MEMORIALS ON BEHALF OF THE APPELLANT

T1

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

IN THE MATTER
OF:

DR. BHOLENATH NAIK …APPELLANT

V.

HON’BLE SPEAKER LOK SABHA …DEFENDANT

ON SUBMISSIONS TO THE HON’BLE OF

UNDER 32 OF THE CONSTITUTION OF REPUBLIC OF HINDOS

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

COUNSEL ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ………………………………….………………………………….05

STATEMENT OF JURISDICTION ………………………………….……………………….......06

STATEMENT OF FACTS ………………………………….……………………………………07

STATEMENT OF ISSUES ………………………………….…………………………………...09

SUMMARY OF ARGUMENTS ………………………………….………………………………10

ARGUMENTS ADVANCED ………………………………….…………………………………12

I. WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO ENTERTAIN THE
PRESENT PETITION?

1.1. Introduction

1.2. Jurisdiction under Article 32 of the Constitution

1.3. Limited Judicial Review under Kihoto Hollohan v. Zachillhu and Others

1.4. Application of Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Other

1.5. Power to Interpret and Enforce the Constitution

1.6. Relevant Case Laws

1.7. Conclusion

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

2.1. Introduction

2.2. The 10th Schedule and the Basic Structure of the Constitution

2.3. Prohibition of Honest and Genuine Dissent

2.4. Role of the Speaker

2.5. Violation of Separation of Powers

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2.6. Judicial Review

2.6.1. Speaker's partisan position

2.6.2. No fixed time limit

2.6.3. No appeal mechanism

2.6.4. Not a judicial body

2.6.5. Political pressure

2.6.6. Limited grounds of disqualification

2.7. Supreme Court's Emphasis on Impartiality of Speaker

2.8. Speaker's Conflict of Interest

2.9. Role of Election Commission of India

2.10. Unconstitutionality of Provisions in Tenth Schedule

2.11. Supreme Court's Guidelines and Court's Check on Speaker's Power

2.12. Conclusion

III. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING HONEST AND
GENUINE DISSENT DESERVES TO BE DECLARED AS UNCONSTITUTIONAL?

3.1. Introduction

3.2. Constitutional Validity of 10th Schedule

3.3. The Present Case

3.4. Honest and Genuine Dissent

3.5. Disciplinary Action

3.6. Reasons for unconstitutionality

3.6.1. Violation of the Right to Free Speech

3.6.2. Violation of the Principle of Democracy

3.6.3. Violation of the Principle of Separation of Powers

3.6.4. Unreasonable Restrictions on Fundamental Rights

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3.6.5. Chilling Effect on Political Discourse

3.7. Violation of Parliamentary Privileges

3.8. Restriction on Freedom of Speech

3.9. Importance of Parliamentary Privileges

3.10. Judicial Review of Speaker's Decision

3.11. Party Discipline and Internal Rules

3.12. Conclusion

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

PRIVILEGES PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?

4.1. Introduction:

4.2. Tenth Schedule of the Constitution and Parliamentary Privileges:

4.3. Immunity under Article 105 of the Constitution

4.4. Case Study: Dr. Bholenath Naik's Criticism of Government Policy

4.5. Scope of Parliamentary Privileges and Reasonable Restrictions

4.6. Constitutionality of the Tenth Schedule and Anti-Defection Law

4.7. Constitutionality of the Tenth Schedule and Anti-Defection Law

4.8. Privileges and immunity to members of Parliament and State Legislatures

4.9. Flaws in the Merger Provision of the Tenth Schedule

4.10. Judicial Review of Speaker's Decision and Malafide Considerations

4.11. Protection of Parliamentary Privileges and Democratic Principles

PRAYER FOR RELIEF ………………………………………………………………………..26

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INDEX OF AUTHORITIES

CASE LAWS:

1. Kihoto Hollohan v. Zachillhu, (1992) 1 SCC 309

2. Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184

3. S. R. Bommai v. Union of India, (1994) 3 SCC 1

4. M. Nagaraj v. Union of India, (2006) 8 SCC 212

5. Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 3 SCC 184

6. Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184

7. Shivamurthy Swami v. High Court of Karnataka, (2007) 10 SCC 475

8. Ramesh Yeshwant Prabhoo v. Prabhakar K. Kunte, (1996) 1 SCC 130

9. State of Punjab v. Salil Sabhlok, (2021) 5 SCC 322

10. Kuldip Nayar v. Union of India, AIR 2006 SC 3127

LEGAL PROVISIONS:

1. Article 19(1)(a) of the Constitution

2. Article 32 of the Constitution

3. Tenth Schedule of the Constitution

4. Section 4 of the Schedule

5. Articles 19(1)(c) of the Constitution

6. Section 2(b) of the Tenth Schedule

7. Article 105 of the Constitution

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STATEMENT OF JURISDICTION

The Counsel appearing on behalf of the Appellant have endorsed their pleadings before this
Hon’ble Supreme Court Of Indiana under Article 32 of the Constitution of Indiana by invoking
a Special Leave Petition in this Court upon being aggrieved by the decision taken by the Lower
Courts.

Article 32 of Indiana Constitution

32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

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STATEMENT OF FACTS

INDIANA'S PARLIAMENTARY DEMOCRACY AND ITS TWO MAJOR POLITICAL PARTIES

Indiana's parliamentary democracy is a multi-party system. There are many national and
regional political parties contributing to national politics. The National Indiana Congress (NIC)
and Independent Party of Indiana (IPI) are two major political parties. The Constitution of
Indiana has Independence of Judiciary, Separation of Powers, and Secularism as its basic
features. In general elections of 2019, IPI got a simple majority in Lok Sabha, which enabled
it to establish its government in the center.

AMBITIOUS AND UNHAPPY LEADERS

Considering the simple majority, the ruling party always felt the potential threat to its
Governmental stability, not only from the opposition parties but also from some ambitious and
unhappy leaders within the party itself. Dr. Bholenath Naik, a member of Lok Sabha and senior
leader from IPI, was feeling ignored and was not happy with the way in which he was being
treated by the top party leaders.

THE NATIONAL HIGHWAY BILL, 2017

On December 9, 2020, the Central Government proposed The National Highway Bill, 2017.
Many members of Lok Sabha opposed the proposed bill as they considered the said national
highway unnecessary due to the availability of alternative state highways. Dr. Bholenath Naik
was very upset as the proposed national highway was going through some of the villages of his
constituency. While the discussion was going on about the new Bill in Lok Sabha, he protested
against the Government policy by saying it went against the farmer’s interest.

THE VOTING

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

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SHOW CAUSE NOTICE

The bill was passed with a narrow majority. While analyzing the results, the ruling party leader
suspected that some of the party members would not have voted in favor of the bill and found
two of its members, Dr. Bholenath Naik and Mr. Dependra Keshav, were absent for the voting.
Taking cognizance of the matter, Mr. Abhay Thakkar issued a show cause notice to both of
them.

MEDICAL REASONS FOR ABSENCE

Both members gave medical reasons to justify their absence. To support his contention, Mr.
Dependra Keshav provided required documents, but Dr. Bholenath Naik did not provide any
documentary proof.

CRITICISM AGAINST GOVERNMENT POLICY

After few days, in one television interview, Dr. Bholenath Naik strongly criticized the
Governmental policy towards farmers. He said that the Government’s plan to acquire farmers'
land shows a lack of sensitivity on the part of the Government towards farmers. He further
expressed his wholehearted support to the people’s fight for the interest of farmers.

NOTICE ISSUED TO BOTH PARTIES

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. Both parties were issued the
notice and were asked to present their side within 5 days. On the 5th day, Dr. Bholenath Naik
prayed for the adjournment, but it was rejected.

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STATEMENT OF ISSUES

I.
WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO ENTERTAIN THE
PRESENT PETITION?

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

III.
WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING HONEST AND
GENUINE DISSENT DESERVES TO BE DECLARED AS UNCONSTITUTIONAL?

IV.
WHETHER SECTION 2 (B) OF THE 10TH SCHEDULE VIOLATES PARLIAMENTARY PRIVILEGES
PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?

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SUMMARY OF ARGUMENTS

I. WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO ENTERTAIN THE
PRESENT PETITION?

The Appellant in the present case argues that the Supreme Court of Indiana has the jurisdiction
to entertain the petition on the disqualification of the Appellant from the Legislative Assembly.
This discusses the various subheadings related to the Appellant's arguments. the Appellant
argues that the Supreme Court of Indiana has the jurisdiction to entertain the present petition
on the disqualification of the Appellant from the Legislative Assembly. The Appellant relies
on the fundamental right to free speech and expression, limited judicial review under Kihoto
Hollohan v. Zachillhu and Others, the application of Raja Ram Pal v. Hon'ble Speaker, Lok
Sabha and Others, and the power to interpret and enforce the Constitution to support the
argument for jurisdiction. In light of the above arguments and legal provisions, the Appellant
prays that the Supreme Court of Indiana exercise its jurisdiction under Article 32 of the
Constitution and declare the disqualification of the Appellant by the Speaker as
unconstitutional and void ab initio. The Appellant also seeks a direction from the Court to
reinstate the Appellant as a Member of the Legislative Assembly.

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

the impartiality and independence of the Speaker while discharging duties under the Tenth
Schedule is of utmost importance to maintain the integrity of the adjudicatory machinery and
uphold the democratic principles of the Constitution. While there are concerns about the
Speaker's impartiality due to their political affiliations, the Supreme Court has laid down
guidelines to ensure fair and impartial decision-making. Additionally, the provision of an
independent adjudicatory mechanism in the form of the Election Commission of India provides
an alternative option if the Speaker is unable to act impartially. Overall, the issue of political
defections and the constitutional validity of the Tenth Schedule remain a subject of debate and
require continued attention.

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III. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING HONEST AND
GENUINE DISSENT DESERVES TO BE DECLARED AS UNCONSTITUTIONAL?

The 10th Schedule does not prohibit honest and genuine dissent within a political party, it is
important for members to adhere to party discipline when it comes to voting. The issue of Dr.
Bholenath Naik's absence from voting can be dealt with by the party taking disciplinary and
based on these arguments, the Appellant submits that the Tenth Schedule of the Constitution
deserves to be declared unconstitutional. The provision violates fundamental rights and
principles enshrined in the Constitution and goes against the principles of a democratic society.

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

PRIVILEGES PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?

The provision of the 10th Schedule that allows MPs to switch parties if their original party
merges with another party is also problematic, as it effectively allows a backdoor entry for
defectors. This was pointed out by the Supreme Court in Ravi S. Naik v. Union of India, where
it was held that the act of joining a new party after a merger does not exempt an MP from
disqualification if they had originally defected from their party. The purpose of anti-defection
laws is to prevent horse-trading and to ensure that MPs act in the best interest of their
constituents, rather than in the interest of their political party. In light of the above, it is
submitted that Section 2(b) of the Tenth Schedule is unconstitutional as it violates the
parliamentary privileges provided under Article 105 of the Constitution.

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ARGUMENTS ADVANCED

I. WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO ENTERTAIN THE
PRESENT PETITION?

1.1. Introduction:

The Appellant in the present case argues that the Supreme Court of Indiana has the jurisdiction
to entertain the petition on the disqualification of the Appellant from the Legislative Assembly.
This discusses the various subheadings related to the Appellant's arguments.

1.2. Jurisdiction under Article 32 of the Constitution:

The Appellant contends that the present petition involves the violation of the fundamental right
to free speech and expression as guaranteed by Article 19(1)(a) of the Constitution. Therefore,
the Appellant argues that the Supreme Court of Indiana has the jurisdiction to entertain the
present petition under Article 32 of the Constitution, which provides for the right to move the
Supreme Court for the enforcement of fundamental rights.

1.3. Limited Judicial Review under Kihoto Hollohan v. Zachillhu and Others:

The Appellant relies on the Supreme Court's decision in Kihoto Hollohan v. Zachillhu1 and
Others, where it was held that the Speaker's decision under the Tenth Schedule is amenable to
judicial review on limited grounds, including jurisdictional errors and violations of
constitutional mandates. The Appellant contends that the present case involves a jurisdictional
error, as the Speaker did not have the jurisdiction to decide the disqualification petition against
the Appellant. In the case of S.R. Bommai vs. Union of India2, the Supreme Court held that
the decision of the Speaker under the Tenth Schedule is subject to judicial review and the court
can examine whether the decision was taken in accordance with the principles of
natural justice. Also in the case of Samsher Singh vs State of Punja3, the Supreme Court held
that the power of judicial review is an integral part of the basic structure of the Constitution
and cannot be taken away by Parliament.

1
(1992) 1 SCC 309
2
(1994) 3 SCC 1:
3
(1974)
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1.4. Application of Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others

The Appellant also relies on the Supreme Court's decision in Raja Ram Pal v. Hon'ble
Speaker, Lok Sabha and Others4, where it was held that the Speaker's decision to disqualify a
Member of Parliament under the Tenth Schedule is subject to judicial review. The Appellant
argues that this decision should apply to disqualification proceedings against Members of
Legislative Assemblies as well.

1.5. Power to Interpret and Enforce the Constitution

Additionally, the Appellant argues that the Constitution vests the power to interpret and enforce
the Constitution in the judiciary. The Appellant contends that the Supreme Court has the
jurisdiction to interpret and enforce the Constitution, including the provisions of the Tenth
Schedule. The Appellant argues that the Tenth Schedule must be interpreted and applied in
accordance with the Constitution and the principles of natural justice.

1.6. Relevant Case Laws:

To support the argument for the jurisdiction of the Supreme Court of Indiana, the Appellant
refers to Chandra Kumar v. Union of India5, the Supreme Court held that judicial review is
an integral and essential feature of the Constitution and cannot be ousted by Parliament by
enacting a law.

1.7. Conclusion:

In conclusion, the Appellant argues that the Supreme Court of Indiana has the jurisdiction to
entertain the present petition on the disqualification of the Appellant from the Legislative
Assembly. The Appellant relies on the fundamental right to free speech and expression, limited
judicial review under Kihoto Hollohan v. Zachillhu and Others, the application of Raja Ram
Pal v. Hon'ble Speaker, Lok Sabha and Others, and the power to interpret and enforce the
Constitution to support the argument for jurisdiction. In light of the above arguments and legal
provisions, the Appellant prays that the Supreme Court of Indiana exercise its jurisdiction
under Article 32 of the Constitution and declare the disqualification of the Appellant by the
Speaker as unconstitutional and void ab initio. The Appellant also seeks a direction from the
Court to reinstate the Appellant as a Member of the Legislative Assembly.

4
Kuldip Nayar v. Union of India, AIR 2006 SC 3127
5
(1997)
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II. WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER THE 10TH SCHEDULE
SATISFIES THE REQUIREMENT OF INDEPENDENT ADJUDICATORY MACHINERY?

2.1. Introduction

The independence of the adjudicatory machinery is a crucial aspect of democracy, and the
Tenth Schedule was introduced in the Constitution to prevent political defections and ensure
government stability. However, the impartiality and independence of the Speaker while
deciding matters under the Tenth Schedule are essential for achieving the objectives of the
Schedule.

2.2. The 10th Schedule and the Basic Structure of the Constitution:

The 10th Schedule of the Constitution of India was added through the 52nd Amendment Act
in 1985 to address the issue of political defections 6. However, many argue that the provision
violates the basic structure of the Constitution, which is a set of fundamental principles that
cannot be amended. The provision also violates the fundamental right to freedom of speech
and expression, which is enshrined in the Constitution.

2.3. Prohibition of Honest and Genuine Dissent:

One of the main criticisms of the 10th Schedule is that it prohibits honest and genuine dissent.
The provision does not differentiate between voluntary defections and defections that are a
result of genuine disagreements with the party's policies and principles. This results in an
arbitrary restriction on the right to dissent, which is a fundamental right under the Constitution.

2.4. Role of the Speaker:

Another issue with the 10th Schedule is the role of the Speaker in deciding on defection cases.
The provision allows the Speaker, who is a member of the political party, to act as an
adjudicatory authority7. This raises concerns about impartiality, as the Speaker may have a
conflict of interest while deciding the disqualification of a member of the same party 8.

6
S. R. Bommai v. Union of India, (1994) 3 SCC 1
7
M. Nagaraj v. Union of India, (2006) 8 SCC 212
8
Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 3 SCC 184
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2.5. Violation of Separation of Powers:

The provision also violates the principle of separation of powers, which requires a clear
separation between the legislative, executive, and judicial branches of government. The
Speaker, who is a member of the legislature, is given the power to disqualify members of the
legislature. This goes against the fundamental principle of separation of powers 9. In the case of
State of Karnataka vs. Union of India10, the Supreme Court held that the Constitution provides
for a separation of powers between the legislature, executive and judiciary, and the judiciary
has the power to interpret the Constitution and the laws made by the legislature11.

2.6. Judicial Review:

In Kihoto Hollohan v. Zachillhu and Others (1992), the Supreme Court held that the Speaker
must act as an impartial tribunal while deciding the disqualification of a member under the 10th
Schedule and that the Speaker of the House is not a mere mouthpiece of the majority party and
must act independently and impartially in deciding disqualification petitions under the Tenth
Schedule. In the case of Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007), the Supreme
Court held that the Speaker's decision on disqualification petitions under the Tenth Schedule is
subject to judicial review on limited grounds, including mala fides, perversity, and violation of
the principles of natural justice:

2.6.1. Speaker's partisan position: The Speaker is an elected member of the House and
belongs to a political party. This partisan position may lead to a conflict of interest
while deciding the disqualification of a member of the same party. The Appellant can
argue that the Speaker's decision may be influenced by the party leadership rather than
a fair assessment of the facts.

2.6.2. No fixed time limit: The Tenth Schedule does not prescribe any time limit within
which the Speaker must decide on the disqualification petition. This absence of a fixed
time limit may lead to a delay in the decision-making process, causing unnecessary
uncertainty and instability in the House.

2.6.3. No appeal mechanism: The Speaker's decision on disqualification is final and not
subject to any appeal or review. The Appellant can argue that this lack of appeal

9
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184
10
(1977) 4 SCC 608
11
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184
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mechanism undermines the fundamental principles of natural justice and the rule of
law.

2.6.4. Not a judicial body: The Speaker is not a judicial body and does not possess the
necessary training or expertise to adjudicate on complex legal issues. The Appellant
may argue that the Speaker's decision may not be based on a proper understanding of
the law and may be arbitrary or capricious.

2.6.5. Political pressure: The Speaker may face political pressure from the ruling party
or other influential members of the House while deciding on a disqualification petition.
This pressure may lead to a biased decision and compromise the integrity of the
Speaker's office.

2.6.6. Limited grounds of disqualification: The Tenth Schedule provides for

disqualification only on the grounds of defection. The Appellant may argue that this
limited scope of disqualification undermines the broader principles of democracy and
the rule of law.

In the case of Ravi S. Naik v. Union of India, the Supreme Court held that the Tenth Schedule
does not violate the principle of separation of powers as the Speaker, while deciding
disqualification petitions, does not exercise any legislative power but merely performs a quasi-
judicial function.

Therefore, while deciding the matter against Dr. Bholenath Naik, the Speaker must follow the
principles of natural justice, act as an independent adjudicatory machinery, and ensure that his
decision is not influenced by any external pressure 12. The Speaker must also ensure that the
decision is in line with the provisions of the 10th Schedule and the relevant case laws.

2.7. Supreme Court's Emphasis on Impartiality of Speaker:

The Supreme Court has time and again emphasized the need for the Speaker to act impartially
while discharging their duties. In the landmark case of Kihoto Hollohan v. Zachillhu, the Court
held that the power of the Speaker or the Chairman of the House to decide on questions of
disqualification under the Tenth Schedule is a judicial power that must be exercised impartially
and without bias.

12
Shivamurthy Swami v. High Court of Karnataka, (2007) 10 SCC 475
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2.8. Speaker's Conflict of Interest:

The Appellant may argue that the current Speaker has failed to act independently in this case
due to a clear conflict of interest. As the Speaker belongs to the same political party as the
respondent, there is a vested interest in protecting them. This conflict of interest undermines
the impartiality of the adjudicatory machinery, and it becomes impossible for the Speaker to
act as an independent arbiter13.

2.9. Role of Election Commission of India:

The Tenth Schedule provides for an independent adjudicatory mechanism in the form of the
Election Commission of India. Section 4 of the Schedule states that if any question arises
regarding the disqualification of a member of a House of Parliament, the question shall be
referred to the Election Commission for its opinion. Therefore, if the Speaker is unable to act
impartially, the matter should be referred to the Election Commission for a decision.

2.10. Unconstitutionality of Provisions in Tenth Schedule:

The provision of the Tenth Schedule that prohibits honest and genuine dissent and the provision
that allows the Speaker to decide on defection cases are unconstitutional and violate the
fundamental rights and principles enshrined in the Constitution. The Speaker's partisan position
may lead to a conflict of interest while deciding the disqualification of a member of the same
party. The issue of political defections remains a contentious issue, and the constitutional
validity of the Tenth Schedule continues to be debated.

2.11. Supreme Court's Guidelines and Court's Check on Speaker's Power:

While concerns remain about the independence of the Speaker as an adjudicator under the
Tenth Schedule, the Supreme Court has upheld the Speaker's role and laid down guidelines to
ensure fair and impartial decision-making. Moreover, the Speaker's decisions can also be
challenged in the courts, which act as a check on the Speaker's power.

2.12. Conclusion:

In conclusion, the impartiality and independence of the Speaker while discharging duties under
the Tenth Schedule is of utmost importance to maintain the integrity of the adjudicatory
machinery and uphold the democratic principles of the Constitution. While there are concerns

13
Shivamurthy Swami v. High Court of Karnataka, (2007) 10 SCC 475
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about the Speaker's impartiality due to their political affiliations, the Supreme Court has laid
down guidelines to ensure fair and impartial decision-making. Additionally, the provision of
an independent adjudicatory mechanism in the form of the Election Commission of India
provides an alternative option if the Speaker is unable to act impartially. Overall, the issue of
political defections and the constitutional validity of the Tenth Schedule remain a subject of
debate and require continued attention.

III. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING HONEST AND
GENUINE DISSENT DESERVES TO BE DECLARED AS UNCONSTITUTIONAL?

3.1. Introduction:

The 10th Schedule of the Constitution, also known as the Anti-Defection Law, has been
enacted to curb political defections and to ensure stability and integrity in the democratic
system. However, the provision that prohibits honest and genuine dissent has been criticized
for being undemocratic and against the principles of free speech and expression.

3.2. Constitutional Validity of 10th Schedule:

The Supreme Court, in its landmark judgment in the Kihoto Hollohan case, upheld the
constitutional validity of the 10th Schedule. However, the Court also held that the law cannot
be used to stifle dissent within a political party14.

3.3. The Present Case:

In the present case, Dr. Bholenath Naik expressed his dissent against the Government policy
by protesting against the National Highway Bill, 2017, and later criticized the Government's
policy towards farmers in a television interview. The party leader issued a whip to compel
attendance of party members for voting on the bill, but Dr. Bholenath Naik and Mr. Dependra
Keshav were absent. The party leader issued a show cause notice to both members, suspecting
that they did not vote in favor of the bill. In the landmark case of Kesavananda Bharati v. State
of Kerala (1973), the Supreme Court held that the basic structure of the Constitution cannot be
amended. This case has been cited in several subsequent cases to argue that certain provisions

14
Ramesh Yeshwant Prabhoo v. Prabhakar K. Kunte, (1996) 1 SCC 130
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of the Constitution, including the Tenth Schedule, may be unconstitutional if they violate the
basic structure.

3.4. Honest and Genuine Dissent:

The 10th Schedule does not prohibit honest and genuine dissent within a political party.
Therefore, Dr. Bholenath Naik's dissent against the Government policy and his criticism
towards it cannot be deemed as defection under the 10th Schedule.

3.5. Disciplinary Action:

The issue of Dr. Bholenath Naik's absence from the voting on the bill is a matter of party
discipline and not defection. The party has the right to take disciplinary action against its
members for violating the whip. However, Dr. Bholenath Naik did not provide any
documentary proof for his medical reasons for absence.

3.6. Reasons for unconstitutionality:

The Appellant argues that the Tenth Schedule of the Constitution, which prohibits honest and
genuine dissent, deserves to be declared unconstitutional on the following grounds:

3.6.1. Violation of the Right to Free Speech: The Tenth Schedule violates the right to
free speech guaranteed under Article 19(1)(a) of the Constitution. The provision does
not allow for any kind of dissent or disagreement with the party line, even if it is honest
and genuine. This amounts to a violation of the fundamental right to free speech.

3.6.2. Violation of the Principle of Democracy: The Tenth Schedule also violates the
principle of democracy enshrined in the Constitution. The provision seeks to stifle
dissenting voices within political parties and consolidate power in the hands of a few
individuals. This is antithetical to the spirit of democracy and goes against the principles
of fair and free elections.

3.6.3. Violation of the Principle of Separation of Powers: The Tenth Schedule also
violates the principle of separation of powers enshrined in the Constitution. The
provision empowers the Speaker to decide on matters of disqualification of members
of the House, which is essentially a judicial function. This leads to a concentration of
power in the hands of the Speaker and is against the principle of separation of powers.

3.6.4. Unreasonable Restrictions on Fundamental Rights: The Tenth Schedule imposes

unreasonable restrictions on the fundamental right to free speech and the right to form
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associations guaranteed under Articles 19(1)(a) and 19(1)(c) of the Constitution. The
provision seeks to stifle dissent and force members to toe the party line, which is against
the principles of a democratic society.

3.6.5. Chilling Effect on Political Discourse: The Tenth Schedule also has a chilling
effect on political discourse within political parties. It stifles debate and discussion on
important issues and prevents the exchange of ideas and opinions. This is detrimental
to the functioning of a healthy democracy and goes against the principles of free and
fair elections.

3.7. Violation of Parliamentary Privileges:

The Appellant submits that Section 2(b) of the Tenth Schedule violates the parliamentary
privileges provided under Article 105 of the Constitution, which provides for freedom of
speech in Parliament and protects Members of Parliament from any proceedings in any court
in respect of anything said or any vote given by them in Parliament or any committee thereof.

3.8. Restriction on Freedom of Speech:

The Tenth Schedule imposes a restriction on the freedom of speech of the Members of
Parliament by prohibiting them from expressing any dissent against their party's decision,
which is arbitrary and violates the fundamental right to freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution.

3.9. Importance of Parliamentary Privileges:

Parliamentary privileges are an essential element of our democratic system, and any legislation
that seeks to limit these privileges must be carefully scrutinized. The Supreme Court has held
in various cases that the privilege of the Members of Parliament is essential for the effective
functioning of the legislative process15.

3.10. Judicial Review of Speaker's Decision:

The Supreme Court has held that the restriction imposed by the Tenth Schedule must be
construed narrowly, and the speaker's decision under the Tenth Schedule must be subject to
judicial review.

15
State of Punjab v. Salil Sabhlok, (2021) 5 SCC 322
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3.11. Party Discipline and Internal Rules:

In the present case, it is up to the party to decide whether to accept or reject Dr. Bholenath
Naik's medical reasons for absence. If the party finds that his absence was without sufficient
cause and in violation of the whip, it may take disciplinary action against him as per its internal
rules and regulations. The issue of his absence from the voting on the bill is a matter of party
discipline, and it is up to the party to take appropriate action based on the facts and
circumstances of the case.

3.12. Conclusion:

In conclusion, while the 10th Schedule does not prohibit honest and genuine dissent within a
political party, it is important for members to adhere to party discipline when it comes to voting.
The issue of Dr. Bholenath Naik's absence from voting can be dealt with by the party taking
disciplinary and based on these arguments, the Appellant submits that the Tenth Schedule of
the Constitution deserves to be declared unconstitutional. The provision violates fundamental
rights and principles enshrined in the Constitution and goes against the principles of a
democratic society.

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

PRIVILEGES PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?

4.1. Introduction:

This article discusses the constitutional provisions that protect parliamentary privileges and the
consequences of defection in Indian politics. It also examines the case of Dr. Bholenath Naik,
a member of Lok Sabha, who criticized the government's policy towards farmers and was
issued a notice under Section 2(b) of the Tenth Schedule of the Constitution.

4.2. Tenth Schedule of the Constitution and Parliamentary Privileges:

Section 2(b) of the Tenth Schedule of the Constitution deals with disqualification on the ground
of defection, which means that if a member of a political party joins another political party or
acts against the direction of his/her political party, he/she may be disqualified from being a
member of Parliament or State Legislature.

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4.3. Immunity under Article 105 of the Constitution:

Article 105 of the Constitution provides immunity to members of Parliament and State
Legislatures from legal action in respect of their speech or vote given in Parliament or any
committee thereof. This provision is crucial in ensuring that the members can freely express
their views without any fear of prosecution or harassment.

4.4. Case Study: Dr. Bholenath Naik's Criticism of Government Policy:

In the given case, Dr. Bholenath Naik, a member of Lok Sabha, criticized the Government's
policy towards farmers in a television interview. Mr. Abhay Thakkar forwarded a petition to
the Speaker of Lok Sabha and requested him to take action against Dr. Bholenath Naik for his
statements. Both parties were issued a notice and were asked to present their side within 5 days.

The contention here is that the action against Dr. Bholenath Naik under the Tenth Schedule of
the Constitution may be seen as a violation of parliamentary privileges provided under Article
105 of the Constitution. However, it should be noted that the scope of parliamentary privileges
is not absolute and is subject to reasonable restrictions.

4.5. Scope of Parliamentary Privileges and Reasonable Restrictions:

The Supreme Court of India has held in various cases that parliamentary privileges cannot be
used as a shield for unconstitutional acts committed by members of Parliament. In the case of
Keshav Singh v. Speaker, Legislative Assembly16 the Court held that the power of Parliament
and State Legislatures to punish their members for breach of privilege must be used only for
the purpose of maintaining their dignity and authority and not for vindictive or arbitrary
purposes.

Therefore, whether Section 2(b) of the Tenth Schedule violates parliamentary privileges
provided under Article 105 of the Constitution will depend on the specific facts of the case and
the scope of parliamentary privileges as interpreted by the courts. The court will have to
examine whether the statements made by Dr. Bholenath Naik were made in the course of his
duties as a member of Parliament or whether they were made in his personal capacity, and
whether the action taken against him is arbitrary or vindictive.

16
(1965) 1 SCR 413
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4.6. Constitutionality of the Tenth Schedule and Anti-Defection Law:

The Appellant submits that Section 2(b) of the Tenth Schedule violates the parliamentary
privileges provided under Article 105 of the Constitution. Article 105 provides that the
Members of Parliament shall have the freedom of speech in Parliament, and no member 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.

4.7. Constitutionality of the Tenth Schedule and Anti-Defection Law:

The Tenth Schedule imposes a restriction on the freedom of speech of the Members of
Parliament by prohibiting them from expressing any dissent against their party's decision. This
restriction is arbitrary and violates the fundamental right to freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution.

The Parliamentary privileges are an essential element of our democratic system, and any
legislation that seeks to limit these privileges must be carefully scrutinized. The Supreme Court
has held in various cases that the privilege of the Members of Parliament is essential for the
effective functioning of the legislative process.

In Keshav Singh's case, the Supreme Court held that the privileges of the members of the
legislative assemblies are sacrosanct and that any law that seeks to infringe upon them must be
scrutinized with the utmost care. In the same case, the Court held that the Members of
Parliament have the right to freely express their views in the House, and any law that seeks to
limit that right must be carefully scrutinized.

Similarly, in the case of Raja Ram Pal v. Hon'ble Speaker, Lok Sabha17, the Supreme Court
held that the parliamentary privileges are not absolute and that they are subject to the limitations
imposed by the Constitution. The Court further held that the restriction imposed by the Tenth
Schedule must be construed narrowly and that the speaker's decision under the Tenth Schedule
must be subject to judicial review.

4.8. Privileges and immunity to members of Parliament and State Legislatures:

In conclusion, while Article 105 of the Constitution provides immunity to members of

Parliament and State Legislatures, this immunity is subject to reasonable restrictions, and the

17
(2007) 3 SCC 184)
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scope of parliamentary privileges is not absolute. Therefore, any action taken against a member
of Parliament under the Tenth Schedule of the Constitution must be examined in light.

Article 105 of the Constitution provides certain privileges to MPs, but these privileges cannot
be used to shield them from the law. The 10th Schedule, by allowing MPs to switch parties
without facing disqualification, violates the principles of natural justice and is therefore
unconstitutional.

The privilege of free speech that is guaranteed to MPs under Article 105 does not extend to the
act of switching parties. By allowing MPs to switch parties without facing disqualification, the
10th Schedule is effectively overriding the constitutional provisions of Articles 102 and 191,
which clearly state that MPs who defect from their party shall be disqualified.

4.9. Flaws in the Merger Provision of the Tenth Schedule:

The provision of the 10th Schedule that allows for a merger of political parties as a defence
against disqualification is inherently flawed. It is often misused to circumvent anti-defection
laws, as parties may merge on paper without any real change in their composition or ideology.
This goes against the spirit of the Constitution, which seeks to promote democracy and prevent
abuse of power.

4.10. Judicial Review of Speaker's Decision and Malafide Considerations:

The Supreme Court has already held in the case of Kihoto Hollohan v. Zachillhu that the 10th
Schedule is constitutional, but the court also stated that the Speaker's decision can be subject
to judicial review if it is found to be malafide or based on extraneous considerations. In this
case, the Speaker's decision to disqualify the appellant was based on political considerations
rather than legal ones, and therefore the court must intervene to protect the integrity of the
Constitution.

4.11. Protection of Parliamentary Privileges and Democratic Principles:

The provision of the 10th Schedule that allows MPs to switch parties if their original party
merges with another party is also problematic, as it effectively allows a backdoor entry for
defectors. This was pointed out by the Supreme Court in Ravi S. Naik v. Union of India, where
it was held that the act of joining a new party after a merger does not exempt an MP from
disqualification if they had originally defected from their party.

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The purpose of anti-defection laws is to prevent horse-trading and to ensure that MPs act in the
best interest of their constituents, rather than in the interest of their political party. The 10th
Schedule, by allowing MPs to switch parties without any consequences,

In light of the above, it is submitted that Section 2(b) of the Tenth Schedule is unconstitutional
as it violates the parliamentary privileges provided under Article 105 of the Constitution.

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PRAYER FOR RELIEF

Wherefore in light of issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. To HOLD that the Supreme Court of Indiana has the jurisdiction to entertain the present
petition.
2. To ADJUDGE that the speaker while deciding the matter under the 10th schedule satisfies
the requirement of independent adjudicatory machinery.
3. To DECLARE that the 10th schedule of the constitution prohibiting honest and genuine
dissent deserves to be declared as unconstitutional.
4. To PRONOUNCE that Section 2 (b) of the 10th schedule violates parliamentary privileges
provided under article 105 of constitution.

And/or

Pass any other relief, that this Hon’ble Court may be pleased to grant in the interest of
Justice, Equity and Good Conscience

Fiat Justia Et Periat Mundas, i.e., Let there be Justice, though the World perishes

(Counsel appearing on behalf of the Appellant)

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