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THE Writ Petition Filed Before THE Upreme Court OF Rashtra IS NOT Maintainable
THE Writ Petition Filed Before THE Upreme Court OF Rashtra IS NOT Maintainable
THE WRIT PETITION FILED BEFORE THE SUPREME COURT OF RASHTRA IS NOT
MAINTAINABLE
1. It is humbly submitted before the Hon’ble Supreme Court that the present Writ
Hon’ble court that the jurisdiction under Art. 32 of The Constitution of Rashtra
[“Const.] can be invoked only when Fundamental Rights are violated. It has been held
that if a right, other than a Fundamental Right is claimed to be violated then such
2. In the instant case, it is submitted that no Fundamental Rights of the Petitioner have
been violated, therefore, this petition shall not be considered. Further, the instant Writ
Petition is not maintainable on the grounds that firstly [1.1], the nature of the Writ
Petition is not maintainable, secondly [1.2], the Petitioner has no locus standi, thirdly
[1.3], there has been no infringement of fundamental rights, and fourthly [1.4], that
3. It is humbly submitted before the Hon’ble Supreme Court that the Govt. has abided
by the Order of the Home Ministry of the Union Government of Rashtra. The
‘procedure established by law’. The Petitioners have not been able to show any
violation their fundamental rights and a writ petition which fails to show the violation
management which could cause widespread panic among the citizens, the petitioner is
acting with mala fide intentions and the prima facie motive behind this petition would
5. It is humbly submitted before the Hon’ble Court that the petitioners in the present
case do not have the locus standi to file the petition. The Counsel for the respondents
would like to humbly submit before the Hon’ble Court that the purpose for which Art.
32 can be invoked is solely for the enforcement of fundamental rights which means
that the violation of a fundamental right is sine qua non for the exercise of rights
conferred under Art. 32.3 It is to be noted that in the instant case there has been no
duly followed all the proper procedures as established by law and have ably
6. Through the course of time, it has been seen that the judiciary has relaxed the scope of
locus standi in order to ensure that fundamental rights can be enforced as much as
mandatory condition for filing of a writ petition that shall be maintainable and without
7. The counsel for the respondents maintains that the petitioners do not have the locus
standi to file the present petition because they fail to prove the violation of
3
Federation of Bar Association in Karnataka v. Union of India, AIR 2000 SC 2544
4
Dr. Upendra Baxi v. State of Uttar Pradesh, (1983) 2 SCC 308 (India).
fundamental rights. Hence, the Writ Petition should be dismissed; it need not be heard
on merits.5
8. It is humbly submitted before the Hon’ble Supreme Court that in the instant Writ
Petition, the petitioner has failed to conclusively prove the violation of fundamental
rights, if any. It is humbly submitted before the Hon’ble Court that Art. 32 of the
Const. can be invoked only when there is an infringement of a fundamental right. The
Supreme Court in the case of Hindi Hitrashak Samiti v. Union of India, 6 has held that
“the jurisdiction conferred on the Supreme Court under Art. 32 is an important and
integral part of the Const. but violation of a fundamental right is the sine qua non for
D.C. Wadhwa v. State of Bihar,8 and Sarojini Ramaswami v. Union of India,9 the SC
did the same as it held the aforementioned cases as ones of great constitutional
importance; there was no other forum; and there was no other mechanism. 10 It is
therefore humbly submitted before this Hon’ble Supreme Court that the instant case
does not satisfy any of the criteria that the SC laid down while entertaining these Writ
Petitions. It does not pose a question of constitutional importance and it does have
5
Charan Lal Sahu v. Giani Zail Singh, AIR 1984 SC 309 (India).
6
AIR 1990 SC 851 (India).
7
AIR 1958 SC 532 (India)
8
AIR 1987 SC 579 (India).
9
AIR 1992 SC 2219 (India)
10
MP JAIN, INDIAN CONSTITUIONAL LAW 1355 (7th ed. 2016).
other forums and mechanisms for its resolution. The Respondents humbly submit that
there has been no violation of Art 19, Art. 14 and Art. 21.
10. It is humbly submitted before the Hon’ble Court that there are alternative remedies
available to the petitioner and as a result of which this petition is not maintainable. 11
Filing a writ petition where there is an alternative remedy available is an abuse of the
procedure laid down by the law and wastage of the time of the Hon’ble Apex Court.
The Supreme Court in the case of Lokesh Katara v. High Court of Gujarat, 12 refused
to entertain a writ petition filed under Art. 32 stating that the petitioners in the case
had a remedy available of moving the High Court under Art. 226, leaving it open to
11. It is humbly submitted before the Hon’ble Apex Court that Art. 226 can be invoked
not only for the enforcement of Fundamental Rights but for ‘any other purpose’ as
well.13 While the Supreme Court’s power under Art. 32 is restricted, the High Court’s
infraction of his Fundamental Right should approach the High Court first rather than
the Supreme Court in the first instance. The reason given for this view was that there
13. The court is bound to take cognizance of the petition if his fundamental rights have
been infringed, but only after he has exhausted all existing remedies provided by law
and has not obtained any proper redress. But in this case the petitioner has not
11
Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192 (India).
12
(2017) 2 SCC 427 (India).
13
MP JAIN, INDIAN CONSTITUTIONAL LAW 1355 (7th ed. 2016).
14
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159 (India).
exhausted his means of legal aid and same for redress of his disputes, directly to
Supreme Court.
14. It is humbly submitted before the Hon’ble Supreme Court that the Petitioner can seek
remedy under Art. 226 of the Constitution of Rashtra by approaching the concerned
High Court in a similar way. A letter addressed to the High Court Chief Justice could
also result in the invoking of its epistolary jurisdiction. In the foregoing arguments it
has already been discussed that the High Court provides an equally efficacious
remedy to the petitioner. The Petitioner fails to prove that the SC is the only remedy
2. Whether the order issued by the Government of Rashtra was in violation of the
15. The Order sought by the Govt. to prohibit the state governments, authorities and
person on publication of the news regarding NOVID- 19 is valid as per the provisions
15
Himmatlal v. State of Madhya Pradesh, AIR 1954 SC 403 (India)
of the Const. and ICCPR. The prevailing conditions at the time when the order was
passed by the Govt. were that of a global pandemic caused by a deadly virus known
as NOVID-19. The world being hit by the virus sometime around the end of 2019,
and the virus eventually entering the borders of Rashtra around the end of January
2020, steps had to be taken by the Government of Rashtra for the proper prevention
and management of the virus, all while keeping in mind public interest and public
order.
16. The Order satisfies the three-part test prescribed under Art. 19(2) of the Const. and
2.1.1. The restrictions satisfy the three-part test prescribed under Art. 19(2) of the
17. State Parties must guarantee the right to freedom of expression, including the right to
seek, receive and impart information and ideas of all kinds. However, these rights are
not absolute in nature and are subject to certain restrictions under the ICCPR and the
UDHR.16 Moreover, in Dharam Dutt v. UOI,17 the Hon’ble Court laid down test to
assess the validity of restrictions imposed on freedom of speech and expression.18 This
test has been widely accepted and used in multiple judgments across jurisdictions.19
16
Toby Mendel, Restricting Freedom of Expression: Standards and Principles, Centre for Law and Democracy
(Aug. 18, 2021, 10: 03 PM), http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-
Restrictions-onFOE.pdf
17
Dharam Dutt v. UOI
18
Commission Regulation 2016/679, General Data Protection Regulation, art. 17(1)(c), 2016 O.J. (L 119);
Gaweda v. Poland, App. No. 26229/95 Eur. Ct. H.R. ¶ 39 (2002); Feldek v. Slovakia, App. No. 29032/95 Eur.
Ct. H.R. (2001); Lohe Issa Konate v. Burkina Faso, App. No. 004/2013 Afr. Ct. H.P.R. ¶ 125 (Dec. 5, 2014).
19
Sunday Times v. United Kingdom, App No. 6538/74 30 Eur. Ct. H. R. (1979) [hereinafter Sunday Times];
Lingens v. Austria, App. No. 9815/82 Eur. Ct. H.R. ¶¶ 39-40 (1986); Thorgeirson v. Iceland, App. No.
13778/88 Eur. Ct. H.R. ¶ 63, (1992).
18. The first limb of the test requires that the restriction must be provided for by law. A
citizens to reasonably foresee the consequences which a given action may entail. 20
The term ‘law’ must be flexibly interpreted to encompasses administrative, 21 civil and
criminal laws, as well as a Const. 22 It is also clear that in common law systems, legal
norms developed through the case law meet the requisite standard. 23 The restrictions
19. Accordingly, the provisions of Art. 19 provide for reasonable restrictions of public
with government’s data but also, was on the stage to create a widespread panic among
the citizens of Rashtra. Therefore, the restrictions sought by the govt are justified
under Art. 19 of the Const. for the maintenance of public order and public health in
the region.
20. The second part of the test requires that the restrictions must be for the protection of
legitimate and overriding interests of respect for the rights and reputations of others,
protection of national security, public order, public health or morals. This list of
20
Sunday Times, Id. at ¶ 49; Kokkinakis v. Greece, App. No. 14307/88 Eur. Ct. H.R. (1993); Malone v. The
United Kingdom, (1984) 7 EHRR 1; Mueller v. Switzerland, (1988) 13 EHRR 212; Connally v. General
Construction Co., 269 U.S. 385, 391 (1926); Coates v. Cincinnati, 402 U.S. 611 (1971); Kartar Singh v. State of
Punjab, (1994) 3 SCC 569 (India).
21
Gooding v. Wilson, 405 U.S. 518 (1972), p. 522.
22
Refah Partisi (The Welfare Party) and others v. Turkey, App Nos. 41340/98, 41342/98, 41343/98 and
41344/98 Eur. Ct. H.R. ¶ 58 (2003).
23
Observer and Guardian v. United Kingdom, App. No. 13585/88 Eur. Ct. H.R. ¶ 50-53(1991).
24
Mukong v. Cameroon, Comm. No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (Aug. 10, 1994).
purpose and effect of restrictions are relevant in assessing the legitimacy of the aim to
be pursued by the restrictions.25 It is settled law that the anticipated danger should not
should be intrinsically dangerous to the public interest. So is the situation in the case
under consideration. The “community interest” here being the safeguarding of public
health, and securing each individual’s right to live a healthy and illness- free life as
global pandemic by the World Health Organisation, endangering human life, it would
be erroneous to say that the anticipated danger is remote, conjectural or far- fetched,
and that the measures taken by the Government of Rashtra do not have a direct and
proximate nexus or a reasonable connection between the restriction imposed and the
21. In the case at hand, The restriction imposed is neither arbitrary and of an excessive
reasonableness, instead lays down regulatory measures rather than restrictive ones in a
dynamic, pragmatic and elastic fashion to preserve public health and order, while
trying to minimize and mitigate divergent and inconsistent statistics and information
as much as possible as they lead to widespread panic amongst people including the
medical fraternity and was derailing the efficient management of the NOVID- 19
protecting the public health and public order of the citizens of Rashtra.
25
R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295 (Can.)
22. The necessity element of the test presents a high standard to be overcome by the State
society’, it must correspond to a pressing social need. 27 The restrictions imposed must
assessed on the grounds of the negative impact caused by the limiting measure upon
the enjoyment of the right and the ameliorating effects of the limiting measure.29
23. The right to freedom of speech and expression includes the right to seek and receive
information.30 But this right is subject to limitations under international law. While the
publication of true and impartial news is an established duty of journalists, govts have
the right to restrict information when it is provided by law and the disclosure threatens
to cause substantial harm or the harm to the public is greater than the public interest in
having the information.31 The restrictions should be limited to matters including law
enforcement, national security, public or individual safety, and the effectiveness and
24. The reports published by various media organizations lacks evidence and proof for its
authenticity. The circulation of inconsistent news would further aggravate the already
26
Supra note 16.
27
Sunday Times, supra note 4, ¶ 62; Klass v. Germany, App. 5029/71 Eur. Ct. H.R. ¶ 59 (1978); Handyside,
supra note 1; Merits, Reparations and Costs, Palamara Iribarne v. Chile, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 135, ¶ 126 (Nov. 22, 2005); Preliminary Objections, Merits, Reparations and Costs, Uson Ramirez v.
Venezuela, Judgment, (ser. C) No. 207, ¶ 55 (Nov. 20, 2009); Waldock, H, The Effectiveness of the System set
up by the European Convention on Human Rights, (1980) 1 HRLJ 1, p. 9; Virginia v. Black, 538 U.S. 343
(2003); Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 620 (India).
28
Velichkin v. Belarus, Comm. No. 1022/2001, U.N. Doc. CCPR/C/85/D/1022/2001 (Nov. 3, 2005) [hereinafter
Velichkin].
29
Burgess v. Australia, Comm. No. 1012/2001, U.N. Doc. CCPR/C/85/D/1012/2001 (Oct. 21, 2005).
30
Martin v. Struthers, 319 U.S. 141, ¶ 65 (1943); Tinker v. Des Moines School District, 393 U.S. 503, ¶45
(1969); Lovell v. City of Griffin, 303 U.S. 444, ¶ 56 (1938); European Convention on Human Rights art. 10,
Nov. 4, 1950, 213 U.N.T.S. 22; International Covenant on Civil and Political Rights art. 19, Dec. 16, 1966, 999
U.N.T.S. 171.
31
Art. 19, The public's right to know principles on freedom of information legislation, (1999), available at https:
//www.art19.org/data/files/pdfs/standards/righttoknow.pdf.
32
Id.
need to prevent the circulation of inconsistent news as it could incite widespread
2.1.2. The order passed by the Government of Rashtra is in consonance with the
3. The freedom of speech and expression, as enshrined in Art. 19 of the Const. is the
matrix, the indispensable condition of nearly every other form of freedom, and is the
wellspring of civilization, without which personal liberty and liberty of thought would
shrivel. This freedom, under its purview, ensures a citizen, the right to know, and the
Thalappalam Ser Cooperative Bank Limited v. State of Kerala, 33 this right, just like
25. According to the case of People’s Union for Civil Liberties (PUCL) v. Pukhrem
Sharatchandra Singh,34 the right to receive information does not carry with it an
security of the State. Generally, the exemptions/exceptions under the laws referred to
security (including defence) and public safety among the plethora of other exemptions
available to them.
26. For instance, a country such as the Rashtra with a huge population base, which was
quite harshly hit by the global pandemic, encountered major issues which were
exacerbated by the spread of misinformation and fake news. These posed as primary
hindrances in the effective management and prevention of the spread of the deadly
virus. In order to prevent any such hurdles in the preservation of public order and
33
34
public health, the Government of Rashtra quite timely and effectively imposed
27. Moreover, as stated by the Supreme Court in Romesh Thapar v. UOI,35 ‘public order’
enforced by the Government which they have established.” The measures passed by
the Government in the case at hand aim to exactly do so through its intricately laid
down procedure, hence not only does it pass the test of reasonableness, but it also
28. In Inter Media Publishing Ltd., Calicut v. State of Kerala & others, 36 there was a
integrity and public order. The Court held that in the absence of a const. of any
the case at hand, a special mechanism and an elaborate procedure which lays down
that the Ministry of Health, Government of Rashtra, within the time frame of a week
from the date of issuance of orders must nominate and designate an Officer, not below
the level of Joint Secretary, as the Designated Officer for the purposes of Clause 3
Upon receipt of a request for prior written permission under Clause 3, the Designated
35
36
Officer shall evaluate the request within three days and either grant or refuse it for
2.1.3. The order passed by the Government of Rashtra does not interfere with the
Freedom of Press.
29. The Supreme Court has emphasised that the freedom of the press is not so much for
the benefit of the press as for the benefit of the general community because the
community has a right to be supplied with information and the government owes a
duty to educate the people within the limits of its resources. Therefore, the Govt. is
quite correct in terms of the measures taken by them. This is because allowing
inconsistent and divergent statistics and information would rather act in contrary to
the preservation of public order and public health as well as the effective and efficient
management prevention of the pandemic. This is quite evident from Para 6 of the
Moot Proposition which states that such data led to widespread panic among the
public including the medical fraternity. Hence, it can be said that this aforementioned
benefit of the public which flows from the freedom of press is being curtailed in the
current situation.
30. According to the cases of Bennett Coleman v. UOI37 and Babulal v. State of
foresee the inception and the end of it, hence justifying the absence of a limited period
arguments and the annexure released by the Govt., a detailed and comprehensive
37
38
procedure has already been established which would ensure the upholding of Art. 19
of the Const. while also keeping in mind the tenets of non-arbitrariness, justice, equity
31. It is most humbly submitted that the significance and sweep of Article 21 make the
deprivation of liberty a matter of grave concern and permissible only when the law
and State necessity.39 Before a person is deprived of his life and personal liberty, the
procedure established by law must be strictly followed, and must not be departed from
to the disadvantage of the person affected.40 Liberty of a person should not ordinarily
be interfered with unless there exist cogent grounds.4145 Therefore, the Order must be
32. Reasonableness postulates intelligent care and predicates that deprivation of freedom
punitive purpose but for the bifocal interests of justice to the individual involved and
society affected.42 The UK Supreme Court has held that ‘there is a need to maintain a
fair balance between the general interest of the community and the personal right of
33. It is humbly submitted before this Hon’ble Court that the liberty of an individual is
process of law, which is administered keeping in mind the collective interest of the
39
Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240.
40
Bashira v. State of Uttar Pradesh, AIR 1968 SC 1313; Narendra Purshotam Umrao v. B.B. Gujral, AIR 1979
SC 420.
41
Narendra Singh v. State of M.P., 2004 Cri LJ 2842
42
Babu Singh v. State of U.P., (1978) 1 SCC 579.
43
Supra note 39.
44
Subhash Kashinath Mahajan v. The State of Maharashtra, (2018) 4 SCALE 661.
community.45 It is possible that in a given situation, the collective interest of the
community may outweigh the right of personal liberty of the individual concerned.46
34. It is humbly submitted before the Hon'ble Supreme Court that in Kartar Singh v. the
State of Punjab,47 this Court held that procedure contemplated by Art. 21 is that it
must be "right, just and fair" and not arbitrary, fanciful or oppressive. The expression
law.48 Art. 21 envisages a fair procedure.49 The liberty of a person should not
35. It is thus most humbly submitted before the Hon'ble Supreme Court that in the instant
case, the State does not violate the fundamental rights of the people of Rashtra by
In the landmark case of Indrajit Barua v. State of Assam, 51 when the ADAA, 1955
(Assam Act) and the AFSPA, 1958 (Central Act) were challenged because they
condoned abuse of State powers, the Delhi High Court while upholding both the Acts
also held, that what is just fair and reasonable procedure established by reasonable
36. Moreover, a law is regarded as wholesome and beneficial if it ensures the liberty of a
more significant number of the members of the society at the cost of a few. 52 If, to
save a large number of lives from the attack of NOVID- 19, certain restrictions are
45
Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684.
46
Masroor v. State of U.P., (2009) 14 SCC 286.
47
(1994) 3 SCC 569 (India).
48
MP JAIN, INDIAN CONSTITUIONAL LAW 1128 (7th ed. 2016).
49
Ranjitsingh Brahmajeetsing Sharma v. the State of Maharashtra, (2005) 5 SCC 294 (India)
50
Id.
51
AIR 1983 Del 513 (India).
52
Id.
imposed on the dissemination of information to prevent widespread panic, then it is
reasonable in nature.
37. It is humbly submitted before the Hon'ble Supreme Court that it is the duty of the
State to preserve law and order.53 The term ‘public order’ and ‘public health’ are not
vague.54 It is the State's duty to see that the rule of law enunciated by Art. 21 is
available to the most significant number. In the instant case, since the State has
constitutional duties to uphold the multitude of rights of its citizens, maintain public
law and order, and work in the greater social interest, the procedure established by
law in the instant case is just, fair and fair reasonable under Art. 21 of the Constitution
of Rashtra.
2.3. The order passed by the Government of Rashtra is well within the ambit of the
principle of Federalism.
38. As a component of the Federal Structure of the Const., legislative powers have been
divided between the Parliament and State Legislatures. 55 The competing legislatures
may not infringe upon the each other’s legislative domain;56 though Parliament is
legislatively supreme to the State Legislatures. 57 The constitutional vires of the Order
said provisions are not ultra vires the Constitution since: [2.3.1.] the ‘pith and
substance’ of the Order lies outside the legislative domain of the State Legislatures
and; [2.3.2] Residuary Powers with respect to legislative competence is vested with
the Parliament.
53
Indrajit Barua v. Assam, AIR 1983 Del 513 (India)
54
MP JAIN, INDIAN CONSTITUIONAL LAW 1130 (7th ed. 2016).
55
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia
& B. P. Banerjee eds., Vol. 8, 8th ed. 2012, p. 8626.
56
State of Kerala and Ors. v. Mar Appraem Kuri Company Ltd. and Anr., AIR 2012 SC 2375, ¶12.
57
GRANVILLE AUSTIN, THE INDIAN CONSTITUTION – CORNERSTONE OF A NATION, 2nd ed. 1999, p. 195.
58
Factsheet, ¶ 10.
2.3.1. The Order falls outside the legislative competence of the states
39. The doctrine of ‘pith and substance’ is one of the key principles of interpretation used
to construe entries classified under the three lists of the Seventh Schedule of the
purview of one legislature or the other, the pith and substance of the enactment is to
be looked into.60 If the ‘true nature and character’ of a legislation falls outside the
permissible limits assigned to the respective legislature then such law is ultra vires the
constitution.61 The relevant factors which must be considered in order to ascertain the
pith and substance of a statute are: (i) the object and purpose; (ii) the scope and; (iii)
the effect of the provisions.62 The object and purpose of the impugned section does
40. We must refer to the various legislative fields under the seventh schedule to ascertain
which relevant subject-matters fall under the exclusive competence of the States. 63
The two entries in the State List that are remotely related to the subject of disaster
management are entry 14, which deals with agriculture, including protection against
pests and plant diseases, and entry 17 which deals with water, including water supply,
been related to entry 23 (social security and social insurance) in the Concurrent list of
the Constitution and the States would also be able to make their own legislation on the
subject.
59
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia
& B. P. Banerjee eds., Vol. 10, 8th ed. 2012, p. 11731.
60
Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC 862 at ¶ 88; Prafulla Kumar Mukherjee
and others v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60 at ¶¶ 35-38.
61
State of Maharashtra v. Bharat Shanti Lal Shah and Ors., (2008) 13 SCC 5 at ¶ 30.
62
Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors., (2011) 3 SCC 139 at ¶ 64; A. S.
Krishna v. State of Madras, AIR 1957 SC 297 at ¶16.
63
M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010, p. 533.
41. Due to divergent and inconsistent statistics related to NOVID- 19 there was a threat
perception for the widespread panic among citizens and for that purpose the Central
submitted that the primary objective of impugned Order is to prevent the widespread
2.3.1.1. The scope of the impugned section relates to subjects outside the
42. The meaning and import of the provisions of an Act have to be enquired into in order
to determine its scope.64 The scope of a parliamentary statute must not fall within the
43. It is humbly submitted before the Hon'ble Supreme Court that according to Art.
254(1) if any provision of state law is repugnant to a provision in a law made by the
the matters in the Concurrent List, the Parliamentary law or the existing law prevails
over the State law. It does not matter whether the Parliamentary law has been enacted
before or after the law. It is contended that the Parliament is empowered to make laws
on the subject under List 23 of the Concurrent List. Thereby, it is submitted that the
scope of the said provision lies outside the legislative ambit of State Legislatures.
2.3.1.2. The Effect of the impugned section relates to matter outside the legislative
44. Reflecting the object and purpose of the Order, the ostensible effect which the
provision would have would be on matters within the auspices of the Concurrent List
64
Orissa Cement Ltd. (M/s) v. State of Orissa, AIR 1991 SC 1676 at ¶ 37.
65
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431 at ¶ 25.
which is Social Security. It is therefore submitted that the ‘pith and substance’ of the
impugned section lies outside the legislative domain of the State Legislatures.
2.3.2. The Residuary Powers with respect to legislative competence is vested with the
Parliament
45. Entry 97 of List I read with Article 246 and 248 of the Constitution provide for the
the auspices of any Entry within the three Lists, the power to legislate with regard to
such subject-matter vests with the Parliament. 67 In the event that legislative
interpret Entries under List II too broadly in order to uphold the legislative
competence of the State, the necessary competence must then vest with the
are incompetent to pass legislation with respect to the subject-matter of the Disaster
Management. Thereby, it is humbly submitted that the said order is intra vires the
Const. and that Parliament has not encroached upon the constitutional powers of the
States.
46. It was held by the Hon’ble Court in Bachan Singh v. the State of Punjab, 70 that the
rule of law which permeates the entire fabric of the Const. excludes arbitrariness.
66
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia
& B. P. Banerjee eds., Vol. 8, 8th ed. 2012, p. 8985.
67
Second G.T.O. v. Nazareth, AIR 1971 SC 999 at ¶ 10; Mittal v. Union of India, AIR 1983 SC 1 at ¶¶ 70-72.
68
International Tourist Corpn. v. State of Haryana, AIR 1981 SC 774, ¶ 7.
69
State of West Bengal v. Kesoram Industries, (2004) 10 SCC 201, ¶ 251.
70
AIR 1980 SC 898 (India).
Broad and absolute discretionary powers are given to administrative authorities are an
antithesis of the spirit of Art. 14. It is most humbly submitted before this Hon'ble
Supreme Court that the Section 6 of the Disaster Management Act, 2005 [“Act”] is
47. It is humbly submitted before the Hon'ble Supreme Court that the impugned Section
authorities. Thus, it does not attract Art. 14. In the impugned Act, the State has
48. Regarding laying down principles or guiding norms, it has been held, for instance,
that it is not essential that the same section in the Statute which confers the power
should also lay down the rules of guidance or the policy for the administrator to
follow. If the same can be gathered from the preamble or the extended title of the
Statute and the other provisions therein, the discretion would not be regarded as
uncontrolled or unguided, and the Statute in question will not be invalid. 71 At times,
even vague policy statements to guide administrative discretion have been held by this
Court as complying with Art. 14.72 The State has mentioned the object sought to be
achieved by the Order in ¶6, that the restrictions will be imposed only on those
71
MP JAIN, INDIAN CONSTITUIONAL LAW 913 (7th ed. 2016).
72
Chandrakant Saha v. Union of India, AIR 1979 SC 314; Organo Chemical Industries v. Union of India, AIR
1979 SC 1803; New India Industrial Corp. Ltd. v. Union of India, AIR 1980 Del 277; R.R. Verma v. Union of
India, AIR 1980 SC 1461 (India).
information which are inconsistent with the official statistics to avoid widespread
panic. In furtherance of same, the State has further defined the procedure which will
be followed while allowing or rejecting the publication of that particular news. The
policy mentioned is not vague and cannot qualify as conferring of absolute discretion.
49. Furthermore, this Court has shown a good deal of tolerance and deference towards
conferment of discretion in the past. Several cases in which the conferment of broad
discretion has been upheld on grounds such as the statutory provision conferring
power.73 In the instant case, while broad discretionary power may have been
50. It is humbly submitted before the Apex Court that the Regulation itself does not suffer
from any such vice. However, the administrative authority may implement it in a
discriminatory manner or may not follow the policy or principle laid down in the Act
to regulate the discretion it does not satisfy Art. 14. In the instant case, there has been
no "arbitrary application of the laws." there has been a precise classification, i.e., what
51. Moreover, it was held in Pannalal Binjraj v. Union of India 74 that the administration
would have a good defence if it can prove bona fides. The object sought to be
achieved by the impugned order is a noble one, i.e., to prevent the spread of NOVID-
73
Sukhwinder Pal Bipan Kumar v. the State of Punjab, AIR 1982 SC 65 (India); Shiv Dutt Rai Fateh Chand v.
Union of India, AIR 1984 SC 1194, 1212 (India).
74
AIR 1957 SC 397 (India).
52. This Hon'ble Court has held that arbitrary state action infringes Art. 14. 75 If a law is
arbitrary or irrational, it will fall foul of Art. 14. This Court also held in Style 76 and
Dolly Chanda77 among others, state actions should be guided by reason and not
humour, whim, the caprice of personal predilections of the person entrusted with the
task on behalf of the State, and exercise of all powers must be for public good instead
of being an abuse of power. In the instant case, it is submitted that the State is guided
by both public good and reason. The validity of the legislation draws from the fact
that it was forwarded in accordance with citizens' public interests and rights. It is not
arbitrary but rather just, fair, and reasonable. It provides a reasonable classification
and procedure, which is. In light of the spread of NOVID- 19, which can lead to
widespread panic across the nation and take away the many fundamental rights of the
Rashtra citizens enshrined under Part III of our Constitution, this Regulation is in
53. Lastly, the mere fact that some hardship or injustice is caused to someone is no
ground to strike down the rule altogether if otherwise, the rule appears to be just, fair
Whether the order issued by the Government of Rashtra was ultra vires with respect to the
54. It is humbly submitted before the hon’ble court that as per the provision of
section 6(2)(a) of the act, the National Authority is responsible for laying
down the policies on disaster management for ensuring timely and effective
75
A.P. Aggarwal v. Govt. of NCT of Delhi, AIR 2000 SC 205 (India).
76
(Dress Land), (Style (Dress Land) v. Union Territory, Chandigarh (1999) 7 SCC 89, 100 (India)).
77
Dolly Chanda v. Chairman, Jee, (2005) 9 SCC 779 (India).
78
A.P. Coop. Oil Seeds Growers Federation Ltd. v. D. Achyuta Rao, (2007) 13 SCC 320 (India).
response to disaster without prejudice to generality of the provisions of sub-
section (1), which authorises the government to lay down the policies, plans
and guidelines for disaster management which incorporates the issuing of the
situation thus helps in mitigation of the disaster situation. In the instant case,
clause 1(A) of the order is thus within its authority to give orders to regulate
55. It is humbly submitted before the hon’ble court that the provision of section
6(2)(a) of the act, the National Authority is responsible for laying down the
health infrastructure for treatment, etc, mentioned in the order because this
on such data and inconsistency with respect to the same could disturb the
The NDMA in the instant case through clause 1(B) of the order has done the
56. It is submitted before the apex court that section 6(2)(i) of the act authorises
pandemic and thus the order is within the scope of the section 6(2)(i).
57. It is humbly submitted before the Hon’ble court that Clause 2 of the order is
not ultra vires with respect to the section 22(2)(n) as the clause provides
central government the power to disseminate information but does not restrict
the state government to disseminate information and the state could do the
same after going through the official channel so that the information could be
verified and the panic which was widespread due to the inconsistent and
still has the responsibility to act as the coordinating and monitoring body
management of disaster in the State as per section 22(1) of the act and
58. It is submitted that the order issued authorises the Central government with
could be put forth as per clause 2 of the order but after getting approval from
per clause 3 and 4 of the issued order, any verified information could be
disseminated. The aforementioned clauses are not ultra vires with respect to
the section 24(k) of the act which says that for assisting and protecting the
information.
59. This Order includes that all forms of media, including social media are
of the DMA which mentions about the directions which are given to media
disaster. Thus, the clause is intra vires with respect to the provision of the act.
60. It is most humbly submitted before the Hon’ble court that clause 4 which
information is well within the ambit of section 69 of the DMA, and thus intra
vires as the said section implies that the National Executive Committee by
specified in the order, such of its powers and functions under this Act as it