BEFORE THE HON’BLE SUPREME COURT OF INDIA

CIVIL APPEAL NO …………/2016

FILED UNDER ARTICLE 133 OF THE CONSTITUTION OF

INDIA, 1950

TDPand Ors APPELLANT

V.

UNION OF INDIA and Anr RESPONDENT

____________________________________________________

ON SUBMISSION TO

THE HON’BLE SUPREMECOURT OF INDIA

_____________________________________________________

__________________________________________________

MEMORIAL FOR THE APPELLANT

___________________________________________________

Written submission for the AppellantPage 1

 TABLE OF CONTENTS

LISTOF ABBREVIATIONS....................................................3-4

STATEMEN OF JURISDICTION...........................................5

INDEXOF AUTHORITIES......................................................6

QUESTIONS PRESENTED......................................................7

STATEMENT OF FACTS.........................................................8

SUMMARY OF PLEADINGS..................................................9

PLEADINGS..............................................................................

I. WHETHER GOVERNOR HAS THE POWER TO CONVENE THE ASSEMBLY

SESSION WITHOUT THE AID AND ADVICE OF THE GOVERNMENT?
II. WHETHER PRESIDENT’S RULE IN THE STATE COULD BE IMPOSED DESPITE
ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH?
III. WHETHER GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE
ASSEMBLY AMOUNTS TO CONSTITUTIONAL BREAKDOWN AND THUS CALLS
FOR IMPOSITION OF PRESIDENT’S RULE?

PRAYER………………………………………………………….16

Written submission for the AppellantPage 2

 LIST OF ABBREVIATIONS

AIR - All India Reporter

Anr. - Another

Art. - Article

Bom - Bombay

Cal - Calcutta

DLT - Delhi Law Times

Edi. - Edition

Guj - Gujarat

Hon’ble - Honourable

ILR - Indian law report

Ker - Kerala

Pun - Punjab

Mad - Madras

MP - Madhya Pradesh

n. - Note

No. - Number

Ors.– Others

P. - Page

Pvt. - Private

Raj - Rajasthan

Written submission for the AppellantPage 3

RLR - Rajasthan Law Reports

S. - Section

SC - Supreme Court

SCC - Supreme Court Cases

SCW - Supreme Court Weekly

SCR - supreme Court Reports

v. - versus

vol. - Volume

WB - West Bengal

Written submission for the AppellantPage 4

 STATEMENT OF JURSDICTION

THE APPELLANT HEREBY HAS THE HONOUR TO HUMBLY SUBMIT THIS

MEMORANDUM OF THE PRESENT CASE FILED UNDER THE ART. 133 OF THE
CONSTITUTION OF INDIA, 1950.

Written submission for the AppellantPage 5

 INDEX OF AUTHORITIES

BOOKS REFFERED

1. Durga Das Basu, Introduction to the Constitution of India, 24TH EDITION

2. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, vol. 3
3. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (5th edn.
1990)

LIST OF CASES

CASES CITATION
Dr.K.R.Ramaswamy v. W.P. No.7577 of 2020
The Chief. Secretary,
Government of Tamil Nadu
State Of Gujarat & (2013) 3 SCC 1
AnrvsHon'BleMr Justice (Retd) Ramesh
M.Nagaraj& Others vs (2006) 8 SCC 212
Union Of India & Others
Wexford Financial Inc. Panama v. BHEL 2016 SCC 8

State Of Rajasthan &Ors. Etc. Etcvs A.I.R. 1977 SC 1361

Union Of India
1994 SCC (3) 1
S.R. Bommaivs Union Of India

Rameshwar Prasad &Orsvs AIR 2006 SC 980

Union Of India &Anr
In Re Special Reference No. 1 of 2002 AIR 2003 SC 87

Written submission for the AppellantPage 6

 QUESTIONS PRRSENTED

A) WHETHER GOVERNOR HAS THE POWER TO CONVENE THE

ASSEMBLY SESSION WITHOUT THE AID AND ADVICE OF THE
GOVERNMENT?

B) WHETHER PRESIDENT’S RULE IN THE STATE COULD BE

IMPOSED DESPITE ONGOING LITIGATION BEFORE THE
CONSTITUTION BENCH?

C) WHETHER GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF

THE STATE ASSEMBLY AMOUNTS TO CONSTITUTIONAL
BREAKDOWN AND THUS CALLS FOR IMPOSITION OF PRESIDENT’S
RULE?

Written submission for the AppellantPage 7

 STATEMENT OF FACTS

MOOT PROPOSITION

1. Tarunachal Pradesh is one of the twenty-nine States of the Republic of Indiana; it is located in
north eastern part of the Republic. The Political sphere of the State is controlled by three parties
namely; Tarunachal Democratic Party (hereinafter referred to as TDP), Tarunachal Republic
Party (hereinafter referred to as TRP) and Tarunachal Peoples Party (hereinafter referred to as
TPP).

2. TDP and TRP have been recognized as the national parties by the Election Commission of
Indiana. The Tarunachal Pradesh Legislative Assembly is a unicameral State Legislature. The
Legislative Assembly of Tarunachal Pradesh is at Vindhyanagar, the capital of the State. The
Legislative Assembly comprises of sixty Members, directly elected from single- seat
constituencies.

3. In the year 2011, the election to the 10th Legislative Assembly of the State was conducted.
The state election commission declared the results as follows:-TDP-42 seats, TRP-11 seats, TPP-
5 seats, Others-2 seats. The Governor of Tarunachal Pradesh invited TDP to form the
Government as it won the largest number of seats in the Assembly elections. The TDP thereupon
formed the Government headed by Shri. Rai Prasad as the Chief Minister.

4. The State of Tarunachal Pradesh prospered well under the leadership of Chief Minister Shri.
Rai Prasad, for instance, Hon’ble Union Minister of Agriculture laid down the founding stone of
permanent campus of first ever college of agriculture. Also, Tarunachal Pradesh pavilion was
adjudged best pavilion in the 33rd Indiana International Trade Fair (HITF)-2013, Nevai and was
awarded gold medal to quote a few.

5. However the things started turning bad when Sri. Rai Prasad, the Hon’ble Chief Minister
started to shuffle the cabinet more than often. The repeated shuffling of the cabinet led to
dissents within the ruling party. In December 2014, Rai Prasad dropped veteran Minister Prem
Chand from the Cabinet. But his mounting problems coincided with the Centre appointing
former Purva Pradesh’s Chief secretary J P Pandey as Governor on June 1, 2015. On October 6,
2015, two young rebels TDP MLAs Deep Kapoor and Raj Sharma resigned from the Assembly,

Written submission for the AppellantPage 8

but later alleged that their resignation letters were obtained by duress and that they had been
forced to sign it during a dinner at the CM’s residence. Two days later, Rai Prasad dropped four
senior ministers. Two weeks later, another minister, Radhakrishnan, resigned after accusing Rai
Prasad of being “inefficient”. By then, Rai Prasad had already developed a strained relationship
with Governor J P Pandey and almost half his MLAs were against him.

6. On 9th December, 2015 a group of rebel TDP MLAs approached the Governor J P Pandey
seeking the impeachment of Mr N. Yadav, the speaker of the legislative assembly. The rebel
MLAs were upset with Mr. Yadav, who was a cousin of Chief Minister Rai Prasad and was seen
as key member of his camp. The rebel MLAs also reportedly said that the speaker was trying to
get them disqualified from the Assembly. Though the Assembly was not in session, the Governor
agreed that it was an urgent matter. The Governor by a notification dated 9th December, 2015,
called for an emergency session of the Assembly on 16th December, 2015, to take up the
impeachment motion even though the Assembly was originally slated to convene on 14th
January, 2016.

7. On 16th December 2015 a Special Session was called upon by the Governor for the
impeachment of the Speaker. The Session was held in a community hall as the Government
(excluding rebels, TRP members and independent candidates) and the Speaker prevented the
Session from being held in the Assembly. This session was presided over by the Deputy Speaker
Mr. V.K. Punia who was believed to be on the anti-CM side. The Session was attended by 20
MLAs of TDP, 11 MLAs TRP and 2 independent MLAs. The rebels i.e. 20 with 13 others
passed the impeachment motion. The Special Session also made a no- confidence motion against
the C.M. Rai Prasad.

8. At the end of the Special Session, C.M. was defeated in a floor test and the “House” elected
Prem Chand as the new leader of the House. The Speaker Mr. N. Yadav in reciprocation issued
an order disqualifying 14 rebel TDP MLAs. On 17th December, 2015, the Speaker moved to the
High Court of Tarunachal Pradesh under Article 226 challenging the constitutional validity of
the notification issued by the Governor on 9th December, 2015 and also the ousting of the C.M.
and election of a dissident MLA as his successor. Another writ petition was filed by one of the
MLA Dinesh Singh and others to set aside the order of the Speaker disqualifying the
membership of 14 MLA.

Written submission for the AppellantPage 9

9. Hon’ble High Court, while coming down heavily on the Governor’s December 9 notification
advancing the winter Session of the State Assembly by a month despite protests from the
government, said prima facie it appeared to be in violation of Articles 174 and 175 of the
Constitution dealing with convening of the Session by the Governor and his message to the
House. Issuing notice, Hon’ble Justice, kept in abeyance the impugned decisions, including the
notification issued by the Deputy Speaker and the holding of the “Session” at a new place and
the decision taken at the “Session” to “remove” the Speaker. The Court, hearing the writ petition
of MLA, set aside the order of Speaker in which he had disqualified the membership of 14
MLAs.

10. The Speaker thereafter moved Supreme Court alleging that he had filed an interim
application on the judicial side by seeking recusal of Justice A.B. Sharma from hearing his plea
in the High Court. He alleged that the Acting Chief Justice, “has erroneously rejected the
Petitioner’s recusal application” which should have been decided by Justice A.B. Sharma whose
recusal was sought. The Speaker asked in his plea “Whether the Acting Chief Justice of
Tarunachal Pradesh High Court committed an error by taking unto himself the Recusal
Application, which ought to have been listed for hearing before Justice A.B. Sharma.”

11. Having been aggrieved by the orders of High Court of Tarunachal Pradesh all the parties to
the litigation approached the Supreme Court. The Supreme Court thereafter referred to a
Constitution Bench. Given the fact that the matters involved constitutional provisions on the
rights of the governor, the speaker and the deputy speaker and hence needed to be decided by a
larger bench.

12. While the matter as aforesaid was sub judice in the Supreme Court the Governor sent a report
to the Union Cabinet seeking the imposition of the President’s Rule on account of political
instability in the State. The TDP, however, moved to the Supreme Court challenging the Union
Cabinet’s move to recommend the President’s Rule in Tarunachal Pradesh and the Governor’s
report whereof the decision was made.

13. The President of Indiana later on signed a Proclamation under Article 356 (1) of the
Constitution, imposing President's Rule in the State of Tarunachal Pradesh thereby keeping the
Legislative Assembly of the State in suspended animation. This was done following the report of

Written submission for the AppellantPage 10

the Governor seeking imposition of President Rule in the State even though the matter was sub
judice in the Supreme Court regarding the constitutional validity of the recommendation of
President Rule by the Union Cabinet on Governor’s report among other pertinent matters. In this
regard, the Minister of State for Home stated that the cabinet was forced to take the decision
because of a Constitutional breakdown as six months had lapsed between two sessions of the
State Assembly.

Written submission for the AppellantPage 11

 SUMMARY OF PLEADINGS

I. GOVERNOR HAS NO POWER TO CONVENE THE ASSEMBLY

SESSION WITHOUT THE AID AND ADVICE OF THE GOVERNMENT
It is true that the Indian constitution providesprivileges to the governor of a state
but it does no mean that he does not have the power to decide on a matter that
should be made in consultation with the legislative assembly. Which in here he
had failed to do so by violating the rule not to convene the assembly without the
aid and advice of the government so concerned.

II. PRESIDENT’S RULE IN THE STATE COULD NOT BE IMPOSED

DESPITE ONGOING LITIGATION BEFORE THE CONSTITUTION
BENCH

Presidents rule can be imposed only in extreme conditions where the state cannot
be functioned in accordance with the constitution of India. In the matter at hand a
controversial recommendation of Presidents rule is in issue before the Apex court
and despite that presidents rule is imposed. Such a move is unconstitutional.

III. GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE

ASSEMBLY DOES NOT AMOUNT TO CONSTITUTIONAL
BREAKDOWN AND THUS CALLS FOR IMPOSITION OF
PRESIDENT’S RULE

A mere procedural requirement meant for periodical meeting of the assembly as

provided under Article 174 of the constitution of India purported to be used as a
tool for imposition of Presidents rule. Thus the imposition of presidents rule using
Article 174 as a valid reason is invalid.

Written submission for the AppellantPage 12

 ARGUMENTS ADVANCED

1. THE GOVERNOR HAS NO POWER TO CONVENE THE ASSEMBLY SESSION

WITHOUT THE AID AND ADVICE OF THE GOVERNMENT?

The governor of a state is top most executive authority of that particular state and he holds the
executive power. According to Article 153 , There shall be a governor for each state.

The Governor is not a guide or mentor to the Speaker. The Governor cannot likewise interfere in
the activities of the Assembly, for the reason that the Chief Minister, or the entire Council of
Ministers, or an individual Minister in the Cabinet, or for that matter even an individual MLA,
are not functioning in consonance with the provisions of the Constitution, or in the best interest
of the State. The State Legislature, does not function under the Governor. In sum and substance,
the Governor just cannot act as the Ombudsman of the State Legislature. 1

In view of the above, we have no hesitation in concluding, that the messages addressed by the
Governor to the Assembly, must abide by the mandate contained in Article 163(1), namely, that
the same can only be addressed to the State Legislature, on the aid and advice of the Council of
Ministers with the Chief Minister as the head. Therefore beyond the constitutional authority
vested with the Governor. 2

Governor's power is not intended to destabilise or displace a democratically elected government

accountable to the legislative assembly and collectively responsible to it.

The governor having no power of his own to convene an assembly session without the aid and
advice of the government so concerned because of he being an appointee of the president and he
does not represent either a political ideology or a political view. The Governor is expected to
discharge the role of a constitutional statesman. The authority of the Governor is not one to be
exercised in aid of a political dispensation which considers an elected government of the day to
be a political opponent.3

1
W.P. No.7577 of 2020
2
ibid
3
Durga Das Basu, Introduction to the Constitution of India, page no 251 ,24thedn 2019

Written submission for the AppellantPage 13

 The precise reason underlying the entrustment of the authority to the Governor is the ability to
stand above political conflicts and with the experience of statesmanship, to wheel the authority in
a manner which sub-serves and does not detract from the strength and resilience of
democratically elected legislatures and the governments in the states who are accountable to
them.4

To act contrary to this mandate would result in the realisation of the worst fears of the
constitutional framers who were cognisant that the office of the Governor could potentially derail
democratically elected governments but nonetheless placed trust in future generations to ensure
that government of the people, by the people and for the people would not be denuded by those
who were designed to act as its sentinels.5

The bias created by the legislators who were against the chief minister and ruling government
has made the governor to go beyond the boundaries made by the constitution of India. Any
procedure inside the legislative assembly including the procedure for the impeachment and
removal of any member including the speaker or the presiding officer of either house. This being
a matter not to be permitted to continue , because if permitted this would create an insecurity
among the public and create a chaotic situation . Also would destroy the ends of justice. The
democracy is a system where the public believes there exist a transparent lid in between which
can be seen through, the transparency of ruling , the performance made by the rulers and
importantly the laws made by the legislators which is expected to be for the betterment of the
above said public.6

The governor has absolutely acted in violation of the indian constitution, all the above
mentioned facts and circumstances prove the same .

2. PRESIDENT’S RULE IN THE STATE COULD NOT BE IMPOSED DESPITE

ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH

4
ibid
5
(2013) 3 SCC 1
6
(2006) 8 SCC 212

Written submission for the AppellantPage 14

Article 356 provides for the imposition of emergency in case of failure of constitutional
machinery in States. The president may use his powers to impose state emergency.7

Essential elements of Article 356 is that

‘A situation has arisen in which the Government of the State cannot be carried on in accordance
with the constitution.’8
No such compelling situation has arisen whereby the governor is forced to recommend nor there
is an urgency for the President to declare the same.

From the facts of the case it is clear that The TDP moved to the Supreme Court challenging the
Union Cabinet’s move to recommend the President’s Rule in Tarunachal Pradesh and the
Governor’s report whereof the decision was made.9
The recommendation of the Governor of Tarunachal Pradesh for imposition of president’s rule
has come in the midst of an ongoing litigation before the Hon’blesupreme court of India
regarding the constitutionality of the recommendation.

H. M. Seervai pointed out that the Governor can be removed only by the President and that the
President acts on the advice of the Council of Ministers; hence the Governor is in office pretty
much at the pleasure of the Union Executive and that this may act as a bias whenever the
Governor’s duty requires him to go against the desires of the Union Executive.10

In the matter at hand the governor flouted the constitutional machinery of Apex court to act
according to the whims and fancies of the Centre.
It is a well settled principle that the Governor should look for alternatives in case of a political
tension in a state.11
In a situation of political breakdown, the Governor should explore all possibilities of having a
Government enjoying majority support in the Assembly. If it is not possible for such a
Government to be installed and if fresh elections can be held without delay, the report

7
Nabamrebia v. deputy speaker, 2016 SCC 8
8
PM Bakshi , Constitutional law , page 321,21st edn.2019
9
Para 12 of moot proposition
10
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, vol. 3, 3103 ( 4th edn. 1996)
11
State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361

Written submission for the AppellantPage 15

 recommends that the Governor request the outgoing Ministry to continue as a caretaker
government, provided the Ministry was defeated solely on a major policy issue, unconnected
with any allegations of maladministration or corruption and agrees to continue.12

The president in the present case abused his authority to an extend where he is not ready to wait
for the Apex court to decide upon the Governor’s recommendation of imposition of presidents
rule. It is evident from the facts and the reasoning made that imposition of presidents rule is
unconstitutional.
Article 355 states: ‘It shall be the duty of the Union to protect every State against external
aggression and internal disturbance and to ensure that the government of every State is carried on
in accordance with the provisions of this Constitution. 13 It shall not be used detrimental to the
interest of a functioning state nor be used in each and every circumstances.14

3. GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE ASSEMBLY

DOES NOT AMOUNT TO CONSTITUTIONAL BREAKDOWN AND THUS CALLS
FOR IMPOSITION OF PRESIDENT’S RULE

12
THE SARKARIA COMMISSION REPORT, ¶ 6.3.23 (1987)
13
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (5th edn. 1990)
14
S R Bommai V. Union Of India 1994 SCC (3) 1

Written submission for the AppellantPage 16

Dr B R Ambedkar while replying to critics of the provision of state emergency in the constituent
assembly said that “the proper thing we ought to expect is that such articles will never be called
into operation and they would remain a dead letter and would be used as a measure of last
resort”.15It is a well settled principle that imposition of presidents rule should not be resorted
unless all other recourses have failed16

It implies that such a provison need to be used sparingly under extreme circumstances and that
provisons like article 174 enabling Governor to dissolve assembly which results in imposition of
presidents rule cannot be resorted to for good governance or cleansing of politics.17
In the matter at hand the Governor of the State of Trunachal Pradesh has used the power which is
to be used sparingly in an arbitrary and fanciful manner.

The National Commission to Review the Working of the Constitution (NCRWC), which was
established on February 22, 2000, on the basis of a joint resolution of the Government of India,
Ministry of Law, Justice and Company Affairs (Department of Legal Affairs), submitted its
extensive report in March 2002. In its analysis, the NCRWC stated that in at least twenty out of
the more than one hundred instances, the invocation of Article 356 might be termed as a misuse18
The said report sheds light upon the arbitrary use of emergency provisions by governors of
respective states.
It is evident from the facts itself that it is one of such cases of misuse of authority by the
Governor of Tarunachal Pradesh.

The words used in Article 356 of the constitution that ‘. . . the government of the State cannot
be carried on in accordance with the provisions of this Constitution . . .’ is vague and that each

15
Constituent Assembly Debats, volume IX ,Pg 133 and 177.
16
S R Bommai V. Union Of India 1994 SCC (3) 1
17
Rameshwar Prasad v. Union of India , AIR 2006 SC 980.
18
National Commission to Review the Working of the Constitution at ¶ 8.16.

Written submission for the AppellantPage 17

and every breach and infraction of constitutional provisions, irrespective of their significance,
extent, and effect, cannot be treated as constituting a failure of the constitutional machinery.19
According to the Commission, Article 356 provides remedies for a situation in which there has
been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse of this
drastic power would damage the democratic fabric of the Constitution. The report discourages a
literal construction of Article 356(1). The Commission, after reviewing suggestions placed
before it by several parties, individuals and organizations, decided that Article 356 should be
used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a
breakdown of constitutional machinery in a State. Before taking recourse to the provisions of
Article 356, all attempts should be made to resolve the crisis at State level20
The core contention is the question of imposition of presidents rule due the gap of six months
between the Assembly session.

This very question was discussed and decided in Re Gujrat Assembly election21.The question
was

“Whethernon- observance of the provisions of Article 174(1) would mean that the
Government of the State cannot be carried in accordance with the provisions of the
Constitution within the meaning of Article 356(1) of the Constitution and the
President would then step in”?

To this the Apex court held that

“that the gratuitous advice of application of Article 356 in its order was in all its sincerity,
although now on our interpretation of Article 174(1), we find that it was misplaced and
that Article 356 cannot be imposed merely because it there was a violation of Article
174(1)”.

19
THE SARKARIA COMMISSION REPORT, ¶ 6.3.23 (1987).
20
ibid
21
In Re special Reference No.1 of 2002, AIR 2003 SC 87

Written submission for the AppellantPage 18

Hence the report of The Governor to declare presidents rule in the state solely because there was
a gap of six months between the two sittings of the assembly and that it thereby violated Article
174 of the constitution of India is unconstitutional and an abuse of authority.

CONCLUSION AND PRAYER

Written submission for the AppellantPage 19

In the light of the issues raised arguments advanced and authorities cited the Appellant humbly
prays that this Hon’ble Supreme court may kindly adjudge and declare that:

I. GOVERNOR HAS NO POWER TO CONVENE THE ASSEMBLY

SESSION WITHOUT THE AID AND ADVICE OF THE GOVERNMENT

II. PRESIDENT’S RULE IN THE STATE COULD NOT BE IMPOSED DESPITE

ONGOING LITIGATION BEFORE THE CONSTITUTION BENCH

III. GAP OF SIX MONTHS BETWEEN TWO SESSIONS OF THE STATE

ASSEMBLY DOES NOT AMOUNT TO CONSTITUTIONAL BREAKDOWN
AND THUS CALLS FOR IMPOSITION OF PRESIDENT’S RULE

And may kindly pass any order that this Hon’blesupreme court may deem fit. And for this act
of kindness the petitioner in duty bound shall for ever pray.

Respectfully submits

Counsel for the appellants

Sd/-

Written submission for the AppellantPage 20