TEAM CODE:

3rd BALGANGADHAR TILAK NATIONAL MOOT COURT COMPETITION

IN THE HON’BLE SUPREME COURT OF INDIANA

UNDER ARTICLE 32 OF CONSTITUTION OF INDIANA

IN THE MATTER OF

DR. BHOLENAATH NAIK..........................................................................PLAINTIFF

V.

HON’BLE SPEAKER OF LOK SABHA................................................RESPONDENT

MEMORANDUM ON BEHALF OF RESPONDENT

 TABLE OF CONTENT

1. Abbreviation III - IV

2. Index of Authorities
Act/Statutes V
Internet
Sources
List of Cases

3. Statement of Jurisdiction VI

4. Statement of Facts VII

5. Issues Raised VIII

6. Summary of Argument IX - X

7. Advanced Arguments 1 - 10

8. Prayer XXI

II
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 LIST OF ABBREVIATION
i

& And

¶ Paragraph

AC Appeal Case

AIR All India Reporter

Anr. Another

BOMLR Bombay law Reporter

Crl. LJ Criminal Law Journal

Cr. PC Code of Criminal Procedure

Govt. Government

HC High Court

Hon'ble Honourable

IPC Indian Penal Code

KLT Kerala Law Times

Ors. Others

P. Page

Sec. Section

SC Supreme Court

SCC Supreme Court Cases

SCW Supreme Court Weekly

III

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UP Uttar Pradesh

u/s Under section

u/ss Under sub section

V. Versus

Vol. Volume

IV

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 INDEX OF AUTHORITIES

1. Act /Statute

i) Constitution of Indiana, 1950

ii) Rule of Procedure and Conduct of Business in Lok Sabha
iii) 170th Law Commission Report 1999
iv) Constituent Assembly debate 19th May 1949 (Article 85 draft Constitution)

2. Internet Sources

i) scc online
ii) Manupatra

3. List of Cases

S. No. Case
Page no.
1. Amit Banaspati Ltd v. Union of India AIR 1995 SC 1340 at 1343 8

2. Charanjeet Lal Chaudhary v. Union of India, AIR 1951 SC41 6

3. Commissioner of Income tax v. Hindustan Bank Crises AIR 2002 SC 3491 10

ss.
4. Hardwar Lal v Election commission of India, IL (1977) 2 P& 269 1

5. Kihoto Hollohan v. Zachillhu &others(1992 supp. (2)) Supreme Court Case 4

651)
6. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council, (2004) 4
9 SCC 747
7. Mylapore Club v. State of Tamil Nadu (2005) 12 SCC 752 8

8. Prakash Singh Badal v. Union of India 1987 AIR (P&H) 263 9

9. Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270 6

10. St Jagannath Temple Managing Committee v. Siddha Mat & Ors. AIR 2016 3
SC 564

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 STATEMENT OF JURISDICTION

The Petitioner have approached the Supreme Court of India under article 32 of the Constitution of

Indiana ,1950.The respondent humbly submits to the jurisdiction of the same Hon’ble court.

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.

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 STATEMENT OF FACTS

1. Indiana is a democratic country in South Asia with a multi-party system. The ruling party, Independent
Party of Indiana (IPI), came to power with a simple majority in the Lok Sabha. However, there were some
ambitious and unhappy leaders within the party itself, and one such leader was Dr. Bholenath Naik, who
was feeling ignored and upset with the party leaders for not giving him a ministerial post.

2. On December 9, 2020, the Central Government proposed The National Highway Bill, 2017, which many
members of Lok Sabha opposed. Dr. Bholenath Naik was particularly upset as the proposed national
highway was going through some of the villages of his constituency. While discussing the new bill in Lok
Sabha, he protested against the Government policy by saying it went against the farmer’s interest. He also
said that if required, he would lead the farmers of his constituency to strongly oppose the proposed project.

3. The bill was passed with a narrow majority, but the ruling party leader suspected that some party
members had not voted in favor of the bill. Two of its members, Dr. Bholenath Naik and Mr. Dependra
Keshay, were absent for the voting, and they both gave medical reasons to justify their absence. However,
Dr. Bholenath Naik did not provide any documentary proof.

4. Later, in a television interview, Dr. Bholenath Naik criticized the Governmental policy towards farmers
and expressed his support to the people’s fight for the interest of farmers. The party leader in Lok Sabha,
Mr. Abhay Thakkar, forwarded a petition to the Speaker of Lok Sabha, Mr. M. V. Narayanan, and
requested him to take action against Dr. Bholenath Naik for his anti-party activities.

5. On the basis of the evidence produced by both parties, the Speaker held Dr. Bholenath Naik liable for
anti- party activities and disqualified his Lok Sabha Membership.

6. Dr. Bholenath Naik approached the Supreme Court and raised points that the anti-defection law is
prohibiting honest and genuine dissent, hence it is unconstitutional, and that the impartiality of the
proceedings before the Speaker is questionable as the Speaker continues membership of his original
political party, Independent Party of Indiana.

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 ISSUES RAISED

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 10 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 Constitution?

VIII
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 SUMMARY OF ARGUMENTS

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

The speaker while giving the decision disqualifying Dr. Bholenath for not following the party whip has
acted within the four corners of law and not passed the order by virtue of any mala fide or considering any
irrelevant facts or violating the principles of natural justice. Thus due to the virtue of the finality clause in
the 10 schedule the supreme court doesn't have jurisdiction to entertain the present petition. Also since the
principle of Stare Decisis is applicable due to the presence of other similar cases, the case should not be
entertained.

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

While acting as a judge and deciding the case of disqualification of the member, the speaker has acted
within his powers. He has followed the rules laid down in the 10 schedule and disqualified the member.
The office of speaker is held in very high regard and it's considered to be the speaker's role to be unbiased
in such dealings. Thus the speaker has satisfied the requirements of an independent adjudicatory
machinery.

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

The 10th schedule was introduced to curb evil political defections and give government stability. It does
not prohibit members dissent. The disqualifications take place on disobeyance of party whips, which are
issued only on matters of utmost importance or when the fate of the government hangs in balance. Thus
the 10 schedule doesn’t deserve to be declared as unconstitutional.

4. Whether section 2 (b) of the 10 schedule violates Parliamentary Privilege Provided under Article
105 of the constitution?

IX
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The intent of creating the 10 schedule in 1985 and the insertion of Article 105 in the constitution can be
seemingly similar but actually are very different and thus the two provisions run parallel to each other.
Also the two at no point cross over as one talks about defying party whips in crucial time whereas the other
gives the members of parliament privileges to speak freely in the legislature. Thus they are not violative
and should not be struck down.

X
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 ARGUMENTS ADVANCED

1. WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETTITION

A .That the speaker, while deciding the matter under the 10 schedule has not acted beyond the four
corners of law.

“ 102(2) Provides for decision making mechanism for disqualification of members under this
section 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 Chairman or, as the case may be, the Speaker of such House and his
decision shall be final”

The court has no jurisdiction to entertain the present suite and the very reason for this. Is because the
speaker while giving the decision disqualifying Mr. Bholenath has acted within the four corners of law.

In the case Hardwari Lal v . Election Commission of India (1977) 1 it was held that a house has power to
punish a person, whether it’s member or outsider, for its contempt or breach of privileges. A house can
impose the punishment of admonition, reprimand or suspension, from the service of the house for the
session, fine and imprisonment.

b) That the speaker has the finality of decision making in petitions of disqualification Para 6 of Schedule X
specifically mentions the speaker’s decision is final when any question arises as to whether a member of
parliament has become subject to disqualification. In the present case, the speaker has acted within the
powers granted to him under Part 6 of the 10 schedule.

c) That the petitioner has acted against the feature of unity and shared belief of the political party leading to
his disqualification.

1 Hardwar Lal v Election commission of India, IL (1977) 2 P&H 269

1
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The petitioner was disqualified on the grounds of abstention from voting knowing the fact that whip was
issued by petitioner’s party. In today’s democratic scenario a political party functions on strength of shared
belief and loyalty to party is the norm being based on shared belief. The divided party is looked on with
suspicion, by the electorate. To vote against the political party is disloyalty.

d) The procedure followed by the speaker was sound

Also, attention needs to be paid to the fact that in spite of giving a show cause notice to the petitioner and
another member, who remained absent on the said day of voting for which the whip was issued to justify
the reason for their absence. The other member namely, Mr. Dependra Keshav justified his absence by
producing the needed documents, but Dr Bholenath did not do the same.

The Leader of the majority party, Mr. Abhay Thakkar forwarded a petition for the removal of Dr.
Bholenath and after considering all the facts in the case, the Speaker decided to dismiss Dr Bholenath’s
membership of the house.

Thus the speaker has not acted in any of these capacities which enable the petitioner to challenge the
speaker’s decision in court .

e) That the speaker’s decision is valid and this court doesn’t have jurisdiction to entertain the petition

Considering the facts that the speaker has followed all the procedural nuances and has acted within the four
corners of law and that he has also not violated any provisions laid down in the Kihoto Hollohan case, the
petitioner cannot bring the speaker’s judgement into question and thus the court has no jurisdiction to
entertain the matter.

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f) That the STARE DECISIS” is a Latin phrase which means “to stand by decided cases: to uphold
precedents; to maintain former adjudication”. This principle is expressed in the maxim “stare decisis et non
quiets movers” which means to stand by decisions and not to disturb what is settled and as stated in Article
141 of the Indian Constitution “The law declared by the Supreme Court shall be binding on all courts
within the territory of Indiana.”2

The following matter of jurisdiction has already been settled in the case of Kihoto Holohan, so in the
instant case revisiting the matter may be a waste of the precious time of the honourable Supreme Court and
it is contended by the respondent that the present matter should not be entertained.

2
.WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER THE 19TH
SCHEDULE SATISFIES THE REQUIREMENT OF INDEPENDENT ADJUDICATORY
MACHINERY?

A .That the speaker while deciding the matter does satisfy the condition of an independent adjudicatory
machinery.

The speaker by virtue of the 10 schedule, is enabled to decide the matter of disqualification of members
under the provisions of article 102 (2)

Disqualifications for membership-

A person shall be disqualified for being a member of either House of Parliament if he is so disqualified
under the Tenth Schedule. The speaker while deciding the current matter under the 10 schedule, has acted
in accordance with the rules of schedule 10.

2
St Jagannath Temple Managing Committee v. Siddha Mat & Ors. AIR 2016 SC 564

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Under para 6, the final authority to take a decision on the question of disqualification of a member of the
house rests with the speaker or chairman of the house. Their role is only in the domain of ascertaining the
relevant facts. Once the facts gathered or placed show that a member of the house has done any such act
which comes within the purview of para 2(1)(2) or (3) of the schedule, the disqualification will apply and
the chairman or the speaker of the house will have to make a decision to that effect.3

Furthermore, the speaker is held in very high esteem and respect due to inherent and historical reasons in
the concept of parliamentary democracy. Once a person is elected as a speaker, the expectation is that he is
above the nuances of parties and politics. While deciding the matter of such a disqualification at hand he
holds the scale of justice evenly irrespective of the two parties in front of him. Everybody knows that in
spite of his drawbacks and shortcomings he will intentionally do no justice or show partiality. Such a
person is naturally held in respect by all.”4

In addition to this , within the walls of the house the speaker’s authority is supreme, and such supremacy is
based on the speaker’s unwavering and absolute impartiality-the main feature of his office. The law of its
life. This obligation of impartiality is reflected in the provisions which ordains that the speaker is entitled
to vote only in the case of equality of votes. 5

Kihoto Hollohan v. Zachillhu &others 6

,”It would indeed, be unfair to the high traditions of that great
office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of
democracy. It is inappropriate to express distrust in the high office of the speaker merely because some of
the speakers are alleged or even found, to have discharged their functions not in keeping with the great
traditions of the high office the robes of the speakers do change and elevate the man inside.”

It Is held in the case of Kihoto Hollohan vs Zachillhu and ors, that “The contention that the vesting of
adjudicatory functions in the speakers/chairmen would by itself vitiate the provision on the ground of
likelihood of political bias is unsound and is rejected.

3
Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council, (2004) 9 SCC 747

4
GV Malankar, “The office of speaker”, Jumal of parliamentary information, April 1956, Vul:2,No.1, P 33.

5
MN Kaulandshahar in "Practice and procedure of parliament 4 edition P104

6
Kihoto Hollohan v. Zachillhu &others(1992 supp. (2)) Supreme Court Case 651)

4 Page 14 of
The speakers/chairmen hold a pivotal position in the scheme of parliamentary democracy and are guardians
of rights and privileges of the house. They are expected to and do take far-reaching decisions in the
functioning of parliamentary democracy. Vestiture of power to adjudicate questions under the tenth
schedule in such constitutional functionaries should not be considered exceptionable.

B. That the speaker while giving decision under the 10 schedule has acted within the scope of his power
granted to him by the virtue of his office.

By the virtue of the 10 schedule, the speaker has been granted the power to decide the matters of
disqualification of members on the basis of defection

In the current case, a whip was issued by the majority party leader Mr. Abhay Thakkar.

The whip pertained to compulsory attendance and ipso facto for voting in favors of the national highway
bill 2017. Dr. Bholenath, abstained from voting by choosing to remain absent and not giving any valid
medical justification. In view of this Mr. Abhay Thakkar forwarded a petition for Dr. Bholenath
disqualification from the Loksabha.

The respondent considered the above petition and took into account all the above mentioned facts, and
gave his complete unbiased judgement.

He cancelled the lok sabha memberships of Dr. Bholenath and gave suitable justification for the same.

He has completely acted within the ambit of his authority and jurisdiction and has given a suitable
judgement.

Inferring from the above two arguments, the speaker has acted in the scope of the powers granted to him by
the constitution and has given his judgement in accordance with that.

The respondent, as stated above, holds an office of high importance and one which is traditionally known
to be unbiased and impartial

Thus it can be reasonably construed that he has indeed satisfied the conditions required to be an independent
adjudicatory machinery and has also acted within the scope given by it.

5
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3. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING HONEST AND
GENUINE DISSENT DESERVES TO BE HELD UNCONSTITUTIONAL?

It was held in Charanjeet Lal Chaudhary v. Union of India 7

“The presumption is in favor of the
constitutionality of the statute and the onus to prove that it is unconstitutional is on the person who is
challenging it. “

The statement of object and reasons appended to the hill which was adopted as the Constitution (52
amendment) Act 1985 says “the evil of political defection has been a matter of national concern. If it is not
combated it is likely to undermine the very foundation of democracy and the principle which sustain it.
With this object an assurance was given in the address by the President to Parliament that the government
intended to introduce in the current session of Parliament an Anti-defection bill. This hill is meant for
outlawing defection and fulfilling the above assurance. “8

Rajendra Singh Rana v. Swami Prasad Maurya (2007) 9 the object is to curb the evil of political defection
motivated by lure of office or other similar consideration which endanger the foundation of our democracy.
Grounds of disqualifications are specified in paragraph 2 of 10 schedule. In terms of para 2 of the tenth
schedule the act of disqualification occurs on a member voluntarily giving up his membership of a political
party or at the point of defiance of the whip issued to him” .

Supporting the constitutionality 10 schedule creates a non-justiciable constitutional area dealing with
certain complex political issues which have no strict adjudicatory deposition. By introduction of this
schedule new rights and obligations are created for the first time uno-flatu by constitution and constitution
itself has envisaged a distinct constitutional machinery for resolution of those disputes. These rights,
obligations and remedies, it is urged, which is in their very nature and innate complexities are in political
thickets and are not amenable to judicial .

7
Charanjeet Lal Chaudhary v. Union of India, AIR 1951 SC41

8
Legislature intent of 10th schedule as stated in the 52nd Amendment

9
Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270

6
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It has been held in the case Kihoto Hollohan that paragraph of 10 schedule of the constitution are valid and
its provisions do not suffer from the vice of subverting democratic rights of elected members of parliament
also it does not violate their freedom of speech, freedom of vote and conscience.

Also the contention that the provision of 10 schedule even with exclusion of pura 7 violates the basic
structure of the constitution and that it affects the democratic rights of elected members. Therefore the
principle of parliamentary democracy is unsound, is rejected

Also the contention that powers conferred on the speaker chairman is vitiated by mala fide or is colorable
exercise of power based on extraneous and irrelevant considerations. In the present case, speakers decision
is neither vitiated by any of the above mentioned factors. The speakers act was in accordance of law and
acted within its scope of authority. By due process of law the petitioner was given an ample of opportunity
to produce documentary proof, failing which he suffered disqualification.

Keeping in view the consequences of disqualifications ie the termination of membership of the house it
would be inappropriate that direction or whip which results in such disqualifications under para 2(1)(b) so
worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would
result in incurring disqualification under 2(1)(b) of the 10 schedule su that the member concerned has fair
knowledge of the consequence flowing from his conduct in voting or abstaining from voting contrary to
such a decision.

Taking into consideration the intent of disqualification of 10 schedule and vesting of authority on the
speaker to decide the disputes and clear language of 2(1)(b) and its consequences. The 10 schedule is
functioning as expected by drafters. Thus 10 schedule must be held constitutional

Also the majority view in Kihoto Hollohan is that in absence of ratification by state legislature, it is para 7
alone of 10 schedule which is unconstitutional and it is severable from remaining part of 10 schedule, Para
7 alone is liable to be struck down by rendering the speakers' decision under para 6 that a judicial tribunal
amenable to judicial review by the Supreme Court and High Court under Art. 126, 226, 227.

7
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Also, a statute cannot be struck down merely because the court thinks it to be arbitrary or unreasonable.
Any such ground of invalidity must be related to a constitutional provision such as Articles 14, 19 or 21.
Challenge on ground of wisdom of legislation is not permissible as it is for the legislature to balance
various interests.10

Keeping in view, all the aforementioned comments of the respondents, the 10 schedule of the constitution
prohibiting honest and genuine dissent does not deserve to be declared unconstitutional.

4. WHETHER SECTION 2 (B) OF 10TH SCHEDULE VIOLATES PARLIAMENTARY

PRIVILEGES PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?

As mentioned in the case Amit Banaspati Ltd. V. Union of India (1995) 11, the allegations regarding the
violation of a constitution provision should be specific, clear and unambiguous and it is for the person who
impeaches the law as violative of the constitutional guarantee to show that the particular provision is infirm
for the reason stated by him.

Article 105 of the Indian constitution provides for the parliamentary privileges to the members of the Lok
sabha and the Rajya Sabaha.

“105 conferring parliamentary privileges under this part:

(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the
procedure of Parliament, there shall be freedom of speech in Parliament

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said
or any vote given by him in Parliament or any committee thereof, and no person shall be so liable
in respect of the publication by or under the authority of either House of Parliament of any report,
paper, votes or proceedings

Section 2(b) of schedule 10 of the constitution provides for the disqualification of the members of the
houses of the parliament for voting or abstaining from voting against the party guidelines.

10
Mylapore Club v. State of Tamil Nadu (2005) 12 SCC 752

11
Amit Banaspati Ltd v. Union of India AIR 1995 SC 1340 at 1343

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The paragraph 2 of the 10 schedule to the constitution is valid. Its provisions do not niffer from the vice of
subverting democratic rights of elected members of the parliament and legislators of the state. It does not
violate their freedom of speech, freedom of vote and conscience. The provisions of paragraph 2 do not
violate any right or freedoms under article 105 of the constitution. The reasoning for the honourable
Supreme Court pronouncing such a decision can be seen through the various facets of the legislation and
the constitution itself.12

The anti-defection law had the main objective of outlawing the political evil of defection which had
become a matter of national concern when it was introduced. The drafters of the hill contended that if this
political evil was not combated it was likely to undermine the very foundations of our democracy and the
principles which sustain it.”13

It is an observation that the political parties issue whips only when the government is in danger. 14 This
substantiates the above stated legislative intent which sought to introduce this bill to curb the evil of
political defections

This legislation does not seek to curb the freedom of speech of the members of the parliament but only
seeks to give the government a reasonable stability to carry out the functions it has promised to the
electorate.

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 parliament and the same can be regulated or curtailed by making any
constitutional provision, such as the 52 amendment. The provisions of para 2(b) cannot, therefore be
termed as violative of the provisions of Article 105 of the constitution.15

As already mentioned here above, the intent and objective of the 52 amendment was to curb the evil of
political defections, outlawing the same and providing a stable and healthy government which is an
essential part of democracy

12
Kihoto Hollohan v. Zachillhu &other Pg. 687 para 53

13
Statement of objects and reasons of THE CONSTITUTION (FIFTY SECOND AMENDMENT) ACT, 1995

14
170th Law Commission Report 1999

15
Prakash Singh Badal v. Union of India 1987 AIR (P&H) 263
9 Page 19 of
Antithetically, the intent of the drafters of the constitution while embedding article 105 in the constitution
was mainly to protect the members from innumerable cases of defamation and sedition by virtue of words
said by them in the parliament with a view of fairly representing their constituents.16

Thus, it can be construed that the two provisions of the constitution run parallel to each other, while not
crossing over Violating at any point.

The court must follow the rules of harmonious construction which is the thumb rule to interpretation of any
statute. An interpretation which makes the enactment a consistent whole, should be the aim of the court
and a construction which avoids inconsistency between the various sections should be adopted.

The provisions of one section cannot be used to defeat the provision contained in another unless the court
despite all its efforts is unable to find a way to reconcile their differences. When it is impossible to
completely reconcile the differences in seemingly contradictory provisions the court must interpret them in
such a way so that effect is given to both the provisions as much as possible.

Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead in
not harmonious construction. 17

16
Constituent Assembly debate, 19th May 1943

17
Commissioner of Income tax v. Hindustan Bank Crises AIR 2002 SC 3491 ss.

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 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 10 schedule to be constitutional.

d) Hold that section 2 (b) of the 10 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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