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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

BEFORE THE HON’BLE SUPREME COURT OF INDIKA

SPECIAL LEAVE PETITION NO.____/2024

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIKA

IN THE MATTER OF

MR. SANGA MAGAR………………………................................................APPELLANT

VERSUS

UNION OF INDIKA AND ORS. ………………………...……………..RESPONDENTS

MEMORANDUM ON BEHALF OF APPELLANT

COUNSEL APPEARING ON BEHALF OF APPELLANT


TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

TABLE OF CONTENT

LIST OF ABBREVIATIONS……………………………………………………………... 4
INDEX OF AUTHORITIES……………………………………………………………… 5
STATEMENT OF JURISDICTION………………………………………………………. 7
STATEMENT OF FACTS………………………………………………………………... 8
STATEMENT OF ISSUES……………………………………………………………….. 9
SUMMARY OF ARGUMENTS…………………………………………………………. 10
ARGUMENTS ADVANCED…………………………………………………………….. 11
1. WHETHER THE SLP IS BARRED ON THE GROUND OF AVAILABILITY
OF ALTERNATIVE REMEDY............................................................................... 11
1.1. Legal Position on Special Leave Petition and Availability of Alternative Remedy… 11
1.2. Grounds for Filing the SLP………………………………………………………… 12
1.3. The Role of the Supreme Court in Protecting Fundamental Rights and Public
Order……………………………………………………………………………………. 13
2. WHETHER A FILM, CERTIFIED TO BE RELEASED BY THE CENSORSHIP
BOARD CAN BE STAYED AND/OR BANNED ON THE GROUND THAT
THE SAME HURTS COMMUNITY SENTIMENTS?......................................... 14
2.1. The Fundamental Rights Involved………………………………………………… 14

2.2. The Role of the Censorship Board and Judicial Oversight…………………………. 15

2.3. Potential for Inciting Communal Tensions………………………………………… 16

2.4. The Impact on Community Sentiments and Public Order………………………….. 17

2.5. Judicial Intervention to Prevent Social Unrest……………………………………... 18

3. WHETHER “DISRUPTION OF PUBLIC ORDER” CAN BE A GROUND TO


CURTAIL THE PRODUCER’S FUNDAMENTAL RIGHTS TO “EXPRESS”
AND TO “PRACTICE ANY PROFESSION” AS PROVIDED UNDER
ARTICLES 19(1)(A) AND 19(1)(G) RESPECTIVELY, IN ATTRACTING THE
REASONABLE RESTRICTIONS CONTEMPLATED IN ARTICLES 19(2)
AND 19(6) OF THE CONSTITUTION OF INDIKA?.......................................... 20
3.1. Certification Does Not Immunize the Film from Restrictions Due to Threats to
Public Order……………………………………………………………………………... 20
3.2. The Film’s Content Has a Direct and Immediate Potential to Disrupt Public Order... 21

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

3.3. The State’s Responsibility to Maintain Public Order Justifies Limiting Individual
Rights under Articles 19(1)(a) and 19(1)(g)…………………………………………….. 22
4. WHETHER THE CERTIFICATE GRANTED BY THE CENSORSHIP
BOARD BAD IN LAW IN BEING AGAINST THE PRINCIPLES LAID
DOWN IN SECTION 5B OF THE CINEMATOGRAPH ACT, 1952 AND IS
THEREBY LIABLE TO BE SET ASIDE?............................................................ 25

4.1. Whether the Censorship Board failed to properly apply Section 5B standards,
given the film’s potential to incite violence …………………………............................... 25

4.2. Whether the Board’s certification violated the “decency and morality” clause under
Section 5B(1)……………………………………………………………......................... 26

4.3. Whether the Board failed to consider the film’s potential to harm “religious
sentiments,” as outlined in Section 5B(1)………………………………………............... 27

4.4. Whether the Censorship Board ignored its duty to censor promotional content,
specifically the non-certified trailer……………………………………........................... 27

4.5. Whether the film’s certification was influenced by political motivations,


compromising the Board’s impartiality………………………………………………….. 28

PRAYER……………………………………………………………………................... 30

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

LIST OF ABBREVIATIONS

SLP Special Leave Petition

V. Versus

Ors. Others

Gov. Government

SCC Supreme Court Case

AIR All India Reporter

Art. Article

$ Section

U/p Under Paragraph

U/s Under Section

U/c Under Clause

Hon’ble Honorable

i.e. That is

HC High Court

SC Supreme Court

& And

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

INDEX OF AUTHORITIES

Sl no. LIST OF CASES

I. K.K. Verma v. Union of India (1954) 2 SCR 1159

II. Union of India v. Tushar Ranjan Mohanty (2007) 1 SCC 255

III. Shreya Singhal v. Union of India (2015) 5 SCC 1

IV. Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881

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

VI. S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574

VII. Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India AIR 1986
SC 515

VIII. A.K. Gopalan v. State of Madras (1950) AIR 27

IX. K.A. Abbas v. Union of India AIR 1971 SC 481

X. Ramesh Chotalal Dalal v. Union of India (1988) AIR 775

XI. Ram Manohar Lohia v. State of Bihar (1966) AIR 740

XII. Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana (1988) AIR


1642

XIII. Bobby Art International v. Om Pal Singh Hoon (1996) 4 SCC 1

XIV. Ramesh v. Union of India (1988) AIR 775

XV. Modern Dental College v. State of Madhya Pradesh [2016] 3 SCR 579

XVI. Anuradha Bhasin v. Union of India AIR 2020 SC 1308

XVII. Prakash Jha Productions v. Union of India (2011) 8 SCC 372

XVIII. Sakal Papers (P) Ltd. v. Union of India (1962) AIR 305

XIX. Centre for Public Interest Litigation v. Union of India AIRONLINE 2020
GUJ 367

XX. Maneka Gandhi v. Union of India (1978) AIR 597

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

Sl No. LIST OF STATUTES

1. The Constitution of India

2. The Cinematograph Act, 1952

3. The Cinematograph (Certification) Rules, 1983

4. The Cinematograph (Certification) Rules, 2024

DATA CITED BOOKS


1. https://www.scconline.com 1. BASU D.D “INTRODUCTION TO
2. https://indiankanoon.org THE CONSTITUTION OF INDIA”
3. https://www.casemine.com (2023); LEXIS NEXIS
4. https://www.sci.gov.in 2. JAIN M.P “INDIAN
5. https://prsindia.org CONSTITUTIONAL LAW”
6. https://www.drishtiias.com (2020); LEXIS NEXIS
7. https://www.indiacode.nic.in 3. CHAUHAN S.P. SINGH
8. https://mib.gov.in “SOURCES AND FRAMING OF
9. https://www.cbfcindia.gov.in THE CONSTITUTION OF INDIA”
(2017); UNIVERSAL

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

STATEMENT OF JURISDICTION

This Hon'ble Court has jurisdiction to hear and decide the present appeal under Article 136 of
the Constitution of Indika. Article 136 confers upon the Supreme Court the discretionary power
to grant special leave to appeal from any judgment, decree, order, or sentence passed by any
court or tribunal in Indika, except a court or tribunal established by or under a law relating to
the armed forces.

In the present case, the appellant seeks special leave to appeal against the order dated
16.11.2024 passed by the Hon’ble High Court of Biswaskar, thereby justifying the exercise of
this Court's discretionary power to grant special leave under Article 136.

This appeal is filed within the prescribed time limit and fulfills the requirements for the exercise
of jurisdiction by this Hon'ble Court.

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

STATEMENT OF ISSUES

[ISSUE I]

WHETHER THE SLP IS BARRED ON THE GROUND OF AVAILABILITY OF


ALTERNATIVE REMEDY?

[ISSUE II]

WHETHER A FILM, CERTIFIED TO BE RELEASED BY THE CENSORSHIP


BOARD CAN BE STAYED AND/OR BANNED ON THE GROUND THAT THE
SAME HURTS COMMUNITY SENTIMENTS?

[ISSUE III]

WHETHER “DISRUPTION OF PUBLIC ORDER” CAN BE A GROUND TO


CURTAIL THE PRODUCER’S FUNDAMENTAL RIGHTS TO “EXPRESS” AND
TO “PRACTICE ANY PROFESSION” AS PROVIDED UNDER ARTICLES
19(1)(A) AND 19(1)(G) RESPECTIVELY, IN ATTRACTING THE REASONABLE
RESTRICTIONS CONTEMPLATED IN ARTICLES 19(2) AND 19(6) OF THE
CONSTITUTION OF INDIKA?

[ISSUE IV]

WHETHER THE CERTIFICATE GRANTED BY THE CENSORSHIP BOARD


BAD IN LAW IN BEING AGAINST THE PRINCIPLES LAID DOWN IN SECTION
5B OF THE CINEMATOGRAPH ACT, 1952 AND IS THEREBY LIABLE TO BE
SET ASIDE?

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

STATEMENT OF FACTS

Mrinal Ghatak, a prominent filmmaker in the Republic of Indika, produced a film titled “Tale
of Two Indikas” that highlights the struggles of the Kotihar sub-caste, a Scheduled Caste group,
in the northeastern state of Biswaskar. The Kotihars, who constitute 22% of the state's
population, have faced systemic oppression by the dominant Shaita community, which makes
up 68% of the population. The film portrays graphic depictions of atrocities such as forced
labor, sexual violence, and social discrimination faced by the Kotihars. The movie was certified
with an “A” rating by the Censorship Board due to its explicit content. However, its trailer,
released on 12.08.2024, went viral and sparked a severe backlash from the Shaita community,
which accused the film of misrepresenting them and inciting communal violence. The
controversy intensified with political figures, including Biswaskar’s Chief Minister, Mr. Dawa
Basnet, condemning the film as part of an opposition conspiracy to influence upcoming
elections. Amid the mounting protests and legal challenges, including several FIRs filed against
him by Shaita leaders, Ghatak sought anticipatory bail. His initial application to the District
Court was rejected, and when he applied to the High Court, it was granted on the condition that
the film not be released in theaters. Ghatak’s legal team withdrew the bail application due to
this condition, but despite the controversy, Big Box Studios, which produced the film, remained
committed to releasing it in theaters on 29.11.2024. Simultaneously, Mr. Sanga Magar, a
Member of the Legislative Assembly from Biswaskar, filed a Public Interest Litigation (PIL)
to stop the film's release. The High Court, after hearing the case, declined to issue a stay on the
film's release, citing the Censorship Board's certification of the movie. The court acknowledged
the trailer’s controversy but did not take further action, scheduling another hearing for
14.12.2024. Dissatisfied with the High Court’s decision, Mr. Magar approached the Supreme
Court with a Special Leave Petition (SLP), urging the Court to stay the film's release. Magar
argued that the film posed a serious risk of inciting violence and disrupting public order,
potentially exacerbating communal tensions between the Shaita and Kotihar communities. The
Supreme Court has agreed to hear the matter on 23.11.2024, with Magar contending that the
High Court failed to sufficiently consider the potential harm to public order and called for an
urgent intervention to prevent the film's release. The case raises important issues of free speech,
public order, and the limits of censorship, with the Supreme Court set to hear arguments
regarding the balance between these competing interests.
MEMORIAL ON BEHALF OF APPELLANTS
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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

SUMMARY OF ARGUMENTS

ISSUE I: The Special Leave Petition (SLP) filed by Mr. Sanga Magar challenges the High
Court of Biswaskar's refusal to stay the release of the film Tale of Two Indikas, citing concerns
over public order and potential communal unrest. The SLP argues that the availability of
alternative remedies does not prevent Supreme Court intervention, especially in matters of
constitutional significance, such as public order and freedom of speech. The petitioner seeks a
review of the High Court's decision.

ISSUE II: The Supreme Court must decide whether a film, certified by the Censorship Board,
can be stayed or banned if it threatens public order or offends community sentiments. Tale of
Two Indikas, depicting caste-based atrocities, has sparked opposition from the Shaita
community in Biswaskar. Mr. Sanga Magar’s PIL seeks to halt its release, citing potential social
unrest. The case balances freedom of speech (Article 19(1)(a)) with public order (Article 19(2))
and community rights (Articles 25, 29).

ISSUE III: The Petitioner argues that Tale of Two Indikas, despite being certified by the
Censorship Board, poses a credible threat to public order due to its portrayal of caste-based
violence. Additionally, the Petitioner cites the Doctrine of Proportionality, arguing that
restricting the film’s release is a proportionate and necessary action to prevent larger societal
harm. The film’s potential to exacerbate caste tensions and incite violence in the context of
Biswaskar’s historical social divisions justifies such preventive measures. Therefore, the
Petitioner requests that the Court impose restrictions on the film’s release under Articles 19(2)
and 19(6) of the Constitution, to preserve public peace and prevent communal unrest.

ISSUE IV: The petitioner argues that the Censorship Board failed to properly apply Section
5B of the Cinematograph Act, overlooking the film's potential to incite caste-based violence
and offend public morality. Citing past cases, the petitioner claims the film's explicit violence
and portrayal of the Shaita community could normalize violence and fuel discrimination.
Additionally, the Board ignored the risks posed by the film’s promotional materials and
potential political influence. The petitioner seeks judicial intervention to suspend the film’s
certification.

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

ARGUMENTS ADVANCED

ISSUE I: WHETHER THE SLP IS BARRED ON THE GROUND OF


AVAILABILITY OF ALTERNATIVE REMEDY?

1. The present Special Leave Petition (SLP) filed by Mr. Sanga Magar is against the order dated
16.11.2024 passed by the Hon'ble High Court of Biswaskar, which did not interfere with the
release of the film "Tale of Two Indikas." The Hon'ble High Court observed that the trailer of
the film had not been censored by the Censorship Board, and the Public Interest Litigation
(PIL) filed by Mr. Magar was not stayed. The present SLP seeks to challenge the decision of
the High Court and to set aside the order, further pressing for the relief sought in the PIL,
particularly a stay on the release of the film.

2. The core issue in this case revolves around whether the SLP is barred on the ground of the
availability of an alternative remedy. This argument will demonstrate that the SLP is
maintainable and should not be dismissed on the grounds that other remedies are available, as
the SLP serves a crucial purpose in securing justice in the larger public interest.

I.1. Legal Position on Special Leave Petition and Availability of Alternative Remedy

3. The Hon'ble Supreme Court has consistently held that the availability of an alternative
remedy does not bar the filing of an SLP under Article 136 of the Constitution of Indika. Article
136 of the Constitution grants the Supreme Court the discretionary power to grant special leave
to appeal from any judgment, decree, or order of any court or tribunal in the country, except
from orders of military tribunals or courts martial.

4. In this context, it is essential to first clarify that SLPs are not barred merely due to the
availability of an alternative remedy. The Hon'ble Court, in several instances, has emphasized
that the power under Article 136 is discretionary, and the Court can entertain an SLP even when
alternative remedies are available. The availability of an alternative remedy is merely a factor
to be considered, and it does not impose a strict bar.

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

5. The landmark case of 1K.K. Verma v. Union of India (1954) 2 SCR 1159 underscores this
point. In this case, the Hon'ble Supreme Court observed that the availability of an alternative
remedy does not automatically prevent the Supreme Court from entertaining an SLP, as the
Court may choose to intervene in matters where substantial justice demands it.

6. Further, in 2Union of India v. Tushar Ranjan Mohanty, (2007) 1 SCC 255, the Court held
that an alternative remedy does not oust the jurisdiction of the Supreme Court under Article
136, as long as the case involves an issue of constitutional importance or requires the Supreme
Court's intervention to prevent injustice or uphold public interest. Therefore, the mere existence
of an alternative remedy such as an appeal or revision before a lower court does not bar the
exercise of the Court’s discretion to hear an SLP.

1.2. Grounds for Filing the SLP

7. In the present case, the Petitioner, Mr. Sanga Magar, the petitioner herein, has raised
significant constitutional issues which warrant the intervention of the Supreme Court. The
questions raised in the PIL and now in the SLP are not mere procedural concerns, but touch
upon crucial matters of public interest, social justice, and the constitutional guarantees
enshrined in Part III of the Constitution, particularly concerning freedom of speech and
expression under Article 19(1)(a) and public order under Article 19(2).

8. The High Court’s observation that the film trailer had not been censored by the board, even
though it had gone viral and was available on social media, raises concerns about public order
and the potential for widespread communal unrest.

9. The SLP seeks to address the larger issue of whether the release of the film could lead to a
serious threat to peace and public order, particularly in a sensitive state like Biswaskar, where
tensions between communities are high. The question is whether the court, in this case, should
exercise its powers under Article 19(2) to impose reasonable restrictions on speech that might
lead to disorder.

10. The matter before the Hon'ble Court, therefore, involves the examination of public interest,
the maintenance of law and order, and the balancing of competing constitutional rights, which
justifies the intervention of the Supreme Court.

1
(1954) 2 SCR 1159
2
(2007) 1 SCC 255

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

1.3. The Role of the Supreme Court in Protecting Fundamental Rights and Public Order

11. The Supreme Court of Indika has historically played a pivotal role in safeguarding public
order and fundamental rights. In 3Shreya Singhal v. Union of India AIR 2015 SC 1523, the
Hon'ble Court held that freedom of speech and expression is a fundamental right that should
be restricted only in exceptional circumstances, particularly when there is a threat to public
order. This principle is relevant in the current case, as the petitioner seeks to prevent the release
of the film which could potentially disrupt public order in the state of Biswaskar, a state already
fraught with communal tensions.

12. In 4Ranjit D. Udeshi v. State of Maharashtra (1965), the Hon'ble Supreme Court held that
where a work substantially transgresses public decency and morality, the rights to free speech
and freedom of expression must give away, especially in matters that have the potential to incite
communal violence, as alleged in the present case. The petitioner’s request to stay the release
of the film is based on the fear of incitement to violence, which is an issue of the highest
constitutional concern.

13. Thus, the SLP is necessary and should not be barred by the availability of alternative
remedies. The Supreme Court is the highest constitutional forum and is best suited to balance
competing constitutional rights and issues of public order.

14. In conclusion, the SLP filed by Mr. Sanga Magar is maintainable, despite the availability
of alternative remedies. The issues raised in the petition—pertaining to public order, freedom
of speech, and the balance of constitutional rights—warrant the intervention of the Supreme
Court. The availability of alternative remedies, including appeals or revision petitions, does not
negate the need for the Supreme Court’s discretion to intervene in matters of substantial public
interest and constitutional significance. Therefore, the SLP should be allowed to proceed, and
the order of the Hon'ble High Court should be reviewed in light of the larger constitutional
issues involved.

3
AIR 2015 SC 1523
4
AIR 1965 SUPREME COURT 881

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

ISSUE II: WHETHER A FILM, CERTIFIED TO BE RELEASED BY THE


CENSORSHIP BOARD, CAN BE STAYED AND/OR BANNED ON THE GROUND
THAT IT HURTS COMMUNITY SENTIMENTS?

15. The issue at hand before the Hon’ble Supreme Court is whether a film, which has been duly
certified by the Censorship Board of Indika (the statutory body empowered to regulate films
under the Constitution and law), can be stayed or banned by the judicial authority in the form
of High Court or Supreme Court on the ground that it is allegedly offensive to the sentiments
of a particular community.

16. The case involves the film “Tale of Two Indikas” which, though cleared by the Censorship
Board, has provoked intense opposition from the Shaita community in the state of Biswaskar,
particularly regarding its depiction of caste-based atrocities. The PIL filed by Mr. Sanga Magar
seeks to address these concerns, with the central question being whether the film’s release
should be halted to prevent potential social unrest and harm to public order. The film should be
banned emphasizing the importance of protecting community sentiments and the potential
societal harm that the release of such a film could cause.

2.1. The Fundamental Rights Involved:

2.1.1. Freedom of Speech and Expression (Article 19(1)(a)):

17. The film is a form of artistic expression and should enjoy constitutional protection under
Article 19(1)(a) of the Constitution of Indika. However, this right is not absolute and may be
subject to reasonable restrictions under Article 19(2), which permits restrictions on grounds
such as public order, decency, morality, and the sovereignty and integrity of the country. The
right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the
Constitution of Indika. This fundamental right allows individuals and entities, including
filmmakers, to express themselves freely, which includes the production and exhibition of
films. However, this right is not absolute, and it is subject to reasonable restrictions under
Article 19(2), which allows the State to impose limits on freedom of expression if it is found
to undermine public order, decency, morality, or the sovereignty and integrity of the country.

2.1.2. Protection Against Hurt to Religious or Community Sentiments (Article 25 and 29):

MEMORIAL ON BEHALF OF APPELLANTS


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TC 19 Petitioner

INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

18. The freedom of speech and expression must be balanced with the protection of public order
and communal harmony. In this case, the Shaita community has raised concerns that the film
portrays their community negatively, potentially inciting communal violence, social unrest, and
hatred. The dignity and reputation of communities are vital aspects of public order and are
worth protecting from harmful speech.

2.1.3. Right to Life and Personal Liberty (Article 21):

19. The appellant has a valid concern that the release of the film could lead to widespread social
unrest, which in turn could lead to breaches of peace, violence, and other disruptions that may
undermine public order and the security of individuals.

20. In the present case, the film "Tale of Two Indikas" delves into sensitive and contentious
issues such as caste discrimination, atrocities, and inter-community conflicts. The depiction of
such sensitive issues, particularly in an environment already fraught with social and political
tensions, raises concerns about whether the film could incite violence or disrupt the peace.

2.2. The Role of the Censorship Board and Judicial Oversight:

21. While the Censorship Board of Film Certification plays an important role in certifying films
for public exhibition, its authority is not absolute, nor is it beyond judicial scrutiny. The
Censorship Board operates within a regulatory framework that balances artistic expression with
public interests, including societal harmony, public order, and community welfare. However,
the certification granted by the Censorship Board is not a blanket approval for the unrestricted
release of a film, especially when the film has the potential to harm public order or hurt the
sentiments of particular communities. The courts, as guardians of constitutional values,
particularly those enshrined in Articles 14 (Right to Equality), 19(1)(a) (Freedom of Speech
and Expression), and 21 (Right to Life and Personal Liberty) of the Constitution, have the
authority to step in when the public interest is at stake.

22. In the landmark case of 5R. Rajagopal v. State of Tamil Nadu (1994), the Supreme Court
recognized the importance of free speech and expression but also highlighted the limitations of
this freedom when it conflicts with public order, morality, or the rights of others. The Court 23.

5
1994 (6) SCC 632

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held that freedom of speech is not an absolute right and can be restricted in the interests of
sovereignty, integrity, public order, or the protection of community sentiments.

24. Similarly, in 6Shreya Singhal v. Union of India (2015), the Supreme Court emphasized
that the power of censorship should be exercised with due regard to the right of individuals to
express themselves, but this must be balanced against the potential harm to public order.

25. Therefore, while the Censorship Board's certification of the film may have been in
compliance with technical or artistic criteria, the question remains whether the content of the
film has the potential to provoke social unrest or incite hatred against a particular community.
The judiciary has the duty to assess whether such a film should be allowed to be released,
especially in the context of community sentiments.

26. In the case of Mr. Ghatak’s film, while the Censorship Board certified the film with an "A"
certificate, it overlooked the broader implications the film could have on community sentiment
and inter-group relations. The film, according to the critics, particularly from the Shaita
community, is seen as an inflammatory depiction that unfairly targets a particular group and
attributes to them systematic atrocities. This has the potential to inflame existing tensions and
lead to civil disturbances.

2.3. Potential for Inciting Communal Tensions:

27. The contents of the film, as alleged, portray the Shaita community as perpetrators of severe
atrocities against the Kotihar community, including sexual violence, forced labour, and
systemic discrimination. Given the sensitive nature of caste-based violence and the existing
social tensions in the State of Biswaskar, the release of such a film could easily exacerbate
existing communal sentiments and incite violence. The potential for such a film to incite unrest
is not a theoretical concern but a real one, especially in a state like Biswaskar, where caste-
based divisions are deeply entrenched.

28. In 7S. Rangarajan v. P. Jagjivan Ram (1989), the Supreme Court recognized that the
freedom of speech and expression could be curtailed in the interest of public order and
preventing communal tensions. The Court held that a publication or media content that has the
potential to disturb public peace and order could be restricted even if it is in the form of an

6
AIR 2015 SC 1523
7
(1989) 2 SCC 574

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artistic or journalistic work. The key consideration, according to the Court, is whether the
content is likely to incite violence or hostility between different communities.

29. In the present case, the trailer of the film has already attracted significant criticism from the
Shaita community, with several members lodging FIRs alleging that the film could provoke
communal violence. The concerns raised by community leaders, including political figures
such as Chief Minister Dawa Basnet, further underscore the potential for the film to inflame
passions and disrupt the fragile communal harmony in the state. If the film were released, it
could trigger widespread unrest, particularly during an election year when emotions are already
running high.

2.4. The Impact on Community Sentiments and Public Order:

30. The sentiments of a community must be carefully considered when evaluating the potential
harm caused by a film. The Shaita community, which constitutes a significant majority in the
State of Biswaskar, has raised valid concerns that the film portrays them in a negative light,
potentially leading to social stigma and marginalization. The depiction of a community as
perpetrators of violent and oppressive acts can lead to the alienation of its members, thereby
further entrenching existing social divisions. This is particularly harmful in a society like
Indika, which is still grappling with the legacy of caste-based discrimination and violence.

31. In 8Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (1985), the Supreme
Court acknowledged that public order and communal harmony are legitimate grounds for
restricting speech. The Court recognized that expressions that have the potential to hurt
community sentiments and disrupt public order are subject to restrictions, even when the
content is related to artistic or creative expression. This principle aligns with the current case,
where the release of the film could have a detrimental effect on community relations in
Biswaskar, where caste tensions are already a sensitive issue.

32. Further, the Court in 9A.K. Gopalan v. State of Madras (1950) held that the state has the
responsibility to maintain public order, and it can intervene to prevent the spread of content
that is likely to disrupt the social fabric. The case established that in the event of a conflict
between individual freedom and the collective interests of society, the latter should prevail.

8
AIR 1986 SC 515
9
1950 AIR 27

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INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

33. In the present case, the film’s alleged portrayal of extreme violence, exploitation, and
systemic oppression faced by the Kotihar community could incite the Shaita community to
retaliate or provoke violent protests. The subsequent FIRs filed by Shaita leaders and MPs,
accusing Mr. Ghatak of inciting communal unrest, lend weight to this concern. Given that these
allegations are not merely hypothetical but are grounded in the present political and social
realities of the state, the court must give due consideration to the potential harm the film could
cause.

2.5. Judicial Intervention to Prevent Social Unrest:

34. The courts have the power and responsibility to intervene to prevent the release of content
that has the potential to incite violence, harm community sentiments, and disturb public order.
In 10K.A. Abbas v. Union of India (1971), the Supreme Court emphasized the need for judicial
intervention to prevent harm to public order, even when the content is artistic. The Court stated
that films could be subject to restrictions if they are likely to create disorder or harm the public
interest.

35. The Court have the constitutional responsibility to protect not only the fundamental rights
of the individuals but also the larger social fabric, which includes preventing actions that may
incite violence or hatred. The judiciary can intervene if it is established that a work, although
certified by the Censorship Board, has the potential to lead to such consequences.

36. In the present case, there is a real and present danger that the film could spark communal
violence, as indicated by the reactions from the Shaita community and political leaders. The
state government’s concerns about the potential for unrest, along with the FIRs filed by Shaita
leaders, further underscore the seriousness of the threat. The courts must act to ensure that the
release of the film does not escalate into a situation that could harm public order or lead to
violence.

37. The portrayal of Shaita community members engaging in atrocities against the Kotihar
community could inflame tensions and create an environment ripe for unrest. The fear is that
the film, especially when consumed by an already polarized audience, might not just provoke

10
AIR 1971 SC 481

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INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

emotional responses but also manifest in violent actions—either from the Shaita community in
self-defense or from the Kotihar community in retaliation.

38. The Hon’ble Court must consider the prevailing socio-political climate, where the film may
be weaponized by political groups to further fuel divisiveness. The Chief Minister of
Biswaskar, Mr. Dawa Basnet, has already alleged that the film is part of a larger political
conspiracy aimed at destabilizing the government and gaining electoral advantage. This
accusation points to the political ramifications the film may have, which could easily translate
into communal unrest.

39. Judicial action must not be reactive but proactive. The film’s content, its potential to incite
communal violence, and its portrayal of a historically marginalized community as victims of
systematic violence necessitate a proactive approach from the judiciary. It is not sufficient for
the court to wait for an incident of violence or disorder to occur. Preventative action in the form
of a stay on the release of the film would allow the judiciary to evaluate the situation in greater
detail, considering the real-time impact the film could have on communal sentiments and public
order.

40. Further, a judicial stay on the film’s release would also allow for a more thorough
investigation into the veracity of the allegations made by the Shaita community regarding the
film’s content. If the film indeed perpetuates harmful stereotypes or misrepresents facts, its
release could have irreversible consequences on inter-community relations.

41. In light of the above arguments, it is clear that the release of the film "Tale of Two Indikas"
could have serious consequences for public order and communal harmony in the State of
Biswaskar. While the Censorship Board has granted a certificate for the film, this certification
cannot be seen as a carte blanche for its release in the face of valid concerns regarding its
potential to incite communal violence and disrupt public peace. Given the sensitive nature of
caste-based issues in Indika and the existing tensions in Biswaskar, it is essential for the
Hon’ble Supreme Court to exercise its judicial authority to stay the release of the film, pending
further deliberation on the potential harm it could cause.

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ISSUE III: WHETHER “DISRUPTION OF PUBLIC ORDER” CAN BE A


GROUND TO CURTAIL THE PRODUCER’S FUNDAMENTAL RIGHTS TO
“EXPRESS” AND TO “PRACTICE ANY PROFESSION” AS PROVIDED UNDER
ARTICLES 19(1)(A) AND 19(1)(G) RESPECTIVELY, IN ATTRACTING THE
REASONABLE RESTRICTIONS CONTEMPLATED IN ARTICLES 19(2) AND
19(6) OF THE CONSTITUTION OF INDIKA?

42. The Petitioner respectfully contends that the film “Tale of Two Indikas,” while certified,
represents a credible threat to public order, particularly given its highly charged content
concerning caste-based discrimination. Articles 19(2) and 19(6) of the Constitution allow for
reasonable restrictions on freedom of expression and profession, especially when maintaining
public order and preventing communal unrest. The factual background demonstrates that the
film’s release poses a legitimate risk of inciting violence and tension within the state of
Biswaskar.

3.1. Certification Does Not Immunize the Film from Restrictions Due to Threats to Public
Order

3.1.1. Certification Provides Initial Approval, Not Absolute Immunity

43. Certification by the Censorship Board indicates the film’s suitability for viewing but does
not grant absolute immunity from restrictions if there are concrete threats to public order.
11
Ramesh Chotalal Dalal v. Union of India (1988) established that even certified films can
face restrictions if their content has the potential to incite unrest, particularly in sensitive social
climates.

44. The Petitioner argues that certification alone cannot serve as a defense against real-world
consequences. Given the explicit content portraying the atrocities against the Kotihar
community and the polarized caste relations in Biswaskar, the release of this film has clear
potential to disrupt public order, regardless of certification.

11
1988 AIR 775

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3.1.2 High Likelihood of Provoking Public Reaction Based on Content

45. The film’s portrayal of “auctioning young Kotihar girls, forced manual scavenging, and
abuse of Kotihar widows” could provoke violent reactions, especially from the Shaita
community, which constitutes a majority in Biswaskar. These graphic depictions carry a high
risk of offense and unrest, which meets the threshold for public order concerns.

46. The Petitioner argues that certification does not address the deep-seated caste tensions
specific to the Biswaskar region. The high probability that this film will offend the Shaita
community members justifies preventive action to maintain public order.

47. Certification is not a safeguard against content that may disrupt public order. Given the
film’s sensitive subject matter and the polarized social environment, certification does not
preclude restrictions.

3.2. The Film’s Content Has a Direct and Immediate Potential to Disrupt Public Order

3.2.1. Proximity Test Supports Restriction When Immediate Threats to Public Order
Exist

48. The Proximity Test established in 12Ram Manohar Lohia v. State of Bihar (1966) allows
for restrictions when there is a close, immediate connection between expression and a probable
public disorder. Here, the intense backlash from the Shaita community, political resistance from
leaders, and multiple FIRs filed against the producer demonstrate an immediate risk of violence
and unrest if the film is released.

49. The Petitioner asserts that the risk of backlash is not speculative but rooted in real political
and social responses. The film’s provocative content, when viewed within the regional context
of Biswaskar, meets the proximity test, as it carries a clear risk of inciting unrest among the
state’s dominant Shaita community.

3.2.2 Fictional Nature of the Film Does Not Exempt It from Public Order Concerns

50. Courts have held that even fictional works can be restricted if their impact on public
sentiment is likely to incite violence or unrest. In 13S. Rangarajan v. P. Jagjivan Ram (1989),

12
1966 AIR 740
13
1989 SCC (2) 574

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the Supreme Court ruled that artistic expression, though valuable, is subject to restrictions if it
threatens communal harmony. The fictional status of the film does not eliminate its capacity to
provoke outrage and disorder among the public.

51. The Petitioner argues that the film’s fictional disclaimer cannot mitigate its inflammatory
portrayal of sensitive caste issues. The Shaita community’s ongoing outrage and politically
charged response underscore that the film, despite being fictional, has an immediate and
profound impact on public sentiment that could result in public disorder.

3.2.3. Trailer Content Reinforces Imminent Threats to Public Order

52. The trailer has already triggered significant backlash across social media and public
platforms, which is indicative of the potential reaction to the full film. The Chief Minister’s
call for a ban and the public’s reaction to the trailer demonstrate that the film has already
disturbed public peace and is likely to cause further unrest.

53. The Petitioner argues that the reaction to the trailer provides a reliable preview of the public
response to the full film. The trailer’s content has fueled regional tensions, showing that
releasing the film would likely intensify these reactions, thus justifying restriction to preserve
public order.

54. The film’s content, including the trailer, demonstrates a close, immediate potential to
disturb public order, making a preemptive restriction necessary. Its fictional status does not
diminish the genuine, documented threat it poses to communal harmony.

3.3. The State’s Responsibility to Maintain Public Order Justifies Limiting Individual
Rights under Articles 19(1)(a) and 19(1)(g)

3.3.1. Doctrine of Proportionality and State’s Duty to Prevent Harm

55. The Doctrine of Proportionality, applied in 14Modern Dental College v. State of Madhya
Pradesh (2016), permits the State to impose minimal restrictions to prevent broader harm.
Here, restricting the film’s release is a proportionate measure to prevent a larger threat to public
peace and safety, given the high potential for unrest.

14
[2016] 3 SCR 579

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56. The Petitioner contends that delaying or restricting the film’s release is a necessary and
proportionate response to the immediate risk of violence. Allowing unrestricted release would
disproportionately compromise public order, making the restriction a justifiable preventive
measure.

3.3.2. Pith and Substance Doctrine Validates Restriction to Prevent Disorder, Not
Censorship

57. The Pith and Substance Doctrine permits restrictions when the State’s primary intent is to
protect public order rather than to censor. The Court in 15Anuradha Bhasin v. Union of India
(2020) emphasized that the State must take preventive action when expression poses real risks
to social stability.

58. The Petitioner argues that the State’s intention in restricting the film is to prevent harm, not
censor art. This action is aimed at preserving social stability, and with the widespread public
and political backlash, restricting the film’s release is a justified measure.

3.3.3. Historical and Social Context of Caste Relations in Biswaskar Supports Preventive
Action

59. The film’s depiction of the Kotihar community’s struggles, including caste-based atrocities,
taps into deeply rooted social divisions within Biswaskar. Historical caste tensions in the region
heighten the risk of a hostile reaction from the Shaita community, which dominates the state
politically and demographically.

60. The Petitioner argues that the sensitive context of caste relations in Biswaskar justifies
preventive restrictions. Allowing the film to release in such a climate would likely inflame
inter-community tensions, disrupting public order and peace, thus warranting State
intervention.
61. The State’s duty to preserve public order in a historically sensitive social environment
justifies limiting the producer’s Article 19 rights. Restricting the film is a proportionate and
necessary action to prevent foreseeable harm to public safety and social harmony.

62. The Petitioner respectfully submits that the release of “Tale of Two Indikas” poses a
credible threat to public order, given the film’s controversial content and the socio-political

15
AIR 2020 SC 1308

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context in Biswaskar. Certification does not negate the real, immediate risk of unrest, which is
evidenced by widespread backlash to the trailer alone. The Petitioner requests that this Hon’ble
Court impose necessary restrictions on the film’s release to preserve public peace, as permitted
under Articles 19(2) and 19(6) of the Constitution.

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INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2024

ISSUE IV: WHETHER THE CERTIFICATE GRANTED BY THE CENSORSHIP


BOARD IS BAD IN LAW UNDER SECTION 5B OF THE CINEMATOGRAPH
ACT, 1952?

63. Failure of the Board to Uphold Section 5B Principles: The petitioner asserts that the
Censorship Board failed to adhere to Section 5B, which prohibits content that offends morality,
decency, or religious sentiments. The petitioner relies on 16K.A. Abbas v. Union of India, where
the court emphasized the Board’s duty to censor content likely to provoke unrest. The film’s
certification contravenes this mandate, rendering the certificate void.

64. Inadequate Scrutiny of Communal Implications: It is argued that the Board did not
sufficiently consider the film’s potential to incite caste-based violence. The Board just ignored
the The petitioner references 17Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana,
where the court emphasized the necessity of evaluating media content for possible adverse
effects on social harmony. Given the film’s sensitive subject matter, the Board’s certification
was granted negligently.

65. Precedent of Suspending Certified Films: The petitioner contends that suspending a
certified film is within judicial authority when public interest is at risk. In 18
Bobby Art
International v. Om Pal Singh Hoon, the Supreme Court allowed the restriction of a certified
film due to its portrayal of caste-based issues, reinforcing that certification does not immunize
films from judicial scrutiny if they risk disturbing the public order.

4.1. Whether the Censorship Board failed to properly apply Section 5B standards, given
the film’s potential to incite violence

4.1.1 Interpretation of Section 5B in Light of Public Order Concerns

66. The petitioner argues that Section 5B(1) of the Cinematograph Act prohibits the
certification of films that could endanger public order. Citing 19Ramesh v. Union of India, the

16
AIR 1971 SC 481
17
(1988) AIR 1642
18
(1996) 4 SCC 1
19
(1988) AIR 775

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petitioner asserts that the Board is required to assess the potential for public disorder rigorously,
especially for films dealing with sensitive social issues. The petitioner contends that the Board
failed in this duty by ignoring the film’s likelihood of inciting unrest within the Shaita and
Kotihar communities.

4.1.2 Inadequate Consideration of Prevailing Social Conditions:

67. The petitioner submits that the Board did not account for Biswaskar's socio-political
climate, where historical tensions between the Shaita and Kotihar communities have led to
prior instances of unrest. The petitioner references 20Bobby Art International v. Om Pal Singh
Hoon, where the court recognized that films with sensitive social themes could amplify
existing community tensions. Here, the petitioner argues that the Board’s decision to certify the
film without restriction neglected the unique, potentially volatile circumstances in Biswaskar.

4.2. Whether the Board’s certification violated the “decency and morality” clause under
Section 5B(1)

4.2.1. Portrayal of Sensitive Content and Decency Standards:

68. The petitioner contends that the film includes depictions of atrocities against the Kotihar
community, such as forced manual scavenging and abuse of widows, which violate the
standards of decency and morality. 21
K.A. Abbas v. Union of India established that public
decency must be upheld in certified films, and the petitioner argues that the graphic portrayal
of oppression in this film is offensive to community standards of morality, making the
certification flawed.

4.2.2 Potential for Glorification of Violent Acts:

69. The petitioner argues that the explicit scenes in the film could inadvertently glorify or
normalize such acts, particularly if consumed without adequate context. By failing to restrict
such content, the petitioner claims that the Board allowed material that could influence
audience perceptions negatively. In 22Prakash Jha Productions v. Union of India, it was held

20
1996 (4) SCC 1
21
AIR 1971 SC 481
22
(2011) 8 SCC 372

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that films portraying violence require nuanced handling to avoid desensitization, a standard the
petitioner asserts were overlooked.

4.3. Whether the Board failed to consider the film’s potential to harm “religious
sentiments,” as outlined in Section 5B(1)

4.3.1 Sensitive Depictions of Religious and Caste Issues:

70. The petitioner argues that the film’s portrayal of the Shaita community as oppressors
indirectly harms the religious sentiments of this group, given that caste identity in Indika often
intertwines with religious beliefs. The petitioner relies on 23S. Rangarajan v. P. Jagjivan Ram,
where the court recognized that content attacking specific communities can be restricted to
prevent communal disharmony. Here, the petitioner contends that the film’s content breaches
this principle by casting an entire community in a negative light.

4.3.2 Risk of Religious Polarization and Discrimination:

71. The petitioner asserts that portraying one community as historically oppressive may foster
prejudice and discrimination against them. This polarization could destabilize the state’s social
fabric, a risk Section 5B is designed to mitigate. The petitioner argues that the Censorship
Board’s certification neglected this risk, undermining social cohesion and community integrity.

4.4. Whether the Censorship Board ignored its duty to censor promotional content,
specifically the non-certified trailer

4.4.1 Scope of the Board’s Authority Over Promotional Materials:

72. The petitioner submits that while the Cinematograph Act may primarily govern full-length
films, it implicitly extends to promotional materials (like trailers) when these materials are
likely to reach the public before the film’s release. Given the viral nature of the film’s trailer,
which was distributed online without certification, the petitioner argues that the Board failed
to recognize its duty to review or restrict promotional content when it risks creating preemptive
bias or public outcry.

23
1989 SCC (2) 574

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4.4.2 Impact of Non-Certified Content on Public Perception:

73. The petitioner asserts that the trailer’s wide distribution, coupled with its provocative
scenes, created a prejudicial impact on public perception of the Shaita community. This
dissemination without certification contravenes the spirit of Section 5B, which seeks to prevent
content likely to disrupt public order or harm sentiments. In 24Sakal Papers (P) Ltd. v. Union
of India, the court emphasized the need for regulation to maintain societal harmony—a
principle the petitioner argues should apply to all film-related content, including trailers.

4.5. Whether the film’s certification was influenced by political motivations,


compromising the Board’s impartiality

4.5.1 Alleged Political Pressure on the Board:

74. The petitioner contends that the Board’s decision may have been influenced by political
considerations favouring the film's release, as the film’s subject matter aligns with the political
agenda of opposition parties. The petitioner references 25Centre for Public Interest Litigation
v. Union of India, where the Supreme Court held that administrative bodies must act
impartially and free from external influence. The petitioner argues that any political bias
undermines the legitimacy of the Board’s certification.

4.5.2 Bias Against Community Sentiments in Certification Decisions:

75. The petitioner argues that the Board neglected to consider community sentiment as part of
its review process, favoring the film’s commercial and political value over its societal
implications. Such neglect, the petitioner argues, breaches the standards of impartiality and
public accountability required by regulatory bodies, as emphasized in 26
Maneka Gandhi v.
Union of India.

76. The petitioner respectfully submits that the Censorship Board’s certification of Tale of Two
Indikas was flawed on multiple grounds. The Board failed to properly apply Section 5B
standards, neglected to consider the film’s potential to incite violence, and ignored the risks
posed by the film’s portrayal of caste-based atrocities. Additionally, the Board failed to

24
(1962) AIR 305
25
AIRONLINE 2020 GUJ 367
26
(1978) AIR 597

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adequately assess the film’s impact on community sentiments, particularly the Shaita
community, and allowed promotional materials to be disseminated without proper scrutiny. The
petitioner also raises concerns about the potential influence of political motivations on the
Board’s decision-making process. For these reasons, the petitioner requests that this Hon’ble
Court exercise its authority to stay the film’s release, pending a thorough review of the public
order and community sentiment implications.

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PRAYER

In light of the arguments presented, the counsel(s) for Appellant, respectfully pray that this
Hon'ble Court be pleased to grant the following reliefs:

1. TO GRANT AN INTERIM STAY on the release of the film Tale of Two Indikas
scheduled for 29.11.2024, until the final disposal of this petition, in the interest of public
order, communal harmony, and to prevent the risk of incitement of violence and social
unrest in the state of Biswaskar.
2. TO REVIEW OR SUSPEND THE CERTIFICATE granted by the Censorship Board
under the Cinematograph Act, in light of the film’s potential to harm public order and
community sentiments, particularly in the context of the existing social tensions
between the Shaita and Kotihar communities in Biswaskar.
3. TO DIRECT the relevant authorities to conduct an urgent and comprehensive inquiry
into the likely impact of the film’s release on public order, including an assessment of
its potential to inflame caste-based tensions, disrupt communal peace, and incite
violence in the state of Biswaskar.
4. TO DIRECT the Censorship Board to examine and consider the uncensored trailer of
the film, which has gone viral and is alleged to have the potential to provoke communal
discord, before any further public exhibition of the film.

To grant any other reliefs as deemed fit by this Hon’ble Court to safeguard the
larger public interest, preserve social harmony, and protect the constitutional values of
public order, morality, and decency, particularly in the context of the sensitive issue of
caste-based discrimination depicted in the film.

And for this act of kindness and justice, the Appellant as duty
bound shall ever pray.

Counsels for the Appellant

MEMORIAL ON BEHALF OF APPELLANTS


Page 30 of 30

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