Cases Utilized:

1. Dr. P. Nalla Thampy Terah v. Union of India and Ors. [1985 Suppl. SCC 189],
2. Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe, (1955) 5 SCC 347
3. Commissioner of Expenditure Tax v. P.V.G. Raju (1975) 101 ITR 465 (SC)
4. COMMISSIONER OF INCOME TAX DELHI XI VERSUS JANATA PARTY LNIND 2016 DEL 1576
5. Kapildeoram vs JK Das AIR 1954 Assam 170,

6. Swadeshi Polytex Ltd. vs Collector of Central Excise AIR 1990 SC 301, (1989) 44 ELT 794
7. Bindle Agro Chem Ltd. vs State of Madhya Pradesh (1991) JLR 79
8. Commissioner of Income Tax, Amrita vs Strawboard Mfg. Co. Ltd. (1989) 177 ITR 431 (SC)
9. Kartar Singh v. State of Punjab, AIR 1967 SC 1643
10. Harendra Nath vs Sailendra Krishnan Saha AIR 1967 Cal 185, pg. 188 a
11. State of Rajasthan vs Rao Takhat Singh 1973 Raj L W 23, per Beri J.
12. Nalinaha Bysak vs Shyam Sundar Haldar AIR 1953 SC 148
13. Govindrama vs JhimBai 1988 JLJ 235
14. Kashi Singh vs State of Bihar (1995) 2 BLJ
15. Commissioner of Income Tax, Gujarat vs Distributors Ltd. (1972) 83 ITR 377: 1972 SCJ 445 Pg. 450 as
per Hedge J.,
16. Aswini Kumar vs Arabinda Bose AIR 1952 SC 369, Pg. 377
17. Meghraj Kothari v. Delimitation Commission, (1967) 1 SCR 400 : AIR 1967 SC 669

18. Jammu and Kashmir National Panthers Party vs. Union of India & Ors
19. M. Chandramohan, S/o. Muthaiah Versus Secretary, Ministry of Parliamentary Affairs and Others [2021] 3
MLJ 657
20. LILY THOMAS VERSUS UNION OF INDIA & OTHERS LNIND 2013 SC 638
21. N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Other, [1952] S.C.R. 218 at 236
22. Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 at 696
23. S. Radhakrishnan vs. Union of India & Ors. In W.P.(C) No.1028/1990 dated 17th August, 1999
24. Anukul Chadra Pradhan v. Union of India & Ors. MANU/SC/0752/1997 : AIR 1997 SC 281
25. Mahendra Kumar Shastri vs. Union of India & Anr., (1984) 2 SCC 442
26. Manohar Lal Sharma V/s. Union of India
27. Mohammad Nawab Mohammad Islam Malik @ Nawab Malik versus The Directorate of Enforcement
(BAIL APPLICATION NO.1787 OF 2022)
Issue 1: True Democratic Society and Ors. v. Union of Eurekatia

Whether the EFB Scheme, including the Finance Act’s provisions which amended the RPA 1951 and the ITA
1961 are unconstitutional?

The counsel on behalf of Union of Eurekatia (hereinafter Respondent) most humbly submits that the Finance Act,
2024 and the subsequent amendments brought into the Representation of People Act, 1951 ( hereinafter RPA, 1951)
and the Income Tax Act, 1961(hereinafter, ITA, 1961) which paved way for the scheme of Electoral Finance Bonds
(hereinafter, EFB) be held constitutional. The EFBs were brought in to resolve the malfeasance of black money
soiling the electoral funding process, and to ensure that the villainization or victimization of donors do not occur as a
result of the confidentiality clause. That Rule 7(4) and 7(5) of the EFB scheme only allow KYC (extant guidelines
as issued by the RBE) compliant bank accounts, which include restrictions placed on Govt. companies and foreign
companies, to mitigate the malice of corporate political lobbying. The Legislature is the proverbial good writer in its
own field, it is not competent for the court to proceed on the assumption that the legislature knows not what it says,
or that it has made a mistake.

Issue 2: A.Y Bisht. v. Union of Eurekatia

Whether the constitutional amendment which introduced the freeze on delimitation is unconstitutional?
Whether the process of apportionment of seats to different states, and to reserved categories in the State,
contravenes is unconstitutional?

The counsel on behalf of Union of Eurekatia (hereinafter Respondent) most humbly submits that the Petitioner has
presented this petition before the hon’ble court on fallacious grounds. Article 82 and Article 330 of the Constitution
of India demarcate the grounds upon which the delimitation has occurred prior to the freeze in 1971 and the
representation of SC/ST candidates as per the relevant census conducted for the same. Articles 327-329 of the
Constitution also demarcates a constitutional mandate for Parliament and the Legislature of a state to enact
provisions relevant to elections to such Legislature and bars the interference of the courts in electoral matters
particularly the validity of law related to delimitation, which if read with the relevant sections of the Delimitation
Act, 2002 furthers the intent of the Legislature with regards to the same.
Issue 3: George Sebastian v. Union of Eurekatia

Whether Section 8B of the RPA 1951 is liable to be struck down as being unconstitutional? :

The counsel on behalf of Union of Eurekatia (hereinafter Respondent) most humbly submits that the Petitioner has
presented this petition before the hon’ble court on vexatious grounds. The right to elect and more importantly the
right to be elected is a statutory right, which therefore implies that the right may be constricted, restricted or in
certain circumstances rescinded by the same aforementioned statute. Article 102(e) and 191(e) of the Constitution of
India demarcate the grounds for disqualification which is inclusive of any legislation promulgated by Parliament,
thereby providing a constitutional mandate to the Legislature in enacting Laws that are practical and relevant to the
current circumstance, and with reference to the Tajio Institute for Kanoon Reforms data with regards to the recent
spate of percentage of MPs having varying degree of serious criminal cases charged against them that, the
amendment to the Representation of People Act, 1951 which introduced Section 8(b) is in furtherance of the
aforementioned perspective to negate the influence crime and corruption in Eurekatian Politics/

Issue 4: Lal Mahesh Diwan v. Union of Eurekatia:

Whether Section 62(5) of the RPA 1951 is liable to be struck down as being unconstitutional?

The counsel on behalf of Union of Eurekatia (hereinafter Respondent) most humbly submits that the Petitioner has
presented this petition before the hon’ble court on grounds which conflict with the Stare Decisis of several
pronouncements by the Supreme Court and various High Courts of Eurekatia. The right to elect otherwise
colloquially understood as the right to vote is not a fundamental or constitutional right but primarily a statutory right,
which implies that if a statute provides a certain right, it is legitimate to interpret that the same right may be
constricted, restricted or prohibited by the aforementioned statute. The statutory provision abides by the principles
imbibed in Article 14, by restricting a class of people with reasonable classification with a rational nexus to the
objects sought to be achieved, that being to protect the integrity of a free and fair election which is an essential
element of the basis structure of the Constitution.
1 The EFBs were brought in to resolve the malfeasance of black money soiling the electoral funding
process, and to ensure that the villainization or victimization of donors do not occur as a result of the
confidentiality clause

The counsel on behalf of the Union of Eurekatia (hereinafter Respondent) pleads before the Hon’ble Court that the
EFB scheme as promulgated through the amendments made to RPA, 1951 and ITA, 1961 under the Finance Act,
2024 are constitutional, valid and justifiable. True Democratic Society and Ors. (hereinafter Petitioner) has placed
this writ petition before the Hon’ble Court on erroneous grounds, among which include that the EFB scheme creates
an opaque political party funding system and hence, violated several fundamental rights.

1.1 Voluntary contributions occurring through Cash donations facilitating use of black money scrapped,
and confidentiality provided to the donor to prevent villainization/victimization

Corruption in the Electoral process as it is conducted in the State of India, is rife with corruption from the lowest
rungs of the ladder to the highest echelons of the political party. The primary source of electoral funding primarily
through voluntary contributions in particular using cash donations, referring to a study conducted by Association for
Democratic Reforms (‘ADR’), the Respondent wishes for it to be noted that:

“more than 75% of parties' sources are unknown, while donations over Rs. 20,000 comprise only 9% of parties'
funding.” Further ADR's analysis of the funding of political parties for financial years 2004-05 to 2011-12 revealed
that the total income of political parties from unknown sources was Rs. 3,674.50 crores which constituted 75.05% of
the total income of the parties.”

The aforementioned point was echoed by the Law Commission of India (‘LCI’) in its 255th Report on ‘Electoral
Reforms’ when it said:

“Money, often from illegitimate sources, results in “undisguised bullying” when it is used (both authorised
and unauthorised) to buy muscle power, weapons, or to unduly influence voters through liquor, cash, gifts.
Currency notes come first in containers, then in truckloads, moving to wholesale/small retail forms, and finally
to suitcases and in people's pockets.”

The malice of Black money soiling the electoral process is well noted by several rulings as promulgated by the
Supreme Court of India such as in the case Dr. P. Nalla Thampy Terah v. Union of India and Ors. [1985 Suppl.
SCC 189], wherein the Hon’ble Supreme Court while considering the validity of Section 77(1) of the
Representation of People’s Act, referred to the report of the Santhanam Committee on Prevention of Corruption,
which says:

“The public belief in the prevalence of corruption at high political levels has been strengthened by the manner in
which funds are collected by political parties, especially at the time of elections. Such suspicions attach not only to
the ruling party but to all parties, as often the opposition can also support private vested interests as well as
members of the Government party. It is, therefore, essential that the conduct of political parties should be regulated
in this matter by strict principles in relation to collection of funds and electioneering”

Or in the case of Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe, (1955) 5 SCC 347, The hon’ble Court
has categorically observed,

“The practice followed by the Political Parties in not maintaining accounts of receipts of sale of coupons and
donations, though is a reality, yet it is certainly not a good practice as it leaves a lot of scope for soiling the purity
of elections by money influence.”

Additionally, in complete contravention to the various laws and ECI notifications, there is widespread prevalence of
black money, bribery, and quid pro quo corruption which helps candidates in funding their campaigns. The Supreme
Court, affirming the conclusions of the 2002 report of the National Commission to Review the Working of the
Constitution (hereinafter “NCRWC”), 13 recognized this reality in PUCL v Union of India and stated:

“One of the most critical problems in the matter of electoral reforms is the hard reality that for contesting an
election one needs large amounts of money. The limits of expenditure prescribed are meaningless and almost never
adhered to. As a result, it becomes difficult for the good and the honest to enter legislatures. It also creates a high
degree of compulsion for corruption in the political arena. This has progressively polluted the entire system.
Corruption, because it erodes performance, becomes one of the leading reasons for non-performance and
compromised governance in the country. The sources of some of the election funds are believed to be unaccounted
criminal money in return for protection, unaccounted funds from business groups who expect a high return on this
investment, kickbacks or commissions on contracts etc.”

This is also particularly evident in the findings of the 2001 Consultation Paper of the NCRWC on Electoral
Reforms, which estimates that actual campaign expenditure by candidates is “in the range of about twenty to thirty
times the said limits.”

“In fact, one of the major concerns regarding expenditure and contribution regulation is that the apparently low
ceiling of candidate expenditure increases the demand for black money cash contributions and drives campaign
expenditure underground, causing parties to conceal their actual source of funds and expenditure.”

The impugned amendments made to the Representation of People Act, 1951 (hereinafter referred to as RPA, 1951),
the Income Tax Act, 1961 (hereinafter referred to as ITA, 1961) and the National Bank of Eurekatia Act, 1931
through the Finance Act, 2024 which has provided statutory backing to the Electoral Finance Bond Scheme
(‘hereinafter referred to as EFBs) are listed as below,

RPA, 1951 before amendment RPA, 1951 after amendment

29C. Declaration of donation received by the political section 29C. Declaration of donation received by the
parties. political parties.

(1) The treasurer of a political party or any other person
authorized by the political party in this behalf
shall, in each financial year, prepare a report in
respect of the following, namely;
(a) the contribution in excess of twenty
thousand rupees received by such political party
(1) The treasurer of a political party or any other
person authorized by the political party in this
behalf shall, in each financial year, prepare a
report in respect of the following, namely:
(a) the contribution in excess of twenty
thousand rupees received by such political party
from any person in that financial year;
(b) the contribution in excess of twenty
thousand rupees received by such political party
from companies other than Government companies in
that financial year.
(2) The report under subsection (1) shall be in such
form as may be prescribed.
(3) The report for a financial year under subsection(1)
shall be submitted by the treasurer of a political
party or any other person authorized by the political
party in this behalf before the due date for
furnishing a return of income of that financial
year under section 139 of the Income Tax Act, 1961
(43 of 1961), to the Election Commission.
(4) Where the treasurer of any political party or any
other person authorized by the political party in
this behalf fails to submit a report under sub-
section (3) then, notwithstanding anything contained
in the Income Tax Act, 1961 (43 of 1961), such
political party shall not be entitled to any tax relief
under that Act.
Income Tax Act, 1961 before amendment
13A. Special provision relating to incomes of
political parties Any income of a political party
which is chargeable under the head "Income
from house property" or "Income from other
sources" or any income by way of voluntary
contributions received by a political party from
any person shall not be included in the total income
of the previous year of such political party:
Provided that
(a) such political party keeps and maintains such
books of account and other documents as would
enable the Assessing Officer to properly deduce its
income therefrom;
(b) in respect of each such voluntary
contribution in excess of ten thousand rupees, such
political party keeps and maintains a record of such
contribution and the name and address of the person
from any person in that financial year;
(b) the contribution in excess of twenty
thousand rupees received by such political party
from companies other than Government
companies in that financial year.
Provided that nothing contained in this sub
section shall apply to the contributions received
by way of an electoral bond. Explanation – For
the purposes of this subsection, “electoral bond”
means a bond referred to in the Explanation to
subsection (3) of section 31 of the Reserve Bank
of India Act, 1934.
(2) The report under subsection (1) shall be in such
form as may be prescribed.
(3) The report for a financial year under subsection
(1) shall be submitted by the treasurer of a
political party or any other person authorized by the
political party in this behalf before the due date for
furnishing a return of income of that financial
year under section 139 of the Income Tax Act, 1961 (43
of 1961), to the Election Commission.
(4) Where the treasurer of any political party or any
other person authorized by the political party in
this behalf fails to submit a report under sub-
section (3) then, notwithstanding anything
contained in the Income Tax Act, 1961 (43 of 1961),
such political party shall not be entitled to any tax
relief under that Act.
Income tax Act, 1961 after amendment
13A. Special provision relating to incomes of
political parties Any income of a political party
which is chargeable under the head "Income
from house property" or "Income from other
sources" or any income by way of voluntary
contributions received by a political party from
any person shall not be included in the total income
of the previous year of such political party:
Provided that
(a) such political party keeps and maintains such
books of account and other documents as would
enable the Assessing Officer to properly deduce its
income therefrom;
(b) in respect of each such voluntary
contribution other than contribution by way of
electoral bond in excess of ten thousand rupees,
such political party keeps and maintains a record of
 who has made such contribution; and
(c) the accounts of such political party are audited by
an accountant as defined in the Explanation below sub
section (2) of section 288.
Explanation. For the purposes of this section,
"political party" means an association or body of
individual citizens of India registered with the
Election Commission of India as a political
party under paragraph 3 of the Election Symbols
(Reservation and Allotment) Order, 1968, and includes
a political party deemed to be registered with that
Commission under the proviso to sub paragraph
(2) of that paragraph.
such contribution and the name and address of
the person who has made such contribution; and
(c) the accounts of such political party are audited by
an accountant as defined in the Explanation below sub
section (2) of section 288; and
(d) no donation exceeding two thousand rupees is
received by such political party otherwise than
by an account payee cheque drawn on a bank or an
account payee bank draft or use of electronic
clearing system through a bank account or
through electoral bond.
Explanation. For the purposes of this proviso,
“electoral bond” means a bond referred to in
the Explanation to subsection (3) of section 31
of the Reserve Bank of India Act, 1934; Provided
also that such political party furnishes a return of
income for the previous year in accordance with
the provisions of subsection (4B) of section 139 on
or before the due date under that section.

It is humbly submitted by the Respondent that the Amendments made by the Legislature through the Finance Act,
2024 in the Representation of People Act, 1951, the Income Tax Act, 1961 and the National Bank of Eurekatia Act,
1934 are in furtherance of the intention of the legislature which are in particular:

1) Donor confidentiality to prevent the villianization/victimisation of donors

2) Provide a systematic approach to the electoral funding process, through which a bank audit trail will be
maintained of the voluntary contributions received by Political parties through EFBs

Infact, the respondent also wishes to point out that as per the Moot proposition, since the introduction of the EFBs,
as per EDP’s annual audit reports submitted to the ECE, more than 60% of the total voluntary monetary
contributions received by the ruling party were through EFBs, which the respondent considers a positive sign as,

1) It mitigates the voluntary cash contributions issue by providing an alternative for donors under a structured
scheme, through a bank audit trial and also provides for donor confidentiality.

2) The donor bank accounts must be in accordance and compliance with the extant guidelines of the RBI with
regards to the KYC process and the National Bank of Eurekatia stores the information of donor identity and funding
details in its database.

3) That the aforementioned information of the donor identity and funding details will be made available in the event
that a competent court may demand for it or if any law enforcement agency presses charges, as per Rule 7(4) and
Rule 7(5) of the EFB scheme.
2. Income received by political parties not considered income as per Section 2(24) of the Income tax Act, and
voluntary contributions received by political parties exempt from taxable income restricted to certain
guidelines as per Section 13A

A perusal of Section 2(24)(iia) provides the following definition of Income and in particular the types of voluntary
contributions which are considered income, it states the following,

“Section 2(24) "income" includes—

(iia) voluntary contributions received by a trust created wholly or partly for charitable or religious purposes or by
an institution established wholly or partly for such purposes or by an association or institution referred to in clause
(21) or clause (23)15, or by a fund or trust or institution referred to in sub-clause (iv) or sub-clause (v) or by any
university or other educational institution referred to in sub-clause (iiiad) or sub-clause (vi) or by any hospital or
other institution referred to in sub-clause (iiiae) or sub-clause (via) of clause (23C) of section 10 or by an electoral
trust.”

The section was promulgated through an amendment made in the Finance Bill of 1972 wherein the legislative intent
is categorically clear as per the Instruction No. 1988 dated 19th October 2000 issued by the Central Board of Direct
Taxes (hereinafter referred to as CBDT) which clarified that income of political parties from voluntary contributions
cannot be said to be ‘income from other sources’ with reference to the heads of account maintenance as per Section
14 of the Income Tax Act, 1961 which states as follows,

“14. Save as otherwise provided by this Act, all income shall, for the purposes of charge of income-tax and
computation of total income, be classified under the following heads of income :—

A.—Salaries.

B.—[***]

C.—Income from house property.

D.—Profits and gains of business or profession.

E.—Capital gains.

F.—Income from other sources.”

Even if one were to assume that subject to the non-fulfilment of the procedural requirements under Section 13A. that
voluntary contributions to political parties should be considered as Income and therefore taxable as per the Income
Tax Act, 1961, as per Section 14 of the ITA 1961, there is no clear cut demarcation which states in which category
or head of income it should fall within.

A distinction was also drawn between the expression ‘income by way of voluntary contributions received’
occurring in Section 13A of the Act and ‘any voluntary contribution received by an electoral Trust’ occurring in
Section 13B of the Act.

The decision in Commissioner of Expenditure Tax v. P.V.G. Raju (1975) 101 ITR 465 (SC) which confirms the
implementation of the Judicial mind on the Legislation as aforementioned where it was held:

“When a person gives money to another without any material return, he donates that sum. An act by which
the owner of a thing voluntarily transfers the title and possession of the same from himself to another, without
any consideration, is a donation. A gift or gratuitous payment is, in simple English, a donation”

In order to understand this, the purpose of inserting Section 13A of the Act has to be examined. Section 13A of
the Act was introduced by the Taxation Laws (Amendment) Act, 1978 with effect from 1st April 1979. Section 13A
as it stood during the period relevant to the AY in question reads thus:

“13A. Special provision relating to incomes of political parties.- Any income of a political party which is
chargeable under the head “Income from house property” or “Income from other sources” or any income by
way of voluntary contributions received by a political party from any person shall not be included in the total
income of the previous year of such political party:

Provided that—

(a) such political party keeps and maintains such books of account and other documents as would
enable the Assessing Officer to properly deduce its income therefrom;

(b) in respect of each such voluntary contribution in excess of ten thousand rupees, such political party
keeps and maintains a record of such contribution and the name and address of the person who
has made such contribution; and

(c) the accounts of such political party are audited by an accountant as defined in the Explanation
below sub-section (2) of section 288.

Explanation.—For the purposes of this section, “political party” means an association or body of
individual citizens of India registered with the Election Commission of India as a political party under
paragraph 3 of the Election Symbols (Reservation and Allotment) Order, 1968, and includes a political party
deemed to be registered with that Commission under the proviso to sub-paragraph (2) of that paragraph.”
 The statement of objects and reasons accompanying the Taxation Laws (Amendment) Bill, 1978 that introduced
the above amendment reads as under:

“Political parties are essential in any democratic set-up. The taxation of their income, however, reduces
their disposable funds thereby adversely affecting their capacity to finance their activities from legitimate
sources of income. It is, therefore, proposed to provide for exemption from income tax in respect of specified
categories of income derived by political parties, namely income from investments both in movable and
immovable properties and income by way of voluntary contributions

The ICAI issued a 'Guidance Note on Accounting and Auditing of Political Parties' in February 2012. The covering
note of the President, ICAI states inter alia:

"Political Parties are one of the core organisations for functioning of a democracy. In this dynamic scenario, where
the sources of funding of the Political Parties are diversified, the objectives of accountability and transparency
seem to be of great importance. Transparent accounting and financial reporting are also central to the fulfilment of
new age governance, The introduction of acceptable accounting practices and disclosure norms are not just
technical practices but the foundations for the integrity and maturity of the Political Parties. Political Parties
would, therefore, need to reflect their 'financial position' and 'financial performance' which should indicate their
ability to achieve their developmental goals, meet their programme targets, their efficiency in the use of resources.”

The covering note of the President ICAI acknowledges that "the present system of accounting and financial
reporting followed by political parties in India does not adequately meet the accountability concerns of the
stakeholders

In the case of Kapildeoram vs JK Das AIR 1954 Assam 170, the hon’ble court with reference to Helvering North
West Steel Rolling Mills Re 85 L Ed 29, 33, Per Bakck J, made the following regards to the manner in which
Taxation Laws are to be interpreted, the court stated as follows,

“Taxation laws are not in the nature of Penal Laws, they are substantially remedial in their character and are
intended to prevent fraud, suppress public wrong and promote the public good. They should, therefore be construed
in such a way as to accomplish those goals”

In the case of Swadeshi Polytex Ltd. vs Collector of Central Excise AIR 1990 SC 301, (1989) 44 ELT 794, the
hon’ble Supreme Court held that,
“It is true that when in a fiscal provision, if the benefit of exemption is to be considered this should be strictly
considered. However, the strictness of the construction of exemption notification does not mean that the full effect of
the exemption notification should not be given by any circuitous process of interpretation. After all exemption
notifications are meant to be implemented”

In the case of Bindle Agro Chem Ltd. vs State of Madhya Pradesh (1991) JLR 79 and Commissioner of Income Tax,
Amrita vs Strawboard Mfg. Co. Ltd. (1989) 177 ITR 431 (SC), the hon’ble court made similar observations with
regards to how exemption notifications in fiscal provisions are to be implemented, the hon’ble court states as
follows,

“Where an exemption is conferred by a statute by an exemption clause, that clause has to be interpreted liberally
and in favor of the assessee but must always be without any violence to the language used”

3. Legislature is the proverbial good writer in its field.

Separations of powers is an essential element of any democratic setup, the formation of the Legislature, Executive
and the Judiciary and its separation of powers is constitutionally mandated through various Articles of the
Constitution of India.

The Constitution of India expressly provides for a system of checks and balances amongst the Legislature, Executive
and Judiciary in order to prevent the arbitrary or capricious use of power derived from the said supreme document

The aforementioned statements are lent further credence, with the celebrated landmark judgement of Kartar Singh v.
State of Punjab, AIR 1967 SC 1643 and wherein the hon’ble court states that,

“As per the Indian constitution, the legal sovereign power has been distributed among the legislature to make the
law, the executive to implement it and the judiciary to interpret it within the limits set down by the Constitution.
Thus, all the three organs are subject to the supreme authority i.e. the Indian Constitution.”

In the case of Harendra Nath vs Sailendra Krishnan Saha AIR 1967 Cal 185, pg. 188 and the State of Rajasthan vs
Rao Takhat Singh 1973 Raj L W 23, per Beri J., the hon’ble court states the following,

“The Legislature is a proverbial good writer in its own field, no matter that august body is subject to periodic
criticism, it is not competent for the court to proceed on the assumption that the Legislature knows not what it says,
or that it has made a mistake”

In the case of Nalinaha Bysak vs Shyam Sundar Haldar AIR 1953 SC 148, the hon’ble Supreme Court states the
following,

“The Legislature is presumed not to have made a mistake even if there is some defect in the language used by the
Legislature, it is not for the court to add to or amend the language, or by construction make up deficiencies which
are left in the Act. Even where there is a Casus Omissus, the remedy lies not with the court, but with the
Legislature”

3.1 Legislature does not waste words

The principal generally followed by the Legislature is to ensure that an Act construed as to avoid redundancy or
sursplage. A court should in general circumstances not be prompt to ascribe , and should not without necessity or
sound reason impute to the language of statute tautology or superfluity.

A construction which would render the provision nugatory ought to be avoided, any word, sentence, or explanation
should be provided a proper interpretation to the enactment, unless the provision prima facie is viewed by the court
as absurd or inequitable.

In the cases of Govindrama vs JhimBai 1988 JLJ 235 and Kashi Singh vs State of Bihar (1995) 2 BLJ 362, the
hon’ble court has made the following observation,

“The Legislature is deemed not to waste its words or to say anything in vain”

In the case of Commissioner of Income Tax, Gujarat vs Distributors Ltd. (1972) 83 ITR 377: 1972 SCJ 445 Pg. 450
as per Hedge J., the hon’ble court has stated the following with regards to how a statute is to be interpreted by the
court through the lens of the intention of the Legislature, it observes the following,

“No part of a statute can be just ignored by saying that the legislature enacted the same not knowing what it was
saying. We must assume that the Legislature deliberately used that expression and it intended to convey some
meaning thereby”

Law should be interpreted so as not to make any word redundant, if it is possible to interpret it so as to utilize the
meanings of all words used in the Legislation, the same was iterated in the case of Aswini Kumar vs Arabinda Bose
AIR 1952 SC 369, Pg. 377
It is a standard principle of Law that the Legislature must be presumed to know the course of the Legislation, as well
as the course of the Judicial decisions in the country, a fortiori of the superior courts of the country and so on.

It is equally presumed that the Legislature is aware of the general principles of Law and did not intent to overthrow a
fundamental legal principle in the absence of a contrary intention expressed in unmistakable terms.

It is a sound inference to be drawn as a matter of construction that the Legislature is aware of the practice of
inquiries ( and investigations) and its incidents and about treating the reports therein as confidential,
Sutherland in fact opined that,

“The legislature language will be interpreted on the assumption that the legislature was aware of existing statues,
the rules of statutory construction and the Judicial decisions and that if a change occurs in Legislative language a
change was also intended in Legislative result”

Issue 2: A.Y Bisht vs Union of India

Whether the constitutional amendment which introduced the freeze on delimitation is unconstitutional?

Whether the process of apportionment of seats to different states, and to reserved categories in the State,
contravenes is unconstitutional?

1. Bar of interference by the court with regards to electoral matters as per Article 329 of the Indian
Constitution

Article 82 of the Indian Constitution sets out the procedural requirements for Readjustment after each census with
regards to the allocation of seats in the House of People to the States. It reads as below,

“ 82. Readjustment after each census.—Upon the completion of each census, the allocation of seats in the House of
the People to the States and the division of each State into territorial constituencies shall be readjusted by such
authority and in such manner as Parliament may by law determine:

Provided that such readjustment shall not affect representation in the House of the People until the dissolution of
the then existing House: Provided further that such readjustment shall take effect from such date as the President
may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis
of the territorial constituencies existing before such readjustment:

Provided also that until the relevant figures for the first census taken after the year 5 [2026] have been published, it
shall not be necessary to 6 [readjust—
(i) the allocation of seats in the House of the People to the States as readjusted on the basis of the 1971 census; and

(ii) the division of each State into territorial constituencies as may be readjusted on the basis of the 7 [2001] census,
under this article.] “

The same provisionary measure for the State Legislature is found in Article 170 of the Indian Constitution, where in
particular Article 170(3) reads as follows,

“170. Composition of the Legislative Assemblies.—

(3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each State and the
division of each State into territorial constituencies shall be readjusted by such authority and in such manner as
Parliament may by law determine:

Article 327 and 328 of the Indian Constitution demarcate the Statutory authority of Parliament and State Legislature
in enacting provisions as it pertains to elections to either Legislature, it reads as follows,

“327. Power of Parliament to make provision with respect to elections to Legislatures.—Subject to the provisions of
this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or
in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a
State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary
for securing the due constitution of such House or Houses.

328. Power of Legislature of a State to make provision with respect to elections to such Legislature.—Subject to the
provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of
a State may from time to time by law make provision with respect to all matters relating to, or in connection with,
the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls
and all other matters necessary for securing the due constitution of such House or Houses. “

Article 329 of the Indian constitution categorically states that, notwithstanding anything in the Constitution, there is
bar of interference by the courts in electoral matters particularly
a) The validity of any law related to delimitation of constituencies
b) Allotment of seats to such constituencies made under Articles 327, 287
c) No election being called into question except by an election petition presented to such authority

It reads as follows,

“329. Bar to interference by courts in electoral matters.—3 [Notwithstanding anything in this Constitution 4***—]

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such
constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in
any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be
called in question except by an election petition presented to such authority and in such manner as may be provided
for by or under any law made by the appropriate Legislature. “

The Delimitation Act of 2002 which repealed its preceding Delimitation Commission Act, 1962, was passed by the
Legislature and received the assent of the president, subsequent to the Amendment in 2001 which postponed the
delimitation exercise to 2026, it contains several provisions which lend further credence to the aforementioned
articles of the Constitution of India, such as the the Duties of the Commissions as enumerated in Section 4 of the
Delimitation Act, 2002.

“4. Duties of the Commission.—

(1) The readjustment made, on the basis of the census figures as ascertained at the census held in the year 1971 by
the Delimitation Commission constituted under section 3 of the Delimitation Act, 1972 (76 of 1972), of the
allocation of seats in the House of the People to the several States and the total number of seats in the Legislative
Assembly of each State shall be deemed to be the readjustment made by the Commission for the purposes of this Act.

(2) Subject to the provisions of sub-section (1) and any other law for the time being in force, the Commission shall
readjust the division of each State into territorial constituencies for the purpose of elections to the House of the
People and to the State Legislative Assembly on the basis of the census figures as ascertained at the census held in
the year 1 [2001]: Provided that where on such readjustment only one seat is allocated in the House of the People
to a State, the whole

Provided that the total number of seats assigned to the Legislative Assembly of any State under clause (b) shall be
an integral multiple of the number of seats in the House of the People allocated to that State under clause (a).

The provisionary measure for the readjustment of seats as per Article 330 of the Indian Constitution, is to be
undertaken by the Delimitation Commission as per Section 8 of the Delimitation Act, 2002,

8. Readjustment of number of seats.—The Commission shall, having regard to the provisions of articles 81, 170,
330 and 332, and also, in relation to the Union territories, except National Capital Territory of Delhi, sections 3
and 39 of the Government of Union Territories Act, 1963 (20 of 1963) and in relation to the National Capital
Territory of Delhi sub-clause (b) of clause (2) of article 239AA, by order, determine,—

(a) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions
of section 4, the number of seats in the House of the People to be allocated to each State and determine on the basis
of the census figures as ascertained at the census held in the year 1 [2001] the number of seats, if any, to be
reserved for the Scheduled Castes and for the Scheduled Tribes of the State; and

(b) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions
of section 4, the total number of seats to be assigned to the Legislative Assembly of each State and determine on the
basis of the census figures as ascertained at the census held in the year 1 [2001] the number of seats, if any, to be
reserved for the Scheduled Castes and for the Scheduled Tribes of the State:

Section 9 of the Delimitation Act, sets out the procedural requirement through which the Delimitation Commission
is to conduct the delimitation of constituencies,
“9. Delimitation of constituencies.—

(1) The Commission shall, in the manner herein provided, then, distribute the seats in the House of the People
allocated to each State and the seats assigned to the Legislative Assembly of each State as readjusted on the basis of
1971 census to single-member territorial constituencies and delimit them on the basis of the census figures as
ascertained, at the census held in the year 1 [2001], having regard to the provisions of the Constitution, the
provisions of the Act specified in section 8 and the following provisions, namely:—

(a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard
shall be had to physical features, existing boundaries of administrative units, facilities of communication and public
convenience;

(b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;

(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the
State and located, as far as practicable, in those areas where the proportion of their population to the total is
comparatively large; and

(d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in
areas where the proportion of their population to the total is the largest.

(2) The Commission shall—

(a) publish its proposals for the delimitation of constituencies, together with the dissenting proposals, if any, of any
associate member who desires publication thereof, in the Gazette of India and in the Official Gazettes of all the
States concerned and also in such other manner as it thinks fit;

(b) specify a date on or after which the proposals shall be further considered by it;

(c) consider all objections and suggestions which may have been received by it before the date so specified, and for
the purpose of such consideration, hold one or more public sittings at such place or places in each State as it thinks
fit; and

(d) thereafter by one or more orders determine—

(i) the delimitation of parliamentary constituencies; and
(ii) the delimitation of assembly constituencies, of each State”

Section 10 of the Delimitation Act, 2002 is an enacted provision in furtherance of the power and duties of the
Legislature as assigned to it as per Articles 327-329 of the Indian Constitution, in particular Section 10(4) of the
Delimitation Act, 2002 states as follows,

10. Publication of orders and their date of operation.—

(4) Subject to the provisions of sub-section (5), the readjustment of representation of the several territorial
constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those
constituencies provided for in any such order shall apply in relation to every election to the House or to the
Assembly, as the case may be, held after the publication in the Gazette of India of that order and shall so apply in
supersession of the provisions relating to such representation and delimitation contained in any other law for the
time being in force or any order or notification issued under such law in so far as such representation and
delimitation are inconsistent with the provisions of this Act. “

In the case of Meghraj Kothari v. Delimitation Commission, (1967) 1 SCR 400 : AIR 1967 SC 669, the hon’ble
Supreme Court stated that once the publication of the order in the Gazette of India is to be treated as law under
Article 327 , Article 329 would preclude the court from conducting any investigation, the hon’ble court states as
follows,

“16. In this case we are not faced with that difficulty because the Constitution itself provides under Article 329(a)
that any law relating to the delimitation of constituencies etc. made or purporting to be made under Article 327
shall not be called in question in any court. Therefore an order under Section 8 or 9 and published under Section
10(1) would not be saved merely because of the use of the expression “shall not be called in question in any court”.
But if by the publication of the order in the Gazette of India it is to be treated as law made under Article 327, Article
329 would prevent any investigation by any court of law.”

The hon’ble court also mentions in the aforementioned case that unless the powers provided and the work
contributed by the Delimitation Commission be treated as Law under Article 327 of the Constitution after the
relevant procedural guidelines under the Delimitation Commission Act, 1962 (Now repealed by Delimitation Act,
2002) are fulfilled, it would make the commission wholly nugatory, the hon’ble court states as follows,

“32. In this case the powers given by the Delimitation Commission Act and the work of the Commission would be
wholly nugatory unless the Commission as a result of its deliberations and public sittings were in a position to
readjust the number of seats in the House of the People or the total number of seats to be assigned to the Legislative
Assembly with reservation for the Scheduled Castes and Scheduled Tribes and the delimitation of constituencies. It
was the will of Parliament that the Commission could by order publish its proposals which were to be given effect to
in the subsequent election and as such its order as published in the notification of the Gazette of India or the
Gazette of the State was to be treated as law on the subject.”

The Madras High Court in the case of M. Chandramohan vs. The Secretary & Ors. (supra), also took into
consideration the aforesaid provisions of the Constitution and the Delimitation Act and found that the claim of the
Petitioners to tinker with the reservation of seats for the Scheduled Castes and Scheduled Tribes, could not be
permitted. After referring to the aforesaid provisions of the , Constitution and the , Delimitation Act, as also the ,
Constitution Bench Judgement of the Supreme Court in the case of Meghraj Kothari vs. Delimitation Commission &
Ors (supra), it was held as follows:
“16. The constituencies reserved for the Scheduled Caste and Scheduled Tribe will remain reserved till the next
Delimitation exercise which is due to be taken up after the first census to be taken after the year 2026, as evident
from the reply dated 07.09.2018 filed by the Election Commission. In view of the above provisions and delimitation
done pursuant to the Delimitation Act, 2002 , the reserved seat would remain as reserved seat till the next
delimitation exercise.”

In the case of Jammu and Kashmir National Panthers Party vs. Union of India & Ors. (supra) the Supreme Court, in
the context of the State of Jammu and Kashmir, dealt with a specific question as to whether the Government was
justified in postponing the delimitation of territorial constituencies of the Legislative Assemblies until the relevant
figures had been published after the first census taken after the year 2026. A specific contention was raised before
the Supreme Court that without an exercise in delimitation immediately upon completion of census operation, the
election would not reflect the true voice of democracy and that the popular view would be gagged, thereby showing
that it would not find a proper representation

While dealing with the said contention and referring to the pari materia provisions in the Constitution of the Jammu
and Kashmir, the Supreme Court repulsed the said argument and held that

“there is an express Constitutional bar to any challenge to the Delimitation law and that, therefore, such a
challenge on behalf of the Appellant before the Court could not be entertained by any Court, including the Supreme
Court. In this context , Section 10(2) of the Delimitation Act, 2002 , is also relevant because it specifically provides
that every order of the Delimitation Commission published in the Gazette of India shall have the force of law and
shall not be called in question in any Court.”

2. Apportionment of seats allocated to a state for SC/ST population of the state

supported by Constitutional and statutory measure enacted by the Legislature

THE INDIAN social system has for centuries perpetrated social and economic injustices by the so-called higher
castes on the lower castes who have been systematically denied equal chance in the opportunities and facilities of
the larger society.

Reservation and the apportionment of seats on the basis of positive discrimination, in particular for the minority
communities habituated in India that have persistently suffered from persecution as a result of their social status is
something the forefathers and the members of the constituent assembly envisioned as they promulgated the
Constituion of India. The need for reservation in the Political spectrum is a requirement for the maintenance of the
democratic, socialist and secular fabric enshrined within the basic structure of the Constitution.

In furtherance of this intention, the constituent assembly promulgated Article 330 and Article 332 of the Indian
Constitution, which states as follows,

330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People.—

(1) Seats shall be reserved in the House of the People for —

(a) the Scheduled Castes; 2 [
(b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and]
(c) the Scheduled Tribes in the autonomous districts of Assam.

(2) The number of seats reserved in any State 3 [or Union territory] for the Scheduled Castes or the Scheduled
Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to
that State 2 [or Union territory] in the House of the People as the population of the Scheduled Castes in the State 2
[or Union territory] or of the Scheduled Tribes in the State 2 [or Union territory] or part of the State or Union
territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State 2
[or Union territory]. 4

[(3) Notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for
the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that
State a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bears to the
total population of the State.] 5
[Explanation.—In this article and in article 332, the expression “population” means the population as ascertained
at the last preceding census of which
the relevant figures have been published: Provided that the reference in this Explanation to the last preceding
census of which the relevant figures have been published shall, until the relevant figures for the first census taken
after the year 6 [2026] have been published, be construed as a reference to the 7 [2001] census.]

332. Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States.—
(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, 8 [except the Scheduled Tribes in the
autonomous districts of Assam], in the Legislative Assembly of every State 1***.

(2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam.

(3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of
any State under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the
Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the
State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State. “

The constituent assembly had also kept in mind that after a certain point, the need for positive discrimination that is
in particular reservation for the minority communities such as the SC/ST may potentially lead to a negative inverse
effect and Article 334 of the Indian constitution specifies that there will be a cessation of the operation of Article
330 and Article 332 from the commencement of the Constitution after a certain period, it reads as follows,

“334. 3 [Reservation of seats and special representation to cease after certain period].— Notwithstanding anything
in the foregoing provisions of this Part, the provisions of this Constitution relating to—

(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the
Legislative Assemblies of the States; and

(b) the representation of the Anglo-Indian community in the House of the People and in the Legislative Assemblies
of the States by nomination, shall cease to have effect on the expiration of a period of 4 [eighty years in respect of
clause (a) and seventy years in respect of clause (b)] from the commencement of this Constitution: Provided that
nothing in this article shall affect any representation in the House of the People or in the Legislative Assembly of a
State until the dissolution of the then existing House or Assembly, as the case may be”

THE CONSTITUTION (ONE HUNDRED AND FOURTH AMENDMENT) ACT, 2019. Amended the timeframe
of the Article 334 by extending it to 10 more additional years as various members of the Legislature believed that in
spite of the tremendous progress the SC/ST communities have made since the commencement of the Constitution,
the journey towards equal political representation still remains, the amended Article reads as follows,

“2. In article 334 of the Constitution,—

(a) for the marginal heading, the following marginal heading shall be substituted, namely:— “Reservation of seats
and special representation to cease after certain period”;

(b) in the long line, after clauses (a) and (b), for the words "seventy years", the words "eighty years in respect of
clause (a) and seventy years in respect of clause (b)" shall be substituted.”
The Law minister at the time also weighed in on the decision to extend the time frame, by making the following
observations,

“Although the Scheduled Castes and the Scheduled Tribes have made considerable progress in the last 70 years, the
reasons which weighed with the Constituent Assembly in making provisions with regard to the aforesaid reservation
of seats have not yet ceased to exist. Therefore, with a view to retaining the inclusive character as envisioned by the
founding fathers of the Constitution, it is proposed to continue the reservation of seats for the Scheduled Castes and
the Scheduled Tribes for another ten years i.e. up to 25th January, 2030”

Therefore it becomes abundantly clear, the necessity, and requirement of equitable representation in Parliament for
the Minority communities in particular the SC/ST community through positive discrimination.

The Judicial system has constantly reiterated its stance on the matter of reservation through various judgements, on
the need, importance and maintenance of representation of the Minority communities in particular of the SC/ST
community, in the case of M. Chandramohan, S/o. Muthaiah Versus Secretary, Ministry of Parliamentary Affairs
and Others [2021] 3 MLJ 657, The Madras High Court states the following,

“18. From the above, it is clear that based on the Scheduled Caste population only the reserved constituency is
decided. When the highest percentage of Scheduled Caste (SC) population is available in the constituency,
opportunity should be given to the Scheduled Caste (SC) candidates to get selected as Member of Legislative
Assembly or Member of Parliament from those constituencies, where they have got more population. It is a
disgusting fact that Scheduled Caste (SC) candidates are mostly not successful if they are fielded as candidates in
the general constituency. Though the political parties do lip service claiming themselves as the guardians of
Scheduled Caste (SC), they lack moral courage to put up Scheduled Caste (SC) candidates in the general
constituency. Unless even in the general constituencies Scheduled Caste (SC) candidates are put up as candidates of
political parties and win the election, reservation of constituencies for Scheduled Castes (SC) should continue.

19. The very purpose of reserving Scheduled Caste (SC) seat in Assembly or Parliament is to ensure that a
considerable number of scheduled caste candidates are elected as Members of Legislative Assembly and Members
of Parliament to represent, as they lack opportunities to get elected.”

Another substantial observation made by the hon’ble Supreme Court in the case of Meghraj Kothari v. Delimitation
Commission, (1967) 1 SCR 400 : AIR 1967 SC 669 with regards to the nature, scope and authority of the
delimitation commission as per the Delimitation Commission Act, 1962 (Repealed for Delimitation Act, 2002), is
that the orders made by the delimitation commission with regards to Section 8 and Section 9 to proceed with the
constitutional mandate under Article 82, 170 and 172 shall also be applicable to matters related to reservation for the
minority communities in particular the SC/ST community, under Articles 330 and 332 of the Indian Constitution,
the hon’ble court states the following,

“An examination of Section 8 and Section 9 of the Act shows that the matters therein dealt with were not to be
subject to the scrutiny of any court of law. Section 8, which deals with the readjustment of the number of seats,
shows that the Commission must proceed on the basis of the latest census figures and by order determine having
regard to the provisions of Articles 81 , 170 , 330 and 332 , the number of seats in the House of the People to be
allocated to each State and the number of seats, if any, to be reserved for the Scheduled Castes and for the
Scheduled Tribes of the State. Similarly, it was the duty of the Commission under Section 9 to distribute the seats in
the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to
single member territorial constituencies and delimit them on the basis of the latest census figures having regard to
the provisions of the , Constitution and to the factors enumerated in clauses (a) to (d) of sub- section (1). Sub-
section, (2) of Section 9 shows that the work done under sub-section (1) was not to be final, but that the Commission
(a) had to publish its proposals under sub-section (1) together with the dissenting proposals, if any, of an associate
member, (b) to specify a date after which the proposals could be further considered by it, (c) to consider, all
objections and suggestions which may have been received before the date so specified, and for the purpose of such
consideration, to hold public sittings at such place or places as it thought fit. It is only then that the Commission
could, by one or more order, determine the delimitation of Parliamentary constituencies as also of Assembly
constituencies of each State.”

Therefore matters that fall within the purview of the delimitation commission as per Article 82, 170, 172, 327, 328,,
330 and 332 of the Constitution of India and the various provisions enacted in the Delimitation Act, 2002 are
matters which are not subject to judicial scrutiny as per Article 329 of the Indian Constitution which bars the
interference of courts with matters related to delimitation

Issue 3: George Sebastian v. Union of Eurekatia

Whether Section 8B of the RPA 1951 is liable to be struck down as being unconstitutional?

The right to elect and more importantly the right to be elected is a statutory right, which therefore implies that the
right may be constricted, restricted or in certain circumstances rescinded by the same aforementioned statute, and
that the promulgation of Section 8B in the RPA, 1951 is in furtherance of the Legislature in combating the malice of
crime and corruption in Eurekatia Politics.

Within the framework of the Indian Polity, the right to elect and the right to be elected is an essential characteristic
of a democratic set-up. In particular, the necessity of candidates who are of high moral character, standards and
value systems will inevitably foster growth and development in an eclectic range of endeavours and pursuits to
strengthen and further the progress of the State of Eurekatia as a whole.
The Constitution of India through its various articles, provides for the nature, scope and characteristics of the
composition of the house of people and the council of states as well as the qualifications and more importantly the
disqualifications of certain candidates of their right to be elected as a member of the aforementioned house of the
people and the council of the states. In particular, Articles 102(1)(e) and 191(1)(e) of the Constitution of India
demarcate the grounds upon which disqualification of membership to either the House of the People or the
Legislative Assembly must take place, it states as follows,

“102. Disqualifications for membership.—

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an
office declared by Parliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(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
acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

[Explanation.—For the purposes of this clause a person shall not be deemed to hold an office of profit under the
Government of India or the Government of any State by reason only that he is a Minister either for the Union or for
such State.] 3

[(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under
the Tenth Schedule.]

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;

(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.

Explanation. —For the purposes of this clause, a person shall not be deemed to hold an office of profit under the
Government of India or the Government of any State specified in the First Schedule by reason only that he is a
Minister either for the Union or for such State.

(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.”

In the case of LILY THOMAS VERSUS UNION OF INDIA & OTHERS LNIND 2013 SC 638
, the hon’ble Supreme Court affirmed the role of Parliament in the promulgation of Legislation which disqualify
membership to either the House of the People or the Legislative Assembly on the basis of certain parameters, the
hon’ble court states as follows,

“Looking at the affirmative terms of Articles 102 (1)(e) and 191(1)(e) of the , Constitution, we hold that Parliament
has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a
member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a
State Legislature”.

The Legislature in this particular regard is a supreme authority overlooking the aforementioned parameters of
composition of the house of people and the council of states as well as the qualifications and the disqualifications of
certain candidates of their right to be elected as a member of the Legislative assembly. The right to elect and the
right to be elected therefore falls within the purview of the relevant statute enacted by the Parliament of Eurekatia
that being the Representation of People Act, 1951 (hereinafter referred to as RPA, 1951)

Within the four corners of the RPA, 1951, with focus on Part 2 of the Act, are various parameters for qualifications
and disqualifications of membership in the House of People and the Council of States. Chapter I of the Part 2
demarcates the qualifications criteria for membership of a general category seat to either Legislative assembly in
particular Sections 3, 4(d) and 5(c) , which state the following,

“[3. Qualification for membership of the Council of States.—A person shall not be qualified to be chosen as a
representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary
constituency [in India].]

4. Qualifications for membership of the House of the People.—A person shall not be qualified to be chosen to fill a
seat in the House of the People 7 * * *, unless—
(d) in the case of any other seat, he is an elector for any Parliamentary constituency.

5. Qualifications for membership of a Legislative Assembly.—A person shall not be qualified to be chosen to fill a
seat in the Legislative Assembly of a State unless—

(c) in the case of any other seat, he is an elector for any Assembly constituency in that State: “

The key specification here is that for a candidate to qualify as a member of either the House of the People or the
Legislative Assembly he is first and foremost required to be an elector, Section 2(e) of the RPA, 1951 defines the
meaning of the term “elector” wherein it states the following,

“Section 2(e)

[(e) "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that
constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section
16 of the Representation of the People Act, 1950 (43 of 1950);] “

The provision makes reference to Section 16 of the Representation of People Act, 1950 which demarcates the
various criterion for disqualifications with regards to any person who is a citizen of India for registration in an
electoral roll, it states the following,

“16. Disqualifications for registration in an electoral roll.—

(1) A person shall be disqualified for registration in an electoral roll if he—

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt 2 * * *
practices and other offences in connection with elections.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral
roll in which it is included:
[Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification
under clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the
period such roll is in force, removed under any law authorising such removal.] “

In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Other, [1952] S.C.R. 218 at 236, the
Constitution Bench held :

"The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law
and must be subject to the limitations imposed by it."

In the case of LILY THOMAS VERSUS UNION OF INDIA & OTHERS LNIND 2013 SC 638
,the hon’ble Supreme Court clubbed various writ petitions which also included a series of Writ petitions C.W.J.C.
No.4880 of 2004 and C.W.J.C. No.4988 of 2004 which were filed in the Patna High Court contending that a person,
who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the
lawful custody of the police is not entitled to vote by virtue of sub-section (5) of Section 62 of the 1951 Act and
accordingly is not an elector and is, therefore, not qualified to contest elections to the House of People or the
Legislative Assembly of a State because of the provisions in Sections 4 and 5 of the 1951 Act.

Aggrieved, by the findings of the High Court, the appellants have filed an appeal before the hon’ble court. The
Supreme Court subsequently stated that it did not find any infirmity in the findings of the High Court in the
impugned common order that a person who has no right to vote by virtue of the provisions of sub-section (5) of
Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the
People or the Legislative Assembly of a State, it states the following,

“A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept
away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections.
The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that
persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The
Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a
statutory right. It is a privilege to vote, Page 4950 which privilege may be taken away. In that case, the elector
would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to
be an elector and the privilege to vote when in the lawful custody of the police is taken away”

With reference to the above mentioned provisions and Judicial precedents, Chapter 3 of Part 2 of the RPA, 1951
sets the disqualification criteria for potential member candidates into the House of the People or the Legislative
Assembly, this is also where In May 2024 the impugned Section 8B which was inserted by the Amendment Bill No.
9 of 2024, by the Government of Eurekatia was promulgated, it reads as follows,

“8B. Disqualification from contesting in elections. (1) Such persons, who are otherwise eligible to contest an
election according to this Act, shall be disqualified if a competent court has framed a criminal charge against them
under the Code of Criminal Procedure, 1973 for an offence punishable by at least five years of imprisonment:

Provided that such disqualification shall not apply when a criminal charge has been framed less than one year
before the date of scrutiny of nominations for the upcoming election under Section 36 of this Act. (2) Any
disqualification under sub-section (1) shall continue till the time such persons are discharged or acquitted by a
competent court.”

It is well settled that when there is evidence indicating strong suspicion against the accused, the trial court will be
justified in framing the charge and granting an opportunity to the prosecution to bring on record the entire
evidence for the purposes of trial. Section 228 and 240 of the CrPC demarcates the procedural requirement of the
framing of a charge, it reads as follows,

“228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has committed an offence which— ((b) is exclusively triable by the
Court, he shall frame in writing a charge against the accused

240. Framing of charge. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate
is of opinion that there is ground for presuming that the accused has committed an offence triable under this
Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him,
he shall frame in writing a charge against the accused. “

The aforementioned impugned Section 8B of the RPA, 1951 also makes clear that the criminal charge framed
against the Member of Parliament by a competent court needs to be an offence punishable by at least 5 years.
Offences that generally warrant a punishment of at least 5 years are significant crimes that tend to cause public
upheaval and stir the conscience of the public at large. Some of the offences punishable by atleast five years include
section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section
498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (3) of section 505
(offence relating to such statement in any place of worship or in any assembly engaged in the performance of
religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860).
As per the data accumulated by the Election Commission of Eurekatia of the 539 Members of Parliament who won
the General Election in May 2020, Members of Parliament with serious criminal charges framed against them
account for 29% that being of 159 Members of Parliament. There have also been 30 Member of parliaments with
attempt to Murder charges against them, 29 Member of Parliament with Murder charges framed against them, 19
Member of Parliament with Hate Speech charges filed against them and so on.

Infact as per the Tajio Institute for Kanoon Reforms, an independent think tank working on reforms in the justice
delivery system. Their study showed that 43% of all the Members of Parliament (“MPs”) , that being 233 Members
of the 539 total Members of Parliament elected in the 2020 parliamentary elections, were facing criminal cases at
that time.

Therefore, given the egregious nature and depravity of offences that are committed which are punishable by at least
five years, it’s prudent for the Legislature to enact statutory provisions prohibiting members of parliament who have
criminal charges framed against them by a competent court as this would prevent political disequilibrium and ensure
to the best possible extent that Politics in Eurekatia is free from crime and corruption.

Issue 4: Lal Mahesh Diwan v. Union of Eurekatia:

Whether Section 62(5) of the RPA 1951 is liable to be struck down as being unconstitutional?

The right to elect otherwise colloquially understood as the right to vote is not a fundamental or constitutional right
but primarily a statutory right, which implies that if a statute provided a certain right, it is legitimate to interpret that
the same right may be constricted, restricted or prohibited by the aforementioned statute.

Though the right to vote is considered by many to be an exercise as an extension of the fundamental right of free
speech as enshrined in Article 19(i)(a) of the Constitution of India, that is imprecise from a judicial and legislative
standpoint. The base principle of adult suffrage is found in Article 326 of the Constitution, which states the
following,
“326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult
suffrage.—

The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult
suffrage; that is to say, every person who is a citizen of India and who is not less than [eighteen years] of age on
such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not
otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of

1) non-residence,
2) unsoundness of mind,
3) crime or corrupt or illegal practice,

shall be entitled to be registered as a voter at any such election.”

Article 326 makes clear, that every person who is a citizen of Eurekatia is eligible to cast his vote to the House of
the People and to the Legislative Assembly of every state who otherwise is not disqualified by either the
Constitution of any law made by the appropriate Legislature on the 3 major grounds but in particular on the grounds
of crime or corrupt or illegal practice.

The Legislature subsequently enacted the Representation of People, Act 1951 which is the primary statute for
matters pertaining to Elections and electoral practices. Section 2(e) of the aforementioned Act is an interpretation
clause which provides a definition of the term ‘elector’, it states as follows,

“Section 2(e)

[(e) "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that
constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section
16 of the Representation of the People Act, 1950 (43 of 1950);] “

The provision makes reference to Section 16 of the Representation of People Act, 1950 which demarcates the
various criterion for disqualifications with regards to any person who is a citizen of India for registration in an
electoral roll, it states the following,

“16. Disqualifications for registration in an electoral roll.—

(1) A person shall be disqualified for registration in an electoral roll if he—

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt 2 * * *
practices and other offences in connection with elections.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral
roll in which it is included:

[Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification
under clause (c) of sub-section (1) shall forthwith be re-instated in that roll if such disqualification is, during the
period such roll is in force, removed under any law authorising such removal.] “

With reference to the above mentioned provisions, the intent and expression of the Legislature is made abundantly
clear that the right to vote is a statutory right subject to certain restrictions and qualifications failing which the right
may be rescinded. The impugned provision that being Section 62(5) of the Representation of People Act, 1951 is in
furtherance of the aforementioned intent of the Legislature in ensuring to the best possible extent a free and fair
election. The impugned provision reads as follows,

“62. Right to vote.—

(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody of the police for being accused of an offence punishable by
at least three years of imprisonment:

Provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for
the time being in force.”

In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Other, [1952] S.C.R. 218 at 236, the nature
of the right to vote has been held to be a statutory right and not a common law right because of which it depends on
the nature of right conferred by the statute. the Constitution Bench held :

"The right to vote or stand as a candidate for election is not a civil right but is a creature of statute
or special law and must be subject to the limitations imposed by it."

In Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 at 696, the Supreme Court was once again tasked with ascertaining
the constitutional validity of Section 62(5) of the Representation of People, Act 1951, wherein the hon’ble court
reiterated its stance on the matter and with previous pronouncements of the hon’ble court, it stated as follows,

"A right to elect, fundamental though it is to 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. So is the right to dispute an election. Outside of statute, there is no right to elect,
therefore they are subject to statutory limitation."

In S. Radhakrishnan vs. Union of India & Ors. In W.P.(C) No.1028/1990 dated 17th August, 1999, the Supreme
Court reaffirmed its stance in the aforementioned pronouncements and in the case of Anukul Chadra Pradhan v.
Union of India & Ors. MANU/SC/0752/1997 : AIR 1997 SC 2814, wherein it states the following,
 “2. The issue raised in this petition is no longer res integra. In Anukul Chadra Pradhan v. Union of India & Ors.
MANU/SC/0752/1997 : AIR 1997 SC 2814, a three Judge Bench of this Court speaking through Verma, CJI (as His
Lordship then was) examined the ambit and scope of Section 62(5) of the Representation of the People Act, 1950
and after observing that criminalisation of politics is the bane of society and negation of democracy, rejected the
challenge to the validity of the said Section. It was opined that the object of Section 62(5) is to prevent
criminalisation of politics and maintain probity in elections and that any provision which furthers that aim and
promotes the object has to be welcomed, as subserving a great constitutional purpose. We are in respectful
agreement with the view expressed by the three Judge Bench in Anukul Chandra Pradhan‟s case (supra) and are
not persuaded to take a different view. “

The statutory provision abides by the principles imbibed in Article 14, by restricting a class of people with
reasonable classification with a rational nexus to the objects sought to be achieved, that being to protect the integrity
of a free and fair election which is an essential element of the basis structure of the Constitution.

Article 14 of the Constitution of India is considered an integral element of the basic structure of the Constitution. It
is a fundamental right which all persons within the territory of India are able to enjoy. It states as follows,

14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.

The equal protection of laws guaranteed by Article 14 does not mean that Legislation must be general in character
and cater towards all equally irrespective of circumstance. The varying socio-political, socio economic and socio-
cultural aspects of different classes of persons often require separate treatment.

Given the nature of a diverse, heterogeneous and pluralistic society, it necessitates the need for different legislation
applicable for different classes and categories of people keeping in mind the interest associated with the safety and
security of the state. Identical treatment in unequal circumstances would amount to inequality or inequitable
treatment.

Article 14 encourages reasonable classification, the classification however must not be “arbitrary ,artificial or
evasive but must be based on some real and substantial bearing and a just and reasonable relation to the object
sought to be achieved by the legislation.

The impugned provision that being of Section 62(5) of the Representation of People Act, 1951 has time and again
been the subject of scrutiny through several pronouncements by the hon’ble Supreme Courts and various High
Courts of Eurekatia where the court in consonance with the Stare Decisis in Ankul Chadra (supra) which ruled that
Section 62(5) does not violate any fundamental right reaffirmed its stance through several subsequent
pronouncements. The intelligible differentia of Section 62(5) is abundantly clear as there is a reasonable
classification of people that being individuals who are confined in a prison, whether under a sentence of
imprisonment or transportation or otherwise, or are in the lawful custody of the police for being accused of an
offence punishable by at least three years of imprisonment, and the rational nexus of ensuring that this particular
category of people do not engage in the electoral process so as to prevent them from potentially impacting the
conduct of a free and fair election in a manner not conducive for the safety and stability of society.

The Hon‟ble Supreme Court in Mahendra Kumar Shastri vs. Union of India & Anr., (1984) 2 SCC 442 affirmed its
position with regards to whether Section 62(5) fulfils the test of reasonable classification wherein it held as under:-

“We do not find any merit in the contentions urged by the petitioner in the writ petition. The disability which is
imposed under Section 62(5) of the Representation of the People Act is equally applicable to all persons similarly
situated mentioned therein and they are even prevented from contesting the election or offering themselves as
candidates for such election. The provision is reasonable and in public interest to maintain purity in electing
peoples' representatives and there is no arbitrariness or discrimination involved. Rule is discharged and the writ
Petition is dismissed.”

In the case of Anukul Chandra Pradhan vs Union of India & Ors. MANU/SC/0752/1997 : AIR 1997 SC 2814, the
hon’ble Supreme Court upheld the validity of Section 62(5). It reiterated its stance by stating the following,

. “5. There are provisions made in the election law which exclude persons with criminal background of the kind
specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of
politics and maintain probity in elections. Any provision enacted with a view to promote this object must be
welcome and upheld as subsisting the constitutional purpose. The elbow room available to the legislature in
classification depends on the context and the object for enactment of the provision. The existing conditions in which
the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to
be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is
subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the
election law to promote the object of fight and fair elections and facilitate maintenance of law and order which are
the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to
be available to achieve the professed object. “
The various High Courts of Eurekatia have on several occasions which warranted the scrutiny of Section 62(5) of
the Representation of People Act, 1951 reaffirmed the stance taken by the hon’ble Supreme Court in the
aforementioned pronouncements, whereby the constitutional validity of Section 62(5) of the Representation of
People Act, 1951 was upheld,

In the case of Manohar Lal Sharma V/s. Union of India , the Delhi High Court reiterated that subsection (5) of
Section 62 is constitutionally valid. The conclusion in paragraph No.13 reads as under,

“13. In view of the aforesaid discussion, we hold that Section 62(5) is constitutionally valid. The classification of the
persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the
objects sought to be achieved as stated hereinabove.”

In a bail order application filed before the High Court of Mumbai for the case of Mohammad Nawab Mohammad
Islam Malik @ Nawab Malik versus The Directorate of Enforcement (BAIL APPLICATION NO.1787 OF 2022),
the application for bail was denied to the appellants who were MLAs of the Maharashthra Legislative Assembly
accused of various offences under the Prevention of Money Laundering Act, 2002. They wished to place their vote
in the Legislative assembly for a particular election, for which they petitioned the court for interim bail, the court
rejecting and disposing of the application noted the following,

“31. It would be sufficient to note that the concept of ‘democracy’ transcends ‘electoral democracy’. Purity of
electoral process and probity of the participants therein, are also of equal significance in strengthening the
democratic principles. One of the objects of the prohibition envisaged by sub-section (5) of Section 62 is stated to be
arresting the criminalization of politics. I am, therefore, not inclined to accede to the broad proposition that
permitting the persons (who are otherwise not qualified to vote in the election) strengthens democracy.”

Thus it is made abundantly clear that Section 62(5) of the Representation of People Act, 1951 is Constitutionally
appropriate and does not violate the fundamental right of Equality, and the same is iterated by the Judicial
Machinery through its various pronouncements as aforementioned.