WHETHER THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE UNDER ARTICLE 32 OF

THE CONSTITUTION OF RASHTRA?

It is most humbly submitted before this Hon'ble 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 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. THAT THE PUBLIC INTEREST LITIGATION IS MAINTAINABLE UNDER ARTICLE 32

OF THE CONSTITUTION OF RASHTRA

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

maintainable under Article 32 of the Constitution of Rashtra, 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 [1.3] and, fourthly (1.4), the court is a “sentinel on the qui

vive”. The writ petition is maintainable under Article 32 of the Constitution of Rashtra.

1.1. THE PETITIONER HAS LOCUS STANDI AND SUFFICIENT INTEREST.

2. 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. In the case of Uttar Pradesh v. Raj Narain6, this Hon'ble court had held that 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 can be challenged by any citizen.

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

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 and Section 6 of the Disaster Management Act 2005 12.

{rephrase and re-order}

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.

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

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 Constitution of Rashtra and is thus constitutional. Secondly,

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

Constitution.

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.
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

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, freedom of speech and expression 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

21
VG Row v. State of Madras, AIR 1952 SC 196 (India)
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).
fundamental right to freedom of speech and expression recognised under the Constitution of

Rashtra [“Const”] [A], and violate the provisions of the ICCPR which has been ratified by

Rashtra. [B]

2.1.1. 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 Rashtrian Supreme Court

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

been violated by the ResOr because it restricts the freedom of the press and journalists [i]; it

denies the citizens' right to access the information regarding NOVID- 19. [ii]

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

16. The press plays a very significant role in the democratic machinery and the courts have a

duty to uphold the freedom of the press and invalidate all laws and administrative actions that

abridge that freedom. A free, uncensored and unhindered press or other media is essential in

any society to ensure freedom of opinion and expression and the enjoyment of other rights.

The free communication of information and ideas about public and political issues between

citizens, candidates and elected representatives is essential. This implies a free press and

media to be able to comment on public issues without censorship or restraint and to inform

public opinion. Therefore, the freedom of the press includes freedom of publication, freedom

of circulation and freedom against pre-censorship.

17. A free and independent press is considered to be key mechanism or a crucial factor in a

functioning, just and healthy democracy. Even though they act as “neutral conduit of

information between the people and their elected leaders or a neutral form of debate”,

however their function goes much beyond. Their primary function is to provide

comprehensive and objective information on aspects of a country’s social and political life. It

also serves as a power antidote to any abuse of power by officials and as a means for keeping

the elected officials responsible to the people whom they were elected to serve. 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.

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

enshrined in Article 19 of the Constitution of Rashtra. 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 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, 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, constitute an encroachment on the freedom of speech and

expression. The freedom of speech and expression includes freedom to propagate ideas which

is ensured by freedom of circulation of a publication, as a publication is of little value without

circulation. Therefore, imposition of a ban upon entry and circulation of a journal within a

State is restriction of Article 19(1)(a). In the issue under consideration, the global pandemic

NOVID-19 caused by the deadly virus can be equated to the term “burning topic of the day”

and the restrictions imposed through the order issued by the government of Rashtra curtail the

Right to freedom of speech and expression of the press, hence encroaching upon their right to

advance public interest by publishing facts and opinions without which a democratic

electorate cannot make responsible judgments.

20. According to Bennett Coleman, the freedom of press as enshrined in Article 19 of the

Constitution of Rashtra, includes the right of the people to speak and express. This freedom is

not only limited to the volume of circulation, but also brings into its purview the volume of

news and views. Going by this pronounced judgment, 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. 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.

21. In the case of Sakal Papers v. UOI, the law in question was to directly control the right of

circulation of newspapers "which would necessarily undermine their power to influence

public opinion it cannot but be regarded as a dangerous weapon which is capable of being

used against democracy itself." The Court in this matter emphasized, "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 as the

same would play an extremely crucial role in the proper managementand prevention of the

pandemic as in this way both - the Government and the public themselves – would be able to

actively and responsibly participate in this process.

22. In the case of Mineral Development Limited v. State of Bihar, the Court has noted that in

today's free world, press freedom is at the core of social and political discourse, emphasizing

the significance of press freedom in democratic society. With a view to checking

malpractices interfering with the free flow of information, democratic constitutions all over

the world make provisions guaranteeing the freedom of speech and expression and laying

down the limits of interference with it. "It is, therefore, the primary duty of all the national

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

interfere with it contrary to the constitutional mandate."

23. 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 like the infection rate, deaths,

recovery rate, availability of hospital beds, medical oxygen, and essential drugs, etc. The

order issued by the government 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. The Order violates the freedom of press because they are absolute in nature on

account of non-publication of any valuable information or news pertaining to NOVID- 19

without the permission of Central government and the indefinite continuance of these

restrictions. 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.

Therefore, the state should be held liable for infringement of freedom of speech and

expression recognised under the art. 19 of the Constitution of Rashtra.

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. It ensures public access to

multitudes of ideas and philosophies. 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. This right embraces the public's need to seek the truth, its right to

participate in the debates of general interest, social change and decision making. 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. The citizens can make a request for information and the public

authority may provide such information if the public interests in disclosure outweigh the

harm to the protected interests.

25. According to Shreya Singhal v. UOI, 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.

26. The right to freedom of speech and expression is described as a "basic human right", "a

natural right" and the like. It embraces within its scope the freedom of propagation and

interchange of ideas through any available media whether print or electronic or audio-visual,

such as, advertisement, movie, article or speech, etc., acquiring and dissemination of

information without interference to as large a population in the country, as well as abroad, as

is possible to reach which would help formation of one's opinion and view point and debates

on matters of public concern.

27. In Maneka Gandhi v. UOI, Bhagwati J said, “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.” This

ensures that the most important function of the right to freedom of speech and expression as

well as the sanctity of democracy is maintained by ensuring that decision-making at all levels

is preceded by discussion and consideration of a representative range of views.

28. According to Chief Information commissioner vs State of Manipur, 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

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.

29. In Ajay Gautam v. Union of India & others, a petition was filed for prohibition on

exhibition of film “PK”. The Court held that “right to communicate and receive ideas, facts,

knowledge, information, beliefs, theories, creative and emotive impulses by speech or by

written word, drama, theatre, dance, music, film, through a newspaper, magazine or book is

an essential component of freedom of speech and expression. And this right cannot be

suppressed on ground of formation of harmful act by its audience as a result of such beliefs,

unless commission of harmful acts is a real close and imminent consequence of speech in

question.” In the situation at hand, 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 as the publishing of statistics and information

comes under the rightful and constitutional exercise of the right as pronounced in the above

judgment.
30. According to 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. The responsibility of officials to explain and to justify their acts is the

chief safeguard against oppression and corruption.”

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, thereby

denying the citizens' right to access information regarding the ‘actual’ situation of NOVID-

19.

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

accordance with the provisions of ICCPR.

32. The right to freedom of opinion and expression is of paramount importance in any

democratic society. 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. The obligation to respect freedom of opinion and

expression is binding on every state party and therefore all branches of the state and other

public or govt authorities, at whatever level are in a position to engage the responsibility of

the state party. All forms of expression and the means of their dissemination are protected

under art. 19. The term expression includes political discourse, commentary on public affairs,

discussion of human rights and journalism. This right includes the expression and receipt of

communications of every form of opinion subject to the provisions in art. 19(3) and art. 20 of

ICCPR.

33. Art. 19(3) of the ICCPR establishes a three-part test for the validity of restrictions on

freedom of expression. Only those restrictions are considered to be legitimate which meet this

strict three-part test. It requires that a restriction must be in accordance with the law [i]; the

restriction must serve a legitimate aim [ii], and the restriction must be necessary for a

democratic society [iii]. The restrictions imposed herein through the ResOr 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. This includes primary legislation,

as well as regulations and other legally binding documents adopted pursuant to primary

legislation. Under this part of the test, the power to authorise restrictions on freedom of

expression is essentially vested in the legislative branch of govt. A norm cannot be regarded

as ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate

conduct to a reasonable degree. The rules must be foreseeable to a degree that is reasonable

in the given circumstances.

35. The Order passed by the govt does not fulfil the criteria and standards prescribed under

art. 19(3). 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. Legitimate grounds for restrictions have interpreted to be

the respect for the rights or reputations of others and the maintenance and protection of public

order. Criticism of actions of the public officials is a sign of a functioning democracy and it

neither threaten the reputation of officials nor leads to public disorder. The speech or writing

must have a direct and proximate link with the danger it creates if published in the prevailing

circumstances. For restrictions to be considered being pursuant to a legitimate aim, a nexus

should be established between the reasonable restrictions and the legitimate grounds. The

dissemination of information related to NOVID – 19 was an attempt to inform public the

public about the exact statistics of NOVID- 19 and various preventive measures to control its

spread. The sole intention of the state governments, media chouses and journalists was 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. In a representative

democracy, public participation in political discourse is essential. The press, being a public

watchdog, is obliged to impart information on the matters of public interest eliciting general

debate in a democratic society. The public cannot be held liable if they carry on a peaceful

demonstration which goes wrong, so long as no threats were made. The citizens can criticize

their govt but that does not provide for the govt to suppress such criticism on the possible fear

that exercise of free speech could lead to an undesirable situation when there exists a threat to

public order.

38. 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 fake news 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.

39. It is humbly submitted before this Hon’ble Court that Article 21 of the Constitution of

Rashtra provides protection to life and personal liberty to all the persons, which can only be

deprived of any ‘procedure established by law’. Article 21 protects right to life and personal

liberty of citizens not only from the executive action, but from legislative action as well.25

25
Maneka Gandhi v. Union of India, ,1978 AIR 597, 1978 S.C.R. (2) 621 (India).
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. 26 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.27

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, 28 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. The expression "procedure established by law" extends to both substantive as

well as procedural law.29 Art. 21 envisages a fair procedure.30

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. In District Registrar and Collector v.

Canara Bank,31 it was held that 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. We find that there was a procedure prescribed. Moreover, when tested in

reference to Art. 14, the procedure is unreasonable. The failure of the procedure to satisfy the
26
Union of India v. J.N. Sinha, (1970) 2 SCC 458.
27
Maneka Gandhi v. Union of India, ,1978 AIR 597, 1978 S.C.R. (2) 621 (India).
28
1961 AIR 1787, 1962 SCR (2) 395 (India).
29
MP JAIN, INDIAN CONSTITUTIONAL LAW 1128 (7th ed. 2016).
30
Ranjitsingh Brahmajeetsing Sharma v. the State of Maharashtra, (2005) 5 SCC 294 (India).
31
Appeal (Civil) 6350 – 6374 of 1997.
test of equality or non-arbitrariness in and of itself proves its unreasonableness. The

stringency and utter disregard for basic human rights in the procedure established makes it

unjust.

43. It is also humbly submitted before the Hon'ble Court that the onus of proof in the instant

case lies on the State. This Court held it in Bachan Singh v. the State of Punjab, 32 37 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.

44. It is humbly submitted before the Hon’ble Court that the government of Rashtra, 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, Article 21 read, and

Articles 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 Article

19. Also, the procedure established by law in Article 21 must answer the requirement of

Article 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

45. Rashtra 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

32
AIR 1980 SC 898 (India).
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.

46. 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 restrictions

imposed on the dissemination of information related to NOVID- 19 pandemic on person

(which also includes journalists and media houses) disturbs the livelihood of many

individuals, including the media houses. Thus, such a regulation effectively hurts the right to

livelihood of many journalists and media person.

47. 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.

48. 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 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 restrictive in nature

simultaneously breaching the right to life and personal liberty of the people of Rashtra.

2.2.3. The Object of the law is immaterial.

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.33 It is not the ‘object’ of the state action or the ‘form’ thereof, which is material, it

is the ‘direct effect’ upon the right of the individual which shall be the ‘determining factor’

for judging the constitutional validity of the state action. 34 The Supreme 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.35 No Court would be justified in ignoring the personal liberty
33
Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.
34
R.C. Cooper v. Union of India, (1970) 2 SCC 298; Bennett Coleman v. Union of India, (1972) 2
SCC 788.
35
Supra note 27.
of the accused in preference to the object of the law.36 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 a component of the Federal Structure of the Constitution of Rashtra, legislative powers

have been divided between the Parliament and State Legislatures. 37 The competing

legislatures may not infringe upon the each other’s legislative domain. 38 The Order dated 1st

June 2021 has been challenged on the ground of legislative competence.

51. In the instant matter, the petitioner would like to point to the concept of federalism as

enshrined in the Constitution of Rashtra. The Hon'ble Court explained in In re: Under Article

143, Constitution of India, (Special Reference No. 1 of 1964), the essential characteristic of

federalism is the distribution of limited executive, legislative, and judicial authority among

bodies coordinated with and independent of each other. The supremacy of the Constitution is

fundamental to the existence of a federal State in order to prevent either the legislature of the

federal unit or those of the member States from destroying or impairing the delicate balance

of power which satisfies the particular requirements of States which are desirous of Union,

but not prepared to merge their individuality in unity.

36
Mari Appa v. State of Madhya Pradesh, 1990 MPLJ 621.
37
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
38
State of Kerala and Ors.v. Mar AppraemKuri Company Ltd. and Anr., AIR 2012 SC 2375, ¶ 12.
52. 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.44

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

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

violates the basic structure of the Constitution of Rashtra, i.e., federalism. Federalism

essentially means both the Centre and the States have the freedom to operate in their allotted

spheres of power, coordinating with each other. In SR Bommai v. the State of Kerala47, the

Hon'ble Court held that under the scheme of our Constitution, greater power is conferred

upon the Centre vis-a-vis the States, but it does not mean that States are mere appendages of

the Centre. Within the sphere allotted to them, States are supreme and the Centre cannot

tamper with its powers. More particularly, the courts should not adopt an approach, an

interpretation, which has the effect of or tends to have the effect of whittling down the

powers reserved to the States." Thus, submitted provisions are ultra vires the Constitution as

2.1] the ‘pith and substance’ of the order lies within the bounds of List II of the Seventh

Schedule and 2.2] 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 Constitution. 39 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.40 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 the

constitution.41

55. The object of the impugned Order, is to stop the dissemination of news related to the

management of NOVID- 19 pandemic by the state governments. Secondly, the circumstances

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

concerned with 'Public Health’ and ‘Public Order'. Hence, the whole object of the Act 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.42 The relevant factors which must be considered to

ascertain the pith and substance of a statute are: (i) the object and purpose; (ii) the scope and;

(iii) the effect of the provisions.43

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

exclusively enumerated in List II of the Seventh Schedule

39
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.
40
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.
41
State of Maharashtra v. Bharat Shanti Lal Shah and Ors.,(2008) 13 SCC 5 at ¶ 30.
42
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.
43
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.
56. In State of Rajasthan v. G. Chawla,44 giving significant importance to the object of

legislation in determining its pith and substance,45 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.46 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.47 In State of West Bengal v. Union of India,48 the existing dearth of coal in the country

shaped the Court’s understanding of the object of Coal Bearing Areas (Acquisition and

Development) Act, 1957.49

57. The Seventh Schedule to the Constitution spells out different fields of legislation under

the Union List (List I), State List (List II) and Concurrent List (List III). An important

principle to interpret the entries in Schedule Seven is that none of them should be read in a

narrow, pedantic sense; 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.51

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. 50 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

44
State of Rajasthan v. G.Chawla, AIR 1959 SC 544.
45
State of Rajasthan v. G. Chawla, AIR 1959 SC 544 at ¶ 14.
46
State of Rajasthan v. G. Chawla, AIR 1959 SC 544 at ¶ 15.
47
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.
48
West Bengal v. Union of India, AIR 1963 SC 1241.
49
West Bengal v. Union of India, AIR 1963 SC 1241 at ¶¶ 7-9.
50
M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010, p.
533.
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 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.

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 import of the provisions of an Act have to be enquired into in order to

determine its scope.51 The scope of a parliamentary statute must not fall within the ambit of

legislative fields enumerated in List II.52 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
51
Orissa Cement Ltd. (M/s) v. State of Orissa, AIR 1991 SC 1676 at ¶ 37.
52
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431 at ¶ 25.
power.53 In Kerala SMTF v. Kerala TBO,54 it was held that the States would have the

exclusive power to legislate with respect to fisheries within their territorial borders.55

Similarly, In Re: Cauvery Water Disputes Tribunal,56 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.57 In the present case, the Central government draws power

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

53
Indu Bhushan Bose v. Rama Sundari Debi, AIR 1970 SC 228 at ¶12.
54
Kerala Swathanthra Malaya Thozhilali Federation and Ors.v. Kerala Trawlnet Boat Operators
Association and Ors., (1994) 5 SCC 28.
55
Kerala Swathanthra Malaya Thozhilali Federation and Ors.v. Kerala Trawlnet Boat Operators
Association and Ors., (1994) 5 SCC 28 at ¶ 4.
56
In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC 552.
57
In Re: Cauvery Water Disputes Tribunal, AIR 1992 SC 552 at ¶¶47-50.
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.58 In the instant case, the State Governments have not passed the requisite

resolutions under A. 252.59 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.

64. Article 14 of the Constitution of Rashtra provides right to equality to every person

whether citizen or not.6 Every human being is entitled to equality before the law and the

equal protection of the laws within its territory.7 Article 14 thus means that ‘equals should be

treated alike.’ 8 This provision corresponds to the equal protection clause of the 14th

Amendment of the U.S. Constitution and adheres to the same concept of equality as in the

UDHR.9

65. This Hon'ble Court has held in Bachan Singh v. the State of Punjab, 17 the rule of law

which permeates the entire fabric of the Constitution of Rashtra excludes arbitrariness. 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.18 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

58
Article 252, Constitution of Aressia. Maharao Sahib Shri Bhim Singhji & Ors. v. Union of India
(UOI) and Ors., AIR 1984 SC 234 at ¶ 24-25.
59
Factsheet.
of this impugned Act. Art. 14 is primarily a guarantee against arbitrariness in state action, and

the doctrine of classification has been evolved only as a subsidiary rule for testing whether a

particular state action is arbitrary or not. 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

statute 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

any administration's action, which may be arbitrary, discriminatory or unequal, draws from

Art. 14 and has evolved over time.19 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. 14.20

68. It is humbly submitted before the Hon'ble Supreme Court that Article 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. 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.

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. As Bhagwati, J. has observed: "The law

always frowns on unanalysed and unfettered discretion conferred on any instrumentality of

the State." 22 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. 23 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. The purpose sought to

be achieved here is to save the image of its own government.

2.4.2. Administrative discrimination

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 statute 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. It is humbly submitted before the Hon'ble Supreme Court that discrimination in the actual

use of any discretionary authority is prohibited under Article 14. It prohibits administrative

action that is arbitrary and assures justice and equality of treatment. In the Order imposed by

the Government, the administrator is left with absolute and 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 Article 14.

72. In Shri Meenakshi Mills Ltd., Madurai v. A.V. Visvanatha Sastri25, the Hon'ble Court

held that Art. 14 not only guarantees equal protection as regards to 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

73. It is further submitted that in Bachan Singh v. the State of Punjab, 26 Justice Bhagwati

said that when arbitrariness or unreasonableness is found in a scenario, there is a denial of the

rule of law. Article 14 is essentially a protection against arbitrariness, and it prohibits

governmental activity that suffers from the vice of arbitrariness, whether legislative or

executive. Every action taken by the Government must be reasonable. Otherwise, the Court

would declare it unconstitutional. 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. Power bestowed by DM Act on Central Government and NDMA are extensive. The

Central Government, irrespective of any law in force (including overriding powers) can issue

any directions to any authority anywhere in Rashtra to facilitate or assist in the disaster

management as per the power laid down in the sections including 35, 62 and 72. Importantly,

sections such as 8(2) (b); 24(1); 36; 38(1); 38(2)(b); 39(a); 39(d) substantiates the overriding

powers by stating and verifying that any directions issued by Central Government and

NDMA must necessarily be followed the Union Ministries, State Governments and State

Disaster Management Authorities.

75. The order passed states that any State Government or authority or person intending to

disseminate any information relating to the aforesaid subjects, which is not part of the official

information released/provided/published by the Ministry of Health, Government of Rashtra,

shall be done only after prior written approval of the Designated Officer of the Ministry of
Health, Government of Rashtra whereas As per the act, there is no such provision which says

that apart from government departments, no other citizen is allowed to update or share news

related to a disaster.

76. Any such directions issued by the Central Government and NDMA must necessarily be

followed by the Union Ministries, State Governments and State Disaster Management

Authorities. As per the scheme of the Act, State/UT Governments cannot dilute these

guidelines, they may, however, impose stricter measures than these guidelines as per the

requirement of the local areas.

77. The order for guidelines for the lockdown was issued by the Home Secretary in his

capacity as the chairperson of the NEC, as per section 10 (2)(i) of the DM Act that makes the

MHA as the ministry in charge of the Covid-19 disaster. Yet, as per the Government of

India's Allocation of Business Rules (ABR), 1961 amended up to January 31, 2017, the MHA

is mandated to look after "matters relating to loss of human life and property due to all

natural and man-made calamities other than drought or epidemics"

78. In theory, the DM Act provides for both Centre and states to share power and

responsibilities. “The National Disaster Plan under the DM Act sets the minimum standards

— states, if they so wish, can provide additional relief,” adds Dam. However, the ground

reality as of this pandemic seems different.

Both union and state governments have the responsibility to prevent “the extension from one

State to another of infectious or contagious diseases” [entry 29 of the concurrent list].

79. The DM Act is unambiguous in assigning powers to union and state governments. Section

62 of the DM Act stipulates extraordinary powers to the union government by which any

authority in union ministries, statutory bodies, state governments etc is bound to take

direction from the ministry of home affairs of the government of India. The secretary of this

ministry is ex-officio chairperson of the National Executive Committee under Section 8 of

DM Act. The committee assists the National Authority that is created under Section 3 and

headed by the Prime Minister of India.