1.

Whether the Representation of People’s Act (Third Amendment) Ordinance, 2014 is

arbitrary in nature and affects the right of Mr. Mootkar Ritwick Roshan to contest the
elections.

2. Whether the Telecom Order only targeting the websites prompting "revenge porn" is
valid.

3. Whether Gauvansh Sanrakshan and Gausamvardhan Act of 2015 is constitutionally

valid..

1. The ordinance 2014 violates Art 14 of the Indian Constitution, Article 21

of the Universal Declaration of Human Rights1 and Article 25 of the
International Convention on Civil and Political Rights (ICCPR).2

1.1 That the Ordinance 2014 does not pass the test of reasonable
classification.3

The Ordinance has also been challenged being violative of Article 14 of the
Constitution of India, which guarantees to every person equality before the law.4

The Impugned Ordinance is ultra vires of Article 145 of the Constitution of

India inasmuch as it arbitrarily and unreasonably differentiates between

1
Universal Declaration of Human Rights, through Article 21 provides as under: -
1."Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.
2
International Convention on Civil and Political Rights (ICCPR), in its Article 25 provides as under: - "Every
citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
a. To take part in the conduct of public affairs, directly or through freely chosen representatives;
b. To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
3
Budhan Choudhry v. State of Bihar (1955) 1 SCR 1045; Ramkrishna Dalmia v Justice Tendolkar AIR 1958
538; Indra Sawhney. v. Union of India and Others. AIR 2000 SC 49
4
John Vallamattom v. Union of India, AIR 2003 SC 2902; S.G Jaisinghani v. Union of India, AIR 1967 sc
1427; The General Manager, Southern Railway v. Rangachari 1962 SCR (2) 586; State Of Kerala & Anr vs N.
M. Thomas & Ors 1976 SCR (1) 906; Welfare Association A. R.P. Maharashtra & Anr. v. Ranjit P. Gohil &
Ors., JT (2003) 2 SC 335; Kedar Nath Bajoria And Anr. v State Of West Bengal AIR 1954 SC 660; E.V.
Chinnaiah v. State of A.P. and Others (2005) 1. SCC 394; State of Maharashtra v. Indian Hotel & Restaurants
Assn., (2013) 8 SCC 519
5
Lachmandas Kewalram v. State of Bombay AIR 1952 SC 235 (A)
candidates who possess the prescribed qualification and those who do not
possess the prescribed qualification. Further, the impugned ordinance also
discriminates between candidates having formal educational qualifications and
candidates who are literate even without possessing a formal educational
qualification. By disentitling the class of potential candidates who do not
possess formal educational qualifications, the Impugned Ordinance arbitrarily
denies equality before the law to all such persons.

The Ordinance has been promulgated on the eve of the elections, in colourable
exercise of power, both on the ground that there was no urgency to promulgate
the Ordinance on an issue which required extensive debate, and further on the
ground that it is violative of Article 14 of the Constitution of India.6 There is no
educational qualification prescribed for the Cabinet Ministers, Prime Minister,
or even for the President of India.7 The Hon’ble High Court of Rajasthan has in
fact recognized such a distinction as unreasonable and arbitrary.8

The court has to bear in mind that what is at stake is the right to contest an
election and to be a Member of the Parliament, indeed a very important right in
any democratic set-up..A ban on candidature must have a substantial and
reasonable nexus with the object sought to be achieved.9 The requirement of
formal educational qualification is not essential for effectively discharging the
duties and functions.10Therefore, the literacy requirement prescribed by the
Impugned Ordinance is irrational, arbitrary and violates the constitutional
equality guaranteed under Article 14.

6
Dulari Devi and Ors. v. State of Rajasthan and Ors. AIR 2015 Raj 84
7
id
8
Ismail v. State of Rajasthan AIR 1958 Raj 96
9
K.B. Rohamare v. Shanker Rao Genuji Kolhe (1975) 1 SCC 252; Shivamurthy Swami Inamdar v.
Veerabhadrappa Veerappa : 1971 (3) SCC 870
10
Dulari Devi and Ors. v. State of Rajasthan and Ors. AIR 2015 Raj 84; People’s Union for Civil Liberties v.
Union of India reported in 2003 (4) SCC 399
1.2 The Impugned Ordinance, leads to large scale exclusion of rural
population where literacy rates are low which is “arbitrary, artificial or
evasive”.

It is submitted that by promulgating an ordinance in the Country of Pammu

wherein the literacy rates are appallingly low11 will lead to the exclusion of
larger group of people especially Mr Mootkar Ritwik Roshan the Petitioner in
the case ,which is against the spirit of Democracy.12

Further it is submitted that Article 45 (as it stood before 86 th amendment) of the

Constitution of Pammu put a duty on the state to provide free and compulsory
primary education. The RTE has been passed only 6 years back, which is not
sufficient time for these people to achieve the qualifications prescribed in the
ordinance, even if they start education late in life.

Incidentally, during the course of the instant case, an argument can also made
on the lines that the government has not provided adequate facilities for
education in certain areas and as in the case of Mr. Mootkar Ritwick Roshan
who hails from a small village called Allahpur where the entire village does not
have a primary and a secondary school.13

The challenge to the constitutionality of the Ordinance is two-pronged, and it is

important to separate the two prongs. The first is the claim that by disallowing
people who lack formal education to contest the elections, the Ordinance is
discriminatory under Article 14, and also violates Article 19(1)(a)’s freedom of
democratic participation.

11
According to a report by the Ministry of Human Resource Development of Pammu dated 14th September
2011, the literacy rate in urban areas is 84%, it lags behind at 72% amongst rural areas.
12
Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal (1995) 2
SCC 161
13
Para 7 Factsheet, pg 2
The second is that the male-female and urban-rural divide ensures that the
Ordinance disproportionately burdens women in general14, and rural women in
particular.15

For instance, a law that prohibits persons with criminal convictions from
standing for elections has a demonstrable nexus with the role of elections in a
democratic process. A law that prohibits persons on the basis of literacy does
not. Democracy in India is a product of the rule of law and aspires to establish
an egalitarian social order.16

2. The Representation of People’s Act (Third Amendment) Ordinance

2014 can be challenged.

2.1 That immediate action was not required17 and should be used in
exceptional circumstances.

In the present matter the ordinance was brought just 6 months before the general
election which is arbitrary. It is submitted that the President’s decision could be
challenged on the grounds that ‘immediate action’ was not required; and the
Ordinance had been passed primarily to by-pass debate and discussion in the
legislature. 18

Similarly it is stated that this amendment was vehemently opposed by all the
opposition parties, these parties decided to not let the house function till the
amendments were withdrawn. After the session was adjourned, the Union
Government came out with an ordinance titled the Representation of People’s
Act (Third Amendment) Ordinance, 2014. It clearly suggests that the

14
Article 15 ,The Constitution of Pammu, 1950
15
Article 14 claim, if we assume that – following the Court’s previous judgments – intersectional claims cannot
be brought within Article 15.
16
T.N. Seshan, CEC of India v. Union of India and ors 14 July, 1995; Kuldip Nayar v. Union of India & Ors
(2006) 7 SCC 1
17
: Krishna Kumar Singh & Anr. v. State of Bihar AIR1998 SC 2288
18
RC Cooper vs. Union of India AIR1970 SC 564
promulgation of the ordinance has been passed primarily to by-pass debate and
discussion in the legislature.

The power is exercisable only when both Houses of Parliament are not in
session and it has been conferred ex-necessity in order to enable the executive
to meet an emergent situation19 20
and not as a substitute for the law making
power of the legislature.21

2.2 The Ordinance 2014 constitutes colourable legislation.

That the state of Pammu has acted in colourable exercise of powers with an
oblique purpose to disqualify and to exclude a large section of population living
in rural areas from the election process. The Ordinance is not a product of any
debate and discussion.22 There was no urgency to introduce a vital
disqualification through an Ordinance, which could have awaited a duly enacted
law. The dates of election could have been worked out after the process of duly
enacting a law. It was promulgated only to defeat the constitutional process.
Ordinance is plainly against the objective of the main Act, providing for
representative democracy for the weaker sections of the society.23

3. Arguendo, the right to contest an election is a statutory right but the

interpretation should be done in harmony with the constitutional
scheme.

For the sake arguments even it is accepted that the right to contest election
although arises under a statute but having regard with regard to the
interpretation thereof must be made keeping in view the constitutional

19
T. Venkata Reddy etc. etc. v. State of Andhra Pradesh 1985 AIR 724,; Ramesh Mehta Vs. Sanwal Chand
Singhvi & Ors. 2004 (5) SCC 409
20
R.K. Garg etc. etc. v. Union of India and Ors., etc., [1982] 1 SCR 947
21
DC Wadhwa v. State of Bihar 1987 AIR 579; Krishna Kumar Singh & Anr. v State Of Bihar AIR 1998 SC
2288
22
Dulari Devi and Ors. v. State of Rajasthan and Ors. AIR 2015 Raj 84
23
Id; K.C. Gajapati Narayana Deo And Other v. The State Of Orissa AIR 1953 SC 375.
scheme.24The right to contest an election although flows from a statute and
regulated thereby, it would not be correct to contend that a strict construction of
the statutory provisions is called for.25

According to Art 38(2) the state shall endeavour to eliminate inequalities in

opportunities. Therefore even if it is not a Fundamental Right it very well comes
under the purview of D.P.S.P26 which essential in the governance of the
country.27

Therefore in light of the benefit of the community at large, the Directive

Principles may be used to determine the extent of public interest to limit the
scope of Fundamental Rights.28

24
Ramesh Mehta v Sanwal Chand Singhvi & Ors AIR2004SC2258.
25
Lalit Mohan Pandey v. Pooran Singh and Ors. AIR 2004 SC 2303.
26
Minerva Mills v Union of India [1980] 2 SCC 591.
27
Chandra Bhawan Boarding and Lodging Bangalore v State of Mysore[1969] 3 SCC 84.; Kesavanda Bharati v
State of Kerala [1973] 4 SCC225.; Sanjiev Coke Mfg. Co. v M/s Bharat Coking Coal Ltd.AIR 1983 SC 239.;
State of Tamil Nadu v L. Abu Kavier BaiAIR 1984 SC 725.; Mohini Jain v State of Karnataka[1992] 3 S.C.C.
666. Unni Krishnan v State of Andhra Pradesh1993 AIR 2178.
28
Bertus De Villiers, Directive Principles of State Policy and Fundamental Rights: The Indian Experience,
[1992] 8 South African Journal on Human Rights, 49.
1.1

The Hon’ble High Court of Rajasthan has in fact recognized such a distinction as
unreasonable and arbitrary in Ismail v. State of Rajasthan AIR 1958 Raj 96, held that the
minimum qualification of literacy would be that the candidate should have passed the first
primary class from a school, then it would have excluded all those entire person who had
studied privately and not joined any school. That provision would have worked to the
detriment of more persons and it would have unreasonably excluded those literate persons
who had studied privately or in an unrecognised school and who were otherwise more literate
than the persons who had passed the first primary class.

The Hon’ble Supreme Court in its judgment in People’s Union for Civil Liberties vs. Union
of India reported in 2003 (4) SCC 399 , while deciding on requirement of MLA or MP
election candidates to disclose their educational qualifications observed that to say that well
educated persons such as those having graduate and post-graduate qualifications will be able
to serve the people better and conduct themselves in a better way inside and outside the
House is nothing but overlooking the stark realities. The experience and events in public life
and the Legislatures have demonstrated that the dividing line between the well educated and
less educated from the point of view of his/her calibre and culture is rather thin. Much
depends on the character of the individual, the sense of devotion to duty and the sense of
concern to the welfare of the people. These characteristics are not the monopoly of well
educated persons.”

SupremeCourtOrder

According to a report by the Ministry of Human Resource Development of Pammu dated

14th September 2011, the literacy rate in urban areas is 84%, it lags behind at 72% amongst
rural areas. Secondary school enrolment in urban areas is at 76%, while the same in rural
areas lies at a pitiable 42%. Furthermore, 22% of all secondary school students drop out
before completing their secondary education. It was also highlighted in the Report that there
was only 3% secondary school enrolment amongst the 10th percentile of the population by
income. It has been brought to our notice by the learned Advocate General that while
infrastructure for primary and secondary education in rural areas exists, the budgetary
allocation towards education has reduced in the last two terms of the Government.29

2.1

30
In R.K. Garg etc. etc. v. Union of India and Ors., etc., It was opined that power
exercisable only when both Houses of Parliament are not in session and it has been conferred
ex-necessity in order to enable the executive to meet an emergent situation31

It was argued in DC Wadhwa vs. State of Bihar 32the legislative power of the executive to
promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for
the law making power of the legislature. The Supreme Court argued that if Ordinance making
was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-
promulgated Ordinances.

29
Order dated 09/10/2015
30
[1982] 1 SCR 947
31
T. Venkata Reddy etc. etc. v. State of Andhra Pradesh 1985 AIR 724,; Ramesh Mehta Vs. Sanwal Chand
Singhvi & Ors. 2004 (5) SCC 409
32
1987 AIR 579