Madhusudan Law University, Cuttack Internal Assignment

ANKITA DAS
ROLL NO - 4510121015

IN THE HON’BLE SUPREME COURT OF INDUS

IN THE MATTER OF

W.P.NO……………..OF2023
MR. ARJUNA ….PETITIONER 1

&

MR.YUDHISTIR …PETITIONER 2

VRS.
FEDERAL GOVERNMENT OFINDUS …..RESPONDENT1

NCT OF INDUS ….RESPONDENT2

AND

CIVIL RIGHTS SOCIETY(NGO) ….PETITIONER 3

VRS.

NCT OF INDUS …..RESPONDENT3

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

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 Madhusudan Law University, Cuttack Internal Assignment

TABLE OF CONTENTS

INDEX PAGE NO

1. INDEX OF AUTHORITIES :

2. STATEMENT OF JURISDICTION :

3. STATEMENT OF FACTS :

4. STATEMENT OF ISSUES :

5. SUMMARY OF ARGUMENT :

6. ARGUMENTS ADVANCED :

7. PRAYER :

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INDEX OF AUTHORITIES

______________________________ABBREAVIATIONS_____________________________

1. AIR-All India Reporter

2. Govt-Government
3. HC-High Court
4. Hon’ble-Honorable
5. Sec-Section
6. SC-Supreme Court

TABLE OF CASES
1. Kilbourn vs Thompson
2. MSM Sharma vs Sri Krishna Sinha
3. Indian Express Newspapers (Bombay) Ltd Vs Union of India
4. K.S Puttaswamy vs Union of India
5. Union of India vs Association for Democratic Reforms
6. Khihoto Hollahan vs Zachillhu and Ors
7. Mohinder Singh Gill vs Chief election commissioner
8. Raja Ram Pal v. Hon'ble Speaker, Lok Sabha.
9. Vijayakant v. Tamil Nadu Legislative Assembly
10. Keshavananda Bharati vs State of Kerala
11. Bacchan Singh vs Swaran Singh
12. S. Rangarajan v. P. Jagjivan Ram
13. Tej Kiran Jain v. N. Sanjiva Reddy
14. Amarinder Singh v. Punjab Vidhan Sabha
15. Kedar Nath Singh vs State of Bihar
16. Vinod Dua v. Union of India
17. Geeta Mehrotra v. State of Uttar Pradesh

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BOOKS & ARTICLES

BOOKS REFERED

1. P.M. Bakshi, The Constitution of India (11th ed. Universal Law Publishing Co.
Pvt. Ltd)
2. A.R Khan, The Constitution of India (2nd ed. G.K Publications(P) Ltd)

ONLINE DATABASE

1. www.IndianKanoon.com
2. www.Manupatra.com
3. www.Casemine.com

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STATEMENT OF JURISDICTION

The petitioner has filed this writ petition under article 32 of the constitution of India for the
violation of fundamental rights
Enumerated in Part IIIof the constitution and other constitutional rights. The petitioner
maintains that violation of rights has taken place. Therefore, this hon’ble court has to entertain its
jurisdiction in this writ petition. The petitioner has filed special leave petition under article 136
of constitution of indus for special leave to appeal against the judgement of high court.

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STATEMENT OF FACTS

1. The constitution of Indus is considered and described as of the most progressive constitutions. It
guarantees fundamental right corresponding to those recognized in international human rights instruments.
2. The Parliament of Indus comprises the Lower House, Upper house and president of Indus. In January 2015
Mr. Arjuna became the Prime minister, however in year 2020 Mr. Karna by means of coalition
government sworn in as the prime minister of Indus.
3. The new government decided to investigate expenses claimed by Mr. Arjuna during his tenure as Prime
Minister (2015-2020). The investigation was based on claims for reimbursement on account of expenses
incurred by family members. The civil society and other organization seeking transparency and
accountability sought a judicial inquiry.
4. Mr. Arjuna issued a statement on his social media account. The payment of members
of parliament was created by the joint resolution of both the houses of parliament and overseen by the
public accounts committee.
5. The chairman of upper house referred the matter to the privilege committee to investigate. The matter was
referred current committee on public accounts which is headed by Mr. Arjuna citing the possible conflict
of interest referred the case to a subcommittee. The sub-committee indicted Mr. Arjuna for financial
irregularity and recommended FIR to be registered. The chairman accepted the recommendation and
ordered and FIR to be registered.
6. Mr. Arjuna challenged the decision by way of writ petition under Article 32 and also sought to impress
upon the argument that Mr. Karna in 2019 was the chairman of PAC.
7. Mr. Yudhistir a member of the Parliament in lower house belonged to same party to which Mr. Arjuna
belonged as member of lower house he prepared a speech “give me freedom”. The speech was such that
two other parliamentarians took out paint spray and scribbled “give me freedom”. By next morning
important public places and walls had writing “give me freedom”.
8. On the recommendation of ethics committee Mr. Yudhistir and other two parliamentarian were suspended
for six weeks. They challenged the decision of speaker as violative of fundamental rights and
constitutional norms.
9. CRS an NGO files a writ petition before the High court of NCT challenging the constitutionality of the
applicable act and regulate the defacement of public property and public places on the ground of violative
of the basic right enshrined under part III. The Hon’ble High Court dismissed the writ petition and opined
that it is a valid piece of legislation and FIR does not violate any liberty and constitutional rights. The
NGO has opted for SLP against the same before Supreme Court. Hence the Supreme Court has clubbed
the three petitions.

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STATEMENT OF ISSUES

ISSUE – I

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

ISSUE-II

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

ISSUE-III

Whether the Punjab Prevention of Defacement of Property Act, 1997 is constitutional or not?
Whether the registration of FIRs against unknown and members of Parliament under the Act is
legal or not?

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SUMMARY OF ARGUMENTS

ISSUE 1- Whether the power of the legislature to punish for contempt including the breach
of its privilege is essentially a judicial function or not? If yes, whether it is in tune with the
modern constitutional principle to entrust such powers with respective legislatures or not?

It is submitted that power of a Legislature to punish for contempt including the breach of its
privilege is a Judicial function. The United States Supreme Court has in the case of Kilbourn vs
Thompson has said that power to Punish for contempt was the exercise of Judicial Power of
British Parliament and not the Judicial Power.

This petition is humbly submitted that the power entrusted to Petitioner conflicts with modern
constitutional principles. It appears necessary to revisit the provisions regarding the power of
legislature to punish for contempt including privilege breaches.

ISSUE -2 Whether the action of Speaker/ Chairman of the respective Houses against Mr.
Yudhistir and Mr. Arjuna respectively is violative of constitutional rights namely
legislative privileges, freedom of speech or not?

It is submitted that Action of Speaker of the Lower House against Mr Yudhistir and decision of
Chairman of the Upper House against Mr.Arjuna is violative of Constitutional Rights of Mr
Yudhistir and Mr Arjuna.

ISSUE-3- Whether the Punjab Prevention of Defacement of Property Act, 1997 is

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

Punjab prevention of defacement of property act,1997 it is submitted as an impugned act which

restricts the freedom of expression. Criminal proceedings initiated against the petitioners is abuse
of the process of law therefore it is respectfully submitted that the FIR registered against
unknown persons and members of Parliament should be quashed.

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ARGUMENTS ADVANCED

ISSUE-1
Whether the power of the legislature to punish for contempt including the breach of its
privilege is essentially a judicial function or not? If yes, whether it is in tune with the
modern constitutional principle to entrust such powers with respective legislatures or not?

It is submitted that power of a Legislature to punish for contempt including the breach of its
privilege is a Judicial function. The United States Supreme Court has in the case of Kilbourn vs
Thompson has said that power to Punish for contempt was the exercise of Judicial Power of
British Parliament and not the Judicial Power.

This petition is humbly submitted that the power entrusted to Petitioner conflicts with modern
constitutional principles. It appears necessary to revisit the provisions regarding the power of
legislature to punish for contempt including privilege breaches.

1.1. Violates Fundamental Right to speech and expression

It is submitted that Power of a legislature to punish Non-Members for its contempt is not in
accordance with fundamental Rights conferred to the citizens by virtue of Article 19 of
Constitution of Indus.

Freedom of speech and expression is the most cherished value forming the basis of a democratic
society. The old privileges of the House of Commons had an historical context in that they were
born out of the constant tussle between the Crown and the Parliament. In such a context the right
to report proceedings of Parliament was not conceded. Permission of the House was needed even
to publish true reports.

It is submitted that there is a threat of Parliamentary Privileges being preferred over freedom of
speech in India. In the case of MSM Sharma vs Sri Krishna Sinha the Apex court held that
Article 105 and Article 194 being a special provision would triumph over Article 19(1)(a). It is
evident from the above case law that Article 19(1)(a) can be suppressed in the name of Privileges
with a very less probability of the Parliamentary decision being Judicially reviewed.

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It is pertinent to refer to the case of Indian Express Newspapers (Bombay) Ltd Vs Union of
Indian wherein it was held in today’s free world freedom of press is the heart of social and
Political Intercourse. The Press has assumed the role of public educator making formal and non-
formal education possible in a large scale.

It was held in the case of Justice (Retd.) K.S Puttaswamy vs Union of India that constitutional
doctrines should be evolved and expanded in consonance with the evolution of the society.

It is humbly submitted that People should have right to know what transpired in the parliament.
People should have a fundamental right to know what their representatives speak in the house of
Parliament. It is submitted that mere reporting of a proceedings cannot cause obstructions in the
house. By no stretch of imagination can it be said that reporting of Parliamentary Proceedings
will have undue influence on the Parliament.

1.2.Against the whole contempt of Democracy and people’s right to put forth their views in
the house.

It is submitted that the Power of the Legislature to Punish for its own contempt has been against
the whole concept of democracy and people’s right to put forth their views in the Parliament. It is
submitted that when a member of Parliament is suspended or expelled that seat remains vacant
his successor is elected. This in turn leaves the people of the constituency unrepresented in the
House.

It was held in the case of Union of India vs Association for Democratic Reforms Supreme Court
emphasized on periodic elections for efficient governance for the country and benefit of voters.

Further, in the case of Khihoto Hollahan vs Zachillhu and Ors it was held that Democracy is
part of Basic Structure of our Constitution, the rule of law. In the case of Mohinder Singh Gill vs
Chief election commissioner it was said that democracy is government by the people. It is
continual participative operation, not a catalytic, periodic exercise.

It is continual participative operation, not a catalytic, periodic exercise.

It is submitted that when the Parliamentarian is suspended or expelled from the Parliament there
would be wider ramifications and would have detrimental effect on the democracy. It is humbly

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submitted that If the Parliamentarian is using unparliamentary language inside the Parliament
and during the sitting of the Parliament he should not be expelled, instead sanction to prosecute
in the court of law him should be given. A Judicially trained mind should be entrusted with
powers to punish and not the other members of Parliament, as people will lose their medium to
raise voice inside the house of Parliament.

In the light of above stated contentions, it can be concluded that entrusting powers to the
legislature to punish for its contempt including breach of privilege is not in tune with modern
constitutional principal.

ISSUE-2

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

It is submitted that Action of Speaker of the Lower House against Mr Yudhistir and decision of
Chairman of the Upper House against Mr.Arjuna is violative of Constitutional Rights of Mr
Yudhistir and Mr Arjuna.
2.1. The Action of Speaker of Lower House and Chairman of Upper house can be
subjected to Judicial Scrutiny.
It is humbly submitted that the Action of Speaker of Lower house of ordering FIR to be
registered against Mr Arjuna for the alleged Irregularities committed in last term and the Action
of Chairman of Upper House suspending Mr.Yudhistir for Six Weeks is not immune from
Judicial Review.
It is respectfully submitted that Judicial Review is a part of Basic Structure of Constitution of
Indus.The Issue whether the Act of Speaker/Chairman of expelling the member from Parliament
can be subjected to Judicial Review was discussed in the case of Raja Ram Pal v. Hon'ble
Speaker, Lok Sabha. The Supreme Court answered in affirmative therein. In the Instant case
though Member was not expelled but just suspended, the case law mentioned above is relevant as
Suspension is lesser degree of Punishment than Expulsion.

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In the case of Vijayakant v. Tamil Nadu Legislative Assembly, it cannot dispute that the Court has
the power of judicial review to examine the action of the Assembly in suspending or expelling or
imposing any penalty on any member of the House.

2.2 The Action of the Speaker reeks with malafide and suffers from the vice of
Arbitrariness
It is humbly submitted that the Action of Speaker and Chairman against Mr Yudhistir and Mr
Arjuna respectively reeks with malafide and suffers from the vice of Arbitrariness.
Supremacy of Constitution forms a part of Basic Structure of Constitution as held in the case of
Keshavananda Bharati vs State of Kerala
2.2.1 The Action against Mr Arjuna.
It is to be noted that system for payment of members of Parliament’s allowances and expenses,
as it existed at the relevant time, was created by the joint resolution of both the houses of the
Parliament and overseen by the Public Accounts Committee It is to be noted that members use to
fill claim forms and then the Committee used to make payments. The Committee which was
headed by the then leader of Opposition and the current Prime Minister Mr Karna has not found
alleged irregularity at that point of time but instead had instituted enquiry after they came into
power. No cogent reasons have been given for the delay and it is evident from the facts above
that Action of the Chairman of the Upper house reeks with malafide.
In the case of Bacchan Singh vs Swaran Singh wherein this court inter alia held that Article 14
enacts primarily a guarantee against Arbitrariness and inhibits state’s action, whether legislative
or executive, which suffers from the vice of Arbitrariness and that Article 14 was primarily a
guarantee against arbitrariness in the state action. To prevent abuses cloaked in the guise of
Privilege from triumphing legitimate charter interests, the courts must enquire into the legitimacy
of a claim of parliamentary privilege.
It is submitted that the action against the Petitioner is driven by motives.
2.2.2 The Action against Mr Yudhistir
It is humbly submitted that the Action of Speaker against Mr Yudhistir reeks with malafide and
suffers from the vice of Arbitrariness. It is submitted that the Petitioner was only exercising his
Freedom of Speech conferred to him as a member of Parliament under Article 105 of
Constitution of Indus. It is to be noted that Speaker of the Lower House decided to institute

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enquiry based on complaints by Parliamentarians belonging to ruling party. No Parliamentarian

belonging to other party had given complaints to Speaker of Lower House.
It is evident from the above fact, that in order to muzzle free speech in the Parliament, speaker
has taken this decision
Parliamentary Privilege was introduced to prevent any undue interference in the working of the
Parliament and thereby enable the Members of the parliament to function effectively and
efficiently without unreasonable influence. Till date, Parliamentary privilege remains an
important feature in any Parliamentary Democracy. In the instant case the Petitioner was only
criticizing the action and decision of the Chairman of the Upper House of the Parliament.
A bare reading of the Constitutional provision would show that, so far as the protection and
privilege under Article 105 is concerned, sub clause (2) of Article 102 clearly states that Member
of Parliament shall not be liable to any proceedings in any court “in respect of anything said or
any vote given by him in Parliament or any committee thereof” - It is the essence of
Parliamentary system of Government that people’s representative should be free to express
themselves without fear of legal consequences. Freedom of speech not only recognizes Right to
speech but also recognizes right to hear . It is of Paramount importance in a democratic country
like India that Opposition should be able to voice their opinion inside their house, so that People
get to know about the acts of the State.
In case of S. Rangarajan v. P. Jagjivan Ram wherein it was said that The State cannot prevent
open discussion and open expression, however hateful to its policies. A democracy will not be a
democracy if dissent is not given a space.
In the case of Tej Kiran Jain v. N. Sanjiva Reddy wherein it was held that Article 105(2) though
gives immunity in respect of everything said in Parliament but subject to the limitation that it
should have been said during the sitting of parliament and during business of parliament.
In the instant case, it is respectfully submitted that the Speech “Give me Freedom” was delivered
inside the house of Parliament and during the Parliamentary Proceedings. It is submitted that
Freedom of speech is absolute and unfettered. The only substantial restriction found in the
Constitution is Article 121. It is humbly submitted that the Petitioner has not involved himself.
It is humbly submitted that Legislative privileges are supposed to be exercised in order to ensure
that legislative functions can be exercised effectively, without undue obstructions. These
Functions include Right of the members to speak and vote in the house of Parliament. In this

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respect, Privileges can be exercised to protect persons engaged as administrative employees as

well.The Important consideration for scrutinizing the exercise is whether the same was necessary
to safeguard the integrity of legislative functions.
Parliamentary democracy envisages that matters involving implementation of policies of the
Government should be discussed by the elected representatives of the people. Debate, discussion,
and persuasion are, therefore, the means and essence of the democratic process. During the
debates the Members put forward different points of view. Members belonging to the same
political party may also have, and may give expression to, differences of opinion on a matter.
2.3 The action by Upper House against Mr Arjuna cannot be defended as Legislative
functions
It is humbly submitted that the Action of the Chairman of the upper House of Ordering an FIR
against Mr. Arjuna cannot be defended as Parliamentary Privilege. Parliamentary Privilege was
introduced to prevent any undue interference in the working of the Parliament and thereby enable
the Members of the parliament to function effectively and efficiently without unreasonable
influence.
It is submitted that by no stretch of imagination can the alleged irregularity in the instant case by
Mr. Arjuna be said to interfere in the working of Parliament.
In the case of Amarinder Singh v. Punjab Vidhan Sabha -the Petitioner therein was accused of
engaging in Criminal Misconduct. A committee was constituted to investigate alleged
misconduct and the said committee indicted the Petitioner. Thereafter, the appellant was expelled
for the remaining period of his term for the alleged misconduct which was conducted in the
previous term.
In the instant case though Mr Arjuna was not expelled, he was indicted by the committee and
FIR came to be registered against him. It is humbly submitted that the alleged irregularity cannot
threaten the legislature in any manner. It has in no away affected the functioning of the
Parliament. It is inconceivable that how the alleged irregularity committed in the previous term
has affected the functioning of Parliament or diluting the integrity of the house in this term. It is
submitted that Legislature cannot encroach into judicial domain and record the guilt of the
accused. It would be safe to say that a breach of privilege by a member of the legislature can
only be established when a member's act is directly connected with or bears a proximity to his
duties, role or functions as a legislator.

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Therefore, it can be concluded that in the instant case the action of the Chairman of the Upper
House cannot be defended as legislative functions.

ISSUE-3
Whether the Punjab Prevention of Defacement of Property Act, 1997 is constitutional or
not? Whether the registration of FIRs against unknown and members of Parliament under
the Act is legal or not?
The Counsel seeks answer for the above-mentioned issue in negative.
3.1. In derogation with Article 19(1)(a) of Constitution of Indus.
It is humbly submitted that the Impugned Act is ultravires insofar as it restricts the freedom of
expression which is an explicit right under Article 19(1)(a) of Constitution of Indus.
3.2. Section 3 of Punjab Prevention of Defacement of Property Act violates Right to
expression.
It is humbly submitted that the impugned Act is not in consonance with Article 14,19 and 21 of
the Constitution of Indus as it restricts Freedom of expression.
Freedom of speech and expression is a natural right which a human being acquires on birth. It is
the only vehicle of Political Discourse so essential for Democracy. Since the inception of the
Constitution, right to freedom of speech and expression has been given paramount importance.
It is humbly submitted that Right to freedom and expression is a most cherished value forming
the basis of a democratic society. The words “freedom of speech and expression” finds place in
the association of words “Liberty of thought, expression, belief, faith and worship” which form a
part of preamble of our Constitution. 3.1.3 Act does not fall within the Ambit of Article 19(1)(a)
of Constitution of Indus. It is humbly submitted that the Impugned Act does not fall within the
ambit of reasonable restrictions stipulated under Article 19(2) of Constitution of India.
It is helpful to refer to this court’s judgement in the case of Kedar Nath Singh vs State of Bihar.
wherein Supreme Court held that a citizen has a right to say or write whatever he likes about the
Government, or its measures, by way of criticism or comment, so long as he does not incite
people to violence against the Government established by law or with the intention of creating
public disorder. Unless a law restricting freedom of speech and expression is directed solely
against the undermining of the security of the State or the overthrow of it, such law cannot fall

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within the reservation under clause (2) of Article 19, although the restrictions which it seeks to
impose may have been conceived generally in the interests of public order.
In the instant case no law-and-order situation can arouse if slogans are written on the Public
Property. The Act of writing slogans should be construed as a medium to express the
dissatisfaction. In is also pertinent to refer to the Judgment delivered by this court in the case of
Vinod Dua v. Union of India wherein the Law laid down in Kedarnath Singh vs State of Bihar
was confirmed and held that Right to Criticize Government falls within the frame of Article
19(1)(a) of Constitution of India.
It is the right to question, the right to dissent which enables an informed citizenry to scrutinize
the actions of the government. It includes right to receive information from different sources.
3.3 The FIR Lodged against Unknown Persons and members of the Parliament is illegal
It is humbly submitted that the criminal proceedings initiated against the petitioners is abuse of
the process of law and is violative of the fundamental rights guaranteed under the Constitution of
India.
It is humbly submitted that the fundamental rights guaranteed under the Constitution of India and
in particular Article 19 and 21 of the Constitution of India are non-negotiable.
All members of Parliament are conferred with certain privileges by virtue of Article 105 of
Constitution of Indus. It is humbly submitted that members of Parliament had written slogans
just to protest against the decision of Chairman of the Upper house for ordering FIR to be
registered against leader of Opposition i.e. Mr Arjuna. It is to be noted that only Two People
took spray out of their Pocket and sprayed ‘Give me freedom’. Assuming arguendo that the
Impugned Act is constitutional then also the act of the Members of Parliament is protected by
Article 105 of Constitution of Indus and the Act of Scribbling ‘Give me freedom’ is in tune with
Judgments of this Court. It is submitted that in order to constitute breach of privilege it is sine
qua non that there must be some obstructions in the Proceedings It is humbly submitted that the
act of Members of Parliament by no stretch of imagination could it be said to obstruct the
proceedings of the house. Till date, parliamentary privilege remains an important feature in any
Parliamentary Democracy.
3.4 Quashing of FIR through Writ Jurisdiction of Supreme Court
The Constitution of India guarantees direct access to its Supreme Court for its fundamental rights
through Article 32 of the Constitution of Indus

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In the case of Vinod Dua v. Union of India , wherein this honorable court by exercising its
power under Article 32 had quashed the FIR lodged against a journalist on the ground that FIR
violates his Fundamental Right of Freedom of Speech as conferred to him under Article 19(1) (a)
of Constitution of India. So therefore, it cannot be said that FIR cannot be quashed by the
Supreme Court through invoking its Writ Jurisdiction under Article 32 of Constitution of India.
The Supreme Court in Plethora of cases has held that FIR can be quashed on the ground inter alia
to
1.Prevent abuse of Process of Law (2) otherwise to secure the ends of Justice.
2.In the instant case, it is humbly submitted that since the impugned act is Ultravires no purpose
is served in continuing the Investigation.
In the case of Geeta Mehrotra v. State of Uttar Pradesh , the Honourable Supreme Court has
held that in the absence of any specific allegation in an FIR, prima facie, indicating no case
against the co-accused, the Court would have the power to quash an FIR. In the instant case since
the applicable act is unconstitutional all the FIR/s lodged against Unknown persons and
Members of Parliament should be quashed.
Therefore, it is respectfully submitted that FIR registered against Unknown persons and
Members of Parliament should be quashed

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1.Set aside the action taken against Mr. Arjuna

2.Set aside the action taken against Mr. Yudhistir

3. Declare that Punjab Defacement of property act is unconstitutional.

4.Quash FIR registered against Unknown Persons.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITONER.

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