BEFORE THE HON’BLE SUPREME COURT OF INDIA

CIVIL APPEAL NO …………/2016

FILED UNDER ARTICLE 133 OF THE CONSTITUTION OF

INDIA, 1950

TDP and Ors APPELLANT

V.

UNION OF INDIA and Anr RESPONDENT

____________________________________________________

ON SUBMISSION TO

THE HON’BLE SUPREME COURT OF INDIA

_____________________________________________________

__________________________________________________

MEMORIAL FOR THE RESPONDENT

___________________________________________________

Written submission for the Respondent Page 1

 TABLE OF CONTENTS

LISTOF ABBREVIATIONS....................................................3-4

STATEMEN OF JURISDICTION...........................................5

INDEXOF AUTHORITIES......................................................6

QUESTIONS PRESENTED......................................................7

STATEMENT OF FACTS.........................................................8

SUMMARY OF PLEADINGS..................................................9

PLEADINGS..............................................................................

I. WHETHER GOVERNOR HAS THE POWER TO CONVENE THE ASSEMBLY SESSION

WITHOUT THE AID AND ADVICE OF THE GOVERNMENT?
II. WHETHER PRESIDENT’S RULE IN THE STATE COULD BE IMPOSED DESPITE
ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH?
III. 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?

PRAYER………………………………………………………….16

Written submission for the Respondent Page 2

 LIST OF ABBREVIATIONS

AIR - All India Reporter

Anr. - Another

Art. - Article

Bom - Bombay

Cal - Calcutta

DLT - Delhi Law Times

Edi. - Edition

Guj - Gujarat

Hon’ble - Honourable

ILR - Indian law report

Ker - Kerala

Pun - Punjab

Mad - Madras

MP - Madhya Pradesh

n. - Note

No. - Number

Ors. – Others

P. - Page

Pvt. - Private

Raj - Rajasthan

Written submission for the Respondent Page 3

RLR - Rajasthan Law Reports

S. - Section

SC - Supreme Court

SCC - Supreme Court Cases

SCW - Supreme Court Weekly

SCR - supreme Court Reports

v. - versus

vol. - Volume

WB - West Bengal

Written submission for the Respondent Page 4

 STATEMENT OF JURSDICTION

THE APPELLANT HEREBY HAS THE HONOUR TO HUMBLY SUBMIT THIS

MEMORANDUM OF THE PRESENT CASE FILED UNDER THE ART. 133 OF THE
CONSTITUTION OF INDIA, 1950.

Written submission for the Respondent Page 5

 INDEX OF AUTHORITIES

CASES CITATION
Lila Gupta v. Laxmi Narian AIR 1978 SC 1351
Independent Thought v. Union of India and Anr AIR 2017 SC4904
Manish Singh v. State Govt Of NCT And Ors AIR 2006 Delhi 37.
T. Sivakumar v. Inspector of Police AIR 2012 Mad 62.
Ravi Kumar v. The State 124 (2005) DLT 1
Anurag Kumar Gangwar v. State and Ors 2010 LE(Del) 101
Sachindra Nath Mazumder v. Bistupada Das 1978 Cri LJ 1494.
Sunil Kumar v. State NCT of Delhi 2007(2) LRC 56 (Del).
Makemalla Sailoo v. Superintendent of Police, Nalgonda AIR
District,
2007 (DOC) 135.
Gaurav Nagpal v. Sumedha Nagpal,. AIR 2009 SC 557

Ravi Kumar v. The State And Anr., 124 (2005) DLT 1

Manish Singh v. State Govt Of Nct And Ors AIR 2006 Delhi 37.

Written submission for the Respondent Page 6

 QUESTIONS PRRSENTED

A) WHETHER GOVERNOR HAS THE POWER TO CONVENE THE

ASSEMBLY SESSION WITHOUT THE AID AND ADVICE OF THE
GOVERNMENT?

B) WHETHER PRESIDENT’S RULE IN THE STATE COULD BE IMPOSED

DESPITE ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH?

C) 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?

Written submission for the Respondent Page 7

STATEMENT OF FACTS

Written submission for the Respondent Page 8

 SUMMARY OF PLEADINGS

I. GOVERNOR HAS POWER TO CONVENE THE ASSEMBLY SESSION

WITHOUT THE AID AND ADVICE OF THE GOVERNMENT

II. PRESIDENT’S RULE IN THE STATE COULD BE IMPOSED DESPITE

ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH

III. GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE

ASSEMBLY AMOUNT TO CONSTITUTIONAL BREAKDOWN AND THUS
CALLS FOR IMPOSITION OF PRESIDENT’S RULE

Article 356 of the Constitution of India provides that presidents rule maybe imposed on
recommendation of the Governor that the state cannot be carried on in accordance with
the provisions of the constitution. In the matter at hand Article 174 is violated and
imposition of Presidents rule is thus justified.

Written submission for the Respondent Page 9

 ARGUMENTS ADVANCED

1. THE GOVERNOR HAS POWER TO CONVENE THE ASSEMBLY SESSION

WITHOUT THE AID AND ADVICE OF THE GOVERNMENT

The constitution of India by Article.153 creates the office of the Governor. The executive
power of the state is vested in the Governor .He shall be the supreme executive authority of the
state. India being a federal state has a central executive system and a state executive system, to
which the governor being the important person to head the executive system so being created. He
Shall exercise the power either directly or through officers subordinate to him.

As held in Emperor v. Sibnath Banerjee1 the expression officers subordinate to him mentioned
in Article 154 includes a Minister as well. By the backing and support of the above mentioned
case it becomes clear that the governor is a person above the ministers. Which means governor
has the power to decide on administrative action beyond boundaries created by the political
pressure of the ruling government.governor being an independent person to decide on matters
which are vital to the betterment of the state and protect the democratic system of the federal
state.

Ordinance making power being the discretionary power of the governor 2

All these powers are vested with the governor by law through the constitution of India.and the
governor of a state is appointed by the president of India and holding his office during the
pleasure of the president of India by which he is not a person of power below the legislators or
any executive personnel of a state.

The ill behaviour of the chief minister and the legislators on his side against the other members
not only affect the concerned MLA’s or the ministers but it also affects the public at large.
Because of the long going arguments and protests the public at large is being affected and are
suffering a lot at the moment.

Relying on the decisions rendered by this Court in the Samsher Singh case, and in Madhya
Pradesh Special Police Establishment v. State of Madhya Pradesh 3, as also, in State of Gujarat
v. Justice R.A. Mehta4, and especially in the Satya Pal Dang case13, it was submitted, that the
1
AIR 1942 P C 102
2
V N SHUKLA , constitution of india ,13th edition , page 399
3
(2013) 3 SCC 1
4
(2004) 8 SCC 788

Written submission for the Respondent Page 10

Governor’s power to prorogue the Legislative Assembly under Article 174(2) was absolute, and
without any restriction and restraint, and that, the Governor could exercise his said power, in his
own discretion without any aid or advice. The prorogation of either house is permitted to
governor of a state by the constitution of India through Article 174. By which there exist no
question as to whether the governor has power to convene the assembly session without the aid
and advice of the government.

Having invited our attention to Article 163(2), it was submitted, that the power of the Governor
with reference to a situation, in which he is to act in his own discretion is not only final, but also
that, the validity of the exercise of such discretion by the Governor, cannot be called in question,
before any Court. It was asserted, that no one whatsoever had the right to determine, whether the
Governor ought or ought not to have acted, in his discretion.5

There would be many situations where, for reasons of peril to democratic principles, the
Governor was liable to act at his own, without subjecting himself to the aid and advice of the
Chief Minister and his Council of Ministers. It was explained, that in matters where the
Governor is of the view, that the advice of the Council of Ministers was likely to be biased or
partisan, or where there is a conflict of interest between the Council of Ministers on the issue
under consideration, it would be open to a Governor to act at his own. And in such cases, even if
advice is tendered by the Council of Ministers, the Governor could legitimately ignore the same.
It was pointed out, that the above position was reiterated in the Justice R.A Mehta case16,
wherein this Court while interpreting Article 163(2) concluded, that it would be permissible for
the Governor to act without ministerial advice, even in the absence of an express provision in the
Constitution.6

Hence it can be observed that from all the above facts and circumstances ,the governor is the top
executive auithority of the a state who is entrusted with a huge number of powers and
responsibilities. And to which he having several obligations to fulfil for the smooth running of
the particular state to which he is concercerned. To protect the system to which he attached to
he , The governor has to act in a responsible manner even if it would ruin his friendly relations .
here in this case the ministry is not in a position to maintain and lead a healthy government , for
which the governor had to interfere and call for an emergency session. The arguments of the
government is that the session has not been convened according to their consent. It is true and
correct, but their consent is immaterial because they are not in healthy position to maintain a
sound government. That is the reason why the governor had to convene the assembly session
without the aid and advice of the government.

Nothing is beyond and above the law.

5
ibid
6
CIVIL APPEAL NOS. 6203-6204__OF 2016

Written submission for the Respondent Page 11

 2. PRESIDENT’S RULE IN THE STATE COULD BE IMPOSED DESPITE
ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH.

The constitutional machinery failure is the reason to impose the president’s rule in the state. The
question here is whether the president’s rule can be imposed during the pendency of an ongoing
litigation and that too before the constitutional bench . And the ultimate answer is ,yes that can
be identified from the below decisions and resonings:

Article 356 provides for the imposition of emergency in case of failure of constitutional
machinery in States. According to the article, the president on receipt of a report from the
governor of a State or otherwise, that the government of the State is not being carried according
to constitutional provisions, impose the emergency situations as provided under Article 356. The
two most important elements of Article 356 are:

1. ‘On receipt of a report from governor or otherwise’, and

2. ‘A situation has arisen in which the Government of the State cannot be carried on
in accordance with the constitution.’7

in the case of BijayananadaPatnaik v. President of India, in one of its observations pointed out
that, the Governor would be justified in recommending President’s rule only after a ministry fall
for want of majority, and there is no one else to from an alternative ministry, and not in
anticipation of such fall.8

In furtherance The Sarkaria Commission has noticed that in a number of situations of political
instability in States, the Governors recommended President's Rule under Article 356 without
exhausting all possible steps under the Constitution to induct or maintain a stable Government.

 Article 356 which empowers the President of India to assume to himself the powers of the State
etc., substantiates the fact that the States are not sovereign and hence, the Union of India while
invoking Article 3 has been totally violating the fundamental feature of the Constitution under
dignity of the individual secured by the various freedoms under Part-III of the Constitution of
India9.

7
AIR 1968 P&H 441
8
AIR 1974 Or. 52
9
AIR 2014 13

Written submission for the Respondent Page 12

 Proclamation under Article is 356 of the constitution is open to judicial review, If it has been
made ,upon consideration ,which is wholly extraneous ,irregular and irrelevant to the purpose for
which the power under Article 356 of the constitution has been conferred by the constitution. In
other words, where there is “reasonable nexus” between the reasons disclosed for the
proclamation and the situation of the state are the very vital for proclaim the president’s rule
even during the pendency of a litigation.10

Hence here in the current case it becomes clear and transparent that there exist a controversial
situation within the legislative assembly and that too even within the same party, or to be direct
the issue is with the government and and their political party members. To be specific the fight
is between the ruling MLA’s and ministers. Which here means the internal politics is actually
affecting the democratic system of the state in an adverse manner. Which has created a political
instability within the state, due to which there exist no question should there be a presidential
rule or not under the Article 356 of the Indian constitution. To settle the political instability there
should be a presidential interference.

3. GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE ASSEMBLY

AMOUNTS TO CONSTITUTIONAL BREAKDOWN AND THUS CALLS FOR
IMPOSITION OF PRESIDENT’S RULE
10
AIR 1982 SC 710

Written submission for the Respondent Page 13

Article 355 imposes a duty on the centre to ensure that the government of every state is carried
on in accordance with the provisions of the constitution. It is this duty in performance of which
the centre takes over the government of a state under article 356.11

The constitutional machinery in a state may fail to function in a numerous ways. There may be a
political instability where no party is in a position to form a government, a constitutional break
down, where ministry acts contrary to the provisons of the constitution, which may bring about
the use of the machinery, provided by article 356.12

In the matter at hand the Governor of the State Of Tarunachal Pradesh informed the
constitutional breakdown in his state and called for the presidents immediate intervention-
whereby the president imposed a presidents rule.13

The powers of president under Article 356 have been frequently exercised since the
commencement of the constitution. The occasions for its exercise emphasize not only the
importance of the power in maintaining stable governments in the state, but also the vital role
which the governor has to play enabling the union executive to exercise the powers vested in it
under article 356..14

Afore said para gives an idea into the responsibility and importance of governor in enabling the
president to understand the constitutional situation in a state. Governor being the head of the
executive in the state holds the duty of informing the president whether or not he should
intervene to take over the control of the state government to uphold the constitutional mandate15.
Such vast discretionary power to the governor is granted under Article 356(1) of the constitution
of India that report of governor is an important rather vital piece of information regarding a
state’s situation.16

The compelling question to be answered in this issue is whether violation of any provision of the
constitution be a valid ground for the imposition of presidents’ rule. In that regard the courts
attention is invited to the judgment provided below.

11
J N Pandey, Constitutional law of India, page 658 ,56th edn. 2019
12
S R Bommai V. Union Of India 1994 SCC (3) 1
13
Para 13 of Moot proposition.
14
State of Rajasthan v. union of india 1977 SCC (3) 592
15
B.P. Singhal v. Union of India, (2010) 6 SCC 331
16
Shamsher singh v. state of Punjab, AIR 1974 SC 2193

Written submission for the Respondent Page 14

In State of Rajasthan v. Union of India17 it was pointed out that

Article 356 (1) uses the words ‘cannot be carried out on accordance with the provisions of the
constitution ‘ is having a very wide and important meaning thereby’ failure to comply with each
and every provisions of the constitution’. Fazal Ali J (vide para 209) gives a wider meaning to
this expression by equating it with ‘break down of constitutional machinery’.

Relying upon the above judgement it is clear that failure to comply with any of the provisons of
the constitution by the state could result in the imposition of presidents’ rule.

In the instant matter whether Article 174 of the constitution of India is violated is to be
examined.

Article 174(1) of the constitution of India provides that

“The governor 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 the last
sitting in one session and the date appointed for its first sitting in the next session “.18

In the matter at hand the governor was unable to summon the house on time due to the political
instability in the state.19

Non- observance of the provisions of Article 174(1) in the present situation would mean that the
Government of the State cannot be carried in accordance with the provisions of the Constitution
within the meaning of Article 356(1) of the Constitution.

Hence it is made clear that gap of six months between two sessions of the state assembly
amounts to constitutional breakdown and thus the call for imposition of president’s rule is
justified.

CONCLUSION AND PRAYER

17
Supra n.2
18
PM Bakshi, The Constitution Of India , page no. 150 , 19th edn 2019
19
Para 6 ,7&8 of the moot proposition

Written submission for the Respondent Page 15

In the light of the issues raised arguments advanced and authorities cited the Appellant humbly prays
that this Hon’ble Supreme court may kindly adjudge and declare that:

I. GOVERNOR HAS POWER TO CONVENE THE ASSEMBLY SESSION

WITHOUT THE AID AND ADVICE OF THE GOVERNMENT?

II. PRESIDENT’S RULE IN THE STATE COULD BE IMPOSED DESPITE ONGOING

LITIGATION BEFORE THE CONSTITUTION BENCH?

III. GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE ASSEMBLY
AMOUNTS TO CONSTITUTIONAL BREAKDOWN AND THUS CALLS FOR
IMPOSITION OF PRESIDENT’S RULE?

And may kindly pass any order that this Hon’ble supreme court may deem fit. And for this act of
kindness the petitioner in duty bound shall for ever pray.

Respectfully submits

Counsel for the appellants

Sd/-

Written submission for the Respondent Page 16