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)

V.

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

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

Counsels for Respondents-

1.VISAKH.R

2.AKSHAY.S.S

3.GOVIND.V.P

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

INDEX OF ABBREVIATIONS ....................................................................................................................... iii

INDEX OF AUTHORITIES ............................................................................................................................. iv

STATEMENT OF JURISDICTION ............................................................................................................... ix

STATEMENTS OF FACTS ............................................................................................................................. x

STATEMENT OF ISSUES ............................................................................................................................... xi

SUMMARY OF ARGUMENTS ..................................................................................................................... xii

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 ..........................................................................................................5

3. WHETHER GAUVANSH SANRAKSHAN AND GAUSAMVARDHAN ACT OF 2015 IS

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

PRAYER FOR RELIEF .................................................................................................................................. xiii

ii
 TABLE OF ABBREVIATIONS

¶ Paragraph Number
¶¶ Paragraph Numbers
& 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
v. Versus
Vol. Volume
UDHR Universal Declaration of Human Rights
WHO World health Organisation
FAO Food and Agricultural Organisation
U.N United Nations

iii
 INDEX OF AUTHORITIES
TABLE OF CASES

S.No Cause title Citation

1. Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225
2. Kerala Education Bill, In re, AIR 1957 SC 956
3. U.P.S.E . Board v. Hari Shankar AIR 1979 SC 65
4. Minerva Mills v. Union of India AIR 1980 SC 1789

5. T.N.Godavarman Thirumalpad v. Union of India and AIR 1997 SC 1228

Ors
6. N.R.Nair v. Union of India AIR 2000 Ker 340
7. AIIMS Students' Union v. AIIMS and Ors. (2002) 1 SCC 428
8. State of Gujarat v. Mirzapur Moti Kureshi Kassab AIR 2006 SC 212
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 1963 Supp. (1) SCR 789

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 AIR 1995 SC 464
14. CESC Ltd. v. Subhash ChandraBose 1992 AIR SC 573
15. Parmanand Katra v. Union of India AIR 1989 SC 2039
16. Shreya Singhal v. Union of India (2013) 12 SCC 73
17. State v. Thakur Prasad 1958 All LJ 578
18. Ajay Goswami v. Union of India AIR 2007 SC 493
19. Rajagopal v. State of Tamil Nadu 1994 SCC (6) 632
20. Soma Rama Chandram v. State Of Andhra Pradesh 2013(3) RCR (Civil) 707
21. Sharda v. Dharmpal AIR 2003 SC 3450

iv
22. Rohit Shekhar v. Shri Narayan Dutt Tiwari & Anr 2011(4) RCR (Crl.) 307
23. Govind v. State of Madhya Pradesh & Anr (1975) 2 SCC 148
24. Munn v. Illinois (1877) 94 US 113
25. Wolf v. Colorado (1949) 338 US 25
26. Aveek Sarkar v. State of West Bengal (2014) 4 SCC 457
27. Ranjit D. Udeshi v. State of Maharashtra (1965) 1 SCR 65
28. Janaganavadi Bharat v. Govt. of India AIR 2004 All 427
29. A.K.Roy v. Union of India AIR 1982 SC 710
30. Lakhshminarayan v. Province of Bihar (1950) SCJ 32 (35)
31. Venkat v. State of A.P AIR 1985 SC 724
32. R.C.Cooper v. Union of India AIR 1970 SC 564
33. Nagaraj v. State of A.P AIR 1985 SC 551
34. Gurudevdatta VKSSS Maryadit v. State of AIR 2001 SC 1980
Maharashtra
35. State of Punjab v. Satya Pal Dang AIR 1969 SC 903
36. Praveen Kumar fruit Co. v. Hyderabad Agricultural 1997 AIHC 2644
Market Committee
37. Lindsley v. Natural Carbonic Gas Co. (1910) 220 US 61
38. Ameeroonissa v. Mahoob 1953 SCR 404(414)
39. Kangshari v. State of West Bengal AIR 1960 SC 457
40. Ashuthosh Gupta v. State of Rajasthan (2002) 4 SCC 34
41. Prabhudas Morarjee Rajkotia v. Union of India AIR 1966 SC 1044
42. Mohini Jain v. State of Karnataka AIR 1992 SC 1858
43. Unni Krishnan J.P. v. State of Andhra Pradesh AIR 1993 SC 2178
44. Kuldip Nayar v. Union Of India & Ors. AIR 2006 SC 3127
45. N.P.Ponnuswami v. Returning officer, Namakkal AIR 1952 SC 64
Constituency
46. Jamuna Prasad Mukhariya v. Lachi Ram AIR 1954 SC 686
47. Jyoti Basu v. Debi Ghosal AIR 1982 SC 983
48. P.Nallathampy v. B.L.Sankar AIR 1984 SC 135
49. Javeed v. State of Haryana AIR 2003 SC 3057
50. Raju. V.B v. Chief Electoral officer, Gujarat AIR 1976 Guj 66

v
 51. Griswold v. Connecticut 381 U.S. 479 (1965
52. Roe v. Wade 410 U.S. 113 (1973)
53. Kharak Singh v. State of U.P &Ors. 1964 SCR (1) 332

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 LAW HOUSE,INDIA, 2008, 3RD EDITION
8. M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2014, 7TH
EDITION, VOLUME 1
9. BASU DR. DURGA DAS, CONSTITUTIONAL REMEDIES AND WRITS, 1ST
ED. REPRINT 1994, KAMAL LAW HOUSE, CALCUTTA.
10. DATAR ARVIND, 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, 1860

JOURNALS REFERRED

• SUPREME COURT CASES (SCC)

• ALL INDIA REPORTER (AIR)
• SUPREME COURT REPORTER (SCR)

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 Hon’ble 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 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 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 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 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 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 PEOPLE’S 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
People’s 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 is within the contour of the constitution.

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) the houses are not in session

ii) The President is satisfied that necessary circumstances exist which render it
necessary for him to take immediate action.2

The ‘satisfaction’ referred to in this clause is the satisfaction of the President acting on the
advice of his Council of Ministers.3 The President is not bound to explain the reasons for
promulgating an ordinance or even to prove them in a Court of Law.4 In A.K. Roy v. Union
of India5 the Hon’ble Supreme Court has upheld this power on the ground that it is
necessary to meet urgent situations. The onus is on the Petitioner to make out a prima facie
case that ‘necessary circumstances’ did not exist, but in the case on hand the petitioner has
failed to prove it.

1.2. Judicial review of ordinance making power

The Court cannot question the propriety of the President’s 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
Janaganavadi Bharat v. Government of India, AIR 2004 All 427
2
A.K.Roy v. Union of India, AIR 1982 SC 710
3
Ibid
4
Lakhshminarayan v. Province of Bihar, (1950) SCJ 32 (35)
5
Supra note 2
6
Venkata v. State of A.P, AIR 1985 SC 724

1
Ministers.7This ordinance is a measure to tackle the upcoming parliamentary elections in
Pammu and the circumstances clearly makes it the need of the hour.

When the facts upon which President was satisfied as to the existence of ‘necessary
circumstances’ is in the possession of the government, there is no compulsion on the
Ordinance making authority to give reasons or disclose the information while promulgating
an ordinance.8 Unless the ordinance infringes any constitutional safeguards, it cannot be
examined9 nor can the motive for such promulgation be in question.10

1.3. The ordinance is in conformity with the principles enshrined in the constitution

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

7
R.C.Cooper v. Union of India, AIR 1970 SC 564
8
Ibid
9
Gurudevdatta VKSSS Maryadit v. State of Maharashtra,(2001) 4 SCC 534
10
State of Punjab v. Satya Pal Dang, AIR 1969 SC 903,“Courts cannot interfere with the legislative malice
in passing a statute. Legislative malice is beyond the pale of jurisdiction of the law courts. Even in cases
where an ordinance is irrelevant in the circumstances but if the executive in its wisdom thought, it fit to
promulgate an ordinance, it is no part of the Court’s duty to describe it as otherwise not required”. The
mere fact that the Parliament was prorogued only a few days before making an ordinance would not be an
evidence of mala fides. In fact it is declared by the Supreme Court that President can prorogue Parliament
in order to able to promulgate an ordinance.
11
Ameeroonissa v. Mahoob,1953SCR 404(414), The Apex Court has held that
“inequality of treatment does not per se amount to discrimination. To attract the
operation of this clause the selection or differentiation must be unreasonable or
arbitrary, that it does not rest on any rational basis having regard to the object of the
legislature”
12
Praveen Kumar Fruit Co v. Hyderabad Agricultural Market Committee, 1997 AIHC 2644
13
Lindsley v. Natural Carbonic Gas Co,(1910) 220 US 61
14
“that the person shall not be qualified to be chosen to fill a seat in Parliament unless he posses such other
qualifications as maybe prescribed in that behalf or under any law made by the Parliament”
15
Kangshari v. State of West Bengal,AIR1960 SC 457

2
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 treatment17 but also the person had been
treated differently from other persons similarly placed without any rational basis.18

1.4. The amendment is in progression of the Directive Principles of State Policy.

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
Re Kerala education bill,1959 SCR 995

3
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. The ordinance is in pursuance of the object sought to be achieved by the

Constitution and RPA, 1951
The right to contest an election is neither a fundamental right nor a Constitutional right but it
is merely a statutory right.25 It is creature of a statute26 and must be subject to the
limitations27 imposed by it.28

In Javeed v. State of Haryana29, the Supreme Court held that,

“There is nothing wrong in some statute which confers the right to contest an election also
to provide for the necessary qualifications without which a person cannot offer his
candidature for an elective office and also to provide for disqualification which would
disable a person from contesting for, or holding, an elective statutory office”.

Further the very object of RPA entitles prescription of qualifications and disqualifications
for Members of Parliament. Articles 84 and 173 do not confer any constitutional right to
contest elections30 either for Parliament or State legislature because that is subject to the
power of the legislation to lay down any disqualification.31

It is humbly submitted that the Government has reflected the will of the people through the
present ordinance. There is no bar in the Constitution or RPA for prescribing minimum
educational qualifications and with the improvement in the literacy rate of the country the
present Amendment to the Act is inevitable.

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

4
2. THE TELECOM ORDER TARGETING WEBSITES PROMOTING REVENGE PORN IS VALID.

The telecom order targeting websites promoting revenge porn does not violate the
fundamental rights guaranteed to the citizens as it is not absolute and is subject to reasonable
restrictions.

2.1. Authority of the government to pass the telecom order.

Revenge pornography is posting of sexually explicit content without consent of the other
party involved, with intention to defame or harass. It is a form of harassment and an
invasion of privacy.32 In Pammu, although the term ‘revenge porn’ is not explicitly
mentioned in any statute, it falls within the broader term ‘obscenity’.

Under Section 79(3)(b) of the Information Technology Act, 200033 (hereinafter referred as
IT Act) the Department of Telecom directed Internet Service Providers to block access to
around 900 porn websites as the content hosted on these websites infringe the fundamental
rights of the citizens.

This order was passed due to rise in pornography related crimes. The National Crimes
Record Bureau data showed a 63.7% rise in cyber crimes.34 Transmission of obscene content
spiked up 104.2% from 2012 to 2013.

2.2. Censorship on Internet content is permitted.

Further, Art 19(2) grants power to the government to make any laws which affect morality
or decency.35 In Shreya Singhal v. Union of India,36 it was held that “Section 69A of the IT

32
Citron & Franks, Criminalising Revenge Porn (2014)
33
Exemption from liability of intermediary in certain cases:-(3) The provisions of sub-section (1) shall not
apply if- (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its
agency that any information, data or communication link residing in or connected to a computer resource
controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to
expeditiously remove or disable access to that material on that resource without vitiating the evidence in
any manner.
34
As on July 2014
35
Protection of certain rights regarding freedom of speech etc : (2) Nothing in sub clause (a) of clause ( 1 )
shall affect the operation of any existing law, or prevent the State from making any law, in so far as such
law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the
interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence.
36
Shreya Singhal v. Union of India,(2013) 12 SCC 73

5
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 sub-
sections (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
Citron & Franks, Criminalising Revenge Porn (2014)

6
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

42
Justice Rajendra Babu, Freedom of Speech – New perspectives , (2000)2 LW (JS) 97 (2)
43
Taxman’s 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.
49
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.

7
In Rajagopal V. State of Tamil Nadu,52 origins of Right to privacy53 was traced,

‘If the Court finds that a claimed right is entitled to protection as a privacy right, a law
infringing it must satisfy the compelling State interest test. Privacy interest in autonomy
must be placed in the context of other rights and values’.

Revenge porn is a gross violation of right to privacy of the victim54 and the first step towards
protecting such persons is a ban on such websites55. Right to privacy is not absolute.56 If
there were a conflict between fundamental rights of two parties, that right which advances
public morality would prevail.57

A citizen has a right to safeguard the privacy of his own and his family. None can publish
anything concerning the above matters without his consent58. If he does so, he would be
violating the right to privacy of the person concerned and would be liable in an action for
damages59. Right to privacy must be subject to restriction on the basis of compelling public
interest”.60

There are other accessible pornographic websites. The object of ban is to control
proliferation of non-consensual pornographic websites.

2.6. Penalizing provisions under IT Act and IPC

Section 67 of the IT Act61 penalizes publishing and transmission of online pornography. To

be considered obscene for the purpose of this section, the matter must satisfy at least one of
the following conditions:

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.

8
1. It must tend to excite lust,

2. It must arouse interest in lustful thoughts,

3. It must cause a person to become morally bad.

Obscenity is punishable under the IPC. The sex-related materials which excite lustful
thoughts is obscene from an average person’s point of view.62Revenge Porn satisfies the two
conditions necessary to attract Sec. 292, namely:

1. Treatment of sex in a manner offensive to public decency,

2. Obscenity without a preponderating social purpose or profit cannot have the constitutional
protection of free speech and expression.63The standard to test obscenity should not be that
of an immature teenager or an abnormal person but of a normal, that is a person with
menssana in corporissana.

2.7. International Conventions on Right to Privacy and Protection of women:

Majority of the revenge porn victims are women.64They are forced to move towns, changed
names, and lost jobs and yet continued to be solicited and stalked by strangers.65 The
Indecent Representation of Women (Prohibition) Act, 1986 also punishes indecent
representation of women.66 U.N also emphasises on ban of revenge porn.67 It is violative of
Articles in Istanbul Convention68 and other conventions.69

62
Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 457
63
Ranjit D. Udeshi v. State of Maharashtra, (1965) 1 SCR 65
64
In a survey conducted by CCRI, it was found that 93% of the victims are females.
65
National Crimes Record Bureau (NCRB) figures — released on July 1, 2014 — show a 63.7 per cent rise
in cyber offences from 2012 to 2013. During this period, the category "transmission of obscene content in
electronic form" reflects a quantum jump —104.2 per cent — with 1,203 cases registered and 737 people
arrested. "The data show cyber offences against women have increased sharply."
66
Section 2 ( d ), “Indecent representation of women means the depiction in any manner of the figure of a
woman, her form or body or any part thereof in such a way as to have effect of being indecent, or
derogatory to or denigrating, women, or is likely to deprave, corrupt or injure the public morality or
morals.”
67
UN observed World Telecommunication and Information Society Day to raise
awareness of the possibilities, internet can bring to our society. It is a chance to take
efforts to protect women’s rights on the internet.
68
The Council of Europe Convention on preventing and combating violence against women and domestic
violence
69
Additional Protocol to the Council of Europe’s Convention of Cybercrime recognises racist and
xenophobic hate speech on the internet as a violation of the Convention for the Elimination of Racial
Discrimination

9
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 Jersey’s 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 SANRAKSHAN AND GAUSAMVARDHAN 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 Hon’ble 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 person’s 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.

3.1. The Act is in furtherance of Article 48 of the Constitution

The provisions under Part IV of the Constitution contain certain directives which embody
the aim and objective of the Government to achieve a welfare State.76 The DPSP do not
override the Part III but in determining the ambit of the fundamental rights, the Courts may
not entirely ignore the Directive Principles.77 The ban on slaughter of cows, bulls and
bullocks is in consonance with the policy in Art 48.78 The Article provides a clause that the
State shall endeavour to prohibit slaughter of cows and calves and other milch and draught
cattle.

When Art 48 is read in two parts, the scope of the first part relates to State’s duty to organise
Agriculture and Animal husbandry on modern and scientific lines. The second part is to
prohibit the slaughter of Cows, calves and other milch and draught cattle.

The term ‘milch’ denotes a cow or other domestic mammal, giving or kept for milk.79 Cow
and calves are covered under the term milch but a special reference is made to them which
impliedly empowers the State to make special legislations on Cows and Calves specifically
and not on any other animals.

On the lines of Article 48 the Government had to take steps for preserving and improving
the breeds, and prohibiting slaughter of cows and other milch and draught cattle. Though
Art. 48 is not a fundamental right, the Courts should evolve, affirm and adopt principles of
interpretation which will further and not hinder the goals set out in DPSP.80 The
Fundamental Rights are not an end in itself but are the means to an end. The end is specified
in Part IV.81

76
Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225
77
Kerala Education Bill, In re, AIR 1957 SC 956
78
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
Oxford Dictionary, 11th edition.
80
U.P.S.E . Board v. Hari Shankar, AIR 1979 SC 65
81
Minerva Mill v. Union of India, AIR 1980 SC 1789

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

Pammu’s 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
83
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

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 butcher’s trade for only a day.
For the next day’s 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
92
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”.

13
The Act is validated by the reasonable restrictions clause in Art 19(6).95The term
‘restriction’96 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. restriction' includes cases of 'prohibition'.

2. the standard for judging reasonability of restriction or restriction amounting to prohibition
remains the same, excepting that a total prohibition must also satisfy the test that a lesser
alternative would be inadequate;

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

14
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.

15
 PRAYER FOR RELIEF

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

1. the petitions be dismissed

2. Pass any or other such orders that it may deem fit in the interest of justice, equity and
good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED ON BEHALF OF THE RESPONDENT

Sd/-

COUNSEL FOR THE RESPONDENT

xiii