Fifth

Fifth ASCENT
FifthASCENT Moot
ASCENTMoot Court
MootCourt Competition,
CourtCompetition, 2016
Competition,2016
2015
P a gPea|g1e | 1

Team Code: AMCN-104

IN THE SUPREME COURT OF NADARAT

CIVIL JURISDICTION

SPECIAL LEAVE PETITION NO. (CIVIL PIL) ________ of 2016

(UNDER ARTICLE 136 OF THE CONSTITUTION OF NADARAT)

In the Matter of:

Mr. XYZ, President, Digress Legislative Party .......................Petitioner
Vs.
Union of Nadarat ………..........Respondent

ALONG WITH SUIT NO. ___________ of 2016

(UNDER ARTICLE 131 OF THE CONSTIUTION OF NADARAT)

In the Matter of:

Mr. Sukhia Balm, Chief Minister of Nathuakan

(Leader of the Nathuakan Digress Legislative Party) ………………...Plaintiff

Vs.
Union of Nadarat ………..........Respondent

TO

THE HON’BLE CHIEF JUSTICE OF NADARAT AND HIS COMPANION

JUDGES OF THE SUPREME COURT OF NADARAT

MOST RESPECTFULLY SUBMITTED

BY COUNSEL FOR THE RESPONDENTS

Written
WrittenSubmissions
Submissionsononbehalf
behalfofofthe
theRespondents
Respondents

Written Submissions on behalf of the Petitioners

 Fifth ASCENT Moot Court Competition, 2016
Page |1

Table of Contents

List of Abbreviations……………..………………………………………………2

Index of Authorities……………………………………………………………....3

Statement of Jurisdiction………………………………………………………….5

Statement of Facts ………………………………………………………………..6

Statement of Issues………………………………………………………………..9

Summary of Arguments…………………………………………………………..10

Arguments Advanced…………………………………………………………….13

Prayer……………………………………………………………………………..15

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |2

List of Abbreviations

1. AIR……………………………………………………………..………………….All India Report

2. DP…………………………………………………………………………………….Digress Party
3. MLA……………………………………………………………..Member of Legislative Assembly
4. SC….………………………………………………………………………….…….Supreme Court
5. SCC…...……………………………………………………………………...Supreme Court Cases
6. SCR………………………………………………………………………...Supreme Court Reports
7. SLP……………………………………………………………………..........Special Leave Petition
8. SP…………………………………………………………………………………....Suppress Party
9. u/s.. ……………………………………………………….……………………...…..Under Section
10. UOI………………………………………………………..….……………………...Union of India

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |3

Index of Authorities

CASES1

1. State of Rajasthan v UOI (1977) 3 SCC 592

2. S.R. Bommai v UOI 1994 3 SCC 1
3. Rameshwar Prasad (VI) v UOI (2006) 2 SCC 1
4. Birender Singh Rao v UOI AIR 1968 P. & H. 441
5. His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala and Anr. AIR 1973
SC 1461
6. State of Seraikella v UOI AIR 1951 SC 253
7. State of Karnataka v Union of India AIR 1978 SC 68
8. L. Chandra Kumar v UOI 1997 3 SCC 261
9. I.R. Coelho v State of Tamil Nadu 2007 2 SCC 1
10. State of Rajasthan v UOI 1977 3 SCC 592; S.R. Bommai v UOI 1994 3 SCC 1
11.
BOOKS

1. Basu, D. (2011). Shorter Constitution of India (14th Edition ed., Vol. 1, pp. 77-413). New
Delhi: Butterworths Wadhwa, Nagpur.
2. Basu, D. (2011). Shorter Constitution of India (14th Edition ed., Vol. 2, pp. 1286-1289).
New Delhi: Butterworths Wadhwa, Nagpur.
3. Jain, M.P., Pal, R., Pal, S. (2010), M.P. Jain Indian Constitutional Law: With
Constitutional Documents,( 6th edition ed., Volume 1), New Delhi: LexisNexis
Butterworths Wadhwa Nagpur
4. Singh, G.P., Principles of Statutory Interpretation”, (10th Edition, pp. 619-623),New
Delhi: Wadhwa & Co. Nagpur

LINKS

1. www.manupatra.com
2. www.scconline.com
3. www.judis.nic.in

1
NOTE: Due to paucity of time, Manupatra.com was utilized for retrieving the cases, however, AIR, SCC and SCR
will be utilized and there will be a little variation in the paragraphs. PLEASE NOTE.

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |4

STATUTES

1. The Constitution Of Nadarat, 1950

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |5

Statement of Jurisdiction

1. There is no maintainability of the petition and the suit against the proclamation

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |6

Statement of Facts

Summary of Facts
1. Nathuakhan is a province in the Union of Nadarat. Since the assembly elections of March
2015 it was ruled by the Digress party which had secured a 47 seat majority in the 60
member house. The rest, 11 and 2, were bagged by the Suppress party and independents
respectively.
2. 14 MLAs of the 47 member strong Digress Party who were unhappy with the Chief
Minister’s style of functioning, wrote to governor apprising of their switch of allegiance
and consequent withdrawal of support to Chief Minister Sukhia Balm’s government.
Thus, dissenting against Chief Minister Sukhia Balm.
3. The Speaker, himself a Digress party legislator, in a meeting convened on November,
2016, promptly, and not surprisingly so, disqualified these 14 MLAs of the Digress Party
and one happened to be the Deputy Speaker of the House.
4. Members aggrieved by the one-sided disqualification decision of the Speaker, continued
to attend the assembly session.
5. Their evictions led to ugly scenes outside the assembly precincts, with the Speaker
calling off the session and ordering the precincts locked up and cordoned-off till further
notice.
6. Aggrieved by the Speaker biased decisions, the 14 disqualified MLA’s along with the 11
Suppress party MLAs sought the Governor’s intervention and asked for a floor-test. The
Governor gauged the situation and summoned the House for 16 December, with the
directive that its composition shall remain unchanged – thereby nullifying the
disqualification of the 14 defectors.
7. The Chief Minister declined to attend the meeting and ask governor to not go ahead with
the session. But the Governor insisted on proceeding in order to reduce political chaos.
8. The Chief Minister and speaker of the Assembly along with the other Digress Party
members did not attend the session and abstained from the meeting of the house.

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |7

9. In the meanwhile, the Suppress Party in the Centre, constitutionally amended the Article
356 clause 5 of the Constitution with the following clause 5:

“Notwithstanding anything in this Constitution, the satisfaction of the President

mentioned in clause (1) shall be final and conclusive and shall not be questioned in any
court on any ground.”

10. A meeting of the assembly on 16th December was held as per the Governor’s order at
Hotel “Dirty Linen”. It was attended by 14 members of Digress Party (Members who
were disqualified) along with them 11 members of Suppress Party and the 2 independent
Members. However, none of the remaining Digress party MLAs attended it.
11.The Deputy Speaker presided over the meeting, Resolutions were passed removing the
Speaker by a unanimous vote, as well as regards formation of an alternative government.
12.The Chief Minister moved the High Court of Nathuakhan on the 17th of December for
holding the December 16th meeting non-est.
13.The High Court, after hearing ruled that all the “disputed decisions” be put in abeyance.
14.On the 18th of December, with the High Court ruling as stated, the Governor sent along a
report announcing the prevalence of political chaos in the state to the President of
Nadarat.
15.The President, on the 19th of December, proclaimed emergency under Article 356 (1) of
the Constitution of Nadarat.
16.The Digress party challenged the proclamation under Article 226 in the High Court of
Nathuakhan. This petition was dismissed.
17.The Digress party, under Article 136 files a Special Leave Petition. Also, Sukhia Balm,
the ousted Chief Minister, files a suit under Article 131 of the Constitution to impugn the
Proclamation before the Hon’ble Supreme Court of Nadarat.

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |8

Statement of Issues

1. MAINTAINABILITY
1.1 Whether the petitions are maintainable despite the bar under
Article 356 (5) of the Constitution?
1.2 Whether the Suit under Article 131 by the Ousted Chief Minister
is maintainable?

2. VALIDITY OF PROCLAMATION
2.1 Whether there was a situation where the Government of the State
could not be carried on in accordance with the provisions of this
Constitution?
2.2 Whether there was a satisfaction of the President under Article
356?
2.3 Whether the factual position indicated in the Governor’s report is
open to judicial review?

3. Whether the Constitutional Amendment to Article 356 (5) is

valid and the Parliament has power to amend under Article
368?

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
Page |9

Summary of Arguments

1. MAINTAINABILITY OF THE PETITIONS

1.1 Whether the Special Leave Petition under Article 136 is
maintainable?
It is humbly submitted that the Special Leave Petition under Article 136 of the
Constitution is not maintainable and should be dismissed. The Honourable High
Court of Nathuakan was correct in dismissing the petition as it was a political
issue and Courts do not intervene in the Legislative Assembly functioning.
Further, the recent Constitutional Amendment under Article 356 (5) bars this
Honourable Court’s jurisdiction.
1.2 Whether the Suit under Article 131 by the Ousted Chief Minister
is maintainable?
It is humbly submitted that the suit filed under Article 131 of the Constitution by
the ousted Chief Minister, Sh. Sukhia Balm is not maintainable as he has no cause
of action. The plaintiff is not a state2 and also not competent to file a suit as he
lacks a locus and is not a State within the meaning of Article 131, for he has been
ousted from his office after the proclamation of emergency and the State’s
interests are now represented by the Governor. Needless to say, the presence of
recent amendment of Article 356 (5) of the Constitution also bars the Court’s
jurisdiction from inquiring into the validity of the Proclamation in the first place.

2. VALIDITY OF PROCLAMATION
2.1 Whether there was a situation where the Government of the
State could not be carried on in accordance with the provisions of
this Constitution?

2 th
See Basu, Commentary on Constitution of India, 8 Ed. Vol. 5, pp 5640-5641; State of Bihar v UOI AIR 1970 SC
1446 at 1452 (CB)

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
P a g e | 10

It is humbly submitted that a situation arose in the State of Nathuakan where the
Government of the State could not be carried on in accordance with the
provisions of this Constitution as the speaker locked the assembly and the
session was called at a Hotel. There was a total failure of Constitutional
machinery. The Chief Minister and Council of Ministers were not at all co-
operating in running the Government constitutionally. Hence, the Proclamation
was proper.
2.2 Whether there was a subjective satisfaction of the President
under Article 356?
Yes, it is humbly submitted that there was a subjective satisfaction of the
President under Article 356 due to the prevalent situation of political chaos in the
State of Nathuakan as the Government of the State could not be carried on in
accordance with the provisions of this Constitution. The facts like locking up of
the assembly and calling the session at a Hotel were verified by the Union
Cabinet.
2.3 Whether the factual position indicated in the Governor’s report
is open to judicial review?
It is humbly submitted that the factual position indicated in the Governor’s report
is not open to Judicial review by the courts.3

3. Whether the Constitutional Amendment to Article 356 (5) is valid and

the Parliament has power to amend under Article 368?
Yes, the Parliament has power to change the Constitution under Article 368
and the amendment is valid until it is struck down by this Honourable Court.
Till then, this Constitutional amendment of Article 356 (5) is valid and
operative in the present case.

3
State of Rajasthan v UOI 1977 3 SCC 592; S.R. Bommai v UOI 1994 3 SCC 1

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
P a g e | 11

Arguments Advanced

1. MAINTAINABILITY OF THE PETITIONS

1.1 Whether the Special Leave Petition under Article 136 is
maintainable?
It is humbly submitted that the Special Leave Petition under Article 136 of the
Constitution is not maintainable and should be dismissed. The Honourable High
Court of Nathuakan was correct in dismissing the petition as it was a political
issue and Courts do not intervene in the Legislative Assembly functioning.
Further, the recent Constitutional Amendment under Article 356 (5) bars this
Honourable Court’s jurisdiction.
1.2 Whether the Suit under Article 131 by the Ousted Chief Minister
is maintainable?
It is humbly submitted that the suit filed under Article 131 of the Constitution by
the ousted Chief Minister, Sh. Sukhia Balm is not maintainable as he has no cause
of action. The plaintiff is not a state4 and also not competent to file a suit as he
lacks a locus and is not a State within the meaning of Article 131, for he has been
ousted from his office after the proclamation of emergency and the State’s
interests are now represented by the Governor. Needless to say, the presence of
recent amendment of Article 356 (5) of the Constitution also bars the Court’s
jurisdiction from inquiring into the validity of the Proclamation in the first place.

2 VALIDITY OF PROCLAMATION

4 th
See Basu, Commentary on Constitution of India, 8 Ed. Vol. 5, pp 5640-5641; State of Bihar v UOI AIR 1970 SC
1446 at 1452 (CB)

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
P a g e | 12

2.1 Whether there was a situation where the Government of the State
could not be carried on in accordance with the provisions of this
Constitution?
It is humbly submitted that a situation arose in the State of Nathuakan where the
Government of the State could not be carried on in accordance with the provisions of this
Constitution as the speaker locked the assembly and the session was called at a Hotel.
There was a total failure of Constitutional machinery. The Chief Minister and Council of
Ministers were not at all co-operating in running the Government constitutionally. Hence,
the Proclamation was proper.
Further, it is respectfully stated that a situation arose in the State of Nathuakan where the
Government of the State could not be carried on in accordance with the provisions of this
Constitution.
There are a number of cases which qualify as situations where the Government
of the State is unable to carry on in accordance with the provisions of the
Constitution and the proclamation of emergency is proper.

i. Where a ministry, although properly constituted acts contrary to the

provisions of the Constitution and the Governor’s attempts to call the
ministry to order have failed5.-

In the present scenario, the government of the State acted contrary to the
provisions of the Constitution and the Governor’s attempts to call the ministry
failed as well because the CM and the 32 MLAs of the Digress party did not
attend the session called by the Governor on the 16th of December 2016. Thus,
by disobeying the Governor, who solely holds the power to summon a session of
the State assembly6, under Article 174 of the Constitution. Also, the Governor
holds the right to require attendance in the House under Article 175. By not
attending the session where their attendance was asked for by the Governor, the
CM and the Digress party MLAs were functionally reduced.

5
Setalvad, Union & State Relations (1974), pp. 164-165 cited by C.J. Beg in State of Rajasthan v UOI at Para 63
6
Raja Ram Pal v Hon’ble Speaker, Lok Sabha 2007 3 SCC 184

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
P a g e | 13

ii. Where a Political Party seeks to subvert the principles of responsible

government and sets up a party dictatorship78:

In the present case, the Digress party on several instances sought to subvert the
principles of responsible government and set up a party dictatorship by illegally
disqualifying 14 MLAs for a mere dissent with regard to the leadership of the
Chief Minister. Also, the 14 MLAs did not qualify for disqualification under any
of the grounds mentioned in either Article 191 of the Constitution or the 10th
Schedule. The Digress party also issued an express directive to their CM and the
other 32 MLAs against attending the session called for by the Governor under
article 174, thus, acting in a dictatorial manner and against the provisions
(Article 174 and 175) of the Constitution and leading to the failure of the
functioning of the Constitutional Machinery of the State.

2.2 Whether there was a satisfaction of the President under Article

356?
It is humbly submitted that there was a satisfaction of the president under Article
356 due to the prevalent situation of political chaos and failure to function in the
State of Nathuakan as the Government of the State could not be carried on in
accordance with the provisions of this Constitution. The President’s satisfaction
was there as there was a nexus between his decision and the report of the
Governor stating the presence of political chaos and failure to function within the
State of Nathuakan.

2.3 Whether the factual position indicated in the Governor’s report

is open to judicial review?
It is humbly submitted that the factual position indicated in the Governor’s report
is not open to Judicial review by the courts.

7
S.R. Bommai v UOI, AIR 1994 SC 1918 (paras 64-65)
8
Cf. Lord Lothian in the House of Lords in the debate on Cl. 12 (1) (a) of the Government of India Act, 1935

Written Submissions on behalf of the Respondents

 Fifth ASCENT Moot Court Competition, 2016
P a g e | 14

Prayer

It is respectfully submitted that the proclamation is valid and constitutional and the petition and
suit be dismissed.

Written Submissions on behalf of the Respondents