2.

1 The Speaker while deciding the matter, under the 10th schedule does not satisfy the
requirement of independent adjudicatory machinery.

It is humbly submitted that the Speaker can contiune in the legislature as office with help of
majority part in th house, therefore which is result into baised procedings. Hence it does not
satisfy the requriment of Indepent Adjudicator machinery.

2.1.1 Speakr act as a Tribunal

It is obsered by the Hon’ble SC that in the case of Harinagar Sugar Mills Ltd. v/s Shyam Sunder
Jhunjunwala,1 held that as follow as:-

... By “courts” is meant courts of civil judicature and by “tribunals”, those bodies of men who are
appointed to decide controversies arising under certain special laws. Among the powers of the
State is included the power to decide such controversies. This is undoubtedly one of the
attributes of the State and is aptly called the judicial power of the State, In the exercise of this
power, a clear division is thus noticeable. Broadly speaking, certain special matters go before
tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures
may differ, but the functions are not essentially different. What distinguishes them has never
been successfully established. Lord Stamp said that the real distinction is that the courts have” an
air of detachment”, But this is more a matter of age and tradition and is not of the essence, Many
tribunals, in recent year’s have acquitted themselves so well and with such detachment as to
make this test insufficient.”

Further it is humbly submitted that SC held that the Speaer while Function under 10th Schedule
exercise as judicial power and as tribunal.2

2.1.2 Biasness of Speaker

A spokesman of the Indian parliamentary tradition is not obliged to abandon his membership of
the political party on which he is elected, and this is inevitably the decision of the spokesperson
who is not free from the traits and traits political polarizations. It should be noted that a speaker
who has not resigned from membership of the political party can not be impartial and that its
functioning will in no way be free from any reasonable likelihood of bias.

In matter of Kihoto Hollohan case3, SC observed that as follow as:-

“Democracy is a part of the basic structure of the constitution. Accordingly, an independent

adjudicatory machinary for resolving disputes relating to the competence of members of the
House is envisaged as on attribute of this basic feature. The tenure of the Speaker who is the
authority of the 10th Schedule to decide this dispute is dependent on the continuous support of

1
Harinagar Sugar Mills Ltd. v/s Shyam Sunder Jhunjunwala, AIR (1962) 2 SCR 339.
2
Kihoto Hollohan case, AIR (1993) SC 412.
3
Supra. 2.
the majority in the House and therefore, the Speaker does not satisfy the requirement of such an
indenpendent adjudicatory authority and his choice as the sole arbiter in the matter violates an
essential attribute of the basic feature.”

2.1.3 Speaker’s View

In fact, two Lok-Sabha spokespersons (Rabi Ray-1991 and Shivraj Patil-1993) expressed doubts
about their ability to rule on cases of apostasy for two reasons:

(i) one impartial and objective for political reasons.

(ii) He does not have the legal knowledge and experience to decide cases.

Spokesman Shivraj Patil said: “The benefit of doing justice to the case is enormous, the
speaker may or may not be legal and law-abiding, and it is more appropriate for cases to be
judged by the judges of the court. the Supreme Court.”4

Thus, the spokesman who decides the matter under the tenth list does not fulfill the condition of
an independent judicial mechanism.

2.2 THE 10TH SCHEDULE OF THE CONSTITUTION PROHIBITING HONEST AND

GENUINE DISSENT DESERVES TO BE DECLARED AS UNCONSTITUTIONAL.

2.2.1 Parliamentary Previleges

It is humbly submitted that Freedom of speech and expression within the party is an essential
feature of party democracy. It was his parliamentary privilege under s. 105 of the Constitution to
speak freely in the Houses of Parliament, but the anti-vice law prohibits any honest and sincere
dissent, so it is unconstitutional.

RODNEY BRAZIER says : “Failure to vote with his party on a three-line whip without
permission invites a party reaction. This will range ( depending on the circumstances and
whether the offence is repeated) from a quite word from a Whip and appeals to future loyalty, to
a ticking – off or a formal reprimand ( perhaps from the Chief Whip himself ), to any one of a
number of threats. The armoury of intimidation includes the menaces that the Member will never
get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his
party for Commons Committee Memberships, or that he might be deprived of his party’s whip in
the House, or that he might be reported to his constituency which might wish to consider his
behavior when reselection comes round again….. Does the Member not enjoy the Parliamentary
privilege of freedom of speech ? How can his speech be free in the face of such party threats ?”

2.2.2 Minority Judgement in Kihoto Hollohan Case

It is submitted before this Hon’able SC that Minority Judgment of the case is as follow as:-

4
.See : pg no. 67.4 of The Indian Polity by- M. Lakshmikant (4th Edn.).
 1. The whole of the 10th list was constitutionally invalid because the states had not ratified
it. The doctrine of separability would not apply if the bill suffered from a fundamental
weakness of the art from the outset. 368 (2) Reservation.
2. For those guilty of fundamental doctrine, this could have been an appropriate case to
reject the amendment in violation of the fundamental principles of freedom of expression
and choice, as is customary in the House of Parliament.
3. There is no justification for penalizing individual dissidents while protecting, rewarding
and legitimizing group emigration.
4. It is difficult to understand that efforts to equate a person's right to a recall with
disqualification, if one does not obey the party whip.

Therefore, the majority court seems to have been very heavy in protecting and preserving the
essentials of the law against waste by invoking the doctrine of separability. However, the opinion
of the minority seems to be quite simple and to the extent that.

2.2.3 Failure of Anti – Defection Law

Although the anti-defection law was considered a bold step towards cleansing our political life
and a new era in the country's political life, it revealed many shortcomings in its functioning and
was not able to to prevent defects.

1. It does not distinguish between dissent and defection. This limits the right of the legislator to
contradiction and freedom of conscience. Thus party bosses clearly take center stage and
sanction the tyranny of party discipline.5

2. His distinction between individual defection and group emigration is irrational. In other
words: "This only prohibited the removal of goods and legalized waste on a large scale.6

The tenth draft constitution, which prohibits any honest and sincere dissent, deserves to be
declared unconstitutional.

5
Soli J Sorabjee, ‘The Remedy should not be worse than the Disese ; The Times of India ( Sunday
Review), Feb 1, 1985, pg.no. 1.
6
Madhu Limaye, Contemparary of India Politics, 1989, pg no. 190.