In the Honorable High Court of Delhi

At New Delhi, India

Writ Petition No: ****/ 2010

_________________________________
In the Matter of

Mr. Manohar………………...……………..... Petitioner

Versus

Hon’ble Speaker, Lok Sabha & Ors…......... Respondent

Respectfully Submitted in the Hon’ble High Court

- Memorial on Behalf of the Petitioner -

PROF. R.U. SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
 TABLE OF CONTENT

1. INDEX OF AUTHORITIES..............................................................2- 4

a) Acts/ Statutes........................................................................................... 2
b) Books....................................................................................................... 2
c) Internet Sources........................................................................................ 2
d) List of Cases............................................................................................. 3

2. STATEMENT OF JURISDICTION.................................................... 5

3. SYNOPSIS OF FACTS.......................................................................... 6

4. ISSUES RAISED.....................................................................................7

5. SUMMARY OF ARGUMENTS.......................................................... 8

6. BODY OF ARGUMENTS...............................................................10- 19

a) The court has the power of Judicial review in the matter of expulsion... 10
b) The Expulsion by the Speaker is Unconstitutional ................................. 11
c) The Expulsion of the member violates his Fundamental Rights and it is
against the principle of natural justice..................................................... 15
d) The allegations made by outsiders are not acceptable............................. 18

7. Prayer ..................................................................................................... 20

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 INDEX OF AUTHORITIES

ACTS/STATUTES:

 CONSTITUTION OF INDIA,1950

 RULES OF PROCEDURE and CONDUCT OF BUSINESS in LOK SABHA

BOOK:

 JAIN M.P., INDIAN CONSTITUTIONAL LAW, GURGAON, LEXIS NEXIS

BUTTERWORTHS WADHWA NAGPUR, 2010, SIXTH EDITION

 MASSEY I.P., ADMINISTRATIVE LAW, LUCKNOW, EASTERN BOOK

COMPANY, 2008, SEVENTH EDITION

 SHUKLA V.N., CONSTITUTION OF INDIA, LUCKNOW, EASTERN BOOK

CORPORATION, 2008, ELEVENTH EDITION.

 KASHYAP SUBHASH, OUR PARLIAMENT, NEW DELHI, NATIONAL BOOK

TRUST, REPRINT 2004 EDITION.

INTERNET SITES:

 www.loksabha.nic.in
 www.manupatra.com
 www.indlaw.com

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 LISTS OF CASES

1. Anderson v. Dunn------------------------------------------------------------------------------
19 (1821) 6 Wheat.204, 5.L.ed.242

2. C.Subramaniam v. Speaker, Madras Legislative Assembly------------------------------10

A.I.R 1969 MAD 10

3. D.K.Yadav v. JMA Industries --------------------------------------------------------------- 15

(1993) 3 SCC 259

4. Doyle v. Falconer------------------------------------------------------------------------------ 14
(1865-67) LR 1 PC 328

5. Election Commission v. Subhramaniam Swamy----------------------------------------- 15

A.I.R 1996 SC 1810

6. Fenton v. Hampton---------------------------------------------------------------------------- 14
(1858) 11 MOO.PCC.347

7. H.L.Trehan v. Union of India---------------------------------------------------------------- 17

(1989) 1 SCC 764

8. Hardwarilal v. Election Commissioner----------------------------------------------------- 14

ILR 1997(2)P&H

9. K.I.Shephard v. Union of India-------------------------------------------------------------- 16

(1989) 4 SCC 431

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 10. Keilley v.Crason------------------------------------------------------------------------------- 14
(1842) 4 MOO.PC 63

11. Ollega Tellis v.Bombay Municipal Corporation------------------------------------------- 15

A.I.R 1986 SC 180

12. P.V.Narshimha Rao v State------------------------------------------------------------------ 19

A.I.R 1998 SC 2120

13. Raja Ram Pal v. Hon’ble Speaker & Ors------------------------------------------ 10, 12, 17
(2007) 3 SCC 184

14. Shekhar Ghosh v. Union of India------------------------------------------------------------ 17

(2007) 1 SCC 331

15. State of Bihar v. Lal Krishna Advani--------------------------------------------------------16

A.I.R 2003 SC 3357

16. State of Karnataka V. Union of India------------------------------------------------------- 11

(1978) 2 SCR 1

17. In Re UP Assembly Case, Special Ref.No.1 of 1964--------------------------------- 13, 14

(1965) 1 SCR 413

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble High Court of Delhi Invoking writ petition under
Article 226 of the Constitution of India.

The Petitioner most humbly submits that the same is maintainable.

All of which is urged in the written submission and is submitted most respectfully

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 STATEMENT OF FACTS

Mr. Manohar further referred to as Petitioner, after doing a good job as a chairperson of
Sundernagar municipal corporation, got elected as the member of the 14th Lok Sabha from the
same Parliamentary Constituency after defeating Mr. Ramu.

ii

Thereafter, a series of allegations got started by Mr. RAMU to take revenge of his defeat and
he made an allegation that the petitioner had amassed assets disproportionate to his known
source of income. He informed the same allegation to the Speaker and advised the Hon’ble
Speaker to investigate the matter through a House Committee. After this allegation
surprisingly Mr. Bahadur, a voter in the petitioner’s constituency made another allegation that
he had given a large sum of money to the petitioner for raising questions in the House. Mr.
Samu, a third person alleged that he also gave a large sum of money to the petitioner for
voting against the confidence motion.

iii

Thereafter Hon’ble Speaker referred the said allegations to the Privilege Committee for
investigation and as per the recommendation of the privilege committee Hon’ble Speaker
expelled the Petitioner.

iv

Feeling aggrieved by such decision, petitioner has approached the present High Court
claiming that his expulsion is unconstitutional and justice should be done for the same.

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 ISSUES RAISED

I. WHETHER THE EXPULSION OF THE MEMBER OF LOK SABHA IS

SUBJECT TO JUDICIAL REVIEW OR NOT?

II. WHETHER THE EXPLUSION OF A MEMBER OF LOK SABHA BY

HONOURABLE SPEAKER IS UNCONSTITUTIONAL?

III. WHETHER THE ACTION OF HONOURABLE SPEAKER VIOLATES THE

FUNDAMENTAL RIGHTS OF THE PETITIONER AND PRINCIPLES OF
NATURAL JUSTICE?

IV. WHETHER THE ALLEGATIONS MADE ON THE MEMBER BY THE

OUTSIDERS ARE ACCEPTABLE OR NOT?

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 SUMMARY OF ARGUMENTS

I) The court has the power of Judicial review in the matter of expulsion:

Indian constitution is the written constitution and the supremacy of the constitution is the
essence of our democracy. For the application of function by the established institutions, we
also adopt separation of power. As the guardian of the constitution, Supreme Court maintains
the balance of power under the doctrine of judicial review.

II) The Expulsion of the member of Lok Sabha by the Speaker is

unconstitutional:

A. Speaker alone can’t take decision regarding expulsion of member

B. Expulsion is inconsistent with the constitutional provisions i.e. it violates Article

101,102 and 103 of the constitution.

C. Power of expulsion is not inherent in Indian Legislature as unlike the House of

Commons, they don’t possess the power of self composition and are not the court of
record.

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
III) THE Expulsion of the member violates his Fundamental Rights and the

principle of natural justice:

A. There is violation of Article 21 of the Constitution of India.

B. There is no pre-decisional hearing

C. There happened no fair trial.

IV) The allegations made by outsiders on the petitioner are not acceptable

A. A member of house only may raise a question of Breach of Privileges.

B. The allegations made against the petitioner are politically motivated.

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
 BODY OF ARGUMENTS

I) WHETHER THE EXPULSION OF THE MEMBER OF LOK SABHA IS

SUBJECT TO JUDICIAL REVIEW OR NOT?

The Court has Power of Judicial review in the matter of expulsion.

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”. 1

It was also held, in a case of C.Subramanian V. Speaker, Madras Legislative

assembly,2 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

1
Raja Ram Pal V. Hon’ble Speakers , Lok Sabha & Ors (2007) 3 SCC 184
2
A.I.R 1969, Madras , 10
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
matter falls within the privileges of the house or not, it has to be decided by the ordinary
courts in appropriate proceedings.3

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.

II) WHETHER THE EXPLUSION OF A MEMBER OF LOK SABHA BY

HONOURABLE SPEAKER IS UNCONSTITUTIONAL?

The Expulsion of the member of Lok Sabha by the Speaker is

Unconstitutional.

II.1) Speaker alone can’t take the decision regarding the expulsion of a member.

When any matter regarding Breach of Parliamentary Privileges by a member is referred to the
Privilege committee and when committee submit’s it’s report to the same house then it has to
be put before the members of the house for discussion and then House decides as to whether
the report should be accepted or rejected after reviewing the recommendations made by the
committee after having discussion on the same in the house.

As per Rule 315 of RULES OF PROCEDURE and CONDUCT OF BUSINESS

in LOK SABHA 4 after the presentation of the reports the chairman or any other member of
the committee or any other member may move that the report be taken into consideration,
where upon the speaker may put the question to the house. A debate not exceeding half an
hour may also be permitted by the Speaker. The House may agree or disagree or agree with

3
(1978) 2 SCR 1
4
Rules made under exercise of article 118 of Indian constitution.
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
amendments with the recommendations contained in the report. If the House agrees to the
recommendations then only same recommendations can be implemented.

In the present case, Hon’ble Speaker didn’t put the report of the Committee
before the House and hence his act is violation of Established Principles of Law. He took the
decision alone, without taking the consent of the House. Hence it is a breach of the Rule
formed by the House itself and hence this makes the act of the Hon’ble Speaker i.e.
Expulsion of the member as Illegal and Unconstitutional.

II .2) Expulsion is Inconsistent with the Constitutional provisions:

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.

As per Justice Raveendran,” There is no power of expulsion in the Parliament

either inherent or traceable to article 105(3). Expulsion by the House will be possible if
Article 101 & 102 of Constitution are suitably amended or if a law is made under article
102(1) (e) enabling the House to expel a member found unworthy or unfit of continuing as a
member.”5

If such a power has to be given it has to be specifically mentioned. In the

above mentioned case, Raveendran J. found that expelling a member was violation of Article
101, 102 & 103 of the Constitution. So, in the light of above findings the expulsion seems to
be violation of Constitutional provisions in the present case also.

5
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors(2007) 3 SCC 184, Para 447
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
II.3) Power of expulsion is not inherent in Indian Legislature:

All the powers, privileges or immunities, as vested on the date of commencement of

Constitution of India, in the House of Commons of the Parliament of UK had not been
inherited by the legislature in India under Article 105(3) of the Constitution. Hence all the
Powers and Privileges possessed by the House of Commons can’t be claimed by the House of
Indian Parliament.6

Power and Privileges of expulsion was exercised by the house of Commons as a

facet of its power of self composition, which it expressed in three ways:

i) By the order of new writes to fill vacancies that arises in the commons in the
Course of Parliament;
ii) By the trial of Controverted Elections
iii) By determining the qualifications of its members in case of doubts.7

The legislatures established under the Constitution of India do not have the power
of self composition.8

Since power of self composition is not given to Indian Legislatures, it didn’t

inherit the power to expel its members under Article 105(3) as expulsion affects the
composition of the House.

Expulsion is necessarily punitive in nature rather than remedial and such power vested in the
House of Commons as a result of its power to punish for contempt in its capacity as a High
Court of Parliament. But this power is unavailable to the Indian Legislature because the
Indian Legislature can’t claim to be Court of Record.

6
In Re UP Assembly Case, Special ref. no. 1 of 1964.(1965)1 SCR 413
7
May Parliamentary Practices (16th ed.p.175) refd. In UP Assembly case, Pg. 448
8
Supra: 6
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
“The House and indeed all the legislative assembly in India never discharged any judicial
function and constitutional background doesn’t support the claim that they can be regarded as
Courts of record in any sense.”9

So, the Indian legislature has no vast power to punish for its contempt. It has only a limited
power to do so. It can only be done for their self protection. “There is distinction between the
punitive powers of Contempt and Self- Protection power.” 10

“It is necessary to distinguish between a power to punish for contempt, which is judicial
power and a power to remove any obstruction offered to the deliberations or proper action of
a legislative body during its sitting, which last power is necessary for self preservation. The
bodies other than the House of Commons can only claim the protective power of the
House.”11

Hence the Parliament can only claim protective, limited power to punish for contempt and
this power never includes power of expulsion as expulsion is not necessary for the protection
of the House. Hence the power to expel a member for its contempt cannot be claimed by the
House of Parliament under Article 105(3).

In the case of Hardwarilal v. Election Commission12, Full bench of Punjab &

Haryana High Court held that legislature has no power to expel its member from the House.

9
In Re UP Assembly Case, Special Ref.No. 1 of 1964.(1965)1 SCR 413
10
Kielley v. Carson (1842)4 MOO.PCC63, Fenton v. Hampton(1858)11MOO.PCC347, Doyle v.Falconer(1865-67)
LR 1 PC 328
11
ibid
12
ILR1997(2) P& H.269
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
 Further in the Election Commission v. Subramanian Swamy13, it was held that
in case of a Member of Parliament/ State legislature, there exist no such authorities capable of
removing him.

Hence in the light of all the above mentioned facts and cases on the point, it is crystal clear
that action of the Speaker is not justified. The expulsion by the Speaker of member of Lok
Sabha is illegal and unconstitutional.

III) WHETHER THE ACTION OF HONOURABLE SPEAKER VIOLATES THE

FUNDAMENTAL RIGHTS OF THE PETITIONER AND PRINCIPLES OF
NATURAL JUSTICE?

The expulsion of the member violates his fundamental rights as well as there is violation
of Natural Justice.

III. 1) There is a violation of Fundamental rights in the present Case:

The Rights to livelihood of the member is violated. The rights to livelihood are contained in
Article 21.14 The easiest way of depriving a person of his rights to life would be to deprive
him of his means to livelihood.15

In the present case, the expulsion of the petitioner has resulted into the loss of
his livelihood as for a member of parliament; his career depends on public image. If his
image is disrepute in eyes of his electorates, then he can’t survive. Here the expulsion as a
13
AIR1996 SC 1810(Quoted in Jain. M.P., Indian constitutional Law, 6 th ed.2010, P. 94, Foot Note No.61
14
Ollega Tellis V. Bombay Municipal Corp A.I.R 1986 SC 180; D.K.Yadav V. JMA Industries (1993) 3 SCC 259
15
Ibid, Ollega Tellis Case
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
result of allegation has diminished the public image of the petitioner & has resulted into loss
of livelihood.

Also, there is violation of Rights to Reputation. Right to Reputation is a facet of the right to
life of a citizen under Article 21.16

In the present case the allegation made on petitioner, resulting in his illegal expulsion has
vitiated his Reputation and Public image.

III. 2) Violation of Natural Justice.

a) There was no pre-decisional hearing.

The member was not given a chance of hearing before the investigation. The notice was
served to him after the recommendation has been made by the committee. Hence there was a
pre-determination of decision in the mind of Hon’ble Speaker and hence the issuance of
notice after that was nothing but mere a formality.

It is held by the Supreme Court that “It is common experience that once a
decision is taken there is a tendency to uphold it and the re-presentation may not yield any
fruitful result. Therefore even in cases of emergent situation, pre-decisional hearing is
necessary”17

Also it was observed by Hon’ble Supreme court , “The Post decisional

hearing does not sub serve the rules of Natural Justice. The authority who embarks upon a
post-decisional hearing will normally proceed with a closed mind, and there is hardly any

16
State of Bihar V. Lal Krishna Advani A.I.R 2003 SC 3357
17
K. I Shephard V. Union of India (1987) 4 SCC 431
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
chance of getting a proper consideration of representation as such a post decisional
opportunity.” 18

It has also been recently held by Hon’ble Supreme court, that pre-decisional
hearing is warranted by law. Post decisional hearing is not proper especially where authority
has made up his mind and the result is a foregone conclusion. 19

b) There is No fair Trial.

In the present case, the petitioner was not given an opportunity to defend himself by council
or to cross examine witness. This was against the convention of the house.

As it was said in the 7 th Lok Shabha, while undoing the resolution adopted by the 6 th Lok
Sabha on 19th December, 1978 regarding the matter of expulsion of Mrs. Indira Gandhi that, “
Earlier in the Mudgal Case, we have a Precedent. The committee of the house gave an
opportunity to the excused. He was allowed to service of a counsel, to cross examine
witnesses, to present his own witness and to head his defence through his counsel. This is not
given to Mrs. Indira Gandhi. This clearly indicates the motivations in the Privilege
20
Committee.”

Hence, the 7 th Lok Sabha on 7th May, 1981 adopted the resolution making in
effective the expulsion of Mrs. Indira Gandhi on the grounds of violation on the well
excepted principles of Law of parliamentary privileges.

18
H. L. Trehan V. Union of India (1989) 1 SCC 764
19
Shekhar Ghosh V. Union of India (2007) 1 SCC 331
20
Quoted: Raja Ram Pal V. Hon’ble Speaker, Lok Sabha 2007 (3) SCC 184, Para 192 (7).

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
Similarly in the present case also, the expulsion of the petitioner is violation of Principles of
Law of parliamentary privileges and precedent.

IV) WHETHER THE ALLEGATIONS MADE ON THE MEMBER BY THE

OUTSIDERS ARE ACCEPTABLE OR NOT?

The Allegations made on the members by the outsiders is not maintainable.

IV.1) A member only may raise a question of Breach of Privileges.

As per Rule 222, of Rules of Procedural and conduct of business in Lok Sabha, “A member
may, with the consent of the speaker, raise a question involving a breach of privileges either
of a member or of the house or of a committee thereof.”

In the present case, since the allegations are made by the outsiders and not a member of the
house, hence it can’t be accepted.

IV. 2) The allegations seems to be politically motivated.

The allegations made does not seems true rather politically motivated, as Mr. RAMU was a
candidate against Petitioner and had lost elections. So, his allegations are not only to trouble
Petitioner and disrepute him as well as to advertise him as a corrupt person in the eyes of the
voters. So, that Mr. RAMU can get political profits. The other allegation also seems to
politically motivated and thus is a chance, that it may be directed by Mr. RAMU to take

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -
revenge of the defeat faced in the general elections. So, the allegation seems to be false and
hence can’t be accepted.

Also the allegations for taking money to vote against confidence motion does
not make any difference , as it was held by Hon’ble Supreme Court that, “ A member is
immune from prosecution if he receives money as a “ Motive or Reward” for voting against a
confidence motion, and nexus between bribe and confidence motion is explicit” 21. Therefore,
Petitioner is not subject to Prosecution.

Also, if taking money by Petitioner amounts to bribe then, the person who bribed must also
be punished, as it was held in the case of Anderson V. Dunn. 22, that the House had power to
punish a private person for an attempt to bribe a member.

Since the Hon’ble Speaker has not punished the persons, who are claiming to bribe the
petitioner, it raises severe doubt on the act of the Speaker in the present case.

Hence on the bases of above arguments, the present issued raised are not maintainable.

21
P.V. Narshimha Rao v. State A.I.R 1998 SC 2120
22
(1821) 6 Wheat, 204. 5. L. ed. 242 (Quoted in Seervai’s Constitutional law of India, P. 4178
PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010
- Memorial On Behalf Of Petitioner -
 Prayer

Wherefore, in the light of the facts stated, arguments advanced and authorities cited,

the petitioner, most humbly prays before the Hon’ble court, to be graciously pleased to

hold adjudge and declare that:

1) The Expulsion of the petitioner is Illegal and unconstitutional; and

2) The Petitioner should continue to be the Member of the Parliament; or

3) To Pass any other order which the Hon’ble court may deem fit in the light of
Justice, Equity and Good Conscience.

All of which is most humbly prayed and most respectfully submitted.

Date: S/d________________

(Counsel for Petitioner)

PROF. R.U.SINGH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2010

- Memorial On Behalf Of Petitioner -