IV) That the insertion of two paragraphs in the Governor’s speech, its contents and the

resolution passed by the Legislature of Chalukya are Unconstitutional.

A) The Counsel would like to submit that the insertion of two paragraphs in the Governor’s
speech and its contents are unconstitutional. Inserting a paragraph or directing the Governor to
say according to the Council of Ministers is outside their scope of powers. Office of Governor is
a constitutional post and by making the Constitutional post susceptible to political biasness will
endanger the neutrality which the Governor is required to maintain in order to carry out his
functions. Since Governor is not an elected post and in that scenario if he speaks against the
Central government on behalf of State Government both of which is an elected government, this
will hamper the Centre-State relations as well as malign the office of Governor. The resolution
adopted by the State Legislative Assembly of Chalukya is against the Rules and Procedures
established to carry out business of the State. Therefore it is unconstitutional.

1) The insertion of two paragraphs in the speech of Governor goes beyond the power
exercised by Council of Ministers.

Article 163 of Constitution states that the Governor should perform his function on the aid and
advice of Council of Ministers1 but this article also talks about the power to exercise discretion in
some constitutional matters.2 According to Article 176, the Governor is required to address the
first session of Legislative Assembly. 3 This address to the Legislative Assembly is a part of
constitutional functions required to be carried out by the Governor and therefore the Governor
has the right to use his discretionary power to prepare as well as deliver his speech. Any
alternation or insertion in the speech of Governor by the Council of Ministers will be an
infringement on power of discretion of governor. This will also be beyond the powers of Council
of Ministers. The Council of Minister can advice him in executive and legislative matters but the
contents of the speech is a discretion which the Governor decides as what he has to speak.
Therefore the insertion of any paragraph in the speech of the Governor would be
unconstitutional.

1
Article 163 (1)
2
Article 163(2)
3
Article 176
It was held by the Supreme Court in Shamsher Singh v. State of Punjab 4 that “The President or
the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at
the head in the case of the Union and the Chief Minister at the head in the case of State in all
matters which vests in the executive whether those functions are executive or legislative in
character. Neither the President nor the Governor is to exercise the executive functions
personally.” However preparing speech and deciding what to speak in the Legislative assembly
would not come under the purview of executive or legislative function. It’s a mere address to the
first Assembly session after general elections. Therefore the Governor exercises a discretionary
power in this case and the any insertion or alteration of the speech by the Council of ministers
would be unconstitutional because it will be beyond the powers conferred to them by the
Constitution.
2) Susceptibility to politically motivated statements would malign the office of Governor.
Governor is the Constitutional head of a State 5. There are some constitutional functions which
are entrusted on him to be performed which require him to remain neutral. These include
appointment of CM and Council of Ministers6, dissolving the Legislative Assembly when he
believes that the Government does not enjoy majority support 7 and these functions also requires
Governor to call a political party who claims to enjoy majority to form the government when no
other party enjoys majority in the legislature 8. There have been instances when Governor
committed a politically motivated action thereby violating the principles of Constitution.

In Anil Kumar Jha9, the question on the exercise of power exercised by the Governor under
Article 164(1) was in issue. The Governor in this case had appointed the leader of political
alliance as CM, without examining whether he enjoyed the support of majority of legislators or
not. The Supreme Court in this case held “it to be an arbitrary and mala fide exercise of the
power by the Governor, which is a fraud on the Constitution.”

4
1975 SCR (1) 814
5
Article 154
6
Article 164
7
Ibid
8

9
(2005) 3 SCC 150
In another case of Mahabir Prasad v. Profulla Chandra 10, it was held that this power of Governor
is absolute and that the Governors have continued to exercise their discretionary powers in an
arbitrary and partisan manner. “Governor's office (a vestige of colonial power) has been misused
and he had been made hand-made of Union government. Article 156(1) provides that the
Governor holds office during the pleasure of the President.11

When there has been failure of constitutional machinery, the Governor has to report to the
President and the President’s Rule can be imposed in a state. Here the role of Governor is very
important as it is his duty to report to the President of such happenings.

Therefore it can be argued that the Governor also has some functions to be performed on behalf
of Central Government. These are listed under the Constitution and for these functions the
Governor need not take advice of Council of Ministers, and can act on his own discretion.
Therefore the Governor is not merely the executive head of the State Government but is also an
agent of the Central Government in the State. Whenever the Governor had taken any politically
motivated action with respect to his powers conferred to him under the Constitution, it has
resulted as a fraud upon the Constitution. In 2005, the actions of Governor of Bihar, Buta Singh
in the case of Rameshwar Prasad (6) v. Union of India 12 had made the Supreme Court remark
that at considerable length that the constitutional authority and position of the governor must be
insulated from political partisanship. Therefore, the Governor should remain neutral as only then
he could be carrying out his functions in a constitutional manner. The Sarkaria Commission had
also argued that the Governor is the “linchpin of the constitutional apparatus of a state” and
therefore making this office susceptible to political calculations would prevent the governor from
carrying out her functions with impartiality and probity.

In the present case, insertion of a politically motivated speech would result in compromising
with the Office of Governor and this would lead to political biasness. Since the office of
Governor is a constitutional post, this political biasness would act as an obstacle in carrying out
the functions entrusted upon by the constitution. Therefore the insertion and contents of two
paragraphs in the speech of Governor is unconstitutional because it would make him susceptible

10
(AIR 1969 Cal. 189)
11
Article 156
12
(2006) 2 SCC 1
to political biasness, therefore going against the principles of Constitution which require him to
remain neutral for the ultimate benefit of the masses.

3) The contents of two paragraphs go against the Constitutional idea of federalism.

The Counsel would like to argue that the contents of the speech will have a negative effect on the
Centre-State relationship and the federal structure. Under the federal structure the Central
Government puts certain responsibilities and State Governments owe certain obligations. 13 The
primary responsibility of the Central Government is to protect state from external aggression and
internal disturbance and has to ensure that the State Government is carried according to
provisions of the Constitution.14 The State Government have to ensure due compliance with the
central laws and they must not so use their executive power as to create impediment in the
exercise of its executive powers by the Union Government. 15 In this respect the Governor is the
person who represents the State Government but also sees that they perform their obligation. In
other words the Governor is a constitutional head of the State and is also an agent of central
government. Therefore using an appointed office to speak against an elected office will have
implications on the federal structure of the Country.

Under the Constitution, the Centre and the State exercise legislative, administrative and financial
relations. These relations help in overall cooperation in performing various functions and as a
result of these functions, the country progresses and the benefit of common people takes place.
There are certain provisions which expressly secure cooperation and coordination between the
centre and the states. These include (i)"Full faith and credit shall be given throughout the
territory of India to public acts, records and judicial proceedings of the Union and of every
State16"; (ii) “the parliament may by law provide for the adjudication of any dispute or complaint
with respect to the use, distribution or control of the waters of, or in, any inter-State river or river
valley.17”; (iii) “the President to establish an inter-State Council to inquire into and advise upon
disputes between states, to investigate and discuss subjects in which some or all of the States, or
the Union and one or more of the States, have a common interest. 18”; (iv) “Parliament may by
13
Constitutional Law I, Udit Raj Rai pg 130
14
Article 355
15
Article 256 and 257 of Constitution
16
Article 261
17
Article 262
18
Article 263
law appoint such authority as it considers appropriate for carrying out the purposes of the
constitutional provisions related to the inter-state freedom of trade and commerce.19”

Therefore it is evident that for working of the Constitution, the Centre and the States have to
exercise their power in a cooperative manner. The Constitution gives the outline of that
cooperation. The Centre and the State have to exercise legislative, administrative and financial
function in a coordinative manner so as not to encroach upon the power of the other entity. It is
because of these relations working in an effective manner that the country runs prosperously.

In the present case, the contents of the paragraph act as a threat to these relations. These threats
can result in breakdown of centre-state relations and the federal structure as prescribed under the
Constitution. As a result Centre–State crises will occur that will be against the principles of
Constitution and against welfare of people. The Country cannot run when the federal structure is
in danger owing to centre-state conflict. Therefore the contents of the two paragraphs inserted in
the speech of the Governor are unconstitutional because they are against the federal structure of
the Country embedded in the Constitution.

4) The resolutions passed are against the prescribed rules and procedures of the House.

According to Rules of Procedure and Conduct of Business in Lok Sabha 20, to be admissible as a
resolution certain condition are to be fulfilled and these include: “(i) it shall be clearly and
precisely expressed; (ii) it shall raise substantially one definite issue; (iii) it shall not contain
arguments, inferences, ironical expressions, imputations or defamatory statements; (iv) it shall
not refer to the conduct or character of persons except in their official or public capacity; and (v)
it shall not relate to any matter which is under adjudication by a court of law having jurisdiction
in any part of India.” And according to Rule 174 21, “The Speaker shall decide whether resolution
or a part thereof is or is not admissible under these rules and may disallow any resolution or a
part thereof when the Speaker is of the opinion that it is an abuse of the right of moving a
resolution or calculated to obstruct or prejudicially affect the procedure of the House or is in
contravention of these rules.” Therefore the power to allow or disallow a resolution is with the
Speaker of that House and he evaluates the resolution based on the condition prescribed above.

19
Article 307
20
Rule 173, 15th Edition, 2014
21
Rule 174
In a similar manner different State Legislative Assemblies also have Rules and Procedures.
According to Rules of Procedure and Conduct of Business of the State Legislative Assembly22,
the conditions for admissibility of resolution include that: “(i) it shall be clearly and precisely
expressed; (ii) it shall raise substantially one definite issue; (iii) it shall not contain arguments,
inferences, ironical expressions, imputations or defamatory statements; (iv) it shall not refer to
the conduct or character of persons except in their official or public capacity; and (v) it shall not
relate to any matter which is under adjudication by a court of law having jurisdiction in any part
of India.” The Speaker of the House has the power to allow or disallow or amend the resolution
so that it is not violative of the procedure of the House.23

These above stated statutory provisions indicate that passing of a resolution by the State
Legislative Assemble is legal provided that, for its admissibility, it shall not be related to any
matter which is upon adjudication under any Court of the Country 24. However in the present
case, the State of Chalukya challenged the decision of Meluha Government to require States to
borrow money under its own name. The matter was challenged before the Supreme Court and
therefore it is currently under adjudication. In the meanwhile the resolution was passed by the
State of Chalukya relating to issue of borrowing under the name of States and the Speaker had
also allowed this resolution by not keeping the mind the Legislative Assembly rules. This
Resolution is violating the condition mentioned respectively under Rule 173 clause (v) of Lok
Sabha Rules25 and under Rule 89 clause (v) State Legislative Assembly rules 26 which states that
the resolution should not relate to any matter which is under adjudication of any court. The
Speaker who is required to look upon these resolutions to check if they are in accordance with
the procedures of the House has not performed his functions according to the respective rules.
Therefore the resolution passed by State of Chalukya should be inadmissible in the initial stage
of State Legislative Assembly and it is therefore unconstitutional.

22
Rule 89, UP State Legislative Assembly,1958 (corrected upto January, 2015)
23
Clause (v)
24
ibid
25
Rules of Procedure and Conduct of Business in Lok Sabha, 15th Ed. 2014
26
Rule 89, UP State Legislative Assembly,1958 (corrected upto January, 2015)