Issue 1: Maintainability of PIL

1.1: Locus Standi of PIL

A PIL can be filed in the interest of the petitioner as in the case of Fertilizer Corporation
Kamagar Union (Regd.), Sindri and Ors. V. Union of India and Ors1 . “The purpose of PIL is
to promote the public interest which mandates that violation of legal or constitutional rights
of large number of person, poor, downtrodden, ignorant, socially or economically
disadvantaged should not go un-redressed. The Court can take cognizance in PIL when there
are complaints which shocks the judicial conscience. PIL is Pro Bono Publico and should not
smack of any ulterior motive and no person has a right to achieve any ulterior purpose
through such litigations.”
The petitioners' cause transcends the narrow confines of party politics and resonates with the
broader interests of society at large. In S.P. Gupta v. President of India (1981 SCR (2) 365),
the Supreme Court ushered in a new era of judicial activism by expanding the scope of
Public Interest Litigation to encompass matters of public concern. The Court recognized the
inherent power of the judiciary to intervene in cases where fundamental rights are at stake or
where the public interest demands judicial scrutiny. In the present case, the petitioners seek
to challenge the constitutionality of the Anti-Defection Law, a matter of profound public
interest that goes to the very heart of democratic governance. By invoking the jurisdiction of
the Supreme Court through the mechanism of Public Interest Litigation, the petitioners are
not only asserting their own rights but also acting as custodians of the democratic ethos
enshrined in the Indian Constitution. Thus, the Respondents' attempt to impugn the
maintainability of the petition on the grounds of public interest falls flat in light of the
expansive interpretation of PIL jurisprudence.

The Petitioners assert that the constitutional architecture of India, akin to India, enshrines
within it a robust mechanism for the protection and enforcement of fundamental rights,
including the right to approach the judiciary for redressal. Article 32 of the Constitution of
India serves as the bedrock of this right, mirroring its Indian counterpart in providing citizens
with an avenue to seek recourse against infringements upon their fundamental rights.
The essence of Article 32, much like its Indian counterpart, is to act as a bulwark against
arbitrary state action and to uphold the supremacy of fundamental rights. It is well-
established jurisprudence that the right to constitutional remedies encompasses within its
ambit the right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by Part III of the Constitution of India.
In the seminal case of Maneka Gandhi v. Union of India (1978), the Supreme Court of India
delineated the expansive scope of Article 32, affirming its status as a fundamental right in
itself. The Court underscored the pivotal role of Article 32 in safeguarding fundamental rights
and ensuring access to justice for aggrieved citizens.
I
1.2 The petitioners' recourse to the Supreme Court is not merely an exercise in legal
formalism but a solemn invocation of constitutional remedies guaranteed under Articles 32
and 226 of the Zondian Constitution. In State of Karnataka v. Union of India (1977 SCR (3)
251), the Supreme Court affirmed the sacrosanct principle that the judiciary serves as the
ultimate guardian of the Constitution, entrusted with the solemn duty to uphold and enforce
its provisions. Article 32 confers upon individuals the invaluable right to seek redressal for
the violation of fundamental rights, thereby serving as a bulwark against executive excesses
and legislative encroachments. In the present case, the petitioners assert their right to
constitutional remedies in challenging the constitutionality of the Anti-Defection Law, a law
that strikes at the very core of their democratic freedoms. By approaching the Supreme Court,
the petitioners seek not only personal relief but also the vindication of constitutional values
that form the bedrock of the Zondian polity. Consequently, the Respondents' contention that
the petitioners' claim lacks legal merit is belied by the unequivocal mandate of the
Constitution itself.

Issue 2: Whether 10th schedule of the constitution prohibiting honest and genuine
dissent deserves to be declared unconstitutional?
The respondents contend that the provisions of the Tenth Schedule of the Constitution,
particularly section 2(b), are constitutionally sound and serve the purpose of maintaining
discipline and party integrity within the legislature. However, it is imperative to analyze the
precedents set by the Supreme Court of India to understand the limitations of the Anti-
Defection Law and its compatibility with the fundamental principles of democracy.

Here in this case the six petitioners Amar, Sneha, Rahul, Neha, Vikram, and Aisha contend
that their Fundamental Rights protected under article 19(1)(a), and article 21 has been
infringed by disqualifying them just because they have implemented their Right in the
parliament. Article 19(1)(a) which says “(1) All citizens shall have the right—
(b) to freedom of speech and expression”,
but they have been disqualified just because they gave a dissenting opinion rather than the
majority one which is nothing but expressing their freedom of speech. The importance of
Dissenting opinions are witnessed in the case Plessy v. Ferguson (1896), a landmark United
States Supreme Court decision upholding the constitutionality of racial segregation under the
"separate but equal" doctrine, in this case Justice Harlan gave his dissenting opinion which
ultimately influenced later decisions, including the famous 1954 case Brown v. Board of
Education, which overturned the "separate but equal" doctrine. Such dissenting opinions are
not only important for the judiciary but also in the legislators i.e. in parliaments.
In Ravi S. Naik vs. Union of India (AIR 1994 SC 1558), the Supreme Court reiterated the
need to interpret the Anti-Defection Law in a manner that upholds democratic principles. The
Court cautioned against any interpretation of the law that would undermine the right of
elected representatives to express their dissent or exercise their conscience in legislative
matters. Therefore, any provision in the Tenth Schedule that restricts honest and genuine
dissent violates the fundamental right to freedom of speech and expression as guaranteed by
Article 19(1)(a) of the Indian Constitution.
In the case of *Kihoto Hollohan vs. Zachillhu and Others* (AIR 1993 SC 412) underscores
the importance of dissent in a democratic setup. While upholding the constitutionality of the
Tenth Schedule, the Court explicitly emphasized that the law should not be wielded as a tool
to suppress genuine dissent or curtail the freedom of speech and expression of elected
representatives. The judgment clearly delineates that disqualification under the Tenth
Schedule should not be invoked arbitrarily to stifle differing opinions within political parties.
The respondents' argument that section 2(b) of the Tenth Schedule is necessary to maintain
party discipline overlooks the fundamental democratic principles enshrined in the
Constitution. The Tenth Schedule should not be utilized to suppress legitimate dissent or to
coerce elected representatives into toeing the party line against their conscience. Doing so
would be antithetical to the essence of democracy and would undermine the effective
functioning of the legislative process.
In light of the aforementioned legal precedents and constitutional principles, it is evident that
section 2(b) of the Tenth Schedule, which stifles honest and genuine dissent, deserves to be
declared unconstitutional. Such a provision contradicts the spirit of democracy, violates the
fundamental rights of elected representatives, and undermines the very foundation of
parliamentary democracy in Zondia. Therefore, the PIL filed by the six MLAs of IPA
challenging the constitutionality of section 2(b) of the Tenth Schedule is maintainable, and
the provision in question should be struck down by the Supreme Court to uphold the sanctity
of democratic principles and protect the rights of elected representatives.
4. It has been held by the Court that the freedom of speech guaranteed by clause (1) to the
Members of Parliament is in addition to the freedom of speech and expression guaranteed to the
citizens of this country by Article 19(1)(a) and that the said freedom guaranteed to the Members of
Parliament is not subject to the reasonable restrictions contemplated by clause (2) of Article 19. Of
course the said freedom is available only within the Houses of Parliament and is “subject to the
provisions of this Constitution” (which expression has been construed to mean subject to the
provisions of the Constitution which regulate the procedure of Parliament, namely, Articles 118 and
121).

Issue 3: Whether section 2(b) of the 10 th Schedule infringe upon privileges outlined in
article 105 of the constitution?
Section 2(b) of the Tenth Schedule of the Constitution of India, which allows for the
disqualification of members of Parliament and Legislative Assemblies for defection, can be
seen as infringing upon the privileges outlined in Article 105. Here's why:

Article 105 enshrines the freedom of speech and expression of members of Parliament. This
freedom allows MPs to express their opinions and represent the interests of their
constituents without fear of repercussions. However, Section 2(b) of the Tenth Schedule, by
providing for the disqualification of members for defection, infringes upon this freedom. It
creates a chilling effect on MPs, as they might fear expressing dissenting opinions or
changing political allegiances due to the threat of disqualification.

The provision for disqualification under Section 2(b) of the Tenth Schedule may discourage
members from expressing dissenting opinions, even if those opinions are in the best interest
of their constituents. Fear of disqualification for defection could lead to a situation where
MPs may feel compelled to stay with a particular party, even if they disagree with its policies
or actions, solely to avoid disqualification. This undermines the essence of the privileges
granted under Article 105.

Section 2(b) of the Tenth Schedule can be misused to stifle dissent within political parties. If
an MP decides to express dissent against the party's policies or actions, they could face
disqualification under the pretext of defection. This misuse poses a direct threat to the
freedom of speech and expression granted by Article 105, as it discourages MPs from voicing
their opinions freely.

The Tenth Schedule was incorporated into the Constitution to prevent defections, but if its
provisions, like 2(b), are used to silence legitimate dissent or freedom of expression, it
violates the basic structure of the Constitution. The basic structure doctrine, as articulated by
the Supreme Court, protects certain fundamental principles of the Constitution. The freedom
of speech and expression is one such principle, and any provision that directly undermines it
goes against this basic structure.

Section 2(b) reinforces the dominance of political parties over individual MPs, concentrating
power within party hierarchies rather than dispersing it among elected representatives. This
concentration of power undermines the principle of separation of powers and weakens the
checks and balances necessary for a functioning democracy.

Article 105 of the Constitution is designed to uphold the independence of the legislative
branch from external influences, including the executive and party leadership. Section 2(b)
compromises this independence by subjecting MPs to the disciplinary control of their
respective parties, blurring the lines between the executive and legislative branches of
government.

The petitioners assert that the Anti-Defection Law, as invoked by the respondents, violates
their fundamental right to freedom of speech and expression enshrined under Article 19(1)(a)
of the Constitution of India. The Supreme Court's ruling in Kihoto Hollohan v. Zachillhu
(1992) 1 SCC 309 elucidates that while the Anti-Defection Law is essential for maintaining
party discipline, it must not impede lawmakers' right to express dissent. The petitioners
contend that their conscientious decision to vote against the party whip in support of the
Regulation of Artificial Intelligence (AI) Bill, 2024, is an exercise of their democratic right to
express dissent on legislative matters. Therefore, any attempt to disqualify the petitioners for
exercising their freedom of speech and expression would be unconstitutional.
Furthermore, the article 105 of the Constitution of India elucidates that
Furthermore, the petitioners argue that section 2(b) of the Tenth Schedule infringes upon their
parliamentary privileges guaranteed under Article 105 of the Constitution of India. The
Supreme Court's pronouncement in Ravi Naik v. Union of India (1994) 3 SCC 1 emphasizes
the importance of safeguarding parliamentary privileges, including the freedom of speech and
expression of lawmakers. The petitioners contend that any interpretation of the Anti-
Defection Law that curtails parliamentary privileges would be antithetical to the principles of
democracy and constitutionalism. Therefore, the impugned provision of the Tenth Schedule
must be struck down as unconstitutional.
4. It has been held by the Court that the freedom of speech guaranteed by clause (1) to the
Members of Parliament is in addition to the freedom of speech and expression guaranteed to the
citizens of this country by Article 19(1)(a) and that the said freedom guaranteed to the Members of
Parliament is not subject to the reasonable restrictions contemplated by clause (2) of Article 19. Of
course the said freedom is available only within the Houses of Parliament and is “subject to the
provisions of this Constitution” (which expression has been construed to mean subject to the
provisions of the Constitution which regulate the procedure of Parliament, namely, Articles 118 and
121).

Issue 4: Whether the speaker while deciding the case under the 10 th schedule meeting
the criteria of being an independent adjudicatory machinery?

1. Partisan Affiliation: The Speaker of the House is typically a member of a

political party and holds a partisan position within the legislative body. This
inherent affiliation raises questions about the Speaker's ability to act
independently when adjudicating cases of defection under the Tenth
Schedule. The Speaker's allegiance to their party may influence their decisions,
undermining the impartiality required of an adjudicatory authority.
2. Lack of Legal Training: Unlike traditional adjudicatory bodies, such as courts
or tribunals, Speakers may not possess specialized legal training or expertise
in matters of constitutional law and parliamentary procedure. This lack of legal
acumen can hinder their ability to make informed and impartial decisions
when interpreting and applying the provisions of the Tenth Schedule.
3. Absence of Judicial Review: Decisions made by the Speaker under the Tenth
Schedule are not subject to judicial review, as per the Supreme Court's ruling
in Kihoto Hollohan v. Zachillhu. This lack of oversight undermines the
accountability of the Speaker's decisions and leaves room for potential biases
or errors to go unchecked. Without the scrutiny of an independent judicial
body, there is little recourse for aggrieved parties to challenge the Speaker's
rulings.
4. Political Pressures: Speakers may face political pressures from their own
party leadership or other influential stakeholders when adjudicating cases
under the Tenth Schedule. The fear of backlash or repercussions for ruling
against the interests of their party may compromise the Speaker's
independence and impartiality, leading to decisions that prioritize political
expediency over legal merit.
5. Perception of Bias: The perception of bias is a significant concern when the
same individual responsible for presiding over parliamentary proceedings and
maintaining order within the House is also entrusted with the authority to
adjudicate disputes involving defection. Even if the Speaker acts impartially,
the mere appearance of bias can undermine public confidence in the fairness
and integrity of the adjudicatory process.
6. Conflict of Interest: As a member of the legislature, the Speaker may have
personal or political interests that conflict with their role as an adjudicatory
authority. This conflict of interest can compromise the Speaker's ability to act
independently and impartially when deciding cases under the Tenth Schedule,
particularly when the outcome may impact the balance of power within the
House.