1.2.4.

1.2.4. It is violative of Article 21 of the Constitution of Staple

1. It is humbly submitted that the Order violates the essence of Art. 21, which provides for the
fundamental right to life and personal liberty. 1 The Indian Supreme Court has liberally
interpreted Art. 21 to include a plethora of human rights which are not expressly
mentioned.2 Since the landmark ruling of the Supreme Court in Maneka Gandhi v. Union of
India,3 the constitutional concept of “procedure established by law” has been synonymised
with the American “due process of law.” 4

2. It is humbly submitted before this Hon’ble Court that the word ‘law’ in Article 21 does not
mean merely ‘enacted law’ but incorporates principles of natural justice so that a law to
deprive a person of his life or personal liberty cannot be valid unless it incorporates these
principles in the procedure laid down by it. 5 The protection is not only against the executive
action but also against a legislation, unless the law for deprivation is reasonable, just and fair
both procedurally and substantially.6

3. The impugned Order infringes upon Art. 21 as first, the procedure established by law is not
just, fair, and reasonable [a], second, they violate the right to livelihood [b], and lastly, they
violate the right to personal liberty [c].

a. THE PROCEDURE ESTABLISHED BY LAW WAS UNJUST, UNFAIR, AND UNREASONABLE

4. In Kartar Singh v. the State of Punjab, 7 the Hon’ble Court held that procedure contemplated
by Art. 21 is that it must be "right, just and fair" and not arbitrary, fanciful or oppressive.

5. It is humbly contended before the Hon'ble Supreme Court that the procedure established by
law in the instant case is not just, fair or reasonable. Any law interfering with the personal
liberty of a person must satisfy a triple test - (i) it must prescribe a procedure; (ii) procedure
must withstand one of the tests of Art. 19 (whichever one is applicable); and (iii) it must also
be liable to be tested with reference to Art. 14. 8 However, the Order fails to satisfy the triple
test and hence forfeits the principle of ‘procedure established by law’

6. The onus of proof in the instant case lies on the State. This Court held it in Bachan Singh v.
the State of Punjab,9 which is a challenge under the provisions of Art. 21, once the petitioner
shows that his right has been taken away, it is for the State to justify that the procedure is
not arbitrary, rather it is just, fair and reasonable. The weakness of the petitioners cannot
establish the cause of the Government

7. Art. 21 of the Constitution is not absolute insofar as the rights contained therein can be
deprived by a procedure established by law. However, the Apex Court has held that this
1
INDIA CONST. art. 21.
2
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 910 (8th ed. 2018).
3
(1978) 1 SCC 248 (India) [hereinafter Maneka Gandhi].
4
6M.P. Jain, supra note 2 at p. 2237.
5
Union of India v. J.N. Sinha, (1970) 2 SCC 458.
6
Maneka Gandhi v. Union of India, ,1978 AIR 597, 1978 S.C.R. (2) 621 (India).
7
1961 AIR 1787, 1962 SCR (2) 395 (India).
8
District Registrar and Collector v. Canara Bank, Appeal (Civil) 6350 – 6374 of 1997.
9
AIR 1980 SC 898 (India).
 procedure cannot be arbitrary, fanciful or oppressive. In other words, the procedure
contemplated by Art. 21 must answer the test of reasonableness in order to conform to Art.
14. Arts. 14 and 21 are not mutually exclusive. 10

8. It is humbly submitted before the Hon’ble Court that the Govt., based on its self-formed
opinion, put restrictions on the dissemination of information relating to the management of
NOVID- 19 disaster and the containment measures by any state government, authority or
person.53 If the procedure established by law is unreasonable, Art. 21 read, and Arts. 14 and
19 can declare the law itself as unconstitutional. A law prescribing a procedure for depriving
a person of 'personal liberty has to meet the requirements of Art. 19. Also, the procedure
established by law in Art. 21 must answer the requirement of Art. 14 as well. This has made
this provision as prescribing a procedure which is unjust, unfair and unreasonable.

9. In the instant case, the ‘law’ established to deprive people of Thorland of their rights under
Art. 21 was the Order issued by Ministry of Information and Technology. The Order falls
squarely under the definition for law provided under Art. 13(3)(a) of the Constitution.69 The
procedure prescribed can be found in Telegraph act.70

10. The procedure prescribed and followed in the instant case is unreasonable as it fails the test
of the “golden triangle” first expounded in the case of Maneka Gandhi. 71 The impugned
Order run afoul of both Art. 14,72 and Art. 19,73 thus rendering it unconstitutional and
abrogative of Art. 21 as any law’s validity is to be tested under all three Articles together.
Therefore, it is submitted that the impugned Order amount to an unjust, unfair, and
unreasonable procedure.

b. THE IMPUGNED PROVISIONS VIOLATE THE RIGHT TO LIVELIHOOD

11. The Apex Court of India has held that the right to earn a livelihood is also subsumed under
right to life under Art. 21.74 The Supreme Court of India has also held that the Right to Life
guaranteed under Art. 21 derives its “life breath” from the Directive Principles of State Policy
given under Part IV of the Constitution.75 Art. 39(a) and Art. 41 place a duty upon the state
to secure the right to work for the citizens. Similarly, Art. 38(1) directs the state to promote
the social, economic, and political welfare of the people.

12. It is contended that the Right to Livelihood11 and Right to Work12 are an integral part
of the Right to Life and dignity of an individual. 13 In the case of Board of Trustees of
the Port of Bombay v. Dilipkumar R. Nandkarni 14, this court held thatan equally
important facet of right to life is the right to livelihood because, no person can live
without the means of living, that is, the means of livelihood. Thus, if there is an
obligation upon the state to secure to its citizens an adequate means of livelihood and

10
T.V. Vatheeswaran vs State Of Tamil Nadu, 1983 AIR 361 (India).
11
Centre for Environment and Food Security v. Union of India, (2011) 5 SCC 676.
12
Delhi Development Horticulture Employees' Union v. Delhi Admn., (1992) 4 SCC 99.
13
Centre for Environment and Food Security v. Union of India, (2011) 5 SCC 676.
14
Board of Trustees of the Port of Bombay v. Dilipkumar R. Nandkarni, (1983) 1 SCC 124.
 the right to work, it would be sheer pedantry to exclude the right to life from the
content of the right to life.

13. Furthermore, in the case of Anuradha Bhasin v. Union of India, while considering the
importance of internet this Court held that –

“In this context, we need to note that the internet is also a very important tool for
trade and commerce. The globalization of the Indian economy and the rapid
advances in information and technology have opened up vast business
avenues and transformed India as a global IT hub. There is no doubt that there are
certain trades which are completely dependent on the internet. Such a right of
trade through internet also fosters consumerism and availability of choice.
Therefore, the freedom of trade and commerce through the medium of the internet is
also constitutionally protected under Article 19(1)(g), subject to the restrictions
provided under Article 19(6).”

14. But in the present case the petitioner’s right to livelihood was violated by the internet
shutdown order of the Government. And pointed out, in today’s time, a lot of business
activities are depended only on internet and an arbitrary shutdown of internet directly
bars the people to work and earn livelihood which is in clear contravention with the
above provision. Hence, it is humbly submitted that the right to livelihood and right to
work of the petitioner as guaranteed under the umbrella of Articles 19(1)(g), 21, 38
and 39(a) is being violated.

15. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents
the consequential legislation envisaged under Art. 21-A, refers that every child has a right to
full time elementary education of satisfactory and equitable quality in a formal school which
satisfies certain essential norms and standards

16. Education occupies a sacred place within the Constitution and our culture. Art. 21A of the
Constitution, adopted in 2002, codified this Court's holding in Unni Krishnan, J.P. & Others v.
State of Andhra Pradesh & Ors., 92in which the SC established a right to education. The
Parliament did not merely affirm that right; the Amending Act placed the right to education
within the Constitution's set of Fundamental Rights, the most cherished principles of our
society.93

17. In Mohini Jain v. State of Karnataka, 94 it was implied that the "right to life" is the
compendious expression for all those rights which the Court must enforce because they are
basic to the dignified enjoyment of life. It extends to the full range of conduct which the
individual is free to pursue. It is contended that the right to education flows directly from
right to life. The right to life under Art. 21 and the dignity of an individual cannot be assured
unless it is accompanied by the right to education.
 18. The broad scope of this right was traced in R. D. Upadhyay v. State of A.P. & Ors., 95 which
explicitly held that the State must provide education to all children in all places, even in
prisons, to the children of prisoners. The judgment also went ahead to affirm the inviolability
of the right to education, even when the children so concerned are children of prisoners.

19. In the instant case,

20. In Vishaka v. State of Rajasthan, 98the Supreme Court has ruled that the International
Conventions as enforceable when these Conventions elucidate and effectuate the
fundamental rights under the Constitution. They have also been read as part of domestic
law, as long as there is no inconsistency between the Convention and domestic law.

1.2.4.3. The impugned order infringes upon the right to personal liberty

21. It is most humbly submitted before the Hon'ble Supreme Court that Part III of the
Constitution of Staple provides Fundamental Rights, which contains Article 21. Article 21
guarantees that an individual's life or personal liberty will not be taken away except
according to the procedure established by law. It is most humbly argued before the Hon'ble
Court that the restrictions infringe the petitioner's fundamental rights guaranteed under
Article 21 and are thus void. It is contended that according to Article 13(2), the State shall
not make any law which takes away the Fundamental Rights, and a law made in such
contravention, to the extent of the contravention, will be void.

22. It is humbly submitted before the Hon'ble Court that Article 21 forbids the state from
depriving anybody of their "life" except by procedure established by law. As a result, the
term "life" as used in Art. 21 must inevitably include the right to appropriate livelihood and
employment so that the person concerned is not reduced to a shadow of his true self and is
not reduced to a living skeleton. The same can be seen to be infringed here as the internet
shutdown disturbs the livelihood of many individuals who depends on internet and
technology communication platforms for their livelihood, education and day to day life. 30
Thus, such a regulation effectively hurts the right to livelihood of many individuals.

23. It is humbly submitted before the Hon'ble Court that if the right to livelihood is not
considered an integral component of the constitutional right to life, the easiest method to
deprive a person of his right to life is to deprive him of his means of livelihood till abrogation.
In Olga Tellis & Ors. v. Bombay Municipal Corporation, 31 this Hon'ble Court held that the
right to life, as defined in Art. 21 of the Constitution, included means of livelihood because, if
the State is required to provide citizens with an adequate means of livelihood and the right
to work, it would be utter pedantry to exclude the right to livelihood from the ambit of right
to life. The Hon'ble Court held in the aforementioned case, a case in which pavement
dwellers brought to resist eviction from their habitat by the Bombay Municipal Corporation,
that the right to livelihood arises from the right to life because no one can survive without
the means of livelihood.

24. . In Anuradha Bhasin Vs the Union of India, 32 the Hon'ble Court stated that there has
always been a conflict between liberty and security. Simply put, the decision before the
Court was whether there is a need for more liberty or security. Although the option appears
to be difficult, it must be ensured that every person has appropriate protection and liberty.
The pendulum of preference should not swing too far in either way, compromising one
preference at the expense of the other. It is not within the expertise to determine if being
free is preferable to being secure or being secure is preferable to being free. However, the
need to guarantee that individuals are afforded all of their rights and liberties to the
maximum degree possible in any particular scenario while maintaining security was
emphasized. It is contended that the lockdown regulation compromises with the freedom of
individuals in the name of security without attempting to regulate the situation with
regulatory nature of provisions and has put forth provisions restrictive in nature
simultaneously breaching the right to life and personal liberty of the people of Shikharabad.