The Department of Laws, Panjab University, Chandigarh

Memorial Moot Court, 2021

Before

THE SUPREME COURT OF INDUS

Robert ……………………………………………………………Petitioner 1

Ozan………………………………………………………………Petitioner 2

Civil Rights Society (CRS).………………………………………Petitioner 3

Vs

State of Indus ……….…………………………………………..Respondent

Memorandum for the respondent

Memorandum for the respondent
1
 Table of Contents

List of Abbreviations………………………………………………….3

Index of Authorities… ………………………………………………..4

I. Case laws……………………………….....................4

II. Legislations…………………………………………..5

III. Journals……………………………………………….5

IV. Websites………………………………………………5

Statement of Jurisdiction……...………………………………………6

Facts…………………………………………………………….....7, 10

Issues………………………………………………………………...11

Summary of Arguments……………………………………………..12

Arguments Advanced…………………………………………….13-20

Prayer………………………………………………………………...21

Memorandum for the respondent

2
 List of Abbreviations

Abbreviation expansion

AIR All India Reporter

art. article

cl. clause

ed. edition

SCC Supreme Court Cases

sec. section

v. versus

Ltd. limited

Ors. others

SC Supreme Court

IPC Indus penal code

IPC Indian penal code

¶ paragraph

HC high court

u/art under article

vol. Volume

r/w read with

Memorandum for the respondent

3
 Index of Authorities

I. Case Laws

S. No. Case title Citation P. No.

1. Sushanta Kumar Chand v. Speaker, Orissa Legislative AIR 1973 Orissa 111. 16
Assembly
2. A.M. Paulraj v. The Speaker, Tamil Nadu AIR 1986 Mad. 248 16

3. M.S.M. Sharma, Vs. Shri Krishna Sinha AIR. 1959, S.C. 395 16

4. Homi D. Mistry Vs. Nafisul Hassan, I.L.R. 1957, Bom. 218 16

5. Ram Gopal Gupta November 22, 1966, 18

Rajya Sabha.
6. Raja Ram Pal v Hon’ble Speaker, Lok Sabha and Others (2007) 3 SCC184 18,19

7. Research Foundation for Science (18) v. Union of India (2005) 13 SCC 186 20

8. T.N Godavarman Thirumulpad v. Union of India, 2012 (2) RCR (Civil) 20

652
9. Court On Its Own Motion Petitioner v. State of Punjab & P&H High Court 1, 20

Others Apr, 2013

Memorandum for the respondent

4
 II. Legislations

S. No. Title of legislation PP

1. The Constitution of India , 1950 Passim

2. The Punjab Prevention of Defacement of Property Act, 1997 Passim

Punjab Act No. 7 of 1998

3. The prevention of corruption Act, 1988 Passim

4. The Representation of the People Act, 1951 Passim

III. Journals

S. No. Title of Journal pp

1. All India Reporter (AIR) passim

2. Supreme Court Cases (SCC) passim

IV. Websites

S. No. Website link PP

1. www.scc.online passim

2. www.manupatra.com passim

3. www.judis.nic.in passim

4. www.Indian kanoon.org passim

5. www.legalserviceindia.com passim

6. www.thelawdictionary.org passim

Memorandum for the respondent

5
 Statement of jurisdiction

A special leave petition u/art 136 of the constitution of Indus 1950 and
Two writ petitions u/art 32 of the constitution of Indus 1950

The three petitions have been clubbed together and the Supreme Court has admitted the petitions
as maintainable.

The memorandum sets forth the facts and the laws and the corresponding arguments on which
the claims are based in the instant case, the appellants confirm they shall accept any judgment
of this honourable court will be final and binding upon itself and shall execute it in it’s entirety
and in good faith.

Memorandum for the respondent

6
 Statement of facts

For the sake of brevity, the material facts are placed herewith in the chronological order.

1. Mr. Robert is a veteran legislator, who has the distinction of having been elected
consecutively 6th times to the parliament of Indus. He had the distinction of serving
as Prime Minister of the previous government and currently as Leader of Opposition
in the Upper House of the Parliament.

2. The new Govt. in Indus decided to investigate the expenses claimed by Mr.
Robert as Prime Minister (2015-2020) with respect to reimbursement claimed
on account of expenses incurred by family members on traveling and IT
services. The civil society, various NGOs, and other organizations seeking
transparency and accountability in the expenditure of public money sought a
judicial inquiry into the scandal.

3. The system for payment of members of Parliament’s allowances and expenses,

as it existed at the relevant time, was created by the joint resolution of both the
houses of parliament and overseen by the Public Accounts Committee. The
individual members used to fill the claim forms and the finance office of the
respective Houses used to consider the same and make payments in relation to
claims. The claim forms as submitted by the members contained a declaration,
signed by the Member, confirming that the costs were exclusively incurred in
course of the purpose of performing duties as a Member of the Parliament.

4. Mr. Robert’s party claimed it was Mr. Ryan – who headed the Public Accounts
Committee and his committee approved all the bills, expenditure, and
appropriation-related issues of the Parliament of the year 2019.. Moreover, the
audit has been done by the Comptroller and Auditor General of Indus and the
report has been duly tabled, presented, and passed in terms of Rules of the
respective House for the financial year of 2019-2020.
Memorandum for the respondent
7
5. Since Mr. Robert is a member of the Upper House in 2021, the entire issue was
referred to a sub-committee composed of 5 distinguished members of the Upper
House and requested them to submit directly to the Chairman of Upper House.
Surprisingly, the sub-committee in its report indicted Mr. Robert for financial
irregularity and recommended FIR to be registered in the present case. The
chairman of the Upper House accepted the recommendation and ordered an FIR
to be registered at the Police Station at Parliament Street, Indus.

6. Mr. Robert immediately challenged the decision of the Chairman of the Upper
House of the Parliament by way of a Writ Petition under Article 32 violative of
his fundamental rights and other constitutional rights which he had as a member
of parliament. He sought to claim immunity from investigation and quashing of
FIR in the present case on strength of parliamentary privileges which are
available under the constitutional scheme.

7. The Supreme Court had issued the notice in the writ petition filed by Mr. Robert
and ordered no coercive action against Mr. Robert.

8. Mr. Ozan is another distinguished member of the Parliament in Lower House

who belonged to the same political party to which Mr. Robert belongs.he
challenged the ruling party and establishment to order an FIR against him for any
act or consequential act of his inside the Parliament. As a member of the lower
house, he prepared a speech titled “Give Me Freedom”.

9. Mr. Ozan during his speech criticized the action and decision of the Chairman of
the Upper House of the Parliament, he sought the reclamation of parliamentary
sovereignty and freedom to its members to raise their voice and conduct
themselves without fear and favor. He highlighted the importance of
parliamentary privileges, institutional autonomy & independence essential for
constitutional democracy. The speech was such that two other first-time
parliamentarians of the Lower House (one from the political party to which Mr.
Robert belongs and another independent candidate) took out the paint spray from
their respective pockets and scribbled “Give me Freedom” towards the end of
Memorandum for the respondent
8
 Mr. Ozan's speech. Thereafter, there was a ruckus on the floor of the House and
the Speaker adjourned the House for the day.

10. The speech of Mr. Ozan got live telecasted – as a response – there were several
graffiti in the name and style of “Give me freedom” that came up at various public
places and public spaces of the capital city. By the next morning, all the important
public places and walls of the government. buildings in the capital city had the
writing “Give me Freedom”. The media and newspapers reported it as the “Give
Me Freedom” moment of the Indus. The Civil society hailed it as reclaiming basic
civil and political liberty.

11. On the recommendation of the Ethics Committee of the House, the Hon’ble
Speaker suspended Mr. Ozan for six weeks to which he replied that he did not
deface the property nor carried out any illegal activities as defined under any law
rather he had all the right to make the speech on the floor of the House. He further
submitted that as his ‘speech got Live’ through the official TV channel of the
Lower House (which is run and managed by the authority of Speaker of this
House) could have been censured if it was so inflammatory in nature. He also
stated that the consequential reaction by the ordinary public on the streets of the
capital city only shows the public anger against squeezing freedoms and over-
regulation of basic rights of the citizenry in disguised mode by the present ruling
Govt.

12. He further sought a review of the decision of the Hon’ble Speaker i.e. ‘suspension
of Six weeks from Assembly’ and disqualification of two other members (who
scribbled inside the Lower House) and requested to revoke the same. The Hon’ble
Speaker disposed of the review petition and retained his previous decision in the
case of Mr. Ozan and the other two parliamentarians.

13. Mr. Ozan along with the other two parliamentarians challenged the decision of
Hon’ble Speaker as violative of Fundamental Rights and constitutional norms in
the modern governance in a Writ Petition before the Supreme Court of Indus and

Memorandum for the respondent

9
 also sought the writ declaring the entire State legislation which made unauthorized
defacement of property as a punishable offense.

14. The State legislation making defacement of property as an offense is pari materia
to the Punjab Prevention of Defacement of Property Act, 1997.An NGO named
Civil Rights Society (CRS) filed a Writ Petition before the High Court of NCT of
Indus challenging the constitutionality of applicable Act which sought to restrict
and regulate the defacement of public property and public places on the ground of
violative of the basic right enshrined under Part III of the Constitution of Indus.
The NGO also contended that it violates the constitutional protection afforded to
the members of the House in form of ‘Legislative Privileges’ beside the safeguards
in part III of the Constitution of Indus.

15. The Hon’ble High Court dismissed the Writ Petition and opined that it is a valid
piece of legislation and FIRs registered against unknown persons for painting the
public space as “Give Me Freedom” does not violate any liberty and constitutional
rights thereto.

16. The NGO i.e. Civil Rights Society (CRS) preferred a Special Leave Petition (SLP)
against the same before the Supreme Court of Indus. The Hon’ble Supreme Court
of Indus has issued notice and clubbed the matter along with the Writ Petition of
Mr. Ozan and Mr. Robert.

Memorandum for the respondent

10
 Issuses Raised

i. Whether the power of the legislature to punish for contempt including the breach of
its privilege is essentially a judicial function or not? If yes, whether it is in tune
with the modern constitutional principle to entrust such powers with respective
legislatures or not?

ii. Whether the action of Speaker/ Chairman of the respective Houses against Mr.
Ozan and Mr. Robert respectively is violative of constitutional rights namely
legislative privileges, freedom of speech or not?

iii. Whether the Punjab Prevention of Defacement of Property Act, 1997 is

constitutional or not? Whether the registration of FIRs against unknown and
members of Parliament under the Act is legal or not?

Memorandum for the respondent

11
 Summary of Arguments

i. Whether the power of the legislature to punish for contempt including the breach of
its privilege is essentially a judicial function or not? If yes, whether it is in tune with
the modern constitutional principle to entrust such powers with respective
legislatures or not?

The counsel on behalf of the state (herein respondent ) most humbly submits before
this honourable court that the power of the legislature to punish for contempt is
essentially a legislative function since it comes under the penal powers of the house.
These special provisions are granted to the Parliament for its effective functioning
,under article 105 and 194 (3) the house will be considered as the sole and exclusive
judge on matters on breach of privileges an action for the same may be initiated if
anyone is found guilty.

ii. Whether the action of Speaker/ Chairman of the respective Houses against Mr. Ozan
and Mr. Robert respectively is violative of constitutional rights namely legislative
privileges, freedom of speech or not?

It is humbly submitted before the honourable court that there was no violation of any
constitutional rights of MR Robert and MR. Ozan , it was a disciplinary legal action
carried out by the honourable chairperson and the honourable speaker, which was
exercised very much within their legal framework of the rules of the house as they
were found guilty by the sub- committee & ethics committee.

iii. Whether the Punjab Prevention of Defacement of Property Act, 1997 is

constitutional or not? Whether the registration of FIRs against unknown and
members of Parliament under the Act is legal or not?
It is most humbly submitted before the honourable court ,The Hon’ble High Court
has dismissed the Writ Petition and opined that it is a valid piece of legislation and
FIRs registered against unknown persons for painting the public space as “Give Me
Freedom” does not violate any liberty and constitutional rights thereto.

Memorandum for the respondent

12
 Arguments Advanced

i. The power of the legislature to punish for contempt is essentially a legislative

function since it comes under the penal powers of the house .These special provisions
are granted to the Parliament for its effective functioning ,under article 105 and 194
(3) the house will be considered as the sole and exclusive judge on matters on breach
of privileges, an action for the same may be initiated if anyone is found guilty.

1. Failing to maintain the standards of accountability and disrupting and delaying the
Parliamentary proceedings in one way or the other not only indicates a lack of
accountability but also the lack of fear against the punishment for offences
constituting a breach of privilege or contempt of the Parliament House

2. .Imposition of fines and stricter punishments are therefore to ensure accountability

and smooth proceedings in Parliament.

3. A contempt of the Parliament House can be defined as any act that

a. Causes an obstruction in the conduct of proceedings of the House

b. Causes an obstruction in the performance of functions by any officer or member

of the House.
c. Any other act that directly or indirectly has such an effect.

d. Proceedings against contempt are very important because the nation cannot
function properly if the Parliament or its members/officers are unable to perform
their duties in an efficient manner.

4. When such a breach of privilege occurs, it is called contempt of the Parliament

House and the person who is charged with the contempt of the Parliament House
can be punished with imprisonment or fine or can be given a warning against
future contempt.

Memorandum for the respondent

13
5. Article 105 and 194 expressly mention in the constitution rule making power and
internal autonomy , which is required to work effectively without any interference
from outside and the right to maintain their own internal issues to deal among
themselves.

Memorandum for the respondent

14
 Case Laws

1) In Harendra Nath Barua v. Dev Kanta Barua & Others (1958),

The High Court of Assam held that only the concerned House can issue punishment
regarding breach of privilege or contempt of that House or its members. This power was called the
‘keystone of parliamentary privilege.’

2) In Sushanta Kumar Chand v. Speaker, Orissa Legislative Assembly (1973),

The Orissa High Court held that the House can impose a punishment of imprisonment for
contempt or breach of privilege.

3) In A.M. Paulraj vs. The Speaker, Tamil Nadu (1985) ,

The editor of a Tamil magazine, had published several comments criticising the members
of the State Legislative Assembly. The Privileges Committee passed an order for simple
imprisonment against the offender for one week. This order was challenged by the offender on
the ground of violation of Article 21 of the Constitution. The Madras High Court, while affirming
the decision of the Privileges Committee, held that the offender cannot claim a violation of
Article 21 because the punishment had been issued in accordance with the procedure established
by law.

Kinds of Punishment that can be imposed by the Houseṣ:

Simple imprisonment for the duration of the session of the House.

Imposition of fine.

Initiation of legal proceedings for prosecution of the offenders..

4) M.S.M. Sharma, Vs. Shri Krishna Sinha, AIR. 1959, S.C. 395;

Memorandum for the respondent

15
5) Homi D. Mistry Vs. Nafisul Hassan, I.L.R. 1957, Bombay 218.

Members, irrespective of whether the offence is committed within the House or beyond its
walls. The power to punish is the most potent weapon in the hands of a House of legislature
which gives reality to privileges of Parliament, emphasises its sovereign character and vindicates
its own authority and dignity. Therefore, it has aptly been described as the key-stone of
Parliamentary privilege.

Memorandum for the respondent

16
 (ii)

1. In case of Mr. Robert he himself referred the entire issue to a sub-committee composed of 5
distinguished members of the Upper House and requested them to submit directly to the
Chairman of Upper House, which indicted Mr. Robert for financial irregularity and
recommended FIR to be registered in the present case.

2. Since there were irregularities found , The honourable chairman of the Upper House on the
recommendation of the 5 member committee ordered an FIR to be registered at the Police
Station at Parliament Street, Indus. It was all done in a constitutional manner and did not
infringe any rights of Mr.Robert
3. Incase of Mr. Ozan he has been found guilty by the ethics committee of inputting motives
to members via his speech ,
4. Mr.ozan is not a new comer but a distinctive member of the house who is a public figure
and has a big influence on his followers and the audiences , he knew what he was bringing
to the table of the parliament would bring an outraged reaction
5. The other two parliamentarians now disqualified also came prepared with the paint spray

,with the clear intenrion of causing disruption in the house

6. Mr. Ozan was not interrupted or censored from making his speech in the house , no
freedom of speech right was violated here
7. Hence a disciplinary legal action was required to be carried out by the honourable
chairperson and the honourable speaker , since all the parties MR. Robert and MR. Ozan
with the other two Parliamentarians were all found guilty by the sub- committee & the
ethics committee ,,the action was excerised very much within the legal framework of the
rules of the house and carried out in a constitutional manner.

Memorandum for the respondent

17
 Case laws :

1) In Ram Gopal Gupta ,November 22, 1966 ,Rajya Sabha.

The Committee of Privileges observed that there was an attempt to input motives in the
minds of the members of the Parliament through a letter issued to that effect. Due to the points
raised in this letter, multiple issues and questions were raised in Parliament. In light of the same,
the Committee of Privileges held that the actions of Mr. Ram Gopal constituted a breach of
privilege and therefore would amount to a contempt of the Parliament House.

2) Raja Ram Pal v Hon’ble Speaker, Lok Sabha and Others, (2007) 3 SCC 184
This Court took note of the history of the parliamentary privileges, scheme and text of the
Constitution and opined that the power of expulsion is part of the privileges and immunities of
the Parliament. It is relevant to notice that Under Article 105(3), “the powers, privileges and
immunities of each house of Parliament” may be “defined by Parliament by law”. This Court
noticed and proceeded on the assumption that no such law existed. Yet it was held by this Court
that such power was part of the privileges of the Legislature.

It therefore follows clearly and a fortiori that at least in the context of expulsion of a
member of the LEGISLATURE, by a decision of that House, no statutory provision is required
for stipulating the grounds on which a member could be expelled or the procedure which is
required to be followed. Though Article 105 and 194 authorises the LEGISLATURE to define
the “powers and privileges and immunities”, the non-exercise of that power to legislate, does not
detract the power of the LEGISLATURE to expel a member on the ground that a member
resorted to some activity which does not meet the approval of the House. A decision to expel a
member would certainly have the same effect as disqualifying a member on the grounds
specified Under Articles 102 and 191.

This Court in Raja Ram Pal case highlighted the difference between “expulsions” and
“disqualification”. It may not answer the description of the expression 43 disqualified as defined
under the RP Act of 1951 or the grounds mentioned Under Article 102 and 191. The

Memorandum for the respondent

18
disqualification brought about by expulsion is limited, of course, to the tenure of the member and
does not disqualify him from seeking to become a member again by contesting an election in
accordance with law.

44. The next question to be examined is whether it is permissible for the Respondents to make
subordinate legislation stipulating that UNDUE ACCRETION OF ASSETS would render a
LEGISLATOR disqualified within the meaning of the expression Under Section 7(b) of the RP
Act of 1951 and to establish a body to undertake the regular monitoring of financial affairs of the
LEGISLATORS.

45. If a temporary disqualification, such as the one discussed above, could be imposed
on a LEGISLATOR even in the absence of any legislative prescription, in the light of the
Scheme and tenor of Articles 102(1)(e) and 191(1)(e) read with Section 169 of the RP Act of
1951, the Government of India would undoubtedly be competent to make such a stipulation
by making appropriate Rules declaring that UNDUE ACCRETION OF ASSETS would
render a LEGISLATOR “disqualified”.

Further, it would be equally competent for the Government of India to establish a

permanent mechanism for monitoring the financial affairs of the LEGISLATORS and their
ASSOCIATES for periodically ascertaining the relevant facts. Because the establishment of
such a permanent mechanism would be a necessary incident of the authority to declare a
LEGISLATOR “disqualified”.
(iii)

1) The Hon’ble High Court has already dismissed the above Petition and opined that it is a
valid piece of legislation and FIRs registered against unknown persons for painting the
public space as “Give Me Freedom” does not violate any liberty and constitutional rights
thereto.

2) Defacement of walls/information boards by affixing posters/wall painting (advertisement)

Memorandum for the respondent

19
 Under Section 399(1) of the Punjab Municipal Corporation Act, 1976 & the Punjab Prevention
of Defacement of Property Act, 1997. is punishable and can file cases against the violators.

Case Laws

1) Court On Its Own Motion Petitioner v. State Of Punjab And Others Punjab &
Haryana high court Apr 1, 2013

This petition is placed as ‘Public Interest Litigation’ after suo motu notice taken by a
learned Single Judge about the pathetic sanitary condition, defacement and destruction of public
property by the residents of Chandigarh and other places in the State of Punjab and Haryana.

The court opined in this matter if the residents of the city do not realize their duty, certain
strict measures are required to be taken to make them understand. Similar is the position at
Panchkula and Mohali.

2) In research Foundation for Science (18) v. Union of India, (2005) 13 SCC 186,

3) T.N Godavarman Thirumalpad v. Union of India 2007 (12) Scale 616

4) T.N Godavarman Thirumulpad v. Union of India, 2012 (2) RCR (Civil) 652,

Hon'ble Supreme Court has already recognized in the above cases , the principle of “let
polluters pay”.

Memorandum for the respondent

20
 Prayer

In light of the facts stated, arguments advanced and authorities cited, the Respondent, humbly
prays before the Honorable Court, to be graciously pleased to:

1. Quash the writs filed by the petitioners in the Hon’ble court of law since there is no violation
of the fundamental rights & Maintain the status quo of the impugned act since there is no
violation of the rights as alleged by the petitioners and pass any other order, which the court
may deem fit in light of justice equity and good conscience.

All of which is most humbly prayed,

Counsel for the Respondent .

Memorandum for the respondent

21