Moot court Memorial

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Team Code: T7P

Supreme Court of Sarvia

(Under Article 32 of the Constitution of India)

Shri Madhukar Vats………..Petitioner v.

Union of Sarvia & Ors……….…………Respondents

Memorial Submitted to: Hon’ble Chief Justice of Sarvia

Memorial Filed on Behalf of: Petitioner ……….. Counsel Appearing on Behalf of: Petitioner

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LIST OF ABBREVIATIONS

1. &: AND 2. ¶: Paragraph

3. AIR: All India Reporter 4. Anr.: Another

5. Art.: Article 6. Co.: Company

7. CrLJ.: Criminal Law Journal 8. Doc.: Document 9. Ed.: Edition 10. Hon’ble: Honourable 11. J.: Judge 12. Ltd.: Limited 13. Ors.: Others 14. p.: Page 15. pp.: Pages

16. PCI.: Press Council of India 17. Pvt.: Private

18. Pub.: Publication

19. SCC: Supreme Court Cases 20. SCR.: Supreme Court Reporter 21. v.: Versus

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INDEX OF AUTHORITIES

Statutes

Constitution of India ... 11

Indian Penal Code, 1860 ... 1

Press Council of India Act, 1978 ... 4

The Contempt of Courts Act, 1971 ... 8, 9, 16, 17 Cases A.K. Gopalan v. Noordeen, (1969) 2 SCC 734 ... 12

Anukul Chandra Pradhan v. Union of India & Ors., (1996) 6 SCC 354 ... 10

Bata India Ltd. v. A.M. Turaz, <http://lobis.nic.in/dhc/KG/judgement/15-10-2012/KG15102012S30102012.pdf> ... 2

Bathina v. Mad, (1952) SCR 425... 8

Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378 ... 13

House v. Harman, (1983) 1 A.C. 280,308 ... 11

Jaffar v. State, (1910) 11 CriLJ 588 ... 1

M.P. Lohia v. State of West Bengal, (2005) 2 SCC 686 ... 9

Mathrubhumi Printing & Publishing Co. Ltd. v. P. Rajan & Anr., ILR 2005 (3) Kerala 626... 4

McMennitt v Ash [2005] EWHC 3003 (QB) ... 15

Mr. X v. Hospital Z, AIR 1999 SC 495 ... 13

Nirmaljit Singh Narula v. Yashwant Singh & Ors., (2012) 132 DRJ 370 ... 2

P.C. Sen, In Re., AIR 1970 SC 1821 ... 9

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

Ram Jethmalani v Subramanyam Swamy, 126 (2006) DLT 535 ... 1

Ram Singh & Ors. v. State of NCT, Delhi, < http://lobis.nic.in/dhc/GPM/judgement/07-03-2013/GPM07032013CRLR1242013.pdf> ... 10

Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspaper, Bombay Pvt. Ltd., AIR 1989 SC 190 ... 9

Sahara India Real Estate Corporation Ltd. v. Securities Exchange Board of India, (2012) 10 SCC 603 ... 11

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Selvi J. Jayalalithaa & Anr. v. R. Rajagopal, AIR 2006 Mad 197 ... 2

Sharda v. Dharampal, (2003) 4 SCC 493 ... 13

Siddhartha Vashisht v. State of Delhi, AIR 2010 SC 2352 ... 11

State of Bihar v. Lal Krishna Advani, AIR 2003 SC 3357 ... 2

State of Maharashtra v. Rajendra J. Gandhi, (1997) 8 SCC 386 ... 12

State of U.P. v. Resident Editor, Times of India, Lucknow & Ors., 2001 (2) ADJ 612 ... 4

Subba Rao v. Advocate General, (1981) CriLJ 315 ... 9

Sunday Times v. United Kingdom, (1979-80) 2 E.H.R.R. 245 ... 12

T.R. Ardhani v. K.S. Bhargava, (1990) CriLJ 2616 (MP). ... 1

Vinayak v. Shantaram, (1941) CriLJ 174 ... 1

West v BBC (QBD, 10 June 2002, Ouseley J) ... 15

Wine Products v. Mackenzie & Co., (1965) 3 All ER 58 (62) ... 8

Other Authorities European Convention on Human Rights, 1953 ... 12

Norms of Journalistic Conduct, Press Council of India, 2010 Edn ... 3,6 Programme & Advertising Code ... 5

Supreme Court Rules, 1966 ... 12

The Guidelines on Uplinking of Television Channels from India, Ministry of Information and Broadcasting of Government of India ... 5

The Press Complaints Commission’s Code of Practice, United Kingdom, 2012 ... 14

The Press Complaints Commission’s Code of Practice, United Kingdom, 2012< http://www.pcc.org.uk/cop/practice.html> ... 15

Books Reffered Benjamin N. Cardozo, The Nature of the Judicial Process,1921, Wildside Press LLC, Maryland, USA, 2010 ... 8

D.D.Basu, Law of The Press, 5th Edn., Lexis Nexis Butterworths, Wadhwa, Nagpur ... 14

Nigel Lowe and Brenda Sufrin, Law of Contempt (1996), Edn. 3, London: Butterworths ... 12

Wharton’s Law Lexicon, Edn. 14, Universal Law Publishing Co. Pvt. Ltd., New Delhi ... 6

Articles Cited How Markets Crowd Out Morals, Michael J. Sandel, Boston Review ... 7

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STATEMENT OF JURISDICTION

The petitioner have approached this Hon’ble Supreme Court of Sarvia under Article 32 of the Constitution of India.

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STATEMENT OF FACTS

State of Solerno is one of the largest and most populous State in Union of Sarvia constituted in 1956 by an Act of Parliament. At present, State of Solerno has an unfortunate literacy rate of 48%. The political landscape of Salerno is dominated by the All Sarvian Party, the ruling party at the centre and the Presidential Party, the major opposition at the centre. Two major media houses operated in the State of Solerno namely ANB News and Janavani News. ANB Group which was a Salt-to-software business conglomerate was run by the holding company named ANB Industries Ltd. ANB Industries Ltd. had majority stake in ANB News Ltd. but only had three directors out of a board consisting ten directors. Shri. Madhukar Vats, leader of the All Sarvian Party was the promoter and largest shareholder of ANB Industries Ltd.

Janavani was founded by Shri. Devdhar Kamal who also authored the first election manifesto of the Presidential Party in 1967. Although he never held a post in the party was highly respected amongst all the party members. Janavani has emerged as the single largest Hindi daily and a news channel named Janavani News was also launched by Mr. Ram Prasad Kamal son of Mr. Devdhar Kamal. Mr. Ram Prasad Kamal is the chief editor till today.

In October 2011, Janavani published details about coal block allocation and renewal of lease by the All Sarvian Party. These documents prima facie revealed that coal block allocation was allowed on a first come first serve basis instead of an auction method and it also showed that the minimum qualification for coal block allocation for certain companies like ANB Collieries Ltd., Natalie Collieries Ltd. and Coal-Explo Sarvia Ltd. ANB Collieries Ltd. was a public limited company listed in the National Stock Exchange.

After the report was published Mr. Madhukar Vats and the Managing Director of ANB Collieries Ltd were arrested, a high powered ministerial committee was also setup to submit a report on the alleged corruption. A petition to quash the criminal proceedings was rejected by the court. After a chargesheet was filed against Mr. Madhukar Vats an interview of the Coal Secretary (Retd.) as well as the Comptroller and Auditor General of Sarvia (Retd.), wherein they indicated that the coal block allocation could have caused a loss of 18000 crores, was broadcasted. Subsequently, a news article was published in Janavani titled “ANB Group involved in largest scam in the history of Sarvia” within weeks of which the shares of ANB Industries Ltd. and ANB Collieries dropped by 65% and 87% respectively. Mr. Madhukar Vats

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filed a Writ Petition being WP No. 1328 of 2012 before the Supreme Court of Sarvia praying for cancellation of license of Janavani and Janavani News.

As the share prices dropped all the debenture holders, headed by an association called All Sarvia ANB Industries Debenture Holders Association (Regd.), filed a writ petition (WP No. 2462 of 2012) before the Hon’ble Supreme Court praying for timely repayment of all the debentures to Securities and Exchange Board of Sarvia (SEBS) and ANB Industries Ltd. Both the parties were directed to file an affidavit regarding proposals and ANB Industries Ltd. was directed to submit a ‘without prejudice’ proposal to SEBS within two weeks. The next morning Janavani published a news item titled “Yet another attempt by ANB to defraud Sarvia” with all details regarding the security offered by ANB were revealed. Senior counsel for ANB Industries mentioned the matter before Hon’ble Supreme Court objecting to the publication of ‘without prejudice-confidential’ proposal especially when the matter was in sub-judice. Mr. Kamal published a reply stating that such publication was necessary in public interest to inform the debenture holders about the nature of the proposal. Mr. Madhukar Vats filed IA No. 3 of 2012 in the same writ petition praying for formulation of guidelines for print and electronic media while reporting matters which are in sub-judice.

Thereafter, A Sting operation was carried out by reporters of ANB News wherein the deputy editor of Janavani News was recoded stating that it would not carry any story about coal scam from any company which ensures 70% of its total advertisement budget allocated to Janavani and Janavani News. Mr. Madhukar Vats called for a press conference and released the video, an FIR was lodged against Mr. Ram Prasad Kamal and he was arrested. Thereafter, Mr. Kamal filed a Writ Petition No. 3141 of 2012 praying for cancellation of license of ANB News for broadcast of alleged clipping pending investigation and also prayed that the alleged sting operation violated right to privacy.

All the above mentioned matters were put up before the Hon’ble Chief Justice of the Supreme Court of Sarvia and it was decided that all matters will be heard together. The clubbed petition was titled Shri. Madhukar Vats v. Union of Sarvia & Ors. and the parties were directed to file submissions.

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ISSUES PRESENTED

I. WHETHER THE WRIT PETITION FILED BY MR. MADHUKAR VATS IS MAINTAINABLE OR NOT?

II. WHETHER THE REGISTRATION/LICENSE OF JANAVANI AND JANAVNI NEWS IS LIABLE TO BE CANCELLED UNDER THE APPROPRIATE LAW?

III. WHETHER THE HON’BLE SUPREME COURT OUGHT TO FORMULATE THE NECESSARY GUIDELINES FOR REPORTING OF CASES PENDING BEFORE COURTS OR REGARDING MATTERS WHICH ARE SUB-JUDICE?

IV. WHETHER THE STING OPERATION CARRIED OUT BY ANB NEWS VIOLATES RIGHT TO PRIVACY AND AMOUNTS TO INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE?

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SUMMARY OF ARGUMENTS

I. WHETHER THE WRIT PETITION FILED BY MR. MADHUKAR VATS IS MAINTAINABLE OR NOT?

The petitioner pleads that writ petition filed by Mr. Madhukar Vats is to be held maintainable because the Janavani and Janavani News have published and broadcasted certain news articles and reports, respectively, which have defamed the petitioner by stating that ANB Group is involved in the coal scam.

II. WHETHER THE REGISTRATION/LICENSE OF JANAVANI AND JANAVNI NEWS IS LIABLE TO BE CANCELLED UNDER THE APPROPRIATE LAW? The petitioner submits before this Hon’ble Court that the actions of the respondent are against the Journalistic Norms of Conduct set forth by Press Council of India in the year 2010. The petitioner submits that the respondent has twisted the facts of the alleged coal block allocation scam and therefore has not kept up to journalistic ethics and standards of professionalism.

The petitioner submits that the respondent has not followed the Guidelines on Uplinking of Television Channels from India, Ministry of Information and Broadcasting of Government of India and therefore is liable to be held responsible for broadcasting defamatory and derogatory contents through its news channel.

The petitioner submits that the respondent has been involved in the publishing and broadcasting of news articles and reports which have caused prejudice to the judicial proceedings and such articles are interfering with the administration of justice.

The petitioner and the respondent are indirect opponents both in the political as well as business arena and therefore respondent is continuously trying to lower down the image of the petitioner in order to gain political as well financial advantage.

III. WHETHER THE HON’BLE SUPREME COURT OUGHT TO FORMULATE THE NECESSARY GUIDELINES FOR REPORTING OF CASES PENDING BEFORE COURTS OR REGARDING MATTERS WHICH ARE SUB-JUDICE?

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The petitioner submits that the respondent has published the “without prejudice-confidential” report which was communicated between two parties in a pending case before the court and such publication has amounted to contempt of court as the matter was sub-judice before the court and has infringed the right of fair trial of the petitioner.

The petitioner pleads before the court to formulate guidelines for the reporting of sub judice matter by media.

Such guidelines are necessary so as not to prejudice the court, interfere or obstruct with administration of justice and infringing in the right of fair trial of the accused (petitioner).

IV. WHETHER THE STING OPERATION CARRIED OUT BY ANB NEWS VIOLATES RIGHT TO PRIVACY AND AMOUNTS TO INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE?

It is submitted that ANB News has by its sting operation has revealed the dark truths of the management of the respondent media house and therefore has acted in bona fide manner for the benefit of the public.

It is also submitted that ANB News has not interfered in the administration of justice as the matter pending before the court involved other facts and questions of law and this sting operation has managed to create new facts which are totally different from the facts pending before the court.

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ARGUMENTS ADVANCED

I. WHETHER THE WRIT PETITION FILED BY MR. MADHUKAR VATS IS

MAINTAINABLE OR NOT?

The petitioner pleads before the Hon’ble court to hold that the writ petition, filed in pursuance of defamation caused to the petitioner by the acts of the respondent, i.e., Janavani and Janavani News, is maintainable because Janavani and Janavani News is an indirect opponent of ANB Industries Ltd. and under the pretext of condemning corruption Janavani and Janavani have publicly condemned ANB Industries in order to generate public hatred and contempt towards ANB Industries, purely for the sake of profit. The offending headline “ANB group involved in

larges scam in history of Sarvia”1_{is per se defamatory, disparaging the long established} reputation of ANB Industries because Janavani has published an imputation intending to harm the reputation of petitioner and ANB Industries Ltd. as per Section 499, Indian Penal Code, 1860. A publication of the imputation in a newspaper is an excessive use of privilege2_{and it}

lacks public good.3 Due to which, ANB Industries is suffering and stands to suffer irreparable and unquantifiable loss as the entire business of the petitioner revolves around the goodwill and reputation in the market. The fact that the shares of ANB Industries and ANB Collieries have dropped by 65% and 87% respectively goes on to show the humongous loss suffered by the petitioner.

Defamation is a public communication which tends to injure the reputation of another and an individual has a right to protect his honours and reputation.4 In this case, petitioner has come to this Hon’ble court in order to protect his honours and reputation as the largest share-holder of ANB industries Ltd., a Salt-to-Software business conglomerate, and as the promoter of All Sarvian Party which is the ruling party at the centre along with reputation of ANB Industries Ltd. and ANB News Ltd. which is one of the major media houses operating in the State of Salerno.

1_{Factsheet ¶ 6}

2_{Vinayak v. Shantaram, (1941) CriLJ 174.; Jaffar v. State, (1910) 11 CriLJ 588.; T.R. Ardhani v. K.S. Bhargava,}

(1990) CriLJ 2616 (MP).

3_{Section 499, Indian Penal Code, 1860}

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An investigative journalist is entitled to criticize, but, without touching the reputation and without exceeding the limits and bounds made by law, since law would not permit anyone to use his freedom of speech or expression as to injure another’s reputation or to indulge in what may be called as “character assassination”.5_{As in the instant case, Janavani and Janavani news}

although have the freedom to criticize about the methods used for Coal Block Allocation and the Lease Renewal, but, but repeatedly alleging corruption by ANB has caused damage to the reputation of ANB Group and Mr. Madhukar Vats and in this way the respondent is exceeding the limits and bounds set by law.

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled licence that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Reasonably limited, this freedom is an inestimable privilege and without such limitation it might become a scourge of the republic.6 As in the present case hand, the same has happened. The news articles and reports published and broadcasted by Janavani and Janavani News, respectively, have acted as a scourge for the petitioner and is punishing the petitioner arbitrarily. It is submitted before the court, the media or any such modes of communication have to very careful when the question comes of reputation or esteem of any person or institution involved as any irresponsible or reckless campaign by the media can play havoc with the esteem, prestige, reputation and goodwill of any person.7

The right of an individual was recognised by Supreme Court of India in the matter of State of Bihar v. Lal Krishna Advani8:

“Reputation is an integral and important aspect of dignity of every individual. The right to preserve one’s reputation is acknowledged as a right in rem.”

In view of the above discussion, the petitioner pleads before this Hon’ble Court to hold the present writ petition maintainable and to decide on the matter whether there has been

5_{Selvi J. Jayalalithaa & Anr. v. R. Rajagopal, AIR 2006 Mad 197}

6 _Bata _India _Ltd. _v. _A.M. _Turaz,

<http://lobis.nic.in/dhc/KG/judgement/15-10-2012/KG15102012S30102012.pdf> retrieved on April 1, 2013, 1.49 am

7_{Nirmaljit Singh Narula v. Yashwant Singh & Ors., (2012) 132 DRJ 370} 8_{State of Bihar v. Lal Krishna Advani, AIR 2003 SC 3357}

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defamation caused to the petitioner by the respondent, wherefore the license of Janavani and Janavani News should be cancelled or not.

II. WHETHER THE REGISTRATION/LICENSE OF JANAVANI AND JANAVNI

NEWS IS LIABLE TO BE CANCELLED UNDER THE APPROPRIATE LAW?

A. JANAVANI AND JANAVANI NEWS HAVE COMMITTED PROFESSIONAL MISCONDUCT

Janavani and Janavani News have been publishing news articles and have broadcasted news reports about the involvement of Mr. Madhukar Vats, ANB Industries Ltd. and ANB Collieries Ltd. in the coal block allocation scam even though the case before the court is still pending and the proof of involvement of ANB Industries cannot be concretely ascertained. As a custodian of public interest, the Press has a right to highlight cases of corruption and irregularities in public bodies but such material should be based on irrefutable evidence and published after due inquiries and verification from the concerned source and after obtaining the version of the person/authority being commented upon. Newspapers should refrain from barbed, stinging and pungent language and ironical/satirical style of comment. The attempt of the press should be to so shake up the institutions as to improve their working, not to destroy them or the public confidence in their working or demoralize the workforce. 9 Janavani and Janavani News are acting against the norms of journalistic conduct. Without any evidence, they are publishing news articles and broadcasting news reports about the involvement of ANB Industries and ANB Collieries Ltd., and since, the matter is still pending before the court and no statement has been given by any court. The high powered ministerial committee has also not submitted its report, the source and the verification of the articles is a matter of question. The respondent is conferring to sensationalistic headlines such as “ANB Group involved in largest scam in

9_{Press Council of India, Norms of Journalistic Conduct, <}_{http://presscouncil.nic.in/NORMS-2010.pdf}_{>, retrieved}

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history of Sarvia”, which inconsistent with the facts of the alleged scam. Based on the offence against the journalistic ethics or standards and in case of any professional misconduct Press Council of India has power to admonish or censure the newspaper or the news agency.10 It is submitted by the petitioner that due to the misconduct of the respondent, an action must be taken against Janavani and Janavani News.

B. JANAVANI AND JANAVANI NEWS ARE TWISTING THE FACTS OF THE COAL BLOCK ALLOCATION SCAM

It is true that the media has freedom under The Constitution of India, but, media should avoid tendencies like sensationalism, misleading headlines, twisting of facts, and vilification of an individual, institution. If the media fails to avoid these dangers, it comes under scrutiny of the law of libel or slander or of defamation. Therefore the media must set its ideals fairly high.11 In the present case, Janavani and Janavani News have repeatedly made ANB Industries Ltd. synonymous with the alleged scam even though there is no concrete proof of involvement. The report of the high power ministerial committee is still pending and the proceedings of the court are still going on in the coal block allocation scam.12 Janavani and Janavani News have been twisting the facts of the scam giving misleading headlines attaching name of ANB group for creating sensation in public and thus, is causing vilification of Mr. Madhukar Vats and ANB Group. They are not keeping up their journalistic ideals with high professional standards.13

C. JANAVANI AND JANAVANI NEWS IS PUBLISHING AND TRANSMITTING CONTENT INCONSISTENT WITH PUBLIC INTEREST AND AMOUNTING TO CONTEMPT OF COURT

i. PUBLIC INTEREST

There exists a few frameworks under which the permission given to a broadcasting agency may be revoked. One of such frameworks is The Guidelines set up for Uplinking of Television Channels by the Ministry of Information and Broadcasting, India. Janavani News has been

10_{Section 14, Press Council of India Act, 1978}

11_{State of U.P. v. Resident Editor, Times of India, Lucknow & Ors., 2001 (2) ADJ 612} 12_{Factsheet ¶ 5}

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transmitting content and messages through it news reports containing defamatory, deliberate, false and suggestive innuendos against ANB group and Mr. Madhukar Vats about their involvement in the coal block allocation scam which is not true and which is defaming the petitioner.14 Janavani News has been used for transmitting objectionable content, and messages which are inconsistent with public interest and thus the permission given to the channel can be revoked and for a period of 5 years the channel will be disqualified to hold such permission15_{and if the court thinks fit it can only suspend the permission of company for a}

specified period in public interest to prevent its misuse.16_{Since, Janavani News has repeatedly}

defamed ANB Industries several times, all under the pretext of journalism by publishing headlines like “ANB Industries involved in the largest scam in Sarvia” and “Yet another attempt by ANB industries to defraud the people of Sarvia” the defendant has defamed the reputation of the company. The primary objective of any journalistic establishment to present news to people and not to further its own commercial interest by clouding news items with malice. The fact that only the name of ANB industries was highlighted while ignoring other business enterprises involved in the alleged scam goes on to prove the intention of Janavani News.17

In pursuance of the public interest it is to be noted that a journalistic entity ridden with crimes poses as a serious danger to the welfare of the society, such an entity would have a power to alter the minds of the people in a society. Journalism and Media do not have any place for a company or a media house that submits to unscrupulous methods to further its interest. Hence taking in view the guidelines set out by the Government of India and the general pulse of the legislature and judiciary towards criminal activity, therefore, it is submitted that the permission given to Janavani News must be revoked and it must be barred from carrying out news broadcasting.

14 _Rule ₆ _Programme _& _Advertising _Code,

<http://www.mib.nic.in/writereaddata/html_en_files/content_reg/PAC.pdf>, retrieved on March 31, 2013, 3.30 pm

15_{Para 8.1 of The Guidelines on Uplinking of Television Channels from India, Ministry of Information and}

Broadcasting of Government of India,

16_{Para 5.9 of The Guidelines on Uplinking of Television Channels from India, Ministry of Information and}

Broadcasting of Government of India,

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ii. CONTEMPT OF COURT

Media should avoid tendencies like vilification of court of law, interfering or tending to interfere with the course of justice by adopting a role of an investigator, by usurping the function of a court of law in matters sub-judice by publishing extra judicial information in a pending trial. If the media fails to avoid these dangers it will amount to contempt of court. Therefore, the media must set its ideals fairly high.18 Janavani and Janavani News have also violated the principles of Contempt of Court. It has utterly disregarded the sanctity of the court. Janavani and Janavani News have been acting in manners which, interferes or tends to interfere with the due course of any judicial proceedings. By publishing secret documents (without prejudice report of ANB Industries Ltd. sent to SEBS and Union of Sarvia vide an e-mail and also under sealed cover letter)19 relating to the judicial proceedings Janavani News has hampered with the due course of the court. While it may be argued that Janavani News has not directly interfered with the court, such an argument is fraught with inconsistencies. The publication and broadcasting done by Janavani have put the court in dilemma. The court is in a position where it cannot come to fair and uninfluenced decision and thus Janavani News has had interfered with the due course of justice.

D. MOTIVE BEHIND THE NEWS ARTICLES AND NEWS REPORTS

On January 18, 2012 Janavani published a news article titled “ANB industries involved in the largest scam in the history of Sarvia” indicating that ANB industries had caused a loss of 18000 Crores to the state.20_{Janavani has clearly violated the said norms of Journalistic conduct.}21_Not

only has Janavani has used ‘barbed language’,i.e. Cold criticism22_{, it has also failed to conduct}

due enquiries and there exists no version of comment from ANB Industries from the article. The said article is one-sided and biased, the only purpose of the article is to malign and defame ANB Industries. While it may be argued from the side of Janavani that it had sought the opinion of supposed experts before the publication of the article but such an argument would be a very weak argument at best. Firstly, Janavani has relied on the views of individuals who are

18_{Supra at note 13} 19_{Factsheet ¶ 8} 20_{Factsheet ¶ 6}

21_{Clause 3(xv), Norms of Journalistic Conduct, Press Council of India, 2010 Edn.}

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unconnected to the coal block allocation, these individuals have retired from their respective fields of work. Secondly, Even if it assumed that the views of the individuals are valid, such views and the word used by the individuals have been twisted so as to benefit the ulterior motive of Janavani to malign the good reputation of ANB Industries Ltd. The exact words are “the coal block allocation scam could have caused loss of about 18000 Crores to the State Exchequer” these words were twisted and the whole blame was fixed on ANB Industries while other companies were completely ignored. This proves the corrupt practises used by Janavani to malign and defame ANB industries, it also proves that Janavani and Janavani News have utter disregard for journalistic norms. It is said that certain goods get diminished or corrupted if bought or sold for money.23_{Journalism is one of them. Journalists have a duty to present}

news without any malice or ill will. The moment a newspaper or publications is fraught with ill will and a sense to defraud the readers by publishing news filled with repugnant opinions such news must be shut down. Janavani and Janavani News notoriously fall under this category. Janavani and Janavani News have repeatedly misused the power given to a media institutions to further its own political and commercial interests. They have gone against the journalistic norms and resorted in defamation and contempt of courts and hence have violated the sanctity of journalism. For the misuse of their power the petitioner pleads that their license must be revoked and they must be barred from any further publications.

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III. WHETHER THE HON’BLE SUPREME COURT OUGHT TO FORMULATE

THE NECESSARY GUIDELINES FOR REPORTING OF CASES PENDING BEFORE COURTS OR REGARDING MATTERS WHICH ARE SUB-JUDICE?

A. JANAVANI AND JANAVANI NEWS HAVE ACTED IN MANNER AMOUNTING TO CONTEMPT OF COURT

Janavani has published information regarding the confidential proposal communicated between ANB Industries and Securities and Exchange Board of Sarvia (SEBS). This has been published by Janavani under the heading “Yet another attempt by ANB to defraud Sarvia”24 which, prejudices or interferes or tends to interfere with the due course of the judicial proceedings25 in the writ petition filed by “All Sarvia ANB Industries Debenture Holders Association (Regd.)” before this Hon’ble Court26_{, which is still pending. Such a headline would}

surely make an impact over the thought process of citizens of Sarvia and in turn prejudice the court against ANB industries. The court is a body that protects the interest of the citizens of the country; there is a possibility that the courts may be swayed with the emotions of the citizens. Such a situation would be prejudicial to ANB Industries Ltd.

In the circumstances of the case, it can be said that Janavani and Janavani News are likely to prejudice the fair trial and such prejudice is a real one.27 The judges are subconsciously influenced by several forces.28 That is the reason why anything which prejudices the court against any party before the cause is heard is said to be contempt of court.29 There is danger, of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or of the media publishes statements which out rightly hold the suspect or the accused guilty even before such an order has been passed by the Court.30 In the instant case, while the proceedings had already commenced, ANB industries Ltd. was directed to submit “ without prejudice” proposal to Securities and Exchange Board of Sarvia (SEBS) which was

24_{Factsheet ¶ 8}

25_{Section 2(c) (2), The Contempt of Courts Act, 1971} 26_{Factsheet ¶ 7}

27_{Wine Products v. Mackenzie & Co., (1965) 3 All ER 58 (62)}

28_{Benjamin N. Cardozo, The Nature of the Judicial Process,1921, Wildside Press LLC, Maryland, USA, 2010} 29_{Bathina v. Mad, (1952) SCR 425}

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sent under a sealed-cover letter and via email to SEBS and Union of Sarvia. Now, it cannot be disputed that the matter was sub-judice and Janavani had published a news item titled “Yet another attempt by ANB to defraud Sarvia” while the matter was sub-judice. Such a publication might lead to a real and imminent danger to prejudice the thought process of the court.

A person may be guilty of contempt even though he had no intention to commit contempt in such cases the question is not whether the offender had any intention, but, the affect of the publication.31_{Anything which prejudices the court against any party before the cause is heard}

is contempt. Whether the court is actually influenced by the act or statement is not material.32

Janavani has interfered with the administration of justice by publishing the “without prejudice confidential report” and has obstructed the court proceedings because the report was confidential and as a matter of fact it was yet to be approved by SEBS and before this court could take notice of the proposal it was published in the name of public interest. Such a situation may lead to an instance where the authority of this Hon’ble Court may be lowered in the eyes of the general public.33 A plea of “larger public good” is not a legal defence.34 Therefore, there is no immunity available to the respondent and its act amounts to contempt of court.35

B. REASONABLE GROUNDS FOR FRAMING OF THE GUIDELINES IN ORDER TO KEEP ADMINISTRATIN OF JUSTICE UNIMPAIRED

In Reliance Petrochemicals Ltd v Proprietors of Indian Express Newspapers, Bombay Pvt.

Ltd36_{there was a publication in one the national dailies of certain articles which contained} adverse comments on the proposed issue of debentures by a public limited company. The validity of the debentures was sub-judice in the Supreme Court of India. The court had granted injunction against the press, restraining publication of articles on the legality of the debenture issue. The restriction on the press was based on reasonable grounds for keeping the administration of justice unimpaired and it was held that such reasonable grounds must

31_{P.C. Sen, In Re., AIR 1970 SC 1821} 32_{Supra at note 5}

33_{Section 2(c) (1) and 2(c) (3), The Contempt of Courts Act, 1971}

34_{M.P. Lohia v. State of West Bengal, (2005) 2 SCC 686 ; Subba Rao v. Advocate General, (1981) CriLJ 315} 35_{Section 3(3), The Contempt of Courts Act, 1971}

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apprehend a danger that is real and imminent. The doctrine of “Clear and Present danger” was propounded by Justice Holmes in Schenck v. United States37.

In the present case certain articles and news items were published and news reports were broadcasted on Janavani and Janavani news respectively. Immediately after the appointment of an empowered ministerial committee to submit a report regarding adoption of corrupt practices and financial misappropriation in coal block allocation. These articles were published when the investigations were still pending and high powered ministerial committee was yet to submit its report. This action did cause certain hatred in the mind of public and within a span of 3 weeks the shares of ANB Industries and ANB Collieries Ltd. dropped by 65% and 87%, its lowest in last decade. It is unfortunate that the trial by media affected the accused to a very large extent and prejudice of such extent might also be reflected in the decision of the court. The freedom of speech under Article 19 (1) (a) of The Constitution of India has to be carefully and cautiously used, so as to avoid interference in the administration of justice and leading to undesirable results in the matters sub-judice before the courts. It would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers for the court. The impact of television and newspaper coverage on a person’s reputations by creating a widespread perception of guilt, regardless of any verdict in a court of law will not be fair.38

Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of Constitution of India.39

It is essential for the maintenance of dignity of courts and is one of the cardinal principles of rule of law in a free democratic country that the criticism or even the reporting particularly in

sub-judice matters must be put to check and balances so as to not interfere with the

administration of justice.40_{Trial by media should be avoided particularly at a stage when the}

37_{Schenck v. United States, 249 U.S. 47 (1919)} 38_{Supra at note 13}

39_{Anukul Chandra Pradhan v. Union of India & Ors., (1996) 6 SCC 354}

40_{Ram Singh & Ors. v. State of NCT, Delhi, <} http://lobis.nic.in/dhc/GPM/judgement/07-03-2013/GPM07032013CRLR1242013.pdf>, retrieved on April 1, 2013, 11.00 am

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accused is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible.41

Petitioner relies on judgement in Home Office v. Harman,42 where the House of Lords found that the counsel for a party was furnished documents by the opposition party during inspection on the specific undertaking that the contents will not be disclosed to the public. However, in violation of the said undertaking, the counsel gave the papers to a third party, who published them. The counsel was held to be in contempt on the principle of equalization of the right of the accused to defend himself/herself in a criminal trial with right to negotiate settlement in confidence.

In the light of the above discussed judgements, petitioner pleads this Hon’ble Court to give guidelines over the reporting of matters in sub-judice.

C. NECESSITY FOR FORMULATION OF GUIDELINES

In the case of, Sahara India Real State Corporation Limited v. Securities Exchange Board of India43_{, Supreme Court said that:}

“We are distressed to note that even "without prejudice" proposals sent by learned counsel for the appellants to the learned counsel for SEBI has come on one of the TV channels. Such incidents are increasing by the day. Such reporting not only affects the business sentiments but also interferes in the administration of justice.”

The Continental Approach of the matters relating to sub-judice is less concerned with the issue of fair trial than with the need for safeguarding privacy, personal dignity and presumption of innocence of trial participants. The underlying assumption of this model is that the media coverage of pending trials might be at odds not only with fairness and impartiality of the proceedings, but, also with other individual and societal interests. Janavani has infringed in the right of the petitioner to fair trial44 in the pending proceedings before the court as a result it is not only infringing the rights of the petitioner to fair trial, it’s act is also amounting to contempt of court, which is neither good for the public at large due to obstruction and interference in the

41_{Siddhartha Vashisht v. State of Delhi, AIR 2010 SC 2352} 42_{House v. Harman, (1983) 1 A.C. 280,308}

43_{Sahara India Real Estate Corporation Ltd. v. Securities Exchange Board of India, (2012) 10 SCC 603}

44_{Article 21, Constitution of India, P.M. Bakshi, Universal Law Publications Pvt. Ltd., New Delhi, 2010, ISBN:}

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administration of justice nor for the petitioner because his reputation has been maligned before the public and his right to fair trial is also infringed. It is important to note that in the common-law approach the protection of sanctity of legal proceedings as a part of administration of justice is guaranteed by institution of contempt proceedings.45Presumption of innocence needs to be protected. 46_{Statements which could be prohibited temporarily would include statements}

in the media which would prejudice the right to a fair trial of a suspect or accused under article 21 from the time when the criminal proceedings in a subordinate court are imminent or where suspect is arrested.47_{The petitioner’s right to presumption of innocence is diminished because}

of such news articles and reports as published by Janavani and broadcasted by Janavani News. Whilst there is no fetter on the fair reporting of any matter in court, matters relating to proposal made inter-parties are privileged from public disclosure. That, disclosure and publication of pleadings and other documents on the record of the case by third parties (who are not parties to the proceedings in this court) can (under the rules of this Court) only take place on an application to the court and pursuant to the directions given by the court.48 A trial by press, electronic media or public agitation is the very antithesis of rule of law.49

Fair trials and public confidence in the courts as the proper forum for settlement of disputes as part of the administration of justice, under the common law, were given greater weight than the goals served by unrestrained freedom of the press. As a consequence, the exercise of free speech respecting ongoing court proceedings stood limited.50

The meaning of the words "contempt of court" in Art. 129 and Art. 215 is wider than the definition of "criminal contempt" in section 2 (c) of Contempt of Courts Act, 1971. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice.51_{In the context of second part of Art. 129}

and Art. 215 of the Constitution of India, the object of the contempt law is not only to punish, it includes the power of the Courts to prevent such acts which interfere, impede or pervert administration of justice. Therefore, this Court should consider giving guidelines as to the

45_Ibid.

46_Article _6(2), _European _Convention _on _Human _Rights, ₁₉₅₃ _<

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf>, retrieved on March 30, 2013, 3.30 am

47_{A.K. Gopalan v. Noordeen, (1969) 2 SCC 734}

48_{Order XII, Rules 1, 2 and 3 of Supreme Court Rules, 1966} 49_{State of Maharashtra v. Rajendra J. Gandhi, (1997) 8 SCC 386} 50_{Sunday Times v. United Kingdom, (1979-80) 2 E.H.R.R. 245}

51_{Nigel Lowe and Brenda Sufrin, Law of Contempt (1996), Edn. 3, London: Butterworths, ISBN}

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manner and extent of publicity which can be given to pleadings/ documents filed in court by one or the other party in a pending proceedings which have not yet been adjudicated upon. In doing so this Court should restate the law or declare the law under article 141 on balancing of Article 19(1)(a) rights vis-a-vis Article 21, the scope of Article 19(2) in the context of the law regulating contempt of court and the scope of Article 129/ Article 215 of the Constitution of India.

IV. WHETHER THE STING OPERATION CARRIED OUT BY ANB NEWS

VIOLATES RIGHT TO PRIVACY AND AMOUNTS TO INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE?

A. ANB NEWS HAS NOT VIOLTED THE RIGHT TO PRIVACY OF MR.RAM PRASAD KAMAL

Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.52 Right to privacy in terms of Article 21 of the Constitution of India is not an absolute one.53 Here, in the present case, the contention of Mr. Ram Prasad Kamal that the sting operation by ANB News is intruding his right to privacy is incorrect. The sting operation video contained certain facts about the working pattern of Janavani and Janavani News which was against the journalistic code of ethics and standards of journalism. The right to privacy in any event will necessarily have to go through a process of case by case development. Therefore, even assuming that the right to practise any profession, occupation or trade or business or right to personal liberty, which create an independent right to privacy as an emanation from them which one can categorise as fundamental right, such emanated right is also not absolute.54 Therefore in the present case, the right to privacy of Mr. Ram Prasad Kamal is not absolute and in the need of bona fide public interest it can be intruded.

52_{Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378} 53_{Sharda v. Dharampal, (2003) 4 SCC 493}

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The phenomenon of “Paid News” where newspapers and other media, in return for large amounts of money, virtually become de facto of political parties, organizations and public leaders, has been like a festering wound which has come out into the open now only, and has emerged as a serious peril to Indian democracy. Having reached this nadir journalists should focus on their original purpose – to inform the public, truthfully and impartially.55_{The video}

of the sting operation was neither causing any contempt of court as it did not interfere with the judicial process nor was it interfering with the administration of justice and it did not defame anyone. The video just brought out certain facts into the light which can cause ill effects to the public good and the fact that Janavani was biased towards those companies which were ready allocate their advertising budget to Janavani, which only supports the fact that Janavani news is corrupt and its only interest is the furtherance of its commercial interest. This kind of paid news cannot be held to be good for the public at large and it cannot be relied upon. This video raised a question about the credibility and integrity of the news published by Janavani.

The Press Complaints Commission’s Code of Practice used in United Kingdom contains a number of provisions which regulate the way in which news may be gathered and in which the press must respect privacy rights. ‘It both protects the rights of the individual and upholds the public’s right to know’56_{. The clauses on Privacy,}57_Harassment,58_{Listening Devices,}59_and

Misrepresentation60 are of obvious relevance. It is to be noted that each of these is subject to a public interest exception. The code defines the public interest non-exhaustively as detecting or exposing crime or a serious misdemeanour, Protecting public health and safety preventing the public from being misled by some statement or action of an individual or organization. In the present case, ANB News by its sting operation has detected and exposed the crime and serious misdemeanour, in which Janavani and Janavani News were involved. The sting operation showed that Janavani and Janavani News were involved in a kind of paid news and were biased towards particular companies which paid for the advertisement. Such kind of an attitude of Janavani and Janavani News may result in misleading the public and ANB News by its sting

55_{D.D.Basu, Law of The Press, 5}th_{Edn., Lexis Nexis Butterworths, Wadhwa, Nagpur}

56_{Para 3, The Press Complaints Commission’s Code of Practice, United Kingdom, 2012}

< http://www.pcc.org.uk/cop/practice.html>, retrieved on April 1, 2013, 12.50 pm

57_{Clause 3, The Press Complaints Commission’s Code of Practice, United Kingdom, 2012}

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operation has prevented the people from being misled by the statement and actions of Janavani and Janavani News.

Similar detailed provisions are to be found in the United Kingdom’s Broadcasting Standards Commission’s Statutory Code on Fairness and Privacy, Independent Television Commission’s Programme Code, the BBC Producer’s Guidelines, and the Radio Authority Programme Code. The codes are no longer merely ethical systems operating alongside the law; they now have a substantive impact on the law in their own right. This by virtue of express provisions in both Human Rights Act 1998 of United Kingdom and The Data Protection Act 1999 of United Kingdom. Some police forces, Customs and Excise officers, and other public authorities allow journalists to accompany them on certain operations, such as drug raids. These can, and often do, involve trespass to land. The BBC Producer’s Guidelines provide that programme makers should only go on such raid if they are sure that there is a clear public interest involved.61 Even if the accused refuses to give permission to continue filming such filming can be continued if there exists strong public interest such as reasonable evidence of criminal activity.62 These provisions explain the amount of freedom given to the press to expose corruption and criminal activity. Hence, the party cannot take the plea of trespass to its privacy.

In RK Anand v. Registrar, Delhi High Court63, the court observed:

“Looking at the matter from a slightly different angle we ask the simple question, what would have been in greater public interest; to allow the attempt to suborn the witness, with the object to undermine a criminal trial, lie quietly behind the veil of secrecy or to bring out the mischief in full public gaze? To our mind the answer is obvious. The sting telecast by NDTV was indeed in larger public interest and it served an important public cause.”

In light of the above discussed facts, judgments and rules and regulations, the petitioner humbly submits that there was no infringement of right to privacy by the petitioner and in public interest with a bona fide intention only ANB News had carried on the sting operation and were able to reveal the mala fide intentions of the respondent, which were not good for the public.

61_{West v BBC (QBD, 10 June 2002, Ouseley J); McMennitt v Ash [2005] EWHC 3003 (QB)}

62_{Clause 33 on Fairness and Privacy, The Press Complaints Commission’s Code of Practice, United Kingdom,}

2012< http://www.pcc.org.uk/cop/practice.html>, retrived on April 1, 2013, 12.50 pm

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B. ANB NEWS HAS NOT, IN ANY MANNER, INTERFERED WITH THE ADMINISTRATION OF JUSTICE

With regard to the case in hand, petitioner pleads that, in the sting operation video there was nothing to influence the outcome of the pending matters before the court. Even if the video had potential to influence the trial proceedings that risk was far outweighed by the public good served by the broadcast. No imposition of a sentence for the contempt of court upon ANB News must be there because the sting operation conducted by ANB News does not interferes or tends to interfere with due course of justice and since the sting operation has revealed a dark truth of the management of Janavani and Janavani News, which was not in the public interest, ANB News in a bona fide manner can invoke the defence of “justification by truth”.64 There exists a huge amount of difference between Trial by media and Sting Operation. As noted above Trial my media has the possibility to change the outcome of any decision. It enrages the people while the trial has commenced but a Sting Operation merely brings to the notice of the people, the prevailing corruption in the society. In light of the above definitions it must be noted that the broadcast by ANB news was only act to show the prevailing corruption taking place in Janavani and Janavani News. There was nothing in the broadcast to suggest that the accused were guilty or innocent. That is the duty of the court to decide. The defendant was only responsible in putting forward evidence that may or may not incriminate the accused in a criminal case.

According to the facts of the case after the sting operation had taken place Mr. Madhukar Vats called for a press conference and released video of the sting operation. It was alleged by Mr. Devdhar Kamal that such an act construes to interference in administration of justice. Such an allegation is baseless. ANB news only seeked to show the prevailing corrupt practises of Janavani and Janavani News. It was recorded on camera that the deputy editor on behalf of Janavani News would not carry any story about the coal scam from any company which ensures 70% of the company’s total advertisement revenue to Janavani and Janavani news. This shows that Janavani News is ready to disregard journalistic norms for the sake of money and is biased towards those companies from which it gets revenue. This directly proves that the integrity and credibility of Janavani and Janavani News is under question. All these facts show that ANB was helping to lift the veil of secrecy and it brought out the mischief in full public gaze. The

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sting operation was indeed in larger public interest and it served an important public cause and therefore, the plea of Mr. Ram Prasad Kamal that the alleged clipping violated right to privacy and was hampering with the pending investigation in the matter regarding alleged coal block allocation is false. Janavani and Janavani News were merely messengers of the alleged scam. Janavani and Janavani News are not parties to the suit for coal block allocation and they merely reported the matter as journalists. They are just involved in the defamation suit filed against them and they are not even parties in the suit filed by the All Sarvia ANB Industries Debenture Holders Association (Regd.). The facts shown in the video of the sting operation are different from the facts of the other suits. In no way these facts can interfere with the sub-judice matter before the court. ANB News reasonably believed that there were no proceedings pending before the court65 on the related subject matter of corruption in Janavani and Janavani News. Therefore, in light of the above facts and the cases discussed, petitioner humbly submits before the court that ANB News has not interfered in any manner with the administration of justice and neither has it violated the right to privacy of any person.

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Prayer

Wherefore, in the light of the issues raised, arguments advanced authorities cited, it is humbly prayed that this court may be pleased to:

Declare,

That Writ Petition No. 1328 of 2012 and IA No. 3 of 2012 in Writ Petition No. 2642 of 2012 to be held maintainable;

That the license of Janavani and Janavani News is liable to be cancelled under appropriate law;

That necessary guidelines be formulated for reporting of cases pending before courts or regarding matter which are sub-judice;

That the reverse sting operation does not violate the right to privacy of Mr. Ram Prasad Kamal and it does not amounts to interference with the administration of justice and license of ANB News cannot be cancelled;

And pass any other order that this Hon’ble court may deem fit in the interest of Justice.

Respectfully submitted, --- (PETITIONER)