564B

MOOT COURT SOCIETY FALL INDUCTIONS

MEMORIAL FOR SIDE B

IN THE HON’BLE SUPREME COURT OF DAYABAD

Appeal No. 123/2017

AND

Appeal No. 124/2017

----------In the Matter of----------

Ms. Lestranger & Others ………………………………………………..Appellants I

v.

Mr. Hari Puttar & Others ……………..………………………….………Respondents I

(Appeal No. 123/2017)

----------And in the Matter of----------

The Hon’ble Speaker, Xuhar Assembly ….……………………...……..Appellant II

v.

The Registrar- General, High Court of Xuhar & Others………………..Respondents II

(Appeal No. 124/2017)

Memorial for the Appellant in Appeal 123/2017 and Respondent in Appeal 124/2017
 TABLE OF CONTENT

STATEMENT OF JURIDISCTION…………………………………........ I.

STATEMENT OF FACTS…………………………………………………. II.

QUESTION OF LAW.....…………………………………………………… III.

SUMMARY OF ARGUMENTS……………………………………………. IV.

ARGUMENTS ADVANCED………………………………………………… V.

PRAYER…………………………………………………………………… VI.
 STATEMENT OF JURISDICTION

Petition No. 123/2017 is transferred to the jurisdiction of the Hon’ble Supreme Court of Dayabad
under Article 139A of the Constitution of India on reference of the learned Attorney General of
Dayabad.

In Petition No. 124/2017 transferred to the jurisdiction of the Hon’ble Supreme Court of
Dayabad under Article 139A of the Constitution of India.

 
 STATEMENT OF FACTS

I.

In the 2015 Xuhar elections two regional parties namely the Dayabadi Rashtriya Party
[hereinafter referred to as “DRP”] and the Janta Gantantrikmanch United [hereinafter referred to
as “JGU”], along with the Dayabad Congress [hereinafter referred to as the “Congress”] formed
a pre-poll alliance to present a united opposition to the Dayabadi Jana Sangha [hereinafter
referred to as “DJS”]. The pre-poll alliance was called The Grand Gatbandhan [hereinafter
referred to as “GG”]. The GG campaigned on a socialist-secular agenda and won an
overwhelming majority in the Xuhar assembly.

II.

Mr. Hari Puttar [hereinafter referred to as Respondent 1], the party president of JGU was
nominated as the Chief Minister of Xuhar. Ms. Geanie Beesli, a prominent member of JGU was
nominated to act as the speaker [hereinafter referred to as Appellant 2]. It is pertinent to state that
Mr. Xeno Phobius, previously a key member of the DJS was the governor of Xuhar at the time.

III.

The government of Xuhar enacted a significant constitutional amendment. It inserted the 102nd
amendment into paragraph 1 of the X Schedule of the Constitution, a sub-clause (e), which
defined the term ‘Political party’.

IV.

Respondent 1 resigned his post as Chief Minister of Xuhar on 2 June 2017. Curiously on
Curiously, on 3 June 2017, Respondent 1 staked claim before the governor of Xuhar, Mr. Xeno
Phobius who had earlier been a key member of DJS to form government in Xuhar, showing
support of all JGU members, all DJS members and 34 independent members of the legislative
assembly which was accepted.

V.

The Congress and the DRP filed a petition before the speaker, Ms. Geanie Beesli seeking to
disqualify all JGU member on grounds of defection. The Speaker only after a short hearing,
dismissed the petition. Subsequently members of the DRP and Congress then filed a petition
before the High Court of Xuhar seeking to disqualify all member of JGU of the Xuhar assembly
and additionally challenging the Xuhar Governors decision to invite the Respondent 1 to form
the Xuhar government [Petition 101/2017].

VI.

On the first day of the hearings the Xuhar High Court called upon the Speaker directing her to
file a detailed affidavit explaining her reasons for dismissing the petition for defection and to be
present at the next hearing. Ms. Beesli, upon receipt of the order issued by the High Court, issued
in turn, a notice to the Registrar General of the High Court, calling upon the Chief Justice to
present herself before the Xuhar Assembly to explain why proceedings for breach of privilege of
the House should not be commenced against her
 ISSUES ADVANCED

I. Whether the members of JGU are liable to be disqualified on the grounds of Defection as
under Schedule X of the Constitution of Dayabad?  
 
II. Whether the governor’s decision to call JGU to form a government was biased and in
clear breach of the duties enshrined upon him by the constitution, given that JGU was not
the single largest party in the Xuhar assembly?  
 
III.   Whether the Chief Justice of the Hon’ble High Court of Xuhar can review the
proceeding of the Assembly of Xuhar, under the chairmanship of the Speaker
against defection of the JGU members?  
 
IV. Whether the Speaker can issue Notice to the Registrar General for breach of privilege?  
 SUMMARY OF ARGUMENTS

ISSUE I
The members of JGU are liable to be disqualified on the grounds of Defection as under
Schedule X of the Constitution of Dayabad.
 
a Members of JGU did not form a merger as defined under Schedule X of the Constitution but a
political party. There is always a strong presumption in favour of the constitutionality of
an Act unless proven otherwise hence the members of JGU cannot challenge the validity
of Amendment 102 of the Constituion.  
b It cannot be proved that the said Act violates the Basic Structure Doctrine of the Indian
Constitution as its goal is enshrined in Article 38 of the Indian Constitution. Various Law
Commission and Eminent Committee Reports on Electoral Reforms have time and again
repeated the legislative intent of this Amendment.  
c This Amendment need not have a retrospective application to hold the members of JGU liable
for defection as the deemed to provision makes it applicable to every existing pre-poll
alliance. The amendment merely explains the previous provisions of X Schedule hence
are applicable retrospectively.  
d There is nothing in the language of the Tenth Schedule to suggest that the Parliament intended
to exclude the operation of para 2(1)(a) in respect of coalition Government so this
Amendment is applicable to the members of JGU have defected and must be disqualified.  
 
ISSUE II
The governor’s decision to call JGU to form a government was biased and in clear breach of the
duties enshrined upon him by the constitution,  
 
a Despite the fact that JGU was not the single largest party in the Xuhar assembly it was called
upon by the governor to form the government, which shows a clear bias towards the
members of his old party.  
b The JGU party wasn’t asked by the governor to conduct a floor test to show if they had the
required numbers and went against democratic conventions.  
c Governor was unethical and improper and acted in clear breach of the duties and
responsibilities given to him by the constitution in allowing the political coup to take
place.  
 
ISSUE III
The Chief Justice of the Hon’ble High Court of Xuhar can review the proceeding of the
Assembly of Xuhar, under the chairmanship of the Speaker against defection of the JGU
members.  
 
a Under Schedule X, the function exercised by the speaker is judicial in nature it must be subject
 to judicial review.  
b Judicial review of the Speaker’s decision under paragraph 6(1) of Tenth Schedule could be
exercised on grounds like gross violation of natural justice, perversity, bias and such like
defects and will not be protected under Article 122 and 212 of the Constitution.  
c The speaker engaged in hasty decision making and ignored the seriousness of the matter at
hand.  
 
ISSUE IV
The inquiry into the biased and careless decision of the Speaker in ignoring the defection of his
old party members by the Chief Justice of the Hon’ble High Court of Xuhar does not amounts to
breach of privilege.  
 
a Ms. Beesli, only after a short hearing on the matter refused to disqualify JGU members
blatantly ignoring the obvious defection claims, a decision which reeks of perversity and
natural justice.  
b In the case at hand the Speaker, Geanie Beesli did not take the existing law of the land and the
blatant defection by the members of JGU and hence this action is subject to judicial
review and does not violate the privilege granted under Article 105 of the Constitution of
India.  
 
 ARGUMENTS ADVANCED

I. Whether the members of JGU can be held liable for defection?

1. India is a democracy working on the first past the poll system and in pre-poll alliances
constituents are divided between various parties of the alliance. The people vote for the
alliance and not political parties in isolation. A political party functions on the strength of
shared beliefs. Any freedom of its Members to vote as they please independently of the
political party's declared policies will not only embarrass its public image and popularity
but also undermine public confidence in it which, in the ultimate analysis, is its source of
sustenance, indeed, its very survival. The Tenth Schedule gives effect to this principle and
sentiment by imposing a disqualification on a Member who votes or abstains from voting
contrary to "any directions" issued by the political party.1 The members of JGU are not
exempted from defection under Schedule 10 since Section 4 of the Schedule has been
repealed and members of JGU do not form 2/3rd of the Grand Mahagathbandhan for their
split in order to be considered as a merger and not defection.

a) Constitutionality of Constitution (One Hundred Second Amendment) Act, 2017

and Legislative Intent

2. Amendment Act 2017 does not violate the Basic Structure Doctrine of the constitution
of India. In the case of Ram Krishna Dalmia vs. Shri Justice S.R Tendolkar and Ors.2 it
was held that the legislature best understands the needs of its people and hence there is a
strong presumption in favour of the constitutionality of an enactment. It is a presumption,
which the Supreme Court itself has stated, ‘only the clearest and weightiest evidence can
displace’.3 In order to determine what is basic structure the historical background, the
preamble, the entire scheme of the constitution and the relevant provisions thereof
including article 368 are kept in mind. The federal and democratic structure of the
constitution, the separation of powers, the secular character of our state are very much
more definite than either negligence or natural justice.4 The evil of political defections has
been a matter of national concern. If it is not combated, it is likely to undermine
the very foundations of our democracy and the principles, which sustain it. With
this object, an assurance was given in the Address by the President to Parliament that the
Government intended to introduce in the current session of Parliament an anti-defection
Bill.5
3. The 91st Amendment to the constitution restricts the size of council of ministers in both
                                                                                                                       
1
Griffith and Ryle on "Parliament, Functions, Practice & Procedure" 1989 Edn. page 119
2
Ram Krishna Dalmia vs. Shri Justice S.R Tendolkar and Ors. 1959 SCR 279
3
R.K. Garg v. Union of India, (1981) 4 SCC 675: AIR 1981 SC 2138.
4
H.M, Seervai: Constitutional law of India VOI.II, P. 1568 (2ND ED.)
5
Statement of Objects and Reasons appended to the Constitution
(Fifty-second Amendment) Bill, 1985 (Bill No. 22 of 1985) which was enacted as THE CONSTITUTION
(Fifty-second Amendment) Act, 1985
 state and Centre to 15% and also strengthened the Anti-Defection Law under Tenth
Schedule by increasing the number of members in favour required from 1/3rd to 2/3rd of the
total members of a political party in order for a merger to be valid in the eyes of law. 6 The
Punchhi Commission under the chairmanship of former Chief Justice of India Justice
Madan Mohan Punchhi submitted that pre-poll alliances must be treated as single political
7
party. The legislative intent of this amendment is not to alter the basic structure of the
Constitution of but to strengthen it by strengthening democracy.
4. Law Commission’s 170th report8 also recommended including pre-poll alliances under
the purview of Anti-Defection Laws. In Amar Singh vs. Union Of India & Ors.9 the court
observed that “a legislator who is born into a House through a political party or as a
nominated member or even as an independent candidate shall retain his birth mark and
shall continue as such till the dissolution of the House.” It is through this principle that the
legislative intent of the Amendment 102 flows through, wherein if a member seeks votes
on the basis of his association with parties and their ideologies, they cannot defect from
such parties and bring instability in the government.

5. Article 38 of the Directive Principle burdens the state to maintain the political stability
in the country. In Golak Nath v. State of Punjab, the principle of harmonious construction
was applied by Justice Subba Rao,10 and it was emphasized that the Fundamental Rights
and the Directive Principles form an ‘integrated scheme’ which was elastic enough to
respond to the changing needs of the society and one has to see fundamental rights in light
of the directive principles. The Supreme Court has expressly laid down in Ananda
Nambiar's case11 that the totality of the rights claimed by a legislator is privileges and
cannot claim the status of fundamental rights. This Amendment is not violative of basic
structure since the 102nd Amendment was brought on by years of contemplation regarding
such an Amendment and the electoral reforms contemplated were needed in order for the
smooth functioning of democracy.

b) Application of 102nd Amendment on Grand Mahagathbandhan

6. In the case of G. Viswanathan vs. The Hon'ble Speaker Tamil Nadu it was held that “a
deeming provision is an admission of the non-existence of the fact deemed. The
Legislature is competent to enact a deeming provision for the purpose of assuming the
existence of a fact, which does not even exist. It means that the Courts must assume that
such a state of affairs exists as real, and should imagine as real the consequences and
incidents which inevitably flow therefrom, and give effect to the same.”12 Since all pre-poll
alliances have been deemed to be political parties under this Act and the pre-poll alliance

                                                                                                                       
6
91st Amendment, Constitution of India
7
Punchhi Commission, VOL 2
8
Law Commission of India, 170th Report, 1999
9
Amar Singh vs. Union Of India & Ors. SC NO.317 of 2010
10
Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762)
11
K. Anandan Nambiar And Another vs Chief Secretary, Government Of Madras
12
G. Vishwanathan v. Hon’ble Speaker Tamil Nadu, 1996 AIR 1060, 1996 SCC (2) 353
 Grand Gathbandhan existed when this Amendment came into being, this Amendment shall
apply to this alliance.

c) Retrospective effects of 102nd Amendment

7. The Xth Schedule of the Constitution does not define political party. In the case of R.
Rajagopal Reddy vs. Padmini Chandrasekharan it was held when an Act is declaratory or
13
explanatory in nature, the presumption against retrospectively is not applicable. In Zile
Singh vs. State of Haryana it was noted that a explanatory Act is passed to supply obvious
omission or to clear up doubts as to the meaning of the previous Act. 14 In the case at hand
an attempt was made to explain the ambit of political parties and clear the past doubts of
the scope of the term since it wasn’t explicitly defined Schedule X of the Constitution.

8. The case of Narsingrao Gurunath Patil and Ors. vs Arun Gujarathi Speaker And Ors. 15,
held that there is nothing in the language of the Tenth Schedule to suggest that the
Parliament intended to exclude the operation of para 2(1)(a) in respect of coalition
Government. Coalition Governments are not uncommon in democratic countries. In our
country coalition Governments have ruled in the States and Centre. This shows that there
has been a confusion in interpreting the meaning of political party. The amending
provision only specifices the scope and ambit of the meaning of the term and hence it will
have retrospective operation.

II. Whether the actions of the governor were biased and are subject to judicial review?
9. The petitioners belong to the single largest party in the Assembly of Xuhar, and it is
strongly urged that in contrary to the law laid down by the Hon’ble Supreme Court in the
case of S. R. Bommai v. Union of India16; and Rameshwar Prasad Versus v. The Union of
India17, without ordering a floor test to prove majority, members in the Legislative
Assembly party or group, which did not have the largest number or majority were called to
form the Government.

10. In para 119 of the S.R Bommai (supra) case this principle has been crystallized by the
Hon’ble Supreme Court in the following manner:-“119. In this connection, it is necessary
to stress that in all cases where the support to the Ministry is claimed to have been
withdrawn by some legislators, the proper course for testing the strength of the Ministry is
holding the test on the floor of the House. That alone is the constitutionally ordained forum
for seeking openly and objectively the claims and counterclaims in that behalf. The
assessment of the strength of the Ministry is not a matter of private opinion of any
individual, be he the Governor or the President. It is capable of being demonstrated and
                                                                                                                       
13
R. Rajagopal Reddy Vs. Padmini Chandrasekharan [1995] INSC 98 (31 January 1995)
14
In Zile Singh vs. State of Haryana , AIR 2004 SC 5100
15
Narsingrao Gurunath Patil and Ors. vs Arun Gujarathi 2003 (1) BomCR 363
16
S. R. Bommai v. Union of India (1994) 3 SCC 1
17
Rameshwar Prasad Versus v. The Union of India (2006) 2 SCC 1
 ascertained publicly in the House. Hence when such demonstration is possible, it is not
open to bypass it and instead depend upon the subjective satisfaction of the Governor or the
President. Such private assessment is an anathema to the democratic principle, apart from
being open to serious objections of personal mala fides. It is possible that on some rare
occasions, the floor-test may be impossible, although it is difficult to envisage such
situation. Even assuming that there arises one, it should be obligatory on the Governor in
such circumstances, to state in writing, the reasons for not holding the floor-test..”
11. Hon'ble Supreme Court in Rameshwar Prasad and others vs Union of India and another,
(2006) 2 SCC 118:
Undoubtedly, defection is a great evil. It was contended for the Government that the
unprincipled defections induced by allurements of office, monetary consideration, pressure,
etc. were destroying the democratic fabric. With a view to control this evil; the Tenth
Schedule was added by the Constitution (Fifty- second Amendment) Act, 1985. Since the
desired goal to check defection by a legislative measure could not be achieved, the law was
further strengthened by the Constitution (Ninety-first Amendment) Act, 2003. The
contention is that the Governor's action was directed to check this evil, so that a
Government based on such defections is not formed.
Floor test is essential and should take place before appointing the CM, the governor cannot
act with malafide intent.19
12. The decision of the governor can be challenged if it is not based on relevant material or
is mala fide. SC cannot be a silent spectator watching the subversion of the Constitution by
the disparate use of the administrative powers of the Governor. (Rameshwar prasad v
uoi)Sarkaria and Punchhi reports affirmed in Nabam Rebia and Bamang Felix v. Deputy
Speaker, Arunachal Pradesh Legislative Assembly &Ors., (2016) In the case of Rameshwar
Prasad and Ors. vs. Union of India (UOI) and Anr. The court held that a Governor is
charged with the duty to preserve, protect and defend the Constitution and the laws, has a
concomitant duty and obligation to preserve democracy and not to permit the 'canker' of
political defections to tear into the vitals of the Indian democracy.20
13. It was also submitted that when sole object is to grab power at any cost even by
apparent unfair and tainted means, the Governor cannot allow such a government to be
installed. By doing so, the Governor would be acting contrary to very essence of
democracy. The purity of electorate process would get polluted. The framers of the
Constitution never intended that democracy or governance would be manipulated.
Defections strike at the root of representative government. They are unconstitutional,
illegal, illegitimate, unethical and improper. The Tenth Schedule cannot take care of all
situations and certainly not in the case of independents. It would be too hollow to contend
that the floor test would cure all impurity in gathering support of the legislators.

14. In order to interpret an article accurately we must look at it in the light of intention of
                                                                                                                       
18
Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr. (2006) 2 SCC
19
Anil Kumar Jha v. Union of India (2005) 3 SCC 150.
20
Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr. (2006) 2 SCC
 the legislators.21 The role of the Governor under Article 164 cannot be said to have very
wide connotation with complete freedom. The Governor is bound by the Constitution. The
office of the Governor is a vital link and a channel of impartial and objective
communication of the working of the Constitution by the State Government to the
President of India. He is to ensure protection and sustenance of the constitutional process
of the working of the Constitution in the State playing an impartial role.

Malafide intent of the Governor and judicial scrutiny of his decision

15. Bhagwati, J. in State of Rajasthan v. Union of India22 stated that merely because a
question has a political complexion, that by itself is no ground why the Court should shrink
from performing its duty under the Constitution if it raises an issue of constitutional
determination. , the Court cannot fold its hands in despair and declare "Judicial hands off."
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. This Court is the ultimate interpreter of the
Constitution and to this Court is assigned the delicate task of determining what is the
power conferred on each branch of Government, whether it is limited, and if so, what are
the limits and whether any action of that branch transgresses such limits. It is for this Court
to uphold the constitutional values and to enforce the constitutional limitations. That is the
essence of the rule of law.”

16. In the case of Nabam Rebia and Ors. vs. Deputy Speaker and Ors. it was held that the
Governor is not answerable to any court for the exercise and the performance of the powers and
duties of his office, or for 'any act done or purporting to be done by him' in the exercise and
performance of those duties. The words 'purporting to be done by him' are of very wide import,
and even though, the act is outside the scope of his powers, so long it is professed to be done in
pursuance of the Constitution, the Governor will be protected.

17. The Sarkaria Commission23 Report suggests that the Governor must ask the leader of the
single largest party to form the government in case of hung Assembly. The Punchhi Commission
(supra) reiterates the same sentiment of Sarkaria Commission. A principle followed by
Governors in formation of a government called the “Sri Prakash Doctrine”24 or the principle of
non-assessment was followed as a convention where in the case a single largest party fails to
form the government the Governor must invite the leader of the single largest party to form the
government.

                                                                                                                       
21
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225
22
State of Rajasthan v. Union of India AIR 1977 SC 1361
23
Fadia, Babulal, and Rajendra Menaria. Sarkaria Commission Report and Centre-State Relations. Agra: Sahitya
Bhawan, 1990. Print.
24
Governor vs. Speaker: The Constitutional/Political Controversy; Gopal Prasad Singh; Indian Journal of Political
Science
In the case of Manoj Narula v. Union of India25 the principle of constitutional morality was
defined as basically meaning to bow down to the norms of the Constitution and not to act in a
manner which would become violative of the rule of law or reflectible of action in an arbitrary
manner. It actually works at the fulcrum and guides as a laser beam in institution building. The
traditions and conventions have to grow to sustain the value of such a morality.

18. Leaving aside the discussion on the textual interpretation of the Constitutional provisions and
the Constituent Assembly Debates a constitutional convention has evolved over the last more
than 7 decades of accepting the opinion of Chief Justice in the appointment of a person as a
judge of Superior Court. This convention was said to be binding in the Second Judges Case26.

19. Beg C.J in State of Rajasthan v. Union of India27 said that constitutional practice and
convention become so interlinked with or attached to constitutional provisions and are often so
important and vital for grasping the real purpose and function of constitutional provisions that
the two cannot often be viewed apart.

20. In the case at hand considering that a convention had been developed to choose the single
largest party to form the government, the Governor’s decision to ask Hari Puttar is suspicious
and reeks of mala-fide intent.

III. Whether the actions of the speaker are subject to judicial review?
28
21. In the case of Rameshwar Prasad Ors vs Union Of India & Anr it was held that
since under Schedule X the function exercised by speaker is judicial in nature it must be
subject to judicial review. Under the Rajendra Singh Rana And Ors vs Swami Prasad
Maurya And Ors29 it was held that judicial review of the Speaker’s decision under
paragraph 6(1) of Tenth Schedule could be exercised on grounds like gross violation of
natural justice, perversity, bias and such like defects and will not be protected under
Article 122 and 212 of the Constitution. The Speakers/Chairmen while functioning
under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating
rights and obligations under the Tenth schedule, and their decisions in that capacity are
amenable to judicial review.30
Prof. Wade in `Administrative Law' 6th Edn, at page 72031, says "Parliament only gives
the impress of finality to the decisions of the tribunal on condition that they are reached
in accordance with the law. This has been the consistent doctrine for three hundred
years." In the case of Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and
Ors.32 it was held that if the Speaker fails to act on a complaint, or accepts claims of
splits or mergers without making a finding, he fails to act as per the Tenth Schedule.

                                                                                                                       
25
Manoj Narula v. Union of India, (2014) 9 SCC 1
26
Supreme Court vs Union Of India Writ Petition (civil) 1303 of 1987
27
State of Rajasthan v. Union of India AIR 1977 SC 1361
28
Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr. (24.01.2006-SC) :MANU/SC/0399/2006
29
Rajendra Singh Rana And Ors vs Swami Prasad Maurya And Ors, Appeal (civil) 765 of 2007
30
Kihoto Hollohan vs Zachillhu And Others, 1992 SCR (1) 686
31
Prof. Wade`Administrative Law' 6th Edn, at page 720
32
Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007) 4 SCC 270
 22.The Court said that ignoring a petition for disqualification is not merely an
irregularity but a violation of constitutional duties. In the case at hand the Speaker,
Geanie Beesli did not take the existing law of the land and the blatant defection by the
members of JGU into consideration and hence this action is subject to judicial review
and does not violate the privilege granted under Article 105 of the Constitution of India.
The speaker engaged in hasty decision-making and ignored the seriousness of the
matter at hand.
23. Whenever there is an infringement of a right or an injury, the Courts are there to
restore the vinculum juris, which is disturbed.33
B.P. Singhal vs. Union of India (UOI) and Anr.34 laid that the principle that is applied
by the courts is that in spite of a finality clause it is open to the court to examine
whether the action of the authority under challenge is ultra vires the powers conferred
on the said authority. Such an action can be ultra vires for the reason that it is in
contravention of a mandatory provision of the law conferring on the authority the
power to take such an action. It will also be ultra vires the powers conferred on the
authority if it is vitiated by mala fides or is colorable exercise of power based on
extraneous and irrelevant considerations.
24. In the matter of Raja Ram Pal vs The Hon’ble Speaker, Lok Sabha, it had been
clarified that proceedings of the legislature were immune from questioning by courts in
the case of procedural irregularity but not in the case of illegality. In this case the
Speaker completely disregarded the judicial principle of “audi alteram partem.”
In Chhabildas Mehta v. The Legislative Assembly, Gujarat State35, Justice Bhagwati
held :"The problem before us is whether the privilege can be read in Article 194(3). It is
no answer to this problem to say 'read the privilege in Article 194(3) and then
harmonise it with the other provisions'. If the privilege is inconsistent with the scheme
of the Constitution and its material provisions, it cannot and should not be read in
Article 194(3).
25. The presumed intention of the Constitution-makers in such a case would be that
such a privilege should not belong to the House of the Legislature."
Herein the Constitution provides for judicial review which has been exercised in the
past in line with the Constitutional provisions under Articles 136, 226 and 227 of the
Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6
and would be confined to jurisdictional errors only, viz., infirmities based on violation
of constitutional mandate, mala fides, non- compliance with rules of natural justice and
perversity.36

                                                                                                                       
33
Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala & Ors., [1962] 2 SCR 339
34
B.P. Singhal vs. Union of India (UOI) and Anr. AIR 2004 SC 296
35
In Chhabildas Mehta v. The Legislative Assembly, Gujarat State 1970 Guj.LR 729
36
Kihoto Hollohan vs Zachillhu And Others, 1992 SCR (1) 686
 26. Minority view in Kihoto Hollohan vs Zachillhu And Others37, held under the
speaker is elected on the strength of a political party and that inevitably the decision of
the Speaker is not free tugs and pulls of political polarizations. Goswami Committee38
on Electoral Reforms suggested that the Chairman or Speaker of the concerned House
must not make the decisions on defections. Hence it is submitted that the Speaker’s
actions must be examined according to the law of the nation.

Procedure followed by the speaker

27. In the case of Balchandra L. Jarkiholi and Ors. vs. B.S. Yeddyurappa and Ors.39
while examining the procedure followed by the speaker in order to decide defection of
13 members of the State Assembly, the Court observed that the Speaker’s decision was
given hastily in order to meet the Floor Test deadline set by the Governor which
culminated into one party winning the test due to the disqualification of the members. It
was laid down that such an act failed to meet the dual test of natural justice and fair
play. Even in D.Sudhakar & Ors vs D.N.Jeevanraju40, the Court examined the
intentions of the Speaker in detail in light of the circumstances prevailing in the case,
wherein the Speaker did not disqualify two members of the Legislative Assembly and
those votes led to the win of BJP government on the floor of the House while
disqualifying the other five-independent members elected just in time to meet the floor
test.
28. Although, in Mahachandra Prasad Singh's case 41and in Ravi S. Naik's case42, this
Court had held that the Disqualification Rules were only directory and not mandatory
and that violation thereof amounted to only procedural irregularities and not violation
of a constitutional mandate, it was also observed in Ravi S. Naik's case (supra) that
such an irregularity should not be such so as to prejudice any authority who is affected
aversely by such breach. Ms. Beesli, an ex-JGU member, only after a short hearing on
the matter refused to disqualify JGU members, a decision which reeks of perversity and
natural justice and cannot be acceptable as laid down in the Kihoto Hollohan43
judgment.

IV. Whether the Speaker can issue Notice to the Registrar General for breach of
privilege?

29. In the case of Keshav Singh vs Speaker, Legislative Assembly44 the majority
speaking though Gajendragadkar J. categorically held that “ A judge of a High Court
who entertains or deals with a Petition (under Art. 226) challenging any order or

                                                                                                                       
37
Kihoto Hollohan vs Zachillhu And Others, 1992 SCR (1) 686
38
Goswami Committee Report, 1990
39
Balchandra L. Jarkiholi and Ors. vs. B.S. Yeddyurappa and Ors. (13.05.2011 - SC) : MANU/SC/0617/2011
40
D.Sudhakar & Ors vs D.N.Jeevanraju, AIR 2004 SC 322
41
Dr. Mahachandra Prasad Singh vs Chairman, Bihar Legislative Assembly, SC 322 of 2004
42
Ravi S. Naik vs Union Of India, 1994 SCR (1) 754
43
Kihoto Hollohan vs Zachillhu And Others, 1992 SCR (1) 686
44
Keshav Singh vs Speaker, Legislative Assembly AIR 1965 SC 745
decision of the legislature imposing a penalty on the petition…for its contempt…does
not commit contempt of the said Legislature and the said Legislature is not competent
to take proceedings against such a Judge….”
This case clearly lays down that while there is a conflict between Legislature and
Judiciary and the judiciary has entertained petitions against the legislature, it may not
be forced to become answerable at the floor of the House.
 PRAYER

Wherefore in consideration of the above mentioned, it is prayed that this Hon’ble Court may be
pleased to:

1. Allow Matter No.123/2017 and hold, adjudge and declare that:

e The members of JGU are liable to be disqualified on the grounds of Defection as under
Schedule X of the Constitution of Dayabad.
f The governor’s decision to call JGU to form a government was biased and in clear
breach of the duties enshrined upon him by the constitution.

2. Dismiss Matter No. 124/2017And hold, adjudge and declare that:

d Chief Justice of the Hon’ble High Court of Xuhar can review the proceeding of the
Assembly of Xuhar, under the chairmanship of the Speaker against defection of the
JGU members.
e The inquiry into the biased decision of the Speaker by the Chief Justice of the Hon’ble
High Court of Xuhar does not amounts to breach of privilege

And pass any other order in the ends of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Date: 13th August 2017 Counsel for Appellants in Matter 123/2017
and Counsel Respondents
for in Matter 124/2017.

Place: Nishchintipur