PETITIONERS T 33

T 33 “A”

14TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL

MOOT COURT COMPETITION, 2021

IN THE HIGH COURT OF GULMOHAR

(WRIT JURISDICTION)

W.P No. _______OF 2021

UNDER ARTICLE 226 OF THE CONSTITUTION

IN THE MATTER OF:

MR. GIDUGA .......................................................................................... (PETITIONER)

V.

UNION OF SAPOTA & ANOTHER.… .................................................. (RESPONDENT)

UPON SUBMISSION TO THE HON’BLE HIGH COURT OF GULMOHAR

-MEMORIAL FILED ON BEHALF OF THE PETITIONER-

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................... 4

INDEX OF AUTHORITIES ...................................................................................................... 5

STATUTES REFERRED ...................................................................................................... 5

LIST OF CASES……………………………………………………………………………5

BOOKS REFERRED ............................................................................................................. 6

STATEMENT OF JURISDICTION .......................................................................................... 7

STATEMENT OF FACTS ........................................................................................................ 8

STATEMENT OF ISSUES ..................................................................................................... 10

SUMMARY OF ARGUMENTS ............................................................................................. 11

ARGUMENTS ADVANCED ................................................................................................. 12

I. WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF

GULMOHARI) ACT, 2021 IS CONSTITUTIONALLY VALID?................................12
[1.1] DENIAL OF EQUALITY BEFORE LAW………………………………………13
[1.1.1] NO REASONABLE CLASSIFICATION BASED ON INTELLIGIBLE
DIFFERENTIA…………………………………………………………………..13
[1.1.2] ARBITRARY ACTION OF THE STATE………………………………15
[1.2] VIOLATES RIGHT TO FREEDOM GUARANTEED UNDER ARTICLE 19 OF
CONSTITUTION OF SAPOTA………………………………………………………16
[1.2.1] VIOLATES RIGHT TO FREEDOM OF SPEECH AND EXPRESSION U/A
19 (1) (A)………………………………………………………………...17
[1.2.2] VIOLATES RIGHT TO FREEDOM U/A 19 (1) (G) OF THE
CONSTITUTION OF SAPOTA………………………………………...19

II. WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES

THE BASIC STRUCTURE OF THE SAPOTA CONSTITUTION? ……………...…21

[2.1] ARTICLE 14 IS VIOLATED AS TOO MUCH DISCRETIONARY POWER IS

PROVIDED TO THE CHAIRMAN OR SPEAKER OF THE HOUSE……………....22

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[2.2] ARTICLE 21 IS VIOLATED AS RIGHT TO FAIR HEARING IS NOT GIVEN

TO THE DISQUALIFIED MEMBER…………………………………………………23

[2.3] ARTICLE 19 (1) (A) IS VIOLATED AS RIGHT TO THINK FREELY IS NOT

GIVEN TO PARLIAMENTARIANS OR OTHER STATE LEGISLATIVE
MEMBERS…………………………………………………………………………..…25

III. WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR
OF GULMOHAR TO INVITE A POST-POLL ALLIANCE TO FORM THE
GOVERNMENT?...............................................................................................................28

[3.1] IT DOES NOT VIOLATE THE DEMOCRATIC FEATURES OF THE

NATION AND IS A FREEDOM U/A 19 (1) (C) OF THE CONSTITUTION OF
SAPOTA……………………………………………………………………………...28

PRAYER .............................................................................................................................. 30

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LIST OF ABBREVIATIONS

S. No. ABBREVIATION MEANING

1. AIR All India Reporter
2. & And
3. PIL Public Interest Litigation
4. Ors. Others
5. u/a Under article
6. IPC Indian penal code
7. v. VS
8. Ed. Edition
9. All All India
10. Hon‟ble Honorable
11. IC Indian Cases
12. IPC Indian Penal Code
13. Sec. Section
14. n. Foot Note no.
15. Art. Article
16. p. Page No.
17. SC Supreme Court
18. SCC Supreme Court Cases
19. SCJ Supreme Court Journal
20. SCR Supreme Court Reporter
21. Sec. Section
22. v. Versus

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INDEX OF AUTHORITIES

STATUTES REFERRED

1. CONSTITUTION OF INDIA

LIST OF CASES
1. THE AUTHORISED OFFICER, THANJAVUR & ANR. V. S. NAGANATHA AYYAR
(1979) 3 SCR .
2. NATIONAL HUMAN RIGHTS COMMISSION V. STATE OF ARUNACHAL PRADESH
AIR 1996 SC 1234.
3. SIRAJUDDIN V. STATE (1967) 3 MAD. 659
4. SUBRAMANIAN SWAMY V. CBI, (2014) 8 SCC 682: (2014) 4 MLJ 603.
5. K. THIMMAPPA V. CHAIRMAN, CENTRAL BOARD OF DIRECTORS AIR 2001 SC 467:
(2001) 2 SCC 259.
6. HSEB V. SURESH AIR 1999 SC 1160.
7. RAGHUNATH RAO, GANAPATH RAO V. UNION OF INDIA AIR 1993 SC 1267.
8. RAMANA DAYARAM SHETTY V. INTERNATIONAL AIRPORT AUTHORITY OF
INDIA AIR 1979 SC 1628: (1979) 3 SCC 489.
9. PUNJAB V. DAULAT SINGH , (1946) 73 I.A 59, (1946) A.PC. 66 (IN CONNECTION
WITH SECTION 298 GOVERNMENT OF INDIA ACT, 1935 WHICH PROHIBITED
DISCRIMINATION ON THE GROUND OF RELIGION, RACE ETC.)
10. STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN (1951) S.C.R 525, 530, (1951)
A.SC. 226.
11. SYED QUASIM RAZVI V. HYDERABAD (1953) S.C.R 589, (1953) A.SC. 156.
12. MANEKA GANDHI V. UNION OF INDIA AIR 1978 SC 597 : (1978) 1 SCC 248.
13. KHARAK SINGH V. STATE OF UTTAR PRADESH AIR 1963 SC 1295: (1964) 1 SCR 332.
14. STATE OF GUJARAT V. MIRZAPUR MOTI KURESHI KASSAB JAMAL (2005) 8 SCC
534: AIR 2006 SC 212.
15. STATE OF KARNATAKA V. ASSOCIATED MANAGEMENT OF ENGLISH MEDIUM
PRIMARY AND SECONDARY SCHOOLS, AIR 2014 SC 2094 : 2014 (9) SCC 485.
16. CELLULAR OPERATORS ASSOCIATION OF INDIA V. TRAI, (2016) 7 SCC 703 : AIR
2016 SC 2336.

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17. CHINTAMAN RAO V. STATE OF MADHYA PRADESH AIR 1951 SC 118 : 1950 SCR
759.
18. KIHOTO HOLLOHAN V. ZACHILLHU AIR 1993 SC 412 : 1922 SUPP (2) SCC 651.
19. SHRINIVASA RAO V. J VEERAIAH, AIR 1993 SC 929; RL BANSAL V. UNION OF
INDIA, AIR 1993 SC 978 : 1992 SUPP (2) SCC 318.
20. NARAINDAS V. STATE OF MADHYA PRADESH AIR 1974 SC 1232.
21. Sudhir Chandra v. Tata Iron & Steel Corporation Limited, AIR 1984 SC 1064, 1071 : (1984) 3
SCC 369.
22. MANEKA GANDHI V. UNION OF INDIA, (1978) 2 SCJ AT 350.
23. DISTRICT REGISTRAR AND COLLECTOR V. CANARA BANK, (2005) 1 SCC 496 : AIR
2005 SC 186.
24. UNION OF INDIA V. AMRIK SINGH, AIR 1991 SC 564 : (1991) 1 SCC 654.
25. DK YADAV V. JMA INDUSTRIES, (1993) 3 SCC 259.
26. HAJI ABDOOL SHAKOOR & CORPORATION V. UNION OF INDIA, JT 2001 (10) SC
438.
27. INDIA REAL ESTATE CORPORATION LIMITED V. SEBI, (2013) 1 SCC 1 (137).
28. LIFE INDIA CORPORATION LIMITED V. MANU BHAI D SHAH AIR 1993 SC 171 :
(1992) 3 SCC 637.

BOOKS REFERRED
1. HM SEERVAI, CONSTITUTIONAL LAW OF INDIA (4TH EDITION, VOLUME 1 AND 2).
2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH
EDITION, VOLUME 1 , 2 AND 10).
3. INTERNATIONAL TREATIES –
a) UNIVERSAL DECLARATION OF HUMAN RIGHTS.
b) INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.

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STATEMENT OF JURISDICTION

The Petitioner humbly approaches the Hon‟ble High Court of Gulmohar under Article 226 of
the Constitution.

Article 226 – Power of High Courts to issue certain writs.

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without

(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date on
which the copy of such application is so furnished, whichever is later, or where the High Court is
closed on the last day of that period, before the expiry of the next day afterwards on which the
High Court is open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article
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STATEMENT OF FACTS

I. Prologue

The Social Democratic Republic of Sapota is a Union of States which gained its independence
from pioneer rule at the same time as India. SDRS laid out its own a few years after India and got
gigantic bits of the Indian Constitution for its own motivations. SDRS, similar to India, was
shaped out of territories administered by the British, embraced a Westminster Parliamentary type
of Government and its general set of laws depends to a great extent on the custom-based law.
Given the experience of India with the Tenth Schedule, the Sapotan Constitution was corrected in
2020 (The Constitution (Thirty Sixth) Amendment Act, 2020).

II. The controversial bill

The State of Gulmohar is perhaps the most extravagant state in Sapota appreciating both a high
positioning in the Human Development Index and a high for every capita GSDP. A majority of the
residents of Gulmohar (65% as of the last census) consider the official language of the state,
Gulmohari - a classical language with a long history and present in the Eighth Schedule of the
Constitution - as their first language. As per census data, the percentage of native Gulmohari
speakers has fallen from nearly 95% in 1971 to 65% as of 2021. As of 2021, the Chief Minister of
Gulmohar, Ms Azhilu, leads the Gulmohar Rashtra Party (GRP) which has 174 seats in the
Gulmohar Legislative Assembly out of a total of 300. In May 2021, civil society organizations in
Gulmohar came together to hold the largest demonstration ever seen in the history of the state, in
the capital city of Aura. The gathering was held to demand that the Government of Gulmohar save
the Gulmohari language and Gulmohari speaking people from “being swamped by outsiders”. To
this end, the organizations submitted a list of demands to the Chief Minister, the most prominent
being that sixty-five percent of all government and private sector jobs in the State should be
“reserved” for Gulmohari speaking people, the same was accepted by Ms Azhilu and she would
introduce a Bill to this effect in the State Assembly. In June 2021 a draft bill was prepared and
placed by the CM before the Cabinet. The debate was acrimonious but eventually the Cabinet
approved the Bill. Mr Giduga and two other Ministers tendered their resignations to the Governor
protesting that the Bill was unconstitutional and xenophobic. On June 30, 2021, Ms Azhilu

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introduced the Gulmohar (Promotion and Protection of Gulmohari) Bill, 2021 (“the Bill”). Sensing
the hostility of a section of her own party (not to mention the Opposition) to this Bill, Ms Azhilu
introduced the Bill as a Money Bill and the same was certified by the Speaker as a “Money Bill”.
A three-line whip had been issued by the GRP to its members to vote in favour of the Bill, but Mr
Giduga and 30 members voted against it in an effort to defeat it. However, their votes were
automatically invalidated because of the whip and the 31 members were disqualified as MLAs.
The Bill, however, passed with a margin of 143 to 125 (the Speaker not being permitted to vote)
and was signed into law by the Governor thereafter. As soon as the Bill came into force, it was
challenged in the High Court of Gulmohar by Mr Giduga, who himself was not a “native
Gulmohari” for the purposes of the law, on the ground that it was against the Constitution of
Sapota, specifically in the context of the requirement for private enterprises to give preference to
native Gulmoharis in employment. The court admitted the petition while noting that the petitioner
wished only to challenge one aspect of the law without waiving his right to challenge the
remaining parts of the law at an appropriate time.

III. A Surprise Result

Following the announcement of fresh elections, Mr Giduga and the other disqualified members
formed the Sapota Bachao Party (SBP) breaking away from GRP and attracting other members of
opposition parties as well. Elections were held in the month of August, and to the shock of
everyone concerned, GRP did not win a majority (as opinion polls had predicted). Within 24 hours
of the results being declared, Ms Azhilu was designated leader of the GRP, Mr Giduga the leader
of the SBP and Mr Ka‟age, the leader of PPS. At Mr Giduga‟s house, the two leaders announced
that they have formed a post-poll alliance and having the numbers, would approach the Governor
to form the Government. Just before the completion of the forty-eight-hour deadline, Ms Bulbul
announced that she would invite Ms Azhilu to form the Government, since the text of the
Constitution was clear and a “post-poll alliance” was not envisaged under it. In the hearing, Ms
Azhilu‟s lawyer agreed to a stay on the swearing-in, provided the court also heard the pending
petition on the constitutional validity of the Gulmohar (Promotion and Protection of Gulmohari)
Act, 2021 along with the present case at an early date.

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STATEMENT OF ISSUES

ISSUE I.

WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF

GULMOHARI) ACT, 2021 IS CONSTITUTIONALLY VALID?

ISSUE II.

WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES

THE BASIC STRUCTURE OF THE SAPOTA CONSTITUTION?

ISSUE III.

WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF

GULMOHAR TO INVITE A POST-POLL ALLIANCE TO FORM THE
GOVERNMENT?

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SUMMARY OF ARGUMENTS

WHETHER THE GULMOHAR (PROMOTION AND PROTECTION OF

GULMOHARI) ACT, 2021 IS CONSTITUTIONALLY VALID?
It is humbly submitted before this Honorable court that Gulmohar (Promotion and
Protection of Gulmohari) Act, 2021, is not constitutionally valid. Primarily, The Gulmohar
(Promotion and Protection of Gulmohari) Act, 2021 is violative of Article 14 of the
Constitution of Sapota as it is based on unreasonable classification and denies equality
before the law which is arbitrary action of the State. Secondly, violates right to freedom
guaranteed under article 19 of constitution of sapota u/a 19 (1) (a)Arbitrary Action of the
State and violates Right to Freedom u/a 19 (1) (g) of the Constitution of Sapota.

II

WHETHER THE 2020 AMENDMENT TO THE CONSTITUTION VIOLATES

THE BASIC STRUCTURE OF THE SAPOTA CONSTITUTION?
It is humbly submitted before this honorable court that, the Constitution (Thirty – Sixth)
Amendment Act, 2020, which amended the Schedule 10 of the Sapotian Constitution,
violates the basic structure of the Constitution of Sapota and thus, is constitutionally
invalid. Primarily, Article 14 is violated as too much discretionary power is provided to the
Chairman or Speaker of the House. Secondly, Article 21 is violated as Right to Fair
Hearing is not given to the disqualified member. Thirdly, Article 19 (1) (a) is violated as
Right to think freely is not given to Parliamentarians or other State Legislative Members.

III.

WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR OF

GULMOHAR TO INVITE A POST-POLL ALLIANCE TO FORM THE
GOVERNMENT?
It is humbly submitted before this Honorable court that the Governor can legally direct the
Governor of Gulmohar to invite a post – poll alliance to form the Government because it does not
violate the Democratic Features of the Nation and is a freedom u/a 19 (1) (c) of the Constitution of
Sapota.

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ARGUMENTS ADVANCED

1. Whether the Gulmohar (Promotion and Protection of Gulmohari) Act, 2021

is constitutionally valid?

1. It is humbly submitted before this Honorable court the Gulmohar (Promotion and Protection of
Gulmohari) Act, 2021, is not constitutionally valid. Primarily, Denial of Equality Before Law
[1.1]. Secondly, Arbitrary Action of the State [1.2].

[1.1] DENIAL OF EQUALITY BEFORE LAW

[1.1.1] No Reasonable Classification based on intelligible differentia

2. The Article 14 of the Constitution of Sapota clearly states that the State shall not deny to any
person equality before the law and the equal protection of the laws in the territory of India.1
3. Article 14 of the Constitution not only bars discrimination and prohibit discriminatory laws but
also proves to be bulwark against any arbitrary or discriminatory action of the state.2 It is indeed
the pillar on which rests securely the foundation of our Democratic Republic, and therefore, it
must not be subjected to a narrow, pedantic or lexicographic approach.3 It was also laid by the
hon‟ble Supreme Court in the International Airport Authority Case4 that Article 14 strikes at its
arbitrariness because an action that is arbitrary, must necessarily involve negation of equality.
4. In the present case, the Gulmohar (Promotion and Protection of Gulmohari) Act 2021 passed by
the Government of Gulmohar is an arbitrary act of the state which clearly negates the principles
of equality.
5. Referring to Section 47 of the Gulmohar (Promotion and Protection of Gulmohari) Act 2021, it
states that Notwithstanding anything contained in any law, any industry, office, business or shop
which has less than sixty – five per cent of its employees being native Gulmoharis in the
previous calendar, shall be liable to pay a fine of one percent of its turnover for every one per
cent less than the required sixty – five percent.5

1
India Const. art. 14.
2
MP Jain, Indian Constitutional Law 907 (Lexis Nexis 2018).
3
1 H.M Seervai, Constitutional Law of India 437 (Law and Justice 2015).
4
(1979) 3 SCR .
5
Annexure A of the Moot Proposition.
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PETITIONERS T 33

6. The aforementioned section violates the right to equality as it does not follow the Doctrine of
Reasonable Classification. The State of Gulmohar already had 65% of the individuals which
used to speak Gulmohari as per the census of 2021.6 So, it clearly states that still the more than
majority population of the state used to speak the native language and there was no such need of
interference from the State Government so as to provide for reservation for any kind. The
present classification of the individuals on the basis of speaking Gulmohari is not based on
intelligible differentia and breaches Article 14. The Section 47 of the act creates a pressure on
the private industries, offices, businesses or shops to admit 65% of the total employee as native
Gulmoharis which establishes an unreasonable classification between the individuals who are
not Gulmoharis and who are.
7. As laid down in the case of National Human Rights Commission v. State of Arunachal Pradesh 7
that it is the duty of the State to protect every human being from inequality but in the present
case, the State of Gulmohar is itself negating the right to equality among the citizens.
8. Referring to renowned jurist Dr. H.M Seervai through his book Constitutional Law of India
(Volume 1) in which, he clearly mentions that Article 14 would not be violated if there are two
important conditions fulfilled while differentiating or making the classification which are as
follows –
a) That, the classification is founded on an intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the group8, and
b) That, the differentia has a rational relation to the object sought to be achieved by the impugned
legislative or executive action.9
9. In the present case, none of the above mentioned conditions are being fulfilled. Firstly, the
classification is clearly not based on an intelligible differentia as still almost 65% of the
individuals were still speaking Gulmohari as per the census of 202110 which clearly shows that
the majority population or the maximum representative in the State of Gulmohar was of those
individuals who spoke Gulmohari so there was no need for giving special privilege to those
individuals.
10. Secondly, it is not clear as to what object the Government of Gulmohar wanted to achieve by the
present act as again the persons who were speaking Gulmohari had adequate representation in
the State as per the 2021 Census, although, the percentage of people speaking Gulmohari had
dropped from 95% in 1971, there was still more than half the population who were speaking

6
Para 8 of the Moot Proposititon.
7
AIR 1996 SC 1234.
8
1 H. M Seervai, Supra 3, at 436.
9
Id.
10
Supra 6.
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PETITIONERS T 33

Gulmohari.11
11. And it was rightly laid down that if the classification is not reasonable and does not satisfy the
two conditions referred above, the impugned legislative or executive action would plainly be
arbitrary and the guarantee of equality under Article 14 would be breached. 12 It was also
contemplated that differentia which is the basis of classification must be sound and must have
reasonable relation to the object of the legislation. If the object of classification itself is
discriminatory, then an explanation that the classification is reasonable having a rational relation
to the object sought to be achieved is immaterial.13
12. It has been rightly observed by the SC in the case of K. Thimmappa v. Chairman, Central Board
of Directors14 that when a law is challenged to be discriminatory essentially on the ground that
it denies equal treatment or protection, the question for determination by the Court is not
whether it has resulted in inequality but whether there is some difference which bears a just and
reasonable relation to the object of legislation. Mere differentiation does not per se amount to
discrimination within the inhibition of the equal protection clause. To attract the operation of
the clause it is necessary to show that the selection or differentiation is unreasonable or
arbitrary, that it does not rest on any rational basis having regard to the object which the
legislature has in view.
13. As in the present case, the selection or the differentiation, by the Gulmohar (Promotion and
Protection of Gulmohari) Act, 2021, as stated above, is unreasonable and arbitrary and it does
not rest on any rational basis having regard to the object which the legislature sought to achieve.
It provides privilege to that class of the society which is adequately represented.
14. In the case of Secretary, HSEB v. Suresh15, it was stated by the SC that the equality does not
speak of formal equality before the law, but embodies the concept of real and substantive
equality which strikes at the inequalities arising on account of vast social and economic
differentiation. And, in the present instance, the Government of Gulmohar had clearly created an
inequality through the Gulmohar (Promotion and Protection of Gulmohari) Act, 2021.
15. Apart from this, in the case of Raghunath Rao, Ganapath Rao v. Union of India 16, it was laid
down by the SC that Parliament and State Legislature cannot transgress the principle of equality
enshrined in Articles 14 and 16 (1) of the Constitution which is the basic feature of the
Constitution. But as previously mentioned, the present act by the Gulmohar Government negates

11
Supra 6.
12
Sirajuddin v. State, (1967) 3 Mad. 659.
13
Subramanian Swamy v. CBI, (2014) 8 SCC 682 : (2014) 4 MLJ 603.
14
AIR 2001 SC 467: (2001) 2 SCC 259.
15
AIR 1999 SC 1160.
16
AIR 1993 SC 1267.
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equality and creates a pressure on private enterprises to appoint the mainly native Gulmohars as
employees.

[1.1.2] Arbitrary Action of the State

16. As mentioned above, denial of equality before the law without any reasonable classification
based on intelligible differentia is clearly an arbitrary action of the state. The new dimension of
Article 14 transcends the classificatory principles and is no longer to be equated with the
principle of classification and also is primarily guarantee against arbitrariness in state action and
the doctrine of classification had only been evolved only a subsidiary rule for testing whether a
particular state action is arbitrary or not.17
17. Article 14 is also applicable when the state grants largess or benefits to the individuals, and
while doing so, the state cannot simply act in an arbitrary or discriminatory manner. The
Government is not free as a private person to pick and choose. A democratic government cannot
exercise its power arbitrarily or discriminately because Article 14 is always there to regulate its
discretion in all spheres.18
18. In the case of Ramana Dayaram Shetty v. International Airport Authority of India 19, J. P.N
Bhagwati rightly observed that When the Government is dealing with the public, whether by
giving of jobs or entering into contracts or issuing quotas or licenses or granting other forms of
largess, the government cannot act arbitrarily at its sweet will and, like a private individual,
deal with any person it pleases, but its action must be in conformity with standard or norm
which is not arbitrary, irrational or irrelevant.20
19. In the present case, the Section 46 of the Gulmohar (Promotion and Protection of Gulmohari)
Act, 2021, clearly states that If any industry, office, business or shop required to submit a
declaration under Section 45 fails to do so within the stipulated time, such industry, office,
business or shop shall be liable to a fine amounting to Rupees One Lakh for everyday beyond
the due date and the persons in a decision making capacity in such industry, office, business or
shop shall be liable to imprisonment for a period not less than one year and up to three years.21
20. The aforementioned section is clearly an arbitrary action of the Government of Gulmohar as
neither there is any rationality behind it and there is no reasonable basis. The Gulmohari

17
M.P Jain, Supra 2, at 941.
18
Id. at 961.
19
AIR 1979 SC 1628: (1979) 3 SCC 489.
20
Id.
21
Annexure B, Moot Proposition.
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PETITIONERS T 33

language is adequately represented in the State of Gulmohar, 65% as per the census of 2011 22,
and the Government of Gulmohar provides privilege to already privileged class of the society.
By the present section, the population of non – native Gulmoharis will sharply decrease as they
cannot have adequate representation either in the Government sector enterprises or private sector
enterprises.
21. Although, the present act i.e. Gulmohar (Promotion and Protection of Gulmohari) Act, 2021 was
enacted by the Govt. of Gulmohar after there was largest demonstration ever by the civil society
organizations in the history of the state23, it has been rightly observed by J. Mukherjea that If it
is established that the person complaining has been discriminated against as a result of
legislation and denied equal privileges with others occupying the same position, I do not think
that it is incumbent upon him to assert and to prove that in making the law, the legislature was
actuated by a hostile or inimical intention against a particular person or class.24 Thus, in the
present case the State cannot take the excuse that it was because of the demonstration that such
an act was enacted. The following act is prima facie arbitrary and is not based on any rational or
reasonable basis.
22. Also, in the case of Punjab v. Daulat Singh25, it was observed that the effect of the impugned act
on the personal right conferred by Article 14 must be ascertained, and if the act involved an
infringement of such right, the object of the act, however laudable, would not obviate the
prohibition under Article 14.
23. In another landmark judgment, State of Madras v. Champakam Dorairajan 26, again it was
observed that Article 14 confers a personal right by enacting a prohibition; and the only
question which has to be determined when a law is said to violate the right is to inquire whether
the prohibition is violated.27 If the prohibition has been violated, the law will be void, however
laudable the motives of its makers; and if the prohibition has not been violated, the utmost
malignity on the part of the law – makers will not make it void.
24. To conclude, the SC has underlined this principle that Article 14 of the Constitution ensures
equality among equals: its aim is to protect persons similarly placed against discriminatory
treatment but in the present case the Government of Gulmohar clearly discriminated between the
native Gulmoharis and non – native Gulmoharis and provided unreasonable benefits to native

22
Para 8, Moot Proposition.
23
Para 10, Moot Propostition.
24
1 H. M Seervai, Constitutional Law of India 447 (Law and Justice).
25
(1946) 73 I.A 59, (1946) A.PC. 66 (In connection with section 298 Government of India Act, 1935 which prohibited
discrimination on the ground of religion, race etc.)
26
(1951) S.C.R 525, 530.
27
This is subject to the qualification laid down by the Supreme Court in Syed Quasim Razvi v. Hyderabad (1953) S.C.R
589. It has been said that the words „equality before the law‟ have been taken from English Law, and the words „equal
protection of the laws‟ have been taken from the equality clauses of the U.S Constitution.
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PETITIONERS T 33

Gulmoharis.

Thus, The Gulmohar (Promotion and Protection of Gulmohari) Act, 2021 is

violative of Article 14 of the Constitution of Sapota as it is based on unreasonable
classification and denies equality before the law which is arbitrary action of the
State.

[1.2] VIOLATES RIGHT TO FREEDOM GUARANTEED UNDER ARTICLE 19

OF CONSTITUTION OF SAPOTA

[1.2.1]Violates Right to Freedom of Speech and Expression u/a 19 (1) (a)

25. The Article 19 (1) (a) of the Constitution of Sapota guarantees the right to freedom of speech
and expression to its citizens.
26. In the present case, referring to Section 2 (g) of the Gulmohar (Promotion and Protection of
Gulmohari) Act, 2021, it states that “native Gulmohari” shall mean any person who meets
anyone of the following criteria:
a) Has completed at least 10 years of education in an institution where the medium of instruction
is the Gulmohari language,
b) One of whose parents was born in the state; or
c) Both of whom parent have completed at least 10 years of education each in an institution where
the medium of instruction is in the Gulmohari language.28
27. The state of Gulmohar is a vibrant and one of the richest states in Sapota and enjoys both a high
ranking in Human Development Index and a high per capita GDP. 29 Due to this, there are many
individuals in the State who had migrated for better job opportunities and education from other
states to Gulmohar. The individuals belonging to the different states might be speaking different
language but the present act creates a pressure on almost all the individuals to learn Gulmohari.
28. It is the sole right to freedom of speech and expression of the individuals to learn or speak any
language they want. But due to the present act, it is mandatory for them to learn Gulmohari as

28
Annexure A, Moot Propostition.
29
Para 6, Moot Proposition.
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PETITIONERS T 33

a/c to section 47 of the act which expresses that 65% of the employees in any industry, office,
business or shop have to be native Gulmoharis. And as per section 2 (g) of the act, a native
Gulmohari is one who has either completed 10 years of education in an institution with the
medium of instruction as Gulmohari or one whose parents had born in the state or where both of
the parents had completed 10 years of education in an institution with medium of instruction in
Gulmohari.
29. And this certainly gives rise to feeling of regionalism rather than nationalism whereas the
various freedoms u/a 19 are necessary not only to promote certain basic rights of the citizens but
also certain democratic values in and the oneness and unity of, the country. 30 It was also
observed by the SC that it is possible that a right does not find express mention in any clause
under Article 19 (1) and yet it may be covered by some clause therein.31
30. Also, the right to freedom of speech under Article 19 (1) (a) includes the freedom of
communication and the right to propagate or publish opinion.32
31. Thus, the present act; pressurizes the non – Gulmoharis to learn Gulmohari so that they can be
accepted as an employee under private or public sector enterprises. It also creates pressure on
the individuals to admit their children into institutions with Gulmohari as the medium of
instruction, as 65% of the seats in private and public sector enterprises will be booked for native
Gulmoharis (as per the act).
32. Although, the subject matter of the present act is different, it restricts the right to freedom of
speech and expression of the individual to learn and practise any language which he or she
wants. A legislative or government action may have a direct effect on a fundamental right
although its subject matter may be different.33 The object of the law or executive action is
irrelevant when it infringes a fundamental right although it subject matter may be different. 34

Thus, The present act is violative of Article 19 (1) (a) of the Constitution of Sapota.

30
M.P Jain, Indian Constitutional Law 1051 (Lexis Nexis 2018).
31
Maneka Gandhi v. Union of India AIR 1978 SC 597 : (1978) 1 SCC 248; Kharak Singh v. State of Uttar Pradesh AIR
1963 SC 1295: (1964) 1 SCR 332; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamal (2005) 8 SCC 534: AIR 2006
SC 212.
32
M.P Jain, Indian Constitutional Law 1059 (Lexis Nexis 2018).
33
Id. at 1058.
34
Id.
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PETITIONERS T 33

[1.2.2] Violates Right to Freedom u/a 19 (1) (g) of the Constitution of Sapota
33. Article 19 (1) (g) of the Constitution of Sapota clearly states that all citizens shall have the right
to freedom to practise any profession, or to carry on any occupation, trade or business.
34. The word „any‟ read with „freedom‟ in title Article 19 implies an element of choice, thus,
freedom to choose is available in all rights implicit in the right to practise any profession, or to
carry on any occupation, trade or business.35
35. In the present case, the Section 47 of the Gulmohar (Protection and Promotion of Gulmohari)
Act, 2021 makes it mandatory for the private enterprises such as industry, office, business or
shops to employee 65% of native Gulmoharis as their employees and failure to do so would fine
one per cent of its turnover for every one per cent less than the required sixty – five per cent.
36. Due to the present section, it creates pressure on the individuals or private enterprises to
employee native Gulmoharis in their enterprises. They do not have the freedom to choose the
individuals as they want, on the contrary, they are bound to admit native Gulmoharis which is a
clear violation of their fundamental right u/a 19 (1) (g). If an individual is not allowed to freely
admit employees in his or her enterprise, it becomes an unreasonable restriction on his right to
freedom to practise any profession, or to carry on any occupation, trade or business.
37. The Supreme Court had observed that an impugned law will only be considered as a reasonable
restriction u/a 19 (6) if it satisfies two tests which are as follows –
a) Being in interest of the general public, and
b) It must pass the test of „manifest arbitrariness‟ and shall be a result of intelligent care and
deliberation.36
38. It was rightly observed by the SC in the case of Chintaman Rao v. State of Madhya Pradesh 37
that the phrase reasonable restriction connotes that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required
in the interest of the public. The word reasonable implies intelligent care and deliberation, that
is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively
invades the right cannot be said to contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed in Article 19 (1) (g) and the social control
permitted by the clause (6) of Article 19, it must be held to be wanting in that quality.
39. In the present case, the law does not pass both the tests. Firstly, the law is favoring only a
particular class of the society i.e. the native Gulmohars and secondly, it is not based on

35
State of Karnataka v. Associated Management of English Medium Primary and Secondary Schools, AIR 2014 SC 2094 :
2014 (9) SCC 485.
36
Cellular Operators Association of India v. TRAI, (2016) 7 SCC 703 : AIR 2016 SC 2336.
37
AIR 1951 SC 118 : 1950 SCR 759.
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PETITIONERS T 33

intelligent care and deliberation as it is providing privilege to already privileged class i.e.
providing reservation to adequately represented class of the society.

Thus, the present act is violative of Article 19 (1) (g) of the Constitution of Sapota.

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PETITIONERS T 33

2. Whether the 2020 amendment to the Constitution violates the basic

structure of the Sapota Constitution?`

40. It is humbly submitted before this honorable court that, the Constitution (Thirty – Sixth)
Amendment Act, 2020, which amended the Schedule 10 of the Sapotian Constitution,
violates the basic structure of the Constitution of Sapota and thus, is constitutionally
invalid. Primarily, Article 14 is violated as too much discretionary power is provided to the
Chairman or Speaker of the House [2.1]. Secondly, Article 21 is violated as Right to Fair
Hearing is not given to the disqualified member [2.2]. Thirdly, Article 19 (1) (a) is violated
as Right to think freely is not given to Parliamentarians or other State Legislative Members
[2.3].

41. Referring to Section 2 of the present amendment which states that In the Tenth schedule of the
Constitution, paragraphs 2, 3, 4, 5, 6, 7 and 8 shall stand deleted and replaced with the
following provisions. In the case of Kihoto Hollohan v. Zachillhu38, the Constitutional validity
of Schedule 10 was upheld, although the present amendment tends to violate the basic structure
of the Constitution.

[2.1] ARTICLE 14 IS VIOLATED AS TOO MUCH DISCRETIONARY POWER

IS PROVIDED TO THE CHAIRMAN OR SPEAKER OF THE HOUSE
42. As discussed earlier, Dr. H.M Seervai in his book Constitutional Law of India rightly observed
that Article 14 is a founding faith of the Constitution and is indeed the pillar on which resets
securely the foundation of our Democratic Republic, therefore, it must not be subjected to a
narrow, pedantic or lexicographic approach.39
43. Thus, the courts, in course of time, have evolved Article 14 into a very meaningful guarantee
against any action of the Administration which may be arbitrary, discriminatory or unequal. 40
This principle manifests itself in the form of the following propositions –
a) A law conferring unguided and unrestricted power on an authority is bad for arbitrary power is
discriminatory.
b) Article 14 illegalizes discrimination in the actual exercise of any discretionary power.

38
AIR 1993 SC 412 : 1922 Supp (2) SCC 651.
39
1 H. M Seervai, Constitutional Law of India 437 (Law and Justice 2015).
40
Shrinivasa Rao v. J Veeraiah, AIR 1993 SC 929; RL Bansal v. Union of India, AIR 1993 SC 978 : 1992 Supp (2) SCC
318.
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PETITIONERS T 33

c) Article 14 strikes at the arbitrariness in the administrative action and ensures fairness and
equality of treatment.
44. Thus, it was rightly observed by the SC in the case of Naraindas v. State of Madhya Pradesh 41
that if power conferred by statute on any authority of the State is vagrant and unconfined and no
standards or principles are laid down by the statute to guide and control the exercise of such
power, the statute would be violative of the equality clause because it would permit arbitrary
and capricious exercise of power, which is antithesis of equality before law.
45. Referring to Section 4 of the amendment which states that a member of a House shall be deemed
to be disqualified the moment the Chairman or the Speaker of the House certifies the results of
the vote, where such member has voted in a manner so as to attract disqualification under
Paragraph 2.42
46. By the interpretation of this particular section, it is clearly made out that if any member of a
House has voted so as to attract to disqualification u/s 2 of the amendment, he would be
disqualified the moment the Chairman or the Speaker of the House certifies the result of the
vote. This section grants too much discretionary power in the hands of the Speaker of the House
or the Chairman and referring to the Naraindas43 case as stated above, this discretionary power is
antithesis to equality before law as it is not controlled by any legislation.
47. Before the present amendment, under paragraph 2 (1) (a), it was held by the Court that there
should be proper pleading and proof for disqualification on the ground of defection. 44 It has
been referred by Dr. Durga Das Basu, in his book „Commentary on the Constitution of India‟
(Volume X) that the nature and degree of inquiry to be conducted for various categories
contemplated by para 2 of Schedule X may be different. Under para 2 (1) (a), the enquiry would
be a limited one. Where the relevant rules provide that seven days should be given before any
decision be taken, and the notice should be supported by copies of complaints and annexures,
the Rule has to be complied with.
48. But the present amendment does not talk about any such enquiry that has to be conducted. It
grants too much discretionary power in the Chairman or the Speaker of the House, that no
enquiry has to be conducted in order to disqualify the member as the member of the House.
49. Referring to the book Indian Constitutional Law, authored by Dr. M.P Jain, it is mentioned that
the jurisdiction of the courts is barred in matters connected with the disqualification of members.
Thus, giving too much discretionary powers in the hand of the Chairman or the Speaker of the
House, in the absence of Judicial Review, without proper enquiry and only on the basis of vote
41
AIR 1974 SC 1232.
42
Annexure A, Moot Proposition
43
Supra 41.
44
10 Durga Das Basu, Commentary on the Constitution of India 12245 (Lexis Nexis 2011).
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PETITIONERS T 33

casted, is a clear violation of Article 14 of the Constitution of Sapota.

50. To conclude, it has been rightly observed by the SC in the case of Sudhir Chandra 45 that Our
Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by
guidelines which may permit denial of equality before law is the antithesis of rule of law.
Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and
is therefore violative of Article 14. Equality before law and absolute discretion to grant or deny
benefit of the law are diametrically opposed to each other and cannot co – exist.
51. And also in the case of Maneka Gandhi46, J. P.N. Bhagwati opined that when a statute vests
unguided and unrestricted power in an authority to affect the rights of a person without laying
down any policy or principle which is to guide the authority in exercise of this power, it would
be affected by the vice of discrimination since it would leave it open to the authority to
discriminate between persons and things similarly situated.

Thus, the present amendment is violative of Article 14 of the Constitution of Sapota.

[2.2] ARTICLE 21 IS VIOLATED AS RIGHT TO FAIR HEARING IS NOT

GIVEN TO THE DISQUALIFIED MEMBER.
52. The Article 21 of the Constitution of Sapota states that No person shall be deprived of his life
and personal liberty, except according to procedure established by law.
53. As observed by J. P.N Bhagwati in the case of Maneka Gandhi v. Union of India 47 that the
Constitution shall be interpreted in the widest possible manner, the SC has adopted a very
liberal tendency in order to interpret the fundamental rights guaranteed by the Sapotian
Constitution.
54. Thus, Article 21 would no longer mean that law could prescribe some semblance of procedure,
however arbitrary or fanciful, to deprive a person of his personal liberty, it now means that the
procedure must satisfy certain requisites in the sense of being fair and reasonable; The procedure

45
Sudhir Chandra v. Tata Iron & Steel Corporation Limited, AIR 1984 SC 1064, 1071 : (1984) 3 SCC 369.
46
Maneka Gandhi v. Union of India, (1978) 2 SCJ at 350.
47
Id.
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PETITIONERS T 33

cannot be arbitrary, unfair or unreasonable.48

55. Apart from this, in the Maneka Gandhi case, J. P.N Bhagwati also observed that the principle of
reasonableness which legally as well as philosophically is an essential element of equality or
non – arbitrariness pervades Article 14 brooding omnipresence. Thus, the procedure u/a 21
must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise, it would be
no procedure at all and the requirement of Article 21 would not be satisfied.
56. Thus, it can be concluded from the above points that the Sapotian Courts have adopted an
implicit approach to the Due Process of Law in the Sapotian Constitution and again the SC had
described the metamorphosis of Article 21 as Once Gopalan was over ruled in RC Cooper, and
its principle extended to Article 21 in Maneka Gandhi, Article 21 got unshackled from the
restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto
unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Gandhi gave
a new meaning to the Article and expanded its content and connotation.
57. The term „personal liberty‟ has again been interpreted in a wider manner and it was observed by
J. P.N Bhagwati that the expression „personal liberty‟ in Article 21 is of the widest amplitude
and it covers a variety of rights which go to constitute the personal liberty of man and some of
them have been raised to the status of distinct Fundamental Rights and given additional
protection under Article 19.49
58. Thus, any law interfering with personal liberty of a person must satisfy a triple test: (i) it must
prescribe a procedure (ii) the procedure must withstand the test of one or more the Fundamental
Rights conferred under Article 19 which may be applicable in a given situation, and (iii) it must
also be liable to be tested with reference to Article 14.50
59. Since, the word under Article 21 used is „person‟, this particular right is also available to the
Parliamentarians or State Legislative Members also. Now, again referring to Section 4 of the
present amendment, it states that as soon as a member has casted a vote to attract defection
under paragraph 2, he or she shall be deemed to be disqualified the moment the Chairman or the
Speaker of the House certifies the vote.
60. This particular section does not give right to fair hearing which is also a principle of natural
justice, to the disqualified member. Without hearing his or her plea, she is straight forward
dismissed to be a member of the House.
61. As stated above, a law in order to interfere with personal liberty also has to be tested with
reference to Article 14. Thus, quoting an observation of the SC which states that the audi

48
M.P Jain, Indian Constitutional Law 1167 (Lexis Nexis 2018).
49
Supra 46.
50
District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 : AIR 2005 SC 186.
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PETITIONERS T 33

alteram partem rule, in essence, enforces the equality clause in Article 14 and it is applicable
not only to quasi – judicial bodies but also to administrative orders adversely affecting the party
in question.51 Maneka Gandhi is an authority fire the proposition that the principles of natural
justice are an integral part of the guarantee of equality assured by Article 14. An order
depriving a person of his civil right passed without affording him an opportunity of being heard
suffers from the vice of violation of natural justice and is thus, an arbitrary order.52
62. Referring to, Commentary on the Constitution of India, by Dr. Durga Das Basu, where he states
that (in regards with the previous anti – defection law) since the speaker is involved in an
adjudicating process, fairness demands that generally the member in fault should be given some
opportunity to explain his position.53
63. Thus, to conclude, it can be conferred that since the present amendment violates the principles
of natural justice as not providing right to fair hearing, even before the House or the Speaker or
the Chairman, the present amendment is violative of Article 21 of the Constitution of Sapota.

Thus, the present amendment is violative of Article 21 of the Constitution of Sapota.

[2.3] ARTICLE 19 (1) (A ) IS VIOLATED AS RIGHT TO THINK FREELY

IS NOT GIVEN TO PARLIAMENTARIANS OR OTHER STATE
LEGISLATIVE MEMBERS.
64. Article 19 (1) (a) of the Constitution of Sapota guarantees the right to freedom of speech and
expression. This right is one of the most interpreted Fundamental Rights of the Sapotian
Constitution and has been given different dimensions to include different rights.
65. In 1927, in Whitney v. California54, J. Louis Brandeis, made a classic statement on the freedom
of speech in the context of US Constitution that those who won our independence believed that
the final end of the state was to make men free to develop their faculties…. They believed liberty
to be the secret of happiness and courage to be the secret of liberty…. They believed that the
freedom to think as you will and to speak as you think are means indispensable to the discovery

51
Union of India v. Amrik Singh, AIR 1991 SC 564 : (1991) 1 SCC 654; DK Yadav v. JMA Industries, (1993) 3 SCC 259.
52
Haji Abdool Shakoor & Corporation v. Union of India, JT 2001 (10) SC 438. See also Sahara India Real Estate
Corporation limited v. SEBI, (2013) 1 SCC 1 (137) (The rules of natural justice being founded on the principles of fairness
can be available only to a party which has itself been fair and therefore, deserves to be treated fairly.)
53
10 Durga Das Basu, Commentary of Constitution of India 12247 (Lexis Nexis 2011).
54
247 US 214.
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PETITIONERS T 33

and spread of political truth; that without free speech and assembly discussion would be
futile…… that public discussion is a political duty; and that this should be fundamental
principle of the American Government.
66. In India, in Maneka Gandhi case, J. Bhagwati, emphasized on the significance of the freedom of
speech and expression as Democracy is based essentially on free debate and open discussion,
for that is the only corrective of Government action in a democratic set up. The right to freedom
of speech and expression has also been variously described as a basic human right, a natural
right and the like.55
67. Referring to Article 19 of the Universal Declaration of Human Rights, it states that everyone has
the right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any media
and regardless of frontiers.56 Apart from this, Article 19 of the International Covenant on Civil
and Political Rights has 3 clauses which states as follows –
1. Everyone shall have the right to hold opinions without interference. 57
2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.58
3. The exercise of the rights provided for paragraph 3 of this article carries with it special duties
and responsibilities. It may therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary: (a) For respect of the right or reputations of
others; (b) For the protection of national security or of public order, or of public health or
morals.59
68. By the above statutes, cases and opinion of the judges, it has become quite clear that right to
freedom of speech and expression is a very important right in a Democratic nation and it also
grants the freedom to think freely. This can also be made out by referring to the Preamble of the
Indian Constitution which guarantees the Liberty of thought and expression60.
69. Now, referring to Section 2 (1) of the present amendment which states that a member of a House
belonging to any political party shall be disqualified for being a member of the House if they
vote or abstain to vote from voting in such House contrary to any directions issued by the
political party to which they belong or by any person or authority or authorized by it in his
behalf, without obtaining, in either case, the prior written permission of such political party,
55
M.P Jain, Indian Constitutional Law 1059 (Lexis Nexis 2018).
56
Universal Declaration of Human Rights, art. 19.
57
International Covenant on Civil and Political Rights, art. 19.
58
Id.
59
Id.
60
Preamble of India.
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PETITIONERS T 33

person or authority and such voting or abstention has not been condoned by such political
party, person or authority and such voting or abstention has not been condoned by such
political party, person or authority within fifteen days from the date of such voting or
abstention.
70. And referring to Section 2 (2) of the present amendment which states that the provisions of sub
– paragraph (1) shall apply only when the vote taking place in the House elates to a money bill
or a vote on a motion expressing want of confidence in the Council of Ministers.
71. As per the Sapotian Constitution, the people of Sapota directly elect their representatives and
among their elected representatives, the President of Sapota as per Article 75 (1) of the
Constitution of Sapota, elect the Prime Minister and on his advise, the other Council of
Ministers are elected by the President. The people of Sapota elect their representatives so that
they can be represented by him or her and their grievances or problems can be kept in front of
the Government during the sessions of the Parliament.
72. Keeping the interest of the people in mind, the representatives cast their vote either in favor of
any proposed bill or either against it. But due to the present amendment, they are bound to vote
only as per the instructions of the political party in which they are in or on the instructions of
any such authority. They are not allowed to think freely and are simply guided by the majority
view of the political party or the instructions given by the authority.
73. As said by the Supreme Court in the case of Life India Corporation Limited v. Manu Bhai D
Shah61 that right to freedom of speech and expression u/a 19 (1) (a) is a basic human right and
can only be curtailed under reasonable restrictions u/a 19 (2). Thus, the representatives of the
people of Sapota are being curtailed of this basic human right.
74. Keeping in mind, „the fundamental axiom‟ of Bentham‟s Philosophy which states that it is the
greatest happiness of the greatest number that is the measure of right or wrong. But this was
highly criticized as this completely ignores the minority and their wish. Majority is always right
may not be the situation, at many a times, the minority may also be right.
75. In the present amendment also, the same situation is prevailing. The views of the minority are
not at all taken or considered, as in the present case, when the Gulmohar (Promotion and
Protection of Gulmohari) Act, 2021 was passed, it was highly criticized by Mr. Giduga as it
completely neglected the minority opinion. He along with other ministers was also defected on
the ground as they prevented the enactment of such arbitrary law.

61
AIR 1993 SC 171 : (1992) 3 SCC 637.
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Thus, the present amendment violates Article 19 (1) (a) of the Constitution of Sapota.

3. WHETHER THE HIGH COURT CAN LEGALLY DIRECT THE GOVERNOR

OF GULMOHAR TO INVITE A POST-POLL ALLIANCE TO FORM THE
GOVERNMENT?

76. It is humbly submitted before this Honorable Court that the Governor can legally direct the
Governor of Gulmohar to invite a post – poll alliance to form the Government because it does
not violate the Democratic Features of the Nation and is a freedom u/a 19 (1) (c) of the
Constitution of Sapota.

[3.1] IT DOES NOT VIOLATE THE DEMOCRATIC FEATURES OF THE

NATION AND IS A FREEDOM U/A 19 (1) (C) OF THE CONSTITUTION
OF SAPOTA.
77. Sapota is a Social Democratic Republic where people directly elect their representative in the
Lower House (House of the People). In order to form the government, different individuals
having same opinion tend to form political parties. These political parties have a common goal
and tend to work for the welfare of the public as well as the state.
78. Sometimes, these political parties tend to form alliances with other political parties in order to
win the election. People, who vote, are generally, aware about such alliances and vote keeping
in mind whether they want the particular alliance to form the government or not. But sometimes,
the parties do not form alliances before the election and the result of the election is such that
none of the political parties in the State attain majority number of seats. In such situations, the
political parties tend to form what is known as post poll alliances.
79. Referring to Article 19 (1) (c) of the Constitution of Sapota, which guarantees to the citizens of
Sapota the right to form associations or unions or cooperative societies. In the words of Dr. M.P
Jain, through his book, Indian Constitutional Law, the right to form associations is the very
lifeblood of Democracy. Without such a right, political parties cannot be formed, and without
such parties a Democratic Form, especially that of the Parliamentary type, cannot be run
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PETITIONERS T 33

properly.62
80. Thus, the right to form association or union shall not be limited for the political parties only
before the election but they should be allowed to form the association or union even after the
election.
81. The main focus in a Democratic country should be on the stability of the Government because
conducting frequent elections and a situation of hung assembly would not only be monetary
unfeasible but will also be against the Democratic principles. Thus, if it is such that a pre poll
alliance couldn‟t form a stable government as in the present case, there was resentment between
Ms. Azhilu and Mr. Ka‟age, the post poll alliance should be considered as a better option.
82. Although, Article 162A states only about pre poll alliance, post poll alliance has not been
explicitly excluded by the following article. After Maharashtra State Legislative Assembly
elections, the All India Hindu Mahasabha approached the honorable Supreme Court to declare
the post poll alliance formed between Shiv Sena, the Congress and Nationalist Congress Party
(NCP) as unconstitutional. The SC bench dismissed the petition stating that it was outside the
jurisdiction of the court and also held post poll alliance as constitutionally valid.
83. Apart from this, one of the basic principles of Democracy is that the rule is of the majority. In
the present case, since, there has been resentment between Ms. Azhilu and Mr. Ka‟age, the only
way to form a majority govt. is by accepting the post poll alliance between Mr. Ka‟age and Mr.
Giduga. A political party has to cross the majority in order to form the Government. Thus, the
High Court should legally direct the Governor to invite a post poll alliance to form the
Government.

Thus, the High Court can legally direct the Governor of Gulmohar to invite a post poll
alliance to form the Government.

62
M.P Jain, Indian Constitutional Law 1096 (Lexis Nexis 2018).
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PETITIONERS T 33

PRAYER

Wherefore in the light of the issue raised, arguments advanced and authorities cited
may this Hon’ble Court be pleased to:

1. The Gulmohar (Promotion and Protection of Gulmohari) Act, 2021 is constitutionally

valid.

2. The 2020 Amendment to the constitution violates The Basic Structure of The Sapota
Constitution.

3. The High Court Can Legally Direct the Governor of Gulmohar to Invite A Post-Poll
Alliance To Form The Government.

And / Or

Pass any other order, writ or direction which it deems fit in the interest of justice, equity
and good conscience.

The counsel humbly bound ever pray.

All of which is humbly submitted

S/d-

PLACE: GULMOHAR

DATE: Counsel for the Petitioner

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