IN THE HONORABLE HIGH COURT OF JUDICATURE AT MADRAS

(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)

vs

Counsel On Behalf Of The Petitioner

MEMORIAL FOR THE PETITIONER

TABLE OF CONTENTS
INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

PRAYER

MEMORIAL FOR THE PETITIONER

INDEX OF AUTHORITIES

Books Referred:
The Constitution Law of India- Dr. J.N.Pandey

The Constitution Law of India- M.P.Jain

The Constitution Law of India- P.M.Bakshi

Statues Referred:
The Constitution Of India, 1950

MEMORIAL FOR THE PETITIONER

Websites Referred:

www.prsindia.com www.indialawjoural.com www.indiakannon.com

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER

MEMORIAL FOR THE PETITIONER

STATEMENT OF JURISDICTION

Petitioner has invoked the Jurisdiction of this Honorable High Court of Madras under Article 226 for restoration of their membership.

MEMORIAL FOR THE PETITIONER

STATEMENT OF FACTS
Mr. Kumar was the Chief Minister of a State in India the Legislative Assembly of which had 100 members. He enjoyed the support of a majority consisting of 56 members of his party, one detached member of his party) and 3 independent members. In order to pull down the government of Mr. Kumar 7 members of ruling party, one detached member and three independents together expressed lack of confidence in him and approached the Governor with a joint memorandum against Chief Minister withdrawing support to him. The Speaker quickly invoked the Anti- Defection law and after giving the right of hearing for clarifying their position disqualified them from membership of the Assembly on the ground that their action of withdrawing support amount to defection under Para 2 (a) of the 10th schedule as they were expected to fulfill the aspirations of voters and implement the manifesto of the ruling party. They openly hobnobbed with the opposition. This conduct was incompatible with the continuance of their membership of the House as it was breach of loyalty and political morality. This reduced the strength of the Assembly from 100 to 89.

MEMORIAL FOR THE PETITIONER

As a consequence the government of Mr. Kumar could not be pulled down and on the direction of the Governor he won the vote of confidence with the support of 49members of his party. Aggrieved by the decision of the Speaker the disqualified members approached the High Court of their State under Art. 226 for restoration of their membership. They questioned the decision of the Speaker inspite of not being reviewable under paragraph 10 of the 10th Schedule of the Constitution of India. They challenged the said decision on various grounds namely violation of their right to honest dissent (freedom of conscience voting) implicit in their fundamental right to freedom of expression enshrined in Art. 19 (1)(a). They further stated that it makes the leader of ruling party dictatorial and members of the party his dummies. Further their case fell outside the scope of anti-defection law. The Speaker was biased as mere withdrawal of support does not lead to the inference of incurring disqualification under the aforesaid law. The rebel members of the ruling party particularly stressed the point that they did not give up party membership which was necessary to attract anti-defection law (Para 2(a) of the 10th Schedule to the Constitution).

MEMORIAL FOR THE PETITIONER

STATEMENT OF ISSUES

1. Whether the speaker can exercise his right under Anti-Defection law or not? 2. Whether the speaker act amounts to bias? 3. Whether the Article 19(1) has been violated by the speaker? 4. Whether the High Court has jurisdiction to hear the matters for disqualification of the members of the Legislative Assembly?

MEMORIAL FOR THE PETITIONER

SUMMARY OF ARGUMENTS

MEMORIAL FOR THE PETITIONER

ARGUMENTS ADVANCED
1 The 10th Schedule to the Constitution, referred to as the AntiDefection Law,' was inserted by the 52nd Amendment in 1985. Anti Defection Law provide disqualification of members from parliament and assembly in case of defection from one party to other

Under the Article 191 Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State(a) If he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder (b) If he is of unsound mind and stands so declared by a competent court;

MEMORIAL FOR THE PETITIONER

(c) If he is an undischarged insolvent; (d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; (e) If he is so disqualified by or under any law made by parliament. (2) A person shall be disqualified for being a Member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule Disqualification on ground of defection.(1) Subject to theprovisions of [paragraphs 4 & 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 up his membership of such political party;

MEMORIAL FOR THE PETITIONER (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 authorized 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. (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall.(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;

MEMORIAL FOR THE PETITIONER

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall.(i) where he was a member of a political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated in Kihoto Hollohan v. Zachillhu was whether the Xth Schedule to the Constitution of India (anti-defection laws), inserted by the 52nd Constitutional Amendment, was invalid as being violative of the basic structure of the Constitution. The contentions on behalf of the Petitioners were threefold: first, that disqualification for defection was violative of the freedom of speech, the right to dissent, and the freedom of conscience, and therefore violative of the basic structure; secondly, that it was against the principles of parliamentary democracy, insamuch as it vested the power

to adjudicate the election dispute in the Speaker, and not in an impartial, fair and independent authority; and thirdly, Para 7 of the 10th Schedule took away the power of judicial review, and thus was violative of the basic structure. On behalf of the Respondents, on the other hand, it was contended that the question of defections was a political question, and therefore beyond judicial adjudication; and furthermore, only judicial review of legislation was part of the basic structure. By way of a preliminary observation, the Court pointed out that in considering the validity of a Constitutional amendment, the changing and changed circumstances that compelled the amendment were important criteria. It went on to observe that unprincipled and unethical changes of political affiliations were themselves violative of democracy. It also advocated a model of judicial restraint, whereby judges were required to defer to a legislature reflecting the predominant and pervasive values and interests of the community. Then, while agreeing with the contention that democracy was a basic feature of the Constitution (expressly not considering the definition of democracy), and the requirement of sustaining the purity of the election process required, in turn, an effective machinery for resolving electoral disputes the Court also observed that the freedom of speech of the Member of Parliament was not absolute, that although they could voice their dissent during the debates a political party, nevertheless, functioned on the strength of shared beliefs and concerted action.

Dealing with the judicial review contention, the Court began by defining certain terms. Court was designate those Tribunals which were set up in an organized State for the administration of justice. Judicial power was defined as the power exercised by an authority to resolve a dispute concerning legal rights and obligations of parties. This power in turn

should be under Statute, and part of the States inherent power in discharging its judicial function. Referring to previous decisions, and the importance of the role of the Speaker the Court came to the conclusion that the effect of the finality clause in Section 6(2) constricted judicial review to violation of Constitutional mandate, mala fide or noncompliance with rules of natural justice. This is generally true for judicial review of administrative action, a matter dealt with by this Bulletin in previous notes. (See, especially, the Note on the CVC Judgment) Finally, the Court refused to opine on whether judicial review was part of the basic structure or not, and whether Section 7 violated that principle. Nevertheless, as Section 7, by excluding judicial review, made a change in Articles 136, 226 and 227, it had to be ratified under the proviso to Article 368(2). As this was not done, Section 7 was invalid, and severable from the rest of the Schedule. In sum, therefore, not only was Kihoto Hollohan an important case in that the Court upheld the constitutionality of the anti-defection amendment, and also held that the freedom of speech in Parliament was not absolute and was curtailed by obligations towards ones party, it is also vitally important because of the Courts restraint as far as the doctrine of the basic structure is concerned. Concerns have often been raised that the Court may use the doctrine to strike down amendment at will. In Kihoto, however, the Court accepted that the principles of the basic structure are broad concepts(democracy, federalism, secularism etc.) and not narrow conceptions. This, coupled with the principle of separation of powers, led the Court to hold that as long as the Parliaments actions werent entirely alien to the idea of democracy and could conform to a reasonable conception of it, Parliamentary prerogative would prevail, and strengthened the argument that the

basic structure doctrine must be invoked only in the rarest of circumstances.