WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE UNDER ARTICLE 32 OF

THE CONSTITUTION OF RASHTRA?

It is most humbly submitted before the Hon'ble Supreme Court that the present Writ petition

is maintainable because, it has requisite locus standi and interest in the present case and the

petition involves substantial questions of law. The question of law raised are the

constitutionality of the Order dated 1st June 2021 (“Order”) and Section 6 of the Disaster

Management Act 2005. There is no alternative and efficacious remedy in the present case.

Since the court is a “sentinel on the qui vive”. The writ petition is maintainable under Article

32 of the Constitution of Rashtra.

ARGUMENTS ADVANCED

1. THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF RASHTRA

¶1. It is most humbly submitted before the Hon'ble Supreme Court that the present Writ

petition is maintainable under Article 32 of the Constitution of Rashtra (Const.), 1 because,

firstly (1.1), it has requisite locus standi and interest in the present case, secondly (1.2), the

petition involves substantial questions of law involved, thirdly (1.3), there is no alternative

and efficacious remedy in the present case and, fourthly (1.4), the court is a “sentinel on the

qui vive” and hence, the writ petition is maintainable under Article 32 of the Const..

1.1. THE PETITIONER HAS LOCUS STANDI AND SUFFICIENT INTEREST.

It is most humbly submitted that this Hon'ble Court has held that a writ petition under Article

32 by a public-spirited person on behalf of a section of the society which complains of

violation of fundamental rights is maintainable2.

1
The Constitution of Rashtra and laws of Rastra are pari-materia with the Constitution of India and
laws of India.
2
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802.
3. A group of public-spirited individuals, including prominent journalists, doctors, authors

and public policy experts3 has the requisite locus standi to approach this court in the present

matter. Locus Standi means the right to bring an action, to be heard in court, or to address the

court on a matter before it4. In other words, the term “locus standi” can be understood as legal

capacity to challenge legislation, an order or a decision5.

4. Article 19(1)(a) not only guarantees freedom of speech and expression but also ensures and

comprehends the right of the citizens to know, the right to receive information regarding

matters of public concern and to disseminate the same which can be challenged by any

citizen.6

5. Furthermore, a petitioner will be deemed to have sufficient interest to maintain a writ

petition under Article 32 as a member of the public because it is the right of the public to be

governed by laws made in accordance with the Const. and not laws made by the legislature in

violation of the constitutional provisions7. It is submitted that the fundamental rights of the

citizens of Rashtra guaranteed under Articles 14, 19 and 21 have been infringed by the

impugned Order.

6. In the instant case, it is observed that the petitioners, including prominent journalists,

doctors, authors and public policy experts has filed the aforesaid writ petition for the pro

bono interest8 of the general public and general welfare of the people of Rashtra in

general9. Therefore, in light of this, each and every citizen of Rashtra has the right to question

3
prop
4
S.P. Gupta v. President of India, 1981 Supp SCC 87: AIR 1982 SC 149.
5
V.G. Ramchandran, Law of Writs, 26 (6th ed., 2006).
6
Uttar Pradesh v. Raj Narain
7
 D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378: AIR 1987 SC 579.
8
Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106: AIR 1987 SC 191.
9
prop
the same and therefore, petitioners by representing the people of Rashtra, in general have the

requisite locus standi and public interest in the present case.

1.2. THERE ARE SUBSTANTIAL QUESTIONS OF LAW INVOLVED

7. The facts and the circumstances of the case must disclose a substantial question of law for

a petition to be maintainable10. In the present case, three substantial questions of law have

been framed to be decided by this Hon'ble Court 11. Adjudication on these pertinent issues

necessitates the admission of the petition. The question of law raised are the constitutionality

of the Order date 1st June 2021 (“Order”) along with the Section 6 of the Disaster

Management Act 2005 (“the Act”).12

1.3. NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE TO THE

PETITIONER

8. It is humbly submitted that, approaching the Supreme Court under Article 32 for the

protection of fundamental rights is itself a fundamental right13. It is unnecessary to first

approach the High Court and exhaust the remedy under Article 226 before approaching the

Supreme Court14. Hence, it was held before this Hon'ble court that mere existence of an

adequate alternative legal remedy cannot be per se be a good and sufficient ground for

dismissing a petition under Article 3215. By the reason of the above holdings, the present

petition stands maintainable in the absence of an alternate and efficacious remedy.

1.4. THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”

10
M. Janardhan Rao v. Joint Commissioner of Income Tax, (2005) 2 SCC 324.
11
Memorandum on behalf of the Petitioner.
12
prop
13
Mohini v. State of Karnataka, (1992) 3 SCC 666: AIR 1992 SC 1858.
14
Romesh Thapar v. State of Madras, AIR 1950 SC 124.
15
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
9. This Hon'ble Court has repeatedly assumed the role of the “sentinel on the qui vive” 16 to

enforce fundamental rights of the people. It is humbly submitted that in light of the prevailing

circumstances in Rashtra, which are continuously depriving citizens of Rashtra of their

fundamental rights, the Court has the constitutional duty and obligation 17 to entertain this

petition. The Right to Freedom of Speech and Expression along with the Right to Receive

Information18, and the Right to Life and Personal Liberty 19, are fundamental rights. It is the

duty of the Courts to examine the merits of each case with respect to the prevailing situation,

looking at the fundamental rights violations alleged, and make a decision in view of the

changing notions of life and personal liberty of humans20.

2. Whether the order issued by the Government of Rashtra was in violation of the provisions

of the Constitution of Rashtra?

10. It is humbly submitted before the Hon’ble Court that the impugned order firstly, violates

Article 19 and 21 and 14 of the Const. and is thus unconstitutional. Secondly, the Order is

against the concept of federalism and thus is ultra vires to the provisions of the Const.

11. It is humbly contended that the test of reasonableness under Article 19 should be applied

to each statute impugned, and no abstract standard or general pattern of reasonableness can

be laid down as applicable to all cases.21

16
State of Madras v. V.G. Row, AIR 1952 SC 196.
17
Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 98.
18
INDIA CONST. art. 19.
19
INDIA CONST. art. 21.
20
Assam Sanmilta Mahasangha v. Union of India, (2015) 3 SCC 1.
21
VG Row v. State of Madras, AIR 1952 SC 196 (India)
12. It is humbly contended that there is always an initial presumption of validity of law 22 and

that due importance should be given to the legislative intent while deciding the

constitutionality of a provision.23

13. It is humbly contended that Art. 21 lays down that no person shall be deprived of his life

or personal liberty except according to the 'procedure established by law'. This procedure

cannot be fanciful and arbitrary but must answer the test of reasonableness to satisfy the

requirements of Art. 21.24

2.1. The order is in contravention with Article 19 of the Constitution of Rashtra.

14. Art. 19 protecting the freedom of speech and expression recognises the natural right to

Freedom of Speech and Expression of an individual is treated absolutely essential to his

being. The Supreme Court has held a speech to be undeniable human right from which almost

all other freedoms spring. The right under Art. 19 is also essential to the sustenance of

democracy and is necessary as a tool for proper governance in a constituted democracy.

Further, it is universally recognized. Free speech is a norm of international law under art. 19

of UDHR. Art. 19(2) of ICCPR protects freedom of expression in almost the same terms as

art. 19 of UDHR. The order sought by the Govt of Rashtra [“Govt”] to put restrictions on the

dissemination of information related to NOVID- 19 by the state governments, authorities and

persons is invalid because the restrictions violate the fundamental right to freedom of speech

and expression recognised under the Const. [2.1.1], and violate the provisions of the ICCPR

which has been ratified by Rashtra [2.1.2].

22
G K Krishnan v. State of Tamil Nadu, (1975) 1 SCC 375 (India)
23
Gita Hariharan v. Reserve Bank of India (1999) 2 SCC 228 (India).
24
Maneka Gandhi v. Union of India, 1978 AIR 597 (India).
 The order fails the test of reasonableness under Article 19 of the Constitution

of Rashtra.

15. The Fundamental Right to freedom of speech and expression can be restricted on the

grounds of public order, morality, national security, defamation and incitement to an offence.

The importance of the right to freedom of expression as regards individuals and societies has

been recognised in multiple judgements across jurisdictions. The Supreme Court of Rashtra

has widened the scope of this right by including the freedom of press. Presently, this right has

been violated by the Order because it restricts the freedom of the press and the journalists

[2.1.1.1]; it denies the citizens' right to access the information regarding NOVID- 19.

[2.1.1.2]

2.1.1.1. The freedom of press and the journalists has been restricted.

17. It is humbly submitted before the Hon’ble court that the primary duty of all the national

Courts is to uphold the said freedom and invalidate all laws or administrative actions which

interfere with it contrary to the constitutional mandate. 25. Acceptance by the government of a

dissident press is a measure of the maturity of the nation, 26 however this maturity is not being

showcased through the order passed by the Govt. According to Printers (Mysore) Limited v

Assistant Commercial Tax Officer,27 “the democratic credentials of a state are judged by the

extent of freedom the press enjoys in that state”, but the State of Rashtra seems to be steering

away from its democratic credentials, and is moving towards a rather despotic one.

18. The freedom of press is inherent to the right to freedom of speech and expression as

enshrined in Article 19 of the Const. This is because the freedom of the press is not so much

for the benefit of the press as for the benefit of the general community because the

25
Mineral Development Limited v. State of Bihar
26
New York Times vs Sullivan, “
27
Printers (Mysore) Limited v Assistant Commercial Tax Officer
community has a right to be supplied with information and the government owes a duty to

educate the people within the limits of its resources. However, this benefit of the public is

being curtailed in the case at hand.

19. According to Romesh Thappar v. State of Madras,28 imposition of pre-censorship on a

newspaper or prohibiting it from publishing its own views or those of its correspondents on a

burning topic of the day which here is the global pandemic NOVID-19, constitute an

encroachment on the freedom of speech and expression. It includes freedom to propagate

ideas which is ensured by freedom of circulation of a publication, as a publication is of little

value without circulation.

20. According to Bennett Coleman,29 freedom of press is not only limited to the volume of

circulation, but also brings into its purview the volume of news and views. It would not be

legitimate on behalf of the state to subject the Press to laws which take away or abridge the

freedom of expression or which would curtail circulation and thereby narrow the scope of

dissemination of information or fetter its freedom to choose its means of exercising the right

or would undermine its independence by driving it to seek Government aid.

21. In Sakal Papers v. UOI,30 the Court held that, "The freedom of speech and expression of

opinion is of paramount importance under a democratic constitution which envisages changes

in the composition of legislatures and Governments and must be preserved." Similarly, it

cannot be said that the statistics and information being published by the various media houses

and other sources would lead to the upheaval of public order.

28
Romesh Thappar v. State of Madras
29
Bennett Coleman
30
Sakal Papers v. UOI
23. Giving the central government the sole authority in such matters, it undermines the state

government’s capability to better understand its own state’s nuances and intricacies in matters

such as topography, demography etc. as the State Government is more equipped to tackle the

local issues whereas the central government has a bird’s eye perspective. Therefore, the state

should be held liable for infringement of freedom of speech and expression recognised under

the Art. 19 of the Const.

2.1.1.2. Public's right to access information regarding NOVID- 19 has been

denied

24. Right of the public to seek and receive information on the matters of public importance is

an important part of the right to freedom of speech and expression. The public's right to know

and the journalists' right and duty to publish information in the public interest constitutes an

essential aspect of freedom of speech and expression. Public's right to access information

includes the right of the general public to receive information from the media on matters of

public affairs and public importance. Matters of public importance include the well-being of

the citizens or the welfare of a community. As a means to protect the right of media users,

States parties are required to take particular care to encourage independent and diverse media

so that the public could receive a wide range of information and ideas.

25. According to Shreya Singhal v. UOI,31 if the right to freedom of speech and expression

includes the right to disseminate information to as wide a section of the population as is

possible, the access which enables the right to be so exercised is also an integral part of the

said right. The wider range of circulation of information or its greater impact cannot restrict

the content of the right nor can it justify its denial.

31
Shreya Singhal v. UOI
26. It embraces within its scope the freedom of propagation and interchange of ideas through

any available media whether print or electronic or audio-visual, acquiring and dissemination

of information without interference to as large a population in the country as is possible to

reach which would help formation of one's informed opinion.

27. Every citizen must be entitled to participate in the democratic process and in order to

enable him to intelligently exercise his right of making a choice, free and general discussion

of public matters is absolutely essential. 32 This ensures that decision-making process is

preceded by discussion and consideration of a representative range of views at all levels.

28. The freedom to receive and communicate information is an important aspect of the

freedom of speech and expression. Without adequate information, a person cannot form an

informed opinion. The order strips off the general public its right to make an informed

opinion in situations concerning the management and prevention of the disease caused by the

deadly virus.33

29. Interpretating Ajay Gautam v. Union of India & others,34 the right to communicate and

receive ideas, facts, knowledge, information is an essential component of freedom of speech

and expression. In the aforementioned case, the Court dismissed the petition as the petitioner

did not satisfy the Court of any sort of “clear and imminent danger‟. Therefore, in the instant

case, mischievous creation of law-and-order situation cannot be a ground for interfering with

the right to freedom of speech and expression unless commission of harmful acts is a real

close and imminent consequence of speech in question.

32
Maneka Gandhi v. UOI
33
Chief Information commissioner vs State of Manipur
34
Ajay Gautam v. Union of India & others
30. In Raj Narain,35 it was held that Article 19(1)(a) not only guarantees a citizen’s freedom

of speech and expression, but also incorporates there right to receive information in matters

of public concern which in the case under consideration is a widespread pandemic caused by

a deadly virus known as NOVID-19. The people of this country have a right to know every

public act, everything that is done in a public way, by their public functionaries. 36 The “public

act” here being the prevention and the management of the pandemic by the “public

functionaries”, being the central Government.

31. Presently, the restrictions imposed by the Govt's Order are hindering the role of the media

and journalists to bring to public knowledge the actions of the public officials.

2.1.2. The restrictions imposed upon the freedom of the press are not in

accordance with the provisions of ICCPR.

32. Art. 19(2) of ICCPR requires states parties to guarantee the right to freedom of

expression, including the right to seek, receive and impart information and ideas of all kinds

regardless of frontiers.37 The obligation to respect freedom of opinion and expression is

binding on every state party and branches at all levels. 38 All forms of expression and the

means of their dissemination are protected under Art. 19.39

35
Raj Narain
36

37
Art. 19: Freedoms of opinion and expression, H.R.C. General comment No. 34, U.N. Doc.
CCPR/C/GC/34, ¶ 13 (July 29, 2011).
38
The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, H.R.C.
General Comment No. 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13, ¶ 4 (Mar. 29, 2004).
39
Id. at ¶ 12.
33. Art. 19(3) of the ICCPR establishes a three-part test for the validity of restrictions on

freedom of expression.40 It requires that a restriction must be in accordance with the law

[2.1.2.1]; the restriction must serve a legitimate aim [2.1.2.2], and the restriction must be

necessary for a democratic society41 [2.1.2.3]. The restrictions imposed herein through the

Order are not valid under the Art. 19(3) of the ICCPR and Art. 29 of the UDHR as explained

below.

2.1.2.1. The restrictions are not governed by a defined law.

34. First, a restriction must be in accordance with the law. 42 This includes primary legislation,

as well as regulations and other legally binding documents adopted pursuant to it.43 The Order

passed by the govt does not fulfil the criteria and standards prescribed. It imposes an absolute

limitation upon the freedom of speech and excludes the possibility of positive criticism.

Further, there has been no definite legislation that formally governs the restrictions imposed

on the media houses, journalists and independent authors leading to violation of this limb of

the Test.

2.1.2.2. The restrictions are not pursuant to a legitimate aim.

36. Under the second part of the Test, a restriction on freedom of expression can be valid

only if it pursues a legitimate aim.44 For restrictions to be considered being pursuant to a

legitimate aim, a nexus should be established between the reasonable restrictions and the
40
Toby Mendel, Restricting Freedom of Expression: Standards and Principles, Centre for Law and
Democracy, http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-
Restrictions-onFOE.pdf.
41
Commission Regulation 2016/679, General Data Protection Regulation, art. 17(1)(c), 2016 O.J. (L
119); Gaweda v. Poland, App. No. 26229/95 2002-II Eur. Ct. H.R. ¶ 39 (2002); Feldek v. Slovakia,
App. No. 29032/95 Eur. Ct. H.R. ¶ 52 (2001); Konate v. Burkina Faso, App. No. 004/2013 Afr. Ct. H.
People's R. ¶ 125 (2014).
42
International Covenant on Civil and Political Rights art. 19(3), Dec. 16, 1966, 999 U.N.T.S. 171;
43
supra note 29.
legitimate grounds.45 The dissemination of information related to NOVID – 19 was an

attempt to inform the public about the exact statistics of NOVID- 19 and the various

preventive measures taken to prevent and manage its spread. The sole intention of the state

governments, media houses and journalists were to create awareness among the general

public and not to instigate any kind of panic. Therefore, the restrictions imposed on the media

does not serve any legitimate aim and hence it is unreasonable to restrict media from

publishing news on the present matter which holds great importance from the perspective of

public awareness and govt accountability towards the public.

2.1.2.3. The restrictions are not necessary for a democratic society.

37. Lastly, for a restriction to be necessary for a democratic society, it must fulfil a pressing

social need and should be proportionate to the legitimate aim pursued. 46 The Order hinders

the free speech of the media on the matter of the denial of human rights to the natives of

Rashtra. The fear of circulation of inconsistent and divergent data, and incitement to

aggravate situations related to NOVID- 19 cannot be considered as a justified reason or a

pressing social need for imposing such absolute restrictions. Therefore, the imposition of the

Order violates the democratic setup of Rashtra.

2.2. The order passed by the Government of Rashtra is in contravention of Article 21 of the

Constitution of Rashtra.

44
Sunday Times v. United Kingdom, App No. 6538/74 30 Eur. Ct. H. R. ¶49 (1979) [hereinafter
Sunday Times]; Malone v. The United Kingdom, (1984) 7 EHRR 1; Mueller v. Switzerland, (1988)
13 EHRR 212; Connally v. General Construction Co., 269 U.S. 385, 391 (1926); Coates v. Cincinnati,
402 U.S. 611 (1971); Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
45
O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 (India); Supdt. Central Prison v. Dr. Ram Manohar
Lohia, AIR 1960 SC 633 (India).
46
Supra note 31.
40. 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. 47 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.48

2.2.1. The Order does not follow the established principles of “procedure

established by law”.

41. In Kartar Singh v. the State of Punjab, 49 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.

42. 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. 50 However, the Order fails to satisfy the triple

test and hence forfeits the principle of ‘procedure established by law’.

43. The onus of proof in the instant case lies on the State. This Court held it in Bachan Singh

v. the State of Punjab,51 which is a challenge under the provisions of Art. 21, once the

47
Union of India v. J.N. Sinha, (1970) 2 SCC 458.
48
Maneka Gandhi v. Union of India, ,1978 AIR 597, 1978 S.C.R. (2) 621 (India).
49
1961 AIR 1787, 1962 SCR (2) 395 (India).
50
District Registrar and Collector v. Canara Bank, Appeal (Civil) 6350 – 6374 of 1997.
51
AIR 1980 SC 898 (India).
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.

44. 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. 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.

2.2.2. Infringement of Personal Liberty

48. It is humbly contended before this Court that the restrictions on the dissemination of

information compromises with the freedom of Press and journalists in the name of security

without attempting to regulate the situation with regulatory nature of provisions and has put

forth provisions which are restrictive in nature simultaneously breaching the right to life and

personal liberty of the people of Rashtra. In a conflict between security and liberty, the

pendulum of preference should not swing too far in either way, compromising one preference

at the expense of the other.52

2.2.3. The Object of the law is immaterial.

52
Anuradha Bhasin Vs the Union of India, Writ Petition (Civil) No. 1031 of 2019 (India).
49. It is humbly submitted before the Hon’ble Court that the importance of the ‘object’ of the

law cannot be made a ground to trample the right of life and liberty guaranteed to the

petitioner.53 This Hon’ble Court has clarified that even if the object of the legislation is

‘good’, the means to achieve that object cannot be violative of fundamental rights. 54 No Court

would be justified in ignoring the personal liberty of the accused in preference to the object of

the law.55 The intention of the legislature to put such harsh restrictions on the state

governments, authorities and persons on the basis of an assumption which has no proof,

cannot be made at the expense of the liberty of the individuals. Therefore, this object shall not

sustain because the law does not provide due recognition to the personal liberty of the people.

II.3. The order passed by the Government of Rashtra was violative of the principle of

Federalism

50. As per the Federal Structure of the Const., the legislative powers have been divided

between the Parliament and State Legislatures.56 The competing legislatures may not infringe

upon the each other’s legislative domain.57 The Order has been challenged on the ground of

legislative competence.

51. The essential characteristic of federalism is the distribution of limited executive,

legislative, and judicial authority among bodies coordinated with and independent of each

other.58 There being a division of powers between the Centre and the States, none of the

53
Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.
54
Supra note 27.
55
Mari Appa v. State of Madhya Pradesh, 1990 MPLJ 621.
56
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani& T.
S. Doabia & B. P. Banerjee eds., Vol. 8, 8th ed. 2012, p. 8626
57
State of Kerala and Ors.v. Mar AppraemKuri Company Ltd. and Anr., AIR 2012 SC 2375, ¶ 12.
58
In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964
Government can step out of its assigned fields, and if it does so, the law passed by it becomes

unconstitutional.59

53. It is humbly contended before the Hon'ble Court that the Central government, by

enforcing the Order on the subject 'Public Health' falling under the ambit of State list (List II),

violates the basic structure of the Const., i.e., federalism. Thus, submitted provisions are ultra

vires the Const. as [2.3.1] the ‘pith and substance’ of the order lies within the bounds of List

II of the Seventh Schedule and [2.3.2] that no resolutions under article 252 were passed by

the state legislatures as constitutionally mandated.

2.3.1. Health in ‘Pith and Substance’ falls within the exclusive

legislative competence of the states.

54. It is humbly submitted before the Hon’ble Court that the doctrine of ‘pith and substance’

is one of the key principles of interpretation used to construe entries classified under the three

lists of the Seventh Schedule of the Const..60 In order to determine whether a particular statute

comes within the purview of one legislature or the other, the pith and substance of the

enactment is to be looked into.61 If the ‘true nature and character’ of a legislation falls outside

the permissible limits assigned to the respective legislature then such law is ultra vires to the

const..62

55. The object of the impugned Order, is to stop the dissemination of statistics and

information related to the NOVID- 19 pandemic by the state governments. Secondly, the

circumstances due to which the impugned Order came into existence reveal that the Order is

59
Himalayan Lever v. the State of Maharashtra, (2004) 9 SCC 438 (India).
60
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, C.K. Thakker& S.S. Subramani& T.
S. Doabia& B. P. Banerjee eds., Vol. 10, 8th ed. 2012, p. 11731.
61
Jamshed N. Guzdar v. State of Maharashtra and Ors., AIR 2005 SC 862 at ¶ 88; Prafulla Kumar
Mukherjee and others v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60 at ¶¶ 35-38.
62
State of Maharashtra v. Bharat Shanti Lal Shah and Ors.,(2008) 13 SCC 5 at ¶ 30.
primarily concerned with 'Public Health’ and ‘Public Order'. Hence, the whole object of the

Order is to efficiently manage the ‘pandemic’. Thus, the petitioner humbly submits that the

pith and substance or the subject matter of the impugned Act is 'Public Health' and ‘Public

Order’. Only the offending part of the Order may be declared invalid in case it is sufficiently

separable from the rest of the Act.63 The relevant factors which must be considered to

ascertain the pith and substance of a statute are: [2.3.1.1] the object and purpose; [2.3.1.2] the

scope and; [2.3.1.3] the effect of the provisions.64

2.3.1.1. The object and purpose of the impugned section relates to subjects

exclusively enumerated in List II of the Seventh Schedule

56. In State of Rajasthan v. G. Chawla,65 giving significant importance to the object of

legislation in determining its pith and substance,66 it was held that a legislation controlling the

use of amplifiers was public health legislation under List II rather than a broadcasting

legislation under List I.67 In order to determine the object and purpose of a statute, we may

refer to the circumstances which prevailed at the time and necessitated the passing of the

Act.68 In State of West Bengal v. Union of India,69 the existing dearth of coal in the country

63
Lt. Col. Sawai Bhawani Singh and Ors v. State of Rajasthan and Ors., (1996) 3 SCC 105 at ¶ 8.,
R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628 at ¶ 5.
64
Offshore Holdings Pvt. Ltd.v. Bangalore Development Authority and Ors., (2011) 3 SCC 139 at ¶
64; A. S. Krishna v. State of Madras, AIR 1957 SC 297 at ¶16.
65
State of Rajasthan v. G.Chawla, AIR 1959 SC 544.
66
State of Rajasthan v. G. Chawla, AIR 1959 SC 544 at ¶ 14.
67
State of Rajasthan v. G. Chawla, AIR 1959 SC 544 at ¶ 15.
68
Shashikant Laxman Kale and Anr. v. Union of India (UOI) and Anr., AIR 1990 SC 2114 at ¶ 16,
State of Orissa and Ors. v. Mahanadi Coalfields Ltd. and Ors. at ¶¶ 5-7.
69
West Bengal v. Union of India, AIR 1963 SC 1241.
shaped the Court’s understanding of the object of Coal Bearing Areas (Acquisition and

Development) Act, 1957.70

57. To interpret the entries in Schedule Seven, none of them should be read in a narrow,

pedantic sense, rather that the 'widest possible' and 'most liberal' construction be put on each

entry, and that each general word in an entry should be held to extend to all ancillary or

subsidiary matters which can fairly and reasonably be said to be comprehended in it.71

58. We must refer to the various legislative fields under the seventh schedule to ascertain

which subject-matters fall under the exclusive competence of the States. 72 Entry 6 of the

State list empowers the State Legislature to enact laws related to Public Health and

Sanitation, Entry 4(b) of the State list empowers the State Legislature to enact laws related to

Health, Local Government, inter alia, and Police and Public Order also falls under the domain

of State Legislature.

59. Presently, Union of Rashtra is facing the outbreak of NOVID- 19 pandemic. The

impugned Order was used to empower the Central Government to reserve all the powers

regarding the dissemination of information relating to containment measures for NOVID- 19

with themselves. The opinion of the Central Government was that the inconsistent statistics

and information related to the NOVID- 19 disaster will lead to widespread panic, however,

this was just an assumption and there was no proof supporting this claim. In light of the

above, it is submitted that the primary objective of impugned Order is to stop the State

government from disseminating any information related to NOVID- 19 disaster to efficiently

70
West Bengal v. Union of India, AIR 1963 SC 1241 at ¶¶ 7-9.
71
The Elel Hotels and Investment Ltd. v. Union of India, AIR 1990 SC 1664, at 1669 : (1989) 3 SCC
698; State of Rajasthan v. Chawla, AIR 1959 SC 544 : 1959 Supp (1) SCR 904; Hans Muller v.
Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 : (1955) 1 SCR 1284; Navichandra
Mafatlal v. Commr. Of Income – tax, Bombay, AIR 1955 SC 58 : (1955) 1 SCR 829; See also
Welfare Assn. ARP v. Ranjit P. Gohil, (2003) 9 SCC 358 : AIR 2003 SC 1266;
72
M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010, p.
533.
manage the pandemic which comes under ‘Public Health’ and falls within the legislative

domain of the states.

2.3.1.2 The scope of the impugned Order relates to subjects exclusively

enumerated in List II of the Seventh Schedule

60. The meaning and importance of the provisions of an Act have to be enquired into in order

to determine its scope.73 The scope of a parliamentary statute must not fall within the ambit of

legislative fields enumerated in List II.74 Public Health is a subject-matter within the ambit of

Entry 6 of List II. However, the central government drew its power from Entry 23 of the List

III. Thus, we must ascertain the inter-relationship between the aforementioned entries.

61. In the event that an entry under List II confers a general power to State Legislatures

whereas specific power relating to the same subject-matter has been conferred to the

Parliament under List III, then the general power would be limited to the extent of the special

power.75 In Kerala SMTF v. Kerala TBO,76 it was held that the States would have the

exclusive power to legislate with respect to fisheries within their territorial borders.77

Similarly, In Re: Cauvery Water Disputes Tribunal,78 with respect to water it was observed

that the States had the exclusive power to legislate with regard to water which was present

solely within its territorial limits.79 In the present case, the Central government draws power

73
Orissa Cement Ltd. (M/s) v. State of Orissa, AIR 1991 SC 1676 at ¶ 37.
74
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431 at ¶ 25.
75
Indu Bhushan Bose v. Rama Sundari Debi, AIR 1970 SC 228 at ¶12.
76
Kerala Swathanthra Malaya Thozhilali Federation and Ors.v. Kerala Trawlnet Boat Operators
Association and Ors., (1994) 5 SCC 28.
77
Kerala Swathanthra Malaya Thozhilali Federation and Ors.v. Kerala Trawlnet Boat Operators
Association and Ors., (1994) 5 SCC 28 at ¶ 4.
78
In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC 552.
79
In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC 552 at ¶¶47-50.
related to the management of NOVID- 19 from Section and Public Health come within the

scope of the State legislature. Thereby, it is submitted that the scope of the Order lies within

the exclusive ambit of State Legislatures.

2.3.1.3. The Effect of the impugned section relates to subjects

exclusively enumerated in List II of the Seventh Schedule

62. Reflecting the object and purpose of the Order, the ostensible effect which the provision

would have would be on matters within the auspices of the State List which are public health,

public order and local government. Furthermore, the enforcement of the impugned section

may also lead to the encroachment on the jurisdiction of the State legislature. It is therefore

submitted that the ‘pith and substance’ of the impugned Order lies within the legislative

domain of the State Legislatures.

................2.3.2. THAT NO RESOLUTIONS UNDER ARTICLE 252 WERE PASSED BY THE STATE

LEGISLATURES AS CONSTITUTIONALLY MANDATED

63. The power to legislate with respect to subject-matters enumerated within the State List

may be vested in Parliament if desired by the States through a resolution passed by the State

Legislatures.80 In the instant case, the State Governments have not passed the requisite

resolutions under Art. 252.81 As the authority to legislate with regard to inter alia Public

Health has not been vested with Parliament, it is submitted that the impugned Order is

unconstitutional.

2.4. Section 6 of the Disaster Management Act, 2005 is ultra vires to the provisions of the

Constitution of Rashtra.
80
Article 252, Constitution of Rashtra. Maharao Sahib Shri Bhim Singhji & Ors. v. Union of India
(UOI) and Ors., AIR 1984 SC 234 at ¶ 24-25.
81
Factsheet.
64. Art. 14 of the Constitution of Rashtra provides right to equality to every person whether

citizen or not.82 Every human being is entitled to equality before the law and the equal

protection of the laws within its territory. 83 Art. 14 thus means that ‘equals should be treated

alike.’84 This provision corresponds to the equal protection clause of the 14th Amendment of

the U.S. Const. and adheres to the same concept of equality as in the UDHR.85

65. The rule of law which permeates the entire fabric of the Const. excludes arbitrariness. 86

Every State action must be non-arbitrary and reasonable. Otherwise, the Court would strike it

down as invalid.

66. It is humbly submitted before the Hon'ble Court that this new dimension of Art. 14

transcends the classificatory principle or the test of reasonable classification. 87 Hence, even if

the respondents can prove that there is a rational nexus between the restrictions imposed and

the object sought to be achieved, they would still have to establish the non-arbitrariness of

this impugned Order. The petitioners maintain that the impugned Order classifies as an

unreasonable and arbitrary law because of two reasons: firstly, it confers absolute discretion

on the state machinery secondly, leaving scope for administrative discrimination.

2.4.1. Absolute discretion

67. It is humbly submitted that in order to ensure the discretion is exercised correctly, the

Order in question must lay down some norms or principles according to which the

administrator has to exercise the discretion. Not doing the same gives rise to the danger of

official arbitrariness, which is subversive of the doctrine of equality. This guarantee against
82
In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1.
83
Faridabad CT. Scan Centre v. D.G. Health Services, (1997) 7 SCC 752
84
M. Jagdish Vyas v. Union of India, (2010) 4 SCC 150.
85
The Universal Declaration of Human Rights, 1948, art. 7.
86
Bachan Singh v. the State of Punjab, 17
87
MP JAIN, INDIAN CONSTITUTIONAL LAW 909 (7th ed. 2016)
any administration's action, which may be arbitrary, discriminatory or unequal, draws from

Art. 14 and has evolved over time. 88 Moreover, discretionary power may not necessarily be a

discriminatory power. However, where a statute confers power on an authority to decide

matters of the moment without laying down any guidelines or principles or norms, the power

must be struck down as violative of Art. 14.89

68. It is humbly submitted before the Hon'ble Supreme Court that Art. 14 secures all persons

against arbitrary laws and arbitrary application of laws. Thus, ensuring non-discrimination in

state action both in the legislative and the administrative spheres. In the Order imposed by the

Government, to disseminate any information related to NOVID- 19 pandemic, the state

governments or authorities or persons need to take prior written approval from the Central

government. Thus, the Central government has the absolute discretion to either accept or

reject the approval on any ground.

69. In the instant case, sole discretion to either accept or reject the approval on the Union

Government is the source for this absolute discretion. "The law always frowns on unanalysed

and unfettered discretion conferred on any instrumentality of the State." 90 Where power

granted is open to use disproportionate to purpose to be achieved is invalid in the absence of

guidelines or principles or norms which are 'essential' for the exercise of such power. 91 With

the help of this Order, the Central Government can easily reject any information which is not

consistent with the official data, even if the said information is correct, just to save the image

of its own government.

2.4.2. Administrative discrimination

88
Shrinivasa Rao v. J. Veeraiah, A.I.R. 1993 SC 929 (India).
89
MP JAIN, INDIAN CONSTITUTIONAL LAW 911 (7th ed. 2016)
90
SheoNandanPaswan v. the State of Bihar, A.I.R. 1987 SC 877, 895 (India).
91
District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 (India).
70. It is humbly submitted before the Hon'ble Supreme Court that Art. 14 deems

discrimination in the actual exercise of any discretionary power as illegal. It is contended that

while the Order already suffers from the vice of conferring absolute discretion to the state

machinery, it also allows the administrative authority to implement it in a discriminatory

manner.

71. In the Order imposed by the Government, the administrator is left with absolute and a

wide ambit of power to decide on the approval or rejection of reports or news related to

NOVID- 19 pandemic on their own sole discretion, which breaches the principles as laid

down within the purview of Art. 14.

72. Art. 14 not only guarantees equal protection as regards to substantive laws, but procedural

laws come within its ambit as well.92 The implication is that all litigants similarly situated are

entitled to avail themselves of the same procedural rights for relief and defence with like

protection and without any sort of discrimination.

73. It is further submitted that when arbitrariness or unreasonableness is found in a scenario,

there is a denial of the rule of law. 93 The Order imposed thus can be deemed unconstitutional

as they fail to check the discretion and the power of administrators and the protection against

unreasonableness.

3. Whether the order issued by the Government of Rashtra was ultra vires with respect to

the provisions of the Disaster Management Act, 2005 itself.

74. It is humbly submitted before the Hon’ble court that as per the provision of Section 6(2)

(a) of the Act, the National Authority is responsible for laying down the policies on disaster

management for ensuring timely and effective response to disaster, which include the steps to

92
Shri Meenakshi Mills Ltd., Madurai v. A.V. Visvanatha Sastri25
93
Bachan Singh v. the State of Punjab, 26
ensure the availability of the subjects mentioned in the order so that the affected individuals

could be treated as per their needs and the disaster could be mitigated whereas the NDMA in

the instant case through clause 1(A) of the order has overstepped its authority by giving

orders to control information relating to the total number of persons infected by NOVID-19,

persons recovered and deaths from NOVID-19 which was not given in the Section 6(2)(a) of

the Act, which makes the order ultra vires with respect to the provision

It is humbly submitted before the hon’ble court that the provision of Section 6(2)(a) of the

act, the National Authority is responsible for laying down the policies on disaster

management for ensuring timely and effective response to disaster, which could include the

steps to ensure the availability of the subjects such as medical oxygen and drugs, health

infrastructure for treatment, etc, mentioned in the order so that the affected individuals could

be treated as per their needs and the disaster could be mitigated whereas the NDMA in the

instant case through clause 1(B) of the order has overstepped its authority by giving orders to

control information relating to the aforementioned subjects which does not fall inside the

purview of the Section 6(2)(a) of the act, which makes the order ultra vires with respect to the

provision.

76. It is submitted before the apex court that Section 6(2)(i) of the act authorises the

government to take measures for the prevention of disaster, or the mitigation, or

preparedness and capacity building for dealing with the threatening disaster situation or

disaster, whereas the government in the aforementioned order has not included clauses

which include prevention, mitigation, or preparedness rather have solely focused on

monopolising the source of information about the availability of the pertaining subjects

which is outside the scope of the Section 6(2)(i), with the help of which the government has

brought out the order. Thus, making the order ultra vires of the Act.
77. It is humbly submitted before the Hon’ble court that Clause 2 of the order is ultra vires

with respect to the Section 22(2)(n) as the clause provides only central government the power

to disseminate information and controls state government to only issue the official

information by the central government while the said provision of the act implies that the

State Executive Committee have the responsibility to act as the coordinating and monitoring

body which would include collecting and disseminating information for management of

disaster in the State as per Section 22(1) of the Act and  provide information to the National

Authority relating to different aspects of disaster management as per Section 22(2)(n) of the

act whereas the order restricts the state authority to function as per the provisions of the Act.

78 It is submitted that the order issued only authorises the Central government with the

responsibility to disseminate information and only official information could be put forth as

per clause 2 of the order or after getting approval from the Designated Officer of the Ministry

of Health, Government of Rashtra as per clause 3 and 4 of the issued order. The

aforementioned clauses are ultra vires with respect to the Section 24(k) of the Act which says

that for assisting and protecting the community affected by disaster or providing relief to such

community or, preventing or combating disruption or dealing with the effects of any

threatening disaster situation, the State Executive Committee may disseminate information to

public.

79. It is most humbly submitted before the court that the order only gives central

government the power to disseminate information with respect to the aforementioned

subjects which goes beyond the Section 30(2)(xxvi) of the Act as it allows the district

authorities to disseminate proper information to public of the particular district. However,

the order violates the provision and takes away the power from district authorities which
could help in the containment of NOVID- 19 at a grass root level that too in an efficient

manner.

80. It is submitted that in furtherance with the above section, Section 31 of the Act which

lays down the District Plan to mitigate disaster situation talks about the role of district

authorities in the management within a district which include the dissemination of

information to the public as per Section 31(3)(d)(v) of the Act whereas the past order

restricts the functioning of the district authorities. Thus, making the order ultra vires.