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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 Respondents

TEAM CODE: NMCC-20

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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 – 17

8. Summary of Argument for SLP No. 567 of 2017 18

9. Arguments Advanced for SLP No. 567 of 2017 19 – 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

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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

SC/ST Scheduled Castes and Scheduled Tribes

SCC Supreme Court Cases

SCR Supreme Court Report

Supp. Supplementary

U.P. Uttar Pradesh

v. Verses

Vol. Volume

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INDEX OF AUTHORITIES

CASES

1. A. R. Antuley v. R. S. Naik, AIR 1988 SC 1531

2. Arunachala Nadar v. State of Madras, AIR 1959 SC 300

3. Commissioner of IT v Maganlal Chaganlal (P) Ltd. (1997) 11 SCC 557 (SC)

4. Commissioner v. Orissa Corp ltd. (1986) 159 ITR 0078 (SC).

5. Council of Scientific and Industrial Research v K. G. S. Bhatt (1989) AIR 1972 (SC)

6. E.S.P. Rajaram v. Union of India, AIR 2001 SC 581

7. In Re Arundhati Roy AIR 2002 SC 1375

8. In re Hon’ble Justice C. S. Karnan, (2017) 0 Supreme SC 461

9. In Re State of Uttar Pradesh AIR 1959 Allahabad 69

10. K. T. Chandy v. Mansaram, AIR 1974 SC 642

11. Kanoria industries Ltd. v. Union of India

12. Kunhammed v. Abdul Khader, 1977 KLT 840

13. M.C. Mehta v. Union of India AIR 2004 SC 4618

14. M.R.F. Ltd. v. Inspector Kerala Govt., AIR 1999 SC 188,191 : (1998) 8 SCC 227

15. Mohd. Osman Shaheed v. Mohd. Baquir Hussain Shaa, 1980 Cr. L.J. 845 at p. 851 (A.P.).

16. Narmada Bachao Andolan v. Union of India AIR 1996 SC 3345

17. Narpat Singh v. JDA (2002) 9 SCC 196

18. Nirma Ltd. v. Lurgi Lentges Energietechnik Gmbh Air 2002 SC 3695

19. P.N. Duda v. P. Shiv Shankar, AIR 1988 SC 1208

20. Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 : (1995) 1 SCC 501

21. Radha Mohan Lai v. Rajasthan High Court, AIR 2003 SC 467

22. Ram Chandra Mahapatra v. State of Orissa, AIR 1983 SC 508

23. Ramniklal Nanalal v. Shah Pranlal Nanchand, AIR 1952 Kutch 74

24. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) SCC 457

25. Shiamlal v. Emperor, 15 Cr.L.J. 595

26. State of H. P. v Kailash Chand Mahajan (1992) AIR 1277 (SC)

27. State of Karnataka v. Muniswami, AIR 1977 SC 148

28. State of U.P. v. Harish Chandra AIR 1996 SC 2173

29. The State of Uttar Pradesh v. Mohammed Naim AIR 1964 SC 703

30. State of U.P. v Ram Manorath (1972) 3 SCC 215 (SC)

31. Union of India v Rajeswari & Co.(1986) AIR 1748 (SC).

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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)

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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 India.

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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)

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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.

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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.

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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 is a reasonable restriction on the

Freedom of Press?

2. SLP No. 567 of 2017

(i) Whether the Special Leave Petition under article 136 of Constitution of Indiana is

maintainable?

(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?

(iv) 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?

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IMS Unison University, 5th NMCC, 2017

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 not maintainable under Article 32 of the

Constitution of Indiana [herein after referred as the Constitution]. In the present case the Writ

Petition is not an appropriate remedy on the ground of established principle that a judicial order

of a court could not violate a fundamental right and the judiciary is not regarded as a state in

concern with judicial power.

ISSUE 2: WHETHER THE IMPUGNED THE SUPREME COURT ORDER IS A REASONABLE

RESTRICTION ON THE FREEDOM OF PRESS?

It is humbly contented that the impugned Supreme Court Order putting limited restriction does

not violate any fundamental right, specially the Right to freedom of speech and expression

under Article 19(1)(a). The restriction that has been put is a reasonable one and is neither

excessive nor arbitrary. It is contented that freedom of press is not an absolute right,

restrictions were warranted by circumstances.

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IMS Unison University, 5th NMCC, 2017

ISSUE I: WHETHER THE WRIT PETITION NO. 45 OF 2017 FILED BY

NEWS CHANNEL INDIANA 24*7 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 not maintainable under Article 32 of the Constitution of

Indiana [herein after referred as the Constitution]. It is contended that the writ petition is not

maintainable [1.], Writ petition cannot be entertained in the present case [2.], Suitable Remedy is

a Bar to Maintainability [3.].

1. THE WRIT PETITION IS NOT MAINTAINABLE

1.1.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.1 The Apex Court in A. K. Gopalan v. The State of Madras2, observed that, “in

order to attract the application of article 32, the person applying must satisfy that he has got a

right under Part III of the Constitution which has to be enforced under article 32.”

1.2.In the present case, the Supreme Court by restraining the print and electronic media from

publishing Swami J.’s contemptuous statements and orders, has not violated the freedom of

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

19(1)(a).3 The gag order was reasonable and was issued under Article 19(2) and Article 1424 of

the Constitution to prevent the contempt of court and to ensure the confidence of the people

2. WRIT PETITION CANNOT BE ENTERTAINED IN THE PRESENT CASE

2.1.By and large Fundamental Rights are enforceable against the state (defined in Article 12) a few

Fundamental Rights are available against non-state actors also.5

1 Hindi Hitrashak Samiti v. Union of India, AIR 1990 SC 851 2 1950 AIR 27, 1950 SCR 3 All citizens shall have the right to freedom of speech and expression; 4 The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for

doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be

enforceable throughout the territory of India 5 Vishaka v. State of Rajasthan, AIR 1997 SC 3011

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2.2.The judiciary only while exercising administrative powers is subjected to the Fundamental

Rights6.

[2.1] Judiciary while exercising judicial powers is not ‘state’

2.1.1. This also fits in harmony with the concept of separation of powers and spares the judiciary or

the courts to dispassionately examine the constitutionality of State action allegedly curbing or

curtailing the fundamental rights and therefore, the judgments of the Supreme Court cannot be

subjected to writ jurisdiction.7 Thus, since the judiciary is not regarded as a state when the

judicial power is concerned8, in the present case, the petition is not maintainable.

2.1.2. It was held that final order of this Court cannot be challenged under Article 32 as violative of

fundamental right. 9 Basis of this as observed by the Supreme Court in A. R. Antulay v. R. S.

Nayak10, is: “In practice, every act made by a superior court is always deemed valid (though,

possibly, voidable) wherever it is relied upon. This exclusion from the rules of validity is

indispensable. Superior courts knew the final arbiters of the validity of acts done by other

bodies; their own decisions must be immune from collateral attack unless confusion is to

reign.” Thus, a judgment or an order passed by this Court will not be open to a writ even if an

error is apparent.11

2.3.Furthermore, allowing such writ petition to be entertained would mean laying down a completely

new law and exercising jurisdiction which has not been conferred by this Constitution of

Indiana.12 The authority that supreme Court orders are liable to writ petition in Article 32, is

applicable only on administrative orders and not for judicial orders.13 If any remedy is to be

sought, it is definitely not writ petition.In the present case, since the restraint/gag order was

passed by the Supreme Court, there exists conclusive presumption that such order does not

violate Article 19(1)(a) of the Constitution.

3. SUITABLE REMEDY IS A BAR TO MAINTAINABILITY

3.1 The suitable remedy against the order/judgment of the Supreme Court is right to review. The

judgment/order of the Supreme Court cannot be challenged under Article 32, as proved, however 6 Prem Chand Garg v Excise Commissioner, U.P. 1963 Supp. (1) SCR 885 7 Riju Prasad Sarma, etc. v. State of Assam & Ors., [2015] 9 SCC 461 8A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531; N. S. Mirajkar v. State of Maharashtra, 1967 AIR; Riju Prasad

Sarma, etc. v. State of Assam & Ors. [2015] 9 SCC 461 9 Rupa Ashok Hurra v. Ashok Hurra & Anr., (2002) 4 SCC 388 10 AIR 1988 SC 1531 11 Ibid 12 A.R. Antulya v. R. S. Nayak, AIR 1988 SC 1531 13 Prem Chand Garg v. Excise Comissioner (1963) Supp. 1 SCR 885 Clarified in Para 55 of AR Antuley case

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on the basis of the recognition of the principle: ‘to err is to human’, the Constitution provides the

remedy under Article 137 in respect of orders/judgments of the Supreme Court.

3.2 Rectification of an order thus stems from the fundamental principle that justice is above all. It is

exercised to remove the error and not for disturbing finality.14 Article 137 of the Constitution

provides substantive power to review any judgment or order, and here to review means to rectify

or recall.15 In A. R. Antulay v. R. S. Nayak16, it was held that the superior court can always correct

its own error brought to its notice either by way of petition or ex debito justitiae. It was further

observed that, a judgment or an order passed by this Court will not be open to a writ even if an

error is apparent. But in exercise of inherent jurisdiction, the Court’s judgment shall be amenable

to correction of an error, if it comes to the notice of the Court.17.

3.3 Thus, the petitioner in the present case should have approached the Hon’ble Apex Court even to

contest his claim of violation of fundamental Rights. The petitioner’s writ petition in the present

case is not maintainable on account of it being the wrong remedy.

ISSUE II: WHETHER THE IMPUGNED SUPRME COURT ORDER IS A

REASONABLE RESTRICTION ON THE FREEDOM OF PRESS?

It is humbly contented that the impugned Supreme Court Order putting limited restriction does

not violate any fundamental right, specially the Right to freedom of speech and expression under

Article 19(1)(a). The restriction that has been put is a reasonable one and is neither excessive nor

arbitrary. It is contented that freedom of press is not an absolute right [1.], restrictions were

warranted by circumstances [2.]

1. FREEDOM OF PRESS IS NOT AN ABSOLUTE RIGHT

1.1 It is possible that a right does not find express mention in any clause of Article 19(1) and yet it

may be covered by some clause therein18, which gives an additional dimension to Article 19(1).

1.2 However this right is not an absolute right as no right can be. It is liable to be controlled,

curtailed and regulated to some extent. The right to freedom of speech and expression can be

14 Lily Thomas & Ors. v. Union of India & Ors., 2000 (6) SCC 224 15 Ibid 16 AIR 1988 SC 1531 17 Radhey Shyam & Anr. v. Chhabi Nath & Ors., [2015] 5 SCC 423.;See also Rupa Ashok Hurra v. Ashok Hurra &

Anr. (2002) 4 SCC 388

18 Maneka Gandhi v. Union of India AIR 1978 SC 597; See also, Kharag Singh v. State of U.P. AIR 1963 SC 1295.

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curtailed on the ground of contempt of court as mentioned in 19(2) of the constitution which can

be curtailed when reasonable by a law made by legislature19.

1.3 However, courts having inherent powers can also restrict this right in the interest of public

institutions. Supreme Court has been given under Article 142 read with Article 12920 of

Constitution. Therefore Supreme Court has the power to restrict the right in the exercise of its

inherent powers.

1.4 Test of reasonability: In Papnasam case21 , the Supreme Court has stated that the following

principles and guidelines should be kept in view while considering the constitutionality of the

restriction imposed by it:

a) 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.22

b) There must be a direct and proximate nexus or reasonable connection between the

restriction imposed and the object sought to be achieved.23

c) A restriction imposed on a fundamental right guaranteed by article 19 must not be arbitrary,

unbridled, uncanalised and excessive and also not unreasonably discriminatory.

1.5 Any restriction on Fundamental right must fulfill following conditions to be a reasonable

restriction.

2. RESTRICTIONS ARE WARRANTED BY CIRCUMSTANCES

2.1 It is humbly contented that the restriction on media to prevent it from publishing any statement

or order passed by Shri Justice Swami is essential and therefore not arbitrary as this

precautionary measure is warranted by the given circumstances.

[2.1] Restrictions imposed to prevent the Contempt of Court and not to penalize media

2.1.1. It was held by Supreme Court that the power to punish contempt of court also include the

power to prevent contempt under Article 129 of the Constitution.24 Since Supreme Court under

its inherent powers can prevent contempt of court, it can pass any order to prevent any of the

above mentioned acts which constitute criminal contempt.25

2.1.2. In catena of cases Supreme Court has held that freedom of speech and expression can be

curtailed to prevent contempt of court under reasonable circumstances In C. Ravichandran Iyer

19 Contempt of Court Act, 1971 20 Supreme Court is a Court of Record. 21 Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200 : (1995) 1 SCC 501 22 M.R.F. Ltd. v. Inspector Kerala Govt., AIR 1999 SC 188,191 : (1998) 8 SCC 227 23 Arunachala Nadar v. State of Madras, AIR 1959 SC 300 24 Sahara v. SEBI, AIR 2012 SC 3829 25 Ibid

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v. Justice A.M. Bhattacharjee26, Supreme Court held that: “… It is true that freedom of speech

and expression is guaranteed by the Article 19(1)(a) of the constitution is one of the most

precious liberties in any democracy but equally important is the maintenance of respect for

judicial independence and integrity which alone would protect the life, liberty and reputation

of the citizen.’

2.1.3. Under the cover of freedom of speech and expression, no party can be given a license to

misrepresent the proceedings and orders of the court and deliberately paint an absolutely wrong

and incomplete picture which has the tendency to scandalize the court and bring it into dispute

or ridicule.27 The freedom of press does not entitle a person to commit contempt of court.28

2.1.4. In the present case, none of the allegations leveled by Justice swami were supported by any

material. His allegations were malicious and defamatory, and pointedly by name, against many

of the concerned Judges. Since the incident of contempt included public statements and

publication of orders made by the contemnor which were highlighted by electronic and print

media, the ban imposed on further publication is justified. These allegations, unfounfded and

unreasonable.

[2.2] Restriction imposed to protect administration of justice and public confidence

2.2.1. In exercise of powers conferred in Article 142 of Constitution upon Supreme Court, this Court

can pass any reasonable order in the interest of justice. As held in the case of Delhi Judicial

Services Association v. State of Gujarat29, once the court is in session of a matter before it, it

has the power to issue any order or direction to do complete justice in the matter and this

power cannot be limited by any law. This constitutional plentitude of the powers of the Apex

Court is to endure due and proper administration of justice and is intended to be co-extensive

in each case and to meeting any exigency30.

2.2.2. When taking up contempt proceedings by virtue of Article 129, Supreme Court has the scope

of exercising every power possible to meet the attendant circumstances in every case under

Article 142 of Constitution. In case of Hira Lal Dixit v. State of U.P31 the Court observed that

actual hindrance or obstruction in the administration of justice is not an essential. Supreme

Court has not restricted the publication and circulation of statements already made in order to

26 (1995) SCC 457 27 Narmada Bachao Andolan v. Union of India, AIR 1996 SC 3345 28 In Re Arundhati Roy AIR 2002 SC 1375. See also Radha Mohan Lai v. Rajasthan High Court, AIR 2003 SC 467. 29 AIR 1991 SC 2176 30 Ibid 31 AIR 1954 SC 743

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secure free discussion. Therefore the restriction on media houses is justified and necessary

under given circumstances.

3. RESTRAINT ORDER IS NOT EXCESSIVE

3.1 The restriction put must be in proportion of the mischief sought to be removed, that is, it shall

not be excessive. The law imposing restriction is proportional if it is meant to achieve a proper

purpose, and if the measures taken to achieve such a purpose are rationally connected to the

purpose and such measures are necessary.32

3.2 In the present case, by assuming position of a person of under-privileged caste, he leveled

obnoxious allegations against innumerable Judges of Supreme Court, Chief Justices of the High

Courts none of which were supported by any sound material. His allegations are defamatory and

malicious. The instant restraint order, however, does not prevent or hinder any public debate on

the matter, academic or otherwise as the media has not been restricted in any manner, other than,

to the limited extent expressed above. The media is still unrestricted in publishing and circulating

the information and statements already in public domain and facilitate healthy democratic

discussions in this behalf.

4. DUTY OF MEDIA TO BE RESPONSIBLE

4.1.Freedom is never absolute and goes hand in hand with responsibility.33 The press to be a true

servant of democracy should avoid true sensationalism, prejudicial publications, facts broadcast

too early without verification, vilification of individuals, an institution, a Court of Law.

4.2.In the present case, instances of wide media coverage, sensationalism and undue coverage of the

statements made by Justice Swami led to irreparable damage to the public confidence that

judiciary in general enjoys in the eyes of public. The press must set its ideals high.34 These

instances easily foresee the future instances which might take place in absence of any extra-

ordinary measures.

Therefore the restrain order does not hinder any fundamental right of Freedom of Speech and

expression beyond the permissible limits. Also, charging judiciary as an instrument of oppression

and judges as guided and dominated by caste bias and hatred 35 contempt of court and such

statements shall not be propagated.

32 Subramanian Swamy v. Union of India, W.P. (Crl) 184 of 2014 33 See p. 358 Report of Press Commission, part 34 Pennikemp v. Florida (1946) 328 US 331 35 EMS Namboodiripad v. T.N. Nambiar, AIR 1970 SC 2015

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IMS Unison University, 5th NMCC, 2017

SUMMARY OF ARGUMENTS

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

(SLP No. 567 of 2017)

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF CONSTITUTION

OF INDIANA IS MAINTAINABLE?

It is humbly submitted that the present Special Leave Petition filed by Appellant in The

Supreme Court of Indiana from the impugned order of the High Court of East Mengal is not

maintainable under Article 136 of Constitution. It is contended that the jurisdiction under

Article 136 is to be sparingly exercised, circumstances do not warrant the exercise of

jurisdiction in Article 136 and inference from a pure question of fact is in itself a fact and

hence not open to review.

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 guilty under the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is contended

that there should be liberal interpretation of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, the respondent is guilty under section 3(1)(r) of the Act,

section 3(1)(u) of the Act, 3(1)(za)(E) of the Act, there is presumption as to intention and the

quantum of punishment is justifies.

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 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

guilty of contempt of High Court of East Mengal. It is contended that there is jurisdiction to try

contempt case and that the orders of the 7 Judges of the Apex Court amount to contempt.

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IMS Unison University, 5th NMCC, 2017

ISSUE I: WHETHER THE SPECIAL LEAVE PETITION UNDER

ARTICLE 136 OF INDIANA CONSTITUTION IS MAINTAINABLE?

1. It is humbly submitted that the present Special Leave Petition [hereinafter referred to as SLP]

filed by Appellant in The Supreme Court of Indiana [ hereinafter referred to as SC] from the

impugned order of the High Court of East Mengal [ hereinafter referred to as HC] is not

maintainable under Article 136 of Constitution. Jurisdiction under Article 136 is to be exercised

sparingly [1.], Circumstances do not warrant the exercise of jurisdiction in Article 136 [2.],

Inference from a pure question of fact is in itself a fact and hence not open to review [3.].

1.1. The Hon’ble Apex Court has pointed out in its judgment36 that; …the exercise of jurisdiction

conferred by Article 136 of the Constitution on this Court is discretionary. It does not confer a

right on the petitioner to appeal. However, it is an exceptional powers to be exercised sparingly

with caution and care.’

2. CIRCUMSTANCES DO NOT WARRANT THE EXERCISE OF JURISDICTION IN ARTICLE 136

2.1. It is contended by the respondent that the appellant must show that exceptional and special

circumstances exists and that if there is no interference, substantial and grave injustice will

result and only then the court would exercise its overriding powers under Art. 136.

Special leave will not be granted when there is no failure of justice.37

[2.1] Presence of alternative remedy is a self-imposed restriction on powers in Article 136

2.1.1. The Court has imposed on itself a restriction that the aggrieved party must exhaust any remedy

which may be available under the law before the lower appellate authority or High Court.38

Ordinarily the Supreme Court does not hear an appeal ought to go to the Division Bench from

36 Narpat Singh v. JDA (2002) 9 SCC 196; M.C. Mehta v. Union of India, AIR 2004 SC 4618 37 Council of Scientific and Industrial Research v K. G. S. Bhatt (1989) AIR 1972 (SC); see also State of H. P. v

Kailash Chand Mahajan (1992) AIR 1277 (SC); M.P Jain, Indian Constitutional Law, ( 16th edn Lexis Nexis

Butterworth Wadhwa Nagpur 2011) 5776; see also Constitution of India,1950. 38 Nirma Ltd. v. Lurgi Lentges Energietechnik Gmbh Air 2002 SC 3695

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Single judge of the High Court.39 In the present case, Petitioners have not exhausted the

present remedy which is easy to avail and rather chose to invoke these powers which are to be

exercised sparingly for further review. Moreover a review of such petition is a suitable remedy

for examination of facts at hand and validity of order passed. Also after dismissal of SLP in

limine review petition is maintainable in HC.40

[2.2] No irregularity in procedure

2.2.1. In plethora of cases, it has been held that except that where there has been an illegality or an

irregularity of procedure or a violation of principle of natural justice resulting in the absence

of a fair trial or gross miscarriage of justice, the SC does not permit a review of evidences with

regard to question of fact in cases.41 It is submitted that the procedure adopted is appropriate

[A.] and there is not violation of principles of natural justice [B.]

[A.] Powers have been exercised properly

2.2.2. The powers have been exercised under Article 226 of The Constitution r/w Section 482 of

Code of Criminal Procedure, 1973 which saves the inherent powers of High Courts in India.

Both these provisions are reminder that they are not merely courts of law but also courts of

justice and possess inherent powers to remove injustice.42

2.2.3. In case of a judge a procedure other than that of SC/ST Act can be adopted. Section 482

Cr.P.C. envisages circumstances under which the inherent jurisdiction may be exercised to

otherwise secure the ends of justice. The ground to secure the ends of justice is of widest

possible amplitude. It is not possible or desirable or even expedient to lay down any inflexible

rule which would govern the exercise of the High Court’s inherent jurisdiction.43

2.2.4. Moreover, Judges (Protection) Act, 1985 shall not debar or affect in any manner the power of

the Central Government or the State Government or the Supreme Court of India or any High

Court or any other authority to take such action against any person who is or was a Judge44.

Therefore, the action taken by Swami J. under Atrocities Act, 1989 is totally justified under

39 State of U.P. v. Harish Chandra, AIR 1996 SC 2173 40 Kanoria industries Ltd. v. Union of India, 2005 (190) ELT 295 Kar 41 State of U.P. v Ram Manorath (1972) 3 SCC 215 (SC); see also UOI v Rajeswari & Co.(1986) AIR 1748 (SC). 42The State of Uttar Pradesh v. Mohammed Naim AIR 1964 SC 703; Re State of Uttar Pradesh AIR 1959

Allahabad 69 43 State of Karnataka v. Muniswami, AIR 1977 SC 1489; See R.P. Kapur v. State of Punjab, AIR 1960 SC 866;

Kunhammed v. Abdul Khader, 1977 KLT 840 44 Section 3(2) of Judges (Protection) Act, 1989

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Judges (Protection) Act, 1985 45 as being a High Court Judge, he had the powers to take the

impugned action against Supreme Court judges rather than reference to special courts.

2.2.5. Harmoniously constructing Judges (Protection) Act, 1985 and Atrocities Act, 1989, latter must

be read subject to former.46 Therefore in circumstances where accused under Atrocties Act,

1989 is a judge47, like in present case the judges of Supreme Court, procedure under Atrocities

Act must be subject to the special requirements of Judges (Protection) Act, 1985 and therefore

any deviation from procedure given in Atrocities Act will not affect the legality of conviction

in so far as it complies with Judges (protection) Act, 1969.

2.2.6. In the present case, passing of impugned order was of utmost necessity as all the efforts taken

by Swami J. were allowed to fail. He reasonably sought the assistance from appropriate

forums in order to secure the ends of justice the order was passed to punish the petitioners in

utmost necessity48 in situations where all other legitimate efforts failed to bring petitioners

under public scrutiny in the Houses of Parliament and in enquiry.

[B.] Facts of case constitute exception to principles of natural justice

2.2.7. No one can be a judge in his own case is a well established principle of natural justice.

However, there exist some of exceptions which are duly recognized in legal system. The

doctrine of necessity is an exception to ‘Bias’. If the choice is between either to allow a biased

person to act or to stifle the action altogether, the choice must fall in favour of the former as it is

the only way to promote decision-making.49

2.2.8. In the present case, all the efforts to bring the petitioners to justice had failed as the series of

orders and references of requested were not acted upon. In the ends of justice it was in utmost

necessity that the impugned order had to be passed.

2.2.9. Further, the issue of disrepute and promotion of feeling of hatred, ill-will has a wide-ranging

effect on entire protected community.50 Such actions constituting the ground would be proved

further. Where such public interest warranted immediate action, Court was not only duty

bound but was accountable to take such extreme actions.

45 Ibid 46 CIT v. Hindustan Bulk Carriers, [2002] 7 SCC 705 47 Section 2 of Judges (Protection ) Act, 1985 48 P.Sundaraparipooranan v. Union of India, on 30 April, 2009 49 S.P SATHE, (Lexis Nexis, 2004) 50 Section 3(1)(u) of Atrocities Act, 1989

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3. INFERENCE FROM A PURE QUESTION OF FACT IS IN ITSELF A FACT AND NOT OPEN TO REVIEW

3.1. Generally on finding of fact, no interference will be made.51 Even in cases where conclusions

are reached without proper discussion, yet if it involves finding on fact, no interference of SC is

called for.52

3.2. In the present case, what is sought to be reviewed is only finding of facts. After having ample of

opportunities to explain the actions taken by the petitioners, they never justified them53,

Supreme Court bench chose to initiate contempt proceeding rather than deal with the

circumstances reasonably. Furthermore, no actions were taken when Secretary Generals of Lok

Sabha and Rajya Sabha were sought to place the facts in the respective Houses.54 This was

followed by retaliatory orders from Apex Court which can be explained only by presence of

biases and prejudices in the minds of petitioners.

3.3. No substantial question of law- To be ‘substantial’ a question of law must be debatable, not

previously settled by law of the land or a binding precedent, and must have a material bearing

on the decision of the case, if answered either way, insofar as the rights of the parties before it

are concerned.55 Re-appreciation of evidence and substitution of the findings by the High Court

is impermissible.56 Present petition only seeks to avail an opportunity of appreciation of

evidences that they vehemently denied. Therefore they cannot be granted leave to appeal in

Article 136.

ISSUE II: WHETHER THE 7 JUDGES OF THE HON’BLE SUPREME

COURT 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 guilty under the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred

to as the Atrocities Act, 1989]. It is contended Liberal Interpretation of the Scheduled Castes and

51 Commissioner of IT v Maganlal Chaganlal (P) Ltd. (1997) 11 SCC 557 (SC). 52 Commissioner v. Orissa Corp ltd. (1986) 159 ITR 0078 (SC). 53 Moot Proposition Para 7 54 Moot Proposition Para 7 55 Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 (SC). 56 Commissioner of Income Tax v P. Mohanakala (2007) 210 CTR 20 (SC).

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Scheduled Tribes (Prevention of Atrocities) Act, 1989 [1.], Guilty under Section 3(1)(r) of the

Act [2.], Guilty under Section 3(1)(u) of the Act [3.] Guilty under Section 3(1)(za)(E) of the Act

[4.] Presumption as to Intention [5.] Quantum of Punishment is Justified [6.]

1. LIBERAL INTERPRETATION OF THE SC/ST ATROCITIES ACT, 1989

1.1.Established principle in the construction of beneficial statutes is that there should not be any

narrow interpretation.57 In case of a beneficial legislation, the court will not adopt a narrow

interpretation which will have the effect of defeating the very object and purpose of the Act.58

1.2.The preamble of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

provides that, “It is an Act to prevent the commission of offences of atrocities against the

members of the Scheduled Castes and the Scheduled Tribes...” From this it is reasonably inferred

that, this Act is a beneficial legislation It is completely in sync with the socialist and welfaristic

philosophy of the Constitution and Fundamental Right present in Article 14, 15 and

2. GUILTY UNDER SECTION 3(1)(R) OF THE ACT

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

being a member of a Scheduled Caste or a Scheduled Tribe, intentionally, insults or intimidates

with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place

within public view.

[2.1] Intention can be inferred from the conduct of accused

2.1.1. It is an established principle of criminal jurisprudence that intention mens rea even can be

inferred from the circumstance and the totality of the evidence led by prosecution to prove the

charge.59 The guilt of a person can be proved by circumstancial evidences also.60

2.1.2. The intention of the petitioners can be inferred from the unjustifiable acts of the petitioners

where the complaints made by Swami J. at very first instance, to the Chief Justice of Dravida

Nadu High Court and to the National Comission for Scheduled Castes and Scheduled Tribes

for segregating him on account of his being a member of an under-privileged caste.61 Swami J.

57 Modern Movies v SB Tiwari (1966) 1 Lab LJ 763 58Andhra University v. Regional Provident Fund Commissioner of Andhra Pradesh, (1985) 4 SCC 509 59 Patel Chunibhai Ranchhoddbhai vs Joitaram Rambhai Patel And Anr. 60 Vilas Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158 61 Para 3 of Moot Proposition

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

authorities to process his complaint and provide for appropriate remedy.62

2.1.3. As 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 petitioners, petiyioner 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 corruption63, Supreme Court bench chose to initiate contempt proceeding rather than

deal with the circumstances reasonably which shows intention to insult Swami J.

[2.2] Place within public view

2.2.1. Section 3(1)(r) speaks about the intentional insults or intimidation with intent to humiliate a

member of a Scheduled Caste or a Scheduled Tribe in any place within public view. The place

in which the alleged occurrence is said to have happened is immaterial and what is important is

the public view.64 We must, therefore, not confuse the expression `place within public view'

with the expression `public place' as place can be private place but yet within the public view.65

2.3.1. Furthermore, The accused must have knowledge about the fact that the victim belongs to

Scheduled Caste or Scheduled Tribe.66

2.3.2. Therefore, in the present case, Justice Swami, being himself a member of Judiciary and a party

to the contempt proceedings, the caste and community of Swami J. was known. Further, Justice

Swami himself in several letters and complaints made his caste evident67

3. GUILTY UNDER SECTION 3(1)(u) OF THE ACT

3.1. An accused is guilty under the Atrocities Act, 1989, if 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 Scheduled Castes or the Scheduled Tribes.68

62 Para 4 of Moot Proposition 63 Moot Proposition Para 7 64 M.Kalyani Mathivanan v. M.Parthasarathi, 2015 65 Swaran Singh & Ors v. State Tr.Standing Council & Anr. AIR 2008 SC 441 66 Nandikanuma Lakshmamma v. State Of Andhra Pradesh, 2008 (1) A.L.T. (Crl.) 385 (D.B), (A.P) 67 Section 8(c) of The SC/ST Act, 1989 : Presumption as to caste. 68 Section 3(1)(u) Of The Scheduled Castes And Scheduled Tribes (Prevention Of Atrocities) Act, 1989 (As Per The

Amended Act Of 2015)

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3.2. The Judicial as well as administrative actions taken against Swami J. is symbolic of biases and

prejudices in the minds of petitioners. Instead of resolving the issues raised by Swami J. by all

the legitimate means used by him, he was met with disregard, hatred and penalising actions.

There is no plausible explainantion for this course of conduct. Such actions have not only

brought disrepute to Swami J. but being a member of an under-privileged caste it also promoted

feelings of hatred against the members of the Scheduled Castes or the Scheduled Tribes.

3.3. Furthermore, taking away the judicia lpowers of Swami J. resulted in obstruction in profession of

the High Court judge under Section 3(1)(za)(E)

4. PRESUMPTION AS TO INTENTION

4.1.As per section 8 (b) of the Atrocities Act 1989, in a prosecution for an offence under this

Chapter, if it is proved that a group of persons committed an offence under this Chapter and if it

is proved that the offence committed was a sequel to any existing dispute regarding land or any

other matter, it shall be presumed that the offence was committed in furtherance of the common

intention or in prosecution of the common object.

4.2.In the present case the existing dispute has always been prejudices and biases against Swami J. .

Everything that happened or was done subsequently inter alia, the retaliatery orders of Apex

Court and order of appearing before medical board among others were undoubtedly inspired by

such biases against Swami J. .Therefore, the actions taken by Apex Court are in sequel of

existing dispute which raises a presumption under said section.

5. QUANTUM OF PUNISHMENT IS JUSTIFIED

5.1.There are no judicial or legislative guidelines as to the award of quantum of punishment.

Quantum of punishment lies in the arena of judicial discretion.

5.2.Moreover, in Alister Anthony Pareira v. State of Maharashtra69, the Court held that ‘ Prime

objectives of the criminal law is imposition of an just and proportionate sentence commensurate

with the nature and gravity of the crime and the manner in which the crime is done. What

sentence would meet the ends of justice depends on the facts and circumstances of each case and

the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence

and all other attendant circumstances.’

69 (2012) 2 S.C.C. 648, para. 69

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5.3.The present case is full of aggravating facts and circumstances. Primarily this case enfolds an

exceptional situation which is unprecedented so far. The case involved charges of biasness and

prejudices under Atrocities Act, 1989, and charges of contempt of High Court of East Mengal.

Inevitably, the cased did involve highest amount of public interest then ever seen. In order to

keep Indian Judiciary immunized from any kind of biases this much quantum of punishment is

completely justified. Courts of Justice are expected to show detachment, impartiality and

unbiased behavior being protectors of rights of people and in order to maintain public confidence

in Rule of law any step taken should be justified.

5.4.Therefore, the quantum of punishment in Atrocities Act, 1989 and for contempt of High Court of

East Mengal.

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 guilty of contempt of High Court of East Mengal. It is contended that

Jurisdiction to Try Contempt Case [1.], Acts of the 7 Judges of the Apex Court amount to

Contempt [2.]

1. JURISDICTION TO TRY CONTEMPT CASE

1.1.Article 215 of the Constitution of Indiana provides that the High Courts to be courts of record

This power to punish for its contempt summarily is the inherent power of a High Court70

[1.1] The power to punish for contempt not controlled by statute

1.2.The power of the High Court to commit for contempt of itself contained in Article 215 of the

Constitution cannot be abrogated, stultified or restricted by any other statutory provision

including the Contempt of Courts Act, 1971.71

1.3.The provisions can be used in presence of grounds to exercise the case. The Supreme Court in

Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court72, held that so far as

contempt of a High Court itself is concerned, the Constitution vests the inherent right in every

70 Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 295; High Court of Judicature at Allahabad v.

Raj Kishore, AIR 1997 SC 1186; Pallav Sheth v. Custodian, AIR 2001 SC 2763 71 Ibid 72 AIR 1954 SC 186

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High Court to punish for its contempt and no Act of a legislature could take away that

jurisdiction and confer it afresh by virtue of its own authority.

1.4.In the present case, the 7 Judges of the Supreme Court by initiating contempt proceedings and by

various orders committed contempt as per the grounds mentioned in (a), (d) and (e) (refer 1.1.)

(as contended later) and therefore, the High Court had sufficient authority to determine the case

under its power under Article 215, read with inherent power under Section 482 Cr.P.C., 1973.

2. ACTS OF THE 7 JUDGES OF THE APEX COURT AMOUNT TO CONTEMPT

2.1.In the case in hand, the petitioners by initiating suo moto contempt proceedings on 08.02.2017,

by issuing a bailable warrant and by taking away judicial work and powers from the Judge of

Hon’ble High Court on 10.03.2017 and by various other orders made insinuations derogatory to

the dignity of the Court which are calculated to undermine the confidence of the people in the

integrity of the Judges, affected the mind of the Judge of the High Court of the State of East

Mengal and deflected him from the strict performance of his duties. The order issued by the

petitioners, asking Justice Swami to appear before the Medical Board for his mental fitness

check-ups was on the mere acknowledgement of Justice Swami of his disturbed state of mind,

amounted to imputation of a kind which attacked the judge and in a way alleged Justice Swami

of incapacity to hold the office and deliver his judgments. All this imputations were styled to

scandalize the Court itself and affected the confidence of people in the High Court of the State of

East Mengal.

2.2.The Supreme Court in Brahma Prakash Sharma v. State of Uttar Pradesh73, held that publication

of a disparaging statement will be an injury to the public if it tends to create an apprehension in

the minds of the people regarding the integrity , ability or fairness of the Judge or to deter actual

or prospective litigants from placing complete reliance upon the Court’s administration of

justice or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge

of his judicial duties.74.

2.3.In case of Hira Lal Dixit v. State of U.P75 the Court observed that actual hindrance or obstruction

in the administration of justice is not an essential. The acts which may be derogatory and

resulting in the lowering of the authority of the Court in the eyes of the general public may also

73 1953 S.C.R. 1169 74 P.N. Duda v. V. P. Shiv Shankar & Others, 1988 SCR (3) 547 75 AIR 1954 SC 743

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result in contempt of Court. Further in the case of C.K. Daphtary v. O.P. Gupta76 it was held

that, any act which brings down the confidence of Judiciary in the mind of the general public or

is hindering the administration of justice amounts to contempt.

2.4.Casting reflection on the caliber of the bench amounts to contempt.77

2.5.In the present case, all the orders given by the 7 Judges of the Hon’ble Apex Court were of

nature that sufficiently created apprehension in the minds of actual and prospective litigants

about the incapacity of the High Court Judge by alleging him of unfitness in work and in mind.

Such imputations amounted to grave insult of a Judge of the High Court, who holds the

constitutional office and this was indeed the contempt of the Court as it caused embarrassment to

the Court and the Judge. In the present case, such orders amount to a contempt of the Court and

are not a mere libel or defamation as it was more than a mere insult and was calculated to harm

the confidence of the people in the Judiciary. Thus, to that effect the 7 Judges of the Hon’ble are

guilty of the conduct which amounts to the contempt of the High Court of the State of East

Mengal.

Therefore, it is humbly submitted that, the High Court had suitable and appropriate jurisdiction

to try the petitioners for the contempt of its Court under Article 215 of the Constitution. Further,

the orders of the Court amounted to an insult on the capacity of Swami J. to act as the Judge of

the High Court and this therefore tarnished the image of the High Court of the East Mengal in

specific and the entire judicial system in general. Thus, this act of lowering the confidence of the

people in judiciary is indeed an act of contempt for which the 7 Judges of the Hon’ble Supreme

Court of Indian are guilty.

76 AIR 1971 SC 1132 77 Devi v. State (1963) 1 Cr.LJ 540

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IMS Unison University, 5th NMCC, 2017

SUMMARY OF ARGUMENTS

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 Appellant in The Supreme

Court of Indiana from the impugned judgment of the SC only not maintainable under Article 136

of Constitution. It is contended that that no jurisdiction to grant leave in this case is conferred on

Supreme Court, no exceptional and special circumstances exist and substantial justice has been

done in the present case, a pure question of fact cannot be allowed to be raised in present case, in

presence of efficacious alternative remedy SLP is not maintainable.

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

reasonably and with jurisdiction and therefore, the Petitioner is guilty for contempt and the

conviction for contempt of the Supreme Court of Indiana does not suffer from patent illegality. It

is contended that there has been no procedural irregularities, no violation of principles of natural

justice and that the conviction of a sitting High Court Judge was proper.

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 guilty for the commission of contempt of Supreme

Court of Indiana. It is contended that the scope of contempt jurisdiction of Supreme Court under

article 129 of Constitution of India is not restricted by contempt of courts act, 1971 and the

alleged actions does not constitute contempt and therefore, the quantum of punishment is

justified.

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IMS Unison University, 5th NMCC, 2017

ISSUE 1: WHETHER SLP No. 987 of 2017 IS MAINTAINABLE UNDER

ARTICLE 136 OF CONSTITUTION OF INDIANA?

It is humbly submitted that the present Special Leave Petition [hereinafter referred to as SLP]

filed by Appellant in The Supreme Court of Indiana [ hereinafter referred to as SC] from the

impugned judgment of the SC only not maintainable under Article 136 of Constitution. It is

humbly submitted that no jurisdiction to grant leave in this case is conferred on Supreme Court

[1.], No exceptional circumstances exist and substantial justice has been done [2.], a pure

question of fact cannot be allowed to be raised in present case [3.]

1. NO JURISDICTION UNDER ARTICLE136 EXISTS TO DEAL WITH PRESENT SLP

1.1.In the exercise of the extraordinary powers, the Supreme Court will not assume a jurisdiction

which is not warranted by the provision of the constitution nor offer to provide a relief which has

been omitted in the constitution, for, that will tantamount to making legislation.78It is humbly

submitted that extraordinary powers in Article 136 does not confer powers on Supreme Court to

grant leave against its own judgment [1.1], no intra court appeal lies in Supreme Court on [1.2]

[1.1] Appeal in Article 136 against a Supreme Court judgment is not possible

1.1.1. The word ‘appeal’ is defined as the judicial examination of decision by a higher court of the

decision of inferior court.79 A right to appeal is therefore a right of entering a superior court

and invoking its aid and interposition to redress the error of the court below.80

1.1.2. The name ‘special leave to appeal’ suggest that the Supreme Court has the discretionary

power to grant leave to the applicant to file an appeal. In Delhi Judicial Services Assn. v. State

of Gujarat81, this Court held:

‘..The plenary powers of article 136 of this court confers the powers of judicial

superintendence over all the courts and tribunal in the territory of India like courts of

Magistrate and District Judge’

78 Janardhan Reddy v. The State, AIR 1951 SC 124 79 Laksmiratan Engineering Works v. Assistant Commissioner, AIR 1968 SC 488 80 STROUD’S DICTIONARY OF LAW VOL.1, p. 148 81 AIR 1991 SC 2176; Rajendra Kumar v. State, AIR 1980 SC 1510

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1.1.3. This provision confers plenary powers to hear appeal by granting leave.82 As per Supreme

Court rules, 1966 also provides for special leave to appeal from High Court or any other

Court to Supreme Court.83 In the present what is sought to be done is the reconsideration of

Supreme Court judgment via SLP which is not at all possible by reasonable interpretation of

the language of the provision and reading in the constitution the rules made by Supreme Court

under Article 136.

[1.2] No intra Court appeal to larger bench lies in Supreme Court on such petition

1.1.4. In Nidhi Kaim v. State of Madhya Pradesh and ors.84,

‘De novo (afresh) hearing of a case already decided by a larger bench of the

Supreme Court would amount to an intra-court appeal which is "permissible"

neither under the Constitution nor any existing law’

1.1.5. This Court also re-iterated that “reference of a case to a larger Bench necessarily should not be

on merits of the decision. The decision rendered by any Bench is final inter-parte, subject to

the power of review and the curative power. Any other view would have the effect of

conferring some kind of an appellate power in a larger Bench of this Court which

cannot be countenanced.85 Therefore present petition is not maintainable

2. NO EXCEPTIONAL CIRCUMSTANCES EXIST AND SUBSTANTIAL JUSTICE HAS BEEN DONE

2.1.A word of caution has always been given by SC in plethora of cases to the effect that judicial

discretion has to be exercised in accordance with law and set legal principles.86 It is humbly

submitted that no question of law exists [2.1], conviction is completely justified [2.2] No

violation of principles of natural justice has been violated [2.3].

[2.1] No question of law exists

2.1.1. The word ‘contempt’ has many connotations. In general, any matter is a contempt which has a

tendency to deflect the court from a strict and unhesitating application of the letter of the law or

in questions of fact from determining them exclusively by reference to evidences.

82 Durga Shankar v . Raghu Raj, AIR 1954 SC 520 83 Order XVI of the Rules of 1966 and reiterated in rules of 2013 84 CIVIL APPEAL NO. 1727 OF 2016 (SC) 85 Gopakumar B Nair v. CBI, (2014) 5 SCC 800; Nikhil Merchant v. Central Bureau of Investigation and

Another, [2009] 1 RLW(SC) 185; Gian Singh v. State of Punjab and Another, (2012) SCC 303; CBI, ACB, Mumbai

v. Narendra Lal Jain & Ors., AIR 2014 SC 1603 86 M.C. Mehta v. Union of India, AIR 2004 SC 4618

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2.1.2. Widest possible exercise of powers is a well settled law. Supreme Court in Om Prakash v. DK

Mittal87, has held that,

‘It is binding efficacy attaching with the commands of the court and the respect

for the orders of the court which deter the aggrieved persons from taking the law

in hand. Therefore any act or omission which undermines the dignity of courts is

therefore viewed with concern by the society’

2.1.3.There does not exist any question of law as to the power of Supreme Court to punish any

person of its contempt. As far as contempt proceedings against the sitting judge are concerned

no such bar exist either in statute or Constitution. Section 16 of Contempt of Courts Act, 1971

allows such action against a judge also. There is no anomaly as to that exercise of power.

[2.2] order punishing for contempt is completely justified

2.2.1. Supreme Court has duly exercised the power to punish for contempt. Petitioner’s demeanour

was found to have become aggressive, after this Court passed orders from time to time, in this

case. The contents of the letters addressed by him contained scandalous material. His public

utterances turned the judicial system into a laughing stock. The petitioner shielded himself

from actions, by trumpeting his position, as belonging to an under-privileged caste. When

such insinuations cause grave damage to the public image of this judiciary, Supreme Court’s

power to initiate suo-motu contempt proceedings can be easily justified.88

2.2.2. Since the relief is at the discretion of the Supreme Court, the Court may refuse it where the

conduct of the petitioner has been unconscionable.89 His unreasonable behavior to escape the

justice is evident from the facts of defiance of legal orders, continuing to attack judges and

label insinuations against them and finally absconding after being conviction. 90

[2.3] No breach of principle of natural justice has taken place

2.3.1. There are two principles of natural justice. The first principle is that 'No man shall be a judge

in his own cause' i.e. to say, the deciding authority must be impartial and without bias, which in

the present case is not violated on account of it being a matter of contempt proceedings and falls

in necessity. The next principle is audi alteram partem, i.e. no man should be condemned

unheard or that both the sides must be heard before passing any order, which is also not violated

as notice was given to the Petitioner and there is no denial as to it.

87 AIR 2000 SC 1136 88 In Re, Hon’ble Justice CS Karnan , (2017) 0 Supreme SC 461 89 Rasiklal Vaghajibhai Patel v. Ahmedabad MC, AIR 1985 SC 504 90 Central Bank of India v. Workmen, AIR 1960 SC 12

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3. A PURE QUESTION OF FACT CANNOT BE ALLOWED TO BE RAISED IN PRESENT CASE

3.1.It is contended by the Respondent that the appeal doesn’t involve any substantial question of law

rather it involves pure question of fact and hence, is not maintainable. Questions of fact cannot

be permitted to be raised unless there is material evidence which has been ignored by the high

court or the finding reached by the court is perverse.91

3.2.Even in cases where conclusions are reached without proper discussion, yet if it involves finding

on fact, no interference of SC is called for.92 In the present case, what is sought to be done is

only a re-examination of facts and nothing more. No question of law is involved in the present

case as already stated.

4.1.[Arguendo]Ordinarily, the Supreme Court will not exercise the jurisdiction under Article 136

unless the appellant has exhausted all other remedies open to him.93 Not only error of law or any

mistake but also violation of fundamental rights, principles of natural justice, fraud, lack of

jurisdiction are some of the grounds on which review petition can be filed.94

ISSUE II: WHETHER THE CONVICTION FOR CONTEMPT OF THE

SUPREME COURT OF INDIANA SUFFERS FROM PATENT

ILLEGALITY?

1. It is humbly submitted that the Respondent exercised its power to punish for contempt

reasonably and with jurisdiction and therefore, the Petitioner is guilty for contempt and the

conviction for contempt of the Supreme Court of Indiana does not suffer from patent illegality. It

is contended that there has been no procedural irregularities [1.], no violation of principles of

natural justice [2.] and that the conviction of a sitting High Court Judge was proper [3.].

2. NO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE

2.1.The two seminal and traditional principles of natural justice are:

(1) ‘Nemo judex in causa sua’ meaning ‘no man shall be a judge in his own cause’.

(2) ‘Audi alteram partem’ meaning ‘hear the other side’.

91 Union of India v Rajeshwari & Co. (1986) 161 ITR 60 (SC). 92 Amarchand Sobhachand v CIT (1971) AIR 720 (SC) 93 State of Bombay v. Ratilal Vadilal and Bros., AIR 1961 SC 1106 94 RS Nayak v. AR Antuley, AIR 1984 SC 684

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In the present case, these two principles of natural justice are not violated as contended

hereunder.

[2.1.] No violation of nemo judex in causa sua

2.1.1 This rule has certain exceptions and when a case falls in such exception, it is not regarded as

violation of the principle of natural justice.

2.2.1 Further, in In Re: Vinay Chandra Mishra95, it was held that, the contempt procedure does not

offend against the principle of natural justice, viz., Nemo judex in causa sua since the

prosecution is not aimed at protecting the Judge personally but protecting the administration of

justice. Also, in Delhi Judicial Service Association v. State of Gujarat96, the Supreme Court

held that the nature of contempt proceedings is in fact such that the Court is both the accuser as

well as the Judge of the accusation. [Arguendo] Further, it is important to reproduce an

American case of Re Linahan97, in which Frank J. of the U.S. Supreme Court, consciously

stated that, “If, however, ‘bias’ and ‘partiality’ to be defined to mean the total absence of pre-

conceptions in the mind of the Judge then no one has ever had a fair trial, and no one ever

will. The human mind even at infancy, is no blank piece of paper.”

[2.4] Violation of Audi Alteram Partem

2.4.1. The next principle is audi alteram partem, i.e. no man should be condemned unheard or that

both the sides must be heard before passing any order.

2.4.2. In the present case, all the principle of audi alteram partem has been followed throughout the

episode of feud between the Petitioner one side and the Judges of the Supreme Court on the

other side. When the Supreme Court initiated suo motu contempt proceedings on 08.02.2017

against the Petitioner, it asked for explanation but the Petitioner repeatedly ignored the orders

of the court. Further, when the bailable warrant was issued against the Petitioner on

10.03.2017, he chose to remain absent and unrepresented. He continued to remain defiant

throughout the proceedings and issued diktat from his home.

2.4.3. Thus, in both the contempt proceedings (1st initiated on 08.02.2017 and 2nd initiated in April,

2017), which were in continuance of each other, for being based on same cause of action and

facts in issue, ample of opportunities were provided to the Petitioner to represent himself and

95 AIR 1995 SC 2348 96 [1991] 4 SCC 97 (1943) 138 F 2nd 650 at 652.

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explain his side of story, but he chose to remain adamant and continued to dishonor those

opportunities.

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

3.1.It is humbly submitted that the conviction for criminal contempt of sitting High Court Judge is

improper for the following reasons and therefore, the conviction of the Petitioner is liable to be

set-aside.

a. Firstly, the power of the Supreme Court under Article 129 read with Article 14298 of the

Constitution is not restricted by any statue.99 No limitation is provided either in the Constitution

or any Statue preventing the conviction of a sitting judge of High Court or Supreme Court. The

language of the Constitution and the Contempt of Courts Act, 1971 provides no immunity to the

judges of the High Court.

b. Section 16 of the Contempt of Courts Act, 1961 provides that, “subject to the provisions of any

law for the time being in force, a judge, magistrate or other person acting judicially shall also be

liable for contempt of his own court or of any other court in the same manner as any other

individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.”100

This Act does not define a ‘Judge’. Taking reference from other Acts dealing with contempt and

privileges of Judges, everywhere ‘judge’ is defined to include Judges of the High Court and

Supreme Court.101 Therefore, in broad sense the High Court judges are not immune from the

contempt proceedings and the application of the Contempt of Courts Act, 1971.

c. To prevent the Supreme Court from massive embarrassment, even a sitting High Court judge can

be held guilty of contempt under Article 129 of the Constitution read with Article 142 of the

Constitution and Section 12 of the Contempt of Courts Act, 1971102.

d. As per the principles of rule of law, no 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.” Therefore, the Petitioner in the present case enjoy no special privilege and won’t be

given the liberty to continue to bad mouth his collegues and seniors at the cost of the Judicairy’s

image in general and therefore, sentence punishing him is justified.

98 Spencer & Co. v Vishwadarshan Distributers, [1995] 1 RLR 1 99 Vinay Chandra Mishra, in re, 1995 (2) SCC 584 100 Section 16(1) of Contempt of Courts Act, 1971 101 Section 19, IPC, 1860, Section 2(c), Judges (Enquiry) Act, 1968 and Section 2 of Judges Protection Act, 1985 102 In re Shri Justice Karnan, (2017) 0 Supreme SC 461

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e. Further, when the conduct of a High Court Judge is proved to be contemptuous (misconduct) but

fails to fall in the category of ‘proved misbehavior’ and ‘incapacity’ the Supreme Court can take

an action against such person in the form of self-regulation as in the present case.103

ISSUE III: WHETHER THE PETITIONER IS GUILTY FOR THE

COMMISSION OF CONTEMPT OF SUPREME COURT OF INDIANA?

1. It is humbly submitted that the petitioner is guilty for the commission of contempt of Supreme

Court of Indiana. It is contended that the scope of contempt jurisdiction of Supreme Court under

article 129 of Constitution of India is not restricted by contempt of courts act, 1971 [1.] and the

alleged actions does not constitute contempt [2.] and therefore, the quantum of punishment is

justified [3.].

2. ALLEGED ACTIONS AMOUNT TO CONTEMPT OF COURT

[2.1] Scope of Contempt of Court

2.1.1. No doubt the jurisdiction that the Court exercises in cases of alleged contempt is quasi-criminal

and the court must be satisfied on the material before it that contempt was in fact committed,

but that satisfaction may be derived from the circumstances of the case.104

2.1.2. Scurrilous abuse of judge amounts to scandalization of court: The Supreme Court has

said105 that scandalizing in substance is an attack on individual judges or the court as a whole

with or without referring to particular cases casting unwarranted and defamatory aspersions

upon the character or ability of judges. The chief forms of contempt includes insult to judges.106

2.1.3. Interference with the due course of any judicial proceeding: Any conduct (not being a

publication) which directly interferes with the due course of any judicial proceedings would

amount to “doing of another act” within the meaning of section 2(c) (ii) of the Contempt of

Courts Act, 1971.Conduct calculated and having tendency to produce an atmosphere of

103 C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) SCC 457 104 Bank of India v. Vijay Transport,(2000) 8 S.C.C. 512 at p. 525. 105 Brahma Prakash Sharma v. State of U.P., AIR 1954 SC 10. 106Namboodiripad, E.M. Sankaran v. Nambiar, T. Narayanan, AIR 1970 SC 2015

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prejudice in the midst of which the proceedings must always be regarded as contempt of

court.107

2.1.4. Interference with administration of justice: A scurrilous attack on a judge in relation to a

judgment of his or his past conduct has an adverse effect on the administration of justice. In

P.N. Duda v. P. Shiv Shankar108 it was explained that “Any criticism about the judicial system

or the judges which hampers the administration of justice or which erodes the faith in objective

approach of Judges and brings administration of justice into ridicule must be prevented.”

2.1.2. The present factual matrix clearly show all the elements listed in 2(c) of the Contempt of Courts

Act, 1971. The contemnor’s conduct right from his legitimate transfer to the time of contempt

proceedings before the Apex Court has grossly interfered with the administration of justice. His

adamant behaviour manifested in suo-motu stay on transfer in subsequent criticism and

altercations with the Supreme Court questioned his bona fides. Instead of acting reasonably

under the responsibility as a member of esteemed Indian Judiciary, he deliberately chose to

publicize the issue by writing letters109 containing baseless allegations of corruption.

2.1.5. Further, in order to take revenge for taking away his judicial powers, he further directed

investigations and issued retaliatory orders. After exhausting every possible way to humiliate

the Apex Court, he illegally convicted concerned Apex Court judges for 5-year as a final blow.

Such conduct would amount to interfering with the judicial proceedings pending in the highest

court of the land. Firstly, the truth of these allegations have not been proved and they are

naked allegations aimed to tarnish Apex Court’s dignity and public confidence and to attract

publicity. Secondly, the Apex Court while exercising power under Article 129 read with Article

142 is not restricted by the Section 13 of the Contempt of Courts Act, 1971.110 Therefore, the

conduct of the contemnor during the pendency of the proceedings in this Court certainly

constitutes criminal contempt falling heads of scandalizing the court as well as interference

with the proceedings of this court and thereby interfering with administration of justice.

[2.2] Allegations of Corruption against Judges amount to Contempt

2.2.1. Vilification of judges would lead to the destruction of the system of administration of justice.

Accusing judges of corruption results in denigration of the institution, resulting in lowering the

107 Court on its own motion: Rameshwar Dayal,(1967) 69 Punj. L.R. 33 at p. 38 (Delhi). 108 AIR 1988 SC 1208. 109 Para 7 of Moot Proposition 110 Vinay Chandra Mishra, in re, 1995 (2) SCC 584

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confidence of the public in the system of administration of justice, therefore, statements made

by the Appellants, accusing the judiciary of corruption lower the authority of the Court.111

2.2.2. Contempt includes Scandalizing the Judge himself by imputing corruption charges.112 It is

immaterial whether the attack on the judge is with reference to a cause about to be tried, or

actually under trial or recently adjudged; in each instance the tendency is to poison the

fountain of justice.113 The contemnor has been in the habit of addressing letters containing

allegations of corruption by the Dravida Nadu High Court and the Apex Court. Further, the

allegations made by the Petitioner were mere naked allegations, not substantiated by any

evidences and were intended only to attract publicity.114

[2.3]Transgression of limits of Fair Criticism

2.3.1. The limits of bona fide criticism are transgressed when improper motives are attributed to

judges. Imputations made against judicial officers without reasonable care and caution cannot

be said to be bona fide115.

2.3.2. In present case, none of the allegations leveled by Swami J. were supported by any material.

Through media, Swami J. has placed allegations on Judges, in the public domain; in fact, it

was highlighted as never before. In the background of the factual position summarized above,

there is no doubt that conduct on the part of the contemnor has brought disrepute to the

judicial system and has shook the confidence of citizen in the system and if tolerated, would

reflect an element of infirmity in the judicial system and no such weakness can be allowed.116

[2.4] Intention is not the gist of the contempt

2.4.1. Intention is not the gist of the contempt, what is to be seen is the effect of offending

publication.117 In proceedings for criminal contempt, the question is not so much of the

intention of the contemnor as whether it is calculated to interfere with administration of

justice.118 For the commission of offence of Contempt of Courts, no mens rea is required.119

111 Het Ram Beniwal & Ors. v. Raghuveer Singh & Ors., AIR 2016 SC 4940 112 U.P. Sales Tax Service Association v. Taxation Bar Association,(1995) 5 SCC 716 (para 11). 113 Emperor v. Murli Manohar Prasad, AIR 1929 Pat. 72 at p. 76. 114 Para 7 of Moot Proposition – remained defiant and continued to address press. 115Bathina Ramakrishna Reddy v. State of Madras, (1952) SCR 425 (434) 116 In Re, Hon’ble Shri Justice C. S. Karnan, (2017) 0 Supreme SC 461 117 Ramniklal Nanalal v. Shah Pranlal Nanchand, AIR 1952 Kutch 74 at p. 77. 118 In re P.C. Sen, AIR 1970 SC 1821 at p. 1824. 119 Mohd. Osman Shaheed v. Mohd. Baquir Hussain Shaa, 1980 Cr. L.J. 845 at p. 851 (A.P.).

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3. QUANTUM OF PUNISHMENT IS JUSTIFIED

3.1.In E.M.S. Namboodiripad, E.M. Sankaran v. Nambiar, T. Narayanan120, the Supreme Court

pointed out that the law of contempt stems from the inherent right of the superior court to punish

those responsible for obstructing the administration of justice. Continuous defiance of orders

requiring appearance in the court and deliberately ignoring and not availing the opportunity to

present all the facts, evidences, justifications, if any, which itself is punishable under Section

174 of IPC, 1860, shows that he is in habit of defying orders and thereby committing continuous

contempt of this Hon’ble Court. Also, the fact that the Petitioner has been evading the arrest,

proves the fact that he is incorrigible and does not desire to come to the ends of justice. It also

shows that he does not desire a sincere remedy from this court.121

3.2.[Arguendo] Even if apology is rendered by the Petitioner, it would itself be evident of the fact

of contempt of this court because apology may be accepted only upon a finding that contempt

has been committed.122

Faced with this unprecedented situation resulting from incessant questionable conduct of the

contemnor, the Supreme Court was justified in imposing maximum quantum of punishment

upon the delinquent. His conduct has brought administration of law into disrespect and

disregard, which has offended judiciary’s dignity, majesty and confidence in the eyes of public.

The incident is very unfortunate and the quantum of punishment should be such as to operate as

a deterrent for future. The punishment given to him was adequate and apt and aimed to atone for

his misconduct and to deal with the adamant and repeated outlook.

120 AIR 1970 SC 2015 121 Shiamlal v. Emperor, 15 Cr.L.J. 595 122 K. T. Chandy v. Mansaram, AIR 1974 SC 642; see also Ram Chandra Mahapatra v. State of Orissa, AIR 1983

SC 508.

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IMS Unison University, 5th NMCC, 2017

PRAYER

Wherefore in light of the issued raised, arguments advanced and authorities cited, it is humbly

prayed that this Hon’ble Court may be pleased to adjudge and declare:

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 upheld.

In SLP No. 567 of 2017:

1. That the SLP filed against the impugned order is not maintainable.

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

Tribes Act, 1989 should be upheld.

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

Mengal should be upheld.

In SLP No. 987 of 2017:

2. That the SLP filed against the impugned judgment is not maintainable.

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

should be upheld.

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 RSPONDENTS