TC- P03

3RD EDITION BAL GANGADAHAR TILAK NATIONAL

MOOT COURT COMPETITION, 2023

IN THE HON’BLE SUPREME COURT OF INDIANA

In the Matter Between

APPELLATE JURISDICTION
SLP NO. 2546 OF 2020

DR. BHOLENATH NAIK ……………………...…………………...…………..APPELLANT

v.
HON’BLE SPEAKER LOK SABHA ……………………………………....... RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S COMPANION
JUSTICES OF THE HON’BLE SUPREME COURT OF INDIANA

-MEMORANDUM ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

Sl. No. Topic Title Page No.

1. CAUSE TITLE (COVER PAGE) 1
2. TABLE OF CONTENTS 2
3. LIST OF ABBREVIATIONS 3
4. INDEX OF AUTHORITIES 4
5. STATEMENT OF JURISDICTION 7
6. STATEMENT OF FACTS 8
7. ISSUES RAISED 10
8. SUMMARY OF ARGUMENTS 11
9. ARGUMENTS ADVANCED 13

ISSUE 01: WHETHER THE SUPREME COURT OF

INDIANA HAS THE JURISDICTION TO ENTERTAIN THE
PRESENT PETITION? 13

ISSUE 02: WHETHER THE SPEAKER WHILE DECIDING

THE MATTER UNDER THE 10TH SCHEDULE SATISFIES
THE REQUIREMENT OF INDEPENDENT ADJUDICATORY
15
MACHINERY?
ISSUE 03: WHETHER THE 10TH SCHEDULE OF THE
CONSTITUTION PROHIBITING HONEST AND GENUINE
DISSENT DESERVES TO BE DECLARED AS
19
UNCONSTITUTIONAL?
ISSUE 04: WHETHER SECTION 2(B) OF THE 10TH
SCHEDULE VIOLATES PARLIAMENTARY PRIVILEGES
PROVIDED UNDER ARTICLE 105 OF CONSTITUTION?
23
10. PRAYER 28

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LIST OF ABBREVIATIONS

Sl.No. Abbreviation Description

1. AIR All India Reporter

2. Etc Etcetera

3. Govt Government

4. HC High Court

5. Hon’ble Honourable

6. No Number

7. Ors Others

8. Sec./ § Section

9. SC Supreme Court

10. SCC Supreme Court Cases

11. SCR Supreme Court Reporter

12. UOI Union of India

13. Vs Versus

14. W.P. Writ Petition

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INDEX OF AUTHORITIES
BIBLIOGRAPHICAL INFORMATION

I. CASES CITED:

Sl.No. Case Name Equivalent Citation(s)

1. A.V. Papayya Sastry v. Government of Andhra AIR 2007 SC 1546.

Pradesh
2. Balchandra L. Jarkiholi v. B.S. Yeddyurappa (2011) 7 SCC 1.

3. Chief Administrator cum Jt. Secretary, Government of AIR 1999 SC 186.

India v. D. C. Dass
4. City Corner v. P.A. to the Collector AIR 1976 SC 143.
5. Clerks of Calcutta Tramways v. Calcutta Tramways AIR 1957 SC 78.
Co. Ltd.
6. Durga Shankar v. Raghu Raj AIR 1954 SC 520.

7. Fazal Bhai Dhala v. Custodian-General, Evacuee (1962) 1 SCR 456.

Property
8. Jamshed Hormusji Wadia v. Board of Trustees AIR 2004 SC 1815.

9. Jyoti Basu v. Debi Ghosal (1982) 1 SCC 691.

10. KeishamMeghachandra Singh v. The Hon’ble (2020) SCCOnLine SC 55.
Speaker, Manipur Legislative Assembly and Ors.,
11. Kihota Hollohon v. Zachilhu (1992) 1 SCC 309.
12. KihotoHollohan v Zachillhu and Others (1992) 2 SCC 651.
13. Maneka Gandhi v. Union of India (1978) 1 SCC 248.

14. Mohan Lal v. Management, Bharat Electronics Ltd. AIR 1981 SC 1253.

15. Mohinder Singh Gill v. Chief Election Commr. (1978) 1 SCC 405.

16. N. Suriyakala v. A. Mohandoss (2007) 9 SCC 196.

17. Narpat Singh v. Jaipur Development Authority AIR 2002 SC 2036.

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18. People’s Union for Civil Liberties v UOI 2004 2 SCC 476.

19. Pubjab State Electricity Board v. Darbbara Singh AIR 2006 SC 387.

20. Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184.
21. Romila Thapar v Union of India AIR 2018 SC 4683 [66].
22. S. Rangarajan Etc vs P. Jagjivan Ram. (1989) 2 SCC 574.
23. ShrimanthBalasaheb Patil v. Karnataka Legislative (2020) 2 SCC 595.
Assembly
24. Siemens Eng &Mfg Co. v. Union of India AIR 1976 SC 1785.
25. Suresh Chandra v. State of Uttar Pradesh AIR 2005 SC 3120.
26. Vijayakant v. Tamil Nadu Legislative Assembly 2012 SCC Online Mad 1736.
27. Zahira Habibullah Sheikh v. State of Gujarat AIR 2004 SC 3467.

II. STATUTES REFERRED:

Sl. No. Statute Name

1. The Constitution of India

III. DICTIONARIES AND BOOKS/JOURNALS REFERRED:

1. D.D. Basu, Constitutional Law of India, Lexis Nexis (2013)

2. M.P. Jain, Indian Constitutional Law, Lexis Nexis (2015)

3. Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency

(2022)

4.
P.M. Bakshi, The Constitution of India (11th ed. Universal Law
Publishing Co. Pvt. Ltd)

5. A.R Khan,The Constitution of India (2nd ed. G.K Publications(P)

Ltd)

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6. Online Freedom of Speech and Expression: A Critical Analysis, 3 KIIT

Student L Rev 33 (2016)

7. Good Governance and Right to Information: A Perspective, 54 JILI (2012)

50

IV. ELECTRONIC/ONLINE SOURCES:

1. http://supremecourtofindia.nic.in
2. http://www.advocatekhoj.com
3. http://www.barcouncilofindia.org
5. http://www.manupatrafast.com/
6. https://indiankanoon.org/
7. https://www.lawteacher.net
8. SCC Online
9. http://www.legalservicesindia.com/

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STATEMENT OF JURISDICTION

It is humbly submitted that this Hon’ble Supreme Court has Jurisdiction to entertain
matters under Clause 1 of Article 136 of the Constitution of Indiana, 1950, which reads
as under:

“Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India”1.

The Petitioner humbly submit to the Jurisdiction of this Hon’ble Court. The present
memorandum sets forth the facts, contentions and arguments in the present case.

1
Part V of the Constitution of India, 1950
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STATEMENT OF FACTS

Indiana’s parliamentary democracy with its multi-party system:

• There are many national and regional political parties contributing towards national
politics, major among them were National Indiana Congress [herein after NIC] and
Independent Party of Indiana [herein after IPI]
• In general election of 2019 IPI got simple majority in Lok Sabha
• Later IPI was opposed not only by opposition party but also by the members of same
political party upholding the potentiality of having the Minister ship which was not
given by their party

Proposition of the Bill [The National Highway Bill 2017]:

• Proposed on 9th December 2020
• It was criticized by many members considering it as unnecessary as there was
availability of alternative of state highways. Especially by the senior leader of the party
Dr. Bholenath Naik has it was against the farmers interest as it would result in
acquisition of thousands of hectares of fertile land.
• 27th December 2020 was decided to be date of voting, as there was a strong opposition,
the party leader in Lok Sabha Mr. Abhay Thakkar issued a whip. Bill was passed with
narrow majority. While analyzing the result the ruling party found that two of its
members Dr. Bholenath Naik and Mr. Dependra Keshav were absent for the voting and
issued a show cause notice to them. To support his contention Mr. Dependra Keshav
provided required document but Dr. Bholenath Naik did not provide any such proof
and after few days, Dr. Bholenath Naik in one of the television Interview strongly
criticized the government policy as it was against the interest of farmers.

Action against Dr. Bholenath Naik by the speaker of Lok Sabha:

• Mr. Abhay Thakkar forwarded a petition to the speaker of Lok Sabha Mr. M.V
Narayanan and request was made to take action against Dr. Bholenath Naik. Notice
was issued to both the parties and asked to present their side within 5days. On 5th day
Dr. Bholenath Naik prayed for the adjournment but it was rejected.
•
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• On the basis of the evidences produced by both parties, the speaker held Dr Bholenath
naik liable for anti-party activities. Speaker said that opposing his own party in Lok
Sabha, criticizing government policy, publicly in an interview and remaining absent
for voting after whip issued by the party leader indicates Dr Bholenath naik disloyalty
towards the belief and agenda of his own party.
• By relying upon paragraph 2(b) of the 10th schedule of the constitution. Hon’ble
speaker disqualified Dr. Bholenath Naik’s Lok Sabha membership.

Strong contention by Dr. Bholenath Naik before Hon’ble Supreme Court:

• Dr. Bholenath Naik genuinely Consider his stand on proposed bill as rational and in
accordance with principle of representative democracy,and felt member of Lok Sabha
to be accountable to the people of his constituency and not to the party
• Paragraph 2 of the 10th schedule of the constitution empowers the ‘Despotic dictates’
of party whips and high command which undermines the democratic spirits
• Freedom of speech and expression which the essential features of inner party
democracy and it was his parliamentary privilege given under Article 105 of
constitution but anti-defection law is prohibiting honest and genuine dissent, hence it
is unconstitutional
• He further objected the impartiality of the proceeding before the speaker, who in spite
of holding the constitutional post continues membership of his original political party
(IPI) where he can continue with the office of speaker only with the support of
majority
• He stressed that the purpose and object of the Anti-defection law should be to ensure
loyalty of the number to the electorate voter and not to the stability of a particular
government.

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ISSUES RAISED

1.WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETITION?

2.WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER THE 10TH
SCHEDULE SATISFIES THE REQUIREMENT OF INDEPENDENT
ADJUDICATORY MACHINERY?

3. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING

HONEST AND GENUINE DISSENT DESERVES TO BE DECLARED AS
UNCONSTITUTIONAL?

4.WHETHER SECTION 2(B) OF THE 10TH SCHEDULE VIOLATES

PARLIAMENTARY PRIVILEGES PROVIDED UNDER ARTICLE 105 OF
CONSTITUTION?

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SUMMARY OF ARGUMENTS

1.WHETHER THE SUPREME COURT OF INDIANA HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETITION?

It is humbly submitted that Article 136 empowers the Supreme Court to grant in discretion
Special leave to Appeal from any judgement, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India. The Supreme
Court to intervene in controversies if such matters have not received sufficient attention from
the lower courts or Tribunal if a decision has led to grave injustice.

It is humbly submitted before this Hon’ble Court that there has been a serious miscarriage of
justice by speaker disqualifying the membership of Dr. Bholenath. The counsel for petitioner
would humbly request this Hon’ble court to correct the same and hear this matter.

2.WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER THE 10TH
SCHEDULE SATISFIES THE REQUIREMENT OF INDEPENDENT
ADJUDICATORY MACHINERY?

It is humbly submitted before the Hon’ble court that the speaker while deciding the matter
under the 10th schedule does not satisfies the requirement of independent adjudicatory
machinery, as speaker is never independent and impartial because most of the times speaker
has been appointed by the ruling party and always depends upon the continuous majority of
the house. The speaker who cannot stay aloof from the pressures and wishes of his political
party does not deserve to occupy his chair. Hence, it is humbly submitted that the speaker while
deciding the matter under the 10th schedule does not satisfy the requirement of independent
adjudicatory machinery.

3. WHETHER THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING

HONEST AND GENUINE DISSENT DESERVES TO BE DECLARED AS
UNCONSTITUTIONAL?

It is humbly submitted before the Hon’ble court If we go deep into the impact of this law, it
curbs the legislator’s freedom of opposing the wrong policies, bad leaders and anti-people bills
proposed by the ‘High Command’ in an arbitrary and undemocratic manner.
It is humbly submitted that Anti defection laws have constricted freedom of individual
representatives and thus doesn’t provide enough opportunity to these lawmakers to raise their
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voice, and give their honest dissent without being disqualified. Thus, it is high time that these
arbitrary rules which encroach on fundamental rights of elected representatives must be
considered unconstitutional.

4.WHETHER SECTION 2(b) OF THE 10TH SCHEDULE VIOLATES

PARLIAMENTARY PRIVILEGES PROVIDED UNDER ARTICLE 105 OF
CONSTITUTION?

It is humbly submitted before the Hon’ble court that section 2(b) of 10th schedule violates the
Art.105 a parliamentary privilege which is given to ensure that parliamentarians can work
effectively without any fear of retaliation. but under 2(1)(b) of Schedule X, the dissent of the
members has been considered to be their defection from the party they are associated with.
which ultimately lead to their disqualification from the House. Hence, it is submitted that This
is a gross violation of freedom of speech granted to politicians under Article 105 of the Indiana
constitution.

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ARGUMENTS ADVANCED

ISSUE 1. WHETHER THE SUPREME COURT OF INDIANA HAS THE

JURISDICTION TO ENTERTAIN THE PRESENT PETITION?

1. It is humbly submitted before the Hon’ble Court that this Hon’ble court has the
Jurisdiction to entertain the present petition.

1.1 The Appellant has Locus Standi to approach this Hon’ble Court
2 It is humbly submitted that Article 136 empowers the Supreme Court to grant in
discretion Special leave to Appeal from any judgement, decree, determination, sentence
or order in any cause or matter passed or made by any court or tribunal in the territory of
Indiana. It is humbly submitted that powers under Article 136 can be exercised against
any kind of judgement or order which is causing injustice to any party, and to serve the
need, the power under Article 136 is unfettered.2

3 In the case of Jamshed Hormusji Wadia v. Board of Trustees3, the Supreme Court
commented on the developing trend of settling disputes under Article 136 and it said that
it would become necessary for the Supreme Court to intervene in controversies if such
matters have not received sufficient attention from the lower courts or if a decision has
led to grave injustice. It is submitted that Article 136 is an over-riding power where under
the Court may generally step in to impart justice to remedy injustice4

4 It is humbly submitted before this Hon’ble Court that there has been a serious miscarriage
of justice by Speaker disqualifying the membership of Dr. Bholenath. The counsel for
petitioner would humbly request this Hon’ble Court to correct the same and hear this
matter.

4.1 Scope of Powers of this Hon’ble court under article 136 of constitution
5 The power has been held to be plenary, limitless5, adjunctive and unassailable6. The
Supreme Court can use the powers under Article 136 to impart justice and remedy any

2
Durga Shankar v. Raghu Raj, AIR 1954 SC 520.
3
Jamshed Hormusji Wadia v. Board of Trustees, AIR 2004 SC 1815.
4
Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036.
5
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
6
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467.
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injustice7 . The Supreme Court with regard to scope of Article 136 held that it is a
residual power which enables the Supreme Court to interfere with the judgement or order
of any court or tribunal in its discretion8 .

6 It is humbly submitted that if special leave is granted and the same is restricted to a
particular question, the Court is not constrained in any manner to restrict itself to hearing
only those matters9, insofar as an opportunity of being heard is giving to the opposite
party also10 . Hence, it is submitted that this Hon’ble Court can dwell into all matters,
including question of fact and decide this matter on merits and grant justice.

7 The Fact that the Parliament is an August Body of Coordinate constitution Position does
not mean that there can be no judicially manageable standards to review exercise of its
Power.11 Though Court cannot enquire into proceedings of the Parliament in case of gross
illegality or violation of Constitutional provision is shown, the Judicial Review is not
inhibited in any manner by Article 122 of Constitution of India.12

8 Therefore, it cannot dispute that this Court has the power of judicial review to examine the
action of the Assembly in suspending or expelling or imposing any penalty on any member
of the House.13

9 The Supreme Court has exercised its Jurisdiction under Article 136 under the following
circumstances-
1. When the Tribunal ostensibly fails to exercise its patent Jurisdiction.14
2. When there is an apparent error on the face of the decision15 .
3. The tribunal has erroneously applied well-accepted principles of Jurisprudence16

4. The tribunal acts against the principles of Natural Justice17, or has approached the
question in a manner likely to cause injustice18

7
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196.
8
Ibid.
9
Suresh Chandra v. State of Uttar Pradesh, AIR 2005 SC 3120.
10
Pubnjab State Electricity Board v. Darbbara Singh, AIR 2006 SC 387.
11
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184.
12
Supra
13
Vijayakant v. Tamil Nadu Legislative Assembly, 2012 SCC Online Mad 1736.
14
Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC 186.
15
Siemens Eng &Mfg Co. v. Union of India, AIR 1976 SC 1785.
16
Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78.
17
City Corner v. P.A. to the Collector, AIR 1976 SC 143.
18
Mohan Lal v. Management, Bharat Electronics Ltd., AIR 1981 SC 1253.
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10. It is humbly submitted that the Constitution Bench of Hon’ble Supreme Court in Kihoto
Hollohan v Zachillhu and Others19 held that Speaker/ Chairman while exercising
powers and discharging functions under the Tenth Schedule act as Tribunal, and though
Para 6 of Tenth Schedule refers that the order passed by Speaker is final however the
order passed can be subject to judicial review on four grounds : mala fides, perversity,
violation of constitutional mandate and order passed in violation of natural justice.

11. In the instant case, the speaker has disqualified the membership of petitioner which was
apparently error on the face of decision, violation of constitutional mandate and have
acted against the principles of natural justice which have caused injustice. Hence, there
is an over-whelming error on the part of speaker leading to severe injustice to the
petitioner.

12. It is pertinent to acknowledge that though originally, anti-defection act provided that
the presiding officer’s decision was final and could not be questioned in any court of
law. But, in Kihoto Hollohan20 case, the Supreme Court declared this provision as
unconstitutional on the ground that it seeks to take away the Jurisdiction of the Supreme
court and the high courts. Hence it is humbly submitted that this Hon’ble court have
Jurisdiction to entertain the present petition.

13. Thus, the Counsel for the Petitioner would like to invoke the Jurisdiction of this Hon’ble
Court and remedy the above injustice.

ISSUE 2. WHETHER THE SPEAKER WHILE DECIDING THE MATTER UNDER

THE 10th SCHEDULE SATISFIES THE REQUIREMENT OF INDEPENDENT
ADJUDICATORY MACHINERY?

1. It is humbly submitted before the Hon’ble court that the speaker while deciding the
matter under the 10th schedule does not satisfies the requirement of independent
adjudicatory machinery, as the speaker is never independent and impartial because
most of the times speaker has been appointed by the ruling party and always depends
upon the continuous majority of the house. In the Kihoto Hollan Vs Zachillu case21,
it was held that the speaker does not stand the test of independent and impartial

19
KihotoHollohan v Zachillhu and Others,(1992) 2 SCC 651.
20
Ibid.
21
Ibid.
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authority. Further it was held that investiture of the adjudicating jurisdiction in the
speaker would vitiate the provision on the ground of reasonable likelihood of bias and
lack of impartiality and therefore denies the imperative of independent adjudicatory
machinery.

2. The speaker is elected and held office on the support of majority party of their elections
to the office of the speaker of chairman. In order to the speaker to be independent he
should resign from the party so that there is no bias but this is not the case here and
hence, speaker could not be the final adjudicatory authority.

3. In the past, decision of the speaker with regard to disqualification have been
challenged before the court for being biased and partial. Several expert committees
and commissions, including the Dinesh Goswami Commission (1998), Commission
to Review the Constitution (2002) and the Law Commission (2015) have therefore
recommended that the defection cases must be decided by the President and Governor
for center and state respectively. Who shall act on the advice of Election
Commission. This is the same practice that is to be practiced for deciding question
related to disqualification of legislature on other grounds, such as holding on office
for profit or being of unsound mind, under the Constitution.

4. In case of Mohinder Singh gill v. chief election commissioner22, it was observed that
“Natural Justice is a sense of what is wrong and what is right”

5. The concept of fairness should be there in every action whether it is judicial, quasi-
judicial, administrative and or quasi administrative work. In the instant case speaker act
as a quasi-judiciary. Hence, he must ensure the fulfillment of natural justice.

6. The legal maxim Nemo judex in causa sua is a principle of natural justice which means
that “No one should be a judge in his own cause” because it leads to Rule of bias. Bias
is of many kinds one among them is personal bias and if we look into the definition or
the meaning of this personal bias, various factors contribute to personal in the
adjudicator for or against one party in a dispute before him. He may be a friend or
relation of the party or have business or professional relation with him or may have
some personal animosity or hostility against him.

22
Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405.
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7. Where the speaker relationship in the parliament falls under one among these Hence,
in the instant case Speaker acting as a judge in his own cause and disqualifying the
petitioner from the parliamentary membership amounts to personal bias.

8. So it is humbly submitted that all the decisions should be taken in accordance with the
principles of Natural Justice, but in the present case such decision was not made though
the speaker and the petitioner belonged to the same party which becomes the violative
of first principle of natural justice that is Nemo Judex in Causa Sua.

9. The maxim Audi alteram Partem means that no person can be condemned or punished
by the court without having a fair opportunity of being heard. In many jurisdictions, a
bulk of cases are left undecided without giving fair opportunity being heard. In the case
of Maneka Gandhi v. Union of India23, held that the principle of Natural Justice i.e.,
Audi alteram partem is a part of fundamental right.

10. In the case of Fazal Bhai v. Custodian24., it was held that valid and proper notice
should be given to the required parties of the matter to further proceed with the
procedure of fair trail method. Even if the statute does not include the provision of issue
of notice, then it will be given prior to making decision.

11. In the instant case, though the notice was given to the Dr Bholenath Naik but the proper
opportunity to hear from both the party principle did not followed here. Dr Bholenath
naik requested for adjournment was rejected by speaker.

12. It is humbly submitted that the doctrine of Natural Justice is not merely a matter of
procedure but of substance and any action taken in contravention of natural justice is
violative of fundamental rights guaranteed by Article 14.19, and 21 of the constitution.

13. In the case of Kihota Hollohon v. Zachilhu25, it was held that Democracy is a part of
the basic structure of the Constitution and free and fair elections with provision for
resolution of disputes relating to the same as also for adjudication of those relating to
subsequent disqualification by an independent body outside the House are essential
features of the democratic system in our Constitution. Accordingly, an independent

23
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
24
Fazal Bhai Dhala v. Custodian-General, Evacuee Property, (1962) 1 SCR 456.
25
Kihota Hollohon v. Zachilhu, (1992) 1 SCC 309.
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adjudicatory machinery for resolving disputes relating to the competence of Members

of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker
who is the authority in the Tenth Schedule to decide this dispute is dependent on the
continuous support of the majority in the House.

14. Therefore, the Speaker does not satisfy the requirement of such an independent
adjudicatory authority; and his choice as the sole arbiter in the matter violates an
essential attribute of the basic feature.

15. In the case of Shrinath Balasaheb Patil V. Hon’ble Speaker, Karnataka legislative
Assembly26, which is also known as Karnataka MLA disqualification case, here the
Supreme court made some crucial observations regarding the speakers. The Supreme
Court through multiple cases has asked the central government to amend the
constitution and prevent the speaker from acting on partisan lines and acting in an
undemocratic manner. The same could be done by taking away the power of the
speaker to decide these cases and creating a separate permanent tribunal that would
function for this purpose.

16. In the recent case of Keisham Meghachandra Singh v. The Hon’ble Speaker
Manipur27, the Supreme Court questioned the feasibility of putting the onus on the
speaker to objectively decide on disqualification cases, especially in a country where
party politics are often the deciding factor in everything. The judgement stated that only
swift and impartial disqualifications would give real teeth to the 10th schedule and that
could be achieved by placing this jurisdiction beyond someone who remains part of a
political party either de jure or de facto.

17. It is humbly submitted that Party affiliation often prevent the speaker from prompt
decisions especially if the impugned members defected to a party to which the speaker
themselves belonged. This completely makes the purpose of 10th schedule useless.

18. The Court further held in this case that a speaker who cannot stay aloof from the
pressures and wishes of his political party does not deserve to occupy his chair.

26
ShrimanthBalasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595.
KeishamMeghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly and Ors., (2020)
27

SCCOnLine SC 55.
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19. Hence the Counsel for Petitioner humbly Submits before this Hon’ble court that the
speaker while deciding the matter in 10th schedule does not satisfy the requirement of
independent adjudicatory machinery.

ISSUE 3: WHETHER THE 10th SCHEDULE OF THE CONSTITUTION

PROHIBITING HONEST AND GENUINE DISSENT DESERVES TO BE DECLARED
AS UNCONSTITUTIONAL?

1. It is humbly submitted before the Hon’ble court that the 10th Schedule of the constitution
prohibiting honest and genuine dissent deserves to be declared as unconstitutional. If we
go deep into the impact of this law, it curbs the legislator’s freedom of opposing the wrong
policies, bad leaders and anti-people bills proposed by the ‘High Command’ in an arbitrary
and undemocratic manner. This law has given additional dictatorial power to the political
party to keep the flock together for an entire term.

2. In the instant case, the Hon’ble speaker disqualified Dr Bholenath Naik from the membership
of the parliament for opposing the government policy. In response to this Dr Bholenath Naik
approached the Hon’ble Court challenging the constitutional validity of the 10th schedule
which prohibits honest and genuine dissent.

1.1: Paragraph 2 of the 10th Schedule violates honest and genuine dissent.

3. Para 2 (1)(a) speaks about disqualification of members of parliament on ground of voluntarily

giving up their membership. This Schedule violates the members right to ask for an efficient
leader for the party if they are not satisfied. In the case of Balachandra L Jarkiholi and Others
v. B Yeddyurappa and Others28,the 13 members of BJP wrote an identical letter to the
Governor of Karnataka indicating that they had been elected as MLAs on the ticket of BJP but
had lost their hope with the leadership of BJP, and consequently withdrawn their support to his
government. Subsequently, Yeddyurappa, filed an application before the Speaker seeking
disqualification of 13 MLAs on the ground that they had voluntarily given up their membership.
The Speaker however held members had voluntarily given up their membership. Following this,
the disgruntled MLAs filed an appeal from this decision before the Karnataka High Court, where
a majority of judges upheld the decision of the Speaker.

28
Balchandra L. Jarkiholi v. B.S. Yeddyurappa, (2011) 7 SCC 1.
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On appeal the Supreme Court held that the contents of the Letters clearly showcased that the
MLAs had not withdrawn their support to the BJP, but had merely expressed their lack of
confidence in the Yeddyurappa government, and were willing to support any BJP government
headed by another leader. Further, without delving into the nuances of dissent and based only
on the material before it, the SC came to the conclusion that the Speaker had acted in a partisan
manner and the proceedings conducted by him did not meet the twin tests of natural justice and
fair play.29 In view thereof, the SC quashed the decision of the Speaker disqualifying the 13
MLAs from their membership under Paragraph 2(1)(a). Further, it also set aside the majority
judgment passed by the Karnataka High Court.30

4. In the instant case it is to be noted that Bholenath Naik did not resign his membership of
parliament. He has opposed the bill which was against the farmers interest because of that he
was disqualified from membership projecting it as he was opposing his own party and it leads
to the voluntary giving up. It is pertinent to refer the case of S. Rangarajan v. P. Jagjivan
Ram31 where it was said that the State cannot prevent open discussion and open expression,
however hateful to its policies. A democracy will not be a democracy if dissent is not given a
space, and if speaker disqualifies Dr.Bholenath Naik for opposing the bill, then member’s honest
dissent will be curbed by 10th schedule.

5. Para 2(1)(b) tells that 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.

6. It is humbly submitted that the Schedule X has failed to protect the sole thing it was brought
in to protect. In our parliamentary structure, all the decisions are to be taken through debate
and discussion. But paragraph 2(1)(b) of the schedule has hindered both. It says that once
a Whip is passed by the chief on any particular matter which is to be brought in the house
for debate and discussion, all the members have to comply with the whip and cannot vote

29
Ibid.
30
Ibid.
31
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
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in contrary, if they do so they may be labelled as defectors and action might be taken by
the speaker/ chairman of the house.

7. Even if the member sees merit in a contrary opinion, this provision restricts individual
decision-making and mandates a faithful adherence to the directions of the party whip. By
curtailing a parliamentarian’s discretion in voting, this provision has effectively mitigated
the need for debate in Parliament.

8. An obvious corollary of encumbered voting is that the law has negatived any scope for
expressing dissent in the House. For any parliamentarian to be effective they should have
an option of intra party dissent and should be able to vote according through their
conscience, instead of the decision of the party. Allowing for such a provision would
uphold the essence of democracy where dissent is crucial for the system to be considered
healthy.

9. In the case Jyoti Basu v. Debi Ghosal32,it was held that the right to vote for the candidate
of one’s choice is nothing but freedom of voting, and it is the essence of democratic polity.
While the right to vote is a statutory right, the freedom to vote is considered a facet of the
fundamental right enshrined in Art. 19(1)(a), but it was curtailed in the 10th Schedule.

10. It is humbly submitted that the legislature is one of the three organs of the government. The
three organs keep a check on each other as a part of their functions. The legislature also
checks on the executive and to enable that, the legislature discusses and debates on public
interests and bills. This process is of the highest way of keeping a check on the executive
is very crucial for the nation. Paragraph 2(1)(b) defies this right and the basic feature of
democracy where there be a discussion and dissent.

11. The parliament rarely argues any bill in depth before passing it in the house and is easy to
pass because the ruling party has a majority in the house and any member cannot defer the
whip passed by the chief and if they do so they could be held guilty and considered as a
defector and might forego the membership of the house.

12. The Women’s Reservation Bill, 2010 was tabled in the Rajya Sabha. It was reported that
several parliamentarians had voted in favour, despite being vehemently opposed to the bill,
owing to being bound by a whip. There are several such instances and these instances show

32
Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691.
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us the need for change in our laws for effective procedure. The member should be able to
show their dissent and allow them to speak their mind instead of just being a puppet.

13. The Kihoto Hollohan judgment has laid why a debate is crucial and incentivizing the
members to debate. Debate and expression of different points of view, thus, serve an
essential and healthy purpose in the functioning of Parliamentary democracy. At times such
an expression of views during the debate in the House may lead to voting or abstinence
from voting in the House otherwise than on party lines.

14. In the case Romila Thapar v. Union of India, Justice DY Chandrachud, a sitting Judge of
the SC, has recognised dissent as “a symbol of a vibrant democracy”. 33 But the 10th
schedule which consider dissent as defection, violates the basic feature of vibrant
democracy by not allowing members to give their honest dissent, if they defer the whip
passed by the chief and if they do so they could be held guilty and considered a defector
and might forego the membership of the house

15. In the instant case Dr.Bholenath naik who was giving his honest dissent that the bill goes
against the farmers interest and which was in accordance with principles of representative
democracy, was considered as defection by speaker and disqualified the membership under
10th schedule which is arbitrary by encroaching the members fundamental right of freedom
of speech and expression.

16. It is humbly submitted that Anti defection laws have constricted freedom of individual
representative and thus doesn’t provide enough opportunity to these lawmakers to raise
their voice, and give their honest dissent without being disqualified. Thus, it is high time
that these arbitrary rules which encroach on fundamental rights of elected representative
must be considered unconstitutional. Hence it is humbly submitted that the 10th schedule
which prohibits the honest dissent without being disqualified deserves to be declared as
unconstitutional.

33
Romila Thapar v Union of India.AIR 2018 SC 4683 [66].
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ISSUE 4. WHETHER SECTION 2(b) OF THE 10th SCHEDULE VIOLATES

PARLIAMENTARY PRIVILEGES PROVIDED UNDER ARTICLE 105 OF
CONSTITUTION?

1. It is humbly submitted before the Hon’ble court that section 2(b) of 10th schedule
violates parliamentary privileges provided under Article 105 of constitution.

2. To ensure that parliamentarians can work effectively, they are granted a number of
privileges. In terms of Art. 105 of the Constitution, the nature of parliamentary
privileges are as follows;

ART.105(1): “Subject to the provisions of this Constitution and the rules and
standing orders regulating the procedure of Parliament, there shall be freedom of
speech in Parliament.

ART.105(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 […]”

4.1 Violation of Article 105(1) of Constitution

3. It is humbly submitted before the Hon’ble court that section 2(b) of 10th schedule
violates the Art.105(1), which is a parliamentary privilege which is given to ensure
that parliamentarians can work effectively without any fear of retaliation.

ART.105(1) tells that “Subject to the provisions of this Constitution and the rules
and standing orders regulating the procedure of Parliament, there shall be freedom
of speech in Parliament.

4. This privilege bestows on the member of the House a right similar to that contained
in Art. 19(1)(a), which guarantees everyone the right to free speech and expression.
While reasonable limitations apply in the case of Art. 19, none have been imposed
in the case of Art.105, This reflects the fact that lawmakers have more rights.

5. Members, unlike citizens under Art. 19, can disparage one another without fear of
retaliation, but under 2(1)(b) of Schedule X, the dissent of the members has been
considered to be their defection from the party they are associated with, which

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ultimately lead to their disqualification from the House. Hence it is submitted that
this is a gross violation of freedom of speech granted to politicians under
Article 105(1) of the Indiana constitution.

6. It is also Pertinent to refer to the case of S. Rangarajan v. P. Jagjivan Ram34

wherein it was said that the State cannot prevent open discussion and open
expression, however hateful to its policies. A democracy will not be a democracy if
dissent is not given a space.

7. In the instant case, one of ground taken by the Hon’ble speaker for disqualification
is that opposing his own party in Lok Sabha and criticizing the government policy,
which is arbitrary, as it was indeed a parliamentary privilege under Art.105(1) of
members to tell their views and opinion in parliament.

8. A primary function of Parliament is to debate and pass resolutions freely on

subjects of its own choosing. This is a cornerstone of parliamentary democracy.
The performance of this function is secured by the members of each House having
the right to say what they will i.e., freedom of speech, and discuss what they will
i.e., freedom of debate.

9. If we refer the facts of the instant case, many members of Lok Sabha felt that the
bill is unnecessary as there is availability of alternative state highways. Dr
Bholenath opposed the bill as it results in acquisition of thousands of hectares of
fertile land which indeed goes against the farmer’s interest. It is pertinent to note
that Dr Bholenath’s stand on bill was rational and in accordance with the
principles of representative democracy.

10. The speaker further observed that “voters gave votes to particular candidate as
they supported the agenda of that political party which he was representing and
not merely to an individual candidate”. This contention of the speaker is in
violation of the principle of representative democracy because it empowers the
party, and undermines the relationship between the elected representatives and
their constituents.

11. Hence it is humbly submitted that speaker decision of disqualification is arbitrary/

34
S. Rangarajan Etc vs P. Jagjivan Ram., (1989) 2 SCC 574.
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invalid.

12. And also, Counsel for Petitioner humbly submits that the freedom to form an
opinion is implied under the freedom of speech irrespective of the fact that the
opinion is in the favour of the majority opinion or against it. In a democratic
country, dissent forms the basis for it and is vital in the parliament. But under
2(1)(b) of Schedule X, the dissent of the members has been considered to be their
defection, which ultimately leads to his disqualification from the House.

13. Hence it is submitted that section 2(b) of the 10th schedule violates the freedom of
speech and expression and the parliamentary privilege provided under article 105(1)
of constitution.

4.2 Violation of Article 105(2) of Constitution

14. Art.105(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 […]”

15. Article 105 of the Constitution35vests the parliamentarians with the privilege of
having the freedom of speech which includes their freedom to vote in the parliament
for which they will not be held liable under any proceedings in the court. This
privilege grants the right akin to the fundamental rights under Article 19(1)(a)36 of
the Constitution.

16. It is humbly submitted before this Hon’ble court that the right to vote for someone
of our own choice without any direction from someone forms the essence of the
democracy, and the curtailment of the right to freedom of vote under Paragraph
2(1)(b) of Schedule X37 is violative of the privilege granted under Article 105 and
the fundamental right under Article 19(1)(a) of the Constitution.

17. It is pertinent to acknowledge that Paragraph 2(1)(b) of Schedule X not just

curtails the shifting of allegiance but also the voting rights of the representatives is

35
The Constitution of India, 1950.
36
Ibid.
37
The Constitution of India, 1950.
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also censured wherein if the representative votes for a motion which is contrary to
the stance taken by his party, then it is under the discretionary power of his party to
expel him which can ultimately lead to his disqualification from the House. This is
a gross violation of parliamentary privileges under Article 105 of the Constitution.

18. The right to vote for or against party lines in Parliament is a genuine act of free
expression. This freedom of expression is especially important in Parliament since
it can serve as a source of discontent in governance.

19. The right to cast the vote is also covered in the privilege under Article 105(2).38
The Hon’ble Supreme Court has also held that the right to cast vote of one’s own
choice falls within the ambits of the “freedom of speech and expression” since it is
also a way of expressing one’s feelings or opinions towards something or
someone.39

20. The right to vote for someone of our own choice without any direction from
someone forms the essence of the democracy, but Section 2(b) of the Tenth
Schedule, puts the Member of Parliament into the straight jacket of obedience to
the despotic dictates of the party whips which undermines the democratic spirit. It
also violates the principle of representative democracy by empowering the party,
and undermining the relationship between elected representatives and their
constituents.

21. According to 2(1)(b) of Schedule X, the dissent of the members has been considered
to be their defection from the party they are associated with, this has led to a huge
decrease in the authority of the members to exercise their own discretion while
casting votes.40

22. In the instant case Dr. Bholenath was disqualified for opposing his own party in
Lok Sabha for the bill of construction of highway as it was against farmer’s interest.
Even though his stand was rational and in accordance with principles of
representative democracy he was disqualified.

38
The Constitution of India, 1950.
39
People’s Union for Civil Liberties v UOI 2004 2 SCC 476.
40
Law Commision of India, Reform of the Electoral Laws, 170 th Report Part-2 Chap 4.
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23. The suppression of the members who have been chosen by the people to represent
their voices are being oppressed by their leaders in name of whip and this is very
disappointing in a democratic country like Indiana.

24. Hence it is humbly submitted before this Hon’ble Court that section 2(b)of 10th
schedule which disqualifies an individual legislator from voting against the wishes
of his party whip violates the right to freedom of vote, which is a parliamentary
privilege provided under Art.105(2) of constitution.

25. The anti-defection law aims to keep the government stable by preventing legislators
from switching sides. However, this statute prevents a legislator from voting in
accordance with their conscience, judgment, or the interests of their constituents.
This condition obstructs the legislature's oversight responsibility for the
government by assuring that members vote based on party leadership decisions
rather than what their people want them to vote for.

26. In the instant case Bholenath was considered as defector for being contrary to the
whip passed, even though his stand was rationale and in accordance with the
principle of representative democracy.

27. Therefore, it is humbly submitted before this Hon’ble Court that Section 2(b) of
the 10th Schedule violates parliamentary privileges provided under Article 105 of
Constitution.

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:

1. Allow the Petition

2. Declare that the speaker does not satisfy the requirement of independent adjudicatory
machinery

3.Declare that 10th schedule is unconstitutional.

4. Declare that section 2(b) of 10th schedule violates parliamentary privileges.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE APPELLANT.

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