INTERNAL MOOT COURT ASSESSMENT

BEFORE

THE HON’BLE SUPREME COURT OF BHARAT NADU

MEMORANDUM FOR THE PETITIONER

In the matter of

ARTICLE 32 OF THE CONSTITUTION OF BHARAT NADU

Between

UNITED NATIONAL CONGRESS PARTY AND OTHERS………………………………..PETITIONER

V/S.

UNION OF BHARATH NADU AND OTHERS………..………………………….……..RESPONDENT

MEMORIAL SUBMITTED BY COUNSEL FOR THE PETITIONER

Cooperative School of Law in partial fulfillment of the internal assessment for the award of the

degree of bachelors of law

SUBMITTED BY:

AKSHARA MOHAN

NAVYA KRISHNAN. S
MEMORIAL ON BEHALF OF PETITIONER 1
 TABLE OF CONTENTS

1. List of Abbreviations………………………………………………. 3

2. Index of Authority………………………………………………… 4

3. Statement of Jurisdiction………………………………………….. 5

4. Summary of Facts…………………………………………………. 6

5. Issues raised……………………………………………………….. 7

6. Summary of Arguments…………................................................... 8

7. Arguments Advanced…………………………..…………………. 9

8. Prayer……………………………………………………………… 13

MEMORIAL ON BEHALF OF PETITIONER 2

 LIST OF ABBREVIATONS

• AIR ……………………………………………………...All India Reporter

• Art. ……………………………………………………...Article
• LTD. …………………………………………………......Limited
• Ors. ……………………………………………………...Others
• SC ………………………………………………………Supreme Court
• SCC ……………………………………………………….Supreme Court Cases
• SCR ……………………..……………………...…….......Supreme Court Reports
• Vs …………………………………..…………...….......Versus
• HC …………………………………………….…….…. High Court
• Sec ..……………………………...………….....….…..... Section
• RP Act…………………………………...……………….. Representation of People’s Act

MEMORIAL ON BEHALF OF PETITIONER 3

 INDEX OF AUTHORITIES

STATUTE

• CONSTITUTION OF INDIA, 1950

• REPRESENTATION OF PEOPLE’S ACT,

BOOKS

1. Dr. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA

2. V. N. SHUKLA, CONSTITUTION OF INDIA

WEBSITE

1. Indiankanoon.com
2. Legalserviceindia.com
3. Indianlaw.com
4. Indiancaselaw.org
5. Blogipleaders.in
6. Casemine.com

CASELAWS

1. Fertilizer Corporation Kamgar v. Union of India, AIR 344 (SC 1981).

2. L. Chandra kumar v. Union of India, 2 SCR 1186 (SC 1997).
3. Extra Judicial Execution Victim Families Association v. Union of India, SCC 743 (SC
2017).
4. Ramdas Athawale v. Union of India, AIR 1310 (SC 2010).
5. PUDR v. Union of India, AIR 1473 (SC 1982).
6. Indira Nehru Gandhi v. Raj Narain, AIR 2299 (1975).
7. I C Golaknath v. Punjab and Another’s, AIR 1643 (1967).
8. Minerva Mills v. Union of India, AIR 1789 (SC 1980).

MEMORIAL ON BEHALF OF PETITIONER 4

9. Waman Rao v. Union of India, 2 SCC 362 (1981).
10. S R Bommai v. Union of India, 2 SCR 644 (1994).
11. Ankul Chandra Pradhan v. Union of India, AIR 2814 (SC 1997).
12. PUCL v. Union of India, 1 Writ petition (2004).
13. Rajbala v. Haryana, SCC 463 (SC 2016).
14. Kuldeep Nayar v. Union of India, AIR 312 (SC 2006).

MEMORIAL ON BEHALF OF PETITIONER 5

 STATEMENT OF JURISDICTION

The counsel for the Petitioner, hereby humbly submit to This Hon’ble Supreme court Bharat
Nadu.

Has jurisdiction Article 32 of the Constitution of Bharat Nadu

32: Power of Supreme Court to issue certain writs.

Article 32 of the Constitution of the Bharat Nadu gives the right to individuals to move to the
Supreme Court to seek justice when they feel that their right has been unduly deprived. The
Apex Court is given the Authority to issue directions or orders for the execution of any of the
rights bestowed by the Constitution as it is considered ‘the protector and guarantor of
Fundamental Rights’. The rights guaranteed under this Article cannot be suspended.

Article 32 empowers the Supreme Court to issue Writs

Article32(1) Gives the right to move to the Supreme Court for the enforcement and claim the
Fundamental rights which are given under Part III of the Constitution of Bharat Nadu.

Article 32(2) Empowers the supreme court to issue directions, orders or Writs of Habeas corpus,
Mandamus, Certiorari, Prohibition and Quo Warranto in order to enforce the fundamental rights.

The Petitioner would like to humbly submit that the Writ petition is maintainable.

MEMORIAL ON BEHALF OF PETITIONER 6

 STATEMENT OF FACTS

1. Bharath Nadu is a federal country with a multiparty system and has adopted parliamentary
form of government. The Country is technologically growing faster and is a favourite
destination for many developed countries for investment. Though the literacy rate is less
than world average, 75 percent of the people have access to internet and cell phones. On
the other hand, farmer‟s suicide is on the rise and has become a national ignominy. From
the last two decades, the Country is facing political instability due to defections,
corruptions, split in the political parties, etc. Many political scientists, economists, jurists,
and international organizations have opined in the recent times that Bharath Nadu is a
country with highest potential to become a world leader provided it effectively addresses
its political crises.
2. On reading a newspaper editorial about the political instability and factors responsible for
the same and on understanding several of such limitations that plague the system, a prison
inmate wrote a letter to the Supreme Court of Bharath Nadu expressing that the law of the
land that permits the accused to contest elections from the prison but prohibits the inmate
of a prison from exercising his franchise is unfair. He sought the direction to the Union of
Bharath Nadu to bring reforms in the Electoral Law to address the concerns including
criminalization of politics, and unjustified burden on the exchequer due to multiple
unsynchronized elections.
3. The Supreme Court of BharathNadu, though expressed the constitutional limitations on its
powers, nevertheless stressed on the need for reforms in the Electoral Law. It constituted a
committee under the chairmanship of former Justice Radha Krishnan (herein after referred
to as “The Committee”) to review the Electoral Law and submit a report to the Court. In
its report, the Committee opined that the present Electoral Law is not in tune with the
constitutional values and principles, hence there is an urgent need for reform and inter-alia
the Committee suggested following broad objectives for reform in the Electoral Law:

MEMORIAL ON BEHALF OF PETITIONER 7

 i. To reduce the burden on the exchequer by synchronizing the elections to
the State Assemblies with the Parliamentary elections.
ii. To curb the ill practices of making enticing promises in party manifestos
like giving of freebies and loan waivers.
iii. To make political parties more accountable and promote internal democracy
within the political parties.
4. On 1st November 2018, the Supreme Court of Bharath Nadu sent the Committee‟s report
to the Union Government, State Governments, and all the political parties for their
consideration.
5. Meanwhile, parliamentary elections were declared in Bharath Nadu and the Bharath Nadu
Janata Party (BNJP) promised in its manifesto that if it comes to power, it will bring
reforms in the Electoral Law in line with the recommendations of Radhakrishnan
Committee.
6. In the parliamentary election, BNJP came to power with a thumping majority and initiated
reforms in the Electoral Law. It initiated an online referendum seeking the opinion of the
people on the proposed reforms in the Electoral Law and got huge response in its favour
and published it on print and digital media.
7. To bring the proposed reforms in the Electoral Law, the Parliament enacted the
Constitution (104th Amendment) Act, 2019 inserting the following provision: 1. Article
172 (3): The Parliament may extend or curtail the term of any of the state assemblies for a
period it deems necessary, strictly for the purpose of synchronization of elections to the
legislative assemblies of the states with the Lower House of the Parliament.
8. Further, the Parliament inserted the following provisions in the Representation of the
People Act, 1951 (hereinafter referred to as “The Act”):
1) Section 29D: Leadership of a political party shall, at all levels, be duly elected by the
members of the political party.
2) Section 29E: The supervision of the elections to all the leadership positions of a political
party shall be vested in the Election Commission.
3) Section 123 (9): Promise by a political party of any gainful benefits like freebies, loan
waivers, etc., in its election manifesto solely with a view to secure votes.

MEMORIAL ON BEHALF OF PETITIONER 8

4) Section 168A: Any Member of Parliament or Legislative Assembly who resigns
fromhisofficeandintendstocontestelectionfromanotherpartybeforecompletion of the term
shall be liable to pay an exemplary cost as may be determined by the Election Commission.
9. The United National Congress Party (UNCP) challenged the 104th Constitutional
AmendmentasviolativeofthebasicstructureoftheConstitutionofBharathNadu.Further, it
challenged Section 123 (9) of the Act on the ground that it is violative of Article 19 (1)(a).
10. The Bharath Nadu Youth Party (BNYP) challenged the constitutional validity of Section
29D of the Act on the ground that it violates Article 19 (1) (c) of the Constitution.
11. Mr.Belliyappa who is known for shifting sides for political benefits and to become a
member of the cabinet in successive governments challenged Section 168A of the Act as
violative of his freedom of conscience.
12. RaithMitra, a farmers‟ association is a crucial game changer in the Assembly Elections of
Karunadu State. It is successful in getting farm loan waived from every government in
Karunadu State. The Association challenged Section 123 (9) of the Act as anti-farmer and
violative of fundamental rights of thefarmers.
13. Nation Builder, an income taxpayers‟ association, welcomed Section 123 (9) of the Act
and filed an intervening application supporting the Union of Bharath Nadu. It was
submitted that the idea of farm loan waiver is economically and legally ill-founded though
sociologically there maybe differences. In its support, they cited an empirical research that
revealed the misuse of farm loan waiver schemes by different governments failing to abate
the farmer suicide. Its application was allowed and it was arraigned as respondent.
14. Supreme Court admitted all the petitions and clubbed them together for a common hearing.
The matter is posted for final hearing.

MEMORIAL ON BEHALF OF PETITIONER 9

 STATEMENT OF ISSUES

ISSUE -I
Whether this Writ Petition is maintainable in Supreme Court under Article 32?

ISSUE- II

Whether the 104th Amendment of the Constitution and Representation of the People’s
Act of 1951 enacted by the Parliament is a violative of the Basic Structure of the
Constitution of Bharath Nadu or not?

ISSUE – III
Whether there is any violation of fundamental rights under article 19(1) and article 25?

ISSUE - IV

Whether the denial of right to vote of a prison inamte is a violative of article 21 or any
constitutional rights?

MEMORIAL ON BEHALF OF PETITIONER 10

 SUMMARY OF ARGUMENTS
❖ Whether this Writ Petition is maintainable in Supreme Court under Article 32?

It is most humbly submitted that the writ petition filed before the Honourable Supreme Court is
maintainable under Article 32 of the Constitution of Bharat Nadu.

❖ Whether the 104th Amendment of the Constitution and Representation of the People’s
Act of 1951 enacted by the Parliament is a violative of the Basic Structure of the
Constitution of Bharath Nadu or not?

It is most humbly submitted before the Honourable Court that the 104th Amendment Act and the
amendments made in the Representation of the People’s Act of 1951 enacted by the Parliament
leads to the violation of the basic structure of the Constitution of Bharat Nadu

❖ Whether there is any violation of fundamental rights under article 19(1) and article
25?

It is humbly submitted before the Hon’ble Court that, the Sections 123(9) & 168A inserted in the
Representation of People’s Act, 1951 is a violative of the Fundamental Rights conferred under
Article 19(1) and Article 25 of the Constitution. It violates the citizen’s right to Freedom of Speech
and Expression and Freedom of Conscience. Here, in this present fact it can be clearly identify that
the Section 123(9) of the Representation of People’s Act of 1951 infringes the Fundamental Rights
of the citizens. And Section 168A of the said Act also against their Freedom of Conscience

❖ Whether the denial of right to vote of a prison inamte is a violative of article 21 or any
constitutional rights?

It is humbly submitted before the Hon’ble Court that denying a prison inmate from casting his vote
is a violation of his Constitutional Right conferred under Article 326. It was clearly stated in the
fact that the Law of the Land of Bharath Nadu permits an accused to contest elections from the
Prison but prohibits a prison inmate from casting his vote is unfair. Therefore, it can be said that,
it is the infringement of the Constitutional rights of the citizens and it is also against the Democratic
structure of the Country.

MEMORIAL ON BEHALF OF PETITIONER 11

 ARGUMENTS ADVANCED

1. WHETHER THIS WRIT PETITION IS MAINTAINABLE IN SUPREME COURT

UNDER ARTICLE 32?

It is most humbly submitted that the writ petition filed before the Honorable Supreme Court is
maintainable under Article 32 of the Constitution of Bharat Nadu.

The writ petition filed by the petitioner is maintainable. Under Article321 of the constitution of
India provides to all its citizen’s constitutional remedies and every citizen has a right to move to
the Supreme Court for the protection of their Fundamental Rights. Fundamental rights of the
representative of people where infringed by the ordinance issued by the central government as well
as 104th amendment of the constitution are also ultra-virus in view of the constitution. Therefore
the writ petition will be maintainable on this regard. According to the constitutional provisions the
writ is maintainable on the basis of violation of the fundamental rights as well as ultra- virus act
of the constitution amendment.

In the case of Fertilizer Corporation Kamgar (Union) v. Union of India2, it was held that the
power conferred to the Supreme Court under Article 32 is an integral part of the constitution and
thus, belongs to the basic structure of the Constitution of India.

In L. Chandra kumar case3, It was held that the judicial review over legislative action vested
under Art 226 in the H.C and under Art 32 in the S.C of the Constitution is an integral and essential
feature of the Constitution, continuing part of its basic structure.

In case of Extrajudicial executing victim families association v. union of India and others4, It
was held that, in a matters concerning gross violation of human rights, Supreme court and every
constitutional court should adopt an “open door policy” hence there is no doubt at all the petition
filed by the petitioner is absolutely maintainable in view of the constitution

1 INDIA CONST. art 32

2 Fertilizer Corporation Kamgar v. Union of India, AIR 344 (SC 1981).
3
L. Chandra kumar v. Union of India, 2 SCR 1186 (SC 1997).
4
Extra Judicial Execution Victim Families Association v. Union of India, SCC 743 (SC 2017).

MEMORIAL ON BEHALF OF PETITIONER 12

In Ramdas Athawale v. U O I5, it was held that Article 32 is applicable in cases where there is a
question of enforcement of fundamental rights. If the question of enforcement of fundamental
rights does not arise then Article 32 will not be applicable.

Under Art 32 of the Constitution of Bharat Nadu, also stated that a writ petition filed before a
Supreme Court can be filed against a private person too

In the case of PUDR v. Union of India 6, Article 32 is enforceable against private individuals as
well.

2. WHETHER THE 104th AMENDMENT OF THE CONSTITUTION AND

REPRESENTATION OF THE PEOPLE’S ACT OF 1951 ENACTED BY THE
PARLIAMENT IS A VIOLATIVE OF THE BASIC STRUCTURE OF THE
CONSTITUTION OF BHARATH NADU OR NOT?

It is most humbly submitted that the 104th Amendment Act and the amendments made in the
Representation of People's Act of 1951 leads to the violation of the basic structure of the
Constitution of Bharat Nadu

The power to amend constitution is vested in the hands of the Parliament under Article 368 7 of the
Constitution of Bharat Nadu.

It provides three types of Amendment under Art 368:

▪ Amendment by simple majority
▪ Amendment by special majority
▪ Amendment by special majority and ratification by the states

The doctrine of basic structure is a judge made doctrine to put a limitation on the amending powers
of the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in
the exercise of it’s ‘constituent power’ under the constitution. The basic structure of the
constitution helps to preserve and protect the spirit of the constitution. The main aim involved in

5 Ramdas Athawale v. Union of India, AIR 1310 (SC 2010).

6
PUDR v. Union of India, AIR 1473 (SC 1982).
7 INDIA CONST. art 368

MEMORIAL ON BEHALF OF PETITIONER 13

preserving the basic structure is to protect the democracy and to protect the rights and liberties of
people

Basic structure is the backbone of the Constitution having certain fundamental structures and
founding principles. There are some ideologies that are essential for the survival of the
constitution. It include :-

• Supremacy of the constitution

• Rule of law
• Sovereignty, liberty and republic nature of Indian polity.
• Judicial review
• Harmony and Balance between fundamental rights and directive principles.
• Separation of power.
• Federal character.
• Parliamentary system.
• Rule of equality.
• Unity and integrity of the nation.
• Free and fair elections.
• Powers of SC under Article 32,136,142,147
• Power of HC under Article 226 and 227.
• Limited power of parliament to amend the constitution.
• Welfare state.
• Freedom and dignity of an individual.

While, Parliament has unrestricted powers to amend various sections of the Constitution, but they
cannot touch, amend, repeal or add sections into the Constitution which would affect its basic
structure in the process.

The Representation of the People Act, 1951 is an act of Parliament of India to provide for the
conduct of election of the Houses of Parliament and to the House or Houses of the Legislature of
each State, the qualifications and disqualifications for membership of those Houses, the corrupt

MEMORIAL ON BEHALF OF PETITIONER 14

practices and other offences at or in connection with such elections and the decision of doubts and
disputes arising out of or in connection with such elections.

The amendments that are made in the RP Act8 is violative of Fundamental Rights that are conferred
to the citizens of Bharat Nadu. Fundamental rights are sine qua non to a person’s dignity and right
to life. They are rights that are bestowed upon an individual by virtue of birth and subject to the
territory they reside. The amenability of the fundamental rights requires a constitutional
amendment and is permitted only on the condition that it does not alter the basic structure of the
constitution. Therefore, the amendments made in the Representation of the People’s Act of 1951
are ultra virus to the Constitution of Bharat Nadu and is against the Basic Structure.

In the case of Indira Nehru Gandhi v. Raj Narain9, The Supreme Court stated that having free
and fair elections is a vital part of the basic structure. They explained that conducting elections
fairly and without bias is important to support the democratic principles of the Constitution. The
Court decided that the Parliament can make changes to the Constitution. But the Court also said
that this power cannot be exercised in a way that will damage or destroy the basic structure.

In Golaknath case10, It was held that the Fundamental Rights are given a transcendental and
immutable position and hence the Parliament cannot abridge or take away any of these rights.

In kesavananda BharatiCase, The SC held that although no part of the Constitution, including
Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the
Constitution could not be abrogated even by a constitutional amendment.” The judgment implied
that the parliament can only amend the constitution and not rewrite it. The power to amend is not
a power to destroy.

In Minerva Mills’s case11, This case again strengthens the Basic Structure doctrine. The judgment
struck down 2 changes made to the Constitution by the 42nd Amendment Act 1976, declaring them
to be violative of the basic structure. The judgment makes it clear that the Constitution and not the
Parliament is supreme. In this case, the Court added two features to the list of basic structure

8 Representation of the People’s Act (1951)

9 Indira Nehru Gandhi v. Raj Narain, AIR 2299 (1975).
10
I C Golaknath v. Punjab and Another’s, AIR 1643 (1967).
11
Minerva Mills v. Union of India, AIR 1789 (SC 1980).

MEMORIAL ON BEHALF OF PETITIONER 15

features. They were: judicial review and balance between Fundamental Rights and DPSP. The
judges ruled that a limited amending power itself is a basic feature of the Constitution

In the case of Waman Rao's case12, The SC said It is important to preserve the independence and
effectiveness of the judiciary because the judiciary is the guardian of the Constitution. The case
also redefined the role of the judiciary in upholding the basic structure. It ensures that any attempt
to infringe Constitution’s core principles and values will be considered unconstitutional.

In S.R.Bommai case13, This case reinforced the principles of federalism and democratic
governance. These principles are integral to the basic structure of Indian Constitution.

3. WHETHER THERE IS ANY VIOLATION OF FUNDAMENTAL RIGHTS UNDER

ARTICLE 19 (1) AND ARTICLE 25?

Yes. It is most humbly submitted before the Hon’ble Supreme Court of Bharath Nadu that the
Section 123(9) of the Representation of People’s Act, 1951 violated the Article 19 (1) (a) of the
Constitution. The Section 123(9) of the said Act states that, “Promise by a political party of any
gainful benefits like freebies, loan waiver etc… in its election manifesto solely with a view to
secure votes”. It violates the Fundamental Rights conferred under Article 19(1)(a) 14 of the
Constitution which defines all citizens have the right to Freedom of Speech and Expression”.

Here, the Representation of People’s Act of 1951 was passed by the Parliament under Article 327 15
of the Constitution. Here in this case, the Parliament further inserted the following provisions such
as,

12 Waman Rao v. Union of India, 2 SCC 362 (1981).

13
S R Bommai v. Union of India, 2 SCR 644 (1994).
14 INDIA CONST. art. 19, cl. 1(a)
15 INDIA CONST. art. 327

MEMORIAL ON BEHALF OF PETITIONER 16

Section 29D:- Leadership of political party shall, at all levels, be duly elected by member of
political party.

Section 29E:- The supervision of the elections to all the leadership positions of a political party
shall be vested in the Election Commission.

Section 123(9):- Promise by a political party of any gainful benefits like freebies, loan waivers
etc… in its manifesto solely with a view to secure votes.

Section 168A:- Any Member of Parliament or Legislative Assembly who resigns from his office
and intends to contest election from another party before completion of the term shall be liable to
pay an exemplary cost as may be determined by the Election Commission.

The inserted provision Section 123(9) of the R.P Act 1951 violated the Fundamental Right under
Article 19 (1) (a).Because, each and every citizen have the right to Freedom of Speech and
Expression and no one can violated it except the reasonable restrictions by the Government. The
United National Congress Party challenged this Section under the ground that it violates their
rights. No one can say that the promise made by the political party giving freebies and loan waivers
is solely for the purpose of securing votes. They have the right to express their thoughts. The
political party is also considered as an association which is formed for representing the common
people in the Nation and for attaining their needs through these representations. In other words,
they are also considered as a common man and they also wanted these freebies and loan waivers
for helping the persons who were below the poverty line. So, it can’t be say that it is done with a
view to gain benefits and secure votes.

So, Section 123(9) of the R.P Act 1951 in this sense, it can be considered as Ultra Vires, which is
conferred under Article 13(2)16 of the Constitution which states that “The State shall not make any
law which takes away or abridges the rights conferred by this pat and any law made in
contravention of this clause shall, to the extent of contravention, be void.” Therefore, such la will
become void or non-existent only against citizens because Fundamental Rights are available only
for citizens. The voidness stated under Article 13 (2) can only be stated void as against the persons
who’s Fundamental Rights are taken away or abridges by law. Here, the Fundamental Rights of

16 INDIA CONST. art. 13, cl. 2

MEMORIAL ON BEHALF OF PETITIONER 17

the citizens were violated. So, such provision of Representation of People’s Act 1951 should be
declared as void.

And also, the Union of Bharath Nadu inserted Section 168 A in the Representation of People’s
Act, 1951 which states about “Any Member of Parliament or Legislative Assembly who resigns
from his office and intends to contest election from another party before completion of the term
shall be liable to pay an exemplar cost as may be determined by the Election Commission.”, Is the
violative of Freedom of Conscience of citizens stated under Article 2517 of the
Constitution.”Freedom of Conscience and Free profession, practice and propagation of religion.”

Conscience shapes human choices and distinguishes human beings from other creatures. Freedom
of Conscience is imperative and larger than the Freedom of Religion and Belief. It covers all ethics
and values of a human being. There are no admissible limitations to this freedom as long as
personal convictions are not imposed on others and do not harm them. Respect for Freedom of
Conscience is hard to attain. People tend to judge the convictions of others. Furthermore, it is very
common that those who hold a conviction will defend it. What is less common, but more needed
is that we all stand up to defend everyone’s right to their own convictions.

Conscience is very important in ethics. It describes two things. One is, What a person believes is
right and another is How a person decides what is right. More than just ‘gut instinct’, our
conscience is a ‘moral muscle’. By informing us of our values and principles, it becomes the
standard we use to judge whether or not our actions are ethical.

Therefore, in this sense, we can say that Section168A of the R.P Act 1951 is a violative of citizen’s
freedom of conscience conferred under article 25 of the Constitution.

‘Raitmithra’, a Farmer’s association is a crucial game changer in the Assembly elections of

Karunadu state. This association also challenged the Section 123(9) of the Representation of
People’s Act 1951 and contented that it is an anti-farmer and violative of Fundamental Rights of
the farmers. When there is a poor monsoon or natural calamity, farmers may be unable to repay
loans. The rural distress in such situation often prompts States or Centre to offer relief- reduction
or complete waiver of loans. Essentially, the Centre or States take over the liability of farmers and

17INDIA CONST. art. 25

MEMORIAL ON BEHALF OF PETITIONER 18

repay the banks. Our Country’s economy is mainly depends on the agriculture and exporting of
agricultural products. So, this loan waiver encourages the farmers to reduce productive
investments and spend more on consumption.

So, such promises made by the political party are only with a view that which is to help the farmers
who were suffering from non-repayment of such farm loans. The farmers are getting relaxations
by providing the freebies and loan waivers which is promised by political parties and the stoppage
of this will adversely affects the farmer’s life and also the economy of the Nation. Therefore, this
can be also considered as an anti-farmer law.

4. WHETHER THE DENIAL OF RIGHT TO VOTE OF A PRISON INMATE IS

VIOLATIVE OF ARTICLE 21?

It is humbly submitted before the Hon’ble Supreme Court of Bharath Nadu that, denying a prison
inmate the right to vote is more likely to send messages that undermine respect for the law and
democracy than messages that enhance those values. Denying the Right to Vote does not comply
with the requirements for legitimate punishment. If a convicted person can vote if he/she is out on
bail, why is the same right denied to an under trial who is not yet found guilty of a crime by a
Court of law. Even a judgment debtor, who has been arrested and detained as a civil person is
deprived of his Right to Vote. Detainment in civil prison is unlike imprisonment for crimes.

The law of the land of Bharath Nadu permits the accused to contest elections from the prison, but
prohibits the inmate of a prison from exercising his franchise is unfair. The ban lacks reasonable
classification based on the nature of the crime or duration of the sentence imposed unlike in
Countries like South Africa, United Kingdom, France, Germany, Greece, Canada etc…this lack
of classification is anathema to the Fundamental Rights to equality under Article 14 18 of the
Constitution. The provisions related to prisoner’s Right to cast their Vote are;

• The Right to Vote is a Constitutional right under Article 326 19 of the Constitution.

18 INDIA CONST. art. 14

19 INDIA CONST. art. 326

MEMORIAL ON BEHALF OF PETITIONER 19

 • Under trial prisoners are also excluded from participating in elections even if their names
are on the electoral roles.
• Only those under preventive detention can cast their votes through postal ballots.

The rights of convicted prisoners include Right to live with Dignity. The right of a human being
to lie with dignity is protected by the Constitution. This Right is also given to the prisoners as their
mere conviction does not render them inhuman. The Right to live with dignity includes the choice
of a person to select their democratic representatives. This Right forms a significant part of Right
to life guaranteed under the Constitution. In a Democratic Country like Bharath Nadu, all adults
irrespective of what religion they belongs to, how much education they have had, what caste they
are, or whether they are rich or poor are allowed to vote.

If the law of the land of the Bharath Nadu permits the accused to contest elections from the prison
but prohibits the prison inmate from exercising his franchise is totally unfair and violative of
Constitutional right conferred under Article 326 of Constitution.

Constitutional Status of Voting Right:

• There is no explicit mention of the right to vote in Part III of the Constitution of India, which
deals with fundamental rights.
• The principle of adult suffrage is enshrined under Article 326 of the Constitution of India. It
confers on every citizen of over 18 years of age the right to be registered as a voter for the elections
of Lok Sabha and Legislative Assembly of their respective States.
• This right is subject to disqualification either under the Constitution or under any other appropriate
legislative statute.
• In People's Union for Civil Liberties (PUCL) v. Union of India20, the Supreme Court
recognised the constitutional status of the right to vote. This was further reiterated in Rajbala
v. State of Haryana21.
• In this judgment the apex court clarified that adult suffrage or the right to vote and right to contest
elections are not merely statutory rights but they are certainly constitutional rights, if not
understood to be fundamental rights.

20 PUCL v. Union of India, 1 Writ petition (2004).

21
Rajbala v. Haryana, SCC 463 (SC 2016).

MEMORIAL ON BEHALF OF PETITIONER 20

• The court opined that since the Constitution itself provides for some qualifications and
disqualifications to be a voter and to contest elections, it testifies the fact that these rights are
nothing less than a constitutional right.
• Later in Kuldeep Nayar v. Union of India22, the Supreme Court didn't overrule the PUCL
judgment, but a rider was added that right to vote has a constitutional status only to the extent
that it leads to right to have a free and fair election.
• The preamble to the Constitution of India envisions the Indian nation-state to be a 'democratic
republic'. A democratic form of government is best defined as a government by the people, of the
people and for the people, whereas Black's Law dictionary defines a 'republican government' as a
"government by representatives chosen by the people". Democracy and free and fair elections are
a part of the basic structure of the constitution. For elections to be a free and fair exercise, a
guarantee of right to vote to those who constitute the electorate is a necessary precondition.
• The recognition of the right of the voters to vote might not be in itself sufficient for elections to be
free and fair but the creation of a condition where voters can ever exercise their electoral right with
a free will is a sine qua non.
• As soon as the principle of free and fair election and democracy become a part of the basic
structure, giving similar stature to voting rights should be the natural corollary.
• Even if the right to vote becomes a part of the basic structure or be upheld as a fundamental right
under Article 19(1)23, the same cannot become an absolute right.
• Article 19(2)24 provides scope for imposing certain reasonable restrictions on the exercise of the
rights guaranteed under article 19(1).
• Also, Article 326 confers power upon the legislature to impose certain restrictions on the ground
of non-residence, unsoundness of mind, crime or corrupt or illegal practice.

Arguments for the Right to Vote of Elected Representatives as inmates:

• In an election, where the elected representatives are directly elected by the people, voters cast their
votes in an individual capacity and their vote represents their will. But in an election for the

22
Kuldeep Nayar v. Union of India, AIR 312 (SC 2006).
23 INDIA CONST. art. 19, cl. 1
24
INDIA CONST. art. 19, cl. 2

MEMORIAL ON BEHALF OF PETITIONER 21

 members of Rajya Sabha and the Legislative Council, people express their preferences through
their elected representatives.
• The elected representatives when exercise their right to vote, they vote not just in their personal
capacity but they reflect the will and aspirations of general masses.
• Article14 of the Constitution allows for reasonable classification for the purpose of legislation,
provided that these two conditions are satisfied:
i. that the classification has its foundation on an intelligible differentia and
ii. that such differentia has a reasonable and rational nexus with the object which the prescribed
statute wants to achieve.
• In the election for the members of Rajya Sabha and Legislative Councils, the voters vote on behalf
of all those whom they represent in the lower house.
• Another argument which can be a basis for lifting the embargo of section 62(5) 25 for indirect
election is the quantitative difference of voters in both of these elections. To allow the prisoners to
vote in direct elections, the State will have to make logistical and administrative arrangements at
a mammoth scale.
• In Ankul Chandra Pradhan vs. Union of India26, the court upheld the constitutional validity of
section 62(5) citing that in order to permit every person in prison to vote, the State will have to
make large scale security arrangements.
• Deployment of police forces and given the under availability of police forces, it seems to be a
rather far-fetched and implausible idea to allow all the prisoners, the right to vote.
• This constraint will not be a hindrance in making arrangements for providing access to voting
rights to voters in indirect elections as the number of voters would be so less that infrastructural
and security arrangements can be easily deployed.
• There seems to be a logical fallacy in the legislative policy allowing people with criminal
antecedents to contest elections but denying the right to vote.
• The oath, which the members of parliament and the members of legislative assembly take after
getting elected, confers upon them some obligations and responsibilities, which amongst other
things also includes the fulfilment of constitutional duties.

25 Representation of People’s Act 1951, No. 43, Acts of Parliament, 1951(India)

26
Ankul Chandra Pradhan v. Union of India, AIR 2814 (SC 1997).

MEMORIAL ON BEHALF OF PETITIONER 22

• Section 62(5) by prohibiting the members of parliament and members of legislative assembly to
vote in the election for Rajya Sabha and Legislative Council members, restraints them in the
discharge of their constitutional duty.

Partial lifting the embargo of section 62(5) for indirect elections should be put for consideration
to ensure that it does not become an impediment for the MPs and MLAs in the discharge of
their constitutional duties and exercise of their rights to ensure that it should not prejudice the
rights of the citizens, whom these elected representatives represent. The status of the right to
vote must be given an expansive meaning to strengthen the democratic ethos of the country.

MEMORIAL ON BEHALF OF PETITIONER 23

 PRAYER

In the light of the facts stated, issues raised, authorities cited and arguments advanced, it is most
humbly prayed before this Hon’ble Court that, it may be pleased to hold, adjudge and find that;

1. Allow the petition before the Hon’ble Supreme Court under Article 32 of the
Constitution.
2. Issue a Writ of Mandamus to quash the provisions under Sections 123(9) and 168A
of the Representation of People’s Act of 1951 which is unconstitutional.
3. Declare the provision in the 104th Amendment Act, 2019 of Constitution is a
violative of the Basic Structure of the Constitution.
4. Allow the prison inmates who were not proved guilty to cast their vote.

AND/OR

Pass any such order or any other relief that this Hon’ble Court may deem fit in the interest of the
Justice, Equity and Good Conscience.

And for this, the petitioners as in duty bound shall humbly pray.

Place:

Date:

S/D

(COUNCIL FOR THE PETITIONERS)

MEMORIAL ON BEHALF OF PETITIONER 24

MEMORIAL ON BEHALF OF PETITIONER 25