IN THE HON’BLE HIGH COURT OF PANWAB

Writ and Civil Appellate Jurisdiction No. _____ of 2020

IN THE MATTER BETWEEN:

HIS EXCELLENCY GOVERNOR OF THE STATE OF ANJANA & ORS.

Vs

SHRIMATI R. SHARMILA & ORS.

MEMORANDUM ON BEHALF OF THE RESPONDENT

Submitted by:
V. Vaishnavi Devi
Serial Number- 201203

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 INDEX

Sr. No. Topics Page

No.
1. LIST OF ABBREVIATIONS 3

2. BIBLIOGRAPHY AND REFRENCES 4

3. RELEVANT CASES 5

4. STATEMENT OF JURISDICTION 6

5. SUMMARY OF FACTS 7

6. ISSUES FRAMED 9

7. SUMMARY OF ARGUMENTS 10

8. BODY OF PLEADING 11

9. PRAYER 20

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 LIST OF ABBREVIATIONS

V/VS -- VERSUS
AIR -- ALL INDIA REPORTER
HON’BLE -- HONOURABLE
SCC -- SUPREME COURT CASES
SC -- SUPREME COURT
HC -- HIGH COURT
ORS. -- OTHERS
ANR. -- ANOTHERS
VOL. -- VOLUME
PARA -- PARAGRAPH
I.e. -- THAT IS
CO. -- COMPANY
CAL—CALCUTTA (KOLKATA)
MAD—MADRAS (CHENNAI)

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 BIBLIOGRAPHY AND REFRENCES

List of Statute
1. The Constitution of INDIA 1949

2. The prevention of corruption act 1988

3. Indian Penal Code 1860

4. Code of Criminal Procedure 1973

5. The Representation of People Act 1951

Books Referred
1. Constitutional Law Of INDIA, 56th edition JN Pandey

2. Code of Criminal Procedure Basu

3. Indian Penal Code K.D. Gaur

4. Indian Constitutional Law, 5th edition Vol’s I II M. P. Jain

5. Commentry on the Constitution of India, 8th edition Basu Durgadas

Internet Sources
1. https://indiankanoon.org

2. https://www.indiacode.nic.in

3. www.legalserviceindia.com

4. www.wikipedia.org

5. legalbites.in/library-constitutional-law/

6. www.casemine.com

7. http://legislative.gov.in

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 RELEVANT CASES

❖ Assistant Collector, Central Excise v. J.H. Industries, AIR 1979 SC 1889

❖ P. V. Narasimha Rao v State (CPE CBI) AIR 1998 SC 2120: 1998 (4) Supreme 1: (1998)
4 SCC 626: 1998 Cr LJ 2930: (1998) 1 SCJ 529.
❖ M. Karunanidhi v. Union of India, 1979 AIR 898, 1979 SCR (3) 254
❖ Dr. Y.S. Rajasekhara Reddy And ORS vs His Excellency, The Governor Of the State of
Andhra Pradesh (1999) (6) ALD 763, 1999 (6) ALT 381
❖ Dravida Munnetra Kazhagam, etc. v. The Governor of Tamil Nadu (1994), 1 Mad LW 145
❖ Supru Jaykar Motilal C.R. Das vs. Union of India, AIR 1999 Pat 221.
❖ Jogendranath vs. State of Assam, AIR 1982 GAU. 256
❖ Mahavirprasad Sharma vs. Prafulla Chandra Ghosh, AIR19669 CAL.198
❖ S. Dharmalingam vs. his excellency governor of Tamil Nadu, AIR 1989 MAD48

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 STATEMENT OF JURISDICTION

THE HON’BLE HIGH COURT OF JUDICATURE AT PANWAB EXERCISES JURISDICTION

TO HEAR AND ADJUDICATE OVER THE MATTER UNDER ARTICLE 226 (1) OF THE
CONSTITUTION OF ANJANA. THE RESPONDENTS HUMBLY SUBMITS TO
JURISDICTION OF THE HON‟BLE COURT WHICH HAS BEEN INVOKED BY THE
PETITIONER. HOWEVER, THE RESPONDENTS RESERVE THE RIGHT TO CHALLENGE
THE SAME.

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 SUMMARY OF FACTS

I. FUND MISAPPROPRIATION FROM STATE TREASURY

The High Court of the State allowed a Public Interest Litigation alleging that The Chief
Minister of the State of Anjana, Shrimati R. Sharmila is a party to a conspiracy as a result
of which a large amount of Rs. 700 crores has been wrongfully withdrawn from the State
Treasury and misappropriated by several persons by submitting fake bills and false
certificates and vouchers, and directed the CBI to investigate into the alleged crime and
take necessary action.

II. CBI FILED A CHARGE SHEET AND ADMITTED THE CASE IN SPECIAL COURT
The CBI filed the charge sheet against the Chief Minister Shrimati R. Sharmila and more
than 100 public servants and a few others which was, by an order, cognized by the
concerned Special Court about various offences committed by the accused persons
including Shrimati R. Sharmila, the Chief Minister.

III. SUSPENSION ORDER OF CM BY THE GOVERNOR

Various political parties have demanded the resignation of the Chief Minister. Several
national dailies have written adversely commenting on the CM’s conduct in not tendering
her resignation from the High Office. Many organisations, including NGOs have been
organising public demonstrations, mobilizing people from various parts of the State due to
which the normal life is adversely affected. The Governor of the State issued an order
placing Shrimati R. Sharmila, the CM under suspension for the duration of the Trial and
subject to the decision of the Special Court in the trial.

IV. INTERIM CHIEF MINISTER – SENIOR MOST CABINET MINISTER

Mr. Rajaswamy, the senior most Cabinet Minister was appointed as the Interim Chief
Minister by the Governor and administered the oath of Office and secrecy to
Mr.Rajaswamy the senior most Cabinet Minister within the few hours of the issue of the
order of suspension to Shrimati R. Sharmila.

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V. WRIT PETITION FILED BY CM IN HIGH COURT
Chief Minister, Shrimati R. Sharmila, filed a writ petition in the High Court of Panwab,
challenging the said order and the action of the State Governor, impleading the Governor
Mr. Arjun Deshmukh by name as the first respondent and the State represented by the Chief
Secretary as the second respondent. In addition, she impleaded the CBI through its Director
General as the third respondent in a separate application held along with the writ petition.
Shrimati R. Sharmila has sought interim relief by way of operation of the impugned order
of the Governor as well an order injuncting the Governor and the State Government to
permit the petitioner to function as the Chief Minister during the pendency of the writ
petition. The Division Bench of the High Court admitted the writ petition but refused to
grant injunction

VI. COUNTER AFFIDAVITS BY RESPONDENTS

The Respondents filed separate counter affidavits questioning the maintainability of the
writ petition, the impleadment of the State Governor as a party besides asserting that the
impugned order and further action taken by the Governor was perfectly valid and justified.
According to them, the Governor acted in exercise of his Constitutional powers to ensure
that the government was carried in accordance with the provisions of the Constitution.

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 ISSUES FRAMED

Issue 1
Whether the said writ petition maintainable by the Hon’ble High Court of Panwab?

Issue 2
Whether the actions taken by the Governor of the state within his constitutional powers?

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 SUMMARY OF ARGUMENTS

ISSUE 1

Whether the said writ petition maintainable by the Hon’ble High Court of Panwab?

The counsel for the respondents humbly contends that the said Writ petition is not maintainable
under Article 226 of the CONSTITUTION OF ANJANA. Because the High Court should be
careful to be extremely circumspect in granting this relief especially during the pendency of
Criminal Investigations. The investigation of the Criminal Case is a very sensitive phase where
the investigating authority has to collect evidence from all odd corners and anything that is likely
to thwart its course may inhibit the interest of justice. The immunity granted to the Governor under
Article 361, he is not answerable to the Court even on the ground has the Governor holds his office
during the pleasure of the President, the question of mala fide action of the Governor can be gone
into by the President i.e., the central Executive.

ISSUE 2

Whether the actions taken by the Governor of the state within his constitutional powers?

The counsel for the respondents humbly state that the Respondent in the said petition the Governor
Mr. Arjun Deshmukh’s actions are carried out in accordance with the powers vested in him by The
CONSTITUTION OF ANJANA in Article 163(2) which describes the Power of Governor’s office
to act and take decisions in its discretion and the said article also describes that the action taken by
Governor shall not be called in question on the ground that he ought or ought not to have acted in
his discretion.

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 BODY OF PLEADING

ISSUE 1

Whether the said writ petition maintainable by the Hon’ble High Court of Panwab?

The counsel appearing for the respondent humbly submits that the said writ petition is not
maintainable under Article 226 of the CONSTITUTION OF ANJANA. As there is no violation of
any fundamental rights or legal rights of the petitioner as claimed in the petition.

The counsel for Respondents humbly submits that the remedies of Writ provided under Article
226 of the CONSTITUTION OF ANJANA also provides that the High Court should be careful to
be extremely circumspect in granting these reliefs especially during the pendency of Criminal
investigations (A). Writ of mandamus cannot be issued against the President of Anjana or the
Governor of a State for the exercise of powers and duties of his office or any act done or purporting
to be done by him in the exercise and performance of those powers and duties (B).

A. Writ as a relief during Criminal investigation?

The Chief minister of the state of Anjana, Shrimati R. Sharmila is undergoing a criminal case
of Misappropriation of funds from State Treasury along with more than 100 public servants
and a Charge sheet has been filed in Special Court. She has been suspended from her High
office by the Governor of the State for the Period of trial and subject to the decision of the
Special Court and appointed Mr. Rajaswamy the Senior most Cabinet Minister as the Interim
Chief Minister. Shrimati R. Sharmila is a prime accused in a Criminal offence. The
investigation of a criminal case is a very sensitive phase where the investigating authority has
to collect evidence from all odd corners and anything that is likely to thwart its course may
inhibit the interests of Justice1.
The Counsel for the respondents would like to recite the section 13(1) of the Prevention of
Corruption Act 1988.

1
Assistant Collector, Central Excise v. J.H. Industries, AIR 1979 SC 1889

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 Section 13(1) of The Prevention of Corruption Act states:
13. Criminal misconduct by a public servant. —
1 [(1) A public servant is said to commit the offence of criminal misconduct, —

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use
any property entrusted to him or any property under his control as a public servant or
allows any other person so to do; or
(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1. —A person shall be presumed to have intentionally enriched himself illicitly

if he or any person on his behalf, is in possession of or has, at any time during the period of his
office, been in possession of pecuniary resources or property disproportionate to his known
sources of income which the public servant cannot satisfactorily account for.
Explanation 2. —The expression ‘‘known sources of income’’ means income received from
any lawful sources.].
The Relevance of the above stated section of this act is with the fact that Shrimati R. Sharmila
is an accused in funds misappropriation from State treasury, which is a criminal accusation.

Further, the Counsel would like to explain the Section 21 of Indian Penal Code: any minister
in a Central or State Government, who (does or) does not take pay from the Government and
works as an honorary one, is a public servant since he is entrusted to discharge public duty by
virtue of holding the particular office2. As rightly pointed out by learned senior counsel for the
first respondent the Supreme Court in M. Karunanidhi v. Union of India held that Chief
Minister or Minister is a 'public servant' within the meaning of the Code3. Which means that a
Chief Minister is a Public Servant hired by the Governor of the State. And the Governor has
the right to sanction the prosecution of the Chief minister as per Section 19 of The Prevention
of Corruption act 1988. So, the Governor has acted in his own powers in sanctioning the
prosecution.

2
P. V. Narasimha Rao v State (CPE CBI) AIR 1998 SC 2120: 1998 (4) Supreme 1: (1998) 4 SCC 626: 1998 Cr LJ
2930: (1998) 1 SCJ 529.
3
1979 AIR 898, 1979 SCR (3) 254

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 The Counsel further would want the court to consider that Suspension of Shrimati R. Sharmila
is not a punishment inflicted upon her but rather a preventive measure to keep off a public
servant against whom either a disciplinary or a criminal case has been initiated to prevent them
from abusing their official position or tampering with the evidence. And for the fair trial
suspension was required.

Since the Trial of the said case is already awaiting, the Writ petition may cause hurdles in the
process of Trial in the Special Court.

B. Can the Writ of Mandamus be issued against Governor of the State?

It would be expedient to notice the protection granted to the President and the Governor by
Article 361 of the Constitution which runs in verbatim thus:
"Protection of President and Governors and Raj Pramukhs :--

(1) The President or the Governor or Raj Pramukh of a State, shall not be answerable to any
Court for the exercise and performance of the powers and duties of his office or for any act
done or purporting to be done by him in the exercise and performance of those powers and
duties:
Provided that the conduct of the President may be brought under review by any Court,
Tribunal or body appointed or designated by either House of Parliament for the
investigation of a charge under Article 61;
Provided further that nothing in this clause shall be construed as restricting the right of any
person to bring appropriate proceedings against the Government of India or the
Government of a State.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President,
or the Governor of a State, in any Court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor of a State shall
issue from any Court during his term of office.

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 (4) No civil proceedings in which relief is claimed against the President, or the Governor of a
State, shall be instituted during his term of office in any Court in respect of any act done
or purporting to be done by him in his personal capacity, whether before or after he entered
upon his office as President, or as Governor of such State, until the expiration of two
months next after notice in writing has been delivered to the President or the Governor, as
the case may be, or left at his office stating the nature of the proceedings, the cause of
action therefore, the name, description and place of residence of the party by whom such
proceedings are to be instituted and the relief which he claims. Article 226 confers the
jurisdiction and the power on the High Court to issue to any person or authority,
Government orders or writs for enforcement of any right conferred by Part III or for any
other purpose.

From a reading of Article 361 it emerges that a Governor shall not be answerable to any Court
for exercise of powers and duties of his office or for any act done or purporting to be done in
exercise and performance of those powers and duties. No criminal proceeding can be instituted
or continued. No process for his arrest or imprisonment can be issued by any Court during his
term of office. No civil proceeding seeking any relief against him with respect to any act done
by him in his personal capacity, shall be instituted irrespective of the fact whether it was done
before or after he assumed office, unless prior notice of two months is served on him in
accordance with the procedure prescribed in any Court during his term of office. We fail to
comprehend how it can be held that a writ petition would be maintainable against the Governor
especially in view of the specific provisions of Article 361 of the Constitution whatever the
credence to judicial review one may give as it being the basic structure of the Constitution.4

The Counsel for Respondents would like to proceed further with Dravida Munnetra Kazhagam,
etc. v. The Governor of Tamil Nadu (1994)5, As rightly pointed out by Shri K. Parasaran,
whether the Governor has passed an order or has not passed any orders, the ratio is the same,
namely, the Governor cannot be called into question, on his silence over the matter. It is open

4
Dr. Y.S. Rajasekhara Reddy And ORS ... vs His Excellency, The Government Of the State of Andhra Pradesh
(1999) (6) ALD 763, 1999 (6) ALT 381
5
1 Mad LW 145

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 to the Governor to exercise his power and perform his duties in any particular manner. Article
361(1) of the Constitution of ANJANA says that “he shall not be answerable to any court for
the exercise and performance of the powers and duties of his office or for any act done or
purporting to be done by him in the exercise and performance of those powers and duties. I
have already indicated that the distinction sought to be raised by the petitioner by referring to
the Governor as the Deciding Authority is not based on any legal foundation. As rightly pointed
out by the respondents there is no such an authority as the Deciding Authority in the Prevention
of Corruption Act. The Division Bench has elaborately considered all the relevant authorities
on the subject and has given a clear and cogent verdict on the issue. In my opinion, it will be a
judicial waste of time to go through the exercise once over again. The verdict of the Division
Bench is as follows:
In the result, the present petition which impleads the Governor of Tamil Nadu as a party and
seeks the issue of a writ as against him besides quashing of the order is not maintainable.
Consequently, the writ petition is dismissed as not maintainable.”
Here, the accusation on Shrimati R. Sharmila is similar to the above stated cases.

With the relevance to the above reasons, The Counsel for Respondents humbly requests the
Hon’ble High Court to Quash the Writ Petition.

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Issue 2
Whether the actions taken by the Governor of the state within his constitutional powers?

The respondent humbly submits that in 163(3) “The question whether any, and if so what, advice
was tendered by ministers to the governor shall not be inquired into in any court.”
It clearly explains that the governor’s actions exercised in his discretion. If any question arises
whether a matter falls within his discretion his decision shall be presumed to be final. And could
not be questioned in any court.
As per the statement of facts of the case The Governor of the State has issued an order placing
Shrimati R. Sharmila, the CM under suspension for the duration of the Trial and subject to the
decision of the Special Court in the trial. Also appointed Mr. Rajaswamy, the Senior most Cabinet
Minister as the Interim Chief Minister. To which Shrimati R. Sharmila has sought interim relief
by way of operation of the impugned order of the Governor as well an order injuncting the
Governor and the State Government to permit the petitioner to function as the Chief Minister
during the pendency of the writ petition.
The petitioner has also claimed that their Fundamental and legal rights have been violated while
the Counsel for respondents would humbly contradict the statement as under.

A. Whether the suspension of Shrimati R. Sharmila from the post of Chief Minister an
unconstitutional action?
To answer this question the counsel would like to refer to the verdict of Supru Jaykar Motilal
C.R. Das vs. Union of India6 . The Hon’ble supreme court stated that the expression by or
under the constitution used in article 163 (1) has a wide importance. The constitution may not
expressly provide that a particular function is to be exercised by the Governor in his discretion.
Still, the tenor or the context of the provision may show that the function is one which the
governor has to exercise in his discretion. If any question arises whether matter falls within the
Governor’s discretion or not, the decision of the Governor in his discretion is final and the

6
AIR 1999 Pat 221.

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 validity of anything done by the Governor in his discretion cannot be called in question on the
ground that he ought or ought not to have acted in his discretion.
The Governors’ committee has further clarified the position “even though in normal conditions
the exercised of the Governor’s power should be on the advice of the council of ministers,
occasions may arise when the governor may find that, in order to be faithful to the constitution
and the law and his oath of office, he has to take a particular decision independently” and in
this situation as demanding the suspension of the petitioner many organization, including
NGOs organized pubic demonstration, mobilizing people from various parts of the state due
to which the Governor had to take the decision for maintaining public tranquility and peace.

The Counsel for respondents would like to a quote M. P. Singh’s, Governor’s power to dismiss
minister or council of ministers. “The constitution expressly mentions only a few functions
which a governor exercises in his discretion. As to what other functions fall within this category
has been left vague and flexible; the constitution provides no guidelines for deciding this and,
in effect, the final judge of the matter is governor himself 7”

With relevancy to the above stated cases and statements, the counsel humbly contends that the
Governor suspending Shrimati R. Sharmila was constitutional and within the powers vested in
him by the Constitution of ANJANA.

B. Was the appointment of Mr. Rajaswamy, The senior most cabinet minister as the
interim chief minister wrongful?
The Respondent’s Counsel would like to humbly state that when there is a vacancy in the office
of Chief Minister, it is the duty of the Governor of the state to duly fill the position with
appropriate personnel deems fit by him. Here, Mr. Rajaswamy was appointed as the Interim
Chief Minister and the Governor administered the oath of Office and secrecy. The Governor
has chosen to appoint the Senior Cabinet Member which means Governor has chosen another
leader from the ruling party to ensure the peace in the state as lot of NGO’s and other Political
Parties were demanding the resignation of Shrimati R. Sharmila from the High Office.

7
an empirical study, 13 JILLY 612 (1971):SETAL VAD, union state relations (1974).

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 To give validity to such appointment, the Counsel would like to rely on a ruling by The High
Court of Guwahati in Jogendranath vs. State of Assam 8 case, “the Governor is the sole and
executive authority” to appoint the chief minister. The governor as the head of the state, “is the
sole judge to ascertain as to who commanded the support of the majority in the assembly”. The
court has quoted-
“the repository of power to appoint chief minister and the council of ministers to withdraw the
pleasure to contemplated under article 164(1) and\or dismissal of the ministry is exclusive
pleasure-cum-discretion of the governor. It follows, therefore, that the right of the governor to
withdraw pleasure, during which ministry holds office, is absolute, unrestricted and
unfettered.”

The counsel would like to humbly remind the Court that The Chief Minister is appointed by
the Governor (art. 164) and there is no constitutional bar of any kind on his choice as to whom
to appoint as the chief minister the only effective check is that the ministry shall fall if it fails
to command a majority in the assembly. In the matter of appointing the chief minister, the
constitutional provision (Art. 164 (1)) confers discretionary power on the governor which is
non justiciable. Because of immunity granted to the governor under article 361, he is not
answerable to the court even on the ground as the governor holds his office during the pleasure
of the president, the question of mala fide action of the governor can be gone into by the
president i.e., the central executive. This position has been clarified by the courts in a number
of cases9.

The respondent humbly submits that in the case of Mahavirprasad Sharma vs. Prafulla
Chandra Ghosh10, the Calcutta high court quoted that the governor in making the appointment
of the chief minister under article 164 (1) “acts in his sole discretion”, and that the “exercise
of his discretion by the governor cannot be called in questioning writ proceeding in high court”
thus, in the matter of appointment of the chief minister, the governor does not act on the advice
of the council of ministers. It is for the governor himself to make such inquires as he thinks

8
AIR1982GAU.256
9
Supra, ch. VI, section. A(ii) (a)
10
AIR19669 CAL.198

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 proper to ascertain who among the members of the legislature ought to be appointed as the
chief minister and who would be in the position to enjoy confidence of the majority in the state
assembly. Thus, the said writ petition contains no ground for being entertained by the Hon’ble
high court.
The respondents further humbly submit that in S. Dharmalingam vs. his excellency governor
of Tamil Nadu11, the appointment of the chief minister was challenged. The madras high court
ruled that in appointing the chief minister, the power exercised by the governor was wholly
within his discretion and the court could not interfere in the matter relating to his discretion.
The court observes in this connection:
“certain powers are available to the governor under article 163, which he could exercise in his
sole discretion. With regard to the action pertaining to his sole discretion, the immunity of the
governor is absolute and beyond even the writ jurisdiction of the high court. The power of
governor with regard to the appointment of the chief minister is a power which falls in his sole
discretion and therefore the court cannot call in question the same.”

The Counsel for Respondents would humbly conclude based on all the above relevant cases and
similarities with their judgements that the Governor’s action of Suspending Shrimati R. Sharmila
and appointing Interim Chief Minister immediately after suspension were within the constitutional
Powers vested in the Governor, Mr. Arjun Deshmukh. The Counsel pleads the Hon’ble High Court
that Mr. Arjun Deshmukh’s actions should not be put under Judicial Review and maintain the
status Quo of the impugned order.

11
AIR 1989 MAD48

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 PRAYER

Wherefore, in Light of the facts of the case, Issue raised, Arguments advanced and Authorities
cited; this honorable Court may be graciously pleased to adjudged and declare that:

1) Quash the Writ Petition filed by the Petitioner in this Hon’ble Court of Law because the actions
taken by the Respondents were within their powers
2) Maintain the status Quo of the impugned Act since there is no violation of the right as alleged
by the petitioner
3) Pass such other or further orders as this Honorable Court may deem fit, just and proper in the
fact and circumstances of the case.

And
FOR THIS ACT OF KINDNESS, THE RESPONDENT AS IN DUTY BOUND SHALL EVER
PRAY.

Filed by:

COUNSEL ON BEHALF OF RESPONDENT

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