9TH ASCENT MOOT COURT COMPETITION, 2020

9th ASCENT MOOT COURT COMPETITION, 2020

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

TEAM CODE: A9-114

IN THE MATTER OF

MR. UMAEWAMO SHINDERU ......PETITIONER

VERSUS

STATE OF SUMIMASEN ...... RESPONDENT

MEMORIAL FILED ON BEHALF OF RESPONDENT

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~MEMORANDUM FOR THE RESPONDENT~

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ....................................................................................... 4

INDEX OF AUTHORITIES ........................................... Error! Bookmark not defined.

STATEMENT OF JURISDICTION ............................................................................ 9

STATEMENT OF FACTS .......................................................................................... 10

STATEMENT OF ISSUES ......................................................................................... 12

I. SHOULD FUNDAMENTAL RIGHTS BE GIVEN MORE IMPORTANCE

THAN PARLIAMENTARY PRIVILEGES? ....................................................... 12

II. WHETHER LEGISLATIVE ASSEMBLY’S POWER TO PUNISH FOR

BREACH OF ITS PRIVILEGES IS THE SAME AS ITS POWER TO PUNISH
FOR ITS CONTEMPT? .......................................................................................... 12

III. WHETHER INDIAN STATE LEGISLATURES HAVE THE SAME

POWER, PRIVILEGES AND IMMUNITY AS COMPARED TO THE HOUSE
OF COMMONS IN ENGLAND? ........................................................................... 12

IV. WHETHER THE COURTS CAN INTERFERE IN THE

PROCEEDINGS OF THE HOUSE OR THE LEGISLATIVE ASSEMBLY? . 12

V. WHETHER THE PROVISIONS OF SECTION 63(3) OF THE

HUMANITARIAN ASSISTANCE FUND TAX ACT, 2020 ARE IN
VIOLATION OF PART III OF THE CONSTITUTION OF INDIA. ................ 12

SUMMARY OF ARGUMENTS ................................................................................. 14

ARGUMENTS ADVANCED ...................................................................................... 16

I. THE FUNDAMENTAL RIGHTS CANNOT BE PLACED ON A HIGHER
PEDESTAL AS COMPARED TO T HE POWERS, PRIVILEGES AND
IMMUNITY OF THE STATE
ASSEMBLY…………………………………15

1.1 IF LEGISLATURE PASSES A LAW CAN THAT LAW BE HELD VALID

IF IT VIOLATES FUNDAMENTAL
RIGHTS..............................................................................................................15

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1.2 SIGNIFICANCE OF PRINCIPLES OF NATURAL

JUSTICE.............................................................................................................15
II. THE POWER OF ISSUING SUMMONS AND TO PUNISH WAS WELL
WITHIN THE PRIVILEGE AND THE POWER OF THE POWER OF
THE
LEGISLATIVE………………………………………………………………16

III. THE ACTIONS TAKEN BY THE STATE ASSEMBLY WERE

ACCORDING TO THE STATUTES AS IS THE CASE WITH HOUSE OF
COMMONS.....................................................................................................17
1. STATE ASSEMBLY'S POWERS TO ISSUE SUMMONS AND
PUNISH……………………………………………………………………....17

IV. THE PROCEEDINGS TAKEN BY THE HOUSE IS AN INTERNAL

MATTER AND CANNOT BE SUBJECTED TO THE
COURT………………………..………………………………………………18
4.1 COURT’S EXAMINING THE VALIDITY OF THE SUMMONS ISSUED
BY THE
ASSEMBLY………………………………………………………………..18
4.2 REFUSAL OF ADVOCATE-GENERAL TO APPEAR IN
COURT……….19

V. WHETHER THE PROVISIONS OF SECTION 63(3) OF THE

HUMANITARIAN ASSISTANCE FUND TAX ACT, 2020 ARE IN
VIOLATION OF PART III OF THE CONSTITUTION OF
INDIA……………………………………………………………………….20
5.1 IN THE GIVEN CIRCUMSTANCES, THERE IS NO NEED TO PROVIDE
FOR REASONS SEPARATELY AND THE CORRECT INTERPRETATION
OF SECTION 63(3) OF HUMANITARIAN ASSISTANCE FUND TAX ACT,
2020 NEEDS TO BE
MADE……………………………………………………………………….20
5.2 THE SAID SECTION DOES NOT VIOLATE PRINCIPLE OF NATURAL
JUSTICE……………………………………………………………………….22
5.3 THE SAID SECTION IS NOT ARBITRARY THEREFORE; IT DOES NOT
VIOLATE ARTICLE 14 OF THE INDIAN
CONSTITUTION………………………………………………………..23
5.4 THE SAID SECTION DOES NOT VIOLATE THE FUNDAMENTAL
RIGHT TO INFORMATION UNDER SECTION 19 (1)(A) OF THE INDIAN
CONSTITUTION…………………………………………………………..24

PRAYER……………………………………………………………………………25

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LIST OF ABBREVIATIONS

& And
AC Appeal Cases
App. Div. Appeal Division
AIR All India Reporter
Art. Article
e.g. Example
Ed. Edition
HAFTA Humanitarian Assistance Fund Tax Act
Hon’ble Honourable
i.e. That is
No. Number
Para Paragraph
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sec. Section
v. Versus
Vol. Volume

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INDEX OF AUTHORITIES

A. STATUTES

1. The Constitution of India (1949).

B. TABLE OF CASES

S. No. Name of the Case and Citation

1. A.P. Board for Water Pollution Control vs. Andhra Pradesh Rayon’s Ltd.,
A.I.R. 1989 S.C. 611.
2. Anandilal vs. Ram Narain, (1984) 3 SCC 561.
3. Assistant Transport Commissioner, Lucknow vs. Nandsingh, A.I.R. 1980
SC 15.
4. Bhajaman Bobera vs. Speaker, Orissa Legislative Assembly (1989) AIR
1990 Ori 18.
5. Bradlaugh vs. Gossett (1884) 12 QBD 271 (DC).

6. Chairman, Board of Mining Examination and Chief Inspector of Mines vs.

Ramjee, A.I.R. 1977 S.C. 965.
7. Chief Justice, Andhra Pradesh vs. L.V.A. Dikshitulu, A.I.R. 1979 S.C. 193.
8. Collector of Central Excise vs. Parle Exports, A.I.R. 1989 S.C. 644.
9. Competition Commission of India vs. Steel Authority of India Limited,
(2010) 10 S.C.C. 744.
10. Dara Singh vs. State, A.I.R. 1981 SC 427.
11. Girdharilal and Sons vs. Balbirnath Mathur, (1986) 2 S.C.C. 237.
12. H.H. Shri Swamiji vs. Commissioner, Hindu Religious and Charitable
Endowments Department and others (1979) 4 S.C.C. 642.
13. Harish Chandra Raj Singh (Raja) vs. Deputy Land Acquisition Officer,
A.I.R. 1961 S.C. 1500.
14. Institute of Chartered Accountants of India vs. Price Waterhouse, A.I.R.
1998 S.C. 74.
15. J.P. Bansal vs. State of Rajasthan, (2003) 5 S.C.C. 134.
16. Jagannath Kashinath Kavalekar vs. Union of India, A.I.R. 1967 Del. 121.
17. Kartar Singh vs. State of Punjab 1994 (3) S.C.C. 569.
18. Keshav Singh vs. Speaker, Legislative Assembly AIR 1965 All 349, 1965
CriLJ 170.
19. Lav Nigam vs. Chairman and MD, ITI Ltd. & Another (2006) 9 S.C.C. 440.

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20. M.S.M. Sharma vs. Sri Krishna Sinha, AIR 1959 SC 395, 407.

21. Madanlal vs. State of U.P., A.I.R. 1975 S.C.

22. Padma Sundara Rao (dead) vs. State of Tamil Nadu. (2002) 3 S.C.C. 533.
23. Powers, Privileges and Immunities of State Legislatures, re, AIR 1965 SC
745, 780, 797.
24. Precision Steel and Engineering Works vs. Prem Deva, A.I.R. 1982 S.C.
1518.
25. Prithi Pal Singh vs. Union of India, A.I.R. 1982 S.C. 1413.
26. Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184, 373.
27. RMD Chamarbaugwala vs. Union of India, A.I.R. 1957 S.C. 628.
28. S. Narayanaswami vs. G. Panneerselvam, A.I.R. 1972 S.C. 2284.
29. Securities and Exchange Commission vs. Chenery Corporation, 318 U.S. 80.
30. South Asia Industries (Pvt.) Ltd. vs. S. Sarup Singh, A.I.R. 1966 S.C. 346.
31. State of Punjab vs. Qaisar Jehan Begum, A.I.R. 1963 SC 1604.
32. The view was reiterated in Union of India vs. Filip Tiago De Gama of Vedem
Vasco De Gama (1990) 1 S.C.C. 277.
33. Union of India vs. Mohan Lal Capoor & Others 1974 A.I.R. 87.

C. BOOKS & REPORTS

BOOK BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA, Page

(22nd 235-236
Edition)
BOOK G. WILLIAMS, ‘Language and the Law’, 61 LAW QUARTERLY
(10th REVIEW, at 73.
Edition)
BOOK Jain M.P., Jain S. N., PRINCIPLES OF ADMINISTRATIVE LAW 236
(4TH (2011).
Edition)
BOOK JOHN SALMOND , Jurisprudence, 152
(11th
Edition)
BOOK MAY, PARLIAMENTARY PRACTICE, 171
(16th
Edition)
BOOK MAY, PARLIAMENTARY PRACTICE 109,620
(7th
Edition)

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BOOK Noronha, Fredrick, ACCESS TO KNOWLEDGE: A GUIDE FOR

(5th EVERYONE 453 (2010).
Edition)
BOOK O. HOOD PHILLIPS, CONSTITUTIONAL LAW, 155-56
(2nd
Edition)

BOOK SIR PETER BENSON MAXWELL, Interpretation of Statutes, Page 94

(4th (1920)
Edition)
BOOK SIR WILLIAM BLACKSTONE, ‘Commentaries on the Laws of England’,
(2nd I at 59
Edition)
BOOK WADE, CONSTITUTIONAL LAW,155
(16th
Edition)

D. JOURNALS REFERRED

1. Choudhry, S., Legislature: Privileges and Process. he Oxford Handbook of the

Indian Constitution, 290-306, (2016).
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3096691

2. Makhan, S., Revisiting parliamentary ethics: A study of the privileges and

obligations of MPs. Journal of Politics and Governance, 312-318, (2013).
http://www.indianjournals.com/ijor.aspx?target=ijor:jpg&volume=2&issue=1an
d2&article=043
3. Raj, H., Evolution Of Parliamentary Privileges In India. The Indian Journal of
Political Science, Vol. 41 No.2, 295-308, (1980, June).
https://www.jstor.org/stable/41855027?seq=1

4. Singh, D., Parliamentary Privileges In India. The Indian Journal of Political

Science , 26, No.1, 75-85, (1965, January-March).
https://www.jstor.org/stable/41854062?seq=1

E. LAW DICTIONARIES

BOOK Oxford dictionary, pg.1138.

(10th
Edition)

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F. DATABASE REFERRED

1. www.advance.lexis.com
2. www.jstor.org
3. www.manupatrafast.com
4. www.scconline.com

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STATEMENT OF JURISDICTION

The respondent has approached this Hon’ble Supreme Court in pursuance of Article 194
of the Constitution of India. which empowers the State Legislatures to have its own
powers, Privileges and Immunities and of its Members.

The respondent shall accept the decision of the court as binding and final and shall abide
by the same in sincerity and in good faith.

All of which is humbly submitted.

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STATEMENT OF FACTS

BACKGROUND

On 15th January, 2020, the State of Sumimasen enacted the Humanitarian Assistance
Fund Tax Act (HAFTA) to levy a tax on sale of specified goods within the states. The
main objective of the act was to create a Fund to be utilised offering humanitarian
assistance. The Act empowered officers of the rank of Assistant HAFTA Collectors and
above to collect the tax from traders who sell such specified goods.

EFFECT ON PARTIES

The trading community became unimpressed by the HAFTA. HAFTA Collectors used
to turn up at random hours at their shops, and pass assessment orders, demanding
immediate payment of the tax. Seeing the effect of this Act on their business various
protests and bandhs were staged by the trading community against HAFTA.

PROCEEDINGS INITIATED BY THE PETITIONER

Mr. Umaewamo Shinderu, challenged the provisions of HAFTA before the High Court
of Sumimasen. Along with this, he began a public campaign against the HAFTA and Mr.
Nandesu, the Chief Minister of Sumimasen. The Legislative Assembly passed a
resolution on 24th January, 2020, a day after Mr. Shinderu made an exceptionally
incendiary speech, to reprimand him, and issued a summons demanding his presence on
31st January, 2020. He refused to appear before the house. The High Court dismissed his
Writ petition and ruled in favour of the State Assembly.

DISPUTE BEFORE THE APEX COURT

The petitioner approached by the Supreme Court by way of Special Leave Petition and
filed a writ petition before the Hon’ble Court. The Advocate General refused to appear
before the court. The Court appointed an amicus curiae for the same. The Court directed
the Petitioner to file combined written submissions for both the Petitions, and further
directed the Respondent in the Special Leave Petition, and the amicus curiae to file joint

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written submissions in the matter. The matter deeply reflects on the issue of public
importance.

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STATEMENT OF ISSUES

I. SHOULD FUNDAMENTAL RIGHTS BE GIVEN MORE IMPORTANCE THAN

PARLIAMENTARY PRIVILEGES?

1.1 IF LEGISLATURE PASSES A LAW CAN THAT LAW BE HELD VALID IF IT VIOLATES
FUNDAMENTAL RIGHTS

1.2 SIGNIFICANCE OF PRINCIPLES OF NATURAL JUSTICE

II. WHETHER LEGISLATIVE ASSEMBLY’S POWER TO PUNISH FOR BREACH

OF ITS PRIVILEGES IS THE SAME AS ITS POWER TO PUNISH FOR ITS
CONTEMPT?

III. WHETHER INDIAN STATE LEGISLATURES HAVE THE SAME POWER,

PRIVILEGES AND IMMUNITY AS COMPARED TO THE HOUSE OF
COMMONS IN ENGLAND?

3.1 STATE ASSEMBLY’S POWER TO ISSUE SUMMONS AND PUNISH

IV. WHETHER THE COURTS CAN INTERFERE IN THE PROCEEDINGS OF THE

HOUSE OR THE LEGISLATIVE ASSEMBLY?

4.1 COURT’S EXAMINING THE VALIDITY OF THE SUMMONS ISSUED BY THE

ASSEMBLY

4.2 REFUSAL OF ADVOCATE-GENERAL TO APPEAR BEFORE THE COURT

V. WHETHER THE PROVISIONS OF SECTION 63(3) OF THE HUMANITARIAN

ASSISTANCE FUND TAX ACT, 2020 ARE IN VIOLATION OF PART III OF THE
CONSTITUTION OF INDIA.

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5.1 IT VIOLATES THE FUNDAMENTAL RIGHT OF RIGHT TO INFORMATION

PROVIDED TO THE CITIZENS OF INDIA UNDER THE ARTICLE 19(1)(A) OF
THE INDIAN CONSTITUTION.

5.2 NOT FURNISHING REASONS WHILE ISSUING ASSESSMENT ORDER

VIOLATES PRINCIPLES OF NATURAL JUSTICE.

5.3 BEING INFORMED OF REASONS IS A PART OF BASIC HUMAN RIGHTS.

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SUMMARY OF ARGUMENTS

I. THE FUNDAMENTAL RIGHTS CANNOT BE PLACED ON A HIGHER

PEDESTAL AS COMPARED TO THE POWERS, PRIVILEGES AND
IMMUNITY OF THE STATE ASSEMBLY

Our Constitution has placed all laws on an equal pedestal and has given importance to
no one specific provision. It should be mentioned here that the provisions regulating or
defining the conduct of State Legislatures is no less than the fundamental rights enjoyed
by the citizens. So the mere right conferred upon the State legislatures is no less and
holds an equal footing as Part III of the Constitution. Both the provisions have equal
footing in their own respect and decision should be rendered by considering all facts and
circumstances at hand.

II. THE POWER OF ISSUING SUMMONS AND TO PUNISH WAS WELL WITHIN
THE PRIVILEGE AND POWER OF THE LEGISLATIVE ASSEMBLY

The provisions which govern the functioning of the State Legislatures explicitly state
that the State Legislatures have the power to issue summons, unspeaking orders and can
also punish for its contempt. It can take action not only with its members but also with
strangers. Each House of the State Legislature has the power to punish for breach of its
privileges or for contempt. These provisions make the State Legislatures authorised to
act in their self-interest and gives them immunity for the same.

III. THE ACTIONS TAKEN BY THE STATE ASSEMBLY WERE ACCORDING TO

THE STATUTES AS IS THE CASE WITH HOUSE OF COMMONS

Article 194 of the Indian Constitution gives certain privileges to the State Legislatures.
Each House is the sole judge of the question whether any of its privileges has been
infringed. Most of our law is based on the law followed in England. It is mentioned in
the Constitution that before any amendment each House and its members will be such as
those of the House of Commons in England. The House has the exclusive right to regulate

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its internal proceedings and to adjudicate upon matters arising within the House. The
power of the House to punish for its contempt is enjoyed because the House of Commons
is part of the High Court of Parliament as a superior court and the general warrants issued
by it could not be subjected to close scrutiny. Therefore, the House’s right to commit for
its contempt is enjoyed as a privilege.

IV. THE PROCEEDINGS TAKEN BY THE HOUSE IS AN INTERNAL MATTER

AND CANNOT BE SUBJECTED TO THE COURT

The Constitution under Article 194 has given State Legislatures the power to punish for
its contempt and has made each house the solo judge in this cause. If any House’s
privilege has been infringed the courts have no jurisdiction to interfere with the decision
of the House on this point. Once a privilege is held to exist it is for the House to judge
the occasion and its manner of exercise. The Court cannot interfere with an erroneous
decision by the House or its Speaker in respect of a breach of privilege. Therefore, State
Legislatures can proceed quasi-judicially in cases of contempt of its authority or take up
motions concerning its privileges and immunities in order to seek removal of
obstructions to the due performance of its legislative functions.

V. WHETHER THE PROVISIONS OF SECTION 63(3) OF THE HUMANITARIAN

ASSISTANCE FUND TAX ACT, 2020 ARE IN VIOLATION OF PART III OF
THE CONSTITUTION OF INDIA

The provisions of the Section 63(3) of the Humanitarian Assistance Fund Tax Act, 2020,
are valid and not in violation of The Fundamental Rights of the Citizens. In the given
circumstances, there is no need to provide for reasons separately and the correct
Interpretation of Section 63(3) of Humanitarian Assistance Fund Tax Act, 2020 needs to
be made. The said section does not violate Principle of Natural Justice, The said section
is not arbitrary hence it does not violate Article 14 and 21 of the Indian Constitution, The
said section does not violate the Fundamental Right to Information under Section 19
(1)(a) of the Indian Constitution.

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ARGUMENTS ADVANCED

I. THE FUNDAMENTAL RIGHTS CANNOT BE PLACED ON A HIGHER

PEDESTAL AS COMPARED TO THE POWERS, PRIVILEGES AND
IMMUNITY OF THE STATE ASSEMBLY

1.1 IF LEGISLATURE PASSES A LAW CAN THAT LAW BE HELD VALID IF

IT VIOLATES FUNDAMENTAL RIGHTS

The Supreme Court in the case of M.S.M. Sharma v. Sri Krishna Sinha1, held that “Only
rules and regulations made in excess of legislative powers could be questioned and not
the powers themselves. Article 194 was put there in the Constitution by the framers
simultaneously with other provisions. It therefore had an equal footing with other
provisions of the Constitution and unless expressly stated in the provision itself could
not be made subject to other provisions of the Constitution. All parts of the Constitution
were made by the same people and were equal. One could not be made more important
than the other. The Constitution itself said that powers, privileges and immunities would
be such as the Legislature would lay down. Even such a law would not be against the
fundamental rights. It would be in exercise of the constituent law. The Constitution
makers thought it best that they would not define the powers of the Legislature and left
to the Legislature to decide what powers it will have.” It would be essential to mention
here that the Constitution itself said that powers, privileges and immunities would be
such as the Legislature would lay down. Even such a law would not be against the
fundamental rights. It would be in exercise of the constituent law. The Constitution
makers thought it best that they would not define the powers of the Legislature and left
to the Legislature to decide what powers it will have.

1.2 SIGNIFICANCE OF PRINCIPLES OF NATURAL JUSTICE

1
M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 407.

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The constitution-makers themselves have said what the legislature's powers and
privileges are when it was being made as a statute by virtue of legally constitutional
powers so it could not be subject to fundamental rights. What the Constitution itself has
chosen to give is subject to fundamental rights is not a sound argument. No part of the
constitution can be said to be void and if one part is struck down then it would mean that
the Constitution itself has been struck down. Article 194 has to be given the status of
Constitution law. The powers, privileges and immunities given by Art. 194(3), are not
subject to Art. 19(1)(a) which guarantees Freedom Of Speech and Expression and
Article 21 which upholds a citizen’s Right to life and personal liberty and guarantees that
there would be no interference with the personal liberty of the citizen except according
to a procedure enacted by law. Here the liberty of the plaintiff has not been threatened
and the procedure which has been carried out has been done by law. The rules of natural
justice only apply when the statute or statutory rules are silent as to the procedure but no
statutory provision or statutory rule can be struck down where it makes a provision
excluding the application of rules of natural Justice. Under Article 194(3) the Legislative
Assembly has the power to inflict the same punishments which the House of Commons
can inflict for breach of its privilege. The act of summoning and punishing are in
pursuance of the power conferred by Article 194. It cannot be challenged on the ground
of violation of the principles of natural justice.

II. THE POWER OF ISSUING SUMMONS AND TO PUNISH WAS WELL WITHIN
THE PRIVILEGE AND POWER OF THE LEGISLATIVE ASSEMBLY

The Supreme Court in the case of Powers, Privileges and Immunities of State
Legislatures, Re2, held that "Powers, Privileges and Immunities are no doubt different in
the matter of their respective contents but perhaps in no otherwise. Thus the right of the
House to have absolute control of its internal proceedings may be considered as its
privilege, its right to punish one for contempt may be more properly described as its
power, while the right that no member shall be liable for anything said in the House may
be really an immunity". The Supreme Court in the case of Raja Ram Pal v. Hon’ble

2
Powers, Privileges and Immunities of State Legislatures, Re AIR 1965 SC 745, 780, 797

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Speaker, Lok Sabha3 dismissed the writ petition filed by the members of parliament and
upheld the parliament’s action of their expulsion by holding that “Such a privilege did
not fall within the privilege of a house to regulate its constitution but it fell within the
privilege to punish for its contempt.” The House has the exclusive right to regulate its
internal proceedings and to adjudicate upon matters arising within the house. Article 122
of the constitution reiterates this fact and states that validity of any proceedings shall not
be questioned on the ground of any alleged irregularity of procedure, and no officer or
member of parliament in whom powers are vested by or under the constitution for
regulating the procedure or the conduct of business or for maintain order in Parliament
shall be subject to the jurisdiction of any court in respect of the exercise by him of those
powers. This provision clearly states that the legislative assembly was completely
independent and had the freedom to carry out its ow internal affairs. Thus the summons
which were issued by the house were its own internal matter and no outside person or
organisation can influence its proceedings.

III. THE ACTIONS TAKEN BY THE STATE ASSEMBLY WERE ACCORDING TO

THE STATUTES AS IS THE CASE WITH HOUSE OF COMMONS

3.1 STATE ASSEMBLY’S POWER TO ISSUE SUMMONS AND PUNISH

The Supreme Court in the case of M.S.M. Sharma v. Sri Krishna Sinha 4, held that “The
latter part of Article 194(3) confers all these powers, privileges and immunities on the
House of the Legislature of the States, as Article 105(3) does on the House of Parliament.
It is said that the conditions that prevailed in the dark days of British history, which led
to the Houses of Parliament to claim their powers, privileges and immunities, do not now
prevail either in the United Kingdom or in our country and that there is, therefore, no
reason why we should adopt them in these democratic days. Our Constitution clearly
provides that until Parliament or the State Legislature, as the case may be, makes a law
defining the powers, privileges, and immunities of the House, its members and
committees, they shall have all the powers, privileges and immunities of the House of

3
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184, 373
4
M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 407.

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Commons as at the date of the commencement of our Constitution and yet to deny them
those powers, privileges and immunities, after finding that the House of Commons had
them at the relevant time, will be Dot to Interpret the Constitution but to re-make it."

The House of Commons has power to enforce its privileges and to punish those whether
members or strangers who infringe them. Each house also has the privilege to punish
members or strangers for contempt. Thus the House has two powers: to punish for the
breach of its specific or defined privileges and to punish for the contempt of the house.
May says that “actions which, while not breaches of any specific privilege , are offences
against its authority or dignity, such as disobedience to its legitimate commands or libels
upon itself, its officers or its members though often called breach of privilege, are more
properly distinguished as ‘contempt’.” 5

In Parliamentary language, the term “breach of privilege” is sometimes used as a

synonym for “contempt”, But it is clear that a member of the House or other person may
be adjudged by the House of Commons to be guilty of contempt without the actual
infringement of any parliamentary privilege.”6 It is pertinent to mention here that if in
the exercise of its power to punish a person for its contempt, either House commits a
person for contempt of privilege which is not specified in the warrant for example an
unspeaking warrant, the courts then are powerless and they have no power to examine
its legality.

IV. THE PROCEEDINGS TAKEN BY THE HOUSE IS AN INTERNAL MATTER

AND CANNOT BE SUBJECTED TO THE COURT

4.1 COURT’S EXAMINING THE VALIDITY OF THE SUMMONS ISSUED BY

THE ASSEMBLY

The Supreme Court in the case of Powers, Privileges and Immunities of State
Legislatures, Re7 held that “the power to punish for its contempt and non-interference of

5
O. Hood Phillips, Constitutional Law (2nd Ed.) 155-56
6
Wade, Constitutional Law (16th Ed.) 155.
7
Powers, Privileges and Immunities of State Legislatures, re, AIR 1965 SC 745, 780

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the courts in the matter of contempt was enjoyed because the House of Commons is part
of the High Court of Parliament as a superior court and the general warrants issued by it
could not be subjected to close scrutiny just as similar warrants issued by the other
superior courts of record were held to be exempted from such scrutiny.” In the case of
M.S.M. Sharma v. Sri Krishna Sinha8, the Supreme Court held “The validity of the
proceedings inside the legislature of a state cannot be called in question on the allegation
that the procedure laid down by the law had not been strictly followed. No court can go
into those questions which are within the special jurisdiction of the legislature itself,
which has the power to conduct its own business.” The Hon’ble Court in the case of
Bradlaugh v. Gossett9 held “Some rights are to be exercised out of Parliament, others
within the walls of the House of Commons. Those which are to be exercised out of
Parliament are under the protection of this court, which, as has been shown in many
cases, will apply proper remedies if they are in any way invaded, and will in so doing be
bound, not by resolutions of either House of Parliament, but by its own judgment as to
the law of the land, of which the privileges of Parliament form a part. Others must be
exercised, if at all, within the walls of the House of Commons: and it seems to me that,
from the nature of the case, such rights must be dependent upon the resolutions of the
House.”

4.2 REFUSAL OF ADVOCATE-GENERAL TO APPEAR BEFORE THE

COURT

Article 212(1) of the Constitutions prohibits scrutiny by Court with regard to the validity
of any proceeding in the Legislature of a State on the ground of irregularity of procedure
by stating that “The validity of any proceedings in the Legislature of a State shall not be
called in question on the ground of any alleged irregularity of procedure.” Article 212(2)
makes an officer or member of the Legislature of a State immune from the jurisdiction
of the Court on whom powers are vested by or under the Constitution in respect of
exercise of those powers by him by stating that “No officer or member of the Legislature
of a State in whom powers are vested by or under this Constitution for regulating
procedure or the conduct of business, or for maintaining order, in the Legislature shall

8
M.S.M Sharma v. Sri Krishna Sinha AIR 1960 SC 1186: (1961) 1 SCR 96
9
Bradlaugh v. Gossett (1884) 12 QBD 271 (DC)

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be subject to the jurisdiction of any court in respect of the exercise by him of those
powers.” In view of clause (3) of Article 194 the impugned proceedings against the
petitioner must be held to be a proceeding in the Legislature of the State, within the
meaning of Article 212 of the Constitution and, therefore, the bar of jurisdiction
contained in Article 212 of the Constitution would apply.

The Hon’ble Orissa High Court in the case of Bhajaman Bobera v Speaker, Orissa
Legislative Assembly10 dealt with an important question regarding the meaning of
illegality v irregularities. The court upheld the judgment of the Hon’ble Supreme Court
in the case of M.S.M Sharma v. Sri Krishna Sinha11 and said that if an action of the House
is irregular then the court can’t interfere in the proceedings of the legislative assembly
since it is an internal matter of the House as compared to illegality which is altogether
illegal. Hence, the court clearly differentiated the meaning between these two terms.

V. WHETHER THE PROVISIONS OF SECTION 63(3) OF THE HUMANITARIAN

ASSISTANCE FUND TAX ACT, 2020 ARE IN VIOLATION OF PART III OF
THE CONSTITUTION OF INDIA.

It is humbly submitted before the Hon’ble Supreme Court that the provisions of the
Section 63(3) of the Humanitarian Assistance Fund Tax Act, 2020, are valid and not in
violation of Part III of the Constitution of India; as firstly
[A] in the given circumstances, there is no need to provide for reasons separately and the
correct Interpretation of Section 63(3) of Humanitarian Assistance Fund Tax Act, 2020
needs to be made, secondly,
[B] The said section does not violate Principle of Natural Justice, thirdly
[C] The said section is not arbitrary hence it does not violate Article 14 and 21 of the
Indian Constitution, fourthly,
[D] The said section does not violate the Fundamental Right to Information under Section
19 (1)(a) of the Indian Constitution.

10
Bhajaman Bobera vs Speaker, Orissa Legislative Assembly (1989) AIR 1990 Ori 18
11
M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 407.

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5.1 IN THE GIVEN CIRCUMSTANCES, THERE IS NO NEED TO PROVIDE

FOR REASONS SEPERATELY AND THE CORRECT INTERPRETATION OF
SECTION 63(3) OF HUMANITARIAN ASSISTANCE FUND TAX ACT, 2020
NEEDS TO BE MADE.

It is submitted before the honourable court, that in order to understand a statute, the true
intention of the makers of the statute needs to be understood. 12 The true intentions of the
statute13 or Mens legis14 is to be looked at.15 At times, in a statute,16 the words try to give
out something17 but they come18 out as meaning something19 absolutely different.20 In
the case of Lenigh Valley Coal Co. v. Yensavage21, Hand L, J. observed that “Statutes
should be construed, not as theorems of Euclid but words must be construed with some
imagination of the purposes which lie behind them”. When the meaning of a statute 22
becomes ambiguous, the meaning of the statute 23 is to be derived from the context24 of
the statute. According to BLACKSTONE25 the most fair and rational method for
understanding a statute is by exploring the intention of the Legislature through the most
natural and probable signs which are ‘either the words, the context, the subject-matter,
the effects and consequence, or the spirit and reason of the law’. It is stated by IYER, J.

12
JOHN SALMOND , Jurisprudence, 11th Edition, 152.- ‘The object of interpreting a statute is to ascertain
the intention of the Legislature enacting it:’ South Asia Industries (Pvt.) Ltd. v. S. Sarup Singh, A.I.R.
1966 S.C. 346 (India). See further S. Narayanaswami v. G. Panneerselvam, A.I.R. 1972 S.C. 2284 (India).
13
Chief Justice, Andhra Pradesh v. L.V.A. Dikshitulu, A.I.R. 1979 S.C. 193(India)
14
Kartar Singh v. State of Punjab 1994 (3) S.C.C. 569 (India).
15
RMD Chamarbaugwala v. Union of India, A.I.R. 1957 S.C. 628 (India); Girdharilal and Sons v.
Balbirnath Mathur, (1986) 2 S.C.C. 237 (India); Competition Commission of India v. Steel Authority of
India Limited, (2010) 10 S.C.C. 744 (India)
16
G. WILLIAMS, ‘Language and the Law’, 61 LAW QUARTERLY REVIEW, at 73.
17
Institute of Chartered Accountants of India v. Price Waterhouse, A.I.R. 1998 S.C. 74 (India)
18
J.P. Bansal v. State of Rajasthan, (2003) 5 S.C.C. 134 (India)
19
Prithi Pal Singh v. Union of India, A.I.R. 1982 S.C. 1413 (India)
20
“Each word is but a symbol which may stand for one or a number of objects”: Deputy Chief Controller
of Imports and Exports v. K.T. Kosalram, (1970) 3 S.C.C. 82 (India) “Words and phrases take colour and
character from the context and the times and speak differently in different contexts and times”- Municipal
Corporation, Delhi v. Mohd. Yasin, (1983) 3 S.C.C. 229 (India).
21
The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama (1990) 1
S.C.C. 277 (India) and Padma Sundara Rao (dead) v. State of Tamil Nadu. (2002) 3 S.C.C. 533 (India)
22
SIR PETER BENSON MAXWELL, Interpretation of Statutes, Page 94 (1920)
23
A.P. Board for Water Pollution Control v. Andhra Pradesh Rayon’s Ltd., A.I.R. 1989 S.C. 611 (India)
24
Collector of Central Excise v. Parle Exports, A.I.R. 1989 S.C. 644 (India).
25
SIR WILLIAM BLACKSTONE, ‘Commentaries on the Laws of England’, I at 59; referred to in
Atmaram Mittal v. Iswar Singh Punia, A.I.R. 1988 S.C. 2031 (India) ; State of U.P. v. Radheyshyam,
A.I.R. 1989 S.C. 682; District Mining Officer v. Tata Iron & Steel Co., A.I.R. 2001 S.C. 3134 (India).

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that “to be literal in meaning is to see the skin and miss the soul. The judicial key to
construction is the composite perception of the deha (body) and the dehi (soul) of the
provision.”26 a literal and mechanical construction may27 have to be disregarded if it
conflicts28 with some essential requirement of fair29 play and natural justice which the
Legislature30 never intended to throw overboard. 31

It is submitted that in the given case, Section 63(3) of the Humanitarian Assistance Fund
Tax Act, 2020, when read alone seems to violate various Fundamental Rights. But the
said section is not to be read alone. When read with Section 61 of HAFTA 32 and with
Section 63(1) of HAFTA33, it can be seen that an assessment order is being passed in the
given case only when complete assessments of books of accounts are being made and no
claim is being made by the HAFTA Tax Collector except by making a proper assessment
of the account. Therefore, when all the calculations are being made in front of the traders,
the need for furnishing reasons separately vanishes. The calculations and assessments
made by the HAFTA Collector, act themselves as reasons as to why the tax is being
levied.

Hence, it is most humbly submitted before the Hon’ble court to interpret the said section
in question in accordance with the context of the statute and not to interpret the said
Section separately. While dismissing the Writ Petition of Mr. Shinderu, the High Court
of Sumimasen had observed that the provisions of Section 63(3), whereby reasons are
not required to be given for passing an assessment order, are not in violation of the
Constitution. It held that given the very nature of the assessment, and the structure of the

26
Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee, A.I.R. 1977 S.C. 965
(India).
27
Harish Chandra Raj Singh (Raja) v. Deputy Land Acquisition Officer, A.I.R. 1961 S.C. 1500 (India).
28
Madanlal v. State of U.P., A.I.R. 1975 S.C.
29
Assistant Transport Commissioner, Lucknow v. Nandsingh, A.I.R. 1980 SC 15 (India).
30
Dara Singh v. State, A.I.R. 1981 SC 427 (India); Precision Steel and Engineering Works v. Prem Deva,
A.I.R. 1982 S.C. 1518 (India).
31
State of Punjab v. Qaisar Jehan Begum, A.I.R. 1963 SC 1604 (India); See further Anandilal v. Ram
Narain, (1984) 3 SCC 561 (India).
32
61. Assessment of tax—"No claim for tax shall be made by the Collector except by making an
assessment for the amount”- Humanitarian Assistance Fund Tax Act, 2020.
33
63. Default Assessment—(1) “If any trader fails to furnish returns required under this Act by the
prescribed date, the Collector shall visit the shop of the trader concerned during reasonable hours and,
upon verification of the books of accounts and material presented to him by the trader thereat, assess the
tax payable to the best of his judgement, for the period for which return has not been filed.”

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statute, though it is desirable that reasons are given for the assessment, the State of
Sumimasen cannot be faulted for legislating that such reasons need not be given. 34 By
this, it can be seen that the Hon’ble high court of Sumimasen too was of the opinion that
the said section is not be read alone but with the context of the legislation. Therefore,
when read with context, the Section 63(3) of the HAFTA does not violate any rights
hence, it is not unconstitutional.

5.2 THE SAID SECTION DOES NOT VIOLATE PRINCIPLES OF NATURAL

JUSTICE.

It is submitted that bring given reasoned orders is a part of Natural Justice35. Reason is
the soul of the law, and when the reason of any particular law ceases, so does the law
itself36. Every judicial order has to contain sound reasons. It is presumed that if valid
reasons are not found in the order, such an order becomes erroneous. Recording of
reasons in support of a decision on a disputed claim ensures that the decision is not a
result of caprice, whim or fancy but was arrived at after considering the relevant law and
that the decision was just. Natural justice requires reasons to be written for the
conclusions made.37

It is submitted that the legislature is aware of the fact that recording of reasons in an order
is a part of the Principle of Natural Justice. By not recording reasons in an order, not only
the Rights of a person are violated, but also it deprives him from an opportunity to appeal
for judicial review of the decision. Not recording a reason will mean that the officer who
is passing the assessment order, might get a chance to work maliciously. 38

It is submitted, that the Principle of Natural Justice of a person will be violated, only if
he is denied of valid reasons when an assessment order is passed against him. But, in the
given case, the assessment that the officer will be doing by looking at the books of

34
6, ASCENT: Moot Proposition 2020.
35
Jagannath Kashinath Kavalekar v. Union of India, A.I.R. 1967 Del. 121 (India).
36
H.H. Shri Swamiji vs. Comissioner, Hindu Religious and Charitable Endowments Department and
others (1979) 4 S.C.C. 642 (India).
37
Union of India vs Mohan Lal Capoor & Others 1974 A.I.R. 87 (India).
38
Lav Nigam v. Chairman and MD, ITI Ltd. & Another (2006) 9 S.C.C. 440 (India).

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account39 of the trader and by looking at the materials provided to him. All the
calculations and default on the part of the trader will be right there in front of his eyes 40.
Therefore, it is submitted that there will be no need to provide for reasons separately.
Therefore, the Principle of Natural Justice of providing for reasons while passing an order
will not be violated.

5.3 THE SAID SECTION IS NOT ARBRITRARY THEREFORE; IT DOES NOT

VIOLATE ARTICLE 14 OF THE INDIAN CONSTITUTION.

It is submitted that a law is considered arbitrary if it is unreasonable. A law is supposed

to be just, fair and reasonable in order to not be arbitrary. It is said that if an order is not
speaking, it is considered ex facie arbitrary. 41 In Maneka Gandhi v. Union of India42,
Bhagwati, J. has said that “Article 14 “ensures fairness” in state action and any procedure
which is not “right and just and fair” and is arbitrary, fanciful or oppressive” will be
invalid under this article.”

It is submitted before the hon’ble court that by the plain reading of Section 63(3) of the
Humanitarian Assistance Fund Tax Act, 2020. the section might seem to be arbitrary
because of its nature of not providing for reasons for the assessment order. But, with the
contextual interpretation of the said section, as explained above, it can be clearly seen,
that said section does provide for reasons eventually. Therefore, the said section does not
fall under the definition of an arbitrary law. Hence, it does not violate the said articles of
the Indian Constitution.

5.4 THE SAID SECTION DOES NOT VIOLATE THE FUNDAMENTAL RIGHT
TO INFORMATION UNDER SECTION 19(1)(a) OF THE INDIAN
CONSTITUTION.
It is humbly submitted that the right to know is part of the fundamental right of freedom
of speech and expression guaranteed under Article 19(1)(a) of Constitution of India. It is

39
Supra 21.
40
Supra 22.
41
Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80 (1942)
42
Maneka Gandhi v. Union of India A.I.R. 1978 S.C. 597 (India).

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axiomatic that citizens have a right to know about the affairs of the Government which
having been elected by them, seeks to formulate sound policies of governance aimed at
their welfare.43 To ensure the continued participation of the people in the democratic
process, they are to be kept informed of the vital decisions taken by the Government and
the basis thereof.44Not being provided for reasons definitely violates the said
Fundamental Right. It is the duty for the government to provide for proper justifications
for the actions that is takes.

It is submitted before the Hon’ble court, that the state legislature is aware of the
Fundamental Rights that the citizens of the country have. But, as explained above, the
section 63(3) of Humanitarian Assistance Fund Tax Act, 2020. the section might seem
to violate the Right to Information under section 19(1)(a) of the Indian Constitution in
plain reading, But, when read with Section 61 and with Section 63(1), it can be seen, that
the state is already providing for the reasons required through the assessments that are
being made by the officer.

It is therefore most humbly contended, that the said section of the of Humanitarian
Assistance Fund Tax Act, 2020 does not violate the Right to Information as the reasons,
that are required to be given to the traders are already being provided for through the
assessments that are being made.

43
Jain M.P., Jain S. N., PRINCIPLES OF ADMINISTRATIVE LAW 236 (2011).
44
Noronha, Fredrick, ACCESS TO KNOWLEDGE: A GUIDE FOR EVERYONE 453 (2010).

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PRAYER

Wherefore in the light of the facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Respondent humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:

1. The Petitioner is not entitled for damages so claimed

2. The petition should be dismissed.

Or pass any other order that the court may deem fit in the light of equality, justice
and good conscience and for this Act of kindness of Your Lordships the Respondent
shall duty bound pray.

Sd/- _________________________

Counsels for the Respondent

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