Вы находитесь на странице: 1из 14

TABLE OF CONTENTS

TABLE OF CONTENTS List of Abbreviations…………………………………

List of Abbreviations…………………………………

…………………………………………

……

2

Index of Authorities………………………………………………

…………………

………………

3

Supreme Court Decisions……………………

………………………………

………………………

3

Books and Articles……………………………

………………………………………….……………

4

Statutes…………………………………………………………………………………………………

4

Dictionaries……………………………………………………………………………………………

5

Online references……………………………………………………………………………………….

5

Statement of Jurisdiction…………………………………………………………………………

……

6

Synopsis of Facts………………………………………………………………………

………………

7

Issues Raised……………………………………………………………………………………………

8

Summary of Arguments……………………………………………………………………

…………

9

Prayer…………………………………………………………………………………………

………

14

[1]

LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS A.I.R. All India Reporter Art. Article Ed. Edition Hon’ble Honorable

A.I.R.

All India Reporter

Art.

Article

Ed.

Edition

Hon’ble

Honorable

Ltd.

Limited

Ors.

Others

SC

Supreme Court

SCC

Supreme Court Cases

Sr.

Senior

&

And

U.O.I

Union of India

v./vs.

Versus

S.C.R.

Supreme Court Reporter

u/s

Under Section

w.e.f.

With Effect From

C.M.

Chief Minister

MLA

Member of Legislative Assembly

W.P.

Writ Petition

[2]

INDEX OF AUTHORITIES

INDEX OF AUTHORITIES Supreme Court Decisions- 1. Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC

Supreme Court Decisions-

1. Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412

2. Ravi S Naik v. Union of India AIR 1994 SC 1558

3. G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) 2 SCC 353

4. Ravi S Naik v. Union of India AIR 1994 SC 1558

5. Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007) 4 SCC 270

6. Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P.P. Koya, JD(U), (January 9, 2009)

7. Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008)

8. Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress (Sept 10, 2008)

9. Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008)

10. Durga Shankar Mehta vs raghuraj Singh (1955) I SCR 267

11. Brundaban Naik vs Election Commission of India AIR 1965 SC 1892

12. Indira Nehru Gandhi vs Rai Narain, AIR 1975 SC 2299

13. Dr Kashinath G Jhalmi Vs Speaker, Goa Legislative Assembly (1993) 2 SCC 703

14. Mannadi satyanarayan Reddy vs Andhra Pradesh Legislative Assembly (AP HC) 1994

15. Kihota Hollohon vs. Zachilhu and Others, 1992 Supple (2) SCC 65

16. Mian Bashir Ahmed v. State of J&K,AIR 1982 J&K p.26

17. Jagjit Singh vs State Of Haryana & Ors, AIR 2004, SCC 287

18. B.Muhammedkunhi vs K.Abdulla (Sept 30, 2010) W.P.(C) Nos.28051 & 28056 of 2010-F

19. S. Ramachandran, M.L.A. vs Hon'Ble Speaker Of The Tamil Nadu

on 21 March, 1994

20. Ripusudan Dayal & Ors vs State of M.P. & Ors (Feb 25, 2014) SC W.P. (CIVIL) NO. 613

[3]

21. Rameshwar Prasad & Ors vs Union Of India & Otrs (24 January, 2006) SC WP (civil) 257

22. Narsingrao Gurunath Patil & Ors vs Arun Gujarathi, Speaker And Ors. (29 July, 2002)

23. Dr. Mahachandra Prasad Singh vs Chairman, Bihar Legislative (27/10/2004) SC W.P. (civil)

322 of 2004

24. Gouranga Chatterjee vs The State Of West Bengal & Ors (July 8, 2013)W.P. 4887 (W)

25. Kunwar Pranav Singh Champion & ors vs Speaker Legislative Assembly & ors (9 May,

2016) THE HIGH COURT OF UTTARAKHAND W.P. 826 of 2016 (M/S)

26. D. Sudhakar, Venkataramanappa & ors vs. speaker K.G. Bopaiah Kanataka Legislative

Assembly, High Court of Karnataka (Feb 14’2011)

Books, Articles and Reports –

1. Shukla V N. , Constitution of India – Tenth Edition

2. Jain M.P., Indian Constitutional Law – Fifth Edition – Volumes I and II Basu, Durga Das,

Commentary on the Constitution of India – Eighth Edition

3. Granville Austin: The Indian Constitution: Cornerstone of a Nation (1966) Statement of Objects

and Reasons appended to the Constitution (Fifty-second Amendment) Bill, 1985(Bill No. 22

4. Report of the National Commission to Review the Working of the Constitution (Vol. I, March

2002) p.168

Statutes -

1. The Constitution of India (1950)

2. The Representation of Peoples Act’1951

[4]

Dictionaries-

1. P. Ramanatha Aiyar’s Concise Law Dictionary (4th ed. 2012) New Delhi: Lexis Nexis

Butterworths

2. Wharton’s Law Lexison (15th ed. 2011) New Delhi: Universal Law Publishing Co. Pvt.

Ltd.

3. Webster, New Collegiate Dictionary 742 (Indian edn. 1983) cited from J. K. Mittal, Anti-

defection Act: Comment on its Constitutionality (1987) 3 SCC (Jour) 25`at 289

Online references-

[5]

STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION The petitioners approach the Honorable Supreme Court of India under Article 32 of

The petitioners approach the Honorable Supreme Court of India under Article 32 of the Constitution of India, 1950. The respondents respectfully submit to this jurisdiction invoked by the petitioners.

[6]

SYNOPSIS OF FACTS

SYNOPSIS OF FACTS Shri Ramnath Banerjee is the democratically elected Chief Minister of State of West

Shri Ramnath Banerjee is the democratically elected Chief Minister of State of West Bengal (C.M. here after) as per section 5 of the representation peoples act, 1951. His party has 159 MLAs strength in 294 member State Assembly. The combined opposition strength is 135. One year after assuming office, dissidence was developed in ruling party MLAs as the Chief Minister could not satisfy some of the MLAs who are aspiring for Minister Ships.

Shri Shekhar Mukherjee, one of the rebellious MLA always criticized the Chief Minister and his government. He publicly supported the opposition leader and used to attend opposition party leader's meetings without due permissions from party authorities. Shri Ramnath Banerjee C.M., wrote a letter to Speaker of the House to disqualify Shri Shekhar Mukherjee on the inference drawn from the conduct that he has voluntarily giving up the membership of the political party which he belongs.

Shri Rajendra Patil, another dissident wrote a letter requesting the Governor to call on the leader of the other side to form the government. Shri Ramnath Banerjee also wrote a letter to the speaker to disqualify him.

Shri Manohar Das an independent MLA switched his support to the opposition from the ruling party. After withdrawing the support, other 16 dissident ruling party’s MLAs maintained a camp against the CM, Shri Ramnath Banerjee wrote a letter to Speaker to disqualify them ahead of the trust vote. Meanwhile the Governor asked the CM to prove his majority on the floor of the House. The Governor also directed the Speaker to maintain Status Quo on the house strength before the rebels withdrew the support reducing the Government to a minority.

Aftermath, the Speaker went ahead and disqualified all the dissident 19 MLAs. Thus, the Speaker disqualified the 16 rebel MLAs, along with MLAs Shekhar Mukherjee, Rajendra Patil and Manohar Das under the provisions of the Anti - Defection Law as envisaged in the Tenth Schedule of the Constitution of India. With this action, the Speaker has brought down the strength of 294 to 275. The ruling party strength has been reduced from 159 to 140 and the combined opposition strength is 135 in the House. The Chief Minister won the Floor Test.

[7]

ISSUES RAISED

ISSUES RAISED The following issues are raised by aggrieved disqualified MLAs in present petition: 1. Shri

The

following

issues

are

raised

by

aggrieved

disqualified

MLAs

in

present

petition:

1. Shri Shekhar Mukherjee contended that he has freedom of speech and criticized his party leader

for the benefit of the party. Speaker's decision is autocratic and undemocratic.

2. Shri Rajendra Patil argued that he did not voluntarily give up party membership or resign hence

his disqualification is against the spirit of anti-defection law.

3. Shri Manohar Das contended that as an independent, he has the freedom to extend or withdraw

support to any government and his switching support doesn’t attract any defection.

4. Sixteen disqualified ruling party MLAs argued that they only demanded change of leadership but

not defected. Their disqualification order is the misuse of Anti Defection Law by the Speaker.

[8]

SUMMERY OF ARGUMENTS

SUMMERY OF ARGUMENTS 1. Shri Shekhar Mukherjee contended that he has freedom of speech and criticized

1. Shri Shekhar Mukherjee contended that he has freedom of speech and criticized his party leader for the benefit of the party. Speaker's decision is autocratic and undemocratic.

It is humbly submitted to court that the issue whether the right to freedom of speech and expression 1 is curtailed by Tenth Schedule of constitution 2 was taken up by Supreme Court in Kihota Hollohon Case 3 . The court observed that: “The provisions do not subvert the democratic rights of elected members in Parliaments and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 4 and 194 5 of the constitution.” The first challenge to the anti-defection law (tenth schedule) 2 was made in the Punjab and Haryana high court in Parkash Singh Badal and others v. Union of India and others 6 . One of the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 4 of the Constitution, wherein the court held: “So far as the right of a member under Article 105 4 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the 52nd Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 4 of the Constitution (Para 28).”

In case of Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress 7 , the INC alleged that Shri Bishnoi often dissented from, and criticized the Congress government publicly, and had demanded the dismissal of the government in Haryana. The Speaker held that a person getting elected as a candidate of a political party also gets elected because of the programs of the party. If the person leaves the party, he should go back before the electorate. In case Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP 8 it was alleged that Shri Akhlaque joined the Samajwadi Party in a public meeting. It was alleged that at this 1 meeting, Shri

1.

2.

3.

4.

5.

6.

Art 19 of The Constitution of India

Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment ( in 1985)

Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412

Art 105: Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof

Art 194: Powers, Privileges, etc., of the Houses of Legislatures and of the members and committees thereof

Parkash Singh Badal and others v. Union of India and others

[9]

Akhlaque had said that at heart, he had always been a member of the SP. The Speaker reasoned that there is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held Shri Akhlaque disqualified for having voluntarily given up membership of the BSP.

Here in present case, Petitioner Shri Shekhar Mukherjee misused right of freedom of speech 9 conferred by constitution. Petitioner Shri Shekhar Mukherjee contested election on party manifesto which means he is agreed on party poll promises and conditions but after a year petitioner Shri Shekhar Mukherjee developed erroneous intentions so he criticized government policies at open platform. But these concerns were not raised in party meetings. Along with these acts Petitioner Shri Shekhar Mukherjee also supported opposition party leaders and attended their meetings which were publically known and it was against party discipline. It means Petitioner Shri Shekhar Mukherjee had right of freedom but he has misused it by supporting rivals which were detrimental to ruling party. These acts clearly indicate intentions of voluntarily resignation from ruling party 2 membership. On these grounds Petitioner Shri Shekhar Mukherjee was held for defection and speaker used his right to disqualify conferred by para 2(a) tenth Schedule of constitution 10 . Hence speaker’s decision cannot be said autocratic and undemocratic.

2. Shri Rajendra Patil argued that he did not voluntarily give up party membership or resign hence his disqualification is against the spirit of anti-defection law.

Honorable supreme court, in case of Ravi S Naik v. Union of India 11 stated that, the words “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party. Referring to above words, the honorable supreme court in Rajendra Singh Rana Case and ors vs Swami Prasad Maurya and ors 12 held that the act of giving a letter requesting the governor to call upon the leader of the other side to form a government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. In this case, in 2002 assembly elections in the state of Uttar Pradesh, a coalition government formed since none of the parties

2

7.

8.

9.

10.

11.

12.

Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress (Sept 10, 2008)

Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008)

Art 19 of The Constitution of India

Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment ( in 1985)

Ravi S Naik v. Union of India 11 AIR 1994 SC 1558

Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007) 4 SCC 270

[10]

secured a majority. In the middle of 2003, a unanimous decision was taken by the cabinet to dissolve the assembly. After the cabinet’s decision and before the resignation of the leader of the coalition government, thirteen members from BSP met the governors and requested him to invite the leader of the opposite party to form government. It was in this context court held above.

Five independent members of the Karnataka Legislative Assembly 13 who had declared their support to the BJP government, and were inducted into the Council of Ministers, were disqualified by the Speaker of the Assembly under Paragraph 2(2) of the Tenth Schedule to the constitution 14 , factually following their representation to the Governor that they withdrew their support to the government. Paragraph 2(2) of the Tenth Schedule disqualifies an independent member of a house/assembly who joins any political party after election on the ground of defection: “2(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.”

H 3 ere also conduct of petitioner Shri Rajendra Patil to call governor to request opposition party to form government on low confidence motion against ruling party 15 is considered indiscipline. Calling for floor test against own’s ruling party and helping opposition party are sufficient ground to be considered as defection under para 2(b) and voluntarily give up party membership under para 2(a). On these grounds speaker utilized his power bestowed under para 2(a) of tenth schedule of constitution of india 14 .

3. Shri Manohar Das contended that as an independent, he has the freedom to extend or withdraw support to any government and his switching support doesn’t attract any defection. An independent member is an elected member of the house who does not belong to any political party. Member is elected because of their personal image among the people of the respective constituency. So he must maintain the image shown to electoral and abstains himself from favoring a particular party.

In Jagjit Singh v State of Haryana 16 the legislators were elected as Members of Assembly as independent candidates. Later they joined a political party and news of their joining was reported in print as well as electronic media. That fact was allegedly admitted by members in an interview given to a TV

13 D. Sudhakar, Venkataramanappa & ors vs. speaker K.G. Bopaiah Kanataka Legislative Assembly, High Court of Karnataka (Feb 14’2011)

14 Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment ( in 1985)

15 Art 164

16 Jagjit Singh vs State Of Haryana & Ors, AIR 2004, SCC 287

[11]

news channel. Thereafter those members were disqualified from being members of Assembly by Speaker. It was challenged. The Supreme Court held: “when an independent member is alleged to have joined a political party the test to be applied is whether the member has given up his independent character on which he was elected. This has to be determined on appreciation of material on record and conduct of the member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on facts of each case. The substance and spirit of anti-defection provisions are the guiding factors”. Disqualification of these members by speaker was upheld, despite the allegation of procedural defect in enquiry. Supreme Court also clarified one more question in Jagjit Singh case: “Where a sole member of a political party in an Assembly joins another political party, he cannot get protection of paragraph 3 of Tenth Schedule of the Constitution and will be disqualified from being member under paragraph 2 of the Tenth Schedule of the 4 Constitution.” 17

Similar circumstances are also present hereby. In present case petitioner Shri Manohar Das, favored a particular party while opposing a particular party and lobbying along with other unsatisfying dependent MLAs. So Shri Manohar Das was held to be liable for defection and speaker acting under statute 17 disqualified petitioner cannot be said wrong.

4. Sixteen disqualified ruling party MLAs argued that they only demanded change of leadership but not defected. Their disqualification order is the misuse of Anti Defection Law by the Speaker. Above said disqualified ruling party MLAs were camping against democratically elected CM and they got elected under leadership of CM. So somehow CM candidate and party’s policies and vision had important role in their victory. Now they defied party’s whip (code of conduct) and also want to be in party membership which is not supported by their conduct. Below cases also resulted with similar actions.

In case of Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad 18 , Shri Prasad defied a party whip requiring him to be present in the House. In his defense, he denied that any whip was issued or served. The Speaker held that in view of the fact that there is evidence to show that the whip had been delivered to Shri Prasad’s house, and had been duly received, it cannot be said that Shri Prasad had no knowledge of the whip. To the extent that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution.

17 Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment ( in 1985) 18 Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008).

[12]

Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. 519 In case of Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P.P. Koya 20 , Dr. Koya defied a party whip requiring him to be present in the House and vote against the Motion of Confidence for the government. He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained from voting by remaining absent, and the evidence of the ‘illness’ is not sufficient to conclude that he was so ill that he could not be present in the House. When can it be said that a party member has deliberately defied a party whip.

19 Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412

20 Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P.P. Koya, JD(U), (January 9, 2009)

[13]

PRAYER

PRAYER In the light of the facts stated, arguments advanced and authorities cited the respondent, humbly

In the light of the facts stated, arguments advanced and authorities cited the respondent, humbly prays before the honorable court, to be graciously pleased to:

1. Quash the writ petition filed by the petitioner in the Hon’ble Court of Law since there is no violation of fundamental rights of the member of legislative assembly.

2. Maintain the status quo of the impugned order since there is no violation of the rights as alleged by the

petitioners.

And to pass any other order, which the court may deem fit in light of justice, equity and good conscience. The counsel shall forever beseech this Hon’ble Court for its humble consideration.

ALL OF WHICH IS HUMBLY PRAYED

[14]

Yashpal S COUNSEL FOR THE RESPONDENT

Оценить