-Arguments Advanced-

ARGUMENTS ADVANCED

1. THE WRIT PETITION A FILED BY THE PETITIONER IS MAINTAINABLE

It is submitted that the writ petition A filed by the Petitioner, is maintainable under Article
32, of the Constitution. This is because, firstly, it is argued that Art.19 is horizontally
applicable. [1.1] Secondly, it is the positive duty of the obligation of the state to prevent
violation of fundamental rights, even if it is done by non-state actors. [1.2] Thirdly, the
availability of an alternative remedy does not prevent the filing of a writ petition under
Article 32. [1.3] Lastly, where both state and non-state actors are defendants, the distinction
between private and public litigation blurs. [1.4]

1.1. Horizontal Applicability of Article 19

It is submitted that horizontal application expands to Art. 19 of the Constitution. Hence, writ
is maintainable. Though the fundamental rights provided under the Constitution impose
negative obligations on state, so that the rights are not encroached, and hence are actionable
only when the state infringes them. 1 But, this simply does not imply that the encroachment of
same by private bodies, bars the duty of the state to act in a way to prevent these violations,
by employing relevant measures, regardless of the individual's ability to seek legal
enforcement.2

There have been instances where the court has gone beyond, just applying the fundamental
rights against the state, to include private entities. 3 The court ruled that fundamental rights,
such as the right to health for employees, which form an integral part of right to life under
Article 21,4 are applicable to private employers as well.5 The court has awarded compensation
and damages against private entities for violating fundamental rights, in cases involving
infringement of rights under Art.14,6 and 217.8

1
People'S Union For Democratic v. UoI & Others, 1982 AIR 1473, 1983 SCR (1) 456.

2
Vishaka v. State of Rajasthan, (1997) 6 SCC 24.

3
People'S Union For Democratic v. UoI & Others, 1982 AIR 1473, 1983 SCR (1) 456.

4
The Constitution of Kanchenjunga, 1950, Art. 14.
5
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42, ¶24.

6
The Constitution of Kanchenjunga, 1950, Art. 14.
7
The Constitution of Kanchenjunga, 1950, Art. 21.
8
Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
 -Arguments Advanced-

Further, it is established that fundamental rights, especially as given under Art. 14, 19 and 21,
are not mutually independent and exclusive.9 A law that curtails personal liberty under Art.
21 must also align with the scrutiny of rights under Art. 19, depending on the case. 10
Additionally, it should be open to evaluation based on the principles of Art. 14. 11 Essentially,
the notion of "reasonableness" must be considered in the aspects as outlined in Art. 19, while
taking into account the influence of Art. 14 on 21. 12 Therefore, as a clear dependence of the
three articles can be established, the fact that Art. 14 and 21 have been applied horizontally,
opens the same opportunity for Art. 19.

Additionally, even in foreign jurisprudence the courts have held that the rights protecting the
freedom of speech and expression have a horizontal effect. 13 Even human rights under
international law, provide a variety of provision which guarantee the citizens protection
against violation of fundamental rights from non-state actors.14

In cause, the suspension of account of the Petitioner by the Respondent, 15 is an infringement

of the rights provided under Article 19(1)(a)16. This must involve the application of the
'horizontal application' concept, extending the right to actions by private companies. This
aligns with the Constitution's aim of safeguarding personal rights and societal welfare from
actions of non-state actors.

Hence, it is established that the principle of horizontal application must be applicable to

Art.19 of the Constitution.

1.2. State’s Positive obligation to prevent violation of fundamental rights

It is submitted that the state has a positive obligation to prevent the infringement of
fundamental rights, whether committed by its own entities or by private actors. This

9
Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591.

10
Maneka Gandhi v. Union of India, (1978) 1 SCC 248, ¶ ¶4,5,6,7.

11
Id.

12
Id.

13
Khumalo v Holomisa (2002) ZACC 12.

14
Such as the International Covenant on Civil and Political Rights (ICCPR).

15
Moot Proposition, ¶24.

16
The Constitution of Kanchenjunga, 1950, Art. 19(1)(a).
 -Arguments Advanced-

responsibility is clear in circumstances when the lack of explicit law resulted in constitutional
rights violations (Art. 14,17 19,18 and 2119).20 The courts have recognised that the state must
implement rules, this could also be seen in cases where court issued orders in cases of non-
compliance of such set criteria. 21 In addition, worries about privacy transcend beyond the
state, since certain non-state entities may jeopardise this basic right. 22 As a result, the state
must not only protect itself from its own transgressions, but also ensure that private
companies do not violate individual rights. 23 The judicial spotlight on fundamental rights
against the state emphasises the state's role to regulate private actors, guarding the rights of
the individuals against a breach.24

In the present fact scenario the portal "Tragic Moments" has arisen as a substantial
platform for Kanchenjungites to post short messages.25 Given the unique setting of the social
media application as a key community platform, the state has the burden of developing clear
and all-encompassing guidelines.26 To avoid potential infringements of constitutional rights,
these standards must properly strike a balance delicately between the facilitation of individual
speech with reasonable restrictions. Such a foresighted and proactive strategy is critical,
especially when the platform serves as an important means of expression for the community,
and it strengthens the democratic and fundamental rights concepts that are at the heart of our
Constitution.

As a result, the state has a positive responsibility of the state to offer clear and thorough
instructions to guarantee that the rights, of those who use the platform are not violated.

17
Id., Art. 14.

18
Id., Art. 19.

19
Id., Art. 21.

20
Vishaka v. State of Rajasthan, (1997) 6 SCC 24.

21
Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297.

22
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

23
Stephen Gardbaum, , Horizontal Effect in The Oxford Handbook of The Indian Constitution (1st ed., 2016).

24
Id.

25
Moot Proposition, ¶8.

26
Moot Proposition, ¶13, “All social media platforms typically have such guidelines” implying that there is no

uniform set of rules, leading to regulation platforms. This leads to disparity and arbitrariness.
 -Arguments Advanced-

1.3. The Availability of an Alternative Remedy does not prevent the filing of a Writ
Petition under Art. 32

It is submitted that the availability of an alternative remedy does not prevent the filing of a
writ petition under Art. 32. When a prima facie violation occurs, the fundamental right to
seek remedies for abuses of fundamental rights obligates the court to act under Art. 32.27

A petition under Art. 32,28 cannot be dismissed only because it was filed before the
SC without having first sought remedy via a High Court under Article 22629.30 Furthermore,
the availability of an adequate alternative remedy does not serve as a sole ground for the
rejection of an Article 32 application. 31 The presence of such an alternate remedy does not bar
relief under Article 32 when a fundamental right has been infringed.32

Basing on these established tenets, the petition remains to be valid and legitimate under
Article 32.33 Despite, not employing Article 226,34 and having an alternative remedy such as
the, Uniform Appeal Mechanism.35 The petitioner's right to seek enforcement of a
fundamental right, evident or threatened, cannot be denied due to the importance of the issue.

Hence, the petition is maintainable under Article 32.

1.4. State and Non-State actors as defendants

It is submitted that in a case where both state and non-state actors are defendants, the
distinction between private and public litigation blurs. 36 However, the actions or omissions on
the part of the state for the core requisite in establishing the violation of a constitutional
27
Kochunni v. state of madrass AIR 1959 SC 725 (729)

28
The Constitution of Kanchenjunga, 1950, Art. 32.

29
Id., Art. 226.

30
Romesh Thappar v. State of Madras, 1950 SCC 436.

31
Ujjam Bai v. State of Uttar Pradesh, 1962 SCC OnLine SC 8, ¶162.

32
Kharak Singh v. State of U.P., 1962 SCC OnLine SC 10, ¶12.

33
The Constitution of Kanchenjunga, 1950, Art. 32.

34
Id., Art. 226.

35
Moot Proposition, ¶16.

36
Stephen Gardbaum, , Horizontal Effect in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION pg.609

(1st ed., 2016).

 -Arguments Advanced-

provision.37 This theory, protects the jurisdiction of the Supreme Court, in cases where
fundamental rights claim arises in the private litigation context.38

In a case,39 which was approached to the Supreme Court via a writ petition, though in the
context of private litigation. The court held that certain rights which form an integral part of
Art.32,40 it is the state’s obligation to provide in that regard. 41 This decision provides a
precedent for how fundamental rights claims can be made in the framework of public-private
litigation, confirming the validity of a writ petition in the event of a constitutional
infringement.42

In casu, both the Union and Tragic Moments have been made respondents in the petition. 43
Further, Tragic Moments is a private party, as even if the argument, of a member of
parliament holding sufficient equity is brought up. 44 His share is only 25%, that too in private
capacity.45 Further, there is no deep pervasive, financial, functional and administrative control
of the state.

Moreover, there is neglect on the side of the state to set guidelines, resulting in violations of
free speech and expression.46 Using the aforementioned concept, it is clear that the Petitioner
justifies the protection of its rights through the involvement of this Court to ensure justice.
Therefore, the writ petition is maintainable.

2. PETITIONER’S RIGHT TO FREEDOM OF SPEECH AND EXPRESSION UNDER ARTICLE 19

HAS BEEN VIOLATED.

37
Id.

38
Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161.

39
Miss Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.

40
The Constitution of Kanchenjunga, 1950, Art. 32.

41
Miss Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.

42
Id.

43
Moot Proposition, ¶26.

44
Moot Proposition, ¶8.

45
Moot Proposition Clarification, ¶1.

46
Supra Note, 26.
 -Arguments Advanced-

It is submitted the Petitioner’s right to freedom of speech and expression has been violated.
This is because the grounds of reasonable restrictions are not fulfilled as provided under Art.
19(2), in order to suspend his account. [2.1] Additionally, these restrictions fall short of
complying with the tests of reasonability and proportionality. [2.2.]

2.1. Grounds of reasonable restrictions, provided under Article 19(2), are not
fulfilled

It is submitted that the grounds of reasonable restrictions, in order to suspend the petitioners
account are not fulfilled. Insofar, restrictions to right of free speech and expression are
concerned.47 It is conceded that rights must be abridged only to an extent which is absolutely
necessary.48 A law to abridge freedom of speech and expression, can only pass muster, if
covered by the grounds under Art. 19(2). 49 In this case the public order of Kunchenjunga is
not disturbed. [1.1.1] Further, the peedas did not incite any offence, and were not
contemptuous to court or defamatory in nature. [1.1.2] Moreover, sovereignty and integrity,
security, of the state and its friendly relations with foreign states is not disrupted. [1.1.3]

2.1.1. The public order of the Kunchenjunga is not disturbed

It is argued that the public order of the state has not been disrupted, by the ‘peedas’ put up by
the petitioner. Freedom of expression the right of expression, communication and
propagation of one’s opinions.50 This right cannot be abridged due to mere threats of violence
or disruption.51 It’s the state obligations to prevent these situations and cannot argue in
incapacity to do so.52

Additionally, the clause (2),53 of the article mentions “in the interests of public order” rather
than “for the maintenance of public order”. A law may not be designed to directly maintain
law and order yet it may be enacted in the “interests of public order”. 54 A law may be affected

47
Shreya Singhal v. Union of India, (2015) 5 SCC 1, ¶17.

48
Id.

49
The Constitution of Kanchenjunga, 1950, Art. 19(2).

50
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

51
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574, ¶8.

52
Id., ¶51.

53
The Constitution of Kanchenjunga, 1950, Art. 19(2).
 -Arguments Advanced-

by an act but not necessarily public order. 55 There should be a close link of the restriction
imposed with the purpose of achieving public order.56 Any remote disruptions would not fall
under art. 19(2).57

In casu, the peedas communicated by the Petitioner were not in breach of public order.
Furthermore, prior demonstrations erupted as a result of the story being published
sensationally by several national publications by portraying the occurrence as a "national
faceoff."58 These incidents, too, do not relate to the ‘peeda’ that finally led to the suspension
of the petitioner’s account. This cannot be held against the petitioner. His peedas is limited to
be interpreted as a mere critique of government policy.59

Hence, the fact that public order was not disrupted by the ‘peedas’, make the suspension of
the petitioners account, fall outside of the reasonable restrictions.

2.1.2. The peedas did not incite any offence, and were not contemptuous to court
or defamatory in nature

It is argued that the peedas did not incite any offence. Further, there was no contempt of court
or defamation. As incitement of any offence leads to endangering the security of the state, 60 it
is forming a reasonable restriction under article 19(2).61

Nobody is permitted to tamper with the administration of justice or undermine the court's
authority or prestige.62 Furthermore, no one may use his or her freedom of expression to harm
the reputation of another.63 Intention, on the part of the party defaming the other is an
important aspect, in order to be classified as defamation.
54
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620; Virendra v. State of Punjab, AIR 1957 SC 896

55
Dr. Ram Manohar Lohia v. State of Bihar & Ors., (1966) 1 S.C.R. 709.

56
Shreya Singhal v. Union of India, (2015) 5 SCC 1, ¶89.

57
Superintendent, Central Prison, Fatehgarh and Another v. Dr. Ram Manohar Lohia, (1960) 2 SCR 821, ¶ 13.

58
Moot Proposition, ¶12.

59
Id.

60
State of Bihar v. Shailabala Devi, (1952) 2 SCC 22.

61
The Constitution of Kanchenjunga, 1950, Art. 19(2).

62
C. K. Dupthary v. O. P. Gupta, AIR 1971 SC 1132, ¶52..
 -Arguments Advanced-

In casu, firstly, there has been no incitement of any offence as a result of peedas, as described
previously. As, the peeda was written is not of a serious nature, so as to attract an offence
under the IPC. Secondly, as there was no intention on the part of the speaker to disrepute the
respondent, the intentions of defamation are not qualified. The Petitioner in this instance just
expresses anguish over the unfortunate ethnic cleansing episode recounted in Dukhiland. 64
further, The petitioner's statements do not diminish the court's prestige, and have not been
disputed by the honourable court.

Hence, the reasonable restrictions of incitement, defamation and contempt are not satisfied.

2.1.3. Other grounds, under Art. 19(2), are not satisfied

It is argued that the sovereignty and integrity, and the security of Kunchenjunga is not
affected. Further, its decency and morality and its friendly relations with foreign states, have
not been vitiated.

The question of “territorial integrity or frontiers of India” is penalised only if the actions are
detrimental to the interests of the state. 65 Further, in order to determine if the security of the
state is vitiated. The utterances are to be tested on the grounds of whether they had a
“pernicious tendency” with “intention of creating public disorder or disturbance of law and
order.”66 Another exception, aims to prevent libels against foreign states to preserve friendly
relations.67 Moreover, Freedom of speech and expression can be restricted if it contradicts
social moral standards,68 when decency necessitates adhering to accepted norms of behaviour
and propriety.69

In casu, with regards to sovereignty and integrity, the best interests of Kanchenjunga are not
jeopardised, either way, by the petitioner's peedas on Tragic Moments. Further, neither they
cause disruption in any manner or disturb Kanchenjunga's law and order. Hence, not affecting
the state’s security. Additionally, the peedas do not concern with international relations,
63
Page 350, DD Basu, 16th Ed., Vol. 1, 2021.

64
Moot Proposition, ¶¶5, 23.

65
Criminal Law Amendment Act, 1961, §2; MP JAIN, INDIAN CONSTITUTIONAL LAW (8th Ed. Vol. 1, 2018).

66
RK Misra, Freedom of Speech and Law of Sedition ( JILI, 117 (1966)).

67
DD BASU, SHORTER CONSTITUTION OF INDIA, Pg.345 (16th Ed., Vol. 1, 2021).

68
Ajay Goswami v. UOI, (2007) 1 SCC 143, ¶76.

69
Dr Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130, ¶¶ 28, 29.
 -Arguments Advanced-

hence not affecting the same. Lastly, petitioner's posts do not impair the Kanchenjunga's
decency or morality.

Hence, the suspension of the Petitioner's account lacks justification within the confines of
reasonable restrictions delineated under Article 19(2).70

2.2. The tests of reasonableness and proportionality are not satisfied

It is argued that the tests of reasonableness [1.2.1.] and proportionality [1.2.2.] are not
satisfied.

2.2.1. The test of reasonableness

It is submitted that the test of reasonableness is not fulfilled. The definition of reasonableness
is not bound, and each case it to be assessed on its own merits. 71 Various aspects such as the
circumstances and manner,72 the base intent, urgency and extent to which restrictions are
applied need to be taken into account.73

Some principles in determining the same have also been laid down by the SC. Firstly,
restrictions imposed via legislations, need to be balanced, and not arbitrarily invade the, six
freedom rights.74 A balance of reasonability needs to strike between the freedoms under
art.19(1) and the control applied.75 Secondly, reasonableness of the statute imposing
restrictions should be adjudged on both procedural and substantive aspects. 76 Factors such as
availability of review provisions and the amount of discretion to such administrative
authority, should be assessed.77 Thirdly, reasonability should be viewed with an objective

70
The Constitution of Kanchenjunga, 1950, Art. 19(2).

71
State of Madras v. V.S. Row, (1952) SCR 597.

72
Chintaman Rao v. State of MP AIR 1951 SC 118: 1950 SCR 759

73
State of madras v VG Row

74
Chintaman Rao v. State of MP, AIR 1951 SC 118: 1950 SCR 759

75
Id.

76
Virendra v. State of Punjab, AIR 1957 SC 896.

77
Municipal Corpn. of the City of Ahmedabad v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20.
 -Arguments Advanced-

lens.78 It should be determined by a reasonable person’s viewpoint, whether he would

consider the restrictions reasonable or not, rather than the judge's personal perception.79

In casu, the suspension of the petitioner’s account cannot be said to be reasonable. This is
because the restriction imposed does not balance his actions of posting a peeda with directly
suspending his account. A balance of reasonability has not been stroked. Additionally, the
guidelines laid by Tragic Moments, were vague, not specified and arbitrary in nature. 80 As, it
mentions broad terms, such as, ‘public safety’, ‘serious violence’, without attributing a
meaning to them and leaving them to broad ends. 81 Lastly, suspending the petitioner's
account, especially close to elections, is unfair given its enormous public reach. This
hampered his capacity to interact with people and offer his opinions. That too only because
he voiced a constructive critique. Such a step does not seem to be reasonable from a
reasonable person’s viewpoint.

Therefore, it is established that the restrictions imposed by the respondents upon the
petitioner do not qualify the test of reasonableness.

2.2.2. The test of proportionality

It is submitted that the test of proportionality is not fulfilled. The acts of the respondents fall
short of the four-prong proportionality test outlined in the Puttaswamy case. 82 This test
demands a legitimate target, an appropriate method of achieving it, no equally effective but
less stringent alternative, and avoidance of a disproportionate impact on the right-holder.83

While evaluating restrictions under Art.19, a legislation having a deterring effect on

freedoms under Art.19(1)(a),84 should pass the judicial review under two aspects. By being

78
Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.

79
Id.

80
Moot Proposition, ¶13, “No further details on the criteria for removal, suspension or permanent blocking are

contained in the CG.”

81
Moot Proposition, ¶14.

82
K.S. Puttaswamy (Privacy-9J.) v. UoI, (2017) 10 SCC 1, ¶319.

83
Id.

84
The Constitution of Kanchenjunga, 1950, Art. 19(1)(a).
 -Arguments Advanced-

within the eight grounds in Article 19(2),85 and being reasonable in character.86 A restriction
should have a genuine objective and measures that are rationally related and essential to
attain that objective in order to be regarded proportional.87

In casu, as proved above the restrictions imposed by the respondents neither find any
sufficient ground under article 19(2),88 nor qualify the test of reasonability. Hence, failing the
test of proportionality as well.

Therefore, it is established that the restrictions imposed by the respondent on the petitioner,
violate the latter’s rights of freedom of speech and expression as under article 19.

3. MR. SIMRAT PAASTHA’S DISQUALIFICATION FROM THE PARLIAMENT WAS NOT

LEGALLY TENABLE

It is submitted that the disqualification of the petitioner by the respondent is not legally
tenable. This is because, firstly, the Respondent has exceeded its jurisdiction of power while
disqualifying the Petitioner. [3.1.] Secondly, the criteria of disqualification on the ground of
defection, under the Tenth Schedule, are not qualified. [3.2.] Thirdly, the decision of the
respondent is subject to judicial review on the grounds of malafide intention. [3.3.]
3.1. Powers of the speaker

It is argued that the Respondent, does not have the powers to disqualify and remove the
etitioner from the parliament on the grounds of lack of political allegiance. This is because
the speaker, does not have Suo Moto power to decide on a disqualification petition. [3.1.1.]
Moreover, power conferred on the speaker does not make him a competent authority to
remove such a member. [3.1.2.]

3.1.1. The Speaker, does not have Suo Moto power to decide on a Disqualification
Petition

85
Id., Art. 19(2).

86
K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, ¶115.

87
Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, ¶63.

88
The Constitution of Kanchenjunga, 1950, Art. 19(2).
 -Arguments Advanced-

It is submitted that the speaker does not have the power to suo moto decide on a
disqualification petition. As, this goes against the Tenth Schedule of the Constitution, 89 and
the Members of Lok Sabha Rules of 1985.90

The Respondent does not have the power to exercise suo moto cognizance in case of
disqualification, on grounds of defection under the Tenth Schedule. Paragraph 6, states that
the question of disqualification “shall be referred” to the Speaker. 91 Implying this decision-
making power on question of disqualification only exists, when it is referred to him.92

The true intent of the Schedule,93 is to be interpreted to decide on the issue of suo moto power
to the speaker.94 The absence of suo moto power ensures the neutrality of the speaker, helping
him in resolving issues in an impartial manner in case of conflicts. 95 Though he has the final
authority, under the provision, he lacks the discretionary power.96

Similarly, under the Members of Lok Sabha (Disqualification on Ground of Defection) Rules,
1985.97 Rule 6(1),98 states that a member can become subject to disqualification only, when a
petition related to same is made in accordance with the provisions of the rule. Further, the
procedure laid down in Rule 7,99 has also not be followed.

Hence, if the same rationale is applied to the facts of the present case. The facts clearly state
that, the Respondent also took suo moto cognisance and consequently, removed the Petitioner
from the Parliament.100 Evidently showing that he acted in excess of his powers.

89
The Constitution of Kunchenjunga, 1950, Schedule X.

90
The Members of Lok Sabha Rules, 1985, Appendix IV.

91
The Constitution of Kunchenjunga, 1950, Schedule X, ¶6(1).

92
Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270

93
The Constitution of Kunchenjunga, 1950, Schedule X.
94
Speaker, Nagaland Legislative Assembly v. Imtilemba Sangtam, 2014 SCC OnLine Gau 610.

95
Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1.

96
Mahachanda Prasad Singh v. Chairman, Bihar Legislative Council, (2004) 8SCC 747, 760-1 ¶15.

97
Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985.

98
Id., , Rule 6(1).

99
Id., , Rule 7.

100
Moot Proposition, ¶18.
 -Arguments Advanced-

Therefore, establishing that no power has been conferred upon the Respondent to take suo
moto decision for answering the question about disqualification.

3.1.2. Power conferred on the chairman does not make him a competent authority
to remove such a member

It is submitted that the power conferred on the Speaker of the house to decide a question
disqualification does not make him an authority competent to remove such a member.

The Speaker has the power to decide if a member is disqualified due to defection, leading to
loss of membership,101 but he does’nt have the authority to remove a member from the
Parliament.102

Similarly, as the facts clearly state that the petitioner was “removed” from the parliament. 103
The respondent is not the competent authority to remove him even in case of disqualification
by defection.

Therefore it is established that the respondent goes in excess of its powers, by taking a suo
moto cognizance of defection. Further, it is proven that he is not the competent authority to
remove the latter from the parliament.

3.2. The criteria of disqualification on the ground of defection, under the tenth
schedule, are not qualified

It is argued that the two criteria of disqualification under Paragraph 2(1) of the Schedule are
not fulfilled. This is because the petitioner has not voluntarily given up his membership of the
political party.[3.2.1.] Moreover, his actions do not fall under the category of Paragraph 2(1)
(b). [3.2.2.]

3.2.1. The petitioner has not voluntarily given up his membership

It is submitted that the Petitioner has not voluntarily given up his membership of CRC.
Paragraph 2(1)(a) of the Tenth Schedule,104 mentions that a member of the House is
disqualified from the party if he voluntarily gives up his membership of the political party.

101
DD BASU, SHORTER CONSTITUTION OF INDIA, (16th Ed., Vol. 2, 2021).

102
P.V. Narasimha Rao v. State (CBI/SPE), 1998 CRI. L.J. 2930

103
Moot Proposition, ¶18.

104
The Constitution of Kunchenjunga, 1950, Schedule X, ¶2(1)(a).
 -Arguments Advanced-

It is conceded that voluntarily giving membership has wider connotations. 105 It can be
expanded beyond resignation, to include acts that are indirect and maybe construed as anti-
party.106 However, criticism to party leaders does not amount to anti party activities, in any
sense if the term. Political leaders have freedom of speech and expression and merely
engaging in constructive criticism of a certain leader whose actions are not in line with the
ideals of the larger political party.107 The Court emphasized that mere criticism of a party
leader should not be considered anti-party activity.

It is clear from the facts, that the Petitioner did not give his resignation. Hence, interpreting
the provision in its strict sense, did not voluntarily give up his membership.

Further, even if the wider interpretations of the provision are considered. From the facts on
the face of it may appear that the Petitioner was involved in anti-party activities. But, if
delved into the proposition closely. The Petitioner in no way goes against the party ideals.
The CRC’s initial manifesto promised policies that were inclusive for women. 108 This was
the same ideology that the Petitioner believed in too. And in the pursuance of the same
committed certain actions. Thus, he did not go against the political allegiance, in fact, his
ideology remained intact with those inherent to the party. Hence, he cannot be said to be
disqualified on grounds of political allegiance.

Hence it is established that the Petitioner did not voluntarily give up his membership of the
political party. Therefore, does not qualify the first ground of disqualification under
defection.

3.2.2. The Actions of the Petitioner do not fall under the Category of Paragraph
2(1)(b) of the Tenth Schedule

The actions of the Petitioner do not fall under the category of para 2(1)(b), 109 of the Tenth
Schedule. As the same, states that if a member votes or abstains from doing so, in

105
Ravi S. Naik v. UOI, AIR 1994 SC 1558.

106
Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270; G.Viswanathan V. The Hon’ble Speaker,

Tamil Nadu Legislative Assembly, Madras, AIR 1996 SC 1060.

107
Handyside v. the United Kingdom, no. 5493/72, 1976.

108
Moot Proposition, ¶4.

109
The Constitution of Kunchenjunga, 1950, Schedule X, ¶2(1)(b).
 -Arguments Advanced-

contravention to the directions of the party, without its permission. 110 In such a case he can be
disqualified on the grounds of defection. The provision provides for a situation where a
member, does not go according to the decision of the party.

But the same cannot be applied to the current issue. As the bill, was tabled in the Parliament,
after the Respondent, removed the Petitioner from the Parliament. 111 So the question of voting
or abstaining, does not come into the picture. Even if the bill did not pass because of the
insufficiency if the votes,112 does not hold ground to prove the disqualification on the ground
of defection.

Hence it is proved, that the disqualification of the Petitioner by the Respondent does not find
fulfilment of any of the grounds under the Schedule.

3.3. Malafide Intention and the Issue of Impartiality

It is argued that, that the Respondent’s decision of disqualification, on grounds of defection,

can be brought under judicial review, on grounds of malafide intention. Further, it is tainted
by the concerns of the issue of impartiality, as raised by various courts.

The Speaker in defection-related disqualification cases, has broad authority granted under the
constitution.113 But he being a member of party, may struggle to act in non-partisan manner at
all times. His role in matters of disqualification, has also faced repeated criticism for
perceived bias.114 Concerns have been raised about the Speaker's impartiality due to their ties
to the ruling party.115 It also questioned why a he should be the final decision-maker in
political defection cases.116

110
Id.

111
Moot Proposition, ¶18.

112
Id.

113
The Constitution of Kunchenjunga, 1950, Schedule X.

114
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651.

115
Jagjit Singh v. State of Punjab, (2005) 3 SCC 689,

116
S.A. Sampath Kumar v. Kale Yadaiah, Supreme Court - Daily Orders, 8 Nov., 2016.
 -Arguments Advanced-

However, despite the finality of the provision in Paragraph 6(1), 117 and the overriding effect
outlined in Paragraph (7),118 the speaker's determination remains subject to judicial review in
cases of jurisdictional errors. One of these grounds comes into picture when the
disqualification is vitiated by mala fides,119 or colourable exercise of the power, based on
irrelevant or extraneous considerations.120

In casu, there have been instances where the malafide intention of the respondent can be
traced. This includes, the non-inclusion of the Petitioner in the gathering that happened to
discuss the future bills, and only one of the members, i.e. the Petitioner was excluded. 121 This
was done even when the nature of the discussion was formal. 122 Further, there have been
indications of a long-standing feud between the two. 123 Also the interpersonal relationships
and the equations of the people concerned must be looked into. As the same helps in
garnering the intention, which may point to the colourable use of the power, based on
considerations that are irrelevant or extraneous. Hence, the fact that the relationship of the
speaker and the petitioner were distraught since the college days, becomes important. 124 As
these hard feelings and bias form an extraneous consideration for the speaker to disqualify the
Petitioner under the garb of its authority.

Hence, it is established that the disqualification of the Petitioner by the Respondent is not
legally tenable as the Respondent acted in excess of its powers, the grounds of defection are
not satisfied, and the circumstances are tainted with malafide and impartiality.

117
The Constitution of Kunchenjunga, 1950, Schedule X, ¶6(1).

118
Id., ¶7.

119
Makhan Singh Tariskko v. State of Punjab, AIR 1964 SC 381

120
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651,

121
Moot Proposition, ¶17.

122
Id.

123
Moot Proposition, ¶5.

124
Moot Proposition, ¶21.
 -Prayer-

PRAYER

In the light of the facts stated, issues raised, authorities cited and arguments advanced, the
Petitioner respectfully requests the Hon’ble Supreme Court of Kanchenjunga to adjudge and
declare that:

1. Petition A is maintainable.
2. Mr. Simrat Paastha’s right to freedom of speech and expression, as provided under
Article 19 of the Constitution of Kanchenjunga, has been violated.
3. Mr. Simrat Paastha’s disqualification from the Parliament was not legally tenable.

And pass such other order as the Hon’ble Court may deem fit in the interest of justice, equity
and good conscience.

All of which is respectfully submitted.

On Behalf of the Petitioner

P-30

Counsel for the Petitioner.