TEAM CODE –HP

4TH NATIONAL VIRTUAL MOOT COURT COMPETITION, 2023

IN THE HONOURABLE SUPREME COURT OF INDIGO

JANSEVA (NGO)………….………………………….…….……………. PETITIONER

VERSUS

UNION OF INDIGO …………...…….…………………………….……………. RESPONDENT

FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIGO

MEMORIAL FILED ON BEHALF OF RESPONDENT

- UNION OF INDIGO -

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT Page 1

 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS………………………….…..Pg. 3

2. INDEX OF AUTHROITIES……………………………… Pg. 4

3. STATEMENT OF FACTS…………………………………Pg. 5

4. ISSUES RAISED…………………………………………...Pg. 6

5. ARGUMENTS ADVANCED…………………………….. Pg. 7 to 12

5.1. Whether the changes made by the 52nd amendment constitutionally valid

or not?

5.2. Whether the provisions of the Act violate the fundamental freedoms of

speech. expression and association?

PRAYER………………………………………………........ Pg. 13

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 LIST OF ABBREVIATIONS

ABBREVIATION DEFINITION
@ Alias

AIR All India Reporter

Art. Article

P&H Punjab and Haryana HC

Anr Another

Bom Bombay

Nag Nagpur

Cal Calcutta

cl. Clause

Art. Article

SCR Supreme Court Reports

SC Supreme Court

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 INDEX OF AUTHORITIES

A. CASES CITED:
 Brundaban Nayak v. Election Commission of India & Anr, [1965] 3 SCR
53
 Commissioner of Income-tax v. Ajax Products Ltd, [1965] 1 SCR 700
 Makhan Singh v. State of Punjab, [1964] 4 SCR 797
 Parkash Singh Badal & Or’s. v. Union of India & Or’s, AIR 1987 P&H
263
 Kihoto Hollohan v. Zachillhu and Others, 1992 SCR (1) 686

B. STATUTES AND RULES:

 Bare Act, Constitution of India, 1950
 PIL Guidelines, Supreme Court of India

C. ARTICLES, TREATISES:
 The Constitution of India, Article 136
 The Constitution of India, Article 226
 The Constitution of India, Article 227
 The Constitution of India, Article 122
 The Constitution of India, Article 212

D. BOOKS, REPORTS AND DIGESTS

 G.C Malhotra, Anti-Defection law in India and the Commonwealth
(Metropolitan Book Co. Pvt. Ltd, 1st edition., 2005).
 Indian Polity by M. Laxmikanth
 Indian Constitutional Law by M.P. Jain
 Introduction to the Constitution of India by DD Basu

E. LEGAL DATABASE:
1. Manu Patra
2. SCC Online

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 STATEMENT OF FACTS

1. Political Structure: Indigo operates as a sovereign, socialist, secular,

democratic, and republican country with a federal system of governance.

2. Leadership Roles: The President heads the nation, while the Prime
Minister oversees the Council of Ministers. Parliament comprises Lok Sabha
and Rajya Sabha, elected directly or indirectly by citizens.

3. State Governance: Each state has its own government with a Governor as
the head and a Chief Minister leading the Council of Ministers. State
legislatures may be bicameral or unicameral, consisting of Legislative
Assembly and Legislative Council.

4. Representation: Members of Parliament (MPs) are elected to Lok Sabha

directly, while Rajya Sabha members are elected indirectly. Members of the
Legislative Assembly (MLAs) are directly elected, and Legislative Council
members are chosen indirectly.

5. Election Oversight: An Independent Election Commission ensures free

and fair elections in the nation at regular intervals.

6. Anti-Defection Law: The 52nd Amendment introduced the Anti-Defection

law to prevent politicians from changing parties after being elected. However,
it has been exploited, prompting a legal challenge to its constitutionality.

7. Legal Challenge: The NGO "JANSEVA" filed a Writ Petition in the Supreme
Court, challenging the constitutionality of the Anti-Defection law due to
misuse by politicians attempting to manipulate party affiliations post-
election.

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 STATEMENT OF ISSUES

The Respondent submit the following issues for consideration in the

present case.

ISSU[Link] Whether the changes made by the 52nd amendment constitutionally

valid or not?

ISSU[Link] Whether the provisions of the Act violate the fundamental freedoms
of speech. expression and association?

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 ARGUMENTS ADVANCED

ISSU[Link] WHETHER THE CHANGES MADE BY THE 52ND AMENDMENT

CONSTITUTIONALLY VALID OR NOT?

1. The Respondent humbly submitted to this hon'ble court that changes

made through 52nd CA is constitutionally valid under the principles of
democracy, free and fair election and parliamentary governance in
Indigo because paragraph 7 of the Tenth Schedule inserted in the
constitution of India by the Constitution (Fifty-Second Amendment) Act,
19851 it doesn’t takes away the jurisdiction of the Supreme court under
article 1362 and that of the High Courts under Articles 226 3 and 2274
of the constitution of Indigo because the finality clause with the word
"final" in paragraph 6(1) of the Tenth schedule does not completely
exclude the jurisdiction of the Courts under Articles 136, 226 and 227
of the Constitution. But it does have the effect of limiting the scope of
the jurisdiction. If the intention is to exclude the jurisdiction of the
superior Courts, the language would quite obviously have been
different.5
2. The clause in Para 6(1) of the Tenth Schedule to the Constitution which
says that the decision of the Chairman or as the case may be, the
speaker of the House shall be final is not decisive. Such a finality clause
in a statute by itself is not sufficient to exclude the jurisdiction of the
High courts under Articles 226 and 227 and the Supreme Court under
Article 136 of the Constitution, the finality being for the statute alone.
This is apart from the decision being vulnerable on the ground of
nullity. Sub-para (1) alone is, therefore, insufficient to exclude the
extra-ordinary jurisdiction of the High Courts and the plenary
jurisdiction of this Court.

1
The Constitution (Fifty-Second Amendment) Act, 1985
2
Supra Note 2
3
Supra Note 3
4
Supra Note 4
5
Brundaban Nayak v. Election Commission of India & Anr, [1965] 3 SCR 53

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 3. In the case of Commissioner of Income-tax v. Ajax Products Ltd 6, court
held that the ambit of a legal fiction must be confined to the limitation
implicit in the words used for creating the fiction and it cannot be given
an extended meaning to include therein something in addition. In
construing the fiction, it is not to be extended beyond the language of
the Section by which it is created and its meaning must be restricted
by the plain words used. It cannot also be extended by importing
another fiction.
4. The fiction in Paragraph 6(2) attracts an immunity from mere
irregularities of procedures. The very deeming provision implies that the
proceedings of disqualification are, in fact, not before the House; but
only before the Speaker a specially designated authority. The decision
under Paragraph 6(1) is not the decision of the House, nor is it subject
to the approval by the House. The decision operates independently of
the House. A deeming provision cannot by its creation transcend its
own power. There is, therefore, no immunity under Articles 122 7 and
2128 from judicial scrutiny of the decision of the Speaker or Chairman
exercising power under Paragraph 6(1) of the Tenth Schedule.
5. The scope of judicial review under Articles 136, 226 and 227 of the
Constitution in respect of an order passed by the Speaker/Chairman
under Paragraph 6 would be confined to jurisdictional errors only, viz.,
infirmities based on violation of constitutional mandate, mala fides,
non- compliance with rules of natural justice and perversity. But
Judicial review cannot be available at a stage prior to the making of a
decision by the Speaker/Chairman would not be permissible. Nor
would interference be permissible at an interlocutory stage of the
proceedings. Exceptions will, however, have to be made in respect of
cases where disqualification of suspension is imposed during the
pendency of the proceedings and such disqualification or suspension is

6
Commissioner of Income-tax v. Ajax Products Ltd, [1965] 1 SCR 700
7
The Constitution of India, art.122
8
The Constitution of India, art.212
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 likely to have grave, immediate and irreversible repercussions and
consequences. 9
6. The words "any direction" occurring in Paragraph 2(1)(b) of the Tenth
Schedule require to be construed harmoniously with the other
provisions and appropriately confined to the objects and purposes of
the Schedule. Those objects and purposes define and limit the contours
of its meaning. The assignment of a limited meaning is not to read it
down to promote its constitutionality but because such a construction
is a harmonious construction in the context. There is no justification to
give the words a wider meaning. 10
7. While construing Paragraph 2(1)(b) it cannot be ignored that under the
Constitution members of Parliament as well as of the State Legislature
enjoy freedom of speech in the House though this freedom is subject to
the provisions of the Constitution and the rules and standing orders
regulating the Procedure of the House. The disqualification imposed by
Paragraph 2(1)(b) must be so construed as not to unduly impinge on
the said freedom of speech of a member. This would be possible if
Paragraph 2(1)(b) is confined in its scope by keeping in view the object
underlying the amendments contained in the Tenth Schedule, namely,
to curb the evil or mischief of political defections motivated by the lure
of office or other similar considerations.

ISSUE: 2: WHETHER THE PROVISIONS OF THE ACT VIOLATE THE

FUNDAMENTAL FREEDOMS OF SPEECH. EXPRESSION AND
ASSOCIATION?

8. The Respondent humbly submitted to this hon'ble court that the Tenth
Schedule does not violate the Right to Freedom of Speech and
Expression of the Parliamentarians and Legislators. The right to
freedom of speech and expression is subject to reasonable restriction,
as it is not an absolute right.

9
Makhan Singh v. State of Punjab, [1964] 4 SCR 797
10
Parkash Singh Badal & Or’s. v. Union of India & Or’s, AIR 1987 P&H 263
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 9. This right is guaranteed to every citizen, including the legislators and
the parliamentarians; thus, this was made a ground to question the
legitimacy of Para 2 of the schedule (Grounds for disqualification). It was
held by the Supreme Court in KIHOTO HOLLOHON V. ZACHILHU AND ORS11 the
case that the Tenth Schedule does not subvert the rights of elected
members of parliament and the legislature, and, thus, it did not violate
Article 105 and Article 195 of the constitution.
10. While holding this, the Supreme Court expressed that the prov isions of
the Tenth Schedule are salutary and intended to strengthen the fabric
of Indian parliament democracy while curbing unprincipled and
unethical political defections.
11. The constitution is flexible to provide for the compulsions of the
changing times that the freedom of speech of a member is not an
absolute freedom, and also that the political party functions on the
strength of shared beliefs, it being the cost of the label of the party under
which their representative has been elected that he must not vote
against it.
12. The right of a parliamentarian is indeed not an absolute right and is
thus subject to reasonable restrictions. The right of a parliamentarian
to the freedom of speech is provided for under Article 105(2). has places
even above the fundamental right as guaranteed under Article 19(1)(a)
of the Constitution of Indigo.
13. Political defections in the lure of power and money inducements is also
clearly a corrupt practice, therefore not falling within the immunity
granted to a member of the house.
14. Moreover, it is important to realize that it must be exercised responsibly
to uphold the principles of democracy and the integrity of the political
process.
15. Adding Further, here, the counsel for the petitioner would like to bring
a major drawback in the anti-defection law: Individual defections are

11
Kihoto Hollohan v. Zachillhu and Others, 1992 SCR (1) 686
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 punished while mass defections are not, while in my opinion, even mass
defections should be punished.
16. This is based upon the report of the 170th report of the Law
Commission, which says that provisions that exempt splits and mergers
from disqualification should be deleted.
17. However, the provisions for the split were deleted by the 91st
Amendment to the Constitution of India; due to this, the issues of
corruption and bribery are still taking place.
18. Political Parties now bribe the entire 2/3rd of the elected
representatives so that the government fails in the floor test.
19. The act of 2/3rd members defecting is lawful by virtue of this act, and
this also creates a problem of unstable government if the opposition
plays the trick of horse-trading.
20. In asserting the rights of legislators and parliamentarians, it is
contended that the freedom of speech, guaranteed to every citizen,
becomes a pivotal ground to question the legitimacy of Para 2 of the
Tenth Schedule, which outlines grounds for disqualification.
21. The Supreme Court, in the landmark case of Kihoto Hollohon v.
Zachilhu and others 12, held that the Tenth Schedule does not
undermine the rights of elected members and does not violate Article
105 and Article 195 of the Constitution.
22. The Court underscored the salutary nature of the provisions,
emphasizing their intent to fortify Indian parliamentary democracy by
curbing unprincipled and unethical political defections. The flexibility of
the Constitution is highlighted, acknowledging that the freedom of
speech is not an absolute right, especially when the political party
functions on shared beliefs. The right of a parliamentarian to freedom
of speech, as delineated in Article 105(2), is deemed even superior to the
fundamental right under Article 19(1)(a) of the Constitution of Indigo.

12
Supra Note 8
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 23. Moreover, the argument posits that political defections fueled by power
and money inducements are unequivocally deemed corrupt practices
and hence not immune from consequences.
24. The responsibility to exercise this right responsibly is underscored to
preserve democratic principles and the integrity of the political process.
25. However, a significant drawback is raised concerning the anti-defection
law: while individual defections are penalized, mass defections are not,
creating a potential loophole.
26. The petitioner's counsel would like to draw attention to the Law
Commission's 170th report, recommending the removal of provisions
exempting splits and mergers from disqualification.
27. Despite the subsequent deletion of the provisions for splits by the 91st
Amendment to the Constitution, concerns persist regarding corruption
and bribery.
28. Political parties are alleged to engage in mass defections, bribing a
significant proportion of elected representatives to destabilize the
government during floor tests.
29. This tactic, enabled by the legality of 2/3rd members defecting, raises
the spectre of an unstable government, particularly if opposition parties
exploit the strategy of horse-trading. The argument thus highlights that
there is no need for comprehensive reforms to address these loopholes
and uphold the integrity of the democratic process.

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 PRAYER

Wherefore in the light of the Issues raised, Arguments advanced and

Authorities cited, it is humbly requested that this Hon’ble Court may be
pleased to adjudge and declare that:

1. The changes made by the 52nd amendment constitutionally valid.

2. The provisions of the Act do not violate the fundamental freedoms of speech.
expression and association.

AND,

May pass any such order that it deems fit in the interest of Justice,
Equity and Good
Conscience and for this, Appellant as in duty bound shall forever
humbly pray.

RESPECTFULLY SUBMITTED BY
COUNSELS ON BEHALF OF THE RESPONDENTS.

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