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

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 RESPONDENT. Page 1 of 28

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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 GOVERNMENT

DID NOT HAVE THE

LEGISLATIVE COMPETENCE

TO

ENACT THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014. ................................... 14

[A].

KSMB is an inter-state body, thereby being out of the purview of the State List. . 14

[B].

it is a colourable piece of legislation, and hence cannot exist. ............................. 15

[C]. Gatoch cannot exercise its legislative power under the Concurrent list as it is already ‘occupied’. .......................................................................................................... 16 II. THE GOVERNOR HAD NO DISCRETION IN THE RESERVATION OF THE BILL FOR THE ASSENT

OF

THE PRESIDENT

AND

THE FEDERAL GOVERNMENT WAS COMPETENT TO

ISSUE DIRECTIONS TO THE GOVERNOR IN THIS REGARD ................................................. 17 [A].

The Governor had no discretion in the reservation of the bill for the assent of the

President. ......................................................................................................................... 17 [B].

The Federal Government was competent to issue directions to the Governor to

reserve the bill for the assent of the President. ................................................................ 18 III. THE FEDERAL GOVERNMENT WAS COMPETENT PROVINCIAL GOVERNMENT

TO

REFRAIN

TO

ISSUE DIRECTIONS

FROM NOTIFYING

TO

THE

THE DATE

OF

COMMENCEMENT OF AN ACT PASSED BY THE PROVINCIAL LEGISLATURE. .................... 20 [A].

The administrative control in this regard lay with the Federal Government in the

present case. ..................................................................................................................... 20 [B].

The action of the Federal Government conforms to the nature of quasi-federalism

enshrined in the Constitution. .......................................................................................... 21 IV. REMOVAL OF THE GOVERNOR WAS CONSTITUTIONAL. .............................................. 22

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[A].

The Removal was in Accordance With Federal Principles. .................................. 22

[B].

The Removal was not Arbitrary. ........................................................................... 23

V. DISMISSAL OF THE GOVERNMENT OF GATOCH WAS CONSTITUTIONAL. ..................... 24 [A].

The Government of Gatoch was Dismissed in Accordance With Requisite

Procedure. ........................................................................................................................ 25 [B].

The Government of Gatoch was Dismissed without a Mala Fide Intention. ........ 25

Prayer ....................................................................................................................................... 28

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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

Hon’ble

Honourable

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. Sanjeevi Naidu v. State of Madras, A.I.R. 1970 S.C. 1102. 2. Ahmedabad Assn. v. Thakore, A.I.R. 1967 S.C. 648. 3. Ashok Kumar v. Union of India, A.I.R. 1991 S.C. 1792. 4. Azad v. State of Assam, A.I.R. 1958 A.P. 619. 5. B.P.Singhal v. Union of India, (2010) 6 S.C.C. 331. 6. Barai v. Henry, A.I.R. 1983 S.C. 150. 7. Bharat Coking Coal Ltd. v. State of Bihar, (1990) 4 S.C.C. 557. 8. Biman Chandra Bose v. H.C. Mukherjee, A.I.R. 1952 Cal 799. 9. Board of Trustees v. Union College, A.I.R. 1962 S.C. 458. 10. D.C. Wadhwa v. State of Bihar, A.I.R. 1987 S.C. 579. 11. Dattaji Chirandas v. State of Gujarat, A.I.R. 1999 Guj 48. 12. Deep Chand v. State of U.P., A.I.R. 1959 S.C. 648. 13. Dharam Dutt v. Union of India, A.I.R. 2004 S.C. 1295. 14. Dharappa v. Bijapur Co-op Milk Producers Societies Union Ltd., A.I.R. 2007 S.C. 1848. 15. Gnanamani v. Governor of Andhra, A.I.R. 1954 A.P. 9. 16. Grahak Sanstha Manch v. State of Maharashtra, A.I.R. 1994 S.C. 2319. 17. Gullapalli Nageswara Rao v. A.P. State Road Transport Corpn., A.I.R. 1959 S.C. 308. 18. Hargovind Pant v. Dr.Raghukul Tilak, A.I.R. 1979 S.C. 1109. 19. Harla v. State of Rajasthan, A.I.R. 1951 S.C. 467. 20. Indian Muslim League v. Union of India, A.I.R. 1998 Pat. 156. 21. Jayantilal Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648. 22. K.C.G. Narayan Deo v. State of Orissa A.I.R. 1953 S.C. 375. 23. Karunanidhi v. Union of India, A.I.R. 1979 S.C. 898. 24. Kashmir Singh v. Union of India, A.I.R. 2009 S.C. (Supp) 511. 25. Kesavananda Bharati v. Union of India, A.I.R. 1973 S.C. 1461. 26. Kishansing Tomar v. Municipal Corporation Of The City Of Ahmedabad, A.I.R. 2007 S.C. 269. 27. Naga Peoples’ Movement of Human Rights v. Union of India, A.I.R. 1998 S.C. 431. 28. Om Narain Agarwal v. Nagar Palika, Shahjahanpur, A.I.R. 1993 S.C. 1440. Page 5 of 28

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29. P. Vajravelu Muladiar v. Special Dy. Collector, A.I.R. 1965 S.C. 1017. 30. P.R. Ramesh v. State of Karnataka 2011 Indlaw K.A.R 59. 31. Pankaj Jain Agencies v. Union of India, A.I.R. 1995 S.C. 360. 32. Premnath v. State of J. & K., A.I.R. 1959 S.C. 749 33. Prof. Yashpal v. State of Chhatisgarh, A.I.R. 2005 S.C. 2026. 34. R.S. Joshi v. Ajit Mills, A.I.R. 1977 S.C. 2279. 35. Rai Sahib Ram Jawaya Kapoor v. State of Punjab, A.I.R. 1955 S.C. 549. 36. Raj Kishore Prasad Jaiswal v. Subak Narain, A.I.R. 1959 Pat 89. 37. Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980. 38. S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. 39. S.R. Chaudhuri v. State of Punjab, (2001) 7 S.C.C. 126. 40. Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192. 41. Sarkari Vikreta Sangh v. State of Madhya Pradesh, A.I.R. 1981 S.C. 2030. 42. Sat Pal v. State of Punjab, A.I.R. 1996 S.C. 107. 43. Satya Narayan Shukla v. Union of India, A.I.R. 2006 S.C. 2511; 44. Shankaranarayana v. State of Mysore, A.I.R. 1966 S.C. 1571. 45. Shiromani Gurdwaras Prabandhak Committee v. Lachhman Singh Gill, A.I.R. 1970 P&H. 40. 46. Sonapur Tea Co. v. Deputy Commr of Kamrup, A.I.R. 1962 S.C. 137. 47. State of Bihar v. Kameshwar Singh, A.I.R. 1952 SC 252. 48. State of Karnataka v. Union of India, A.I.R. 1978 S.C. 68. 49. State of Rajasthan v. Union of India, A.I.R 1977 S.C. 1361. 50. State of V.P. v. Moradhwaj, A.I.R. 1960 S.C. 796. 51. State of West Bengal v. Committee for Protection of Democratic Rights, A.I.R. 2010 S.C. 1476. 52. Sunderlal Patwa v. Union of India, A.I.R. 1993 M.P. 214. 53. Sunil Kumar Bose v. The Chief Secretary, Government of West Bengal, A.I.R. 1950 Cal. 274. 54. Surya Narayan Choudhary v. Union of India, A.I.R. 1982 Raj 1. 55. U.N.R. Rao v. Indira Gandhi, A.I.R. 1971 S.C. 1002. 56. Union of India v. Col. J.N. Sinha, (1971) 1 S.C.R. 791. 57. Union of India v. H.S. Dhillon, A.I.R. 1972 S.C. 1061. 58. Vedire Venkata Reddy v. Union of India, A.I.R 2004 A.P. 234. Page 6 of 28

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59. Welfare Assn. v. Ranjit Gohil, A.I.R. 2003 S.C. 1266 60. Zaverbhai v. State of Bombay, A.I.R. 1954 S.C. 752. II. STATUTES 1. PUNJAB REORGANISATION ACT, 1966. 2. THE CONSTITUTION OF INDIA, 1950. III. BOOKS 1. HORMASJI MANECKJI SEERVAI, CONSTITUTIONAL LAW OF INDIA, 3103 (4th ed. Year). 2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2010). IV. MISCELLANEOUS 1. Daljit Singh, Position of a State Governor in India, 22(3) THE INDIAN JOURNAL POLITICAL SCIENCE.

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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;” The Respondent humbly submits to the jurisdiction of the Hon’ble Court.

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;” The Respondent humbly submits to the jurisdiction of the Hon’ble Court.

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;” The Respondent humbly submits to the jurisdiction of the Hon’ble Court.

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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 28

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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. Page 10 of 28

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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

DID NOT HAVE LEGISLATIVE COMPETENCE TO ENACT

THE GATOCH KORMI SHRINES MANAGEMENT ACT, 2014.

The doctrine of colourable legislation is applicable in the present case. The Kormi Shrines Mangement Board has been declared to be an inter-state body corporate under Sec. 72 of the Hidamb Province Reorganisation Act. It is therefore within the legislative purview of the Federal Government, per entry 44 of the Union List. The purpose of the Gatoch Kormi Shrines Management Act, 2014, enacted by the Provincial Legislature, seeks to usurp the legitimate power exercised by the Kormi Shrines Management Board, and is therefore a colourable legislation. Additionally, the application of the doctrine of occupied field, in the present case makes the Provincial legislature devoid of competence to enact the law in question.

II. THE GOVERNOR ASSENT OF THE

HAD NO DISCRETION IN CHOOSING TO RESERVE THE BILL FOR THE

PRESIDENT, AND THE FEDERAL GOVERNMENT WAS COMPETENT TO ISSUE

DIRECTIONS TO THE GOVERNOR IN THIS REGARD.

The Governor is only required to exercise his discretion when he is explicitly required to do so by provisions of the Constitution. The Governor may reserve a bill for the assent of the President under Art. 200 of the Constitution. This provision does not explicitly require him to exercise his personal discretion in making this decision. The Federal Government maintains complete effective control over the appointment and termination of a Governor. Thus, they exercise ostensible control over him, and he would be amenable to directions issued by them regarding the conduct of his office. This action also buys into the unitary-leaning nature of quasi-federalism enshrined in the Constitution.

III. THE FEDERAL GOVERNMENT

WAS COMPETENT TO ISSUE DIRECTIONS TO THE

PROVINCIAL GOVERNMENT NOT TO NOTIFY THE DATE OF COMMENCEMENT OF THE ACT The exercise of executive power of Provinces in matters in which Provincial legislatures are not competent to legislate upon, necessarily comes under the administrative control of the Page 12 of 28

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Federal Government. Provinces typically carry out the act of notification of a law in the exercise of their executive power. Since the Provincial Legislature wasn’t competent to legislate upon the matter in question, the administrative control in the present case had passed on to the Federal Government. Therefore, they were competent to issue directions regarding the notification of the law. Furthermore, this buys into the unitary-leaning nature of quasifederalism enshrined in the Constitution.

IV. THE

DISMISSAL OF THE

GOVERNOR

WAS NOT IN VIOLATION OF FEDERAL PRINCIPLES

AND WAS NOT UNCONSTITUTIONAL.

The nature of federalism enshrined in the Constitution tends towards being unitary. It has been observed that the exercise of Presidential pleasure in the dismissal of a Governor does not amount to a violation of the principle of federalism which forms a part of the basic structure of the constitution. Furthermore, the office of the Governor has no fixed tenure. Moreover, the removal was made with a valid reason and it was not in violation of the principle of audi alteram partem.

V. THE

DISMISSAL OF THE

GOVERNMENT

OF

GATOCH

WAS IN LINE WITH REQUISITE

PROCEDURE AND WAS BONA FIDE.

The action of dismissing a Government must be taken only after all other remedies have failed. Also, the Federal Government must issue a warning to the Provincial Government, informing them of their Constitutional transgression. Both these conditions have been met in the present case, and so requisite procedure has been followed. Furthermore, the failure of the Provincial Government to fulfill its burden of appointing the State Election Commissioner, towards the conduct of municipal elections, does amount to a subversion of the Constitution. Therefore, the dismissal of the Government in the present case is bona fide.

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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 Gurdwara Prabhandak Committee (hereinafter, SGPC), established under the Sikh Gurdwaras Act, is analogous to the Kormi Shrines Management Board in the present case. Also, the Hidamb Province Reorganisation Act, 1966, is analogous to the Punjab Reorganisation Act, 1966. I. THE PROVINCIAL GOVERNMENT DID NOT HAVE 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) – in order to administer the 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). KSMB was set up under Kormi Shrines Act, 1925 (hereinafter, the 1925 Act).3 It is submitted that given the presence of KSMB, Province of Gatoch did not have the legislative competence to enact the 2014 Act as: firstly, KSMB is an inter-state body, thereby being out of the purview of the State List [A]; secondly, it is a colourable piece of legislation, and hence cannot exist [B] and; thirdly, Gatoch cannot exercise its legislative power under List 3 of the Seventh Schedule (hereinafter, Concurrent list) as it is already ‘occupied’ [C]. [A].

KSMB IS AN INTER-STATE BODY, THEREBY BEING OUT OF THE PURVIEW OF THE STATE LIST.

2.

Per Art. 2454 and Art. 2465 of the Constitution, the Union Legislature (hereinafter,

Parliament) has exclusive authority to enact legislations with respect to any of the matters enumerated in List I in the Seventh Schedule (hereinafter “Union List”). Entry 44 in the Union List6 authorizes the Parliament to enact legislations pertaining to the incorporation, regulation or winding up of inter-state body corporates. Following the reorganization of the

1

Factsheet, ¶ 18. Factsheet, ¶ 7, line 8. 3 Factsheet, ¶ 4, Line 3. 4 INDIA CONST. art. 245, cl. 1. 5 INDIA CONST. art. 246, cl. 1. 6 “Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.” 2

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Province of Hidamb, KSMB was declared to be an inter-state body.7 Hence, any law with respect to the said body falls in the legislative domain of the Union Legislature. Further, under Sec. 89 of the 1966 Act,8 the Parliament has exclusive authority to modify or alter the laws that were in force before the reorganisation of the province (the 1925 Act being one such legislation). GKSMB usurps the power to regulate Kormi Shrines in the province of Gatoch from the KSMB.9 Additionally, it was also held in Kashmir Singh v. Union of India10 that the Parliament had the sole legislative authority with regards to the SGPC, which is analogous to the KSMB. Thus, the legislature of Province of Gatoch lacks the requisite legislative competence to abrogate KSMB’s power in such a way. [B]. 3.

IT IS A COLOURABLE PIECE OF LEGISLATION, AND HENCE CANNOT EXIST.

A colourable legislation is a disguised, covert and indirect transgression of

constitutional powers by a legislature.11 It conveys the idea that while a legislature might prima facie appear to be acting within its legislative authority, in actuality it could be transgressing this authority.12 In other words, if the substance upon which a legislature has purported to legislate is beyond its legislative competence, then the form in which the law is clad would not save it from censure.13 In order to determine the substance, the court will inspect the ‘effect’ of the legislation.14 4.

Admittedly, the 2014 Act might prima facie appear to be an enactment well within the

legislative limits of the Provincial Legislature of Gatoch. This is because the territorial extent of GKSMB is limited to Gatoch. Under Entry 32 of List II15 in the Seventh Schedule (hereinafter, the State List), a state legislature may establish a body corporate whose territorial extent is limited to the state. However, in ‘effect’, incorporation of the said body 7

HIDAMB PROVINCE REORGANISATION ACT, 1966, Sec. 72, cl. 3. See Factsheet, ¶ 6. HIDAMB PROVINCE REORGANISATION ACT, 1966, Sec. 89. 9 Factsheet, ¶ 6, line 2 10 Kashmir Singh v. Union of India, A.I.R. 2009 S.C. (Supp) 511. See also Shiromani Gurdwaras Prabandhak Committee v. Lachhman Singh Gill, A.I.R. 1970 P&H. 40. 11 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 8683 (8th ed. 2010). 12 K.C.G. Narayan Deo v. State of Orissa A.I.R. 1953 S.C. 375. See also Sonapur Tea Co. v. Deputy Commr of Kamrup, A.I.R. 1962 S.C. 137. 13 State of Bihar v. Kameshwar Singh, A.I.R. 1952 SC 252; See also Gullapalli Nageswara Rao v. A.P. State Road Transport Corpn., A.I.R. 1959 S.C. 308; P. Vajravelu Muladiar v. Special Dy. Collector, A.I.R. 1965 S.C. 1017; R.S. Joshi v. Ajit Mills, A.I.R. 1977 S.C. 2279; D.C. Wadhwa v. State of Bihar, A.I.R. 1987 S.C. 579; Ashok Kumar v. Union of India, A.I.R. 1991 S.C. 1792; Grahak Sanstha Manch v. State of Maharashtra, A.I.R. 1994 S.C. 2319; Naga Peoples’ Movement of Human Rights v. Union of India, A.I.R. 1998 S.C. 431; Welfare Assn. v. Ranjit Gohil, A.I.R. 2003 S.C. 1266; Prof. Yashpal v. State of Chhatisgarh, A.I.R. 2005 S.C. 2026. 14 Kashmir Singh v. Union of India, A.I.R. 2009 S.C. (Supp) 511. 15 “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; cooperative societies.” 8

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corporate abrogates the rights of KSMB. Thus, the 2014 Act is a piece of colourable legislation, enacted to usurp the Federal Legislature’s legislative realm. 5.

Even if, it is admitted that the legislature of the Province of Gatoch had no intent to

encroach upon the legislative domain of the Federal Legislature, the legislation would still be colourable. This is because the doctrine of colourable legislation does not involve any question of mala fides or bona fides.16 The application of this doctrine is contingent merely on the question of a particular legislature having the legislative competence to enact a particular law. If the legislature lacks competency, the question of fides or intent does not arise.17 [C].

GATOCH CANNOT EXERCISE ITS LEGISLATIVE POWER UNDER THE CONCURRENT LIST AS IT IS ALREADY ‘OCCUPIED’.

6.

Entry 28 in the Concurrent List18 entitles the State and Central legislatures to enact

laws with respect to, inter alia, religious institutions. However, the Provincial legislature of Gatoch cannot enact the 2014 Act under the same because the doctrine of ‘occupied field’ prohibits it. 7.

The doctrine of ‘occupied field’ is relevant only in case of laws pertaining to entries in

the Concurrent list.19 The doctrine follows that in case the Parliament and a State legislature enact laws that operate in the same field, the former shall prevail because it has ‘occupied the field’.20 However, this happens only in cases where the law enacted by the State legislature is repugnant to the Central Legislation.21 Repugnancy is said to arise when one law cannot be obeyed without disobeying the other and such competing legislations are impossible to reconcile.22 8.

In the present case, the Federal Legislature, by enacting the 1966 Act, has occupied

the legislative field with respect to Entry 28 of the Concurrent List. Also, it is impossible to reconcile the 2014 Act and the 1966 Act in this regard, without disobeying one of them. This 16

Supra note 11. Dharam Dutt v. Union of India, A.I.R. 2004 S.C. 1295. See also State of V.P. v. Moradhwaj, A.I.R. 1960 S.C. 796; Board of Trustees v. Union College, A.I.R. 1962 S.C. 458; Shankaranarayana v. State of Mysore, A.I.R. 1966 S.C. 1571; R.S. Joshi v. Ajit Mills, A.I.R. 1977 S.C. 2279. 18 “Charities and charitable institutions, charitable and religious endowments and religious institutions.” 19 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 8678 (8th ed. 2010). 20 State of West Bengal v. Committee for Protection of Democratic Rights, A.I.R. 2010 S.C. 1476. See also Deep Chand v. State of U.P., A.I.R. 1959 S.C. 648; Premnath v. State of J. & K., A.I.R. 1959 S.C. 749; Barai v. Henry, A.I.R. 1983 S.C. 150. 21 Karunanidhi v. Union of India, A.I.R. 1979 S.C. 898; Ahmedabad Assn. v. Thakore, A.I.R. 1967 S.C. 648. 22 Zaverbhai v. State of Bombay, A.I.R. 1954 S.C. 752. See also Dharappa v. Bijapur Co-op Milk Producers Societies Union Ltd., A.I.R. 2007 S.C. 1848. 17

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is because both laws establish different corporations (KSMB and GKSMB) in order to administer the Kormi Shrines in Gatoch. Noticeably, there arises a repugnancy. Hence, Provincial Legislature of Gatoch does not possess the legislative competence to enact such a legislation.

II. THE GOVERNOR HAD NO DISCRETION IN THE RESERVATION OF THE BILL FOR THE ASSENT OF THE PRESIDENT AND THE FEDERAL GOVERNMENT WAS COMPETENT TO ISSUE DIRECTIONS TO THE GOVERNOR IN THIS REGARD 9.

In the present case, the Federal Government of Hindistan directed the Governor of

Gatoch to reserve the bill in question for the assent of the President vide a letter dated June 16, 2014.23 It is submitted that the Governor was bound by this advice as: firstly, he had no discretion in taking the said action [A] and; secondly, the Federal Government was competent to issue this direction to him [B]. [A].

THE GOVERNOR HAD NO DISCRETION IN THE RESERVATION OF THE BILL FOR THE ASSENT OF THE PRESIDENT.

10.

It is submitted that: (i)

The Governor is not explicitly required to exercise his discretion under the Constitution in the present case.

11.

The office of the Governor is a purely Constitutional office, and doesn’t normally

accord independent administrative powers to the Governor.24 Furthermore, per Art. 162 of the Constitution, the Governor is required to exercise his discretion only when the Constitution explicitly requires him to do so.25 An example of such a situation is the exercise of the Governor’s power under Art. 371A(2)(b) of the Constitution.26 12.

In the present case, it is submitted that the Governor is not explicitly required to

exercise his discretion in choosing to reserve a bill for the assent of the President under Art. 200 of the Constitution.27 In Sunil Kumar Bose v. The Chief Secretary, Government of West

23

Factsheet, ¶ 10. Rai Sahib Ram Jawaya Kapoor v. State of Punjab, A.I.R. 1955 S.C. 549. See also U.N.R. Rao v. Indira Gandhi, A.I.R. 1971 S.C. 1002; A. Sanjeevi Naidu v. State of Madras, A.I.R. 1970 S.C. 1102. 25 INDIA CONST. art. 162. See also 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; Gnanamani v. Governor of Andhra, A.I.R. 1954 A.P. 9. 26 INDIA CONST. art. 371A, cl. 2(b). 27 INDIA CONST. art. 200. 24

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Bengal,28 the court observed that Art. 200 of the Constitution was adopted along the lines of Sec. 75 of the Government of India Act, 1935. However, a provision in the latter that gave the Governor discretion when reserving a bill for the assent of the President in all cases was explicitly dropped in the present Constitution. Thus, the intention of the Governor not to have discretion in such cases is clear. Therefore, Mr. Khangotra did not have discretion in choosing to reserve the bill in question for the assent of the President. (ii)

The intent behind Art. 200 of the Constitution was to give the Governor no discretion in such cases. In S.R. Chaudhuri v. State of Punjab,29 the court underscored the importance of using

13.

Constituent Assembly debates to understand the intention behind Constitutional provisions at the time of interpretation. It is submitted that the intention to create an office for a Governor that would normally be devoid of any independent administrative authority is clear from transcripts of Constituent Assembly debates that ensued in this regard.30 14.

In the present case, the Governor was given directions to reserve the bill in question

for the assent of the President. It is submitted that he was bound by these directions when exercising his power under Art. 200 of the Constitution. This is because Art. 200 must necessarily be interpreted based on the intention of the framers of the Constitution with respect to the role of a Governor under the Constitution. Such an interpretation would restrict the freedom of the Governor and make the advice of the Federal Government binding on him in the present case. [B].

THE FEDERAL GOVERNMENT WAS COMPETENT TO ISSUE DIRECTIONS TO THE GOVERNOR TO RESERVE THE BILL FOR THE ASSENT OF THE PRESIDENT.

15.

It is submitted that: (i)

16.

The Federal Government exercises ostensible control over the Governor. Per Art. 156 of the Constitution of India, the Governor holds office “at the pleasure of

the President”. In Samsher Singh v. State of Punjab,31 the Court held that the pleasure of the President was exercised solely based on the advice he received from the Union Council of

28

Sunil Kumar Bose v. The Chief Secretary, Government of West Bengal, A.I.R. 1950 Cal. 274. S.R. Chaudhuri v. State of Punjab, (2001) 7 S.C.C. 126. 30 Statement of Dr. B.R.Ambedkar, CONSTITUENT ASSEMBLY DEBATES 455(3), “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 Samsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192. 29

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Ministers. The Union Government, therefore, maintains effective control over the appointment and termination of a Governor.32 17.

In this regard, eminent authors including H.M. Seervai opine that this control over the

appointment and termination of a Governor would extend to the Governor normally being amenable to directions issued by the Union Government regarding the conduct of his office.33 The clear intent for it to be so can also gleaned from transcripts of Constituent Assembly debates.34 Furthermore, the Governor serves as the representative of the State at the Union level.35 18.

In light of the above, it is submitted that the Federal Government exercises ostensible

control over the Governor in the exercise of his functions. In the present case, the Federal Government directed the Governor to reserve the bill in question for the assent of the President. The exercise of the aforementioned ostensible control over the Governor by the Federal Government would result in the Federal Government being amenable to such directions. Thus, the Federal Government’s competency to issue these directions in the present case cannot be questioned. (ii)

The actions of the Federal Government are in line with the nature of Constitutional quasi-federalism.

19.

In State of Rajasthan v. Union of India,36 the court observed that the Constitution is

part federal and part unitary, leaning towards the latter. It also has been observed that the nature of federalism enshrined in the Constitution can switch between being federal and unitary on a case to case basis.37 Furthermore, it has been observed that residual powers are vested with the Union Government in India as against with State Governments in other countries.38 This stands as testament to the unitary-leaning nature of quasi-federalism contained in the Constitution. The exercise of this power allows for the administrative dominance of the Union Government over those belonging to the State administrative framework.

32

Indian Muslim League v. Union of India, A.I.R. 1998 Pat. 156. 3 HORMASJI MANECKJI SEERVAI, CONSTITUTIONAL LAW OF INDIA, 3103 (4th ed. 2006). See also 8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 6105 (8th ed. 2010); Daljit Singh, Position of a State Governor in India, 22(3) THE INDIAN JOURNAL OF POLITICAL SCIENCE, 232, 235. 34 Statement of Shri B. Das, CONSTITUENT ASSEMBLY DEBATES 549 (June 2, 1949). 35 Rameshwar Prasad v. Union of India, A.I.R. 2006 S.C. 980, per Sabharwal C.J. 36 State of Rajasthan v. Union of India, A.I.R 1977 S.C. 1361. 37 State of Karnataka v. Union of India, A.I.R. 1978 S.C. 68. 38 Union of India v. H.S. Dhillon, A.I.R. 1972 S.C. 1061 33

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As submitted earlier, the Constitution provides for a clear intention to grant ostensible

control over the Governor to the Union Government.39 In light of this, it is submitted that the exercise of the unitary-leaning federal powers granted to the Union Government in justified in the present case, as it ties into the nature of control over the Governor envisaged in the Constitution. Thus, the Government of Hindistan was competent to direct the Governor to reserve his assent to the bill for the President, as contained in the letter dated June 16, 2014.

III. THE FEDERAL GOVERNMENT WAS COMPETENT TO ISSUE DIRECTIONS TO THE PROVINCIAL GOVERNMENT TO REFRAIN FROM NOTIFYING THE DATE OF COMMENCEMENT OF AN ACT PASSED BY THE PROVINCIAL LEGISLATURE. 21.

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

Hindistan directed the Government of Gatoch to not notify the date of commencement of the Act vide a letter dated July 2, 2014.40 It is to be noted that there was an absolute need for the notification of the law for it to come into force and thereby lead to the creation of the GKSMB.

41

In light of this, it is submitted that the Federal Government was competent to

issue this direction as firstly, the administrative control in this regard lay with the Federal Government [A] and; secondly, the action conforms to the nature of quasi-federalism enshrined in the Constitution [B]. [A].

THE ADMINISTRATIVE CONTROL IN THIS REGARD LAY WITH THE FEDERAL GOVERNMENT IN THE PRESENT CASE.

22.

In Jayanti Amrit Lal Shodhan v. F.N. Rana,42 the court observed that while

notification of a law is a legislative function in theory, it is typically carried out by States in the exercise of their executive power. Moreover, it is an established position of law that the exercise of executive power by States must necessarily come under the administrative control of the Union in matters where State Legislatures aren’t competent to legislate.43 Furthermore, the exercise of executive power of the Union Government extends to all matters upon which Parliament can legislate.44 On the other hand, States can exercise executive power only over 39

Section II[B](i), Written Submissions. Factsheet, ¶ 11. 41 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. 42 Jayanti Amrit Lal Shodhan v. F.N. Rana, A.I.R. 1964 S.C. 648. 43 Sat Pal v. State of Punjab, A.I.R. 1996 S.C. 107. See also 10 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 11129 (8th ed. 2010). 44 State of Rajasthan v. Union of India, A.I.R 1977 S.C. 1361. 40

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matters on which State legislatures can legislate.45 Also, as a general rule, the exercise of executive power by States is always subordinate to that of the Union.46 23.

As submitted earlier, in the present case, the Federal Parliament had competence to

legislate upon the management of Kormi shrines in Hindistan, while the Provincial Legislature of Gatoch did not.47 In light of this, it is submitted that the administrative control over the exercise of executive power in Gatoch with respect to the maintenance and administration of Kormi shrines had passed on to the Federal Government. Also, the exercise of the Federation’s executive power encompasses the regulation of Kormi shrines in Hindistan, since the Federal Parliament can legislate upon this matter. 24.

Therefore, it is submitted that the exercise of this administrative control over the

Province’s executive power by the Federal Government would extend to control over the notification of a law regarding the management of Kormi Shrines in Gatoch (2014 Act) passed by the Provincial Legislature. Thus, the Federal Government’s competency to issue the direction contained in the letter dated July 2, 2014, cannot be questioned. [B].

THE ACTION OF THE FEDERAL GOVERNMENT CONFORMS TO THE NATURE OF QUASIFEDERALISM ENSHRINED IN THE CONSTITUTION.

25.

As submitted earlier, the nature of quasi-federalism enshrined in the Constitution

tends towards being unitary.48 This nature of quasi-federalism provides for the exercise of additional power by the Federal Government over Provinces. This forms an additional principled basis to justify the actions of the Federal Government in the present case. 26.

The grounds declared for the exercise of this executive power by the Federal

Government over the Provincial Government of Gatoch include the fact that the Federal Parliament was in the process of enacting a comprehensive national law on the subject. 49 It is submitted that the exercise of this additional power over the Provinces would extend to ensuring that barriers are removed to the exercise of Federal legislative power in Hindistan. In the present case, the presence of a Provincial law on the matter of management of Kormi shrines in Gatoch would pose a barrier to the exercise of Federal power in this area. Thus, the

45

Satya Narayan Shukla v. Union of India, A.I.R. 2006 S.C. 2511; Sarkari Vikreta Sangh v. State of Madhya Pradesh, A.I.R. 1981 S.C. 2030. 46 Bharat Coking Coal Ltd. v. State of Bihar, (1990) 4 S.C.C. 557. 47 Section I, Written Submissions. 48 Section II[B], Written Submissions. 49 Factsheet, ¶ 10.

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nature of quasi-federalism enshrined in the Constitution provides for an adequate justification of the actions of the Federal Government in the present case.

IV. REMOVAL OF THE GOVERNOR WAS CONSTITUTIONAL. 27.

In the present case, the Governor of the Province of Gatoch, Mr. Champak Khangotra

was removed from his office on June 30, 2014.50 However, the Governor of a State holds office during the pleasure of the President as per the provisions of Art. 156(1) of the Constitution.51 It is submitted that the removal of Mr. Khangotra was Constitutional as: firstly, it was in accordance with federal principles [A] and; secondly, it was not arbitrary [B]. [A]. 28.

THE REMOVAL WAS IN ACCORDANCE WITH FEDERAL PRINCIPLES.

As submitted earlier, the Constitution holds a quasi-federal structure that sanctions the

exercise of additional power by the Union Government over the States.52 It is submitted that the removal of Mr. Khangotra was in accordance with the quasi-federal model as: firstly, the Governor’s office is subject to the pleasure of the President and has no fixed tenure (i) and; secondly, removal on ground of non-compliance of the Federal Government’s direction further upholds the quasi-federal structure (ii). (i)

The Governor’s office is subject to the pleasure of the President and has no fixed tenure.

29.

Per Art. 156(1) of the Constitution, the Governor holds office during the pleasure of

the President.53 Moreover, Art. 156(3) provides for an office term of five years for the Governor.54 It has, however, been held that that the Governor has no fixed term of office. The operation of Art. 156(3) of the Constitution is subject to Art. 156(1) of the Constitution. Thus, the President can cut short the five-year term of the Governor through the exercise of his pleasure.55 30.

In the present case, Mr. Khangotra’s office term was shortened through the exercise

of Presidential pleasure under Art. 156(1). Therefore, it is submitted that since the power of his removal is granted in the Constitution itself, it is not in violation of any federal principles. 50

Factsheet, ¶ 12 line 1. INDIA CONST. art.156, cl. 1. 52 State of Rajasthan v. Union of India, A.I.R 1977 S.C. 1361. See also Union of India v. H.S. Dhillon, A.I.R. 1972 S.C. 1061; State of Karnataka v. Union of India, A.I.R. 1978 S.C. 68. 53 INDIA CONST. art.156, cl. 1. 54 INDIA CONST. art.156, cl. 3. 55 Surya Narayan Choudhary v. Union of India, A.I.R. 1982 Raj 1. 51

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This is because the source of the nature of federalism that regulates Centre-State/FederalProvincial relations is the Constitution itself. Thus, an activity expressly provided for by this very Constitution must necessarily comply with the country’s brand of federalism. (ii)

Removal on ground of non-compliance of the Federal Government’s direction further upholds the quasi-federal structure.

31.

As submitted earlier, the Governor is required to conform to the directions that he

receives from the Union Government.56 Failure to do so, disregards the quasi-federal structure of the Constitution. In the present instance, Mr. Khangotra had failed to follow the directions issued by the Federal Government to reserve the bill for Presidential assent and had therefore disregarded the quasi-federal structure. It is thus submitted that the withdrawal of Presidential pleasure so as to remove Mr. Khangotra is in complete accordance with the quasi-federal model of the Constitution. [B].

THE REMOVAL WAS NOT ARBITRARY.

In B.P. Singhal v. Union of India,57 it was ruled that the withdrawal of the President’s

32.

pleasure under Art. 156(1) could be subjected to judicial review in cases where prima facie arbitrariness can be shown. It is submitted that, in the present case, prima facie arbitrariness in the removal of Mr. Khangotra cannot be shown as: firstly, there was a valid reason for his removal (i) and; secondly, it did not violate the principle of audi alteram partem (ii). (i) 33.

There was a valid reason for the removal of Mr. Khangotra. In cases where a valid reason for the removal of the Governor exists, a prima facie

case of arbitrariness cannot be made.58 Moreover, violation of the Constitution has been accepted as a sufficient and valid ground for removal of the Governor. 59 It is submitted that, in the present case, there was a valid reason for the removal of Mr. Khangotra. As submitted earlier, the Federal Government exercises ostensible control over the Governor under the Constitution. The governor is amenable to the directions given to him by the Federal Government.60 Therefore, non-compliance of the Federal Government’s directions by Mr. Khangotra constituted a violation of the Constitution. Due to the presence of such a valid

56

Section II[B], Written Submissions. B.P.Singhal v. Union of India, (2010) 6 S.C.C. 331. 58 Id. 59 Statement of Dr. B.R.Ambedkar, CONSTITUENT ASSEMBLY DEBATES (May 31, 1949). 60 Section II[B][i], Written Submissions. 57

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reason, no prima facie case of arbitrariness can be established. Therefore, the removal of Mr. Khangotra was Constitutional. (ii)

The removal of Mr. Khangotra did not violate the principle of audi alteram partem.

34.

It may be contended that the removal of Mr. Khangotra was made in violation of the

principle of audi alteram partem.61 However, if a statutory provision implies the exclusion of the application of any rules of natural justice, then, such a principle cannot be read into the Fundamental rule or provision.62 35.

It is thus submitted that the exclusion of the principle of audi alteram partem is

implied in the case of termination of the office of the Governor. This is evident from the fact that Art. 311 explicitly provides for an opportunity to public servants to present their case on removal.63 However, no such provision for the application of audi alteram partem is provided under Art. 156. This implied exclusion has been reaffirmed, as it has been held that in cases of removal under Art. 156(1), the audi alteram partem rule does not apply.64 36.

In the present instance, Mr. Khangotra was removed from office under Art. 156

without giving him an opportunity to present his case. Since the exclusion of such a principle is implied, his removal was not in violation of the principle of audi alteram partem.

V. DISMISSAL OF THE GOVERNMENT OF GATOCH WAS CONSTITUTIONAL. 37.

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

a Presidential Proclamation and President’s rule was imposed.65 Under Art. 356(1) of the Constitution, President’s rule can be imposed in a Province through a proclamation, if the President is satisfied that a situation has arisen in which the Provincial Government cannot work in accordance with the provisions of the Constitution.66 It is submitted that the dismissal of the Government of Gatoch was constitutional as: firstly, it was dismissed in accordance with requisite procedure [A]; and secondly, it was dismissed without a mala fide intention [B]. 61

Audi alteram partem is a principle of natural justice that requires that no one should be condemned unheard. See BLACK’S LAW DICTIONARY 170 (2nd edn 1910). 62 Union of India v. Col. J.N. Sinha, (1971) 1 S.C.R. 791. 63 INDIA CONST. art.311, cl. 2. 64 Indian Muslim League v. Union of India, A.I.R. 1998 Pat. 156. 65 Factsheet, ¶ 14 line 1-2. 66 INDIA CONST. art.356, cl. 1.

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THE GOVERNMENT OF GATOCH WAS DISMISSED IN ACCORDANCE WITH REQUISITE PROCEDURE.

38.

In the province of Gatoch, municipalities’ elections had not been conducted even after

ten months had passed since the date of the expiry of its tenure. 67 To remedy this situation, the Government of Gatoch was dismissed under Art. 356. In situations where there is interference with the Governance of the State, the issue of a Proclamation under Art. 356 is merited.68 It has been noted in Constituent Assembly debates that the drastic power of Art.356 should be used only after other remedies have failed. The President should issue a warning regarding the failure of the constitutional machinery to the concerned State. Only after the failure of the State to respond to the same, should Art.356 be imposed. 69 The Supreme Court has also reaffirmed the necessity of issuing such a warning.70 39.

It is submitted that in the present case, the President has taken this remedial measure.

He issued a warning to the Provincial Government of Gatoch and also directed it to hold elections immediately.71 However, after the issue of this warning, the Provincial Government of Gatoch failed to respond to the same with corrective action. This is evident from the fact that the elections to the municipalities had not been conducted even after ten months from the date of the expiry of its tenure.72 Therefore, in the absence of any corrective action on part of the Province and its adverse impact on the Provincial Governance, the imposition of Art. 356 was merited and as per requisite procedure. [B]. 40.

THE GOVERNMENT OF GATOCH WAS DISMISSED WITHOUT A MALA FIDE INTENTION. The issue of a Presidential Proclamation under Art. 356 is bona fide if it is based on

objective material indicating a breakdown of the State Constitutional machinery.73 The existence of such objective material (usually the Governor’s report) is a condition precedent that must be fulfilled before the President issues any Proclamation under Art. 356. 74 It is therefore submitted that in the present instance, the report by Mr. Khangotra, contained valid objective material and the Presidential proclamation premised on it is bona fide as: firstly, failure to conduct municipalities’ elections constituted a failure of the Constitutional 67

Factsheet, ¶ 13 line 14. 9 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 10949 (8th ed. 2010). 69 Id. 70 S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918; Rameshwar Prasad (VI) v. Union of India, A.I.R. 2006 S.C. 980. 71 Factsheet, ¶ 13 line 10-11. 72 Factsheet, ¶ 13 line 14. 73 State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361. 74 9 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 10949 (8th ed. 2010). 68

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machinery of Gatoch (i) and; secondly, the failure to conduct the municipalities’ elections is attributable to the Government of Gatoch (ii). (i)

Failure to conduct municipalities’ elections constituted a failure of the Constitutional machinery of Gatoch.

41.

Failure of constitutional machinery refers to an actual and imminent breakdown that

creates a situation that cannot be remedied, except by invoking Art. 356 immediately.75 Subversion of the Constitution that disintegrates democratic social fabrics is an accepted instance of breakdown of constitutional machinery.76 Moreover, according to Art. 243U,77 the electoral process that results in a new municipal corporation should be completed before the expiry of its five-year tenure.78 42.

It is submitted that in the instant case, an actual and imminent failure of the

constitutional machinery of Gatoch occurred, as there was a failure to conduct elections to the municipalities. The elections to the municipalities of Gatoch had not been conducted even after ten months from the expiry of its tenure. This amounted to a clear subversion of Art. 243U of the Constitution and also undermined the spirit of federalism and democracy. Thus, without the issue of a Proclamation, the situation could not have been remedied. Therefore, the Governor’s report was valid as such a failure clearly amounted to a breakdown of the Constitutional machinery of Gatoch. (ii)

The failure to conduct the municipalities’ elections is attributable to the Gatoch Government.

43.

Under Article 243ZA of the Indian Constitution, the task of conducting

municipalities’ elections is that of the State Election Commission.79 However, the Provincial Government also has a role to fulfil in these elections in terms of appointment of the State Election Commissioner by the Governor.80 It is submitted that the failure to conduct the elections to the municipalities is attributable to the Provincial Government.

75

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. 76 S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. See also 9 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 10953 (8th ed. 2010). 77 INDIA CONST. art. 243K, cl. 3(a). 78 Kishansing Tomar v. Municipal Corporation Of The City Of Ahmedabad, A.I.R. 2007 S.C. 269. 79 INDIA CONST. art. 243ZA, cl. 1. 80 INDIA CONST. art. 243K, cl. 1.

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In the present case, in the absence of any factual events indicating otherwise, it is

clear that the Government of Gatoch failed to fulfill its obligations with regard to municipalities’ elections. As a result of this, the Election Commission could not take over in Gatoch and perform its duty. Therefore, in attributing the failure of conducting the municipalities’ elections to the Gatoch Government and asking for imposition of Art. 356, Mr. Khangotra’s report was bona fide.

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PRAYER

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

The Provincial Legislature of Gatoch did not have the legislative competence to enact the Gatoch Kormi Shrines Management Act, 2014.

II.

The Governor did not have discretion in choosing to reserve the bill for the assent of the President and the Federal Government was competent to issue directions to the Governor in this regard.

III.

The Federal Government was 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 not against federal principles and was constitutional.

V.

Dismissal of the Provincial Government of Gatoch was in line with requisite procedure and without 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 Respondent.

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