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1 LEXOSPHERE NATIONAL MOOT COURT COMPETITION

1ST LEXOSPHERE NATIONAL MOOT COURT

COMPETITION, 2024

BEFORE THE HON’BLE SUPREME COURT OF DELHI

PIL. (CIVIL) NO._________/2024

IN THE MATTER OF:

Amar and Ors……………………………………………..PETITIONERS

v.

Union of Zondia and Anr……..………………………RESPONDENTS

PETITION INVOKE UNDER ARTICLE 32 OF THE

CONSTITUTION OF ZONDIA

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF ZONDIA

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Table of Contents

LIST OF ABBREVIATIONS ................................................................................................................4

INDEX OF AUTHORITIES .................................................................................................................5

STATEMENT OF JURISDICTION ....................................................................................................8

STATEMENT OF FACTS .....................................................................................................................9

STATEMENT OF ISSUES ..................................................................................................................10

SUMMARY OF ARGUMENTS .........................................................................................................10

ARGUMENTS ADVANCED ..............................................................................................................12

ISSUE I Whether the PIL filed by the Six MLA of IPA is Maintainable or not.............................13

1.1 The Wrong Inflicted Upon the Public At Large:.....................................................................13

1.2 Infringement of fundamental rights: .......................................................................................14

ISSUE II Whether the 10th Schedule of the Constitution prohibiting honest and genuine dissent
deserves to be declared unconstitutional. ..........................................................................................16

2.1: The Anti-Defection Law stifles the fundamental right to freedom ofspeech and expression
guaranteed under Article 19(1) (a) of the Constitution. ...............................................................16

2.2: The Anti-Defection Law undermines the principle of representativedemocracy and

violates the rights of elected representatives. ................................................................................17

2.3: The Anti-Defection Law, in its current form, is prone to honestopinion. ............................20

ISSUE III. Whether section 2(b) of the schedule infringes upon privileges outlined in Article 105
of the Constitution. ..............................................................................................................................22

3.1: Contradiction with Article 105 Privileges ..............................................................................22

3.2: Infringement of the Right to Dissent ......................................................................................24

3.3: Violation of Separation of Powers ...........................................................................................22

ISSUE IV. Whether the speaker, while deciding the case under the 10th Schedule meet the criteria
of being an independent adjudicatory machinery. ...........................................................................26

4.1 The Speaker's engagement in perversity renders him unsuitable to serve as an

independent adjudicatory authority ..............................................................................................26

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4.2 The Speaker's actions stand in direct opposition to democratic principles. .........................27

PRAYER ...............................................................................................................................................30

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LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad

Art. Article

Cal Calcutta

Del Delhi

Ed. Edition

Mad Madras

Ori Orissa

p. Page No.

PAT Patna

PIL Public Interest Litigation

Raj Rajasthan

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

Sec. Section

u/a Under Article

Hon’ble Honourable

H.C High Court

& and

Cri. Criminal

Govt. Government

Manu Manupatra

No. Number

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INDEX OF AUTHORITIES

BOOKS

1. 10 Durga Das Basu, Commentary of COI 12247 (Lexis Nexis 2011).

2. Mamta Rao, Law Relating to Women and Children (EBC, Lucknow,4th edn. 2018).
3. M.P Jain, Indian Constitution Law (LexisNexis, New Delhi, 7th edn. 2014).
4. Ratanlal and Dhirajlal, The Indian Penal Code (LexisNexis, Gurgaon, 34th edn. 2014).
5. 3 L.M. SINGHVI, CONSTITUTION OF INDIA 565 (3rd ed. 2013).
6. 3 STROUD, JUDICIAL DICTIONARY OF WORDS AND PHRASES 2204 (3rd ed.
2008).
7. V.N. SHUKLA, THE CONSTITUTION OF INDIA 1064 (M.P. Singh ed., 2008).
8. V.G Ramchandran, Law of Writs, 26 (6th ed, 2006).
9. G.C. Malhotra, ANTI-DEFECTION LAW IN INDIA AND THE COMMONWEALTH
1 (1st ed. Metropolitan Book Co. Pvt. Ltd. 2005).

REPORTS

1. Law Commission of India, Electoral Reforms, 255th Report, 2015.

2. MADHAVI DIWAN, FACETS OF MEDIA LAW 102 (2006).
3. SUBASH C. KASHYAP, PARLIAMENTARY PROCEDURE: THE LAW,
PRIVILEGES, PRACTICE, AND PRECEDENTS, Vol. II, 2157 (2000).
4. MINISTRY OF HOME AFFAIRS, REPORT OF COMMITTEE ON DEFECTIONS.
UNDER THE CHAIRMANSHIP OF SHRI Y.B. CHAVAN (1969).
5. 2 Speaker A.G. Noorani, Constitutional Questions & Citizen's Rights 155 (2006).

CONVENTIONS REFERED

1. Universal Declarations of Human Rights, Art.19.

2. International Covenant on Civil and Political Rights, Art.19.

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CASES

1. SP. Anand, Indore v. H.D. DeveGowda, (1996) 6 SCC 734.

2. Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892.
3. Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540.
4. People's Union for Democratic Sights v. Union of India, (1982) 3 SCC 235.
5. S.P. Gupta v. President of India, 1981 Supp SCC 87: AIR 1982 SC 149.
6. D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378: AIR 1987 SC 579.
7. Veena Sethi v. State of Bihar, (1982) 2 SCC 583 (India).
8. Ramsharan Autyanuprasi v. Union of India, 1989 Supp SCC 251: A.I.R. 1989 S.C. 549
(India).
9. Maharaj Singh v. State of Uttar Pradesh, (1977) 1 SCC 155 (India).
10. Union of India v. KA Najeeb, 2021 SCC Online SC 50.
11. In re (1965) SCR 413.
12. Tongbram Robindro Singh v. Hon’ble Speaker Manipur Legislative Assembly and
others WP (C) NO. 317, 2020.
13. People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399.
14. P.V. Narasimha Rao v. State, AIR 1998 SC 2120: (1958) 4 SCC 626; supra, Ch. II.
15. K. Ananda Nambiar v. Govt. of Madras, AIR 1966 SC 657.
16. Mian Bashir Ahmad v. State of J&K, AIR 1982 J&K 26.
17. People's Union for Civil Liberties v. Union of India, (2004) 2 SCC 476.
18. Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691: (1982) 3 SCR 318.
19. People's Union for CivilLiberties v. Union of India, (2009) 3 SCC 200.
20. K.N. Subbareddy v. Advocates Assn., ILR 2009 KAR 1697.
21. Mian Bashir Ahmad v. State of J&K, AIR 1982 J&K 26.
22. S.R. Bommai v. Union of India 1994 3 SCC 1.
23. Narasimha Rao v. State (SBI/SPE) (1998) 4 SCC 626.
24. Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641.
25. G. Viswanathan v. Hon'ble Speaker T.N. Legislative Assembly, (1996) 2 SCC 353.
26. Kihota Hollohon v. Zachillu, 1992 Supp (2) SCC 651.
27. Balchandra L. Jarkiholi v. B.S. Yeddyurappa, (2011) 7 SCC 1.
28. Kesavananda Bharati v. State of Kerala (1973).
29. Indira Nehru Gandhi v. Raj Narain (1975).
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30. L. Chandra Kumar v. Union of India (1997).

31. State of Gujarat v. Gujarat Revenue Tribunal Bar Association (2012),10 SCC 353.
32. Bharat Bank Ltd. v. Employees, 1950 SCC 470.
33. Virindar Kumar Satyawadi v. State of Punjab, (1955) 2 SCR 1013.
34. Engineering Mazdoor Sabha v. Hind Cycles Ltd., 1962 SCC OnLine SC 134.
35. Shyam Sundar Jhunjhunwala, AIR 1961 SC 1669.
36. Associated Cement Companies Ltd. v. P.N. Sharma, AIR 1965 SC 1595.

37. Shrimanth Balasaheb Patil and Ors. v. Hon'ble Speaker, Karnataka Legislative
Assembly and Ors.SC/1558/2019.
38. U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. MANU/SC/2467/2005.
39. Naresh Shridhar Mirajkar and Ors. v.State of Maharashtra and Anr.
MANU/SC/0044/1966.
40. Kihoto Hollohan v. Zachillhu and othes 1992 SCR (1) 686 ;
41. Mayawati vs. Markandeya Chand and Ors. (09.10.1998 - SC): MANU/SC/0647/1998;
42. Md. Fajur Rahim and Ors. v. The Hon'ble Speaker, Manipur Legislative Assembly and
Ors. (23.07.2019 - Manipur); MANU/MN/0125/2019.
43. Kihoto Hollohan vs. Zachillhu and others 1992 SCR (1) 686.

44. S.A. Sampath Kumar vs. Kale Yadaiah and Ors. AIR 2016 SC 1647.
45. Haryana Vidhan Sabha v. Kuldeep Bishnoi and Ors. (2015) 12 SCC 381.
46. Orissa Legislative Assembly v. Utkal Keshari Parida (2013) 11 SC.

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Zondia has the jurisdiction in this matter under Article 32 of
the Constitution of Zondia which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.”

(3) Without prejudice to the powers conferred on the SC by clause (1) & (2), Parliament
may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the SC under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

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STATEMENT OF FACTS

Zondia, a democratic country with rich history, tradition, and culture, comprises 29 States and
8 union territories with a population of 1.25 Crore. The constitution of Zondia embodies the
spirit of socialism, emphasizing principles of Social Justice, Federalism, Independent Judiciary,
and Separation of powers.
Legislative powers in Zondia are delineated in three lists: Union List, State List, and
Concurrent List, as per the seventh schedule of the Constitution. Additionally, the 10th
Schedule, known as the "Anti-Defection Law," prevents lawmakers from switching parties
without consequences. Bhartiya Nagarik Association (BNA) emerged victorious in the 2014
and 2019 general elections, defeating Indian People Association (IPA), setting the stage for the
2024 elections.
On January 10, 2024, the government proposed the Regulation of Artificial Intelligence (AI)
Bill, 2024, stated for voting on February 25, 2024.
The IPA president issues a whip on February 15, 2024, directing the party members to vote
against the AI Bill.
Six IPA Members of Lok Sabha, namely Amar, Sneha, Rahul, Neha, Vikram, and Aisha, find
themselves in a constitutional dilemma as they support the AI Bill despite the opposition from
the IPA president.
Despite party pressure, the six Members of Lok Sabha vote against the party directive,
prompting the IPA president to seek their disqualification on March 9, 2024, before the Lok
Sabha Speaker.
On March 25, 2024, the Lok Sabha Speaker disqualifies the six Members of Lok Sabha, leading
them to challenge the decision by filing a Public Interest Litigation (PIL) before the Supreme
Court.
The Members of Lok Sabha argue that the Anti-Defection Law infringes upon their right to
freedom of speech and expression, as well as their privileges under Article 194 of the
Constitution, by stifling honest dissent.

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STATEMENT OF ISSUES

ISSUE I

Whether the PIL filed by the Six MLA of IPA is Maintainable or not.

ISSUE II

Whether the 10th Schedule of the Constitution prohibiting honest and genuine dissent
deserves to be declared unconstitutional.

ISSUE III

Whether the section 2(b) of the 10th Schedule infringe upon the Privileges outlined in
Article 105 of the Constitution.

ISSUE IV

Whether the Speaker while deciding the case under the 10th Schedule meeting the
criteria of being an independent adjudicatory machinery.

SUMMARY OF ARGUMENTS

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ISSUE I Whether the PIL filed by the Six MLA of IPA is Maintainable or not.

The argument presented in the petition under Article 32 asserts its maintainability based on
two primary grounds. Firstly, it highlights the public interest involved, emphasizing the
wrongful infringement upon the collective rights of the constituents by disqualifying
elected representatives who dissented against the party president. This action is deemed to
impede not only individual rights but also democratic principles, rendering the PIL
justifiable. Secondly, it argues the violation of fundamental rights, particularly freedom of
speech and expression guaranteed under Article 19(1)(a) of the Zondian Constitution. The
petition contends that the application of the Anti-Defection Law to suppress dissent
constitutes a clear violation of constitutional guarantees and democratic norms. Citing legal
precedents and international frameworks, the petition underscores the necessity for fair
adjudication and protection of fundamental rights. Therefore, the PIL is deemed
maintainable due to the egregious breach of constitutional principles and the public interest
at stake.

ISSUE II Whether the 10th Schedule of the Constitution prohibiting honest and genuine
dissent deserves to be declared unconstitutional.

The argument presented asserts that the Anti-Defection Law, as outlined in the 10th Schedule
of the Constitution, infringes upon the fundamental right to freedom of speech and expression
guaranteed by Article 19(1)(a). It restricts legislators from voting according to their conscience
or the wishes of their constituents, thereby undermining representative democracy.
Additionally, the law stifles honest opinion by mandating strict adherence to party lines,
negating the need for debate and discussion in Parliament. Despite its intended purpose of
curbing corruption and maintaining democratic ideals, the Anti-Defection Law, particularly
Paragraph 2(1)(b), fails to achieve its objectives and should be reconsidered to allow for intra-
party dissent and uphold the principles of democratic governance.

ISSUE III Whether the section 2(b) of the 10th Schedule infringe upon the Privileges
outlined in Article 105 of the Constitution.

The argument presented challenges Section 2(b) of the 10th Schedule, contending it contradicts
Article 105 privileges, impinges on the right to dissent, and violates the separation of powers.
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By penalizing MPs for voting against party directives, it undermines parliamentary

democracy's core principles. Furthermore, it restricts MPs' freedom of speech and expression,
compromising their ability to represent constituents effectively. Moreover, empowering the
Speaker to adjudicate on disqualification matters blurs the separation of powers, jeopardizing
judicial independence. Overall, striking down Section 2(b) safeguards democratic principles,
ensuring MPs' autonomy and upholding constitutional integrity.

ISSUE IV Whether the Speaker while deciding the case under the 10th Schedule meeting
the criteria of being an independent adjudicatory machinery.

The argument presented challenges the validity of the Speaker's role as an independent
adjudicatory authority in disputes under the 10th Schedule of the Constitution. It contends that
the Speaker's decisions lack independence, essential for impartial adjudication. Firstly, it
asserts that the Speaker's involvement in partisan actions renders them unsuitable for
independent adjudication, citing cases where decisions were perceived as unreasonable and
lacking justification. Secondly, it argues that the Speaker's tenure, dependent on political
support, compromises their impartiality. This reliance on political allegiance undermines
democratic principles and violates the separation of powers. The argument concludes that the
Speaker's involvement in such disputes undermines the integrity of the legislative framework
and erodes public trust in democratic processes.

ARGUMENTS ADVANCED

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ISSUE I Whether the PIL filed by the Six MLA of IPA is Maintainable or not.

It is humbly submitted before the Hon’ble Court that the present petition filed under Article
32 of the Constitution is maintainable and the arguments in favour of the same are as follows;
1.1 The Wrong Inflicted Upon the Public At Large:
One of the necessary conditions for a PIL is that it should involve public interest.1 The Hon'ble
Supreme Court has ruled that a person acting bona fide and having sufficient interest in
maintaining an action for judicial redress for public injury to put the judicial machinery in
motion2will be believed to have the requisite locus standi.3

In the words of Justice Bhagwati, “public interest litigation is essentially a cooperative or

collaborative effort on the part of the petitioner, the State or public authority and the court to
secure observance of the constitutional or legal rights, benefits and privileges conferred upon
the vulnerable sections of the community and to reach social justice to them.” 4

In the present case, all the six members of the legislative assembly who voted against the
IPA party president were disqualified5. Locus Standi means the right to bring an action, to be
heard in court, or to address the court on a matter before it. 6 In other words, the term “locus
standi” can be understood as the legal capacity to challenge legislation, an order or a
decision.7
In the instant case, the Public Interest Litigation (PIL) filed by the six MLAs of the Indian
People Association (IPA) stands as an embodiment of the wrong inflicted upon the public at
large. As elected representatives, the petitioners are tasked with the solemn duty of representing
the collective will and aspirations of their constituents. By invoking the provisions of the Anti-
Defection Law to curtail the freedom of expression and conscientious dissent, the
respondents have not only impeded the individual rights of the petitioners but have also
stifled the voices of the public they are duty-bound to represent. This wrongful act transcends

1
SP. Anand, Indore v. H.D. DeveGowda, (1996) 6 SCC 734; 3 L.M. SINGHVI, CONSTITUTION OF INDIA
565 (3rd ed. 2013); 3 STROUD, JUDICIAL DICTIONARY OF WORDS AND PHRASES 2204 (3rd ed. 2008).
2
Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892.
3
Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540.
4
People's Union for Democratic Sights v. Union of India, (1982) 3 SCC 235: A.I.R. 1982 S.C. 1473 at 1477-78.
5
Moot problem
6
S.P. Gupta v. President of India, 1981 Supp SCC 87: AIR 1982 SC 149.
7
V.G Ramchandran, Law of Writs, 26 (6th ed, 2006).
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the individual realm and strikes at the heart of democratic principles, thereby rendering the
PIL eminently maintainable.

Furthermore, a petitioner will be deemed to have sufficient interest to maintain a petition

under Article 32 as a member of the public because it is the right of the public to be governed
by laws made in accordance with the Constitution and not laws made by the legislature in
violation of the constitutional provisions. 8
1.2 Infringement of fundamental rights:
A matter under PIL is in the interest of the public when there is a gross violation of
fundamental rights 9 Art.19 (1) (a) of the Constitution of Zondia guarantees the right to
freedom of speech and expression. This right is one of the most interpreted Fundamental
Rights of the Zondia Constitution and has been given different dimensions to include
different rights.

In India, in Maneka Gandhi’s case, J. Bhagwati emphasized the significance of freedom of

speech and expression as Democracy is based essentially on free debate and open discussion,
for that is the only corrective of Government action in a democratic set-up. The right to
freedom of speech and expression has also been variously described as a basic human right,
a natural right and the like. 10

Having conferred freedom of speech on the legislators, clause (2) emphasises the fact that the
said freedom is intended to be absolute and unfettered. Similar freedom is guaranteed to the
legislators with respect to the votes they may give in the legislature or any committee thereof.
11

Referring to Art. 19 of the Universal Declaration of Human Rights states that everyone has
the right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any media
and regardless of frontiers.12

8
D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378: AIR 1987 SC 579.
9
Veena Sethi v. State of Bihar, (1982) 2 SCC 583 (India); Ramsharan Autyanuprasi v. Union of India, 1989 Supp
(1) SCC 251: A.I.R. 1989 S.C. 549 (India); Maharaj Singh v. State of Uttar Pradesh, (1977) 1 SCC 155 (India);
Union of India v. KA Najeeb, 2021 SCC Online SC 50.
10
M.P Jain, Indian Constitutional Law 1059 (Lexis Nexis 2018).
11
In re (1965) SCR 413.
12
Universal Declarations of Human Rights, Art.19.
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Apart from this, Art. 19 of the International Covenant on Civil and Political Rights has 3 clauses
which states as follows –
• Everyone shall have the right to hold opinions without interference.13
• Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or print, in the form of art, or through any other media of his choice. 14
• The exercise of the rights provided for para 3 of this Art. carries with its special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such
as are provided by law and are necessary: (a) For respect of the right or reputations of others;
(b) For the protection of national security or of public order, or public health or morals. 15

Referring to, Commentary on the Constitution of India, by Dr Durga Das Basu, where he
states that (in regards to the previous anti-defection law) since the speaker is involved in an
adjudicating process, fairness demands that generally the member in fault should be given some
opportunity to explain his position.16 The same opportunity to explain themselves had not
been given to the members of the independent group by the speaker in the assembly.

The purported act of disqualifying the petitioners from the IPA, orchestrated by the party
president and subsequently endorsed by the Lok Sabha Speaker, constitutes a violation of
the fundamental right. Art. 19(1)(a) of the Constitution enshrines the principle of natural
justice and the fundamental right to freedom of speech and expression as an inviolable
cornerstone of democratic governance. By wielding the Anti-Defection Law as a tool of
coercion to suppress dissenting opinions, the respondents have not only transgressed the
constitutional guarantees of the petitioners but have also undermined the sanctity of the
democratic process itself. In light of this egregious violation of constitutional principles, the
PIL stands firmly on the grounds of maintainability.

13
International Covenant on Civil and Political Rights, Art.19.
14
Ibid
15
Ibid
16
10 Durga Das Basu, Commentary of COI 12247 (Lexis Nexis 2011).

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ISSUE II Whether the 10th Schedule of the Constitution prohibiting honest and genuine
dissent deserves to be declared unconstitutional.

It is humbly submitted before the Hon’ble Court that the 10th Schedule of the constitution
prohibiting honest and genuine dissent deserves to be declared unconstitutional and the
arguments in favor of the same are as follows:

2.1: The Anti-Defection Law stifles the fundamental right to freedom of speech and
expression guaranteed under Article 19(1) (a) of the Constitution.
The Anti-Defection Law, as enshrined in the 10th Schedule of the Constitution, imposes
unreasonable restrictions on the freedom of speech and expression of elected representatives.
The essence of democracy lies in the free exchange of ideas and the ability of elected
representatives to voice the concerns and opinions of their constituents without fear of reprisal.
However, the provisions of the Anti-Defection Law compel legislators to adhere to the party
line, even when it contradicts their personal beliefs or the interests of their constituents.
Voting can be regarded as a form of expression 17, so Art. 19(1)(a) can also be considered to be
ensuring freedom to vote. Elected representative of people should have freedom to exercise
their vote and choose and make laws for which people have elected them, but the anti- defection
law is a kind of restriction on this freedom, where paragraph 2(1) of the Tenth Schedule of
Indian Constitution provides that “a member of Parliament or State Legislature belonging to
any political party shall be disqualified for continuing as such member, if he votes or abstains
from voting in the House contrary to any direction issued by the political party to which he
belongs or by any person or authority authorized by him on this behalf, without obtaining, in
either case, the prior permission of such political party, person, or authority and such voting or
abstention has not been condoned by such political party, personor authority within 15 days
from the date of such voting or abstention.”
Although the purpose of the Tenth Schedule is to “prevent the breaching of faith of the
electorate,” as when “a constituency returns a candidate to the Legislature, it does so on
considerations based on the ideologies of the political party he represents, and it is only logical
that where the candidate, after being elected, leaves that party or acts contrary to its policies,

17
People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399: AIR 2003 SC 2363.
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he should be recalled for betrayal of the faith of the electorate.218” But this gives the power to
an undemocratically appointed political party head to decide what will be the expression of the
vote of a democratically elected candidate while making laws and transacting business in
parliament, which seems to be an unjust and unreasonable restrictionupon their freedom of
speech and expression.
So, to balance, on one hand, the sanctity of the parliament by not allowing the members to
indulge in horse trading and, on the other hand, the sanctity of the democratic process of law
making, there is a serious need for deliberation on this issue.

The Supreme Court, in numerous judgments, has reiterated that freedom of speech and
expression is sacrosanct in a democratic society. Any law or provision that curtails this
fundamental right must be carefully scrutinized to ensure that such restrictions are reasonable
and necessary in the interest of the sovereignty and integrity of the nation. However, the
Anti-Defection Law, by penalizing honest dissent within political parties, creates a chilling
effect.
However, it is submitted that the Court must now re-examine this issue in light of the
evolving democratic principles and the need to protect freedom of speech and expression of
elected representatives.

2.2: The Anti-Defection Law undermines the principle of representative democracy and
violates the rights of elected representatives.

The Anti-Defection Law, by penalizing legislators for voting according to their conscience
or the wishes of their constituents, undermines the very essence of representative democracy.
Elected representatives are duty-bound to act in the best interests of their constituents and
exercise their judgment on legislative matters independently. However, the Anti-Defection
Law compels legislators to toe the party line, even when such adherence goes against the
interests of their constituents or their own conscience.
In case of a conflict between the freedom of speech under Art. 19(1)(a ) and the privilege
of Parliament or a State Legislature under Art. 105 or 194, respectively, the freedom of speech
will give way to accommodate the legislative privilege. It has also been ruled by the Supreme

18
Law Commission of India, Electoral Reforms, 255th Report, 2015.
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Court that the freedom of speech available to a Member of Parliament under Art. 105(1) as
well as to a Member of a State Legislature under Art. 194(1) is wider in amplitude than the
right to freedom of speech and expression guaranteed under Art. 19(1)(a )since the freedom of
speech of the members of a Legislature on the floor of the House under Art. 105(1) is not
subject to the limitations contained in Art. 19(2).19

2.2.1 Voting and Freedom of Speech in Parliament

Parliamentarians are vested with numerous privileges to ensure their effective functioning.
Art. 105 of the Constitution elucidates the nature of the privilege in the following words:
“(1) Subject to the provisions of this Constitution and to the rules and standing orders
regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof […]”
This privilege vested in the member of the House, grants a right akin to that enshrined in Art.
19(1)(a), which guarantees a fundamental freedom of speech and expression to all persons.
Parliamentarians are provided this freedom only when inside the House. The scope of this
privilege has been tested in courts before. It has been conclusively established that Art. 105(1)
and its equivalent Art. 194(1) are parliamentary privileges and not fundamental rights.20 It has,
however, been held that the extent of this privilege is much wider than any right vested in an
ordinary person. While reasonable restrictions apply in the case of Art. 19, no such restrictions
have been imposed in case of Art. 105. This is indicative of the greater rights that
parliamentarians enjoy. Members can, for instance, defame another without fear ofcensure,
unlike citizens under Art. 19.21

Aside from unrestricted speech, the Constitution provides for free voting in Parliament.22
Generally, courts have regarded voting by ordinary citizens as a part of speech on the grounds
that it is a tool of expressing feelings, sentiments, ideas or opinions of an individual.23 The right
to vote for the candidate of one's choice is nothing but freedom of voting, and it is the essence

19
P.V. Narasimha Rao v. State, AIR 1998 SC 2120: (1958) 4 SCC 626; supra, Ch. II.
20
K. Ananda Nambiar v. Govt. of Madras, AIR 1966 SC 657
21
MADHAVI DIWAN, FACETS OF MEDIA LAW 102 (2006).
22
Constitution of India, Art. 105(2).
23
Mian Bashir Ahmad v. State of J&K, AIR 1982 J&K 26; People's Union for Civil Liberties v. Union of India,
(2004) 2 SCC 476.
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of democratic polity. While the right to vote is a statutory right, the freedom to vote is
considered a facet of the fundamental right enshrined in Art. 19(1) (a). 24Every person has the
right to form an opinion about any candidate. Casting a vote in favour of one or the other
candidate is tantamount to expressing of this preference.25 This final stage in the exercise of
voting marks the accomplishment of the freedom of speech of the voter.26 Extending this
finding to voting in Parliament, voting becomes an essential element of freedom under Art.105
(1). Voting by members must not thus be restricted by Paragraph 2(1) (b).

Having a restricted right to vote then amounts to an inconsistent situation, seeing as the
privilege of unrestricted speech is much wider in the case of parliamentarians. Even assuming
that voting is not placed on this pedestal; it is undeniable that voting is also a subject of privilege
under Art. 105(2). This does imply, of course, that certain restrictions can be placed on the
exercise of this right. Any restriction on the right of a parliamentarian to vote according to his
own choice, conviction, or conscience is a restriction of the exercise of the right to freedom of
speech, and it must be reasonable. 27 A restriction in the form of Paragraph 2(1)(b), however,
stifles a legitimate avenue of dissent.28

The Constitution of Zondia envisages a system of governance where elected representatives

are accountable to the people who have elected them. The Anti-Defection Law, by restricting
the ability of legislators to act according to the wishes of their constituents, erodes the
principles of representative democracy. In S.R. Bommai v. Union ofIndia,29 the Supreme Court
emphasized the importance of preserving the federal character of the Constitution and
protecting the rights of elected representatives.

Moreover, the Anti-Defection Law gives excessive power to the leadership of political parties,
enabling them to dictate the actions of elected representatives. This concentration of power is

24
Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691: (1982) 3 SCR 318, reiterated in People's Union for Civil Liberties
v. Union of India, (2009) 3 SCC 200.
25
K.N. Subbareddy v. Advocates Assn., ILR 2009 KAR 1697.
26
K.N. Subbareddy v. Advocates Assn., ILR 2009 KAR 1697.
27
Mian Bashir Ahmad v. State of J&K, AIR 1982 J&K 26 ; PRS Legislative Research, Measuring Effectiveness
of the Indian Parliament: Summary of Proceedings from the Conference on Effective Legislatures.
28
SUBASH C. KASHYAP, PARLIAMENTARY PROCEDURE: THE LAW, PRIVILEGES, PRACTICE, AND
PRECEDENTS, Vol. II, 2157 (2000).
29
1994 3 SCC 1.
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antithetical to the principles of democracy and violates the rights of elected representatives to
act independently in the best interests of their constituents

2.3: The Anti-Defection Law, in its current form, hampers the honest opinion.

It is humbly requested that honest opinions should be allowed while voting. Defection Law
was introduced in the country in order to check the rampant practice of parliamentarians
abandoning their original parties to join rival political groups. The need to check this mischief
was heightened by the fact that defection was being used as a weapon to engineer the toppling
and creation of governments. The anti-defection law was thus seen as a reaffirmation of India's
democratic ideals by ensuring that only citizens have a say in government decision making.
Paradoxically, Schedule X has created profound anti-democratic ramifications in Indian
politics. In our parliamentary system where work should be conducted through debate and
discussion, Paragraph 2(1)(b) seems to have curtailed both. It mandates that once the political
party or its authorised person has directed voting on a matter in a particular way, a
parliamentarian cannot vote in a contrary manner. The authorised person specified in Paragraph
2(1)(b) refers to the whip of a political party, a formulation borrowed from the British
Parliament. Whips, as parliamentary functionaries, ensure attendance of party members and
enforce voting according to party lines.30

Even if the member sees merit in a contrary opinion, this provision restricts individual decision-
making and mandates faithful adherence to the directions of the party whip. By curtailing a
parliamentarian's discretion in voting, this provision has effectively mitigated the need for
debate in Parliament. An obvious corollary of encumbered voting is that the law has negatived
any scope for expressing dissent in the House.31 In order for a parliamentarian to effectively
fulfil his functions, he must have the right to vote according to his conscience and not be tied
to his party lines. Allowing for intra-party dissent on the floor of the house is, therefore, in line
with the Parliament's duty of ensuring freedom in action of its members.

30
SUBASH C. KASHYAP, PARLIAMENTARY PROCEDURE: The Law, Privileges, Practice, and Precedents,
Vol. II,2345 (2000). The whips issued in parliament can be of three types: one-line, two-line or three-line, which
indicates the severity and importance of the mandate.
31
V.N. SHUKLA, THE CONSTITUTION OF INDIA 1064 (M.P. Singh ed., 2008).
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In addition to the impugned provision fails to meet its objective of checking bribery and
corruption on the floor of the House. Seeing as the Committee on Defections Established by
the Ministry of Home Affairs held that corruption is a major cause of defection, 32 retaining
Paragraph 2(1) (b) can only be justified against the touchstone of preventing corruption. It will
be argued that this objective has not been met, and to pose an effective check against this ill,
efforts are required to nullify the Narasimha Rao judgment.33

32
MINISTRY OF HOME AFFAIRS, REPORT OF COMMITTEE ON DEFECTIONS UNDER THE
CHAIRMANSHIP OF SHRI Y.B. CHAVAN (1969).
33
(1998) 4 SCC 626.

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ISSUE III. Whether section 2(b) of the Tenth schedule infringes upon privileges outlined
in Article 105 of the Constitution.

It is humbly submitted before the Hon’ble Court that Article 105 of the Constitution of
Zondia confers certain privileges upon the members of the Lok Sabha, including the freedom
of speech in Parliament, immunity from legal proceedings, and applicability to non-members.
These privileges are vital for the effective functioning of parliamentary democracy and are
aimed at ensuring the independence and integrity of parliamentary proceedings.

However, Section 2(b) of the tenth schedule of the Constitution lays down provisions for the
disqualification of members of the Lok Sabha on the grounds of defection. According to this
provision, a member of the Lok Sabha belonging to any political party shall be disqualified if
he votes or abstains from voting in the House contrary to any direction issued by the political
party to which he belongs without obtaining prior permission.

This provision effectively penalizes Members of Lok Sabha for expressing dissenting opinions
or voting according to their conscience, thereby infringing upon their freedom of speech and
expression as guaranteed under Article 105 of the Constitution. Moreover, it undermines the
principles of parliamentary democracy by restricting the ability of members of the Lok Sabha
to effectively represent the interests of their constituents and participate in parliamentary
debates without fear of reprisal. Therefore, it is evident that the provisions of section 2(b) of
the tenth schedule directly infringe upon the constitutional principles enshrined in Article 105
of the Constitution of Zondia.

3.1: Contradiction with Article 105 Privileges

It is humbly submitted before the hon’ble court that Section 2(b) 34 of the 10th Schedule states
that
2. (b) if he votes or abstains from voting in such House contrary to any direction issued by the
political party to which he belongs or by any person or authority authorised by it in this behalf,
without obtaining, in either case, the prior permission of such political party, person, or

34 Tenth Schedule, The Constitution of India Bare Act

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authority and such voting or abstention has not been condoned by such political party, person,
or authority within fifteen days from the date of such voting or abstention.

Contradicts the privileges outlined in Article 105 of the Constitution, stating

Article 105. Powers, privileges, etc., of the Houses of Parliament and of the members and
committees thereof.
(1) Subject to the provisions of this Constitution and to the rules and standing orders
regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

Thereby impinging upon the freedom of speech and expression guaranteed to Members of
Parliament. According to the Anti-Defection Law, if a member of a legislative body belongs
to a political party, they will lose their membership if they willingly leave that political party
or vote against the instructions of their party without prior permission. Furthermore, if they
vote against their party without permission and the party does not forgive them within 15 days,
they lose their membership. The aim of this law is to prevent members of a legislative body
from switching parties or voting against their own party's interests, thus ensuring stability and
discipline within political parties.
However, Article 105 of the Constitution guarantees certain privileges to Members of
Parliament, including the freedom to speak their mind in Parliament without fear of legal
action. Members of Parliament cannot be taken to court for anything they say or any vote they
make in Parliament or its committees. Similarly, no legal action can be taken for publishing
reports, papers, or proceedings of Parliament. By penalizing Members of
Parliament for expressing dissent or voting according to their conscience, section 2(b) of the
10th Schedule directly contradicts the privileges outlined in Article 105 of the Constitution.
This contradiction undermines the freedom of speech and expression guaranteed to Members
of Parliament and compromises the integrity of parliamentary democracy.
Therefore, Section 2(b) of the 10th Schedule must be struck down as it infringes upon the
privileges outlined in Article 105 of the Constitution, which are essential for the effective
functioning of Parliament.

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3.2: Infringement of the Right to Dissent

It is humbly submitted that the provisions of Section 2(b) of the 10th Schedule infringe upon
the fundamental right of Members of Parliament to express dissent and divergent opinions.

Freedom of speech and expression is the cornerstone of a vibrant democracy, encompassing

the right to dissent and express divergent opinions. This right is essential for fostering open
debate, encouraging the exchange of ideas, and ensuring the representation of diverse
viewpoints within the legislative process. However, Section 2(b) of the 10th Schedule imposes
punitive measures on Members of Parliament who express dissent or vote against the party
line, thereby stifling honest disagreement and compromising the essence of parliamentary
democracy.

In the case of Ravi S. Naik v. Union of India, 1994 35, the Supreme Court held that the nature
and degree of inquiry required to be conducted for various contingencies contemplated by
Paragraph 2 of Schedule X may be different. Under Para 2(1)(a), the inquiry would be a limited
one. But the inquiry required for the purpose of Para 2(1)(b) may, at times, be more elaborate,
involving several factual aspects.

In the current case, the six Members of Lok Sabha, namely Amar, Sneha, Rahul, Neha, Vikram,
and Aisha, expressed their honest opinions in favor of the AI Bill by voting in its favor. They
believed that the passage of the AI Bill would benefit their respective constituencies and
address pressing issues affecting their constituents. However, despite their genuine belief in
the merits of the AI Bill, they were constrained by the issuance of a party whip, which directed
them to vote against the Bill.

Under the provisions of the Anti-Defection Law, specifically Section 2(b) of the 10th Schedule,
Members of Parliament are obligated to adhere to the directives their respective political parties
issued. Despite their sincere convictions and the interests of their constituents, the six Members
of Lok Sabha were compelled to vote against their conscience due to the imposition of the party

35
Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641; G. Viswanathan v. Hon'ble Speaker T.N. Legislative
Assembly, (1996) 2 SCC 353 ; Kihota Hollohon v. Zachillu, 1992 Supp (2) SCC 651 ; Balchandra L. Jarkiholi v.
B.S. Yeddyurappa, (2011) 7 SCC 1.

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whip. Due to their decision to prioritize the welfare of their constituents over party allegiance,
the six Members of Lok Sabha were disqualified from their positions in the Lok Sabha. This
disqualification, enforced by the Anti-Defection Law, highlights the punitive measures
imposed upon lawmakers who exercise their right to dissent and diverge from the party line.

In the minority judgement given by Justices L.M. Sharma and J.S. Verma stated that the power
of settling disputes should not rest with the Speaker 36.

In upholding the constitutionally protected right to dissent, it is essential to review section 2(b)
of the 10th Schedule. By striking down this provision, the judiciary would affirm democratic
principles, allowing Members of Parliament to freely express opinions without fear of reprisal.
Embracing the doctrine of severability, 37 the court can invalidate specific clauses while
preserving the integrity of the Schedule, ensuring legislative effectiveness while upholding
individual liberties and constitutional values.

36
2 Speaker A.G. Noorani, Constitutional Questions & Citizen's Rights 155 (2006).
37
The State Of Bombay vs R. M. D. Chamarbaugwala 1957 AIR 699

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ISSUE IV. Whether the speaker, while deciding the case under the 10th Schedule meet the
criteria of being an independent adjudicatory machinery.

It is humbly submitted before the Hon’ble Court that the decision rendered by the Speaker in
adjudicating the matter under the 10th Schedule of the Constitution lacks the essential attribute
of independence, thus failing to meet the criteria of independent adjudicatory machinery.
Justice Verma in Kihoto Hollohan v. Zachillhu and others 38judgment said that tenure of the
Speaker is dependent on the continuous support of the majority in the House and therefore, he
does not satisfy the requirement of such independent adjudicatory authority.
Also, his choice as the sole arbiter in the matter violates an essential attribute of the basic
feature.

4.1 The Speaker's engagement in perversity renders him unsuitable to serve as an

independent adjudicatory authority.

It is humbly submitted that, as held in the case of Kihoto Hollohan v. Zachillhu and others39
that the legal fiction in para 6(2) of the 10th Schedule and that of Article 105 is one to be
considered thus makes it justiciable on the ground of illegality or perversity .
The contention arises from the fact that the Speaker's decision to disqualify the six members of
the Lok Sabha was perceived as unreasonable and perverse. These elected representatives were
merely exercising their duties as the voices of their respective constituencies, acting according
to the interests of the people who elected them. By voting in favor of the AI Bill and deviating
from the party whip, they were fulfilling their obligation to represent the welfare of their
constituents.
The decision rendered by the Speaker, however, did not demonstrate a reasonable basis. It
failed to consider the legitimate rationale behind the actions of the six members of the Lok-
Sabha. The absence of reasoned justification for the disqualification indicates a departure from
the principles of fairness and impartiality expected from an independent adjudicatory authority.
Hence, it can be argued that the Speaker, in this instance, did not act as an independent arbiter

38Kihoto Hollohan vs. Zachillhu and others,1992 SCR (1) 686

39
Kihoto Hollohan vs. Zachillhu and others,1992 SCR (1) 686 ; Shyam Sundar Jhunjhunwala, AIR 1961 SC 1669
; Associated Cement Companies Ltd. v. P.N. Sharma, AIR 1965 SC 1595.

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but rather succumbed to partisan pressures, thereby undermining the integrity of the
adjudicatory process.

The interpretation of Schedule 10’s provisions requires members of a political party to follow
the party's directions when voting in parliament. The passage argues that interpreting "any
direction" too literally would undermine the role of elected representatives and make them mere
puppets of their parties, which goes against the democratic principles of the Constitution.
Instead, it suggests that this provision should be interpreted in a way that preserves the balance
between party loyalty and the independence of representatives. It highlights that while
members should generally follow their party's directives on crucial matters like confidence
motions or budgetary decisions, they should still have the freedom to vote according to their
conscience on other issues. This interpretation aims to maintain stability in the democratic
system while respecting the principles of parliamentary democracy.40

There were apprehensions of making the Speaker an adjudicatory authority under the Schedule,
and the same could be inferred from the comments of some of the members of Parliament was
debating the bill before the House at the time. They were concerned that theoffice of Speaker
would be drawn into avoidable controversies, as whatever actions the Speaker will take will be
deemed to be the actions of the House and in doing so, themembers of the House, will not be
able to say anything on the floor. Moreover, the Constitution provides for an independent
judiciary, an independent executive, and an independent legislature, but through this Bill, the
legislature is asked to perform judicial functions.41

4.2 The Speaker's actions stand in direct opposition to democratic principles.

It is humbly submitted that the tenure of the Speaker, who holds the authority to adjudicate
disputes under the Tenth Schedule, is contingent upon the continuous support of the majorityin
the House. This inherent dependency on political allegiance undermines the impartiality and

40
Kihoto Hollohan vs. Zachillhu and others 1992 SCR (1) 686; Shrimanth Balasaheb Patil and Ors. vs. Hon'ble
Speaker, Karnataka Legislative Assembly and Ors.SC/1558/2019 ; U.P. State Spinning Co. Ltd. v. R.S. Pandey and
Anr. MANU/SC/2467/2005; Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr.
MANU/SC/0044/1966.
41
G.C. Malhotra, ANTI-DEFECTION LAW IN INDIA AND THE COMMONWEALTH 1 (1st ed. Metropolitan
Book Co. Pvt. Ltd. 2005).
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independence required of an adjudicatory authority.42

“Democracy is a part of the basic structure of the Constitution , and free and fair elections with
provision for the resolution of disputes relating to the same as well as adjudication ofthose
relating to subsequent disqualification by an independent body outside the House are essential
features of the democratic system in our Constitution. Accordingly, an independent
adjudicatory machinery for resolving disputes relating to the competence of a Member of the
House is envisaged as an attribute of this basic feature. The tenure of the Speaker, who is the
authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support
of the majority in the House , and, therefore, he (the Speaker) does not satisfy the requirement
of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter
violates an essential attribute of the basic feature.43

The principle of separation of powers is a fundamental tenet of the Indian Constitution,

safeguarding against the concentration of power in any one branch of government. The
Speaker, as the head of the legislative branch, is entrusted with the crucial responsibility of
upholding the principles of democracy and ensuring the functioning of the House.

Moreover, the choice of the Speaker as the sole arbiter in matters of disqualification under the
Tenth Schedule violates an essential attribute of the basic feature of the Constitution. The basic
feature doctrine, established by the Supreme Court, safeguards the core principles and
structures of the Constitution from alteration or abrogation. By vesting the Speaker with
unilateral authority over disqualification proceedings, without adequate checks and balances,
the constitutional framework is compromised.

In the case of SA Sampath Kumar v. Kale Yadaiah and Others relating to the disqualification
of a Telangana MLA, the Supreme Court directed the Speaker of Manipur to rule on the
disqualification within three months.

The Supreme Court observed and questioned that “Why should a Speaker, who is a member of
a particularpolitical party and an insider in the House, be the sole and final arbiter in the cases

42
Kihoto Hollohan vs. Zachillhu and othes 1992 SCR (1) 686 ; Mayawati vs. Markandeya Chand and Ors.
(09.10.1998 - SC): MANU/SC/0647/1998; Md. Fajur Rahim and Ors. vs. The Hon'ble Speaker, Manipur
Legislative Assembly and Ors. (23.07.2019 - Manipur); MANU/MN/0125/2019.
43
Kihoto Hollohan v. Zachillhu and others 1992 SCR (1) 686.
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of disqualification of a political defector?”44

In conclusion, the Speaker's involvement in adjudicating disputes under the Tenth

Schedule of the Constitution falls short of embodying the essence of an independent
adjudicatory machinery. The evident absence of reasoned decision-making, coupled with
the Speaker's inherent reliance on political allegiance, casts serious doubts on fairness,
impartiality, and adherence to the principles of separation of powers. Such deficiencies
undermine the foundational pillars of democracy, eroding public trust and jeopardizing the
integrity of theadjudicatory process within the legislative framework.

44
S.A. Sampath Kumar vs. Kale Yadaiah and Ors. AIR 2016 SC 1647 ; Haryana Vidhan Sabha v. Kuldeep Bishnoi
and Ors. (2015) 12 SCC 381; Orissa Legislative Assembly v. Utkal Keshari Parida (2013) 11 SC.

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PRAYER

Wherefore, in the light of the issues raised, arguments advanced, and authorities cited, the
counsel humbly prays before the Hon’ble Court to adjudicate and declare that:

I The PIL filed by the Six MLA of IPA is Maintainable.

II The 10th Schedule of the Constitution to the extent it prohibits honest and genuine dissent
shall be declared as unconstitutional and the membership of the petitioner should be restored.
III The Speaker while deciding the case under the 10th Schedule does not meet the criteria of
being an independent adjudicatory machinery and the acti0ons of the speaker are arbitrary.

And/or

Pass any other order, writ, or direction which it deems fit in the interest of
justice, equity, and good conscience.

The counsel humbly bound ever pray.

All of which is humbly submitted.

~Counsel from Petitioners

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