CODE: P31

ANNUAL UNIVERSITY MOOT 2018

BEFORE
THE HONOURABLE SUPREME COURT OF INDIA

UNDER ARTICLE 136 OF INDIAN CONSTITUTION

UNION OF INDIA…………………………………………………………PETITIONER
V.
CM OF CROSIA……………………………………………………….…RESPONDENT

MEMORIAL FOR THE PETITIONER

COUNSEL APPEARING ON THE BEHALF OF T HE PETITIONER

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS.................................................................................................. 2
INDEX OF AUTHORITIES ................................................................................................... 3
STATEMENT OF JURISDICTION .................................................................................................. 5
STATEMENT OF FACTS .............................................................................................................. 6
ISSUES RAISED ...................................................................................................................... 8
SUMMARY OF ARGUMENTS ..................................................................................................... 9
ARGUMENTS ADVANCED ....................................................................................................... 10
1. WHETHER THE POWER OF THE PRESIDENT UNDER ARTICLE 365 OF THE INDIAN
CONSTITUTION CAN BE SUBJECTED TO JUDICIAL REVIEW. ..................................................... 10

2. WHETHER THERE WERE SUFFICIENT GROUNDS IN THE STATE TO IMPOSE PRESIDENTIAL RULE
I.E. WHETHER THERE WAS A NEXUS BETWEEN THE REASONS AND ACTION. ........................... 13

3. WHETHER THE PRESIDENT WAS RIGHT IN EXERCISING HIS POWERS UNDER ARICLE 356 OF
THE CONSTITUTION. ............................................................................................................... 14

3.1. The conduct of State Government was contrary to the Provisions of the
Constitution. .................................................................................................................... 16

3.2. That the Floor Test can be skipped at certain circumstances. ............................ 17

PRAYER ................................................................................................................................... 19

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LIST OF ABBREVIATIONS

1. A.I.R - All India Reporter

2. Art. - Article

3. CJI - Chief Justice of India

4. Hon’ble - Honorable

5. i.e. - That is

6. J. - Judge

7. Ors. - Others

8. All. - Allahabad

9. Mad. - Madras

10. PIL - Public Interest Litigation

11. SC - Supreme Court of India

12. SCC - Supreme Court Cases

13. Sd/- - Signed

14. UP - Uttar Pradesh

15. v - Versus

16. ANP - Apelonian Nationalist Party

17. APP - Apelonian People’s Party

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INDEX OF AUTHORITIES

CASES

Barium Chemicals Ltd. and Anr. v. The Co. Law Board and Ors., [1966] Supp. 3 S.C.R.
311……………………………………………………………………………………………11

Clegorne v. Green, 328 US ……………………………………………………………….15

Emperor v. Benori Lal Sharma, A.I.R. 1945 P.C. 48………………………………………..15

G. Roy v. Tarpura Mukherji, A.I.R. 1973 Cal. 223…………………………………………..15

K.A. Mathialagan v. P. Srinivasan & others A.I.R.1973 Madras 371……………………….16

Kehar Singh and Anr v. Union of India and Anr., [1988] Supp. 3 S.C.R. 1103……………..12

K. K. Aboo v. Union of India, A.I.R. 1965 Ker. 229…………………………………………15

Madhava Rao Scindia v. Union of India, A.I.R. 1971 S.C.R. 39…………………………….16

Madras Bar Association v. Union of India and another (2014) 10 S.C.C. 1………………...16

Mam Ram v. Union of India and Anr.,1983CriLJ 1440……………………………………...12

M.A. Rashid and Ors. v. State of Kerala, [1975]2 SCR 93…………………………….…….11

Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr. (2006) 2 SCC 1…………..13

Ram Manohar Lohiya v. State of Bihar, 1966 AIR 740, 1966 SCR (1) 709………………...10

Rao Birender Singh v. Union of India, AIR 1968 P.H. 441..............................................…...16

R. C. Cooper v. Union of India, AIR1970 SC 564…………………………………….……..16

S.R. Bommai v. Union of India, AIR 1994 SC 1918………………………………...…….10,

14

State of Punjab v. Satya Pal Dang & others AIR 1969 SC 903………………………….…..16
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State of Rajasthan v. Union of India, 1977 AIR 1361…………………………….....10, 11, 18

Yitachu v. Union of India & others AIR 2008 Gauhati 103…………………………………16

STATUTES

Article 48, Constitution of India, 1950. ................................................................................... 11

Article 58(2)(b), Constitution of India, 1950. .......................................................................... 11
Article 58(2), Constitution of India, 1950. .............................................................................. 11

BOOKS

Dr. L.M. Singhvi, Constitution of India (3rd ed. Thomas Reuters 2013). .............................. 17
Shorter Oxford English Dictionary, (3rd ed.) .......................................................................... 17
Shorter Oxford English Dictionary, (3rd ed.). ......................................................................... 17

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STATEMENT OF JURISDICTION

The Appellants humbly submit this memorandum for three petitions filed before this
Honourable Court, which have been posted for final hearing by the Honourable Court. The
Special Leave Petition invokes Appellate Jurisdiction of this Honourable Court under Article
136 of the Constitution of India.

136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in an
cause or matter passed by any court or tribunal in the territory of India.

(2) nothing in Clause (1) shall apply to any judgment, determination, sentence, or order
passed or made by any court or tribunal constituted by or under any law relating to the armed
forces.”

This memorandum sets forth the facts, contentions and arguments for the appellants/
appellants in the given case.

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STATEMENT OF FACTS

1) The nation of Apelonia after gaining independence in 1947 from European powers,
enforced its own democratic, secular and socialist constitution in 1950. At present it consists
of 29 states and 7 union territories with its capital at New Ankara. Professor Wheare has
defined its constitution as “Quasi-Federal”. Its constitution provides for the Governor as the
representative of Union in the state and President’s rule on the failure of the constitutional
machinery of a state on his report. But over the last 50 years this power has been misused by
the Central Government to interfere in the working of the states in which it did not have a
majority. This has put a question upon the position of the Governor in the state.

2) In the 2014 general election, the Central Democratic Alliance won, with the Apelonian
People’s Party winning 31% of all votes. The United Advance Alliance, led by Apelonian
Nationalist Party won only 19.3% of the votes, this being ANP’s worst defeat in general
election. Adding the 7% of the people ruled by the CDA, APP rules around 43% of Apelonia.
In contrast to this, ANP rules over only 15% of Apelonia. Many leaders of APP have claimed
that they are progressing towards their goal of “ANP free Apelonia”.

3) ANP rules the state of Crosia, the most populous state of Apelonia which was previously a
part of North Utopia. Through North Utopia Reorganization Act, 2000 on 9th November,
2000, Crosia had become the 27th state of Apelonia. On 18th August, 2016, 9 MLAs of ANP
defected and joined the opposition party and were therefore disqualified by the Speaker under
the Anti defection law stated in the 10th Schedule of the Constitution. After the MLAs of APP
started to say that ANP has no right to run the government as it does not have majority, the
Speaker decided for the floor test on 28th August. One of the rebel MLAs presented a sting
video showing the CM discussing some figures with an individual, identified as a journalist
associated with a Hindi news channel, in an alleged effort to win back rebel MLAs to prove
his majority in the assembly of 28th August.

4) Considering the situation of the assembly, the governor of the state asked for the division
of reports on the money bill and audio and video of the assembly proceedings which were not
supposed to be made public and the same was submitted to the speaker emphasizing that the
reports shall be kept confidential. On its basis, the Governor prepared a report and submitted
it to the Central Government, recommending President’s rule in the state. The Centre was of
the view that continuance of the Crosian government was “immoral and unconstitutional”

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after 18th August 2016, when the Speaker declared Appropriation Bill “passed” without
allowing a division pressed by 33 MLAs including the 9 ANP legislators. The Union Cabinet
held an emergency meeting on 26th August to consider the report of the Governor. The CD of
the sting operation was said to have been considered by the cabinet which found it as a case
of horse trading and on the basis of the Governor’s report advised the President to impose his
rule which he did on 27th August.

5) Meanwhile, the recordings of the assembly submitted to the Governor was broadcasted on
a news channel and published in newspapers. The CM asserted it as being direct infringement
of the privileges of the House and the Governor was variously criticised. The CM said that
the decision to impose President’s rule was “a premeditated conspiracy hatched by the Centre
to dislodge the democratically elected ANP government in the state”. He was to prove his
majority in the House on 28th August but the Union Cabinet recommended President’s rule
and President issued the proclamation on 28th August.

6) A day after imposition of President’s rule in Crosia, the former CM moved to the Crosia
High Court in Guntal, arguing that invoking Article 356 was in “blatant violation of the
Constitution” as they were deprived of Floor test. The CM cited the case of another state
Uparganj, where the state government was overthrown by the Union. In this case, Apex Court
re-established the previous government and heavily condemned the act of the Union.
Granting the former CM a chance to prove his majority in the Assembly, the Crosia High
Court on 29th August ruled that fresh voting must take place on 15th September when “the
vote of confidence will be put to floor test”.

7) The Centre on 30th August moved to the Hon’ble Supreme Court under Article 136 of the
constitution challenging an interim order by a single bench of Crosia High Court directing a
floor test in the Assembly on 15th September, days after President’s rule was imposed in the
state. The Supreme Court stayed the status quo in the State of Crosia and admitted the
petition filed by the Centre and the matter would be taken up on 24th September.

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ISSUES RAISED

I. WHETHER THE POWER OF THE PRESIDENT UNDER ARTICLE 365 OF THE

INDIAN CONSTIUTION CAN BE SUBJECTED TO JUDICIAL REVIEW?

II. WHETHER THERE WERE SUFFICIENT GROUNDS TO IMPOSE

PRESIDENTIAL RULE?

III. WHETHER PRESIDENT WAS RIGHT IN EXERCISING HIS POWERS UNDER

ARTICLE 356 OF THE CONSTTUTION?

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SUMMARY OF ARGUMENTS

I. WHETHER THE POWER OF THE PRESIDENT UNDER ARTICLE 365 OF THE

INDIAN CONSTIUTION CAN BE SUBJECTED TO JUDICIAL REVIEW?

It is humbly submitted before the honourable court that the power of judicial review
exercised by the Supreme Court does not apply in this case. It is needless to emphasise that it
is not any material but material which would lead to the conclusion that the Government of
the State cannot be carried on in accordance with the provisions of the Constitution which is
relevant for the purpose. It has further to be remembered that the Article requires that the
President "has to be satisfied" that the situation in question has arisen.

II. WHETHER THERE WERE SUFFICIENT GROUNDS TO IMPOSE

PRESENDTIAL RULE i.e. WHETHER THERE WAS A NEXUS BETWEEN
REASONS AND ACTIONS?

It is humbly submitted that there were sufficient reasons in the state to conclude that there
was a breakdown of constitutional machinery in the state. There were attempts of bribing
legislators in the state. These have been held to be sufficient grounds for the imposition of
presidential rule in a state.

II. WHETHER THE PRESIDENT WAS RIGHT IN EXERCISING HIS POWERS

UNDER ARTICLE 356 OF THE CONSTTUTION?

It is humbly submitted that there is a wide range of situations where the President may act
under Article 356. The conduct of state government was contrary to the provisions of the
constitution. The floor test can be skipped at certain circumstances. If the act or order of the
President is questioned in a court of law, it is for the Council of Ministers to justify it by
disclosing the material which formed the basis of the act/order. It is stated that since the
Governor in submitting a report under Art. 356 of the Constitution does not act on the aid and
advice of the Council of Ministers, the State Government will not be in a position to defend
the action of the Governor.

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ARGUMENTS ADVANCED

1. WHETHER THE POWER OF THE PRESIDENT UNDER ARTICLE 365 OF THE INDIAN
CONSTITUTION CAN BE SUBJECTED TO JUDICIAL REVIEW.
It is humbly submitted before the honorable court that the power of judicial review exercised
by the Supreme Court does not apply in this case. In S.R. Bommai v Union of India1, it was
held that the Proclamation under Article 356 can be subject to judicial review. The power of
judicial review was first experienced in State of Rajasthan v Union of India2 where it was
held that there cannot be any uniform rule of law for Proclamation of Emergency, it varies in
different circumstances. Also in Ram Manohar Lohia v. State of Bihar3, it was held that
proclamation of emergency provisions are legitimate action but must be applied only when
the situation demands. It should be used cautiously to avoid interruption in the constitutional
mechanism.

Furthermore, it is contended that there is a difference in the nature and scope of the power of
judicial review in the administrative law and the constitutional law. The scope of judicial
review in the constitutional law extends only to preventing actions which are unconstitutional
or ultra vires the Constitution. The areas where the judicial power, therefore can operate are
limited and pertain to the domain where the actions of the Executive or the legislation
enacted infringe the scheme of the division of power between the Executive, the Legislature
and the judiciary or the distribution of powers between the States and the centre. The judicial
power has no scope in constitutional law beyond examining the said infringements. It is also
contended that likewise, the doctrine of proportionality or unreasonableness has no play in
constitutional law and the executive action and legislation cannot be examined and interfered
with on the anvil of the said doctrine.

Furthermore, the main argument against the order was that an order under the said provision
is to be issued not in subjective discretion or opinion but on objective facts in the sense that
the circumstances must exist to lead one to the conclusion that the relevant situation had
arisen. However, it is the subjective satisfaction of the President and it is in his discretion and
opinion to dissolve the National Assembly. It is also argued that in spite of the fact that

1
S.R. Bommai v. Union of India, [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC 1.
2
State of Rajasthan v. Union of India, 1977 AIR 1361, 1978 SCR (1).
3
Ram Manohar Lohiya v. State of Bihar, 1966 AIR 740, 1966 SCR (1) 709.

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Article 58(2)(b)4 states that "notwithstanding anything contained in Clause (2) of Article
485," the President may also dissolve the National Assembly in his discretion under Article
58(2)6 and when he does exercise his discretion to dissolve the Assembly, the validity thereof
cannot be questioned on any ground whatsoever as provided for under Article 48(2)7.

Also, in Barium Chemicals Ltd. and Anr. v. The Co. Law Board and Ors.8, it was held that
although the formation of opinion is subjective, the existence of circumstances relevant to the
inference as the sine qua non for action, must be demonstrable. If their existence is
questioned, it has to be proved at least prima facie. It is not sufficient to assert that the
circumstances exist, and give no clue to what they are, because the circumstances must be
such as to lead to conclusions of action definiteness. If it is shown that the circumstances do
not exist or that they are such that it is impossible for anyone to form an opinion therefrom
suggestive of the matters enumerated the opinion is challengeable on the ground of non-
application of mind or perversity or on the ground that it was formed on collateral grounds
and was beyond the scope of the statute.

Furthermore, in MA. Rashid and Ors. v. State of Kerala9, it was held that the standard of
reasonableness to which the administrative body is required to conform may range from the
courts opinion of what is reasonable to the criterion of what a reasonable body might have
decided; and courts will find out whether conditions precedent to the formation of the opinion
have a factual basis. But the onus of establishing unreasonableness rests upon the person
challenging the validity of the acts. Also, in the case of State of Rajasthan and Ors. etc. etc. v.
Union of India10, it has been held that if the satisfaction is mala fide or is based on wholly
extraneous and irrelevant grounds, the Court would have jurisdiction to examine it, because
in that case there would be no satisfaction of the President in regard to the matter which he is
required to be satisfied. The satisfaction of the President is a condition precedent to the
exercise of power under Article 356, Clause (1) and if it can be shown that there is no
satisfaction of the President at all, the exercise of the power would be constitutionally invalid
In Kehar Singh and Anr. etc. v. Union of India and Anr.11, it is held that the President's power
under Article 72 of the Constitution dealing with the grant of pardons, reprives, respites,

4
Article 58(2)(b), Constitution of India, 1950.
5
Article 48, Constitution of India, 1950.
6
Article 58(2), Constitution of India, 1950.
7
Article 48, Constitution of India, 1950.
8
Barium Chemicals Ltd. and Anr. v. The Co. Law Board and Ors., [1966] Supp. 3 S.C.R. 311.
9
M.A. Rashid and Ors. v. State of Kerala, MANU/SC/0051/1974 : [1975]2SCR93.
10
Supra 2.
11
Kehar Singh and Anr v. Union of India and Anr., [1988] Supp. 3 S.C.R. 1103.

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remissions of punishments or suspensions, remissions or commutations of sentences of any

person convicted of any offence falls squarely within the judicial domain and can be
examined by the court by way of judicial review However, the order of the President cannot
be subjected to judicial review on its merits except within the strict limitation defined in Mam
Ram v. Union of India and Anr.12. Those limitations are whether the power is exercised on
considerations or actions which are wholly irrelevant, irrational, discriminatory or mala fide.
Only in these rare cases the Court will examine the exercise of the said power.

From these authorities, one of the conclusions which may safely be drawn is that the exercise
of power by the President under Article 356(1) to issue Proclamation is subject to the judicial
review at least to the extent of examining whether the conditions precedent to the issuance of
the Proclamation have been satisfied or not. This examination will necessarily involve the
scrutiny as to whether there existed material for the satisfaction of the President that a
situation had arisen in which the Government of the State could not be carried on in
accordance with the provisions of the Constitution. It is needless to emphasise that it is not
any material but material which would lead to the conclusion that the Government of the
State cannot be carried on in accordance with the provisions of the Constitution which is
relevant for the purpose. It has further to be remembered that the Article requires that the
President "has to be satisfied" that the situation in question has arisen. Hence the material in
question has to be such as would induce a reasonable man to come to the conclusion in
question. The expression used in the Article is "if the President is satisfied".

Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President de
hors the material but a legitimate inference drawn from the material placed before him which
is relevant for the purpose. In other words, the President has to be convinced of or has to have
sufficient proof of information with regard to or has to be free from doubt or uncertainty
about the state of things indicating that the situation in question has arisen. Although,
therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of
inference drawn from such material is certainly open to judicial review. It is also contended
that the present is not a case of undue haste. The Governor was concerned to see the trend
and could legitimately come to the conclusion that ultimately, people would decide whether
there was an ’ideological realignment", then there verdict will prevail and the such realigned
group would win elections, to be held as a consequence of dissolution. It is urged that given a

12
Mam Ram v. Union of India and Anr.,1983CriLJ 1440.

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choice between going back to the electorate and accepting a majority obtained improperly,
only the former is the real alternative.

In the instant case, the proclamation of emergency was due to the defection of the said nine
members of the legislative assembly, thereafter the case of horse-trading could also be made
out by way of sting operation which was broadcasted in the news channels country-wide.
Thereafter, the recordings of the proceedings of the house and passing of the bill without
allowing a division pressed by 33 MLAs, including 9 rebel ANP legislators could also be
seen as a basis of emergency proclamation. Along with this, the situation in the state
worsened after the videos of the proceedings made public in the news channels. All these
considerations prompted the governor to recommend presidential rule in the state. Therefore,
it can be conclusively seen that there was no mala fide intention for such proclamation.

In the light of the facts and circumstances of the case, it can be humbly submitted that the
there was no mala fide intention for such proclamation of emergency.

2. WHETHER THERE WERE SUFFICIENT GROUNDS IN THE STATE TO IMPOSE PRESIDENTIAL

RULE I.E. WHETHER THERE WAS A NEXUS BETWEEN THE REASONS AND ACTION.

The counsel humbly submits that there were sufficient reasons in the state to conclude that
there was a breakdown of constitutional machinery in the state. There were attempts of
bribing legislators in the state. These have been held to be sufficient grounds for the
imposition of presidential rule in a state.

In Rameshwar Prasad and Ors. v. Union of India (UOI) and Anr.13 Governor of Bihar sent a
report on 27th April, 2005 to the President of India, inter alia, stating that the newspaper
reports and other reports gathered through meeting with various party functionaries/leaders
and also intelligence reports received, indicated a trend to gain over elected representatives of
the people and various elements within the party and also outside the party being approached
through various allurements like money, caste, posts etc., which was a disturbing feature.
According to the said report, the situation was fast approaching a scenario wherein if the
trend is not arrested immediately the consequent political instability will further give rise to
horse trading being practiced by various political parties/groups trying to allure elected
MLAs. That it would not be possible to contain the situation without giving the people
another opportunity to give their mandate through a fresh poll. The court validated the

13
Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr. (2006) 2 SCC 1.

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presidential rule imposed in the state holding these circumstances to be relevant and the
presence of a reasonable nexus between the reasons and action.

Also in SR Bommai case14 the court said that the report of 19th April, 1989 has to be read
with the second report of 20th April, 1989 wherein "atmosphere getting vitiated" and "horse-
trading" were referred. The court held that the "Pressurization of MLAs", "Horse-trading"
and "vitiating atmosphere" referred to in the report necessarily indicate the existence of facts
for the satisfaction that no other party was in a position to form the Government in
accordance with the Constitution. Fluctuating loyalties leading to unhealthy practice are
pointed out in the report. The democratic culture was being vulgarised. Vitiation of the
atmosphere was felt by the Governor. In the context of the prevailing situation the Governor
was certainly entitled to report to the President the aforesaid facts. The court was of the firm
view that the two reports of the Governor conveyed to the President the essential and relevant
facts from which the President could assess the situation for an action under Article 356 of
the Constitution.

Thus, going on the same line, in the present case, there were reports of pressurization of
MLAs, horse riding, bribing, making presidential rule in the state valid.

3. WHETHER THE PRESIDENT WAS RIGHT IN EXERCISING HIS POWERS UNDER ARICLE 356 OF
THE CONSTITUTION.

It is humbly submitted that there is a wide range of situations where the President may act
under Article 356. The important thing to notice is that the situations and there is no
'satisfactory criteria for a judicial determination' of what are relevant considerations. The very
absence of satisfactory criteria makes the question one which is intrinsically political and
beyond the reach of the Courts. The considerations which are relevant for action under
Article 356 and the weighing of those considerations appear to be clearly matters of political
wisdom, not for judicial scrutiny. Again it must be obvious that any attempt to settle a
controversy raised by a proclamation under Art. 356 will necessarily be followed by
tremendous consequences. The very vastness of those consequences makes it "impolitic or
inexpedic" for a Court to assume jurisdiction. Colegrove v. Green15. In Emperor v. Benori
Lal Sharma16, also the Privy Council asserted the proposition once again that the Governor
General was the sole Judge of the question whether and emergency existed. In R. C. Cooper

14
Supra 1.
15
Colegrove v. Green, 328 U.S. 549 (1945).
16
Emperor v. Benori Lal Sharma, A.I.R. 1945 P.C. 48.

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v. Union of India17, the question of the justifiability of the satisfaction of the President in
Promulgating an Ordinance was raised but was not answered by the Supreme Court. In
Madhava Rao Scindia v. Union of India18, Hidayatullah, C. J., who wrote a separate but
concurring judgment held that a charge of mala fide made against the President in the
discharge of his duties cannot be injured into by any Court. Nor could there be any probe into
the reasons for the action of the President. The learned Chief Justice relied on Articles 74 (2)
and 361 (1) of the Constitution. He observed.

Further it is not open to me to probe the reasons for decision by the President. To begin with
under Article74 (2) the question, whether any if so. What advice was tendered by the
ministers to the President cannot be inquired into by any Court. Again by Article 361 (1) the
President is not answerable to any Court for the exercise and performance of the powers and
duties of his office or for any act done or purporting to be done by him in the exercise of
those powers and duties except in an investigation of a charge under Article 361. All that is
saved is that appropriate proceedings against Government of India can be taken. Therefore,
whether the President acted rightly or wrongly in the matter may be decided against the
Government of India without questioning the conduct of the President. Therefore, the only
question open is whether the act of the President open is whether the act of the Constitution.
Thus according to the learned Chief Justice the Court was incompetent to go into the question
of mala fide or probe into the reasons for the action of the President though it could go into
question of ultra vires. Applying the views of the learned Chief Justice to the facts of the
present case, it is clear that the respondent cannot invoke this Court's jurisdiction to question
the President's proclamation either on the ground of mala fide or on the ground that there
were no grounds, any probe into the mind of the President or the reasons for the action being
prohibited. The conclusion that the satisfaction of the President is not a justifiable issue is
supported by the decisions in K. K. Aboo v. Union of India19 , Rao Birender Singh v. Union of
India20, and G. Roy v. Tarpura Mukherji21.

17
R. C. Cooper v. Union of India, A.I.R.1970 S.C. 564.
18
Madhava Rao Scindia v. Union of India, A.I.R. 1971 S.C.R. 39.
19
K. K. Aboo v. Union of India, A.I.R. 1965 Ker. 229.
20
Rao Birender Singh v. Union of India, A.I.R. 1968 P.H. 441.
21
G. Roy v. Tarpura Mukherji, A.I.R. 1973 Cal. 223.

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3.1. The conduct of State Government was contrary to the Provisions of the
Constitution.
The Counsel would humbly submit that it would remain relevant. He would submit that this
single incident is sufficient. He would further submit that here is a Chief Minister, who is
personally involved in horse trading, as is established through the sting operation. There was,
therefore, material in this case, which positively proved horse trading, and unlike in the
Bommai's case and Rameshwar Prasad's case, this case is distinct; in that, the respondent,
who is the former Chief Minister, was caught on tape, both audio and visual committing acts,
which is not expected from a Chief Minister. Therefore, the Central Government was
justified. The sting operation is emphasized.

The disqualification proceeding against the 9 dissident members culminating in

disqualification on 18.08.2016 is alluded to. The composition of the House on 28.08.2016
was not the alter ego of the House on 18.08.2016. There had been a radical change by virtue
of the disqualification ordered by the Speaker in a hasty manner, which betrayed unequal
operation of the same law. All this together justify the action. At any rate, excluding
everything else, the event on 18.08.2016 was, by itself, sufficient. Reliance is placed on the
judgments of the Apex Court in the cases of State of Punjab vs. Satya Pal Dang & others,22;
Madras Bar Association vs. Union of India and another23, Yitachu vs. Union of India &
others24, and K.A. Mathialagan vs. P. Srinivasan & others25, all for the proposition that
Article 212 cannot deprive even the courts when it comes to a violation of a substantive
nature or an infraction of a constitutional mandate. In this case, the action of the Speaker was
completely destructive of the very basis of democracy, namely, the right to vote in the
Assembly in accordance with the rules binding on the Speaker. The Speaker cannot run riot.
Reference is made to the judgments of the Apex Court in the cases of State of Punjab vs.
Satya Pal Dang & others (supra), as also K.A. Mathialagan vs. P. Srinivasan & others (Full
Bench); besides Yitachu vs. Union of India & others (supra). He would submit that, if the
Cabinet thought it fit to rely on the circumstances to impose President's Rule, the Court may
not interfere.

22
State of Punjab v. Satya Pal Dang & others A.I.R. 1969 S.C. 903.
23
Madras Bar Association v. Union of India and another (2014) 10 S.C.C. 1.
24
Yitachu v. Union of India & others A.I.R. 2008 Gauhati 103.
25
K.A. Mathialagan v. P. Srinivasan & others A.I.R.1973 Madras 371.

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3.2. That the Floor Test can be skipped at certain circumstances.

It is humbly submitted before the honourable court that floor test can be skipped at certain
circumstances. If the act or order of the President is questioned in a court of law, it is for the
Council of Ministers to justify it by disclosing the material which formed the basis of the
act/order26. It is stated that since the Governor in submitting a report under Art. 356 of the
Constitution does not act on the aid and advice of the Council of Ministers, the State
Government will not be in a position to defend the action of the Governor. It is also slated
that the 2nd proviso to Art. 361(1) of the Constitution not being attracted to situations where
the Governor under the Constitution acts in his discretion and not on the aid and advice of the
Council of Ministers, the Governor is immune from any Court proceedings under Art. 361 of
the Constitution and cannot be made a party to any proceeding. It is also pleaded that as the
report of the Governor would not be open to challenge, the proclamation under
Art. 356 cannot be brought under challenge, and similarly as the decision of the President is
based both on the report of the Governor and on other information the proclamation is not
open to challenge inasmuch as:

(a) the report of the Governor cannot be challenged in view of Art. 361 of the
Constitution and

(b) the other information before the President cannot be brought before the Court in view
of the mandate of Arl. 74 of the Constitution.27

It is further pleaded that the decision taken in issuing proclamation under Art. 356 of the
Constitution is arrived at by the President on the recommendation of the Council of
Ministers, which advice as contemplated by Art. 74 cannot be enquired into by any Court,
and in view of the aid and advice tendered by the Council of Ministers and the report of
the Governor and the other information on the basis of which the President has issued the
proclamation under Art.28 356 of the Constitution, the proclamation cannot be made the
subject-matter of any proceedings before the Court. As per the facts of this case the
Governor took into consideration the overall facts and circumstances prevailing in the
State and thereafter submitted a report and that therefore the proclamation issued by the
President in the circumstances of the case is perfectly valid.

26
Shorter Oxford English Dictionary, (3rd ed.).
27
Dr. L.M. Singhvi, Constitution of India (3rd ed. Thomas Reuters 2013).
28
M.P. Jain, Indian Constituional Law ( 7th ed. LexisNexis 2014).

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There are two aspects of the matter viz.

(i)justifiability and the parameters within which the court can examine the matter, and (ii)
merits.

It is argued that the satisfaction of the President being made deliberately subjective,
cannot be tested by reference to objective tests and that the sufficiency of the grounds on
which the order was based was beyond judicial scrutiny. On the question of justifiability,
the learned council very fairly conceded that if the Government stales that action was
taken on a specified ground and that that ground falls completely outside the scope of Art.
356 of the Constitution, the Court would have jurisdiction to interfere or if the
Government's own disclosure reveals that extraneous or collateral purposes are sought to
be achieved then again, the court can interfere; but if the grounds disclosed have
relevance or reasonable or rational nexus to the satisfaction reached under Art. 356 of the
Constitution, then the sufficiency or otherwise of the grounds on which the impugned
action was based cannot be gone into.

The council further contended that if what is disclosed is not the only ground and if all
the grounds are not before the Court, the Court will have no power to ask for the
disclosure of the undisclosed grounds, nor has it the power to interfere with the impugned
action by reason of such non-disclosure. The learned Attorney General emphasised that
the decision under Art. 356(1) of the Constitution to issue a proclamation being largely a
political judgment based on diverse and varied factors, such a decision cannot be regarded
as one based on "judicially discoverable and manageable standards" and further, if the
facts disclosed lie in the field or an area purely of a political nature, it would in fact be
prohibited field or area for the Court even to enter.29

The basic judgment on the subject is Rajasthan case30 which dealt with several suits and
writ petitions filed in the Supreme Court apprehending dissolution of the State
Assemblies by the President in exercise of his powers under Art. 356(1) of the
Constitution. Though those suits and writ petitions in which injunctive reliefs were sought
against the Union of India from taking action under Art. 356 of the Constitution on the
basis of a letter written by the then Home Minister Sri Charan Singh and certain speech
made by the then Law Minister Sri Shanti Bhushan, were held to be not maintainable. It is

29
Supra 2.
30
Id.

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humbly submitted before the honourable court that floor test can be skipped at certain
circumstances.

Prayer

In the light of arguments advanced and authorities cited, the Appellants humbly submit
that the Hon’ble Court may be pleased to adjudge and declare:

1. To quash the interim order of Crosia’s High Court.

2. To declare that invoking article 356 was not violation of the constitution.

Or any other order as it deems fit in the interest of equity, justice and good
conscience.

Sd/-

(Counsels for the petitioners)

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