IMS UNISON UNIVERSITY 5th NATIONAL MOOT COURT … · April 2017 1. The SC ordered Swami J. to...

IMS UNISON UNIVERSITY

5th NATIONAL MOOT COURT COMPETITION, 2017

IN THE HON’BLE SUPREME COURT OF INDIANA

In Writ Petition No. 45 of 2017

News Channel Indiana 24*7 & Ors. ….Petitioners

v.

Union of Indiana ….Respondent

CLUBBED WITH

SLP No. 567 of 2017

7 Judges of Hon’ble Supreme Court of Indiana ….Appellant

v.

State of East Mengal ….Respondent

CLUBBED WITH

SLP No. 987 of 2017

Shri Justice Swami ….Appellant

v.

Union of Indiana ….Respondent

IN THE MATTER ARISING OUT OF:

1. Order passed by Hon’ble Apex Court under contempt proceedings; and

2. Order passed by Justice Swami under SC/ST Atrocities Act, 1989 and contempt of the

Court

Memorial for Petitioners

TEAM CODE: NMCC-20

TABLE OF CONTENTS

S. No. Topic Page No.

1. Index of Authorities 3

2. List of Abbreviations 4 – 5

3. Statement of Jurisdiction 6

4. Statement of Facts 7 – 9

5. Statement of Issues 10

6. Summary of Argument for Writ Petition No. 45 of

2017

11

7. Arguments Advanced for Writ Petition No. 45 of

2017

12 – 18

8. Summary of Argument for SLP No. 567 of 2017 19

9. Arguments Advanced for SLP No. 567 of 2017 20 – 28

10. Summary of Argument for SLP No. 987 of 2017 29

11. Arguments Advanced for SLP No. 987 of 2017 30 – 39

13. Prayer 40

LIST OF ABBREVIATIONS

Abbreviations Full Form

¶ Para

AIR All India Reporter

All Allahabad

Bom Bombay

Cal Calcutta

Cr. L.J. Criminal Law Journal

Del Delhi

Ed. Edition

H.C. High Court

Kar. Karnataka

Ltd. Limited

M.P. Madhya Pradesh

No. Number

Ors. Others

p. Page

Para. Paragraph

PC Privy Council

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Report

SC/ST Scheduled Castes/Scheduled Tribes

Supp. Supplementary

U.P. Uttar Pradesh

v. Verses

Vol. Volume

INDEX OF AUTHORITIES

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

https://indiankanoon.org/doc/80596/

STATUTES AND RULES

CONTEMPT OF COURT ACT, 1971

SUPREME COURT (CONTEMPT OF COURT) RULES,1975

JUDGES (INQUIRY) ACT,1968

JUDGES PROTECTION ACT, 1985

LETTERS PATENTS OF CALCUTTA HIGH COURTS

SC/ST PROTECTION OF ATROCITIES ACT, 1989 AND AMENDED ACT OF 2015

SC/ST RULES AS AMENDED IN 2015

SUPREME COURT RULES 1966 AND 2013

WHISTLE BLOWERS PROTECTION ACT, 2011

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

PRESS COMMISSION OF INDIA, 1954.

SANYAL COMMITTEE REPORT,1963.

LEXICONS

BRIAM A. GARNER, BLACK’S LAW DICTIONARY (10TH ED. 2014)

P RAMANATHA AIYAR, THE MAJOR LAW LEXICON (4TH ED. 2010)

SALLY WEHMEIER, OXFORD ADVANCED LEARNER’S DICTIONARY (7TH ED.

2005)

DAULAT RAM, PREM’S JUDICIAL DICTIONARY, VOL I, VOL II (5TH ED., 2002)

STATEMENT OF JURISDICTION

1. Writ Petition No. 45 of 2017

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.

Article 32. Remedies for enforcement of rights conferred by this Part

(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.

2. SLP No. 567 of 2017

The petitioners approach the Hon’ble Supreme Court of Indiana under Article 136 of

Constitution against the order passed by Justice Swami sentencing 7-judges for 5-year rigorous

imprisonment under the SC/ST Atrocities Act, 1989 and contempt of court.

3. SLP No. 987 of 2017

The petitioners approach the Hon’ble Supreme Court of Indiana under Article 136 of

Constitution against the order passed by Hon’ble Apex Court under Contempt proceedings.

Article 136. Special leave to appeal by the Supreme Court

(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:

S. No. List of Dates Instances

1. February 2015 1. Swami J. wrote letters to the Chief Justice of HC of Dravida

Nadu for allotting insignificant and dummy portfolios, and

segregating him on account of his belonging to an

underprivileged caste.

2. Swami J. also complained to the Chairman of the National

Commission for the Scheduled Castes and Scheduled Tribes

about the aforesaid mentioned accusations.

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.

3. September 2016 1. Swami J. was transferred from Dravida Nadu HC to the HC of

East Mengal.

2. Swami J. on the same day initiated suo-moto writ proceedings

and stayed his transfer order and the order vacating the

residential accommodation.

(all this was widely reported)

4.

.

2016 1. The Registrar of the HC of Dravida Nadu approached the

Division Bench of the Apex Court, which lifted the self-

imposed ban on Swami J.’s transfer. Swami J. initiated

proceedings against the judges of the DB of the Apex Court

under the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989.

2. Apex Court in several letters warned Swami J. of initiating

contempt case (in case he fails to follow its direction) (probably

of transfer).

3. Swami J. on being counseled by senior judges of the Apex

Court agreed and joined at the HC of East Mengal.

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.

6. February 8, 2017

The SC initiated suo-motu contempt proceedings against Swami J.

and asked to appear but Swami J. could not appear in the Court.

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

1. Writ Petition No. 45 of 2017

(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?

2. SLP No. 567 of 2017

(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?

3. SLP No. 987 of 2017

(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?


SUMMARY OF ARGUMENTS

News Channel Indiana 24*7 & Ors. v. Union of Indiana

(Writ Petition No. 45 of 2017)

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

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 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.


ISSUE 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`?

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.

2. VIOLATION OF FUNDAMENTAL RIGHT

2.1.Article 32 can be invoked only when there is an infringement of a Fundamental Right. The

violation of a Fundamental Right is the sine qua non for seeking enforcement of that right by the

Supreme Court.2 In the present case, the Supreme Court by restraining the print and electronic

media from publishing Swami J.’s contemptuous statements and orders, seriously violated the

freedom of press/media, implicit in the freedom of expression guaranteed by the Constitution

under Article 19(1)(a).3

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

4. ALTERNATIVE REMEDY NO BAR TO MAINTAINABILITY

4.1. Article 32 is in itself a Fundamental Right and therefore, the existence of an alternative remedy

is no bar to the Supreme Court entertaining a petition under Article 32 for the enforcement of a

Fundamental Right.18

4.2.Also, the writ petition is filed in the present case on the ground that for the enforcement of a

Fundamental Right, a writ petition under Article 32 (which itself is a Fundamental Right) is a

best remedy. The Supreme Court in Lala Ram v. Supreme Court Of India & Ors.19, held that,

‘The main purpose of a ‘Review Petition’ under Article 137 of the Constitution is not to enforce

a fundamental right, but to reopen an order vitiated by an error on the face of the record or for

such other reasons. It may be that this is a consequence of reopening an order, but the

application itself, is not to enforce the fundamental right, and on the other hand, the main and

the very purpose of a ‘Writ Petition’ under Article 32 is to enforce a Fundamental Right.’

4.3.Further, the Supreme Court observed that while in a review petition the Court considers on

merits where there is an error apparent on the face of the record, in a writ petition which is

treated as a recall petition, the Court does not go into the merits but simply recalls an order

which was passed without giving an opportunity of hearing to an affected party.20

4.4.Thus, petitioner in this case chose the best remedy available to secure to itself and to the other

media houses which it is representing, the freedom of expression under Article 19(1)(a) of the

Constitution.

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.].

1. FREEDOM OF PRESS IS AN ESSENTIAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

1.1. It is now well settled law that in India, freedom of press is an intrinsic fundamental right implied

in the Freedom of speech and expression clause.21 The prime purpose for free press guarantee is

regarded as creating a 4th institution outside the government as an additional check on the three

official branches – executive, legislative and the judiciary.22 As per the decision in Sakal Papers

v. Union of India23,“... freedom of press is regarded as a species of which freedom of expression

is a genius. Thus, being only a right flowing from the freedom of speech, the freedom of press in

India stands at a pedestal of a fundamental right”.

2. DUTY OF JUDICIARY TO PROTECT FREEDOM OF PRESS

2.1.The purpose of press is to promote and advance public interest by publishing facts and opinions

without which a democratic mass of people cannot make an informed judgment. It is the primary

duty of the courts to uphold the freedom of press and invalidate any laws which interferes with it

contrary to constitutional mandate.24

2.2.Therefore the ban that has been imposed extensively curtails the ability of press to disseminate

complete information so as to enable an enlightened discussion on the issue which the freedom

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..

3. RESTRICTION BY SUPREME COURT ORDER IS NOT REASONABLE

3.1.The fundamental right provided under Article 19(1)(a) can be limited only by reasonable

restrictions under a law made for purpose mentioned in Article 19(2) of the Constitution.29 It is

humbly submitted that media Guidelines case30 was not followed [3.1].

[3.1] Media Guidelines case was not followed

3.1.1. The liberty of the press consists in laying no previous restraints upon publication.31 In Sahara

India Real Estate Corpn. Ltd. v. Securities and exchange Board of India32 popularly known as

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



7 Judges of Hon’ble Supreme Court of Indiana v. State of East Mengal

(SLP No. 567 of 2017)

ISSUE 1: WHETHER THE APPELLANTS BE GRANTED SPECIAL LEAVE TO APPEAL BY SUPREME

COURT OF INDIA AGAINST THE IMPUGNED ORDER OF HIGH COURT OF EAST MENGAL?

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

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,. 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.


ISSUE I: WHETHER PETITIONERS BE GRANTED SPECIAL LEAVE TO

APPEAL BY SUPREME COURT OF INDIA AGAINST THE IMPUGNED

ORDER OF HIGH COURT OF EAST MENGAL?

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.].

1. THE PETITIONERS HAVE THE LOCUS STANDI

1.1. Firstly, The petitioners in this case are aggrieved by the order of the then Swami J. of HC of

East Mengal with respect to the impugned conviction under Scheduled Caste and Schedules

Tribes (Prevention of Atrocities) Act, 1989 as amended by 2015 [hereinafter refered to as

Atrocities Act]. Being aggrieved, they have filed SLP in the SC. Under Article 136 of the

Constitution of India any person aggrieved by any judgment, decree, determination or order in

any cause or matter passed or made by any Court or Tribunal in India may appeal to the SC.40

The power under Article 136 of the Constitution is not circumscribed by any limitation as to

who may invoke it.41 It is submitted that intra-court appeal from a single bench to Division

Bench cannot lie in criminal cases.42 Therefore, petitioners have undisputed Locus Standi in

Article 136.


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. THE IMPUGNED ORDER IS VITIATED BY ARBITRARINESS, SHOCKS THE CONSCIENCE OF THE

COURT AND BREACHES PRINCIPLES OF NATURAL JUSTICE

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 justice45, 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

5. THE IMPUGNED ORDER INFRINGES FUNDAMENTAL RIGHTS OF PETITIONERS

5.1.Any arbitrary determination or process is violative of Article14 and Article 21.64 New concept of

equality was proposed by SC65. These rights ensure fairness and justice in treatment which

pervades these provisions like brooding omnipresence.66 Since, the order passed is arbitrary,

perverse and unreasonable, it infringes the fundamental right of the petitioners. Therefore, it is

liable to be challenged in SLP filed.

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.].

1. NOT GUILTY UNDER SECTION 3 OF THE ATROCITIES ACT

1.1.Not guilty under Section 3(1)(r) of the Act

1.1.1. To bring an accused guilty under the Atrocities Act, 1989, it is important to prove that he, not

being a member of a SC/ST, intentionally, insults or intimidates with intent to humiliate a

member of a SC/ST in any place within public view.69 Therefore, here, intention and

knowledge for commission of offence against him/her on the basis that such person belongs to

such community is an essential ingredient.70 Therefore, where a complaint has been filed just

because he is a member of said community was set aside.71

1.1.2. In the present case, Swami J. has been taking undue advantage of his being a Dalit and

projecting himself as a self-acclaimed victim without having any plausible evidence of offence

committed under this Act. Therefore, petitioners are not liable under aforesaid provision.

[1.2] Not guilty under Section 3(1)(u) of the Act

1.2.1. To bring an accused guilty under the Atrocities Act, 1989, it is important to prove that he by

words either written or spoken or by signs or by visible representation or otherwise promotes

or attempts to promote feelings of enmity, hatred or ill-will against members of the SC/ST.72 In

the present case, the elements of the Section (1)(u) of the said have not been proved. There is

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.

2. ACTIONS AND ORDERS OF THE APEX COURT ARE JUSTIFIABLE

2.1.Cause of action in all proceedings and orders were prima facie ground of contempt: Neither

the orders nor contempt proceedings were taken up with a view to insult Swami J. being a Dalit.

2.2.The chief forms of contempt are insult to Judges, attacks upon them, comment on pending

proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, abusing the

process of the court, breach of duty by officers connected with the court and scandalizing the

Judges or the courts73. Where allegations of corruption made against judiciary it is in the right

and interest of public in due administration of justice which must be protected.74 Facts prima

facie constituting the contempt can be summarized as follows:

(1) Swami J. initiated the proceedings against the judges of division bench of Apex Court.

(2) Even after his transfer to HC of East Mengal, Swami J. continued his scandalous remarks

against Judges of HC and Supreme Court and wrote several letters requesting authorities to

investigate against judges of HC of Dravida Nadu and Apex Court on corruption.

(3) Where, first Judicial Order dated 8-2-2017 under Contempt proceedings initiated against

Swami J. was passed, the same defied by Swami J. and he remained defiant to the warrants.

(4) On 10-3-2017, by exercising powers under Article 226 of Constitution and Section 482

CrPC, he directed the Secretary Generals of Lok Sabha and Rajya Sabha to conduct enquiry

under Judges Enquiry Act, 1968. In retaliation, Swami J. sentenced Chief Justice of Indiana

and six other Apex Judges to five Year rigorous imprisonment after holding them guilty

under SC/ST Atrocities Act, 1989 and amended Act 2015 and for contempt of Court.

2.3.Justification for Medical Order: The Apex Court held in DDA v. Skipper Construction Co. (&)

Ltd. 75, that under Article 129 and article 142 the court had power to make appropriate orders to

do complete justice. Since the provision contains no limitation regarding the causes or the

circumstances in which the power can be exercised nor does it lay down any condition to be

satisfied before such power is exercise, the exercise of power under article 142 is left completely

to the discretion of highest court of country.76

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.

4. VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE

4.1.Nemo judex in causa sua, that is, no man shall be a Judge in his own cause, is a principle firmly

established in law.78 In the present case, Swami J. believed that he was the victim of

discrimination. He could have recused himself from the proceedings and prevented the violation

of this principle of natural justice. To prove his contention and to get appropriate relief he should

have approached appropriate forum and sought relief from an independent party by filing an

application before the special court. He by sentencing the 7 Judges, decided his own matter and

thereby acted as a judge in his own cause and therefore violated and breached the essential

principle of natural justice, fairness and impartiality. Therefore, his sentence is not justified to

stand.

ISSUE III: 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 [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. ACTS OF THE 7 JUDGES OF THE APEX COURT DO NOT AMOUNT TO 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.



Shri Justice Swami v. Union of Indiana

(SLP No. 987 of 2017)

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.

ISSUE 3: WHETHER THE PETITIONER IS GUILTY FOR COMMISSION OF CONTEMPT OF THE

SUPREME COURT OF INDIANA?

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.


ISSUE I: WHETHER THE SLP No. 987 of 2017 IS MAINTAINABLE

UNDER ARTICLE136 OF CONSTITUTION OF INDIANA?

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.]

1. THE PETITIONERS HAVE THE LOCUS STANDI

1.1.Under Art. 136 of the Constitution any person aggrieved by any judgment, decree, determination

or order in any cause or matter passed or made by any Court or Tribunal in India may appeal to

the SC. The petitioner in this case being aggrieved by the judgment of SC with respect to alleged

criminal contempt of SC filed SLP in the SC86. The power under Article 136 of the Constitution

is not circumscribed by any limitation as to who may invoke it.87


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.

[2.1] Powers under Article 136 is of widest possible amplitude

2.1.1.It has been well settled by various other case laws that, if approached, the Supreme Court can

interfere in order to prevent injustice90and errors of law under Article 136. Minor technicalities

of procedure should not come in the way of doing substantial justice.91

2.2.1. In Durga Shankar v. Raghuraj92, it was held that the powers given by article 136 of the

constitution however are in the nature of special or residuary powers which are exercisable

outside the purview of ordinary law, in cases where the needs of justice demand interference

by Supreme Court of the Land. \Therefore, petition can’t be denied leave merely on mere

technicalities.

[2.3] No suitable alternative remedy is available

2.3.1. In the present case, it is humbly submitted that filing an SLP is the only suitable remedy

present to the petitioner to raise questions arising out of conviction of petitioner. Scope for

review of a judgment is limited in nature and limited to cases of discovery of new and

important evidence, mistake or error apparent on the face of the record or other such reasons

of same nature.93 The purpose is to rectify a mistake or any patent error. However, SLP, once

accepted and the leave granted, it is open to petitioners to rely on any ground which could

have been open to him in case of regular proceedings.94

[A.] The judgment can be recalled under Article 142

2.3.2. Supreme Court of Indiana can exercise its extraordinary powers to recall the judgment

pronounced in one proceeding and list the case for fresh hearing.

2.3.3. In present case, requirements of natural justice had not been followed and proper state of law

was not appreciated, therefore, in exercise of such extraordinary powers and in the interest of

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

3. ARBITRARY JUDGMENT DUE TO BREACH OF PRINCIPLES OF NATURAL JUSTICE

3.1. It is humbly submitted that the order of conviction in exercise of powers to punish for contempt

is arbitrarily exercised. Any order that is made in disregard of principles of natural justice is

arbitrary and against the essence of system of administration of justice.96

3.2.Section 17 of Contempt of Court Act, 1971 provides that the notice of proceedings of contempt

must be given personally to the person charged. But, no such notice has been shown to have been

served upon the petitioner and therefore he was denied the opportunity to present before the

court to explain the new developments after the initiation of first proceedings.

3.3.In the present factual matrix, since there has been blatant disregard of the principles of natural

justice, viz. ‘Nemo judex in causa sua’ (because the judges who presided the Apex Court and had

personal bias involved on account of them being sentenced earlier by the Petitioner) and ‘Audi

alteram partem’ (because no opportunity of being heard was provided in the new contempt

proceedings which had new grounds) on the above contended grounds, the judgment delivered

by the Respondents violate Article 14 of the Constitution.

4. A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE ARISES

4.1.It has been held in plethora of cases that when the question of law of general public importance

arises, the jurisdiction of SC can be invoked by filing special leave petition. In the present case,

the issue involves matter of General Public Importance.

4.2.Supreme Court has triggered a line of unanswered questions that are disturbing and would

certainly pose as a serious danger to administration of justice. This disciplinary action taken by

Supreme Court in the garb of contempt proceedings makes the following uncertainties possible:

I. HCs having their own contempt powers can also initiate suo motu contempt proceedings

against other HC judges either of the same or different HC;

II. Also, HCs can now initiate contempt proceedings against Apex Court judges and

possibly even CJI because as per the rules no one is above law.97

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.

5. THE ISSUES INVOLVES SUBSTANTIAL QUESTION OF LAW

5.1.A Constitution Bench98 of this Court, while explaining the import of the said expression,

observed that: The proper test for determining whether a question of law raised in the case is

substantial would, in our opinion, be whether it is of general public importance or whether it

directly and substantially affects the rights of the parties and if so whether it is either an open

question in the sense that it is not finally settled by this Court or by the Privy Council or by the

Federal Court.’

5.2.The Respondents by sentencing the Petitioner violated the basic axiom of the Constitution –

“What one cannot do directly, one cannot do indirectly.” as ‘imprisonment’ and ‘removal’ are

same in substance and effect. They made a mockery of the principle of separation of powers

which is a basic structure of the Constitution99 and therefore, their sentence is unconstitutional

and is liable to be set aside.

5.3.Further, Section 77 of IPC, 1860 which provides immunity to judges for acts done officially fails

to qualify his judgment sentencing the 7 Judges of Hon’ble Apex Court to 5-year rigorous

imprisonment.

ISSUE II: 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 [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.

[2.1.] Violation of Nemo judex in causa sua

2.1.1.It is an acclaimed rule that, the authority empowered to decide the dispute between opposing

parties must be one without bias, which means an operative prejudice, whether conscious or

unconscious towards one side or the other in the dispute.102

2.1.2.The Apex Court has observed103 that, the test is not whether in fact, a bias has affected the

judgment the test always is and must be whether a litigant could reasonably apprehend that a

bias attributable to a member of the judicial authority might have operated against him in the

final decision of the tribunal.

2.1.3.In the present case, all the seven Judges of the Apex Court, who initiated the contempt

proceedings against the Petitioner and sentenced, were the one who were sentenced by the

Petitioner for 5-year rigorous imprisonment under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 and contempt of the HC of the State of East Mengal. From

the given state of facts and circumstances, it can be reasonably inferred that the Respondents

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.

[2.2] Violation of principle of Audi Alteram Partem

2.2.1.Rules of natural justice require that a party should have the opportunity of adducing all relevant

evidence on which he relies.104

2.2.2.In the present case, after initiation of the new contempt proceedings in April, 2017 no

opportunity of being heard is shown to have been given to the Petitioner. He was not afforded

any chance to represent himself or explain his stance. There has been no issuance/service of

notice under Section 17 of the Contempt of Courts Act, 1971.

3. CONVICTION FOR CRIMINAL CONTEMPT OF SITTING HIGH COURT JUDGE IS

IMPROPER

3.1.Firstly, under the constitutional scheme as framed for the judiciary, the Supreme Court and the

HC both are courts of record. The HC is not a court 'subordinate' to the Supreme Court. 105

3.2.A scurrilous attack on a judge, in respect of a judgment or past conduct has in our country the

inevitable effect of undermining the confidence of the public in the Judiciary.106 Therefore,

similar to the conviction of 7 Judges of the Apex Court, the conviction of the Petitioner would

also amount to contempt, as conviction of a sitting HC judge would be blotch on the HC of East

Mengal in general. Thus, since commission of contempt is not justified and legal, therefore, the

sentence passed by the Respondents is liable to be dismissed.

3.3.Secondly, the term ‘Imprisonment’ in respect of Indian system of Punishments, refers to

‘retention of a person, often in a common prison’.107 It also refers to the act of putting or

confining a man in prison.108 While, the term ‘Removal’ refers to ‘the punishment involving

termination of service/appointment’.109 It can be easily deduced that the terms ‘imprisonment’

and ‘removal’ are same in substance.

3.4.The Constitution of Indiana clearly provides only one way to remove the judges of the HC under

Article 217 (read with Article 124(4)) of the Constitution. This power is solely vested in the

Parliament with an aim to honor the system of checks and balances and to prevent favoritism and

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 107Prem'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.

ISSUE III: WHETHER THE PETITIONER IS GUILTY FOR

COMMISSION OF CONTMEPT OF THE SUPREME COURT OF

INDIANA?

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.

2. NOT COMMITTED CONTEMPT UNDER CONTEMPT OF COURTS ACT, 1971

2.1.Section 8 of the Contempt of Courts Act, 1971 provides that “Nothing contained in this Act shall

be construed as implying that any other defence which would have been a valid defence in any

proceedings for contempt of court has ceased to be available merely by reason of the provisions

of this Act.” Therefore, the general exceptions which are applicable in criminal proceedings can

also be used in contempt matters.

[2.1] Fair Criticism

2.1.1. Fair criticism refers to a common law privilege to criticize and comment on the matters of

public interest without being liable for defamation provided that the comment is an honest

expression of opinion and free of malice.116 Justice is not cloistered virtue: she must be allowed

to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man.117 No

action shall be called for, if the critisism is reasonable and is offered for the public good.118

2.1.2. In the present case, all the allegations and actions of the Petitioner were free of malice and

aimed at preserving larger public interest as he not merely made allegations but also pressed

the need for proper enquiry and investigation.

[2.2] Allegations of Corruption does not amount to contempt

2.2.1. Allegation of Corruption does not amount to contempt, as held in K. Veeraswami v. Union of

India119. The expression ‘public servant’, used in the Prevention of Corruption Act, is

undoubtedly wide enough to denote every judge, including judges of the HC and SC.120

2.2.2. In present case, the complaints were made by the petitioner at very first instance\ for

segregating him on account of his being a member of an under-privileged caste.121And as a

prudent man he waited for a reasonable time period, that is, 1 year allowing the aforesaid

authorities to process his complaint and provide for appropriate remedy.

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. 128Delhi 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


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:

In Writ Petition No. 45 of 2017:

1. That the order restraining the print and electronic media from publishing Justice Swami’s

contemptuous statements and orders should be set aside.

In SLP No. 567 of 2017:

1. That the SLP filed against the impugned order is maintainable.

2. That the order sentencing the Petitioners under the Scheduled Castes and Scheduled

Tribes Act, 1989 should be set aside.

3. That the order sentencing the Petitioners for contempt of Hon’ble High Court of East

Mengal should be set aside.

In SLP No. 987 of 2017:

1. That the SLP filed against the impugned judgment is maintainable.

2. That the judgment sentencing the Petitioner for contempt of the Hon’ble Supreme should

be set aside.

AND/OR

Pass any other order or relief it may deem fit and proper, in the interest of Justice, Equity and

Good Conscience.

All of which is most humbly and respectfully submitted.

S/d__________________

COUNSEL FOR THE PEITIONERS

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