TEAM CODE: F

BEFORE THE HONOURABLE SUPREME COURT OF PAMMU

WRIT PETITION (S) CIVIL NO (S) /2015

UNDER ARTICLE 32 OF THE CONSTITUTION OF PAMMU

IN THE MATTER OF
COMMON CAUSE & ANR .................................................... PETITIONER(S)

VERSUS

UNION OF PAMMU ............................................................... RESPONDENT

Upon the submission to the Hon’ble Chief Judges and other judges of the
Supreme Court of Pammu

Counsels for Appellant-

1.DEEKSHITH.M.L

2.RAZAL SALAH

3.SREERAG.S.S

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................................................. II

INDEX OF ABBREVIATIONS .................................................................................................................................. III

INDEX OF AUTHORITIES ....................................................................................................................................... IV

STATEMENT OF JURISDICTION ......................................................................................................................... VIII

STATEMENTS OF FACTS........................................................................................................................................ IX

STATEMENT OF ISSUES ........................................................................................................................................... X

SUMMARY OF ARGUMENTS .................................................................................................................................. XI

ARGUMENTS ADVANCED ....................................................................................................................................... 1

1. WHETHER THE REPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT) ORDINANCE,

2014 IS ARBITRARY IN NATURE AND AFFECTS THE RIGHT OF MR.MOOTKAR RITVICK

ROSHAN TO CONTEST THE ELECTIONS ............................................................................................. 1

2. WHETHER THE TELECOM ORDER ONLY TARGETING THE WEBSITES PROMOTING

“REVENGE PORN” IS VALID ................................................................................................................... 6

3. WHETHER GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS

CONSTITUTIONALLY VALID ................................................................................................................. 10

PRAYER FOR RELIEF ................................................................................................................................................ XII

II
 TABLE OF ABBREVIATIONS

¶ Paragraph Number
& And
AIR All India Reporter
Anr. Another
DPSP Directive Principles of State Policy
IT Act Information Technology Act
IPC Indian Penal Code, 1860
No. Number
Ors. Others
RPA Representation of People’s Act
p. Page Number
pp. Page Numbers
s. Section
SC Supreme Court
SCC Supreme Court Cases
ss. Sections
U/s. Under Section
U.N United Nations
v. Versus
Vol. Volume
International Criminal Tribunal for
ICTR
Rwanda
International Covenant on Civil and
ICCPR
Political Rights
UDHR Universal Declaration of Human Rights

ECHR European Convention on Human Rights

III
 INDEX OF AUTHORITIES

TABLE OF CASES

S.NO CAUSE TITLE CITATION

1. D.C. Wadhwa & Ors v. State Of Bihar & Ors 1987 AIR 579
1. S.R.Bommai v. Union of India AIR 1994 SC 1918
2. A.K. Roy v. Union of India 1982 SCR (2) 272
3. R.C. Cooper v. Union of India 1970 SCR (3) 530
4. State of Rajasthan v. Union of India AIR 1977 SC 1361
5. B.A.Hasanahba And Others v. State Of Karnataka ILR 1998 KAR 85
And Others
6. Atam Prakash v. State of Haryana AIR (1986) SC 854
7. Golaknath v. State of Punjab AIR (1967) SC 1643
8. Indra Sawhney v. Union of India (1992) Supp (3) SCC 217
9. Ismail v. State of Rajasthan AIR 1958 Raj 96
10. Bombay v. Bombay Education Society (1955) 1 SCR 568
11. M.G.Badappanavan v. State of Karnataka AIR 2001 SC 260
12. Punjab Higher qualified teacher’s union v. State of (1988) 2 SCC 407
Punjab
13. Ajay Hasia v. Khalid Mujib (1981) 1 SCC 722
14. Charinjitlal Chaudary v. Union of India AIR 1951 SC 41
15. State of Orissa v. Bhupendra AIR 1962 SC 945
16. Maneka Gandhi v. Union of India AIR 1978 SC 597
17. E.P.Royappa v. State of Tamil Nadu (1974) 2 SCR 348
18. R.K.Garg v. Union of India AIR 1981 SC 2138
19. Aruna Roy v State of Rajasthan (WP I D No. 1 of 2015)
20. Dulari Devi and others v. State of Rajasthan and AIR 2015 Raj 84
Others
21. M.Mohamed Kutty v. State of Kerela AIR 2003 Ker 39, 45
22. State v. Thakur Prasad 1958 All LJ 578
23. Lawrence v. Texas 539 US 558 (2003)
24. Kharak Singh V. State of Uttar Pradesh and Ors (1964) 1 SCR 332
25. Re Semayne (1604) 5 Coke Rep. 91

IV
26. Wolf v. Colorado 338 U.S. 25 (1949)
27. Govind v. State Of Madhya Pradesh 1975 SCR (3) 946
28. Rajagopal v. State of Tamil Nadu 1994(6) SCC 632
29. Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748
30. State of Gujarat v. Mirzapur Moti Kureshi Kassab (2005)8SCC 534
Jamat
31. Hanif Quareshi v. State of Bihar AIR 1958 SC 731
32. S.Ahmad v. State of Mysore AIR 1975 SC 1443
33. M.H.Quareshi v. State of Bihar AIR 1958 SC 731
34. Abdul Hakim v. State of Bihar AIR1961 C 448
35. Board of trustees of the port of Bombay v. AIR 1983 SC 109
Dilipkumar R.Nandh Karni
36. Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180, (1985) 3
SCC 545

V
 BOOKS REFERRED

1. D.D.BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA,

INDIA, 2007, 8TH EDITION, VOLUME I AND II
2. D.D.BASU, CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 8TH EDITION
3. D.D.BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009,
14TH EDITION
4. D.D.BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA,
2008, 3RD EDITION
5. H.M.SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL PUBLICATIONS,
INDIA, 2004, 4TH EDITION, VOLUME I,II AND III
6. V.N.SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY,
INDIA, 2008, 11TH EDITION
7. D.J. DE, INTERPRETATION & ENFORCEMENT OF FUNDAMENTAL
RIGHTS,EASTERN LAWHOUSE,INDIA, 2008, 3RD EDITION
8. M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2014, 7TH
EDITION, VOLUME 1
9. BASU DR.DURGADAS, CONSTITUTIONAL REMEDIES AND WRITS, 1ST ED.
REPRINT 1994, KAMAL LAW HOUSE, CALCUTTA.
10. DATARARVIND, COMMENTARY ON THE CONSTITUTION OF INDIA, 2ND
EDITION 2007, WADHWA NAGPUR.
11. JAIN MAHIBIRPRASHAD, INDIAN CONSTITUTIONAL LAW, 5TH EDITION 2003,
WADHWA&CO. DELHI.
12. MAJUMBDAR P.K, COMMENTARY ON THE CONSTITUTION OF INDIA, 9TH
EDITION (2005), DELHI LAW HOUSE, NEW DELHI.
13. R.N.CHOUDRY, COMMENTARY ON ELECTION LAWSAND PRACTICES IN
INDIA, 3RD EDITION, ORIENT PUBLISHING COMPANY.

VI
 STATUTES REFERRED

• CONSTITUTION OF INDIA
• REPRESENTATION OF PEOPLES ACT, 1950
• INFORMATION TECHNOLOGY ACT, 2008
• INDIAN PENAL CODE

LIST OF JOURNALS REFERRED

• SUPREME COURT CASES (SCC)

• ALLINDIA REPORTER (AIR)
• SUPREME COURT REPORTER (SCR)

WEBSITES REFFERED

• www. www.lexisnexis.co.in
• www.indiakanoon.org
• www.manupatra.com
• www.westlawindia.com
• www.heinonline.org

VII
 STATEMENT OF JURISDICTION

The Petitioner humbly invokes the writ jurisdiction of this Hon’ble Court under Article 32 of

the Constitution of Pammu.

VIII
 STATEMENT OF FACTS

1. Pammu is a quasi-federal country with a rich cultural history. The Sabka Vikaas Party
in Pammu had won the general elections in 2004 and also in 2009. The next elections
were scheduled for May 2014.
2. During its tenure, SBP introduced a Bill in December 2013, which sought to bring in
an amendment in the Representation of People’s Act in order to introduce certain
educational qualifications for being eligible to contest polls for Member of
Parliament. It was strongly opposed by all the opposition parties which resulted in the
entire session of Parliament being washed out. This stemmed in a lot of financial loss
for the government as far as the central exchequer was concerned.
3. Later, the Representation of People’s Act (Third Amendment) Ordinance, 2014 was
issued which laid down eligibility criteria that a candidate must have passed class 10
of the Board of Secondary Education or its equivalent for contesting in MP elections.
4. SBP won the 2014 elections and after a few months, the Telecom Ministry came out
with an Order (Telecom Order’) directed to the Internet Service Providers to “control
free and open access” to around 900 porn sites. There was a vehement outcry in the
nation following the ban.
5. The Gauvansh Sanrakshan and Gausamvardhan Act, 2015 which imposed criminal
sanction on slaughtering of cows, bulls and bullocks, selling of beef and as well as
consumption of beef was also introduced by the SBP government.
6. In light of the above, Mr.Mootkar Ritwick Roshan approached the Supreme Court of
Pammu under Article 32 of the Constitution that his right to contest the elections has
been affected by the ordinance. NGO Common Cause filed two separate petitions in
the Supreme Court against the so called porn ban and the beef ban. The NGO also
intervened in the writ petition filed by Mr.Roshan.
7. After preliminary hearing on the matter, the Supreme Court granted leave to hear the
petitions. For the sake of convenience, the Supreme Court decided to club the matters
as the petitioners and the respondents were same in all the three cases.

IX
 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE REPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT)

ORDINANCE, 2014 IS ARBITRARY IN NATURE AND AFFECTS THE RIGHT OF

MR.MOOTKAR RITVICK ROSHAN TO CONTEST THE ELECTIONS.

ISSUE 2

WHETHER THE TELECOM ORDER ONLY TARGETING THE WEBSITES PROMOTING

"REVENGE PORN" IS VALID.

ISSUE 3

WHETHER THE GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS

CONSTITUTIONALLY VALID.

X
 SUMMARY OF ARGUMENTS
ISSUE 1

THE REPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT) ORDINANCE 2014 IS

ARBITRARY IN NATURE AND AFFECTS THE RIGHTS OF THE PETITIONER TO CONTEST THE

ELECTIONS.

It is humbly submitted that the present petition is maintainable under Article 32 of the
Constitution, as the fundamental rights of the petitioner is violated in this case. The logical
interpretation of the Preamble will show that a hardworking, right thinking citizen of this
Nation cannot be deprived of his right to represent the people, on the ground that he does not
possess certain educational qualification. The impugned ordinance transgresses Articles 14,
15 of the Constitution of Pammu and it clearly defies the Preamble of the Constitution.

ISSUE 2

THE TELECOM ORDER TARGETING THE WEBSITES PROMOTING “REVENGE PORN” IS

INVALID AND ULTRA VIRES THE PROVISIONS OF THE CONSTITUTION.

It is humbly submitted that the Telecom Order is violative of the fundamental right of privacy
guaranteed to the citizens of Pammu enshrined under Article 21 of the Constitution. The ban
on pornography is a regressive measure since the term revenge pornography does not fall
under the ambit of obscenity. The government has failed in enacting effective legislations to
curtail the proliferation of revenge porn by punishing the incriminators, instead has banned
900 porn sites.

ISSUE 3

THE GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS UNCONSTITUTIONAL.

It is humbly submitted that the Gauvansh Sanrakshan and Gausamvardhan Act of 2015 is
unconstitutional as it violates the fundamental rights under Articles 19(1)(g), 21 and 25 of the
Constitution of Pammu. This unreasonable ban affects the livelihood of people from local
butchers to leather manufacturers. It will also have a serious impact on Pammu economy. It is
clearly unconstitutional to determine the food habits of a person or a community.

XI
 ARGUMENTS ADVANCED

1. THE REPRESENTATION OF PEOPLE’S ACT (THIRD AMENDMENT) ORDINANCE 2014 IS

ARBITRARY IN NATURE AND AFFECTS THE RIGHTS OF THE PETITIONER TO CONTEST THE

ELECTIONS

The Union of Pammu has witnessed lakhs of citizens who have not even seen the footsteps
of school becoming great personalities in various fields and also having represented the
people of the Nation in the Parliament. Such being the case the present ordinance is ultra
vires to the Constitution and should be declared null and void.

1.1. There is no immediate necessity for promulgation of ordinance under Article 123 of
the Pammu Constitution
The powers of the President to promulgate ordinances are laid down clearly under Article
123.1 It states that the President shall promulgate Ordinance only if he finds necessary
circumstances are in existence and that immediate action is of the necessity. It is
imperative to note that the two words, namely, ‘necessary circumstances’ and ‘immediate
action’ are the key elements with regard to promulgation of an Ordinance.

In Wadhwa's case2 the Supreme Court expressed concern about the continuous misuse of
the ordinance power. On the question of the review power of the Courts on ordinances, the
Court has power to review ordinance post Bommai’s case,3 where it was clearly
pronounced that judicial review is permissible. Therefore the President’s Ordinance
making power is not beyond the scope of judicial review4.

In RC Cooper v. Union of India5 the Supreme Court, held that

“the President’s decision could be challenged on the grounds that ‘immediate action’ was
not required; and the Ordinance had been passed primarily to bypass debate and
discussion in the legislature”.
1
Art.123: Power of President to promulgate Ordinances during recess of Parliament, (1) If at any time, except
when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it
necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to
him to require.
2
D.C. Wadhwa & Ors v. State Of Bihar & Ors,1987 AIR 579
3
S.R .Bommai v. Union of India, AIR 1994 SC 1918, “The Court ruled that the “satisfaction” of the President
while making a proclamation of Ordinance is open to challenge on the ground of mala fide or being based
wholly on extraneous and or irrelevant grounds.”
4
AK Roy v. Union of India, 1982 SCR (2) 272
5
RC Cooper v. Union of India, 1970 SCR (3) 530

1
 Under Article 123 when the satisfaction of the President is questioned on the ground of
mala fide, it cannot be brushed aside as a ‘political question’ i.e. beyond the ken of the
Courts.6 Further, the power to promulgate an Ordinance is essentially used to meet an
extraordinary situation and it cannot be allowed to be perverted to serve political ends.7

An Ordinance8 unlike an Act is to be very carefully scrutinised by a Court if it is

challenged because an Ordinance is an unfettered, unbridled power to promulgate
provisions which have the effect of law without their going through the constitutionally
prescribed process.9

1.2. The impugned Ordinance defies the Preamble of the Constitution

The Preamble of our Constitution emphatically portrays the object and the purpose in
unequivocal terms forming the basic structure of the Constitution.10 More specifically,
“equality of status and of opportunity to promote among them all”, is the basic foundation
of the Constitution and the very purpose of the representative institutions in the country is
to give equal opportunity to all including those who do not have formal education in
schools.

Prescribing educational qualification is directly in violation of the Preamble of the

Constitution and at the outset has no object sought to be achieved. Contrarily it is a serious
assault on the participatory democracy which is an integral part of the basic structure of
our Constitution. The Preamble contains the ideals and aspirations11 or the object which
the Constitution makers intended to be realised12 by its enacting provisions.13

6
State of Rajasthan v. Union of India, AIR 1977 SC 1361
7
AK Roy v. Union of India, 1982 SCR (2) 272, “During the two decades between 1960 and 1980, no less than
200 ordinances have been issued by the President. It cannot be that every such case was one of such emergency
that irreparable injury would have been caused if the measure was left to legislation in the next session of
Parliament”.
8
In the 15thLokSabha between 2009- 2014, twenty five Ordinances were promulgated. In the past few years it
has averaged to six per year.
9
B.A. Hasanahba & Others v. State Of Karnataka & Others, ILR 1998 KAR 85
10
S.R. Bommai v. Union of India, AIR 1994 SC 1918
11
Atam Prakash v. State of Haryana, AIR (1986) SC 854
12
Golaknath v. State of Punjab, AIR (1967) SC 1643
13
Indra Sawhney v. Union of India, (1992), Supp (3) SCC 217

2
 1.3. The impugned ordinance transgresses Article 14 of the Pammu Constitution
The impugned Ordinance is ultra vires to Article 1414 as it arbitrarily and unreasonably
differentiates between candidates who possess and who lack the prescribed educational
qualification.15It also discriminates between candidates having formal educational
qualifications and candidates who are literate even without possessing a formal
educational qualification.16 The Ordinance has failed to satisfy the test of reasonable
classification17 and is not based on intelligible differentia. The differentia which is the
basis of the classification and the object stated in the Act must have a nexus to qualify the
test under Article 14.18
Equality being the basic feature,19 law prohibits creation of a class without a rational
basis.20A classification under Article 14 made without any substantial basis should be
regarded as invalid.21 On the other hand, an ordinance would be invalid for contravention
of the constitutional limitations22 to which Parliament is subject to, including fundamental

14
Equality before law-“The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth”

15
In the case on hand, the prime inequality is created on the basis of educational qualification which is totally
irrelevant and insignificant in respect of the duties and responsibilities of the members of parliament. The
personality and capability of a candidate contesting in the election will be assessed by each and every citizen at
his wisdom and he is free to elect any candidate whom he feels best to serve the particular constituency.

16
In Ismail v. State of Rajasthan, AIR 1958 Raj 96, The Hon’ble High Court of Rajasthan has recognized such a
distinction as unreasonable and arbitrary stating that, “If it were provided in the Rule that the minimum
qualification of literacy would be that the candidate should have passed the first primary class from a school,
then it would have excluded all those persons who had studied privately and not joined any school. That
provision would have worked to the detriment of more persons and it would have unreasonably excluded those
literate persons who had studied privately or in an unrecognised school and who were otherwise more literate
than the persons who had passed the first primary class”.
17
The classic nexus test as a basis of determining constitutionality with respect to Article 14 was enunciated by
S.R. Das, J. in the State of West Bengal v. Anwar Ali Sarkar,17 thus :"In order to pass the test of permissible
classification two conditions must be fulfilled:

(i) that the classification must be founded on an intelligible differentia which distinguishes those that are
grouped together from others left out of the group,
(ii) That the differentia must have a rational relation to the objects sought to be achieved by the Act. The
differentia which is the basis of the classification and the object of the Act are distinct and what is
necessary is that there must be nexus between them."

18
Bombay v. Bombay Education Society, (1955) 1 SCR 568.
19
M.G.Badappanavan v. State of Karnataka, AIR 2001 SC 260
20
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722
21
Charinjitlal Chaudary v. Union of India, AIR 1951 SC 41
22
Punjab Higher qualified teacher’s union v. State of Punjab, (1988) 2 SCC 407 ,”Where there is arbitrariness
in State action, whether by the legislature or executive or an authority under Art 12, the equality clause
immediately springs into action and strikes down such action”.

3
 rights under Article 14,23 Article 21.24Article 14 embodies guarantee against arbitrariness25
and equality cannot be cribbed, cabined and confined within traditional and doctrinaire
limits.26

Prescription of educational qualification for contesting elections in any democratic

institution, unless there is strong nexus with the object, to be achieved, is an anti thesis to
the democratic governance of the institution in a Republic27.

The object of Article 14 is wider and is to ensure fairness and equality of

treatment.28Therefore through the impugned ordinance a candidate who does not possess
particular educational qualification cannot be denied his right to contest. It is
discrimination29 and violates the equality clause.

1.4. The Ordinance createsgender inequality and denial of opportunity to

underprivileged thus striking at the heart of Articles 15(3) and 15(4)
The Ordinance is violative of Article 1530 of the Constitution. This Article not only
provides that the State shall not discriminate against any citizen on grounds only of sex,
but Article 15 (3)31 also provides special provision for women and children. Thus, in such
circumstance, the impugned ordinance makes the special provision of reservation for
women an otiose and a large segment of women would be disqualified since their literacy
rates are much lower than the male population due to various socio economic conditions.32

23
State of Orissa v. Bhupendra, AIR 1962 SC 945
24
Maneka Gandhi v. Union of India, AIR 1978 SC 597
25
E.P.Royappa v. State of Tamil Nadu , (1974) 2 SCR 348, It does not forbid classification for the purpose of
legislation, provided such classification is not arbitrary, but it must be based on qualities or characterisation
which have a reasonable relation to the object of the legislation
26
R.K.Garg v. Union of India, AIR 1981 SC 2138
27
Aruna Roy v State of Rajasthan (WP (C) D No. 1 of 2015)
28
Maneka Gandhi v. Union of India, AIR 1978 SC 597
29
In Dulari Devi and others v. State of Rajasthan and others, AIR 2015 Raj 84, the Court observed that, “We
are, prima-facie, satisfied that in the State of Rajasthan in which the rate of literacy and the opportunity of
formal education was limited, the prescription of any disqualification on the ground of qualification for
contesting elections in the Panchayati Raj Institutions, excluding the masses, who did not have an opportunity of
formal education, is violative of the right of equality under Article 14 of the Constitution of India.”
30
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them
31
Nothing in this article shall prevent the State from making any special provision for women and children
32
People’s Union of Civil Liberties v. Union of India, C.W.P.No. 18112 of 2015

4
 This Ordinance also infringes the rights of socially and educationally backward classes of
citizens whose rights under Article 15(4) are denied.33 The State instead of implementing
the rights of the citizens under Article 15 are breaching into the welfare provisions enacted
for the advancement of women and underprivileged by denying them the opportunity to
contest in elections.

The poor, underprivileged and downtrodden, cannot be denied participation in a

democracy merely on the ground that they do not have educational qualification for such
inclusion.34 The impugned Ordinance, leads to denial of opportunity to rural population
and women whose literacy rates are comparatively lesser.35 This kind of selective
discrimination is obstructing the participatory democracy by denying equal representation
from all sectors of the population.

1.5. The disqualification of candidature based on educational qualification is invalid

The provisions of the Ordinance is clearly inconsistent with Article 21 of Universal
declaration of Human Rights, 195036 and Article 25 of The International Covenant for
Civil and Political Rights 1973,37 which provides right to every citizen to take part in
public affairs and contest election without any unreasonable restrictions.

The term literate was defined in the 2001 Census38 which clearly states that it is not
necessary for a person to have received any formal education or passed any minimum

33
Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes
34
Supra note 27
35
The literacy rate of Pammu in 2011 Census works out to 74.04% and corresponding figures for male and
female are 82.14% and 65.46%. The literacy rate in the Country according to census 2011 is abysmally low with
rural women's literacy much lower than the average.
36
Art 21 of UDHR, Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this shall be expressed in periodic
and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
37
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2
and without unreasonable restrictions:(a) To take part in the conduct of public affairs, directly or through freely
chosen representatives;(b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the
electors;(c) To have access, on general terms of equality, to public service in his country.

38
Literate is a person aged 7 years and above who can both read and write with understanding in any language
has been taken as literate. It is not necessary for a person to have received any formal education or passed any
minimum educational standard for being treated as literate. People who were blind and could read in Braille are
treated to be literates.

5
 educational standard for being treated as literate. So a person might not have educational
qualification but can still be a literate.39

The State has failed in its obligation to provide the infrastructure to build the education
system40 and hence cannot insist by law that candidates in order to contest election ought
to have a certain minimum education. While passing legislations, the State must analyse
the social, political and economic conditions of the country and pass suitable legislations.
This particular Ordinance has been passed when the country is still suffering from
illiteracy and lack of primary schools and infrastructure and the duty of the State is to
provide education as laid down in Article 21A41 and The Right of Children to Free and
Compulsory Education (RTE) Act, 2009.42 But the State instead of implementing the Act
is shifting its liability to the citizens by imposing such eligibility criteria to contest in
elections.

Therefore, it is clear that this Ordinance is unconstitutional and has been passed without
due application of mind and in utter violation of constitutional principles. In addition to
this, if such ordinances are allowed to subsist or exist, the extraordinary powers given with
regard to an ordinance will be whittled down to a normal legislative alternative.

2. THE TELECOM ORDER TARGETING THE WEBSITES PROMOTING “REVENGE PORN” IS

INVALID AND ULTRA VIRES TO THE PROVISIONS OF THE CONSTITUTION.

The telecom order targeting websites promoting revenge porn is invalid as there is no
basis on which the government has banned 900 porn sites. Therefore it is arbitrary and
unreasonable, violating the right to privacy of individuals. Revenge porn is a unique act as
the intention is to cause harm by way of assault on the reputation of an individual.43

2.1. Difference between Obscenity and Pornography.

39
M.Mohamed Kutty v. State of Kerala, AIR 2003 Ker 39, 45
40
Article 45 of the Constitution of Pammu
41
Art 21A reads as follows, “The State shall provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law, determine”
42
An Act to provide free and compulsory education to all children of the age of six to fourteen years
43
Citron & Franks, Criminalising Revenge Porn (2014)

6
 Pornography is "a depiction of licentiousness or lewdness, a portrayal of erotic behaviour
designed to cause sexual excitement”.44 It is the depiction of sexual behaviour45 that is
intended to arouse sexual excitement in its audience.

Obscenity means offensive to chastity or modesty, expressing or personating to the mind

or view something that delicacy, purity and decency forbid to be expressed or anything
expressing unchaste and lustful ideas, impure or lewd.46

The framers of the telecom order have failed to understand the intricate difference between
obscenity and pornography. They have tried to attract ‘pornography’ within the scope of
obscenity which is untenable. ‘Obscenity’ has a wider connotation and pornography
cannot be brought under its ambit.

2.2.The impugned telecom order contravenes Right to Privacy bestowed under Article 21 of
the Constitution.

The law of privacy is recognition of the individual’s right to be let alone and to have his
personal space inviolate beyond the reach of Government.47The scope of Art.21 was
enormously increased to include right to privacy as a fundamental right48 as it is an
essential ingredient of personal liberty.49

A person’s house is his castle50and nothing is more deleterious to a man’s physical

happiness and health than a calculated interference with his privacy.51

In Rajagopal v. State of Tamil Nadu,52 it was held that right to privacy53 has acquired
constitutional status. The American and English Courts have held that it is implicit in the

44
The term pornography has been defined by the U.S Supreme Court in Miller v. California and it used the
definition of pornography made by Webster's Third New International Dictionary of 1969
45
Black's Law Dictionary followed the Miller’s test and defined pornography “as material that taken as a whole
the average person, applying contemporary community standards, would find appealing to the prurient
interest.”
46
State v. Thakur Prasad, 1958 All LJ 578
47
Lawrence v. Texas, 539 US 558 (2003)
48
Maneka Gandhi v. Union of India, (1978) 2 SCR 621
49
Kharak Singh v. State of Uttar Pradesh and Ors, (1964) 1 SCR 332
50
Semayne’s Case, (1604) 5 Coke Rep. 91; Wolf v. Colorado, 338 U.S. 25 (1949)
51
Govind v. State Of Madhya Pradesh, 1975 SCR (3) 946
52
Rajagopal v. State of Tamil Nadu, 1994(6) SCC 632
53
Supra 51

7
 concept of right to life and liberty. The same view was taken in Kharak Singh v. State of
Uttar Pradesh and Others.54

According to William Blackstone, “the law is so particular and tender a regard to the
immunity of a man’s house that it stiles it his castle, and will never suffer it to be violated
with impunity”.

2.3. Total ban on access to porn websites emasculates the fundamental rights of the citizens
There are no laws55to curb internet pornography, other than those relating to child
pornography. The agitation is not about liking or disliking porn, but about government
hijacking personal liberties of citizens.

There is no proof as to whether the websites banned are those of revenge pornography
because the SBP56 said that such websites were in bad taste, disrespected women and was
against the cultural tenets of Pammu.57Since there is no conclusive proof about the type of
websites banned, neither Section 67 of IT Act58 nor Section 292 of IPC59can be attracted.

In Shankarsan Krishnu Munda v. State of Maharashtra it was held that “private viewing
of obscene film does not constitute an offence and if the obscene object is kept in a house
for private viewing and is not for sale, hire, public exhibition or circulation, the accused
cannot be charged under Section 292”.

It is contended that such regressive measures portray the government as a totalitarian state.
Moral policing of State does not extend to a person’s right to privacy. The concept of
culture is not denied, but, in the world of globalization, it is the prime duty of the
government to create awareness about the negative impacts of such pornographic websites
rather than taking regressive measures.

2.4. International instruments envisage right to privacy of an individual

The right to privacy is also given importance internationally by various covenants.

“Everyone has the right to respect for his private and family life, his home and his

54
Kharak Singh v. State of Uttar Pradesh and others, AIR 1963 SC 1295, “Our constitution does not expressly
declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal
liberty.”
55
Information Technology Act, 2008; Indian Penal Code ; Indecent Representation of women (prohibition) Act
56
SabkaVikas Party
57
Moot proposition ,¶ 3
58
Information Technology Act, 2008
59
Indian Penal Code , 1860

8
 correspondence”.60 Pammu is a signatory to the ICCPR61 which enshrines right to
privacy.62

Article 12 of the UDHR 194863 is almost in similar terms. By violating such ratified
Covenants, DPSP’s64 have also been violated.

2.5. Ban on “revenge porn” is unreasonable and unjustified.

When the exercise of a fundamental right is prohibited, the State has the burden of proving
that a total ban on such right is in general public interest.65 There is no definition of
revenge porn under the existing statutes of Pammu. Thus, classification is unjust and
arbitrary without any basis. Although the Government said that it had acted on
representations, it refused to make them public.66 This raises dubious questions as to the
veracity of the representations received by the government.

Porn in general can be made with the consent of the parties involved in it. Revenge porn is
without the consent of the parties and it is not possible to distinguish ‘revenge porn’ from
porn. The victim must register a complaint against such websites publishing sexually
explicit content without her consent. Only then it is possible to identify such websites
promoting revenge porn. So, the government must first frame guidelines for regulating
such videos rather than banning the websites. Imposing ban without proper regulation is
unhealthy. The incriminators of such activities must be penalized with the enactment of,
stringent penal laws. Since there is no special legislation on ‘revenge porn’, banning of
websites will not prevent offenders from committing such unlawful activities.

2.6. Ban is not the solution.

Imposition of ban is not the solution to preserve cultural fabric.67 Even if the government
bans Internet porn, people who cannot live without it will easily find alternative sources.

60
Article 8 of The European Convention on Human Rights
61
International Covenant on Civil and Political Rights
62
Article 17 ICCPR is as under “No one shall be subject to arbitrary or unlawful interference with his privacy,
family, human or correspondence, nor to lawful attacks on his honour and reputation.”
63
Universal Declaration of Human Rights
64
Directive Principles of State Policy
65
Narendra Kumar & Ors. v. The Union of India,(1960) 2 SCR 375
66
Moot Proposition , ¶ 5
67
A 2011 American article on science, copiously quoted from several sample surveys and studies from journals
that porn led to none of the detriments that it is believed to cause. On the contrary, there is scientific possibility
to suggest that the porn could have a mitigating influence on people since it offered an alternative (self-
medication with fantasy) to sexual satisfaction.

9
 But, it will expose the government’s proclivity to overlook the real underlying issues that
foster and perpetuate sexism, violence and exploitation against women. Denial will create
eagerness and eagerness will lead to crimes. A direct infringement on the right of citizens
by imposing a total ban is clearly untenable in the eyes of law.

The most effective way to combat revenge porn is through legislations on revenge-porn
specific laws.68 Due to the absence of effective legislations on revenge porn, the law
enforcing authorities are unable to take efficient measures to curb the revenge porn
menace. Thus specifically tailored revenge porn statutes are the best way to combat
revenge porn issues.69

The ICTR70 and the International Criminal Tribunal for the former Yugoslavia (ICTY)
also suggested to amend statutes to include revenge porn as a crime.71

3. THE GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS

UNCONSTITUTIONAL.

This impugned Act violates the fundamental rights guaranteed under Articles 19(1)(g), 21
and 25(1)72 of the Constitution. Beef Consumption is a matter of personal choice and the
Act violates rules of Secularism since it is based on religious grounds. Right to life under
Article 2173 includes right to choose any kind of food. Beef is one of the most affordable74
sources of protein for poor people. Stricter anti-beef laws discriminate against tribals and

68
Mary Anne Franks, Combating Non-Consensual Pornography: A Working Paper (October 7, 2013)
69
Ibid
70
International Criminal Tribunal for Rwanda
71
According to the ICTR, “sexual violence is not limited to physical invasion of the human body and may
include acts which do not involve penetration or even physical contact.” The ICTY held that, “ International
criminal law should punish not only rape, but “all serious abuse of a sexual nature inflicted upon the physical
and moral integrity of a person by means of coercion, threat of force, intimidation in a way that is degrading
and humiliating for the victim’s dignity.”
72
Freedom of conscience and free profession, practice and propagation of religion

1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
73
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except
according to procedure established by law.
74
According to the Commentary on Committee on Economic, Social and Cultural Rights, General Comment 12,
the Right to Adequate Food (Article 11 of the Covenant), UN Document No E/C/12/1999/5, 12 May 1999,“The
fundamental definition of right to food can be laid down as, “the right to adequate food is realized when every
man, woman and child, alone or in community with others, have physical and economic access at all times to
adequate food or means for its procurement”.

10
 certain communities who rely on the cheap meat as a source of protein. It is
unconstitutional to determine the food habits of a person or a community just to satisfy the
religious sentiments of the majority.

3.1. The State has failed to balance religious and cultural rights of its citizens

Article 25(1) incorporated in the Constitution recognises the principle that real test of a
true democracy is the ability of even an insignificant minority to find its identity under the
Constitution.75The reason behind beef ban is religious sentiments of a particular
community as they consider the animal sacred. The Supreme Court has reiterated in
numerous cases that cattle can be slaughtered after they cease to be milch76 or draught.77
But it is evident that the ban on slaughter of even aged and useless cattle is to satisfy the
religious sentiments of a particular community in Pammu.

3.2. Total prohibition cannot be sustained in law

On scrutiny of Art 4878 there arises a proposition as to whether the term ‘milch’ and
‘draught cattle’ is specifically used to prohibit slaughter of such animals till they have
genetic qualities and that this protection cannot be accorded when they cease to be milch
or draught cattle.79

The opinion of experts is that after particular age bulls, bullocks and buffaloes are no
longer useful for breeding, draught and other purpose and whatever little use they may
have then is greatly offset by the economic disadvantage of feeding and maintaining
unserviceable cattle.

A total ban on the slaughter of bulls and bullocks after they cease to be capable of yielding
milk or working as draught animals cannot be termed reasonable in the interest of the
general public.80

75
Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748
76
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat,(2005)8SCC 534 the Court observed that “Milch
breeds include all cattle breeds which have an inherent potential for milk production”
77
Chambers 20th Century Dictionary defines 'draught animal' as 'one used for drawing heavy loads
78
Organisation of agriculture and animal husbandry-“The State shall endeavour to organise agriculture and
animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving
the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
79
It is contended that Art 48 of the directive is confined to cows and calves and to those other animals which are
potentially capable of yielding milk or doing work as draught cattle but does not extend to cattle which were at
one time milch or draught but have ceased to be such.
80
Hanif Quareshi v. State of Bihar, AIR 1958 SC 731

11
 There is a distinction between the facts of the State of Gujarat v. Mirzapur Moti Kureshi
Kassab Jamat81 and present case on hand. The facts of this case state that there is a ban on
selling and consumption of beef whereas in Mirzapur Moti case the Court did not dwell
on this point. Ban on selling and consumption will impair the livelihood of traders who
depend on beef related industry for their survival and this ban affects the fundamental
rights of farmers, butchers, beef exporters and every other citizen who is denied the right
to consume food of his choice. Therefore the dictum in Mirzapur case cannot be applied
here.

3.3. Impact on beef trade business

The rights of farmers, butchers, leather exporters and other middlemen involved in beef
related business stands infringed. The previously existing exemption of old and unfit cattle
for agriculture was reasonable as it created a balance between Article 48 and rights of the
butchers under Article 19(1)(g)82 but this Act imposed a blanket ban irrespective of age
and productivity.

To reconcile the rights of butchers to carry on their trade, and restrictions imposed on
killing of animals through several state laws, the Supreme Court earlier had adopted an
economic approach, viz, killing of useful animals could be prohibited but not of those
animals who have become economically useless to the society83.

Further, Article 301 guarantees freedom of trade. A provision infringing Arts 30184 may
and ordinarily will, infringe Article 19(1)(g) as well and so it can be challenged under
Article 19(1)(g).85

The prohibition imposed on the Fundamental Right to carry on trade and commerce cannot
be regarded as reasonable, if it is imposed not in public interest, but merely to respect the
susceptibilities and sentiments of a section of the people.

81
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005)8SCC 534
82
to practise any profession, or to carry on any occupation, trade or business

(1) All citizens shall have the right

(g) to practise any profession, or to carry on any occupation, trade or business

83
Hanif Quareshi v. State of Bihar, AIR 1958 SC 731
84
Subject to the other provisions of this Part, Trade, Commerce and Intercourse throughout the territory of India
shall be free.
85
S.Ahmad v. State of Mysore, AIR 1975 SC 1443

12
 3.4. Right to livelihood of farmers is affected

The impugned Act transgresses the right to livelihood of the farmers and persons engaged
in beef business under Article 21. Our country being an agrarian economy, rearing of
cattle is one of the vital occupations of a farmer and they sell it only when the cattle
become old and are incapable of producing milk. The court held that “the right to life
guaranteed by Article 21 includes the right to livelihood”.86

The poor farmers will be unable to maintain the old cattle that are actually fit for slaughter.
They would not be able to afford fodder, water and medicine for the aging cattle. The
court has held in Olga Tellis case87 that the right to livelihood is born out of the right to
life, as no person can live without the means of living.88

3.5. A negative impact on the Economy of Pammu

Pammu is set to lose status of world’s largest beef exporter due to this ban.89 Pammu is
projected to be the largest exporter of beef in the world90 in 2015 followed by Brazil and
Australia. It accounts for 23.5% of global beef exports. Buffalo meat exports have been
growing at an average of nearly 14% each year since 2011, and fetching Pammu as much
as $4.8 billion in 2014.91

As they age, the accumulating cattle population92 will pose a health hazard too. If not
properly disposed of the deceased animals can cause disease and contribute to higher
human morbidity and mortality.93

86
Board of trustees of the port of Bombay v. Dilipkumar R. Nandhkarni, AIR 1983 SC 109
87
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, (1985) 3 SCC 545, “If the right to
livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a
person of his right to life would be to deprive him of his means of livelihood to the point of abrogation”
88
The Government must consider the livelihood of lakhs of people who are employed in meat export as they
could be rendered jobless which will also result in a substantial loss of revenue to the Government.
89
Livestock and poultry, World markets and Trade, Foreign Agricultural Service, United States Department of
Agriculture, (October 2015), www.fas.usda.gov
90
Government of Pammu in its Directive has stressed export of meat and meat products as thrust area. Current
Foreign Trade Policy encourages export of meat. Ban has the potential to pull down Country’s annual GDP
growth rate by about 2 percent

91
http://www.thehindu.com/news/national/india-on-top-in-exporting-beef/article7519487.ece
92
A complete ban on the slaughter of cattle is bound to cause overpopulation of these animals, upkeep, putting
pressure on grasslands, leading to degradation of local farm lands, and altering the local environment. Further,
there are international concerns, since cattle overpopulation contributes to higher methane production due to the
unique bovine bodily constitution and digestive process.

13
 3.6. Right to Life embraces Right to food and health in its realm.

Pammu is a diverse country with innumerable cultural and social differences. There is
tremendous variation in food habits across the country. According to data released by
NSSO,94rural households consuming beef increased from 3.9% to 4% between 2010 and
2012 and urban households from 4.3% to 5%. As many as 80 million citizens in consume
beef, which includes buffalo meat.95Article 4796 impose an obligation on the State to raise
the level of nutrition and improve public health.

This Act is also in conflict with the National Food Security Act, 201397 which ensures
access to adequate quantity of quality food at affordable prices to people to live a life with
dignity. Beef is a cheap source of protein and fat for mainly those groups who already
have a high incidence of anaemia and malnutrition like women and children.98 Beef
sourced from buffalo or other bovine varieties is relatively cheap.

Thus, it is pleaded that the government cannot lay down laws as to what can be consumed
by its citizens. It is the liberty of the people to consume food of their choice and
interfering with this right is a clear violation of the Constitution.

93
For the small and marginal farmers, the burden of either burying or cremating 20 to 30 million animals per
year will be an expensive proposition.

94
National Sample Survey Organisation
95
Household consumption of various goods and services in India, National Sample Survey Organisation
(NSSO), a division of the Ministry of Statistics and Programme Implementation, Report No. 558 (68/1.0/2),
2011-2012, www. mospi.nic.in
96
Duty of the State to raise the level of nutrition and the standard of living and to improve public health The
State shall regard the raising of the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring
about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which
are injurious to health.
97
An Act to provide for food and nutritional security in human life cycle approach, by ensuring access to
adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters
connected therewith or incidental thereto.
98
U.S. Department of Agriculture, Agricultural Research Service, 2002. USDA Nutrient Database for Standard
Reference, (NDB No: 13012)

14
 PRAYER FOR RELIEF

Wherefore in the light of issues raised, arguments advanced and authorities cited above, it is
humbly prayed that this Hon’ble Court may be pleased to

1. To issue a writ of declaration declaring The Representation of People’s Act (Third

Amendment) Ordinance 2014 as void and unconstitutional.

2. To issue a writ of Certiorari to call for the records pursuant to the impugned telecom order
issued by the government and quash the same.

3. To issue a writ of Declaration declaring the Gauvansh Sanrakshan and Gausamvardhan Act
of 2015 as unconstitutional, null and void.

And pass any further Order or Orders in the circumstances of the present case which this
Hon’ble court may deem fit in the light of Equity, Justice and good conscience for which the
counsel may forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED ON BEHALF OF THE PETITIONER

Sd/-

COUNSEL FOR THE PETITIONER

xii