TEAM CODE- P-19

IN
THE SUPREME COURT OF INDIANA
UNDER ARTICLE 32 OF CONSTITUTION OF INDIANA

CITIZEN UNION FOR DEMOCRATIC RIGHTS & ORS

(PETITIONER)
V.

UNION OF INDIANA
(RESPONDENT )

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

MEMORIAL FILED ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

Table of Contents.......................................................................................................................2
List of Abbreviations..................................................................................................................3
Index Of Authorities...................................................................................................................4
Cases......................................................................................................................................4
Other Authorities....................................................................................................................5
Statement of Jurisdiction............................................................................................................6
Statement of Facts......................................................................................................................7
Arguments Presented..................................................................................................................8
Summary of Pleadings...............................................................................................................9
arguments advanced.................................................................................................................11
1) Whether the petitioner has locus standi in the present matter?........................................11
2) Whether banning the documentary is the violation of Fundamental right of Freedom of
Speech and expression?........................................................................................................13
3) Whether banning the documentary is the violation of the fundamental right of freedom
of press?...............................................................................................................................15
4) Whether banning the documentary a reasonable restriction?..........................................17
Prayer.......................................................................................................................................21

-Memorial for Petitioner-

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LIST OF ABBREVIATIONS
1. Art Article
2. Honble Honourable
3. & - and
4. Cal Calcutta
5. Mad Madras
6. All Allahabad
7. MP- Madhya Pradesh
8. AIR All India Reporters
9. SCC Supreme Court Cases
10. Edn Edition
11. Ltd Limited
12. Ors others
13. P&H- Punjab and Haryana
14. UP Uttar Pradesh
15. Bom Bombay
16. SCR Supreme Case Reporters
17. Ch chapter
18. Para paragraph

INDEX OF AUTHORITIES

Cases
Aveek Sarkar v State of West Bengal 2014 (4) SCC 257..........................................................19
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Binod Rao v MR Masani (1976) 78 BomLR 125.....................................................................17
Charles Bradlaugh v R (LR) 3 QBD 607 (CA).......................................................................19
Director General Directorate General of Doordarshan v Anand Patwardhan (2006) 8 SCC
433..................................................................................................................................17, 19
Director of film festival v Gaurav Ashwin Jain (2007) 4 SCC 737.........................................14
Dr Ram Manohar Lohia v State of Bihar & Ors (1966) 1 SCR 709.......................................18
Express Newspapers Limited v Union of India AIR 1958 SC 578..........................................18
Fertilizer Corporation Kamgar v Union of India AIR 1981 SC 149.......................................11
Francis Coralie v Union Territory of Delhi AIR 1981 SC 746...............................................12
Indian Express Newspapers(Bombay) P ltd v UOI AIR 1986 SC 515...................................16
Life Insurance Corporation of India v Prof Manubhai D Shah (1992) 3 SCC 637.................16
Maneka Gandhi v UOI (1978) 1 SCC 248..........................................................................13,14
MC Mehta v Union of India & Others (1988) 1 SCC 471.......................................................12
Ministry of Information v Cricket Association (1995) 2 SCC 161...........................................15
MRF Ltd v Inspector Kerala government AIR 1999 SC 188...................................................17
Mumbai Kamagar Sabha v Abdul Thai AIR 1976 SC 1455....................................................11
Naz Foundation v Govt of NCT of Delhi WP(C) No 7455/2001 (2 July 2009).......................12
Romesh Thapar v State of Madras AIR 1950 SC 124.............................................................18
S Rangarajan v P Jagjivan Ram and ors (1989) 2 SCC 574.............................................15, 16
Sakal papers v UOI AIR 1962 SC 305....................................................................................15
SF Gupta and others v Union of India AIR 1982 SC 149........................................................11
Shreya Singhal v UOI (2015) 5 SCC 1....................................................................................19
State of Madras v VG Row AIR 1952 SC 196.........................................................................17
State of WB v Subodh Gopal Bose AIR 1954 SC 95................................................................13
Sunil Batra v Delhi Administration (1978) 4 SCC 494............................................................12
Virendra v State of Punjab AIR 1957 SC 896..........................................................................17

Other Authorities
Public Interest Litigation <http://www.legalserviceindia.com/article/l273-Public-InterestLitigation.html> accessed on 17 September 2015...............................................................13

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Aharon Barak, The Role of a Supreme Court in a Democracy (116 Harvard Law Review,
2002) 107.............................................................................................................................12
Express Newspapers Limited v Union of India AIR 1958 SC 578..........................................18
Janis M Kay R and Bradley A, European Human Rights Law (Oxford: Clarendon Press 1995)
157........................................................................................................................................17
MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis 2014) 1020...................................14

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STATEMENT OF JURISDICTION

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

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENT IN
THE PRESENT CASE.

-Memorial for Petitioner-

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

-Memorial for Petitioner-

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ARGUMENTS PRESENTED

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

-Memorial for Petitioner-

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

2) Whether banning the documentary is the violation of Fundamental right of Freedom

of Speech and expression?
In the present case also the right of the IBC (Indiana Broadcasting Corporation) to make and
exhibit the documentary is a part of its fundamental right of freedom of speech and
expression and banning the documentary will amount to the violation of this right because
the producer of a film can claim protection of Art. 19(1) a. A right of a film maker to make
and exhibit his film is a part of his fundamental right of freedom of speech and expression.
The petitioner contends that Govt. of Indiana being a State as envisaged under Article 12 of the
Constitution, it must act within the structure of the Indiana Constitution and its actions must be informed

with fairness, justice, non-arbitrariness and the principles of natural justice. The petitioner contends
that govt. has deprived the petitioner of his freedom of expression guaranteed by Article 19(1)(a) of
the Constitution of India. The act of government by banning the petitioners film also denies to the
Indian citizens their right to be informed of and enlightened about important developments relating
to the case which has affected the public and democratic character of the Indian State.
3) Whether banning the documentary is the violation of the fundamental right of freedom of
press?
In Indiana freedom of press is implied from the freedom of speech and expression guaranteed by
Art. 19(1)(a). There is no specific provision ensuring freedom of press as such. The freedom of
press is regarded as a species of which freedom of expression is a genus.
It is now well settled by series of judgments of the Supreme Court that freedom of speech and
expression includes the right to propagate ones views through the print media or through any other
communication channel e.g. radio and T.V.
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Court have power to invalidate any administrative action which violates this right. In the present
case the action of government of banning the documentary was the violation of freedom of press.
Prohibiting from publishing its own views on a burning topic of the day constitute an encroachment
on the freedom of speech and expression.

4) Whether banning the documentary is a reasonable restriction?

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

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ARGUMENTS ADVANCED

1) Whether the petitioner has locus standi in the present matter?

The petitioner humbly submits that they have locus standi in the present matter. The PILs
filed by the petitioner for the violation of Fundamental Rights of Freedom of Speech and
expression and Freedom of Press which are recognized under Article 19 of Constitution of
Indiana. The seeds of the concept of public interest litigation were initially sown in India by
Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai 1. Krishna lyer J.,
enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation
Kamgar vs. Union of India2. Justice Krishna lyer in Fertilizer Corporation Kamgar Union vs.
Union of India, (1981) enumerated the following reasons for liberalization of the rule of
Locus Standi
1. Exercise of State power to eradicate corruption may result in unrelated interference with
individuals rights.
2. Social justice wants liberal judicial review administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative action.
4. Activism is essential for participative public justice.
Therefore, a public minded citizen must be given an opportunity to move the court in the
interests of the public.
The ideal of Public Interest Litigation was blossomed in S.P. Gupta and others vs. Union of
India3, Bhagwati C.J. (as he then was) was even more explicit: Where a legal wrong or a
legal injury is caused to a person or to a determinate class of persons and such a person
or determinate class of persons is by reason of poverty, helplessness or disability or socially
or economically disadvantaged position, unable to approach the court for relief, any member
of the public can maintain an application for appropriate direction
1 Mumbai Kamagar Sabha v Abdul Thai AIR 1976 SC 1455.
2 Fertilizer Corporation Kamgar v Union of India AIR 1981 SC 149.
3 SP Gupta and others v Union of India AIR 1982 SC 149.
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The court justified such extension of standing in order to enforce rule of law and provide
justice to disadvantaged sections of society4.Furthermore, the Supreme Court observed that
the term appropriate proceedings in Art.32 of the Constitution does not refer to the form
but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a FR,
any form will do. This interpretation allowed the Court to develop epistolary jurisdiction by
which even letters or telegrams were accepted as writ petitions.5
In M.C. Mehta v. Union of India & Others6, the nuisance caused by the pollution of the river
Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect and
it would not be reasonable to expect any particular person to take proceedings to stop it as
distinct from the community at large. The petition has been entertained as a Public Interest
Litigation. On the facts and in the circumstances of the case, the petitioner is entitled to move
the Supreme Court in order to enforce the statutory provisions which impose duties on the
municipal authorities and the Boards constituted under the Water (Prevention and Control of
Pollution) Act, 1974. In Naz Foundation v. Govt. of NCT of Delhi7, this case was filed to
repeal Section 377 of the Indian penal Code. It was led by the Naz Foundation (India) Trust, a
non-governmental organization, which filed a lawsuit in the Delhi High Court in 2001,
seeking legalisation of homosexual intercourse between consenting adults In 2003, the Delhi
High Court refused to consider a petition regarding the legality of the law, saying that the
petitioners had no locus standi in the matter. Naz Foundation appealed to the Supreme Court
of India against the decision of the High Court to dismiss the petition on technical grounds.
The Supreme Court decided that Naz Foundation had the standing to file a public interest
lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the
4 Aharon Barak, The Role of a Supreme Court in a Democracy (116 Harvard Law Review,
2002) 107.
5 Sunil Batra v Delhi Administration (1978) 4 SCC 494; Francis Coralie v Union Territory
of Delhi AIR 1981 SC 746.
6 MC Mehta v Union of India & Others (1988) 1 SCC 471.
7 Naz Foundation v Govt of NCT of Delhi WP(C) No 7455/2001 (2 July 2009).
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merits. The Court located the rights to dignity and privacy within the right to life and liberty
guaranteed by Article 21 of the Constitution, and held that criminalization of consensual gay
sex violated these rights.
In order to ensure that FRs did not remain empty declarations, the founding fathers made
various provisions in the Constitution to establish an independent judiciary. Provisions related
to FRs, DPs and independent judiciary together provided a firm constitutional foundation to
the evolution of PIL in India. The founding fathers envisaged the judiciary as a bastion of
rights and justice. An independent judiciary armed with the power of judicial review was the
constitutional device chosen to achieve this objective. The power to enforce the FRs was
conferred on both the Supreme Court and the High Courtsthe courts that have entertained
all the PIL cases.
At present, the court can treat a letter as a writ petition and take action upon it. But, it is not
every letter which may be treated as a writ petition by the court. The court would be justified
in treating the letter as a writ petition only in the following cases

It is only where the letter is addressed by an aggrieved person or

a public spirited individual or
a social action group for enforcement of the constitutional or the legal rights of a
person in custody or of a class or group of persons who by reason of poverty,
disability or socially or economically disadvantaged position find it difficult to
approach the court for redress.8

Therefore for the enforcement of the Fundamental Rights of both the parties, the Petitioner
has locus standi in the present matter. The rights enumerated in Article 19(1) are those great
and basic rights which are recognized as the natural rights inherent in the status of a citizen.9
Since Freedom of Press affects large, massive number of people, a public interest litigation
filed for the violation of this right should stand.

8 Public Interest Litigation <http://www.legalserviceindia.com/article/l273-Public-InterestLitigation.html> accessed on 17 September 2015.

9 State of WB v Subodh Gopal Bose AIR 1954 SC 95.
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2) Whether banning the documentary is the violation of Fundamental right of Freedom

of Speech and expression?
Freedom of speech is the bulwark of democratic process it is the mother of all liberties. In
Maneka Gandhi v UOI10 Bhagwati J. saidDemocracy is essentially based on free debate and open discussion, for that it is the only
corrective of government action in a democratic setup. Every citizen is entitled to participate
in the democratic process and in order to enable him to intelligently exercise his right of
making a choice, free and general discussions of public matters is absolutely essential.
Article 19(1) a of the constitution of Indiana says that- All citizens shall have the right
to freedom of speech and expression.
The freedom of speech under Art. 19(1)(a) includes the right to express ones views and
opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture,
film, movie, etc. It thus includes right to communicate and propagate or publish any opinion.
But this right is subject to reasonable restriction being imposed under Art. 19(2).11
In the case of Director of film festival v. Gaurav Ashwin Jain 12Allahabad HC said thatThe producer of a film can claim protection of Art. 19(1) a. A right of a film maker to make
and exhibit his film is a part of his fundamental right of freedom of speech and expression.
In the present case also the right of the IBC (Indiana Broadcasting Corporation) to make and
exhibit the documentary is a part of its fundamental right of freedom of speech and expression
and banning the documentary will amount to the violation of this right.
The phrase speech and expression used in Art. 19(1) (a) has broad connotation. The right to
paint, or sing or to dance or to write poetry or literature is also covered by Art. 19(1) (a)
because the common basic characteristics of all these activities is freedom of speech and
expression. 13
By the above interpretation of freedom of speech and expression SC has expanded the scope
of Article 19.
10 Maneka Gandhi v UOI (1978) 1 SCC 248.
11 MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis 2014) 1020.
12 Director of film festival v Gaurav Ashwin Jain (2007) 4 SCC 737.
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The decision of government of banning the documentary is arbitrary, unjust and unfair
The petitioner contends that Govt. of Indiana being a State as envisaged under Article 12 of
the Constitution, it must act within the structure of the Indiana Constitution and its actions
must be informed with fairness, justice, non-arbitrariness and the principles of natural justice.
The petitioner contends that govt. has deprived the petitioner of his freedom of expression
guaranteed by Article 19(1) (a) of the Constitution of India. The act of government by
banning the petitioners film also denies to the Indian citizens their right to be informed of
and enlightened about important developments relating to the case which has affected the
public and democratic character of the Indian State. The documentary is the medium to
understand the mind set of criminals. Freedom of speech and expression also includes right of
general public to know by banning the documentary the government is depriving the citizens
to understand the mind-set of criminals. Freedom to air ones views is the life line of any
democratic institution and any attempt to stifle, suffocate or gag this right would sound deathknel to democracy and would help usher in autocracy or dictatorship. Therefore, in any set
up, more so in a democratic set up like ours, dissemination of news and views by popular
consumption is a must and any attempt to deny the same must be frowned upon unless it falls
within the mischief of Article 19(2).
It has been held by the Supreme Court that right of speech and expression includes right to
acquire and import ideas and information about the matters of common interests in the case
of Hamdard Dawakhana vs. Union of India14 and to answer any criticism leveled against
one's views through any media LIC vs. Union of India15. This freedom also includes right to
impart and receive information through telecasting Ministry of Information vs. Cricket
Association16. It is thus quite clear that right to acquire and get information is a fundamental
right under the Indiana Constitution.

13Maneka Gandhi v UOI (1978) 1 SCC 248; Usha Uthup v State of West Bengal AIR 1984
Cal 268.
14 Hamdard Dawakhana v Union of India (1960) 2 SCR 671.
15 LIC v Union of India AIR 1993 SC 171.
16 Ministry of Information v Cricket Association (1995) 2 SCC 161.
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3) Whether banning the documentary is the violation of the fundamental right of

freedom of press?
In Indiana freedom of press is implied from the freedom of speech and expression guaranteed
by Art. 19(1)(a). There is no specific provision ensuring freedom of press as such. The
freedom of press is regarded as a species of which freedom of expression is a genus.17
It is now well settled by series of judgments of the Supreme Court that freedom of speech and
expression includes the right to propagate ones views through the print media or through any
other communication channel e.g. radio and T.V. In S. Rangarajan v. P. Jagjivan Ram and
others18, the Supreme Court observed that the freedom of speech under Article 19(1)(a)
means the right to express ones opinions by words of mouth, writing, printing, picture or in
any other manner. It would thus include the freedom of communication and the right to
propagate or publish opinion. The communication of ideas could be made through any
medium, newspaper, magazine or movie. While dealing with the role of the courts in striking
balance between the interest of freedom of expression and social interest, the Supreme Court
observed
However, there must be a compromise between the interest of freedom of expression and
social interests. Court cannot simply balance the two interests as if they are of equal weight.
Courts commitment to freedom of expression demands that it cannot be suppressed unless
the situations created by allowing the freedom are pressing and the community interest is
endangered. The anticipated danger should not be remote conjectural or far-fetched. It
should have proximate and direct nexus with the expression. The expression of thought
should be intrinsically dangerous to the public interests. It should be inseparably locked up
with the action contemplated like the equivalent of a spark in a powder keg.19 (Para 45)
It is the primary duty of Courts to uphold the said freedom and invalidate all laws and
administrative actions which interfere with the freedom of press contrary to the constitutional
mandate.20

17 Sakal papers v UOI AIR 1962 SC 305.

18 S Rangarajan v P Jagjivan Ram and ors (1989) 2 SCC 574.
19 S Rangarajan v P Jagjivan Ram and ors (1989) 2 SCC 574.
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In Life Insurance Corporation of India v. Prof. Manubhai D. Shah21, SC observed:Freedom of speech and expression is a natural right which a human being acquires on
birth. It is, therefore, a basic human right. The words freedom of speech and expression
has to be broadly construed to include the freedom to circulate ones views by words of mouth
or in writing or through audio-visual instrumentalities. It, therefore, includes the right to
propagate ones views through the print media or through any other communication channel
e.g. the radio and the television. Every citizen of this free country, therefore, has the right to
air his or her views through the printing and/or the electronic media subject of course to
permissible restrictions imposed under Article 19(2) of the Constitution. The print media, the
radio and the tiny screen play the role of public educators, so vital to the growth of a healthy
democracy. Freedom to air ones views is the life line of any democratic institution and any
attempt to stifle, suffocate or gag this right would sound a death-knel to democracy and
would help usher in autocracy or dictatorship. (Para 8)
So from all the above judicial pronouncements it is clear that freedom of press is also a part
of freedom of speech and expression covered under Art. 19(1)(a) of the constitution and
Court have power to invalidate any administrative action which violates this right. In the
present case the action of government of banning the documentary was the violation of
violation of freedom of press. Prohibiting from publishing its own views on a burning topic
of the day constitute an encroachment on the freedom of speech and expression.22
Dissent from the opinion and views held by the majority and criticism and disapproval of
measure initiated by a party in power make for a healthy political climate, and it is not for the
Censor to inject into this the lifelessness of forced conformity. Merely because dissent,
disapproval or criticism is expressed in strong language is no ground for banning its
publication.23 It is clear, on the basis of this and other decisions that, although censorship
cannot per se be said to be unconstitutional, any attempt at imposing prior restraint on
20 Indian Express Newspapers (Bombay) P ltd v UOI AIR 1986 SC 515.
21 Life Insurance Corporation of India v Prof Manubhai D Shah (1992) 3 SCC 637.
22 Virendra v State of Punjab AIR 1957 SC 896.
23 Binod Rao v MR Masani (1976) 78 BomLR 125.
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publication will have to meet the rigorous standards laid down under Articles 19(1)(a) and
19(2).
4) Whether banning the documentary a reasonable restriction?
The petitioner humbly submits that banning the documentary is not a reasonable restriction. It
is difficult to give exact definition of word reasonable. There is no definite test to adjudge
reasonableness of a restriction. Each case is to be judged on its own merits, and no abstract
standard or general pattern of reasonableness is applicable uniformly to all the cases.
Supreme Court in the case of State of Madras v. V.G. Row24 said that- It is important in this
context to bear in mind that the test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no abstract standard or general pattern, of
reasonableness can be laid down and applicable to all the cases.
In the case of Director General, Directorate General of Doordarshan v. Anand Patwardhan 25
Supreme Court, on the decision of government of not showing the documentary related to
babri masjid demolition on doordarshan, said that- film maker has right to convey his
perception on the oppression of women, flawed understanding of manhood and evils of
communal violence throughout the film.
The limitation imposed on the freedom should not be arbitrary or excessive, or beyond what
is required in the situation in the interest of the public.

26

The right to freedom of expression

is probably the most universally accepted human right.27

Any restriction on Article 19(1) (a) can only be valid if three conditions are met: - It is
supported by the authority of law; The law in question is related to one or more of the
permitted heads of restrictions laid down under Article 19(2); and the restriction is
24 State of Madras v VG Row AIR 1952 SC 196.
25 Director General Directorate General of Doordarshan v Anand Patwardhan (2006) 8
SCC 433.
26 MRF Ltd v Inspector Kerala government AIR 1999 SC 188.
27 Janis M Kay R and Bradley A, European Human Rights Law (Oxford: Clarendon Press
1995) 157.
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reasonable. It is also necessary that the procedure and the manner in which the restriction is
imposed be just, fair and reasonable.28
Doctrine of proportionality:
This doctrine means that Court would consider whether the restriction imposed on
fundamental rights are disproportionate to the situation and are not the least restrictive of the
choices. There should be proper balance between the restriction imposed and fundamental
rights.
In the present case government has imposed restriction on the freedom of speech and
expression by banning the documentary. Respondent has contended that the restrictions
imposed are reasonable and are covered under Art. 19(2).

Respondent contended that

restriction comes under- Public order and Decency or morality

Only by analysing both we can say that whether they are reasonable or not.
Public order:
This ground was added by the First Amendment in 1951 and was to overcome the Supreme
Courts ruling in Romesh Thapars29 case which had held that restrictions could not be
imposed on grounds of public order. In Dr. Ram Manohar Lohia v. State of Bihar & Ors30.,
public order was said to have more bearing to community than law and order. The even
tempo of the life of the community constitutes public order, whether community is country as
a whole or a particular locality. Disturbance of public order cannot encompass acts directed
against individual or certain class of individuals, which do not affect public tranquillity. The
degree of disturbance and its impact upon community life is the test to distinguish a breach of
law and order from disturbance of public order. Public order is jeopardized when the act
embraces large sections of the community and incites them to make further breaches of the
law and order thereby subverting public order.

28 Express Newspapers Limited v Union of India AIR 1958 SC 578.

29 Romesh Thapar v State of Madras AIR 1950 SC 124.
30 Dr Ram Manohar Lohia v State of Bihar & Ors (1966) 1 SCR 709.
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The documentary in question has no requirement of such tendency to disrupt public order.
The Court in Shreya Singhal v UOI

31

case also took resort to the clear and present danger

test according to which a State cannot forbid or proscribe advocacy of use of force or of law
violation in presence of constitutional guarantees of free speech and expression, except where
such advocacy is directed to incite or produce imminent lawless action and is likely to incite
or produce such action. This ban on the documentary does not stand good as per this test too
because it allows the State to restrict free speech even when there is no such tendency in the
information to incite or produce imminent lawless action.
Decency or morality:
In Director General, Directorate General of Doordarshan v. Anand Patwardhan 32, the
Supreme Court took note of the law in the United States and said that a material may be
regarded as obscene if the average person applying contemporary community standards
would find that the subject matter taken as a whole appeals to the prurient interest and that
taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific
value. The community standards test was approved and applied by the Apex Court in a recent
judgement given in the case of Aveek Sarkar v. State of West Bengal33. This documentary is
not affecting decency or morality in any way. Showing truth to the people of the country may
not be obscene at all. People have full right to know. Further making a documentary on the
event that has shocked the conscious of the nation is not against morality. There was no
intention to corrupt the public. The scope of the word morality is not very clear under clause
(2) of Article 19. The conception of morality differs from place to place and from time to
time. Birth control and contraceptives were considered immoral at one time and there have
been convictions for publishing literature dealing with contraception.34 And now it is no
offence to discuss such matters, rather it is publicized.
31 Shreya Singhal v UOI (2015) 5 SCC 1.
32 Director General Directorate General of Doordarshan v Anand Patwardhan (2006) 8
SCC 433.
33 Aveek Sarkar v State of West Bengal 2014 (4) SCC 257.
34 Charles Bradlaugh v R (LR) 3 QBD 607 (CA).
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The documentary is not interfering into the right to privacy of the victim:
As from the Para 7 of the facts it is clear that documentary is made by taking the interview of
the parents of the victim who also said that truth must come before public which implies
that they consented for the documentary and if a person is consenting to reveal something it is
not the violation of right to privacy as they consented for the same and further even if it
would have violated the right to privacy, IBC is not covered under the definition of Art. 12
and hence not the state and fundamental rights are only available against the state and IBC is
a private authority.

-Memorial for Petitioner-

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

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

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

Counsel for petitioners

Sd/-

-Memorial for Petitioner-

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