APPELLANT SIDES

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the appellant in the case concerning SHAM PRASAD
V. STATE OF NYASTHAN
It is humbly submitted before the Hon’ble Supreme Court that the writ petition is maintainable. It
is humbly submitted before the Court that the instant case is maintainable. As the Hon’ble Court
has already listed them for arguments, the issue of sustainability and maintainability should not
ordinarily arise. However, the petitioners respectfully submit the following to reaffirm the
maintainability of the cases before the Court.

The petitioner has approached the Supreme Court under Art. 32 read with Art. 13(2) of the
Constitution of India. Art. 13(2) declares that the ‘State shall not make any law’ which takes
away or abridges the Fundamental Rights. Thus, the power of the legislature is limited by
Fundamental Rights of the citizensas held in Brij Mohan Lal v. Union of India, (2012) 6 SCC
571.
Moreover, the petitioner need not establish either that he has no other adequate remedy or that
he has exhausted all other remedies provided by law, as Art. 32 is a Fundamental Right in itself
and therefore existence of an alternate remedy is no bar to the Supreme Court entertaining a
petition under it Daryao v. State of Uttar Pradesh. Therefore, Articles 32 and 13(2) read
together, along with the fact that the said Rules are violative of Fundamental Rights basic feature
of the Constitution make the case maintainable.Also, The right to approach this Hon’ble Court in
case of violation or threat to Fundamental Rights is itself a Fundamental Right enshrined in Art.
321 and is not merely a discretionary power of the Court. It is an absolute right which was held in
Prem Chand Garg v. Excise Commissioner. Thus the writ should be maintainable.

With these humble submissions, the counsel would like to call Mr__ , to deal with the other
contentions.

Much obliged your lordship.

1
Kochhuni v. State of Maharashtra, AIR 1959 SC 725

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2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue

That the nayasthan state legislative assembly (powers, privileges and immunities) act, 2003 is
arbitrary and unconstitutional.

A law made by the Parliament can be struck down by courts on two grounds and two grounds
alone: (1) lack of legislative competence; and (2) violation of fundamental rights guaranteed
under Part-III of the Constitution or any other constitutional provision

In this case,

Section 3 stated that the powers, privileges and immunities of the Legislative Assembly of
Nayasthan shall be those of House of Commons of the Parliament of UK and of its members on
the commencement of this Act.

Section 4 reads the state assembly of Nayasthan shall be the sole judge to determine all questions
involving breach of privilege by the Assembly.

Section 5 reads that no court shall have jurisdiction to entertain and adjudicate upon any
questions relating to powers, privileges and immunities of the legislative assembly of Nayasthan,
including question relating to breach of privilege of the Assembly and contempt of Assembly.

First of all, regarding the same power as house of lords(UK)- All the powers conferred by the
House of Commons cannot be automatically followed in state legislature. “One reason for this is
that Indian legislatures are controlled by a written constitution and hence they do not have an
absolute power of self-composition, unlike the British House of Commons which is controlled by
an unwritten constitution.” As held in Amarinder Singh v Punjab Vidhan Sabha (2010) 6 SCC 113.

Another reason is that some of the English precedents involving the exercise of privileges were
clear instances of over breadth and arbitrary in nature.2 Even though the exercise of legislative
privileges and the concomitant power to punish for contempt have not been codified, they cannot
be construed as unlimited powers since that could lead to their indiscriminate and
disproportionate use. House of Commons has an undoubted power of expelling a Member, and
the law does not attempt to define the cases in which it may be used.

2
Amarinder Singh v Special Committee, Punjab Vidhan Sabha (2010) 6 SCC 113.

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For the next issue, I would like to call my co-counsel ___.

Much obliged your lordship.

3
3RD SPEAKER- Your lordship, the counsel is here to deal with the contentions that nayasthan
state legislative assembly (powers, privileges and immunities) act, 2003 is violative of natural
justice.

“Section 4 reads the state assembly of Nayasthan shall be the sole judge to determine all
questions involving breach of privilege by the Assembly.”

There are 3 principles of natural justice-

The first one is “Hearing rule” which states that the person or party who is affected by the
decision made by the panel of expert members should be given a fair opportunity to express his
point of view to defend himself.

Secondly, “Bias rule” generally expresses that panel of expert should be biased free while taking
the decision. The decision should be given in a free and fair manner which can fulfil the rule of
natural justice.

And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court
given by the Presiding authorities with a valid and reasonable ground.

In this case, bias rule is being infringed upon. The Assembly shall be a judge of its own
causes (as the amendment says) is arbitrary.

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act
which leads to unfair activity whether in a conscious or unconscious stage in relation to the party
or a particular case. Therefore, the necessity of this rule is to make the judge impartial and given
judgement on the basis of evidence recorded as per the case.

The Court has recently reiterated it in Uma Nath Pandey & Ors vs State Of U.P.& Anr that
no man ought to be a judge in his own case, because he cannot act as Judge and at the same time
be a party'.

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4TH SPEAKER- The contention that the ounsel has to put forward is that the ninth schedule of
the constitution is not devoid of judicial review.

It was held in S.S.K. Niyami v. Union of India that if a law abrogates or abridges a fundamental
right (by amendment or by insertion in the 9th Schedule), the Court may exercise its judicial
review power and examine it on the touchstone of the basic structure doctrine as reflected in
Article 21 read with Articles 14 and 9 by application of the "rights" and "essence of the right"
tests. Judicial review is a part and parcel of the principle of Constitutionalism. The principle of
Constitutionalism is an antithesis of arbitrary rule and it imposes limitations on the exercise of
governmental power in order to avoid usurpation or its tyrannous applications. Any law enacted
either by the Parliament or State legislature must always confer an opportunity to the judiciary to
test the laws, whether such laws are against to the common right and reason.2 If such laws are
not based on any reason and irrational, they shall be declared void. In India suo motto power is
not conferred on the judiciary to question the constitutional validity of laws passed by the
legislatures. Such being the case, there should not be any scope under Constitution for excluding
the power of judicial review even for special laws. Otherwise it affects the principles of
Constitutionalism which exist in Constitution of India and there may be chance to abuse the
same by so called Parliamentarians. In addition to that the Parliament occupies the supremacy,
which Constitution is having.

In 2007,through I. R. Coelho v. State of Tamil Nadu , the court propagated that ninth schedule
could go through judicial review. The judgement in this case put an end to the politico-legal
controversy by holding the Parliament’s amending power subject to Judicial Review in line with
Kesavananda Bharti’s decision that the violation of Doctrine of Basic Structure will not be
considered. The Nine-Judge bench headed by Y.K. Sabharwal, C.J.I., after a reference being
made to it by a Five-judge Bench has unanimously pronounced upon the constitutional validity
of the Ninth Schedule laws that, in the post-1973 era, they are open to attack for causing the
infraction which affects the basic structure of the Constitution. Such laws will not get the
protection of the Ninth Schedule for escaping the judicial scrutiny and are open to challenge in
the courts of law. In the light of aforesaid developments, the main argument of the petitioners is
that post-1973, it is impermissible to immunize Ninth Schedule laws from judicial review by
making Part III inapplicable to such laws. Such a course, it is contended, is incompatible with the

5
doctrine of basic structure. The existence of power to confer absolute immunity is not compatible
with the implied limitation upon the power of amendment in Art.368, is the thrust of the
contention. The contention precedes that since fundamental rights form a part of basic structure
and thus laws inserted into Ninth Schedule when tested on the ground of basic structures shall
have to be examined on the Fundamental Rights test.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be maintainable, that
the nayasthan state legislative assembly (powers, privileges and immunities) act, 2003 is
arbitrary and unconstitutional and that the ninth schedule of the constitution is not devoid of
judicial review. Also, the Court may pass any order, writ, direction that it deem fit in the interest
of justice, equity and good faith. Thank you, your lordship.

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RESPONDENT SIDE

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the respondent in the case concerning SHAM
PRASAD V .STATE OF NYASTHAN.

It is contended that the writ is not maintainable. Jurisdiction of the Supreme Court under Art. 32
can be invoked only when Fundamental Right has been infringed. No question other than
relating to a Fundamental Right will be determined in a proceeding under Art. 32. Thus, where
there is no infringement of Fundamental Right or scope for enforcement of any Fundamental
Right, the writ petition is not maintainable on the fragile ground. In the instant matter, no
Fundamental Right has been infringed. Moreover, infringement of Fundamental Right cannot be
founded on remote of speculative grounds. There is no such action which infringes or poses a
threat to Fundamental Right of the citizens. Mere apprehension that the petitioner would be
deprived of his Fundamental Right is not enough to invoke the jurisdiction of the Court under
Art. 32.3 Therefore, it is humbly submitted before the Hon’ble Court that the present case is not
maintainable and it should be dismissed.

Moreover, in order to invoke the jurisdiction under Art. 32 of the Constitution to approach this
Court directly, it has to be shown by the petitioner as to why the High Court has not been
approached, could not be approached or it is futile to approach the High Court. Unless
satisfactory reasons are indicated in this regard, filing of petition in such matters directly under
Art. 32 of the Constitution is to be discouraged as held in Union of India v. Paul Manickam, Hence,
it is submitted that the petition submitted before this Hon’ble Court is not maintainable and thus
should be rejected.

3
Magan Bhai v. Union of India, (1970) 3 SCC 400.

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With these humble submissions, the counsel would like to call Mr__ , to deal with the other
contentions. Much obliged your lordship.

2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue

the nayasthan state legislative assembly (powers, privileges and immunities) act, 2003 is neither
arbitrary nor unconstitutional.

It is humbly pleaded before the Court of Law that the State legislature was justified in making of
such Rule as the law qualifies being reasonable as it falls under the ambit of one of the
restrictions of freedom of speech and expression. It is observed by the Hon’ble Justice Patanjali
Shastri that, “Man as a rational being desires to do many things, but in a civil society his desires
have to be controlled, regulated....”

THAT THE RULES OF PROCEDURE FALLS UNDER THE EXCEPTION OF PUBLIC

ORDER. It is humbly pleaded before the Court of Law that the restrictions imposed by means of
Rules of procedure of the House falls under the ambit of one of the restrictions present under Art.
19(2) i.e., public order. The apex Court has defined ‘public order’ as “the state of tranquility
which prevails among the members of society as a result of internal regulation, enforced by the
government which they have established.” As held in Ramesh Thapar v. State of Madras, AIR 1950
SC 124.

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3RD SPEAKER- Your lordship, the counsel is here to deal with the final contention. It is humbly
submitted before the Hon’ble Supeme Court that the ninth schedule is devoid of judicial review.

In Waman Rao v. Union of India, the Supreme Court ruled by majority that all laws and
regulation included in the Ninth Schedule could not be challenged on the ground of being
inconsistent with a Fundamental Rights.
It was also contended that the Constitutional device for retrospective validation of laws was well
known and it is legally permissible to pass laws to remove the basis of the decisions of the Court
and consequently, nullify the effect of the decision. It was submitted that Art.31-B and the
amendments by which legislations are added to the Ninth Schedule form such a device, cure the
defect of legislation. Further the respondents contended that the point in issue is covered by the
majority judgment in Kesavananda Bharti’s case.

It is further contended that the test for judicially reviewing the Ninth Schedule laws cannot be on
the basis of mere infringement of the rights guaranteed under Part III of the Constitution. The
correct test is whether such laws damage or destroy that part of Fundamental Rights which form
part of the basic structure. Thus, it is contended that judicial review of Ninth Schedule laws is
not completely barred. The only area where such laws get immunity is from the infraction of
rights guaranteed under Part III of the Constitution.

Constitutional validity of laws placed in the Ninth Schedule through different amendments have
been questioned from Shankari Prasad case to Kesavananda Bharathi and from Forty-fourth
Amendment to I.R.Coelho case. The Ninth Schedule has the effect of nullifying the judicial
pronouncement prospectively as well as retrospectively. It is agreed by all, that the legislature
can nullify the effect of judicial decisions by changing the basis of decision and giving it
retrospective effect. However, it is not open for the legislature to directly overrule a decision
pronounced by the competent Court as held in Tirath Ram Rajendra Nath v. State of U.P.
In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be non maintainable,
that the nayasthan state legislative assembly (powers, privileges and immunities) act, 2003 is not
arbitrary and very well constitutional and that the ninth schedule of the constitution is devoid of
judicial review. Also, the Court may pass any order, writ, direction that it deem fit in the interest
of justice, equity and good faith. Thank you, your lordship.