RGNUL ACADEMIC

CADEMIC MOOT
OOT COURT
OURT COMPETITION
OMPETITION 2022

NAME: NIKITA AGGARWAL

ROLL NO: 17132

IN THE HON’BLE SUPREME COURT OF INDOSTAN

IN THE CASE OF
(WRIT PETITION NO. __ OF 2022)

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDOSTAN, 1950)

APURV BHARAT ......PETITIONER

v.
HON’BLE SPEAKER, LOK SABHA ......RESPONDENTS
&
UNION OF INDOSTAN

RESPECTFULLY SUBMITTED TO THE HON’BLE JUDGE IN JUDICATURE

OF THE SUPREME COURT OF INDOSTAN

-MEMORANDUM ON BEHALF OF PETITIONER-

-MEMORANDUM ON BEHALF OF PETITIONER-

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................... IV

INDEX OF AUTHORITIES ...................................................................................................... VI

STATEMENT OF JURISDICTION ......................................................................................VIII

STATEMENT OF FACTS ......................................................................................................... IX

STATEMENT OF ISSUES ........................................................................................................ XI

SUMMARY OF ARGUMENTS .............................................................................................. XII

ARGUMENTS ADVANCED ....................................................................................................... 1

1. THAT THE PRESENT WRIT PETITION IS NOT MAINTAINABLE ..................................................... 1

1.1 THAT THE PETITIONER HAS A RIGHT AVAILABLE UNDER ARTICLE 32 .................... ……….1

2. THAT SCHEDULE-X OF THE CONSTITUTION CURBS FREEDOM OF SPEECH AND EXPRESSION OF THE

PARLIAMENTARIANS ....................................................................................................................... 4

2.1 THAT ANTI-DEFECTION LAW STIFLES DEBATE AND DISSENT AND THUS VIOLATE THE FREEDOM OF

SPEECH AND EXPRESSION ........................................................................................................... 4

2.2 THAT LAW IS EVOLUTIONARY AND KIHOTO HOLLOHON NEEDS TO BE RECONSIDERED6

2.2.1 That freedom of Speech and Expression is now a part of the Basic Structure of the Constitution of

Indostan ................................................................................................................................................ 6

II

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2.2.2 That a Parliamentary Democracy contains elements of both the party-centric model and legislator-

constituent-centric model...................................................................................................................... 6

3. THAT THE SPEAKER’S ORDER IS ARBITRARY AND IS LIABLE TO BE QUASHED .................................. 8

3.1 THAT THE HON’BLE COURT IS EMPOWERED TO EXAMINE THE VALIDITY OF THE SPEAKER’S ORDER 8

3.2 THAT THE SPEAKER’S ORDER IS UNCONSTITUTIONAL ..................................................……9

3.3 THAT THE SPEAKER’S ORDER IS VIOLATIVE OF THE PRINCIPLES OF NATURAL JUSTICE10

PRAYER ...................................................................................................................................XIII

III

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LIST OF ABBREVIATIONS

S. NO. ABBREVIATIONS EXPANSIONS

1. PIL Public Interest Litigation

2. Schedule Schdl.

3. High Court HC

4. CIC Central Information Commission

5. Art. Article

6. Govt. Government

7. SC Supreme Court

8. SC Supreme Court

9. Art. Article

10. § Section

11. AIR All India Reporter

12. SC Supreme Court

13. SCC Supreme Court Cases

14. UoI Union of India

15. ¶ Paragraph

16. v. Versus

17. SCR Supreme Court Reports

IV

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18. Ors. Others

19. Anr. Another

20. Hon’ble Honourable

21. Ltd. Limited

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INDEX OF AUTHORITIES

SUPREME COURT CASES

Balchandra L Jarkiholi & Ors v. B.S.Yeddiyurappa & Ors 2011 SCC OnLine SC 791 .........................9, 11

Chiranjit Lal Chowdhury v. Union of India AIR 1951 SC 41 .......................................................................1

Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844 ................................................3

Jagjit Singh v. State of Haryana, : (2006) 11 SCC ....................................................................................2, 9

Kihoto Hollohan v. Zachillu AIR 1993 SC 412 .................................................................................4, 6, 8, 9

Maneka Gandhi v. Union of India AIR 1978 SC 597 ................................................................................2, 8

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1..............................................................8

Ravi S. Naik v. Union of India 1994 Supp (2) SCC 641 ...........................................................................3, 9

S. P. Gupta v. Union of India AIR 1982 SC 149 ...........................................................................................2

Shri Kshetrimayum Biren Singh v. The Honble Speaker, Manipur Legislative Assembly & Ors 2021 SCC

OnLine SC 1213 .......................................................................................................................................11

Shrimanth Balasaheb Patil v. Hon'ble Speaker, Karnataka Legislative Assembly, 2019 SCC OnLine SC

1454 ............................................................................................................................................................9

U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264 ..................................................................8

Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 ..............................................................................8

Union of India v. Association for Democratic Reforms (2002) SCC 5 294 ..................................................7

Vineet Narain v Union of India, AIR 1998 SC 889 .......................................................................................4

FOREIGN CASES

Bond v. Floyd, 385 U.S. 116 (1966) ..............................................................................................................5

VI

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Gewertz v. Jackman, 467 F. Supp. 1047 DNJ (1979) ....................................................................................5

ARTICLES

Economic Times, Ruling party as opposition, September 28, 2010, available at http://articles.

economictimes.indiatimes.com/2010-09-28/news/27574743_1_political-party-party-discipline-dissent.4

Gautam Bhatia, Anti-Defection and Expelled Members: Text, Structure, History and Theory, Indian

Constitution Law and Philosophy. Available at: https://indconlawphil.wordpress.com/2017/04/18/anti-

defection-and-expelled-members-text-structure-history-and-theory/ ........................................................8

The anti-defection law continues to damage Indian democracy, Chakshu Roy,

https://www.hindustantimes.com/opinion/the-anti-defection-law-continues-to-damage-indian-

democracy-101613914337557.html ...........................................................................................................5

OTHER AUTHORITIES

Blacks’s Law dictionary (6th Edition): Locus standi ......................................................................................4

Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis

Butterworths Wadhwa 2008)......................................................................................................................1

VII

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STATEMENT OF JURISDICTION

WRIT PETITION NO._____ OF 2022

The petitioner has approached this Hon’ble Court u/A 32 of the Constitution of Indostan, 1950 that
reads:

“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 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.”

VIII

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STATEMENT OF FACTS

- BACKGROUND -
The republic of Indostan is a socialist, democratic and secular nation. Indostan is a member of several
international organizations and is internationally recognized as a ‘welfare state’. The Constitution of
Indostan is based on the values of democracy, equality, secularism and justice. It also guarantees
certain civil liberties to its citizens. The Supreme Court of Indostan, in the recent past, has recognized
and enlarged the scope of such liberties. The political arena of Indostan has witnessed a paradigm
shift. There has been a constant rise in the dynasty politics and the legislature is affected by the
defection matters. ‘Best People Party’ is the political party in power in Union and is currently facing
the allegations of dynasty politics by its own members and workers.

- FACTUAL DESCRIPTION -
The petitioner, Mr. Apurv Bharat, belongs to a backward caste, and was designated as treasurer of the
‘Best People Party’. He was a loyal member of the party for more than twenty years. He also got
immense support from people of his caste in the general elections, due to which the ‘Best People
Party’ won with the majority of votes in 2020. In April 2021, the party conducted intra-party election
for the post of President, Treasurer and Media Spokesperson. Since most of the party workers
belongs to the ‘upper caste’ and they favored Ms. Suzanne, niece of the former president of the party,
the petitoner was elected as the Treasurer instead of the President. Upon complaining about the caste
discrimination and dynasty politics within the party, in order to suppress the allegations, the newly
elected President Ms. Suzanne recommended the petitioner’s name for the Petroleum Minister to the
Prime Minister. Mr. Apurv Bharat was given the portfolio of Petroleum Minister in January 2022. In
February 2022, the ‘Best People Party’ tabled a bill namely Prohibition of Discrimination against
Backward Castes (Amendment) Bill, 2022, in the Lok Sabha. The bill has inserted a Clause-5(5),
wherein the provision of registration of First Information Report has been deleted from the
Prohibition of Discrimination against Backward Castes Act, 1951. The party has issued a three-line
party whip and directed all its members to remain present and vote in the favor of the amendement.
Being a representative of the backward caste, the petitioner considered the provision arbitrary and
openly criticized the bill in a press conference. However, he complied with the whip and voted as per
the directions.
IX

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- CONSEQUENCES -
The president of the ‘Best People Party’, moved an application to the speaker of the Lok Sabha to
disqualify the petitioner.The speaker disqualified Mr.Apurv Bharat on the grounds of defection under
Schedule X of the Constitution of Indostan. Resultantly, the petitioner challenged the validity of the
speaker’s order in the Supreme Court.

-THE PRESENT PETITION-

The petitioner filed a Public Interest Litigation challenging the constitutional validity of Schedule-X
of the Constitution in the context of the freedom of speech and expression

-MEMORANDUM ON BEHALF OF PETITIONER-

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STATEMENT OF ISSUES

ISSUE 1

WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE OR NOT?

ISSUE 2

WHETHER SCHEDULE X OF THE CONSTITUTION OF INDOSTAN CURBS THE FREEDOM OF SPEECH

AND EXPRESSION OF A PARLIAMENTARIAN OR NOT?

ISSUE 3

WHETHER THE DISQUALIFICATION OF THE PETITIONER IS ARBITRARY OR NOT?

XI

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SUMMARY OF ARGUMENTS

1. THAT THE PRESENT WRIT PETITION IS MAINTAINABLE.

It is humbly submitted before the Hon’ble Supreme Court that the present Public interest Litigation is
maintainable under Article 32 of the Constitution of India, as there has been a violation of the
Fundamental Rights of the public at large because firstly, it is a right available under article 32 of the
Constitution, secondly, there is violation of the Principle of Natural Justice, and thirdly, that this
matter is that of public interest.

2. THAT SCHEDULE X OF THE CONSTITUTION OF INDOSTAN CURBS THE FREEDOM OF SPEECH AND
EXPRESSION OF THE PARLIAMENTARIANS

It is humbly submitted that Schedule X of the Constitution curbs freedom of Speech and Expression
of the parliamentarians because firstly, Anti-defection law stifles debate and dissent and thus violated
the freedom of speech and expression and secondly, that the law is evolutionary and Kihoto Hollohon
needs to be reconsidered.

3. THAT THE SPEAKER’S ORDER IS ARBITRARY AND IS LIABLE TO BE QUASHED

It is humbly submitted that the order passed by the Speaker is arbitrary and is liable to be quashed
because firstly, that the Hon’ble Court is empowered to examine the validity of the speaker’s order;
secondly, that the Speaker’s order is unconstitutional; thirdly, the Speaker’s order is violative of
principles of natural justice.

XII

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ARGUMENTS ADVANCED

That Petitioner in pursuance of his case submits to the Hon’ble court the following arguments:

1. THAT THE PRESENT WRIT PETITION IS NOT MAINTAINABLE

1. It is humbly submitted before the Hon’ble Supreme Court that the present Public Interest Litigation is
maintainable under Article 32 of the Constitution of India, as there has been a violation of the
Fundamental Rights of the public at large – firstly, the right is available under article 32 of the
Constitution [1.1], secondly, there is violation of the Principle of Natural Justice [1.2], and lastly, that this
matter is that of public interest [1.3].

1.1 THAT THE PETITIONER HAS A RIGHT AVAILABLE UNDER ARTICLE 32

2. It is submitted that the writ jurisdiction of the Supreme Court can be invoked under Article 32 of the
Constitution of Indostan for violation of fundamental rights under Part-III.

3. It is submitted that the sole objective of Art. 32 is the enforcement of the fundamental rights guaranteed by
the Constitution of India. The original jurisdiction of the Supreme Court can be invoked in any case of
violation of a fundamental right guaranteed by part III of the Constitution of India as has been observed in
the case of Chiranjit Lal Chowdhury v. Union of India1 amongst the many others. The constitution makers
conferred on the Supreme Court the power to issue writs for the speedy enforcement of fundamental
rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right.2

4. The Fundamental Rights provided in the Indian Constitution are guaranteed against any executive and
legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of
any person or any group of persons, can be declared as void by the Courts under Article 14 of the
Constitution. Dr. B.R.Ambedkar described Article 32 as the most important one, without which the
Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution. By
including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and
guarantor of these Rights.

1
AIR 1951 SC 41
2
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis Butterworths
Wadhwa 2008).
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5. In 1981, Justice P. N. Bhagwati in S. P. Gupta v. Union of India3, articulated the concept of PIL as
follows, “any member of public can maintain an application for an appropriate direction, order or writ in
the High Court under Article 226 and in case any breach of fundamental rights of such persons or
determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or
legal injury caused to such person or determinate class of persons.” By this judgment PIL became a potent
weapon for the enforcement of public duties were executed in action or misdeed resulted in public injury.
And as a result any citizen of India or any consumer groups or social action groups can now approach the
apex court of the country seeking legal remedies in all cases where the interests of general public or a
section of public are at stake.

6. In this case, Mr. Apurv is being denied the Freedom of speech and expression which is a Fundamental
Right under article 19(1)(a) of the Constitution of India. Being a public servant it’s his duty to speak for
what is in the best interest of the people he represents in the parliament. He is being denied of his
fundamental rights as the speaker disqualified him on the grounds of defection under Schedule – X of the
Constitution.

7. Hence, it is humbly submitted that the Court has the requisite jurisdiction to maintain this petition under
Article 32 of the Constitution.

1.2 THAT THERE IS A VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE

8. In the celebrated case of Maneka Gandhi v. Union of India4 it has been held that the law and procedure
must be of a fair, just and reasonable kind. The principle of natural justice comes into force when no
prejudice is caused to anyone in any administrative action. The principle of Audi Alteram Partem is the
basic concept of the principle of natural justice. This doctrine states the no one shall be condemned
unheard. This ensures a fair hearing and fair justice to both the parties. Under this doctrine, both the
parties have the right to speak. No decision can be declared without hearing both the parties. The aim of
this principle is to give an opportunity to both the parties to defend themselves.

9. The requirement to comply with the principles of natural justice is also recognised in rules made by the
Speaker in exercise of powers conferred by para 8 of the Tenth Schedule. In the case of Jagjit Singh v.

3
AIR 1982 SC 149.
4
AIR 1978 SC 597.
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State of Haryana5 The Speaker, Haryana Legislative Assembly, made the Haryana Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules, 1986 in exercise of power conferred by
para 8 of the Tenth Schedule. Rule 7(7), inter alia, provides that neither the Speaker nor the Committee
shall come to any finding that a Member has become subject to disqualification under the Tenth Schedule
without affording a reasonable opportunity to such Member to represent his case and to be heard in
person.

10. In Ravi S. Naik v. Union of India6 challenging the disqualification order passed by the Speaker of the Goa
Assembly, it was urged that reasonable opportunity was denied in as much as sufficient time was not
granted to respond. It was said that: “But while applying the principles of natural justice, it must be borne
in mind that ‘they are not immutable but flexible’ and they are not cast in a rigid mould and cannot be put
in a legal straitjacket. Whether the requirements of natural justice have been complied with or not has to
be considered in the context of the facts and circumstances of a particular case.”

11. Undoubtedly, the Speaker has to comply with the principles of natural justice and cannot pass an order on
the basis of pre-determination but in the present case, it cannot be held that the impugned order suffers
from any such infirmity. We are unable to accept the contention that the petitioners were not given a fair
deal by the Speaker and principles of natural justice have been violated.

1.3 THAT THE PRESENT CASE CONCERNS A MATTER OF PUBLIC INTEREST

12. Mr. Apurv Bharat is an elected parliamentarian and is a representative of the people of his constituency
which makes its very important to safeguard his rights as a parliamentarian and as well as a public
representative. If he is denied to represent the voice of his people then the rights of all the people whom
he represents is violated.

13. It was made clear in Janata Dal v H.S. Chaudhary7 that only a person ‘acting bona fide8’and ‘having
sufficient public interest’9in the proceeding of public interest litigation will have alone the locus standi10
but not a person for personal gain or political motive or any oblique consideration.

5
(2006) 11 SCC 1 : 2006 SCC OnLine SC 1375.
6
1994 Supp (2) SCC 641.
7
AIR 1993 SC 892 ,¶ 64.
8
Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844.
9
In Black's Law Dictionary (Sixth Edition): Public Interest- Something in which community at large has some pecuniary
interest or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere
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2. THAT SCHEDULE-X OF THE CONSTITUTION CURBS FREEDOM OF SPEECH AND EXPRESSION OF THE
PARLIAMENTARIANS

14. It is humbly submitted that Schedule X of the Constitution curbs freedom of Speech and Expression of
the parliamentarians because firstly, Anti-defection law stifles debate and dissent and thus violated the
freedom of speech and expression [2.1] and secondly, that the law is evolutionary and Kihoto Hollohon
needs to be reconsidered [2.2], as will be averred in the following submissions.

2.1 THAT ANTI-DEFECTION LAW STIFLES DEBATE AND DISSENT AND THUS VIOLATE THE FREEDOM OF
SPEECH AND EXPRESSION

15. It is submitted that a common understanding of the Freedom of Speech and Expression would entail that a
person has a right to his opinion. Ideally, this opinion may fall in line with the majority or go against the
majority and amount to dissent. Nowhere is this dissent more vital than in the Parliament, in order to
foster a deliberative democracy. In Parliament, an inclusive debate is fostered only when parliamentarians
can vote freely.

16. It is humbly argued that dissent is widely seen as a challenge to the party and the government, violation of
party discipline or maverick bellicosity.11 Undoubtedly, every political party would appreciate unflinching
support on the mandate of the day. To cement this aspiration into a binding law, however, disregards the
pressures on a parliamentarian when he is to make a decision. A parliamentarian’s allegiance lies both to
his constituency as well as his political party. Allegiance to the party is reflected greatly in the fact that
the Member is bound by the directions of the Whip. To balance his interests, however, he cannot ignore
the interests of his constituency and must give credence to the same when appropriate. It is fallacious to
consider such conduct as being disloyal to the party or as reflecting poorly on the cohesion of the party.
Members belonging to the same political party may obviously have different opinions on a matter and
expression of such difference of opinion may result in modification or withdrawal of proposals under
consideration.12

curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by
citizens generally in affairs of local, state or national government.; Vineet Narain v Union of India, AIR 1998 SC 889.
10
In Blacks’s Law dictionary (6th Edition): Locus standi- the right to bring an action or to be heard in a given forum.
11
Economic Times, Ruling party as opposition, September 28, 2010, available at http://articles.
economictimes.indiatimes.com/2010-09-28/news/27574743_1_political-party-party-discipline-dissent.
12
Kihoto Hollohan v. Zachillu AIR 1993 SC 412,
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17. Anti-defection law deals with the malaise of floor-crossing, which essentially hampers the functioning of
the legislature. Dissent, however, would not pose a similar problem seeing as it is an intrinsic cog of a
parliamentary democracy. Disqualification under Paragrpah 2(1)(b) then, confuses dissent for defection.

18. It is submitted that the anti-defection law has been singularly responsible for stifling debate in our
Parliament and state legislatures. For example, approximately 250 Members of Parliament (MPs) in the
Lok Sabha have declared their profession as farmers. They are from different political parties and
represent people across the country. During the debate on the three farm bills, they could not support or
oppose these bills based on their knowledge and experience of the agricultural sector.13

19. On the issue as to whether being forced to toe the party lines and thus relinquishing one’s voice of dissent
is antithetical to constitutional ethos and the right to freedom of speech and expression, two examples
from the American jurisprudence are instructive. United States (US), much like India, underscores the
importance of free speech through the First Amendment to the Constitution.

20. In the landmark case of Bond v Floyd14 when legislator Julian Bond was disqualified from the house on
the grounds that through certain anti-Vietnam remarks that he had made, he was no longer in a position to
fulfil his role as a legislator. The Supreme Court of the US, while holding that legislators had an
obligation to take a position on controversial issues and overturning the disqualification on the grounds of
a First Amendment violation, went on to hold that the First Amendment freedoms are available to
members when they articulate their opinions on controversial issues, even if they are bound by the
disciplinary measures of their respective political parties. Similarly, in the case of Gewertz v Jackman15,
the legislator Kenneth Gewertz’s claim that his removal from the Assembly Appropriations Committee
was a result of the speaker’s malicious vindictiveness against his act of criticism of the speaker, although
not ultimately substantiated in the court of law, led the Supreme Court of the US to make very decisive
observations in the context of giving staunch protections to a legislator’s conduct in the house.

21. It is therefore contended that the right to freedom of Speech and Expression of the Parliamentarians is of
immense importance, and anti defection imposes unnecessary curbs on the same.

13
The anti-defection law continues to damage Indian democracy, Chakshu Roy, https://www.hindustantimes.com/opinion/the-
anti-defection-law-continues-to-damage-indian-democracy-101613914337557.html
14
Bond v. Floyd, 385 U.S. 116 (1966)
15
Gewertz v. Jackman, 467 F. Supp. 1047 DNJ (1979).
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2.2 THAT LAW IS EVOLUTIONARY AND KIHOTO HOLLOHON NEEDS TO BE RECONSIDERED

22. It is submitted that the law and its interpretation ought to change with change in time and circumstances.
Kihoto Hollohon too, therefore needs to be reconsidered in the light of changed circumstances as is
enunciated below.

2.2.1 That freedom of Speech and Expression is now a part of the Basic Structure of the Constitution of
Indostan

23. It is submitted that the law and the pronouncements of law are evolutionary process. While Kihoto
Hollohan Vs. Zachillhu & Ors.,16 was decided in light of the situation that stood at the relevant time in the
year 1992, the basic structure doctrine as understood then has been considered without considering the
provisions of Article 19 as a part of the basic structure of the Constitution of India.

24. It is further submitted that after the Constitutional Bench judgment rendered by the Hon’ble Supreme
Court in I.R. Coelho v. State of Tamil Nadu17, it can no longer be argued that Article 19 does not form part
of the basic structure of the Constitution. Consequently, he submits that Paragraph 2(1)(a) of the Tenth
Schedule has to be tested against the basic structure doctrine, as presently existing in law.

2.2.2 That a Parliamentary Democracy contains elements of both the party-centric model and legislator-
constituent-centric model

25. It is submitted that in Kihoto Hollohan18, the Supreme Court explicitly endorsed a model of parliamentary
democracy which privileged the party line – and therefore, by extension, the vehicle of the political party
– over the MP’s sense of responsibility to her constituents, and her right to dissent within the
party. However, it is important to note that this does not negate the MP’s responsibility to her constituents
or her right to dissent. In fact, in other judgments, the Supreme Court has indicated that the relationship
between an elector and a candidate is normatively at least as important as that of the role of the political
party within the Indian Constitutional scheme. A good example of this is a set of cases brought to Court in
the last decade, which sought to make disclosure of personal details about political candidates
compulsory.

16
1992 SCC Supp. (2) 651.
17
(1999) 7 SCC 580.
18
Supra, note 5.
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26. In Union of India v. Association for Democratic Reforms19, for instance, the Supreme Court noted that:

“For health of democracy and fair election, whether the disclosure of assets by a candidate,
his/her qualification and particulars regarding involvement in criminal cases are necessary
for informing voters, may be illiterate, so that they can decide intelligently, whom to vote? In
our opinion, the decision of even illiterate voter, if properly educated and informed about the
contesting candidate, would be based on his own relevant criteria of selecting a candidate. In
democracy, periodical elections are conducted for having efficient governance for the country
and for the benefit of citizens – voters. In a democratic form of government, voters are of
utmost importance. They have right to elect or re-elect on the basis of the antecedents and
past performance of the candidate. He has choice of deciding whether holding of educational
qualification or holding of property is relevant for electing or re-electing a person to be his
representative. Voter has to decide whether he should cast vote in favour of a candidate who
is involved in criminal case. For maintaining purity of elections and healthy democracy,
voters are required to be educated and well informed about the contesting candidates. Such
information would include assets held by the candidate, his qualification including
educational qualification and antecedents of his life including whether he was involved in a
criminal case and if the case is decided – its result, if pending – whether charge is framed or
cognizance is taken by the Court?”

27. In this case, therefore, the Court placed a substantial amount of importance upon the relationship between
the citizen-elector and the candidate qua candidate. This suggests that the Indian Constitutional scheme
contains elements of both the legislator-centric and the party-centric theories of representative democracy.
Now, if this is the case – i.e., that Indian parliamentary democracy contains elements both of the part-
centric model as well as the legislator-constituent-centric model – then the Xth Schedule ought not to be
interpreted in a way that entirely privileges the former over the latter. In other words, given that the Xth
Schedule prescribes the extremely draconian punishment of disqualification for “defection” – i.e., it
subordinates the interests of the party over the relationship between the legislator and her constituents -
when interpreting the Xth Schedule, the Court should do so strictly, so as to not entirely efface the latter.20

19
(2002) SCC 5 294.
20
Gautam Bhatia, Anti-Defection and Expelled Members: Text, Structure, History and Theory, Indian Constitution Law and
Philosophy. Available at: https://indconlawphil.wordpress.com/2017/04/18/anti-defection-and-expelled-members-text-
structure-history-and-theory/
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28. In other words, if there are two possible interpretations open to the Court – one that expands the scope of
the Xth Schedule, and one that does not – all other things being equal, the Court should choose the
former.21

3. THAT THE SPEAKER’S ORDER IS ARBITRARY AND IS LIABLE TO BE QUASHED

29. It is humbly submitted that the order passed by the Speaker is arbitrary and is liable to be quashed
because firstly, that the Hon’ble Court is empowered to examine the validity of the speaker’s order [3.1];
secondly, that the Speaker’s order is unconstitutional [3.2]; thirdly, the Speaker’s order is violative of
principles of natural justice [3.3].

3.1 THAT THE HON’BLE COURT IS EMPOWERED TO EXAMINE THE VALIDITY OF THE SPEAKER’S ORDER

30. It is humbly submitted that the proposition, that in view of hierarchy of appeals the parties must exhaust
the available remedies before resorting to writ jurisdiction of the Supreme Court,22 has been disputed by
observing it does not represent “a Rule of law,” but merely a policy of “convenience and discretion,” and
not of “a compulsion,” and accordingly, “where there is failure of principles of natural justice or where
the orders or proceedings are wholly without jurisdiction warrants, this Court may exercise its writ
jurisdiction even if the parties had other adequate legal remedies.”23

31. It is further submitted that the Speaker, “while exercising the power to disqualify,” acts as a “Tribunal,”
and, therefore, “the validity of the orders are amenable to judicial review.”24

32. In the alternative, it is submitted that even on the touchstone of fundamental rights, the writ jurisdiction of
the Supreme Court could be invoked in the instant case, because the allegations of “violation of the
principles of natural justice and right to fair hearing can be traceable to right to equality and Rule of law
enshrined Under Article 14 of the Constitution, read with other fundamental rights.”25

21
Id.
22
U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264.
23
Ibid.
24
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651.
25
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621; Naresh
Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
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33. It is very humbly submitted that a fact matrix analogous to that of the present case, a three Judge Bench of
the Supreme Court26 “has explicitly held that a challenge to an order of disqualification under the Tenth
Schedule is available under the writ jurisdiction of this Court.”27

3.2 THAT THE SPEAKER’S ORDER IS UNCONSTITUTIONAL

34. It is asseverated that the Tenth Schedule of the Constitution of Indostan makes provisions as to
disqualification of the Members of the House of Parliament or Legislative Assembly on ground of
defection. Paragraph 2 of this Schedule is in two parts, namely, Paragraph 2(1)(a) and Paragraph 2(1)(b).
In the instant case, Paragraph 2(1)(a) is attracted. Paragraph 2(1)(a) envisages that a member of a House
belonging to any political party shall be disqualified for being a member of the House if he has
‘voluntarily’ given up his membership of such political party.

35. It is submitted that in Kihoto Hollohon28, the Constitution Bench of the Supreme Court while interpreting
the phrase ‘voluntarily giving up his membership’ decided that the act of voluntarily giving up
membership of a political party may be either express or implied.

36. In Ravi S. Naik v. Union of India29, the Supreme Court clarified that an MP/MLA need not formally
resign from their party to attract disqualification under the anti-defection law. Interpreting paragraph 2 (1)
(a) of the Tenth Schedule, the SC had said:
“The expression ‘voluntarily given up his membership' is not synonymous with ‘resignation'…
Even in the absence of a formal resignation from membership an inference can be drawn from
the conduct of a member that he has voluntarily given up his membership of the political party
to which he belongs.”

37. It is submitted that the expression was further explained by the SC in Balchandra L Jarkiholi & Ors v.
B.S.Yeddiyurappa & Ors30 -

“The view taken by the Speaker has to be tested in relation to the action of the concerned
Members of the House and it has to be seen whether on account of such action, a presumption

26
Jagjit Singh v. State of Haryana, : (2006) 11 SCC.
27
Shrimanth Balasaheb Patil v. Hon'ble Speaker, Karnataka Legislative Assembly, 2019 SCC OnLine SC 1454
28
1992 Supp (2) SCC 651.
29
1994 Supp (2) SCC 641.
30
2011 SCC OnLine SC 791.
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could have been drawn that they had voluntarily given up their membership of the BJP,
thereby attracting the provisions of Paragraph 2(1)(a) of the Tenth Schedule.”

38. In the said case, a letter written by the parliamentarians to the Governor stating that they stood
disillusioned with the functioning of the government headed by the then Chief Minister was held to be
indicative of defection by the Speaker. The Supreme Court, in the challenge to the Speaker’s Order, held
that when the MLAs later clarified that they continued to be the members of the party and would support
the party’s government headed by another person, any conclusion drawn by the Speaker that said MLAs
stood disqualified from the posts of MLAs under Para 2(1)(a) was unwarranted and declared the
Speaker’s order to be invalid.31

39. It is submitted that in the instant case, the petitioner has not voluntarily given up his membership to the
Party. Mr. Apurv has merely criticized the Prohibition of Discrimination against Backward Classes
(Amendment) Bill, 2022. Mr. Apurv, himself belonging to the Backward Class, and also being a
representative of the Backward Class has the right to advance the grievances of his people.32 This shall,
by no stretch of imagination, tantamount to withdrawing his support from the government formed by the
Best People Party.

40. It is further submitted that the petitioner’s intention to continue supporting the Best People Party is further
evident from his conduct within the House. The petitioner abided by the three-line party whip issued by
the Party and accordingly voted in favour of the Amendment Bill.33 The petitioner has not conducted
himself in any manner hostile or prejudicial to the interest of the Best People Party and its government.

41. It is submitted that criticising the provisions of the Amendment Bill in the public, at the very best, would
indicate ‘dissent’ and not ‘defection’. That the Tenth Schedule was brought into the Constitution and is
termed as Anti-Defection Law; for ‘defection’ to take place, there has to be evidence of conduct, prima-
facie, indicating ‘crossing of floor’. Consequently, until and unless the conduct of nature akin to ‘crossing
of floor’ (defection) takes place, no conclusion can be drawn that the Petitioner defected. plaint can be
lodged far less entertained by the Speaker in the instant case.

3.3 THAT THE SPEAKER’S ORDER IS VIOLATIVE OF THE PRINCIPLES OF NATURAL JUSTICE

31
Id.
32
Moot Proposition.
33
Moot Proposition.
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42. It is submitted that in Kihoto Hollohan's case, this Court had held that the immunity granted under sub-
paragraph (2) of paragraph 6 was in respect of the procedural aspect of the disqualification proceedings,
but that the decision itself was not totally immune from judicial scrutiny. The Speaker’s Order is subject
to Judicial Review on grounds of non-compliance with the rules of natural justice.

43. In the case of Balchandra L Jarkiholi & Ors v. B.S.Yeddiyurappa & Ors34, the Supreme Court observed
that the Speaker’s action of not serving notices upon the parliamentarians and consequently not providing
them with an opportunity to meet the allegations made therein, amounted to denial of Principles of
Natural Justice and also revealed a partisan attitude in the Speaker’s behaviour.

44. It is humbly submitted that most recently also, in Shri Kshetrimayum Biren Singh v. The Honble Speaker,
Manipur Legislative Assembly & Ors,35 the SC set aside the Speaker’s Order of disqualification because
the Speaker preponed the hearing on the matter without informing the petitioners which led to the
petitioners being unrepresented.

45. It is submitted that in the instant case too, the president of the Best People Party moved an application to
the speaker of the house for disqualification of Mr. Apurv and the speaker disqualified him thereafter. The
dynastical politics within the party is very evident and the Speaker gave no chance to the Petitoner to
address the allegations levelled against him. It is therefore contended that the manner of disposal of
Application for Disqualification is violative of Principles of Natural Justice.

34
2011 SCC OnLine SC 791.
35
2021 SCC OnLine SC 1213.
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PRAYER

In the light of the arguments advanced, cases and authorities cited, the counsel for the Petitioner
humbly requests the Hon’ble Supreme Court of Indostan to adjudge and declare that -

1) The present writ petition is maintainable;

2) The Schedule X of the Constitution of Indostan curbs the freedom of Speech and Expression of
Parliamentarians;
3) The Speaker’s Order disqualifying Mr. Apurv is arbitrary.

And pass any other order, direction or relief that the court may deem fit in the best interests of
justice, fairness, equity and good conscience.

For this act of kindness, the petitioner shall duty bound forever pray.

Sd/-
COUNSEL FOR PETITIONER

XIII