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

4th RGNUL National Moot Court Competition, 2015 4TH RGNUL NATIONAL MOOT COURT COMPETITION, 2015

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IN THE FEDERAL COURT OF HINDISTAN Petition No. ______of 2015 (Art. 131 of the Constitution of Hindistan, 1950 read with Order XV, Rule 1, Federal Court Rules, 2013) Province of Gatoch……………………………………………………………………Petitioner VERSUS Federation of Hindistan……………………………………………………………..Respondent Petition No.______ of 2015 (Art. 131 of the Constitution of Hindistan, 1950 read with Order XV, Rule 1, Federal Court Rules, 2013) Mr. Champak Khangotra……………………………………………………………Petitioner VERSUS Federation of Hindistan……………………………………………………………..Respondent Petition No.______ of 2015 (Art. 131 of the Constitution of Hindistan, 1950 read with Order XV, Rule 1, Federal Court Rules, 2013) Mr. Somesh Haider…………………………………………………………………Petitioner VERSUS Federation of Hindistan……………………………………………………………..Respondent

MOST RESPECTFULLY SUBMITTED, COUNSELS APPEARING ON BEHALF OF THE PETITIONERS. Page 1 of 29

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TABLE OF CONTENTS List of Abbreviations ................................................................................................................. 4 Index of Authorities ................................................................................................................... 5 Statement of Jurisdiction............................................................................................................ 8 Statement of Facts ...................................................................................................................... 9 Issues Raised ............................................................................................................................ 11 Summary of Arguments ........................................................................................................... 12 ARGUMENTS ADVANCED ................................................................................................. 14 I. THE PROVINCIAL LEGISLATURE HAD THE LEGISLATIVE COMPETENCE TO ENACT THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014. ...................................................... 14 [A]. The 2014 Act is within the purview of the State List. ............................................ 14 [B]. The 2014 Act is, in pith and substance, a legislation dealing with incorporation and regulation of GKSMB. ..................................................................................................... 15 [C]. The nature of encroachment of the 2014 Act upon the powers of KSMB is only incidental.......................................................................................................................... 17 II. THE GOVERNOR HAD DISCRETION IN RESERVING THE BILL FOR THE ASSENT OF THE PRESIDENT AND THE FEDERAL GOVERNMENT HAD

NO

COMPETENCE

TO

DIRECT THE

GOVERNOR IN THIS REGARD .............................................................................................. 17 [A]. The Governor had discretion in the reservation of the bill in question for the assent of the President. ............................................................................................................... 17 [B]. The Federal Government was not competent to issue directions to the Governor to reserve the bill for the assent of the President. ................................................................ 20 III. THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE PROVINCIAL GOVERNMENT

TO

REFRAIN

FROM NOTIFYING

THE DATE

OF

COMMENCEMENT OF AN ACT PASSED BY THE STATE LEGISLATURE. .............................. 21 [A]

Such power cannot be exercised by the Federal Government in light of the lack of

an existing Federal law on the subject. ........................................................................... 21

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[B]. This action amounts to a violation of the principle of federalism enshrined in the constitution....................................................................................................................... 22 IV. REMOVAL OF THE GOVERNOR WAS UNCONSTITUTIONAL. ........................................ 23 [A]. The removal is against Federal principles. ........................................................... 23 [B]. The exercise of pleasure under Art. 156(1) was arbitrary .................................... 24 V. DISMISSAL OF THE GOVERNMENT OF GATOCH WAS UNCONSTITUTIONAL. ................ 26 [A]. The Government of Gatoch was dismissed without following requisite procedure 26 [B]. The Government of Gatoch was dismissed with a mala fide intention .................. 27 PRAYER .................................................................................................................................. 29

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LIST OF ABBREVIATIONS

¶

Paragraph

A.P.

Andhra Pradesh

AIHC

All India High Court Cases

AIR

All India Reporter

Art.

Article

Cal

Calcutta

cl.

clause

ed.

Edition

FCR

Federal Court Reports

GKSMB

Gatoch Kormi Shrines Management Board

No.

Number

Pat

Patna

PC

Privy Council

SC

Supreme Court

SCC

Supreme Court Cases

Sec.

Section

v.

Versus

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INDEX OF AUTHORITIES

I. CASES 1. A.G. Saskatchewan v. A.G. Canada, (1949) A.C. 110. 2. A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27. 3. A.K. Roy v. Union of India, A.I.R. 1982 S.C. 710. 4. Ashok v. Chancellor, Kerala Veterinary and Animal Sciences University, (2011) S.C.C. 3515. 5. Association Of Leasing & Financial Service Companies v Union Of India, (2011) 2 S.C.C. 352. 6. Asst. Commr. Of Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd., A.I.R. 1970 S.C. 169. 7. Azad v. State of Assam, A.I.R. 1958 A.P. 619. 8. B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331. 9. Biman Chandra Bose v. H.C. Mukherjee, A.I.R. 1952 Cal 799. 10. Board of Revenue v. Jhaver, A.I.R. 1968 S.C. 59. 11. Brij Mohan Lal v. Union of India, (2012) 6 S.C.C. 502. 12. Chaturbhai M. Patel v Union of India, A.I.R. 1960 S.C. 424. 13. Devji Vallabhai Tandel v. Administrator, A.I.R. 1982 S.C. 1029. 14. Dharam Dutt v. Union of India, A.I.R. 2004 S.C. 1295. 15. Elel Hotels and Investments Ltd. v. Union of India, A.I.R. 1990 S.C. 1664. 16. Gallaghar v. Lymn, (1937) A.C. 863 (870). 17. Govind Anantrao Upadhya v. State of Maharashtra, A.I.H.C. 2001 Bom 1972. 18. Gullapalli Nageswara Rao v. A.P. State Road Transport Corpn., A.I.R. 1959 S.C. 308. 19. Hargovind Pant v. Dr.Raghukul Tilak, A.I.R. 1979 S.C. 1109. 20. Harla v. State of Rajasthan, A.I.R. 1951 S.C. 467. 21. Hoechst Pharmaceuticals v. State of Bihar, A.I.R. 1983 S.C. 1019. 22. I.C. Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643. 23. India Cements Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 12. 24. Iswari Khetan Mills v. State of U.P., A.I.R. 1980 S.C. 1955. 25. Jay Engineering Works v. State of West Bengal, A.I.R 1968 Cal 407. 26. Jayantilal Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648. 27. Joshi v. Ajit Mills, Ahmedabad, A.I.R. 1977 S.C. 2279. Page 5 of 29

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28. KC Gajapati Narayan Deo v. State of Orissa, A.I.R. 1953 S.C. 375. 29. Kesavananda Bharati v. Union of India, A.I.R. 1973 S.C. 1461. 30. Kishansing Tomar v. Municipal Corporation Of The City Of Ahmedabad, A.I.R. 2007 S.C. 269. 31. Kishori v. The King, (1950) F.C.R. 650 (653). 32. KSE Board v. Indian Alumminium Company, A.I.R. 1976 S.C. 1031. 33. Kuldip Nayar v. Union of India, A.I.R. 2006 S.C. 3127. 34. Manoj Narula v. Union of India, (2014) 9 S.C.C. 1. 35. Om Prakash Bhatt v State of Uttar Pradesh, 1996 Indlaw S.C. 1077. 36. Pankaj Jain Agencies v. Union of India, A.I.R. 1995 S.C. 360. 37. Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, [1947] F.C.R. 28. 38. Raja Jagannath Baksh Singh v. State of U.P., A.I.R. 1962 S.C. 1563. 39. Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980. 40. S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. 41. Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192. 42. Satya Narain Shukla v. Union of India, A.I.R. 2006 S.C. 2511. 43. Second G.T.O., Mangalore v. DH Nazareth, A.I.R. 1970 S.C. 999. 44. Seth Banarsi Das v. W.T.O., Meerut, A.I.R. 1965 S.C. 1387. 45. Sharma Transport v. State of Andhra Pradesh, A.I.R. 2002 S.C. 322. 46. Shree Rajkot District Cooperative Milk Producers Union Ltd. v. Bhanubhai Labhubhai Mehta, (2014) S.C.C. 1248. 47. Sita Ram Sharma v. State of Rajasthan, A.I.R. 1974 S.C. 1373. 48. Southern Pharmaceuticals and Chemicals v. State of Kerela, A.I.R. 1981 S.C. 1863. 49. State of Bombay v Narothamdas Jethabai, 1950 Indlaw S.C. 54. 50. State of Bombay v. Balsara, A.I.R. 1951 S.C. 318. 51. State of Karnataka v. Ranganatha Reddy, A.I.R. 1978 S.C. 251. 52. State of Rajasthan v. G. Chawla, A.I.R. 1959 S.C. 544. 53. State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361. 54. Sunderlal Patwa v. Union of India, A.I.R. 1993 M.P. 214. 55. Syed Gulzar Hussain v. Dewan Syed Ale Rasul Ali Khan, 2014 Indlaw SC 102. 56. The Automobile Transport (Rajasthan) Limited v. State of Rajasthan, A.I.R. 1962 S.C. 1406. 57. The Durgah Committee, Ajmer v. Syed Hussain Ali, A.I.R. 1961 S.C. 1402.

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58. Trustees Of H.E.H. Nizam’s Pilgrimage Money Trust, Hyderabad v. The Collector Of Estate Duty, A.I.R. 1998 S.C. 2492. 59. Ujagar Prints v. Union of India, A.I.R. 1989 S.C. 516. 60. Union of India v. H.S. Dhillon, A.I.R. 1972 S.C. 1061. 61. Union of India v. Shah Goverdhan L. Kabra Teacher’s College, A.I.R. 2002 S.C. 3675. 62. United Provinces v. Aliqa Begum, A.I.R. 1941 P.C. 16. 63. Vedire Venkata Reddy v. Union of India, A.I.R 2004 A.P. 234 64. Vidyasagar Singh v. Krishana Ballabha Sahay, A.I.R. 1965 Pat 321. II. STATUTES 1. PUNJAB REORGANISATION ACT, 1966. 2. THE CONSTITUTION OF INDIA, 1950. III. BOOKS 1. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA (8th edn. 2010). 2. BLACK’S LAW DICTIONARY (2nd edn. 1910).

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STATEMENT OF JURISDICTION

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

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

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

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STATEMENT OF FACTS

BACKGROUND Hidamb is a province in the Federal Republic of Hindistan. Kormi, a religion, is a majority in Hidamb, constituting 60% of its population. However, it is a minority in the Federal Republic of Hindistan, constituting a mere 2% of the national population. Upto 1925, the Mahants managed Kormi religious shrines, present across the country. However, there were widespread allegations of corruption against them and it was also alleged that they had registered the properties of Kormi Shrines in their own names. A movement was then started by the Kormi community members to take over the control of Kormi shrines from the Mahants, which consequently led to the enactment of the Kormi Shrines Act, 1925. This Act provided for the management of Kormi Shrines through constitution of management committees at the local level and a central board called Kormi Shrines Management Board (KSMB). This board was given the power to control local committees and to bring the management of a particular shrine under its direct control. REORGANISATION OF HIDAMB In 1966, the Province of Hidamb was reorganised by the Hidamb Province Reorganisation Act, 1966, and a new Province, Gatoch, was carved out of it. Section 72 of the Reorganisation Act provided for the maintenance of status quo regarding the functioning of all inter-state body corporates. However, it stated that these bodies would be amenable to the directions of the Federal Government regarding their functioning, till the time other provisions of law are not made in this regard. Per Sec. 72(3), these rules would be applicable to the Kormi Shrine Management Board. THE GATOCH KORMI SHRINES MANAGEMENT ACT After reorganisation, the KSMB had effective control over the management of Kormi Shrines in Gatoch. However, there were complaints about the lack of representation of Kormis from Gatoch on the Board, leading to their grievances not being taken care of. Addressing the demand of its Kormis, on May 10, 2014, the Provincial Legislature of Gatoch enacted the Gatoch Kormi Shrines Management Act, 2014 (GKSM Act), which created an independent body, Gatoch Kormi Shrines Management Board (GKSMB) to administer Kormi Shrines in Gatoch. Similar laws existed in other Provinces for the management of their Kormi Shrines. Page 9 of 29

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NATIONAL KORMI SHRINES MANAGEMENT BILL Backed by the demand of three provinces, a registered society, the Kormi Intellectuals Forum (KIF), started a movement calling for a national level body to administer all Kormi Shrines in Hindistan. Accordingly, the House of People of the Federal legislature passed a Bill, National Kormi Shrines Management Bill, 2014, on May 16, 2014, to create a national level body for the regulation of all Kormi shrines in Hindistan, including those in Hidamb and Gatoch. However, before the bill could be passed by the Council of States, the House of People was dissolved on May 18, 2014, and a new government came to power at the federal level. FEDERAL GOVERNMENT’S DIRECTIONS TO THE GOVERNOR On June 10, 2014, the new federal government directed the Governor, Mr. Champak Khangotra, to not give his assent to the bill as it was in the process of enacting a national law on the subject and on account of reports of communal violence in Hidamb. Subsequently, on June 16, 2014, they wrote a letter to the Governor, directing him to reserve the bill for the President’s assent. However, on June 18, 2014, the Governor gave his assent to the Bill. The Act was to become applicable from any such date as may be notified by the Gatoch Government for its commencement. On June 30, 2014, the Governor was removed from his office by the President of Hindistan and a new Governor was appointed. On July 2, 2014, the Federal Government directed the Gatoch Government to refrain from notifying the date of commencement of the Act. IMPOSITION OF PRESIDENT’S RULE IN GATOCH Elections to municipalities had not been held in Gatoch, despite their tenure having ended on January 1, 2014. The Governor submitted a report to the Federal Government on February 1, 2014, recommending the dismissal of the Gatoch Government owing to a failure of its constitutional machinery due to a failure to conduct municipal elections before the expiry of their tenure. On April 15, 2014, the Federal Government wrote a letter to the Provincial Government, directing them to conduct municipal elections immediately. The Provincial government replied that they would do so as early as possible, but needed time to prepare. However, elections were not conducted till date and based on the Governor’s report, the Government of Gatoch was dismissed on October 10, 2014 by a Presidential Proclamation, and President’s Rule was imposed with immediate effect. The House of People and the Council of States approved the Proclamation on November 25, 2014 and November 28, 2014 respectively.

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ISSUES RAISED

I. WHETHER THE PROVINCIAL GOVERNMENT OF GATOCH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014? II. WHETHER THE GOVERNOR HAS DISCRETION IN RESERVING A BILL FOR THE ASSENT OF THE PRESIDENT AND WHETHER THE FEDERAL GOVERNMENT IS COMPETENT TO DIRECT THE GOVERNOR TO RESERVE THE BILL FOR PRESIDENTIAL ASSENT? III. WHETHER THE FEDERAL GOVERNMENT IS COMPETENT TO ISSUE DIRECTIONS TO THE PROVINCIAL GOVERNMENT OF GATOCH TO REFRAIN FROM NOTIFYING THE DATE OF COMMENCEMENT OF AN ACT PASSED BY THE PROVINCIAL LEGISLATURE? IV. WHETHER THE REMOVAL OF THE GOVERNOR IS AGAINST FEDERAL PRINCIPLES AND UNCONSTITUTIONAL? V. WHETHER THE DISMISSAL OF THE GOVERNMENT OF GATOCH WAS WITHOUT FOLLOWING REQUISITE PROCEDURE AND WITH MALA FIDE INTENTIONS?

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SUMMARY OF ARGUMENTS

I. THE PROVINCIAL LEGISLATURE

OF

GATOCH

HAD THE LEGISLATIVE COMPETENCE TO

ENACT THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014.

The Provincial Legislature of Gatoch is empowered to legislate upon matters to do with the maintenance and administration of Kormi Shrines in Gatoch per entries 7 and 32 of the State List. The legislation in question (GKSMA) is, in its pith and substance, a legislation that deals with the maintenance and administration of Kormi Shrines in Gatoch. Therefore, any encroachment upon the functioning of the Kormi Shrines Management Board, an inter-state body corporate, is only incidental and ancillary to the main purpose of the legislation. Therefore, this cannot be a reason to remove it from the legislative reach of the Provincial Legislature.

II. THE GOVERNOR HAD DISCRETION IN CHOOSING TO RESERVE THE BILL FOR THE ASSENT OF THE PRESIDENT AND THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO DIRECT HIM IN THIS REGARD.

The office of the Governor is an independent Constitutional office. The Governor is required to exercise his personal discretion in choosing to reserve a bill for the assent of the President. His powers under Art. 200 of the Constitution must also be interpreted in this manner. Notwithstanding the need for discretion in certain cases, the Governor is typically bound by the advice of his Council of Ministers in the exercise of his executive functions. However, there are no Constitutional provisions that sanction such an interaction between the Governor and the Union Government. It has been held that the Governor holds his office independent from the Union Government and is not amenable to directions given by them. Therefore, he was not bound by the directions of the Federal Government in the present case and could exercise his discretion.

III. THE FEDERAL GOVERNMENT

WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE

PROVINCIAL GOVERNMENT TO NOT NOTIFY THE DATE OF COMMENCEMENT OF THE ACT.

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Art. 257(1) of the Constitution allows the Union Government to issue directions to States regarding the exercise of their executive power in cases where it may potentially derogate upon the Union Government’s exercise of power. However, this isn’t possible in the present case since there isn’t an existing Federal law on the matter of the management and administration of Kormi shrines in Hindistan. Additionally, the spirit of federalism, which forms a part of the basic structure of the Constitution, is violated by this action of Federal interference in the legitimate exercise of executive power by the Province of Gatoch.

IV. THE

DISMISSAL OF THE

GOVERNOR

IN THE PRESENT CASE WAS IN VIOLATION OF

FEDERAL PRINCIPLES AND WAS UNCONSTITUTIONAL.

Federal principles, which include maintenance of respect for the political independence of States in the Union, are enshrined in the Constitution. The Governor forms an integral part of the State Legislature and the executive power of the State is also vested in him. Thus, his dismissal due to his non-compliance with directions from the Federal Government, which he was not bound by, amounts to a violation of federal principles. Additionally, the exercise of pleasure by the President, based on which the Governor holds his office, must be subject to the fundamentals of Constitutionalism. In the present case, the removal of the Governor was without any valid reason and in violation of the principle of audi alteram partem. This constitutes an arbitrary exercise of power, and therefore renders it unconstitutional.

V. THE DISMISSAL OF THE GOVERNMENT OF GATOCH WAS WITHOUT FOLLOWING REQUISITE PROCEDURE AND WAS WITH MALA FIDE INTENT.

The proclamation to dismiss a Government must be placed before both houses of Parliament and must be approved by them. In the present case, the government was dismissed before the proclamation was approved by both houses of parliament, and so requisite procedure was not followed. The use of Art. 356 of the Constitution for political gains of the Federal Government does amount to mala fide intent, as is seen in the present case. Additionally, there is a mala fide intention that can be gleaned from the Governor’s report. This is because he wrongly posits that the Provincial Government is bound to conduct municipal elections in the Province. Thus, there is no failure of Constitutional machinery in Gatoch that sanctions the dismissal of the Government in the present case. Page 13 of 29

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ARGUMENTS ADVANCED At the outset, it is submitted that the Constitution of India is analogous to the Constitution of Hindistan. Furthermore, the Kormi Shrines Act, 1925, is analogous to the Sikh Gurdwaras Act, 1925.1 Consequently, the Shiromani Gurudwaras Prabhandak Committee, established under the Sikh Gurdwaras Act, is analogous to the Kormi Shrines Management Board in the present case. I. THE PROVINCIAL LEGISLATURE HAD THE LEGISLATIVE COMPETENCE TO ENACT THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014. 1.

In the present case, the Province of Gatoch enacted the Gatoch Kormi Shrine

Management Act, 2014 (hereinafter “2014 Act”). The same establishes a body corporate – Gatoch Kormi Shrine Management Board (hereinafter, GKSMB) – the object of which is to administer Kormi Shrines in the Province of Gatoch.2 Prior to such enactment, Kormi Shrines in Gatoch were administered by Kormi Shrine Management Board (hereinafter, KSMB). It is submitted that the Provincial Legislature of Gatoch had the legislative competence to enact the 2014 Act as: firstly, the 2014 Act is within the purview of List II in the Seventh Schedule (hereinafter “State List”) [A]; secondly, the 2014 Act is, in pith and substance, a legislation dealing with incorporation and regulation of GKSMB [B] and; thirdly the nature of encroachment of the 2014 Act upon the powers of KSMB is only incidental [C]. [A]. 2.

THE 2014 ACT IS WITHIN THE PURVIEW OF THE STATE LIST.

Per Art. 2453 and Art. 2464 of the Constitution, the Legislature of a State has exclusive

authority to enact legislations with respect to any of the matters enumerated in the State List. 3.

Under Entry 7 of the State List,5 a State legislature is competent to legislate on matters

related to places of pilgrimage. The impugned legislation in the present case is related to management of Kormi Shrines. Shrines, as has been recognized on various occasions by the Supreme Court, are places of pilgrimage.6 Furthermore, under Entry 32 of the State List,7 a

1

Factsheet, ¶ 18. Factsheet, ¶ 7 line 8. 3 INDIA CONST. art. 245, cl. 1. 4 INDIA CONST. art. 246, cl. 3. 5 “Pilgrimages, other than pilgrimages to places outside India.” 6 The Durgah Committee, Ajmer v. Syed Hussain Ali, A.I.R. 1961 S.C. 1402; Om Prakash Bhatt v State of Uttar Pradesh, 1996 Indlaw S.C. 1077; Trustees Of H.E.H. Nizam’s Pilgrimage Money Trust, Hyderabad v. The Collector Of Estate Duty, A.I.R. 1998 S.C. 2492; Syed Gulzar Hussain v. Dewan Syed Ale Rasul Ali Khan, 2014 Indlaw SC 102. 7 “Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.” 2

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legislature of a State can establish such body corporate that is out of the purview of List I in the Seventh Schedule (hereinafter, Union List). Under Entry 448 of the Union List, only interstate corporations fall within the purview of the Union List. In the present case, the 2014 Act establishes a body corporate (GKSMB) whose objects are confined to the Province of Gatoch. Therefore, the GKSMB is not an inter-state body corporate. 4.

Therefore, it is submitted that the legislature of Province of Gatoch was entitled to enact

the 2014 Act as the same is well within the purview of the State List. [B].

THE 2014 ACT IS, IN PITH AND SUBSTANCE, A LEGISLATION DEALING WITH INCORPORATION AND REGULATION OF GKSMB.

5.

Prior to the enactment of the 2014 Act, Kormi Shrines in Gatoch were administered by

KSMB. KSMB was set up under Kormi Shrines Act, 1925. Later, under the Hidamb Province Reorganisation Act, 1966, KSMB was declared to be an inter-state body.9 The power to legislate upon regulation of any inter-state body rests with the Union Government.10 In light of this, it may be argued that the 2014 Act is, in substance, an act with respect to KSMB and not GKSMB. In order to account for the substance, emphasis must be laid on the doctrine of ‘pith and substance’ of an Act. 6.

In Ujagar Prints v. Union of India,11 it was held that the words “with respect to” in Art.

246 of the Constitution bring in the doctrine of ‘pith and substance’ in the understanding of application of legislative power. The phrase ‘pith and substance’ means “true nature and character”12 which is essentially different from its consequential effects. 13 The doctrine saves a legislation from being questioned if it substantially falls within the legislative scope of the legislature enacting it.14 The question of ‘pith and substance’ arises when a Court is ascertaining whether a particular legislation falls within one legislative list or another.15

“Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.” 9 HIDAMB PROVINCE REORGANISATION ACT, 1966, Sec. 72, cl. 3. See Factsheet, ¶ 6. 10 Para 3, Section I [A], Written Submissions. 11 Ujagar Prints v. Union of India, A.I.R. 1989 S.C. 516. 12 Gallagher v. Lynn, [1937] A.C. 863. See also Chaturbhai M. Patel v Union of India, A.I.R. 1960 S.C. 424. 13 Asst. Commr. Of Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd., A.I.R. 1970 S.C. 169. Union of India v. Shah Goverdhan L. Kabra Teachers College, A.I.R. 2002 S.C. 3675. 14 Kishori v. The King, (1950) F.C.R. 650 (653). See also State of Bombay v. Balsara, A.I.R. 1951 S.C. 318; Iswari Khetan Mills v. State of U.P., A.I.R. 1980 S.C .1955; State of Karnataka v. Ranganatha, A.I.R. 1978 S.C. 215; KSE Board v. Indian Alumminium Company, A.I.R. 1976 S.C. 1031. 15 United Provinces v. Aliqa Begum, A.I.R. 1941 P.C. 16. See also Union of India v. Shah Goverdhan L. Kabra Teacher’s College, A.I.R. 2002 S.C. 3675. 8

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It is submitted that the 2014 Act is, in pith and substance, a legislation dealing with

incorporation and regulation of GKSMB, based on the following considerations: a). Object of the Legislation: The foremost consideration is the object of the legislation as opposed to its effects.16 The court must examine the true intent of a legislation as its ‘pith and substance’ to determine whether it fits in one List or the other.17 In the present instance, the true legislative intent of the Provincial Legislature of Gatoch was to gain control over Kormi Shrines in the Province of Gatoch. This was because Kormis in Gatoch did not have adequate representation in KSMB.18 Thus, per its pith and substance, it falls within the purview of the State List. b). Means employed to achieve the object: It must be determined that the means by which the object of the impugned law has been sought to be achieved is within the legislative power of the legislature enacting it.19 In the present case, the means by which the object (control over the Kormi Shrines within the territory of Gatoch) was achieved was by establishing GKSMB. GKSMB is a body corporate established with the objective of administering Kormi Shrines in Gatoch. Incorporation of such a body corporate falls within the legislative ambit of Entry 32 of the State List.20 c). Subject Matter of the legislation: In order to determine the authority of a legislature with respect to enacting a law the ‘subject matter’ of the legislation must be looked at.21 In the present case, the ‘subject matter’ of the 2014 Act was the administration of Kormi Shrines in the Province of Gatoch. Such administration falls well within the legislative domain of Entry 7 of the State List, as submitted earlier.22 Hence, the subject matter of the 2014 Act is within Gatoch’s scope of legislation.23

16

Sita Ram Sharma v. State of Rajasthan, A.I.R. 1974 S.C. 1373. See also A.G. Saskatchewan v. A.G. Canada, (1949) A.C.; 110. State of Karnataka v. Ranganatha Reddy, A.I.R. 1978 S.C. 251; Southern Pharmaceuticals and Chemicals v. State of Kerela, A.I.R. 1981 S.C. 1863. Hoechst Pharmaceuticals v. State of Bihar, A.I.R. 1983 S.C. 1019. 17 India Cements Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 12. 18 Factsheet, ¶ 6, line 3. 19 Gallagher v. Lynn, (1937) A.C. 863 (870). See also KC Gajapati Narayan Deo v. State of Orissa, A.I.R. 1953 S.C. 375; Gullapalli Nageswara Rao v. A.P. State Road Transport Corpn., A.I.R. 1959 S.C. 308; Joshi v. Ajit Mills, Ahmedabad, A.I.R. 1977 S.C. 2279. 20 Para 3, Section I [A], Written Submissions. 21 Supra note 13. See also 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 8700 (8th ed. 2010). 22 Section I[A], Written Submissions. 23 Part 3, Section I[A], Written Submissions.

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Thus, the pith and substance of the impugned legislation is incorporation and regulation

of GKSMB, and does not concern the KSMB. [C].

THE NATURE OF ENCROACHMENT OF THE 2014 ACT UPON THE POWERS OF KSMB IS ONLY INCIDENTAL.

9.

Admittedly, the 2014 Act encroaches upon the powers of KSMB. However, such

encroachment would not be enough to disqualify the legislative authority of the Provincial Legislature of Gatoch. Having determined the pith and substance of the impugned legislation, the doctrine of ‘incidental and ancillary powers’24 must be applied in order to determine its scope. If it is found that for the proper and effective operation of its legitimate authority, it is necessary for a Legislature to enact a law relating to ancillary matters, the Legislature is vested with the power to do so, irrespective of whether or not these ancillary matters lie outside the scope of its enumerated powers.25 Thus, it is submitted that any interference with the functioning or regulation of KSMB, is merely an ‘incidental’ encroachment on Entry 44 of the Union List. Therefore, it does not qualify as a legitimate ground to question the legislative competence of the Provincial Legislature of Gatoch in the present case.

II. THE GOVERNOR HAD DISCRETION IN RESERVING THE BILL FOR THE ASSENT OF THE PRESIDENT AND THE FEDERAL GOVERNMENT HAD NO COMPETENCE TO DIRECT THE GOVERNOR IN THIS REGARD

[A].

THE GOVERNOR HAD DISCRETION IN THE RESERVATION OF THE BILL IN QUESTION FOR THE ASSENT OF THE PRESIDENT.

10.

In the present case, the Governor was directed by the Federal Government to reserve

the 2014 Act for the assent of the President vide a letter dated June 16, 2014.26 It is submitted that the Governor was not bound by this advice. He was required to exercise his discretion in this regard as: firstly, Art. 200 of the Constitution requires him to exercise his discretion in making this decision (i); secondly, this discretion is necessary for the Governor to discharge

24

Supra note 14. See also Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, [1947] F.C.R. 28; State of Bombay v. Narothamdas Jethabai, 1950 Indlaw S.C. 54; Board of Revenue v. Jhaver, A.I.R. 1968 S.C. 59; Association Of Leasing & Financial Service Companies v. Union Of India, (2011) 2 S.C.C. 352. 25 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 8703 (8th ed. 2010). 26 Factsheet, ¶ 10.

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his Constitutional role in the Province (ii) and; thirdly, the intention of the drafters of the Constitution need not affect the interpretation of Art. 200 in the present case (iii). (i)

Art. 200 of the Constitution requires the Governor to exercise his discretion. Per Art. 200 of the Constitution,27 the Governor has the power to reserve a bill for the

11.

assent of the President. It is submitted that the Governor is required to take this decision based on his individual judgment of the bill presented to him. This view was upheld in Hoechst Pharmaceuticals v. State of Bihar.28 In this case, the

12.

Supreme Court specifically held that the Governor would be required to exercise his personal discretion in choosing to reserve a bill presented to him for the assent of the President. The court went on to hold that this power to reserve a bill, based on his individual judgment of it, accorded to the Governor is non-justiciable. The rationale in this judgment was that the Constitution allowed for the passing into law any bill that received the assent of the President following its reservation by the Governor, even if there wasn’t a pressing need for the same. Thus, the exercise of this power by the Governor in his discretion would simply provide for an additional check on legislative activities in the State. 13.

Therefore, it is submitted that the Governor was free to exercise his discretion in

choosing to reserve the 2014 Act for the assent of the President in the present case. He was expected to take the decision based on his individual assessment of the bill presented to him, and not directions issued by the Federal Government. (ii)

This discretion is necessary for the Governor to fulfil his Constitutional Role in the State.

14.

It is a widely accepted fact that the role of the Governor in a State includes playing the

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

27

INDIA CONST. art. 200. Hoechst Pharmaceuticals v. State of Bihar, A.I.R. 1983 S.C. 1019. 29 B.P. Singhal v. Union of India, (2010) 6 S.C.C. 33. See also 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 6097 (8th ed. 2010). 28

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Thus, the Governor must be given discretion in making this decision in light of the Constitutional role his office is designed to play. (iii)

The intention of the framers of the Constitution need not affect the interpretation of Art. 200 in the present case.

15.

Admittedly, records of debates in the Constituent Assembly reflect the intention of the

drafters of the Constitution to create a purely Constitutional office for the Governor, without any administrative or discretionary power.30 However, it is submitted that courts have, in the past, refused to allow the intent of the framers of the Constitution to colour their perception of its provisions.31 Additionally, in A.K. Gopalan v. State of Madras,32 the Court held that it would look at Constituent Assembly debates while interpreting a provision of the Constitution only in cases of ambiguity in the said provision. 16.

In light of the above, it is submitted that there is no ambiguity in Art. 200 of the

Constitution of India. The words “in the opinion of the Governor” contained in Art. 200 clearly indicate that the Governor is expected to form an independent opinion when determining whether or not a bill potentially derogates upon the powers of a High Court. Also, he must compulsorily reserve the bill in question for the assent of the President in such cases. 17.

However, in Govind Anantrao Upadhya v. State of Maharashtra,33 the court held that

this discretion would extend to the granting of assent to a bill passed by a State Legislature on all matters contained in the State List. Furthermore, this would not be restricted to cases of a bill potentially derogating upon the powers of a High Court. This decision was made based on the idea that the Governor is required to act as an independent check on the executive and legislative activities happening in a State. Scholarly opinion also supports the granting of such discretion to the Governor.34 18.

In the present case, the subject matter of the 2014 Act (maintenance of Kormi Shrines

in Gatoch) falls within the purview of the State List.35 It is therefore submitted that the rationale used in this case in interpreting Art. 200 of the Constitution should be followed, despite a Statement of Dr. B.R.Ambedkar, CONSTITUENT ASSEMBLY DEBATES 455, “If the Constitution is to remain in principle the same as we intend it to be, the Governor of a State must be a purely Constitutional Governor, with no administrative powers over the State”. 31 I.C. Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643. See also The Automobile Transport (Rajasthan) Limited v. State of Rajasthan, A.I.R. 1962 S.C. 1406. 32 A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27. 33 Govind Anantrao Upadhya v. State of Maharashtra, A.I.H.C. 2001 Bom 1972. 34 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 6138 (8th ed. 2010). 35 Section I, Written Submissions. 30

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contrary intention that can be gleaned from Constituent Assembly debates. Therefore, the Governor had discretion in choosing to reserve the 2014 Act for the assent of the President. [B].

THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE GOVERNOR TO RESERVE THE BILL FOR THE ASSENT OF THE PRESIDENT.

19.

The Federal Government was not competent to direct the Governor of Gatoch to reserve

the 2014 Act for the assent of the President as: firstly, this interaction between the Federal Government and the Governor is not constitutionally sanctioned (i) and; secondly, the Governor is not amenable to directions from the Federal Government (ii). (i)

Such an interaction between the Federal Government and the Governor is not Constitutionally sanctioned.

20.

Art. 163 of the Constitution provides for the presence of a Council of Ministers at the

state level to aid and advice the Governor in the discharge of his functions.36 However, there is no provision that provides for any such interaction between the Governor and the Central Government. Also, the Constitution lacks mention of a provision where the Governor is explicitly bound by the advice of the Central Government, along the lines of the advice of the Election Commission of India being binding on the Governor when he acts under Art. 103(2) of the Constitution.37 Furthermore, notwithstanding the need for discretion in certain cases, only the advice of the State Council of Ministers is typically binding on the Governor in the exercise of his executive functions.38 Thus, the Federal Government’s actions were not Constitutionally sanctioned in the present case. (ii) 21.

The Governor is not amenable to directions from the Federal Government. Admittedly, per Art. 156(1) of the Constitution,39 the Governor holds office “during

the pleasure of the President”. However, this pleasure is exercised by the President on the sole advice of the Union Council of Ministers.40 Therefore, the Union Government maintains effective control over the appointment and termination of a Governor.41

36

INDIA CONST. art. 163, cl. 1. INDIA CONST. art. 103, cl. 1. 38 Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192, Azad v. State of Assam, A.I.R. 1958 A.P. 619. Biman Chandra Bose v. H.C. Mukherjee, A.I.R. 1952 Cal 799. See also Vidyasagar Singh v. Krishana Ballabha Sahay, A.I.R. 1965 Pat 321, Devji Vallabhai Tandel v. Administrator, A.I.R. 1982 S.C. 1029. 39 INDIA CONST. Art. 156, Cl. 1. 40 Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192. 41 B.P.Singhal v. Union of India, (2010) 6 S.C.C. 331. See also Satya Narain Shukla v. Union of India, A.I.R. 2006 S.C. 2511. 37

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However, in Hargovind Pant v. Dr. Raghukul Tilak,42 the court held that the office of the Governor is a high Constitutional office, and that the Governor does not qualify as an employee of the Central Government. It went on to hold that the Governor was not amenable to directions from the Central Government, or accountable to them regarding the manner in which he discharges his duties.43 22.

In the present case, Mr. Khangotra held the Office of the Governor of Gatoch in an

independent Constitutional capacity. Therefore, he was not amenable to the direction of the Federal Government contained in the letter dated June 16, 2014, and was consequently not required to reserve the bill in question for the assent of the President based on this direction.

III. THE FEDERAL GOVERNMENT WAS NOT COMPETENT TO ISSUE DIRECTIONS TO THE PROVINCIAL GOVERNMENT TO REFRAIN FROM NOTIFYING THE DATE OF COMMENCEMENT OF AN ACT PASSED BY THE STATE LEGISLATURE.

23.

Following the assent of the Governor to the 2014 Act, the Federal Government of

Hindistan directed the Government of Gatoch not to notify the date of commencement of the Act vide a letter dated July 2, 2014.44 The notification of this law was a compulsory condition precedent for it to come into force.45 In light of this, it is submitted that the Federal Government was not competent to issue this direction as: firstly, such power cannot be exercised by the Federal Government in light of the lack of an existing Federal law on the subject [A] and; secondly, this action amounts to a violation of the principle of federalism enshrined in the Constitution [B]. [A]

SUCH POWER CANNOT BE EXERCISED BY THE FEDERAL GOVERNMENT IN LIGHT OF THE LACK OF AN EXISTING FEDERAL LAW ON THE SUBJECT.

24.

Per Art. 257(1) of the Constitution, the Union Government is competent to issue

directions to the States to ensure that they exercise their executive power in line with Union laws. This power extends to any situation where the Union Government is of the opinion that

42

Hargovind Pant v. Dr.Raghukul Tilak, A.I.R. 1979 S.C. 1109. See also Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980. 44 Factsheet, ¶ 11. 45 Harla v. State of Rajasthan, A.I.R. 1951 S.C. 467; Pankaj Jain Agencies v. Union of India, A.I.R. 1995 S.C. 360. 43

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independent State action would affect the exercise of its executive power.46 Furthermore, while notification is theoretically a legislative activity, it is ordinarily carried out by States in the exercise of their executive power.47 However, in Sharma Transport v. State of Andhra Pradesh,48 the Court held that there was a need for an existing Union law on the matter for the Union Government to issue directions to States. 25.

In the present case, the proposed national bill (National Kormi Shrines Management

Bill, 2014) was not passed by the Council of States of the Federal Parliament, since the Assembly was dissolved before it could be passed.49 Therefore, there was no existing federal law on the subject of the regulation of Kormi Shrines in Hindistan. Thus, it is submitted that there was no basis for the Federal Government to issue directions regarding the manner in which executive power is wielded by the Provincial Government in the present case. This is because control over the exercise of executive power by the Province in this regard had not passed on to them. Therefore, the Federal Government was not competent to issue the direction contained in the letter dated July 2, 2014. [B].

THIS ACTION AMOUNTS TO A VIOLATION OF THE PRINCIPLE OF FEDERALISM ENSHRINED IN THE CONSTITUTION.

26.

In Kesavananda Bharti v. Union of India,50 it was held that federalism forms a part of

the Basic Structure of the Constitution of India. Furthermore, in S.R. Bommai v. Union of India,51 the court observed that federalism in the Indian constitutional is a concept that unites separate States into a Union without sacrificing their individual political integrity. 27.

As submitted earlier, notification of a law is ordinarily carried out by States in the

exercise of their executive power.52 In light of this, it is submitted that the act of the Federal Government in the present case does amount to a violation of the principle of federalism. This is because intervening and directing the Provincial Government with regards to a matter that it normally does in the exercise of its independent executive power amounts to an invasion of the

46

Vedire Venkata Reddy v. Union of India, A.I.R 2004 A.P. 234. Jayantilal Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648. 48 Sharma Transport v. State of Andhra Pradesh, A.I.R. 2002 S.C. 322. See also Jay Engineering Works v. State of West Bengal, A.I.R 1968 Cal 407. 49 Factsheet, ¶ 9. 50 Kesavananda Bharati v. Union of India, A.I.R. 1973 S.C. 1461. 51 S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. 52 Jayantilal Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648. 47

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Province’s individual political integrity. Thus, the action of the Federal Government in the present case is in opposition to the basic structure of the Constitution.

IV. REMOVAL OF THE GOVERNOR WAS UNCONSTITUTIONAL. 28.

The Governor of the Province of Gatoch, Mr. Champak Khangotra was removed from

his office on June 30, 2014.53 The Governor of a State holds office during the pleasure of the President per the provisions of Art. 156(1) of the Constitution.54 It is submitted that the removal of Mr. Khangotra under Art. 156(1) was unconstitutional as: firstly, it was against federal principles [A] and; secondly, the exercise of pleasure under Art. 156 (1) was arbitrary [B]. [A]. 29.

THE REMOVAL IS AGAINST FEDERAL PRINCIPLES.

Federal principles entail a division of the legislative and executive authority of the

Centre and the State.55 These federal principles are embodied in the Constitution56 and constitute an integral part of its basic structure.57 It is submitted that in the present case, the removal of Mr. Khangotra was against federal principles as: firstly, removal for noncompliance of the Federal Government’s direction to not assent to the 2014 Act amounts to interference with legislative authority of the province (i) and; secondly, in any case, Mr. Khangotra was not bound by the Federal Government’s directions (ii) (i)

Removal for non-compliance of the Federal Government’s direction of not assenting to the 2014 Act amounts to interference with legislative authority of the Province.

30.

Per Art. 74 of the Constitution, the President has to act in accordance with the advice

of his Council of Ministers.58 Therefore, the President’s pleasure under Art. 156(1) can be exercised only on the advice of the Union Council of Ministers. 59 The Union Council of Ministers thus wields effective control over the tenure of the Governor.

53

Factsheet, ¶ 12 line 1. INDIA CONST. art.156, cl. 1. 55 Statement of Dr. B.R.Ambedkar, CONSTITUENT ASSEMBLY DEBATES 976 (November 25, 1949). 56 See Kuldip Nayar v. Union of India, A.I.R. 2006 S.C. 3127. 57 Kesavananda Bharati v. Union of India, A.I.R. 1973 S.C. 1461. 58 INDIA CONST. art.74, cl. 1. See also Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192. 59 B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331. 54

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In the present case, the Federal Government had directed Mr. Khangotra not to assent to the 2014 Act.60 However, as submitted earlier, Mr. Khangotra had the legislative power to choose to assent to the 2014 Act passed on May 10, 2014.61 Therefore, he gave his assent to the bill on 18th June, 2014,62 subsequent to which he was removed from office on 30th June, 2014.63 It is submitted that in the present case, the removal of Mr. Khangotra was on account of his failure to comply with the direction of the Federal Government not to assent to the 2014 Act.64 It is therefore submitted that the Federal Government indirectly interfered with the legislative authority of Gatoch, thereby violating federal principles. (ii)

In any case, Mr. Khangotra is not Constitutionally bound by the Federal Government’s directions.

32.

In the present case, the Federal Government had directed Mr. Khangotra not to give

assent to the 2014 Act. However, in Hargovind Pant v. Dr. Raghukul Tilak,65 a Constitution Bench held that the Governor of a State is not amenable to the directions of the Central Government. Therefore, Mr. Khangotra is not bound by such a direction issued by the Federal Government. Thus, his removal for failure to comply with a Federal Government direction that he was not bound by also amounts to a violation of federal principles. [B]. 33.

THE EXERCISE OF PLEASURE UNDER ART. 156(1) WAS ARBITRARY

The exercise of pleasure of the President under Art. 156(1) is not absolute, but subject

to ‘fundamentals of constitutionalism’ which prohibit arbitrary action.66 Moreover, in cases where prima facie arbitrariness can be shown, the Federal Government can be called to show the material forming the basis for removal.67 It is submitted that the withdrawal of pleasure for removal of Mr. Khangotra was prima facie arbitrary as: firstly, there was no valid reason for his removal (i) and; secondly, his removal was in violation of the principle of audi alteram partem (ii).

60

Factsheet, ¶ 11. Factsheet, ¶ 8 line 7. See also Section II[A][i], Written Submissions. 62 Factsheet, ¶ 12 line 1. 63 Factsheet, ¶ 11 line 8. 64 Factsheet, ¶ 11 line 2. 65 Hargovind Pant v. Dr. Raghukul Tilak, A.I.R. 1979 S.C. 1109. 66 B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331. See also Brij Mohan Lal v. Union of India, (2012) 6 S.C.C. 502; Manoj Narula v. Union of India, (2014) 9 S.C.C. 1; Shree Rajkot District Cooperative Milk Producers Union Ltd. v. Bhanubhai Labhubhai Mehta, (2014) S.C.C. 1248; Ashok v. Chancellor, Kerala Veterinary and Animal Sciences University,(2011) S.C.C. 3515. 67 B.P.Singhal v. Union of India, (2010) 6 S.C.C. 331. 61

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There was no valid reason for the removal of Mr. Khangotra It has been held that the validity of a reason for removal of a Governor depends upon

the facts of the case.68 However, physical and mental incapacity, corruption and behavior unbecoming of a Governor, have been commonly accepted as valid grounds for removal.69 In the present case, Mr. Khangotra’s actions clearly do not fall under any of these

35.

accepted grounds. Moreover, in the present case, removal on ground of non-compliance with Federal Government’s directions is also unconstitutional.70 Therefore, there was no valid ground for his removal. This absence of any valid reason for removal of Mr. Khangotra establishes a prima facie case of arbitrariness and therefore renders his removal unconstitutional. (ii)

Removal of Mr. Khangotra was in violation of the principle of audi alteram partem.

36.

Audi alteram partem is a principle of natural justice that requires that no one should be

condemned unheard.71 It has been held that the rules of natural justice can only be applied if the law is silent on the concerned matter and the principle is not in contravention of the provisions of the existing law. However, the rules of natural justice are inapplicable if they are by necessary implication, excluded by the law. 72 The provisions of Article 156 are silent about the application of the audi alteram partem rule. 37.

Moreover, the reading of such a principle into the article does not stand in contravention

of the provisions of any existing law. While the Patna High Court has held that in cases of removal under Art. 156(1), the audi alteram partem rule does not apply,73 it is essential to note that such a judgment is not binding on this Court. Therefore, the reading of the audi alteram partem principle does not stand contrary to any provision of law that binds this Court. 38.

Furthermore, in Hargovind Pant v. Raghukul Tilak74, the office of the Governor has

been held to be a separate Constitutional office. However, there is a possibility that the

68

Id. B.P. Singhal v. Union of India, (2010) 6 S.C.C. 331. See also Shree Rajkot District Cooperative Milk Producers Union Ltd. v. Bhanubhai Labhubhai Mehta, (2014) S.C.C. 1248. 70 Section II [B], Written Submissions. 71 BLACK’S LAW DICTIONARY 170 (2nd edn., 1910). 72 Raj Kishore Prasad Jaiswal v. Subak Narain, A.I.R. 1959 Pat 89. 73 Indian Muslim League v. Union of India, A.I.R. 1998 Pat. 156. 74 Hargovind Pant v. Dr. Raghukul Tilak, A.I.R. 1979 S.C. 1109. 69

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Governor is removed from his office arbitrarily on account of misuse of the power under Art. 156. Therefore, it is submitted that in such a case, the exclusion of the principle of audi alteram partem is not necessarily implied. This is because, the removal of the Governor without granting him an opportunity to present his case could potentially dilute the Constitutional independence and powers of the office. 39.

In the present instance, Mr. Champak Khangotra was removed from his office without

being given an opportunity to be heard. His removal was thus in clear violation of the principle of audi alteram partem and was therefore arbitrary.

V. DISMISSAL OF THE GOVERNMENT OF GATOCH WAS UNCONSTITUTIONAL. 40.

In the present case, the Government of Gatoch was dismissed on October 10, 2014 by

a Presidential Proclamation and President’s rule was imposed.75 Under Art. 356(1) of the Constitution, President’s rule can be imposed in a State through a proclamation if the President is satisfied that a situation has arisen in which the State Government cannot work in accordance with the provisions of the Constitution.76 It is submitted that the dismissal of the Government of Gatoch was unconstitutional as: firstly, it was dismissed without following requisite procedure [A] and; secondly, it was dismissed with a mala fide intention [B]. [A].

THE GOVERNMENT OF GATOCH WAS DISMISSED WITHOUT FOLLOWING REQUISITE PROCEDURE

41.

The power to dismiss the State Government lies with the Governor as the ministers of

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

75

Factsheet, ¶ 14 line 1-2. INDIA CONST. art.356, cl. 1. 77 INDIA CONST. art.164, cl. 1. 78 State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361. 79 INDIA CONST. art.356, cl. 3. 80 S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. 76

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Parliament have approved such a proclamation. Until such approval is received, the President could only suspend the Legislative Assembly under Art. 356(1)(c). 42.

In the present instance, the Government of Gatoch was dismissed by the President under

Art. 356(1)(a) on October 10, 2014.81 However, both the Houses of the Parliament approved the Proclamation only by November 28, 2014.82 Therefore, it is clear that the President dismissed the Government of Gatoch before both the Houses of the Parliament approved the Proclamation. The dismissal of the Government of Gatoch under Art.356 was thus carried out without following requisite procedure. [B]. 43.

THE GOVERNMENT OF GATOCH WAS DISMISSED WITH A MALA FIDE INTENTION

If the exercise of the power by the President under Art. 356 is found to be mala fide, it

amounts to no satisfaction at all in the eyes of the law. In such cases, the essential requirement of the satisfaction of the President is not fulfilled. Such a Proclamation issued under Art. 356, therefore, becomes amenable to judicial review.83 In the present case, it is submitted that the dismissal of the Government of Gatoch was done with a mala fide intention as: firstly, it was based on grounds extraneous to the purpose of Art. 356 (i) and; secondly, the report submitted by the Governor was misleading (ii). (i)

Dismissal of the Government of Gatoch was based on grounds extraneous to the purpose of Article 356.

44.

A Proclamation under Art. 356 can be said to be mala fide, if it is based on a ground

other than a breakdown of the Constitutional machinery of the State.84 Failure of Constitutional machinery refers to a breakdown that creates a situation that cannot be remedied except by invoking Art. 356 immediately.85 Furthermore, if the motivating factor for action under Art. 356(1) is political gain to the party in power at the Centre, it constitutes a ground extraneous to the purpose of Art. 356.86

81

Factsheet, ¶ 14 line 1. Factsheet, ¶ 15 line 1-3. 83 State of Rajasthan v. Union of India, A.I.R 1977 S.C. 1361; A.K. Roy v. Union of India, A.I.R. 1982 S.C. 710; S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. 84 A.K. Roy v. Union of India, A.I.R. 1982 S.C. 710. See also State of Rajasthan v. Union of India, A.I.R 1977 S.C. 1361; S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. 85 9 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 10973 (8th ed. 2010). See also Sunderlal Patwa v. Union of India, A.I.R. 1993 M.P. 214. 86 S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. 82

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4th RGNUL National Moot Court Competition, 2015 45.

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In the instant case, the Proclamation was issued by the Federal Government to appease

its coalition partners who were in power in the Province of Hidamb.87 Clearly, the motivation behind such an action under Art. 356(1) was to yield political gains. Therefore, such action is extraneous to the purpose of Art. 356. The Proclamation issued by the Federal Government can thus be struck down as mala fide. (ii) 46.

The report submitted by the Governor was misleading. It is submitted that the report dated February 1, 2014,88 prepared by the Governor, Mr.

Champak Khangotra, was misleading. This is because it wrongly suggested that the task of conducting the municipalities’ elections is the State Government’s prerogative. In Rameshwar Prasad v. Union of India,89 it was held that where the Governor misleads the Council of Ministers, who advise the President to issue a Proclamation, it amounts to no satisfaction at all under Art. 356. 47.

In the present case, Mr. Khangotra submitted that it is the duty of the Provincial

Government to conduct elections to the municipalities. However, according to Art. 243ZA of the Constitution, the task of conducting the municipalities’ elections is that of the State Election Commission, which is independent of the State Government.90 It is the State Election Commission’s mandate to ensure that the municipalities’ elections are conducted before the expiry of their tenure.91 Therefore, Mr. Khangotra misled the Federal Government by submitting that the State Government was responsible for the failure to conduct elections. Moreover, he also failed to verify what he was stating in his report. Thus, it is submitted that there was a mala fide intention on the part of the Governor.

87

Factsheet, ¶ 14 line 6. Factsheet, ¶ 13 line 4. 89 Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980. 90 INDIA CONST. art. 243ZA, cl. 1. See also Kishansing Tomar v. Municipal Corporation of The City Of Ahmedabad, A.I.R. 2007 S.C. 269. 91 Kishansing Tomar v. Municipal Corporation of The City Of Ahmedabad, A.I.R. 2007 S.C. 269. of the Constitution under Art. 243U(1) and 88

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4th RGNUL National Moot Court Competition, 2015

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PRAYER Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Honourable Court may be pleased to adjudge and declare that: I.

The Provincial Legislature of Gatoch had legislative competence to enact the Gatoch Kormi Shrines Management Act, 2014.

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

All of which is humbly prayed, TC- 07, Counsels for the Petitioner.

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