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TEAM CODE : 28
10th M.K.NAMBYAR MEMORIAL
NATIONAL LEVEL MOOT COURT COMPETITION
10th M.K.NAMBYAR MEMORIAL
NATIONAL LEVEL MOOT COURT COMPETITION
BEFORE THE HON’BLE SUPREME COURT OF INDIA

BEFORE
THE HON’BLE SUPREME COURT OF INDIA

INDIAN NATINAL COMMON PARTY………………………………………………………PETITIONER

v.
INDIAN NATINAL COMMON PARTY………………………………………………………PETITIONER
UNION OF INDIA………………………………………………………………………………….RESPONDANT
v.
CLUBBED WITH
UNION OF INDIA………………………………………………………………………………….RESPONDANT
THE PRESIDENT OF INDIAN NATIONAL COMMON PARTY…………………….PETITIONER
CLUBBED WITH
v.
THE PRESIDENT OF INDIAN NATIONAL COMMON PARTY..………………………PETITIONER
UNION OF INDIA…………………………………………………………………………………RESPONDANT
v.

UNION OF INDIA…………………………………………………………………………………RESPONDANT

UPON SUBMISSION TO THE HON’BLE JUDGES OF SUPREME COURT

UPON SUBMISSION TO THE HON’BLE JUDGES OF SUPREME COURT

MEMORIAL ON BEHLAF OF RESPONDANT

MEMORIAL ON BEHLAF OF RESPONDANT

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TABLE OF CONTENTS
1.TABLE OF CONTENTS………………………………………………………02

2.TABLE OF ABBREVIATIONS……………………………………………….03

3.INDEX OF AUTHORITIES……………………………………………………04

A]STATUTES…………………………………………………………....04
B]CASES………………………………………………………………....06
C]BOOKS REFERRED………………………………………………....05
D]ONLINE DATABASE………………………………………………...06

4. STATEMENT OF JURISDICTION…………………………………………07

5. QUESTIONS PRESENTED…………………………………………………08

ISSUE No.1.WHETHER THE ORDINANCE ON

DEMOCRATIC REFORMS IS CONSTITUTIONAL UNDER
THE CONSTITUTUIN OF INDIA, 1950……………………

ISSUE No.2.WHETHER THIS ORDINANCE IS IN

CONTRAVENTION OF FUNDAMENTAL RIGHTS AS
ENSHRINED UNER PART 3 OF THE CONSTITUTION OF
INDIA, 1950………………………………………………….

ISSUE No.3.WHETHER THE 104TH CONSTITUTIONAL

AMENDMENT IS ULTRA VIRES TO THE CONSTITUTION
OF INDIA…………………………………………………
STATEMENT OF FACTS……………………………………………………..10

SUMMARY OF PLEADINGS…………………………………………………13

PLEADINGS……………………………………………………………………14

PRAYER………………………………………………………………………...28

MEMORIAL ON BEHLAF OF RESPONDANT

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TABLE OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And
AIR All India report
Ed. Edition
Hon’ble Honorable
ILR Indian law reporters
JT Judgment today
KB Law Reports King’s Bench
LR Law reports
Nag Indian law report, Nagpur series
No. Number
Ors. Other
Pat Indian law reports, Patna series
QB Law reports, Queens bench
SC Supreme court
SCC Supreme court cases
WLR Weekly law report

MEMORIAL ON BEHLAF OF RESPONDANT

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INDEX OF AUTHORITIES
A] STATUTES REFERED

1] STATUTES

1. REPRESENTATION OF PEOPLES ACT,1950.

2] CODIFIED LAWS

1. CONSTITUTION OF INDIA, 1950.

3] WRITS

1. WRIT OF MANDAMUS

MEMORIAL ON BEHLAF OF RESPONDANT

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B] BOOKS REFERED

1. Basu Durga Das, Introduction To The Constitution Of India,Wadhwa

And Company.
2. Basu Durga Das, Shorter Constitution Of India, Prentice Hall.
3. Bedi R.S. And Rita Aryan, The Constitution Of India, Orient Law House.
4. Brayan .A. Garner,Blacks Law Dictionary, 9th Edition
5. Jain M.P. And Jain S.P., Principles Of Administrative Law, Wadhwa And
Company.
6. Jain M.P., Indian Constitutional Law, 2018, Wadhwa And Company.
7. Micheal Allen, Cases And Material On Constitutional And
Administrative Law,Black Stone Press Limited.
8. Pandey J.N., Constitutional Law Of India, Central Law Agency.
9. Saharay H.K., The Constitution Of India An Analytical Approach,
Eastern Law House.
10. Shukla V.N., Constitution Of India, 2015, Eastern Book Company.
11. Shulka V.N.[Mahendra P Singh], Constitution Of India, Eastern Book
Company.
12. Takwani C.K., Lectures On Administrative Law, Eastern Book Company.
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C] CASES
1. Dr.Kailash Rai, The Constitutional Law of India,Page no.108,6th edition,Central
Law Publications,200

2. Francis Coralia Mullin v. Adminstrator, Union Territory of Delhi,AIR 1981 SC

746
3. Gopalan v. State of Madras,AIR 1950 SC 27
4. Indira sawhney v. union of india, AIR 2000 SC 498

5. Kehar singh v.union of India,AIR 1989 SC 653

6. Kharak Singh v. State of Uttar Pradesh,AIR 1963 SC 1295
7. Maneka Gandhi v. Union of India, AIR 1978 SC 597,620

8. Maneka Gandhi v. Union of India, AIR 1978 SC 597,620

9. National human rights commission v. State of Aruunachal Pradesh AIR 1996 SC
1234
10. National human rights commission v. State of Aruunachal Pradesh AIR 1996 SC
1234

11. Shrimath Balasaheb Patel v. Hon’ble Speaker of Karnataka

12. Udai Raj Rai,Fundamental Rights And Their Enforcement,page no.450,PHI
Learning Pvt. Ltd,2011
13. M\s Lahari recording company v. Union of India
14. Eskay veidio pvt ltd v. union of india
15. Binoy viswam v. union of india
16. Union of india v. azadi bachao andolan
17. Tilkchan motichand v. Hu.B Munish
18. The state of Bombay v. united motors [india] ltd
19. Titaghur paper mills co. ltd v. state of Orissa
20. Smt ujjam bai v. state of uttar pradesh

.
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D] ONLINE DATABASES
1.www.manupatra.com
2.www.sconline.com
3.www.legaleagle.com
4.www.jstor.com
5.www.prsindia.org
6.www.cadindia.org
7.www.contitutionofindia.net
8.https://clpr.org.in
9.www.rajyasabha.nic.in
10.www.indiankanoon.com
11.www.casemine.com
12.www.thehindu.com
13.www.indiatoday.in
14.www.hindusthantimes.in
15.timesofindia.indiatimes.com
16.latestnews.com
17.www.livelaw.in
18.www.news18.com
19.www.lawtimejournal.in
20.www.hellocouncil.com
21.www.lawnn.com
22.www.manupatrafast.in
23.www.oneindia.com
24.www.indiancitizenshiponline.in
25.www.scconline.in_
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STATEMENT OF JURISDICTION
This Hon’ble Court has jurisdiction to entertain the Writ of Mandamus under the
Aricle 32 of the Constitution Of India. The respondant does not dispute the
jurisdiction of the Hon’ble Court.
 Page |9

QUESTIONS PRESENTED
1. WHETHER THE ORDINANCE ON DEMOCRATIC REFORMS IS
CONSTITUTIONAL UNDER THE CONSTITUTUIN OF INDIA, 1950.
2. WHETHER THIS ORDINANCE IS IN CONTRAVENTION OF
FUNDAMENTAL RIGHTS AS ENSHRINED UNDER PART 3 OF THE
CONSTITUTION OF INDIA, 1950.
3. WHETHER THE 104TH CONSTITUTIONAL AMENDMENT IS ULTRA
VIRES TO THE PROVISIONS OF THE CONSTITUTION.
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STATEMENT OF FACTS
Indian National Common Man Party v. Union of India

1. ‘The Month’ is a monthly magazine having widest circulation in India; it

publishes diversified research articles written by acclaimed writers,
philosophers and statesmen. It has its own research wing headed by Mr.
Subramanya, who is a former Chairman of UGC. He was an acclaimed
professor and known for his expertise knowledge in socio-legal research.
Subramanya has published number of articles in International Journals.
Further, his scientific and empirical research has very little rate of sample
errors.Various States and the Central Government have formulated and
reformulated policies, enacted and reformed statutes based upon the research
work of Mr. Subramanya.

2. Mr. Subramanya was appointed as head of the ad hoc committee constituted

by Central Government to prepare a policy document on Democratic
Administration. The committee conducted extensive research and scientific
sample survey of Representative of People, Panchayat members, voters,
political party members, former Election Commissioners, retired judges of
High Courts and Supreme Court, etc. on the varied aspects of elections. The
committee submitted its recommendations to the Central Government.

3. The committee had used the data of Election Commission of India and of all
the states for its empirical survey. The same is scientifically analysed. The
analysis revealed that, 70% of the representatives of the people throughout the
country are the 4th generation representatives of the people from the same
family. Further data has revealed the disappointing fact that 50% of the
representatives of the people never became ministers even after getting elected
for more than 4 times.

4. Inter alia the Report recommended that in order to enhance the political
inclusiveness, the family centric political representation has to be discouraged.
 P a g e | 11

The committee also felt that every member of the society must have the
opportunity to become member of the legislative house. Therefore the
committee recommended limitation on the number of terms for which a person
may become a representative of the people. Further the committee has
recommended prohibition of resignation of the representatives of the people to
the Legislature with the twin objectives of ensuring a stable government and
good governance. Whoever resigns from the legislature shall attract
disqualification for life. The committee also recommended that it is need of the
hour to bring changes in the qualification for the offices of the President and
the Prime Minister.

5. The Government of India also felt that the recommendations of the committee
are worth to be considered in the light of forthcoming elections to Parliament
and different State Assemblies. Therefore the Central Government issued an
ordinance on Democratic Reforms. The Ordinance provided that -

Rule 1. No citizen shall become member of a legislative house for

more than 4 terms.
Rule 2. No duly elected representative of any legislative house shall
tender resignation to the membership of the house. Otherwise the
resigned member shall be disqualified for contesting the elections for
life.
Rule 3. No two persons from the same family shall contest for the
election to the same legislative house at a time.
(Family for the above purpose includes all the persons related by
blood, marriage or adoption)
Rule 4. No citizen shall become minister for more than two terms or
ten years cumulatively.

6. In due course of the time Parliament brought 104th amendment to the Constitution
of India which has effected changes in the following Articles of the constitution –

Art. 57. Eligibility for re-election.—A person who holds, or

who has held, office as President shall, subject to the other
 P a g e | 12

provisions of this Constitution, be eligible for re-election to that

office.
Provided, a person shall not hold the office for more
than two terms.

Art. 58. Qualifications for election as President.—(1) No

person shall be eligible for election as President unless he
(a) is a born citizen of India
XXX

Art. 75. 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.
Provided, no person shall be appointed as Prime Minister
unless he is a born citizen of India.
Provided further that, no person shall be appointed as a
Prime Minister for more than two terms.

7. The ordinance was challenged as unconstitutional by the Indian National

Common Man Party (INC) in the Supreme Court of India. INC contended that
the impugned ordinance is violative of fundamental rights of representative of
the people and the central government lacks the competency to issue the same.
Further, the 104th Amendment to the Constitution of India was challenged in
Supreme Court of India as ultra vires by the President of INC who is a
naturalized citizen of India. He was proposed as a Prime Ministerial candidate
for the forthcoming parliamentary election. The Supreme Court of India
clubbed both the petitions and posted them for the final hearing.
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SUMMARY OF PLEADINGS
ISSUE No. 1. WHETHER THE ORDINANCE ON DEMOCRATIC REFORMS
IS CONTITUTIONAL UNDER THE CONSTITUTION OF INDIA, 1950.

• Ordinance does not contravenes the fundamental rights enshrined under part 3
of the Constitution of India.
• The ordinance should be enacted as laws.
• The ordinances aiming good governance and stable government should be
encouraged.

ISSUE No .2. WHETHER THE ORDINANCE ON DEMOCRATIC REFORMS

IS IN CONTRAVENTION TO THE FUNDAMENTAL RIGHTS ENSHRINED
UNDER PART 3 OF THE CONSTITUTION OF INDIA.

• Right to equality does not mean right to contest for elections.

• Right to resign is not a fundamental right.
• Resigning does amount to disqualification for the lifetime.

ISSUE No .3. WHETHER THE 104TH CONSTITUTIONAL AMENDMENT IS

ULTRA VIRES TO THE CONSTITUTION OF INDIA.

• Amendments are brought to over come the inadequacy of the State.

• It is not ultra vires to constitutional provisions.
• Only born citizens can contest for Presidential candidate.
 P a g e | 14

PLEADINGS
1. Whether the Ordinance On Democratic Reforms is Constitutional under
Constitution Of India, 1950.

1.01. It is most respectfully submitted before the Hon’ ble Court that the
Ordinance on democratic reforms is constitutional under Constitution of India.
1.02. The ordinance issued by central government on democratic reforms are
constitutionally valid as such reforms are changes that are made to a country’s
system that allow it to become more democratic.
1.03.In A.K.Roy v. Union of India1,SC held that issuing ordinance is the
executive power of the president and his satisfaction regarding the necessity to
issue an ordinance is beyond judicial review and the prima facia is to be
established and circumstances has to be taken in account.
1.04.Hence,it is humbly submitted that the central government issued
ordinance on democratic reforms to bring changes in the qualification for the
officers of president and prime minister in the light of forth coming election to
parliament and different state assemblies.
A]The ordinance provided that,
1.4.1.Rule no.1-No Citizens shall become member of a legislative house for
more than four terms.
With the important recent exception of the Surge in information technology
activity. Both policy initiatives have been constrained because the aspiration to
acquire the symbols associated with the intermediate group have dominated
major policy changes in India’s political context are therefore possible only
with strong The fundamental fact that emerged from the political revolution
that power in political power resides in the people and not in the ruler which
became the governing premises of the constitutional exercise. Building the
Indian nation has required a conscious effort to bring its vast diversity into the
economic mainstream. Politically inclusion has function through a claim on
fiscal resources for the so-called intermediate classes. In principal this
intermediate groups could have generated economic activity and Employment

1
AIR 1982 SC 70
 P a g e | 15

for the larger number of poor to whom direct assistant was unmanageable. In
practice the amorphous intermediate groups have displayed Limited leadership
new leadership in Politically tranquil periods or under the duress of a crisis. to
faster growth while also breaking up the social hierarchies that persist in
limiting inclusion for long standing challenges remain undertaking effective
decentralization ,raising educational attainment ,placing limits on access to
fiscal resources through binding fiscal rules, and achieving for the discipline
through external competition.
1.4.2.Rule.2-No duly elected representatives of any legislative house shall
tender resignation to the membership of the house. Otherwise the
resigned member Shall be disqualified for contesting the elections for life.
There is something explosive about an era in which interest in politics grows
while faith in politics declines. What does it mean for the stability of a country
if more and more people were really keep track of the activities of an authority
that they are increasingly distrust.
A few years ago the world value survey, a large scale International research
project asked more than 73000 people in 57 countries if they believed
democracy was a good way to govern a country and nearly 92% said yes. But
that same survey found that in the past 10 years, around the world there has
been a considerable increase in calls for a strong leader “who does not have to
bother with Parliament and election” and that trust in governments and
political parties has reached historical low. it would appear that people like the
idea of democracy but loathe the reality. Resigning from office is a critical
ethical decision for individuals. Resignation also reminds one of the basic
moral resources for individuals of integrity. the option to resign reinforces
integrity, buttresses responsibility, supports accountability, and can provide
leverage and boundary drawing. I argue that the moral reasons to resign flow
from three related moral dimensions of integrity. Individual in office promises
to live up to the obligations of the office . this promise presumes that the
individuals have the capacity to make and keep promises the competent to do
the task of office and the ability to be effective, beside all virtual promises if
they act contradictory the stability of the government is an unimaginary.
1.4.3.Rule.3-No 2 two person from the same family shall contest for the
election to the same legislative house at a time.
 P a g e | 16

[family for the above purpose includes all the persons related by blood
,marriage or adoption]
A family dictatorship is a form of dictatorship that operate much like an
absolute monarchy, yet occurs in a nominally republican state. If human rights
are the essence of democracy, should politics guarantee them to the citizens
through an enlightened vigilance of Administrative machinery or through an
elected leadership against Intransigence of power hungry civil service
managed by Brilliant sons of the soil! the Midway has to be discovered by
reinventing the government in developing countries where strong
administration should induct social democracy to attain a corresponding with
political democracy.
They have the economic resources as well as the patronage networks or the
social capital accumulated over time because of the position of their family,
caste and clean in the community. this give them relatively easy access to
Prestige, politics and power.
Even As the older patronage network are being replaced by new ones, one
finds that the political higher face no major threat at all from Greater
democratic nation of society. identity-based political parties in India do not
seek rights and privileges for individual citizen but for their caste, clan and
ethnicity . this demands are often articulated by the vocal sections among this
group essentially those already privileged within that group as this dominated
families are accommodated in the Representative politics, they tend to
perpendicular at the same old cycle.
1.4.4. Rule.4-Citizen shall become minister for more than 2 terms or 10
years cumulatively.
It has been often considered that political dynasties go against the values
upheld by democracy since it does not provide an equal opportunity for
people to hold offices of power and service . With The set-up of the political
dynasty it seems as if position of power are exclusively dominated by a
particular clan or family. arguably the political dynasty Is said to monopolize
the system of government since it limits the chances of other common
Filipinos to serve the people . It Creates a brain drain in the sense that the new
and capable leader who could possibly perform better than those current in
office. The political dynasty undoubtedly Plays an influential role in
 P a g e | 17

Philippine society. families of political dynasties are sitting side-by-side to

delivery on important legislation that will Affect the future of more than 80
millions.
1.6.In R.C.Cooper v. Union of India2, the SC has stated that “the ordinance is
promulgated in the name of the President and in a constitutional sense on his
satisfaction.it is in truth promulgated on the advice of his council of ministers
and also on their satisfaction too.
B] The ordinance was passed for the welfare of the people.
1.5.It is most humbly submitted before the Hon’ ble Court that this ordinance
was passed for the welfare of the people. India is a welfare state and it’s the
duty of the government to ensure that its citizens enjoy the benefits of the
constitution to the fullest.This ordinance was passed aiming a stable
government and good governance. The maxim salus populi est suprema lex
meaning welfare of the people is the supreme law and necessitia public
majorest quam means public necessity is greater than private justifies the
ordinance.

2
AIR 1970 SC 564
 P a g e | 18

2. Whether the Ordinance on Democratic Reforms is in contravention of

Fundamental Rights enshrined under part 3 of Indian Constitution, 1950.

2.01.its most respectfully submitted before the Hon’ble Court that the ordinance
on democratic reforms is not violative of right to equality3 and right to life and
personal liberty4 because right to contest for election is not a fundamental right, it
is a legal right.
A] Respondant recognizes The Right To Equality under The Constitution Of
India.
2.02.it is further submitted before the Hon’ble Court that every citizen is
guaranteed the right to equality under art.14 of the Constitution of India.
2.03
B] Right to equality does not means that right to contest for elections.
2.04.it is submitted before the Hon’ble Court that equality has been defined as the
condition of possessing the same rights, privilages and immunities and being liable
to the same duties5.
2.05.it is now submitted before the Hon’ble Court that the equality before the law
or equal protection of law does not mean the same treatment to everyone6.
Therefore the under lying principle of equality is not uniformity of treatment to all
in all respects but rather to give them the same treatment in those respects in which
they are similar and different treatment in those respects which they are different.
In a nutshell stated equals must be treated equally while unequals must be treated
differently7.
2.06.further it is submitted before the Hon’ble Court that the principle of equality
does not mean that every law must have universal application to all persons who
are not by nature, attainment or circumstances in the same position. The varying
needs of different classes of persons require different treatment.

3
Article 14 of the Constitution of India, 1950.
4
Article 21 of the Constitution of India,1950.
5
Blacks law dictionary
6
Mahendra pal singh,page no. 50
7
Jennings,law of constitution, page no.94
 P a g e | 19

C]The Ordinance is not violative of equality clause under art.14.

2.07..it is most respectfully submitted before the Hon’ble court that this ordinance
is not in violation of art.14 of the constitution . the right to equality is recognized
as one of the basic features of the Constitution 8. Art.14 clearly lay down that the
state shall not deny to any person equality before law or the equal protection of
laws within the territory of India. The first expression equality before law which is
taken from the English common law is a declaration of equality of all persons
within the territory of India. Under the constitution of India, the state is under an
obligation to take necessary steps so that every individual is given equal respect
and concern which he is entitled to as a human being.
2.08.the guiding principle of art.14 is that all persons and things similarly
circumstanced shall be treated alike in both privileges conferred and liabilities
imposed9.hence, what it forbids is discrimination of persons who are in
substantially similar circumstances or conditions .It does not forbids different
treatmemt of unequal.
2.09. in M.G.Bodappanavar v. State of Karnataka10,where it was observed by the
supreme court that-equality is a basic feature if the constitution of india and the
treatment of equals unequally or unequals as equals will be violation of basic
structure of constitution.
2.10.Here in this case,its humbly submitted that the rule no.3 in the ordinance,right
to contest for election is not a fundamental right11 its merely just a statutory
right.Voting in India is neither a fundamental right nor fundamental duty, but
merely a legal right, given to the people by means of the represention of the people
Act, 1950, section 62(1).In the PUCL vs Union of India12 case the supreme court
has ruled that right to vote is a statutory right ( an individual's legal right).By this
ordinance the state is providing equality to all citizens to over rule the family
centric political representation prevailing in our country which is clearly
mentioned in para.3 of the facts that 70% of the representatives of people through
out the country are the 4th generation representatives of people from same

8
Indira sawhney vs union of india, AIR 2000 SC 498
9
Chiranjit lal chowdhury vs union of india, AIR 1951 SC 4
10
M.G.Bodappanavar v. State of Karnataka,AIR 2001 SC 260,264
11
Pramod laxman Gudhadhe v. Election Commission of India and Ors.,AIR 2018 SC 2356
12
AIR 2004 SC 456
 P a g e | 20

family.further data has revealed that 50% of representatives of people never

became ministers even after getting elected for more than 4 times.
2.11. hence,it is submitted that only after the enforcement of this ordinance every
member of the society shall occupy the oppercunity to become the member of
legislative house.

2.12. therefore, it is most humbly proved before the Hon’ble Court that this
ordinance is not in contravention to the right to equality clause,art.14 of
Constitution of India.
D]Respondant recognizes the right to life and personal liberty under the
constitution.
2.13.it is most humbly submitted before the Hon’ble Court that every citizen in
India is guaranteed the Right to Lfe and Personal liberty under art.21.
2.14.it is submitted that art.21,is the heart of Indian constitution,even though
couched in negative language, confers on every person the fundamental rights to
life and personal liberty and has become an inexhaustible source of many
rights13.These rights are as much available to non-citizens as to those whose
citizenship is unknown 14 and our court assigns them paramount position among
rights15.
E] Disqualifying from contesting in the election for lifetime does not amount
to the violation of right to life and personal liberty.
2.15. it is most humbly submitted before the Hon’ble Court that in Bachan Singh
v. State of Punjab16 art.21 is expanded and said that a person may be deprived of
his life and personal liberty in accordance with fair, just and reasonable procedure
established by valid law.
2.16.it is further provided that as per the rule 2 of this ordinance, no duly elected
representatives of any legislative house shall tender resignation to the membership
of house. Otherwise the resigned member shall be disqualified for contesting the
election for life. according to the representation of people act, 1951

13
Maneka Gandhi v. Union of India, AIR 1978 SC 597,620
14
National human rights commission v. State of Aruunachal Pradesh AIR 1996 SC 1234

15
Kehar singh v.union of India,AIR 1989 SC 653
16
AIR 1980 SC 898
 P a g e | 21

disqualification means disqualified for being chosen as and for being a member of
either house.
2.17. A member of the legislative assembly has no right to resign, firstly
because the electors have no authority or right to recall him. The petitioner submits
that resignation is lop sided ex-parte and is unconstitutional, without taking the
public in-confidence which had elected him, the resignation in itself is bad. It is
also submitted that constitutional provisions do not give any right to resign an
elected MLA for a period of five years, therefore, he is obliged and duty-bound to
serve his electors and his office can be declared vacant only if the member of the
legislative assembly suffers with some disqualifications and tenders his resignation
and the resignation is accepted by the Speaker after due enquiry.If there was no
good reason for the M.L.A. to resign and in view of this fact the resignation
tendered by M.L.A. would be bad17.The electors have no right of recall of the
member of the Legislative Assembly, it must be held that such a member has
no right to resign now requires consideration by this Court. The substance of the
argument is that the electors' society has a right over such a member because white
electing him, they have reposed some confidence in him. As the electors society
has elected him, their confidence cannot be betrayed and such a person is not
entitled to resign. The question is of an individual right against the right of the
society. What, then, is the rightful limit to the sovereignily of the individual over
himself ? Where does the authority of the society begin ? How much of the human
life should be assigned to individuality and how much to the Society18
2.17.its most humbly submitted that the resignation of representatives of people is
not a forceful act rather it is a voluntary act done by themselves.every duly elected
representative is entitled with certain duties both legal as well as moral under the
Indian constitution. So it should be made sure that the representative of people for
the house should not resign from his designation.
2.18.thereby it is concluded before the Hon’ble Court that the rule no.2 of the
ordinance is not violative of art.21 of the Indian constitution.this was included in
the ordinance with the twin objectives of ensuring a stable government and good
governance.as our country holds the un-destructable strong pillars of democratic
republic within our preamble resignation while holding the post of a representative

17
B.N.Bajpai v. Ramdayal Uike &Ors.,https://indiankanoon.org,(last visited 19/02/2020)
18
Ibid
 P a g e | 22

in legislature indicates that he is not efficient and further not eligible to hold that
designation next time.therefore by this ordinance the ingnited strong minded
citizens are getting the previlage.
 P a g e | 23

3.Whether the 104th Constitutional Amendment is ultra vires to the Constitution

of India.

3.01. it is most humbly submitted before the Hon’ble Court that

The 3rd issue speaks about the ultra vires nature of the ordinance. Part 20 of
the Constitution contain Article 368, titled as amendment to the constitution.
3.02.The time is not static, it goes on changing. With it the life of a nation also
changes. The social, economic and political conditions of the people go on
changing . particularly law ,the constitutional law of the country must also
change in order to adapt it to the changing needs, the changing philosophy, the
change in the life of the people it there therefore required from mechanism for
the law to serve the contemporary needs of the people. such a mechanism is
known as the amendment of the law the amendment of the Constitution of the
country. 368 power of Parliament to amend the constitution and procedure
therefore .
3.2.1. not with standing anything in this constitution ,parliament may in
exercise of its constituent power are meant by way of addition, variation Or
repeal any provision of this constitution in accordance with the procedure laid
down in this article.
3.03. An amendment of this constitution may be initiated only by the
introduction of a bill for the purpose in either House of Parliament and when
the bill is passed in each house by a majority of the total membership of not
less that house and by a majority of not less than two third of the members of
that house present and voting. (It shall be presented to the president who shall
give his assent to the bill and their upon) the constitution shall stand Amended
in accordance with the terms of the bill.
3.04.The amendment shall also required to be ratified by the Legislature of not
less than one half of the States by the resolution to that effect passed by those
legislature before the bill making provisions for such amendment is presented
to the president for a assent.
3.05.One such provisions that has to be amended by means of ratification by
resolution passed by not less than one third of the state which has affected
changes in the following articles are article 57 article 58 and article 75 of the
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Indian Constitution under 104 amendment which was challenge ultra vires by
the president of INC but the one fourth amendment was within the preview of
Article 368 of the Indian constitution and hence it is not ultra vires in nature as
it demand for ratification by the state. The article which were challenged as
ultra vires reads as follows:
1. Article 57 eligibility for re-election.
A person who holds or who has held office as president shall subject to
the other provisions of this constitution be eligible for re-election to
that office. Provided a person cannot hold the office for more than two
terms.
2. Article 58 qualification for election as president.
no person shall be eligible for election as president unless he-
A) is a born citizen of India.
XXX
3. Article 75 other provisions as to ministers.
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. Provided no person shall be appointed as prime
minister unless he is a born citizen of India. Provided further that no
person shall be appointed as a prime minister for more than 2 terms.

3.06.Article 57 which speaks about the eligibility for the re-election.

The said amendment which brought changes in the said article is not ultra
vires -which states as follows that a person shall not hold the office for more
than two terms. This is because of the empirical fact that 50% of the
representatives of the people never become Minister even after getting elected
for more than 4 times. In order to achieve effective and betterment change in
the interest of the country as a whole this changes in the above said article that
is article 57 need to be amended19.
3.07.Article 58 qualifications for election as president,
Which states as follows,

19
Charan lal sahu v. Neelam sanjeeva teddy,AIR 1978 2 SCC 500
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No person shall be eligible for election as president unless he,

A) is a born citizen of India
B) XXX
The amended part of this article gets its strong support from article 71 which
states as follows,
3.08.Article 71 Matters relating to or connected with the election of a President
or vice president.
1) 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 decision shall be final.
2) If the election of a person as president or vice president is declared void
by the supreme court acts done by him in the exercise and performance of the
powers and duties of the office of president or vice president as the case may
be on or before the date of the decision of the supreme court shall not be
invalidated by reason of death declaration.
3) Subject to the provisions of this constitution Parliament may by law
regulate any matter relating to or connected with the election of a President or
vice president.
4) The election of a person as president or vice president shall not be called
in question on the ground of the existence of any vacancy for whatever reason
among the member of the electoral college electing him.
3.09.Under this article the supreme court has been given the Exclusive
authority to decide all doubt and disputes connected with the election of the
president or the vice president. Subject to this and any other provisions of the
Constitution Parliament may by law regulate any matter connected with the
election of the president or the vice president. Show the clause 3 of the article
71 which clearly states that the Parliament can regulate any matter relating to
or connected with the election of a President or the vice president by making
effective law.
3.10. In Soniya Gandhi’s case(2004), even though she was the one who won in
the election to the Loksabha and also she was the proposed Prime ministerial
candidate, her citizenship was questioned. As she was a naturalized citizen of
India, so she was said ineligible to become a Prime ministerial candidate.
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3.11. So, the question of ultra vires loses its validity in this pursuit. Article 75
-other provisions as to ministers , 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. Provided no person shall be appointed as prime
minister unless he is a non-citizen of India. Provided further that no person
shall be appointed as a prime minister for more than 2 terms. The amendment
to the said article is essential because the constitution incorporates the
principle of responsible government according to which the executive is made
answerable for every act it does in relation to the administration of the affairs
of the country to the popular house of the Legislature. As such the amendment
is concern on the office of prime minister it is important because in the
mechanism of the Parliamentary form of government.
3.12.Government the Prime Minister occupies a crucial position. Jennings
describes him as the “keystone of the constitution”. He further observe “all
roads in the constitution leads to the Prime Minister” . Earlier John Morley had
described him as the “keystone of the cabinet arch”. The prime minister is
the leader of the majority party in Loksabha. he Is the head of the council of
ministers . He Co ordinates government policies . He is there channel of
communication the only link between the president and the council of
ministers . In this connection reference maybe made to the provisions of the
art.78 Who is responsible for the appointment of the minister and allocation of
work and among them. he can Compel the resignation of a minister and Invoke
the presidential Power to dismiss an unwanted minister and therefore all
ministers hold office at his discretion. A minister who is not prepared to accept
his leadership must tender his resignation.
3.13.The prime minister is the principal spokesman of the cabinet and it
defenders in the parliament . He can obtain dissolution of the loksabha. He is
the same end of the cabinet, summons its meetings and decides over them. His
resignation would automatically amounts to a resignation of the minister’s who
composed the government. Therefore the prime minister position is one of the
great father influence and prestige he has the fabric of the parliamentary form
of government in working order. The entire constitution and scenarios would
appear to revolve around his personality. He has therefore been described as
the “keystone of the cabinet arch”. When such a huge responsibility falls on
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the shoulder there is a necessity to bring effective changes in article 75 which

is supported by article 84.
3.14. This amendment has proposed difficult for the President of INC who is a
competent to Prime ministerial candidate for the forth coming election, as he is
naturalized citizen of India. Because of the changes that were in certain
provisions of above mentioned articles in the view of 104th amendment
parliament has to put a bar on his participation.As the amendment within the
premises of the provisions of the Constitutions which are for the betterment of
the government as well as nation as a whole. So, such a bar is inevitable for a
stable government and good governance.
3.15. Thereby it is most humbly submitted before the Hon’ble Court that the
104th Constitutional Amendment is not in ultra vires to the Constitutional
provisions and should not be enforced.
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PRAYER
WHERE FORE IN THE LIGHT OF THE SUBMISSIONS MADE, ARGUMENTS
ADVANCED AND THE AUTHORITIES CITED, THE COUNCIL ON BEHALF
OF PETITIONER HUMBLY PRAY BEFORE THIS HON’BLE COURT TO
KINDLY,

1. ENACT THIS ORDINANCE AS IT IS CONSTITUTIONAL TO THE

PROVISIONS OF THE CONSTITUTION OF INDIA.
2. IT DOESN’T CONTRAVENS THE FUNDAMENTAL RIGHTS
ENSHRINED IN PART 3 OF THE CONSTITUTION OF INDIA.
1. ENFORCE THE 104TH CONSTITUTIONAL AMENDMENT AS IT IS NOT
ULTRA VIRE IN ITS NATURE

AND PASS ANY SUCH ORDER OR DECREE WHICH

MAY DEEM FIT IN THE INTREST OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

PLACE : BELAGAVI Respectfully submitted,

DATE :20TH DAY OF FEBRUVARY 2020 Sd/-_______

COUNCIL ON BEHALF OF RESPONDANT.

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MEMORIAL ON BEHLAF OF RESPONDANT