IN THE HONORABLE HIGH COURT OF JUDICATURE AT MADRAS

(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)

W.P NO. Of 2012

vs

Writ Petition

Counsel On Behalf Of The Petitioner

MEMORIAL FOR THE PETITIONER

TABLE OF CONTENTS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

PRAYER

MEMORIAL FOR THE PETITIONER

 INDEX OF AUTHORITIES

Books Referred:

 The Constitution Law of India- Dr. J.N.Pandey

 The Constitution Law of India- M.P.Jain
 The Constitution Law of India- P.M.Bakshi
 Lecture On Administrative Law- C.K.Takwani
 Administrative Law- I.P.Massey

Statues Referred:

 The Constitution Of India, 1950

MEMORIAL FOR THE PETITIONER

Websites Referred:

 www.prsindia.com
 www.indialawjoural.com
 www.indiakannon.com
 www.leagalindia.com

List of Case Cited

Kihota v. Zachilu

MEMORIAL FOR THE PETITIONER

List Of Abbreviations:

 Sc- Supreme Court

 ie- That is

 Art- Article

MEMORIAL FOR THE PETITIONER

 STATEMENT OF JURISDICTION

Petitioner has invoked the Writ Jurisdiction of this Honorable

High Court of Madras under Article 226 for restoration of their
membership.

MEMORIAL FOR THE PETITIONER

 STATEMENT OF FACTS
Mr. Kumar was the Chief Minister of a State in India the Legislative
Assembly of which had 100 members. He enjoyed the support of a
majority consisting of 56 members of his party, one detached member
of his party) and 3 independent members.

In order to pull down the government of Mr. Kumar 7 members of

ruling party, one detached member and three independents together
expressed lack of confidence in him and approached the Governor with
a joint memorandum against Chief Minister withdrawing support to
him.

The Speaker quickly invoked the Anti- Defection law and after giving
the right of hearing for clarifying their position disqualified them from
membership of the Assembly on the ground that their action of
withdrawing support amount to defection under Para 2 (a) of the 10th
schedule as they were expected to fulfill the aspirations of voters and
implement the manifesto of the ruling party.

They openly hobnobbed with the opposition. This conduct was

incompatible with the continuance of their membership of the House
as it was breach of loyalty and political morality. This reduced the
strength of the Assembly from 100 to 89.

MEMORIAL FOR THE PETITIONER

As a consequence the government of Mr. Kumar could not be pulled
down and on the direction of the Governor he won the vote of
confidence with the support of 49members of his party.

Aggrieved by the decision of the Speaker the disqualified

members approached the High Court of their State under Art. 226 for
restoration of their membership.

They questioned the decision of the Speaker inspite of not being

reviewable under paragraph 10 of the 10th Schedule of the
Constitution of India.

They challenged the said decision on various grounds namely violation

of their right to honest dissent (freedom of conscience voting) implicit
in their fundamental right to freedom of expression enshrined in Art. 19
(1)(a). They further stated that it makes the leader of ruling party
dictatorial and members of the party his dummies.

Further their case fell outside the scope of anti-defection law. The
Speaker was biased as mere withdrawal of support does not lead to the
inference of incurring disqualification under the aforesaid law.

The rebel members of the ruling party particularly stressed the point
that they did not give up party membership which was necessary to
attract anti-defection law (Para 2(a) of the 10th Schedule to the
Constitution).

MEMORIAL FOR THE PETITIONER

 STATEMENT OF ISSUES

1. Whether the speaker can exercise his right under

Anti-Defection law or not?

2. Whether the speaker act amounts to bias?

3. Whether the Article 19(1)(a) has been violated by the speaker?

4. Whether the High Court has jurisdiction to hear the matters for
disqualification of the members of the Legislative Assembly?

MEMORIAL FOR THE PETITIONER

 SUMMARY OF ARGUMENTS

1. Whether the speaker can exercise his right under

Anti-Defection law or not?

2. Whether the speaker act amounts to bias?

3. Whether the Article 19(1)(a) has been violated by the speaker?

4. Whether the High Court has jurisdiction to hear the matters for
disqualification of the members of the Legislative Assembly?

MEMORIAL FOR THE PETITIONER

 MEMORIAL FOR THE PETITIONER

ARGUMENTS ADVANCED
Speaker’s Decision Under Anti Defection Law:

The 10th Schedule to the Constitution, referred to as the “Anti-

Defection Law” was inserted by the 52nd Amendment in 1985.

Anti Defection Law provide disqualification of members from

parliament and assembly in case of defection from one party to other.

The object is to crub the evil of political defections motivated by the

lure of office or other similar consideration which endanger the
foundation of our democracy.

The remedy proposed to disqualify the members of either house of the

State Legislature who is found to have defected from constituting as a
member of the house
 MEMORIAL FOR THE PETITIONER

Article 191 Disqualifications for membership –

(1) A person shall be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative Council of a State-

(a) If he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an
office declared by the Legislature of the State by law not to disqualify
its holder

(b) If he is of unsound mind and stands so declared by a competent

court;

(c) If he is an undischarged insolvent;

(d) If he is not a citizen of India, or has voluntarily acquired the

citizenship of a foreign State, or is under any acknowledgement of
allegiance or adherence to a foreign State;

(e) If he is so disqualified by or under any law made by parliament.

(2) A person shall be disqualified for being a Member of the Legislative

Assembly or Legislative Council of a State if he is so disqualified under
the Tenth Schedule

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Disqualification On The Ground Of Defection-

(1) Subject to the provisions of [paragraphs 4 & 5, a member of a

House belonging to any political party shall be disqualified for being a
member of the House-

(a) if he has voluntarily given up his membership of such political party;

(b) if he votes or abstains from voting in such House contrary to any

direction issued by the political party to which he belongs or by any
person or authority authorized by it in this behalf, without obtaining, in
either case, the prior permission of such political party, person or
authority and such voting or abstention has not been condoned by such
political party, person or authority within fifteen days from the date of
such voting or abstention.

Explanation- For the purposes of this Sub-Paragraph-

(a) an elected member of a House shall be deemed to belong to the

political party, if any, by which he was set up as a candidate for election
as such member;

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(b) a nominated member of a House shall.-

(i) where he is a member of any political party on the date of his

nomination as such member, be deemed to belong to such political
party

(ii) in any other case, be deemed to belong to the political party of

which he becomes, or, as the case may be, first becomes, a member
before the expiry of six months from the date on which he takes his
seat after complying with the requirements of article 99 or, as the case
may be, article 188.

(2) An elected member of a House who has been elected as such

otherwise than as a candidate set up by any political party shall be
disqualified for being a member of the House if he joins any political
party after such election.

(3) A nominated member of a House shall be disqualified for being a

member of the House if he joins any political party after the expiry of
six months from the date on which he takes his seat after complying
with the requirements of article 99 or, as the case may be, article 188.

MEMORIAL FOR THE PETITIONER

(4) Not withstanding anything contained in the foregoing provisions of
this paragraph, a person who, on the commencement of the
Constitution (Fifty-second Amendment) Act, 1985, is a member of a
House (whether elected or nominated as such) shall.-

(i) where he was a member of a political party immediately before such

commencement, be deemed, for the purposes of sub-paragraph (1) of
this paragraph, to have been elected as a member of such House as a
candidate set up by such political party;

(ii) in any other case, be deemed to be an elected member of the House

who has been elected as such otherwise than as a candidate set up by
any political party for the purposes of sub-paragraph (2) of this
paragraph or, as the case may be, be deemed to be a nominated
member of the House for the purposes of sub-paragraph (3) of this
paragraph.

In a landmark Judgment of Kihota v. Zachilu the Sc has struck down

para 7 of the Anti-Defection Law which provided that the speaker’s
decision regarding the disqualification shall be final and no court could
examine its validity.

The court held that the function of the speaker, while applying Anti-
Defection Law is like that of a Tribunal and therefore is open to Judicial
Review

MEMORIAL FOR THE PETITIONER

Speaker Act Amounting To Bias-

Bias means an operative prejudice weather conscious or unconscious

in relation to a party or a issue . Therefore if a person for whatever
reason cannot take an objective decision on the basis of evidence on
record he shall be said to be biased.

A person cannot take an objective decision in a case in which he has an

interest for, as human psychology tells us very early can people take
decision against their own interest.

There are three types of bias

 Personal Bias - Various factors contribute to personal bias

in the adjudicator for or against one party in a dispute
before him. He may be a friend or relation of the party,Or
have some business or professional relation with him, or
may have some personal animosity or hostility against him

 Pecuniary Bias -There is a presumption that any direct finance

interest, however small, in the matter in dispute disqualifies the
person from adjudicating. Membership of a company , an
association or other organization in which he is financially
interested may operate as a bar to adjudicate, whereas mere bare
liability to cost where the decision itself will involve no pecuniary
loss will
‘MEMORIAL FOR THE PETITIONER
  Bias As To Subject Matter Or Official Bias- Bias may arise
because adjudicator may have a general interest in subject matter
in dispute because of his association as a member or otherwise of
a private body, or with the administration in his official capacity.
Generally speaking these do not operate as disqualification,
unless the adjudicator has intimately identified himself with the
issues in question.

Bias Acting under Dictation

The deciding authority decides any matter purely as per the
dictation of his superior official then his decision is invalid due to
bias.

Here the dictation of the superior must be compulsorily obeyed

by the deciding authority. A general direction if not compulsory
does not violate decision.

However dictation is different from directions given by some

official. Direction means guidance by superior authority as to now
the case is to be decided by the authority.

According to this case it is stated as it makes the leader of the ruling

party ( i.e Mr.Kumar Chief Minister) dictatorial and members of the
party as his dummies. So the speaker decision was naturally biased.

As the Speaker was biased as mere withdrawal of support does not lead
to the interference of incurring disqualification under the aforesaid law.

MEMORIAL FOR THE PETITIONER

Violation of Article 19 (1) (a) By the Speaker

Article 19(1) (a) says that all citizens shall have the right to freedom of
speech and expression.

Meaning-

Freedom of speech and expression means the right to express one’s

conviction and opinions freely by words of mouth, writing, printing or
any other mode.

It includes the expression of one’s ideas through any communicable

medium or visible representation.

MEMORIAL FOR THE PETITIONER

PRAYER

In light of the facts stated, arguments advanced and authorities cited,

the petitioner humbly prays before the Honorable Court to be
graciously pleased to declare:

 Speaker’s act amounts to Bias

 Restore the membership of the 11 speakers