1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20161

TEAM CODE: TC 14

IN THE HONBLE SUPREME COURT OF INDIANA

PETITION NO.______/2016
IN THE MATTER OF

MR. N. YADAV & ORS

Petitioner

V.

UNION OF INDIANA

Respondent

WRITTEN SUBMISSION ON BEHALF OF THE APPELENT

MEMORANDUM ON BEHALF OF APPELENT

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TABLE OF CONTENTS
PAGE NO
LIST OF ABBREVATIONS.
INDEX OF AUTHORITIES.
STAEMENT OF JURISDICTION
STATEMENT OF FACTS
ARGUMENT PRESENTED.
SUMMARY OF ARGUMENTS
AGUMENTS ADVANCED
PRAYER

LIST OF ABBREVATIONS
1. Govt.

Government
MEMORANDUM ON BEHALF OF APPELENT

3
4
8
9
11
13
14
21

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2. TDP
3. TRP
4. TPP
5. Const.
6. Art.
7. CM
8. MLA
9. S.C.
10. H.C.
11. SCC
12. SCR
13. AIR
14. Jan
15. Dec
16. V.
17. Ors
18. Etc.
19. i.e.
20. &

Tarunachal Democratic Party

Tarunachal Republic Party
Tarunachal Peoples Party
Constitution
Article
Chief Minister
Member of Legislative Assembly
Supreme Court
High Court
Supreme Court Cases
Supreme Court Reporter
All India Reporter
January
December
Versus
Others
Etcetera
That Is
And

INDEX OF AUTHORITIES
STATUTES
Constitution Of India, 1950
Sarkaria Commission
MM Punchi Commission

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TABLE OF CASES
1

Udai Narain Sinha V State Of Uttar Pradesh And Ors. on 23

January, 1986 [ AIR 1987 All 203]

Sri Surendra Mohanty V Sri Nabakrishna Choudhury

And ... on 26 February, 1958 [ AIR 1958 Ori 168, 1958
CriLJ 1055]

Bajirao Baliram Mali V The State Of Maharashtra on 3

September, 1976[(1977) 79 BOMLR 189]

[1973] Suppl. SCR 1

5
[2007] RD-SC 609 (17 May 2007)
6
Bajirao Baliram Mali V The State Of Maharashtra on 3
September, 1976 [(1977) 79 BOMLR 189]

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7
S.R.Bommai VS. Union of India [1994(2) SCR 644; AIR
1994 SC 1918]
8
AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE
37, (1994) 3 SCC 1, 1994 2 SCR 644
9
Surendra Vassant Sirsat Of ... V Legislative Assembly Of
State Of ... on 14 June, 1995 [AIR 1996 Bom 10, 1996 (2)
BomCR 362, (1995) 97 BOMLR 621]
10

Special Reference No. 1 of 1964.

BOOKS, ARTICLES, JOURNALS AND REPORTS

The Constitution of India 1950, Volume (1&2) , D.K. Basu

The Constitution of India 1950, O.P. Rai (2nd Edition)

Raj Mannar Committee 1969

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WEBSITES

www.indiakanoon.org
www.firstpost.com
www.livemint.com
www.legalserviceindia.com
www.lexisnexis.com
www.manupatra.com

NEWSPAPERS AND MAGZINES

The Times of India

The Hindu
Outlook
Frontline

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STATEMENT OF JURISDICTION

The petitioner humbly submits this memorandum for the petition filed before this Honorable
Court. The petition invokes Articles 174 and 356 of The Constitution of India 1950. It sets
forth and the laws on which the claims are based.

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STATEMENT OF FACTS
Tarunachal Pradesh is one of the twenty-nine states of the Republic of Indiana. The Political
Sphere of the State is controlled by three parties; namely Tarunachal Democratic Party
(TDP), Tarunachal Republic Party (TRP) and Tarunachal Peoples Party (TPP). TDP and TRP
have been recognized as the national parties by the Election Commission of Indiana. The
Legislative Assembly comprises of sixty members, directly elected by single seat
constituencies.
In the year 2011, 10th election to the Legislative Assembly of the State was conducted and the
Election Commission declared the result as follows: - TDP- 42 seats, TRP-11 seats, TPP-5
seats and others-2 seats. The TDP thereupon formed the government headed by, Shri. Rai
Prasad as Chief Minister.
The State of Tarunachal Pradesh was prospering well under the leadership of Rai Prasad but
things started turning bad when he started to shuffle the cabinet more than often. The
repeated shuffling let to the dissents within the ruling party. Rai Prasad also developed
strained relationship with J P Pandey who was appointed as the Governor on June, 2015, by
the Centre and almost half his MLAs were against him. On 9th December, 2015 a group of
rebel TDP MLAs approached JP Pandey seeking the impeachment of MR. N. Yadav, the
speaker of the legislative assembly who was the cousin of Rai Prasad. The rebel MLAs
accused him saying that he was trying to get them disqualified from the Assembly. The
Governor agreed that it was an urgent matter and by a notification dated 9 th December, 2015
he called for an emergency session of the Assembly on 16th December, 2015 to take up the
impeachment motion. The Assembly was originally slated to convene on 14th January, 2016.
The Special Session was held in a community hall and was presided over by the Deputy
Speaker Mr. V.K. Punia who was believed to be on the anti-CM side. The session was
attended by 20 MLAs of TDP, 11 MLAs of TRP and 2 independent MLAs. These rebel

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MLAs passed the impeachment motion and the session also made no-confidence motion
against the C.M. Rai Prasad. The House elected Prem Chand as the new leader of the House.
The speaker in reciprocation issued an order disqualifying 14 rebel TDP MLAs and on 17 th
December, 2015 and moved to High Court under Art 226 challenging the constitutional
validity of the notification issued by the governor and also ousting of the C.M. Another writ
petition was filed by MLAs to set aside the order of the Speaker.
The Honorable High Court said prima facie the notification appeared to be violation of Art
174 and 175 of the Constitution but, hearing the writ petition of MLA, the Court, set aside the
order of the Speaker in which he had disqualified the membership of 14 MLAs.
The speaker thereafter moved Supreme Court alleging that he had filed an interim application
on the judicial side by seeking recusal of justice A.B.Sharma from hearing his plea in the
High Court. Having been aggrieved by the orders of the High Court of Tarunachal Pradesh all
the parties to the litigation approached the Supreme Court. While the Supreme Court referred
the case to the Constitution Bench, the Governor sent a report to the Union Cabinet seeking
the imposition of the Presidents Rule on account of political instability in the State. The TDP
however moved to the Supreme Court challenging the Union Cabinets move to recommend
the Presidents Rule in Tarunachal Pradesh. The President of Indiana later on signed a
Proclamation under Article 356(1) of the Constitution, imposing Presidents Rule in the State
of Tarunachal Pradesh.

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ARGUMENTS PRESENTED
1) WHETHER GOVERNOR HAS THE POWER TO CONVENE THE
ASSEMBLY SESSION WITHOUT THE AID AND ADVICE OF THE
GOVERNMENT?
A. WHETHER GOVERNOR HAS POWER TO ADVANCE THE
ASSEMBLY SESSION?
B. WHETHER GOVERNMENT HAS POWER TO INTERFERE WITH
THE POWERS OF THE GOVERNOR?

2) WHETHER PRESIDENTS RULE IN THE STATE COULD BE

IMPOSED DESPITE ONGOING LITIGATION BEFORE THE
CONSTITUTION BENCH?
A. WHEN

IS

PRESIDENTS

RULE

APPLICABLE

UNDER

CONSTITUTION?

3) WHETHER GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF

THE STATE ASSEMBLY AMOUNTS TO CONSTITUTIONAL
BREAKDOWN AND THUS CALLS FOR IMPOSITION OF
PRESIDENTS RULE?
A. WHAT IS CONSTITUTIONAL BREAKDOWN?
B. DOES CONSTITUTIONAL BREAKDOWN CALL FOR IMPOSITON
OF PRESIDENTS RULE?

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4) WHETHER THE IMPEACHMENT MOTION PASSED BY THE

LEGISLATIVE ASSEMBLY WAS VALID?

SUMMARY OF ARGUMENTS
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1. The counsel humbly submits before the honorable court that the
Governor does not have the power to convene the Assembly session
without the aid and advice of the Government until and unless there
is a gap of six months between the two sessions of the Assembly as
per Article 174(1) of the Constitution.
2. The counsel humbly submits before the honorable court that as per
Article 145(3) of the Constitution Supreme Court has already
formed a five judge bench, referred as Constitution Bench to decide
the cases involving substantial question of law as to the
interpretation of the constitution, therefore there was no question of
imposing Presidents Rule in the state despite ongoing litigation in
Constitution Bench.
3. The counsel humbly submits before the honorable court that as per
Article 352 of the Constitution neither the security of the state was
threatened nor the house was dissolved on the gap of six months
between the two sessions of the State Assembly. Therefore there was
no constitutional breakdown and thus Presidents Rule could not be
imposed.
4. The counsel humbly submits before the honorable court that a
member holding office as a Speaker or a Deputy Speaker cannot be
removed from office unless at least a fourteen days notice has been
given for the intention to remove him from the office under Article
179(c) of the Constitution.

ARGUMENTS ADVANCED

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1.] WHETHER GOVERNOR HAS POWER TO CONVENE THE ASSEMBLY

SESSION WITHOUT THE AID AND ADVICE OF THE GOVERNMENT?
The Counsels humbly submits before the Honorable Court that the Governor does not have
the power to convene the Assembly session until and unless a gap of six months do not
intervene between the last sitting in one session and the date appointed for its first sitting in
the next session.

A. WHETHER GOVERNOR HAS POWER TO ADVANCE THE

ASSEMBLY SESSION?
It is humbly submitted before the honorable Court that advancing the winter Session of
the State Assembly by a month despite the protest by the government prima facie is
violation of Articles 174 and 175 of the Constitution dealing with convening of the
Session by the Governor and his message to the House. As per article 174 (1) of The
Constitution, the Governor shall from time to time summon the House or each House of
the Legislature of the state to meet at such time and place as he thinks fit, but six months
shall not intervene between its last sitting in one session and the date appointed for its
first sitting in the next session1.
In the present case, where Governor advanced the Winter Session of the Assembly by a
month appeared to be violation of Articles 174 and 175 of the Constitution and for that
purpose any motion passed in the House was not to be considered.

B. WHETHER GOVERNMENT HAS POWER TO INTERFERE WITH

THE POWERS OF THE GOVERNOR?
According to article 194 of the constitution every house of legislature and its members enjoy
certain powers and privileges under which they cannot be held liable to any proceeding in
any court in respect of anything said or any vote given by him in the Legislature or any

1 Udai Narain Sinha V State Of Uttar Pradesh And Ors. on 23 January, 1986[ AIR 1987 All 203]

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committee thereof2. The interference of governor in the affairs of the legislative assembly can
prevent it from performing its function properly.
Governor, though being a part of the legislature in an overall scheme has restricted powers
and could not send messages to regulate compositions of the state assembly or its proceedings
or order items of agenda. Assailing the role of the governor for sending messages of the state
assembly and advance its convening to December 16 as against the scheduled assembling on
January 14, the counsel submits that, there is no power vested in the government by the
constitution to pre-pone the assembly session.
Assailing to governors decision to advance the assembly session which was held in
community hall, the Counsels want to say that the constitutional functionary cannot convene,
prorogue or dissolve the house in his discretion and under the constitutional scheme, he has to
act on the aid and advice of the chief minister and his council of ministers i.e. government.

2.] WHETHER PRESIDENTS RULE IN THE STATE CAN BE

IMPOSED DESPITE ONGOING LITIGATION BEFORE THE
CONSTITUTION BENCH?
The counsel humbly submits before the honorable court that the power under Article 356(1)
is an emergency provision but not an absolute power. An emergency is a situation which
needs a remedial action. In the present case of Tarunachal Pradesh, the Government was not
collapsed but was facing some internal disturbances which could have been sorted by the
Constitution bench. A Constitution bench is court which sits to decide any case involving
substantial question of law as to the interpretation of the Constitution. This provision has
been mandated under Article 145(3) of the Constitution. Therefore, when the case was
already ongoing in Constitution bench, there was no need to impose Presidents rule in the
state. The Constitution bench has decided several landmark cases such as A.K. Gopalan v.

2 Sri Surendra Mohanty V Sri Nabakrishna Choudhury And ... on 26 February, 1958[ AIR 1958 Ori 168, 1958
CriLJ 1055]

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State of Madras3, Kesavananda Bharati v. State of Kerala4 and Ashoka Kumar Thakur v.
Union of India5.
A. WHEN

IS

PRESIDENTS

RULE

APPLICABLE

UNDER

CONSTITUTION?
As per Article 356 of Constitution
1. If the President, on receipt of report from the Governor of the State or otherwise, is
satisfied that a situation has arisen in which the government of the State cannot be
carried on in accordance with the provisions of this Constitution, the President may by
Proclamationassume to himself all or any of the functions of the Government of the State and

a.)

all or any of the powers vested in or exercisable by the Governor or any body or
b.)

authority in the State other than the Legislature of the State;

declare that the powers of the Legislature of the State shall be exercisable by or

c.)

under the authority of Parliament;

make such incidental and consequential provisions as appear to the president to be
necessary or desirable for giving effect to the objects of the Proclamation,
including provisions for suspending in whole or in part the operation of any
provisions of this constitution relating to anybody, or authority in the State
Provided that nothing in this clause shall authorize the President to assume to
himself any of the powers vested in or exercisable by a High Court, or to suspend
in whole or in part the operation of any provision of this Constitution relating to

High Courts.
2. Any such Proclamation may be revoked or varied by a subsequent Proclamation
3. Every Proclamation issued under this article except where it is a Proclamation
revoking a previous Proclamation, cease to operate at the expiration of two months
unless before the expiration of that period it has been approved by resolutions of both
Houses of Parliament Provided that if any such Proclamation (not being a
Proclamation revoking a previous Proclamation) is issued at a time when the House of
the People is dissolved or the dissolution of the House of the People takes place
3 [1950] SCR 88
4 [1973] Suppl. SCR 1
5 [2007] RD-SC 609 (17 May 2007)

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during the period of two months referred to in this clause, and if a resolution
approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House of the
People before the expiration of that period, the Proclamation Shall cease to operate at
the expiration of thirty days from the date on which the House of the People first sits
after its reconstitution unless before the expiration of the said period of thirty days a
resolution approving the Proclamation has been also passed by the House of the
People.
In the present case, it may be noted that such a grave emergency did not exist where,
Governor had to report the matter to President for imposition of Presidents Rule that too
without seeking the advice of his Council of Ministers.

3.] WHETHER GAP OF SIX MONTHS BETWEEN TWO

SESSIONS OF THE STATE ASSEMBLY AMOUNTS TO
CONSTITUTIONAL BREAKDOWN AND THUS CALLS FOR
IMPOSITION OF PRESIDNTS RULE?
The counsel humbly submits that as per Article 352 of the Constitution, neither the security of
the State was threatened nor the House was dissolved on the gap of six months between the
State Assembly.6 Instead the session was advanced by one month in the present case.

A. WHAT IS CONSTITUTIONAL BREAKDOWN?

It is humbly submitted before the honorable Court that a Constitutional crisis occurs when
Government of a State fails to work in accordance with the provisions of the Constitution.
In the present case, there was administrative breakdown and not constitutional breakdown
as only some of the members of the Assembly had been disqualified and disqualification
of few MLAs does not lead to Constitutional breakdown.7

6 Bajirao Baliram Mali V The State Of Maharashtra on 3 September, 1976 [(1977) 79 BOMLR 189]
7 S.R.Bommai VS. Union of India [1994(2) SCR 644; AIR 1994 SC 1918]

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B. WHETHER

CONSTITUTIONAL

BREAKDOWN

CALLS

FOR

IMPOSITION OF PRESIDENTS RULE?

It is humbly submitted before the honorable Court that a Proclamation of emergency can be
made for internal disturbance only if it is created by armed rebellion, neither such
Proclamation can be made for internal disturbance caused by any other situation nor a
Proclamation can be issued under Article 356 unless the internal disturbance gives rise to a
situation in which the Government of the State cannot be carried on in accordance with the
provisions of the Constitution. A mere internal disturbance short of armed rebellion cannot
justify a Proclamation of emergency under Article 352 nor such disturbance can justify
issuance of Proclamation under Article 356(1), unless it disables or prevents carrying on of
the Government of the State in accordance with 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, which alone will entitle the President to issue the
Proclamation.
Also, the Counsel may like to draw the attention of the honorable court towards the election
of Prem Chand as the new leader of the House. If the new leader was appointed there was no
provision for the failure of constitutional machinery, instead there was breakdown of
administrative machinery. In S.R. Bommai case8, the honorable court held that Article 365
was justified only when there is breakdown of constitutional machinery and not that of
administrative machinery.
In the light of the favour of the above argument the counsel may like to state that no
emergency session can be called unless and until there is a gap of six months between the two
sessions of the House as declared under Article 352(5) of the Constitution.
In the present case, there was no constitutional breakdown that could call for imposition of
Presidents Rule as the internal disturbances had neither created a situation where
Government was not working according to the provisions of the House nor was created by
some armed rebellion.

8 AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644

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4.] WHETHER THE IMPEACHEMENT MOTION PASSED BY THE

LEGISLATIVE ASSEMBLY IS VALID?
The counsel humbly submits before the honorable Court that the impeachment motion passed
by the Legislative Assembly in the Special Session called by the governor was violation of
Article 212 of the Constitution.
As per Article 212 of the Constitution:
1) The validity of any proceedings in the Legislature of a state shall not be called in
question on the ground of any alleged irregularity of procedure.
2) No office or member of the Legislature of a State in whom powers are vested by or
under this constitution for regulating procedure or the conduct of business, or for
maintenance order in the Legislature shall be subject to jurisdiction of any court in
respect of the exercise by him of those powers9.
The Counsels would like to draw the attention of the court towards the judgment where it was
held that validity of any proceedings of a State could not be called in question on the ground
of any alleged irregularity of procedure10. The impeachment motion passed by the house was
based on unproven allegations against the petitioner that he was trying to disqualify the
MLAs of the assembly.
According to Article 179(c) of the Constitution, a member holding office as the Speaker or
the deputy speaker of an Assembly, may be removed from his office by a resolution of the
Assembly passed by a majority of all the then members of the Assembly, provided that no
resolution for this purpose shall be moved unless at least fourteen days notice has been given
of the intention to move the resolution, provided further that, whenever the Assembly is
dissolved, the Speaker will not vacate his office until immediately before the first meeting of
the Assembly after the dissolution.
As per Article 192 (1) of the Constitution, if any question arises as to whether a member of a
House of the Legislature of a State has become subject to any of the disqualifications
9 Surendra Vassant Sirsat Of ... V Legislative Assembly Of State Of ... on 14 June, 1995 [AIR 1996 Bom 10,
1996 (2) BomCR 362, (1995) 97 BOMLR 621]

10 Special Reference No. 1 of 1964

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mentioned in clause (1) of Article 191, the question shall be referred for the decision of the
Governor and his decision shall be final. Therefore, instead of calling for an emergency
session, the Governor could have suspended the order of the members of the House.
In the present case, Governor did not have power to question the decisions taken by the
Speaker or it would be violation of Article 212 of the Constitution. The Counsel would also
like to submit that, in present case no fourteen days notice was given to the Speaker before
passing an impeachment motion against him which appeared to be violation of Article 179(c)
of the Constitution.

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PRAYER FOR RELIEF

In the light of the facts stated, arguments advanced & authorities cited, the petitioner,
humbly prays before the Honorable Court, to be graciously pleased to,

Pass an order to remove Presidents rule from the State or pass any order, which the court
may deem fit in the light of justice, equity and good conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever.

Sd/-..
(Counsel for the Appellant)

MEMORANDUM ON BEHALF OF APPELENT