Cim Memorial

LAW CENTRE 02, FACULTY OF LAW, COMMON INDUCTION MOOT, 2023 1
TEAM CODE- 321R
LAW CENTRE 02, FACULTY OF LAW, UNIVERSITY OF DELHI
COMMON INDUCTION MOOT 2023
Before
THE HON’BLE SUPREME COURT OF INDISTAN
In the matters of:
WRIT PETITION No.________ OF 2022
MR SAJJAN SINGH ...PETITIONER
Versus
THE UNION OF INDISTAN & ORS. ...RESPONDENTS
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDISTAN
WRIT PETITION INVOKED UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDISTAN
MEMORIAL ON BEHALF OF RESPONDENT
MEMORIAL ON BEHALF OF RESPONDENTS

TABLE OF CONTENTS
SNO. TOPIC PAGE NO.

1 List of abbreviations 3
2 Index of authorities
3 Statement of jurisdiction
4 Statement of facts
5 Issues raised
6 Summary arguments
7 Arguments advanced
 Whether a person who is “not a member” of either

house of parliament be sworn as prime minister of
indistan?
8 Whether the action of the president is violative of
article 14, 21 and 75 of the constitution?
9 1. Whether such appointments create a threat to democratic
system of the country?
10 Prayer

LIST OF ABBREVATIONS
INDEX OF AUTHORITIES

CASE LAWS
STATEMENT OF JURISDICTION
The Jurisdiction of the Hon’ble Supreme Court of Indistan has been invoked under Article 321 of the
Constitution of Indistan (hereinafter “the Constitution”). The same has been reproduced hereunder for
ready reference:
1
The Constitution of Indistan, art 32

“Article 32. Remedies for enforcement of rights conferred by this Part. —
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part”
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all
or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by
this Constitution
STATEMENT OF FACTS
1. A professor of leading university of Indistan challenges the election of “Govind Ram Khanna” as the
Prime Minister of the country by raising a writ petition in SC.
2. It was alleged on the part of petitioner that Mr. Khanna was found non eligible to hold the office of
PM on the grounds that he is not a member of either house of parliament on the date of his
appointment.
3. The petitioner also held the President of the country, “Dr. Gopal Das”, is faulty for committing a
grave and serious error by swearing Mr. Khanna as the PM of the country.
4. The Petitioner found this violative and challenged it on grounds of Art 14, 21 and 75 of the
constitution and regarded it as “Void ab initio” and he moved to the SC for quashing the
appointment.

5. Petitioner impleaded the UOI and the speaker of Lok Sabha too in violation of the mentioned art.
6. Petitioner claims the appointment is a serious threat to democratic system and see this as a great risk
since a person unaccountable to people cannot be appointed to such a high position and thus cannot
be assigned such a critical part.
7. Prior to this the honourable SC had already held that “A person who is not a member of either house
of parliament can be appointed as minister for a continuous period not exceeding six months.
8. A similar decision of an apex court too upheld that “A person who is not a member of either house of
state legislature can be appointed as minister for a continuous period not exceeding 6 months.
9. The petitioner pleaded the issue in SC by filling a writ under art 32 of the constitution.
ISSUES RAISED
2. WHETHER A PERSON WHO IS “NOT A MEMBER” OF EITHER HOUSE OF

PARLIAMENT BE SWORN AS PRIME MINISTER OF INDISTAN?
3. WHETHER THE ACTION OF THE PRESIDENT ARE VOILATIVE OF ART 14, 21 AND 75
OF THE CONSTITUTION?
4. WHETHER THE SUCH APPOINTMENTS CREATE A THREAT TO DEMOCRATIC

SYSTEM OF THE COUNTRY?

SUMMARY OF ARGUMENTS
1. WHETHER A PERSON WHO IS “NOT A MEMBER” OF EITHER HOUSE OF PARLIAMENT

BE SWORN AS PRIME MINISTER OF INDISTAN?
The counsel for the Respondent contends that the art 75(5) OF THE CONSTITUTION OF INDISTAN
clearly states that “A minister (which also includes the office of PM) who for any period of six
consecutive months is not a member of either house of parliament shall at the expiration of that period
ceases to be a minister”.

The section not only gives reference to the ministers but also to the prime minister as, no special position
is allotted to him and the constitution creates no distinction between the two.
2. WHETHER THE ACTION OF THE PRESIDENT ARE VOILATIVE OF ART 14, 21 AND 75 OF
THE CONSTITUTION?
The Counsel for the Respondent contends that even though a PM is not a member of either House of
Parliament, once he is appointed initially for a short term of six months, he becomes answerable to the
House and so also his Ministers and the principle of collective responsibility governs the democratic
process.
President by using his power ensures to give a fair chance to a “super competent” person. And even though
he loses confidence due to any reason in any particular constituency nobody can challenge that the person
wasn’t capable enough to be appointed at such a high position.
3. WHETHER THE SUCH APPOINTMENTS CREATE A THREAT TO DEMOCRATIC SYSTEM

OF THE COUNTRY?
The Counsel for the Respondent contends that there was nothing that was harming the democratic
system of the country and even though a Prime Minister is not a member of either House of Parliament,
once he is appointed, he becomes answerable to the House and so also his Ministers and the principle of
collective responsibility governs the democratic process.
ARGUMENTS ADVANCED
[ ISSUE 1]: WHETHER A PERSON WHO IS “NOT A MEMBER” OF EITHER HOUSE OF

PARLIAMENT BE SWORN AS PRIME MINISTER OF INDISTAN?
The Counsel for the Respondent upholds the validity of art 75(5) of the constitution2 and is of the view
that the respondent cannot be held liable as the section clearly states and gives a period of six months for
a non-minster to get elected as a minister.
2
Constitution of Indistan

¶ Explanation of article 75 of the constitution
Other provisions as to Ministers
(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by
the President on the advice of the Prime Minister.
(2) The Minister shall hold office during the pleasure of the President
(3) The Council of Ministers shall be collectively responsible to the House of the People
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and
of secrecy according to the forms set out for the purpose in the Third Schedule
(5) A Minister who for any period of six consecutive months is not a member of either House of
Parliament shall at the expiration of that period cease to be a Minister
(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law
determine and, until Parliament so determines, shall be as specified in the Second Schedule The Attorney
General for India
¶ Referring Sub § 5 of art 75, it can be inferred that every minister, who is initially not a member of either
house of parliament should be given an equal and fair chance to get elected as a minister. However, only
even if at the expiration of the period of six months, the person still does not manage to secure a seat in
either house then only he ceases to be a minister. The period of six months is set as a cap, and no person
can challenge the election of the candidate during that period.
¶ For instance, a person gets elected as a minister and even manages to secure a seat in either house,
however if due to circumstances he loses the seat before the expiration of his time period, his election still
can’t be challenged and he stands a chance to get elected again till the expiration of the period defined.
¶ In Har Sharan Verma v. Shri Tribhuvan Narain Singh, Chief Minister, U.P. and Another 3, it was held
that a candidate who is not a member of the Legislature can become a Minister provided under a
condition which has been provided in the Constitution4 under Art 164(4).
3
1971 AIR 1331, 1971 SCR 1
4
Constitution of Indistan

Art 164(4)- “A Minister who for any period of six consecutive months is not a
member of the Legislature of the State shall at the expiration of that period
cease to be a Minister”
Explaination- The sub section includes ministers and Chief Ministers. A short-term period of six
months has been set as a cap during which the candidate stands a change to be in power. However, if
even at end of six months the person fails to secure a seat in legislature, the person ceases to be a
minister. On the lieral reading of the section court dismissed the petition and held the validity of the
article.
¶ In Har Sharan Verma v. State of U.P. 5, Shri K.P. Tiwari was appointed in as a Minister of the U.P.
Government even though he was not a member of either House of the State Legislature. The petitioner
contended that the decision rendered by this Court in the case of Shri T. N. Singh was not good law
and further challenged it. Pointing out the amendment in art 173(a) he further contented that court is
overlooking the amendment made in art 173 through sixteenth amendment act and the decision was
demanded to be further revised.
In article 173 of the Constitution, for clause (a), the following clause shall be substituted 6,
namely: — “(a) is a citizen of India, and makes and subscribes before some person
authorized in that behalf by the Election Commission an oath or affirmation according to
the form set out for the purpose in the Third Schedule;".
¶ held in the case that a person who was not a member of either House of the State Legislature could
also be appointed by the Governor as the Minister (Which includes the CM) for a period not exceeding
six consecutive months. The Court, therefore, did not see any material change brought in the
judgement.
¶ Another case, Hari Saran Verma and Anr. V UoI And Anr 7, the petitioner questioned the
appointment of the candidate as a Minister of State of the Central Cabinet since he was not a member
of either House of Parliament at the date of the appointment. Responding to this Court held that to
appoint a non-member of the Parliament as a Minister did not militate against the constitutional
5
1985 AIR 282, 1985 SCR (2) 547
6
The Sixteenth Amendment Act of 1963
7
AIR 1987 SC 1969

mechanism nor did it militate against the democratic principles embodied in the Constitution. The
court read the provisions of art 75(5) with article 88 further to expand the scope of the article.
Art 75(5) – “A Minister who for any period of six consecutive months is not a
member of either House of Parliament shall at the expiration of that period cease to
be a Minister”
Art 88- “Rights of Ministers and Attorney General in respects Houses Every
Minister and the Attorney General of India shall have the right to speak in, and
otherwise to take part in the proceedings of either House, any joint sitting of the
Houses, and any committee of Parliament of which he may be named a member, but
shall not by virtue of this article be entitled to vote Officers of Parliament”
¶ Explanation- By combine reading of both the art the SC further strengthened its point by
emphasizing that any minister can take part in proceedings of the house not necessarily being a
member of that house. For instance, if a person is a member of Rajya Sabha he doesn’t need
membership of Lok Sabha to take part in proceedings of the same. Although the person may not have
the right to vote however, he/she can take part in proceedings and have a right to speak in the house.
¶ In Dr. Janak Raj Jai V H. D. Deve Gowda8, the petitioner filed a writ petition 1996 in which he
questioned the appointment of the PM since he was not a member of either House of Parliament on the
date he was sworn-in by the President of India. The court held that "when Art 75(5) speaks of a
"Minister" it takes within its embrace that Minister also who is described in the Constitution as Prime
Minister". In other words that High Court found that the Constitution did not make any distinction
between the Prime Minister and other Ministers. The High Court dismissed the petition.
¶ In S.P. Anand, Indore vs H.D. Deve Gowda & Others 9 , on 6 November, 1996 the petition was
filed by Ashok Sen Gupta, a Senior Advocate, challenging he appointment of Shri H.D. Deve Gowda
as the Prime Minister of India on the ground that he was not eligible for appointment as he was not a
member of either House of Parliament. the petition was dismissed “in limini”. The court rejected the
writ and regarded it as a casual and cavalier fashion giving an extempore appearance not having had
even a second look and seemed vague to the honourable court.
8
1996 IIIAD Delhi 670
9

¶ In SR Choudhary v. State of Punjab & Ors10, Shri Tej Prakash Singh was appointed as minister of
Punjab on the advice of CM Sardar Harcharan Singh Barar. At the time of his appointment, he was not
a member of state legislative assembly in Punjab and failed to get himself appointed as elected
member of legislature of Punjab within six months and submitted his resignation therefore. During the
term of the same legislature assembly there was a change in leadership of the ruling party. Respondent
no. 2 who till now was not a member of legislature, was once again appointed as the
minister.Appellant contended it as violative of constitutional provisions and raised a writ of quo
warranto against him. The court however dismissed the writ “in limini” as it has already been stated
that with the coming of new ruling government, it is upto them to choose their ministers and it doesn’t
create a hurdle for those who were previously not elected.
¶ CONCLUSION
The Section referred by the Supreme Court has adequate built-in safeguards to protect the rights of
accused and are only made to rebut the foundational facts which are established by the prosecution;
Therefore, it does not amount to a violation of any art laid in the constitution 11. therefore, concludes
that art 75(5) must be interpreted in a constitutional way so as it does not offend any of the
fundamental rights of accused. Hence, a suitable interpretation to the context is beseeched from the
Hon’ble Supreme Court as and when time demands.
Thus, statutory presumption underneath art 75(5) of the constitution does not intend to limit its
purview rather it establishes a fair and equal chance for the candidates getting elected and creating a
cap of six months ensures that there is no misuse of power. This provision surely upholds democracy,
at the same time holding candidates accountable.
Thus, according to facts we hereby contend that the respondents were accused in a vague case which
creates no sense when it has already been stated clearly in our constitution and has been emphasized by
the honorable SC that a minister has been given a time period of six months to be elected in legislature.
Thus, the respondents have not committed any wrong.
10
11
Constitution of indistan

[ISSUE -2]: WHETHER THE ACTION OF THE PRESIDENT ARE VOILATIVE OF

ARTICLE 14, 21 AND 75 OF THE CONSTITUTION?
ART 14 -“Equality before law The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth”

¶ The Concept of equality does not mean absolute equality among human beings which is physically
not possible to archive it is a concept implying absence of any special privilege to any individual. The
guarantee of equality before the law is an aspect of what dicey calls the rule of law in England, Dicey
wrote-
" every official from the prime minister down to constable or a collector of taxes in
under the same responsibility for every act done without legal justification as any
other citizen”
ART 21- “Protection of life and personal liberty No person shall be deprived of his
life or personal liberty except according to procedure established by law”
¶ The right to life is not just about the right to survive. It also entails being able to live a complete life
of dignity and meaning. The chief goal of Art 21 is that when the right to life or liberty of a person is
taken away by the State, it should only be according to the prescribed procedure of law.
¶ Article 75(1) envisages a Council of Ministers with the PM at the head to aid and advise the
President, and the latter is expected to act in accordance with such advice but if he has any
reservations, he may require the Council of Ministers to reconsider such advice. Thus, the President
must act in accordance with the advice of the council of Ministers as a body and not go by the advice
of any single individual. Only a person who, the President thinks, commands the confidence of the Lok
Sabha would be appointed the Prime Minister who in turn would choose the other Ministers.
¶ Therefore, even though the PM is appointed by the President after he is chosen by such number of
members of the House of the People as would ensure that he has the confidence of the House and
would be able to command the support of the majority, and the Ministers are appointed on the advice
of the PM, the entire Council of Ministers is made collectively responsible to the House and that
ensures smooth functioning of democracy.
¶ Therefore, even though a PM is not a member of either House of Parliament, once he is appointed,
he becomes answerable to the House and so also his Ministers and the principle of collective
responsibility governs the democratic process. Even if a person is not a member of the House, if he has
the support and confidence of the House, he can be chosen to head the Council of Ministers without

violating the norms of democracy and the requirement of being accountable to the House would ensure
the smooth functioning of the democratic process. We, therefore, find it difficult to subscribe to the
petitioner's contention that if a person who is not a member of the House is chosen as PM, national
interest would be jeopardised or that we would be running a great risk.
¶ If one were to read the debates of the Constituent Assembly Precisely on the ground that permitting
such persons to be appointed Ministers at the Union or State levels would "cut at the very root of
democracy", an amendment was moved to provide: "No person should be appointed a Minister unless
at the time of his appointment, he is elected member of the House:" which amendment was spurned by
Dr. Ambedkar in the following words:
"Now with regard to the first point, namely, that no person shall be entitled to be
appointed a Minister unless he is at the time of his appointment an elected member of the
House, I think it forgets to take into consideration certain important matters which
cannot be overlooked. First is this and it is perfectly possible to imagine that a person
who is otherwise competent to hold the post of a Minister has been defeated in a
constituency for 'some reason and which, although it may be perfectly good, might have
annoyed the constituency, and he might have incurred the displeasure of that
constituency. It is not a reason why a member so competent as that should not be
permitted to be appointed a member of the Cabinet on the assumption that he shall be
able to get himself elected from the same constituency or from another constituency. After
all the privileges that he is permitted is a privilege that extends only to six months. It
does not confer a right on that individual to sit in the House being elected at all. My
second submission is this that the fact that a nominated Minister is a member of the
Cabinet does not either violate the principle of collective responsibility nor does it violate
the principle of confidence because he is a member of the cabinet if he is prepared to
accept the policy of the Cabinet stands part of the Cabinet and resigns with the Cabinet
when he ceases to have the confidence of the House, his membership of the Cabinet does
not in any way cause any inconvenience or breach of the fundamental principles on
which parliamentary government is based. Therefore, this qualification in my judgment is
quite unnecessary."

¶ At the end of the discussion, the Constituent Assembly rejected the proposed amendment.
Furthermore, as pointed out in the decision of this Court 12 such an appointment does not militate
against the democratic principles embodied in our Constitution.
¶ Conclusion
With respect, respondents want to emphasize the fact that the contention of the petitioners thus stands
nullified.
[ISSUE 3]: WHETHER THE SUCH APPOINTMENTS CREATE A THREAT TO

DEMOCRATIC SYSTEM OF THE COUNTRY?
¶ Referring to the petition in case S.P. Anand, Indore v H.D. Deve Gowda & Ors 13 the court observed
petition are of a rambling nature and lack cohesion and found regrettable that a petition challenging the
appointment to the high office of the Prime Minister of this country should have been drafted in such a
cavalier fashion betraying lack of study, research, and seriousness. Even on this point his submissions
were more in the nature of empty rhetoric than of substance. In fact, on reading the petition and his
written submissions, the words of CY. Chandrachud, can be referred-
12
(1987 Supp. SCC 310)
13

"It is regrettable that election petitions challenging the election to the high office
of the President of India should be filed in a fashion as cavalier as the one
which characterises these two petitions. The petitions have an extempore
appearance and not even a second look, leave alone a second thought, appears
to have been given to the manner of drafting these petitions or to the contentions
raise therein. In order to discourage the filing of such petitions, we would have
been justified in passing a heavy order of costs against the two petitioners."
¶ On a plain reading of Art 75(5) it is obvious that the Constitution-makers desired to permit a person
who was not a member of either House of Parliament to be appointed a Minister for a period of six
consecutive months and if during the said period he was not elected to either House of Parliament, he
would cease to be a Minister. Even though the PM is appointed by the President after he is chosen by
such number of members of the House of the People as would ensure that he has the confidence of the
House and would be able to command the support of the majority, and the Ministers are appointed on
the advice of the PM, the entire Council of Ministers is made collectively responsible to the House and
that ensures the smooth functioning of the democratic machinery.
¶ Litigants who can lay no claim to have expert knowledge in that field should refrain from filing
petitions, which if we may say so, are often drafted in a casual and cavalier fashion giving an
extempore appearance not having had even a second look.
¶ The rule of locus standi was emphasized. It refers to the legal right to file a lawsuit. It is a party’s
ability to show the court that the law or action challenged has a sufficient relation to and damage from
it to justify the party’s involvement in the case. It is of utmost importance that those who invoke this
Court's jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the
Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to
spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing
publicity.
¶ Conclusion

As we have already noted and has been emphasized by SC on several occasion that article 75(5) creates no
threat to democracy rather it holds it affirmably. The respondents thus contend that the petitioners need
to brush up against the facts and need to know that the respondents have committed no wrong in their
actions.

PRAYER
Therefore, in the light of facts and circumstances of the matter at hand, Respondent most humbly
pray that the Hon’ble Court may be pleased to hold that:
1. A candidate can hold the office for a consecutive term of six months and nothing can
challenge that except in exceptional circumstances established by law.
2. The petitioners cannot raise any question on the elections of the respondents
3. The petition filed by the Petitioners being premature and vague is liable to be dismissed
4. Mr. Khanna cannot be held liable to violate art 75(5) of the constitution

5. The president cannot be held liable to act against the art 14, 21 and 75
6. The election of the candidate is creating no harm to the democratic system of the country
7. Any other order(s) and/or relief(s) may be passed which the Hon’ble Court may deem just and fit
as per the facts and circumstances of the matters at hand, in the interest of \
It is prayed accordingly.
DATED: 25.10.2022
Sd/-
RESPONDENT
Through
Sd/
-
COUNSEL
(Team Code – 321R)

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LAW CENTRE 02, FACULTY OF LAW, COMMON INDUCTION MOOT, 2023 1

TEAM CODE- 321R

LAW CENTRE 02, FACULTY OF LAW, UNIVERSITY OF DELHI

COMMON INDUCTION MOOT 2023

THE HON’BLE SUPREME COURT OF INDISTAN

In the matters of:

WRIT PETITION No.________ OF 2022

MR SAJJAN SINGH ...PETITIONER

THE UNION OF INDISTAN & ORS. ...RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

WRIT PETITION INVOKED UNDER ARTICLE 32 OF THE CONSTITUTION OF

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENTS

SNO. TOPIC PAGE NO.

 Whether a person who is “not a member” of either

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

“Article 32. Remedies for enforcement of rights conferred by this Part. —

MEMORIAL ON BEHALF OF RESPONDENTS

2. WHETHER A PERSON WHO IS “NOT A MEMBER” OF EITHER HOUSE OF

4. WHETHER THE SUCH APPOINTMENTS CREATE A THREAT TO DEMOCRATIC

MEMORIAL ON BEHALF OF RESPONDENTS

1. WHETHER A PERSON WHO IS “NOT A MEMBER” OF EITHER HOUSE OF PARLIAMENT

MEMORIAL ON BEHALF OF RESPONDENTS

3. WHETHER THE SUCH APPOINTMENTS CREATE A THREAT TO DEMOCRATIC SYSTEM

[ ISSUE 1]: WHETHER A PERSON WHO IS “NOT A MEMBER” OF EITHER HOUSE OF

MEMORIAL ON BEHALF OF RESPONDENTS

¶ Explanation of article 75 of the constitution

Other provisions as to Ministers

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

[ISSUE -2]: WHETHER THE ACTION OF THE PRESIDENT ARE VOILATIVE OF

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

[ISSUE 3]: WHETHER THE SUCH APPOINTMENTS CREATE A THREAT TO

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

MEMORIAL ON BEHALF OF RESPONDENTS

(Team Code – 321R)

MEMORIAL ON BEHALF OF RESPONDENTS

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