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TEAM CODE:

IN THE HONBLE SUPREME COURT OF LINDIYA


Writ Petition in Public Interest
(Under Article 32 of the Constitution of Lindiya)

IN THE MATTER OF:


PEOPLES UPLIFTMENT ORGANIZATION....Petitioner No.
1
YASHWANT ANGRE......Petitioner No.2
v.
UNION OF LINDIYA..Respondent No. 1

SUBMITTED TO THE HONBLE SUPREME COURT OF LINDIYA


-: MEMORIAL ON BEHALF OF THE PETITIONER NO. 1 & 2:-

TABLE OF CONTENTS

LIST OF ABBREVIATIONS......iv
INDEX OF AUTHORITIES....v
I.] TABLE OF CASES.v
II.] BOOKS AND ARTICLES.......vi
STATEMENT OF JURISDICTION.....vii
STATEMENT OF FACTS....viii
ARGUMENTS PRESENTED.....x
SUMMARY OF ARGUMENTS.........xi
ARGUMENTS ADVANCED....1
(A) THE

SLP

NO.

1110/2015

IS

NOT

MAINTAINABLE..............................................................1
A.1 APPROPRIATE ALTERNATE FORUM2
A.2 SCOPE FOR SPECIAL APPEAL UNDER RULE 5 OF ORDER 8 OF ALLAHABAD HIGH
COURT RULES, 1952..
...3
A.3 SLP IS NOT MAINTAINABLE AGAINST AN ORDER UNDER SECTION 11.
4
(B) THE PETITION FILED UNDER SECTION 11 AND SECTION 9 OF THE ARBITRATION
AND CONCILIATION ACT, 1996 IS MAINTAINABLE ....
...6
B.1

SCOPE

OF

SECTION

APPLICATION

...6
ii

B.2

APPLICABILITY

SECTION

OF

..

......7
B.3 COMPETENT JURISDICTION OF HIGH COURT OF ALLAHABAD
8
B.4 MAINTAINABILITY OF SECTION 11 APPLICATION...9
I THE HONBLE HIGH COURT OF ALLAHABAD DID NOT ERR IN PASSING
BASED ON THE TERMS

OF

THE

ORDER

A MOU ........

..10
C.1

EXISTENCE

OF

PRIMA

FACIE

CASE.

..10
C.2

UNFAVORABLE

BALANCE

OF

CONVENIENCE..

..11
(D) THE APPELLANT, MLF IS GUILTY FOR ABUSE OF ITS DOMINANT POSITION UNDER
THE COMPETITION ACT, 2002

.......

.11
D.1 DOCTRINE

OF

SINGLE ECONOMIC ENTITY....

12
D.2 NATURE OF LEGISLATION OF COMPETITION ACT, 2002 IS THAT OF A WELFARE
LEGISLATION .....13
D.3 PIERCING THE CORPORATE VEIL .....
13
(E) THE PENALTY IMPOSED BY COMPAT IS IN ACCORDANCE WITH THE PROVISIONS
OF COMPETITION ACT, 2002 ........
.16
PRAYER FOR RELIEF.....19

iii

LIST OF ABBREVIATIONS

ECI

ELECTION COMMISSION OF INDIA

LC

LAW COMMISSION OF INDIA

LDP

LINDIYAN DEVELOPMENT PARTY

LPP

LINDIYAN PEOPLES PARTY

PIL

PUBLIC INTEREST LITIGATION

RPA

THE REPRESENTATION OF THE PEOPLE ACT, 1951

INDEX OF AUTHORITIES

iv

I.] TABLE OF CASES

II.] BOOKS AND ARTICLES


Arvind P Datar, Commentary On The Constitution of India (2nd edn, Wadhwa and Company, New
Delhi 2007).
D D Basu, Commentary on the Constitution of India (8th edn, LexisNexis Butterworths Wadhwa
Nagpur, New Delhi 2008).
D P Mittal, Competition Law and Practice (3rd edn, Taxmann Publications Pvt Ltd, New Delhi
2011).
H M Seervai, Constitutional Law of India (4th edn, Universal Law Publishing Co Pvt Ltd, New
Delhi 2006).

STATEMENT OF JURISDICTION

The Petitioners herein seek to invoke the Extra-ordinary Writ Jurisdiction of the Honble
Supreme Court of Lindiya under the provisions of Article 32 of the Constitution of Lindiya.
The petition is submitted under Article 32 read with Rule 12 of Order XXXVIII of the Supreme
Court Rules, 2013, per the format described in the said complementary provision. Hereby, the
Petitioners most humbly submit that this Honorable Court possesses competent writ jurisdiction
to hear the matter.

STATEMENT OF FACTS

It is most humbly submitted that:


I.
Lindiya is a country located in the Lindiyan subcontinent in south-central Asia. It is a huge
country with a glorious heritage and a rich diversity of religions, cultures, traditions, and
customs. There are mainly four major religions which are preached in the territory of Lindiya
which include : Brogmoidism, Chantry, Chrislam and Einhasad. There are other religions as well
but the aforementioned form the major part of the entire religious diversity. Lindiya became
independent in the year 1945 and the driving force behind its independence was the LDP
(Lindiyan Development Party).
II.
A month after Lindiya attained its independence, the country was split into two due to the
religious differences between the followers of the two major religions in Lindiya i.e.
Brogmoidism and Fargoism thereby forming a new country which came to be known as Bakel
and a majority of its population followed Fargoism as their religion. Even though 25 years have
passed since the conflict between the abovementioned two religious groups, differences exist
even today and are being exploited by politicians as they use these differences in order to
facilitate vote-bank politics and for gaining political mileage.
III.
Over the years despite the obstacles, Lindiya has developed into an ideal model for developing
economies. The economy of Lindiya is largely an industrial economy with only about 20% of the
population involved in and carrying out agricultural activities. The economic liberalization in
Lindiya was initiated in the year 1991 and thereby the country adopted a market-oriented
approach and hence expanded the role of private and foreign investment.

vi

IV.
The political scenario of Lindiya is such that the LDP has held the office for 34 of the 68 years
after independence and the remaining saw the main opposition party i.e. the LLP (Lindiyan
Peoples Party) in power. Even though Lindiya has shown a remarkable pace of development
under the leaderships of both the parties, the country has not yet obtained the status of a
developed country.
V.
Mr. Ranjeet Thadani, the leader of the LDP is a strong advocate of politics that is clean and free
from corruption. Despite making commendable developments in various fields, the leadership of
LDP saw rampant corruption through several scams and LDP lost public trust because of which
LLP came to power.
VI.
On 20th May 2005, Mr. Thadani was invited by the Star of Lindiya, a Lindiyan news channel
along with Mr. Yashwant Angre and Mr. Shekhar Verma, who represented LLP. During the
interview, Mr. Verma accused the Thadani family for being responsible for the split of Lindiya.
Mr. Thandani responded that the split of Lindiya was a result of the conflict between
Brogmoidists and Fargoists which mainly took place due to the unhealthy environment created
by the followers of Fargoism. Consequently there were riots in the nation and Mr. Thadani was
charged with Section 153A(b) and Section 295A of the Lindiyan Penal Code. The trial of Mr.
Thadani was conducted on 20th September 2007 in the case of State of Baharashtra v. Ranjeet
Thadani whereby he was convicted under Section 153A(b) and sentenced to a 7 year
imprisonment by the Sessions Court.
VII.
In the elections held in 2010, the LDP returned to power and among its cabinet ministers there
were some who had prior criminal records and some were facing trial under the provisions of the
Prevention of Corruption Act, 1988. When Mr. Thadani was released, he started working towards

vii

a system free from corruption. Due to his commendable work, he was nominated was the prime
ministerial candidate of the LDP for 2015 elections.
VIII.
On 10th July 2013 the Supreme Court of Lindiya delivered a judgment whereby citizens who
were convicted of certain offences could no longer stand for election. The Government
immediately amended the Lindiyan Representation of the Citizens Act to increase the ambit of
the legislation so much so that it reversed the judgment of the Supreme Court thereby making it
redundant.
IX.
An NGO called the Peoples Upliftment Organization along with Mr. Angre filed a PIL before the
Supreme Court of Lindiya on 10th December 2014 in order to strike down the amendment
brought about in the legislation.
Hence, the matter before this Honble Court.

viii

ARGUMENTS PRESENTED

(A) Whether the Writ Petition is maintainable;


(B) Whether the impugned validation act validly overruled the judicial pronouncement of the
Supreme Court of Lindiya, 2013;
(C) Whether the disqualification from being elected to a legislature can be imposed at the
stage of framing of charges;
(D) Whether the impugned Amendment and Validation Act, 2013 is constitutionally valid.

ix

SUMMARY OF ARGUMENTS

(A)
I.

THE WRIT PETITION IS MAINTAINABLE.


Article 32 of the Constitution of India empowers the Petitioners herein to appeal to this

II.
III.

Court in Public Interest.


The requisite of locus standi has been diluted in Public Interest Litigations.
Simply, an interest in public matters of preservation, or prevention of violation, of rights

IV.

of all persons or a certain group of persons, without personal motives is sufficient locus.
The impugned enactment violates Fundamental Rights of Life and Equality, guaranteed

V.

under Part III of the Constitution.


The impugned amendment violates Rule of Law, which is an essential feature within
Basic Structure of the Constitution.

(B)
I.

THE

IMPUGNED

VALIDATION ACT

INVALIDLY OVERRULED

THE

JUDICIAL

PRONOUNCEMENT OF THE SUPREME COURT OF LINDIYA, 2013


Notwithstanding, the Legislature had the requisite legislative competence to enact
impugned amendment and validation act under Article 327 read with Entry 72 of List 1 of

II.

Schedule VII of the Constitution.


The impugned amendment and validation cannot simply over-rule a judicial

III.

pronouncement, for it has to observe Rule of Law.


For the impugned enactment to validly nullify a judgment, it must alter the foundation of

IV.

the said judgment so as to render it ineffective, which is not the case in the instant matter.
Further, the legislature while nullifying the judgment, must tend to the deficits, defects
and lacunas pointed out by the court vide the so nullified judgment, which has not been

V.

(C)

done here.
The impugned legislative act is arbitrary and amounts to passing of a Bill of Attainder.

THE DISQUALIFICATION FROM BEING ELECTED TO A LEGISLATURE CAN BE


IMPOSED AT THE STAGE OF FRAMING OF CHARGES

I.

Criminal Jurisprudence recognizes Presumption of Innocence as a Principle of Natural

II.
III.

Justice.
However, the said principle has exceptions to it, and can be dispensed with if need be.
The stage of Framing of Charges has been precisely selected, for it involves sufficient
application of judicial mind, and disqualification hereat shall not infringe the right to

IV.

fairness and fair trial.


Law Commission in its 244th Report justified that the proposed disqualifications have no

V.

bearing on the guilt of the person, whatsoever.


The Courts can, in regard to existing conditions and circumstances, impose such
disqualifications to curb the menace of criminalization of politics.

(D)

THE IMPUGNED AMENDMENT AND VALIDATION ACT, 2013 IS CONSTITUTIONALLY

I.

INVALID
The impugned Amendment violates Article 14 of The Constitution of Lindiya, as it
creates a classification that fails the test of intelligible differentia and rational nexus with

II.

the object of the governing act.


The impugned act overrides Rule of Law, for it is arbitrary, negates equality and

III.

undermines the exclusive power of Review vested with the judiciary.


The impugned state action adds impetus to the menace of criminalization of politics,
which has a direct bearing on the lives of the populace in general. Hence, it grossly
contravenes the essence of a meaningful and dignified life, which the state itself is

IV.

obliged to ensure under Article 21 of the Constitution.


The impugned Amendment and Validation Act, by altering the scope of Section 7(b) of
The Representation of the Citizens Act, 1951, excludes application of superior
Constitutional provisions of Article 102(1)(a-d), and those concerning inter alia,
Defection and Office of Profit.

xi

ARGUMENTS ADVANCED

(A) THE WRIT PETITION IS MAINTAINABLE


1. The petitioners vide the instant petition reverently seek to invoke Extraordinary Writ
Jurisdiction of this Honble Court under the provision of Article 32 of the Constitution of
Lindiya, which thus reads,
Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
2. The aforementioned provision must be read in consonance with Article 39A of the
Constitution of Lindiya which enunciates the principle of Equal Justice and Free Legal Aid, viz.
The State shall secure that the operation of the legal system promotes justice, on a basis of
equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.
3. In the light of the abovementioned, the Supreme Court of Lindiya has been empowered by the
Constitution of entertain petitions from the public directly provided that such petitioners must
have a public interest. In the present case, the petitioners have approached this Honble Court
1

with the objective of securing clean politics in Lindiya. In defining the rule of locus standi in
Public Interest Litigations, no rigid litmus test can be applied since the broad contours of PIL
are still developing apace seemingly with divergent views on several aspects of the concept of
this newly developed law and discovered jurisdiction leading to a rapid transformation of judicial
activism with a far-reaching change both in the nature and form of the judicial process.
4. The dominant object of PIL is to ensure observance of the provisions of the Constitution or the
law which can be best achieved to advance the cause of community or disadvantaged groups and
individuals or public interest by permitting any person, acting bona fide and having sufficient
interest in maintaining an action for judicial redress for public injury to put the judicial
machinery in motion like actio popularis of Roman Law whereby any citizen could bring such
an action in respect of a public delict1.
5. The Supreme Court has widely enlarged the scope of PIL by relaxing and liberalizing the rule
of standing by treating letters or petitions sent by any person or association complaining
violation of any fundamental rights and also entertaining writ petitions filed under Article 32 by
public-spirited2 and policy-oriented activist persons or journalists or of any organization rejecting
serious challenges made with regard to the maintainability of such petitions and rendered many
virtuosic pronouncements and issued manifold directions to the Central and the State Governments, all local and other authorities within the territory of India or under the control of the
Government of India for the betterment of the public at large in many fields in conformity with
constitutional prescriptions of what constitutes the good life in a socially just democracy3.
6. The Asiad case was brought before the Supreme Court of India under article 32 of the
constitution seeking protection of democratic rights of the people against breach of numerous
labor laws as regards the workers engaged in the Asiad project. 4

It has since, been the

undisputed legal position that a Public Interest Litigation is maintainable with sufficient locus, if
the matter pertains to violation of Fundamental Rights, like those under Article 14, 19 and 21.5

Janata Dal v. H.S. Chowdhary And Ors., AIR 1993 SC 892 (India).
Bandhua Mukti Morcha v. Union of India, (1986) Supp SCC 553 (India).
3
Id.
4
M.P. JAIN, CONSTITUTION, 1371, 7th ED; PUDR v. UOI, AIR 1982 SC 1473 (India).
5
Indian Council of Legal Aid and Advice v. Bar Council of India and Anr, (1995) 1 SCC 732 (India); Rama Kant
Pandey v. Union of India, 1993 SCR (1) 786 (India).
2

The present Petition has been filed in public interest6 as the matter affects the very democratic
setup of Lindiya and hence the Petitioners have a locus standi before this Court. The petition
satisfies all requisites of a maintainable Public Interest Litigation as elucidated below.
A.1 VIOLATION OF THE FUNDAMENTAL RIGHT TO EQUALITY ENSHRINED IN PART III OF
THE CONSTITUTION
7. The legislature vide the impugned act has prima facie abused its power to serve its interests
the best, by enabling potential criminals in lawful police custody to contest elections to any
legislative body in the country. In furtherance of these skewed vested interests, the legislation has
create a classification, whereby, disregarding the bar on all persons in lawful police custody as
delineated in Section 62(5)7 from exercising their right to participate in the democratic process of
representation, simpliciter - elections, a class persons viz. those willing to participate in elections
by virtue of contesting their candidature, are allowed to take part in elections, as opposed to
rights of those willing to participate by simply voting, and not contesting. Such a classification is
bound to fail the verification of Intelligible Differentia.
8. Further, the said classification has no rational nexus with the object of the governing act i.e.
Representation of The Citizens Act, 1951. Quite the contrary, the said act intends to exclude
participation of criminals from the democratic process, in other words, it aims to keeps criminals
away from the election scene. Vide the culled out classification, the legislature blatantly seeks to
permit criminals from entering the election arena, which is in complete contradiction with the
objects and reasons of the governing act.
9. For the sake of brevity, further elaborations have been made in the proceeding issues. It is
suffice to adduce the legal position aptly that in case of 2 persons similarly situated, granting
permission to one and denying it to the other, as in the instant case, would amount to violation of
the right mentioned in Article 14 of the Constitution. 8 Hence, It is submitted that the impugned
Amendment and Validation Act is discriminatory and arbitrary in its very nature, and is liable to

Mahendra Kumar Shastri v. Union of India, (1984) 2 SCC 442 (India).


Section 62(5), The Representation of The Peoples Act, 1951
8
Krishnaswamy Reddiar Educational Trust v. Member Secretary, National Council for Teacher Education, (2005) 4
SCC 89 (India).
7

be struck down for violating the fundamental right to equality, enshrined in Part III of the
Constitution of Lindiya.
A.2 INFRINGEMENT OF RIGHT TO LIFE
10. The Honble Supreme Court has implied Right of Privacy from Article 21 by interpreting it
in conformity with Article 12 of the Universal Declaration on Human Rights and Article 17 of
the International Covenant on Civil and Political Rights, 1966. Both of these international
documents provide for the right of privacy; India is a signatory to both and they do not go
contrary to Indian municipal law.9
11. The same rational can be applied with political freedom to elect a clean representative as it
can be corroborated with the Political Rights as enshrined under International Covenant on Civil
and Political Rights, 1966 and United Nations Convention Against Corruption. It is thus
imperative to note that the matter at hand pertains to the main political right to participate in the
process of election in a country governed by a representative form of democracy. As a corollary,
discriminatory political rights coupled with violation of Fundamental Rights of Equality and
Equal protection of laws, has direct bearing on the lives and liberties of the populace. That said,
it must also be regarded that criminalization of politics, flowing from such amendment shall
entail abhorrent violations of rights guaranteed under Article 21 of the Constitution of Lindiya,
and further increment the volume of pending litigation before Courts of law.
A.3 VIOLATION OF RULE OF LAW
12. The asaid case10, in the genesis of Public Interest Litigation, emphasized that the courts shall
endeavor preservation of Rule of Law, in the interest of the weaker and unrepresented sections of
the society, and violation of which shall be remedied by Courts of law. 11 For the sake of brevity,
since this point has been exhaustively discussed in the proceeding sections herein, It shall suffice
to submit that the State action of enacting the impugned amendment is arbitrary; and is solely
intended to nullify the effect of the honble Supreme Courts judicial pronounce that barred

Peoples Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 (India).
Supra note 10.
11
Ibid para 2
10

potential criminals, in lawful police custody from lurking anywhere near elections, in furtherance
of securing purity of elections.
13. It is most humbly submitted before this Honble court that Mr. Ranjeet Thadani had been
convicted for indulging in wanton vilification upon the religion of a particular group of persons
in Lindiya under Section 153A of the Lindiyan Penal Code. After the judgment pronounced by
this Honble Court on 10th of July, 2013,12 the position of elections in the country became such
that many politicians of LLP including Mr. Thadani would have been barred from contesting
elections.
14. The Government immediately amended the Lindiyan Representation of the Citizens Act to
increase the ambit in order to reverse the judgment of this Court. This unsual haste on the part of
the Parliament to amend the existing law in order to reverse the said judgment reveals that there
was an ulterior intention behind such move so that the politicians who have had criminal charges
against them can still participate in the election process. The entire object of such a judgment
was to make the political setup clean and free from corruption, which is being defeated by the
increase in ambit of the legislation in question. The judgment of this Honble Court sought to
cure the defect of unclean politics that had been persisting in the present system from a long
time. The impugned Amendment however increased the scope of misuse of the defect 13 and thus
is against public welfare.

(B)

THE

IMPUGNED

VALIDATION

ACT

INVALIDLY

OVERRULED

THE

JUDICIAL

PRONOUNCEMENT OF THE SUPREME COURT OF LINDIYA, 2013


15. The controversy herein is in regard to the validity of the nullifying effect of the impugned act
on the Supreme Court Decision, dated 10th July, 2013. The pari-materia judgment delivered by
the Supreme Court of India, interpreted the provisions of Representation of Peoples Act, 1951, in
consonance with the relevant object of the said act i.e. inter alia, to maintain purity of
elections14.15 This pronouncement was though nullified the same day, by the legislature vide the
12

Moot Proposition, para 14.


Sarwan Singh Lamba & Ors. v. Union of India & Ors. 1995 AIR 1729 (India).
14
Mahendra Kumar Shastri v. Union of India and Anr., (1984) 2 SCC 442 (India).
15
Chief Election Commissioner v. Jan Chaukidar (Peoples Watch) and Ors., (2013) 7 SCC 507 (India).
13

Representation of The Peoples (Amendment and Validation) Act, 2013. The legislative intent
that can, hence, be accurately culled out is to serve vested interests of corrupt politicians.
16. In furtherance of analysis of the said controversy, at the outset, a reference shall be made to
the settled position in PILs that the courts shall strive to preserve the impeccability of Rule of
Law and rectify any deviation from the principle. Further, while deliberating upon a similar
controversy, it was found that the State Legislature by enacting the Amendment Act has
encroached upon the judicial power entrusted to judicial authority resulting in infringement of a
basic feature of the Constitution the Rule of Law and consequently held that when the
Amendment Act nullifies an award made in exercise of the judicial power, by encroaching upon
the judicial power of the State, we have no option but to declare it as unconstitutional having
regard to the well settled and undisputed legal position that a legislature has no legislative power
to render ineffective the earlier judicial decisions by making a law which simply declares the
earlier judicial decisions as invalid and not binding, for such powers, if exercised, would not be
legislative power exercised by it, but judicial power exercised by it encroaching upon the judicial
power of the State.16
17. This aspect of the matter does not appear to have properly been considered by the Legislature
and thus the enactment of the impugned Act only seeks to nullify the effect of the judgment of
this court and does not address the problem at hand. The lacuna still persists in the election
process and the democratic setup of Lindiya and therefore such nullification done be the
Legislature is improper, invalid and unconstitutional.17
18. It is well settled by a plethora of decisions of this Court that a binding judicial
pronouncement between the parties cannot be made ineffective with the aid of any legislative
power by enacting a provision which in substance overrules such judgment and is not in the
realm of a legislative enactment which displaces the basis or foundation of the judgment and
uniformly applies to a class of persons concerned with the entire subject sought to be covered by
such an enactment having retrospective effect.18

16

G.C. kanungo v. State of Orissa, 1995 SCC (5) 96 (India).


Assistant Commissioner of Agricultural Income Tax & Ors. v. M/s. Netley B Estate & Ors., 2015 SCC OnLine
SC 291 (India).
18
S.R. Bhagwat and Ors. v. State of Mysore (1995) 6 SCC 16 (India).
17

19. The object of legislative overruling is to remedy a defect that has crept into the legislative
framework and thereby creates a lacuna which needs to be addressed and thus if the Legislature
does so by overruling a decision of the Court, such overruling is permissible in the eyes of law.
However, in the present case, the impugned amendment sought to increase the ambit of the
Representation of The Citizens Act, 1951 to such an extent, whereby politicians, in lawful police
custody and charged with certain offences, would still be able to contest elections and be a part
of the democratic process of the elections in the Republic of Lindiya, 19 which thereby defeats the
very purpose for which the judgment was pronounced. Further, due regard shall be paid to the
fact the impugned enactment was enacted in haste, post the Supreme Courts verdict.
20. The defect identified herein regards to cleanliness of politics, which has not been cured. The
judgment delivered by the Honble Supreme Court of Lindiya on 10 th of July, 2013 sought to
address the issue of politicians with unclean hands being a part of the democratic process of
elections. This judgment imposed restriction on the freedom of those politicians who have had
criminal records against them. Such a move not only made the process of elections fairer but also
made it cleaner and was based on proper and cogent grounds. The focus of the Court was upon
the defect of unclean politics. Hence, as rightly concluded, a practice whereby the legislature, in
an attempt to remove the basis of the judgment, ushers in substantive amendments
retrospectively in the garb of clarificatory or declaratory amendments is not a valid exercise of
legislative power. Such an attempt by the legislature not only undermines the independence of
the judiciary but also disturbs the critical balance between the three branches of government.20
B.1 DOCTRINE OF SMALL REPAIRS
21. The common law Doctrine of Small Repairs permits retrospective amendment where the aim
of such amendment is to convey the meaning or to clarify the intent of the provision as it was
always meant to be; to remove a patent defect which, but for the modification, would have
absurd results; to supply an obvious omission in a former statute; or to explain a formal statute.
Therefore, retrospective legislation which does not satisfy the requirement of small repairs but
in fact leads to substantive amendments which are neither clarificatory nor declaratory in nature,
may be struck down by the Courts as ultra vires and unconstitutional on the grounds that it is
19
20

Exhibit 2 of Moot Proposition.


Doctrine of small repairs.

unreasonable, harsh or oppressive.21


22. It is a well-settled law that the Legislature cannot overrule any judicial decision without
removing the substratum or the foundation of that judgment by a retrospective Amendment of the
concerned legal provision.22 The foundation of the case in subject was based on the defect of
unclean politics and this defect is yet to be cured even after the impugned Amendment was passed
by the Parliament. Therefore, the foundation of the case at hand has not been removed, as the law
still does not furnish any remedy whatsoever.
23. The substratum of the case remaining intact, the judgment pronounced by the Supreme Court
of Lindiya remains binding and operative and in the absence of any legislation that would remove
it by the exercise of competent legislation. The binding effect of the judgment cannot be upset
which indeed makes the exercise of legislative power to be incompetent and forbidden in the eyes
of law. Thus, such legislation can be dubbed to be an abrogative attempt to improperly overrule
the binding decision of this Court and hence arbitrary and unreasonable.
24. From time to time controversy has arisen as to whether the effect of judicial pronouncements
of the High Court or the Supreme Court can be wiped out by amending the legislation with
retrospective effect. Many such Amending Acts are called Validating Acts, validating the action
taken under the particular enactments by removing the defect in the statue retrospectively
because of which the statue or the part of it had been declared ultra vires. Such exercise has been
held by the Courts as not to amount to encroachment on the judicial power of the courts 23. The
exercise of rendering ineffective, the judgments or orders of competent courts by changing the
very basis by legislation is a well-known device of validating legislation.
25. Any action in exercise of the power under any enactment which has been declared to be
invalid by a court cannot be made valid by a validating Act by merely saying so unless the defect
is removed with retrospective effect. The validating legislation must remove the cause of
invalidity. Till such defect or the lack of authority pointed out by the court under a statute is
removed by the subsequent enactment with retrospective effect, the binding nature of the
judgment of the court cannot be ignored. The foundation of the judgment pronounced by this
21

Id,
K. Sankaran Nair (dead) through LRS v. Devika Amma Malathy Amma and Others, (1996) 11 SCC 428 (India).
23
Bhubaneshwar Singh and Anr. v. Union of India and Ors. (1994) 6 SCC 77 (India).
22

Court remains untouched and has not been tinkered with. Therefore, the overruling of this
decision by the Legislature is arbitrary and unconstitutional.
B.2 BREACH OF RULE OF LAW DUE TO ARBITRARINESS IN THE IMPUGNED STATE ACTION
26. The well-settled position that rule of law is a facet of equality under Article 14 and breach of
rule of law amounts to violation of Article 14 and, therefore, breach of rule of law may be a
ground for invalidating the legislation being in negation of Article 14.24 Untangling the
convolution of judicial character of an Arbitration Tribunal, the learned Supreme Court bridled
the scope of legislative jurisdiction over the instant subject. It was held therein, that where the
arbitral awards sought to be nullified under the Amendment Act are those made by Special
Arbitration Tribunals constituted by the State itself under a prior Amendment Act to decide
arbitral disputes to which State was a party, it cannot be permitted to undo such arbitral awards
which have gone against it, by having recourse to its legislative power for grant of such
permission as could result in allowing the State, if nothing else, abuse of its power of
legislation.25
27. Further, It has been settled law by a catena of decisions of the Supreme Court of India that
the legislature cannot directly annul a judgment of a court. The legislative function consists in
"making" law (vide Article 245 of the Constitution of India) and not in "declaring" what the law
shall be (vide Article 141 of the Constitution of India). If the legislature were at liberty to annul
judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass
legislative judgments on matters, which are inter- parties. Interestingly, in England, the last such
bill of attainder passing a legislative judgment against a man called Fenwick was passed as far
back as in 1696. A century later, the US Constitution expressly outlawed bills of attainder (vide
Article 1 Section 9).26
28. Lastly, It shall suffice to allude to the precise matter of S.R. Bhagwat27, wherein the Supreme
Court of India decided against the respondent-state, as by enacting the impugned Act, the state
had clearly sought to nullify or abrogate the binding decision of the High Court and thus had
24

Dr. Subramanian Swamy v. Director, CBI, (2014) 8 SCC 682 (India) (para 86).
Supra note 18.
26
S.T. Sadiq v. Kerala, (2015) 4 SCC 400 (India) (para 13).
27
Supra note 20.
25

encroached upon the judicial power entrusted to various authorities functioning under the
relevant statutes and the Constitution. Such an exercise of legislative power was held to not to be
countenanced.28
29. The Court in the said case, therefore, struck down the revelant section of the impugned act as
unconstitutional, illegal and void. So far as the impugned portions clearly conflicted with the
binding direction issued by the Division Bench of the High Court against the respondent-State
and in favour of the petitioners. 29 The Learned Court in the matter of Karnataka Housing Board
v. C. Muddaiah,30 later affirmed this position.
30. In light of the adduced matters hereinabove, it is submitted that the impugned Amendment
and Validation Act, 2013 has arbitrarily overruled the Judicial Pronouncement of 2013, rather
with the clear mala-fide intent to nullify its obvious effects on vested interests of criminal
politicians. It is manifest that the impugned enactment does not cures the defect of
criminalization of politics, neither does it substantially alter the foundation of the judgment for
the law still does not further any remedy, commensurate to the lacuna that surfaced before the
Court. It is merely declaratory in nature and the widened definition does not conform to the
Constitutional Mandate, discussed hereinafter. Further the impugned validation breaches Rule of
Law, being a classic example of the forbidden Bill of Attainder.

(C) THE DISQUALIFICATION FROM BEING ELECTED TO A LEGISLATURE CAN BE IMPOSED


AT THE STAGE OF FRAMING OF CHARGES
31. Though conceded that every statutory enactment bears a presumption of constitutionality
with it, in order to sustain the presumption of constitutionality, the court may take into
consideration matters of common knowledge, matters of common knowledge, matters of
common report, the history of the times and may assume every state of facts, which can be
conceived.31
28

Ibid para 18.


Ibid para 20.
30
(2007) 7 SCC 689 (India).
31
Ram Krishna Dalmia v. Justice S.R. Tendolkar & ors., AIR 1958 SC 538 (India); Union of India v. Elphinstone
Spg. And Wvg. Co. Ltd., (2001) 4 SCC 139 (India) (Para 16).
29

10

32. The presumed constitutionality of the impugned Amendment and Validation Act, 2013 can be
challenged accordingly with respect to the recommendations and analysis of the existing law in
force. In judging the constitutional validity of the statute, the subsequent events, namely how the
Act has worked itself out, have to be looked into.32
33. Hence, it is persuasively submitted for the Honble Court to look upon the recommendations
made by the 244th Report of the Law Commission of India, which was prepared at the behest of
the Supreme Court of India, to curb the menace of rampant criminalization in politics in the case
of Public Interest Foundation v. Union of India.33 It is pertinent to mention here that the
suggestions made by the 244th Report cited numerous existing reports prepared by various expert
committees, reiterated and suggested the same regarding the disqualification of a Member of
Legislature at the stage of framing of charges.
34. The issue of electoral reforms has been the concern of several previous commissions and
committees. It is hence, pertinent to adduce key findings and recommendations of these bodies.
In the year 1999, Law Commission in its 170th report recommended the addition of Section 8B
in the RPA. This section included certain offences (electoral offences, offences having a bearing
upon the elections viz. S. 153A, 505 of IPC and serious offences punishable by death or life
imprisonment), framing of charges with respect thereto was sufficient to disqualify a person from
contesting elections. The proposed provision further stipulated the disqualification to last for a
period of five years from the framing of charges or till acquittal whichever event happens earlier.
It also recommended mandatory disclosure of such (and other) information with the nomination
paper under Section 4A in the RPA.34 This recommendation has been duly incorporated by
insertion of Section 33A in the RPA with effect from 24 August 2002.
35. The National Commission to Review of the Working of the Constitution (2002) also
maintained the yardstick for disqualification as framing of charges for certain offences viz. those
punishable with maximum imprisonment of five years or more. There were however certain
modifications in its recommendations. Firstly, the Commission proposed that this
disqualification would apply from one year after the date of framing of charges and if not cleared
32

Charan Lal Sahu v. Union of India, (1990) 1 SCC 614 (India) (para 13).
Public Interest Foundation and Ors. v. Union of India and Anr., (2014) 13 SCC 616 (India).
34
244th Law Commission Report, page 23.
33

11

within that period, continue till the conclusion of trial. Secondly, in case the person is convicted
of any offence by a court of law and sentenced to imprisonment of six months or more, the
period of disqualification would apply during the period of sentence and continue for six years
thereafter. Thirdly, in case a person is convicted of heinous offences, it recommended a
permanent bar from contesting any political office. Fourthly, it recommended that Special Courts
be set up at the level of the High Courts (with direct appeal to the Supreme Court) to assess the
legality of charges framed against potential candidates and dispose of the cases in a strict time
frame. Finally, it recommended de-registration and de-recognition of political parties, which
knowingly fielded candidates with criminal antecedents.35
36. Further, the Election Commission of India in pursuance of reforming election law, In August
1997, inter alia mandated filing of affidavits disclosing conviction in cases covered under
Section 8 of the RPA.36 In September 1997, the Commission, in a letter addressed to the Prime
Minister, recommended amendment to Section 8 of RPA, to disqualify any person who is
convicted and sentenced to imprisonment for six months or more, from contesting elections for a
period totaling the sentence imposed plus an additional six years. 37 In 1998, the Commission
reiterated its above suggestion besides recommending that any person against whom charges are
framed for an offence punishable by imprisonment of five years or more should be disqualified.38
37. The ECI admitted that in the eyes of law a person is presumed to be innocent unless proved
guilty; nevertheless it submitted that the Parliament and State Legislatures are apex law-making
bodies and must be composed of persons of integrity and probity who enjoy high reputation in
the eyes of general public, which a person who is accused of a serious offence does not. 39
Further, on the question of disqualification on the ground of corrupt practice, the Commission
supported the continuation of its power to decide the term of disqualification of every accused
person, as uniform criteria cannot be applied to myriad cases of corruption- ranging from petty to
grand corruption.40
35

National Commission to Review of the Working of the Constitution, REPORT OF THE NATIONAL
COMMISSION
TO
REVIEW
THE
WORKING
OF
THE
CONSITUTION,
2002,
http://lawmin.nic.in/ncrwc/finalreport/volume1.htm accessed at September 10, 2015.
36
Ibid page 24.
37
Ibid.
38
Ibid.
39
Ibid.
40
Ibid page 24.

12

38. Further, taking note of the inordinate delays involved in deciding questions of
disqualification on the ground of corrupt practice, the Commission recommended that it should
hold a judicial hearing in this regard immediately after the receipt of the judgment from the High
Court and tender its opinion to the President instead of following the circuitous route as
prevalent then. 41
39. Further recommendations to curb criminalization of politics were made again in the year
2004, wherein the ECI reiterated its earlier view of disqualifying persons from contesting
elections on framing of charges with respect to offences punishable by imprisonment for five
years or more. Such charges, however, must have been framed six months prior to the elections.
It also suggested that persons found guilty by a Commission of Enquiry should also stand
disqualified from contesting elections.42 Further, the Commission suggested streamlining of all
the information to be furnished by way of affidavits in one form by amending Form 26 of the
Conduct of Election Rules, 1961.43 It also recommended the addition of a column for furnishing
the annual detailed income of the candidate for tax purpose and his profession in the said form.44
40. Citing the abovementioned recommendations of various committees, It is appositely
submitted that the issue of disqualification of a member of legislature at the stage of framing of
charges is not outlandish or non-conventional and has been discussed extensively by various
expert groups in conformity.
C.1 LEGAL RATIONALE AND ACCEPTED POSITION ON THE DISQUALIFICATIONS IN SUBJECT
41. At the outset, it must be noted that the existing law suffers from three major problems, viz.
rate of convictions among sitting MPs and MLAs is extremely low, trials of such persons are
subject to long delays, and the law does not provide adequate deterrence to political parties
granting tickets to persons of criminal backgrounds. This has resulted in a massive increase in
the presence of criminal elements in politics, which has catastrophic effects on the countrys
democratic apparatus.
41

Ibid.
Proposed
Electoral
Reforms,
Election
Commission
of
India,
2004,
available
<http://eci.nic.in/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf> assessed on September 10, 2015.
42

43
44

Ibid.
Ibid.

13

at:

42. The foregoing proposition is clearly discerned in regard to the facts that - proportion of
sitting MPs and MLAs facing some form of criminal proceedings is at around 30% - 1,460 out of
4,807 legislators face some kind of criminal charge. By contrast, only 24 out of the 4,807 or
0.5% have been convicted at some point of criminal charges in a court of law.45 Statistics prove
that the rate of conviction involving legislators is quite low which is a deterrent to free and fair
democratic process envisaged as a basic feature of the constitution.46
43. Trials of legislators are prone to inefficacy by virtue of long delays. Delays are further caused
by prolonged absence from court proceedings by influential persons, where the police do not
ensure their presence.47 The issue of delays in trials of influential public personalities has been
recognized and tackled by the Law Commission in its 239th report submitted to the Supreme
Court in the case of Virender Kumar Ohri v. Union of India48. The Supreme Court has also
remarked on this issue in the matter of Ganesh Narayan v. Bangarappa49 that the slow motion
becomes much slower motion when politically powerful or high and influential persons figure as
accused.50 Due to such tactics, delays are deemed to directly relate to low rates of convictions in
the country.
44. Ample evidence on the subject has been gathered from perusal of affidavits submitted by
candidates during elections a sample of twenty affidavits of candidates regarding pending
criminal charges, from the elections to Central Legislature of India (Lok Sabha), 2009, revealed
that over half of these had charges pending for more than six years, some pending for over two
decades.51
45. It is pertinently submitted that the statute in question has patently been unable to tackle the
rampant problem related to criminalization in politics. Hence, the pretentious safeguard against
45

This number represents convictions that does not result in disqualification under Section 8 of the Representation
of the People Act, 1951. Association for Democratic Reforms, Comparison of pending cases and convictions
declared by elected representatives, (2013), availablt at: http://adrindia.org/content/comparison-pending-cases-andconvictions-declared-elected-representatives, accessed on September 4, 2015.
46
Kihoto Hollohan v. Zachillhu and Ors., (1992) 1 SCR 686 (India).
47
Law Commission of India, Expeditious Investigation and Trial of Criminal Cases Against Influential Public
Personalities, Report No.239 (2012), available at: <http://lawcommissionofindia.nic.in/reports/report239.pdf>
accessed February 2nd, 2014.
48
Writ Petition (Civil) No. 341 of 2004 (India).
49
(1995) 4 SCC 41 (India).
50
Ibid para 17.
51
Law
Commission
of
India,
Links
to
Candidate
Affidavits,
available
at:
<http://eci.nic.in/eci_main1/LinktoAffidavits.aspx> accessed August 19th, 2015.

14

convicted criminals acting as representatives, incorporated vide the impugned amendment, is


practically effectively due to the miniscule rate of convictions and a persistently high level of
delay.
46. It shall be observed that with low rates of convictions and high levels of delay in proceedings
has removed the deterrence factor as envisaged in the statute. Given the low levels of convictions
of MPs and MLAs, and the lack of consequences for pending criminal charges, political parties
are not deterred from continuing to hand out party tickets to persons with criminal backgrounds.
The following data suggests that a criminal background, rather than being a disadvantage for a
political career, seems to operate as a benefit. Due analysis of the available data on disclosures,
strongly concludes that candidates charged with a crime have a 2:1 chance of winning an election
as against candidates with no criminal backgrounds.52 This means that political parties liberally
and repeatedly hand out tickets to criminally charged candidates - 74% of candidates with
criminal background have re-contested elections in the last ten years.53
47. It is henceforth, apt to submit that, citing low rates of conviction, high levels of delay and
inadequate deterrent factor, this Honble Court must recommend and direct 54 the Legislature to
subsequently amend the relevant provisions of the statute so as to fulfill the object and purpose
of the act i.e. purity of elections 55 or frame guidelines on which the legislature, in the future can
enact such provisions.
C.1.1 JURISPRUDENCE PERTAINING TO THE STAGE OF FRAMING OF CHARGES
48. The rule of framing of charge finds mention in Section 228 of the Code of Criminal
Procedure (of India), 1973, viz.
(1) If, after such consideration and hearing as aforesaid, the Judge, is of opinion that there is
ground for presuming that the accused has committed an offence which (a) Is not exclusively triable by the Court of Session, he may, frame a charge against the
52

Milan Vaishnav, The Market for Criminality: Money, Muscles and Elections in India (2010) , available at:
<http://casi.sas.upenn.edu/system/files/Market+for+Criminality+-+Aug+2011.pdf> accessed 14 th August 2015.
53
Association for Democratic Reforms, Press Release - Ten Years of Election Watch: Comprehensive Reports on
Elections, Crime and Money (2013) 1, available at: <http://adrindia.org/sites/default/files/Press%20Note%20%20Ten%20Years%20of%20Elections,%20Crime%20and%20Money_0.pdf> accessed 14 January, 2014.
54
PUCL v. UOI, AIR 2003 SC 2363 (India); Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors, (1993)
1 SCR 594 (India).
55
Satya Narain v. Dhuja Ram & Ors, 1974 SCR (3) 20 (India) (para 20).

15

accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and
thereupon the Chief Judicial Magistrate shall try the offence in accordance with the
procedure for the trial of warrant-cases instituted on a police report;
(b) Is exclusively triable by the Court, he shall frame in writing a charge against the
accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be
read and explained to the accused and the accused shall be asked whether he pleads guilty of
the offence charged or claims to be tried.
49. The procedure leading up to the framing of charges, in a nutshell, involves

Filing of either a charge sheet or closure report with the magistrate, after due investigation
of allegations, by the police.56

Upon the filing of the said report, a Magistrate may take cognizance of the offences in the
charge sheet and summon the accused.57

Charges are framed thereafter in accordance with Section 228 of the Code of Criminal
Procedure.

The framing of charges requires the court to look into the evidence presented by the Prosecution
and apply its mind to the question of what offences, if any, the accused should be charged with.
The framing of charges signifies the commencement of a trial. Alternatively, the Judge may hear
arguments on charge and find that no prima facie case against the accused is made out, upon
which the accused is discharged.
50. The only plausible argument against disqualification of members at the stage of framing of
charges is that of breach of principles of natural justice. Indian criminal jurisprudence embraces
and preserves the principle of innocent until proven guilty. Hence, the submissions hitherto may
be countered - given that disqualifying a member at this stage of prosecution will deprive the
accused of his statutory right to be a member of the legislature, without even being convicted.
51. The LC has cogently rebuts the said counter by citing a Supreme Court judgment, which
reads that "Section 228 of Code of Criminal Procedure requires an application of judicial mind
56
57

CODE CRIM. PROC. Section 173.


CODE CRIM. PROC.Section 190.

16

to determine whether there are sufficient grounds for proceeding against the accused."58 Other
relevant Supreme Court Judgments regarding the said procedural aspect elucidate that the
purpose of a charge in a criminal trial is to give precise information to the accused about the
accusation against him. A charge serves as notice to the accused, drawn up in precise and
unambiguous legal language, of the nature of the accusation the accused has to answer to in
trial.59The charges should contain all particular details with respect to the manner, time, place,
and persons against whom it was committed etc.60
52. The said section falls under Chapter XVII of the Code of Criminal Procedure, 1973. This part
deals with charges and requires precise framing of charges as evidenced by several provisions
under this chapter. Framing of charges is equivalent to a statement that every legal condition
required by law to constitute the offence charged was fulfilled in the particular case.61 Further,
the words describing a charge should be interpreted in the sense attached to them respectively by
the law under which such offence is punishable. 62 The charges should also contain all particular
details with respect to the manner, time, place, persons against whom it was committed etc. 63
Therefore, the sections construed conjointly prove that the framing of charges is a significant
judicial step involving sufficient application of judicial mind.
53. Moreover, the burden of proof at this stage is on the prosecution who must establish a prima
facie case where the evidence on record raises grave suspicion.64 Together, these tests offer
more than commensurate protection against possibly false and frivolous charges.
C.2 PRESERVATION OF RIGHTS AND PRINCIPLES OF NATURAL JUSTICE
54. The Law Commission of India in its 244 th Report has adequately justified that disqualifying a
member at the stage of framing of charges, i.e. before the actual conviction, is not violative of the
Principle of Presumption of Innocence. The Supreme Court of India has consistently upheld and
maintained exceptions to the said principle in several rulings. One of which explicate - A legal
58

K.P. Raghavan v. M.H. Abbas, AIR 1967 SC 740 (India);. 1967 CriLJ 653 (India).
V.C. Shukla v. State through CBI, 1980 Cri LJ 690, 732 (India) (para 120).
60
CODE CRIM. PROC. Sections 211, 212, and 213.
61
CODE CRIM. PROC. Sec. 211 (5).
62
CODE CRIM. PROC. Sec. 214.
63
CODE CRIM. PROC. Sec. 211, 212, 213.
64
State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 (India) (para 11).
59

17

provision does not become unconstitutional only because it provides for a reverse burden. The
question as regards burden of proof is procedural in nature.65
55. Vide judgment in Alimuddin v. King Emperor66, it was opined that limited inroad on
presumption of innocence is permitted. The doctrine of res ipsa loquitur providing for a reverse
burden has been applied not only in civil proceedings but also in criminal proceedings. In Home
v. Dorset Yacht Company67, House of Lords developed the common law principle and evolved a
presumptive duty to care.68
56. The Law Commissions justification, pertaining to Representation of People Act, 1951, in
this regard is quite expansive and appropriate. It is hence, apposite to quote from the same that
-Though there is a view that the accused has limited rights at the stage of framing of charge, the
legal options available to him are fairly substantial. As the previous section shows, the stage of
framing of charges involves considerable application of judicial mind, gives the accused an
opportunity to be heard, places the burden of proof on the prosecution to demonstrate a prima
facie case and will lead to discharge unless the grounds pleaded are sufficient for the matter to
proceed to trial. Thus it is not as if the accused has no remedy till charges are framedon the
contrary, he has several legal options available to him prior to this stage.
57. Finally, though criminal jurisprudence presumes a man innocent till proven otherwise,
disqualifying a person from contesting elections at the stage of framing of charges does not fall
foul of this proposition. Such a provision has no bearing on whether indeed the person
concerned is guilty of the alleged offence or not. On the contrary, it represents a distinct legal
determination of the types of persons who are suitable for holding representative public office in
India. Given the proliferation of criminal elements in Parliament and State Assemblies, it is
indicative of a public resolve to correct this situation. Further, the existing provisions, which
disqualify persons on conviction alone, have been unable to achieve this task.
58. Thus it is now strongly felt that it is essential to disqualify those persons who have had
criminal charges framed against them by a court of competent jurisdiction, subject to certain
65

Hiten P. Dalal v. Bratindranath Banerjee, 2001 CriLJ 4647 (India), M.S. Narayana Menon v. State of Kerala, 2006
CriLJ 4607 (India).
66
1945 Nagpur Law Journal 300.
67
1970 (2) ALL E.R. 294 (India).
68
Noor Aga v. State of Punjab and ors. (2008)16SCC417 (India) .

18

safeguards, from contesting in elections. Such a determination of suitability for representative


office has no bearing on his guilt or innocence, which can, and will, only be judged at the
criminal trial. To conflate the two and thereby argue that the suggested reform is
jurisprudentially flawed would be to make a category mistake.69
59. It can hence, be safely conclude that the stage framing of charges is simply not a mechanical
step in the trial process, but one that requires a preliminary level of judicial scrutiny. The
provisions in the Code of Criminal Procedure require adequate consideration of the merits of a
criminal charge before charges are framed by the Court. The level of scrutiny required before
charges are framed is sufficient to prevent misuse of any provision resulting in disqualification
from contesting elections.
60. Moreover enlarging the scope of disqualifications to include the stage of framing of charges
in certain offences does not infringe upon any Fundamental or Constitutional right of the
candidate. RPA creates and regulates the right to contest and be elected as a Member of
Parliament or a State Legislature. From the early years of our democracy, it has been repeatedly
stressed by the Supreme Court that the right to be elected is neither a fundamental nor a common
law right.70 It is a special right created by the statute and can only be exercised on the conditions
laid down by the statute.71Therefore, it is not subject to the Fundamental Rights chapter of the
constitution.72
C.3 RECOMMENDATIONS OF THE 244TH LAW COMMISSION REPORT
61. The Law Commission has observed that disqualification upon conviction has proved to be
incapable of curbing the growing criminalization of politics, owing to long delays in trials and
rare convictions. The law needs to evolve to pose an effective deterrence, and to prevent
subversion of the process of justice. As discussed previously, The LC meticulously deliberated
upon and culled out various stages of criminal investigation and litigation procedure, for
feasibility of operation of disqualification. The consequent stages of filing of the police report
69

244th Law Commission Report, 36-37.


N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR (India).
71
Jumuna Prasad Mukhariya v. Lachhi Ram, AIR 1954 SC 686 (India).
72
Jagdev Singh Sidhanti v.Pratap Singh Daulta, AIR 1965 SC 183 (India); Smt. Indira Nehru Gandhi v. Shri Raj
Narain, AIR 1975 SC 2299 (India); Ebrahim Sulaiman Sait v. M. C. Muhammad, AIR 1980 SC 354 (India), (1980) 1
SCR 1148 (India).
70

19

Under Section 173 of the Code of Criminal Procedure, and that of cognizance of the same, taken
by a competent magistrate were perceptively ruled out for the purpose of electoral
disqualifications owing to the lack of sufficient application of judicial mind at this stage.73
62. The LC hence, acutely recommended that the stage of framing of charges 74 is appropriate for
purpose of electoral disqualifications, by virtue of an adequate level of judicial scrutiny of the
matter; fair opportunity to the accused to make representations; and sufficient application of
judicial mind.75 It must be noted that the LC was conversant with potential counters to
disqualification at the stage of framing charges, in suggesting legal safeguards to prevent misuse
or vendetta, has significant potential in curbing the spread of criminalization of politics.
63. Having regard to the above, the LC prescribed the following safeguards to be incorporated
vis--vis electoral disqualifications:
(i) Only those offences, which have a maximum punishment of five years or above, ought to be
included within the remit of this provision.
(ii) Charges filed up to one year before the date of scrutiny of nominations for an election shall
not lead to disqualification.
(iii) The disqualification shall operate till an acquittal by the trial court, or for a period of six
years, whichever is earlier.
(iv) For charges framed against sitting MPs/MLAs, the trials must be expedited so that they are
conducted on a day-to-day basis and concluded within a period of one year. However, in case
the trial is not concluded within the said period, one of the following consequences shall ensue:

The MP/MLA may be disqualified at the expiry of the one year period, or

The MP/MLA's right to vote in the House as a member, remuneration and other perquisites
attaching to their office shall be suspended at the expiry of the one year period.

64. With due regard to the so mentioned facts and legal provisions and precedents, it is reverently
submitted that a disqualification can validly operate at the procedural stage of framing of
73

244th Law Commission Report, 31 of 244.


CODE CRIM. PROC. Section 228.
75
Supra note 59.
74

20

charges, without prejudice to inter alia, Presumption of Innocence, envisaged within the Principle
of Natural Justice; any right, fundamental or otherwise; and any other Constitutional Provision.
Hence, The court is persuaded to accept and further implementation of the sought
recommendations of the Law Commission vide 244th Report in pursuance of the legislative intent
in play viz. decriminalization of politics.

(D) THE IMPUGNED AMENDMENT AND VALIDATION ACT, 2013 IS CONSTITUTIONALLY


INVALID

65. This chapter intends to cover every aspect in appendage to the aforementioned submissions,
that renders the impugned Amendment and Validation Act, invalid in the face of Constitutional
and other legal mandates. At the outset, it shall be considered that the nature of operation and
applicability of the impugned amendment to Section 62(5) of the Representation of The Citizens
Act, 1951 is in manifest contrast with that of the said section, prior to the amendment.
66. Such a proposition, with respect to logical precision, flows from the constitutional congruity
of the said section, acknowledged by the Supreme Court of India, that 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 peoples' representatives and there is no
arbitrariness or discrimination involved.76 The validity of the impugned amendment can hence,
be assailed on counts mentioned hereinafter.
D.1 BREACH OF RIGHT TO EQUALITY AS ENVISAGED UNDER ARTICLE 14 OF THE
CONSTITUTION
67. As for the parameters established for determination of invalidity of any impugned State
action vis--vis Article 14, the Court must be satisfied:

76

Supra note 6.

21

(i) That the classification is not founded on an intelligible differentia, which distinguishes those
that are grouped together from others,
(ii) That differentia does not have a rational relation or a reasonable nexus to the object sought
to be achieved by the Act.77
68. The law has been neatly and succinctly summarized in Ram Krishna Dalmia v. Sri Justice S.
R. Tendolkar78, thus: "It is now well established that while Article 14 forbids class legislation, it
does not forbid reasonable classification for the purposes of legislation It is also well
established, that Article 14 condemns discrimination not only by a substantive law but also by a
law of procedure".79
69. Further, The Supreme Court of India, in the recent matter of Dr. Subramanian Swamy v.
CBI80, while deliberating upon the validity of Section 6A of the Prevention of Corruption Act,
1988, at the altar of various constitutional mandates, rightly struck down the said section as
invalid, in as much as it attempted a discriminatory classification among bureaucrats, without
any rational nexus with objects sought by the governing Prevention of Corruption Act and hence,
was violative of the principles of equality enshrined in Article 14 of the Constitution.81
70. The impugned amendment to Section 62(5) of the impugned Act is prominently violative
of Article 14 by virtue of the fact that the same creates a privileged class and thereby subverts the
normal investigative process and violates the fundamental rights under Article 14 of every
citizen. The said Amendment creates two classes of persons who have been confined in jail
whereby one class is totally restricted from voting whereas the other, which is the privileged
class, is given the right to contest elections. Such a classification is not based on intelligible
differentia, since both classes of person broadly seek to participate in the democratic process of
election of representatives to various legislatures.
71. Further, such a discriminatory classification is sans reasonable nexus with the object sought
to be achieved by the governing Representation of the Citizens Act, 1951. There is obvious and
77

State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 1631 (India).
AIR 1958 SC 538 (India).
79
Ibid para 11.
80
Dr. Subramanian Swamy v. Director, Central Bureau of Investigation and Anr, (2014) 8 SCC 682 (India).
81
Ibid para 45.
78

22

clear class discrimination by conferring privileges upon persons arbitrarily selected out of a large
number of other persons similarly situated in relation to the classification for the purpose of
legislation. The classification that has been done in the impugned Amendment undermines the
object of clean politics.
72. The discrimination that has been made in the instant case is unacceptable, as it does not have
a reasonable nexus with the object that is sought to be achieved by the statute. There is a clear
violation of Article 14 since a particular class of citizens is still being barred from voting whereas
another class i.e. the privileged class has the right to contest elections at the same time. The
classification that has been made in the present case is totally unreasonable82.
D.1.1 THE IMPUGNED AMENDMENT VIOLATES RULE OF LAW
73. The constitutional principal of equality is inherent in the rule of law, which is satisfied when
laws are applied or enforced equally, even-handedly and without irrational distinction. The very
purpose of rule of law is the protection of individuals against arbitrary exercise of power,
wherever it is found83. The concept of equality allows differential treatment84 but it prevents
distinctions that are not properly justified. The distinction that has been made by the creation of
the privileged class of voters is perverse to the rule of law and therefore contravenes
Article 14 of the Constitution.
74. From a positivistic point of view, equality is antithetic to arbitrariness 85. In fact equality and
arbitrariness are sworn enemies, one belongs to the rule of law in a republic, while the other, to
the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it
is unequal both according to political logic and constitutional law and is therefore violative of
Article 14. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. It is equally important that interested or influential persons are not able to misdirect or
highjack the investigation so as to throttle a fair investigation resulting in the offenders escaping
the punitive course of law. These are important facets of rule of law. Section 62(5) fails in the
context of these facets of Article 14.
82

The Ratlam Bone And Fertilizer Co. v. The State of Madhya Pradesh, 1975 35 STC 132 MP (India).
Raman Dayaram Shetty v. International Airport Authority of India, 1979 AIR 1628 (India).
84
The State v. Keshab Chandra Naskar, AIR1962 Cal 338 (India).
85
E.P. Royappa v. State of Tamil Nadu, (1974) ILLJ 172 SC (India).
83

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75. The position is well settled that rule of law is a facet of equality under Article 14 and breach
of rule of law amounts to breach of equality under Article 14 and, therefore, breach of rule of law
may be a ground for invalidating the legislation being in negation of Article 14. The principle of
reasonableness, which legally as well as philosophically, is an essential element of equality or
non-arbitrariness pervades Article 14 and the procedure contemplated by Article 21 must answer
the test of reasonableness in order to be in conformity with Article 14. It must be "right and just
and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and
the requirement of Article 21 would not be satisfied. The Government cannot act arbitrarily at its
sweet will and, like a private individual, deal with any person it pleases, but its action must be in
conformity with standard or norm which is not arbitrary, irrational or irrelevant. Unless it can be
shown by the Government that the departure was not arbitrary, but was based on some valid
principle which in itself was non-irrational, unreasonable or discriminatory86.
D.2 BREACH OF RIGHT TO LIFE AS ENVISAGED UNDER ARTICLE 21 OF THE CONSTITUTION
76. Vide the landmark decision in the matter of PUCL v. UOI87, the Learned Supreme Court of
India discerned Right of Privacy from Article 21 by interpreting it in conformity with Article 12
of the Universal Declaration on Human Rights and Article 17 of the International Covenant on
Civil and Political Rights, 1966. Both of these international documents provide for the right of
privacy; India is a signatory to both and they do not go contrary to Indian municipal law. The
same rationale appositely applies with political freedom to elect a clean representative as it can
be corroborated with the Political Rights as enshrined under International Covenant on Civil and
Political Rights, 196688 and United Nations Convention Against Corruption.
77. A learned 3-judge bench of the Supreme Court, in Chameli Singh v. State of Uttar Pradesh 89,
observed that In any organized society, right to live as a human being is not ensured by meeting
only the animal needs of man. It is secured only when he is assured of all facilities to develop

Erusian Equipment and Chemicals Ltd. v. State of West Bengal, 1975 AIR 266 (India).
Peoples Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 (India).
88
Preamble: Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free
human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and
cultural rights,
89
(1996) 2 SCC 549 (India).
86
87

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himself and is freed from restrictions which inhibit his growth. All human rights are designed to
achieve this object.90
78. Cognizant and responsive to the erratic vagaries of social and legal complications vis-a-vis
rights and lives of the populace, Honble Supreme Court has interpreted Article 21 in a very
creative manner to improve the quality of life and to imply a bundle of rights for the people. For
instance, In CERC v. UOI91, the Supreme Court, while expanding the connotation of life to
include tradition and cultural heritage of the persons concerned, observed that the Right to Life
with human dignity encompasses within its fold, some of the finer facets of human civilization
which makes life worth living.92
79. These meaningful aspects of life could be liberally constructed with relation to Democratic
process, which is a basic structure of the constitution and free and fair elections are basic features
to the constitution.93 A better approach towards the enhancement and upliftment of Democratic
Principles will truly reflect affirmatively in favor of principles of social justice and welfare state
as envisaged in the Constitution of India.
80. Electoral process is the cornerstone of every Democratic country and the contesting
candidates, who later become representatives, are the ones, which truly reflect the spirit of the
Democracy as enshrined in our constitution. But while acknowledging the achievements of a
contestant, one easily ignores the voter, who by exercising his right to vote to elect his
representative expects his representative to reciprocate and guarantee him his right of
accountability.
81. The democratic process in India, though boasts itself of being the largest in the world, has
suffered miserably at the hands of rampant lethargy shown towards the purity of the elections.
The rampant criminalization in political framework has reduced the voters choices, with stark
statistics in support.94 The voters right to vote for a clean candidate is vitiated by corrupt
influence upon the democratic procedure. The perception of voters towards electoral procedure
90

Ibid para 8.
Consumer Education and Research Center and Ors v. Union of India and Ors., (1995) 3 SCC 42 (India).
92
Ibid para 22.
93
Kihoto Hollohan v. Zachillu, 1992 SCR (1) 686 (India).
94
Analysis of 62,847 self-declared affidavits of candidates, covering all Assembly and Lok Sabha elections since
2004, including bye elections, shows that 11,030 (18%) had 27,027 pending criminal cases against them while 5,253
(8%) candidates had 13,984 serious criminal charges.
91

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has become suspicious. The rampant bribery of voters in elections has become a common
practice.95 Such corrupt practices lead to entry of criminal element into the democratic setup who
eventually represent the country and formulate legal framework.
82. The Honble Supreme Court has repeatedly cautioned against such a practice, and has
postulated, Those who break the law should not make the law.96 It is imperative to note that the
loss of faith in democracy is injurious to the very concept of Welfare State as envisaged in the
Constitution.97 The nation cant grow and evolve ideally without a corruption and criminal free
political setup.
83. In the recent past several Commissions have been set up to examine the issue of electoral and
political reforms. They include the Goswami Committee on Electoral Reforms (1990), the Vohra
Committee Report (1993), Indrajit Gupta Committee on State Funding of Elections (1998), Law
Commission Report on Reform of the Electoral Laws (1999), National Commission to Review
the Working of the Constitution (2001), Election Commission of India Proposed Electoral
Reforms (2004), and The Second Administrative Reforms Commission (2008) and a recent Law
Commission Report on Electoral Disqualifications (2014). All these expert committees have
repeatedly exposed the rampant criminalization in political framework and have also suggested
various curative mechanisms, which if implemented effectively could preserve the Democracy
and its spirit.
84. Citing the abovementioned instances, it is pertinent to note that the way impugned
Amendment and Validation Act, 2013 has been enacted, it negates all the hopes of preservation
of democratic principles ignited through the ground breaking decisions of the Honble SC in Lily
Thomas98 and Jan Chaukidar99. Hence in furtherance of the constitutional zeal towards
attainment of an egalitarian and welfare society, it must be accepted by this court that the
impugned amendment and validation act is an infringement upon the citizens right to life.

95

TRILOCHAN SHASTRY, TOWARDS THE DE-CRIMINALIZATION OF ELECTIONS AND POLITICS, 13.


K.Prabhakaran v. P.Jayaram, (2005) 1 SCC 754 (India) (para 54).
97
INDIA CONST. art 38(1).
98
Lily Thomas v. Union of India, (2013) 7 SCC 653 (India).
99
Chief Election Commissioner v Jan Chaukidar (Peoples Watch) and Ors, (2013) 7 SCC 507 (India).
96

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85. It is thus pertinent to note that the impugned Amendment and Validation Act, 2013, violates
Rule of Law, both in context of Article 14 by virtue of it being arbitrary and negating equality
and equal application of law on all persons subject to such law; as well as in context of arbitrarily
and deceptively over-ruling the judicial pronouncement of the Supreme Court of Lindiya to serve
the vested interests of criminal and corrupt politicians vide foregoing arguments. This in turn
goes contrary to even the Basic Structure of the Constitution sought to be preserved and secured,
if need be, by way of Judicial Review.100
D.3 EXPRESS VIOLATION OF PROVISIONS OF THE CONSTITUTION
86. The Legislature, vide impugned Amendment and Validation Act has tinkered with Section 7
of the Representation of The Citizens Act, 1951, accordingly - In the Representation of the
Citizens Act, 1951 (hereinafter referred to as the principal Act), in section 7, in clause (b), after
the words "or Legislative Council of a State", the words "under the provisions of this Chapter,
and on no other ground" shall be inserted.101
87. The Legislature, through this amendment has excluded the incumbent disqualifications upon
the members of legislature by virtue of constitutional provisions viz. explicit disqualifications
mentioned in sub-clauses (a), (b), (c) and (d) of clause (1) of Article 102 of the Constitution, and
those dealing with Office of Profit102 and Anti-Defection Laws103.
88. It is submitted that by virtue of Article 245(1) the legislative power of the Parliament has
been specifically made subject to the provisions of the Constitution and the Indian Parliament is
a creation of the Constitution, therefore a Parliamentary Law to be valid must in its entirety
conform to the Constitution. It is hereby submitted that the entire scheme of the Constitution is
such that it ensures the sovereignty and integrity of the country as a republic and the democratic
way of life by parliamentary institutions based on free and fair elections.104
89. The legislature, by amending Section 7 of the RP Act, adding the words under the
provisions of this chapter and on no other ground, has encroached upon the Constitutional
100

His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr, (1973) 4 SCC 225 (India).
Moot Problem Exhibit 2.
102
INDIA CONST. art 102(1)(a).
103
INDIA CONST. X Schedule.
104
PUCL v. UOI, (2003) 4 SCC 399 (India).
101

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limitations dealing with Disqualification of a Member of Legislature by virtue of holding an


Office of Profit, Anti-Defection Laws, and those enumerated under the former clauses of Article
102 of the Constitution.
90. Arguendo, if the Honble Court, in consideration of presumption of constitutionality of the
impugned act, feels reluctant to quash the said arbitrary state action, the impugned amendment is
still liable to be read down in conformity with Constitutional Provisions, so as to nullify the
absurd consequences of such amendment,105 whereby, a person barred from participating in the
democratic process of elections, which forms a part of basic structure of a democratic
constitution, is yet allowed to circumvent the bar and permitted to take part in the same with
complete disregard to logic and objectives of the governing act i.e. The Representation of The
Citizens Act, 2013. It is hence reverently submitted that the impugned Amendment and
Validation Act, 2013 is in clear violation of the letter, spirit and mandate of the Constitution of
Lindiya. The said Legislative Action, by virtue of the foregoing analysis, is liable to be struck
down and such abuse of legislative power to serve vested criminal interest shall be reproached.

PRAYER FOR RELIEF

105

Karnataka Housing Board v. C. Muddaiah, (2007) 7 SCC 689 (India) (para 22); Zile Singh v. State of Haryana,
(2004) 8 SCC 1 (India).

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Wherefore, in the light of the above, it is most humbly prayed before this Honble Supreme
Court of Lindiya that it may be pleased to:

Hold the Public Interest Litigation, maintainable;

Strike down the Lindiyan Representation of The Citizens (Amendment and Validation)
Act, 2013 by virtue of it being unconstitutional and hence, invalid; and

Alternative, read down the impugned Amendment and Validation Act in conformity with
the Constitutional Mandate, so as to nullify the absurdity emanating from the same.

And further, grant any other relief or pass any other order, which the Honble Court may deem,
fit in the ends of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

Place: Lindiya

Sd/-___________
Counsels for the Respondent No.1

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