INTERNAL NATIONAL MOOT COURT COMPETITION, 2018 Page 1

TEAM CODE: INRR

158

IN THE HON’BLE FEDERAL COURT OF PANDORA

ORIGINAL SUIT NO. _________ OF 2018

Clubbed with

TRANSFER PETITION NO. _________ OF 2018

In the matter between

STATE OF CONNAI AND OTHERS

v.
UNION OF PANDORA

With

MADURAI MUTHU AND OTHERS

v.
UNION OF PANDORA

ON SUBMISSIONS TO THE CONSTITUTIONAL BENCH OF THE

FEDERAL COURT

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THE TABLE OF CONTENTS

 THE TABLE OF CONTENTS………………………………………………......Page No. 2

 THE INDEX OF AUTHORITIES………………………….................................Page No. 3
 THE STATEMENT OF JURISDICTION………………….................................Page No. 5
 THE STATEMENT OF FACTS………………………………………………... Page No. 7
 THE STATEMENT OF ISSUES……………………….......................................Page No. 8
 THE SUMMARY OF ARGUMENTS……………………………………….......Page No. 9
 THE ARGUMENTS ADVANCED…………………………………………. Page No.10-24

1.Whether the Federal Court has jurisdiction to decide the present matter?
2.Whether the Court has to exercise judicial restraint in the matter of far reaching
Government policies brought through Constitutional Amendments?
3.Whether the Constitution (Amendment) Act, 2018 violates the Parliamentary system of
Government, federalism, democracy and rule of law, which are basic features of the
Constitution?
4.Whether the Representation of Citizens (Amendment) Act, 2018 violates Art. 14 of the
Constitution?
 THE PRAYER……………………………………………............................................Page No. 25

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INDEX OF AUTHORITIES:

I.CASES:

1. Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722: AIR 1981 SC 487.
2. Amarjit Singh v. State of Punjab, (1975) 3 SCC 503: AIR 1975 SC 984.
3. Ashok Kumar v. Union of India, (1991) 3 S.C.C. 498(India).
4. B.M.T. v. Muddappa, (1991) 4 SCC 54 (para. 46); AIR 1991 SC 1902.
5. B.R. Shankaranarayana v. State of Mysore, A.I.R. 1966 S.C. 1571(India).
6. Bhairendendra Narayan Bhup v. State of Assam, AIR 1956 SC 503.
7. BR Kapoor v. State of Tamil Nadu, (2001) 7 S.C.C. 231.
8. Central Coal Fields Ltd. V. Jaiswal Coal co. 1980 Supp SCC 471.
9. Directorate of Film Festivals v. Gaurav, 2007 4 SCC 737 (746): AIR 2007 SC 1640.
10. E.P.Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, 38; AIR 194 SC 555.
11. E.V. Chinnaiah v. State of A.P., (2005) 1 S.C.C. 394(India).
12. East Coast Railway v. Mahadev Appa Rao; (2010) 7 SCC 678.
13. In Re Special Courts Bill, (1979) 1 S.C.C. 380(India).
14. In the matter of: Under Article 143 of the Constitution of India, A.I.R. 1965 S.C.745
(India).
15. Jaswant Singh Gurjar v. Hon'ble Speaker, Rajasthan Vidhansabha, A.I.R. 2011 Raj. 1
(India).
16. K.C. Gajapati Narayana Deo and Ors v. The State of Orissa, AIR 1953 SC 375: 1954
SCR 1.
17. Kanhaiya Lal Omar v. RK Trivedi, AIR 1986 SC 111, para 10.
18. Keshavananda Bharati Sripadagalvaru v. State of Kerala, A.I.R. 1973 S.C. 1461;
(1973) 4 SCC 225.
19. Kumari Shrilekha Vidyarthi & Ors. v. State of U.P. & Ors., [1990] Supp 1 SCR. 625;
AIR 1991 SC 537.
20. Maganlal Chhaganlal (P) Ltd v. Municipal Corpn. Of Greater Bombay, AIR 1974 SC
2009: (1974) 2 SCC 402.
21. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; AIR 1978 SC 597.
22. Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789.
23. Neelima Mishra v. Harinder Kaur Paintal, (1990) 2 SCC 746: AIR 1990 SC 1402.
24. P. Sambamurthy v. State of Andhra Pradesh (1987) SCC 362.
25. Paradise Printers v. Union Territory of Chandigarh, (1988) 1 SCC 440: AIR 1988 SC
354.
26. Prakash Singh Badal v. Union of India, AIR 1987 P&H 263.
27. Punjab Vidhan Sabha v Prakash Singh Badal, 1987 (Supp) SCC 61.
28. Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3 S.C.C. 18 (India).
29. Ramdas Athwale v. Union of India, (2010) 4 S.C.C. 1 (India).
30. S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124.
31. Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223: AIR 1990 SC 1277.
32. S.R. Bommai vs Union of India, (1994) 3 S.C.C. 1(India).
33. State of A.P. v. McDowell & Co., (1996) 3 S.C.C. 709(India).
34. State of Bihar v. Kameshwar Singh, AIR 1952 SC 458.

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35. State of Karnataka v. Union of India, AIR 1978 SC 68: (1977) 4 SCC 608.
36. State of M.P. v. Mahalaxmi Fabric Mills Ltd., A.I.R. 1995 S.C. 2213(India).
37. State of M.P. v. Rakesh Kohli, (2012) 6 S.C.C. 312(India).
38. State of Punjab v. Khan Chand, AIR 1974 SC 543 (paras. 5.8); (1974) 1 SCC 549.
39. State of Rajastan v Union of India AIR 1977 SC 1361 :1978 1 SCR 1: (1977) 3 SCC
592.
40. Swayambar Prasad v. State of Rajastan, AIR 1972 Raj 69.
41. Union of India v. Kuldeep Singh, AIR 2004 SC 1194; (2004) 2 SCC 590.
42. Union of India v. Radhika Backliwal, (2003) 2 SCC 316.
43. Waman Rao v. Union of India, (1981) 2 SCC 362.
44. Yogendra Kumar Biswal v. State of Bihar, (2016) 3 S.C.C. 183 (India).

II. BOOKS
1. H.M. SEERVAI, CONSITUTION LAW OF INDIA (4TH ed., 2003).
2. M.P.JAIN, INDIAN CONSTITUTIONAL LAW ( 7TH ed., 2016).
3. D.D.BASU , COMMENTARY ON CONSTITUTION OF INDIA (8TH ed., 2009).
4. SAMARADITYA PAL, INDIA'S CONSTITUTION: ORIGINS AND EVOLUTION,(
1ST ed., 2015).
5. M.P. JAIN, PRINCIPLES OF ADMINITRATIVE LAW, (6THed.,2010).
6. V. N. SHUKLA, CONSTITUTION OF INDIA (13TH ed., 2017).

III. ONLINE RESOURCES

1.MANUPATRA
2. JSTOR
3.LEXIS NEXIS
4.SCC ONLINE

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THE STATEMENT OF JURISDICTION

It is humbly submitted that both Petitioners have approached the Hon’ble Federal Court by
Article 131 of the Constitution of India,1949 read with Article 139A of the Constitution of
India, 1949.

Article 131 in The Constitution Of India 1949

131. Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution,
the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in
any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more
other States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question (whether
of law or fact) on which the existence or extent of a legal right depends: Provided that the
said jurisdiction shall not extend to a dispute arising out of any treaty, agreement,
covenant, engagements, and or other similar instrument which, having been entered into or
executed before the commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to such a
dispute.
Article 139A in The Constitution Of India 1949
139A. Transfer of certain cases
(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High
Courts and the Supreme Court is satisfied on its own motion or an application made by the
Attorney General of India or by a party to any such case that such questions are
substantial questions of general importance, the Supreme Court may withdraw the case or
cases pending before the High Court or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of law return
any case so withdrawn together with a copy of its judgment on such questions to the High
Court from which the case has been withdrawn, and the High Court shall on receipt
thereof, proceed to dispose of the case in conformity with such judgment
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer
any case, appeal or other proceedings pending before any High Court to any other High
Court

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THE STATEMENT OF FACTS

1. The Election Commission of Pandora, it is an autonomous and independent body and

insulated from political pressures or executive influence. It has faced numerous problems
in every General Election and has also undergone reforms at regular intervals.
2. In 2014, the Global Jan Party (GJP) formed the Government with absolute majority. They
introduced many far-reaching policies and attempted to bring major reforms in economy
and justice administration with not much success as in the case of demonetization and
Constitutional Courts Judges Appointment Act, 2015.
3. The Election Commission is conducting elections almost every six months and the GJP’s
major concern in conducting frequent elections are huge expenses to the Government. A
plan to synchronize the elections of Lok Sabha and State Assembly Elections was devised,
which was grave threat to federalism. The Government could not get the consensus
because the regional parties were against this proposal.
4. Meanwhile, the GJP won the elections of many State Assemblies and formed the
Government either with coalition of regional parties or securing absolute majority. So,
they brought an amendment in the Constitution to avoid premature dissolution of the Lok
Sabha and State Legislative Assemblies due to no confidence motion and Representation
of Citizens Act, 1951. To synchronize the Lok Sabha and State Assembly Elections, the
Parliament brought an amendment in the Representation of Citizens Act, 1951 by reducing
the tenure of certain State Assemblies to maximum of 25 months and extending the tenure
of certain State Assemblies to maximum of 26 months. The states ruled by non-GJP were
worst affected because of the reduction of the tenure of their Government. The Parliament
passed the Constitution (Amendment) Bill, 2018 and Representation of Citizens
(Amendment) Bill, 2018 and got the ratification of half of the States because the GJP were
ruling in 19 States and four Union Territories. It was enforced immediately.
5. The amendments were challenged in many High Courts by the citizens through PIL.The
States ruled by non-GJP Government filed a petition before the Federal Court. The
amendments are arbitrary and biased towards the States ruled by non-GJP Government.
This Federal Court transferred all the petitions pending before the High Courts to itself and
sent notice to the Federal Government. A 15-judge Bench to review the Kesari Bhagwan
case, wherein a 13-judge Bench laid down the Doctrine of Basic structure, was constituted.

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THE STATEMENT OF ISSUES

1. WHETHER THE FEDERAL COURT HAS JURISDICTION TO DECIDE THE

PRESENT MATTER?
1.1 The Federal Court has Original Jurisdiction by virtue of Article 131 of the Constitution
of India in the Petition filed by State of Connai and others.
1.2 The Federal Court has original Jurisdiction by virtue of Article 139A of the Constitution
of India in the Petition filed by Madhurai Muthu and others.
1.3 Limited Scope of Article 122 of the Constitution of India.
1.4 That the instant petition involves a substantial question of law as to interpretation of
Constitution.
2. WHETHER THE COURT HAS TO EXERCISE JUDICIAL RESTRAINT IN THE
MATTER OF FAR REACHING GOVERNMENT POLICIES BROUGHT THROUGH
CONSTITUTIONAL AMENDMENTS?
2.1 Judicial Review is part of Basic Structure of Constitution.
2.2 That the Judiciary can intervene in matters of Political Interest.
2.3 That the Judiciary can intervene in Policy matters.
2.4 That the Parliament lacks Legislative Competency to pass the impugned act.
2.5 The case of Keshavananada Bharti cannot be revisited.
3. WHETHER THE CONSTITUTION (AMENDMENT) ACT, 2018 VIOLATES THE
PARLIAMENTARY SYSTEM OF GOVERNMENT, FEDERALISM, DEMOCRACY
AND RULE OF LAW, WHICH ARE BASIC FEATURES OF THE CONSTITUTION?
3.1 Democratic Principles which is one of the cherished ideals of Rule of Law has been
violated.
3.2 The Amendment violates the Parliamentary system of Government.
4. WHETHER THE REPRESENTATION OF CITIZENS (AMENDMENT) ACT, 2018
VIOLATES ART. 14 OF THE CONSTITUTION?
4.1 there is a lack of intelligible differentia in amendment to the Representation of Citizens Act
1951 and is Arbitrary in nature.
4.2 there is a lack of nexus in regard to object of the Representation of the Citizens Act 1951
and the Amendment Act 2018.

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THE SUMMARY OF ARGUMENTS

1. Whether the Federal Court has jurisdiction to decide the present matter?

It is submitted before this Honourable Court that the Court does have the jurisdiction to hear
the present matter under Article 131 read with Article 139A of the Constitution of India.
Secondly the scope of Article 122 is limited to procedural irregularity and not
unconstitutionality. Thirdly the instant petition involves a substantial question of law.

2.Whether the Court has to exercise judicial restraint in the matter of far reaching
Government policies brought through Constitutional Amendments?

It is submitted before this Honourable Court that Judicial Review is part of Basic Structure of
Constitution; secondly that the Judiciary can intervene in matters of Political Interest; thirdly
the Judiciary can intervene in Policy matters; fourthly the Parliament lacks Legislative
Competency to pass the impugned act and lastly the case of Keshavananada Bharti cannot be
revisited.

3.Whether the Constitution (Amendment) Act, 2018 violates the Parliamentary system of
Government, federalism, democracy and rule of law, which are basic features of the
Constitution?

It is most respectfully submitted that the Doctrine of Basic Structure has been violated in the
present case. The Basic Features Of The Constitution constitute the unalterable part of The
Constitution. It has conferred a limited power of amendment on the Parliament. Thus the
Parliament cannot, under the exercise of that limited power, enlarge that very power into an
absolute power.
4. Whether the Representation of Citizens (Amendment) Act, 2018 violates Art. 14 of the
Constitution?
It is submitted before the Honourable Court that the Representation of Citizens (Amendment)
Act, 2018 is violative of Article 14 as there is a clear lack of intelligible differentia and is
proved to be arbitrary. It is also submitted that the amendment was at the whims of Legislature
which satisfies the requirements of a colourable legislation.

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THE ARGUMENTS ADVANCED

1. WHETHER THE FEDERAL COURT HAS THE JURISDICTION TO HEAR THIS

CASE?

It is humbly submitted before this Hon’ble Court that, the Federal Court does have the
jurisdiction to look into the passing of Constitution (Amendment) Bill, 2018 and
Representation of Citizens (Amendment) Bill 2018. The petitioners contend the same on the
following limbs:

1.1 THE FEDERAL COURT HAS ORIGINAL JURISDICTION BY VIRTUE OF

ARTICLE 131 OF THE CONSTITUTION OF INDIA IN THE PETITION FILED BY
STATE OF COINAI AND OTHERS.

Referring to the original jurisdiction of the Supreme Court of India, D.D. Basu said
“Though our federation is not in the nature of the treaty or compact between the component
units, there is nevertheless a division of legislative as well as administrative powers between
Union and the States Article 131 of our constitution therefore vests the Supreme Court with
original and exclusive jurisdiction to determine justiciable disputes between the Union and
the states or between the States inter se”

The sole condition which is required to be satisfied for invoking the original jurisdiction of
the Supreme Court is that the dispute between the parties referred in clauses a) to c) must
involve a question (whether of law or of fact) on which the existence or extent of a legal right
depends. The article is a necessary concomitant of a federal or a quasi-federal form of
government of India or one or more States arrayed on either side. 1 It is not necessary that the
right must be constitutional right. All that is required it that it must be a legal right2.

The term ‘legal right’ in this Article is a right of a party recognized and protected by a rule
of law, the violation of which would be a legal wrong done to his interest and respect for
which is a legal duty, even though no action may lie. The only ingredients are legal
recognition and a legal protection, and not enforceability by action in a court of law.

1
State of Karnataka v. Union of India, AIR 1978 SC 68: (1977) 4 SCC 608
2
State of Rajasthan v Union of India AIR 1977 SC 1361

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The expression “legal right” has been liberally interpreted 3 to include the following
question: A question raised by a state as to the right of the Union to dissolve the State
Assembly and the contrary right of the state to maintain the federal basis of the Constitution
against violation by the Union4 or an unconstitutional exercise by the Union.

The word State has been liberally interpreted to include not only the juristic entity of a
State included within the Union of India, but also the government of a State, in the generic
sense.5 In this sense the word ‘Union’ would represent the whole of the people of India and
their interests while the word ‘State’ would represent a part thereof, namely the people
residing in a State and their interest.6

The dispute between the Union of India and a State cannot but be a dispute which arises
out of differences between the Government in office at the Union and the Government in
office in the State. The fact that the State acts through ministers cannot effect the
maintainability of a suit under Article 131. The State can act not merely through the Council
of Ministers or the Government as a whole but also through individual ministers. Hence the
official acts of a minister cannot be distinguished from those of the State on whose behalf he
acts.

1.2 THE FEDERAL COURT HAS ORIGINAL JURISDICTION BY VIRTUE OF

ARTICLE 139A OF THE CONSTITUTION OF INDIA IN THE PETITION FILED BY
MADHURAI MUTHU AND OTHERS.

I. THE INSTANT PETITION FILED BY MADURAI MUTHU AND OTHERS IS

MAINTAINABLE IN PUBLIC INTEREST:

In the landmark case of S.P. Gupta v. Union of India 7 , the Supreme Court has laid down
the following principles for a Public Interest Litigation (herein referred as PIL): 1.Public
Interest2. Broad view of Locus Standi 3. Bona Fide Act

Thus, in the instant case, the petitioner, with the motto of public interest with bona fide
intention has filed this petition under Article 226 of the Indian Constitution for the betterment

3
State of Rajasthan v Union of India AIR 1977 SC 1361 :1978 1 SCR 1 :1977 3 SCC 592
4
State of Rajasthan v Union of India AIR 1977 SC 1361 :1978 1 SCR 1 :1977 3 SCC 592
5
State of Karnataka v. Union of India, AIR 1978 SC 68: (1977) 4 SCC 608
6
State of Rajasthan v Union of India AIR 1977 SC 1361 :1978 1 SCR 1 :1977 3 SCC 592
7
1981 (Supp) SCC 87: AIR 1982 SC 149.

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of the Society at large and not for any personal gain or profit or benefit. It is contended that
the petition filed by Mr Madurai is valid owing to the wide ambit of Article 226. A High
Court may also exercise discretionary and equitable jurisdiction under Article 226. Similarly
assuming but not admitting that there has been no violation of fundamental rights, it is still
maintainable as Article 226 may be invoked for any “other purpose” as well. The orders
passed by the Court need not be restricted to the writs as the sole remedy; but may include any
other such directions as the High Court may deem fit.8

II. THAT THE FEDERAL COURT HAS TRANSFERRED THE PETITION TO

ITSELF AND THIS IS NO BAR TO MAINTAIN THE PETITION.

Although the Petitioner Madhurai Muthu and others had approached the Hon’ble Sun High
Court and other High Courts, the Federal Court transferred the case by virtue of Article 139A
of the Constitution since the instant petition involves a substantial question of law as to
interpretation of the Constitution. Therefore, it is humbly submitted before this Hon’ble Court
that the instant petition is maintainable.

Article 139A Clause (1)9 of the Constitution imports the provides that when the same or
similar substantial question of law of general importance are involved in cases pending before
several High Courts, the Supreme Court shall have the power to withdraw such cases to itself
for determination of such questions or disposal of such cases It is intended to save time and
expense of the parties to the litigation by making a provision for final pronouncements on a
substantial question of law by the Supreme Court in that prolonged litigation. 10 The Supreme
Court may transfer to itself writ petition pending before various High Courts raising similar
question where legal points are to be decided “as expeditiously as possible” and to avoid
conflict of decisions11.

1.3 LIMITED SCOPE OF ARTICLE 122 OF THE CONSTITUTION OF INDIA.

Article 122 of the Constitution provides that the validity of any proceedings in the
Parliament shall not be called in question on the ground of any alleged irregularity of
procedure12. The immunity granted by clause (1) of Article 122 has been expressly limited to

8
Swayambar Prasad v. State of Rajasthan AIR 1972 Raj 69.
9
CL (1) was substituted by the Constitution (44th Amendment) Act, 1978 (w.e.f 1-8-1979)
10
Punjab Vidhan Sabha v Prakash Singh Badal, 1987 (Supp) SCC 61.
11
Union of India v. Radhika Backliwal, (2003) 2 SCC 316.
12
Jaswant Singh Gurjar v. Hon'ble Speaker, Rajasthan Vidhansabha, A.I.R. 2011 Raj. 1 (India).

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'irregularity of procedure' and not to substantive unconstitutionality 13. If the action taken or
order passed is ex facie illegal, unlawful or unconstitutional, the Parliament cannot prevent
judicial scrutiny thereof.14 A citizen can challenge the validity of proceedings within a
legislative chamber if the proceedings suffer from unconstitutionality and not mere
irregularity15. The Article is a check on the role of judicial organ vis-à-vis proceedings in the
Parliament and must be treated as a constitutional mandate on the subject16.

1.4 THAT THE INSTANT PETITIONS INVOLVE A SUBSTANTIAL QUESTION OF

LAW AS TO INTERPRETATION OF CONSTITUTION.

It is submitted that, as the ultimate interpreter of the Constitution, the Supreme Court is to
determine whether any action of any branch of the Government has transgressed the limits
imposed by the constitution. If the question raises constitutional issues, it is not only the
power, but the duty of the court to deal with and determine the controversy. The court cannot
and should not shrink this responsibility because it has sworn its oath of allegiance to the
Constitution and is also accountable to the people of the country17

The Court cannot accordingly decline to examine whether any of the limitations imposed
by the constitution has been violated by the executive “merely on the facile ground that the
question is political in tone, colour or complexion nor on the ground that it would lead to a
confrontation with another branch of law.18 Whether an authority under the constitution has
acted within the limits of its power or exceeded can be decided only by the court 19. Where the
question relates to the interpretation of constitution, it is the duty of the Supreme Court to
interpret it regardless of the fact that the answer to the question would have political effect20.

2.WHETHER THE COURT HAS TO EXERCISE JUDICIAL RESTRAINT IN THE

MATTER OF FAR REACHING GOVERNMENT POLICIES BROUGHT THROUGH
CONSTITUTIONAL AMENDMENTS?

13
Ramdas Athwale v. Union of India, (2010) 4 S.C.C. 1 (India).
14
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3 S.C.C. 18 (India).
15
In the matter of: Under Article 143 of the Constitution of India, A.I.R. 1965 S.C.745 (India).
16
Yogendra Kumar Biswal v. State of Bihar, (2016) 3 S.C.C. 183 (India).
17
In Re Special Courts Bill, (1979) 1 S.C.C. 380(India); SR Bommai vs Union of India(1994) 3 S.C.C. 1(India).
18
State of Rajasthan v. Union of India A.I.R. 1977 S.C. 1361(India).
19
Minerva Mills Ltd v. Union of India A.I.R. 1980 S.C. 1789.
20
BR Kapoor v. State of Tamil Nadu, (2001) 7 S.C.C. 231; State of Rajasthan v. Union of India (1977) 3 SCC
592.

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It is humbly submitted before this Hon’ble Court that; the court need not exercise judicial
restraint in the matter of far reaching government policies brought through constitutional
amendments. The petitioners contend the same on the following limbs:

2.1 THAT JUDICIAL REVIEW IS A PART OF BASIC STRUCTURE OF THE

CONSTITUTION:
The judicial process is not a bucket of readymade answers, but a process or technique, for
easing an endless flux of changing social tensions. 21 Article 13 of Constitution of India confers
upon the duty on the High Court and Supreme Court to interpret the fundamental rights and
casts an obligation to judicially review any law that is inconsistent or derogatory to the
fundamental rights to be struck down. The Apex Court in the Minerva Mills v. Union of
India22 case has rightly defined the function and the duty conferred upon the Judiciary in the
matter of fundamental rights. It reads: “It is the function of the Judges, nay their duty, to
pronounce upon the validity of laws. If courts are totally deprived of that power, the rights
conferred upon the people will become a mere adornment because rights without remedies
are writs in water. A controlled Constitution will then become uncontrolled”23
The petitioner submits that any law cannot escape the purview of Judicial Review under
Article 13. This has been reiterated by the highest court of the land in the famous case His
Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.24 that
Judicial review is an indispensable part and constitutes the basic structure and under no
circumstances shall any law that violates the fundamental right be upheld as valid :
“As long as some fundamental rights exist and are a part of the Constitution, the power of
judicial review has also to be exercised with a view to see that the guarantees afforded by
these rights are not contravened….Judicial review has thus become an integral part of our
Constitutional system…”25
2.2 THAT THE JUDICIARY CAN INTERVENE IN MATTERS OF POLITICAL
INTEREST.
“Political question is an open sesame expression that can become a password for granting
or preventing admission into forbidden fields.”26

21
2011 2 SCC 575,580.
22
Minerva Mills v. Union of India, AIR 1980 SC 1789.
23
Minerva Mills , AIR 1980 SC 1789.
24
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., AIR 1973 SC 1461
25
Keshavnanda bharati , AIR 1973 SC 1461.
26
State of Rajasthan v Union of Inida, (1977) 3 SCC 592.

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It is true that if a question brought before the court is purely a political question not
involving determination of any legal or constitutional right or obligation, the Court would not
entertain it, since the Court is concerned only with adjudication of legal rights and liabilities.
But merely because a question has political complexion, that by itself is no ground why the
Court should shrink from performing its duty under the Constitution if it raises an issue of
constitutional determination. The constitutional law cannot be “entirely divorced from
considerations of political policies27.Merely because of a political complexion, the court
cannot fold its hand in despair and declare judicial hands off. So long as a question arises
whether an authority under the Constitution has acted within the limits of its power or
exceeded it, it can certainly be decided by the court. Indeed, it would be its constitutional
obligation to do so.

A constitution is a matter of purest politics, a structure of power and ‘constitutional law

symbolises as intersection of law and politics, wherein issues of political power are acted on
by persons trained in the legal tradition, working in judicial institutions, following the
procedures of law thinking as lawyers think.

2.3 THAT THE JUDICIARY CAN INTERVENE IN POLICY MATTERS:

There is no doubt that the court has held in more than one case that where the decision of
the authority is in regard to a policy matter, the court will not ordinarily interfere since these
policy matters are taken based on expert knowledge of the person concerned and courts are not
normally equipped to question the correctness of a policy decision. But then this does not
mean that the courts have to abdicate their right to scrutinise whether the policy in question is
formulated keeping in mind all the relevant facts and the said policy can be held to be beyond
the pale of discrimination or unreasonableness, bearing in mind the material on record. 28Any
decision, be it a simple administrative decision or a policy decision, it taken without
considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then
being it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the
Constitution. Legality of the policy and not the wisdom or soundness thereof, is the subject of
judicial review.29 While courts cannot be and should not be makers of policy, they can
certainly be catalysts, where there is a need or change of a policy.

27
State of Rajasthan v Union of India, (1977) 3 SCC 592.
28
498 SCC :3891 (AIR).
29
Directorate of Film Festivals v. Gaurav, 2007 4 SCC 737 (746) :AIR 2007 SC 1640.

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2.4 THAT THE PARLIAMENT LACKS LEGISLATIVE COMPETENCY TO PASS

THE IMPUGNED ACT.

It is submitted that a legislative enactment can be struck down by the court only on two
grounds, namely (i) that the appropriate legislature does not have the competence to make the
law, and (ii) that it does not take away or abridge any of the fundamental rights enumerated in
Part III or any other constitutional provisions.30 The Constitution enumerates various items of
legislation in three lists: List I – the Union List; List II – the State List; List III – the
Concurrent List.31 Thus, the Constitution (Amendment) Bill, 2018 and Representation of
Citizens (Amendment) Bill 2018, must fall within the entries of Schedule VII, List I in order
for it to be competent. It is submitted that the impugned enactment is colourable in nature and
thus deserves to be struck down as unconstitutional.
It is submitted that the concept of colourable legislation has a well-defined connotation so
far as parent legislation is concerned,32 and is only relevant in connection with the question of
legislative competency.33 The doctrine conveys that a legislature in passing a statute purports
to act within the limits of its powers yet in substance and in reality, it transgresses those
powers, the transgression being viewed by what appears on proper examination to be mere
pretence or disguise.34
It is pertinent to note that no entry in the Lists as provided under the Constitution provide
for the collaboration of the State Assembly and Lok Sabha Elections.
On application of the doctrine of “Pith and Substance” 35, and on perusal of the object of the
impugned Act, the provisions of the Act fall outside the ambit of the object and legislative
competence of the Parliament.
2.5.THE CASE OF KESHAVANANDA BHARTI CANNOT BE REVISITED.

30
State of M.P. v. Rakesh Kohli, (2012) 6 S.C.C. 312(India); State of A.P. v. McDowell & Co. (1996) 3 S.C.C.
709(India).
31
V. N. SHUKLA, CONSTITUTION OF INDIA (13th ed., 2017).
32
State of M.P. v. Mahalaxmi Fabric Mills Ltd., A.I.R. 1995 S.C. 2213(India).
33
Bhairendendra Narayan Bhup v. State of Assam, AIR 1956 SC 503; B.R. Shankaranarayana v. State of Mysore,
A.I.R. 1966 S.C. 1571(India).
34
Ashok Kumar v. Union of India, (1991) 3 S.C.C. 498(India).
35
E.V. Chinnaiah v. State of A.P., (2005) 1 S.C.C. 394(India).

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It is humbly submitted that the Basic Structure as laid down in Keshavananda Bharti v.
Union of India36 and reaffirmed in plethora of other cases cannot be revisited. The amending
power cannot be exercised in such a manner as to destroy or emasculate the basic or essential
features of the Constitution, including the sovereign, democratic and secular character of the
polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. As
Justice Chandrachud had exquisitely laid down- ―amend as you may even the solemn
document which the founding fathers have committed to your care, for you know best the
needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot
destroy its identity.37
Further the argument involving the ambiguity in the definition of the basic structure stands
negated as the Court in Keshavanada Bharti addressed this issue and held that - The doctrine
of basic structure cannot be said to be vague merely because it cannot be rigidly defined or
all the elements of basic structure have not been enumerated. Moreover, it is not possible to
enumerate all the elements in one-go and it is not needed as well. The Court also held that
merely because a particular concept of law cannot be rigidly defined, it does not cease to be a
concept of law.
The court in the aforementioned case also ventured into the meaning of the word ‘amend’
it was held that -The court enjoys a very restrictive connation and the court can look into the
validity if it threatens to nullify or destroy any fundamental feature of the Constitution. The
court also held that the amending power of the legislature shall be subject to a doctrine called
the doctrine of ‘basic structure’ and therefore the parliament cannot use its constituent power
under Article 368 so as to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the
'basic structure' or framework of the Constitution.
It is essential for us to put limitations on the amending power of the Parliament because if
such power will not be there then, a day may come, when it will be made a criminal offence to
criticize the government in power and we may not be left with our basic inalienable rights
what the Constitution guarantees to us in Part III. This doctrine protects our basic rights and
every acts of the Parliament is now subject to this doctrine, and put a full stop on the
unconstitutional Constitutional amendments game of the Parliament in I. R. Coelho38 case

36
AIR 1973 SC 1461.
37
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
38
A.I.R. 2007 S.C. 861.

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where the Ninth Schedule was enacted with the purpose to give effect to laws relating to land
reforms which were unconstitutional and arbitrary in nature.
Hence in the light of the above mentioned arguments it is submitted that the concept of
Basic Structure as laid down in the Keshavananda Bharti case should not be revisited as it is
an indispensable and inseparable part of the constitution and is not open to amendment by the
Parliament.
3. DOCTRINE OF BASIC STRUCTURE: AMENDMENT HAS DESTROYED THE ESSENTIAL
FEATURES OF THE CONSTITUTION
It is respectfully submitted that the Doctrine of Basic Structure has been violated in the
present case. The Parliament cannot, under the exercise of that limited power, enlarge that
very power into an absolute power. A limited amending power is one of the basic features of
the Constitution and, therefore, the limitations on that power cannot be destroyed.39 The rule
of law40 and judicial review were held as basic structure in Waman Rao41 Sampath Kumar42
and Sambamurthy43cases.44
3.1 Democratic Principles which is one of the Cherished Ideals of Rule Of Law Has Been
Violated.

3.1.1 Dilution of Anti Defection Laws would lead to the Violation of Democratic
Principles.

It is humbly submitted that Anti Defection laws are essential part of Democratic Principles
and their dilution would hamper the right to Free and Fair elections and in turn the Democratic
System. The Tenth Schedule recognizes the importance of political parties in our democratic
set up specially in dealing with members of Parliament and the object and scope of the Anti-
defection law incorporated under Tenth Schedule is to curb the evil of political defections
motivated by lure of office or other similar considerations which endanger the foundations of
democracy.45

The amendment to Section 2(1)(b) of the Tenth Schedule of the Constitution which would
allow the members to go against the directions of the Whip of their political party to ensure
39
Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789
40
Rule of law was also held impliedly as basic structure in the Golakh Nath Case by Justice Mudholkar.
41
Waman Rao v. Union of India, (1981) 2 SCC 362.
42
S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124.
43
P. Sambamurthy v. State of Andhra Pradesh (1987) SCC 362.
44
Central Coal Fields Ltd. V. Jaiswal Coal co. 1980 Supp SCC 471.
45
Prakash Singh Badal v. Union of India, AIR 1987 P&H 263.

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continuity of the House without disqualifying the members would lead to gross violations of
Principles of Democracy.

In Kuldip Nair v Union of India it was held that -Being a member of political party on whose
ticket he has been elected as a member, in the first place, he is generally expected to follow
the direction of the party, which is one of the basic units in our democracy.46 Hence it can be
concluded that amendment to Section 2(1)(b) and dilution of Anti Defection Laws would lead
to violations of basic unit of Democracy.

3.1.2 Simultaneous Elections Would Lead to Voter Bias

It is humbly submitted that simultaneous elections lead to a voter bias especially in favor
for National Parties. Various authors have opined that conduction of simultaneous election
will blur the difference between National and Regional issues which will lead to trivialization
of regional issues and, conversely, nationalization of elections.47 It is further submitted that
such conclusion rests on the assumption that Voters, while voting in a simultaneous elections
for two tiers, will not be able to distinguish national issues from regional issues (or vice versa)
and more often than not, the voters will end up voting for the same party at both the tiers
(provided that such an option is available to them).48
The existence of empirical data further substantiates that simultaneous elections lead to a
voter bias for National Parties. This analysis is based on the widely cited Chhokar-Kumar
study.49 Simultaneous Elections held during and post 1989 are analyzed using the most reliable
data available i.e., the election statistics released by the Election Commission of India. 50 The
overwhelming pattern that has emerged in this analysis is that whenever elections are held
simultaneously, the voters mostly vote for the same party. In 7 out of total 9 instances of

46
AIR 2006 SC 3127.
47
See, e.g., Louise Tillin, Is holding Simultaneous Elections for Lok Sabha and State Assemblies necessarily a
Good Idea?, July 18, 2016, available at https://scroll.in/article/810995/is-holding-simultaneous-elections-forlok-
sabha-and-state-assemblies-necessarily-a-good-idea (Last Visited on July 5, 2018); HINDUSTAN TIMES,
Why Simultaneous Elections are Bad for India’s Democracy, March 16, 2018,
https://www.hindustantimes.com/columns/why-simultaneous-elections-are-bad-for-india-s-democracy/story-
2iRW7VIoNL59X2162NvCQL.html available at (Last visited on July 5 , 2018).
48
see Praveen Chakravarty (IDFC Institute), Nudging the Voter in One Direction?, September 08, 2016,
available at http://www.thehindu.com/opinion/op-ed/state-assembly-elections-nudging-the-voter-in-onedirection/
article8438114.ece (Last visited on July 5 ,2018).
49
Jagdeep Chhokar & Sanjay Kumar (CSDS), The Case against Simultaneous polls, November 1, 2016,
available at http://www.thehindu.com/opinion/lead/The-case-against-simultaneous-polls/article15000825.ece
(Last visited on July 5, 2018).
50
The Database can be accessed here, http://eci.nic.in/eci_main1/electionstatistics.aspx.

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significant variation and of 38 recorded instances of Simultaneous Elections, the variation has
been purely because of voting behavior (18.5% of the total number of Simultaneous elections).
Further an analysis published in the Quint predicts that it is national parties who stand to gain
the most if the elections are made simultaneous.51

3.2 The Amendment Violates the Parliamentary System Of Government.

It is humbly submitted that the amendment to the Article 83 would hamper the
parliamentary system and would lead to chaos due to no time lapse between the vote and
election, motion for no-confidence, as it existed earlier in the Lok Sabha Rules, allowed for a
30 day period for preparation for the vote itself. 52 It is contended that this thirty-day period can
be used for the search of an alternative government or an alternative working coalition,
especially in the case of a multi-party democracy such as India. Further in the present system
the Prime Minister is prevented from attempting to advise the President to dissolve the House
in the pendency of the alternative government coming to power, and sending the country into
early election.
Further it would also lead to president possessing arbitrary power which was not
envisioned by the drafters of our constitution The system purported to be made in the Indian
constitution is somewhat analogous to the 5 th republic of 1958, which gave the president of
France the ultimate power and also in Argentina and Philippines. This can be dubbed as
53
“Hyper Presidentialism” , which was not in accordance with the French constitution that
attributed sovereignty to its people through the representative form of government.
The existence of a permanent house also speaks volumes regarding the said doctrine. In
the case of U.N.R. Rao v. Smt. Indira Gandhi 54, the issue before the court was whether cabinet
would sustain even after the parliament is dissolved, this was answered by the court in the
affirmative. Yet another sign of India’s parliamentary system being upheld.
Federation is the existence of dual polity. Federalism is a principle of government which
defines the relationship between Central Government at the national level and its constituent

51
Rakesh Dubbudu, Simultaneous Elections: Who Stands to Benefit the Most?, THE QUINT, October 6, 2017,
available at https://www.thequint.com/news/politics/simultaneous-elections-who-stands-to-benefit-the-most
(Last visited on May 12, 2018)
52
Ruchi Tyagi, The President of India: The Constitutional Head with Discretionary Powers, INDIAN
JOURNALOF PUBLIC ADMINISTRATION 63(3) (2017).
53
29 Berkeley Journal of International Law 246 (2011)
54
1971 AIR 1002

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units at the regional, state or local levels.55 In S.R. Bommai v. Union of India 56, the Court
considered the nature of federalism under the Constitution of India. A.M. Ahmadi, J.
observed: "In order to understand whether our Constitution is truly federal, it is essential to
know the true concept of federalism. Dicey calls it a political contrivance for a body of States
which desire Union but not unity. Federalism is, therefore, a concept which unites separate
States into a Union without sacrificing their own fundamental political integrity. Separate
States, therefore, desire to unite so that all the memberStates may share in formulation of the
basic policies applicable to all and participate in the execution of decisions made in
pursuance of such basic policies. Thus the essence of a federation is the existence of the
Union and the States and the distribution of powers between them. Federalism, therefore,
essentially implies demarcation of powers in a federal compact

Therefore, simultaneous elections would prevent the transparency of either one of the
elections. Federalism has the concept of dual government wherein each state has a government
and the centre has a separate government overlooking the state government 57. However, the
state government is not subordinate to the parliament; they have completely different
functions, specifically the state and concurrent list. In ITC Ltd. v. Agricultural Produce
Market Committee58, the Court observed that the Constitution of India deserves to be
interpreted, language permitting, in a manner that it does not whittle down the powers of the
State Legislature and preserves federalism.

It is humbly submitted that if and when India holds simultaneous elections, it would put an
end to federalism which is a basic feature of the constitution 59. The psychological effect upon
individuals who are voting for the centre and the state simultaneously would have an adverse
effect on the democratic nature of the Indian Constitution. Any prudent individual would not
vote for different parties at the centre and the state. In addition to this there would be no
possible lapse of time for an individual to ponder on the fact as to whether his decision to vote
for the party in question was right or wrong. (put a known psychologist name) This would
give a clear advantage to those parties at the national level and even to those parties which
have a large avenue of resources. This would then be clearly arbitrary and unconstitutional to

55
Prof. K.C. Wheare, Federal Government, 1963 Edn. at page 33.
56
(1994) 3 SCC 1
57
Kanhaiya Lal Omar v. RK Trivedi, AIR 1986 SC 111, para 10.
58
(2002) 9 SCC 23
59
Keshavananda Bharati Sripadagalvaru v. State of Kerala [A.I.R. 1973 S.C. 1461; (1973) 4 SCC 225.

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the regional parties that work solely for the benefit for their state. Furthermore with the
amendment under article 368, horse trading would fall into effect and would inherently
encourage ministers to switch from one party to another when they would receive the portfolio
of their choice and they would not come under any form of scrutiny. The slightest threat to
federalism would compel the court to declare the threat, in this case the amendment to the
tenth schedule, to be null and void and against the spirit of the constitution. Therefore, striking
down the amendment to the tenth schedule as it would cause the violation of concept of
collaborative federalism and concept of federal balance as envisaged in SR Bommai v Union
of India , which is a basic feature of the constitution.

4. Whether the Representation of Citizens (Amendment) Act, 2018 violates Art. 14 of the
Constitution?

It is respectfully submitted before this Hon’ble Court that the Representation of Citizens
(Amendment) Act, 2018, is violative of Article 14 of the Constitution. There is a clear lack of
Intelligible Differentia in the amendment to the impugned act and is arbitrary in nature [4.1];
and, there is want for an a nexus between the object and amendment of the Act [4.2].

4.1. There is a lack of intelligible differentia in Amendment to the Representation of

Citizens Act, 1951 and is arbitrary in nature.

Article 14 of the constitution guarantee the right to equality to every citizen of India. It
embodies the general principles of equality before law and prohibits unreasonable
discrimination between persons. The Amendment in question carried out, by the Legislature of
Pandora, to the Representation of Citizens Act, 1951 violates this basic principle guaranteed
by Article 14 as the amendment is an unreasonable discrimination.
Equal Protection of Law aims at equality of treatment in equal circumstances. The
application of the Amendment leading to differed treatment to the elected members of
legislative assemblies across the nation violates this cardinal principle of Equal Protection of
Law, under which, while certain political parties are being permitted to sit in the house for
longer than they ought to while others are being terminated from their tenure before they are
to be. This violates Article 14 as there is a lack of Intelligible Differentia in how these parties
are being subjected to either an increase or decrease in their tenure.
The constitution is the supreme law of the land and all laws passed by the legislature must
be consistent with provisions of the constitution. The rule of law embodied in Article 14 is the

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basic feature of the Indian constitution and hence it can’t be destroyed even by an amendment
of the constitution under Article 368 of the constitution. Article 14 prohibits class legislation
but permits reasonable classification. Class legislation makes an improper discrimination by
conferring particular privileges upon a class or group.  The classification should not be
arbitrary, artificial or evasive. Rather it should be based on an intelligible differential and
substantial distinction.
In this instance, the act of the legislature in curtailing the elections to be held in numerous
state assemblies between 1 and 25 months60 while extending the tenure in another few State
Assemblies up to 6 months,61 has been done by the Parliament as per its whims and not by
taking into account any reasonable classification of these States. It is evident from the events
of the Parliament that the ruling party got the ratification of over half the states to both the
Constitution (Amendment) Bill, 2018 and Representation of Citizens (Amendment) Bill, 2018
as they were ruling in a majority number of states and union territories. It is visible at first
sight that the states which are generally ruled by the GJP (ruling party at the center), have
received a larger extension in the tenure of the Assemblies with some being extended as much
as 26 months.62 This act of the legislature, with the majority power resting in the hands of one
party, proves the presence of arbitrariness and a clear lack of intelligible differentia.
This Court explained,63 that the true import of the expression “arbitrariness” is more easily
visualized than precisely stated or defined and that whether or not an act is arbitrary would be
determined on the facts and circumstances of a given case. A law which grants discretionary
power without any guidelines ‘can easily degenerate into arbitrariness’, by making its use for
an extraneous purpose.64 “Discretion” signifies unrestrained exercise of choice or will;
freedom to act according to one’s judgment; unrestrained exercise of will; the liberty or power
of acting without control other than one’s own judgment.65
When applied to acts, “arbitrary” has been held to connote a disregard of evidence or of
the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or
legislative discretion; and to imply at least an element of bad faith, and has been compared
with “willful”.66 Art. 14 strikes at arbitrariness in State action and ensures fairness and equality

60
Schedule I (A), Sec 16A of Representation of Citizens’ (Amendment) Act, 2018.
61
Schedule I (A), Sec 16A of Representation of Citizens’ (Amendment) Act, 2018.
62
Schedule I (B), Sec 16A, Representation of Citizens (Amendment) Act, 2018.
63
Kumari Shrilekha Vidyarthi & Ors. v. State of U.P. & Ors., [1990] Supp 1 SCR. 625; AIR 1991 SC 537.
64
State of Punjab v. Khan Chand, AIR 1974 SC 543 (paras. 5.8); (1974) 1 SCC 549.
65
Union of India v. Kuldeep Singh, AIR 2004 SC 1194; (2004) 2 SCC 590.
66
East Coast Railway v. Mahadev Appa Rao; (2010) 7 SCC 678.

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of treatment as held by this Court. 67 It requires that State Action must not be arbitrary but must
be based on some rational and relevant principle which is non-discriminatory: it must not be
guided by any extraneous or irrelevant considerations, because that would be denial of
equality.68 It has also been held that when affecting public interest, it (administrative act)
should be exercised objectively, rationally, fairly and non-arbitrarily.69
Equality is antithetic to arbitrariness. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is therefore violative of
Art. 14.70 which was upheld in numerous decisions by this court.71 In Ajay Hasia Case,72 it was
held “It must…now be taken to be well settled that what Art. 14 strikes at is arbitrariness
because an action that is arbitrary, must necessarily involve negation of equality.”
Hence, due to the reason that the legislature, in the amendment carried out to
Representation of Citizens Act, 1951, being not reasoned out and unsubstantiated while
additionally being arbitrary and violative of the basic principle equality before law enshrined
under Art. 14, is violative of the same.
4.2.There is a lack of nexus in regard to the object of Representation of Citizens Act,
1951 and the Amendment Act, 2018.
The object of the Representation of Citizens Act, 1951, is “to provide for the conduct of
elections to the Houses of Parliament and to the House or Houses of the Legislature of each
State, the qualifications and disqualifications for membership of those Houses, the corrupt
practices and other offences at or in connection with such elections and the decision of doubts
and disputes arising out of or in connection with such elections.” A mere reading of the
Statement of Object provided in the Representation of Citizens Act, 1951, lays out that
primary intent of the act was to provide for manner in which the elections for the legislature
and state assemblies are to be conducted while ensuring that the qualification required for
members to be a part of the house is set forth.

67
E.P.Royappa v. State of Tamil Nadu, [1974] 2 SCR 348; Maneka Gandhi v. Union of India, [1978] 2 SCR 621.
68
India’s Constitution: Origins and Evolution; Constituent Assembly Debates; Samaraditya Pal; Volume 1, p.
645.
69
B.M.T. v. Muddappa, (1991) 4 SCC 54 (para. 46); AIR 1991 SC 1902.
70
E.P.Royappa v. State of T.N., (1974) 4 SCC 3, 38; AIR 194 SC 555; Amarjit Singh v. State of Punjab, (1975) 3
SCC 503: AIR 1975 SC 984; Paradise Printers v. Union Territory of Chandigarh, (1988) 1 SCC 440: AIR 1988
SC 354.
71
Maganlal Chhaganlal (P) Ltd v. Municipal Corpn. Of Greater Bombay, AIR 1974 SC 2009: (1974) 2 SCC
402; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; AIR 1978 SC 597.
72
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722: AIR 1981 SC 487; Shri Sitaram Sugar Co. Ltd. v. Union of
India, (1990) 3 SCC 223: AIR 1990 SC 1277; Neelima Mishra v. Harinder Kaur Paintal, (1990) 2 SCC 746:
AIR 1990 SC 1402.

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The Amendment Act, 2018 giving rise to Section 16A which provides under clause (1)
that subject to Amended Article 172(4) of the Constitution, not withstanding its
constitutionality, the provision for the Election Commission to reduce or extend the terms of
State Assemblies is prima facie arbitrary in nature. The mere fact, as stated by the GJP, 73 that
the government was incurring a huge expense for the conduction of elections one after the
other across the country does not justify the action of the legislature in executing various
Amendments to the Constitution thereby leading to the insertion of Section 16A to the
Representation of Citizens Act, 1951. Disclosure is best done by recording the reasons that led
the authority to pass the order in question. Absence of reasons either in the order passed by the
authority or in the record contemporaneously maintained is clearly suggestive of the order
being arbitrary hence legally unsustainable.74 The reason for amendment to Representation to
Citizens Act, 1951 is unsubstantiated and calls for questioning the true intent of the same.
In the instant case, it is evident that the legislature has tried to enact the necessary act for
the purpose of achieving its objective of synchronizing the elections of the legislature and
state assemblies, by carrying out amendments in an indirect manner so as to prevent prima
facie violation of fundamental rights or to prevent it from being ultra vires the Constitution.
This act is termed as Colourable Legislation. The Latin maxim “When anything is prohibited
directly, it is also prohibited indirectly” 75 supports the Doctrine of Colourable Legislation.
The fact that it is the election commission which is authorized to fix the date for elections to
be conducted, the act of the Legislature in overruling the same by amending the law amounts
to Colourable Legislation.
While explaining the doctrine, SC held that “if the constitution of a state distributes the
legislative spheres marked out by specific legislative entries or if there are limitations on the
legislative authority in the shape of fundamental rights, questions do arise as to whether the
legislature in a particular case in respect to the subject matter of the statute or in the method of
enacting it, transgressed the limits of the constitutional power or not. Such transgression may
be patent , manifest and direct, but may also be distinguished, covered and indirect and it is
the latter class of cases that the expression ‘colourable legislation’ has been applied in certain
judicial pronouncements.”76

73
Para 3 of the Moot Proposition.
74
East Coast Railway v. Mahadev Appa Rao; (2010) 7 SCC 678 – India’s Constitution: Origins and Evolution;
Constituent Assembly Debates; Samaraditya Pal; Volume 1.
75
Ballentine’s Law Dictionary, James A. Ballentine, The Bobbs-Merrill Company, 1916.
76
K.C. Gajapati Narayana Deo and Ors v. The State of Orissa, AIR 1953 SC 375: 1954 SCR 1.

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THE PRAYER

Wherefore, in the light of the facts stated, Issues raised, Arguments advanced and Authorities
cited, may this Honourable Constitutional Bench of the Supreme Court be pleased:

1. The Federal Court of Pandora has the jurisdiction to look into instant matter pertaining
to the conduction of simultaneous election for the Legislature and State Assemblies.
2. The Federal Court need not exercise judicial restraint in the matter of far reaching
government policies brought through constitutional amendments.
3. The Constitution (Amendment) Act, 2018 violates the Parliamentary system of
Government, federalism, democracy and rule of law, which are basic features of the
Constitution.
4. The Representation of Citizens (Amendment) Act, 2018 is violative of Article 14 of
the Constitution and is therefore void to that extent.
5. Issue the Writ of Mandamus thereby righting the wrong.

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.

Place: S/d_____________ S/d_____________

Date: COUNSELS FOR PETITIONERS.

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