Yashwantrao Chavan Law Collge, Pune

Internal Moot Court Competition 2021-22

BEFORE HON’BLE HIGH COURT OF KALKI
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CIVIL ORIGINAL JURISDICATION

WRIT PETITION NO.__ OF 2022
____________________________________________________________
SHYAM SHINDE ………Petitioner

V.

STATE OF KALKI ………Respondent

____________________________________________________________

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS
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SR.NO. PARTICULARS PAGE NO.

1. List of Abbreviation 3

2. References 4

3 Statement of facts 6

4. Statement of Issues 7

5. Summary of Pleadings 8

6. Arguments Advanced 9

7. Prayer 15

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ABBREVATIONS
______________________________________________________

AIR ALL INDIA REPORTER

SCC SUPREME COURT CASES

ALL ALLAHABAD

Art. ARTICLE

SC SUPREME COURT

Sec SECTION

UOI UNION OF INDIA

v. VERSUS

GOVT. GOVERNMENT

HC HIGH COURT

Ors. OTHERS

RoB Rules of Business

& AND

Pg. PAGE

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REFERENCES
_______________________________________________________
____________________

CASES :
1. Nabam Rebia and Bamang Felix vs. Deputy Speaker, Arunachal Pradesh
Legislative Assembly & ors., reported in (2016) 8 SCC 1
2. Biman Chandra Bose vs. Dr. H.C. Mookerjee & ors., reported in AIR 1952
Calcutta 799
3. V. Venkateswar Rao (V.V. Rao) vs. The Government of Andhra Pradesh & ors.,
reported in 2012 SCC OnLine AP 286
4. Rameshwar Prasad & ors. (VI) vs. Union of India & anr., reported in (2006) 2
SCC 1,
5. W.P. (C) No. 176 of 2021 [Dr. Jagannath Shamrao Patil vs. Union of India & anr.
6. Jaipur Shahar Hindu Vikas Samiti vs. State of Rajasthan and others, reported in
(2014) 5 SCC 530,
7. Mrinali Shashi Shekhar Chakravorty vs. Election Commission of India, New
Delhi and another, reported in 2020 (4) Mh.L.J. 402
8. State of Bihar vs. Rai Bahadur Hurdut Roy Moti Lal Jute Mills & anr., reported in
AIR 1960 SC 378
9. Vidyasagar Singh vs. Krishna Ballabha Sahay & ors., reported in AIR 1965 Pat 321
10. ICICI Bank Ltd. & ors., reported in AIR 2006 All 239,
11. K.B. Nagur, M.D. (Ayurvedic) vs. Union of India, reported in (2012) 4 SCC438
12. Ranjana Agnihotri and others vs. State of Uttar Pradesh Chief Secretary
Government and others, reported in 2015 Indlaw ALL 404
13. K.K. Tripathi vs. State of U.P., reported in 2010 SCC OnLine All 573
14. B.R. Kapur vs. State of T.N. and another, reported in (2001) 7 SCC 231
15. M.P. Special Police Establishment vs. State of M.P. and others, reported in
(2004) 8 SCC 788
16. State of Gujarat & anr. vs. Justice R.A. Mehta (Retired) & ors., reported in (2013)
3 SCC 1
17. S.P. Gupta vs. Union of India, reported in 1981 Supp SCC 87

18. BOOKS :

A. MP JAIN, “INDIAN CONSTITUTIONAL LAW” 7TH EDITION REPRINT 2005, LEXIS NEXIS
B. Constitution on India By P.M. Bakshi
C. Bare Act of Constitution

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19. INTERNET SITES :

1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.lawsofindia.org
4. http://www.supremecourtcaselaw.com

5. REPORTS
The Sarkaria Commission, report to the Central Government in 1988

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STATEMENT OF FACTS

A) Kalki is one of the few Chalukya States the Legislature whereof has two houses,
i.e., the Legislative Assembly and the Legislative Council. The Legislative
Assembly is comprised of 288 members, who are chosen by direct election from
territorial constituencies in the State. Article 171(1) of the Constitution ordains
that the total number of members in the Legislative Council shall not exceed one-
third of the total number of members in the Legislative Assembly of that State
whereas, the proviso thereto, ordains that the number of members in any case
shall not be less than forty.

B) Clause (2) of Article 171 of the Constitution ordains that until Parliament by law
otherwise provides, the composition of the Legislative Council of a State shall be
as provided in clause (3).

C) Section 10 of the 1950 Act read with the Third Schedule thereof is the law enacted
by the Parliament, which now provides for the allocation of seats in the
Legislative Councils. In terms of such provision, the number of members of the
Legislative Council of Kalki shall be 78, of whom 22, 7, 7 and 30 members shall
be elected in terms of sub-clauses (a), (b), (c) and (d) of clause (3) of Article 171,
respectively, totalling 66. The remainder, i.e., 12 members are to be nominated by
the Governor in accordance with clause (5) of Article 171 of the Constitution.

D) The term of all the 12 members nominated earlier ended by efflux of time. By
June 16, 2020 all the seats were vacant. Resultantly, the Council of Ministers met
on October 29, 2021 and unanimously resolved to render appropriate aid and
advice to the Governor. In such meeting, the Council of Ministers decided to
recommend names of 12 individuals, who did not incur disqualification under
Article 191 of the Constitution, to the Governor for nomination in terms of clause
(5) of Article 171 thereof.

E) The Chief Minister of Kalki followed up this decision by forwarding, on

November 6, 2021, the names of the said 12 individuals to the Governor of Kalki
for such nomination.

F) Despite receipt of the names recommended by the Council of Ministers, which is

in the nature of advice, and several months having passed since then, it is claimed
that the Governor has not acted on such advice with the result that nomination of
12 members for composition of the Legislative Council in terms of the aforesaid
provisions could not be completed.

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STATEMENT OF ISSUES

That, the Counsel raises the following issues before the Hon’ble High Court;
1.WHETHER THE PETITION FILED BY THE PETITIONER IS MAINTAINABLE IN
THE EYES OF LAW?

2. WHETHER THE ACT OF GOVERNOR IN NOMINATING THE 12 MEMBERS OF

THE LEGISLATIVE COUNSIL IS DISCRETIONERY POWER OF HIM UNDER
CONSTITUTION OF CHALUKYA ?

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Summary of Pleading

1.WHETHER THE PETITION FILED BY THE PETITIONER IS

MAINTAINABLE IN THE EYES OF LAW?
It is humbly submitted before this court that this writ petition is not maintainable under
article 226 of the Constitution of Chalukya as the act of governor cannot be challenged
in the courts and it is not subject to judicial review thus cannot form the basis to avoid
the Constitutional bar under Article 361 of the Constitution without any further factual
foundation having been laid.

2. WHETHER, IN TERMS OF SECTION 10 OF THE 1950 ACT AND THE

THIRD SCHEDULE READ WITH CLAUSES (3)(E) AND (5) OF ARTICLE 171
OF THE CONSTITUTION, OR THE ROB FRAMED UNDER CLAUSE (3) OF
ARTICLE 166 OF THE CONSTITUTION, ANY DISCRETION IS AVAILABLE
TO THE GOVERNOR NOT TO NOMINATE MEMBERS OF THE
MAHARASHTRA LEGISLATIVE COUNCIL UPON RECEIPT OF THE
ADVICE OF THE COUNCIL OF MINISTERS?

It is humbly submitted before this court that there is no any such provision specified in
the constitution of Chalukya that there is any specified time within which the governor
should act in a specified matter. The persons who have been recommended for
membership of the Legislative Council are neither officially supposed to know of such
recommendation, till such time the Governor nominates them as such members based
on the advice of the Council of Ministers, nor do they
acquire any right to enforce a recommendation in their favour made by such council.
Without the requisite knowledge as well as the right to enforce the recommendations,
they would lack the locus standi to approach a Court seeking enforcement of such
recommendations. Even otherwise, qua the recommendees, enforcement of
recommendations of the present nature cannot be asked for by praying for a mandamus
to the Governor.

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ARGUMENTS ADVANCED

1.WHETHER THE PETITION FILED BY THE PETITIONER IS

MAINTAINABLE IN THE EYES OF LAW?

A) That, in W.P. (C) No. 176 of 2021 [Dr. Jagannath Shamrao Patil vs.
Union of India & anr.], being a writ petition under Article 32 of the
Constitution instituted before the Supreme Court in its 'Public Interest Litigation'
jurisdiction. The petitioner therein had claimed the following relief:
"a. Issue writ of mandamus / directions to the Respondents to act in
consonance with
the mandatory provision of the Art. 171(5) of the Constitution of India for
the purpose of the nominations of 12 persons as members of the
Maharashtra Legislative Council and frame the norms and / or the
specific criteria for the purpose of such nomination.

b. Issue writ of mandamus / directions to the Respondents to defer the

nominations
till the specific norms or the criteria as prayed above is framed and
approved by the office of the Hon'ble Governor or in the alternative it be
directed to make such nominations under its sole discretion without any
influence of the recommendation of the minister of councils of the
Respondent no.2.

c. During the pendency and final hearing of this writ petition the
respondent no.2 may kindly be directed to not to intervene in the process
of nomination so as to avoid the practice of nomination under political
considerations.

d. grant any other appropriate relief which this Hon'ble Court may deem
fit in the facts and circumstances of the case."
By an order dated July 2, 2021 of the Bench presided over by the Hon'ble the
Chief Justice of India, W.P. (C) No. 176 of 2021 was summarily rejected on the
ground that the Court was not inclined to entertain the same.
Therefore as this petition is based on the same facts and circumstances this
petition is also liable to be rejected.

B) That, a Public Interest Litigation would lie if members of the public, who are
deprived of their rights for varying reasons, are unable to approach the Court for

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enforcement of such rights. There any averment in the petition that the affected
people are unable to approach the Court, no foundation has been laid in the
petition as to why the Public Interest Litigation should be entertained. If at all, it
is either the State Government or the recommendees who could lay challenge to
the Governor's action or inaction, but the petitioner has no locus standi to so
challenge.

2. WHETHER, IN TERMS OF SECTION 10 OF THE 1950 ACT AND THE

THIRD SCHEDULE READ WITH CLAUSES (3)(E) AND (5) OF ARTICLE 171
OF THE CONSTITUTION, OR THE ROB FRAMED UNDER CLAUSE (3) OF
ARTICLE 166 OF THE CONSTITUTION, ANY DISCRETION IS AVAILABLE
TO THE GOVERNOR NOT TO NOMINATE MEMBERS OF THE KALKI
LEGISLATIVE COUNCIL UPON RECEIPT OF THE ADVICE OF THE
COUNCIL OF MINISTERS?

A) That in the matter of nomination under clauses (3)(e) and (5) of Article 171 of
the Constitution, Ranjana Agnihotri and others vs. State of Uttar
Pradesh Chief Secretary Government and others, reported in 2015
Indlaw ALL 404, the Governor is not bound by the advice of the Council of
Ministers and that he is to act in his own discretion.

B) That in the matter of K.K. Tripathi vs. State of U.P., reported in 2010
SCC OnLine All 573, wherein it has been held as under:

"We, therefore, do not intend to enter into this debate about the nature of
discretion, which is exercised by the Governor in the matter of
nomination of members to Legislative Council, in the given facts and
circumstances of the present case, but do observe that if the Governor is
to exercise his personal discretion in nominating the members, he can do
so on his own satisfaction, but assuming that such a discretion by the
Governor has to be exercised, on the aid and advice of the Council of
Ministers, he can still send back the proposal for reconsideration of all or
some of the names to the Council of Ministers, with his own suggestions,
and even in case, the names are suggested individually by the Chief
Minister, the Governor will have his authority to send the matter for
consideration by the Council of Ministers."

C) M.P. Special Police Establishment vs. State of M.P. and others,

reported in (2004) 8 SCC 788, after perusing the abovementioned case it is
to be contended that the Governor is not, in all cases bound to accept the advice
of the Council of Ministers and may even proceed to act in a manner effectively
rendering the advice as irrelevant and not binding.

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D) There are several constitutional functions, powers and duties of the Governor.
Under Article 154 the executive power of the State vests in the Governor. These
are conferred on him eo nomine (i.e., on the Governor in his name). The
executive power includes acts necessary
for carrying on or supervision of general administration of the State (Chandrika
Jha vs. State of Bihar – AIR 1984 SC 327 and State of MP vs. Dr.
Yeshwant Trimbak – AIR 1990 SC 765). The aforesaid principle has been
reiterated by the Supreme Court in Satya Narayan Shukla vs. Union of India
– (2006) 9 SCC 69.

E) The Governor is, by and under the Constitution, required to act in his discretion
in several matters. These constitutional functions and powers of the Governor eo
nomine as well as those in the discretion of the Governor are not executive
powers of the State within the meaning of Article 154 read with Article 162 .

F) Historically, Article 163, for the most part, has been bodily lifted from Sections
50 and 51(4) of the Government of India Act, 1935 (GoI Act). However, the
Governor of a Province had varied functions and to discharge the said functions,
was vested with vast discretionary powers under Section 50 of the GoI Act. The
said powers are, however, absent under our Constitution.

G) During the Constituent Assembly debates on Draft Article 143 (which is finally
numbered as Article 163 in the Constitution), an objection was raised to the
language conferring discretion on the Governor under Clause (1) of Article 143
by Shri HV Kamath and others.

H) Dr. B.R. Ambedkar, however, opposed any dilution in Draft Article 143(1) by
stating as follows:
“Now, speaking for myself, I have no doubt in my mind that the retention in or
the vesting the Governor with certain discretionary powers is in no sense
contrary to or in so sense a negation of responsible Government. I do not wish
to rake up the point because on this point I can very well satisfy the House by
reference to the provisions in the Constitution of Canada and the Constitution
of Australia.
I do not think anybody in this House would dispute that the Canadian system
of Government is not a fully responsible system of Government, nor will
anybody in this House challenge that the Australian Government is not a
responsible form of Government. Having said that, I would like to read Section
55 of the Canadian Constitution.”

Dr. B.R. Ambedkar further went on to say that:

“The clause is a very limited clause, it says ‘except insofar as he is by or under this
Constitution’. Therefore, Article 163 will have to be read in conjunction with such
other articles which specifically reserve the power to the Governor. It is not a
general clause giving the Governor power to disregard the advice of his Ministers,
in any matter in which he finds he ought to disregard...”

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I) Section 55 of the Canadian Constitution reads as follows:

“55. Where a Bill passed by the Houses of Parliament is presented to the
Governor- General for the Queen’s assent, he shall, according to his discretion,
and subject to provisions of this Act, either assent thereto in the Queen’s name,
or withhold the Queen’s assent or reserve the Bill for the signification of the
Queen’s pleasure.”

J) Articles 239(2), 371-A(1)(b), 371-A(2)(b), 371-A(2)(f) and Paras 9(2) & 18(3) of
the VI Schedule are some of the Constitutional provisions where the Governor
can exercise his discretion. Similarly, the Governor will be justified in exercising
discretion in making a Report under Article 356 even if the Report is against the
aid and advice of his Council of Ministers. Reserving bills for consideration of
the President under Article 200, has been held to be a discretiary function of the
Governor.

K) In the case of S.R Chaudhari v. State of Punjab, (2001) 7 SCC 126 the
Supreme Court reiterated the principle that the scheme of Article 164 compels a
minister to return to the legislature through direct or indirect elections within a
short period. India has seen instances of ministers being elected in the (Rajya
Sabha) State Legislative Council through indirect elections after not being able
to emerge victorious in their constituency. This form of election, though
deflection still follows the representative democracy since the elections are held
indirectly. The Judgment holds that Nominations under Article 80 to the
Council of States or Article 171 to the State Legislative Council do not fall into the
category of either direct or indirect elections.

L) The Allahabad High Court in Writ Petition No.4529 (MB) of 2003 (K. K.
Tripathi Vs. State of UP - decided on 22nd March 2010) challenging
nomination of certain member and urging transparency, guidelines and criteria
for selecting persons to be nominated, considered the relevant constitutional
provisions but did not decide the plea that nomination made without enquiry
being initiated as required under Article 191 of the constitution except for
observing that it may be advisable to take report of the proposed candidates
before consideration of his nomination.

M) The Patna High Court in the case of Vidya Sagar vs. Krishna Ballabh –
AIR 1965 Patna 321 and Katra Gadda Gangaram vs. State of Andhra
Pradesh – 1982 An.WR 258 held that the Courts cannot be called upon to
enter into the question of determining whether members nominated have or do
not have the required qualification under the Constitution. The Court further
held that in review of the advise tendered by the Council of Ministers to the
Governor or the material considered by the Governor for accepting the
nomination cannot be reviewed by a Court as the decision of the Governor is not
justiciable.

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N) The phrase “by or under this Constitution” in Article 163 is of wide import. If the
discretion of a Governor is not expressly provided, the tenor or the context of the
provision in question may show that the Governor has to apply his discretion.
The legislative Intent of the provision in 171(5) is to bring in people from
different specified fields to provide help and expertise to the functioning of the
Council, which stands in distinction to that of the Assembly. The nominated
member act like an objective lens, not tilted towards the ruling or the opposition
members in the Assembly. The nominated members who adorn the benches of
the Legislative Council are expected to contribute a distinctive and especially
valuable kind of wisdom to the deliberations of the council.

O) Under Section 6 of the RP Act, 1950, the person to be nominated shall be a

citizen of India and shall not be less than 30 years of age. In addition to these
qualifications, the prohibition prescribed in Article 191 of the Constitution will
apply. However, except for the above qualifications and prohibitions, which are
similar to nominated members and elected members (directly or indirectly), the
nominated members do not possess equal capacities and obligations as elected
members. For example, nominated members are not allowed to vote in the
election of a president. A nominated member is also exempted from filing of
assets and liabilities under the Representation of People’s Act, 1951, which all
elected members are compelled to file within 90 days of oath. A minister has its
own sets of duties and obligations that stand contrary to those expected from
nominated members. The caution sounded by the Supreme Court in the case of
S. R. Choudhary (supra) will have to be taken note of more particularly if a
member is nominated and such a member is given the task of being a Minister,
then it shall defeat representative democracy as envisaged by the Constitution.
Thus, if such gateway entry is allowed to career politicians in it will lead to
dilution of the importance of such nomination to the point where they might be
completely hijacked as a backdoor entry for politicians to the Council, in the
garb of having “practical experience” in the realms of social service, leaving no
scope for achieving the true intent of Article 171(3) i.e. to nominate members
having “practical experience” in the field of literature, science, art, co-operative
movement and social service to be realized.

P) Since this form of nomination is unintended by the makers, and destroys the
idea of representative democracy, it must not be looked upon as a legislative
action to be controlled by the Council of Ministers, but as a discretionary
executive action on which Governor has some control. Therefore, the Governor
should consider the constitutionality of such actions, and allow them only if they
do not alter the state of democracy. Nomination is not and cannot be permitted
to be used as a back door for politicians to enter the Legislature.

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Q) Two situations for the governor to act in this situations as follows;
1) The first situation is when the Governor on being satisfied that the person/s
proposed to be nominated by the Chief Minister, fulfill the predicates of
Article 171(3)(e) and is not disqualified under Article 191 of the Constitution
proceeds to nominate the person to the Legislative Council. This would be a
harmonious working of Article 163(1), Article 171(3)(e) and Article 171(5).

2) The second situation may arise when person/s proposed to be nominated by

the Chief Minister and his Council of Ministers, under Article 163(1), does /
do not possess “special knowledge” or “practical experience” in the field
stipulated in Article 171 (5) of the Constitution or is disqualified from being a
member of the Legislative Council. In such a situation the Governor would be
justified in not accepting such advise of the Chief Minister and proceed to
nominate persons who, in his opinion, satisfy the constitutional
requirements. This would be an exercise of constitutional discretion vested
the Governor exercised within the frame work of the Constitution.

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PRAYER

WHEREFORE IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

REASONS GIVEN AND AUTHORITIS CITED, THIS COURT MAY GRACIOUSLY BE
PLEASED TO:

A) Declare in terms of section 10 of the 1950 act and the third schedule read with
clauses (3)(e) and (5) of article 171 of the Constitution, or the rob framed under
clause (3) of article 166 of the Constitution, any discretion is available to the
governor not to nominate members of the kalki legislative council upon receipt of
the advice of the council of ministers.

B) Reject the petition filed by the petitioner.

AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO

GRANT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

ALL OF WHICH RESPECTFULLY SUBMITTED.

COUNSEL FOR THE RESPONDENT

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