Petitioner Memorial

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20161

TEAM CODE: TC 14

IN THE HON’BLE SUPREME COURT OF INDIANA PETITION NO.______/2016 IN THE MATTER OF

MR. N. YADAV & ORS

………Petitioner

V.

UNION OF INDIANA

………Respondent

WRITTEN SUBMISSION ON BEHALF OF THE APPELENT

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20162

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

LIST OF ABBREVATIONS 1. Govt.

Government MEMORANDUM ON BEHALF OF APPELENT

3 4 8 9 11 13 14 21

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20163

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

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

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20164

TABLE OF CASES 1

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

2

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

3

Bajirao Baliram Mali V The State Of Maharashtra on 3 September, 1976[(1977) 79 BOMLR 189]

4

[1973] Suppl. SCR 1

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20165

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

Special Reference No. 1 of 1964.

BOOKS, ARTICLES, JOURNALS AND REPORTS

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

 The Constitution of India 1950, O.P. Rai (2nd Edition)  Raj Mannar Committee 1969

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20166

WEBSITES      

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

NEWSPAPERS AND MAGZINES    

The Times of India The Hindu Outlook Frontline

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20167

STATEMENT OF JURISDICTION

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20168

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 20169

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201610

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

2) WHETHER PRESIDENT’S RULE IN THE STATE COULD BE IMPOSED DESPITE ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH? A. WHEN

IS

PRESIDENT’S

RULE

APPLICABLE

UNDER

CONSTITUTION?

3) WHETHER GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE ASSEMBLY AMOUNTS TO CONSTITUTIONAL BREAKDOWN AND THUS CALLS FOR IMPOSITION OF PRESIDENT’S RULE? A. WHAT IS CONSTITUTIONAL BREAKDOWN? B. DOES CONSTITUTIONAL BREAKDOWN CALL FOR IMPOSITON OF PRESIDENT’S RULE?

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201611

4) WHETHER THE IMPEACHMENT MOTION PASSED BY THE LEGISLATIVE ASSEMBLY WAS VALID?

SUMMARY OF ARGUMENTS MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201612

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

ARGUMENTS ADVANCED

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201613

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

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

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

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201614

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

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

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201615

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

IS

PRESIDENT’S

RULE

APPLICABLE

UNDER

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

a.)

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

authority in the State other than the Legislature of the State; declare that the powers of the Legislature of the State shall be exercisable by or

c.)

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

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201616

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

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

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

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201617

B. WHETHER

CONSTITUTIONAL

BREAKDOWN

CALLS

FOR

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

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201618

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

10 Special Reference No. 1 of 1964

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201619

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

MEMORANDUM ON BEHALF OF APPELENT

1st BALJEET SHASTRI NATIONAL MOOT COURT COMPETITION 201620

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

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

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

Sd/-………………………….. (Counsel for the Appellant)

MEMORANDUM ON BEHALF OF APPELENT