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VARSHA (APPELLANT)
V.
STATE OF ODISHA (RESPONDENT)

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE HIGH COURT OF ODISHA

[MEMORIAL FOR THE RESPONDENT]

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TABLE OF CONTENTS

LIST OF
ABBREVIATIONS………………………………….…………2
LIST OF
AUTHORITIES………………………………………………..3
STATEMENT OF
JURISDICTION………………………………………………..4

STATEMENT OF
FACTS…………………………………………………………..5
ARGUMENT
SUMMERY
……………………………………………………………………7
ARGUMENTS
ADVANCED…………………………………..……...................8
PRAYER FOR
RELIEF…………………………………….……………………15
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LIST OF ABBREVIATIONS

 AIR : All India Reporter

 Edn. : Edition.

 Hon’ble : Honourable

 P. : Page

 SC : Supreme Court.

 SCC : Supreme Court Cases

[MEMORIAL FOR THE RESPONDENT]

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INDEX OF AUTHORITIES

STATUTES
Article 143 of Indian Constitution
BOOKS
Constitution Law of India by J.N Pandey
Constitution of India by Durga Das Basu
The Indian Constitution by Granvile Austin
CASES
Special Reference No. 1 of 2012, (2012) 10 SCC 1
Gujarat Assembly Election Matter, (2002) 8 JT 389
Samsher Singh vs. State of Punjab (AIR 1974 SC 2192)
R.C. Cooper vs. Union of India (AIR 1970 SC 564)
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STATEMENT OF JURISDICTION

This memorandum is submitted by the Union of India to

jurisdiction of this court exercisable under Article 143 of the
Constitution of India. It recites the factual circumstances of the
case and sets forth the laws appertaining to the case

[MEMORIAL FOR THE RESPONDENT]

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STATEMENT OF FACTS

(I) The 2024 General election were concluded by the ardent efforts
of the Election Commission of India
(II) Since none of the parties could get a clear majority in the
house, post-election alliances began to build up
(III) The Cold Fongress Party persuaded 14 other parties and
managed to carve out an alliance called the Nationalist Useless
Alliance.
(IV) The foundation of the alliance leaned on 3 CM’s i.e. Ms. Kia
of the KSP, Ms. Lia of the TNAIMK, and Ms. Mia of the
Dwinamool Congress.
(V) The first two of the aforementioned parties got 5 berths in the
Union Cabinet and Dwinamool Congress demanded its candidate
to be named as the NUA candidate for the Presidential Polls, 2024
(VI) All the political calculations being said and done, the NUA
candidate, Mr. Arunobh Panerjee took the oath of office of the
President of India on 21 November, 2024, who was a well
respected politician and a man revered for his integrity and
impartiality
(VII) After assuming office, the Cabinet recommended the name of
Wyond Chindi to be appointed as the Comptroller and Auditor
General of India
(VIII) The unanimous decision of the Union Cabinet was conveyed
by the Cabinet Secretary and PMO to the Secretary to the President
of India on 4.12.2024
(IX) The President objected to this recommendation and voiced his
dissent to the appointment on 18.12.2024, on the ground that
Chindi was the Defence Secretary during the controversial M-18
Tank deal with France, which was being audited by the CAG and it
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would be in the interest of the institution of the CAG that he not be

considered for the position.
(X) By calling an emergency meeting on 20.12.2024, the Union
Cabinet reiterated the recommendation of appointment of Mr.
Chindi as the CAG of India
(XI) The President went on to appoint under his warrant and seal
Mr. S.K. Crynger as the Comptroller and Auditor General, who
was distinguished IAS officer and was nominated best civil servant
in the year 2019 which added to his string of credentials although
this was against the will of the Cabinet
(XII) The Union of India then filed a reference to the Supreme
Court of India under Article 143 of the Constitution of India
through the Attorney General of India on 2.1.2005
(XIII) The question raised was whether the President is bound by
the aid and advice of the council of ministers represented by the
Cabinet
(XIII) The President represented by the Secretary has filed an
affidavit stating that the reference was malafide and was made with
a motive to stall a constitutional appointment and that the President
was not consulted before the reference was made which is humbly
submitted to be contrary to the constitutional provisions and has no
force of law
(XIV) In respect of such integral question of law involving
democratic set up of the country this reference has been preferred.
To the Supreme Court

[MEMORIAL FOR THE RESPONDENT]

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STATEMENT OF ISSUES

Issue 1: Whether the reference is maintainable or not?

Issue 2: Whether the President is bound by the aid and advice of

the Council of Ministers represented through the cabinet?
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Summary of Arguments

1. Whether the reference is maintainable or not?

» Yes the reference is maintainable. The power of the President for
referring to the Supreme Court, any matter where a substantial
question of law has arisen, is provided under Article 143 of the
Constitution of India. The situation in which the reference can be
made is when a question of law has arisen and is of public
importance and it is expedient for obtaining the opinion of the court.
The reference shall be made in the name of the President of India.
But the President has to act under the aid and advice of the Council
of Minister. This is provided under Article 74 of the Constitution of
India. So the reference made by the Cabinet in the name of the
President is valid as the executive power of the Union is indirectly
exercised by the Cabinet and the President just warrants such
exercise under his hand and seal.

2. Whether the President is bound by the aid and advice of the

Council of Ministers represented through the cabinet?
» Yes the president is bound by the aid and advice of the council of
Ministers. Article 74 specifically deals with the answer to this issue.
The heading of the Article itself goes on to say that the President
shall act under the aid and advice of the Council of Ministers. The
Article says that the executive power, that the President exercises, is
exercised under the advice of the Council of Ministers. The Article
goes on to say that even if the advice is sent back for reconsideration,
and the Council of Ministers sends it back, the President shall have
to abide by the advice. Our democracy, being a Parliamentary
Democracy, the President is just a jewel head. All the policy
decisions taken under the seal of the President are actually the
handmaid of the Union Cabinet.

[MEMORIAL FOR THE RESPONDENT]

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Arguments Advanced

Issue 1: Whether the reference is maintainable or not?

» (I) Article 143 of the Constitution provides as follows:

143. Power of President to consult Supreme Court.—

(1)
If at any time it appears to the President that a question of law or
fact has arisen, or is likely to arise, which is of such a nature and of
such public importance that it is expedient to obtain the opinion of
the Supreme Court upon it, he may refer the question to that Court
for consideration and the Court may, after such hearing as it thinks
fit, report to the President its opinion thereon.
(2)
The President may, notwithstanding anything in 2[***] the proviso
to article 131, refer a dispute of the kind mentioned in the 3[said
proviso] to the Supreme Court for opinion and the Supreme Court
shall, after such hearing as it thinks fit, report to the President its
opinion thereon.

(II) This power of the President comes under the Advisory

Jurisdiction of the Supreme Court. The apex court is the highest
forum. Any decision of this court has binding effect in the entire
territory of the country. Such is the legal value of this institution.
So in case any legal loopholes or question relating to any law
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comes before the government such can be referred to the SC for its
opinion. This is called the Presidential reference.

(IV) The respondent humbly submits that the President shall ask
the court to give its opinion on any subject wherein a question of
law has arisen and is of such nature that it touches the public
domain. The court shall then, after considering the question and
conducting such hearing as is necessary, report the President its
opinion.

(V) It is submitted that this is a highly discretionary jurisdiction.

The word “May” used indicate clearly that it is up to the President
as to whether it shall refer the case to the court or not. So is the
consideration an act of discretion. The SC may deny to report the
President on such opinion. But such denial must be supported by
strong, compelling and good reasons. 1
(VI) The reference to the President can be made if the following
two conditions are satisfied:
A question of law or fact has arisen or is likely to arise
The question is of such nature and such public importance that it is
expedient to obtain the court’s opinion on it

(VII) It is submitted that the court’s power to give reference is very

wide and covers all type of references. The court has held that it is
within its jurisdiction to advice the President on any questions
which have arisen or are likely to arise and is of public importance.
The question must not have been previously decided by the court.2

1
In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1
2
Gujarat Assembly Election Matter, (2002) 8 JT 389

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(VIII) The respondents humbly submit that every power of the

President is exercised under the aid and advice of the council of
Ministers. The council of Ministers u/a 74 have the power to aid
and advice the President in the exercise of his powers.
Article 74 provides as follows:
Council of Ministers to aid and advice President:
(1) There shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President who shall, in the exercise
of his functions, act in accordance with such advice.
[Provided that the President may require the Council of Ministers
to reconsider such advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after
such reconsideration.
(2) The question whether any, and if so what, advice was tendered
by Ministers to the President shall not be inquired into in any court.
(VIII) The respondent humbly submits that the President under the
Indian Democracy is a rubber stamp and all the powers are
exercised by the Union Cabinet under the warrant and seal of the
President of India. This power of referring a dispute being one of
the solemn powers of the President, it does requires consent of the
Union Cabinet.
(IX) The respondents submit that this power of reference is to be
exercised by the Union Cabinet inter- alia. 3So the Presidential
reference has to be given through the Cabinet. 4

3
In Re Special Reference, supra
4
M.P. Jain, Indian Constitutional Law, 19th ed.
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Issue 2: Whether the President is bound by the aid and advice of the
Council of Ministers represented through the cabinet?

(I) India is a Parliamentary democracy as opposed to a Presidential

Democracy where the President assumes wide and far reaching
powers. In India the Parliament is concentration of the rule making
power and executive is answerable to it for its acts and omissions.5
(II) Article 74 is a statutory imposition of this rule. Article 74 of
the Indian Constitution says about the aid and advice by the
Council of Ministers to the President of India. Article 74 says that
the President is to act on the aid and advice of the council of
Ministers. The words of the article are aforementioned.
(III) The position of the President is a rubber stamp and jewel head
in the Indian Democratic Republic. The President has wide powers
but curtailed by the singular article 74. This provision in the
Constitution is what differentiates the American Democracy to its
Indian counterpart. The President has to exercise his function as the
executive head, but the exercise is never of his volition. Thus the
President just acts as a speech retractor to the policy decisions of
the Union Cabinet.6
(IV) It is submitted that in the debate of the Constitutional
Assembly, Dr. B.R Ambedkar spoke about the position of the
President that, he is the head of the state but the Council of
Ministers headed by the Prime Minister is the head of the state, the
latter having least discretionary powers.
(V) It is submitted that the President appoints the members of
judiciary headed by the Chief Justice of India, the Vice President,
the Attorney General, the Comptroller and Auditor General, the

5
D.D Basu, Comparative Constitutional Law, 20th ed.
6
H.M Seervai, Indian Constitution, Part-III, 19th ed.

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Chief Election Commissioner. In the present case we are dealing

with the appointment of the CAG of India.
(VI) Article 148 of the Constitution of India provides about the
Comptroller and Auditor General. The Article says as follows:
148. Comptroller and Auditor General (1) there shall be a
Comptroller and Auditor General of India who shall be appointed
by the President by warrant under his hand and seal and shall only
be removed from office in like manner and on the like grounds as a
Judge of the Supreme Court.
(2) Every person appointed to be the Comptroller and Auditor-
General of India shall, before he enters upon his office, make and
subscribe before the President, or some person appointed in that
behalf by him, an oath or affirmation according to the form set out
for the purpose in the Third Schedule.
(3) The salary and other conditions of service of the Comptroller
and Auditor-General shall be such as may be determined by
Parliament by law and, until they are so determined, shall be as
specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-
General nor his rights in respect of leave of absence, pension or age
of retirement shall be varied to his disadvantage after his
appointment.
(4) The Comptroller and Auditor-General shall not be eligible for
further office either under the Government of India or under the
Government of any State after he has ceased to hold his office.
(5) Subject to the provisions of this Constitution and of any law
made by Parliament, the conditions of service of persons serving in
the Indian Audit and Accounts Department and the administrative
powers of the Comptroller and Auditor-General shall be such as
may be prescribed by rules made by the President after consultation
with the Comptroller and Auditor-General.
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(6) The administrative expenses of the office of the Comptroller

and Auditor-General, including all salaries, allowances and
pensions payable to or in respect of the persons serving in that
office, shall be charged upon the Consolidated Fund of India.
(VII) The respondent submits to the court that President as the
article presupposes just appoints the CAG under his warrant and
seal. The actual selection of who shall be the CAG is the task of the
Union cabinet. The President’s powers are curtailed in these case to
a mere rubber stamp.
(VIII) In R.C. Cooper vs. Union of India7 the SC held that the
President being the constitutional head, works under the aid and
advice of the council of ministers. This includes the power to
promulgate ordinances as well.
(IX) In the case of Samsher Singh vs. State of Punjab8, the SC has
held that it is not correct to hold that the President is to be satisfied
personally in the exercise of his executive powers. The President is
just a formal constitutional head who just exercises the powers and
functions bestowed upon him on the aid and advice of the
constitution.
(X) In the light of the aforementioned cases and the constitutional
provision it is clear that the President should have appointed
Wynod Chindi as the CAG and not Mr. S.K Crynger. The
recommendation of the appointment was Chindi was advice the
second time and as per the provisions to the constitution, such
recommendation becomes binding on the President. So the
appointment of Mr. Crynger is patently unconstitutional.

7
AIR 1970 SC 564
8
AIR 1974 SC 2192

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Prayer

In light of the issues raised, arguments advanced and authorities

cited, the counsel for the Respondent humbly prays that the
Hon’ble Court be pleased to adjudge, hold and declare:
(I) To declare the appointment of Mr. S.K Crynger to the post of
CAG as unconstitutional and thus void
(II) To execute the appointment of Mr. Wynod Chindi as the CAG
And pass any order that this Hon’ble court may deem fit in the
interest of equity, justice and good conscience. And for this act of
kindness, the counsel for the respondent shall duty bound forever
pray

Sd/-
(Counsel for Respondent)