Before

THE HONOURABLE SUPREME COURT OF INDIA

Appellate Jurisdiction U/Art.136 And Advisory Jurisdiction U/Art.143 Civil Appeal No. 244/2022

LENIN BUDDI.....APPELLANT 1 MARX BUDDI.APPELLANT 2 v. UNION OF INDIA..RESPONDENT 1 STATE OF KARNATAKA...RESPONDENT 2

With Presidential Reference No. 1/2022

IN RE IMPEACHMENT OF THE PRESIDENT

MEMORANDUM for APPELLANTS

-Table of ContentsTABLE OF CONTENTS INDEX OF AUTHORITIES .......................................................................................................... III STATEMENT OF JURISDICTION ..................................................................................................X STATEMENT OF FACTS ............................................................................................................ XI STATEMENT OF ISSUES ........................................................................................................... XII SUMMARY OF ARGUMENTS ................................................................................................... XIII ARGUMENTS ADVANCED ........................................................................................................... 1 1. The act of the President in granting sanction under the Prevention of Corruption Act is

illegal. ..................................................................................................................................... 1 1.1. The President is Not The Competent Authority under the Prevention of

Corruption Act, 1988 to grant Sanction for the Prosecution of the Buddi Brothers. ......... 1 1.1.1. 1.1.2. The Speaker Of The Lok Sabha Is The Appropriate Sanctioning Authority. ... 1 Alternatively, the sanction granted by the President should be considered

inoperative without an additional sanction from the Speaker of the Lok Sabha. ........... 2 1.2. Arguendo, the Presidential Sanction is contrary to Article 74 of the Constitution. 3 The President is Bound By The Advice Of The Council Of Ministers In The

1.2.1.

Discharge Of All Executive Functions. ........................................................................... 3

MEMORIAL for APPELLANT -i-

-Table of Contents1.2.2. The President is bound by Ministerial advice in granting sanctions, despite

the same being a statutory function. ............................................................................... 4 1.3. The Dictum Of The Courts As Regards To The Power Of The Governor To Grant

Sanction Is Inapplicable To The Post Of The President. .................................................... 5 1.4. The Sanction granted by the President is liable to quashed on account of bias. ..... 6 The decision is liable to be set aside if a real likelihood of bias is made out. . 6 The impugned decision is tainted by real likelihood of bias. ........................... 6

1.4.1. 1.4.2. 2.

Proceedings for Impeachment of the President can be Initiated on Grounds of

Corruption .............................................................................................................................. 7 2.1. 2.2. The Present Reference should be Declined by the Honble Court .......................... 7 Arguendo, the Reference should be Answered in the Affirmative. ....................... 10 The literal interpretation of article 61 includes corruption as a violation of

2.2.1.

the constitution............................................................................................................ 10 2.2.2. Constituent Assembly Debates on Article 61 supports corruption being a

ground for impeachment of the President ..................................................................... 17 2.2.3. A purposive interpretation of Article 61 demands that corruption be a ground

for impeachment of the President ................................................................................. 19 PRAYER .................................................................................................................................... 21

MEMORIAL for APPELLANT -ii-

-Index of AuthoritiesINDEX OF AUTHORITIES Cases A. D. M. Jabalpur v. S. S. Shukla, AIR 1976 SC 1207 ............................................................ 16 A. K. Kraipak v. Union of India, AIR 1970 SC 150 .................................................................. 7 A. P. Aggarwal v. Government of NCT of Delhi, AIR 2000 SC 205 ....................................... 16 Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645 .................. 13, 14 Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 .................................................... 7 Ashok Singh v. Assistant Controller of Estate Duty, AIR 1992 SC 1756 ................................ 20 B. L. Wadhera v. Union of India, AIR 1998 Del 436 ................................................................ 4 B.P. Singhal v. Union of India, (2010) 6 SC C33 .................................................................... 17 Baidyanath Mohapatra v. State of Orissa, (1989) 4 SCC 664 .................................................. 7 Balaji Raghavan v. Union of India, AIR 1996 SC 770 ........................................................... 18 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 ................................................ 13 Bharat Petroleum Corporation Ltd. v. Maddula Ratnavali, (2007) 6 SCC 81 ....................... 12 Builders Association of India v. Union of India, AIR 1982 SC 1737 ...................................... 18 C. Ravichandran Iyer v. Justice A. M. Battacharjee, (1995) 5 SCC 457 ................................ 10 Consumer Action Group v. State of Tamil Nadu, AIR 2000 SC 3060..................................... 12

MEMORIAL for APPELLANT -iii-

-Index of AuthoritiesConsumer Education and Research Centre v. Union of India, AIR 1995 SC 922 .................. 13 D. N. Banerjee v. P. R. Mukherjee, AIR 1953 SC 58 .............................................................. 18 D. T. C. v. D. T. C. Mazdoor Congress, AIR 1991 SC 101 ..................................................... 11 Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104..................................... 14 Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 ............................................................ 20 DAV College v. State of Punjab, AIR 1971 SC 1737 .............................................................. 19 Dr. Jaswant Singh v. State of Punjab, 2007 (2) AICLR 59, 64 (P&H) ..................................... 1 E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ....................................................... 11 E. T. Sunup v. C. A. N. S. S. Employees Association, (2004) 8 SCC 683 16 ......................... 10 Fagu Shaw v. State of West Bengal, AIR 1974 SC 613 ........................................................... 18 Francis Coralie v. Union of India, AIR 1981 SC 746 ............................................................. 13 G. C. Kanungo v. State of Orissa, AIR 1995 SC 1655 ............................................................ 16 Gauri Shankar v. Union of India, (1994) 6 SCC 349 .............................................................. 13 General Manager, ONGC, Shilchar v. ONGC Contractual Workers Union, AIR 2008 SCW 3996...................................................................................................................................... 10 Gobardhan Lal v. State of Uttar Pradesh, 2000 (2) AWC 1515 ............................................. 13 H. S. Srinivasa Raghuvachar v. State of Karnataka, AIR 1987 SC 1518 ............................... 15

MEMORIAL for APPELLANT -iv-

-Index of AuthoritiesHH Sripadagalavaru Kesavananda Bharthi v. State of Kerala, AIR 1973 SC 1461 .............. 13 I. R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861........................................................... 15 Indra Sawhney v. Union of India, AIR 1993 SC 477 .............................................................. 16 Ismail Faruqui v. Union of India, AIR 1995 SC 604 ................................................................ 8 John Vallamattom v. Union of India, AIR 2003 SC 2902 ....................................................... 11 K. Veeraswami v. Union of India, (1991) 3 SCC 655 28 ......................................................... 1 Kesavananda Bharthi v. State of Kerala, AIR 1973 SC 1461 ................................................. 10 Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412 .................................................................... 16 Kuldip Nayar v. Union of India, (2006) 7 SCC 1 .................................................................... 10 M Nagaraj v. Union of India, AIR 2007 SC 71 ........................................................... 10, 15, 17 M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, AIR 1999 SC 2468 ...................................... 13 M. K. Sharma v. Bharat Electronics Limited, AIR 1987 SC 1792 .......................................... 13 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 ...................................................... 10 Mohd. Iqbal Ahamed v. State of Andhra Pradesh, 1979 CriLJ 633 .......................................... 6 Mukesh K. Tripathi v. Senior Divisional Manager, AIR 2004 SC 4179 ................................. 20 Municipal Committee Amritsar v. Hazara Singh, AIR 1975 SC 1087 ...................................... 8 Nar Bahadur Bhandari v. Union of India, 1998 CriLJ 3475 ..................................................... 5

MEMORIAL for APPELLANT -v-

-Index of AuthoritiesNarmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 ......................................... 13 National Textile Corporation Ltd. v. Sitaram Mills, AIR 1986 SC 1234 ................................ 15 Olga Tellis v. Bombay Corporation, AIR 1986 SC 180 .......................................................... 12 P. A. Kallimani v. State of Karnataka, 1983 CriLJ (NOC) 160 (Kant) ..................................... 7 P.V. Narasimha Rao v. State (CBI/SPE), AIR 1998 SC 2120............................................... 2, 3 Pathumma v. State of Kerala, AIR 1978 SC 771 .................................................................... 20 Province of Assam v. Mahendra Chandra De, AIR 1949 Assam 3 .......................................... 1 R. C. Poudyal v. Union of India, AIR 1993 SC 1804 .............................................................. 16 R. J. Singh Ahuluwalia v. State of Delhi, AIR 1971 SC 1552 ................................................... 7 R. K. Jain v. Union of India, AIR 1993 SC 1769 ...................................................................... 3 R. L. Arora v. State of Uttar Pradesh, AIR 1964 SC 1230...................................................... 18 Raja Ram Pal v. Honble Speaker, Lok Sabha, (2007) 3 SCC 184 21 .................................. 10 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549....................................................... 4 S. G. Jaisinghani v. Union of India, AIR 1967 SC 1427 ......................................................... 16 S. P. Gupta v. Union of India, AIR 1982 SC 149 .................................................................... 12 S. P. Kapoor v. State of Himachal Pradesh, (1981) 4 SCC 716................................................ 7 S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, AIR 1980 SC 1362 ............................... 17

MEMORIAL for APPELLANT -vi-

-Index of AuthoritiesS.R. Bommai v. Union of India, AIR 1994 SC 1918.................................................................. 3 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 ............................................................ 17 Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297....................................................... 15 State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296 ........................................................... 10 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252........................................................... 14 State of Bihar v. Subhash Singh, AIR 1997 SC 1390 .............................................................. 20 State of Bombay v. Laxmidas Ranchhoddas, AIR 1952 Bom 468........................................... 13 State of Haryana v. State of Punjab, (2002) 2 SCC 507.......................................................... 13 State of Himachal Pradesh v. Umed Ran Sharma, AIR 1986 SC 847 .................................... 13 State of Karnataka v. All India Manufacturers Organisation, AIR 2006 SC 1846 ................ 12 State of Karnataka v. Ranganath, AIR 1978 SC 215 .............................................................. 15 State of Kerala v. K. Karunakaran, 2003 Crl. L. J. 2225 ...................................................... 2, 3 State of Madhya Pradesh v. Pramod Bhartiya, (1993) 1 SCC 539 ......................................... 14 State of Maharashtra v. Basantibai Mohanlal Khetan, AIR 1986 SC 1466 ........................... 15 State of Maharashtra v. Milind, AIR 2001 SC 303 ................................................................. 18 State Of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 .................................... 5 State Of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249 ................................... 5

MEMORIAL for APPELLANT -vii-

-Index of AuthoritiesState of Punjab v. M. L. Puri, AIR 1975 SC 1633 ..................................................................... 7 State of Rajasthan v. Union of India AIR 1965 SC 845 .......................................................... 17 State of Rajasthan v. Union of India, AIR 1977 SC 1361 ....................................................... 16 State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92 ............................................... 20 State v. Charulatha Joshi, (1999) 4 SCC 65............................................................................ 12 State v. Ravinder Singh, 1995 Cri LJ 3428 (Del) ...................................................................... 1 Sub-Committee on Judicial Accountability v. Union of India, AIR 1992 SC 320................... 10 Sub-Divisional Inspector of Post v. Theyyam Joseph, AIR 1996 SC 1271 ............................. 14 Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268 ....... 10 Suryanarayana v. State of Andhra Pradesh, (1967) 2 Andh WR 253 ....................................... 6 T. A. Rajendran v. Governor of Kerala, 1988 CriLJ (Ker) 68 ................................................... 5 T. N. Sheshan, Chief Election Commissioner v. Union of India, (1995) 4 SCC 611............... 18 Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709............................... 15 TMA Pai Foundation v. State of Karnataka, AIR 2003 SC 255.............................................. 19 U. N. Rao v. Indira Gandhi, AIR 1971 SC 1002 ................................................................... 3, 4 Unichem Laboratories Ltd. v. Collector of Central Excise, AIR 2002 SC 3158 .................... 12 Union of India v. Sripati Ranjan, AIR 1975 SC 1755 .............................................................. 4

MEMORIAL for APPELLANT -viii-

-Index of AuthoritiesUnion of India v. Association for Democratic Reforms, (2002) 5 SCC 294 ........................... 12 Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112 .......................... 10 Union of India v. Dinesh Engineering Corporation, AIR 2001 SC 3887 ............................... 16 Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328 ....................................... 20 Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645 .............................................. 13 Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782............................................. 13 Vincent v. Union of India, AIR 1987 SC 990 .......................................................................... 13 Waman Rao v. Union of India, AIR 1981 SC 271 ................................................................... 15 Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR 1958 SC 20 Treatises Austin, Granville, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, New Delhi, 2008 .......................................................................................................... 4 Seervai, H. M., Constitutional Law of India, 4th Ed., Vol. 2, Universal Law Publishing Co., Delhi, 2008 ............................................................................................................. 5, 9, 14, 19

MEMORIAL for APPELLANT -ix-

-Statement of JurisdictionSTATEMENT OF JURISDICTION

THE APPELLANTS HAVE THE HONOUR TO SUBMIT BEFORE THE HONBLE SUPREME COURT
THE MEMORANDUM FOR THE FILED BY

APPELLANTS

IN THE CASE OF

CIVIL APPEAL NO. 244/2022

OF THE

LENIN BUDDI, MARX BUDDI

UNDER

ARTICLE 136

CONSTITUTION

OF OF

INDIA. PRESIDENTIAL REFERENCE 1/2022

WAS MADE BY THE

HONBLE PRESIDENT

INDIA UNDER ARTICLE 143 OF THE CONSTITUTION OF INDIA. THE

PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS IN

THE PRESENT CASE.

MEMORIAL for APPELLANT -x-

-Statement of FactsSTATEMENT OF FACTS The 2020 General Elections forced the Congress to enter into alliances with regional parties in order to pull together enough seats to form a coalition government. Babul Gandhi was sworn in as the Prime Minister while Lenin and Marx Buddi, members of the Karnataka Jana Sangha, took over two key Ministries in the Cabinet. In the Presidential elections in 2021, M.M. Jiri, a fierce rival of the Karnataka Jana Sangha and former Chief Minister of Karnataka, was elected as the President of India. In 2022, the Chief Minister of Karnataka, R.S. Gowda ordered a Special Investigation Team of the Karnataka Police to look into allegations of corruption against the Buddi Brothers. Consequently, sanction for prosecution was sought from the President. The Union Cabinet analysed the police report and other relevant documents and unanimously recommended withholding the sanction. However, the President granted sanction against such recommendation of the Cabinet after consultation with lawyers and constitutional experts. In the meanwhile, the Union Cabinet released a communiqu that the President had accumulated an enormous amount of illegal wealth on the basis of a report submitted by a Special Team of the CBI. Impeachment proceedings were initiated in the Lok Sabha. Writ petitions filed by appellants seeking to quash the sanction accorded by the President were dismissed by the Delhi HC. A reference was made by Shri Jiri under Art. 143 asking the Supreme Court to decide whether proceedings for impeachment of the President under Article 61 of the Constitution could be initiated on grounds of corruption. Upon approaching the Supreme Court under Article 136, the Court granted leave while converting the Special Leave Petition into a Civil Appeal and listed it along with the Presidential Reference.

MEMORIAL for APPELLANT -xi-

-Statement of IssuesSTATEMENT OF ISSUES

The following questions are presented before the Honble Court in the instant matter:

1. Whether The Sanction Granted By The President Is In Violation Of Article 74 Of The Constitution Of India.

2. Whether Proceedings For The Impeachment Of The President Can Be Initiated Under Article 61 Of The Constitution Of India On The Grounds Of Corruption.

MEMORIAL for APPELLANT -xii-

-Summary of ArgumentsSUMMARY OF ARGUMENTS I. The act of the President in granting sanction under the Prevention of Corruption Act is illegal. The Speaker, not the President, is the sanctioning authority under POCA given that the Appellants are Members of the Lok Sabha. Alternatively, the President has contravened Article 74 of the Constitution by granting the sanction in defiance of the ministerial advice. II. Proceedings for Impeachment of the President can be Initiated on Grounds of Corruption Article 61 allows the removal of the President for violation of the Constitution. Corruption violates the Presidential oath under Article 60, the provisions of Articles 14, 19, 21, 38 and 39 as well as principles like Rule of Law and democracy that underlie the Constitution and are parts of the Basic Structure of the Constitution. therefore, corruption is a violation of the Constitution warranting the removal of the President.

MEMORIAL for APPELLANT -xiii-

-Arguments AdvancedARGUMENTS ADVANCED 1. THE ACT OF THE PRESIDENT IN GRANTING SANCTION UNDER THE PREVENTION OF CORRUPTION ACT IS ILLEGAL. It is submitted that the President is not the appropriate authority to grant sanction for the prosecution of Union Ministers under the POCA. Alternatively, the grant of sanction in the present matter is in violation of Article 74 of the Constitution. 1.1. THE PRESIDENT IS NOT THE COMPETENT AUTHORITY UNDER THE PREVENTION OF CORRUPTION ACT, 1988 BROTHERS. It is submitted that the Speaker of the Lok Sabha is the appropriate authority under Section 19, Prevention of Corruption Act, 1988 (POCA) to sanction prosecution. Alternatively, the impugned sanction lacks legal effect unless a similar sanction is granted by the Speaker. 1.1.1. The Speaker Of The Lok Sabha Is The Appropriate Sanctioning Authority. Section 19(1), POCA, mandates the sanction of appropriate authority prior to the initiation of criminal proceedings against public servants.1 The Supreme Court has held that till a provision is made by the Parliament in this regard, either the Chairman of Rajya Sabha or the
1

TO GRANT

SANCTION

FOR THE

PROSECUTION

OF THE

BUDDI

Gokul Chand Dwarkadas Morarka v. King, AIR 1948 PC 82; Monika Marry Hussain v. State of Uttar

Pradesh, 2007 (5) All LJ 219 (All); Ambasa Nagosa Kabadi v. State of Karnataka, (1988) 3 Crimes 304 (Kant); State v. Ravinder Singh, 1995 Cri LJ 3428 (Del); Dr. Jaswant Singh v. State of Punjab, 2007 (2) AICLR 59, 64 (P&H); Md. Quasim Ansari v. State of Bihar, 2005 (1) Pat LJR 526, 529 (Pat); Ajay Kumar Singh v. State of Bihar, 2005 (3) Pat LJR 422, 425 (Pat); Moti Goel v. State of Uttar Pradesh, 2007 (1) All LJ 139; Province of Assam v. Mahendra Chandra De, AIR 1949 Assam 3, 3; Ram Pukar Singh v. State, AIR 1954 All 223; K. Veeraswami v. Union of India, (1991) 3 SCC 655 28

MEMORIAL for APPELLANT -1-

-Arguments AdvancedSpeaker of the Lok Sabha (as the case may be) be the authority under Section 19 of the POCA in respect of Members of Parliament.2 Nothing suggests that the President is the sanctioning authority for Union Ministers. The same does not flow from the text of POCA as a minister cannot be described as being employed in connection with the affairs of the Union and the President is not competent to remove a Minister from his office on his own accord. Every Union Minister is, as per the Constitution, a member of a House of the Parliament.3 In the present case, both Lenin Buddi and Marx Buddi are members of the Lok Sabha.4 Therefore, the appropriate authority, following the applicable precedents5, is the Speaker. Hence the sanction granted by the President is invalid for the want of jurisdiction. 1.1.2. Alternatively, the sanction granted by the President should be considered inoperative without an additional sanction from the Speaker of the Lok Sabha. Assuming while not conceding that the President may grant sanction in his Executive capacity, such sanction will be ineffective without the backing of the Speaker. The Ministers, in their capacities as Members of the Parliament, enjoy protection from prosecution without

P.V. Narasimha Rao v. State (CBI/SPE), AIR 1998 SC 2120; State of Kerala v. K. Karunakaran, 2003 Crl. L.

J. 2225
3

Article 75(5), Constitution of India Factsheet, 1 Supra n. 2

MEMORIAL for APPELLANT -2-

-Arguments Advancedprior sanction of the Speaker. The President cannot strip them of this protection.6 It is hence submitted that even assuming that the President has the power to grant sanction, such sanction should be treated as inoperative unless backed by a sanction from the Speaker. 1.2. ARGUENDO, CONSTITUTION. Assuming that the President is the appropriate sanctioning authority, it is submitted that the grant of sanction, in the present case, is in violation of Article 74 of the Constitution. 1.2.1. The President is Bound By The Advice Of The Council Of Ministers In The Discharge Of All Executive Functions. The President is, under Article 74, bound by Ministerial advice in the discharge of his functions. He is neither required nor empowered to act personally without or against the advice of the Council of Ministers.7 Though the President, like the Crown in United Kingdom,8 formally heads the Executive, the real powers are vested in the Council of
THE

PRESIDENTIAL SANCTION

IS CONTRARY TO

ARTICLE 74

OF THE

P.V. Narasimha Rao v. State (CBI/SPE), AIR 1998 SC 2120; State of Kerala v. K. Karunakaran, 2003 Crl. L.

J. 2225
7

U. N. Rao v. Indira Gandhi, AIR 1971 SC 1002 8-10; Samsher Singh v. State of Punjab, AIR 1974 SC 2192

27, 30, 32; Kehar Singh v. Union of India, AIR 1989 SC 1653; R. K. Jain v. Union of India, AIR 1993 SC 1769
8

Constituent Assembly Debates, Official Reports, Vol. VII, 1989, p. 973; Constituent Assembly Debates,

Official Reports, Vol. IV, 1989, p. 734; S.R. Bommai v. Union of India, AIR 1994 SC 1918

MEMORIAL for APPELLANT -3-

-Arguments AdvancedMinisters.9 If the President ignores the advice of the Council, it would be tantamount to a violation of the Constitution,10 and any decision taken by him is liable to be set aside.11 1.2.2. The President is bound by Ministerial advice in granting sanctions, despite the same being a statutory function. It is submitted that the requirement to follow ministerial advice is not restricted to Constitutional functions alone and extends to statutory functions of the President as well. This is evident from the text of Article 74 which uses the term functions without qualifying it with Constitutional or under the Constitution.12 It has been repeatedly held that executive powers, whether vested in the Central Government or in the President, are to be exercised by the President as per the aid and advice of the Council of Ministers13 and that the satisfaction of the President does not mean his personal satisfaction but the satisfaction of the President in the Constitutional sense, i.e. the satisfaction of the Council of Ministers14. Therefore, it is submitted that statutory origins of the sanctioning power does not negate the requirement for the President to follow Ministerial advice.

Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549; Sanjeevi Naid A. v. State of Madras, AIR 1970 SC

1102
10

Austin, Granville, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, New Delhi,

2008, p. 138
11

U. N. Rao v. Indira Gandhi, AIR 1971 SC 1002 S. R. Bommai v. Union of India, (1994) 3 SCC 1 250 Sanjeevi v. State of Madras, AIR 1970 SC 1102, 1106; B. L. Wadhera v. Union of India, AIR 1998 Del 436 Union of India v. Sripati Ranjan, AIR 1975 SC 1755

12

13

14

MEMORIAL for APPELLANT -4-

-Arguments Advanced1.3. THE DICTUM OF THE COURTS AS REGARDS TO THE POWER OF THE GOVERNOR TO GRANT SANCTION IS INAPPLICABLE TO THE POST OF THE PRESIDENT. The Supreme Court has held that the Governor may exercise discretion in sanctioning the prosecution of ministers.15 However, these decisions are inapplicable to the President. The Governor has greater discretionary powers than the President, as is clear from the texts of Articles 74 and 163. It is submitted that the discretionary powers of the Governor are wider than those of the President, and the omission of the term discretion in the wording of Article 74 is deliberate.16 Moreover, even the Governor, in his discretionary power, is usually bound by the aid and advice of the Council of Ministers in granting sanction.17 The Governor can exercise this discretion only where the Council of Ministers disables or disentitles itself from the decision making process18, by being irrational and basing opinions on irrelevant factors19 or where the State authorises the Governor to grant sanction in his individual capacity.20 Therefore, these decisions cannot be used to hold that the President may use his personal discretion in granting sanctions under POCA.

15

State Of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249; Nar Bahadur Bhandari v. Union of

India, 1998 CriLJ 3475; T. A. Rajendran v. Governor of Kerala, 1988 CriLJ (Ker) 68; Madhya Pradesh Special Police Establishment v. State of Madhya Pradesh, 2003 CriLJ 4610
16

Seervai, H. M., Constitutional Law of India, 4th Ed., Vol. 2, Universal Law Publishing Co., Delhi, 2008, p.

2044
17

Madhya Pradesh Special Police Establishment v. State of Madhya Pradesh, 2003 CriLJ 4610 Ibid Supra n. 17 State Of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249

18

19

20

MEMORIAL for APPELLANT -5-

-Arguments Advanced1.4. THE SANCTION GRANTED BY THE PRESIDENT IS LIABLE TO QUASHED ON ACCOUNT
OF BIAS.

1.4.1. The decision is liable to be set aside if a real likelihood of bias is made out. The authorities under POCA should not be biased on account of political considerations.21 A decision is liable to be set aside if there existed a real possibility of bias.22 The test of bias is whether a reasonably intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. It is submitted that the test is not whether in fact a bias has affected the judgment.23 1.4.2. The impugned decision is tainted by real likelihood of bias. In the present matter, the President is a fierce political rival of the Karnataka Jana Sangha, of which the appellants are members. He stood to gain from the political setback that the prosecution would bring upon the Appellants. Thus, being an interested party in the matter,24 the President should have recused himself from the matter. The same would have been

21

Mohd. Iqbal Ahamed v. State of Andhra Pradesh, 1979 CriLJ 633; Mansukhlal Vithaldas Chauhan v. State of

Gujarat, (1977) 7 SCC 622; Subba Rao v. State of Hyderabad, AIR 1957 AP 414; Suryanarayana v. State of Andhra Pradesh, (1967) 2 Andh WR 253; P. Sriramulu v. State, AIR 1970 AP 114, 116
22

Dhirendra Krishan v. Bharat Heavy Electricals Ltd., 1999 CriLJ 3405 Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School, (1993)

23

IILLJ 549 SC; Kumaon Mandal Vikas Ninag Ltd. v. Girja Shankar Pant, (2000) 1 SCC 182 27, 33 and 35; Dr. G. Sarana v. University of Lucknow, (1976) 3 SCC 585, 591; Manak Lal v. Prem Chand, AIR 1957 SC 425; International Airport Authority v. K. D. Bali, (1988) 2 SCC 360
24

Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454; S. P. Kapoor v. State of Himachal Pradesh,

(1981) 4 SCC 716; Baidyanath Mohapatra v. State of Orissa, (1989) 4 SCC 664; State of Uttar Pradesh v. Mohd. Nooh, AIR 1958 SC 86; A. K. Kraipak v. Union of India, AIR 1970 SC 150

MEMORIAL for APPELLANT -6-

-Arguments Advancedpossible as it has been held that a valid grant of sanction may be performed through a delegate officer and that it is not imperative for the sanctioning authority to review the sanction personally.25 It may be argued that the President was acting on the recommendation of the Special Investigation Team. However, the advice of the prosecuting agency is non-binding.26 In this case the fact that the President disregarded the aid and advice of the Council of Ministers to give effect to the non-binding recommendation of the SIT clearly indicates that personal interests of the President could have been a pivotal factor in the decision making process. Given this very likely possibility that the decision of the President was tainted by bias, it is submitted that the decision is liable to be set aside. 2. PROCEEDINGS
FOR

IMPEACHMENT

OF THE

PRESIDENT

CAN BE

INITIATED

ON

GROUNDS OF CORRUPTION It is submitted that the present reference should be declined by the Court and in the alternative; the reference should be answered in the affirmative since Corruption violates the letter as well as the spirit of the Constitution. 2.1. THE PRESENT REFERENCE SHOULD BE DECLINED BY THE HONBLE COURT

25

State of Punjab v. M. L. Puri, AIR 1975 SC 1633; R. J. Singh Ahuluwalia v. State of Delhi, AIR 1971 SC

1552
26

P. A. Kallimani v. State of Karnataka, 1983 CriLJ (NOC) 160 (Kant); Arun Kumar Shantilal Purohit v. State

of Gujarat, S Cr App No. 1162/2003

MEMORIAL for APPELLANT -7-

-Arguments AdvancedArticle 143 allows the President to seek advice of the Supreme Court on any matter of public importance.27 It is admitted that the President enjoys sole discretion in determining whether a question should be referred to the Court.28 However, it is not mandatory for the Court to render its advice in a reference.29 This is evident from text of Article 143(1) which provides that the Court may, after such hearing as it thinks fit, report to the President its opinion thereon (emphasis supplied).30 That is, if the Court decides that it is unadvisable or impossible to render an opinion, the reference should not be answered.31 The present reference requests the Court to decide whether proceedings for the impeachment of the President can be initiated on ground of corruption.32 Article 61 of the Constitution provides for the impeachment of the President for violation of the Constitution.33 Therefore, what the reference essentially requests the Court to determine is whether corruption amounts to a violation of the Constitution under Article 61.

27

Article 143 (1), Constitution of India Article 143 (1), Constitution of India; In Re the Kerala Education Bill, AIR 1958 SC 956; In Re Keshav

28

Singhs case, AIR 1965 SC 745; In Re the Special Courts Bill, 1978, AIR 1979 SC 478
29

In Re the Kerala Education Bill, AIR 1958 SC 956; In Re the matter of Ram Janmabhoomi, (1993) 1 SCC 642 In Re Keshav Singhs case, AIR 1965 SC 745; In Re the Kerala Education Bill, AIR 1958 SC 956; In Re the

30

Special Courts Bill, 1978, AIR 1979 SC 478; Ismail Faruqui v. Union of India, AIR 1995 SC 604; Moti Ram v. North Eastern Frontier Railway, AIR 1964 SC 600
31

In Re the Special Courts Bill, 1978, AIR 1979 SC 478; Ismail Faruqui v. Union of India, AIR 1995 SC 604;

Municipal Committee Amritsar v. Hazara Singh, AIR 1975 SC 1087; Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195; In Re Cauvery Water Disputes Tribunal, AIR 1992 SC 522
32

Factsheet, 5 Article 61, Constitution of India

33

MEMORIAL for APPELLANT -8-

-Arguments AdvancedIt is submitted that the phrase violation of the Constitution of wide import.34 Unlike the American Constitution which provides specific instances of violation of the Constitution35, Article 61 employs this broad phrase without defining it or restricting its scope through examples. Considering this deliberate departure from the American Constitution, it is submitted that the framers of the Constitution intended to keep the phrase wide for later interpretation by the Parliament.36 Moreover, the elaborate procedure laid down in Article 61 and the extent of majority required by it in the Parliament are sufficient checks and balances upon the said power of the Parliament. This delicate balance envisaged by the Constitution makes the Parliament the sole judge of what amounts to a violation of the Constitution.37 Given this, it is respectfully submitted that it will be undesirable for the Honble Court to decide whether a particular matter amounts to a violation of the Constitution for the purpose of Article 61, as this will run contrary to the Constitutional scheme of separation of powers.38
34

Constituent Assembly Debates, Official Reports, Vol. VII, 1989, pp. 1081-1082 4, Article II, Constitution of the United States of America Maneka Gandhi v. Union of India, AIR 1978 SC 597 Article 61, Constitution of India; Seervai, H. M., Constitutional Law of India, 4th Ed., Vol. 2, Universal

35

36

37

Law Publishing Co., Delhi, 2008, p. 2025

38

Article 50, Constitution of India; C. Ravichandran Iyer v. Justice A. M. Battacharjee, (1995) 5 SCC 457 10;

High Court of Judicature at Bombay v. Shirish Kumar Rangarao Patil, (1997) 6 SCC 339; Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542; State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296; Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549; In Re Delhi Laws Act, AIR 1951 SC 332; M Nagaraj v. Union of India, AIR 2007 SC 71; Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987; Union of India v. Sankalchand H. Sheth, AIR 1977 SC 2328; Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268; see generally P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 22, 25 and 27; E. T. Sunup v. C. A. N. S. S. Employees Association, (2004) 8 SCC 683 16

MEMORIAL for APPELLANT -9-

-Arguments Advanced2.2. ARGUENDO, THE REFERENCE SHOULD BE ANSWERED IN THE AFFIRMATIVE. It is submitted that if the Court is disposed to render its advice in the present matter, the reference should be answered to the effect that corruption is a ground for initiation of proceedings under Article 61 2.2.1. The literal interpretation of article 61 includes corruption as a violation of the constitution The Constitution is the supreme law of the land and is to be honoured in its letter and spirit.39 A violation of the Constitution, literally refers to the contravention of an enumerated provision of the Constitution or greater principles embodied by the Constitution provisions. It is submitted that corruption by the President would violate both the letter and spirit of the Constitution of India and hence constitutes a ground for impeachment. In particular, corruption contravenes the oath entailed in Art. 60, Fundamental Rights under Articles 14, 19 and 21, Directive Principles of State Policy entailed in Article 38 and 39 as well as principles of democracy and Rule of Law which have been held to be parts of the Basic Structure of the Constitution. 2.2.1.1. Corruption violates the Presidential oath prescribed under Art. 60 of the Constitution
39

Raja Ram Pal v. Honble Speaker, Lok Sabha, (2007) 3 SCC 184 21; Kesavananda Bharthi v. State of

Kerala, AIR 1973 SC 1461; Indira Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789; Sub-Committee on Judicial Accountability v. Union of India, AIR 1992 SC 320; Manilal Singh v. Dr. Borobabu Singh, AIR 1994 SC 502; Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112; Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2363; Pratap Singh v. State of Jharkhand, AIR 2005 SC 2731; Rameshwar Prasad (VI) v. Union of India, AIR 2006 SC 980; Kuldip Nayar v. Union of India, (2006) 7 SCC 1; General Manager, ONGC, Shilchar v. ONGC Contractual Workers Union, AIR 2008 SCW 3996

MEMORIAL for APPELLANT -10-

-Arguments AdvancedArticle 60 of the Constitution of India requires the President to take an oath in the prescribed format. Under the said oath, a person, while assuming Presidency, swears to preserve, protect and defend the Constitution and the law. Therefore, corruption by the President is a direct contravention of this oath by which the Constitution binds the President. 2.2.1.2. Corruption violates Fundamental Rights entailed under Article 14, 19 and Article 21 It is submitted that corruption is a contravention of Articles 14, 19 and 21. 2.2.1.2.1. Corruption violates Article 14 of the Constitution Article 14 which envisages the Right to equality has been accorded an expansive reading to include a prohibition against arbitrariness.40 An official act qualifies as arbitrary inter alia if it is induced by extraneous reasons.41 When an official act is tainted by corruption, the action is induced by the desire for personal gratification and not by considerations relevant in the context of the action. Therefore, corruption introduces arbitrariness, the antithesis of equality,

40

M. Chhaganlal v. Greater Bombay Municipality, AIR 1974 SC 2009; E. P. Royappa v. State of Tamil Nadu,

AIR 1974 SC 555; Maneka Gandhi v. Union of India, AIR 1978 SC 597; Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628; D. T. C. v. D. T. C. Mazdoor Congress, AIR 1991 SC 101; John Vallamattom v. Union of India, AIR 2003 SC 2902; Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, AIR 1980 SC 1992
41

Neelima Misra v. Harinder Kaur Paintal And Others, AIR 1990 SC 1402; Ramana Dayaram Shetty v.

International Airport Authority of India, 1979 AIR SC 1628; L. I. C. of India v. Consumer Education and Reseacrh Centre, AIR 1995 SC 1811; Consumer Action Group v. State of Tamil Nadu, AIR 2000 SC 3060; Unichem Laboratories Ltd. v. Collector of Central Excise, AIR 2002 SC 3158; Padma v. Hiralal Motilal Desarda, AIR 2002 SC 3252; Bharat Petroleum Corporation Ltd. v. Maddula Ratnavali, (2007) 6 SCC 81; Noble Resources Ltd. v. State of Orissa, AIR 2007 SC 119; State of Karnataka v. All India Manufacturers Organisation, AIR 2006 SC 1846

MEMORIAL for APPELLANT -11-

-Arguments Advancedinto the decision making process. Therefore, corruption has to be seen as a violation of Article 14 of the Constitution. 2.2.1.2.2. Corruption violates Article 19 of the Constitution It has been held that Article 19 impliedly entails right to know. 42 Corruption necessarily involves concealment of matters of public interest or misinforming the public about true reasons behind an official act. Thus, corruption is a violation of right to know. 2.2.1.2.3. Corruption violates Article 21 of the Constitution Article 21 guarantees to an individual all rights necessary for dignified human life43, not mere animal existence.44 Under this Article, right to water45, right to shelter46, right to education47
42

S. P. Gupta v. Union of India, AIR 1982 SC 149; Sheela Barse v. State of Maharashtra, (1987) 4 SCC 373;

Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161; Dinesh Trivedi v. Union of India, (1997) 4 SCC 306; State v. Charulatha Joshi, (1999) 4 SCC 65; Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294; PUCL v. Union of India, (2003) 4 SCC 399; PUCL v. Union of India, (2004) 2 SCC 476
43

Maneka Gandhi v. Union of India, AIR 1978 SC 597; Reliance Energy Ltd. v. Maharashtra State Road

Development Corporation Ltd., (2007) 8 SCC 1; Olga Tellis v. Bombay Corporation, AIR 1986 SC 180; D. T. C. v. Mazdoor Congress Union D. T. C., AIR 1991 SC 101 223, 234, 259; Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42
44

Francis Coralie v. Union of India, AIR 1981 SC 746; Bandhua Mukti Morcha v. Union of India, AIR 1984

SC 802; M. C. Mehta v. Union of India, AIR 1987 SC 1086; M. K. Sharma v. Bharat Electronics Limited, AIR 1987 SC 1792; Vincent v. Union of India, AIR 1987 SC 990; Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782
45

Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664; Andhra Pradesh Pollution Control Board II

v. M. V. Nayadu, (2001) 2 SCC 62

46

Shanthistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630; Gauri Shankar v. Union of India,

(1994) 6 SCC 349; Shiv Sagar Tiwari v. Union of India, (1997) 1 SCC 444
47

Article 21-A, Constitution of India; Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645

MEMORIAL for APPELLANT -12-

-Arguments Advancedand several other rights have been read in enjoining the State to act as a welfare State. 48 These functions of the State are often prejudiced by corruption. For the numerous rights read into Article 21 to have any meaning, good governance should be ensured. Thus, good governance becomes an essential to guarantee dignified human life. Hence a right to good governance should be read into Article 21.49 Thus, corruption violates the right to good governance, an essential condition for meaningful enjoyment of all other rights related to dignified human life. Thus, corruption is a violation of the Constitution. 2.2.1.3. Corruption violates Directive Principles under Articles 38 and 39 of the Constitution Directive Principles of State Policy have been said to be the core and the conscience of the Constitution50 Despite being not enforceable before a Court of law,51 they are still

48

Article 38, Constitution of India; HH Sripadagalavaru Kesavananda Bharthi v. State of Kerala, AIR 1973 SC

1461; State of Himachal Pradesh v. Umed Ran Sharma, AIR 1986 SC 847; Sri Srinavasa Theatre v. Government of Tamil Nadu, AIR 1992 SC 999; Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922; Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645
49

Gobardhan Lal v. State of Uttar Pradesh, 2000 (2) AWC 1515; State of Haryana v. State of Punjab, (2002) 2

SCC 507; BALCO Employees Union v. Union of India, AIR 2002 SC 350; M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, AIR 1999 SC 2468; State of Bombay v. Laxmidas Ranchhoddas, AIR 1952 Bom 468
50

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; Minerva Mills v. Union of India, AIR 1980 SC

1789; State of Madhya Pradesh v. Pramod Bhartiya, (1993) 1 SCC 539; Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178; Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104
51

Article 37, Constitution of India; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461;

Ashwathanarayan Setty, P. M. v. State of Karnataka, AIR 1989 SC 100; Lily Thomas v. Union of India, AIR 2000 SC 1650

MEMORIAL for APPELLANT -13-

-Arguments AdvancedConstitutional provisions capable of being violated and it is for the Houses of the Parliament to decide if a violation of these Principles should be regarded as a ground for impeachment. 52 It is submitted that corruption violates Articles 38 and 39 of the Constitution. 2.2.1.3.1. Corruption violates Article 38 Article 38(1) enjoins the State to promote the welfare of the people and requires that justice, social, economic and political, shall inform all the institutions of the national life.53 Corruption is inherently against the concept of justice. Thus, corruption by the President would be a gross contravention of Article 38(1) and hence a violation of the Constitution. 2.2.1.3.2. Corruption violates Article 39 Article 39(b) requires the State to ensure that that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good. 54 Article 39(c) requires the State to ensure that the operation of the economic system does not

52

Article 61, Constitution of India; Seervai, H. M., Constitutional Law of India, 4th Ed., Vol. 2, Universal

Law Publishing Co., Delhi, 2008, p. 2025

53

State of Bihar v. Kameshwar Singh, AIR 1952 SC 252; Minerva Mills Ltd. v. Union of India, AIR 1980 SC

1789; Kasturi Lal v. State of Jammu and Kashmir, AIR 1980 SC 1992; Sub-Divisional Inspector of Post v. Theyyam Joseph, AIR 1996 SC 1271; Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645
54

Waman Rao v. Union of India, AIR 1981 SC 271; State of Karnataka v. Ranganath, AIR 1978 SC 215; H. S.

Srinivasa Raghuvachar v. State of Karnataka, AIR 1987 SC 1518; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709; Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297; State of West Bengal v. K. C. Kapur, AIR 1997 SC 1348

MEMORIAL for APPELLANT -14-

-Arguments Advancedresult in the concentration of wealth and means of production to the common detriment. 55 Corruption involves dishonest amassing of economic resources by individuals to the detriment of the community at large. Thus, it is against the Directive Principles laid down in Article 39 and hence a violation of the Constitution for which the President may be impeached under Article 31. 2.2.1.4. Corruption violates ideals that form parts of the Basic Structure of the Constitution The Honble Supreme Court has identified certain Constitutional provisions and ideals as constituting the Basic Structure of the Constitution.56 The constituents of the Basic Structure are to be identified from the text of the Constitution.57 These ideals are considered sacrosanct and cannot be encroached upon even by the Parliament in exercise of its Constituent power. 58 Thus, all Constitutional functionaries are bound to honour these ideals and are not to transgress them.

55

Assistant Commissioner v. Bennett and Coleman Co., AIR 1970 SC 169; Sonia Bhatia v. State of Uttar

Pradesh, AIR 1982 SC 1274; State of Maharashtra v. Basantibai Mohanlal Khetan, AIR 1986 SC 1466; National Textile Corporation Ltd. v. Sitaram Mills, AIR 1986 SC 1234
56

Kesavananda Bharati v. Union of India, AIR 1973 SC 1461 Indira Gandhi v. Raj Narain, AIR 1975 SC 2299 Minerva Mills v. Union of India, AIR 1980 SC 1789; Sambhamurthy P. v. State of Andhra Pradesh, AIR 1987

57

58

SC 663; M Nagaraj v. Union of India, AIR 2007 SC 71; I. R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861

MEMORIAL for APPELLANT -15-

-Arguments AdvancedAmong other things, it has been held that the Basic Structure includes democracy59 and rule of law60. It is submitted that corruption contravenes the principles of democracy and the rule of law. 2.2.1.4.1. Corruption violates the Rule of Law The concept of Rule of Law is invoked often to convey the sense that the administration cannot exercise arbitrary powers and that it should function according to law. 61 It is implied in the principles of equality and has been described by the Supreme Court as the antithesis of arbitrariness in various instances.62 Corruption involves the conferring of benefits as a result of extraneous consideration. Furthermore, it is a crime under the Prevention of Corruption Act.63 Corruption therefore results not only in the arbitrary functioning of the administration as a consequence of
59

R. C. Poudyal v. Union of India, AIR 1993 SC 1804; Kesavananda Bharati v. Union of India, AIR 1973 SC

1461; State of Rajasthan v. Union of India, AIR 1977 SC 1361; Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412; Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112; Kuldip Nayar v. Union of India, (2006) 7 SCC 1
60

Indira Gandhi v. Raj Narain, AIR 1975 SC 2299; Indra Sawhney v. Union of India, AIR 1993 SC 477; G. C.

Kanungo v. State of Orissa, AIR 1995 SC 1655; High Court of Judicature at Bombay v. Shirish Kumar Rangarao Patil, (1997) 6 SCC 339; Union of India v. K. M. Shankarappa, (2001) 1 SCC 582; Secretary, State of Karnataka v. Umadevi (3), AIR 2006 SC 1806; I. R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861
61

A. K. Kraipak v. Union of India, (1969) 2 SCC 262; S. G. Jaisinghani v. Union of India, AIR 1967 SC 1427;

Style (Dress Land) v. Union Territory, Chandigarh, (1999) 7 SCC 89 12; A. P. Aggarwal v. Government of NCT of Delhi, AIR 2000 SC 205
62

A. D. M. Jabalpur v. S. S. Shukla, AIR 1976 SC 1207 220; IR Coelho v. State of TN (2007) 2 SCC 1 68;

Lakshmi Precision Screws Ltd. v. Ram Bhagat, AIR 2002 SC 2914; Union of India v. Dinesh Engineering Corporation, AIR 2001 SC 3887
63

7, 8, 10, 11 and 13, Prevention of Corruption Act, 1988

MEMORIAL for APPELLANT -16-

-Arguments Advancedextraneous consideration, but also results in the administration functioning contrary to law. Corruption, therefore, contravenes the principle of rule of law and is therefore a violation of the Constitution. 2.2.1.4.2. Corruption violates democracy The Republic of India is a democracy governed by the rule of law. A democracy, the cornerstone of which is the guarantee of fundamental rights,64 is a system of governance where political parties contest elections with a declared agenda.65 It is submitted that corruption is an open mockery to a democratic form of government. Being explicitly in violation of the principle of equality, corruption violates the very essence of democracy.66 Furthermore, corruption results in the arbitrary functioning of the government due to the unlawful grant of benefits for an extraneous consideration, thereby violating the very tenets of the basic structure. Corruption hence violates the tenets of democracy and constitutes therefore a violation of the Constitution. 2.2.2. Constituent Assembly Debates on Article 61 supports corruption being a ground for impeachment of the President

64

State of Rajasthan v. Union of India AIR 1965 SC 845; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845;

S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, AIR 1980 SC 1362

65

B.P. Singhal v. Union of India, (2010) 6 SC C33 8; Kanhiya Lal v. Trivedi, AIR 1986 SC 111 10; S. R.

Chaudhuri v. State of Punjab, AIR 2001 SC 2707; Kuldip Nayar v. Union of India, AIR 2006 SC 3127
66

M Nagaraj v. Union of India, AIR 2007 SC 71 27

MEMORIAL for APPELLANT -17-

-Arguments AdvancedIt is submitted that where the text of a Constitutional provision is ambiguous, the legislative history of the provision may be legitimately relied upon as an aid to interpretation.67 It is further submitted that the Constituent Assembly Debates on Article 61 clearly demonstrates the intention of the framers of the Constitution that corruption should be within the ambit of the expression violation of the Constitution in Article 61. 2.2.2.1. The Court may rely upon Constituent Assembly Debates as an aid to interpretation The recent practice of the Supreme Court has witnessed extensive references to speeches in the Constituent Assembly to aid in the interpretation of provisions in the Constitution whenever any ambiguity vis--vis the meaning of a phrase or word arises.68 Constituent Assembly debates, being illuminating and helpful,69 are now a settled means for the interpretation of Constitutional provisions.70

67

Hariprasad Shivshankar Shukla v. A. D. Divelkar, AIR 1957 SC 121; R. L. Arora v. State of Uttar Pradesh,

AIR 1964 SC 1230; Sanghvi Jeevraj v. Secretary, Madras Chillies, Grains and Kirana Merchants Workers Union, AIR 1969 SC 530; D. N. Banerjee v. P. R. Mukherjee, AIR 1953 SC 58
68

Indira Sawhney v. Union of India, AIR 1993 SC 477; A. V. S. Narasimha Rao v. State of Andhra Pradesh,

AIR 1970 SC 422; Ajit Singh v. State of Punjab, AIR 1999 SC 3471; Union of India v. Harbhajan Singh Dhillon, AIR 1972 SC 1061; Fagu Shaw v. State of West Bengal, AIR 1974 SC 613; Builders Association of India v. Union of India, AIR 1982 SC 1737; Sub-Committee of Judicial Accountability v. Union of India, AIR 1992 SC 320; Marri Chandra Shekhar Rao v. Dean Seth G. S. Medical College, (1990) 3 SCC 13; T. N. Sheshan, Chief Election Commissioner v. Union of India, (1995) 4 SCC 611; Balaji Raghavan v. Union of India, AIR 1996 SC 770; State of Maharashtra v. Milind, AIR 2001 SC 303
69

Aruna Roy v. Union of India, AIR 2002 SC 3176; DAV College v. State of Punjab, AIR 1971 SC 1737;

Santhosh Kumar v. Secretary, Ministry of Human Resources, (1994) 6 SCC 599; P. M. Bhargava v. University Grants Commission, AIR 2004 SC 3478
70

S. R. Chaudhury v. State of Punjab, AIR 2001 SC 2707; Special Reference No. 1 of 2002, AIR 2003 SC 87;

TMA Pai Foundation v. State of Karnataka, AIR 2003 SC 255, Kihoto Hollohon v. Zachilhu, AIR 1993 SC 412

MEMORIAL for APPELLANT -18-

-Arguments AdvancedIt is therefore humbly submitted that Constituent Assembly debates, as evidenced by the practice of the Court, are admissible to aid in the interpretation of provisions of the Constitution. 2.2.2.2. The Constituent Assembly Debates on Article 61 suggest that corruption is a violation of the Constitution While it was suggested that, like the American Constitution, specific grounds be laid down such as treason, bribery and other high crimes and misdemeanours in addition to violation of the constitution, it was decided that the wide import of the term violation of the Constitution was such so as to encompass the above situations.71 The term violation of the Constitution was consciously provided with a wide ambit so as to accommodate various situations. The extent of those situations, however, was to be determined by the Parliament in its wisdom on a case-by-case basis.72 It is therefore humbly submitted that the amplitude of the term violation of the Constitution is sufficiently comprehensive so as to include corruption within its scope. 2.2.3. A purposive interpretation of Article 61 demands that corruption be a ground for impeachment of the President

71

Constituent Assembly Debates, Official Reports, Vol. VII, 1989, pp. 1081-1082 Article 61, Constitution of India; Seervai, H. M., Constitutional Law of India, 4th Ed., Vol. 2, Universal

72

Law Publishing Co., Delhi, 2008, p. 2025

MEMORIAL for APPELLANT -19-

-Arguments AdvancedIt is submitted that even from a purposive angle of interpretation73, Article 61 should be read so as to include corruption as a ground for impeachment of the President. The Constitution contains an intricately woven system of checks and balances so that no Constitutional functionary may consider itself above the law of the land. 74 The President, given his high office is granted wide immunities and privileges. Article 61 appears to be the only check and balance upon the President. It is the only provision in the Constitution that deters the President from contravening the law of the land. The procedure entailed in Article 61 is elaborate and demanding, affording sufficient protection to the President. However, it is will be absurd to read this only check on the powers of the President, to hold that no entity can check or sanction the President if he engages in a criminal activity. Therefore, the Constitution should be interpreted so as to avoid this absurdity and to sub serve the purpose of the provision. Hence, it is submitted that the expression violation of the Constitution in Article 61 should be interpreted to include corruption.

73

Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR 1958 SC 353; State of

Uttar Pradesh v. C. Tobit, AIR 1958 SC 414; Santasingh v. State of Punjab, AIR 1976 SC 2386; Ashok Singh v. Assistant Controller of Estate Duty, AIR 1992 SC 1756; Mukesh K. Tripathi v. Senior Divisional Manager, AIR 2004 SC 4179
74

Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328; State of West Bengal v. Subodh Gopal

Bose, AIR 1954 SC 92; Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328; Pathumma v. State of Kerala, AIR 1978 SC 771; State of Bihar v. Subhash Singh, AIR 1997 SC 1390; Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457; Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2363

MEMORIAL for APPELLANT -20-

-Prayer PRAYER

In the light of the arguments advanced and authorities cited, the Appellants humbly submit that the Honble Court be pleased to adjudge and declare that:

1. The Presidents grant of sanction runs contrary to Article 74 of the Constitution of India.

2. Proceedings for the impeachment of the President can be initiated under Article 61 of the Constitution of India on grounds of corruption.

3. Any other order it deems fit in the interests of justice, equity and good conscience.

For this act of kindness, the Appellants shall duty bound forever pray.

Sd./(Counsels for the Appellants)

MEMORIAL for APPELLANT -21-