TEAM CODE: 22A

14TH NALSAR JUSTICE B. R. SAWHNY MEMORIAL MOOT

COURT COMPETITION, 2021

BEFORE THE HON’BLE HIGH COURT OF GULMOHAR

IN THE MATTER OF-

MR. GIDUGA STATE OF GULMOHAR

(PETITIONER) V. (RESPONDENT)

CLUBBED WITH

MR. GIDUGA UNION OF SAPOTA

(PETITIONER) V. (RESPONDENT)

MEMORANDUM ON BEHALF OF THE

PETITIONER
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 MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS……………………………………………………… …
II

INDEX OF AUTHORITIES………………………………………………………….....III

STATEMENT OF JURISDICTION……………………………………………………..V

STATEMENT OF FACTS………………………………………………………………VI

STATEMENT OF ISSUES………………………………………………………………
IX

SUMMARY OF ARGUMENTS …………………………………………………………

X

ARGUMENTS ADVANCED……………………………………………………………..1

I. THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI)

ACT, 2021 IS NOT CONSTITUTIONALLY VALID………………………………..1
A. THE RESPONDENTS SEEM TO HAVE MISUNDERSTOOD “HORIZONTAL”
RESERVATION......1
B. GULMOHARI SPEAKERS ARE NOT EVEN A MINORITY IN THE
STATE……………………..3
C. DEFINITION OF NATIVE NOT FAIR………………………………………………………
5
D. UNCONSTITUTIONAL TO RESERVE SEATS OF EMPLOYMENT IN PRIVATE ENTERPRISES…
7
E. NOT A MONEY
BILL…………………………………………………………………...12
F. THE IMPUGNED ACT IS UNCONSTITUTIONAL………………………………….………
14

II. THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC

STRUCTURE OF THE SAPOTA CONSTITUTION.................................................17
A. DOCTRINE OF SEVERABILITY………………………………………………………….17
B. THE AMENDMENT EMASCULATES THE BASIC STRUCTURE OF THE
CONSTITUTION…...18

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 MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

C. VIOLATES THE REPUBLICAN AND DEMOCRATIC FORM OF GOVERNMENT

FEATURE…..20
D. THE DISCRETION OF THE GOVERNOR IS CIRCUMCISED BY THE
LAW…………………..22
E. WIDTH OF
POWER……………………………………………………………………...23

III. THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF

GULMOHAR TO INVITE A POST-POLL ALLIANCE TO FORM THE
GOVERNMENT............................................................................................................23
A. GOVERNOR’S DISCRETIONARY POWERS ARE JUDICIALLY REVIEWABLE
……………..23
B. POST POLL ALLIANCE OF SBP AND PPS IS CONSTITUTIONALLY
VALID…………........26
PRAYER……………………………………………………………………………………XI

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ABBREVIATIONS EXPANSION
¶ PARAGRAPH
AIR ALL INDIA REPORTS
ART. ARTICLE
CONST. CONSTITUTION
GRP GULMOHAR RASHTRA PARTY
OBC OTHER BACKWARD CLASSES
PG. PAGE
PPS PEOPLE’S PARTY OF SAPOTA
PROP. PROPOSITION
SBP SAPOTA BACHAO PARTY
SC SCHEDULED CASTE
SCC SUPREME COURT CASES
SCR SUPREME COURT REPORTS
SDRS SOCIAL DEMOCRATIC REPUBLIC OF SAPOTA
ST SCHEDULED TRIBES
v. VERSUS
vs VERSUS
& AND
TABLE OF ABBREVIATIONS

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MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

SR PAGE
CASE CITATION NO.
.
Ajit Singh and Ors. (II) v. State of Punjab 3
1. (1999) 7 SCC 209
and Ors. (India)
2. Anil Kumar Gupta v. State of U.P.. (India) (1995) 5 SCC 173 1
3. B.R. Kapur v. State of Tamil Nadu AIR 2001 SC 3435 25
Bandhua Mukti Morcha v. Union of India.. 9
4. [1984 SCR (2) 67]
(India)
Board of Trustees of the Port of Bombay v. 10
5. Dilipkumar Raghavendranath Nandkarni.. (1983) 1 SCC 124
(India)
6. Charu Khhurana v. Union of India. (India) 2015 1 SCC 19 8
Clariant International Ltd. And Anr. V. 22
7. (2004) 8 SCC 524
Securities and Exchange Board of India
8. Coker v. Georgia (United States) 433 U.S. 584 (1977) 12
9. Dr Pradeep Jain v. Union of India. (India) 1984 SCR (3) 942 4
Dr. Jaishri Laxmanrao Patil v. The Chief 5, 15
10. 2021 SCC OnLine SC 362
Minister & Anr. (India)
Francis Coralie v. Union Territory of Delhi. 9
11. 1981 SCR (2) 516]
(India)
Ganga Ram & Ors v. Union Of India & Ors. 14
12. 1970 SCR (3) 481
(India)
Hindustan Steel Ltd v. State Of Orissa. 12
13. 1970 SCR (1) 753
(India)
14. I.R Coelho v. State of Tamil Nadu (2007) 2 SCC 1 23
Indira Nehru Gandhi v. Shri Raj Narain & 16
15. 1975 AIR 865
Anr. (India)

16. Indra Sawhney v. Union of India. (India) 1992 Supp (3) SCC 217 1, 2, 3, 4,
5, 14, 15
17. Jagdambika Pal v. State of U.P. RLW 1999 (1) SC 1 26

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 MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

Jarnail Singh & Ors v. Lacchmi Narain 3

18. 2018 SCC Online SC 1641
Gupta & Ors. (India)
Justice K.S. Puttaswamy (Retd.) And Anr. v. 14
19. (2017) 10 SCC 1
Union Of India And Ors.. (India)
20. Kesavnanda Bharti v. State of Kerala. (India) (1973) 4 SCC 225 18, 23
21. Keshav Singh v. AIR 1965 All 349 25
22. L. Chandra Kumar v. Union of India (India) 1995) 1 SCC 400 16
M. R. Balaji And Ors. v. State Of Mysore. 1, 14
23. 1962 SCR Supl. (1) 439
(India)
M. Nagaraj & Ors. v. Union Of India & Ors. 3, 23
24. (2006) 8 SCC 212
(India)
M/S A.K Automatics v. The Principal CWP No.21282 of 2020 9
25.
Secretary And Anr. (India) (O&M)
26. Maneka Gandhi v. Union of India. (India) 1978 SCR (2) 621 9
27. Manish Kumar v. Union Of India. (India) 2021 SCC OnLine SC 30 14
28. Mukesh Kumar vs State of Uthrakhand (2020) 3 SCC 1 3
Nabam Rebia & Anr. v. Deputy Speaker, 24, 26
29. (2017) 13 SCC 332
Arunachal Pradesh Legislative Assembly
Olga Tellis v. Bombay Municipal 10
30. AIR 1986 SC 180
Corporation
Raja Ram Pal v. The Honble Speaker, Lok 14
31. (2007) 3 SCC 184
Sabha & Ors. (India)
Rajesh Kumar Daria v. Rajasthan Public 5
32. (2007) 8 SCC 785
Service Commission
Ramdas Athawale v. Union Of India & Ors. 14
33. 2010 (4) SCC 1
(India)

34. Rameshwar Prasad v. Union of India. (India) (2006) 2 SCC 1 19, 25,
26, 27
35. S.R. Bommai v. Union of India. (India) (1994) 3 SCC 1 20, 21,
26
Saurav Yadav and Ors. v. State of Uttar 2020 SCC OnLine SC 1
36.
Pradesh and Ors. (India) 1034
Skinner v. Oklahoma ex rel. Williamson. 16
37. 316 U.S. 535 (1942)
(United States)

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Special Ref. No. 1 of 1964 Dt. 30-9-1964. 13

38. AIR 1965 SC 745
(India)
39. Sunil Batra v. Delhi Administration. (India) AIR 1978 SC 1675 9
The State of Gujarat And Anr v. Shri Ambica 1974 AIR 1300, 1974 SCR 16
40.
Mills Ltd. (India) (3) 760
Triloki Nath Tiku and Anr v. State of Jammu 1967 AIR 1283, 1967 SCR 16
41.
and Kashmir. (India) (2) 265
Vinita Nair v. Registrar, University of 2014 SCC OnLine 6713 1
42.
Rajasthan. (India)

PAGE
STATUTES NO.
The Constitution of India, 1950. 1

PAGE
BOOKS NO.
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, WADHWA, 5TH ED. (2003), P. 1315
12
V.N. SHUKLA, CONSTITUTION OF INDIA, 131 (M.P. Singh, 13th ed., 2017). 20

PAGE
ONLINE SOURCES NO.
THELAW.COM LAW DICTIONARY & BLACK'S LAW DICTIONARY 2ND ED,
Native, Thelaw.com Dictionary, (Sept. 02, 2021 3:12 PM) 6
https://dictionary.thelaw.com/native/
Definition of NATIVE, Merriam-webster.com.,
6
https://www.merriam-webster.com/dictionary/native
United Nations, Universal Declaration of Human Rights | United Nations, United
10
Nations, https://www.un.org/en/about-us/universal-declaration-of-human-rights
OHCHR | International Covenant on Economic, Social and Cultural Rights,
11
Ohchr.org, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
Constitution of India, Constitutionofindia.net,
14
https://www.Constitutionofindia.net/constituent_assembly_members/b__r__ambedkr
Report of Sarkaria Commission, Chapter IV. Role of the Governor, 20

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interstatecouncil.nic.in,
http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERIV.pdf

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MEMORANDUM for PETITIONER [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The petitioners have approached this Hon’ble High Court of Gulmohar, under Article 226
of the Constitution of Sapota.

The present memorial on behalf of the petitioner sets forth the facts, contentions and
arguments in the present case.

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MEMORANDUM for PETITIONER [STATEMENT OF FACTS]

STATEMENT OF FACTS

BACKGROUND
The Social Democratic Republic of Sapota is a Union of States which gained its
independence from colonial rule at the same time as India. SDRS framed its own Constitution
a few years after India and adopted large parts of the Indian Constitution for its own
purposes. SDRS, like India, was formed out of provinces ruled by the British, adopted a
Westminster Parliamentary form of Government and its legal system is based largely on the
common law.

THE CONTROVERSIAL BILL

The State of Gulmohar is one of the richest states in Sapota enjoying both a high ranking in
the Human Development Index and a high per capita GSDP. A majority of the residents of
Gulmohar (65% as of the last census) consider the official language of the state, Gulmohari -
a classical language with a long history and present in the Eighth Schedule of the
Constitution - as their first language. Gulmohari is largely spoken only in Gulmohar though it
must be mentioned that as per census data, the percentage of native Gulmohari speakers has
fallen from nearly 95% in 1971 to 65% as of 2021.

As of 2021, the Chief Minister of Gulmohar, Ms Azhilu, leads the Gulmohar Rashtra Party
(GRP) which has 174 seats in the Gulmohar Legislative Assembly out of a total of 300. In
May 2021, civil society organizations in Gulmohar came together to hold the largest
demonstration ever seen in the history of the state, in the capital city of Aura to demand that
the Government of Gulmohar save the Gulmohari language and Gulmohari speaking people
from “being swamped by outsiders”. To this end, the organizations submitted a list of
demands to the Chief Minister, the most prominent being that sixty-five percent of all
government and private sector jobs in the State should be “reserved” for Gulmohari speaking
people. Ms Azhilu stated in public that this demand is acceptable to her, and she would
introduce a Bill to this effect in the State Assembly.

The most vocal opponent of this move was Mr Giduga, a cabinet minister. In June 2021 a
draft bill was prepared and placed by the CM before the Cabinet. Mr Giduga and two other
Ministers tendered their resignations to the Governor protesting that the Bill was
unconstitutional and xenophobic.

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A three-line whip had been issued by the GRP to its members to vote in favour of the Bill,
but Mr Giduga and 30 members voted against it in an effort to defeat it. However, their votes
were automatically invalidated because of the whip and the 31 members were disqualified as
MLAs. The Bill, however, passed with a margin of 143 to 125 (the Speaker not being
permitted to vote) and was signed into law by the Governor thereafter.

PETITION BEFORE THE HON’BLE HIGH COURT

As soon as the Bill came into force, it was challenged in the High Court of Gulmohar by Mr
Giduga, who himself was not a “native Gulmohari” for the purposes of the law, on the ground
that it was against the Constitution of Sapota, specifically in the context of the requirement
for private enterprises to give preference to native Gulmoharis in employment.

Meanwhile Ms Azhilu resigned and asked for fresh elections to be called, seeking a fresh
mandate from the people of Gulmohar. Following the announcement of fresh elections, Mr
Giduga and the other disqualified members formed the Sapota Bachao Party (SBP) breaking
away from GRP and attracting other members of opposition parties as well. Elections were
held in the month of August, and to the shock of everyone concerned, GRP did not win a
majority (as opinion polls had predicted). The results were as follows: a. GRP - 132 seats b.
SBP - 120 seats c. People’s Party of Sapota (PPS) - 38 seats d. Independents - 10

Within 24 hours of the results being declared, Ms Azhilu was designated leader of the GRP,
Mr Giduga the leader of the SBP and Mr Ka’age, the leader of PPS. Since no party had gone
past the half-way mark, Ms Azhilu met the Governor of Gulmohar, Ms Bulbul with the
expectation of being invited to form the government and prove her majority.

However, Ms Bulbul stated that she would rather wait for more developments on this front,
given that she has forty-eight hours to invite her to form the Government. However, even as
she was meeting Ms Bulbul, Mr Ka’age, leader of the PPS went over to the house of Mr
Giduga, resentful at being taken for granted by the GRP, whom he expected to seek his
support before going to the Governor. At Mr Giduga’s house, the two leaders announced that
they have formed a post-poll alliance and having the numbers, would approach the Governor
to form the Government.

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After she received the letters from Mr Giduga and Mr Ka’age, the Governor of Gulmohar,
Ms Bulbul said that she would consult legal and Constitutional experts before inviting either
party to form the Government. Just before the completion of the forty-eight-hour deadline,
Ms Bulbul announced that she would invite Ms Azhilu to form the Government, since the
text of the Constitution was clear and a “post-poll alliance” was not envisaged under it. Mr
Giduga once again rushed to the High Court of Gulmohar, challenging the 2020 amendment
to the Constitution which dictated how the Governor would invite legislative party leaders to
form the Government, asking for a stay on the swearing in of Ms Azhilu and that Governor
Bulbul be directed to swear him in instead.

The Hon’ble High Court agreed to hear both the petitions filed by Mr Giduga.

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MEMORANDUM for PETITIONER [STATEMENT OF ISSUES]

STATEMENT OF ISSUES

ISSUE 1
WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI) ACT, 2021 IS
CONSTITUTIONALLY VALID?

ISSUE 2
WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC STRUCTURE
OF THE SAPOTA CONSTITUTION?

ISSUE 3
WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF GULMOHAR TO INVITE
A POST-POLL ALLIANCE TO FORM THE GOVERNMENT?

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MEMORANDUM for PETITIONER [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

I. THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI) ACT, 2021

IS NOT CONSTITUTIONALLY VALID
The Gulmohar (Promotion and Protection of Gulmohari) Act, 2021 is unconstitutional for
many reasons as enlisted in the advanced arguments. The Respondents have erred by taking
the total tally of reservations in the state above 50% under the guise of “Horizontal
Reservation”. The said reservation has been provided to a community that is actually a
majority in the State as per a recent Census, which in itself goes against the concept of
reservation which is meant for backward classes and minorities that aren’t adequately
represented in the state. Moreover, they have gone ahead to define “Native Gulmohari” in the
act to not even include someone born in the state, who in the true sense would be a native of
the place. Reservation of seats of employment in private enterprises goes against the general
freedom to carry on business or trade in the country. They introduced the first draft of the Act
in the assembly as a Money bill, which is not correct as it does not include any of the matters
named under Article 199(1) of the Constitution. To add on to all these reasons, the Act is also
in violation of the Fundamental rights of the general public and citizens of Sapota living in
that state. Therefore, the Act must be repealed under Article 13(2) of the Constitution.

II. THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC

STRUCTURE OF THE SAPOTA CONSTITUTION
It is humbly submitted before this Hon’ble Court that the 2020 amendment which dictates
that how the Governor would invite the legislative party leaders to form the government
violates the basic structure of the Constitution on the grounds that A). The amendment
emasculates the basic structure of Constitution, B). Violates the republican and democratic
form of government. C). The discretion of the Governor is circumcised by law. D). Width of
power. The amendment violates the basic feature of democratic and republican form of
government by specifically not mentioning “post-poll alliance” in its text.

III. THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF GULMOHAR TO
INVITE A POST-POLL ALLIANCE TO FORM THE GOVERNMENT
Yes, the High Court can legally direct the Governor of Gulmohar to invite a post-poll alliance
to form the Government. The act of hon’ble governor of Gulmohar to invite Ms Azhilu to
form government is judicially reviewable.

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MEMORANDUM for PETITIONER
[ARGUMENTS]
ARGUMENTS ADVANCED

I. THE GULMOHAR (PROMOTION AND PROTECTION OF GULMOHARI) ACT, 2021

IS NOT CONSTITUTIONALLY VALID

The Gulmohar (Promotion and Protection of Gulmohari) Act, 2021 (“impugned Act”) as the
name suggests, is a provision to protect and promote the native Gulmohari speakers in
Gulmohar at the cost of all the other residents. 1 A 65% reservation in itself is unconstitutional
as highlighted by the Supreme Court in the Indra Swahney Judgement in 19922. The bench
relied on the judgement in Balaji v. State of Mysore3 [1962] to prove that the aim of
reservation policies under Articles 15(4) and 16(4)4 is to achieve equality, which would
include equal opportunities to the general classes as well. Therefore, the Court concluded that
equality demanded that at least 50% of seats in education and public employment remain
unreserved.5

A. THE RESPONDENTS SEEM TO HAVE MISUNDERSTOOD “HORIZONTAL”

RESERVATION

The word "horizontal reservation" is a creation of judicial articulation, as it is not specified in

any legislation, however the idea been articulated in several case-laws. Vinita Nair v.
Registrar, University of Rajasthan6, Rajesh Kumar Daria v. Rajasthan Public Service
Commission7, Indra Sawhney v. Union of India8 [hereinafter, Indra Sawhney, Anil Kumar
Gupta v. State of U.P.9 and Saurav Yadav and Others v. State of Uttar Pradesh and Others 10
to name a few.

The Indra Sawhney judgement explained:

“There are two types of reservations, which may, for the sake of convenience,
be referred to as 'vertical reservations' and 'horizontal reservations'. The

1
Moot Prop. “II. The Controversial Bill”
2
1992 Supp (3) SCC 217
3
1963 AIR 649, 1962 SCR Supl. (1) 439
4
India Const. Art. 15(4), Art. 16(4)
5
Supra 2
6
2014 SCC OnLine Raj 6713
7
(2007) 8 SCC 785
8
Supra 2
9
(1995) 5 SCC 173
10
2020 SCC Online SC 1034

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[ARGUMENTS]

reservations in favour of Scheduled Castes, Scheduled Tribes and other

backward classes [under Article 16(4)] may be called vertical reservations
whereas reservations in favour of physically handicapped [under Clause (1) of
Article 16] can be referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations that is called inter-locking
reservations.”11

In simpler words, vertical reservation includes the Constitutionally mandated reservation for
Scheduled Castes, Scheduled Tribes, and Other Backward Classes. It applies separately for
each of the groups specified under the law. Horizontal reservation on the other hand are
opportunities provided to the sub categories of beneficiaries such as women, veterans, the
transgender community and individuals with disability which cut through the vertical
categories.

In general, Horizontal Reservation refers to Article 16 (1) of the Constitution, which states
that “all citizens should have equal opportunity in issues related to employment or
appointment to any position under the State.”12 Thus, Horizontal Reservation is a way of
ensuring equality and effectively provisioning of work and education for the needy ones. On
the other hand, vertical reservation is reservation under Article 15 (4) of the Constitution in
favour of socially backward classes that are not adequately represented.13 

It is pertinent to note that Horizontal Reservation as defined in the above provisions of law
does not include ‘language spoken’ as a ground for reservation. This is mostly because that
reservation in itself would be discriminatory under Article 16(2) which provides for Equality
of opportunity in matters of public employment.14

To compare that definition with the present scenario would be obscure as there is no statutory
provision for reservation of jobs for a certain class of people for the sole purpose of
protecting the locally spoken language. However, there being no provision in in law to
provide such reservation itself should qualify as a dignified reason for this entire impugned

11
Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]
12
India Const. Art. 16
13
India Const. Art. 15
14
Supra 12

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[ARGUMENTS]

Act to be declared ultra vires of the Constitution.

B. GULMOHARI SPEAKERS ARE NOT EVEN A MINORITY IN THE STATE

Ms. Azhilu the then CM has created this bill without carrying out any form of research on
whether the community really needs representation simply as a quick response to ransom
demanded by protestors in large numbers. The protest was held in May 2021, and the draft
bill was already ready in June 2021.15 This not only creates doubt as to the research behind
the bill, but also raises questions about Ms. Azhilu’s involvement with the protestors to be a
failed political attempt to try and gain votes of the so called ‘Native Gulmoharis’.

The same has been reiterated in the Apex Court judgement of Mukesh Kumar vs State of
Uttarakhand:

“It is abundantly clear from the judgments of this Court in Indra Sawhney16,
Ajit Singh (II)17, M. Nagaraj18 and Jarnail Singh19 that Article 16 (4) and 16
(4-A) are enabling provisions and the collection of quantifiable data showing
inadequacy of representation of Scheduled Castes and Scheduled Tribes in
public service is a sine qua non for providing reservations in promotions.” 20

The only bit of relevant data mentioned is the census data stating that “the percentage of
native Gulmohari speakers has fallen from nearly 95% in 1971 to 65% as of 2021.” 21 Which
in itself is an extremely broad comparison 50 years apart in the time of globalisation where
English is growing to become the native language of the world for ease of international
communications. It is also pertinent to note that the definition of ‘Native Gulmohari’ in this
census data has not been provided.

There is no relevant data to prove that the Gulmohari’s are a backward class in the state and
require government aid in being represented, and without a study providing exceptional

15
Moot Prop. ¶ 10-13.
16
Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]
17
Ajit Singh and others (II) v. State of Punjab and others [(1999) 7 SCC 209]
18
M.Nagaraj & Others vs Union Of India & Others [(2006) 8 SCC 212: AIR 2007 SC 71]
19
Jarnail Singh & Ors vs. Lacchmi Narain Gupta & Ors [2018 SCC Online SC 1641]
20
(2020) 3 SCC 1
21
Moot Prop ¶ 8.

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reasoning for special provisions for a sect the State government has no right to set
reservations. The same has been highlighted in the Indra Sawhney Judgement (Supra):

“It is in very exceptional situations, and not for all and sundry reasons - that any
further reservations, of whatever kind, should be provided under Clause (1). In
such cases, the State has to satisfy, if called upon, that making such a provision
was necessary (in public interest) to redress a specific situation. The very
presence of Clause (4) should act as a damper upon the propensity to create
further classes deserving special treatment. The reason for saying so is very
simply. If reservations are made both under Clause (4) as well as under Clause
(1), the vacancies available for free competition as well as reserved categories
would be correspondingly whittled down and that is not a reasonable thing to
do.”22

“Unless 'caste' satisfies the primary test of social backwardness as well as the
educational and economic backwardness which are the established and accepted
criteria to identify the 'backward class' a caste per se without satisfying the
agreed formulae generally cannot fall within the meaning of 'backward class of
citizens' under Article 16(4)”23

Despite the relatively significant reduction in the percentage of ‘native Gulmohari’ speakers,
65% is still a majority number24, hence directly disqualifying them from the need to be
represented in the state. One wouldn’t be wrong even in going as far as stating that the
Gulmohri speakers in fact are a majority in Gulmohar. Sapota is a country unified by the
states in it.25 If every state reserves 65% of the jobs available to the natives, there would be no
benefit of being part of a larger territory and the states being conjoined as parts of the
territory.

In Dr Pradeep Jain v. Union of India, 1984, the top Court dealt specifically with the issue of
domicile-based reservation, noting that to regard an individual from one state as an outsider
22
Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]
23
Supra 22
24
Moot Prop ¶ 8.
25
The Constitution of India, 1950, Preamble

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[ARGUMENTS]

in another state “would be to deny him his Constitutional rights and to derecognise the
essential unity and integrity of the country by treating it as if it were a mere conglomeration
of independent States.”26

Ms. Azhulia seems to have picked 65% simply at the protestors demand 27 who seem to have
based their demand on the census result28. This proportional reservation however must be
deemed unconstitutional as the representation is supposed to be adequate not proportionate as
highlighted in the Indra Sawhney Judgement29 and reiterated in the Maratha Quota
Judgement:
“We must, however, point out that Clause (4) speaks of adequate representation
and not proportionate representation. Adequate representation cannot be read as
proportionate representation.” 30

Yes, preservation of language spoken is a fundamental right of the citizens under Article 29
of the Constitution “Protection of interests of minorities”31. However, the said is a right
granted to the citizen to conserve the language by themselves. There is no provision in the
directive principles or in any other part of the Constitution directing the government to
interfere in the said matter to take steps in conserving the language. Ms. Azhilu has beyond
her limits to protect the Gulmohari language, which may be appreciated by the so-called
natives of Gulmohar but is a clear abuse of her power as Chief Minister of the State.

C. DEFINITION OF NATIVE NOT FAIR

Under Section 2(1)(g) of the impugned Act, ‘A Native Gulmohari has been defined as:
“native Gulmohari” shall mean any person who meets any one of the following
criteria:
1. Has completed at least ten years of education in an institution where the
medium of instruction is in the Gulmohari language; or
2. One of whose parents was born in the State; or

26
1984 AIR 1420, 1984 SCR (3) 942
27
Moot Prop. ¶10.
28
Moot Prop ¶ 8.
29
Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]
30
Dr. Jaishri Laxmanrao Patil Versus The Chief Minister & Anr., 2021 SCC Online SC 362
31
India Const. Art. 29

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3. Both of whom parent have completed at least ten years of education each
in an institution where the medium of instruction is in the Gulmohari
language”32

On the contrary, the definition of native in the Black’s Law Dictionary 2nd Edition is:
“A natural-born subject or citizen; a denizen by birth; one who owes his domicile
or citizenship to the fact of his birth within the country referred to. The term may
also include one born abroad if his parents were then citizens of the country and
not permanently residing in foreign parts.”33

The Merriam Webster dictionary makes the definition even simpler – “belonging to a
particular place by birth”34

On plain perusal of the definitions above, grave misconstruction is evident on the part of the
drafters of the act in failing to include persons born within the bounds of Gulmohar as native
Gulmohari.

Part (2) of the definition in the impugned act seems correct and in line with the general
interpretation of the term, however reserving jobs for someone for that sole reason is not fair
on any account. What Ms. Azhilu failed to consider is that the children of the persons born in
Gulmohar might not speak Gulmohari. What is also possible is that even the parent born in
the state may not speak the language, as non-native families have been coming to and settling
in Gulmohar for decades35.

The impugned Act also fails to include all the other people who may be well conversant in
Gulmohari due to living in the state for all these years36, without having been through the 10
years of education in Gulmohari37. It is evident from the shoddy drafting that the drafting
committees have failed to conduct appropriate research in the haste that they prepared the

32
Annexure B of Moot Prop
33
Thelaw.com Law Dictionary & Black's Law Dictionary 2nd Ed, Native, Thelaw.Com Law
Dictionary, https://dictionary.thelaw.com/native/
34
Definition of NATIVE, Merriam-webster.com.,
https://www.merriam-webster.com/dictionary/native
35
Moot Prop ¶12.
36
Supra 35
37
Moot Prop. ¶10 & ¶13

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Bill. The act fails to protect the language that Ms. Azhilu promised to the Civil Society
Organisations.38 At this point there is no explanation for this Act not to be repealed.

The above definition (Section 2(1)(g)) along with section 3 of the impugned Act:
“Section 3. Reservations in Government jobs. - Notwithstanding anything
contained in any law in force, there shall be horizontal compartmentalised
reservation of sixty five percent in appointments being made to any civil post
under the State of Gulmohar in favour of native Gulmoharis.”39

is discriminatory under Article 16(2) of the Constitution which provides that no one must be
discriminated against on the grounds of ‘place of birth’.40

D. UNCONSTITUTIONAL TO RESERVE SEATS OF EMPLOYMENT IN PRIVATE

ENTERPRISES

Section 47 of the impugned Act, reproduced below, is in itself unconstitutional for

demanding reservation for the so-called ‘native Gulmohari’ people in private enterprises. The
law violates fundamental rights that are guaranteed under Part III of the Constitution and
include the right to equality, the right against discrimination in employment and the right to
carry on any business or trade.41

“Section 47. Penalty for under-representation of Gulmoharis. – Notwithstanding

anything contained in any law, any industry, office, business or shop which has
less than sixty-five per cent of its employees being native Gulmoharis in the
previous calendar year, shall be liable to pay a fine of one per cent of its turnover
for everyone per cent less than the required sixty-five per cent.”42

This section is directly in contravention of Article 19(1)(g) of the Constitution which

provides citizens the fundamental right “to practise any profession, or to carry on any
occupation, trade or business”.43 This fundamental right includes the right to hire qualified

38
Moot Prop. ¶11
39
Moot Prop. Annexure II
40
India Const. Art. 16(2)
41
India Const. Art. 15, Art. 16, Art. 19
42
Supra 39
43
India Const. Art. 19(1)(g)

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employees by choice to help run the said business or profession. At the same time the general
public also has the right to carry on any profession or occupation without any restrictions on
being employed. When 65% of the jobs are horizontally reserved for one class of people in
all fields of employment, it becomes impossible for the general public to find employment.

Article 41 in the Directive Principles of State Policy directs that the state shall make effective
provisions for securing the right to work in cases of unemployment. 44 The state in the present
case in the hands of Ms. Azhilu has done exactly the opposite of this directive principle
through this impugned Act, by attempting to take away the existing open work. Ms. Azhilu
has abused her power to reserve the majority of jobs in an open job market for a class of
people who are a majority in the area45 and more importantly whose qualifications for the
specified jobs have not been checked while the reservation is to apply to companies in every
available industry and field.46

Article 39(a) provides that “the state shall direct its policy towards securing that the citizens,
men and women equally, have the right to an adequate means of livelihood” and article 39(c)
directs that they ensure that “the economic system does not result in the concentration of
wealth”.47 However, the impugned Act will work to displace a majority of the population
already presently in employment, as the employers are going to have to let go of the present
workers in huge numbers to comply with the provisions 48 of said Act. Over the long term this
will cause a concentration in wealth in one class of society that is the ‘native Gulmohari’
community as they will be the ones occupying most jobs while the rest of the public struggle
to qualify for the left over 45%.

In 2014, the Supreme Court in Charu Khhurana vs. Union of India held that curbing access to
employment on the basis of domicile had no rationale and is violative of citizens’
Constitutional rights. The Court said this “invites the frown of Articles 14, 15 and 21 of the
Constitution of India”.49

44
India Const. Art . 41
45
Moot Prop ¶ 8.
46
Moot Prop ¶ 14.
47
INDIA CONST. Art. 39
48
Supra 46
49
WP (C) No.78 of 2013 Decided on 10 Nov 2014

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Articles 14 (right to equality) and 15 (right not to be discriminated against on the basis of,
among other things, place of birth) of the Constitution 50 protect the rights of all citizens to
move anywhere in the nation freely.51 While the latter sub-clauses of Article 15 enable the
state to make provisions for advancement of the socially and educationally backward classes
of citizens or for the scheduled castes or scheduled tribes, Article 15(5) makes it abundantly
clear that the same is only available to the state to provide “special provisions relating to
their admission in educational institutions including private educational institutions” not in
private businesses.52

Article 21 of the Constitution includes the fundamental right to “Protection of Life and
Personal Liberty” which over time and through many case laws has come to include the
“right to protect all that gives meaning to a man’s life” 53, “the right to live with human
dignity”54, “the bare necessities of life such as adequate nutrition, clothing and shelter over
the head and facilities for reading writing and expressing oneself in diverse forms, freely
moving about and mixing and mingling with fellow human beings and must include the right
to basic necessities the basic necessities of life and also the right to carry on functions and
activities”55. Additionally, Justice Bhagwati in 1984 held that:

“It is the fundamental right of everyone in this country… to live with human
dignity free from exploitation. This right to live with human dignity enshrined in
Article 21 derives its life breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the
least, therefore, it must include protection of the health and strength of workers,
men and women…”56

“These are the minimum requirements which must exist in order to enable a
person to live with human dignity and no State neither the Central Government

50
India Const. Art. 14, Art. 15
51
As argued by Senior Supreme Court advocate Colin Gonsalves in M/S A.K Automatics vs
The Principal Secretary And Anr [CWP No.21282 of 2020 (O&M)] before the Punjab and
Haryana High Court
52
India Const. Art. 15(5)
53
Sunil Batra v. Delhi Administration [AIR 1978 SC 1675]
54
Maneka Gandhi v. Union of India [1978 AIR 597, 1978 SCR (2) 621]
55
Francis Coralie v. Union Territory of Delhi [1981 AIR 746, 1981 SCR (2) 516]
56
Bandhua Mukti Morcha v. Union of India [1984 AIR 802, 1984 SCR (2) 67]

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nor any State Government-has the right to take any action which will deprive a
person of the enjoyment of these basic essentials.”57

The Court, in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath

Nandkarni, came to hold that ‘the right to life’ guaranteed by Article 21 includes ‘the right to
livelihood’.58 Further, five-judge bench of the Apex Court in the Pavement Dwellers Case 59
implied that the right to livelihood is borne out of the right to life as no person can live
without the means of living i.e. the means of livelihood:

“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It
does not mean, merely that life cannot be extinguished or taken away as, for
example, by the imposition and execution of death sentence, except according to
procedure established by law. That is but one aspect of the right to life. An
equally important facet of the right to life is the right to livelihood because no
person can live without the means of livelihood.” 60

The Court further opined that the easiest way of depriving a person of his right to life would
be to deprive him of his means of livelihood to the point of abrogation if the same is not
protected under the Constitutional right to life:

“The state may not by affirmative action, be compelled to provide adequate

means of livelihood or work to the citizens. But any person who is deprived of his
right to livelihood except according to just and fair procedure established by law
can challenge the deprivation as offending the right to life conferred in Article
21.” 61

Emphasizing upon the close relationship of life and livelihood, the Court stated:
“That, which alone makes it impossible to live, leave aside what makes life
livable, must be deemed to be an integral part of the right to life. Deprive a

57
Supra 56
58
(1983) 1 SCC 124
59
Olga Tellis v. Bombay Municipal Corporation [AIR 1986 SC 180]
60
Supra 59
61
Supra 59

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person from his right to livelihood and you shall have deprived him of his life.”62

There exist international treaties that protect the rights of individuals to work and for free
choice of employment. These include Article 23.1 of the Universal Declaration of Human
Rights, United Nations General Assembly63 and Article 6 in Part III of The International
Covenant on Economic, Social and Cultural Rights64. 

As there is no proof of ‘native Gulmohari’ being defined by the centre as a Scheduled tribe,
Scheduled caste or any other backward class, the same benefits cannot be given to the said
class of society under the Constitution. The same has been highlighted under Article 16
which allows the state to prescribe reservation in employment only to an office under the
local government or local authority, not in private businesses.65

Multiple states of India have attempted to and failed at providing special reservations to
“Sons of the Soil” and the case of Gulmohar shall be no different. The other states at least
really attempted to work their way through the bureaucracy and conducted some form of
research to substantiate their claims of the natives really needing the reservation. The first
draft bill for the impugned Act was released within a month from the demands of the mob
being accepted.66

The Court must consider not only the provisions in law but also the ground reality of the
general hardworking public of the state that will be set back decades because of the
implementation of this arbitrary law. Paying 1% of annual turnover in fine for every 1% less
than the required 65% ‘native Gulmohari’ in the workforce of the company 67 is also an
unreasonable demand under section 47 of the impugned Act 68 as companies have high costs
and expenses of running. The “turnover” does not take into account the costs of operation and
such high fines would eat into the already very low profit margins of the companies in

62
Supra 59
63
United Nations, Universal Declaration of Human Rights | United Nations, United Nations,
https://www.un.org/en/about-us/universal-declaration-of-human-rights
64
OHCHR | International Covenant on Economic, Social and Cultural Rights,
Ohchr.org, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
65
IndiaConst. Art. 16
66
Moot Prop. ¶10 & ¶13
67
Moot Prop. ¶14(c)
68
Moot Prop. Annexure B

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heavily competitive markets that would lead to formation of monopolies. The Supreme Court,
in 1970 elaborately described the situation in which penalties were to be levied:

“An order imposing penalty for failure to carry out a statutory obligation is the
result of a quasicriminal proceeding, and penalty will not ordinarily be imposed
unless the party obliged either acted deliberately in defiance of law or was guilty
of conduct contumacious or dishonest, or acted in conscious disregard of its
obligation. Penalty will not also be imposed merely because it is lawful to do so.
Whether penalty should be imposed for failure to perform a statutory obligation
is a matter of discretion of the authority to be exercised judicially and on a
consideration of all the relevant circumstances. Even if a minimum penalty is
prescribed, the authority competent to impose the penalty will be justified in
refusing to impose penalty, when there is a technical or venial breach of the
provisions of the Act or where the breach flows from a bona fide belief that the
offender is not liable to act in the manner prescribed by the statute.”69

Punishment should be proportional to the crime that was committed by the individual. Justice
White laid out the rules for determining proportionality of a crime. A punishment can be
deemed “excessive” and therefore unconstitutional if it “1) makes no measurable
contribution to acceptable goals of punishment and hence is nothing more than the
purposeless and needless imposition of pain and suffering and 2) is grossly out of proportion
to the severity of the crime”.70

Finally, Article 21 does not place an absolute embargo on the deprivation of life or personal
liberty and, for that matter, on the right to livelihood. What Article 21 insists is that such lack
ought to be according to procedure established by law which must be fair, just and
reasonable. Therefore, anyone deprived of the right to livelihood without a just and fair
procedure set by law can challenge such deprivation as being against Article 21 and get it
declared void.71 Therefore, it is urged to the present Court to declare the unfair, unjust and
unreasonable impugned Act as void under Article 21 and to declare the impugned Act made

69
Hindustan Steel Ltd vs State Of Orissa, [1970 SCR (1) 753]
70
Coker v. Georgia (1977) [433 U.S. 584 (1977)] (United States).
71
M.P. Jain, Indian Constitutional Law, Wadhwa, 5th Ed. (2003), p. 1315

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in derogation of Fundamental Rights to be void under Article 13(2).72

E. NOT A MONEY BILL

A Money Bill is defined under Article 199 of the Constitution under Chapter III (The State
Legislature) as:
“199. Definition of “Money Bills”.—(1) For the purposes of this Chapter, a Bill
shall be deemed to be a Money Bill if it contains only provisions dealing with all
or any of the following matters, namely:—
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money or the giving of any guarantee by
the State, or the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the State;
(c) the custody of the Consolidated Fund or the Contingency Fund of the State,
the payment of moneys into or the withdrawal of moneys from any such
Fund;
(d) the appropriation of moneys out of the Consolidated Fund of the State;
(e) the declaring of any expenditure to be expenditure charged on the
Consolidated Fund of the State, or the increasing of the amount of any such
expenditure;
(f) the receipt of money on account of the Consolidated Fund of the State or
the public account of the State or the custody or issue of such money; or
(g) any matter incidental to any of the matters specified in sub-clauses (a) to
(f).

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides
for the imposition of fines or other pecuniary penalties, or for the demand or
payment of fees for licences or fees for services rendered, or by reason that it
provides for the imposition, abolition, remission, alteration or regulation of any
tax by any local authority or body for local purposes.……”73

Evidentially, the impugned Act does not contain provisions dealing with any of the matters
listed above, even remotely. Therefore, the Bill being introduced in the State legislature as a

72
India Const. Art. 13(2)
73
India Const. Art. 199

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Money Bill itself is illegal and unlawful and shall therefore be declared void ab initio. A
seven-judge bench, while distinguishing “irregularity of procedure” from “illegality”, held
that it is possible for a “citizen to call in question in the appropriate Court of law, the validity
of any proceedings inside the legislative chamber if his case is that the said proceedings
suffer not from mere irregularity of procedure, but from an illegality.”74 The same was
highlighted in the dissent of Justice D. Y. Chandrachud in the Aadhaar case 75, Ramdas
Athawale’s case76 and  in Raja Ram Pal’s case77 “the validity of proceedings in Parliament
or a State Legislature can be subject to judicial review on the ground that there is an
illegality or a Constitutional violation.”

F. THE IMPUGNED ACT IS UNCONSTITUTIONAL

The 1970 judgement in Ganga Ram v. Union of India highlighted that “The differences which
warrant a classification must be real and substantial and must bear a just and reasonable
relation to the object sought to be achieved.”78 which has been revisited and elaborated by
Justice R. F. Nariman in a recent case as cited below:

“In this connection it must be borne in mind that the object itself should be
lawful. The object itself cannot be discriminatory, for otherwise, for instance, if
the object is to discriminate against one section of the minority the discrimination
cannot be justified on the ground that there is a reasonable classification because
it has rational relation to the object sought to be achieved.”79

The Indra Sawhney Judgement80 laid down a 50% ceiling on total reservations while relying
on Dr. Ambedkar81’s arguments from the Constituent Assembly Debates 82 where he observed

74
Reference under Article 143 of the Constitution of India, Special Ref. No. 1 of 1964 Dt. 30-
9-1964: reported in [AIR 1965 SC 745]
75
Justice K.S. Puttaswamy (Retd.) And Another v. Union Of India And Ors. [(2017) 10 SCC
1]
76
Ramdas Athawale vs Union Of India & Ors [2010 (4) SCC 1]
77
Raja Ram Pal vs The Honble Speaker, Lok Sabha & Ors. [(2007) 3 SCC 184]
78
1970 SCR (3) 481
79
Manish Kumar vs Union of India [2021 SCC Online SC 30]
80
1992 Supp (3) SCC 217
81
Constitution of India, Constitutionofindia.net,
https://www.Constitutionofindia.net/constituent_assembly_members/b__r__ambedkar
82
Constitution of India, Constitutionofindia.net,
https://www.Constitutionofindia.net/Constitution_assembly_debates

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that only a ‘minority of seats’ may be set aside for reservations in light of equality.
Reservation policies under Articles 15(4) and 16(4) cannot be so excessive that the general
class is denied equality of opportunity then.83

“In paragraph 808, Justice Jeevan Reddy referred to speech of Dr. Ambedkar
where he said that the reservation should be confined (to a minority of seats). The
expression minority of seats”. When 143 translated into figure the expression less
than 50% comes into operation.”84

Similarly, the Maratha Quota Judgement85 recently set aside the 13% reservation benefits
provided to the Maratha community in Maharashtra. The simple reason for the same being set
aside was that the total reservations in jobs and education would be dragged above the 50%
“Lakshman rekha” set in the Indra Sawhney Judgement86 without there being any
extraordinary circumstances. In the present case the impugned act is reserving 65% jobs
horizontally for the so-called ‘native Gulmohari’.87 There seems to be virtually no special
case here to allow Gulmohar to cross the ‘Lakshman Rekha’ either.

“Just as every power must be exercised reasonably and fairly, the power
conferred by Clause (4) of Article 16 should also be exercised in a fair manner
and within reasonably limits - and what is more reasonable than to say that
reservation under Clause (4) shall not exceed 50% of the appointments or posts,
barring certain extra-ordinary situations as explained hereinafter.”88

Not only is the excess reservation unconstitutional, for discriminating against the rest of the
general diverse public of Gulmohar89 but also unethical and immoral. Such a broad category
reservation to one class of society with such disproportionally high penalties to companies
failing to comply will mean that the qualified, deserving employees already working in the
companies who don’t fall within the quota will have to be laid off. These citizens will lose

83
M. R. Balaji And Others vs State Of Mysore [1962 SCR Supl. (1) 439]
84
Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr.
85
Supra 84
86
Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]
87
Moot Prop. Annexure B
88
Supra 84
89
India Const. Art. 15

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their right to an adequate livelihood, while companies might be forced to hire underqualified
staff to save penalties, while taking a hit on profits.

It is a Constitutional right of citizens of the country to move freely throughout and to reside
and settle in any part of the territory under Articles 19(d) and 19(e) respectively. 90 The State
of Gulmohar may not interfere with this right of citizens by withholding opportunities for the
so-called ‘natives’. Art. 13(2) states that any law made in derogation of the fundamental
rights will be void. The above fundamental rights help maintaining secularity in this vast,
diverse nation as promised by the Preamble to the Constitution. Pushing for extra benefits for
a community that arguably hasn’t even been oppressed in the locality would go against the
basic structure of the Constitution and thus should not stand.

The Apex Court has recognised the power of High Courts under Articles 226 and 227 of the
Constitution to review any laws made at odds with part III of the Constitution. 91 The Supreme
Court even took a step further by affirming that Judicial review is part of the basic structure
of the Constitution and that the judiciary shall even have the power to strike down such
legislations if considered void or unconstitutional.92

In 1961, the State of Gujarat following the bifurcation of the State of Bombay had enacted
the Bombay Welfare Fund (Gujarat Extension and Amendment Act). It was claimed by one
Ambica mills Ltd. that certain amendments in this act violated the fundamental rights of
citizen employers and employees under a provision of Article 19 93. The Apex Court agreed
on this view and applying the Doctrine of Severability, deleted the unreasonable clauses
using its power derived from Article 13(2) of the Constitution.94

One may even compare the present situation to a USA judgement that banned the compulsory
sterilization of habitual criminals. The facts of the case may not be essentially the same,
however the ratio remains valid where the supreme Court found that “the statutory
classification denied equal protection” and that “there is no necessary reason for choosing
the intent to exclude one group over the intent to include another”. The entire statute was
90
India Const. Art. 19
91
L. Chandra Kumar v. Union of India [(1995) 1 SCC 400]
92
Indira Nehru Gandhi vs Shri Raj Narain & Anr [1975 AIR 865]
93
India Const. Art.13(2)
94
The State of Gujarat And Anr. vs Shri Ambica Mills Ltd. [1974 SCR (3) 760]

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held unconstitutional for having discriminatory bias.95 There seems no fair reason for the
present impugned Act to stand either.

The Supreme Court in 1966 clarified that “The State is not the last word on distinguishing a
regressive class for giving reservation and that a Court can upset any such assurance on the
off chance that it depends on superfluous thought or shows maltreatment of force.” 96 It is
therefore requested to the Court to take cognizance of this malfeasance and take action
against the state.

II. THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES THE BASIC

STRUCTURE OF THE SAPOTA CONSTITUTION

It is humbly submitted before this Hon’ble Court that the amendment violates the basic
structure of the Constitution on the grounds that A). The amendment emasculates the basic
structure of Constitution, B). Violates the republican and democratic form of government. C).
The discretion of the Governor is circumcised by law. D). Width of power

A. DOCTRINE OF SEVERABILITY
The petitioner has approached this Hon’ble Court to declare section 3 of the The Constitution
(Thirty Sixth) Amendment Act, 2020 [hereinafter, 2020 amendment] which inserts article
162A to the Constitution, void and ultravires to the Constitution. The petitioner has
challenged only the abovementioned section without challenging the entire 2020 amendment.

Section 3 of the 2020 amendment is severable from the entire 2020 amendment act as the
sections 1 & 2 of the 2020 amendment act deals with X Schedule of the Constitution 97.
Article 162A is being challenged because the Parliament has gone beyond its amending
powers and have violated the basic structure of the Constitution and it deals with the
procedure to form council of ministers. The decision in The State of Bombay and anr. v. F.N
Balsara 98
is clear authority that the principle of severability is applicable even when the
partial invalidity of the Act arises by reason of its contravention of Constitutional

95
Skinner v. Oklahoma ex rel. Williamson, [316 U.S. 535 (1942)] (United States).
96
Triloki Nath Tiku and Anr Vs State of Jammu and Kashmir [1967 SCR (2) 265]
97
Moot Prop. Annexure A
98
[1951] S.C.R. 682

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limitations. The Supreme Court in this case had declared sections 4 & 55 of the 42nd
Amendment Act, invalid, for being beyond the amending powers of the Constitution while
upholding the rest of the act to be valid.

There are two limitations broadly on the power of Parliament to amend the Constitution:
(i) Parliament must scrupulously follow the procedure provided in Article 368;
(ii) There is also the substantive limitation on power of the Parliament to amend the
Constitution, which is far too well established to require support from case law, viz., that
Parliament cannot amend the Constitution by breaching its basic features.99

The doctrine of severability was heard at length in RMDC v. Union of India 100 wherein the
Court summarised the certain rules of construction laid down by the American Courts,
where the question of severability has been the subject of consideration in numerous
authorities. One of the summaries states:

“5. The separability of the valid and invalid provisions of a statute does not depend
on whether the law is enacted in the same section or different sections; (Vide
Cooley’s Constitutional Limitations, Vol. 1, pp. 361-362); it is not the form, but the
substance of the matter that is material, and that has to be ascertained on an
examination of the Act as a whole and of the setting of the relevant provisions
therein.”

Applying this principle to the present case, section 1 & 2 solely deal with the Tenth Schedule
and section 3 with the insertion of Article 162A. It is clear-cut that there is distinction of not
only sections but the substance of the matter that is material. Sections 1-2 and section 3 of the
amendment act and they are easily separable.

It is vehemently contended that section 3 of the 2020 amendment act violates the basis
structure of the Constitution.

B. THE AMENDMENT ‘EMASCULATES’ THE BASIC STRUCTURE OF THE CONSTITUTION

99
Union Of India V. Rajendra N. Shah And Anr. 2021 SCC OnLine SC 474
100
1957 SCR 930

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The amendment emasculates the basic structure of the Constitution by way of not specifically
envisaging the post poll alliance in its text. In Kesavananda Bharati 101 case, including Chief
Justice Sikri who signed the summary statement, declared that Parliament's constituent power
was subject to inherent limitations. Parliament could not use its amending powers under
Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic
structure' or framework of the Constitution.102

The parliament has ‘altered’ the Constitution by adding article 162A in its text which violates
the basic structure of the Constitution. Article 162A has failed to envisage “post poll
alliance” in its text103. Post poll alliance plays and important part in forming a democratic and
republican form of government. The SDRS is a socialist, democratic & republican nation as
the name itself suggests.

It might be said that single largest group; in essence, the post-poll alliance must be the
quintessential choice without a second thought. The same has been apparently supported by
the Supreme Court104 in Rameshwar Prasad v. Union of India105, wherein it was observed
that,

“Where a political party with the support of other political party or other MLAs
stakes claim to form a Government and satisfies the Governor about its majority to
form a stable Government, the Governor cannot refuse formation of the Government
and override the majority claim because of his subjective assessment that the majority
was cobbled by illegal and unethical means. No such power has been vested with the
Governor. Such a power would be against the democratic principles of majority rule.
The Governor is not an autocratic political ombudsman. If such a power is vested in
the Governor and/or the President, the consequences can be horrendous.”

The Governor has to use his discretionary powers to form a stable government. The governor
has to explore all the possibilities to see which political party/alliance is able to substantiate
the claim of majority in the legislative assembly which the Governor of Gulmohar, Ms.
101
Kesavnanda Bharti v. State of Kerala (1973) 4 SCC 225
102
India Const. Art. 368
103
Moot Prop: Annexure A ¶3.
104
Supreme Court of India
105
(2006) 2 SCC 1

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Bulbul has failed to do so in this present case. The Governor invited Ms. Azhilu of the GRP
to form the Government despite the fact that Mr. Giduga of the SBP formed an alliance with
Mr. Kaage of PPS and had a clear majority of 158 seats clubbed together whereas GRP had
132 seats.106 Mr. Giduga and Mr. Kaage announced that they had formed a “post-poll”
alliance and also sent the letters to Ms. Bulbul, emphasing their interest in forming the
Governmnent. The threshold for majority in Gulmohar is 151 seats as the there are 300 seats
total in the legislative assembly of Gulmohar. The alliance of SBP and PPS would result in a
majoritarian form of government.

The possibilities which can be explored by the governor are being restricted by this impugned
amendment because the ‘post poll alliance’ is not envisaged in the amendment which is an
important criteria in forming a democratic and republican form of government.

This amendment is violating the basic structure of the Constitution by altering and destroying
the very spirit of the democratic values.

C. VIOLATES THE REPUBLICAN AND DEMOCRATIC FORM OF GOVERNMENT.

The Parliament cannot arrogate to itself the power of amendment so as to alter or destroy any
of the essential features of the Constitution. 107 If only one keeps in mind the democratic
principle underlying the Constitution and the fact that it is the Legislative Assembly that
represents the will of the people and not the Governor the position would be clear beyond any
doubt...There could be no question of the Governor making an assessment of his own.108

Paragraph 3 of Article 162A states,

“(3) Where no head of the legislative party or head of legislative alliance enjoys the support
of more than fifty per cent of the elected members of the Legislative Assembly of such state,
the Governor shall invite the head of a legislative party or the head of legislative alliance
with the highest number of elected members of the Legislative Assembly of such state to take
oath as Chief Minister of the State and present their Council of Ministers.”

106
Moot Prop. ¶ 23, ¶26, ¶27, ¶28
107
V.N. SHUKLA, CONSTITUTION OF INDIA, 131 (M.P. Singh, 13th Ed., 2017).
108
S.R Bommai v. Union of India, (1994) 3 SCC 1

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The amendment is violating the democratic value of forming a government of majority of

elected members. The Constitution is given by the people to the people for the people as
mentioned in the preamble. Justice B.P. Jeevan Reddy, in the celebrated nine Judge Bench
decision of the Supreme Court in S.R Bommai v. Union of India109 [hereinafter, S.R Bommai],
expounded his view wherein he held as follows:

“If only one keeps in mind the democratic principle underlying the Constitution and
the fact that it is the Legislative Assembly that represents the will of the people and
not the Governor.”

The S.R Bommai110 judgement has been cited in many judgements including the recent case
of Shiv Sena v. Union of India.

The Social Democratic Republic of Sapota [hereinafter, SDRS], like India, was formed out of
provinces ruled by the British, adopted a Westminster Parliamentary form of Government
and its legal system is based largely on the common law. 111 The pre-poll alliances are mostly
formed on basis of shared ideology. The post-electoral alliances helps in fostering
consociationalism. The SRDS like India has socio-economic diversity. Successful post
electoral coalitions would translate into a coherent government coalition. To consolidate the
democracy, the political parties have to think beyond maintaining their identity and profile by
forming alliance with other political parties to establish a majoritarian government and gain
benefits of participating in government. This pragmatic cooperation would lead to
consolidation of democracy.

Pragmatic alliances in some cases have proved extremely successful. In Tamil Nadu112 the
1998 alliance with the All India Anna Draavida Munnetra Kazhagam (AIADMK) 113 and
assorted minor parties (Pattali Makkal Katchi – PMK, Marumalarchi Dravida Munnetra
Kazhagam – MDMK) saw the combine winning 30 of the 39 seats. In Orissa 114, the alliance
with the Biju Janata Dal (BJD) saw the alliance win 11 of 13 seats in 1998 and, in 1999,

109
(1994) 3 SCC 1
110
Supra Note 104
111
Moot prop. ¶ 3.
112
State in India
113
Indian Political Party
114
State in India

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increase this to 12. In some states alliances proved less successful. The 1998 alliance between
the Bhartiya Janta Party (BJP) 115 and the Telugu Desam Party (TDP)(NTR) in Andhra
Pradesh116 was a conspicuous failure, while in West Bengal117 the arrangement with the
charismatic ex-Congress leader Mamata Banerjee yielded eight seats (7 Trinamul and 1 BJP)
in 1998 and nine (7 Trinamul and 2 BJP) in 1999, of a possible 42.

In a political system characterised by instability and political defection little weight could be
given to any a priori assumption that a successful electoral alliance would translate into a
coherent government coalition. A core assumption of coalition theory is that parties benefit
from being in government:

“If a party participates in government, not only do the psychological rewards of wielding
power accrue to the party elite and its backbenchers, but also the party is in a position to use
the power of the state to reward its friends and punish its enemies.”118

There are still major issues with the functioning of parliamentary democracy and the delivery
of public policy programmes, but also a widespread recognition that alliances and coalition
politics reflect the regional diversity and social complexity of the country. For this reason, it
is submitted that electoral alliances and coalition politics are key to the representative role of
democracy in contemporary SDRS.

This amendment enacted in 2020 restricts the post electoral coalitions leading to weakening
of democracy and thus violating the basic structure.

D. THE DISCRETION OF GOVERNOR IS CIRCUMSCRIBED BY LAW

The discretion must be exercised keeping in view the purpose for which it was conferred and
the object sought to be achieved, and must be exercised within the four corners of the
statute.119 The discretionary power of the Governor needs to be curtailed, as the interpretation
of the scope of this power is a potential threat to the autonomy of states and the right of the

115
Indian Political party
116
State in India
117
State in India
118
Browne, E C & M N Franklin. 1973. ‘Aspects of Coalition Payoffs in European Parliamentary
Democracies’. American Political Science Review 67, p 453.
119
See: Clariant International Ltd. and Another v. Securities and Exchange Board of India (2004(8) SCC 524

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people to be governed by a responsible government. The Governor should exercise his

discretionary power only as a last resort as recommended by the Sarkaria Commission.120

E. WIDTH OF POWER TEST

What is of importance is the the ‘width of power’ test propounded by Mr. Palkhivala in
Kesavnanda Bharti case and adopted by M Nagaraj and now rechristened in I.R Coelho 121 as
the direct and impact test which means that form of an amendment is not relevant, its
consequence would be the determinative factor.122

It is humbly submitted that the consequence of this amendment would be a government with
no majority and that violates the basic feature of democratic and republican form of
government.

III. THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF GULMOHAR TO
INVITE A POST-POLL ALLIANCE TO FORM THE GOVERNMENT

Yes, the High Court can legally direct the Governor of Gulmohar to invite a post-poll alliance
to form the Government. The act of hon’ble governor of Gulmohar to invite Ms Azhilu to
form government is judicially reviewable.

A. GOVERNOR’S DISCRETIONARY POWER IS JUDICIALLY REVIEWABLE

In a parliamentary system, to form a government political parties have to get a clear majority
in any state election, but in cases when no single political party or pre-poll alliance gets a
majority it is declared a hung assembly. In such situations, a coalition government may be
formed in which parties might enter into alliances after the elections. The government may be
formed with outside support of parties and independent MLAs. In case no government is
formed then President’s Rule would be imposed by the state Governor under Article 356 of
the Constitution. Re-election could also take place. Maharashtra recently saw a case of hung
elections in 2019 when no clear majority was reached and President’s Rule was imposed.

In this dubious state of affairs, the role of Governor becomes of utmost importance. He needs
120
Justice Sarkaria Commission Report, Chapter IV Role of Governor
121
(2007) 2 SCC 1
122
Ibid.

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to determine, in his own discretion, who is better suited to become the CM warranting the
procurement of a stable Government and upholding the promises of the constitutional
mandates. However, the choice of the Governor in appointment of the CM is not entirely
without any constitutional mandate.

There are certain exceptional circumstances when the Governor may act on his own
discretion. One of them is inviting a person to form the ‘Government’. The Governor has
wider discretionary power in this situation than that of the President of India. This exercise
of discretion of the Governor is however subject to judicial review and this discretion
must not be used in arbitrary and capricious manner.

Article 163(1) reads as:

“There shall be a Council of Ministers with the Chief Minister as the head to aid and advise
the Governor in the exercise of his functions, in so far as he is by or under the Constitution
required to exercise his functions or any of them in his ‘discretion’ (emphasis added)” 123

Article 163 does not, as is often mistaken, grant Governors a general discretionary power.
The area of this (Governor’s) discretion is limited. Even this limited area should not be
arbitrary or fanciful in his choice of action. It must be a choice dictated by reason, driven by
good faith and tempered by prudence. When a successor government is still in place, the
court may use its judicial review powers to review the government in force.  

In 2016, the Supreme Court in the Nabam Rebia124 case delved into the scope of a Governor’s
‘discretionary power’. The court held that discretion should not be interpreted as “absolute”
but as “constitutional discretion”. In simple terms, this means that exercise of Governor’s
discretionary power is only to the extent that it fits within the ambit of the Constitution
and therefore would be judicially reviewable. 

So, the Governor’s discretion to call parties for forming the government or the act of giving
15 days timeline to prove majority are judicially reviewable.

The Governor is not an elected representative, but only an executive nominee whose powers
123
India Const. Art. 163
124
(2017) 13 SCC 332

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are derived from the Cabinet's assistance and advice. It is not within the Governor's domain
to embroil in any electoral thicket. Within individual political factions, the governor must
stay aloof from any conflict, strife, disharmony, resentment or disagreement. Activities
within a political party are beyond the Governor's concern, confirming turbulence or unrest
within its ranks. The Governor Shall remain clear of any public horse-trading and even
unethical political manipulations, regardless of the degree of their moral repulsion.

The Supreme Court, in the Rameshwar Prasad case held:

“It is also necessary to note that the immunity granted to the governor does not affect the
power of the court to judicially scrutinise the attack made to the proclamation issued under
Article 356(1) of the Constitution of India on the ground of mala fides or it being ultra vires.
It would be for the government to satisfy the court and adequately meet such ground of
challenge,”125.

In a parliamentary democracy like India, Judicial review exhibits a particularly diverse

predicament atypical to a presidential form of Government like the United States. This is
owed to the continuous tussle for supremacy between the primary organs of governance, the
Legislature and the Judiciary.

In fact, in the Keshav Singh case126, the Supreme Court observed that the dominant feature of
the British Constitution, ie., parliamentary sovereignty, has no place in a federal constitution
such as India. In view of this, it can be inferred that the Court may also look into questions
pertaining to the formation of government.

The evolution of judicial deliberation on the role and extent of judicial review on the exercise
of the Governor’s discretion began in the judicial pronouncement in B.R. Kapur v. State of
Tamil Nadu127. The court did not categorically uphold the legality of judicial review of
gubernatorial discretion and neither did it delve into the question of absolute immunity
granted to his discretionary actions under Article 321. However, the court stated that the
validity of the appointment made under such discretionary exercise of power still remains
within the purview of constitutional review and the selected person is under a constitutional

125
(2006) 2 S.C.C. 1
126
AIR 1965 All 349
127
AIR 2001 SC 3435

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obligation to prove the validity of his/her appointment.

Then monumental judgement on the issue of absolute immunity to Governor under Article
361 however came in 2006 in Rameshwar Prasad v. Union of India (supra)128. In this
landmark decision, the Supreme Court dropped any previous hesitation and categorically
stated that the immunity granted to the Governor under Article 361 is not absolute and the
court may judicially scrutinise such actions on the ground of mala fides and ultra vires.

Recently, the extent of Governer’s discretion and the immunity ensuing therefrom has been
concretised in the judgement in Nabam Rebia and Bamang Felix v. Deputy Speaker,
Arunachal Pradesh Legislative Assembly129. The court concluded that if the Governor were to
be vested with absolute discretionary powers, the resulting authority would be in the nature of
imperial institution in a position to act ultra vires of the constitution. Hence, the court
confirmed its earlier decision upholding the validity of judicial review in the exercise of his
discretionary powers by the Governor.

B. POST POLL ALLIANCE OF SBP AND PPS IS CONSTUTIONALLY VALID

The Supreme Court’s nine-judge bench in its landmark judgement in S R Bommai Vs Union
of India (1994) has held that the majority in a Council of Ministers has to be tested on the
floor of the House. “In a situation arising after a general election, the governor has to invite
the leader of the party commanding majority in the House or the single largest party/group to
form the government,”130 the apex court held.

In the case of Jagdambika Pal v. State of UP131, the Supreme Court held a special Assembly
session and a composite floor check among the opposing sides to determine which among the
two had a majority in the House.

There is a clear line of precedent under which the Governor should call the post poll alliance
of SBP and PPS to prove their majority. Governor’s decision to call GRP the single largest
party, in this case, goes against general conventions and case laws presented above.

128
(2006) 2 S.C.C. 1
129
(2017) 13 SCC 332
130
1994 AIR 1918
131
RLW 1999 (1) SC 1

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This has been confirmed by the 5 judge bench in the Rameshwar Prasad  case (2006). In this
case, the 5 judge bench by 3:2 majority observed –
“if a political party, with the support of other political party or other MLAs, stakes claim to
form a government and satisfies the governor about its majority to form a stable government,
the governor cannot refuse formation of the government and override the majority claim
because of his subjective assessment that the majority was cobbled by illegal and unethical
means.”132

The issue concerning Gulmohar is clear, the post-poll alliance has indicated that it has the
requisite numbers to form the government. Therefore, the apparent single largest party
prima facie would be unable to show that it can muster the numbers to form the
government.

Therefore, in all fairness, it should be the post-poll alliance that has to be called upon. The
only way the largest party will be able to muster the numbers is either by horse-trading or
defection. This will tantamount to circumventing the Constitution.

The governor has to satisfy himself, constitutionally, that whichever party is called upon will
form a stable government. The SBP and PPS alliance is visibly displaying that.

Moreover, based on Rameshwar Prasad v/s the Union of India133, the Sarkaria Commission
report134 and the precedent set in Goa, Meghalaya and Manipur, post-poll alliances seem to be
the first choice.

132
(2006) 2 SCC 1
133
Supra
134
Justice Sarkaria Commission Report, Chapter IV: Role of Governor

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[PRAYER]

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT
MAY BE PLEASED TO:

1. Declare the impugned act void and direct the state government to act in
accordance with law.
2. Declare the Article 162A of the Constitution of Sapota void and unconstitutional.
3. Direct the Governor to the conduct a floor test in the State Assembly in order to
prove majority.
4. Also, pass any other relief that this Hon’ble Court may be pleased to grant in
favour of the Petitioner in the interests of justice, equity and good conscience.

And for this act of kindness the petitioner as is duty bound shall ever pray.

All of which is humbly prayed,

Counsels for the Petitioner
22A

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