- Respondents-

TEAM CODE R 5
IN THE SUPREME COURT OF APELONIA

[SLP (C) 2141 OF 2016]

[under article 136 of Constitution of India]

UNION OF APELONIA………………………………..……APPELANT
V.
MR.X (CHIEF MINISTER OF CROASIA)…………………...………..RESPONDENT
 - Respondents-

TABLE OF CONTENTS

List of Abbreviations ............................................................................................................ III

INDEX OF AUTHORITIES .................................................................................................. V

Statement of Jurisdiction ..................................................................................................... VI

It is humbly submitted that the appellants have invoked the jurisdiction of the hon’ble
court under article 136 of indian constitution. the respondent submits to the same. ..... VI

ISSUES PRESENTED .......................................................................................................... IX

Summary of Arguments ........................................................................................................ 11

ARGUMENTS ADVANCED ................................................................................................ 13

II. THAT THE DEPRIVATION OF FLOOR TEST IS IN BLATANT VIOLATION OF

CONSTITUTION UNDER ARTICLE 356. ........................................................................ 18

Prayer ...................................................................................................................................... 23
 - Respondents-

LIST OF ABBREVIATIONS
1. AIR All India Reporter
2. All ER All England Reports
3. AoA Articles of Association
4. Art Article
5. BCC British Company Law Cases
6. BCLC Butterworth’s Company Law Cases
7. CA, 1956 Companies Act, 1956
8. CDR Corporate Debt Restructuring
9. cl. Clause
10. CLB Company Law Board
11. CompCas Company Cases
12. CompLJ Company Law Journal
13. Edn Edition
14. H&G(M) Heppleworth and Grimes (Mauritius) Incorporated
15. HC High Court
16. IIDB Industrial and Infrastructure Development Bank
17. LA Loan Agreement
18. MLA Member of Legislative Assembly.
19. MoU Memorandum of Understanding
20. NSP National Socialist Party
21. PPP Public Private Partnership
22. RBI Reserve Bank of India
23. RCCP RCC Ports Limited
24. RDP Revolutionary Democratic Party
25. S Section
26. SC Supreme Court
27. SCC Supreme Court Cases
28. SIDC Sanyasthan Infrastructure Development Corporation
29. SLP Special Leave Petition
 - Respondents-

30. Vol Volume

31. VSPL Vyasnagar Sea Ports Limited
Arguments Advanced -Respondents-

INDEX OF AUTHORITIES

Cases
A.K. v. Union of India, A.I.R. 1982 S.C. 710. ......................................................................... 11
ArjunMunda v. Governor of Jharkhand, (2005) 3 S.C.C. 399. ............................................... 16
Barium Chemicals Ltd. and Anr. v. The Co. Law Board and Ors. [1966] Supp. 3 S.C.R. 31. 13
M.A. Rashid and Ors.v. State of Kerala, (1975) 2 S.C.R. 93. ................................................. 14
Mahoharan v. State, (1997) S.C.C. Online Mad. 261 ............................................................. 15
Rameshwar Prasad and ors. v. Union of India and ors. (2006),2 S.C.C. 1. ............................. 10
S.R. Bommai and ors. v. Union of India and ors,(1994) 3 SCC 1. .......................................... 11
S.R. Bommai and ors. v. Union of India and ors.,(1994) 3 S.C.C. 1. ...................................... 10
State of Rajasthan and ors. v. Union of India, [1978]1SCR1. ................................................. 10
State of Rajasthan and Ors. v. Union of India, [1978]1SCR1. ................................................ 11
Union of India & others v. ValluriBasavaiahChowdhary and others, (1979) 3 S.C.C. 324. .. 15

Books
Durga Das Basu, Commentary on the Consitutuion of India (8th ed. ButterWorths Wadhwa
2012). ................................................................................................................................... 14
Shorter Oxford English Dictionary [3rd Edition] at page 1792. .............................................. 15
Union of India v.Sh. Harish Chandra Singh Rawat and Anr., (2016) S.C.C. OnLine S.C. 442.
.............................................................................................................................................. 14
Arguments Advanced -Respondents-

STATEMENT OF JURISDICTION
IT IS HUMBLY SUBMITTED THAT THE APPELLANTS HAVE INVOKED THE JURISDICTION OF THE
HON’BLE COURT UNDER ARTICLE 136 OF INDIAN CONSTITUTION. THE RESPONDENT SUBMITS TO

THE SAME.

This memorandum sets forth the facts, contentions and arguments for the Respondents in
the given case.
Arguments Advanced -Respondents-

STATEMENT OF FACTS

 Election to the crosia Legislature, which consists of 70 elected members and one
nominated Anglo-Indian member, was held on 30.01.2012. The results were
announced on 06.03.2012. ANP emerged with 32 seats. APP got 31 seats. Three seats
were bagged by the Bahujan Samaj Party (BSP). There were three Independents
returned by the electorate. Thereafter, certain bye-elections were held.
 On 18.03.2016, the Appropriation Bill was taken up for consideration. According to
the petitioner, the Bill was passed. After the passage of the Bill, 26 MLAs belonging
to the BJP and 9 MLAs belonging to the Congress, who are characterized as the rebel
MLAs and who had been instigated by the BJP to topple the democratically elected
Government, purported to seek a division of vote. The case of the petitioner is that the
demand was made after the passage of the Bill. It is the further case of the petitioner
that the validity of the passage of a Bill is a matter for the Speaker to decide. Taking
Arguments Advanced -Respondents-

this as a pretext, it is the case of the petitioner, a sequence was woven by the BJP to
impose President’s Rule in the State.

 The 26 MLAs belonging to the BJP and the 9 rebel Congress MLAs went to the Raj
Bhawan on the same day and submitted a signed joint memorandum on the letter head
of the leader of the opposition stating that the Government had been reduced to a
minority criticizing the manner in which the vote on the Appropriation Bill was
carried out and that the Government led by the Congress Party should be dismissed. It
is the case of the petitioner that the ruling APP at the Centre, in pursuance of its
scheme to overthrow the Government of the State, decided to take recourse to the
emergency provisions contained in Article 356 of the Constitution in its desperation to
topple the Government. A doctored video on the basis of a purported sting operation
was released on 26.03.2016, it is alleged. It was to portray a case for imposition of
President’s Rule, it is stated. The contents of the video tended to show that the
petitioner was indulging in horse trading. It is described as absolutely preposterous, to
say the least. The veracity of the video was in dispute and completely
unauthenticated. Finally, on 26.03.2016, the Governor had sent a letter to the
President, wherein, among other things, he refers to the fact that a letter was received
from the office one of the APP MLAs, who stood disqualified ; the cover had a
representation by another MLA , there is a pen drive attached to it; and there are three
audio conversations and one video recording The same was forwarded to the
President. Centre moved to supreme court inder article 136 of the constitution
challenging an interim order by a bench of Corsia HC directing a floor test in the
assembly, 15 days after president’s rule was imposed int he state.SC stayed the status
quo and matter is taken up to be heard and adjudicated upon.
Arguments Advanced -Respondents-

ISSUES PRESENTED

I. Whether the power of president under article 365 can be subjected to judicial
review?
II. Whether deprivation of floor test is in blatant violation of constitution under
365?
Arguments Advanced -Respondents-
Arguments Advanced -Respondents-

SUMMARY OF ARGUMENTS

I. POWER UNDER ARTICLE 356 IS AN EMERGENCY POWER TO BE

EXERCISED RARELY. THE PRINCIPLES RELATING TO JUDICIAL
REVIEW OF ACTION UNDER ARTICLE 356 ARE WELL SETTLED. THE
MATERIAL AND THE AVERMENTS ARE CLEARLY INSUFFICIENT TO
SUSTAIN THE NOTIFICATION UNDER ARTICLE 356.

This is a case where all canons of propriety were thrown to winds and the undue haste made by
the governor in inviting the president to issue the proclamation under article 356(1) clearly
smacked of mala fides. The power conferred by article 356 is a conditioned power and is not an
absolute power to be exercised in the discretion of the president. The condition is the formation
of satisfaction of the governor. In the sense, it is not really a power but an obligation cast upon
the president in the interest of preservation of constitutional government in the states. It is not a
power conceived to preserve or promote the interest of the political party in power in the centre
nor is it a weapon to strike your political opponents. Emergency means a situation, which is not
normal, a situation that calls for urgent remedial action and article 356 confers a power to be
exercised by the president in exceptional circumstances to discharge the obligation cast upon him
by article 355. It is a measure to protect and preserve the constitution. The court cannot merely
be an onlooker and a helpless spectator to such abuse of power, as it owes duty and responsibility
to defend the democracy. If the court, upon the material placed before it finds that the
satisfaction reached by the president is unconstitutional, highly irrational or without any nexus,
then the court would consider the content of the proclamation or reasons disclosed herein.
Proclamation may be declared unconstitutional if it was on either wholly irrelevent ground or
colourable exercise of power. Judicial review is not concerned with the merits of the decision but
with the decision making process

 THE FLOOR TEST IS THE ONLY TEST WHEN IT COMES TO ASSESSING

THE QUESTION WHETHER A PERSON COMMANDS THE MAJORITY AND
THE CONFIDENCE OF THE HOUSE.
Arguments Advanced -Respondents-

In all cases where the support to the ministry is claimed to have been withdrawn by some
legislators, the proper course of testing the strength of the ministry is holding the test on the floor
of the house. That alone is the constitutionally ordained forum for seeking openly and
objectively the claims and counterclaim in that behalf the assessment of the strength of the
ministry is not a matter of private opinion of any individual, be it the governor or the president. It
is capable of being demonstrated and ascertained publically in the house. Hence when such
demonstration is possible, it is not open to bypass it and instead depend upon the subjective
satisfaction of the governor or the president. Such private assessment is an anathema to the
democratic principle apart from being open to serious objections of personal malafides.
Wherever a doubt arises whether the council of ministers as lost the confidence of the hours, the
only way of testing it is on the floor of the house except in an extraordinary situation where
because of all pervasive violence, the governor concludes and records the sae in his report.
Arguments Advanced -Respondents-

ARGUMENTS ADVANCED

I. THAT THE POWER OF THE PRESIDENT UNDER ARTICLE 365 CAN BE

SUBJECTED TO JUDICIAL REVIEW.

It is humbly submitted before this Hon’ble Court that the power of the president under article
365 can be subjected to judicial review.
The respondent would submit that the power under Article 356 is an emergency power to be
exercised rarely. It is an exceptional power. He would submit that the principles relating to
judicial review of action under Article 356 are well settled having regard to the judgments of the
Apex Court in the case of S.R. Bommai & others vs. Union of India & others1 as also in the case
of Rameshwar Prasad & others (VI) vs. Union of India & another2.
The counsel would like to refer to Judgement in Bommai’s case : It is in the light of these other
provisions relating to the emergency that we have to construe the provisions of Article 356. The
crucial expressions in Article 356(1) are - if the President, "on the receipt of report from the
Governor of a State or otherwise" "is satisfied" that "the situation has arisen in which the
Government of the State cannot be carried on" in accordance with the provisions of the
Constitution". The conditions precedent to the issuance of the Proclamation, therefore, are: (a)
that the President should be satisfied either on the basis of a report form the Governor of the

1
S.R. Bommai and ors. v. Union of India and ors.,(1994) 3 S.C.C. 1.
2
Rameshwar Prasad and ors. v. Union of India and ors. (2006),2 S.C.C. 1.
Arguments Advanced -Respondents-

State or otherwise, (b) that in fact a situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of the Constitution. In other words, the
President's satisfaction has to be based on objective material.
Chief justice in Bommai’s case observed : “Whether it is 'subjective' or 'objective' satisfaction of
the President or it is his 'discretion' or 'opinion', this much is quite clear that the President cannot
exercise this powers under the Constitution on wish or whim. He has to have facts,
circumstances which can lead a person of his status to form an intelligent opinion requiring
exercise of discretion of such a grave nature that the representative of the people who are
primarily entrusted with the duty of running the affairs of the State are removed with a stroke of
the pen. His action must appear to be called for and justifiable under the Constitution if
challenged in a Court of Law. No doubt, the Courts will be chary to interfere in his 'discretion' or
formation of the 'opinion' about the 'situation' but if there be no basis or justification for the order
under the Constitution, the Courts will have to perform their duty cast on them under the
Constitution. While doing so, they will not be entering in the political arena for which appeal to
electorate is provided for.”
In State of Rajasthan and Ors. v. Union of India3 , Bhagwati, J. on behalf of Gupta, J. and
himself, while dealing with the "satisfaction of the President" prior to the issuance of the
Proclamation under Article 356(1) stated as follows: “So long as a question arises whether an
authority under the Constitution has acted within the limits of its power or exceeded it, it can
certainly be decided by the Court. Indeed it would be its Constitutional obligation to do so....
From these authorities, one of the conclusions which may safely be drawn is that the exercise of
power by the President under Article 356(1) to issue Proclamation is subject to the judicial
review at least to the extent of examining whether the conditions precedent to the issuance of the
Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny
as to whether there existed material for the satisfaction of the President that a situation had arisen
in which the Government of the State could not be carried on in accordance with the provisions
of the Constitution. Needless to emphasise that it is not any material but material which would
lead to the conclusion that the Government of the State cannot be carried on in accordance with
the provisions of the Constitution which is relevant for the purpose. It has further to be
remembered that the Article requires that the President "has to be satisfied" that the situation in

3
State of Rajasthan and ors. v. Union of India, [1978]1SCR1.
Arguments Advanced -Respondents-

question has arisen. Hence the material in question has to be such as would induce a reasonable
man to come to the conclusion in question. The expression used in the Article is "if the President
is satisfied".
Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President de
hors the material but a legitimate inference drawn from the material placed before him which is
relevant for the purpose. In other words, the President has to be convinced of or has to have
sufficient proof of information with regard to or has to be free from doubt or uncertainty about
the state of things indicating that the situation in question has arisen. Although, therefore, the
sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn
from such material is certainly open to judicial review.
It will be an inexcusable error to examine the provisions of Article 356 from a pure legalistic
angle and interpret their meaning only through jurisdictional technicalities. The Constitution is
essentially a political document and provisions such as Article 356 have a potentiality to unsettle
and subvert the entire constitutional scheme. The exercise of powers vested under such
provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional
balance lest the Constitution is defaced and destroyed. This can be achieved even without
bending much less breaking the normal rules of interpretation, if the interpretation is alive to the
other equally important provisions of the Constitution and its bearing on them. Democracy and
federalism are the essential features of our Constitution and are part of its basic structure. Any
interpretation that we may place on Article 356 must, therefore help to preserve and not subvert
their fabric. The power vested de jure in the President but de facto in the Council of Ministers
under Article 356 has all the latent capacity to emasculate the two basic features of the
Constitution and hence it is necessary to scrutinise the material on the basis of which the advice
is given and the President forms his satisfaction more closely and circumspectly. This can be
done by the Courts while confining themselves to the acknowledged parameters of the judicial
review as discussed above viz., illegality, irrationality and mala fides. Such scrutiny of the
material will also be within the judicially discoverable and manageable standards.
Justice Jeevan Reddy said in Bommai’s case4 : “We have no hesitation in rejecting the said
approach as totally inconsistent with the ethos of our Constitution, as would be evident from the
discussion infra.”

4
S.R. Bommai and ors. v. Union of India and ors,(1994) 3 SCC 1.
Arguments Advanced -Respondents-

In A.K. v. Union of India5, that "the 44th Constitution Amendment Act leaves no doubt that
judicial review is not totally excluded in regard to the question relating to the President's
satisfaction.
In State of Rajasthan and Ors. v. Union of India6, Bhagwati, J. on behalf of Gupta, J. and
himself, while dealing with the "satisfaction of the President" prior to the issuance of the
Proclamation under Article 356(1) stated as follows: “So long as a question arises whether an
authority under the Constitution has acted within the limits of its power or exceeded it, it can
certainly be decided by the Court. Indeed it would be its Constitutional obligation to do so....
This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate
task of determining what is the power conferred on each branch of Government, whether it is
limited, and if so, what are the limits and whether any action of that branch transgresses such
limits. It is for this Court to uphold the Constitutional values and to enforce the Constitutional
limitation. That is the essence of the Rule of Law.
From these authorities, one of the conclusions which may safely be drawn is that the exercise of
power by the President under Article 356(1) to issue Proclamation is subject to the judicial
review at least to the extent of examining whether the conditions precedent to the issuance of the
Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny
as to whether there existed material for the satisfaction of the President that a situation had arisen
in which the Government of the State could not be carried on in accordance with the provisions
of the Constitution. Needless to emphasise that it is not any material but material which would
lead to the conclusion that the Government of the State cannot be carried on in accordance with
the provisions of the Constitution which is relevant for the purpose. It has further to be
remembered that the Article requires that the President "has to be satisfied" that the situation in
question has arisen. Hence the material in question has to be such as would induce a reasonable
man to come to the conclusion in question.
Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President de
hors the material but a legitimate inference drawn from the material placed before him which is
relevant for the purpose. In other words, the President has to be convinced of or has to have
sufficient proof of information with regard to or has to be free from doubt or uncertainty about

5
A.K. v. Union of India, A.I.R. 1982 S.C. 710.
6
State of Rajasthan and Ors. v. Union of India, [1978]1SCR1.
Arguments Advanced -Respondents-

the state of things indicating that the situation in question has arisen. Although, therefore, the
sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn
from such material is certainly open to judicial review.
It will be an inexcusable error to examine the provisions of Article 356 from a pure legalistic
angle and interpret their meaning only through jurisdictional technicalities. The Constitution is
essentially a political document and provisions such as Article 356 have a potentiality to unsettle
and subvert the entire constitutional scheme. The exercise of powers vested under such
provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional
balance lest the Constitution is defaced and destroyed. This can be achieved even without
bending much less breaking the normal rules of interpretation, if the interpretation is alive to the
other equally important provisions of the Constitution and its bearing on them. Democracy and
federalism are the essential features of our Constitution and are part of its basic structure. Any
interpretation that we may place on Article 356 must, therefore help to preserve and not subvert
their fabric. The power vested de jure in the President but de facto in the Council of Ministers
under Article 356 has all the latent capacity to emasculate the two basic features of the
Constitution and hence it is necessary to scrutinise the material on the basis of which the advice
is given and the President forms his satisfaction more closely and circumspectly. This can be
done by the Courts while confining themselves to the acknowledged parameters of the judicial
review as discussed above viz., illegality, irrationality and mala fides. Such scrutiny of the
material will also be within the judicially discoverable and manageable standards.”
The power conferred by Article 356(1) upon the President is of an exceptional character
designed to ensure that the government of the States is carried on in accordance with the
Constitution. Any misuse or abuse of this power is bound to play havoc with our constitutional
system. Having regard to the form of government we have adopted, the power is really that of
the Union Council of Ministers with the Prime Minister at its head. In absence, it is not really a
power but an obligation cast upon the President in the interest of preservation of constitutional
government in the States. It is not a power conceived to preserve or promote the interests of the
political party in power at the center for the time being nor is it supposed to be a weapon with
which to strike your political opponent. The very enormity of this power - undoing the will of the
people of a State by dismissing the duly constituted government and dissolving the duly elected
Legislative Assembly - must itself act as a warning against its frequent use or misuse, as the case
Arguments Advanced -Respondents-

may be. Every misuse of this power has its consequences which may not be evident immediately
but surface in a vicious form a few years later. Sow a wind and you will reap the whirlwind.
Wisdom lies in moderation and not in excess.
The court will not lightly presume abuse or misuse. The court would, as it should, tread wearily,
making allowance for the fact that the President and the Union Council of Ministers are the best
judges of the situation, that they alone are in possession of information and material - sensitive in
nature sometimes -and that the Constitution has trusted their judgment in the matter. But all this
does not mean that the President and the Union Council of Ministers are the final arbiters in the
matter or that their opinion is conclusive. The very fact that the founding fathers have chosen to
provide for approval of the proclamation by the Parliament is itself a proof of the fact that the
opinion or satisfaction of the President (which always means the Union Council of Ministers
with the Prime Minister at its head) is not final or conclusive.Power under Article 356(1) is an
emergency power but it is not an absolute power. Emergency means a situation which is not
normal, a situation which calls for urgent remedial action.
Thus, it is open to the Court, in exercise of judicial review, to examine the question whether the
Governor’s report is based upon relevant material or not.

II. THAT THE DEPRIVATION OF FLOOR TEST IS IN BLATANT VIOLATION OF

CONSTITUTION UNDER ARTICLE 356.

It is humbly submitted before this Hon’ble Court that the deprivation of floor test is in blatant
violation of constitution under article 356, considering the facts in the present case.
The crucial expressions in Article 356(1) are - if the President, "on the receipt of report from the
Governor of a State or otherwise" "is satisfied" that "the situation has arisen in which the
Government of the State cannot be carried on "in accordance with the provisions of the
Constitution". The conditions precedent to the issuance of the Proclamation, therefore, are:
(a) that the President should be satisfied either on the basis of a report form the Governor of the
State or otherwise,
Arguments Advanced -Respondents-

(b) that in fact a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of the Constitution.7
In other words, the President's satisfaction has to be based on objective material. Further, the
objective material so available must indicate that the Government of the State cannot be carried
on in accordance with the provisions of the Constitution. Thus the existence of the objective
material showing that the Government of the State cannot be carried on in accordance with the
provisions of the Constitution is a condition precedent before the President issued the
Proclamation. Once such material is shown to exist, the satisfaction of the President based on the
material is not open to question.8
In the present case, there is no material whatsoever except the ipse dixit of the Governor. The
action which results in preventing a political party from staking claim to form a Government
after election, on such fanciful assumptions, if allowed to stand, would be destructive of the
democratic fabric as Democracy and federalism are the essential features of our Constitution and
are part of its basic structure. Any interpretation that we may place on Article 356 must,
therefore help to preserve and not subvert their fabric.9 The power vested de jure in the President
but de facto in the Council of Ministers under Article 356 has all the latent capacity to
emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the
material on the basis of which the advice is given and the President forms his satisfaction more
closely and circumspectly.
It is one thing to come to the conclusion that the majority staking claim to form the Government,
would not be able to provide stable Government to the State but it is altogether different thing to
say that they the government has lost majority, therefore, their claim to form the Government
cannot be accepted. In the latter case, the matter may have to be left to the wisdom and will of
the people, either in the same House it being taken up by the opposition or left to be determined
by the people in the elections to follow, thus by directing a Floor Test. 10
Without highly cogent material, it would be wholly irrational for constitutional authority to deny
the claim made by a majority to form the Government only on the ground that the party has lost
the majority just because some of its members have defecated. The extra-ordinary emergency

7
Barium Chemicals Ltd. and Anr. v. The Co. Law Board and Ors. [1966] Supp. 3 S.C.R. 31.
8
M.A. Rashid and Ors.v. State of Kerala, (1975) 2 S.C.R. 93.
9
Durga Das Basu, Commentary on the Consitutuion of India (8th ed. ButterWorths Wadhwa 2012).
10
Union of India v.Sh. Harish Chandra Singh Rawat and Anr., (2016) S.C.C. OnLine S.C. 442.
Arguments Advanced -Respondents-

power of recommending dissolution of a Legislative Assembly is not a matter of course to be

resorted to for good governance or cleansing of the politics for the stated reasons without any
authentic material. These are the matters better left to the wisdom of others including opposition
and electorate.11
Thus, if there is no such objective material before the President, or the material before him
cannot reasonably suggest that the Government of the State cannot be carried on in accordance
with the provisions of the Constitution, the Proclamation issued is open to challenge.
Thus, it is contended in the present case, that the ruling APP at the Centre, in pursuance of its
scheme to overthrow the Government of the State, as it slogan is “ANP free Apelonia” decided
to take recourse to the emergency provisions contained in Article 356 of the Constitution in its
desperation to topple the Government in the state.
Further, a doctored video on the basis of a purported sting operation was released and thus it is
contended that it was to portray a case for imposition of President's Rule. Also, the contents of
the video tended to show that the respondent indulged in horse trading, it is submitted that it is
absolutely preposterous, as the veracity of the video was in dispute and completely
unauthenticated. Moreover, by the recordings of the assembly submitted to the Governor of the
state were broadcasted on a news channel and published in various newspapers which is the
direct infringement of the privileges of the house, thus the imposition of the presidents rule
should be quashed.
Further, it is submitted that power under Article 356 is an emergency power to be exercised
rarely. It is an exceptional power. The floor test is the only test when it comes to assessing the
question whether a person commands the majority and the confidence of the House. Thus this is
a case which involves a double whammy. It is an extra-ordinary case, where, by the impugned
Proclamation, a blow has been dealt, unconstitutional as it is, to the powers of the Speaker on the
one hand and, on the other hand, to the authority of the Governor himself. Expatiating on this
point, it is submitted that the Proclamation was directed against the power validly wielded and
exercised by the Speaker under the Tenth Schedule and the attempt was to deprive him of his
legitimate power. 12

11
Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1.
12
S.R. Bommai v. Union of India, (1989) S.C.C. OnilneKar. 25.
Arguments Advanced -Respondents-

The expression used in the Article is "if the President is satisfied". The word "satisfied" has been
defined in 4. To furnish with sufficient proof or information, to set free from doubt or
uncertainty, to convince; 5.To answer sufficiently [an objection, question]; to fulfil or comply
with [a request]; to solve [a doubt, difficulty]; 6.To answer the requirements of [a state of things,
hypothesis, etc.]; to accord with [conditions].13
Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President de
hors the material but a legitimate inference drawn from the material placed before him which is
relevant for the purpose. In other words, the President has to be convinced of or has to have
sufficient proof of information with regard to or has to be free from doubt or uncertainty about
the state of things indicating that the situation in question has arisen. 14
In regard to the issue that the Appropriation Bill had not been passed on the basis of division of
votes, which was demanded by the 33 MLAs, including 9 rebel ANP legislators by a written
communication addressed to the Governor, it is humbly submitted that having regard to the role
of the Governor, forwarding the application to the Speaker asking him to hold voting by division
and about video graphing the entire affair, it was completely unauthorised in law. Attention to
Articles 174, 175 & 176 of the Constitution of India is drawn. Under Article 174, the Governor
has three distinct roles. He is to summon the Assembly; thereafter, he has power to prorogue;
and, finally, he has power to dissolve the House. The Governor is expected to act on the advice
of the Council of Ministers, except in matters, where, under the Constitution, a discretion is
vested in him. Equally, he may enjoy a discretionary authority when the same is lodged in him
under a statute. Otherwise, he is essentially a figurehead. The executive power is to be exercised
actually by the Council of Ministers. The Governor has, actually, no legislative power. It is
submitted that never before in the history of independent India has resort been made to Article
356 purporting to short-circuit the floor test ordered by the Governor and also seeking to torpedo
the authority of the Speaker under the Tenth Schedule.15
Floor test is the only and the surest way and, the earlier the floor test is done, the chances of
horse trading could be obviated. In this connection, he has a case that the date fixed, i.e.
28.08.2016 was reasonable. It is submitted that while a writ applicant can ordinarily be told off
the gates if his conduct does not match with that of a person seeking discretionary and extra-

13 Shorter Oxford English Dictionary [3rd Edition] at page 1792.

14 Mahoharan v. State, (1997) S.C.C. Online Mad. 261
15
Union of India & others v. ValluriBasavaiahChowdhary and others, (1979) 3 S.C.C. 324.
Arguments Advanced -Respondents-

ordinary relief under Article 226, the present respondent may not be thrown out. Democracy,
with all its faults, is the system of Government, which the people of India have embraced under
the written Constitution. There may be pitfalls; but howsoever imperfect it may be, it remains the
best possible form of Government. In the context of the need to uphold the values of democracy
as also the upkeep of the ideal of federalism, considering this, it is submitted that the Hon’ble
Court should not upheld the rule imposed, just on the basis of a disputed sting operation as it is
also important to notice that the principle that a person cannot take advantage of his own wrong
must also be borne in mind.16
Thus, as Power under Article 356(1) is an emergency power but it is not an absolute power.
Emergency means a situation which is not normal, a situation which calls for urgent remedial
action. Article 356 confers a power to be exercised by the President in exceptional circumstances
to discharge the obligation cast upon him by Article 355. It is a measure to protect and preserve
the Constitution. Power under Article 356 is conditional, the condition being formation of
satisfaction of the President as contemplated by Article 356(1).The drastic and extreme action
under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the
Governor17, in the instant case as none of the grounds are met, the status quo in the state should
be maintained and the floor test be conducted.

16
ArjunMunda v. Governor of Jharkhand, (2005) 3 S.C.C. 399.
17
3 Dr. L.M. Singhvi, Constitution of India (3rd ed. Thomas Reuters 2013).
Arguments Advanced -Respondents-

PRAYER
In the light of arguments advanced and authorities cited, the Appellants/ Petitioner humbly
submit that the Hon’ble Court may be pleased to adjudge and declare that:
 THE PROCLAMATION DATED 27.03.2016 ISSUED UNDER ARTICLE 356
WILL STAND QUASHED.
 DIRECT THAT STATUS QUO, AS ON THE DATE OF THE PROCLAMATION,
MUST NECESSARILY BE RESTORED.
Any other order as it deems fit in the interest of equity, justice and good
conscience.
Sd/-

(Counsels for the Respondents)

Arguments Advanced -Respondents-