APPELLANT SIDES

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the appellant in the case concerning Dr M.S Govinda
v . Hon’ble Speaker Lok Sabha The counsel for the appellants has three contentions to submit
before this Hon’ble Court. Hope the lordship is well versed with the facts of the case. With your
lordships’ kind permission may the counsel move on to her contentions.
The counsel would like to content that the Supreme Court of Indiana has the jurisdiction to
entertain the present petition. In India, where there is a written Constitution, the balance of power
is maintained by the Hon’ble Supreme court under Doctrine of Judicial Review. The ultimate
Say will come from Superior Court as to the True Nature, Extent and Limit of the power of
parliament. As, the Hon’ble Supreme Court is the Final interpreter of the Constitution and
Parliamentary Privileges is a Constitutional provisions, hence it is open to Judicial Review.

Also it was held by the Apex court that, “Existence of power of expulsion is a matter of
Interpretation of the constitutional provisions, in particular Article 105(3) & 194(3), on which
the final arbitrator is the present court and not the parliament. In the case of Gross illegality or
violation of constitutional provisions, the court has a jurisdiction to examine the procedure
adopted for the same” as held in Raja Ram Pal V. Hon’ble Speakers , Lok Sabha & Ors

It was also held, in a case of C.Subramanian V. Speaker, Madras Legislative assembly, that the
order of legislature to commit a person for contempt cannot be conclusive. The order can be
challenged before high courts.

In the case of State of Karnataka V. Union of India, the Constitutional bench consisting seven
judges, held that “If any question of Jurisdiction arises as to whether a matter falls within the
privileges of the house or not, it has to be decided by the ordinary courts in appropriate
proceedings. So, it is clear that the present court has power of judicial review in the matter of
expulsion of a member from either house of parliament.

With these humble submissions, the counsel would like to call Mr__ , to deal with the other
contentions.Much obliged your lordship.

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2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue
of the speaker while deciding the matter under the 10th schedule does not satisfies the
requirement of independent adjudicatory machinery. In this case, the respondent held Dr.
Govinda liable for disobeying the whip issued by the party leader and the respondent cancelled
Dr. Govinda’s Lok Sabha membership. It is humbly submitted that the speaker while deciding
the matter under the 10th schedule satisfies the requirement of independent adjudicatory
machinery.

Termination of membership can be effected only in a manner laid down under Articles 101 &
102 of the Constitution of India. These articles are the expressed provisions in the Constitution,
as to when person gets disqualified to be member of either House of Parliament. These articles
are exhaustive in regard to modes of cessation of membership of Parliament. In Manilal Singh Vs
Dr. H.Borobabu Singh determining the question of disqualification a different situation arose,
when the Supreme Court quashed the Manipur Speaker Mr. Borbabu’s decision of disqualifying
seven legislators but the Speakers refused to be bound by the Supreme Court’s decision. The
crisis was somewhat resolved when the centre at the instance of the Supreme Court virtually
arrested the Speaker, Mr. Borbabu Singh and produced him before the Supreme Court and the
Supreme Court dropped the Contempt proceedings against him.

THE SPEAKER IS NOT AN INDEPENDENT AND IMPARTIAL ADJUDICATORY

MACHINERY

It is humbly submitted before the court that the speaker is never independent and
impartial because most of the times speaker has been appointed by the ruling party and always
depend upon the continuous majority of the house.

In kihoto hollohan v zachillu case, it was held that the speaker does not stand the test of
independent and impartial authority.

Further held that the investiture of the adjudicating jurisdiction in the speaker would vitiate the
provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore
denies the imperative of independent adjudicatory machinery.

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The speaker is elected and hold office on the support of majority party after their elections to the
office of the speaker of chairman. In order to the speaker to be independent he should resign
from the party so that there is no bias but this is not the case here and hence, speaker could not be
the final adjudidatory authority.

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3RD SPEAKER- Your lordship, It is submitted that the 10th schedule of the constitution
prohibiting honest and genuine dissent deserves to be held unconstitutional and that section 2 (b)
of 10th schedule violates parliamentary privileges provided under article 105 of constitution.

One of the grounds of defection under the Tenth Schedule is that voting or abstains from voting
contrary to any direction given by the party leader. Besides the freedom of speech and
expression, the Constitution of India provides for free voting in parliament. The opinion of the
courts is that voting by ordinary citizen is a part of speech on the ground that it is a tool of
expressing feelings, sentiments, ideas or opinions of an individual. The right of an individual
citizen to cast his vote to any candidate of his choice is nothing but a freedom of voting, which is
essential for parliamentary democracy. In India, while the right to vote is a statutory right but the
freedom to vote is considered a facet of the fundamental right guaranteed under Article 19 (1) (a)
of the Constitution of India. Extending this finding to voting in Parliament, voting becomes an
essential element of the freedom under Article 105(1). Therefore, voting by members of
Parliament or Legislature of a State should not be restricted by Paragraph 2(1) (b) of the Tenth
Schedule of the Constitution.
Paragraph 2(1)(b) of Schedule X of the Constitution of India seeks to address defection by
preventing parliamentarians from defying the direction of the party whip during times of voting.
The wide phraseology of the provision has led to misuse of this power, which has resulted in a
chilling effect on the freedom of speech of the members of the house. The provision confuses
dissent for defection and thereby, stifles a vital cog of parliamentary democracy.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be maintainable, Hold
the speaker not to be an independent adjudicatory machinery, Hold the 10th schedule to be
unconstitutional, Hold that section 2 (b) of the 10th schedule violates parliamentary privileges
under Article 105.

Also, the Court may pass any order, writ, direction that it deem fit in the interest of justice,
equity and good faith. Thank you, your lordship.

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RESPONDENT SIDE

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the respondent in the case concerning Dr M.S
Govinda v . Hon’ble Speaker Lok Sabha The counsel for the respondents has three
contentions to submit before this Hon’ble Court. Hope the lordship is well versed with the facts
of the case. With your lordships’ kind permission may the counsel move on to her contentions.

It is submitted that The speaker while giving the decision disqualifying Mr Govinda for not
following the party whip has acted within the four corners of law and not passed the order by
virtue of any mala fide or considering any irrelevant facts or violating the principles of natural
justice. Thus due to the virtue of the finality clause in the 10th schedule the supreme court doesn’t
have jurisdiction to entertain the present petition. Also since the principle of Stare Decisis is
applicable due to the presence of other similar cases, the case should not be entertained.

A house has power to punish a person, whether it’s member or outsider, for its contempt or
breach of privileges. A house can impose the punishment of admonition, reprimand or
suspension, from the service of the house for the session, fine and imprisonment

That the speaker has the finality of decision making in petitions of disqualification Para 6 of
Schedule X specifically mentions the speaker’s decision is final when any question arises as to
whether a member of parliament has become subject to disqualification. In the present case, the
speaker has acted within the powers granted to him under Part 6 of the 10th schedule.

Also, attention needs to be paid to the fact that in spite of giving a show cause notice to the
petitioner and another member, who remained absent on the said day of voting for which the
whip was issued to justify the reason for their absence. The other member, namely, Mr Ramlal
justified his absence by producing the needed documents, but Mr Govinda did not do the same.

Considering the facts that the speaker has followed all the procedural nuances and has acted
within the four corners of law and that he has also not violated any provisions laid down in the
Kihoto Hollohan case, the petitioner cannot bring the speaker’s judgement into question and thus
the court has no jurisdiction to entertain the matter

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With these humble submissions, the counsel would like to call Mr__ , to deal with the other
contentions. Much obliged your lordship.

2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue
that While acting as a judge and deciding the case of disqualification of the member, the speaker
has acted within his powers. He has followed the rules laid down in the 10th schedule and
disqualified the member. The office of speaker is held in very high regard and it’s considered to
be the speaker’s role to be unbiased in such dealings. Thus the speaker has satisfied the
requirements of an independent adjudicatory machinery.

The speaker is held in very high esteem and respect due to inherent and historical reasons in the
concept of parliamentary democracy. Once a person is elected as a speaker, the expectation is
that he is above the nuances of parties and politics. While deciding the matter of such a
disqualification at hand he holds the scale of justice evenly irrespective of the two parties in front
of him. Everybody knows that in spite of his drawbacks and shortcomings he will intentionally
do no justice or show partiality, such a person is naturally held in respect by all.

The speaker while deciding the current matter under the 10th schedule, has acted in accordance
with the rules of schedule 10. Under para 6, the final authority to take a decision on the question
of disqualififcation of a member of the house rests with the speaker or chairman of the house.
Their role is only in the domain of ascertaining the relevant facts. Once the facts gathered or
placed show that a member of the house has done any such act which comes within the purview
of para 2 (1) (2) or (3) of the schedule, the disqualification will apply and the chairman or the
speaker of the house will have to make a decision to that effect. The respondent, as stated above,
holds an office of high importance and one which is traditionally known to be unbiased and
impartial.

Thus it can be reasonably construed that he has indeed satisfied the conditions required to be an
independent adjudicatory machinery and has also acted within the scope given by it.

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3RD SPEAKER- Your lordship, the counsel is here to deal with the contentions that the 10th
schedule and section 2 (b) of the 10th schedule does not violates Parliamentary Privileges
provided under Article 105 of the constitution. The intent of creating the 10th schedule in 1985
and the insertion of Article 105 in the constitution can be seemingly similar but actually are very
different and thus the two provisions run parallel to each other. Also the two at no point cross
over as one talks about defying party whips in crucial time whereas the other gives the members
of parliament privileges to speak freely in the legislature. Thus they are not violative and should
not be struck down. The 10th schedule was introduced to curb evil political defections and give
government stability. It does not prohibit members dissent. The disqualifications take place on
disobeyance of party whips, which are issued only on matters of utmost importance or when the
fate of the government hangs in balance. Thus the 10th schedule doesn’t deserve to be declared as
unconstitutional.

The allegations regarding the violation of a constitution provision should be specific, clear and
unambigious and it is for the person who impeaches the law as violative of the constitutional
guarentee to show that the particular provision is infirm for the reason stated by him.

So far as the right of a member under article 105 is concerned, it is not an absolute one and has
been made subject to the provisions of the constitution and the rules and standing orders
regulating the procedure of parliament. The framers of the constitution, therefore never intended
to confer any absolute right of freedom of speech on a member of parliament and the same can
be regulated or curtailed by making any constitutional provision, such as the 52nd amendment.
The provisions of para 2(b) cannot, therefore be termed as violative of the provisions of Article
105 of the constitution. The 10th schedule was introduced to curb evil political defections and
give government stability. It does not prohibit members dissent. The disqualifications take place
on disobeyance of party whips, which are issued only on matters of utmost importance or when
the fate of the government hangs in balance. Thus the 10th schedule doesn’t deserve to be
declared as unconstitutional.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be not maintainable,
Hold and declare this petition to be rejected, Hold the speaker to be an independent adjudicatory

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machinery, Hold the 10th schedule to be constitutional, Hold that section 2 (b) of the 10th
schedule does not violate parliamentary privileges under Article 105.

Also, the Court may pass any order, writ, direction that it deem fit in the interest of justice,
equity and good faith. Thank you, your lordship.