Petitioner A9 51 (Satyam)

9TH ASCENT MOOT COURT COMPETITION, 2020 TEAM CODE A9-51
TEAM CODE A9-51
9TH ASCENT MOOT COURT COMPETITION, 2020
BEFORE THE HON’BLE SUPREME COURT OF INDIA
IN THE MATTER OF
W.P. No. ____/2020
UMAEWAMO SHINDERU ...PETITIONER
VERSUS
LEGISLATIVE ASSEMBLY OF SUMIMASEN ...RESPONDENT
With
Civil Appeal No. ____/2020
UMAEWAMO SHINDERU ...PETITIONER
VERSUS
STATE OF SUMIMASEN ...RESPONDENT
AS SUBMITTED TO THE HON’BLE CHIEF JUSTICE & HIS OTHER COMPANION JUDGES OF
THE HON’BLE SUPREME COURT OF INDIA
- WRITTEN SUBMISSION ON BEHALF OF PEITITONER -
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TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................................VI
LIST OF ABBREVIATION.............................................................................................. XVI
STATEMENT OF JURISDICTION ................................................................................XVIII
STATEMENT OF FACTS ............................................................................................... XIX
STATEMENT OF ISSUES ............................................................................................... XXI
SUMMARY OF ARGUMENTS ...................................................................................... XXII
ARGUMENTS ADVANCED ................................................................................................. 1
ISSUE 1: THAT, IN VIEW OF THE PROVISIONS OF PART III OF THE CONSTITUTION OF

INDIA, THE LEGISLATIVE ASSEMBLY OF SUMIMASEN DOESN’T HAVE THE POWER TO
IMPRISON A PERSON BY AN UNSPEAKING ORDER. ....................................................... 1
1.1 THAT THE LEGISLATIVE ASSEMBLY OF SUMIMASEN DOES NOT HAVE THE
POWER TO IMPRISON A PERSON. ................................................................................. 1
1.1.1 THAT THE PENAL POWER OF HOUSE OF COMMONS TO IMPRISON A PERSON

DOES NOT STAND THE TEST OF TIME ....................................................................... 2
1.1.1.1 THAT POWER WITH HOUSE OF COMMONS HAD CEASED IMMEDIATELY

BEFORE THE COMMENCEMENT OF CONSTITUTION. ............................................. 2
1.1.1.2 THAT THE PENAL POWER OF HOUSES OR ASSEMBLIES HAS BEEN
REVOKED ACROSS THE WORLD ........................................................................... 3
1.1.2 THAT THE HOUSE OF COMMONS HAD THE POWER TO IMPRISON OWING TO
ITS HISTORY. .......................................................................................................... 3
1.1.2.1 THAT THE HOUSE OF COMMONS WAS SOVEREIGN AND A SUPERIOR
COURT………… ................................................................................................ 4
1.1.2.2 THAT THE HOUSE OF COMMONS GOT THE POWER TO IMPRISON DUE TO
CONSTANT WRANGLE BETWEEN KING AND THE HOUSE. ..................................... 4
1.1.3 THAT THE LEGISLATIVE ASSEMBLY CANNOT CLAIM THE POWER TO
IMPRISON AS IT HAS NOT FORMED ANY LAW UNDER ARTICLE 194(3). .................... 5
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1.1.3.1 THAT IT IS CONTRARY TO INTENTION OF THE CONSTITUENT ASSEMBLY

……………………………………………………………………….5
1.1.3.2 THAT IT VIOLATES THE PRINCIPLE OF NULLAPOENA SINE LEGE ........... 5
1.1.4 THAT THE POWER TO IMPRISON A PERSON, IF EXERCISED BY A
LEGISLATIVE ASSEMBLY, VIOLATES THE DOCTRINE OF SEPARATION OF
FUNCTIONS. ........................................................................................................... 6
1.1.4.1 THAT THE POWER TO IMPRISON A PERSON IS NECESSARILY A JUDICIAL

FUNCTION.. ......................................................................................................... 6
1.1.4.2 THAT THE ASSEMBLY CANNOT PERFORM ANY JUDICIAL FUNCTION ..... 7
LEGISLATIVE ASSEMBLY VIOLATES ARTICLE 20(1) OF THE CONSTITUTION. .......... 7
1.1.5.1 THAT DUE TO NON ENACTMENT, IMPRISONMENT OF ANY PERSON
VIOLATES ART
20(1)…………………………………………………………………………...7
1.1.5.2 THAT PENALIZATION WOULD HAVE A RETROSPECTIVE EFFECT ........... 8
LEGISLATIVE ASSEMBLY, VIOLATES ARTICLE 21 OF THE CONSTITUTION. ............. 8
1.1.6.1 THAT PENAL POWERS OF ASSEMBLY VIOLATES THE PRINCIPLE OF
NEMO JUDEX IN CAUSA SUA ................................................................................ 8
1.1.6.2 THAT SUCH POWER VIOLATES THE PRINCIPLE OF FAIRNESS .................. 9
1.2 THAT, EVEN OTHERWISE, IMPRISONMENT OF A PERSON, BY LEGISLATIVE

ASSEMBLY OF SUMIMASEN BY AN UNSPEAKING ORDER VIOLATES ARTICLE 14 OF THE
CONSTITUTION. .......................................................................................................... 9
1.2.1 THAT UNSPEAKING ORDER VIOLATES THE PRINCIPLE OF NON-
ARBITRARINESS ...................................................................................................... 9
1.2.1.1 THAT UNSPEAKING ORDER DENOTES NON-APPLICATION OF MIND ...... 10
1.2.1.2 THAT UNSPEAKING ORDER AMOUNTS TO DISCRIMINATION ................ 10
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1.2.2 THAT UNSPEAKING PENAL ORDER VIOLATES THE PRINCIPLE OF
LEGITIMATE EXPECTATION OF THE PERSON. ........................................................ 11
1.3 THAT IMPRISONMENT OF A PERSON, BY LEGISLATIVE ASSEMBLY OF
SUMIMASEN BY AN UNSPEAKING ORDER ALSO VIOLATES ARTICLE 21 OF THE
CONSTITUTION. ........................................................................................................ 12
1.3.1 THAT UNSPEAKING ORDER VIOLATES THE PRINCIPLE OF FAIR PROCEDURE

………………………………………………………………………...12
1.3.1.1 THAT IT VIOLATES THE DOCTRINE OF FAIRNESS ................................. 13
1.3.1.2 THAT IT CAUSES PREJUDICE TO THE PERSON IMPRISONED .................. 14
1.3.2 THAT AN UNSPEAKING ORDER IS NOT TENABLE IN THE EYES OF LAW .... 14
ISSUE 2: THAT THE PROVISION OF § 63(3) OF THE HUMANITARIAN ASSISTANCE
FUND TAX ACT, 2020 IS IN FLAGRANT VIOLATION OF PART III OF THE
CONSTITUTION OF INDIA AND LIABLE TO BE STRUCK DOWN AS UNCONSTITUTIONAL.
.................................................................................................................................... 15
2.1 THAT THE IMPUGNED PROVISION OF HAFTA ABHOR THE PRINCIPLE OF
EQUALITY ENSHRINED UNDER ARTICLE 14 OF THE CONSTITUTION OF INDIA. .......... 16
2.1.1 THAT THE IMPUGNED PROVISION OF HAFTA ABHORS THE DOCTRINE OF

MANIFESTLY ARBITRARINESS. ............................................................................. 16
2.1.1.1 THAT NOT FURNISHING REASON UNDER IMPUGNED POWER RESULTED
IN ABSOLUTE DISCRETIONARY POWER TO HAFTA COLLECTORS ...................... 17
2.1.2 THAT THE IMPUGNED PROVISION OF HAFTA VIOLATE THE PRINCIPAL OF

NATURAL JUSTICE................................................................................................ 18
2.1.2.1 THAT REASONED ORDER IS ESSENTIAL AND IS ONE OF THE PRINCIPLES

OF NATURAL JUSTICE………………………………………………………….18
2.2 THAT THE IMPUGNED PROVISION OF HAFTA VIOLATES THE RIGHT TO
FREEDOM OF TRADE OR PROFESSION ENSHRINED UNDER ARTICLE 19(1)(G) OF THE
CONSTITUTION OF INDIA .......................................................................................... 19
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2.2.1 THAT NOT PROVIDING REASON UNDER §63(3) OF HAFTA IMPOSE AN
UNREASONABLE RESTRICTION ON FREEDOM OF TRADE, PROFESSION .................... 20
2.2.1.1 THAT NOT ASSIGNING THE REASON FOR ASSESSMENT UNDER § 63 OF
HAFTA DOES NOT COMPLY WITH THE DOCTRINE OF PROPORTIONALITY. ....... 20
2.3 THAT THE IMPUGNED PROVISION OF HAFTA ABHOR RIGHT TO
JUSTICE ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION.............................. 21
2.3.1 THAT THE IMPUGNED PROVISION OF HAFTA VIOLATE RIGHT TO ACCESS

JUSTICE……………………………………………………………………...…..21
2.3.1.1 THAT IMPUGNED PROVISION VIOLATES RIGHT TO APPEAL OF
AGGRIEVED
TRADERS……………………………………………………………………...22
2.3.2 THAT THE PROCEDURE ESTABLISHED IN THE IMPUGNED PROVISION OF
HAFTA IS ARBITRARY IN NATURE. ...................................................................... 23
PRAYER .......................................................................................................................... 24
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INDEX OF AUTHORITIES
SUPREME COURT CASES
1 A. K. Gopalan v. State of Madras, (1950) SCR 88 ............................................. 19,22
2 A. K. Kripak v. Union of India, AIR 1970 SC 150 ................................................... 8
3 A. R. Antulay v. R S Nayak, AIR 1988 SC 1531 ........................................... 8,12,14
4 Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 ................................... 15
5 Amarinder Singh v. Punjab Vidhan Sabha, (2010) 6 SCC 113............................ 2,13
6 Anita Khushwa v. Pushap Sudan, AIR 2016 SC 3506 ............................................ 20
7 Arjun Chaubey v. Union of India, AIR 1984 SC 1356 ............................................. 8
8 Ashok Paper Mills Kamgar Union v. Union of India, (2000) 10 SCC 28............... 10
9 B A Linda Reddy v. Karnataka State Transport Authority, (2015) 4 SCC 515 ........ 9
10 Bharati Reddy v. State of Karnataka, (2018) 12 SCC 61. ....................................... 15
11 Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006)
3 SCC 434................................................................................................................ 11
12 Brij Mohan Lal v. Union of India, (2012) 6 SCC 502............................................. 20
13 CCT v. Shukla & Bros., (2010) 4 SCC 785 ...................................................... 13, 17
14 Chanchal Goyal (Dr.) v. State of Rajasthan, (2003) 3 SCC 485 ............................. 11
15 Chintamon v. The State of Madhya Pradesh, (1950) SCR 759 ............................... 19
16 Chowgule & Co. v. Union of India, AIR 1971 SC 2021. ........................................ 21
17 Dilip S. Dahanukar v. Kotak Mahindra Co Ltd, (2007) 6 SCC 528. ........................ 8
18 Dwarka Prasad v. State of U.P, (1954) SCR 803 .................................................... 19
19 E.P. Royappa v. State of Tamil Naidu, (1974) 4 SCC 3 ......................................... 16
20 Engineering Mazdoor Sabha v. Hind Cycles, AIR 1963 SC 874 ............................ 21
21 Food Corp. of India v. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 ...... 11
22 Govindrao v. State of M.P A.I.R., 1965 S.C. 1222 ................................................. 21
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23 Govt. Branch Press v. D B Belliappa, AIR 1979 SC 429........................................ 10
24 Gunapathi Keshavram Reddy v. Nafisul Hassan and State of U.P., AIR 1954 SC
636 ............................................................................................................................. 6
25 Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368. .................................. 9,17
26 Hussainara Khatton v. State of Bihar, (1980) 1 SCC 81 ......................................... 20
27 Imtiyaz Ahmed v. State of U.P, (2012) 2 SCC 688................................................. 20
28 Indira Nehru Gandhi v. Raj Narain & Ors. 1975 (Supp) SCC 1. ........................... 5,6
29 Indra Sawhney v. Union of India, AIR 1993 SC 477 .............................................. 15
30 Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537....... 14
31 Jagjit Singh v. State of Haryana & Ors., AIR 2007 SC 590...................................... 9
32 Jitendra Kumar v. State of Hayana, (2008) 2 SCC 161 ........................................... 11
33 Justice K.S. Puttaswamy and Ors. v. UOI and Ors, (2017) 10 SCC 1 .................... 22
34 K.R. Lakshmanan (Dr.) v. State of T.N., (1996) 2 SCC 226 .................................. 15
35 Kalpana Mehta & Ors. v. Union of India & Ors., (2017) 7 SCC 302 .................... 3,6
36 Karnail Singh v. State of Punjab 2012 (2) SCT 325 ............................................... 10
37 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 ................................... 15
38 Kishan Lal v. Union of India, (1998) 97 Taxman 556 (SC) .................................... 17
39 Knight v. Indian Head School Division No. 19, (1990) 1 SCR 653 ....................... 10
40 Krishna Swami v. Union of India, (1992) 4 SCC 605 ....................................... 10, 12
41 LIC v. Consumer Education and Research Centre, (1995) 5 SCC 482 ................... 10
42 M. Paul Anthony v. Bihar Gold Mines Ltd, AIR 1999 SC 1416 ............................ 22
43 M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 666 ............................... 15
44 M.S.M. Sharma v. S.K. Sinha, AIR 1959 SC 395 ..................................................... 5
45 Mahabir Prasad v. State of U.P, AIR 1970 SC1302 ................................................ 21
46 Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425. ................................................... 8
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47 Maneka Gandhi v. Union of India, AIR 1978 SC at 1269. ........................... 18,20,22
48 MRF Ltd. v. CST, (2006) 8 SCC 702...................................................................... 11
49 N. Kannadasan v Ajoy Khose, (2009) 7 SCC 1 ...................................................... 12
50 N. Kannadasan v AjoyKhose, (2009) 7 SCC 1 ....................................................... 12
51 Navtej Singh Johar v. Union of India (2018) 1 SCC 791 ........................................ 16
52 Neelima Misra v. Harinder Kaur Paintal and Ors., (1990) 2 SCC 746. .................... 9
53 Om Kumar v. Union of India, AIR 2000 SC 3689 .................................................. 19
54 Rai Saheb R.J. Kapur v. State of Punjab (1955) 2 SCR 225 ..................................... 5
55 Raj Kishore Jha v. State of Bihar & Ors., AIR 2003 SC 4664 ................................ 14
56 Raja Ram Pal v. The Hon‟ble Speaker, Lok Sabha & Ors., (2007) 3 SCC 184 8,9,13
57 Rudul Shah v. State of Bihar, AIR 1983 SC 1086 .................................................. 14
58 S. N. Mukherjee v. Union of India AIR 1990 SC 1984. ............................ 9,12,13,17
59 Sardar Ali Singh (dead) v. State of Punjab, 2016 (2) SCT 151. ............................. 10
60 Shayara Bano v. Union of India, (2017) 9 SCC 1 ................................................... 17
61 Shri Swamiji of Shri Admar Mutt etc. etc. vs. The Commissioner, Hindu Religious
and Charitable Endowments Dept. and Ors AIR 1980 SC 1 ................................... 17
62 Shrikishan Singh v. State of Rajasthan, AIR 1955 SC 795 ..................................... 15
63 Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212 (India); ....................... 10,11
64 Siemens Engineering and Manufacturing Co. of India Ltd. vs. The Union of India,
AIR 1976 SC 1785 .................................................................................................. 17
65 Special Reference No. 1 of 1964, AIR 1966 SC 745 ............................. 1,3,6,7,13,14
66 State of Andhra Pradesh v. Nalla Raja Reddy, AIR 1967 SC 1458 ........................ 10
67 State of Gujarat v. Krishna Cinema AIR 1971 SC 1650 ......................................... 21
68 State of Punjab v. Bakhtawar Singh, AIR 1972 SC 2083. ...................................... 21
69 State of U.P. v. Battan and Ors., (2001) 10 SCC 607.............................................. 14
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70 State Of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86. ............................... 8
71 State of W.B. v. Atul Krishna Shaw, 1991 Supp (1) SCC 414 ............................... 20
72 Supreme Court Advocates-on-record Association and ors. v. Union of India (1993)

4 SCC 441................................................................................................................ 16
73 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 .......................... 15
74 Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and

Others, (2009) 2 SCC 784. ...................................................................................... 20
75 Travancore Rayons Ltd. v. Union of India, AIR 1971 SC 862 ............................... 10
76 U.P. Avas Evam Vikas Parishad & Anr v. Friends Coop. Housing Soceity Ltd. &
Anr.,AIR 1996 SC 114 ............................................................................................ 22
77 Union of India v. Hindustan Development Corpn., (1993) 3 SCC 449 .................. 11
78 Union of India v. Tulsiram Patel, AIR 1985 SC 1416 ............................................ 10
79 Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732
................................................................................................................................. 12
80 Vishnu Dev Sharma v. State of Uttar Pradesh & Ors., (2008) 3 SCC 172 ............. 14
81 West Ramnad Electric Distribution Co. Ltd v. State of Madras, AIR 1962 SC 1753
................................................................................................................................... 7
82 Woolcombers of India Ltd. v. Woolcombers Workers Union, AIR 1973 SC 2758

....................................................................................................................... ..9,17,18
HIGH COURT JUDGMENTS
1 Ahmad Ullah v. Union of India, Civil Writ No. 25502 of 2019 (All HC) .............. 13
2 Anumathi Sadhukhan v. A.K. Chatterjee, AIR 1951 Cal. 90 .................................. 19
3 Arunava Ghosh v. The Speaker, West Bengal Legislative Assembly & Ors, W.P.
No. 1125 of 2013 (Cal HC) ..................................................................................... 11
4 Baidya Nath Sarma v. CWT (1983) 11 Taxman 158 (Gau.) ................................... 17
5 Buddhraj v. State of UP, Civil Writ No. 1545 of 2017 (All HC) (India) ................ 14
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6 D. Murugesan v. Hon'Ble Speaker (Thiru Sedapatti R. Muthiah) T. N. Legislative

Assembly, AIR 1995 MAD 260 ............................................................................... 8
7 In Re: Llewelyn Evans, AIR 1926 Bom 55. ............................................................ 21
8 Joseph v. Supdt of Post Offices, AIR 1961 Ker 197 ............................................... 14
9 Karnail Singh v. State of Punjab 2012 (2) SCT 325. .............................................. 10
10 Komati Reddy Venkat Reddy & Anr. v. State of Telangana, Law and Legislature
Department, Hyderabad & Ors., 2018 Indlaw HYD 197 ...................................... 6,9
11 M. Elangovan v. Commissioner, Kodaikanal Municipality, AIR 1996 Mad 401 ... 11
12 M/S Swarn Kumar And Company v. State Of Himachal Pradesh And Anr., Arb.
Case No. 55 of 2016 (All HC) ................................................................................... 9
13 Manjit Singh s/o MoolsinghSethi v. Maharashtra Legislative Assembly, 2006 (4)

Mh.L.J. 834 ............................................................................................................... 1
14 Maruti Ltd, Chandigarh v. PAN India Plastic Pvt. Ltd, New Delhi, AIR 1993 P&H
215.. ........................................................................................................................... 8
15 Masarat Alam Bhat v. State of Jammu & Kashmir & Ors., (2010) 23 RCR
(Criminal) 530 ........................................................................................................... 9
16 Nanak Chand Sharma v. State of U.P. &Ors., Civil Writ No. 18164 of 2018 (All
HC)... ....................................................................................................................... 14
17 Pranjit Singh v. State of Punjab & Ors. (2009) 4 RSJ 294 ........................................ 8
18 R. Balakrishnan v. The State Of Madras, 1951 SCC 52( Mad). ............................. 19
19 Sakuni Choudhary & Ors. v. Speaker, Legislative Assembly & Ors., 1992(2) PLJR
406 ................................................................................................... 9,10,11,12,13,14
20 Seema Singh v. Prescribed Authority/Commissioner Workman Compensation U.P.

at Allahabad & Ors., Civil Misc. Writ Petition No. 13893 of 2009 (All HC) ......... 10
21 State v. Padma Kant Malaviya, AIR 1954 All 523 ................................................... 7
22 Thangaraj v. State, 2017 SCC Onine Mad 1062 .......................................... 10,11,14
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23 Vemula Prashanth Reddy & Ors. v. Komati Reddy Venkat Reddy & Ors. 2018
Indlaw HYD 229(India)............................................................................................. 2
FOREIGN JUDGMENTS
1 Alexander Machinery (Dudley) Ltd. v. Crabtree (1974) 1 CR 120. ....................... 13
2 Brass Crosby, 95 E.R. 1005 (1771). .......................................................................... 8
3 Doyle v. Falconer (1865-67) LR 1 PC 328. .............................................................. 6
4 Fenton v. Hampton(1858) 11 Moo P.C. 347 ............................................................. 4
5 Hadjianastassiou vs. Greece, (1993) 16 EHRR 219 ................................................ 13
6 Keilly v. Carson, (1842) 4 Moo P.C. 63 ............................................................... 3,14
7 Kilbourn v. Thompson 103 U. S. 184 (1880) ...................................................... 2,4,6
8 Liyanage v. The Queen (1967) 1 AC 259 ................................................................. 6
9 Pepper v Hart, (1993) AC 595 ................................................................................... 1
10 Queen v. Richards 92 C.L.R. 157 .............................................................................. 6
11 R v. Civil Service Appeal Board (1991) 4 All ER 310 ........................................... 12
12 R v. Parole Board (1992) QB 740 ........................................................................... 12
13 R v. Secretary of State for the Home Dept. (1993) 3 All ER 92. ............................ 12
14 R v. Sussex Justices, ex parte McCarthy, (1924) 1 KB 256 ................................ 8,17
15 Re Haughey (1971) IR 217. ..................................................................................... 11
16 Shaughnessy v. Mezei, 345 U.S. 206 (1953)............................................................. 8
17 Stockdale vs. Hansard, 112 E.R. 1112 ...................................................................... 3
18 Victoria vs. Glass (1869) 3 L.R.P.C. 560. ................................................................. 6
JOURNALS
1 Alexander J. Cella, The Doctrine of Legislative Privilege of Freedom Speech and

Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the
Courts, 2, Suffolk U. L. REV. 1,35 (1968). ............................................................. 4
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2 Bernard Wright, Patterns Of Change – Parliamentary Privilege, PSC-ANU, 10

(2007)......................................................................................................................... 3
3 C S Potts, Power of Legislative Bodies to Punish for Contempt, 74, U. Pa. L. Rev.
691, 692-97 (1926) ................................................................................................. 3,4
4 C.K. Thakker, From Duty to Act Judicially to Duty to Act Fairly 4 SCC (Jour) 1,3
(2003 ........................................................................................................................ 12
5 Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 41
CORNELL L. REV. 1 (2007). ................................................................................. 10
6 Colleen F. Shanahan, Significant Entanglements: A Framework for the Civil

Consequences of Criminal Convictions, 49, ACLR ,1387, 1394 (2012). ................. 9
7 Fiona Donson and Darren O'Donovan, Designing effective parliamentary inquiries:

lessons learned from the Oireachtas banking inquiry, DULJ, 4 (2016). ................ 11
8 Joseph Minattur, Parliamentary Privilege: Divination or Definition?, ILI CDSI, 15

(1973); ........................................................................................................... 2,3,4,5,7
9 Mathilde Cohen, When Judges Have Reasons Not to Give Reasons: A Comparative
Law Approach, 72, Wash. & Lee L. Rev. 483 (2015); ............................................ 10
10 Nirmalendu Bikash Rakshit, Parliamentary Privileges and Fundamental Rights, 39

(13), EPW , 1379, 1381(2004) .................................................................................. 4
11 Ronald Goldfarb,The History of Contempt Power, 1961, WASH. U. L. Q. 1,28

(1961)...................................................................................................................... 2,4
12 Tom R. Tyler, What is Procedural Justice?: Criteria used by Citizens to Assess the
Fairness of Legal Procedures, 22(1), L&SR 103, 128 (1988). ............................... 12
13 V S Chauhan, Reasoned Decision: A principle of Natural Justice, 37, JILI, 92

(1995 ........................................................................................................................ 14
DEBATES
1 X CONSTITUENT ASSEMBLY OF INDIA DEBATES-PROCEEDINGS, 55 ..... 5
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REPORTS
1 Explanatory Memorandum, House Of Representatives Parliamentary Privileges

Bill 1987, 8, (1987) .................................................................................................. 13
2 First Report on PARLIAMENTARY PRIVILEGES, Joint Committee on Parliamentary

Privilege (1999)
https://publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/43ap60.htm ..... 2,13
3 Government Response, Joint Committee on Parliamentary Privilege, 3 (2013 ..... 13
4 Report on CONGRESS‟S CONTEMPT POWER AND THE ENFORCEMENT OF
CONGRESSIONAL SUBPOENAS: LAW, HISTORY, PRACTICE, AND PROCEDURE,

Congressional Research Service, 2 (2017)
https://crsreports.congress.gov/product/pdf/RL/RL34097 ........................................ 3
CONSTITUTIONAL PROVISIONS
1 INDIA CONST. art. 194, cl. 3 ....................................................................................... 2
2 INDIA CONST. art. 21 .......................................................................................... 15, 22
3 INDIA CONST. art.13 ..................................................................................... 15, 18, 21
4 INDIA CONST. art.136. .............................................................................................. 21
5 INDIA CONST. art.14 ................................................................................................. 15
6 INDIA CONST. art.19, cl 1.. .................................................................................. 15,18
7 INDIA CONST. art.19, cl. 6. ....................................................................................... 18
STATUTES
1 Constitution (Forty Fourth Amendment) Act, Bill No. 88 of 1978, § 45 (1978). ..... 3
2 Parliamentary Privilege Act, §22 (2014). .................................................................. 3
3 Parliamentary Privileges Act, Act No. 21 of 1987, § 9 (1987); .............................. 13
BOOKS
1 1 B. SCHWARTS, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES,

124 (1963).................................................................................................................. 3
2 1 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 44 (1753) ................. 6
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3 12 HAMLYN, LECTURES ON THE COMMON LAW OF INDIA, 174(1960 .......................... 5
4 2 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 660 (S S

Subramani, 9th ed. 2016). ............................................................................... 10,11,12
5 2 SUBHASH C. KASHYAP, PARLIAMENTARY PROCEDURE THE LAW, PRIVILEGES,

PRACTICE AND PRECEDENTS, 1555 (2000) ................................................................. 2
6 5 DURGA DAS BASU,COMMENTARY ON THE CONSTITUTION OF INDIA, 25 (S

SSubramani, 9th ed. 2016). .............................................................................. 7,12,14
7 78 HALSBURY, LAWS OF ENGLAND ¶1076-1093 (5th ed. 2010) ................................. 3
8 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 372 (S S

Subramani, 9th ed. 2016). ......................................................................................... 11
9 9 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 26 (S

th
SSubramani, 9 ed. 2016). ............................................................................. 1,2,4,21
10 A.W. BRADLEY, CONSTITUTIONAL & ADMINISTRATIVE LAW 160 (16th ed. 2014) .... 1
11 ASOK CHANDA, FEDERALISM IN INDIA, A STUDY OF UNION, 232 (1965) ................... 4
12 CARL WITTKE, THE HISTORY OF PARLIAMENTARY PRIVILEGE IN ENGLAND, 30

(1970)......................................................................................................................... 4
13 D L KEIR AND F H LAWSON, CASES IN CONSTITUTIONAL LAW, 126 (4th ed. 1954) .. 3
14 DAVID ELDER , HOUSE OF REPRESENTATIVES PRACTICE 780 (7th ed. 2018). ........... 13
15 DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, 386 (2nd ed. 2000). . 8
16 DURGA DAS BASU., INTRODUCTION TO THE CONSTITUTION INDIA 115 ( LEXIS

NEXIS, 22nded. 2007) ........................................................................................... 19,21
17 ELIZABETH GUISSANI, THOMSON, CONSTIUTIONAL AND ADMINISTRATIVE LAW, 310

(1st ed. 2008). ........................................................................................................... 12
18 ERSKINE MAY, PARLIAMENTARY PRACTICE, 196 (24th ed. 2011). ................................ 2
19 ERSKINE MAY, TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF
PARLIAMENT, 90 (W. Mckay Ed., 23rd ed. 2004) ................................................... 3,6
20 KHALID LATIFGAUBA, BATTLES AT THE BAR , 207 (1956). ........................................ 8
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21 LETTER BOOKS, FACTORY RECORDS, 8, 265 (1858) .................................................. 4
22 M N KAUL& S L SHAKDHER, PRACTICE AND PROCEDURE OF PARLIAMENT, 284

(Anoop Mishra, 7th ed. 2016). ............................................................................. 3,5,6
23 M P JAIN & S N JAIN,PRINCIPLES OF ADMINISTRATIVE LAW, 521(7th ed. 2013)

....................................................................................................................... 10,11,14
24 MARK ET ALL, ADMINISTRATIVE LAW TEXT AND MATERIAL, 407 ( 4th ed. 2011). .. 13
25 S.N. JAIN., ADMINISTRATIVE TRIBUNALS IN INDIA 5-8 (1977). ............................... 21
26 STANELY DE SMITH & RODNEY BRAZER,CONSTITUTIONAL AND ADMINISTRATIVE

th
LAW, 551 (Hilaire Barnett, 13 ed. 2019). ................................................................ 2
27 UPD KESARI, LECTURES ON ADMINISTRATIVE LAW 312 (19th ed. 2012). .............. 10
28 V.G. RAMACHANDRAN, THE LAW OF PARLIAMENTARY PRIVILEGE IN INDIA, xix

(1966)......................................................................................................................... 5
29 V.S. RAMA DEVI & B.G. GUJAR, RAJYASABHA AT WORK, 278 (Shumsher K.
Sheriff, 3rd ed. 2017) .................................................................................................. 2
30 WEIZHONG YI, RESEARCH ON PARLIAMENTARY PRIVILEGE CONCURRENTLY DISCUSS

CHINESE NATIONAL PEOPLE‟S CONGRESSIONAL PRIVILEGE, 24 (2009)............... 3,4,7
INTERNET SOURCES
1 Sanya Talwar, SC Refers To Larger Bench UP Govt's Appeal Against Allahabad

HC Order For Removal Of 'Name & Shame' Banners, Hindustan Times (Mar 12,
2020) https://www.hindustantimes.com/india-news/name-and-shame-posters-
supreme-court-refers-issue-to-larger-bench-does-not-stay-allahabad-hc-order/story-
LGEr4nxFAt4vK8XZyWU1bN.html ........................................................................ 5
CONVENTIONS
1 Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6,
Dec 4th, 1950. 213 U.N.T.S 221. ....................................................................... 13, 18
2 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948,

art. 8, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html
[accessed 3 May 2020], ................................................................................................ 20
-MEMORIAL ON BEHALF OF PETITIONER- XV | P a g e

LIST OF ABBREVIATION
Abbreviation Meaning
& And
§ Section
¶ Paragraph
ACLR American Criminal Law Review
AIHC All India High Courts
AIR All India Reporter
All Allahabad
Anr. Another
AP Andhra Pradesh
Art. Article
Cal Calcutta
Chh. Chhattisgarh
CORNELL L. REV Cornell Law Review
Del Delhi
DULJ Dublin University Law Journal
EPW Economic & Political Weekly
GJLDP GNLU Journal of Law, Development and Politics
HAFTA Humanitarian Assistance Fund Tax Act, 2020

Hon‟ble Honorable
JILI Journal of Indian Law Institute
Jour Journal
-MEMORIAL ON BEHALF OF PETITIONER- XVI | P a g e

Kant Karnataka
L&SR Law & Society Review
LM-TBO Law Mantra Think Beyond Others
Ltd. Limited
Mad Madras
Ori Orissa
Ors. Others
P&H Punjab and Haryana
Pat Patna
PLJR Patna Law Journal Reports
Parliamentary Studies Centre.-Australian National

PSC-ANU
University.
Raj Rajasthan
RCR Recent Criminal Reports
SCC Supreme Court Cases
SCR Supreme Court Weekly Reporter
Suffolk U. L. REV Sufflock University Law Review
TJPI The Journal of Parliamentary Information
U. Pa. L. Rev University of Pennsylvania Law Review
v. Versus
Wash. & Lee L. Rev. Washington and Lee Law Review
WASH. U. L. Q Washington University Law Quarterly
-MEMORIAL ON BEHALF OF PETITIONER- XVII | P a g e

STATEMENT OF JURISDICTION
In accordance with Article 32 of the Constitution of India read with Order XXXVIII of
Supreme Court Rules, 2013 and Article 136 of the Constitution of India, the
PETITIONER has approached the Hon‟ble Supreme Court of India.
- Article 32 of the Constitution of India -
“32. Right to Constitutional Remedies-
(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 clauses (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.”
- Article 136 of the Constitution of India -
“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.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.”
All of which is most respectfully submitted
-MEMORIAL ON BEHALF OF PETITIONER- XVIII | P a g e

STATEMENT OF FACTS
ENACTMENT OF HAFTA
On 15th January, 2020, the State of Sumimasen enacted the Humanitarian Assistance
Fund Tax Act (hereinafter referred as HAFTA) to levy a tax on sale of specified goods
within the states. The purpose of the tax was to create a social welfare Fund for the
residents of the state in need of medical assistance. The HAFTA was passed with much
fanfate as a major reform in healthcare in the State.
DISCRETIONARY POWER TO HAFTA COLLECTORS
In case of default assessment, the Act empowered officers of the rank of Assistant
HAFTA Collectors and above to collect the tax from traders who sell such specified
goods, by merely visiting the premises of their shops, perusing the books of accounts
made available to them, and passing an assessment order.
HAFTA AFFECTING THE PROFITS OF THE TRADERS
HAFTA began affecting not merely their profits, but also their day to-day business, as
HAFTA Collectors used to turn up at random hours at their shops, and pass assessment
orders, demanding immediate payment of the tax and trading community was
thoroughly unimpressed by the HAFTA. Various bands and protest were staged by the
trading community at large against HAFTA.
PETITION BEFORE HIGH COURT
Mr. Umaewamo Shinderu, a significant trader in the State of Sumimasen, challenged

before the High Court of Sumimasen the provisions of the HAFTA, specifically section
63, contending that the legislative prescription of not having to give reasons was in
violation of his fundamental rights. He contended that the Act must be read down to
make giving reasons mandatory. On 12th February, 2020, the High Court dismissed
Mr. Shinderu‟s Writ Petition holding 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.
-MEMORIAL ON BEHALF OF PETITIONER- XIX | P a g e

PUBLIC CAMPAIGN AGAINST HAFTA
Mr. Shinderu, apart from challenging the Act in the High Court of Sumimasen, had
begun a public campaign against it and had claimed that by passing such act, the Chief
Minister and his ministers had attempted to destroy the very fabric of democracy.
RESOLUTION BY THE LEGISLATIVE ASSEMBLY OF SUMIMASEN
After an exceptionally incendiary speech made by Mr. Shinderu, the Assembly had
passed a resolution, resolving to reprimand Mr. Shinderu for making speeches against
the Assembly and had issued a summon to such effect demanding his presence in the
Assembly. Upon being served, Mr. Shinderu refused to appear before the Assembly
and issued an open letter to the Speaker, to such effect, using intemperate language.
IMPUGNED RESOLUTION BY THE ASSEMBLY
Despite his refusal to appear, Mr. Shinderu appeared before the Assembly on 15th
February, 2020. When he was brought to floor, he refused to acknowledge the Speaker
in the Chair. After he was administered with the reprimand, the letter issued by him to
the Speaker was read and he defiantly admitted the fact that he had written the letter,
and also dared the House to take any action. The House resolved to punish Mr.
Shinderu and directed that he be imprisoned for a period of 10 days for its contempt,
and a warrant to such effect was also issued.
PETITIONS BEFORE THE HON’BLE SUPREME COURT
Aggrieved by the decision of the Assembly to imprison him, Mr. Shinderu has
challenged the same by way of a Writ Petition under Article 32 of the Constitution of
India. Also, aggrieved by the dismissal of his Writ Petition before the High Court, he
has preferred a Special Leave Petition under Article 136 of the Constitution of India,
before the Hon‟ble Supreme Court.
-MEMORIAL ON BEHALF OF PETITIONER- XX | P a g e

STATEMENT OF ISSUES
WHETHER IN VIEW OF THE PROVISIONS OF PART III OF THE CONSTITUTION OF INDIA, THE
LEGISLATIVE ASSEMBLY OF SUMIMASEN HAS THE POWER TO IMPRISON A PERSON BY AN
UNSPEAKING ORDER?
II
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?
-MEMORIAL ON BEHALF OF PETITIONER- XXI | P a g e

SUMMARY OF ARGUMENTS

IMPRISON A PERSON BY AN UNSPEAKING ORDER.
It is humbly submitted that the Legislative Assembly does not have the power to
imprison a person as it abhors the Constitutional provisions. However, even if, the
Assembly has the power to imprison, it does not have the power to imprison a person
by an unspeaking order as it violates the principle of non-arbitrariness. It violates Art
14 of the Constitution of India as it also violates the legitimate expectation of the
person imprisoned. It violates the principle of natural justice and therefore, results in
violation of procedural fairness. It prejudices the person imprisoned as he would not be
aware of the reasons of his imprisonment and therefore, Art. 21 of the person
imprisoned would be violated.
ISSUE 2: THAT, THE § 63(3) OF THE HUMANITARIAN ASSISTANCE FUND TAX ACT, 2020
IS IN FLAGRANT VIOLATION OF PART III OF THE CONSTITUTION OF INDIA AND LIABLE
TO BE STRUCK DOWN AS UNCONSTITUTIONAL
It is humbly submitted before this Hon‟ble Court that the § 63(3) of the Humanitarian
Assistance Fund Tax Act, 2020 enacted by the State of Sumimasen is in flagrant
violation of part III of the Constitution of India as it abhors the Principle of Equality
enshrined under Article 14 of the Constitution of India. It also violates the Right to
freedom of trade or profession enshrined under Article 19(1) (g) of the Constitution of
India as it puts an unreasonable restriction upon trader‟s day to day business as well as
their profits. It also abhors the Right to Justice enshrined under Article 21 of the
Constitution of India.
-MEMORIAL ON BEHALF OF PETITIONER- XXII | P a g e

ARGUMENTS ADVANCED

IMPRISON A PERSON BY AN UNSPEAKING ORDER.
¶1. It is humbly submitted before the Hon‟ble Supreme Court that Legislative
Assembly of Sumimasen (hereinafter referred to as “Assembly”) is a „State‟ under Art
12 of the Constitution of India (hereinafter referred to as “Constitution”) and therefore
is subjected to the provisions of Part III of the Constitution. The action of the
Assembly imprisoning a person without an unspeaking order does violate the
provisions of Part III as firstly, the Assembly does not have the power to imprison a
person [1.1];secondly, fortiori, the Assembly cannot imprison a person with an
unspeaking order as it violates Art. 14 of the Constitution [1.2] and lastly, unspeaking
penal order if passed by the Assembly will violate Art 21 of the Constitution [1.3].
1.1 THAT THE LEGISLATIVE ASSEMBLY OF SUMIMASEN DOES NOT HAVE THE POWER
TO IMPRISON A PERSON.
¶2. It is humbly submitted before this Hon‟ble Court that all the privileges of House of
Commons cannot be claimed by the Assembly1 and this Hon‟ble Court has the power
to determine which privileges are available to the Assembly.2
¶3. It is asserted that the Assembly does not have the power to imprison a person either
by a speaking or unspeaking order as firstly, the penal power of the House of Commons
to imprison a person does not stand the test of time [1.1.1]; secondly, the House of
Commons once had the power to imprison owing to its history [1.1.2]; thirdly, the
Assembly had not formed any law under Art. 194(3) of the Constitution [1.1.3];
fourthly, as the power to imprison, if exercised by the Assembly, would violate the
doctrine of Separation of powers [1.1.4]; fifthly, the power to imprison, if exercised by
the Assembly without any enactment under Art. 194(3), violates Art 20(1) of the
1
Special Reference No. 1 of 1964, AIR 1966 SC 745 at ¶45 (India); See also, 9 DURGA DAS BASU,
COMMENTARY ON THE CONSTITUTION OF INDIA, 26 (S SSubramani, 9th ed. 2016).
2
Manjit Singh s/o MoolsinghSethi v. Maharashtra Legislative Assembly, 2006 (4) Mh.L.J. 834 (India);
See also, Pepper v Hart, (1993) AC 595 (U.K); See also: A.W. BRADLEY, CONSTITUTIONAL &
ADMINISTRATIVE LAW 160 (16th ed. 2014); See also: Special Reference, supra note 1 at ¶ 45, 56.
-MEMORIAL ON BEHALF OF PETITIONER- 1|Page

Constitution [1.1.5] and sixthly, the exercise of penal powers by Assembly violates Art
21 of the Constitution [1.1.6]
1.1.1 THAT THE PENAL POWER OF HOUSE OF COMMONS TO IMPRISON A PERSON DOES
NOT STAND THE TEST OF TIME.
¶4. It is humbly submitted that the Assembly has the privileges which the House of
Commons had immediately before the commencement of the Constitution.3 The
privilege of House of Common to imprison a person had ceased to exist before the
commencement of the Constitution [1.1.1.1]and therefore, cannot be claimed by the
Assembly. Moreover, the penal power of Houses or Assemblies has been revoked
across the world [1.1.1.2].
1.1.1.1 THAT POWER WITH HOUSE OF COMMONS HAD CEASED IMMEDIATELY BEFORE THE
COMMENCEMENT OF CONSTITUTION.
¶5. It is respectfully submitted that the penal power of the House of Commons had
lapsed with the passage of time. The power of committal has not been exercised by the
House of Commons since 1880.4 It has not used its power to impose a fine since 1666.5
The penal powers of the House of Commons had become obsolete by non-exercise and
could have been revived by a regular legislation and not mere by a resolution.6 The
House of Commons had never asserted their power again. It was held that the House of
Commons was no longer a judicial body, and could not consequently exercise any but
legislative powers, which does not include the power of contempt of the
legislature.7Therefore the power of imprison a person had been faded out by
desuetude.8
3
INDIA CONST. art. 194, cl. 3; See also: 2 SUBHASH C. KASHYAP, PARLIAMENTARY PROCEDURE THE
LAW, PRIVILEGES, PRACTICE AND PRECEDENTS, 1555 (2000); See also: Vemula Prashanth Reddy &Ors.
v. Komati Reddy Venkat Reddy & Ors. 2018 Indlaw HYD 229(India); See also: Amarinder Singh v.
Punjab Vidhan Sabha, (2010) 6 SCC 113(India).
4
Report on PARLIAMENTARY PRIVILEGES, Joint Committee on Parliamentary Privilege (2013)
http://www.parliament.the-stationery-office.co.uk/pa/jt199899/jtselect/jtpriv/43/4302.htm.
5
V.S. RAMA DEVI & B.G. GUJAR, RAJYA SABHA AT WORK, 278 (Shumsher K. Sheriff, 3rd ed. 2017); See
also: ERSKINE MAY, PARLIAMENTARY PRACTICE, 196 (24th ed. 2011).
6
Rajya Sabha at work, id.
7
Kilbourn v. Thompson, 103 U.S. 168 (1880)(U.S); See also, Ronald Goldfarb, The History of Contempt
Power, 1961, WASH. U. L. Q. 1,28 (1961).
8
Basu, supra note 1 at 18.

1.1.1.2 THAT THE PENAL POWER OF HOUSES OR ASSEMBLIES HAS BEEN REVOKED ACROSS THE
WORLD.
¶6. It is humbly submitted that if the privileges of Assembly are infringed, it is not
necessary that it should take the law into its own hands.9The Congress has practically
abandoned its practice of utilizing the coercive sanction of contempt proceedings at the
bar of the relevant House.10 The French Parliament has never enjoyed the broad
capacity to punish for contempt as possessed by the House of Commons.11 New
Zealand‟s House of Representatives has the power to impose fine only for its
contempt.12 Scotland and Wales legislative bodies have not been given the broad power
to punish contempt.13
¶7. It is also submitted that the reference to „House of Commons‟ had been omitted 14
from Art.194(3). The purpose of this amendment was to avoid any reference to foreign
institution.15 It therefore, follows that any reference to the privileges of that foreign
institution should also not be made.
1.1.2 THAT THE HOUSE OF COMMONS HAD THE POWER TO IMPRISON OWING TO ITS
HISTORY.
¶8. It is humbly submitted that the penal power was vested with the House of
Commons due to its history. It would seem that while vesting the legislature with the
privilege, immunities and powers of the House of Commons, the question how the
House happened to acquire them did not arise.16 It is asserted that the House of
Commons was sovereign and a superior court [1.1.2.1] and possessed the power due to
constant wrangle between the King and the House [1.1.2.2].
9
Joseph Minattur, Parliamentary Privilege: Divination or Definition?, JILI, 15 (1973); See also:
STANELY DE SMITH & RODNEY BRAZER,CONSTITUTIONAL AND ADMINISTRATIVE LAW, 551 (Hilaire
Barnett, 13th ed. 2019).
10
1 B. SCHWARTS, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES, 124 (1963); See
also, Report on CONGRESS‟S CONTEMPT POWER AND THE ENFORCEMENT OF CONGRESSIONAL
SUBPOENAS: LAW, HISTORY, PRACTICE, AND PROCEDURE, Congressional Research Service, 2 (2017)
https://crsreports.congress.gov/product/pdf/RL/RL34097.
11
WEIZHONG YI, RESEARCH ON PARLIAMENTARY PRIVILEGE CONCURRENTLY DISCUSS CHINESE
NATIONAL PEOPLE‟S CONGRESSIONAL PRIVILEGE, 24 (2009).
12
Parliamentary Privilege Act, §22 (2014).
13
Bernard Wright, Patterns Of Change – Parliamentary Privilege, PSC-ANU, 10 (2007).
14
Constitution (Forty Fourth Amendment) Act, Bill No. 88 of 1978, § 45 (1978).
15
M N KAUL& S L SHAKDHER, PRACTICE AND PROCEDURE OF PARLIAMENT, 284 (Anoop Mishra, 7th ed.
2016).
16
Minattur, supra note 9 at 12.

1.1.2.1 THAT THE HOUSE OF COMMONS WAS SOVEREIGN AND A SUPERIOR COURT.
¶9. It is submitted that all the privileges of the House of Commons are based on the
doctrine of lex et consuetudo Parliamenti.17 It has the power to imprison a person for
its contempt or breach of its privileges.18 It has been considered that this original
judicial capacity, which the House of Commons once had, supplied the true grounds for
its exercise of the contempt power forevermore.19The principles on which power and
privilege of punishment for contempt of the House of Commons rest have no
application to other legislative bodies, especially which is in no sense a court.20 The
courts, in holding that there was no contempt power, distinguished the House of
Commons as sui generis with respect to the contempt power of a legislature.21
1.1.2.2 THAT THE HOUSE OF COMMONS GOT THE POWER TO IMPRISON DUE TO CONSTANT
WRANGLE BETWEEN KING AND THE HOUSE.
¶10. It is submitted that the House of Commons had asserted to themselves the power
to imprison a person for contempt due to the constant differences with King. 22The
parliamentary privilege emerged out of centuries of struggle between King and
Commons in England culminating in the Bill of Rights of 1689.23
It is submitted that no such historical reason for the origin of privileges could be
assigned to Union of India24. The Parliament or Assembly had never performed any
judicial function and therefore, the power to imprison a person cannot be said to be
vested with the Assembly.
17
Stockdale vs. Hansard, 112 E.R. 1112 (U.K);See also: Special Reference, supra note 1 at ¶181, See
also: C S Potts, Power of Legislative Bodies to Punish for Contempt, 74, U. Pa. L. Rev. 691, 692-97
(1926); See also: Kielley v Carson, (1842) 12 ER 225 (U.K).
18
ERSKINE MAY, TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT, 90 (W.
Mckay Ed., 23rd ed. 2004); See also: D L KEIR AND F H LAWSON, CASES IN CONSTITUTIONAL LAW, 126
(4th ed. 1954); See also, 78 HALSBURY, LAWS OF ENGLAND ¶1076-1093 (5th ed. 2010); See also:
Kalpana Mehta &Ors. v. Union of India &Ors., (2017) 7 SCC 302.
19
Goldfarb, supra note 7 at 20; See also: Alexander J. Cella, The Doctrine of Legislative Privilege of
Freedom Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the
Courts, 2, Suffolk U. L. REV. 1,35 (1968).
20
Potts, supra note 17;See also, Kilbourn, supra note 7.
21
Kilbourn, id.; See also: Fenton v. Hampton(1858) 11 Moo P.C. 347.
22
Alexander, supra note 19; See also: CARL WITTKE, THE HISTORY OF PARLIAMENTARY PRIVILEGE IN
ENGLAND, 30 (1970).
23
Weizhong, Supra note 11 at 36; See also: Potts, supra note 17 at 74.
24
Minattur, supra note 9; See also LETTER BOOKS, FACTORY RECORDS, 8, 265 (1858); See also:
Nirmalendu Bikash Rakshit, Parliamentary Privileges and Fundamental Rights, 39 (13), EPW , 1379,
1381(2004); See also: ASOK CHANDA, FEDERALISM IN INDIA, A STUDY OF UNION, 232 (1965); See also:

1.1.3 THAT THE LEGISLATIVE ASSEMBLY CANNOT CLAIM THE POWER TO IMPRISON AS
IT HAS NOT FORMED ANY LAW UNDER ARTICLE 194(3).
¶11. It is humbly submitted that the failure to enact any law under Art 194(3) bars the
Assembly to claim the privilege to imprison a person as exercise of such power, in the
present time, would be contrary to the intention of the Constituent Assembly [1.1.3.1]
and violates the principle of Nulla poena sine lege[1.1.3.2].
1.1.3.1 THAT IT IS CONTRARY TO INTENTION OF THE CONSTITUENT ASSEMBLY
¶12. It is humbly submitted that non-codification of any law under Art. 194(3) by the
Assembly25is contrary to the intention of the framers of Constitution.26 It was originally
a temporary affair.27 Frederick Whyte had observed28 that Legislatures in India do not
possess the power to punish contempt as it had not been statutorily conferred29.It had
also been observed that non enactment of laws under Art. 105(3) and 194(3) and
reference to House of Commons keep it as a memento of our prolonged slavery.30
1.1.3.2 THAT IT VIOLATES THE PRINCIPLE OF NULLA POENA SINE LEGE
¶13. Principle of nulla poena sine lege31 is a fundamental principle which gives
protection similar to Art. 20(1) of the Constitution. Due to non-enactment of laws in
terms of Art 194 (3), a citizen will have to make a research into the unwritten law of the
privileges of the House of Commons32 at the risk of being called before the barof the
legislature.33It is also asserted that every state action must be governed by a law34 and
in absence of the same; the action of punishing a person would be void. Therefore,
imprisoning a person without any codified law does violate the principle of nulla poena
sine lege.
25
Note 3, Page 3, MOOT PROPOSITION, 9th ASCENT MOOT COURT COMPETITION, 2020.
26
27
X CONSTITUENT ASSEMBLY OF INDIA DEBATES-PROCEEDINGS, 55.
28
Speakers‟ Conference (1921).
29
Kaul, supra note 15 at 289.
30
Subba Rao, J in Foreword to V.G. RAMACHANDRAN, THE LAW OF PARLIAMENTARY PRIVILEGE IN
INDIA, xix (1966).
31
There should be no punishment without previous legal authority.
32
Minattur, supra note 9.
33
M.S.M. Sharma v. S.K. Sinha, AIR 1959 SC 395 (India).
34
Sanya Talwar, SC Refers To Larger Bench UP Govt's Appeal Against Allahabad HC Order For
Removal Of 'Name & Shame' Banners, Hindustan Times (Mar 12, 2020)
https://www.hindustantimes.com/india-news/name-and-shame-posters-supreme-court-refers-issue-to-
larger-bench-does-not-stay-allahabad-hc-order/story-LGEr4nxFAt4vK8XZyWU1bN.html.

1.1.4 THAT THE POWER TO IMPRISON A PERSON, IF EXERCISED BY A LEGISLATIVE

ASSEMBLY, VIOLATES THE DOCTRINE OF SEPARATION OF FUNCTIONS.
¶14. It is humbly submitted that the functions of the different parts or branches of the
Government have been sufficiently differentiated and consequently it can very well be
said that Constitution does not contemplate assumption, by one organ or part of the
State, of functions that essentially belong to another.35There exists a separation of
functions.36Therefore the power to imprison, which is a judicial function [1.1.4.1]
cannot be exercised by the Assembly [1.1.4.2] as it would violate the doctrine of
separation of functions.
1.1.4.1 THAT THE POWER TO IMPRISON A PERSON IS NECESSARILY A JUDICIAL FUNCTION
¶15. It is humbly submitted that a judicial function creates a norm which is binding on
one or both parties to the conflict.37The determination of guilt and adjudication in
disputes are judicial function.38The result of exercise of a judicial function is a
judgment or sentence.39
¶16. It is asserted that the power of the legislature to punish for contempt or breach of
its privileges has a judicial character.40Power to punish for contempt has been
recognized as a judicial power.41The warrant issued by the speaker of an Assembly in
pursuance of a resolution of the House falls within the category of judicial warrants. 42It
is also submitted that the power to punish for contempt originated with the House of
Commons when the English Parliament was primarily a Court of Justice. 43 If the
Assembly claims to possess the power of the House of Commons to punish a person,
the power must carry with it the judicial nature as its ancillary feature.44
35
Rai Saheb R.J. Kapur v. State of Punjab (1955) 2 SCR 225(India).
36
12 HAMLYN, LECTURES ON THE COMMON LAW OF INDIA, 174(1960); See also: Indira Nehru Gandhi v.
Raj Narain & Ors. 1975 (Supp) SCC 1 (India).
37
Indira, id.
38
Kaul, supra note 15 at 343.
39
Indira, supra note 36; See also: Liyanage v. The Queen (1967) 1 AC 259, 291 (U.K).
40
Kalpana, supra note 18 at ¶198 (India); See also: Victoria vs. Glass (1869) 3 L.R.P.C. 560 (U.K).
41
Doyle v. Falconer (1865-67) LR 1 PC 328 (U.K.).
42
Gunapathi Keshavram Reddy v. Nafisul Hassan and State of U.P., AIR 1954 S.C. 636 (India).
43
May, supra note 18 at 176; See also: Special Reference, supra note 1 at ¶ 76; See also: Queen v.
Richards 92 C.L.R. 157 (Australia); See also: Kilbourn, supra note 7.
44
By the doctrine of Quando lex aliquid alicui concedit, concedituret id sine qua res ispa esse non
potest; See also: Komati Reddy Venkat Reddy &Anr. v. State of Telangana, Law and Legislature
Department, Hyderabad &Ors., 2018 Indlaw HYD 197 at 133(India).

1.1.4.2 THAT THE ASSEMBLY CANNOT PERFORM ANY JUDICIAL FUNCTION

¶17. It is submitted that any resolution passed by the Assembly to imprison a person is
either a judicial sentence or a legislative judgment like a Bill of Attainder. 45The
Assembly functions as a judicial body when it considers that a person has committed
breach of privilege and that he is liable to be punished by way of a sentence of
imprisonment46 However, it is submitted that a judicial power cannot be said to be
devolve upon our legislature or parliament merely by resorting some concept of a
succession to the powers of the medieval "High Court of Parliament" in England,
without any law.47
¶18. It is submitted that the Assembly cannot claim the privilege to imprison a person as
judicial power has lain in the hands of the Judiciary prior to the Constitution and also
since the Constitution.48 Proper exercise of judicial power is inseparable from
appropriate procedure.49 Absence of procedure means there was no intention to include
the power as well.50
¶19. Therefore, it is submitted that the Assembly cannot exercise the power to imprison
a person which is necessarily a judicial function as it will violate the rule of separation
of functions envisaged in our Constitution.
ASSEMBLY VIOLATES ARTICLE 20(1) OF THE CONSTITUTION.
¶20. It is humbly submitted that the Assembly‟s privileges are subject to Art 20 of the
Constitution.51 Owing to the fact that no law has been enacted in terms of Art 194(3)52,
the imprisonment of any person violates Art 20(1) [1.1.5.1]as it would have
retrospective effect [1.1.5.2].
1.1.5.1 THAT DUE TO NON-ENACTMENT, IMPRISONMENT OF ANY PERSON VIOLATES ART 20(1)
¶21. It is humbly submitted that Art 20(1) requires an „offence‟ and „law in force‟ for
convicting any person. The word “offence” in Art. 20(1)means something which is a
45
Liyanage v. The Queen (1967) 1 AC 259 (U.K); See also: Indira, supra note 36 at 89;See also: 1
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 44 (1753).
46
Komati, supra note 44.
47
Indira, supra note 36 at ¶ 592.
48
Indira, supra note 36 at ¶ 33, 553.
49
India, supra note 36 at ¶ 577.
50
Id.
51
Special Reference, supra note 1.
52
Note 3, supra note 24.

violation of a law in force.53 There exists no „law in force‟ which provides for any
offence against the Assembly and therefore the power to imprison does violate Art 20
of the Constitution.
1.1.5.2 THAT PENALIZATION WOULD HAVE A RETROSPECTIVE EFFECT
¶22. It is submitted that any act for which the person would be imprisoned would be an
innocent act as there was no list or closed set of actions which could be subject to
punishment by the House.54 An innocent act cannot be made criminal by a law made
after the commission of the act.55 Until categories of contempt are not defined, the
penalization would have a retrospective effect56 and it would violate Art 20(1)57
ASSEMBLY, VIOLATES ARTICLE 21 OF THE CONSTITUTION.
¶23. It is humbly submitted that the while imprisoning a person, the Assembly
essentially determines the guilt of the person.58The Assembly is the sole adjudicator of
actions amounting to its contempt or breach of its privileges. 59Therefore, it violates
Article 21 of the Constitution as it violates the principle of nemo judex in causa
sua[1.1.6.1] and the principle of fairness [1.1.6.2].
1.1.6.1 THAT PENAL POWERS OF ASSEMBLY VIOLATES THE PRINCIPLE OF NEMO JUDEX IN
CAUSA SUA
¶24. It is humbly submitted that the adjudication of a dispute by a party to the dispute
himself violates the principle of nemo judex in causa sua60. The alleged contempt or
breach of privilege is against the Assembly and Assembly only decides upon the guilt
of the person. It convicts a person61 either for its contempt or for breach of its
privileges. It violates the principles of natural justice which forms a part of Art. 21 of
the Constitution.62
53
State v. Padma Kant Malaviya, AIR 1954 All 523 (India).
54
Weizhong, supra note 11 at 16.
55
5 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 25 (S S Subramani, 9th ed.
2016).
56
Minattur, supra note 9 at 9.
57
West Ramnad Electric Distribution Co. Ltd v. State of Madras, AIR 1962 SC 1753 (India).
58
D. Murugesan v. Hon'Ble Speaker (Thiru Sedapatti R. Muthiah) T. N. Legislative Assembly, AIR
1995 MAD 260 (India).
59
Raja Ram Pal v. The Hon‟ble Speaker, Lok Sabha & Ors., (2007) 3 SCC 184 (India).
60
No-one should be a judge in his own cause.
61
Brass Crosby, 95 E.R. 1005 (1771) (U.K.).
62
Maruti Ltd, Chandigarh v. PAN India Plastic Pvt. Ltd, New Delhi, AIR 1993 P&H 215 (India); See
also:Dilip S. Dahanukar v. Kotak Mahindra Co Ltd, (2007) 6 SCC 528 (India).

1.1.6.2 THAT SUCH POWER VIOLATES THE PRINCIPLE OF FAIRNESS

¶25. It is submitted that procedural fairness and regularity are of the indispensable
essence of liberty.63 Fairness is a principle of due process.64 Adjudication by an
interested party violates principle which says “not only must Justice be done; it must
also be seen to be done”.65 Where a person becomes judge of his own cause, the
possibility of bias cannot be ruled out and rather bias can be conveniently
referred.66The Assembly, at times, is governed by prejudices and passions. 67It violates
the principle of fairness68 and therefore Art 21 is violated.
1.2 THAT, EVEN OTHERWISE, IMPRISONMENT OF A PERSON, BY LEGISLATIVE
ASSEMBLY OF SUMIMASEN BY AN UNSPEAKING ORDER VIOLATES ARTICLE 14 OF
THE CONSTITUTION.
¶26. It is submitted that compliance with principles of natural justice and fair play is a
part of the fundamental right guaranteed by Article 14.69Imprisonment necessarily has
civil consequences.70 The Assembly while adjudicating is required to adhere with the
principles of natural justice.71An unspeaking order violates the principle of natural
justice.72 Therefore, an unspeaking penal order passed by the Assembly violates Art. 14
as firstly, it violates the principle of non-arbitrariness [1.2.1] and secondly, it violates
the legitimate expectation of the person[1.2.2].
1.2.1 THAT UNSPEAKING ORDER VIOLATES THE PRINCIPLE OF NON-ARBITRARINESS
¶27. It is humbly submitted that reasons are the links between the materials on which
certain conclusions are based and the actual conclusions.73 Very requirement of giving
63
Shaughnessy v. Mezei, 345 U.S. 206 (1953) (U.S.) ; See also, A. R. Antulay v. R S Nayak, AIR 1988
SC 1531 (India).
64
DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, 386 (2nd ed. 2000).
65
R v. Sussex Justices, ex parte McCarthy, (1924) 1 KB 256; See also: Manak Lal v. Dr. Prem Chand,
AIR 1957 SC 425 (India).
66
Pranjit Singh v. State of Punjab &Ors. (2009) 4 RSJ 294 (P&H)(after considering A K Kripak v.
Union of India, AIR 1970 SC 150 (India) and Arjun Chaubey v. Union of India, AIR 1984 SC
1356(India))(India)
67
KHALID LATIFGAUBA, BATTLES AT THE BAR , 207 (1956).
68
State Of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86 (India).
69
Sakuni Choudhary & Ors. v. Speaker, Legislative Assembly & Ors., 1992(2) PLJR 406 (India).
70
Colleen F. Shanahan ,Significant Entanglements: A Framework for the Civil Consequences of
Criminal Convictions, 49, ACLR ,1387, 1394 (2012).
71
Raja Ram Pal, supra note 59; See also: Jagjit Singh v. State of Haryana &Ors., AIR 2007 SC 590 at
¶55 (India), See also: Komati, supra note 44.
72
S.N. Mukherjee v. Union Of India, AIR 1990 SC 1984 (India).
73
Gurdial Singh Fijji v. State of Punjab,(1979) 2 SCC 368 (India).

reason is to prevent unfairness or arbitrariness in reaching conclusions.74This

requirement grows where the matter has civil consequences.75The rule of reason is
antithesis to arbitrariness in action and is a necessary concomitant of the principles of
natural justice.76Non speaking penal order passed by the Assembly violates the
principle of non-arbitrariness as it denotes non-application of mind [1.2.1.1] and
amounts to discrimination [1.2.1.2].
1.2.1.1 THAT UNSPEAKING ORDER DENOTES NON-APPLICATION OF MIND
¶28. It is asserted that an unspeaking order reflects non-application of mind by the
adjudicating authority. Application of mind is a sine quo non if the authority has to
arrive at a conclusion.77 Application of mind is a safeguard against an arbitrary exercise
of power.78 Application of mind brings reasonableness. Application of mind is best
demonstrated by recording reasons in support of the order or conclusion.79 An order
without reasons shows non-application of mind and therefore, the order would be liable
to be quashed.80
1.2.1.2 THAT UNSPEAKING ORDER AMOUNTS TO DISCRIMINATION
¶29. It is submitted that duty to act fairly is part of fair procedure envisaged under Art.
1481A speaking order is a facet of reasonableness in Article 14 of the
constitution.82Reason is the essence of the right of equality.83 It ensures that judicial
decisions are not made arbitrarily84 or based on speculation, suspicion, or irrelevant
information.85 The obligation to record reasons operates as a deterrent against possible
74
Woolcombers of India Ltd. v. Workers Union, AIR 1973 SC 2758 (India).
75
Neelima Misra v. Harinder Kaur Paintal and Ors., (1990) 2 SCC 746 (India).
76
B A Linda Reddy v. Karnataka State Transport Authority, (2015) 4 SCC 515 at ¶ 16 (India).
77
Masarat Alam Bhat v. State of Jammu & Kashmir &Ors., (2010) 23 RCR (Criminal) 530 (India)
78
M/S Swarn Kumar And Company v. State Of Himachal Pradesh And Anr.,Arb. Case No. 55 of 2016
(All HC)(India).
79
Krishna Swami v. Union of India, (1992) 4 SCC 605 (India); See also: Ashok Paper Mills Kamgar
Union v. Union of India, (2000) 10 SCC 28 (India).
80
Seema Singh v. Prescribed Authority/Commissioner Workman Compensation U.P. at Allahabad &Ors.,
Civil Misc. Writ Petition No. 13893 of 2009 (All HC) (India); See also: Karnail Singh v. State of Punjab
2012 (2) SCT 325(India).
81
LIC v. Consumer Education and Research Centre, (1995) 5 SCC 482 (India).
82
Sardar Ali Singh(dead) v. State of Punjab, 2016 (2) SCT 151(India).
83
Govt. Branch Press v. D B Belliappa, AIR 1979 SC 429 (India); See also: M P JAIN & S N
JAIN,PRINCIPLES OF ADMINISTRATIVE LAW, 521(7th ed. 2013).
84
Mathilde Cohen, When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach, 72,
Wash. & Lee L. Rev. 483 (2015);See also: UPD KESARI, LECTURES ON ADMINISTRATIVE LAW 312 (19th
ed. 2012).
85
Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 41 CORNELL L. REV. 1
(2007).
-MEMORIAL ON BEHALF OF PETITIONER- 10 | P a g e

arbitrary action.86Every State action must be informed by reason and it follows that an
act uninformed by reason, is arbitrary87 It is submitted that arbitrariness can take many
forms and shapes but whatever form or shape it takes, it is nonetheless discrimination.88
Therefore, violation of principle of natural justice would amount to arbitrary and
discriminatory treatment and violates the guarantee given by Art. 14.89
1.2.2 THAT UNSPEAKING PENAL ORDER VIOLATES THE PRINCIPLE OF LEGITIMATE
EXPECTATION OF THE PERSON.
¶30. It is humbly submitted that the plea of legitimate expectation relates to procedural
fairness in decision making process and forms part of rule of non-
arbitrariness.90Procedural fairness includes giving of reasons for an action.91It is
grounded in the rule of law which requires certainty in State‟s action both in procedural
and substantive matters.92 The doctrine can be said to be based on Art. 14 of the
Constitution.93 Every State action may be informed by reason and it follows that an act
uninformed by reason, is arbitrary94
¶31. It is submitted that legitimate expectation has to be determined in accordance with
the larger public interest.95 The person imprisoned has a legitimate expectation of a fair
treatment by state. He has a legitimate expectation that he would be informed of the
reasons for his imprisonment, be it by the Court of Law or by the Assembly. Failure to
consider the legitimate expectation may render the decision arbitrary and therefore it
becomes a part of the principle of non-arbitrariness.96Therefore, imprisoning a person
by an unspeaking order violates his legitimate expectation.
86
Travancore Rayons Ltd. v. Union of India, AIR 1971 SC 862 (India).
87
Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212 (India);See also Thangaraj v. State, 2017 SCC
Onine Mad 1062 (India).
88
Union of India v. Tulsiram Patel, AIR 1985 SC 1416 (India).
89
State of Andhra Pradesh v. Nalla Raja Reddy, AIR 1967 SC 1458 (India);See also: Sakuni, supra note
69.
90
2 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 660 (S SSubramani, 9th ed.
2016).
91
Knight v. Indian Head School Division No. 19, (1990) 1 SCR 653 (India).
92
Jitendra Kumar v. State of Hayana, (2008) 2 SCC 161 (India) relying on Chanchal Goyal (Dr.) v.
State of Rajasthan, (2003) 3 SCC 485 (India); See also Bombay Dyeing & Mfg. Co. Ltd. v. Bombay
Environmental Action Group, (2006) 3 SCC 434(India); See also: Union of India v. Hindustan
Development Corpn., (1993) 3 SCC 449 (India).
93
Jain, supra note 83 at 15; See also: Food Corp. of India v. Kamdhenu Cattle Feed Industries, AIR 1993
SC 1601 (India).
94
Shrilekha, supra note 87; See also Thangaraj, supra note 87.
95
M. Elangovan v. Commissioner, Kodaikanal Municipality, AIR 1996 Mad 401 (India).
96
MRF Ltd. v. CST,(2006) 8 SCC 702 (India).

1.3 THAT IMPRISONMENT OF A PERSON, BY LEGISLATIVE ASSEMBLY OF SUMIMASEN

BY AN UNSPEAKING ORDER ALSO VIOLATES ARTICLE 21 OF THE CONSTITUTION.
¶32. It is submitted that Public authorities should justify the action, assailed on the
touchstone of justness, fairness, reasonableness and as a prudent owner.97The landmark
case of Re Haughey98 laid down strict natural justice requirements where fundamental
rights, including the constitutional right to good name, are affected.99Any action taken
in contravention of natural justice is violative of fundamental right guaranteed by Art.
21 of the Constitution.100Mandate on the adjudicator to adhere to the principles of
natural justice emanates from a requirement of the substantive right of the parties to the
proceeding, to be dealt with fairly and impartially.101 The Assembly decides and
determines to the prejudice of a person and therefore has the duty to act judicially102
and must follow the principle of natural justice. Because the fundamental issue of
liberty is at stake, reasons must be there103. The requirement of reason emanates from
the doctrine of procedural fairness.104 Therefore the power of the Assembly to imprison
a person by an unspeaking order does violate Art. 21 as firstly, it violates the principle
of fair procedure [1.3.1] and secondly, an unspeaking order is not tenable in eyes of law
[1.3.2].
1.3.1 THAT UNSPEAKING ORDER VIOLATES THE PRINCIPLE OF FAIR PROCEDURE
¶33. It is submitted that the procedure contemplated by Art. 21 is the procedure that is
“right, just and fair” and not arbitrary, fanciful or oppressive. In order that the
procedure is right, just and fair, it should conform to the principle of natural justice, i.e.,
fair play in action105. Unspeaking order violates Art 21 as it violates the doctrine of
fairness [1.3.1.1] and causes prejudice to the person imprisoned [1.3.1.2].
97
98
Re Haughey (1971) IR 217 (Ireland).
99
Fiona Donson and Darren O'Donovan, Designing Effective Parliamentary Inquiries: Lessons Learned
From The Oireachtas Banking Inquiry, DULJ, 4 (2016).
100
8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 372 (S S Subramani, 9th ed.
2016).
101
Arunava Ghosh v.The Speaker, West Bengal Legislative Assembly & Ors, W.P. No. 1125 of 2013
(Cal HC) (India).
102
Sakuni, supra note 69.
103
ELIZABETH GUISSANI, THOMSON, CONSTIUTIONAL AND ADMINISTRATIVE LAW, 310 (1st ed. 2008).
104
Mukherjee, supra note 72.
105
Basu, supra note 55 at 132

1.3.1.1 THAT IT VIOLATES THE DOCTRINE OF FAIRNESS

¶34. It is submitted that procedural fairness is an indispensable essence of
liberty.106The Assembly cannot act arbitrarily and has to comply with principles of
natural justice and fair play.107 Procedural fairness is an implied mandatory requirement
to protect arbitrary action.108 It is also because that those affected by the decisions of
third parties in both formal and informal settings react to the procedural justice of the
decision making process at least as much, and often more, than they react to the
decision itself.109The authority is required to act fairly even to persons who have no
right.110The requirement of giving reason is to prevent unfairness or arbitrariness in
reaching conclusions111 and it constitutes principle of natural justice of procedural
fairness.112Reasons ensure clarity, objectivity, transparency and fairness.113Therefore,
an unspeaking penal order amounts to unfair procedure which offends Art 21.114
¶35. It is also submitted that fairness while punishing any person for contempt as an
essential principle has been recognized across the world. Art. 6(1) of ECHR115 requires
giving of reason116 and therefore reasons are to be required to punish any person for
contempt.117 House of Representatives is bound to set out the particulars of the offence
committed by the person.118 It seeks to ensure compliance of principle of natural
justice.119 It is also asserted that New Zealand‟s House of Representatives is also under
an obligation to inform the findings of the committee.120 Further, recommendation has
106
Antulay, supanote 63.
107
Sakuni, supra note 69
108
N. Kannadasan v AjoyKhose, (2009) 7 SCC 1 (India); See also Basu, supra note 90 at 686.
109
Tom R. Tyler, What is Procedural Justice?: Criteria used by Citizens to Assess the Fairness of Legal
Procedures, 22(1), L&SR 103, 128 (1988).
110
C.K. Thakker, From Duty to Act Judicially to Duty to Act Fairly 4 SCC (Jour) 1,3 (2003).
111
Woolcombers, supra note 74.
112
Basu, supra note 90 at 732;See also: R v. Civil Service Appeal Board (1991) 4 All ER 310 (U.K); See
also: R v. Parole Board (1992) QB 740 (U.K); See also: R v. Secretary of State for the Home Dept.
(1993) 3 All ER 92 (U.K).
113
Victoria Memorial Hall v. Howrah GanatantrikNagrikSamity, (2010) 3 SCC 732 (India).
114
Krishna, supra note 79.
115
Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6, Dec 4 th, 1950. 213
U.N.T.S 221.
116
Hadjianastassiou vs. Greece, (1993) 16 EHRR 219; See also: MARK ET ALL, ADMINISTRATIVE LAW
TEXT AND MATERIAL, 407 ( 4th ed. 2011).
117
Report, supra note 4 at 19.
118
Parliamentary Privileges Act, Act No. 21 of 1987, § 9 (1987);See also: Explanatory Memorandum,
House Of Representatives Parliamentary Privileges Bill 1987, 8, (1987).
119
DAVID ELDER , HOUSE OF REPRESENTATIVES PRACTICE 780 (7th ed. 2018).
120
Report, supra note 4 at 26

also been made by the Joint Committee in U.K.121 to act fairly with which the
government has also concurred.122Therefore, the Assembly should also act in a fairly
manner by providing reasons to the person imprisoned.
1.3.1.2 THAT IT CAUSES PREJUDICE TO THE PERSON IMPRISONED
¶36. It is submitted that an unspeaking imprisoning order causes prejudice to the person
imprisoned. It is well settled that the legality of the conviction and the sentence passed
by the Assembly can be challenged in the Courts of Law.123Reasons are the links
between the material and the conclusion.124Failure to give reasons amounts to denial of
justice.125It even hampers the administration of justice.126 Compliance with principles
of natural justice is a substantive right127 and violation thereof sufficient to cause
prejudice.128An order without reasons causes prejudice to the person imprisoned against
whom it is pronounced, as that person is unable to know the ground which weighed
with the Assembly in rejecting his claim and also causes impediments in his taking
adequate recourse.129 It is submitted that the right of appeal can neither be interfered
with nor impaired, nor can it be subjected to any condition130, otherwise Art. 21 would
be violated.131
1.3.2 THAT AN UNSPEAKING ORDER IS NOT TENABLE IN THE EYES OF LAW
¶37. It is submitted that the Assembly cannot claim the power to issue any unspeaking
order.132 Reasons substitute subjectivity by objectivity. Absence of reasons renders the
order indefensible/unsustainable particularly when the order is subject to further
challenge before a higher forum.133 A non-speaking order is void-ab-initio134as it can be
termed as arbitrary andviolates Art. 21 of the Constitution.135 As the assembly is
121
Id.
122
Government Response, Joint Committee on Parliamentary Privilege, 3 (2013).
123
Special Reference, supra note 1; See also: Raja Ram Pal, supra note 59; See also: Amarinder, supra
note 3; See also:DD Basu (note 1) pg 26.
124
Krisha, supra note 79.
125
Alexander Machinery (Dudley) Ltd. v. Crabtree (1974) 1 CR 120 (China).
126
CCT v. Shukla & Bros., (2010) 4 SCC 785 (India); See also: Mukherjee, supra note 72.
127
128
Id.
129
Ahmad Ullah v. Union of India, Civil Writ No. 25502 of 2019(All HC)(India).
130
Rudul Shah v. State of Bihar, AIR 1983 SC 1086 (India).
131
132
Keilley, supra note 17; See also: Special Reference, supra note 1.
133
Raj Kishore Jha v. State of Bihar &Ors., AIR 2003 SC 4664 (India); See also: Vishnu Dev Sharma v.
State of Uttar Pradesh &Ors., (2008) 3 SCC 172 (India).
134
Jain, supra note 83 at 682.
135
Thangaraj, supra note 87.

exercising a judicial function136, it must support its order with reasons.137 A judicial
order which violates the principles of natural justice is a nullity. 138 Therefore it is
submitted that absence of reasons if fatal to the legality of the order 139 and the order is
untenable in the eyes of law.140Any unspeaking order passed by the Assembly would be
a nullity and therefore, would violate Art 21, as the procedure established by law would
be vitiated.
¶38. It is therefore, submitted that the power to imprison a person, if exercised by the
Assembly, by an unspeaking order would violate Art 14 and 21 of the Constitution.
Therefore, the Assembly cannot pass an unspeaking order to imprison any person.
ISSUE2: THAT THE PROVISION OF § 63(3) OF THE HUMANITARIAN ASSISTANCE FUND
TAX ACT, 2020 IS IN FLAGRANT VIOLATION OF PART III OF THE CONSTITUTION OF
INDIA AND LIABLE TO BE STRUCK DOWN AS UNCONSTITUTIONAL.
¶39. It is humbly submitted before this Hon‟ble Court that the provision of § 63(3)
(hereinafter referred as Impugned Provision) of the Humanitarian Assistance Fund Tax
Act, 2020 (hereinafter referred as HAFTA) enacted by the State of Sumimasen is in
flagrant violation of part III of the Constitution of India and liable to be struck down as
unconstitutional. This argument will be dealt in a three-fold manner. Firstly, That the
Impugned provision of HAFTA abhors the Principle of Equality enshrined under
Article 14 of the Constitution of India [2.1]; secondly,That the Impugned Provision of
HAFTA violates the Right to freedom of trade or profession enshrined under Article
19(1) (g) of the Constitution of India [2.2.]; thirdly, That the Impugned provision of
HAFTA abhors Right to Justice enshrined under article 21 of the Constitution of India
[2.3].
¶40. It is humbly submitted that any law which takes away or abridges the
Fundamental Rights of the person shall be declared as void.141 The Impugned Provision
136
137
Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537 (India).
138
Antulay, supra note 63.
139
Joseph v. Supdt of Post Offices, AIR 1961 Ker 197 (India); See also: V S Chauhan, Reasoned
Decision: A principle of Natural Justice, 37, JILI, 92 (1995).
140
State of U.P. v. Battan and Ors., (2001) 10 SCC 607 (India) ;See also: Buddhraj v. State of UP, Civil
Writ No. 1545 of 2017 (All HC) (India); See also: Nanak Chand Sharma v. State of U.P. &Ors., Civil
Writ No. 18164 of 2018 (All HC)(India).
141
INDIA CONST. art.13.

of HAFTA enacted by the State of Sumimasen, inter alia, provides that no reason will
be furnished for issuing an assessment under § 63 of HAFTA142 is arbitrary, malafide,
irrational or unreasonable in nature and abhors the principle of equality143, right to
freedom of trade, profession, and business144, Principles of Natural Justice, and Right to
Access Justice.145 The thread of reasonableness runs through the entire part III of
Constitution.
2.1 THAT THE IMPUGNED PROVISION OF HAFTA ABHOR THE PRINCIPLE OF
EQUALITY ENSHRINED UNDER ARTICLE 14 OF THE CONSTITUTION OF INDIA.

¶41. It is humbly submitted that equality is one of the corner-stones of Indian
democracy146 and is a basic structure of the Constitution.147 Therefore, neither
Parliament nor the executive can transgress the principle of equality. Through various
judicial pronouncements, it was held that legislation, as well as subordinate legislation,
can be struck down not only on the ground of reasonable classification148 but also on
the ground of “Manifest Arbitrariness”149 The Impugned provision of HAFTA is ultra-
vires to the principle of equality. This argument will be dealt in a three-fold manner.
Firstly, that the Impugned provision of HAFTA abhors the Doctrine of Manifestly
Arbitrariness [2.1.1]; Secondly that the Impugned provision of HAFTA violates the
Principal of Natural Justice [2.1.2].
2.1.1 THAT THE IMPUGNED PROVISION OF HAFTA ABHORS THE DOCTRINE OF
MANIFESTLY ARBITRARINESS.
¶42. It is a well-settled law that equality is antithetic to arbitrariness and where an act is
arbitrary, it is implied that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14.150 In Shayara Bano v. Union
142
Appendix, Page 4, MOOT PROPOSITION, 9 thASCENT MOOT COURT COMPETITION, 2020.
143
144
INDIA CONST. art.19, cl. 1.
145
INDIA CONST. art. 21.
146
Indra Sawhney v. Union of India, AIR 1993 SC 477 at ¶260 (India).
147
M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 666, at ¶13 (India); See also Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225 at ¶1 (India); see also, Bharati Reddy v. State of Karnataka,
(2018) 12 SCC 61(India).
148
Shrikishan Singh v. State of Rajasthan, AIR 1955 SC 795 at ¶3 (India); see also, T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 at ¶346 (India).
149
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 (India); see also K.R. Lakshmanan (Dr.) v.
State of T.N., (1996) 2 SCC 226 (India).
150
E.P. Royappa v. State of Tamil Naidu, (1974) 4 SCC 3 (India).

of India151, Justice Nariman held that Manifest arbitrariness means “something done by
the legislature capriciously, irrationally and/or without adequate determining principle
and also when something is done which is excessive and disproportionate; such
legislation would be manifestly arbitrary.” In a positive sense, it means that legislation,
as well as subordinate legislation, should conform to norms which are rational,
informed with reason and guided by public interest, etc.152
2.1.1.1 THAT NOT FURNISHING REASON UNDER IMPUGNED POWER RESULTED IN ABSOLUTE
DISCRETIONARY POWER TO HAFTA COLLECTORS
¶43. In the present case, HAFTA provides wide discretionary power to the HAFTA
collectors.153 The various discretionary powers to the HAFTA collectors under § 63 of
HAFTA are: they can collect tax from the traders by merely visiting the premises of
their shop154, the statute empowers to assess the tax payable to the best of his
judgement155, HAFTA collector demands for immediate payment of the tax assessed,156
and they also do not need to furnish any reason for issuing an assessment.157In reality
discretionary power is essential for the function but it should not be absolute in nature.
Absence of absolute power is an adjunct to the principle of 'non-arbitrariness' and
therefore, the presence of absolute discretionary power will violate Article 14 of the
constitution.158
¶44. In the present case, not assigning the reason for assessment under Impugned
Provision of HAFTA leads to create an absolute discretionary power to the HAFTA
collectors because they can assess the tax without taking consideration to the relevant
consideration and would encourage the mechanical exercise of power,159 which is in
itself unreasonable. Besides this, the very requirement of giving a reason is to prevent
unfairness or arbitrariness in reaching conclusions160 because reasons are the links
between the materials on which certain conclusions are based and the actual
151
Navtej Singh Johar v. Union of India (2018) 1 SCC 791 at ¶297 (India).
152
Id.
153
¶ 3, Page 1, MOOT PROPOSITION, 9thASCENT MOOT COURT COMPETITION, 2020.
154
155 th
APPENDIX, Page 4, MOOT PROPOSITION, 9 ASCENT MOOT COURT COMPETITION, 2020.
156 th
¶ 3, Page 1, MOOT PROPOSITION, 9 ASCENT MOOT COURT COMPETITION, 2020.
157 th
APPENDIX, Page 4, MOOT PROPOSITION, 9 ASCENT MOOT COURT COMPETITION, 2020.
158
Supreme Court Advocates-on-record Association and ors. v. Union of India (1993) 4 SCC 441 at ¶466
(India).
159
Baidya Nath Sarma v. CWT (1983) 11 Taxman 158 (Gau.) (India).
160
Woolcombers of India Ltd supra note 74; see also Kishan Lal v. Union of India, (1998) 97 Taxman
556 (SC) (India).

conclusions.161 But by enacting Impugned Provision of HAFTA State provides absolute

discretionary power, which does not conform to the Doctrine of Manifestly
Arbitrariness i.e. rational, informed with reason and guided by public interest.162
¶45. It is a well-established principle that Justice must not only be done but must also
be seen to be done163 but in the present matter, Impugned Provision of HAFTA is not
giving reasoned order and any order or judgment without reason on prima facie note
shows that order or judgment is not reasonable because of reasoned order. In the light
of facts and arguments stated above it is submitted that Impugned provision of the
HAFTA abhors the Doctrine of Manifestly Arbitrariness.
2.1.2 THAT THE IMPUGNED PROVISION OF HAFTA VIOLATE THE PRINCIPAL OF
NATURAL JUSTICE.
2.1.2.1 THAT REASONED ORDER IS ESSENTIAL AND IS ONE OF THE PRINCIPLES OF NATURAL
JUSTICE
¶46. It is humbly submitted before this Hon‟ble Court that “reason is the soul of the
law, and when the reason of any particular law ceases, so does the law itself”164 The
reason is the heartbeat of every order or judgment. The Supreme Court held that it is far
too well settled that authority in making an order in exercise of its quasi-judicial
function, must record reasons in support of the order it makes165 and reasoned order is
one of the principles of Natural Justice.166 Violation of Principal of Natural Justice
(hereinafter referred as PNJ) directly attracts part III of the Constitution because
reasonableness is adjunct to PNJ and the thread of reasonableness runs through the
entire part III of the Constitution.167 Not only SC but also European Convention of
Human Rights which requires, "adequate and intelligent reasons must be given for
judicial decisions"168
161
Gurdial, supra note 73 at ¶18.
162
Shayara Bano v. Union of India, (2017) 9 SCC 1 at ¶100 (India).
163
Sussex, supra note 65 ; see also Woolcombers of India Ltd supra note 74.
164
Shri Swamiji of Shri Admar Mutt etc. etc. vs. The Commissioner, Hindu Religious and Charitable
Endowments Dept. and Ors AIR 1980 SC 1 (India).
165
Siemens Engineering and Manufacturing Co. of India Ltd. vs. The Union of India, AIR 1976 SC 1785
(India); see also: Shukla, supra note 126.
166
S. N. Mukherjee supra note 72.
167
Shayara Bano supra note 162.
168
Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 115.

¶47. In Woolcombers of India Ltd. v. Woolcombers Workers’ Union169Supreme Court,

inter alia, provides three essential reasons for passing a speaking order. Firstly, prevent
unconscious unfairness or arbitrariness. Secondly, Discard irrelevant or extraneous
consideration by administrative bodies. Thirdly, helps the appellant body to scrutinize
the reasons given by the lower court, tribunal, or quasi-judicial body. The above-stated
reasons are linked to the substantive or procedural fairness which is related to the
Doctrine of Manifest arbitrariness. In the present case, the Impugned Provision of
HAFTA is not furnishing reasoned order for an assessment under § 63 of HAFTA.
Unspeaking order shows that all due consideration is not taken while arriving at the
decision. Hence, exclusion of reasoned order by the state through HAFTA violate the
PNJ and the Doctrine of Manifestly arbitrariness.
¶48. Furthermore, In Maneka Gandhi v. Union of India170 Court held that law cannot
permit any exercise of power by an executive to keep the reasons undisclosed if the
only motive for doing so is to keep the reasons away from judicial scrutiny. In the
present case, the collection of tax is not related to any preventive actions, national
security, or of necessary implication. The intention behind the enactment of Impugned
provision is to bypass the judicial scrutiny. Hence exclusion of reasoned order by the
State through HAFTA171 is manifestly arbitrary as well as the violation of PNJ.
2.2 THAT THE IMPUGNED PROVISION OF HAFTA VIOLATES THE RIGHT TO FREEDOM
OF TRADE OR PROFESSION ENSHRINED UNDER ARTICLE 19(1)(G) OF THE
CONSTITUTION OF INDIA
¶49. It is humbly submitted before this Hon‟ble Court that the Right to freedom of
trade and profession is fundamental rights172 and cannot be curtailed by any statute or
executive order except by the provision of the constitution.173 Freedom of trade and
profession is no absolute right and state can put a reasonable restriction on individual
rights by Article 19 (6) only.
169
Woolcombers of India Ltd supra note 74.
170
Maneka Gandhi v. Union of India, AIR 1978 SC 1269 at ¶ 39 (India).
171
172
173

2.2.1 THAT NOT PROVIDING REASON UNDER §63(3) OF HAFTA IMPOSE AN
UNREASONABLE RESTRICTION ON FREEDOM OF TRADE, PROFESSION
¶50. It is humbly submitted before this Hon‟ble Court that in Chintamon v. The State of
Madhya Pradesh174 case Court held that the phrase "reasonable restriction" connotes
that the limitation imposed upon a person in the enjoyment of a right should not be
arbitrary or of an excessive nature beyond what is required in the interest of the public
and strikes a proper balance between the freedom guaranteed under Article 19(1) (g)
and the social control permitted by clause (6) of Article 19. Similarly, In Anumathi
Sadhukhan v. A.K. Chatterjee,175Court held that clauses 9 and 13 of the West Bengal
Rice Mills Control Order, 1949 which authorized refusal to issue or renew a license or
suspension or cancellation of a license already issued "without assigning any reasons",
were found imposing unreasonable restrictions on the petitioner's right to trade and
business under Article 19(1)(g) and were, therefore, held unconstitutional.
¶51. In the present case, the restriction imposed by Impugned Provision of the HAFTA
is unreasonable because the HAFTA directly affecting not only their profits but also
affecting their day to day business.176 The nature of § 63 is of default assessment, so the
restriction of not providing reason for assessment177 and demanding immediate
payment of the tax178 are unreasonable. Instead of that HAFTA collectors can charge a
penalty for doing default. Any law which is arbitrary in nature then any restriction
imposed by the law cannot be reasonable179 and already submitted above that Impugned
provision of the HAFTA does comply with the Doctrine of Manifest Arbitrary. Hence,
the restriction imposed by the HAFTA is unreasonable.
2.2.1.1 THAT NOT ASSIGNING THE REASON FOR ASSESSMENT UNDER § 63 OF HAFTA DOES
NOT COMPLY WITH THE DOCTRINE OF PROPORTIONALITY.
¶52. It is humbly submitted that in Om Kumar v. Union of India180case Court accepts

the Doctrine of proportionality. Proportionality means the appropriate or least
174
Chintamon v. The State of Madhya Pradesh, (1950) SCR 759 (India); see also A K Gopalan v. State
of Madras, (1950) SCR 88 (India).
175
Anumathi Sadhukhan v. A.K. Chatterjee, A.I.R. 1951 Cal. 90, at 92 (India); see also R. Balakrishnan
v. The State Of Madras, 1951 SCC 52 (Mad)(India).
176
177
178
179
Dwarka Prasad v. State of U.P, (1954) SCR 803 (India); see also DURGA DAS BASU., INTRODUCTION
TO THE CONSTITUTION INDIA 115 ( LEXIS NEXIS, 22nded. 2007).
180
Om Kumar v. Union of India, AIR 2000 SC 3689 (India).

restrictive choice of measures has been made by the legislature or the administrator to
achieve the object of the legislation.181 In the present case, the object of the HAFTA is
to create funds for medical assistance182 but the restriction or means enacted by the
state is not providing reason183 which is not appropriate to the objective of the statute.
Hence, the Impugned provision of HAFTA does not comply with the Doctrine of
proportionality.
¶53. In the light of the above argument submitted, the restriction imposed by § 63 (3)
of the HAFTA has no proper balance or rational nexus between individual freedom
enshrined under Article 19(1)(g) and social control enshrined under Article 19(6).
Hence, the Impugned Provision is in violation of Right to freedom of trade or
profession.
2.3 THAT THE IMPUGNED PROVISION OF HAFTA ABHOR RIGHT TO
JUSTICE ENSHRINED UNDER ARTICLE 21 OF THE CONSTITUTION.
¶54. It is humbly submitted before this Hon'ble Court that giving of reasons is an
essential element of the administration of Justice.184When an administrative action
involving any deprivation of or restriction on fundamental rights is taken, the
authorities must see that justice is not only done but manifestly appears to be done as
well. This principle would demand disclosure of reasons for the decision.185 Right to
justice is an integral part of Article 21 as well as Article 14 of the Constitution.186
2.3.1 THAT THE IMPUGNED PROVISION OF HAFTA VIOLATE RIGHT TO ACCESS JUSTICE.
¶55. It is humbly submitted that access to Justice has been recognized as a valuable
right by courts in this country long before the commencement of the Constitution.187
The attempt to keep the applicants away from the Court under the guise of these rules
was an abuse of the power and warranted intervention.188 In Anita Khushwa v. Pushpa
181
Id at ¶ 28.
182
¶ 1, Page 1, MOOT PROPOSITION, 9thASCENT MOOT COURT COMPETITION, 2020
183
184
State of W.B. v. Atul Krishna Shaw, 1991 Supp (1) SCC 414 (India).
185
Maneka Gandhi supra note 170.
186
Anita Khushwa v. Pushap Sudan, AIR 2016 SC 3506 (India).
187
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, art. 8, 217 A
(III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 3 May 2020], see also
HussainaraKhatton v. State of Bihar, (1980) 1 SCC 81 (India); see also Imtiyaz Ahmed v. State of U.P,
(2012) 2 SCC 688 (India).
188
Brij Mohan Lal v. Union of India, (2012) 6 SCC 502 (India).

Sadan189 Court held that "access to justice is part and parcel of the right to life and in
all civilized societies around the globe. The right is so basic and inalienable that no
system of governance can ignore its significance, leave alone afford to deny the same to
its citizens"
¶56. It is humbly submitted that the adjudicatory mechanism must be conveniently
accessible, is one the facet of „access to justice‟190, will not be achieved if the reason is
not supported by any order/judgment because it will be difficult for the aggrieved party
to place his/her grievance effectively before the court/tribunal/court/competent
authority to grant such a relief. Similarly, In Re: Llewelyn Evans191 case Court held that
each side must have equal opportunity to prepare its case and to lay its evidence fully,
freely, and fairly, before the Court to achieve justice. This requires preparation.
¶57. In the present case, the Impugned provision of the HAFTA excludes the reasoned
/speaking order clause192 resulted in unavailability of reason to the traders of
assessment. Due to this traders are unable to prepare their case properly to seek a
remedy before a competent court or tribunal. The Impugned provision of the HAFTA
makes difficult for the aggrieved traders to conveniently accessible to the adjudicatory
mechanism. Hence, the Impugned Provision violates the right to access justice.
2.3.1.1 THAT IMPUGNED PROVISION VIOLATES RIGHT TO APPEAL OF AGGRIEVED TRADERS
¶58. In Mahabir Prasad v. State of U.P193 the Supreme Court held that when quasi-
judicial order is subject to appeal then it becomes more imperative to pass reasoned
order otherwise right to appeal becomes an "empty formality" At present every order of
courts, Tribunal, or quasi-judicial body is a subject appeal to the Supreme Court by its
special leave194, therefore it is an implied obligation on all tribunals or quasi-judicial
authorities195 to state reasons for their decisions even if a statute does not provide for a
189
Anita Khushwa supra note 186 at ¶ 26; see also Tamilnad Mercantile Bank Shareholders Welfare
Association v. S.C. Sekar and Others, (2009) 2 SCC 784 (India).
190
Id.
191
In Re: Llewelyn Evans, AIR 1926 Bom 551 (India).
192
193
Mahabir Prasad v. State of U.P, A.I.R. 1970 S.C. 1302, 1304 (India); see also State of Gujarat v.
Krishna Cinema A.I.R., 1971 S.C. 1650 at pg. 1653 (India); see also Chowgule & Co. v. Union of India,
A.I.R. 1971 S.C. 2021 (India).
194
195
Engineering Mazdoor Sabha v. Hind Cycles, A.I.R. 1963 S.C. 874 (India); see also S.N. JAIN.,
ADMINISTRATIVE TRIBUNALS IN INDIA 5-8 (1977).

right to appeal or revision before higher authorities.196 Right to appeal is one of the
facets of Article 21 of the Constitution.197In the present case, not furnishing reason by
the Impugned provision of the HAFTA198 is violating the right to appeal of traders who
were selling specified goods resulted in unavailability of reason to the traders of
assessment. Due to which traders will not be able to prepare their case for appeal.
Hence, the Impugned Provision of HAFTA violates right to access justice as well as
right to appeal of traders.
2.3.2 THAT THE PROCEDURE ESTABLISHED IN THE IMPUGNED PROVISION OF HAFTA IS
ARBITRARY IN NATURE.
¶59. It is humbly submitted that the principle of reasonableness, which legally as well
as philosophically, is an essential element of equality or non-arbitrariness
pervades, Article 14 like a brooding omnipresence and the procedure contemplated
by, Article 21 must answer the test of reasonableness to conform with, Article
14.199The procedure must be right and just and fair and not arbitrary, fanciful or
oppressive;200 otherwise, it would be no procedure at all and the requirement of, Article
21 would not be satisfied.201 The expression „procedure established by law‟202 also
includes substantive law. As already stated above that the Impugned provision is
arbitrary in nature. In the present case, not providing the reason for assessment203
hinders right to appeal of the traders because without reason traders will be unable to
access competent adjudicatory mechanism. Hence, Procedure established in Impugned
Provision is arbitrary in nature.
¶60. In the light of the above argument submitted the Impugned Provision of HAFTA
violates Article 14, 19, and 21 of the Constitution of India and hence, liable to be struck
down by this Hon'ble Supreme Court.
196
Govindrao v. State of M.P A.I.R., 1965 S.C. 1222 at 1226 (India); see also State of Punjab v.
Bakhtawar Singh, A.I.R. 1972 S.C. 2083 (India).
197
DURGA DAS BASU, supra note 179 at pg. 125.
198
199
U.P. Avas Evam Vikas Parishad & Anr v. Friends Coop. Housing SOCIETYLTD.&ANR.,AIR 1996
SC 114 (India).
200
Gopalan, supra note 174.
201
Justice K.S. Puttaswamy and Ors. v. UOI and Ors, (2017) 10 SCC 1 (India); see also Maneka Gandhi
supra note 170 ; see also M. Paul Anthony v. Bihar Gold Mines Ltd, AIR 1999 SC 1416 (India).
202
INDIA CONST. art. 21.
203

PRAYER
In light of the issues raised, arguments advances and authorities cited, may this Hon‟ble
Court be pleased to adjudge, hold, direct and declare that:
1. The Legislative Assembly of Sumimasen does not have the power to imprison a
person by an unspeaking order as the same violates the provisions of the Part III
of the Constitution of India;
2. The § 63(3) of the Humanitarian Assistance Fund Tax Act, 2020 is in flagrant
violation of part III of the constitution of India and therefore, is liable to be
struck down as unconstitutional.
AND/OR
Pass any other order/orders in the interest of justice, equity and good conscience.
And for this the petitioner shall ever pray
DATE: **
PLACE:
Sd/-
COUNSEL ON BEHALF OF PETITIONER

Petitioner A9 51 (Satyam)

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9TH ASCENT MOOT COURT COMPETITION, 2020 TEAM CODE A9-51

TEAM CODE A9-51

9TH ASCENT MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF INDIA

W.P. No. ____/2020

UMAEWAMO SHINDERU ...PETITIONER

LEGISLATIVE ASSEMBLY OF SUMIMASEN ...RESPONDENT

Civil Appeal No. ____/2020

UMAEWAMO SHINDERU ...PETITIONER

STATE OF SUMIMASEN ...RESPONDENT

- WRITTEN SUBMISSION ON BEHALF OF PEITITONER -

-MEMORIAL ON BEHALF OF PETITIONER- I|Page

INDEX OF AUTHORITIES ................................................................................................VI

LIST OF ABBREVIATION.............................................................................................. XVI

STATEMENT OF JURISDICTION ................................................................................XVIII

STATEMENT OF FACTS ............................................................................................... XIX

STATEMENT OF ISSUES ............................................................................................... XXI

SUMMARY OF ARGUMENTS ...................................................................................... XXII

ARGUMENTS ADVANCED ................................................................................................. 1

ISSUE 1: THAT, IN VIEW OF THE PROVISIONS OF PART III OF THE CONSTITUTION OF

POWER TO IMPRISON A PERSON. ................................................................................. 1

1.1.1 THAT THE PENAL POWER OF HOUSE OF COMMONS TO IMPRISON A PERSON

1.1.1.1 THAT POWER WITH HOUSE OF COMMONS HAD CEASED IMMEDIATELY

1.1.1.2 THAT THE PENAL POWER OF HOUSES OR ASSEMBLIES HAS BEEN

REVOKED ACROSS THE WORLD ........................................................................... 3

1.1.2.1 THAT THE HOUSE OF COMMONS WAS SOVEREIGN AND A SUPERIOR

1.1.3 THAT THE LEGISLATIVE ASSEMBLY CANNOT CLAIM THE POWER TO

-MEMORIAL ON BEHALF OF PETITIONER- II | P a g e

1.1.3.1 THAT IT IS CONTRARY TO INTENTION OF THE CONSTITUENT ASSEMBLY

1.1.3.2 THAT IT VIOLATES THE PRINCIPLE OF NULLAPOENA SINE LEGE ........... 5

1.1.4 THAT THE POWER TO IMPRISON A PERSON, IF EXERCISED BY A

LEGISLATIVE ASSEMBLY, VIOLATES THE DOCTRINE OF SEPARATION OF

1.1.4.1 THAT THE POWER TO IMPRISON A PERSON IS NECESSARILY A JUDICIAL

1.1.5 THAT THE POWER TO IMPRISON A PERSON, IF EXERCISED BY A

LEGISLATIVE ASSEMBLY VIOLATES ARTICLE 20(1) OF THE CONSTITUTION. .......... 7

1.1.5.1 THAT DUE TO NON ENACTMENT, IMPRISONMENT OF ANY PERSON

1.1.5.2 THAT PENALIZATION WOULD HAVE A RETROSPECTIVE EFFECT ........... 8

1.1.6 THAT THE POWER TO IMPRISON A PERSON, IF EXERCISED BY A

LEGISLATIVE ASSEMBLY, VIOLATES ARTICLE 21 OF THE CONSTITUTION. ............. 8

1.1.6.1 THAT PENAL POWERS OF ASSEMBLY VIOLATES THE PRINCIPLE OF

NEMO JUDEX IN CAUSA SUA ................................................................................ 8

1.1.6.2 THAT SUCH POWER VIOLATES THE PRINCIPLE OF FAIRNESS .................. 9

1.2 THAT, EVEN OTHERWISE, IMPRISONMENT OF A PERSON, BY LEGISLATIVE

1.2.1 THAT UNSPEAKING ORDER VIOLATES THE PRINCIPLE OF NON-

1.2.1.1 THAT UNSPEAKING ORDER DENOTES NON-APPLICATION OF MIND ...... 10

1.2.1.2 THAT UNSPEAKING ORDER AMOUNTS TO DISCRIMINATION ................ 10

-MEMORIAL ON BEHALF OF PETITIONER- III | P a g e

1.2.2 THAT UNSPEAKING PENAL ORDER VIOLATES THE PRINCIPLE OF

LEGITIMATE EXPECTATION OF THE PERSON. ........................................................ 11

1.3 THAT IMPRISONMENT OF A PERSON, BY LEGISLATIVE ASSEMBLY OF

SUMIMASEN BY AN UNSPEAKING ORDER ALSO VIOLATES ARTICLE 21 OF THE

1.3.1 THAT UNSPEAKING ORDER VIOLATES THE PRINCIPLE OF FAIR PROCEDURE

1.3.1.1 THAT IT VIOLATES THE DOCTRINE OF FAIRNESS ................................. 13

1.3.1.2 THAT IT CAUSES PREJUDICE TO THE PERSON IMPRISONED .................. 14

ISSUE 2: THAT THE PROVISION OF § 63(3) OF THE HUMANITARIAN ASSISTANCE

FUND TAX ACT, 2020 IS IN FLAGRANT VIOLATION OF PART III OF THE

CONSTITUTION OF INDIA AND LIABLE TO BE STRUCK DOWN AS UNCONSTITUTIONAL.

2.1 THAT THE IMPUGNED PROVISION OF HAFTA ABHOR THE PRINCIPLE OF

EQUALITY ENSHRINED UNDER ARTICLE 14 OF THE CONSTITUTION OF INDIA. .......... 16

2.1.1 THAT THE IMPUGNED PROVISION OF HAFTA ABHORS THE DOCTRINE OF

2.1.1.1 THAT NOT FURNISHING REASON UNDER IMPUGNED POWER RESULTED

IN ABSOLUTE DISCRETIONARY POWER TO HAFTA COLLECTORS ...................... 17

2.1.2 THAT THE IMPUGNED PROVISION OF HAFTA VIOLATE THE PRINCIPAL OF

2.1.2.1 THAT REASONED ORDER IS ESSENTIAL AND IS ONE OF THE PRINCIPLES