1.

THE WRIT PETITION FILED BEFORE THE SUPREME COURT OF RASHTRA IS NOT

MAINTAINABLE

1. It is humbly submitted before the Hon’ble Supreme Court that the present Writ

Petition against the Government of Rashtra [“Govt.”] under Art. 32 of the

Constitution of Rashtra is not maintainable. Firstly, it is humbly submitted before the

Hon’ble court that the jurisdiction under Art. 32 of The Constitution of Rashtra

[“Const.] can be invoked only when Fundamental Rights are violated. It has been held

that if a right, other than a Fundamental Right is claimed to be violated then such

questions can be addressed only in the appropriate proceedings and on an application

under Art. 32.1

2. In the instant case, it is submitted that no Fundamental Rights of the Petitioner have

been violated, therefore, this petition shall not be considered. Further, the instant Writ

Petition is not maintainable on the grounds that firstly [1.1], the nature of the Writ

Petition is not maintainable, secondly [1.2], the Petitioner has no locus standi, thirdly

[1.3], there has been no infringement of fundamental rights, and fourthly [1.4], that

alternative remedies have not been exhausted by the Petitioner.

1.1. Nature of Writ Petition

3. It is humbly submitted before the Hon’ble Supreme Court that the Govt. has abided

by the Order of the Home Ministry of the Union Government of Rashtra. The

restrictions on Fundamental Rights, if any, were done in accordance with the

‘procedure established by law’. The Petitioners have not been able to show any

violation their fundamental rights and a writ petition which fails to show the violation

of fundamental rights cannot be maintained.2

1
Ramjilal v. Income Tax Officer, AIR 1951 SC 97 (India).
2
Bhushan Power & Steel Limited v. Rajesh Verma, (2014) 5 SCC 551 (India).
 4. It is humbly submitted before this Hon’ble Court that considering the fact that the

petitioner, were declined to disseminate inconsistent data related to NOVID- 19

management which could cause widespread panic among the citizens, the petitioner is

acting with mala fide intentions and the prima facie motive behind this petition would

be one of vengeance and not one of actual restoration of justice.

1.2. No Locus Standi

5. It is humbly submitted before the Hon’ble Court that the petitioners in the present

case do not have the locus standi to file the petition. The Counsel for the respondents

would like to humbly submit before the Hon’ble Court that the purpose for which Art.

32 can be invoked is solely for the enforcement of fundamental rights which means

that the violation of a fundamental right is sine qua non for the exercise of rights

conferred under Art. 32.3 It is to be noted that in the instant case there has been no

violation of fundamental rights as is claimed by the petitioners. The respondents have

duly followed all the proper procedures as established by law and have ably

discharged their statutory duties while doing the same.

6. Through the course of time, it has been seen that the judiciary has relaxed the scope of

locus standi in order to ensure that fundamental rights can be enforced as much as

possible4. However, the violation of fundamental rights remains a pre-requisite and

mandatory condition for filing of a writ petition that shall be maintainable and without

it the petitioners won’t have locus standi.

7. The counsel for the respondents maintains that the petitioners do not have the locus

standi to file the present petition because they fail to prove the violation of

3
Federation of Bar Association in Karnataka v. Union of India, AIR 2000 SC 2544
4
Dr. Upendra Baxi v. State of Uttar Pradesh, (1983) 2 SCC 308 (India).
 fundamental rights. Hence, the Writ Petition should be dismissed; it need not be heard

on merits.5

1.3. No Violation of Fundamental Rights

8. It is humbly submitted before the Hon’ble Supreme Court that in the instant Writ

Petition, the petitioner has failed to conclusively prove the violation of fundamental

rights, if any. It is humbly submitted before the Hon’ble Court that Art. 32 of the

Const. can be invoked only when there is an infringement of a fundamental right. The

Supreme Court in the case of Hindi Hitrashak Samiti v. Union of India, 6 has held that

“the jurisdiction conferred on the Supreme Court under Art. 32 is an important and

integral part of the Const. but violation of a fundamental right is the sine qua non for

seeking enforcement of those rights by the Supreme Court.”

9. Similarly, in Shantabai v. State of Maharashtra, 7 it was held that “Art. 32 cannot be

invoked simply to adjudge the validity of any legislative or administrative action

unless it adversely affects the fundamental rights of the Petitioner”. Admittedly, in

D.C. Wadhwa v. State of Bihar,8 and Sarojini Ramaswami v. Union of India,9 the SC

entertained Writ Petitions though no question of Fundamental Right was involved, it

did the same as it held the aforementioned cases as ones of great constitutional

importance; there was no other forum; and there was no other mechanism. 10 It is

therefore humbly submitted before this Hon’ble Supreme Court that the instant case

does not satisfy any of the criteria that the SC laid down while entertaining these Writ

Petitions. It does not pose a question of constitutional importance and it does have

5
Charan Lal Sahu v. Giani Zail Singh, AIR 1984 SC 309 (India).
6
AIR 1990 SC 851 (India).
7
AIR 1958 SC 532 (India)
8
AIR 1987 SC 579 (India).
9
AIR 1992 SC 2219 (India)
10
MP JAIN, INDIAN CONSTITUIONAL LAW 1355 (7th ed. 2016).
 other forums and mechanisms for its resolution. The Respondents humbly submit that

there has been no violation of Art 19, Art. 14 and Art. 21.

1.4. Alternative Remedies have not been exhausted

10. It is humbly submitted before the Hon’ble Court that there are alternative remedies

available to the petitioner and as a result of which this petition is not maintainable. 11

Filing a writ petition where there is an alternative remedy available is an abuse of the

procedure laid down by the law and wastage of the time of the Hon’ble Apex Court.

The Supreme Court in the case of Lokesh Katara v. High Court of Gujarat, 12 refused

to entertain a writ petition filed under Art. 32 stating that the petitioners in the case

had a remedy available of moving the High Court under Art. 226, leaving it open to

the petitioners to institute the appropriate proceedings as they may be advised.

11. It is humbly submitted before the Hon’ble Apex Court that Art. 226 can be invoked

not only for the enforcement of Fundamental Rights but for ‘any other purpose’ as

well.13 While the Supreme Court’s power under Art. 32 is restricted, the High Court’s

power is much more expansive.

12. Furthermore, in Kanubhai,14 this Court held that a petitioner complaining of

infraction of his Fundamental Right should approach the High Court first rather than

the Supreme Court in the first instance. The reason given for this view was that there

was a huge backlog of cases pending before the Supreme Court.

13. The court is bound to take cognizance of the petition if his fundamental rights have

been infringed, but only after he has exhausted all existing remedies provided by law

and has not obtained any proper redress. But in this case the petitioner has not
11
Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192 (India).
12
(2017) 2 SCC 427 (India).
13
MP JAIN, INDIAN CONSTITUTIONAL LAW 1355 (7th ed. 2016).
14
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159 (India).
 exhausted his means of legal aid and same for redress of his disputes, directly to

Supreme Court.

14. It is humbly submitted before the Hon’ble Supreme Court that the Petitioner can seek

remedy under Art. 226 of the Constitution of Rashtra by approaching the concerned

High Court in a similar way. A letter addressed to the High Court Chief Justice could

also result in the invoking of its epistolary jurisdiction. In the foregoing arguments it

has already been discussed that the High Court provides an equally efficacious

remedy to the petitioner. The Petitioner fails to prove that the SC is the only remedy

available to him and thus this Petition should be dismissed.15

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

provisions of the Constitution of Rashtra

Space for Summary

The order is in consonance with Article 19 of the Constitution of Rashtra

2.1. The Order is in consonance with Article 19 of the Constitution of Rashtra

15. The Order sought by the Govt. to prohibit the state governments, authorities and

person on publication of the news regarding NOVID- 19 is valid as per the provisions

15
Himmatlal v. State of Madhya Pradesh, AIR 1954 SC 403 (India)
 of the Const. and ICCPR. The prevailing conditions at the time when the order was

passed by the Govt. were that of a global pandemic caused by a deadly virus known

as NOVID-19. The world being hit by the virus sometime around the end of 2019,

and the virus eventually entering the borders of Rashtra around the end of January

2020, steps had to be taken by the Government of Rashtra for the proper prevention

and management of the virus, all while keeping in mind public interest and public

order.

16. The Order satisfies the three-part test prescribed under Art. 19(2) of the Const. and

19(3) of the ICCPR.

2.1.1. The restrictions satisfy the three-part test prescribed under Art. 19(2) of the

Const. and 19(3) of ICCPR.

17. State Parties must guarantee the right to freedom of expression, including the right to

seek, receive and impart information and ideas of all kinds. However, these rights are

not absolute in nature and are subject to certain restrictions under the ICCPR and the

UDHR.16 Moreover, in Dharam Dutt v. UOI,17 the Hon’ble Court laid down test to

assess the validity of restrictions imposed on freedom of speech and expression.18 This

test has been widely accepted and used in multiple judgments across jurisdictions.19

2.1.1.1. The restrictions are provided by the law.

16
Toby Mendel, Restricting Freedom of Expression: Standards and Principles, Centre for Law and Democracy
(Aug. 18, 2021, 10: 03 PM), http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-
Restrictions-onFOE.pdf
17
Dharam Dutt v. UOI
18
Commission Regulation 2016/679, General Data Protection Regulation, art. 17(1)(c), 2016 O.J. (L 119);
Gaweda v. Poland, App. No. 26229/95 Eur. Ct. H.R. ¶ 39 (2002); Feldek v. Slovakia, App. No. 29032/95 Eur.
Ct. H.R. (2001); Lohe Issa Konate v. Burkina Faso, App. No. 004/2013 Afr. Ct. H.P.R. ¶ 125 (Dec. 5, 2014).
19
Sunday Times v. United Kingdom, App No. 6538/74 30 Eur. Ct. H. R. (1979) [hereinafter Sunday Times];
Lingens v. Austria, App. No. 9815/82 Eur. Ct. H.R. ¶¶ 39-40 (1986); Thorgeirson v. Iceland, App. No.
13778/88 Eur. Ct. H.R. ¶ 63, (1992).
 18. The first limb of the test requires that the restriction must be provided for by law. A

norm is ‘prescribed by law’ if it is formulated with sufficient precision so as to enable

citizens to reasonably foresee the consequences which a given action may entail. 20

The term ‘law’ must be flexibly interpreted to encompasses administrative, 21 civil and

criminal laws, as well as a Const. 22 It is also clear that in common law systems, legal

norms developed through the case law meet the requisite standard. 23 The restrictions

imposed by the Order are in accordance with Art. 19 of the Const.

19. Accordingly, the provisions of Art. 19 provide for reasonable restrictions of public

order, morality, national security, defamation and incitement to an offence on the

exercise of freedom of expression. The information published by the media

organizations regarding NOVID- 19 qualified not just as divergent and inconsistent

with government’s data but also, was on the stage to create a widespread panic among

the citizens of Rashtra. Therefore, the restrictions sought by the govt are justified

under Art. 19 of the Const. for the maintenance of public order and public health in

the region.

2.1.1.2. The restrictions are in pursuance of serving a legitimate aim

20. The second part of the test requires that the restrictions must be for the protection of

legitimate and overriding interests of respect for the rights and reputations of others,

protection of national security, public order, public health or morals. This list of

interests is exclusive in terms of a restriction on freedom of expression. 24 Both

20
Sunday Times, Id. at ¶ 49; Kokkinakis v. Greece, App. No. 14307/88 Eur. Ct. H.R. (1993); 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 (India).
21
Gooding v. Wilson, 405 U.S. 518 (1972), p. 522.
22
Refah Partisi (The Welfare Party) and others v. Turkey, App Nos. 41340/98, 41342/98, 41343/98 and
41344/98 Eur. Ct. H.R. ¶ 58 (2003).
23
Observer and Guardian v. United Kingdom, App. No. 13585/88 Eur. Ct. H.R. ¶ 50-53(1991).
24
Mukong v. Cameroon, Comm. No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (Aug. 10, 1994).
 purpose and effect of restrictions are relevant in assessing the legitimacy of the aim to

be pursued by the restrictions.25  It is settled law that the anticipated danger should not

be remote, conjectural or far-fetched. It should have a direct nexus with expression. It

should be intrinsically dangerous to the public interest. So is the situation in the case

under consideration. The “community interest” here being the safeguarding of public

health, and securing each individual’s right to live a healthy and illness- free life as

enshrined in Art. 21 of the Constitution of Rashtra. Moreover, being declared as a

global pandemic by the World Health Organisation, endangering human life, it would

be erroneous to say that the anticipated danger is remote, conjectural or far- fetched,

and that the measures taken by the Government of Rashtra do not have a direct and

proximate nexus or a reasonable connection between the restriction imposed and the

object sought to be achieved.

21. In the case at hand, The restriction imposed is neither arbitrary and of an excessive

nature nor does it blindly follow an abstract standard/ general pattern of

reasonableness, instead lays down regulatory measures rather than restrictive ones in a

dynamic, pragmatic and elastic fashion to preserve public health and order, while

trying to minimize and mitigate divergent and inconsistent statistics and information

as much as possible as they lead to widespread panic amongst people including the

medical fraternity and was derailing the efficient management of the NOVID- 19

disaster. Therefore, restrictions imposed were valid as they serve a legitimate aim of

protecting the public health and public order of the citizens of Rashtra.

2.1.1.3. The restrictions are necessary for a democratic society

25
R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295 (Can.)
 22. The necessity element of the test presents a high standard to be overcome by the State

seeking to justify the interference.26 For a norm to be ‘necessary in a democratic

society’, it must correspond to a pressing social need. 27 The restrictions imposed must

be proportionate to the legitimate aims being pursued.28 The proportionality is

assessed on the grounds of the negative impact caused by the limiting measure upon

the enjoyment of the right and the ameliorating effects of the limiting measure.29

23. The right to freedom of speech and expression includes the right to seek and receive

information.30 But this right is subject to limitations under international law. While the

publication of true and impartial news is an established duty of journalists, govts have

the right to restrict information when it is provided by law and the disclosure threatens

to cause substantial harm or the harm to the public is greater than the public interest in

having the information.31 The restrictions should be limited to matters including law

enforcement, national security, public or individual safety, and the effectiveness and

integrity of govt decision-making processes.32

24. The reports published by various media organizations lacks evidence and proof for its

authenticity. The circulation of inconsistent news would further aggravate the already

tense atmosphere in Rashtra. These being the circumstances, there is a substantial

26
Supra note 16.
27
Sunday Times, supra note 4, ¶ 62; Klass v. Germany, App. 5029/71 Eur. Ct. H.R. ¶ 59 (1978); Handyside,
supra note 1; Merits, Reparations and Costs, Palamara Iribarne v. Chile, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 135, ¶ 126 (Nov. 22, 2005); Preliminary Objections, Merits, Reparations and Costs, Uson Ramirez v.
Venezuela, Judgment, (ser. C) No. 207, ¶ 55 (Nov. 20, 2009); Waldock, H, The Effectiveness of the System set
up by the European Convention on Human Rights, (1980) 1 HRLJ 1, p. 9; Virginia v. Black, 538 U.S. 343
(2003); Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 620 (India).
28
Velichkin v. Belarus, Comm. No. 1022/2001, U.N. Doc. CCPR/C/85/D/1022/2001 (Nov. 3, 2005) [hereinafter
Velichkin].
29
Burgess v. Australia, Comm. No. 1012/2001, U.N. Doc. CCPR/C/85/D/1012/2001 (Oct. 21, 2005).
30
Martin v. Struthers, 319 U.S. 141, ¶ 65 (1943); Tinker v. Des Moines School District, 393 U.S. 503, ¶45
(1969); Lovell v. City of Griffin, 303 U.S. 444, ¶ 56 (1938); European Convention on Human Rights art. 10,
Nov. 4, 1950, 213 U.N.T.S. 22; International Covenant on Civil and Political Rights art. 19, Dec. 16, 1966, 999
U.N.T.S. 171.
31
Art. 19, The public's right to know principles on freedom of information legislation, (1999), available at https:
//www.art19.org/data/files/pdfs/standards/righttoknow.pdf.
32
Id.
 need to prevent the circulation of inconsistent news as it could incite widespread

panic which violates the Art. 20(2) of ICCPR.

2.1.2. The order passed by the Government of Rashtra is in consonance with the

Right to acquire information and disseminate the same.

3. The freedom of speech and expression, as enshrined in Art. 19 of the Const. is the

matrix, the indispensable condition of nearly every other form of freedom, and is the

wellspring of civilization, without which personal liberty and liberty of thought would

shrivel. This freedom, under its purview, ensures a citizen, the right to know, and the

right to acquire information and disseminate the same. However, as stated in

Thalappalam Ser Cooperative Bank Limited v. State of Kerala, 33 this right, just like

any other, is not absolute and is restricted by reasonable restrictions.

25. According to the case of People’s Union for Civil Liberties (PUCL) v. Pukhrem

Sharatchandra Singh,34 the right to receive information does not carry with it an

unrestricted right to gather information. A reasonable restriction on the exercise of the

right to know or right to information is always permissible in the interest of the

security of the State. Generally, the exemptions/exceptions under the laws referred to

in Art. 19(2) entitled the Government to withhold information relating to national

security (including defence) and public safety among the plethora of other exemptions

available to them.

26. For instance, a country such as the Rashtra with a huge population base, which was

quite harshly hit by the global pandemic, encountered major issues which were

exacerbated by the spread of misinformation and fake news. These posed as primary

hindrances in the effective management and prevention of the spread of the deadly

virus. In order to prevent any such hurdles in the preservation of public order and

33
34
 public health, the Government of Rashtra quite timely and effectively imposed

reasonable restrictions along with proper procedural safeguards on the publishing of

statistics and information.

27. Moreover, as stated by the Supreme Court in Romesh Thapar v. UOI,35 ‘public order’

is an expression of wide connotation and signifies “that state of tranquillity which

prevails among the members of political society as a result of internal regulations

enforced by the Government which they have established.” The measures passed by

the Government in the case at hand aim to exactly do so through its intricately laid

down procedure, hence not only does it pass the test of reasonableness, but it also

meets the substantive and procedural standpoints.

28. In Inter Media Publishing Ltd., Calicut v. State of Kerala & others, 36 there was a

denial for Government advertisement to a newspaper on the ground that dissemination

of information through said newspaper poses threat to national security, unity,

integrity and public order. The Court held that in the absence of a const. of any

mechanism by way of formation of a committee to assess and evaluate information

and ideas provided in newspapers, the decision taken to deny Government

advertisement is unjustifiable. The Court directed the Government to constitute a

committee to evaluate and assess information provided in newspapers. Similarly, in

the case at hand, a special mechanism and an elaborate procedure which lays down

that the Ministry of Health, Government of Rashtra, within the time frame of a week

from the date of issuance of orders must nominate and designate an Officer, not below

the level of Joint Secretary, as the Designated Officer for the purposes of Clause 3

Upon receipt of a request for prior written permission under Clause 3, the Designated

35
36
 Officer shall evaluate the request within three days and either grant or refuse it for

reasons to be set forth in writing.

2.1.3. The order passed by the Government of Rashtra does not interfere with the

Freedom of Press.

29. The Supreme Court has emphasised that 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. Therefore, the Govt. is

quite correct in terms of the measures taken by them. This is because allowing

inconsistent and divergent statistics and information would rather act in contrary to

the preservation of public order and public health as well as the effective and efficient

management prevention of the pandemic. This is quite evident from Para 6 of the

Moot Proposition which states that such data led to widespread panic among the

public including the medical fraternity. Hence, it can be said that this aforementioned

benefit of the public which flows from the freedom of press is being curtailed in the

current situation.

30. According to the cases of Bennett Coleman v. UOI37 and Babulal v. State of

Maharashtra,38 a provision for pre-censorship for a limited period in emergent

circumstances and subject to procedural safeguards is valid. If, however, it is left to

the absolute discretion of the executive authority, it must be held to be unreasonable.

Being declared as a global pandemic by the WHO, it was humanly impossible to

foresee the inception and the end of it, hence justifying the absence of a limited period

for the pre-censorship/ sun-set clause. Moreover, as mentioned in the above

arguments and the annexure released by the Govt., a detailed and comprehensive

37
38
 procedure has already been established which would ensure the upholding of Art. 19

of the Const. while also keeping in mind the tenets of non-arbitrariness, justice, equity

and good conscience.

2.2. The Order is in consonance with Article 21 of the Constitution of Rashtra

31. It is most humbly submitted that the significance and sweep of Article 21 make the

deprivation of liberty a matter of grave concern and permissible only when the law

authorising it is reasonable, even-handed and geared to the goals of community good

and State necessity.39 Before a person is deprived of his life and personal liberty, the

procedure established by law must be strictly followed, and must not be departed from

to the disadvantage of the person affected.40 Liberty of a person should not ordinarily

be interfered with unless there exist cogent grounds.4145 Therefore, the Order must be

interpreted keeping in view the aforementioned salutary principles.

32. Reasonableness postulates intelligent care and predicates that deprivation of freedom

by refusal of publication of inconsistent information related to NOVID – 19 is not a

punitive purpose but for the bifocal interests of justice to the individual involved and

society affected.42 The UK Supreme Court has held that ‘there is a need to maintain a

fair balance between the general interest of the community and the personal right of

the individual.’47 All deprivation of liberty is validated by social defence.43

33. It is humbly submitted before this Hon’ble Court that the liberty of an individual is

precious but cannot be absolute in every situation.44 Liberty is to be secured through

process of law, which is administered keeping in mind the collective interest of the

39
Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240.
40
Bashira v. State of Uttar Pradesh, AIR 1968 SC 1313; Narendra Purshotam Umrao v. B.B. Gujral, AIR 1979
SC 420.
41
Narendra Singh v. State of M.P., 2004 Cri LJ 2842
42
Babu Singh v. State of U.P., (1978) 1 SCC 579.
43
Supra note 39.
44
Subhash Kashinath Mahajan v. The State of Maharashtra, (2018) 4 SCALE 661.
 community.45 It is possible that in a given situation, the collective interest of the

community may outweigh the right of personal liberty of the individual concerned.46

34. It is humbly submitted before the Hon'ble Supreme Court that in Kartar Singh v. the

State of Punjab,47 this 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.48 Art. 21 envisages a fair procedure.49 The liberty of a person should not

ordinarily be interfered with unless there exist cogent grounds, therefore.50

35. It is thus most humbly submitted before the Hon'ble Supreme Court that in the instant

case, the State does not violate the fundamental rights of the people of Rashtra by

putting certain restrictions on the dissemination of information related to NOVID- 19.

In the landmark case of Indrajit Barua v. State of Assam, 51 when the ADAA, 1955

(Assam Act) and the AFSPA, 1958 (Central Act) were challenged because they

condoned abuse of State powers, the Delhi High Court while upholding both the Acts

also held, that what is just fair and reasonable procedure established by reasonable

law as opposed to the procedure which can be called arbitrary or discriminatory is a

question to be answered in the facts and circumstances of the case.

36. Moreover, a law is regarded as wholesome and beneficial if it ensures the liberty of a

more significant number of the members of the society at the cost of a few. 52 If, to

save a large number of lives from the attack of NOVID- 19, certain restrictions are

45
Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684.
46
Masroor v. State of U.P., (2009) 14 SCC 286.
47
(1994) 3 SCC 569 (India).
48
MP JAIN, INDIAN CONSTITUIONAL LAW 1128 (7th ed. 2016).
49
Ranjitsingh Brahmajeetsing Sharma v. the State of Maharashtra, (2005) 5 SCC 294 (India)
50
Id.
51
AIR 1983 Del 513 (India).
52
Id.
 imposed on the dissemination of information to prevent widespread panic, then it is

reasonable in nature.

37. It is humbly submitted before the Hon'ble Supreme Court that it is the duty of the

State to preserve law and order.53 The term ‘public order’ and ‘public health’ are not

vague.54 It is the State's duty to see that the rule of law enunciated by Art. 21 is

available to the most significant number. In the instant case, since the State has

constitutional duties to uphold the multitude of rights of its citizens, maintain public

law and order, and work in the greater social interest, the procedure established by

law in the instant case is just, fair and fair reasonable under Art. 21 of the Constitution

of Rashtra.

2.3. The order passed by the Government of Rashtra is well within the ambit of the

principle of Federalism.

38. As a component of the Federal Structure of the Const., legislative powers have been

divided between the Parliament and State Legislatures. 55 The competing legislatures

may not infringe upon the each other’s legislative domain;56 though Parliament is

legislatively supreme to the State Legislatures. 57 The constitutional vires of the Order

was challenged on the grounds of legislative competence. 58 It is submitted that the

said provisions are not ultra vires the Constitution since: [2.3.1.] the ‘pith and

substance’ of the Order lies outside the legislative domain of the State Legislatures

and; [2.3.2] Residuary Powers with respect to legislative competence is vested with

the Parliament.

53
Indrajit Barua v. Assam, AIR 1983 Del 513 (India)
54
MP JAIN, INDIAN CONSTITUIONAL LAW 1130 (7th ed. 2016).
55
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.
56
State of Kerala and Ors. v. Mar Appraem Kuri Company Ltd. and Anr., AIR 2012 SC 2375, ¶12.
57
GRANVILLE AUSTIN, THE INDIAN CONSTITUTION – CORNERSTONE OF A NATION, 2nd ed. 1999, p. 195.
58
Factsheet, ¶ 10.
 2.3.1. The Order falls outside the legislative competence of the states

39. 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.59 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.60 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.61 The relevant factors which must be considered in order 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.62 The object and purpose of the impugned section does

not relate to subject-matters enumerated in List II of the Seventh Schedule

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

which relevant subject-matters fall under the exclusive competence of the States. 63

The two entries in the State List that are remotely related to the subject of disaster

management are entry 14, which deals with agriculture, including protection against

pests and plant diseases, and entry 17 which deals with water, including water supply,

drainage and embankments. However, the legislation on disaster management has

been related to entry 23 (social security and social insurance) in the Concurrent list of

the Constitution and the States would also be able to make their own legislation on the

subject.

59
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.
60
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.
61
State of Maharashtra v. Bharat Shanti Lal Shah and Ors., (2008) 13 SCC 5 at ¶ 30.
62
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.
63
M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th ed. 2010, p. 533.
 41. Due to divergent and inconsistent statistics related to NOVID- 19 there was a threat

perception for the widespread panic among citizens and for that purpose the Central

government put certain restrictions to prevent this. In light of the above, it is

submitted that the primary objective of impugned Order is to prevent the widespread

panic across Rashtra which would address a number of socio-economic problems

plaguing the country.

2.3.1.1. The scope of the impugned section relates to subjects outside the

legislative competence of the State Legislatures

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

to determine its scope.64 The scope of a parliamentary statute must not fall within the

ambit of legislative fields enumerated in List II.65

43. It is humbly submitted before the Hon'ble Supreme Court that according to Art.

254(1) if any provision of state law is repugnant to a provision in a law made by the

Parliament which it is competent to enact, or to any existing law concerning one of

the matters in the Concurrent List, the Parliamentary law or the existing law prevails

over the State law. It does not matter whether the Parliamentary law has been enacted

before or after the law. It is contended that the Parliament is empowered to make laws

on the subject under List 23 of the Concurrent List. Thereby, it is submitted that the

scope of the said provision lies outside the legislative ambit of State Legislatures.

2.3.1.2. The Effect of the impugned section relates to matter outside the legislative

competence of the State Legislatures

44. 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 Concurrent List

64
Orissa Cement Ltd. (M/s) v. State of Orissa, AIR 1991 SC 1676 at ¶ 37.
65
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431 at ¶ 25.
 which is Social Security. It is therefore submitted that the ‘pith and substance’ of the

impugned section lies outside the legislative domain of the State Legislatures.

2.3.2. The Residuary Powers with respect to legislative competence is vested with the

Parliament

45. Entry 97 of List I read with Article 246 and 248 of the Constitution provide for the

scope of Residuary Powers.66 In case a subject-matter cannot be comprehended within

the auspices of any Entry within the three Lists, the power to legislate with regard to

such subject-matter vests with the Parliament. 67 In the event that legislative

incompetence of the State Legislatures with regard to a subject-matter has been

established, the Parliament may claim exclusive competence. 68 It is not permissible to

interpret Entries under List II too broadly in order to uphold the legislative

competence of the State, the necessary competence must then vest with the

Parliament.69 Thus, in light of Contention, it is established that the State Legislatures

are incompetent to pass legislation with respect to the subject-matter of the Disaster

Management. Thereby, it is humbly submitted that the said order is intra vires the

Const. and that Parliament has not encroached upon the constitutional powers of the

States.

2.4. Section 6 of the Disaster Management Act, 2005 is constitutional in nature.

46. It was held by the Hon’ble Court in Bachan Singh v. the State of Punjab, 70 that the

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

66
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. 8985.
67
Second G.T.O. v. Nazareth, AIR 1971 SC 999 at ¶ 10; Mittal v. Union of India, AIR 1983 SC 1 at ¶¶ 70-72.
68
International Tourist Corpn. v. State of Haryana, AIR 1981 SC 774, ¶ 7.
69
State of West Bengal v. Kesoram Industries, (2004) 10 SCC 201, ¶ 251.
70
AIR 1980 SC 898 (India).
 Broad and absolute discretionary powers are given to administrative authorities are an

antithesis of the spirit of Art. 14. It is most humbly submitted before this Hon'ble

Supreme Court that the Section 6 of the Disaster Management Act, 2005 [“Act”] is

constitutionally valid for three reasons. Firstly [2.4.1], there is no conferring of

unguided and unrestricted power or discretion on an authority, secondly [2.4.2], there

is no administrative discrimination under the impugned Act, thirdly [2.4.3], there is no

arbitrary state action.

2.4.1. No conferring of absolute discretion

47. It is humbly submitted before the Hon'ble Supreme Court that the impugned Section

does not confer absolute or unguided discretionary powers on the administrative

authorities. Thus, it does not attract Art. 14. In the impugned Act, the State has

elaborated on the restrictions to be placed on the dissemination of information related

to NOVID- 19 and these restrictions are not absolute in nature.

48. Regarding laying down principles or guiding norms, it has been held, for instance,

that it is not essential that the same section in the Statute which confers the power

should also lay down the rules of guidance or the policy for the administrator to

follow. If the same can be gathered from the preamble or the extended title of the

Statute and the other provisions therein, the discretion would not be regarded as

uncontrolled or unguided, and the Statute in question will not be invalid. 71 At times,

even vague policy statements to guide administrative discretion have been held by this

Court as complying with Art. 14.72 The State has mentioned the object sought to be

achieved by the Order in ¶6, that the restrictions will be imposed only on those

71
MP JAIN, INDIAN CONSTITUIONAL LAW 913 (7th ed. 2016).
72
Chandrakant Saha v. Union of India, AIR 1979 SC 314; Organo Chemical Industries v. Union of India, AIR
1979 SC 1803; New India Industrial Corp. Ltd. v. Union of India, AIR 1980 Del 277; R.R. Verma v. Union of
India, AIR 1980 SC 1461 (India).
 information which are inconsistent with the official statistics to avoid widespread

panic. In furtherance of same, the State has further defined the procedure which will

be followed while allowing or rejecting the publication of that particular news. The

policy mentioned is not vague and cannot qualify as conferring of absolute discretion.

49. Furthermore, this Court has shown a good deal of tolerance and deference towards

conferment of discretion in the past. Several cases in which the conferment of broad

discretion has been upheld on grounds such as the statutory provision conferring

power have sufficient guidelines, principles, or policies to regulate the exercise of

power.73 In the instant case, while broad discretionary power may have been

conferred, it is subjected to enough guidelines and is in no way absolute.

2.4.2. No administrative discrimination

50. It is humbly submitted before the Apex Court that the Regulation itself does not suffer

from any such vice. However, the administrative authority may implement it in a

discriminatory manner or may not follow the policy or principle laid down in the Act

to regulate the discretion it does not satisfy Art. 14. In the instant case, there has been

no "arbitrary application of the laws." there has been a precise classification, i.e., what

news are allowed and what are not.

51. Moreover, it was held in Pannalal Binjraj v. Union of India 74 that the administration

would have a good defence if it can prove bona fides. The object sought to be

achieved by the impugned order is a noble one, i.e., to prevent the spread of NOVID-

19 in the State of Rashtra, and prevent widespread panic.

2.4.3. No arbitrary state actions

73
Sukhwinder Pal Bipan Kumar v. the State of Punjab, AIR 1982 SC 65 (India); Shiv Dutt Rai Fateh Chand v.
Union of India, AIR 1984 SC 1194, 1212 (India).
74
AIR 1957 SC 397 (India).
 52. This Hon'ble Court has held that arbitrary state action infringes Art. 14. 75 If a law is

arbitrary or irrational, it will fall foul of Art. 14. This Court also held in Style 76 and

Dolly Chanda77 among others, state actions should be guided by reason and not

humour, whim, the caprice of personal predilections of the person entrusted with the

task on behalf of the State, and exercise of all powers must be for public good instead

of being an abuse of power. In the instant case, it is submitted that the State is guided

by both public good and reason. The validity of the legislation draws from the fact

that it was forwarded in accordance with citizens' public interests and rights. It is not

arbitrary but rather just, fair, and reasonable. It provides a reasonable classification

and procedure, which is. In light of the spread of NOVID- 19, which can lead to

widespread panic across the nation and take away the many fundamental rights of the

Rashtra citizens enshrined under Part III of our Constitution, this Regulation is in

furtherance of public good and interest.

53. Lastly, the mere fact that some hardship or injustice is caused to someone is no

ground to strike down the rule altogether if otherwise, the rule appears to be just, fair

and reasonable, and not unconstitutional.78

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

provisions of the Disaster Management Act, 2005 itself.

54. 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

75
A.P. Aggarwal v. Govt. of NCT of Delhi, AIR 2000 SC 205 (India).
76
(Dress Land), (Style (Dress Land) v. Union Territory, Chandigarh (1999) 7 SCC 89, 100 (India)).
77
Dolly Chanda v. Chairman, Jee, (2005) 9 SCC 779 (India).
78
A.P. Coop. Oil Seeds Growers Federation Ltd. v. D. Achyuta Rao, (2007) 13 SCC 320 (India).
 response to disaster without prejudice to generality of the provisions of sub-

section (1), which authorises the government to lay down the policies, plans

and guidelines for disaster management which incorporates the issuing of the

above mentioned order because the spread of inconsistent and

misinformation could be a reason for widespread panic and alleviating the

situation thus helps in mitigation of the disaster situation. In the instant case,

clause 1(A) of the order is thus within its authority to give orders to regulate

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

persons recovered and deaths from NOVID-19.

55. 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 regulation of

information  availability of the subjects such as medical oxygen and drugs,

health infrastructure for treatment, etc, mentioned in the order because this

could help in mitigating the disaster as the availability of resources depends

on such data and inconsistency with respect to the same could disturb the

distribution of the resources and necessary equipments within the country.

The NDMA in the instant case through clause 1(B) of the order has done the

same being in the purview of the section 6(2)(a) of the act.

56. 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 which includes the regulation of

information pertaining to important subjects, the inconsistency, and related

 misinformation could hamper the effective containment of the NOVID-19

pandemic and thus the order is within the scope of the section 6(2)(i).

57. It is humbly submitted before the Hon’ble court that Clause 2 of the order is

not ultra vires with respect to the section 22(2)(n) as the clause provides

central government the power to disseminate information but does not restrict

the state government to disseminate information and the state could do the

same after going through the official channel so that the information could be

verified and the panic which was widespread due to the inconsistent and

divergent information could be restricted and the State Executive Committee

still has 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. 

58. It is submitted that the order issued authorises the Central government with

the responsibility to disseminate information and the official information

could be put forth as per clause 2 of the order but 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, any verified information could be

disseminated. The aforementioned clauses are not 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 as the state still have right to disseminate

information.

59. This Order includes that all forms of media, including social media are

covered by the order as per clause 4 which is in accordance with section 67

of the DMA which mentions about the directions which are given to media

for communication of warnings, etc, which include the Government to give

direction to any authority or person in control of any audio or audio-visual

media or such other means of communication as may be available to carry

any warning or advisories regarding any threatening disaster situation or

disaster. Thus, the clause is intra vires with respect to the provision of the act.

60. It is most humbly submitted before the Hon’ble court that clause 4 which

talks about the appointment of an Officer for approving the dissemination of

information is well within the ambit of section 69 of the DMA, and thus intra

vires as the said section implies that the National Executive Committee by

general or special order in writing, may delegate to the Chairperson or any

other member or to any officer, subject to such conditions and limitations

specified in the order, such of its powers and functions under this Act as it

may deem necessary.