Beruflich Dokumente
Kultur Dokumente
1. Index of Authorities 3
3. Statement of Jurisdiction 6
5. Statement of Issues 10
13. Prayer 40
LIST OF ABBREVIATIONS
CASES
1. K. Gopalan v. The State of Madras, AIR 1950 SC 20
2. A. R. Antuley v. R. S. Naik, AIR 1988 SC 1531
3. Ajit Kumar Barat v. Secretary, Indian Tea Association & Ors., (2001) 5 SCC 42
4. Baradakanta Mishra v. The Registrar of Orissa High Court & Anr., 1974 SCC (1) 374
5. Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316
6. Common Cause v. Union of India, 2015 (7) SCC 1
7. DDA v. Skipper Construction Co. (&) Ltd., (1990) 24 SCC 622
8. Debi Prasad v. Emperor, AIR 1943 P.C. 202
9. Delhi Judicial Service Association TisHazari Court v. State of Gujarat, 1991 AIR SC 2419
10. Durga Shankar v. Raghuraj, AIR 1954 SC 520
11. E.S.P. Rajaram v. Union of India, AIR 2001 SC 581
12. Indian Express Newspaper v. Union of India, (1985) 1 SCC 641
13. J. Mohapatra and Co. and Another v. State of Orissa and Anr., (1984) 4 SCC 103
14. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
15. Lala Ram v. Supreme Court Of India & Ors., 1967 SCR (1) 14
16. Manak Lal v. Dr. Prem Chand, [1957] SCR 575
17. P.K. Ghosh, I.A.S. and Anr. v. J.G. Rajput, AIR 1996 SC 513
18. Pallav Sheth v. Custodian & Ors., [2001] SC 381
19. Pritam Pal v. High Court of M.P., AIR 1992 SC 904
20. P.N. Duda v. P. Shiv Shankar, (1988) 3 S.C.C. 167
21. R.C. Tobacco Private Ltd. & Anr. v. Union of India & Anr., (2005) 7 SCC 725
22. R.N. Dey And Others v. Bhagyabati Pramanik & Others, (2004) SCC 400
23. Smt. Maneka Gandhi v. Union of India and Anr., AIR 1978 SC 597
24. Sukhdev Singh v. Hon’ble C.J.S. Teja Singh and the Hon’ble Judges of the Pepsu High Court
at Patiala, AIR 1954 SC 186
25. Subramanian Swamy v. CBI, (2014) 8 SCC 682
26. Supreme Court Bar Association v. Union of India & Anr., (1998) 4 SCC 409
27. State of Rajasthan v. Prakash Chand, AIR 1998 SC 1344
28. Tirupati Balaji Developers Pvt. Ltd. and Ors. v. State of Bihar and Ors., 2004 Supp(1) SCR
494
STATUTES AND RULES
BOOKS
ASIM PANDYA, THE CONTEMPT OF COURT ACT, 1971 (2ND ED. 2010)
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (13TH ED. 2001)
JUSTICE P.S. NARAYANA, THE SCHEDULED CASTE AND SCHEDULED TRIBES (PREVENTION
OF ATROCITIES) ACT, 1989 (10TH ED.2017)
M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7TH ED.2014)
IYER, LAW ON CONTEMPT OF COURT (5TH ED.2011)
SAMARADITYA PAL, THE LAW OF CONTEMPT (3RD ED.2001)
NAYAN JOSHI, CONTEMPT OF COURTS & THE LAW (2ND ED.2014)
G.C.V. SUBBA RAO, COMMENTARY ON CONTEMPT OF COURTS ACT,1971 (3RD ED.1999)
REPORT
LEXICONS
The petitioners approach the Hon’ble Supreme Court of Indiana under Article 32 of Constitution
against the order restraining electronic and print media from publishing statements and orders of
Justice Swami.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of Ind
STATEMENT OF FACTS
BACKGROUND
The Republic of Indiana is a Federal Democratic Republic and Union of States with three tier
Judicial System. Under the Constitution High Court [hereinafter referred to as HC] and Apex
Court[hereinafter referred to as] are Court of Records.
Mr. Swami born in a Dalit family, after practicing advocacy for 17 years was appointed as a
Judge in Dravida Nadu High Court in 2009 by President of Indiana on recommendation of
Collegium headed by the then Chief Justice of Indiana[hereinafter referred to as CJI]. Mr. Swami
had unprecedented career as an advocate but his progressive judgements were debated.
The instances that constitute the present case are listed below:
2. February 2016 1. Swami J. launched a tirade against the Chief Justice of Dravida
Nadu HC accusing him of corruption in a letter to the Apex
Court of Indiana whereby he filed a complaint against the
Chief Justice of Dravida Nadu HC and sought protection under
the Whistle Blowers Protection Act, 2011.
5. January 2017 Swami J. wrote several letters to the Prime Minister’s Office, the
Secretariat of Lok Sabha, the Secretariat of Rajya Sabha and the
Central Bureau of Investigation requesting an investigation against
the judges of the Dravida Nadu HC and the Apex court of
corruption.
7. March 10, 2017 1. The SC issued a bailable warrant and allegedly took away
judicial work and powers from him.
2. Swami J. exercising jurisdiction under Article 226 of the
Constitution read with Section 482 of Cr.P.C., 1973 invoked
his inherent powers under the appropriate criminal provisions
of the SC/ST Atrocities Act, 1989 and other penal provisions
against the judges of the Apex Court and directed the Secretary
General of the Lok Sabha and Rajya Sabha to place the entire
facts of the case before the speaker for the appropriate enquiry
under the Judge’s Enquiry Act, 1969 and to file a report within
7 days before HC of East Mengal (Polkata Bench).
3. Swami J. requested the President of Indiana to recall the
bailable warrant illegally issued by the Apex Court on
10.03.2017 and to lift the non-work allotment.
It was followed by string of orders by Apex Court and Swami J.
who continued to address press and claimed he was mentally
disturbed and requested apology from Apex Court.
8. April 2017 1. The SC ordered Swami J. to appear before the Medical Board
for his mental fitness check-ups. However, Swami J. sentenced
Chief Justice of Indiana and six other Apex Court judges to 5-
year rigorous imprisonment after holding them guilty under
SC/ST Atrocities Act, 1989 and amended Act of 2015 and for
the contempt of the court and restrained the judges from
leaving the country.
2. On the same day, 7 judges bench of the Apex Court comprising
of all the Senior Judges initiated suo moto proceedings against
Swami J. and thus, sentenced him to 6-month imprisonment on
charges of criminal contempt.
3. The Apex Court also restrained the print and electronic media
from publishing Swami J.’s contemptuous statements and
orders.
4. The SC ordered immediate arrest of Swami J. – since then he
has been evading and is absconding. Swami J. retired after
attaining the age of 62 years.
The Apex Court in the interest of justice clubbed the following three matters given their
interconnection and listed them for final hearing:-
i. Writ Petition No. 45 of 2017 filed by the News Channel Indiana 24*7 on behalf of all
leading media against the order restraining the print and electronic media publishing
Justice Swami’s contemptuous statements and orders.
ii. SLP No. 567 of 2017 filed by the seven Judges of Hon’ble Apex Court against order
passed by Justice Swami sentencing 7-judges for 5-year rigorous imprisonment under
SC/ST Atrocities Act, 1989 and amended Act of 2015 and contempt of the Court.
iii. SLP No. 987 of 2017 filed by counsel on behalf of Justice Swami for quashing of the
order passed by Hon’ble Apex Court under Contempt proceedings.
IMS Unison University, 5th NMCC, 2017
ISSUES RAISED
(i) Whether the Writ Petition no. 45 of 2017 filed by News Channel Indiana 24*7 on
behalf of all leading media houses is maintainable under article 32 of the
Constitution?
(ii) Whether the impugned the Supreme Court order violates freedom of speech and
expression of the Petitioner?
(i) Whether the Appellants be granted special leave to appeal by Supreme Court of
India against the impugned order of High Court of East Mengal?
(ii) Whether the Petitioners are guilty under Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989?
(iii) Whether the petitioners are guilty of contempt of High court of East Mengal?
(i) Whether the SLP no. 987 of 2017 is maintainable under Article 136 of
Constitution of Indiana?
(ii) Whether the conviction for contempt of the Supreme Court of Indiana suffers
from patent illegality?
(iii) Whether the Petitioner is guilty for commission of contempt of the Supreme Court
of Indiana?
IMS Unison University, 5th NMCC, 2017
SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE WRIT PETITION NO. 45 OF 2017 FILED BY NEWS CHANNEL
INDIANA 24*7 ON BEHALF OF ALL LEADING MEDIA HOUSES IS MAINTAINABLE UNDER ARTICLE
32 OF THE CONSTITUTION?
It is humbly submitted that the Writ Petition No. 45 of 2017 filed by News Channel Indiana
24*7 on behalf of all leading media houses is maintainable under Article 32 of the Constitution
of Indiana (herein after referred as the Constitution). Article 32 provides the right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part
III of the Constitution. The right to access to the Supreme Court under Article 32 is the
Fundamental Right itself. It is contended that the petitioners have the locus standi, there is
violation of fundamental right, Supreme Court has the jurisdiction to hear the present case and
alternative remedy not a bar to maintainability.
ISSUE 2: WHETHER THE IMPUGNED THE SUPREME COURT ORDER VIOLATES FREEDOM OF
It is humbly submitted that the impugned Supreme Court order violates the freedom of speech
and expression of the Petitioner and other media houses under Article 19(1)(a) of the
Constitution. It is the first condition of liberty which opens up channels of free discussion of
issues, formation of public opinion on social, economic, political and judicial matters, free
propagation and interchange of ideas. It ensures dissemination of information which would
help debate on the matters of public concern. It is contented that Freedom of Press is an
essential right to freedom of speech and expression under Article 19(1)(a) of the Constitution,
it is the duty of judiciary to protect freedom of press, the restriction imposed by the judiciary is
not reasonable and the burden to justify prohibition lies on respondent.
IMS Unison University, 5th NMCC, 2017
It is humbly submitted that the Writ Petition No. 45 of 2017 filed by News Channel Indiana 24*7
on behalf of all leading media houses is maintainable under Article 32 of the Constitution of
Indiana (herein after referred as the Constitution). It is contended that the petitioners have the
locus standi [1.], there is violation of fundamental right [2.], Supreme Court has the jurisdiction
to hear the present case [3.], alternative remedy not a bar to maintainability [4.].
1. THE PETITIONER HAS THE LOCUS STANDI, THAT IS, AN ENFORCEABLE FUNDAMENTAL
RIGHT MUST BE PRESENT
1.1.In order to have the Locus Standi, the person of body approaching must have enforceable
fundamental rights.1 The various freedoms under Article 19 of the constitution are necessary not
only to promote certain basic rights of the citizens but also certain democratic values in and the
oneness and unity of the country.
1.2.Generally, a person whose Fundamental Right is affected has standing to file a petition under
Article 32 of the Constitution. The petitioner, along with the media houses whom it is
representing in this case is aggrieved by the order of the Hon’ble Apex Court with respect to the
freedom of speech and expression promised under Article 19(1)(a) of the Constitution.
1
State of Haryana v. RamKumar Mann, (1997) 3 SCC 321
2
Hindi Hitrashak Samiti v. Union of India, AIR 1990 SC 851
3
All citizens shall have the right to freedom of speech and expression.
3. THE SUPREME COURT HAS THE JURISDICTION TO HEAR THE PRESENT MATTER
3.1. The jurisdiction of the Supreme Court under Article 32 is an important and integral part of the
basic structure of the Constitution, as it provides effective remedy for the enforcement of the
Fundamental Rights if they are violated.4 The Supreme Court is laid with the responsibility to
protect and guarantee the Fundamental Rights and therefore, it cannot refuse to entertain
applications seeking protection against infringement of such rights.5
[3.1] judicial decisions are subject to fundamental rights
3.1.1. Supreme Court, cannot be allowed to breach fundamental right of people to whom they are
granted. Supreme Court held6 that: ‘.. any decision or order of the court which violates
fundamental rights shall be void and this court can correct its own error brought to its notice.
A judgment or order passed by this court will not be open to a writ of certiorari, but there
should be no hesitation in correcting an error in exercise of inherent powers.’
[3.2] Writ petition can be allowed against the impugned order
3.2.1. There have been instances7 where writ petition was filed against a Supreme Court order and was
entertained by it. The judiciary while exercising administrative powers is subjected to the
Fundamental Rights, but the position while adjudicating legal disputes is not settled till now.8
However, a progressive approach was adopted in Common Cause v. Union of India9, wherein it
was observed that the judicial organ of the state is subject to similar guidelines as a legislature
and an executive, all three being integral parts of one state within Article 12 of the Constitution.
Therefore, some fundamental rights can be enforced against it.
3.2.2. A determination is no determination if it is contrary to the constitutional mandate of Art. 19.10
An order which infringes a fundamental freedom passed in violation of the audi alteram partem
rule is a ‘nullity’. 11 Further, the Supreme Court in Asit Kumar Kar v. State of West Bengal &
Ors.12, held that the precedent in Rupa Ashok Hurra case13 and other cases14 on similar issue
only stated that Article 32 of the Constitution cannot hold as invalid a judgment of the Supreme
Court by treating it as a nullity. However, these judgments do not say that the Apex Court
4
The Fertilizer Corporation Case, AIR 1981 SC 344
5
Romesh Thappar v. State of Madras, AIR 1950 SC 124
6
AIR 1988 SC 1531
7
Supreme Court Bar Association v. Union of India & Anr., (1998) 4 SCC 409
8
Prem Chand Garg v Excise Commissioner, U.P. 1963 Supp. (1) SCR 885
9
2015 (7) SCC 1
10
Nawabkhan Abbaskhan v. The State Of Gujarat 1974 SCR (3) 427
11
Ajit Kumar Barat v. Secretary, Indian Tea Association & Ors, (2001) 5 SCC 42.
12
(2008) 17 SCC 491.
13
Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002) 4 SCC 388
14
Supra 10
cannot pass a recall order when that order has been passed without hearing a party. In this case,
the Court treated the writ petition under Article 32 as a recall petition because the order was
passed without giving opportunity of hearing to the persons aggrieved thereby.15
3.2.3. In the present case, the Supreme Court issued the ‘gag order’ to the print and electronic media
in general. The generality of the order indicates that no specific media house(s) was the party to
the case and therefore was not heard. This amounts to breach of important principle of natural
justice - audi alteram partem.
3.2.4. There should be no hesitation in correcting an error in exercise of inherent jurisdiction if it
comes to the notice of the court,16 irrespective of the rules provided to permit the of petition.17
15
See also All Bengal Licensees Association v. Raghabendra Singh & Ors., 2007 (11) SCC 374
16
Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
17
Supreme Court relied upon Issac’s case (1984) 3 All ER 140 in Para 111 of AR Antuley case
18
Daryo v. State of Uttar Pradesh, AIR 1961 SC 1457
19
1967 SCR (1) 14.
20
Ajit Kumar Barat v. Secretary, Indian Tea Association & Ors., (2001) 5 SCC 42.
ISSUE II: WHETHER THE IMPUGNED SUPREME COURT ORDER
VIOLATES FREEDOM OF SPEECH AND EXPRESSION OF THE
PETITIONER?
It is humbly submitted that the impugned Supreme Court order violates the freedom of speech
and expression of the Petitioner and other media houses under Article 19(1)(a) of the
Constitution. It is contented that Freedom of Press is an essential right to freedom of speech and
expression under Article 19(1)(a) of the Constitution [1.], it is the duty of judiciary to protect
freedom of press [2.], the restriction imposed by the judiciary is not reasonable [3.] and the
burden to justify prohibition lies on respondent [4.].
21
Sakal papers v. Union of India, AIR 1962 SC 305; See also, Indian Express Newspaper (Bombay) P. Ltd. v.
Union of India,AIR 1986 515 at 527; Brij Bhushan v. Delhi, AIR 1950 SC 129; Romesh Thappar v. State of Madras
AIR 1950 SC 124; Printers (Mysore) Ltd. v. Assistant CTO (1994) 2 SCC 434
22
New York Times v. Sullivan 376 U.S. 254.
23
Supra Footnote
24
Indian Express Newspaper v. Union of India (1985) 1 SCC 641.
of every single citizen of this country. It is humbly submitted that dissemination of information
facilitates right to know [2.1], Media is a means to disseminate essential information [2.2].
[2.1] Dissemination of complete information facilitates “Right to Know”
2.1.1. The right to know, receive and impart information has been recognized within the right to
freedom of speech and expression.25 Right to know has some broad special purposes to
serve:26 1) It helps to attain self-fulfillment. 2) It assists in the discovery of truth. 3) It
strengthens the capacity of an individual in participating in decision-making. 4) It provides a
mechanism by which it would be possible to establish a reasonable balance between stability
and social change, etc.To achieve all these objects it is important to secure every possible
means of getting information to enable people make an informed decision. In the present case,
the blanket ban on media shocks the conscience of this country.
[2.2] Media is a means to disseminate essential information
2.2.1.The freedom of speech and expression includes liberty to propagate not one’s views only but
also the views and opinions of others27. Therefore, the ban that has been imposed strikes at the
right to disseminate information related to the issue.
2.2.2.An analysis of cases28 reiterate that freedom of speech corresponds to freedom of press and
freedom of press lies rests on the presumption that widest possible dissemination of
information from diverse and antagonistic sources is essential to the welfare of people.
Therefore, it is submitted that in order to facilitate healthy public discussion, media has the
right to publish the statements and orders of Swami J..
25
State of U.P. v. Raj Narain 1975 SCR (3) 333
26
Bennett Coleman and Co. Ltd. v. Union of India, 1973 AIR 106. ; Marsh v. Alabama (1945) 326 US 501.
27
Srinivas v. State of Madras, AIR 1931 Mad 70
28
Bharti Press v. The Chief Secretary of Govt. of India, AIR 1951 Pat 12 relying on Romesh Thapar v. State of
Madras AIR 1960 SC 124 and Brij Mohan and Anr. v. State of Delhi AIR 1950 SC 129.; Abrams v. United States
250 US 616 (1919) refered to in Subramaniam v. Union of India (2016) 7 SCC 221
29
The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal & Anr.,1995 SCC(2)161
30
(2012) 10 SCC 603.
the “Media Guidelines Case”, the Supreme Court carved out a specific exception to the rule
against prior restraint:
i. It had inherent powers under the Constitution to prohibit, statements being made in the
media which would prejudice or obstruct or interfere with the administration of justice in a
given case pending in the Supreme Court or the HC or in the subordinate courts.
ii. It could only pass “postponement orders” (i.e., temporary stopping the media from
reporting on a particular event) in order to ensure a fair trial.
iii. Given that the postponement orders curtail the freedom of expression of third parties, such
orders have to be passed only in cases in which there is real and substantial risk of
prejudice to fairness of the trial.
3.1.2. From the prima facie perusal of Media guidelines case33 , it is quite obvious that none of these
pre-conditions for imposing prior restraint are even remotely satisfied.
i. There is no matter sub-judice – by the same order in which it imposed the media blanket
ban as the Court had already convicted him of contempt. Consequently, the prospect of
prejudicing an ongoing trial and thereby interfering with the administration of justice – the
basis of the judgment in Media Guidelines case – does not exist.
ii. It is not a temporary ban: The order is neither narrow in scope, nor in its duration: it is, in
the true sense of the word, a blanket gag order. Consequently, the prohibitory order does
not fall in line with the well established precedent in Media Guidelines case.
[3.2] Pre-censorship is illegal per se
3.2.1. Pre-censorship connotes to prohibition even before publication by state. It amounts to a
restriction on liberty of press. This court in a case34, it was held that no measure can be pursued
which would have the effect of imposing pre-censorship, curtailing the circulation or restricting
the choice of publishing material.
3.2.2. Fear of serious injury cannot alone justify suppression of free speech35. In the landmark
judgment of R. Rajagopal v. State of T.N. 36
, Supreme Court held that: ‘The state has no
authority in law to impose a prior –restraint upon publication of any material. Public
authorities who apprehend that they or their colleagues may be defamed, cannot prevent the
press from publication of such material.”
31
Blackstone
32
AIR 2012 SC 3829
33
Ibid
34
The Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578
35
Para 101 of Subramaniam Swami v. Union of India ; see also Para 38 of Whiteny v. California 71 L Ed 1095
36
(1994) 6 SCC 632 also known as Auto Shankar case
3.3.Therefore, imposing a blanket ban on reporting anything one individual might say, in advance, is
arbitrary. Everything pertaining to the issue is already in public domain and to facilitate the
matter and public debate it is very important to publish any future statement given by the Swami
J.. Even if it could possibly be argued that the Court had the power to do this under Article 129
read with Article 142, the impugned order clearly violates Article 19(1)(a) as the order has been
given in disregard of the guidelines laid down by this very court in Media Guidelines case 37 and
Auto Shankar case38.
3.4.There are no contempt charges against media: In the present case the media is not alleged to
have committed contempt. Therefore, the court cannot prohibit press from exercising its
Freedom of press when it is only a means to propagate the ideas of an individual.
3.5.The prohibition does not pass test of reasonability: In Papnasam case39 , the Supreme Court
has stated that the following principles and guidelines should be kept in view while considering
the constitutionality of any act on ground of reasonability of restriction :The restriction must not
be arbitrary or of an excessive nature so as to go beyond the requirement of felt need of the
society and object sought to be achieved.There must be a direct and proximate nexus or
reasonable connection between the restriction imposed and the object sought to be achieved.
3.6.No fixed principle can be laid down which may have universal application in all cases and a
restriction imposed on a fundamental right must not be unbridled. Any restriction is unreasonable
if it is not in proportion to the mischief sought to be removed (Doctrine of proportionality).
3.7.In the present case, the substantial information and statements which are related to the issue of
Shri Swami J. is already in public domain and people have the knowledge of such issue but to
properly exercise it requires the press to publish the opinion and statements of Swami J. to
circulate it among people. One sided opinion is always dangerous.
Therefore, the restriction imposed is a blanket ban and is excessive, arbitrary and does not pass
the test for reasonability. It is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his rights of making a
choice, free & general discussion of public matters is absolutely essential.
37
Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603.
38
Supra
39
Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 : (1995) 1 SCC 501
IMS Unison University, 5th NMCC, 2017
SUMMARY OF ARGUMENTS
It is contended that the appellants have the Locus Standi, the Supreme Court has the
jurisdiction under Article 136 of the Constitution of India to hear the matter, the impugned
order is vitiated by arbitrariness, shocks the conscience of the court and breaches principles of
natural justice, perverse and erroneous findings of facts itself constitute substantial question of
law, the impugned order infringes fundamental rights of appellants, the burden of proof is on
the Respondent.
ISSUE 2: WHETHER THE PETITIONERS ARE GUILTY UNDER SCHEDULED CASTES AND
It is humbly submitted that the seven judges of the Hon’ble Supreme Court are not guilty under
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,. It is contended that
the Petitioners are not guilty under Section 3 of the Atrocities Act, 1989, actions and orders of
the Apex Court are justifiable, there is lack of evidence on record to prove the Petitioners and
that there has been violation of the principles of natural justice.
ISSUE 3: WHETHER THE PETITIONERS ARE GUILTY OF CONTEMPT OF HIGH COURT OF EAST
MENGAL?
It is humbly submitted that the 7 judges of Hon’ble Supreme Court including the Chief Justice
of the Apex Court are not guilty of contempt of High Court of East Mengal. It is contended the
High Court of East Mengal had no jurisdiction to try the contempt case under the Contempt of
Courts Act, 1971, and no authority under Article 215 of the Constitution. Further, Orders of the
7 Judges of the Apex Court do not amount to Contempt and there has been abuse of contempt
proceedings.
IMS Unison University, 5th NMCC, 2017
It is humbly submitted that the present Special Leave Petition [hereinafter referred to as SLP]
filed by petitioner in The Supreme Court of Indiana [ hereinafter referred to as SC] from the
impugned fallacious order of the High Court of East Mengal [ hereinafter referred to as HC] is
maintainable under Article 136 of Constitution. It is contended that the petitioners have the
Locus Standi [1.], the Supreme Court has the jurisdiction under Article 136 of the Constitution of
India to hear the matter[2.], the impugned order is vitiated by arbitrariness, shocks the
conscience of the court and breaches principles of natural justice [3.], perverse and erroneous
findings of facts itself constitute substantial question of law [4.], the impugned order infringes
fundamental rights of petitioners [5.] the burden of proof is on the Respondent [6.].
2. THE SUPREME COURT HAS THE JURISDICTION TO HEAR THE PRESENT MATTER
2.1.It is submitted that, Article 136 of the Constitution states that, “Notwithstanding anything in this
chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any
40
Chandra Bansi Singh v. State of Bihar AIR 1984 SC 1767.
41
Esher v. State A.P. (2004) 11 SCC 585.
42
Ram Kishan Fauji v. State of Haryana 2017 SCC OnLine SC 259.
judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India. ”
2.2.In the case of Chandra Bansi Singh v. State of Bihar43 it has been adjudged by this Hon’ble
Court that the Supreme Court is not only a court of law but also a Court of equity.44
3.1.In situations arising where the HC is shown to have completely failed in appreciating the true
procedure and its findings are erroneous, perverse and result in the miscarriage of justice 45, the
Supreme court is conferred with powers under Article 136 along with order XVI rule 4(1)(c) of
the Supreme Court rules, 1966, to adjudicate on additional ground.
[3.1] The impugned order of punishment is arbitrary and suffers from procedural irregularity
3.1.1.If the procedure undertaken by a court is vitiated by some illegality or irregularity of
procedure46, shocks the conscience of the court47 or if by disregard to forms of legal process or
some violations of principles of natural justice or otherwise, substantial miscarriage of justice
has been done, SC does not hesitate in invoking its extraordinary powers.48
[A.] Prescribed procedure vehemently disregarded with ulterior motive
3.1.2.The whole order is nothing but a hoax order issued by the then Swami J. without complying
with the requirements to be fulfilled in Atrocities Act and rules made thereunder.49
3.1.3.In present case, order of conviction has been given without ordering any investigation required
by Rules made which shows that the order has been given as a retaliatory measure for
proceedings against the contemnor. Hence, showing mala fide intention of Swami J.
3.1.4.Further, Investigation by the competent authority is as important as a proper investigation. The
Atrocities Rules, 1995.50Any conviction without following such requirement is liable to be set
aside.51 No such requirement has been complied with before conviction. The order was passed
in a hurry flouting all the principles of criminal justice and jurisprudence. Therefore, the ends
of justice require SC to grant leave in view of arbitrariness of the order passes due to defective
procedure adopted.
43
(1984) 4 SCC 316.
44
Durga Das Basu, Shorter Constitution of India, 890 (14TH ED. 2009).
45
State of Punjab v. Jugraj Singh, 2002 3 SCC 234.
46
Bahri v. State of Punjab AIR 1994 SC 2420.
47
Nihal Singh v. State of Punjab AIR 1965 SC 26.
48
Arunachalam v. P.S.R. Setharathnam AIR 1979 SC 1284.
49
Vishnu Shankar Tiwary v. The State Of Bihar & Ors. on 8 February, 2017 (Patna HC).
50
Rule 7
51
State of Madhya Pradesh v. Chunnilal alias Chunni Singh-2010(II) MPJR(SC) 249.
[B.] Disregard of principles of natural justice
3.1.5.Principles of natural justice are humanizing principles intended to invest law with fairness and
to secure justice.52 To ensure equal treatment and to exclude arbitrary power the requirement of
natural justice was read into the statutes and applied to particular fact situations.53
3.1.6.The first principle is that 'No man shall be a judge in his own cause' means the deciding authority must
be impartial and without bias. It implies that no man can act as a judge for a cause in which he himself
has some Interest, may be pecuniary or otherwise.54 In one of the cases order of punishment was
held to be vitiated, as the officer who was in the position of a complainant/accuser/witness,
could not act as an enquiry officer or punishing authority.55
3.1.7.In the present case, irrespective of the fact whether the charges under Atrocities Act, 1989 are
proved or not, Swami J. could not have punished petitioners as he himself was involved as a
complainant, as an aggrieved and such excessive exercise of powers under section 482 Cr.P.C.
is not justified and has to be used sparingly for ends of justice. It is not a rule but an
exception.56 The inherent power has to be exercised sparingly57 In the present case, the alleged
issue could have been referred to special courts58, and there were no impending circumstances
that prevented such reference and therefore dealing with the issue himself by Swami J. cannot
be justified as such to any extent as provisions of this Act are exclusive and exhaustive.59
3.1.8.Furthermore, the impugned order suffers from violation of another principle of natural justice,
that is, Audi Alterum Partem which means no man should be condemned unheard. This principle
of natural justice operates as implied mandatory requirements, non- observance of which
invalidates the exercise of power.60 The fallacious order of conviction has been passed in
unexplainable haste where no such show cause notice was given to the petitioners, violating the
well established principle of notice justice leading to miscarriage of justice. Therefore, the
impugned order is manifestly perverse and caused substantial and grave miscarriage of justice to
the petitioners as it violates Article 22(1) of the Constitution.
52
Maneka Gandhi v. Union of India, A.I.R. (1978) SC 597. 625.
53
Minerva Mills v. Union of India AIR 1980 SC 1789.
54
M/s Builders Supply Corporation v. The Union of India AIR 1965 SC 1061.
55
State of UP v. Mohammad Nooh AIR 1958 SC 86
56
Som Mittal v. Government of Karnataka, (2008) 3 SCC 753
57
R.K. Lakshmanan v. A.K. Srinivasan and Another AIR 1975 SC 1741; Kurukshetra University and Another v.
State of Haryana and Another AIR 1977 SC 2229 State of Haryana v. Bhajan Lal AIR 1992 SC 604; AIR 1996
SC 2983; 2000 Crl.L.J. 824
58
section 14 of Atrocities Act, 1989
59
Section 20 of Atrocities Act, 1989
60
Wade (1977) at page 395.
4. PERVERSE AND ERRONEOUS FINDINGS OF FACTS ITSELF CONSTITUTE SUBSTANTIAL
QUESTION OF LAW
4.1.A finding of facts may give rise to a substantial question of law, inter alia, in the event the
findings are based on no evidence or legal principles have not been applied in appreciating the
evidence, or when the evidence has been misread.61 In the present case, while passing impugned
order petitioners were not represented. The matter required adjudication which was not
conducted and findings of fact were lop-sided which itself is a substantial question of law.
4.2.[Arguendo] Leave can be granted even on the questions of fact. Wrong question leads to a
wrong answer. In such cases, even errors of facts can be the subject matter of judicial review
under Art. 136.62 It is open to the SC to interfere with the findings of the fact given by the HC, if
the HC has acted perversely or otherwise improperly.63
6. BURDEN OF PROOF
6.1.As per the general principles of Criminal Jurisprudence, the burden of proof in a proceeding lies
on that person who would fail if no evidence at all were given on either side.67 The Legislature
required 'intention' as an essential ingredient for the offence of Insult', "intimidation' and
"humiliation' of a member of the Scheduled Casts or Scheduled Tribe in any place within "public
view'. Offences under the Act are quite grave and provide stringent punishments, therefore,
Graver is the offence, stronger should be the proof.68
61
MadanLal v Mst. Gopi and Anr (1980) 4 SCC 255(SC); see also Narendra Gopal Vidyarthi v Rajat Vidyarthi
(2009) 3 SCC 287(SC); see also Commissioner of Customs (Preventive) v Vijay Dasharath Patel (2007) 4 SCC
118(SC); see also Metroark Ltd. v Commissioner of Central Excise, Calcutta (2004) 12 SCC 505(SC); see also West
Bengal Electricity Regulatory Commission v. CESC Ltd. (2002) 8 SCC 715(SC).
62
Cholan Roadways Ltd. v G. Thirugnanasambandam (2005) AIR 570 (SC).
63
Ganga Kumar Srivastava v State of Bihar (2005) 6 SCC 211(SC).
64
D.S. Nakara v. Union of India AIR 1983 SC 130; R.D. Shetty v. Airport Authority AIR 1979 SC 1628
65
E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 404
66
Maneka Gandhi v. Union of India, 1978 AIR 597.
67
Narayan Govind Gavate v. State Of Maharashtra. 1977 AIR 183.
68
Daya Bhatnagar And Ors. v. State, 109 (2004) DLT 915
ISSUE II: WHETHER THE PETITIONERS ARE GUILTY UNDER
SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT, 1989?
It is humbly submitted that the seven judges of the Hon’ble Supreme Court are not guilty under
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter
referred to as the Atrocities Act, 1989]. It is contended that petitioners are not guilty under
Section 3[1.], Actions and Orders of the Apex Court are Justifiable [2.], Lack of Evidence on
Record [3.], and there is violation of principles of natural justice [4.].
69
Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as per the
Amended Act of 2015)
70
Bimal Gorai v. State of West Bengal, (2012) 1 CHN 352(Cal) (DB).; M.L. Ohri & Others v. Kanti Devi, 2010(1)
Crimes 926 (P & H)
71
Harichandra v. State of M.P., (2011) 104 AIC 755 (Chhatt).
72
Section 3(1)(u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as per the
Amended Act of 2015)
no evidence on record to show that content of orders and the actions taken were to promote or
attempts to promote feelings of enmity, hatred or ill-will against Swami J. or members of the
said community in general.
73
E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, (1970) 2 SCC 325
74
Het Ram Beniwal v. Raghuweer Singh, (2017) 4 SCC 340
75
(1990) 24 SCC 622
76
E.S.P. Rajaram v. Union of India AIR 2001 SC 581; See also, Supreme Court Bar Assm. v. Union of India (1998)
4 SCC 409
3. LACK OF EVIDENCE ON RECORD
3.1.Imaginary allegations against conduct of Judicial Officer without having any material to
substantiate the same cannot be tolerated, inasmuch as, it not only brings into disrepute the entire
justice system but is also likely to cause serious erosion in the confidence of public in case such
tendency is not snuffed at the earliest77.
3.2.In present case, Swami J. has not substantiated the conviction order by any direct or
circumstantial evidences. Only explanations given in passing the impugned order are the
thoughts, biases, stereotype and reservationist approach of Swami J. which do not constitute any
sufficient evidence to substantiate conviction.
It is humbly submitted that the 7 judges of Hon’ble Supreme Court including the Chief Justice of
the Apex Court are not guilty of contempt of High Court of East Mengal. It is contended the
High Court of East Mengal had no jurisdiction to try the contempt case under the Contempt of
Courts Act, 1971 [1.], and no grounds to invoke Article 215 exist[2.]. Further, Orders of the 7
Judges of the Apex Court do not amount to Contempt [3.] and there has been abuse of contempt
proceedings [4.].
77
In Re Piyush Verma,A.D.S.J. v. Ajay Pandey, Advocate; In Re: Ajai Kumar Bhardwaj MANU/UP/1401/2015.
78
J. Mohapatra and Co. and Another v. State of Orissa and Anr (1984) 4 SCC 103.
1. NO JURISDICTION TO TRY THE CONTEMPT CASE UNDER THE CONTEMPT OF COURTS
ACT, 1971
1.1.Every case of criminal contempt under Section 15 shall be heard and determined by a Bench of
not less than two judges.79 The learned judge sitting singly has no jurisdiction to entertain or to
determine a case of contempt and the same could be entertained and determined by a Division
Bench of the HC.80 In the present case, the learned Swami J. suo motu sentenced the petitioners
to 5-year rigorous imprisonment in April, 2017 singularly amounting to gross violation of the
technicality in procedure as Section 18 of the said Act.
2. ARTICLE 215 OF THE CONSTITUTION CANNOT BE INVOKED IN ABSENCE OF CONTEMPT
2.1.The power under Article 215 can be exercised only in the presence of any of the grounds like
insinuations derogatory to the dignity of the Court which are calculated to undermine the
confidence of the people in the integrity of the Judges, an attempt by one party to prejudice the
Court against the other party tot the action, an act or publication which scandalizes the Court
attributing dishonesty to a judge in the discharge of his functions, etc. 81
2.2.In the case in hand, the order of the HC does not fit in any of the aforesaid grounds as later
contended, and therefore, it can be said that the HC had no jurisdiction to punish the 7 Judges of
the Supreme Court for contempt.
3.1.Contempt can be either civil or criminal82. In the present factual matrix, the 7 Judges of the
Supreme Court did nothing which makes them guilty of civil contempt or criminal contempt.
3.2.No civil contempt: Since no order was given by Swami J. before 10.03.2017, the question of
disobeying the same does not arise. Also, since on 10.03.2017, the Apex Court by its order took
away judicial work and powers from him, the subsequent orders by Swami J. were of no effect
for the want of capacity to issue them and therefore, its disobedience does not amount to the
contempt.
3.3.No criminal contempt: The judges of the Apex Court did not act, publish, express or represent in
any manner so to interfere with the administration of justice, scandalize the authority of the court
79
Section 18 of the Contempt of Courts Act, 1971
80
Chhaganlal Mittal v. Mohanlal Mittal1982 Cr.L.J. 2199 at p. 2201
81
Hira Lal Dixit v. State of Uttar Pradesh, AIR 1954 SC 743; Brahma Prakash v. State of Uttar Pradesh, AIR 1954
SC 10.
82
Section 2(b) of the Contempt of Courts Act, 1971
or prejudices the due course of any judicial proceeding. The suo moto contempt proceedings
against Swami J. initiated on 08.02.2017 under Article 129 does not amount to contempt as the
Court had sufficient material which persuaded it to form an opinion that contempt has been
committed. All the orders83 were issued by the Supreme Court under its inherent power under
Article 142 and 129 of the Constitution are to secure the ends of justice
3.4.Thus, actions taken by the Supreme Court were taken with the intention to preserve the dignity
of the judicial system and the administration of justice and not to create distrust among the
people to poison the fountain of justice.84 Therefore, the orders and actions of the Supreme Court
do not satisfy the tenets of criminal contempt.
4. THERE HAS BEEN ABUSE OF POWERS TO PUNISH FOR CONTEMPT UNDER ARTICLE 215
4.1. “The weapon of contempt is not to be used in abundance or misused. Discretion given to the
Court is to be exercised for maintenance of Courts dignity and majesty of law.” 85
4.2.In the present case, no act, conduct, order or publication by the 7-judges of the Supreme Court
amount to the contempt of the HC of East Mengal. The proof of such allegation is absent in the
present case. Further, the very that Swami J. sentenced the petitioners to 5-year rigorous
imprisonment soon after the order of the Apex Court asking him to prove his medical fitness
before the Medical Board, indicates that he took this order as a mere insult and in retaliation of
the same, he passed the sentence. It is contended that Swami J. used the power to punish for
contempt under the Contempt of Courts Act, 1971 and Article 215 of the Constitution to satisfy
his own interest and therefore, he misused this power.
Therefore, since the orders of the Apex Court do not amount to contempt as they were given
under its inherent power to secure the dignity of the individual, and since the contempt case was
determined by a single judge – Swami J. of the Hon’ble HC of the State of East Mengal, who
had no jurisdiction as such in the present matter and even used the punishment for contempt as a
tool to take revenge for his own insult, it can be submitted that the HC had no jurisdiction to
punish the 7 Judges of the Supreme Court for contempt and the sentence should be set aside.
83
Para 7 and 8 of Moot Proposition
84
Sukh Raj v. Hemraj, AIR 1967 Raj. 203 at p. 206
85
R.N. Dey And Others v. Bhagyabati Pramanik & Others, (2000) 4 SCC 400.
IMS Unison University, 5th NMCC, 2017
SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE SLP NO. 987 OF 2017 IS MAINTAINABLE UNDER ARTICLE 136 OF
CONSTITUTION OF INDIANA?
It is humbly submitted that the present Special Leave Petition filed by Swami J. in The Supreme
Court of Indiana] arising from the conviction in for criminal contempt pronounced by this court
in exercise of original jurisdiction is maintainable under Article 136 of Constitution. It is
contended that the appellants have the Locus Standi, the Supreme Court has the jurisdiction
under Article 136 of the Constitution of India to hear the matter, the impugned judgment is
vitiated by arbitrariness due to breach of principles of natural justice leading to grave miscarriage
of justice, Jurisdiction of sc under article 136 can always be invoked when a question of law of
general public importance arises and the issues involves substantial question of law.
ISSUE 2: WHETHER THE CONVICTION FOR CONTEMPT OF THE SUPREME COURT OF INDIANA
SUFFERS FROM PATENT ILLEGALITY?
It is humbly submitted that the Respondent exercised its power to punish for contempt
unreasonably and without jurisdiction and therefore, the Petitioner is cannot be held guilty for
contempt. It is contended that there has been procedural irregularities, violation of principles of
natural justice, and that the conviction of a sitting High Court Judge was improper.
It is humbly submitted that the Petitioner is not liable for the commision of contempt of the
Supreme Court of Indiana. It is contendedn that the contempt power should be exercised
sparingly, the Petitioner has not committed contempt under the Contempt of Courts Act, 1971
read with Article 19(1)(a) of the Constitution of India, there has been misuse of contemot power
and that the guilt of the Petitioner hasn’t ben prooved beyond reasonable doubt.
IMS Unison University, 5th NMCC, 2017
It is humbly submitted that the present Special Leave Petition [hereinafter referred to as SLP]
filed by Swami J. in The Supreme Court of Indiana [ hereinafter referred to as SC] arising from
the conviction in for criminal contempt pronounced by this court in exercise of original
jurisdiction is maintainable under Article 136 of Constitution. It is contended that the petitioners
have the Locus Standi [1.], the Supreme Court has the jurisdiction under Article 136 of the
Constitution of India to hear the matter[2.], The impugned judgment is vitiated by arbitrariness
due to breach of principles of natural justice leading to grave miscarriage of justice [3.],
Jurisdiction of sc under article 136 can always be invoked when a question of law of general
public importance arises. [4.], the issues involves substantial question of law [5.]
2. THE SUPREME COURT HAS THE JURISDICTION TO HEAR THE PRESENT MATTER
2.1.It is humbly submitted that the Supreme Court in the present case is not barred from granting a
leave for reconsideration of the matter at hand due to pressing circumstances of the case.
2.2.Reasonable interpretation of the term ‘court’ will include Supreme Court. The fact that the
constitutional makers themselves did not provide for any limitation itself is evident of the fact
that the interpretation of the term can extend to general meaning unless the constitution itself
provides for any limitation.
86
Chandra Bansi Singh v. State of Bihar AIR 1984 SC 1767
87
Esher v. State A.P. (2004) 11 SCC 585
2.3.Supreme Court while dealing with an SLP88, it was held that, ‘the word ‘courts’ is used to
designate those tribunals which are set up in an organized state for administration of justice. By
administration of justice is meant the exercise of judicial power of the State to maintain and
uphold the rights and to punish wrongs.’ ’To be a Court, the person or persons who constitute it
must be entrusted with judicial functions.89 Therefore, Supreme Court is covered.
88
Harinagar Sugar Mills Ltd. v. Shyam Sundar AIR 1961 SC 1669
89
AIR 1950 SC 188; See also McDonald’s Plymouth County Trust Co. 126 U.S. 263
90
Mahendra Sari Emporium (II) v. G.V. Shrinivasa Murthy (2005) 1 SCC 481
91
Harjeet Singh v. Raj Kishore AIR 1984 SC 1238
92
AIR 1954 SC 520
93
Dayanand v. Nagraj AIR 1976 SC 2183; See also Order XL of Supreme Court Rules, 1966
94
Sivaygeshwara Cotton Press Panchaksharappa M. AIR 1962 SC 413
justice the Supreme Court can list the case for hearing by a larger bench and recall the order of
conviction.95
95
S. Jamaldeen v. HC of Madras (1998) 2 SCC 705; See also DURGA DAS BASU, SHORTER CONSTITUTION, 629 (
13th Ed. 2001); M.S. Ahlawat v. State of Haryana AIR 2000 SC 767; DURGA DAS BASU, SHORTER CONSTITUTION,
689 ( 13th Ed. 2001)In Kushalbhai Ratanbhai Rohit & Ors v. The State of Gujarat (SLP (Crl.) No.453 of 2014) the
Bench comprising of Justices B.S. Chauhan, J. Chelameswar and M.Y. Eqbal took a view that in certain
circumstances the Order can be recalled and altered even.
96
Nihal Singh v. state of Punjab AIR 1965 SC 26
97
Dicey’s Rule of Law enshrined in Article 14 of Constitution of Indiana.
III. And, Supreme Court judges can also hold other such judges in contempt.
4.3.Therefore, it is submitted that the present SLP contains questions of law of public importance
and therefore suitable for being heard.
It is humbly submitted that the Respondent exercised its power to punish for contempt
unreasonably and without jurisdiction and therefore, the Petitioner is cannot be held guilty for
contempt. It is contended that there has been procedural irregularities [1.], violation of principles
of natural justice [2.] and that the conviction of a sitting HC Judge was improper [3.].
98
Sir Chunilal Mehta and Sons, Ltd. v Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314(SC).
99
Keshwananda Bharti v. State of Kerala, AIR 1973 SC
1. PROCEDURAL IRREGULARITIES
1.1. The judgment by the Apex Court sentencing Swami J. suffers from several procedural
irregularities. The main procedural irregularities witnessed in the impugned judgment are
violation of the Principles of Natural Justice[2.]
1.2.There was no capacity of the 7 Judges of the Apex Court to pass the judgment on account of they
being sentenced to 5-year rigorous imprisonment under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 – because the judgment passed by the HC of East
Mengal will in fact, be effective inter partes until it is successfully avoided or challenged in
higher forum.100
2. VIOLATION OF PRINCIPLES OF NATURAL JUSTICE
2.1.These principles are regarded as potential instruments to ensure justice and fair play. 101 The two
seminal and traditional principles of natural justice are ‘Nemo judex in causa sua’ (no man shall
be a judge in his own cause) and ‘Audi alteram partem’ (hear the other side). In the present case,
these two principles of natural justice are blatantly violated as contended hereunder.
100
State of Kerala v. M. K. Kunhikannan Nambier, (1996) 1 SCC 435.
101
Maneka Gandhi v. Union of India (1978) 1 SCC 248
102
G. Sarana v. University of Lucknow, AIR 1967 SC 2428
103
Manak Lal v. Dr. Prem Chand [1957] SCR 575; See also, Rattan Lal Sharma v. Managing Committee, Dr. Hari
Ram Higher Secondary School AIR 1993 SC 2155
had ‘legal interest’ in the Petitioner in the nature of ill-will towards the Petitioner. The
Respondents had pre-conceived prejudicial notion against the Petitioner.
104
Union of India v. T. R. Verma AIR 1957 SC 882
105
Tirupati Balaji Developers Pvt. Ltd. and Ors. v. State of Bihar and Ors. 2004 Supp(1) SCR 494
106
P.N. Duda v. V. P. Shiv Shankar & Others 1988 SCR (3) 547
107
Prem's Judicial Dictionary, Vol. I (this source of renowned and has been referred in several cases viz. S.
Sundaram Pillai, Etc v. V.R. Pattabiraman Etc., 1985 SCR (2) 643; International Coach Builders Ltd vs Karnataka
State Financial Corpn., etc, AIR 2003 SC 2012
108
Black's Law Dictionary
109
Prem's Judicial Dictionary, Vol.II
rivalry. In the present factual matrix, what the Respondents couldn’t have done under theory and
law, they did it in practice. The Respondents violated the basic axiom of the Constitution –
“What one cannot do directly, one cannot do indirectly.”
3.5.Thirdly, the Apex Court in State of Rajasthan v. Prakash Chand110, held that, “it is a fundamental
principle of our jurisprudence and it is in public interest also that no action can lie against a
Judge of a Court of Record for a judicial act done by the Judge. Also, the word ‘Judge’ in
Section 16 does not include the Judges of the Supreme Court and HCs.111
3.6.Fourthly, Section 77112 of IPC, 1860 affords immunity from criminal action against judges in
respect of any bona fide act of judges acting judicially. Therefore, the Petitioner cannot be held
guilty for contempt for any judgment or order passed by him.
It is humbly submitted that the Petitioner is not liable for the commision of contempt of the
Supreme Court of Indiana. It is contendedn that the contempt power should be exercised
sparingly [1.], the Petitioner has not committed contempt under the Contempt of Courts Act,
1971 read with Article 19(1)(a) of the Constitution of India [2.], there has been misuse of
contemot power [3.] and that the guilt of the Petitioner hasn’t ben prooved beyond reasonable
doubt [4.].
1. EXCEPTIONAL EXERCISE OF CONTEMPT POWER
1.1. It is appropriate to bear in mind the adage that it is good to have power of giant, but not good to
use it always.113 Undoubtedly, the contempt of Court Act, 1971 vests a very powerful weapon
rests in the hands of the law courts through the statute, for larger interest114 and power to punish
for contempt is rare species of judicial power which by its very nature calls for the exercise with
great care and caution.115
110
AIR 1998 SC 1344
111
Harish Chandra Mishra & Ors. v. The Hon’ble Mr. Justice S. Ali Ahmed, AIR 1986 Pat. 65
112
Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or
which in good faith he believes to be, given to him by law.
113
Suresh Chandra Poddar v. Dhani Ram, (2002) 1 S.C.C. 766 at p. 770.
114
Prem Surana v. Addl. Munsif and Judicial Magistrate, (2002) 6 SCC 722.
115
Bal Kisan Giri v. State of U.P., (2014) 7 SCC 280; Prag Das v. P.C. Agarwal. 1975 Cr. L.J. 659 at p. 661 (All.).
1.2. Therefore the same care and caution was expected to be taken by the Respondent while
exercising its Contempt Jurisdiction to convict the Petitoner for criminal contempt of the
Supreme Court of Indiana.
116
Merriam Webster Dictionary (referred in many cases viz. Deepali Gundu Surwase vs Kranti Junior Adhyapak &
Ors.)
117
In the matter of Bhola Nath Chaudhary, A.I.R. 1961 Pat. 1 at p. 8.
118
Guljari Lal, In re, 1988 M.P.L.J. 725 at p. 730,731; Rex.. v. R. S. Nayyar, A.I.R. 1950 All. 549.; Rex v. C.B.S.
Nayyar, A.I.R. 1950 All. 549.
119
1991 SCC P-655
120
Section 21 of Indian Penal Code, 1860.
121
Moot Proposition Para 3
2.2.3. However, when no substantial attempts were made, and a subsequent complaint was filed by
Swami J. in Apex Court against the Chief Justice of Dravida Nadu HC for corruption and
sought protection under Whistle Blowers Protection Act, 2011.122As a result of which transfer
order of Swami J. was passed which definitely was not an appropriate course of action for the
corruption complaint. After having ample of opportunities to explain the actions taken by the
Petitioner, they never justified them. Even when letters of grievances were sent to PMO, the
Secretariat of Lok Sabha and Rajya Sabha and also to CBI on corruption123, Supreme Court
bench chose to initiate contempt proceeding rather than deal with the circumstances.
2.2.4. In the amended provision124 enables the Court to permit justification by truth as a valid defence
in any contempt proceeding if it is satisfied that such defence is in public interest and the
request for invoking the defence is bona fide.125 In present case, in reponse to the corruption
allegations raised by Swami J., requires appropriate action in the interest of the purity of the
judiciary and the court should have ordered an investigation into the matter. It can be inferred
from the contempt proceedings initiated against Swami J. that he is only targeted for seeking
investigation into the corruption in higher judiciary.
[2.4] Legitimate power exercised under Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989
2.4.1. The ‘Rule of Law’ is an essential part of the basic structure of the constitution, thereby
showing how the law is superior to all other authority of men and breach of rule of law,
amounts to negation of equality under Article 14 of the Constitution.126 The law of contempt
of court is not the law for the protection of judges or to place them in a position of immunity
from criticism.127No person whatever his rank, or designation may be, is above law and he
must face the penal consequences of infraction of criminal law. A magistrate, judge or any
other judicial officer is liable to criminal persecution for an offence like any other citizen.”128
2.4.2. Also, Section 77 of IPC, 1860 provides that anything done by a Judge when acting judicially
in the exercise of any power which is, or which in good faith he believes to be, given to him
by law is not an offence. Thus, in the present case, the Petitioner cannot be held guilty for
122
Moot Proposition Para 4
123
Moot Proposition Para 7
124
Section 13(b) as came to be amended by Act 6 of 2006
125
Subramanian Swamy v.. Arun Shourie (2014) 12 SCC 344.; Indirect Tax practitioners’ Association v. R.K. Jain,
AIR 2011 SC 2234
126
Subramanian Swamy v. CBI, (2014) 8 SCC 682.; Kesavananda Bharati v. State of Kerala AIR 1973 SC
127
Mohammed Yamin v. Om Prakash Bansal, AIR 1926 All. 623 at 625.
128
Delhi Judicial Service Association Tis Hazari Court v. State of Gujarat, 1991 AIR SCW 2419.
contempt for the judgment sentence of 5-year rigorous imprisonment of 7 Judges of the
Hon’ble Apex Court in the exercise of his judicial powers under Section 482 Cr.P.C. read
with Article 142 of the Constitution, the bona fides of which is never questioned.
2.4.3. Further, only because the Judges of Supreme Court are sentenced to 5-year imprisonment, that
per se does not amount to contempt as no Judges, even of the Apex Court are above law and if
they are aggrieved by the decision, the better remedy is to file an appeal or review challenging
it and not to punish the Petitioner for contempt.
3. MISUSE OF CONTEMPT POWER
3.1.The contempt jurisdication cannot be exercised for an oblique motive or create an undue pressure
on contemnor and such contempt proceedings would be liable to be dismissed with exemplary
costs.129 The Apex Court reiterated that the object of contempt proceedings is not to afford
protection to Judges personally from imputations to which they may be exposed as individuals
and constructive criticism is necessary to initiate reforms in the judiciary.130
3.2.Contempt powers in the present case have been used to get rid of a judge who wanted the
enquiry agasint the judges in legitimate manner.
Therefore, because the actions, letters and decisions of the Petitioner does not amount to
contempt and are genuine and bona fide allegations, fair criticism and truth, and because there
has been abuse of the power under Article 129, the Petitioner cannot be held guilty for the
conduct which the Respondents alleged to be contemptuous failed to prove beyond reasonable
doubt.
129
Tapan Kumar Dasgupta v. Indra Narayan Patra, 1999 (I) CLT 503.
130
Brahma Prakash Sharma and Others v. The State Of Uttar Pradesh, 1954 SCR 1169
IMS Unison University, 5th NMCC, 2017
PRAYER
Wherefore in light of the issued raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to adjudge and declare:
1. That the order restraining the print and electronic media from publishing Justice Swami’s
contemptuous statements and orders should be set aside.
Pass any other order or relief it may deem fit and proper, in the interest of Justice, Equity and
Good Conscience.
S/d__________________