IN THE HONORABLE HIGH COURT OF JUDICATURE AT MADRAS
(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA) W.P NO. Of 2012
vs
Writ Petition
Counsel On Behalf Of The Petitioner
TABLE OF CONTENTS
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER
INDEX OF AUTHORITIES
Books Referred:
The Constitution Law of India- Dr. J.N.Pandey
The Constitution Law of India- M.P.Jain
The Constitution Law of India- P.M.Bakshi
Lecture On Administrative Law- C.K.Takwani
Administrative Law- I.P.Massey
Statues Referred:
The Constitution Of India, 1950
Websites Referred:
www.prsindia.com
www.indialawjoural.com
www.indiakannon.com
www.leagalindia.com
List of Case Cited
List Of Abbreviations:
Sc- Supreme Court
ie- That is
Art- Article
STATEMENT OF JURISDICTION
Petitioner has invoked the Writ Jurisdiction of this Honorable
High Court of Madras under Article 226 for restoration of their
membership.
STATEMENT OF FACTS
Mr. Kumar was the Chief Minister of a State in India the Legislative Assembly of which had 100 members. He enjoyed the support of a majority consisting of 56 members of his party, one detached member of his party) and 3 independent members.
In order to pull down the government of Mr. Kumar 7 members of ruling party, one detached member and three independents together expressed lack of confidence in him and approached the Governor with a joint memorandum against Chief Minister withdrawing support to him.
The Speaker quickly invoked the Anti- Defection law and after giving the right of hearing for clarifying their position disqualified them from membership of the Assembly on the ground that their action of
withdrawing support amount to defection under Para 2 (a) of the 10th schedule as they were expected to fulfill the aspirations of voters and implement the manifesto of the ruling party.
They openly hobnobbed with the opposition. This conduct was
incompatible with the continuance of their membership of the House as it was breach of loyalty and political morality. This reduced the strength of the Assembly from 100 to 89.
As a consequence the government of Mr. Kumar could not be pulled down and on the direction of the Governor he won the vote of
confidence with the support of 49members of his party. Aggrieved by the decision of the Speaker the disqualified
members approached the High Court of their State under Art. 226 for restoration of their membership.
They questioned the decision of the Speaker inspite of not being reviewable under paragraph 10 of the 10th Schedule of the
Constitution of India.
They challenged the said decision on various grounds namely violation of their right to honest dissent (freedom of conscience voting) implicit in their fundamental right to freedom of expression enshrined in Art. 19 (1)(a). They further stated that it makes the leader of ruling party
dictatorial and members of the party his dummies.
Further their case fell outside the scope of anti-defection law. The
Speaker was biased as mere withdrawal of support does not lead to the inference of incurring disqualification under the aforesaid law.
The rebel members of the ruling party particularly stressed the point that they did not give up party membership which was necessary to attract anti-defection law (Para 2(a) of the 10th Schedule to the Constitution).
STATEMENT OF ISSUES
1. Whether the speaker can exercise his right under Anti-Defection law or not?
2. Whether the speaker act amounts to bias?
3. Whether the Article 19(1)(a) has been violated by the speaker?
4. Whether the High Court has jurisdiction to hear the matters for disqualification of the members of the Legislative Assembly?
SUMMARY OF ARGUMENTS
1. Whether the speaker can exercise his right under Anti-Defection law or not?
2. Whether the speaker act amounts to bias?
3. Whether the Article 19(1)(a) has been violated by the speaker?
4. Whether the High Court has jurisdiction to hear the matters for disqualification of the members of the Legislative Assembly?
MEMORIAL FOR THE PETITIONER
ARGUMENTS ADVANCED
Speaker’s Decision Under Anti Defection Law:
The 10th Schedule to the Constitution, referred to as the “Anti-Defection Law” was inserted by the 52nd Amendment in 1985. Anti Defection Law provide disqualification of members from
parliament and assembly in case of defection from one party to other. The object is to crub the evil of political defections motivated by the lure of office or other similar consideration which endanger the foundation of our democracy.
The remedy proposed to disqualify the members of either house of the State Legislature who is found to have defected from constituting as a member of the house
MEMORIAL FOR THE PETITIONER
Article 191 Disqualifications for membership –
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) If he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder
(b) If he is of unsound mind and stands so declared by a competent court;
(c) If he is an undischarged insolvent;
(d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) If he is so disqualified by or under any law made by parliament. (2) A person shall be disqualified for being a Member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule
Disqualification On The Ground Of Defection-
(1) Subject to the provisions of [paragraphs 4 & 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; (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.
Explanation- For the purposes of this Sub-Paragraph-
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;
(b) a nominated member of a House shall.-
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.
(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(4) Not withstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the
Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall.-
(i) where he was a member of a political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;
(ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this
paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph.
In a landmark Judgment of Kihota v. Zachilu the Sc has struck down para 7 of the Anti-Defection Law which provided that the speaker’s decision regarding the disqualification shall be final and no court could examine its validity.
The court held that the function of the speaker, while applying Anti-Defection Law is like that of a Tribunal and therefore is open to Judicial Review
Speaker Act Amounting To
Bias-Bias means an operative prejudice weather conscious or unconscious in relation to a party or a issue . Therefore if a person for whatever reason cannot take an objective decision on the basis of evidence on record he shall be said to be biased.
A person cannot take an objective decision in a case in which he has an interest for, as human psychology tells us very early can people take decision against their own interest.
There are three types of bias
Personal Bias
- Various factors contribute to personal bias
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 some business or professional relation with him, or
may have some personal animosity or hostility against him
Pecuniary Bias
-There is a presumption that any direct finance interest, however small, in the matter in dispute disqualifies the person from adjudicating. Membership of a company , anassociation or other organization in which he is financially
interested may operate as a bar to adjudicate, whereas mere bare liability to cost where the decision itself will involve no pecuniary loss will
Bias As To Subject Matter Or Official Bias-
Bias may arise because adjudicator may have a general interest in subject matter in dispute because of his association as a member or otherwise of a private body, or with the administration in his official capacity. Generally speaking these do not operate as disqualification, unless the adjudicator has intimately identified himself with the issues in question.
Bias Acting under Dictation
The deciding authority decides any matter purely as per the dictation of his superior official then his decision is invalid due to bias.
Here the dictation of the superior must be compulsorily obeyed by the deciding authority. A general direction if not compulsory does not violate decision.
However dictation is different from directions given by some
official. Direction means guidance by superior authority as to now the case is to be decided by the authority.
According to this case it is stated as it makes the leader of the ruling party ( i.e Mr.Kumar Chief Minister) dictatorial and members of the party as his dummies. So the speaker decision was naturally biased.
As the Speaker was biased as mere withdrawal of support does not lead to the interference of incurring disqualification under the aforesaid law.
Violation of Article 19 (1) (a) By the Speaker
Article 19(1) (a) says that all citizens shall have the right to freedom of speech and expression.
Meaning
-Freedom of speech and expression means the right to express one’s conviction and opinions freely by words of mouth, writing, printing or any other mode.
It includes the expression of one’s ideas through any communicable medium or visible representation.
PRAYER
In light of the facts stated, arguments advanced and authorities cited, the petitioner humbly prays before the Honorable Court to be
graciously pleased to declare:
Speaker’s act amounts to Bias
Restore the membership of the 11 speakers
