May it please this honourable court, I am the lead counsel from the side of the

petitioner in the case concerning NGO PRAVAH CHAKRA & ors. v. Union
OF INDIANA and ors. Your lordship today I shall speak for 15 minutes and
deal with the issue 1, 2 & 3 and subsequently my co-counsel shall deal with 4
and 5 respectively.

If the lordship have no any preliminary query may the counsel proceed with the
fact of the case.

Your lordship, in this case a country named Indiana which was severely
affected during Covid19 in 2021, the second wave massively hit Indiana which
was even more dangerous and more people were getting infected and were
dying. Amid all the chaos and national crisis, general elections to elect members
of Purva Pradesh were scheduled during the peak of the second wave. But no
guidelines for preventing the Covid-19 were issued by the State of Purva
Pradesh. Thereafter, the results were announced and soon after that violence
erupted on a large scale in the state. An NGO named Pravah Chakra filed a PIL
in the Supreme Court against such violence. Regard to the massive outrage and
violence, the President of Indiana imposed President’s Rule in Purva Pradesh.
During the President’s rule, 15 members of LDP joined RHD. Another NGO
named Aryan Foundation filed a petition to postpone the election process in the
State of Vrihadh Pradesh.

Consequently, the Government of Purva Pradesh filed a petition in the Supreme

Court challenging the President’s Rule and the defection of the members of the
ruling party. Hon’ble Supreme Court of Indiana clubbed all these petitions and
decided to hear them jointly and now the matter is pending before this
honourable court.

If the lordship is well versed with the fact of the case may the counsel proceed
with the jurisdiction of the case.
Your lordship the petitioner has approached this honourable court under Article
139 A of the constitution of Indiana which empowers SC to club the cases
involving the same or substantially the same questions of law if it is pending
before the Supreme Court or HCs.

If the lordship is well versed with the jurisdiction of this case may the counsel
proceed with the Issue 1.

WHETHER THE WRIT PETITION IN THE FORM OF PUBLIC

INTEREST LITIGATION FILED BY NGO PRAVAH CHAKRA IS
MAINTAINABLE?

Your lordship petitioner submits that the instant PIL is maintainable on the four
limb of his argument, firstly that the petitioner has a bona fide interest and
hence they have a locus standi, secondly that there was violation of fundamental
rights & there exists substantial questions of law, thirdly there is no requirement
for the Petitioner to exhaust local remedies as the right under Art. 32 is not
subject to the exhaustion of local remedies and fourthly the Hon’ble Court is a
“Sentinel on the Qui Vive” to enforce FR.

Your lordship, coming to the first limb of the argument that the petitioner has a
locus standi as the term “Locus standi” means right of party to appear and be
heard on question before any court. In the case SP Gupta v. Union of India,
where Justice A.C Gupta in the 7 Judges bench observed that a writ petition
filed under Article 32 by a public-spirited person on behalf of a Section of the
society which complains of violation of fundamental rights is maintainable.

To invoke the writ jurisdiction of the Supreme Court is not necessary that
fundamental right must have been actually infringed even a threat to the same
would be sufficient as the same has observed by Justice A. K Sarkar of the 5
judges bench in the case of Roop Chand v. State of Punjab, AIR 1963 SC 1503.
In the instant case, Pravah Chakra, visited the violence affected areas on 10th
June 2021 for conducting a preliminary survey and prepare a report but were
allegedly attacked by locals which clearly states that petitioner has a bona fide
interest and also if court finds question raised to be of substantial public interest,
issue of locus standi of person placing relevant facts and materials before court
becomes irrelevant as the same has been observed in the case of T.N.
Godavarman v. UOI, AIR 2006 SC 645.

Now, coming to the second limb of the argument that there was violation of
fundamental rights and exists a Substantial Questions of Law. Your lordship in
the case of Federation of Bar Association in Karnatka v. Union of India, AIR
2000 SC 2544 where Justice KT Thomas in the 2 judges bench observed that
Violation of Fundamental Right is sine qua non of the exercise of the right
conferred by Article 32. When the petitioner establishes infringement of his FR,
the court has no discretion but to issue an appropriate writ in his favour.

In the present case, some pieces of evidence showing that such violence had
created a greater impact on economic activities, demographic balance and
communal harmony in the state and had resulted in the situation of lawlessness
which led to the internal displacement of the people, which clearly shows that
fundamental right has been infringed so this PIL must be declared maintainable.

Now, coming to the third limb of the argument that there is no requirement for
the Petitioner to exhaust local remedies as the right under Article 32 is not
subject to the exhaustion of local remedies. Your lordship in the case of
Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898 where Justice KS
Hedge in the 5 judges bench held that unlike in Art. 226, the remedy provided
by Art. 32 is a fundamental right and not merely a discretionary power of the
Court. Moreover, this Hon’ble Court has on multiple occasions expressly
rejected an argument that called for exhaustion of local remedies. Furthermore,
in ABSK Sangh (Railway) v. Union of India, the Supreme Court overruled the
objection that an unrecognized association cannot file a petition under Article
32.

In Romesh Thappar v. State of Madras where Justice Patanjali Shastri held that
one can approach directly to the Supreme Court without going to the High
Court first whenever there is violation of fundamental rights as Supreme Court
is the “guarantor and protector of Fundamental Rights”.

Now, coming to the last limb of the argument that This Hon’ble Court has
repeatedly assumed the role of the “sentinel on the qui vive” to enforce
fundamental rights of the people.

Hence, it is humbly submitted that in light of the prevailing circumstances in

Indiana, which are continuously depriving the fundamental rights of citizens of
Purva Pradesh, the Court has the constitutional duty and obligation to entertain
this petition. Also it is the duty of the Courts to examine the merits of each case
with respect to the prevailing situation, looking at the fundamental rights
violations alleged that many citizens had to leave their native place and had to
take refuge in the nearby state of Prag Pradesh to save their lives and for that
this petition must be held maintainable.

If the lordship is satisfied with the Issue 1 and have no any further query, may
the counsel proceed with the issue 2.

WHETHER THE IMPOSITION OF PRESIDENT RULE IS

CONSTITUTIONALLY VALID?

Your lordship the petitioner contends that the imposition of president rule is
constitutionally invalid on four limb of his argument, firstly The president rule
has been imposed against the interest of the public, secondly the president is not
empowered to impose emergency merely on the ground of alleged incidents,
thirdly the proclamation of emergency has not taken place on any advice by
Council of Ministers, report of the governor or on any conclusive report and,
fourthly it is a politically motivated act.

Your lordship, coming to the first limb of the argument that Article 356 has
positively given wide and unrestrictive powers to the central government to
declare its position over a state if common distress happens, and the state
government does not have the way to end it.

Before taking action under Article 356, any explanation received from the State
should be taken into account but in instant case there was no such explanation
taken from state of Purva Pradesh. In the S. R. Bommai case where Justice JS
Verma in 9 judges bench reiterated that it is well settled that Article 356 is an
extreme power and is to be used only as a last resort in cases where it is
manifest that there is an impasse and the constitutional machinery in a State has
collapsed then only this article can be invoked.

Your lordship we need to understand that in day-to-day administration of the

State, its functionaries take decisions or actions in discharge of their
multifarious responsibilities some of which may not be strictly in accordance
with all the provisions of the Constitution. In such a circumstance, it cannot be
said that every such breach or infraction of a constitutional provision,
irrespective of its significance, constitutes the situation to impose the
emergency in the state.

Now, coming to the second limb of the argument that President is not
empowered to impose emergency merely on the ground of alleged incidents. As
it is well settled principle that Article 356 to be used in extreme
situation.58Article 356 should be used extreme cases and use only as a measure
of last resort, when all available options distorted and cannot prevent or stop a
break-down of constitutional machinery in the State.
Also your lordship in the year 1993 Madhya Pradesh High Court struck down
the proclamation as being unconstitutional, saying that only an extremely
difficult situation warranted the proclamation and just a sudden outbreak of riots
did not justify President’s rule in the case of Sunderlal Patwa v. Union of India
(UOI) and ORS, AIR 1993 SC 214 as your lordship it well founded that
President’s rule generally undermined the foundation of federalism and had
toppled a democratically elected government so, this must be used in
exceptional circumstances and not in general way.

Now, coming to the third limb of the argument that Proclamation of emergency
has not taken place on any advice by Council of Minister, report of the governor
or on any conclusive report.

In the State of Rajasthan v. Union of India, the scope for judicial review of the
Presidential satisfaction was evolved on the grounds: (i) Where the order was
malafide, or (ii) Where the authority passing the order took into account
extraneous or irrelevant consideration, or (iii) Where the authority passing the
order failed to take into account relevant considerations. In the present case, the
president has invoked Article 356 on irrelevant ground as the violence erupted
in the state of Purva Pradesh was allegedly sponsored by the opposition party,
i.e Union , so the president has not relied on any conclusive proof of the outrage
caused by the government of Purva Pradesh and the order was mala fide in
nature.

The Governor's report should be a speaking document containing a precise and

clear statement of all material facts and grounds on basis of which President
may satisfy himself as to the existence or otherwise of situation contemplated in
Art 356. The power conferred by Article 356 upon the President is a conditioned
power. It is not an absolute power. The existence of material - which may
comprise of or include the report(s) of the Governor - is a pre-condition. The
satisfaction must be formed on relevant material. But in instant case, there is no
such report has been taken into consideration before imposition of the president
rule.

Now, coming to the last limb of the argument that it is a politically motivated
act. Your lordship The Court can strike down the Proclamation if it is found to
be mala fide or based on wholly irrelevant or extraneous grounds.

As Art. 356 which is safe measure only use as a last resort in a situation of
failure of state machinery but the provisions of Article 356 have been invoked
in the instant case so as to serve the ulterior intensions of the ruling party at the
centre is proved correct. Ruling party for its personal gain and interest-imposed
state emergency by proving failure or breakdown of its constitutional
machinery.

Hence it must be declared that invocation of Article 356 has been with mala fide
intention as there was no reasonable opportunity given to state to explain the
situation so, it must be declared unconstitutional in nature.

If the lordship is satisfied with the Issue 2 and have no any further query, may
the counsel proceed with the issue 3.

WHETHER THE DEFECTION OF MEMBERS OF RULING PARTY IN

STATE EMERGENCY IS CONSTITUTIONALLY VALID?

Your lordship the petitioner contends that defection of members in state of

emergency is constitutionally invalid on two limb of my argument, firstly all the
powers of the legislature during emergency has been taken away and
Constitutional Procedure has not been followed in the instant case, secondly
members cannot be disqualified under anti- defection law when legislature is
not in function and also the act of members was not in accordance with anti-
defection law.
Your lordship, coming to the first limb of the argument that all the powers of
the legislature during emergency has been taken away. Your lordship during the
President’s rule in a State under article 356(1), the Legislative Assembly may
either be dissolved or suspended and the legislature is not in function. And as
per 10th schedule the power to decide on the disqualification is vested in the
hands of the speaker of the house. This was possible as the legislation empowers
the presiding officer of the House (i.e. the Speaker) to decide on complaints of
defection under no time constraint.

So, at the same time, it must be remembered that Schedule X serves to protect
the sanctity of a political formation as well as the life of a government. In order
to safeguard this function, the principles of responsible and unified political
formations cannot be ignored. Speakers should decide Tenth Schedule
disqualifications within a “reasonable period” but in the instant this procedure
was not followed. For the sake of the argument now it is clear that all the 15
members of the LDP deliberately joined the RHD party so that LDP will not be
able to form the government this clearly shows the mala fide intention of such
members.

Also in Kihoto Hollohan v. Zachillhu and Others (1992) where Justice LM

Sharma in the 5 judges bench observed that the Speaker’s discretionary power,
it underscored that the Speaker functioned as a tribunal under the anti-defection
law, thereby making her/his decisions subject to judicial review so in this
regard, the legislature owes it to the electorate to ensure that it conducts
business in the fairest and most efficient manner so in the instant case when the
legislature is suspended by the invocation of Article 356 all the powers of the
speaker regarding to matter of defection is deemed to be suspended.

Now, coming to the second limb of the argument that the members cannot be
disqualified under anti- defection law when legislature is not in function. It is
clear that when any member changes the political party it is widely seen as a
challenge to the party and the government, violation of party discipline or
maverick bellicosity. And for that member should be easily allowed to change
the party as elections in India are seen as being conducted in order to vote
parties into power, and not individual parliamentarians, so if such chaotic
situation arises then speaker of the house has the sole authority to deal with such
situation as enshrined under 10th Schedule

As the objective of anti defection law is to control the horse-trading of

legislators and to bring stability to political parties. It checks the movement of
MPs/MLAs from one political party to another after elections and for that
ultimate evaluator in the case of disqualification under the Tenth Schedule is the
Speaker of the House. The Speaker/Presiding Officer is considered as the
guardian of the process of democratic rules in the Parliament and the State
Assemblies.

Hence, it is must be declared that defection of ruling party during emergency is

constitutionally invalid.

If the lordship has no any further query the counsel would like to call upon my
co- counsel to deal with the remaining issues. It was my pleasure to plead
before this honourable court.