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Tamil Nadu National Law University (TNNLU), Tiruchirappalli INTRA UNIVERSITY MOOT COURT COMPETITION (IUMCC) 2018 SEPTEMBER

Tamil Nadu National Law University (TNNLU), Tiruchirappalli

Tamil Nadu National Law University (TNNLU), Tiruchirappalli INTRA UNIVERSITY MOOT COURT COMPETITION (IUMCC) 2018 SEPTEMBER

INTRA UNIVERSITY MOOT COURT COMPETITION (IUMCC) 2018

SEPTEMBER 8 9, 2018

MOOT PROPOSITION

MOOT COURT COMPETITION (IUMCC) 2018 SEPTEMBER 8 – 9, 2018 MOOT PROPOSITION Illustration by Sorit from

Illustration by Sorit from Outlook

TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition Moot Proposition * 1. The Republic of Kratos is

Moot Proposition *

1. The Republic of Kratos is a developing country with the second highest population in the

world. The country has a Federal form of Government comprising 29 States and 7 Union

Territories, which is demographically divided into Northern, Southern, Eastern and Western

Kratos with distinct social, cultural and economic background. The founders of the Republic

of Kratos envisaged Kratos to be a sovereign, secular, democratic and socialist nation which

is reflected in the Constitution of Kratos, 1950 (hereinafter, ‘Kratosian Constitution’).

2. Kratos being a Parliamentary Democracy, has a multiparty system, wherein different

political parties take active part in the country’s polity both at the national and regional

level. At every election conducted once in five years, an electorate of millions cast their

votes by way of secret ballot method to elect their representatives to various legislative

bodies. As the country is known for its diversity and multi-ethnicism, factors such as

religion, caste and language plays a crucial role in election of candidates.

3. Kratosian Peoples Party (KPP) is the oldest political party in Kratos. Till the early part of

1960’s, KPP was the dominant political force throughout all the four regions of Kratos.

However, in the 1967 General Elections, where citizens of Kratos voted to elect the Union

as well as the State Governments simultaneously, KPP lost majority in almost 9 States and

it was voted out of power in 10 States. Regional Parties slowly began to exert considerable

influence in the formation of Government and this led to the beginning of coalition erain

the Kratosian politics.

* This Moot Proposition was drafted by Mr. S. Mohammed Azaad, Assistant Professor of Law, Tamil Nadu National Law University (TNNLU), Tiruchirappalli. The drafter would like to thank Ms. Geetashree Kurup, Assistant Professor of Law, TNNLU for her valuable contribution in creating this Moot Proposition. The drafter would also like to thank Mr. Sandeep S Kumar, Mr. Nikam Ajinkya Sharad, Ms. Ananya Khandelwal and other Final Year MCC members from TNNLU for their research assistance.

Year MCC members from TNNLU for their research assistance. Case Concerning the Constitutionality of Anti-Defection Law
Year MCC members from TNNLU for their research assistance. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition 4. Post 1970’s , it was often seen that

4. Post 1970’s, it was often seen that any party which forms the Government by way of simple

majority faced potential threat to its stability, not only from the opposition parties, but also

from the dissident members within the ruling party. At times, a party which fails to get a

majority in the house through election, may yet be able to form the Government by

manoeuvring clandestine post poll alliances with other parties. With the increasing number

of coalition governments, the politics of defection came into play, whereby many MPs

and MLAs abandoned their parent party and started migrating to other political parties

which lured them with money and plum political positions.

5. Over the last few decades, the phenomenon of defection or shifting party allegiance has

been rampant in Kratos. In January 2001, a Consultation Paper on the Electoral Law of Kratos

discussed the problem of party jumping and noted that defections had “haunted the Kratosian

polity” for more than 30 years. The Paper pointed out that between 1970’s and 1980’s,

nearly 2000 of the roughly 4000 members of the Lok Sabha and Legislative Assemblies in

the States and Union Territories defected and counter-defected. Thus, by the end of 1980,

more than 50% of the legislators changed their party affiliations several times which in

turn lead to fragile Governments.

6. In 1985, as the evil of defection became a matter of national concern, the Kratosian

Constitution was amended by the Constitution (Fifty Second Amendment) Act, 1985 to

accommodate provisions as to disqualification on the ground of defection. The “Anti-

Defection Law” was introduced with the objective of curbing the defection of elected

lawmakers who defied their party whip by abstaining from voting, resigning and joining a

rival political platform. Even though, the amendment was brought to curb horse trading,

many shrewd politicians continued to find loopholes to exploit the law.

politicians continued to find loopholes to exploit the law. Case Concerning the Constitutionality of Anti-Defection Law
politicians continued to find loopholes to exploit the law. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition 7. Fast forward to 2016, Kratosian Alternative Democratic Front

7. Fast forward to 2016, Kratosian Alternative Democratic Front (KADF) won the Parliamentary

Election comfortably by defeating the alliance led by KPP. Similar to the KPP of the 1960’s

and 70’s, KADF became the dominant political force throughout Kratos, except the

southern region. While KADF claimed that it is a party with nationalistic and pro-

development ideology, its detractors alleged that the party is creating chaos by dividing

people in the name of religion et.al and voices of dissent are being thwarted by labelling

the dissenters as “Anti-Kratosian.” There were also wide spread allegations that defections

started happening more frequently in many legislative assemblies after the 2016 election at

the behest of KADF and the anti-defection law was grossly misused by the constitutional

functionaries appointed by the KADF Government at the Centre.

8. In the 2018 Legislative Assembly Election in the southern State of Lemuria, several political

parties turned up for election and prominent among them were KADF and KPP. During

the high decibel election campaign, Lemurian Forward Party (LFP), the ruling regional party

whose ideology is considerably different to that of KADF and KPP involved in mud-

slinging against the national parties. The election results threw up a hung assembly in the

State with KPP emerging as the single largest party with 17 seats, while KADF winning 13

seats in the 40-member assembly. The KADF however pulled off a coup by enlisting the

support of LFP and 3 Independents to reach the magic figure of 21 in the 40-member

house. Based on this post-election alliance, the Governor Mr. Kakarlal Sathya invited

KADF to form the Government.

9. KPP filed a petition before the Supreme Court (SC) of Kratos praying that the ‘floor test

should be ordered to find out who has the majority and the SC ordered the same. KPP

issued what it calls a ‘whip’ to vote against the illegitimate KADF alliance in the floor test.

against the illegitimate KADF alliance in the floor test. Case Concerning the Constitutionality of Anti-Defection Law
against the illegitimate KADF alliance in the floor test. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition Subsequently, KADF won the vote of confidence. One member

Subsequently, KADF won the vote of confidence. One member from the KPP, Ms. Singaa

Ruchy was absent from the House on the date of floor test. Later that day, Ms. Ruchy

returned to the Assembly and tendered her resignation to the then Pro-tem Speaker, who

accepted it. On the very same day, Ms. Ruchy also resigned from KPP and a short while

after, she joined KADF and was immediately appointed as the Law Minister of Lemuria.

10. KPP’s Chief Spokeswoman Ms. Gita Ram told reporters that “gross and rampant misuse of

money power finally delivered an immoral government of opportunists and turncoats. The mandate of the

people of Lemuria, who voted KPP to power, has been robbed in broad daylight.KPP complained to

the Speaker of the Lemurian Legislative Assembly Mr. Srirampal that the inglorious

partnership between Ms. Ruchy and KADF makes a mockery of the Constitution and the

Speaker should disqualify Ruchy. KPP asserts that Ms. Ruchy earned a disqualification,

when she absented herself from the vote at the floor test. It also says the Pro-tem Speaker

was wrong in accepting her resignation and he should have assessed whether her

resignation was genuine. In short, according to KPP, Ms. Ruchy was instrumental in

engineering their defeat at the floor test. However, the Speaker Mr. Srirampal held that, as

Ruchy already resigned from KPP, she cannot be disqualified under the anti-defection law.

Meanwhile, in a bye-poll later that year, Ms. Ruchy was elected to the Assembly on a

KADF ticket. Now, KPP filed a petition against the decision of the Speaker in the

Lemurian High Court (HC) and the matter is pending.

11. In the meanwhile, Mr. Crower Simha, a KADF MLA from Lemuria, who was one of the

founding members of KADF was not happy with the conduct of the senior leaders of his

party in the assembly. At times, there happened to be serious disagreements between him

and the party members regarding certain discussions in the house. He felt that his freedom

to express himself was often disregarded by the senior leaders and fellow party members.

disregarded by the senior leaders and fellow party members. Case Concerning the Constitutionality of Anti-Defection Law
disregarded by the senior leaders and fellow party members. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition 12. The disagreements reached a tipping point when the

12. The disagreements reached a tipping point when the State Government proposed the

Lemurian Freedom of Religion Bill, 2018on April 27, 2018. Clause 3 of the bill stated that

no person shall convert or attempt to convert, directly or otherwise, any person from one religion to another,

either by use of force or by allurement or by any fraudulent means.” Clause 4 further stated that

anyone who converts any person from one religion to another, either by performing any ceremony by himself

for such conversion as a religious priest or by taking part directly or indirectly in such ceremony shall be

required to send notice to the District Magistrate” within the prescribed period. Clause 5 imposed

a fine of up to Rs. 1,00,000 /- and 3 years of imprisonment on anyone found guilty of

coercing religious conversions. If the conversions involved women, minors or members

of the underprivileged community, a fine of Rs. 10,00,000 /- and 4 years of imprisonment

were imposed.

13. In an unscheduled live televised address to the people of Lemuria at 08.00 pm on April 27,

the Chief Minister of Lemuria, Mr. Ajay Kumar guaranteed that the freedom of religion bill is

not aimed at any particular religion. It applies to everyone equitably.He further justified the bill by

stating that “conversion by self-conviction is not wrong, but conversion by force or allurement is definitely

an offence.However, some members of the ruling coalition along with Mr. Simha criticized

the bill stating that this law could undermine secularism and the right to freedom of

religion. They further feared that the proposed anti-conversion lawcould be misused to

torture specific minorities and other marginalised sections of the society which in turn

could trigger large scale violence in the State.

14. Based on experiences with similar laws in other regions of Kratos, many human rights

organizations and institutions also expressed their concerns about the lack of equitable

treatment under the bill and claimed that the proposed law do not comply with

international standards of freedom of religion provided under instruments such as the UN

of religion provided under instruments such as the UN Case Concerning the Constitutionality of Anti-Defection Law
of religion provided under instruments such as the UN Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition Declaration of Human Rights and the International Covenant on

Declaration of Human Rights and the International Covenant on Civil and Political Rights. The

protest against anti-conversion bill got a major thrust, when almost all major minorities’

organisations, marginalised groups, NGO’s and political parties, barring the KADF and

the LFP, participated in a demonstration on May 1 in Madrasapattinam, the capital of

Lemuria. Some top leaders of KADF suspected that Mr. Simha was one of the

masterminds behind this demonstration, even though he was not physically present during

the event.

15. KADF and LFP organised a counter meeting at the Vaigai Beach in Madrasapattinam on

May 2, which was attended by several non-political organisations including the Indigenous

Faith and Cultural Association of Kratos (IFCAF). IFCAF claims itself to be an umbrella

organisation of bodies representing the State’s indigenous faiths. The spokesman of

IFCAF Mr. Ornop Batra exclaimed before the audience that the proposed law is a “surgical

strike against proselytization.” He further exclaimed that unregulated conversions have

resulted in “loss of culture and loss of identity” and the bill is a welcome move to prevent the

rapid degradation of the indigenous culture of Lemuria.”

16. 19 th May 2018 was the date set for the voting of the anti-conversion bill. Considering the

significant opposition from his own coalition members as well as the rival parties, Mr.

Jagadish Dhanapal (JD), the President of KADF issued a whip to his fellow members to vote

in favour of the bill. Mr. Simha reached the assembly on 19 th May, signed the register to

mark his attendance and left the house without participating in the voting process. Due to

the strong opposition to the bill, many members voted against it. Mr. Simha’s absence

from voting lead to the reduction of KADF’s strength in total. As a result, the rival party’s

objection to disapprove the bill won by a very narrow margin and the bill was not passed.

Later that day, at some point in the early afternoon, Mr. Simha returned to the assembly.

However, by this time, the voting process was already over and the result was out.

the voting process was already over and the result was out. Case Concerning the Constitutionality of
the voting process was already over and the result was out. Case Concerning the Constitutionality of

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition 17. While scrutinising the results, Mr. JD suspected that

17. While scrutinising the results, Mr. JD suspected that some of the coalition members have

not voted in favour of bill. He found out that Mr. Simha and two independent members

(Ms. Amrich and Mr. Rajini) were absent for the voting. Taking cognizance of the matter,

Mr. JD issued show cause notice to Mr. Simha. While Simha justified his absence by

quoting unanticipated medical reasons, he did not provide any documentary proof for the

same.

18. On 30 th May 2018, in one Facebook live session, Mr. Simha vociferously criticized the

leadership of Mr. Ajay as the root cause for all problems in the State of Lemuria. He said

that the anti-conversion bill proposed by the Ajay Government shows lack of sensitivity

and empathy on the part of the Chief Minister towards minorities. He further expressed

his wholehearted support to the people’s fight for protecting the values of secularism and

multiracialism. The very next day, Mr. Simha along with two other members (Ms. Beepa

and Ms. Beepika) from his own party and two independents (Ms. Amrich and Mr. Rajini)

approached the Governor Mr. Kakarlal to express their discontent about the leadership

credentials of the Chief Minister. After meeting the Governor, Mr. Simha along with other

members told the press that the “overall conduct of the Chief Minister and his close confidantes are

contrary to the fundamental ideologies of the KADF.

19. Mr. JD forwarded a petition signed by the ruling party MLA’s to the Speaker of Lemurian

Legislative Assembly Mr. Srirampal and requested him to take action against Mr. Simha and

other members of his delegation which met the Governor under the anti-defection law.

The Speaker issued notice to the concerned parties and were asked to present their case

within 7 days. On the 7 h day, Mr. Simha prayed for an adjournment on medical emergency

grounds which was rejected by the Speaker.

medical emergency grounds which was rejected by the Speaker. Case Concerning the Constitutionality of Anti-Defection Law
medical emergency grounds which was rejected by the Speaker. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition 20. On the basis of the evidences adduced by

20. On the basis of the evidences adduced by both the parties within the prescribed deadline,

the Speaker held Mr. Simha liable for anti-party activities. He disqualified Simha and other

MLA’s who met the Governor, as their action of withdrawing support to the Chief

Minister amounts to defection under paragraph 2 of the Tenth Schedule to the Kratosian

Constitution. While justifying his decision, the Speaker said that political parties are

considered as the blood of parliamentary democracy. Hence, when public gave votes to a

particular candidate, it is because they supported the ideology and agenda of that political

party which he/she was representing and not merely to an individual person. He said that

criticizing governmental policy publicly in social media and remaining absent for voting by

ignoring the whip issued by party leader indicates Mr. Simha’s disloyalty towards the belief

and principles of his own party. He further held that Simha and other members conduct

of hobnobbing with the opposition is incompatible with the continuance of their

membership in the Assembly, as it was breach of party loyalty and political morality.

21. Aggrieved by the decision of the Speaker, the disqualified members approached the

Supreme Court of Kratos for the restoration of their membership by challenging the

constitutionality of Tenth Schedule of the Kratosian Constitution. In addition, they

challenged the Speaker’s decision on various grounds namely violation of their right to

honest dissent and freedom of conscience voting implicit in their fundamental right to free

speech and expression enshrined in Article 19 of the Constitution. They further stated that

the anti-defection law makes the leader of ruling party dictatorial and members of the party

his dummies. In any event, they asserted that their case fell outside the scope of anti-

defection law. They also asserted that the Speaker was biased, as mere criticism of the party

leaders does not lead to the inference of incurring disqualification under the aforesaid law.

The disqualified members particularly stressed the point that they did not give up party

membership at any point of time which was necessary to attract anti-defection law.

of time which was necessary to attract anti-defection law. Case Concerning the Constitutionality of Anti-Defection Law
of time which was necessary to attract anti-defection law. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition 22. Mr. Simha specifically mentioned that expressing displeasure

22.

Mr. Simha specifically mentioned that expressing displeasure against fellow party leaders

should not be construed as an anti-party act. He pointed out that as responsible leaders,

they were expected to fulfil the aspirations of voters and not the arbitrary decisions of the

Government. He noted that the manifesto of KADF for the 2018 election nowhere spoke

about the anti-conversion bill and therefore, he has every right to question the anti-

minority law proposed by his fellow lawmakers. He genuinely considered his stand on the

anti-conversion bill as rational and in accordance with the principles of representative

democracy. He felt MP’s and MLA’s are directly accountable to the people of his/her

constituency and not to the party.

23.

Mr. Simha further emphasized that freedom of speech and expression within the party is

a

quintessential feature of intra party democracy. As a member of the house, he has a

fundamental right and parliamentary privilege to conscientiously disagree with the policies

of the party to which he belongs to. He further questioned the impartiality of the

proceedings before the Speaker and suggested that the procedure to deal with defection

cases should be similar to the procedure governing the post-election disputes.

24.

KPP who was closely monitoring the developments in the Simha’s case decided to move

an application before the SC to hear Ruchy’s Case which is pending in the Lemurian High

Court together with Simha’s Case, as it felt that both cases involved similar set of issues.

 

******ALL THE BEST ******

Note:

i. The Moot Proposition is purely fictional. Resemblance of any kind to any person (living

or dead), name, company, property, political party, union, association or organisation etc.

is purely co-incidental.

association or organisation etc. is purely co-incidental. Case Concerning the Constitutionality of Anti-Defection Law
association or organisation etc. is purely co-incidental. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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TNNLU IUMCC, September 2018: Moot Proposition

TNNLU – IUMCC, September 2018: Moot Proposition ii. The proposition is a fictitious factual account prepared

ii. The proposition is a fictitious factual account prepared for the purposes of the present

moot competition only, and as such it does not attempt to influence or predict the outcome

of any matter whatsoever.

iii. The problem is set in the fictional Republic of Kratos, whose Constitution and other laws are

in pari materia with that of the Republic of India.

iv. The Participants are at liberty to frame the issues given in the Moot Proposition, which

they feel might be relevant and necessary for the adjudication the dispute.

v. This Moot Proposition is strictly for internal circulation and reference within TNNLU

only. It is not available for publication without permission.

It is not available for publication without permission. Case Concerning the Constitutionality of Anti-Defection Law
It is not available for publication without permission. Case Concerning the Constitutionality of Anti-Defection Law

Case Concerning the Constitutionality of Anti-Defection Law

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