Permission to initiate the proceedings

Permission to address the bench collectively as Your lordships

May it please the Court. Good afternoon, your lordships. My name is Ritu Raj. Along with
my co-counsel Nishtha Shukla and assisted by our learned researcher Aditya Jha, I shall be
representing the petitioners__________. Your Lordships I shall take 16 minutes of this
Hon’ble court’s time and I shall be dealing with the first two issues and thereafter my learned
co-counsel will be dealing with the third issue and be taking 13 minutes and thereby we’ll be
reserving 1 minute for the rebuttal.

Your lordships beginning with the first issue i.e., maintainability, the counsel submits that in
the case of Ratlam Municipality v. Vardhichand, it was held that a writ petition under Art 32
as a PIL by a public-spirited person on behalf of a section of the society which complains of
violation of fundamental rights is maintainable. Moreover, In the case of PUCL v. Union of
India, it was held that the rule of locus standi has been enlarged through PIL so as to evolve a
new strategy by relaxing this traditional rule of standing in order that justice may become
available to the lowly and the lost, and access to the judicial process only to those to whom
legal injury is caused or legal wrong is done has now been jettisoned by this Court. Here, due
to the actions of the Govt of Rashtra, the fundamental rights of the citizens under Art 14, 19
and 21 have been violated. Detailed arguments with respect to the same will be dealt with in
the subsequent issues. Since, the matter mentioned in the petition is of national importance
which has taken into its ambit every person residing in the country, therefore, the petitioner
has sufficient interest in the case.

Your lordships the counsel further submits that, In the case of Shantabai v. State of
Maharashtra, it was held that Article 32 can be invoked to adjudge the validity of legislation
or even an administrative order/action, if a violation of fundamental right is alleged by the
petitioner. Your lordships in furtherance of the same in the landmark case of DAV College v.
State of Punjab, it was held that even a prima facie case of violation of fundamental right or
threat of the same is enough for the maintainability of a writ petition. In furtherance of the
same the Counsel submits that the petitioner would as far as the issue of maintainability is
concerned, would build a prima facie case for violation of the fundamental rights arguing on
the merits of the same in the second issue.

Furthermore, your lordship in the case of State of Madras v. VG Row, it was held that this
Hon'ble Court has repeatedly assumed the role of the “sentinel on the qui vive” to
enforce fundamental rights of the people. In light of the prevailing circumstances in
Rashtra, which are continuously depriving a large section of the population of their
fundamental rights, the Court has the constitutional duty and obligation to entertain
this petition. in the case of Assam Sanmilta Mahasangh v. Union of India, it was
held that 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 humans.

If your lordships do not have any questions in this regard, then the counsel will seek
permission to move to the next issue.
Coming to the second issue i.e., WHETHER THE ORDER ISSUED BY THE GOVERNMENT OF
RASHTRA WAS IN VIOLATION OF THE CONSTITUTION OF RASHTRA? there are 4 grounds why the
counsel contends that this court should declare that the Order was violating the provisions of
the Constitution of Rashtra.

 First, under Article 19 of the Constitution, your lordship, the restrictions fail the test
of reasonableness.

 Second, your lordship, the order is in contravention with the provisions of Article 21
of the Constitution of Rashtra.

 Third, the order is violative of the principle of federalism.

 Fourth, your lordship, Section 6 of the Disaster Management Act 2005 contravenes
the provision of Article 14 of the Constitution

To address my first point, your lordships, the counsel would like to state that the Order dated
1st June 2021 fails the test of reasonableness under Article 19 as stated by the Hon’ble Court
in the case of ______.

Now coming to the test as laid down by the hon’ble court i.e., The nature of the right
infringed and the Underlying purpose.

Your lordships the nature of the right which the order passed by the Government
of Rashtra aims to infringe upon is a fundamental right, i.e., the freedom to
speech and expression and right to receive information which is enshrined in
Article 19 of the Constitution of Rashtra. It aims to create a new equality and
helps to preserve individual liberty it is quite crucial as it is the bulwark of
democratic government. It prevents the establishment of an authoritarian and a
dictatorial rule in the country by enabling its citizens to express their opinions
freely. It occupies a preferred position in the hierarchy of liberties giving succour
and protection to all other liberties.

Now coming to the Underlying purpose your lordships, then the underlying
purpose of the restriction imposed by the government of Rashtra was to take
effective measures for the containment and the prevention of the spread of the
officially declared pandemic known as NOVID-19. Around March-April 2021,
several media organizations started reporting allegedly divergent and inconsistent
statistics and information on important subjects relating to NOVID-19
management. The order issued aimed to issue containment measures in respect
thereof should only be based on officially verified data and sources through official
channels as the alleged divergent and inconsistent data was leading to widespread
panic amongst people including the medical fraternity and was derailing efficient
management of the NOVID-19 disaster. However, the restriction which ought to be
imposed and the restriction which was imposed in actuality were not consistent as
they were in fact arbitrary and of an excessive nature. This is because instead of
formulating guidelines for the various sources publishing statistics and information
to streamline and make factually reliant, the government of Rashtra, through its
order, placed a restrictive measure instead of a regulatory one. Moreover, this order
also curtailed the freedom of press and the right to acquire information and
disseminate the same.

Your lordships this order neither concurs with the felt need of the society and the
complex issues facing the people nor does it act in the furtherance of public
interest. Such is the case because by giving the central government the sole
authority in such matters, it undermines the state government’s capability to better
understand its own 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.

In this regard, Your Honours, one more aspect needs to be considered is whether the
restrictions imposed were appropriate or least restrictive i.e., the test of proportionality.

In the present case, Your Honours, the situation is contrary to the principle of proportionality.
The object to be achieved by the Order is to control the spread of widespread panic which is
just an assumption of the government and there is no proof supporting their clai,. and for that
the respondent imposed restrictive measures instead of regulatory measures for an indefinite
period. Due to this not only restrictions were imposed on the dissemination of information by
media houses but also on the state government. Your Honour, if there was any need of
regulatory measures then also such a harsh measure is disproportionate to the object sought to
be achieved by the legislation

Not only this your lordships, public’s right to access information regarding NOVID- 19 has
been denied. In the case of State of Uttar Pradesh v. Raj Narain and Secretary,
Ministry of Information and Broadcasting- Government of India v Cricket
Association of Bengal, the hon’ble Supreme Court was of the opinion 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. “In a government of responsibility like ours, where all the
agents of the public must be responsible for their conduct there can be but few
secrets. 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.” The “public
act” here being the prevention and the management of the pandemic by the “public
functionaries”, being the central Government. “To cover with veil of secrecy, the
common routine business, is not in the interest of the public. Such secrecy can
seldom be legitimately desired. It is generally desired for the purpose of parties and
politics or personal self-interest or bureaucratic routine.

Without adequate information, a person cannot form an informed opinion. The

government of Rashtra, through its order, is stripping 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.

Your lordship A free and independent press is considered to be key mechanism or

a crucial factor in a functioning, just and healthy democracy. Their primary
function is to provide comprehensive and objective information on aspects of a
country’s social and political life. As highlighted in the case of New York Times vs
Sullivan, “acceptance by the government of a dissident press is a measure of the
maturity of the nation”, however this maturity is not being showcased through
the order passed by the government of Rashtra. Moreover, going by the judgment
pronounced in the case of Printers (Mysore) Limited v Assistant Commercial Tax
Officer, “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.

Your lordship, 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.
So is the situation in the case at hand, as by driving the different media houses or
other sources seeking to publish any sort of statistics or information on the topic of
NOVID-19 to first be approved by the Government in regards of their
information’s legitimacy is an indirect and coercive way of steering them towards
seeking Government aid and also cuts down the volume of the news which is being
produced as the sole authority to publish it is kept by the Central Government all
for itself.

If Your Honours don’t have any question in this regard then I would seek permission to move
to the third part of my argument i.e, the impugned act is in contravention with the provisions
of Article 21 of the Constitution of Rashtra.
In the instant case, your lordships, the Order imposes restrictions on the dissemination of
information. If I may direct your attention to para of the proposition then the concept of
widespread panic was just based on the mere assumption of the government and there was no
proof backing the claim. Furthermore, in the case of Anuradha Bhasin v. UOI, justified the
conflict between liberty and security. In that case, Your Honours, it was the conflict between
the personal liberty of the people of Kashmir and their security from the threat of terrorism.
The Hon’ble Court held that the pendulum of preference should not swing too far in either
way, compromising one preference at the expense of the other and thus indefinite suspension
of the internet was illegal. In the same manner in the instant case there is a conflict between
the personal liberty of the people of Rashtra and their security from widespread panic. Your
Honours, the pendulum of preference swung too far on the restrictions side, compromising
personal liberty at the expense of the lockdown regulation. 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 as even if the object of the legislation is
‘good’, the means to achieve that object cannot be violative of fundamental rights.
Furthermore, we also contend that the procedure established by law in the instant case is not
just, fair, or reasonable. Just on the basis of their own opinion which had no proof supporting
it, the government imposed stringent restrictions on the dissemination of any information
related to NOVID- 19 and thus the Order fails requirements of Article 14 and Article 19 of
the Constitution because a law prescribing a procedure for depriving a person of 'personal
liberty has to meet the requirements of Article 19. And the procedure established by law in
Article 21 must answer the requirement of Article 14 as well. The Hon’ble Court in the case
of District Registrar and Collector v. Canara Bank held that any law interfering with the
personal liberty of a person must satisfy a (page change) 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. This part will
be dealt in my further submissions.  Not only this, Your Honours, the respondent has also
kept the discretion of allowing or disallowing any information with them, thus, making it
unjust, unfair and unreasonable.

If Your Honours don’t have any question in this regard then I would seek permission to move
to the second part of my argument i.e., Section 6 of the Act violates Article 14 of the
Constitution. Article 14 of the Constitution of Rashtra guarantees protection against
arbitrariness in state actions. And if I may direct your kind attention to para 18 of the written
submission then the Hon’ble Court in the case of Bacchan singh v. State of Punjab, held that
the rule of law which permeates the entire fabric of the Constitution excludes arbitrariness.
And even if the respondent establishes that there was rational nexus between the restrictions
imposed and object sought to be achieved, they still need to prove that the impugned act is
non-arbitrary. Your Honour, the impugned act is arbitrary and of an excessive nature because
of the two points i.e., it confers absolute discretion on the state administration and second it
leaves a large scope for administrative discrimination.

Your Honours, Justice Bhagwati in the case of Sheo Nandan Paswan v. the State of Bihar

observed that "The law always frowns on unanalysed and unfettered discretion conferred on

any instrumentality of the State''. In the present case, Your Honours, the respondent has kept

the discretion of allowing or disallowing any information with them. However, the

respondent has not laid any guidelines which they will follow while allowing or disallowing

any news to publish. 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. However, the Central
government has the sole discretion to either accept or reject the approval on any ground.

Thus, leaving absolute discretion on the administrator or the official on duty.

Moreover, the impugned Section along with conferring absolute discretion also allows the
administrative authority to implement it in a discriminatory manner. The Hon’ble Court in the
case of Shri Meenakshi Mills Ltd., Madurai v. A.V. Visvanatha Sastri held that Art. 14 not
only guarantees equal protection as regards substantive laws, but procedural laws come
within its ambit as well. 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. But this is not the case in the present case, In the Order
imposed by the Government, the administrator is left with absolute and wide ambit of power
to decide which news to allow and which not to, which breaches the principles as laid down
within the purview of Article 14.

If Your Honours don’t have any question in this regard then I would seek permission to move
to the third part of my argument

Federalism connotes a legalistic government. There being a division of powers between the Centre
and the States, none of the Government can step out of its assigned fields, and if it does so, the law
passed by it becomes unconstitutional. If the matter is within the exclusive competence of the State
Legislature, i.e., List II, then the Central Legislature is prohibited from making any law concerning the
same.

The Counsel submits that the said Order is ultra vires the principle of federalism because the ‘pith
and substance’ of the order lies within the bounds of List II of the Seventh Schedule and no
resolutions under article 252 were passed by the state legislatures as constitutionally mandated.

For applying the principle of pith and substance, the Hon’ble Court in the case of Bharat Hydro
Power Corporation Limited v. State of Assam, held that for applying the principle of pith and
substance regard is to be had to (i) the enactment as a whole (ii) to its main objective (iii) to the
scope and effect of its provision.

Your lordships 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.

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 data 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 section is to stop

the State government from disseminating any information related to NOVID- 19 disaster to

efficiently manage the pandemic which comes under ‘Public Health’ and falls within the legislative

domain of the states.

Now moving to the scope and effect part then 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.

Moreover, your lordships as per the fact sheet there was no mention of state legislatures passing a

resolution under Article 252 of the constitution and under this circumstance. 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.