Moot Court Society

School of Law, CHRIST (Deemed to be University)

Internal National Ranking Rounds 2023-24

1. The Republic of Bharatavarsha is a Sovereign, Democratic and Secular country with diverse and

multicultural polity based on regional and linguistic differences. It was under Angriji rule for

almost two centuries and adapted to the system of parliamentary governance even before its

independence. It attained independence and adopted a system of constitutional governance with

parliamentary democracy. The Parliament is bicameral, where the upper house is designated as

the ‘Council of States’ or Rajya Sabha and the lower house as the ‘House of the People’ or Lok

Sabha. These two houses along with the President constitute the Parliament. The democratic

principles which are reflected in various constitutional provisions forms the basis of

Constitutionalism of Bharatavarsha and the Bharatavarsha is considered as a ‘temple of

democracy’ since it is the largest democracy in the world. The Supreme Court of Bharatavarsha

is the highest appellate Court as well as Constitutional Court which protects the cherished

democratic ideals by exercising judicial review over the Legislative Acts and actions of the

Government.

2. The Republic of Bharatavarsha is federal in character, with legislatures at the Union and State.

Unlike U.S., the federation is not coming together rather holding or pulling together which

makes the federation unique and biased towards Centre to sustain the unity of the country. The

geographical identity of a State is at the mercy of the Centre and consequently, the political

landscape of the States and Union Territories changes with times. At present, the Bharatavarsha

consists of 28 States, 8 Union Territories including National Capital Territory (NCT). However,

one Union Territory named Vedapuri and the National Capital Territory named Indraprastha

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 have legislative assemblies although they are under the control of the Union Government.

Moreover, only the Union Government can propose constitutional amendment and it can be

passed with special majority by the Parliament itself and ratification of States is required only to

amend certain provisions of the Constitution.

3. The two major national parties in Bharatavarsha are ‘Bharatavarsha National Party (BNP)’ and

‘All Bharatavarsha Congress Party (ABCP)’. The incumbent Union Government is formed by

BNP, who has been ruling for almost a decade in Bharatavarsha by winning two General

Elections with absolute majority. Furthermore, they formed Government in 13 State Legislative

Assemblies and two legislative assemblies of the Union Territory, including NCT. The ABCP

is ruling in 13 States and the remaining two States are being ruled by the Regional Parties. Of

late, the Union Government inaugurated a new Parliament building with both fanfare and

controversy, as they did not invite the President of Bharatavarsha for inaugurating the new

building although the President of Bharatavarsha is one of the constituting elements of the

Parliament besides the formal head of the executive. The major opposition party, i.e., ABCP

criticized the ruling BNP as the Prime Minister has been acting in an autocratic way and all

democratic institutions are under attack and moreover, they subordinated all independent

institutions, including the Election Commission and the Judiciary. The office of the Governor

is used as a political tool to embarrass the non-BNP governments at State level.

4. The State of Bharatavarsha, though acting as a mother of all modern democracies are reeling

under certain issues and challenges. In a representative democracy, the party politics and

defection are inevitable but the vice of defection causes government instability. Defection,

though it is acceptable has been considered undemocratic as it negates electoral verdict. In

1985, the Parliament headed by ABCP realized the evils of political defections and brought the
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 Constitution (Fifty-second) Amendment Act, 1985 and amended Articles 101(3(a), 102(2),

190(3)(a) and 191(2) and inserted X Schedule in the Constitution of Bharatavarsha.

5. The anti-defection law contains three important features, such as, (a) It prescribes the grounds

upon which a member of the Parliament or State Legislative Assembly belonging to a political

party shall be disqualified as a member under para (2) of the X Schedule: (1) voluntarily giving

up of membership under whose symbol that the member has been elected; (2) Acting contrary

to the direction of the party whip either to vote or abstain from voting in a particular way; (b)

It permits the legislators to defect as a separate group without facing disqualifications. However,

it was criticized vehemently for permitting defections based on a group while disallowing the

individual defections and considering them as illegal. The bulk defections were removed

through the amendment in 2003, wherein it discourages the decision taken by the 1/3rd of the

legislative members of the party to split from the parent party, thus making the anti-defection

provisions very strict. The present exemption is only for the merging of the party with the

consent of 2/3rd majority of the legislative members of the original political party as laid down

under para 4 to escape the disqualification and not splitting up the party.

6. The most contentious and controversial provision is, (c) it mandates the chairperson of the

house to decide on defection and disqualification of a defected member. The role of chairperson

of the house in deciding the disqualification of members on the ground of anti-defection law is

a perennial problem for the constitutional courts to adjudicate as the chairperson shows his

loyalty and affinity to the party he is attached with and eventually, the decision tends to be unfair,

partial and influenced. It is evident from the practices of chairperson that his decisions are either

in ‘hot haste’ without following the principles of natural justice or at a ‘snail’s pace’ in order to

please the ruling helm.

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7. The Bharatavarsha Parliamentary system has been modelled in the lines of State of Angriji. The

Parliamentary procedures and privileges are akin to the Angriji system. However, the position

and election of a speaker is different as the Speaker in Bharatavarsha system is not independent.

He is not required to give up membership of their political party and there is no express mention

in the Constitution regarding the impartial functioning of the Chairperson.

8. The anti-defection law although ambitious, failed in its objective as defections continue

unabated and the chairperson both at the Centre and the States are acting in a blatantly partisan

manner in order to advance the interests of the ruling party at the cost of the parliamentary

democracy. Thus, the incumbent BNP Government passed a constitutional amendment and

replied to the criticisms of the opposition by giving due regard to the office of the President in

the Parliament and to strengthen the anti-defection law. The Constitution (One-hundred and

sixth) Amendment Act, 2023 is as follows:

Amendment to the X Schedule

Insertion of new para 6 and 7 replacing the existing provisions.

6. Decision on questions as to disqualification on ground of defection. - (1) If any

question arises as to whether a member of a House has become subject to disqualification under
this Schedule, the question shall be referred for the decision of the President for the Parliament
and the Governor for the State Legislature and their decision shall be final.
(2) Before giving any decision on any such question, the President and Governor shall obtain the
opinion of the Election Commission of Bharatavarsha and shall act according to such opinion.
(3) The decision of the President and the Governor is equal to the Order or Decree of the Supreme
Court of Bharatavarsha.

7. Bar of jurisdiction of Courts. - (1) Notwithstanding anything in this Constitution, no

Court shall have any jurisdiction in respect of any matter connected with the disqualification of a
member of a House under this Schedule.

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 (2) Nothing in clause (1) shall apply if the Constitution Bench of the Supreme Court of
Bharatavarsha consisting of not less than five judges unanimously decide to hear any matter
connected with the disqualification of a member of a House under this Schedule on the ground of
substantive illegality and manifest arbitrariness.

9. The Constitution (One-hundred and sixth) Amendment Bill, 2023 has been passed in the two

houses of the Parliament and ratified by 13 State Legislative Assemblies and 2 Legislative

Assemblies of Union Territories governed by BNP Government, whereas 13 State Legislative

Assemblies governed by ABCP Government passed resolutions against the amendment.

However, the two States ruled by the regional parties remained neutral without expressing any

views on the amendment. Finally, with the majority of 15 Legislative Assemblies, the Bill has

been assented by the President of Bharatavarsha, and enforced on July 15, 2023.

10. The major opposition parties, significantly ABCP criticized this amendment and challenged it

before the Supreme Court of Bharatavarsha. The Supreme Court of Bharatavarsha framed the

following questions and posted it for final arguments on August 26, 2023.

1. Whether the Constitution (One-hundred and sixth) Amendment Act, 2023 is in violation of

Doctrine of Basic Structure.

(a) Whether the President and Governor can be a deciding authority in the matters relating

to disqualification of members of the Parliament and State Assemblies.

(b) Whether the new para 7 in the X Schedule is affecting the Doctrine of Judicial Review.

2. Whether the U.T. with legislative assembly can be considered as ‘State’ for the purpose of Article

368(2) and procedure adopted to pass the Constitution (One-hundred and sixth) Amendment

Act, 2023 is valid.

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NOTE:

The laws and judicial decisions of Bharatavarsha are in pari materia with the laws and

judicial decisions of the Republic of India except where otherwise mentioned.