ARGUMENTS ADVANCED

I. Whether the appointment of the prime minister by the president is the ultra
vires of the constitution?
The Petitioner hereby humbly submits before the Hon’ble SC of Indistan that the
appointment of Govind Ram Khanna as the PM of Indistan without being a member of either
house of Parliament can be seen as ultra vires of the Constitution because it goes against the
clear requirement laid out in Art.14, Art.19 Art.21, Art.75(5), and Basic structure of the
Constitution of Indistan. Furthermore, the SC of India has held in the landmark case of S.R.
Bommai V. UOI 1(1994) that the appointment of a person who is not an elected
representative as the CM of a state would be unconstitutional as it would go against the
principle of representative gov. enshrined in the constitution The decision suggests that a
similar requirement would apply to the appointment of the PM. Therefore, the appointment of
a non-elected representative as the PM would be ultra vires of the constitution because it
clearly violates the above mentioned articles of the constitution and would exceed the power
granted by the constitution

A. That the action of executive is arbitrary and blatantly violating Art.14 of the
Constitution
1. It is submitted before this Hon’ble Court that the appointment of PM by the President
is arbitrary and blatantly violates Art.14 of the Constitution
2. Art.14 secures equal protection of law to all the people within the territory of
Indistan. It is negative concept which postulates that person who is in the like
circumstances should not be discriminated and must be treated equally.
3. In the landmark case of EP Royappa v State of Tamilnadu, the five judge bench
of supreme court coined the doctrine of arbitrariness which laid down that
“Equality and arbitrariness are sworn enemies; one belongs to the rule of law
in a republic while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal both according to
political logic and constitutional law and is therefore violates the Art. 14”
4. It is further submitted that arbitrariness is antithesis to equality. Any action which
is arbitrary involves negation of Equality and therefore it is liable to be struck
1

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 down.
5. It is submitted that the Hon’ble Supreme Court of Indistan in State of West Bengal
V. Anwar Ali Sarkar22 has evolved a reasonable classification test as a subsidiary
rule for testing whether a particular state action is arbitrary or not. In order to
consider any classification to be reasonable the classification must fulfill two
conditions –

a. The classification must be founded on an intelligible differentia which

distinguishes those that are grouped together from others;
b. The differentia must have a rational relation to the object sought to be
achieved by the Act.
6. It is humbly submitted that in the present case it could be argued that such an
appointment is discriminatory against other elected representatives who have gone
through the democratic process of being elected to the Parliament. This could be seen
as a violation of the right to equality before law.
7. The appointment of the PM is without any reason and negating the equality, hence not
accordance with the above mentioned doctrine of arbitrariness which was laid down
in the landmark case of EP Royappa v State of Tamilnadu. Thus the action by the
executive implies that the appointment is arbitrary and unreasonable, therefore should
be struck down with the immediate effect.
8. By choosing him as PM they were able to produce an intelligible differentia which
distinguished him with other member of parliament, but doesn’t have any rational
nexus with the object which is sought to be achieved by the action of the executive.
9. It is humbly submitted before this hon’ble court that in the land mark case of

Subramniam Swamy v Union of India25, the court held that if the object of
classification itself is discriminatory, then the explanation that the classification
itself is reasonable having a rational nexus to the object sought to be achieved is
immaterial.
10. It is contended that the objective of the appointment of a non-elected representative as
the PM could be seen as the means to bypass the democratic process and advance the
interests of a select few, and could also be seen as for personal gains, political gains
for the ruling party etc.
11. Thus, the object of classification is discriminatory and therefore, arguendo, even if

2
 the differentia does have any rational nexus with the object that the appointment
seeks to achieve, such rational nexus would not hold any ground.
12. It is further contended that the hon’ble SC in Deepak Sibaal v Punjab University28
held –
“If the object of classification be illogical, unfair and unjust, necessarily the
classification will have to be held as unreasonable”
13. In the present case the object of classification is illogical, unfair, and unjust to the
people of Indistan, who have a right to be represented by elected representative This
would undermine the democratic processes and the principles of equality and justice
enshrined in the constitution

B. That the appointment of the PM by the President is violating freedom of expression

mentioned under Art.19(1)(a). constitution

14. It is submitted that Art.19(1)(a) of the Constitution 38 states that all citizens shall
have the right to freedom of speech and expression.
15. It is further submitted that the two judge bench of SC in the case of Lily Thomas v

Union of India39 held “Voting is formal expression of will or opinion by the

person entitled to exercise the right on the subject or issue in question.”
16. The apex court further reiterated its stand and held “The casting of vote in favour
of one or the other candidate tantamount to expression of his opinion and
preference and that final stage in the exercise of voting right marks the
accomplishment of freedom of expression of the voter. That is where Art. 19(1)(a)
is attracted.”
17. Thus, it is established that voting is a form of expression and falls under freedom
of expression mentioned under Art.19(1)(a).

18. Now the counsel humbly contends before the hon’ble court that it is through the
act of voting that citizens expresses their will and participate in the democratic
process but the act of executive denying the manifestation of their expressions, and
the PM is not chosen amongst the representative of the citizens whom they have
elected in the previous election, since that the PM has not been chosen by the
people through a democratic election process, it may be argued that this right has
been denied.

3
C. That the Art.21 of the constitution is violated by the action of the executive.
19. It is most humbly submitted before the hon’ble court that Art.21 provides that No
person shall be deprived of his life or personal liberty except according to
procedure established by law.
20. The Hon’ble SC in its jurisprudence has given a wider interpretation to the term
‘liberty’ and has held that liberty does not denotes merely freedom from bodily
restraint but has held that it encompasses those rights and privileges that have long
been recognized as being essential to the orderly pursuit of happiness by free men.
21. Moreover, liberty has been interpreted to include freedom not only from arbitrary
restraint but also to secure such conditions which are essential for full
development of human personality. Liberty is the essential concomitant for other
rights without which a man cannot be at his best.
22. It is submitted that liberty includes having a democratically elected government
and according to the Late Justice HR Khanna, liberty and democracy are
considered to be inseparable.
23. It is further contented that the executive has chosen the person for the position of
the PM who doesn’t represent the will of the people, and he could act arbitrary
through which the rights of freedom which state enjoys over the citizens will
infringe, therefore the people of the state won’t be able to live at their best, thus it
hampers the personal liberty of their lives.
24. Being an elected representative provides a person experience with the legislative
process, the Parliament, and the problems that their people face. Without this
background, a non-elected PM might struggle to effectively run the government
and comprehend the needs of the people.
25. Furthermore, the appointment of a non-elected representative as the Prime
Minister could lead to political instability, which could potentially violate the right
to life and personal liberty of the citizens of India. Political instability could lead to
violence, unrest and the breakdown of law and order, which could threaten the
right to life and personal liberty of the citizens, therefore, it can be argued that the
appointment of a non-elected representative as the PM of Indistan could
potentially violate the fundamental rights guaranteed under Art.21 of the
Constitution

D. That the action of the executive also violates the basic structure of the constitution.

4
26. It is submitted that the SC in the much-celebrated case of Kesavananda Bharti v.
State of Kerala has held that democracy is part of the basic structure of the
Constitution and it also states that the some provisions of the constitution are so
fundamental for the governing of the country that they cant be amended. Further it
also states that the sovereignty is also a part of basic structure of the constitution
27. Now it is contended that the, in brief the democracy could be defined as the “by the
people for the people and of the people” but here in this scenario the PM of the
country has not chosen by the people of the country and hence it bypasses the
democratic procedure of elected representative to the parliament. Further this
appointment of non-elected representative as the PM is contrary to the fundamental
principle representative gov.
28. Democracy is all about the the popular sovereignty, where the power lies in the hands
of the citizens who elect their representative to make their decisions if these kinds of
appointment take place they could be seen as the violation of this principle and
undermining of the principle of the popular sovereignty.
E. That this act of president appointing the non-elected representative as the PM violates
the Art.75 of the constitution
29. Counsel submits that the Art.75 of the constitution talks about the qualification for the
appointment of the PM. This Art. States that PM must be a member of either house of
the parliament if he/she is not a member of parliament at the time of appointment,
he/she must become one within 6 months.
30. It is contented that it violates the Art.75 of the constitution because Mr. Govind Ram
Khanna doest not meet the qualification for being appointment as the PM under
constitution The constitution states that PM must be member of either house of
parliament which is a necessary qualification and by appointing him as the PM of the
country the gov. is violating the constitution and undermining the principe of
representative gov. and democracy.
31. Furthermore the constitution is very clear about, who is not a member of parliament
at the time of appointment, must be a member within the 6 months. This provision is
intended to ensure that the Prime Minister is accountable to the people and the
Parliament, and is subject to the democratic process. The appointment of a non-
elected representative as the Prime Minister for a period of 6 months would be
violative of this provision as well. And the the person who don’t have any experience
of working in the parliament and appointed as a PM without this experience, they may

5
 not be able run the gov. properly or comprehend what the people of the country seeks
from them.
32. Moreover, in the similar case of S.P. Anand V. H.D. Deve Gowda & ors, (1996) the
petitioner invited our attention to Halsbury laws of England (3rd edition) where in
para. 745 stated that “by conventional usage PM is invariably a member of either
House of commons or House of lords” and the parliamentary form of gov. stated in
the constitution of the Indistan has been taken from the England, so the same should
be followed here.
33. Article 75(5) of the Indian Constitution states that the Prime Minister shall be
appointed by the President and shall be a member of either house of the Parliament.
This provision makes it clear that a person must be an elected representative to be
appointed as the Prime Minister, and this requirement ensures that the Prime Minister
is accountable to the Parliament and to the people.
34. Further the petitioner contends that by convention, the Prime Minister must always be
a member of the lower House of Parliament since members of the Lok Sabha are
chosen by the country's inhabitants directly, as opposed to members of the Rajya
Sabha, who are either chosen by an electoral college of state assembly members or
nominated by them.
35. Overall it would be against the consi.’s provisions of representative gov. and
democracy to appointment someone the PM without being a member of parliament
for 6 months hence it violates the Art.75.

6
 PRAYER

WHEREFORE, IN THE LIGHT OF ISSUES RAISED, ARGUMENTS

ADVANCED, REASONS GIVEN AND AUTHRITIES CITIED, THIS HON’BLE
COURT MAY BE PLEASED TO:

I. HOLD THAT THE APPOINTMENT OF GOVIND RAM KHANNA AS THE PM

BY PRESIDENT DR. GOPAL DAS IS GRAVE AND SERIOUS
CONTITUTIONAL ERROR AND VIOLATES ARTICLE 14, 19, 21 & 75 OF THE
CONSTITUTION THEREFORE VOID AB INITIO.
II. HOLD THAT THE APPOINTMENT OF GOVIND RAM KHANNA AS THE PM
OF INDISTAN DESERVES TO BE QUASHED BY ISSUING THE WRIT OF
CERTIORARI BY THE SUPREME COURT.

AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE,
ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd/-
(COUNSELS FOR PETITIONER)

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 TABLE OF
ABBREVIATIONS
& And

Para Paragraph

Appointment Appointment

Ors Others

i.e. That is

AIR All India Reporter

SC Supreme Court

Anr. Another

Approx. Approximately

Art. Article

HC High Court

Constitution Constitution

Repres. Representative

Gov. Government

Hon’ble Honorable

V. versus

ILR Indian Law Reports

8
 SUMMARY OF
ARGUMENT

I. Whether the appointment of the prime minister by the president is the ultra
vires of the constitution?
It is humbly contended that the impugned appointment violates Art.14. firstly, as it is
discriminatory against other elected representatives and also it is arbitrary and unreasonable.
Secondly, they produce intelligible differentia but doesn't have any rational nexus with the
object which is sought to be achieved by the action. Furthermore it violates art. 19(1)(a) of
the Constitution since the PM is not chosen through the voting, the executive denying the
manifestation of their expression. It also violates the Art.21 as the word liberty also means
having a democratically elected gov and the same doesn’t happen here in this case, and the
appointment could lead to political instability further it can cause violence, unrest and the
breakdown of law which could threaten right to life and personal liberty of the citizen The
appointment is contrary to the basic structure of the Constitution as sovereignty is part of
basic structure and the appointment is hampering the popular sovereignty by bypassing the
Democratic procedure of elected representative. Further the appointment also violates the
Art. 75 of the Constitution as the appointment do not meet the qualification for being
appointment as the PM for the 6 months.

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 ISSUES RAISED

The following Issues have been framed for the argument before the Hon’ble Supreme Court
of Indistan:

I. Whether the appointment of the prime minister by the president is the ultra
vires of the constitution?

10
 TABLE OF
CONTENT

TABLE OF CONTENT……………………………………………………
TABLE OF ABBREVIATIONS…………………………………………..
INDEX OF AUTHORITIES………………………………………………
STATEMENT OF JURISDICTION………………………………………
STATEMENT OF FACTS…………………………………………………
ISSUES RAISED……………………………………………………………
SUMMARY OF ARGUMENT…………………………………………….
AGUEMENTS ADVANCED………………………………………………

I. Whether the appointment of the prime minister by the president is the ultra
vires of the constitution?.....................................................................................
A. That the action of executive is arbitrary and blatantly violating Art.14 of the
Constitution…………………………………………………………………………
B. That the appointment of the PM by the President is violating freedom of expression
mentioned under Art.19(1)(a). constitution……………………………………………..
C. That the Art.21 of the constitution is violated by the action of the executive……..
D. That the action of the executive also violates the basic structure of the
constitution…………………………………………………………………
E. That this act of president appointing the non-elected representative as the PM violates
the Art.75 of the constitution……………………………………...

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