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KERALA LAW ACADEMY CLASS MOOT

PRESENTED BEFORE
THE HON’BLE SUPREME COURT OF INDIA

Criminal Appeal No. ***/ 2019

In the matter of

SPEAKER, SASTHADESH ASSEMBLY & OTHERS

V.

HIGH COURT OF SASTHADESH

Upon Submission to the Hon’ble Chief Justice and his


companion justices of the Supreme Court of India

Counsels for Appellant:




{MEMORIAL ON BEHALF OF THE APPELLANT}

1
TABLE OF CONTENTS
Content Page No.
1. Abbreviations used 3
2. Index of Authorities 4-5
3. Statement of Jurisdiction 6
4. Statement of facts 10
5. Issues involved 11
6. Summary of Arguments 12-14
7. Written Pleadings 14-23
I. WHETHER THE CRIMINAL APPEAL FILED
UNDER ARTICLE 134 IS MAINTAINABLE?

II. WHETHER THE CONTEMPT PROCEEDINGS


INITIATED BY THE COURT AGAINST THE
SPEAKER AND OPPOSITION MEMBERS CAN BE
QUASHED?

III. WHETHER THE WARRANT ISSUED BY THE


SPEAKER CAN BE EXECUTED OR NOT?

8. Prayer 24

ABBREVIATIONS USED
Abbreviations Full Form

¶ Para/Paras

2
AIR All India Reporter

S. Section

UOI Union Of India

AO Assessing Officer

App. Appropriate

Del Delhi

Pg. Page

Ed. Edition

H.C High Court

Hon’ble Honourable

Dist. District

Diff. Difference

Kar. Karnataka

J&K Jammu and Kashmir

Guj Gujarat

Ltd. Limited

SC Supreme Court

SCR Supreme Court Reporter

Supp. Supplementary

S. Section

B/w Between

v. Versus

INDEX OF AUTHORITIES
CASES
 Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26

3
 Sadhu Singh v. Pepsu, AIR 1954 SC 271
 Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC); see also H.M. Seervai,
Constitutional Law of India (4th Ed. Vol. I 2010)
 State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840
 Tej Kiran Jain v. N. Sanjeeva Reddy, (1970) 2 SCC 272: AIR 1970 SC 1573.
 P.V.Narsimha Rao v. State (1998) 4 SCC 626

 K. Anandan Nambiar v. Chief Secretary, Government of Madras, AIR 1966 SC 657, 664:
(1996) 2 SCR 406
 Ansumali Majumdar v. State of W.B. AIR 1952 Cal. 632
 State of Karnataka v. Union of India (1977) 4 SCC 608, 654
 Indira Nehru Gandhi v.Raj Narain 1975 Supp.SCC 1, 47: AIR 1975 SC 2299
 Suresh V Punit, AIR 195 1 Cal 176
 State of Kerala V Sudarsana Bubu, 1983, KLT 764 (FBI at p.773
 M.S.M. Sharma V Shri. Krishna Sinha; AIR 1959, SC 395
 Ashwathy Manasewar v. Padmanabhan AIR 2012

LEGAL DATABASES
1. Manupatra

2. SCC Online

3. West Law

4. Hein Online

LEXICONS
rd
1. Aiyar Ramanathan P , Advanced Law Lexicon, 3 Edition, 2005, Wadhwa Nagpur.

th
2. Garner Bryana, Black‟s Law Dictionary,7 Edition,1999

BOOKS

 Dr. Das, Durga , “Constitutional Law of India”, 8th Edn. 2008

4
 M.P Jain ,”Indian Constitutional Law”, 7th edition ,1406

 Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths Wadhwa
Publication Nagpur

 Seervai H.M. , Constitutional law of India, 4 th Edition 2002, Volume 2, Universal Book
Traders.

 Shukla V.N , Constitution of India, 11th edition 2008, Eastern Book Company

STATEMENT OF JURISDICTION

5
THE APPELLANT HAS THE HONOUR TO SUBMIT BEFORE THE HON’BLE SUPREME
COURT OF INDIA, THE MEMORANDUM FOR THE APPELLANT UNDER ARTICLE 134
OF THE CONSTITUTION OF INDIA.

ARTICLE 134: Appellate jurisdiction of Supreme Court in regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has withdrawn
for trial before itself any case from any court subordinate to its authority and has in such trial
convicted the accused person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be made
in that behalf under clause ( 1 ) of Article 145 and to such conditions as the High Court may
establish or require

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear
appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in
the territory of India subject to such conditions and limitations as may be specified in such law

STATEMENT OF FACTS

6
‘Sasthadesh’ is a State in the Indian Union. The State owes its name to the popular deity ‘Sastha’
whose temples are found throughout the length and breadth of the State. The most sacred and
important ‘Sastha’ shrine is located in ‘Sapthagiri’ mountains. The majority of population in
‘Sasthadesh’ are Hindus by faith. The State is demographically distributed as follows: Hindus-
68%, Islamist-17% and Christians-15%. Being a Universally accepted deity every Sasthadeshi
cutting across caste and religion worshipped ‘Sastha’. Sapthagiri Sastha temple was open to all
religions and castes. However, women are denied entry to the temple during month of ‘Vrichika’
(November-December). This was a based on ancient custom and practice which was followed
from time immemorial. The High Court of ‘Sasthadesh’ is located at the port town of Cambay.
The present Chief Justice is John Cox. On March 15, 2016 friend of fair Sex (FoF), a social
action group, filed a petition before the honourable High Court of ‘Sasthadesh’ claiming a right
to entry for women to sapthagiri shrine during the month of Vrichika (November-December) and
declare the custom preventing entry unconstitutional, illegal and hence void. Considering the
importance of the case the Chief Justice in an exceptional move constituted a three member
bench consisting of Chief Justice himself, Justice Hameed and Justice Anju Mahendran to hear
the case. The people of Sasthadesh, especially the Hindus were very passionate Sastha devotees
and their belief in the customs of the temple were deep rooted and unshakeable. The very fact
that someone had challenged the customs of their shrine created a huge hue and cry in the State.
The office bearers of (FoF) started receiving threatening calls and warnings against their move.
Some miscreants in the cover of night began pelting stones against the offices of FoF and the
houses of its office bearers. Meetings were convened in different parts of the State, especially in
the vicinity of temple condemning the persons who initiated the case and the Courts which are
entertaining such immoral and frivolous cases. On August 15, 2018 after detailed hearing of all
aggrieved persons, the full bench of Sasthadesh High Court declared that the practice of
disallowing women in shrine of ‘Sapthagiri’ during the month of ‘Vrichika’ is illegal,
unconstitutional and hence void. The Court also invalidated a section 25 of Sasthasthan Temple
Administration Act, 1952 which had given legal sanctity to the impugned custom. The Court
observed that the custom is barbaric and it violates the dignity of women. The majority
judgement was pronounced by Justice Hameed and the others confirmed.

The pronouncement of the judgment was followed by outbreak of widespread sporadic violence
throughout the State. The ruling party also organised meetings against the Court decision and it
was addressed by several leaders of the party including Cabinet Ministers. The opposition party

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(LDP) members were more vehement in their attack of the High Court Judgement. In one such
meeting Mohan Gandhi criticised the judges of the High Court personally and referred to them as
the agents of countries hostile to India. Street meetings of S.S.S witnessed the burning of effigies
of the three High Court Judges and speakers attacking the judges using highly objectionable and
obscene language. The judges started receiving warning calls and letters which they handed over
to the police authorities. At this point of time, the Sasthadesh Assembly session started. The
Opposition Leader moved an urgent motion to discuss the Sapthagiri temple judgement and its
aftermath. This motion was allowed by the Speaker. Discussion on this motion witnessed
speakers after speaker vehemently attacking the judges of the High Court. The most pernicous
attack came from Mr. Mohan Gandhi, the opposition leader and Maithreya Das, a member of
ruling party. Mr. Gandhi in his speech was literally spitting venom against the Court. According
to him “Judges like Hameed owe their allegiance to enemy countries of India and are acting to
divide and destabilise the country. These judges, it should be suspected to have a secret agenda to
disintegrate our great nation. They should quit India and adopt our neighbouring countries as
their Nation. No Court or judge can destroy our belief and such judgements have no value other
than that of a piece of paper and have to be thrown into the dustbin”.

The Sasthadesh Assembly unanimously passed a resolution condemning the judgement of the
High Court and resolved that the judgement is against the spirit and will of the people of
Sasthadesh. Following this, the Chief Justice requested the Government to enhance the security
to judicial officers’ residence and to provide additional security and police protection for their
vehicles. This demand was turned down by the Government stating that the outburst of sporadic
violence throughout the State required maximum force and they are unable to provide additional
security.

On November 10, 2018, Five senior judges of High Court convened a press conference at the
official residence of Justice Hameed. The Justices in the conference pointed out that the present
Government has failed in its duty to uphold the Constitution and rule of law. The Sasthadesh
Assembly by resolving against the judgement of the High Court has miserably failed in
upholding the values of Constitution. Further the members of the Assembly by criticising the
judgment and the actions of the judges have committed Contempt of the House. The Speaker of
the House by allowing such pernicious statements be delivered in the floor of the House has
himself committed Contempt of Court. The Speaker and this Assembly will go down in the

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history of the Constitution as the worst ever and the period of this Assembly will be known as the
dark ages of democracy. Pursuant to this, on 12-11-2018 the High Court of Sasthadesh bench
consisting of Chief Justice Cox and Hameed suo moto initiated Contempt of Court
proceedings against Speaker of the Assembly ‘Harivardhan’ and Opposition Leader Mr.
Gandhi. Notices were send to both directing them to appear before the Court in person. Further
Contempt proceedings were also initiated against Chief Secretary of the State for failure to
provide adequate protection to Judges and Courts.

The House which was in session discussed the action taken by the High Court. After two full
days of heated discussion the House came to the conclusion that the action of High Court
initiating Contempt proceedings against Speaker and members for their speech made in the
Legislative Assembly amounts to Contempt of House as it is in violation of Legislative
privileges. These types of actions are unprecedented and unheard of in Constitutional history. In
this background the Sasthadesh Assembly unanimously resolved to initiate Contempt of House
proceedings against the two judges who initiated Contempt of Court proceedings against the
Speaker. House further resolved to deliver notices to these judges to appear in person before the
House to face the charges of Contempt. Marshall of the House was directed to serve the notice.

On 20-11-2018 being served with the notice issued by House Justices Cox and Hameed replied
that they are not subject to the jurisdiction of the House and its power of Contempt of House for
any action taken by them in the course of a judicial proceeding and hence they are not bound to
appear before the House.

The Sasthadesh Assembly in its session discussed the reply of the judges and their unwillingness
to appear before the House. After detailed discussion House resolved to arrest the two judges and
present them before the House. The marshall of the House was directed to make arrest and
warrant issued. Pursuant to this a bench of the Sasthadesh High Court consisting of all 23 judges
excluding Chief Justice and Justice Hameed sat together to hear on the constitutionality and
legality of the warrant issued by Speaker for Assembly and unanimously decided to quash the
Contempt proceedings initiated against judges.

In response to the High Court action the House discussed the turn of events. The members
unanimously pointed out in the discussions that the House is not subject to any orders of any
Court in matter pertaining to its powers and privileges. However to abide by the principles of

9
constitutionalism the House resolved to move the Supreme Court of India against the decision of
High Court of Sasthadesh to quash the arrest and along with it to quash the Contempt proceeding
initiated by the Court against Speaker and opposition members.

Advocate General is representing High Court of Sasthadesh and the Assembly is engaging a
senior advocate to appear on behalf of Assembly.

ISSUES RAISED

10
I. WHETHER THE CRIMINAL APPEAL FILED UNDER
ARTICLE 134 IS MAINTAINABLE?

II. WHETHER THE CONTEMPT PROCEEDINGS INITIATED


BY THE COURT AGAINST THE SPEAKER AND OPPOSITION
MEMBERS CAN BE QUASHED?

III. WHETHER THE WARRANT ISSUED BY THE SPEAKER


CAN BE EXECUTED OR NOT?

SUMMARY OF ARGUMENTS
11
I. WHETHER THE CRIMINAL APPEAL FILED UNDER ARTICLE 134 IS
MAINTAINABLE?

It is humbly submitted before the Hon’ble Supreme Court that the criminal appeal filed under
Article 134 is maintainable. It is humbly contended before this Honourable Court that the
dismissal of the petitions filed by the High Court is a final order within the meaning of Article
134 of the Constitution. Article 134 is maintainable when there is substantive question of law.
Here the substantive question of law is about the contempt proceedings against the speaker and
that of opposition members which is of grave importance and also, the underlying issue of the
same is the entry of women in a public place during a particular time which calls for the massive
judgment analysis of the Hon’ble courts.

II. WHETHER THE CONTEMPT PROCEEDINGS INITIATED BY THE COURT


AGAINST THE SPEAKER AND OPPOSITION MEMBERS CAN BE QUASHED?

It is humbly submitted before the Hon’ble Supreme Court that the contempt proceedings initiated
by the Court against the speaker and opposition members can be easily quashed.

The extent of watch and vigil, however perfect it may be, will not breed operational efficiency to
the legislature unless it is free from fear or favour. Legislative performance without fear or
favour is made possible by the possession of privilege. Just as the judiciary is conferred an
independent status, so also the legislature is accorded privileges. Generally, the term 'privilege'
denotes "those that are prima facie unlawful but allowable in certain circumstances to all or else
to a limited number of persons". No member of the Legislature of a State shall be liable to any
proceeding in any court in respect of anything said or any vote given by him in the Legislature or
any committee thereof, and no person shall be so liable in respect of the publication by or under
the authority of a House of such a Legislature of any report, paper, votes or proceedings.

III. WHETHER THE WARRANT ISSUED BY THE SPEAKER CAN BE EXECUTED OR


NOT?

12
It is humbly submitted before the Hon’ble Supreme Court that that warrant issued by the speaker
can be executed as the authority of being a speaker calls for punishing those who had contempted
against the house whether the general public or the officials irrespective of their position and
statuses.

Legislative Assembly represent the individual constituencies, whereas the Speaker represents the
full authority of the House itself. The Speaker symbolizes the dignity and power of the House
over which he is presiding. Therefore, it is expected that the holder of this office of high dignity
has to be one who can represent the House in all its manifestations. The responsibility entrusted
to the Speaker is so onerous that he cannot afford to overlook any aspect of parliamentary life.
His actions come under close scrutiny in the House and are also widely reported in the mass
media. Even though the Speaker speaks rarely in the House, when he does, he speaks for the
House as a whole.

WRITTEN PLEADINGS

13
I. WHETHER THE CRIMINAL APPEAL FILED UNDER ARTICLE 134 IS
MAINTAINABLE?

It is humbly submitted before the Hon’ble Supreme Court that the criminal appeal filed under
Article 134 is maintainable.

It is humbly contended before this Honourable Court that the dismissal of the petitions filed by
the High Court is a final order within the meaning of Article 134 of the Constitution.

It is further humbly submitted before this Honourable SC that the appellant has locus standi to
approach the Honourable SC in the present case. Article 134 of the Constitution is couched in the
widest phraseology.1 This Court's jurisdiction is limited only by its discretion. 2 It is pertinent to
note that the scope of Article 134 providing appeals to the SC in criminal matters is limited
whereas Article 134 is very broad-based & confers discretion on the court to hear “in any cause
or matter”. Therefore, criminal appeals may be brought to the SC under article 134. 3 In the
present case the HC erred in setting aside the order of conviction. The jurisdiction conferred
under article 134 on the SC is corrective one & not a restrictive one. A duty is enjoined upon the
SC to exercise its power by setting right the illegality in the judgments, it is well-settled that
illegality must not be allowed to be perpetrated & failure by the SC to interfere with the same
would amount to allowing the illegality to be perpetuated4

Article 134: Appellate jurisdiction of Supreme Court in regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has withdrawn
for trial before itself any case from any court subordinate to its authority and has in such trial
convicted the accused person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be made

1 Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26


2 Ibid.
3 Sadhu Singh v. Pepsu, AIR 1954 SC 271
4 Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC); see also H.M. Seervai, Constitutional Law of India
(4th Ed. Vol. I 2010)

14
in that behalf under clause ( 1 ) of Article 145 and to such conditions as the High Court may
establish or require

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear
appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in
the territory of India subject to such conditions and limitations as may be specified in such law.

A) It calls for substantive question of law

Article 134 is maintainable when there is substantive question of law. Here the substantive
question of law is about the contempt proceedings against the speaker and that of opposition
members which is of grave importance and also, the underlying issue of the same is the entry of
women in a public place during a particular time which calls for the massive judgment analysis
of the Hon’ble courts.

B) There is grave injustice

It is most humbly submitted before this Honourable Court that grave injustice has been done in
the present case. In this case all the circumstantial evidence is clearly establishing that the HC
did not use its faculty. There are no two views present in the present case to favor one. It is also
pertinent to note that SC does not interfere with the sentence passed by lower courts unless there
is an illegally in it, or is unjust in the facts & circumstances of the case, it is unduly lenient, it
involves any question of principle or where the HC does not exercise its discretion judicial on the
question of sentence. In this present case the case is above the belief of a million people which
was overlooked by the High Court.5

5 State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840

15
II. THE CONTEMPT PROCEEDINGS INITIATED BY THE COURT
AGAINST THE SPEAKER AND OPPOSITION MEMBERS CAN BE
QUASHED

It is humbly submitted before the Hon’ble Supreme Court that the contempt proceedings initiated
by the Court against the speaker and opposition members can be easily quashed.

The extent of watch and vigil, however perfect it may be, will not breed operational efficiency to
the legislature unless it is free from fear or favour. Legislative performance without fear or
favour is made possible by the possession of privilege. Just as the judiciary is conferred an
independent status, so also the legislature is accorded privileges. Generally, the term 'privilege'
denotes "those that are prima facie unlawful but allowable in certain circumstances to all or else
to a limited number of persons". In relation to the legislature, it would be convenient to reserve
the term to " ... the sum of peculiar rights enjoyed by each House collectively ... and by members
of each House individually, without which they couldn't discharge their functions, and which
exceed those possessed by other bodies or individualism. Actually, privileges are the collective
rights of the Houses and its committees only. In the strict sense, there is nothing to be called
individual member's rights. Members can enjoy certain rights inherent in the House, that too only
to the extent to which they are discharging the functions of thc House.

The fundamental principles on which orderly and civilized Government rests, broadly covered
by the term "Rule of Law", are laid down for us in our Constitution. The Constitution assigns to
the Judiciary the function of authoritatively and finally interpreting the Constitution and of
expounding its meaning. In 1964, however, the U. P. Legislative Assembly put forward a claim
to determine for itself the ambit of its constitutional power to punish citizens for its contempts.
This claim seems to have been advanced upon the footing that such power to interpret the
Constitution on such a matter was itself a privilege conferred upon the Assembly by the
Constitution.

Article 105, so also Article 194 subjects the powers, privileges and immunities of each House as
well as all its members and all its committees not only to the laws made by the appropriate
legislature but also to all other provisions of the Constitution. Both these articles far from dealing
with the legislative powers of the Houses of Parliament or of State Legislature respectively are
confined in scope to such powers of each House as it may exercise separately functioning as a

16
House.6 A House of Parliament or Legislature cannot try anyone or any case directly as a court of
justice can, but it can proceed quasi judicially in cases of contempt of its authority or take up
motions concerning its privileges and immunities in order to seek removal of obstructions to the
due performance of its legislative functions. If any question of jurisdiction arises as to a certain
matter, it has to be decided by a court of law in appropriate proceedings 7. For example, the
jurisdiction to try a criminal offence such as murder, committed even within a House vests in
ordinary courts and not in a of Parliament or in a State Legislature. Also, a House of Parliament
or State Legislature cannot in exercise of any supposed powers under Articles 105 and 194
decide election disputes for which special authorities have been constituted under the
Representation of People Act, 1951 enacted in compliance with Article 329.

Article 122(2) also provides that "no officer or member of Parliament in whom powers are
vested by or under this Constitution for regulating procedure or the conduct of business, or for
maintaining order in Parliament, shall be subject to the jurisdiction of any court in respect of the
exercise by him of those powers.” A member of Parliament shall not be "liable to any
proceedings in any court in respect of anything said or any vote given by him in Parliament or in
any committee thereof, and no person shall be so liable in respect of the publication by or under
the authority of either House of parliament of any report, paper, votes, or proceedings.”
Parliament thus enjoys certain privileges and immunities which are not subject to the jurisdiction
of any court of law.

In order to secure the independence of the judiciary the Constitution of India has provided that
"no discussion shall take place in Parliament with respect to the conduct of any judge of the
Supreme Court or of a High Court in the discharge of his duties except upon a motion for
presenting an address to the President praying for the removal of the Judge as hereinafter
provided. The state Legislatures are also prohibited from discussing the conduct of a judge of
Supreme Court or of a High Court in the discharge of his duties. “

Originally the constitution envisaged two types of privileges under the article 105 of the Indian
constitution. One is freedom of speech in Parliament and the right of publication of its

6 Tej Kiran Jain v. N. Sanjeeva Reddy, (1970) 2 SCC 272: AIR 1970 SC 1573.
7 P.V.Narsimha Rao v. State (1998) 4 SCC 626

17
proceedings. Art. 194, Clauses(l), (2) and (3) form the constitutional source of the privileges
and immunities of the State Legislature which is almost as same as that of Article 105.8

Powers of the Houses of Legislature and of the members and committees thereof.
1. Subject to the provisions of this Constitution and to the rules and standing orders regulating
the procedure of the Legislature9, there shall be freedom of speech in the Legislature of every
State.

2. No member of the Legislature of a State shall be liable to any proceeding in any court in
respect of anything said or any vote given by him in the Legislature or any committee thereof,
and no person shall be so liable in respect of the publication by or under the authority of a House
of such a Legislature of any report, paper, votes or proceedings.

3. In other respects, the powers, privileges and immunities of a House of the Legislature of a
State, and of the members and the committees of a House of such Legislature, shall be such as
may be defined from time to time be defined by the Legislature by law, and until so defined,
shall be those of that House and of its members and committees immediately before the coming
into force of Section 26 of the Constitution (Forty Fourth Amendment) Act, 1978.

4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a
House of the Legislature of a State or any committee thereof as they apply in relation to
members of that Legislature.

This article that applies to the State Legislatures and members and committees thereof is an exact
reproduction of Article 105, which applies to both Houses of Parliament and committees thereof.

Clause (1)- of this article declares that there shall be freedom of speech in the legislature of every
State. This freedom is subject to the provisions of Articles 208 and 211 . A member cannot
accordingly raise discussions as to the conduct of a Supreme Court or High Court judge as A.
211 prohibits it. The provisions of the Constitution subject to which freedom of speech has been
conferred on the legislators are not the general provisions of the Constitution but only such of

8 K. Anandan Nambiar v. Chief Secretary, Government of Madras, AIR 1966 SC 657, 664: (1996) 2 SCR 406
9 Ansumali Majumdar v. State of W.B. AIR 1952 Cal. 632

18
them as relate to the regulation of the procedure of the Legislature. The freedom of speech
guaranteed to citizens under A. 19 (1) (a) is therefore separate and independent of Article 194 (1)
and does not control the first part of clause 1 of A.194.10

Clause (2)- emphasizes the fact that the freedom of speech conferred on the Legislatures under
clause (1) is intended to be absolute and unfettered. Similar freedom is guaranteed to the
legislators in respect of the votes they may give in the Legislature or committees thereof. Thus, if
a legislator exercises aright of freedom of speech in violation of A. 211 he would not be liable for
any action in any court. Likewise, if the legislator by his speech or vote is alleged to have
violated any of the fundamental rights guaranteed by Part III of the Constitution in the
Legislative Assembly, he would not be answerable for the said contravention in any court. If the
speech amounts to libel or becomes actionable or indictable under any other provision of the law
immunity has been conferred on him from any action in any court by clause (2). He may be
answerable to the House for such a speech and the Supreme Court may take appropriate action
against him in respect of it. Thus clause (1) confers freedom of speech to the legislators within
the legislative chambers and clause (2) makes it plain that the freedom is literally absolute.

Clause (3)- the first art of this clause empowers the State Legislature to make laws Prescribing its
powers, privileges and immunities. If the Legislature of a State under the first part of clause (3)
makes a law which prescribes its powers, privileges and immunities, such law would be subject
to Article 13 and clause (2) of that article would render it void if it contravenes or abridges any
of the fundamental rights guaranteed by Part III.

The right of State Legislatures to punish for contempt can be discussed with the case law of
Powers, Privileges and Immunities of State Legislature, Re. The reference was a sequel to the
passing of an order by an unprecedented Full Bench of 28 judges staying, under Article 226, the
implementation of the U.P.11

Parliamentary privileges are special rights, immunities, exceptions enjoyed by the members of
the two houses of Parliament and their committees. These rights are mainly from the members of
both the Houses of Parliament. Apart from this, these rights are also given to those individuals

10 State of Karnataka v. Union of India (1977) 4 SCC 608, 654


11 Indira Nehru Gandhi v.Raj Narain 1975 Supp.SCC 1, 47: AIR 1975 SC 2299

19
who speak and participate in any committee of the Parliament, which includes the Attorney
General of India and the Union Ministers.

The collective privileges of Members of Parliament are as follows;

1. No person (either a member or outsider) can be arrested and no legal process (criminal or
civil) can be initiated within the premises of the house without the permission of the presiding
officer of the house.

2. No Court has the right to investigate proceedings of the House or any of its committees.

Parliament can exclude guests from its proceedings and in some cases of national interest it can
also hold a secret meeting on any important matter.

4. Parliament can punish members as well as outsiders for breach of its privileges or its contempt
by reprimand, admonition or imprisonment (also suspension or expulsion in case of members).

Individual Privileges are as Follows;

1. When the Parliament is in session, a Member of Parliament or a privileged person may refuse
to appear in court or to present any evidence in a court12.

2. The members of Parliament can’t be arrested during the session of the Parliament and 40 days
before the beginning and 40 days after the end of the session. However this privilege is available
in civil cases only not in criminal cases.

3. No member is liable to any proceedings in any given court for anything said or any vote by
him/her in the parliament or its committees.13

Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that no
person shall be liable to any proceedings civil or criminal for reporting the proceedings of either

12 Suresh V Punit, AIR 195 1 Cal 176


13 State of Kerala V Sudarsana Bubu, 1983, KLT 764 (FBI at p.773

20
House of Parliament or a State Legislature unless the reporting is proved to have been made with
malice. This provision does not apply to the reporting of proceedings of secret sittings of the
Houses.

The House is the guardian of its own privileges. Any violation, attack or disregard of privileges,
rights and immunities, either of the House, its committees or individual members, subject to
discharge of functions of the House, is regarded as a breach of privilege. Contempt, on other
hand, denotes anything that lowers the authority and dignity of the House in the estimation of the
public.14

In this very case, the impeachment proceedings against the Speaker and other members have
lowered their reputation and value in the eyes of the public and hence, it amounts to contempt of
the Court.

There is a clear demarcation as to what all rights and privileges are absolute and what are not.
For example, in India Legislative Assemblies and Parliament never discharge any judicial
function and their historical and constitutional background does not support their claim to be
regarded as courts of record in any sense. No immunity from scrutiny by courts of general
warrants issued by House in India can therefore be claimed.

Both the Parliament and State Legislatures have a duty to look carefully before making any law,
so that it doesn't harm other rights. It is also a duty of the members to properly use these
privileges and not misuse them for alternate purposes that is not in the favour of general interest
of nation and public at large.

III THE WARRANT ISSUED BY THE SPEAKER CAN BE EXECUTED.


14 M.S.M. Sharma V Shri. Krishna Sinha; AIR 1959, SC 395

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It is humbly submitted before the Hon’ble Supreme Court that that warrant issued by the speaker
can be executed as the authority of being a speaker calls for punishing those who had contempted
against the house whether the general public or the officials irrespective of their position and
statuses.

Legislative Assembly represent the individual constituencies, whereas the Speaker represents the
full authority of the House itself. The Speaker symbolizes the dignity and power of the House
over which he is presiding. Therefore, it is expected that the holder of this office of high dignity
has to be one who can represent the House in all its manifestations. The responsibility entrusted
to the Speaker is so onerous that he cannot afford to overlook any aspect of parliamentary life.
His actions come under close scrutiny in the House and are also widely reported in the mass
media. Even though the Speaker speaks rarely in the House, when he does, he speaks for the
House as a whole. The Speaker is looked upon as the true guardian of the traditions of
parliamentary democracy. Hon’ble Speaker’s unique position is illustrated by the fact that he is
placed very high in the Warrant of Precedence in the State, standing next to the Chief Minister.
Under the Constitution of India, the Rules of Procedure and Conduct of Business in Legislative
Assembly and practices and conventions, adequate powers are vested in Speaker to help him in
the smooth conduct of the proceedings of the House and for protecting the independence and
impartiality of the office of Speaker. The duties of the Speaker are very arduous. He has been
assigned extensive administrative, judicial and regulatory functions. He enjoys vast authority
under the Constitution and the Rules of Procedure and conduct of business in the Legislative
Assembly, as well as inherently. As the conventional head of the Legislative Assembly and as its
principal spokesperson, the Speaker represents its collective voice. Of course, he is the ultimate
arbiter and interpreter of those provisions which relate to the functioning of the House. His
decisions are final and binding and ordinarily cannot be questioned, challenged or criticized.
Hence, it is clear from the above scenario that the speaker has judicial powers too.

The Speaker of the assembly and the chief secretary are unlikely to abet criminal acts or even
give protection to those indulging in such acts. The fact being that legislators and civil servants,
as a class, does not have their own corporate interests that are safeguarded with gusto and
furthermore, they have no clear interest of selfishness rather it is purely public interest.

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The Speaker can also issue warrants to execute the orders of the House, wherever necessary, and
delivers reprimands on behalf of the House. The entire Legislative Assembly Estate is under the
authority and control of the Speaker.

Under Article 105, Parliament or any of the State Assembly can proceed quasi judicially in cases
of contempt of its authority or take up motions concerning its privileges and immunities in order
to seek removal of obstructions to the due performance of its legislative functions.

“Each House is the guardian of its own privileges. Courts of law have recognised that a House of
Parliament (or of a state legislature) is the sole authority to judge as to whether or not there has
been a breach of privilege or contempt of the House in a particular case. The House may punish a
person found guilty of breach of privilege or contempt of the House either by reprimand or
admonition or by imprisonment for a specified period,” 15

15 Ashwathy Manasewar v. Padmanabhan AIR 2012

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PRAYER FOR RELIEF

Wherefore, in the light of the authorities cited, questions presented and the arguments advanced,
it is most respectfully prayed before this Hon’ble Supreme Court be pleased to adjudge and
declare that:

I. THE CRIMINAL APPEAL FILED UNDER ARTICLE 134 IS MAINTAINABLE.

II. THE CONTEMPT PROCEEDINGS INITIATED BY THE COURT AGAINST THE


SPEAKER AND OPPOSITION MEMBERS CAN BE QUASHED?

III. THE WARRANT ISSUED BY THE SPEAKER CAN BE EXECUTED.

And pass any other relief that this Hon’ble Court may deem fit and proper in the interest of
justice, equity and good conscience.

For this act of kindness, the appellants shall duty bound forever pray.

All of which is humbly submitted by

Sd/-

Counsels on the behalf of the Appellants

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