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BEFORE THE HONBLE SUPREME COURT OF LINDIYA

(UNDER ART.32 OF THE CONSTITUTION OF INDIA)


W.P.NO (CIVIL) :

OF 2015

In the matter of:


1)Peoples Upliftment Organisation &
2)Yashwanth Angre

Petitioners

V.

Union of Lindiya

Respondents

MEMORIAL ON BEHALF OF THE RESPONDENTS


On submission
------------------

MEMORIAL ON BEHALF OF THE RESPONDENTS

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
STATEMENT OF JURISDICTION .........10
STATEMENT OF FACTS ..........11,12
STATEMENT OF ISSUES . ........13
SUMMARY OF ARGUMENTS .........14
ARGUMENTS ADVANCED ..........15
PRAYER ..........39

MEMORIAL ON BEHALF OF THE RESPONDENTS

LIST OF ABBREVATIONS

AIR

- ALL INDIA REPORTER

ART.

- ARTICLE

C.J.

- CHIEF JUSTICE

Cr.P.C

- CODE OF CRIMINAL PROCEDURE

DPSP

- DIRECTIVE PRINCIPLE 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


MEMORIAL ON BEHALF OF THE RESPONDENTS

PIL

- PUBLIC INTEREST LITIGATION

CBI

-CENTRAL BUREAU OF INVESTIGATION

PC

-PREVENTION OF CORRUPTION

CPC

- CODE OF CIVIL PROCEDURE

UP

- UTTAR PRADESH

MP

-MEMBER OF PARLIAMENT

MLA

-MEMBER OF LEGISLATIVE ASSEMBLY

MEMORIAL ON BEHALF OF THE RESPONDENTS

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).
HENRY CAMPBELL BLACK; BLACKS LAW DICTIONARY, WEST PUBLISHING
COMPANY, 5TH EDN.
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 REPRESENTATION OF PEOPLE ACT 1950
5. THE REPRESENTATION OF PEOPLE ACR 1951
6. ELECTION LAWS

MEMORIAL ON BEHALF OF THE RESPONDENTS

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

MEMORIAL ON BEHALF OF THE RESPONDENTS

TABLE OF CASES
INDIAN CASE LAWS:
S.NO

CITATION

CAUSE TITLE

1.

DAV College v. State of Punjab

1971 (2)SCC 261

2.

Hari Prasad Mul Shankar Trivedi v. V.B.Raju

1974 (3)SCC 415

3.

K.Nagaraj &Ors. v. State of Andhra Pradesh &Anr.

1985 (1) SCC 523

Express Newspaper Pvt. Ltd. v. Union of India

1986 (1) SCC 259

5.

Direct Recruit Class II Engg. Officer's Assn v. State of


Maharashtra

1990 (2) SCC 715

6.

Profulla Kumar Sinha v. State of West Bengal

1992 Supp. (2) SCC 122

Mohan Chand v. Union of India

1995 Supp. (3) SCC 425

S.P.Anandh v. H.D.Deve Gowda

1996 (6) SCC 734

9.

Anukul Chandra Pradhan v. Union of India & Ors.

1997 (6) SCC 1

10.

State of Bihar & Ors. v. Bihar Distillery Ltd.

1997 (2) SCC 453

11.

M/s. B.R.Enterprises v. State of Uttar Pradesh &Ors.

1999 (9) SCC 700

12.

Raipur Development Authority v. Anupam Sakhari


Griha Nirman Samiti

2000 (4) SCC 357

4.

7.

8.

MEMORIAL ON BEHALF OF THE RESPONDENTS

S.NO.

CAUSE TITLE

13.

Ranji Thomas v. Union of India

14.

People's Union for Civil Liberties(PUCL) v. Union of

2000 (2) SCC 81

2003 (4) SCC 399

India
15.

CITATION

State of Karnataka & Anr. v. All India Manufacturers


Organisation &Ors.

2006 (4) SCC 683

16.

Government of Andhra Pradesh v. Smt. P.Laxmi Devi

2008 (4) SCC 720

17.

V.K.Naswa v. Union of India and Ors

2012 (2) SCC 542

18.

State of Madhya Pradesh v. Rakesh Kohli

2012 (6) SCC 312

19.

Charanjit Lal Chowdhury v. UOI &Ors

1950 SCR 869

20.

St of Bombay v. F.N.Bulsara

1951 SCR 682

21.

N.P.Ponnuswami v. Returning Officer, Namakkal

1952 SCR 218

Constituency
22.

K.C.Gajapati Narayan Deo v State of Orissa

1954 SCR 1

23.

Jamuna Prasad Mukhariya v. Lachi Ram

1955 (1) SCR 608

24.

Rai Sahib Ram Jawaya Kpur v. State of Punjab

1955 (2) SCR 225

25.

Narendra Singh v. State of Madhya Pradesh

2004 (10) SCC 699

26.

Kailash Gaur & Ors. V. State of Assam

2012 (2) SCC 34

27.

Mahant Moti Das v. S.P.Sahi

1959 Supp (2) SCR 563

28.

Board of Trustees,Ayurvedic Unani Tibia College

1962 Supp (1) SCR 156

v.State of Delhi
29.

Kalipada De v. Dwijapada das

AIR 1930 PC 22

30.

Star Mills v. State of U.P

1983 (4) SCC 299

31.

Gopalan .M.K v.St of Madhya Pradesh

1954 SCR 168

MEMORIAL ON BEHALF OF THE RESPONDENTS

S.NO

CAUSE TITLE

CITATION

32

Manoj Narula v. UOI

2014 (9) SCC 1

33.

Govt of Andhra Pradesh v. Laxmi Devi

2008 (4) SCC 720

34.

Asst.Commr.of Agricultural Income Tax v. M/S Netley

Civil Apeeal No:8617

B Estate & Ors.(yet to be reported)

8635 / 2003

Ranjit Singh Brahmajeet Singh Sharma v. St of

2005 (5) SCC 294

35.

Maharashtra
36.

S.Ganesan v. Rama Ranghuraman

2011 (2) SCC 83

37.

St of UP v. Naresh

1981 (3) SCC 74

38.

Municipal Committee Patiala v. Model Town residents

2007 (8) SCC 669

Association
39.

40.

Manohar Lal Sharma v. UOI

Order Dated:5/12/2014

(yet to be reported )

S.L.P (Civil): 8640 /2014

Mohammed Ahmed Khan v. Shah Bano Begum

1985 (3) SCR 844.

HIGH COURT CASE LAWS:

S.NO

CAUSE TITLE

CITATION

1.

Jan Chaukidar ( peoples watch ) v. UOI & Ors.

2004 (2) BLJR 985

2.

Manohar lal Sharma v. UOI

2014 (1) RCR (civil ) 1019

INCOME TAX TRIBUNAL CASE LAWS:


S.NO

CAUSE TITLE

CITATION

1.

L.P.Cardoza &Ors. v. Agricultural Income Tax Officer

1997 (227) ITR 421

FOREIGN CASE LAWS:

S.NO
1.

CAUSE TITLE
Heydons Case

CITATION
(1584) 79 ER 637

MEMORIAL ON BEHALF OF THE RESPONDENTS

STATEMENT OF JURISDICTION

The petitioners have invoked the jurisdiction of this court under Art.32 of the
Constitution of India to declare a statutory provision as invalid; this writ petition involves only a
simple question with regard to the power of the Parliament to incorporate an Amendment.
The challenge to the provision in Representation of People Act 1951 regarding retention of the
name in electoral roll notwithstanding the imprisonment / legal custody cannot be made with
reference to Fundamental Rights in the Constitution. The challenge to any provision in the
statute prescribing the nature of right to elect cannot be made with reference to the
Fundamental Rights in the Constitution. Therefore, there is no infringement of the any of the
Fundamental Rights of the petitioners guaranteed under Part III of the Constitution and as such
the writ petition under Art 32 is not maintainable.

MEMORIAL ON BEHALF OF THE RESPONDENTS

10

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.
> 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 .

MEMORIAL ON BEHALF OF THE RESPONDENTS

11

> 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 and Constitution of Lindiya are Pari-materia to the laws of India.

MEMORIAL ON BEHALF OF THE RESPONDENTS

12

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 LEGISLATIVE COMPETENCY TO


PASS THE IMPUGNED AMNEDMENT ACT .

3) WHETHER THE AMENDMENT ACT IS CONSTITUITONALLY VALID.

4) WHETHER THIS IMPUGNED AMENDMENT ACT UPHOLDS THE


FUNDAMENTAL PRINCIPLE OF CRIMINAL JURISPRUDENCE.

MEMORIAL ON BEHALF OF THE RESPONDENTS

13

SUMMARY OF ARGUEMENTS

1. The present writ petition is barred by the principle of res judicata. Right to vote and
contest elections , being statutory rights , the petitioners have no locus standi to file a PIL
under Art.32 of the Constitution of India.

2. There is no iota of doubt that the Parliament has the legislative competency to insert the
impugned amendment , having changed the basis of the decision of the SC in Chief
Election Commissioner and Ors. V Jan Chaukidar ( Peoples Watch ) and Ors.

3. The impugned amendment has passed the test of constitutionality. No mala fide can be
attributed to the legislature and the amendment ; there have been cases of amendments
that have overruled judgments in the past.

4. The fundamental principle of criminal jurisprudence that holds a clear distinction


between an accused and a convict has been restored by the legislature through the
amendment.

MEMORIAL ON BEHALF OF THE RESPONDENTS

14

ARGUMENSTS ADVANCED
1.LOCUS STANDI:
1.1.RES JUDICATA:
CONCEPT OF RES JUDICATA
In St of Karnataka and Anr v All India Manufacturers Organisation and Ors 1 , the SC
explained the term of res judicata . The Supreme Court said :
Res Judicata is based on the larger public interest and is founded on two
grounds : one being the maxim nemo debet bis vexari pro una et eadem causa
(no one ought to be twice vexed for one and the same cause) and second, public
policy that there ought to be an end to the same litigation. It is well settled that
S. 11 of the Civil Procedure Code(herein after C.P.C) 1908 is not the
foundation of the principle of Res judicata, but merely statutory recognition
thereof and hence, the section is not to be considered exhaustive of the general
principle of law.2 The main purpose of the doctrine is that once a matter has
been determined in a former proceeding , it should not be open to reagitate the
matter again and again. Section 11 C.P.C recognizes this principle and forbids
a Court from to any suit or issue which is res judicata, recognizing both
cause of action estoppel and issue estoppel.

In the aforesaid judgment it was further held:


As long as the litigation is bonafide a judgment in a previous public interest
litigation would be a judgment in rem. It binds the public at large and bars any
member of the public from coming forward before court and raising any

1
2

St of Karnataka and Anr v All India Manufacturers Organisation and Ors, (2006) 4 SCC 683
Kalipada De V. Dwijapada Das , AIR 1930 PC 22 at p.23.
MEMORIAL ON BEHALF OF THE RESPONDENTS

15

connected issue or an issue, which had been raised should have been raised on
an earlier occasion by way of a public interest litigation.
The Constitution Bench of the SC in Direct Recruit Class II Engg. Officers Assn V.
St of Maharashtra3 ,held:
[A]n adjudication is conclusive and final not only as to the actual matter
determined but as to every other matter which the parties might and ought to
have litigated and have had(sic) decided as incidental to or essentially
connected with(sic)subject- matter of the litigation and every matter coming into
the legitimate purview of the original action both in respect of the matters of
claim and defence.
PRESENT WRIT PETITION IS BARRED BY RES JUDICATA :
The impugned amendment Act was earlier challeneged before the Delhi HC in Manohar Lal
Sharma v UOI4. The petitioner therein challenged the constitutional validity of the amendment
act as being ultra vires the Constitution vitiated by mala fides and against the general public
interest. It was a bonafide litigation initiated in larger public interest. The Delhi HC considered
the contentions raised by the writ petitioner in the light of the constitutional and statutory
provisions governing the field and upheld the validity. The unsuccessful writ petitioner
challenged the judgment dated 6.02.2014 of the Delhi HC before the SC in SLP (C)No.
8640/2014. The SC while dismissing the SLP held that the HC has not committed any error
calling for interference. The order is not one of a simple dismissal of SLP. The order dated
5.12.2014 reads thus :
We have carefully gone through the judgment and order, dated 06.02.2014
passed by the Delhi High Court. We are of the considered opinion that the High
Court has not committed any error which would call for our interference.
Therefore, we decline to entertain this special leave petition. Accordingly, the
special leave petition is dismissed.5

Direct Recruit Class II Engg. Officers Assn V. st of Maharashtra 1990 (2) SCC 715.
Manohar Lal Sharma v UOI 2014 (1) RCR (civil) 1019.
5
Manohar Lal Sharma v. UOI S.L.P.(Civil) 8640 /2014.
4

MEMORIAL ON BEHALF OF THE RESPONDENTS

16

In view of the above binding decision in Manohar lal Sharma case , the present writ
petition challenging the very same Amendment Act is barred by the principle of res
judicata.

1.2. THE SCOPE OF ART.32:


32. Remedies for enforcement of rights conferred by this Part.(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by
clause (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.
In the above article this part refers to Part III of the constitution of India, Fundamental
Right. Art 32 can be invoked only when there is an infringement of FR. This view has
been expressed in numerous cases and more particularly in Star Mills V. St of U.P 6and
Express Newspapers Ltd V. UOI7.

Star Mills V. St of U.P 1983 (4) SCC 299.

Express Newspapers Ltd V. UOI 1986 (1) SCC 259.

MEMORIAL ON BEHALF OF THE RESPONDENTS

17

In DAV College V. St of Punjab8, it was held that the question as to whether there is
legislative competence to enact a particular law will not be decided under Art,32 unless
the FRs of the petitioner are also infringed.
The SC has transferred Public interest petitions filed under Art.32 to the concerned High
Courts to be disposed off as a petition under Art.2269.

1.3.RIGHT TO VOTE

AND CONTEST ELECTIONS IS NOT A FUNDAMENTAL

RIGHT; IT IS MERELY A STATUTORY RIGHT:


It is trite that right to vote' is not a fundamental right or constitutional right, but is only a
statutory right. The Legislature can determine the terms on which the right to vote is enjoyed by
the people of India. S. 62(5) of the RP Act of 1951 explicitly states,
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-S. shall apply to a person subjected to
preventive detention under any law for the time being in force.
The constitutional validity of the said S. was upheld by the Supreme Court in Anukul Chandra
Pradhan V. Union of India and Ors. 10, by holding as under:
It may also be mentioned that the nature of right to vote has been held to
be a statutory right and not a common law right because of which it
depends on the nature of right conferred by the statute.
In N.P. Ponnuswami V. Returning Officer, Namakkal Constituency,11 the Constitution
Bench held
8

DAV College V. St of Punjab 1971 (2) SCC 261.

Proful Kumar Sinha V. State of west Bengal 1992 Supp (2) SCC 122.; Mohan Chand V. UOI , 1995 Supp
(3) SCC 425).
10

Anukul Chandra Pradhan V. Union of India and Ors., (1997) 6 SCC 1.


MEMORIAL ON BEHALF OF THE RESPONDENTS

18

The right to vote or stand as a candidate for election is not a civil right but
is a creature of statute or special law and must be subject to the limitations
imposed by it.

In Jamuna Prasad Mukhariya v. Lachi Ram12, the Constitution Bench reiterated its earlier
decisions by holding that The Fundamental Rights Chapter has no bearing on a right like this
created by statute.

In PUCL V. UOI13, the SC held that :


The right to stand as a candidate and contest an election is a special right
created by the statute and can only be exercised on the In that context, the
Court made an observation that the fundamental right chapter had no
bearing on the right to contest the election which is created by the statute

In was further held by the Delhi HC in the case of Manohar lal Sharma V. UOI14 that :
The right to vote is subject to the limitations imposed by the statute, which can
be exercised only in the manner provided by the statute and that challenge to
any provision in the statute prescribing the nature of right to elect cannot be
made with reference to a fundamental right in the Constitution. The very basis
of challenge to the validity of sub- S. (5) of S. 62 of the RP Act of 1951 was,
therefore, held to be not available.
In the instant case , the proviso to Sec 62 (5) of RP Act , 1951 is under challenge . The
right guaranteed by this proviso is not a part of the FR but is the creation of a statute.

11

N.P. Ponnuswami V. Returning Officer, Namakkal Constituency 1952 SCR 218.


In Jamuna Prasad Mukhariya v. Lachi Ram 1955 (1) SCR 608.
13
PUCL V. UOI 2003 (4) SCC 399.
14
Manohar Lal Sharma v. UOI 2014(1) RCR (civil) 1019.
12

MEMORIAL ON BEHALF OF THE RESPONDENTS

19

Considering this along with the nature of rights sought to be protected under Art.32 , the
petitioners have no locus standi to challenge the particular amendment under the
aforesaid Article.
1.3.1. Re Litigation Impermissioble :
The Supreme Court has already held in Manoj Narula v UOI15 that the court cannot read a
disqualification into the already expressed disqualification provided under the Constitution and
the 1951 Act, since it would tantamount to crossing the boundaries of judicial review.
In S.P.Anandh V. H.D. Deve Gowda16, the SC held that:
It is of utmost importance that those who invoke the SC jurisdiction seeking
a waiver of locus Standi Rule must exercise restraint in moving the court by
not plunging in areas wherein they are not well-versed. Such a litigant must
not succumb to spasmodic sentiments and behave like a knight- errant
roaming at a will in pursuit of issues providing publicity . He must remember
that as a person seeking to espouse a public cause, he owes it to the public as
well as to the court that he does not rush to court without undertaking
research, even if he is qualified or competent to raise the issue.
It is also pointed out So also the court must be careful to ensure that the process of the court is not
sought to be abused by a person who desires to persist with his point of view,
almost carrying it to the point of obstinacy, by filing a series of petitions
refusing to accept the courts earlier decisions as concluding the point
The Delhi HC upheld the constitutional validity of the impugned amendment in Manohar Lal
Sharma v UOI17. This was affirmed by a Bench comprising of the Honble CJ Mr.H.L Dattu
and Honble Mr. Justice A.K.Sikri Yet, the petitioners have chosen to disregard the binding
decisions of the Honble Court . They have come forward espousing their concerns on a matter
which is done and dusted with.
15

Manoj Narula v. UOI 2014 (9) SCC 1.


S.P.Anandh V. H.D. Deve Gowda (1996) 6 SCC 734.
17
Supra.
16

MEMORIAL ON BEHALF OF THE RESPONDENTS

20

2. LEGISLATIVE COMPETENCY:
THE AMENDMENT ACT:
It would be appropriate to reproduce the provisions of the Amendment Act, which reads as
follows:
1. Short title and commencement.
(1) This Act may be called the Representation of the People (Amendment and
Validation) Act, 2013.
(2) It shall be deemed to have come into force on the 10th day of July, 2013.
2. Amendment of S. 7.-- In the Representation of the People Act, 1951 (43 of
1951) (hereinafter referred to as the principal Act), in S. 7, in clause (b), after
the words " or Legislative Council of a State", the words "under the provisions
of this Chapter, and on no other ground" shall be inserted.
3. Amendment of S. 62.-- In S. 62 of the principal Act after the proviso to subS. (5), the following proviso shall be inserted, namely-"Provided further that by reason of the prohibition to vote under this sub-S., a
person whose name has been entered in the electoral roll shall not cease to be
an elector."
4. Validation.-- Notwithstanding anything contained in any judgment, decree
or order of any court, tribunal or other authority, the provisions of the
Representation of the People Act, 1951 (43 of 1951), as amended by this Act,
shall have and shall be deemed always to have effect for all purposes as if the
provisions of this Act had been in force at all material times."

2.1. LEGAL BASIS :


An elector is a person whose name is entered in the electoral roll of that constituency for the time
being in force and is not subject to any of the disqualifications mentioned in S. 16 of the
Representation of the People Act, 1950.

MEMORIAL ON BEHALF OF THE RESPONDENTS

21

As per S. 16(1) of the Representation of the People Act 1950


A person shall be ineligible for registration in an electoral roll as an elector if
he (a) is not a citizen of India; or
(b) is of unsound mind and stands declared so by a competent court; or
(c) is for the time being disqualified from voting under the provisions of any law
relating to corrupt practices and other offences in connection with the elections.

Chapter - III ,Part - II of the RP Act of 1951 deals with -Disqualifications for
Membership of Parliament and State Legislatures. Disqualification is attracted for being chosen
as and for being a member of either House of Parliament or the Legislative Assembly or
Legislative Council of a State, upon conviction of certain offences.

It is settled principle of law that the Legislature can change the basis on which a decision
is given by the Court and, thus, change the law in general, which will affect a class of persons
and events at large. The Legislature 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 changed or altered conditions should be such that the previous decision
would not have been rendered by the Court; if those conditions had existed at the time of
declaring the law as invalid.

The basis for fixing the criterion for an elector is traced from S.16 of the RPA
1950, which expressly talks about who cannot be an elector. The proviso that is inserted in 62(5)
is to confer a very important statutory right to people who are accused of offences, thereby
upholding the principle of presumption of innocence until proved guilty .

MEMORIAL ON BEHALF OF THE RESPONDENTS

22

In Manohar Lal Sharma V. UOI18 the Delhi HC held that :


In fact, by the impugned Amendment and Validation Act, 2013, the
Parliament has by explicit words overruled the intent which had been read by
implication by the Courts intoS. 62(5) and consequently, changed the basis of
"Court's decision" and is, thus, valid.
The constitutional validity of S. 62(5) of the Representation of the People Act, which debarred a
person in lawful custody from voting in an election has already been upheld by the Supreme
court of India in the case of Anukul Chandra Pradhan, Advocate, Supreme Court v. Union
of India & Ors19. The relevant portion of the judgment, reads as follows:
There are other reasons for justifying this classification. It is well known that
for the conduct of free, fair and orderly elections, there is need to deploy
considerable police force. Permitting every person in prison also to vote would
require the deployment of a much larger police force and much greater security
arrangements in the conduct of elections. Apart from the resource crunch, the
other constraints relating to availability of more police force and infrastructure
facilities are additional factors to justify the restrictions imposed by sub-S. 5 of
S. 62.

2.2.PRE-EMINENCE OF THE LEGISLATURE:


In Municipal Committee, Patiala v. Model Town Residents Association

20

held that

legislation is in the domain of the Legislature. It was said:


It is so well settled and needs no restatement at our hands that the legislature
is supreme in its own sphere under the Constitution subject to the limitations
provided for in the Constitution itself. It is for the legislature to decide as to

18

Supra.
Anukul Chandra Pradhan, Advocate, Supreme Court v. Union of India & Ors., (1997) 6 SCC 1.
20
Municipal Committee, Patiala v. Model Town Residents Association 2007 (8) SCC 669.
19

MEMORIAL ON BEHALF OF THE RESPONDENTS

23

when and in what respect and of what subject- matter the laws are to be made.
It is for the legislature to decide as to the nature of operation of the statutes.
More recently, V.K. Naswa v. UOI & Ors.21referred to a large number of decisions of this
Court and held that the Court cannot legislate or direct the Legislature to enact a law. The SC
said:
Thus, it is crystal clear that the court has a very limited role and in exercise of
that, it is not open to have judicial legislation. Neither the court can legislate,
nor has it any competence to issue directions to the legislature to enact the law
in a particular manner.

2.3.THE NOBLE OBJECTIVE BEHIND THE AMENDMENT :


In Manohar Lal Sharma v UOI 22, the Delhi HC , while looking into the legislative
competency of the impugned Amendment observed thus:
It is well settled proposition of law that if the Legislature is competent to pass a
particular law, the motives, which impelled it to act, are really irrelevant. On the
other hand, if the Legislature lacks competency, the question of motive does not
arise. If the Parliament has the requisite competence to enact the impugned Act,
the enquiry into the motive, which persuaded Parliament into passing the
impugned Amendment and Validation Act, 2013, would be of no use at all. In
the present case, the Parliament, in our opinion, is fully competent to enact the
impugned Amendment and Validation Act, 2013 by virtue of the power
conferred under Article 327 read with Entry 72 of the Constitution. The said
provisions of the Constitution are, for the sake of convenience, reproduced
here-in-below:

21
22

V.K. Naswa v. UOI & Ors. 2012 (2) SCC 542.


Supra.
MEMORIAL ON BEHALF OF THE RESPONDENTS

24

Art 327- Subject to the provisions of this Constitution, Parliament may from
time to time by law make provision with respect to all the matters, relating to, or
in connection with, elections to either House of Parliament or to the House or
either House of the Legislature of a State including the preparation of electoral
rolls, the delimitation of constituencies and all other matters necessary for
securing the due constitution of such House or Houses. Union List / List - I:
Elections to Parliament, to the Legislatures of States and to the Offices of
President and Vice-President; the Election Commission.

We may also notice here certain Acts passed under this Entry, which are as
follows:
a) The Representation of the People Act, 1950;
b) The Representation of the People Act, 1951;
c) The Delimitation Act, 1972;
d) The Presidential and Vice-Presidential Elections Act, 1952; and
e) Some portions of other Acts, namely, Government of the Union Territories
Act, 1963, Government of National Capital Territory of Delhi Act, 1991.

It is, thus, evident from the above that the impugned Amendment
and Validation Act, 2013 was passed by the Parliament by virtue of the powers
conferred under the provisions of the Constitution.

It needs no reiteration that mala fides cannot be attributed to the Parliament / Legislature, as has
been held by the Supreme Court in a catena of decisions.
It has been held by the Supreme court in K. Nagaraj and Ors . V. St of Andhra Pradesh and
Anr. 23, that,
23

K. Nagaraj and Ors . V. St of Andhra Pradesh and Anr., 1985 (1) SCC 523.

MEMORIAL ON BEHALF OF THE RESPONDENTS

25

"The Ordinance-making power, being a legislative power, the argument of


mala fides is misconceived. The legislature, as a body, cannot be accused of
having passed a law for an extraneous purpose. Its reasons for passing a law
are those that are stated in the Objects and Reasons and if no reasons are so
stated, as appear from the provisions enacted by it. Even assuming that the
executive, in a given case, has an ulterior motive in moving a legislation, that
motive cannot render the passing of the law mala fide. This kind of 'transferred
malice' is unknown in the field of legislation".

It has been held in K.C. Gajapati Narayan Deo v. State of Orissa 24, and in Board of Trustees,
Ayurvedic and Unani Tibia College v. State of Delhi (now Delhi Admn.)25, that
The doctrine of colourable legislation does not involve any question of bona
fides or mala fides on the part of the legislature. The whole doctrine resolves
itself into the question of the competency of a particular legislature to enact a
particular law. If the legislature is competent to pass a particular law, the
motives which impelled it to act are really irrelevant. On the other hand, if the
legislature lacks competency, the question of motive does not arise at all. We
will, therefore, concentrate on the legislative competence of Parliament to enact
the impugned legislation. If Parliament has the requisite competence to enact
the impugned Act, the enquiry into the motive which persuaded Parliament into
passing the Act would be of no use at all.

During the Rajya Sabha debate on the impugned Amendment and Validation Act, 2013, the
Leader of Opposition stressed that police cannot become the final arbiter as to who can contest
and who cannot. The relevant extracts of the Law Minister's and Leader of Opposition's
statement(s), 26:A) Law Minister's statement while introducing the impugned Bill:
24

25
26

K.C. Gajapati Narayan Deo v. State of Orissa 1954 SCR 1.


Board of Trustees, Ayurvedic and Unani Tibia College v. State of Delhi ( Delhi Admn.), 1962 Supp (1) SCR 156.
http://rajyasabha.nic.in.
MEMORIAL ON BEHALF OF THE RESPONDENTS

26

"... As I have already indicated to you, these are two separate statutory rights.
The right to vote is subject to limitations under S. 62(5) of 1951 Act; the right to
be on the electoral roll is also subject to limitations under S. 16 of the 1950 Act.
Under the 1950 Act, your name can only be removed from the electoral register
if you are convicted of an offence either under S. 123 of the Representation of
the People Act or other offences under the Representation of the People Act,
namely, S.s 8(1), 8(2) and 8(3). If you are not convicted, you are entitled to be
on the electoral roll, and if you are entitled to be on the electoral roll, you can
file your nomination paper notwithstanding the fact that you are in lawful
custody of the police. Because being in the lawful custody of the police does not
mean that you are convicted of an offence, does not mean that you are a
criminal, does not mean that you are subject to any disqualification under S.
16 of the 1950 Act. ... So, even though I may not be entitled to vote under S.
62(5), I do not cease to be an elector, which means, I can still file my
nomination paper. You know very well that there are several instances where
several political parties put up candidates who may be in prison but who are not
convicted and undergoing trial because the rule of law in any progressive
democracy is that you are innocent till you are proved guilty. ... Therefore,
several political parties have actually had candidates who had been in jail but
who had actually filed their nomination paper and have got elected while being
in jail. ..."

B) Leader of Opposition's statement:


Suppose police picks up somebody. And it is not that it is uncommon; it has
happened in the past whereby introducing some action people have been
debarred and disabled from contesting. Therefore, are we going to risk our
democracy becoming dependent of the police? Police is a State subject. If the
police has to pick up some people on the eve of nominations, then they lose their
right to vote; they lose their right to contest.

MEMORIAL ON BEHALF OF THE RESPONDENTS

27

Any candidate who is under arrest at the time of scrutiny of nomination would be ineligible to
vote and would, consequently, be disqualified to contest as he would cease to be an elector. Mere
arrest in a trivial, false, frivolous or vexatious case would become a ground for disqualification,
prior to the impugned Amendment and Validation Act, 2013.

S. 62 of the RP Act of 1951, as interpreted by the Patna High Court and the Supreme Court in
Jan Chaukidar (Peoples Watch) & Ors.'s case27, had serious consequences and wide
ramifications leaving room for serious abuse. Therefore , keeping in view the exigency of the
situation, the Parliament passed the impugned Amendment and Validation Act, 2013, and by
virtue of it, a proviso was inserted .

27

Supra.
MEMORIAL ON BEHALF OF THE RESPONDENTS

28

3. CONSTITUTIONALITY:
3.1.THERE IS ALWAYS A PRESUMPTION IN FAVOUR OF CONSTITUTIONALITY:
There is always a presumption in favour of constitutionality of law made by the
Parliament or a state legislature. The U.S. Supreme Court enunciated the principle that there is
a presumption in favour of the constitutionality of Statute, and the burden is always upon the
person who attacks it to show that there has been a clear transgression of a constitutional
provision. This view was adopted by the Constitution Bench of this Court in Charanjit Lal
Chowdhury v. Union of India and ors 28
In Government of Andhra Pradesh v. P. Laxmi. Devi29, it was observed by the SC that
every effort should be made by the courts to uphold the validity of a statute, as invalidating a
statute is a grave step.
In M/s. B.R. Enterprises v. State of U.P. and others, 30this Court observed :
"Another principle which has to be borne in mind in examining the
constitutionality of a statute is that it must be assumed that the legislature
understands and appreciates the need of the people and the laws it enacts are
directed to problems which are made manifest by experience and that the
elected representatives assembled in a legislature enact laws which they
consider to be reasonable for the purpose for which they are enacted.
Presumption is, therefore, in favour of the constitutionality of an enactment:
vide Charanjit Lal Chowdhury v. Union of India31, State of Bombay v. F.N. Bulsara32,
Mahant Moti Das v. S.P. Sahi.33
In State of Bihar and ors v. Bihar Distillery Ltd., 34a Constitution Bench of this Court
observed :
28

Charanjit Lal Chowdhury v. Union of India and ors 1950 SCR 869.

29

In Government of Andhra Pradesh v. P. Laxmi. Devi 2008 (4 ) SCR 330


M/s. B.R. Enterprises v. State of U.P. and others, 1999 (9) SCC 700.
31
Supra.
32
State of Bombay v. F.N. Bulsara 1951 SCR 682.
33
Mahant Moti Das v. S.P. Sahi 1959 Supp (2) SCR 563.
34
State of Bihar and ors v. Bihar Distillery Ltd., 1997 (2) SCC 453.
30

MEMORIAL ON BEHALF OF THE RESPONDENTS

29

"The approach of the Court, while examining the challenge to the


constitutionality of an enactment, is to start with the presumption of
constitutionality. The Court should try to sustain its validity to the extent
possible. It should strike down the enactment only when it is not possible to
sustain it. The Court should not approach the enactment with a view to pick
holes or to search for defects of drafting, much less in exactitude of language
employed. Indeed, any such defects of drafting should be ironed out as part of
the attempt to sustain the validity/constitutionality of the enactment. After all,
an Act made by the Legislature represents the will of the people and that cannot
be lightly interfered with. The unconstitutionality must be plainly and clearly
established before an enactment is declared as void."
The Supreme Court in State of M.P. v. Rakesh Kohli 35, held that
the Court is not concerned with the wisdom or unwisdom, the justice or
injustice of the law as the Parliament and State Legislatures are supposed to be
alive to the needs of the people whom they represent and they are the best judge
of the community by whose suffrage they come into existence.

3.2.TEST FOR CONSTITUTIONALITY IS SATISFIED:


In order to examine the constitutionality of a statute and/or any of its provisions, one of
the most relevant consideration is the Object and Reasons as well as the legislative history of the
statute. It would help the Court in arriving at a more objective and just approach. It would be
imperative for the Court to examine the reasons for enactment of a particular statute/provision so
as to find out its ultimate impact vis--vis other constitutional provisions.

The legislative competence of the Parliament emanates from Articles 246 and 327 read
with Entry 72 of List - I, Schedule - VII of the Constitution, according to which, the Parliament
is competent to enact laws with respect to the issues mentioned therein. Thus, one of the criteria
for determining the constitutional validity of a law, i.e., the competence of the law- making
35

State of M.P. v. Rakesh Kohli 2012 (6) SCC 312.


MEMORIAL ON BEHALF OF THE RESPONDENTS

30

authority, would depend on the ambit of the legislative power and limitation imposed thereon, as
also on the mode of exercise of such power. In fact, the RP Act of 1951 was also enacted, by the
Parliament by exercising such a power flown from Articles 246 and 327 read with Entry 72 of
the List - I of the Constitution.
The above leaves no room for doubt that the Constitution recognized the need for
changes in law relating to elections from time to time and entrusted the Parliament with the
responsibility as also the requisite power to bring in legislative measures as and when required in
such respect, which would include the power to amend the existing law.
In Hari Prasad Mul Shankar Trivedi v. V.B. Raju36, the Supreme Court held as under:
Article 327 gives full powers to Parliament subject to provisions of the
Constitution to make laws with respect to all matters relating to or in
connection with election including preparation of electoral rolls.

Further, the Parliament has the power, rather an exclusive one, under Article 246 of the
Constitution to make laws with respect to any of the matters enumerated in the Union List of the
Schedule - VII. In exercise of such a power, the Parliament has enacted the impugned
Amendment and Validation Act, 2013 and the same cannot be held to be beyond its legislative
competence.
In the case of Manohar Lal Sharma v. UOI37, the Delhi HC held that :
Petitioner's plea that criminalisation of politics would gain momentum as the
impugned Amendment and Validation Act, 2013 is a case of remedy being
worse than the disease.Extending curtailment of the right to vote of a
person in prison to the right to stand in election would, in our opinion, leave the
door open for practice of 'vendetta politics' by ruling parties. All that a
politician/ ruling party-in-power would need to do to prevent rivals from
contesting an election, is to ask the police to file a case and to arrest the rivals.

36
37

Hari Prasad Mul Shankar Trivedi v. V.B. Raju 1974 (3) SCC 415.
Supra.
MEMORIAL ON BEHALF OF THE RESPONDENTS

31

3.3.INSTANCES OF VALID AMENDMENTS MADE TO OVERCOME JUDGMENTS :

There have been several instances wherin the legislature has overruled judgements ; both
prospectively and retrospectively. In 1985 , the ruling Government passed an Amendment Act ,
Muslim Women ( Protection of Rights on Divorce Act , 1986 ) to dilute the judgement given by
the SC in Mohammed Ahmed Khan v Shah Bano Begum38.

Recently in 2015, the Supreme Court upheld the validity of S.26 (4) of Karnataka
Agricultural Income Tax ( Amendment) Act , 1987 in Assistant Commissioner of Agricultural
Income Tax v M/s Netley B Estate & Ors39. The amendment had nullified a judgment passed
by the Karnataka High Court in L.P Cardoza & Ors. V Agricultural Income Tax Officer &
Ors40.
Thus, introducing a legislation to alter/nullify a judgment is not a novelty.

3.4.INERPRETATION OF STATUTES:
MISCHIEF RULE:
The mischief rule of interpretation originated in the Heydons case41, that has been
recognised by the Common Law Courts including this Honble Court. It is a settled principle of
interpretation used when an amendment is made to an Act, or when a new enactment is made,
The court has the duty to construe statutes by seeking the true intent of the makers of the act,
which is presumed to be pro bono publico.

38

Mohammed Ahmed Khan v Shah Bano Begum 1985 (3) SCR 844
Assistant Commissioner of Agricultural Income Tax v M/s Netley B Estate & Ors Civil Appeal 86178635/2003.
40
L.P Cardoza & Ors. V Agricultural Income Tax Officer & Ors. (1997) 227 ITR 421.
41
Heydons Case(1584) 79 ER 637
39

MEMORIAL ON BEHALF OF THE RESPONDENTS

32

In Raipur Development Authority v. Anupam Sakhari Griha Nirman Samiti42 the SC took
into consideration the Heydons Rule of Interpretation that lays down the principle that the courts
must see:
What was the law before making of the Act?
What was the Mischief or defect for which the law did not provide a remedy?
What is the remedy that the act has provided?
What is the Reason of the remedy?

Law before making the act - The SC of India conformed the judgment of the Patna HC in
Chief Election Commissioner v Jan Chaukidar43 by interpreting the word elector in light
of sec 62 (5) , sec 4 and sec5 of the RP Act.

Mischief /defect for which the law did not provide a remedy The judgment failed to
take note of the fundamental principle of criminal law that declares a clear distinction
between an accused and convict. An important statutory right to contest election and
thereby play a role in the development of the nation was denied , merely on the ground of
being accused of an offence.

Remedy - Including a proviso to sec 62(5) of RP act which allows people whose names
are entered into the electoral roll , the right to contest elections , despite being in lawful
custody.

Reasons for Remedy To discourage any practices of vendetta politics and to confer the
right to contest elections to people under lawful custody , thereby upholding the principle of
criminal jurisprudence.

42
43

Raipur Development Authority v. Anupam Sakhari Griha Nirman Samiti 2000(4) SCC 357.
Supra.
MEMORIAL ON BEHALF OF THE RESPONDENTS

33

4.ACCUSED AND CONVICTS SHOULD NOT BE TREATED IN THE SAME


FOOTING:
4.1 .INDIAN JURISPRUDENCE ON ACCUSED:
In Manoj Narula V. UOI44 it was observed by the SC that :
The law does not hold a person guilty or deem or brand a person as a criminal
only because an allegation is made against that person of having committed a
criminal offence be it in the form of an off-the-cuff allegation or an allegation
in the form of a First Information Report or a complaint or an accusation in a
final report under S. 173 of the Criminal Procedure Code or even on charges
being framed by a competent Court. The reason for this is fundamental to
criminal jurisprudence, the rule of law and is quite simple, although it is often
forgotten or overlooked a person is innocent until proven guilty. This would
apply to a person accused of one or multiple offences. At law, he or she is not a
criminal that person may stand condemned in the public eye, but even that
does not entitle anyone to brand him or her a criminal.
Consequently, merely because a First Information Report is lodged against a
person or a criminal complaint is filed against him or her or even if charges are
framed against that person, there is no bar to that person being elected as a
Member of Parliament or being appointed as a Minister in the Central
Government.
Parliament has, therefore, in its wisdom, made a distinction between an
accused person and a convict. For the purposes of the election law, an accused
person is as much entitled to be elected to the Legislature as a person not
accused of any offence. But, Parliament has taken steps to ensure that at least
some categories of convicted persons are disqualified from being elected to the
Legislature. A statutory disqualification is to be found in S.8 of the
Representation of the People Act, 1951.
44

Supra.
MEMORIAL ON BEHALF OF THE RESPONDENTS

34

It was held further :


Thus, the scheme of disqualification upon conviction laid down by the 1951 Act
clearly upholds the principle that a person who has been convicted for certain
categories of criminal activities is unfit to be a representative of the people. Criminal
activities that result in disqualification are related to various spheres pertaining to the
interest of the nation, common citizenry interest, communal harmony, and prevalence
of good governance. It is clear that the 1951 Act lays down that the commission of
serious criminal offences renders a person ineligible to contest in elections or continue
as a representative of the people. Such a restriction does provide the salutary deterrent
necessary to prevent criminal elements from holding public office thereby preserving
the probity of representative government.

In Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab45, B.K. Mukherjea, CJ,
while referring to the scope of Article 74, observed as under
There is indeed a long distance between the accused may have committed the
offence and must have committed the offence which must be traversed by
the prosecution by adducing reliable and cogent evidence. In this regard,
reliance has been placed on Narendra Singh v. State of M.P46, Ranjitsing
Brahmajeetsing Sharma v. State of Maharashtra 47, S. Ganesan v. Rama
Ranghuraman48,State of U.P. v. Naresh49 and Kailash Gour & ors. v. State of
Assam50.The stage would affect the concept of democratic legitimacy and a
person cannot become ineligible on the basis of perceived seriousness of the
crime without providing a protection despite the person being otherwise eligible,
efficient and capable of being chosen as a representatitive of the people.

45

Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab 1955 (2) SCR 225.
Narendra Singh v. State of M.P. 2004 (10) SCC 699.
47
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra 2005 (5) SCC 294.
48
S. Ganesan v. Rama Ranghuraman 2011 (2) SCC 83.
49
State of U.P. v. Naresh 1981 (3) SCC 74.
50
Kailash Gour & ors. v. State of Assam 2012 (2) SCC 34.
46

MEMORIAL ON BEHALF OF THE RESPONDENTS

35

The impugned amendment , in fact , upholds this fundamental principle of


criminal jurisprudence and the legislature needs to be lauded for looking at the issue
from an all round perspective.
4.2.REPORTS :
The 18th Report presented to the Rajya Sabha on 15th March, 2007 by the Department-Related
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) elucidated that the Courts frame charges even
when they are conscious that the case is ultimately bound to fail. Appreciation of evidence at the
stage of framing charges being more or less prohibited, charges are still framed even when the
court is convinced that the prosecution will never succeed. There are many glaring illustrations
which are of common knowledge and any criminal lawyer can multiply instances of such nature.
Hence the proposal cannot be accepted in its present form as the country has witnessed in the
past misuse of MISA, TADA, POTA etc.
This being the state of affairs, the charges framed against a person can be unwarranted and thus
there is every possibility of denying a person of integrity , the right to contest . Thus the
situation prior to the impugned amendment acted as a hurdle ; it denied people who are capable
of becoming good MPs and MLAs , a reasonable opportunity and further proved to be a
stumbling block in the journey towards Good Governance.
STATISTICS OF UNDERTRIAL PRISONERS :
According to the Prison Statistics of India released in the year 2012, the undertrial prisoners languishing in jail amounts to a mind-boggling number of 2, 54, 857 persons
which is almost 66.2% of the total prison population. Thereby with about 2/3rd of the prisoners
being under-trial prisoners who may prove their innocence upon further investigation and trial,
denial of right to contest in elections to those in police custody would tantamount to deprivation
of the basic rights available to the citizens of the country.

MEMORIAL ON BEHALF OF THE RESPONDENTS

36

ACQUITTAL RATE :
The National Crime Records Bureau has recorded data on the rate of acquittals as
rising from 37.2% in 1972 to 61.5% in 2012. Moreover, the Comptroller and Auditor Generals
2013 Report stated that the rate of acquittals in cases by the Anti-Corruption Bureau is very high
further quoting that out of 867 cases being disposed off only 284 resulted in conviction(i.e)33%
and in almost 583 cases the accused persons were acquitted.

4.3.INTERNATIONAL OPINION :
S. 44(4)(ii) of the Australian Constitution puts a limitation on the member of the House
which travels beyond conviction in a criminal case, for the said provision provides that
any person who has been convicted and is under sentence, or subject to be sentenced,
for any offence punishable under the law of the Commonwealth or of a State by
imprisonment for one year or longer, would be incapable of being chosen or of sitting as
a senator or a member of the House of Representatives.
4.3.1.UNITED NATIONS STANDARD MINIMUM RULES FOR TREATMENT OF
PRISONERS:
In fact, Rule 84(2) of the United Nations Standard Minimum Rules for Treatment of Prisoners
mandates that prisoners who have not been convicted should be presumed as innocent and
treated as such.
84. (1) Persons arrested or imprisoned by reason of a criminal charge against
them, who are detained either in police custody or in prison custody (jail) but
have not yet been tried and sentenced, will be referred to as "untried prisoners"
hereinafter in these rules.
(2) Unconvicted prisoners are presumed to be innocent and shall be treated as
such.
(3) Without prejudice to legal rules for the protection of individual liberty or
prescribing the procedure to be observed in respect of untried prisoners,
MEMORIAL ON BEHALF OF THE RESPONDENTS

37

these prisoners shall benefit by a special regime which is described in the


following rules in its essential requirements only.
4.3.2.INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS :
The jurisprudence is based on innocence of the accused until he is proved guilty which is in tune
with Article 14(2) of the International Covenant on Civil and Political Rights and it cannot be
brushed aside.
Article 14
2. Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.

Therefore, there can be no iota of doubt about the fact that the impugned Amendment
seeks to protect and preserve the pivotal principle of Criminal Justice System.

MEMORIAL ON BEHALF OF THE RESPONDENTS

38

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 constitutional ,
And dismiss the Petition

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.

MEMORIAL ON BEHALF OF THE RESPONDENTS

39