7th Saquib Rizvi Moot Respondent Memorial

BEFORE THE HON’BLE SUPREME COURT OF LINDIYA

(UNDER ART.32 OF THE CONSTITUTION OF INDIA) W.P.NO (CIVIL) :

OF 2015

In the matter of: 1)Peoples Upliftment Organisation & 2)Yashwanth 2)Yashwanth Angre

Petitioners Petitioners

V.

Union of Lindiya

Respondents

MEMORIAL ON BEHALF OF THE RESPONDENTS

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


1

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ………………………………………………… ………………………………………………………...……... ……...……... 3,4 INDEX OF AUTHORITIES A. LIST OF BOOKS REFERRED ………………………… ………………………………………….………. ……………….………........5 .......5 B. LIST OF STATUTES REFERRED ……………………………………………...........5 ……………………………………………...........5 C. LIST OF JOURNALS REFERRED …………………………………………..............6 …………………………………………..............6 D. LIST OF WEBSITES REFERRED ………………………………………………......6 ………………………………………………......6 E. LIST OF REPORTS REFERRED …………………………………… ……………………………………………............6 ………............6 LIST OF CASES REFERRED …………………………………..…………...........................7,8,9 STATEMENT OF JURISDICTION ……….……………………………………… ……….………………………………………………........10 ………........10 STATEMENT OF FACTS ………..……………… ………..……………………………………… ……………………………………........11,12 ……………........11,12 STATEMENT OF ISSUES ……….……………………………………………… ……….……………………………………………………… ……… ........13 SUMMARY OF ARGUMENTS ………………………………………………………….........14 ………………………………………………………….........14 ARGUMENTS ADVANCED ……………………………………………………………..........15 ……………………………………………………………..........15 PRAYER ……………………………………………………… ……………………………………………………………………………… ………………………...….......39 ...….......39


2

LIST OF ABBREVATIONS

AIR

- ALL INDIA REPORTER

ART.

- ARTICLE

C.J.

- CHIEF JUSTICE

Cr.P.C

- CODE OF CRIMINAL PROCEDURE

DPSP

- DIRECTIVE PRINCIPLE OF STATE POLICY

FR

- FUNDAMENTAL RIGHTS

HON’BLE

- HONOURABLE HONOURABLE

ICCPR

- INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS

UDHR

-UNIVERSAL DECLARATION ON HUMAN RIGHTS

I.P.C.

- INDIAN PENAL CODE

ANR

-ANOTHER

ORS.

- OTHERS

S.

- SECTION

SC

- SUPREME COURT

HC

-HIGH COURT

SCALE

- SUPREME COURT ALMANAC

SCC

- SUPREME COURT CASES

ST.

- STATE

v.

- VERSUS

NO. PARA

-NUMBER -PARAGRAPH

LPP

-LINDIYAN PEOPLES PARTY

LDP

-LINDIYAN DEVELOPMENT PARTY

RPA 1950

-REPRESENTATION OF PEOPLES ACT 1950

RPA 1951

-REPRESENTATION OF PEOPLES ACT 1951

NGO

-NON- GOVERNMENTAL ORGANISATION ORGANISATION

PUO

- PEOPLES UPLIFTMENT ORGANISATION

PUCL

- PEOPLES UNION OF CIVIL LIBERTIES


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PIL

- PUBLIC INTEREST LITIGATION

CBI

-CENTRAL BUREAU OF INVESTIGATION

PC

-PREVENTION OF CORRUPTION

CPC

- CODE OF CIVIL PROCEDURE

UP

- UTTAR PRADESH

MP

-MEMBER OF PARLIAMENT

MLA

-MEMBER OF LEGISLATIVE ASSEMBLY


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INDEX OF AUTHORITIES A. LIST OF BOOKS REFERRED:

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

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

 V.N.SHUKLA, CONSTITUTION OF INDIA, EASTERN BOOK CO, 12 EDN.  Dr.HARI SINGH GAUR, THE INDIAN PENAL CODE, LAW PUBLISHERS

(INDIA)Pvt ltd, 12 thEDN(2005).  HENRY CAMPBELL BLACK; BLACK’S LAW DICTIONARY, WEST PUBLISHING

COMPANY, 5TH EDN.  R.N.CHOUDHRY, ELECTION LAWS AND PRACTICE IN INDIA,ORIENT

PUBLISHING COMPANY, FOURTH EDITION(2014)  P.M.BAKSHI, THE CONSTITUTION OF INDIA,UNIVERSAK LAW PUBLISHING

CO. TWELTH EDITION(2013) E DITION(2013)  M.R.MALLICK, WRITS (LAW AND PRACTICE),EASTERN LAW HOUSE,

SECOND EDITION (2009).  OXFORD DICTIONARY,OXFORD UNIVERSITY PRESS,  BHARI, MANUAL OF ELECTION LAWS, BHARI BROTHERS, S IXTH EDITION,

(2013)

B. LIST OF STATUES REFERRED:

1. THE CONSTITUTION OF INDIA 2. THE INDIAN PENAL CODE, 1860 3. THE CODE OF CRIMINAL PROCEDURE, 1973 4. THE REPRESENTATION OF PEOPLE ACT 1950 5. THE REPRESENTATION OF PEOPLE ACR 1951 6. ELECTION LAWS


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C. LIST OF JOURNALS REFERRED:

1. ALL INDIA REPORTER (AIR) 2. SUPREME COURT CASES (SCC) 3. SUPREME COURT ALMANAC (SCALE) 4. CRIMINAL LAW JOURNAL (Cri. L.J) 5. SUPREME COURT CASES CRIMINAL(SCC(Cri)) 6. SUPREME COURT REPORTER(SCR)

D. LIST OF WEBSITES REFERRED:

1. www.manupatra.com 2. www.scconline.com 3. www.indialawsite.com 4. www.indiankanoon.org 5. www.legalserviceindia.com 6. www.lawcornell.com

E. LIST OF REPORTS REFERRED:

1. LAW COMMISSION REPORTS


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TABLE OF CASES INDIAN CASE LAWS: S.NO

CITATION

CAUSE TITLE

1.

DAV College v. State of Punjab

1971 (2)SCC 261

2.

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

1974 (3)SCC 415

3.

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

1985 (1) SCC 523

Express Newspaper Pvt. Ltd. v. Union of India

1986 (1) SCC 259

5.

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

1990 (2) SCC 715

6.

Profulla Kumar Sinha v. State of West Bengal

1992 Supp. (2) SCC 122

Mohan Chand v. Union of India

1995 Supp. (3) SCC 425

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

1996 (6) SCC 734

9.

Anukul Chandra Pradhan v. Union of India & Ors.

1997 (6) SCC 1

10.

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

1997 (2) SCC 453

11.

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

1999 (9) SCC 700

12.

Raipur Development Authority v. Anupam Sakhari Griha Nirman Samiti

2000 (4) SCC 357

4.

7.

8.


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S.NO.

CAUSE TITLE

13.

Ranji Thomas v. Union of India

14.

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

2000 (2) SCC 81

2003 (4) SCC 399

India 15.

CITATION

State of Karnataka & Anr. v. All India Manufacturers Organisation &Ors.

2006 (4) SCC 683

16.

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

2008 (4) SCC 720

17.

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

2012 (2) SCC 542

18.

State of Madhya Pradesh v. Rakesh Kohli

2012 (6) SCC 312

19.

Charanjit Lal Chowdhury v. UOI &Ors

1950 SCR 869

20.

St of Bombay v. F.N.Bulsara

1951 SCR 682

21.

N.P.Ponnuswami v. Returning Officer, Namakkal

1952 SCR 218

Constituency 22.

K.C.Gajapati Narayan Deo v State of Orissa

1954 SCR 1

23.

Jamuna Prasad Mukhariya v. Lachi Ram

1955 (1) SCR 608

24.

Rai Sahib Ram Jawaya Kpur v. State of Punjab

1955 (2) SCR 225

25.

Narendra Singh v. State of Madhya Pradesh

2004 (10) SCC 699

26.

Kailash Gaur & Ors. V. State of Assam

2012 (2) SCC 34

27.

Mahant Moti Das v. S.P.Sahi

1959 Supp (2) SCR 563

28.

Board of Trustees,Ayurvedic Unani Tibia College

1962 Supp (1) SCR 156

v.State of Delhi 29.

Kalipada De v. Dwijapada das

AIR 1930 PC 22

30.

Star Mills v. State of U.P

1983 (4) SCC 299

31.

Gopalan .M.K v.St of Madhya Pradesh

1954 SCR 168


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S.NO

CAUSE TITLE

CITATION

32

Manoj Mano j Narula v. UOI

2014 (9) SCC 1

33.

Govt of Andhra Pradesh v. Laxmi Devi

2008 (4) SCC 720

34.

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

Civil Apeeal No:8617 –

“B” Estate & Ors.(yet to be reported)

8635 / 2003

Ranjit Singh Brahmajeet Singh Sharma v. St of

2005 (5) SCC 294

35.

Maharashtra 36.

S.Ganesan v. Rama Ranghuraman

2011 (2) SCC 83

37.

St of UP v. Naresh

1981 (3) SCC 74

38.

Municipal Committee Patiala v. Model Town residents’

2007 (8) SCC 669

Association 39.

40.

Manohar Lal Sharma v. UOI

Order Dated:5/12/2014

(yet to be reported )

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

Mohammed Ahmed Khan v. Shah Bano Begum

1985 (3) SCR 844.

HIGH COURT CASE LAWS:

S.NO

CAUSE TITLE

CITATION

1.

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

2004 (2) BLJR 985

2.

Manohar lal Sharma v. UOI

2014 (1) RCR (civil ) 1019

INCOME TAX TRIBUNAL CASE LAWS: S.NO

CAUSE TITLE

CITATION

1.

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

1997 (227) ITR 421

FOREIGN CASE LAWS:

S.NO

1.

CAUSE TITLE

Heydon’s Case

CITATION

(1584) 79 ER 637


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STATEMENT OF JURISDICTION

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

Fundamental Rights of the petitioners guaranteed under Part III of the Constitution and as such the writ petition under Art 32 is not n ot maintainable.


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STATEMENT OF FACTS

> Lindiya is located in the Lindiyan L indiyan sub-continent. Albeit the country embraces different religions, culture and traditions, an overall feeling of ‘being a Lindiyan’ unites all its inhabitants. Lindiya obtained independence in 1945 as a result of the peo ple cutting through their differences to come together as Lindiyans to fight for their independence. > Almost a month later , Lindiya split split into two; the new country formed was named Bakel consisting mainly of Fargoists. It was rumoured that the split was a result of a co nflict within LDP(Lindiyan Development Party)with regard to their Prime Ministerial candidate. Ho wever, the split was seen as a result of religious differences by the co mmon man. > On 25th August 1947,a 1947, a communal riot broke out between Brogmoidist-Fargoist Bro gmoidist-Fargoist claiming claiming thousands of lives. The bad blood that t hat existed between these two religious groups was exploited by politicians to gain political mileage mileage despite the express prohibition of such misconduct by specific provisions of law. > In the last 68 years, Lindiya has developed into an ideal model for developing countries. The LDP has held office for almost 34 years of the 68 years and in the remaining remaining years , the country has witnessed the LPP(Lindiyan Peoples Party) in power. > In an interview, Mr. Ranjeet Thadani T hadani was accused by Mr. Shekhar Verma, Ver ma, a senior member of the LPP who claimed that his family was the reason for the Partition, which he de nied saying that it was the act of the followers followers of o f Fargoism who he claimed were motivated by their re ligious ligious needs even to the t he extent of it being detrimental to the entire ent ire nation. > This statement infuriated the religious religious group who started large large scale protests. Despite, Despite, Mr.Thadani tendering a public apology for his statements, he was charged with S.153A and S.295 A of the Lindiyan Penal Pe nal Code and sentenced to 7 years of imprisonment by the Sessions Court. Later, the conviction under S.295 of the LPC was overturned by the High Court. > A landmark judgement was delivered on 10th July,2013 by the Supreme Court of Lindiya whereby a stringent approach was adopted in in order to curb criminalisation criminalisation of politics politics .


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> Spontaneously, the Government Go vernment passed The Lindiyan Representation of the Citizen’s (Amendment and Validation) Act 2013 widening its it s ambit thereby reversing the judgment of the Supreme Court. > An NGO called the Peoples Peo ples Upliftment Upliftment Organization that was working towards clean politics demanded that elections should not be contested by those who have a criminal record. > During one of his speeches Mr.Angre exclaimed e xclaimed ‘the nation must be governed go verned by those with clean hands’. Mr. Thadani responded to this by stating ’Part III of our constitution constitution bestows fundamental rights on the people of this nation which wh ich cannot be violated and a test of Reasonableness must be applied before incarcerating so meone´s freedom’. > The People’s Upliftment Organization along with Mr.Angre filed a P IL before the Supreme Court of Lindiya to strike down the a mendment. > The laws and Constitution of Lindiya are Pari-materia to the laws of India.


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STATEMENT OF ISSUES

1) WHETHER THE PETITIONERS , PEOPLES’S UPLIFTMENT UPLIFTMENT ORGANISATION AND MR.YASHWANTH ANGRE HAVE LOCUS STANDI TO APPROACH THIS HON’BLE COURT UNDER ART.32 OF THE CONSTITUION.

2) WHETHER THE LEGISLATURE HAS LEGISLATIVE COMPETENCY TO PASS THE IMPUGNED AMNEDMENT ACT .

3) WHETHER THE AMENDMENT ACT IS CONSTITUITONALLY VALID.

4) WHETHER THIS IMPUGNED AMENDMENT ACT UPHOLDS THE FUNDAMENTAL PRINCIPLE OF CRIMINAL JURISPRUDENCE.


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SUMMARY OF ARGUEMENTS

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

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

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

4. The fundamental principle of criminal jurisprudence that t hat holds a clear distinction between an ‘accused’ and a ‘convict has been restored by the legislature through the amendment.


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ARGUMENSTS ADVANCED 1.LOCUS STANDI: 1.1.RES JUDICATA: CONCEPT OF RES JUDICATA

In St of Karnataka and Anr v All India Manufacturers Organisation and Ors1 , the SC explained the term of res judicata judicata . The Supreme Court said : “Res Judicata is based on the larger public interest and is founded on two grounds : one being the maxim nemo nemo debet bis vexari vexari pro pro una et eadem eadem causa (no one ought to be twice vexed for one and the same cause) and second, public policy that there there ought ought to be an end end to the same same litigation. litigation. It is well settled settled that S. 11 of the Civil Procedure Code(herein after “C.P.C”) 1908 is not the foundation of the principle principle of Res judicata, judicata, but merely merely statutory statutory recognition recognition thereof and hence, hence, the section section is not not to be consider considered ed exhaustive exhaustive of the general general 2

principle of of law. The main purpose of the doctrine is that once a matter has been determined determined in a former former proceeding proceeding , it should should not be open open to reagitate reagitate the matter again and and again. again. Section 11 C.P.C C.P.C recognizes recognizes this principle principle and forbids forbids a Court from from to any suit or issue issue which is res judicata, judicata, recognizing recognizing both “cause of action estoppel” and “issue estoppel”.

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

1

2

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

15

connected connected issue or an an issue, which had been raised raised should should have been been raised raised on an earlier occasio occasion n by way of a public public interest interest litigation. litigation. ”

The Constitution Bench of the SC in Direct Recruit Class II Engg. Officers’ Assn V. 3

St of Maharashtra ,held:

“[A]n adjudication is conclusive and final not only as to the actual matter determined but but as to every every other matter which the parties might might and ought to have litigated litigated and have have had(sic) had(sic) decided as as incidental incidental to or essentially essentially connected connected with(sic)subjectwith(sic)subject- matter of of the litigation litigation and every every matter coming into the legitimate purview purview of the original action action both in respect respect of the matters matters of claim and defence.” defence.” PRESENT WRIT PETITION PETITION IS BARRED BY RES JUDICATA JUDICATA :

The impugned amendment Act was earlier challeneged before the Delhi HC in Manohar Lal 4

co nstitutional tutional validity of the amendment Sharma v UOI . The petitioner therein challenged the consti act as being ultra vires the Constituti Co nstitution on vitiated by mala fides and a nd against the general public interest. It was a bonafide litigation initiated in larger public interest. The De lhi HC considered the contentions raised by the writ petiti pet itioner oner in the light of the constitutional and statutory provisions governing the field and upheld the validity. The unsuccessful writ writ petitioner challenged the judgment judgment dated 6.02.2014 of the Delhi HC before the SC in SLP (C)No. 8640/2014. The SC while dismissi d ismissing ng the SLP held that the HC has not commi co mmitted tted any error calling for interference. The order is not one o ne of a simple dismissal of SLP. The order dated 5.12.2014 reads thus : “We have carefully gone through the judgment and order, dated 06.02.2014 passed by by the Delhi High Court. Court. We are of of the considered considered opinion opinion that the High High Court has not committed any error which would call for our interference. Therefore, we decline to entertain this special leave petition. Accordingly, the 5

special leave leave petition petition is dismissed. dismissed. ”

3

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


16

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

1.2. THE SCOPE OF ART.32: “32. Remedies for enforcement of rights conferred by this Part.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

In the above article ‘this part’ refers to Part III of the constitution of India, Fundamental Right. Art 32 can be invoked only when there is an infringement of FR. This view has been expressed in numerous cases and more particularly in Star Mills V. St of U.P 6and 7

Express Newspapers Ltd V. UOI .

6

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

7

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


17

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

1.3.RIGHT TO VOTE

AND CONTEST CONTEST ELECTIONS IS NOT A FUNDAMENTAL FUNDAMENTAL

RIGHT; IT IS MERELY A STATUTORY RIGHT:

It is trite that right to vote' is not a fundamental right or constitutional right, but is only a statutory right. The Legislature can determine the terms on which the right to vote is enjoyed by the people of India. S. 62(5) of the RP Act o f 1951 explicitly states, ― No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-S. shall apply to a person subjected to preventive detention under any law for the time being in force.

The constitutional validity of the said S. was upheld upheld by the Supreme Court in Anukul Chandra 10

Pradhan V. Union of India and Ors. , by holding as under:

“It may also be mentioned that the nature of right to vote has been held to be a statutory statutory right and not a common law right because because of which it depends depends on the nature nature of right conferred conferred by by the statute.” statute.”

In N.P. Ponnuswami V. Returning Officer, Namakkal Constituency,11 the Constitution Bench held 8

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

9

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

Anukul Chandra Pradhan V. Union of India and Ors., (1997) 6 SCC 1. MEMORIAL ON BEHALF OF THE RESPONDENTS

18

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

In Jamuna Prasad Mukhariya v. Lachi Ram12, the Constitution Bench reiterated its earlier

decisions by holding that “The Fundamental Rights Chapter has no bearing on a right like this created created by statute.” statute.”

In PUCL V. UOI13, the SC held that : “The right to stand as a candidate and contest an election is a special right created created by the statute and and can only be exercised exercised on the In In that context, context, the Court made an observation that the fundamental right chapter had no bearing on on the right to contest contest the election election which which is created created by the statute statute …”

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

In the instant case , the proviso to Sec 62 (5) of RP Act , 1951 is under challenge . The right guaranteed by this proviso is not a part of the FR but is the creation of a statute.

11

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

12

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


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Considering this along with the nature of rights sought to be protected under Art.32 , the petitioners have no locus standi to challenge the particular amendment under the aforesaid Article. 1.3.1. Re – Litigation Impermissioble :

The Supreme Court has already a lready held in Manoj Narula v UOI15 that the court cannot read a disqualification into the already expressed disqualification provided under the Co nstitution nstitution and the 1951 Act, since s ince it would tantamount to crossing the boundaries of o f judicial review. In S.P.Anandh V. H.D. Deve Gowda16, the SC held that: “It is of utmost importance that those who invoke the SC jurisdiction seeking a waiver of locus locus Standi Standi Rule must exercise exercise restraint restraint in moving moving the court court by not plunging plunging in areas wherein they they are not well-versed well-versed.. Such a litigant must not succumb to spasmodic sentiments sentiments and and behave like a knightknight- errant roaming at a will will in pursuit pursuit of issues issues providing providing publicity publicity . He must remember remember that as a person person seeking seeking to espouse espouse a public cause cause,, he owes it to the public public as well as to the court that he does not rush to court without undertaking research, research, even if he is qualified qualified or competent competent to raise the the issue.”

It is is also also pointed out “So also the court must be careful to ensure that the process of the court is not sought to be abused abused by a person person who desires desires to persist persist with his point of view, view, almost carrying carrying it to the point point of obstinacy, obstinacy, by filing a series series of petitions petitions refusing to accept accept the courts earlier earlier decisions decisions as concluding concluding the point ”

The Delhi HC upheld the constitutional validity of the impugned amendment in Manohar Lal 17

co mprising of the Hon’ble CJ Mr.H.L Dattu Sharma v UOI . This was affirmed by a Bench comprising and Hon’ble Mr. Justice A.K.Sikri Yet, the petitioners have chosen to disregard the binding decisions of the Hon’ble Court . They have come forward espousing their concerns on a matter which is done and dusted with. 15

Manoj Narula v. UOI 2014 (9) SCC 1. S.P.Anandh V. V. H.D. Deve Gowda (1996) 6 SCC 734. 17 Supra.

16


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2. LEGISLATIVE COMPETENCY: THE AMENDMENT ACT:

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

2.1. LEGAL BASIS :

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


21

As per S. 16(1) of the Representation of the People Act 1950 A person shall be ineligible for registration in an electoral electoral roll as an elector if he (a) is not a citizen of India; or (b) is of unsound mind and stands declared so by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt corrupt practices practices and and other offences offences in connection connection with the elections. elections.

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

It is settled principle of law that the Legislature can change the basis on which a decision is given by the Court and, thus, change the law in general, which will affect a class of persons and events at large. The Legislature can render judicial decisions ineffective by enacting a valid law on the topic within its legislative field, fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid.

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


22

In Manohar Lal Sharma V. UOI18 the Delhi HC held that : “In fact, by the impugned Amendment and Validation Act, 2013, the Parliament has has by explicit explicit words overruled overruled the intent intent which had been been read by implication by the Courts intoS. 62(5) and consequently, changed the basis of "Court's decision" and is, thus, valid.”

The constitutional validity of S. 62(5) of the Representation of the People Act, which debarred a person in lawful custody from voting in an election has already been upheld by the Supreme court of India in the case of Anukul Chandra Pradhan, Advocate, Supreme Court v. Union 19

of India & Ors . The relevant portion of the judgment, reads as follows:

“There are other reasons for justifying this classification. It is well known that for the conduct of free, fair and orderly orderly elections, there is need to deploy considerable considerable police force. Permitting every person in prison also to vote would require the the deployment of a much larger larger police force force and much greater security security arrangements arrangements in the conduct of elections. elections. Apart from the resource crunch, the other constraints constraints relating to availability of more police force and infrastructure infrastructure facilities are additional factors to justify the restrictions imposed by sub-S. 5 of S. 62.”

2.2.PRE-EMINENCE OF THE LEGISLATURE:

In Municipal Committee, Patiala v. Model Town Resident’s Association

20

held that

legislation is in the domain of the Legislature. Leg islature. It was said: “It is so well settled and needs no restatement at our hands that the legislature is supreme in its own sphere under the Constitution subject to the limitations provided provided for in the Constitution Constitution itself. It is for the legislature legislature to decide as to

18 19 20

Supra.

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


23

when and in what respect and of what subject- matter the laws are to be made. It is for the legislature legislature to decide as as to the nature nature of operation operation of of the statutes.” statutes.”

More recently, V.K. Naswa v. UOI & Ors.21referred to a large number of decisions of this Court and held that the Court cannot legislate or direct the Legislature to enact a law. The SC said: “Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the t he legislature to enact the law in a particular manner.”

2.3.THE NOBLE OBJECTIVE OBJECTIVE BEHIND THE AMENDMENT :

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

21 22

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


24

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

Elections to Parliament, Parliament, to the Legislatures Legislatures of States and to the Offices of President President and Vice-President; Vice-President; the Election Commission. Commission.

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

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

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

Anr. , that,

23

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


25

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

It has been held in K.C. Gajapati Narayan Deo v. State of Orissa 24, and in Board of Trustees, 25

Ayurvedic and Unani Tibia College v. State of Delhi (now Delhi Admn.) , that

‘The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. legislature. The whole doctrine doctrine resolves itself into the question of the competency of a particular legislature to enact a particular particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. We will, therefore, concentrate on the legislative competence of Parliament to enact the impugned legislation. If Parliament has the requisite requisite competence to enact the impugned Act, the enquiry enquiry into the motive which which persuaded persuaded Parliament into passing the the Act would be of of no use at all.” all.”

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

25

26

K.C. Gajapati Narayan Deo v. State of Orissa 1954 SCR 1. Board of Trustees, Ayurvedic and Unani Tibia College v. State of Delhi ( Delhi Admn.), 1962 Supp (1) SCR 156. http://rajyasabha.nic.in. http://rajyasabha.nic.in. MEMORIAL ON BEHALF OF THE RESPONDENTS

26

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

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


27

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

S. 62 of the RP Act of 1951, as interpreted by the Patna High Court and the Supreme Court in 27

Jan Chaukidar (Peoples Watch) & Ors.'s case , had serious consequences and wide

ramifications leaving room for serious abuse. Therefore , keeping in view the exigency of the situation, the Parliament passed the impugned Amendment and Validation Act, 2013, and by virtue of it, a proviso was inserted .

27

Supra.


28

3. CONSTITUTIONALITY: 3.1.THERE IS ALWAYS A PRESUMPTION IN FAVOUR OF CONSTITUTIONALITY:

There is always a presumption in favour of o f constitutionality constitutionality of o f law made by the Parliament or a state legislature. “The U.S. Supreme Court enunciated the principle that there is a presumption in favour of the constitutionality of Statute, and the burden is always upon the person who attacks it to show that there has been a clear transgression transgre ssion of a constitutional

Const itution Bench of this Court in Charanjit Lal provision.” This view was adopted by the Constitution Chowdhury v. Union of India and ors

28

29 In Government of Andhra Pradesh v. P. Laxmi. Laxmi. Devi , it was observed by the SC that

every effort should be made by the t he courts to uphold the validity of a statute, as invalidating a statute is a grave step. In M/s. B.R. Enterprises v. State of U.P. and others, 30this Court observed : "Another principle which has to be borne in mind in examining the constitutionality constitutionality of a statute is that that it must be assumed that that the legislature legislature understands and appreciates the need of the people and the laws it enacts are directed directed to problems which which are made manifest by experience experience and that the elected representatives assembled in a legislature enact laws which they consider consider to be reasonable reasonable for the the purpose for which they they are enacted. enacted. Presumption is, therefore, therefore, in favour favour of the constitutiona constitutionality lity of an enactment”: enactment”:

vide Charanjit Lal Chowdhury v. Union of India31 , State of Bombay v. F.N. Bulsara32 , 33

Mahant Moti Das v. S.P. Sahi.

34 In State of Bihar and ors v. Bihar Distillery Distillery Ltd., a Constitution Bench of this Court

observed : 28

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

29

In Government of Andhra Pradesh v. P. Laxmi. Devi 2008 (4 ) SCR SCR 330 M/s. B.R. Enterprises v. State of U.P. and others, 1999 (9) SCC 700. 31 Supra. 32 State of Bombay v. F.N. Bulsara 1951 SCR 682. 33 Mahant Moti Das v. S.P. Sahi 1959 Supp (2) SCR 563. 34 State of Bihar and ors v. Bihar Distillery Ltd., 1997 (2) SCC 453. 30


29

"The approach of the Court, while examining the challenge to the constitutionality constitutionality of an enactment, enactment, is to start start with the presumption presumption of constitutionality. constitutionality. The Court should should try to sustain sustain its validity validity to the extent extent possible. possible. It should strike strike down the enactment enactment only only when it is not possible possible to sustain it. The Court Court should not approach approach the enactment enactment with a view view to pick holes or to search search for defects defects of drafting, drafting, much less in exactitude exactitude of language language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain sustain the validity/co validity/constitutio nstitutionality nality of the enactment. enactment. After all, an Act made by the Legislature Legislature represents represents the the will of the people people and that that cannot be lightly interfere interfered d with. The unconstitution unconstitutionality ality must be plainly and and clearly established before an enactment is declared as void." 35 The Supreme Court in State of M.P . v. Rakesh Kohli Kohli , held that

not concerned concerned with the wisdom wisdom or unwisdom, unwisdom, the justice justice or “ the Court is not injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs needs of the people whom whom they represent represent and they they are the best best judge of the community community by whose whose suffrage they they come into into existence.” existence.”

3.2.TEST FOR CONSTITUTIONALITY IS SATISFIED:

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

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

State of M.P. v. Rakesh Kohli 2012 (6) SCC 312. MEMORIAL ON BEHALF OF THE RESPONDENTS

30

authority, would depend on the ambit of the legislative power and limitation imposed thereon, as also on the mode of exercise of such power. In fact, the RP Act of 1951 was also enacted, by the Parliament by exercising such a power flown from Articles 246 and 327 read with Entry 72 of the List - I of the Constitution. The above leaves no room for doubt that the Constitution recognized the need for changes in law relating to elections from time to time and entrusted the Parliament with the responsibility as also the requisite power to bring in legislative measures as and when required in such respect, which would include the power to amend the existing law. 36

In Hari Prasad Mul Shankar Trivedi v. V.B. Raju , the Supreme Court held as under:

“Article 327 gives full powers to Parliament subject to provisions of the Constitution to make laws with respect to all matters relating to or in connection connection with election including prepar preparation ation of electoral electoral rolls.” rolls.”

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

36 37

Hari Prasad Mul Shankar Trivedi v. V.B. Raju 1974 (3) SCC 415. Supra.


31

3.3.INSTANCES OF VALID AMENDMENTS MADE TO OVERCOME JUDGMENTS :

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

Recently in 2015, the Supreme Court upheld the validity of S.26 (4) of Karnataka Agricultural Income Tax ( Amendment) Act , 1987 in Assistant Commissioner of Agricultural 39

Income Tax v M/s Netley ‘B’ Estate & Ors . The amendment had nullified a judgment passed

by the t he Karnataka High Court in L.P Cardoza & Ors. V Agricultural Income Tax Officer & 40

Ors .

Thus, introducing a legislation to alter/nullify a judgment is not a novelty.

3.4.INERPRETATION OF STATUTES: MISCHIEF RULE: 41 The mischief rule of interpretation originated o riginated in the Heydon’s case case , that has been

recognised by the Common Law Courts including this Hon’ble Court. It is a settled principle of interpretation used when an amendment is made to an Act, or when a new enactment is made, The court has the duty dut y to construe statutes by seeking the true intent of o f the makers of the act, which is presumed to be pro bono publico.

38

Mohammed Ahmed Khan v Shah Bano Begum 1985 (3) SCR 844 Assistant Commissioner of Agricultura l Income Tax v M/s Netley ‘B’ Estate & Ors Ors Civil Appeal 86178635/2003. 40 L.P Cardoza & Ors. V Agricultural Income Tax Officer & Ors. (1997) 227 ITR 421. 41 Heydon’s Case(1584) Case(158 4) 79 ER 637 39


32

42 In Raipur Development Authority v . Anupam Sakhari Sakhari Griha Nirman Samiti the SC took

into consideration the Heydon’s Rule of Interpretation that lays down the principle that the courts co urts must see:

o f the Act?  What was the law before making of re medy?  What was the Mischief or defect for which the law did not provide a remedy?  What is the remedy that the act has provided?  What is the Reason of the remedy?



Law before making the act - The SC of India conformed the judgment of the Patna HC in 43

Chief Election Commissioner v Jan Chaukidar by interpreting the word ‘elector’ in light

of sec 62 (5) , sec 4 and sec5 of the RP Act.



Mischief /defect for which the law did not provide a remedy – The judgment failed to

take note of the fundamental principle of criminal law that declares a clear distinction between an ‘accused’ and ‘convict’. An important statutory right to contest election and thereby play a role in the development of the nation was denied , merely on the ground of being ‘accused’ of an offence.



Remedy - Including a proviso to sec 62(5) of RP act which allows people whose names

are entered into the electoral roll , the right to contest elections , despite being in lawful custody.



Reasons for Remedy – To discourage any practices of vendetta politics and to confer the

right to contest elections to people under lawful custody , thereby upholding the principle of criminal jurisprudence.

42

Raipur Development Authority v. Anupam Sakhari Griha Nirman Samiti 2000(4) SCC 357.

43

Supra.


33

4.ACCUSED AND CONVICTS SHOULD NOT BE TREATED IN THE SAME FOOTING: 4.1 .INDIAN JURISPRUDENCE ON ACCUSED:

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

Supra.


34

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

In Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab45, B.K. Mukherjea, CJ, while referring to the scope of Article 74, observed as under “There is indeed a long distance between the accused “may have committed the offence” and “must have committed the offence” offence” which must be traversed traversed by the prosecution prosecution by adducing reliable and cogent evidence. evidence. In this regard, regard, 46

reliance has been placed on Narendra Narendra Singh v. State of M.P , Ranjitsing Ranjitsing 47

Brahmajeetsing Brahmajeetsing Sharma v. State of Maharashtra Maharashtra , S. Ganesan v. Rama 48

49

Ranghuraman Ranghuraman ,State of U.P. v. Naresh and Kailash Gour & ors. v. State of 50

Assam .The stage would affect the concept of democratic legitimacy and a person cannot become ineligible on the basis of perceived perceived seriousness seriousness of the crime without providing providing a protection protection despite despite the person person being otherwise otherwise eligible, eligible, efficient and capable of being chosen as a representatitive of the people.”

45

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


35

The impugned amendment , in fact , upholds this fundamental principle of criminal jurisprudence jurisprudence and the legislature legislature needs to be lauded for looking at the issue from an all round round perspective. perspective. 4.2.REPORTS :

The 18th Report presented to the Rajya Sabha on 15th March, 2007 by the Department-Related Parliamentary Standing Committee On Personnel, Public Gr ievances, Law And Justice on Electoral Reforms (Disqualification Of Persons From Co ntesting Elections On Framing Of Charges Against Them For For Certain Offences) elucidated that the Courts frame charges even when they are conscious co nscious that the case is ultimately bound to fail. Appreciation o f evidence at the stage of framing charges being more or o r less prohibited, prohibited, charges are still framed framed even when the court is convinced that the prosecution pro secution will never succeed. There are many glaring illustrations which are of common knowledge and any criminal lawyer can multiply instances of such nature. Hence the proposal cannot be accepted in its present form as the co untry has witnessed in the past misuse of MISA, TADA, TADA, POTA etc.” This being the state of affairs, the charges framed against a person can be unwarranted and thus there is every possibility possibility of denying a person of integrity , the right to to contest . Thus Thus the situation prior prior to the impugned amendment acted as a hurdle hurdle ; it denied people who are capable of becoming becoming good MPs and MLAs MLAs , a reasonable reasonable opportunity opportunity and further further proved to be a stumbling block in the journey towards Good Governance. STATISTICS OF UNDERTRIAL PRISONERS :

According to the Prison Statistics Statistics of India released released in the year 2012, the undertrial prisoners prisoners languishing in jail amounts to a mind-boggling number of 2, 54, 857 persons which is almost 66.2% of the total tot al prison population. Thereby with about 2/3rd of the prisoners being under-trial prisoners who may prove their innocence upon further investigation and trial, trial, denial of right to contest in elections to those in police police custody would tantamount to deprivation of the basic rights available to the t he citizens of the country.


36

ACQUITTAL RATE :

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

4.3.INTERNATIONAL OPINION :  S. 44(4)(ii) of the Australian Constitution puts a limitation on the member of the House

which travels beyond conviction in a criminal cr iminal case, for the said provision provides that any person who has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the t he law of the Commonwealth or of o f a State by imprisonment for one year or longer, would be incapable of being chosen or o r of sitting as a senator or a member of the House of Representatives. 4.3.1.UNITED NATIONS STANDARD MINIMUM RULES FOR TREATMENT OF PRISONERS:

In fact, Rule 84(2) of the United Nations Nat ions Standard Minimum Rules for Treatment of Prisoners mandates that prisoners who have not been convicted should be presumed as innocent and treated as such. 84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained detained either either in police police custody or or in prison custody custody (jail) (jail) but have not yet been been tried tried and sentenced, sentenced, will be referred referred to as "untried "untried prisoners" prisoners" hereinafter hereinafter in these rules. rules. (2) Unconvicted prisoners are presumed to be innocent and shall be treated as such. (3) Without prejudice to legal rules for the protection of individual liberty or prescribing prescribing the procedure procedure to be observ observed ed in respect respect of untried untried prisoners, prisoners, MEMORIAL ON BEHALF OF THE RESPONDENTS

37

these prisoners prisoners shall benefit benefit by a special special regime regime which is describ described ed in the following rules rules in its essential essential requirements requirements only. only. 4.3.2.INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS :

The jurisprudence is based on innocence of the accused until unt il he is proved guilty which is in tune with Article 14(2) of the International Covenant on Civil and Political Rights and it cannot be brushed aside. Article 14 2. Everyone charged charged with with a criminal offence offence shall shall have the right right to be presumed innocent innocent until proved proved guilty according according to law. law.

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


38

PRAYER

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

 Declare the Lindiyan Representation of Citizen’s (Amendment and Validation ) Act 2013

as constitutional ,  And dismiss the Petition

And pass such orders proper in the circumstances of the case with costs, which this Court may deem fit, in the light of equity, justice and good conscience for which the counsel may forever pray.


39

7th Saquib Rizvi Moot Respondent Memorial

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