i

TEAM CODE-77

IN THE

HON’BLE SUPREME COURT OF BHARATH NADU

AT XYZ

IN THE MATTERS OF

W.P. NO. ____ / 2019

UNITED NATIONAL CONGRESS PARTY

(REPRESENTED BY GENERAL SECTRETARY)

-PETITIONER 1

V.

UNION OF BHARATH NADU

(REPRESENTED BY SECRETARY, MINISTRY OF LAW AND JUSTICE)

- RESPONDENT 1

WITH

W.P. NO. ____ / 2019

BHARATH NADU YOUTH PARTY

(REPRESENTED BY GENERAL SECTRETARY)

-PETITIONER 2

V.

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UNION OF BHARATH NADU

(REPRESENTED BY SECRETARY, MINISTRY OF LAW AND JUSTICE)

-RESPONDENT 1

WITH

W.P. NO. ____ / 2019

MR. BELLIYAPPA

(REPRESENTED BY HIMSELF)

-PETITIONER 3

V.

UNION OF BHARATH NADU

(REPRESENTED BY SECRETARY, MINISTRY OF LAW AND JUSTICE)

-RESPONDENT 1

WITH

W.P. NO. ____ / 2019

RAITH MITRA (REPRESENTED BY GENERAL SECRETARY)

-PETITIONER 4

V.

UNION OF BHARATH NADU

(REPRESENTED BY SECRETARY, MINISTRY OF LAW AND JUSTICE)

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-RESPONDENT 1

NATION BUILDER (REPRESENTED BY GENERAL SECRETARY)

-RESPONDENT 2

WITH

UNDER ART. 32 OF CONSTITUTION OF BHARATH NADU READ WITH ORDER

XXXV RULE 1 OF THE SUPREME COURT RULES, 2013

THE ABOVE-MENTIONED MATTERS HAVE BEEN CLUBBED BY THIS

HON’BLE SUPREME COURT OF BHARATH NADU UNDER ARTICLE 142 OF

THE CONSTITUTION OF BHARATH NADU, READ WITH RULE 3, ORDER LV

OF THE SUPREME COURT RULES, 2013.

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TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................................... vi

STATEMENT OF JURISDICTION.......................................................................................... x

STATEMENT OF FACTS ....................................................................................................... xi

STATEMENT OF ISSUES .....................................................................................................xii

SUMMARY OF ARGUMENT ............................................................................................. xiii

ARGUMENTS ADVANCED ................................................................................................... 1

I. The Constitution (104th Amendment) Act, 2019 is constitutional .................................. 1

A. The Parliament was competent to enact the Amendment........................................ 1

B. The impugned amendment does not violate the principles of federalism ............... 2

C. Ratification of states was not required .................................................................... 3

D. The impugned amendment does not violate the principles of democracy .............. 4

II. Section 168A is Constitutional .................................................................................... 5

A. The Section is enacted with a valid object and purpose .......................................... 6

B. The Section does not violate the Right to Conscience ............................................ 6

III. The right of political parties to free speech and expression is not violated by section

123(9)7

A. Restrictions imposed are within the ambit of Article 19(2) .................................... 7

B. The restrictions imposed are not arbitrary ............................................................... 9

IV. the fundamental rights of farmers has not been violated by section 123(9) ............. 11

V. Section 29D of the RPA is not violative of article 19(1) (c) ..................................... 12

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PRAYER FOR RELIEF .......................................................................................................... 15

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INDEX OF AUTHORITIES

Cases

1. All India Bank Employees’ Association v. National Industrial Tribunal, (1962) 3 SCR

269.................................................................................................................................. 6

2. Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1. ...................................... 9

3. BCCI v. Cricket Association of Bihar, (2016) 8 SCC 535. ......................................... 13

4. Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051. .................................... 12

5. Charan lal Sahu v. Union of India, (1990) 1 SCC 613 .................................................. 3

6. Chintaman Rao & Ors. v State of MP, AIR 1958 SC 118. .......................................... 10

7. Dr. N.B. Khare v. Election Commission of India, AIR 1958 SC 139. ........................ 13

8. Federal Government, K.C. Wheare, London and Ney York: Oxford University Press,

1946................................................................................................................................ 1

9. Hindustan Lever v. State of Maharashtra, (2004) 9 SCC 438, ...................................... 2

10. Jang Bahadur v. Principal Mohindra College, 1950 SCC OnLine Pepsu 42. ................ 8

11. Jumuna prasad v. Lachii Ram, AIR 1954 SC 686. ...................................................... 10

12. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. ................................................. 6

13. Karnataka Bank Limited v. State of Andhra Pradesh, (2008) 2 SCC 254 ..................... 2

14. Kasturi Lal Lakshmi Reddy v State of Jammu and Kashmir, AIR 1980 SC 1992 ...... 11

15. Kihoto Hollohan v. Zachillhu and others, 1992 Supp. (2) SCC 651. ......................... 4,7

16. Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467. ....................................................... 8

17. N.P. Ponnuswami v Returning Officer, Namakkal Constituency .................................. 2

18. Niranjan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642 ................ 9

19. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180............................. 12

20. R.C. Poudyal v.Union of India, 1994 Supp (1) SCC 324 .............................................. 4

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21. Rameshwar Mahton v. State of Bihar, AIR 1957 .......................................................... 2

22. Ramji Lal Modi v. State of Uttar Pradesh, (1957) SCR 860. ........................................ 7

23. Romesh Thappar v. State of Madras, AIR 1950 SC 124. .............................................. 8

24. S. R Bommai v. Union of India, (1994) 3 SCC 1 .......................................................... 2

25. S. R Bommai v. Union of India, (1994) 3 SCC 1. ......................................................... 4

26. S. Subramaniam Balaji v. State of T.N., (2013) 9 SCC 659. ......................................... 8

27. Secretary, Ministry of Information and Broadcasting, Government of India and Others

v. Cricket Association of Bengal and Others (1995) 2 SCC 161................................... 8

28. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534. 11

29. State of Madras v. VG Row, AIR 1952 SC 196. ........................................................... 9

30. Supra Kasturi Lal Lakshmi Reddy v State of Jammu and Kashmir, 1980 AIR 1992. 13

31. Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527. ............................. 11

Constitutional Provisions

1. Article 102 (2), 191(2) and the 10th Schedule, the Constitution of Bharath Nadu. ..... 6

2. Article 234, the Constitution of Bharath Nadu. .......................................................... 14

3. Article 246, the Constitution of Bharath Nadu ............................................................. 1

4. Article 368 (2), the Constitution of Bharath Nadu. ...................................................... 3

5. Article 368, the Constitution of Bharath Nadu. ............................................................ 1

6. Article 43A, the Constitution of Bharath Nadu. ......................................................... 14

7. Articles 54, 55 73, 162, 241, the Constitution of Bharath Nadu .................................. 3

8. List I, Schedule 7, the Constitution of Bharath Nadu ................................................... 2

9. Schedule 7, the Constitution of Bharath Nadu ............................................................. 3

10. The Constitution (52nd Amendment) Act, 1985............................................................ 6

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Books

1. A.S. Chaudhari, Constitutional Rights and Limitations (vol.2) (1958) p.87 ................ 6

2. Constitution of India, DD. Basu, Lexis Nexis, Gurgaon, 2011 (8thed.) Vol. 8 (Art 233

to 307) ........................................................................................................................... 4

3. Constitution of India, DD. Basu, Lexis Nexis, Gurgaon, 2011 (8thed.) Vol. 8 (Art 233

to 307) (2017) ............................................................................................................... 4

4. H. M. Seervai, Constitutional Law of India, 4th edition, Vol. 1, Chapter V ................. 1

5. Indian Constitutional Law, M.P Jain, 8th ed., Lexis Nexis publications (2018) ........... 2

6. M.P. Jain, Indian Constitutional Law, Wadhwa, 5th Ed. (2003), p. 1315. .................. 11

Commission Reports

1. 170th Law Commission Report, 1999. ........................................................................ 13

2. Simultaneous Elections, Law Commission of India, .................................................... 3

Articles

1. Concurrent Elections and Voter Turnout: The Effect of Delinking of State Elections

on Electoral Participation in India’s Parliamentary Polls, 1971-2004, Csaba

Nikolenyi, 58(1) Political Studies Association 2010. ................................................... 5

2. Skinning a Cat, Justice B.N Srikrishna, (2005) 8 SCC J-3 ........................................... 4

Survey

1. Sikkim The Merger with India, Asian Survey (Vol. 15, No. 9) (September, 1979),

Rajan Gupta .................................................................................................................. 4

Internet Sources

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1. Disqualified legislators can contest by-polls, says CEC - The Hindu, available at

https://www.thehindu.com/news/national/tamil-nadu/disqualified-legislators-can-

contest-bypolls-says-cec/article25340017.ece .............................................................. 6

2. Goons keep Goa, Economic & Political Weekly, (Vol. 2. No 3/5: Feb, 1967) pg-129,

131, available at http://www/epw.in.journal/1967/39-C/Weekly-quarterlynotes/goa-

ref-lmnst-contents.html ................................................................................................. 4

3. Some Thoughts about Referendums, Representative Democracy and Separation of

Powers, Simon Hug (CIS, IPZ, Universitat

Zurich), http://www.weblaw.haifa.ac.il/he/Events/eveFile/hug:Rm-Cj:pdf.html ........ 4

4. The Elections and Referendums Act, 2000, available

athttp://www.legislation.gov.uk/ukpga/2000/41/pdfs/ukpga_20000041_en.pdf.......... 4

Journal

1. A Theory of the Calculus of Voting, W. Riker and P. Ordeshook, 62(1) American

Political Science Review…...…………………………………………………………5

2. A Theory of the Calculus of Voting, W. Riker and P. Ordeshook, 62(1) American

Political Science Review , pg. 25–42 (1968) …………………………………………5

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STATEMENT OF JURISDICTION

The respondents most humbly submit that this Hon’ble Supreme Court of Bharath Nadu has

the jurisdiction to hear and adjudicate upon the present matters of:

I. Petition No. ___/2019 filed by Petitioner 1 under Article 32 of the Constitution of

Bharath Nadu read Rule 12 Order XXXVIII of the Supreme Court Rules, 2013.

II. Petition No.___/2019 filed by Petitioner 2 under Article 32 of the Constitution of

Bharath Nadu of the Supreme Court Rules, 2013.

III. Petition No.___/2019 filed by Petitioner 3 under Article 32 of the Constitution of

Bharath Nadu of the Supreme Court Rules, 2013.

IV. Petition No.___/2019 filed by Petitioner 4 under Article 32 of the Constitution of

Bharath Nadu of the Supreme Court Rules, 2013

V. Intervening application No.___/2019 filed by Respondent 2 under Order XXXVIII,

Rule 2 of the Supreme Court Rules, 2013.

The above-mentioned matters have been clubbed by this Hon’ble Supreme Court of

Bharath Nadu under Article 142 of the Constitution of Bharath Nadu, read with Rule 3,

Order LV of the Supreme Court Rules, 2013.

All of which is urged in detail in the written submission and respectfully submitted.

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STATEMENT OF FACTS

Bharath Nadu is a federal country with a multi-party system which has adopted a parliamentary

form of government. It is technologically growing faster. Many political scientists, economists,

and international organisations have accepted the country’s highest potential to become a world

leader if it addresses its political crisis.

Prevalent political crisis

The country is facing political instability due to defections and split in political party etc. To

deal with it, a committee formed by the Hon’ble Supreme Court suggested election reforms

with the objective to synchronize elections, curb ill practices of freebies by political parties and

make the parties more accountable.

104th Constitutional Amendment and Amendment to the Representation of People Act,

1951

The parliament inserted Article 172(3) giving power to the parliament to change the term of

state assembles to synchronize elections. Insertions were also made in the Representation of

People Act (“Act”) to regulate the of leadership of political parties by way of elections, make

promises of freebies solely with a view to secure votes, corrupt practice and imposing

exemplary cost on members who resign and intend to contest election before completion of

term

Filing of Present Petition

The petitioners filed a petition under Article 32 of the Constitution of Bharath Nadu before the

Hon’ble Supreme Court alleging that the Constitutional Amendment is violative of the basic

structure and the insertions made in the Act violates Article 19(1) (a), 19(1) (c) and Article 21

i.e. freedom of conscience and fundamental rights of farmers. Hence, the present matter.

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STATEMENT OF ISSUES

I. WHETHER THE CONSTITUTION (104TH AMENDMENT) ACT, 2019 IS CONSTITUTIONAL?

II. WHETHER SECTION 168A VIOLATES FREEDOM OF CONSCIENCE?

III. WHETHER THE RIGHT OF POLITICAL PARTIES TO FREE SPEECH AND EXPRESSION IS

VIOLATED BY SECTION 123(9)?

IV. WHETHER THE RIGHT OF POLITICAL PARTIES TO FREE SPEECH AND EXPRESSION IS NOT

VIOLATED BY SECTION 123(9)?

V. WHETHER SECTION 29D OF THE ACT IS VIOLATIVE OF ARTICLE 19(1)(C)?

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SUMMARY OF ARGUMENT

I. THE CONSTITUTION (104TH AMENDMENT) ACT, 2019 IS CONSTITUTIONAL.

The impugned Constitutional Amendment is not violative of principles of federalism

and democracy and hence is constitutional.

II. SECTION 168A IS CONSTITUTIONAL.

The impugned section is inserted with a valid object and purpose. It does not violate

the freedom of conscience under Article 19(1)(A) and 21.

III. THE RIGHT OF POLITICAL PARTIES TO FREE SPEECH AND EXPRESSION IS NOT VIOLATED

BY SECTION 123(9).

The restriction imposed is reasonable in furtherance of the Directive Principles of

State Policy as the promises of freebies vitiates the level playing field. The restriction

is made on the grounds available in Article 19(2).

IV. THE FUNDAMENTAL RIGHT TO FARMERS HAS NOT BEEN VIOLATED BY SECTION 123(9).

The section does not violate Article 21 as the procedure established by law is

followed. Grant of loans is not a vested right with farmers. Even then it was

reasonably restricted.

V. SECTION 29D OF THE ACT IS NOT VIOLATIVE OF ARTICLE 19(1)(C).

The restriction imposed is reasonable within the ambit of 19(4). Right to form

association not violated as just a democratic way of elections are imposed. It is made

in furtherance of Directive Principles of State Policy to ensure more accountability of

parties as it effects the democracy.

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ARGUMENTS ADVANCED

I. THE CONSTITUTION (104TH AMENDMENT) ACT, 2019 IS CONSTITUTIONAL

The Parliament on the proposed reforms in the Electoral Law enacted the Constitution (104th

Amendment) Act, 2019 which is wholly constitutional because [A] the Parliament was

competent to enact the amendment; [B] The amendment does not violate the principles of

federalism; [C] The amendment does not violate the principles of democracy and [D] The

amendment is not a piece of colourable legislation.

A. The Parliament was competent to enact the Amendment

The power of the Parliament to amend the Constitution and procedure thereof has been laid

down in Article 368.1 Clause 1 of Article 368 provides that the Parliament has the power to

amend the Constitution by way of addition, variation or repeal any provisions in accordance

with the procedure laid down in the Article.2

i. The elections to the state legislatures is a subject matter of the Union List

Federalism, as defined by Prof. K.C3, is a division of powers between the centraland regional

governments within a sphere which facilitate coordination between them. 4 Bharath Nadu is a

federal country.5 The Constitution of Bharath Nadu provides for separate subject-matters on

which laws can be made by the Parliament and the State Legislatures respectively.6 Article 246

of the Constitution, starts with a non obstante clause. The non obstante clause gives the

Parliament exclusive power to make laws with respect to any of the matters enumerated in List

1
Article 368, the Constitution of Bharath Nadu.
2
Id.
3
Federal Government, K.C. Wheare, London and Ney York: Oxford University Press, 1946, pg 11.
4
H. M. Seervai, Constitutional Law of India, 4th edition, Vol. 1, Chapter V (2015), pg. 283.
5
Proposition, para 1.
6
Article 246, the Constitution of Bharath Nadu.

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I.7 Entry 72 of the Union List8 gives the Parliament power to make laws relating to the

‘Elections to the Legislatures of the State’. Entry 37 of the State List, states that the State

Legislatures have the power to make laws with respect to elections of the state legislatures but

subject to any provisions of any law made by the Parliament.9 According to the principles of

interpretation of the Lists, since the entries only give an outline of the subject matter of the

legislation, they should be interpreted in the widest amplitude.10 The Courts have also held that

the words used in any entry would necessarily include incidental and ancillary matters so as to

make the legislation effective.11 The Hon’ble Supreme Court in N.P. Ponnuswami v Returning

Officer, Namakkal Constituency12 discussed the wider meaning of “elections” and said that it

would include the whole process culminating in the declaration of the candidate as elected.

According to this wider definition of the “elections” it can be reasonably construed that it would

also include the durations of the assemblies. Therefore it is submitted that the Parliament was

well within its power to make amendments in the duration of state legislatures.

B. The impugned amendment does not violate the principles of federalism

Federalism is a concept which unites separate states into a Union without sacrificing their own

fundamental political integrity.13 The Representation of the People’s Act, 1950 and 1951,

enacted by the Parliament fall under the Entry 72 of the Union List i.e. ‘Elections to Parliament,

to the Legislatures of States. The Act of 1951 has been held constitutional despite incidentally

encroaching upon an entry of the state list.14 If the Parliament is stopped from exercising its

7
Indian Constitutional Law, M.P Jain, 8th ed., Lexis Nexis publications (2018), pg. 535.
8
List I, Schedule 7, the Constitution of Bharath Nadu.
9
List II, Schedule 7, the Constitution of Bharath Nadu.
10
Karnataka Bank Limited v. State of Andhra Pradesh, (2008) 2 SCC 254, para 44, pg. 270.
11
Hindustan Lever v. State of Maharashtra, (2004) 9 SCC 438, para 34, pg. 458.
12
N.P. Ponnuswami v Returning Officer, Namakkal Constituency, 1952 SCR 218, para 6.
13
S. R Bommai v. Union of India, (1994) 3 SCC 1, para 14, pg 68.
14
Rameshwar Mahton v. State of Bihar, AIR 1957 Pat 252, para 37, pg.255.

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power on a subject matter within its sphere would itself amount to violation of principles of

federalism.

C. Ratification of states was not required

The proviso under clause 2 of Article 368, lays down the procedure in case such amendments

falls within the conditions specified in it. If the amendment seeks to make changes in (a) Article

54, Article 55, Article 73, Article 162 or Article 241,15 or (b) Chapter IV of Part V, Chapter V

of Part VI, or Chapter I of Part XI of the Constitution of Bharath Nadu or (c) any of the Lists

in the Seventh Schedule,16 or (d) the representation of States in Parliament, or (e) the provisions

of this article,17 then it requires the ratification of falls under the conditions of clause 2, it

requires ratification of not less than one-half of the states. The impugned amendment does not

fall within any of the conditions laid down in the proviso of clause 2 of Article 368. Therefore

the parliament was competent to make such an amendment.

The Constitution bench of the Supreme Court of India in Charan lal Sahu v. Union of India18,

observed that, “to do great right” it is sometimes permissible “to do a little wrong”.19 The

constitutional amendment is not violating federalism in toto as the state legislatures can still

legislate on subject matters in the State List. The amendment is only restricting the duration of

the state legislative assemblies for the purposes of synchronization of elections to the legislative

assemblies of the states with the Lower House of the Parliament. 20 The said amendment just

touches upon the federalism of the Bharath Nadu but does not make a substantial change on

the very basic idea of federalism.

15
Articles 54, 55 73, 162, 241, the Constitution of Bharath Nadu.
16
Schedule 7, the Constitution of Bharath Nadu.
17
Article 368 (2), the Constitution of Bharath Nadu.
18
Charan lal Sahu v. Union of India, (1990) 1 SCC 613, para 124, pg 705.
19
Simultaneous Elections, Law Commission of India, draft report, available at
http://www.lawcommissionofindia.nic.in/reports/Simultaneous_Elections.pdf.
20
Proposition, para 7.

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D. The impugned amendment does not violate the principles of democracy

In Kihoto Hollohan v. Zachillhu 21, the Supreme Court held that democracy is a basic feature

of the Constitution along with regular elections at prescribed intervals which is essential to the

democratic system envisaged in the Constitution. This has also been upheld in the case of S.R

Bommai v. Union of India .22

Democracy means the exercise of actual, active and effective power by the people in running

the administration of the Government. 23 It conveys the state of affairs in which each citizen is

assured of the right of equal participation in the polity. 24It is a known fact that India is a

representative democracy and not a direct democracy.25 But still referendums have been held

in India on the directives of the Supreme Court on two occasions.26 First, to decide the inclusion

of Junagadh to join India or Pakistan. Second, during the integration of Sikkim in 1975,27and

inclusion of Goa, Daman & Diu as Union territories. 28 Even the United Kingdom, which

originally considered referendum as unconstitutional, 29 has legalised it vide the Elections and

Referendums Act, 2000. 30

The online referendum conducted by Bharathnadu on proposed electoral reforms, received a

huge response.31 Therefore it is submitted that the amendment was nothing but reflection of

21
Kihoto Hollohan v. Zachillhu and others, 1992 Supp. (2) SCC 651; para 130, pg. 720.
22
S. R Bommai v. Union of India, (1994) 3 SCC 1.
23
R.C. Poudyal v.Union of India, 1994 Supp (1) SCC 324; para 52, pg 362.
24
Id.
25
Skinning a Cat, Justice B.N Srikrishna, (2005) 8 SCC J-3, pg. J-23.
26
Constitution of India, DD. Basu, Lexis Nexis, Gurgaon, 2011 (8thed.) Vol. 8 (Art 233 to 307) (2017), pg-
8571-8572.
27
Sikkim The Merger with India, Asian Survey (Vol. 15, No. 9) (September, 1979), Rajan Gupta (Pg 786-789).
28
Goons keep Goa, Economic & Political Weekly, (Vol. 2. No 3/5: Feb, 1967) pg-129, 131, available
at http://www/epw.in.journal/1967/39-C/Weekly-quarterlynotes/goa-ref-lmnst-contents.html.
29
Some Thoughts about Referendums, Representative Democracy and Separation of Powers, Simon Hug (CIS,
IPZ, Universitat Zurich), http://www.weblaw.haifa.ac.il/he/Events/eveFile/hug:Rm-Cj:pdf.html.
30
The Elections and Referendums Act, 2000, available
athttp://www.legislation.gov.uk/ukpga/2000/41/pdfs/ukpga_20000041_en.pdf
31
Proposition, para 6.

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will of the people of Bharath Nadu and it portrayed the exercise of true democracy and not a

violation of it.

Additionally, Prof. Csaba Nikolyeni (Professor of Political Science, (Director, Azrieli Institute

of Israel Studies), while studying Indian elections, used a basic formula to calculate voter

motivation deployed the Riker Ordeshook Model.32 According to this model the formula is:

pB + D > C ; where ‘p’ = probability that the act of the individual’s vote will decide the outcome

of the election; ‘B’ = benefit of the voter’s favoured candidate being elected; ‘D’ = stands for

any other benefit from voting, such as the sense of fulfilling a particular duty; and ‘c’ = the cost

of voting.33

As per this study, it was concluded that separate elections in India were preventing more people

from participating in elections. He also drew the hypothesis that the voter turnout will increase

if the elections to the states and Centre takes place simultaneously. 34 Therefore it would

strengthen the democracy as a greater amount of citizens would get involved in it. Thus it is

submitted that simultaneous elections would strengthen the principles of democracy rather than

weaken it.

II. SECTION 168A IS CONSTITUTIONAL

It is submitted that Section 168 is constitutional. The section is enacted with a valid purpose of

strengthening the already existing Anti-Defection law [A]. The Section is enacted with a valid

object and purpose; and [B]. The Section does not violate the Right to Conscience.

32
A Theory of the Calculus of Voting, W. Riker and P. Ordeshook, 62(1) American Political Science Review ,
pg. 25–42 (1968)
33
Ibid.
34
Concurrent Elections and Voter Turnout: The Effect of Delinking of State Elections on Electoral Participation
in India’s Parliamentary Polls, 1971-2004, Csaba Nikolenyi, 58(1) Political Studies Association 2010.

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A. The Section is enacted with a valid object and purpose

As per the existing anti-defection law35, the phrase ‘disqualified for being a member of the

House’ provides no bar to a deflected candidate to contest in the by-elections. As the defection

disqualifies from holding the current elected office and not from contesting elections in future.

This position was clarified by the Chief Election Commissioner of India.36

The anti-defection law was first enacted to prevent such political defections which may be due

to a reward of office or other similar considerations.37 The law aimed at providing a stable

government. However, since the purpose was not being achieved truly due to the anomaly of

by-polls, the government enacted the impugned section. The insertion was aimed at

strengthening the existing law, while also creating deterrence against contesting of by-

elections, by way of imposing exemplary cost. Moreover, existing law is not the ground to stop

the legislature from making new laws even if the court is persuaded that the existing law is

sufficient.38

B. The Section does not violate the Right to Conscience

The Right to Conscience includes not just religious beliefs but also political belief. 39 The said

right of conscience is recognised both under Article 19(1)(a) and Article 21.40

Conscience means the internal knowledge or judgment of right and wrong. The principle is that

a man can never be hindered from thinking whatever he chooses. Every man is free to think his

own thoughts and to have his own opinions about religion and morality.41

35
Article 102 (2), 191(2) and the 10th Schedule, the Constitution of Bharath Nadu.
36
Disqualified legislators can contest by-polls, says CEC - The Hindu, available at
https://www.thehindu.com/news/national/tamil-nadu/disqualified-legislators-can-contest-bypolls-says-
cec/article25340017.ece
37
The Constitution (52nd Amendment) Act, 1985.
38
All India Bank Employees’ Association v. National Industrial Tribunal, (1962) 3 SCR 269.
39
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
40
Ibid.
41
A.S. Chaudhari, Constitutional Rights and Limitations (vol.2) (1958) p.87.

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The Supreme Court in Kihoto Hollohan v Zachilhu held that the X Schedule of the Constitution

of India did not violate the freedom of speech, freedom of vote and conscience, of the elected

Members of the Parliament and Legislatures of the states.42 The justification was that the

Schedule was intended to strengthen the fabric of Indian Parliamentary democracy by curbing

unprincipled and unethical political defections.43

Hon’ble Justice Venkatachaliah, writing for the majority stated that the Constitution is flexible

to provide for the compulsions of the changing times and that the freedom of speech of a

member is not an absolute freedom.

Section 168A which makes a member liable to pay an exemplary cost, determined by the

Election Commission is a mere addition to the already existing anti-defection law, which has

been held to not violate the freedom of conscience. Thus, the Section 168A is not violative of

freedom of conscience under Article 19(1) (a) and Article 21.

III. THE RIGHT OF POLITICAL PARTIES TO FREE SPEECH AND EXPRESSION IS NOT

VIOLATED BY SECTION 123(9)

It is submitted that the fundamental right of the petitioner no. 1, United National Congress

Party (UNCP), to speech and expression is not violated by the insertion of Section 123(9) in

the Representation of People Act. This is because, [A] the restrictions imposed are within the

ambit of Article 19(2); [B] the restrictions are reasonable and not arbitrary.

A. Restrictions imposed are within the ambit of Article 19(2)

It is submitted that the freedom provided in Article 19(1) (a) is not absolute and can be curtailed

under article 19(2) in order to maintain sovereignty and integrity of India and public order. The

ambit of Article 19(2) is very wide as the words ‘in the interest of’ are used.44 This freedom

42
Kihoto Hollohan v. Zachillhu and others, 1992 Supp. (2) SCC 651.
43
Ibid.
44
Ramji Lal Modi v. State of Uttar Pradesh, (1957) SCR 860.

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does not confer an absolute right to publish or an unrestricted license that gives immunity for

every possible use of language and does not prevent punishments for those who abuse this

freedom.45 This right must not violate the rights of other.46 Here, the election commission of

India under article 324 of the Indian constitution is established to conduct free and fair elections

which is a basic tenet of democracy.

Democracy cannot survive without free and fair election, without free and fairly informed

voters.47 The distribution of freebies of any kind, undoubtedly, influences all people. It shakes

the root of free and fair elections to a large degree. 48 The promise of such freebies at the

government cost disturbs the level playing field vitiating the electoral process to woo the

gullible electorates.49

In S. Subramaniam Balaji v. State of T.N the court observed that:

“Fair and free elections are essential requisites to maintain the purity of elections and to

sustain the faith of the people in election itself in a democratic set-up. Those indulging in

corrupt practices at an election cannot be spared and allowed to pollute the election process

and this purpose is sought to be achieved by these provisions contained in the RP Act."50

In the case of Krishnamoorthy v. Sivakumar51, the court ruled that criminalisation of politics is

a lamentable situation that threatens democracy and has the potentiality to paralyse and

strangulate the purity of the system.

45
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
46
Jang Bahadur v. Principal Mohindra College, 1950 SCC OnLine Pepsu 42.
47
Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket Association
of Bengal and Others (1995) 2 SCC 161.
48
S. Subramaniam Balaji v. State of T.N., (2013) 9 SCC 659.
49
Ibid.
50
Ibid
51
Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467.

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A law enacted with the purpose of maintaining probity in elections serves the constitutional

purpose and is basic feature of the democracy.52 So, the provision is to promote the object of

free and fair elections and facilitate maintenance of the law and order which are the essence of

democracy must, therefore, be so viewed.53

In the present matter, making of promises of freebies that are fulfilled on the government

expense vitiates the core of fair elections as political parties entice the voters by such schemes

leading to criminalisation of politics and bringing disorder in the working of the democratic

country Bharath Nadu. So, the restriction is within the ambit of Article 19(2)

B. The restrictions imposed are not arbitrary

The impugned section amounts to a reasonable restriction as [I] it fulfils the requirement of a

reasonable restriction and [ii] it is enacted in furtherance of a Directive Principle of State

Policy.

i. The section fulfils the requirement of reasonable restrictions

It is submitted that, the standard of reasonability varies with 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, the disproportion of the imposition, the prevailing condition at the time. These

factors have to be taken into consideration for any judicial verdict.54

Further, it is held that the corruption is not to be judged by degree as it leads to disorder and

destroys the societal will to progress.55 Since the amendment has been brought in on the basis

of the need to avoid criminalisation and wipe out evils of corruption as also to maintain the

52
Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1.
53
Ibid.
54
State of Madras v. VG Row, AIR 1952 SC 196.
55
Niranjan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642, para 26.

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integrity of our democratic set-up, it can be justified by the State as a reasonable restriction

under article 19(2) of the Constitution.

Special emphasis is laid on the Hon’ble Supreme Court’s in five judge bench decision in

Jumuna prasad v. Lachii Ram where sections 123(5) and 124(5) of RP Act were challenged on

the pretext that they violate the right to speech and expression. The court ruled that:

“These laws do not stop a man from speaking. They merely prescribe conditions which must

be observed if he wants to enter Parliament. The right to stand as a candidate and contest an

election is not a common law right. It is a special right created by statute and can only be

exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no

bearing on a right like this created by statute. The appellants have no fundamental right to be

elected members of Parliament. If they want that they must observe the rules. If they prefer to

exercise their right of free speech outside these rules, the impugned sections do not stop them.

We hold that these sections are intra vires.”56

In Chintaman Rao & Ors. vs State of MP57 court held that whether a law is valid or invalid is

to be decided according to the interface with fundamental rights was reasonable or not in the

interest of general public.

In the present matter, the impugned section is valid as it fulfils the test of reasonableness. First,

restriction is imposed to ensure free and fair conduct of elections that is a basic feature of

democracy. Second, the restriction imposed is narrowly tailored as only those promises are

restricted which are solely made for the purpose of securing votes. Therefore, political parties

are not made liable for the promises made for the interest of general public. Third, the impugned

section is enacted to curb the evil of political instability. The state of Bharath Nadu is facing

56
Jumuna prasad v. Lachii Ram, AIR 1954 SC 686.
57
Chintaman Rao & Ors. v State of MP, AIR 1958 SC 118.

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political stability from the last two decades on account of criminalisation of politics and

corruption, which are hindering the country from being in a position of a world leader.58

ii. The section is enacted in furtherance of a Directive Principle of State Policy

The Courts have consistently held that the Directive Principles of State Policy are also relevant

in considering whether a restriction on a Fundamental Right is reasonable or not.59 A restriction

which generally promotes a Directive Principle is regarded as reasonable.60

The present section is enacted in furtherance of a Directive Principle of State Policy. The

section serves Article 38 of the Constitution which obligates the state to secure social order for

the promotion of welfare of people. It is the duty of state to function as a welfare state and look

after the welfare of all its citizens.61 Therefore, the impugned section amounts to a reasonable

restriction and hence, is valid.

IV. THE FUNDAMENTAL RIGHTS OF FARMERS HAS NOT BEEN VIOLATED BY SECTION

123(9)

It is submitted that the fundamental right of the farmers under Article 21 has not been violated

by the insertion of Section 123(9) in the Representation of People Act.

Article 21 provides that no person shall be deprived of his life and personal liberty expect

according to the procedure established by law. The procedure established by the law must be

fair, just and reasonable.62 It is submitted that the restriction on the right to livelihood and

dignity of farmers is just, fair and reasonable.

58
Proposition, para 1.
59
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
60
Kasturi Lal Lakshmi Reddy v State of Jammu and Kashmir, AIR 1980 SC 1992.
61
Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527.
62
M.P. Jain, Indian Constitutional Law, Wadhwa, 5th Ed. (2003), p. 1315.

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In Chameli Singh v. State of Uttar Pradesh, it was held by the Hon’ble Supreme Court that

when the land of a landowner was acquired by state in accordance with the procedure laid down

in the relevant law of acquisition, the right to livelihood of such a landowner even though

adversely affected, was not violated.63 The Court opined that, the state acquires land in exercise

of its power of eminent domain for a public purpose. The landowner is paid compensation in

lieu of land, and therefore, the plea of deprivation of right to livelihood under Art. 21 is

unsustainable.64 Further, the state may not by affirmative action, be compelled to provide

adequate means of livelihood.65

Similarly, granting of loan waivers is the eminent domain of the government. Therefore, grant

of such loans is not a vested right of the farmers. Arguendo, even if such a right existed, the

section only reasonable restricts the right to cases where farm loans are waived with the

intention to entice votes.

Therefore, the restriction imposed was reasonable and according to the procedure established

by law.

V. SECTION 29D OF THE RPA IS NOT VIOLATIVE OF ARTICLE 19(1) (C)

It is humbly submitted that Section 29(D) does not violate Article 19(1)(c) of the Constitution

of Bharath Nadu. The rights conferred by the Article 19(1) (c) are not absolute in nature. Article

19(4) allows the parliament to impose ‘reasonable restrictions’ on the grounds of sovereignty

and integrity, public order and morality. In the present case restrictions are imposed to maintain

sovereignty, integrity and morality as the functioning of the political parties have a bearing on

63
Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051.
64
Ibid.
65
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

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the democracy of the country and to curb its ill effects in the country which endangers the

democracy due to the selection of an unworthy leader.

In BCCI v Cricket Association, it was held that the right of citizens to form association is not

absolute and state can impose regulations and other control on the said right as long as initial

voluntary composition of the association remains unaffected.66 Such restrictions shall be valid

only if they are in interest of discipline and public order.67

The Directive Principles of State Policy are also relevant in considering whether a restriction

on a Fundamental Right is reasonable or not. A restriction which generally promotes a

Directive Principle is regarded as reasonable68

In its 170th report in 1999, the Law Commission of India underscored the importance of intra-

party democracy by arguing that a political party cannot be a ‘dictatorship internally and

democratic in its functioning outside.’69

In the present case, the restrictions are reasonable as the right in question is being restricted to

ensure free and fair conduct of elections which is a basic feature of democracy. The impugned

section, only provides for a democratic way of selection of their leader. This does not curtail

the right of a political party to select its leader or to form association, thus limiting the extent

of restriction imposed. Also, the current situation of evil is to be considered. The state of

Bharath Nadu is facing political stability from the last two decades on account of

criminalisation of politics hindering the country to be in a position of world leader.70.

66
BCCI v. Cricket Association of Bihar, (2016) 8 SCC 535.
67
Dr. N.B. Khare v. Election Commission of India, AIR 1958 SC 139.
68
Supra note 60.
69
170th Law Commission Report, 1999.

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In the present matter, the DPSP under Article 43 A provides for ensuring participation of

workers in the management of the organisation.71 The respondents with the above provided

provision has brought Section 29D. It is also in the line with Justice Radhakrishnan

Committee’s suggestions to make political parties more accountable and promote internal

democracy within the political parties.72 Here the Election Commission of India under Article

32473 of the constitution is established to conduct free and fair elections. This right of the

commission is to be contrasted with the right of the political parties to associate and will go a

long way to signify reasonableness.

Furthermore, applying the principle of Jumuna Prasad case74 discussed earlier, the right to

form government by the political association is not a common law right. It is a special right

created by a statute and can only be exercised on the conditions laid down by statute.75

Therefore, it is contended that the restriction was reasonable within the grounds mentioned in

Article 19(4). So, the law must be held to be valid. Accordingly, this Court must dismiss this

petition.

71
Article 43A, the Constitution of Bharath Nadu.
72
Proposition, para 3.
73
Article 234, the Constitution of Bharath Nadu.
74
Supra, note 56.
75
Ibid.

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PRAYER FOR RELIEF

Wherefore, in the light of the facts of the case, arguments advanced and authorities cited, it is

submitted that the Hon’ble Supreme Court of Bharath Nadu may be pleased to dismiss the

petitions filed.

And/or pass any other writ, order or direction which the court may deem fit in the ends of

equity, justice, and good conscience in favour of the Respondent. All of which is most

respectfully submitted.

Place: S/d_________________

Date: (Counsel for Respondent)

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