7th Saquib Rizvi Moot Petitioner Memorial

BEFORE THE HON’BLE 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 ------------------


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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………… ………………………………………………………...…….......3,4 ……...…….......3,4 INDEX OF AUTHORITIES A. LIST OF BOOKS REFERRED ………………………………………….……….......5 ………………………………………….……….......5 B. LIST OF STATUTES REFERRED …………………………………………….........5 …………………………………………….........5 C. LIST OF JOURNALS REFERRED ………………………………………….............6 ………………………………………….............6 D. LIST OF WEBSITES REFERRED ………………………………………………......6 ………………………………………………......6 E. LIST OF REPORTS REFERRED …………………………………… ……………………………………………... ………... .......6 LIST OF CASES REFERRED …………………………………..…………................. ....7,8,9,10 STATEMENT OF JURISDICTION ……….………………………………………………........11 ……….………………………………………………........11 STATEMENT OF FACTS ………..………………… ………..…………………………………………… …………………………………........12,13 ………........12,13 STATEMENT OF ISSUES ……….…………………………………… ……….………………………………………………………........ …………………........ 14 SUMMARY OF ARGUMENTS ………………………………………………………….........15 ………………………………………………………….........15 ARGUMENTS ADVANCED …………………………………………………………….........16 …………………………………………………………….........16 PRAYER ………………………………………………………… ………………………………………………………………………………..............47 ……………………..............47


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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

HON’BLE

- HONOURABLE 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 ORGANISATION


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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


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INDEX OF AUTHORITIES A. LIST OF BOOKS REFERRED:

 D.D.BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS WADHWA

NAGPUR, 14TH EDN. (2009) . CONSTIT UTION OF INDIA, WADHWA &CO  ARVIND. P .DATAR, DATAR ON CONSTITUTION NAGPUR, EDN (2001). TH

 V.N.SHUKLA, CONSTITUTION OF INDIA, EASTERN BOOK CO, 12

EDN.

 Dr.HARI SINGH GAUR, THE INDIAN PENAL CODE, LAW PUBLISHERS

(INDIA)Pvt ltd, 12 thEDN(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) E DITION(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


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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 E LECTIONS (1998) 5. ELECTION COMISSION OF INDIA – PROPOSED ELECT ORAL REFORMS (2004)


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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. Farmer’s Society

1993 (2) SCC 363

Ltd. 14.

Secretary, Ministry of Information and

1995 (2) SCC 161

Broadcasting, Govt. of India v. Cricket Cr icket Association of Bengal 15.

Dinesh Trivedi, MP and Ors. v. Union of India &

1997 (4) SCC 306

Ors.


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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.

People’s 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 Vineeth Narayan v. UOI

1996 (2) SCC 199


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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


9

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.

2.

Manohar Lal Sharma v. UOI

2004 (2) BLJR 985 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


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STATEMENT OF JURISDICTION

This writ petitions filed as pro bono publico at the instance of an NGO along with the leader of a recognized reco gnized party under Art. 32 of the Constitution of India, involves a question of law with regard to the violation violation of Fundamental Right guaranteed under und er 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 affecting the Basic Structure of the Constitution. This Court being the Curator of the Fundamental Rights is vested with jurisdiction to entertain entertain this writ petition under Art 32. 32.


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STATEMENT OF FACTS

> Lindiya is located in the Lindiyan sub-continent. Albeit the co untry embraces different religions, culture and traditions, an overall o verall 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 later , Lindiya split split into two; the new country formed 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. Ho wever, 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 for almost 34 years of the 68 years 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 o f the followers of Fargoism who he claimed c laimed were motivated by their religious needs even to the extent of it being detrimental to the ent ire nation. > This statement infuriated the religious religious group who started large 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.


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> 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 criminalisation of politics . > Spontaneously, the Government passed The Lindiyan Representation of the Citizen’s (Amendment and Validation) Act 2013 widening it s ambit thereby reversing the judgment of o f the Supreme Court. > An NGO called the Peoples Peo ples Upliftment Organization that was working towards clean po litics litics 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 someone´s freedom’. > The People’s Upliftment Organization along with Mr.Angre filed a P IL before the Supreme Court of Lindiya to strike down the amendment. >The Laws & Constitution of Lindiya are pari – materia materia to those of India.


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STATEMENT OF ISSUES

1) WHETHER THE PETITIONERS , PEOPLES’S UPLIFTMENT UPLIFTMENT ORGANISATION AND MR.YASHWANTH ANGRE HAVE LOCUS STANDI TO APPROACH THIS HON’BLE 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.


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SUMMARY OF ARGUMENTS

1. The impugned amendment infringes upon the fundamental rights of the citizenry , particularly Art 19(1)(a). It also also violates certain principles principles recognized as a vital part of the Basic Structure of the Constitution. 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 country’s 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.


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ARGUEMENTS ADVANCED 1. LOCUS STANDI: S TANDI: 1.1.PIL:

The concept of Public Interest Litigation originated in USA in the case Gideon v. Wain Wright 1. 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, Hon’ble

Mr.Justice Krishna Iyer held:

“Public interest is promoted by a spacious construction of locus standi in our socio economic econom ic circumstances and conceptual latitudinarianism la titudinarianism 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 o f 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 pu blic or a class of the community comm unity 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 developing....Th e strict rule of locus standi applicable to private litigation is relaxed and a broad b road rule is i s 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,

1

Gideon v. Wain Wright 372 US 335 (1963). Mumbai Kamgar Sabha V. Abdul Abdul Bhai (1976) 3 SCC 832. 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


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“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 o fficers 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 & Others 5, this Hon’ble 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 Hon’ble Court while dealing with the writ petitions under Article Article 32 of the Constitution 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 pet ition under Art 32 wherein the petitioners

pro bono publico filed a writ assailing the appointment of some of the Ministers as the Council Co uncil of Ministers of Union of India, despite t heir involvement in serious and heinous crimes. 1.1.1.RES JUDICATA:

QUESTION REGARDING RES JUDICATA: 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

5

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 o f dismissal of SLP. This position has been explained by the SC in the foll fo llowing owing 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 “Dismissal at stage of special leave - without reasons - no res judicata, no n o merger” 1.2. BREACH OF FUNDAMENTAL RIGHT:

The SC in UOI v. Association Association for Democratic Reforms10 held that:

“Even a declaration of Fundamental Rights on the basis of the judgment rendered by the court would qualify qu alify for a Fundamental Rights included in chapter III. It is established that fundamental fun damental rights themselves have no fixed content, most of them are empty vessels into which each generation g eneration 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 & Anr 9 2000(6)SCC 359.

10

UOI v. Association for Democratic Reforms 2002 (5) SCC 294. MEMORIAL ON BEHALF OF THE PETITIONERS

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 Democrat ic society .These fundamental principles and societal so cietal 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 requirem ent 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 o f 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 o f 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 U.P V. Raj Narain, 1975 (4) (4) SCC 428. 15 S.P.Gupta V. UOI, 1981 Suppl. SCC 87. 12


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“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 o f 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.” Governm ent.” 

The SC in UOI V. Association Association for Democratic reforms17 ,held : “.. For 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 an d 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 o ut or expresses by casting vote. For this purpose, information about the candidate to be selected is must. m ust. 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.” m akers.” The SC in Association for Democratic Reforms , while adverting advert ing to the freedom of expression and right to information information in the context co ntext of Art 19(1)(a) of the Constitution of India , further held held that the voters’ right to speech or expression expression in the case of election would include casting of votes , held :

“ ..The voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote.” 

16 17

The Supreme Court in the case of PUCL V. UOI18

Dinesh Trivedi, MP and Ors V.UOI & Ors 1997 4 SCC 306. UOI V. Association for Democratic reforms 2002(5) SCC 294. MEMORIAL ON BEHALF OF THE PETITIONERS

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 th e concept of demo and an integral part of Art 19(1)(a).” 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 a nd 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, f irst, formulation of opinion about the candidates and second, the th e expression of 18 19

PUCL V. UOI 2003 (4) SCC 399. Lily Thomas Vs. Speaker, Lok Sabha 1993 (4)SCC 234. MEMORIAL ON BEHALF OF THE PETITIONERS

21

choice by casting the vote in favour of the th e preferred candidate at the polling booth.” 

In Resurgence India V. Election commissioner S C in commissioner of India20; the decisions of the SC PUCL v. UOI21 sand UOI v. Association Association for Democratic Re forms22 was reaffirmed.



23 In Krishnamurthy V. Sivakumar S ivakumar ,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 ju dicial 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 com mon citizens of this country. count ry. Not only a half-hearted half-h earted 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 an d 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.” 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 t he 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 s imple reason that in case the involvement in criminal case is subsequent su bsequent to the scrutiny and publication pu blication 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 no mination would be in violation of S33A o f the act and the right guaranteed under Art19. A democratic republican polity hopes and aspires to be governed by b y 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 a ffecting the sovereignty of the nation nat ion and many others. Hence, this particular part icular 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 f oundational features and basic structure of the Constitution.” This was first mentioned in the case of Sub-Committee on Judicial Accountability v. Union 26

25 of India . In Minerva Mills case 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 Madras 27,

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. MEMORIAL ON BEHALF OF THE PETITIONERS

23

“Freedom of speech and expression should,therefore, receive a generous support from all those who believe in the participation p articipation 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 an y 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 rem ain 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 o f Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association Association of Bengal29

“True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country.” 30 In UOI v. Associationfor Associationfor Democratic Reforms 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 an d the Pacific at Beijing in 1995 (As amended at Manila, 28 th 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 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 ou r 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 con stant affirmance of constitutional morality which is the pillar stone of good governance.”

31

Manoj Narula V. UOI 2014 (9) SCC 1. MEMORIAL ON BEHALF OF THE PETITIONERS

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. 33 In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh and Ors. , the SC, referring

to the object of the provisions provisions relating to corrupt practices, observed as follows:

“Clean, efficient and benevolent administration are the essential features of good governance g overnance which in turn depends upon persons of competency co mpetency and good character.” 34 In State of Maharashtra and others v. Jalgaon Jalgaon Municipal Corporation and others ,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 t o larger public interest in case of o f conflict. In Manoj Narula V. UOI35 “ In a democracy, the citizens legitimately expect that the Government Governm ent 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 f aith 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, a ction, 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 ar e 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 an d Ors. 2001 (3) SCC 594. 34 State of Maharashtra and others v. Jalgaon M unicipal Corporation and others 2003 (9) SCC 731. 33

35

Manoj Narula V. UOI 2014 (9) SCC 1. MEMORIAL ON BEHALF OF THE PETITIONERS

26

wherever democracy is nourished. The growth of democracy is dependant upon good governance g overnance 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 o f free and fair elections by mob muscle methods, or subtle perversion of discretion by men `dressed in little little brief authority’. For `be you ever so high, the law is above you’.

The moral may be stated stat ed with telling terseness in the words o f `William Pitt; 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 People’s Act to nullify the judgment of the t he Patna Pat na High H igh Court in Jan Chaukidar (People’s Watch) vs. Union of India and

Ors. 36 , which was upheld by the Supreme Court in Chief Election Commissioner vs. Jan Chaukidar (People’s Watch) and Another 37 . 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 People’s 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 (People’s Watch) vs. Union of India and Ors, 2004(2) BLJR 985. Chief Election Commissioner vs. Jan Chaukidar (People’s Watch) and Another, 2013(7) SCC 507. MEMORIAL ON BEHALF OF THE PETITIONERS

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 Citizen’s (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 38 Broach Borough Municipality and ors , 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 court’s 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. MEMORIAL ON BEHALF OF THE PETITIONERS

28

This

was

also

reiterated

in

Indira

Gandhi

v

Raj

39

Narain .

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]

40

were 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 o r 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 disrega rd the decisions d ecisions 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 m aking 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. MEMORIAL ON BEHALF OF THE PETITIONERS

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 recently in

S.T.Sadiq vs. State of Kerala and others 43 , 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 m ay alter the law la w as it stood stoo d when a decision de cision was arrived at. It is in this limited circumstance that a legislature may alter the very basis basi s 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 up on the judicial power must necessarily be declared to be unconstitutional.”

2.2.THE AMENDMENT ACT IS UNCONSTITUTIONAL: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 no t entitled to vote under Section 62(5) of the Representation of People’s 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 People’s Act, 1951. 19 51. Section 2(e) defines Elector:43

S.T.Sadiq vs. State of Kerala and others, 2015 (4) SCC 400. MEMORIAL ON BEHALF OF THE PETITIONERS

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 qualification for becoming a member of the House of People 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 th e 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 (people’s 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 th ose who have this right and also exercise it by voting in an election… election ….. In In a general sense, sen se, an a n elector is one who elects or has h as 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 th e measure prescribed by that instrument. 45

44

45

Jan Chaukidar (People’s Watch) v. UOI 2004(2) BLJR 985. Corpus Juris Secundum, Vol. 29, p. 16. MEMORIAL ON BEHALF OF THE PETITIONERS

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. off ice. 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 L aw temporarily tem porarily 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, ca se, the elector would not be qualified, qualif ied, 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

48

In Mahendra Kumar Shastri v. Union of India and Anr. , 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. MEMORIAL ON BEHALF OF THE PETITIONERS

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)

provision to which it is a proviso. Ltd.52 , held that normally a proviso does not travel beyond the provision 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 a ny express phraseology in that regard, it would confer an unfettered and absolute power or unlimited unlimited discretion on the said constitutional const itutional 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 Bharati’s 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. 54 In I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu , Nine-Judge Bench of the

Supreme Court, while dealing with the doctrine do ctrine 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 56

India and Ors .

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 Co urt time and again aga in and a nd more particularly in Centre for PIL and Another v. Union of India57 and another, N. Kannadasan v. Ajoy Khose and others58, Inderpreet Singh 59 60 Kahlon v. State of Punjab , Arun Kumar Agarwal v. Union of India, Ors .

53 54

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.

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, Or s. 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. UOI 62 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 h ave 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….. shak en….. It would w ould 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 f aith 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, a ction, 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 re 64, opined that the Doctrine of Constitutional Const itutional 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, cust ody, permits all a ll such suc h accused ac cused 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. MEMORIAL ON BEHALF OF THE PETITIONERS

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 ACTIS IRRATIONAL AND 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 MEMORIAL ON BEHALF OF THE PETITIONERS

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. demo cracy. 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 p rofessed 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 r ight to contest. The scheme of the RPA 1951 prior to the amendment kept those who are confined co nfined in prison or lawful custody from exercising the right to vote and thereby the right r ight to contest. The Parliament by incorporating the proviso permits even those tho se who are not having the t he right to vote to retain their name in the electoral roll and in that manner assist them to contest the t he election. By introducing this proviso the Parliament P arliament virtually overruled Anukul Chandra Pradhan v. 68 69 70 UOI , Association for Democratic case , PUCL case and Chief Election commissioner commissioner v. 71

Jan Chaukidar

which were with regard to purity in in election and good governance. governance.

The introduction of this proviso is an attempt at tempt to permit those who are in criminal cases to contest the election without any kind of o f distinction. The citizen is not benefitted benefitted by the t he impugned proviso in any manner. This amendment was introduced just to get over the judicial decisions and enable the tainted t ainted politicians to contest the election. This pro vision vision 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


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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 e fficiency 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 o f the State are absolutely significant, and in a way, imperative. The crucially recognised ideal which is requ ired to be realised is eradication of criminalisation of politics and corruption in public life. When criminality 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 dread ful fear that would rule supreme creating an incurable chasm in the spine of the whole citizenry. In People’s 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 people’s people’ s 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. M. P. and others v. Union of India and 73 co untry in reaching the others , lamented the faults and imperfections which have impeded the country

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 deep ly disturbing trends that are prevalent in our present society. The Court further noticed that

72

73

People’s Union for Civil Liberties and another v. Union of India and another 2013 (10) SCC 1. Dinesh Trivedi, M.P. and others v. Union Union of India and others 1997 (4) SCC 306. MEMORIAL ON BEHALF OF THE PETITIONERS

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 ph enomenon 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” circum spection” 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 can didates and voters with the object to prevent criminalization of politics and maintain probity in elections .” 75 In K. Prabhakaran v. P. Jayarajan Jayarajan , in the context of enacting disqualification under S.

8(3) of the Representation of the Peo ple 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 indu lging in criminality to gain success at an election.” 3.1.LOOKING BEYOND THE CLICHÉ ARGUMENT OF ‘PRESUMPTION OF INNOCENCE’: Under S.228 of the Code of o f 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. MEMORIAL ON BEHALF OF THE PETITIONERS

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 execut ive power with such a person perso n 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 perso n even of doubtful integrity is not appointed appo inted 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 cr iminal case and facing trial, is not appointed in any civil c ivil service because o f the alleged criminal antecedents, until acquitted. This perspective has been elucidated by the SC in the case of Manoj Narula V.UOI 76 . 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 h einous criminal offences or offences offen ces pertaining to corruption. There can be no dispute over the proposition that unless a person is convicted, con victed, 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 S etting 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 ch arge is a judicial act by an experienced judicial mind.…….This Court, on number of occasions, as a s 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 peop le never intend to be governed by persons who have criminal antecedents. This is not merely a hope and aspiration a spiration of citizenry but the idea is also engrained in apposite executive governance.”

76

Manoj Narula V. UOI 2014 (9)SCC 1. MEMORIAL ON BEHALF OF THE PETITIONERS

42

3.2. IMPACT OF CRIMINALIZED POLITICS ON THE COMMON MAN:

Criminalization of politics can have a three way impact on the society. stat e ensures the protection for every individual under its  Lindiya being a welfare state territory. Criminalized Criminalized poli po litics tics 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 o f their allies might resort to coercive tactics tact ics to get favourable votes from the citizens. Thus , the very situation of allowing such people to contest election poses an imminent threat to safety safety , The Supreme Court held held as such in K Prabhakaran v. P Jayarajan 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 con viction for certain offences is to prevent persons with criminal background from f rom entering into politics and the house – a powerful wing of governance. Persons with criminal background do pollute the process of election as they th ey do not have many a holds barred (sic) and have no no reservation from indulging into criminality to win success at an election.” 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 gen erally 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 man y quarters. There are constant reference to the unhealthy role of money mon ey power, muscle power and mafia power and to criminalisation, corruption, communalism and casteism.” 79

 It the case of PUCL V. UOI (NOTA) , 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.” 80

co mmenting on the present political  In Krishnamoorthy v Sivakumar , the SC while commenting scenario of the country co untry and criminalization of politics , enunciated as follows ,

“ In such a situation the generation of today, in its effervescent ambition and volcanic fury, smothers sm others the hopes, aspirations and values of tomorrow’s generation and contaminate them with the idea to pave the th e 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 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 Obama’s Presidential elections declaring $7 billion. Thus, the elections consume almost 12% of the Taxpayer’s money which have an higher opportunity cost. α

Electoral politics is largely dependent on o n the money and the funding that t hat it receives. Several studies by economists estimate that candidates and parties in the 2009 general elections alone spent roughly $3 billion on campaign expenditures.

α

Huge election expenses have also resulted into large-scale pervasiveness of so-called ‘black money’.

α

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. MEMORIAL ON BEHALF OF THE PETITIONERS

44

α

Candidates with criminal records often possess greater gr eater wealth, the negative effect of the stigma of criminal charges can be overcome by greater campaigning resources.

α

Thus, even if a candidate has any criminal record, he may fare well in elections due to the positive effect of the other markers.

α

Thus, overall a candidate with w ith 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’.

α

By-elections are misuse and abuse of people’s 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 gu ilty , 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 d ifferent committees constituted by various Governments for electoral reforms. Some of the reports that t hat have been highlighted are (i) Goswami Committee on Electoral Reforms (1990), (ii) Vohra Committee Report (1993), (iii) (iii) Law Commissi Co mmission on Report on Reforms of the Electoral Laws (1999), (iv) National Commission to Review the t he Working of the Constitution (2001), (v) Election Commi Co mmission ssion of o f India – Proposed Electoral Reforms (2004), (vi) Justice J.S. Verma Committee Co mmittee 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 Gr ievances, Law And Justice Just ice on Electoral Reforms (Disqualification Of Persons From Contesting E lections On Framing Of Charges Against Them For Certain Offences). The Report acknowledges the t he criminalization of our polity and the necessity of o f cleansing the political climate and had this t his 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 d emocratic institutions sterile. sterile. The MEMORIAL ON BEHALF OF THE PETITIONERS

45

Committee therefore feels that politics should be cleansed of p ersons with established criminal background. The objective is to prevent criminalisation 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.”


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PRAYER

For the reasons aforesaid, in the light of issues raised, arguments advanced and authorities cited, it is humbly submitted before this Hon’ble Court that it may be pleased to

 Declare the Lindiyan Representation of Citizen’s (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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