Team Code:

THE 2015 JUSTICE P.B. SAWANT SECOND NATIONAL MOOT

COURT COMPETITION

CASE CONCERNING THE REMOVAL OF GOVERNOR

THE ORGANISATION FOR WELFARE OF PEOPLE

(PETITIONER)
V.

THE UNION OF INDUS LAND

(RESPONDENT)

ON SUBMISSION TO THE FEDERAL COURT OF THE UNION OF

INDUS LAND

MEMORIAL FOR THE PETITIONER

-TABLE OF CONTENTS-

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

-INDEX OF AUTHORITIES-.....................................................................................2
-STATEMENT OF JURISDICTION-........................................................................4
-STATEMENT OF FACTS-..............................................5
-STATEMENT OF ISSUES-.......................................................................................6
-SUMMARY OF PLEADINGS-.................................................................................7
-WRITTEN PLEADINGS-.........................................................................................9
1.
THE PIL IS MAINTAINABLE BEFORE FEDERAL COURT OF
INDUS LAND UNDER ARTICLE 32........................................................................9
1.1 THERE HAS BEEN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE.....9
1.1.1 Principle Of Natural Justice Contained In The Article 14 Of Constitution Of
India.............................................................................................................................10
1.1.2 Principle Of Natural Justice Contained In The Article 21 Of Constitution Of
India.............................................................................................................................11
1.2. THE PRINCIPLE OF LOCUS STANDI IS VALIDATED...................................12
2.
THE GOVERNOR HAS DISCHARGED HIS RESPONSIBILITY IN
ACCORDANCE WITH CONSTITUTIONAL SCHEME.....................................15
2.1 DISCHARGE OF THE RESPONSIBILITY IN RELATION TO THE
DISTRIBUTION
OF
RESOURCES
UNDER ARTICLE
371(2)
OF
CONSTITUTION OF INDUS LAND.........................................................................15
3.
THE CENTRAL GOVERNMENT IN REMOVING THE GOVERNOR
HAS EXERCISED HIS POWER ARBITRARILY AND VIOLATED THE DUE
PROCESS OF LAW...................................................................................................19
3.1. ENGLISH PRINCIPLE OF DOCTRINE OF PLEASURE................................19
3.1.1. Mindset Of The Frame Workers Of The Constitution........................................20
3.1.2 Status Quo Of Doctrine Of Pleasure...................................................................20
3.1.3 Extent Of Judicial Review...................................................................................23
3.2. CONSTITUTIONAL ASPECTS OF THE DECISION OF CENTRAL
GOVERNMENT..........................................................................................................25
4. THE CENTRAL GOVERNMENT HAS LOWERED THE HONOUR AND
DIGNITY OF THE OFFICE OF THE GOVERNOR AND ACTED CONTRARY
TO THE CONSTITUTIONAL POLICY.................................................................27
-PRAYER-...................................................................................................................29
-INDEX OF AUTHORITIES-

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

BOOKS
Banerjee, B.P, Writ Remedies, 4th Edition, 2008, LexisNexis,
Buttersworth Wadhwa Publication, Nagpur
Basu D.D., Constitution of India, 14th Edition 2009, LexisNexis
Butterworths Wadhwa Publication, Nagpur.
Constituent Assembly Debates, Lok Sabha Secretariat, Govt. of
India, 20055.
Jain M.P, Indian Constitutional Law, 6th Edition 2011, LexisNexis
Butterworth Wadhwa, Nagpur.
Seervai H.M., Constitutional law of India, 4th Edition 2002,
Volume 2, Universal Book Traders.
Shukla V.N., Constitution of India, 11th Edition 2008, Eastern
Book Company.

Referred
15, 16
15, 20
Referred
Referred
Referred

CASES
A.K. Gopalan v. The State Of Madras, 1950 AIR 27
A.K. Kraipak v. Union of India, AIR 1970 SC 150
B.P. Singhal v. Union of India & Anr, 2010 6 SCC 331
Baldev Raj Guliani & ors. v. The Punjab & Haryana High Court
& ors, 1976 AIR 2490
Board of Education v. Rice, 1911, A.C. 179, 182
Cantonment Board, Dinapore v. Taramani AIR 1995 SC 61
Central Inland Water Transport Corporation Ltd v. Briojo Nath
and Ors., AIR 1986 SC 157
Council of Civil Service Unions v. Minister for the Civil Service,
1985 AC 374
D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579
Danial H. Walcott v. Superintendent, Nagpur Central,1972 74
BOMLR 436
Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991
SC 101
Dr. Upendra Baxi v. State of U.P, 1983 (2) SCC 308
Epuru Sudhakar v. Government of Andhra Pradesh, 2006 (8) SCC
161
Fertilizer Corporation Kamgar v. Union of India, AIR 1981 SC
149
Gullapalli Nageshwar Rao v. APSRTC, 1959 AIR 308
Gompers v. United States, 233 US 603
Jaswant Singh v. State of Punjab, AIR 1991 SC 385
Kanda v. Govt. of Malaya 1962 A.C. 322
Kehar Singh v. Union of India 1989 (1) SCC 204
Kihota Hollohon v. Zachilhu 1992 Supp. (2) SCC 651

11
10
13, 17, 20
22
10
10
10
23
13
10
10
11, 12
23, 24
13, 14
11
19, 27
22
10
23
23

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Maneka Gandhi v. Union of India, 1978 AIR 597

Maru Ram v. Union of India 1981 (1) SCC 107
Mumbai Kamagar Sabha v. Abdul Thai, AIR 1976 SC 1455
Nagendra Nath v. Commr. of Hills Division, AIR 1958 SC 398
Nawabkhan Abbaskhan v. State of Gujarat, 1974 AIR 1471
New Prakash Transport Co. Ltd. v. New Suwarna Transport Co.
Ltd, AIR 1957 SC 232
Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta
High Court, 1956 AIR 285
R (Bancoult) v. Foreign Secretary, 2009 (1) AC 453
R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324
S.P. Gupta v. President Of India And Ors., AIR 1982 SC 149
S.R. Bommai v. Union of India, 1994 (3) SCC 1
Sapru Jaykar Motilal C.R. Das v. Union of India, AIR 1999 Pat
221
Srikrishna v. State of M.P, AIR 1977 SC 1691
State Of Punjab v. Om Prakash Dharwal And Anr., 1972 CriLJ
1349
State of Rajasthan v. Union of India 1977 (3) SCC 592
State of Karnataka v. Union of India, 1977 (4) SCC 608
U.P. Warehousing Corporation v. Vijay Narain, AIR 1980 SC 840
University of Ceylon v. Fernando, 1960 1 All E.R. 631 P.C

10, 11
23
13
10
11
10
22
23
23
11, 13
13, 24
18
10, 23, 25
16
15, 23
15
12
10

CONSTITUTION OF INDIA
Article 159
Article 311 (2)
Article 74(1)

15
21
21
DICTIONARY

Aiyar P Ramanathan, Law Lexicon, 2005

Blacks Law Dictionary 435 9th Ed. 2009

Referred
12

DYNAMIC LINKS
1. www.indiankanoon.org
2. www.manupatra.com
3. www.westlawindia.com
4. http://parliamentofindia.nic.in/parl.htm

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-STATEMENT OF JURISDICTIONThe Organization for Welfare of People has the honour to submit this Memorial
before the Federal Court of Indus Land in the matter arose due to the removal of the
governor of the state of East Land, Mr. TARAK SINGH, and the subsequent
interpretation of the Article 156(1) along with the Scope of Doctrine of Pleasure. The
Honble Federal Court of Indus Land has the inherent jurisdiction to try, entertain and
dispose of the present case by virtue of Article 32.

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-STATEMENT OF FACTS-SITUATION IN THE STATE OF EAST LAND-

The Conservative Party of Indus Land (CPI) and the Freedom Party of Indus
Land (FPI) are the two major national parties of the country of Indus Land.

State of East Land is the Biggest and the most developed State of the Union of
Indus Land. Mr. Tarak Singh is the Governor and Mr. Vinay Chandra is the
Chief Minister of the State.

Before Elections 2012, FPI is in Power and CPI is in Opposition. CPI is the
ruling party of the State of East Land since last 10 Years.

After Elections 2012, CPI came in power.

-PROBLEMS IN THE STATE OF EAST LAND-

Last year, Media exposed a land grabbing scam in the State in the State of East
Land with the involvement of two senior ministers and five administrative
officers of the CPI.

Chief Minister on consistent media perusal and in public interest directed the
State Crime Investigation Department (CAD) to investigate the matter and
gave the sanction for the Prosecution.

Mr. Tarak Singh ordered the State Government to allocate Rs. 200 crores to
the development of the backward revenue divisions of the State as a special
responsibility under Article 371(2). He also had Bonafide future plans to
allocate Rs. 800 crores for the developed revenue divisions
-THE CASE-

Soon after the Elections, Sh. Tarak Singh is arbitrarily removed from the office
of the Governor without even hearing his side.

The Organization for Welfare of People (OWP), an NGO has now filed a
Bonafide PIL in Federal Court of Indus Land, challenging the decisions of the
Central Government.

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-STATEMENT OF ISSUES-

-1WHETHER THE PIL IS MAINTAINABLE BEFORE FEDERAL COURT OF

INDUS LAND?

-2WHETHER THE GOVERNOR HAS DISCHARGED HIS RESPONSIBILITY IN

ACCORDANCE WITH CONSTITUTIONAL SCHEME?

-3WHETHER THE CENTRAL GOVERNMENT IN REMOVING THE GOVERNOR

HAS EXERCISED HIS POWER ARBITRARILY AND VIOLATED THE DUE
PROCESS OF LAW?

-4WHETHER THE CENTRAL GOVERNMENT HAS LOWERED THE HONOUR

AND DIGNITY OF THE OFFICE OF THE GOVERNOR AND ACTED
CONTRARY TO THE CONSTITUTIONAL POLICY?

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-SUMMARY OF PLEADINGS-

1. THE PIL IS MAINTAINABLE BEFORE FEDERAL COURT OF INDUS LAND

UNDER ARTICLE 32.
It is humbly contended that the PIL filed by Organisation for Peoples Welfare is
maintainable under Article 32 of the Constitution which guarantees the protection of
Fundamental Rights enshrined under Part III of the Constitution. Article 14 and
Article 21 embodies the principle of Natural Justice that clearly has not been ensured
in the current matter, this violation of the Fundamental Rights validating the
maintainability. Further, the Petition is on the behalf of the Citizens of the State which
undoubtedly the Stake Holders and not on behalf of the Governor. Itll further serve as
a petition for protection of Rule of Law. The Locus Standi is validated as petitioner
has sufficient public interest to move the court and instead of being exclusively
concerned with individual Governors, the petitioner seeks transparent rules
concerning the post and office of all Governors, eventually seeking larger good of
public.
2. THE GOVERNOR HAS DISCHARGED HIS RESPONSIBILITY IN
ACCORDANCE WITH CONSTITUTIONAL SCHEME.
Article 163(1) and 163(2) of the Indian Constitution guarantee discretionary powers
and unquestionable validity to the final decision of a Governor, who is the Executive
head of the State. Moreover, the Mr. Tarak Singhs developmental projects in the
backward revenue divisions and issuing of Rs. 200 Crores is validated by Article
371(2) of the Constitution that gives power to the Executive Head to ensure equitable
allocation of funds for development. The judgement in B.P. Singhal v. Union of India
and Article 159 of the Constitution elaborate the politically inactive role of the
Governor who is not necessarily required to be in sync with the policies of Union.
The Govenors discretionary powers provided under certain sections of The
Government of India Act 1935, the predecessor to the Indian Constitution, are
instructive in this context. And thus, the steps taken by the Governor are in
accordance with the Constitutional framework.

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3. THE CENTRAL GOVERNMENT IN REMOVING THE GOVERNOR HAS

EXERCISED HIS POWER ARBITRARILY AND VIOLATED THE DUE
PROCESS OF LAW.
As stated in Article 74(1), the Doctrine of Pleasure is not an exclusive power of the
President but influenced by biases and benefits of the Council of Ministers. Moreover,
it has been validated by the Articles 310(2), 311(1) and 311(2), the judgement in B.P.
Singhal case and the debates of the Constitution makers that the doctrine is not a
licence to act with unfettered discretion and pleasure can be withdrew only for
strong and valid reasons. The sufficiency of the material on basis of which the
President is advised cannot be questioned but the legitimacy of inference drawn from
such material is open to judicial review. Mr. Tarak Singhs actions were aimed at
betterment of the public. His immediate removal with the CPI coming in power,
without any valid reason, establishes the arbitrary and undue use of power by the
Central Government.
4. THE CENTRAL GOVERNMENT HAS LOWERED THE HONOUR AND
DIGNITY OF THE OFFICE OF THE GOVERNOR AND ACTED CONTRARY
TO THE CONSTITUTIONAL POLICY.
The Sarkaria Commission (1988) and Venkatachaliah Commission (2002)
recommended that the Governor should be allowed to complete the tenure of five
years and expulsion of the Governor, in any case, must be backed by a very strong
and compelling reason. The repeated shifting of Governors from one state to the other
tends to lower down the prestige of a Governor to the level of civil servants. The
Punchhi Commission (2010) suggests the scrapping of the phrase, Pleasure of
President from the Constitution. The post of a Governor stands for unity of a nation
and in removal of an unbiased and progressive governor like Mr. Tarak Singh, without
any just reason, the Central Government has acted contrary to Constitutional policy
and lowered the honour of the office of the Governor.

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-WRITTEN PLEADINGS1. THE PIL IS MAINTAINABLE BEFORE FEDERAL COURT OF INDUS

LAND UNDER ARTICLE 32.
In the context of the instant case between OPW and Union of Indus Land, the PIL is
filed under Article 32 of Indian Constitution, which guarantees the protection of the
Fundamental Rights, enshrined in the Part III of the Constitution. There has been
substantial violation of Fundamental Rights of the Governor, the Executive Head of
the state. This has consequently resulted into gradual loss to public.
Even with plausible drawbacks, the system of appointed Governors was accepted in
India for some very important reasons.
Firstly, in country of Indus Lands vastness and diversity, it is essential that the state
Governor stands as a symbol of Indian unity. Governors with rare exceptions are from
other states, symbolizing that India is essentially one country.
Secondly, disintegrating tendencies in India are very strong. To prevent Balkanization
of India, it is essential, that the Governor work as the, watch-dog of the constitution
and its proper working in the state. To serve this purpose, it is essential that the
Governor works as the agent of the centre which only a nominated Governor will do.
Finally, a nominated Governor with no stake in the state politics will be act as a wise
and impartial advisor to the Chief Minister.
Thus a nominated Governor may prove to be an asset to a state. And thus, the
governor is of utmost importance to people in the state where the parties at centre and
state are different.
1.1 THERE HAS BEEN A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE:
In the Constitution of India, nowhere the expression Natural Justice is used. However,
golden thread of natural justice sagaciously passed through the body of Indian
Constitution. Preamble of the constitution includes the words, Justice Social,
Economic and political liberty of thought, belief, worship... And equality of status
and of opportunity, which not only ensures fairness in social and economic activities

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

of the people but also acts as shield to individuals liberty against the arbitrary action
which is the base for principles of Natural Justice.
In Srikrishna v. State of M.P.1, It has been observed that the principles of Natural
Justice are flexible and the test is that the adjudicating authority must be impartial and
fair hearing must be given to the person concerned.
1.1.1 Principle of Natural Justice Contained In the Article 14 of Constitution of India
As we know that this Article guarantees equality before law and equal protection of
law. It bars discrimination and prohibits both discriminatory laws and administrative
action. Art 14 is now proving to be bulwark against any arbitrary or discriminatory
state action. The horizons of equality as embodied in Art 14 have been expanding as a
result of the judicial pronouncements and Art 14 has now come to have a highly
activist magnitude. It laid down general preposition that all persons in similar
circumstance shall be treated alike both in privileges and liabilities imposed. In some
cases, the Courts insisted, with a view to control arbitrary action on the part of the
administration, that the person adversely affected by administrative action be given
the right of being heard before the administrative body passes an order against him. It
is believed that such a procedural safeguard may minimize the chance of the
Administrative authority passing an arbitrary order.
Justice P.N Bhagwati stated2: the principle of reasonableness which legally as well
as philosophically is an essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence.
It is Submitted before the Honble Federal Court that:
The Supreme Court has extracted from Art.14 following its precedents that the
Principle of Natural Justice is an integral part of administrative process.3
It is contented that the Actions of Central Government in the present case of sacking
of governor were both arbitrary and unreasonable, and it also wholly ignored and

1 Srikrishna v. State of M.P, AIR 1977 SC 1691.

2 Maneka Gandhi v. Union of India, 1978 AIR 597

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stood aside the Audi Alterum Partum Rule and, thus, it violated Article 14 of
Constitution of India.
1.1.2 Principle Of Natural Justice Contained In The Article 21 Of Constitution Of
India
In Maneka Gandhi v. Union of India4, Supreme Court by realizing the implications
of A.K. Gopalan Case5 during 1975 emergency took U turn and held that Article 21
would no longer mean that law could prescribe some semblance of procedure
however arbitrary or fanciful, to deprive a person of his personal liberty. It now means
that the procedure must satisfy certain requisites in the sense of being fair and
reasonable. The procedure cannot be arbitrary, unfair or unreasonable. The
concept of reasonableness must be projected in the procedure contemplated by Art.21.
The Court has now assumed the power to adjudge the fairness and justness of
procedure established by law to deprive a person of his personal liberty.6 The Court
has reached this conclusion by holding that Arts. 21, 19 and 14 are mutually
exclusive, but are inter-linked.
In S.P. Gupta v. President of India And Ors.7, where Dr. Upendra Baxi v. State of
U.P.8 was referred as precedent, it was held that the Doctrine of Public Interest
3 Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991 SC 101; Maneka Gandhi
v. Union of India, AIR 1978 SC 597; Central Inland Water Transport Corporation Ltd v.
Briojo Nath, AIR 1986 SC 1571; Cantonment Board, Dinapore v. Taramani AIR 1995 SC 61;
Kanda v. Govt. of Malaya 1962 A.C. 322; Danial H. Walcott v. Superintendent, Nagpur
Central, 1972 74 BOMLR 436; Board of Education v. Rice 1911 A.C. 179, 182; University of
Ceylon v. Fernando 1960 1 All E.R. 631 P.C; Nagendra Nath v. Commr. of Hills Division AIR
1958 SC 398; New Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd, AIR 1957
SC 232; A.K. Kraipak v. Union of India, AIR 1970 SC 150.
4 Maneka Gandhi v. Union of India, AIR 1978 SC 597.
5 A.K. Gopalan v. The State Of Madras, 1950 AIR 27, 1950 SCR 88.
6 Nawab khan Abbas khan v. State of Gujarat, 1974 AIR 1471; Gullapalli Nageshwar Rao v.
APSRTC, 1959 AIR 308.
7 S.P. Gupta v. President Of India And Ors. AIR 1982 SC 149.
8 Dr. Upendra Baxi v. State of U.P, 1983 (2) SCC 308.

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

Litigation was formulated by a Bench of 7 Judges in a comprehensive form, to apply

to any case of public injury arising from
A. the breach of any public duty, or
B. the violation of some provision of the Constitution, or
C. Of the law.
The doctrine was applied by the Supreme Court to enforce fundamental rights under
Article 32, not only to enforce fundamental rights but also to restrain the Executive
from undermining the public interest.9
In U.P. Warehousing Corporation v. Vijay Narain10, the Honble Supreme Court held
that Writ of Certiorari or Prohibition usually goes to a body which is bound to act
fairly or according to natural justice and it fails to do so. In the same manner where
the decision is affected by bias, personal, or pecuniary, or subject matter as the case
may be considered as violation of principle of natural justice. In such circumstances
also Writ of Certiorari and Prohibition can be issued both Under Art 32 and 226.
In the present case, Council of Ministers arbitrarily influenced, under article 74(1), the
doctrine of pleasure, which is to be executed by the president, for their own political
benefits and out of political vendetta, which is clear from the Moot Proposition, where
it is stated, that the controversy11 between the Governor and the Council of Ministers
arose due to the Pro-Citizens Policies and Actions of the governor which, obviously,
wasnt accepted to the Ministers as it denied them their share of profit.
Therefore, now, it is viable to establish and consider the present situation, in a way
pertaining to the violation of Principle of Natural Justice.
1.2. VALIDATION OF THE PRINCIPLE OF LOCUS STANDI
(STANDING REQUIRED IN LAW)
According to Black's Law Dictionary129 Supra, Note 8.
10 U.P. Warehousing Corporation v. Vijay Narain, AIR 1980 SC 840.
11 Moot Proposition, Pg. 3, 1, Line 1.

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"Public Interest Litigation means a legal action initiated in a court of law for the
enforcement of public interest or general interest in which the public or class of the
community have pecuniary interest or some interest by which their legal rights or
liabilities are affected."
It was earlier believed that, the petitioner has no locus to maintain the petition in
regard to the prayers claiming relief for the benefit of the individual Governors. At all
events, such prayers no longer survive on account of passage of time. However, with
regard to the general question of public importance referred to the Constitution
Bench, touching upon the scope of Article 156 (1) and the limitations upon the
doctrine of pleasure, the petitioner has necessary locus.13
This petition should not be considered to be filed on behalf of the Governor or for
claiming his benefits but should be taken as petition on behalf of the people of the
State of the East Land who will definitely be on the loss side due to such
unconstitutional and unreasonable politically motivated decisions. This petition is to
plead before the Judiciary to protect the Rule of Law which is clearly highlighted as
an integral part of the Constitution.14
There are two basic reasons as to why the petitioner is claiming this:
1. This would encourage the practise of removing the Governor, who is not In-Sync with
the policies of the Government or the Governor who takes decisions on behalf of the
Citizens of the State disfavouring the profits of the State Ministry.
2. This would serve as deterrent, for the future Governors, to frame a policy in the
favour of the Citizens of the State and carry out their Constitutional Obligations, if it
goes against the policies of the State.
The Rule of Locus Standi have been relaxed15 and a person acting bona fide and
having sufficient interest in the proceeding of Public Interest Litigation will alone
12 Blacks Law Dictionary 435, 9th Ed., 2009.
13 B.P. Singhal v. Union of India &Anr, (2010) 6 SCC 331, 11.
14 S.R. Bommai v. Union of India, 1994 AIR 1918.
15 Supra, Note 7.

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have a Locus Standi and can approach the court to wipe out violation of fundamental
rights and genuine infraction of statutory provisions.16
Any member of the public having sufficient interest can maintain an action for
judicial redress for public injury arising from breach of public duty or from violation
of some provision of the Constitution or the law and seek enforcement of such public
duty and observance of such constitutional or legal provision.17
Justice Krishna V. Iyer in Fertilizer Corporation Kamgar Union v. Union of India18
enumerated the following reasons for liberalization of the rule of Locus Standi:
1. Exercise of State power to eradicate corruption may result in unrelated interference
with individuals rights.
2. Social justice requires liberal judicial review of administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative
action.
4. Activism is essential for participative public justice.
Therefore, a public minded citizen must be given an opportunity to move the court in
the interests of the Public. In the present case, the Organization for Welfare of People
(hereinafter OWP), a Non-Governmental Organization working in area of Good
Governance in Indus Land,19 has sufficient Public Interest and therefore, completely
satisfies the pre-requisite of the principle of Locus Standi.
Hence, in the light of the above stated arguments, cited authorities, and issue raised.
The petitioner seeks:

16 D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579; Mumbai Kamagar Sabha v. Abdul
Thai, AIR 1976 SC 1455; Fertilizer Corporation Kamgar v. Union of India, AIR 1981 SC
149.
17 Supra, Note 7.
18 Fertilizer Corporation Kamgar v. Union of India, AIR 1981 SC 149.
19 Moot Proposition, Pg. 4, 3, Line 3.

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(a) a direction to the Union of Indus Land to produce the entire files, documents and
facts which formed the basis of the order of the President of India;
(b) a writ of certiorari, quashing the removal of the Governor; and
(c) a writ of mandamus to the respondents to allow the Governor to complete their
remaining term of five years.

2. THE GOVERNOR HAS DISCHARGED HIS RESPONSIBILITY IN

ACCORDANCE WITH CONSTITUTIONAL SCHEME
In the Indian Republic, the State Governor stands at the Head of the Executive power
of any State in India, just like the President who is the head of the Executive Power in
the Union. The Governor is the nominal head of a State, unlike the Chief Minister
who is the Real Head of a State in India. In other words, all Executive Actions of an
Indian State are taken in the name of the Governor. Like the President of India, the
Governor of any State in India is vested with certain Executive, Legislative and
Judicial powers. He or She also possesses certain discretionary or emergency
powers.20
Shri Jawaharlal Nehru expressed in the Constituent Assembly21 that:
But on the whole it probably would be desirable to have people from outside
eminent people, sometimes people who have not taken too great a part in politics
he would nevertheless, represent before the public, someone slightly above the party
20 State of Rajasthan v. Union of India, 1977 3 SCC 592; State of Karnataka v. Union of
India, 1977 (4) SCC 608.
21 Constituent Assembly Debates, Lok Sabha Secretariat, Govt. of India, 20055, Volume III,
Pg. 455, 469.

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

and thereby, in fact, help that government more than if he was considered as part of
the party machine.22

2.1 DISCHARGE OF THE RESPONSIBILITY IN RELATION TO THE

DISTRIBUTION OF RESOURCES UNDER ARTICLE 371(2) OF CONSTITUTION
OF INDUS LAND.
Article 163 of Constitution of India, reads:
(1) There shall be a Council of Ministers with the Chief Minister at the head to aid
and advice the Governor in the exercise of his functions, except in so far as he is by or
under this Constitution required to exercise his functions or any of them in his
discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the
Governor is by or under this Constitution required to act in his discretion, the
decision of the Governor in his discretion shall be final, and the validity of anything
done by the Governor shall not be called in question on the ground that he ought or
ought not to have acted in his discretion.
The very interpretation of Article 163(1) and 163(2) in accordance with the
Fundamentals of Constitutionalism, leads the counsel to three conclusions:
A) Article 163(1): Governor of State of East Land, Mr. Tarak Singh was not bound to
follow the advice of Council of Ministers (in certain matters) and prima facie, was
allowed by the Constitution to take decisions on his discretion.23
B) Article 163(2): Whatever decision governor takes, will be on his own knowledge and
discretion and SHALL be final, and,
C) The validity of the decision of the Governor cannot be questioned in the court, as to
whether it is his own discretion or not.

22 Id. Also see: D.D Basu, Commentary on the Constitution of India, 8th Ed.,
2011, Vol. 5, Pg. 6136.

23 State Of Punjab v. Om Prakash Dharwal And Anr., 1972 CriLJ 1349

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Article 371(2) of the Constitution of the Indus Land, gives to the Governor Special
Powers, which are vested on him by the president, in relation with the developmental
scheme of a State. These powers are meant to be executed by the Governor, according
to his discretion and that is why the powers are exclusively vested in him and not on
the concerned State Ministry.
The functions pertaining to the obligations under Article 371(2) are to be exercised by
the Governor on his special responsibility which practically means the same as in
his discretion because though in cases of special responsibility, he is to consult his
Council of Ministers, the final decision shall be his individual judgement, which court
cannot question.24
Therefore, the decision of the governor Mr. Tarak Singh, with respect to the
distribution of Resources to Backward Areas of State of East Land and Establishment
of Institute of Technology and Construction of two Dams for boosting up the
agriculture, are completely in accordance with the constitutional scheme of the
country and in accordance with the Constitution of Indus Land under Article 371 (2)
which empower the President that he may by order give special responsibility to the
Governor of the state to ensure the equitable allocations of funds for developmental
expenditure of certain parts of the State. It is also based on the recommendations of
the Fact Finding Committee constituted by the State and hence, if the State
Government does not believe on their own committee then how can they be reliable
enough to take considerations and suggestions from.
It is said that while many of the Governors may come from a political background
once they are appointed as Governors, they owe their allegiance and loyalty to the
Constitution and not to any political party and are required to preserve, protect and
defend the Constitution. This becomes quite clear after reading the oath or
affirmation by the Governor under Article 159 of the Constitution.25 Like the
President, Governors are expected to be apolitical, discharging purely constitutional
functions, irrespective of their earlier political background. Governors cannot be
politically active. Thus in the B.P. Singhals Case26, the court held that it is not
necessary that the Governors should be in sync with the policies of the Union
24 D.D. Basu, Commentary on the Constitution of India, 8th Ed., 2009, Vol. V, Pg. 60996100.

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Government or should subscribe to the ideology of the party in power at the Centre.
Although, it is not mentioned in the proposition that on what grounds, was the
Governor, Mr. Tarak Singh was sacked, but it can be clearly inferred that it was
because of the policies of the Governor, there arose a controversy between the
Governor and Council of Ministers as these policies did not politically benefitted
them.
The Counsel on behalf of the Petitioner would like contend that a close observation of
the relevant provisions of the Government of India Act, 1935, which as already
noticed was the immediate predecessor of the Constitution is instructive in this regard.
The above-said statute had reserved a very large field of activity for the exercise of
the Governor's individual discretion his individual judgment and for discharging these
special responsibilities. This expression "in his discretion" and another expression "in
his individual judgment" are expressions which were freely used in the Government
of India Act. 1935.
Article 163 of the Constitution makes a distinction between matter in which the
Governor must act on the aid and advice of the Council of Ministers and the matters
where he must act in his discretion. Article 163 makes him the sole and final judge
whether any action is to be exercised in his discretion or on the advice of the council
of ministers. Hence, if any question arises whether any matter is a matter as respects
which the Governor is by or under constitution required to act in his discretion, the
decision of the Governor on his discretion shall be final.27
It is, therefore, evident that the framers of the Constitution expressly included the
scope of the individual discretion or individual judgment or individual capacity of the

25 Article 159 Every Governor and every person discharging the functions of the Governor shall,
before entering upon his office, make and subscribe in the presence of the Chief Justice of the High
Court exercising jurisdiction in relation to the State, or, in his absence, the senior-most the following
form, that is to say- I, (A. B.), do swear in the name of God that I will faithfully execute the office of
Governor (or discharge the functions of the Governor) of ... (Name of the State) and will to the best of
my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the
service and well-being of the people of. (Name of the State).

26 B.P. Singhal v.Union of India & Anr, 2010 6 SCC 331.

27 Sapru Jaykar Motilal C.R. Das v. Union of India, AIR 1999 Pat 221.

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Governor in regard to the above said powers because no such language was
deliberately used in the corresponding provisions of the Constitution.
Hence, it is viable to establish now that the Governor has well acted within the ambit
of his constitutional obligation and has not acted contrary to the constitutional
scheme.

3. THE CENTRAL GOVERNMENT IN REMOVING THE GOVERNOR HAS

EXERCISED HIS POWER ARBITRARILY AND VIOLATED THE DUE
PROCESS OF LAW
In a Democracy, the principle of accountability holds that Government Officials
whether elected or appointed by those who have been electedare responsible to the
citizenry for their decisions and actions. Transparency requires that the decisions and
actions of those in government are open to public scrutiny and that the public has a
right to access such information. Both concepts are central to the very idea of
democratic governance. Without accountability and transparency, democracy is
impossible. In their absence, elections and the notion of the will of the people have no
meaning, and government has the potential to become arbitrary and self-serving.
3.1 DOCTRINE OF PLEASURE

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The Doctrine of Pleasure says that certain authorities hold office till he or she enjoys
the confidence of the President or the Governor. The Latin maxim durante bene
pacito which means during pleasure, lead to the formation of this Doctrine. This
Doctrine has its origin in the Common Law of England.
Doctrine of Pleasure refers to the discretion vested in the President to remove various
Constitutional functionaries. However, Article 156 merely mentions that the Governor
shall hold office during the pleasure of the President.
At this Juncture, let us also remember the words of Justice Holmes:
The provisions of the Constitution are not mathematical formulas having their
essence in their form; they are organic, living institutions.. The significance is vital,
nor formal; it is to be gathered not simply by taking the words and a dictionary, but by
considering their origin and the line of their growth.28
It is important to understand that it is not the President who has the powers to remove
the Constitutional Functionary; it is the Constitution which has it. So if the President
makes use of this power, he has to do it in accordance with the Constitution of the
Land. So, any Decision taken based on some provisions of the Constitution, should be
in strict accordance with the sprit and the Fundamentals of the Constitution.
3.1.1. Mindset of the Framers of the Constitution
When the issue of removal of Governor was discussed in the Constituent Assembly,
Shibban Lal Saksena, KT Shah and Loknath Mishra wanted it to be codified in the
Constitution.
Dr. BR Ambedkar, chairman of the drafting committee, said in reply, this power of
removal is given to the President in general terms.
What Prof Shah wanted was that certain grounds should be stated in the Constitution
itself for the removal of the Governor.
The debates however disclose29 the following:

28 Gompers v. United States, 233 US 603.

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(I) The intention of the Founding Fathers was to adopt the route of Doctrine of
Pleasure, instead of impeachment or enquiry, with regard to removal of Governors.
(II) It was assumed that withdrawal of pleasure resulting in removal of the Governor
will be on valid grounds but there was no need to enumerate them in the Article.
3.1.2 Status Quo of Doctrine of Pleasure
In the B.P. Singhals Case30 , it was held by Honble Supreme Court that the Doctrine
of Pleasure is not a licence to act with unfettered discretion, and to act arbitrarily,
whimsically, or capriciously. It does not dispense with the need for a cause for
withdrawal of the pleasure. In other words, at pleasure doctrine enables the removal
of a person holding office at the pleasure of an authority, summarily, without any
obligation to give any notice, and without any obligation to assign any reasons or
disclose any cause for the removal, or withdrawal of pleasure. However, the
withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority,
but can only be for valid reasons.
In the case of B.P. Singhal v. Union of India & Anr31, the court has categorically stated
that the Doctrine of Pleasure in its absolute unrestricted application does not exist in
India.
Article 15632 merely mentions that the Governor shall hold office during the pleasure
of the President. It does not prescribe any conditions for exercising this pleasure.
However, this does not mean that the discretion is absolute, unrestricted and
unfettered.
Article 74(1)33 of Constitution of India, 1949 on a close read utters out an
interpretation that there is an obligation on the President and he is bound to accept and
29 Constituent Assembly Debates, Lok Sabha Secretariat, Govt. of India, 20055, 2nd June
1949, Part II.
30 B.P. Singhal v. Union of India & Anr, (2010) 6 SCC 331.
31 Id.
32 Constitution of India, 1950

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work a per the advice of council of ministers, which cannot be deviated from, as the
last line of Article 74(1) reads:
There shall be a Council of Minister
..
.the President shall act in accordance with the advice tendered after such
reconsideration.
Hence, Doctrine of Pleasure is not an Exclusive Power of the President but is, indeed,
influenced by the Bias and Benefits of the Council of Ministers and their politically
motivated reasons. The instant case is a perfectly fit-in example of such an issue. It is
clear that Mr. Tarak Singh, the Governor, gave sanction to a policy which benefitted
people34 but was not in-sync with the policies of state government, and hence State
Ministers were not happy with him and once, they gained majority in lower house of
parliament of Indus Land, after winning in the general elections, and came into the
power, they sacked him35 using their power arbitrarily and hence violating the
fundamental principle of Constitutionalism.
It is impossible to hold that the Governor is under the control of the Government of
India. His office is not subordinate or subservient to the Government of India. He is
not amenable to the directions of the Government of India, nor is he accountable to
them for the manner in which he carries out his functions and duties. His is an
Independent Constitutional Office which is not subject to the control of the
Government of India. He is constitutionally the head of the State in whom is vested
the executive power of the State and without whose assent there can be no legislation
in exercise of the legislative power of the State. There can, therefore, be no doubt that

33 Article 74(1): There shall be a Council of Ministers with the Prime Minister at the head
to aid and advise the President who shall, in the exercise of his functions, act in accordance
with such advice: Provided that the President may require the council of Ministers to
reconsider such advice, either generally or otherwise, and the President shall act in
accordance with the advice tendered after such reconsideration.
34 Moot proposition, Pg. 3. 1, Line 3.
35 Moot proposition, Pg. 3. 3, Line 3.

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the office of Governor is not an employment under the Government of India and it
does not come within the prohibition of clause (d) of Article 319.36
The Counsel on Behalf of Petitioner sees that there is no such thing as absolute and
unfettered discretion in India. There is a distinction between the doctrine of pleasure
as it existed in a medieval set-up and the doctrine of pleasure in a democracy
governed by Rule of Law. Where Rule of Law prevails, there is nothing
like unrestricted discretion or unaccountable action. The degree of need for
reason may vary. The degree of scrutiny during judicial review may vary. But the
need for reason exists. Thus where there are no express limitations or restrictions
existing, it should be read as being subject to the fundamentals of
constitutionalism.
However, contrary to this, as per the Moot Proposition,37 when the Governor Mr.
Tarak Singh, requested to the President of Indus Land, to provide him with an
opportunity to present his side, he was denied of this opportunity. 38Moreover, on an
unfortunate premise, there were no reasons as such disclosed and opened out for his
removal, which is quite suspicious. It is clearly a hint of Malafide intention of Central
Government on the premise of removal of governor for their own politically
motivated benefits.
Further the Judiciary has also acted as checks and balances on the arbitrary exercise of
the power of conferred by the doctrine on the president and the Governor. The
Supreme Court in Jaswant Singh v. State of Punjab39 held that in spite of finality
of Article 311(3)40:

36 Baldev Raj Guliani & Ors. v. The Punjab & Haryana High Court & Ors., 1976 AIR 2490
; Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court, 1956 AIR 285.
37 Moot proposition, Pg. 4, 2, Line 1.
38 Ibid.
39 Jaswant Singh v. State of Punjab, AIR 1991 SC 385.
40 Constitution of India, 1950.

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The finality can certainly be tested in the court of law and interfered with if the
action is found to be Arbitrary or Malafide or motivated by extraneous considerations
or merely a ruse to dispense with the inquiry.
It is important to note that most of things mentioned above have been discussed and
mentioned in the B.P. Singhals Case.41 It was a Constitutional Bench Judgment and is
considered to be a landmark case on the Doctrine of Pleasure.
3.1.3 Extent of Judicial Review
When a Governor holds office during the pleasure of the Government and the power
to remove at the pleasure of the President is not circumscribed by any conditions or
restrictions, it follows that the power is exercisable at any time, without assigning any
cause. However, there is a distinction between the need for a cause for the removal,
and the need to disclose the cause for removal. 42 While the President need not disclose
or inform the cause for his removal to the Governor, it is imperative that a cause must
exist. If we do not proceed on that premise, it would mean that the President on the
advice of the Council of Ministers may make any order which may be manifestly
arbitrary or whimsical or mala fide. Therefore, while no cause or reason be disclosed
or assigned for removal by exercise of such prerogative power, some valid cause
should exist for the removal.
The view43 of Supreme Court was that the power of withdrawal of pleasure is a part of
the constitutional scheme, and not an act of grace as in England. It is a constitutional
responsibility to be exercised in accordance with the discretion contemplated by the
context. It is not a matter of privilege but a matter of performance of official duty. All
public power including constitutional power, shall never be exercisable arbitrarily or
mala fide. Where reasons are given, court may interfere if the reasons are found to be
irrelevant. However, when reasons are not given, court may interfere only where the
41 Supra, Note 1.
42 Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374; R
(Bancoult) v. Foreign Secretary, 2009 (1) AC 453); Kihota Hollohon v. Zachilhu 1992 Supp.
(2) SCC 651.
43 R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324; State of Rajasthan v. Union of
India 1977 (3) SCC 592.

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exercise of power is vitiated by self-denial on wrong appreciation of the full

amplitude of the power under Article 74 and Article 156 or where the decision is
arbitrary, discriminatory or mala fide.44

According to Justice HC KAPADIA:

The controlling factor in determining whether the exercise of prerogative power is
subject to judicial review is not its source but its subject matter. It can no longer be
said that prerogative power is ipso facto immune from judicial review. Rule of Law
isthe basis for evaluation of all decisions. The supreme quality of the Rule of Law is
fairness and legal certainty.45
Exercise of power under Article 156(1) being an executive power exercised on the
advice tendered by the Council of Ministers, the question is whether the bar contained
in clause (2) of Article 74 will apply. The said clause provides that the question
whether any, and if so what, advice was tendered, shall not be enquired into by any
court. This clause has been the subject- matter of a Nine-Judge Bench decision in S.R.
Bommai v. Union of India46. This Court has held that Article 74(2) merely bars an
inquiry into the question whether any, and if so what, advice was tendered by the
Council of Ministers to the President but does not bar the scrutiny of the material on
the basis of which the President has made the order. This Court also held that while an
order issued in the name of the President could not be challenged on the ground that it
was contrary to the advice tendered by the Council of Ministers or was issued without
obtaining the advice from the Ministers, it does not bar the court from calling upon
the Union of India to disclose to the court the material on which the President has
formed the requisite satisfaction. The bar contained in Article 74(2) will not come in
the way of the court inquiring whether there was any material on the basis of which
44 Maru Ram v. Union of India 1981 (1) SCC 107; Kehar Singh v. Union of India, 1989 (1)
SCC 204; Epuru Sudhakar v. Government of Andhra Pradesh, 2006 (8) SCC 161.
45 Epuru Sudhakar v. Government of Andhra Pradesh, 2006 (8) SCC 161.
46 S.R. Bommai v. Union of India, 1994 (3) SCC 1.

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such advice was given, whether such material was relevant for such advice and
whether the material was such that a reasonable man could have come to the
conclusion which was under challenge. Therefore, though the sufficiency of the
material could not be questioned, legitimacy of the inference drawn from such
material was open to judicial review.
Hence, Counsel on behalf of Petitioners contends that what Article 156(1) dispenses
with is the need to assign reasons or the need to give notice but the need to act fairly
and reasonably cannot be dispensed with by Article 156(1).
3.2. CONSTITUTIONAL ASPECTS OF THE DECISION OF CENTRAL
GOVERNMENT
In the case of B.P Singhal v. Union of India47 Court went on to elaborate what seems
to be the most important part of its reasoning. One of the permissible grounds for
removal suggested was the Governor not being in sync with the policies if the
Central Government, and that a Governor could be removed if and when the Central
Government lost confidence in her/him. However, the Court noted that the political
scenario has undergone a sea change over the last several years, and different parties
are often in power at the Centre and the State.
Allowing confidence to be a ground for removal would thus allow the
politicisation of the post of a Governor, which was specifically intended to be an
apolitical Constitutional post.
The present case in front of the Federal Court of Indus Land carries with it, certain
instances which have clearly violated the findings of Supreme Court in the case BP
Singhal v. Union of India48. Firstly, in the moot proposition, it is clearly stated that
because of the policies of Governor regarding allocation of Resources in the state
eventually enforced for the purpose of betterment of citizens of the state, there arose a
controversy between the Governor and Council of Ministers, with respect to the
distribution of resources to backward areas of State of East Land. Secondly, as soon as
CPI came into the power, the President withdrew his pleasure, and sacked the
47 Supra, Note 1.
48 Id.

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Governor, Mr. Tarak Singh, without any valid/strong reason, and thus, establishing an
arbitrary use of power. Therefore, it becomes an essential finding of the case that,
there is a connection between these two incidents and thus, the fact that the Governor,
Mr. Tarak Singh was sacked because of the reason that he was out of in-sync with
the central government, cannot be denied.
Therefore, the removal should conform to the following constitutional norms:
Norm 1 Removal of Governor to be in rare and exceptional circumstances, for
compelling reasons which make him unfit to continue in office.
Norm 2 A Governor should be apprised of the reasons for removal.
Norm 3 The order of removal is subject to judicial review.
Therefore, it is humbly submitted before the Honble Federal Court of Indus Land,
that the Central Government, in removing the Governor, has exercised their power
arbitrarily and violated the due process of law.

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4. THE CENTRAL GOVERNMENT HAS LOWERED THE HONOUR AND

DIGNITY OF THE OFFICE OF THE GOVERNOR AND ACTED CONTRARY
TO THE CONSTITUTIONAL POLICY
Sarkaria Commission has also mentioned quite a bit in relation to removal of the
Governors. The Report of the Sarkaria Commission on Centre State Relations states
that:
Further, the ever-present possibility of the tenure being terminated before the full
term of 5 years, can create considerable insecurity in the mind of the Governor and
impair his capacity to withstand pressures, resist extraneous influences and act
impartially in the discharge of his discretionary functions.
The Sarkaria Commission recommended that the Governors tenure of office of five
years in a State should not be disturbed except very rarely and that too for some
extremely compelling reason. It is indeed very necessary to assure a measure of
security of tenure to the Governor's office.
Repeated shifting of Governors from one State to another can lower the prestige of
this office to the detriment of both the Union and the State concerned. As a few State
Governments have pointed out, Governors should not be shifted or transferred from
one State to another by the Union as if they were civil servants. The five year term of
Governor's office prescribed by the Constitution in that case loses much of its
significance.
At this juncture, let us also remember the words of Justice Holmes:

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The provisions of the Constitution are not mathematical formulas having their
essence in their form; they are organic, living institutions.. The significance is vital,
nor formal; it is to be gathered not simply by taking the words and a dictionary, but
by considering their origin and the line of their growth.49
As the Governor is appointed by the President for a period of five years, the dismissal
in an arbitrary way is no doubt a punishment inflicted without the due process of law.
The well settled principle of justice from the era of Magna Carta is that no person
shall be punished except by the procedure established by the law. When the Union
government fails to honour the noble principle of Justice and universally
acknowledged values of democracy, then it is the duty of the apex court to have a say
on what constitutes a just and lawful interpretation of the clause "the Governor shall
hold the office during the pleasure of the President."
Three important commissions have examined this issue, namely:
The Sarkaria Commission (1988) recommended that Governors must not be removed
before completion of their five year tenure, except in rare and compelling
circumstances. This was meant to provide Governors with a measure of security of
tenure, so that they could carry out their duties without fear or favour. If such rare
and compelling circumstances did exist, the Commission said that the procedure of
removal must allow the Governors an opportunity to explain their conduct, and the
central government must give fair consideration to such explanation. It was further
recommended that Governors should be informed of the grounds of their removal.
The Venkatachaliah Commission (2002) similarly recommended that ordinarily
Governors should be allowed to complete their five year term. If they have to be
removed before completion of their term, the central government should do so only
after consultation with the Chief Minister.
The Punchhi Commission (2010) suggested that the phrase during the pleasure of the
President should be deleted from the Constitution, because a Governor should not be
removed at the will of the central government; instead he or she should be removed
only by a resolution of the state legislature.
49 Gompers v. United States, 233 US 603.

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The counsel on behalf of Petitioners pleads that just as the intervention of the apex
court, did, put an end to the arbitrary exercise of the power under Article 356, so also
a similar intervention is warranted to give honest, impartial and correct interpretation
to Article 156(1), which deals with the pleasure of the President.
Otherwise the dignity of the office of Governor and the federal structure of the
Constitution will be subverted irreparably in the power game of political parties.

-PRAYERIn light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully submitted that this Honourable Court may adjudge and
declare that:
1) The PIL is maintainable before the Federal Court of Indus Land.
2) The Governor has discharged his responsibility in accordance with Constitutional
Scheme.
3) The Central Government in removing the Governor has exercised his power
arbitrarily and violated the due process of law.
4) The Central Government has lowered the honour and dignity of the office of the
Governor and acted contrary to the Constitutional policy.
Also, the Counsel on Behalf of Petitioner prays before the Apex Court to issue certain
directives regarding appointment and removal of the Governor for the purpose of
maintaining the dignity of the office of Governor and also for restoration of Mr. Tarak
Singh as the Governor of the State of East Land.

The court may also be pleased to pass any other order, which this Honourable Court
may deem fit in light of Justice, Equity and Good Conscience.
All of which is respectfully affirmed and submitted.

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SD/-Counsels on Behalf of Petitioner-

31