CLINICAL COURSE MOOT COURT 2021 TEAM CODE - N

CLINICAL COURSE MOOT COURT 2023

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF SECTION 15 OF THE CONTEMPT OF COURTS ACT, 1971 AND ARTICLE
129 & ARTICLE 142 OF THE CONSTITUTION OF INDIA

CONTEMPT PETITION (CRL.) NO. 9 OF 2009

IN THE MATTER CONCERNING SECTIONS 2(C), 12, 13, 15 OF THE CONTEMPT OF COURTS
ACT, 1971 AND ARTICLE 19(1)(A) OF THE CONSTITUTION OF INDIA

Indirect Tax Practitioners Association Petitioner

v.

R.K. Jain Respondent

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE APPELLANT

 CLINICAL COURSE MOOT COURT 2023

TABLE OF CONTENTS

Index of Authorities ............................................................................................................ 1

Statement of Jurisdiction .................................................................................................... 2

Statement of Facts ............................................................................................................... 4

Statement of Issues .............................................................................................................. 6

Summary of Arguments ...................................................................................................... 7

Arguments Advanced .......................................................................................................... 8

I. THE CONTENTS OF THE EDITORIAL, WHICH WAS PUBLISHED IN EXCISE

LAW TIMES DATED 1.6.2009 WITH THE TITLE “CESTAT PRESIDENT SETS
HOUSE IN ORDER – ANNUAL TRANSFERS FOR MEMBERS INTRODUCED -
REGISTRY IN LINE”, CONSTITUTE CRIMINAL CONTEMPT WITHIN THE
MEANING OF SECTION 2(C) OF THE CONTEMPT OF COURTS ACT, 1971. ........... 8

A. The freedom of speech and expression provided under Art. 19(1)(a) of the
Constitution is not an absolute right and can be curtailed by the State. ........................... 8

B. The content of the editorial falls within the ambit of criminal contempt as
provided under Sec. 2(c) of the Contempt of Courts Act, 1971 and the content
particularly scandalizes the authority of the institution and also directly interferes with
the administration of justice. ........................................................................................ 11

II. THE RESPONDENT BY WRITING THE EDITORIAL VIOLATED THE

UNDERTAKING FILED IN THIS COURT IN CONTEMPT PETITION (CRIMINAL)
NO. 15 OF 1997. ............................................................................................................. 12

A. The respondent had not provided reasonable time and opportunity to the
concerned authorities to take action in respect of the letters written by him and therefore
has failed to comply with the terms of the undertaking. ............................................... 12

Prayer for Relief ................................................................................................................ 14

MEMORIAL ON BEHALF OF THE PETITIONER

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INDEX OF AUTHORITIES

CASES

1) Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215,230 ................................. 10

2) Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551,552 ......................... 11
3) C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626,628 ........................................................ 9
4) DDA v. Skipper Construction, (1995) 3 SCC 507,512 ...................................................... 9
5) Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171,183 .............................................. 9
6) Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529,545 ...................................... 10
7) R.K. Jain v. Union of India (1997) 8 SCC 119 ................................................................ 12
8) Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508,510 ............................... 10
9) Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714,715 ..................................... 10
10) Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714,721 ..................................... 10
11) W.B. Administrative Tribunal v. S.K. Monobbor Hossain, (2012) 11 SCC 761,763.......... 9

LEGISLATIONS

1) The Constitution of India, 1950.

2) The Contempt of Courts Act, 1971.

BOOKS

1) Surendra Malik and Sudeep Malik, Supreme Court on Contempt of Court (1950 to 2019)
(2nd edn, Eastern Book Company 2019).
2) Asim Pandya, The Law of Contempt of Court (3rd edn, Eastern Book Company 2023).
3) HM Seervai, Constitution Law of India, (4th edn, Universal 2015).
4) MP Jain, Indian Constitutional Law (Justice Jasti Chelameswar and Justice Dama
Seshadri Naidu Eds, 8th edn, Lexisnexis 2018).

LEGAL DATABASES

1) SCC Online.
2) Manupatra.
3) HeinOnline.

OTHER AUTHORITIES

1) Black’s Law Dictionary (11th edn 2019).

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has jurisdiction to hear the instant matter under Section
15 of Contempt of Courts Act and Article 129 of the Constitution of India.

Section 15 of The Contempt of Courts Act, 1971 reads as -

“Cognizance of criminal contempt in other cases. —

(1) In the case of a criminal contempt, other than a contempt referred to in section 14, the
Supreme Court or the High Court may take action on its own motion or on a motion made
by—

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate-General, [or]

[(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the
Central Government may, by notification in the Official Gazette, specify in this behalf, or any
other person, with the consent in writing of such Law Officer.]

(2) In the case of any criminal contempt of a subordinate court, the High Court may take
action on a reference made to it by the subordinate court or on a motion made by the
Advocate-General or, in relation to a Union territory, by such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of which the
person charged is alleged to be guilty.

Explanation. — In this section, the expression “Advocate-General” means, —

(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;

(b) in relation to the High Court, the Advocate-General of the State or any of the States for
which the High Court has been established;

(c) in relation to the court of a Judicial Commissioner, such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf”1

Article 129 of The Indian Constitution reads as -

“Supreme Court to be a court of record –

1
The Contempt of Courts Act, 1971 (Act No.70 of 1971) s.15.

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The Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself”2

Article 142 of The Indian Constitution reads as –

Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc–

“(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it, and
any decree so passed or orders so made shall be enforceable throughout the territory of India
in such manner as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court
shall, as respects the whole of the territory of India, have all and every power to make any
order for the purpose of securing the attendance of any person, the discovery or production
of any documents, or the investigation or punishment of any contempt of itself”3

2
The Constitution of India, 1950 art 129.
3
The Constitution of India, 1950 art 142.

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STATEMENT OF FACTS

1. The respondent, through an editorial published in Excise Law Times on 1-6-2009,

allegedly violated an undertaking filed in Contempt Petition (Criminal) No. 15 of
1997 in this Court. the relevant portions of which are reproduced below:
“I realize that my approach and wordings in the Impugned Editorials of ELT have
given the impression of scandalising or lowering the authority of CEGAT. I state that
I had no such intention as I had undertaken the exercise in good faith and in public
interest. I sincerely regret the writing of the said Editorials which have caused such
an impression.”
“That I have been advised by my senior counsel - Mr. Shanti Bhushan that in future
whenever there are any serious complaints regarding the functioning of CEGAT, the
proper course would be to first bring those matters to the notice of the Chief Justice of
India, and/or the Ministry of Finance and await a response or corrective action for a
reasonable time before taking any other action. I undertake to the court to abide by
this advise of my counsel in future.”
2. During the pendency of the aforementioned contempt case, the respondent had written
detailed letters to the Finance Minister, Government of India highlighting specific
cases of irregularities, malfunctioning and corruption in the Central Excise, Customs
and Service Tax Appellate Tribunal (CESTAT). The respondent pointed out how the
appointment and posting of Shri T.K. Jayaraman, Member CESTAT were irregular.
3. Since no one seems to have taken cognizance of the letters written by the respondent,
he wrote the editorial in which he commended the administrative and judicial reforms
initiated by the new President of CESTAT and, at the same time, highlighted how
some members of CESTAT managed their stay at particular place.
4. He also made a mention of what he perceived as irregularities in the appointment and
posting of Shri T.K. Jayaraman, erstwhile Commissioner of Central Excise, Bangalore
as member CESTAT.
5. The respondent then referred to some of the orders passed by the Bench comprising
Shri T.K. Jayaraman, which were adversely commented upon by the High Courts of
Karnataka and Kerala. He also made a mention of the irregularities in the functioning
of the Registry of CESTAT.

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6. By an order dated 16.7.2009, the President, CESTAT appointed a two-member

committee to look into the grievance made by the petitioner as also the allegations
contained in the editorial.
7. Soon thereafter, the Inquiry Committee informed the parties that it would meet at
Bangalore on 11.8.2009 but President of the petitioner - association expressed his
inability to attend the meeting and sought re-schedulment for 28/29.8.2009.
8. In furtherance of this object, the petitioner sent letters dated 8.8.2009 and 25.8.2009 to
the Solicitor General of India and the Attorney General of India respectively seeking
their consent for filing contempt petition against the respondent. In neither of those
letters, the petitioner made a mention of the Inquiry Committee constituted by the
President, CESTAT to look into the complaint made by it. The Attorney General gave
his consent vide letter dated 9.9.2009. Thereafter, this petition was filed.

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STATEMENT OF ISSUES

The following issues have arisen for consideration before the Hon’ble Supreme Court –

I. Whether contents of the editorial, which was published in Excise Law Times
dated 1.6.2009 with the title “CESTAT PRESIDENT SETS HOUSE IN ORDER
– ANNUAL TRANSFERS FOR MEMBERS INTRODUCED - REGISTRY IN
LINE”, constitute criminal contempt within the meaning of Section 2(c) of the
Contempt of Courts Act, 1971?
II. Whether by writing the editorial the respondent violated the undertaking filed in
this Court in Contempt Petition (Criminal) No. 15 of 1997?

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SUMMARY OF ARGUMENTS

I. The contents of the editorial, which was published in Excise Law Times dated
1.6.2009 with the title “CESTAT PRESIDENT SETS HOUSE IN ORDER –
ANNUAL TRANSFERS FOR MEMBERS INTRODUCED - REGISTRY IN
LINE”, constitute criminal contempt within the meaning of Section 2(c) of the
Contempt of Courts Act, 1971.

It is humbly contended before the Hon’ble Supreme Court that the contents of the
editorial written by the respondent constitute criminal contempt under Sec. 2(c) of the
Contempt of Courts Act, 1971. Firstly, it is submitted that the freedom of speech and
expression provided under Art. 19(1)(a) of the Constitution is not an absolute right and
can be curtailed by the State. Secondly, the content of the editorial falls within the ambit
of criminal contempt as provided under Sec. 2(c) of the Contempt of Courts Act, 1971
and the content particularly scandalizes the authority of the institution and also directly
interferes with the administration of justice. It is also contended that respondent violates
the thin line difference between fair criticism and vilification of judicial institution. The
moment respondent breaches this line his freedom of speech and expression ends and he
is liable for contempt.

II. The respondent by writing the editorial violated the undertaking filed in this
Court in Contempt Petition (Criminal) No. 15 of 1997.

It is humbly contended before the Hon’ble Supreme Court that the respondent violated
the undertaking filed by him in this court in contempt petition (criminal) no. 15 of 1997.
It is submitted that the respondent had not provided reasonable time and opportunity to
the concerned authorities to take action in respect of the letters written by him and
therefore has failed to comply with the terms of the undertaking.

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ARGUMENTS ADVANCED

1. The PETITIONER has filed this petition before the Hon’ble Supreme Court of India
against the respondent. It is humbly submitted by the petitioner that the contents of the
editorial, which was published in Excise Law Times dated 1.6.2009 with the title
“CESTAT PRESIDENT SETS HOUSE IN ORDER – ANNUAL TRANSFERS FOR
MEMBERS INTRODUCED - REGISTRY IN LINE”, constitute criminal contempt
within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 [I]. And the
respondent by writing the editorial violated the undertaking filed in this Court in
Contempt Petition (Criminal) No. 15 of 1997 [II].

I. THE CONTENTS OF THE EDITORIAL, WHICH WAS PUBLISHED IN

EXCISE LAW TIMES DATED 1.6.2009 WITH THE TITLE “CESTAT
PRESIDENT SETS HOUSE IN ORDER – ANNUAL TRANSFERS FOR
MEMBERS INTRODUCED - REGISTRY IN LINE”, CONSTITUTE
CRIMINAL CONTEMPT WITHIN THE MEANING OF SECTION 2(C) OF
THE CONTEMPT OF COURTS ACT, 1971.
2. It is humbly contended before the Hon’ble Supreme Court that the contents of the
editorial written by the respondent constitute criminal contempt under Sec. 2(c) of the
Contempt of Courts Act, 1971. Firstly, it is submitted that the freedom of speech and
expression provided under Art. 19(1)(a) of the Constitution is not an absolute right and
can be curtailed by the State. Secondly, the content of the editorial falls within the ambit
of criminal contempt as provided under Sec. 2(c) of the Contempt of Courts Act, 1971
and the content particularly scandalizes the authority of the institution and also directly
interferes with the administration of justice.

A. The freedom of speech and expression provided under Art. 19(1)(a) of the
Constitution is not an absolute right and can be curtailed by the State.
3. It is humbly submitted before the Hon’ble Supreme Court that a contempt is to protect the
institution and to prevent interference in the course of justice. Undermining the majesty of
the institution or undermining the authority that is vested in Judges is a very important
take away. Contempt crosses a line from legitimate criticism of a ruling and goes into
whole different area. Legitimate criticism of ruling is permissible but on the other hand

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we must draw the line where it becomes abusive, irrational, personal attacks on Judges
that undermines the entire integrity of the institution. 4
4. It is very conflicting in nature and difficult to understand that whether the law relating to
the contempt of court is somewhere touches two important fundamental rights of the
citizen, namely, the right to personal liberty and the right to freedom of speech and
expression or not5? There is a very thin line between criticism and vilification. One of the
basic principles of independence is that you are free to do anything which does not
intervene in my independence.6 The same goes to determine whether it is a contempt or
not? If you are criticising, it is valid but if you are vilifying or tried to degrade the
integrity of the institution then it is a contempt.
5. It is further submitted that scandalising a Judge as a Judge is different from scandalising a
Judge as an individual. The abovementioned assertions bring both freedom of speech and
expression and contempt of court, in conflict, on one side of the coin, freedom of fairly
and reasonably criticising judiciary increases its accountability but on the other side of the
coin, the power of punishing contempt of court ensures free and non-obstructed
administration of justice.7
6. When the proceedings are taken for vilification of the Judge, the question which the Court
has to determine is whether the vilification is of the Judge as a Judge or it is a vilification
of a Judge as an individual. 8 That if the vilification of the Judge is as an individual, then
he is left to his private remedies and the Court has no power to punish for contempt. In
the former case, the Court will proceed to exercise the jurisdiction with scrupulous care
and in cases which are clear and beyond reasonable doubt.
7. A distinction is to be drawn between a mere libel or defamation of a Judge personally and
what amounts to a contempt of court. A mere defamatory attack on a Judge is not
actionable but it becomes punishable when it is calculated to interfere with the due course
of justice, or the proper administration of law by the Court. 9 Alternatively, the test is
whether the wrong is done to the Judge personally, or it is done to the public.
8. A fair, reasonable, temperate and legitimate criticism of the judiciary, or of the conduct of
a Judge in his judicial capacity is permissible. A contempt is to protect the institution and

4
C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626,628.
5
HM Seervai, Constitution Law of India, (4th edn, Universal 2015).
6
W.B. Administrative Tribunal v. S.K. Monobbor Hossain, (2012) 11 SCC 761,763.
7
DDA v. Skipper Construction, (1995) 3 SCC 507,512.
8
Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171,183.
9
Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529,545.

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to prevent interference in the course of justice. Undermining the majesty of the institution
or undermining the authority vested in Judges is a very important take away. 10
9. It is contended that contempt crosses a line from legitimate criticism of a ruling and goes
into a whole different area. Legitimate criticism of a ruling is permissible and on the other
hand we must draw the line where it becomes abusive, irrational, personal attacks on
Judges that undermines the entire integrity of the institution. That has to be where we
stop, that is where the freedom of speech ends. 11
10. Anything that/which undermines the institution rather than criticises the institution that is
where you cross the bounds of legitimacy. Although Section 5 of the Contempt of Courts
Act, 1971 states that fair and reasonable criticism is not to be termed as a contempt of
court.12 A person shall not be guilty of contempt of court for publishing any fair comment
on the merits of any case which has been heard and finally decided. 13 Judgments are open
to criticism that must be done without casting aspersions on the Judges and the courts and
without adverse comments amounting to scandalising the courts.
11. Actual interference with the course of administration of justice is not necessary, it is
enough if the offending publication is likely on if it tends in any way to interfere with the
proper administration of law. 14 In the free market place of ideas criticisms about the
judicial system or the Judges should be welcomed, so long as criticisms do not impair or
hamper the administration of justice. 15
12. As one should know where to stop and when to stop, as there is a very thin line difference
between criticism and vilification. If one has the right to freedom of speech and
expression as their fundamental right on one side then he has the duty/obligation to
maintain dignity and integrity of the institution on the other side, as the freedom of speech
and expression is not an absolute right it can be taken away in case someone tries to cross
the justifiable limit permitted by the law of land. 16
13. Therefore, it is humbly submitted before this Hon’ble Court that respondent violates the
thin line difference between fair criticism and vilification of judicial institution. The

10
Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508,510.
11
Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714,721.
12
Asim Pandya, The Law of Contempt of Court (3rd edn, Eastern Book Company 2023).
13
Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714,715.
14
MP Jain, Indian Constitutional Law (Justice Jasti Chelameswar and Justice Dama Seshadri Naidu eds, 8th edn,
LexisNexis 2018).
15
Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215,230.
16
Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551,552.

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moment respondent breaches this line, his freedom of speech and expression ends and he
is liable for contempt.

B. The content of the editorial falls within the ambit of criminal contempt as
provided under Sec. 2(c) of the Contempt of Courts Act, 1971 and the content
particularly scandalizes the authority of the institution and also directly
interferes with the administration of justice.
14. It is humbly submitted before the Hon’ble Supreme Court that the editorial written by the
respondent is clearly intended to scandalize the functioning of CESTAT and, therefore,
this Court should take cognizance and initiate proceedings against him under Sections
2(c), 12 and 15 of the Act read with Article 129 of the Constitution because contents of
the editorial amount to criminal contempt as adverse and uncharitable comments made by
the respondent qua some of the orders passed by the particular Bench of CESTAT
amounts to direct interference in the administration of justice and the same are bound to
affect the credibility of the Tribunal17 in the eyes of the public in general and the litigants
in particular who will have no confidence in the particular member of CESTAT and those
appearing before the particular Bench will not be able to represent the cause of their
clients with the freedom which is sine qua non for dispensation of justice.
15. The word ‘scandalize’ has not been defined in the Act. In Black’s Law Dictionary, the
word scandal has been described as under:
“Scandal consists in the allegation of anything which is unbecoming the dignity of the
court to hear, or is contrary to decency or good manners, or which charges some person
with a crime not necessary to be shown in the cause, to which may be added that any
unnecessary allegation, bearing cruelty upon the moral character of an individual, is also
scandalous. The matter alleged, however, must not only be offensive but also irrelevant to
the cause, for however offensive it be, if it is pertinent and material to the cause, the party
has right to plead it. It may often be necessary to charge false representations, fraud and
immorality, and the pleading will not be open to the objection of scandal, if the facts
justify the charge.”18
16. The editorial in question will not only create a sense of fear and inhibition 19 in the minds
of the members who are entrusted with the onerous task of dispensing justice, but also

17
Surendra Malik and Sudeep Malik, Supreme Court on Contempt of Court (1950 to 2019) (2nd edn, Eastern
Book Company 2019).
18
Black’s Law Dictionary (11th edn 2019).
19
Id.

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prevent the advocates and practitioners who appear before CESTAT from advancing the
cause of their clients without any apprehension of bias/favouritism20. It is also pleaded
that by targeting the particular member of CESTAT, the respondent has scandalized the
entire institution.

II. THE RESPONDENT BY WRITING THE EDITORIAL VIOLATED THE

UNDERTAKING FILED IN THIS COURT IN CONTEMPT PETITION
(CRIMINAL) NO. 15 OF 1997.
17. It is humbly contended before the Hon’ble Supreme Court that the respondent violated
the undertaking filed by him in this court in contempt petition (criminal) no. 15 of 1997.
It is submitted that the respondent had not provided reasonable time and opportunity to
the concerned authorities to take action in respect of the letters written by him and
therefore has failed to comply with the terms of the undertaking.

A. The respondent had not provided reasonable time and opportunity to the
concerned authorities to take action in respect of the letters written by him and
therefore has failed to comply with the terms of the undertaking.
18. It is humbly submitted before the Hon’ble Supreme Court that in the previous
proceedings 21 the respondent filed an undertaking, the relevant portions of which are
reproduced below:
“I realize that my approach and wordings in the Impugned Editorials of ELT have given
the impression of scandalising or lowering the authority of CEGAT. I state that I had no
such intention as I had undertaken the exercise in good faith and in public interest. I
sincerely regret the writing of the said Editorials which have caused such an impression.
That I have been advised by my senior counsel - Mr. Shanti Bhushan that in future
whenever there are any serious complaints regarding the functioning of CEGAT, the
proper course would be to first bring those matters to the notice of the Chief Justice of
India, and/or the Ministry of Finance and await a response or corrective action for a
reasonable time before taking any other action. I undertake to the court to abide by this
advise of my counsel in future.”
19. That the editorial written by him is in clear violation of the undertaking given to this
Court that serious complaint regarding the functioning of the Tribunal will be brought to

20
Asim Pandya, The Law of Contempt of Court (3rd edn, Eastern Book Company 2023).
21
R.K. Jain v. Union of India (1997) 8 SCC 119.

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the notice of the Chief Justice of India, and/or the Ministry of Finance and response or
corrective action will be awaited for a reasonable time 22 before taking further action.

22
Supra Note 11.

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PRAYER FOR RELIEF

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED, THIS COURT MAY BE PLEASED TO:

1. Hold that respondent is guilty under section 2(c), 12 and 15 of Contempt of Courts
Act, 1971.
2. Hold that the respondent is guilty of violating the terms of undertaking which was
filed in this Court in Contempt Petition (Criminal) No. 15 of 1997.

AND/OR

PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT THIS COURT MAY BE
PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

Sd/-
COUNSELS ON BEHALF OF THE PETITIONER

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