CODE: R-5

ANNUAL UNIVERSITY MOOT 2018

BEFORE
THE HONOURABLE HIGH COURT

UNDER ARTICLE 365OF INDIAN CONSTITUTION

STATE OF UTTAR PRADESH…………………………………………PETITIONER

V.
UNION OF INDIA…………………………………………………….…RESPONDENT

MEMORIAL FOR THE RESPONDENT

 COUNSEL APPEARING ON THE BEHALF OF T HE RESPONDENT

CONTENTS
ABBREVIATIONS ........................................................................................................................ 3

INDEX OF AUTHORITIES. ................................................................................................................... 4

STATEMENT OF JURISDICTION. .......................................................................................................... 5

STATEMENT OF FACTS. ..................................................................................................................... 6

ISSUES INVOLVED. ............................................................................................................................ 8

[ISSUE 1] THAT IT IS THE GOVERNOR’S OBLIGATION TO MAKE REPORT TO THE PRESIDENT. .......... 8

SUMMARY OF ARGUMENTS. .............................................................................................................. 9

[ISSUE 1] THAT IT IS THE GOVERNOR’S OBLIGATION TO MAKE REPORT TO THE PRESIDENT. .......... 9

ARGUMENTS ADVANCED ................................................................................................................ 10

[ISSUE 1] THAT IT IS THE GOVERNOR’S OBLIGATION TO MAKE REPORT TO THE PRESIDENT. ........ 10

[ISSUE 2] THAT SECULARISM WAS SABOTAGED WHICH GAVE RISE TO A SITUATION IN WHICH
GOVERNMENT OF THE STATE CANNOT BE CARRIED ON IN ACCORDANCE WITH THE PROVISIONS OF

THE CONSTITUTION. .................................................................................................................... 11

[ISSUE 3] THAT THERE WAS A BREAKDOWN IN CONSTITUTIONAL MACHINERY IN THE STATE OF

UTTAR PRADESH. ........................................................................................................................ 13

[ISSUE 4] THAT REQUIREMENTS OF STATE EMERGENCY UNDER ARTICLE 356 WERE FULFILLED. . 14

PRAYER .......................................................................................................................................... 16

2
 ABBREVIATIONS

1. A.I.R - All India Reporter

2. Art. - Article

3. CJI - Chief Justice of India

4. Hon’ble - Honorable

5. i.e. - That is

6. J. - Judge

7. Ors. - Others

8. All. - Allahabad

9. Mad. - Madras

10. PIL - Public Interest Litigation

11. SC - Supreme Court of India

12. SCC - Supreme Court Cases

13. Sd/- - Signed

14. UP - Uttar Pradesh

15. v - Versus

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 INDEX OF AUTHORITIES.

Cases

Han v. F. N. Rana and Others. ...................................................................................................... 14

In Re Shree Ramalu, A.I.R. 1974 AP 106 .................................................................................... 13
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225; Indira Nehru Gandhi v. Raj
Narain, 1975 Supp S.C.C. 1. ..................................................................................................... 11
Krishna Kumar Singh v. State Of Bihar, (2017) 3 S.C.C. 1 ......................................................... 11
Padfield v. Minister of Agriculture, Fisheries and Food ;1968 A.C. 997 ..................................... 15
S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 S.C.C. 370........................................................ 13
S. Veerabadran Chettiar v. E.V. Ramaswami Naicker, 1959 S.C.R. 1211 ................................... 13
S.R. Bommai v. Union of India (1994) 3 S.C.C. 1. ...................................................................... 10
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1 ................................................................ 11, 13
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1. ..................................................................... 11
S.R.Bommai v. Union of India, 1994 S.C.C. (3) 1 ....................................................................... 14
State of Rajasthan & Ors. Etc. v Union Of India Etc 1978 S.C.R. (1) 1. ..................................... 15
State of Rajasthan v Union of India A.I.R. 1977 SC 1361 ........................................................... 13
State of Rajasthan v. Union of India (1977) 3 S.C.C. 592. ........................................................... 10
SundarlalPatwa v Union of India, A.I.R. 1993 MP 214. .............................................................. 13
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 S.C.C. 17 ................. 11

Statutes

Article 356, Constitution of India ................................................................................................... 9

4
 STATEMENT OF JURISDICTION.

In The Present Petition Under Article 226 Of The Constitution Of India, The Respondent
Humbly Submits To The Jurisdiction Of The Hon’ble High Court.

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 STATEMENT OF FACTS.

1. Uttar Pradesh is a powerful and robust state of India. Uttar Pradesh is a populous state of
India and highly political in character. Every political party in India wants to have a
ruling majority in U.P. Every political party knows that rule in U.P. will lead them to
Centre governance someday.
2. State of U.P. has given maximum number of Prime Ministers to India. The political DNA
of youth is charged. All political parties in the state are having youth wings.
3. In central governance there are two powerful political parties IJP and IDP. IJP is a right-
wing party while IDP is centrist and poses itself as a secular party of the country.
Indianpopulation is a mix of Christian, Hindu, Muslim and Jews. U.P. is currently under
rule of IJP.
4. Thakurganj is a thickly populated area of Lucknow. In this area in certain pockets
Muslim population lives in concentrated manner. However, the area has maintained its
inclusive culture and is known for its metal work and Jadozi worldwide.
5. On the eve of Makar Sankranti i.e. 14thJanuary 2016 Hindu VayuputraSena (HVS) a
hindu youth wing of IJP plans a meeting in Babuganj area wherein they plan to
congregate for TirangaYatra in Thakurganj area and they post it on their official webpage
of Facebook and Instagram.
6. On 15th January PrajatantrikChatraSena (PCS) an outfit supported by U.P. local party
makes a post that if you dare come in ‘PathakhaWaliGali’ on the day of Republic Day.
HVS responds to the challenge on social media.
7. The challenge is brought in to the knowledge of SSP City by a youth of the city which is
ignored by him due to his business on the occasion of Republic Day celebration in the
city.
8. On the Republic Day around 12:30 in the noon the Tirangayatra starts from Hazratganj
and goes in the PathakhaWaliGali wherein Anti-muslim and Anti-Pakistan slogans are
mouthed and firing is made by illegal arms. In the clash of this nature firing is exchanged
between both groups wherein Prakash a member of HVS is killed on spot.

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9. This incident spurs violence in the city and suddenly 6 UPSRTC buses are torched and
dozens of shops are looted, and this communal clash leads to a devastating effect in the
city.
10. Till the Police could gear up to deal with the situation much harm had been made to the
city and this incident left a big scar on the face of humanity.
11. Governor of U.P. names the incident as ‘Blot on the face of U.P.’. Chief Minister of U.P.
is quite annoyed with the incident orders for a Magisterial probe of the incident and asks
for immediate action against the miscreants.
12. IDP demand resignation from the state government on moral grounds. IJP says that this
communal riot was result of conspiracy of opposition. The Thakurganj incident is
highlighted by media with full glare and creates a pressure over Governor for imposition
of presidential rule.
13. The ruling government in the state of U.P. is running with a sweeping majority. The LIU
and IB report sent before the incident shows lack of action on the part of Police and
especially inaction of SSP caused this violence to happen.
14. The SSP is suspended from his job till pendency of the inquiry. The Governor being
perturbed by the whole issue recommends for imposition of Presidential rule under
Article 356 of Indian Constitution.
15. The President on the report of Governor imposes emergency. State Government
challenges the emergency rule before the High Court.

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 ISSUES INVOLVED.

[ISSUE 1]

[ISSUE 1] THAT IT IS THE GOVERNOR’S OBLIGATION TO MAKE REPORT TO THE PRESIDENT.

[ISSUE 2]

THAT SECULARISM WAS SABOTAGED WHICH GAVE RISE TO A SITUATION IN WHICH

GOVERNMENT OF THE STATE COULD NOT BE CARRIED ON IN ACCORDANCE WITH THE

PROVISIONS OF THE CONSTITUTION.

[ISSUE 3]

THAT THERE WAS A BREAKDOWN OF CONSTITUTIONAL MACHINERY IN THE STATE OF UTTAR

PRADESH.

[ISSUE 4]

THAT REQUIREMENTS OF STATE EMERGENCY UNDER ARTICLE 356 WERE FULFILLED.

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 SUMMARY OF ARGUMENTS.

[ISSUE 1] THAT IT IS THE GOVERNOR’S OBLIGATION TO MAKE REPORT TO THE PRESIDENT.

Governor is an executive head of a State. Under Article 159 the governor takes oath in name of
god that “he will to the best of his ability preserve, protect and defend the Constitution.” So, it is
the prime duty of the Governor to protect, preserve and defend constitutional provisions within
state. Continuing the same intention, Article 356 confers power to the Governor in case of failure
of constitutional machinery within states.

[ISSUE 2] THAT SECULARISM WAS SABOTAGED WHICH GAVE RISE TO A SITUATION IN WHICH

GOVERNMENT OF THE STATE CANNOT BE CARRIED ON IN ACCORDANCE WITH THE PROVISIONS

OF THE CONSTITUTION.

Secularism is a part of the basic structure of the Constitution. The acts of a State Government
which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can
lawfully be deemed to give rise to a situation in which the Government of the State cannot be
carried on in accordance with the provisions of the Constitution.

[ISSUE 3] THAT THERE WAS A BREAKDOWN OF CONSTITUTIONAL MACHINERY IN THE STATE OF

UTTAR PRADESH.

It is stated in article 356 that if the President, on receipt of a report from the Governor of a State
or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot
be carried on in accordance with the provisions of this Constitution he can assume all the
functions of the government of the state.

[ISSUE 4] THAT REQUIREMENTS OF STATE EMERGENCY UNDER ARTICLE 356 WERE

FULFILLED.

State emergency can be imposed under Article 356 of the Indian Constitution because the
president of India is satisfied with the governors report on the incident. Article 356 of India
Constitution says that the emergency (due to failure of constitutional machinery) in a State can
be proclaimed if the President of India is satisfied with the report of a Governor or otherwise, or
on his own initiative that a situation has arisen in which that State Government cannot be carried
on in accordance with the provisions of the Constitution.

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 ARGUMENTS ADVANCED

[ISSUE 1] THAT IT IS THE GOVERNOR’S OBLIGATION TO MAKE REPORT TO THE PRESIDENT.

Governor is an executive head of a State. Under Article 159 the governor takes oath in name of
god that “he will to the best of his ability preserve, protect and defend the Constitution.” So, it is
the prime duty of the Governor to protect, preserve and defend constitutional provisions within
state. Continuing the same intention, Article 356 confers power to the Governor in case of failure
of constitutional machinery within states. With the use of words ‘president ……is satisfied that’,
establishes that the report of the governor need not be always implemented, the satisfaction of
President is required.

In the case of S.R. Bommai v. Union of India1, Justice Ramaswamy said that the Governor, as a
constitutional head of the government must, in times of constitutional crisis, bring about sobriety
and should, with a high degree of constitutional responsibility, inform the President about the
situation in the state.

In State of Rajasthan v. Union of India2, CJ Beg quoted India’s first Attorney General M.C.
Setalvad’s Tagore Law Lectures in 1974 on “Union State Relations" which is as follows:
“There could also be a failure of the constitutional machinery where the Ministry fails to carry
out the directives issued to it validly by the Union Executive in the exercise of its powers under
the Constitution. The very statement of some of the situations, which may bring about the use of
the machinery provided by Article 356 shows the pivotal position which the Governor occupies
in respect of these situations and the grave responsibility of his duties in the matter of reporting
to the President under Articles 355 and 356 of the Constitution.”

Similarly, in the present case the conditions in the State of U.P. were as such which led to the
failure of constitutional machinery in the state and governor being perturbed by the whole issue
recommended for imposition of Presidential rule under Article 356 of Indian Constitution.

1
S.R. Bommai v. Union of India (1994) 3 S.C.C. 1.
2
State of Rajasthan v. Union of India (1977) 3 S.C.C. 592.

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[ISSUE 2] THAT SECULARISM WAS SABOTAGED WHICH GAVE RISE TO A SITUATION IN WHICH
GOVERNMENT OF THE STATE CANNOT BE CARRIED ON IN ACCORDANCE WITH THE PROVISIONS
OF THE CONSTITUTION.
It is humbly submitted before the court that secularism is a part of the basic structure of the
Constitution.3 It has been held in the case of S.R. Bommai v. Union of India that the acts of a
State Government which are calculated to subvert or sabotage secularism as enshrined in our
Constitution, can lawfully be deemed to give rise to a situation in which the Government of the
State cannot be carried on in accordance with the provisions of the Constitution.4

Religious tolerance and equal treatment of all religious groups and protection of their life and
property and of the places of their worship are an essential part of secularism enshrined in our
Constitution. Any profession and action which go counter to the aforesaid creed are a prima
facie proof of the conduct in defiance of the provisions of our Constitution. The consequences of
such professions and acts which are evidently against the provisions of the Constitution cannot
be measured only by what happens in praesenti.5 A reasonable prognosis of events to come and
of their multifarious effects to follow can always be made on the basis of the events occurring,
and if such prognosis had led to the conclusion that in the circumstances, the Governments of the
States could not be carried on in accordance with the provisions of the Constitution, the inference
could hardly be faulted.

It has been stated in S.R. Bommai case that whatever the attitude of the State towards the
religions, religious sects and denominations, religion cannot be mixed with any secular activity
of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. This
is evident from the provisions of the Constitution.6 HVS, a hindu youth wing of IJP (a right wing
and the ruling party of U.P.), planned to congregate for TirangaYatra in Thakurganj area and
posted the same on their official webpage of Facebook and Instagram. 7 The TirangaYatra was
only planned for Thakurganj area, however, they deliberately entered the area of Patakhawali
gali to answer the challenge posed by PCS. HVS, well aware of the diversity and the people

3
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp
S.C.C. 1.
4
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
5
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
6
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; Krishna Kumar Singh v. State Of Bihar, (2017) 3 S.C.C. 1;
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 S.C.C. 17.
7
Moot proposition ¶5.

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residing in Patakhawali gali, got involved in clashes involving verbal and physical abuse. The
reciting of anti-muslim slogans and anti-pakistan slogans and the firing led to the death of a
member of HVS.8 This death of a member of HVS further enraged the youth wing and it can be
inferred that the burning of buses was an act initiated on their part.

The common thread of breach of secularism ran through the events and with prognosis action
was taken. Consequential situation that arose due to which the President was satisfied that
Government of the State of Uttar Pradesh cannot be carried on in accordance with the provisions
of the Constitution and it breached the basic features of the Constitution, namely secularism.
Therefore the satisfaction reached by the President cannot be said to be irrelevant warranting
interference. It is but the duty of the court to interpret the Constitution to bring the political
parties within the purview of constitutional parameters for accountability and to abide by the
Constitution, the laws for their strict adherence.9

Secularism was subverted the moment those slogans were shouted10 and hence, the act of HVS, a
youth wing of the state government, led to the inability of the state government to be carried in
accordance with the provisions of the constitution. Political parties, group of persons or
individuals should not mix religion with politics. Religious tolerance and fraternity are basic
features and postulates of the Constitution as a scheme for national integration and sectional or
religious unity.

Programmes or principles evolved by political parties based on religion amounts to recognising

religion as a part of the political governance which the Constitution expressly prohibited. It
violates the basic features of the Constitution. Positive secularism negates such a policy and any
action in furtherance thereof would be violative of the basic features of the Constitution. When
the President receives a report from a Governor or otherwise had such information that the
Government of the State is not being carried on in accordance with the provisions of the

8
Moot proposition ¶8.
9
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
10
Moot proposition ¶8.

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Constitution, the President is entitled to consider such report and reach his satisfaction in
accordance with law.11

[ISSUE 3] THAT THERE WAS A BREAKDOWN IN CONSTITUTIONAL MACHINERY IN THE STATE OF

UTTAR PRADESH.
It is humbly submitted before the court that there was a failure in constitutional machinery in
Uttar Pradesh. It is stated in article 356 that if the President, on receipt of a report from the
Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government
of the State cannot be carried on in accordance with the provisions of this Constitution he can
assume all the functions of the government of the state.12 In the present case the government has
not been able to maintain law and order in Uttar Pradesh due to which a lot of loss has occurred
to state and its people. It was observed in State of Rajasthan v Union of India13 that an outbreak
of unprecedented violence which the Government is unable to curb may be consideration" for
exercise of powers under Article 356 of the Constitution. Further it was reiterated in
SundarlalPatwa v Union of India14 by Justice in a minority decision an outbreak of
unprecedented violence which the Government is unable to curb may be a consideration. A great
natural calamity like a severe earthquake or a flood creating a situation which the Government of
a State is unable to meet may be a consideration. A large epidemic leading to mass deaths and
exodus may be another, in all these cases there may be such a failure of the Government of the
State as to amount to an abdication of its Governmental power." Further he was of the view that
that the satisfaction of the President in the case of breakdown of law amd order due to
unprecedented violence must be held to be conclusive. Accordingly, it is not open to judicial
scrutiny.

Further it is humbly submitted before the honorable court that it was duty on part of centre to
impose emergency in order to counter the breakdown of constitutional machinery. It was held in
In Re A Shree Ramalu15 that, Article 355 casts a duty on the Union Government to protect every
State against internal disturbance and to ensure that the Government of every State is carried on
in accordance with the provisions of the Constitution. But in a given situation, the President may

11
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; S. Veerabadran Chettiar v. E.V. Ramaswami Naicker, 1959
S.C.R. 1211; S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 S.C.C. 370.
12
Article 356, Constitution of India.
13
State of Rajasthan v Union of India A.I.R. 1977 SC 1361.
14
SundarlalPatwa v Union of India, A.I.R. 1993 MP 214.
15
In Re Shree Ramalu, A.I.R. 1974 AP 106.

13
come to the view that is not enough to save the situation but action under Article 356 is
necessary. There is nothing to prohibit the President from proceeding to act under Article 356 in
cases of internal disturbance. Which was Further reiterated in SR Bommai v Union of India16We
have already noted that by virtue of Article 355 it is the duty of the Union to ensure that the
Government of every State is carried on in accordance with the provisions of the Constitution.
Article 356, on the other hand, provides the remedy when there has been an actual break-down of
the constitutional machinery of the State. Any abuse or misuse of this drastic power damages the
fabric of the Constitution, whereas the object of this Article is to enable the Union to take
remedial action consequent upon break-down of the constitutional machinery, so that that
governance of the State in accordance with the provisions of the Constitution, is restored.

[ISSUE 4] THAT REQUIREMENTS OF STATE EMERGENCY UNDER ARTICLE 356 WERE FULFILLED.
It is humbly submitted before the Supreme Court of India that the state emergency can be
imposed under Article 356 of the Indian Constitution because the president of India is satisfied
with the governors report on the incident. Article 356 of India Constitution says that the
emergency (due to failure of constitutional machinery) in a State can be proclaimed if the
President of India is satisfied with the report of a Governor or otherwise, or on his own initiative
that a situation has arisen in which that State Government cannot be carried on in accordance
with the provisions of the Constitution. The Hon’ble Supreme Court in S.R. Bommai v. Union of
India17held that “the power conferred by Article 356 upon the President is a conditioned power.
It is not an absolute power. This satisfaction may be formed on the basis of the report of the
Governor or on the basis of other information received by him or both. The existence of relevant
material is a pre-condition to the formation of satisfaction”. The satisfaction must be formed on
relevant material. The dissolution of the Legislative Assembly-assuming that it is permissible is
not a matter of course. It should be resorted to only when it is necessary for achieving the
purposes of the proclamation. It was held in Han v. F. N. Rana and Others18 that the “power to
declare failure of the Constitutional machinery in States under Art. 356 vested in the President by
the Constitution and are incapable of being delegated or entrusted to any other body or authority
under Art. 258(1)”. It was supremely held in Padfield v. Minister of Agriculture, Fisheries and

16
S.R.Bommai v. Union of India, 1994 S.C.C. (3) 1.
17
S.R Bommai v. Union of India; 1994(3) S.C.C. 1.
18
Han v. F. N. Rana and Others.

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Food19 that Art. 356 which was introduced by the 38th- Amendment, making the satisfaction of
the President final and conclusive, not open to be questioned in any court, on any ground.

The only limit on the Power of the President under Art. 356, cl. (1) is that the President should be
satisfied that a situation has arisen where the Government of the State cannot be carried on in
accordance with the provisions of the Constitution. The satisfaction of the President is a
subjective one and, cannot be tested by reference to any objective tests. It is deliberately and
advisedly subjective because the matter in respect to which he is to be satisfied is of such a
nature that its decision must necessarily be left to the executive branch of Government. There
may be a wide range of situations which may arise and their political implications and
consequences may have to be evaluated in order to decide whether the situation is such that the
Government of the State cannot be carried on in accordance with the provisions of the
Constitution. This interpretation was given by Hon’ble Supreme court in State of Rajasthan &
Ors. Etc. v Union of India Etc.20

19
Padfield v. Minister of Agriculture, Fisheries and Food 1968 A.C. 997.
20
State of Rajasthan & Ors. Etc. v Union Of India Etc 1978 S.C.R. (1) 1.

15
 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, this

Hon’ble Supreme Court may be pleased to adjudge:

1. That the President’s order to impose emergency under Article 356 was constitutional and
was according to the provisions laid down in Article 356.

AND/OR

Pass any other order that this Hon’ble Court may deem fit in the interests of justice, equity

And good conscience.

And for this the Respondent, as is duty bound shall forever humbly pray.

Sd/-

(Counsel on behalf of the Respondent)

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