MEMORIAL for RESPONDANT

P-154140046

Dr. SHAKUNTALA MISRA NATIONAL

REHABILITATION UNIVERSITY
Moot Court, 2019
IN THE HON’BLE HIGH COURT OF STATE

IN THE MATTER OF ARTICLE 226 , 19[2][A] AND PARA 2{A} AND PARA 7
OF 10TH SCHEDULE OF CONSTITITION OF INDIA

7 MEMBERS OF RULING PARTY, 1 DETACHED MEMBER, 3 INDEPENDENT

MEMBERS...............................................................................................PETITIONER
(COUNSE OF PETITIONERS)
VERSUS.

SPEAKER OF THE LEGISLATIVE ASSEMBLY OF

STATE...................................................................................................RESPONDENT
(COUNSEL OF RESPONDENT)

BEFORE SUBMISSION TO THE HON’BLE HIGH COURT OF STATE

MEMORIAL FILED ON BEHALF OF THE RESPONDANT

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TABLE OF CONTENTS

1. INDEX OF ABBREVIATIONS…………………………………………………………….4

2. INDEX OF AUTHORITIES………………………………………….……...5-6

3. STATEMENT OF JURISDICTION……………………………….…….……..7-8

4. SYNOPSIS OF FACTS…….…………………………………..……….……….9

5. ISSUES RAISED……………………………………………………….……….10

6. SUMMARY OFARGUMENTS………………………………………….…..11-12

7. ARGUMENTS ADVANCED……………………………..............................13-17

8. PRAYER…………………………………………………………………….18

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ISSUE I:

1. WHETEHR THE WRIT PETITION IS MAINATAINABLE UNDER

ARTICLE 226?

ISSUE: II:

2. WHETHER THE SPEAKER ORDER IS IN VIOLATION OF

ARTICLE19(1)(a)?

ISSUE: III:

3. WHETHER THE DISQUALIFICATION ORDER OF THE SPEAKER

IS IN ACCORDANCE WITH THE TENTH SCHEDULE OF THE
CONSTITUTION OF INDIA?

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INDEX OF ABBREVIATIONS

• Art., arts. ....................................................................................Article, articles.

• Cl., cls. ......................................................................................Clause, clauses.

• C.O. .....................................................................................Constitution Order.

• Ins. ........................................................................................................Inserted.

• Ors. ……………………………………………………………………...Orders

• P., pp ......................................................................................................... pages.

• Pt. ................................................................................................................Part.

• Rep. .....................................................................................................Repealed.

• u/s……………………………………………….…………….….under section

• v…………………….………………………..……….………………….versus

• sch. …………………………..………………………..........................schedule

• Sec., ss. ....................................................................................Section, sections.

• SC. ……………………………………………………...……...Supreme Court.

• H.C ……………………………………………………………….…HighCourt

• SCC ……………………………………….………..……Supreme Court Cases

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INDEX OF AUTHORITIES

Table of Cases:

a) Abdul Rahim Ismail C. Rahimtoola v. State of Bombay, AIR 1959 SC 1315

b) BalachandraL.Jarikholi and others v. B.S.Yeddyurappa and others, (2011) 7
SCC 1
c) B.R Kapur v. State of T.N 2001 7 SCC 231
d) Haryana Vidhan Sabha v. Kuldeep Bishonoi and others, (2015) 12 SCC 381
e) Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270
f) Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
g) Jagjit Singh v. State of Haryana 2006 11 SCC 1
h) KihotoHollohan v. Zachillhu, 1992 Suppl (2) SCC 651
i) Mayawati v. Markandeya Chand and others, reported in (1998) 7 SCC 517
j) Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council, (2004) 8
SCC 747
k) Maneka Gandhi v. Union of India,(1978) 1 SCC 248
l) Moti Ram v. Param Dev, (1993) 2 SCC 725
m) Ravi S. Naik v. Union of India 1994 Supp 2 SCC 641
n) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184
o) R.S. Dass v. Union of India, (1986) Supp SCC 617
p) State of Assam v. BanshidharShewbhagavan& Co., (1981) 3 SCC 283
q) Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad 2005 11 SCC 314

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TABLE OF BOOKS

a. Constitution of India By V.N. Shukla {Tenth Edition}2001

b. Commentary on the Constitution of India by Durga Das Basu{Eight
Edition} 2009
c. Constitution Law of India by H.M. Seervai {Fourth Edition} Volume 2
and 3, 2015
d. Constitutional Law of India Dr. J.N. Pandey{FifthEdition}2016
e. Indian Constitutional Law by LexisNexis{Seventh Edition}2015

b) Table of Statutes:

a. The Constitution of India 1950.

b. The Representation of People Act, 1951

c) Websites:

a. www.lawyersclubindia.com
b. www.indiankanoon.com
c. www.SCConline.com
d. www.lawyersclubindia.com

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STATEMENT OF JURISDICTION

THE RESPONDENTS HAVE APPROACHED THIS HON’BLE HIGH

COURTOF STATE IN REPONSE TO THE PETITION PREFERRED
UNDER ARTICLE 226 (POWER OF HIGH COURTS TO ISSUE CERTAIN
WRITS) OF THE CONSTITUTION OF INDIA THE PRESENT
MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND
ARGUMENTS IN THE PRESENT CASE.

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226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of action,
wholly or in part, arises for the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such person is not within those
territories
(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause ( 1 ), without
(a)furnishing to such party copies of such petition and all documents in support
of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the
High Court for the vacation of such order and furnishes a copy of such
application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of
two weeks from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that period, or, as the case
may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of
the power conferred on the Supreme court by clause (2) of Article 3

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SYNOPSIS 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 the (declared to be so by the Speaker
for being expelled from the party) and 3 independent members. In order to pull down
the government of Mr. Kumar 7 member of ruling party, one detached member and
three independent together expressed lack of confidence in him and approached the
Governor with a joint memorandum against Chief Minister withdrawing support to
him. Thereafter the speaker quickly invoked the anti-defection law and after giving
the right of hearing for clarifying their position them from membership of the
Assembly on the ground that their action of withdrawing support amount to defection
under para 2(a) of the Tenth 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. The conduct was incompatible with the continuance of their
membership of the House as it was breach of loyalty and political morality. The order
of the speaker reduced the strength of the Assembly from 100 to 89. 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 49
members of his party.

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ISSUE RAISED

ISSUE I:

1. WHETEHR THE WRIT PETITION IS MAINATAINABLE

UNDER ARTICLE 226?

ISSUE:II:

2. WHETHER THE SPEAKER ORDER IS IN VIOLATION OF

ARTICLE 19(1)(a)?

ISSUE: III:

3. WHETHER THE DISQUALIFICATION ORDER OF THE

SPEAKER IS IN ACCORDANCE WITH THE TENTH
SCHEDULE OF THE CONSTITUTION OF INDIA?

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SUMMARY OF ARGUMENTS

ISSUE I:

1. WHETEHR THE WRIT PETITION IS MAINATAINABLE UNDER

ARTICLE 226?

It is humbly submitted that the power of judicial review of the speaker decision is
expressly barred by The Constitution of India under Para 6(1) and 7 of the Tenth
Schedule.1 The proceeding under Tenth Schedule by the speaker of the state
legislature is within the meaning of Legislative proceeding under Article 212 of The
Constitution of India.

ISSUE: II:

2. WHETHER THE SPEAKER ORDER IS IN VIOLATION OF ARTICLE

19(1)(a)?

It is humbly submitted that the he freedom of speech and expression guaranteed under
Article 19(1) (a) is not absolute, it does not give a citizen right to say anything he
chooses, at any time, at any place, regardless of circumstances. Apart from the
reasonable restrictions that the State may impose under Art 19 (1), (2), the right is
subject to inherent restraints based upon the certain principle of a civil society. Article
19(1) does not confer any special right or privilege to a legislator as distinguished
from the members of the publicThe freedom of the legislator is the freedom of any
other citizen and to whatever lengths the other citizens in general may go, so also may
the legislator, but apart from anything else, his right is no other and no higher.

1
Para 6&7 of Tenth Schedule, The Constitution of India

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ISSUE: III:

3. WHETHER THE DISQUALIFICATION ORDER OF THE SPEAKER

IS IN ACCORDANCE WITH THE TENTH SCHEDULE OF THE
CONSTITUTION OF INDIA?
It is humbly submitted that while applying the principles of natural justice, it
must be borne in mind that “they are not immutable but flexible” and they are
not cast in a rigid mould and they cannot be put in a legal straitjacket. 2 Whether
the requirements of natural justice have been complied with or not has to be
considered in the context of the facts and circumstances of a particular case.

2
Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council,
(2004) 8 SCC

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ARGUMENTS ADVANCES

ISSUE I:

1. WHETEHR THE WRIT PETITION IS MAINATAINABLE UNDER

ARTICLE 226?

It is humbly submitted that the power vested in the Speaker is a judicial exercise of
power. The Court’s discretion in this arena is quite limited. Moreover, the Speaker,
being the master of the House, can impose any restriction pursuant to the act of
disqualification.3 It ought to be noted that the acts of disqualification took place within
the House and therefore it is well within the inherent powers of the Speaker to impose
any sanction consequent to the act of defection. Without such power of sanction, the
position of the Speaker is equivalent to that of a toothless tiger. The specific ground
and reasons are hereinafter given.

THAT THE JURISDICTION OF THE COURT IS BARED UNDER PARA 6(1)

AND 7 OF TENTH SCHEDULE OF THE CONSTITUTION

 It is humbly submitted that the power of judicial review of the speaker

decision is expressly barred by The Constitution of India under Para 6(1) and
7 of the Tenth Schedule.4 The proceeding under Tenth Schedule by the
speaker of the state legislature is within the meaning of Legislative
proceeding under Article 212 of The Constitution of India.5
 It is humbly submitted that although the Petitioners have repeatedly
contended that the rules of natural justice have been violated, it ought to be
noted that rules of natural justice cannot be put in a straitjacket. Although,
these principles are immutable, yet they are flexible, and are not confined to
technical limits. The Petitioners herein have to show some real injury or
patent perversity in the order of the Speaker. Therefore the disqualification
order could not be reviewed by this Court

3
Ibid
4
Para 6&7 of Tenth Schedule, The Constitution of India
5
Orissa Legislative Assembly v. UtkalKeshariParida, (2013) 11 SCC
794

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THAT THE SPEAKER DECISION DID NOT VIOLATE THE

CONSTITUTIONAL MANDATE AND IMMUNE UNDER ARTICLE 212 OF
THE CONSTITUTION

 It is humbly submitted in KihotoHollohan v. Zchillhu6 it was held by the

Supreme Court that the extent of judicial review that is permissible under the
Tenth Schedule is very limited.
 It is humbly submitted that any proceeding which is “procedural in nature”,
any violation of the same would amount to irregularity in procedure which
was immune from judicial scrutiny even if it is done by a quasi-judicial
authority.
 It is humbly submitted that Principles of natural justice cannot be reduced
into a straitjacket formula. The yardstick of judging the compliance of natural
justice, depends on the facts and circumstances of each case. In the case of
R.S. Dass v. Union of India,7 , this Court made following observations “It is
well established that rules of natural justice are not rigid rules, they are
flexible and their application depends upon the setting and the background of
statutory provision, nature of the right which may be affected and the
consequences which may entail, its application depends upon the facts and
circumstances of each case”. In this case speaker did grant sufficient time to
the members for presentation of their case.
2. ISSUE II: WHETHER THE SPEAKER ORDER IS IN
VIOLATION OF ARTICLE 19(1)(a)?

It is humbly submitted that the order of speaker is malafide, violates the constitution
mandate and principle of natural justiceRight to dissent is included in freedom of
speech and expression protected under Article 19(1)(a) of the Constitution of India
and petitioner act is immune under 194(1) and 194(2) 8. The ground for protection is
hereinafter given:

THAT THE ACT OF THE PETITIONERS IS NOTCOVERED UNDER

ARTICLE 19(1)(a)OF THE CONSTITUTION OF INDIA AND SUBJECT TO
REASONABLE RESTRICTION
6
KihotoHollohan v. Zachillhu, 1992 Suppl (2) SCC 651
7
R.S. Dass v. Union of India, (1986) Supp SCC 617
8
Article 194, The Constitution Of India

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 It is humbly submitted that under Article 19(1) (a) a legislator has no fundamental
right of speech in the Legislature and therefore, the restriction on the legislator’s
right of speech in the Legislature cannot be treated as a restriction on the
fundamental right guaranteed to him under Article 19(1)(a).
 It is humbly submitted that he law is settled by the Hon’ble Apex Court in
KihotaHollohon Vs Zachilhu9 and Others that, the provisions of Tenth Schedule
do not suffer from the vice or subverting democratic rights of elected Legislators,
it does not violate their freedom of speech, freedom of vote and conscience

THAT THE DESERTING LEADER OF THE PARTY IS NOT SYNONYM TO

THE DESERTING POLITICAL PARTY ITSELF

 It is humbly submitted that it is necessarily follows that as long as a Member

professes to belong to a political party, he must abide by and be bound by the
decision of the majority within the party. 10 He is free to express dissent within
the party platform, but disparate stands in public or public display of revolt
against the party, undeniably undermines the very foundation of the party.
The very object of the Tenth Schedule was to bring about political stability
and prevent members from conspiring with the opposite party.
 In KihotoHollohon Vs. Zachillhu11 the Hon’ble Supreme Court of India held
that the expression “any direction” should be given wider meaning, it is held
that the words any direction occurring in paragraph 2 (1)(b) would require to
be construed harmoniously with the other provisions, so as not to be given
wider meaning opposed to the objects and purposes of the Tenth Schedule.

3. ISSUE III: WHETHER THE ORDER OF THE SPEAKER CAN BE

SAID TO BE VITIATED ON ACCOUNT OF VIOLATION OF
CONSTITUTIONAL MANDATE, MALAFIDE AND NON-
COMPLIANCE WITH THE PRINCIPLE OF NATURAL JUSTICE?

9
Supra 4
10
Ibid
11
Supra 4

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It is humbly submitted that the Speaker did give a hearing before disqualifying the
petitioner and he also comply with the principle of natural justice therefore the order
of the Speaker cannot be vitiated on the ground of violation of principle of natural
justice and the Speaker did have the jurisdiction to deal with disqualification petitions

THAT THE ODER OF THE SPEAKER DOES NOT VIOLATES THE

PRINCIPLE OF NATURAL JUSTICE AND THE ORDER OF THE
SPEAKER VIOLATES THE CONSTITUTIONAL MANDATE

 It is humbly submitted that while applying the principles of natural justice, it

must be borne in mind that “they are not immutable but flexible” and they are
not cast in a rigid mold and they cannot be put in a legal straitjacket. 12
Whether the requirements of natural justice have been complied with or not
has to be considered in the context of the facts and circumstances of a
particular case.
 It is humbly submitted that in Mayawati v. Markandeya Chand,13 a three-
Judge Bench of this Court expressed different views on the same. The
impugned orders of the Speaker can be sustained from the challenge made on
the ground of perversity as the Respondents have been able to show that there
was sufficient material available before the Speaker to pass the impugned
orders. Further, on a consideration of the totality of the facts brought on
record before us, it cannot be held that the findings of the Speaker are so
unreasonable or unconscionable that no tribunal could have arrived at the
same findings.

THE ORDER OF SPEAKER IS NOT MALAFIDE AND IN COMPLIANCE

WITH RULES OF PERVERSITY

12
Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council,
(2004) 8 SCC
13
Mayawati v. Markandeya Chand and others, reported in (1998) 7 SCC
517

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 It is humbly submitted that while there is no gainsaying that the ground of

violation of constitutional mandate is available to an individual when the
Speaker substantially comply the procedural requirement of the
disqualification. Therefore the order of the speaker cannot be set aside.
 It is humbly submitted that in E. P. Royappa v. State of Tamil Nadu, 14 Raja
Ram Pal case, Sub Committee on Judicial Accountability v. Union of India, it
was held that the onus of proof regarding violation of the constitutional
mandate the same is on the one who challenges the said action and has a very
heavy burden to discharge. In the present case, although the Petitioners
claimed that the Speaker acted in violation of constitutional mandate, they
have neither made any specific allegation, nor can it be said that they have
discharged the heavy burden that is required to prove that the ground of
violation of constitutional mandate is made out.

PRAYER

14
Supra 4

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IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES

CITED, THE RESPONDENT HUMBLY PLEADS BEFORE THE HON’BLE

COURT TO:

1. TO UPHELD THE DECISION OF THE SPEAKER OF THE

LEGISLATIVE ASSEMBLY.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY,

JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE RESPONDENT FACTION SHALL BE

DUTY BOUND FOREVER.

(COUNSEL FOR THE RESPONDENT)

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