BEFORE THE HONÓURABLE HIGH COURT OF ANDRAPRADESH

In the Matter of

MR. Y

V.

STATE OF ANDHRA PRADESH

WRIT PETITION NO. ___/2019

ON THE SUBMISSION OF HON’BLE HIGH COURT OF ANDRA PRADESH

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

Counsel on behalf of the Respondent

RAM KUMAR YADAV

SEMESTER 2ND

SECTION ‘B’

ROLL NO. 951

1|MEMORIL ON THE BEHALF OF RESPONDENT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES …………………………………………………………….3

STATEMENT OF JURISDICTION……………………………………………………...4

STATEMENT OF FACTS………………………………………………………………..5

ISSUES RAISED…………………………………………………………………………6

SUMMARY ARGUMENTS……………………………………………………………..7

ARGUMENTS ADVANCE………………………………………………………………9

PRAYER…………………………………………………………………………………15

2|MEMORIL ON THE BEHALF OF RESPONDENT

3|MEMORIL ON THE BEHALF OF RESPONDENT
 LIST OF AUTHORITIES
 LEGISLATION

The Constitution of India, 1950

 Cases Cited

Union of India v. M.V. Vallippan

Subramanian Swami v CBI

RS Joshi v Ajit mill Ahemadabad

T.Venkata Reddy v. State of A.P.

Mahboob Shah v. Emperor

Govindaraju v. Sriramapuram

Golaknath v State of Punjab

 Books Referred:
M. P. Jain, Indian Constitutional Law (Lexis Nexis, Gurgaon, 7thedn., 2014)
V. N. Shukla, Constitution of India(Easrern Book Company,Lucknow, 12thedn., 2013)

 Online database
www.scconline.com
www.manupatra.com

4|MEMORIL ON THE BEHALF OF RESPONDENT

 STATEMENT OF JURISDICTION
The respondent humbly submitted this memorandum before the Hon’ble Court under article 2261
of The Constitution of India.

STATEMENT OF FACTS
1
226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or
person may also be exercised by any High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose of the application within a period of two weeks from
the date on which it is received or from the date on which the copy of such application is so furnished,
whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the
next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim
order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on
the Supreme court by clause ( 2 ) of Article 32

5|MEMORIL ON THE BEHALF OF RESPONDENT

India is a young federal nation in the world with unique features, which at times changes its
shape to unitary. The Preamble of the Constitution of India provides, the country is sovereign,
socialist, secular, democratic, republic, which guarantees justice, equality, liberty and fraternity
to its citizens, with universal suffrage. Free & fair election is supported. For this Election
Commission, a Constitutional body has been set up according to Article 324 of the Constitution.
The Representation of People’s Act, 1951 was legislated to deal with the qualifications of the
contestants in elections at all levels and related matters. During 1995, the EC observed that the
major threat posed to India apart from terrorism is the criminalization of politics. It was also
observed several times by the EC that hundreds of criminal groups with an average strength of
500 each is constituting the integral part of the election scenario in certain States. It has been
observed that 14,000 candidates in one general election as many as 1500 candidates had a record
of violent crimes such as murder, dacoity, rape, robbery and extortion. Sec.8 of the RPA, 1951
provides more deterrent disqualifications on convicted person’s participation in the elections. In
2005 & 2013 verdict, SC struck down Sec.8 (4) provision declaring it as unconstitutional. The
criticism from all the political parties about their right to be the members of the legislature until
they are not proved guilty by the apex court overwhelmed in the Parliament and as well as all
State Legislatures. The people of India appreciated the verdict. The President of India issued the
Parliamentary Members (Temporary restraint on Disqualification) Ordinance, 2013 which
restrains the automatic disqualification of members of legislature once they have been declared
by any court as convicted. Mr.X, the leader of YSR Hongress party, a AP local party and also the
Chief minister of AP, was not disqualified on being convicted for 5 yrs for the misuse of
position. Mr.Y filed a writ petition in the HC of AP under Art. 226, challenging the Ordinance,
2013 for its constitutionality. He also contended that it violates Art.14 of the Constitution and
suffers with colourability. He also contended that the said decision may have political
repercussions on the political system.

ISSUE RAISED

6|MEMORIL ON THE BEHALF OF RESPONDENT

  Whether the writ petition is maintainable in the High Court under Article 226?
 Whether the Ordinance 2013 Passed by the President Suffers with colourability?
 Whether the Ordinance 2013 Passed by the President is Constitutionally Valid?

SUMMARY OF ARGUMENTS

7|MEMORIL ON THE BEHALF OF RESPONDENT

  Whether the Writ petition filed by Mr. Y in the High court of Andhra Pradesh
under Article 226 is maintainable

It is humble submission of the respondent to the Hon’ble court that the writ petitions filed by Mr.
Y will not be maintainable under Article 226, as per Article 226 we can file writ petition in High
court if there will be infringement of Fundamental right, since there is no infringement of
fundamental right and NO infringement of Right to equality, as this writ petition challenging the
validity of ordinance 2013 i.e. challenging the restrains the automatic disqualification of member
of legislature once they have been declared by any court as convicted. It states that if appeal over
the conviction is admitted in the appellate court, the convicted member of legislature will not be
disqualified automatically.

As this ordinance 2013 does not violate any fundamental right and gives a logical criteria based
on which member of legislature does not got automatic disqualification after convicted by any
court.

Thus the writ petition filed by MR Y is not maintainable in High Court under Article 226.

 Whether the ordinance 2013 Passed by the President Suffers with Colourability?

It is humbly submitted before the Hon’ble High Court that the Ordinance 2013 passed by the
President does not suffers with colourability, since Doctrine of Colourable legislation says that
legislature can make laws with in its legislative competence. The legislative competence may be
limited by specific List entries, as List 1, List 2, and List3 of Article 246 schedule 7 or may be
restricted by other constitutional limitations and prohibitions. And this Doctrine also talks about
that the any law which can not be made directly, can not also be made indirectly . Here the
Parliament is competent to make law related to the law which is brought in ordinance under the
Article 246(1) schedule 7 and under Article 248. As per Article 123 which talks about ordinance
making power of President , which says that during the time of Ordinance the President have the
same legislative power which the Parliament have,and here president passed ordinance 2013 ,and
during the ordinance President have the same power as the parliament have so the President is
competent to pass the ordinance ,thus the ordinance does not suffers with colourability.

 Whether the Ordinance 2013 passed by the President is Constitutionally Valid?

8|MEMORIL ON THE BEHALF OF RESPONDENT

It is the humble submission of the respondent to the Hon’ble Court under Article 226 of the
Constitution of India that the Ordinance 2013 passed by the President is constitutionally valid.
According to Article 123, which talks about the ordinance making power of President. Article
123 says that the President have same legislative power and competence as the Parliament have,
During the ordinance. And here the parliament have competency to make law like Ordinance
2013, so the President have also competency and power to pass Ordinance 2013 , which shows
that Ordinance 2013 does not suffers with colourability and also Ordinance 2013 does not violate
any fundamental right , The Ordinance 2013 passed by the president will also support the
Principle of Natural Justice which says subsequent order of acquittal will result in complications
and that is the reason for carving out a distinct provision like Ordinance 2013

Thus we can see that Ordinance 2013 passed by the President is constitutionally valid.

ARGUMENTS ADVANCED

9|MEMORIL ON THE BEHALF OF RESPONDENT

  Whether the Writ petition filed by Mr. Y in the High court of Andhra Pradesh
under Article 226 is maintainable?

It is humble submission of the respondent to the Hon’ble court that the writ petitions filed by Mr.
Y will not be maintainable under Article 226, as per Article 226 we can file writ petition in High
court if there will be infringement of Fundamental right, since there is no infringement of
fundamental right and NO infringement of Right to equality, as this writ petition challenging
since there is no infringement of fundamental right and NO infringement of Right to equality, as
this writ petition challenging the validity of ordinance 2013 i.e. challenging the restrains the
automatic disqualification of member of legislature once they have been declared by any court as
convicted. It states that if appeal over the conviction is admitted in the appellate court, the
convicted member of legislature will not be disqualified automatically.

As this ordinance 2013 does not violate any fundamental right and gives a logical criteria based
on which member of legislature does not got automatic disqualification after convicted by any
court.

The ordinance 2013 does not infringe Article 14 i.e. Right to Equality, if we see In the case of
Union of India v. M.V. Vallippan2Supreme Court observed that, “it is settled law

that the differentiation is not always discriminatory. If there is a rational nexus on the basis of
which differentiation has been made with the object sought to be achieved by particular
provision then such differentiation is not discriminatory and does not violate the principals of art.
14 of the Constitution.

If we see, the another case Subramanian Swami v CBI,3 it was held that Differentia which is the
basis of classification must be sound and must have reasonable relation to the object of the
legislation.

Here in our case, there is no such unreasonable differentiation, as the Ordinance 2013 restrains
the automatic disqualification of member of legislature once they have been declared by any
court as convicted., if appeal over the conviction is admitted in the appellate court, the convicted
member of legislature will not be disqualified automatically.
2
(1985)3 SCC 198 AIR 1985 SC 724
3
(2014) 8 SCC 682

10 | M E M O R I L O N T H E B E H A L F O F R E S P O N D E N T
Here the Differentia has the reasonable relation to the object of Ordinance 2013 i.e. not
disqualifying automatically to the member of legislature after convicted by any court if the
appeal over the conviction is admitted in the appellate court since . In most of the cases
Appellate court grant acquittal therefore an instantaneous will leave sitting members remedies
with immense hardship. If members of legislature get acquittal in the appellate court then they
have to go through the whole election procedure again, which is not justified to do so for person
who is innocent. Thus not automatically disqualification is justified

Thus writ petition filed by Mr. Y is not maintainable.

 Whether the Ordinance 2013 Passed by president suffers with colourability?

It is humbly submitted before the Hon’ble High court the ordinance 2013 passed by President
does not suffers with colourability , as the ordinance 2013 talks about restrains the automatic
disqualification of members of legislature once they have been declared by any courts
convicted. if the appeal over the conviction is admitted in the appellate court, the convicted
member of legislature will not be disqualified automatically, As the Doctrine of colourable
legislation talks about that legislature can make laws with in its legislative competence. The
legislative competence may be limited by specific List entries, as List 1, List 2, and List3 of
Article 246 schedule 7 or may be restricted by other constitutional limitations and prohibitions.
And this Doctrine also talks about that, if the legislative body had not the power to legislate
directly then the legislature can not be legislate indirectly, or we can say that any law which can
not be made directly also can not be made indirectly .

Now if we see the legislative power to enact section 8(4) of the Representation of People’s Act is
located in Article 246(1) Schedule 7, And Article 248 of the Constitution, This provides the
Parliament the exclusive power to make laws with respect to any other matter not enumerated in
List 2 and List 3 of the seventh schedule of the Constitution.

If we see Article 102(1) and 191(1) of the Constitution it says that only Parliament have the
power to make laws regarding disqualification and not with state legislature, from here we can
see that Parliament have also the power to make law which comes in ordinance 2013 and that is
about restrains the automatic disqualification of members of legislature once they have been
declared by any courts convicted. if the appeal over the conviction is admitted in the appellate

11 | M E M O R I L O N T H E B E H A L F O F R E S P O N D E N T
court, the convicted member of legislature will not be disqualified automatically, Parliament can
make law on this . if we see the Article 123 which talks about the Ordinance making power of
President Which says that during the ordinance President have the same legislative power as the
Parliament have . Here President passed Ordinance 2013, This shows President is competence
enough or President have competency to pass the Ordinance 2013 since President have the same
legislative power as the Parliament have during the Ordinance . Thus we can say that the
Ordinance 2013 passed by the President does not suffers with colourability.

In the case of R S Joshi v Ajit mill Ahemadabad 4 The Supreme court observed that in the
jurisprudence of power colourabale exercise of or fraud on legislative power or more
frightfully ,fraud on the Constitution, are expression which merely mean that the legislature is
incompetent to enact a particular law, although the label of competency is struck on it, and then
it is colourable legislation. It is very important to \notice that if the legislature is competent to
pass particular law, the motive which impel it to pass the law are really irrelevant….if a
legislation, apparently enacted under one Entry in the List, falls in plain truth and fact, with in
the content ,not of that Entry but of one assigned to another legislature, it can be struck down as
colourable even if motive were most commendable .

Here in this scenario we can also see that the President is competent to pass the ordinance
2013 , and since president is competent to pass the ordinance 2013, so this ordinance does not
suffers with the colourabilty.

 Whether the Ordinance 2013 passed by the President is Constitutionally Valid?

It is the humble submission of the respondent to the Hon’ble Court under Article 226 of the
constitution of India that the Ordinance 2013 passed by the President is constitutionally valid .

. As per Article 123 of the Indian constitution, the President have the power to promulgate
Ordinances during recess of Parliament.

(1)If at any time, except when both the Houses of Parliament are in session, the President is
Satisfied that circumstances exist which render it necessary for him to take immediate action, he
may promulgate such Ordinance as the circumstances appear to him to require.

4
1977 AIR 2279,1978 SCR(1) 338

12 | M E M O R I L O N T H E B E H A L F O F R E S P O N D E N T
(2) An Ordinance promulgated under this article shall have the same force and effect as the Act
of Parliament but every such ordinance—

(a) shall be laid before both the Houses of Parliament and shall cease to operate at the expiration
of six weeks from the reassembly of Parliament, or, if before the expiration of that period
resolutions disapproving it are passed by both Houses, upon the passing of the second of those
resolutions, and

(b) may be withdrawn at any time by the President .

(3)If and so far as an Ordinance under this Article makes any provision which Parliament would
not under this Constitution be competent to enact, shall be void.

If we see the case T.Venkata Reddy v. State of A.P5. the Supreme Court held that since the
Ordinance making power in Article 123 and 213 is of legislative character , like the exercise of
legislative power, its exercise can not be questioned on grounds of motives or Non- application
of mind or on grounds of its prosperity, expediency and necessity.

The exercise of ordinance making power may be challenged, if it could be established that the
President has not acted bona fide. But where one house or both Houses of Parliament are
prorogued deliberately with a view to enabling the President to promulgate the ordinance, the
exercise of power by the President can not be called fradulent or mala fide.

The President by using Article 123 Ordinance making power, promulgated Ordinance 2013
which was about to restrains the automatic disqualification of members of legislature once they
have been declared by any court as convicted . it states that if appeal over the conviction is
admitted in the appellate court, the convicted member of legislature is not be disqualified
automatically.

In the present scenario members are not disqualify automatically they will get chance to prove
their innocence to the appellate court , if they will disqualify before moving to appellate court
5
( 1985) 3 SCC 198 AIR 1985 SC 724

13 | M E M O R I L O N T H E B E H A L F O F R E S P O N D E N T
then this will be unreasonable. Merely on the basis of lower court there should not be automatic
disqualification , since it may be that lower court decision is not correct , and the members can
not move to appellate court and they will get disqualify automatically then this will be not
reasonable. In most of the cases Appellate court grant acquittal therefore an instantaneous will
leave sitting members remedies with immense hardship. If members of legislature get acquittal
in the appellate court then they have to go through the whole election procedure again, which is
not justified to do so for person who is innocent. we can see the appellate courts grant acquittal
in most of the fake cases if we the case of Mahboob Shah v. Emperor 6the accussed was first
convicted of murder by trail court but later got acquittal by high court and supreme court.

If we see the another case of Govindaraju v. Sriramapuram here also the accused was first
convicted of murder by trial court but later got acquittal by High court and Supreme courts .

In both the cases we see that the trial court Judgment has been repudiated by the Supreme court,
Who has the ultimate authority to decide in this matter. So there should not be disqualification
automatically , if appeal over the conviction is admitted in the appellate court.

If we see a report , in the one year ,cases pending against MPs/ MLAs in various courts across
the country have ended up in 560 acquittals and and only 38 cases have resulted in conviction.
This information is laid before the Supreme Court by the Ministry of Law and Justice based on
response received from the 24 High Courts on the status of probe into criminal cases involving
MPs /MLAs.

So If there will be no law like Ordinance 2013 which restrains the automatically disqualification,
if the appeal over the conviction is admitted in the appellate court . then there will be alot of
innocent MPs and MLAs will be disqualified and this will not be just and reasonability.

If we see the case of Golaknath v State of Punjab 7AIR 1967 SC 1643 ,it was held that sitting
member of respective houses who may have filed an appeal for their conviction and whose
appeal are pending should not be affected by the present judgment .

The appeal over conviction is independent of judgment .

6
AIR 1945 PC 118
7
AIR 1967SC1643

14 | M E M O R I L O N T H E B E H A L F O F R E S P O N D E N T
Thus we can see that if a sitting member was Disqualified automatically then the strength of the
houses would come down and if by election were held to fill his vacant seat then a subsequent
order of acquittal will result in complications and that is the reason for carving out a distinct
provision like Ordinance 2013 .

It can be also seen that the Power to make such a law vested in the parliament by virtue of the
Article 102(1)(e) and Article 191(1)(e) , which provided as to when the conviction of a sitting
member will affect the membership and also by virtue of the fact that the Parliament had power
to legislate on any matter which is not enumerated in the List 2 and List 3 of the seventh
schedule of the constitution . From here we know that Parliament is competent to make law
regarding disqualification , so President will also be competent according to Article 123 which
talks about Ordinance making power.

So President have competency and power to pass Ordinance 2013 , which shows that Ordinance
2013 does not suffers with colourability and also Ordinance 2013 does not violate any
fundamental right , The Ordinance 2013 passed by the president will also support the Principle
of Natural Justice which says about the rule of fair hearing .

Thus we can see that Ordinance 2013 passed by the President is constitutionally valid.

PRAYER

Wherefore in the light of facts stated, issue raises, argument advances and authorities cited it is
humbly requested that this Hon’ble Court is requested to adjudge and declare that:

 The writ petition filed by Mr. Y is not maintainable.

 The ordinance 2013 is not suffers with colourability.
 The ordinance 2013 passed by the President is constitutionally valid.

15 | M E M O R I L O N T H E B E H A L F O F R E S P O N D E N T
And pass any other relief in favour of the respondent which is in inconformity to the principle of
justice, equity and good conscience.

All of which is respectfully submitted.

Counsel on the behalf of the respondent

16 | M E M O R I L O N T H E B E H A L F O F R E S P O N D E N T