MEMORIAL FILED ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
ABBREVIATIONS……………………………………………………………… III
INDEX OF AUTHORITIES ……………………………………………………. IV
STATEMENT OF JURISDICTION……………………………………………. VI
STATEMENT OF FACTS……………………………………………………..... VII
ISSUES RAISED………………………………………………………………… IX
SUMMARY OF ARHUMENTS ………………………………………………... X
ARGUMENTS ADVANCED…………………………………...……………….. XI
Whether the public interest litigation is maintainable or not
Whether the Notification issued on 8 th november violates the fundamental rights guaranteed by
the constitution
PRAYER
...................................................................................... XV
ABBREVIATIONS USED
Sec.
: Section
AIR
: All India Report
Art.
: Article
Hon’ble
: Honorable
Ltd.
: Limited
SC
: Supreme Court
SCC
: Supreme Court Cases
Cr.P.C.
:
Criminal Procedure Code
C.P.C.
: Civil Procedure Code
BCI
: Bar Council of India
u/s
: under section
r/w
: read with
Yrs.
: Years
v. / vs.
: Versus
Cr.L.J.
: Criminal Law Journal
&
: and
Pg.
: Page
Ors.
: Others
Anr.
: Another
Edn.
: Edition
INDEX OF AUTHORITIES
Statues:
· The Constitution of India
· The Reserve Bank Of India Act, 1934
· Employees’ Compensation Act, 1923
Cases:
Bodhisattwa Gautam v. Subbra Chakraborty AIR 1996 SC 722
A.B.S.K Sangh (Rly.) v. union of India AIR 1981 SC 298
Sukhdev and Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331, 95.
R. Gandhi V.Union of India, 1999, 8 SCC 106(Para 13)
Judges Transfer Case S.P. Gupta vs President Of India And Ors. on 30 December, 1981
M.C. Mehta and Anr. v. Union of India and Ors. AIR 1987 SC 1086
Indra Sawhney v. Union Of India AIR 1993 SC 477
Shri Sita Ram Sugar Co. Ltd V. Union Of India, AIR 1990 SC 1277,1297
Pathak vs. Union of India(1978) 2 SCC 50
. State of Punjab v. M.S. Chawla
. Consumer Education and Research Centre v. Union of India
. D.C.WADHWA V. STATE OF BIHAR
AIR 1987 SC 579
. Daryo v. state of U.P. AIR 1961 SC 1457
. Lucknow development Authority v. M.K. Gupta (1994) 1 SCC 243
. N.Nagendra Rao v. State of A.P. AIR 1994 SC 2663
. State of Rajasthan v. Vidyawati AIR 1962 SC 933
. Vincent v Union of India 1987 AIR 990 : 1987 SCR (2) 468
Books:
Dr.Jai Jai Ram Upadhyay, The Constitution of India, Central Law Agency, 2015
The Reserve Bank of India Act, 1934 , Universal Law Publishing Co.Pvt.Ltd.
Employees’ Compensation Act, 1923, Eastern Book Company, 33 rd Edt.2014.
Dr. J.N. Pandey,Constitutional Law Of India,52 nd Edition ,Central Law Agency,2015
Websites referred :
www.manupatra.co.in
www.scconline.com
www.indiankanoon.org
https://en.wikipedia.org
The Petitioner , association of aryans
have filed a Petition through the Public Interest Litigation under article 32 of constitution of arya
land before
Hon’ble Supreme court against The Notification Of the DEPARTMENT OF ECONOMIC
AFFAIRS ( DEA ) OF FINANCE MINISTRY OF ARYA LAND
Issued on 8 TH NOVEMBER 2016.
The present memorandum sets forth the facts, contentions and the arguments.
STATEMENT OF FACTS
In order to contain the rising incidence of fake notes and black money, the scheme to withdraw
has been introduced on November 8, 2016. Prime Minister of Arya land announced in a
broadcast to the nation that “The legal tender character of the existing bank notes in
denominations of Rs 500 and Rs 1000 issued by the Aryan Reserve bank till November 8, 2016
stands withdrawn and that Rs 500 and Rs 1,000 currency notes would no longer be recognized
legally as currency’’. He noted that the move complements the country’s Swachh Arya Abhiyan
(Clean Aryan campaign). The aim behind the government’s action was to combat tax cheating,
counterfeiting and corruption. The PM said that eliminating large denominations makes it harder
to hide large amounts of cash.
In consequence thereof these Bank Notes cannot be used for transacting business and/or store
of value for future usage. The Specified Bank Notes could be exchanged for value at any of the
19 offices of the Aryan Reserve bank or at any of the bank branches of commercial banks/
Regional Rural Banks/ Co-operative banks or at any Head Post Office or Sub-Post Office.
Initially, the move received support from people, several bankers as well as from some
international commentators but gradually as the cash shortages grew in the weeks following the
move, large serpentine queues outside banks started appearing .
To counter that, the government, announced that customers who exchange their old notes for
new ones at banks, will be inked, to ensure persons don't exchange money more than once a
day. But the menace did not end here and so the government again came up
With a more surprising but rather a shocking move to issue the bank notes of Rs Twenty
thousand denomination which was a complete U turn to the PM’s address to the nation where he
said that eliminating large denominations makes it harder to hide large amounts of cash .
The sudden nature of the announcement and the prolonged cash shortages in the weeks that
followed created significant disruption throughout the economy, threatening economic output.
The move was heavily criticized as poorly planned and unfair, and was met with protests,
litigation, and strikes.
The move was heavily criticised by prominent economists and by world media leading to debates
in both houses of Parliament and triggering organised protests against the government in several
places across India. The move is considered to have reduced the country's GDP and industrial
production.
In the days following the demonetisation, the country faced severe cash shortages with severe
detrimental effects across the economy. People seeking to exchange their bank notes had to
stand in lengthy queues, and several deaths were linked to the inconveniences caused due to
the rush to exchange cash.
Aggrieved by the decision of the government and calling it a ‘ Tughlaki Farman’ , an Association
of Aryans (AOA) filed the PIL before the Apex court of Arya land to quash the November 8
notification of the Department of Economic Affairs (DEA) of Finance Ministry of Arya land .
ISSUES RAISED
1) Whether the public interest litigation is maintainable or not
2) Whether the Notification issued on 8 th november violates the fundamental rights guaranteed
by the constitution
SUMMARY OF ARGUMENTS
Whether the public interest litigation is maintainable or not
It is most humbly submitted before the Hon’ble Court that present PIL is maintainable against
government of Arya since AOA (association of Aryan) has filed a PIL u/a 32 of the Constitution. It
is further submitted that since there has been gross violation of Article 19(1)(g) and 21 of the
Constitution, the PIL is maintainable, and on account of the same relief is sought.
In the instant case, the grounds stated by the petitioner stating casualties and the number of
deaths resulted due to standing in long queues to exchange their bank notes is an infringement
on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya
Land. Furthermore the denial of transaction to the petitioner in exchanging currency results in the
violation of Article 19(1)(g).
Thus it is humbly submitted that the Public Interest Litigation filed by AOA is maintainable
Whether the Notification issued on 8 th november violates the fundamental rights guaranteed by
the constitution
It is most humbly submitted that the notification issued on 8 th November infringes the
fundamental rights guaranteed by the Constitution as it violates Article 19(1)(g) and 21.
In the instant case, the grounds stated by the petitioner stating casualties and the number of
deaths resulted due to standing in long queues to exchange their bank notes is an infringement
on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya
Land. Furthermore the denial of transaction which has resulted to the petitioner in exchanging
currency results in the violation of Article 19(1)(g).
ARGUMENTS ADVANCED
I. Whether the public interest litigation is maintainable or not
[1.1] AOA has filed a PIL u/a 32 of the constitution
It is most humbly submitted before the Hon’ble Court that present PIL is maintainable against
government of Arya since AOA (association of Aryan) has filed a PIL u/a 32 of the Constitution. It
is further submitted that since there has been gross violation of Article 19(1)(g) and 21 of the
Constitution, the PIL is maintainable, and on account of the same relief is sought.
Public Interest is something in which the public, the community at large has something pecuniary
interest, or some interest by which their legal rights or liabilities are affected. It does not mean
anything so narrow as mere curiosity, or as the interest of the particular localities, which may be
affected by the matters in question. Interest shared by the citizens generally in affair of local,
State or national government...”
It is to be noted that the locus standi of petition filed u/a 32 writ of Habeas Corpus necessarily be
proved, whereas the locus standi of the PIL does not necessarily be proved.
The Supreme Court has entertained a number of petitions under Art. 32 complaining of
infractions of Fundamental Rights of individuals, or of weak or oppressed groups who are unable
themselves to take the initiative to vindicate their own rights. The Supreme Court has ruled that
to exercise its jurisdiction under Art. 32, it is not necessary that the affected personally approach
the court.
The Court can itself take cognisance of the matter and proceed suo moto or on a petition of any
public spirited of any public spirited individual or body 1
In the present case, AOA is a public spirited body and the present petition brought by AOA, is
maintainable because this act of the government of Arya is in violation of the Fundamental Rights
of the people
Bodhisattwa Gautam v. Subbra ChakrabortyAIR 1996 SC 722.
Lord J. Iyer declared has declared that “even an unregistered association can maintain a writ
petition u/a 32 for the redressal of a common grievance”. Here AOA is a reputed as well as a
registered organisation. 2
In reference to Art. 13(2) of the Constitution “ Any act of the executive or the legislature which
takes away or abridges any of these rights shall be void & the court is empowered to declare it as
void” .The Hon’ble Supreme Court strikes at the arbitrary action of the State 3
In the case of Vivek Narayan Sharma V Union of India 4 , the writ petition filed under Art.32 of
the Constitution was held admissible by the hon’ble SC for the same issue of demonitization
In the Judges Transfer Case 5 , a 7-member bench of Supreme court has firmly established the
rule regarding the public interest litigation. The court held that any member of the public having
sufficient interest can approach the court for enforcing constitutional or legal rights of other
persons and redressal of a common grievance.
The court asserted that, in realization of this constitutional obligation, "it has all incidental and
ancillary powers including the power to forge new remedies and fashion new strategies designed
to enforce the fundamental rights". The Court realized that because of extreme poverty, a large
number of sections of society cannot approach the court. 6
[1.2] Gross violation of the fundamental rights
In the instant case, the grounds stated by the petitioner stating casualties and the number of
deaths resulted due to standing in long queues to exchange their bank notes is an infringement
on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya
Land. Furthermore the denial of transaction to the petitioner in exchanging currency results in the
violation of Article 19(1)(g).
Thus it is humbly submitted that the Public Interest Litigation filed by AOA is maintainable
_____________________
2. A.B.S.K Sangh (Rly.) v. union of India AIR 1981 SC 298
3. R. Gandhi V.Union of India, 1999, 8 SCC 106 (Para 13)
4. Civil appeal No. 906/201
5. S.P. Gupta vs President Of India And Ors. on 30 December, 1981
6. M.C. Mehta and Anr. v. Union of India and: AIR 1987 SC 1086
II. Whether the Notification issued on 8 th november violates the fundamental rights guaranteed
by the constitution
A question arises whether the notification issued on 8 th November actually violates the
fundamental rights guaranteed by the Constitution.
It is most humbly submitted that the notification issued on 8 th November infringes the
fundamental rights guaranteed by the Constitution as it violates Article 19(1)(g) and 21.
[2] Gross violation of the fundamental rights
In the instant case, the grounds stated by the petitioner stating casualties and the number of
deaths resulted due to standing in long queues to exchange their bank notes is an infringement
on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya
Land. Furthermore the denial of transaction which has resulted to the petitioner in exchanging
currency results in the violation of Article 19(1)(g).
· [2.1.1] VIOLATION OF ARTICLE 19 OF THE CONSTITUTION
Article 19(1)(g) guarantees. Protection of certain rights
(1) All citizens shall have the right-
(g) to practise any profession, or to carry on any occupation, trade or business
The right to carry on a business includes the right not to start any business or if he chooses, he
has the right to close it down at any time he likes. Thus the state cannot compel a citizen to carry
on business against his will. However like rights, the right to close down a business is not an
absolute right and can be restricted, regulated, controlled by the state in the interests of general
public.
In the case at hand, reasonable restrictions have been imposed on the fundamental rights
guaranteed under Part III of the Constitution. The AOA aggrieved by the notification on 8 th
November filed PIL in the Apex Court of Arya stating the problems faced by all the citizens of
Arya.
In view of Pathak vs. Union of India 7 wherein it has been held that property within the
7. (1978) 2 SCC 50
meaning of Article 19 (1) (f) and clause (2) of Article 31 comprises every form of property,tangible
or intangible, including debts and chooses in action and that extinguishment of a public debt due
and owing from the State amounts to compulsory acquisition of such debt.
In the present case, the property which has been compulsory acquisitioned is in the form of cash
on the account of the notification of cash ban which has resulted in the cash crunch in the
country resulting in the disturbance of financial economy of the country.
[2.1.3] VOILATION OF ARTICLE 21 OF THE CONSTITUTION
Article 21 reads as:
“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”
The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to
the life in question and depend on the pre-existence of life itself for their operation. As human
rights can only attach to living beings, one might expect the right to life itself to be in some sense
primary, since none of the other rights would have any value or utility without it. There would
have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its
original sense. This Section will examine the right to life as interpreted and applied by the
Supreme Court of India.
In State of Punjab v. M.S. Chawla8 , it has been held that the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care.
In Consumer Education and Research Centre v. Union of India 9 , The Supreme Court laid down
that: “Social justice which is device to ensure life to be meaningful and liveable with human
dignity requires the State to provide to workmen facilities and opportunities to reach at least
minimum standard of health, economic security and civilized living. The health and strength of
worker, the court said, was an important facet of right to life. Denial thereof denudes the
workmen the finer facets of life violating Art. 21.”
8. AIR (1997) SC 1225
9. AIR (1995) 922, (1995) SCC (3) 42
PRAYER
Wherefore, in the light of the facts, issues raised, arguments advanced and the authorities cited,
it is most humbly and respectfully prayed that this Hon’ble court may be pleased to adjudge and
declare that:
1. The writ petition filed by petitioner is maintainable before this Hon’ble court.
2. The Notification issued by Department of Economic Affairs (DEA) of Finance Ministry of Arya
land be quashed and set aside .
According to what is just and good, it is an appeal of the counsel to Hon’ble Court to adjudge the
above prayers, or grant any other relief which this Hon’ble Court may be pleased to grant and is
deemed fit in the interest of Justice, Equity and Good Conscience.
All of which respectfully submitted
For the act of Kindness, the Petitioner shall Duty Bound Forever
All of which is most humbly prayed
Counsels for the Petitioner
Posted 13th September 2017 by KESHAV DWIVEDI 13 SEP Sample Memorial (Petitioner)
Statement of Jurisdiction
IMPORTANT POINTS TO BE CONSIDERED IN MOOTING
Certain words should be used at the time of mooting :
For a male judge – Yourlordship/ My lord
If bench of judges is there or two or more judges then - Hon’ble bench.
For a female judge- Yourladyship.
Appellants and respondents both will represent themselves as- Counsel and their second
speaker as co- counsel.
The opposite party is represented as – Learned opponent counsel
For taking permission from the judges to move towards podium – Counsel humbly seeks
permission to approach the podium.
After reaching at the podium – Much obliged Yourlordship/ Yourladyship.
Whenever judge asked any question in between from the speaker ; before giving answer- Much
obliged Yourlordship/ Yourladyship.
If counsel wants to agree to the view of judge and too wants to keep his point in the front of the
court - Indeed, Yourlordship, but counsel humbly submits that….
For addressing court – Hon’ble Court
If counsel don’t know the answer asked by the judge – Counsel humbly seeks ignorance on this
issue.
Judge asked a question and you can’t get it or unable to understand then speaker will say-
Pardon My lord/ Yourlordship / Yourladyship.
Before saying any argument in front of the Court – The counsel humbly submits/ Yourlordship it
is humbly submitted that…
Speaker 1 while starting with his arguments- A very good morning/ good afternoon Yourlordship /
Yourladyship/ Hon’ble bench. The counsel seeks humble pleasure in appearing before this
hon’ble court in the case of…………..
For showing case to the judge mentioned in a book or commentary- Counsel humbly request to
please refer the case of ( A v. B)
2 nd Speaker ending with prayer before leaving the podium – Thank you, Yourlordship it’s been
an honour to argue before this hon’ble Court.
If your time for speaking gets over and you need more time for arguments- The counsel humbly
requests for the extension of time.
For thanking judge – Much obliged Yourlordship / Yourladyship/ Yourlordships / Yourladyships.
For taking permission of rebuttal from the judges- Counsel humbly seeks permission to start the
rebuttal.
RULES:
Never try to approach the desk of the judge.
Don’t argue on any point simply keep your view point and move ahead with the arguments.
Try to end the arguments in the given time, avoid time extension. When judge will ask question in
between the arguments then that time will be excluded from your speaking
Don’t point finger towards the judges.
If the counsel standing at the podium don’t know the answer and he turn to his co-counsel for the
answer then co-counsel will simply write it on a paper and handover it to the speaker.
The counsel must be in proper uniform with their ID Cards and tie.
At the time of standing at the podium and speaking always be in attention position with either
hands back or keeping one hand at the podium and other at the back.
For giving any book to the judge, the co- counsel or researcher will silently stand up from the
seat and pass it to court officer and then court officer will pass it to the judge.
The counsel standing at the podium will not leave the podium before completion of his or her
time.
Don’t be loud, be clear at your points and audible to all.
Have a control on your tongue and don’t speak Hindi in between .
Be conscious when judge is asking any question and always keep an eye contact with the judges
Posted 12th September 2017 by KESHAV DWIVEDI 12 SEP IMPORTANT POINTS TO BE
CONSIDERED IN MOOTING
NOTICE
This is to inform to all the students of City Academy Law College that Moot Court Committee is
organizing “City Academy Law College 4 rth Intra Moot Court / Pool Selection Competition –
2017”
All the interested teams are invited to participate in this competition.
Please contact H.O.D Sir or the Moot Court Committee members for the registration forms, rules
& regulations and Moot Proposition.
Note-:
Date of the competition is 10 th October- 11 th October 2017.
Last date for submission of forms is 16 th
September 2017.
Last date for submission of memorial is 30 th September 2017.
Only the teams participating and performing well in this competition may further be considered
for sponsorship for moot court competitions by the College.
Any student not participating in this competition will not be sponsored for any moot court
competition in any condition by the college.
Posted 12th September 2017 by KESHAV DWIVEDI 12 SEP NOTICE
CITY ACADEMY LAW COLLEGE
4 rth INTRA MOOT COURT COMPETITION -2017
MOOT PROPOSITION
1. India is a secular country , cultured with wide religious and linguistic diversities , various
communities like Hindus, Muslims ,Christians freely live and practise their religion ,there is no
intervention of the state on the religious matters and also the Constitution of India provides for
the right to freedom of religion as a fundamental right.
2. India being a secular country gives importance to the religious practices of its minority
community and for that Muslim community have , separate Personal Laws governing the matters
of Marriage, Divorce and Succession.
3. Sana Khan , belonging to the Muslim community , married to Salman Khan according to the
rituals of the Muslim community on 20 th September, 2010.The matrimonial relationship between
Sana and Salman led to the birth of two children.
4. In March 2013, Salman saw his wife with some other man in a restaurant , when about the
incident, Sana denied to be with any person in that restaurant but later she admitted that person
to be his friend , since then there were regular quarrels between them.
5. On 29 th January, 2014 Sana left the house of her husband and started living in parent’s
house, children were in the custody of her husband.
6. Salman visited Sana’s place many times for giving her maintenance money and asking her to
come back and start living with him , but Sana refused to do so.
7. On 20 October, 2015 Salman approached the Court of the Principal Judge, Family Court at
Lucknow, with a prayer for restitution of conjugal rights.
8. Sana khan asserted that Salman khan, his husband had continuously made dowry demand for
cash and car and also beaten her, due to which she left her husband house and start living with
her father.
9. In view of theabove averments of Sana, Salman felt that his wife was not ready for
reconciliation, and therefore, he withdrew the suit (forrestitution of conjugal rights), preferred by
him at Lucknow, and divorced Sana on 20 January 2016.
10. Sana has approached Supreme Court of India for assailing the divorce pronounced by her
husband Salman Khan , wherein he affirmed “…in the presence of witnesses saying that I gave
‘talak, talak, talak’, hence like this I divorce from you from my wife.From this date there is no
relation of husband and wife. From today I am ‘haraam’, and I have become ‘naamharram’. In
future you are free for using your life”, The aforesaid divorce was pronounced thetwo witnesses.
11. Sana has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband be
declared as void abinitio . She also contended , that such a divorce which abruptly,unilaterally
and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim
Personal Law (Shariat) Application Act, 1937(hereinafter referred to as, the Shariat Act), be
declared unconstitutional.
12. It was also submitted by her, that the ‘talaq-e-biddat’(triple talaq), pronounced by her
husband is not valid, as it is not a part of ‘Shariat’ (Muslim ‘personal law’) also, that divorceof the
instant nature, cannot be treated as “rule of decision” under the Shariat Act.
13. It was also submitted, that the practice of ‘talaq-e-biddat’ is violative of the fundamental rights
guaranteed under Articles 14, 15 and 21 of the Constitution,that the practice of ‘talaq-e-biddat’
cannot be protected under the rights granted to religious denominations (or any sections thereof)
under Articles25(1), 26(b) and 29 of the Constitution. It was submitted, that the practice of ‘talaq-
e-biddat’ is denounced internationally, and further, a large numberof Muslim theocratic countries,
have forbidden the practice of ‘talaq-e-biddat’, and as such, the same cannot be considered
sacrosanctal to the tenets of the Muslim religion.
14. The petition has been listed for final hearing before the Hon’ble Supreme Court of India on 11
th October, 2017.
tes -: (i) Teams have to prepare memorials from both the side i.e. Petitioner and Respondent.
(ii) Teams are required to present their original arguments based on their detailed research.
Teams may take help from relevant case laws, articles, reports, papers etc. , however, they
cannot cite the recent judgment of Supreme Court as a precedent.
Posted 12th September 2017 by KESHAV DWIVEDI 12 SEP MOOT PROBLEM
CITY ACADEMY LAW COLLEGE
4 rth INTRA MOOT COURT COMPETITITON-2017
RULES & REGULATIONS
· Each team shall consist of 2 members only.
· Language for the Competition is English only.
· Memorial is to be prepared from both the side i.e. Petitioner and Respondent.
· Contents of the Memorial should be in TIMES NEW ROMAN font 12 and for Footnotes TIMES
NEW ROMAN font 10.
· Memorial should be well typed and properly stapled (no need of plastic binding).
· Memorial from either side should not exceed 20 pages.
Only the teams participating and performing well in this competition may further be considered
for sponsorship for moot court competitions by the College.
Any team or the student not participating in this competition will not be sponsored for any moot
court competition in any condition by the College.
Posted 12th September 2017 by KESHAV DWIVEDI 12 SEP RULES & REGULATIONS - 4TH
INTRA MOOT COURT COMPETITION
Black Day in the History of Indian Judiciary-Contempt Saga of Justice Karnan.
Akansha Vidyarthi [1] , Keshav Dwivedi[2]
ABSTRACT
As per the Indian Constitutional Law the judiciary is the highest branch in our Constitutional set
up, as other branches such as the Legislature, the Executive including the general public cannot
be involved with judiciary orders and administrative methods. As such the judiciary is purely an
independent body, so taking advantage of this by any Judge for his personal gains will result in
tarnishing the image of the judiciary.
Recently, country witnessed the most unimaginable act of bravado from a sitting judge of a High
Court-Justice C.S. Karnan. He has brought the judiciary into disrepute, flouted all norms of
judicial conduct and thrown an open challenge to the Supreme Court. In India, next to our
defense personnel, members of the judiciary are seen as a role model by the people for their
discipline and dignified demeanor and fairness in action. But ,
the case of Justice Karnan had caused gradual decline. The case of Justice C.S. Karnan is no
longer just strange or curious; it is disgraceful and intolerable. This case once again reinforces
the basic fact that there is a lack of a mechanism to discipline such judges outside the
impeachment process in order to address delinquency in the higher judiciary.
What appears rather surprising is that the Supreme Court condoned the indiscretion of Justice
Karnan sitting in judgment over his own transfer order, which constituted a blatant violation of the
basic principles of natural justice.
Justice Karnan broke all norms of decency, propriety, and decorum, and even fundamental
principles of law and natural justice, yet no steps were taken to prevent him from indulging in
irresponsible and unconstitutional behavior at the time. The Supreme Court, at the time, sought
to sweep the dust under the carpet by merely transferring him from one high court to another.
Such transfer orders do not solve the problem at all. Such orders suggest instead an escapist
approach, and betray wishful thinking that the controversy would die a natural death through the
shift of the protagonist to a different place.
This paper deals with all the legal issues involved in the Justice Karnan’s case including the
issue that whether the Supreme Court acted ultra vires by initiating the contempt proceedings
against Justice Karnan?
Appointment of Justice Karnan:
Karnan was appointed as an additional judge of the Madras high court in 2009, upon the
recommendation of the collegiums of judges headed by then-Chief Justice of India, KG
Balakrishnan. There is no official record as usual of the basis on which he was considered fit for
appointment, what criteria were examined and whether any material against his elevation was
considered and rejected.
The Constitution does not prescribe any criteria beyond 10 years of legal practice and citizenship
for a lawyer to be appointed as a High Court judge,
Not unknown to Controversies
The Controversy in the name of Justice Karnan commenced from 2011-
In November 2011, Justice Karnan had alleged that a few High Court Judges had humiliated him
on the basis of his caste. He had alleged that Dalit Judges were targeted, and that their
reputation was tainted whenever they proclaimed their self respect.
Justice Karnan alleged that he was left out of the Tamil Nadu State Judicial Academy as he was
from the scheduled caste. He had claimed that all participants were from the upper caste and
that his name was removed in order to make way for a Junior Judge who belonged to the upper
caste.
In Jan, 2014 Justice Karnan, shocked the judicial community when he stormed into a court hall
while Justice R.K. Agarwal was hearing on a PIL, stating the choice of names for appointment as
judges of the court was not fair.
Subsequently, His transfer to some other High Court was requested by Justice R. K. Agarwal
because of his misconduct. Then, Justice Karnan had made an attempt to stall his probable
transfer to another High Court in a letter addressed to the then Chief Justice of India
P.Sathasivam, the then Chief Justice of Madras High Court & Justice R.K. Agrawal. He had
claimed that maintaining his presence in Madras High Court was important, as he obliged to
prove his allegations against the Chief Justice of India and other Judges of the High Court.
Later, in May, 2015, Justice Karnan had passed another order requesting the then Chief Justice
to extend co-operation “without any interference with Court’s proceedings and its Judicial Power
in order to maintain the decorum of the Court and avoid an unhealthy practice of Judiciary in the
interest of the general public”, failing which, this Court will initiate contempt of Court Proceedings”
against the Chief Justice. This order was later stayed by the Supreme Court, in a suo motu writ
proceeding.
The controversy had taken root with Chief Justice Sanjay Kaul constituting the recruitment
committee comprising of Justices V. Dhanapalan, R. Sudhakar, D. Hariparanthaman,
N.Kirubakaran and R.Mala to interview candidates for selection as Civil Judges. The Tamil Nadu
Public Service Commission chairman and other officers were to be part of the selection
committee and it was scheduled to start oral interview of candidates from April 15 till April 21.
On April 16, 2015, Justice Karnan initiated suo-moto proceedings and passed a judicial order
questioning Justice Dhanapalan’s inclusion in the committee. He alleged that latter had produced
“bogus educational qualifications” about his bachelor and masters degree in law, he had no locus
standi to conduct interview. He had even directed the CBI to inquire into his educational
qualifications. He also alleged that inclusion of Justices Sudhakar and Hariparanthaman, who
hailed from the same community besides being relatives, would send a wrong signal about the
fairness of selection. He went on to stay the CJ’s administrative order and restrained the public
service commission chairman from conducting the interview of candidates for civil judge posts.
The CJI had then transferred Justice Karnan to Calcutta High Court by an order which was later
stayed by him. Then, the Madras High Court registry file a petition in the Supreme Court of India
to get his order stayed. Around the same time, the Apex Court had directed Madras High Court
Chief Justice Sanjay Kishan Kaul to not allow Justice Karnan to deal with any more judicial work.
Justice karnan had made a blatant violation of the basic principle of natural justice by sitting in
judgment over his own transfer order As, it is the principle of Natural justice that a man cannot be
a judge in his own cause, i.e. nemo judex in causa sua. Justice Karnan’s act of staying his own
order was contrary to the primary principle of natural justice and common law. The act in itself
called for his removal on the grounds of judicial incapacity.
Justice Karnan has been notorious for making serious allegations against his other fellow Judges
as well. He made allegation of corruption against the 20 judges of Madras High Court and also
against some Supreme Court judges. In May last year, he had alleged that a Judge of the
Madras High Court had assaulted an intern within the High Court premises.
He sent letter to the then Law Minister criticising the collegium system as one that produced
nepotism and favouritism. He also sent a letter addressed to the Principal Accountant General in
Chennai, instructing him to find out if any financial irregularities had been incurred by the Chief
Justice and the Registrar General of Madras High Court.
None of the allegations levelled by Justice Karnan were supported by any material. His
allegations were malicious and defamatory, and pointedly by name, against many of the
concerned Judges.
What is Contempt of Court
The authority to punish for contempt of court has always been exercised by the judiciary from
times immemorial. The justification for the existence of that is not to afford protection to individual
judges, but to inspire confidence in the sanctity and efficacy of the judiciary. Be it a retired judge
of the Supreme Court, a multi-billionaire businessman, regular state machinery or a sitting high
court judge, the judiciary carries a tool to execute its orders and to protect its dignity i.e. contempt
of court.
In Douglas, J., Craig v. Harney[1] , It was held that “ The law of contempt is not made for the
protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to
be men of fortitude, able to thrive in a hardy climate.”
Whither Contempt?
Justice Karnan, in his chaotic manner of challenging judicial order, has thrown up an interesting
constitutional imbroglio. Can the weapon of contempt be used against a high court judge instead
of impeachment under Article 124 of the Constitution?
The use of contempt jurisdiction in place of a more protracted and often abortive process of
impeachment may be attractive but it has far reaching consequences in the maintenance of
constitutional balance between different organs of the government and their exclusive domain.
Impeachment of a judge is a core premise of parliamentary sovereignty. The use of contempt
jurisdiction in this case constitutes an insidious tip-toeing of the judiciary into what is a
parliamentary prerogative. Though this may be an expedient tool in deserving cases, the method
is fraught with dangers of abuse in the future, which may unsettle the fine balance of separation
of powers under the Constitution. It is well known that hard cases make bad laws and the
exercise of contempt jurisdiction against a constitutional functionary in overlapping cases must
therefore be conducted with necessary circumspection and caution.
The Supreme Court has appellate jurisdiction over the high courts, but the Constitution does not
explicitly allow administrative and disciplinary control. The Constitution makers probably refrained
from bestowing such powers on the Supreme Court keeping in mind the high prerogative and
powers that the Constitution bestowed on the high court’s themselves. The high court is as much
a constitutional court as the Supreme Court, though subject to the appellate jurisdiction of the
latter. If the appellate authority (intended to correct errors in judicial matters) were to be
bestowed with disciplinary jurisdiction under the interpretation of the Constitution, it may impair
the independent functioning of the high courts in interpreting constitutional philosophies in a free
and fair manner, affecting intra-judicial independence within its hierarchical ranks. Wisely thus,
the power of impeachment of a constituent was reserved with another wing of the government,
namely the legislature.
Allegations of corruption in the highest judiciary are not uncommon. Prominent personalities like
Prashant Bhushan have raised issues of corruption against chief justices of India in the past.
Contempt proceedings were initiated against him and the editor of the magazine which published
the interview with the said content. However, the case has remained undecided and has been
pending for nearly seven years now. Justice Karnan’s allegations against his peers and against
his seniors in the highest judiciary fall under the same genus of incrimination but appear to have
received more attention than the allegation made by Bhushan.
The Contempt of Courts Act, 1971
This Act recognizes two forms of contempt .Such a distinction has always been made in this
country ever since the present legal system was introduced by the British.
Section 2(b) defines Civil Contempt “wilful disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful breach of an undertaking given to a court.”
Section 2(c) defines criminal contempt .- means the publication (whether by words, spoken or
written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any
other act whatsoever which-
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner;”
Section 16 states that a judge shall also be liable for contempt of his own court or of any other
court in the same manner as any other individual is liable and provisions of the Act apply.
Great Britain from which we have adopted the present legal system abolished the offence of
criminal contempt on the ground of scandalizing the court pursuant to the recommendation of the
Law Commission dated 12th December, 2012. However, in India scandalizing the Court is still
recognized to be an act constituting contempt of court.
Judicial protection Act,1975
Section 3(1) gives a protection to judges that no court shall entertain or continue any civil or
criminal proceeding against any person who is or who was a judge for any act, thing or word
committed, done or spoken by him when, or in the course of, acting or purporting to act in the
discharge of his of judicial duty/function.
Section 3(2 ) however effectively overrules this section and states that the Central government,
state government, Supreme Court, high court or any other authority under the law in force can
take civil/criminal/departmental action against a person who is or was a judge.
So Section 3(2 ) permits the Supreme Court to take action against Justice Karnan.
Contempt Proceedings against Justice Karnan
The baseless allegations made by Justice Karnan against the High Court and the Supreme Court
Judges had resulted in the initiation of contempt proceedings against justice Karnan by seven-
judge constitutional bench. The bench took the suo-moto cognizance and issued the contempt
notice against him and also withdrew all the judicial and administrative power vested in him.
Justice Karnan alleged that the suo-moto contempt against me as a Dalit judge is unethical and
goes against the SC/ST Act. He alleged that the Supreme Court does not have the power to
initiate the contempt proceedings against the sitting judge of High Court. Various opportunities
were given to justice Karnan to make an appearance before the court but he didn’t appeared.
Therefore, a seven Judge Bench of the Supreme Court headed by the CJI issued a bailable
warrant against Calcutta High Court Judge Justice Karnan. He had not accepted the warrant and
Directed CBI To Investigate SC Judges to see that if they have violated the provisions of not only
SC & ST (Prevention of Atrocities) Act, 1989 but also the Indian Penal Code and proceedings of
impeachment against the SC judges can be carried out. He has also “requested” the President to
stay the warrant, and has maintained the claim that he was being singularly targeted by the
higher judiciary for being a Dalit.
On 31 st March Justice Karnan appeared before the 7 judge bench and said that he will not
made an written apology by way of affidavit, till his work is restored to him & he will not attend the
contempt proceedings before the Supreme Court anymore. Thereafter, A seven-judge
Constitution Bench of Supreme Court headed by the Chief Justice of India had ordered the
medical examination of Justice Karnan, who is facing contempt proceedings as he is not in a
position to defend himself.
Karnan’s order called the seven SC judges “national offenders” and said they had shown caste
prejudice against him and insulted him on March 31 by asking about his mental health. “Hence
all the seven judges are offenders under the Scheduled Caste and Scheduled Tribes Atrocities
Act. The order also directed the Registry of the Supreme Court not to clear pension benefits of
the seven judges till he received the compensation of Rs 14 crore. The bench then ordered that
no court, tribunal or authority takes cognizance of orders passed by Justice Karnan.
Justice CS Karnan had summoned the judges of seven bench to his residential court and
‘directed’ the Air Control Authority not to permit eight judges of the Supreme Court from travelling
abroad as There is a probability of the virus of caste discrimination spreading in the said country
by such perpetrators. Justice Karnan ‘Issues’ Non Bailable Warrant Against 7 SC Judges for
making non-appearance in his court and convicted the bench under the SC/ST Act for the term of
5 years.
Consequently, On 9 th may, 2017 the 7 judge bench convicted Justice Karnan for 6 months
imprisonment under the Contempt of Court Act,1971. Calcutta High Court Judge, Justice Karnan,
who has been evading arrest since May 9, becomes the first High Court Judge to have retired
while absconding. Justice Karnan had challenged the constitutional validity of the Contempt of
Court Act, 1971 under Article 32 of the Constitution of India, as well as placed an application of
recall of the orders against him. The Petition was, however, declared as non maintainable by the
Supreme Court Registry. On 20 th june, Justice Karnan was arrested by West Bengal police in
Coimbatore. On June 21 a vacation Bench of Justices D Y Chandrachud and S K Kaul refused to
entertain Karnan’s plea seeking interim bail and suspension of the six-month sentence awarded
to him for contempt of court. The review petition filed by justice Karnan is pending before
Supreme Court.
Thus, the conduct of the contemnor subsequent to the initiation of suo motu contempt petition
No.1 of 2017 in purporting to pass various orders leaves no scope for doubt about the question
whether such conduct would amount to interfering with the judicial proceedings pending in the
highest court of the land. The contents of the letters addressed by him contained scandalous
material against Judges of High Courts and the Supreme Court. This correspondence was
addressed to the highest constitutional authorities, in all three wings of governance – the
legislature, the executive and the judiciary. His public utterances, turned the judicial system into a
laughing stock The main proceeding might or might not have ended in finding the guilt of the
contemnor of scandalizing the judiciary. But, the contemnor aborted all attempts to judicially
resolve the charge of commission of contempt brought against him by the initial notice of the
Court dated 08.02.2017. Rather, he chose to engage in a tirade challenging the very jurisdiction
of this Court to enquire into an allegation of contempt against a sitting Judge of a High Court. If
the contemnor believes and has the material with him to establish that some of the Judges of the
Madras High Court are corrupt or otherwise guilty of some offences known to law, he is required
to approach the appropriate forum competent to examine those allegations. Such complaints, if
made to the appropriate forum/authority are required to be investigated in accordance with the
procedure established by law relevant in the context of each of those allegations and appropriate
further legal proceedings are to be initiated, if the investigation reveals the commission of any
offence cognizable or non-cognizable or any other actionable wrong. There is no doubt in our
mind that such conduct on the part of the contemnor has brought disrepute to the judicial system
and has the potential of shaking the confidence of the average citizen in the system. He has not
shown the slightest remorse which could be a mitigating factor. Such conduct and action, if
tolerated, would certainly reflect an element of weakness in the system. The conduct of the
contemnor during the pendency of the proceedings in this Court certainly constitutes criminal
contempt falling both under the heads of scandalizing the court as well as interference with the
proceedings of this court. In my view, The Supreme Court was justified and judicially correct in
convicting Justice Karnan of contempt of court and punishing him for six-month imprisonment,
under the 1971 Act.
It was alleged by justice Karnan that his matter should be referred to the parliament and
Supreme Court does not have jurisdiction over it, but In my view, the Supreme Court was not
bound to refer to the Parliament a case of contempt. Under the laws, as discussed above, the
Supreme Court on its own has to hear a case of its contempt. A contempt case cannot be
transferred to the Parliament. Further, the Supreme Court in a contempt case cannot wait for a
contingent event, be it retirement from the post held, to go easy or to leave an alleged
contemnor. His conduct, as discussed, is not only contemptuous, but Justice Karnan has also
brought ill name to the institution as such by making counterblast irrelevant orders and staying
unrepentant.
Misconduct by the Judges
In the Indian Constitution, no action can seemingly be taken against a sitting judge of High Court
who are guilty of misconduct, other than transferring him to another High Court. Misconduct of
Judges of High Court and Supreme Court is a problem with no tangible solution so far. Lawyers
may boycott, the public may protest, vigilante namesake committee could be set, unrealistic
impeachment proceedings may be initiated, errant judges may be transferred, and nothing
beyond. We have enough provisions for disciplining the subordinate judiciary, the High Court is
vested with power of superintendence. On the other hand, no disciplinary action can be taken
against the judges of the Supreme Court and High Court.
The Judicial Standards and Accountability Bill, 2010 is still pending. The Constitution provides
that judges of the High Courts and Supreme Court can be removed only by Parliament on the
basis of a motion in either the Lok Sabha or the Rajya Sabha. The existing procedure for
investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court
judges is given in the Judges (Inquiry) Act, 1968. The 2010 Bill replaces the Judges (Inquiry) Act,
1968) ,change the process of removal of judges, enable minor disciplinary measures to be taken
against judges, and require the declaration of assets of judges.
Conclusion
Thus, it can be concluded that the unsavory allegations leveled by Justice Karnan over a span of
time, and his conduct towards a large number of named Judges and the judiciary in general, had
seriously blemished and tarnished the image of those concerned in particular, and the judiciary
as a whole. Justice Karnan shielded himself from actions, by trumpeting his position, as
belonging to an under-privileged caste. By assuming the above position, he leveled obnoxious
allegations against innumerable Judges of the Supreme Court, Chief Justices of the High Courts
and Judges of the Madras High Court.
The allegation of Justice Karnan that he had been discriminated on the basis of his caste is
baseless, because if this would have been true, then his name would never have been elevated
to that post .
Further, Justice Karnan had pleaded mental instability as the reason for his peccadilloes. A
scenario where a judge himself claims mental instability could even justify their impeachment, on
the grounds of mental instability under the Constitution. The Supreme Court though, turned a
blind eye to such deviant behavior.
Justice Karnan was given a long rope by the Supreme Court to correct himself. But his
belligerence against and disdain for the top court was persistent. Though provoked many a time,
the court remained patient. To sentence him before his retirement is not a blemish on judiciary.
Had the Supreme Court bench not passed such an order, it would have sowed the seeds of
doubt in our minds on whether the allegations of corruption raised by Justice Karnan were true. .
Had the court waited for his retirement, it would have set a wrong precedent. The judiciary has
once again proved that all are equal at its doors .
So conclusively, the Supreme Court has powers to initiate contempt against a sitting high court
judge ex parte. The CJI, being the master of the roster, has the power to constitute a 7-judge
bench. The proceedings were first of their kind, but no procedural flaw can be traced. The end
result in conviction and sentence cannot be said to be incorrect in the eyes of law and the media
gag order from publishing statements of the convict is also not incorrect till the final judgment
comes so as to protect further injury to the judiciary’s image.
We need to develop a uniform court procedure and eliminate the personality driven functioning of
Judges. Our courts should be more open to public scrutiny. The video recording of court
procedure is a good measure to make our judges and lawyers more accountable. We don’t have
the system of recording of arguments, unless judges take note of it. It is humanly not possible to
remember every word and submissions in all matters and the causality is non consideration of
certain points while rendering the judgment. Unlimited and unchecked judicial power, if not
bestowed with the right men and women, is bound to cause mischief.
The root of the problem lies in selection method of judges. It is saddening to see that many
judges of our constitutional courts behave without grace and majesty expected from them. There
have been incidents of exorbitant display of rage by the judges acting in impulse against the
lawyers. It has now become a common feature in Courts to see Judges and Lawyers argue in a
heated atmosphere and judges use words not befitting to the seat they occupy. It is difficult to
bring in such misconducts within a legislative framework and find solution.
Consequently, this case, mainly highlights 2 things-
The need to revisit the process of selection and appointment of judges to constitutional courts,
any member of judiciary at all levels. And;
Need to set up appropriate Legal regime to deal with the situations where the conduct of judge of
a constitutional court requires corrective measures other than impeachment process.
As, the conduct of contemnor ever since his elevation to the bench has been controversial.
Obviously, there is a failure to make an assessment of the personality of the contemnor at the
time of recommending his name for elevation. It clearly highlights the system’s failure of not
providing an appropriate procedure for making such an assessment. The standards and
procedure for impeachment of judges are much more rigorous for reasons obvious. There can be
deviations in the conduct of the holders of the offices of constitutional courts which do not strictly
call for impeachment of the individual or such impeachment is not feasible. Surely there must be
other ways of dealing with such cases. The text of the Constitution is silent in this regard. What
appropriate mechanism would be suitable for assessing the personality of the candidate who is
being considered for appointment to be a member of a constitutional court is a matter which is to
be identified to maintain the dignity and Independence of Judicial System.
How the present collegium system can be improved?
§ Accepting applications for appointments as High Court judges should be followed. This is
followed in the U.K. and can be adopted in India too.
§ There must be full and complete disclosure of relationships and affiliations of applicants to
sitting and retired judges.
§ Minimum eligibility criteria for consideration need to be laid down, including appearances in
important cases.
§ Parliament should also enact changes to provide a uniform retirement age for judges of the
Supreme Court and the High Courts, so that the present practice of some of the judges seeking
to be in the good books of the existing or prospective members of collegiums in the Supreme
Court is avoided. This will also obviate the argument of expectation based on seniority for
appointment as judges of the Supreme Court.
§ The retirement age may be raised uniformly to 70 with a condition that no judge retiring at 70
shall be appointed as a member of any Tribunal.
§ The continuation as a judge after the age of 65 should be subject to being found ‘not unfit’ by
the Permanent Commissions.
§ A minimum tenure of two years should be provided to the Chief Justice of India and the Chief
Justice of High Courts.
§ No judge who is more than 68 years should be made a Chief Justice.
§ Court management should not be vested with Judicial Officers but assigned to trained
managers.
§ All the three organs of the state should also introspect as to why there has been no or
inadequate representation in the higher judiciary from amongst women.
[1] Douglas, J., Craig v. Harney 331 US 367, 376 (1947)]
[1] 3 rd year B.A. LL.B. Student, City Academy Law College, Lucknow
[2] 3 rd year B.A. LL.B. Student, City Academy Law College, Lucknow
Posted 22nd August 2017 by KES