TEAM NO:

BEFORE THE HONBLE SUPREME COURT OF LINDIYA

PIL NO. ___/2014

IN THE MATTER OF

Peoples Upliftment Organization & Anr

(Petitioners)

v.

Union of Lindiya

(Respondent)

MEMORANDUM FOR THE PETITIONERS

7TH RLC SAQUIB RIZVI MEMORIAL NATIONAL MOOT COURT COMPETITION

TABLE OF CONTENTS

TABLE OF CONTENTS

INDEX OF AUTHORITIES.(ii)-(iii)

STATEMENT OF JURISDICTION..(iv)

STATEMENT OF FACTS...........(v)-(vii)

STATEMENT OF ISSUES...(viii)

SUMMARY OF ARGUMENTS..(ix)

ARGUMENTS ADVANCED ...(1)-(19)

1. That the PIL filed in the Honble Supreme Court is maintainable....(1)-(5)

1.1. That the Amendment violates Fundamental rights.(1)-(3)
1.2. That the Amendment encroaches upon the jurisdiction of the Court..(3)-(5)
1.3. That the Amendment has been passed with an ulterior motive.(5)

2. That Amendment and Validation Act, 2013 is violative of part III of the Constitution(6)-(15)
2.1. That the Amendment is violative of Article 19 (1) (a) ...(6)-(8)
2.2. That the Amendment is violative of Article 14 (8)-(12)
2.3. That the Amendment is violative of Article 31 (1) (13)
2.4. That the Amendment is violative of Article 21 ..(14)
2.5. That the Amendment is violative of Article 13(2). (14)-(15)

3. That the Amendment and Validation Act, 2013 is Constitutionally invalid.(16)-(17)

4. That the impugned Amendment and Validation Act, 2013 should be struck down.(18)-(19)

PRAYER..(x)

i
INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Cases cited

1. A.K. Gopalan v. State of Madras AIR 2001 SC 3215

2. Air India Statutory Corporation v. United Labour Union & Ors AIR 1997 SC 645
3. Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
4. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Ors 1995 (5) SCC 457
5. Chandra Pradhan, Advocate, Supreme Court v. Union of India & Ors. (1997) 6 SCC 1
6. Chief Election Commissioner and Anr. v. Jan Chaukidar (peoples watch) and others
(2013) 3 SCC 590
7. Chiranjeet Lal Chowdhuri v. Union of India AIR 1951 SC 41

8. Director General, Directorate General Of Doordarshan v. Anand Patwardhan

AIR 2006 SC 3346
9. Dist. Registrar and Collector v. Canara Bank AIR 2005 SC186
10. Golak Nath v. State of Punjab AIR 1967 SC 1643
11. Hinch Lal Tiwari v. Kamla Devi AIR 1950 SC 27
12. Hindi Hitrakshak Samiti and others v. Union of India and others AIR1990 SC 851
13. I.R. Coelho (Dead) By Lrs v. State Of Tamil Nadu & Ors AIR 2007 SC 861
14. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
15. Kedar Nath Singh v. State of Bihar AIR 1962 SC1091
16. Keshavananda Bharti Sripadgalvaru v. State of Kerala AIR 1973 SC 1461
17. Life Insurance Corporation of India and Union of India and another v. Prof. Manubhai D.
Shah and Cinemart Foundation AIR 1993 SC 171
18. M. Nagaraj v. Union of India (2006) 8 SCC 212
19. M.C. Mehta v. Union of India AIR 1989 SC 1086
20. Madhav Hayawadanrao Hoskot v. State of Maharashtra AIR 1978 SC 1548
21. Maneka Gandhi v. Union of India AIR 1978 SC 597
22. Manoj Narula v. Union of India (2014) 9 SCC 1
23. Minerva Mills v. Union of India AIR 1980 SC 1789
24. Peoples Union for Civil Liberties and another v. Union of India and another
(2013) 10 SCC 1

ii
INDEX OF AUTHORITIES

25. Ragubir Singh v. Court of Wards AIR 1953 SC373

26. Ramesh Yashwant Praboo (Dr.) v. Prabhakar Kashinath Kunte AIR 1996 SC 1113
27. Romesh Thappar v. State of Madras AIR 1950 SC 124
28. S.C. Advocates on Record Association v. Union of India AIR 1994 SC 268
29. Sambamurthy v. Union of India AIR 1987 SC 66
30. Secretary, State of Karnataka and Others v. Umadevi and Others AIR 2006 SC 1806
31. Supdt. Central Prison, Fatehgarh v. Ram Manohar AIR 1960 SC 633
32. Union of India v. K.M. Shankarappa AIR 2000 SC 3678
33. Union Of India v. Kantilal Hematram Pandya AIR 1995 SC 1349
34. Vineet Narayan v. Union of India AIR 1998 SC 889
35. Vishaka v. State of Rajasthan (1997) SCC 241

Abbreviations
1. Para
2. Section
3. AIR All India Reporter
4. Anr. Another
5. ed Edition
6. Honble Honourable
7. LDP Lindiyan Democratic Party
8. LPP Lindiyan Peoples Party
9. NGO Non Governmental Organisation
10. No. Number
11. P. Page
12. SC Supreme Court
13. SCC Supreme Court Cases
14. v. Versus

iii
STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The petitioner approaches the Honble Supreme Court of Lindiya by way of a Mandamus Writ
petition under Article 32 of the Constitution of Lindiya.

iv
STATEMENT OF FACTS

STATEMENT OF FACTS

Lindiya is a country situated in the Lindiyan subcontinent. It is a nation with glorious heritage
and is the birthplace of Brogmoidism, Chantry, Chrislam and Einhasad. Some 85% of
Lindiyans are Brogmoidist, 14% Fargoist, and the rest follow Chrislam, Einhasad, Notchist
and Chantry. Lindiya, a highly populated country gained its freedom in 1945. The driving
force behind the independence was Lindiyan Development Party.

Sadly a month after Lindiya attained freedom, the country split into two. A new state called
Bakel came into existence which consisted of mainly of followers of Fargoism. It is rumored
that the spilt was a result of a conflict within the LDP with regards the ministerial candidate.
As a result to this Lindiya saw communal riots. The Brogmoidism- Fargoism conflict on
August 25th 1947 reached to a flash point that a communal riot so broke out that 5000 were
left dead, 20,000 mortally injured and 100,000 homeless. Since the riot the relationship of
followers of Brogmoidism and Fargoism has been used by politicians to gain political
mileage despite the existence of specific provisions of law to prevent this.

In the last 68 years Lindiya has developed to be an industrialized, developing country due to
the bold decisions and leadership. The LDP has held office for some 34 years out of 68 years.
The rest of the years were ruled by the opposition LPP. Lindiya developed significantly under
the rule of both. Lindiya once considered a stagnant nation is now growing at an impressive
and rapid pace.

From the year 1995 onwards, Lindiya has been rocked by a series of scams both small and
big involving political figures from various parties. These scams have damaged the countrys
image and shocked the nation.

Mr. Ranjeet Thadani, the leader of LDP came from one of the wealthiest families in Lindiya.
His ancestors are regarded as the founding fathers of the nation for their invaluable efforts
during the struggle for freedom. Mr. Thadani was a strong advocate of clean politics and
believed Lindiya could truly progress only if corruption was completely rooted out from its
system.

The LDP formed the central government from 1990-2000. Despite making commendable
development in the various fields LDP lost public trust. When the elections were held in
2000, LPP came to power as a result of their campaigning and the publics disaffection

v
STATEMENT OF FACTS

towards the LDPs leaders. Notwithstanding the loss of reputation that the LDP suffered Mr.
Thadani was still considered to be a man of high integrity who was beyond reproach.

With elections drawing closer in June 2005, the role of Media increased as it reported each
and every political happening and subsequent remarks on the same. On 20th May 2005, Mr.
Thadani was invited by star of Lindiya channel along with Mr. Yashwant Angre (leader of
LPP) and Mr. Shekhar Verma (senior leader of LPP.) The discussion turned ugly when Mr.
Verma accused the Thadanis family of being the reason behind Lindiyas split in 1945. Mr.
Thadani responded to this by stating

There is something very unhealthy about the followers of Fargoism. These people have been
motivated by their religious needs several times, even to the extent of it being detrimental to
the entire nation. This was seen in 1947 when the riots destroyed 125000 lives but we had to
pay the ultimate price in 1945 when a large number of Fargoismic followers irreparable
harmed Lindiya and prioritized their religion. My family had nothing to do with it.

The next day saw large scale protest in the country against Mr. Thadani. Weeks passed and
the havoc didnt subside. Mr. Thadani tendered a public apology for his statement and also
added he was not trying to insult any religion rather he was providing the account of what
had happened. He was charged with 153 A (b) and section 295A of the Lindiyan Penal Code.
In the case of state of Baharashtra vs Ranjeet Thadani the Sessions Court on 20th September
2007 sentenced 7 years of imprisonment. This was later overturned by the High Court.

By 2010, Lindiya was looked upon by all the developing countries around the world for the
progress it had made. Lindiya had made full use of nuclear power for both peaceful as well as
military purposes. Though it seemed as if LPP was doing good it was becoming lesser
popular among its people.

In 2010 the LDP returned to power with a majority. Among the cabinet ministers, some had
prior criminal records and some were facing trail under the Prevention Of corruption act
1988. The situation began to change when Mr. Thadani was released and he started to work
against corruption

It was rumored that Mr. Thadani would be LDPs prime ministerial candidate for 2015. His
work towards anti corruption was very noticeable yet the desired result of corruption free
politics was far from being achieved. On 10th July 2013 a landmark Supreme Court judgment
was delivered whereby citizens who were convicted of certain offences could no longer stand

vi
STATEMENT OF FACTS

for elections. The government quickly amended the Lindiyan Representation of the Citizens
Act to bring increasing its ambit enough to reverse the judgment of the Supreme Court. The
said Amendment was approved by the President of Lindiya.

An NGO called the Peoples Upliftment Organization a organization working towards clean
politics was out raged by the number of politician who were convicted for offences pertinent
to religion under the Lindiyan Penal Code who were contesting elections. The LPPs
campaign began to shift from their developmental plans to the necessity of clean politics.
During one of his speeches Mr. Angre said: Those who govern this nation must do so with
clean hands. Mr. Thadani responded to this statement during one of his speeches by stating
Part III of our constitution is sacred and it bestows upon the people of this nation
fundamental rights which cannot be violated. A test of reasonableness must be applied before
incarcerating some ones freedom. On 10th December 2014 Peoples Upliftment
Organization along with Mr. Angre the filed a PIL before the Supreme Court of Lindiya to
strike down the amendment.

vii
STATEMENT OF ISSUES

STATEMENT OF ISSUES

1. That the PIL filed in the Honble Supreme Court is maintainable.

2. That the Amendment and Validation Act, 2013 is violative of part III of the Constitution.

3. That the Amendment and Validation Act, 2013 is Constitutionally invalid

4. That the impugned Amendment and Validation Act, 2013 should be struck down.

viii
SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

1. That the PIL filed in the Honble Supreme Court is maintainable.

The PIL has been filed by a Public spirited NGO, Peoples Upliftment Organisation for
the rescue of Fundamental rights which are in peril due to the Amendment and
Validation Act, 2013 passed by the parliament. The Amendment also encroaches on
the jurisdiction of the Honble Supreme Court.

2. That the Amendment and Validation Act, 2013 is violative of part III of the
Constitution.
The Amendment and Validation Act, 2013 encroaches upon the Fundamental rights
the Constitution has bestowed upon its citizens. Right against with laws inconsistent
with or in derogation of the fundamental rights, Right to equality, Right to freedom of
speech and expression, Right to life and liberty and Right to Constitutional Remedies.

3. That the Amendment and Validation Act, 2013 is constitutionally invalid.

Article 13 limits the power of the Parliament to erode any fundamental rights
bestowed in the people. The Amendment and Validation Act, 2013 abrogates these
rights and is hence constitutionally invalid.

4. That the impugned Amendment and Validation Act, 2013 should be struck
down.
The Amendment and Validation Act, 2013 has been passed with an ulterior motive of
benefitting candidates of LDP, in mind. It encroaches upon the jurisdiction of the
Courts and is repugnant to the basic structure and the faith in fundamental rights.
Hence, the Amendment should be struck down.

ix
ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

Contention I: That the PIL filed in the Honble Supreme Court is maintainable.

The present PIL pending before the Honble Supreme Court of Lindiya is maintainable
because it is violative of Article 13(2) which declares laws inconsistent with or in derogation
of the fundamental rights null and void, Article 14 Right to Equality before law. Article 19(a)
right to freedom of speech and expression, Article 21 right to life and personal liberty,
Articles 32(1): right to move to the Supreme Court for enforcement of the Fundamental
Rights, Article 50 section of Judiciary from Executive and Article 141 power of the Supreme
Court to make its judgement binding on the lower courts.

1.1.THAT THE AMENDMENT VIOLATES FUNDAMENTAL RIGHTS

The Amendment made in the Representation of People Act, 1951 is violative of Article 13 (2)
which declares laws inconsistent with or in derogation of the fundamental rights null and
void, by virtue of it being violative of Article 14, 19(a), 21 and 32(2).

Moreover, the PIL is a shield upheld to protect equality before law. The law should recognise
the difference between law abiding citizens and lawless citizens and they should be treated
accordingly. The amendment fails to uphold the principle of equal protection of law by
measuring the rebellious and the obedient with the same yardstick. Article 14 of the
Constitution provides for rights against such an inequality. In Chiranjeet Lal Chowdhuri v.
Union of India1 the apex court ruled that it must be admitted that the guarantee against the
denial of equal protection of the laws does not mean that identically the same rules of law
should be made applicable to all persons within the territory of India in spite of differences of
circumstances and conditions.

It must be admitted that the guarantee against the denial of equal protection of the laws does
not mean that identically the same rules of law should be made applicable to all persons
within the territory of India in spite of differences of circumstances and conditions.

1
AIR 1951 SC 41

1
ARGUMENTS ADVANCED

Ar. 14 thus means that equals should be treated alike; it does not mean that unequals ought
to be treated equally. Persons who are in the like circumstances should be treated equally.
On the other hand, where persons or groups of persons are not situated equally, to treat them
as equals would itself be violative of Article14.2 Such an amendment if upheld will also bring
people of unsound mind, not citizens of Indian and convicts of electoral offences and
corruption to be able to vote and effect the elections according to their capabilities.

Furthermore, the amendment impinges on Article 19(a) of the Constitution which is the right
of speech and expression as it curbs the right of a citizen to move to a court of law and
criticize the state, under the meaning of Article 12 of the Constitution. In Life Insurance
Corporation of India and Union of India and another v. Prof. Manubhai D. Shah and
Cinemart Foundation3 ruled that the state cannot stop any criticism of executive action. In
Ragubir Singh v. Court of Wards4 held that a new legislation cant be made in contravention
of the fundamental rights provided in Part III of the Constitution. There can be restrictions
imposed on Article 19 1 (a), as it not an absolute right but it is impediment that they are
reasonable and moreover, not absolute. The passed amendment to the Representation of the
Citizens Act, 1951 puts a blanket ban on any judgement, decree or order of any court,
tribunal or authority if it pertains to the amendment5. It is hence an impediment to the
exercise of Article 19 1 (a).

The amendment violates the Article 21 of the Constitution which confers in each citizen the
right to life and personal liberty expect for the procedure established by law. In the present
case at hand the amendment doesnt allow the procedure of law to follow and hence curbs
personal liberty of the people to go to a court of law. The Supreme Court ruled in Hinch Lal
Tiwari v. Kamla Devi6 that enjoyment of a quality life by the people is the essence of the
guaranteed right under Article 21 of the Constitution. The Apex court ruled in A.K. Gopalan
v. State of Madras7 that the ambit of personal liberty protected by Article 21 is wide and
comprehensive. The right to life and personal liberty is an absolute right and there can be no
law made that is inconsistent with Article 21. In the landmark judgement of Maneka Gandhi
v. Union of India8 the apex court widened the scope of Article 21 and imposed a limitation

2
M.P. Jain, Indian Constitutional law, 5th ed(2013) Vol. 1 p. 1001
3
AIR 1993 SC 171
4
AIR 1953 SC373
5
Fact sheet, exhibit , 4
6
AIR 1950 SC 27
7
AIR 2001 SC 3215
8
AIR 1978 SC 597

2
ARGUMENTS ADVANCED

upon lawmaking which infringed the fundamental rights of the people. Maneka Gandhi9
down that a person shall only be deprived of his fundamental rights after exhausting all
procedures established by law. The Supreme Court in Madhav Hayawadanrao Hoskot v.
State of Maharashtra10 ruled that the ambit of Article 21 extends to the right of legal aid and
hence this right cant be taken away by means of the present amendment.

The present PIL has been filed under the Article 32(2) of the Constitution by way of
Mandamus writ; in the Supreme Court of Lindiya under the Article 32(1) of the Constitution
which bestows the right in each of its citizen to move the Supreme Court of Lindiya by
appropriate proceedings for the enforcement of the rights conferred by the Constitution. The
Amendment and Validation to the Lindiyan Representation of the Citizens Act 1951 amends
the section 62 of the act and adds a sub section 5 which doesnt allow any judgement, decree
or order of any court, tribunal or other authority to overrule the subsection11. The Supreme
Court In I.R. Coelho (Dead) By Lrs v. State Of Tamil Nadu & Ors12 ruled that the Legislature
cannot grant fictional immunities and exclude the examination of any statute made by the
legislature which infringes the fundamental rights of a citizen. The Supreme Court in Hindi
Hitrakshak Samiti and others v. Union of India and others13ruled It is well-settled that the
jurisdiction conferred on the Supreme Court under Article 32 is an important and integral part
of the Indian Constitution but violation of a fundamental right is the sine qua non for seeking
enforcement of those rights by the Supreme Court. Here the fundamental rights which are the
basic human rights of the citizens are being taken away from them. Hence, the PIL has
substantive grounds and must be entertained for public welfare and upliftment of
Fundamental rights and tenants of natural justice.

1.2 THAT THE AMENDMENT ENCROACHES UPON THE JURISDICTION OF

THE COURT

Article 50 of the Constitution separates the powers of the Judiciary from the Executive and
thus builds an independent judiciary. It is most imperative for a judiciary to be independent
so that justice and equality can prevail. In C. Ravichandran Iyer v. Justice A.M.
Bhattacharjee and Ors14the Supreme Court held the independence of judiciary to be very

9
ibid
10
AIR 1978 SC 1548
11
Fact Sheet; Exhibit 2, 4
12
AIR 2007 SC 861
13
AIR1990 SC 851
14
1995 (5) SCC 457

3
ARGUMENTS ADVANCED

important especially its freedom from the executive. The present amendment at hand
encroaches in the independence of the judiciary by not letting it function as it should. In
Union of India v. K.M. Shankarappa15 the Supreme Court observed that permitting the
executive to exercise power over the judiciary would be travesty of the rule of law which is
the basic structure of the Constitution.

The amendment to the Lindiyan representation Act of 1951 stands inconsistent with the
Article 141 of the Constitution. Article 141 vests the power in the Supreme Court to make all
its judgements binding on the lower courts and hence acts as a law making body. In
Secretary, State of Karnataka and Others v. Umadevi and Others16 the Supreme Court ruled
that this Court is not only the Constitutional court, but the highest court of appeal in the
country. By virtue of Article 141 of the Constitution, what this Court lays down is the law of
the land. Its decisions are binding on all the lower courts. Its main role is to interpret the
Constitution and other statutory provisions bearing in mind the fundamental philosophy of
the Constitution. The Supreme Court laid down guidelines and norms in the Vishaka v. State
of Rajasthan17and in Vineet Narayan v. Union of India18 and is competent enough to lay
down norms for upcoming elections as well.

Above all the present PIL should be maintained in the court because it is the duty of the state
according to Article 38 (1) to promote welfare of the people by securing and protecting social
order in economic, political and social tangents of life. In Air India Statutory Corporation v.
United Labour Union & Ors19 the Supreme Court ruled that The Preamble and Article 38 of
the Constitution envision social justice as the arch to ensure life to be meaningful and
liveable with human dignity. In the past some of the decades Lindiya has developed into an
ideal model for developing economies. Once considered to be a third world, underdeveloped
and stagnant nation, today the image of the country is changing due to impressive economic
growth. Despite this all this Lindiya has not achieved the status of a developed nation because
of the series of scams that have rocked the nation20. These scams are a result of the moral
deterioration in the politicians, something which the local newspapers keep pointing out from
time to time. The political parties use the sentiments of the people to gain political mileage
despite the laws which forbid all such mala fide intentions of the politicians. In order to curb

15
AIR 2000 SC 3678
16
AIR 2006 SC 1806
17
(1997) SCC 241 ( 11)
18
AIR 1998 SC 889
19
AIR 1997 SC 645
20
Fact sheet 7 (a)

4
ARGUMENTS ADVANCED

these scams which are hollowing the nation inside out; it is the mount need of the hour that
the citizens of Lindiya get highly righteous and virtuous representatives. If this need is
heeded for then, and then only will Lindiya reach the heights of economic and developmental
boom. Persons with questionable backgrounds do not deserve to be occupying seats in
Parliament and the State Legislatures. Giving a chance to convicts to run for elections is
taking a chance with the nations development and growth. It should be of prime concern to
the parliament that people who are not trustworthy do not stand for elections. For democracy
to survive, it is fundamental that the best available men should be chosen as the peoples
representatives for the proper governance of the country and the same can be best achieved
through men of high moral and ethical values who win the elections on a positive vote21. If
the amendment is quashed Political parties will think twice before putting up candidates with
criminal record, up for an election if such a bar is put on contesting elections. This will
further lead to cleansing of the political scenario. The present amendment is aimed at
benefitting the government which has cabinet members with prior criminal records22 by
letting people with a criminal record stand for elections.

1.3 THAT THE AMENDMENT HAS BEEN PASSED WITH AN ULTERIOR

MOTIVE

The entire summit of a Public Interest Litigation is to motivate Social action and public
motivated people to forward and work for the betterment of the public. In the present case the
NGO, Peoples Upliftment Organization alongside Mr. Yashwant Angre being very public
minded people have filed the PIL so that justice can be met with and the public that deserves
better can get their share. A writ petition may be moved in the form of a PIL by any
aggrieved or public spirited individual or a social action group like the Peoples Upliftment
Organisation, for the enforcement of a constitutional or legal right.23 The petitioners have
approached the court with clean hands, in order to the amendment struck down for the well
being of the general public at large.

The PIL should be maintained for the betterment and goodwill of the common people at
large; so that their fundamental rights can be rescued from the arbitrariness of the
Amendment and Validation Act of 2013 to the Representation of Citizens Act, 1951.

21
Manoj Narula v. Union of India (2014) 9 SCC 1
22
Fact Sheet 13
23
M.C. Mehta v. Union of India, AIR 1989 SC 1086

5
ARGUMENTS ADVANCED

Contention II: That the Amendment is violative of Part III of the Constitution.

The present amendment is inconsistent with Part III of the Constitution which confers
Fundamental rights on the general public. These are the rights which are basic in nature and
are conferred on the citizens and even non citizens to live a life of dignity. Article 13 (2) of
the Constitution provides that the state shall not make any law which are in contravention
Part III of the Constitution shall be void. This was upheld in the Keshavananda Bharti
Sripadgalvaru v. State of Kerala 24
that certain basic features cant be amended under the
meaning of amending power, part III of the Constitution being one such part.

2.1 THAT THE AMENDMENT IS VIOLATIVE OF ARTICLE 19 (1) (A)

The Amendment is violative of Article 19 (1) (a) as it limits the power of the people to
criticize the government. Article 19 is the right to speech and expression which was upheld in
Life Insurance Corporation of India and Union of India and another v. Prof. Manubhai D.
Shah and Cinemart Foundation25 that people are at liberty to criticize the state under the
meaning of Article 12 and that the state couldnt stop it. Romesh Thappar v. State of
Madras26 where the right of the petitioner to publish a book was protected.
However the right to speech and expression is not absolute and has some restrictions. Article
19 (2) lays down the reasonable grounds on which the right conferred under Article 19 (1) (a)
can be curtailed. This can be done in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with Foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incitement to an offence. The right curtailed
here doesnt fall in any of these grounds.

The Sovereignty and Integrity of India

Sovereign or supreme power is that which is absolute and uncontrolled within its own
sphere27. Sovereignty, in short means the independent authority of a state.28 The right to
criticise the government in context of getting their Article 14 (right to equality before law) is
not a threat to the sovereignty and integrity of the nation. The right cannot be curtailed under
this restriction.

24
AIR 1973 SC 1461
25
Supra note 3
26
AIR 1950 SC 124
27
Salmonds Jurisprudence, 1948, p. 143
28
D.D.Basu, Commentary on The Constitution Of India, 8 ed, 2007, p.388

6
ARGUMENTS ADVANCED

Security of the state

In Romesh Thappar v. State of Madras29 the apex court observed that levying of war and
rebellion against the government, external aggression or war, but not by not by minor
breaches of public order or tranquillity such as unlawful assembly, riot, affray, rash driving,
promoting enmity between classes and like is a threat to the security of the state. In
accordance to the definition laid in Romesh Thappar30 the right to criticise the government
doesnt fall under this restriction. The right to disapprove of the government cant be
withheld under this ground.

Friendly relations with foreign states

The right to criticise the government is the right to given to its citizens and has nothing to do
what so ever with a foreign state and hence doesnt fit into this restriction as well. Hence the
right to condemn the government cant be curtailed under this ground as well.

Public order
The Supreme Court in Supdt. Central Prison, Fatehgarh v. Ram Manohar31 interpreted
public order to be synonymous to public peace safety and tranquillity. A state is all power
to put restrictions such as banning films and books if they are becoming a reason of
disruption of discipline and igniting enmity amongst different sections of any community.
But the exercise of Article 19 to condemning the government is not to be curtailed under this
ground as well.

Decency or morality
This exception has been carved out to keep safe the morals of the public. 32 The extent of this
exception is not only till sexuality but anything against the current standards of behaviour and
propriety33. Asking for votes on religious grounds in a secular state is against the norms of
decency and propriety of the society34. The right to exercise of article 19 here cant be
withheld under this restriction.

29
Supra note 21
30
ibid
31
AIR 1960 SC 633
32
Director General, Directorate General Of Doordarshan v. Anand Patwardhan AIR 2006 SC 3346
33
Ramesh Yashwant Praboo (Dr.) v. Prabhakar Kashinath Kunte AIR 1996 SC 1113
34
Ibid

7
ARGUMENTS ADVANCED

Contempt of court
This exception has been carved out to act as a shield against interference by exercise of
speech and expression in the prestige of the court. This ground of restriction applies when the
freedom of speech and expression contravenes and poses as a hindrance in the functioning of
the courts as is provided in the Contempt of Court Act, 1971 which is not the case here; hence
such restriction cant be posed under this restriction.

Defamation
The right to ones reputation flows out to the right against defamation. If the expression and
speech of a person defames another one then his right can be rightful curtailed. 35 The PIL
seeks the right for the people who would sue the government in context to the present
amendment.

Incitement to an Offence
Offence according to the General clauses act 1971 means any act or omission made
punishable by any law for the time being force.36 If the right under Article 19 (a) is used to
incite an offence, then right to speech and expression can be truncated. The protection of
right asked for in the case at hand to get ones right to equality of law and right to
Constitutional remedies protected, hence is not a violation of this restriction. The asked right
cant be curtailed under this restriction as well.

The right to exercise ones right to criticise the government by means of judicial proceedings
is not a violation of any of the reasonable restrictions provided by Article 19 (2) for any
untamed use of Article 19(1) (a).
Hence, the right to condemn the government via process of judicial proceedings is righteous
and should be protected by this Honble Supreme Court.

2.2 THAT THE AMENDMENT IS VIOLATIVE OF ARTICLE 14

Law treats everyone equally and does not favour anyone either because he belongs to the
advantaged section of the society or to the disadvantaged section of the society and the
concept of equality and equal protection of laws guaranteed by Art. 14 in its proper spectrum
en compasses social and economic justice in a political democracy.

35
Kedar Nath Singh v. State of Bihar AIR 1962 SC1091
36
3 (38) General clauses act, 1897

8
ARGUMENTS ADVANCED

The right to be treated equally cannot be a defence for treating unequals and equals at par
with each other. In M.Nagaraj v. Union of India37 the Supreme Court held that equal
treatment of unequals is violation of Article 14. The present amendment made to the
Representation Act 1951 says a person whose name has been entered in the electoral roll
shall not cease to be an elector.38 This amendment overturns section 16 (1) which says a
person will cease being on the electoral roll if he is not a citizen of India, is unsound of mind
or has been disqualified from the voting under the provisions of any law relating to corrupt
practices and other offences in connection with elections.
Overturning this section would let a person who is not a Citizen of India anymore to be able
to vote in the election held in India. As section 16 (1) (a) provides for disqualification from
the electoral roll on the grounds of not being an Indian. A person becomes an Indian by birth,
by descent, by registration, by naturalisation and incorporation of territory. If a person
renunciates his/her citizenship by will, then such a person should not be allowed to be able to
make a difference in the electoral result of a nation by way of voting.
Upholding this amendment would also allow unsound of minds that have their names in the
electoral rolls before turning unsound of minds to vote. Unsound39 according the Black laws
dictionary means of health, mind etc; bad, whole, not free from any disease or disorder.
Furthermore, Indian Penal Code 1860 declares that nothing done by a person who is unsound
of mind shall constitute a crime as he/she is incapable of knowing the nature of the act, or
that he is doing what is either wrong or contrary to law40. In such a position a person who is
unsound of mind or has been declared so by a Court of Law, should not be allowed to vote as
well. As the person is incapable of knowing what is right for him/her or the whole nation.
The amendment should be struck down to save the unsound minds from getting targeted by
election contesting candidates for votes.
Moreover, the Amendment protects people guilty of corruption related to elections and
electoral offences to be eternally affecting the results of the elections. The Representation of
People Act, 1951 in its Part VII, Chapter I lists down corruption related to elections. These
are bribery41, undue influence,42 appealing for votes on communal or religious grounds43,

37
(2006) 8 SCC 212
38
Fact Sheet Exhibit 2 3
39
Black laws dictionary 8Ed p.1429
40
84, Indian Penal Code 1860
41
123(1),The The Representation of People Act, 1951
42
123(2), The Representation of People Act, 1951
43
123(3), The Representation of People Act, 1951

9
ARGUMENTS ADVANCED

false statement in connection to elections,44 the hiring or procuring of a vehicle or vessel by a

candidate or his agent for the conveyance of any electorate to the polling station45 illegal
payments in connection with an election and failure to keep accounts,46 obtaining or
procuring or abetting or attempting to obtain or procure by a candidate or his agent, any
assistance from any person falls in the category of (a) gazetted officers; (b) stipendiary judges
and magistrates; (c) members of the armed forces of the Union; (d) members of the police
forces; (e) excise officers [(f) revenue officers other than village revenue officers known as
lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land
revenue and who are remunerated by a share of, or commission on, the amount of land
revenue collected by them but who do not discharge any police functions; and] (g) such other
class of persons in the service of the Government as may be prescribed 47 and booth capturing
at elections48.

Part VII Chapter II lists down the electoral offences these are
i) Promoting enmity between classes in connection with election,49 ii) filing false
affidavits,50 iii) holding, attending and joining public meetings during period of forty-eight
hours ending with hours fixed for conclusion of poll,51 iv)publication and dissemination of
result of exit polls,52 v) offence under 126A by companies,53 vi) Disturbances at election
meetings,54 vii) printing of pamphlets, posters against restrictions55 viii) breach of
maintenance of secrecy of voting,56 ix) officers acting as influence for the electors57 x)
canvassing in or near polling stations,58 xi) disorderly conduct in or near polling stations,59
xii) misconduct at the polling station,60 xiii) failure to observe procedure for voting,61 xiv)

44
123(4), The Representation of People Act, 1951
45
123(5) The Representation of People Act, 1951
46
123(6), The Representation of People Act, 1951
47
123(7), The Representation of People Act, 1951
48
123(8), The Representation of People Act, 1951
49
125, The Representation of People Act, 1951
50
125A, The Representation of People Act, 1951
51
126, The Representation of People Act, 1951
52
126 A, The Representation of People Act, 1951
53
126B, The Representation of People Act, 1951
54
127, The Representation of People Act, 1951
55
127A, The Representation of People Act, 1951
56
128, The Representation of People Act, 1951
57
129, The Representation of People Act, 1951
58
130, The Representation of People Act, 1951
59
131, The Representation of People Act, 1951
60
132, The Representation of People Act, 1951
61
132 A, The Representation of People Act, 1951

10
ARGUMENTS ADVANCED

hiring or procuring of conveyance at elections,62 xv) Breaches of official duty in connection

with elections63 xvi) Government servants for acting as election agent, polling agent or
counting agent,64 xvii) going armed to or near a polling station,65 xviii)Removal of ballot
papers from polling station,66 xix)booth capturing,67 xx) paid holiday to employees on the day
of poll,68 xxi) sale of liquor on polling days,
xxii) And other offences such as

(a) Fraudulently defacing or fraudulently destroying any nomination paper; or

(b) Fraudulently defacing, destroying or removing any list, notice or other document affixed
by or under the authority of returning officer; or

(c) Fraudulently defacing or fraudulently destroying any ballot paper or the official mark on
any ballot paper or any declaration of identity or official envelop used in connection with
voting by postal ballot; or

(d) Supplying without due authority any ballot papers to any person [or receives any ballot
paper from any person or is in possession of any ballot paper]; or

(e) Fraudulently putting into any ballot box anything other than the ballot paper which he is
authorised by law to put in; or

(f) Without due authority destroys, takes, opens or otherwise interferes with any ballot box or
ballot papers than in use for the purposes of the election; or

(g)fraudulently or without due authority, as the case may be, attempts to do any of the
foregoing acts or wilfully aids or abets the doing of any such acts.

Anyone who does any of the above shall be an election offender69

Upholding this amendment would also lead to letting people guilty of section 11 A of The
Representation of People Act, 1951 which lists down disqualification arising out of

62
133, The Representation of People Act, 1951
63
134, The Representation of People Act, 1951
64
134A, The Representation of People Act, 1951
65
134 B, The Representation of People Act, 1951
66
135, The Representation of People Act, 1951
67
135 A, The Representation of People Act, 1951
68
135 B, The Representation of People Act, 1951
69
136, The Representation of People Act, 1951

11
ARGUMENTS ADVANCED

conviction and corrupt practices, free to be voting. These are Bribery under section 171 E of
the Indian Penal Code of 1860, undue influence or personation under section 171F of the
Indian Penal Code of 1860 and other provision of this act. Any person disqualified by the
decision of the president 70 shall be allowed to vote if the amendment is upheld.
This will also overturn section 62(5) of the Representation of the People Act 1951 which de-
bars people in prison or custody of police from voting. The Constitution al validity of this act
was upheld by Chandra Pradhan, Advocate, Supreme Court v. Union of India & Ors.71
All of the above given offences are very important to be curtailed for free and fair elections.
The term fair denotes equal opportunity to all people. In Peoples Union for Civil Liberties
and another v. Union of India and another72, while holding the voters rights not to vote for
any of the candidates, the Court observed that democracy and free elections are a part of the
basic structure of the Constitution. It is very impediment that such offences are curbed by
imposing heavy penalties. If the names of citizens guilty of such crimes are upheld in the
electoral rolls they will keep affecting the elections in an adverse manner. This will lead to
criminalisation of politics. The idea of criminalization of politics as it corrodes the
legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has
the potentiality to obstruct, if not derail, the rule of law. Democracy, which has been best
defined as the Government of the People, by the People and for the People, expects
prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine
sanctity by constant affirmance of Constitution al morality which is the pillar stone of good
governance.73
It wont be fair on the part of the government to allow people who are guilty of offences
related to elections to be a part of elections and affect the results. The punishment of these
offences ranges from 3 years of imprisonment to a fine of 500. The Supreme Court in Chief
Election Commissioner and Anr. v. Jan Chaukidar(peoples watch) and others74 right to vote
is a statutory right, if the law grants it, it can take it away as well. It is a privilege to vote,
which can be taken away. It should rightfully be taken away in matters when such offences
have been committed.

70
8A, The Representation of People Act, 1951
71
(1997) 6 SCC 1
72
(2013) 10 SCC 1
73
Supra note 16
74
(2013) 3 SCC 590

12
ARGUMENTS ADVANCED

2.3 THAT THE AMENDMENT IS VIOLATIVE OF ARTICLE 32 (1)

The bare provisions read as follows
Article 32 - Remedies for enforcement of rights conferred by this Part
1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
This article confreres rights on the citizens and non citizens as well to get the rights provided
in this part protected by the Supreme Court, if the appropriate proceedings are followed for
enforcement. In Bandhua Mukti Morcha v. Union of India75the Supreme Court observed that
the Constitution makers deliberately did not lay down any particular form of proceeding for
the enforcement of fundamental rights nor did they set up any straight jacket formula because
in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation
and exploitation, any insistence on a rigid formula of proceeding for enforcement of a
fundamental right would become self-defeating because it would place enforcement of
fundamental rights beyond the reach of the common man. In the case of a PIL it is not very
important to follow court procedure strictly.
The amendment goes ahead to rob off power from any judgment, decree or order of any
court, tribunal or other authority and hence76, stands in opposition of the power conferred by
Article 32(1). Article 32(4) lays down the rights guaranteed by this article shall not be
suspended expect as otherwise provided for by this Constitution. Making of such laws which
take away the fundamental rights of the citizens is unconstitutional by the restrictions posed
under Article 13(2).77 Our Constitution expressly confers upon the courts the power of
judicial review and as regard the fundamental rights the court has been, by article 32,
assigned the role of a sentinel on the qui vive. The court cannot decline the duty of
determining the Constitutionality of a statute.78 The power to annul the acts of the executive
and the judiciary which violate the Constitution is vested by the Constitution itself to the
judiciary and not the legislature which is a creature of the Constitution. It is not correct to say
that the view of the legislators must prevail because they are answerable to the people79. The
Honble Court should deem this amendment unconstitutional for being inconsistent with the
part III of the Constitution.

75
AIR 1984 SC 802
76
Supra note 1
77
Golak Nath v. State of Punjab AIR 1967 SC 1643;Supra note 20; Indira Nehru Gandhi v. Raj Narain AIR
1975 SC 2299; Minerva Mills v. Union of India AIR 1980 SC 1789; Sambamurthy v. Union of India AIR 1987
SC 66.
78
Supra note 23 p. 65
79
S.C. Advocates on Record Association v. Union of India AIR 1994 SC 268 9 judge bench

13
ARGUMENTS ADVANCED

2.4 THAT THE AMENDMENT IS VIOLATIVE OF ARTICLE 21

Article 21 of the Constitution lays down the following provisions

Article 21 - Protection of life and personal liberty: No person shall be deprived of his life
or personal liberty except according to procedure established by law.
It is the most luminary provisions in the Constitution and is a part of the scheme for
fundamental rights occupies a place of pride in the Constitution. The article mandates that no
person shall be deprived of the life and personal liberty except according to the procedure
established by law. This scared and cherished right i.e. personal liberty has an important role
to play in the life of every citizen. Life or personal liberty includes a right to live with human
dignity. There is an inbuilt guarantee against torture or assault by the state and its
functionaries80.
The expression personal liberty in article 21 of the Constitution is the widest amplitude
and it covers a variety of rights which go on to constitute the personal liberty of a man. 81
Right to personal liberty means life free from encroachments unsustainable in law.82 The
alteration done in The Representation of citizens Act, 1951 is not Constitutionally valid as it
abrogates the right to personal liberty of an individual by curtailing his/her right to legal aid.
The scope and ambit of personal liberty is large enough to encompass legal aid.83 Taking
away of this right is unconstitutional84 and hence the amendment needs to be struck down.

2.5 THAT THE AMENDMENT IS VIOLATIVE OF ARTICLE 13

Article 13 of The Constitution lays down the following principles

13. Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void

80
Supra note 23 p.364
81
Supra note 8
82
Distt. Registrar and Collector v. Canara Bank, AIR 2005 SC186
83
Supra note 10
84
Article 13, Constitution of India

14
ARGUMENTS ADVANCED

(3) In this article, unless the context otherwise requires law includes any Ordinance, order,
bye law, rule, regulation, notification, custom or usages having in the territory of India the
force of law; laws in force includes laws passed or made by Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas.

The Lindiyan Representation of the Citizens (Amendment and Validation) Act, 2013 comes
under the ambit of law as given by Article 13 (3). Any of the law which is passed under the
power of Article 245 and 246 of the Constitution; which vests the power of making,
amending or repealing laws in the Parliament and the Legislature of states, is subject to
Article 13.85

The Amendment is violating Article 13(2) of the Constitution by virtue of violating the above
given articles; hence should be struck down.86

85
Supra note 23 p73
86
Supra note 73

15
ARGUMENTS ADVANCED

Contention III: That the Amendment and Validation Act, 2013 is constitutionally
invalid.

The present amendment comes under the subjects of Union List specified in the Seventh
Schedule of The Constitution of India.

Article 246(1): Subject matter of laws made by Parliament and by the Legislatures of States

1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to

make laws with respect to any of the matters enumerated in List I in the Seventh
Schedule (in this Constitution referred to as the Union List)

In the 72nd entry of the Union List specified in the Seventh Schedule of The Constitution of
India the power is given to the parliament to make laws regarding Elections to Parliament, to
the Legislatures of States and to the offices of President and Vice-President and the Election
Commission. These have been placed so by the doctrine of Pith and Substance, hence is
statutorily valid.

But, the present amendment is violative of Articles 14, 19 (1) (a), 21, 32(1) of part III of the
Constitution which makes it null and void; as according to the mandate of Article 13(2)
which is against the erosion of any fundamental right from the citizens.

Moreover, the amendment has an ulterior motive which it seeks to benefit the law makers
alone. If the amendment stands then Mr. Ranjeet Thadani, guilty of promoting enmity
between different groups on grounds of religion, race, place of birth, residence, language, etc
and doing acts prejudicial to maintenance of harmony87 will not be able to contest elections.
Ranjeet Thadani is a major political player and is rumoured to be the prime ministerial
candidate for the elections to be held in 2015.88 The Amendment was passed to overturn the
effect of the judgement passed on the 10th of July 201389 which outlawed the citizens
convicted of certain offences to be able to stand for elections. The list of certain offences is
enshrined in the Section 8(a) of The Representation of Peoples act 1951. Mr. Thadani is
guilty of Section 153A (b) which lists first in the list of certain offences. The Amendment is
against the welfare of people as it aims to let, the people guilty of grave offences against the

87
153A(b), Lindiyan Penal Code, 1860
88
Fact sheet, 14
89
Fact sheet, 14

16
ARGUMENTS ADVANCED

peace and tranquility of this nation be able to contest elections. They might be able to win
elections by doing lawless activities.

17
ARGUMENTS ADVANCED

Contention IV: That the Impugned Amendment and Validation Act, 2013 should be
struck down.

The Lindiyan Representation of The Citizens (Amendment and Validation) Act, 2013 to the
Representation of the Citizens Act, 1951 is arbitrary and authoritative in nature.

It takes away the right of equality90 before law by giving Unsounds of mind, foreign nationals
and people convicted of election offences and corruption the right to influence the election
results by way of voting. Though the Honble court has held that treating unequals as equal is
in violation of the principle of equality before law91.

It puts an embargo on the right to speech and expression92 of the citizens by not letting them
way their grievances to the courts for redressal.

It extinguishes the hope of the faith in the Constitution by putting a veil to the right to life and
liberty93 by covering the vent of hope for redressal by courts.

The Lindiyan Representation of The Citizens (Amendment and Validation) Act, 2013 stands
against the Right to Constitution al Remedies94 by adjudging any judgment, decree or order
of any court, tribunal or other authority invalid as against the present Amendment.

The Lindiyan Representation of The Citizens (Amendment and Validation) Act, 2013
contravenes by contravene the above given Articles, Article 13 (1) of the Indian Constitution.

Independence of judiciary is an essential attribute of rule of law which is basic feature of the
Constitution.95The Amendment act is also against the autonomy of the Supreme Court of
India by putting a bar over the jurisdiction it holds.

All that the Supreme Court lays down is binding on all lower courts and tribunals96. The
Amendment and Validation Act also raids the Supreme Court of its power to get judgements
passed by it bound on lower courts and act a court of record97.

90
Article 14, Constitution of India, 1950
91
Supra note 19
92
Article 19(1)(a), Constitution of India, 1950
93
Article 21, Constitution of India, 1950
94
Article 32(1),Constitution of India, 1950
95
Supra Note 14
96
Article 141, Constitution of India; Union Of India v. Kantilal Hematram Pandya AIR 1995 SC 1349
97
Article 141, Constitution of India

18
ARGUMENTS ADVANCED

The Amendment and Validation Act, 2013 is an unconstitutional amendment as it stands

against the spirit of fundamental rights. Hence, should be struck down.

19
PRAYER

PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities citied,
the counsel for the petitioner humbly prays before this Honble Supreme Court of India to
adjudge and declare:-

1. THAT THE LINDIYAN REPRESENTATION OF THE CITIZENS (AMENDMENT AND

VALIDATION) ACT, 2013 WHICH MADE ADDITIONS TO SECTION 7 (b0) AND
SECTION 62 (5) OF THE REPRESENTATION OF THE CITIZENS ACT, 1951 IS
VIOLATIVE OF THE PART III OF THE CONSTITUTION.
2. THAT THE LINDIYAN REPRESENTATION OF THE CITIZENS (AMENDMENT AND
VALIDATION) ACT, 2013 IS NOT IN CONFORMITY TO THE BASIC STRUCTURE
OF THE CONSTITUTION.
3. THAT THAT THE LINDIYAN REPRESENTATION OF THE CITIZENS
(AMENDMENT AND VALIDATION) ACT, 2013 ENCROCHES IN THE
JURISDICTION OF THE HONBLE SUPREME COURT.
4. THAT THE LINDIYAN REPRESENTATION OF THE CITIZENS (AMENDMENT AND
VALIDATION) ACT, 2013 IS NOT CONSTITUTIONALLY VALID.

And pass any other order as this Honble court may deem fit and for this act of kindness, the
counsel of the petitioner as duty bound shall forever pray.

HUMBLY SUBMITTED
SD/-
COUNSEL FOR THE PETITIONER