Lex Omnia 2015 Respondent.pdf

TEAM CODE 31

3rd LEX OMNIA MOOT COURT COMPETITION, COMPETITION, 2015

BEFORE THE HONOURABLE SUPREME COURT OF PAMMU

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

IN THE MATTER OF MATTER OF

……............ ...............................PETITIONER (S) COMMON CAUSE & ANR ……............

V.

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

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS INDEX OF ABBREVIATIONS……………………………………………………………… iii

INDEX OF AUTHORITIES……………………………………………………………….… iv STATEMENT OF JURISDICTION…………………………………………………….…… .ix STATEMENTS OF FACTS………………………………………………………………... ..x

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

SUMMARY OF ARGUMENTS……………………………………………………………..xii ARGUMENTS ADVANCED…………………………………………………………………1 EPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT) 1. WHETHER THE R EPRESENTATION

ORDINANCE, 2014 IS ARBITRARY IN NATURE AND AFFECTS THE RIGHT OF ITVICK R OSHAN OSHAN TO CONTEST THE ELECTIONS………….….....1 MR .M .MOOTKAR R ITVICK

2. WHETHER THE TELECOM ORDER ONLY TARGETING THE WEBSITES PROMOTING "REVENGE PORN" IS VALID……………………………………………………….5 3.

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

ELIEF……………………………………………………………….... .....xiii PRAYER FOR R ELIEF

ii

3RD LEX OMNIA MOOT COURT COMPETITION 2015

TABLE OF ABBREVIATIONS

¶

Paragraph Number

¶¶

Paragraph Numbers

&

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

v.

Versus

Vol.

Volume

UDHR

Universal Declaration of Human Rights

WHO

World health Organisation

FAO

Food and Agricultural Organisation

U.N

United Nations

iii


INDEX OF AUTHORITIES TABLE OF CASES S.No

Cause title

Citation

1.

Keshavananda Bharati v. State of Kerala,

(1973) 4 SCC 225

2.

Kerala Education Bill, In re,

AIR 1957 SC 956

3.

U.P.S.E . Board v. Hari Shankar

AIR 1979 SC 65

4.

Minerva Mills v. Union of India

AIR 1980 SC 1789

5.

T.N.Godavarman Thirumalpad v. Union of India and

AIR 1997 SC 1228

Ors 6. N.R.Nair v. Union of India India

AIR 2000 Ker 340

7.

AIIMS Students' Union v. AIIMS and Ors.

(2002) 1 SCC 428

8.

State of Gujarat v. Mirzapur Moti Kureshi Kassab

AIR 2006 SC 212

Jamat 9. Narendra Kumar and Ors. v. The Union of India and

(1960) 2 SCR 375

Ors. 10. Indian Handicrafts Emporium and Ors. v. Union of

(2003) 7 SCC 589

India and Ors 11. O.K. Ghosh v. E.X. Joseph

1963 Supp. (1) SCR 789

12. Madhya Bharat Cotton Association Ltd. v. Union of

AIR 1954 SC 634

India (UOI) and Anr. 13. State of West Bengal and Ors. v. Ashutosh Lahiri

AIR 1995 SC 464

14. CESC Ltd. v. Subhash ChandraBose

1992 AIR SC 573

15. Parmanand Katra v. Union of India

AIR 1989 SC 2039

16. Shreya Singhal v. Union of India

(2013) 12 SCC 73

17. State v. Thakur Prasad

1958 All LJ 578

18. Ajay Goswami v. Union of India

AIR 2007 SC 493

19. Rajagopal v. State of Tamil Nadu

1994 SCC (6) 632

20. Soma Rama Chandram v. State Of Andhra Pradesh

2013(3) RCR (Civil) 707

21. Sharda v. Dharmpal

AIR 2003 SC 3450 iv


22. Rohit Shekhar v. Shri Narayan Dutt Tiwari & Anr

2011(4) RCR (Crl.) 307

23. Govind v. State of Madhya Pradesh & Anr

(1975) 2 SCC 148

24. Munn v. Illinois

(1877) 94 US 113

25. Wolf v. Colorado

(1949) 338 US 25

26. Aveek Sarkar v. State of West Bengal

(2014) 4 SCC 457

27. Ranjit D. Udeshi v. State of Maharashtra

(1965) 1 SCR 65

28. Janaganavadi Bharat v. Govt. of India

AIR 2004 All 427

29. A.K.Roy v. Union of India

AIR 1982 SC 710

30. Lakhshminarayan v. Province of Bihar

(1950) SCJ 32 (35)

31. Venkat v. State of A.P

AIR 1985 SC 724

32. R.C.Cooper v. Union of India

AIR 1970 SC 564

33. Nagaraj v. State of A.P

AIR 1985 SC 551 551

34. Gurudevdatta

VKSSS

Maryadit

v.

State

of

AIR 2001 SC 1980

Maharashtra 35. State of Punjab v. Satya Pal Dang

AIR 1969 SC 903

36. Praveen Kumar fruit Co. v. Hyderabad Agricultural

1997 AIHC 2644

Market Committee 37. Lindsley v. Natural Carbonic Gas Co.

(1910) 220 US 61

38. Ameeroonissa v. Mahoob

1953 SCR 404(414)

39. Kangshari v. State of West Bengal

AIR 1960 SC 457

40. Ashuthosh Gupta v. State of Rajasthan

(2002) 4 SCC 34

41. Prabhudas Morarjee Rajkotia v. Union of India

AIR 1966 SC 1044

42. Mohini Jain v. State of Karnataka

AIR 1992 SC 1858

43. Unni Krishnan J.P. v. State of Andhra Pradesh

AIR 1993 SC 2178

44. Kuldip Nayar v. Union Of India & Ors.

AIR 2006 SC 3127

45. N.P.Ponnuswami v. Returning Returning officer, Namakkal

AIR 1952 SC 64

Constituency 46. Jamuna Prasad Mukhariya v. Lachi Ram

AIR 1954 SC 686

47. Jyoti Basu v. Debi Ghosal

AIR 1982 SC 983

48. P.Nallathampy v. B.L.Sankar

AIR 1984 SC 135

49. Javeed v. State of Haryana

AIR 2003 SC 3057

50. Raju. V.B v. Chief Electoral officer, Gujarat

AIR 1976 Guj 66

v


51. Griswold v. Connecticut

381 U.S. 479 (1965

52. Roe v. Wade

410 U.S. 113 (1973)

53. Kharak Singh v. State of U.P &Ors.

1964 SCR (1) 332

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, 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 LAW HOUSE,INDIA, 2008, 3RD EDITION 8.

M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, LEXIS NEXIS, INDIA, 2014, 7TH

EDITION, VOLUME 1 9.

BASU DR. DURGA DAS, CONSTITUTIONAL REMEDIES AND WRITS, 1ST

ED. REPRINT 1994, KAMAL LAW HOUSE, CALCUTTA. 10.

DATAR ARVIND, 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, 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, 1860

JOURNALS REFERRED 

SUPREME COURT CASES (SCC)



ALL INDIA REPORTER (AIR) REPORTER (AIR)



SUPREME COURT REPORTER (SCR) REPORTER (SCR)

WEBSITES REFFERED 

www.lexisnexis.co.in www.lexisnexis.co.in



www.indiakanoon.org



www.manupatra.com



www.westlawindia.com



www.heinonline.org

vii


STATEMENT OF JURISDICTION The Respondent submits to the jurisdiction of this Hon’ble Court in response to a Writ Petition filed by the Petitioners 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 (Thir d 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 (Telecom Order’) 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 GausamvardhanAct, 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 fi led 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 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

TARGETING

THE

WEBSITES

PROMOTING

"REVENGE PORN" IS VALID.

ISSUE 3

WHETHER

THE

GAUVANSH SANRAKSHAN

IS CONSTITUTIONALLY VALID.

x

AND

GAUSAMVARDHAN ACT

OF

2015


SUMMARY OF ARGUMENTS ISSUE 1 THE

REPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT) ORDINANCE,

2014 IS

NOT

ARBITRARY IN NATURE AND IT DOES NOT AFFECT THE RIGHT OF MR .MOOTKAR RITVICK ROSHAN TO CONTEST THE ELECTIONS.

It is humbly submitted that the ordinance is not violative of any provisions under Part III of the Constitution. The Ordinance was promulgated by the President in exercise of powers conferred under Art 123 of the Constitution. The present ordinance does not violate Art 14 of the Constitution as it is based on intelligible differentia and it can attract the inequality clause only if it is actually actuall y and palpably unreasonable and arbitrary. ISSUE 2 THE TELECOM ORDER TARGETING WEBSITES PROMOTING REVENGE PORN IS VALID.

It is humbly submitted that the telecom Order targeting websites promoting revenge porn does not violate the fundamental rights guaranteed to the citizens as it is not absolute and subject to reasonable restrictions. Revenge porn clearly falls under the ambit of ‘obscenity’ which is punishable under the Information Technology Act and the Indian Penal Code. The Indecent Representation of Women (Prohibition) Act also prohibits any form of representation of women in an offensive way. ISSUE 3 THE GAUVANSHSANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS CONSTITUTIONALLY VALID.

It is humbly submitted that the Gauvansh Sanrakshan and Gausamvardhan Act of 2015 is constitutionally valid and in consonance with Art 48 of the Constitution, harmoniously construed it with the fundamental f undamental rights. A Constitutional bench of the Supreme Court in the case of State of Guj arat v. M ir zapur M oti K ur eshi Kass , upheld a total KassabJammat abJammat and Ors ban on the slaughter sl aughter of cows, calves, cal ves, bulls, bullocks. Therefore, the Act imposing i mposing criminal sanction on slaughter of cows, bull and bullocks is valid and constitutional.

xi


ARGUMENTS ADVANCED I. THE REPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT) ORDINANCE, 2014 IS NOT ARBITRARY IN NATURE AND IT DOES NOT AFFECT THE RIGHT OF MR .MOOTKAR RITVICK ROSHAN TO CONTEST THE ELECTIONS.

It is humbly submitted that the writ petition filed by the Petitioner is totally misconceived and devoid of any merits and is liable to be dismissed in limine. limine. The Representation of People’s Act (Third Amendment) Ordinance, 2014 2014 (hereinafter referred as RPA) is constitutionally valid and does not affect the fundamental rights of the petitioners in the instant case. 1.1.

. The Ordin ance is withi n th e contour contour of th e cons constituti tituti on

The Ordinance was promulgated by the President in exercise of powers conferred under Article 1231 of the Constitution. The ordinance can be promulgated when; i)

the houses are not in session

ii)

The President is satisfied that necessary circumstances exist which render it

necessary for him to take immediate action.2 The ‘satisfaction’ referred to in this clause is the satisfaction of the President acting on the advice of his Council of Ministers. 3 The President is not bound to explain the reasons for promulgating an ordinance or even to prove them in a Court of Law. 4 In A.K. Roy v. v. Un ion 5 the Hon’ble Supreme Court has upheld this power on the ground that it is of I ndia ndia

necessary to meet urgent situations. The onus is on the Petitioner to make out a prima facie case that ‘necessary circumstances’ did not exist, exist, but in the case on hand the petitioner has failed to prove it. 1.2.

Judi cial r eview view of ordin ance makin g powe power

The Court cannot question the propriety of the President’s satisfaction satisfaction..6 The reason is that the ‘satisfaction’ under Article Article 123(1) is not the personal satisfaction of the President, but, by reason of Article 74, a satisfaction arrived at on the advice of the Council of 1

Janaganavadi Bharat v. Government of India, India , AIR 2004 All 427 A.K.Roy v. Union of India, India, AIR 1982 SC 710 3 Ibid 4 Lakhshminarayan v. Province of Bihar , (1950) SCJ 32 (35) 5 Supra note 2 6 Venkata v. State of A.P , AIR 1985 SC 724 2

1


Ministers.7This ordinance is a measure to tackle the upcoming parliamentary elections in Pammu and the circumstances clearly makes it the need of the hour. When the facts upon which President was satisfied sat isfied as to the existence of ‘necessary ‘ necessary circumstances’ is in the possession

of the government, there is no no compulsion on the

Ordinance making authority to give reasons or disclose the information while promulgating an ordinance.8 Unless the ordinance infringes any constitutional safeguards, it cannot be examined9 nor can the motive for such promulgation be in question. 10 1.3.

Th e ordin ance is in conf conf ormi ty with the pri nciples enshr nshr in ed in the cons constituti tituti on

The RPA ordinance is in consonance with the Constitutional provisions and does not violate Article 14 as it is based on intelligible differentia. It can attract the inequality clause only if it is actually and palpably unreasonable 11 and arbitrary. 12 A classification having some reasonable basis, does not offend the provision merely because it is not made with mathematical nicety or, in practice, it results in inequality.13 One of the objects of the RPA is to provide for the qualification and disqualification of membership for both the Houses in Parliament. Further Article 84(c) 14 gives indirect effect to the provisions of RPA. When a law is challenged as violative of Article 14 it is necessary for the Court to first ascertain the policy underlying the statute and the object intended to be achieved by it. 15

7

R.C.Cooper v. Union of India, India, AIR 1970 SC 564 Ibid 9 Gurudevdatta VKSSS Maryadit v. State of Maharashtra, (2001) 4 SCC 534 10 State of Punjab v. Satya Pal Dang , Dang , AIR 1969 SC 903,“ 903 ,“Courts Courts cannot interfere with the legislative malice in passing a statute. Legislative malice is beyond the pale of jurisdiction of the law courts. Even in cases where an ordinance is irrelevant in the circumstances but if the executive in its wisdom thought, it fit to promulgate an ordinance, it is no n o part of the Court’s duty to describe it as otherwise not required”. The mere fact that the Parliament was prorogued only a few days before making an ordinance would not be an evidence of mala fides. In fact it is declared by the Supreme Court that President can prorogue Parliament in order to able to promulgate an ordinance. 11 Ameeroonissa v. Mahoob,1953SCR Mahoob ,1953SCR 404(414), The Apex Court has held that “inequality of treatment does not per se amount to discrimination. To attract the operation of this clause the selection or differentiation must be unreasonable or arbitrary, that it does not rest on any rational basis having regard to the object of the legislature” legislature” 12 Praveen Kumar Fruit Co v. Hyderabad Agricultural Market Committee Committee , 1997 AIHC 2644 13 Lindsley v. Natural Carbonic Gas Co,(1910) Co,(1910) 220 US 61 14 “that the person shall not be qualified to be chosen to fill a seat in Parliament unless he posses such other qualifications as maybe prescribed in that behalf or under any law made by the Parliament” 15 Kangshari v. State of West Bengal ,AIR1960 ,AIR1960 SC 457 8

2


The vision of the State is always to promote the welfare of the people. It must be presumed that the legislature understands and correctly appreciates the need of its own people. 16 It has to be proved that there was not only differential treatment 17 but also the person had been treated differently from other persons similarly placed without any rational basis.18 1.4.

Th e amendment amendment i s i n pr ogress ogressi on of the Di r ective Pri nci ples of State Poli cy.

Article 4519stresses on the duty of the State to make effective provisions for securing right to education20 which has also attained the status of a fundamental right by virtue of Article 21A. The Right of Children to Free and Compulsory Education Act, 2009 has its roots in Article 21A.

Nayar v. Union of I ndia & Ors In Kuldip Nayar ,21 the Apex Court quoted the observations 22 of the

Drafting Committee of Constitution which showed clearly that it was in favour of prescription of educational qualifications for membership to Parliament. It is the duty of the State to ensure increase in literacy rates and it is in furtherance of this objective that educational qualifications has been stipulated as an eligibility criteria to contest in parliamentary elections. In determining the scope and ambit of fundamental rights, the Court may not entirely ignore the Directive Principles of State Policy (hereinafter referred as DPSP), but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible. 23

16

Ashuthosh Gupta v. State of Rajasthan, Rajasthan , (2002) 4 SCC 34,The rationale of presumption in favour of legislation is that legislature is the judge of the local conditions and circumstances and special needs of various classes of persons. 17 To prove an instance of inequality, a plea of differential treatment will not suffice. 18 Prabhudas Morarjee Rajkotia v. Union of India, India , AIR 1966 SC 1044 19 Part IV of the Pammu Constitution 20 The Right to education was recognized as an implicit fundamental right in Mohini jain v. State of Karnataka, Karnataka, AIR 1992 SC 1858 and Unni Krishnan v. State of Andhra Pradesh , AIR 1993 SC 2178 21 Kuldip Nayar v. Union Of India & Ors, Ors, AIR 2006 SC 3127 22

There is, moreover, a strong feeling in certain quarters that a provision prescribing or permitting the prescription of educational and other qualifications for membership both of Parliament and of the State Legislatures should be included in the Draft. To formulate precise and adequate standards of this kind will require time. Further, if any such qualifications are laid down in the Constitution itself, it would be difficult to alter them if circumstances so require. The best course would, therefore, be to insert an enabling provision in the Constitution and leave it to the appropriate legislature to define the necessary standards later. Whatever qualifications may be prescribed, one of them would certainly have to be the citizenship of India." 23

Re Kerala education bill ,1959 ,1959 SCR 995 3


The DPSP, though not justiciable in a Court of law imposes an obligation on the State to fulfil its duties towards the citizens and prescription of educational qualifications is one such step to achieve its goals. 24 1.5.

The ordinance is in pursuance of the object sought to be achieved by the

Constituti on and RPA, 1951 1951

The right to contest an election is neither a fundamental right nor a Constitutional right but it is merely a statutory right.25 It is creature of a statute26 and must be subject to the limitations27 imposed by it. 28 29 In Javeed , the Supreme Court held that, Javeed v. State State of H ar yana

“There is nothing wrong in some statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualification which would disable a person from contesting for, or holding, an elective statutory office ”. Further the very object of RPA entitles prescription of qualifications and disqualifications for Members of Parliament. Articles 84 and 173 do not confer any constitutional right to contest elections30 either for Parliament or State legislature because that is subject to the power of the legislation to lay down any disqualification. 31 It is humbly submitted that the Government has reflected the will of the people through the present ordinance. There is no bar in the Constitution or RPA for prescribing minimum educational qualifications and with the improvement in the literacy rate of the country the present Amendment to the Act is inevitable.

24

Kesavananda Bharthi v. State of Kerala,(1973) Kerala, (1973) Supp 1 SCR, The fundamental rights and directive principles contributes the conscience of the Constitution. Constitution. 25 N.P.Ponnuswami v. Returning officer, Namakkal Constituency Constituency , AIR 1952 SC 64 26 Jyoti Basu v. Debi Ghosal ,AIR ,AIR 1982 SC 983 27 P.Nallathampy v. B.L. Sankar , AIR 1984 SC 135 28 Jamuna Prasad Mukhariya v. Lachi Ram, Ram, AIR 1954 SC 686 29 Javeed v. State of Haryana, AIR 2003 SC 3057 3057 30 In Jamuna In Jamuna Prasad Mukhariya v. Lachhi Ram, (1955) 1 SCR 608, the Court held, “The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statue. The Fundamental Rights Chapter has no bear ing ing on a right like this created by statute” 31 Raju. V.B v. Chief Electoral officer, Gujarat , AIR 1976 Guj66 4


2. THE TELECOM ORDER TARGETING WEBSITES PROMOTING REVENGE PORN IS VA LID. The telecom order targeting websites promoting revenge porn does not violate the fundamental rights guaranteed to the citizens as it is not absolute and is subject to reasonable restrictions. 2.1. Au thor i ty of the gove gover nm ent to pass pass the teleco telecom m or der der . Revenge pornography is posting of sexually explicit content without consent of the other party involved, with intention to defame or harass. It is a form of harassment and an invasion of privacy. 32 In Pammu, although the term ‘revenge porn’ is not explicitly mentioned in any statute, it falls within the broader term ‘obscenity’. Under Section 79(3)(b) of the Information Technology Act, 2000 33 (hereinafter referred as IT Act) the Department of Telecom directed Internet Service Providers to block access to around 900 porn websites as the content hosted on these websites infringe the fundamental rights of the citizens. This order was passed due to rise in pornography related crimes. The National Crimes Record Bureau data showed a 63.7% rise in cyber crimes. 34 Transmission of obscene content spiked up 104.2% from 2012 to 2013.

2.2. Censors Censorshi hi p on I ntern et content i s perm perm it ted. ted. Further, Art 19(2) grants power to the government to make any laws which affect morality or decency.35 In Shr eya Sin ghal v. Un ion of I ndia,36 it was held that “Section 69A of the IT

32

Citron & Franks, Criminalising Revenge Porn (2014) Porn (2014) Exemption from liability of intermediary in certain cases:-(3) The provisions of sub-section (1) shall not apply if- (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. 34 As on July 2014 35 Protection of certain rights regarding freedom of speech etc : (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. 36 Shreya Singhal v. Union of India ,(2013) 12 SCC 73 33

5


Act,37 under which the Centre can exercise its power to issue directions to block an internet site, is constitutionally valid ”.38 Section 66E provides punishment for violation of privacy 39 and Sec. 67A provides for the offence of publishing material which contains sexually explicit act or conduct. 40 The Government could either pass order to block websites pursuant to a court order or if it is satisfied that there arises a necessity in the interest of defence, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above 2.3. Reve Revenge Porn ography ogr aphy and i ts bear bearii ng on soci soci ety. ety. Revenge pornography is posting of sexually explicit content without consent of the individuals involved, with intention to defame or harass. 41 The impact of revenge porn is severe and the immediate effect is the social stigmatization of the victim by blaming them for the pictures and character assassination. This may lead to depression, social alienation and in some extreme cases suicide attempts by those who cannot handle the pressure of dealing with such targeted vengeance.

37

Power to issue directions for blocking for public access of any information through any computer resource. (1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign st ates or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of subsections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed. (3) The intermediary who fails to comply with the direction issued under s ub-section (1) shall be punished with an imprisonment for a term which may may extend to seven years and also be liable to fine. fine. 38 A summary of the judgement- 1.Blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. 2. Such necessity is relatable only to some of the subjects set out in Article 19(2). 3. Reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition. 39 Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. 40 Carries a punishment of imprisonment for a term that may extend to f ive years with fine up to ten lakhs. 41

Citron & Franks, Criminalising Revenge Porn (2014) 6


A work is obscene if the average person applying contemporary community standards finds that the work taken as a whole, appeals to prurient interest, if the work depicts or describes in a patently offensive manner any sexual conduct. 42 2.4. Reve Revenge nge Porn Porn ography f all s wit hi n th e ambit of Obsce Obsceni ty Obscene is any act or words or representations that shock public ideas of sexual purity or modesty.43 It is offensive to chastity or modesty or expressing unchaste and lustful ideas, impure or lewd. 44 Obscenity means representations dealing with sexual matters in an offensive way while pornography means writing or pictures intended to stimulate erotic feelings by portraying sexual activity.45 Freedom of speech and expressions to every citizen is not absolute if such speech and expression is immensely gross and violates the standards of morality. 46The IT Act provides for taking action against the perpetrator of any kind of online revenge porn. 2.5.Vi olati on of Pr ivacy of Reve Revenge Porn vi ctims The IT Act47 provides punishment to whoever ‘knowingly captures, captures , publishes or transmits the image of a private area of a person’ under Sec.66E. 48 Provisions of this section specifically deal with privacy of a person. 49 For an offence under Section 66E, the accused intentionally or knowingly should capture, publish or transmit the image of a private area of any person without his or her consent50 thus violating the privacy of that person. 51

42

Justice Rajendra Babu, Freedom Babu, Freedom of Speech – Speech – New New perspectives , perspectives , (2000)2 LW (JS) 97 (2) Taxman’s law dictionary , dictionary ,“The “The test for obscenity is whether the words would tend to defame the morals of persons who would see the publication of suggesting lewd thoughts thoughts and exciting sensual desires”. desires”. 44 State v. Thakur Prasad , AIR 1959 All 49 45 Justice Thakker C.K, Law lexicon. 46 Ajay Goswami v. Union of India, India, (2007) 1 SCC 143 47 2008 Amendment. 48 Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. 43

49

Explanation — For the purposes of section 66E — e) e) “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that — (i) (i) he or she could disrobe in privacy, without being concerned that an a n image of his private are a was being captured; or (ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

7


State of T amil Nadu In Rajagopal V. State ,52 origins of Right to privacy 53 was traced,

‘If the Court finds that a claimed right is entitled to protection as a privacy right, a law infringing it must satisfy the compelling State interest test. Privacy interest in autonomy must be placed in the context of other rights and values ’ . Revenge porn is a gross violation of right to privacy of the vi ctim 54 and the first step towards protecting such persons is a ban on such websites55. Right to privacy is not absolute. 56 If there were a conflict between fundamental rights of two parties, that right which advances public morality would prevail.57 A citizen has a right to safeguard the privacy of his own and his family. None can publish anything concerning the above matters without his consent 58. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages59. Right to privacy must be subject to restriction on the basis of compelling public interest”. interest”.60 There are other accessible pornographic websites. The object of ban is to control proliferation of non-consensual pornographic websites. 2.6. Penali Penali zin g provisions provisions under under I T A ct and and I PC Section 67 of the IT Act 61 penalizes publishing and transmission of online pornography. To be considered obscene for the purpose of this section, the matter must satisfy at least one of the following conditions:

50

State v. Lalit Chauhan, Chauhan , Section 66E was attracted, when an accused administered some intoxicating substance in the drink of the victim with intent to cause hurt by taking nude pictures of her and made video film of the victim without her consent, violating her privacy. 51 Lakshmi Prathapan v. State of Kerala, 52 Rajagopal v. State of Tamil Nadu, Nadu , 1994 SCC (6) 632 53 Relying upon United States Supreme Court decision in Griswold v. Connecticut,381 Connecticut, 381 U.S. 479 (1965)and Roe v. Wade, 410 U.S. 113 (1973); Supreme Court in Kharak Singh v. State of U.P &Ors.,1964 &Ors., 1964 SCR (1)332 54 Soma Rama Chandram v.The State Of Andhra Pradesh , 2013(3) RCR (Civil) 707 55 Ibid 56 Sharda v. Dharmpal , AIR 2003 SC 3450 57 Rohit Shekhar v. Shri Narayan Dutt Tiwari & Anr, 2011(4) RCR (Crl.) 307 58 Munn v. Illinois, Illinois, (1877) 94 US 113; Wolf V.Colorado, V.Colorado, (1949) 338 US 25 59 Supra note 51 60 Gobind v. State of Madhya Pradesh & Anr,(1975) Anr,(1975) 2 SCC 148 61 In Pammu, the very first reported case of teen revenge in the cyber space came out as early as in 2001, when a 16 year old Delhi school boy created a porn website and posted porn images of girls and teachers with lewd remarks. Reports suggest that he did as revenge to these girls who taunted him. He was arrested under S 67 of IT Act for charges of Obscenity in Cyber Space.

8


1. It must tend to excite lust, 2. It must arouse interest in lustful l ustful thoughts, 3. It must cause a person to become morall y bad. Obscenity is punishable under the IPC. The sex-related materials which excite lustful thoughts is obscene from an average person’s point of view .62Revenge Porn satisfies the two conditions necessary to attract Sec. 292, namely: 1.Treatment of sex in a manner offensive to public decency, 2.Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech s peech and expression. expression .63The standard to test obscenity should not be that of an immature teenager or an abnormal person but of a normal, that is a person with menssana in corporissana. corporissana . 2.7. I nternational Conventi : Conventi ons on on Right to Pri vacy vacy and and Pr otection otection of women women Majority of the revenge porn victims are women. 64They are forced to move towns, changed names, and lost jobs and yet continued to be solicited and stalked by strangers. 65 The Indecent Representation of Women (Prohibition) Act, 1986 also punishes indecent representation of women.66 U.N also emphasises on ban of revenge porn. 67 It is violative of Articles in Istanbul Convention68 and other conventions. 69

62

Aveek Sarkar v. State of West Bengal , (2014) 4 SCC 457 Ranjit D. Udeshi v. State of Maharashtra, Maharashtra , (1965) 1 SCR 65 64 In a survey conducted by CCRI, it was found that 93% of the victims are females. 65 National Crimes Record Bureau (NCRB) figures — released released on July 1, 2014 — show show a 63.7 per cent rise in cyber offences from 2012 to 2013. During this period, the category "transmission of obscene content in electronic form" reflects a quantum jump — 104.2 104.2 per cent — with with 1,203 cases registered and 737 people arrested. "The data show cyber offences against women have increased sharply." 66 Section 2 ( d ), “Indecent repre sentation of women means the depiction in an y manner of the figure of a woman, her form or body or any part thereof in such a way as to have effect of being indecent, or derogatory to or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals.” 63

67

UN observed World Telecommunication and Information Society Day to raise awareness of the possibilities, internet can bring to our society. It is a chance to take efforts to protect women’s rights on the internet. 68 The Council of Europe Convention on preventing and combating violence against women and domestic violence 69 Additional Protocol to the Council of Europe’s Convention of Cybercrime recognises racist and xenophobic hate speech on the internet as a violation of the Convention for the Elimination of Racial Discrimination 9


Revenge pornography is a breach of privacy and a form of violence against women in cyber space70. Failure to protect women from revenge porn is a failure to protect their human rights on the internet. The right to privacy is also given extreme importance internationally by various Covenants. Article 8 of The European European Convention on Human Rights addresses problems on privacy.71 Article 17 of ICCPR 72 and Article 12 of the UDHR 73enshrines the Right to privacy. Therefore, the right to privacy would be subject to such action as may be lawfully taken for the prevention of crime or protection of health or rights rights and freedoms of others. Many Countries have criminalized revenge porn, or are using existing laws to prosecute the incriminators of revenge porn. revenge porn. New Jersey’s invasion of Privacy Privacy law74 has been considered a model by advocates of criminalizing revenge porn. Liberal States themselves have laws to curb revenge porn websites. Therefore, this ban is a necessity in Pammu and the contention of the petitioner that there is a violation of fundamental right is frivolous and baseless. 3. WHETHER

GAUVANSH

SANRAKSHAN

AND

GAUSAMVARDHAN

ACT

OF

2015

IS

CONSTITUTIONALLY VALID.

The Act of 2015 does not violate any of the provisions under the Pammu Constitution. It was enacted to fulfil the Directive principles as framed in Part IV of the Constitution. In 2005, the Constitutional bench of the Hon’ble Hon’ble Supreme Court in the case of State Of 75 Guj arat v. M ir zapur apur M oti Ku reshi reshi Kass Kassab Jammat Jammat and Ors , declared the provisions of

The Bombay Animal Preservation (Gujarat) Amendment Act, 1994as constitutionally valid

70

Recommendation (2002) 5 of the Committee of Ministers of the Council of Europe to member states on the protection of women against violence, “The states have an obligation to exercise due diligence to prevent, investigate an d punish acts of violence, whether those acts are perpetrated by the state or private persons, and provide protection to victims...”. 71 (1). "Everyone has the right to respect for his private and family life, his home and his correspondence., (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the pro tection of the rights and freedoms of others. 72 “No one shall be subject to arbitrary or unlawful interference with his privacy ,family, human or correspondence, nor to lawful attacks on his honour and reputation”. 73 No one shall be subjected to arbitrary interference with his privacy, family, home or o r correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 74 Enacted in 2003 before revenge porn came to national attention. It prohibits selling, providing, publishing, distributing, or otherwise disseminating nude or sexual photos of another person without witho ut that person’s permission. 75 State Of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat and Ors, Ors , AIR 2006 SC 212 10


and also upheld the total ban on slaughter of cows, calves, bulls and bullocks irrespective of the age thus delivering the landmark judgement.

3.1. The Act is in fu r ther ther ance of Ar ticle 48 of the Constituti Constituti on The provisions under Part IV of the Constitution contain certain directives which embody the aim and objective of the Government to achieve a welfare State. 76 The DPSP do not override the Part III but in determining the ambit of the fundamental rights, the Courts may not entirely ignore the Directive Principles. 77 The ban on slaughter of cows, bulls and bullocks is in consonance with the policy in Art 48. 78 The Article provides a clause that the State shall endeavour to prohibit slaughter of cows and calves and other milch and draught cattle. When Art 48 is read in two parts, the scope of the first part relates relat es to State’s duty to organise Agriculture and Animal husbandry on modern and scientific lines. The second part is to prohibit the slaughter of Cows, calves and other milch and draught draught cattle. The term ‘milch’ denotes a cow a cow or other domestic mammal, domestic mammal, giving giving or kept for milk. 79 Cow and calves are covered under the term milch but a special reference is made to them which impliedly empowers the State to make special legislations on Cows and Calves specifically and not on any other animals. On the lines of Article 48 the Government had to take steps for preserving and improving the breeds, and prohibiting slaughter of cows and other milch and draught cattle. Though Art. 48 is not a fundamental right, the Courts should evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in DPSP. 80 The Fundamental Rights are not an end in itself but are the means to an end. The end is specified in Part IV.81

76

Keshavananda Bharti v. State of Kerala, Kerala, (1973) 4 SCC 225 Kerala Education Bill, In re, re, AIR 1957 SC 956 78 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 Oxford Dictionary, 11 th edition. 80 U.P.S.E . Board v. Hari Shankar , AIR 1979 SC 65 81 Minerva Mill v. Union of India, India, AIR 1980 SC 1789 77

11


damental duty un der der Ar t51A(g) i mpose mposes an obli gationon the State State and i ts Ci tizens tizens 3.2.F un damental

Art 51A(g)82 creates a duty for all citizens of Pammu to have compassion for animals. 83 It creates a mandatory duty on every citizen including the government to show compassion towards animals. Fundamental duties are at par and have the same force as that of Directive Principles of state policy, and if State prohibits any act or conduct in violation of any of its duties, that would be upheld as a reasonable restriction. 84 In AI I M S Students ,85The Apex Court held that, tudents'' U nion v. AI I M S and Ors “State, in a sense, is all citizens placed together and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State.” 3.3. Th e Act benefi ts aged aged cattle Pammu’s total Pammu’s total bovine population86 is 299.9 million numbers in 2012 which shows a decline of 1.57% over previous census. The number of milch animals has increased from 111.09 million to 118.59 million, an increase of 6.75%. The number of cows and buffaloes has increased from 77.04 million to 80.52 million showing a growth of 4.51%. 87 There is an annual milk yield of 157 kg and 504 kg from cows and buffaloes respectively. 88 Between 2013 and 2014, there has 137.7 million tonnes of milk productivity in Pammu. 89 The cows are slaughtered because the owner of the cow finds it difficult to maintain, after it stops yielding milk. Apart from the milk, the cow dung as well as the urine of cow can be processed to achieve viable output which is used to prepare Vermi-compost or any other

82

T.N. Godavarman Thirumalpad v. Union of India and Ors , AIR 1997 SC 1228 To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures 84 N.R.Nair v. Union of India, India, AIR 2000 Ker 340 85 AIIMS Students' Union v. AIIMS and Ors, Ors , (2002) 1 SCC 428 86 Bovine here includes Cattle, Buffalo, Mithun and Yak 87 19thLivestock census, 2012, All India Report, Ministry Of Agriculture Department Of Animal Husbandry, Dairying And Fisheries, www.dahd.nic.in 88 The National Commission on Agriculture Report 1976, Department of Agriculture, Ministry of Agriculture and Irrigation, New Delhi 89 National Dairy Development Board statistics, Department of Animal Husbandry, Dairying & Fisheries, Ministry of Agriculture, Government of India, www.nddb.org 83

12


form of bio manure and urine for preparing pest repellents and medical formulations. The money collected by the sale of such products is sufficient for maintenance of cows. 90 Cow progeny excreta scientifically recognised as a source of rich organic manure which is a by-product in farming by bullocks and helps the soil by increasing its water holding capacity. There are other advantages in the use of organic manures namely (a) steadiness in yield over a period of time (b) benefit to the succeeding crops by their residual effects, and (c) ability to withstand unfavourable weather conditions.91 This helps in improving the quality of the earth and the environment. In State Of Guj arat v. M ir zapur M oti K ur eshi Kass Kassab Jammat Jammat and Or s,92 the Court observed that “ If one bullock is slaughtered for its meat, it can sustain the butcher’s trade for only a day. For the next day’s trade another bullock is to be slaughtered. But if the bullock is not slaughtered, about 5000-6000 dung cakes can be made out of its it s dung per year, and by sale of such dung cake one person can be sustained for the whole year. If a bullock survives even for five years after becoming otherwise useless it can provide employment to a person for five years whereas to a butcher, a bullock can provide provide employment only for a d ay ay or two”. two” . In this case the Supreme Court has set a precedent by upholding the total ban on slaughter of cows, calves, bulls and bullocks. 3.4.Th e ban on Slaugh ter ter i s a r easonable asonable restr restr icti on The Act does not infringe the rights of the Petitioner under Art. 25. As held in State of W est est Bengal Bengal and Ors v. v. Ashutos Ashutosh h L ahir i,93

Optional Optional religious s entiments cannot be covered under the ambit of Art 25(1)” entiments 25(1) ”.94

“

90

Report of the National Commission on Cattle (Rashtriya Govansh Ayog) July 2002 Department of Animal Husbandry & Dairying Ministry of Agriculture Government of India

91

First five year plan, some problems of agricultural development, para 22, Planning Commission of I ndia State of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat and Ors, Ors , AIR 2006 SC 212 93 State of West Bengal and Ors. v. Ashutosh Lahiri, Lahiri , AIR 1995 SC 464 94 The Court noted that, “ sacrifice of any animal by Muslims for the religious purpose on Bakrid does not include slaughtering of cow as the only way of carrying out that sacrifice. Slaughtering of cow on Bakrid is neither essential to nor necessarily required as part of the religious ceremony. An optional religious practice is not covered by Article 25(1). On the contrary, cow and its progeny, bull, bullocks and calves calves are worshipped by Hindus on specified days during Diwali and other festivals like Makar Sankranti and Gokulashtami. A good number of temples are to be found where the statue of 'Nandi' or 'Bull' is regularly worshipped”. 92

13


The Act is validated by the reasonable restrictions clause in Art 19(6). 95The term ‘restriction’96 in Articles Articles 19(5) and 19(6) includes ‘prohibition’ ‘prohibition’..97To determine the legality of total prohibition the Court need to balance the direct impact on fundamental rights of the citizens as against the DPSP.98 There must be a proximate nexus between the restrictions imposed and the object sought to be achieved by the Act which will give rise to a strong presumption in favour of constitutionality of the Act. 99 3.5.Th e Act pr omotes omotes Righ t to heal heal th as un der der Ar ti cles 21 and 47 of th e Constituti on It is humbly submitted ‘right to life’ under Art 21 includes right to health .100 Article 21 casts an obligation on the State to safeguard the right to life of every person. 101 Many research papers have concluded the consumption of beef to give rise to serious health issues 102 and it is the duty of the State to raise the level of nutrition and to improve public health as laid down in Art 47. 103

95

Nothing in sub clause (g) of the said clause shall affect the t he operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, partial, of citizens or otherwise 96

In Madhya Bharat Cotton Association Ltd. v. Union of India and Anr , Anr , AIR AIR 1954 SC 634, the phrase phrase ‘restriction’ has two well two well settled propositions: 1. 2.

restriction' includes cases of 'prohibition'. the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate;

whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case 97 Narendra Kumar and Ors. v. The Union of India and Ors, Ors , (1960) 2 SCR 375 98 Indian Handicrafts Emporium and Ors. v. Union of India and Ors, Ors , (2003) 7 SCC 589 99 O.K. Ghosh v. E.X. Joseph, Joseph , 1963 Supp. (1) SCR 789 100 CESC Ltd. v. Subhash Chandra Bose, 1992 AIR SC 573 101 Parmanand Katra v. Union of India, AIR 1989 SC 2039 102 Effects of stress and injury on meat and by-product quality, in Guidelines for Humane Handling, Transport and Slaughter of Livestock, Food and Agricultural Organisation(FAO), United Nations Organisation 103

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 14


Epidemiological studies show that red meat intake is associated with increased risks of diabetes, cardiovascular disease and certain cancers.104 International Covenants have also stressed on the obligation of the State to take care of its citizens. Article 25 of the Universal Declaration of Human Rights, 1051948 and the Preamble the World Health Organisation Constitution106 states about the right to health of the people107. Thus the averments made by the petitioner are completely baseless and it is submitted that the Gauvansh Sanrakshan and Gausamvardhan Act of 2015 is intra vires the vires the Constitution.

104

To make cows grow at an unnaturally fast rate, the cattle industry implants them with pellets full of hormones. These artificial hormones can cause health problems in people who consume beef. Archives of Internal Medicine (March Medicine (March 12, 2012) 105 Everyone has the right to a standard of living adequate for the health and well -being of himself and of his family. 106 It is one of the fundamental rights of every human being to enjoy “the “ the highest attainable standard of health”. 107 As to the trade of hides, skins and other allied things, it is not necessary that the animal must be slaughtered to avail these things. The animal would die a natural death and in that case their hides, skins and other parts of body would be available for trade and industrial activity. Therefore in the present case banning slaughter of cow, bulls and bullocks is not a prohibition but only a res triction.

15


PRAYER FOR RELIEF

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is Most humbly prayed before this Hon’ble Court that this Court may be pleased to adjudge and declare that 1. the petitions be dismissed 2. Pass any or other such orders that it may deem fit in the interest of justice, equity and good conscience.

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

Sd/COUNSEL FOR THE RESPONDENT

xiii

Lex Omnia 2015 Respondent.pdf

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