ARGUMENTS ADVANCED

1. That the PIL Filed by the Six Membersofthe Lok Sabha of IPA is Maintainable.

It is contended that the present petition filed by the six members of Lok Sabha is IPA is
maintainable under the Ambit of Art. 32 of the Constitution of Zondia.

1.1 MAINTAINABILITY OF PIL UNDER ARTICLE 32 OF THE

CONSTITUTION

It has been contented that PIL is maintainable under Article 32 of the Constitution since
the Apex Court while Explaining the concept of Public interest litigation (PIL)in S.P.
Gupta v. Union of India1, a Seven-judge Bench of the Supreme Court ruled that “ any
member of the public or social group acting bona-fide” could invoke the writ jurisdiction
of the High Courts or Supreme Court, seeking redressal against violation of legal or
constitutional rights of person, who, owing to their poverty or social or economic or
other disability, could not approach the court for relief.

1.2 THE PETITIONER HAVE LOCUS STANDI

It is humbly submitted before the Hon’ble that the Public Insterstligitation filed by the
Six member of the Lok Sabha of IPA is maintainable and constitutionally valid. The
Apex Court in the Landmark case of KihottoHollhan v. Zachilhu&ors2,stated that the
decision of the speaker can be challenged on the grounds of violation of constitutional
mandate,malafide decision and non-compliance with the rule of natural justice.

The rule of Locus Standi States, the right to move the court for judicial redressal is
available to those whose legal right or legally protected interest, has been infringed. As it
has been stated in the case of Shivjirao N. Patilv.M.M. Gosavi3, where it has been held
that in an appropriate case, a private interest case can also be treated as a public interest
case.

In another case of Indian Banks Association v. D.C. Service, 4 the Apex court emphasized
that no rigid litmus test can be laid down for defining the rule of locus standi because
broad contours of PIL are still developing apace. Therefore, in the present case, the
petitioner is having the right of the locus standi because there has been a violation of
their fundamental right of freedom of speech and expression under Article 19 and
privilege under Article 105 of the Constitution.

1
AIR 1982 SC 149
2
AIR 1993 SC 412
3
AIR 1987 SC 294
4
AIR 2004 SC 2615
 In the case of Shri YengkhomSurchandra Singh v. The Hon´ble Speaker5, it was held by
the supreme court that speaker may evaluate the disqualification petition and can make
the decision regarding the disqualification petition, the court made clear that decision is
subject to judicial review.

In another case of Rajindra Singh Rana v.Swami Prasad Maurya6, Supreme Court
clarified that the disqualification of a member under the anti defection law can be
challenged only after speaker/chairman has taken a decision on the disqualification
petition.

In Md. Fajur Rahim v. Hon’ble Speaker7, Manipur Legislative Assembly, the Court in its
verdict held that when the Speaker fails to discharge his Constitutional obligation due to
deliberate inaction and the members are found to have incurred prima facie
disqualification under the Schedule, the Court cannot be expected to sit as a mere
spectator and ought to come to the rescue of the intention of the lawmakers, and perhaps,
protect the ultimate goal of the law

1.3 EXTRA-ORDINARY CIRCUMSTANCES FOR INVOCATION OF THE

PUBLIC INTEREST LITIGATION(PIL)

The Apex Court in Balco Employees’ Union (Regd) v. Union of India8, laid down the
parameters for the invocation of the remedy by the way of PIL. The court observed that;

 Where the concern underlined a petition are not individualist but are shared
widely by a large number of people.
 Where the affected persons belonged to the disadvantaged sections of society
 Where judicial law-making is necessary to avoid exploitation
 Where judicial intervention is necessary for the protection of the sanctity of the
democratic institution
 Where administrative decisions related to development are harmful to the
resources such as air or water.

As stated in above mentioned case judicial intervention is necessary for the

protection of the Sanctity of the democratic institution, so their disqualification
which was done for the non-compliance of the whip issued by the party is violative
of their Fundamental rights provided to them under Article 19 and Privileges under
5
WP(C) No.316 of 2020
6
Appeal(civil)765 of 2007
7
2020 (4) GLT 1036
8
AIR 2002 SC 350
 article 105 is invalid since the right to vote of a parliamentarian in favor of his
constituency on a bill is one of the basic features of the democracy as they represents
the people who chose him as there representative.

In the case of Express Newspaper Ltd. v. Union of India9, the court propounded that
the In the Indian constitutional dispensation the power to decide a disputed
disqualification of an elected Member of the House is not treated as a matter of
privilege and the power to resolve such electoral dispute is clearly judicial and not
legislative in nature. The power to decide disputed disqualification under Paragraph
6(1) is pre eminantly of a judicial complexion.

2. That the 10th Schedule of the Constitution prohibiting honest and genuine dissent
deserve to be declared unconstitutional.

It is submitted that the 10th of the Constitution curbs honest and genuine dissent since it is
an inherent feature of the democracy that an elected official is accountable to his
constituency even after he has been voted to the office. His Constituency keeps him
accountable for their votes and actions during his next term re-election campaign.
Paragraph 2(1)(b) undermines their accountability as all his actions and decisions can be
explained solely on the basis that the directives of the political party and the bond between
the parliamentarian and his constituency is broken. Accountability is the foundation of the
republican political system, i.e. those in the position of the governmental power must be
responsible for those on whom the authority is exercised. Paragraph 2(1)(b) only adds fuel
to the contrary, because the leaders of the political parties are merely operating on their
parties' whims which limit there action to a greater degree and hence,displayed little
responsibility to the house and the replo they serve10.

Law does not provide sufficient incentive for an MP or MLA to examine an issue in-depth
and think through it. With issues of a whip, a member of a legislature is in effect reduced to
a mere voting number in the house. He will finally have to obeyed the position of the party
leadership. A free exchange of ideas debate and dissent within the political parties is
curtailed. As observed in various scenario MPs oppose a bill on the floor of the House
during there speech, but following in line to vote in according to party.

In India MPs often considered there primary function to obey the decision of the party
leadership. They are not seen as lawmakers many a times the people in the constituencies
are unaware of there bills there associated with and they are seldom judeged on there policy
accomplishment.
9
AIR 1958 SC 578
10
Trina Roy, Parlimaent Logjam (Part 8)..Anti-defection law must be curbed to impower legislature,promote
deliberative democaracy,https://www.firstpost.com/india ,Accessed on 18th April, 2024.
 2 Main Basir Ahmad v State of Jammu and Kashmir11. Earlier the term popular for
defection was horse trading but now the meaning has galvanized with political color and is
defined as a situation or act where a legislator who had been allotted a reserve seat of any
political party defected voluntarily, renouncing association with such Party.

The Hon’ble Supreme Court in the Landmark judgment of KeshnanadaBharati v. State of

Kerala12and Indira Gandhi v. Raj Narain13 has settled beyond dispute that democracy is a
basic feature of the Constitution in Parliamentary democracy it is possible that members
belonging to same political parties may likewise have contrasts feeling on an issue. A
member may not agree with the view of this party because of this closelyheld conviction or
due to its exceptional ramifications for his constituency.

The Attack against paragraph 2(1)(b) is that it destroys the democratic setup as it denies the
privilege of freedom of speech, the right to dissent, and the freedom of concise which are
basic features of the Constitution.

In the case of U.N.R Rao v. Indira Gandhi14, it was held that legislatures under such
situations have no choice,there dissent is seen as an act of the deviation against the party
ideologies, and violation of the whip results in disqualification.

In case of D. Sudhakar v. DN Jeevaraju15 and Ors, the SC set aside the speaker's decision as
it violated the principle of natural justice9

3. That Paragraph 2(1)(b) of the 10th Schedule infringes upon Privileges outlined in
Article 105 of the Constitution.

It is humbly contended before the Hon’ble Court that Paragraph 2(1)(b) of the 10th Schedule
has infringed upon the privileges outlined in Article 105 of the Constitution which were
conferred to the petitioner as a member of LokSabha.
1. Subject to the provisions of the constitution and to the rules and standing order
regulating the procedure of parliament, there shall be freedom of speech in the
parliament.
2. No member of the parliament shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the parliament or any
committee thereof, and no person shall be liable in respect of the publications by or

11
A.I.R. 1982 J&K 26
12
AIR 1972
13
AIR 1975
14
AIR 1971 2 SCC 63
15
(2012) 2 SCC 708
 under the authority of either House of the Parliament of any report, paper, votes or
proceedings.
3. The paragraph 2(1)(b) of the 10th Schedule of the constitution provides for the
disqualification of the members of the house of the parliament for voting or
abstaining from voting against the party guidelines.
4. The term “any direction” used in paragraph 2(1)(b) of Schedule 10 of the
constitution has limited the parliamentary freedom of the Legislatorto vote solely on
the basis of conscience.
5. In the Landmark case of KihotoHollohan v.Zachilhu&ors, the Apex court while
interpreting the words of paragraph 2(1)(b) of the 10th Schedule emphasized that
“we approve the conclusion that these words require to be construed harmoniously
with the other provisions and appropriately confined to the objects and purposes of
the 10thSchedule”.
6. It has been observed in India that mass-member political parties' dominance in the
electoral process, each of which expect all its members to lead the party line once
they are a part of the parliament, has undermined, the distinction between the
government and the parliament.
7. It has been contended so far as the issues of the whip is concerned it is not governed
by any law. Neither the Rules framed under the 10th Schedule nor the Rules of
Procedure and Conduct of Business in the Lok Sabha, Council of States provide for
or regulate the issues of whip.
8. It is undoubtedly desirably that the whip is issued only when the voting in the house
affects the continuance of government and not on each and every occasion. Such a
course would safeguard both the party discipline and the freedom of speech and
expression of the members.
9. Furthermore, In the case of Amar Singh v. Union of India16, the court defined the
term whip, it refers to the chief of the political groups who goes about as the party’s
“master” inside the legislative assembly or house of parliament, who is answerably
for the party’s discipline and conduct on the floor of the house.
10. In the case of G.Viswanathanv.The Hon´ble speaker Tamil17, it was held that the
anti-defection law did not apply to independents and only covered party members.
11. The landmark case of Bond v. Floyd18 was among the first to elucidate upon the
rights of a legislator in the House. The right of freedom of speech and vote was held

16
AIR 2017 SCC Online SC 405
17
AIR1996 SC1060
18
Bond v. Floyd :: 385 U.S. 116 (1966) :: Justia US Supreme Court Center.
 to be necessary in order for the legisalator to freely participate in discussing policies
of governance.
12. In the present scenario, the non-compliance of the whip which was issued that led to
the disqualification of the petitioners from the Lok Sabha has infringed upon their
privileges under Article 105 of the Constitution, which were conferred to them as
members of Lok Sabha as it took away their right to vote freely in the parliament.
The right to vote is one of the basic features of a representative democracy.
13. The anti-defection law had the main objective of outlawing the political evil of
defection which had become a matter of national concern when it was introduced,
but in the present case the petitioners had no intention to leave the party, they went
against the whip issued by the IPA just because they thought that the bill on the
Regulation of Artificial Intelligence(AI) Bill, 2024 was in favor of benefit of their
constituency. So the disqualification that took place due to non-compliance with the
whip issued by the political party is invalid, firstly, it violates the parliamentary
privileges provided to them additionally it also does not fulfill the objective of anti-
defection law i.e. to prevent the defections.
14. In the case of Madan Mohan Mittal v/s State of Punjab19, the speaker did not incur
the disqualification as he recognized the fundamental differences on political and
ideological issues with the leadership of the said party, such differences were in the
interest of the state.
15. People's Union for Civil Liberties vs. Union of India20,with reference to paragraphs
94, 96 and 97 thereof it was submitted that the Supreme Court has recognised the
right of an electorate to vote for the candidate of his choice which is the essence of
the democratic politic. He thus submits that even though the right to elect is a
statutory right under the Act, the expression which is translated into a vote is a
constitutional right guaranteed under Article 19(1) (a) of the Constitution of India.
4. That the Speaker while deciding the case under the 10th Schedule meeting the criteria
of being an independent adjudicatory machinery.

19

20
(2004) 12 SCC 104
 1. It is submitted before the Hon'ble Court that the Spekear by virtue of the 10th
Schedule is enabled to decide the matter of disqualification of members of the
House of Parliament under the provisions of Article 102(2).
2. A person shall be disqualified for being a member of either house of the parliament
if he is so disqualified under the 10th Schedule. In the current matter the speaker
acted as an deciding authority in accordance with the rule of the 10th Schedule, The
Supreme court in the case of Jaggit Singh v. State of Haryana raised an allegation on
the lack of confidence in the role of the speaker in the matters of impartiality.
3. Independence and Impartirly of the Speaker sine qua non of the speaker’s office as it
is vested with great prestige, position and authority. However, the office of the
speaker has been criticized over and over for being an agent of partisan politics.
4. The entire facet of fair and just decision by any judicial or quasi-judicial is based on
the central premise of Impartiality. However, under the 10th Schedule of the
Constitution, this idea of impartiality is sometimes misplaced because of the
political and factional affiliation of the speaker of the house, who is also under a
constitutional duty to act in a just and reasonable manner while taking decisions
under the 10th Schedule.
5. Furthermore, the speaker is held in very high esteem and respect due to inherent
historically reasons in the concept of parliamentary democracy, it is believed once a
person is elected as a speaker, the expectation I that he is above nuances of the party
and politics but this is not the case in most of the actual scenario.
6. As any other authority, the most essential aspect of the speaker is his impartiality;
without which a speaker cannot do justice he holds and as long as he remains a
member of the political party, he cannot be regarded as an impartial person. In India,
the problem is deeply than he appears to be
7. The minority in the case of KihottoHollhan v. Zachilhu&ors, had questioned the
independence of the speaker to conform such wide powers upon him in the
following words: “ An independent adjuratory machinery for resolving disputes
relating to competence members of the house is envisaged as an attribute of the
democratic system which is the basic feature of the constitution. The tenure of the
speaker. Who is the authority in the 10th schedule to decide this dispute, is dependant
on the continuous support of the majority in the house and, therefore, he 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”.
8. In the case of NabamRebia v. Registrar, Gauhati High Court is another case that had
raised doubt about the impartiality of the speaker.
9. In KeishamMeghachandra Singh v. The Hon´ble Speaker,Manipurleagislative
Assembly21, it was held that the speaker was expected to discharge his constitutional

21
Civil Appeal No.547 of 2020
 duty of determining disqualifications under 10th schedule as a neutral arbiter and rise
above party lines in pursuance of his constitutional obligation.

RESPONDENT SIDE

1. That the PIL Filed by the Six Members of the Lok Sabha of IPA is not
Maintainable?

It is humbly submitted before the Hon’ble court, the speaker, while deciding the
matter under the 10th Schedule has not acted beyond the four corners of law. Article
102(2) provides for a decision-making mechanism for the disqualification of
members under this sixth paragraph of Schedule Tenth.

1. If any question arises as to whether a member of a house has become

subject to disqualification under this schedule, the question shall be referred
for the decision of the Chairman or, as the case may be, the Speaker of such
House, and his decision shall be final. The court has no jurisdiction to
entertain the present suit and the very reason for this, is because the speaker
while giving the decision of disqualification of the petitioners, the speaker
has acted within the purview of the law.
2. The speaker's decision is final in the petition regarding the disqualification
of the member of the house. Paragraph six of the schedule of the tenth
specifically mentions that the decision of the speaker is final when any
question arises as to whether a member of parliament has become subject to
disqualification or not. In the present case, the speaker has acted within the
power granted to him under paragraph sixth of the tenth schedule.
3. The petitioners in this case have acted against the feature of unity and
shared belief of the political party which led to the disqualification of the
petitioners, and they were disqualified on the grounds of voting against the
whip issued by their political party. In today’s democratic scenario a
political party functions on the strength of shared belief and loyalty towards
the party. The divided party is looked upon with suspicion and voting
against the whip issued by the political party is disloyalty.
4. The procedure followed by the speaker is also sound the petitioners despite
being knowing the fact that non-compliance of the whip issued by the party
will lead to their disqualification and still they went ahead with it.
5. Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad22, Shri Prasad defied a
party whip requiring him to be present in the House. In his defence, he

22
4 (October 3, 2008)
 denied that any whip was issued or served. The Speaker held that in view of
the fact that there is evidence to show that the whip had been delivered to
Shri Prasad’s house, and had been duly received, it cannot be said that Shri
Prasad had no knowledge of the whip
6. In the case of Ibid, The Hon’ble Court has held that the decision of the
speaker regarding the disqualification can be challenged in a court of law
when the speaker has not acted in any of these capacities, which enables the
petitioners to challenge the speaker's decisions in the court.
7. Paragraph 2(1)(b) provides for the disqualification of the member of the
house who vote or abstain from voting contrary to “any direction” issued
by the political party. This provision also recognizes expectations; one,
when the member obtains prior permission from the political party to vote
or abstain from voting, and the other when the member has voted but his
actions has been condoned by the political party.
8. In the present case both the above-mentioned expectation did not took place
so the speaker's decision is valid and this court do not have the jurisdiction
to entertain the petitioner of petitioners considering the facts that the
speaker has followed all the procedural nuances and acted within four
corners of law and he has also not violated any provisions laid down in the
Ibid case. The petitioners cannot bring the speaker's judgment into question
and thus The PIL filed by the six members of the Lok Sabha of IPA is not
maintainable.
9. In the case of Shri. Koya P vs The Administrator23, Dr. Koya defied the
party whip requiring him to vote against the motion for confidence for the
government, in this case, it was held that there has been a sufficient reason
to satisfy the speaker regarding the non-compliance of the whip.
10. Ravi S.Naik vs Union of India 24 the SC has given wider interpretation to the
"voluntary give up membership" and held that conduct of an individual can
be considered while deciding the question of disqualification under this
schedule.
11. Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National
Congress, The Speaker held that a person getting elected as a candidate of a
political party also gets elected because of the ideology of the party
23
AIR 2007 SC
24

1994 AIR 1558, 1994 SCR (1) 754

 12. In the ZachilhuKhusantho v. State of Nagaland25, it was held that the, Its not
every violation of every rule which call upon or require the court to strike
down the order of a the speaker,whether the court is to struck down on the
ground of violation of a rule would depend on host of circumstances such as
nature and significance of the rule the conduct of the writ petitioners,
prejudice caused to them, etc.
13. In the case of Ibid, the court laid down certain Conditions for judicial
review of the decision of the speaker, in February 1992 judgment has said
that even the scope of judicial review against an order of a Speaker or
Chairman in anti-defection proceedings would be confined to jurisdictional
errors, that is, “infirmities based on violation of constitutional mandate,
mala fides, non-compliance with rules of natural justice and perversity. The
present case does not fulfill any of the above conditions for the judicial
review so the decision of the speaker can’t be questioned in the court.
14. The Latin phrase “Stare Decisis” which means “To stand by decided cases;
to uphold precedent; to maintain former adjudication”. The principle is
expressed in the maxim “stare decisis et non-quieta movers” which means
to stand by the decision and not to disturb what is settled and as stated in
Article 141 of the constitution “The law declared by the Supreme Court
shall be binding on all courts within the territory of India”.
15. The following matter of jurisdiction has already been settled in the case of
Ibd, so in the instant case revisiting the matter may be a waste of the
precious time of the Hon’ble Supreme Court and it is contended by the
respondent that the present matter should not be entertained.
2. That the 10th Schedule of the Constitution prohibiting honest and genuine
dissent deserve to be declared constitutional.

1. It is most respectfully submitted before the Apex court, that the presumption
is in favor of the constitutionality of the statute and the onus to prove that it
is unconstitutional is on the person who is challenging it. The statement of
objectives and reasons which was adopted as the constitution(Fifty-second
amendment, Act 1985) says, “ The evil of the political defection has been a
matter of national concern. If it is not combated it is likely to undermine the
very foundation of democracy and the principles which sustain it. With this
objective and assurance was given in the address by the President to
Parliament that the governmentintended to introduce in the current session
of the parliament an Anti-defection bill.

25
AIR
2. This bill is meant for outlawing defection andfulfilling the above
assurances. The objective is to curb the evil of political defection motivated
by the lure of office or other similar considerations which endangered the
very foundation of our democracy. Grounds of disqualification are specified
in paragraph two of the tenth schedule. In terms of para two, the 10th
schedule the act of disqualification occurs on a member voluntarily given
up his membership of a political party or at the point of defiance of whip
issued to them.
3. Supporting the constitutionality creates a non-justiciable constitutional area
dealing with certain complex political issues that have no strict
adjuctionarty disposition by the introduction of this schedule due rights and
obligations were created for the first time uno-faltu by constitution and the
constitution itself has envisaged a distinct constitutional machinery for
resolution of those disputes these rights,obligations and remedies, it is
urged, which is in their very nature and innate complexities are in the
political thickets and are not amenable to judicial process

4. It has been held by a 3:2 majority in the case of IDID that the provisions of
the Tenth Schedule were not violative of the freedom of speech, vote, and
conscience of the member. Such provisions in the view of the court are
intended to strengthen the fabric of Indian parliamentary democracy by
curbing unprincipled and unethical political defections it is said that the
freedom of speech of a member is not an absolute freedom. Freedom is
subject to provisions of the constitution and the rules and standing orders
regulating the procedure of the house.

5. The speakers was in accordance of the law has acted within its scope of
authority, the speaker after careful examination disqualifies the six members
of the Lok Sabha, keeping in view the consequences of disqualification i.e.
the termination of membership of the house if a person votes or abstains
from voting contrary to the direction of the party as provided by para 2(1)
(b) of the tenth schedule.

6. The tenth schedule is functioning as expected by its drafters. Thus, the tenth
schedule must be held constitutional. Also, the majority view in IBD case is
that in the absence of ratification by the state legislature, it is para seven
also of the tenth schedule which is unconstitutional, and it is severable from
the remaining part of the schedule.

7. Para seven alone is liable to be struck down rendering the speaker decisions
under para six that a judicial tribunal amenable to judicial review by the
 Supreme Court and the high court under article 126,226,227 also our statute
cannot be struck down merely because the court thinks it to be arbitrary or
unreasonable.

8. Any ground of such liability much be related to a constitutional provision

such as article 14,19 or 21. challenge on the ground of wisdom of
legislation is not permissible a it as for the legislature to balance various
interests.Keeping in view, all the aforementioned contentions of the
respondent, the tenth schedule does not prohibit honest and genuine dissent
and thus can’t be declared unconstitutional.

9. E.Y.Royypa v. State of Tamil nadu, namely that "from a positivistic point of

view, equality is antithetic to arbitrariness. In fact equality and arbitrariness
are sworn enemies, one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Article 14.

That Paragraph 2(1)(b) of the 10th Schedule does not infringe upon Privileges outlined
in Article 105 of the Constitution.

It is submitted before the Hon'ble Court, that the allegations regarding the violation of the
constitution provision should be specific, clear and unambiguous and it is for the person who
impeaches the law as a violative of the constitution guarantee to show that the provisions are
infirm for the reason stated by him. Article 105 of the constitution provides for parliamentary
privileges to the members of Lok Sabha and RajyaSabha. The parliamentary privileges conferred
under this part;

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.
and no person shall be so liable in respect of the publication by or under the
authority of either House of Parliament of any report, paper, votes or proceedings
Section 2(b) of Schedule 10 of the constitution provides for the disqualification of
the members of the houses of the parliament for voting or abstaining from voting
against the party guidelines.
3. Paragraph 2 of the 10th schedule to the constitution is valid. Its provisions do
not suffer from the vice of subverting the democratic rights of elected members of
the parliament and legislators of the state. It does not violate their freedom of
speech, freedom of vote, and conscience.

4. The provisions of paragraph 2 do not violate any right or freedoms under article
105 of the constitution.The reasoning for the Honorable Supreme Court
Pronunciation of such a decision can be seen through the various facets of the legislation
and the constitution itself.
5. The anti-defection law had the main objective of outlawing the political evil of
defection which had become a matter of national concern when it was introduced.
The drafters of the bill contented that if this political evil was not combated it was
likely to undermine the very foundations of our democracy and the principles
which sustain it.
6. It is an observation that the political parties issue whips only when the
government is in danger.
7. This substantiates the above stated legislative intent which sought to introducethis
bill to curb the evil of political defections. This legislation does not seek to curb the
freedom of speech of the members of the parliament but only seeks to give the
government reasonable stability to carry out the functions it has promised to the
electorate. So far as the right of a member under article 105 is concerned, it is not an
absolute one and has been made subject to the provisions of the constitution and the
rules and standing orders regulating the procedure of parliament.
8. The framers of the constitution, therefore, never intended to confer any absolute
right of freedom of speech on a member of parliament and the same can be
regulated or curtailed by making any constitutional provision, such as the 52nd
amendment. The provisions of para 2(b) cannot, therefore be termed as violative of
the provisions of Article 105 of the constitution.
9. As already mentioned here above, the intent and objective of the 52nd amendment
was to curb the evil of political defections, outlawing the same and providing a
stable and healthy government which is an essential part of democracy.
Antithetically, the intent of the drafters of the constitution while embedding article
105 in the constitution was mainly to protect the members from innumerable cases
of defamation and sedition by virtue of words said by them in the parliament with a
view of fairly representing their constituents. Thus, it can be construed that the two
provisions of the constitution run parallel to each other, while not crossing
over/Violating at any point.
10. The court must follow the rules of harmonious construction which is the thumb rule
to interpretation of any statute. An interpretation which makes the enactment a
consistent whole should be the aim of the court and a construction which avoids
inconsistency between the various sections should be adopted.
 11. in the case of Keshav Singh vs Speaker, Legislative Assembly And Ors. 26It was
mentioned that immense powers of parliamentary privilege given to members of
House are controlled by the provisions of the written Constitution
12. The provisions of one section cannot be used to defeat the provision contained in
another unless the court, despite all its efforts, is unable to find a way to reconcile
their differences. When it is impossible to completely reconcile the differences in
seemingly contradictory provisions the court must interpret them in such a way so
that effect is given to both the provisions as much as possible. Courts must also keep
in mind that interpretation that reduces one provision to a useless number or dead is
not harmonious construction.
13. In the case of Jyoti Basu & Ors. v.Debi Ghosal & Ors 27, the court contented that,The
Tenth Schedule does not impinge upon the rights or immunities under Article 105(2)
of the Constitution. The freedom of speech of a Member is not an `absolute
freedom. That apart, the provisions of the Tenth Schedule do not purport to make a
Member of a House liable in any "Court" for anything said or any vote given by him
in Parliament.
14. Railway Board, New Delhi v. Niranjan Singh,28and some other cases to stress that
the legislator does not carry with him his fundamental right of freedom of speech
and expression, guaranteed under Article 19(1)(a), to the legislature, on his election
and that the freedom of speech and expression that he enjoys in the legislature is a
privilege given to him by the Constitution.
15. In the case the case held that the,K. Anandan Nambiar And Another vs Chief
Secretary, Government Of Madras, ,Besides, the freedom of speech to which~
Article 105 (1) and (2) refer, would be available to a Member of Parliament when he
attends the session of the Parliament. If the order of detention validly prevents him
from attending a session of Parliament, no occasion arises for the exercise of the
right of freedom of speech and no complaint can be made that the said right has
been in-validly invaded.

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

4.1.1 It is contended that the speaker while deciding the matter does satisfy the
condition of an independent adjucatory machinaery. The speaker while
virtue of the tenth schedule is enabled to decide the matter of
disqualification of members under the provision of the article 102(2) of the
constitution.

26
AIR 1965 SC 745.
27
[1982] 3 SCR 318
28
AIR 1969 SC 966
 4.1.2 Disqualifications for membership A person shall be disqualified for being
a member of either House of Parliament if he is so disqualified under the
Tenth Schedule The speaker while deciding the current matter under the
10th schedule, has acted in accordance with the rules of Schedule 10.
Under para 6, the final authority to take a decision on the question of
disqualification of a member of the house rests with the speaker or
chairman of the house.
4.1.3 The Role of the speaker in the domain is to ascertain the relevant facts.
Once the facts gathered or placed show that a member of a house has done
any such act which comes under the purview of the para 2(1)(b) of the
schedule, the disqualification will apply and the chairman or the speaker of
the house will have to make the decision to that effect.
4.1.4 In the case of Mahachandra Prasad Singh vs Chairman, Bihar Legislative
Council29, it was held that the position of the speaker under the
constitution is interpreted in the terms of the “ High tradition” of the “
High position” of his office and it is presume that the speaker would
discharge his duties in an unbiased manner, above all political and fictional
consideration.
4.1.5 In “SrimanthBalasahebPatil v. Speaker, Karnataka Legislative
Assembly30,25the Supreme Court clarified that the Speaker has the power
to disqualify members under Para 2(1) of the Tenth Schedule but does not
have the authority to bar them from contesting elections for the current
term of the house. The individuals who are part of the legislative body
possess an absolute entitlement to
5. In the case of BalchandraJarkholi vs B.S.Yeddyurappa31, it was held a very wide power are
entrusted upon the speaker under the constitution. The role of the speaker under the
constitution is administrative, executive, and even adjudicatory, he sits as an impartial
adjudicatory body in all disqualification proceedings against the member of the house on
the grounds of the defection under the 10th schedule to the constitution of India.
6. The 10th schedule under paragraph 6(1) imparts that the decision of the speaker in the
disqualification proceeding is final and the same has been upheld in the case kihotohollohon
vs zachilhu(1992) Supp(2) SCC 651.
7. In addition to this, within the walls of the house, the speaker’s authority is supreme, and
such supremacy is based on the speaker’s unwavering and absolute impartiality-the main
feature of his office, the law of its life. This obligation of impartiality is reflected in the
provisions which ordain that the speaker is entitled to vote only in the case of
equality of votes.
29
AIR 2004 8 SCC 747
30
(2020) 2 SCC 595
31
AIR 2011 7 SCC 1
 8. It would indeed, be unfair to the high traditions of that great office to say that the investiture
in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is
inappropriate to express distrust in the high office of the speaker merely because some of
the speakers are alleged or even found, to have discharged their functions not in keeping
with the great traditions of the high office the robes of the speakers do change, and
elevate the man inside.
9. It is held in the case of KihotoHollohan vs Zachillhu and Ors, that, “The contention that the
vesting of adjudicatory functions in the speakers/chairmen would by itself vitiate the
provision on the grounds of the likelihood of political bias is unsound and is rejected. The
speakers/chairmen hold a pivotal position in the scheme of parliamentary democracy and
are guardians of the rights and privileges of the house. They are expected to and do take far-
reaching decisions in the functioning of parliamentary democracy. Vestiture of power to
adjudicate questions under the tenth schedule in such constitutional functionaries should not
be considered exceptionable.”

Raja Ram Pal v. Hon’ble Speaker, Lok Sabha 32,where the Supreme Court reiterated that
Speaker is specially designated authority to decide about the rights and privilege of the
members of the House including issues related to disqualification and any such decision are not
subject to approval of the House.

1. .By the virtue of the 10th schedule the speaker has been granted the power to decide the
matters of the disqualification of members on the basis of defiance of the whip issued by
the political party in the current case,a whip was issued by the IPA president, wielding the
authority of his office. The whip pertained to demanding unwavering alligenance to the
party line and to vote against the bill presented by BNA in the parliament. The petitioners
went against the party whip and choose to vote according to their own wishes. In the view
of this, the IPA president forwarded a petition requesting the disqualification of the six
members of the Lok Sabha to the Speaker. The respondent considered the above petition
and took into account all the above mentioned facts and gave his completely unbiased
judgement he cancelled the membership of the six member of the Lok Sabha after careful
examination. He has acted completely within the ambit of his authority and jurisdiction and
has given a suitable judgement. Inferring from the above two judgment, the speaker has
acted in the scope of the powers granted to him by the constitution and has given his
judgment in accordance with that. The respondent, as stated above, holds an office of high
importance and one which is traditionally known to be unbiased and impartial. Thus it can
be reasonably construed that he has indeed satisfied the conditions required to be an
independent adjudicatory machinery and has also acted within the scope given by it.
2. In the case of Associated Cement Companies Ltd. v. P.N. Sharma and Anr Where there is a
lis-an affirmation by one party and denial by another-and the dispute necessarily involves a
decision on the rights and obligations of the parties to it and the authority is called upon to
32
5 (2007) 3 SCC 1
 decide it,there is a exercise of judicial power. That authority is called a Tribunal, if it does
not have all the trappings of a Court, By these well-known and accepted tests of what
constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth
Schedule is a Tribunal33.

33
[1965]2 SCR 366.