4th RGNUL National Moot Court Competition, 2015: Semifinalists - Appellants

4th RGNUL National Moot Court Competition, 2015
4TH RGNUL NATIONAL MOOT COURT COMPETITION, 2015
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IN THE FEDERAL COURT OF HINDISTAN

Petition No. ______of 2015
(Art. 131 of the Constitution of Hindistan, 1950 read with Order XV, Rule 1, Federal Court
Rules, 2013)
Province of GatochPetitioner
VERSUS
Federation of Hindistan..Respondent
Petition No.______ of 2015
Rules, 2013)
Mr. Champak KhangotraPetitioner
VERSUS
Petition No.______ of 2015
Rules, 2013)
Mr. Somesh HaiderPetitioner
VERSUS
MOST RESPECTFULLY SUBMITTED,

COUNSELS APPEARING ON BEHALF OF THE PETITIONERS.
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TABLE OF CONTENTS
List of Abbreviations ................................................................................................................. 4
Index of Authorities ................................................................................................................... 5
Statement of Jurisdiction............................................................................................................ 8
Statement of Facts ...................................................................................................................... 9
Issues Raised ............................................................................................................................ 11
Summary of Arguments ........................................................................................................... 12
ARGUMENTS ADVANCED ................................................................................................. 14
I. THE PROVINCIAL LEGISLATURE HAD THE LEGISLATIVE COMPETENCE TO ENACT THE
GATOCH KORMI SHRINES MANAGEMENT ACT, 2014. ...................................................... 14
[A]. The 2014 Act is within the purview of the State List. ............................................ 14
[B]. The 2014 Act is, in pith and substance, a legislation dealing with incorporation and
regulation of GKSMB. ..................................................................................................... 15
[C]. The nature of encroachment of the 2014 Act upon the powers of KSMB is only
incidental.......................................................................................................................... 17
II. THE GOVERNOR HAD DISCRETION IN RESERVING THE BILL FOR THE ASSENT OF THE
PRESIDENT AND THE FEDERAL GOVERNMENT HAD
NO
COMPETENCE
TO
DIRECT THE
GOVERNOR IN THIS REGARD .............................................................................................. 17

[A]. The Governor had discretion in the reservation of the bill in question for the assent
of the President. ............................................................................................................... 17
[B]. The Federal Government was not competent to issue directions to the Governor to
reserve the bill for the assent of the President. ................................................................ 20
III. THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE
PROVINCIAL GOVERNMENT
TO
REFRAIN
FROM NOTIFYING
THE DATE
OF
COMMENCEMENT OF AN ACT PASSED BY THE STATE LEGISLATURE. .............................. 21

[A]
Such power cannot be exercised by the Federal Government in light of the lack of
an existing Federal law on the subject. ........................................................................... 21
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[B]. This action amounts to a violation of the principle of federalism enshrined in the
constitution....................................................................................................................... 22
IV. REMOVAL OF THE GOVERNOR WAS UNCONSTITUTIONAL. ........................................ 23
[A]. The removal is against Federal principles. ........................................................... 23
[B]. The exercise of pleasure under Art. 156(1) was arbitrary .................................... 24
V. DISMISSAL OF THE GOVERNMENT OF GATOCH WAS UNCONSTITUTIONAL. ................ 26
[A]. The Government of Gatoch was dismissed without following requisite procedure
26
[B]. The Government of Gatoch was dismissed with a mala fide intention .................. 27
PRAYER .................................................................................................................................. 29
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LIST OF ABBREVIATIONS
Paragraph
A.P.
Andhra Pradesh
AIHC
All India High Court Cases
AIR
All India Reporter
Art.
Article
Cal
Calcutta
cl.
clause
ed.
Edition
FCR
Federal Court Reports
GKSMB
Gatoch Kormi Shrines Management Board
No.
Number
Pat
Patna
PC
Privy Council
SC
Supreme Court
SCC
Supreme Court Cases
Sec.
Section
v.
Versus
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INDEX OF AUTHORITIES
I. CASES
1. A.G. Saskatchewan v. A.G. Canada, (1949) A.C. 110.
2. A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
3. A.K. Roy v. Union of India, A.I.R. 1982 S.C. 710.
4. Ashok v. Chancellor, Kerala Veterinary and Animal Sciences University, (2011) S.C.C.
3515.
5. Association Of Leasing & Financial Service Companies v Union Of India, (2011) 2
S.C.C. 352.
6. Asst. Commr. Of Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd.,
A.I.R. 1970 S.C. 169.
7. Azad v. State of Assam, A.I.R. 1958 A.P. 619.
8. B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331.
9. Biman Chandra Bose v. H.C. Mukherjee, A.I.R. 1952 Cal 799.
10. Board of Revenue v. Jhaver, A.I.R. 1968 S.C. 59.
11. Brij Mohan Lal v. Union of India, (2012) 6 S.C.C. 502.
12. Chaturbhai M. Patel v Union of India, A.I.R. 1960 S.C. 424.
13. Devji Vallabhai Tandel v. Administrator, A.I.R. 1982 S.C. 1029.
14. Dharam Dutt v. Union of India, A.I.R. 2004 S.C. 1295.
15. Elel Hotels and Investments Ltd. v. Union of India, A.I.R. 1990 S.C. 1664.
16. Gallaghar v. Lymn, (1937) A.C. 863 (870).
17. Govind Anantrao Upadhya v. State of Maharashtra, A.I.H.C. 2001 Bom 1972.
18. Gullapalli Nageswara Rao v. A.P. State Road Transport Corpn., A.I.R. 1959 S.C. 308.
19. Hargovind Pant v. Dr.Raghukul Tilak, A.I.R. 1979 S.C. 1109.
20. Harla v. State of Rajasthan, A.I.R. 1951 S.C. 467.
21. Hoechst Pharmaceuticals v. State of Bihar, A.I.R. 1983 S.C. 1019.
22. I.C. Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643.
23. India Cements Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 12.
24. Iswari Khetan Mills v. State of U.P., A.I.R. 1980 S.C. 1955.
25. Jay Engineering Works v. State of West Bengal, A.I.R 1968 Cal 407.
26. Jayantilal Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648.
27. Joshi v. Ajit Mills, Ahmedabad, A.I.R. 1977 S.C. 2279.
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28. KC Gajapati Narayan Deo v. State of Orissa, A.I.R. 1953 S.C. 375.
29. Kesavananda Bharati v. Union of India, A.I.R. 1973 S.C. 1461.
30. Kishansing Tomar v. Municipal Corporation Of The City Of Ahmedabad, A.I.R. 2007
S.C. 269.
31. Kishori v. The King, (1950) F.C.R. 650 (653).
32. KSE Board v. Indian Alumminium Company, A.I.R. 1976 S.C. 1031.
33. Kuldip Nayar v. Union of India, A.I.R. 2006 S.C. 3127.
34. Manoj Narula v. Union of India, (2014) 9 S.C.C. 1.
35. Om Prakash Bhatt v State of Uttar Pradesh, 1996 Indlaw S.C. 1077.
36. Pankaj Jain Agencies v. Union of India, A.I.R. 1995 S.C. 360.
37. Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, [1947] F.C.R. 28.
38. Raja Jagannath Baksh Singh v. State of U.P., A.I.R. 1962 S.C. 1563.
39. Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980.
40. S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918.
41. Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192.
42. Satya Narain Shukla v. Union of India, A.I.R. 2006 S.C. 2511.
43. Second G.T.O., Mangalore v. DH Nazareth, A.I.R. 1970 S.C. 999.
44. Seth Banarsi Das v. W.T.O., Meerut, A.I.R. 1965 S.C. 1387.
45. Sharma Transport v. State of Andhra Pradesh, A.I.R. 2002 S.C. 322.
46. Shree Rajkot District Cooperative Milk Producers Union Ltd. v. Bhanubhai Labhubhai
Mehta, (2014) S.C.C. 1248.
47. Sita Ram Sharma v. State of Rajasthan, A.I.R. 1974 S.C. 1373.
48. Southern Pharmaceuticals and Chemicals v. State of Kerela, A.I.R. 1981 S.C. 1863.
49. State of Bombay v Narothamdas Jethabai, 1950 Indlaw S.C. 54.
50. State of Bombay v. Balsara, A.I.R. 1951 S.C. 318.
51. State of Karnataka v. Ranganatha Reddy, A.I.R. 1978 S.C. 251.
52. State of Rajasthan v. G. Chawla, A.I.R. 1959 S.C. 544.
53. State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361.
54. Sunderlal Patwa v. Union of India, A.I.R. 1993 M.P. 214.
55. Syed Gulzar Hussain v. Dewan Syed Ale Rasul Ali Khan, 2014 Indlaw SC 102.
56. The Automobile Transport (Rajasthan) Limited v. State of Rajasthan, A.I.R. 1962 S.C.
1406.
57. The Durgah Committee, Ajmer v. Syed Hussain Ali, A.I.R. 1961 S.C. 1402.
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58. Trustees Of H.E.H. Nizams Pilgrimage Money Trust, Hyderabad v. The Collector Of
Estate Duty, A.I.R. 1998 S.C. 2492.
59. Ujagar Prints v. Union of India, A.I.R. 1989 S.C. 516.
60. Union of India v. H.S. Dhillon, A.I.R. 1972 S.C. 1061.
61. Union of India v. Shah Goverdhan L. Kabra Teachers College, A.I.R. 2002 S.C. 3675.
62. United Provinces v. Aliqa Begum, A.I.R. 1941 P.C. 16.
63. Vedire Venkata Reddy v. Union of India, A.I.R 2004 A.P. 234
64. Vidyasagar Singh v. Krishana Ballabha Sahay, A.I.R. 1965 Pat 321.
II. STATUTES
1. PUNJAB REORGANISATION ACT, 1966.
2. THE CONSTITUTION OF INDIA, 1950.
III. BOOKS
1. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA (8th edn. 2010).
2. BLACKS LAW DICTIONARY (2nd edn. 1910).
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STATEMENT OF JURISDICTION
I. PETITION NO.______ OF 2015

The Petitioner has approached this Honourable Court under Article 131(a) of the Constitution
of Hindistan, 1950, that reads:
Subject to the provisions of this Constitution, the Federal Court shall, to the exclusion of any
other court, have original jurisdiction in any dispute:
(a) between the Government of Hindistan and one or more Provinces;
II. PETITION NO.______ OF 2015

III. PETITION NO.______ OF 2015

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STATEMENT OF FACTS
BACKGROUND
Hidamb is a province in the Federal Republic of Hindistan. Kormi, a religion, is a majority in
Hidamb, constituting 60% of its population. However, it is a minority in the Federal Republic
of Hindistan, constituting a mere 2% of the national population.
Upto 1925, the Mahants managed Kormi religious shrines, present across the country.
However, there were widespread allegations of corruption against them and it was also alleged
that they had registered the properties of Kormi Shrines in their own names. A movement was
then started by the Kormi community members to take over the control of Kormi shrines from
the Mahants, which consequently led to the enactment of the Kormi Shrines Act, 1925. This
Act provided for the management of Kormi Shrines through constitution of management
committees at the local level and a central board called Kormi Shrines Management Board
(KSMB). This board was given the power to control local committees and to bring the
management of a particular shrine under its direct control.
REORGANISATION OF HIDAMB
In 1966, the Province of Hidamb was reorganised by the Hidamb Province Reorganisation Act,
1966, and a new Province, Gatoch, was carved out of it. Section 72 of the Reorganisation Act
provided for the maintenance of status quo regarding the functioning of all inter-state body
corporates. However, it stated that these bodies would be amenable to the directions of the
Federal Government regarding their functioning, till the time other provisions of law are not
made in this regard. Per Sec. 72(3), these rules would be applicable to the Kormi Shrine
Management Board.
THE GATOCH KORMI SHRINES MANAGEMENT ACT
After reorganisation, the KSMB had effective control over the management of Kormi Shrines
in Gatoch. However, there were complaints about the lack of representation of Kormis from
Gatoch on the Board, leading to their grievances not being taken care of. Addressing the
demand of its Kormis, on May 10, 2014, the Provincial Legislature of Gatoch enacted the
Gatoch Kormi Shrines Management Act, 2014 (GKSM Act), which created an independent
body, Gatoch Kormi Shrines Management Board (GKSMB) to administer Kormi Shrines in
Gatoch. Similar laws existed in other Provinces for the management of their Kormi Shrines.
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NATIONAL KORMI SHRINES MANAGEMENT BILL

Backed by the demand of three provinces, a registered society, the Kormi Intellectuals Forum
(KIF), started a movement calling for a national level body to administer all Kormi Shrines in
Hindistan. Accordingly, the House of People of the Federal legislature passed a Bill, National
Kormi Shrines Management Bill, 2014, on May 16, 2014, to create a national level body for
the regulation of all Kormi shrines in Hindistan, including those in Hidamb and Gatoch.
However, before the bill could be passed by the Council of States, the House of People was
dissolved on May 18, 2014, and a new government came to power at the federal level.
FEDERAL GOVERNMENTS DIRECTIONS TO THE GOVERNOR
On June 10, 2014, the new federal government directed the Governor, Mr. Champak
Khangotra, to not give his assent to the bill as it was in the process of enacting a national law
on the subject and on account of reports of communal violence in Hidamb. Subsequently, on
June 16, 2014, they wrote a letter to the Governor, directing him to reserve the bill for the
Presidents assent. However, on June 18, 2014, the Governor gave his assent to the Bill. The
Act was to become applicable from any such date as may be notified by the Gatoch Government
for its commencement. On June 30, 2014, the Governor was removed from his office by the
President of Hindistan and a new Governor was appointed. On July 2, 2014, the Federal
Government directed the Gatoch Government to refrain from notifying the date of
commencement of the Act.
IMPOSITION OF PRESIDENTS RULE IN GATOCH
Elections to municipalities had not been held in Gatoch, despite their tenure having ended on
January 1, 2014. The Governor submitted a report to the Federal Government on February 1,
2014, recommending the dismissal of the Gatoch Government owing to a failure of its
constitutional machinery due to a failure to conduct municipal elections before the expiry of
their tenure. On April 15, 2014, the Federal Government wrote a letter to the Provincial
Government, directing them to conduct municipal elections immediately. The Provincial
government replied that they would do so as early as possible, but needed time to prepare.
However, elections were not conducted till date and based on the Governors report, the
Government of Gatoch was dismissed on October 10, 2014 by a Presidential Proclamation, and
Presidents Rule was imposed with immediate effect. The House of People and the Council of
States approved the Proclamation on November 25, 2014 and November 28, 2014 respectively.
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ISSUES RAISED
I.
WHETHER THE PROVINCIAL GOVERNMENT OF GATOCH HAS THE LEGISLATIVE COMPETENCE TO
ENACT THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014?
II.
WHETHER THE GOVERNOR HAS DISCRETION IN RESERVING A BILL FOR THE ASSENT OF THE
PRESIDENT AND WHETHER THE FEDERAL GOVERNMENT IS COMPETENT TO DIRECT THE
GOVERNOR TO RESERVE THE BILL FOR PRESIDENTIAL ASSENT?
III.
WHETHER THE FEDERAL GOVERNMENT IS COMPETENT TO ISSUE DIRECTIONS TO THE
PROVINCIAL GOVERNMENT OF GATOCH TO REFRAIN FROM NOTIFYING THE DATE OF
COMMENCEMENT OF AN ACT PASSED BY THE PROVINCIAL LEGISLATURE?
IV.
WHETHER THE REMOVAL OF THE GOVERNOR IS AGAINST FEDERAL PRINCIPLES AND
UNCONSTITUTIONAL?
V.
WHETHER THE DISMISSAL OF THE GOVERNMENT OF GATOCH WAS WITHOUT FOLLOWING
REQUISITE PROCEDURE AND WITH MALA FIDE INTENTIONS?
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SUMMARY OF ARGUMENTS
I. THE PROVINCIAL LEGISLATURE
OF
GATOCH
HAD THE LEGISLATIVE COMPETENCE TO
ENACT THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014.
The Provincial Legislature of Gatoch is empowered to legislate upon matters to do with the
maintenance and administration of Kormi Shrines in Gatoch per entries 7 and 32 of the State
List. The legislation in question (GKSMA) is, in its pith and substance, a legislation that deals
with the maintenance and administration of Kormi Shrines in Gatoch. Therefore, any
encroachment upon the functioning of the Kormi Shrines Management Board, an inter-state
body corporate, is only incidental and ancillary to the main purpose of the legislation.
Therefore, this cannot be a reason to remove it from the legislative reach of the Provincial
Legislature.
II. THE GOVERNOR HAD DISCRETION IN CHOOSING TO RESERVE THE BILL FOR THE ASSENT
OF THE PRESIDENT AND THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO DIRECT HIM
IN THIS REGARD.
The office of the Governor is an independent Constitutional office. The Governor is required
to exercise his personal discretion in choosing to reserve a bill for the assent of the President.
His powers under Art. 200 of the Constitution must also be interpreted in this manner.
Notwithstanding the need for discretion in certain cases, the Governor is typically bound by
the advice of his Council of Ministers in the exercise of his executive functions. However, there
are no Constitutional provisions that sanction such an interaction between the Governor and
the Union Government. It has been held that the Governor holds his office independent from
the Union Government and is not amenable to directions given by them. Therefore, he was not
bound by the directions of the Federal Government in the present case and could exercise his
discretion.
III. THE FEDERAL GOVERNMENT
WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE
PROVINCIAL GOVERNMENT TO NOT NOTIFY THE DATE OF COMMENCEMENT OF THE ACT.
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Art. 257(1) of the Constitution allows the Union Government to issue directions to States
regarding the exercise of their executive power in cases where it may potentially derogate upon
the Union Governments exercise of power. However, this isnt possible in the present case
since there isnt an existing Federal law on the matter of the management and administration
of Kormi shrines in Hindistan. Additionally, the spirit of federalism, which forms a part of the
basic structure of the Constitution, is violated by this action of Federal interference in the
legitimate exercise of executive power by the Province of Gatoch.
IV. THE
DISMISSAL OF THE
GOVERNOR
IN THE PRESENT CASE WAS IN VIOLATION OF
FEDERAL PRINCIPLES AND WAS UNCONSTITUTIONAL.
Federal principles, which include maintenance of respect for the political independence of
States in the Union, are enshrined in the Constitution. The Governor forms an integral part of
the State Legislature and the executive power of the State is also vested in him. Thus, his
dismissal due to his non-compliance with directions from the Federal Government, which he
was not bound by, amounts to a violation of federal principles. Additionally, the exercise of
pleasure by the President, based on which the Governor holds his office, must be subject to the
fundamentals of Constitutionalism. In the present case, the removal of the Governor was
without any valid reason and in violation of the principle of audi alteram partem. This
constitutes an arbitrary exercise of power, and therefore renders it unconstitutional.
V. THE DISMISSAL OF THE GOVERNMENT OF GATOCH WAS WITHOUT FOLLOWING REQUISITE

PROCEDURE AND WAS WITH MALA FIDE INTENT.
The proclamation to dismiss a Government must be placed before both houses of Parliament
and must be approved by them. In the present case, the government was dismissed before the
proclamation was approved by both houses of parliament, and so requisite procedure was not
followed. The use of Art. 356 of the Constitution for political gains of the Federal Government
does amount to mala fide intent, as is seen in the present case. Additionally, there is a mala fide
intention that can be gleaned from the Governors report. This is because he wrongly posits
that the Provincial Government is bound to conduct municipal elections in the Province. Thus,
there is no failure of Constitutional machinery in Gatoch that sanctions the dismissal of the
Government in the present case.
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ARGUMENTS ADVANCED
At the outset, it is submitted that the Constitution of India is analogous to the Constitution of
Hindistan. Furthermore, the Kormi Shrines Act, 1925, is analogous to the Sikh Gurdwaras Act,
1925.1 Consequently, the Shiromani Gurudwaras Prabhandak Committee, established under
the Sikh Gurdwaras Act, is analogous to the Kormi Shrines Management Board in the present
case.
I. THE PROVINCIAL LEGISLATURE HAD THE LEGISLATIVE COMPETENCE TO ENACT THE
GATOCH KORMI SHRINES MANAGEMENT ACT, 2014.
1.
In the present case, the Province of Gatoch enacted the Gatoch Kormi Shrine
Management Act, 2014 (hereinafter 2014 Act). The same establishes a body corporate
Gatoch Kormi Shrine Management Board (hereinafter, GKSMB) the object of which is to
administer Kormi Shrines in the Province of Gatoch.2 Prior to such enactment, Kormi Shrines
in Gatoch were administered by Kormi Shrine Management Board (hereinafter, KSMB). It is
submitted that the Provincial Legislature of Gatoch had the legislative competence to enact the
2014 Act as: firstly, the 2014 Act is within the purview of List II in the Seventh Schedule
(hereinafter State List) [A]; secondly, the 2014 Act is, in pith and substance, a legislation
dealing with incorporation and regulation of GKSMB [B] and; thirdly the nature of
encroachment of the 2014 Act upon the powers of KSMB is only incidental [C].
[A].
2.
THE 2014 ACT IS WITHIN THE PURVIEW OF THE STATE LIST.
Per Art. 2453 and Art. 2464 of the Constitution, the Legislature of a State has exclusive
authority to enact legislations with respect to any of the matters enumerated in the State List.
3.
Under Entry 7 of the State List,5 a State legislature is competent to legislate on matters
related to places of pilgrimage. The impugned legislation in the present case is related to
management of Kormi Shrines. Shrines, as has been recognized on various occasions by the
Supreme Court, are places of pilgrimage.6 Furthermore, under Entry 32 of the State List,7 a
Factsheet, 18.
Factsheet, 7 line 8.
3
INDIA CONST. art. 245, cl. 1.
4
5
Pilgrimages, other than pilgrimages to places outside India.
6
The Durgah Committee, Ajmer v. Syed Hussain Ali, A.I.R. 1961 S.C. 1402; Om Prakash Bhatt v State of Uttar
Pradesh, 1996 Indlaw S.C. 1077; Trustees Of H.E.H. Nizams Pilgrimage Money Trust, Hyderabad v. The
Collector Of Estate Duty, A.I.R. 1998 S.C. 2492; Syed Gulzar Hussain v. Dewan Syed Ale Rasul Ali Khan, 2014
Indlaw SC 102.
7
Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities;
unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.
2
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legislature of a State can establish such body corporate that is out of the purview of List I in
the Seventh Schedule (hereinafter, Union List). Under Entry 448 of the Union List, only interstate corporations fall within the purview of the Union List. In the present case, the 2014 Act
establishes a body corporate (GKSMB) whose objects are confined to the Province of Gatoch.
Therefore, the GKSMB is not an inter-state body corporate.
4.
Therefore, it is submitted that the legislature of Province of Gatoch was entitled to enact
the 2014 Act as the same is well within the purview of the State List.
[B].
THE 2014 ACT IS, IN PITH AND SUBSTANCE, A LEGISLATION DEALING WITH
INCORPORATION AND REGULATION OF GKSMB.
5.
Prior to the enactment of the 2014 Act, Kormi Shrines in Gatoch were administered by
KSMB. KSMB was set up under Kormi Shrines Act, 1925. Later, under the Hidamb Province
Reorganisation Act, 1966, KSMB was declared to be an inter-state body.9 The power to
legislate upon regulation of any inter-state body rests with the Union Government.10 In light of
this, it may be argued that the 2014 Act is, in substance, an act with respect to KSMB and not
GKSMB. In order to account for the substance, emphasis must be laid on the doctrine of pith
and substance of an Act.
6.
In Ujagar Prints v. Union of India,11 it was held that the words with respect to in Art.
246 of the Constitution bring in the doctrine of pith and substance in the understanding of
application of legislative power. The phrase pith and substance means true nature and
character12 which is essentially different from its consequential effects. 13 The doctrine saves
a legislation from being questioned if it substantially falls within the legislative scope of the
legislature enacting it.14 The question of pith and substance arises when a Court is
ascertaining whether a particular legislation falls within one legislative list or another.15
Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to
one State, but not including universities.
9
HIDAMB PROVINCE REORGANISATION ACT, 1966, Sec. 72, cl. 3. See Factsheet, 6.
10
Para 3, Section I [A], Written Submissions.
11
Ujagar Prints v. Union of India, A.I.R. 1989 S.C. 516.
12
Gallagher v. Lynn, [1937] A.C. 863. See also Chaturbhai M. Patel v Union of India, A.I.R. 1960 S.C. 424.
13
Asst. Commr. Of Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd., A.I.R. 1970 S.C. 169. Union
of India v. Shah Goverdhan L. Kabra Teachers College, A.I.R. 2002 S.C. 3675.
14
Kishori v. The King, (1950) F.C.R. 650 (653). See also State of Bombay v. Balsara, A.I.R. 1951 S.C. 318;
Iswari Khetan Mills v. State of U.P., A.I.R. 1980 S.C .1955; State of Karnataka v. Ranganatha, A.I.R. 1978 S.C.
215; KSE Board v. Indian Alumminium Company, A.I.R. 1976 S.C. 1031.
15
United Provinces v. Aliqa Begum, A.I.R. 1941 P.C. 16. See also Union of India v. Shah Goverdhan L. Kabra
Teachers College, A.I.R. 2002 S.C. 3675.
8
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7.
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It is submitted that the 2014 Act is, in pith and substance, a legislation dealing with
incorporation and regulation of GKSMB, based on the following considerations:

a). Object of the Legislation:
The foremost consideration is the object of the legislation as opposed to its effects.16 The court
must examine the true intent of a legislation as its pith and substance to determine whether it
fits in one List or the other.17 In the present instance, the true legislative intent of the Provincial
Legislature of Gatoch was to gain control over Kormi Shrines in the Province of Gatoch. This
was because Kormis in Gatoch did not have adequate representation in KSMB.18 Thus, per its
pith and substance, it falls within the purview of the State List.
b). Means employed to achieve the object:
It must be determined that the means by which the object of the impugned law has been sought
to be achieved is within the legislative power of the legislature enacting it.19 In the present case,
the means by which the object (control over the Kormi Shrines within the territory of Gatoch)
was achieved was by establishing GKSMB. GKSMB is a body corporate established with the
objective of administering Kormi Shrines in Gatoch. Incorporation of such a body corporate
falls within the legislative ambit of Entry 32 of the State List.20
c). Subject Matter of the legislation:
In order to determine the authority of a legislature with respect to enacting a law the subject
matter of the legislation must be looked at.21 In the present case, the subject matter of the
2014 Act was the administration of Kormi Shrines in the Province of Gatoch. Such
administration falls well within the legislative domain of Entry 7 of the State List, as submitted
earlier.22 Hence, the subject matter of the 2014 Act is within Gatochs scope of legislation.23
16
Sita Ram Sharma v. State of Rajasthan, A.I.R. 1974 S.C. 1373. See also A.G. Saskatchewan v. A.G. Canada,
(1949) A.C.; 110. State of Karnataka v. Ranganatha Reddy, A.I.R. 1978 S.C. 251; Southern Pharmaceuticals and
Chemicals v. State of Kerela, A.I.R. 1981 S.C. 1863. Hoechst Pharmaceuticals v. State of Bihar, A.I.R. 1983 S.C.
1019.
17
India Cements Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 12.
18
Factsheet, 6, line 3.
19
Gallagher v. Lynn, (1937) A.C. 863 (870). See also KC Gajapati Narayan Deo v. State of Orissa, A.I.R. 1953
S.C. 375; Gullapalli Nageswara Rao v. A.P. State Road Transport Corpn., A.I.R. 1959 S.C. 308; Joshi v. Ajit
Mills, Ahmedabad, A.I.R. 1977 S.C. 2279.
20
Para 3, Section I [A], Written Submissions.
21
Supra note 13. See also 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 8700 (8th ed.
2010).
22
Section I[A], Written Submissions.
23
Part 3, Section I[A], Written Submissions.
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8.
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Thus, the pith and substance of the impugned legislation is incorporation and regulation
of GKSMB, and does not concern the KSMB.

[C].
THE NATURE OF ENCROACHMENT OF THE 2014 ACT UPON THE POWERS OF KSMB IS
ONLY INCIDENTAL.
9.
Admittedly, the 2014 Act encroaches upon the powers of KSMB. However, such
encroachment would not be enough to disqualify the legislative authority of the Provincial
Legislature of Gatoch. Having determined the pith and substance of the impugned legislation,
the doctrine of incidental and ancillary powers24 must be applied in order to determine its
scope. If it is found that for the proper and effective operation of its legitimate authority, it is
necessary for a Legislature to enact a law relating to ancillary matters, the Legislature is vested
with the power to do so, irrespective of whether or not these ancillary matters lie outside the
scope of its enumerated powers.25 Thus, it is submitted that any interference with the
functioning or regulation of KSMB, is merely an incidental encroachment on Entry 44 of the
Union List. Therefore, it does not qualify as a legitimate ground to question the legislative
competence of the Provincial Legislature of Gatoch in the present case.
II. THE GOVERNOR HAD DISCRETION IN RESERVING THE BILL FOR THE ASSENT OF THE
PRESIDENT AND THE FEDERAL GOVERNMENT HAD NO COMPETENCE TO DIRECT THE
GOVERNOR IN THIS REGARD
[A].
THE GOVERNOR HAD DISCRETION IN THE RESERVATION OF THE BILL IN QUESTION FOR
THE ASSENT OF THE PRESIDENT.
10.
In the present case, the Governor was directed by the Federal Government to reserve
the 2014 Act for the assent of the President vide a letter dated June 16, 2014.26 It is submitted
that the Governor was not bound by this advice. He was required to exercise his discretion in
this regard as: firstly, Art. 200 of the Constitution requires him to exercise his discretion in
making this decision (i); secondly, this discretion is necessary for the Governor to discharge
24
Supra note 14. See also Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, [1947] F.C.R. 28; State of
Bombay v. Narothamdas Jethabai, 1950 Indlaw S.C. 54; Board of Revenue v. Jhaver, A.I.R. 1968 S.C. 59;
Association Of Leasing & Financial Service Companies v. Union Of India, (2011) 2 S.C.C. 352.
25
8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 8703 (8th ed. 2010).
26
Factsheet, 10.
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his Constitutional role in the Province (ii) and; thirdly, the intention of the drafters of the
Constitution need not affect the interpretation of Art. 200 in the present case (iii).
(i)
Art. 200 of the Constitution requires the Governor to exercise his discretion.
Per Art. 200 of the Constitution,27 the Governor has the power to reserve a bill for the
11.
assent of the President. It is submitted that the Governor is required to take this decision based
on his individual judgment of the bill presented to him.
This view was upheld in Hoechst Pharmaceuticals v. State of Bihar.28 In this case, the
12.
Supreme Court specifically held that the Governor would be required to exercise his personal
discretion in choosing to reserve a bill presented to him for the assent of the President. The
court went on to hold that this power to reserve a bill, based on his individual judgment of it,
accorded to the Governor is non-justiciable. The rationale in this judgment was that the
Constitution allowed for the passing into law any bill that received the assent of the President
following its reservation by the Governor, even if there wasnt a pressing need for the same.
Thus, the exercise of this power by the Governor in his discretion would simply provide for an
additional check on legislative activities in the State.
13.
Therefore, it is submitted that the Governor was free to exercise his discretion in
choosing to reserve the 2014 Act for the assent of the President in the present case. He was
expected to take the decision based on his individual assessment of the bill presented to him,
and not directions issued by the Federal Government.
(ii)
This discretion is necessary for the Governor to fulfil his Constitutional Role
in the State.
14.
It is a widely accepted fact that the role of the Governor in a State includes playing the
role of an umpire in keeping a check on governance in a State in light of Constitutional

principles.29 It is submitted that a lack of discretion accorded to the Governor when deciding
to reserve a bill for the assent of the President is counter-productive in this regard. This is
because he would be barred from making an independent judgment with respect to the
Constitutionality of a bill presented to him. This would consequently impede upon his ability
to act as a checking mechanism on legislative and executive activities taking place in the State.
27
INDIA CONST. art. 200.

Hoechst Pharmaceuticals v. State of Bihar, A.I.R. 1983 S.C. 1019.
29
B.P. Singhal v. Union of India, (2010) 6 S.C.C. 33. See also 8 DURGA DAS BASU, COMMENTARY ON THE
CONSTITUTION OF INDIA, 6097 (8th ed. 2010).
28
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Thus, the Governor must be given discretion in making this decision in light of the
Constitutional role his office is designed to play.
(iii)
The intention of the framers of the Constitution need not affect the
interpretation of Art. 200 in the present case.
15.
Admittedly, records of debates in the Constituent Assembly reflect the intention of the
drafters of the Constitution to create a purely Constitutional office for the Governor, without
any administrative or discretionary power.30 However, it is submitted that courts have, in the
past, refused to allow the intent of the framers of the Constitution to colour their perception of
its provisions.31 Additionally, in A.K. Gopalan v. State of Madras,32 the Court held that it would
look at Constituent Assembly debates while interpreting a provision of the Constitution only
in cases of ambiguity in the said provision.
16.
In light of the above, it is submitted that there is no ambiguity in Art. 200 of the
Constitution of India. The words in the opinion of the Governor contained in Art. 200 clearly
indicate that the Governor is expected to form an independent opinion when determining
whether or not a bill potentially derogates upon the powers of a High Court. Also, he must
compulsorily reserve the bill in question for the assent of the President in such cases.
17.
However, in Govind Anantrao Upadhya v. State of Maharashtra,33 the court held that
this discretion would extend to the granting of assent to a bill passed by a State Legislature on
all matters contained in the State List. Furthermore, this would not be restricted to cases of a
bill potentially derogating upon the powers of a High Court. This decision was made based on
the idea that the Governor is required to act as an independent check on the executive and
legislative activities happening in a State. Scholarly opinion also supports the granting of such
discretion to the Governor.34
18.
In the present case, the subject matter of the 2014 Act (maintenance of Kormi Shrines
in Gatoch) falls within the purview of the State List.35 It is therefore submitted that the rationale
used in this case in interpreting Art. 200 of the Constitution should be followed, despite a
Statement of Dr. B.R.Ambedkar, CONSTITUENT ASSEMBLY DEBATES 455, If the Constitution is to remain in
principle the same as we intend it to be, the Governor of a State must be a purely Constitutional Governor, with
no administrative powers over the State.
31
I.C. Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643. See also The Automobile Transport (Rajasthan)
Limited v. State of Rajasthan, A.I.R. 1962 S.C. 1406.
32
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
33
Govind Anantrao Upadhya v. State of Maharashtra, A.I.H.C. 2001 Bom 1972.
34
DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 6138 (8th ed. 2010).
35
Section I, Written Submissions.
30
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contrary intention that can be gleaned from Constituent Assembly debates. Therefore, the
Governor had discretion in choosing to reserve the 2014 Act for the assent of the President.
[B].
THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE

GOVERNOR TO RESERVE THE BILL FOR THE ASSENT OF THE PRESIDENT.
19.
The Federal Government was not competent to direct the Governor of Gatoch to reserve
the 2014 Act for the assent of the President as: firstly, this interaction between the Federal
Government and the Governor is not constitutionally sanctioned (i) and; secondly, the
Governor is not amenable to directions from the Federal Government (ii).
(i)
Such an interaction between the Federal Government and the Governor is not
Constitutionally sanctioned.
20.
Art. 163 of the Constitution provides for the presence of a Council of Ministers at the
state level to aid and advice the Governor in the discharge of his functions.36 However, there
is no provision that provides for any such interaction between the Governor and the Central
Government. Also, the Constitution lacks mention of a provision where the Governor is
explicitly bound by the advice of the Central Government, along the lines of the advice of the
Election Commission of India being binding on the Governor when he acts under Art. 103(2)
of the Constitution.37 Furthermore, notwithstanding the need for discretion in certain cases,
only the advice of the State Council of Ministers is typically binding on the Governor in the
exercise of his executive functions.38 Thus, the Federal Governments actions were not
Constitutionally sanctioned in the present case.
(ii)
21.
The Governor is not amenable to directions from the Federal Government.

Admittedly, per Art. 156(1) of the Constitution,39 the Governor holds office during
the pleasure of the President. However, this pleasure is exercised by the President on the sole
advice of the Union Council of Ministers.40 Therefore, the Union Government maintains
effective control over the appointment and termination of a Governor.41
36

38
Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192, Azad v. State of Assam, A.I.R. 1958 A.P. 619.
Biman Chandra Bose v. H.C. Mukherjee, A.I.R. 1952 Cal 799. See also Vidyasagar Singh v. Krishana Ballabha
Sahay, A.I.R. 1965 Pat 321, Devji Vallabhai Tandel v. Administrator, A.I.R. 1982 S.C. 1029.
39
INDIA CONST. Art. 156, Cl. 1.
40
Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192.
41
B.P.Singhal v. Union of India, (2010) 6 S.C.C. 331. See also Satya Narain Shukla v. Union of India, A.I.R.
2006 S.C. 2511.
37
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However, in Hargovind Pant v. Dr. Raghukul Tilak,42 the court held that the office of the
Governor is a high Constitutional office, and that the Governor does not qualify as an employee
of the Central Government. It went on to hold that the Governor was not amenable to directions
from the Central Government, or accountable to them regarding the manner in which he
discharges his duties.43
22.
In the present case, Mr. Khangotra held the Office of the Governor of Gatoch in an
independent Constitutional capacity. Therefore, he was not amenable to the direction of the
Federal Government contained in the letter dated June 16, 2014, and was consequently not
required to reserve the bill in question for the assent of the President based on this direction.
III. THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE
PROVINCIAL GOVERNMENT TO REFRAIN FROM NOTIFYING THE DATE OF
COMMENCEMENT OF AN ACT PASSED BY THE STATE LEGISLATURE.
23.
Following the assent of the Governor to the 2014 Act, the Federal Government of
Hindistan directed the Government of Gatoch not to notify the date of commencement of the
Act vide a letter dated July 2, 2014.44 The notification of this law was a compulsory condition
precedent for it to come into force.45 In light of this, it is submitted that the Federal Government
was not competent to issue this direction as: firstly, such power cannot be exercised by the
Federal Government in light of the lack of an existing Federal law on the subject [A] and;
secondly, this action amounts to a violation of the principle of federalism enshrined in the
Constitution [B].
[A]
SUCH POWER CANNOT BE EXERCISED BY THE FEDERAL GOVERNMENT IN LIGHT OF THE

LACK OF AN EXISTING FEDERAL LAW ON THE SUBJECT.
24.
Per Art. 257(1) of the Constitution, the Union Government is competent to issue
directions to the States to ensure that they exercise their executive power in line with Union
laws. This power extends to any situation where the Union Government is of the opinion that
42
Hargovind Pant v. Dr.Raghukul Tilak, A.I.R. 1979 S.C. 1109.

See also Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980.
44
Factsheet, 11.
45
Harla v. State of Rajasthan, A.I.R. 1951 S.C. 467; Pankaj Jain Agencies v. Union of India, A.I.R. 1995 S.C.
360.
43
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independent State action would affect the exercise of its executive power.46 Furthermore, while
notification is theoretically a legislative activity, it is ordinarily carried out by States in the
exercise of their executive power.47 However, in Sharma Transport v. State of Andhra
Pradesh,48 the Court held that there was a need for an existing Union law on the matter for the
Union Government to issue directions to States.
25.
In the present case, the proposed national bill (National Kormi Shrines Management
Bill, 2014) was not passed by the Council of States of the Federal Parliament, since the
Assembly was dissolved before it could be passed.49 Therefore, there was no existing federal
law on the subject of the regulation of Kormi Shrines in Hindistan. Thus, it is submitted that
there was no basis for the Federal Government to issue directions regarding the manner in
which executive power is wielded by the Provincial Government in the present case. This is
because control over the exercise of executive power by the Province in this regard had not
passed on to them. Therefore, the Federal Government was not competent to issue the direction
contained in the letter dated July 2, 2014.
[B].
THIS ACTION AMOUNTS TO A VIOLATION OF THE PRINCIPLE OF FEDERALISM ENSHRINED

IN THE CONSTITUTION.
26.
In Kesavananda Bharti v. Union of India,50 it was held that federalism forms a part of
the Basic Structure of the Constitution of India. Furthermore, in S.R. Bommai v. Union of
India,51 the court observed that federalism in the Indian constitutional is a concept that unites
separate States into a Union without sacrificing their individual political integrity.
27.
As submitted earlier, notification of a law is ordinarily carried out by States in the
exercise of their executive power.52 In light of this, it is submitted that the act of the Federal
Government in the present case does amount to a violation of the principle of federalism. This
is because intervening and directing the Provincial Government with regards to a matter that it
normally does in the exercise of its independent executive power amounts to an invasion of the
46
Vedire Venkata Reddy v. Union of India, A.I.R 2004 A.P. 234.

Jayantilal Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648.
48
Sharma Transport v. State of Andhra Pradesh, A.I.R. 2002 S.C. 322. See also Jay Engineering Works v. State
of West Bengal, A.I.R 1968 Cal 407.
49
Factsheet, 9.
50
Kesavananda Bharati v. Union of India, A.I.R. 1973 S.C. 1461.
51
S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918.
52
Jayantilal Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648.
47
Page 22 of 29
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Provinces individual political integrity. Thus, the action of the Federal Government in the
present case is in opposition to the basic structure of the Constitution.
IV. REMOVAL OF THE GOVERNOR WAS UNCONSTITUTIONAL.

28.
The Governor of the Province of Gatoch, Mr. Champak Khangotra was removed from
his office on June 30, 2014.53 The Governor of a State holds office during the pleasure of the
President per the provisions of Art. 156(1) of the Constitution.54 It is submitted that the removal
of Mr. Khangotra under Art. 156(1) was unconstitutional as: firstly, it was against federal
principles [A] and; secondly, the exercise of pleasure under Art. 156 (1) was arbitrary [B].
[A].
29.
THE REMOVAL IS AGAINST FEDERAL PRINCIPLES.
Federal principles entail a division of the legislative and executive authority of the
Centre and the State.55 These federal principles are embodied in the Constitution56 and
constitute an integral part of its basic structure.57 It is submitted that in the present case, the
removal of Mr. Khangotra was against federal principles as: firstly, removal for noncompliance of the Federal Governments direction to not assent to the 2014 Act amounts to
interference with legislative authority of the province (i) and; secondly, in any case, Mr.
Khangotra was not bound by the Federal Governments directions (ii)
(i)
Removal for non-compliance of the Federal Governments direction of not

assenting to the 2014 Act amounts to interference with legislative authority of
the Province.
30.
Per Art. 74 of the Constitution, the President has to act in accordance with the advice
of his Council of Ministers.58 Therefore, the Presidents pleasure under Art. 156(1) can be
exercised only on the advice of the Union Council of Ministers. 59 The Union Council of
Ministers thus wields effective control over the tenure of the Governor.
53
INDIA CONST. art.156, cl. 1.
55
Statement of Dr. B.R.Ambedkar, CONSTITUENT ASSEMBLY DEBATES 976 (November 25, 1949).
56
See Kuldip Nayar v. Union of India, A.I.R. 2006 S.C. 3127.
57
Kesavananda Bharati v. Union of India, A.I.R. 1973 S.C. 1461.
58
INDIA CONST. art.74, cl. 1. See also Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192.
59
B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331.
54
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In the present case, the Federal Government had directed Mr. Khangotra not to assent to the
2014 Act.60 However, as submitted earlier, Mr. Khangotra had the legislative power to choose
to assent to the 2014 Act passed on May 10, 2014.61 Therefore, he gave his assent to the bill
on 18th June, 2014,62 subsequent to which he was removed from office on 30th June, 2014.63 It
is submitted that in the present case, the removal of Mr. Khangotra was on account of his failure
to comply with the direction of the Federal Government not to assent to the 2014 Act.64 It is
therefore submitted that the Federal Government indirectly interfered with the legislative
authority of Gatoch, thereby violating federal principles.
(ii)
In any case, Mr. Khangotra is not Constitutionally bound by the Federal

Governments directions.
32.
In the present case, the Federal Government had directed Mr. Khangotra not to give
assent to the 2014 Act. However, in Hargovind Pant v. Dr. Raghukul Tilak,65 a Constitution
Bench held that the Governor of a State is not amenable to the directions of the Central
Government. Therefore, Mr. Khangotra is not bound by such a direction issued by the Federal
Government. Thus, his removal for failure to comply with a Federal Government direction that
he was not bound by also amounts to a violation of federal principles.
[B].
33.
THE EXERCISE OF PLEASURE UNDER ART. 156(1) WAS ARBITRARY
The exercise of pleasure of the President under Art. 156(1) is not absolute, but subject
to fundamentals of constitutionalism which prohibit arbitrary action.66 Moreover, in cases

where prima facie arbitrariness can be shown, the Federal Government can be called to show
the material forming the basis for removal.67 It is submitted that the withdrawal of pleasure for
removal of Mr. Khangotra was prima facie arbitrary as: firstly, there was no valid reason for
his removal (i) and; secondly, his removal was in violation of the principle of audi alteram
partem (ii).
60
Factsheet, 11.
Factsheet, 8 line 7. See also Section II[A][i], Written Submissions.
62
63
64
65
Hargovind Pant v. Dr. Raghukul Tilak, A.I.R. 1979 S.C. 1109.
66
B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331. See also Brij Mohan Lal v. Union of India, (2012) 6 S.C.C.
502; Manoj Narula v. Union of India, (2014) 9 S.C.C. 1; Shree Rajkot District Cooperative Milk Producers Union
Ltd. v. Bhanubhai Labhubhai Mehta, (2014) S.C.C. 1248; Ashok v. Chancellor, Kerala Veterinary and Animal
Sciences University,(2011) S.C.C. 3515.
67
B.P.Singhal v. Union of India, (2010) 6 S.C.C. 331.
61
Page 24 of 29

(i)
34.
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There was no valid reason for the removal of Mr. Khangotra

It has been held that the validity of a reason for removal of a Governor depends upon
the facts of the case.68 However, physical and mental incapacity, corruption and behavior
unbecoming of a Governor, have been commonly accepted as valid grounds for removal.69
In the present case, Mr. Khangotras actions clearly do not fall under any of these
35.
accepted grounds. Moreover, in the present case, removal on ground of non-compliance with
Federal Governments directions is also unconstitutional.70 Therefore, there was no valid
ground for his removal. This absence of any valid reason for removal of Mr. Khangotra
establishes a prima facie case of arbitrariness and therefore renders his removal
unconstitutional.
(ii)
Removal of Mr. Khangotra was in violation of the principle of audi alteram

partem.
36.
Audi alteram partem is a principle of natural justice that requires that no one should be
condemned unheard.71 It has been held that the rules of natural justice can only be applied if
the law is silent on the concerned matter and the principle is not in contravention of the
provisions of the existing law. However, the rules of natural justice are inapplicable if they are
by necessary implication, excluded by the law. 72
The provisions of Article 156 are silent about the application of the audi alteram partem rule.
37.
Moreover, the reading of such a principle into the article does not stand in contravention
of the provisions of any existing law. While the Patna High Court has held that in cases of
removal under Art. 156(1), the audi alteram partem rule does not apply,73 it is essential to note
that such a judgment is not binding on this Court. Therefore, the reading of the audi alteram
partem principle does not stand contrary to any provision of law that binds this Court.
38.
Furthermore, in Hargovind Pant v. Raghukul Tilak74, the office of the Governor has
been held to be a separate Constitutional office. However, there is a possibility that the
68
Id.
B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331. See also Shree Rajkot District Cooperative Milk Producers
Union Ltd. v. Bhanubhai Labhubhai Mehta, (2014) S.C.C. 1248.
70
Section II [B], Written Submissions.
71
BLACKS LAW DICTIONARY 170 (2nd edn., 1910).
72
Raj Kishore Prasad Jaiswal v. Subak Narain, A.I.R. 1959 Pat 89.
73
Indian Muslim League v. Union of India, A.I.R. 1998 Pat. 156.
74
Hargovind Pant v. Dr. Raghukul Tilak, A.I.R. 1979 S.C. 1109.
69
Page 25 of 29
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Governor is removed from his office arbitrarily on account of misuse of the power under Art.
156. Therefore, it is submitted that in such a case, the exclusion of the principle of audi alteram
partem is not necessarily implied. This is because, the removal of the Governor without
granting him an opportunity to present his case could potentially dilute the Constitutional
independence and powers of the office.
39.
In the present instance, Mr. Champak Khangotra was removed from his office without
being given an opportunity to be heard. His removal was thus in clear violation of the principle
of audi alteram partem and was therefore arbitrary.
V. DISMISSAL OF THE GOVERNMENT OF GATOCH WAS UNCONSTITUTIONAL.

40.
In the present case, the Government of Gatoch was dismissed on October 10, 2014 by
a Presidential Proclamation and Presidents rule was imposed.75 Under Art. 356(1) of the
Constitution, Presidents rule can be imposed in a State through a proclamation if the President
is satisfied that a situation has arisen in which the State Government cannot work in accordance
with the provisions of the Constitution.76 It is submitted that the dismissal of the Government
of Gatoch was unconstitutional as: firstly, it was dismissed without following requisite
procedure [A] and; secondly, it was dismissed with a mala fide intention [B].
[A].
THE GOVERNMENT OF GATOCH WAS DISMISSED WITHOUT FOLLOWING REQUISITE

PROCEDURE
41.
The power to dismiss the State Government lies with the Governor as the ministers of
State Government hold office during his pleasure.77 However, when the President assumes the
powers of the Governor under Art. 365(1)(a) of the Constitution, this power is automatically
transferred to the President.78 Moreover, a Proclamation issued under Art. 356 has to be laid
before each House of the Parliament within two months of the date of issue as per the provisions
of Art. 356(3).79 In S.R. Bommai v. Union of India,80 it was held that the State Government
could be dismissed through a proclamation under Art. 356(1)(a) only after both the Houses of
75
Factsheet, 14 line 1-2.

77
78
State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361.
79
80
76
Page 26 of 29
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Parliament have approved such a proclamation. Until such approval is received, the President
could only suspend the Legislative Assembly under Art. 356(1)(c).
42.
In the present instance, the Government of Gatoch was dismissed by the President under
Art. 356(1)(a) on October 10, 2014.81 However, both the Houses of the Parliament approved
the Proclamation only by November 28, 2014.82 Therefore, it is clear that the President
dismissed the Government of Gatoch before both the Houses of the Parliament approved the
Proclamation. The dismissal of the Government of Gatoch under Art.356 was thus carried out
without following requisite procedure.
[B].
43.
THE GOVERNMENT OF GATOCH WAS DISMISSED WITH A MALA FIDE INTENTION
If the exercise of the power by the President under Art. 356 is found to be mala fide, it
amounts to no satisfaction at all in the eyes of the law. In such cases, the essential requirement
of the satisfaction of the President is not fulfilled. Such a Proclamation issued under Art. 356,
therefore, becomes amenable to judicial review.83 In the present case, it is submitted that the
dismissal of the Government of Gatoch was done with a mala fide intention as: firstly, it was
based on grounds extraneous to the purpose of Art. 356 (i) and; secondly, the report submitted
by the Governor was misleading (ii).
(i)
Dismissal of the Government of Gatoch was based on grounds extraneous to

the purpose of Article 356.
44.
A Proclamation under Art. 356 can be said to be mala fide, if it is based on a ground
other than a breakdown of the Constitutional machinery of the State.84 Failure of Constitutional
machinery refers to a breakdown that creates a situation that cannot be remedied except by
invoking Art. 356 immediately.85 Furthermore, if the motivating factor for action under Art.
356(1) is political gain to the party in power at the Centre, it constitutes a ground extraneous
to the purpose of Art. 356.86
81
Factsheet, 15 line 1-3.
83
State of Rajasthan v. Union of India, A.I.R 1977 S.C. 1361; A.K. Roy v. Union of India, A.I.R. 1982 S.C. 710;
84
A.K. Roy v. Union of India, A.I.R. 1982 S.C. 710. See also State of Rajasthan v. Union of India, A.I.R 1977
S.C. 1361; S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918.
85
9 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 10973 (8th ed. 2010). See also Sunderlal
Patwa v. Union of India, A.I.R. 1993 M.P. 214.
86
82
Page 27 of 29

45.
|P-TC-07|
In the instant case, the Proclamation was issued by the Federal Government to appease
its coalition partners who were in power in the Province of Hidamb.87 Clearly, the motivation
behind such an action under Art. 356(1) was to yield political gains. Therefore, such action is
extraneous to the purpose of Art. 356. The Proclamation issued by the Federal Government can
thus be struck down as mala fide.
(ii)
46.
The report submitted by the Governor was misleading.

It is submitted that the report dated February 1, 2014,88 prepared by the Governor, Mr.
Champak Khangotra, was misleading. This is because it wrongly suggested that the task of
conducting the municipalities elections is the State Governments prerogative. In Rameshwar
Prasad v. Union of India,89 it was held that where the Governor misleads the Council of
Ministers, who advise the President to issue a Proclamation, it amounts to no satisfaction at all
under Art. 356.
47.
In the present case, Mr. Khangotra submitted that it is the duty of the Provincial
Government to conduct elections to the municipalities. However, according to Art. 243ZA of

the Constitution, the task of conducting the municipalities elections is that of the State Election
Commission, which is independent of the State Government.90 It is the State Election
Commissions mandate to ensure that the municipalities elections are conducted before the
expiry of their tenure.91
Therefore, Mr. Khangotra misled the Federal Government by submitting that the State
Government was responsible for the failure to conduct elections. Moreover, he also failed to
verify what he was stating in his report. Thus, it is submitted that there was a mala fide intention
on the part of the Governor.
87
89
Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980.
90
INDIA CONST. art. 243ZA, cl. 1. See also Kishansing Tomar v. Municipal Corporation of The City Of
Ahmedabad, A.I.R. 2007 S.C. 269.
91
Kishansing Tomar v. Municipal Corporation of The City Of Ahmedabad, A.I.R. 2007 S.C. 269.
of the Constitution under Art. 243U(1) and
88
Page 28 of 29
|P-TC-07|
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honourable Court may be pleased to adjudge and declare that:
I.
The Provincial Legislature of Gatoch had legislative competence to enact the

Gatoch Kormi Shrines Management Act, 2014.
II. The Governor had discretion in choosing to reserve the bill for the assent of the
President and the Federal Government was not competent to issue directions to the
Governor in this regard.
III. The Federal Government was not competent to issue directions to the Provincial
Government to refrain from notifying the date of commencement of the Act.
IV. The removal of the Governor in the present case was against federal principles and
was unconstitutional.
V. Dismissal of the Provincial Government of Gatoch was without following requisite
procedure and with mala fide intention.
And pass any other order that this Honourable Court deems fit in the interests of justice, equity
and good conscience.
All of which is humbly prayed,

TC- 07,
Counsels for the Petitioner.
Page 29 of 29

4th RGNUL National Moot Court Competition, 2015: Semifinalists - Appellants

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4th RGNUL National Moot Court Competition, 2015