7th Saquib Rizvi Moot Petitioner Memorial

BEFORE THE HONBLE SUPREME COURT OF LINDIYA
(UNDER ART.32 OF THE CONSTITUTION OF INDIA)

W.P.(CIVIL) NO: OF 2015
In the matter of:

1. Peoples Upliftment Organisation
2.
Yashwanth Angre
Petitioners
V.
Union of Lindiya
Respondents
MEMORIAL ON BEHALF OF THE PETITIONERS

On submission
------------------
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ..........3,4

INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED ........5
B. LIST OF STATUTES REFERRED .........5
C. LIST OF JOURNALS REFERRED .............6
D. LIST OF WEBSITES REFERRED ......6
E. LIST OF REPORTS REFERRED ... .......6
LIST OF CASES REFERRED ................... ....7,8,9,10
STATEMENT OF JURISDICTION .........11
STATEMENT OF FACTS ..........12,13
STATEMENT OF ISSUES ......... 14
SUMMARY OF ARGUMENTS .........15
ARGUMENTS ADVANCED .........16
PRAYER ..............47
LIST OF ABBREVATIONS
AIR
- ALL INDIA REPORTER
ART.
- ARTICLE
C.J.
- CHIEF JUSTICE
Cr.P.C
- CODE OF CRIMINAL PROCEDURE
DPSP
- DIRECTIVE PRINCIPLES OF STATE POLICY
FR
- FUNDAMENTAL RIGHTS
HONBLE
- HONOURABLE
ICCPR
- INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS
UDHR
-UNIVERSAL DECLARATION ON HUMAN RIGHTS
I.P.C.
- INDIAN PENAL CODE
ANR
-ANOTHER
ORS.
- OTHERS
S.
- SECTION
SC
- SUPREME COURT
HC
-HIGH COURT
SCALE
- SUPREME COURT ALMANAC
SCC
- SUPREME COURT CASES
ST.
- STATE
V.
-VERSUS
NO.
- NUMBER
PARA
-PARAGRAPH
LPP
-LINDIYAN PEOPLES PARTY
LDP
-LINDIYAN DEVELOPMENT PARTY
RPA 1950
-REPRESENTATION OF PEOPLES ACT 1950
RPA 1951
-REPRESENTATION OF PEOPLES ACT 1951
NGO
-NON- GOVERNMENTAL ORGANISATION
PUO
- PEOPLES UPLIFTMENT ORGANISATION
PUCL
- PEOPLES UNION OF CIVIL LIBERTIES
PIL
- PUBLIC INTEREST LITIGATION
CBI
-CENTRAL BUREAU OF INVESTIGATION
PC
-PREVENTION OF CORRUPTION
CPC
- CODE OF CIVIL PROCEDURE
UP
- UTTAR PRADESH
MP
-MEMBER OF PARLIAMNET
MLA
-MEMBER OF LEGISLATIVE ASSEMBLY
INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED:
D.D.BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS WADHWA
NAGPUR, 14TH EDN. (2009) .
ARVIND. P .DATAR, DATAR ON CONSTITUTION OF INDIA, WADHWA &CO
NAGPUR, EDN (2001).
V.N.SHUKLA, CONSTITUTION OF INDIA, EASTERN BOOK CO, 12TH EDN.
Dr.HARI SINGH GAUR, THE INDIAN PENAL CODE, LAW PUBLISHERS
(INDIA)Pvt ltd, 12thEDN(2005).
R.N.CHOUDHRY, ELECTION LAWS AND PRACTICE IN INDIA,ORIENT
PUBLISHING COMPANY, FOURTH EDITION(2014)
P.M.BAKSHI, THE CONSTITUTION OF INDIA,UNIVERSAK LAW PUBLISHING
CO. TWELTH EDITION(2013)
M.R.MALLICK, WRITS (LAW AND PRACTICE),EASTERN LAW HOUSE,
SECOND EDITION (2009).
OXFORD DICTIONARY,OXFORD UNIVERSITY PRESS,
BHARI, MANUAL OF ELECTION LAWS, BHARI BROTHERS, SIXTH EDITION,
(2013)
B. LIST OF STATUES REFERRED:

1. THE CONSTITUTION OF INDIA
2. THE INDIAN PENAL CODE, 1860
3. THE CODE OF CRIMINAL PROCEDURE, 1973
4. THE CODE OF CIVIL PROCEDURE ,1908
5. THE REPRESENTATION OF PEOPLE ACT 1950
6. THE REPRESENTATION OF PEOPLE ACT 1951
7. ELECTION LAWS
C. LIST OF JOURNALS REFERRED:

1. ALL INDIA REPORTER (AIR)
2. SUPREME COURT CASES (SCC)
3. SUPREME COURT ALMANAC (SCALE)
4. CRIMINAL LAW JOURNAL (Cri. L.J)
5. SUPREME COURT CASES CRIMINAL(SCC(Cri))
6. SUPREME COURT REPORTER(SCR)
D. LIST OF WEBSITES REFERRED:

1. www.manupatra.com
2. www.scconline.com
3. www.indialawsite.com
4. www.indiankanoon.org
5. www.legalserviceindia.com
6. www.lawcornell.com
E. LIST OF REPORTS REFERRED:

1. LAW COMMISSION REPORTS
2. GOSWAMI COMMITTEE ON ELECTORAL REFORMS (1990)
3. VOHRA COMMITTEE REPORT (1993)
4. INDRAJIT GUPTA COMMITTEE ON STATE FUNDING OF ELECTIONS (1998)
5. ELECTION COMISSION OF INDIA PROPOSED ELECTORAL REFORMS (2004)
TABLE OF CASES
INDIAN CASE LAWS:
S.NO
CAUSE TTLE
CITATION
1.
Romesh Thappar V. State of Madras
1950 SCR 594
2.
Shri Prithvi Cotton Mills Ltd and Anr V. The
1969 (2) SCC 283
Broach Borough Municipality and Ors

3.
D.A.V. College V. State of Punjab
1971 (2) SCC 261
4.
Andhra Industrial Works V. Chief controller, E & I
1974 (2) SCC 348
5.
State of Uttar Pradesh V. Raj Narain
1975 (4) SCC 428
6.
Mumbai Kamgar Sabha V. Abdul Bhai
1976 (3) SCC 832
7.
Fertiliser Corporation Kamgar V. Union of India
1981 (1) SCC 568
8.
S.P.Gupta V. Union of India
1981 Supp SCC 87
9.
Bandhua Mukti Morcha V. Union of India &Ors.
1984 (3) SCC 87
10.
Mahendra Kumar Shastri V. Union of India & Anr.
1984 (2) SCC 442
11.
M.C.Mehta & Anr. V. Union of India & Ors.
1987 (1) SCC 395
12.
Janata Dal V. H.S.Chowdhury
1992 (4) SCC 305
13.
State of Haryana V. Karnal Coop. Farmers Society
1993 (2) SCC 363
Ltd.
14.
Secretary, Ministry of Information and
1995 (2) SCC 161
Broadcasting, Govt. of India v. Cricket Association

of Bengal
15.
Dinesh Trivedi, MP and Ors. v. Union of India &
1997 (4) SCC 306
Ors.
S.NO
16.
CAUSE TITLE
Ankul Chandra Pradhan, Advocate Supreme Court v.
CITATION
1997 (6) SCC 1
Union of India
17.
P.V.Narasimha Rao v. State (CBI/SPE)
1998 (4) SCC 626
18.
Patangrao Kadam v. Pritviraj Sayajirao Yadav
2001 (3) SCC 594
Deshmukh &Ors.
19.
B.R.Kapur v. State of Tamil Nadu
2002 (7) SCC 23
20.
Union of India v. Association for Democratic
2002 (5) SCC 294
Reforms
21.
Peoples Union for Civil Liberties (PUCL) v. Union
2003 (4) SCC 399
of India
22.
K.Prabhakaran v. P.Jayarajan
2005 (1) SCC 754
23.
Union of India & Ors. v.Priyanka Sharan & Anr.
2008 (9) SCC 15
24.
A.Abdul Farook v. Municipal Council, Perambalur
2009 (15) SCC 351
& Ors.
25.
Niranjan Hemchandra Sashittal v. St of Maharashtra
2013 (4) SCC 642
26.
Chief Election Comissioner v. Jan Chawkidar & Anr. 2013 (7) SCC 507
27.
Manoj Narula v. UOI
2014 (9) SCC 1
28.
Resurgence India v. Election Commissioner of India
2014 (14) SCC 189
29.
Krishnamoorthy v. Sivakumar
2015 (3) SCC 467
30.
Vineeth Narayan v. UOI
1996 (2) SCC 199
S.NO
CAUSE TITLE
CITATION
31.
Lily Thomas v. UOI
1993 (4) SCC 234
32.
Minerva Mills v. UOI
1980 (2) SCC 591
33.
Sub Committee on Judicial Accountability v. UOI
1980(2) SCC 501
34.
State of Maharashtra and others v. Jalgaon Municipal
2003(9) SCC 731
Corporation,
35.
S.T.Sadiq v. Union of India
2015 (4) SCC 400
36.
In His Holiness Kesavananda Bharati v. Union of
1973 (4) SCC 225
India
37.
I.R.Coelho (dead) v. State of Tamilnadu.
1999 (7) SCC 580
38.
M.Nagaraj & Ors v. Union of India & Ors
2006(8) SCC 212
39.
Centre for PIL & Anr v. Union of India,
2011(4) SCC 1
40.
N.Kannadasan v. Ajay Khose ,
2009 (7) SCC 1
41.
Inderpreet Singh Kahion v. State of Punjab
2006 (11) SCC 356
42.
Arun Kumar Agarwal v. Union of India
2013(7) SCC 1
43.
State of Punjab v. Salil Sablokh & Ors.
2013(5) SCC 1
44.
Delhi Laws Act, 1982 re,
1951 SCR 747
45.
PUCL VS. Union of India ( Nota case)
2013 (10) SCC 1
46.
Indira Gandhi v. Raj Narain
1975 Supp (1) SCC 1
47.
State of Rajasthan v. Union Of India
1977 (3) SCC 592
48.
A.N.Sehgal v. Raje Ram Sheron
1992 Supp (1) SCC 304
49.
Tribhovandas Haribhai Tamboli v. Gujarat Revenue
1991 (3) SCC 442
Tribunal
50.
Kerala State Housing Board v. Ramapriya Hotels (P)
1994 (5) SCC 672
Ltd
S.NO
51.
CAUSE TITLE
Kunhayammed and Ors v State of Kerala & Anr
CITATION
2000(6)SCC 359
HIGH COURT CASES :

1.
Jan Chaukidar (Peolpes Watch) v. UOI & Others.
2004 (2) BLJR 985
2.
Manohar Lal Sharma v. UOI
2014 (1) RCR (Civil) 1019
FOREIGN CASE LAWS:
S.NO
CAUSE TITLE
CITATION
1.
Gideon v. Wain Wright
372 US 335 (1963)
2.
Kable v. Director of Public Prosecutions
(NSW) 1996 HCA 24
10
STATEMENT OF JURISDICTION
This writ petitions filed as pro bono publico at the instance of an NGO along with
the leader of a recognized party under Art. 32 of the Constitution of India, involves a question
of law with regard to the violation of Fundamental Right guaranteed under Art 19(1)(a) of
the Constitution of India. It also raises a question of Constitutional importance regarding Good
Governance as a facet of Democracy and its violation affecting the Basic Structure of the
Constitution. This Court being the Curator of the Fundamental Rights is vested with
jurisdiction to entertain this writ petition under Art 32.
11
STATEMENT OF FACTS
> Lindiya is located in the Lindiyan sub-continent. Albeit the country embraces different
religions, culture and traditions, an overall feeling of being a Lindiyan unites all its inhabitants.
Lindiya obtained independence in 1945 as a result of the people cutting through their differences
to come together as Lindiyans to fight for their independence.
> Almost a month later , Lindiya split into two; the new country formed was named Bakel
consisting mainly of Fargoists. It was rumoured that the split was a result of a conflict within
LDP(Lindiyan Development Party)with regard to their Prime Ministerial candidate. However,
the split was seen as a result of religious differences by the common man.
> On 25th August 1947,a communal riot broke out between Brogmoidist-Fargoist claiming
thousands of lives. The bad blood that existed between these two religious groups was exploited
by politicians to gain political mileage despite the express prohibition of such misconduct by
specific provisions of law.
> In the last 68 years, Lindiya has developed into an ideal model for developing countries. The
LDP has held office for almost 34 years of the 68 years and in the remaining years , the country
has witnessed the LPP(Lindiyan Peoples Party) in power.
> In an interview, Mr. Ranjeet Thadani was accused by Mr. Shekhar Verma, a senior member of
the LPP who claimed that his family was the reason for the Partition, which he denied saying that
it was the act of the followers of Fargoism who he claimed were motivated by their religious
needs even to the extent of it being detrimental to the entire nation.
> This statement infuriated the religious group who started large scale protests. Despite,
Mr.Thadani tendering a public apology for his statements, he was charged with S.153A and
S.295 A of the Lindiyan Penal Code and sentenced to 7 years of imprisonment by the Sessions
Court. Later, the conviction under S.295 of the LPC was overturned by the High Court.
12
> A landmark judgement was delivered on 10th July,2013 by the Supreme Court of Lindiya
whereby a stringent approach was adopted in order to curb criminalisation of politics .
> Spontaneously, the Government passed The Lindiyan Representation of the Citizens
(Amendment and Validation) Act 2013 widening its ambit thereby reversing the judgment of the
Supreme Court.
> An NGO called the Peoples Upliftment Organization that was working towards clean politics
demanded that elections should not be contested by those who have a criminal record.
> During one of his speeches Mr.Angre exclaimed the nation must be governed by those with
clean hands. Mr. Thadani responded to this by stating Part III of our constitution bestows
fundamental rights on the people of this nation which cannot be violated and a test of
Reasonableness must be applied before incarcerating someones freedom.
> The Peoples Upliftment Organization along with Mr.Angre filed a PIL before the Supreme
Court of Lindiya to strike down the amendment.
>The Laws & Constitution of Lindiya are pari materia to those of India.
13
STATEMENT OF ISSUES
1) WHETHER THE PETITIONERS , PEOPLESS UPLIFTMENT

ORGANISATION AND MR.YASHWANTH ANGRE HAVE LOCUS STANDI TO
APPROACH THIS HONBLE COURT UNDER ART.32 OF THE
CONSTITUION.
2) WHETHER THE LEGISLATURE HAS STRUCK DOWN THE LEGAL BASIS

BEHIND THE JUDGMENT BEFORE PASSING THE IMPUGNED
AMENDMENT ACT.
WHETHER THE AMENDMENT ACT IS CONSTITUITONALLY VALID .
3) WHETHER THE IMPUGNED AMENDMENT ACT IS A STUMBLING BLOCK

FOR THE OBJECTIVE OF DECRIMINALISATION OF POLITICS.
14
SUMMARY OF ARGUMENTS
1. The impugned amendment infringes upon the fundamental rights of the citizenry ,
particularly Art 19(1)(a). It also violates certain principles recognized as a vital part of
the Basic Structure of the Constitution.
2.
The amendment act is unconstitutional , since the legislature has transgressed its power
by nullifying a judgment without removing its legal basis . Further , the amendment runs
contrary to the Doctrine of Implied Limitation , Doctrine of Institutional Integrity and
Doctrine of Constitutional Trust.
3. The Amendment proves to be a major stumbling block in the countrys journey to

decriminalize politics and ensure purity of election and probity of governance.
Otherwise, it would make a disastrous impact on the public exchequer and the people , in
general.
15
ARGUEMENTS ADVANCED
1. LOCUS STANDI:
1.1.PIL:
The concept of Public Interest Litigation originated in USA in the case Gideon v. Wain
Wright1. This was adopted by the Indian Judiciary in the case of Mumbai Kamgar Sabha v.
Abdul Bhai2. Even though the word public interest litigation was not expressly used, Honble
Mr.Justice Krishna Iyer held:
Public interest is promoted by a spacious construction of locus standi in our
socio economic circumstances and conceptual latitudinarianism permits taking
liberties with individualisation of the right to invoke the higher courts where the
remedy is shared by a considerable number, particularly when they are
weaker.
In the case of Janata Dal v. H.S.Chowdhury3.it was held:
Therefore, lexically the expression 'PIL' means a legal action initiated in a
Court of Law for the enforcement of public interest or general interest in which
the public or a class of the community have pecuniary interest or some interest
by which their legal rights or liabilities are affected.
.Further, it was held:
In defining the rule of locus standi no 'rigid litmus test' can be applied since
the broad contours of PIL are still developing....The strict rule of locus standi
applicable to private litigation is relaxed and a broad rule is evolved which gives
the right of locus standi to any member of the public acting bona fide.
In Bandhua Mukti Morcha v. Union of India & Ors 4,
Gideon v. Wain Wright 372 US 335 (1963).

Mumbai Kamgar Sabha V. Abdul Bhai (1976) 3 SCC 832.
3
Janata Dal V. H.S.Chowdhury (1992) 4 SCC 305.
4
Bandhua Mukti Morcha v. Union of India & Ors 1984 (3) SCC 87.
2
16
Public interest litigation is not in the nature of adversary litigation but it is a

challenge and an opportunity to the government and its officers to make basic
human rights meaningful .. The Government and its officers must welcome
public interest litigation
In M. C. Mehta & Another v. Union of India & Others5, this Honble Court asserted that it
has all incidental and ancillary powers including the power to forge new remedies and fashion
new strategies designed to enforce the fundamental rights".
In Vineet Narain v. UOI6, the Honble Court while dealing with the writ petitions under Article
32 of the Constitution of India held :
There are ample powers conferred by Article 32 read with Article 142 to make
orders which have the effect of law by virtue of Article 141 and there is mandate
to all authorities to act in aid of the orders of this Court as provided in Article
144 of the Constitution. In a catena of decisions of this Court, this power has
been recognised and exercised.
In Manoj Narula V. UOI7, the SC entertained a petition under Art 32 wherein the petitioners
pro bono publico filed a writ assailing the appointment of some of the Ministers as the Council
of Ministers of Union of India, despite their involvement in serious and heinous crimes.
1.1.1.RES JUDICATA:
QUESTION REGARDING RES JUDICATA:
The impugned amendment was challenged before the Delhi HC in Manohar lal Sharma
v UOI8. The Delhi HC upheld its validity. The matter was taken up by way of Special Leave to
the SC.The SC dismissed the SLP by order dated 5.12.2014 in SLP (c) 8640/2014. By declining
to grant leave, it cannot be said that the SC has passed an order on merits. The dismissal of SLP
would not constitute a decision on merits and therefore is not a binding precedent. Sec 11 of CPC
M. C. Mehta & Another v. Union of India & Others, 1987 (1) SCC 395.
Vineet Narain v. UOI 1996 (2) SCC 199.
7
Manoj Narula V. UOI 2014 (9) SCC 1.
8
Manohar lal Sharma v UOI, 2014 (1) RCR (Civil) 1019.
6
17
and more particularly Explanation IV is not attracted in such cases of dismissal of SLP. This
position has been explained by the SC in the following words in Kunhayammed and Ors v
State of Kerala & Anr9 .
In our opinion, the legal position which emerges is as under :1. While hearing the petition for special leave to appeal, the Court is called upon to see whether
the petitioner should be granted such leave or not. While hearing such petition, the Court is not
exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant
or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to
enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of
his petition for special leave;
2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by
the Court that a case for invoking appellate jurisdiction of the Court was not made out.
Dismissal at stage of special leave - without reasons - no res judicata, no merger
1.2. BREACH OF FUNDAMENTAL RIGHT:
The SC in UOI v. Association for Democratic Reforms10 held that:
Even a declaration of Fundamental Rights on the basis of the judgment
rendered by the court would qualify for a Fundamental Rights included in
chapter III. It is established that fundamental rights themselves have no fixed
content, most of them are empty vessels into which each generation must pour
its content in the light of its experience. The attempt of the Court should be to
expand the reach and ambit of the fundamental rights by process of judicial
interpretation. During the last more than 18 half a decade, it has been so done
by this Court consistently. There cannot be any distinction between the
fundamental rights mentioned in Chapter III of the Constitution and the
9
Kunhayammed and Ors v State of Kerala & Anr9 2000(6)SCC 359.
10
UOI v. Association for Democratic Reforms 2002 (5) SCC 294.

18
declaration of such rights on the basis of the judgments rendered by this

Court.
Art.32 of the Constitution can be invoked even when there is a threat of violation of FR
and the petitioner need not wait till the actual violation takes place. 11 The FR should either be
violated or imminently threatened ; the violation can be actual or potential and this may arise in a
variety of ways and it is not possible to give an exhaustive classification12.
1.2.1.DERIVATIVE FUNDAMENTAL RIGHT:
From time to time, the SC has filled in the skeleton of Part III with soul and blood and made it
vibrant. In the last 50 years, this Court has interpreted Articles 14, 19 and 21 to ensure that the
citizens live in a truly Republican Democratic society .These fundamental principles and societal
structure cannot be undone by such an Ordinance/Amendment.
EXPANDING THE HORIZONS OF ART 19(1)(A):
In Romesh Thappar v. State of Madras 13the SC held :
The public interest in freedom of discussion (of which the freedom of the press is one
aspect) stems from the requirement that members of a democratic society should be
sufficiently informed that they may influence intelligently the decisions which may
affect themselves.
In the case of St of U.P V. Raj Narain14, the SC held :
Freedom of speech and expression includes the right to know every public act,
everything that is done in a public way, by their public functionaries.
In the case of S.P.Gupta V. UOI15, it was held:
11
D.A.V. College v. St of Punjab 1971 (2) SCC 261 .

Andhra Industrial works v. Chief controller, E & I 1974 (2) SCC 348.
13
Romesh Thappar v. St of Madras 1950 SCR 594.
14
St of U.P V. Raj Narain, 1975 (4) SCC 428.
15
S.P.Gupta V. UOI, 1981 Suppl. SCC 87.
12
19
Right to know is implicit in right of free speech and expression. Disclosure of

information regarding functioning of the government must be the rule.
In the case of Dinesh Trivedi, MP and Ors V.UOI & Ors16 the SC held :
Freedom of speech and expression includes right to the citizens to known about the
affairs of the Government.
The SC in UOI V. Association for Democratic reforms17,held :
..For making a right choice, it is essential that the past of the candidate should
not be kept in the dark as it is not in the interest of the democracy and well being
of the country.
Under our Constitution, Article 19(1) (a) provides for freedom of speech and
expression. Voters speech or expression in case of election would include
casting of votes, that is to say, voter speaks out or expresses by casting vote. For
this purpose, information about the candidate to be selected is must. Voter's
(little man-citizen's) right to know antecedents including criminal past of his
candidate contesting election for MP or MLA is much more fundamental and
basic for survival of democracy. The little man may think over before making his
choice of electing law breakers as law makers.
The SC in Association for Democratic Reforms , while adverting to the freedom of
expression and right to information in the context of Art 19(1)(a) of the Constitution of
India , further held that the voters right to speech or expression in the case of election
would include casting of votes , held :
..The voters speech or expression in case of election would include casting of
votes, that is to say, voter speaks out or expresses by casting vote.
The Supreme Court in the case of PUCL V. UOI18
16
17
Dinesh Trivedi, MP and Ors V.UOI & Ors 1997 4 SCC 306.
UOI V. Association for Democratic reforms 2002(5) SCC 294.
20
In case a candidate failed to disclose his criminal back ground by not making
entry in appropriate place or made a false declaration it is the violation of right
to know about the candidate, which is an natural right flowing from the concept
of demo and an integral part of Art 19(1)(a).
In any case, for having free and fair election and not to convert democracy
into a mobocracy and mockery or a farce, information to voters is the
necessity.
"Voting is formal expression of will or opinion by the person entitled to exercise
the right on the subject or issue", as observed by this Court in Lily Thomas Vs.
Speaker, Lok Sabha19
The right to vote at the elections to the House of people or Legislative Assembly
is a constitutional right but not merely a statutory right; freedom of voting as
distinct from right to vote is a facet of the fundamental right enshrined in Article
19(1)(a). The casting of vote in favour of one or the other candidate marks the
accomplishment of freedom of expression of the voter.
The people's representatives fill the role of law-makers and custodians of
Government. People look to them for ventilation and redressal of their
grievances. They are the focal point of the will and authority of the people at
large. The moment they put in papers for contesting the election, they are
subjected to public gaze and public scrutiny. The character, strength and
weakness of the candidate is widely debated. Nothing is therefore more
important for sustenance of democratic polity than the voter making an
intelligent and rational choice of his or her representative. For this, the voter
should be in a position to effectively formulate his/her opinion and to ultimately
express that opinion through ballot by casting the vote. The concomitant of the
right to vote which is the basic postulate of democracy is thus two fold: first,
formulation of opinion about the candidates and second, the expression of
18
19
PUCL V. UOI 2003 (4) SCC 399.

Lily Thomas Vs. Speaker, Lok Sabha 1993 (4)SCC 234.
21
choice by casting the vote in favour of the preferred candidate at the polling
booth.
In Resurgence India V. Election commissioner of India20; the decisions of the SC in
PUCL v. UOI21 sand UOI v. Association for Democratic Reforms22 was reaffirmed.
In Krishnamurthy V. Sivakumar23,the SC,
It is established that fundamental rights themselves have no fixed content, most of
them are empty vessels into which each generation must pour its content in the light of
its experience. The attempt of the Court should be to expand the reach and ambit of the
fundamental rights by process of judicial interpretation.
The present political scenario where money power and muscle power have
substantially polluted and perverted the democratic processes in India. To control the
ill-effects of money power and muscle power the commissions recommend that election
system should be overhauled and drastically changed lest democracy would become a
teasing illusion to common citizens of this country. Not only a half-hearted attempt in
the direction of reform of the election system is to be taken, as has been done by the
present legislation by amending some provisions of the Act here and there, but a much
improved elections system is required to be evolved to make the election process both
transparent and accountable so that influence of tainted money and physical force of
criminals do not make democracy a farce.
By retaining the name of those who are involved in criminal cases and in police custody
in the electoral list, the citizen is denied of his right to vote and elect a candidate of his choice
without criminal antecedents. In case the candidates who are in the fray are all having a criminal
background (though not convicted) yet the voter will either be compelled to vote in favour of one
among them or resort to negative voting.
The possible contention that in the declaration filed under s 33A of RP Act 1951 the candidate
would declare his criminal antecedent is not an answer for the simple reason that in case the
involvement in criminal case is subsequent to the scrutiny and publication of valid nominations,
20
Resurgence India V. Election commissioner of India 2014 (14) SCC 189.

PUCL v. UOI 2003 (4) SCC 399.
22
UOI v. Association for Democratic Reforms 2002 (5) SCC 294.
23
Krishnamurthy V. Sivakumar 2015 (3) SCC 467.
21
22
there would not be any such declaration. The antecedents of such tainted candidates would not be
in the public realm.
In the RP Act there is no provision compelling a person to file an affidavit of his involvement in
an offence after submission of nomination. The provision excluding such persons who are in
police custody from disclosing the criminal background or involvement in the offence
subsequent to filing of nomination would be in violation of S33A of the act and the right
guaranteed under Art19.
A democratic republican polity hopes and aspires to be governed by a Government which is run
by the elected representatives who do not have any involvement in criminal offences or offences
relating to corruption, casteism, societal problems affecting the sovereignty of the nation and
many others. Hence, this particular Amendment is a major impediment for voters to exercise
their right under Article 19(1)(a) as well their quest for probity in governance.
1.3.VIOLATION OF THE BASIC STRUCTURE :
In P.V. Narasimha Rao v. State (CBI/SPE)24 the Supreme Court observed thus
Parliamentary democracy is part of the basic structure of the Constitution. It is
settled law that in interpreting the constitutional provision the Court should
adopt a construction which strengthens the foundational features and basic
structure of the Constitution.
This was first mentioned in the case of Sub-Committee on Judicial Accountability v. Union
of India25 . In Minerva Mills case26 the Supreme Court held that by an amendment, the
Parliament cannot damage the democratic republican character as has been conceived in the
Constitution.
The impugned Amendment Act violates the basic features of the Constitution, namely,
Rule of law
Principles of Democracy and Good Governance
In Romesh Thappar v. State of Madras27,
24
25
26
27
P.V. Narasimha Rao v. State (CBI/SPE) 1998 (4) SCC 626.

Sub-Committee on Judicial Accountability v. Union of India 1991 (4) SCC 699.
Minerva Mills v. UOI 1980 (2) SCC 591.
Romesh Thappar v. State of Madras 1950 scr 594.
23
Freedom of speech and expression should,therefore, receive a generous

support from all those who believe in the participation of people in the
administration...
In S.P. Gupta v. Union of India 28,
The demand for openness in the government is based principally on two
reasons. It is now widely accepted that democracy does not consist merely in
people exercising their franchise once in five years to choose their rulers and,
once the vote is cast, then retiring in passivity and not taking any interest in the
government. Today it is common ground that democracy has a more positive
content and its orchestration has to be continuous and pervasive. This means
inter alia that people should not only cast intelligent and rational votes but
should also exercise sound judgment on the conduct of the government and the
merits of public policies, so that democracy does not remain merely a sporadic
exercise in voting but becomes a continuous process of government an
attitude and habit of mind. But this important role people can fulfil in a
democracy only if it is an open government where there is full access to
information in regard to the functioning of the government.
In the case of Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket
Association of Bengal29
True democracy cannot exist unless all citizens have a right to participate in
the affairs of the polity of the country.
In UOI v. Associationfor Democratic Reforms30 it was held:
Democratic republic is the basic part of the constitution
For this free and fair periodical elections based on adult suffrage are must
For having unpolluted healthy democracy citizen voter must be well
informed.
The obligation of this Court under Article 32 of the Constitution for the
enforcement of these fundamental rights in the absence of legislation must be
viewed along with the role of judiciary envisaged in the Beijing Statement of
28
S .P. Gupta v. Union of India 1981 Supp. SCC 87.

Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal 1995 (2) SCC 161.
30
UOI v. Associationfor Democratic Reforms 2002 (5) SCC 294.
29
24
Principles of the Independence of Judiciary in the LAWASIA region. These

principles were accepted by the Chief Justices of Asia and the Pacific at Beijing
in 1995 (As amended at Manila, 28th August, 1997) as those representing the
minimum standards necessary to be observed in order to maintain the
independence and effective functioning of the judiciary. The objectives of the
judiciary mentioned in the Beijing Statement are:
Objectives of the Judiciary (a) to ensure that all persons are able to live
securely under the rule of law; (b) to promote within the proper limits of the
judicial function the observance and the attainment of human rights; and(c) to
administer the law impartially among persons and between persons and the
State...Thus, an exercise of this kind by the court is now a well-settled
practice which has taken firm roots in our constitutional jurisprudence. This
exercise is essential to fill the void in the absence of suitable legislation to cover
the field.
In Manoj Narula V. UOI31,the Supreme Court held :
A democratic polity, as understood in its quintessential purity, is
conceptually abhorrent to corruption and, especially corruption at high
places, and repulsive to the idea of criminalization of politics as it
corrodes the legitimacy of the collective ethos, frustrates the hopes and
aspirations of the citizens and has the potentiality to obstruct, if not
derail, the rule of law. Democracy, which has been best defined as
the Government of the People, by the People and for the People, expects
prevalence of genuine orderliness, positive propriety, dedicated
discipline and sanguine sanctity by constant affirmance of constitutional
morality which is the pillar stone of good governance.
31

25
1.4 DOCTRINE OF GOOD GOVERNANCE:

In A. Abdul Farook v. Municipal Council, Perambalur and ors32, the SC observed that the
doctrine of good governance requires the Government to rise above their political interest and act
only in public interest and for the welfare of its people.
In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors. 33, the SC, referring
to the object of the provisions relating to corrupt practices, observed as follows:
Clean, efficient and benevolent administration are the essential features of
good governance which in turn depends upon persons of competency and good
character.
In State of Maharashtra and others v. Jalgaon Municipal Corporation and others34,it has
been ruled that one of the principles of good governance in a democratic society is that private &
smaller interest must always give way to larger public interest in case of conflict.
In Manoj Narula V. UOI35
In a democracy, the citizens legitimately expect that the Government of the day
would treat the public interest as primary one and any other interest secondary.
The maxim Salus Populi Suprema Lex, has not only to be kept in view but also
has to be revered. The faith of the people is embedded in the root of the idea of
good governance which means reverence for citizenry rights, respect for
Fundamental Rights and statutory rights in any governmental action, deference
for unwritten constitutional values, veneration for institutional integrity, and
inculcation of accountability to the collective at large. It also conveys that the
decisions are taken by the decision making authority with solemn sincerity and
policies are framed keeping in view the welfare of the people, and including all
in a homogeneous compartment. The concept of good governance is not an
Utopian conception or an abstraction. It has been the demand of the polity
32
A. Abdul Farook v. Municipal Council, Perambalur and others 2009 (15) SCC 351.
Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors. 2001 (3) SCC 594.
34
State of Maharashtra and others v. Jalgaon Municipal Corporation and others 2003 (9) SCC 731.
35
33
26
wherever democracy is nourished. The growth of democracy is dependant upon

good governance in reality and the aspiration of the people basically is that the
administration is carried out by people with responsibility with service
orientation.
Justice N.Santosh Hegde, former Judge of the Supreme Court recently said while
delivering a memorial lecture, that good governance is a fundamental and basic right
contemplated under the Constitution and can be provided by public servants if they realize
their duty to the people and not think of themselves.
The little large Indian shall not be hijacked from the course of free and fair elections by mob
muscle methods, or subtle perversion of discretion by men `dressed in little brief authority. For
`be you ever so high, the law is above you.
The moral may be stated with telling terseness in the words of `William Pitt; Where laws end,
tyranny begins.
2.1. THE AMENDMENT ACT IS UNCONSTITUTIONAL:

2.1.1.THE GENESIS :The impugned amendment was made to the Representation of Peoples Act to nullify the
judgment of the Patna High Court in Jan Chaukidar (Peoples Watch) vs. Union of India and
Ors.36, which was upheld by the Supreme Court in Chief Election Commissioner vs. Jan
Chaukidar (Peoples Watch) and Another37.
The Supreme Court in Jan Chaukidar, held that a person who has no right to vote by
virtue of the provisions of sub section (5) of Section 62 of the Representation of Peoples Act,
1951, is not an elector and is therefore, not qualified to contest the election to the House of
People or the Legislative Assembly of a State.
36
37
Jan Chaukidar (Peoples Watch) vs. Union of India and Ors, 2004(2) BLJR 985.
Chief Election Commissioner vs. Jan Chaukidar (Peoples Watch) and Another, 2013(7) SCC 507.
27
2.1.2. THE STATEMENT OF OBJECTS AND REASONS (OF THE AMENDING ACT):The Statement of Objects and Reasons of the Lindiyan Representation of the Citizens
(Amendment and Validation) Act, 2013, clearly shows that the primary reason for introducing
the amendment was to nullify the judgment of the Supreme Court in Jan Chaukidar.
2.1.3. TRANSGRESSION OF LEGISLATIVE POWERS:
It is trite that a competent Legislature can always validate a law which has been declared
ultra vires or invalid by the Courts, provided that the infirmities and validating factors pointed
out in the declaratory judgment are removed or cured.
It is also a settled principle of law that the Parliament or Legislature can change the basis
on which a decision is given by the Court. The Legislature therefore can render judicial decisions
ineffective, by enacting a valid law on the topic within its legislative field, fundamentally
altering or changing its character retrospectively. The changes or altered conditions should be
such that the previous decision would not have been rendered by the Courts in case those
conditions had existed at the time of declaring the law as invalid.
The Legislative function consists in making law and not in declaring what the law shall be. If
the Legislature were at liberty to annul judgments of Courts, the ghost of bills of attainder will
revisit to enable legislatures to pass legislative judgments on matters which are inter- parties.
The limits of the power of the Legislature to interfere with the directions issued by courts were
considered by several decisions of this Court. In Shri Prithvi Cotton Mills ltd. and Anr v. The
Broach Borough Municipality and ors 38, the Constitution Bench held :
Granted legislative competence, it is not sufficient to declare merely that the
decision of the court shall not bind for that is tantamount to reversing the
decision in exercise of judicial power which the Legislature does not possess or
exercise. A courts decision must always bind unless the conditions on which it
is based are so fundamentally altered that the decision could not have been
given in the altered circumstance.
38
Shri Prithvi Cotton Mills ltd. and Anr v. The Broach Borough Municipality and ors 1969 (2) SCC 283.
28
This
was
also
reiterated
in
Indira
Gandhi
Raj
Narain39.
It is also an equally a settled law that the Court should not shirk its duty from performing its
function merely because it has political thicket. Following observations (of Bhagwati, J) made in
State of Rajasthan v. Union of India [(1977) 3 SCC 592] 40were referred to and relied upon by
the SC Court in B.R.Kapur v. State of Tamil Nadu41
So long as a question arises whether an authority under the Constitution has
acted within the limits of its power or exceeded it, it can certainly be decided by
the court. Indeed it would be its constitutional obligation to do so.
In PUCL V UOI42 , the SC held:
At the outset, we would state that such exercise of power by the Legislature
giving similar directions was undertaken in the past and this Court in
unequivocal words declared that the Legislature in this country has no power to
ask the instrumentalities of the State to disobey or disregard the decisions given
by the Courts.
LEGAL BASIS :(i) In State of Haryana v. Karnal Coop. Farmers Society Ltd., (1993) 2 SCC
363, Section 7 of the Punjab Village Common Lands (Regulation) Haryana Amendment
Act, 1980, was declared unconstitutional by the Supreme Court as it was enacted with the
sole purpose of declaring earlier judicial decisions invalid. The Supreme Court said: Thus, it becomes clear that a legislature while has the legislative power to
render ineffective the earlier judicial decisions, by removing or altering or
neutralising the legal basis in the unamended law on which such decisions were
founded, even retrospectively, it does not have the power to render ineffective
the earlier judicial decisions by making a law which simply declares the earlier
39
Indira Gandhi v Raj Narain. [1975 Supp. SCC 1]
40
State of Rajasthan v. Union of India [(1977) 3 SCC 592]

B.R.Kapur v. State of Tamil Nadu [(2002) 7 SCC 23
41
42
PUCL V UOI 2003 (4) SCC 399.

29
judicial decisions as invalid or not binding for such power if exaercised would
not be a legislative power but a judicial power which cannot be encroached
upon by a legislature under our Constitution.
Most recently in S.T.Sadiq vs. State of Kerala and others43, the Supreme Court
while declaring Kerala Cashew Factories Acquisition (Amendment) Act, 1995,
unconstitutional, as the Legislature attempted to interfere with two judgments of
the Supreme Court, indicated the scope of an Amendment Act made to overcome
Court Judgment in the following words :
It is for this reason that our Constitution permits a legislature to make laws
retrospectively which may alter the law as it stood when a decision was arrived
at. It is in this limited circumstance that a legislature may alter the very basis of
a decision given by a court, and if an appeal or other proceeding be pending,
enable the Court to apply the law retrospectively so made which would then
change the very basis of the earlier decision so that it would no longer hold
good. However, if such is not the case then legislation which trenches upon the
judicial power must necessarily be declared to be unconstitutional.
2.2.THE AMENDMENT ACT IS UNCONSTITUTIONAL:A bare reading of the Statement of Objects and Reasons of the Amendment Act clearly
shows that the Parliament wished to interfere with the judgment of the Supreme Court in Jan
Chaukidar case.
The core issue is as to whether the Parliament by amending the Act and permitting a
person to file nomination, notwithstanding the fact that he is not entitled to vote under Section
62(5) of the Representation of Peoples Act, has removed the basis under which the Supreme
Court decided the case in Jan Chaukidar.
The decision was in relation to the word Elector,
as contained under Sections 2(e), Section 4, 5 and sub Section (5) of Section 62 of the
Representation of Peoples Act, 1951. Section 2(e) defines Elector:43
S.T.Sadiq vs. State of Kerala and others, 2015 (4) SCC 400.
30
(e) "elector" in relation to a constituency means a person whose name is

entered in the electoral roll of that constituency for the time being in force and
who is not subject to any of the disqualifications mentioned in section 16 of the
Representation of the People Act, 1950 (43 of 1950);
S.4 and S.5 of RPA 1951 clearly state that being an elector is an essential qualification
for becoming a member of the House of People and Legislative Assembly respectively.
Section 16 of 1950 Act deals with disqualification for registration in an electoral roll.
Section 62 deals with right to vote. The provision reads thus:62. Right to vote:
(5) No person shall vote at any election if he is confined in a prison, whether
under a sentence of imprisonment or transportation or otherwise, or is in the
lawful custody of the police.
Provided that nothing in this sub-section shall apply to a person subjected to
preventive detention under any law for the time being in force.
The Patna High Court and Supreme Court placed reliance on Sections 4 and 5 of 1951
Act which provides that a person qualified to be chosen to fill a seat in the House of People or
State Legislature must be an Elector entitled to vote.The Patna High Court said in Jan
Chaukidar (peoples watch) v. UOI44
that electors are those who have the legal right to vote, those who have not
had that right taken away by law, while "voters" are those who have this right
and also exercise it by voting in an election..In a general sense, an elector is
one who elects or has the right of choice. Specifically, an elector is one who has
a right to vote for public officers or the adoption of any measure; a person
possessing the qualifications fixed by the Constitution, and duly admitted to the
privileges secured and in the measure prescribed by that instrument. 45
44
Jan Chaukidar (Peoples Watch) v. UOI 2004(2) BLJR 985.
45
Corpus Juris Secundum, Vol. 29, p. 16.

31
The word "elector" is a technical term descriptive of a citizen having

constitutional and statutory qualifications to vote.46
An "elector" is, thus, a person legally entitled to vote. If a person is in prison,
under the Representation of the People Act, 1951, that person is debarred from
voting, unless he or she is specifically under preventive detention. He or she is
not legally entitled to vote at the time. Thus, the prisoner is not an "elector" and
cannot stand for office.
A right to vote is a statutory right, the Law gives it, the Law takes it away.
Persons convicted of crime are kept away from elections to the Legislature,
whether to State Legislature or Parliament, and all other public elections. The
Court has no hesitation in interpreting the Constitution and the Laws framed
under it, read together, that persons in the lawful custody of the police also will
not be voters, in which case, they will neither be electors. The Law temporarily
takes away the power of such persons to go anywhere near the election scene.
To vote is a statutory right. It is a privilege to vote, which privilege may be taken
away. In that case, the elector would not be qualified, even if his name is on the
electoral rolls. The name is not struck off, but the qualification to be an elector
and the privilege to vote when in the lawful custody of the police is taken away.
While upholding the judgment of the Patna High Court, the Supreme Court, in Chief
Election Commissioner vs. Jan Chaukidar47, held:
We do not find any infirmity in the findings of the High Court in the
impugned common order that a person who has no right to vote by virtue of the
provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and
is therefore not qualified to contest the election to the House of the People or
the Legislative Assembly of a State.
46
Words and Phrases, Permanent Edition, Vol. 14, p. 213.
47
Chief Election Commissioner vs. Jan Chaukidar, 2013(7) SCC 507.

32
In Mahendra Kumar Shastri v. Union of India and Anr.48, the Supreme court said:
"The disability which is imposed under Section 62(5) of the Representation of
the People Act is equally applicable to all persons similarly situate mentioned
therein and they are even prevented from contesting the election or offering
themselves as candidates for such election. The provision is reasonable and in
public interest to maintain purity in electing people's representatives."
So, the basis for holding that those in lawful custody will not be entitled to vote, in which
case they will neither be electors, was in relation to the condition in Section 4 and 5 which state
the person contesting should be an Elector. Though by way of the impugned proviso inserted by
the Amending Act, attempt was made to permit all those whose names are found in the Electoral
roll to continue as Electors, meaning thereby making them eligible to contest, the fact remains
that the corresponding provisions viz., Section 2(e), 4(d) and 5(c) have not been amended to
make it in tune with the amendment. The basis therefore remains as it is.
The legal basis in the unamended Act on which the earlier decisions were founded were neither
removed nor altered. There was no corresponding amendment to Section 2(e) or Section 4(d) and
5(c) to the effect that even if a person is not entitled to vote, still he will continue to be an
Elector.
By amending section 62(5) and adding a proviso, the Parliament has not altered the law as it
stood when the decision was made by the Court. In short, the very legal basis of the decision
remain unaltered. It is therefore clear that it was only to annul the judgment of Court, that
impugned amendment was passed with retrospective effect. Since the amendment was resorted
to overreach the decision of a judicial forum, the Amending Act is liable to be declared
unconstitutional.
2.2.1.FUNCTION OF A PROVISO:The normal function of a proviso is to exempt something out of the enactment or to
qualify something enacted therein, which, but for the proviso would be within the purview of
enactment.
48
Mahendra Kumar Shastri v. Union of India and Anr. 1984 (2) SCC 442.
33
Ordinarily, a proviso is not to be interpreted as stating a general rule. The Supreme Court
in Union of India and others vs. Priyanka Sharan and another49, followed the earlier
decisions in A.N.Sehgal vs. Raje Ram Sheron50, Tribhovandas Haribhai Tamboli vs.
Gujarat Revenue Tribunal51 and Kerala State Housing Board vs. Ramapriya Hotels (P)
Ltd.52, held that normally a proviso does not travel beyond the provision to which it is a proviso.
It carves out an exception to the main provision to which it has been enacted as a proviso and to
no other.
The proviso to sub section (5) of Section 62 cannot be invoked to exclude by implication
the term Elector, as contained in Section 4(e) or 5(c) which are embraced by clear words in the
enactment.
The other provisions referred to by the Supreme Court in Jan Chowkidar are independent
and having a clear basis and not in any way affected by the proviso inserted by the Amending
Act.
2.3.DOCTRINE OF IMPLIED LIMITATION:
The doctrine of implied limitation has been accepted as a principle of interpretation of
our organic and living Constitution to meet the requirements of the contemporaneous societal
metamorphosis. The judiciary, as the final arbiter of the Constitution, is under the constitutional
obligation to inject life to the words of the Constitution so that they do not stagnate or become
sterile. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and
another, the applicability of the doctrine of implied limitation has been accepted by the Supreme
Court.
The essence of this Doctrine of Implied Limitation is that the power conferred on any
constitutional authority under any of the Articles of the Constitution may not be circumscribed
by express or obvious prohibition but it cannot be said that in the absence of use of any express
phraseology in that regard, it would confer an unfettered and absolute power or unlimited
discretion on the said constitutional authority.
49
Union of India and others vs. Priyanka Sharan and another, 2008(9) SCC 15.
A.N.Sehgal vs. Raje Ram Sheron (1992 Supp (1) SCC 304.
51
Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal, 1991 (3) SCC 442.
52
Kerala State Housing Board vs. Ramapriya Hotels (P) Ltd., 1994(5) SCC 672.
50
34
In Kesavananda Bharatis case
53
, Sikri, CJ, while expressing his view on the doctrine
of implied limitation, has observed that in a written Constitution, it is rarely that everything is
said expressly. Powers and limitations are implied from necessity or the scheme of Constitution.
In I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu54, Nine-Judge Bench of the
Supreme Court, while dealing with the doctrine of implied limitation,observed:
In the four different opinions six learned Judges came substantially to the
same conclusion. These Judges read an implied limitation on the power of
Parliament to amend the Constitution.
The broad purpose and the general scheme of every provision of the Constitution has to
be interpreted, regard being had to the history, objects and result which it seeks to achieve. This
is made clear in S.P. Gupta v. Union of India and Anr55 and M. Nagaraj and Ors v. Union of
India and Ors56.
The power of Parliament to make a legislation to prescribe qualification and
disqualification of its own members flows from Art. 326, Art .84, Art. 102, Art 173, Art.191.
This power conferred by our Constitution is not an Unfettered right but is subject to certain
implied limitations. As Parliamentary Democracy is a basic feature of the Constitution and the
Council of Ministers exercise all the powers as per the democratic conventions, it has to be
treated as an important constitutional institution of governance of the nation and, therefore, it
cannot be allowed to be held by persons involved in criminal offences. This has been reiterated
by the Supreme Court time and again and more particularly in Centre for PIL and Another v.
Union of India57 and another, N. Kannadasan v. Ajoy Khose and others58, Inderpreet Singh
Kahlon v. State of Punjab59, Arun Kumar Agarwal v. Union of India, Ors60.
53
His holiness Kesavanandha Bharathi v. St of Kerala 1973 (4) SCC 225.

I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu 1999 (7) SCC 580.
55
S.P. Gupta v. Union of India and another 1981 Supp SCC 87.
54
56
M. Nagaraj and others v. Union of India and others 2006 (8) SCC 212.
57
Centre for PIL and Another v. Union of India 2011 (4) SCC 1.
N. Kannadasan v. Ajoy Khose and others, 2009 (7) SCC 1.
59
Inderpreet Singh Kahlon v. State of Punjab 2006 (11) SCC 356.
60
Arun Kumar Agarwal v. Union of India, Ors.
58
35
2.4.DOCTRINE OF INSTITUTIONAL INTEGRITY :

The Doctrine of institutional integrity is an Australian concept that evolved from the case
Kable v Director of Public Prosecutions (NSW)61 in which the principle was developed to
maintain public confidence in the independence of courts.
This doctrine runs along the thread of welfare state to ensure that public confidence in
every institution is preserved. In the last two years the Australian Court has on three occasions
invalidated State legislations on the ground that it compromises the 'institutional integrity' of a
State Court.
The SC in the case of Centre for Public Interest Litigation V. UOI62 explained the
Doctrine of Institutional Integrity in the following words:
Holding it imperative for the members to uphold and preserve the integrity of
the institution, it was laid down that not the desirability of the candidate alone
but the institutional integrity of the office which should be the reigning
consideration in appointments to a public office. The spirit of this judgment,
applicable to all public offices, is that it is not only imperative for the candidate
for such office to have the highest standards of integrity, but independently that
the integrity of the institution must be preserved. Having criminal elements in
politics, no matter whether they are convicted or not, indubitably tarnishes the
latter, if not the former as well.
This doctrine was referred and relied in the celebrated judgment rendered by the
Constitution Bench in Manoj Narula V. Union of India63. The SC said:
The democratic values survive and become successful where the people at
large and the persons-in-charge of the institution are strictly guided by the
constitutional parameters without paving the path of deviancy and reflecting in
action the primary concern to maintain institutional integrity and the requisite
constitutional restraints.
61
Kable v Director of Public Prosecutions (NSW)1996 HCA 24.

Centre for Public Interest Litigation V. UOI 2011 (4) SCC 1.
63
Manoj Narula V. Union of India2014 (9) SCC 1.
62
36
High constitutional offices have to possess institutional integrity so that the

faith of the people at large is not shaken.. It would not be out of place to state
that institutional respectability and adoption of precautions for the sustenance
of constitutional values would include reverence for the constitutional
structure.
The maxim Salus Populi Suprema Lex, has not only to be kept in view but also
has to be revered. The faith of the people is embedded in the root of the idea of
good governance which means reverence for citizenry rights, respect for
Fundamental Rights and statutory rights in any governmental action, deference
for unwritten constitutional values, veneration for institutional integrity, and
inculcation of accountability to the collective at large.
2.5.DOCTRINE OF CONSTITUTIONAL TRUST :
The SC in Delhi laws Act , 1912, in re64, opined that the Doctrine of Constitutional Trust is
applicable to our Constitution since it lays the foundation of representative Democracy.
It was held in Manoj Narula V. UOI65
The doctrine of Constitutional Trust is applicable under our constitution since
it lays the foundation of representative democracy. Thus, in a representative
democracy the Doctrine of Constitutional trust has to be envisaged in every
high Constitutional functionary whether it be the legislature, the Prime Minster
or Chief Ministers.
2.6.UNREASONABLE CLASSIFICATION:
The Amending Act irrespective of the gravity of the charge on the basis of which a
person was put in custody, permits all such accused to contest the election. The Amending Act
now permits even a person subjected to trap by the Anti Corruption Wing of Police while
accepting bribe, whose conviction is almost a foregone conclusion, people who have been
involved in acts of rebellion against the state , persons who have disturbing the peace and
64
65
Delhi laws Act , 1912, re 1951 SCR 747.

Manoj Narula v. UOI 2014 (9) SCC 1.
37
tranquility and is taken into lawful custody after production before Magistrate, in view of the
nature of offence and the manner in which he was arrested, to contest the election by retaining
his position as an Elector.
The Supreme Court has already upheld the validity of Section 62(5) of R.P.Act, debarring
a person in lawful custody from voting in an election66.
Here the Amendment Act adopted a uniform classification of all those who are in lawful
custody. The classification of persons accused of heinous offences like rape, murder, corruption
and other accused of only trivial offences is unreasonable. There is no intelligible differentia in
such classification.
The impugned amendment and Validation Act permitting those who are in lawful custody
to retain their status as Elector irrespective of the nature of offence on the basis of which the
crime was registered and consequently to enable them to contest election would give fillip to
criminalization of politics and would violate the fundamental rights of the citizen to elect people
with good antecedents as their representatives. In case all those who are contesting got such
antecedents, the choice of the electorate would be limited and they would be compelled either to
vote in favour of any such candidate or must go for negative voting, which is not in the interest
of democracy. The impugned Act therefore suffers from the vice of unreasonableness.
2.7. AMENDMENT ACTIS IRRATIONAL AND ARBITRARY :
The legislature under S.62(5) has suspended the voting rights of a person who is confined in
prison with an objective. This objective was elaborated when the constitutional validity of this
provision was challenged in Anukul Chandra Pradhan V. UOI67. It was held that:
..The object is to prevent criminalisation of politics and maintain probity in
elections. Any provision enacted with a view to promote this object must be
welcome and upheld as subsisting the constitutional purpose. The elbow room
available to the legislature in classification depends on the context and the
object for enactment of the provision. The existing conditions in which the law
has to be applied cannot be ignored in adjudging its validity because it is
66
67
Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India and others, 1997(6) SCC 1.
ibid
38
relatable to the object sought to be achieved by the legislation. Criminalisation

of politics is the bane of society and negation a of democracy. It is subversive of
free and fair elections which is a basic feature of the Constitution. Thus, a
provision made in the election law to promote the object of fight and fair
elections and facilitate maintenance of law and order which are the essence of
democracy must, therefore, be so viewed. More elbow room to the legislature for
classification has to be available to achieve the professed object.
The newly inserted proviso to S.62 (5) results in a situation wherein this noble and much needed
objective of having decriminalized politics becomes impossible.
If the right to vote is not allowed to be exercised right to contest also should not be be
guaranteed. The right to vote is normally a prerequisite for exercising the right to contest. The
scheme of the RPA 1951 prior to the amendment kept those who are confined in prison or lawful
custody from exercising the right to vote and thereby the right to contest. The Parliament by
incorporating the proviso permits even those who are not having the right to vote to retain their
name in the electoral roll and in that manner assist them to contest the election.
By introducing this proviso the Parliament virtually overruled Anukul Chandra Pradhan v.
UOI68, Association for Democratic case69, PUCL case70 and Chief Election commissioner v.
Jan Chaukidar71 which were with regard to purity in election and good governance.
The introduction of this proviso is an attempt to permit those who are in criminal cases to contest
the election without any kind of distinction. The citizen is not benefitted by the impugned
proviso in any manner. This amendment was introduced just to get over the judicial decisions
and enable the tainted politicians to contest the election. This provision is therefore highly
arbitrary and irrational.
68
Ankul Chandra Prasdhan v. UOI 1997 (6) SCC 1.

UOI v Association of Democratic Reforms 2002 (5) SCC 294
70
PUL v. UOI 20003 (4) SCC 399.
71
Chief Election commissioner v. Jan Chawkidar 2013 (7) SCC 507.
69
39
3. DECRIMINALIZING POLITICS:
In a respectable and elevated constitutional democracy , purity of election, probity in
governance, sanctity of individual dignity, sacrosanctity of rule of law, certainty and sustenance
of independence of judiciary, efficiency and acceptability of bureaucracy, credibility of
institutions, integrity and respectability of those who run the institutions and prevalence of
mutual deference among all the wings of the State are absolutely significant, and in a way,
imperative.
The crucially recognised ideal which is required to be realised is eradication of criminalisation of
politics and corruption in public life. When criminality enters into the grass-root level as well as
the higher levels there is a feeling that monstrosity is likely to wither away the multitude and
eventually usher in a dreadful fear that would rule supreme creating an incurable chasm in the
spine of the whole citizenry.
In Peoples Union for Civil Liberties and another v. Union of India and another72
For democracy to survive, it is fundamental that the best available men should
be chosen as the peoples representatives for the proper governance of the
country and the same can be best achieved through men of high moral and
ethical values who win the elections on a positive vote.
Criminalisation of politics is an anathema to the sacredness of democracy. Commenting on
criminalization of politics, the SC, in Dinesh Trivedi, M.P. and others v. Union of India and
others73, lamented the faults and imperfections which have impeded the country in reaching the
expectations which heralded its conception. While identifying one of the primary causes, the SC
referred to the report of N.N. Vohra Committee that was submitted on 5.10.1993. The SC noted
that the growth and spread of crime syndicates in Indian society has been pervasive and the
criminal elements have developed an extensive network of contacts at many a sphere. The SC,
further referring to the report, found that the Report reveals several alarming and deeply
disturbing trends that are prevalent in our present society. The Court further noticed that
72
73
Peoples Union for Civil Liberties and another v. Union of India and another 2013 (10) SCC 1.
Dinesh Trivedi, M.P. and others v. Union of India and others 1997 (4) SCC 306.
40
The nexus between politicians, bureaucrats and criminal elements in our

society has been on the rise, the adverse effects of which are increasingly
being felt on various aspects of social life in India. Indeed, the situation has
worsened to such an extent that the President of our country felt constrained
to make references to the phenomenon in his addresses to the Nation on the
eve of the Republic Day in 1996 as well as in 1997 and hence, it required to
be handled with extreme care and circumspection
In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others74
wherein the constitutional validity of S.62(5) was upheld ,it was observed:
They have been made to exclude persons with criminal background of the
kind specified therein from the election scene as candidates and voters with
the object to prevent criminalization of politics and maintain probity in
elections .
In K. Prabhakaran v. P. Jayarajan75, in the context of enacting disqualification under S.
8(3) of the Representation of the People Act, 1951 (for brevity the 1951 Act), it has been
reiterated that
Persons with criminal background pollute the process of election as they
have no reservation from indulging in criminality to gain success at an
election.
3.1.LOOKING BEYOND THE CLICH ARGUMENT OF PRESUMPTION OF
INNOCENCE:
Under S.228 of the Code of Criminal Procedure, 1973 , charge is framed by the court only if
the Judge (the Magistrate under S. 240 Cr.PC) is of the opinion that there is ground for
presumption that the accused has committed an offence, after consideration of opinion given by
the police under S.173(2) Cr.PC (challan/police charge-sheet) and the record of the case and
documents. It may be noted that the prosecutor and the accused person are heard by the court in
74
75
Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others 1997 (6) SCC1.
In K. Prabhakaran v. P. Jayarajan 2005 (1) SCC 754.
41
the process. At that stage , there is a cloud on his innocence and his integrity is questioned. It is
definitely not desirable to entrust the executive power with such a person who is already in
conflict with law , especially in a country that is governed by rule of law. No reasonably prudent
master leave the keys of his chest with a servant whose integrity is doubted. It may not be
altogether irrelevant to note that a person even of doubtful integrity is not appointed in the
important organ of the State which interprets law and administers justice; then why to speak of
questioned integrity! What to say more, a candidate involved in any criminal case and facing
trial, is not appointed in any civil service because of the alleged criminal antecedents, until
acquitted.
This perspective has been elucidated by the SC in the case of Manoj Narula V.UOI76 . The SC
held that:
It is also expected that the persons who are chosen as Ministers do not have
criminal antecedents, especially facing trial in respect of serious or heinous
criminal offences or offences pertaining to corruption. There can be no dispute
over the proposition that unless a person is convicted, he is presumed to be
innocent but the presumption of innocence in criminal jurisprudence is
something altogether different, and not to be considered for being chosen as a
Minister to the Council of Ministers because framing of charge in a criminal
case is totally another thing. Framing of charge in a trial has its own
significance and consequence. Setting the criminal law into motion by lodging
of an FIR or charge sheet being filed by the investigating agency is in the
sphere of investigation. Framing of charge is a judicial act by an experienced
judicial mind..This Court, on number of occasions, as pointed out
hereinbefore, has taken note of the prevalence and continuous growth of
criminalization in politics and the entrenchment of corruption at many a level.
In a democracy, the people never intend to be governed by persons who have
criminal antecedents. This is not merely a hope and aspiration of citizenry but
the idea is also engrained in apposite executive governance.
76
Manoj Narula V. UOI 2014 (9)SCC 1.

42
3.2. IMPACT OF CRIMINALIZED POLITICS ON THE COMMON MAN:

Criminalization of politics can have a three way impact on the society.
Lindiya being a welfare state ensures the protection for every individual under its
territory. Criminalized politics is a threat to the safety of the people in the Country in
many ways. There is a greater chance that the ones who are accused of crimes and are
contesting elections , with the help of their allies might resort to coercive tactics to get
favourable votes from the citizens. Thus , the very situation of allowing such people to
contest election poses an imminent threat to safety , The Supreme Court held as such in
K Prabhakaran v. P Jayarajan77 where it said,
Those who break the law should not make the law. Generally speaking the purpose
sought to be achieved by enacting disqualification on conviction for certain offences is
to prevent persons with criminal background from entering into politics and the house
a powerful wing of governance. Persons with criminal background do pollute the
process of election as they do not have many a holds barred (sic) and have no
reservation from indulging into criminality to win success at an election.
In PUCL V. UOI (2002)78 , it was observed that:
During the last half-a century, there have been thirteen general
elections to Lok Sabha and a much large number to various State
Legislative Assembles. We can take legitimate pride in that these have
been successful and generally acknowledged to be free and fair. But, the
experience has also brought to fore many distortions, some very serious,
generating a deep concern in many quarters. There are constant
reference to the unhealthy role of money power, muscle power and
mafia power and to criminalisation, corruption, communalism and
casteism.
It the case of PUCL V. UOI (NOTA)79, the SC obseved:
77
K Prabhakaran v. P Jayarajan 2005 (1) SCC 754.

PUCL V. UOI 2003 (4) SCC 399
79
PUCL V. UOI (NOTA) 2013 (10) SCC1.
78
43
In the existing system a dissatisfied voter ordinarily does not turn up for
voting which in turn provides a chance to unscrupulous elements to
impersonate the dissatisfied voter
and cast a vote, be it a negative one.
In Krishnamoorthy v Sivakumar80 , the SC while commenting on the present political

scenario of the country and criminalization of politics , enunciated as follows ,
In such a situation the generation of today, in its effervescent ambition
and volcanic fury, smothers the hopes, aspirations and values of tomorrows
generation and contaminate them with the idea to pave the path of the past,
possibly thinking, that is the noble tradition and corruption can be a way of
life and one can get away with it by a well decorated exterior. But, an
intervening and pregnant one, there is a great protector, and an unforgiving
one, on certain occasions and some situations, to interdict The law, the
mightiest sovereign in a civilised society.
3.3. PUBIC EXCHEQUER:81
The Income Tax department collected around Rs.6.96 lakh crore revenue during the financial
year 2014-2015.However, the general elections held in 2014 had a declared expenditure of
almost $5 billion making it the costliest election held so far in India and the second most
expensive election after the 2012 Barack Obamas Presidential elections declaring $7 billion.
Thus, the elections consume almost 12% of the Taxpayers money which have an higher
opportunity cost.
Electoral politics is largely dependent on the money and the funding that it receives.
Several studies by economists estimate that candidates and parties in the 2009 general
elections alone spent roughly $3 billion on campaign expenditures.
Huge election expenses have also resulted into large-scale pervasiveness of so-called
black money.
The Law Commission has earlier also expressed the concern of election expenses being
far greater than legal limits.
80
81
Krishnamoorthy v Sivakumar 2015 (3) SCC 467.

244thLaw Commission Report.
44
Candidates with criminal records often possess greater wealth, the negative effect of the
stigma of criminal charges can be overcome by greater campaigning resources.
Thus, even if a candidate has any criminal record, he may fare well in elections due to
the positive effect of the other markers.
Thus, overall a candidate with a criminal record can prove beneficial to political parties
in several ways. Not only does he ensure greater inflow in money, labour and other
advantages that may help a party in successful campaign, but also possess greater
winnability.
By-elections are misuse and abuse of peoples time and money. For instance, a person
who was under legal custody is permitted to contest in an election and he wins the
election but later if he is found guilty , he is disqualified immediately and again there is a
need to conduct an election which naturally takes a heavy toll on the public exchequer.
In a democracy essentially based on parties being controlled by a high-command, the process
of breaking crime-politics nexus extends much beyond purity of legislators and encompasses
purity of political parties as well.
3.4. REPORTS :
There are recommendations given by different committees constituted by various Governments
for electoral reforms. Some of the reports that have been highlighted are (i) Goswami Committee
on Electoral Reforms (1990), (ii) Vohra Committee Report (1993), (iii) Law Commission Report
on Reforms of the Electoral Laws (1999), (iv) National Commission to Review the Working of
the Constitution (2001), (v) Election Commission of India Proposed Electoral Reforms (2004),
(vi) Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013), and (vii)
Law Commission Report (2014).
The 18th Report was presented to the Rajya Sabha on 15th March, 2007 by the DepartmentRelated Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice
on Electoral Reforms (Disqualification Of Persons From Contesting Elections On Framing Of
Charges Against Them For Certain Offences). The Report acknowledges the criminalization of
our polity and the necessity of cleansing the political climate and had this to say: At the same
time, the Committee is deeply conscious of the criminalization of our polity and the fast
erosion of confidence of the people at large in our political process of the day. This will
certainly weaken our democracy and will render the democratic institutions sterile. The
45
Committee therefore feels that politics should be cleansed of persons with established
criminal background. The objective is to prevent criminalisation of politics and maintain
probity in elections. Criminalization of politics is the bane of society and negation of
democracy.
On the issue of criminalization of politics, the 244th Report of the Law Commission of India on
Electoral Disqualifications was presented in February, 2014. It gives some interesting
statistics: In the current Lok Sabha, 30% or 162 sitting MPs have criminal cases pending
against them, of which about half i.e. 76 have serious criminal cases. Further, the prevalence of
MPs with criminal cases pending has increased over time. In 2004, 24% of Lok Sabha MPs had
criminal cases pending, which increased to 30% in the 2009 elections.
From this data it is clear that about one-third of elected candidates at the Parliament and State
Assembly levels in India have some form of criminal taint. Data elsewhere suggests that onefifth of MLAs have pending cases which have proceeded to the stage of charges being framed
against them by a court at the time of their election. Even more disturbing is the finding that the
percentage of winners with criminal cases pending is higher than the percentage of candidates
without such backgrounds. While only 12% of candidates with a clean record win on average,
23% of candidates with some kind of criminal record win. This means that candidates charged
with a crime actually fare better at elections than clean candidates. Probably as a result,
candidates with criminal cases against them tend to be given tickets a second time. Not only do
political parties select candidates with criminal backgrounds, there is evidence to suggest that
untainted representatives later become involved in criminal activities. The incidence of
criminalisation of politics is thus pervasive making its remediation an urgent need.
46
PRAYER
For the reasons aforesaid, in the light of issues raised, arguments advanced and authorities cited,
it is humbly submitted before this Honble Court that it may be pleased to
Declare the Lindiyan Representation of Citizens (Amendment and Validation) Act 2013
as unconstitutional and ultravires .
And pass such orders proper in the circumstances of the case with costs, which this Court may
deem fit, in the light of equity, justice and good conscience for which the counsel may forever
pray.
47

7th Saquib Rizvi Moot Petitioner Memorial

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BEFORE THE HONBLE SUPREME COURT OF LINDIYA

(UNDER ART.32 OF THE CONSTITUTION OF INDIA)

In the matter of:

MEMORIAL ON BEHALF OF THE PETITIONERS

MEMORIAL ON BEHALF OF THE PETITIONERS

LIST OF ABBREVIATIONS ..........3,4

MEMORIAL ON BEHALF OF THE PETITIONERS

- ALL INDIA REPORTER

- CODE OF CRIMINAL PROCEDURE

- DIRECTIVE PRINCIPLES OF STATE POLICY

- INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS

-UNIVERSAL DECLARATION ON HUMAN RIGHTS

- INDIAN PENAL CODE

- SUPREME COURT ALMANAC

- SUPREME COURT CASES

-LINDIYAN PEOPLES PARTY

-LINDIYAN DEVELOPMENT PARTY

-REPRESENTATION OF PEOPLES ACT 1950

-REPRESENTATION OF PEOPLES ACT 1951

-NON- GOVERNMENTAL ORGANISATION

MEMORIAL ON BEHALF OF THE PETITIONERS

- PEOPLES UPLIFTMENT ORGANISATION

- PEOPLES UNION OF CIVIL LIBERTIES

- PUBLIC INTEREST LITIGATION

-CENTRAL BUREAU OF INVESTIGATION

- CODE OF CIVIL PROCEDURE

-MEMBER OF LEGISLATIVE ASSEMBLY

MEMORIAL ON BEHALF OF THE PETITIONERS

B. LIST OF STATUES REFERRED:

MEMORIAL ON BEHALF OF THE PETITIONERS

C. LIST OF JOURNALS REFERRED:

D. LIST OF WEBSITES REFERRED:

E. LIST OF REPORTS REFERRED:

MEMORIAL ON BEHALF OF THE PETITIONERS

Romesh Thappar V. State of Madras

1950 SCR 594

Shri Prithvi Cotton Mills Ltd and Anr V. The

1969 (2) SCC 283

Broach Borough Municipality and Ors

D.A.V. College V. State of Punjab

1971 (2) SCC 261

Andhra Industrial Works V. Chief controller, E & I

1974 (2) SCC 348

State of Uttar Pradesh V. Raj Narain

1975 (4) SCC 428

Mumbai Kamgar Sabha V. Abdul Bhai

1976 (3) SCC 832

Fertiliser Corporation Kamgar V. Union of India

1981 (1) SCC 568

S.P.Gupta V. Union of India

1981 Supp SCC 87

Bandhua Mukti Morcha V. Union of India &Ors.

1984 (3) SCC 87

Mahendra Kumar Shastri V. Union of India & Anr.

1984 (2) SCC 442

M.C.Mehta & Anr. V. Union of India & Ors.

1987 (1) SCC 395

Janata Dal V. H.S.Chowdhury

1992 (4) SCC 305

State of Haryana V. Karnal Coop. Farmers Society

1993 (2) SCC 363

Secretary, Ministry of Information and

1995 (2) SCC 161

Broadcasting, Govt. of India v. Cricket Association