CLASS MOOT-2020

Before

THE HON’BLE SUPREME COURT OF INDIANA

Under Article 32 of the Constitution of Indiana

IN THE MATTER OF:

Dr. M.S. Govinda …Petitioner

v.

Hon’ble Speaker Lok Sabha …Respondent

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIANA

COUNSELS FOR PETITIONER-

1.

2.

3.

MEMORANDUM FOR PETITIONERS

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TABLE OF CONTENTS

II
 INDEX OF AUTHORITIES

CASES

Other Authorities

170th law commission report 1999 ................................................................................. 9

Constituent assembly debates, 19th May 1949, (article 85 of draft constitution) ........ 10

Statement of objects and reasons of THE CONSTITUTION (FIFTY-SECOND

AMENDMENT) ACT, 1985; www.indiacode.nic.in/coiweb/amend/amend52.htm..
.................................................................................................................................... 9

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 STATEMENT OF JURISDICTION

It is humbly submitted before this Hon’ble Court that this Court has the jurisdiction to
entertain the present petition under Article 32 of the Constitution of Indiana as the
impugned piece of legislation has allegedly violated the fundamental rights of the
petitioner. Article 32 reads as:

“32. Remedies for enforcement of rights conferred by this Part-

The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed

The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.

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 STATEMENT OF FACTS

Indiana is the largest democratic country in South Asia having imported the concept
of Parliamentary democracy from the United Kingdom. National Indiana Congress
(NIC) and Independent Party of Indiana (IPI) are two major political parties in
Indiana. In the general election of 2015, IPI got simple majority in Lok Sabha which
enabled it to establish government in centre.

The ruling party always felt the potential threat to its stability considering the simple
majority and also from some unambitious and unhappy leaders from the party itself.
Few party leaders especially Dr. Govinda, a member of Lok sabha and senior leader
from IPI was feeling ignored and was not happy with way in which he was being
treated by the top party leaders. He wanted ministership and it was not given to him.

On 9th December, 2017, Central Government had proposed The National Highway
Bill, 2017. Dr. Govinda was very upset by the proposed bill. He said that he would
lead the farmers of his constituencies to strongly oppose the proposed project.

27th December 2017 was decided to be the date of voting on the bill. Due to strong
opposition from the opponents, for compelling attendance of its party members, the
party leader in Lok Sabha, Mr. Anand Singh issued the whip.

The bill was passed with a narrow majority. While analysing the results the ruling
party found out that Dr. Govinda was absent for the voting. Dr. Govinda gave medical
reasons for his absence but could not give proof for the same.

Mr. Anand Singh forwarded a petition to the speaker of Lok Sabha, the respondent,
Mr. A.V. Prasad and requested him to take action against Dr. Govinda. 5 days were
given to present his side. He prayed for adjournment and it was rejected.

On the basis of the evidence, the respondent held Dr. Govinda liable for disobeying
the whip issued by the party leader and by relying paragraph 2(b) of the 10th schedule,
he cancelled Dr. Govinda’s Lok Sabha membership. While justifying his decision he
said, people vote for the agenda of the party and not for the party candidate.

Dr. Govinda felt aggrieved and approached the Supreme Court and asked for the 10th
schedule to be declared as unconstitutional.

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 STATEMENT OF ISSUES

1. Whether the Supreme Court of Indiana has the jurisdiction to entertain the
present petition?

2. Whether the speaker while deciding the matter under the 10 th schedule
satisfies the requirement of independent adjudicatory machinery?

3. Whether the 10th schedule of the constitution prohibiting honest and genuine
dissent deserves to be declared as unconstitutional?

4. Whether section 2 (b) of the 10th schedule violates Parliamentary Privileges

provided under Article 105 of the constitution?

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 SUMMARY OF PLEADINGS

1. Whether the Supreme Court of Indiana has the jurisdiction to entertain the
present petition?

2. Whether the speaker while deciding the matter under the 10th schedule
satisfies the requirement of independent adjudicatory machinery?

3. Whether the 10th schedule of the constitution prohibiting honest and genuine
dissent deserves to be declared as unconstitutional?

4. Whether section 2 (b) of the 10th schedule violates Parliamentary Privileges

provided under Article 105 of the constitution?

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 ARGUMENTS ADVANCED

1. WHETHER THE SUPREME COURT OF INDIANA HAS THE

JURISDICTION TO ENTERTAIN THE PRESENT PETITITON?

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2. WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER
THE 10TH SCHEDULE SATISFIES THE REQUIREMENT OF
INDEPENDENT ADJUDICATORY MACHINERY?

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3. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION
PROHIBITING HONEST AND GENUINE DISSENT DESERVES TO BE
HELD UNCONSTITUTIONAL.

Our Indian Bureaucratic and Legislative system is running through our politicians, politicians
comes from the word “Politics.” The word politics comes from the Greek word “Politika”
which means “of, for, or relating to citizens,” but our Indian Politics according to a layman is
a bog where a person once enters never comes out. Politicians make promises but never
fulfill those promises; they work on filling their pockets and making life of people miserable.
Earlier after the Independence, it was very easy for a legislative elected member to hop
around from one party to another to fulfill their ambitions, but this led to many
Governments toppling around, keeping in mind all this our legislatures made an amendment
in the year 1985 which was our 52nd Amendment Act and passed a law called “Anti-
defection law” which added a new schedule to our Constitution, i.e., X Schedule.

Anti-defection law, its main intent is to combat ‘the evil of political defections.’ This law was
passed soon after Lt. Shri. Rajiv Gandhi became the Prime Minister of the country with a
massive mandate. This law would not have been passed if there had been no Rajiv Gandhi
and his government with an unparalleled massive majority. This law was passed so that it
curbs the political deflections but the ever increasing hunger of our legislatures and with our
excellent legal fraternity it was not a difficult task to find some loopholes in this law and they
used it to their interest.

Defections numbering more than one-third of the party's strength were considered to be
legal. It also provided for the disqualification of individual members defecting from the party
through which the member was elected. Even here, the law is open to considerable
interpretation, and in some state legislatures the bias of the Speaker leads to confusion,
often resulting in litigation.

The first challenge to the anti-defection law was made in the Punjab and Haryana high court
in Parkash Singh Badal and others v. Union of India and others . One of the grounds on which
the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution
violated Article 105 of the Constitution, wherein the court held: "So far as the right of a
member under Article 105 is concerned, it is not an absolute one and has been made subject
to the provisions of the Constitution and the rules and standing orders regulating the
procedure of Parliament. The framers of the Constitution, therefore, never intended to
confer any absolute right of freedom of speech on a member of the Parliament and the
same can be regulated or curtailed by making any constitutional provision, such as the 52nd
Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violative of the
provisions of Article 105 of the Constitution.(Para 28)."

The Constitution (32nd Amendment) Bill 1973 and the Constitution (48th Amendment) Bill
1978 had provisions for decision-making by the president and governors of states in relation
to questions on disqualification on ground of defection.

The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that
questions of disqualification on ground of defection shall be decided by chairmen and

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speakers of the legislative bodies. The intention was to have speedier adjudicative processes
under the Tenth Schedule. This provision was a subject matter of serious debate in both
Houses of Parliament when the bill was being passed.

The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection
provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it
mandatory for all those switching political sides — whether singly or in groups — to resign
their legislative membership. They now have to seek re-election if they defect and cannot
continue in office by engineering a "split" of one-third of members, or in the guise of a
"continuing split of a party". The amendment also bars legislators from holding, post-
defection, any office of profit. This amendment has thus made defections virtually
impossible and is an important step forward in cleansing politics. Irony of the situation today
is that the events have nullified the real intent of the dream of Rajiv Gandhi.

There have been instances wherein after the declaration of election results, winning
candidates have resigned from their membership of the House as well as the party from
which they got elected. Immediately, they have joined the political party which has formed
the government and have again contested from that political party, which appears to be a
fraud and goes against the spirit of the democracy and 52nd constitutional amendment. The
ingenious human brain invented innovative ideas to obtain resignations and, in effect, made
the anti-defection law a cover to hide their heinous crime.

This law excluded the jurisdiction of judiciary from reviewing the decisions of Speakers. This
part was held to be unconstitutional by Supreme Court, while it upheld the rest of the law.
The Supreme Court was unanimous in holding that paragraph 7 of tenth schedule
completely excluded jurisdiction of all courts including the Supreme Court under Article 136
and High Courts under Articles 226 and 227 in respect of any matter connected with the
disqualification of the member of a House. The Constitution does not allow the legislature to
limit the powers of judiciary. ‘The Speakers/Chairmen while exercising powers and
discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and
obligations under the Tenth Schedule and their decisions in that capacity are amenable to
judicial review’, Supreme Court said. Accordingly the Supreme Court reviewed and struck
down the order passed by Speaker of Goa Assembly for disqualifying two members in
violation of constitutional mandate contained in paragraph 3 of Tenth Schedule to the
Constitution.

If we go deep into the impact of this law, it curbs the legislators’ freedom of opposing the
wrong policies, bad leaders and anti-people bills proposed by the ‘High Command’ in
arbitrary and undemocratic manner. This law has given additional dictatorial power to the
political party to keep the flock together for an entire term.

Jeeth Choudhary in his article ‘Whether Dissent Equals Defection in the Indian Parliament?’
Concluded: “Section 2(b) of the Tenth Schedule puts the Member of Parliament into the
straight jacket of obedience to the despotic dictates of the party whips which undermines
the democratic spirit. It also violates the principle of representative democracy by
empowering the party, and undermining the relationship between elected representatives
and their constituents. The anti defection law makes a mockery of parliamentary democracy
by marginalizing debates, as the legislators are not allowed to dissent, without being

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disqualified by the House. Disruptions, rather than substantive debate, become the only
form of opposition possible. Parliamentary debate has thereby become largely redundant.
Without letting Indian politics degenerate like this, the author supports the proposed
amendment so that our politicians can be allowed to publicly and legitimately debate
political ideology, negotiate electoral prospect and be persuaded by ideas’.

The Tenth Schedule has laid down certain norms for keeping the flock of legislators of each
party together, and the ‘whips’ in the hands of legislative party leaders reducing the hon’ble
leaders and people’s representatives into shepherds and sheep. As the political parties
invented mechanisms to fail this constitutional legislation, the judiciary played a very
significant role in upholding the legality and morality of the law besides expanding its
horizons to curb most treacherous practice of sudden political disloyalty. This Tenth
Schedule whenever used enhancing the burden of courts. The political parties, instead of
maintaining standards within the party with effective leadership, are resorting to litigation,
begging the courts to decide the political issues, which they failed to settle. The Karnataka
High Court is now engaged with the issue of political leadership of ruling party and
manipulative politics of opposition party. This is another unfortunate development. It is not
fair to blame judiciary for taking time to decide this tricky question within the frame work of
constitution. Neither the Governor nor the Speaker is bona fide. Their moves are not fair.
They desperately try to use Constitutional power to settle political scores and wreck political
vengeance. In the process they just do not care the people’s will in electing a party to power,
for whatever reasons that might be.

Dependents and Independents

There are a few nominated seats provided by the Constitution in legislative houses. Unless
he is dependent, he cannot be nominated as legislator. Hence he can decide his loyalty. A
nominated member of a house will be disqualified if he joins any political party after six
months. That means law permits him to be loyal or disloyal to nominating party only for six
months. (Section 2(3) of Tenth Schedule of Constitution of India)

It is wrong to say that there are no provisions for disqualifying independent members for
defection from their ‘independent’ status. If an independent legislator joins a political party
he would lose membership. Law mandates an independent legislator to maintain the
independent status. He can choose to support any political party but should not attach
himself to any. . This decision should be supported by the material placed on record. . In
Jagjit Singh v State of Haryana the legislators were elected as Members of Assembly as
independent candidates. Later they joined a political party and news of their joining was
reported in print as well as electronic media. That fact was allegedly admitted by members
in an interview given to a TV news channel. Thereafter those members were disqualified
from being members of Assembly by Speaker. It was challenged. The Supreme Court held:
“when an independent member is alleged to have joined a political party the test to be
applied is whether the member has given up his independent character on which he was
elected. This has to be determined on appreciation of material on record and conduct of the
member of the Speaker. No hard and fast rule can be laid down when the answer is
dependent on facts of each case. The substance and spirit of anti-defection provisions are
the guiding factors”. Disqualification of these members by speaker was upheld, despite the
allegation of procedural defect in enquiry.

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Supreme Court also clarified one more question in Jagjit Singh case: “Where a sole member
of a political party in an Assembly joins another political party, he can not get protection of
paragraph 3 of Tenth Schedule of the Constitution and will be disqualified from being
member under paragraph 2 of the Tenth Schedule of the Constitution.”

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4. WHETHER SECTION 2 (B) OF 10TH SCHEDULE VIOLATES
PARLIAMENTARY PRIVILLEGES PROVIDED UNDER ARTICLE 105
OF CONSTITUTION?

PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced,
authorities cited, may this Hon’ble Court be pleased to, by appropriate writ, order
and/or direction,

a) Hold and declare this petition to be rejected.

b) Hold the speaker to be an independent adjudicatory machinery.
c) Hold the 10th schedule to be constitutional.
d) Hold that section 2 (b) of the 10th schedule does not violate parliamentary
privileges under Article 105.

AND/OR

Pass any other order it may deem fit, in the interest of justice, equity and good
conscience.

All of which is most humbly and respectfully submitted.

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Place: Indiana S/d

Date: February 03, 2018 Counsel,Respondent