Documente Academic
Documente Profesional
Documente Cultură
VERSUS
UNION OF PAMMU
Respondent(s)
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS -
TABLE OF ABBREVIATIONS -
II
INDEX OF AUTHORITIES
III
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
XI
STATEMENT OF ISSUES
XIII
SUMMARY OF PLEADINGS
XIV
II. THE TELECOM ORDER ONLY TARGETING THE WEBSITES PROMPTING REVENGE
PORN IS VALID.
4
A. THE BAN ON SITES PROMOTING REVENGE PORN DOES NOT VIOLATE ART. 14. 4
B. THE BAN FALLS WITHIN THE REASONABLE RESTRICTIONS AS ENSHRINED IN ARTICLE
19(2) OF THE CONSTITUTION. 6
C. THE PROVISIONS OF THE INFORMATION TECHNOLOGY ACT, 2008 EMPOWER THE
GOVERNMENT TO BAN SUCH WEBSITES.
8
III. THE GAUVANSH SANRAKSHAN
CONSTITUTIONALLY VALID. A. THE IMPUGNED ACT
CONSTITUTION.
-
AND
GAUSAMVARDHAN ACT
-
FURTHERANCE
-
IS IN
OF
DPSP
-
2015
9
OF
PART IV
-
GIVEN IN
IS
OF THE
11
PRAYER
XV
STATEMENT OF JURISDICTION
TABLE OF ABBREVIATIONS
Section
Paragraph
A.I.R.
Anr.
Another
Art.
Article
cl.
Clause
Dist.
District
Ed.
Edition
Honble
Honourable
IT
Information Technology
MP
Member of Parliament
Ors.
Others
PCA
SBP
UOI
Union of India
v.
Versus
II
INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
CASES CITED:
CASE NAME
S. NO.
1.
2.
3.
4.
5.
PAGE
NO.
Akhil Bharat Gosewa Sangh v. State of A.P. and Ors., 2006 (2)
10
11
A.B.R. 556
Bennett Coleman & Co. Ltd. v. Union of India, A.I.R. 1973 S.C.
106
Bobby Art International v. Om Pal Singh Hoon, A.I.R. 1996 S.C.
1846
6.
7.
11
8.
9.
12
12
13.
14.
84
III
INDEX OF AUTHORITIES
16.
17.
18.
1,2
12
14
3240
19. Javed and Ors. v. State of Haryana, A.I.R. 2003 S.C. 3057
11
12
11
13
8
14
402
Papnasam Labour Union v. Madura Coats Ltd. and Anr., A.I.R.
30.
12,14
(1986) 3 S.C.C. 20
10
14
1,3
IV
INDEX OF AUTHORITIES
36. Ram Krishna Dalmia v. Justice Tendolkar, A.I.R. 1958 S.C. 538
38.
14
39. Sat pal & Co. v. Lt. Governor of Delhi, A.I.R. 1979 S.C. 1550
1,2
12
41.
State of Gujarat and Ors. v. Akhil Gujarat Pravasi and Ors., (2004)
14
5 S.C.C. 155
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., 10,13,14
42.
44. State of M.P. v. Bhopal Sugar Industries, A.I.R. 1964 S.C. 1179
12
46. State of Punjab v. Satya Pal Dang, A.I.R. 1969 S.C. 903
48.
State of Tamil Nadu and Ors. v. M/s. Sanjeetha Trading Co. and
Ors., (1993) 1 S.C.C. 236
49. State of Tamil Nadu v. L. Abu Kavier Bai, A.I.R. 1984 S.C. 326
T. Venkata Reddy v. State of Andhra Pradesh, A.I.R. 1985 S.C.
50.
51.
14
11
1,2
12
INDEX OF AUTHORITIES
BIBLIOGRAPHICAL INFORMATION
1.
2.
3.
4.
5.
6.
7.
8.
9.
ARTICLES REFERRED:
S. No.
1.
BIBLIOGRAPHICAL INFORMATION
Calvert, Clay. Revenge Porn and Freedom of Expression: Legislative
Pushback to an Online Weapon of Emotional and Reputational
Destruction. Ford Intell. Prop. Media & Ent. LJ 24 (2013):673 ; Franks,
Mary Anne Combating Non-Consensual Pornography: A Working
Paper, (working paper, University of Miami Law School, Coral Gables,
FL, September 18, 2013)
2.
VI
INDEX OF AUTHORITIES
3.
www.endrevengeporn.org/revenge-porn-infographic/
Halder, Debarati, and K. Jaishankar. Revenge Porn by Teens in United
4.
5.
available at http://satyameva-jayate.org/2012/02/08/cow-slaughter/
6.
7.
http://tilakmarg.com/opinion/constitution-validity-of-cow-slaughter-
ban-in-maharashtra-a-detailed-analysis/
Harish Damodaran, Heres why India is set to lose status of worlds largest
8.
beef
exporter (
16
available
at
http://indianexpress.com/article/explained/beefed-up-no-longer/
Krishnadas Rajagopal, Cant stop an adult from watching porn in his room,
9.
says
SC,
(16
October,
2010,
4:46
PM),
available
at
http://www.thehindu.com/news/national/cant-stop-an-adult-fromwatching-porn-in-his-room-says-sc/article7400690.ece
10.
11:45
PM),
available
at
http://www.elections.in/political-
corner/significance-of-article-14-of-indian-constitution/
BOOKS REFERRED:
VII
INDEX OF AUTHORITIES
Vol. VIII, Constituent Assembly Debates, Lok Sabha Secretariat, 5th Reprint
9 V.R. Manohar and W.W. Chitaley, The AIR Manual (Civil and Criminal), 5th
Edition.
10 V.R. Manohar and W.W. Chitaley, The AIR Manual (Civil and Criminal),
5th Edition.
VIII
INDEX OF AUTHORITIES
FOR THE
PROTECTION
FUNDAMENTAL FREEDOM.
2. UNIVERSAL DECLARATION OF HUMAN RIGHTS.
DATABASES REFERRED:
http://www.manupatra.com
http://www.westlawindia.com
http://www.lexisnexis.com
IX
OF
HUMAN RIGHTS
AND
STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
The counsels on the behalf of the respondent have endorsed their pleading in
response to the petition filed by the petitioners under the aegis of Article 321 of the
Constitution of Pammu. The counsels would humbly contest the constitutional
validity of the Ordinance, the Telecom Order and the Gauvansh Sanrakshan and
Gausamvardhan Act of 2015.
STATEMENT OF FACTS
STATEMENT OF FACTS
STATEMENT OF FACTS
from the general public on how to tackle the proliferation of such websites on
the internet.
H. After few months, the Telecom Ministry came out with a Telecom Order
advising the internet service providers and telecom operators to control free and
open access to around 900 porn websites.
I. The Telecom Minister Mr Sibbal said, There is no total ban. This was done in
the backdrop of some websites promoting revenge porn. The idea is also to
protect Pammus cultural fabric. The government said that it had acted on the
representations received from the public.
J. After the ban on revenge porn, the government passed Gauvansh Sanrakshan
and Gausamvardhan Bill, 2015 which criminalized slaughtering of cows, bulls
& bullocks; selling and consumption of beef.
K. Aggrieved by this, Mr Mootkar Ritwick Roshan filed a writ petition in the
Honble Supreme Court of Pammu that his right to contest elections has been
affected by the Ordinance. NGO Common Cause also filed two separate
petitions in the Honble Court against the ban on porn websites and
criminalization slaughtering of cows, bulls & bullocks; selling and consumption
of beef. NGO also intervened in the writ petition filed by Mr Roshan. The
Honble Supreme Court clubbed the matters as the plaintiffs and respondents
were same in all the three cases. The Honble Supreme Court of Pammu also
decided that the present petition is maintainable and it has the requisite
jurisdiction to hear the matter.
XII
STATEMENT OF ISSUES
STATEMENT OF ISSUES
The following issues are presented before the Honble Supreme Court of Pammu:-
IS
OF
OF
XIII
SUMMARY OF ISSUES
SUMMARY OF ISSUES
I.
It is most respectfully submitted before this Honble Supreme Court that the
Representation of Peoples Act (Third Amendment) Ordinance, 2015 is not
arbitrary in nature and does not affect the right of the petitioner to contest
elections. The Ordinance is valid as the President acted in his legislative
capacity and was, on the advice of Council of Ministers, satisfied with the
existence of circumstances which rendered it necessary to bring such law. The
Ordinance is also not violating Article 14 as there is a rational nexus between
the restriction imposed and object sought to be achieved.
II.
It is most humbly submitted before this Honble Supreme Court that the
Telecom Order controlling the free and open access to around 900 websites is a
valid order. Since revenge porn is uploaded without the permission of victim, it
affects their right to privacy. The order controlling the access of 900 revenge
porn websites, therefore, cannot be regarded as an arbitrary act. Further, the
Telecom Order targets the sites promoting revenge porn and does not impose a
total ban on all the pornographic websites. It is merely a restriction and not
extinction of right to freedom of speech and expression. Hence, the impugned
act is not violative of Article 19(1) (a). Further, the telecom order is valid since
the provisions of the IT act, 2008 empowers the State to come up with such
orders.
III.
It is most humbly submitted before the Honble Court that the Gauvansh
Sanrakshan and Gausamvardhan Act, 2015 is constitutionally valid. It is in
furtherance to the implementation of the DPSP under Article 48 and Article 48A which are fundamental in the governance of the Country. Further, it is not
violative of fundamental rights of the Citizens under Article 14 and Article
19(1) (g) of the Constitution. This is so, because the impugned act has made a
reasonable classification among butchers who slaughter different cattle and the
classification has a strong nexus with the object sought to be achieved. The
restriction imposed on the business of butchers is also reasonable as it is not a
total prohibition on their activities and is in the interest of public at large.
XIV
I.
1.
It is most respectfully submitted before this Honble Court that the Ordinance
which was brought up by the President under Article 1232 is valid because he is
legislatively competent to do so3. The argument put forward to support the
above contention is twofold: firstly, the Ordinance is valid and not ultra vires
the Constitution [A] and secondly, it is not in violation of Article 144[B].
A.
THE ORDINANCE
IS
VALID
AND
NOT
ULTRA
VIRES
TO
THE
CONSTITUTION.
2.
3.
The mere fact that the Parliament was prorogued only few days before making
the Ordinance would not be an evidence of mala fide11. The Ordinance is
completely valid as it doesnt transgress the constitutional limits of the power12.
Moreover, it is not a colourable use of power as the President was competent to
bring such law that, he feels, is in the national interest.13 An Ordinance can make
a validating law, just as Parliament could do.14 Such an Ordinance cannot as
such be condemned as colourable legislation.15 The reason is that by virtue of
words shall have the same force and effect as an Act in Article 123, whatever
could be achieved by regular legislation by the legislature, can be achieved by
an Ordinance.16
4.
The Ordinance that has been promulgated has to be laid before both the Houses
of Parliament as soon as the parliament comes back in session
17
. If the
legislature finds that this Ordinance is not required, then it will automatically
get lapsed. But if the Honble Supreme Court strikes down the Ordinance now,
then there would be a conflict between the Legislature and the Judiciary if the
Legislature comes up with an act in this regard later. It is submitted that it should
be left to the representatives of people to decide on the matter. If an Act is made
in this regard and afterwards, if it is found to be arbitrary, then its constitutional
validity can be challenged before this Honble Supreme Court. It is submitted
that Rule 71 (1)18 of the House of People emphasizes on the above said
suggestion.
5.
It is also argued that since the entire session of the Parliament was washed out,
there was a necessity to promulgate the Ordinance. The action of the President
is justified and cannot be termed as misuse of power. The Presidents power is
hedged in by limitations and conditions and although the power may appear to
11
State of Punjab v. Satya Pal Dang, A.I.R. 1969 S.C. 903, 14 (Chief Justice M. Hidyatullah);
Gurudevdatta VKSSS Maryadit v. State of Maharashtra, A.I.R. 2001 S.C. 1980, 18 (Justice U.C.
Banerjee).
12
T. Venkata Reddy v. State of Andhra Pradesh, A.I.R. 1985 S.C. 724, 14 (Chief Justice Y.V.
Chandrachud).
13
D.C. Wadhwa v. State of Bihar, A.I.R. 1987 S.C. 579, (Justice P.N. Bhagwati) .
14
State of Orissa v. Bhupendra, A.I.R. 1962 S.C. 945, 21 (Justice P.B. Gajendragadkar).
15
Sat Pal v. Governor, A.I.R. 1979 S.C. 1550, 16 (Justice D.A. Desai).
16
Supra note 14/.
17
Pammu Const. art 123, cl. 2, sub cl. a.
18
HOUSE OF PEOPLE RULES, Rule 71, cl. 1.
Therefore, the counsel humbly submits that the Honble Supreme Court should
not strike down the act as of now, and should wait for the Legislature to act
upon it first as soon as the parliament is back in session. The counsel submits
that it is a premature litigation and requests the court to let it take its due course
of time.
B.
7.
It is submitted that the Ordinance is not infringing upon the Article 14 of the
Petitioner. 20 Right to contest elections is a statutory right, and not a fundamental
right21, given by the Representation of Peoples Act, 1951. The right to make
law to add any qualification is given to the state by the Constitution22.
8.
9.
19
R.K. Garg v. Union of India, AIR 1981 SC 2138, 6 (Justice P.N. Bhagwati).
PAMMU CONST. art. 14.
21
Infra note 24, 6 (Justice R.C. Lahoti).
22
PAMMU CONST. art. 84, cl. c.
23
UNIVERSAL DECLARATION OF HUMAN RIGHTS, art. 26.
24
Javed and Ors. v. State of Haryana, A.I.R. 2003 S.C. 3057, 38 (Justice R.C. Lahoti); Dulari Devi &
Ors. v. State of Rajasthan and Ors. A.I.R. 2015 Raj. 84, 23 (Chief Justice Sunil Ambwani).
20
10.
During the Constituent Assembly Debates of India, Dr. Rajendra Prasad, along
with Dr. B.R. Ambedkar emphasized on having educational qualification for
MPs. They believed that likewise Judiciary and Executive, Legislature should
also have such qualifications.25
11.
12.
II.
ONLY
TARGETING
THE
WEBSITES
PROMOTING
It is submitted before the Honble Supreme Court that the Telecom Order
controlling free and open access to 900 websites promoting revenge porn is
valid. The argument put forward to support the above contention is three fold:
firstly, the ban on sites promoting revenge porn does not violate Article 14
[A], secondly, it falls within the reasonable restriction as enshrined in Article
19(2) [B] and thirdly, the provisions of the IT Act, 2008 empower the
government to ban such websites. [C]
A.
14.
Article 1427 commands the State not to deny to any person the equality before
law and the equal protection of laws. However, there is no absolute equality
among the human beings and reasonable classification can be done.28 The
25
It is submitted that the classification between revenge porn and other porn is
based on intelligible differentia. Revenge porn, typically, consists of sexually
explicit photos or videos that are uploaded on the internet by the intimate
partners, without the permission of the individuals depicted in them which may
sometimes be accompanied with identifying information such as names, address
and other details of the victim30. A majority of the victims of revenge porn are
girls and women31 who are subjected to emotional stress and anxiety32.
16.
Traditional porn is different from revenge porn since it is created with the help
of professional models who perform for the sexual visual gratification of the
viewers. It is created with the motive of monetary benefit both for the creator
and the distributor33. Hence, an element of consent is present in traditional porn.
17.
In R. Rajagopal v. State of Tamil Nadu34, Supreme Court held that none can
publish anything which affects his privacy without his consent whether truthful
or otherwise. Revenge porn affects the right to privacy35 of victim since it is
uploaded without the permission of the victim. They are in bad taste, disrespect
women and are against the cultural tenets of Pammu. The sites promoting
revenge porn are more dangerous as compared to the sites which show other
pornographic videos and for the purpose of public safety, the classification of
29
Ram Krishna Dalmia v. Justice Tendolkar, A.I.R. 1958 S.C. 538, 16 (Chief Justice Sudhi Ranjan
Das) .
30
Calvert, Clay. Revenge Porn and Freedom of Expression: Legislative Pushback to an Online Weapon
of Emotional and Reputational Destruction. Ford Intell. Prop. Media & Ent. LJ 24 (2013):673 ; Franks,
Mary Anne Combating Non-Consensual Pornography: A Working Paper, (working paper,
University of Miami Law School, Coral Gables, FL, September 18, 2013).
31
Power in Numbers, (8th October, 2015, 5:36 PM), www.endrevengeporn.org/revenge-porninfographic/.
32
Citron, Danielle Keats and Franks, Mary Anne, Criminalizing Revenge Porn (May 19, 2014). Wake
Forest Law Review, Vol. 49, 2014, p. 345; U of Maryland Legal Studies Research Paper No. 2014-1.
33
Halder, Debarati, and K. Jaishankar. Revenge Porn by Teens in United States and India: A SocioLegal Analysis. International Annals of Criminology, 51.1-2(2013):85-111.
34
R. Rajagopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632, 28 (Justice B.P. Jeevan Reddy).
35
PAMMU CONST. art. 21 : Protection of life and personal liberty.
an area into dangerously disturbed area and other area is based on intelligible
differentia.36
18.
The Telecom Order has imposed a ban on these sites on the basis of the
representations received by it.
37
public in order to comply with Rule 16 of the IT Rules, 2009 38 which states that
strict confidentiality should be maintained. The State has not imposed a blanket
ban since other pornographic websites are still in function. The action taken by
the State cannot be regarded as an arbitrary action since the ban imposed is just,
fair and reasonable. Therefore, the contention of the Petitioners that the Order
violates Article 14, stands negated.
B.
THE
REASONABLE RESTRICTIONS
AS
Article 19(1) (a)39 gives its citizen the freedom to speech and expression,
however, Article 19(2) allows the State to impose reasonable restriction on the
exercise of this freedom in the interest of public decency and morality40. Article
10(1)41 of ECHR provides that everybody has the right to freedom of speech
and expression. However, the exercise of such rights can be restricted for the
protection of health or morals or for the protection of the reputation or the rights
of others.42
20.
It is most humbly submitted that the telecom order controlling the open and free
access to sites promoting revenge porn is valid since revenge porn is obscene
and is offensive to public decency and morality. Therefore, banning such sites
comes within the reasonable restriction as enshrined in clause (2) of Article 19.
i.
36
Gopi Chand v. Delhi Administration, A.I.R. 1959 S.C. 609, 11 (Justice P.B. Gajendragadkar).
Moot Proposition, 5.
38
INFORMATION TECHNOLOGY (PROCEDURE AND SAFEGUARDS FOR BLOCKING FOR ACCESS OF
INFORMATION BY PUBLIC) RULES, 2009 Rule 16.
39
PAMMU CONST. art.19, cl. 1, sub cl. (a): freedom of speech and expression.
40
K.Venu v. Director-General of Police. A.I.R. 1990 Ker.344, 3 (Justice Chettur Sankaran Nair).
41
EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHT AND FUNDAMENTAL FREEDOM,
Article 10 (1).
42
EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHT AND FUNDAMENTAL FREEDOM,
Article 10 (2).
37
21.
22.
23.
Revenge porn consists of sexually explicit videos and pictures which are
uploaded by the intimate partners without the consent of the person so featured
in the video or the photograph. Such videos are gross, appeal to the prurient
interest of the people and tend to corrupt the mind of the viewers. They are
uploaded with the sole purpose of depicting sexual activities of a person in an
offensive way and lack any literary, artistic, political or scientific value.
Revenge porn, therefore, can be regarded as obscene.
ii.
24.
43
Knuller v. DPP, (1972) 2 All. E.R. 898; R v. Stanley, (1969) 1 All. E.R. 1035.
Brir Gopal v State of MP, A.I.R. 1979 M.P. 173, 15 (Chief Justice G.P. Singh).
45
Ranjit vs Maharashtra, A.I.R. 1965 S.C. 88 (885), 22 (Justice M. Hidyatullah).
46
Bobby Art International v. Om Pal Singh Hoon, A.I.R. 1996 S.C. 1846, 22 (Justice S.P. Bharuda);
Rajani v. State, A.I.R. 1958 All. 360.
47
Director General, Directorate of Doordarshan v. Anand Patwardhan, A.I.R. 2006 S.C. 3346, 14
(Justice A.R. Lakshmanan).
48
THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986, 2(c).
44
offence under Section 354 C49 of the Pammu Penal Code. Section 66 E50 of the
IT Act, 2008 prescribes punishment for infringing the privacy of a person by
publishing or transmitting any image of any private area of any person.
25.
Pammu, being a country with rich cultural heritage, has always taken every
possible step to protect and preserve the dignity of women. In Chandra Raja
Kumari v. Police Commissioner, Hyderabad
51
Andhra Pradesh held that any act which tends to offend the dignity of a woman
or deal with her indecently in the circumstances amounting to indecent
representation in any form, is bound to offend Article 21 as right to live includes
right to live with dignity and decency. Transmission of revenge porn affects the
fundamental right of the women to live with dignity as enshrined in Article 21
of the Constitution. In New York vs. Ferber52 , the Court held that it is necessary
to shut down the distribution network of child pornography to reduce the
sexual exploitation of children. Therefore, the present ban on the sites
promoting revenge porn has been imposed in order to take away the platform
through which any harm can be caused to the dignity of the woman.
iii.
26.
The telecom order advising the ISPs to control the free and open access to 900
sites is merely a regulation and not an extinction of the freedom to access
the pornographic websites.
49
C.
THE PROVISIONS
OF THE
The telecom order banning the sites promoting revenge porn has been enacted
by the virtue of Section 79(3) (b) of the IT Act, 2008. Section 7955 exempts the
ISPs from the culpability of any offensive content uploaded by a third party.
However, Section 79(3) (b)56 places an obligation upon the ISPs to act with due
diligence and in accordance with the orders given by the court or the
government. The IT Rules, 201157 mandates that the ISPs to duly inform the
users of the computer resources not to upload, promote, publish or display any
information which is grossly harmful, blasphemous defamatory, obscene,
pornographic, invasive of another's privacy, hateful, or racially, ethnically
objectionable in nature.
28.
III.
AND
IS
CONSTITUTIONALLY VALID.
29.
The counsel most humbly submits before this Honble Court that the Gauvansh
Sanrakshan and Gausamvardhan Act, 2015 is constitutionally valid as it is not
in conflict with any of the provisions of constitution, rather it is in furtherance
to the implementation of the provisions of the Constitution. The argument put
forth to support this contention is twofold:
implemented for the advancement of DPSP [A] and secondly, it is not violative
of fundament right of the citizens given in Part III of the Constitution.[B]
55
A.
30.
It is submitted that the Government, enacting this law has acted in bona fide
manner to ban the slaughter of cows, bulls and bullocks for the preservation,
protection and improvement of agricultural and animal husbandry. This
impugned Act is in furtherance to the implementation of DPSP under Article
4858 and 48-A59.
31.
Article 48 expressly states that the state shall take steps for the improving and
preserving the breeds and prohibiting the slaughter of cows and calves and other
milch and draught animals. Art. 48-A provides for the protection and
improvement of environment and safeguarding of forests and wild life. Both
these articles are inter-related as they aim towards protecting the environment
as a whole. The Honble Supreme Court of India, in State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat60, emphasized on several uses that the
cow and her progeny provide towards the environment.
32.
The cow and her progeny sustain the health of the nation by nourishing them
with milk, which is a crucial component in a scientifically balanced diet. The
bullocks are indispensable for our agriculture for the supply power than any
other animal. The working bullocks are often useful in ploughing the fields,
drawl of water from the wells and also very useful for drawing carts for
transporting grains and fodders by farmers. The dung of the animal is cheaper
than the artificial manures and extremely useful for production of bio-gas.61
Therefore, the protection under Article 48 also extends to cattle which at one
time were milch or draught but which have ceased to be such. 62 It is submitted
that imposing a total ban on the slaughter of even old and cattle unfit for
agriculture is valid and comes within the ambit of Article 48.
58
10
33.
34.
35.
Right to get food, shelter is also guaranteed under Sections 3 and 11 of the PCA
Act73 and the Rules framed thereunder, especially when they are domesticated.
Right to dignity and fair treatment is, therefore, not confined to human beings
63
Chandra Bhawan Boarding and Lodging Bangalore v. State of Mysore, (1969) 3 S.C.C. 84, 13
(Justice K.S. Hegde).
64
Minerval Mills Ltd. V. Union of India, (1980) 2 S.C.C. 591, 62 (Chief Justice Y.V. Chandrachud).
65
Id.
66
Supra note 63, 13 (Justice K.S. Hegde).
67
State of Tamil Nadu v. L. Abu Kavier Bai, A.I.R. 1984 S.C. 326, 10 (Justice S. Murtaz Fazal Ali).
68
Supra note 63, 13 (Justice K.S. Hegde).
69
Keshvananda Bharti v. State of Kerala, (1973) 4 S.C.C. 225, 1714 (Justice S.M. Sikri).
70
PAMMU CONST. art.51A, cl. (g).
71
PAMMU CONST., The Constitution (Forty-Second Amendment) Act, 1976.
72
THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960
73
Id.
11
alone, but to animals as well74. The impugned Act has been enacted in order to
comply with the provisions of the PCA Act75 and to ensure that the rights of the
animals are not infringed. Moreover, along with the prevention of slaughtering,
the Government has also emphasized on the housing, food and health of the
cattle through some of the provisions in the Act. The provisions ensure that the
cattle eats good quality of fodder and lives in spacious & ventilated areas. It is
thus argued that, the Government is fair in implementing the DPSP which
ultimately leads to a better life for cattle.
B.
Article 1476 assures the citizens equality before law and equal protection of law.
In a society, varying needs of different classes of persons often require separate
treatment.77 So, the State can differentiate between two classes but the
classification needs to be reasonable. In order to check the reasonableness of
the classification, the twin test is laid down by the court
(i) The classification must be based on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of
group;
(ii) The differentia must have a rational relation to the object sought to be
achieved by the act.78
37.
The classification made by the impugned Act is between the butchers who are
involved in slaughtering of cows, bulls and bullocks and the butchers who are
involved in the slaughtering of other animals. The object which is sought to be
74
Animal Welfare Board of India v. A. Nagaraj and Ors., 2014 (4) A.B.R. 556, 62 (Justice Panicker
Radhakrishnan).
75
Supra note 65.
76
PAMMU CONST. art.14.
77
Dhirendra v. Legal Remembrancer , 1955 1 S.C.R. 224, 16 (Justice M.C. Mahajan); Chiranjit Lal v.
Union of India ,1950 S.C.R. 869, 88 (Justice S.K. Das); State of Bombay v. Balsara, 1951 S.C.R.
682, 38 (Justice Saiyid Fazl Ali); State of M.P. v. Bhopal Sugar Industries, A.I.R. 1964 S.C. 1179,
6 (Justice J.C. Shah).
78
K. Thimmappa v. Chairman Central Board of Directors SBI, A.I.R. 2001 S.C. 467, 3 (Justice G.B.
Patnaik).
12
The classification has a strong nexus with the object sought to be achieved
because in order to preserve and improve the agriculture and animal husbandry,
protection of cattle useful for the agriculture also needs to be protected.
Therefore, the impugned Act does not violate Article 14.
(ii) The Act is not in violation of Article 19(1) (g).
39.
The impugned Act is also not violative of Article 19(1) (g)81 as the right under
the said article is not absolute and subject to reasonable restrictions under Art.
19(6)82, on the grounds of public interest, etc. It is submitted that the restriction
imposed by the impugned act is reasonable because it is not total prohibition on
79
Municipal Corpn. Ahmedabad v. Jan Mohamed Usman Bhai, (1986) 3 S.C.C. 20, 24 (Justice R.B.
Mishra); Haji Usman Bhai Hasan Bhai Qureshi v. State of Gujarat, A.I.R. 1986 S.C. 1213, 21 (R.B.
Mishra); State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors. , A.I.R. 2006 S.C. 212,
15 (Chief Justice R.C. Lahoti).
80
Mohd. Hanif Qureshi and Ors.., v. State of Bihar, A.I.R. 1958 S.C. 731, 23 (Chief Justice Sudhi
Ranjan Das).
81
PAMMU CONST. art.19, cl. 1, sub cl. (g).
82
PAMMU CONST. art.19, cl. 6.
13
the activities of butchers, they can slaughter other animals in order to exercise
their right under Article 19.83 In so far as the trade in hides, skins and other
allied things which are derived from the dead animals are concerned, it is not
necessary that the animals be slaughtered to avail these things 84, it can be
availed after the natural death of animals. It has been held that if any restriction
imposed on fundamental right is because of the implementation of DPSP and is
ancillary to the impugned act, than it has to be considered as a reasonable
restriction in public interest.85
Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usman Bhai
and Anr.86, expressly stated that:
The expression "in the interests of general public" is of a wide import covering
public order, public health, public security, morals, economic welfare of the
community and the objects mentioned in Part IV of the Constitution.
40.
41.
The Act has been implemented in order to protect the cow, bulls and bullocks
since they have several uses and help in fostering the economy of the country.
83
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., A.I.R. 2006 S.C. 212, 34 (Chief
Justice R.C. Lahoti); Krishna Kumar v. Municipal Committee of Bhatapara , Petition No. 660 of 1954
decided on 21st February 1957 by Constitution Bench.
84
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., A.I.R. 2006 S.C. 212, 34 (Chief
Justice R.C. Lahoti).
85
Workmen on Meenakshi Mills Ltd. and Ors. V. Meenakshi Mills Ltd. And Anr., (1992) IILLJ 294
S.C., 27 (Justice S.C. Agarwal); Papnasam Labour Union v. Madura Coats Ltd. and Anr., A.I.R. 1995
S.C. 2200, 21 (Justice G.N. Ray);Indian Handicrafts Emporium v. Union of India A.I.R. 2003 S.C.
3240, 39 (Justice S.B. Sinha); Razakbhai Issakbhai Mansuri and Ors. v. State of Gujarat and Ors.,
1993 Supp. (2) S.C.C. 659, 11 (Chief Justice L.M. Sharma); State of Gujarat and Ors. v. Akhil Gujarat
Pravasi and Ors., (2004) 5 S.C.C. 155, 10 (Justice G.P. Mathur);Om Prakash and Ors. v. State of U.P.
and Ors., (2004) 3 S.C.C. 402, 31 (Justice Shivraj P. Patil); State of Tamil Nadu and Ors. v. M/s.
Sanjeetha Trading Co. and Ors., (1993) 1 S.C.C. 236, 19 (Justice N.P. Singh).
86
Municipal Corporation of the City of Ahmedabad and Ors. V. Jan Mohammed Usman Bhai and Anr.,
[1986] 2 S.C.R. 700, 19 (Justice R.B. Mishra).
87
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors.,A.I.R. 2006 S.C. 212, 56 (Chief
Justice R.C. Lahoti).
14
It has been imposed in the interest of the public. The ban therefore, falls within
the reasonable restrictions as enshrined in Article 19(1) (g) of Constitution and
is valid.
42.
The counsel most humbly submits that the impugned act is not violative of any
fundamental rights of the citizens under Part III of the Constitution of Pammu,
hence is constitutionally valid.
15
PRAYER
PRAYER
Wherefore, in the light of the issues raised, arguments advanced and authorities
cited, the counsels on behalf of the Respondents most humbly pray before this
Honble court to adjudge and declare that:
And pass any other order that this Honble Court may deem fit in the interests of
justice, equity and good conscience.
For this act of kindness, the counsel would forever pray before this Honble court.
Date:
____________________
Sd/-
XV