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STATEMENT OF JURISDICTION
The Respondents, i.e. Hon’ble Speaker, Samruddi Legislative Assembly, humbly submits to
the Jurisdiction of the Hon’ble Supreme Court of India under Article 32 of the Constitution of
India in response to the petitions filed by the Petitioners. However, Respondent reserves the
right to challenge the same.
ART. 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 guarantee.
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
There was a general election to the legislative assembly of the State of Samruddi. After
the election, no party obtained a majority. Jan Rakshak could not form a government due to a
shortage of ten seats. The Kisan Bandhu and Lok Sevak, two leading political parties of the
State of Samruddi entered into coalition and formed the government.
However, there were internal disputes between the leader of Kisan Bandu and Lok
Sevak and there was also dissatisfaction about allotment of portfolios among members of the
legislative assembly of both the parties. After some time, fifteen dissatisfied members of
legislative assembly belonging to Kisan Bandu and Lok Sevak tendered resignation to their
membership to the speaker of Legislative Assembly of State of Samruddi.
The members of Kisan Bandu and Lok Sevak, who tendered resignation, have
expressed their dissatisfaction in public that they have been ignored at the time allotment of
portfolios in the coalition government and their party has also not considered their contribution
to the party. Meanwhile, both political parties issued a whip for those members who tendered
resignation to attend the session of the legislative assembly. But they failed to attend the
session.
When they failed to attend the session of the assembly, both parties, Kisan Bandu, and
Lok Sevak complained that they are acting contrary to the directions of the political party. The
members of the legislative assembly of Kisan Bandu and Lok Sevak contend that their
resignation should be accepted by the speaker of legislative assembly without further delay.
Meanwhile, the speaker takes up the matter relating to the disqualification of the
members of the legislative assembly who tendered resignation on the ground of defection under
the X Schedule of the constitution. Subsequently the speaker disqualifies all fifteen members,
Kisan Bandu and Lok Sevak, who have tendered the resignation on the ground of defection
and also disqualified them from contesting election till the completion of the term of the
assembly by expressing the view, that the evil of defection should be curbed otherwise it would
undermine the very foundation of democracy.
Now all disqualified members challenged their disqualification before the court by
contending that the speaker was biased in his decision and unconstitutional, which violated
their constitutional right to tender resignation and contest for election.
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ISSUES RAISE
ISSUE -1
WHETHER THE PETITION IS MAINTAINABLE?
ISSUE-2
WHETHER THE DECISION OF THE SPEAKER IS UNCONSTITUTIONAL?
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SUMMARY OF ARGUMENTS
ISSUE-1
WHETHER THE PETITION IS MAINTAINABLE?
It is humbly submitted before the Hon’ble Court that the writ petition filed, by the petitioner
i.e. Disqualified members of The State of Samruddi, under Art. 32 The Constitution of India is
not maintainable.
ISSUE-2
WHETHER THE DECISION OF THE SPEAKER IS CONSTITUTIONAL?
It is humbly submitted before the Hon’ble court that the order passed the Speaker is consistent
with Art. 190(3), Art. 191(2) and Tenth Schedule of the Constitution of India.
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ARGUMENTS ADVANCED
ISSUE-1
1. WHETHER THE PETITION IS MAINTAINABLE?
It is humbly submitted before the Hon’ble Court that the writ petition filed, by the
petitioner i.e. Disqualified members of The State of Samruddi, under Art. 32 The Constitution
of India is not maintainable. The petitioner does not have locus standi to invoke Art. 32 of
Constitution of India. A petition filed under Art. 32 and Art. 226 when there is a violation of
fundamental rights, it is humbly submitted that the decision of the speaker does not violate the
fundamental rights of the disqualified members. Right to contest for election doesn’t fall under
the fundamental rights rather it is enshrined under The Representation of Peoples Act, 1950.
It is humbly submitted to Hon’ble court that Art. 32 can be invoked only when there is
an in infringement of fundamental right. The Constitutional Courts, ie, the Supreme Court and
High Court are the sentinels of justice and have been vested with the extraordinary powers of
judicial review to ensure that the rights of citizen are duly protected.1 The Supreme Court in
Hindi Hitrashak Samiti2 case emphasised that, “it is well settled that, the jurisdiction conferred
on Supreme Court under Art. 32 is an important and integral part of the Indian Constitution but
violation of fundamental right is the sine qua non for seeking enforcement of those rights by
the Supreme court. In order to establish the violation of fundamental rights, the Court has to
consider the direct and inevitable consequence of the action which is sought to be remedied or
the guarantee of which is sought be enforced.” Contest an election is not a fundamental right
or even civil right, but a purely statutory right, as is the right to be elected. In democracy,
holding of elections becomes significant and the constitutional and statutory provisions take
care of it.3
Art. 32 cannot be invoked simply to adjudge the validity of any or an administrative
action unless it adversely affects petitioner’s fundamental rights.4 The court has clearly held
that if the violation of fundamental rights cannot be show, then the writ petition is not
maintainable.5 Right to contest election is not a fundamental right. It is humbly submitted that
there is no violation of fundamental rights of petitioners.
1
Manohar Lalshrama v. Principal Secretory, (2014) 2 SCC 532
2
Hindi Hitrashak Samiti v. UOI, AIR 1990 SC 851
3
Pramod Laxman Gudadhe v. Election Commission of India and Ors, Special Leave Petition no 9968/2018
4
Shantabai v. State of Maharastra, AIR 1958 SC 532
5
Bhushan Power & Steel Ltd v. Rajesh Verma, (2014)5 SCC 551
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Apart from fundamental rights, a petition can be filed under Art.32 on grounds provided in
Raja Ram Pal v. Hon. Speaker, Lok Sabh6 “An ouster clause attaching finality to the
determination does not ordinarily oust the power of court to review the decision, but on ground
of lack of jurisdiction, or it being a nullity for some reason such as gross illegality, irrationality,
violative of Constitutional mandate, mala fides, non-compliance of rules of natural justice and
perversity.” The fundamental rights and grounds provide by Supreme Court in Raja Ram Pal
v. Hon. Speaker, Lok Sabha7 a petition can also be filed under Art.226. In view of the enormous
arrears before it, the Court, however, discourage petition under Art. 32 if equally effective
remedy can be availed of in the High Courts.8 In Kihoto Hollohan v. zachillu9, court said “The
decision of the speaker or chairman of Rajya Shabha is final, but subject to judicial review
under Art. 226, 32 or Art. 136.” It submitted that the petitioner should first resort to the High
Court which, under Art. 226, exercise a concurrent jurisdiction to deal with the matter.
6
(2007) 3 SCCC 184
7
Ibid
8
P.N. Kumar v. MCD, (1987) 4 SCC 607
9
AIR 1993 SC 412
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ISSUE-2
2. WHETHER THE DECISION OF THE SPEAKER IS CONSTITUTIONAL?
The speaker is a constitutional authority and he is the presiding officer of the House
in order to maintain the discipline and ensure smooth functioning of the house. It is submitted
before the Hon’ble court that Constitution of India confers power on speaker to disqualify the
members of the assembly as provided Art. 190(3) and in the para 2&6 of Tenth Schedule. The
Statement of Objects and Reasons of the Fifty-second Amendment (1985) to the constitution
in the following words, “The evil of political defections has been a matter of national concern.
If it is not combated, it is likely to undermine the very foundations of our democracy and the
principles 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 Bill is meant for outlawing defection and fulfilling the
above assurance.” .10 Conferment of power on the Speaker to decide the question of
disqualification is not vitiated on the grounds of political bias and violation of basic structure
of the Constitution.11
In Kihoto Hollohan v Zachillhu, the court, speaking about the necessity of an anti-
defection legislation, said, “The object is to curb the evil of political defections motivated by
lure of office or other similar considerations which endanger the foundations of our democracy.
The remedy proposed to disqualify the members of either House of Parliament or of the State
Legislature who is found to have defected from continuing as a Member of the House. The
grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.”12 It was also
held that “That the Paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions
do not suffer from the vice of subverting democratic rights of elected members of the
Parliament and the Legislatures of the States. It does not violate their freedom of speech,
freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate
any rights or freedom under Articles 105 and 195 of the Constitution.” 13
Para 2 of tenth Schedule reads as, Disqualification on ground of defection —(1) Subject
to the provisions of 3 [paragraphs 4 and 5], a member of a House belonging to any political
party shall be disqualified for being a member of the House— (a) if he has voluntarily given
10
KA Mathialagam v. P Srivasam AIR 1973 Mad. 371, 376.
11
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.
12
AIR 1993 SC 412
13
Ibid
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up his membership of such political party; or (b) if he votes or abstains from voting in such
House contrary to any direction issued by the political party to which he belongs or by any
person or authority authorised by it in this behalf, without obtaining, in either case, the prior
permission of such political party, person or authority and such voting or abstention has not
been condoned by such political party, person or authority within fifteen days from the date of
such voting or abstention.14 Para 6 reads as, 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: Provided that where the question which has arisen is as to whether the
Chairman or the Speaker of a House has become subject to such The Constitution of India
(Tenth Schedule) 351 disqualification, the question shall be referred for the decision of such
member of the House as the House may elect in this behalf and his decision shall be final. (2)
All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to
disqualification of a member of a House under this Schedule shall be deemed to be proceedings
in Parliament within the meaning of article 122 or, as the case may be, proceedings in the
Legislature of a State within the meaning of article 212.15
In Kihota Holloha,16 the Supreme Court adopted the restrictive view of ‘direction’ issued by
party “the violation of which may entail disqualification”. Such direction should pertain to two
matters, viz, (1) a vote on motion of confidence or no confidence in government; (2) where the
motion under consideration relates to matter which is an integral policy and programme of
political party on the bases of which it approached the electorate. Kisan Bhandu and Lok Sevak,
both issued whip to the members who tendered resignation (still members of Legislative
Assembly) to attend the session of Legislative assembly. All the 15 members failed to attend
the legislative assembly, thus, attracting disqualification under para 2 of X Schedule.
In Rajendra Singh Rana vs Swami Prasad Maurya, the Supreme Court held that a member
of a legislative assembly incurs disqualification by his or her mere act of defiance of the
party whip, which may be subsequently declared by the Speaker.17 Hence the action of
Speaker is justifiable. In Ravi Naik v. Union of India and others, the Supreme Court says, “The
words ‘voluntarily given up his membership’ are not synonymous with ‘resignation’ and have
a wider connotation. A person may voluntarily give up his membership of a political party even
14
Para 2 of Tenth Schedule of Constitution of India.
15
Para 6 of Tenth Schedule of Constitution of India.
16
Supra 11
17
AIR 2007 SC 1305.
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though he has not rendered his resignation from the membership of that party. Even in the
absence of a formal resignation from membership an inference can be drawn from the conduct
of a member that he has voluntarily given up his membership of the political party to which he
belongs”.18 In other judgments, members who have publicly expressed opposition to their party
or support for another party were deemed to have resigned.19 Under para 2 of the Schedule X,
the act of disqualification occurs on a member voluntarily giving up his membership of a
political party or at the point or at the defiance of the whip issued to him. In this case,15
dissatisfied members has voluntarily given up the membership of political party in spite of
issuance of the whip by the political party which is expected to follow the directions of the
party.20 which is one of the basic units in our [Link] is clear that by the conduct,
actions, speeches, expressed their dissatisfaction in public and the correspondence of the
dissatisfied MLA’s, shows that they are opposing the party decision implies that their conduct
is against political party and they had voluntarily given up the membership of political party.
Democracy is basic structure of the Constitution.22 The Hon’ble speaker uphold the
provisions which are salutary and are intended to strengthen the fabric of Indian Parliamentary
democracy by curbing unprincipled and unethical political defections. Democracy proceeds on
the faith and capacity of the people to elect their representatives and faith in the representatives
to represent the people. Trust in the elected representatives is the corner stone of a democracy.23
If the evil of political defection was not contained, it would undermine the very foundations of
democracy in India and the principles which sustain it. An essential component of a
constitutional democracy is its ability to give and secure for its citizenry a representative form
of government, elected freely and fairly, and comprising of a polity whose members are men
and women of high integrity and morality. This could be said to be the hallmark of any free
and fair democracy.24 But the conduct of disqualified members tendering resignation stating
reason that, the portfolios were not allotted to them. Its shows that they are not concerned with
neither concerned with the welfare of the government nor foundations of democracy, they are
only motivated by lure of office. But these dissatisfied MLA’s negates welfare of the citizens
and against to the political morality.
18
1994 Supp. (2) S.C.C. 641.
19
[Link] Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, 1996 SCC (2) 353
20
Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council, AIR 2005 SC 69.
21
Kuldip Nayar v. Union of India., (2006) 7 SCC 1.
22
Indira Gnadhi v. Raj Narain, AIR 1975 SC 2299.
23
Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461.
24
10 | P a g e
Even after inserting the Tenth schedule (Anti Defection Law) till today defection are
taking place. Being a chief officer of assembly, it is the duty of the speaker to prevent such
activities which destabilise democracy.
The speaker decision is not violative of equality. Equality is basic structure.25 The
power of the Speaker to decide the question is absolute.26 Speaker decision is reasonable, bona
fide and legal. 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 our democracy and principles which
sustain it.27
The Apex Court in Jyoti Basu v. Debi Ghosal observed that “A right to elect,
fundamental though it is to a democracy, is, anomalously enough, neither a fundamental right
nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected”.28
In Pramod Laxman Gudadhe v. Election Commission of India and Ors29 Contest an election is
not a fundamental right or even civil right, but a purely statutory right, as is the right to be
elected. In democracy, holding of elections becomes significant and the constitutional and
statutory provisions take care of it.
Art. 190(3)(b) of the Constitution permit a member of House of State Legislature of a
state to resign his seat by writing under his hand addressed to the Speaker, it shall be
voluntary and genuine. But in this case, there have been instances where coercive measures
have been resorted to for compelling members of legislative assembly to resign their
membership. In present case the disqualified members resignation is voluntary but not
genuine. If the Speaker is satisfied that the resignation is not voluntary, or genuine from
information received and after making such inquiry as he thinks fit, he shall not accept the
resignation.30 The right to tender resignation is subject to proviso of Art. 190(3)(b). "There
can be little doubt that exposure to public gaze and scrutiny is one of the surest means of
achieving a clean and healthy administration, no democratic Government can survive without
accountability and the basic postulate of accountability”.31
25
MG Badappanavar v. State of Kerala AIR 2001 SC 260.
26
Bhajaman v. Speaker AIR 1990 Or 18 (Para 3).
27
Statement of Objects and Reasons of Constitution (52nd Amendment) Act, 1985.
28
3 S.C.R. 318
29
Special Leave Petition no 9968/2018
30
Vikram Singh v. Shri Ram Balaji Karat, AIR 1995 MP 140.
31
S.P. Gupta v. Union of India, [1982] 2 SCR 365.
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PRAYER
In light of the facts of the case, issues raised, arguments advanced and authorities
cited, the Counsels on behalf of the Respondent humbly pray before the Hon’ble Supreme
Court to kindly adjudge and declare that: -
Dismiss the Petition.
AND/OR
Pass any other order which the bench deems fit in the best interest of Justice, Equity and Good
Conscience, and for this act of kindness the Counsels on behalf of the Respondent as in duty
bound shall forever pray.
