bommai case appellant

SHRI SHIVAJI MARATHA SOCIETYS LAW COLLEGE, PUNE-411002 MOOT-COURT- II (2014-2015)CASE NAME: S. R. Bommai VS UNION OF INDIA (Civil appeal no. 3645 of 1989)[1994] 2 SCR: 644, AIR 1994 SC 1918(1994)3 SCC 1 SUBMITTED ON BEHALF OF APPELLANTS BYNAME : MR. GHANASHYAM SHINDECLASS : LLB IIIROLL NO : DATE OF SUBMISSION : SEPTEMBER 6, 2014PLACE : PUNE Memorial on the behalf of Appellant

Contents 1. Vakalatnama 2. Statement of Jurisdiction3. Statement of Facts4. Statement of Issues5. Arguments Advanced6. Prayer 7. The Index of Authorities8. List of Abbreviations9. Bibliography

Memorial on the behalf of Appellant Statement Of Jurisdiction

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a court subordinate to another state High Court. The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgment, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies accordingly.Honble Supreme Court has jurisdiction to hear this case under Article 132 of the Constitution. Memorial on the behalf of Appellant Statement of facts 1. TheJanata Partybeing the majority party in theState Legislaturehad formed Government under the leadership ofS.R. Bommai.

2. In September 1988, the Janata Party and Lok Dal merged into a new party called Janata Dal. The Ministry was expanded with addition of 13 members. 3. Within two days thereafter, one K.R. Molakery, a legislator of Janata Dal defected from the party. He presented a letter to the Governor along with 19 letters, allegedly signed by legislators supporting the Ministry, withdrawing their support to the Ministry.

4. As a result on 19 April, the Governor sent a report to the President stating therein there were dissensions and defections in the ruling party.

5. He further stated that in view of the withdrawal of the support by the said legislators, the chief Minister, Bommai did not command a majority in the Assembly and, hence, it was inappropriate under the Constitution, to have the State administered by anexecutiveconsisting ofCouncil of Ministerswhich did not command the majority in thestate assembly.

6. He, therefore, recommended to the President that he should exercise power under Article 356(1).

7. However on the next day seven out of the nineteen legislators who had allegedly written the said letters to the Governor sent letters to him complaining that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry.

Memorial on the behalf of Appellant

8. The Chief Minister and his Law Minister met the Governor the same day and informed him about the decision to summon the Assembly, even by bringing forward the scheduled session, to prove the confidence of assembly in his government. To the same effect, he sent a telex message to the President.

9. The Governor however sent yet another report to the President on the same day i.e., 20-4-1989, and stated that the Chief Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356(1).

10. On that very day, the President issued the Proclamation in question with the recitals already referred to above. The Proclamation was, thereafter approved by the Parliament as required by Article 356(3).

11. Awrit petitionwas filed on 26 April 1989 challenging the validity of the proclamation. A special bench of 3 judges of Karnataka High Courtdismissed the writ petition.

12. The writ petition was filed in the Supreme Court against the Order of Karnataka High Court by appellant.

Memorial on the behalf of Appellant Statement of Issue

1) Whether the Presidential Proclamation under Art. 356 of Indian Constitution justiciable or not and if yes to what extent?

2) What is the nature of the Presidential satisfaction and whether the president has unfettered powers to issue Proclamation under Art. 356 (1) of the Constitution?

Memorial on the behalf of Appellant Arguments Advanced 1) Whether the Presidential Proclamation under Art. 356 of Indian Constitution justiciable or not and if yes to what extent? i) The Presidential Proclamation may be justiciable in certain cases subject to Article 74 of the Indian Constitution. InA. Sreeramulu Re, a single judge of the Andhra Pradesh High Court, Justice Chinnappa Reddy, held that a Presidential proclamation issued under Article 356 is not susceptible to judicial review because the issue of the President's satisfaction under Article 356 is basically a political issue, the Constitution does not enumerate the situations where President's rule can be imposed and there are no "satisfactory criteria for a judicial determination" of what are relevant considerations for invoking the power under Article 356. Consequently the question is intrinsically political and beyond the reach of the Courts. Moreover, any attempt to settle a controversy raised by a proclamation under Article 356 will necessarily be followed by tremendous consequences. The very vastness of those consequences makes it "impolitic or inexpedient" for a Court to assume jurisdiction. On the assumption that there is limited power of judicial review the Court held that there was sufficient justification for the President's proclamation.

Memorial on the behalf of Appellantii) In the case of State of Rajasthan Vs. Union of India, SC held that Article 356 involved essentially a political question and rejected the contention of it was not amenable to judicial determination.SC further held that The satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the government of the State cannot be carried on in accordance with the provisions of the Constitution. So one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it.

iii) Presidential proclamation issued under Article 356 of the Constitution is not completely beyond judicial review. Mala fides intention provides a ground for judicial interference. So there must be some check i.e. judicial review to avoid misuse of imposition of President Rule.iv) In Case of Rameshwar Prasad Vs. State of Bihar, SC held that what ultimately determines the scope of judicial review is the facts and circumstances of the given case. SC further held that judicial review even further extends to the examining of governors report.


2) What is the nature of the Presidential satisfaction and whether the president has unfettered powers to issue Proclamation under Art. 356 (1) of the Constitution?

: i) In the case of State of Rajasthan Vs. Union of India, SC held that the satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the government of the State cannot be carried on in accordance with the provisions of the Constitution.

ii) The powers of President under Art. 356 (1) are not absolute but conditional. President may impose proclamation subject Article 356 of the Constitution.

Article 356 of the constitution reads as under: Provisions in case of failure of constitutional machinery in State Article 356(1)If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation Memorial on the behalf of Appellant

Article 356(1) (a)Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State;

Article 356 (1) (b)Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament

Article 356 (1) (c) Make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this constitution relating to anybody or authority in the State Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.So President can impose Presidential Proclamation only if he satisfies that Constitutional machinery has been failed in the state.


Prayer

It is here in after the Appellants prayer before this Honble court that in the light of facts, issue raised, argument advanced, authorities cited, the Honble court may requested to,1) Set aside the President Proclamation as imposed by the President of India in the State.

2) To revive the state assembly.

Memorial on the behalf of Appellants

The Index of Authorities

Cases:

1. State of Rajasthan Vs. Union of India (AIR 1977, SC)

2. Rameshwar Prasad Vs. Union of India (AIR 206, SC 980)

Rules and Regulations:1. Article 74 of the Constitution of India and Justiciability of advice of council of ministers to President 2. Sarkaria Commission on central state relations.


List of Abbreviations.

A.I.R : All India Reporters.

Sec : Section. Art. : Article SC : Supreme Court SCR : Supreme Court Reports SCC : Supreme Court Cases


Bibliography

President Rule: Limits and Checks : A. G. NooraniConstitution of India : M.P.Jain

Websites:1. www.indinkanoon.com2. www.supremecourtcaselaw.com3. www.wikipedia.com4. www.lawsofindia.com5. www.lawforum.com 6. www.supremecourtofindia.nic.in


bommai case appellant

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