TC - 19S

1st Amity National Moot Court Competition 2019

IN THE HON’BLE SUPREME COURT OF INDISTAN

IN THE MATTER OF:

Mr. M. C. Kehta ………………. Petitioner

Versus

NCT Kushalpur and Anr. …………… Respondent

PETITION NOS. ___/2019,

THROUGH SLP FILED UNDER ARTICLE 136 OF CONSTITUTION

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS:
st
1 Amity National Moot Court Competition 2019.......................................................................................1
LIST OF ABBREVIATIONS.............................................................................................................................III
INDEX OF AUTHORITIES..............................................................................................................................IV
CASE INDEX.................................................................................................................................................V
STATEMENT OF JURISDICTION..................................................................................................................VII
STATEMENT OF FACTS..............................................................................................................................VIII
STATEMENT OF ISSUES...............................................................................................................................IX
SUMMARY OF ARGUMENTS........................................................................................................................X
ARGUMENTS ADVANCED............................................................................................................................1
ISSUE-I - WHETHER THIS CASE IS MAINTAINABLE IN THIS HON’BLE COURT?..............................................1
ISSUE-II - IS THE ODD-EVEN SCHEME IMPLEMENTED BY THE GOVT. OF NCT VIOLATIVE OF THE
FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF INDISTAN?..........................................................6
ISSUE-III - DOES THE SATIRICAL SKETCH UPLOADED BY MR. KEHTA AMOUNTS TO OBSCENITY AND
INDECENT REPRESENTATION UNDER THE CRIMINAL LAWS OF INDISTAN ?..............................................12
ISSUE-IV - WHETHER THE CONSULTATION BY LT. GOVERNOR WITH THE COUNCIL OF MINISTERS WAS
CONSTITUTIONALLY FULL AND PROPER? ..................................................................................................16
PRAYER......................................................................................................................................................18

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LIST OF ABBREVIATIONS

AIR All India Reporter

Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
Ed. Edition
Govt. Government
IPC Indian Penal Code
IC Indian Cases
LG Lieutenant Governer
Mad Madras High Court
n. Foot Note no.
NCT National Capital Territory
IT, Act The information and technology Act,2000
p. Page No.
I&T Information and Technology
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v. Versus

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INDEX OF AUTHORITIES

STATUTORY COMPILATIONS
1. CONSTITUTION OF INDIA, 1950.
2. INDIAN PENAL CODE, 1860.
3. INFORMATION TECHNOLOGY ACT, 2000.
4. MOTOR VEHICLE ACT , 1988.
5. INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT , 1986.

DICTIONARIES
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th eD. 2001).
2. P. RAMANATHA AIYER, THE LAW LEXICON (2ND ED. 2004).
3. OXFORD ENGLISH DICTIONARY, (2nd ed. 2009).
4. WEBSTER’S NEW INTERNATIONAL DICTIONARY (1926).

WEBSITES
1. www.judis.nic.in.
2. www.manupatra.com.
3. www.supremecourtcaselaw.com.

BOOKS
1. J.N Pandey , Constitutional Law of India , 53rd Edition, 2016 , Central Law Agency ,

Allahabad.

2. B. M. Gandhi , Indian Penal Code , 2nd Edition , 2008 , Eastern Book Co.

3. Shweta Jaswal , VIkram Singh Jaswal , Cyber Crime and Information Technology Act

2000 , First Edition 2014 , Regal Publications.

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CASE INDEX

1. Council of Scientific and Industrial Research v. K. G. S. Bhatt, (1989) 4 SCC 635; See
also, State of H. P. v. Kailash Chand Mahajan, AIR 1992 SC 1277.
2. Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666.
3. Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65; See also,
4. Arunalchalam v. Sethuratnam, AIR 1979 SC 1284; See also, H.M. Seervai,
5. Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65
6. Union of India v. Rajeshwari& Co., AIR 1986 SC 1748; See also, Gurbakhsh Singh v.
State of Punjab, AIR 1955 SC 320.
7. CIT v. MaganlalChaganlal (P) Ltd., (1997) 11 SCC 557
8. AmarchandSobhachand v. CIT, AIR 1971 SC 720.
9. CIT v. Orissa Corp Ltd., AIR 1986 SC 1849.
10. Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234
11. Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC
1314.
12. M. Janardhana Rao v. Joint Commissioner of Income Tax AIR 2005 SC 1309

13. Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC
1314; See also, Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.
14. Commissioner of Income Tax v. P. Mohanakala, (2007) 210 CTR 20.
15. Malabar Industrial Co. Ltd. v. CIT,(2000) 243 ITR 83.
16. British India Steam Navigation Co. Ltd. v. Jasjit Singh Additional Commissioner of
Customs, AIR 1964 SC 1451.
17. OnkarlalNandlal v. State of Rajasthan, (1985) 4 SCC 404
18. Indra Sawhney Etc. Etc vs Union Of India And Others, AIR 1993 SC 477
19. Chiranjeet Lal v. Union of India , AIR 1951 SC 41
20. Abdul Rehman v. Pnito, AIR 1951 Hyd 28
21. Subhash Kumar v. State of Bihar, 1991 AIR 420
22. M.C Mehta v. UOI, 1987 AIR 1086
23. BALCO Employees’ Union Vs. Union of India , (2002) 2 SCC 333
24. Parisons Agrotech (P) Ltd. v. Union of India, (2015) 9 SCC 657
25. Manohar Lal Sharma v. Union of India, (2013) 6 SCC 616
26. Union of India v. Dinesh Engg. Corpn., (2001) 8 SCC 491
27. Bennet Coleman and Co. v. Union of India, (1972) 2 SCC 788
28. Regina v. Hicklin, (1868) 3 QB 360
29. Ranjit D. Udeshi v. State of Maharashtra, 1965 AIR 881
30. Miller v. California, 413 U.S. 15
31. Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289
32. Chandra Rajakumari And Anr. vs Commissioner Of Police, 1998 (1) ALD 810
33. Mr. R. Basu Vs. National Capital Territory of Delhi and anr, 2007CriLJ4254
34. Govt. of NCT of Delhi v. Union of India and Anr. , CIVIL APPEAL NO. 2357 OF 2017
35. K.Lakshminarayanan vs The Union Of India. W.P.No.28890 of 2017
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36. Devji Vallabhbhai Tandel and others v. Administratorof Goa, Daman and Diu and
another, (1982) 2 SCC 222

STATEMENT OF JURISDICTION

The Counsel on behalf of the Respondent, hereby submits his written statement in the Petition
for Special Leave . The Counsel most humbly and respectfully, submits that this Hon’ble Court
has the requisite subject matter jurisdiction to entertain and adjudicate this matter.

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STATEMENT OF FACTS

1. NCT of Kushal Pradesh was suffering from high level of Air Pollution and Smog ,
causing respiratory and other health problems to its citizens. There was a huge uproar

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against that. The major causes for the pollution being burning of crops in the neighboring
states , vehicular pollution and construction in NCT Kushal Pradesh.
2. As a solution , Govt. of NCT requested neighboring govts. to stop the burning of crops.
and then when pollution and smog still persisted , came up with the idea before the
citizens of NCT of odd even scheme for winter to control vehicular pollution which
restricted the use of odd numbered non-transport 4 wheelers on even dates and vice versa.
The council of ministers presented the scheme to the LG of NCT.
3. It was planned by the council of ministers to implement this rule after consulting the
citizens , but LG being of opinion that the situation demanded for immediate action and
finding the scheme to be potentially great to control the pollution of Kushal Pradesh
implemented it by a notice dated 23rd September 2019 providing in detail all provisions
for the Odd-Even Rule along with punishments..
4. Mr. Kehta , a Comedian , protested against this Rule and also put RTI applications for the
reasoning and other information about Odd-Even Scheme and got information about the
initial disagreement of Council of ministers and LG of Kushal Pradesh.
5. He then put up an inappropriate and Obscene Satirical Sketch of Chief Minister of Kushal
Pradesh having affair with two women and trying to find a way to intimate with both of
them as the idea for Odd-Even Rule.
6. Proceedings were initiated by police against Mr. Kehta for Obscenity and Indecent
Representation Of Women .
7. Mr. Kehta , Approached the High Court of Kushal Pradesh seeking two different Reliefs ,
namely , Quashing of FIR against him and to declare Odd-Even Scheme as violative of
fundamental Rights and Thus declaring the rule unconstitutional.
8. Both of his prayers were rejected and his petition was dismissed.
9. Mr. Kehta has then approached this Hon'ble court to appeal against the same .

STATEMENT OF ISSUES

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(1) Is the petition maintainable before the Hon’ble Supreme Court of Indistan?
(2) Is the Odd-Even scheme implemented by the Govt. of NCT violative of the fundamental
rights under the Constitution of Indistan?
(3) Does the satirical sketch uploaded by Mr. Kehta amounts to obscenity and indecent
representation under the Criminal Laws of Indistan?
(4) Whether the consultation by Lt. Governor with the Council of Ministers was constitutionally
full and proper?

SUMMARY OF ARGUMENTS

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1. Whether this Present case is maintainable in this Hon’ble Court?

1. The Counsel on the behalf of Respondent humbly submitted before this hon’ble court that
the laws and provisions of the statue are very clear and no scope of this case is in the eye
of a law, hence it is very clear that the case is non Maintainable in this Hon’ble court.

2. The odd-even scheme implemented by the govt. Of NCT violative of the fundamental rights
under the constitution of Indistan?
The counsel on behalf of the respondent most humbly and respectfully submits before
this hon’ble court that the Odd-Even Rule implemented by the Govt. of NCT is not in
violation of any fundamental rights as enshrined in Part III of the Constitution but
actually protects them.

3. Whether the satirical sketch uploaded by Mr. Kehta amounts to obscenity and indecent
representation under the criminal laws of indistan ?
It is humbly contented before this hon’ble court that the sketch made by Mr. Kehta
amounts to Obscenity under the IT Act 2000 , and also amounts to offence under
Indecent Representation of Women (Prohibition) Act 1989.

4. Whether the consultation by lt. Governor with the council of ministers was
constitutionally full and proper?
It is humbly Submitted before this hon'ble court that the Odd-Even Rule implemented by
LG of Kushal Pradesh was constitutionally proper and complete and the rule was
implemented only after the Odd-Even Scheme was presented to LG by the Council of
ministers themselves.

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ARGUMENTS ADVANCED

ISSUE-I

WHETHER THIS CASE IS MAINTAINABLE IN THIS HON’BLE COURT?

1. It is humbly submitted before this Hon’ble SC of Indistan that the Special Leave Petition
filed by the petitioner is not maintainable as Special Leave cannot be granted when
substantial justice has been done by the HC of Khushal Pradesh and no exceptional or
special circumstances exist for the case to be maintainable. Also, the present case
involves no substantial question of law and inference is based on pure question of fact
which is entitled to be dismissed.

[1.1] NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXIST AND

SUBSTANTIAL JUSTICE HAS BEEN DONE.

2. It is humbly contended by the respondent that the petitioner must show that exceptional
circumstances exist and that if there is no interference, it will result in substantial and
grave injustice and the case has features of sufficient gravity to warrant review of the
decision appealed against, on merits. Only then the Court would exercise its overriding
powers under Art. 136.1 Special leave will not be granted when there is no failure of
justice or when substantial justice is done, though the decision might suffer from some
legal errors.2

1
M.P Jain, Indian Constitutional Law, 576 (16th ed., Lexis Nexis Butterworth Wadhwa, Nagpur 2011); See also, The
Constitution of India, 1950.
2
Council of Scientific and Industrial Research v. K. G. S. Bhatt, (1989) 4 SCC 635; See also, State of H. P. v. Kailash
Chand Mahajan, AIR 1992 SC 1277.

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3. In the case at hand, no exceptional and special circumstances have been shown by the
petitioner. The HC of Khushal Pradesh in the present case, has very judiciously decided
and rejected the Petition. 3

4. Further, it is not possible to define the limitations on the exercise of the discretionary
jurisdiction vested with the SC under Art. 136. But, being an exceptional and overriding
power,4naturally it has to be exercised sparingly with caution only in special
andextraordinary situations.5The provision does not give right to the party to appeal to the
SC rather it confers a wide discretionary power on the SC to interfere in suitable cases6.

[1.2] INFERENCE FROM A PURE QUESTION OF FACT IS IN ITSELF A FACT

5. It is contended by the Respondent that the appeal doesn’t involve any substantial question
of law rather it involves pure question of fact and hence, is not maintainable. Questions
of fact cannot be permitted to be raised unless there is material evidence which has been
ignored by the HC or the finding reached by the court is perverse.7
6. Generally, on finding of fact, no interference should be made.8 Even in cases where
conclusions are reached without proper discussion, yet if it involves finding on fact, no
interference of SC is called for.9 Further, if the conclusion is based on some evidence on
which subsequently a conclusion could be arrived at, no question of law is raised.10

[1.2.1] NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED

3
Moot Proposition, ¶ 17
4
Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666.
5
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65; See also, Arunalchalam v. Sethuratnam, AIR 1979
SC 1284; See also, H.M. Seervai, Constitutional Law of India, VOL. 1, 252 (4th ed., Universal Law Publishing,
Allahabad 2010).
6
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65
7
Union of India v. Rajeshwari& Co., AIR 1986 SC 1748; See also, Gurbakhsh Singh v. State of Punjab, AIR 1955 SC
320.
8
CIT v. MaganlalChaganlal (P) Ltd., (1997) 11 SCC 557
9
AmarchandSobhachand v. CIT, AIR 1971 SC 720.
10
CIT v. Orissa Corp Ltd., AIR 1986 SC 1849.

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7. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right
attached to the litigation.11 Being a substantive statutory right, it has to be regulated in
accordance with law in force at the relevant time. It cannot be decided merely on
equitable grounds.
8. As per the test laid down under Sir Chunilal Mehta & Sons Ltd. v Century Spinning &
Mfg. Co. Ltd., 12to determine whether a substantial question of law is involved is an open
question in the sense that there is no scope for interference by the HC with a finding
recorded when such finding could be treated to be a finding of fact; 13 if the question has
been well- settled by the Highest Court and it is merely a question of applying the settled
principles in determination of the matter.14
9. Re-appreciation of evidence and substitution of the findings by the HC is
impermissible.15Hence, it is submitted that on account of the fact that the position is well-
settled by this Court in its earlier decisions,16 no substantial question of law is involved in
the present case.

[1.3] THE PETITIONER HAS NOT EXHAUSTED ALTERNATIVE REMEDIES

AVAILABLE TO HIM

10. The doctrine of exhaustion of alternative remedies guides the practice and procedure of
the SC in the exercise of its power conferred under Art. 136. As per the principle, all the
statutory remedies would have to be exhausted before approaching the SC under its
special jurisdiction, unless special circumstances can be shown to convince the court that
it must allow the appeal.17 In the instant matter, the petitioner’s petition filed in the HC of
Khushal Pradesh was rejected, so he approached this Hon’ble Court through a
SLP18without resorting to the appeal to the court. which was available to him as an

11
Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234
12
Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314.
13
M. Janardhana Rao v. Joint Commissioner of Income Tax AIR 2005 SC 1309.
14
Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., AIR 1962 SC 1314; See also, Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179.
15
Commissioner of Income Tax v. P. Mohanakala, (2007) 210 CTR 20.
16
Malabar Industrial Co. Ltd. v. CIT,(2000) 243 ITR 83.
17
British India Steam Navigation Co. Ltd. v. Jasjit Singh Additional Commissioner of Customs, AIR 1964 SC 1451.
18
Moot Proposition, ¶18.

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alternative forum and as his Fundamental Right and no special circumstances existed to
forego the statutory process of appeal.
11. The petitioner also had an option to resort to the jurisdiction of HC by appeal to the
Court’s higher bench or application for revision. The respondents humbly submit that
keeping in view the precedents laid down by the Apex Court,19 the petitioner’s failure to
exhaust the available alternative remedies renders the current SLP non-maintainable.

19
OnkarlalNandlal v. State of Rajasthan, (1985) 4 SCC 404

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ISSUE-II

IS THE ODD-EVEN SCHEME IMPLEMENTED BY THE GOVT. OF NCT

VIOLATIVE OF THE FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF
INDISTAN?

It is humbly submitted before this honorable supreme court that the odd even Rule , which was
implemented by Lieutenant governor by the power given in Section 115 of Motor Vehicle Act
1988 read with Section 2(41) of Motor Vehicle Act 1988 is not violative of the fundamental
rights enshrined under Part - III of our Constitution , as falsely alleged by the Petitioner .It is
submitted that the following rights are alleged to be violated by the Odd- Even scheme and it is
explained how they are not only completely constitutional but also that the odd-even Rule is
actually implemented in the favor of fundamental rights of the citizens of Kushalpur .

2.1. Article 14 ( Equality before Law ) & Article 15 (Prohibition of discrimination on

grounds of religion, race, caste, sex or place of birth) -

It is humbly submitted that the odd even scheme does not violate the right to equality and right
agsint discrimination based on sex as stated by the petitioner for exempting only women driven
vehicles or women carrying a child with them.

The Odd-Even scheme has provided the exemption to women on the basis of equity or as we say
, equality among equals. Article 14 20of Indian constitution law says that all are equal in the eye
of law. But no one can prevent the state from making any special provisions for women and
children as given in Article 15(3)21 of our Constitution. For a examples, special seating
arrangement for women in buses, trains, metros trains is not unconstitutional. It was held by
court that “reservation of some seats for women in college.”

20
Equality before law - The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth
21
Nothing in this article shall prevent the State from making any special provision for women and children

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The equal protection of law guaranteed by article 14 does not mean that all laws must be general
in character. It does not mean that the same laws should apply to all persons. It does not mean
that every law must have universal application for, all person are not, by nature, attainment or
circumstances in the same position. The varying need of different classes of persons often
require separate treatment. From the very nature of society there should be different places and
the legislature controls the policy and enacts laws in the best interest of the safety and security of
the state. In fact, identical amount to unequal circumstances would amount to inequality.

In the case of Indra Sawhney 22the right to equality is also recognized as one of basic features of
Indian constitution. Article 14 applies to all person and is not limited to citizens. A corporation,
which is a juristic person, is also entailed to the benefit of this article. This concept implied
equality for equals and aims at striking down hostile discrimination or oppression of inequality.
In the case of Ramesh Prasad v. State of Bihar, AIR 1978 SC 327 It is to be noted that aim of
both the concept, ‘ Equality before law’ and ‘ Equal protection of the law’ is the equal Justice.

Underlying priniciple:-

The Principle of equality is not the uniformity of treatment to all in all respects. it only means
that all persons similarly circumstanced shall be treated alike both in the privileges conferred and
liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there
should be no discrimination between one person and another.

The Equal protection of laws Guaranteed by Article 14 does not imply that all laws should be
general in character. It does not mean that all laws should apply to all persons. It does not mean
that every law must have universal application for , all persons are not , by nature , attainment or
circumstances in the same position. The varying needs of different classes of persons often
require separate treatment as given in Chiranjeet Lal v. Union of India.23

22
AIR 1993 SC 477
23
AIR 1951 SC 41

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In Abdul Rehman v. Pnito24 , it is given that , From the very nature of society , there should be
different laws in different places and legislature controls the policy and enacts laws in the best
interest of safety and security of the state. Infact identical treatment in unequal conditions would
amount to inequality.

Therefore , the exemption provided to women in the odd even rule is to provide safety to the
Women and children who cannot be obliged to use public transports or use any other alternative
because of the unfortunate amount of crimes and discrimination they face.

Similarly , the exemption to 2 wheeled vehicles are provided based on the principle of equity as
equal rules may be appiled only among equals and therefore , 2 wheelers are exempted from this
rule because of the economic conditions of a person travelling only by 2 wheelers .

2.2. Article 21 (Right to life and liberty ) -

It is humbly submitted that the Odd-Even scheme is alleged to be in violation of the Right to life
and personal liberty of individual protected under Article 21 25of Constitution of Indistan on the
basis of incomplete knowledge stating that it endangers life of patients in emergency situations
and such.

It is submitted that in the notification issued by the Office of Lieutenant Governor on 23rd
September 2019 , It is clearly stated that all emergency vehicles are granted exemption from the
rule and also personal vehicles carrying patients shall be exempted on trust basis.
Therefore the Rule does not violate the Right to Life of any individual but on the contrary , the
odd Even rule protects it.

24
AIR 1951 Hyd 28
25
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according
to procedure established by law

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It is submitted that the level of pollution was at peak at the time , the notification was issued .
Due to reasons , in which vehicular pollution was also at top. Several news reports reported the
pollution level to be so high that breathing in it for a day was equivalent to smoking dozens of
cigarettes . Schools and colleges had to be closed as children experienced burning in eyes and
problem breathing and this had been a widespread matter in our country and media and the
citizens of Kushal Pradesh had been suffering from it

In a very similar case in New Delhi of India , where a number of petitions were clubbed while
making a judgment on the constitutionality of the Odd-Even rule , the Court observed that the
Rule did not violate any fundamental rights and that court did not need to intervene in a
legislation as long as it is not unconstitutional. As the problems caused by the peak level of
pollution posed a emergency like situation for health and life of people and emergency actions
were needed. The court also observed that according to the reports handed over to the court ,
there was a decrease in the peak pollution in the winter season of the year Odd-even was
implemented compared to the earlier years.26

In Subhash Kumar v. State of Bihar 27 also , It was held that the right to enjoyment of pollution
free water and air for full enjoyment of life was held as a part of right to life under Article 21.

This shows that time and again difficult decisions have been taken by courts in order to preserve
the health of people from pollution and climate change. The current scenario is no different and
begs for hard actions which may prove to have a little discomfort but ultimately provide for
better health of the citizens to which the Govt. of Kushal Pradesh is bound to care.

2.3. ARTICLE 19(1)(G) - to practise any profession, or to carry on any occupation, trade
or business-

26
Shweta Kapoor v. NCT of Delhi and Ors. W.P.(C) 11398/2015 & CM No.30014/2015 , Nipun Malhotra v. NCT
of Delhi through chied Secretary W.P.(C) 11711/2015 etc.
27
1991 AIR 420

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It is humbly submitted that the Odd even Scheme does not contradict or violate the freedom to
Practice any profession ,occupation , trade or business provided under Article 19(1)(g) of our
Constitution as the restrictions of the Odd-even Scheme only apply on Non-Transport 4 wheeler
vehicles and all emergency vehicles , handicapped people and 2 wheelers etc. And all public
transport such as bus , train etc are available to the citizens , ensuring there is proper
transportation facilities for all citizens of Kushal Pradesh.

28
also in M.C Mehta v. UOI Also famous as the Taj trapezium case, in which industries were
asked to shift from the use of coke/ coal to natural gas. For those who can’t will have to stop
functioning.

We understand that there will be a little discomfort to some people in this process but the results
of this Odd-even Scheme are of greater good of Health of all people of Kushal pradesh , which is
threatened by the Smog caused by Air pollution which is causing damage as much as dozens
cigarettes to every citizen everyday.

The implementation of the Odd-Even scheme may have caused hardship to a section of the
society, however, the power of judicial review cannot be extended to determine the correctness
of such a policy decision or to find out whether there could be more appropriate or better
alternatives. As held in BALCO Employees’ Union Vs. Union of India 29, it is neither within the
domain of the Courts nor the scope of the judicial review to embark upon an enquiry as to
whether a particular public policy is wise or whether a better public policy can be evolved as
suggested by the petitioners.

28
1987 AIR 1086
29
(2002) 2 SCC 333

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The views on the efficacy of such government policy may differ, however, the question is
whether the policy decision warrants interference by this Court in exercise of power of judicial
review. The law is well settled that on matters affecting policy this Court will not interfere unless
the policy is unconstitutional or contrary to statutory provisions or arbitrary or irrational or in
abuse of power, since the policy decisions are taken based on expert knowledge and the Courts
are normally not equipped to question the correctness of the same. The scope of judicial enquiry
is therefore confined to the question whether the decision taken by the Government is against
any statutory provision or it violates the fundamental rights of the citizens or is opposed to the
provisions of the Constitution of India. [Vide Parisons Agrotech (P) Ltd. v. Union of India 30,
Manohar Lal Sharma v. Union of India31, Union of India v. Dinesh Engg. Corpn.32]

30
(2015) 9 SCC 657
31
(2013) 6 SCC 616
32
(2001) 8 SCC 491

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ISSUE-III

DOES THE SATIRICAL SKETCH UPLOADED BY MR. KEHTA AMOUNTS TO

OBSCENITY AND INDECENT REPRESENTATION UNDER THE CRIMINAL LAWS
OF INDISTAN ?

It is humbly submitted before this hon'ble court that , the given Satirical Sketch uploaded by Mr.
Kehta amounts to several offences such as Obscenity , Defamation and Indecent Representation
of Women under several statutes.

3.1. The Sketch uploaded by Mr. Kehta amounts to Obscenity under Section 67 of the
Information Technology Act.

It is humbly submitted that , the following offence of obscenity comes under Information
Technology Act as it was published in electronic Form by uploading it on internet. Under No
circumstances such an offence should be tried under Section 292 of Indian Penal Code as
Section 8133 of IT Act states that the act will have overriding effect.

Publication is defined as "the action of making publicly known". The Supreme court Held in
Bennet Coleman and Co. v. Union of India34 that" publication means dissemination and
circulation". In the context of internet , publication includes , dissemination , storage and
transmission of data or information in electronic form.

The Definition of Obscenity was first laid out in Regina v. Hicklin35 . The statutory
interpretation of the word obscene as given under the Obscene Publications Act, 1857 was the
33
Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
34
(1972) 2 SCC 788
35
(1868) 3 QB 360

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issue. According to the Queen’s Bench, all the materials depraving and corrupting the minds
open to immoral influences was considered obscene, regardless of its literary merit. Here, the
intention was considered immaterial. If any portion of the work or publication was considered
obscene even if that portion was out of context, it didn’t matter, the entire work could be
outlawed. The Constitution provides that the fundamental rights of freedom of Speech are
subjected to reasonable restrictions to prevent indecency in public.

In 1965 judgement of Ranjit D. Udeshi v. State of Maharashtra36, the Supreme court established
a modified version of the Hicklin test as the test for obscenity in India. The supreme court had
observed that the test for Obscenity laid down by Cockburn , C.J. should not be discarded . It
held :

" That the test of obscenity to adopt in India is that the obscenity without a preponderating social
purpose or profit cannot have the constitutional protection of free speech and expression and
obscenity in treating sex in a manner appealing to the carnal side of human nature or having that
tendency. The obscene matter in a book must be considered by itself and separately to find out if
it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose
minds are open to influences of this sort and into whose hands the book is likely to fall . This
connection of the interests of our contemporary society and particularly the influence of the
books on it must not be overlooked."

It is also submitted that even in the Miller test that originated from the Miller v. California37, the
important requirements include that the material be viewed in the context of relevant local
"contemporary community standards".

The petitioner , Mr. Kehta has in his sketch used cartoonised image of the Chief Minister of
Kushal pradesh with Two women , depicting Kissing and hugging with one and intimate acts
with another and the women abusing. The sketch depicting intimate acts with the second woman
especially was disgusting in depicting women and it questions their modesty.

36
1965 AIR 881
37
413 U.S. 15

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In Samaresh Bose v. Amal Mitra38 , the Court held that , " the concept of obscenity would differ
from country to country depending on the standards of morals of contemporary society".

The sketch incites prurient , immoral and lascivious influence as it depicts intimate acts with
two women by the Chief minister of Kushal Pradesh , which is an immoral representation of
women and lascivious obscene act for our Indian audience. Along with the acts of intimacy
with two women and them abusing each other published on the internet with the large audience
of India , who according to our culture find this immoral and obscene as it influences the mind of
people in that way.

The intimate acts depicted in the sketch do not serve any social purpose whatsoever.

The sketch is uploaded to internet thus making its reach to all ages and types of audience in India
, including children who will be wrongly affected by it.

3.2 . The Sketch uploaded by Mr. Kehta amounted to offence under Indecent
Representation of Women (Prohibition) Act 1986.

The Indecent Representation of Women (Prohibition) Act 1986, disallows obscene portrayal of
girls or women. Section 2(C) of the Indecent Representation of Women (Prohibition) Act,
1986 characterizes obscene portrayal of girls or women as “the delineation in any way of the
figure of a girl or women, her frame or body or any part thereof so as to have the impact of being
disgusting, or slanderous to, or stigmatizing ladies, or is probably going to debase, degenerate or
harm the general population morale quality or ethics.”

In Chandra Rajakumari And Anr. vs Commissioner Of Police 39 It was stated that "The
preamble of the said Act reads : An act to prohibit indecent representation of women through
advertisements or in publications, writings, paintings, figures or in any other manner and for
38
(1985) 4 SCC 289
39
1998 (1) ALD 810

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matters connected therewith or incidental thereto. This rejects the contention that this Act
concerns only advertisements, publications, writings, and paintings and no other item including
beauty contest. The expression is so categoric and clear that the Act is intended to prohibit
indecent representation of women in any manner and intended to the matters connected therewith
and incidental thereto. That should directly attract beauty contests if they indecently represent a
woman. The prefactory note, viz., the statement of objects and reasons indicate that the law
relating to obscenity in the country codified in Sections 292 to 294 of IPC are not sufficient to
deal with the growing problems of indecent representation of woman in various methods
including publications and in particular advertisements etc., denigrating woman and derogatory
to women."

In Mr. R. Basu Vs. National Capital Territory of Delhi and anr 40. the court said that "Section 4
of the act provides that no person shall produce or cause to be produced, sell, let to hire,
distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing,
painting, photograph, representation or figure which contains indecent representation of women
in any form. Thus indecent representation of women even in film is prohibited."

ISSUE-IV

40
2007CriLJ4254

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WHETHER THE CONSULTATION BY LT. GOVERNOR WITH THE COUNCIL OF

MINISTERS WAS CONSTITUTIONALLY FULL AND PROPER?

It is humbly Submitted before this Honorable Court , that the Odd even Rule , implemented by
LG of Kushal Pradesh was Constitutionally proper and correct and there is no dispute between
LG of Kushal Pradesh and Council of Ministers of Kushal Pradesh.

4.1 The administrator of Kushal Pradesh has the power to implement restrictions on
vehicles and traffic under Motor Vehicle Act 1988.
It is humbly submitted that the Odd-Even rule was implemented by the LG of Kushal Pradesh by
using his power under Section 11541 of Motor Vehicle Act 1988 , read with Section 2(41)42 of
Motor Vehicle Act 1988 , Which provides the power of making restrictions to motor vehicles to
the administrator of a Union Territory .

The LG of Kushal Pradesh Being the admnistrator of Kushal Pradesh had the authority to
implement the Rule constitutionally and legally and therefore the implementation of the Odd-
Even Rule was a just and needed emergency action taken by the LG of Kushal Pradesh .
In a very similar case In India , the Odd-Even Scheme was Taken into court using the Same
provisions in their NCT and in a petition filed against it , The court Observed that the Rule was
used justly by the LG in the interest of health of people with respect to the pollution level. 43

4.2 There is no dispute between LG and Council of Ministers of Kushal Pradesh

41
Power to restrict the use of vehicles.—The State Government or any authority authorised in this behalf by the
State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the
nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such
exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified
class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road
and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected
under section 116 at suitable places: Provided that where any prohibition or restriction under this section is to
remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but
such local publicity as the circumstances may permit, shall be given of such prohibition or restriction.
42
“State Government” in relation to a Union territory means the Administrator thereof appointed under article 239
of the Constitution
43
Shweta Kapoor v. NCT of Delhi and Ors. W.P.(C) 11398/2015 & CM No.30014/2015 , Nipun Malhotra v. NCT
of Delhi through chied Secretary W.P.(C) 11711/2015 etc.

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It is most humbly contended that , The consultation was proper and the Odd-Even rule was
completely constitutional as there is no dispute between administrator of Kushal Pradesh and
Council of Ministers of Kushal Pradesh . Therefore , no violation of Article 239AA (4)44 has
occurred.
Further it is submitted that , the report of the RTI stating that Council of ministers walking out
on the decision of LG of Kushal Pradesh to readily implement the Odd-Even Scheme does not
result in dispute between the two. There was a mutual consent among the Administrator and
council of ministers on implementing the Odd-even Scheme and it was implemented by the
administrator with Immediate effect due to the alarming rate of Air pollution causing Smog in
Kushal Pradesh which begged for immediate action. Which was also agreed upon by council of
ministers of Kushal Pradesh.

It is contended before this hon'ble Supreme Court that , if there had been any dispute between
the two bodies of NCT Kushal Pradesh Govt. , they would have approached the courts or the
President for the same. As has been done in Govt. of NCT of Delhi v. Union of India and Anr.
45
and K.Lakshminarayanan vs The Union Of India46 and Devji Vallabhbhai Tandel and
others v. Administratorof Goa, Daman and Diu and another.47
Mere assumption that a Rule or Ordinance being unconstitutional cannot be held as a ground for
proving the said rule to be Unconstitutional if there was no actual violation of Constitutional
provisions were made.

PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is most

humbly and respectfully prayed before this Hon’ble Supreme Court to Uphold the decision of

Hon'ble High Court of Kushal Pradesh and declare that:

44
There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in
the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the
exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make
laws, except in so far as he is, by or under any law, required to act in his discretion.
                        Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers
on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision
given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any
case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such
action or to give such direction in the matter as he deems necessary.
45
CIVIL APPEAL NO. 2357 OF 2017
46
W.P.No.28890 of 2017
47
(1982) 2 SCC 222

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1. The Present case is non- maintainable in the Hon’ble court.

2. The Odd-Even Rule is not in violation of Fundamental Rights protected by

Constitution of Indistan.

3. The Sketch made by Mr. Kehta amounts to obscenity and indecent representation

of Women.

4. The Odd-Even Rule is perfectly valid and constitutional.

And any other order which this Hon’ble Court may be pleased to grant in the interest of justice,

equity and good conscience. All of which is most humbly and respectfully submitted.

Date…… Counsels for the Respondent

Place:

17