Lex Omnia 2015 Petitioner.pdf

TEAM CODE: 31

3rd LEX OMNIA MOOT COURT COMPETITION, 2015

BEFORE THE HONOURABLE SUPREME COURT OF PAMMU

WRIT PETITION (S) CIVIL NO (S) _____/2015 _____/2015 UNDER ARTICLE 32 OF THE CONSTITUTION OF PAMMU

IN THE MATTER OF MATTER OF

COMMON CAUSE & ANR ….…............................... .................................... .............P .P ETITIONER (S)

VERSUS

ESPONDENT UNION OF PAMMU………………………………………... R ESPONDENT

.

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER


TABLE OF CONTENTS TABLE OF CONTENTS ……………………………………………………………………………. II INDEX OF ABBREVIATIONS ………………………….………………………………………… ....III

INDEX OF AUTHORITIES……………………………….………………………………………… IV

STATEMENT OF JURISDICTION…………………………………………………………………. VIII

STATEMENTS OF FACTS………………………………………………………………….….... ....IX

STATEMENT OF ISSUES …………………………………………………………………….……

...X

SUMMARY OF ARGUMENTS……………………………………………………………….…….. .XI

ARGUMENTS ADVANCED………………………………………………………………….……… 1

1.

EPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT) ORDINANCE, WHETHER THE R EPRESENTATION ITVICK 2014 IS ARBITRARY IN NATURE AND AFFECTS THE RIGHT OF MR .M .MOOTKAR R ITVICK OSHAN TO CONTEST THE ELECTIONS…………………………………………………..1 R OSHAN

2. WHETHER THE TELECOM ORDER ONLY TARGETING THE WEBSITES PROM OTING “REVENGE PORN” IS VALID……………………………………………………………....6

3. WHETHER GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS CONSTITUTIONALLY VALID …………………………………………………………. .…10

PRAYER FOR RELIEF…………………………………………………………………………........ XII

II


TABLE OF ABBREVIATIONS

¶

Paragraph Number

&

And

AIR

All India Reporter

Anr.

Another

DPSP

Directive Principles of State Policy

IT Act

Information Technology Act

IPC

Indian Penal Code, 1860

No.

Number

Ors.

Others

RPA

Representation of People’s Act

p.

Page Number

pp.

Page Numbers

s.

Section

SC

Supreme Court

SCC

Supreme Court Cases

ss.

Sections

U/s.

Under Section

U.N

United Nations

v.

Versus

Vol.

Volume International Criminal Tribunal for Rwanda International Covenant on Civil and Political Rights

ICTR ICCPR UDHR

Universal Declaration of Human Rights

ECHR

European Convention on Human Rights

III

3rd LEX OMNIA MOOT COURT COMPETITION 2015

INDEX OF AUTHORITIES TABLE OF CASES S.NO

CAUSE TITLE

CITATION

1.

D.C. Wadhwa & Ors v. State Of Bihar & Ors

1987 AIR 579

1.

S.R.Bommai v. Union of India

AIR 1994 SC 1918

2.

A.K. Roy v. Union of India

1982 SCR (2) 272

3.

R.C. Cooper v. Union of India

1970 SCR (3) 530

4.

State of Rajasthan v. Union of India

AIR 1977 SC 1361

5.

B.A.Hasanahba And Others v. State Of Karnataka ILR 1998 KAR 85 And Others

6.

Atam Prakash v. State of Haryana

AIR (1986) SC 854

7.

Golaknath v. State of Punjab

AIR (1967) SC 1643

8.

Indra Sawhney v. Union of India

(1992) Supp (3) SCC 217

9.

Ismail v. State of Rajasthan

AIR 1958 Raj 96

10. Bombay v. Bombay Education Society

(1955) 1 SCR 568

11. M.G.Badappanavan v. State of Karnataka

AIR 2001 SC 260

12. Punjab Higher qualified teacher’s union v. State of

(1988) 2 SCC 407

Punjab 13. Ajay Hasia v. Khalid Mujib

(1981) 1 SCC 722

14. Charinjitlal Chaudary v. Union of India

AIR 1951 SC 41

15. State of Orissa v. Bhupendra

AIR 1962 SC 945

16. Maneka Gandhi v. Union of India

AIR 1978 SC 597

17. E.P.Royappa v. State of Tamil Nadu

(1974) 2 SCR 348

18. R.K.Garg v. Union of India

AIR 1981 SC 2138

19. Aruna Roy v State of Rajasthan

(WP I D No. 1 of 2015)

20. Dulari Devi and others v. State of Rajasthan and AIR 2015 Raj 84 Others 21. M.Mohamed Kutty v. State of Kerela

AIR 2003 Ker 39, 45

22. State v. Thakur Prasad

1958 All LJ 578

23. Lawrence v. Texas

539 US 558 (2003)

24. Kharak Singh V. State of Uttar Pradesh and Ors

(1964) 1 SCR 332

25. Re Semayne

(1604) 5 Coke Rep. 91

IV


26. Wolf v. Colorado

338 U.S. 25 (1949)

27. Govind v. State Of Madhya Pradesh

1975 SCR (3) 946

28. Rajagopal v. State of Tamil Nadu

1994(6) SCC 632

29. Bijoe Emmanuel v. State of Kerala

AIR 1987 SC 748

30. State of Gujarat v. Mirzapur Moti Kureshi Kassab

(2005)8SCC 534

Jamat 31. Hanif Quareshi v. State of Bihar

AIR 1958 SC 731

32. S.Ahmad v. State of Mysore

AIR 1975 SC 1443

33. M.H.Quareshi v. State of Bihar

AIR 1958 SC 731

34. Abdul Hakim v. State of Bihar

AIR1961 C 448

35. Board of trustees of the port of Bombay v. AIR 1983 SC 109 Dilipkumar R.Nandh Karni 36. Olga Tellis v. Bombay Municipal Corporation

AIR 1986 SC 180, (1985) 3 SCC 545

V


BOOKS REFERRED

1. D.D.BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA, 2007, 8TH EDITION, VOLUME I AND II 2. D.D.BASU, CONSTITUTION OF INDIA, LEXIS NEXIS, LEXIS NEXIS, INDIA, 2009, 8TH EDITION 3. D.D.BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 14TH EDITION 4. D.D.BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2008, 3RD EDITION 5. H.M.SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL PUBLICATIONS, INDIA, 2004, 4TH EDITION, VOLUME I,II AND III 6. V.N.SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY, INDIA, 2008, 11TH EDITION 7. D.J.

DE,

INTERPRETATION

&

ENFORCEMENT

OF

FUNDAMENTAL

RIGHTS,EASTERN LAWHOUSE,INDIA, 2008, 3RD EDITION 8. M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2014, 7TH EDITION, VOLUME 1 9. BASU DR.DURGADAS, CONSTITUTIONAL REMEDIES AND WRITS, 1ST ED. REPRINT 1994, KAMAL LAW HOUSE, CALCUTTA. 10. DATARARVIND, COMMENTARY ON THE CONSTITUTION OF INDIA, 2 ND EDITION 2007, WADHWA NAGPUR. WADHWA NAGPUR. 11. JAIN MAHIBIRPRASHAD, INDIAN CONSTITUTIONAL LAW, 5TH EDITION 2003, WADHWA&CO. DELHI. 12. MAJUMBDAR P.K, COMMENTARY ON THE CONSTITUTION OF INDIA, 9TH EDITION (2005), DELHI LAW HOUSE, NEW HOUSE, NEW DELHI. 13. R.N.CHOUDRY, COMMENTARY ON ELECTION LAWSAND PRACTICES IN INDIA, 3RD EDITION, ORIENT PUBLISHING COMPANY.

VI


STATUTES REFERRED 

CONSTITUTION OF INDIA



REPRESENTATION REPRESENTATION OF PEOPLES ACT, 1950



INFORMATION TECHNOLOGY ACT, 2008



INDIAN PENAL CODE

LIST OF JOURNALS REFERRED 

SUPREME COURT CASES (SCC)



ALLINDIA REPORTER (AIR)



SUPREME COURT REPORTER (SCR)

WEBSITES REFFERED 

www. www.lexisnexis.co.in



www.indiakanoon.org



www.manupatra.com



www.westlawindia.com



www.heinonline.org

VII


STATEMENT OF JURISDICTION The Petitioner humbly invokes the writ jurisdiction of this Hon’ble Court under Article under Article 32 of the Constitution of Pammu.

VIII


STATEMENT OF FACTS 1. Pammu is a quasi-federal country with a rich cultural history. The Sabka Vikaas Party in Pammu had won the general elections in 2004 and also in 2009. The next elections were scheduled for May 2014. 2. During its tenure, SBP introduced a Bill in December 2013, which sought to bring in an amendment in the Representation of People’s Act in order to introduce certain

educational qualifications for being eligible to contest polls for Member of Parliament. It was strongly opposed by all the opposition parties which resulted in the entire session of Parliament being washed out. This stemmed in a lot of financial loss for the government as far as the central exchequer was concerned. 3.

Later, the Representation of People’s Act (Third Amendment) Ordinance, 2014 was

issued which laid down eligibility criteria that a candidate must have passed class 10 of the Board of Secondary Education or its equivalent for contesting in MP elections. 4. SBP won the 2014 elections and after a few months, the Telecom Ministry came out with an Order (Telecom Order’) directed to the Internet Service Providers to “control free and open access” to around 900 porn sites. There was a vehement outcry in the

nation following the ban. 5. The Gauvansh Sanrakshan and Gausamvardhan Act, 2015 which imposed criminal sanction on slaughtering of cows, bulls and bullocks, selling of beef and as well as consumption of beef was also introduced by the SBP government. 6.

In light of the above, Mr.Mootkar Ritwick Roshan approached the Supreme Court of Pammu under Article 32 of the Constitution that his right to contest the elections has been affected by the ordinance. NGO Common Cause filed two separate petitions in the Supreme Court against the so called porn ban and the beef ban. The NGO also intervened in the writ petition filed by Mr.Roshan.

7. After preliminary hearing on the matter, the Supreme Court granted leave to hear the petitions. For the sake sak e of convenience, the Supreme Court decided to club the matters as the petitioners and the respondents were same in all the three cases.

IX


STATEMENT OF ISSUES

ISSUE 1

WHETHER

THE

R EPRESENTATION EPRESENTATION

ORDINANCE, 2014

OF

PEOPLE’S ACT (THIRD AMENDMENT)

IS ARBITRARY IN NATURE AND AFFECTS THE RIGHT OF

MR .M .MOOTKAR R ITVICK ITVICK R OSHAN OSHAN TO CONTEST THE ELECTIONS .

ISSUE 2

WHETHER

THE

TELECOM ORDER

ONLY TARGETING THE WEBSITES PROMOTING

"REVENGE PORN" IS VALID.

ISSUE 3

WHETHER THE GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS CONSTITUTIONALLY VALID.

X


SUMMARY OF ARGUMENTS ISSUE 1 THE

REPRESENTATION OF PEOPLE’S ACT

(THIRD

AMENDMENT) ORDINANCE

2014

IS

ARBITRARY IN NATURE AND AFFECTS THE RIGHTS OF THE PETITIONER TO CONTEST THE ELECTIONS.

It is humbly submitted that the present petition is maintainable under Article 32 of the Constitution, as the fundamental rights of the petitioner is violated in this case. The logical interpretation of the Preamble will show that a hardworking, right thinking citizen of this Nation cannot be deprived of his right to represent the people, on the ground that he does not possess certain educational qualification. The impugned ordinance transgresses Articles 14, 15 of the Constitution of Pammu and it clearly defies the Preamble of the Constitution. ISSUE 2 THE

TELECOM ORDER TARGETING THE WEBSITES PROMOTING “REVENGE PORN” IS

INVALID AND ULTRA VIRES THE PROVISIONS OF THE CONSTITUTION.

It is humbly submitted that the Telecom Order is violative of the fundamental right of privacy guaranteed to the citizens of Pammu enshrined under Article 21 of the Constitution. The ban on pornography is a regressive measure since the term revenge pornography does not fall under the ambit of obscenity. The government has failed in enacting effective legislations to curtail the proliferation of revenge porn by punishing the incriminators, instead has banned 900 porn sites. ISSUE 3 THE GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS UNCONSTITUTIONAL.

It is humbly submitted that the Gauvansh Sanrakshan and Gausamvardhan Act of 2015 is unconstitutional as it violates the fundamental rights under Articles 19(1)(g), 21 and 25 of the Constitution of Pammu. This unreasonable ban affects the livelihood of people from local butchers to leather leath er manufacturers. It will wil l also have a serious seri ous impact on Pammu economy. econo my. It is clearly unconstitutional to determine the food habits of a person or a community.

XI


ARGUMENTS ADVANCED 1. THE

REPRESENTATION OF PEOPLE’S ACT

(THIRD

AMENDMENT) ORDINANCE

2014

IS

ARBITRARY IN NATURE AND AFFECTS THE RIGHTS OF THE PETITIONER TO CONTEST THE ELECTIONS

The Union of Pammu has witnessed lakhs of citizens who have not even seen the footsteps of school becoming great personalities in various fields and also having represented the people of the Nation in the Parliament. Parl iament. Such Su ch being b eing the th e case the present p resent ordinance is ultra vires to the Constitution and should be declared null and void.

necessity f or pr omul gation of or din ance un der der A r ti cle 123 of 1.1. Th er e is no immediate nece the Pammu Pammu Constituti Constituti on

The powers of the President to promulgate ordinances are laid down clearly under Article 123.1 It states that the President shall promulgate Ordinance only if he finds necessary circumstances are in existence and that immediate action is of the necessity. It is imperative to note that the two words, namely, ‘ necessary circumstances’ and circumstances’ and ‘immediate ‘immediate

are the key elements with regard to promulgation of an Ordinance. action’ are

2 In Wadh wa' s case the Supreme Court expressed concern about the continuous misuse of case

the ordinance power. On the question of the review power of the Courts on ordinances, the Court has power to review ordinance post Bommai ’s ’s case ,3 where it was clearly pronounced that judicial review is permissible. Therefore the President’s Ordinance making power is not beyond the scope of judicial review4. 5 Cooperr v. Un ion of I ndia In RC Coope the Supreme Court, held that

“the President’s “the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to bypass debate and discussion in the legislature”. 1

Art.123: Power of President to promulgate Ordinances during recess of Parliament, (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require. 2

D.C. Wadhwa & Ors v. State Of Bihar & Ors,1987 AIR 579 S.R .Bommai v. Union of India , AIR 1994 SC 1918, “The Court ruled that the “satisfaction” of the President while making a proclamation of Ordinance is open to challenge on the ground of mala fide or being based wholly on extraneous and or irrelevant grounds.” 4 AK Roy v. Union of India, 1982 SCR (2) 272 5 RC Cooper v. Union of India, 1970 SCR (3) 530 3

1


Under Article 123 when the satisfaction of the President is questioned on the ground of mala fide, it cannot be brushed aside as a ‘political question’ i.e. beyond the ken of the Courts.6 Further, the power to promulgate an Ordinance is essentially used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends.7 An Ordinance8 unlike an Act is to be very carefully scrutinised by a Court if it is challenged because an Ordinance is an unfettered, unbridled power to promulgate provisions which have the effect of law without their going through the constitutionally constitutionall y prescribed process. process .9 1.2. Th e im pugned Ordi nan ce defi defi es the Preamble of th e Constituti on

The Preamble of our Constitution emphatically portrays the object and the purpose in unequivocal terms forming the basic structure of the Constitution.10 More specifically, “equality of status and of opportunity to promote among them all ”, all ”, is the basic foundation

of the Constitution and the very purpose of the representative institutions in the country is to give equal opportunity to all including those who do not have formal education in schools. Prescribing educational qualification is directly in violation of the Preamble of the Constitution and at the outset has no object sought to be achieved. Contrarily it is a serious assault on the participatory democracy which is an integral part of the basic structure of our Constitution. The Preamble contains the ideals and aspirations11 or the object which the Constitution makers intended to be realised12 by its enacting provisions.13

6

State of Rajasthan v. Union of India , AIR 1977 SC 1361 AK Roy v. Union of India, I ndia, 1982 SCR (2) 272, “ During “ During the two decades between 1960 and 1980, no less than 200 ordinances have been issued by the President. It cannot be that every such case was one of such emergency that irreparable injury would have been caused if the measure was left to legislation in the next session of Parliament”. 8 In the 15thLokSabha between 2009- 2014, twenty five Ordinances were promulgated. In the past few years it has averaged to six per year. 9 B.A. Hasanahba & Others v. State Of Karnataka & Others, ILR 1998 KAR 85 10 S.R. Bommai v. Union of India , AIR 1994 SC 1918 11 Atam Prakash v. State of Haryana, AIR (1986) SC 854 12 Golaknath v. State of Punjab , AIR (1967) SC 1643 13 Indra Sawhney v. Union of India , (1992), Supp (3) SCC 217 7

2


ansgr esses Ar ti cle 14 14 of th e Pammu Pammu Con stit uti on 1.3. Th e im pugned ordin ance tr ansgr

The impugned Ordinance is ultra vires to Article 1414 as it arbitrarily and unreasonably differentiates between candidates who possess and who lack the prescribed educational qualification.15It also discriminates between candidates having formal educational qualifications and candidates who are literate even without possessing a formal educational qualification.16 The Ordinance has failed to satisfy the test of reasonable classification17 and is not based on intelligible differentia. The differentia which is the basis of the classification classif ication and the object stated in the Act must have a nexus to qualify qualif y the test under Article 14.18 Equality being the basic feature,19 law prohibits creation of a class without a rational basis.20A classification under Article 14 made without any substantial basis should be regarded as invalid.21 On the other hand, an ordinance would be invalid for contravention of the constitutional limitations22 to which Parliament is subject to, including fundamental

14

Equality before law-“The State shall not deny to any person equal ity equal ity before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” 15

In the case on hand, the prime inequality is created on the basis of educational qualification which is totally irrelevant and insignificant in respect of the duties and responsibilities of the members of parliament. The personality and capability of a candidate contesting in the election will be assessed by each and every citizen at his wisdom and he is free to elect any candidate whom he feels best to serve the particular constituency. 16

In Ismail v. State of Rajasthan, Rajasthan , AIR 1958 Raj 96, The Hon’ble High Court of Rajasthan has recognized such a distinction as unreasonable and arbitrary stating that, “If it were provided in the Rule that the minimum qualification of literacy would be that the candidate should have passed the first primary class from a school, then it would have excluded all those persons who had studied privately and not joined any school. That provision would have worked to the detriment of more persons and it would have unreasonably excluded those literate persons who had studied privately or in an unrecognised school and who were otherwise more literate than the persons perso ns who had passed the first primary class”. 17

The classic nexus test as a basis of determining constitutionality with respect to Article 14 was enunciated by S.R. Das, J. in the State of West Bengal v. Anwar Ali Sarkar ,17 thus :" In order to pass the test of permissible classification two conditions must be fulfilled: (i) (ii)

that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, That the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them."

18

Bombay v. Bombay Education Society , (1955) 1 SCR 568. M.G.Badappanavan v. State of Karnataka , AIR 2001 SC 260 20 Ajay Hasia v. Khalid Mujib , (1981) 1 SCC 722 21 Charinjitlal Chaudary v. Union of India , AIR 1951 SC 41 22 Punjab Higher qualified teacher’s u nion v. State of Punjab , (1988) 2 SCC 407 ,”Where ,” Where there is arbitrariness in State action, whether by the legislature or executive or an authority under Art 12, the equality clause immediately springs into action and strikes down such action”. 19

3


rights under Article 14,23 Article 21.24Article 14 embodies guarantee against arbitrariness25 and equality cannot be cribbed, cabined and confined within traditional and doctrinaire limits.26 Prescription of educational qualification for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to the democratic governance of the institution in a Republic27. The object of Article 14 is wider and is to ensure fairness and equality of treatment.28Therefore through the impugned ordinance a candidate who does not possess particular educational qualification cannot be denied his right to contest. It is discrimination29 and violates the equality clause. 1.4. The

Ordinance

createsgender

inequality

and

denial

of

opportunity

to

un der der pri vil eged ged thus str str ik in g at the heart of A rti cles 15(3) and and 15(4)

The Ordinance is violative of Article 1530 of the Constitution. This Article not only provides that the State shall not discriminate against any citizen on grounds only of sex, but Article 15 (3) (3 )31 also provides special provision for women and children. Thus, in such circumstance, the impugned ordinance makes the special provision of reservation for women an otiose and a large segment of women would be disqualified since their literacy rates are much lower than the male population due to various socio economic conditions.32

23

State of Orissa v. Bhupendra , AIR 1962 SC 945 Maneka Gandhi v. Union of India , AIR 1978 SC 597 25 E.P.Royappa v. State of Tamil Nadu , (1974) 2 SCR 348, It does not forbid classification for the purpose of legislation, provided such classification is not arbitrary, but it must be based on qualities or characterisation which have a reasonable relation to the object of the legislation 26 R.K.Garg v. Union of India, AIR 1981 SC 2138 27 Aruna Roy v State of Rajasthan (WP (C) D No. 1 of 2015) 28 Maneka Gandhi v. Union of India , AIR 1978 SC 597 29 In Dulari Devi and others v. State of Rajasthan and others, AIR 2015 Raj 84, the Court observed that, “ We are, prima-facie, satisfied that in the State of Rajasthan in which the rate of literacy and the opportunity of formal education was limited, the prescription of any disqualification on the ground of qualification for contesting elections in the Panchayati Raj Institutions, excluding the masses, who did not have an opportunity of formal education, is violative of the right of equality under Article 14 of the Constitutio n of India.” 30 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth 24

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them 31

Nothing in this article shall prevent prevent the State from making any special provision for for women and children People’s Union of Civil Liberties v. Union of India , C.W.P.No. 18112 of 2015

32

4


This Ordinance also infringes the rights of socially and educationally backward classes of citizens whose rights under Article 15(4) are denied.33 The State instead of implementing the rights of the citizens under Article 15 are breaching into the welfare provisions enacted for the advancement of women and underprivileged by denying them the opportunity to contest in elections. The poor, underprivileged and downtrodden, cannot be denied participation in a democracy merely on the ground that they do not have educational qualification for such inclusion.34 The impugned Ordinance, leads to denial of opportunity to rural population and women whose literacy rates are comparatively lesser.35 This kind of selective discrimination is obstructing the participatory democracy by denying equal representation from all sectors of the population. disquali fi cation cation of candidature bas based on educational educational qu ali fi cation cation is invali d 1.5. The disquali

The provisions of the Ordinance is clearly inconsistent with Article 21 of Universal declaration of Human Rights, 195036 and Article 25 of The International Covenant for Civil and Political Rights 1973,37 which provides right to every citizen to take part in public affairs and contest cont est election without an y unreasonable restrictions. restrictio ns. The term literate was defined in the 2001 Census38 which clearly states that it is not necessary for a person to have received any formal education or passed any minimum 33

Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes 34 Supra note 27 35 The literacy rate of Pammu in 2011 Census works out to 74.04% and corresponding figures for male and female are 82.14% and 65.46%. The literacy rate in the Countr y according to census 2011 is abysmally low with rural women's literacy much lower than the average. 36 Art 21 of UDHR, Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of t he authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. 37 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;(c) To have access, on general terms of equality, to public service in his country. 38

Literate is a person aged 7 years and above who can both read and write with understanding in any language has been taken as literate. It is not necessary for a person to have received any formal education or passed any minimum educational standard for being treated as literate. People who were blind and could read in Braille are treated to be literates. 5


educational standard for being treated as literate. So a person might not have educational qualification but can still be a literate.39 The State has failed in its obligation to provide the infrastructure to build the education system40 and hence cannot insist by law that candidates in order to contest election ought to have a certain minimum education. While passing legislations, the State must analyse the social, political and economic conditions of the country and pass suitable legislations. This particular Ordinance has been passed when the country is still suffering from illiteracy and lack of primary schools and infrastructure and the duty of the State is to provide education as laid down in Article 21A41 and The Right of Children to Free and Compulsory Education (RTE) Act, 2009.42 But the State instead of implementing the Act is shifting its liability to the citizens by imposing such eligibility criteria to contest in elections. Therefore, it is clear that this Ordinance is unconstitutional and has been passed without due application of mind and in utter violation of constitutional principles. In addition to this, if such ordinances are allowed to subsist or exist, the extraordinary powers given with regard to an ordinance will be whittled down to a normal legislative alternative. 2. THE

TELECOM ORDER TARGETING THE WEBSITES PROMOTING “REVENGE PORN” IS

INVALID AND ULTRA VIRES VI RES TO THE PROVISIONS OF THE CONSTITUTION.

The telecom order targeting websites promoting revenge porn is invalid as there is no basis on which the government has banned 900 porn sites. Therefore it is arbitrary and unreasonable, violating the right to privacy of individuals. Revenge porn is a unique act as the intention is to cause harm by way of assault on the reputation of an individual.43 betwee en Obsce Obsceni ni ty and Porn ography. 2.1.Di f ference betwe

39

M.Mohamed Kutty v. State of Kerala, AIR 2003 Ker 39, 45 Article 45 of the Constitution of Pammu 41 Art 21A reads as follows, “The State shall provide free and compulsory education t o t o all children of the age of six to fourteen years in such manner as the State may, by law, law, determine” 42 An Act to provide free and compulsory education to all children of the age of six to fourteen years 43 Citron & Franks, Criminalising Revenge Porn (2014) 40

6


Pornography is "a depiction of licentiousness or lewdness, a portrayal of erotic behaviour designed to cause sexual excitement ”. ”.44 It is the depiction of sexual behaviour 45 that is

intended to arouse sexual excitement in its audience. Obscenity means offensive to chastity or modesty, expressing or personating to the mind or view something that delicacy, purity and decency forbid to be expressed or anything expressing unchaste and lustful ideas, impure or lewd.46 The framers of the telecom order have failed to understand the intricate difference between obscenity and pornography. They have tried to attract ‘pornography’ within the scope of obscenity which is untenable. ‘Obscenity’ has a wider conn otation and pornography

cannot be brought under its ambit. 2.2.

Th e impugn ed teleco telecom m or der der contr avenes avenes Righ t to Pr i vacy vacy bes bestowed towed un der der Ar ti cle

21 of of th e Constituti on .

The law of privacy is recognition of the individual’s right to be let alone and to have his personal space inviolate beyond the reach of Government.47The scope of Art.21 was enormously increased to include right to privacy as a fundamental right48 as it is an essential ingredient of personal liberty.49 A person’s house is his castle50and nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.51 In Rajagopal v. State State of T ami l N adu,52 it was held that right to privacy53 has acquired constitutional status. The American and English Courts have held that it is implicit in the

44

The term pornography has been defined by the U.S Supreme Court in Miller v. California and it used the definition of pornography made by Webster's Third New International Dictionary of 1969 45 Black's Law Dictionary followed the Miller’s test and defined pornography “as material that taken as a whole the average person, applying contemporary community standards, would find appealing to the prurient interest.” 46 State v. Thakur Prasad , 1958 All LJ 578 47 Lawrence v. Texas, 539 US 558 (2003) 48 Maneka Gandhi v. Union of India , (1978) 2 SCR 621 49 Kharak Singh v. State of Uttar Pradesh and Ors , (1964) 1 SCR 332 50 Semayne’s Case , (1604) 5 Coke Rep. 91; Wolf v. Colorado, 338 U.S. 25 (1949) 51 Govind v. State Of Madhya Pradesh , 1975 SCR (3) 946 52 Rajagopal v. State of Tamil Nadu, 1994(6) SCC 632 53 Supra 51 7


concept of right to life and liberty. The same view was taken in Kh arak Sin gh v. State State of .54 Utt ar Pr ades adesh and Oth er s According to William Blackstone, “the law is so particular and tender a regard to the immunity of a man’s house that house that it stiles it his castle, and will never suffer it to be violated with impunity”. 2.3.Total Tot al ban on acces access to porn por n websi websi tes emascul mascul ates the th e f un damental r i ghts ght s of the t he citi zens

There are no laws55to curb internet pornography, other than those relating to child pornography. The agitation is not about liking or disliking porn, but about government hijacking personal liberties of citizens. There is no proof as to whether the websites banned are those of revenge pornography because the SBP56 said that such websites were in bad taste, disrespected women and was against the cultural tenets of Pammu.57Since there is no conclusive proof about the type of websites banned, neither Section 67 of IT Act58 nor Section 292 of IPC59can be attracted. In Shankar san Kr ishnu M unda v. State of M aharashtr it was held that “ private viewing aharashtr a of obscene film does not constitute an offence and if the obscene object is kept in a house for private viewing and is not for sale, hire, public exhibition or circulation, the accused cannot be charged under Section 292 ”.

It is contended that such regressive measures portray the government as a totalitarian state. Moral policing of State does not extend to a person’s right to privacy. The concept of

culture is not denied, but, in the world of globalization, it is the prime duty of the government to create awareness about the negative impacts of such pornographic websites rather than taking regressive measures. nter national in stru ments ments envisa envisage ge ri ght to pri vacy vacy of of an i ndivi dual 2.4.I nter

The right to privacy is also given importance internationally by various covenants. “ Everyone has the right to respect for his private and family life, his home and his 54

Kharak Singh v. State of Uttar Pradesh and others, AIR 1963 SC 1295 , “Our constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” liberty.” 55 Information Technology Act, 2008; Indian Penal Code ; Indecent Representation of women (prohibition) Act 56 SabkaVikas Party 57 Moot proposition , ¶ ¶ 3 58 Information Technology Act , , 2008 59 Indian Penal Code , 1860 8


correspondence” correspondence”.60 Pammu is a signatory to the ICCPR 61 which enshrines right to

privacy.62 Article 12 of the UDHR 194863 is almost in similar terms. By violating such ratified Covenants, DPSP’s 64 have also been violated. 2.5. Ban Ban on “revenge “revenge porn” is is unreasonable and unjustified.

When the exercise of a fundamental right is prohibited, the State has the burden of proving that a total ban on such right is in general public interest.65 There is no definition of revenge porn under the existing statutes of Pammu. Thus, classification is unjust and arbitrary without any basis. Although the Government said that it had acted on representations, it refused to make them public.66 This raises dubious questions as to the veracity of the representations received by the government. Porn in general can be made with the consent of the parties involved in it. Revenge porn is without the consent of the parties and it is not possible to distinguish ‘revenge porn’ from porn. The victim must register a complaint against such websites publishing sexually explicit content without her consent. Only then it is possible to identify such websites promoting revenge porn. So, the government must first frame guidelines for regulating such videos rather than banning the websites. Imposing ban without proper regulation is unhealthy. The incriminators of such activities must be penalized with the enactment of, stringent penal laws. Since there is no special legislation on ‘revenge porn’, banning of websites will not prevent offenders from committing such unlawful activities. soluti on. 2.6.Ban i s not the soluti

Imposition of ban is not the solution to preserve cultural fabric.67 Even if the government bans Internet porn, people who cannot live without it will easily find alternative sources.

60

Article 8 of The European Convention on Human Rights International Covenant on Civil and Political Rights 62 Article 17 ICCPR is as under “No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his his honour and reputa tion.” 63 Universal Declaration of Human Rights 64 Directive Principles of State Policy 65 Narendra Kumar & Ors. v. The Union of India, (1960) 2 SCR 375 66 Moot Proposition , ¶ 5 67 A 2011 American article on science, copiously quoted from several sample surveys and studies from journals that porn led to none of the detriments that it is believed to cause. On the contrary, there is scientific possibility to suggest that the porn could have a mitigating influence on people since it offered an alternative (self medication with fantasy) to sexual satisfaction. 61

9


But, it will expose the government’s proclivity to overlook the real underlying issues that

foster and perpetuate sexism, violence and exploitation against women. Denial will create eagerness and eagerness will lead to crimes. A direct infringement on the right of citizens by imposing a total ban is i s clearly untenable in the th e eyes of law. The most effective way to combat revenge porn is through legislations on revenge-porn specific laws.68 Due to the absence of effective legislations on revenge porn, the law enforcing authorities are unable to take efficient measures to curb the revenge porn menace. Thus specifically tailored revenge porn statutes are the best way to combat revenge porn issues.69 The ICTR 70 and the International Criminal Tribunal for the former Yugoslavia (ICTY) also suggested to amend statutes to include revenge porn as a crime.71

3.

THE

GAUVANSH

SANRAKSHAN

AND

GAUSAMVARDHAN

ACT

OF

2015

IS

UNCONSTITUTIONAL.

This impugned Act violates the fundamental rights guaranteed under Articles 19(1)(g), 21 and 25(1)72 of the Constitution. Beef Consumption is a matter of personal choice and the Act violates rules of Secularism since it is based on religious grounds. Right to life under Article 2173 includes right to choose any kind of food. Beef is one of the most affordable74 sources of protein for poor people. Stricter anti-beef laws discriminate against tribals and 68

Mary Anne Franks, Combating Non-Consensual Pornography: A Working Paper (October 7, 2013) Ibid 70 International Criminal Tribunal for Rwanda 71 According to the ICTR, “sexual violence is not limited to physical i nvasion of the human body and may include acts which do not involve penetration or even physical contact.” The ICTY held that, “ International criminal law should punish not only rape, but “all serious abuse of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force, intimidation in a way that is degrading and humiliating for the victim’s dignity.” 72 Freedom of conscience and free profession, practice and propagation of religion 69

1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. 73

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. 74 According to the Commentary on Committee on Economic, Social and Cultural Rights, General Comment 12, the Right to Adequate Food (Article 11 of the Covenant), UN Docum ent No E/C/12/1999/5, 12 May 1999,“ The fundamental definition of right to food can be b e laid down as, “the right to adequate food is realized r ealized when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement”. 10


certain communities communit ies who rely on the cheap meat as a source of o f protein. It is unconstitutional to determine the food habits of a person or a community just to satisfy the religious sentiments of the majority. 3.1.Th e State has fai led to balance reli reli giou s and cul tur al r igh ts of i ts citi zens

Article 25(1) incorporated in the Constitution recognises the principle that real test of a true democracy is the ability of even an insignificant minority to find its identity under the Constitution.75The reason behind beef ban is religious sentiments of a particular community as they consider the animal sacred. The Supreme Court has reiterated in numerous cases that cattle can be slaughtered after they cease to be milch76 or draught.77 But it is evident that the ban on slaughter of even aged and useless cattle is to satisfy the religious sentiments of a particular community in Pammu. cann ot be sustained ustained in law 3.2. Total pr ohibi tion cann

On scrutiny of Art 4878 there arises a pro position as to whether the term ‘milch’ and ‘draught cattle’ is specifically used to prohibit slaughter of such animals till they have

genetic qualities and that this protection cannot be accorded when they cease to be milch or draught cattle.79 The opinion of experts is that after particular age bulls, bullocks and buffaloes are no longer useful for breeding, draught and other purpose and whatever little use they may have then is greatly offset by the economic disadvantage of feeding and maintaining unserviceable cattle. A total ban on the slaughter of bulls and bullocks after they cease to be capable of yielding milk or working as draught animals cannot be termed reasonable in the interest of the general public.80

75

Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat ,(2005)8SCC ,(2005)8SCC 534 the Court observed that “ Milch “ Milch breeds include all cattle breeds which have an inherent potential for milk production” 77 Chambers 20th Century Dictionary defines 'draught animal' as 'one used for drawing heavy loads 78 Organisation of agriculture and animal husbandry- “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.” 79 It is contended that Art 48 of the directive is confined to cows and calves and to those other animals which are potentially capable of yielding milk or doing work as draught cattle but does not extend to cattle which were at one time milch or draught but have ceased to be such. 76

80

Hanif Quareshi v. State of Bihar , AIR 1958 SC 731 11


There is a distinction between the facts of the State of Guj arat v. M ir zapur M oti Ku r eshi 81 and present case on hand. The facts of this case state that there is a ban on Kassab Kassab J amat

selling and consumption of beef whereas in M ir zapur the Court did not dwell apur M oti oti cas case on this point. Ban on selling and consumption will impair the livelihood of traders who depend on beef related industry for their survival and this ban affects the fundamental rights of farmers, butchers, beef exporters and every other citizen who is denied the right to consume food of his choice. Therefore the dictum in Mirzapur case cannot be applied here. beef tr ade busin ess 3.3. I mpact on beef

The rights of farmers, butchers, leather exporters and other middlemen involved in beef related business stands infringed. The previously existing exemption of old and unfit cattle for agriculture was reasonable as it created a balance between Article 48 and rights of the butchers under Article 19(1)(g)82 but this Act imposed a blanket ban irrespective of age and productivity. To reconcile the rights of butchers to carry on their trade, and restrictions imposed on killing of animals through several state laws, the Supreme Court earlier had adopted an economic approach, viz , killing of useful animals could be prohibited but not of those animals who have become economically useless to the society83. Further, Article 301 guarantees freedom of trade. A provision infringing Arts 30184 may and ordinarily will, infringe Article 19(1)(g) as well and so it can be challenged under Article 19(1)(g).85 The prohibition imposed on the Fundamental Right to carry on trade and commerce cannot be regarded re garded as reasonable, reaso nable, if it is imposed not in public publi c interest, inter est, but merely to respect the susceptibilities and sentiments of a section of the people.

81

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat , (2005)8SCC 534 to practise any profession, or to carry on any occupation, trade or business

82

(1) All citizens shall have the right (g) to practise any profession, or to carry on any occupation, trade or business 83 Hanif Quareshi v. State of Bihar , AIR 1958 SC 731 84 Subject to the other provisions of this Part, Trade, Commerce and Intercourse throughout the territory of India shall be free. 85 S.Ahmad v. State of Mysore , AIR 1975 SC 1443 12


3.4.Right 3.4.Right t o li veli veli hood of f arm er s is aff ected cted

The impugned Act transgresses the right to livelihood of the farmers and persons engaged in beef business under Article 21. Our country being an agrarian economy, rearing of cattle is one of the vital occupations of a farmer and they sell it only when the cattle become old and are incapable of producing milk. The court held that “the “the right to life guaranteed by Article 21 includes the right to livelihood ”.86

The poor farmers will be unable to maintain the old cattle that are actually fit for slaughter. They would not be able to afford fodder, water and medicine for the aging cattle. The 87 court has held in Olga T ell i s cas that the right to livelihood is born out of the right to case e

life, as no person can live without the means of living.88 pactt on th e Economy of Pammu 3.5. A n egative im pac

Pammu is set to lose status of world’s large st beef exporter due to this ban.89 Pammu is

projected to be the largest exporter of beef in the world90 in 2015 followed by Brazil and Australia. It accounts for 23.5% of global beef exports. Buffalo meat exports have been growing at an average of nearly 14% each year since 2011, and fetching Pammu as much as $4.8 billion in 2014.91 As they age, the accumulating cattle population92 will pose a health hazard too. If not properly disposed of the deceased animals can cause disease and contribute to higher human morbidity and mortality.93

86

Board of trustees of the port of Bombay v. Dilipkumar R. Nandhkarni , AIR 1983 SC 109 Olga Tellis v. Bombay Municipal Corporation , AIR 1986 SC 180, (1985) 3 SCC 545, “ If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood livelihood to the point of abrogation ” 88 The Government must consider the livelihood of lakhs of people who are employed in meat export as they could be rendered jobless which will also result in a substantial loss of revenue to the Government. 87

89

Livestock and poultry, World markets and Trade, Foreign Agricultural Service, United States Department of Agriculture, (October 2015), www.fas.usda.gov 90 Government of Pammu in its Directive has stressed export of meat and meat products as thrust area. Current Foreign Trade Policy encourages export of meat . Ban has the potential to pull down Country’s annual GDP growth rate by about 2 percent 91

http://www.thehindu.com/news/national/india-on-top-in-exporting-beef/article7519487.ece A complete ban on the slaughter of cattle is bound to cause overpopulation of these animals, upkeep, putting pressure on grasslands, leading to degradation of local farm lands, and altering the local environment. Further, there are international concerns, since cattle overpopulation contributes to higher methane production due to the unique bovine bodily constitution and digestive process. 92

13


3.6. Ri ght to L i fe embr embr aces aces Righ t to food and healt healt h in its realm. realm.

Pammu is a diverse country with innumerable cultural and social differences. There is tremendous variation in food habits across the country. According to data released by NSSO,94rural households consuming beef increased from 3.9% to 4% between 2010 and 2012 and urban households from 4.3% to 5%. As many as 80 million citizens in consume beef, which includes buffalo meat.95Article 4796 impose an obligation on the State to raise the level of nutrition and improve public health. This Act is also in conflict with the National Food Security Act, 201397 which ensures access to adequate quantity of quality food at affordable prices to people to live a life with dignity. Beef Beef is a cheap source of protein and fat for mainly those groups who already have a high incidence of anaemia and malnutrition like women and children.98 Beef sourced from buffalo or other bovine varieties is relatively cheap. Thus, it is pleaded that the government cannot lay down laws as to what can be consumed by its citizens. It is the liberty of the people to consume food of their choice and interfering with this right is a clear violation of the Constitution.

93

For the small and marginal farmers, the burden of either burying or cremating 20 to 30 million animals per year will be an expensive proposition.

94

National Sample Survey Organisation Household consumption of various goods and services in India , National Sample Survey Organisation (NSSO), a division of the Ministry of Statistics and Programme Implementation, Report No. 558 (68/1.0/2), 2011-2012, www. mospi.nic.in 96 Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 95

97

An Act to provide for food and nutritional security in human life c ycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. 98 U.S. Department of Agriculture, Agricultural Research Service, 2002. USDA Nutrient Database for Standard Reference, (NDB No: 13012) 14


PRAYER FOR RELIEF

Wherefore in the light of issues raised, arguments advanced and authorities cited above, it is humbly prayed that this Hon’ble Court may be pleased to 1.To issue a writ of declaration declaring The Representation of People’s Act (Third

Amendment) Ordinance 2014 as void and unconstitutional. 2.To issue a writ of Certiorari to call for the records pursuant to the impugned telecom order issued by the government and quash the same. 3.To issue a writ of Declaration declaring the Gauvansh Sanrakshan and Gausamvardhan Act of 2015 as unconstitutional, null and void. And pass any further Order or Orders in the circumstances of the present case which this Hon’ble court may deem fit in the light of Equity, Justice and good conscience for which the

counsel may forever pray.

ALL OF WHICH IS RESPECTFULLY RESPECTFULLY SUBMITTED ON BEHALF OF THE PETITIONER

Sd/COUNSEL FOR THE PETITIONER

xii

Lex Omnia 2015 Petitioner.pdf

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