TC- 027

LAW COLLEGE DEHRADUN, FACULTY OF UTTARANCHAL UNIVERSITY

NATIONAL MOOT COURT COMPETITION - 2017

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Mr. Hobart
v.
State of Anga-Pradesh
ALONG WITH
Mr. Ozan
v.
State of Anga-Pradesh
AND
Participation & Emancipation of Women (PEW)
v.
State of Anga-Pradesh

PETITION INVOKED UNDER ART. 32 & 136 OF

THE CONSTITUTION OF INDIA

___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

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TABLE OF CONTENTS

 LIST OF ABBREVIATIONS..........………………………………………………….2
 INDEX OF AUTHORITIES………………………………………………………….4
 STATEMENT OF JURISDICTION....…………………………………………….....7
 STATEMENT OF FACTS……………………………………………………………8
 STATEMENT OF ISSUES....………………………………………………………..10
 SUMMARY OF ARGUEMENTS…..……………………………………………….11
 ARGUMENTS ADVANCED...……………………………………………..……….13
I. THE IMPUGNED RULES PROHIBITING THE ‘LIVE TELECAST’ OF THE
PROCEEDINGS DO NOT VIOLATE THE BASIC FEATURE OF THE
CONSTITUTION……………………………………………………………….14
1. THE HOUSE HAS THE POWER TO FORMULATE THE IMPUGNED
RULES…………………………………………………………………………..14
2. THE ACT OF THE SPEAKER TO SUSPEND MR. HOBART CANNOT BE
CALLED INTO QUESTION……………………………………………………14
3. THE IMPUGNED RULES ARE NOT AGAINST THE PRINCIPLES OF
LIBERAL DEMOCRACY………………………………………………………15
(1) THE IMPUGNED RULES ARE NOT AGAINST THE PRINCIPLES OF
LIBERAL DEMOCRACY………………………………………………….15
(2) THE IMPUGNED RULES ARE NOT ULTRA- VIRES OF ARTICLE
19……………………………………………………………………………15
i. RIGHT GRANTED UNDER ARTICLE 19 IS NOT ABSOLUTE…...16
(3) THE IMPUGNED RULES ARE NOT IN VIOLATION OF ARTICLE
21……………………………………………………………………………17
II. THE ‘SEARCH & SEIZURE’ AS CONDUCTED BY THE POLICE IS WITHIN
THE PERMISSIBLE LIMITS OF THE CONSTITUTION AND PROCEDURE
PRESCRIBED BY LAW………………………………………………………..18
1. THE POLICE HAVE FOLLOWED THE DUE PROCEDURE ESTABLISHED
BY LAW………………………………………………………………………...18
(1) THE EVIDENCE PROCURED BY THE POLICE IS ADMISSIBLE……19
2. THE ‘SEARCH & SEIZURE’ IS NOT VIOLATIVE OF RIGHT TO PRIVACY
OF MR. OZAN………………………………………………………………….20

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3. THE ACT OF THE PETITIONER BREACHES THE MORALITY CODE OF

CONDUCT………………………………………………………………………21
4. THE POLICE HAVE NOT EXCEEDED THEIR POWER IN OBTAINING
INFORMATION FROM THE INTERNET SERVICE PROVIDERS…………21
5. THE ‘SERACH & SEIZURE’ CANNOT BE EXCLUDED DUE TO
LEGISLATIVE PRIVILEGES OF THE PETITIONER………………………..22
III. THIS COURT CANNOT PASS A WRIT TO THE ‘STATE’ SEEKING
ENFORCEMENT OF ARTICLE 243T…………………………………………22
1. THE WRIT AGAINST THE GOVERNOR IS NOT MAINTAINABLE WITH
REGARD TO ARTICLES 361 AND 371A………………………………….…21
2. THE DISCRETIOANRY POWER AFFORDED TO THE GOVERNOR UNDER
ART 163(2) CANNOT BE CALLED INTO QUESTIONED…………………..23
3. THE IMPUGNED ORDINANCE APPROVED BY THE CABINET IS IN
VIOLATION OF VARIOUS CONSTITUTIONAL PROVISIONS……………24
(1) THE ORDINANCE IS VIOLATIVE OF ARTICLE 25 OR 26……………24
(2) THE ORDINANCE IS VIOLATIVE OF ARTICLE 29……........................25
(3) VIOLATIVE OF CONSTITUTIONAL OBLIGATIONS UNDER ARTICLE
371A………………………………………………………………………...26
4. DECISION OF THE GOVERNOR DOES NOT VIOLATE THE
FUNDAMENTAL RIGHTS ENSHRINED UNDER ARTICLES 15 AND
16………………………………………………………………………………...26
5. THE DECISION OF THE GOVERNOR SATISFIES THE WEDNESBURY
PRINCIPLE……………………………………………………………………..26
6. THE PRINCIPLE OF GENERALIA SPECIALIBUS NON DEROGANT MUST
BE FULFILLED……………….....................................................……………..27

 PRAYERS……………………………………………………………………...…….28

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LIST OF ABBREVIATIONS

Sr. No. Abbreviation Full form

1. & And

2. ¶ Paragraph

3. AIR All India Reporter

4. Anr. Another

5. AP Anga-Pradesh

6. Art. Article

7. BOM Bombay High Court

8. Cr. P.C. Code of Criminal Procedure

9. Cri Lj Criminal Law Journal

10. Del Delhi High Court

11. FIR First Information Report

12. Govt. Government

13. Hon’ble Honourable

14. ISP Internet Service Provider

15. IT Act Information Technology Act, 2000

16. Mad. Madras High Court

17. MP Madhya Pradesh

18. Ors. Others

19. SC Supreme Court

20. SCC Supreme Court Cases

21. Sec Section

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22. U.O.I Union of India

23. v. Versus

24. W.P Writ Petition

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INDEX OF AUTHORITIES

Supreme Court Cases

Sr. Title. Citation. Appear on

No. Page(s)
1. A.K Gopalan v. State of Madras. AIR 1950 SC 27. 17
2. A.P. Public Service Commission v. Baloji (2009) 5 SCC 1. 26
Badhavath.
3. Anil Rai v. State of Bihar. (2001) 7 SCC 318. 18
4. Anvar P. V. v. P. K. Basheer AIR 2015 SC 180. 27
5. Bhavesh Jayanti Lakhani v. State of AIR 2008 SC 2866. 20
Maharashtra.
6. Cf. D.A.V. College, Jullundur v. State of AIR 1971 SC 1737. 25
Punjab.
7. Commr. H.R.E. v. Lakshmindra Thiratha AIR 1954 SC 282. 25
Swamiar.
8. Divine Retreat Centre v. State of Kerala. AIR 2008 SC 1614. 19
9. Dr. Subramanian Swami v. Deciding Authority 1995 Cri LJ 3380. 23
& Ors.
10. Gobind v. State of Madhya Pradesh. (1975) 2 SCC 148. 20
11. Govindlalji Maharaj & Tilkayat Shri v. State of AIR 1963 SC 1638 25
Rajasthan. (1660).
12. Gulam Abbas v. State of U.P. AIR 1981 SC 2198. 25
13. Hem Raj v. State of Punjab. AIR 2003 SC 4259. 19
14. Inderjeet v. State of U.P. AIR 1979 SC 1867. 17
15. Jagadishwaranand Avadhuta, Acharya v. AIR 1984 SC 51. 25
Commr. Of Police, Calcutta.
16. Kamlesh Vaswani v. Union of India. W.P. (Cvl.) 177/ 21
2013 (Supreme
Court, 26/02/2016).
17. Krishnan Kakkanth v. Govt. of Kerala. AIR 1997 SC 128, 17
135.
18. M. Nagaraj v. Union of India. (2006) 8 SCC 212. 17
19. Madhu Limaye v. Sub- Divisional Magistrate, AIR 1971 SC 2486. 16
Monghyr.
20. Maneka Gandhi v. Union of India. AIR 1978 SC 597. 17
21. O.K. Ghosh v. E.X. Joseph. AIR 1962 SC 812, 16
814.
22. Orissa Mining Corporation v. Ministry of (2013) 6 SCC 476. 25
Environment and Forests.

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23. Pandit M. S. M. Sharma v. Shri Sri Krishna AIR 1959 SC 395. 14,16,17
Sinha & Ors.
24. Pathumma v. State of Kerala. AIR 1978 SC 771. 17
25. Pooran Mai v. Director of Inspection. AIR 1974 SC 348. 20
26. Prabhu Dutt v. Union of India. AIR 1982 SC 6. 16
27. Pratap Singh v. Director of Enforcement. AIR 1985 SC 989. 19

28. Radhakrishnan v. State of U.P. AIR 1963 SC 822. 19

29. Raja Ram Pal v. The Hon'Ble Speaker, Lok (2007) 3 SCC 184. 14
Sabha & Ors.
30. Rameshwar Prasad & Ors v. Union Of India & AIR 2006 SC 980. 23
Anr.
31. Ranjit D Udeshi v. State of Maharashtra. AIR 1965 SC 881, 17
885.
32. Samsher Singh v. State of Punjab & Anr. AIR 1974 SC 2192. 23
33. Shri Dinesh Trivedi, M.P. & Ors v. Union Of (1997) 4 SCC 306. 15
India & Ors.
34. South India Corporation (P) Ltd. v. Secretory, AIR 1964 SC 207. 27
Board of Revenue, Trivendrum.
35. State of Bihar v. P.P. Sharma. AIR 1991 SC 1260. 19
36. State of Bihar v. Shailabala Devi. AIR 1952 SC 329. 16

37. State of Gujarat & Anr. v. Patel Ramjibhai AIR 1979 SC 1098. 27
Dhanbhai & Ors.
38. State of Haryana & Ors v. Ch. Bhajan Lal. AIR 1992 SC 604. 19
39. State of Maharashtra v. Bharat Shanti Lal Shah. (2008) 13 SCC 5. 20
40. State of Maharashtra v. Natwarlal Damodardas AIR 1980 SC 593. 19
Soni.
41. State of Punjab v. Makhan Chand. (2004) 3 SCC 453. 19
42. State of Rajasthan v. Rehman. AIR 1960 SC 210. 19
43. Supdt. Central Prison, Fatehgarh v. Ram AIR 1960 SC 633. 16
Manohar.
44. Superintendent of Police, C.B.I. & Ors. v. Tapan AIR 2003 SC 4140. 19
Kr. Singh.
45. T.M.A Pai Foundation v. State of Karnataka. AIR 2003 SC 355. 26
46. The State of Uttar Pradesh v. Bhagwant Kishore AIR 1964 SC 221. 18
Joshi.
47. Varu Digyadarshan Rajendra Ramdassji v. State AIR 1970 SC 181. 25
of U.P.

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High Court Cases

1. Suresh Chandra Chimanlan Shah v. Union of AIR 1975 Del 168. 26

India.
2. Sunderlal Patwa v. Union Of India & Ors. AIR 1993 MP 214. 23
3. Shri Pratapsing Raojirao Rane & Ors v The AIR 1999 BOM 53. 23
Governor of Goa & Ors.
4. S. Dharmalingam v. His Excellency Governor of AIR 1989 MAD 48. 23
State of Tamil Nadu.
5. Paresha G Shah v. State of Gujarat & Ors. 2016 GLH (1) 329. 21
6. Emperor v. Paramsukh. AIR 1926 All 47. 19
7. A.K. Bose v. The Speaker. W.P. (Cvl.) 1526/ 16
2008 (Madras High
Court, 01/02/2008).

International Cases

1. Associated Provincial Picture Houses Ltd v. 2 All ER 680, (1947, 26

Wednesbury Corp. Court of Appeal of
England and Wales).

Statutes Referred

1. Constitution of India, 1950.

2. The Code of Criminal Procedure, 1973.
3. The Information Technology Act, 2000.

Books Referred

1. B.B. Mitra, Code of Criminal Procedure, Twenty-First Edition, 2011.

2. Durga Das Basu, Shorter Constitution of India, Fourteenth Edition, 2011.
3. H. M. Seervai, Constitutional Law of India, Ninth Edition, 2013.
4. M. P Jain, Indian Constitutional Law, Eighth Edition, 2012.
5. Mulla, Commentary on the Code of Criminal procedure, 1973, Twentieth Edition, 2015.
6. Subhash C. Kashyap, Parliamentary Procedure, Second edition, 2006.

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STATEMENT OF JURISDICTION

I. Writ Petition No.__ of 2017- Mr. Hobart v. State of Anga-Pradesh.

The Petitioner has filed a Writ Petition before the Hon’ble Supreme Court of
Indistan in the matter of Mr. Hobart v. State of Anga-Pradesh under Article 32 of
the Constitution of Indistan against the decision of the Hon’ble Speaker of the
Legislative Assembly of Anga-Pradesh.

II. Special Leave Petition No.__ of 2017- Mr. Ozan v. State of Anga-Pradesh.
The Petitioner has filed a Special Leave Petition before the Hon’ble Supreme Court
of Indistan in the matter of Mr. Ozan v. State of Anga-Pradesh under Article 136 of
the Constitution of Indistan against the judgment and Order of the Hon’ble High
Court at Anga-Pradesh.

III. Writ Petition No.__ of 2017- Participation & Emancipation of Women v. State of
Anga-Pradesh.
The Petitioner has filed a Writ Petition before the Hon’ble Supreme Court of
Indistan in the matter of Participation & Emancipation of Women v. State of Anga-
Pradesh under Article 32 of the Constitution of Indistan against the decision of the
Governor of Anga-Pradesh.

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STATEMENT OF FACTS

The Constitution of Indistan is based on the principles of liberal democratic governance. Anga
Pradesh has been granted a great degree of state autonomy, as well as special powers for tribes
to conduct their own affairs.

I
1. The cabinet of the State of AP approved an ordinance seeking immediate
implementation of women reservation in the Municipalities as per the provisions of part
IXA of the Constitution.
2. The tribal leaders (male) under the banner Joint Action Committee (JAC) in the State
of AP made a representation to the Governor asking to refrain from giving his assent to
the proposed ordinance as it was seen as an attempt to interfere with the tribal customary
law and procedure guaranteed to the State of AP under Art. 371A of the Constitution.
The JAC called for ‘bandhs’ and ‘complete blockade’ which had serious impact on ‘law
&order’ in the State of AP. Even though the call for ‘bandhs’ and ‘blockades’ was
largely peaceful it resulted in the death of seven protesters.
3. The Governor citing his responsibility under Art 371A did not give his assent to the
ordinance approved by the cabinet.
4. An NGO named PEW (Participation & Emancipation of Women) working for socio,
economic and political justice to the women in AP has preferred a writ petition against
the Governor under Art. 32 of the Constitution seeking enforcement of Art. 243T.
II
5. Mr. Hobart is a veteran legislator, his Smartphone got activated while he was making a
speech on the floor of the house and his speech became live through his social media
page of Facebook.
6. The Speaker of the legislative assembly received a complaint against Mr. Hobart. The
Speaker got the incident examined by the ethics committee which recommended
suspension of Mr. Hobart for six weeks and the Speaker acted accordingly.
7. Mr. Hobart challenged the decision of the Speaker as violative of fundamental rights
and constitutional norms in the modern governance in a writ petition and also sought a
writ declaring the rules as unconstitutional which prohibits ‘Live Telecast’ of
proceedings of the business.
III

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8. Two ministers, Mr. Savadi and Mr. Ozan were allegedly caught on Television Camera
watching child pornographic clips. It was the mobile phone of Mr. Savadi while Mr.
Ozan was peeping into the phone.
9. The Speaker of the assembly received a complaint against the two ministers, contending
that the Hon’ble SC of Indistan had banned all websites containing child Pornographic
movies and the Speaker referred the matter to the ethics committee of the assembly.
The ethics committee recommended expulsion of Mr. Savadi and suspension from the
legislative assembly of six weeks in the case of Mr. Ozan. The Speaker accepted the
recommendations of the committee and directed the Secretary General of the legislative
assembly to get an FIR registered against Mr. Savadi.
10. The superintendent of Police sought the permission of the Speaker to inspect, search
the offices of Mr. Savadi and Mr. Ozan. The Speaker authorized the police to conduct
the physical search and seizure of the two offices.
11. On search & seizure no incriminating material was found against Mr. Savadi. However,
it was found that the computer of Mr. Ozan was used to access and store child
pornographic clips. Mr. Ozan contended that there was a political conspiracy to
scandalize him and claimed that the evidence obtained should be excluded as it violates
his ‘Legislative Privileges’ besides safeguards in the Part III of the Constitution.
12. Mr. Ozan challenged the entire proceedings of search & seizure in a writ petition under
Art. 226. However, the High court dismissed the writ petition. Thereafter Mr. Ozan
preferred a Special leave petition to the Supreme Court of Indistan against the order
and the judgement of the High Court.

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STATEMENT OF ISSUES

THE RESPONDENT SUBMITS THE FOLLOWING QUESTIONS OF LAW TO THIS

HON’BLE COURT:

I. WHETHER THE RULES PROHIBITING ‘LIVE TELECAST’ OF BUSINESS OF

THE HOUSE ARE AGAINST THE BASIC FEATURE OF THE
CONSTITUTION?
II. WHETHER THE ‘SEARCH & SEIZURE’ CONDUCTED BY THE POLICE IS
AS PER THE CONSTITUTIONAL PROVISIONS AND PROCEDURE
ESTABLISHED BY LAW?
III. WHETHER THE STATE CAN PASS AN APROPRIATE WRIT FOR THE
ENFORCEMENT OF ARTICLE 243T?

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SUMMARY OF ARGUMENTS

I. THE IMPUGNED RULES PROHIBITING THE ‘LIVE TELECAST’ OF THE

PROCEEDINGS DO NOT VIOLATE THE BASIC FEATURE OF THE
CONSTITUTION.

The Constitution empowers the legislative assemblies to formulate and protect its rules under
Article 208 and 194(3) of the Constitution. In the instant case the rules of the house are not
violative of the Basic Features of the Constitution. Further, if the proceedings of the house are
made public the same would affect the independence of the legislature, while the impugned
rules in the instant case acts as a safeguard of the principles of liberal democracy. Furthermore,
the impugned rules are not violative of Articles 19 or 21, as the same is not absolute which has
been held by the Supreme Court of India in a catena of decisions. Moreover, the fundamental
rights enshrined under Part III of the Constitution must yield to Article 194(3) when a conflict
arises and the same being a special law.

Lastly, the act of the Speaker to suspend Mr. Hobart cannot be called into question owing to
the immunity granted to the Speaker by Article 212 of the Constitution.

II. THE ‘SEARCH & SEIZURE’ AS CONDUCTED BY THE POLICE IS WITHIN THE
PERMISSIBLE LIMITS OF THE CONSTITUTION AND PROCEDURE
PRESCRIBED BY LAW.

The search and seizure conducted at the office of Mr. Ozan and the information gathered by
the Police through Internet Service Providers (ISPs) are within the permissible limits of the
Constitution. Further, the Police have been granted wide powers under section 156 and 157 of
the Criminal Procedure Code to investigate into a matter without an order of the Magistrate.
Moreover, section 165 of the Criminal Procedure Code allows the Police to search a place
within its jurisdiction without a warrant.

Further, the information obtained by the Police by means of Internet Service Provider is in
consonance with Section 43A and 69 of the Information Technology Act.

Furthermore, assuming without admitting that the due process of law was not followed the
evidence collected can yet be admitted as there is no constitutional or statutory bar relating to
the same. This has been decided by the Supreme Court of India in a catena of decisions.

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Lastly, the search and seizure does not violate the right to privacy of Mr. Ozan as the same is
not absolute which has been decided by the Supreme Court of India in a catena of decisions
and the Search & Seizure cannot be excluded due to the legislative privileges as the same is
only in respect to ‘anything said’ or ‘any vote given’. The immunity does not cover any act
done by the members in their personal capacity.

III. THIS COURT CANNOT PASS A WRIT TO THE ‘STATE’ SEEKING

ENFORCEMENT OF ARTICLE 243T.

The decision of the Governor to not give his assent to the impugned ordinance was an exercise
of his discretionary power under Article 163(2) of the Constitution. Further Article 361(1)
affords immunity to the Governor for the decisions made by him in exercise of his discretionary
powers which is not only final but cannot be challenged in the court which has been decided
by the Supreme Court of India in the catena of decisions. This power of the Governor in the
instant case is further protected by Article 371A(1)(b), wherein the Governor can act on his
individual judgement and the same cannot be called into question.

Moreover the impugned ordinance approved by the cabinet is violative of Article 25,26 and 29
of the Constitution as it interferes with the religious affairs and the cultural traditions of the
tribes of Anga-Pradesh. Further, the State of Anga-Pradesh enjoys special status under Article
371A as a result of which no act of the Parliament would be applicable to the State of Anga-
Pradesh. Furthermore, the decision of the Governor to not give assent is not violative of Articles
14, 15 or 16 of the Constitution.

Lastly, the decision of the Governor satisfies the ‘WEDNESBURY PRINCIPLE’, which holds
that when a statute grants discretion to an authority to take a decision, the scope of judicial
review in such cases would be limited.

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ARGUMENTS ADVANCED

I. THE IMPUGNED RULES PROHIBITING THE ‘LIVE TELECAST’ OF THE

PROCEEDINGS ARE NOT IN VIOLATION OF THE PROVISIONS OF THE
CONSTITUTION.

The impugned rules are not ultra- vires of the constitutional provisions as (1) The house has
powers to formulate its own rules; (2) The rules are not against principles of liberal democracy;
and (3) The rules are not violative of Art 19 and 21 of the Constitution.

1. THE HOUSE HAS THE POWER TO FORMULATE THE IMPUGNED RULES.

The Constitution empowers a State Legislative assembly to formulate rules under Art 208(1)
which reads as, “A House of the legislature of a state may make rules for regulating subject to
the provisions of this Constitution, its procedure and the conduct of its business.”

Further, Art 194(3) provides for the powers, privileges and the immunities of a House of the
Legislature of a State shall be as such as may from time to time be defined by the Legislature
by law. It has been held by the Hon’ble SC of India in a catena of decisions that the provisions
of Art 194(3) are constitutional laws and not ordinary laws made by the Parliament or the State
Legislatures as a result of which, they are as supreme as the provisions of Part III of the
Constitution.1 Moreover, since the Constitution confers powers upon the House to formulate
its rules, it is implicitly followed that the house also has the powers to protect such rules. Hence,
the action of the Speaker to suspend Mr. Hobart is an exercise of his powers to protect the
dignity and maintain decorum of the House.

2. THE ACT OF THE SPEAKER TO SUSPEND MR. HOBART CANNOT BE

CALLED INTO QUESTION.
Art 212 of the Constitution provides that the Courts cannot inquire into the proceedings of the
legislature. Firstly, clause (1) of Art 212 grants immunity to the proceedings of a Legislature
in a court of law. Secondly, Clause (2) of the same Art grants immunity to an officer or a
member of a Legislature of a State in respect to exercise of powers vested in him for regulating
procedure and the conduct of business for maintaining order in the Legislature. 2 In the instant
case, the rules of the Legislative Assembly of the state of Anga Pradesh prohibits unauthorized

1
Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha & Ors, AIR 1959 SC 395.
2
Raja Ram Pal v. The Hon'Ble Speaker, Lok Sabha & Ors, (2007) 3 SCC 184.

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telecast of assembly proceedings. As a result of which, the decision of the Speaker to suspend
Mr. Hobart from the Assembly cannot be called into question and in doing so the Speaker has
not acted ultra-vires of the Constitution.

3. THE IMPUGNED RULES ARE NOT IN VIOLATION OF THE BASIC FEATURE

OF THE CONSTITUTION.

The impugned rules are not against the basic feature of the Constitution, (1) The principles of
liberal democracy; (2) Fundamental rights under Art 19; (3) Fundamental rights under Art 21.

(1) THE IMPUGNED RULES ARE NOT AGAINST THE PRINCIPLES OF LIBERAL
DEMOCRACY.

The Legislative Assembly on numerous occasions deal with issues which involve matters
relating to the Security of the State and if this data is available openly, it may be misused by
anti-national elements of the society against the state itself.

It has been held by the SC of India that if every action taken by the political or executive
functionary is transformed into a public controversy and made subject to an enquiry to soothe
popular sentiments, it will undoubtedly have a chilling effect on the independence of the
decision-maker which may affect his independence to make decisions. It will paralyse the
entire system and bring it to a grinding halt3 and hence, the impugned rules provide for
protection of sovereignty of the state rather than violating the principles of liberal democracy.

(2) THE IMPUGNED RULES ARE NOT ULTRA- VIRES OF ARTICLE 19.

Art 19 provides for the freedom of speech and expression while as Art 194(3) reads of powers
and privileges of the house of legislature and of the members and committee thereof.

In the instant case the rules prohibiting ‘Live Telecast’ of the proceedings, do not infringe the
fundamental rights of Mr. Hobart enshrined under Art 19 of the Constitution as the prohibition
imposed by the rule does not in any manner impose a restriction on his right to make a speech
on the floor of the House or even outside the assembly. It only prohibits the live telecast of the
proceedings of the house which the Assembly has a right to restrict in exercise of its powers
provided under Art 194(3) and Art 208. Moreover, when there arises a conflict between
fundamental right of speech and expression under Art 19(1)(a) on one hand and the powers and

3
Shri Dinesh Trivedi, M.P. & Ors v. Union of India & Ors, (1997) 4 SCC 306.

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privileges of the Legislative Assembly under Art 194(3) on the other hand, the “principle of
harmonious construction must be adopted and so construed, the provisions of Art 19(1)(a),
which are general, must yield to Art 194(3) which is a special law”.4

Assuming without admitting that his rights were violated, The Hon’ble SC of India has held
that, if an individual is deprived of his fundamental rights as a result of the proceedings before
the Ethics Committee, such deprivation would be in accordance with the procedure established
by law, which has been the scenario in the instant case and hence, a complaint of breach of
fundamental rights could not be made.5

i. RIGHT GRANTED UNDER ARTICLE 19 IS NOT ABSOLUTE.

It is pertinent to note that no freedom can be absolute or completely unrestricted so as to

maintain the law and order of a State6. Art 19(2) allows the state to impose restrictions on Art
19(1)(a) by making any laws in the interests of sovereignty and integrity of the country, the
security of the state, public order or incitement to an offence. Here, public order is synonymous
with public peace, safety and tranquillity7 and covers a small riot, an affray and other cases
where peace is disturbed by or affects, a small group or persons, public safety (or insecurity of
the state), breach of peace or acts which disturbs public tranquillity8.

Further, Mr. Hobart’s speech was made when the ‘law and order’ situation in the State of AP9
was in turmoil which resulted in the death of seven protesters10 and hence, it invites restriction
under ‘Security of the State’ as the Hon’ble SC of India has held that incitement of violent
crimes is an offence against public order and undermine the security of the state11. It has even
been held by the Hon’ble SC of India that speeches or expressions on the part of an individual
which incite to or encourage the commission of violent crimes, cannot but be the matters which
would undermine the security of the state and come within the ambit of a law sanctioned by
Art 19(2)12. Further, an individual should keep in mind the probable effects his speech would

4
A.K. Bose v. The Speaker, W.P. (Cvl.) 1526/2008 (Madras High Court, 01/02/2008).
5
Supra 1.
6
Prabhu Dutt v. Union of India, AIR 1982 SC 6.
7
O.K. Ghosh v. E.X. Joseph, AIR 1962 SC 812, 814;
Supdt. Central Prison, Fatehgarh v. Ram Manohar, AIR 1960 SC 633.
8
Madhu Limaye v. Sub- Divisional Magistrate, Monghyr, AIR 1971 SC 2486.
9
Moot Proposition, ¶- 8.
10
Moot Proposition, ¶- 8.
11
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
12
Ibid.

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have on the minds of the people.13 Hence, the restriction was reasonably imposed by the
Speaker on the speech of Mr. Hobart.

Further, to adjudicate the reasonableness of a restriction, the courts consider the circumstances
under which, and the manner in which, that imposition has been authorized. The nature of the
right infringed, the underlying purpose of the restrictions imposed, the extent and the urgency
of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, all these conditions enter into judicial verdict14. And since, the prevailing
conditions in the state of Anga Pradesh demanded such an action to be taken, the decision of
the Hon’ble Speaker should be held to be valid and reasonable.

(3) THE IMPUGNED RULES ARE NOT IN VIOLATION OF ARTICLE 21.

Art 21 guarantees the citizens protection of life and liberty, cannot be said to be violated by the
impugned rules as the said rules do not restrict his right to life and liberty. Mr. Hobart was
suspended from the assembly after following the due process of law and hence the act of the
Speaker should not be seen as violative of Art 21 of the Constitution15 as the act is reasonable,
fair and does not suffer from the vice of arbitrariness16. In the instant matter, the decision taken
by the Speaker should be seen in context of the then situation of law and order in the state of
Anga-Pradesh. Hence, the suspension of Mr. Hobart from the assembly must not be seen as
violative of his rights under Art 21.

Moreover, Art 21 cannot be treated against Art 194(3) for the reason that the same would
amount to restricting the freedom, power and jurisdiction of the Legislature including to deal
with privilege and contempt of the House effectively and that if all facets of Art 21 are pressed
against Art 194 as controlling provision, then, it will result in the undoing of House itself in
course of time.17

13
Ranjit D Udeshi v. State of Maharashtra, AIR 1965 SC 881, 885.
14
Krishnan Kakkanth v. Govt. of Kerala, AIR 1997 SC 128, 135;
Pathumma v. State of Kerala, AIR 1978 SC 771.
15
A.K Gopalan v. State of Madras, AIR 1950 SC 27.
16
Maneka Gandhi v. Union of India, AIR 1978 SC 597;
Inderjeet v. State of U.P., AIR 1979 SC 1867;
M. Nagaraj v. Union of India, (2006) 8 SCC 212.
17
Supra 1.

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II. THE ‘SEARCH & SEIZURE’ AS CONDUCTED BY THE POLICE IS WITHIN THE
PERMISSIBLE LIMITS OF THE CONSTITUTION AND PROCEDURE
PRESCRIBED BY LAW.

The search and seizure conducted by the Police is within the permissible limits of the
Constitution as (1) It has been done after following the procedure established by law; (2) The
evidence procured by the Police is admissible; (3) It does not violate the right to privacy of the
petitioner; (4) The Police have not exceeded their powers in obtaining information from
Internet Service Providers; and (5) The search and seizure cannot be excluded based on the
petitioner’s legislative privileges.

1. THE POLICE HAVE FOLLOWED THE DUE PROCEDURE ESTABLISHED BY

LAW.

The Police officials in the instant case had obtained prior permission of the Speaker to conduct
the Physical Search and Seizure of the office and the official computer of Mr. Ozan. 18 The
Ethics Committee had recommended suspension of Mr. Ozan for six weeks from the legislative
assembly, citing his indirect involvement in browsing porn website on the Phone.19

According to Section 156 of the Cr.P.C., the Police have the power to investigate a cognizable
case, without the order of the magistrate, and the proceedings of the Police shall not be called
in question on the ground that the said officer was not empowered to investigate.20The SC of
India has held that the receipt of information is not a condition precedent for investigation and
the officer can start investigation on receipt of information or otherwise. 21 While section 157
of the Cr.P.C. authorizes the Police officer to investigate into the facts and circumstances of
the cases if the Police officer has reason to suspect the commission of a cognizable offence. 22
Furthermore, it has held that the omission of the Police to send the report to the magistrate
immediately does not vitiate the trial.23

Moreover, under Section 165 of the Cr.P.C., a Police officer has the power to search a place
within the local limits of the Police station.24In the instant case as well, the investigation was

18
Moot Proposition, ¶ 21.
19
Moot Proposition, ¶ 17.
20
S. 156, The Code of Criminal Procedure, 1973.
21
The State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221.
22
S. 157, The Code of Criminal Procedure, 1973.
23
Anil Rai v. State of Bihar, (2001) 7 SCC 318.
24
S. 165, The Code of Criminal Procedure, 1973.

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carried out by the Superintendent of Police in whose jurisdiction the Legislative Assembly was
situated25. Furthermore, Section 165 also exempts the requirement of a warrant.26 Search is not
limited for some particular article that is stolen or believed to be stolen, but it permits the Police
27
to make search for anything necessary for investigation. In the present case, the Police had
to act urgently in order to protect the evidence from being destroyed and hence act as an
obstacle in meeting the ends of justice. Moreover, the Police on search of the office of the
Petitioner had found out that his official computer was used to access porn websites containing
child pornography and the same had been downloaded28.

Moreover, The Hon’ble SC of India has observed in a catena of decisions that the right to
investigate a cognizable offence is the prerogative of the Police officer 29. Investigation of the
offence is the field exclusively reserved for the Police whose powers in the field are unfettered
so long as the powers are legitimately exercised.30

(1)THE EVIDENCE PROCURED BY THE POLICE IS ADMISSIBLE.

Assuming without admitting that the due procedure was not followed, it has been well
established that non-compliance with the procedural requirements of search would not by itself
vitiate the proceedings but would only amount to an irregularity31. Even if the search is illegal,
it would not vitiate the seizure and the further investigation.32 The deviation from the procedure
does not make the evidence of the seizure inadmissible.33 Moreover, in the case of
Superintendent of Police, C.B.I.34, the Hon’ble SC of India set aside the order of The Hon’ble
Calcutta High Court, wherein documents seized from illegal search were directed to be
returned. In Pooran Mai v. Director of Inspection35, the Hon’ble SC of India held that there
was no constitutional or statutory bar in using such illegally collected evidence. Hence, even

25
Moot Proposition, ¶ 20.
26
State of Punjab v. Makhan Chand, (2004) 3 SCC 453.
27
Emperor v. Paramsukh, AIR 1926 All 147.
28
Moot Proposition, ¶ 22.
29
Hem Raj v. State of Punjab, AIR 2003 SC 4259;
State of Bihar v. P.P. Sharma, AIR 1991 SC 1260.
30
State of Haryana & Ors v. Ch. Bhajan Lal, AIR 1992 SC 604;
Divine Retreat Centre v. State of Kerala, AIR 2008 SC 1614.
31
State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593;
Radhakrishnan v. State of UP, AIR 1963 SC 822.
32
Pratap Singh v. Director of Enforcement, AIR 1985 SC 989.
33
The State of Rajasthan v. Rehman, AIR 1960 SC 210.
34
Superintendent of Police, C.B.I. & Ors. v. Tapan Kr. Singh, AIR 2003 SC 4140.
35
Pooran Mai v. Director of Inspection, AIR 1974 SC 348.

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assuming arguendo that the investigation was made without collecting a warrant from the
magistrate, does not make it a ground to set aside the evidence and dismiss the petition.
Moreover, under section 67-B of the Information Technology Act, 2000, publishing or
transmitting material containing children in sexually explicit act or conduct is a cognizable
offence.36 Further section 80 of the IT Act, empowers a Police officer to enter any public place
and search and arrest, without a warrant, any person who is reasonably suspected of having
committed or about to commit any offence under the act. Hence, in the instant case, the action
of the Police and the Speaker, in allowing for search at the office of Mr. Ozan, was justified
and reasonable because of his previous conduct in the Assembly.

2. THE ‘SEARCH & SEIZURE’ IS NOT VIOLATIVE OF RIGHT TO PRIVACY OF

MR. OZAN.

Art 21 which provides for the Right to Privacy has not been explicitly identified under the
Constitution; the same in any event will necessarily have to go through a process of case-by-
case development37. The matter at hand is no longer res integra, it has been decided by the SC
of India that if an adequate procedural safeguards exist, then the restriction on fundamental
rights is considered valid38. In the instant case the Search & Seizure as undertaken by the Police
is in consonance with the provisions of Section 102 of the Code of Criminal Procedure which
reads as follows: “Any Police officer may seize any property which may be found under
circumstances which create suspicion of the commission of any offence.” Further, the search
and seizure undertaken by the Police is of paramount importance in the instant case as they are
inherently connected with the object of the act of Mr. Ozan.

Moreover, the Hon’ble High Court of Gujarat has held that “When an individual may be in
possession of some material which may create some doubt or suspicion, and in such
circumstances, the authority may have to carry out some investigation before they could
proceed to pass a provisional order. It does not deprive any person of his liberty or his property.
It is necessarily temporary i.e. till the adequate material is collected.”39

36
S. 67(b), The Information Technology Act, 2008.
37
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148.
38
State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5;
Bhavesh Jayanti Lakhani v. State of Maharashtra, AIR 2008 SC 2866.
39
Paresha G Shah v. State of Gujarat, 2016 GLH (1) 329.

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3. THE ACT OF THE PETITIONER BREACHES THE MORALITY CODE OF

CONDUCT.

The Information Technology Bill, tabled in 2009, enables the law enforcement agencies to take
strict action against those seeking child pornography, which even includes browsing for child
pornography. In the instant matter, the Petitioner was caught browsing child pornography and
that too in public while the proceedings of the Assembly were going on40.

Hence, for a MLA to be caught in grave breach of morality law, because of his conduct of
browsing porn website, and that too inside the assembly, he ought to have been scrutinised
fully by the Police and the Speaker. Child pornography is a very sensitive issue and even the
SC of India has strictly stated to ban the websites showing child pornography41 and has even
banned such websites42.

4. THE POLICE HAVE NOT EXCEEDED THEIR POWER IN OBTAINING

INFORMATION FROM THE INTERNET SERVICE PROVIDERS.

It is contended that obtaining the necessary information from the ISP is authorized under the
Cr.P.C43 which allows an organization to disclose personal information to a government
institution. Further the ISPs are governed by The Information Technology Act, 2000 and in the
instant case Section 69 of the IT Act needs to be taken into consideration which provides
powers to issue directions for interception or monitoring of any information through any
computer resource.

Moreover, Section 43A of the IT Act provides for disclosure of information by the body
corporate to any third party. Consent is, however, not required, where disclosure is necessary
for compliance of a legal obligation. Section 43A is subject to certain rules and procedures laid
down by the Official Gazette Notification, 201144. Rule 6 stipulates the mandatory sharing of
information without obtaining prior consent, with Government agencies mandated under the
law to obtain information including sensitive personal data or information for the purpose of
verification of identity, or for prevention, detection, and investigation including cyber

40
Moot Proposition, ¶ 17.
41
Kamlesh Vaswani v. Union of India, W.P. (Cvl.) 177/2013 (Supreme Court, 26/02/2016).
42
Moot Proposition, ¶ 16.
43
S. 91, The Code of Criminal Procedure 1973.
44
Guidelines 313, Information Technology Act, (G.S.R. 313) (E), 2011.

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incidents, prosecution, and punishment of offences. The Police therefore exercised powers
which are well within the framework of the statutes and have not acted ultra-vires.

5. THE ‘SERACH & SEIZURE’ CANNOT BE EXCLUDED DUE TO LEGISLATIVE

PRIVILEGES OF THE PETITIONER.

Members have no explicit immunity as such against orders courts or tribunals or search
warrants, which may be used to obtain access to documents or things held by members. Further,
it is important to note that the immunity from criminal prosecution given to a member either
under Art 105 or Art 194 is only in respect to ‘anything said’ or ‘any vote given’. It would be
stretching the law way too far to hold that this immunity also covers acts done by the members
in their personal capacity namely storing child pornographic clips on the computer, as is the
situation in the present case. This is in total disharmony with the contents and the ideals of the
Constitution of India. Moreover, in the instant matter, the Speaker of the Legislative Assembly
in his responsibility to maintain decorum and dignity of the House, exercised his discretionary
powers to grant permission to the Police to search the office of the petitioner, since his office
was within the premise of Legislative Assembly45 and the Hon’ble SC of India has refrained
itself from the proceedings of legislature46 to maintain the basic feature of the Constitution i.e.
separation of powers.

III. THIS COURT CANNOT PASS A WRIT TO THE ‘STATE’ SEEKING

ENFORCEMENT OF ARTICLE 243T.

This Court cannot pass a writ against in the instant case because (1) A writ against the decision
taken by the governor in exercise of his discretionary powers is not maintainable; (2) The
impugned ordinance approved by the cabinet is violative of fundamental rights of the tribal
people of the State of Anga Pradesh; and (3) The decision of the governor stands the test of
reasonableness and the Wednesbury Principle.

1. THE WRIT AGAINST THE GOVERNOR IS NOT MAINTAINABLE WITH

REGARD TO ARTICLES 361 AND 371A.

45
Moot Proposition, ¶ 20.
46
Supra 1.

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Art 361(1) affords the absolute immunity to the Governor. Further, the discretionary power of
the Governor cannot be challenged by means of a writ petition.47 As a result of which the
Governor is not answerable to any Court for exercise and performance of powers and duties of
his office or for any act done or purporting to be done by him in the exercise of those powers
and duties48. Moreover, a Governor cannot be made a party respondent in the case, either in his
gubernatorial or personal capacity described as being the Governor of a State49, he enjoys total
immunity with regard to the action pertaining to his sole discretion50. Hence, in the instant
matter, the writ against the Governor is not maintainable as it questions the authority of the
Governor’s use of his discretionary powers conferred onto him by the Constitution itself.

Moreover, in context of Art 371A of the Constitution, which is a special provision, it is pointed
out that according to the clause Art 371-A (1)(b)(f), the Governor has the power to act in his
individual judgment, where the decision of the Governor in his discretion shall be final and the
validity of anything done by the Governor shall not be called in question on the ground that he
ought or ought not to have acted in the exercise of his individual judgment which has even been
held by the Hon’ble SC of India in the case of Samsher Singh v. State of Punjab.51

The provisions contained in Art 371A(1)(b) speak of the Special responsibility of the Governor
of Anga-Pradesh with respect to law and order in the State and hence, he has been accorded to
exercise his individual judgment as to the action to be taken in this respect.

2. THE DISCRETIOANRY POWER AFFORDED TO THE GOVERNOR UNDER ART

163(2) CANNOT BE CALLED INTO QUESTIONED.

Under Art 163(2), the discretionary power of the Governor is not only final but cannot be the
subject matter of challenge in the court the matter at hand is no longer res integra as the same
has been decided in the catena of decisions by the SC of India. 52 As a result of which in the
instant case, the Governor by not giving his assent to the impugned ordinance has not acted
ultra-vires of the Constitution.

47
Dr Subramanian Swami v. Deciding Authority & Ors, 1995 CriLJ 3380.
48
Rameshwar Prasad & Ors v. Union of India & Anr, AIR 2006 SC 980.
49
Sunderlal Patwa v. Union of India & Ors, AIR 1993 MP 214.
50
S. Dharmalingam v. His Excellency Governor of State of Tamil Nadu, AIR 1989 MAD 48.
51
Samsher Singh v. State of Punjab & Anr: AIR 1974 SC 2192.
52
Shri Pratapsing Raojirao Rane & Ors v The Governor of Goa & Ors, AIR 1999 BOM 53.

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Furthermore, the scope and ambit of the discretionary power of the Governor must necessarily
be traced from Art 163(2). In as much as, the same cannot be called in question, even by way
of judicial review, on the ground whether the Governor ought or ought not to have acted in his
discretion. The decision of the Governor to not give his assent was of his own independent
discretion. The same enjoys absolute constitutional immunity/protection, which placed the said
order and message beyond the scope of being questioned and the actions of the Governor to
not give his assent to the impugned ordinance are justified by the provisions of the Constitution.

3. THE IMPUGNED ORDINANCE APPROVED BY THE CABINET IS IN

VIOLATION OF VARIOUS CONSTITUTIONAL PROVISIONS.

The impugned ordinance which was approved by the cabinet is violative of Arts 25, 26 and 29
of the Tribal people and the Governor by not giving his assent to the said ordinance has acted
in the general public interest and was bound to maintain the ‘Law and Order’ situation in
Anga-Pradesh. The said ordinance encroaches upon the religious and cultural rights of the
tribes of the State of Anga Pradesh53 as the provisions of the ordinance were seen as a serious
interference with their tribal customary law and procedure.

(1) THE ORDINANCE IS VIOLATIVE OF ARTICLE 25 OR 26.

In the instant case the ordinance passed by the cabinet interferes with the tribal customary law
and procedure54. For which the Constitution has provided safeguards under Art 25 and further
under Art 26.

Art 25 of the Constitution of Indistan gives freedom of conscience and free profession, practice
and propagation of religion55 while Art 26 gives right to every religious denomination or any
section to manage its own affairs in matters of religion56. The above mentioned Arts guarantee
the right to practice and propagate not only matters of faith or belief, but all those rituals,
ceremonies and observations which are regarded as integral part of their religion 57 and on
deciding as to whether a religious practice is an integral part of a religion or no, the test will
always be whether it is regarded as such by the community following the religion or not58 and

53
Moot Proposition,¶ 7.
54
Moot Proposition,¶ 7.
55
Article 25(1), The Constitution of India, 1950.
56
Article 26(b), The Constitution of India, 1950.
57
Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476.
58
Govindlalji Maharaj, Tilkayat Shri v. State of Rajasthan, AIR 1963 SC 1638 (1660);
Varu Digyadarshan Rajendra Ramdassji v. State of U.P., AIR 1970 SC 181.

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not according to the version of the person who opposes59. Moreover, no outside authority (e.g.
legislature or the executive) has any jurisdiction to interfere with their decision in such matter60
and the cabinet by passing an ordinance which imposes an unjustified restriction on the
fundamental rights of the tribal bodies has acted ultra-vires.

Furthermore, customary and cultural rights of indigenous people have also been the subject
matter of various international conventions for instance The International Labor Organization
(ILO) Convention on Indigenous and Tribal Populations Convention, 1957 (No.107)
emphasized on the necessity for the protection of social, political and cultural rights of
indigenous people of which Indistan is a signatory.

The Petitioner may suggest that the religious rights of the Tribal people may be restricted in
favour of a law that purports to be in public interest. However, this restriction, in the instant
case, in not in pursuance of “public order, morality and health and any other fundamental
right”61 and hence, impermissible.

(2) THE ORDINANCE IS VIOLATIVE OF ARTICLE 29.

The impugned ordinance also infringes upon the Cultural rights under Art 29 of the
Constitution of Indistan62 as it provides for any section of the citizens residing in the territory
of India or any part thereof having a distinct language, script or culture of its own, a right to
conserve the same and the tribes are unique in character with their own customs, language and
dress63 and it has been held by the SC of India that Art 29(1) extends to ‘any section of citizens’
whether they belong to minority or majority community,- the only condition being that such
section must have a distinct language, script64 or culture of its own65.

(3) VIOLATIVE OF CONSTITUTIONAL OBLIGATIONS UNDER ARTICLE 371A.

59
Gulam Abbas v. State of U.P., AIR 1981 SC 2198.
60
Commr. H.R.E. v. Lakshmindra Thiratha Swamiar, AIR 1954 SC 282;
Jagadishwaranand Avadhuta, Acharya v. Commr. of Police, Calcutta, AIR 1984 SC 51.
61
Article 26, The Constitution of India, 1950.
62
Article 29(1), The Constitution of India, 1950.
63
Moot Proposition,¶ 2.
64
Cf. D.A.V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737;
T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355.
65
Suresh Chandra Chimanlal Shah v. Union of India, AIR 1975 DeL 168.

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The State of Anga-Pradesh enjoys special status under Art 371A of the Constitution, the same
has been provided because of prevalence of strong feelings regarding their customs66 as a result
of which they are treated separately and not like the rest of the country. Furthermore under the
shield of Art 371A no act of parliament would be applicable to the State of Anga- Pradesh and
since Art 243T is an act of the parliament it would fall under the similar ambit.

Moreover Art 243T should be read along with Art 243ZC which provides, Nothing in this Part
shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in
clause (2), of Art 244 and that the State of Anga-Pradesh being a Scheduled Area, falls under
the ambit of the V schedule of the Constitution it hence, is barred from these constitutional
obligations.

4. DECISION OF THE GOVERNOR DOES NOT VIOLATE THE FUNDAMENTAL

RIGHTS ENSHRINED UNDER ARTICLES 15 AND 16.

The decision of the Governor to not to give assent to the said ordinance was constitutionally
permitted under Art 371A as it is the duty of the Governor to maintain “law and order” in the
State of Anga Pradesh for which he is granted discretionary powers. Moreover, the provisions
contained in Art 15 and 16 are merely enabling provisions and no citizen of Indistan can claim
reservation as a matter of right and no writ can be issued67 accordingly in the matter. Hence the
decision of the Governor is backed by reason and does not suffer from the vice of arbitrariness.

5. THE DECISION OF THE GOVERNOR SATISFIES THE WEDNESBURY

PRINCIPLE.

It was held in the famous Wednesbury case68 by Lord Green that that when a statute gives
discretion to an administrator to take a decision, the scope of judicial review would remain
limited. This view was articulated by the SC of India in Union of India and Anr. vs. G.
Ganayutham69 where it was held that, to judge the validity of any administrative order or
statutory discretion, the Wednesbury test is to be applied to find out if the decision was illegal
or suffered from procedural improprieties or was one which no sensible decision-maker could,

66
Moot Proposition,¶ 3.
67
A.P. Public Service Commission v. Baloji Badhavath, (2009) 5 SCC 1.
68
Associated Provincial Picture Houses Ltd v Wednesbury Corp, 2 All ER 680 (1947, Court of Appeal of England
and Wales).
69
Ibid.

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on the material before him and within the framework of the law arrive at. In the instant case,
the decision of the Governor didn’t violate any of the above conditions because the decision
was made within the purview of power allocated to him by the Constitution under Art 371A to
maintain law and order. Moreover, the decision was taken after taking into consideration all
the relevant factors. Further any reasonable man would have arrived onto the similar conclusion
so as to maintain peace in the state and to bring an end to the protests in the state70. Since there
was a rational nexus on which the decision had been taken with an object sought to be
achieved71 i.e. to bring peace and put an end to the protests which had made life miserable for
people, it does not suffer from the vice of being unreasonable and hence, is not violative of Art
14.

6. THE PRINCIPLE OF GENERALIA SPECIALIBUS NON DEROGANT MUST BE

FULFILLED.

The Latin maxim “Generalia Specialibus Non Derogant” literally means that ‘the provisions
of a general statute must yield to those of a special one’. This maxim is a restatement of the
principle “Lex Specialis Derogat Legi Generali”72 which means that ‘special law repeals
general law’. Art 371A is a special provision applicable to the State of Anga Pradesh while Art
243T is a general provision applicable for whole of Indistan and it is a settled law that a special
provision should be given effect to the extent of its scope, leaving the general provision to
control cases where the special provision does not apply73. In the case of South India
Corporation, it was held that the general provision under Art 372 of the Constitution regarding
continuance of existing laws is subject to Art 277 of the Constitution, which is a special
provision. Hence, in the instant case as well, this Hon’ble Court must allow for the special
provision under Art 371A to have effect over Art 243T.

PRAYER

70
Moot Proposition,¶ 8.
71
Union of India v. M.V. Valliappan, AIR 1999 SC 2526.
72
Anvar P.V. v. P. K. Basheer, AIR 2015 SC 180.
73
South India Corporation(P) Ltd. v. Secretory, Board of Revenue, Trivendrum, 1964 AIR 207;
State of Gujarat & Anr. v. Patel Ramjibhai Dhanbhai & Ors., 1979 AIR 1098.

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Wherefore in light of the issues raised, arguments advanced and the authorities cited, the state
of Anga-Pradesh most respectfully prays that:

a. The Writ Petition filed under Article 32 of the Constitution by Mr. Hobart be
dismissed and the rules prohibiting ‘Live Telecast’ of the business of the house be
upheld.
b. The Special Leave Petition filed under Article 136 of the Constitution by Mr. Ozan
be dismissed and the decision of Hon’ble High Court of Anga-Pradesh be upheld.
c. The writ filed under Article 32 by Participation & Emancipation of Women (PEW)
be dismissed.

And pass any such order, writ or direction as this Hon’ble Court deems fit and proper for which
the Respondent shall duty bound forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

______________________________________
______________________________________

COUNSEL FOR THE RESPONDENT

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