Memorandum For The Petitioner

A-109
Gujrat National Law University

First Intra Moot Court Competition, 2020
In The Honourable High Court of Orlais
Civil Appeal No.xxxx of 2020 arising out of Writ Petition of 2020
Under Article 226 of the Constitution of Thedas
In the Matter of
Mr. Doorknob Goosewami ...………………………………………… Petitioner

v.
Ms. Cassandra Pentaghast ………………………………………. Respondent
Written Submission on Behalf of the Petitioner
I
-MEMORANDUM FOR THE PETITIONER -
TABLE OF CONTENTS
1. INDEX OF AUTHORITIES…………………………………………………… III

2. LIST OF ABBREVIATIONS…………………………………………………… V
3. STATEMENT OF JURISDICTION…………………………………………….VII
4. STATEMENT OF FACTS………………………………………………………VIII
5. ISSUES RAISED…………………………………………………………………X
6. SUMMARY OFARGUMENTS…………………………………….....................XI
7. ARGUMENTS ADVANCED…………………………………………………….1
I. That the present writ petition is maintainable under article 226 as a Public Interest
Litigation………………………………………………………………………1
II. That the statements made by the petitioner during the coverage of the case of
Alistair's death are not defamatory in
nature…………………………………………….3
 That the statements made by the petitioner fall under the exception of fair
comment…………………………………………………………………...3
- That the statements made by the petitioner are based on truthful
facts……………………………………………………………… ..3
- That the statements made by the petitioner are in good faith and in
pursuance of public
good……………………………………………………. 4
III. That the Injunction granted against Anarchy TV is unconstitutional………. 6
 That the injunction does not satisfy the prerequisites of prima facie case, balance
of convenience and irrepealable injury………………………………………6
- That the injunction does not satisfy the perquisite of prima facie case due
to the protection of the statements under the fair comment
exception………………………………………………………… ..6
- That the balance of convenience lies in the favour of the
petitioner……………………………………………………... …..8
- That There exists an irreparable loss inflicted on the petitioner due to the
grant of the injunction……………………………………………10
 That the injunction is arbitrary and excessive in nature……………… …11
II
8. PRAYER………………………………………………………………… . …… 14
INDEX OF AUTHORITIES
CASES REFERRED
1. Anthoni Udayar and Ors. vs. Velusami Thevar and Ors. (1947) MADHC 327.
2. Asha Ranjan and Ors. vs. State of Bihar and Ors. (2017) SC 559.
3. Charanjit Singh vs. Arun Purie and Ors. (1982) DELHC 163.
4. D. Rama Subba Reddy vs. P.V.S. Rama Das and Ors. (1967) APHC 147.
5. Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276 (277).
6. Dalpat Kumar V/s Pralhad Singh, AIR 1993 SC 276.
7. Emperor vs. Abdool Wadood Ahmed (1907) BOMHC 209.
8. Felix Dias Bandaranayake vs. The State Film Corporation and Another (1981) SLCA 55.
9. Fraser v. Evans and Ors. (1969)1 All ER 8
10. Harper Collins Publishers India Pvt. Ltd. vs. Sanchita Gupta and Ors. (2020) DELHC)
1769.
11. Indian Banks' Association, Bombay and Ors. vs. Devkala Consultancy Service and Ors.
(2004) SCC 355.
12. Jai Prakash and Ors. vs. State of Uttarakhand and Ors. (2020 ) UCHC 204.
13. Kanhaiyalal Khadiwala vs. Vishwanath (1966) SC 1073.
14. Khushwant Singh and Ors. vs. Maneka Gandhi (2001) DELHC 768.
15. Mahadeo Mahto and Ors. vs. Hiralal Verma and Ors. (1997) PATNAHC 227.
16. Mazdoor Kisan Shakti Sangathan vs. The Union of India (UOI) and Ors. (2018) SC 1307.
17. NATIONAL ADVERTISES v. M.S.R.T.C 1963(2) Mys.L.J. 356.
18. P. Bandopadhya and Ors. vs. Union of India (UOI) and Ors. (2019) SCC 378.
19. Peoples' Union for Democratic Rights (PUDR) vs. Union of India and Ors. (2015)
ALLHC 242.
20. Pushp Sharma and Ors. vs. D.B. Corp. Ltd. and Ors. (2018) DELHC 164.
21. Reliance Petrochemicals v Proprietors of Indian Express Newspapers Bombay (P.) Ltd,
AIR 1989 SC 190.
22. Rhodesian Printing & Publishing Co. Ltd. v. Howman, N.O. SALR 1967 (4)1,14.
III
23. Shashi Tharoor vs. Arnab Goswami and Ors. (2017) DELHC 4544.
24. Subramanian Swamy vs. Union of India (UOI) and Ors. (2016) 7 SC 621.
25. Swapnil Tripathi and Ors. vs. Supreme Court of India and Ors. (2018) SCC 1066.
26. Woodward and others v.Rutchins anp others, 1977 (1) Wee Law Rep 760.
STATUTES AND OTHER AUTHORITIES
1. Civil Procedure Code, 1908

2. Indian Penal Code, 1860
BOOKS
1. RICHARD PARKES et al., Gatley On Libel and Slander 64 (8ed. 2017).

2. 28 LORD HALSBURY et al., Halsburry's Laws of England, 87 (4ed. 1941).
LEGAL DICTIONARIES
2. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009).
DATABASES REFERRED
1. http://www.scconline.com (last visited on 7th January, 2021).

2. http://www.manupatra.com (last visited on 7th January, 2021).
3. http://www.westlaw.org (last visited on 5th January, 2021).
4. http://www.indiankanoon.com (last visited on 8th January, 2021).
5. http://www.lexisnexis.com (last visited on 3rd January, 2021).
6. http://www.judis.nic.in (last visited on 3rd January, 2021).
IV
LIST OF ABBREVIATIONS
V
& And
AP Andhra Pradesh
All. Allahabad
Anr. Another
CA Court of Appeal
CEO Chief Executive Officer
Co. Company
Edn. / Ed. Edition
Hon'ble Honourable
L.J. Law Journal
Ltd. Limited
Mr. Mister
No. Number
HC High Court
Ors. Others
PIL Public Interest Litigation
Pvt. Private
SC Supreme Court
VI SCC Supreme Court Cases

UP Uttar Pradesh
VII
STATEMENT OF JURISDICTION
The counsels representing the petitioner have endorsed their pleadings before this
Honourable Court under Article 226 of the Constitution of Thedas in which the Honourable
Court has the jurisdiction, to file a Writ Petition against the order of the High Court of Orlais.
VIII
STATEMENT OF FACTS
For the sake of brevity and convenience of the Honourable Court the facts of the present case
are summarized as follows:
1. The present case concerns a claim by Mr. Doorknob Goosesawmi (Petitioner) of

invalidity of the temporary injunction order granted by the Ferelden Civil Court against
Anarchy TV the news channel of whom the petitioner is the CEO. It is claimed that the
injunction order prayed by the Respondent is in violation of the constitution.
Additionally, the petitioner also refutes the claim of defamation made by Respondent,
Ms.Cassandra Pentaghast.
2. The injunction is question restricts Anarchy TV from reporting on the case of the death of
Alistair, a popular film star and the respondent's former partner. In addition to praying for
the grant on the said injunction, the Respondent had also filed a suit for defamation before
the Civil Court of Ferelden, against Anarchy TV and its CEO and sought damages from
them alleging that the investigative journalism conducted by the channel is responsible
for tarnishing her reputation by making false allegations against her.
3. The statements made by the petitioner and referred to by the respondent were made
during the course of the coverage of the case of Alistair's death on Anarchy Tv. The
petitioner routinely claiming the involvement of the respondent in the death of her former
partner, made statements and expressed theories of participation regularly on a special
series focusing on Alistair's death. During the course of this special , the petitioner in his
particular style of investigative journalism made often made statements relying on
information derived from the facts of the case or public knowledge about the respondent
such as her history, work and more. The petitioner was heavily involved in the reporting
of case and was vocal in the claim he made of the Respondents guilt and thus, openly
demanded for her arrest. The theories and statements brough forward by the petitioner
highlighting issues such as inadequacy of the investigation conducted by the police were
largely assented by the public. The police authorities were faced with widespread
criticism on the conduct of the investigation of the facts. Encouraged by the petitioner's
reporting, similar demands and claims were made by campaigners and eventually protests
and demonstrations broke out in various parts of the country.
IX
4. On 6th August 2020, the respondent was arrested. Having spent a month in jail, the
respondent was granted bail by the High Court of Orlais. After her release, the respondent
maintaining that she had no involvement in Alistair's death along with filing a suit of
defamation, prayed for an interim injunction against Anarchy TV which was granted by
the Civil Court of Ferelden.
5. It is the case of the Respondent that the statements made by the petitioner are indeed
defamatory in nature and thus, an interlocutory order in the form of an injunction is valid.
The Petitioner has disputed these claims, and has approached this Court to present it's
case of protection from the claim of defamation and the unconstitutional nature of the
injunction, inter alia.
X
ISSUES RAISED
The following questions are presented before this Honourable Court for adjudication in the
instant matter:
I. That the writ petition is maintainable under Article 226.

Alistair's death are not defamatory in nature.
III.That the injunction granted against Anarchy TV is unconstitutional.
XI
SUMMARY OF ARGUMENTS
IV. That the writ petition is maintainable under Article 226.
It is humbly submitted before this Honourable Court that in the present case, the writ petition
is maintainable under Article 226 as a Public Interest Litigation as it claims a breach to
fundamental right thus satisfying the element of public good. The injunction granted by the
Civil Court of Ferelden infringes the fundamental right to speech of the petitioner and the
right to know of the citizens hence, becoming a subject of public relevance. Additionally, the
present writ petition is not affected by principles of res judicata due to the presence of the
interlocutory order granted by the High Court of Orlais.
V. That the statements made by the petitioner during the coverage of the case of
The petitioner contends that the statements made on Anarchy TV during the reporting on the
case of Alistair's death are not defamatory in nature as they are protected under the fair
comment exception identified in the Section 499, IPC. It is a settled position of law that
statements encompassed in this exception must be a genuine expression of opinion, that is,
fair and bona fide, and relevant to truthful facts. The same may even be extravagant,
exaggerated or prejudiced. The remarks in question were based on facts derived by the
plaintiff from publications and interviews made by the respondent in pursuance of public
good. Thus, It is humbly submitted that the statements made by the petitioner are based on
truthful facts and derived from legitimate sources. Additionally, it is contended that the
statements made by the petitioner in regards to the respondent, prior to and during, the special
on the case of the death of Alistair are made in good faith and in pursuance of public good.
The claim of good faith is made for two reasons. The first being in consideration of the
position of law that good faith can exist in the absence of complete genuinity of the statement
and only necessitates due care and attention. The petitioner exercised the same as he made
sure to base his claims on only bona fide sources and relied on information he genuinely
thought to be true. Secondly, it is contended that as established in various judicial decisions,
the element of public interest in the case due to the discussion it creates around relevant
issues concerning the people, the place of any special interest is absent. Applying the same, it
is evident that the petitioner made the statements in question in good faith and pursuance of
public good. Consequentially, they fall under the fair comment exception and are not
defamatory in nature.
XII
VI. That the injunction granted against Anarchy TV is unconstitutional.
It is submitted that this Hon'ble Court should recognise the unconstitutional nature of the
injunction granted against Anarchy Tv, restraining them from reporting on the case of the
death of Alistair. The same is contended due to a reasoning that is twofold in nature. Firstly,
it is established that the injunction does not satisfy the prerequisites of prima facie case,
balance of convenience and irrepealable injury. While considering the prima facie case, it is
submitted that the injunction is question does not possess the same due to the protection of
the defendants statements under the fair comment exception. This is so as defences like
justification and fair comment afford a complete answer to an allegation of defamation.
Furthermore, even assuming, without admitting, there exists a strong prima facie case , the
same does not guarantee grounds for the institution of an interim injunction. The accused in
the case at hand, had indicated their disapproval of the claim of defamation made by the
respondent and further clarified their intention to justify protection under the exceptions of
section 499 of the IPC, the injunction granted subsequently is violative of the settled position
of law. Furthermore, it is submitted that in the case at hand, the balance of convenience lies in
favour of the petitioner. The events of the case create a point of contention between the risk
which will be caused by the publication of the article and the damage to the fundamental right
of freedom of knowledge of the people concerned and the obligation of Press to keep people
informed. The Respondent’s right to fair trial will merely be curtailed however, the
Petitioner’s freedom of expression and the fundamental right of freedom of knowledge of the
people concerned will be completely extinguished. Thus the harm inflicted on the latter party
is of more magnitude that the harm inflicted on the respondent. Additionally, as repeatedly
established by multiple judicial decisions, the fundamental right of freedom of knowledge of
the people concerned and the obligation of Press to keep people informed should be
approached with the principle of primacy. Consequentially, the balance of convenience
between the parties of the injunction is question is unfavourable towards the grant of the
injunction against the petitioner. The petitioner also suffers an irreparable loss due to the
infringement and imbalance of rights as mentioned. Lastly, It is claimed that the injunction
granted is excessive and unreasonable as it’s implications are beyond what is required in the
interest of the public. It does not act as a mere restriction to the freedom of speech and the
various other rights mentioned, but actively drives them to extinction. Hence, in accordance
XIII
with the settled position of law and multiple judicial decisions, an interim order such is this is
unconstitutional.
XIV
ARGUMENTS ADVANCED
I. That the present writ petition is maintainable under article 226 as a Public
Interest Litigation.
It is humbly submitted before this Honourable Court that the writ petition filed by the
Petitioner and admitted by the High Court of Orlais is maintainable as a Public Interest
Litigation under Article 2661. Black's Law Dictionary2 defines Public Interest as: "Something
in which the public, the community at large, has some pecuniary interest, or some interest by
which their legal rights or liabilities are affected. It does not mean anything so narrow as
mere curiosity, or as the interests of the particular localities, which may be affected by the
matters in question. Interest shared by citizens generally in affairs of local, state or national
Government. It encompasses any legal action, including all legal proceedings initiated in a
Court of with the purpose of seeking remedy, any such writ petition is maintainable as public
interest litigation.' Furthermore, in the case of Odyssey Communications Pvt. Ltd. v.
Respondent: Lokvidayan Sanghatana and Ors.3, the SC reiterates its position regarding the
right to know in a society built on participatory democracy. It was thus said 'Right to Know is
a basic right which citizens of a free country aspire in the broader horizon of the right to live
in this age in our land under Article 21 of our Constitution.' Moreover, In Sakal Papers (P)
Ltd. and Others v. The Union of India4, it has been held by this Court that the freedom of
speech and expression guaranteed by Art. 19(1)(a) includes the freedom of press.
Additionally, in the case of Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and
Ors.5,it was opined that the petitioners who are Journalists, have a fundamental right to carry
on their occupation under Art. 19(1)(g). It was inter alia consider that the arguments of in the
case, journalists or generally, any media personnel contesting that they had a fundamental
right to carry on their occupation Under Article 19(1), right to work, are reasonable and valid.
It is contended by the Petitioner that the injunction , granted as prayed by the Respondent, is
violative of the mentioned rights conferred by the constitution. At the outset, the Petitioner
claims the interim injunction granted against Anarchy TV, restraining them for reporting the
case of Alistair's death, is in violation of the rights guaranteed by the constitution. It is
1
Indian Banks' Association, Bombay & Ors, v. Devkala Consultancy Service and Ors. AIR 2004 SC 2615.
2
Public Interest Litigation, Black's Law Dictionary (10th ed. 2014).
3
Odyssey Communications Pvt. Ltd. vs. Lokvidayan Sanghatana and Ors, (1988) SCC 573.
4
Sakal Papers (P) Ltd. and Ors. vs. The Union of India (UOI) (1961) SCC 90.
5
Naresh Shridhar Mirajkar and Ors. vs. State of Maharashtra and Ors. (1966) 44.
1
evident that a curb of such freedom expands beyond the realms of this case and is of public
relevance and severs public purpose.
It is further contended that even though the case pertains to writ filled against an injunction
prayed by an individual, it serves public interest and can consequentially be maintained. In
the recent case of PUDR v. Union of India , Allahabad High Court 6 accepted a writ petition
as PIL which was filed concerning one person as it was served public interest. The same is
reiterated by the SC in the case of Indian Banks' Association, Bombay and ors v. M/s
Devkala Consultancy Service and Ors. 7, where it was held that ‘In an appropriate case,
where the Petitioner might have moved a court in her private interest and for redressal of the
personal grievance, the Court in furtherance of Public Interest may treat it a necessity to
enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a
private interest case can also be treated as public interest case.”
This reaffirms the position of law that a writ petition filed in interest of one person which
serves public purpose is in fact maintainable. Having established the essential elements of a
PIL, it is contended by the petitioner that the writ admitted by this Court is both in relevance
to the interest of the citizens and is in pursuance of seeking remedy for the infringement of
the mention rights conferred by the constitution.
Furthermore, the writ petition filled by the Petitioner remains unaffected by the principles of
res judicata and is thus, maintainable in Court. In the case of P. Bandopadhya vs. Union of
India8, the Hon'ble Supreme Court of India has reiterated that the principle of res judicata as
enshrined in section 11 of the Code of Civil Procedure, 1908 is relevant and pertinent when
considering writ petitions also. It was observed that, "Albeit the decision of the Constitution
Bench was in the context of a Writ Petition filed under Article 32, it would apply with greater
force to bar a Writ Petition filed under Article 226, like the one filed by the present
Appellants, by the operation of the principle of res judicata." In pursuance of the same, the
case of Mahadeo Mahto and others Vs. Hiralal Verm9 opined that it is a settled position of
law that principle of res judicata is applicable to subsequent proceedings only in the absence
of an interlocutory order passed in a former suit. The Civil Court of Ferelden, as prayed by
the Respondent, has granted an interim injunction against Anarchy TV, restraining them for
reporting the case of Alistair's death. This injunction acts as a temporary and immediate relief
6
Peoples' Union for Democratic Rights (PUDR) vs. Union of India and Ors. (2015) ALLHC 242.
7
Indian Banks' Association, Bombay and Ors. vs. Devkala Consultancy Service and Ors. (2004) SCC 355.
8
P. Bandopadhya and Ors. vs. Union of India (UOI) and Ors. (2019) SCC 378.
9
Mahadeo Mahto and Ors. vs. Hiralal Verma and Ors. (1997) PATNAHC 227.
2
and thus, qualifying as an interlocutory order. In the case at hand, the provision of this
temporary injunction, as prayed by the respondent, has been granted by the civil Court
consequentially negating the possibility of invoking the principle of res judicata.
A. That the statements made by the petitioner fall under the exception of fair comment.
It is contended that the statements made by the petitioner on Anarchy TV during the reporting
on the case of Alistair's death are not defamatory in nature as they are protected under the fair
comment exception identified in the Section 499, IPC. The same sates that 'Whoever, by
words either spoken or intended to be read, or by signs or by visible representations, makes
or publishes any imputation concerning any person intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of such person, is said,
except in the cases hereinafter expected, to defame that person.' However, the exception of
fair comment to this section allows individuals to make comments on cases, albeit such a
privilege is a qualified one. Further explained in the case of Rhodesian Printing & Publishing
Co. Ltd. v. Howman 10, the comment must be recognisable as such and be based on facts
which are true and of public interest. Thus, the elements necessary to be demonstrated to
attain protection under the fair comment exception as identified are:
 Whether the statements rely on facts consisting of some degree of truth;
 Whether the statements are made in good faith;
 Whether the statements are made in public interest for common good;
It is humbly submitted that the statements made by the petitioner fall under this exception of
fair comment as they rely on established facts and are in pursuance of public good.
1. That the statements made by the petitioner are based on truthful facts.
The statements made by the petitioner in regards to the respondent, prior to and during, the
special on the case of the death of Alistair are based on true and relevant facts. In the case of
Kanhiyalal Khadiwala v Vishwanath11, the Supreme Court of India, in respect to the fair
comment exception, reiterates that 'It must be a genuine expression of opinion, that is, fair
and bona fide, and relevant to the facts commented on even though it may be extravagant,
exaggerated or prejudiced.' The foundations of the statements made by the petitioner during
the course of the reporting rely on information extracted from bona fide sources such as
10
Rhodesian Printing & Publishing Co. Ltd. v. Howman, N.O. SALR 1967 (4)1,14.
11
Kanhaiyalal Khadiwala vs. Vishwanath (1966) SC 1073.
3
interviews given by the respondent, facts of the case established by the investigating
authorities, the respondent's background and her past works. These statements are reflective
of the petitioner's distinctive style of reporting which involves arriving at logical deduction
from well-established facts. The same is evident in the present case. An example of this is
how the petitioner, relying on the drug autopsy evidencing the presence of THC-COOH in
the blood of the deceased, made a deductive speculation of the respondents involvement in
the act and applied the same logic in relating a repetitive theme in the respondent's work to
her beliefs of society12. Reiterating as established by the case law, the degree of exaggeration
in these statements remains irrelevant as long as they claims stem from truthful facts. It can
reasonably be concluded that the petitioner's statements rely on pre-determined facts thus
upholding a certain degree of truth. The petitioner contends that the statements in question
are reflective of a distinctive style of investigative journalism often employed by him which,
as established, is based on the method of deductive logical reasoning and hence, relies on
proven and undisputable facts.. Thus, It is submitted that the petitioner has only deduced his
statements from the information derived from bona fide sources and hence consist of the
element of truth.
2. That the statements made by the petitioner are in good faith and in pursuance of
public good.
The statements made by the petitioner in regards to the respondent, prior to and during, the
special on the case of the death of Alistair are made in good faith . Exception 9 of Section
499 of the IPC states that 'It is not defamation to make an imputation on the character of
another provided that the imputation be made in good faith for the protection of the interests
of the person making it, or of any other person, or for the public good.' A catena of judicial
decisions have established that the presence of good faith is guaranteed by the element of due
care and attention. . In addressing the component of good faith , it is acknowledged that it is a
settled position of law that good faith can exist in the absence of complete genuinity of the
statement and only necessitates due care and attention. In Anthoni Udayar v. Velusami
Thevar, Rajamannar J.13 as his Lordship then was, ruled thus: 'that the allegations contained
in the statements made by the petitioner are not established to be true is not tanta mount to
an absence of good faith. Imputations must be so reckless that good faith must be deemed to
12
Facts on Record, ¶ 5.
13
Anthoni Udayar and Ors. vs. Velusami Thevar and Ors. (1947) MADHC 327.
4
be totally absent 'I. In the case of Emperor v. Abdool Wadood Ahmed 14a Division Bench of
the Bombay High Court observed that 'good faith requires not indeed logical infallibility, but
due care and attention.' Hence, to bring the case within Exception 9 to B. 499. Penal Code, it
must be established that the imputations made by the accused related to the character of the
complainant were made with due care and attention and not recklessly, in the interest of
himself or any other person or for public good.
Even assuming, without admitting, that the petitioner did not establish the truth of the
allegations beyond reasonable doubt, it is clear that he has discharged the onus of proof by
proving that the preponderance of probability of the accusations preferred by him was made
with an honest and bona fide belief on the information available to him, as true. This is so as
he only relied on legitimate information which has either been corroborated for instance, in
the case of interviews or her history, by the respondent herself, or by concerned investigative
authorise on whom the responsibility of deciphering the facts of the case lie. Thus, it is
submitted that due care and attention was taken in ensuring the legitimacy of the sources of
the facts.
Furthermore, while considering the element of a bona fide intention, the absence of any kind
of special individual interest must be insured. The interest which the accused seeks to protect
either himself or any other person by making imputations on the character of the complainant
may pertain to political, religious, economic, social or personal matters. Proof of some
special interest is only required when the imputation is made for the protection of the person
who makes the statement or of any other person. However, as held in the case of D. Rama
Subba Reddy vs. P.V.S. Rama Das and Ors. 15, when the matter is one of the public interest,
the only ingredient necessary to be proved is public good.
Thus it is submitted that in acknowledgement of the element of public interest in the case due
to the discussion it creates around relevant issues concerning the people, the place of any
special interest is absent. The petitioner through his reporting was working to uphold the
various rights the constitution confreres upon the citizen's, especially the right to know.
As established in various judicial decisions, and corroborated by the case of Odyssey
Communications Pvt. Ltd. V Respondent: Lokvidayan Sanghatana and Ors, 16, the right to
know hold a place of great importance in a democratic society. In the case it was opined that
'We must remember that the people at large have a right to know in order to be able to take
14
Emperor vs. Abdool Wadood Ahmed (1907) BOMHC 209.
15
D. Rama Subba Reddy vs. P.V.S. Rama Das and Ors. (1967) APHC 147.
16
Odyssey Communications Pvt. Ltd., supra note 3.
5
part in a participatory development in the industrial life and democracy. Right to Know is a
basic right which citizens of a free country aspire in the broader horizon of the right to live
in this age in our land under Article 21 of our Constitution. That right has reached new
dimensions and urgency. That right puts greater responsibility upon those who take upon the
responsibility to inform.' Additionally in the case of Swapnil Tripathi and Ors. vs. Supreme
Court of India and Ors.17 the SC specified that 'Public trial in open Court is undoubtedly
essential for the healthy, objective and fair administration of justice. Trial held subject to the
public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and
serves as a powerful instrument for creating confidence of the public in the fairness,
objectivity, and impartiality of the administration of justice.' Thus acknowledging the
importance of discussion of cases relevant to the public, the petitioner by routinely reporting
on the case of Alistair's death has acted in pursuance of public good.
Keeping the same in mind, the component of public interest and public good is evident.
Therefore, the petitioner prays that having established the elements of truthful basis, good
faith and public good and interest in the statements in question, this Court may declare the
protection of the statements in question under the fair comment exception thus recognising
them as not defamatory in nature.
III. That the Injunction granted against Anarchy TV is unconstitutional.

A. That the injunction does not satisfy the prerequisites of prima facie case, balance of
convenience and irrepealable injury
1. That the injunction does not satisfy the perquisite of prima facie case due to the
protection of the statements under the fair comment exception.
It is submitted that the injunction is question does not possess a strong prima facie case. It is
well settled that for grant of temporary injunction three factors have to be satisfied which are
prima facie case, balance of convenience and irreparable loss. In Dalpat Kumar v. Pralhad
Singh18, Hon'ble Apex Court explained the PRIMA FACIE factors as follows:- 'There is a
serious disputed question to be tried in the court and that an act, on the facts before the
court, there is probability of his being entitled to the relief asked for by the
plaintiff/defendant.' Considering that the prima facie case in question creates no such
opportunity due to the established presence of the fair comment exception.
17
Swapnil Tripathi and Ors. vs. Supreme Court of India and Ors. (2018) SCC 1066.
18
Dalpat Kumar V/s Pralhad Singh, AIR 1993 SC 276.
6
In the case of Felix Dias Bandaranayake vs. The State Film Corporation and Another 19 it was
opined that once a plea of justification and fair comment is raised the interim injunction
cannot be issued. Section 54 of the Judicature Act states that the provision of an injunction
can only take place in the absence of defences like justification or fair comment. This is so as
the defence of fair comment facilitates protection to an allegation of defamation. When an
interim injunction is sought in order to restrict the distribution of defamatory matter pleas like
justification and fair comment will weaken the possibility of making a prima facie case of a
legal right being infringed or about to be infringed.
Additionally, in the case of Sardar Charnjit sigh v Arun Purie and others 20, observations were
made in respect of the proposition that the Court would not restrain supposedly defamatory
statements when the defendants are intending to plead justification or fair comments. In the
proceedings of the case, the Delhi High Court further stated that when the accused intend to
defend the content in question on grounds of justification, fair comment and qualified
privilege, that the suit and the application are premature and no cause of action has accrued to
the plaintiff. Furthermore, in Gatley on Libel and Slander 8th edition para 1574 page 641 21 it
has been observed, "when once a defendant says that he is going to justify, the words
complained of, there is an end of the case so far as an interim injunction is concerned".
Additionally, in Halsburry's Laws of England, 4th edition vol. 28 para 163 page 87 22 it is
observed, "it is well settled that no injunction will be granted if the defendant states his
intention of pleading a recognised defense, unless the plaintiff can satisfy the Court that the
defense will fail. This principle applies not only to the defense of justification but also the
defenses of privilege, fair comment, consent and probably any other defense". In Fraser-
w.Evans and others23, the newspaper admitted that the article to be published would be
defamatory to the plaintiff but said that, if they were sued, they would plead justification and
fair comment. The injunction was discharged on appeal and it was observed that the Court
would not restrain the publication of an article even though it was defamatory, when the
defendants said that they intended to plead justification or fair comment. Observations to the
same effect were also made in Woodward and others v.Rutchins anp others24.
19
Felix Dias Bandaranayake vs. The State Film Corporation and Another (1981) SLCA 55.
20
Charanjit Singh vs. Arun Purie and Ors. (1982) DELHC 163.
21
RICHARD PARKES et al., Gatley On Libel and Slander 64 (8ed. 2017).
22
28 LORD HALSBURY et al., Halsburry's Laws of England, 87 (4ed. 1941).
23
Fraser v. Evans and Ors. (1969)1 All ER 8
24
Woodward and others v.Rutchins anp others, 1977 (1) Wee Law Rep 760.
7
Thus, keeping the facts of the case in mind, it is evident that due to the protection available to
the petitioner under the fair comment exception, the prima facie case alleged by the
respondent is rather weak. Additionally, the petitioner also made clear his intention to contest
the allegation of defamation and thus any interim interlocutory order passed subsequently to
the same is violative to the code of procedure. The accused in the case at hand, had indicated
their disapproval of the claim of defamation made by the respondent and further clarified
their intention to justify protection under the exceptions of section 499 of the IPC, the
injunction granted subsequently is violative of the settled position of law.
Even assuming, without admitting, there exists a strong prima facie case , the same does not
guarantee grounds for the institution of an interim injunction. The Civil Procedure Code,
1908 (Central Act No. 5 of 1908) - Order 39 Rules 1 & 2 states that the existence of
a prima facie case or even a very strong prima facie case does not permit leap-frogging by the
plaintiff directly to an injunction without crossing the other hurdles in between....Even
granting that the plaintiff has an invincible prima facie case, he will not be entitled ex
debitiae justiciae, to the grant of an injunction, unmindful of other consequences. If the
consequences of granting an injunction are detrimental in nature then an injunction will not
be granted even though the plaintiff might have an unbeatable prima facie case. There is
overwhelming authority- for the proposition that mere existence of a prima facie case or a
very strong prima facie case does not ipso facto justify the grant of an injunction25. Even if
the claim of defamation succeeds in favour of the defendant, the same would not provide
complete basis for the institution of an interlocutory order.
2. That the balance of convenience lies in the favour of the petitioner.
It is submitted that this Hon'ble Court should recognise the violation of fundamental rights
enabled by the injunction granted against Anarchy Tv, restraining them from reporting on
the case of the death of Alistair. Due to this, in the case at hand, the balance of convenience is
in favour of the petitioner. In regards to the “balance of convenience” in the case of Dorab
Cawasji Warden v. Coomi Sorab Warden and Ors., it was observed that “the court shall also
consider whether the comparative mischief or inconvenience which is likely to ensue from
withholding the injunction will be greater than that which is likely to arise from granting it”.
Moreover, In the case of Anwar Elahi v. Vinod Misra And Anr. , it was held that ‘Balance of
convenience means that comparative mischief or inconvenience which is likely to issue from
withholding the injunction will be greater than that which is likely to arise from granting it.
In applying this principle, the Court has to weigh the amount of substantial mischief that is
25
NATIONAL ADVERTISES v. M.S.R.T.C 1963(2) Mys.L.J. 356.
8
likely to be done to the applicant if the injunction is refused and compare it with that which is
likely to be caused to the other side if the injunction is granted.’ Hence, it is evident that the
course of action for determination of the balance of convenience in this case creates a duality
between the infringement of the freedom of speech and right to know of the petitioner and the
people respectively and the right to reputation and fair trial of the respondent.
In Subramanian Swamy v. UOI26 ,the SC considered the issue of validity of provisions
creating defamation as an offence. In the course of said judgment, need for harmony in
competing claims of different interests was considered. This Court observed that the
fundamental rights are all parts of an integrated scheme and their waters must mix to
constitute grand flow of impartial justice. This Court also observed that legislation should not
invade the rights and should not smack of arbitrariness. After referring to the case of
Khushwant Singh and Ors. vs. Maneka Gandhi27, it was observed that it is the duty of this
Court to strike a balance in the right of speech and right to protect reputation. The restriction
of law should be rational and connected to the purpose for which it is necessary. It should not
be arbitrary or excessive. The Court in Reliance Petrochemicals v Proprietors of Indian
Express Newspapers Bombay (P.) Ltd28 formulated a three test step which was to be followed
before granting of an injunction. It was opined that ‘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. In furtherance, it was opined that
It would be proper and legal, on an appraisal of the balance of convenience between the risk
which will be caused by the publication of the article and the damage to the fundamental
right of freedom of knowledge of the people concerned and the obligation of Press to keep
people informed, that the injunction should not continue any further’. Additionally, in the
case of Odyssey Communications Pvt. Ltd. V Respondent: Lokvidayan Sanghatana and
Ors.29 the SC overturing the decision of the High Court of infringing fundamental rights due
to the grant of an interim injunction, again reiterated that 'Freedom of expression is a
preferred right which is always very zealously guarded by this Court'. The injunction passed
by High Court was recognised as an error and set aside. Apart from this, the case also
26
Subramanian Swamy vs. Union of India (UOI) and Ors. (2016) 7 SC 621.
27
Khushwant Singh and Ors. vs. Maneka Gandhi (2001) DELHC 768.
28
Reliance Petrochemicals v Proprietors of Indian Express Newspapers Bombay (P.) Ltd, AIR 1989 SC 190.
29
Odyssey Communications Pvt. Ltd., supra note 3.
9
reiterates that 'We must remember that the people at large have a right to know in order to be
able to take part in a participatory development in the industrial life and democracy. Right to
Know is a basic right which citizens of a free country aspire in the broader horizon of the
right to live in this age in our land under Article 21 of our Constitution. That right has
reached new dimensions and urgency. That right puts greater responsibility upon those who
take upon the responsibility to inform.' The case at hand creates a similar point of contention
between the risk which will be caused by the publication of the article and the damage to the
fundamental right of freedom of knowledge of the people concerned and the obligation of
Press to keep people informed. Thus, in a similar fashion as dictated by the Supreme Court of
India, the fundamental rights of the citizens of the country should prevail. Consequentially,
the balance of convenience between the parties of the injunction is question is unfavourable
towards the grant of the injunction against the petitioner.
3. That There exists an irreparable loss inflicted on the petitioner due to the grant of
the injunction.
It is contended that the an irreparable injury is suffered by both the petitioner and the citizens
of the country due to the interim injunction prayed by the Respondent It is accepted that
irreparable injury" "does not mean that there must be no physical possibility of repairing the
injury, but means only that the injury must be a material one, namely one that cannot be
adequately compensated by way of damages."30 It is submitted that the Petitioner shall suffer
irreparable loss in the form of loss of market loss due to the tarnishing of reputation by a
baseless suit claimed by the respondent.
In the discussion of the telecast of judicial proceeding in the case of Swapnil Tripathi and
Ors. vs. Supreme Court of India and Ors., Dr. D.Y.Chandrachaud opined that 'Public
confidence in the judiciary and in the process of judicial decision making is crucial for
preserving the Rule of law and to maintain the stability of the social fabric. Peoples' access
to the Court signifies that the public is willing to have disputes resolved in Court and to obey
and accept judicial orders. Open courts effectively foster public confidence by allowing
litigants and members of the public to view courtroom proceedings and ensure that the
judges apply the law in a fair and impartial manner. By providing virtual access of live court
proceedings to one and all, it will effectuate the right of access to justice or right to open
justice and public trial, right to know the developments of law and including the right of
justice at the doorstep of the litigants.' In relation to this, the Court specified that a trial held
30
Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276 (277).
10
subject to the public scrutiny facilitated the citizens with the right to know and the right to
receive. It was said that 'As no person can be heard to plead ignorance of law, there is
corresponding obligation on the State to spread awareness about the law and the
developments thereof including the evolution of the law which may happen in the process of
adjudication of cases before this Court. The right to know and receive information, it is by
now well settled, is a facet of Article 19(1)(a) of the Constitution and for which reason the
public is entitled to witness Court proceedings involving issues having an impact on the
public at large or a Section of the public, as the case may be. This right to receive
information and be informed is buttressed by the value of dignity of the people.' In light of
this, it is evident that the infringement of the rights of the citizens due to the injunction in
question impairs the function of a participatory democracy as a whole, thus justifiably so is
an irreparable loss. A volition of these rights cannot be compensated for in any manner and
thus infringement of the same must be abstained from strictly.
B. That the injunction is arbitrary and excessive in nature.

It is submitted by the petitioner that the grant of injunction in the case at hand is not a
reasonable course of action and is excessive in the approach it takes. The injunction in
question places the Respondent’s right to fair trial and her presumption of innocence in
higher regard in comparison to the fundamental right to expression and the citizen’s right to
know. While it may be argued that the right to fair trial as established in the case of Shashi
Tharoor vs. Arnab Goswami and Ors.31 ‘The right to fair trial is one of the fundamental
guarantee of human rights and rule of law, aimed at ensuring administration of justice. ‘A
fair trial is an open trial by an impartial judge in which all parties are treated equally.’ Is of
outmost importance, it is a settled position of law that the principle of primacy cannot to
made use of in cases where in the same would causes complete negation of the other right. To
appreciate what is established hereinabove, it is necessary to acknowledge the concept of
balancing fundamental rights as expressed in the case of Mazdoor Kisan Shakti Sangathan vs.
The Union of India (UOI) and Ors. 32. In discussion of the case it was said that ‘ There may
be a perception that if principle of primacy is to be followed, then the right of one gets totally
extinguished. It has to be borne in mind that total extinction is not balancing. When
balancing act is done, the right to fair trial is not totally crippled, but it is curtailed to some
31
Shashi Tharoor vs. Arnab Goswami and Ors. (2017) DELHC 4544.
32
Mazdoor Kisan Shakti Sangathan vs. The Union of India (UOI) and Ors. (2018) SC 1307.
11
extent.’ Additionally, going by the dicta in Asha Ranjan 33, principle of primacy cannot be
given to one right whereby the right of the other gets totally extinguished. Total extinction is
not balancing. Balancing would mean curtailing one right of one class to some extent so that
the right of the other class is also protected. Thus it is evident that while the respondents right
to fair trial is only curtailed, the petitioner’s right to freedom and the right to know of the
citizen’s is completely extinguished. The Civil Court of Feledern, by providing an Interim
Injunction against Anarchy TV does not reasonably curtail the freedom of expression but
unjustifiably drives it to extinction.
Due to this nature of interlocutory orders, it has been established in multiple judicaial
decisions that a recourse of this kind must be of outmost reasonableness and the last resort to
relief. It is contested by the petitioner that the interim injunction granted against Anarchy TV
was not completely necessary and reasonable. In the case of Subramanian Swamy vs. Union
of India (UOI) and Ors.34, it was stated that ‘ in the grant of that rare pre-publication
injunction, courts have exercised extreme caution, lest it curtail the freedom of speech
guaranteed under Article 19(1)(a) of the Constitution of India’ . Additionally relying upon the
dicta of the Sc in Pushp Sharma v. D.B. Corp. Ltd. & Ors.35, which held, inter alia, as under: "
We feel that adding further would not be appropriate except to say that whenever
interlocutory or ex parte injunctive relief of the kind which this Court is now concerned with,
is sought, the threshold for considering the prima facie strength has to necessarily be of a
very high order. The consequence of not following established rules and principles would be
that the Courts unwittingly would, through their orders, stifle public debate. The Members of
the public and citizens of this country expect news and fair comment as to whether a public
institution including a media house or journal (which cannot claim any exemption from
being public institutions as they are the medium through which information is disseminated,
and are one of the pillars of democracy) functions properly. In case there are allegations
which result in controversies as to the reliability of the news which one or the other
disseminates to the public, that too is a matter of public debate. Unless it is demonstrated at
the threshold that the offending content is malicious or palpably false, an injunction and that
too an ex-parte one, without recording any reasons should not be given. Democracy
presupposes robustness in debates, which often turns the spotlight on public figures and
public institutions like media houses, journals and editors. If courts are to routinely stifle
33
Asha Ranjan and Ors. vs. State of Bihar and Ors. (2017) SC 559.
34
Subramanian Swamy, supra note 26.
35
Pushp Sharma and Ors. vs. D.B. Corp. Ltd. and Ors. (2018) DELHC 164.
12
debate, what cannot be done by law by the State can be achieved indirectly without satisfying
exacting constitutional standards that permit infractions on the valuable right to freedom of
speech... " It is established that any excessive interference with expression can
consequentially prove to impair democracy completely. The same ideology is corroborated
by the DELHC in the case of Harper Collins Publishers India Pvt. Ltd. vs. Sanchita Gupta
and Ors.36 Thus it is crucial that the provision of interlocutory orders take place as only the
last resort and in due consideration of all facets. Furthermore, if such a recourse seems
necessary, it should be executed with outmost reasonableness. In the case of Jai Prakash and
Ors. vs. State of Uttarakhand and Ors. 37, it was opined that , ‘The right to uninhibited
freedom of speech conferred by Article 19(1)(a) is basic and vital for the sustenance of
parliamentary democracy, which is a part of the basic structure of the Constitution. The
"reasonable restrictions" are those which are meant to prevent the expression of a thought
which is intrinsically dangerous to public interest and would not include anything else. The
enabling power in Article 19(2) to impose reasonable restrictions on the right conferred by
Article 19(1)(a) is intended to safeguard the interests of the State and the general public and
not of any individual, and, therefore, Article 19(2) cannot be regarded as the source of
authority for Section 499 of Indian Penal Code which makes defamation of any person an
offence.’ Hence, the petitioner submits that the interlocutory order prayed by the respondent
and granted by the Civil Court of Ferelden is arbitrary, excessive in nature and beyond what
is required in the interest of the public.
PRAYER
36
Harper Collins Publishers India Pvt. Ltd. vs. Sanchita Gupta and Ors. (2020) DELHC) 1769.
37
Jai Prakash and Ors. vs. State of Uttarakhand and Ors. (2020 ) UCHC 204.
13
In light of the issues raised, arguments advanced and authorities cited, the Petitioners
respectfully requests this Hon’ble High Court to adjudge, hold and declare that :
a. The statements made by the Petitioner on Anarchy TV during the reporting on the case of
Alistair's death are not defamatory in nature as they are protected under the fair comment
exception.
b. The injunction granted against the Petitioner is unconstitutional in nature and thus, the
same must be absolved.
In respectful submission before the High Court of Orlais,
Counsel on behalf of Mr. Doorknob Goosewami (Petitioner)
14

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A-109

Gujrat National Law University

In The Honourable High Court of Orlais

Civil Appeal No.xxxx of 2020 arising out of Writ Petition of 2020

Under Article 226 of the Constitution of Thedas

Mr. Doorknob Goosewami ...………………………………………… Petitioner

Written Submission on Behalf of the Petitioner

1. INDEX OF AUTHORITIES…………………………………………………… III

STATUTES AND OTHER AUTHORITIES

1. Civil Procedure Code, 1908

1. RICHARD PARKES et al., Gatley On Libel and Slander 64 (8ed. 2017).

2. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009).

1. http://www.scconline.com (last visited on 7th January, 2021).

CEO Chief Executive Officer

Edn. / Ed. Edition

L.J. Law Journal

PIL Public Interest Litigation

VI SCC Supreme Court Cases

1. The present case concerns a claim by Mr. Doorknob Goosesawmi (Petitioner) of

I. That the writ petition is maintainable under Article 226.

IV. That the writ petition is maintainable under Article 226.

III. That the Injunction granted against Anarchy TV is unconstitutional.

B. That the injunction is arbitrary and excessive in nature.

In respectful submission before the High Court of Orlais,

Counsel on behalf of Mr. Doorknob Goosewami (Petitioner)

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