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

4th RGNUL National Moot Court Competition, 2015
4TH RGNUL NATIONAL MOOT COURT COMPETITION, 2015
|R-TC-07|
|R-TC-07|
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 GatochPetitioner
VERSUS
Federation of Hindistan.Respondent
Petition No.______ of 2015
Rules, 2013)
Mr. Champak Khangotra.Petitioner
VERSUS
Federation of Hindistan.Respondent
Petition No.______ of 2015
Rules, 2013)
Mr. Somesh HaiderPetitioner
VERSUS
Federation of Hindistan..Respondent
MOST RESPECTFULLY SUBMITTED,

COUNSELS APPEARING ON BEHALF OF THE RESPONDENT.
Page 1 of 28
|R-TC-07|
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
Page 2 of 28
|R-TC-07|
[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
Page 3 of 28
|R-TC-07|
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
Honble
Honourable
No.
Number
Pat
Patna
PC
Privy Council
SC
Supreme Court
SCC
Supreme Court Cases
Sec.
Section
v.
Versus
Page 4 of 28
|R-TC-07|
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
|R-TC-07|
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
|R-TC-07|
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.
Page 7 of 28
OF
|R-TC-07|
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 Honble Court.
II. PETITION NO.______ OF 2015

III. PETITION NO.______ OF 2015

Page 8 of 28
|R-TC-07|
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
|R-TC-07|
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 GOVERNMENTS 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
Presidents 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 PRESIDENTS 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 Governors report, the
Government of Gatoch was dismissed on October 10, 2014 by a Presidential Proclamation,
and Presidents 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
|R-TC-07|
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?
Page 11 of 28
|R-TC-07|
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
|R-TC-07|
Federal Government. Provinces typically carry out the act of notification of a law in the
exercise of their executive power. Since the Provincial Legislature wasnt 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.
Page 13 of 28
|R-TC-07|
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
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
Page 14 of 28
|R-TC-07|
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 KSMBs 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
Page 15 of 28
|R-TC-07|
corporate abrogates the rights of KSMB. Thus, the 2014 Act is a piece of colourable
legislation, enacted to usurp the Federal Legislatures 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
Page 16 of 28
|R-TC-07|
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 doesnt 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
Governors 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
Page 17 of 28
|R-TC-07|
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
Page 18 of 28
|R-TC-07|
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 Governments 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
Page 19 of 28

20.
|R-TC-07|
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 arent 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
Page 20 of 28
|R-TC-07|
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 Federations 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
Provinces 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 Governments 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.
Page 21 of 28
|R-TC-07|
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
Governors 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 Governments direction
further upholds the quasi-federal structure (ii).
(i)
The Governors 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. Khangotras 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
54
55
Surya Narayan Choudhary v. Union of India, A.I.R. 1982 Raj 1.
51
Page 22 of 28
|R-TC-07|
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 countrys brand of federalism.
(ii)
Removal on ground of non-compliance of the Federal Governments

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 Presidents
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 Governments 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
Page 23 of 28
|R-TC-07|
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 Presidents rule was imposed.65 Under Art. 356(1) of the
Constitution, Presidents 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 BLACKS LAW DICTIONARY 170 (2nd edn 1910).
62
Union of India v. Col. J.N. Sinha, (1971) 1 S.C.R. 791.
63
64
Indian Muslim League v. Union of India, A.I.R. 1998 Pat. 156.
65
Factsheet, 14 line 1-2.
66
Page 24 of 28

[A].
|R-TC-07|
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 Governors 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

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
73
State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361.
74
68
Page 25 of 28
|R-TC-07|
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 Governors 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.
Page 26 of 28

44.
|R-TC-07|
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. Khangotras report was bona fide.
Page 27 of 28
|R-TC-07|
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.
Page 28 of 28

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

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

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

Uploaded by

Copyright:

Available Formats

4th RGNUL National Moot Court Competition, 2015