SHRI C.K. DAPHTARY AND ORS. V. SHRI O.P. GUPTA AND ORS.

IN THE SUPREME COURT OF INDIA

IN THE MATTER OF

APPELLANTS: SHRI C.K. DAPHTARY AND ORS.

V.

RESPONDENT: SHRI O.P. GUPTA AND ORS.

MEMORANDUM ON BEHALF OF THE RESPONDENT

DATE OF SUBMISSION : 6TH APRIL, 2017

COUNSEL FOR RESPONDENT

TOSHAN CHANDRAKAR

ROLL NO. – 182

SECTION - A

SEM – IV

Memorial on behalf of the Respondent

 SHRI C.K. DAPHTARY AND ORS. V. SHRI O.P. GUPTA AND ORS.

TABLE OF CONTENTS

INDEX OF AUTHORITIES I

STATEMENT OF FACTS II

ISSUES RAISED III

SUMMARY OF ARGUMENTS IV

ARGUMENTS ADVANCED V

1. Petition filed before the court is not maintainable.

2. The law relating to contempt of Court imposes unreasonable restriction on freedom of
speech and expression guaranteed under Article 19(1)(a).
3. The passages extracted from the pamphlet, read as a whole, does not constitute
contempt of the Supreme Court of India.

PRAYER FOR RELIEF VIII

Memorial on behalf of the Respondent

 INDEX OF AUTHORITIES

STATUTES

1. CONSTITUTION OF INDIA.

CASES

2. Maneka Gandhi v. Union of India

3. RC Cooper v. Union of India
4. Dharam Dutt and Ors. V. Union of India (UOI) and Ors

BOOKS/COMMENTARIES REFERRED

5. V N Shukla’s Constitution of India, Mahendra Pal Singh, Eastern Book Company, 12th
Edition, 2016.
6. Indian Constitutional Law, M P Jain, Lexis Nexis Publishers, 7th Edition, 2014.

I
Memorial on behalf of the Respondent
 STATEMENT OF FACTS

A civil appeal was filed in the Supreme Court by the State of U.P. against the judgment of the
High Court of Allahabad whereby the High Court had held that the order of dismissal from
service passed against respondent No.1, O.P. Gupta, was invalid. This appeal came up for
hearing before the apex court on various occasions and was ultimately heard by a Bench
consisting of Shah J as he then was and Hegde J., on October 15, 1969 and October 16, 1969.
The appeal was first heard on February 22, 1969 by Hidayatullah C.J., and another Hon’ble
Judge, but later on it was heard, as already stated, by Shah and Hegde, JJ, and the judgment was
delivered on October 28, 1969 by Hegde, J.

Respondent No. 1, wrote and got printed and published, by and through Respondent No. 2, a
pamphlet which though ostensibly meant for the convenient use of Members of Parliament was
actually widely circulated and was made available for sale.

II
Memorial on behalf of the Respondent
 ISSUES RAISED

1. WHETHER THE PETITION FILED IS MAINTAINABLE?

2. WHETHER THE LAW RELATING TO CONTEMPT OF COURT IMPOSES UNREASONABLE

RESTRICTION ON FREEDOM OF SPEECH AND EXPRESSION GUARANTEED UNDER ARTICLE
19(1)(A)?

3. WHETHER THE PASSAGES EXTRACTED FROM THE PAMPHLET, READ AS A WHOLE,

CONSTITUTES CONTEMPT OF THE SUPREME COURT OF INDIA?

III
Memorial on behalf of the Respondent
 SUMMARY OF ARGUMENTS

1. PETITION FILED BEFORE THE HONOURABLE COURT IS NOT MAINTAINABLE.

It is humbly submitted that the petition filed before the Hon’ble Supreme Court is not
maintainable under Article 129 as the rights of the respondents are protected under
Article 19(1) of the Constitution of India, 1950 which entitles to every person the right to
freedom of speech and expression.

2. THE LAW RELATING TO CONTEMPT OF COURT IMPOSES UNREASONABLE

RESTRICTION ON FREEDOM OF SPEECH AND EXPRESSION GUARANTEED UNDER
ARTICLE 19(1)(A).

It is most humbly submitted that the law relating to contempt of Court in India cannot be
imposed and constitute to be an unreasonable restriction on freedom of speech and
expression as guaranteed under Article 19(1)(a).

3. THE PASSAGES EXTRACTED FROM THE PAMPHLET, READ AS A WHOLE, CONSTITUTE

GROSS CONTEMPT OF THE SUPREME COURT OF INDIA.

It is submitted that the passages extracted from the pamphlet, read as a whole, does not
constitute contempt of the Supreme Court of India as the act of the respondent is not
combined with the respondents intention to weaken the confidence of the people in the
court. Rather, it constitutes to only a healthy discussion on a public platform and is
protected under the term ‘expression’ of the right to freedom of speech and expression.

IV
Memorial on behalf of the Respondent
 ARGUMENTS ADVANCED

1. PETITION FILED IS NOT MAINTAINABLE

It is humbly submitted that the petition filed before the Hon’ble Court is not maintainable. The
respondent pleads the right conferred by the founding fathers for the protection of the citizen’s
right to freedom of speech and expression.

Article 19(1)(a) reads as ‘All citizens shall have the right to freedom of speech and expression’.

The counsel submits that the freedom of expression is the bulwark of democratic government.
The term government here does not mean only the legislative branch of the system but includes
the judiciary as well as the executive bodies. Together all three constitute the government and is
entitled with the duty to protect the basic fundamental rights of the citizen of India.

In the present case, the respondent merley excercised his right of freedom of speech and
expression grievously hurt by the decision of the Hon’ble Supreme Court. The intention and the
action was and is in no way to disregard, demean or defame the reputation of the court or the
judges.

In Maneka Gandhi v. Union of India,1 Bhagwati, J has emphasised on the significance of the
freedom of speech and expression in these words:

“Democracy is based essentially on free debate and open discussion, for that is the only
corrective of Governmental action in a democratic set up. If democracy means government of the
people by the people, it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential.”

Therefore, it is contended that the petition should not be held maintainable.

1
MANU/SC/0133/1978 : AIR 1978 SC 597 : (1978) 1 SCC 248

V
 2. THE LAW RELATING TO CONTEMPT OF COURT IMPOSES UNREASONABLE
RESTRICTION ON FREEDOM OF SPEECH AND EXPRESSION GUARANTEED UNDER
ARTICLE 19(1)(A).

It is contended before this Honorable Court that the law relating to contempt of court as provided
in the Constitution does imposes unreasonable restriction on freedom of speech and expression
as guaranteed under Article 19(1)(a) the violation of which shall also threaten the violation of
rights entitled to the respondent under Article 14 and 21 of the Constitution of India.

Article 19(1)(a) reads as ‘All citizens shall have the right to freedom of speech and expression’.

“Out of the several rights enumerated in Clause (1) of Article 19, the right at Sub-clause (a) is
not merely a right of speech and expression but a right to freedom of speech and expression. The
enumeration of other rights is not by reference to freedom.”2

In RC Cooper v. Union of India,3 it was held “A distinction is drawn between a mere libel or
defamation of a Judge personally and what amounts to a contempt of the court. A mere
defamatory attack on the judge is not actionable. Alternatively, the test is whether the wrong is
done to the judge personally, or it is done to the public.”

Article 14 states: “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.”

Article 21 protects the right to life and personal liberty and states: “No person shall be deprived
of his life or personal liberty except according to procedure established by law”.

The relationship between the three rights enumerated in the constitution if India as been well
established in Maneka Gandhi v. Union of India where this hon’ble court accepted that the three
articles or the rights make a golden triangle and cannot be treated differently but are to be read
together and that the violation of one would mean the violation and infringement of other rights
as well.

2
Dharam Dutt and Ors. V. Union of India (UOI) and Ors, MANU/SC/0970/2003 : (2004) 1 SCC 712
3
MANU/SC/0074/1970 : AIR 1970 SC 1318 : (1970) 2 SCC 298

VI
It is most humbly submitted that the pamphlet was published in order to bring the truth to the
people and was substantially correct. Article 361-A protects the same. There was no malice in
the words used by the respondent against the Supreme Court in the said pamphlet.

3. THE PASSAGES EXTRACTED FROM THE PAMPHLET, READ AS A WHOLE, DOES NOT
CONSTITUTE GROSS CONTEMPT OF THE SUPREME COURT OF INDIA.

It is contended before the Hon’ble Court that the passages extracted, read as a whole, does not
constitute gross contempt of the court and the judges.

Contempt of Court is not committed if a person publishes any fair comment on the merits of any
case which the Court has heard and decided finally. Courts like any other institution do not enjoy
immunity from criticism as long as the criticism is fair, reasonable and temperate and does not
accuse judges of discharging their duties for improper motives or on extraneous consideration.

The respondent submits that the words "dishonest judgment" and "dishonesty" have to be
understood in a special sense. It is most humbly submitted that these words were used in order
to show the manner in which the appeal was heard and the manner in which Mr. Justice Shah
made up his mind quickly and then refused to budge from that position. In other words,
although Mr. Justice Shah was convinced that the appeal of the State of U.P. should be
dismissed he cleverly asked Mr. Justice Hegde to deliver the judgment and allow the appeal,
and that Mr. Justice Hegde wrote down what Mr. Justice Shah dictated or told him to write.

It is also contended that the petitioners have "needlessly dragged in the fair name of Hon'ble Mr.
Justice Hegde." The name of Mr. Justice Hegde did not occur even once anywhere either
disparagingly or otherwise, and the respondent has the greatest regard and respect for him, just as
for every other Judge in India. He took great care to keep out the fair name of Mr. Justice Hegde
although he did so at the risk of the impeachment motion not being admitted.

VII
 PRAYER FOR RELIEF

Therefore, in the light of arguments advanced, authorities cited, and facts stated the petitioner
humbly prays that:

a. This Hon’ble Court may be pleased to announce that the law relating to contempt of court
imposes unreasonable restriction on freedom of speech and expression guaranteed under
Article 19(1)(a) in the present case.

b. This Hon’ble Court may be pleased to adjudge that the passages extracted from the
pamphlet, read as a whole, does not constitute gross contempt of the Supreme Court of
India and is merely a form of expression of the respondent.

Or, pass any other order as it deems fit in the interest of equity, justice and good
conscience.
For this Act of Kindness, the Petitioner shall duty bound forever pray.

Counsel on behalf of the Respondent:

Toshan Chandrakar

Semester – IV

Section A

Roll No. 182

VIII