Before

THE HON’BLE SUPREME COURT OF INDIA

MR NARAYAN BHASKAR KHARE …PETITIONERS

Versus

THE ELECTION COMMISSION OF INDIA …RESPONDENTS

UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA

WRIT PETITION INVOKED UNDER ARTICLE 71(1) OF

THE CONSTITUTION OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONERS

SUBMITTED TO – PROF. RUNA MEHTA THAKUR

SUBMITTED BY - SAKSHAM MALTA

ROLL NO. - 22117
LLB 2ND SEMESTER
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TABLE OF CONTENTS
 INDEX OF AUTHORITIES…………………………3

 CITED JUDGEMENTS………………………………4
 STATEMENT OF
JURISDICTION……………………………………… 5
 STATEMENT OF FACTS…………………………….6-7
 ISSUES RAISED .......................................................... 8
 SUMMARY OF ARGUMENTS .............................9-10
 ARGUMENTS
ADVANCED……………………………………………11-15

 PRAYER ................................................................ 16-17

MEMORIAL ON BEHALF OF THE PETITIONER

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INDEX OF AUTHORITIES

—
STATUTES—

1. The Constitution of India

2. The Rules of Supreme Court Of India 1952

3. The Presidential and Vice Presidential Elections Act, 1952 (XXXI of

1952)

MEMORIAL ON BEHALF OF THE PETITIONER

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— CITED

JUDGEMENTS :-

 BRIJ MOHAN DAS AGARWAL VS. Z A

AHMAD [LAWS(ALL)-1963-5-1]
[REFERRED TO]
 LEELA RANI P VS. AGENCY
DIVISIONAL OFFICER [LAWS(APH)-
2002-9-57] [REFERRED TO]

 E H TIPPOO VS. HONBLE THE CHIEF

JUSTICE OF INDIA [LAWS(CAL)-1971-
1-11] [REFERRED TO]
 CHARAN LAL SAHU VS. NANDA
KISHORE BHATT [LAWS(MPH)-1972-
9-11] [REFERRED TO]

 SOMESHWAR SAHAKARI SAKHAR

KARKHANA LIMITED VS. SHRINIVAS
PATIL [LAWS(BOM)-1992-1-56]
[REFERRED TO]
 RAM CHANDRA MALPANI AND ORS.
VS. STATE OF ASSAM AND ORS.
[LAWS(GAU)-1962-8-4] [REFERRED
TO]

 SHIV KIRPAL SINGH VS. V V GIRI

[LAWS(SC)-1970-9-27] [RELIED ON]

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF JURISDICTION

The jurisdiction of the Hon’ble Supreme Court of India

has been invoked under Article 71(1) of the
Constitution of India (hereinafter “the Constitution”).
The same has been reproduced hereunder for ready
reference:

Article 71(1) in The Constitution Of India 1949 :-

All doubts and disputes arising out of or in connection

with the election of a president or vice President
shall be inquired into and decided by the Supreme
Court whose decision shall be final

MEMORIAL ON BEHALF OF THE PETITIONER

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STATEMENT OF FACTS

 After the general elections in all the States and Union

territories of India, except in the Union territory of
Himachal Pradesh, which is to return four members to
the Lok Sabha and in two constituencies in the State of
Punjab, the old Lok Sabha was dissolved on April. 4,
1957 and the new Lok Sabha was constituted on April
5, 1957 under Section 73 of the Representation of the
People Act (43 of 1951).

 As required by Section 4 of the Presidential and Vice-

Presidential Election Act, 1952 (33 of 1952) the
Election Commission issued a notification in the
Official Gazette appointing April 16, 1957 as the last
date for making nominations, April 17, 1957, as the date
for the scrutiny of the nominations, April 20, 1957, as
the last date for the withdrawal of candidatures, May 6,
1957, as the polling date and May 10, 1957, as the date
for the counting of the votes and the declaration of the
result. The term of office of the present President is due
to expire on the mid-night of May 12, 1957. The reason
for fixing the above time schedule obviously was that
the Presidential election should be completed before the
term of office of the present President expired.

 The petitioner is a member of the Hindu Mahasabha and

is contesting the election to the Lok Sabha as an
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independent candidate from Kangra Parliamentary

constituency in the State of Punjab. He filed his
nomination paper on January 28, 1957 as originally the
polling was scheduled to commence in that constituency
on February 24, 1957. The polling, however, has since
been postponed and fixed for June 2, 1957. He has filed
the petition as a citizen of India and as a prospective
member of Lok Sabha under the presidential and vice
presidential elections act 1952 and contends that if the
Presidential election is held on May 6, 1957, he will be
deprived of his right to vote for the election of the
President of the Union. He has also complained of
discrimination offending against Article 14 of the
Constitution.

 The said petition was returned by the registrar on the

ground as not being in conformity with the provisions
of the Presidential and Vice-Presidential Elections Act,
1952 (XXXI of 1952), and as not satisfying the
requirements of the Rules of this Court contained in O.
XXXVII-A. Section 14 of Act XXXI of 1952 provides
that no election shall be called in question except by an
election petition presented to the Supreme Court in
accordance with the provisions of the Act and of the
Rules made by the Supreme Court

 The petitioner filed an appeal before the supreme court

against the order of the registrar
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ISSUES RAISED

1. Whether the petitioner has a right as a

citizen to approach this Court under Art.
71(1) whenever an election has been held in
breach of the constitutional provisions
2. Whether the Supreme Court of India has
jurisdiction to inquire into and decide a
‘grave doubt’ (explained further in the case)
in connection with the president of India.

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SUMMARY OF ARGUMENTS
1.Whether the petitioner has a right as a
citizen to approach this Court under Art. 71(1)
whenever an election has been held in breach
of the constitutional provisions
It is the petitioner’s right guaranteed to him being a
citizen of India under the article 71(1) of the Indian
Constitution which states that :-
(1) The Supreme Court shall conduct an
investigation and render a final judgment on all
doubts and disputes arising out of or related to
the election of a president or vice president

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2.Whether the Supreme Court of India has

jurisdiction to inquire into and decide a ‘grave
doubt’ (explained further in the case) in
connection with the president of India.

Holding presidential elections on 6th May 1957 when

the general assembly elections in Himachal Pradesh and
elections of the 4 Lok Sabha constituencies of Punjab are
pending clearly violates the right of representation of the
people who might have been elected in the Electoral
College also depriving those people of their right to votw
in the presidential elections. It is the responsibility of the
honorable Supreme Court to look into these doubts
surrounding the elections of the President.

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ARGUMENTS ADVANCED

[ ISSUE 1] : Whether
the petitioner has a right as a
citizen to approach this Court under Art. 71(1)
whenever an election has been held in breach of the
constitutional provisions

On May 6, 1957, there was an election to the office of the

President and Shri Rajendra Prasad was declared elected.
Thereafter Dr. N. B. Khare filed the present petition
describing himself as an intending candidate and alleging that
there had been violations of the provisions of the Constitution
and that the election was in consequence not valid.
The Registrar of this Court returned the petition as not being
in conformity with the provisions of the Presidential and
Vice-Presidential Elections Act, 1952 (XXXI of 1952), and as
not satisfying the requirements of the Rules of this Court
contained in O. XXXVII-A. Section 14 of Act XXXI of 1952
provides that no election shall be called in question except by
an election petition presented to the Supreme Court in
accordance with the provisions of the Act and of the Rules
made by the Supreme Court under Art. 145 of the
Constitution; and it further provides that it should be
presented by any candidate at such election or by ten or more
electors.
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The Rules framed by this Court with reference to this matter

are contained in 0. XXXVII-A. Rule 3 prescribes that a court-
fee of the value of Rs. 250 should be paid on the petition and
r. 12 requires the petitioner to deposit a sum of Rs. 2,000 in
cash as security for the payment of costs that may become
payable by him. The petitioner is not a person entitled to
apply under s. 14 of the Act and his petition was also
defective as it did not comply with the requirements of rr. 3
and 12. It was accordingly returned by the Registrar. Against
that order, the present appeal has been brought under article
71(1) of the constitution. As the petitioner it is argued that the
that the Act and the Rules in question are void on the ground
that they derogate from the jurisdiction of the Supreme Court
to enquire into and decide all disputes and doubts arising out
of or in connection with the election of the President or the
Vice-President.

Article 71(1) of the constitution mentions :-

“The Supreme Court shall conduct an investigation and
render a final judgment on all doubts and disputes
arising out of or related to the election of a president or
vice president” And this Court will have to inquire into and
decide the same. But the question is whether there is anything
in the Constitution indicating the time at which and the
manner in which such doubts and disputes have to be inquired
into and decided.

It is a right granted by the constitution to its citizens under

article 71(1) to that they can approach the courts regarding the
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disputes arising out of the presidential and the vice

presidential election and the courts shall be the one to decide
them and its word should be final on the matter.

[ISSUE -2] : Whether the Supreme Court of India has

jurisdiction to inquire into and decide a ‘grave
doubt’ in connection with the president of India

 Violation of the right of representation

After the general elections in all the States and Union

territories of India, except in the Union territory of Himachal
Pradesh, which is to return four members to the Lok Sabha
and in two constituencies in the State of Punjab, the old Lok
Sabha was dissolved on April. 4, 1957 and the new Lok
Sabha was constituted on April 5, 1957 under Section 73 of
the Representation of the People Act (43 of 1951). As
required by Section 4 of the Presidential and Vice-
Presidential Election Act, 1952 (33 of 1952) the Election
Commission issued a notification in the Official Gazette
appointing April 16, 1957 as the last date for making
nominations, April 17, 1957, as the date for the scrutiny of the
nominations, April 20, 1957, as the last date for the
withdrawal of candidatures, May 6, 1957, as the polling date
and May 10, 1957, as the date for the counting of the votes
MEMORIAL ON BEHALF OF THE PETITIONER
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and the declaration of the result. The term of office of the

present President is due to expire on the mid-night of May 12,
1957. The reason for fixing the above time schedule
obviously was that the Presidential election should be
completed before the term of office of the present President
expired. The petitioner filed his nomination paper on January
28, 1957 as originally the polling was scheduled to commence
in that constituency on February 24, 1957. The polling,
however, has since been postponed and fixed for June 2,
1957. He has filed the petition as a citizen of India and as a
prospective member of Lok Sabha and contends that if the
Presidential election is held on May 6, 1957, the petitioner
and all the other members contesting in the elections would be
deprived of their right to vote and their right of representation
in the presidential elections would be violated.

Article 54 lays down the composititon of the electoral college

that is to vote for the election of the President of the Union:-

The President shall be elected by the members of an

electoral college consisting of—

(a) the elected members of both Houses of Parliament; and

(b) the elected members of the Legislative Assemblies of the

States.

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Explanation.—In this article and in article 55,

”State” includes the National Capital Territory of Delhi
and the Union territory of *Pondicherry.

 Violation of the right to participate in

elections

After the notification constituting the new Lok Sabha

was published in the Press on April 7, 1957, the petitioner in
the first petition applied to the Election Commission for the
supply of the nomination papers, which he eventually
received at Nagpur in the afternoon of April 10,1957. This left
a period of five days for the filing of the nomination paper
before the Returning Officer at New Delhi. Your Lordship it
is argued that the time period was too short and it prevented
him from filing a nomination. He has filed the petition as a
citizen of India and as an “intending candidate” for the
Presidential election. It is a shame that a body that has been
handed over the task as essential as conducting and
supervising the election process in the country shows this
degree of carelessness and incompetence that is deprives
some people of their right to contest in the election of the
President of the Union.

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PRAYER

Therefore, in the light of facts and circumstances of the

matter at hand, Petitioner most humbly pray that the
Hon’ble Court may be pleased to hold that:-
 That the Presidential and Vice Presidential
Elections Act and The Rules of the Supreme Court
are void on the grounds that they derogate from the
jurisdiction conferred under Article 71(1) of the
Indian Constitution.
 The petitioner Mr. Narayan Bhaskar Khare has
been deprived of his right to vote and his right to be
represented in the elections of the President of the
Union.
 The Supreme Court shall conduct an investigation
and render a final judgement on all doubts and
disputes arising out of or related to the election of
the President or the Vice President (one of which is
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the doubt regarding the composition of the

members of the Electoral College.

 Any other orders and/or reliefs 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 justice. It is prayed
accordingly.

DATED: 2/05/1957 Sd/-

PETITIONER

Through

Sd/-

COUNCIL

MEMORIAL ON BEHALF OF THE PETITIONER

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MEMORIAL ON BEHALF OF THE PETITIONER