54A

“14TH NALSAR JUSTICE B.R.
SAWHNY MEMORIAL MOOT COURT COMPETITION 2021” 54A
“14TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT

COMPETITION 2021”
BEFORE THE HON’BLE HIGH COURT OF GULMOHAR
IN THE MATTER OF –
MR. GIDUGA..................................................................................................... Applicant
Versus
STATE OF GULMOHAR........................................................................................... Respondent
CLUBBED WITH
MR. GIDUGA.................................................................................................. Applicant
Versus
UNION OF SAPOTA.................................................................................................. Respondent
Written Submissions on behalf of the Applicant
Counsels for Applicant
1
MEMORIAL ON BEHALF OF APPLICANT
“14TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION 2021”
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS------------------------------------------------------------------------------5
INDEX OF AUTHORITIES -------------------------------------------------------------------------------6-8
A. STATUTES -----------------------------------------------------------------------------------------6
B. JUDICIAL DECISIONS--------------------------------------------------------------------------6-7
C. LIST OF BOOKS -----------------------------------------------------------------------------------8
D. OTHER AUTHORITIES ---------------------------------------------------------------------------8
STATEMENT OF FACTS -------------------------------------------------------------------------------9-10
STATEMENT OF JURISDICTION ------------------------------------------------------------------------11
QUESTIONS PRESENTED--------------------------------------------------------------------------------12
SUMMARY OF PLEADINGS------------------------------------------------------------------------------13
PLEADINGS-------------------------------------------------------------------------------------------14-44
ISSUE-I
1. WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI) ACT, 2021
IS CONSTITUTIONALLY VALID? ---------------------------------------------------------------14-29
1.1. IMPERMISSIBLE MANDATE ON PRIVATE SECTOR TO EMPLOY NATIVE GULMOHARIS. ------

------------------------------------------------------------------------------------------------14-18
1.1.1. Violates Article 19(1)(g) ---------------------------------------------------------14-16
1.1.1.1. The first test i.e., the common test of Article 19(1). -----------------15-16
1.1.1.2. The second test i.e., restriction sought to be imposed must fall within
Article 19(6). --------------------------------------------------------------------------16
1.1.2. Violates Article 19(1)(d) and Article 19(1)(e) ---------------------------------16-17
1.1.3. Violates Doctrine of Colourable Legislation---------------------------------------17
1.1.4. Violates Doctrine of ‘level playing field’----------------------------------------17-18
1.2. RESERVATION ON BASIS OF NATIVE GULMOHARI IN GOVERNMENT JOBS IS FELONIOUS. --
------------------------------------------------------------------------------------------------18-23
1.2.1. Violation of Article 14------------------------------------------------------------18-20
1.2.1.1 There is an unreasonable basis of classification. -------------------18-20
1.2.1.1.a. Absence of Intelligible Differentia- ----------------------------19
1.2.1.1.b. Lack Rationale Nexus----------------------------------------19-20
1.2.1.2. The action is arbitrary in nature--------------------------------------------20
1.2.2. Violation of Article 15 and Article 16-------------------------------------------20-23
1.2.2.1. The Act discriminates on the basis of place of birth and domicile. ---20
2
1.2.2.2. The horizontal reservation is unreasonable. -------------------------21-22

1.2.2.3. The reservation is excessive. -------------------------------------------22-23
1.2.3. Violates Right to Livelihood under Article 21--------------------------------------23
1.3.THE ACT IS VAGUE AND UNCERTAIN. ----------------------------------------------------23-24
1.4. THE ACT IS AGAINST DOCTRINE OF EXCESSIVE DELEGATION OF DISCRETION. ----------24
1.5. THE ACT IS AGAINST THE FEDERAL BALANCE OF THE NATION. ----------------------24-25
1.6. THE BILL WAS ERRONEOUSLY CERTIFIED AS A MONEY BILL---------------------------25-29
1.6.1. Speaker’s certification of bill is subject to judicial review--------------------25-28
1.6.1.1. Judicial review is a part of basic structure----------------------------25-26
1.6.1.2. Judicial review is possible in case of ‘illegality’ not ‘irregularity’. -----
---------------------------------------------------------------------------------------26-27
1.6.1.2.a. Error in certification is ‘substantive illegality------------26-27
1.6.1.2.b. No immunity under Article 212 --------------------------------27
1.6.1.3. Speaker’s certification is not ‘final’ under Article 199(3). --------27-28
1.6.2. The bill does not fulfill the requirements under Article 199 of the Constitution
of Sapota------------------------------------------------------------------------------------28-29
1.6.2.1. The primary objective of the Act does not fall under Article 199(1)(a)
to (g). ---------------------------------------------------------------------------------------28-29
1.6.2.2. Imposition of fine or penalties does not deem a bill to be a money bill.
--------------------------------------------------------------------------------------------------29
1.6.2.3. The bill does not contain ‘only’ provisions falling under Article
199(1)(a) to (g). -------------------------------------------------------------------------------29
ISSUE-II
2. WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC
STRUCTURE OF THE SAPOTA CONSTITUTION? --------------------------------------------29-38
2.1. THE AMENDMENT DESTRUCTS THE SANCTITY OF PARLIAMENTARY DEMOCRACY. –30-33

2.1.1. Deliberation and Discussion is imperative in Parliament. -----------------------31
2.1.2. Direction by party discourages debate in legislature-------------------------31-32
2.1.3. Ineffective debate frustrates representation of people in Parliament-----------32
2.1.3.1. Privileges to ensure effective function of Parliament ------------------32
2.1.4. Disturbs balance between rights of members and their party--------------------33
2.1.5. Ensured in Directives Principles of State Policy-----------------------------------33
2.2. THE AMENDMENT VIOLATES FREEDOM OF SPEECH AND EXPRESSION. ---------------33-35
3
2.2.1. Freedom of expression ensures individual autonomy-----------------------------34

2.2.2. Infringes Right to Dissent of a Member of Legislature------------------------34-35
2.2.3. Unreasonable restriction on Freedom of Speech----------------------------------35
2.2.3.1. No exigencies of situation required such amendment in Constitution of
Sapota. -------------------------------------------------------------------------------------------35
2.3. THE AMENDMENT VIOLATES RULES OF LAW WITH ARBITRARY APPLICATION. ------35-37
2.3.1. The Speaker has not been made a Tribunal----------------------------------------36
2.3.2. Violates Principles of Natural Justice-------------------------------------------36-37
2.3.3. Lacks procedure and rules--------------------------------------------------------37-38
2.4. THE AMENDMENT DISREGARDS POLITICAL JUSTICE AND PARLIAMENTARY DEMOCRACY
2.4.1. Governor is not an independent authority--------------------------------------37-38
ISSUE-III
3. WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF GULMOHAR TO
INVITE A POST-POLL ALLIANCE TO FORM THE GOVERNMENT? -------------------------38-44
3.1.TEXT OF CONSTITUTIONAL AMENDMENT DOES NOT EXPRESSLY OR IMPLIEDLY PROHIBITS

FORMATION OF POST POLL ALLIANCE -----------------------------------------------------38-40
3.1.1 Liberal Interpretation of constitutional text---------------------------------------38-39

3.1.2 Narrow Interpretation of constitutional text by the Governor-----------------39-40
3.2. JUDICIAL REVIEW CANNOT BE ESCAPED. -------------------------------------------------40-42
3.2.1 Governor’s action are under the purview of Article 226-----------------------40-41
3.2.1.1 Decision of Government is not reasonable---------------------------------41
3.2.1.2 Governor is involved in political hue----------------------------------------41
3.2.2 Judicial review over Political question--------------------------------------------41-42
3.3. ROLE OF A GOVERNOR. ---------------------------------------------------------------------42-43
3.3.1. Governor’s role in hung Assembly-----------------------------------------------42-43
3.3.1.1 Order of calling parties to be called to prove majority was not followed
by the Governor ------------------------------------------------------------------------43
3.4. ARTICLE 361 IMMUNITY CANNOT BE CLAIMED BY THE GOVERNOR-----------------------44
4. PRAYER-----------------------------------------------------------------------------------------------45
4
TABLE OF ABBREVIATION
S. NO. ABBREVIATION MEANING

1. & And
2. ¶ Paragraph
3. AIR All India Report
4. Anr. Another
5. Art. Article
6. C.J. Chief Justice
7. C.M. Chief Minister
8. C.O.I. Constitution of India
9. cl. Clause
10. Const. Constitution
11. DPSP Directive Principles of State Policy
12. ed. Edition
13. Eds. Editors
14. Etc. Etcetera
15. FR Fundamental Right
16. Govt. Government
17. Hon’ble Honourable
18. Id. Ibid
19. M.P. Moot Proposition
20. N.C.T. National Capital Territory
21. Ors. Others
22. P.M. Prime Minister
23. § Section
24. SC Supreme Court
25. SCC Supreme Court Cases
26. S.C.R. Supreme Court Record
27. Sch. Schedule
28. U.O.I. Union of India
29. v. Versus
30. W.P. Writ Petition
5
INDEX OF AUTHORITIES
STATUTES
1. The Constitution of India, 1950.

JUDICIAL DECISIONS
1. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (India)………………..............14

2. Attorney General for Ontario v. Reciprocal Insurers', (I924) AC 328 at p. 337 (Z10)……17
3. B.R. Patil S/O Ramachandrappa v. Rajeev Chandrashekar, ILR 2007 Kar 317…….….... 33
4. Bachan Singh v. State of Punjab, AIR 1982 SC 1325 (India)………………………...… .37
5. Charu Khurana and Ors. v. Union of India and Ors., (2015) 1 SCC 192 (India)........ …….23
6. D.T.C Mazdoor Congress, AIR 1991 SC 101 (India)……………………………………..22
7. Dharma Dutt v. Union of India, (2004) 1 SCC 712 (India)……………. …………….......15
8. Dr. Pradeep Jain v. Union of India and Ors., (1984) LLJ 481 SC (India)…… ………..21,25
9. E. P. Royappa v. State of Tamil Nadu, AIR 1974 S.C. 555 (India)……………….. ……...35
10. E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (India)……………………..………..19
11. Express Newspaper v. Union of India, AIR 1958 SC 578 (India)…………………. ….16,17
12. Grayned v. Rockford, 408 U.S. 104………………………………………………….. ….23
13. Haji Usman Haji Mohammad v. State, AIR 1958 MP 33 (India)………………….…. ….14
14. His Holiness Kesavananda Bharati v. State of Kerala and Anr., AIR 1973 SC 1461 (1535,
1603, 1628, 1860) (India)………………………………………….…………………. ….30
15. Indian Metal and Metallurgical v. Industrial Tribunal, Madras, AIR 1953 Mad 98
(India)………………………………………………………………………………….... 16
16. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (India)………………………. …..30
17. Indra Sawhney v. Union of India, (2000) 1 SCC 168 (India)………………………….… 31
18. In Re Special Court Bill, AIR 1979 SC 478 (India)……………………………………... 19
19. In Re Special Reference No. 1 of 1964, AIR 1965 SC 1964 (India)…………….........…. 32
20. Jay Shankar Pathak v. Election Commission of India, AIR 2012 Jhar 58 (India)……….. 33
21. Jayashree K.S. v. State of Kerala, AIR 1976 SC 2381 (India)…………………………... 22
22. K.S. Puttaswamy v Union of India, (2019) 1 SCC 1 (India)………………………….…. 25
23. K.S.E. Board v. Indian Aluminium Co., AIR 1976 SC 1031 (India)………………….… 17
24. Kalpana Mehta and Ors. v. Union of India and Ors., (2018) 7 SCC 1 (India)………... 31,32
25. Kailash Chand Sharma v. State of Rajasthan and Ors. (2002) 6 SCC 562 (India)…….… 21
26. Kavalappara Kochuni v. State of Madras & Kerala, AIR 1960 SC 1080 (India)…………15
6
27. Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (India)………….………………….. 26,30

28. Lakman Singh v. Rajpramukh, AIR 1953 MB 54…………………….…………………. 44
29. Maneka Gandhi v. Union of India, (1978) 2 SCR 621 (India)…………………………17,34
30. Maneklal Chotalal v. Makwana M.G., AIR 1967 SC 1373 (India)…………………........ 24
31. Marbury v. Madison (U.S.A.)……………………………………………….......…… 39,40
32. Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625 ¶16 (India)….………….…... 30,37
33. Mohd.Faruk v. State of M.P., AIR 1958 SC 731 (India)………………………………… 16
34. Motor General Traders v. State of A.P., (1984) 1 SCC 222 (India)…………..……..… 15,18
35. Municipal Corp. v. Jan Mohd Usmanbhai, 1986 (SCR) (2) 700 (India)……………….... 16
36. Nabam Rebia and Bamang Felix v. Deputy Speaker, (2016) 8 SCC 1 (India)………...… 40
37. P.D. Dinakaran v. Judges Inquiry Committee, (2011) 8 SCC 380 ¶ 31 (India)…………...36
38. Pathumma v. State of Kerala, AIR 1978 SC 771 (India)……………………………... 15,39
39. Pandit M.S.M Sharma v. Dr. Shri Krishna, 1959 Supp. (1) SCR 806 (India)…………… 27
40. Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184 (India)……….…… 26,32
41. Ram Gopal Dixit v. Public Information Officer, (2018) SCC CIC (India)…………..…... 26
42. Ramdas Athawale v. Union of India and Ors., (2010) 4 SCC 1 (India)……………......... 26
43. Rameshwar Prasad & Ors v. Union of India & Anr, 005 (7) SCC 157 (India)……….. 42,44
44. Reliance Energy Ltd.v. Maharashtra Road Corpn. Ltd, (2007) 8 SCC 1…..……….…… 18
45. Roger Mathew v. South Indian Bank Limited, (2020) 6 SCC 1 (India)………..…..… 26,28
46. S.R. Bommai & Ors. v. Union of India & Ors, AIR 1990 Karnataka 5 (India)……….. 37,41
47. Seshrao Nagorao Umap v. State of Maharashtra, 1985 (1) Bom. CR 30 (India)……...… 36
48. Shayara Bano v. Union of India, (2017) 9 SCC 1 (India)…………………………….….. 20
49. Sheo Nandan Paswan v. State of Bihar, 1987 SCR (1) 702 (India)…………………........ 24
50. Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India)……………………………… .23
51. Shri Kihoto Hollohon v. Zachillu AIR 1993 SC 412 (India)…………….…….. 31,33,35,36
52. S.R. Chaudhari v. State of Punjab, AIR 2001 SC 2707 (India)…………….……………. 39
53. State of Madhya Pradesh v. Baldeo Prasad, 1961 SCR (1) 970 (India)………………….. 24
54. State of Madras v. Rao V.G., 1952 SCR 597 (India)…………………………………..… 15
55. Surendra Mohan Arora v. H.D.F.C. Bank Ltd., (2014) 15 SCC 294 (India)……..……… 19
56. Union of India v. Sankal Chand Himmatlal, AIR 1977 SC 2328 (India)……………….. 39
57. V.N. Sunanda Reddy v. State of A.P. 1995 Supp. (2) SCC 235 (India)…………....…… 24
58. Waman Rao v. Union of India (1981) 2 SCC 362 (India)………………………….……. 30
59. Yasin Mohammad v. Town Area Committee, (1952) SCR 572 (578) (India)……….. 15,16
7
LIST OF BOOKS
1. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2018).
2. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (8th ed. 2020).
3. V.N. SHUKLA, CONSTITUTION OF INDIA (12th ed. 2018).
4. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. 2006).
OTHER AUTHORITIES
1. 2 G. V. Mavalankar, “The Office of Speaker”, JOURNAL OF PARLIAMENTARY INFORMATION,

April 1956, No. 1.
2. AHARON BARAK, PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATION
(Cambridge University Press 2012).
3. Alan Finlayson, ‘What is the Point of Parliamentary Debate?’ Deliberation, Oratory,
Opposition and Spectacle in the British House of Commons.
4. André Béteille, Constitutional Morality, ECONOMIC AND POLITICAL WEEKLY, Oct. 2008.
5. Anup Surendranath, Judicial Review of Speaker’s Determination Concerning Money Bills.
6. CONSTITUENT ASSEMBLY DEBATES (19 November, 1948).
7. Insaf Ahamad, Understanding the Doctrine of Colourable Legislation, (Sep. 2020)
8. JAG Griffith and Michael Ryle, Parliament Functions, Practice & Procedures (1989 ed.
p. 70).
9. JOHN STUART MILL, ON LIBERTY 139 (Laura Ross ed. Sterling Publishing Co., 2012).
10. Judicial Review, The Government Response to Independent Review of Administrative Law.
11. Kartik Khanna and Dhvani Shah, Anti-Defection Law: A Death Knell for Parliamentary
Dissent, 5 NUJS Law Review 103 (2012).
12. Ministry of Home Affairs, Report of Committee on Defections under the Chairmanship of
Shri Y. B. Chavan (1969).
13. Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, 10
NUJS LAW REVIEW (2017).
14. R.C. Saksena, Adjudication by Tribunals in India: Landmark in Field of Natural Justice,
37 JILI (1995) 222.
15. Report of the Sarkaria Commission, Role of Governor
16. Roshni Sinha and Prachi Kaur, Anti-Defection Law: Intent and Impact, PRS Legislative
Research (2019).
8
STATEMENT OF FACTS
PROLOGUE: The Social Democratic Republic of Sapota (hereinafter Sapota) is a Union of

States which has adopted large parts of Indian Constitution for its own purposes. Sapota
adopted a Westminster Parliamentary form of Government and its legal system is largely based
in common law.
AMENDMENT OF THE CONSTITUTION: The Tenth Schedule of the Constitution was amended
to insert Anti-Defection Law. A member of legislative House shall now be disqualified for
voting contrary to party whip for certain motions. Also, it introduced provision in respect of
the role of Governors regarding invitation to form the Government. The Governor will swear
in the leader of the party or alliance which has won more than fifty percent of the votes or, in
the absence of this condition, the leader of the single party or pre-poll alliance with maximum
seats shall be swear in.
CONTROVERSIAL BILL IN LEGISLATURE OF GULMOHAR: The State of Gulmohar, one of the

richest states of Sapota, where Gulmohari language is considered as the official language. But
percentage of native Gulmohari speakers had fallen from 95% in 1971 to 65% as of 2021. In
May 2021, a demonstration took place in Gulmohar. The gathering demanded to save the
Gulmohari language and Gulmohari speaking people from “being swamped away by
outsiders”. To this end, they mainly demanded 65% “reservation” in government and private
sector jobs for Gulmohari speaking people. Ms. Azhilu, CM of Gulmohar and leader of
Gulmohar Rastra Party (GRP), accepted the demand and introduced a bill to this effect. Mr.
Giduga and two other Cabinet Ministers protested against the Gulmohar Bill, 2021 and
tendered their resignation to the Governor.
The bill was certified as a money bill by the speaker because of which Mr. Giduga and other
30 members who voted against the bill were disqualified as MLAs. The bill was passed and
signed by the Governor. The enforced bill was constitutionally challenged by Mr. Giduga in
High Court of Gulmohar on the ground specifically in the context of requirement for private
enterprises to prefer native Gulmohari in jobs while leaving the grounds of challenge open for
applicant.
In order to capitalize on the political goodwill of passing the bill, Ms. Azhilu resigned and
called for fresh elections.
9
A SURPRISE RESULT: Mr. Giduga and other disqualified members formed Sapota Bachao
Party and stood for the election. Surprising, GRP did not win majority, though it won
maximum seats i.e., 132. SBP won 120 seats and PPS, with Mr.Ka’age as leader, won 38
seats. Mr. Giduga and Mr. Ka’age announced that they have formed a post-poll alliance and
would approach the Governor to form the Government. However, the Governor invited Ms.
Azhilu to form the government as her party won most seats and post-poll alliance was not
envisaged under the Constitution.
Mr. Giduga challenged the 2020 amendment to the Constitution in High Court of Gulmohar
asking that the Governor be directed to swear him instead of Ms. Azhilu. The Court referred
the matter to a Bench of Five judges and also clubbed the petition of constitutional validity of
the Gulmohar Act, 2021 with it.
10
STATEMENT OF JURISDICTION
The Applicant has approached the Hon’ble High Court of Gulmohar under Article 226 of the
Constitution, challenging the Gulmohar Act, 2021. The Hon’ble C.J. of the High Court has
clubbed Mr. Giduga’s Writ Petition, against swearing in of Ms. Azhilu as Chief Minister with
the petition challenging the Act and listed both the matters before a Constitutional Bench.
For the kind perusal of Hon’ble Court relevant part of Art. 226 states that:
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories.
…..
This Memorial sets forth the facts, laws and the corresponding arguments on which the
claims are based in the instant case. The Applicant affirms that they shall accept any judgment
of this Hon’ble Court as final and binding upon themselves and shall execute it in its entirety
and in good faith.
11
QUESTIONS PRESENTED
-I-
WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI) ACT, 2021 IS
CONSTITUTIONALLY VALID?
-II-
WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC STRUCTURE
OF THE SAPOTA CONSTITUTION?
-III-
WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF GULMOHAR TO
INVITE A POST-POLL ALLIANCE TO FORM THE GOVERNMENT?
12
SUMMARY OF PLEADINGS
1. WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI) ACT, 2021

IS CONSTITUTIONALLY VALID?
It is humbly submitted before the Hon’ble High Court that the Gulmohar (Promotion and
Protection of Gulmohari) Act, 2021 is constitutionally invalid because mandating private
enterprises to employ native Gulmoharis will violate freedom to trade, business and practice
profession. The Act infringes the right to reside in Gulmohar. Further, reservation for native
Gulmohari in government jobs is not intelligibly classified. It takes away the right of equal
opportunity from the non-native Gulmoharis. By intervening in employment process the Act
infringes Right to livelihood. The Act is vague and uncertain. Moreover, there is an excess
delegation of discretion in the hands of authorities. Significantly, the Act is against the unity
and integrity of Sapota. Arguendo, the bill was wrongly certified as a money bill by the speaker.
2. WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC

STRUCTURE OF THE SAPOTA CONSTITUTION?
It is humbly submitted before the Hon’ble High Court that the Constitution (Thirty Sixth)
Amendment Act, 2020 (herein the Amendment) violates the basic structure of the constitution
as firstly, it destructs the sanctity of a parliamentary democracy. Secondly, the Amendment
violates Freedom of Speech and Expression that ensures individual autonomy by infringement
of the Right to Dissent of a Member of Legislature. Thirdly, the Amendment violates Rule of
Law and Principles of Natural Justice. Fourthly, the Amendment disregards political justice
and parliamentary democracy as it confers unfettered discretion upon Governor in matter of
formation of Government.
3. WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF GULMOHAR TO
INVITE A POST-POLL ALLIANCE TO FORM THE GOVERNMENT?
It is humbly submitted before the Hon’ble Court of Gulmohar that respected High Court can
direct the governor in the present case to form a post poll alliance due to following reasons,
firstly text of Constitutional amendment does not expressly or impliedly prohibit formation of
post poll alliance. Secondly, judicial review of governor’s actions and decision-making process
cannot be escaped as decision of Governor is not reasonable as well as he is involved in political
complexions. Thirdly, order of calling parties to be called to prove majority was not followed
by the Governor and fourthly Article 361 immunity cannot be claimed by the governor.
13
PLEADINGS
1. WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF

GULMOHARI) ACT, 2021 IS CONSTITUTIONALLY VALID?
It is humbly submitted before the Hon’ble High Court that the Gulmohar (Promotion and
Protection of Gulmohari) Act, 2021 (hereinafter ‘the Act’) is not constitutionally valid because
[1.1] it is impermissible to mandate private enterprises to employ native Gulmoharis [1.2]
reservation on basis of “native Gulmohari” in government jobs is felonious [1.3] it is vague
and uncertain [1.4] it is against the doctrine of excessive delegation of discretion [1.5] it is
against the federal balance of the nation [1.6] the bill (now an Act) was erroneously certified
as a money bill.
[1.1] IMPERMISSIBLE MANDATE ON PRIVATE SECTOR TO EMPLOY NATIVE GULMOHARIS
Citizens enjoy certain fundamental rights1 (hereinafter ‘FRs’) enumerated under Article 19(1).
They are harmoniously construed2 to weave the fabric of a free and equal democratic society. 3
These rights are known as common-law rights4 promoted with minimum necessary restriction. 5
In this light, it advocated that the Act cannot mandate private enterprises to prefer native
Gulmoharis because it will violate [1.1.1] Article 19(1)(g) [1.1.2] Article 19(1)(d) and 19(1)(e)
[1.1.3] Doctrine of Colourable Legislation and [1.1.4] Doctrines of ‘level playing field’.
[1.1.1] Violation of Article 19(1)(g)
Article 19(1)(g) is among the protected FRs conferred by Article 19. 6 It confers vast right on
citizens to do any profession, occupation, trade or business of their choice. 7 Every man has a
liberty to follow any trade or occupation at his pleasure without hindrance by any other person.8
Article 19(l)(g) belongs to the cherished golden triangle. 9 It can be invoked when the complaint
is with regard to the right of an individual to carry on business. 10
1
Barium Chemicals v. Company Law Board, AIR 1967 SC 295 (India).
2
AHARON BARAK, PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATION (Cambridge University
Press 2012).
3
MH Devendrappa v. Karnataka State Small Industries Development Corporation, (1998) 3 SCC 732 (India).
4
Jamuna Prasad Mukharia v. Lachchi Ram, 1955 (1) SCR 608 (India).
5
3 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 3610 (9th ed. 2014).
6
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 883 (8th ed. 2018).
7
Id.
8
1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2695 (4th ed. 2008).
9
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (India).
10
Haji Usman Haji Mohammad v. State, AIR 1958 MP 33 (India).
14
Notably, Article 19(1)(g) is not absolute and subject to reasonable restriction. 11 But the
legislative enactment imposing such restriction has to pass the two test of reasonableness. 12 In
this case, the Act fails [1.1.1.1] the first test i.e., the common test of Article 19(1)13 and [1.1.1.2]
the second test i.e., restriction sought to be imposed must fall within Article 19(6). 14
[1.1.1.1] The Act fails the common test of Article 19(1)
Reasonableness and rationality provide colour to the meaning of FRs. 15 In examining the
reasonableness, firstly, one has to keep in mind that it must not be of an excessive nature so as
to go beyond the requirement.16 It has to be seen whether it is so drastic as to be destructive of
the right itself. 17 The restriction imposed must not be in excess of mischief sought to be
prevented.18 A law may relate to total prohibition though it may not be couched in that shape. 19
Secondly, there must be a nexus between the restriction and the object which is sought to be
attained20 and also it should be within the spirit of the Constitution 21 Thirdly, it has to be
checked that there are no alternative measures that may similarly achieve that same purpose22
with a lesser degree of limitation.23 Lastly, any restrictions imposed which has the effect of
promoting DPSPs can be presumed to be a reasonable decision in public interest. 24 Importantly,
the standard of the reasonableness varies from case to case25 and be related to adjustments
necessary to solve the problems which the community faces. 26
In casu, the Act is excessive in nature as it imposes penalty on private enterprises,
making the employment preference involuntary. Also, the requirement of 65 percent is drastic
enough as to be destructive of the right itself. Secondly, the act lacks the nexus as the private
companies might stop business in Gulmohar due to procedural requirements27 and penalty.28
Thirdly, the government has alternative measures to promote Gulmohari language i.e., enacting
11
Pathumma v. State of Kerala, (1978) 2 SCC 1 (India).
12
State of Madras v. Rao V.G., 1952 SCR 597 (India).
13
Supra note 6.
14
Dharma Dutt v. Union of India, (2004) 1 SCC 712 (India).
15
Javed v. State of Haryana, (2003) 8 SCC 369 (India).
16
Dwarka Prasad Laxmi Narain v. State of U.P., 1954 SCR 803.
17
S. Ananthakrishnan v. State of Madras, AIR 1952 Mad 395 (India).
18
Supra note 11.
19
Yasin Mohammad v. Town Area Committee, 1952 SCR 572 (India).
20
O.K Ghosh v. E.X. Joseph, AIR 1963 SC 812 (India).
21
Habibullah v. Gulam Ahamed Baba, AIR 1983 J&K 62 (India).
22
M.R.F Ltd. v. Inspector Kerala Govt., (1998) 8 SCC 227 (India).
23
Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 (India).
24
Workmen v. Meenakshi Mills Ltd., (1992) 3 SCC 336.
25
Kavalappara Kottarathil Kochuni v. State of Madras & Kerala, AIR 1960 SC 1080 (India).
26
Motor General Traders v. State of A.P., AIR 1984 SC 121 (India).
27
Moot Proposition, Annexure B, §45.
28
Moot Proposition, Annexure B §§46, 47.
15
law under Article 345 and use Gulmohari for all official purpose of the state. Also, since
Gulmohari is a classical language,29 the state can provide financial assistance to set-up a centre
of excellence for its study.
[1.1.1.2] The Act fails to fall within Article 19(6)
Clause (6) is intended to strike a balance between individual freedom and social control. 30
Under this clause, limits can be imposed in the interest of the public welfare. 31 In other words,
if any restriction is alleged to be void 32 or unconstitutional, 33 it can be saved if it is enacted in
interest of general public. Further, in Municipal Corp. v. Jan Mohd Usmanbhai34 the Court
held that the expression ‘in the interests of general public’ is of wide import comprehending
public order, public health, public security35, morals, and economic welfare of the community.
In addition, a law which confers uncontrolled power upon the executive to regulate trade or
business cannot be held reasonable.36 Moreover, if the restriction creates a situation wherein it
is impossible to carry on the business except in onerous conditions, it shall be held
unconstitutional. 37 This right can also be violated by a law which prevents a certain category
of workers from accepting employment in a particular factory. 38 Importantly, the words
‘general public’ does not refer to any group or class of people as distinguished from the people
generally. 39 It is held in Mohd. Faruk v. State of M.P.40 that a prohibition cannot be reasonable
if imposed keeping in view the sentiments of a section of community.
In casu, the Act is enacted to safeguard a language41 and thus it does not fall in the
ambit of ‘interest of general public’ i.e., public order, health, security etc. On the contrary, the
65 percent threshold 42 creates onerous condition to carry on business and limit the autonomy
of the employer in hiring the candidates they find most suitable. Crucially, the Act is legislated
keeping in view the sentiments native Gulmohari for their language. 43
[1.1.2] Violation of Article 19(1)(d) and Article 19(1)(e)
29
Moot Proposition ¶7.
30
J.K. Industries Ltd. v. Chief Inspector of Factories & Boilers, (1996) 6 SCC 665 (India).
31
T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 (India).
32
Yasin Mohammad v. Town Area Committee, (1952) SCR 572 (578) (India).
33
O.K Ghosh v. E.X. Joseph, AIR 1963 SC 812 (India).
34
Municipal Corp. v. Jan Mohd Usmanbhai, 1986 (SCR) (2) 700 (India).
35
Indian Metal and Metallurgical v. Industrial Tribunal, Madras, AIR 1953 Mad 98 (India).
36
Dwaraka Pd. v. State of U.P, AIR 1954 SC 224 (India).
37
Express Newspaper v. Union of India, AIR 1958 SC 578 (India).
38
Fertiliser Corp. Kamagar Union v. Union of India, AIR 1981 SC 344 (India).
39
State of U.P. v. Kartar Singh, AIR 1964 SC 1135.
40
Mohd.Faruk v. State of M.P., AIR 1958 SC 731 (India).
41
42
Moot Proposition, Annexure B §47.
43
Moot Proposition, Annexure B §2(g).
16
Article 19(1)(d) guarantees the right to move freely throughout the territory of country. 44 On
the other hand, Art. 19(1)(e) guarantees the right to reside and settle in any part of nation. 45 SC
in Maneka Gandhi v Union of India46 held that FRs do not exist in compartmentalized
isolation, rather, they form an inextricable link and are complimentary to each other. However,
this freedom can be curtailed by law within the limits prescribed.47
In casu, the 65% threshold 48 will make it difficult for non-native Gulmohari to reside
in Gulmohar as they will be unable to earn livelihood by their choice in the State. Also, the
restrictions under section49 46 and section 47 are neither in the interest of general public.
[1.1.3] Violates Doctrine of Colourable Legislation
Originated from the latin maxim ‘Quando aliquid prohibetur ex directo, prohibetur et per
obliquum’, the doctrine means whatever cannot be done directly, it cannot be done indirectly. 50
To invoke this doctrine, the legislature must be shown to have transgressed the limits of its
constitutional power.51 It is relevant only in connection with the question of legislative
competency52 to enact a particular law.53 It can be deduced that the legislative power cannot
indirectly take away the FRs which it cannot take away directly. 54 Significantly, it needs to be
read with the latin maxim ‘Expressio unius exclusio alterius’ i.e. expression of one is
exclusion of other.55
In casu, legislature can enact law only to provide reservation in public employment.
Inclusion of reservation in public employment under Article 16 is exclusion of reservation from
private employment. Hereby, since the State is directly incompetent in providing reservation
in private employment, the Act indirectly imposes 65 percent reservation 56 on private
enterprises by the way of penalty. 57 Hence, the State has transgressed its limits.
[1.1.4] Violates Doctrine of ‘level playing field’
44
Supra note 8.
45
Supra note 6.
46
1978 SCR (2) 621
47
D. N. Banerjee, Some Aspects Of Our Fundamental Rights: Article 19, THE INDIAN JOURNAL OF POLITICAL
SCIENCE, Feb. 2015, at pp. 26–36.
48
49
Moot Proposition, Annexure B.
50
Insaf Ahamad, Understanding The Doctrine Of Colourable Legislation, (Sep. 2020) https://www.ijlmh.com
(last visited Sep. 10, 2021).
51
Attorney General for Ontario v. Reciprocal Insurers', (I924) A. C. 328 at p. 337 (Z10).
52
K.S.E. Board v. Indian Aluminium Co., AIR 1976 SC 1031 (India).
53
Gajapati Narayana Deo and Other v. State of Orissa, AIR 1953 Ori 185 (India).
54
Express newspaper v. Union of India, AIR 1958 SC 578 (India).
55
Webster's Online Dictionary, https://www.webster-dictionary.org/definition/Expressio unius exclusio alterius
(last visited August, 2021).
56
Moot Proposition ¶14(c).
57
17
Judiciary has admitted that ‘level playing field’ is an important factor58 in the application of
the FR to carry on business. 59 It is a situation in which different companies can compete fairly
because no one has special advantages or disadvantages. 60 In other words, all firms in a market
are treated the same in equal circumstances with regard to legislation, taxes, subsidies etc. 61
This doctrine provides space within which equally placed competitors are allowed to bid so as
to sub-serve the larger public interest.62 ‘Level playing field’ is possible only when no entity is
subject to undue competitive disadvantages. 63 Moreover, any vagueness in law can result in
unequal treatment and violate this doctrine. 64 However, it is to be understood that State is
obliged to provide a level playing field to the oppressed classes.65
In casu, the private enterprises are kept at disadvantage as they are unaided by the State
and still forced to fulfill the 65 percent threshold. 66 Also, native Gulmoharis are not an
oppressed class whom the State must provide a ‘level playing field’.
[1.2] RESERVATION ON BASIS OF NATIVE GULMOHARI IN GOVERNMENT JOBS IS FELONIOUS
It is submitted that reservation on the basis of native Gulmohari in government jobs is felonious
because it violates [1.2.1] Article 14 [1.2.2] Article 15 and Article 16 and [1.2.3] right to
livelihood under Article 21.
[1.2.1] Violation of Article 14
The right to equality is one of the basic features of the Constitution. 67 It is based on rule of law
and equality before law. 68 The legislature cannot transgress the principle of equality. 69 Equality
requires that all persons shall be treated alike under like circumstances. 70 Thus, reservation for
native Gulmoharis in public employment is violation of Art. 14 as [1.2.1.1] there is an
unreasonable basis of classification and [1.2.1.2] the action is arbitrary in nature.
[1.2.1.1] There is an Unreasonable Basis of Classification
58
Ion Exchange Waterleau Ltd v. The Commissioner, Madurai Municipal Corporations, (2008) 3 CTC 645
(India).
59
Supra note 6.
60
Marja Appelman, Equal Rules or Equal Opportunities? Demystifying Level Playing Field, (Oct. 2003)
https://www.cpb.nl/sites/default/files/publicaties/ (last visited Sep. 10, 2021).
61
Id.
62
Supra note 5.
63
Supra note 60.
64
Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1 (India).
65
Supra note 5.
66
Moot Proposition, Annexure B §14(c).
67
Indra Sawhney v. Union of India, (2000) 1 SCC 168 (India).
68
M. Nagraj v. Union of India, (2006) 8 SCC 212 (India).
69
M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 666 (India).
70
Motor General Traders v. State of A.P., (1984) 1 SCC. 222 (India).
18
The varying needs of the society require a reasonable classification which is necessary for the
society.71 While the State is permitted to exercise differentiation amongst certain individuals
who are differently situated, it must possess a rational nexus when treating equals unequally. 72
This is known as the Doctrine of Reasonable Classification.73 For a classification to be
reasonable, a twin test of [1.2.1.1.a] Intelligible Differentia and [1.2.1.1.b] the Rationale Nexus
with the object shall be fulfilled. 74
[1.2.1.1.a] Absence of Intelligible Differentia
This maxim means the difference that is capable of being understood.75 Intelligible differentia
i.e., the basis of classification must be rational76 and based on some qualities or
characteristics,77 which are to be found in all the persons grouped together and not in others
who are left out.78 In Re: Special Courts Bill,79 SC held that all persons who are similarly
circumstanced should be treated alike both in privileges conferred and liability imposed.
In casu, government has classified between native 80 and non-native Gulmoharis. Such
classification is based on the assumption that those fulfilling the criteria know the Gulmohari
language. Significantly, such classification is irrational as it is not necessary that non-native
(those who are left out) does not know the Gulmohari language (specific characteristic).
[1.2.1.1.b] Lack Rational Nexus
‘Reasonable nexus’ between differentia and ‘object of law’ means that the two elements are
logically or rationally related to one another.81 If the classification is inconsistent 82 or contrary83
to the purpose or the objective it would be violating Art. 14.84
In casu, the objective to safeguard the Gulmohari language and people 85 cannot be
achieved by providing reservation86 only to native Gulmohari as it is not necessary that (i)
whose parent are born in Gulmohar and educated in Gulmohari will also know Gulmohari
71
R.K. Garg v. Union of India, AIR 1981 SC. 2138 (India).
72
Kangshari Haldar v. State of West Bengal, AIR 1960 SC 457 (India).
73
Supra note 6.
74
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873 (India).
75
OXFORD DICTIONARY (3rd ed., 2020).
76
Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 (India).
77
Sakhawant Ali v. State of Orissa, (1955) 1 SCR 1004 (India).
78
Deepak Sibal v. Punjab University, AIR 1989 SC 903 (India).
79
In Re-Special Court Bill, AIR 1979 SC 478 (India).
80
Moot Proposition, Annexure B §2(g).
81
Supra note 8.
82
Surendra Mohan Arora v. H.D.F.C. Bank Ltd., (2014) 15 SCC 294 (India).
83
Utkal Contractors & Joinery (P.) Ltd. v. State of Orissa, (1987) 3 SCC. 279 (India).
84
E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (India).
85
86
19
language (ii) who has not studied Gulmohari language for ten years will not know that language
(iii) large private enterprises will stop business in Gulmohar to avoid restrictions.
[1.2.1.2] The Act is manifestly arbitrary
Art. 14 strike at arbitrary administrative and legislative state actions. 87 The expression
“arbitrary” means in an unreasonable manner, without adequate determining principle,
irrationally and not in according to the reason.88 In Shayara Bano v. Union of India,89 it was
held that when something is excessive and disproportionate then it would be manifestly
arbitrary. J. P.N. Bhagwati observed that if the twin test of reasonable classification is not
fulfilled the impugned legislative or executive action would plainly be arbitrary. 90 Further, to
attract equal protection clause, it is necessary that the selection is unreasonable or arbitrary. 91
In casu, the Act is excessive in nature as a high intervention of 65 percent will compromise on
the quality of candidates being hired. Further, it is needless as majority of the population i.e.,
65 percent92 already speaks Gulmohari language. Most importantly, in order to comply with
the threshold, private and public sector has to fire the non-native employees.
[1.2.2] Violation of Article 15 and 16
It is propounded that there is a violation of Article 15 and 16 because [1.2.2.1] the Act
discriminates on the basis of place of birth and domicile [1.2.2.2] the horizontal reservation is
unreasonable and [1.2.2.3] the reservation is excessive.
[1.2.2.1] Discrimination on the basis of place of birth and domicile
Article 15(1)93 bars discrimination on grounds only of religion, race, caste, sex or place of
birth.94 Among all grounds ‘place of birth’ connotes that in no public matter is there to be any
discrimination against a citizen of nation on the ground of place of birth. 95 Dismissal of a person
on the sole ground that he is a non-native of a particular State was held void as amounting to
discrimination only on the ground of place of birth which is prohibited. 96
Further, Article 16 moves a step further and bars discrimination on the basis of religion,
race, caste, sex and place of birth along with residence and descent but specifically in public
87
State of M.P. v. Thakur Bharat Singh, (1967) 2 SCR 454 (India).
88
M/S Sharma Transport v. Govt. of A.P., (2002) 2 SCC 188 (India).
89
Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
90
R.D. Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 (India).
91
Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467 (India).
92
93
INDIA CONST. 1950.
94
Supra note 5.
95
Id.
96
K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495 (India).
20
employment.97 In Dr Pradeep Jain v Union of India,98 the Court observed that policies of
‘sons of the soil’ i.e., prescribing reservation or preference based on domicile or residence
requirement for employment is prima facie unconstitutional. Further, in Kailash Chand
Sharma v. State of Rajasthan and Ors.,99 it was held that residence and domicile by itself
cannot be a ground to accord any preferential treatment for reservation. Moreover, an arbitrary
imposition of a ban against employment amounts to a denial of the right to be considered on
merits for the post applied for.100
In casu, the Act provides reservation on the basis birth of parents 101 and thus violates
Article 15(1) and 16(2). In addition, it provides reservation on the basis of domicile as
prescription of local language indirectly ensures that local citizens are preferred for jobs.
Furthermore, language as a criterion of reservation102 violates right of being considered on
merit.
[1.2.2.2] The horizontal reservation is unreasonable
The State under Article 16 may make two types of reservations- vertical and horizontal.103
Article 16 (4) provides for vertical reservation whereas Article 16(1) provides for horizontal
reservation. 104 Reservations for SC, ST and OBC are vertical reservation. 105 On the other hand,
special reservations for women, handicapped etc. are horizontal reservation. 106
In Indra Sawhney v. Union of India,107 it was held the reservation under Clause (1)
will be valid if it satisfies the test of reasonable classification and such provision is necessary
in public interest to redress an exception situation. Article 16(1) being a facet of the doctrine
of equality permits reasonable classification just as Article 14 does.108 It enables the State to
function effectively by classifying reasonably. 109 However, the reasonable classification must
not contravene with the right to equal opportunity. 110 It is to be made with reference to the
97
Dr. Pradeep Jain v. Union of India and Ors., (1984) LLJ 481 SC (India).
98
Id.
99
(2002) 6 SCC 562 (India).
100
Id.
101
Section 2 (g) (ii)
102
Id.
103
Supra note 8.
104
Mahesh Gupta v. Yashwant Kumar Thirwar, (2007) 8 SCC 621 (India).
105
Supra note 5.
106
Id.
107
Supra note 68.
108
State of Kerala & Anr v. N. M. Thomas & Ors., 1976 SCR (1) 906 (India).
109
Dhirendra Kumar Mandal v. The Supdt. & Remembrancer of Legal Affairs to the Govt. of West Bengal and
Anr., 1954 AIR 424 (India).
110
Supra note 68.
21
objective to be achieved, 111 as equality of opportunity means equality as between the members
of the same class of employees and not between that of separate independent classes. 112 Also
the requirement of non-arbitrariness and fairness is to be fulfilled. 113 In toto, the Court will
interfere when no reasonable basis of classification 114 and arbitrariness115 exists.
Further, whether the reservation achieves a stable equilibrium between justice to the
backwards, equity for the forwards and efficiency for the entire system is subject to case-to-
case fact analysis. 116 The Court maintains this equilibrium by interfering when discrimination
or preference is made between persons belonging to the same class or grade. 117
In casu, the reservation is horizontal118 and not in favour of only women and children,
thus falls under clause (1) of Article 16. This classification is unreasonable and arbitrary as it
fails their test under Article 14. In addition, the classification discriminates in the same class
because the definition of native Gulmohari leaves people who might also know the Gulmohari
language.
[1.2.2.3] The reservation is excessive
The main objective of Article 16 is to create a constitutional right to equality of opportunity in
public office.119 A check and balance has to be maintained on promotion of equality by positive
affirmative actions of State.120 For this purpose, the upper limit of reservation must be 50
percent.121 Thus, ordinarily the reservations kept under Article 16(1) and 16(4) together should
not exceed 50% of the appointments in a cadre or service in any particular year, but for
extraordinary reasons this percentage may exceed. 122 Extraordinary condition might be
promotion of population in far-flung and remote areas, on account of their being out of the
main-stream of national life.123 Also, the reservation cannot be too excessive that the national
interest is likely to be jeopardized by reason of overlooking considerations of merit. 124 It is so
because equality of opportunity means existence depending not merely on the absence of
111
Union of India v. Kohli, AIR 1973 SC 811 (India).
112
Union of India v. No. 664950 IM Havildar/Clerk, (1999) 3 SCC 709 (India).
113
D.T.C Mazdoor Congress, AIR 1991 SC 101 (India).
114
Joshi v. Union of India, AIR 1983 SC 420 (India).
115
Jayashree K.S. v. State of Kerala, AIR 1976 SC 2381 (India).
116
M. Nagaraj v. Union of India, (2006) 8 SCC 212 (India).
117
State of Mysore v. Narasinga Rao, P., AIR 1968 SC 349 (India).
118
Moot Proposition ¶14(a).
119
Supra note 5.
120
G.R. Chavan v. State of Maharashtra, (1998) 9 SCC 48 (India).
121
Supra note 68.
122
Chebrolu Leela Prasad Rao & Ors. v. State of A.P. & Ors., 2020 SCC OnLine SC 383 (India).
123
Id ¶94A.
124
State of A.P. v. Sagar P., AIR 1968 SC 137 (India).
22
disabilities but on the presence of abilities. 125 Thus, any public employment has to be in terms
of constitutional scheme 126 and requirements set down.127
In casu, the Act reserves 65% (horizontally) of the civil posts for native Gulmoahri, 128
leaving only 25% of the seats for citizens without any kind of reservation. This jeopardizes the
opportunity to employment on the basis of merit and presence of ability. Moreover, native
Gulmoharis do not fall under extraordinary circumstances rather they enjoy in a state with high
ranking in Human Development Index and a high per capita GSPD.129
[1.2.3] Violation of right to livelihood under Article 21
Article 21 deals with the concept of life, which has been extended to a great extent.130 Courts
expanded the scope of Article 21 and included various facets of life in it. 131 An equally
important facet is the right to livelihood because no person can live without the means of living,
that is, the means of livelihood.132 In Charu Khurana v. Union of India133 it was held that
everybody should be given equal opportunity to earn their livelihood by exploiting their best
talents. A domiciliary requirement in job is violation of Article 21 because such debarment
creates a concavity in capacity of people to earn livelihood.134
In casu, the 65% threshold 135 interrupts employers to hire candidates of his choice to
run their businesses hence, violating their right to livelihood. It also interrupts employees to
earn livelihood as they do not get equal opportunity to work as per their talent.
[1.3] THE ACT IS VAGUE AND UNCERTAIN
SC in Shreya Singhal v. Union of India136 held that a law affecting FRs may be held bad on
the ground of uncertainty and vagueness. Vagueness means open ended, undefined and
extremely nebulous in its meaning.137 Vague laws may trap the innocent by not providing fair
warning.138 If arbitrary and discriminatory enforcement is to be prevented, laws must provide
125
Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 (India).
126
A.P. SRTC v. P. Chandra Sekhara Rao, (2006) 7 SCC 488 (India).
127
Secretary, State of Karnataka Umadevi, (2006) 2 SCC 747 (India).
128
129
130
Vishaka and Ors. v. State of Rajasthan and Ors., (1997) 6 SCC 241 (India).
131
Charu Khurana and Ors. v. Union of India and Ors., (2015) 1 SCC 192 (India).
132
Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545 (India).
133
(2015) 1 SCC 192 (India).
134
Id ¶45.
135
136
(2015) 5 SCC 1 (India).
137
Id.
138
Grayned v Rockford, 408 U.S. 104.
23
explicit standards for those who apply them. 139 The Court has admitted that in certain
circumstances vagueness might make a statute void.140
In casu, the Act penalize decision makers with imprisonment 141 but leaves it vague as
to which decision maker will be punished. Further, it leaves shop, industry, office and business
undefined hence leaving it at the discretion of competent authority. 142 Furthermore, the Act
does not disclose nature of jobs which are to be subjected to reservation.
[1.4] THE ACT IS AGAINST DOCTRINE OF EXCESSIVE DELEGATION OF DISCRETION
SC in Sheo Nandan Paswan v. State of Bihar143 held that administrative authorities should
not be conferred unfettered and un-canalized discretion and must be strictly regulated through
procedural safeguards. The SC also has held in that in absence of extra ordinary circumstances,
the exercise of a basic right,144 like the right to carry on a lawful business, 145 could not be
reasonably made dependent upon the subjective satisfaction of the government. 146 However,
when discretionary power is vested in administrative authority, the safeguard is to provide a
provision for appeal to Superior authority. 147 Where no higher authorities are available for
appeal, it will amount to failure of requirement of reasonableness. 148
In casu, excessive discretion is delegated to authority as they will decide whether
declaration is submitted on time149 and the 65 percent threshold 150 is fulfilled. Also, there is an
absence of right to appeal against the authority that will impose imprisonment and fines.
[1.5] THE ACT IS AGAINST THE FEDERAL BALANCE OF THE NATION
The entire country is taken as one nation with one-citizenship and every effort of the
Constitution makers is directed towards preserving the unity and integrity of the nation. 151 The
object was to make the citizens national minded and not to be petty and parochial. 152 Also, the
139
Id.
140
State of Madhya Pradesh v. Baldeo Prasad, 1961 SCR (1) 970 (India).
141
142
143
1987 SCR (1) 702 (India).
144
Seshdari R.M. v. Dist. Magistrate Tanjore, AIR 1954 SC 747 (India).
145
State of Maharashtra v. Kamal Sukumar Durgule, AIR 1985 SC 119 (India).
146
Harichand Sarda v. Mizo Dist. Council, AIR 1967 SC 829 (India).
147
Maneklal Chotalal v. Makwana M.G., AIR 1967 SC 1373 (India).
148
Dwarka Prasad Laxmi Narain v. State of U.P., 1954 SCR 803 (India).
149
150
151
V.N. Sunanda Reddy v. State of A.P. 1995 Supp. (2) SCC 235 (India).
152
FREEDOMS OF ARTICLE 19, http://www.mcrhrdi.gov.in/91fc/coursematerial/pcci/Part3.pdf. (Last visited Sep.
10, 2021).
24
aim is to remove internal barriers within the country. 153 Significantly, the Preamble 154 is an
indication that Sapota turned itself into one nation from a geographical unit of individual
principalities and built itself on the idea of the universality of its citizenship. In Dr. Pradeep
Jain v. Union of India and Ors.,155 the Court held that the entire country is taken as one nation
to preserve the unity and integrity of the nation. It is against solidarity that a citizen having his
permanent home in one State or speaking a particular language can be regarded as an outsider
in other State where some other language is spoken. 156 This is a dangerous feeling, which might
break up the country if allowed to grow indiscriminately. 157
In casu, favouring only Gulmohari language speaking population will increase internal
barriers and affect the universality of citizenship. Furthermore, it will treat non-native
Gulmohari, who wants employment in Gulmohar, as an ‘outsider’. In toto, such mandatory
restrictions backed by penalties158 will defy the Preamble.
[1.6] THE BILL WAS ERRONEOUSLY CERTIFIED AS A MONEY BILL
It is submitted that the bill is erroneously certificated as a money bill because [1.6.1] speaker’s
certification of bill is subject to judicial review [1.6.2] the bill does not fulfill the requirements
under Article 199 of the Constitution of Sapota.
[1.6.1] Speaker’s certification is subject to judicial review
It is contended that speaker’s certification is subject to judicial review as [1.6.1.1] judicial
review is a part of basic structure [1.6.1.2] judicial review is possible in case of ‘illegality’ not
‘irregularity’ [1.6.1.3] speaker’s certification is not ‘final’ under Article 199(3).
[1.6.1.1] Judicial review is a part of basic structure
In the case of Indira Gandhi v. Raj Narayan,159 it was held that judicial review is a part of
basic structure. It is one of the mechanisms which help to give force to the Rule of Law. 160 It
is available to protect the rights of the individual against an overbearing state.161 Judicial review
acts as a check on the arbitrary actions of individuals holding a constitutional post. 162
153
D. N. Banerjee, Some Aspects Of Our Fundamental Rights: Article 19, THE INDIAN JOURNAL OF POLITICAL
SCIENCE, Feb. 2015, at pp. 26–36.
154
INDIA CONST. 1950.
155
Supra note 98.
156
Supra note 151.
157
Dr. Pradeep Jain v. Union of India and Ors., (1984) LLJ 481 SC (India).
158
159
AIR 1975 SC 2299 (India).
160
Judicial Review, The Government Response to Independent Review of Administrative Law, (Mar. 2021)
https://assets.publishing.service.gov.uk/government/ (last visited Sep. 10, 2021).
161
Id.
162
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 (India).
25
In casu, judicial review must be done to protect the rights of citizens from the arbitrary
action of speaker i.e., a constitutional post.
[1.6.1.2] Possible when ‘illegality’ not ‘irregularity’
The validity of proceedings in a State Legislature can be subject to judicial review on the
ground of illegality or a constitutional violation.163 The SC has sought to distinguish between
"procedural irregularity" and “substantial illegality”, 164 holding that “substantial illegality” is
subject to judicial review while “procedural irregularity" is not 165 as it is immune from judicial
review under Article 212. In In re, Special Reference No. 1 of 1964,166 it was held that
procedural irregularity is lapse in procedure relating to a non-mandatory clause. But when there
is a lapse of procedure mandated by the Constitution, it will amount to procedural illegality. 167
Thus, it is advocated that error in certification is [1.6.1.2.a] substantive illegality and [1.6.1.2.b]
not procedural irregularity, thus not immune under Article 212.
[1.6.1.2.a] Error in certification is ‘substantive illegality’
The post of the Speaker is a creation of the Constitution and the powers of the Speaker have to
be exercised in accordance with the Constitution. 168 Thus, while certifying a bill, the Speaker
does not have unlimited power.169 When a Bill does not fulfill the essential constitutional
condition, the said requirement cannot be evaporated by certification of Speaker.170 It is a
constitutional mandate to decide the nature of the bill according to Article 110(1) and Article
199(1).171 Further, the role of the upper house, as an institution of federal bicameralism172
constitutes a part of the basic structure of the Constitution. 173 By declaring an ordinary bill to
be a money bill, the speaker limits the role of the upper house.174 It is so because the role of
upper house in passage of money bill is limited to recommendation and not binding. 175 Ergo,
163
Ramdas Athawale v. Union of India and Ors., (2010) 4 SCC 1 (India).
164
Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, 10 NUJS LAW REVIEW
(2017).
165
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Ors., (2007) 3 SCC 184 (India).
166
AIR 1965 SC 1964 (India).
167
Supra note 165.
168
Alok Prasanna Kumar, Why the Centre’s dubious use of money bill must not go unchallenged, (May 11, 2016)
https://scroll.in (last visited Sep. 10, 2021).
169
Ram Gopal Dixit v. Public Information Officer, (2018) SCC CIC (India).
170
Supra note 162.
171
Id.
172
Jay Shankar Pathak v. Election Commission of India, AIR 2012 Jhar 58 (India).
173
Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (India).
174
Roger Mathew v. South Indian Bank Limited, (2020) 6 SCC 1 (India).
175
Nirmalendu Bikash Rakshit, Power and Position of the Lok Sabha, ECONOMIC AND POLITICAL WEEKLY, Oct.
2004, pp. 4410–4412.
26
Article 199 is constitutional mandate176 and to erroneously regard a bill as money bill is
violation of substantive constitutional provision, hence, an illegality.
In casu, the bill introduced by Ms. Azhilu 177 is wrongly declared as money bill and
thus, amounts to substantive illegality.
[1.6.1.2.b] No immunity under Article 212
In Pandit M.S.M. Sharma v. Dr. Shree Krishna178 it was held that Article 212 prohibits the
validity of any proceedings in a Legislature of a State from being called in question in a Court
of law on the ground of any alleged “irregularity of procedure”. Procedure, in the context of
Article 212, means rules and regulation made by legislature for its functioning 179 under Article
208 to 212. It is for this reason Article 208 to 212 (counterpart of Article 118 to 122) are
covered under the rubric of the general heading "Procedure Generally". 180 Effectively, if the
House chooses to make a procedure for itself, violation of such procedure by the House itself
cannot be questioned in a Court of law.181 But, at the same time, it cannot be stretched to protect
non-compliance of constitutional provision182 i.e., Article 199. Further, Article 255 does not
treat certification of a bill by the Speaker as a ‘money bill’ as "matters of procedure" immune
from judicial review. It calls only recommendation and sanction as procedure and not
certification. 183
In casu, the bill introduced by Ms. Azhilu 184 is wrongly declared as money bill and thus
it is not procedural irregularity but substantive illegality.
[1.6.1.3] Certification is not ‘final’ under Article 199(3)
The ‘finality clause’ i.e., Article 199(3) does not prohibit judicial review. 185 It is a settled law
that the phrase “shall be final” aims at avoiding any controversy with respect to the upper
houses and before the President and Governor.186 In Raja Ram Pal v. Hon’ble Speaker, Lok
Sabha,187 the Court held that clauses that attach finality to a determination of an issue do not
altogether oust the Court’s jurisdiction. Notable difference in the language of the Articles has
176
Anup Surendranath, Judicial Review of Speaker’s Determination Concerning Money Bills, https://ccgdelhi.org
(last visited Sep. 10, 2021).
177
178
1959 Supp. (1) SCR 806 (India).
179
Supra note 164.
180
Supra note 162.
181
Supra note 164.
182
Id.
183
Id.
184
185
Kihota Hollohan v. Zachilhu, AIR 1993 SC 412 (India).
186
Supra note 162.
187
(2007) 3 SCC 184 (India).
27
to be looked into.188 Where a constitutional provision evinces a specific intent to exclude

judicial review, clear words to that effect are used, like Articles189 243O(a) and 243ZG(a)
specifically use the phrase "shall not be called in question in any Court"
In casu, the speaker’s certification of bill190 is not protected under Article 199(3).
[1.6.2] The bill does not fulfill the requirements under Article 199
The bill does not fulfill the requirements under Article 199 because [1.6.2.1] the primary
objective of the Act does not fall under Article 199(1)(a) to (g) and [1.6.2.2] Imposition of fine
or penalties does not deem a bill to be a money bill. Arguendo, [1.6.2.3] the bill does not contain
‘only’ provisions falling under Article 199(1)(a) to (g).
[1.6.2.1] The primary objective does not fall under Article 199(1)
Article 199(1) provides definition of a Money bill. 191 A money bill is concerned with the issues
‘only’ pertaining to (a) imposition, abolition, remission, alteration or regulation of taxes 192 (b)
regulation of borrowings or guarantee given by State193 (c) revenue or expenditure charged on
consolidated fund of the State194 or (d) any matter incidental to such issues. 195 Importantly, if
a bill contains provision involving expenditure from the consolidated fund of the State but does
not include any of the matters mentioned in Article 199, it will be a financial bill (II) and not
money bill. 196 Contextually, consolidated fund is single unified account for all governmental
departments.197 Article 202(3) explicates the provisions related to taxation, borrowing of
money by the government, expenditure from or receipt of the bills through consolidated fund.
Further, when the primary purpose of a bill is not governed by Article 199(1), then
certifying it as a money bill is an unconstitutional act.198 Also, when the principal enactment
does not have the dominant character of a 'money bill', all matters incidental thereto and
inserted there in would not draw the colour and characteristic of a 'money bill'. 199
188
N.P. Ponnuswami v. Returning Office, Namakkal Constituency, Namakkal, Salem, Dist., 1952 SCR 218 (India)
189
INDIA CONST. 1950.
190
191
Supra note 8.
192
INDIA CONST. art. 199(1)(a).
193
INDIA CONST. art. 199(1)(b).
194
INDIA CONST. art. 199(1)(a) to (f).
195
INDIA CONST. art. Article 199(1)(g).
196
INDIA CONST. art. Article 207(3).
197
DR SHAKIL AHMAD KHAN, THE LAW LEXICON 329 (3rd ed. 2012).
198
Supra note 162.
199
Roger Mathew v. South Indian Bank Limited, (2020) 6 SCC 1 (India).
28
In casu, the primary objective, 200 i.e., to provide reservation and preference to native
Gulmohari, is not concerned with revenue or expenditure of consolidated fund, 201 tax or state
borrowing. Ergo, the bill cannot be certified as money bill.
[1.6.2.2] Imposition of fine or penalties does not deem a bill to be a money bill
According to Article 199(2), any bill shall not be deemed to be a money bill by reason only
that it provides for the imposition of fines or penalties. Significantly, where the substantive
object of a statute is not the raising of money, but the regulation of a certain line of conduct,202
or the imposition of a penalty or exaction for departure from a specified course of conduct in
business it is not a statute imposing a tax. 203
In casu, the Act cannot be deemed to be a money bill just because it provides for
imposition of fine204 and penalty.
[1.6.2.3] Bill can contain ‘only’ provisions under Article 199(1)
Arguendo, Article 199(1) is narrow and exhaustive in nature.205 Justice D.Y. Chandrachud has
observed that a bill will be deemed to be money bill ‘only’ if it contains matters provided under
Article 199(1).206 In other words a bill which contains any or all of the enumerated matters
under Article 199(1) and nothing besides is indisputably a money bill. 207 This means that if
there is a bill which has other provisions and also a provision enumerated under Article 199(1),
it will not become a money bill. 208
In casu, all the provisions of the Act do not fall under Article 199(1). In fact, none the
provisions fulfill the prerequisites of a money bill.
2. WHETHER THE CONSTITUTION (THIRTY SIXTY) AMENDMENT ACT, 2020

VIOLATES BASIC STRUCTURE OF CONSTITUTION?
It is humbly submitted that the Constitution (Thirty Sixth) Amendment Act, 2020 is violative
of ‘Basic Structure’ of the Constitution of Sapota as, [2.1] it infringes the sanctity of
parliamentary democracy; [2.2] it violates freedom of speech and expression; [2.3] it violates
200
201
Moot Proposition, Clarification ¶11.
202
R. v. Barger, (1908) 6 CLR 41.
203
Supra note 5.
204
205
Supra note 162.
206
Id.
207
Thomas Erskine May, A treatise on the law, privileges, proceedings and usage of Parliament, THE AMERICAN
POLITICAL SCIENCE REVIEW, Feb. 1908, at pp. 320-325.
208
CONSTITUENT ASSEMBLY DEBATES, (4 November, 1948).
29
Rule of Law with arbitrary application; [2.4] it disregards political justice and parliamentary
democracy.
[2.1] THE AMENDMENT DESTRUCTS THE SANCTITY OF PARLIAMENTARY DEMOCRACY

The fundamental features of the Constitution, namely, secularism, democracy and the freedom
of the individual would always subsist in the welfare state.209 Constitution is logical whole,
each provision of which is an integral part thereof, and it is, therefore, logically proper, and
indeed imperative, to construe one part in the light of the provisions of the other parts.210 Upon
the adoption of an amendment to a Constitution, the amendment becomes a part thereof; as
much so as if it has been originally incorporated in the Constitution; and it is to be construed
accordingly. 211 Every improper enhancement of its own power by parliament is incompatible
with the doctrine of basic structure.212
Parliamentary Democracy is an inherent part of basic structure of the Constitution. 213
Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible
government, and (iii) accountability of the Councils of Ministers to the Legislature. 214
Our democracy like all true parliamentary democracies is based on the principles of
debate and discussion.215 The concept of popular sovereignty is well settled in parliamentary
democracy and it means that the people express their will through their representatives elected
by them at the general election.216 To ensure effective debate in a democracy every voice must
be heard. Parliament is a venue for passionate debate. 217 In a parliamentary democracy, the
obligations of constitutional morality are equally binding on the government and the
opposition. 218
In casu, effective debate is hindered when party “directs” the members to vote as per
party,219 further infringing principles of parliamentary democracy. The Constitution must be
209
His Holiness Kesavananda Bharati v. State of Kerala and Anr., AIR 1973 SC 1461 (1535, 1603, 1628, 1860)
(India). See also, Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (India).
210
1 WESTEL WOODBURY WILLOUGHBY, THE CONSTITUTIONAL LAW OF UNITED STATES (2nd ed.).
211
1 THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS (8th ed.).
212
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 (India); See also, Minerva Mills Ltd. v. Union of India
(1980) 3 SCC 625 (India), Waman Rao v. Union of India (1981) 2 SCC 362 (India).
213
Supra note 209.
214
S. R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126 (India).
215
Supra note 209.
216
Id. ¶ 971.
217
Chakshu Roy, Lung Power, The Acoustics of the House, Indian Express, Aug. 15 2021.
218
André Béteille, Constitutional Morality, ECONOMIC AND POLITICAL WEEKLY, Oct. 2008.
219
Moot Proposition, Annexure A ¶ 2(b).
30
interpreted in its true spirit with insight into the changing social needs upholding the basic
structure of the constitution for securing political justice. 220
[2.1.1] Deliberation and Discussion is imperative in Parliament
The Houses of Parliament are constantly engaged in discussion, deliberation, debating public
issues, shaping and influencing government policy and ventilating public grievance. 221 Debate,
discussion and persuasion are the means and essence of the democratic process as they serve
an essential and healthy purpose in the functioning of Parliamentary democracy. 222 It is through
the fearless expression of their views that Parliamentarians pursue their commitment to those
who elect them. 223
In a parliamentary system, legislators are expected to exercise their independent
judgement while determining their position on an issue. 224 In the present case, to ensure
deference by the party members, Ms. Azhilu declared the impugned Bill as money bill to
compel party members to vote in its favour.225 Therefore, makes deliberation and discussion
infructuous.
[2.1.2] Direction by party discourages debate in legislature
One constitutional power is necessarily conditioned by the others as the Constitution is one
‘coherent document’.226 It is necessary to recall the spirit in which Constitution was framed, fir
the same spirit ought to govern its amendment. 227
Power to disqualify a member must be conditioned to member’s democratic rights in
parliament or state legislature. Debates of real value take place during discussion on
appropriations when every branch of government administration runs the gauntlet of
parliamentary criticism. 228 Laws are built on clash of opinions rather than of interests, and
debate requires ‘independence from party ties and freedom from selfish interests’ 229
Debate, discussion and persuasion are, therefore, the means and essence of the
220
Indira Sawhney v. Union of India, 1992 Supp. (3) SCC 217 ¶22 (India).
221
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 883 (8th ed. 2018).
222
Shri Kihoto Hollohon v. Zachillu AIR 1993 SC 412 ¶43, 44 (hereinafter Kihoto Hollohan) (India).
223
Kalpana Mehta and Ors. v. Union of India and Ors., (2018) 7 SCC 1 (India).
224
Edmund Burke, Speech to the Electors of Bristol (1774).
225
226
Supra note 220.
227
3 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 3172 (4th ed. 2006).
228
Supra note 218.
229
Alan Finlayson, ‘What is the Point of Parliamentary Debate?’ Deliberation, Oratory, Opposition and Spectacle
in the British House of Commons. https://ueaeprints.uea.ac.uk/id/eprint/64122/1/Accepted_manuscript.pdf (last
visited Aug. 20 2021).
31
democratic process.230 By curtailing a parliamentarian’s discretion in voting, the provision231

has effectively mitigated the need for debate in parliament.232
[2.1.3] Ineffective debate frustrates representation of people in Parliament
The Parliament and State Legislature is composed of representatives of the people chosen by
direct election on the basis of universal adult suffrage. The power of speech exacts democratic
accountability from elected governments. 233 While interpreting the provisions of the
Constitution, the safe and most sound approach for the constitutional Courts to adopt is to read
the words of the Constitution in the light of the spirit of the Constitution so that the
quintessential democratic nature of our Constitution and the paradigm of representative
participation by way of citizenry engagement are not annihilated. 234
The form of government envisaged under a parliamentary system of democracy is a
representative democracy in which the people of the country are entitled to exercise their
sovereignty through the legislature to which the executive, namely, Council of Ministers is
responsible.235
In casu, Mr. Giduga selflessly represented the interests of people when he voted against
the impugned Bill and challenged it in the Hon’ble High Court of Gulmohar being
unconstitutional. 236
[2.1.3.1] Privileges to ensure effective function of Parliament
Parliamentary privilege was introduced to prevent any undue interference in the working of the
parliament and thereby enable the Members of Parliament to function effectively and
efficiently without unreasonable impediment. 237 Parliamentary democracy envisages that
matters involving implementation of policies of the government should be discussed by the
elected representatives of the people. 238
According to Schmitt the ‘intellectual foundation’ of
Parliaments lies in their commitment to ‘a process of confrontation of differences and opinions’
out of which a political will is established. 239
230
Supra note 222.
231
Moot Proposition, Annexure A ¶2.
232
Kartik Khanna and Dhvani Shah, Anti-Defection Law: A Death Knell for Parliamentary Dissent, 5 NUJS LAW
REVIEW 103 (2012).
233
Supra note 223.
234
State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 ¶285 (India).
235
State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640 ¶ 726 (India).
236
237
Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184 (India); See also, Powers, Privileges and Immunities of State
Legislatures, In re, Special Reference No. 1 of 1964, AIR 1965 SC 745 (India), Kalpana Mehta and Ors. v. Union
of India (India).
238
Supra note 222.
239
Supra note 229.
32
[2.1.4] Disturbs balance between rights of members and their party

Unprincipled defection is a political and social evil. 240 The anti-defection law seeks to
recognize the practical need to place the proprieties of political and personal conduct. 241
However, in the present case, the amendment seeks to tip the scales towards party autonomy
by implying deference to the head of the party or the person authorized to pass direction in case
of voting.242
[2.1.5] Ensured in Directives Principles of State Policy
Political parties are the sine qua non of Parliamentary democracy. 243 Existence of political
parties is an essential feature of our Parliamentary democracy. 244 But parties may divert in
ideology contrary to the Constitution. Such deference to parties may lead to policies not in
consonance with the Constitution, especially Directive Principles of State policy, along with
Part III of the Constitution. Subsequently, eroding the basic feature of the Constitution.
Similar apprehension has been depicted in Constituent Assembly debate-
‘And the executive which is embodied in the constitution is what is termed the parliamentary
executive which comes into power on account of the majority of a particular party having been
elected by the electorate; and that executive is responsible to the people through the
parliament. Therefore, inevitably there would be parties in the country which seek election to
parliament and these political parties have different and distinctive ideas, ideals, ideologies,
programmes and principles. Now the question is, in these circumstances what is the place of
these directive principles of State policy in a parliamentary democracy in which the executive
is made responsible to the parliament which has been chosen and elected on the merits of the
principles and programmes laid down by that party? We can conceive of cases where a party
which has been returned by the people has programmes and principles which are contrary to
the principles that are laid down in this Chapter.’245
[2.2] THE AMENDMENT VIOLATES FREEDOM OF SPEECH AND EXPRESSION
Freedom of speech is the bulwark of democratic government.246 The Rights and immunities
under Article 105(2) of the Constitution are placed higher than the fundamental right in Article
19(1).247 “It ought to be the happiness and glory of a representative to live in the strictest
240
Kihoto Hollohan ¶49.
241
Id.
242
Moot Proposition, Annexure A ¶2(b).
243
B.R. Patil S/O Ramachandrappa v. Rajeev Chandrashekar, Major, ILR 2007 Kar 317 (India).
244
Jay Shankar Pathak v. The Election Commission of India, AIR 2012 Jhar 58 (India).
245
CONSTITUENT ASSEMBLY DEBATES (19 November, 1948).
246
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 883 (8th ed. 2018) at p. 1058.
247
33
union… But his unbiased opinion, his mature judgment, his enlightened conscience, he ought
not to sacrifice to you, to any man, or to any set of men living… Your representative owes you,
not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices
it to your opinion”248 Only those remain free who use their freedom. 249
In the present case, unnecessary bondage is made between a member and their party
through the Amendment. Mr. Giduga desired to oppose the bill but the party leader Ms. Azhilu
compelled her party members to vote in favour of the bill. 250
[2.2.1] Freedom of expression ensures individual autonomy
Democracy is based essentially on free debate and open discussion, for that is the only
corrective means of Governmental action in a democratic set up.251 The fundamental freedom
of choice could be undermined if the member is mandated to vote along the party line on Bills
or motions.252 Liability of disqualification of an elected member for freely expressing his views
on matters of conscience, faith and political belief are indeed restraints on the freedom of
speech further restraints opposed to public policy. 253
It is not by wearing down into uniformity all that is individual in themselves, but by
cultivating it and calling forth, within the limits imposed by the rights and interest of others,
that human beings become a noble object of contemplation. 254
[2.2.2] Infringes Right to Dissent of a Member of Legislature
An obvious corollary of encumbered voting is that the law has negatived any scope for
expressing dissent in the House.255 For a parliamentarian to effectively fulfil their functions,
they must have the right to vote per their conscience and not to be tied to party lines. 256 The
free flow of dialogue ensures that in framing legislation and overseeing government policies,
parliament reflects the diverse views of the electorate which is an elected institution
represents.257
‘Legislators face the following options when voting on policy decisions- first, they can choose
to support their voters and stand a good chance of re-election. Second, they can consistently
248
JAG Griffith and Michael Ryle, Parliament Functions, Practice & Procedures (1989 ed. p. 70).
249
The Constitution of the Swiss Confederation, Preamble.
250
251
Maneka Gandhi v. Union of India, (1978) 2 SCR 621 (India).
252
Roshni Sinha and Prachi Kaur, Anti-Defection Law: Intent and Impact, PRS Legislative Research (2019)
https://prsindia.org/parliamenttrack/discussion-papers/anti-defection-law-intent-and-impact (last visited Aug.
2021).
253
Amalgamated Society of Railway Servants v. Osborne, 1910 AC 87: 26 TLR 177.
254
JOHN STUART MILL, ON LIBERTY 139 (Laura Ross ed. Sterling Publishing Co., 2012).
255
V. N. SHUKLA, THE CONSTITUTION OF INDIA 1064 (M. P. Singh ed., 2008).
256
Supra note 232.
257
Supra note 220.
34
support their party and vote with their party on policy issues, thereby ensuring their ability to
rise in power in the party, attain nomination for the next election and seek other benefits as a
virtue of their loyalty and status in the party.’ 258
[2.2.3] Unreasonable restriction on Freedom of Speech
The object of anti-defection law is to curb the evil of political defections motivated by lure of
office or other similar considerations which endanger the foundations of our democracy. 259
Corruption is the major cause of defection. 260 In the present case, prevention of corruption will
prevent unethical defection not curbing the Freedom of speech of legislators.
[2.2.3.1] No exigencies of situation required such amendment in Constitution of Sapota
In considering the validity of a constitutional amendment the changing and
the changed circumstances that compelled the amendment are important criteria. 261 The
observations of the U.S. Supreme Court "..to read its language in connection with the known
condition of affairs out of which the occasion for its adoption may have arisen and then to
construe it, if there be there in any doubtful expressions, in a way so far as is reasonably
possible, to forward the known purpose or object for which the amendment was adopted.."262
However, in casu Sapota did not face, chronically, the evil of defections in the
parliament so as to necessitate such amendment in the current scenario. Therefore, it is an
unreasonable restriction. Also, such an amendment disregards post-poll alliance leading to
minority government.263
[2.3] THE AMENDMENT VIOLATES RULES OF LAW WITH ARBITRARY APPLICATION
Rule of Law has been invoked by the Courts in several instances to emphasise upon certain
Constitutional values and principles. 264 In E.P. Royappa,265 the Court while evolving the
Doctrine of Arbitrariness propounded that State’s action must not be guided by any extraneous
or irrelevant considerations because that would be the denial of equality. 266
Where the operative reason for State action is not legitimate and relevant but is
extraneous and outside the area of permissible considerations, it would amount to mala fide
258
Subramanian, Rajen. Developing and Testing a Theory of Legislative Party Fragmentation. University of
Wisconsin-Madison: Unpublished PhD Dissertation, 2008.
259
260
Ministry of Home Affairs, Report of Committee on Defections under the Chairmanship of Shri Y. B. Chavan
(1969).
261
Supra note 222.
262
Maxwell v. Dow (44 Lawyer's Edition 597, page 605) (U.S.).
263
Moot Proposition, Annexure A
264
265
E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 (India).
266
Id.
35
exercise of power and that is hit by Art.14.267 Moreover, where an act is arbitrary it is implicit
that it is unequal, both according to political logic and constitutional law. 268
In the present case the Amendment is arbitrary prima facie, as no application of mind,269
is emphasised on deciding the defection of a member.
[2.3.1] The Speaker has not been made a Tribunal
The Hon’ble Late P.M., Pandit Jawahar Lal Nehru said “We would like the distinguished
occupant of the Chair to guard the House from every possible danger, even from the danger of
executive intrusion”.270 There is always a danger from majority that it may choose to ride
roughshod over the opinions of minority, and it is there the Speaker comes in to protect each
member from any unjust activity by a dominant group or dominant Govt.271
Further, the Speaker of the Legislative Assembly is regarded as the Master of the
House,272 and presides over the sittings of the house and represents the dignity of the House.273
In the present case, the Constitution (Thirty Sixth) Amendment Act, 2020 does not appreciate
the Speaker as an adjudicatory authority for deciding on defection. 274 The Speaker/Chairmen
hold a pivotal position in the scheme of Parliamentary democracy. It is inappropriate to express
distrust in the high office of the speaker.275
[2.3.2] Violates Principles of Natural Justice
The cardinal principle governing constitution of tribunals is natural justice. 276 Principles of
natural justice are rules laid down by the Courts as being the minimum protection of the rights
of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-
judicial and administrative authority while making an order affecting those rights. 277 Justice
should not only be done, but manifestly be seen to be done. 278 The underlying object of the
rules of natural justice is to ensure fundamental liberties and rights of subjects. 279 In casu, the
267
Id., See also, Seshrao Nagorao Umap v. State of Maharashtra, 1985 (1) Bom. CR 30 (India).
268
Supra note 262.
269
State of U.P. v. Ashok Kumar Nigam, Civil Appeal No. 9029 of 2012 (India).
270
10 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 6241 (8th ed. 2018).
271
Id.
272
K. Lakshminarayanan v. Union of India, W. P. 16275 of 2017 (India).
273
274
Moot Proposition, Annexure A.
275
2 G. V. Mavalankar, “The Office of Speaker”, Journal of Parliamentary Information, April 1956, No. 1, p.33;
Kihoto Hollohon.
276
R.C. Saksena, Adjudication by Tribunals in India: Landmark in Field of Natural Justice, 37 JILI (1995) 222.
277
Canara Bank v. Debasis Das (2003) 4 SCC 557: A.I.R. 2003 S.C. 2041 (India).
278
Ranjit Thakur v. Union of India, (1987) 4 SCC 611 (India).
279
P.D. Dinakaran v. Judges Inquiry Committee and Ors., (2011) 8 SCC 380 ¶31 (India).
36
right to be heard of the member allegedly defecting is violated as they are disqualified
immediately without due process.280
[2.3.3] Lacks procedure and rules
Rule of Law excludes arbitrariness and unreasonableness. To ensure this, it was suggested laws
should not give unfettered power.281 The Law on defection “seeks to provide safety measures
to protect both the government and the opposition for instability arising out of shifts of
allegiance”. However, parliamentary party may value anti-defection laws for a darker
purpose—to bolster control of their members. 282
In casu, the present Amendment lacks in resting the responsibility duly in a
constitutional authority to ensure the fulfillment of the objective of the Amendment. A party
leader or the person authorized has an unguided discretion 283 and this absolute discretion is
uncontrolled by guidelines which may be antithesis to the rule of law.284
[2.4] THE AMENDMENT DISREGARDS POLITICAL JUSTICE AND PARLIAMENTARY
DEMOCRACY
Democracy is a meaningful concept whose essential attributes are social, economic and
political justice.285 The Governor in our system does not function as constitutional head for the
whole gamut of his responsibilities. 286 Where no single party or group command absolute
majority, the Governor has to call upon to form the Government, the leader of the party or
group which, in so far as the Governor is able to ascertain, has the largest support in the
legislative Assembly, leaving it to the Assembly to determine the question of confidence. 287
In the present case, the Amendment curbs political participation of elected
representatives and violated principle of parliamentary democracy when the Governor
disregarded the alliance between Mr. Giduga and Mr. Ka’age having majority votes. It is
miscarriage of political justice.288
[2.4.1] Governor is not an independent authority
280
281
Bachan Singh v. State of Punjab, AIR 1982 SC 1325 (India).
282
Malhotra, G. C., Anti-Defection Law in India and the Commonwealth. New Delhi: Metropolitan Book Co. Pvt.
Ltd. (2006).
283
284
Sudhir Chandra v. Tata Iron & Steel Co. Ltd., AIR 1984 SC 1064 (India).
285
Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625 ¶16 (India).
286
Murali Krishnan, Hung Assembly: Whom should Governor call first?, BAR & BENCH, (May 28, 2018),
https://www.barandbench.com/columns/hung-assembly-governor-call (last visited Aug. 30, 2021).
287
Report of the Sarkaria Commission, Role of Governor ¶4.4.02; See also, S.R. Bommai v. Union of India, 1994
AIR 1918 (India).
288
37
Governors, in general, is that they are unable to shed their political inclinations, predilections
and prejudices while dealing with different political parties within the State. As a result,
sometimes the decisions they take in their discretion appear as partisan and intended to promote
the interests of the ruling party in the Union Government, particularly if the Governor was
earlier in active politics or intends to enter politics at the end of his term. Such a behavior, it is
said, tends to impair the system of Parliamentary democracy, detracts from the autonomy of
the States, and generates strain in Union-State relations. 289
Therefore, the Amendment violated basic structure and prevented Mr. Giduga to form a stable
government.290
[3] WHETHER HIGH COURT OF GULMOHAR CAN LEGALLY DIRECT THE
GOVERNOR TO FORM A POST POLL ALLIANCE?
It is humbly submitted before the Hon’ble Court of Gulmohar that respected High Court can
direct the governor in the present case to form a post poll alliance due to following reasons,
[3.1] text of Constitutional amendment does not expressly or impliedly prohibits formation of
post poll alliance, [3.2] judicial review of governor’s actions and decision making process
cannot be escaped as decision of Governor is not reasonable as well as he is involved in political
complexions, [3.3] order of calling parties to be called to prove majority was not followed by
the Governor and [3.4] Article 361 immunity cannot be claimed by the governor.
[3.1] TEXT OF CONSTITUTIONAL AMENDMENT DOES NOT EXPRESSLY OR IMPLIEDLY
PROHIBITS FORMATION OF POST POLL ALLIANCE
Constitution is supreme lex, the permanent law of the land. It is not a self- executing document,
and thus meanings of several provisions may not always be self-evident. There has to be
independent organ to interpret, expound and enforce the same. 291 No branch be it executive or
the legislature or the judiciary are above or beyond it. They derive their authority from the
constitution and has to act within the limits of its authority. 292
[3.1.1] Liberal Interpretation of constitutional text
Constitution is a living and organic thing and is never static, 293 and therefore it needs to be
construed broadly and liberally. 294 Constitution is a mechanism under which the law is made
289
Supra note 287.
290
291
MP JAIN, INDIAN CONSTITUTIONAL LAW (8th ed. 2018) at p. 1668.
292
Rajasthan v. UOI, AIR 1977 SC 1361 (India).
293
Life Insurance Corporation of India v. Manubhai D Shah, AIR 1993 SC 171, p. 176-177 (India).
294
Goodyear India Limited v. State of Haryana, AIR 1990 SC 781 (India).
38
and nor merely an act which declares what the law is to be.295 Constitution should be interpreted
liberally, as a constitution and not as a statue.296Constitutional provisions are required to be
understood and interpreted with an object-oriented approach.297 It should be construed as to
“further the principles of a representative and responsible government”.298
While interpreting, purpose and intendment of the framers as gathered from the context
and the setting in which the words occur,299 are to be acknowledged. When the existing law
appears to be deficient requiring the filling of the gaps, judiciary in interprets existing law as a
living concept to do complete justice to it.300 It is said that “It is emphatically the province and
duty of the judicial department to say what the law is”. 301 Interpretation so done should sub-
serve the underlining Constitutional purpose.302
[3.1.2] Narrow Interpretation of constitutional text by the Governor
In casu, Article 162A of the Constitution (Thirty Sixth) Amendment Act, 2020, says that the
“Governor of the state shall invite the head of the legislative party or the head of the legislative
alliance enjoying the support of more than fifty per cent of the elected members of the
legislative Assembly of such state to take oath as CM......”303.The text of the constitution
envisages ‘legislative alliance’ and not particularly ‘pre-poll’ or ‘post-poll’ separately. The
contention, if raised, that clause 1 of the Article goes on to mention that, “elected members of
a political party or parties which had mutually agreed to contest the election in a concerted
manner, shall designate one person as the “head of legislative party” or “head of legislative
alliance”.304
Both the clauses require liberal interpretation and are to be read separately and not
together. Selection of head of legislative alliance in a post-poll coalition is practically not
possible as that is formed after the results of the elections and thus this was the intent of the
legislators behind envisaging ‘legislative alliance’ and not writing post or pre poll alliance
separately.
295
Indian Cement Limited v. State of Tamil Nadu, AIR 1990 SC 85 (India).
296
Pathumma v. State of Kerala, AIR 1978 SC 771 (India).
297
SR Chaudhari v. State of Punjab, AIR 2001 SC 2707 (India).
298
299
Union of India v. Sankal Chand Himmatlal, AIR 1977 SC 2328 (India).
300
Dr. Kiran Gardner, Expanding notions of justice through judicial process, 1 GALGOTIAS JOURNAL OF LEGAL
STUDIES, (2013).
301
Chief justice John Marshall, Marbury v. Madison (U.S.A.).
302
Supra note 300.
303
Moot proposition, Annexure- A art. 162A. cl. (2).
304
Moot Proposition, Annexure- A art. 162A. cl. (1).
39
A constitution, by contrast, is drafted with an eye to the future. Its function is to provide
a continuing framework for the legitimate exercise of governmental power. However Ms
Bulbul interpreted the constitutional text literally without analysing the intent of the legislature
and announced that she would invite Ms. Azhilu to form the government since the text of the
Constitution was clear and a “post-poll alliance” was not envisaged under it.305
[3.2] JUDICIAL REVIEW CANNOT BE ESCAPED
Doctrine of judicial review is the idea to test and invalidate ‘state action’306. It has a function
of protecting the constitution against any undue encroachment by the government and
legitimising governmental action.307It is no doubt true that the Constitution has to be interpreted
so as to give credence to judicial review, vested in the High Court under article 226 of the
Constitution which is an integral part and essential feature of the constitution as well as the
basic structure of the Constitution. 308
In case of Dadu v. State of Maharashtra,309 the judiciary is constituted as the ultimate
interpreter of the constitution and determines the context as well as the scope of powers of
branch of governments in order to ensure that the action of any branch does not exceed the
limit.
[3.2.1] Governor’s action is under the purview of Article 226
Governor has discretionary powers 310 which are extremely limited and entirely amenable to
judicial review.311 Power envisaged under Article 226 of the Constitution is confined to the
decision-making process and reviews as to how a decision was made, the very process of it.312
In case of State of A.P v. P.V. Hanumantha Rao,313 it was observed that if deciding
authority while deciding the matter has ignored vital evidence and thereby arrived at erroneous
conclusion or has misconstrued the provisions of the relevant act, the constitutional power of
High Court under Article 226 can be invoked. The Court would sit in judgement only on the
correctness of the decision-making process and not on the correctness of the decision
itself. 314Article 226 can be invoked to set aside the errors and prevent gross injustice. 315 In
305
Moot Proposition, ¶28.
306
Marbury v. Madison (U.S.A.), See also, MP JAIN,,INDIAN CONSTITUTIONAL LAW(8th ed. 2018) at p. 1667.
307
308
Dr. Y.S. Rajasekhara Reddy v. His Excellency, 1999 (6) ALT 381 (India).
309
Dadu v. State of Maharashtra, (2000) 8 SCC 437, 453 (¶23) (India).
310
INDIA CONST. art. 163.
311
Nabam Rebia and Bamang Felix v. Deputy Speaker, (2016) 8 SCC 1 (India).
312
10 DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2012) at p. 1192.
313
State of A.P. v. P.V. Hanumantha Rao, (2003) 10 SCC 121 (133) (India).
314
H.B Gandhi v. Gopinath & Sons, (1992) Supp (2) (India); see also Style v. Union territory, Chandigarh, (1997)
7 SCC 89 (para 11) (India).
315
10 DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2012) at p. 1192.
40
casu, decision making by governor regarding selection of single party has caused gross
injustice to post-poll coalition of Mr. Giduga and Mr Ka’age who could form a legitimate
legislative alliance but were not invited to test the floor for majority.
[3.2.1.1] Decision of Governor is not reasonable
In casu, there was no material evidence that post-poll alliance cannot be formed, it was just
Governor’s ipse dixit that post-poll alliance is not envisaged in the text of the constitution. The
action which results in preventing a political party from staking claim to form a Government
after election, on such fanciful assumptions, if allowed to stand, would be destructive of the
democratic fabric. 316 In casu, actions of Governor are irrational and unreasonable, without any
concrete evidence or cogent material and based on mere ipse dixit and, thus, not sustainable in
law. Ms. Bulbul invited Ms Azhilu to form the government, since the text of the constitution
as per him was clear and post-poll was not envisaged.317 Decision of inviting Ms. Azhilu to
form the government 318 suffered from serious legal and factual infirmities and thus needs to be
reviewed and set aside.
[3.2.1.2] Governor is involved in Political hues
In case of B.P. Singhal v. Union of India,319 Court observed that executive head of state,
governor are expected to be apolitical or politically inactive. They owe their allegiance and
loyalty to the constitution and not to any political party and should purely discharge their
constitutional obligations. 320 Duty of the governor is not to try to form a government but see
whether it is formed or not. He had look as to which party or combination that commands the
widest support in the Assembly.
In casu, Ms Bulbul interpreted the text of the constitution literally and gave it a narrow
meaning and did not allow formation of post-poll alliance when party of Mr. Giduga and Mr.
Ka’age were ready to prove their majority within the stipulated time but she favoured Ms.
Azhilu and led her sworn in as CM of the state. The actions of Governor cannot refer as bona
fide because she intended to prevent post-poll coalition party of Mr. Giduga and Mr. Ka’age to
stake claim for formation of the Government. She should have explored all genuine attempt
which helps in installation of a popular Government, whichever be the political party.
[3.2.2] Judicial review over Political question
316
S.R. Bommai & Ors. v. Union of India & Ors, AIR 1990 Karnataka 5 (India).
317
Moot Proposition, ¶28
318
319
(2010) 6 SCC 331 (India).
320
Id.
41
In case of Madhav Rao Scindia v. UOI,321 Court held that there is nothing like a political power
under our constitution in the matter of relationship between the executive and citizens. Court
cannot move away from the duty merely because a question has a political complexion, if issue
is of constitution determination, 322 Court should not shrink from its duty of performing its
function.323 In case a question arises whether an authority under the constitution has acted
within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed,
it is constitutional obligation to do so.324
[3.3] ROLE OF A GOVERNOR
Governor has to assess and appraise the constitutional functionary and has to discharge his
constitutional functions his individual discretion. 325 He is bestowed with the independence to
rise above the day-to-day politics and override compulsions either emanating from the central
system or the state system.326 He is expected to conduct himself more firmly, cautiously and
circumspectly. 327
In case of Rameshwar Prasad & Ors v. Union of India & Anr,328 Court held that Governor
while going through the process of selection should select a leader who in his judgment is most
likely to command a majority in the Assembly. He is charged with the duty to preserve, protect
and defend the Constitution and also preserve democracy and not to permit the 'canker' of
political defections to tear into the vitals of the Indian democracy. 329
[3.3.1] Governor’s role in Hung Assembly
Hung assembly is a situation when no single party or any pre-poll alliance is able to achieve
the majority in the house, which leads to post-poll alliance formation. 330 And if such a situation
arises where no political party or coalition of parties or group secures majority and no political
party is able to form stable Government. It would be a case of failure of constitutional
machinery as held in S.R. Bommai v. Union of India.331
321
Madhav Rao Scindia v. UOI, AIR 1971 SC 530 (India).
322
State of Rajasthan v. UOI, AIR 1977 SC 1361 (India).
323
PUCL v. UOI, (2003) 4 SCC 399 (India). See also, State of Rajasthan v. UOI, (India).
324
325
Supra note 308.
326
The President of India Dr. A.P.J. Abdul Kalam, Press conference, June 2005.
327
Rameshwar Prasad & Ors v. Union of India & Anr, 005 (7) SCC 157 (India).
328
Id.
329
Supra note 327.
330
What is a hung assembly? How is a government formed in case of a hung assembly?, INDIA LEGAL, Dec 2019
https://www.indialegallive.com/is-that-legal-news/hung-assembly-government-formed-case-hung-assembly/
(last visited on Sept. 10, 2021).
331
Supra note 308 at ¶153.
42
As noted in case of Rameshwar Prasad & Ors vs Union of India & Anr,332 if there
happens to be a fractured mandate, then the Sarkaria Commission recommends an elaborate
step-by-step approach, which mentions that the Governor should select a leader who, in his
judgement, is most likely to command a majority in the Assembly. 333
In casu, no party had gone past the half way mark, 334 and thus situation of hung
assembly was witnessed by the state.
[3.3.1.1] Order of calling parties to prove majority was not followed by the Governor
The order of preference so suggested shows that firstly, pre-poll alliance has to be called,
followed by single largest party followed by a post-electoral coalition of parties, with all the
partners in the coalition joining the Government and lastly a post-electoral alliance of parties,
with some of the parties in the alliance forming the Government and the remaining parties,
including "independents" supporting the Government from outside. 335 The results were as
follows:336
(a) GRP- 132 seats (b) SBP- 120 seats (c) PPS- 38 seats (d) Independents- 10 seats
In the present case, as no party could past the half-way mark337 and there was no pre-
poll coalition. However, Mr. Giduga and Mr. Ka’age announced that they have formed a post-
poll alliance and they passed the half way mark and were ready to prove their majority. 338 And
as per the recommendations of Sarkaria commission, single largest party followed by a post-
electoral coalition of parties has to be considered. Thus, if single party could not past the half-
way mark, post-poll alliance was to be considered. Discretionary power so granted by Article
163 is misused by the governor invite the leader of the single largest party, even though
majority was not attained by it and a post poll alliance was there who could prove their majority
on the floor.
As noted in Nabam Rebia case, 2016,339 actions of governor cannot be fanciful; they
should be tempered by caution and should not favour a particular political party. In present
case, the decision making by the governor, by literally interpreting the text of constitutional, is
pretence, so that post-poll alliance cannot be formed.
332
Id.
333
Id.
334
335
Para 4.11.04, Sarkaria Commission Report.
336
337
338
339
Supra note 327.
43
[3.4] ARTICLE 361 IMMUNITY CANNOT BE CLAIMED BY THE GOVERNOR

The Governor of a State enjoys a special privilege due to which he isn’t 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 and performance of those powers and
duties. 340The immunity so granted by law of the land does not bar the challenge that may be
made to their actions. If something is mala fide or unreasonable, Governments cannot urge that
the same cannot be satisfactorily answered because of the immunity granted. 341
In case of S.K Saxena v. Governor of U.P,342 actions of governor were challenged and
were judicially reviewed. Relying over case of S.R. Bommai v. Union of India,343 it is observed
that the actions of the Governor344 are subject to judicial review.345 Also to mention that the
proviso of Article 361 makes it clear that there is no bar to the judicial writs as are mentioned
in Art 226.346 Action of executive head is not personally amenable to the process of the Court,
it cannot be said that his acts purporting to be done in pursuance of the constitution are beyond
the scrutiny of the Court.347 When mala fide or allegations of being unreasonable are put they
are required to meet them and cannot claim the protection of Article 361 of the Constitution.348
340
INDIA CONST. art. 361.
341
Rameshwar Prasad (IV) v. Union of India, 2005 (7) SCC 157 (India).
342
S.K Saxena v. Governor of U.P., (1987) Supp. SCC 151 (India).
343
Supra note 316.
344
Venkateswara Rao v. Government of A.P., 1966 AIR 828 (India).
345
State of Kerala v. The General Manager, 1976 AIR 2538 (India).
346
10 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 3610 (8th ed. 2014) at p. 2203.
347
Karkare, G.D v. Shevde, T.L. AIR 1952 Nag. 330; Lakman Singh v. Rajpramukh, AIR 1953 MB 54.
348
K.A. Malhialagan v. The Governor of Madras, AIR 1973 Mad 198 (India).
44
PRAYER FOR RELIEF
Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities
cited, it is most humbly prayed before this Hon’ble Court, that it may be pleased to:
1. Declare that the Gulmohar (Promotion and Protection of Gulmohari) Act, 2021 is
constitutionally invalid.
2. Declare that the 2020 amendment to the Constitution of Sapota violates the basic
structure of the Sapota Constitution.
3. Direct the Governor of Gulmohar to invite the post-poll alliance of Mr. Giduga and Mr.
Ka’age to form the Government.
4. Also, pass any other relief that this Hon’ble Court may be pleased to grant in favour of
the applicant in the interest of justice, equity and good conscience, all of which is
respectfully submitted.
And for this act of kindness the petitioners as are duty bound shall ever pray.
DATE: 12/09/2021
PLACE: High Court of Gulmohar
(S/d)
(Counsels for the Applicant)
45

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“14TH NALSAR JUSTICE B.R.

SAWHNY MEMORIAL MOOT COURT COMPETITION 2021” 54A

“14TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT

BEFORE THE HON’BLE HIGH COURT OF GULMOHAR

MR. GIDUGA..................................................................................................... Applicant

STATE OF GULMOHAR........................................................................................... Respondent

MR. GIDUGA.................................................................................................. Applicant

UNION OF SAPOTA.................................................................................................. Respondent

Written Submissions on behalf of the Applicant

Counsels for Applicant

1.1. IMPERMISSIBLE MANDATE ON PRIVATE SECTOR TO EMPLOY NATIVE GULMOHARIS. ------

1.2.2.2. The horizontal reservation is unreasonable. -------------------------21-22

STRUCTURE OF THE SAPOTA CONSTITUTION? --------------------------------------------29-38

2.1. THE AMENDMENT DESTRUCTS THE SANCTITY OF PARLIAMENTARY DEMOCRACY. –30-33

2.2.1. Freedom of expression ensures individual autonomy-----------------------------34

3.1.TEXT OF CONSTITUTIONAL AMENDMENT DOES NOT EXPRESSLY OR IMPLIEDLY PROHIBITS

3.1.1 Liberal Interpretation of constitutional text---------------------------------------38-39

S. NO. ABBREVIATION MEANING

1. The Constitution of India, 1950.

1. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (India)………………..............14

27. Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (India)………….………………….. 26,30

1. 2 G. V. Mavalankar, “The Office of Speaker”, JOURNAL OF PARLIAMENTARY INFORMATION,

PROLOGUE: The Social Democratic Republic of Sapota (hereinafter Sapota) is a Union of

CONTROVERSIAL BILL IN LEGISLATURE OF GULMOHAR: The State of Gulmohar, one of the

226. Power of High Courts to issue certain writs

1. WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI) ACT, 2021

2. WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC

1. WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF

to be looked into.188 Where a constitutional provision evinces a specific intent to exclude

2. WHETHER THE CONSTITUTION (THIRTY SIXTY) AMENDMENT ACT, 2020

[2.1] THE AMENDMENT DESTRUCTS THE SANCTITY OF PARLIAMENTARY DEMOCRACY

democratic process.230 By curtailing a parliamentarian’s discretion in voting, the provision231

[2.1.4] Disturbs balance between rights of members and their party

[3.4] ARTICLE 361 IMMUNITY CANNOT BE CLAIMED BY THE GOVERNOR

PRAYER FOR RELIEF

PLACE: High Court of Gulmohar

(Counsels for the Applicant)

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