MEMORANDUM ON BEHALF OF PETITIONER

P-12

DR RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2021

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

CITIZENS UNION FOR DEMOCRATIC RIGHTS…………………………...

(PETITIONER)
v.
UNION OF INDIA………………………………………………..……..…
(RESPONDENT)

CLUBBED WITH
INDIAN BROADCASTING CORPORATION…………………………………………...
(PETITIONER)
v.
UNION OF INDIA …………………………………………………………..
(RESPONDENT)

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDICA

UNDER EPISTOLARY JURISDICTION OF THE CONSTITUTION OF INDIA

-WRITTEN SUBMIS S ION ON B EHALF OF THE PETITIONER

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TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................... 2
LIST OF ABBREVIATIONS ............................................................................................. 3
TABLE OF AUTHORITIES............................................................................................... 5
STATEMENT OF JURISDICTION .................................................................................... 8
STATEMENT OF FACTS ................................................................................................. 9
ISSUES RAISED ..............................................................................................................11
SUMMARY OF ARGUMENTS........................................................................................12
II. WHETHER THE DIRECTION OF THE GOVERNMENT OF INDICA IN
VIOLATION OF ARTICLE 19 OF THE CONSTITUTION OF INDICA?..........................12
ARGUMENTS ADVANCED ............................................................................................13
I. THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDICA ..........................................................................................13
PRAYER ..........................................................................................................................23

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LIST OF ABBREVIATIONS

Abbreviations Definition
& And
¶/Para Paragraph
AIR All India Reporter
Anr. Another
Art. Article
Co. Company
CONST . Constitution
ed./edn. Edition
et. al. And others
Hon’ble Honorable
Id. Ibidem
In re. In reference
Ltd. Limited
MP Madhya Pradesh
AP Andhra Pradesh
No. Number
Ors. Others
QB Queen's Bench

SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
TN Tamil Nadu
UK United Kingdom
UP Uttar Pradesh
US/USA United States of America
v. Versus

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ICCPR International Covenant on Civil and Political

Rights
art. Article
DMD Duchenne Muscular Dystrophy

NDT National Disease Tribunal

UDHR Universal Declaration of Human Rights
CPC Civil Procedure Code

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TABLE OF AUTHORITIES

Cases

, Directorate General of Doordarshan v Anand Patwardhan [2006] 8

SCC 433: AIR 2006 SC 3346. ....................................................... 17

Assam Sanmilita Mahasangha v Union of India 2015 3 SCC 1 ........ 14

Brij Bhushan v State of Delhi, AIR 1950 SC 129. ............................. 19

Chief information commissioner v State of Manipur 2011 15 SCC 1.

......................................................................................................... 17

Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118: [1950]

SCR 188. ......................................................................................... 18

Hussainara Khatoon v Home Secretary, State of Bihar 1980 1 SCC 98

......................................................................................................... 14

Indibility Creative Pvt Ltd v Government of West Bengal 2019 SCC

OnLine SC 520. .............................................................................. 16

M.R.F Ltd v Inspector Kerala Govt AIR 1999 SC 188. .................... 15

Nalla Thampy Thera v Union of India,1985 AIR 1133. .................... 13

Navtej Singh Johar v Union of India [2018] 10 SCC 1 ..................... 18

Om Kumar v Union of India AIR 2000 SC 3689.............................. 18

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PapnasamLabour Union v Madura Coats Ltd AIR 1995 SC 2200:

[1995] 1 SCC 501. .......................................................................... 18

R Rajagopal v State of Tamil Nadu , (1994) 6 SCC 632. .................. 20

Rashid Ahmed v Municipal Board, kairana AIR 1950 SC 163 .......... 13

Romesh Thapar v Union of India, AIR 1950 SC 124. ....................... 19

S. Rangarajan v P. Jagjivan Ram 1989 2 SCC 574........................... 14

S.P. Gupta v President of India AIR 1982 SC 149. ........................... 11

State of Bombay v United Motors AIR 1951 SC 252 ....................... 13

State of Madras v V.G. Row AIR 1952 SC 196. ................................ 14

S P Sampath Kumar vs Union of India 1987, AIR 386. ........................ 14

Sakal Papers Ltd. v Union of India AIR 1962 SC 305. ......................... 17

Somerset v Stewart (1772) [98 ER 499]. ............................................... 17

Terminiello v Chicago 93 L Ed 1121. ................................................ 17

Veerappa Pillai v Raman Rtimin Ltd AIR 1952 SC 192 ................... 13

Union of India v. Assn. for Democratic Reforms 2002 (3) SCR 294..... 14

Statutes

Article 19(1)(a) of the Constitution of India....................................... 12

Article 19(1)(g) of the Constitution of India ...................................... 12

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Books

V.G. Ramchandran, Law of Writs (6th edn, Lucknow Eastern Book

Company, 2006) 26. ........................................................................ 12

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction in this matter under
Article 32 which reads as follows:
“32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”

All of which is most respectfully submitted

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STATEMENT OF FACTS

[BACKGROUND]
The Union of India got independence on 15th of August, 1947. Upon independence, the
constitution makers gave emphasis on these rights and a separate chapter was made in the
constitution relating to Fundamental Rights of rights.

[INSINUATING EVENTS]

After more than 60 years of independence, India has successfully become a successful
developing country. On 24th January 2021, 4 children aged 3,4,5 & 6 years respectively were
murdered and their dead body was chopped into pieces and were attempted to be burnt in a
Tandoor in Karolbagh area of New Delhi, the capital of India.

This incident raised fury amongst citiznes of India due to which this case was transferred to a
fast track court. All the accused were tried and were sentenced to death penalty.The
conviction was upheld by the High Court of New Delhi and the appeal against the decision of
the High Court is pending before the Supreme Court.

India Broadcasting Corporation(hereinafter IBC), a very prominent news channel of India

which also works for the rehabilitation of criminals and they habitually go to jail to check
whether jail manuals are being complied with it not.

On 14th October 2021, IBC sought permission from the superintendent of jail to conduct an
interview with one of the convicts in that brutal murder case. After the completion of
interview, they made a documentary and they were about to reveal it publicly on news
channel on 11th February 2022 by the name “Indian Future”.

However, before its release, its contents were leaked out and it was declared against the
dignity of people by some activists of the country. The interview of the parents of the victims
was conducted and they said that truth must come before the public. However, no
authoritative decision had yet been made, a social tinderbox ignited throughout the country.
Taking account of these circumstances the government banned the release of the
documentary.

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[AFTERMATH]

Citizens Union for Democracy Rights, an NGO which makes people aware of Fundamental
Rights, established on 4th January 1993 filed a Public Interest Litigation against the
government for banning the documentary. Their main contention in the PIL was that it is the
right of general public to know the mind set of criminals and by banning the documentary the
union is violating the Fundamental Right of Freedom of Speech and expression of citizens of
India. Another PIL was filed by the news channel IBC that by banning the documentary they
were violating their Fundamental Right of Freedom of Press which is recognized under
Article 19 of the Constitution of India. Supreme Court clubbed these two together.

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ISSUES RAISED

I
WHETHER THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA

II
WHETHER THE DIRECTION OF THE GOVERNMENT OF INDIA IN VIOLATION OF
ARTICLE 19 OF THE CONSTITUTION OF INDIA?
III
WHETHER PRIOR RESTRAINT IS A PRIMA-FACIE VIOLATION OF FREEDOM
OF PRESS IN THE INDIAN CONSTITUTION?

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SUMMARY OF ARGUMENTS

I. WHETHER THE PUBLIC INTEREST LITIGATION IS

MAINTAINABLE UNDER THE CONSTITUTION OF INDIA?

It is most humbly submitted before this Hon'ble Court that the present petition is

maintainable because the Petitioner has the requisite locus standi and as there has

been a violation of the Petitioner’s fundamental rights under Articles 19(1)(a),

19(1)(g). Also, the petitioner has an interest in the present case as the petition

involves allegations like a violation of Article 251 and Article 212. There is no

alternative and efficacious remedy in the present case, and the court is a

“sentinel on the qui vive”. Hence, the petition is maintainable under Article 32

of the Constitution of India.

II. WHETHER THE DIRECTION OF THE GOVERNMENT OF

INDIA INVIOLATION OF ARTICLE 19 OF THE

CONSTITUTION OF INDIA?

It is humbly submitted before this Hon'ble Court that the direction of the

Government is in violation of Article 19 of the Constitution of India. The

direction is not reasonable as it poses unnecessary and excessive restrictions and

tends to unravel our country's democratic thread. The direction was not in the

public interest and furthers the rigidity in the society and their mindsets towards

the contemporary issues prevailing in our surroundings. Freedom of speech is

one of the most treasured rights, but in this case, it is quite easily exploited by this

direction of the Government of Indica. Hence, the direction is violative of Article

1
Article 25 of the Constitution of India.
2
Article 21 of the Constitution of India.

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19 of the Constitution.

III. WHETHER PRIOR RESTRAINT IS A PRIMA-FACIE VIOLATION OF

FREEDOM OF PRESS IN THE INDIAN CONSTITUTION?

A prior restraint on publication or circulation of the press is a violation of Freedom of Press

under the Indian Constitution and is also unconstitutional. Censorship or restraint, as it may
appear, must ideally never be a precautionary action and may be taken at a later stage, saves
in certain exceptional situations.

ARGUMENTS ADVANCED

I. THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE .

It is most humbly submitted before this Hon'ble Court that the present Public Interest

Litigation is maintainable because it has requisite locus standi and interest in the present

case [1.1]. This is an efficacious remedy in the present case. [1.2] Since the court is a

“sentinel on the qui vive”. [1.3]. The writ petition is maintainable under Article 32 of the

Constitution of India.3

[1.1] THE PETITIONER HAS LOCUS STANDI AND SUFFICIENT INTEREST

It is most humbly submitted that this Hon'ble Court in the case of S.P. Gupta v. Union

of India4, held that any member of the public or social action group acting bonafide can

invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal

against violation of a legal or constitutional rights of persons who due to social or

3
Article 32 of the Constitution of India.
4
S.P. Gupta v President of India AIR 1982 SC 149.

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economic or any other disability cannot approach the Court. By this judgment PIL

became a potent weapon for the enforcement of public duties where executed in action

or misdeed resulted in public injury. And as a result any citizen of India or any

consumer groups or social action groups can now approach the apex court of the

country seeking legal remedies in all cases where the interests of general public or a

section of public are at stake.

Therefore, Mr Amol of India Broadcasting Corporation has the requisite locus standi to

approach this court in the present matter. Locus Standi means the right to bring an

action, be heard in court, or address the court on a matter before it. 5 In other words, the

term “locus standi” can be understood as a legal capacity to challenge legislation, an

order or a decision6. The order of the government contravenes the fundamental right of

the Petitioner to freedom of speech and expression conferred on him by Article

19(1)(a)7 and freedom of trade and profession conferred by Article 19(1)(g) of the

Constitution.8

There can be no doubt that freedom of speech and expression includes freedom of

propagation of ideas and that freedom is ensured by the freedom of circulation.5

“Liberty of circulation is as essential to that freedom as the liberty of publication.

Indeed, without circulation, the publication would be of little value” It is therefore

evident that the order of the government of India would be a violation of Article 19(1)(a)

and 19(1)(g).

The counsel submits that there are instances that support the doctrine especially post

1983, whereby the courts allowed the public interest litigation on lines of ‘pro bono

5
Supra
6
V.G. Ramchandran, Law of Writs (6th edn, Lucknow Eastern Book Company, 2006) 26.
7
Article19(1)(a) of the Constitution of India.
8
Article19(1)(g) of the Constitution of India.

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public under the guise of social interest litigation. The Supreme Court in Nalla Thampy

Thera v Union of India 9 allowed the petitioner’s concern regarding improvement in the

Indian Railways despite any right being infringed. Similarly, in the landmark case of

Lakshmi Kant Pandey v Union of India , it was observed that the petitioner despite

being an advocate of the Supreme Court had the locus to initiate action against

malpractices adopted by voluntary organizations dealing with intercountry adoptions.

Hence, we humbly submit that we deserve a chance to prove our case before this

hon’ble Supreme Court of India.

[1.2] NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE TO THE

PETITIONER

It is humbly submitted before this hon’ble Court that approaching the Supreme Court

under Article 32 for the protection of fundamental rights is itself a fundamental right.6 It

is unnecessary first to approach the High Court and exhaust the remedy under Article

22610 before approaching the Supreme Court.7 Hence, it was held before this Hon'ble

Court that the mere existence of an adequate alternative legal remedy could not be per se

be a suitable and sufficient ground for dismissing a petition under Article 32 of India's

Constitution.8

Mandamus is not refused on the ground that there is an adequate alternative remedy

where the Petitioner complains that his fundamental right is infringed. 11 The courts are

duty-bound to protect the fundamental rights, and therefore, mandamus is issued. It is

only when mandamus is issued "for any other purpose" that the existence of an alternate

remedy bars its issuance. 12 In Rashid Ahmad v. Municipal Board,13 it was held that in

9
Nalla Thampy Thera v Union of India,1985 AIR 1133.
10
Article 226 of the Constitution of India.
11
State of Bombay v United Motors, AIR 1951 SC 252.
12
Veerappa Pillai v Raman Rtimin Ltd, AIR 1952 SC 192.
13
Rashid Ahmed v Municipal Board, kairana AIR 1950 SC 163 .

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relation to the Fundamental Rights, the availability of alternative remedy could not be an

absolute bar for the issue of writ however,the facts can be taken into consideration.

By reason of the above holdings, the present petition stands maintainable in the absence

of analternate and efficacious remedy.

[1.3] THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”

14
This Hon'ble Court has repeatedly assumed the role of the “sentinel on the qui vive” to

enforce the fundamental rights of the people. It is the watchful Guardian of our rights. It

is humbly submitted that in light of the prevailing circumstances in India, the Court has

the constitutional duty and obligation to entertain this petition15. It is the duty of the

Courts to examine the merits of each case with respect to the prevailing situation,

looking at the violations of the fundamental rights alleged, and decide in view of the

changing notions of life and personal liberty of humans.16

Therefore, we request this hon’ble Supreme Court to hold the petition as maintainable

under Art. 32 of the Constitution of India.

II. THE DIRECTION OF THE GOVERNMENT OF INDIA IN VIOLATION

OF ARTICLE 19 OF THE CONSTITUTION OF INDIA.

It is most humbly submitted before this Hon'ble Court that the direction given by the

Government of India is in violation of Articles 19(1)(a) and 19(1)(g) of the Constitution

of India as it puts unreasonable restrictions on the fundamental right to speech and

expression & trade and profession, respectively. In S. Rangarajan v. P. Jagjiavan Ram,17

14
State of Madras v V.G. Row AIR 1952 SC 196.
15
Hussainara Khatoon v Home Secretary, State of Bihar 1980 1 SCC 98.
16
Assam Sanmilita Mahasangha v Union of India 2015 3 SCC 1.
17
S. Rangarajan v P. Jagjivan Ram 1989 2 SCC 574.

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it was held that the freedom of speech under article 19(1)(a) means the right to express

one’s opinion by word of mouth, writing, printing, picture or propagate or publish an

opinion. The communication of the ideas can be made through any medium –

newspapers, magazine or movie and these rights aresubject to reasonable restrictions.

[2.1] THE DIRECTION OF THE GOVERNMENT ARE NOT REASONABLE

The Supreme Court has held that in examining the reasonableness of a statutory

provision, whether it violated the fundamental right guaranteed under Art. 19, one has

to keep in mind that the restrictions must not be arbitrary or of an excessive nature,

going beyond the requirement of the general public's interest. No abstract or general

pattern or a mixed principle can be laid down so as to be of universal application. A just

balance has to be struck between the restrictions imposed and social control envisaged

by Art. 19. We need to think about the prevailing social needs, which are to be satisfied

with the restrictions. There must be a direct and proximate nexus or a reasonable

connection between the restrictions imposed and the object sought to be achieved by the

Act, that being so a strong presumption in favour of the constitutionality of the Act will

naturally arise.18

2.1.1 The direction poses unnecessary and excessive restrictions

In the case of Romesh Thappar,19 this very court had held that they were of the opinion

that unless a law restricting freedom of speech and expression is directed solely against

the undermining of the security of the state or the overthrow of it, such law cannot fall

within the reservation under clause (2) of Article 19, although the restrictions which it

seeks to impose may have been conceived generally in the interests of public order.

Here, the government's direction is just arbitrary as they reacted on the whims and

fancies of some activists of the country.

18
M.R.F Ltd v Inspector Kerala Govt AIR 1999 SC 188.
19
Romesh Thappar v State of Madras AIR 1950 SC 124.

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2.1.2 The Direction tends to unravel the democratic thread of our country

Legislation that arbitrarily or excessively invades the right, cannot be said to contain the

quality of reasonableness. In the case of Indibility Pvt. Ltd.,20 the SC said that

Commitment to free speech involves protecting palatable speech as well as speech that

we do not want to hear. A declaration attributed to Voltaire: “I despise what you say but

will defend to the death your right to say it” encapsulates the essence of the protection

of free speech. Protection of the freedom of speech is founded on the belief that speech

is worth defending even when certain individuals may not agree with or even despise

what is being spoken.21

This principle is at the heart of democracy, a basic human right, and its protection is a

mark of a civilized and tolerant society.” Through its acts, the Petitioner in the past too

has tried to bring positive changes in the community. TThe fundamental freedom under

Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles

19(2), and the restriction must be justified on the anvil of necessity and not the

quicksand of convenience or expediency.

John Stuart Mill presented one of the first and perhaps the most famous liberal defence

of free speech.22 Mill defends the view that extensive freedom of speech is a

precondition not just for individual happiness, but for a flourishing society. Without free

expression, humankind may be robbed of ideas that would otherwise have contributed

to its development. Preserving freedom of speech maximizes the chance of truth

emerging from its collision with error and half-truth. It also reinvigorates the beliefs of

those who would otherwise be at risk of holding views as dead dogma.” The democratic

20
Indibility Creative Pvt Ltd v Government of West Bengal 2019 SCC OnLine SC 520.

21
Nigel Warburton, Free Speech: A Very Short Introduction (Oxford University Press, 2009) 27.
22
24 David van Mill, ’Freedom of Speech’, The Stanford Encyclop edia of Philosophy (Summer 2018 Edn)
<https://plato.stanford.edu/archives/sum2018/entries/freedom-speech/> accessed 10 December 2020.

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credentials of a State are judged today by the extent of freedom the press enjoys in that

State.23 This decision quotes from the opinion of Douglas, J. in Terminiello v. Chicago

that “acceptance by Government of a dissident press is a measure of the maturity of the

nation”.24

[2.2] THE DIRECTION WAS NOT IN THE INTEREST OF THE GENERAL PUBLIC
25
In Chief information Commissioner v. State of Manipur, The exercise of judicial

discretion in favour of free speech is not only peculiar to our jurisprudence but is a part

of the jurisprudence in all the countries governed by the rule of law with an independent

judiciary. In the connection, if we may quote what Lord Acton said in one of his

speeches: "Everything secret degenerates, even the administration of justice, nothing is

safe that does not show how it can bear discussion and publicity.”

2.2.1.The Direction only furthers the rigidity in the society for such contemporary

issues.

It is humbly submitted before the Hon’ble Supreme Court of Indica that the Test of

Reasonableness as mentioned in the Telecasting case fairly captures the essence of the

situation we are dealing with. The Supreme Court in the Directorate General of Doordarshan

v. Anand Patwardhan26 case had laid down the reasonable restriction about forms of societal

norms of decency. In the matter, the Supreme court said, “the documentary film Father, Son

and Holy War depicts social vices that are eating into the very foundation of our Constitution.

Communal riots, caste and class issues, and violence against women are issues that require

every citizen’s attention for a feasible solution.”In the present matter, the magazine with its

enlightened and progressive journalism depicts social vices that are eating into the very

23
Printers (Mysore) Ltd v Asstt Commercial Tax Officer 1994 2 SCC 434.
24
Terminiello v Chicago 93 L Ed 1121.
25
Chief information commissioner v State of Manipur 2011 15 SCC 1.
26
, Directorate General of Doordarshan v Anand Patwardhan [2006] 8 SCC 433: AIR 2006 SC 3346.

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foundation of our Constitution and the issues targeting an important section of the society

which requires attention by the changing society for a feasible solution. A similar question of

decency was also dealt with by the Hon’ble Supreme Court in Navtej Singh Johar v. Union of

India27whereby the Hon’ble Court remarked that it amounts to an unreasonable restriction or

public decency and morality cannot be amplified beyond a logical or rational limit.

A restriction should strike a proper balance between the freedom guaranteed by any of the

clauses and the social control so that the freedom is limited only to the extent necessary to

protect the society of which a citizen is only a part. 28 A blanket ban on the right to freedom of

speech and expression is unreasonable and shows the governments’ infirm conviction

towards the fundamental rights guaranteed to its citizens. The government in the contested

issue failed to maintain law and order 29 which was its duty and thus, came down heavily on

the petitioner curtailing his right to expression. In Chintaman Rao v. State of Madhya

Pradesh30, Legislation that arbitrarily or excessively invades the Fundamental Right, cannot

be said to contain the quality of reasonableness unless it strikes a proper balance between the

Fundamental Right guaranteed and the restriction imposed thereon.

Moreover, the restriction must not be arbitrary or of an excessive nature to go beyond the

requirement of the felt need of the society and object sought to be achieved as has been laid

down by the Hon’ble Supreme Court in Papnasam31. The government delegated from

performing its primary duty of maintaining law and order by banning the caricature and the

article published that sought to achieve social awareness.

Thus, in the prima facie instance the government actions fail the reasonable test and fail

miserably in the balance that was ought to be maintained by the Government. Therefore, it is

27
Navtej Singh Johar v Union of India [2018] 10 SCC 1.
28
Om Kumar v Union of India AIR 2000 SC 3689.
29
Moot Proposition ¶ 11
30
Chintaman Rao v State of Madhya Pradesh AIR 1951 SC 118: [1950] SCR 188.
31
Papnasam Labour Union v Madura Coats Ltd AIR 1995 SC 2200: [1995] 1 SCC 501.

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easily deducible that the government’s actions were arbitrary, excessive, and violated the

rights conferred upon its citizens .

III. PRIOR RESTRAINT IS A PRIMA-FACIE VIOLATION OF FREEDOM

OF PRESS IN THE INDIAN CONSTITUTION.

The counsel submits before the court that a prior restraint on publication or circulation of the
press is a violation of Freedom of Press under the Indian Constitution and is also
unconstitutional. Censorship or restraint, as it may appear, must ideally never be a
precautionary action and may be taken at a later stage, save in certain exceptional situations.

Therefore, through several judicial precedents, the courts have attempted to define the scope,
extent, and objective standard for such censorship, and have laid out instances wherein such
restraint can or cannot be permitted.

In the landmark case of Romesh Thapar v. Union of India 32, wherein a weekly magazine
critiquing the policies of the then government was censored to the extent that its circulation
was restricted under the Madras Maintenance of Public Order Act, 1949. The Apex Court
stated that, “ Without circulation, publication would be of little value, and the restrictions
encapsulated under Article 19(2) must not be attracted in such cases, but only where the
potential speech is likely to have an adverse effect of overthrowing the government.”

Another landmark judgment outlining the surge of prior restraint in India was the case of Brij
33
Bhushan v. State of Delhi , wherein the state of Delhi had the authority to seek scrutiny
prior to publication, to ensure “public safety” and “public order”, under the East Punjab
Public Safety Act, 1949.11 While the Apex Court struck down the order of the commissioner,
it simultaneously opined that such scrutiny was permissible under the Constitution of India
provided that the restraint fell under the restrictions as prescribed under Article 19(2).
Similarly, it has been held that prohibiting a newspaper from publishing its views about any
burning topic of the day is a serious encroachment upon their rights, except when the same
attracts the provisions of Article 19(2).

32
Romesh Thapar v Union of India, AIR 1950 SC 124.
33
Brij Bhushan v State of Delhi, AIR 1950 SC 129.

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Another important milestone in this quest to establish the true nature and implication of prior
restraint was the landmark case of R. Rajagopal v. State of Tamil Nadu .34 In the said case,
the Supreme Court opined that the government has no authority to impose a prior restraint
upon publication of defamatory material against its officials and there is no law empowering
the state or its officials to prohibit or to impose a prior restraint upon the press or media. The
press is very much entitled to publish anything, in so far as it appears from public records,
and they make all possible attempts to reasonably verify the truthfulness of all the facts.

The Supreme Court declined to grant the injunction on the ground that cause of action for
defamation could only arise after publication and that there was no concept of potential
defamation. This ruling was followed by Delhi High Court when it declined to injunct
publication of Khushwant Singh’s autobiography containing certain alleged objectionable
references to the Gandhi family.

Therefore, in light of the early development of the concept, it may be observed that prior
restraint is held to be permissible, but only in rare and exceptional cases, and is largely
frowned upon with reference to newspapers, magazines, and other forms of print media. The
government should maintain a position of non-interference with respect to media, especially
when it comes to pre- publication censorship. The only thing worse than unchecked and
unbridled media is state-controlled media. Restraint is mostly faced in those situations where
the information can prove to be detrimental to those in power, and hence immediate coercive
steps are taken to curb the same. This goes against the concept of the right to receive
information as has been expressed in various cases where the Supreme Court has said that in
modern constitutional democracies, it is axiomatic that citizens have a right to know about
the affairs of the government.

34
R Rajagopal v State of Tamil Nadu , (1994) 6 SCC 632.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, the

Counsel for the petitioner humbly submits before the Hon’ble Supreme Court that:

I. Declare, that the Public Interest Litigation is maintainable under Article 32 of

the And/or to further pass any order that the Hon’ble Court may deem fit in

the interest of Justice, Equity and Good conscience.

II. Declare, that the banning of the documentary is violative of Article 19 of the

Constitution of India.

III. Declare, that the prior retrainst is a prima-facie violation of the freedom of

press under the Cosntitution of India.

And for this kindness, the Counsel on behalf of the petitioner as duty bound shall
forever pray.

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