Professional Documents
Culture Documents
IN THE MATTER OF
V.
UNION OF PAMMU........RESPONDENT
TABLE OF CONTENTS
INDEX OF ABBREVIATIONSiii
INDEX OF AUTHORITIES.iv
STATEMENT OF JURISDICTION..ix
STATEMENTS OF FACTS.....x
STATEMENT OF ISSUES......xi
SUMMARY OF ARGUMENTS..xii
ARGUMENTS ADVANCED1
1. WHETHER THE REPRESENTATION OF PEOPLES 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.5
3. WHETHER GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS
CONSTITUTIONALLY VALID10
ii
TABLE OF ABBREVIATIONS
Paragraph Number
Paragraph Numbers
&
And
AIR
Anr.
DPSP
IT Act
IPC
No.
Number
Ors.
Others
RPA
p.
Page Number
pp.
Page Numbers
s.
Section
SC
Supreme Court
SCC
ss.
Sections
U/s.
Under Section
v.
Versus
Vol.
Volume
UDHR
WHO
FAO
U.N
United Nations
iii
INDEX OF AUTHORITIES
TABLE OF CASES
S.No
Cause title
Citation
1.
2.
3.
AIR 1979 SC 65
4.
5.
6.
7.
8.
Jamat
9.
Narendra Kumar and Ors. v. The Union of India and (1960) 2 SCR 375
Ors.
10. Indian Handicrafts Emporium and Ors. v. Union of (2003) 7 SCC 589
India and Ors
11. O.K. Ghosh v. E.X. Joseph
12. Madhya Bharat Cotton Association Ltd. v. Union of AIR 1954 SC 634
India (UOI) and Anr.
13. State of West Bengal and Ors. v. Ashutosh Lahiri
(2013) 12 SCC 73
(1877) 94 US 113
(1949) 338 US 25
(1965) 1 SCR 65
34. Gurudevdatta
VKSSS
Maryadit
v.
State
Maharashtra
35. State of Punjab v. Satya Pal Dang
36. Praveen Kumar fruit Co. v. Hyderabad Agricultural 1997 AIHC 2644
Market Committee
37. Lindsley v. Natural Carbonic Gas Co.
(1910) 220 US 61
(2002) 4 SCC 34
AIR 1952 SC 64
Constituency
46. Jamuna Prasad Mukhariya v. Lachi Ram
BOOKS REFERRED
1.
EDITION
3.
H.M.
SEERVAI,
CONSTITUTION
LAW
OF
INDIA,
UNIVERSAL
M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2014, 7TH
EDITION, VOLUME 1
9.
vi
STATUTES REFERRED
CONSTITUTION OF INDIA
JOURNALS REFERRED
WEBSITES REFFERED
www.lexisnexis.co.in
www.indiakanoon.org
www.manupatra.com
www.westlawindia.com
www.heinonline.org
vii
STATEMENT OF JURISDICTION
The Respondent submits to the jurisdiction of this Honble Court in response to a Writ
Petition filed by the Petitioners 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 Peoples 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 Peoples 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 GausamvardhanAct, 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
ORDINANCE, 2014
OF
ISSUE 2
WHETHER
THE
TELECOM ORDER
ISSUE 3
SUMMARY OF ARGUMENTS
ISSUE 1
THE
2014
IS NOT
ARBITRARY IN NATURE AND IT DOES NOT AFFECT THE RIGHT OF MR.MOOTKAR RITVICK
ROSHAN TO CONTEST THE ELECTIONS.
It is humbly submitted that the ordinance is not violative of any provisions under Part III of
the Constitution. The Ordinance was promulgated by the President in exercise of powers
conferred under Art 123 of the Constitution. The present ordinance does not violate Art 14
of the Constitution as it is based on intelligible differentia and it can attract the inequality
clause only if it is actually and palpably unreasonable and arbitrary.
ISSUE 2
THE TELECOM ORDER TARGETING WEBSITES PROMOTING REVENGE PORN IS VALID.
It is humbly submitted that the telecom Order targeting websites promoting revenge porn
does not violate the fundamental rights guaranteed to the citizens as it is not absolute and
subject to reasonable restrictions. Revenge porn clearly falls under the ambit of obscenity
which is punishable under the Information Technology Act and the Indian Penal Code. The
Indecent Representation of Women (Prohibition) Act also prohibits any form of
representation of women in an offensive way.
ISSUE 3
THE GAUVANSHSANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS CONSTITUTIONALLY
VALID.
It is humbly submitted that the Gauvansh Sanrakshan and Gausamvardhan Act of 2015 is
constitutionally valid and in consonance with Art 48 of the Constitution, harmoniously
construed it with the fundamental rights. A Constitutional bench of the Supreme Court in the
case of State of Gujarat v. Mirzapur Moti Kureshi KassabJammat and Ors, upheld a total
ban on the slaughter of cows, calves, bulls, bullocks. Therefore, the Act imposing criminal
sanction on slaughter of cows, bull and bullocks is valid and constitutional.
xi
ARGUMENTS ADVANCED
I. THE REPRESENTATION OF PEOPLES ACT (THIRD AMENDMENT) ORDINANCE, 2014 IS NOT
ARBITRARY IN NATURE AND IT DOES NOT AFFECT THE RIGHT OF MR.MOOTKAR RITVICK
ROSHAN TO CONTEST THE ELECTIONS.
It is humbly submitted that the writ petition filed by the Petitioner is totally misconceived
and devoid of any merits and is liable to be dismissed in limine. The Representation of
Peoples Act (Third Amendment) Ordinance, 2014 (hereinafter referred as RPA) is
constitutionally valid and does not affect the fundamental rights of the petitioners in the
instant case.
1.1.
The Ordinance was promulgated by the President in exercise of powers conferred under
Article 1231 of the Constitution. The ordinance can be promulgated when;
i)
ii)
The Court cannot question the propriety of the Presidents satisfaction.6 The reason is that
the satisfaction under Article 123(1) is not the personal satisfaction of the President, but,
by reason of Article 74, a satisfaction arrived at on the advice of the Council of
1
The RPA ordinance is in consonance with the Constitutional provisions and does not violate
Article 14 as it is based on intelligible differentia. It can attract the inequality clause only if
it is actually and palpably unreasonable11 and arbitrary.12 A classification having some
reasonable basis, does not offend the provision merely because it is not made with
mathematical nicety or, in practice, it results in inequality.13
One of the objects of the RPA is to provide for the qualification and disqualification of
membership for both the Houses in Parliament. Further Article 84(c)14 gives indirect effect
to the provisions of RPA. When a law is challenged as violative of Article 14 it is necessary
for the Court to first ascertain the policy underlying the statute and the object intended to be
achieved by it.15
The vision of the State is always to promote the welfare of the people. It must be presumed
that the legislature understands and correctly appreciates the need of its own people.16 It has
to be proved that there was not only differential treatment 17 but also the person had been
treated differently from other persons similarly placed without any rational basis.18
1.4.
Article 4519stresses on the duty of the State to make effective provisions for securing right to
education20 which has also attained the status of a fundamental right by virtue of Article
21A. The Right of Children to Free and Compulsory Education Act, 2009 has its roots in
Article 21A.
In Kuldip Nayar v. Union of India &Ors,21 the Apex Court quoted the observations22 of the
Drafting Committee of Constitution which showed clearly that it was in favour of
prescription of educational qualifications for membership to Parliament.
It is the duty of the State to ensure increase in literacy rates and it is in furtherance of this
objective that educational qualifications has been stipulated as an eligibility criteria to
contest in parliamentary elections. In determining the scope and ambit of fundamental rights,
the Court may not entirely ignore the Directive Principles of State Policy (hereinafter
referred as DPSP), but should adopt the principle of harmonious construction and should
attempt to give effect to both as much as possible.23
16
Ashuthosh Gupta v. State of Rajasthan, (2002) 4 SCC 34,The rationale of presumption in favour of
legislation is that legislature is the judge of the local conditions and circumstances and special needs of
various classes of persons.
17
To prove an instance of inequality, a plea of differential treatment will not suffice.
18
Prabhudas Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044
19
Part IV of the Pammu Constitution
20
The Right to education was recognized as an implicit fundamental right in Mohini jain v. State of
Karnataka, AIR 1992 SC 1858 and Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178
21
Kuldip Nayar v. Union Of India & Ors, AIR 2006 SC 3127
22
There is, moreover, a strong feeling in certain quarters that a provision prescribing or permitting the
prescription of educational and other qualifications for membership both of Parliament and of the State
Legislatures should be included in the Draft. To formulate precise and adequate standards of this kind will
require time. Further, if any such qualifications are laid down in the Constitution itself, it would be difficult
to alter them if circumstances so require. The best course would, therefore, be to insert an enabling
provision in the Constitution and leave it to the appropriate legislature to define the necessary standards
later. Whatever qualifications may be prescribed, one of them would certainly have to be the citizenship of
India."
23
The DPSP, though not justiciable in a Court of law imposes an obligation on the State to
fulfil its duties towards the citizens and prescription of educational qualifications is one such
step to achieve its goals.24
1.5.
24
Kesavananda Bharthi v. State of Kerala,(1973) Supp 1 SCR, The fundamental rights and directive
principles contributes the conscience of the Constitution.
25
N.P.Ponnuswami v. Returning officer, Namakkal Constituency, AIR 1952 SC 64
26
Jyoti Basu v. Debi Ghosal ,AIR 1982 SC 983
27
P.Nallathampy v. B.L. Sankar, AIR 1984 SC 135
28
Jamuna Prasad Mukhariya v. Lachi Ram, AIR 1954 SC 686
29
Javeed v. State of Haryana, AIR 2003 SC 3057
30
In Jamuna Prasad Mukhariya v. Lachhi Ram, (1955) 1 SCR 608, the Court held, The right to stand as a
candidate and contest an election is not a common law right. It is a special right created by statute and can
only be exercised on the conditions laid down by the statue. The Fundamental Rights Chapter has no
bearing on a right like this created by statute
31
Raju. V.B v. Chief Electoral officer, Gujarat, AIR 1976 Guj66
32
Act,37 under which the Centre can exercise its power to issue directions to block an internet
site, is constitutionally valid.38
Section 66E provides punishment for violation of privacy39 and Sec. 67A provides for the
offence of publishing material which contains sexually explicit act or conduct.40
The Government could either pass order to block websites pursuant to a court order or if it is
satisfied that there arises a necessity in the interest of defence, friendly relations with foreign
states or public order or for preventing incitement to the commission of any cognizable
offence relating to above
2.3. Revenge Pornography and its bearing on society.
Revenge pornography is posting of sexually explicit content without consent of the
individuals involved, with intention to defame or harass.41 The impact of revenge porn is
severe and the immediate effect is the social stigmatization of the victim by blaming them
for the pictures and character assassination. This may lead to depression, social alienation
and in some extreme cases suicide attempts by those who cannot handle the pressure of
dealing with such targeted vengeance.
37
Power to issue directions for blocking for public access of any information through
any computer resource.
(1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied
that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defence of
India, security of the State, friendly relations with foreign states or public order or for preventing incitement
to the commission of any cognizable offence relating to above, it may subject to the provisions of subsections (2) for reasons to be recorded in writing, by order direct any agency of the Government or
intermediary to block access by the public or cause to be blocked for access by public any information
generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be
carried out shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be
punished with an imprisonment for a term which may extend to seven years and also be liable to fine.
38
A summary of the judgement- 1.Blocking can only be resorted to where the Central Government is
satisfied that it is necessary so to do. 2. Such necessity is relatable only to some of the subjects set out in
Article 19(2). 3. Reasons have to be recorded in writing in such blocking order so that they may be assailed
in a writ petition.
39
Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any
person without his or her consent, under circumstances violating the privacy of that person, shall be
punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees,
or with both.
40
Carries a punishment of imprisonment for a term that may extend to five years with fine up to ten lakhs.
41
A work is obscene if the average person applying contemporary community standards finds
that the work taken as a whole, appeals to prurient interest, if the work depicts or describes
in a patently offensive manner any sexual conduct.42
2.4. Revenge Pornography falls within the ambit of Obscenity
Obscene is any act or words or representations that shock public ideas of sexual purity or
modesty.43 It is offensive to chastity or modesty or expressing unchaste and lustful ideas,
impure or lewd.44
Obscenity means representations dealing with sexual matters in an offensive way while
pornography means writing or pictures intended to stimulate erotic feelings by portraying
sexual activity.45 Freedom of speech and expressions to every citizen is not absolute if such
speech and expression is immensely gross and violates the standards of morality.46The IT
Act provides for taking action against the perpetrator of any kind of online revenge porn.
2.5.Violation of Privacy of Revenge Porn victims
The IT Act47 provides punishment to whoever knowingly captures, publishes or transmits
the image of a private area of a person under Sec.66E.48 Provisions of this section
specifically deal with privacy of a person.49
For an offence under Section 66E, the accused intentionally or knowingly should capture,
publish or transmit the image of a private area of any person without his or her consent50
thus violating the privacy of that person.51
Justice Rajendra Babu, Freedom of Speech New perspectives , (2000)2 LW (JS) 97 (2)
Taxmans law dictionary ,The test for obscenity is whether the words would tend to defame the morals of
persons who would see the publication of suggesting lewd thoughts and exciting sensual desires.
44
State v. Thakur Prasad, AIR 1959 All 49
45
Justice Thakker C.K, Law lexicon.
46
Ajay Goswami v. Union of India, (2007) 1 SCC 143
47
2008 Amendment.
48
Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any
person without his or her consent, under circumstances violating the privacy of that person, shall be
punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees,
or with both.
42
43
Explanation For the purposes of section 66E e) under circumstances violating privacy means
circumstances in which a person can have a reasonable expectation that (i) he or she could disrobe in
privacy, without being concerned that an image of his private area was being captured; or (ii) any part of
his or her private area would not be visible to the public, regardless of whether that person is in a public or
private place.
49
50
State v. Lalit Chauhan, Section 66E was attracted, when an accused administered some intoxicating
substance in the drink of the victim with intent to cause hurt by taking nude pictures of her and made video
film of the victim without her consent, violating her privacy.
51
Lakshmi Prathapan v. State of Kerala,
52
Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632
53
Relying upon United States Supreme Court decision in Griswold v. Connecticut,381 U.S. 479 (1965)and
Roe v. Wade, 410 U.S. 113 (1973); Supreme Court in Kharak Singh v. State of U.P &Ors.,1964 SCR (1)332
54
Soma Rama Chandram v.The State Of Andhra Pradesh, 2013(3) RCR (Civil) 707
55
Ibid
56
Sharda v. Dharmpal, AIR 2003 SC 3450
57
Rohit Shekhar v. Shri Narayan Dutt Tiwari & Anr, 2011(4) RCR (Crl.) 307
58
Munn v. Illinois, (1877) 94 US 113; Wolf V.Colorado, (1949) 338 US 25
59
Supra note 51
60
Gobind v. State of Madhya Pradesh & Anr,(1975) 2 SCC 148
61
In Pammu, the very first reported case of teen revenge in the cyber space came out as early as in 2001, when
a 16 year old Delhi school boy created a porn website and posted porn images of girls and teachers with lewd
remarks. Reports suggest that he did as revenge to these girls who taunted him. He was arrested under S 67 of
IT Act for charges of Obscenity in Cyber Space.
62
67
Revenge pornography is a breach of privacy and a form of violence against women in cyber
space70. Failure to protect women from revenge porn is a failure to protect their human rights
on the internet. The right to privacy is also given extreme importance internationally by
various Covenants. Article 8 of The European Convention on Human Rights addresses
problems on privacy.71
Article 17 of ICCPR72 and Article 12 of the UDHR73enshrines the Right to privacy. Therefore,
the right to privacy would be subject to such action as may be lawfully taken for the
prevention of crime or protection of health or rights and freedoms of others.
Many Countries have criminalized revenge porn, or are using existing laws to prosecute the
incriminators of revenge porn. New Jerseys invasion of Privacy law74 has been considered a
model by advocates of criminalizing revenge porn. Liberal States themselves have laws to
curb revenge porn websites. Therefore, this ban is a necessity in Pammu and the contention
of the petitioner that there is a violation of fundamental right is frivolous and baseless.
3. WHETHER
GAUVANSH
ACT
OF
2015
IS
CONSTITUTIONALLY VALID.
The Act of 2015 does not violate any of the provisions under the Pammu Constitution. It
was enacted to fulfil the Directive principles as framed in Part IV of the Constitution. In
2005, the Constitutional bench of the Honble Supreme Court in the case of State Of
Gujarat v. Mirzapur Moti Kureshi Kassab Jammat and Ors75, declared the provisions of
The Bombay Animal Preservation (Gujarat) Amendment Act, 1994as constitutionally valid
70
Recommendation (2002) 5 of the Committee of Ministers of the Council of Europe to member states on
the protection of women against violence, The states have an obligation to exercise due diligence to
prevent, investigate and punish acts of violence, whether those acts are perpetrated by the state or private
persons, and provide protection to victims....
71
(1). "Everyone has the right to respect for his private and family life, his home and his correspondence.,
(2) There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in democratic society in the interests of national security, public
safety or the economic well being of the country, for the prevention of disorder or crime, for the protection
of health or morals or for the protection of the rights and freedoms of others.
72
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.
73
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such
interference or attacks.
74
Enacted in 2003 before revenge porn came to national attention.
It prohibits selling, providing, publishing, distributing, or otherwise disseminating nude or sexual photos of
another person without that persons permission.
75
State Of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat and Ors, AIR 2006 SC 212
10
and also upheld the total ban on slaughter of cows, calves, bulls and bullocks irrespective of
the age thus delivering the landmark judgement.
76
11
3.2.Fundamental duty under Art51A(g) imposes an obligationon the State and its Citizens
Art 51A(g)82 creates a duty for all citizens of Pammu to have compassion for animals.83 It
creates a mandatory duty on every citizen including the government to show compassion
towards animals. Fundamental duties are at par and have the same force as that of Directive
Principles of state policy, and if State prohibits any act or conduct in violation of any of its
duties, that would be upheld as a reasonable restriction.84
In AIIMS Students' Union v. AIIMS and Ors,85The Apex Court held that,
State, in a sense, is all citizens placed together and, therefore, though Article 51A does not
expressly cast any fundamental duty on the State, the fact remains that the duty of every
citizen of India is, collectively speaking, the duty of the State.
3.3. The Act benefits aged cattle
Pammus total bovine population86 is 299.9 million numbers in 2012 which shows a decline
of 1.57% over previous census. The number of milch animals has increased from 111.09
million to 118.59 million, an increase of 6.75%. The number of cows and buffaloes has
increased from 77.04 million to 80.52 million showing a growth of 4.51%.87 There is an
annual milk yield of 157 kg and 504 kg from cows and buffaloes respectively.88 Between
2013 and 2014, there has 137.7 million tonnes of milk productivity in Pammu.89
The cows are slaughtered because the owner of the cow finds it difficult to maintain, after it
stops yielding milk. Apart from the milk, the cow dung as well as the urine of cow can be
processed to achieve viable output which is used to prepare Vermi-compost or any other
82
T.N. Godavarman Thirumalpad v. Union of India and Ors, AIR 1997 SC 1228
To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures
84
N.R.Nair v. Union of India, AIR 2000 Ker 340
85
AIIMS Students' Union v. AIIMS and Ors, (2002) 1 SCC 428
86
Bovine here includes Cattle, Buffalo, Mithun and Yak
87
19thLivestock census, 2012, All India Report, Ministry Of Agriculture Department Of Animal Husbandry,
Dairying And Fisheries, www.dahd.nic.in
88
The National Commission on Agriculture Report 1976, Department of Agriculture, Ministry of
Agriculture and Irrigation, New Delhi
89
National Dairy Development Board statistics, Department of Animal Husbandry, Dairying & Fisheries,
Ministry of Agriculture, Government of India, www.nddb.org
83
12
form of bio manure and urine for preparing pest repellents and medical formulations. The
money collected by the sale of such products is sufficient for maintenance of cows.90
Cow progeny excreta scientifically recognised as a source of rich organic manure which is a
by-product in farming by bullocks and helps the soil by increasing its water holding
capacity. There are other advantages in the use of organic manures namely (a) steadiness in
yield over a period of time (b) benefit to the succeeding crops by their residual effects, and
(c) ability to withstand unfavourable weather conditions.91 This helps in improving the
quality of the earth and the environment.
In State Of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat and Ors,92 the Court
observed that
If one bullock is slaughtered for its meat, it can sustain the butchers trade for only a day.
For the next days trade another bullock is to be slaughtered. But if the bullock is not
slaughtered, about 5000-6000 dung cakes can be made out of its dung per year, and by sale
of such dung cake one person can be sustained for the whole year. If a bullock survives even
for five years after becoming otherwise useless it can provide employment to a person for
five years whereas to a butcher, a bullock can provide employment only for a day or two.
In this case the Supreme Court has set a precedent by upholding the total ban on slaughter of
cows, calves, bulls and bullocks.
3.4.The ban on Slaughter is a reasonable restriction
The Act does not infringe the rights of the Petitioner under Art. 25. As held in State of West
Bengal and Ors v. Ashutosh Lahiri,93
Optional religious sentiments cannot be covered under the ambit of Art 25(1).94
90
Report of the National Commission on Cattle (Rashtriya Govansh Ayog) July 2002 Department of
Animal Husbandry & Dairying Ministry of Agriculture Government of India
91
First five year plan, some problems of agricultural development, para 22, Planning Commission of India
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat and Ors, AIR 2006 SC 212
93
State of West Bengal and Ors. v. Ashutosh Lahiri, AIR 1995 SC 464
94
The Court noted that, sacrifice of any animal by Muslims for the religious purpose on Bakrid does not
include slaughtering of cow as the only way of carrying out that sacrifice. Slaughtering of cow on Bakrid is
neither essential to nor necessarily required as part of the religious ceremony. An optional religious
practice is not covered by Article 25(1). On the contrary, cow and its progeny, bull, bullocks and calves are
worshipped by Hindus on specified days during Diwali and other festivals like Makar Sankranti and
Gokulashtami. A good number of temples are to be found where the statue of 'Nandi' or 'Bull' is regularly
worshipped.
92
13
The Act is validated by the reasonable restrictions clause in Art 19(6).95The term
restriction96 in Articles 19(5) and 19(6) includes prohibition.97To determine the legality
of total prohibition the Court need to balance the direct impact on fundamental rights of the
citizens as against the DPSP.98 There must be a proximate nexus between the restrictions
imposed and the object sought to be achieved by the Act which will give rise to a strong
presumption in favour of constitutionality of the Act.99
3.5.The Act promotes Right to health as under Articles 21 and 47 of the Constitution
It is humbly submitted right to life under Art 21 includes right to health.100 Article 21 casts
an obligation on the State to safeguard the right to life of every person.101 Many research
papers have concluded the consumption of beef to give rise to serious health issues102 and it
is the duty of the State to raise the level of nutrition and to improve public health as laid
down in Art 47.103
95
Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular,
nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any
occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,
business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
96
In Madhya Bharat Cotton Association Ltd. v. Union of India and Anr, AIR 1954 SC 634, the phrase
restriction has two well settled propositions:
1.
2.
whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be
determined with regard to the facts and circumstances of each case
97
Narendra Kumar and Ors. v. The Union of India and Ors, (1960) 2 SCR 375
98
Indian Handicrafts Emporium and Ors. v. Union of India and Ors, (2003) 7 SCC 589
99
O.K. Ghosh v. E.X. Joseph, 1963 Supp. (1) SCR 789
100
CESC Ltd. v. Subhash Chandra Bose,1992 AIR SC 573
101
Parmanand Katra v. Union of India, AIR 1989 SC 2039
102
Effects of stress and injury on meat and by-product quality, in Guidelines for Humane Handling,
Transport and Slaughter of Livestock, Food and Agricultural Organisation(FAO), United Nations
Organisation
103
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
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Epidemiological studies show that red meat intake is associated with increased risks of
diabetes, cardiovascular disease and certain cancers.104 International Covenants have also
stressed on the obligation of the State to take care of its citizens. Article 25 of the Universal
Declaration of Human Rights,1051948 and the Preamble the World Health Organisation
Constitution106 states about the right to health of the people107.
Thus the averments made by the petitioner are completely baseless and it is submitted that
the Gauvansh Sanrakshan and Gausamvardhan Act of 2015 is intra vires the Constitution.
104
To make cows grow at an unnaturally fast rate, the cattle industry implants them with pellets full of
hormones. These artificial hormones can cause health problems in people who consume beef. Archives of
Internal Medicine (March 12, 2012)
105
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his
family.
106
It is one of the fundamental rights of every human being to enjoy the highest attainable standard of
health.
107
As to the trade of hides, skins and other allied things, it is not necessary that the animal must be slaughtered
to avail these things. The animal would die a natural death and in that case their hides, skins and other parts of
body would be available for trade and industrial activity. Therefore in the present case banning slaughter of
cow, bulls and bullocks is not a prohibition but only a restriction.
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