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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

R.K. YADAV MOOT COURT COMPETITION

IN THE HONORABLE COURT OF SUPREME COURT OF INDIA

Under Article 136 of the Constitution of India

Central Democratic Alliance....................................................Petitioner

vs.

State of Crosia........................................................................Respondent

Memorandum on the behalf of the Petitioner

Central Democratic Alliance

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INDEX OF AUTHORITIES

Cases

(1994) 3 S.C.C. 1. ......................................................................................................................................... 6

(2006) 2 S.C.C. 1. ......................................................................................................................................... 6
(2014) 10 S.C.C. 1. ................................................................................................................................... 6, 9
A.I.R. 1969 S.C. 903. ................................................................................................................................ 6, 9
A.I.R. 1973 Madras 371. ............................................................................................................................... 9
A.I.R. 2008 Gauhati 103. .............................................................................................................................. 9

Statutes

Consititution of India. ................................................................................................................................... 5

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STATEMENT OF JURISDICTION

The Honble Supreme Court of India exercises its Appellate Jurisdiction over all Courts and
Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Art.
136 of the Constitution from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any Court or Tribunal in the territory of India. The Petitioner
submits to the jurisdiction of this Honble Court under Art. 136.
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STATEMENT OF FACTS

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

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

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

4) Considering the situation of the assembly, the governor of the state asked for the division of
reports on the money bill and audio and video of the assembly proceedings which were not
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supposed to be made public and the same was submitted to the speaker emphasizing that the
reports shall be kept confidential. On its basis, the Governor prepared a report and submitted it to
the Central Government, recommending Presidents rule in the state. The Centre was of the view
that continuance of the Crosian government was immoral and unconstitutional after 18th
August 2016, when the Speaker declared Appropriation Bill passed without allowing a
division pressed by 33 MLAs including the 9 ANP legislators. The Union Cabinet held an
emergency meeting on 26th August to consider the report of the Governor. The CD of the sting
operation was said to have been considered by the cabinet which found it as a case of horse
trading and on the basis of the Governors report advised the President to impose his rule which
he did on 27th August.

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

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

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

I. ATTEMPT AT OERTHROWING DEMOCRATICALLY ELECTED GOVERNMENT

BY STATE

The petitioner puts forth to this honorable court that the Government at the centre had been
attempting to overthrow democratically elected Governments of oppositional parties by
unconstitutional means. Reference has been made to the situation where the Government of
Uparganj was overthrown by the Central Government. In pursuance of this, the Government
decided to take recourse to the emergency provisions contained in Article 356 which is exercised
only rarely. It is also submitted that the principles relating to judicial review of action under
Article 356 are well settled, having regard to various case laws cited.

II. PROCLAMATION DIRECTED AGAINST THE POWER EXERCISED BY THE

SPEAKER

It is also contended that this case involved a double whammy. The impugned Proclamation was
not only directed against the power validly exercised by the Speaker but an attempt was also
made to deprive him of his legislative power. The petitioner has also submitted to this court the
required material, therefore the burden to justify the action lies entirely on the Centre.

III. DEMOCRACY IS THE FORM OF GOVERNMENT EMBRACED UNDER THE

CONSTITUTION OF INDIA

The petitioner humbly argues before this esteemed court that democracy, with all its faults and
fallacies, still remains the best possible form of Government, and more importantly a system of
government that the people of India and given to themselves under its Constitution. Therefore, to
uphold the value of the principles of democracy the court may not throw out the writ petition
since the action of the Speaker was completely destructive of the very nature of democracy.
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IV. LACK OF INTENTION FOR CONCEALMENT OF REPRESENTATION

Finally, the petitioner would contend that there was nothing to benefit from concealment. Going
by the facts, Both the parties were unaware of it. Thus, it was a bona fide error which is
legitimate to happen in a hurry.
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ARGUMENTS ADVANCED

I. ATTEMPT AT OERTHROWING DEMOCRATICALLY ELECTED GOVERNMENT

BY STATE

It is the case of the petitioner to this esteemed court of justice that the Apelonian Nationalist
Party's Government at the Centre had been attempting to overthrow democratically elected
Governments belonging to the opposition political parties by unconstitutional means. It is the
case of the petitioner that the ruling Apelonian National Party at the Centre, in pursuance of its
scheme to overthrow the Government of the State, decided to take recourse to the emergency
provisions contained in Article 3561 in its desperation to topple the Government.

Therefore, the petitioner would humbly submit that the power under Article 356 is an emergency
power to be exercised rarely. It is an exceptional power. It is also submitted that the principles
relating to judicial review of action under Article 356 are well settled having regard to the
judgments of the Apex Court in the case of S.R. Bommai & others vs. Union of India & others2,
as also in the case of Rameshwar Prasad & others (VI) vs. Union of India & another 3, reported
in. Further, it is submitted that the floor test is the only test when it comes to assessing the
question whether a person commands the majority and the confidence of the House.

II. PROCLAMATION DIRECTED AGAINST THE POWER EXERCISED BY THE

SPEAKER

The petitioner would, next, contend that this is a case, which involves a double whammy. It is an
extra-ordinary case, where, by the impugned Proclamation, a blow has been dealt,
unconstitutional as it is, to the powers of the Speaker on the one hand and, on the other hand, to
the authority of the Governor himself. Expatiating on this point it is pointed out that the
Proclamation was directed against the power validly wielded and exercised by the Speaker under

1
INDIA CONST.
2
(1994) 3 S.C.C. 1.
3
(2006) 2 S.C.C. 1.
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the Tenth Schedule and the attempt was to deprive him of his legitimate power. Equally
becoming the victim of the Proclamation was the Governor himself, who had, through three
communications, the last being a Message under Article 175(2), directed the holding of the floor
test. The reasons, which have been trotted out, are not germane to the formation of the requisite
opinion under Article 355, without which, the Proclamation would have no legs to stand on. It is
submitted that the petitioner having produced the material, the burden was entirely on the Centre
to justify the action. It is submitted that the material and the averments in the counter affidavit
are clearly insufficient to sustain the Notification under Article 356. The petitioner would refer to
the Honorable court the following paragraphs of the judgment in Bommai's case 4 by Justice
Sawant:

"It is in the light of these other provisions relating to the emergency that we have to construe the
provisions of Article 356. The crucial expressions in Article 356(1) are - if the President, "on the
receipt of report from the Governor of a State or otherwise" "is satisfied" that "the situation has
arisen in which the Government of the State cannot be carried on "in accordance with the
provisions of the Constitution". The conditions precedent to the issuance of the Proclamation,
therefore, are: (a) that the President should be satisfied either on the basis of a report from the
Governor of the State or otherwise, (b) that in fact a situation has arisen in which the
Government of the State cannot be carried on in accordance with the provisions of the
Constitution. In other words, the President's satisfaction has to be based on objective material.
That material may be available in the report sent to him by the Governor or otherwise or both
from the report and other sources. Further, the objective material so available must indicate that
the Government of the State cannot be carried on in accordance with the provisions of the
Constitution. Thus the existence of the objective material showing that the Government of the
State cannot be carried on in accordance with the provisions of the Constitution is a condition
precedent before the President issued the Proclamation. Once such material is shown to exist,
the satisfaction of the President based on the material is not open to question, However, if there
is no such objective material before the President, or the material before him cannot reasonably
suggest that the Government of the State cannot be carried on in accordance with the provisions
of the Constitution, the Proclamation issued is open to challenge.

4
supra, note 2.
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It is further necessary to note that the objective material before the President must indicate that
the Government of the State "cannot be carried on in accordance with the provisions of the
Constitution". In other words, the provisions require that the material before the President must
be sufficient to indicate that unless a Proclamation is issued, it is not possible to carry on the
affairs of the State as per the provisions of the Constitution. It is not every situation arising in the
State but a situation which shows that the constitutional Government has become an
impossibility, whichalone will entitle the President to issue the Proclamation. These parameters
of the condition precedent to the issuance of the Proclamation indicate both the extent of and the
limitations on, the power of the judicial review of the Proclamation issued. It is not disputed
before us that the Proclamation issued under Article 356(1) is open to judicial review. All that is
contended is that the scope of the review is limited. According to us, the language of the
provisions of the Article contains sufficient guidelines on both the scope and the limitations, of
the judicial review."

III. DEMOCRACY IS THE FORM OF GOVERNMENT EMBRACED UNDER THE

CONSTITUTION OF INDIA

The petitioner would invoke the larger principles of democracy and federalism to contend that,
while a writ applicant can ordinarily be told off the gates if his conduct does not match with that
of a person seeking discretionary and extra-ordinary relief under Article 226, the present
petitioner may not be thrown out. It is submitted that democracy, with all its faults, is the system
of Government, which the people of India have embraced under the written Constitution. There
may be pitfalls; but howsoever imperfect it may be, it remains the best possible form of
Government. In the context of the need to uphold the values of democracy as also the upkeep of
the ideal of federalism, It is submitted that the Court may not throw out the writ petition on the
basis of a disputed sting operation. The petitioner's case is that the dispensation of Rule 53 by
invoking Rule 244 is a specific departure from the set procedure.

The petitioner would also like to place reliance on the judgments of the Apex Court in the cases
of State of Punjab vs. Satya Pal Dang & others5; Madras Bar Association vs. Union of India and

5
A.I.R. 1969 S.C. 903.
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another 6 ;Yitachu vs. Union of India & others 7 ; and K.A. Mathialagan vs. P. Srinivasan &
others8, all for the proposition that Article 212 cannot deprive even the courts when it comes to a
violation of a substantive nature or an infraction of a constitutional mandate. In this case, the
action of the Speaker was completely destructive of the very basis of democracy, namely, the
right to vote in the Assembly in accordance with the rules binding on the Speaker. The Speaker
cannot run riot. In fact, he referred to the judgments of the Apex Court in the cases of State of
Punjab vs. Satya Pal Dang & others9, as also K.A. Mathialagan vs. P. Srinivasan & others (Full
Bench); besides Yitachu vs. Union of India & others10.

IV. LACK OF INTENTION FOR CONCEALMENT OF REPRESENTATION

The petitioner would contend that the petitioner had nothing to gain by suppressing the
representation. It would appear that both, the petitioner and the respondents, were unaware of it.
The discovery came rather late in the course of hearing. Therefore, this is not a case, where the
representation was actually not produced, as was originally complained of by the first
respondent. But, even then, it is true that much greater care should have been taken. The case of
the petitioner is that it is a bona fide error, as is bound to happen when a case is prepared in a
tearing hurry.

6
(2014) 10 S.C.C. 1.
7
A.I.R. 2008 Gauhati 103.
8
A.I.R. 1973 Madras 371.
9
supra, note 5.
10
supra, note 7.
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PRAYER

Having submitted all of its Arguments and issues before the honorable Supreme Court, the
petitioner has the following prayer:

1. Fresh elections to take place in the State so that the CM can prove his majority.

2. Restoration and upkeep of the sanctity of democracy in the Union of Crosia.

The Petitioner rests the case before the Supreme Court for it to deliver justice.