Counsel seeks permission to initiate the proceedings

Greetings to the bench, May it please the court. This is the counsel appearing on behalf of the
respondent in the case of X v. UOI

the Counsel will be addressing the maintainability issue and the constitutionality of the Order.

Your lordship 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. The hon’ble court in the case of Shantabai v. State of Maharashtra 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”

 In the present case, there has not been any infringement of fundamental right by the actions
of the government. The Order dated 1st June 2021 is based on reasonable restrictions as
prescribed in Article 19(2) of the Constitution. Therefore, there is no violation of
fundamental rights viz. Art 14, 21 and the principle of federalism. When there is no violation
of fundamental rights, the petitioners cannot approach the SC under Art 32.

The power to grant writs under Article 32 is a discretionary power vested in the hands on this

Hon'ble Court.10(K.D. Sharma v. SAIL, (2008) 12 SCC 481) It is a well settled proposition of

law that existence of an alternative adequate remedy is a factor taken into consideration in a

writ petition(Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163.). The same

has been upheld in a plethora of judgments rendered by this Hon'ble Court. In the instant
case, the Petitioner has approached the Honorable Apex Court directly under an Article 32
petition in spite of having an alternative remedy available in Article 226 of the Constitution.

It was held by the Hon'ble Court in the case of Confederation of All Nagaland State Services
Employees' Assn. v. State of Nagaland,12 that the writ petitions should be agitated at the first
instance before the High Court of Judicature exercise of its power under Article 226 of the
Constitution. In the instant case, the petitioners have directly approached the Supreme
Court,13 whereas the petitioner should have moved to the High Court under Article 226. This
Hon'ble Court, must therefore, exercise its discretion to quash the instant writ on grounds of
non-maintainability.
If Your Honours don’t have any question in this regard then I would seek permission to move
to the second part of my argument i.e., THE ORDER IS INTRA VIRES THE
CONSTITUTION OF RASHTRA.

Coming to the second issue i.e., THE ORDER IS INTRA VIRES THE CONSTITUTION OF
RASHTRA. there are 4 grounds why we contend that this court should declare that the Order
was in violation with the provisions of the Constitution of Rashtra.

 First, under Article 19 of the Constitution, your lordship, the restrictions are
reasonable in nature.

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

 Third, your lordship, the order is not violative of the principle of federalism.

 Fourth, your lordship, Section 6 of the Disaster Management Act 2005 does not
contravenes the provision of Article 14 of the Constitution.

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

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

The prevailing conditions at the time when the order was passed by the Government of
Rashtra 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.

The first claim for this ground being that the restrictions which were imposed by under the
authority of law.  The respondent adhered to the correct protocol and relying on the reports
which showed that there was inconsistent and divergent statistics related to NOVID- 19. This
proves that there was in fact urgent need to regulate this and they were not imposed willy-
nilly. The Respondent had analysed the societal as well as the social conditions prevailing.

The second claim is that the restrictions which were imposed were not arbitrary or of an
excessive nature. The approach which was used by the respondent was dynamic, pragmatic
and elastic in nature. The regulation which they imposed was laid down keeping in mind the
requirement of felt need of the society and the object which was sought to be achieved which
was to stop the further spread of the highly contagious virus. According to Papanasam
Labour Union v. Madura Coats Limited, the regulations comply with all the principles and
guidelines which should be kept in view while considering the constitutionality of a statutory
provision imposing restriction on a Fundamental Right guaranteed by Article 19(1)(a) to (g)
when challenged on the ground of unreasonableness, arbitrariness, and excessiveness of the
restriction imposed by it. A direct and proximate nexus between the two are quite evident in
the instant case. Instead of despotic or restrictive laws, reasonable and regulatory laws which
satisfy the need of the prevailing social values were passed in order to protect social welfare.
The government assigned a secretary level officer to analyse whether the news is true or not
and thereafter allow only that news which are true.  

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 Article 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. 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, it is contended that the order is in accordance with the felt need of the society and
the complex issues facing the people.

The freedom of speech and expression, as enshrined in Article 19 of the Constitution of

Rashtra, 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, this right, just like any other, is not absolute
and is restricted by reasonable restrictions.

‘Public order’ is an expression of wide connotation and signifies “that state of tranquility
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.
In Inter Media Publishing Ltd., Calicut v. State of Kerala & others, 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 constitution 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 Officer
shall evaluate the request within three days and either grant or refuse it for reasons to be set
forth in writing.
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 Government of Rashtra 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. 

Any restriction on freedom of expression must be “necessary in a democratic

society”.59 Under the Court's case law, the adjective “necessary” implies “a pressing social
need”.60 In Prager and Oberschlick judgment61 the court observed that despite the pre-
eminent role of the media in a state governed by the rule of law, it must stay within certain
limits. The inconsistent and divergent statistics related to NOVID-19 was lacking good faith
and not within the rules of journalistic ethics. In the present case, the nature of the news
disseminated is such that it can create widespread panic. The right to freedom of expression is
not unfettered and is subject to restrictions. Hence, the interference, namely the conviction of
the journalist, is necessary for a democratic society.

 the respondent contends that the order was in accordance with article 21 of the constitution
of Rashtra. The first ground being that the procedure established by law was reasonable. all
the proper prerequisites which were required to be agreed upon were kept in mind before the
imposition of the Order.   The respondent relied on the reports which showed that their
instances of divergent and inconsistent statistics. that respondent performs on its due
diligence which it ought to you before the formulation and promulgation of such laws. 

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.46 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

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.

This brings me to the second claim of this ground which is that the procedure established by
law was fair. First of all, the Order passed by the respondent poses regulatory restrictions
instead of restrictive ones.  This is quite evident from the appointment of Secretary for
verifying the data. Just because the harsh imposition of the law affected the few people in the
society, the law cannot be termed as unreasonable in nature. Going by the judgement
pronounced in the case of Inderjeet Barua versus state of Assam, a law is regarded as
Wholesome and beneficial if it ensures the liberty of a most significant number of members
of the society at the cost of a few. Moreover, a regulation being brought into action to
preserve law and order and to further public interest in a manner which is prescribed to both
the rightful procedural as well as substantive aspects can be Deemed to be reasonable in
nature. 

If, to save a large number of lives from the attack of NOVID- 19, certain restrictions are
imposed on the dissemination of information to prevent widespread panic, then it is
reasonable in nature

If your honor does not have any question regarding the first ground of my arguments
advanced, I seek the permission to move on to the second segment.

Now, moving on to the second ground, which is that THE IMPUGNED ACT IS NOT AN
UNREASONABLE LAW UNDER ARTICLE 14.
Non arbitrariness is a very significant aspect of article 14 of the constitution of Shikharabad. 
The text of the article is both logical and intuitive. It was held in the case of Bachan Singh
versus State of Punjab that the rule of law which permeates the entire fabric of the
constitution of Shikharabad Excludes arbitrariness. 
The first claim to support the aforementioned ground is that Absolute discretion was not
conferred upon the administrative authorities. Although the case at hand does not have the
conferment of unguided powers on the administration, it is not necessary that the same part of
the statute that grants the authority also establishes the norms of guidance or policy that the
administrator must follow. Furthermore, Courts have upheld ambiguous policy statements to
guide administrative discretion as consistent with Art. 14 such as in the case of Chandrakant
Saha v. Union of India. There have been several examples where extensive discretion has
been granted on the basis that the legislative provision giving authority includes adequate
rules, principles, or policies to govern the use of power. 19 While extensive discretionary
power has been granted in this case, it is limited to sufficient guidelines and is not absolute. 

The second claim is that there had been no administrative discrimination. It does not fulfil
Art. 14 if the administrative authority applies it in a discriminatory manner or does not follow
the policy or concept established in the Act to control discretion. There has been no "arbitrary
application of the laws" in this situation; instead, there has been a definite classification, i.e.,
appointment of secretary for verifying the statistics related to NOVID- 19. Moreover,
Pannalal Binjraj v. Union of India2, the government would have a strong defence if it could
establish its credibility. The assailed order seeks to accomplish a laudable goal which is to
stop the spread of the virus and to preserve and ameliorate public order and public health.

Your lordship the counsel submits that the impugned Order does not violates the principle of
federalism because (i) the ‘pith and substance’ of the Order lies outside the legislative domain
of the State Legislatures and (ii) Residuary Powers with respect to legislative competence is
vested with the Parliament.

To determine the pith and substance of the Order two things need to be considered i.e.,
Object and purpose, (ii) scope and (ii) effect of the provisions.

according to Article 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.

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 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.

Entry 97 of List I read with Article 246 and 248 of the Constitution provide for the scope of
Residuary Powers.1 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.2 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.3 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.4 Thus, in light of Contention 2.1 it is established that the State Legislatures
are incompetent to pass legislation with respect to the subject-matter of the Linking of Rivers
Act. Thereby, it is humbly submitted that § 3 of the said Act is intra vires the Constitution
and that Parliament has not encroached upon the constitutional powers of the States.

Your lordships the Hon’ble Court in the case of UOI v. HS Dhillon held that if the law does
not fall in the state list, the Parliament has legislative competence to enact the law by virtue
of its residuary power and it would not be necessary to go into the question whether it falls
under any entry in the Union list or Concurrent list.

1
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.
2
Second G.T.O. v. Nazareth, AIR 1971 SC 999 at ¶ 10; Mittal v. Union of India, AIR 1983 SC 1 at ¶¶ 70-72.
3
International Tourist Corpn. v. State of Haryana, AIR 1981 SC 774, ¶ 7.
4
State of West Bengal v. Kesoram Industries, (2004) 10 SCC 201, ¶ 251.