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TABLE OF CONTENTS

List of Abbreviations......
Index of Authorities...........
Supreme Court Decisions.......
Books and Articles.........
Statutes...

2
3
3
4
5

Dictionaries........
Online references....

5
5

Statement of Jurisdiction....
Synopsis of Facts
Issues Raised,,,...
Summary of Arguments.........
Prayer.....

6
7
9
10
17

LIST OF ABBREVIATIONS

A.I.R.
Art.
Ed.
Honble
Ltd.
Ors.
SC
SCC

All India Reporter


Article
Edition
Honorable
Limited
Others
Supreme Court
Supreme Court Cases

[1]

Sr.
&
U.O.I
v./vs.
S.C.R.
u/s
w.e.f.
C.M.
MLA
W.P.

Senior
And
Union of India
Versus
Supreme Court Reporter
Under Section
With Effect From
Chief Minister
Member of Legislative Assembly
Writ Petition

INDEX OF AUTHORITIES

Supreme Court Decisions1. 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
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)

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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 142011)

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 of 1985) cited from http://indiacode.nic.in/coiweb/amend/amend52.htm
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 Act1951

Dictionaries1. P. Ramanatha Aiyars Concise Law Dictionary (4th ed. 2012) New Delhi: Lexis Nexis
Butterworths

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2. Whartons 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, Antidefection Act: Comment on its Constitutionality (1987) 3 SCC (Jour) 25`at 289

Online references1. www.westlawindia.com


2. www.manupatra.com
3. www.the-laws.com
4. www.scconline.com
5. www.jcconline.com
6. https://indiankanoon.org/
7. http://www.lexisnexis.in/
8. http://www.legalserviceindia.com/
9. https://www.loc.gov/law/help/constitutional-court-cases/india.php
10. http://legalservicesindia.com/forum/#.V9jeyFt97Z4

STATEMENT OF JURISDICTION

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.

[4]

SYNOPSIS OF FACTS
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.

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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 partys 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.

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ISSUES RAISED

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 doesnt 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.

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SUMMERY OF ARGUMENTS

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. 1
It is humbly submitted to court that the issue whether the right to freedom of speech and
expression1 is curtailed by Tenth Schedule of constitution 2 was taken up by Supreme Court in
Kihota Hollohon Case3. 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

1 Art 19 of The Constitution of India 2. Provisions as to disqualification on ground of defection of The Constitution
of India added in 52nd amendment ( in

1985)

3.

Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412

4.

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

5.

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

6.

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

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conscience. The provisions do not violate any right or freedom under Articles 105 4 and 1945 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 1054 of the Constitution, wherein the court held: So far as the right
of a member under Article 1054 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
this2meeting, Shri Akhlaque had said that at heart, he had always been a member of the SP. The
27. Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress (Sept 10, 2008)8. Shri Rajesh Verma
vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008)
9.

Art 19 of The Constitution of India

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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
speech9 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 3membership. 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 constitution10. Hence speakers 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.

310. Provisions as to disqualification on ground of defection of The Constitution of India added in 52 nd amendment
( in 1985)11. Ravi S Naik v. Union of India11 AIR 1994 SC 1558
12.

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

[10]

Honorable supreme court, in case of Ravi S Naik v. Union of India11 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 ors12 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 secured a majority. In the middle of 2003, a
unanimous decision was taken by the cabinet to dissolve the assembly. After the cabinets
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
constitution14, 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.

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H4ere 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 owns 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 india14.

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 doesnt 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 news channel. Thereafter those members were disqualified from being members of
Assembly by Speaker. It was challenged. The Supreme Court held: when an independent

413 D. Sudhakar, Venkataramanappa & ors vs. speaker K.G. Bopaiah Kanataka Legislative Assembly, High Court of
Karnataka (Feb 142011)14 Provisions as to disqualification on ground of defection of The Constitution of India
added in 52nd amendment ( in 1985)
15

Art 164

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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 ele 5cted. 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 6Constitution.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 statute17 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.

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

617 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).

[13]

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 partys policies
and vision had important role in their victory. Now they defied partys 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 Prasads 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. Judicial review should not cover any stage prior to the making of a decision by the
Speakers/ Chairmen.719
In case of Shri Rajeev Ranjan Singh Lalan vs. Dr. P.P. Koya20, 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.

719 Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 41220 Shri Rajeev Ranjan Singh Lalan vs. Dr. P.P.
Koya, JD(U), (January 9, 2009)

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PRAYER

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 Honble 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.

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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 Honble Court for its humble
consideration.

ALL OF WHICH IS HUMBLY PRAYED


Yashpal S
COUNSEL FOR THE RESPONDENT

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