Marathwada Mitra Mandal'S Shankarrao Chavan Law Marathwada: Joga Bhai & OTHERS ..PETITIONERS

MARATHWADA MITRA MANDAL’S SHANKARRAO CHAVAN LAW
MARATHWADA
ROLL NUMBER: 117
MARATHWADA MITRA MANDAL SHANKARRAO CHAVAN LAW COLLEGE
IN THE HON'BLE SUPREME COURT
OF ARYAVARTA AT ARYAVARTA
SPECIAL LEAVE PETITION NO. ****/2019, SPECIAL LEAVE PETITION
NO.****/2019, UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA,
1950
CASE CONCERNING IMPLEMENTATION OF UNIFORM CIVIL CODE,

CONSTITUTION OF INDIA, 1950.
IN THE CLUBBED MATTERS OF
JOGA BHAI &

OTHERS…………………………………………………………..PETITIONERS
V.
STATE OF BUNDIKHAND…………………………………………………..RESPONDENT
-MEMORIAL ON BEHALFOFPETITIONERS- i
MEMORIAL ON BEHALF OF PETITIONERS

MARATHWADA MITRA MANDAL’S SHANKARRAO CHAVAN LAW COLLEGE
TABLE OF CONTENTS
1. LIST OF ABBREVIATIONS
2
2. INDEX OF AUTHORITIES
3
3. STATEMENT OF JURISDICTION 6
4. STATEMENT OF FACTS 7
5. STATEMENT OF ISSUES 9
6. SUMMARY OF ARGUMENTS 10
7. ARGUMENT ADVANCED 15
8. PRAYER
MEMORIAL ON BEHALF OF PETITIONERS 1

LIST OF ABBREVIATIONS
& And
§ Section
MANU Manupatra
AIR All India Reporter
Anr. Another
A.P Andhra Pradesh
Govt. Government
IPC Indian Penal Code
Ltd. Limited
Ors. Others
P. Page
SCC Supreme Court Cases
SC Supreme Court
SLP Special Leave Petition
Vol. Volume
vs. Versus

INDEX OF AUTHORITIES
BOOKS:
1. D.D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA.
2. M.P JAIN INDIAN CONSTITUTIONAL LAW
3. J.N PANDEY, CONSTITUTIONAL LAW OF INDIA
4. M.P JAIN, COMMENTARY ON INDIAN CONSTITUTIONAL LAW
5. RATANLAL AND DHEERAJLAL, THE CODE OF CRIMINAL PROCEDURE
6. RATANLAL AND DHEERAJLAL, THE INDIAN PENAL CODE
7. THE CONSTITUTION OF INDIA, PROFESSIONAL’S BARE ACT
8. THE INDIAN PENAL CODE, PROFESSIONAL’S BARE ACT
WEBSITES:
9. http://www.findlaw.com
10. http://www.judis.nic.in
11. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
12. www.scconline.in
13. www.manupatra.com
14. www.cdjlawjournal.com
15. www.westlawindia.com

LIST OF CASES
Sr.No CASE NAME Page No.

1 (Arunachalam v Sethuratnam AIR 1979 SC 1284)
2 Durga Shankar Mehta v. Thakur Raghuraj Singh
and others
3 Sanwat Singh & Others vs. State of Rajasthan (1961
AIR 715, 1961 SCR (3) 120
4 Pritam Singh v. State
5 Haryana State Industrial. Vs. M/S Cork
Manufacturing Co (2007) 8 SCC 120
6 Madhu Limaye vs. the State of Maharashtra 1978

AIR 47, 1978 SCR (1) 749
7 Esher Singh v. State of A.P
8 Dalbir Kaur & Others vs. State of Punjab (1977 AIR

472, 1977 SCR (1) 280)
9 Bhagwati Developers v/s The Peerless
10 Dr. Suresh Chander v. Punit Goela
11 M.S.M. Sharma v/s Sri Krishna Sinha
12 P.V. Narasimha Rao vs. State (1998) 8 SCC(Jour)
13 Tej Kiran Jain v. N. Snjiva Reddy
14 Jatish Chandra Ghose vs. Harisadhan Mukherjee

and Others. MANU/WB/0127/1956

15 Pillalamarri vs. the District Magistrate AIR 1951

Mad 269, (1950) IIMLJ

STATEMENT OF JURISDICTION
THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE SUPREME
COURT OF INDICA, THE MEMORANDUM FOR THE APPELLANT UNDER ARTICLE 136
(SPECIAL LEAVE PETITION) OF THE CONSTITUTION OF INDIA, 1950.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONSANDARGUMETS

IN THE PRESENT CASE.

STATEMENT OF FACTS
1. Aryavarta is a federal democratic republic with Rule of Law, Independent Judiciary,

free media and vibrant civil society. The Constitutional and legal system of
Aryavarta is identical to that of India. Bundikhand is one of the largest States under
the Union of Aryavarta, having its own Legislative Assembly.
2. On 2nd January, 2019, one of the Members of the Bundikhand Legislative Assembly,
Mr. Joga Bhai was driving his car from his house to the assembly building at around
10 a.m. in the capital city of Bundikhand, Chambapuri. His car was stopped by
Police Sub-Inspector Mr. Naresh Satyavadi, who was on traffic duty, for over-
speeding. Mr. Joga Bhai was asked to pay Rs 700. Fine by the said police officer.
This was followed by an altercation between the two because of which the MLA,
Mr. Joga Bhai could not reach the assembly on time.
3. On the next day of the said incident, Mr. Joga Bhai introduced a breach of privilege
motion in the Assembly against Mr. Naresh Satyavadi for obstructing him while
going to the Assembly, abusing him and also for demanding a bribe. MLAs across
party lines supported Mr. Joga Bhai and demanded that the police officer be
suspended immediately.
4. When the discussion on the privilege motion was going on in the Assembly in the
Morning Session, Mr. Joga Bhai spotted Mr. Naresh Satyavadi in the visitors’
gallery of the House. He brought to the notice of the Speaker that Mr. Satyavadi
made an obscene gesture looking at him and 3 other MLAs sitting beside him, from
the visitors’ gallery.

5. After the proceedings of the House ended, Mr. Joga Bhai and 3 other MLAs saw
Mr. Satyavadi, who was in police uniform on security duty, at the lobby just outside
the Visitors’ Gallery. Mr. Satyavadi tried to move his right hand towards the service
revolver as he felt threatened by the sight of the 4 MLAs. Within a few seconds, the
4 concerned MLAs caught hold of the police officer and charged blows on him and
also kicked him several times until he fell unconscious. Later,
he was taken to the Hospital. Subsequently, the concerned MLAs were booked by
the police for causing grievous hurt, obstructing public servant from performing his
duty and criminal intimidation under the relevant provisions of the Aryavarta Penal
Code.
6. On 7th January, 2019, the Assembly unanimously passed a resolution and suspended
the concerned 4 MLAs from House for 1 month with immediate effect and they
asked to leave the House. The MLAs started making abusive slogans against the
said police officer in specific and the police department in general. They allegedly
referred to Mr. Satyavadi as a ‘corrupt’ and ‘drunkard’ officer. While these MLAs
were walking towards the exit gate of the Assembly, they were arrested and
handcuffed by the police within the premises of the Assembly. Later, they were
produced before the Magistrate and sent to 7 days police custody.
7. On 12th of January, 2019, Mr. Naresh Satyavadi died in the hospital. After post-
mortem on his dead body, Dr. certified that he died because of internal bleeding in
the liver. It was observed that he had been previously suffering from liver disorder
which aggravated his injuries and subsequent infection to his liver. Later, the police
charged the accused MLAs with murder of Mr. Satyavadi.

8. Subsequently, the relatives of the deceased, Mr. Satyavdi, filed police complaint for
defamation against the concerned MLAs for the defamatory statements made by
them in the Assembly on 7th January, 2019. The police subsequently charged the
MLAs for defamation under the relevant provision of the Penal Code.
9. The accused MLAs filed Special Leave Petition in the Supreme Court of Aryavarta
challenging their arrest, custody and prosecution. The matter is now posted for
preliminary hearing.

ARGUMENTS PRESENTED
-I-
WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS

MAINTAINABLE.
-II-
WHETHER APPELLANTS CAN BE SUED FOR DEFAMATION IN LIGHT OF

PROVISIONS OF PARLIAMENTARY PRIVILEGE.
-III-

WHETHER THE ARREST, DETENTION, CUSTODY & PROSECUTION OF APPELLANTS

IS LEGA

SUMMARY OF ARGUMENTS
I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE.
It is humbly submitted to this Hon’ble Court that under Article 136 of the Constitution of India,
any person, aggrieved by any order or decision of any court in India can approach the Supreme
Court through a Petition for Special Leave. The Petitioner has the locus standi to approach the
Hon’ble Supreme Court as civil appeals not covered by Article 133 can be brought to the apex
court under Article 136. Furthermore, the jurisdiction of Supreme Court can always be invoked
when a question of law of general public importance arises. Also, in case at hand the ‘substantial’
questions of law are involved. The jurisdiction conferred under Art. 136 on the SC is a corrective
one and not a restrictive one.
II. WHETHER APPELLANTS CAN BE SUED FOR DEFAMATION IN LIGHT OF

It is humbly submitted that the appellants cannot be sued for defamation in light of provisions of
parliamentary privilege. Article 105, clause (1), of Constitution of Aryavarta expressly safeguards
freedom of speech in parliament Members have freedom of speech in the House and enjoy
immunity from proceedings in any court in respect of anything said or any vote given
by them in Parliament or in any committee thereof. The immunity granted to members under article
105(2), covers anything said in Parliament even though it does not strictly pertain to the business
before the House. As stated by the Supreme Court: The article confers immunity, inter alia, in
respect of ‘anything said in Parliament’. The word

‘anything’ is of the widest import and is equivalent to ‘everything’. The only limitation arises from
the words ‘in Parliament’ which means during the sitting of Parliament and in the course of the
business of Parliament... Once it was proved that Parliament was sitting and its business was being
transacted, anything said during the course of that business would be immune from proceedings in
any court. The freedom of speech available to the members on the floor of the House is different
from that available to the citizens under Article 19(2). A law made under this article providing for
reasonable restrictions on the freedom of speech of the citizens would not circumscribe the freedom
of speech of the members within the walls of the House . Members enjoy complete protection even
though the words uttered by them in the House are malicious and false to their knowledge.
Also stated in article 194(1) of the Constitution of Aryavarta subject to the provision of this
Constitution and to the rules and standing orders regulating the procedure of the Legislature, there
shall be freedom of speech in the Legislature of every state.
Hence appellants cannot be sued for defamation in light of provisions of parliamentary privileges.
III. WHETHER THE ARREST, DETENTION, CUSTODY & PROSECUTION OF

APPELLANTS IS LEGAL
It is humbly submitted that the appellants cannot be arrest, detention, custody and prosecution of
appellants is illegal. Because according to Constitution of Aryavarta under Art 105(3) the members
of Parliament also enjoy freedom from arrest. A member can be arrested outside the four walls of
the House on criminal cases under the Preventive Detention, ESMA, NSA, POTA or any other such
Act. No arrest can be made within the precincts of the House nor a legal process, civil or criminal,
served without obtaining the permission of the Chairman, and this permission is necessary whether
the House is in session or not. Precincts of the House have been defined in the rule. It also means
that no member can be arrested within the precincts of the Parliament without the permission of the
House to which he/she belongs. When a member of the House is arrested or detained, the authority
concerned should immediately inform the speaker or the Chairman regarding the reasons for such
arrest.

ARGUMENTS ADVANCED
I. WHETHERTHESPECIALLEAVEPETITIONBROUGHTBEFORETHISCOURT
IS MAINTAINABLE OR NOT.
It is humbly submitted that the Special Leave Petition against the judgment of Humble
High Court is maintainable under Article 136 of the Constitution of India. Article 136
empowers the Supreme Court to grant in discretion 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. It is humbly submitted that
powers under Article 136 can be exercised against any kind of judgment or order which
is causing injustice to any party, and to serve the need, the power under Article 136 is
unfettered.
This SLP is maintainable as, the petitioner has locus standi to approach the Honorable
SC.
Special Leave Petitions in Aryavarta (SLP) holds a prime place in the Judiciary of India, and
has been provided as a "residual power" in the hands of Supreme Court of Aryavarta to be
exercised only in cases when any substantial question of law is involved, or gross injustice has
been done. It provides the aggrieved party a special permission to be heard in Apex
court in appeal against any judgment or order of any Court/tribunal in the territory of Aryavarta
(except military tribunal and court martial).
The Constitution of Aryavarta under Article 136 vests the Supreme Court of Aryavarta, the apex
court of the country, with a special power to grant special leave, to appeal against any judgment
or order or decree in any matter or cause, passed or made by any Court/tribunal in the territory
of Aryavarta. It is to be used in case any substantial constitutional question of law is involved, or
gross injustice has been done.

The powers given by art 136 are in the nature of special or residuary powers which are
exercisable outside the purview of the ordinary law relating to appeal, in cases where needs of
Justice demand interference by the supreme court of the land. The article is worded in the widest
term possible. It vests in the Supreme Court a plenary jurisdiction. (Arunachalam v
Sethuratnam AIR 1979 SC 1284)1
THE PETITIONER HAS LOCUS STANDI TO APPROACH THE

HONOURABLE SUPREME COURT
It is humbly submitted before this Hon’ble Supreme Court that the appellant
has LOCUS STANDI to approach the Honorable SC in the present case. Article 136 of the
Constitution is couched in the widest phraseology. This Court's jurisdiction is limited only by
its discretion. It is pertinent to note that the scope of Article 133 providing appeals to the SC in
civil matters is limited whereas Article 136 is very broad-based & confers discretion on the
court to hear “in any cause or matter”. The plenitude of power under Article 136 of the
Constitution has been authoritatively stated by the Constitution Bench in Durga Shankar
Mehta v. Thakur Raghuraj Singh and others 2, and the exercise of the said power by the
Court cannot be curtailed by the original constitutional provision or by any statutory provision.
Therefore, civil appeals may be brought to the SC under article 136 when these are not
covered by Article 133.
Sanwat Singh & Others vs. State of Rajasthan (1961 AIR 715, 1961 SCR (3) 120)3
Article 136 of the Constitution confers a wide discretionary power on this Court to entertain
appeals in suitable cases not otherwise provided for by the Constitution. It is implicit in the
reserve power that it cannot be exhaustively defined, but decided cases-, do not permit
interference unless "by disregard to the forms of legal process or some violation of the principles
of natural justice or otherwise, substantial and grave injustice has been done". Though Article
136 is couched in widest terms, the practice of this Court is not to interfere on questions of fact
except in exceptional cases when the finding is such that it shocks the conscience of the court.
1
(Arunachalam v Sethuratnam AIR 1979 SC 1284
2
Durga Shankar Mehta v. Thakur Raghuraj Singh and others,
3
Sanwat Singh & Others vs. State Of Rajasthan (1961 AIR 715, 1961 SCR (3) 120
Durga Shankar Mehta vs. Thakur Raghu raj Singh and Others (1954 AIR 520, 1955 SCR
287)4
Appellate power vested in this Court under Article 136 of the Constitution is not to be confused
with ordinary appellate power exercised by appellate courts and appellate tribunals under
specific statutes. It is a plenary power, 'exercisable outside the purview of ordinary law' to meet
the pressing demands of justice.
Pritam Singh v. State5
The appellate jurisdiction of the Supreme Court is given under articles 132 to 136.Article
132 applies both to civil and criminal cases and under it an appeal shall lie to the Supreme Court
from any judgment, decree or final order of a High Court, whether in a civil, criminal or other
proceeding, if the High Court certifies that the case involves a substantial question of law as to
the interpretation of the Constitution. Article 133 deals with the appellate jurisdiction of this
Court in civil matters only, and it has been drafted on the lines of sections 109 and 110 of the
Civil Procedure Code, 1908. Article 134 constitutes the Supreme Court as a Court of criminal
appeal in a limited class of cases only, and clearly implies that no appeal lies to it as a matter of
course or right except in cases specified therein. Article 135 merely provides that the Supreme
Court shall have jurisdiction and powers with respect to any matter to which the provisions
of article 133 or article 134 do not apply, if jurisdiction and powers in relation to that matter
were exercisable by the Federal Court immediately before the commencement of the
Constitution under any existing law. The last article, with which we are concerned is article
136 and it runs thus, " 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.
Haryana State Industrial. Vs. M/S Cork Manufacturing Co (2007) 8 SCC 1206
The jurisdiction conferred under art 136 on the Supreme Court is a corrective one and not a
restrictive one.
4
Durga Shankar Mehta vs. Thakur Raghuraj Singh and Others (1954 AIR 520, 1955 SCR 287
5
Pritam Singh v. State
6
Haryana State Industrial. Vs. M/S Cork Manufacturing Co (2007) 8 SCC 120
PRINCIPLE OF NATURAL JUSTICE:
Preamble of the constitution includes the words, ‘Justice Social, Economic and political’ liberty
of thought, belief, worship... And equality of status and of opportunity, which not only ensures
fairness in social and economic activities of the people but also acts as shield to individual’s
liberty against the arbitrary action which is the base for principles of Natural Justice.
2 (c) (i): Right to be informed of the Grounds of Arrest:
The object underlying the provision that the ground for arrest should be communicated to the
person arrested appears to be this. On knowing about the grounds of arrest, the detenu will be in
a position to make an application to the appropriate court for bail or move the High Court for a
writ of Habeas Corpus. The Supreme Court observed that Article 22 (1) embodies a rule which
has always been regarded as vital and fundamental for safeguarding personal liberty in all legal
systems where the Rule of Law prevails. Information as to the grounds of arrest provide
reasonable opportunity to prepare a case by detenu, such grounds must be precise clear and
unambiguous, if the grounds are not fully disclosed to accused than it would amount to denial of
‘fair hearing’ and results into violation of Natural Justice.
Madhu Limaye vs. the State Of Maharashtra 1978 AIR 47, 1978 SCR (1) 7497
In Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several other
persons were arrested. It was stated that the arrested persons had been merely told that the arrest
had been made “under sections which are bailable”. In the return filed by the State this assertion
had neither been controverter nor had anything been stated with reference to it. One of the
contentions raised by Madhu Limaye was that there was a violation of the mandatory provisions
of Article 22 (1) of the Constitution. The Supreme Court observed that Article 22 (1) embodies a
rule which has always been regarded as vital and fundamental for safeguarding personal liberty
in all legal systems where the Rule of Law prevails. The court further observed that the two
requirements of Clause (1) of Article 22 are meant to afford the earliest opportunity to the
arrested person to remove any mistake, misapprehension or misunderstanding in the minds of
the arresting authority and, also to know exactly what the accusation against him is so that he
7
Madhu Limaye vs. the State Of Maharashtra 1978 AIR 47, 1978 SCR (1) 749
can exercise the second right, namely of consulting a legal practitioner of his choice and to be
defended by him.
Those who feel called upon to deprive other persons of liberty in the discharge of what they
conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law.
The appellant humbly submits that such grave injustice warrants the exercise of power by the
Hon’ble Supreme Court under Article 136. Couched in the words of the eminent constitutional
law jurist, D.D. Basu, “Its Article 136limit, when it chases injustice, is the sky.” In Esher
Singh v. State of A.P.8said that when the judgment of the high court has led to serious
miscarriage of justice, the Supreme Court may not refrain from doing its duty and abstain from
interfering.
The case involves the matter of general public importance and it directly and substantially
affects the rights of the parties as the order is erroneous and prejudicial to the interest of the
petitioners. It is humbly submitted that substantial and grave injustice has been done to the rights
of the petitioner and that the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against.
That the appellant has suffered grave injustice.
It is the humble submission of the appellant that the judgment rendered by the Hon’ble High
Court inflicts grave injustice upon the appellant. The Hon’ble Supreme Court has repeatedly
held that leave will be granted where there is grave, blatant and atrocious miscarriage of justice.
Dalbir Kaur & Others vs. State of Punjab (1977 AIR 472, 1977 SCR (1) 280)9
On a careful examination of article 136 along with the preceding article, it seems clear that the
wide discretionary power with which this Court is invested under it is to be exercised sparingly
and in exceptional cases only
Generally speaking, this Court will not grant special leave, unless it is shown that exceptional
and special circumstances exist, that Substantial and grave injustice has been done and that the
8
Esher Singh v. State of A.P
9
Dalbir Kaur & Others vs. State Of Punjab (1977 AIR 472, 1977 SCR (1) 280)

case in question presents features of sufficient gravity to warrant a review of the decision
appealed against."
Analyzing this decision, two principles appear to have been clearly laid down by this Court:
(1 ) that in appeals by special leave against the concurrent findings of the Courts below, this
Court would not go into the credibility of the evidence and would interfere only when
exceptional and special circumstances exist which result in substantial
and grave injustice having been done to the accused; and (2) that even after special leave has
been granted the appellant is not free to contest all the findings of fact,' but his arguments would
be limited only to those points, even at the final hearing, which could be urged at the stage when
the special leave to appeal is asked for.
It is the humble submission before the court that the appellant has suffered grave injustice, and
the case involves the matter of general public importance and it directly and
substantially affects the rights of the parties as the order is erroneous and
prejudicial to the interest of the petitioners. It is humbly submitted that
substantial and grave injustice has been done to the rights of the petitioner. The
Apex Court in Bhagwati Developers v/s The Peerless’10 observed, “If a man has
a right he must have the means to vindicate and maintain it”. Hence, it is
humbly submitted before this court that the matters involve question of law of
general public importance and therefore, the appeal is maintainable under
article 136 of the Constitution of Aryavarta.
10
Bhagwati Developers v/s The Peerless’
II.
WHETHER APPELLANTS CAN BE SUED FOR DEFAMATION IN LIGHT OF
It is humbly submitted that the appellants cannot be sued for defamation in light of
provisions of parliamentary privilege. Every individual
Section 499 in the Indian Penal Code
Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible

representations, makes or publishes any imputation concerning any person intending to harm, or
knowing or having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1.—
It may amount to defamation to impute anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended to be hurtful to the feelings of his
family or other near relatives. Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or collection of persons as such. Explanation
3.—an imputation in the form of an alternative or expressed ironically, may amount to
defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that
imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that person in respect of his caste or of his
calling, or lowers the credit of that person, or causes it to be believed that the body of that
person is in a loathsome state, or in a state generally considered as disgraceful.
Exception:

First Exception.—Imputation of truth which public good requires to be made or published.—It

is not defamation to impute anything which is true concerning any person, if it be for the public
good that the imputation should be made or published. Whether or not it is for the public good is
a question of fact.
Second Exception.—Public conduct of public servants.—It is not defamation to express in a

good faith any opinion whatever respecting the conduct of a public servant in the discharge of
his public functions, or respecting his character, so far as his character appears in that conduct,
and no further.
Third Exception.—Conduct of any person touching any public question.—it is not defamation to
express in good faith any opinion whatever respecting the conduct of any person touching any
public question, and respecting his character, so far as his character appears in that conduct, and
no further.
Fourth Exception.—Publication of reports of proceedings of Courts.—It is not defamation to

publish substantially true report of the proceedings of a Court of Justice, or of the result of any
such proceedings.
Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others

concerned.—It is not defamation to express in good faith any opinion whatever respecting the
merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting
the conduct of any person as a party, witness or agent, in any such case, or respecting the
character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception.—Merits of public performance.—it is not defamation to express in good faith

any opinion respecting the merits of any performance which its author has submitted to the
judgment of the public, or respecting the character of the author so far as his character appears in
such performance, and no further.
Seventh Exception. — Censure passed in good faith by person having lawful authority over

another.—It is not defamation in a person having over another any authority, either conferred by
law or arising out of a lawful contract made with that other, to pass in good faith any censure on
the conduct of that other in matters to which such lawful authority relates.
Eighth Exception.—Accusation preferred in good faith to authorized person.—it is not

defamation to prefer in good faith an accusation against any person to any of those who have
lawful authority over that person with respect to the subject-matter of accusation
Ninth Exception.—Imputation made in good faith by person for protection of his or other’s
interests.—it is not defamation to make an imputation on the character of another provided that
the imputation be made in good faith for the protection of the interests of the person making it,
or of any other person, or for the public good.
Dr. Suresh Chander v. Punit Goela 11 observed that in India also unless an absolute freedom of
speech was granted to the legislators, they might be afraid to speak out their minds freely.
Therefore, legislators are fully protected even though the words they utter are malicious and
false to their knowledge. Under the Constitution of India, no member of the legislature is liable
to any proceedings in any court for anything said or any vote given by him in the Parliament or
in any of its committees.
M.S.M. Sharma v/s Sri Krishna Sinha12

It is submitted in front of honorable supreme court of India that,
Under art 19 the right of free speech is subject to reasonable restriction, for instance, the law of
libel. An ordinary person who speaks something libelous is liable to be proceeded against but a
Member of Parliament speaking in the house or in one of its committees is immune from any
attack on the grounds that his speech was libelous or defamatory. Members have to give
expressions to public grievances and raise various matters of public importance. In doing this,
members should not suffered any inhibition and they should, be able to speak out, their mind
and express their mind freely. Inside the house or committees of parliamentary, member is
absolutely free to say whatever he likes subject only to internal discipline of the house or the
committee concerned, no outside authority has any
right to interfere. Freedom of speech is absolutely necessary 49 for a member to function freely
11
Dr. Suresh Chander v. Punit Goela
12
M.S.M. Sharma v/s Sri Krishna Sinha
without any fear or favour in the committees and in the house of parliament. Unless whatever a
member says enjoys immunity from legal action, he cannot be expected to speak freely and
frankly. Therefore the constitution provides no action can be taken against a member of
Parliament in any court or before any authority other than the parliament in respect of anything
said or note given by him in the houses of Parliament or any committee thereof. It is also a
breach of privilege to institute any legal proceedings against a member in respect
of anything said by him in Parliamentary or in a committee thereof.
An Analysis of Parliamentary Privileges in India
Freedom of speech
Article105, clause (1), expressly safeguards freedom of speech in parliament. It

says: there shall be freedom of speech in parliament. Clause (2) further provides that no
member of Parliament shall 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. No
action, civil or criminal, will therefore lie against a member for defamation or the like in
respect of things said inside the parliament or its committees. The immunity is not limited
to mere spoken words; it extends to votes.
Article 105 (2) confers immunity, inter alia, in respect of anything said in
Parliament the word anything is of the widest import and is equivalent to everything. The
only limitation arises from the words in Parliament, which means during the sitting of
Parliament and in the course of business of Parliament. Once it was proved that
Parliament was sitting and its business was transacted, anything said during the course of
that business was immune from proceedings in any court. This immunity is not only
complete but it is as it should be. It is one of the essence of parliamentary system of
government that people's representative should be free to express themselves without fear
of legal expenses. What they say is only subject to the discipline of the rules of
Parliament, the good sense of the members and the control of proceedings by the speaker.
The courts have no say in the matter and should really have none.
Article 19(1) in the Constitution of India 1949

(1) All citizens shall have the right

(a) To freedom of speech and expression;
P.V. Narasimha Rao vs. State (1998) 8 SCC (Jour)13

Article 105 in the Constitution of India 1949
105. Powers, privileges, etc of the Houses of Parliament and of the members and committees
thereof
(1) Subject to the provisions of this constitution and the rules and standing orders regulating the
procedure of Parliament, there shall be freedom of speech in Parliament
(2) No Member of Parliament shall 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, and no person
shall be so liable in respect of the publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of
the members and the committees of each House, shall be such as may from time to time be
defined by Parliament by law, and, until so defined shall be those of that House and of its
members and committees immediately before the coming into force of Section 15 of the
Constitution (Forty fourth Amendment) Act 1978.
(4) The provisions of clauses ( 1 ), ( 2 ) and ( 3 ) shall apply in relation to persons who by virtue
of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a
House of Parliament or any committee thereof as they apply in relation to members of
Parliament
In order to ensure effective functioning of Parliamentary democracy, there was a felt need that a
Member of Parliament will have absolute freedom in expressing his views in the deliberations
made in the door of Assembly. The protections to be enjoyed by a Member of Parliament as
contained in Sub Article (2) of Article 105 essentially flows from the freedom of speech
guaranteed under Sub- Article (1) of Article 105.Both the Sub-articles (1) and (2) complement
each other and indicate the true content of freedom of speech and freedom to exercise the right
to vote envisaged in Article 105 of the Constitution.
13
P.V. Narasimha Rao vs. State (1998) 8 SCC (Jour)
The decision of the Supreme Court in Tej Kiran Jain v. N. Sanjiva Reddy14 , dismissing the
appeal is a happy end of an apprehended conflict of jurisdiction between Parliament and the
Supreme Court particularly when the Speaker had directed the five Members of Parliament to
ignore the notices (in fact these were notices of lodgment of petition of appeal) issued by the
Court. But it is not the final solution and it is better to examine the problem in the constitutional
perspective.
In the changed political phenomenon after the 1967 elections a tendency has grown in some
quarters which views one organ of the State as superior to the other. Every organ of the State —
the Legislature, the executive and the judiciary — has its own place and role under the
Constitution. It is wrong to presume supremacy of one over the other. In fact, it is the
Constitution which is paramount. The aspirations of the Constitution are to secure to all citizens
justice, social, economic and political; liberty of thought, expression, belief, faith and worship;
equality of status and of opportunity and fraternity, assuring the dignity of the individual and the
unity of the nation. All the organs of the State are enjoined to promote and secure these
aspirations for the people. The ultimate source and sanction of the Constitution is the public —
the people of India.
The Constitution envisages 'mutual independence' among the basic organs of the State. To
assure this mutual independence, it makes provisions which debar courts from enquiring into the
proceedings of Parliament3 of or a State Legislature 4 on the grounds of alleged irregularity of
procedure: parliamentary privileges5 and restricting discussion in the Legislature6 and in
Parliament7 in respect of judicial conduct.
The provisions dealing with parliamentary privileges and immunities are given in Articles 105
and 194 of the Constitution. Clauses (1) and (2) of these Articles deal with freedom of speech
and expression and right to vote in the Houses and Committees thereof. Clause (3) says that the
other powers, privileges and immunities of the members and of each House, "shall be those of
the House of Commons" unless defined by law. This provision has given rise to problems. If we
look at the origin and rationale of the privileges of the House of Commons in England, we find
that they are not exactly the same as in India.
Jatish Chandra Ghose vs. Harisadhan Mukherjee and Others. MANU/WB/0127/1956 15
14
Tej Kiran Jain v. N. Sanjiva Reddy
15
Jatish Chandra Ghose vs. Harisadhan Mukherjee and Others. MANU/WB/0127/1956
The complainant's case was eventually transferred for disposal to Sri B. B. Majumdar,
Magistrate, 1st Class, Midnapore before whom a preliminary objection was raised as respects
the maintainability of the proceedings against the petitioner. It was contended, inter alia, that the
petitioner being a member of the West Bengal Legislative Assembly was entitled to certain
immunities and privileges under Article 194 of the Constitution of India which constituted a bar
to the prosecution of the petitioner.
The main contention is that the petitioner being a member of the West Bengal Legislative
Assembly is entitled to certain privileges and immunities by virtue of the provisions contained in
Article 194 of the Constitution which bars the petitioner's prosecution. That Article is in these
words:
"(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating
the procedure of the Legislature, there shall be freedom of speech in the Legislature of every
State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any Court in
respect of anything said or any vote given by him in the Legislature or any committee thereof &
no person shall be Supreme Court liable in respect of the publication by or under the authority of
a House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a
State, and of the members & the committees of a House of such Legislature, shall be such as
may from time to time be defined by the Legislature by law, and, until so defined, shall be those
of the House of Commons of the Parliament of the United Kingdom, and of its members and
committees, at the commencement of this Constitution.
(4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a
House of the Legislature of a State or any committee thereof as they apply in relation to
members of that Legislature."

III. WHETHER THE ARREST, DETENTION, CUSTODY & PROSECUTION OF

APPELLANTS IS LEGAL.
PRIVILEGE DEFINATION:
A simple definition of privilege is that it is an exceptional right or exemption. In its legal sense it
means an exemption from some duty, burden, attendance or liability to which others are subject. In
Parliamentary language, however, the term applies to certain rights and immunities enjoyed by each
House of Parliament collectively, and by members of each House individually without which they
cannot discharge their functions. The object of Parliamentary privileges is to safeguard the freedom,
the authority and the dignity of Parliament. Privileges are necessary for the proper exercise of the
functions entrusted to Parliament by the Constitution. They are enjoyed by individual members,
because the House cannot perform its functions without unimpeded use of the service of its
members, and by each House collectively for the protection of its member and the vindication of its
own authority and dignity.
Main Privileges of Parliament, its Committees and Members Some of the more important privileges
of each House of Parliament and of its members and Committee are as follows: -
(i) Freedom of speech in Parliament [Article 105(1) of the Constitution];
(ii) Immunity to a member from any proceedings in any court in respect of anything said or
any vote given by him in Parliament or any Committees thereof [Article 105(2) of the
Constitution];
(iii)
(iv) Immunity to a person from proceedings of any court in respect of the publication by or
under the authority of either House of Parliament of any report, paper, votes, or
proceedings [Article 105(2) of the Constitution];
(v) Prohibition on the courts to inquire into proceedings of Parliament (Article 122 of the
Constitution);

(vi) Immunity to a person from any proceedings, civil or Criminal, in any court in respect of
the publication in a newspaper or a substantially true report of the proceedings of either
House of Parliament unless the publication is provided to have been made with malice.
This immunity is also available in relation to reports or matters broadcast by means of
wireless telegraphy (Article 361A);
(vii) Exemption of members from liability to serve as juror;
(viii) Prohibition of disclosure of the proceedings or decision of a secret sitting of the House;
(ix) Rights of the House to receive immediate information of the arrests, detention,
convictions, imprisonment and release of a member (Rules 229 and 230 of the Rules of
Procedure and Conduct of Business in Lok Sabha, Ninth edition);
(x) Prohibition of arrest and services of legal process within the precincts of the House
without obtaining the permission of the Speaker (Rules 232 and 233 of the Rules of
Procedure and Conduct of Business in Lok Sabha Ninth Edition);
Freedom from Arrest

Another privilege enjoyed by the members of Parliament is that no arrest can be made within the
precincts of the House, nor can a legal notice on corning a civil or criminal case be served on them
without the permission of the Speaker. For instance, a police officer attempted to execute a warrant
of arrest against a member of the Punjab Vidhan Sabha within the precincts of the House, without
first obtaining the leave of the House. The House held the police officer guilty of breach of
privilege and the latter had to tender an unqualified apology which the House accepted. On the
order of the District Magistrate and Superintendent of Police of Shillong, two members of the
Assam Legislative Assembly, Dulal Chandra Barua and Tarapada Bhattacharjee, were arrested on 1
April 1965 in the Assembly premises.73 According to the members, the police entered the
Speaker’s chamber and took them intocustody.A question of breach of privilege was raised in the
Assembly. The Speaker observed that the arresting of “these two honorable members inside the
Speaker’s Chamber is a breach of privilege of the House, even police entry inside the room, for
whatever reasons it may be, without permission is a gross breach of privilege of this House; and the
most unfortunate thing is that the police has tried to suppress this fact. Therefore, I am of the
opinion that on this score there is a case of gross breach of privilege of this House.
Communication to speaker of Arrest, Detention and Release of a Member

Even though the arrest of a member otherwise than on a civil process has been held not to be
included within the privilege of freedom from arrest, it has been established in England as well as
in India, that in such cases, the house concerned has a right to be informed of the fact of the arrest
and detention and the reason why the House is being deprived of the participation of a member in
its deliberations.
(A) England- in England, it has been held that a magistrate or a judge has the duty to inform the
speaker of the fact of the arrest or detention with its causes in the following cases:
(a) When the member is taken into custody to be tried by any court martial.
(b) When a member is committed to prison after arrest on a criminal charge, bail not being
granted.
(c) Upon a member’s conviction on trial. The magistrate has no duty to inform the speaker
where, a member is arrested on criminal charge was released on bail immediately after
he was produced before the magistrate. If a member is bound over under section 107 of
the criminal procedure code for keeping peace, it is not necessary for magistrate passing
the order to inform the speaker of matter since such order does not prevent member’s
concerned from attending the sittings of the house.
But no such duty arises when a person is already in prison under the sentence of a
criminal court is elected a member of parliament.
(d) When a court proceeds against a member for contempt of court.
(e) Failure of a judge or magistrate to inform the speaker in the forgoing cases constitutes a
breach of privileges.
(B) India- in India, rules have been made by the House of the People on this subject. Rules
229-31 provide:
229. When a member is arrested on a criminal charge or for a criminal offence or is
sentenced to imprisonment by a court is detained under an executive order, the committing

judge, magistrate or executive authority, as a case maybe , shall immediately intimate such
fact to the speaker indicating the reasons for the arrest, detention or conviction, as the case
maybe, as also the place of detention or imprisonment of the member in the appropriate
form set out in the third schedule.
The following points should be noted in connection with these rules.

1. The duty of the magistrate or court to inform the speaker by the letter in the prescribed
form arise in the following cases.
(A) When a member is arrested on a criminal charge or for a criminal offence.
(B) When a member is sentenced to imprisonment by a criminal court.
(C) When a member is detained under an executive order, ex. Under the law of preventive
detention.
(D) When a member is released on bail or otherwise, after conviction.
Rules 232-233 of the rules of the House of the People provide:

232. No arrest shall be made within the precincts of the House without obtaining the permission of
the speaker.
232. A legal process, civil or criminal, shall not be served within the precincts of the House without
obtaining the permission of the speaker.
As stated earlier, though the immunity of a member from arrest does not extend to arrest under
criminal law, no arrest can be made or other process under criminal law served within the precincts
of the House without the permission of its presiding officer.
A breach of this rule is an interference with the business and dignity of the House itself.
The precincts of the House would, according to common parlance, includes the buildings where the
legislature or its committees hold their sittings and also the space enclosed by its compound walls if
any. It means an includes the chamber, the lobbies, the galleries and such other places as the
speaker may from time to time specify.

Pillalamarri vs. the District Magistrate AIR 1951 Mad 269, (1950) IIMLJ 20716
The chief ground on which we are asked to release the petitioner is that as a member of the Madras
Legislative Assembly he enjoys the privileges, rights and immunities which a member of the House
of Commons of the United Kingdom enjoys in accordance with the practice and procedure
obtaining in the Parliament at Westminster. That it is so is evident from article. 194 of the
Constitution which in Sub-clause 3 lays down that "The powers, privileges and immunities of a
House of the Legislature of a State, and of the members and the committees of a House of such
Legislature, shall be such as may from time to time be defined by the Legislature by law, and until
so defined shall be those of the House of Commons of the Parliament of the United Kingdom and of
its members and Committees at the commencement of this Constitution."
It is conceded that the legislature has, by law not defined or laid down, anything with regard to the
powers, privileges and immunities of a member of the Legislative assembly until now and that
being so, according to the provisions of Sub-clause 3 we have to take it that at present every
member of the legislature of the Madras State has all the powers, privileges and immunities which a
member of the House of Commons all Westminster in entitled to. It is, therefore incumbent upon as
to find out what exactly are the powers, privileges and immunities of a Member of Parliament on
26-1-1950 and that would resolve the question at issue in this petition.
16
Pillalamarri vs. the District Magistrate AIR 1951 Mad 269, (1950) IIMLJ 207
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities
cited, it is humbly requested that this Hon’ble Court may be pleased to adjudge and
declare:
1. That the SLP is maintainable under Article 136 of the Constitution of India,1950.
2. That the appellants cannot be sued for the defamation as given parliamentary
privileges under article 105 and 194 of the constitution of India.
3. That the arrest of the appellants was illegal as it was a breach of privilege.
And pass any such order, writ or direction as the Honorable Court deems fit and proper,
for this the Appellants shall duty bound.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
COUNSEL FOR THE PETITIONERS

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MARATHWADA MITRA MANDAL’S SHANKARRAO CHAVAN LAW

ROLL NUMBER: 117

MARATHWADA MITRA MANDAL SHANKARRAO CHAVAN LAW COLLEGE

IN THE HON'BLE SUPREME COURT

SPECIAL LEAVE PETITION NO. ****/2019, SPECIAL LEAVE PETITION

NO.****/2019, UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA,

CASE CONCERNING IMPLEMENTATION OF UNIFORM CIVIL CODE,

IN THE CLUBBED MATTERS OF

JOGA BHAI &

MEMORIAL ON BEHALF OF PETITIONERS

MEMORIAL ON BEHALF OF PETITIONERS 1

AIR All India Reporter

A.P Andhra Pradesh

IPC Indian Penal Code

SCC Supreme Court Cases

SLP Special Leave Petition

MEMORIAL ON BEHALF OF PETITIONERS 2

MEMORIAL ON BEHALF OF PETITIONERS 3

Sr.No CASE NAME Page No.

6 Madhu Limaye vs. the State of Maharashtra 1978

8 Dalbir Kaur & Others vs. State of Punjab (1977 AIR

9 Bhagwati Developers v/s The Peerless

10 Dr. Suresh Chander v. Punit Goela

11 M.S.M. Sharma v/s Sri Krishna Sinha

12 P.V. Narasimha Rao vs. State (1998) 8 SCC(Jour)

13 Tej Kiran Jain v. N. Snjiva Reddy

14 Jatish Chandra Ghose vs. Harisadhan Mukherjee

MEMORIAL ON BEHALF OF PETITIONERS 4

15 Pillalamarri vs. the District Magistrate AIR 1951

MEMORIAL ON BEHALF OF PETITIONERS 5

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONSANDARGUMETS

MEMORIAL ON BEHALF OF PETITIONERS 6

1. Aryavarta is a federal democratic republic with Rule of Law, Independent Judiciary,

MEMORIAL ON BEHALF OF PETITIONERS 7

MEMORIAL ON BEHALF OF PETITIONERS 8

MEMORIAL ON BEHALF OF PETITIONERS 9

WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT IS

WHETHER APPELLANTS CAN BE SUED FOR DEFAMATION IN LIGHT OF

MEMORIAL ON BEHALF OF PETITIONERS 10

WHETHER THE ARREST, DETENTION, CUSTODY & PROSECUTION OF APPELLANTS

MEMORIAL ON BEHALF OF PETITIONERS 11

I. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

II. WHETHER APPELLANTS CAN BE SUED FOR DEFAMATION IN LIGHT OF

MEMORIAL ON BEHALF OF PETITIONERS 12

III. WHETHER THE ARREST, DETENTION, CUSTODY & PROSECUTION OF

MEMORIAL ON BEHALF OF PETITIONERS 13

MEMORIAL ON BEHALF OF PETITIONERS 14

THE PETITIONER HAS LOCUS STANDI TO APPROACH THE

Pritam Singh v. State5

PRINCIPLE OF NATURAL JUSTICE:

2 (c) (i): Right to be informed of the Grounds of Arrest:

That the appellant has suffered grave injustice.

MEMORIAL ON BEHALF OF PETITIONERS 18

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible

MEMORIAL ON BEHALF OF PETITIONERS 20

First Exception.—Imputation of truth which public good requires to be made or published.—It

Second Exception.—Public conduct of public servants.—It is not defamation to express in a