IN THE CODE: 17A

HONOURABLE SUPREME COURT OF SHANKAI

AT SHANKAI

  SLP (Civil) No: 156/2010

[UNDER ARTICLE 136 OF THE CONSTITUTION OF SHANKAI AND O.XVI, R.1, THE SUPREME

COURT RULES, 1966]

CLUBBED WITH

Writ Petition No: 5678/2010

[UNDER ARTICLE 32 OF THE CONSTITUTION OF SHANKAI]

CLUBBED WITH

Review Petition (Civil) No:1/2010

[UNDER ARTICLE 137 OF THE CONSTITUTION OF SHANKAI AND O. XL, THE SUPREME

COURT RULES, 1966]

IN THE MATTER OF:

ASARI CHAPEL BOARD REPRESENTED THROUGH ITS

CHAIRMAN.........................APPELLANT

Versus

BABY ZEON THROUGH MR. KITTU

ZEONITE.......................................................RESPONDENT

CLUBBED WITH:

MR. ARCHIBALD.....................................................................................................
PETITIONER

Versus

REPUBLIC OF SHANKAI.........................................................................................

RESPONDENT

CLUBBED WITH:

PEOPLE’S UNION FOR DEMOCRACY REPRESENTED BY ITS CHAIRMAN...............

PETITIONER

Versus

ELECTION COMMISSION REPRESENTED THROUGH THE CHIEF ELECTION

COMMISSIONER.................................................................................................... RESPONDENT

- MEMORIAL ON BEHALF OF APPELLANT/PETITIONERS -

 Table of Contents

INDEX OF AUTHORITIES......................................................................................................I

STATEMENT OF FACTS.....................................................................................................V

STATEMENT OF JURISDICTION..................................................................................VII

ISSUES FOR CONSIDERATION....................................................................................VIII

SUMMARY OF ARGUMENTS..........................................................................................IX

WRITTEN SUBMISSIONS....................................................................................................1

I. THE HIGH COURT ERRED IN LAW BY GRANTING TITLE OF THE DISPUTED

PROPERTY TO THE RESPONDENTS AND SUBSEQUENTLY PARTITIONING IT.......................1

1. The ‘idol’ of Baby Zeon cannot be called a juristic person who can sue...............1

2. The right to pray for the Turians has to be balanced against competing interests

of the Asaris.......................................................................................................................1

3. The right to pray cannot be granted to the Turians by relying on Articles 25/26 of

the Constitution.................................................................................................................2

4. Title was perfected by the Asaris on the basis of adverse possession......................3

i. Shinshan’s actions cannot be questioned due to the passage of time................3

ii. The plea of ‘perpetual minority’ cannot be taken...........................................3

5. Title cannot be granted to the Turians on the basis of adverse possession............4

II. A WRIT OF MANDAMUS MAY BE ISSUED TO THE RESPONDENT TO RELIEVE THE

 HOME MINISTER FROM HIS POST........................................................................................4

1. There is a Constitutional duty to protect the state from internal disturbance........4

2. The “political question” doctrine has limited application.......................................5

3. The judiciary is competent to “pierce the political thicket” in certain cases..........5

4. Failure to subscribe to an ‘oath of office’ may amount to disqualification...........6

III. THE ELECTION COMMISSION IS CONSTITUTIONALLY MANDATED TO CONDUCT

ELECTIONS WITHIN SIX MONTHS AFTER THE PREMATURE DISSOLUTION OF A

LEGISLATIVE ASSEMBLY.......................................................................................................7

1. The British Conventions with regard to the conduct of the elections need to be

followed..............................................................................................................................7

2. The expression "the House" which is a permanent body can be contrasted from

the expressions “House of People” or the “Legislative Assembly” under Article 174 of

the Constitution.................................................................................................................7

3. There is an implied period of limitation (six months) for conducting the elections

after the dissolution of the Assembly................................................................................7

PRAYER...................................................................................................................................9
 -I-

INDEX OF AUTHORITIES

[ACTS]

1. The Limitation Act, 1963...............................................................................................3

2. Representation of People Act, 1951...............................................................................8

[ARTICLES]

1. Kathleen M. Sullivan, The Nonsupreme Court, 91 MICH. L. REV. 1121, 1122

(1993).............................................................................................................................5

2. Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question

Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 232, 286

(2002).............................................................................................................................5

3. Robert F. Nagel, Political Law, Legalistic Politics: A Recent History of the Political

Question Doctrine, 56 U. CHI. L. REV. 643, 661 (1989).............................................5

4. Sanford Levinson, Could Meese Be Right this Time?, 61 TUL. L. REV.1071, 1072

(1987).............................................................................................................................5

[BOOKS]

1. ADMINISTRATIVE LAW (HWR Wade & CF Forsyth, 9th edn.)...............................5

2. DE SMITH’S JUDICIAL REVIEW, (Sweet & Maxwell, 6th edn. 2007)...................6

3. ERSKINE MAY'S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS

AND USAGE OF PARLIAMENT, (Butterworths Law, 21st edn., 2002).....................7

4. GRIFFITH & RYLE ON PARLIAMENT: FUNCTIONS, PRACTICE AND

PROCEDURES, (Sweet & Maxwell, 2nd edn.)..............................................................7

 -II-
II-

[CASES]

1. A.C. Jose v. Sivan Pillai and Ors., AIR1984SC921......................................................8

2. Advocate General of Bombay v. Yusuff Ali Ebrahim, 84IndCas759..............................3

3. Addangi Nageswara Rao v. Sri Ankamma Devatha Temple, (1973)1AWR379............1

4. Asrar Ahmed v. Durgah Committee, Ajmer, AIR1947PC1............................................3

5. B.P. Singhal v. Union of India, (2010)6SCC331...........................................................6

6. B.R.Kapur v. State of Tamil Nadu, (2001)7SCC231......................................................5

7. Beaulane Properties Ltd. v. Palmer,

(2005)3WLR554..................................................4

8. Beyeler v. Italy, [GC] No. 33202 of 1996 108-14 ECHR 2000-I 90..............................4

9. Bijoe Emmannuel v. State of Kerala, 1986SCR(3)518..................................................3

10. Brigadier KK Verma v. Union of India, AIR1954Bom358...........................................4

11. Bush v. Gore, 531 U.S. 98 (2000)..................................................................................5

12. Chief Conservator of Forests v. Collector, AIR2003SC1805........................................2

13. Cooper v. Aaron, 358 U.S. 1, 18 (1958)........................................................................5

14. Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374.......6

15. D.N. Venkatarayappa and Anr. v. State of Karnataka and Ors., AIR1997SC2930......4

16. Digvijay Mote v. Union of India and Ors., 1993(3)SCC175.........................................8

17. Guranditta Mal Kapur v. Amar Das, AIR1965SC1966.................................................3

18. Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR2008SC901.........2

19. Haridasan Palayil v. The Speaker of 11th Kerala Legislative Assembly,

AIR2003Ker328.............................................................................................................6
 -III-
III-

20. Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors.,

(2009)16SCC517............................................................................................................4

21. Ismail Farooqui v. Union of India, (1994)6SCC360.....................................................1

22. Commissioner of Police v. Acharya J. Avadhutananda, (2004)13SCC771...................1

23. JA Pye (Oxford) Ltd. v. United Kingdom, (2005)49ERG..............................................4

24. Jamshed Tarachand v. Soonabai, ILR33Bom(1909).....................................................3

25. Kanhiya Lal Omar v. R.K. Trivedi,

AIR1986SC111......................................................8

26. Karnataka Board of Wakf v. Govt. of India, (2004)10SCC779.....................................4

27. Kesavananda Bharati v. State of Kerala, AIR1973SC1461......................................2, 8

28. Lachho v. Har Sahai, (1890)12ILRAll.46.....................................................................2

29. Lallu Yeshwant Singh v. Rao Jagdish Singh,

AIR1968SC620.......................................4

30. M Nagraj v. Union of India, (2006)8SCC212................................................................2

31. M.S. Gill v. Chief Election Commissioner, (1978)1SCC464.........................................8

32. Md. Mohammad Ali (Dead) by LRs. v. Jagadish Kalita and Ors., (2004)1SCC271.....4

33. Mosque known as Masjid Shahid Ganj and Ors v. Shiromani Gurdwara Parbandhak

Committee, Amritsar and Anr., AIR1940PC116............................................................3

34. Nair Service Society Ltd. v. K. C. Alexander, AIR1968SC 1165...................................2

35. P. Lakshmi Reddy v. L. Lakshmi Reddy, (1957)1SCR195.............................................4

36. P.U.C.L v Union of India, AIR2003SC2363..................................................................5

37. Pramatha Nath Mullick v. Pradyumna Kumar Mullick & Anr, LR52IA245.................1

38. R (Bancoult) vs. Foreign Secretary, 2009 (1) AC 453...................................................6

39. R. Chandevarappa and Ors. v. State of Karnataka and Ors.,

(1995)6SCC309.............4
 -IV-
IV-

40. Ram Jankijee Deities & Ors v. State Of Bihar And Ors, (1999)5SCC50......................1

41. Rambrahma Chatterjee v. Kedar Nath Banerjee, 1922(36)CLJ478..............................1

42. S.M. Karim v. Bibi Sakina, (1964)6SCR780..................................................................4

43. S.R. Bommai v. Union of India, (1994)3SCC1...........................................................2, 4

44. Sarabjit Singh v. Mantar Singh, AIR1999P&H22.........................................................6

45. Sarangadeva Periya Matam v. R. Goundar, AIR1966SC1603.....................................3

46. Saraswati Ammal v. Rajagopal Ammal, AIR1953SC491..............................................3

47. Saroop Singh v. Banto, AIR2005SC4407......................................................................4

48. State of Rajasthan v Union of India, (1973)3SCC592...............................................4, 5

49. T.N.Seshan v. Union of India and Ors., (1995)4SCC61................................................8

50. T.R.K. Ramaswami Sarvai v. The Board of Commissioner for the Hindu Religious

Endowments, Madras, ILR(1950)Madras799................................................................1

51. Union of India v. International Trading Co., (2003)5SCC437......................................6

52. Venkataramana Devaru v. State of Mysore, AIR1958SC255........................................2

[MISCELLANEOUS]

1. American Jurisprudence, Vol. 3, 2d, .............................................................................4

 -V-

STATEMENT OF FACTS

Background/Parties

The Republic of Shankai is a developing country with a predominant Turian population

(80%) and a minority consisting of Asaris (14%). Turian is a polytheist, idol worshipping

religion which has over 100 sects across the country with no specific religious tenet that is

binding on all its followers. Zeonite is one such sect which worships Zeon as their deity and

considers the birth place of Zeon (Nosfire) as their holiest place. There are other Turian sects

which also worship Zeon. There existed a temple in Nosfire which was built in the 10th

century and which was later converted into an Asari Chapel in the 15 th century after it fell

into disuse. The Asari is a monotheistic religion which shuns idol worship and believes in

building Asari Chapels where their holy book is housed. Asari religious tenets strictly

mandate non-association with things considered ‘impure’ (idol worship, etc.). Although a

liberal interpretation of the same has gained wide acceptance which allows peaceful co-

existence. The People’s Union for Democracy [PUD] is an NGO involved in promoting

democratic principles in the country.

The Disputes

SLP (Civil) No. 156/2010: The High Court of Nosfire had granted title of the Chapel in

Nosfire to the Turians on the basis of adverse possession and on their ‘belief and faith’ that

the place was actually the birthplace of Zeon. The property was partitioned with the Central

Dome being given to the Turians while the outer courtyard and the adjoining graveyard to the
 -VI-
VI-

Asaris. The Asaris have preferred an appeal against this judgment.

Writ Petition No. 5678/2010: After the High Court of Nosfire pronounced its judgment,

there were communal clashes in Upper Shankai where Nosfire was located. The Home

Minster decided not to take any action to contain the situation and left for Hawaii. Mr.

Archibald has filed a writ petition to direct the Prime Minister to relieve the minister of his

portfolio.

Review Petition No. 1/2010: Amidst the turmoil, the State Government of Upper Shankai

lost the confidence of the majority and the House was dissolved by the Governor. The

Election Commission failed to conduct elections after the dissolution for a period exceeding 6

months. PUD filed a writ petition seeking a direction to the Election Commission to conduct

elections. The High Court rejected it citing a previous judgment of the Supreme Court. The

PUD has sought a review of the judgment.

 -VII-
VII-

STATEMENT OF JURISDICTION

The Asari Chapel Board has approached the Hon’ble Supreme Court of Shankai invoking its

extraordinary appellate jurisdiction under Article 136 of the Constitution of Shankai read

with O.XVI, R.1, The Supreme Court Rules, 1966.

Mr. Archibald has approached this Hon’ble Supreme Court of Shankai invoking its Writ

jurisdiction under Art.32 of the Constitution of Shankai read with Part IV, O.XXXV, R.7 of

the Supreme Court Rules, 1966.

The People’s Union for Democracy has approached this Hon’ble Supreme Court of Shankai

invoking its power to review its earlier decision in Special Reference No. 1 of 2002, [(2002)

8 SCC 237] under Article 137 of the Constitution of Shankai read with O.XL, R.1, The

Supreme Court Rules, 1966.

The Appeals/Petitions have been clubbed under Article 142 of the Constitution of Shankai by

the Hon’ble Court for final disposal.

All of which is urged in detail in the written submission and is submitted most respectfully.
 -VIII-
VIII-

ISSUES FOR CONSIDERATION

I. WHETHER THE IMPUGNED JUDGEMENT IS BAD IN LAW IN THAT IT

GRANTED TITLE OF THE DISPUTED PROPERTY TO THE TURIANS?

 WHETHER BABY ZEON IS A JURISTIC PERSON WHO CAN SUE THROUGH

HIS NEXT FRIEND?

 WHETHER A TITLE CAN BE GRANTED BASED ON MERE FAITH AND

BELIEF?

 WHETHER TITLE WAS PERFECTED BY THE ASARIS BY VIRTUE OF

ADVERSE POSSESION?

 WHETHER A TITLE CAN BE GRANTED TO THE TURIANS ON THE BASIS

OF ADVERSE POSSESSION?

II. WHETHER THE HOME MINISTER CAN BE REMOVED BECAUSE OF

VIOLATION OF CONSTITUTIONAL DUTIES?

 WHETHER THE RESPONDENTS CAN TAKE RECOURSE TO THE

“POLITICAL QUESTION” DOCTRINE?

 WHETHER THE DOCTRINE OF PLEASURE CAN BE BROUGHT UNDER

JUDICIAL REVIEW?

 WHETHER THE FAILURE TO SUBSCRIBE TO AN OATH OF OFFICE MAY

 -IX-
IX-

AMOUNT TO A DISQUALIFICATION?

III. WHETHER THE ELECTION COMMISSION IS UNDER A CONSTITUTIONAL

DUTY TO CONDUCT ELECTIONS WITHIN SIX MONTHS AFTER THE DISSOLUTION

OF THE LEGISLATIVE ASSEMBLY?

SUMMARY OF ARGUMENTS

I. The High Court has erred in law by granting title of the disputed property to the

Respondents and subsequently partitioning it.

The idol of ‘Baby Zeon’ cannot be called a juristic person who can sue as it was not properly

consecrated. The right to pray for the Turians needs to be balanced with a competing right of

the Asaris to build the Chapel and pray which can be understood by a harmonious

construction of Articles 25/26 of the Constitution. Further, the title cannot be granted to the

Turians on mere ‘belief and faith’ as Section 110 of the Evidence Act permits possesion to be

sufficient proof of title in case commencement of title cannot be established. The Asaris had

perfected their title to the disputed property due to undisputed and continuous usage from

1528 to 1949.

II. A writ of mandamus may be issued to the Respondent to relieve the Home

Minister from his post.

There exists a Constitutional duty to protect the State from internal disturbances. The inaction

of the Home Minister can be questioned by the Court because of the legal nature of this issue

which cannot be couched as a political question. In any case, the judiciary has pierced the

political thicket on occasions which show an arbitrary or whimsical exercise of power. The

political question doctrine is on the wane. Lastly, the doctrine of pleasure has also been the

subject of judicial review which leads to the conclusion that a minister maybe disqualified on

the violation of his oath of office.

 -X-

III. The Election Commission is constitutionally mandated to conduct elections

within six months after the premature dissolution of a legislative assembly.

By virtue of the Westminister model on which the Constitution is based, and principles of

democracy which have been read to be a basic feature of the Constitution, the Election

Commission should be mandated to conduct election within 6 months of the dissolution of a

legislative assembly. If no time limit is prescribed, then the elections can be indefinitely

delayed. The “House’ continues to be in existence even after the dissolution of the

“assembly”, thereby mandating the period of six months to be the benchmark for the

formation of a new assembly. In any case, the Election Commission should only be allowed

to delay elections in case of any act of God and not otherwise.

 WRITTEN SUBMISSIONS

I. The High Court erred in law by granting title of the disputed property to the

Respondents and subsequently partitioning it.

1. The ‘idol’ of Baby Zeon cannot be called a juristic person who can sue.

A consecration of the idol needs to be proved, for it to be called a juristic person 1. The

mere placing of idols in a Chapel does not show that there was a consecration by faith or

belief, when the Chapel was in existence from 1528 to 1949 without any resistance.

2. The right to pray for the Turians has to be balanced against competing

interests of the Asaris.

The Supreme Court has held that, unless the place has a particular significance for a

religion so as to form an essential or integral part thereof, it would not be an essential or

integral part of such religious practice. 2 In the present case, the Turians had built a temple in

Nosfire, where they believed Zeon was born. Similarly, when the temple fell into disuse, a

Chapel was built by Shinshan in the same location. This state of affairs continued till 1949.

Hence, the right to pray cannot be automatically given to the Turians as it was unoccupied

and was not used as a location to offer prayers.

1
Addangi Nageswara Rao v. Sri Ankamma Devatha Temple, (1973)1AWR379; T.R.K.
Ramaswami Sarvai v. The Board of Commissioner for the Hindu Religious Endowments,
Madras, ILR(1950)Madras799; Pramatha Nath Mullick v. Pradyumna Kumar Mullick &
Anr, LR52IA245; Ram Jankijee Deities & Ors v. State Of Bihar And Ors, (1999)5SCC50.
2
Ismail Farooqui v. Union of India, (1994)6SCC360 at ¶82; Commissioner of Police v.
Acharya J. Avadhutananda, (2004)13SCC771.
 3. The right to pray cannot be granted to the Turians by relying on Articles

25/26 of the Constitution.

Articles 25 and 26 of the Constitution require a harmonious construction 3 by which

“beliefs” or practices being “essential” to one religion, cannot under Article 25, be

transplanted or imposed on another religion. Also, an attempt to “desecularise” Article 25, by

imposing the “belief and faith” of one religion on another should fail due to the overarching

emphasis on secularism by the Supreme Court4. Therefore, just because the Turians

‘believed’ that the Temple in Nosfire was built at the birthplace of Zeon; this fact alone

cannot give them a better right to profess their religious belief when competing interests of

the Asaris also existed.

Arguendo, title cannot be granted on mere “belief and faith”.

As the commencement of title cannot be proved on the basis of evidence and is based

on mere conjecture5, Section 110 of the Evidence Act provides that title follows possession6.

Where there is proof of long possession, it would constitute prima facie proof of title in the

person having possession7. In the present case, the title vested with the Asaris due to the fact

that possession of the Chapel in Nosfire was retained by them from 1528 to 1949.

4. Title was perfected by the Asaris on the basis of adverse possession.

3
Venkataramana Devaru v. State of Mysore, AIR1958SC255.
4
Kesavananda Bharati v. State of Kerala, AIR1973SC1461; SR Bommai v. Union of India,
(1994)3SCC1; M Nagraj v. Union of India, (2006)8SCC212.
5
¶2 of the Proposition
6
Chief Conservator of Forests v. Collector, AIR2003SC1805 at ¶19.
7
Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR2008SC901; Lachho v.
Har Sahai, (1890)12ILRAll.46; Nair Service Society Ltd. v. K. C. Alexander,
AIR1968SC1165.
 The Asaris had perfected their title to the property by virtue of adverse possession.

The Chapel continued to exist undisputed from 1528 to 1949. This occupation constitutes a

sufficient length of time which went undisputed for perfecting the title.

i. Shinshan’s actions cannot be questioned due to the passage of

time.

It can be seen that the practice of “shunning places of idol worship”, which is an Asari

tenet, cannot be interpreted to mean that a Chapel cannot come into existence where idol

worship was carried out earlier. Such an instance would only make the creation of the Chapel

irregular8.

ii. The plea of ‘perpetual minority’ cannot be taken.

It cannot be contended that the idol of Baby Zeon being a perpetual minor, no adverse

possession lies due to the benefits given to minors under §§6(1) & 7 of the Limitation Act.

An idol is considered a minor only in terms of it filing a suit through a next friend. This

interpretation cannot be extended to mean that for all other purposes (like for computing the

limitation period in case of adverse possession) also an Idol should be treated like a minor9.

5. Title cannot be granted to the Turians on the basis of adverse possession.

Defensible (adverse) possession must be settled, lengthy, open and where exclusivity

is claimed, excluding all others, especially the true owner, and acquiesced in by the owner10.
8
Asrar Ahmed v. Durgah Committee, Ajmer, AIR1947PC1; Advocate General of Bombay v.
Yusuff Ali Ebrahim, 84IndCas759; Jamshed Tarachand v. Soonabai, ILR33Bom(1909);
Saraswati Ammal v. Rajagopal Ammal, AIR1953SC491; Bijoe Emmannuel v. State of
Kerala, 1986SCR(3)518
9
Mosque known as Masjid Shahid Ganj and Ors v. Shiromani Gurdwara Parbandhak
Committee, Amritsar and Anr., AIR1940PC116; Sarangadeva Periya Matam v. R. Goundar,
AIR1966SC1603; Guranditta Mal Kapur v. Amar Das, AIR1965SC1966
10
Brigadier KK Verma v. Union of India, AIR1954Bom358; Lallu Yeshwant Singh v. Rao
Jagdish Singh, AIR1968SC620; P. Lakshmi Reddy v. L. Lakshmi Reddy, (1957)1SCR195; R.
Long possession is not necessarily adverse possession11. As the Supreme Court has noted,

adverse possession should be the last remedy (noting further the unkind reception to the same

by the European Court of Human Rights12) that can be given to a person keeping in mind the

period of limitation and the conditions laid down for the same 13. The Turians have not been

able to show an undisputed title as right after the incident of 1949, the Asaris had tried to

reclaim the Chapel.

II. A writ of mandamus may be issued to the Respondent to relieve the Home

Minister from his post.

1. There is a Constitutional duty to protect the state from internal disturbance.

Article 355 of the Constitution enjoins the Union to protect every State against

external aggression14 and internal disturbance and to ensure that the government of every

State is carried on in accordance with the provisions of the Constitution. It is thus incumbent

of the Minister to perform his duties to protect the State of Upper Shankai and its residents in

the wake of communal tension.

2. The “political question” doctrine has limited application.

The American Courts which follow a stricter “separation of power” have stated that it

[The Court] had the "responsibility to resolve the federal and constitutional issues the judicial
Chandevarappa and Ors. v. State of Karnataka and Ors., (1995)6SCC309; D.N.
Venkatarayappa and Anr. v. State of Karnataka and Ors., AIR1997SC2930; Md. Mohammad
Ali (Dead) by LRs. v. Jagadish Kalita and Ors., (2004)1SCC271; Karnataka Board of Wakf
v. Govt. of India, (2004)10SCC779; Saroop Singh v. Banto, AIR2005SC4407
11
American Jurisprudence, Vol. 3, 2d, p.81; S.M. Karim v. Bibi Sakina, (1964)6SCR780
12
Beaulane Properties Ltd. v. Palmer, (2005)3WLR554; JA Pye (Oxford) Ltd. v. United
Kingdom, (2005)49ERG; Beyeler v. Italy, [GC] No. 33202 of 1996 108-14 ECHR 2000-I 90
13
Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors., (2009)16SCC517
14
State of Rajasthan v. Union of India, AIR1977SC 1361; S.R. Bommai v. Union of India,
(1994)3SCC1
system has been forced to confront."15 The political question doctrine itself cannot coexist16

with the current Court's views of how interpretive power is allocated under the Constitution17.

3. The judiciary is competent to “pierce the political thicket” in certain cases.

The court should not shrink from its duty of performing its functions merely because

there is a political thicket18. If a question arises whether an authority under the Constitution

has acted within the limits of its power or exceeded it, it can certainly be decided by the

court. It would be its constitutional obligation to do so19.

Arguendo, The “pleasure doctrine” has been subjected to judicial review.

It has been held that in a democracy governed by Rule of Law, where arbitrariness in

any form is eschewed, no Government or Authority has the right to do what it pleases. The

doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically 20.

When the Constitution provides that some offices will be held during the pleasure of the

President, without any express limitations or restrictions, it should however necessarily be

read as being subject to the “fundamentals of constitutionalism” 21. In England, in principle

15
Bush v. Gore, 531 U.S. 98 (2000).
16
Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine
and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 232, 286 (2002)
17
Cooper v. Aaron, 358 U.S. 1, 18 (1958); Robert F. Nagel, Political Law, Legalistic
Politics: A Recent History of the Political Question Doctrine, 56 U. Chi. L. Rev. 643, 661
(1989); Kathleen M. Sullivan, The Nonsupreme Court, 91 Mich. L. Rev. 1121, 1122 (1993);
Sanford Levinson, Could Meese Be Right this Time?, 61 Tul. L. Rev.1071, 1072 (1987);
B.R.Kapur v State of Tamil Nadu, (2001)7SCC231
18
P.U.C.L v Union of India, AIR2003SC2363
19
State of Rajasthan v Union of India, (1973)3SCC592
20
ADMINISTRATIVE LAW (HWR Wade & CF Forsyth, 9th edn.), pp.354-355
21
B.P. Singhal v. Union of India, (2010)6SCC331 at ¶22
even such ‘political questions’ and exercise of prerogative power have been subjected to

judicial review on principles of legality, rationality or procedural impropriety22.

4. Failure to subscribe to an ‘oath of office’ may amount to disqualification.

As the pleasure doctrine is not beyond judicial review it can be seen that the

administrative inaction23 in the present case will be hit by “irrationality”24. An oath of office

administered to the Cabinet Minister under Article 99 is a prerequisite to fill a seat in

Parliament as per Article 84 of the Constitution. The obvious intention of the oath is to ensure

that the person concerned makes a commitment to live by the constitutional process 25. He

does not represent any particular religion and now he is duty bound to inspire equal faith in

the minds of all26. The oath prescribed in Schedule III to the Constitution of India is the law

in view of Article 13 and breach thereof would constitute a disqualification under Article

102(e) of the Constitution.

III. The Election Commission is constitutionally mandated to conduct elections

within six months after the premature dissolution of a legislative assembly.

1. The British Conventions with regard to the conduct of the elections need to

be followed.

The Constitution is enacted on the pattern of the Westminster system of parliamentary

22
R (Bancoult) vs. Foreign Secretary, 2009 (1) AC 453; DE SMITH’S JUDICIAL REVIEW,
(Sweet & Maxwell, 6th edn. 2007), p.15
23
Union of India v. International Trading Co., (2003)5SCC437
24
Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374
25
Sarabjit Singh v. Mantar Singh, AIR1999P&H22
26
Haridasan Palayil v. The Speaker of 11th Kerala Legislative Assembly, AIR2003Ker328
democracy and, therefore, election has to be held within the stipulated time following the

British conventions as reflected in Article 174(1) of the Constitution27.

2. The expression "the House" which is a permanent body can be contrasted

from the expressions “House of People” or the “Legislative Assembly” under

Article 174 of the Constitution.

In any case, under Article 174 what is dissolved is an Assembly while what is

prorogued is a House. Even when an Assembly is dissolved, the House continues to be in

existence. The Speaker continues under Article 94 in the case of the House of the People or

under Article 179 in the case of the State Legislative Assembly till the new House of the

People or the Assembly is constituted Therefore, fresh elections for constituting a new

Legislative Assembly have to be held within six months from the last session of the dissolved

Assembly as the House continues even after the dissolution of the Assembly.

3. There is an implied period of limitation (six months) for conducting or the

elections after the dissolution of the Assembly.

The word 'election' has been interpreted to include all the steps necessary for holding

election28. In the absence of any period provided either in the Constitution or in the

Representation of the People Act, 1951, the Election Commission may not hold election at all

and which would be against the principles of democracy (which is a part of the basic

structure29).

Arguendo, The Election Commission has to set in motion the process of

27
ERSKINE MAY'S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND
USAGE OF PARLIAMENT, (Butterworths Law, 21st edn., 2002), p.218; GRIFFITH &
RYLE ON PARLIAMENT: FUNCTIONS, PRACTICE AND PROCEDURES, (Sweet &
Maxwell, 2nd edn.), p.113
28
M.S. Gill v. Chief Election Commissioner, (1978)1SCC464; A.C. Jose v. Sivan Pillai and
Ors., AIR1984SC921; Kanhiya Lal Omar v. R.K. Trivedi, AIR1986SC111
29
Id; T.N.Seshan v. Union of India and Ors., (1995)4SCC61; Kesavananda Bharati v. State of
Kerala, AIR1973SC1461
 conducting election before the expiry of six months from the dissolution.

The employment of words "on an expiration" occurring in Sections 14 and 15 of the

Representation of the People Act, 1951 respectively show that Election Commission is

required to take steps for holding election immediately on expiration of the term of the

Assembly or its dissolution, although no period has been provided for. The aforesaid

provisions to indicate that on the premature dissolution of Legislative Assembly the Election

Commission is required to initiate immediate steps for holding election for constituting

Legislative Assembly on the first occasion and in any case within six months from the date of

premature dissolution of the Legislative Assembly.

Arguendo, The direction to conduct elections within 6 months is not mandatory

but directory and only exceptional circumstances can justify digression.

The direction to conduct elections within 6 months would be subject to such rare exceptional

cases occasioned on account of facts situation (like acts of God) which make holding of

elections impossible. But man made situations intended to defer holding of elections should

be sternly dealt with and should not normally be a ground for deferring elections beyond six

months period, starting point of which would be the date of dissolution30.

PRAYER

Wherefore, in the light of the above, it is most humbly prayed before this Hon’ble Court

to declare:

 The title to the disputed property rests with the Asaris.

 The Home Minister should be directed to step down from his office because of his

inaction to control the law and order situation and also by virtue of his violation of the

oath of office.

30
Digvijay Mote v. Union of India and Ors., 1993(3)SCC175
  The Election Commission is constitutionally mandated to conduct elections within six

months of the dissolution of a legislative assembly.

And pass any other order that it may deem fit.

Date: 28th January, 2010 (Counsel for Appellant and Petitioners)

Counsel code: 17A