Advocate

Topics: United States, Law, Appeal Pages: 6 (1223 words) Published: April 16, 2014


MOOT COURT CASE

WRIT PETITION

SAGAR

VERSUS

UNION OF INDIA

HARSHALADEVI PRATP KAMBLE
THIRD YEAR LLB
DIV: A ROLL NO.: 27

INDEX

Sr. No.
Particulars
1
Table of Contents
2
Statement of Authority
3
Statement of Jurisdiction
4
Statement of Facts
5
Questions of Law
6
Arguments
7
Prayer
1. TABLE OF CONTENTS

Sr. No.
Particulars
Information
1
Case Type
WRIT PETITION
2
Case Name
Sagar
v/s
Union of India
3
Name of Applicable Act
Constitution of India
Representation of Peoples Act
4
Petitioner
Sagar
5
Respondent
Union of India
6
Authority
1. Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) 2. Shri Manni Lal v. Shri Parmal Lal and Others [(1970) 2 SCC 462] 3. B.R. Kapur v. State of T.N. and Another [(2001) 7 SCC 231] 4. K. Prabhakaran v. P. Jayarajan etc. [(2005) 1 SCC 754]

5. Navjot Singh Sidhu v. State of Punjab and Another ([2007) 2 SCC 574]

2.STATEMENT OF AUTHORITY

As aforementioned

3. STATEMENT OF JURISDICTION

Article 226 & 227 of the Constitution of India

4. STATEMENT OF FACTS

1. Petitioner is Social Activist and does not have any personal interest in the subject matter of the present Writ Petition and seeks to challenge the constitutionality of the provisions of the Act.

2. In the year 1951 Parliament of India enacted The Representation of Peoples Act, 1951.

3. In the year 1989 Parliament of India inserted Section 8 (4) by way of amendment in the Representation of Peoples Act, 1951 it kept in abeyance the disqualification of the member of the Parliament / Legislative Assembly who has been convicted by the Court, till his appeal is finally disposed of by the competent court.

4. By way of present Writ Petition the Petitioner is seeking declaration of Section 8 (4) of the RP Act 1951, as invalid and ultra virus of the constitutional.

5. QUESTION OF LAW

Whether Section 8 (4) of the RP Act 1951, which keeps in abeyance the disqualification of the member of the Parliament / Legislative Assembly who has been convicted by the Court, till his appeal is finally disposed of by the competent court?

6. ARGUMENTS

1. Beyond Legislative Competence : In the absence of a provision in Articles 102 and 191 of the Constitution conferring power on Parliament to make a provision protecting sitting members of either House of Parliament or the Legislative Assembly or the Legislative Council of a State, from the disqualifications it lays down for a person being chosen as a member of Parliament or a State Legislature, Parliament lacks legislative powers to enact sub-section (4) of Section 8 of the Act and sub-section (4) of Section 8 of the Act is therefore ultra vires the Constitution.

2. The legal basis of sub-section (4) of Section 8 of the Act is based on an earlier judicial view in the judgment of a Division Bench of Supreme Court in Shri Manni Lal v. Shri Parmal Lal and Others [(1970) 2 SCC 462] that when a conviction is set aside by an appellate order of acquittal, the acquittal takes effect retrospectively and the conviction and the sentence are deemed to be set aside from the date they are recorded

3. In B.R. Kapur v. State of T.N. and Another [(2001) 7 SCC 231] a Constitution Bench of Supreme Court reversed the aforesaid judicial view and held that conviction, and the sentence it carries, operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well. This later view has been reiterated by a Constitution Bench of Supreme Court in K. Prabhakaran v. P. Jayarajan etc. [(2005) 1 SCC 754]. Thus as soon as a person is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, he becomes disqualified...
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