TC 60 Respondent

TEAM CODE: 60
1ST LEXOSPHERE NATIONAL MOOT COURT

COMPETITION, 2024
BEFORE THE HON’BLE SUPREME COURT OF
ZONDIA
IN THE MATTER OF ARTICLE 32 OF THE
CONSTITUTION
WRIT PETITION NO. / 2024
AMAR & ORS...............................................................................PETITIONER

V.
HON’BLE SPEAKER OF LOK SABHA................................................RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENTS

1ST LEXOSPHERE NATIONAL MOOT COURT COMPETITION, 2024
TABLE OF CONTENTS
S. TABLE OF CONTENTS PG.

NO. NO.
1. LIST OF ABBREVIATIONS 4
2. INDEX OF AUTHORITIES 5-7
3. STATEMENT OF JURISDICTION 8
4. STATEMENT OF FACTS 9-10
ISSUES RAISED 11
6. SUMMARY OF ARGUMENTS 12-13
7. ARGUMENTS ADVANCED 14-29
7(A). ISSUE I: WHETHER THE PIL FILED BY SIX MEMBERS OF LOK 14
SABHAOF IPA IS MAINTAINABLE OR NOT?
A. The Speaker has powers for deciding cases of defection as

provided by Schedule X of the constitution.
i. That the Speaker has the finality of decision-making
in the petition of Disqualification.
ii. That there is no violation of the Principles of Natural
Justice.
B. The Supreme Court has the power of judicial review in
decisions given by the Speaker only in exceptional cases.
C. There is no violation of Right to Dissent of Six Legislative
members.
D. The act of the Speaker is in the ambit of the principles of
democracy.
7(B). ISSUE II: WHETHER THE 10 SCHEDULE OF THE CONSTITUTION 18
PROHIBITING HONEST AND GENUINE DISSENT DESREVED TO
BE DECLARED UNCONSTITUTIONAL?
A. The 10th schedule was introduced to curb evil political
defections and give the government stability.
B. It does not prohibit members' dissent.
C. Thus the 10th schedule doesn't deserve to be declared as
unconstitutional.
7(C). ISSUE III: WHETHER SECTION 2(B) OF THE 10TH SCHEDULE 21
VIOLATES PARLIAMENTARY PRIVILEGES PROVIDED UNDER
ARTICLE 105 OF THE CONSTITUTION?
A. It may humbly be submitted that the freedom of speech and
expression which has been granted under article 105 of the
Constitution of Indiana has not been infringed and has only
been restricted in public interest.
B. The intent of creating the 10th schedule in 1985 and the
insertion of Article 105 in the constitution can be seemingly
similar but actually are very different and thus the two
provisions run parallel to each other.
C. Also the two at no point cross over as one talks about defying
party whips in crucial time whereas the other gives the
members of parliament privileges to speak freely in the
legislature. Thus they are not violative and should not be
struck down.
7(D). ISSUE IV: WHETHER THE SPEAKER WHILE DECIDING THE 26

CASE UNDER THE 10TH SCHEDULE MEETING THE CRITERIA OF
BEING AN INDEPENDENT ADJUDICATORY MACHINERY?
A. It is humbly submitted before the Hon’ble Court of that the
B. speaker while giving decision under the 10th schedule has
acted within the scope of power granted to him by virtue of his
office.
C. It is humbly submitted that the speaker holds a pivotal
position in the scheme of parliamentary democracy and are
guardians of the rights and privileges of the house
D. While acting as a judge and deciding the case of
disqualification of the member, the speaker has acted within
his powers
E. Thus the speaker has satisfied the requirements of an
independent adjudicatory machinery.
8. PRAYER 30
LIST OF ABBREVIATIONS
ABBREVIATION ACTUAL TERM

& And
AI All India Reporter
R Another
Anr. Article
Art. Clause
cl. Council of Ministers
CO High Court
M Honorable
HC Number
Hon’ble Others
No. Supreme Court
Ors. Supreme Court Cases
SC Supreme Court Reporter
SC Under Article
C Under Section
SC Union of India
R Versus
u/a
u/s
Uo
I v.
Page|4
MEMORIAL for RESPONDENTS
INDEX OF AUTHORITIES
TABLE OF CASES
Brundaban Nayak v. Election Commission of India and another, (1965) 3 SCR 53...............15
Commissioner of Income Tax vs. Ajax Products Ltds.............................................................25
Dr Kashinath G Jalmi and Another v. The Speaker And Others, (1993) 2 SCC 703..............16
Harinagar Sugar Mills Ltd. v.Shyam Sunder Jhunjhunwala & Ors., AIR 1961 SC 1669.......16
Jagit Singh v. State of Haryana and Ors., 1992 SCC OnLine P&H 1284................................15
Kesavananda Bharti vs. State of Kerala...................................................................................25
Kihoto Hollohan v. Zachillhu, (1992) 1 SCC 309....................................................................16
Mahachandra Prasad Singh v, Chairman, Bihar Legislative council, (2004) 9 SCC 747........19
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.............................................................15
Mannadi Satyanarayan Reddy v. Andhra Pradesh Legislative Assembly and Ors., (1993) 2
SCC 287................................................................................................................................14
Orissa Legislative Assembly vs. Utkal Keshari Parida............................................................22
Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha........................................................................24
Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors., AIR 2007 SC 1305..........16
Ram Nandan Singh vs. State of Bihar......................................................................................28
Ramesh Thapar vs. State of Madras.........................................................................................27
Ravi S. Nayak v. Union of India and Ors, 1994 Supp. (2) SCC 641.......................................15
Ravi Yashwant Bhoir vs. District Collector, Raigad & ors,.....................................................26
Shri. Rajeev Ranjan Singh (Lalan) vs. Dr. PP Koya JD(U),....................................................23
Shri. Rajesh Verma vs. Shri. Mohammad Shahid Akhlaque, BSP..........................................24
Virendra vs. State of Punjab.....................................................................................................28
Yarlagadda Venkateshwara vs. Government of Andhra Pradesh............................................24
REPORTS
1. Subhash C. Kashyap, Parliamentary Procedure : Law, Privileges, Practice and

Precedents 779 (3 Edn., 2014)
2. Government of India, Report of the Committee on Electoral Reforms, May 1990
Page|5
3. ECI, Proposed Electoral Reforms, D.O. No. 3/ER/2004 (2004) (hereinafter “ECI 2004
Reforms”).
4. Report of the National Commission to Review the Working of the Constitution
(hereinafter “Ncrwc Report”)
CONSTITUTIONAL PROVISIONS
1. INDIA CONST. art. 32

4. INDIA CONST., art. 105
BOOKS
1. D.D. BASU, DR. S.S. SUBRAMANI, D.D. BASU: COMMENTARY ON CONSTITUTION OF
INDIA, (Lexis Nexis,2021)

2. HON. RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (Harvard University
Press 1990).
3. MAHENDRA PAL SINGH, V.N. SHUKLA’S CONSTITUTION OF INDIA (Eastern Book
Company 2017).
4. MP JAIN, CONSTITUTIONAL LAW (LexisNexis 2018).
5. RAM JETHMALANI, D.S. KAPUR, PARLIAMENTARY PRIVILEGES- LAW AND PRACTICE
(Thomson Reuters 2015).
WEBSITES:
1. MANUPATRA, HTTP://WWW.MANUPATRA.CO.IN
2. SCC ONLINE, HTTP://WWW.SCCONLINE.COM
3. INDIA CODE, HTTPS://INDIACODE.NIC.IN/
STATUTES:
1. Constitution of India, 1950.
Page|6
STATEMENT OF JURISDICTION
It is humbly submitted before the Hon’ble Court that this Court has the jurisdiction to
entertain the present petition under Article 32 of the Constitution of Zondia 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 the power to issue directions or orders or writs, including
writs like 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 Supreme Court by clause (1) and (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 Supreme Court under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.
STATEMENT OF FACTS
1. “Zondia ” is a democratic country with ancient history, tradition and culture consisting of 29
States and 8 union territories and having a total population of 1.25 Crore. Zondia has a written
constitution and the spirit of socialism embodied in the preamble pervades the entire
constitution. Social Justice, Federalism, Independent Judiciary, and Separation of powers are
some of the other significant features.
2. The legislative powers are the same as in the seventh schedule of the Constitution which
consists of three lists namely, the Union List, State List, and Concurrent list and the 10 th
Schedule of the Zondian Constitution, known as the “Anti-Defection law aims to preserve
lawmakers from switching parties without consequences.
3. In the bustling corridors of power in Zondia a riveting political narrative unfurls, shaped by the
tumultuous winds of electoral change and the quest for legislative justice. Against the backdrop
of Bhartiya Nagrik Association’s (BNA) triumph in the 2014 and 2019 general elections
defeating Indian People Association (IPA), a new chapter of governance unfolds as the nation
gears up for the impending 2024 elections. On 10 January 2024, the government proposes the
Regulation of Artificial Intelligence (AI) Bill, 2024, (Hereinafter Bill). The bill’s voting is
scheduled for February 25, 2024.
4. Amidst the political landscape, six IPA Member of Lok Sabha – Amar, Sneha, Rahul, Neha,
Vikram, and Aisha – find themselves at the centre of a constitutional maelstrom. Despite
belonging from the IPA party, a formerly influential entity in Zondian politics, these six
Member of Lok Sabha grapple with the delicate balance between party allegiance and personal
beliefs. They support the bill, considering it beneficial for their constituency. However, the IPA
president opposes the bill, as it was proposed by the BNA government, believing it could be
detrimental from a future perspective.
5. The IPA president, wielding the authority of his office, issues a whip demanding unwavering
allegiance to the party line to vote against the Bill by issuing the whip on 15 February, 2024.
6. Undeterred by party pressure, the six Members of Lok Sabha follow their conscience and vote
against the party directive. In response, the IPA president quickly requests the disqualification
of the six Members of Lok Sabha on March 9, 2024, while applying to Hon’ble Speaker Lok
Sabha, using the Anti-Defection Law.
7. On March 25, 2024, after careful examination, the Lok Sabha Speaker disqualifies this six
Members of Lok Sabha. Unfazed by their disqualification, the Member of Lok Sabha
challenged the constitutionality of section 2(b) of the 10 th de through filing a Public Interest
Litigation (PIL) before the Supreme Court because it violates their fundamental right of
freedom of speech and expression and Privilege under Article 105 of the Constitution. They
contend that the Anti-Defection Law Stifles honest dissent, making it unconstitutional. The
Supreme Court is set to near the case.
P a g e | 10 MEMORIAL for RESPONDENTS

ISSUES RAISED
ISSUE I: WHETHER THE PIL FILED BY SIX MEMBERS OF LOK SABHA 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 SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES

PARLIAMENTARY PRIVILEGES PROVIDED UNDER ARTICLE 105 OF THE
CONSTITUTION?
ISSUE IV: WHETHER THE SPEAKER WHILE DECIDING THE CASE UNDER THE 10TH
SCHEDULE MEETING THE CRITIERIA OF BEING AN INDEPENDENT ADJUDICATORY
MACHINERY?
P a g e | 11
SUMMARY OF ARGUMENTS
ISSUE I: WHETHER THE PIL FILED BY SIX MEMBERS OF THE LOK SABHA
OF IPA IS MAINTAINABLE OR NOT?
It may be humbly submitted before the court that the PIL filed by SC of Zondia is not
maintainable before SC as there has been no breach of fundamental rights and expression and
privileges under Article 105 of the constitution. The speaker while giving the decision
disqualifying six members of Lok Sabha for not following the party whip has acted within the
four corners of law and not passed the order by any mala fide or considering any irrelevant
facts. Clause (b) of the same paragraph explains the ground for voting contrary to the
directions issued by the political party which is satisfied in the present case. Under the light
of articles 102 of the constitution of India and the 10th schedule, the speaker’s exercise is
judicial in nature. Thus, due to the virtue of the finality clause in the 10th schedule, the PIL is
not maintainable before the SC.
ISSUE II: WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION

PROHIBITING HONEST AND GENUINE DISSENT DESERVE TO BE DECLARED
UNCONSTITUTIONAL?
The 10th schedule was introduced to curb evil political defections and give government
stability. It does not prohibit members' dissent. The disqualifications take place on disobeying
of party whips, which are based only on matters of utmost importance or when the fate of the
government hangs in balance. Thus the 10th schedule doesn't deserve to be declared as
unconstitutional.
ISSUE III: WHETHER SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES

PARLIAMENTARY PRIVILEGES PROVIDED UNDER ARTICLE 105 OF THE
CONSTITUTION?
It may humbly be submitted that the freedom of speech and expression which has been
granted under article 105 of the Constitution of Indiana has not been infringed and has only
been restricted to the public interest. Thus, it may be contended that article 19(1)(a) which
provides for the freedom of speech and expression and clause (2) of the same article
elaborates on the reasonable restrictions that can be put forth in the exercise of that right in
public interest and maintenance of public order.
It may further be contended that a restriction on the right to freedom of speech and expression
in the interests of maintaining public order does not mean a restriction on the right to only
restrict a speech advocating public disorder or disruption of public peace, but a restriction on
the right to any other speech, which may not in itself advocate public disorder or disturbance
of public peace but may impel or induce a hearer to commit public disorder, would also be
under the ambit of the restriction placed in the interests of public order, and thus, such a
restriction may be placed on the petitioner without violation of any law.
ISSUE IV: WHETHER SPEAKER WHILE DECIDING THE CASE UNDER THE
10TH SCHEDULE MEETING THE CRITERIA OF BEING AN ADJUDICATING
MACHINERY?
It is humbly submitted before the Hon’ble Court that the Speaker while deciding the matter
under the 10th Schedule satisfies the requirement of independent adjudicatory machinery on
the grounds that the speaker while deciding the matter under the 10th schedule satisfies the
requirement of independent adjudicatory machinery and the speaker while giving a decision
under the 10th schedule has acted within the scope of power granted to him by his office.
It is humbly submitted that the speaker holds a pivotal position in the scheme of parliamentary
democracy and are guardian of the rights and privileges of the house. They are
expected to and do take far-reaching decisions in the functioning of parliamentary democracy.
While acting as a judge and deciding the case of disqualification of the member, the speaker
has acted within his powers. He has followed the rules laid down in the 10th schedule and
disqualified the member. The office of the speaker is held in very high regard and it’s
considered
to be the speaker’s role to be unbiased in such dealings. Thus, the speaker has satisfied the
requirements of an independent adjudicatory machinery.
ISSUE I: WHETHER THE PIL FILED BY SIX

ARGUMENTS MEMBERS OF LOK SABHA OF IPA
ADVANCED
IS MAINTAINABLE OR NOT?
The PIL filed by SC of India is not maintainable before SC as there has been no breach of
fundamental rights and expression and privileges under Article 105 of the constitution. The
speaker while giving the decision disqualifying six members of Lok Sabha for not following
the party whip has acted within the four corners of law and not passed the order by any mala
fide or considering any irrelevant facts. Thus, due to the virtue of the finality clause in the 10th
schedule, the PIL is not maintainable before the SC.
Also, since the principle of Stare Decisis is applicable due to the presence of other similar
cases, the case should not be entertained. That the speaker while deciding the matter under the
10th schedule has not acted beyond the four corners of law 102(2) provides for a decision-
making mechanism for disqualification of members under this section 6 : Decision on
questions as to disqualification on the ground of defection.-
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 suite and the very reason for this, is
because the speaker while giving the decision disqualifying six members of lok sabha has acted
within the four corners of law.
Hon'ble court it is given in the 10th schedule clause 2 (b) of the constitution :
Disqualification on ground of defection.—(1) Subject to the provisions of 3 [paragraphs 4 and
5], a member of a House belonging to any political party shall be disqualified for being a
member of the House— (a) if he has voluntarily given up his membership of such political
party; or (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 authorized by it in 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, person
or authority within fifteen days from the date of such voting or abstention.
It is humbly submitted before the Hon’ble Court a house has the power to punish a person,
whether it's member or outsider, for its contempt or breach of privileges. A house can impose
the punishment of admonition, reprimand or suspension, from the service of the house for the
session, fine and imprisonment.
That the speaker has the finality of decision making for disqualification Para 6 of Schedule X
specifically mentions the speaker's decision is final when any question arises as to whether a
member of parliament has become subject to disqualification. In the present case, the speaker
has acted within the powers granted to him under Part 6 of the 10th schedule.
That the petitioner has acted against the feature of unity and shared belief of the political party
leading to his disqualification. The petitioner was disqualified on the grounds of abstention
from voting knowing the fact that whip was issued by the petitioner's party. In today's
democratic scenario a political party functions on strength of shared belief and loyalty to party
is the norm being based on shared belief. The divided party is looked on with suspicion, by the
electorate. According to Kihoto Hollohan v Zachillhu and ors, this hon'ble court has held that
the decision of the speaker with regard to disqualification can be challenged in court of law
only when Thus the speaker has not acted in any of these capacities which enable the petitioner
to challenge the speaker's decision in court.
The decision in Kihoto Hollohon vs. Zachillhu and others addresses a few questions and
problems raised by this law. The court subsequently decided that the law did not violate any
free speech rights or the parliamentary popular government's essential structure.
Speakers/Chairmen are the protectors of the House's rights and privileges, and they play an
important role in Parliamentary democracy. They are expected to, and do, make key decisions
in a Parliamentary democracy. Because they have been given the power to decide questions
under the Tenth Schedule, they should not be considered exceptionable.
The Speakers/Chairmen hold a very significant as well as a diplomatic place in the system
of Parliamentary democracy and are custodians of the House's rights and
privileges," wrote Justices M N Venkatachaliah and K Jayachandra Reddy in the majority
judgement.
That the speaker's decision is valid and this court doesn't have jurisdiction to entertain the pil.
Considering the facts that the speaker has followed all the procedural nuances and has acted
within the four corners of law and that he has also not violated any provisions laid down in the
Kihoto Hollohan case, the petitioner cannot bring the speaker's judgement into question and
thus the PIL is not maintainable.
No violation of fundamental rights
The jurisdiction vested in the Supreme Court is exercisable only for the enforcement of
fundamental rights conferred by Part III of the Constitution. Where there is no question of the
enforcement of a Fundamental right, Article 32 has no application .
In the present case there is neither a violation of fundamental rights of the petitioner nor of the
people on behalf of whom this particular petition is filed.
1
Relying on BALCO Employees' Union (Regal Union of India), the court has again
reminded that only the only ground in which a person can maintain Public Interest litigation is
where there has been an element of violation of Article 21 on human rights or where the
litigation has been initiated for the benefit of the poor and the underprivileged who are unable
to come to the court due to some disadvantage.
Article 32 of the Constitution of India guarantees enforcement of fundamental rights. It is well-

settled that the jurisdiction conferred on the Supreme Court under Article 32 is an important
and integral part of the Indian Constitution but violation of a fundamental right is the sine qua
nom for seeking enforcement of those rights by the Supreme Court. In order to establish the
violation of a fundamental right, the Court has to consider the direct and inevitable
consequences of the action which is sought to be remedied or the guarantee of which is sought
to be enforced.
Also, the Directive Principles of State Policy are not enforceable. Article 37 read with the case
Deep Chand v. State of Uttar Pradesh 1959 AIR 648 2it was held that the directive principles
of the State Policy, which by Article 37 are expressly made unenforceable by a Court, cannot
override the provisions found in Part III which, notwithstanding other provisions, are expressly
made enforceable by appropriate Writs, Orders or directions under Article 32.
It is submitted by the counsel for respondent that there is no violation of fundamental rights
and hence there is no way of approaching the court on under Article 32 of the Constitution of
India which provides remedies in terms of violation.
Judiciary has no say in policy decisions of the legislative authority
1
AIR 2002 SUPREME COURT 350, 2001 AIR SCW 5135, 2002 CLC 171 (SC),
2
1959 AIR 648, 1959 SCR SUPL. (2) 8, AIR 1959 SUPREME COURT 648
In such a petition, the Court cannot interfere in matters of legislative policy The Court must
maintain judicial restraint in matters relating to the legislative or executive domain. The policy
of a law may be gathered from the Preamble, read in the light of the circumstances in which it
was passed, or its object, with its provisions read together
In the case of State (Govt of NCT of Defki v Prem Raj) 3, the Court held that "Where the
words are clear, there is no obscurity, there is no ambiguity and the intention of the legislature
is clearly conveyed, there is no scope for the court to innovate or to take upon itself the task of
amending or altering the statutory provisions. In that situation the judge should not proclaim
that they are playing the role of lawmaker merely for an exhibition of judicial valour. They
have to remember that there is a line, though thin, which separates adjudication from
legislation. That line should not be crossed or crashed." "Moreover, mere possibility of abuse
cannot be counted as a ground for denying the vesting of powers or for declaring a statute
unconstitutional
The Supreme Court under Article 32 is empowered to issue any of the five prerogative writs or
any other order for the enforcement of rights guaranteed under Part III of the Constitution. It
has been held that even though the recourse to remedy under Article 32 is extraordinary in
nature, the ordinary rules of procedure will continue to apply and there is nothing in the
Constitution. which merits a different stance."
Mr. A.S. Chandhiok, learned Additional Solicitor General, submitted that under the
Constitution it is only the Legislature which has the power to make low and amend the law and
the Court cannot in exercise of its judicial power encroach into the field of legislation. In
support of this submission, he relied on the decion of a seven-judge Bench of this Court in P.
Romachandra Rao v. State of Karnataka in which this Court has recognized the limits of
judicial power in a constitutional democracy. He also cited the decision in Union of India and
Another v. Deoki Nandan Aggarwal for the proposition that courts cannot rewrite, recast
legislation for the very good reason that it has no power to legislate.
Further, it was held in Supreme Court Employees Welfare Association v. Union of India
that the court cannot direct the legislature and delegated authority to make any particular law.
It is well-settled that judicial review, in order to enforce a fundamental right, is permissible of

administrate, legislative and governmental action or non-action, and that the rights of the
citizens of this country are to be judged by the judiciary and judicial forums and not by the
3
AIRONLINE 2003 SC 264, (2003) 105 DLT 1013, (2003) 10 ALLINDCAS 617,
administrators or executives. But it is equally true that citizens of India are not to be governed
by the Judges or judiciary. If the governance is illegal or violative of rights and obligations,
other questions may arise out whether, as mentioned hereinbefore, it has to be a policy decision
by the Government or the authority and thereafter enforcement of that policy, the Court should
not be, and we hope would not be an appropriate forum for decision.
Judgment of the seven-Judge Bench in P. Ramachandrakao v. State of Karnataka Courts

can declare the law, they can interpret the law, they can remove obvious lacunae and fill the
gaps but they cannot entrench upon in the field of legislation properly meant for the
legislature."
The Latin maxim of ubi jus ibi remedium would work here as there is absolutely no legal
wrong. Thus there can be no question of any remedy. It is submitted that looking to judicial
procedent, even after the matter has been posted for final hearing. The court may hear counsel
on the issue of maintainability of the petition and if it is found to be non-maintainable, then the
same is liable to be dismissed.
ISSUE II: WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION

PROHIBITING HONEST AND GENUINE DISSENT DESERVE TO BE DECLARED
UNCONSTITUTIONAL?
ISSUE III: WHETHER THE SECTION 2(B) OF THE 10TH SCHEDULE INFRINGE UPON
PRIVILEGES OUTLINED IN ARTICLE 105 OF THE CONSTITUTION?
The allegations regarding the violation of a constitution provision should be specific, clear
and unambiguous and it is for the person who impeaches the law as violative of the
constitutional guarantee to show that the particular provision is infirm for the reason stated
by him. Article 105 of the Indian constitution provides for the parliamentary privileges to the
members of the Lok sabha and the Rajya Sabha. 105 conferring parliamentary privileges
under this part-
● 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.
● 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.
● The paragraph 2 of the 10th schedule to the constitution is valid. Its provisions do not suffer
from the vice of subverting 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.
● The provisions of paragraph 2 do not violate any right or freedom under article 105 of the
constitution. The reasoning for the honorable Supreme Court pronouncing such a decision can
be seen through the various facets of the legislation and the constitution itself.
● 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 contended 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.
● It is an observation that the political parties issue whips only when the government is in
danger.
● This substantiates the above stated legislative intent which sought to introduce this 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 a 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.
● 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.
● 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.
● 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.
During the period between 1967 to 1979, there were around 1500 party defections and 313
independent defections and a slogan "Aya Ram Gaya Ram" had become the phrase of the
time after an MLA from Haryana Gaya Lal changed his party thrice within the same day. Thus,
a growing need for an anti-defection law was felt which could combat political defections
fuelled by political corruption and bribery as legislators, in the years preceding anti-defection
law, were often given the lure of executive office, or promised personal benefits, in order to
encourage them to defect from their party.
That the Lok Sabha considering the veracity of the situation brought up the matter for
discussion and a committee was constituted under the chairmanship of the Home Minister
Yashwantrao Balwantrao in 1969 to examine the need for an anti-defection law. The
Committee recommended that for defections that were fueled by monetary gains or by the lure
for political office, the defectors should not only be barred from office, but also be barred from
standing in future elections for a prescribed time period.
That the Government thereby introduced the Constitution (Fifty-second amendment) Bill in
the Lok Sabha on 24th January 1985 which led to amendment in Article 101, 102, 190 and
191 of the Constitution to provide the grounds for vacation of seats for the disqualification of
the members and also inserted the tenth schedule to the Constitution which lays down the
provisions regarding disqualification on grounds of defection.
That the right of freedom of speech which has been granted under Article 105 of the
Constitution of Zondia has not been infringed and has only been restricted in public interest. It
may humbly be contended that article 19(1)(a) provides for the freedom of speech and
expression and clause (2) of the same article elaborates the reasonable restrictions that can be
put forth in exercise of that right and public interest and maintenance of public order is one of
the major reasons for restricting absolute exercise of the freedom. That the reference may be
drawn to the judgement of the Hon'ble Court in Ramesh Thapar vs.
State of Madras4, wherein it was held that maintenance of public order is an essential
requirement and the same can be made a reason to place reasonable restrictions on the
fundamental freedom of speech and expression.
That it may humbly be submitted that while article 105of the Constitution of Zondia
provides immunity to the members of the Parliament against anything said or done or any vote
given by him within the premises of the Parliament, but, however, the petitioners act of voting
against, despite the issuance of the party whip provides a strong and valid ground for
suspension of their membership under paragraph 2, schedule X of the Constitution of Zondia.
That reference may further be drawn to the judgement of the Supreme Court in the case of
Kihoto Hollohan vs. Zachillhu5, wherein the major issue was that whether schedule X curtails
the fundamental right of freedom of speech and expression and it was stated by the worthy
Hon'ble Supreme Court that the impugned schedule neither impinges the fundamental freedom
of speech and expression nor subverts the democratic rights of the members of the Parliament.
That the counsel for the respondent would further like to draw the attention of the Hon'ble
Court to the judgement of the case of Ram Nandan Singh vs. State of Bihar, 6
wherein it was observed that a restriction on the right to freedom of speech and expression in
the interests of maintaining public order does not mean a restriction on the right to only restrict
a speech advocating public disorder or disruption of public peace, but a restriction on the right
to any other speech, which may not in itself advocate public disorder or disturbance of public
peace but may impel or induce a hearer to commit public disorder, would also be under the
4
1950 AIR 124, 1950 SCR 594, AIR 1950 SUPREME COURT 124
5
AIR 1993, S.C. 412
6
AIR 1959 ALL 101, 1959 CRILJ1
ambit of the restriction placed in the interests of public order. Thus, taking reference to the
aforementioned judgement, the action of the petitioner falls within the ambit of the second half
of the statement, his defence of claiming that his right to freedom to speech and expression
has been infringed, gets invalidated.
ISSUE IV: WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER
THE 10TH SCHEDULE MEETING THE CRITERIA OF BEING AN INDEPENDENT
ADJUDICATORY MACHINERY?
It is humbly submitted before the Hon’ble Court that the Speaker while deciding the matter
under the 10th Schedule satisfy the requirement of independent adjudicatory machinery
because [A] that the speaker while deciding the matter under the 10th schedule satisfies the
requirement of independent adjudicatory machinery [B] that the speaker while giving decision
under the 10th schedule has acted within the scope of power granted to him by his office. The
speaker by the 10th schedule, is enabled to decide the matter of disqualification of members
under the provisions of Article 102 (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
according to 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.
• Their role is only in the domain of ascertaining the relevant facts. Once the facts gathered or
placed show that a member of the house has done any such act which comes within the
purview of para 2 (1) (2) or (3) of the schedule, the disqualification will apply and the
chairman or the speaker of the house will have to make a decision
to that effect.
• Furthermore, the speaker is held in very high esteem and respect due to inherent
historical reasons in the concept of parliamentary democracy. Once a person is elected as a
speaker, the expectation is that he is above the nuances of parties and politics. While deciding
the matter of such a disqualification at hand he holds the scale of justice evenly irrespective of
the two parties in front of him. Everybody knows that despite his drawbacks and shortcomings
he will intentionally do no justice or show partiality, such a person is naturally held in respect
by all. 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.
• 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.
• It is held in the case of Kihoto Hollohan 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 ground of 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 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.”
Within Democratic spirit and the Constitutional Scheme
Democracy is for the people therefore, effect must be given to the will of the people. It is
emphasized that democracy is a basic feature of the constitution and its abrogation would alter
the structure of the constitution. One of the postulates of free and fair elections is the provision
for the resolution of election disputes as well as the adjudication of disputes relating to
subsequent disqualifications by an independent authority. It is only by a fair adjudication of
such disputes relating to the validity of elections and subsequent disqualifications of members
that true reflection of the electoral mandate and governance by rule of law essential for
democracy can be ensured.
The contention that the vesting of adjudicatory functions in the Speakers would by itself vitiate
the provision on the ground of the likelihood of political bias is unsound and is rejected in
Kihoto Hollohan vs Zachillhu and ors. It is humbly submitted that the speaker hold a pivotal
position in the scheme of parliamentary democracy and are guardians of rights and privileges
of the house. They are expected to and do take far-reaching decisions in the functioning of
parliamentary democracy.
By the 10th schedule, the speaker has been granted the power to decide the matters of
disqualification of members based on defection. In the current case, a whip was issued by the
IPA party demanding unwavering allegiance to the party line to vote against the bill. But
undeterred by party pressure, the six members of Lok Sabha voted against the party directive.
Therefore, the Hon’ble Speaker of Lok Sabha has valid reason to disqualify them and fulfilling
his duties to the esteemed office of Speaker, thus establishing Parliamentary Democracy and
Spirit of Constitutionalism. On 25th March 2024, after carefully examining all the essential
points of Disqualifications that are provided under 2(b) of the 10th schedule, the Speaker of
Lok Sabha disqualified these six Members Of Lok S
PRAYER
Wherefore, may it please the Hon'ble Supreme Court, in the light of facts and circumstances
of the case, issues raised, arguments advanced and authorities cited, the Counsel for the
respondent prays that this Hon'ble Court may be pleased to adjudge, rule upon, and
determine the following:
1. Firstly, to hold that, the appeal is not maintainable and the Hon'ble Supreme Court of
Zondia has no the jurisdiction to try the instant matter;
2. Secondly, to hold that the speaker while deciding the matter under schedule X of the
Constitution duly satisfies the criteria of an independent adjudicatory machinery;
3. Thirdly, to hold and declare, that the schedule X of the Constitution of Zondia is
constitutional and is not violative of the principles elucidated in the Constitution of
Zondia;
4. Lastly, to declare that, section 2(b) of the 10th schedule is not violative of the
Parliamentary Privileges given to the Legislators under article 105 of the Constitution;
and/or
Pass any other order, direction or relief that it may deem fit in the interest of justice, equity,
fairness and good conscience.
For this act of kindness of your Lordship, the Respondent shall duty bound forever pray.
Place:
S/d-
Date: COUNSELS for the RESPONDENT
P a g e | 30

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TEAM CODE: 60

1ST LEXOSPHERE NATIONAL MOOT COURT

BEFORE THE HON’BLE SUPREME COURT OF

IN THE MATTER OF ARTICLE 32 OF THE

WRIT PETITION NO. / 2024

AMAR & ORS...............................................................................PETITIONER

HON’BLE SPEAKER OF LOK SABHA................................................RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENTS

S. TABLE OF CONTENTS PG.

A. The Speaker has powers for deciding cases of defection as

7(D). ISSUE IV: WHETHER THE SPEAKER WHILE DECIDING THE 26

ABBREVIATION ACTUAL TERM

No. Supreme Court

Ors. Supreme Court Cases

SC Supreme Court Reporter

1. Subhash C. Kashyap, Parliamentary Procedure : Law, Privileges, Practice and

1. INDIA CONST. art. 32

1. D.D. BASU, DR. S.S. SUBRAMANI, D.D. BASU: COMMENTARY ON CONSTITUTION OF

INDIA, (Lexis Nexis,2021)

(Thomson Reuters 2015).

2. SCC ONLINE, HTTP://WWW.SCCONLINE.COM

3. INDIA CODE, HTTPS://INDIACODE.NIC.IN/

1. Constitution of India, 1950.

P a g e | 10 MEMORIAL for RESPONDENTS

ISSUE II: WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING

ISSUE III: WHETHER SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES

ISSUE II: WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION

ISSUE III: WHETHER SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES

ISSUE I: WHETHER THE PIL FILED BY SIX

If any question arises as to whether a member of a House has become subject to

thus the PIL is not maintainable.

No violation of fundamental rights

Article 32 of the Constitution of India guarantees enforcement of fundamental rights. It is well-

Judiciary has no say in policy decisions of the legislative authority

It is well-settled that judicial review, in order to enforce a fundamental right, is permissible of

Judgment of the seven-Judge Bench in P. Ramachandrakao v. State of Karnataka Courts

ISSUE II: WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION

•Disqualifications for membership A person shall be disqualified for being a member

Within Democratic spirit and the Constitutional Scheme

Date: COUNSELS for the RESPONDENT

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