IN THE HON’BLE SUPREME COURT OF INDIA

AT NEW DELHI

WRIT PETITION NO. ________/2009

IN THE MATTER OF

ATV AND LTV………………………………………………………….PETITIONERS

VERSUS

GOVT. OF INDIA……………………………………………………….RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

ON SUBMISSION TO THE HONOURABLE JUDGE OF THE SUPREME COURT

OF THE INDIA AND HIS COMPANION JUDGES

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………………….3

INDEX OF AUTHORITIES……………………………………………………………4

STATEMENT OF JURISDICTION…………………………………………………….7

STATEMENT OF FACTS ………………………………………………………………8

STATEMENT OF ISSUES………………………………………………………………9

SUMMARY OF ARGUMENTS………………………………………………………..10

ARGUMENTS…………………………………………………………………………..11

PRAYER…………………………………………………………………………………29

Written Submission on Behalf of the Petitioner 2

 ABBREVATIONS

 AIR All India Reporter

 Art Article
 Co Company
 Deptt Department
 Ed. Edition
 P. Page
 Pvt. Private
 SC Supreme Court
 SCC Supreme Court Cases
 SCR Supreme Court Reporters
 Sec Section
 Supp. Supplement
 T.N. Tamil Nadu
 v. Versus
 Vol. Volume

Written Submission on Behalf of the Petitioner 3

 INDEX OF AUTHORITIES

Cases

 Bharat Sanchar Nigam Ltd. and Anr.Vs. BPL Mobile Cellular Ltd. and Ors 2008 (8)
SCALE 106

 L.I.C. v. Manubhai Shah, AIR 1993 SC 171

 Express Newspapers v. Union of India, AIR 1986 SC 872: (1986) 1 SCC 133.

 Ajay Goswami v. Union of India (UOI) and Ors1 (2007) 1 SCC 143

 Prabha v. Union of India, AIR 1982 SC 6: (1982) 1 SCC 1: 1982 SCC (Cri) 41.

 Government of Andhra Pradesh and Ors. Vs.Smt. P. Laxmi Devi (2008) 4 SCC 720

 Arun Kumar and Ors.vs. Union of India (UOI) and Ors (2006) 205 CTR (SC) 193

 Confederation Of Ex-Servicemen Associations & Ors. vs Union Of India & Ors, (2006)
8 SCC 399

 S.S.K. Niyami v. Union of India, AIR 1990 SC 2128: (1990) 4 SCC 516.

 Director General, Directorate General of Doordarshan and Ors. v. Anand Patwardhan and
Anr. (C.A. No. 613 of 2005)

 Marbury v. Madison 5 U.S. (1Cranch) 137 (1803)

 P.Venugopal vs. Union of India (2008) 5 SCC 1

 Roop Singh Negi Vs. Punjab National Bank and Ors. (2007) 5 SCC 150

Written Submission on Behalf of the Petitioner 4

 Books

 Bakshi P.M, “The Constitution of India”, 7 th edition, 2006, Univeral Law Publishing Co.
Pvt. Ltd, New Delhi

 Bakshi, Ranbir, A.Laxminath, “Constitutional Law”, 2006, Lexis Nexis Butterworths,

New Delhi.

 Black, Henry Campbell, “Black’s Law Dictitionary”, 6th edition, 1990, West Publishing
Company, Minnesota.

 Devidas, T., Mallar, V.S. and Vijaykumar, V., Cases and Materials on Constitutional
Law-I: Centre State Relations and Federalism, 1998, National Law School Institute
University, Bangalore.

 Jain, M.P., ‘Indian Constitutional Law’, 5th edition, 2003, Wadhwa & Company, Nagpur.

 Pandey, J.N, “Constitutional Law of India”, 44th ed., 2007, Central Law Agency,
Allahabad.

Statutes

1. Cable Television Networking (Regulation) Act, 1995

2. The Cable Television Network Rules, 1994

3. Indian Telegraph Act, 1885

4. The Constitution of India, 1950.

Written Submission on Behalf of the Petitioner 5

 Websites

1. www.manupatra.com

2. www.indiankanoon.com

Written Submission on Behalf of the Petitioner 6

 STATEMENT OF JURISDICTION

The Petitioners humbly submit before the Hon’ble Supreme Court of India, this memorandum of
the present case in the form of a writ petition under article 32 of the constitution of India. It
contains the grounds on which the arguments are based.

Written Submission on Behalf of the Petitioner 7

 STATEMENT OF FACTS

1. ‘Ace’ Television Private Limited and ‘Leading’ Television Private Limited are the two
production houses of the leading news channels ‘ATV’ and ‘LTV’ respectively.

2. During the recent terror attacks in Mumbai, both the channels did an extensive Live Coverage
of the entire terror attacks which included the disclosure of vital information of the operations
conducted by the Indian Armed Forces.

3. This disclosure of information went in contravention to the instructions issued by the

government of India, whereby the Live Media Coverage of the attack was banned.

4. Subsequent to the attack, Cable Television Act was passed which was applied retrospectively,
in which Section (7) provided for the censorship and the restriction of any information displayed
in Public Interest and Security of State and Section (11) empowers Government of India to
cancel the License of Broadcast and to impose fine if any order issued under Section (7) is
violated.

5.Government of India through its special secretary served a show cause notice to the news
channels that their Broadcast Licences have been cancelled forthwith as they have leaked vital
information of the operation, which was against the security of the state.

6. The Channels challenge the validity of the Act as it violated the provisions of the Constitution,
furthermore they challenged the show cause notice as well. The writ has been filed before the
Hon’ble Supreme Court of India.

Written Submission on Behalf of the Petitioner 8

 ISSUES RAISED

1. Whether the introduced Cable Television Act valid or not?

2. Whether the issued Show Cause notice holds some meanings or not?

3. Whether the cancellation of the licenses and banning the Live Media Coverage of
Terrorist Attacks is a legally valid action or not?

Written Submission on Behalf of the Petitioner 9

 SUMMARY OF ARGUMENTS

1. Whether the cable television act is valid or not?

1.1 Whether fundamental rights, Article 19(1) (a) are violated or not?

1.2 Do Courts have the power to declare an Act of the Legislature to be invalid?

1.2.1 Invalidity of Cable Television Act

1.2.2 How and when should the power of the Court to declare the Statute

unconstitutional be excersiced?

1.2.3 Citizen’s Rights to Information

1.2.4 Restriction on freedom of speech-Art 19(2) to (6)

2. Whether the show cause notice is valid or not? 

2.1 Is the show cause notice applied in a right way?  

3. Whether the cancellation of the licenses and banning the Live Media Coverage of
Terrorist Attacks is a legally valid action or not?

3.1 The test of rational nexus is not proved.

3.2 Legal validity of Ban imposed by the government on Live Media Coverage.

3.3 Legal Validity of section 7 in Cable Television (Networks) Regulation Act, 1995

Written Submission on Behalf of the Petitioner 10

 ARGUMENTS ADVANCED

1. Whether the Cable Television Act is valid or not?

1.1 Whether fundamental rights, Article 19(1) (a) are violated or not?

A law made by the Parliament can be struck down by courts on two grounds and two grounds
alone: (1) lack of legislative competence; and (2) violation of fundamental rights guaranteed
under Part-III of the Constitution or any other constitutional provision.

Article 19 - Protection of certain rights regarding freedom of speech, etc.

(1) All citizens shall have the right-

(a) To freedom of speech and expression2;

Freedom of the press3 is not expressly mentioned in article 194 but has been held to flow from
the general freedom of speech5 and expression guaranteed to all citizens. As judicially construed,
this freedom now includes not merely the freedom to write and publish what the writer considers
proper, but also the freedom to carry on the business so that information may be disseminated
and excessive and prohibitive burden restricting circulation may be avoided.

A citizen has a right to know about the activities of the State, the instrumentalities, the
departments and the agencies of the State. The privilege of secrecy which existed in old times,
(namely) that the State is not bound to disclose the facts to the citizens or the State cannot be
compelled by the citizens to disclose the facts, does not survive now to a great extent. Freedom
of speech is based on the foundation of freedom of right to know. The State can impose and

2
L.I.C. v. Manubhai Shah, AIR 1993 SC 171

3
Express Newspapers v. Union of India, AIR 1986 SC 872: (1986) 1 SCC 133.

4
State of Himachal Pradesh and another v. Kailash Chand Mahajan and others 

5
Prabha v. Union of India, AIR 1982 SC 6: (1982) 1 SCC 1: 1982 SCC (Cri) 41.

Written Submission on Behalf of the Petitioner 11

should impose reasonable restrictions in the rights where it affects the national security or any
other matter affecting the nation’s integrity. But the right is limited and particularly in the matter
of sanitation and other allied matters, every citizen has a right to know how the State is
functioning and why the State is withholding such information in such matters;

In this case, it is a clearly known fact that The Ministry of Home, Government of India through
its special secretary has cancelled the license of the petitioner’s channel ‘ATV’. At the first look
itself we can identify the unconstitutional implementation of the law by the government. It is
know fact that in a democratic state like India it is necessary to have a strong and unbiased press
to support the citizens of the country and critically analyze the policies taken by the government.
The terror attacks in Mumbai were a black chapter in the history of India. It is also a national
shame that our defence and police force couldn’t stop anti-national forces from entering our
territory and unleashing attacks against citizens of our country.

In the case of Ajay Goswami v. Union of India (UOI) and Ors6 

Petitioner filed present petition requesting the Court to direct the authorities to strike a balance
between fundamental right of freedom of speech and expression enjoyed by press and duty of
government to protect minors from abuse, exploitation and harmful effects of such expression.
Pictures which was in dispute had been published by Respondents with the intent to inform
readers of the current entertainment news from around the world and India. Any steps to ban
publishing of certain news pieces or pictures would fetter the independence of free press which
is one of the hallmarks of our democratic setup. Petitioner failed to establish the need and
requirement to curtail the freedom of speech and expression. Times of India and Hindustan
Times are leading newspapers in Delhi having substantial subscribers from all sections. They
have an internal regulatory system to ensure no objectionable photographs or a matter gets
published. They were conscious of their responsibility towards children but at the same time it
would be inappropriate to deprive the adult population of the entertainment which was well
within the acceptable levels of decency on the ground that it may not be appropriate for the
children. The Petition was dismissed.

6
(2007) 1 SCC 143

Written Submission on Behalf of the Petitioner 12

In the case of Government of Andhra Pradesh and Ors. Vs.Smt. P. Laxmi Devi7,

Writ Petition was filed in praying for a declaration that Section 47A, Indian Stamp Act, 1899 as
amended by A.P. Act 8 of 1998, which requires a party to deposit 50 per cent deficit stamp duty
as a condition precedent for a reference to Collector under Section 47A, is unconstitutional.
Hence, in the present appeal respondent contended that the provision contained in the proviso to
Section 47A is arbitrary and unreasonable violating the fundamental rights guaranteed in Articles
14 and 19(1)(g).

In the case of Arun Kumar and Ors.vs. Union of India (UOI) and Ors 8,

A question of formulating contributory scheme for ex-servicemen was involved who were
claiming full medical facility. The Government of India had constituted a Committee headed by
Hon'ble Mr. Justice S. Mohan (Retd.) to look into the Report of the Pay Revision Committee for
Public Sector Executives. The Committee considered various issues including issues as to pay
scales, perquisites etc., of employees of Public Sector Undertakings. The various
recommendations made by the Committee and submitted that different treatment shown by the
authorities to employees of Government and employees of Public Sector Undertakings is
arbitrary, discriminatory and unreasonable being violative of Articles 14, 16 and 19 of the
Constitution. Therefore, submitted that the benefits extended to Government employees ought to
have been extended to employees of Public Sector Undertakings as well.

In the case of Confederation of Ex-Servicemen Associations & Ors. vs Union Of India & Ors9,

The grievance of the petitioner is that though several attempts had been made by the
Associations, the Government of India had never taken the matter seriously as regards the
medical services to be provided to ex-servicemen. Though they have a valuable right of full and
free medicare, which is a fundamental right, no concrete and effective steps had been taken by
the respondents which constrained them to approach this Court by invoking Article 32 of the

7
(2008) 4 SCC 720

8
(2006) 205 CTR (SC) 193

9
(2006) 8 SCC 399

Written Submission on Behalf of the Petitioner 13

Constitution. According to them, keeping in view the services rendered by ex-defence personnel
and the diseases sustained by them, they are entitled to necessary medical facilities. It was also
their case that free and full medical facilities is part and parcel of their fundamental rights
guaranteed by Part III of the Constitution as also covered by Directive Principles in Part IV of
the Constitution. In several cases, this Court has held that such facilities must be provided to
Government employees, past and present. According to the petitioner, such facilities are
provided to Government employees and also to ex-servicemen. Refusal to extend similar
medical benefits to
Ex-defence personnel are thus arbitrary, discriminatory, unreasonable and violative of Articles
14, 16, 19 and 21 of the Constitution.

If a law abrogates or abridges a fundamental right (by amendment or by insertion in the 9 th

Schedule), the Court may exercise its judicial review power and examine it on the touchstone of
the basic structure doctrine as reflected in Article 21 read with Articles 14 and 9 by application
of the "rights" and "essence of the right" tests10.

Therefore, the crucial question must always be: Are the restrictions imposed on the exercise of
the rights under Arts. 19(1) (a) and 19(1) (g) reasonable in view of all the surrounding
circumstances? In other words are the restrictions reasonably necessary in the interest of public
order under Article 19(2) or in the interest of the general public under Article 19(6)?

The Indian Constitution under Article 19(1) (a) guarantees every citizen the right to freedom of
speech and expression and petitioner being a leading TV Channel has the right to express its
views and various news of National and International relevance in its edition and any kind of
unreasonable restriction on this right will amount to the violation of the right guaranteed by the
Indian Constitution11.

Here by imposing the Cable Television Act, government has shown an unconstitutional method
of controlling the media. Under article 19 of Indian Constitution it is promised that the right to
speech and expression is guaranteed to every citizen of India.

10
S.S.K. Niyami v. Union of India, AIR 1990 SC 2128: (1990) 4 SCC 516.

11
Director General, Directorate General of Doordarshan and Ors. v. Anand Patwardhan and Anr. (C.A. No. 613 of
2005)

Written Submission on Behalf of the Petitioner 14

1.2 Do Courts have the power to declare an Act of the Legislature to be invalid?

1.2.1 Invalidity of Cable Television Act

The theoretical reasoning for this view can be derived from the theory in jurisprudence of the
eminent jurist Kelsen (The Pure Theory of Law). According to Kelsen, in every country there is
a hierarchy of legal norms, headed by what he calls as the `Grundnorm' 12 (The Basic Norm). If a
legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the
former will prevail.

In India the Grundnorm is the Indian Constitution, and the hierarchy is as follows:

(i) The Constitution of India;

(ii) Statutory law, which may be either law made by Parliament or by the State Legislature;

(iii) Delegated legislation, which may be in the form of Rules made under the Statute,
Regulations made under the Statute, etc;

(iv) Purely executive orders not made under any Statute.

“The gunmen were able to trawl the internet for information after cable television feeds to the
two luxury hotels and office block were cut by the authorities.

The men looked beyond the instant updates of the Indian media to find worldwide reaction to the
events in Mumbai, and to keep abreast of the movements of the soldiers sent to stop them.”13

- ‘How Gadgets Helped Mumbai Attackers’

By Noah Shachtman, Dangerroom, Web Magazine

12
Kelsen's `The General Theory of Law and State'

13
http://blog.wired.com/defense/2008/12/the-gagdets-of.html

Date: 24/01/2009 Time: 11:04 hrs

Written Submission on Behalf of the Petitioner 15

Some of the facts which went unconsidered or left out by the government:

1. Channel ‘ATV’ was just doing their duty to show true visuals of the events to the general
public as it was a matter concerning general public also.

2. This incident is very different from ordinary wartime reporting as it was an attack on the
public and the public needs to be alerted.

3. Channel ‘ATV’ was just showcasing how weakness and inability of our defence and
intelligent systems.

4. From the News extract given above (p6), it can be concluded that terrorist were able to
trawl information even after the cable feeds were cut off. It wasn’t just two channels that
are accused to have leaked the vital information regarding national security.

5. The government didn’t wait for the channel’s reply to the show cause notice. The
government straight away cancels the broadcasting licenses of the channel ‘ATV’
concerned. The idea of natural justice is not followed.

“Art 13(2)14 of the Constitution ensures that instruments emanating from any source of law-
permanent or temporary, legislative or judicial or any other source –will pay honour to the
constitutional provisions relating to fundamental rights.”15

The second clause relates to post-constitution laws and prohibits the state from making a law,
which either takes away totally or abrogates in part, a fundamental right. The constitution of
India empowers the Supreme Court under art 32 to protect the fundamental rights against
infringement by the state.

The Constitution of India provides wide Scope and application of judicial review of statutes with
relevant considerations. If a law (norm) in a higher layer in the above hierarchy clashes with a
law in a lower layer, the former will prevail. A constitutional provision will prevail over all other

14
13. Laws inconsistent with or in derogation of the fundamental rights.-
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of the contravention, be void.

15
Ranbir Singh, A Lakshminath, LexisNexis Student Series Constitutional Law, New Delhi, LexisNexis Butterworths,
2006, p195

Written Submission on Behalf of the Petitioner 16

laws, whether in a statute or in delegated legislation or in an executive order. Courts have the
power to declare an Act of the Legislature to be invalid 16. Only one ground for declaring an Act
of the legislature (or a provision in the Act) to be invalid is if it clearly violates some provision
of the Constitution in so evident a manner as to leave no manner of doubt17.

1.2.2 How and when should the power of the Court to declare the Statute unconstitutional be
exercised?

This is a very important question because invalidating an Act of the Legislature is a grave step
and should never be lightly taken. As observed by the American Jurist Alexander Bickel
"judicial review is a counter majoritarian force in our system, since when the Supreme Court
declares unconstitutional a legislative Act or the act of an elected executive, it thus thwarts the
will of the representatives of the people; it exercises control, not on behalf of the prevailing
majority, but against it."18

Judicial review is strictly judicial and thus quite different from the policy-making functions of
the executive and legislative branches. Full and free play must be permitted to that wide margin
of considerations which address themselves only to the practical judgment of a legislative body.
The legislative process, after all, is a major ingredient of freedom under government19.

The legislation could be held unconstitutional only when those who have the right to make laws
have not merely made a mistake (in the sense of apparently breaching a constitutional provision)
but have made a very clear one, so clear that it is not open to rational question.

“Constitution is not a tightly drawn legal document like a title deed to be technically construed;
it is rather a matter of great outlines broadly drawn for an unknowable future.”20

16
Marbury v. Madison 5 U.S. (1Cranch) 137 (1803)

17
Government of Andhra Pradesh and Ors. Vs. Smt. P. Laxmi Devi

18
A. Bickel, `The Least Dangerous Branch'

19
B.R. Enterprises v. State of U.P. and Ors

20
Prof James Bradley Thayer, Professor of Law of Harvard University, 'The Origin and Scope of the American
Doctrine of Constitutional Law', The Harvard Law Review ,1893

Written Submission on Behalf of the Petitioner 17

In short, a Constitution offers a wide range for legislative discretion and choice. The judicial
veto is to be exercised only in cases that leave no room for reasonable doubt. The Court can
declare a statute to be unconstitutional only when there can be no manner of doubt that it is
flagrantly unconstitutional, and there is no way of avoiding such decision.

In Maneka Gandhi v. Union of India, it was observed that

It is the solemn duty of the Courts to uphold the civil rights and liberties of the citizens against
executive or legislative invasion, and the Court cannot sit quiet in this situation, but must play an
activist role in upholding civil liberties and the fundamental rights in Part III. So we can
conclude that Cable Television Act passed violates the provisions of the constitution and can be
declared void by the court of law.

1.2.3 Citizen’s Rights to Information

As in the case of Dinesh Trivedi, M.P. and Ors.Vs Union of India (UOI) and Ors (1997) 4 SCC
306, it demanded the publication of Vohra committee report on criminalization of politics and as
well as supporting material placed before it. The report was laid before the parliament and held;
that in a democracy citizens have right to know about the affairs of the Government which,
having been elected by them, seeks to formulate sound policies21 of governance aimed at their
welfare.

1.2.4 Restriction on freedom of speech-Art 19(2) to (6)

As per constitution of India the guarantee of the rights is restricted by the constitution itself by
conferring upon the state the power imposed by law, reasonable restrictions as may be necessary
in the larger interest of community. The restrictions on freedom are provided in art 19(2) to (6)
of the Constitution. The restrictions should be reasonable and cannot be arbitrary.

The clause ‘The security of the state’ mentioned in art 19(2) in constitution is only one which
tends to support the notion from the government’s side. Government accuses both the channels
to have leaked the vital information to terrorist which was against the security of the state. But
the fact is that both the channels never had an intention or will to act against the national interest,

21
The State of U.P. Vs. Raj Narain and Ors.

Written Submission on Behalf of the Petitioner 18

but to support a larger cause of making the public aware and government understand their
failures.

The Government of India in order to save their political image had diverted the public attention
by making a general opinion that it was due to the live coverage of the entire terrorist
organisations which leaked vital information to terrorist which was against the security of the
state.

The News Broadcasters Association, which is headed by the retired Chief Justice of India J S
Verma, has now drafted guidelines for self regulation.

As per the guidelines:

1. The channels can have no live phone interviews with the terrorists

2. Or show any live interviews with the victims or security personnel, while the security
operation is still going on

3. Also, the channels cannot show any footage that hinders the operation by security agencies in
any way

4. No mention should be made of the identity, number and status of hostages, in an ongoing
hostage situation

5. Any file footage that is aired must have a date and time clearly indicating when the footage
was shot
The broadcasters have also agreed on not showing blood and gory images constantly being
repeated on TV channels. These guidelines are in sync with anti-terror media protocol which is
already in place in several countries like the US, UK, Canada and Russia22.

22
http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20080076991

Date: 24/01/2009 Time: 10:56 hrs

Written Submission on Behalf of the Petitioner 19

2. Whether the show cause notice is valid or not?  

2.1 Is the show cause notice applied in a right way?  

         A show cause notice is court order that requires a party to appear before the court and
explain why a certain course of action should not be taken against it. If the party cannot convince
the court or fails to appear, then course of action is taken.

  As in the instant case the show cause notice1 that was issued by the Government of India
through its special Secretary Served to the petitioner that their Broadcast Licenses have been
cancelled forthwith as they have leaked vital information to terrorist which was against the
security of the state. But in this case the petitioner, they were not allowed to appear the court to
explain about the information leaked and why the license should not be cancelled.

So the notice is wrong and cannot be implemented as it does not hear the petitioners point on
how the action should not be taken against them. In the same way the cancellation of the license

Written Submission on Behalf of the Petitioner 20

is also an inappropriate action because the petitioners have not been allowed to prove there point
on why should there license not be cancelled so in continuation to the show cause notice, the
canceling the license cannot be done against the petitioner.

As the show cause notice is not valid so the broadcasting license cannot be cancelled as in the
case of D. Dwarkaknantha Reddy Vs.Chaitanya Bharati Educational Society and Ors2.it was held
by Hon’ble Supreme Court that no opportunity of being heard was given before giving the show
cause notice as it is happening in the instant case so an analogy can be drawn between the above
case and the instant case.

So it can be inferred from the above case that the show cause notice has become void as it does
not takes the petitioners point into consideration on proving their point on why should their
license should not be cancelled.

The show cause notice is used wrongely in the present case so the license cannot be cancelled.  
 
  

3. Whether the cancellation of license and ban on broadcast by The Ministry of

Home, Government of India valid or not?

3.1 The test of Rational Nexus is not proved.

The case has no element of rational nexus provided in it. This is so for the simple reason that
there is no valid, logical, or a meaningful link or connection provided in the action performed
and then the ‘punishment’ given. As the intention of the legislature enacted is to stop the telecast
of such cases, therefore this retrospective ban does not prove to be a point of rational nexus.
Furthermore the cancellation of the license is not a fair decision on their part and was not an
appropriate act. As the Live Media Coverage of the attack was already banned, therefore the
cancellation of the licences had proved to be of a much higher degree, unwanted and
unreasonable consequence.

Written Submission on Behalf of the Petitioner 21

In the case of Ajay Goswami vs.UOI and Ors23

Petitioner filed a petition in the court requesting the court to direct authorities to strike a balance
between the fundamental right of freedom of speech and expression enjoyed by press and the
duty of government to protect minors from abuse, exploitation and other harmful effects of such
expression. Held, pictures in dispute had been published by the respondents with a view to
inform the readers of the news from around the world and in India. Any steps to ban the
publishing of certain newspeices or pictures would fetter the independence of free press which is
one of the hallmarks of our democratic set up.24

Furthermore the principle of ‘Ratio Decidendi’ also holds a mention here. The principle of Ratio
Decidendi is a Latin term which means’ the ground or reason of decision’. The rationale for a
decision, i.e., which tells us the legal principle on which a decision is made. In this case the the
rationale involved is not sound enough to cancel away the license.

Where sufficient safeguards in terms of various legislations, norms and rules and regulations are
available to protect society in general and children in particular, any step to ban publishing of
certain news pieces or pictures would fetter independence of free press. 25

In the case of P.Venugopal vs. UOI26

This was basically a case of premature termination. Petitioner, the director of All India Institute
of Medical Sciences (AIIMS) immediately prior to the commencement of the added provisions
and by virtue of the legislative command contained in the added provision was made to demit his
office from the date of commencement of said added provision. This was proved to be case of
clear discrimination.

Held, if a person is appointed for tenure, principle of superannuation does not apply - Once a
person is appointed to a tenure post, his appointment to the said post begins when he joins and it

23
(2007) 1 SCC 143

24

25
Supra pg.

26
(2008)5 SCC 1

Written Submission on Behalf of the Petitioner 22

comes to an end on the completion of tenure unless curtailed on justifiable grounds - Curtailment
of the term of five years can only be made for justifiable reasons and compliance with principles
of natural justice for premature termination of the term.

3.2 Legal validity of Ban imposed by the government on Live Media Coverage.

Both the news channels ‘ATV’ and ‘LTV’ are private companies defined under the section 3 of
the Companies Act, 1956. Both the channels are the Cable Service27 providers who transmit or
re-transmit of any broadcast television signals through cables. In sec 19, 20, 22 of Cable
Television (Networks) Regulation Act, 1995,

28
Sec 19. Power to prohibit transmission of certain programmes in public interest.—Where
[any authorized officer] , thinks it necessary or expedient so to do in the public interest, he
29
may, by order, prohibit any cable operator from transmitting or re-transmitting [any

27
Cable Television (Networks) Regulation Act, 1995 sec 2(b) “cable service" means the transmission by cables of
programmes including re-transmission by cables of any broadcast television signals.
28
Substituted for ‘an officer, not below the rank of a Group `A' officer of the Central Government authorised by the State
Government in this behalf’ by Cable Television Networks (Regulation) Amendment Act, 2000, with effect from 1.9.2000. ‘

29
Substituted for ‘any particular programme if it is’ by Cable Television Networks (Regulation) Amendment Act, 2000, with
effect from 1.9.2000. ‘

Written Submission on Behalf of the Petitioner 23

programme or channel if, it is not in conformity with the prescribed programme code referred
to in section 5and advertisement code referred to in section 6 or if it is] likely to promote, on
grounds of religion, race, language, caste or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic
or regional groups or castes or communities or which is likely to disturb the public tranquility.
30
Sec 20. Power to prohibit operation of cable television network in public interest.— [1]
Where the Central Government thinks it necessary or expedient so to do in public interest, it
may prohibit the operation of any cable television network in such areas as it may, by
notification in the Official Gazette, specify in this behalf.
Sec 22. Power to make rules.—(1) The Central Government may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules
may provide for all or any of the following matters, namely,—
(a) the form of application and the fee payable under sub-section (2) of section 4;
31
[(aa) the manner of publicising the subscription rates and the periodical intervals at which
such subscriptions are payable under sub-section (7) of section 4A;

(aaa) the form and manner of submitting report under sub-section (9) of section 4A and the
interval at which such report shall be submitted periodically under that sub-section;]

(b) the programme code under section 5;

(c) the advertisement code under section 6;

(d) the form of register to be maintained by a cable operator under section 7;

(e) any other matter which is required to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses
agree in making any modification in the rule or both Houses agree that the rule should not be
30
Inserted by Cable Television Networks (Regulation) Amendment Act, 2000, with effect from 1.9.2000.

31
Inserted by Cable Television Networks (Regulation) Amendment Act, 2002, with effect from 31.12.2002.

Written Submission on Behalf of the Petitioner 24

made, the rule shall thereafter have effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule.

Certain steps taken by the Government were completely against the provisions of the Cable
Television (Networks) Regulation Act, 1995.
1. Government puts a ban on Live Coverage of Terrorist Attacks. Only an authorized officer
has the authority to ban an agency from broadcasting certain programme. In the present
case the officer authorized is the special secretary to the ministry of home. As per sec 19
of Cable Television (Networks) Regulation Act, 1995 goes this Central Government
officer who is not below group ‘A’ rank can only be authorised by State Government
only. The conflict arises regarding the issuing authority which makes the Ban void. In the
present case it can noticed that ban on the Live Media Coverage of the attack were issued
by Government of India. It is clear that this ban has no legal validity as it can only issued
by State Governments in the Union of India.

2. Acc. to sec 19 Cable Television (Networks) Regulation Act, 1995, to Ban any Cable
Operator from transmission of certain programme, the programme needs to come within
the conformity of the prescribed programme code referred to in section 5 and
advertisement code referred to in section 6 or if it is likely to promote, on grounds of
religion, race, language, caste or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will between different religious, racial,
linguistic or regional groups or castes or communities or which is likely to disturb the
public tranquility.

Programme code under sec 5 of Cable Television (Networks) Regulation Act, 1995.
(1) No programme should be carried in the cable service which-
(a) offends against good taste or decency ;
(b) contains criticism of friendly countries ;
(c) contains attack on religions or communities or visuals or words contemptuous of religious

Written Submission on Behalf of the Petitioner 25

groups or which promote communal attitudes ;
(d) contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half
truths;
(e) is likely to encourage or incite violence or contains anything against maintenance of law and
order or which promote anti-national attitudes.
(f) Contains anything amounting to contempt of court.
(g) contains aspersions against the integrity of the President and Judiciary;
(h) contains anything affecting the integrity of the Nation;
(i) criticises, maligns or slanders any individual in person or certain groups, segments of social,
public and moral life of the country;
(j)encourages superstition or blind belief;
(k)denigrates women through the depiction in any manner of the figure of a woman, her form
or body or any part thereof in such a way as to have the effect of being indecent, or derogatory
to women, or is likely to deprave, corrupt or injure the public morality or morals ;
(l)denigrates children;
(m)contains visuals or words which reflect a slandering, ironical and snobbish attitude in the
portrayal of certain ethnic, linguistic and regional groups;
(n) contravenes the provisions of the cinematograph Act, 1952.

As the live broadcast of terror attacks doesn’t come under any of these categories of programme
code, again it can be proven that ban applied on the live coverage of the Terror Attacks does not
exist and should be terminated.

Written Submission on Behalf of the Petitioner 26

3.3 Legal Validity of section 7 in Cable Television (Networks) Regulation Act,

1995

The Indian Telegraph Act 1885 is an act to amend the laws relating to telegraphs in India.
Under sec 3(1) it defines telegraph as any appliance, instrument, material or apparatus used
or capable of use for transmission or reception of signs, signals, writing, images and sounds
or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio
waves or Hertzian waves, galvanic, electric or magnetic means.
Critically assessing the definition it is clear that live cable television broadcasting comes
under this definition of telegraph. Therefore live broadcasting of terror events comes under
the ambit of The Indian Telegraph Act, 1885.
Part 2 of the Indian Telegraph Act, 1885 deals with the regulation of powers and privileges
of the Central Government of India. Sec 7(1) The Indian Telegraph Act, 1885 which deals
with the power of Central Government to make laws and sec 7(2) 32 to make rules consistent

32
Bharat Sanchar Nigam Ltd. and Anr.Vs. BPL Mobile Cellular Ltd. and Ors 2008(8)SCALE106

Written Submission on Behalf of the Petitioner 27

 with the Act for the conduct of all or any telegraphs, established, maintained or worked by
the Government or by persons licensed under this Act. Clause (e) thereof provides that the
rules may also be framed in regard to the conditions and restrictions, subject to which any
telegraph line, appliance or apparatus for telegraphic communication shall be established,
maintained, worked, repaired, transferred, shifted, withdrawn or disconnected.
By a simple examination it is clear that it doesn’t provides with a single provision to make
laws for banning a particular broadcast or cancellation of license due to the broadcast of Live
Terror attacks.
It can be concluded that the whole section 7 in Cable Television (Networks) Regulation Act,
1995 can be declared invalid. In affect the ban imposed and cancellation of licenses can be
revoked.

PRAYER

In the light of the arguments advanced, authorities cited and facts presented, this Hon’ble Court
may be pleased to adjudge and declare that:

(1) The present matter is inadmissible since it is a wrong implication of the Cable Television Act
and doesn’t hold any meanings in cognizance of the ‘Right to Freedom’ of Press.

(2) Declare that the cancellation of licences of the Petitioners as void for the simple reason of it
being in contradiction with the principle of rational nexus.

(3) The show cause notice which is issued has no basis for the reason that it supports the law to
take an action without giving the other party a chance of being heard.

Written Submission on Behalf of the Petitioner 28

 And For This The Petitioner Shall Duty Bound Ever Pray.

NOTES

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Written Submission on Behalf of the Petitioner 30