[63A]

IN THE HON’BLE SUPREME COURT OF DAYABAD

AT

NISCHINTIPUR

IN THE MATTERS OF

TRANSFER PETITION NO. 123/2017

(Under Article 139A(1) of the Constitution of Dayabad, 1950 read with Order XL, Rule 8, of the

Supreme Court Rules, 2013)

Ms. Lestranger & Ors…………………………PETITIONERS

Vs.

Mr. Hari Puttar & Ors…………………………RESPONDENT

AND

TRANSFER PETITION NO. 124/2017

(Under Article 139A(1) of the Constitution of Dayabad, 1950 read with Order XL, Rule 5 & 8, of the

Supreme Court Rules, 2013)

The Hon’ble Speaker, Xuhar Assembly…………….……………PETITIONER

Vs.

The Registrar-General, High Court of Xuhar & Ors………RESPONDENTS

-MEMORIAL ON BEHALF OF JANTA GANTANTRIKMANCH UNITED AND THE

HON’BLE SPEAKER, XUHAR ASSEMBLY –

JINDAL FALL INDUCTION MOOT COURT COMPETITION – 2017
 -MEMORIAL ON BEHALF OF JGU AND THE HON’BLE SPEAKER, XUHAR ASSEMBLY-

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................. ...iv

STATEMENT OF FACTS .......................................................................................................v

STATEMENT OF JURISDICTION ................................................................................... viii

ISSUES FOR CONSIDERATION ........................................................................................ ix

SUMMARY OF ARGUMENTS ..............................................................................................x

I. MR. HARI PUTTAR ALONG WITH ALL THE JGU MEMBERS OF THE XUHAR
ASSEMBLY ARE NOT LIABLE TO BE DISQUALIFIED UNDER THE TENTH SCHEDULE
OF THE CONSTITUTION .....................................................................................................1

A. The Constitution (One Hundred Second Amendment) Act, 2017 violates and alters

the Basic Structure of the Constitution ............................................................................................ 1

B. Notwithstanding the validity of the Amendment, it cannot be retrospectively applicable

to a pre-poll alliance of 2015 .............................................................................................................. 3

i. The Tenth schedule of the Constitution is ought to be construed as a “substantive” law .... 3
ii. The application of the well-established principles of interpretation leads to the conclusion
that the 102nd amendment is “prospective” in nature .................................................... 5

II. THE GOVERNOR’S INVITATION TO MR. HARI PUTTAR TO FORM THE XUHAR
GOVERNMENT, ON 3RD JUNE 2017, WAS IN ACCORDANCE TO THE LAW…………….6

A. The Governor had the discretion, under the Constitution, to appoint Mr. Puttar as the
Chief Minister of Xuhar ..................................................................................................................... 6

B. The Governor was duty bound, under the Constitution, to appoint Mr. Puttar as the

Chief Minister of Xuhar ..................................................................................................................... 7

C. Under the Constitution, “Floor test” is not a condition precedent to the appointment of

the Chief Minister ............................................................................................................................... 7

D. There is neither any established constitutional practice nor any provision in the
Constitution, under which the leader of the largest single party, not in majority, must be
invited to form the Government ........................................................................................................ 8

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III. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CHIEF JUSTICE OF
XUHAR HIGH COURT BREACHED THE PRIVILEGE AND COMMITTED CONTEMPT
OF THE XUHAR ASSEMBLY ...............................................................................................9

A. High Court breached the Privilege of the House as it did not have the authority to order the
Speaker to state reasons for dismissing the Petition for defection ................................................. 9

B. the Supreme Court is not bound by the decision of Keshav Singh or any of its own
precedents 10

PRAYER ..................................................................................................................................11

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LIST OF ABBREVIATIONS

& And

Art./Artt. Article/Articles

DJS Dayabadi Jana Sangha

DRP Dayabadi Rashtriya Party

JGU Janta Gantantrikmanch United

Congress Dayabad Congress

DD Dayabadi Dollars

Assembly Xuhar Assembly

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STATEMENT OF FACTS

The Republic of Dayabad is a large developing country in the southern hemisphere, which got its
independence in 1947. The constituent assembly of Dayabad chose a constitutionally democratic and
federal structure for the Nation.

LIST OF EVENTS
End of the 20th century: Regional parties started winning the elections in different States and in case
there was no clear majority, they started forming coalition governments.

1992 – 2006: Congress started losing its age-old control Dayabad national politics and was able to
form the national government only three out of seven times during this period.

2006: Dayabadi Jana Sangha [DJS] won the National Elections.

2011: DJS maintained its hold on the national politics and again emerged as the winner of the
National Elections.

2013: DJS, with the help of alliances, maintained its hold over the State governments as well.

2015 (pre Xuhar Assembly elections): For the purposes of the Xuhar Assembly elections, two
regional parties, the Dayabadi Rashtriya Party [DRP], led by Ms. Lestranger, and the Janta
Gantantrikmanch United [JGU], led by Mr. Hari Puttar, formed a pre-poll alliance with the Congress
to present a united opposition to the DJS. The alliance called itself the ‘Grand Gatbandhan’

2015 (post Xuhar Assembly elections): The alliance of “Great Gatbandhan” won the Xuhar elections
with almost a two-third majority. Out of 280 seats in the Xuhar Assembly, their alliance held 180
seats and the internal division was- DRP holding 80 seats; JGU holding 60 seats; and the Congress
holding 40 seats. Mr. Hari Puttar was nominated to act as Chief Minister of Xuhar and Ms. Geanie
Beesli, another JGU member, was nominated to act as Speaker for the Xuhar House.

January 2017: DJS started losing its influence and after a long time, Congress regained power at the
Centre with an absolute majority. Congress controlled more than 3/4th of the seats, along with its
allies, in the House of Representatives.
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2017: The Constitution (One Hundred Second Amendment) Act, 2017 was passed by the Dayabad
Parliament, which inserted a sub-clause (e) into paragraph 1 of the Tenth Schedule to the Constitution.
The newly added sub-clause expanded the definition of the term “political party”, for the purpose of
paragraph 2(1)(a) of the Schedule, to include even pre-poll alliances.

2nd-3rd April, 2017: A notification was issued by the Reserve Bank of Dayabad, following
consultations with the Ministry of Finance, which stated that the currency notes of 500 and 1000
Dayabadi Dollars (“DD”) would cease to be legal tender. This sudden change in the country’s
monetary policy had devastating effects on several sectors of the economy, particularly cash intensive
agricultural and medium-small enterprise sectors.

2nd June, 2017: JGU, which has its electoral support base in the agrarian communities and primarily
promoted their interests, vehemently opposed the “demonetisation” policy. In response and protest to
this uncalled measure by Congress, Mr. Puttar resigned as Chief Minister of the Xuhar government.

3rd June 2017: Mr. Puttar, showing support of all JGU members [60 seats], all DJS members [60
seats] and 34 independent members of the Xuhar assembly, applied to the governor to form the
government in Xuhar.

4th June, 2017: The governor invited Mr. Puttar to form government and he was sworn in as the
Chief Minister of Xuhar

Post 4th June, 2017: All the members of DRP and Congress filed a petition before the Speaker, Ms.
Beesli, to disqualify all JGU members on the ground of defection under the Tenth Schedule. A
hearing was granted was to both the parties by the Speaker, but ultimately the petition was dismissed.
Thereafter, the DRP and Congress members filed a petition before the High Court of Xuhar, seeking
disqualification of all JGU members from the Xuhar assembly and setting aside of the Governor
invitation to Mr. Puttar to form the government.

First date of hearing of Petition 101/2017: The High Court called upon the Speaker of the House,
Ms. Beesli, to be present in person before the Court on the next date of the hearing. Also, she was
asked to file a detailed affidavit explaining her reasons for dismissing the petition for defection.

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Post-First date of hearing of Petition 101/2017: The Speaker of the Xuhar Assembly, upon receipt
of the order issued by the High Court, sent an immediate notice to the Registrar General of the High
Court, calling upon the Chief Justice to present herself before the Xuhar Assembly and to explain why
proceedings for Breach of Privilege of the House should not be commenced against her. On receipt of
the notice, the Registrar General served the notice to the Chief Justice, who passed a quashing order of
the notice issued by the Speaker.

Hearing before the Supreme Court: Attorney General of Dayabad, on sensing a major
constitutional crisis in Xuhar, mentioned the matter before the Supreme Court of Dayabad. The
Supreme Court, being the highest Court of the land, exercised its powers under the Constitution, and
transferred all proceedings in relation to Petition 101/2017 and the question of breach of privilege to
itself.

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STATEMENT OF JURISDICTION

The Respondent in Transfer Petition No. 123/2017 [Mr. Hari Puttar and other JGU members]

submits to the jurisdiction of the Hon’ble Supreme Court of Dayabad under Article 139(A)(1) of the

Constitution of Dayabad.

The Petitioner in Transfer Petition No. 124/2017 [The Hon’ble Speaker, Xuhar Assembly] submits to

the jurisdiction of the Hon’ble Supreme Court of Dayabad under Article 139(A)(1) of the Constitution

of Dayabad.

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ISSUES FOR CONSIDERATION

I. Whether, on the facts and circumstances of the case, Mr. Hari Puttar along with all the JGU

members of the Xuhar assembly are liable to be disqualified under the Tenth Schedule?

II. Whether the Governor’s invitation to Mr. Hari Puttar to form the Xuhar government, on 3rd

June 2017, was in accordance to the law?

III. Whether, on the facts and circumstances of the case, the Chief Justice of Xuhar High Court,

breached the privilege and committed contempt of the Xuhar Assembly?

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 -MEMORIAL ON BEHALF OF JGU AND THE HON’BLE SPEAKER, XUHAR ASSEMBLY-

SUMMARY OF ARGUMENTS
I. MR. HARI PUTTAR ALONG WITH ALL THE JGU MEMBERS OF THE XUHAR
ASSEMBLY ARE NOT LIABLE TO BE DISQUALIFIED UNDER THE TENTH
SCHEDULE OF THE CONSTITUTION

The power of the Parliament to amend the Constitution under Article 368 of the Constitution is
limited and an Amendment cannot damage or alter the “Basic Structure” of the Constitution. It has
been judicially established that “Parliamentary and Representative Democracy” is an important
component of the Basic Structure of the Constitution. The most important facet of “Parliamentary and
Representative Democracy” is supreme power of the people and notions of debate, deliberation and
opposition. The Amendment is a flagrant violation of the basic structure of the Constitution, by
restricting a political party from fulfilling its superior and sacred duty towards its voters, as it takes
away the liberty to depart from the Alliance, which has become absolutely necessary due to the
surrounding circumstances. The adoption of such an Amendment by Republic of Dayabad shall lead
to the “beginning of much greater evils if the remedies, graver than the disease itself, are adopted.”
Moreover, notwithstanding the validity of the Amendment, it cannot be retrospectively applied. Tenth
Schedule of the Constitution, creating new rights and liabilities, is substantive in nature and by
applying well established principle of interpretation it can be fairly concluded that it does not have any
retrospective application.

II. THE GOVERNOR’S INVITATION TO MR. HARI PUTTAR TO FORM THE XUHAR
GOVERNMENT, ON 3RD JUNE 2017, WAS IN ACCORDANCE TO THE LAW

Thus, on the facts and circumstances of this case, the Governor had the discretion, under the Article
163(1) read with 163(2) read with 164(2) of the Constitution, to appoint Mr. Puttar as the Chief
Minister of Xuhar. Moreover, the Governor was duty bound, under the Constitution, to appoint Mr.
Puttar as the Chief Minister of Xuhar and a “Floor test” is not a condition precedent to the
appointment of the Chief Minister. Furthermore, there is neither any established constitutional practice
nor any provision in the Constitution, under which the leader of the largest single party, not in
majority, must be invited to form the Government.

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III. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CHIEF JUSTICE OF

XUHAR HIGH COURT BREACHED THE PRIVILEGE AND COMMITTED

CONTEMPT OF THE XUHAR ASSEMBLY

Any disqualification proceeding under the Tenth Schedule of the Constitution, is protected from
Judicial Review and scrutiny under Article 212 of the Constitution. The High Court breached the
Privilege of the House as it did not have the authority to inquire into proceedings that happened with
the four corners of the House and was constitutionally barred from ordering the Speaker to state
reasons for dismissing the Petition for defection. Moreover, the Supreme Court is not bound by the
decision of Keshav Singh decision or any of its own precedents, as an exception to the doctrine of
“stare decis”.

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ARGUMENTS ADVANCED

I. MR. HARI PUTTAR ALONG WITH ALL THE JGU MEMBERS OF THE XUHAR
ASSEMBLY ARE NOT LIABLE TO BE DISQUALIFIED UNDER THE TENTH
SCHEDULE OF THE CONSTITUTION
1. The Janta Gantantrikmanch United [hereinafter, “JGU”] commanded a considerable amount of
support and influence in the Xuhar Assembly. The primary electoral support base of JGU was in
the agrarian communities, who were extremely aggrieved at the sudden changes in the monetary
policy by Congress. Thus, to demonstrate its disapproval of the demonetization policy and fulfil
its sacred duty towards the voters, Mr. Puttar resigned from the post of Chief Minister of Xuhar
on 2nd June, 2017. However, the party of JGU held sixty seats in the Xuhar Assembly and by
forming a coalition with the Dayabadi Jana Sangha [hereinafter, “DJS”], who also held sixty
seats in the assembly, and thirty-four independent members, had the required numbers to form
the State Government on 3rd June, 2017.
2. The Petitioners had asked for disqualification of all JGU members of the Assembly on the
ground of defection. However, Mr. Hari Puttar, current Chief minister of Xuhar, along with all
the JGU members of the Xuhar assembly are not liable for defection under the Tenth Schedule
due to two reasons. First, the Constitution (One Hundred Second Amendment) Act, 2017
violates and alters the Basic Structure of the Constitution [A]. Second, notwithstanding the
validity of the Amendment, it cannot be retrospectively applicable to a pre-poll alliance of 2015
[B].

A. THE CONSTITUTION (ONE HUNDRED SECOND AMENDMENT) ACT, 2017 VIOLATES AND

ALTERS THE BASIC STRUCTURE OF THE CONSTITUTION

3. Article 368 of the Constitution of Dayabad lays down the constituent power of Parliament and
the procedure to amend any part of the Constitution. However, the Supreme Court in its
landmark decision of Kesavananda Bharati v. State of Kerala1 held that the “power to amend”
the Constitution does not “include the power to abrogate or change the identity of the
Constitution or its basic features”2. This was further recognized by subsequent decisions of the
Supreme Court3 and eventually led to an established constitutional principle of the “basic
structure doctrine”. Thus, in exercise of that constituent power, if the Parliament damages the
basic or essential features of the Constitution, the amendment shall stand annulled.

1
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
2
Ibid at 624.
3
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625;;
Waman Rao v. Union of India, AIR 1981 SC 271; S.P. Gupta v. Union of India, AIR 1982 SC 149 (1981); I.R. Coelho v.
State of Tamil Nadu, (2007) 2 SCC 1
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4. In the present scenario, the adoption of Constitution (One Hundred Second Amendment) Act,
2017 seriously comprises the structure and a notion of a “Parliamentary and Representative
Democracy” which is a recognized component of the “basic structure” of the Constitution.
5. The Supreme Court in Kihoto Hollohan v. Zachillhu4 and Kesavananda Bharati v. State of
Kerala5 held that Parliamentary Representative Democracy is a part of the basic structure of our
Constitution. While deliberating on the principles underlying the concept of Democracy,
Supreme Court in State of West Bengal v. Union of India6, held that the “legal sovereignty of the
Indian nation is vested in the people of India who as stated by the preamble have solemnly
resolved to constitute India into a Sovereign Democratic Republic for the objects specified
therein.”7
6. Further, the Supreme Court has held that principles of debate and discussion form the core of
parliamentary democracy8. It is significant to note the observations of the Constitutional Court of
South Africa in Executive Council of the Western Cape Legislature v. President of the Republic 9,
wherein it was held that there are certain fundamental features of Parliamentary democracy
which are not spelt out in the Constitution but which are inherent in its very nature, design and
purpose.
7. On the facts and circumstances of the current case, the impugned amendment creates an
unrestrained, unconstitutional, untrammelled and undemocratic regime of electoral politics,
which blatantly damages and undermines the core principles of “Parliamentary Democracy”. The
102nd Amendment completely disregards the fact that any “pre-poll” alliance is a mere
association of individual political parties who put forth a common campaign for a particular set
of elections, but does not let go of their own beliefs, ideas, policies and convictions. It is quite
common that two or more political parties who form an alliance have contradictory internal
policies, but only for the purpose of that specific electoral round they have come to a common
ground.
8. It was held in Kihoto Hollohan v. Zachillhu10, that any political party in a parliamentary
democracy operates on the strength and robustness of “shared beliefs”. On that note, any pre-poll
alliance for a state election, in a federal nation, is only a “temporary arrangement”, and the same
party can be a member of multiple pre-poll alliances for different State Assembly elections.
Thus, it can be easily established that, even though, political parties come together to form pre-

4
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651
5
AIR 1973 SC 1461.
6
West Bengal v. Union of India, A.I.R. 1963 S.C. 1241
7
Ibid at 27.
8
Ibid at 722; Union of India (UOI) vs. Association for Democratic Reforms and Anr., AIR 2002 SC 2112
9
1995 10 BCLR 1289 (CC) [Justice Sachs].
10
1992 Supp (2) SCC 651, at 19.
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poll alliances, they do not permanently subscribe to the policies of one particular Alliance. It
important to note that, if a democracy starts imbibing the ideas and notions of electoral politics
that the 102nd Amendment is trying to propagate, that democracy shall cease to be “parliamentary
and representative” form of democracy.
9. The underlying values and principles of democracy, is that the people’s will is supreme, and they
voice their opinion through the political party they vote for. Justice Holmes in Lochner v. New
York11, held that the the underlying theory of a parliamentary democracy is "the right of a
majority to embody their opinion in law subject to the limitations imposed by the Constitution".
10. In the current scenario, the amendment is restricting the political party of JGU to depart from
“Great Gatbandhan” and make a separate coalition to command majority in the Assembly and
subsequently form the Government of Xuhar. The communities who voted for JGU had faith in
them to truly represent their interests in the best manner possible, but if JGU is not allowed to
form a separate government and make policies which are favorable to the people of Xuhar, then
it’s a blatant violation of the principles of “parliamentary democracy”.
11. Therefore, it will be a flagrant violation of the basic structure of the Constitution, if a political
party is not allowed to fulfil its superior and sacred duty towards its voters, by taking away the
liberty to depart from the Alliance, which has become absolutely necessary due to the
surrounding circumstances. The adoption of such an Amendment by Republic of Dayabad shall
lead to the “beginning of much greater evils if the remedies, graver than the disease itself, are
adopted.”

B. NOTWITHSTANDING THE VALIDITY OF THE AMENDMENT, IT CANNOT BE RETROSPECTIVELY

APPLICABLE TO A PRE-POLL ALLIANCE OF 2015

12. Without prejudice and notwithstanding the first submission [Refer to Section I of the Memorial],
it is submitted that the 102nd Amendment to the Constitution, expanding the definition of a
“political party”, cannot be retrospectively applied to a pre-poll alliance created in 2015. This is
because the Tenth schedule of the Constitution is ought to be construed as a “substantive” law
[i], and the application of the well-established principles of interpretation leads to the conclusion
that the 102nd Amendment is “prospective” in nature [ii].
i. The Tenth schedule of the Constitution is ought to be construed as a “substantive” law
13. The terminologies “substantive” and “procedural”, though conceptually and legally have distinct
connotation, are often intricately interwoven12. Thus, to derive a functional distinction between
“substantive law” and “procedural law”, reliance must be placed on the international

11
Lochner v. New York 198 U.S. 45
12
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 559 (1949) (Rutledge, J., dissenting); Walter Wheeler Cook,
“Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 335-36 (1933)
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understanding of the two concepts. The first clue to draw out a legal distinction between the two
concepts can be found in the dissenting opinion of Justice Owen Roberts, of the US Supreme
Court, in Snyder v. Massachusetts13, where he relates the term “Procedural” to conceptual
notions such as “manner of the trial [and] … in the conduct of judicial inquiry certain
fundamental rules of fairness be observed.”14
14. Similarly, Professor Lawrence B. Solum carved out this classic distinction by stating “The
idealization of a pure rule of procedure assumes that procedural rules regulate the sphere of
adjudicative institutions. Similarly, the idealization of a pure rule of substance posits that the
function of the substantive law is to regulate primary conduct—the whole of human activity
outside adjudicative contexts.”15 The understanding that “substantive law” affects the rights and
liabilities of a person as against “procedural law” which provides a framework for enforcement
and adjudication of those rights, is well engrained in constitutional jurisprudence16.
15. While ascertaining the true nature of Tenth Schedule of the Constitution, the Court must consider
the “Statement of Objects and Reasons” of the Amendment Act, which shall assist in explaining
the object of the Parliament in enacting the Amendment17. The Supreme Court in in Bhaji v.
SDO Thandla & Ors18 observed that the reference to “Statement of Objects and Reasons” should
be made for understanding the background, the antecedent state affairs and the surrounding
circumstances of an Amendment or Statute.
16. Thus, from the “STATEMENT OF OBJECTS AND REASONS” of the Constitution (Fifty-
Second Amendment) Act, 1985, it can be ascertained that the Tenth Schedule of the Constitution
creates a new set of complimentary rights and liabilities i.e. right of a political party to command
loyalty from the members; and liability of individual members getting disqualified from the
House on defection.
17. Therefore, by relying on the above stated judicial precedents and the Delhi High Court’s decision
in Commissioner of Income Tax XIII vs. Naresh Kumar19, the Tenth Schedule of the Constitution
must be construed as “substantive” in nature.

13
291 U.S. 97, 137 (1934) (Roberts, J., dissenting)
14
Ibid at 137.
15
Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 215-16 (2004).
16
Sara Sun Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the
Authority of the Federal Courts, 84 COLUM. L. REV. 1433, 1474-75 (1984); Thomas W. Merrill, The Common Law
Powers of Federal Courts, 52 U. CHI. L. REV. 1, 46 n.200 (1985)
17
West Bengal v. Subodh Gopal, Brigade Commander, 1954 SCR 587; Meerut sub-area v. Ganga Prasad, AIR 1956 All.
207; Bisambar Singh v. State of Orissa, SCR (1954) 842;
18
Bhaji v. SDO Thandla & Ors, (2003) 1 SCC 692 at 700.
19
Commissioner of Income Tax XIII vs. Naresh Kumar, [2014] 362 ITR 256 (Del).
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i. The application of the well-established principles of interpretation leads to the conclusion

that the 102nd amendment is “prospective” in nature
18. There are two luminous principles of interpretation of the Constitution and construction of
Constitutional provisions20. First, by applying general rules of statutory interpretation on
Constitutional provisions21 and second, by recognizing and construing the Constitution as an
organic whole and interpreting a specific Constitutional provision in light of the entire scheme of
the Constitution22.
19. To solve this conundrum between structural and originalist views, reliance must be placed on the
Supreme Court’s decision in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur
and Ors. v. Union of India23, which held that the Courts shall avoid interpreting a provision of
law in a manner “which flouts notions of justice and norms of fairplay”, unless such “a contrary
intention is manifest from words plain and unambiguous” and that these “rules apply to the
interpretation of constitutional and statutory provisions alike.”
20. Furthermore, it has been already established above [Refer to Section I(B)(i) of the Memorial], the
Tenth Schedule of the Constitution is substantive in nature. On that note, the Supreme Court in
Hitendra Vishnu Thakur vs State of Maharashtra24, which carved out certain exhaustive
principles with regard to retrospective operation of an Amending Act, held that a provision of
law which is substantive in nature shall be “presumed to be prospective in operation unless made
retrospective, either expressly or by necessary intendment”25. Moreover, through an Amendment
the Parliament cannot take away certain already existing rights and liberties, and also cannot
create new liabilities or expand the ambit of already existing ones26.
21. On the facts and circumstances of this case, the “Grand Gatbandhan”, which was a pre-poll
alliance between JGU, Congress and DRP, was formed consensually amongst the three political
parties, who individually have registrations with the Election Commission of Dayabad under
Section 29A of The Representation of the People Act, 1951. At the time of formation of the
Alliance, all the three parties had the liberty to leave the alliance, both before and post elections,
whenever the circumstances compelled for the same. However, the Parliament by passing the
102nd Amendment to the Constitution tries to take away this specific right and liberty of political
parties, who have consensually formed a pre-poll alliance.
20
Greenawalt, Kent. 2015. Interpreting the Constitution. New Delhi: Oxford University Press; H.S. Jain v. Union of India,
1997 (29) ALR 159.
21
Id.
22
M. Nagraj & Ors v. Union of India and Ors., AIR 2007 SC 71, McCulloch v. Maryland, (1819) 17 U.S. 316; Weems v.
U. S., (1909) 54 L Ed 793 (801).
23
H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India, [1971] 1 SCC 85
24
Hitendra Vishnu Thakur vs State of Maharashtra, AIR 1994 SC 2623
25
P. Janardhana Shetty And Anr. vs The Union Of India, AIR 1970 Kant 171; Commissioner of Income Tax vs. Vatika
Township, 2015 1 SCC 1
26
Govind Das v. ITO, (1976) 1 SCC 906
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22. To that effect, reliance must be placed on the Supreme Court’s decision in K. Eapen Chacko vs
The Provident Investment Company27, where the Court held that if an Amendment has the effect
of altering an existing transaction or association, from “which the party was at liberty to depart
as long as he pleased”, must be interpreted to not have any retrospective application.

II. THE GOVERNOR’S INVITATION TO MR. HARI PUTTAR TO FORM THE XUHAR
GOVERNMENT, ON 3RD JUNE 2017, WAS IN ACCORDANCE TO THE LAW
23. Mr. Hari Puttar, claiming the support of all the JGU, DJS and 34 independent members of the
Assembly, requested the Governor of Xuhar to invite him the form the government of Xuhar. On
4th June 2017, the Governor invited Mr. Puttar to form the government of Xuhar and he was
sworn in as the Chief Minister of the State. The Petitioners have challenged the governor’s
decision to invite Mr. Puttar to form the State government.
24. The Constitution casts a duty upon the Governor of a State to adequately explore all possibilities,
in their real sense and right perspective, and invite a party or a combination of parties which can
command majority in the Assembly. Thus, on the facts and circumstances of this case, the
Governor had the discretion, under the Constitution, to appoint Mr. Puttar as the Chief Minister
of Xuhar [A]. Also, the Governor was duty bound, under the Constitution, to appoint Mr. Puttar
as the Chief Minister of Xuhar [B]. Under the Constitution, “Floor test” is not a condition
precedent to the appointment of the Chief Minister [C]. Furthermore, there is neither any
established constitutional practice nor any provision in the Constitution, under which the leader
of the largest single party, not in majority, must be invited to form the Government[D].

A. THE GOVERNOR HAD THE DISCRETION, UNDER THE CONSTITUTION, TO APPOINT MR.
PUTTAR AS THE CHIEF MINISTER OF XUHAR

25. Article 163(1) of the Constitution draws out two sets of duties and functions to be performed by
the Governor- first, the ones which can only be performed with the aid and advise of the Council
of Ministers and second, the ones which can be performed by the Governor through the exercise
of his discretion, without considering the advice of the Council of Ministers28. As held by the
Supreme Court in Samsher Singh v. State of Punjab and Anr29, the appointment of the Chief
Minister is one of such functions which the Governor can perform at his own discretion30.

27
K. Eapen Chacko vs The Provident Investment Company, AIR 1976 SC 2610
28
M.P. Special Police Establishment vs. State of M.P., (2004) 8 SCC 788; Rajendra Singh Verma vs. Lt. Governor (NCT
of Delhi), (2011) 10 SCC 1.
29
Samsher Singh v. State of Punjab and anr, 1974 (2) SCC 831
30
M.P. Singh. 1971. “Governor’s Power to Dismiss Ministers or Council of Ministers – An Empirical Study”. Journal of
the Indian Law Institute: (1971) 13 JILI 612; State of Gujarat v. RA Mehta, (2013) 3 SCC 1, 37.
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26. Moreover, Article 163(1) read with Article 163(2) read with Article 164(1) of the Constitution,
imparts the Governor of State the ultimate discretion to appoint the Chief Minister. Under Article
164(2) of the Constitution, the Council of Ministers shall be collectively responsible to the
Legislative Assembly of the State and thus, the Governor must be prima facie satisfied that the,
party or combination of parties, forming the Government commands the confidence of the
Legislative Assembly.
27. It is also extremely significant to take note of the fact that, under Article 164(1), the Constitution
does not specify any mandatory qualifications or any pre-condition for the appointment of the
Chief Minister or the Council of Ministers. Thus, the choice before the Governor of a State is not
limited or qualified by anything in the Constitution31.
28. In light of the constitutional provisions and the judicial precedents, it can be fairly concluded by
stating that the Governor of a State has the discretionary power to appoint the Chief Minister,
subject to that person satisfying the Governor with regard to his/her support in the Assembly.
The Governor was satisfied by Mr. Puttar’s claim, as he had the support of 154 members of the
State Assembly, and was constitutionally right in exercising his discretion.

B. THE GOVERNOR WAS DUTY BOUND, UNDER THE CONSTITUTION, TO APPOINT MR. PUTTAR AS
THE CHIEF MINISTER OF XUHAR

29. Reliance should be placed on the important observations of the Allahabad High Court’s decision
in H.S. Jain v. Union of India32, wherein was noted that, the sub-clause (1) of Article 163 and
Article 164 uses the word “shall”. Article 163(1) of the Constitution states that “There shall be a
council of Ministers with the chief Minister at the head” and Article 164(1) of the Constitution
states that the “The chief Minister shall be appointed by the Governor”. The word “shall” in this
context must interpreted strictly and be construed as casting a mandatory duty upon the
Governor. Also, the Constitution does give the Governor an option of not appointing the Chief
Minister, subject to majority support in the State Assembly.

C. UNDER THE CONSTITUTION, “FLOOR TEST” IS NOT A CONDITION PRECEDENT TO THE

APPOINTMENT OF THE CHIEF MINISTER

30. Once again, reliance must be placed on the decision of the Allahabad High Court in H.S. Jain v.
Union of India33, which held that proving of Majority on the floor of the State Assembly or
conducting a “Floor Test” is not a condition precedent to the appointment of the Chief Minster.

31
Kashyap, Anirban, Governor Role in Indian Constitution, Lancers Books, New Delhi, 1983; Karunakaran, K.P., “The
Governor, the Chief Minister and the Coalition” in Karunakaran, K.P., (ed.), Coalition Government in India, Indian
Institute of Advanced Study, Simla,
32
H.S. Jain v. Union of India, 1997 (29) ALR 159, at 280.
33
Id
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Thus, the appointment of the Chief Minister can happen in the Governor House, before
conducting a “Floor test” in the State Assembly.
31. Here it is important to deal with the decision of S.R. Bommai v. Union of India34, which is
generally understood to have mandated a “floor test” so as to ascertain the support of the
Assembly. In that decision, Justice Jeevan Reddy noted that, "The Constitution does not create
an obligation that the political party forming the Ministry should necessarily have a majority in
the Legislature. Minority Governments are not unknown. What is necessary is that, that
Government should enjoy the confidence of the House.35” The most relevant portion of that
decision placed in the present context, is Paragraph 39636, wherein the Supreme Court stated that
a floor test is not required if one party or group of parties is forming the State Government.
Thus, the precedent of S.R. Bommai is not binding or relevant in the present case.
32. This principle was also impliedly upheld in the recent Supreme Court’s decision of Chandrakant
Kavlekar v. Union of India37, wherein the Court dealing with the formation of the Goa
Government and with pari materia facts, upheld the appointment of the Chief Minister.
33. However, satisfying the Governor prima facie that the person to be appointed as the Chief
Minister commanded majority and confidence of the Assembly, is a condition precedent to the
appointment of the Chief Minister. On the facts and circumstances of the present case, Mr. Hari
Puttar satisfied the Governor by showing that he had the support of 154 members of the Xuhar
Assembly, which constituted majority.

D. THERE IS NEITHER ANY ESTABLISHED CONSTITUTIONAL PRACTICE NOR ANY PROVISION IN

THE CONSTITUTION, UNDER WHICH THE LEADER OF THE LARGEST SINGLE PARTY, NOT IN

MAJORITY, MUST BE INVITED TO FORM THE GOVERNMENT

34. Article 164(2) of the Constitution makes the Council of Ministers collectively responsible before
the Legislative Assembly and thus, bars the Governor from inviting the single largest party to
form the Government, unless the party can prima facie satisfy the Governor that they have the
majority support in the Assembly. Article 164 grants Governor the power to appoint the Chief
Minister and does not make any mention of a mandatory floor test precedent to appointment.
Even a minority party, enjoying the majority support and confidence of the Assembly, can be
invited by the Governor to form the State Government.
35. The Allahabad High Court in H.S. Jain v. Union of India38, while discarding the contention that
the single largest party must be called first to show majority, noted that “If decision is taken

34
S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918
35
Id.
36
Ibid at 396.
37
Chandrakant Kavlekar v. Union of India, 2017 3 SCC 758
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without any principle or ignoring the principle or without any rule, it is not predictable and such
decision is anti-thesis of a decision taken in accordance with rule of law. If we just turn over to
the preamble of our Constitution, we find that political justice is also a part of the basic
structure...”
36. The Supreme Court in recent decision of Chandrakant Kavlekar v. Union of India39, wherein the
Court dealt with a similar situation, upheld the appointment of the Chief Minister, who was not
from the single largest party but satisfied the Governor as to his support in the Goa Assembly.
37. Therefore, in light of the judicial precedents and constitutional provision, there is no
constitutional obligation on the Governor to call upon the single largest party to show majority.
III. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CHIEF JUSTICE OF

XUHAR HIGH COURT BREACHED THE PRIVILEGE AND COMMITTED

CONTEMPT OF THE XUHAR ASSEMBLY

38. The High Court of Xuhar, on the first day of the hearing of Petition 101/2017, ordered the
appearance of the Speaker of Xuhar Assembly before the Court and asked her to file an affidavit
stating the reasons for dismissing the petition for defection. In response, the Speaker of the
Xuhar Assembly sent a notice to the to the Registrar General of the High Court, calling upon the
Chief Justice to present herself before the Xuhar Assembly and to explain why proceedings for
Breach of Privilege of the House should not be commenced against her. On receipt of the notice,
the Chief Justice passed an immediate quashing order of the notice issued by the Speaker.
39. On this issue, it is submitted that the High Court breached the Privilege of the House as it did not
have the authority to order the Speaker to state reasons for dismissing the Petition for defection
[A]. Moreover, the Supreme Court is not bound by the decision of Keshav Singh decision or any
of its own precedents [B].

A. HIGH COURT BREACHED THE PRIVILEGE OF THE HOUSE AS IT DID NOT HAVE THE

AUTHORITY TO ORDER THE SPEAKER TO STATE REASONS FOR DISMISSING THE PETITION
FOR DEFECTION

40. Paragraph 6(1) of the Tenth Schedule of the Constitution imparts finality to the Speaker’s
decision with regard to cases of defection in the Assembly. Paragraph 6(2) of the Tenth Schedule
of the Constitution, states that any proceedings, under the Tenth Schedule of the Constitution, in
the State Legislature falls within the scope and ambit of article 212. Further, Article 212 of the

38
H.S. Jain v. Union of India, 1997 (29) ALR 159.
39
Chandrakant Kavlekar v. Union of India, 2017 3 SCC 758
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Constitution protects any proceeding of the State Assembly from being questioned or scrutinized
in a Court of law.
41. Although, it is now established that disqualification proceedings are subject to Judicial review,
the Courts still cannot review or inquire into any “stage prior to the making of a decision by the
Speaker.”, as held by the Supreme Court in Kihota Hollohon vs. Zachilhu and Others40.
42. The High Court of Xuhar had the authority to review the decision of the Speaker, but was
constitutionally barred from ordering the Speaker to state “other reasons and surrounding
circumstances”, not present on the record and the published decision of the Speaker, that
persuaded her to dismiss the petition for defection.
43. The proceedings for disqualification of JGU members in the present case, happened within the
four corners of the Xuhar Assembly and is both constitutionally and judicially protected.
Reliance for the same can be placed on the dissenting opinion of A.K. Sarkar, J. in In the matter
of: Under Article 143 of the Constitution of India41

B. THE SUPREME COURT IS NOT BOUND BY THE DECISION OF KESHAV SINGH OR ANY OF ITS
OWN PRECEDENTS

44. The Supreme Court’s decision of In the matter of: Under Article 143 of the Constitution of
India42 [“Keshav Singh’s decision”], which was a landmark decision on parliamentary privileges
and breach of that privilege by Judges of High Court, was made under Article 143 of the
Constitution and the opinion given by the Court in that reference is not binding on any Court or
parties per se.
45. Further, Article 141 of the Constitution gives rise to the principle of “stare decisis”, which
means that Supreme Court decisions are binding all Courts in the Dayabad’s territory. However,
the only exception to the principle is that Supreme Court itself is not bound by its own
precedents43, unless passed by a larger bench.

40
Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412
41
In the matter of: Under Article 143 of the Constitution of India, AIR 1965 SC 745
42
Id.
43
Bengal Immunity Co. Ltd v State of Bihar, AIR 1955 SC 661; Dwarka Das Shrinivas v Sholapur Spg Co. Ltd, AIR 1954
SC 119; C.N.Rudramurthy v K. Barkathulla Khan, (1998) 8 SCC 275; Rattan Arya v State of Tamil Nadu, AIR 1986 SC
1444; Synthetics and Chemicals Ltd. v State of U.P, AIR 1990 SC 1927.
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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced, and authorities cited it is

most humbly and respectfully prayed before this Hon’ble Supreme Court that:

(1) In Transfer Petition No. 123 of 2017, it may be pleased to dismiss the Petition with costs and

annul the Constitution (One Hundred Second Amendment) Act, 2017;

(2) In Transfer Petition No. 123 of 2017, it may be pleased to hold that the Governor of Xuhar’s

invitation to Mr. Hari Puttar to form the State Government was valid

(3) In Transfer Petition No. 124 of 2017, it may be pleased to hold that Chief Justice of Xuhar High

Court breached the privilege of Xuhar Assembly and committed contempt of the House.

And pass any other order in the ends of complete justice.

All of which is most humbly and respectfully submitted.

Date: 13th August, 2017 Counsel for JGU and Speaker,

Xuhar Assembly

Place: Nischintipur, Dayabad Counsel Code: 63A

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