TEAM CODE

124

BEFORE THE HON’BLE SUPREME COURT OF INDUSLAND

IN THE MATTER OF
MR. RUDRA PRATAP………………………………………………………PETITIONER

VS.

GOVERNOR OF EASTLAND……………………………………….…..RESPONDENT

(PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDUSLAND)

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

JUSTICW P.B. SAWANT

SEVENTH NATIONAL MOOT COURT COMPETITION,
2019
 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

LIST OF ABBREVIATIONS AND SYMBOLS……………………………………………

3

INDEX OF AUTHORITIES…………………………………………………………………
4

BOOKS & COMMENTARIES………………………………………………….4

STATUTES …………………………………………………………..………….4

WEBSITES……………………………………………………….……..………..5

JUDICIAL DECISIONS………………………………….…………..…………..5

STATEMENT OF JURISDICTION……………………………………………………….6

STATEMENT OF RELEVANT FACTS …………………………………………..…… 7-9

STATEMENT OF ISSUES…………………………………………………………..…….10

SUMMARY OF PLEADINGS…………………………………………………………11-12

ARGUMENT ADVANCED…………………………………………………………….13-26

1. WHETHER THE SUPREME COURT HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETITION? …………………………………..13-15

2. WHETHER THE DISCRETIONARY POWER EXERCISED BY THE

GOVERNOR IN INVITING MR VIJAY RAO TO FORM THE GOVERNMENT
WAS ACCORDING TO THE CONSTITUIONAL PROVISIONS ?..............16-18

3. WHETHER THE APPOINTMENT OF PRO TEM SPEAKER WAS

CONSTITUIONALLY VALID?........................................................................19-21

4. WHETHER THE DECISION OF GOVERNOR TO RECOMMEND

DISSOLUTION OF THE ASSEMBLY AND PRESIDENTIAL RULE WITHOUT
GIVING AN APPORTUNITY TO MR RUDRA PRATAP WAS IN ACCORDANCE
WITH THE CONSTITUIONAL MANDATE?..................................................22-26

THE PRAYER ………………………………………………………………………….27

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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LIST OF ABBREVIATIONS

¶ Para

AIR All India Record

Ed. Edition

Kar Karnataka

Del Delhi

U P. Uttar Pradesh

Ors Others

P. Page

SCC Supreme Court Cases

SCR Supreme Court Report

SLP Special Leave Petition

SC Supreme Court

Vs. Versus

CA Civil Appeal

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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INDEX OF AUTHORITIES

BOOKS & COMMENTARIES

• D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA,

INDIA, 2007, 8TH EDITION, VOLUME I AND II

• D.D. BASU, CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 8TH

EDITION

• D.D. BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA,

2009, 14TH EDITION

• D.D. BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW, LEXIS NEXIS,

INDIA, 2008, 3RD EDITION

• DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, WADHWA,

INDIA, 2007, 2ND EDITION, VOLUME I AND II

• H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL

PUBLICATIONS, INDIA, 2004, 4TH EDITION, VOLUME I, II AND III

• D.J. DE, CONSTITUTION OF INDIA, ASIA LAW HOUSE, INDIA, 2008, 3RD

EDITION

• M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 2010, 6TH

EDITION

STATUTES

• CONSTITUTION OF NDIA, 1950

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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WEBSITES

• www.lexisnexisacademic.com

• www.scconline.com

• www.manupatra.com

JUDICIAL DECISIONS

 S. R. Bommai vs. UOI.

 Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly&
Ors S. Nagaraj vs. State of Karnataka
 Rameshwar Prasad v. Union of India, 2006
 Surendra Vassant Sirsat vs. Legislative Assembly Of State Of Goa  
 Godavari’s Misra versus Nandakisore Das, Speaker, Orissa Legislative Assembly
 Nabam Rebia and Etc. Etc. vs. Deputy Speaker And Ors
 Shiv Sena vs. union of India
 Harish Chandra Rawat Vs. Union of India 2016

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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STATEMENT OF JURISDICTION

IT IS HUMBLY SUBMITTED THAT THE PETITIONER HAS APPROACHED THE

HON’BLE SUPREME COURT OF INDUSLAND INVOKING ITS JURISDICTION
UNDER ARTICLE 32” OF THE CONSTITUTION OF INDUSLAND.

“Article 32. Remedies for enforcement of rights conferred by this Part

(1)  The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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STATEMENT OF RELEVANT FACTS

1. Eastland, situated in southern part of the Indusland is one of its important developed states.
The Eastland Democratic Party (EDP) is one of the influential regional parties in Eastland.
2. In 2009 state assembly election the EDP had won 35 seats in 190 member’s legislative
assembly.
3. In 2014 election, the EDP got majority with 100 seats and it formed government with Mr
Rudra Pratap as a Chief Minister. This government took various popular decisions including
80 % reservation in state government employment to the ‘Sons of Soil’.

4. Further, Mr Rudra Pratap had difference of opinions with the Governor of state, Mr Vinay
Prajapati on various important issues which resulted in confrontations even in public places,
few times. The turf wars between these two important constitutional functionaries has
resulted into holding of many important policy decisions by Governor’s office by giving
plentiful reasons. Regarding this, the Governor expressed his inability to go beyond the
constitutional framework for the sake of accepting the popular demands made by the Chief
Minister and his cabinet. On the contrary, the Chief Minister expressed the opinion that the
Governor should not work as a hurdle in the progressive path adopted by the ruling party but
by co-operating with the government should respect the majority and allow the ruling party to
serve the people.

5. The state assembly election in December, 2019 witnessed some significant events where
many loyalists from all most all parties had changed their political loyalty and joined other
political parties against which they fought for decades together. In the assembly election no
political party got the majority. The EDP as a ruling party secured only 85 seats. However, as
a single largest party in a state it considered that it has a rightful claim to form the
government. It also had a plan to take the help of Independent MLAs to form the government.
The second largest party was NWC with 80 MLA’s elected and as claimed by their
spokesperson in a discussion on T.V. channel that they had the support of 10 MLA’s of IPI
and some other Independent MLA’s. This party also considered itself a legitimate claimant to
form the government and expected an invitation from the Governor.

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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6. As it was the case of hung assembly, the Governor in exercise of his constitutional power
invited Mr Vijay Rao, leader of NWC to form the government and administered him an oath
as a Chief Minister. Mr Rudra Pratap felt aggrieved by the decision of the Governor and
considered it as a revenge of past conflicts.

7. The Governor appointed Mr Chandra Kumar senior most member of the NWC as the pro
tem speaker. He also called special session of the assembly for floor test. Accordingly, the
pro tem speaker administered oath to newly elected members and confidence motion was put
before the assembly according to rules which ultimately was rejected with majority. The
discussion on confidence motion continued for days together which was alleged to be in
favour of ruling party allowing it the maximum time and opportunity to save the government.
The EDP alleged that the Governor through the speaker wanted to delay the result of floor
test and hence attempted to interfere and influence the legislative proceedings. The
Governor’s action was perceived as a plan to prevent the formation of EDP government in
the state.

8. After the failure of Mr Vijay Rao to prove the majority in the assembly, the Governor was
expected to give an opportunity to Mr Rudra Pratap to form the government being the leader
of single largest party. There was a news in the electronic media that Governor Office’s was
planning to give invitation to Mr Rudra Pratap to form the government. However, in a
dramatic situation, subsequently unfolded, ten MLA’s belonging to NWC and IPI with some
Independent MLA’s while speaking in press conference alleged that they were offered 10
crore each to remain absent or resign from the membership of legislative assembly before
floor test. The move was alleged to be taken on the direction of Mr Rudra Pratap.

9. Taking the cognizance of the allegations against the EDP, the Governor recommended
dissolution of assembly to the president which was accepted. The recommendation was
attempted to be justified as the only way to protect the constitutional morality and purity of
democratic process. The official statement issued by the Governor’s office expressed the
concern that present political condition in the state was more prone to horse trading and the
EDP would not be able to give stable government.

10. Disappointed with the move of the Governor, Mr Rudra Pratap approached to the
Supreme Court of Indusland. He mentioned that the Supreme Court as the sentinel on the qui

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vive of the constitution is under an obligation to see that its cherished principles should
prevail over individual’s arbitrary behaviour. According to his petition, action of Governor
was against the constitutional philosophy and the appointment of pro tem speaker was
violative of constitutional conventions. It was also contended that dissolution of the assembly
by denying a fair chance to the largest party to form the government and dissolution of the 4
assembly on mere suspicion without proof cannot be said to be the judicious decision of
constitutional functionaries like the Governor.

12. In response to the petition the Governor pleaded that the constitution has conferred wide
discretionary power on him specifically in case of a hung assembly. He justified his action as
an honest attempt to uphold the constitutional sanctity. He also argued that court should not
entertain the petition as been opposed to the doctrine of separation of powers which has been
recognized as a basic structure of the constitution.

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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ISSUE RAISED

1. WHETHER THE SUPREME COURT HAS THE JURISDICTION TO ENTERTAIN

THE PRESENT PETITION?

2. WHETHER THE DISCRETIONARY POWER EXERCISED BY THE GOVERNOR

IN INVITING MR. VIJAY RAO TO FORM THE GOVERNMENT WAS
ACCORDING TO THE CONSTITUTIONAL PROVISIONS?

3. WHETHER THE APPOINTMENT OF THE PRO TEM SPEAKER WAS

CONSTITUTUIONALLY VALID?

4. WHETHER THE DECISION OF THE GOVERNOR TO RECOMMEND

DISSOLUTION OF THE ASSEMBLY AND PRESIDENTIAL RULE WITHOUT
GIVING AN OPPORTUNITY TO MR. RUDRA PRATAP WAS IN
ACCORDANCE WITH THE CONSTITUTIONAL MANDATE?

SUMMARY OF ARGUMENTS

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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1. WHETHER THE SUPREME COURT HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETITION?
 That the jurisdiction of this Hon’ble court under article 32 has a very wide and
comprehensive purview. Judicial review is the power of Supreme Court to examine
and review the constitutionality of legislative and executive acts. The powers of the
Supreme Court under Article 32 are plenary and are not fettered by any legal
constraints. The question of maintainability of the present petition is not sustainable
and this is a matter falling within the jurisdiction of this Hon’ble Court under the
ambit of judicial review.

2. WHETHER THE DISCRETIONARY POWER EXERCISED BY THE

GOVERNOR IN INVITING MR. VIJAY RAO TO FORM THE
GOVERNMENT WAS ACCORDING TO THE CONSTITUTIONAL
PROVISIONS?
 The fact that there was no party with majority and a case of hung assembly, the
Hon’ble governor was expected to invite the leader of the single largest party to form
the government but the Hon’ble Governor choose to gloss over the precedents and
also ignored the Sarkaria commission report.

3. WHETHER THE APPOINTMENT OF THE PRO TEM SPEAKER WAS

CONSTITUTUIONALLY VALID?
 Hon’ble governor in exercise of his constitutional power appointed a pro tem speaker
of the legislative assembly who is comparatively a junior member of the legislative
assembly and it is submitted that though various senior member were available and as
per constitutional convention the senior-most member should have been appointed as
pro tem speaker, but that convention has been given a go-by

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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4. WHETHER THE DECISION OF THE GOVERNOR TO RECOMMEND

DISSOLUTION OF THE ASSEMBLY AND PRESIDENTIAL RULE
WITHOUT GIVING AN OPPORTUNITY TO MR. RUDRA PRATAP WAS IN
ACCORDANCE WITH THE CONSTITUTIONAL MANDATE?

 Hon’ble Governor’s decision to recommend dissolution of Legislative Assembly and

subsequent imposition of the president’s rule in Eastland without giving a fair chance
to Mr Rudra Pratap to form a Government and prove his majority on the floor of the
House is repugnant to the Constitutional Mandate, therefore Ultra Vires

ADVANCED ARGUMENT
ISSUE NO.01
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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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1. WHETHER THE SUPREME COURT HAS THE JURISDICTION TO

ENTERTAIN THE PRESENT PETITION?

A. THE SUPREME COURT HAS THE JURISDICTION TO HEAR THE PRESENT

MATTER

A.1 It is submitted before this Hon’ble Court that the question of maintainability with
regards to the present petition is unwarranted and uncalled for. In the present case the
impugned decision of the governor to recommend dissolution of the state assembly
and subsequent proclamation of the president is based on wholly irrelevant and
extraneous grounds and also suffers from mala fide. As is evident from the facts that
upon the declaration of the results of the election, there was a hung assembly with no
party with majority to form the government.
A.2 The petitioner is the leader of the party which had secured victory over 85 legislative
assembly seats and emerged as the single largest party. As per the constitutional
conventions the governor was supposed to invite the leader of the single largest party
to prove the majority but to the great dismay of the petitioner the Hon’ble Governor
invited Mr Vijay Rao to form the government. (Arguments on this issue are further
advanced in Issue 2.)
A.3 Further a pro tem speaker was appointed to conduct the floor test, it is submitted that
the appointment of the pro tem speaker was also done by the Hon’ble Governor by
departing from the constitutional convention. (Arguments on this issue are further
advanced in issue 3.).
A.4 The Pro Tem speaker conducted the floor test, wherein Mr Vijay Rao failed to prove
his majority on the floor of the house. The petitioner expected the Hon’ble Governor
to invite him to form the Government as per conventions, but to the utter
astonishment of the petitioner the Hon’ble Governor recommended dissolution of
State assembly. It is further submitted that the recommendation was based on press
conference conducted by Ten M.L.A(s) belonging to NWC Party, which earlier had
failed to prove their majority on the floor of the house and some of them belonging to
IPI and some of them independent.

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A.5 It is further submitted that the claim of such ten members of Legislative assembly is
based on wholly irrelevant material to be acted on by the Governor as they were not in
any way connected to the fact of Mr Rudra Pratap proving his majority on the floor of
the House, which is the only way to prove the majority. It is therefore submitted that
the proclamation of the Hon’ble President is based on irrelevant and extraneous
ground and also suffer from Mala Fide. To suffice the above it is important to make
reference to the decision of this Hon’ble Court in S. R. Bommai vs. UOI1. Wherein
this Hon’ble Court Held that the decision of the President to issue Proclamation not to
be immune from the Scope of Judicial Review.
“The Proclamation under Article 356(1) is not immune from judicial review.
The Supreme Court or the High Court can strike down the Proclamation if it
is found to be mala fide or based on wholly irrelevant or extraneous grounds.
The deletion of clause [which was introduced by 38th (Amendment) Act] by
the 44th (Amendment) Act, removes the cloud on the reviewability of the
action. When called upon, the Union of India has to produce the material on
the basis of which action was taken. It cannot refuse to do so, if it seeks to
defend the action. The court will not go into the correctness of the material or
its adequacy. Its enquiry is limited to see whether the material was relevant to
the action. Even if part of the material is irrelevant, the court cannot interfere
so long as there is some material which is relevant to the action taken. If the
court strikes down the Proclamation, it has the power to restore the dismissed
Government to office and revive and reactivate the Legislative Assembly
wherever it may have been dissolved or kept under suspension. In such a case,
the court has the power to declare that acts done, orders passed and laws
made during the period the Proclamation was in force shall remain unaffected
and be treated as valid. Such declaration, however, shall not preclude the
Government/Legislative Assembly or other competent authority to review,
repeal or modify such acts, orders and laws. The Constitution of India has
created a federation but with a bias in favour of the Centre. Within the sphere
allotted to the States, they are supreme2.”

1
[1994] 2 SCR 644
2

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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A.6 It is also submitted before this Hon’ble Court that this Court may also exercise its
jurisdiction in view of the judgement delivered by this Hon’ble Court in Shrimanth
Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly& Ors 3,
wherein this Hon’ble court emphasized that
“The requirement of imbibing constitutional morality by the constitutional
functionaries. Undemocratic and illegal practices within the political arena
should be curtailed. “Before parting, having ascertained the ambit of the
Speaker’s power, the only regret this bench has, is with respect to the conduct
and the manner in which all the constitutional functionaries have acted in the
current scenario. Being a constitutional functionary, the Constitution requires
them and their actions to uphold constitutionalism and constitutional
morality. In this regard, a functionary is expected to not be vacillated by the
prevailing political morality and pressures. In order to uphold the
Constitution, we need to have men and women who will make a good
Constitution such as ours, better.”
A.7 It is further submitted that the observation of this Hon’ble Court in S. Nagaraj vs.
State of Karnataka 4
are worth pondering, this Hon’ble court held that the powers
under Article 32 to be plenary and not fettered by any legal constraints.

“The powers of the Supreme Court under Article 32 are plenary and are not
fettered by any legal constraints. If in the exercise of these powers, the Court
Commits a mistake, the Court has plenary powers to correct the mistake”.

In view of the above it is therefore submitted that the question of maintainability of

the present petition is not sustainable and this is a matter falling within the
jurisdiction of this Hon’ble Court under the ambit of judicial review.

ISSUE NO.02

(II) WHETHER THE DISCRETIONARY POWER EXERCISED BY THE

GOVERNOR IN INVITING MR. VIJAY RAO TO FORM THE GOVERNMENT
WAS ACCORDING TO THE CONSTITUTIONAL PROVISIONS?
3
, 2019 WP (C) No. 992 of 2019,
4
JT 1993 (4) SC 27

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
MEMORIAL ON BEHALF OF THE PETITIONER

1. It is humbly submitted before this Hon’ble Court that the decision of the Governor
inviting Mr Vijay Rao to form the government was not in consonance with the
provisions of the constitution. The fact that there was no party with majority and a
case of hung assembly, the governor was expected to invite the leader of the single
largest party to form the government but the Hon’ble Governor choose to gloss over
the precedents and also ignored the Sarkaria commission report. As per the Sarkaria
Commission report5, if there is a single largest party having an absolute majority in
the Assembly, the leader of the party should automatically be asked to become the
Chief Minister. However, if there is no such party, the Governor should select a Chief
Minister from among the following parties or group of parties by sounding them, in
turn, in the order of preference indicated below:
1. An alliance of parties that was formed prior to the Elections.
2. The largest single party staking a claim to form the government with the
support of others, including “independents.”
3. A post-electoral coalition of parties, with all the partners in the coalition
joining the Government.
4. A post-electoral alliance of parties, with some of the parties in the alliance
forming a Government and the remaining parties, including “independents”
supporting the Government from outside. Further it is important to mention
here that the Sarkaria Commission has been heavily relied upon in S. R.
Bommai (Supra) and the binding factor to follow it is to be inferred from its
subsequent references by this Hon’ble Court in catena of judicial
pronouncement including the Decision of this Hon’ble Court in Shrimanth
Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly&
Ors, 20196. (supra)
2. It is further submitted before this Hon’ble Court that in Rameshwar Prasad v.
Union of India, 20067, this court while making reference to the need of following the
report of Sarkaria Commissions made the following observations:-

5
Sarkaria Commission Report 1983
6
2019 WP (C) 992 / 2019

7
WP (c)257/ 2005

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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“As noted above, the Governor occupies a very important and

significant post in the democratic set up. When his credibility is at
stake on the basis of allegations that he was not performing his
constitutional obligations or functions in the correct way, it is a sad
reflection on the person chosen to be the executive Head of a
particular State. A person appointed as a Governor should add glory
to the post and not be a symbolic figure oblivious of the duties and
functions which he has is expected to carry out. It is interesting to note
that allegations of favouritism and mala fides are hurled by other
parties at Governors who belonged or belong to the ruling party at the
Centre, and if the Governor at any point of time was a functionary of
the ruling party. The position does not change when another party
comes to rule at the Centre. It appears to be a matter of convenience
for different political parties to allege mala fides. This unfortunate
situation could have been and can be avoided by acting on the
recommendations of the Sarkaria Commission and the Committee of
the National Commission to Review the Working of the Constitution in
the matter of appointment of Governors. This does not appear to be
convenient for the parties because they want to take advantage of the
situation at a particular time and cry foul when the situation does not
seem favourable to them. This is a sad reflection on the morals of the
political parties who do not lose the opportunity of politicizing the post
of the Governor. Sooner remedial measures are taken would be better
for the democracy. It is not deficiency in the Constitution which is
responsible for the situation. It is clearly attributable to the people
who elect the Governors on considerations other than merit. It is a
disturbing feature, and if media reports are to be believed, Raj
Bhawans are increasingly turning into extensions of party offices and
the Governors are behaving like party functionaries of a particular
party. This is not healthy for the democracy”.

3. It is further submitted before this Hon’ble Court that the need of following
conventions in a matter such as the present matter is paramount, the same is evident

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from the decision of this Hon’ble court in Rameshwar Prasad v. U O I (Supra),

wherein this court while emphasising the need to follow conventions Held:-
“Conventions evolve from experience and from trial and error. The working
of our Constitution during the past twenty-one years has exposed not so much
any weaknesses in our political life. Some of the weaknesses will be evident
from the discussions in the earlier part of this Report. The Governors, under
our Constitution, do not govern; government is the primary concern of the
Council of Ministers which is responsible to the Legislature and the people.
Therefore, for a purposeful evolution of conventions, the willing co-operation
of the political parties and their readiness to adhere to such conventions are
of paramount importance.
4. It is further submitted that governor while inviting Mr Vijay Rao to form the
government acted hastily as composite floor test may be conducted in order to
determine the majority of the party on the floor of the house. by placing reliance on
Jagdambika Pal vs State of U.P. 8 the Supreme Court directed convening of special
session of the Assembly and to have a composite floor test between contending
parties to ascertain who out of two enjoys a majority in the Assembly.

In view of the above it is therefore submitted before this Hon’ble Court that the decision of
the Hon’ble Governor may be held to be ultra vires and further guidelines may be issued to
ensure adherence to the recommendations of Sarkaria Commissions.

ISSUE NO.03

(III) WHETHER THE APPOINTMENT OF THE PRO TEM SPEAKER WAS

CONSTITUTUIONALLY VALID?

8
JT 1998 (4) SC 319

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 Justice P. B. Sawant Seventh National Moot Court Competition 2019-20
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1. It is humbly submitted before this hon’ble court that the Hon’ble governor in exercise
of his constitutional power appointed a pro tem speaker of the legislative assembly
who is comparatively a junior member of the legislative assembly and it is submitted
that though various senior member were available and as per constitutional
convention the senior-most member should have been appointed as pro tem speaker,
but that convention has been given a go-by.
2. It is humbly submitted before this Hon’ble court that the vacant post of speaker of the
assembly a pro tem speaker should be appointed who must be a senior-most member
of the assembly (in terms of membership). As per the constitution Under Article
180(1) of the Constitution when the Speaker or Deputy Speaker positions are vacant,
the duties of the Office should be performed by ‘such member of the Assembly as the
Governor may appoint for the purpose’ i.e. Pro-tem speaker
3. The exercise of the powers by the Hon’ble governor in appointing the pro tem
speaker was contrary to the tradition, as per which the post goes to the senior-most
legislator, A brazen unconstitutional act to appoint a junior MLA as the pro tem
Speaker for a purpose extraneous or irrelevant to the one for which it has been
conferred by the Constitution, would be vitiated by legal mala fides.

4. It is humbly submitted before this Hon’ble court that according to the constitution
Convention a senior most member of the assembly to be appointed as pro tem
speaker, senior does not signifies the age but in the context of membership in the
house. The powers conferred upon pro-tem Speaker are wide. The Bombay High
Court in its 1994 judgement in the Surendra Vassant Sirsat vs. Legislative
Assembly Of State Of Goa   9 case held that:-
¶ 21 “A pro-tem is Speaker of the House for all purposes with all powers,
privileges and immunities until the Speaker is elected in conformity with
  Article 178  of the Constitution of India”.
5. It is further submitted before this hon’ble court that the Odisha High Court also
agreed that the powers of pro tem speaker are wide in the Godavari’s Misra versus
Nandakisore Das, Speaker, Orissa Legislative Assembly 10by stating that the :-

9
AIR 1996 Bom 10
10
AIR 1953 Ori 111

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“Powers of the Speaker pro-tem are co-extensive with the powers of elected
Speaker”.
6. It is submitted that despite the settled constitution convention and practice for
appointment of a pro tem Speaker, junior member Mr Chandra kumar who is a senior
member of the NWC party was appointed by the Hon’ble Governor a shocking
disregard to constitution convention and long standing parliamentary practice of
appointing the senior most member of the House.
7. It is further submitted that the appointment was nothing but an attempt to seize,
manipulate and delay the result of the floor test, hence an attempt to interfere and
influence the legislative proceedings .NWC may be exercising influence through the
Governor of the State to ensure that he sails through the floor test by hook or crook,
in absolute disregard to Parliamentary practice and the well established convention of
appointing the senior most member as the pro tem Speaker.

8. It is further submitted that this Hon'ble Court in the judgment of Nabam Rebia and
Etc. vs. Deputy Speaker And Ors11, the court clarified that:-
“ the discretion of Governor is not ‘absolute’ but a ‘constitutional’ one. So,
he may act in his discretion on matters provided in the Constitution. As the
Governor is specifically empowered to appoint a pro-tem Speaker under
Article 180(1), he may exercise his discretion independently of the aid and
advice of the Council of Ministers”

9. It is further submitted that often constitutional conventions are more important

than written constitutional provisions. To clarify the importance of the Constitutional
convention; the President of India is empowered by the constitution to appoint the
Prime Minister but the constitution provides no guidance as to who should be
appointed as Prime Minister. Here in this complex situation the constitutional
convention came into action by guiding the President in discharging his duty
mentioned in the constitution.

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C A NOS. 6203-6204__OF 2016

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MEMORIAL ON BEHALF OF THE PETITIONER

In view of the above it is therefore submitted before this Hon’ble Court that the appointment
of pro tem speaker is in contrariety with the constitution convention by the decision of the
Hon’ble Governor

ISSUE NO.04

(IV) WHETHER THE DECISION OF THE GOVERNOR TO RECOMMEND

DISSOLUTION OF THE ASSEMBLY AND PRESIDENTIAL RULE

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MEMORIAL ON BEHALF OF THE PETITIONER

WITHOUT GIVING AN OPPORTUNITY TO MR. RUDRA PRATAP WAS IN

ACCORDANCE WITH THE CONSTITUTIONAL MANDATE?

1. It is humbly submitted before this Hon’ble Court that the Governor’s decision to
recommend dissolution of Legislative Assembly and subsequent imposition of the
president’s rule in Eastland without giving a fair chance to Mr Rudra Pratap to form a
Government and prove his majority on the floor of the House is repugnant to the
Constitutional Mandate, therefore Ultra Vires.
2. The petitioner being the leader of the single largest party with 85 secured seats
in  2019 elections has not been invited to form a government, on the rhetoric of it the
Hon’ble Governor recommended imposition of president’s rule on the basis of a
wholly irrelevant press conference, wherein some of the members of the legislative
Assembly belonging to different parties including NWC party which had earlier failed
to prove their majority on the floor of the house subsequent to their formation of a
government.
3. It is further submitted that the Hon’ble Governor ought to have in the first place given
Mr Rudra Pratap a chance to form the Government, thereby following the
constitutional conventions and the recommendations of Sarkaria Commission. As
per the convention and the Sarkaria Commission report, in case of a hung assembly
the Governor should invite the leader of the single largest party to form the
Government and prove the majority on the floor of the House.
4. It is important to mention here that this Hon’ble Court has in plethora of decisions
referred to the recommendations of the Sarkaria Commission and has also emphasised
the need of following them.
5. It is further submitted before this Hon’ble Court that upon the failure of Mr Vijay Rao
to prove the majority on the floor of the House and particularly keeping in view the
claim of Mr Rudra Pratap of having the majority, the Governor should have invited
the petitioner to form the Government, but to the great dismay of the petitioner the
Hon’ble Governor chose to gloss over the fact and without giving the petitioner an
opportunity to prove his majority on the floor of the house recommended dissolution
of the state assembly on wholly irrelevant and extraneous grounds.
6. It is further submitted that the power under Article 356 is an emergency power to be
exercised rarely. It is an exceptional power. The power under Article 356 can only be

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MEMORIAL ON BEHALF OF THE PETITIONER

exercised if the President, "on the receipt of report from the Governor of a State or
otherwise" "is satisfied" that "the situation has arisen in which the Government of the
State cannot be carried on "in accordance with the provisions of the Constitution".
The conditions precedent to the issuance of the Proclamation, therefore, are: (a) that
the President should be satisfied either on the basis of a report form the Governor of
the State or otherwise, (b) that in fact a situation has arisen in which the Government
of the State cannot be carried on in accordance with the provisions of the
Constitution. In other words, the President's satisfaction has to be based on objective
material. That material may be available in the report sent to him by the Governor or
otherwise or both from the report and other sources. Further, the objective material so
available must indicate that the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. Thus the existence of the objective
material showing that the Government of the State cannot be carried on in accordance
with the provisions of the Constitution is a condition precedent before the President
issued the Proclamation. Once such material is shown to exist, the satisfaction of the
President based on the material is not open to question, However, if there is no such
objective material before the President, or the material before him cannot reasonably
suggest that the Government of the State cannot be carried on in accordance with the
provisions of the Constitution, the Proclamation issued is open to challenge.
7. It is further submitted that the President's satisfaction has to be based on objective
material. That material may be available in the report sent to him by the Governor or
otherwise or both from the report and other sources. To suffice the above it is
important to make reference to the decision of this Hon’ble Court in S. R. Bommai
vs. UOI.
“The validity of the Proclamation issued by the President under Article
356(1)  is judicially reviewable to the extent of examining whether it was
issued on the basis of any material at all or whether the material was
relevant or whether the Proclamation was issued in the mala fide exercise of
the power.”

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8. It is further submitted that in the present case the Hon’ble Governor has
recommended dissolution of the legislative assembly taking cognisance of the press
conference conducted by Ten members of the legislative assembly, alleging bribery of
10 Crore each to remain absent or resign from the membership of the legislative
assembly before floor test. It is however submitted that such a situation is not the one
which suggests resorting to exercise of power under Article 356. Suffice to refer to
the observation made by the Hon’ble High Court of Uttarakhand in Harish Chandra
Rawat Vs. Union of India 201612, wherein it was Held:-  

“It was 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 choice between going
back to the electorate and accepting a majority obtained improperly, only the former
is the real alternative. The proposition is too broad and wide to merit acceptance.
Acceptance of such a proposition as a relevant consideration to invoke exceptional
power under Article 356 may open a floodgate of dissolutions and has far reaching
alarming and dangerous consequences. It may also be a handle to reject post-
election alignments and realignments on the ground of same being unethical,
plunging the country or the State to another election. This aspect assumes great
significance in situation of fractured verdicts and in the formation of coalition
Governments. If, after polls two or more parties come together, it may be difficult to
deny their claim of majority on the stated ground of such illegality. These are the
aspects better left to be determined by the political parties which, of course, must set
healthy and ethical standards for themselves, but, in any case, the ultimate judgment
has to be left to the electorate and the legislature comprising also of members of
opposition.”

9. To illustrate the aforesaid point, we may give two examples in a situation where none
of the political parties was able to secure majority on its own:

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W P (M/S) No. 795 of 2016

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 After polls, two or more political parties come together to form the majority and
stake a claim on that basis for formation of the Government. There may be
reports in the media about bribes having been offered to the elected members of
one of the political parties for its consenting to become part of the majority. If the
contention of the respondents is to be accepted, then the constitutional
functionary can decline the formation of the Government by such majority or
dissolve the House or recommend its dissolution on the ground that such a group
has to be prevented to stake claim to form the Government and, therefore, a
situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of the Constitution.
 A political party stakes claim to form the Government with the support of
Independent elected candidate so as to make up the deficient number for getting a
majority. According to media reports, under cover of darkness, large sums of
bribes were paid by the particular party to Independent elected candidates to get
their support for formation of the Government. The acceptance of the contention
of the respondents would mean that without any cogent material, the
constitutional functionary can decline the formation of the Government or
recommend its dissolution even before such a claim is made, so as to prevent
staking of claim to form the Government.

 We are afraid that resort to action under Article 356(1) under the aforesaid or

similar eventualities would be clearly impermissible. These are not the matters of
perception or of the inference being drawn and assumptions being made on the
basis whereof it could be argued that there are no judicial manageable standards
and, therefore, the Court must keep its hands off from examining these matters in
its power of judicial review. In fact, these matters, particularly without very
cogent material, are outside the purview of the constitutional functionary for
coming to the conclusion that a situation has arisen in which the Government of
the State cannot be carried on in accordance with the provisions of the
Constitution.
10. The inaction perpetuated by the Hon’ble Governor not to invite Mr Rudra pratap
to form the government is ex facie mala fide and is also based on irrelevant and
extraneous material.

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11. It is further submitted that this is a case where all cannons of propriety were thrown to
wind and the undue haste made by the governor in inviting the president to issue the
proclamation under article 356(1) clearly smacked of mala fides. The proclamation issued
by the president on the basis of the said report of the Governor and in the circumstances
so obtaining, therefore, equally suffered from mala fides. Governor was expected to give
opportunity to Mr Rudra Pratap to form the government being the leader of single largest
party which was denied on the basis of material which was neither tested nor allowed to
be tested and was no more than the ipse dixit of the Governor. The action of the governor
was more objection since as a high constitutional functionary, he was expected to conduct
himself more firmly, cautiously and circumspectly. Instead, it appears that the governor
was in hurry to dissolve the Assembly.

It is therefore submitted that the inaction perpetuated by the hon’ble governor in not
inviting Mr Rudra pratap leader of the single largest party to form the government is in
negation of a fair opportunity to form the government and therefore suffers from mala
fide. Further it is contended that Hon’ble governor’s decision is based on irrelevant and
extraneous material and evidently lacks in application of mind and is therefore
unconstitutional.

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MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER

FOR THE REASONS AFORESAID, IN THE LIGHT OF ISSUE RAISED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY SUBMITTED BEFORE THIS
HON’BLE COURT THAT IT MAY BE PLEASED TO ADJUDGE AND DECLARE THAT

 THE PROCLAMATION ISSUED BY THE PRESIDENT UNDER ARTICLE 356 MAY BE

QUASHED, HELD UNCONSTITUTION AND ULTA VIRUS.
 THE RECOMMENDATION OF THE HON’BLE GOVERNOR TO RECOMMEND
DISSOLUTION OF THE LEGISLATIVE ASSEMBLY MAY BE QUASHED.
 REVIVE AND REACTIVATE THE LEGISLATIVE ASSEMBLY.
 MR RUDRA PRATAP MAY BE INVITED TO FORM THE GOVERNMENT AND TO
PROVE HIS MAJORITTY IN THE ASSEMBLY ON THE FLOOR OF THE HOUSE.

And pass any order, direction or relief that it may deems fit to meet the ends of justice, equity

And good conscience. And for this the petitioner as in duty bound, shall humbly pray.

Respectfully submitted on behalf of the

Petitioner

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