundamental right

under Article 19(1) (a) of the Constitution to exhibit a film as a part of his right to freedom of

speech and expression. This view was reiterated in Directorate of Film Festivals v Gaurav

Ashwin Jain9 where the Court opined that films are a medium to express and communicate

ideas, thoughts, information, messages, sentiments and emotions. In Mahesh Bhatt v Union of

India10, the High Court of Delhi emphasized that the filmmaker has the right to project life in

all its hues including the imperfections which was earlier stated in the K.A Abbas v Union of

India case11 where the court was of the view that portrayal of a social vice could not by itself

attract censorship.

Thus, it is the fundamental right of the filmmaker to have the film exhibited and any

restriction on the exhibition would essentially mean curbing the freedom of speech and

expression of the filmmaker and would be thus unconstitutional as per Article 19 (1) (a).

8LIC v Manubhai D Shah, (1992) 3 SCC 637.

9Directorate of Film Festivals v Gaurav Ashwin Jain, (2006) 8 SCC 433.

10Mahesh Bhatt v Union of India, (2009) 156 DLT 725.

11K.A Abbas v Union of India, (1970) 2 SCC 780.


4

3. THERE ARE NO GROUNDS ON WHICH INJUNCTION CAN BE GRANTED TO RESTRAIN THE

EXHIBITION OF THE MOVIE

It is humbly submitted that no injunction should be granted against the movie and exhibition

of the movie ‘Cain and Able’ should be allowed.

Section 37(2) of the Specific Relief Act, 196312 provides for a perpetual injunction can be

granted upon the merit of the suit. The court in Reliance Petrochemical v Proprietors of

Indian Express Newspapers Bombay (P.) Ltd. 13 formulated a three test step which was to be

followed before granting of an injunction. The test specified that injunction should be granted

on reasonable grounds for administration of justice to be kept unimpaired, there should be

reasonable ground to believe that the danger apprehended is real and imminent and it should

be based on the balance of convenience test.14 In R.K. Anand v Registrar, Delhi High Court15

the court was of the view that an order of pre-censorship on the grounds that the trial was

pending would affect the freedom of speech and expression as guaranteed under Article 19(1)

(a) of the Constitution. The Apex court in Gujarat Bottling Co. Ltd. Vs. Coca Cola Co.16

opined that while granting injunction the court has to examine the comparative loss caused to

the applicant and the respondent in case the order is not granted, i.e. the court will examine

the extent of loss and also whether such a loss can be made good through monetary

compensation and compare it with the loss that will be caused to the respondent. The party

12 Section 37(2) of Specific Relief Act, 1963 –“A perpetual injunction can only be granted by the decree made

at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from, the assertion

of a right, or from the commission of an act, which could be contrary to the rights of the plaintiff.”

13Reliance Petrochemical v Proprietors of Indian Express Newspapers Bombay (P.) Ltd., AIR 1989 SC 190.

14 Id.

15R.K. Anand v Registrar, Delhi High Court, (2009) 8 SCC 106.

16Gujarat Bottling Co. Ltd. Vs. Coca Cola Co., AIR 1995 SC 2372.


5

who would suffer a greater loss would be said to be having balance of convenience in his

favour and the court should decide accordingly.17

An injunction granted against the movie ‘Cain and Able’ would fail the balance of

convenience test and would not satisfy any of the three tests which is required to grant

injunction. The movie is fictitious and there is no real and imminent danger apprehended for

the movie and not releasing it would cause immense losses to the producers. The lower court

has already pronounced Mr. Kane guilty and the judgment for that case is available in the

public domain. Thus the movie will in no way cause any defamation and at best it uses a

decided set of facts in a purely fictional manner. Thus, on applying the balance of

convenience test, the loss caused to the filmmaker outweighs the apparent loss that the movie

might cause to the petitioner.

Thus, on applying the balance of convenience test, the loss caused to the filmmaker

outweighs the apparent loss that the movie might cause to the petitioner. It is contended,

therefore, that no injunction should be granted against the release of the movie and its

exhibition should be allowed.

17 Id.


6

ON BEHALF OF RESPONDENT II- WOLF 42X7

4. THE SECTIONS INTRODUCED BY THE PRESS COUNCIL AMENDMENT, 2014 ARE

CONSTITUTIONAL

It is humbly submitted that the sections introduced by the amendment act are constitutional.

The freedom of the press is regarded as a “species of which freedom of expression is a

genus”. 18 The freedom of speech and expression of the press does not fall under any separate

fundamental right but comes under Article 19(1) (a) of the Constitution.19 Hence, the freedom

of speech and expression of the press is subject to the restrictions envisaged under Article 19

(2) of the Constitution. The freedom of the press has to be balanced against the competing

public interests.20 In Harijai Singh v. Vijay Kumar21, the Supreme Court stated that the press

or journalists enjoy no special right of freedom of expression and the guarantee of this

freedom was the same as available to every citizen. The press does not enjoy any special

privilege or immunity from law.

4.1. THERE IS A PRESUMPTION AS TO CONSTITUTIONALITY OF LEGISLATION

It is submitted that there exists a presumption as to the constitutionality of a legislation.

It is a well-settled principle that there is a presumption of constitutionality of any legislation

passed by a competent legislature. The burden of proof lies on the person challenging the

18 Sakal Papers v Union of India, AIR 1962 SC 305

19 Article 19, Constitution of India – “Protection of certain rights regarding freedom of speech etc :(1) All

citizens shall have the right (a) to freedom of speech and expression…”

20 Indian Express Newspapers v. Union of India (1985) 1 SCC 641(¶ 82,91-93).

21 Harijai Singh v Vijay Kumar, 1996(6) SCC 466.

http://indiankanoon.org/doc/1378441/


7

constitutionality of an act. The same was reiterated by a constitutional bench of the Supreme

Court in Ram Krishna Dalmia v Shri Justice S R Tendolkar and Ors.22

Hence, the respondent contends that the presumption of the law being constitutional until the

other side manages to prove and satisfy the Court of the law being violative of fundamental

rights and therefore unconstitutional.

4.2. EVEN IF THE PRESUMPTION IS SET ASIDE, THE RESTRICTIONS ALLOWED UNDER THE

AMENDMENT ARE VALID AND REASONABLE

It is humbly submitted that the restrictions provided for under the amendment act are both

valid and reasonable.

In the case of State of Madras v V.G. Row23, the Supreme Court said that there is no definite

test to adjudge reasonableness of a restriction and each case must be judged on its own merits

and no general pattern can be laid down. In order to determine the constitutionality of a

restriction, it has to be determined from both substantive and procedural aspects.24

4.2.1. THE RESTRICTIONS ARE SUBSTANTIVELY REASONABLE.

It is submitted that the restrictions enlisted in the amendment act are substantively reasonable.

The relationship between Articles 14, 19 and 21 established in Maneka Gandhi’s case25 has

created a requirement of reasonableness of the law providing for deprivation of life or liberty.

While considering reasonableness of a restriction, the courts consider factors such as duration

and extent of restrictions, the extent and urgency of the evils sought to be remedied and

22 Ram Krishna Dalmia v Shri Justice S R Tendolkar and Ors, AIR 1958 SC 538.

23 State of Madras v V.G. Row, AIR 1952 SC 196

24 Panasam Labour Union v Madura Coats Ltd, AIR 1995 SC 2200.

25 Maneka Gandhi v Union of India, 1978 AIR 597.


8

manner in which the imposition has been authorised.26 In Sakal Papers v Union of India27,

the court held that the grounds under which restriction on Article 19 can be imposed are

exhaustive and should be strictly construed. Also, in the case of Virendra v State of Punjab28,

one of the sections which provided for a fixed time limit was held to be constitutional

whereas the ones which did not specify any time restriction was held to be unreasonable and

was struck down.

The grounds under which the restriction can be imposed have been defined under Section 3C

of the amendment.29 The grounds specified in Section 3C are a reproduction of the permitted

grounds for restriction under Article 19(2). A plain reading of the section conveys that the

grounds are restricted only to the grounds mentioned in Section 3C. Hence, the discretion of

the News Media Authority, which in itself is an expert body, is not unfettered. Further, it is

contended that the restrictions are substantively reasonable because any order or directions

passed can only be valid for a definite specific period not exceeding six months[under

Section 3B(i)] or one year[under Section 3B(ii)].30

4.2.2. THE RESTRICTIONS ARE PROCEDURALLY REASONABLE

The method of imposing a restriction and the procedure provided for putting into operation

constitute its procedural aspect.31 The aspect of procedural reasonableness for natural justice

26 Chintaman Rao v State of Madhya Pradesh, AIR 1951 SC 118; State of Madras v V. Row AIR 1952 SC 195.

27 Sakal Papers v Union of India (1962) 3 SCR 842

28 Virendra v State of Punjab & Anr., AIR 1957 SC 896

29 Section 3C, The Press Council Amendment Act: “Scope of Authority: The power under section 3B can only

be exercised on the following grounds: (i) interests of the sovereignty and integrity of India, (ii) the security of

the State, (iii) friendly relations with foreign States, (iv) public order, (v) decency or morality or in relation to

contempt of court, (vi) defamation or (vii) incitement to an offence.”

30 Virendra v State of Punjab & Anr., AIR 1957 SC 896.

31 Khare v State of Delhi, AIR 1950 SC 211; Virendra v State of Punjab, AIR 1957 SC 896.


9

is derived from Article 19.32 When a law provides for procedure under which exercise of

right might be restricted, the court must consider it to determine if exercise of right is

reasonably restricted.33 It has been settled now that in cases where civil rights are affected by

administrative action or quasi-judicial order, rules of natural justice must be followed.34 It is

important to see in whom discretion is vested. When it is vested in top-ranking authorities

and not in minor officials, abuse of power cannot readily be inferred.35 It is pertinent to note

that in bodies like Press Council of India36, Bar Council of India37, Medical Council of

India38 etc. the bodies consist largely of professionals connected to that field so as to ensure

professional oversight over the regulatory functions of such bodies.

The proviso to Section 3B of the impugned amendment provides for a fair hearing to the

affected parties before any order is being passed.39 The composition of the National Media

Authority has representation from the judiciary in the form of a retired judge of Supreme

Court or former Chief Justice of High Court, members from Press Council representing both

print and television media and one government nominee.40 Hence, the affected party can be

assured of fair hearing and there is a negligible chance of abuse of power since it is presided

by a senior judge. Further, the majority of the Authority being journalists, any order that is

32 Id.

33 Kishan Chand Arora v Commissioner of Police, AIR 1961 SC 705.

34 Mohinder v Chief Election Commissioner AIR 1978 SC 851.

35 Pannalal Binjraj v Union of India, AIR 1957 SC 397.

36 Section 5(3) of the Press Council Act, 1978.

37 Section 4 of Advocates Act, 1961

38 Section 3 of The Indian Medical Council Act, 1956

39 Proviso in Section 3B, The Press Council Amendment Act, 2014 –“Provided that a fair hearing will be

granted to affected persons before passing any Order under this section”

40 Section 3A of The Press Council Amendment Act, 2014


10

passed is after proper aid and advice of the professionals who are well-versed with the affairs

in the field as well as the conflicting interests at play.

In light of the above contentions, it is submitted that the the Press Council Amendment Act,

2014 is constitutional.

5. THE ORDER DATED 10TH AUGUST 2014 IS VALID AND CONSTITUTIONAL

The respondents submit that the order dated 10th August, 2014 passed by the National Media

Authority after giving a due hearing which restrained the media outlets from commenting

about the validity or correctness of the judgment passed in the matter of Mr Kane is valid and

should not be set aside.

5.1. THE ORDER PREVENTS POSSIBLE CONTEMPT OF COURT AND THEREBY ENSURES A

FAIR TRIAL ENVISAGED UNDER ARTICLE 21 OF THE CONSTITUTION

It is humbly submitted that the Order dated 10th August 2014 furthers the cause of ensuring a

fair trial under Article 21.

Contempt of court is defined under the Contempt of Courts Act, 1971. Contempt of court

includes wilful disobedience to decree/order/writ or any publication which lowers or tends to

lower the authority of the court, prejudices or interferes with due course of any judicial

proceeding or interferes or tends to interfere with the administration of justice.41 Right to a

fair trial has been recognised as a part of Article 21.42 The right to fair trial includes the right

to be tried by an unbiased or prejudiced judge.43 The possibility of judges being

subconsciously affected by way of publications was recognised in the case of Reliance

41 Section 2, The Contempt of Courts Act, 1971.

42 Zahira Habibullah Sheikh & Anr vs State Of Gujarat, (2004) 4 SCC 158.

43 Bhajan Lal v Jindal Strips Ltd, [1994] Supp 2 SCR 445.


11

Petrochemicals v Proprietor of Indian Express44. The 200th Report of the Law Commission

of India45 has delved into the issue of publications affecting the judiciary's ability to adjudge

a case. The report cites a judgment of US Supreme Court which speaks about the potential

impact of publications on the minds of the judge.46 In UK, the House of Lords rejected Lord

Denning's contention that judges are not affected by media publicity.47 In Shamim Rehmaney

vs. Zinat Dehalvi and Ors.48 an article was published in a magazine pending an appeal against

conviction for murder expressing opinion on the merits of the case. The High Court held that

it amounts to contempt of court because it is an interference into the course of justice. Trial

by press and electronic media has been described as the very antithesis of the rule of law.49 In

the case of Sahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange

Board of India 50 [Hereinafter “Sahara v SEBI”], the Supreme Court held that where there is a

‘real and substantial risk’ of prejudice to the fairness of the trial or proper administration of

justice, such orders of postponement which are applicable for a limited duration are necessary

to protect the presumption of innocence which is a recognised right under Article 21.51

44 Reliance Petrochemicals v Proprietor of Indian Express, 1988(4) SCC 592.

45 Law Commission, Trial By Media (Law Com No 200, 2006).

46 Justice Frankfurter in John D. Pennekamp v.State of Florida, (1946) 328 US 331 as cited in the 200th Law

Commission Report: “No Judge it to be one is likely to be influenced consciously...However, Judges are also

human and we now better than did our forbears how powerful is the pull of the unconscious and how

reacherous the rational process ...and since Judges, however stalwart, are human, the elicate task of

administering justice ought not to be made unduly difficult by irresponsible print....in a particular controversy

pending before a court and awaiting judgment, human eings, however strong, should not be torn from their

moorings of impartiality by the undertone of extraneous influence. In securing freedom of speech, the

Constitution hardly meant to reate the right to influence Judges and Jurors.”

47 Attorney General v BBC, 1981 AC 303(HL)

48 Shamim Rehmaney vs. Zinat Dehalvi and Ors, 1971 CriLJ 1586

49 State Of Maharashtra vs Rajendra Jawnmal Gandhi, CRIMINAL APPEAL NOS. 840 & 839 OF 1997

(Arising out of SLP (Crl.) Nos. 2510 /97 Crl. M.P. No.839/97) and SLP (Crl.) No.1773/96)

50 Sahara India Real Estate Corporation Ltd. and Ors. v. Securities and Exchange Board of India, 2013 (7)

Bom CR 929

51 Id., ¶ 42


12

Further the court opined that even if there is fair and accurate reporting of a trial, it might

give rise to substantial risk of prejudice not in the pending case but in a later or connected

trial. 52 In such rare cases, there is no other practical means but only postponement orders to

avoid this risk of prejudice in the connected trial.53

In this present case, the television media had continued to demand an investigation into Mr.

Kane’s role even when the investigation was underway into Mr. Wells’ confessional

statement.54 Even the reports were self-contradictory and kept changing.55 The trial court had

already debunked some of the stories floating around the news channels linking Mr.

Rosenbud with Mr. Kane’s daughter.56 The credit taken by the media after Mr. Kane was

rearrested was a reflection of the media’s intensive role in the whole trial. Post the judgment,

legal experts opined that the conviction of Mr. Kane was largely due to a ‘trial by media’.57

Hence, any comment on the judgment might interfere in the pending appeal of Mr. Kane and

hence would result in contempt of court.

Also in the present circumstances, the case of Mr. Wells is pending and there is clear

possibility that there might be prejudicial publications while reporting on the case by media.

This can be adduced from the intensive role of media in this present case. Hence, the order is

necessary to prevent any interference with the administration of justice and subsequent

contempt of court.

52 Id., ¶ 19.

53 Id.

54 Factsheet, ¶ 3.

55 Factsheet, ¶ 10.

56 Id.

57 Factsheet, ¶ 10


13

The two trials of Mr. Kane and Mr. Wells are related since Mr. Wells acted as a ploy to shield

Mr. Kane. The impact of publications or criticism on the judgment of Mr. Kane Is bound to

have ramifications on the case of Mr Wells. Given these circumstances and following from

the Sahara v SEBI58 judgment, there is no other means but postponement orders to prevent

the real and substantial risk of prejudice in the trial of Mr Wells.

5.2. PRIOR RESTRAINT IS NOT A VIOLATION OF FREEDOM OF SPEECH AND EXPRESSION

It is submitted that prior restraint has been held not to be unconstitutional per se in India.59

Anticipatory action to control the exercise of a fundamental right has been upheld in India,

provided that certain requirements are met.60 First, it must be procedurally fair i.e. not

arbitrary, so as to be consistent with Article 14 of the Indian Constitution. Secondly, it must

offer a standard for the guidance of the authority in the matter of exercising his subjective

power.61 Thirdly, it must not be vague or in excess of the requirement.62 Finally, it must have

a relation to the permissible ground of restriction, i.e. contempt of court.63 In the case of

Naresh Shridhar Mirajkar v State of Maharashtra64, a nine judge bench of the Supreme

Court opined that an order of a court prohibiting publication for temporary period during the

course of the trial is not violative of the right to freedom of speech and expression. In the

recent case of Sahara v SEBI65, the court gave its opinion that such postponement orders


Bom Cr 929.

59 Virendra v. State of Punjab, 1958 SCR 308, 321.

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

61 Kameswar Prasad v. State of Bihar, 1962 SCR Supl. (3) 369, 382.

62 Id.

63 The Superintendant, Central Prison, Fatehgarh v. Ram Manohar Lohia, 1960 SCR (2) 821, 840; Ramji Lal

Modi v. State of U.P., 1957 SCR 860; Virendra v. State of Punjab & Anr., 1958 SCR 308.

64 Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.


Bom Cr 929.


14

serve as ‘neutralizing tools’ in the face of two interests of equal weightage i.e. of freedom of

speech and expression and freedom of trial. The court ruled that the restrictions imposed fall

under Article 19(2) and satisfy the test of reasonableness.66 Even in the US where freedom of

the press is an absolute right67, there is no absolute rule against prior restraint and its

importance has been recognized in exceptional circumstances.68

In the present case, procedural reasonableness has been proved.69 The grounds of imposing

restriction have been strictly defined under Section 3C of the amendment70 and the restriction

has been clarified.71 A clear ground of possible contempt of court can be construed from the

order passed. Hence, it meets the requirements which have been laid down.

In light of the above contentions, the respondents submit that the order dated 10th August,

2014 is valid and constitutional and hence should not be set aside.

66 Id., ¶ 42

67 First Amendment to the United States Constitution- “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

68 Near v. Minnesota, 283 US 697

69 Argument 1.1.2

70 Section 3C, The Press Council Amendment Act, 2014- “3C.Scope of Authority: The powers under section 3B

can only be exercised on the following grounds:(i) interests of the sovereignty and integrity of India, (ii)

the security of the State, (iii) friendly relations with foreign States, (iv) public order, (v) decency or

morality or in relation to contempt of court, (vi) defamation or (vii) incitement to an offence.”

71 Factsheet, ¶ 9

-Prayer-

1

PRAYER

In light of the issues raised, arguments advanced and authorities cited, the Respondents

respectfully requests this Hon’ble High Court to adjudge, hold and declare that

1. THE MOVIE ‘CAIN AND ABLE’ IS NOT HIT BY ANY PROVISION OF THE CINEMATOGRAPH

ACT, 1952.

2. THE MOVIE SHOULD BE ALLOWED TO BE EXHIBITED VIDE THE PROVISIONS OF ARTICLE

19(1) (a) OF THE CONSTITUTION OF INDIA THAT PROTECT THE FUNDAMENTAL RIGHT

TO FREEDOM OF SPEECH AND EXPRESSION OF THE PRODUCERS/FILMMAKERS OF THE

MOVIE ‘CAIN AND ABLE’.

3. THE APPLICATION FOR GRANT OF INJUNCTION AGAINST THE MOVIE SHOULD BE REJECTED.

4. THE SECTIONS INTRODUCED BY PRESS COUNCIL AMENDMENT ACT, 2014 ARE

CONSTITUTIONAL.

5. THE ORDER DATED 10TH AUGUST, 2014 IS VALID AND CONSTITUTIONAL

AND PASS ANY ORDER THAT THE HON’BLE HIGH COURT MAY DEEM FIT IN THE INTEREST OF

JUSTICE, EQUITY AND GOOD CONSCIENCE.

IT IS MOST RESPECTFULLY SUBMITTED;

COUNSELS ON BEHALF OF THE RESPONDENTS

Documents

Team-I Before Constitutional Writ Jurisdiction U/Art.226 WP No