IN THE HONBLE SUPREME COURT OF INDIA

WRIT PETITION (CIVIL) NO. 296 OF 2004 AND TP (CIVIL) NO. 663 OF 2004

B.P. SINGHAL
(Petitioner)
V.
UNION OF INDIA
(Respondent )

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Most Respectfully Submitted to the Honble

Supreme Court of India

CONSTITUTIONAL LAW II MOOT 2015

 TABLE OF CONTENT

INDEX OF ABBREVIATIONS....III

INDEX OF AUTHORITIES.....IV

STATEMENT OF JURISDICTION.....XI

STATEMENT OF FACTS....,,,XII

SUMMARY OF PLEADINGS.......XIII

DETAILED PLEADINGS....XI

A. Whether the petition is maintainable?

B. What is the scope of doctrine of pleasure?
C. What is the position of a Governor under the Constitution?
D. Whether there are any express or implied limitations/restrictions upon the power under Article
156(1) of the Constitution of India?

PRAYER.........XIX

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 INDEX OF ABBEREVATIONS

AIR : All India Reporters

Anr. : Another
Bom. : Bombay
Mad. : Madras
Ors. : Others
SEBA : Security Exchange Board of Aidia
SC : Supreme Court
SCC : Supreme Court Cases
Sd/- : Signed
Supp. : Supplementary
u/s : Under Section
v. : Versus
MAH : Maharashtra
SCC : Supreme Court Cases
LLJ : London Law Journal

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 INDEX OF AUTHORITIES

JUDICIAL DECISIONS
S.NO. CASE NAME CITATION
01. S.P. GUPTA V. UNION OF INDIA 1981(Supp) SCC 87
02. RANJI THOMAS V. UNION OF INDIA AIR 2000 (2) SCC 81
03. DUNN V. QUEEN 1896 (1) QB 116
04. SHENTON V. SMITH 1895 AC 229
05. UNION OF INDIA V. TULSIRAM PATEL (1985) 3 SCC 398
06. STATE OF BIHAR V. ABDUL MAJID 1954 SCR 786
07. P.L. DHINGRA V. UNION OF INDIA AIR 1958 SC 36
08. MOTI RAM V. N.E. FRONTIER RAILWAY AIR 1964 SC 600
09. STATE OF RAJASTHAN V. UNION OF INDIA 1977 (3) SCC 592
10. STATE OF KARNATAKA v. UNION OF INDIA 1977 (4) SCC 608
11. S.R.BOMMAI V. UNION OF INDIA 1994 (3) SCC 1
12. COUNCIL OF CIVIL SERVICE UNIONS V. MINISTER 985 AC 374
FOR THE CIVIL SERVICE
13. STATE OF RAJASTHAN V. UNION OF INDIA 1977 (3) SCC 592

REFFERED BOOKS
S.NO. BOOKS
01 D. D. BASU, COMMENTRY ON THE CONSTITUTION (LEXIS NEXIS
BUUTERWORTHS WADHWA, 8TH ED. 2009)

02. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2036 (UNIVERSAL

PUBLISHING CO., 4TH EDITION 2, 2008)

03. ADMINISTRATIVE LAW, HWR Wade & CF Forsyth - 9th Ed.

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 DICTIONARIES

S.NO. DICTIONARY
01. BLACKS LAW DICTINARY
02. CONCISE LAW DICTIONARY

HYPERLINKS

www.indiakanoon.com
www.westlaw.com
www.acadmia.edu

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 STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum before this Honble court. The counsel is
appearing through the jurisdiction of Article 32 of Constitution of India. It sets forth the facts
and laws on which the claims are based.

Article 32 read as-

(i) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(ii) The Supreme Court shall have power to issue directions or orders or writs, in the
nature of Habeas Corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by
this part.
(iii) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2).
(iv) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

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 STATEMENT OF FACT

1. This writ petition under Article 32 of the Constitution of India, raising a question of
public importance involving the interpretation of Article 156 of the Constitution, has
been referred to the Constitution Bench, by a two Judge Bench of this Court on
24.1.2005.
2. PIL filed by then former BJP MP B.P. Singhal. Singhals counsel Soli Sorabjee had
asked the Bench to issue a set of guidelines or limitations with regard to power of
President to remove Governors under Article 156(1) of the Constitution, asserting that it
was required to ensure the independence and effective functioning of Governors.
3. The writ petition is filed as in the wake of the removal of the Governors of the States of
Uttar Pradesh, Gujarat, Haryana and Goa on 2.7.2004 by the President of India on the
advice of the Union Council of Ministers who had challenged the removal of the
Governors of Uttar Pradesh, Gujarat, Haryana and Goa on May 2, 2004 by the President
on the advice of the newly formed UPA government. With regard to this the petitioner
sought a direction to the Union of India to produce the entire files, documents and facts
which formed the basis of the order dated 2.7.2004 of the President of India. There was
also a demand of a writ of certiorari, quashing the removal of the four Governors. Further
a writ of mandamus was also put forth to respondents to allow the said four Governors to
complete their remaining term of five years.
4. This writ petition, raised a question of public importance involving the interpretation of
Article 156 of the Constitution, has been referred to the Constitution Bench under Article
145 (3) of the Indian Constitution read with part IV order XXXV Rule 1 of the Supreme
Court rules, 1966.

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 STATEMENT OF ISSUES

A. Whether the petition is maintainable?

B. What is the scope of doctrine of pleasure?

C. What is the position of a Governor under the Constitution?

D. Whether there are any express or implied limitations/restrictions upon the

power under Article 156(1) of the Constitution of India?

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 SUMMARY OF PLEDINGS

A. Whether the petition is maintainable or not?

It is humbly contended that the PIL filed by Mr.B.P. Singhal is maintainable under Article
32 of the Constitution which guarantees the protection of Fundamental Rights enshrined under
Part III of the Constitution. Article 14 and Article 21 embodies the principle of Natural Justice
that clearly has not been ensured in the current matter, this violation of the Fundamental Rights
validating the maintainability. Further, the Petition is not on behalf of the Governor. Itll further
serve as a petition for protection of Rule of Law. The Locus Standi is validated as petitioner has
sufficient public interest to move the court and instead of being exclusively concerned with
individual Governors, the petitioner seeks transparent rules concerning the post and office of all
Governors, eventually seeking larger good of public.However, with regard to the general
question of public importance referred to the Constitutional Bench, touching upon the scope of
Article 156(1) and the limitation upon the doctrine of pleasure, the petitioner has necessary
locus.
B. What is the scope of doctrine of pleasure?

It is humbly submitted that the power of the president to remove a governor under article
156(1) is not absolute and fettered. The term of five years provided in Article 156(3) is subject to
the doctrine of pleasure contained in Article 156(1)but not absolutely. The Constitution does
place restrictions or limitations upon the doctrine of pleasure. Therefore, it may be permissible to
read with any kind of limitation into the power under Article 156(1). The power of removal is
exercised by the president on the advice of the council of ministers. But the removal must be on
some grounds that removal of the Governor should for the compelling reasons. Further, there
should not be any whimsical or capricious grounds for removal.

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 ARGUMENTS ADVANCED

Counsel humbly submits that:

WHETHER THE PETITION IS MAINTAINABLE OR NOT?

It is most respectfully submitted before the Honorable court that in the context of the
instant case, the PIL is filed under Article 32 of Indian Constitution, which guarantees
the protection of the Fundamental Rights, enshrined in the Part III of the Constitution.
There has been substantial violation of Fundamental Rights of the Governor, the
Executive Head of the state. This has consequently resulted into gradual loss to public.
1.1 THERE HAS BEEN A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE:

1.1.1 Principle of Natural Justice Contained In the Article 14 of Constitution of India.

As we know that this Article guarantees equality before law and equal protection of law.
It bars discrimination and prohibits both discriminatory laws and administrative action.
Art 14 is now proving to be bulwark against any arbitrary or discriminatory state action.
The horizons of equality as embodied in Art 14 have been expanding as a result of the
judicial pronouncements and Art 14 has now come to have a highly activist magnitude.
It laid down general preposition that all persons in similar circumstance shall be treated
alike both in privileges and liabilities imposed. In some cases, the Courts insisted, with a
view to control arbitrary action on the part of the administration, that the person
adversely affected by administrative action be given the right of being heard before the
administrative body passes an order against him. It is believed that such a procedural
safeguard may minimize the chance of the Administrative authority passing an arbitrary
order.

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Justice P.N Bhagwati stated1: the principle of reasonableness which legally as well as
philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence.
It is Submitted before the Honble Court that:
The Supreme Court has extracted from Art.14 following its precedents that the
Principle of Natural Justice is an integral part of administrative process.2
It is contented that the Actions of Central Government in the present case of sacking of governor
were both arbitrary and unreasonable, and it also wholly ignored and stood aside the Audi
Alterum Partum Rule and, thus, it violated Article 14 of Constitution of India.

1.1.2. Principle Of Natural Justice Contained In The Article 21 Of Constitution Of

India.

In Maneka Gandhi v. Union of India,3 Supreme Court by realizing the implications of A.K.
Gopalan Case4 during 1975 emergency took U turn and held that 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 cannot be arbitrary, unfair
or unreasonable. The concept of reasonableness must be projected in the procedure
contemplated by Art.21. The Court has now assumed the power to adjudge the fairness and
justness of procedure established by law to deprive a person of his personal liberty.6 The Court
has reached this conclusion by holding that Arts. 21, 19 and 14 are mutually exclusive, but are
inter-linked.

1
Maneka Gandhi v. Union of India, 1978 AIR 597
2
Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991 SC 101; Maneka Gandhi v. Union of India, AIR
1978 SC 597; Central Inland Water Transport Corporation Ltd v. Briojo Nath, AIR 1986 SC 1571; Cantonment
Board, Dinapore v. Taramani AIR 1995 SC 61; Kanda v. Govt. of Malaya 1962 A.C. 322; Danial H. Walcott v.
Superintendent, Nagpur Central, 1972 74 BOMLR 436;
3
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
4
A.K. Gopalan v. The State Of Madras, 1950 AIR 27, 1950 SCR 88.

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In S.P. Gupta v. President of India And Ors.5, where Dr. Upendra Baxi v. State of U.P.6 was
referred as precedent, it was held that the Doctrine of Public Interest Litigation was formulated
by a Bench of 7 Judges in a comprehensive form, to apply to any case of public injury arising
from
A. the breach of any public duty, or
B. the violation of some provision of the Constitution, or
C. Of the law.
The doctrine was applied by the Supreme Court to enforce fundamental rights under Article 32,
not only to enforce fundamental rights but also to restrain the Executive from undermining the
public interest.7
In U.P. Warehousing Corporation v. Vijay Narain8, the Honble Supreme Court held that Writ of
Certiorari or Prohibition usually goes to a body which is bound to act fairly or according to
natural justice and it fails to do so. In the same manner where the decision is affected by bias,
personal, or pecuniary, or subject matter as the case may be considered as violation of principle
of natural justice. In such circumstances also Writ of Certiorari and Prohibition can be issued
both Under Art 32 and 226.
In the present case, Council of Ministers arbitrarily influenced, under article 74(1), the doctrine
of pleasure, which is to be executed by the president, for their own political benefits.
Therefore, now, it is viable to establish and consider the present situation, in a way pertaining to
the violation of Principle of Natural Justice.

1.2 VALIDATION OF THE PRINCIPLE OF LOCUS STANDI.

According to Black's Law Dictionary9:-

"Public Interest Litigation means a legal action initiated in a court of law for the enforcement of
public interest or general interest in which the public or class of the community have pecuniary
interest or some interest by which their legal rights or liabilities are affected."

5
S.P. Gupta v. President Of India And Ors. AIR 1982 SC 149.
6
Dr. Upendra Baxi v. State of U.P, 1983 (2) SCC 308.
7
Supra
8
U.P. Warehousing Corporation v. Vijay Narain, AIR 1980 SC 840.
9
Blacks Law Dictionary 435, 9th Ed., 2009.
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This petition should not be considered to be filed on behalf of the Governor or for claiming his
benefits but should be taken as petitioner who will definitely be on the loss side due to such
unconstitutional and unreasonable politically motivated decisions. This petition is to plead before
the Judiciary to protect the Rule of Law which is clearly highlighted as an integral part of the
Constitution.10
There are two basic reasons as to why the petitioner is claiming this:
1. This would encourage the practise of removing the Governor, who is not In-Sync with the
policies of the Government or the Governor who takes decisions disfavouring the profits of the
State Ministry.
2. This would serve as deterrent, for the future Governors, to frame a policy in the favour of the
Citizens of the State and carry out their Constitutional Obligations, if it goes against the policies
of the State.
The Rule of Locus Standi have been relaxed11 and a person acting bona fide and
having sufficient interest in the proceeding of Public Interest Litigation will alone have a
Locus Standi and can approach the court to wipe out violation of fundamental rights and
genuine infraction of statutory provisions.12
Any member of the public having sufficient interest can maintain an action for judicial
redress for public injury arising from breach of public duty or from violation of some
provision of the Constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provision.17
Justice Krishna V. Iyer in Fertilizer Corporation Kamgar Union v. Union of
India13enumerated the following reasons for liberalization of the rule of Locus Standi:

1. Exercise of State power to eradicate corruption may result in unrelated interference

with individuals rights.

2. Social justice requires liberal judicial review of administrative action.

10
S.R. Bommai v. Union of India, 1994 AIR 1918.
11
S.P. Gupta v. President Of India And Ors. AIR 1982 SC 149.
12
D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579; Mumbai Kamagar Sabha v. Abdul
Thai, AIR 1976 SC 1455; Fertilizer Corporation Kamgar v. Union of India, AIR 1981 SC
149.
13
Fertilizer Corporation Kamgar v. Union of India, AIR 1981 SC 149
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3. Restrictive rules of standing are antithesis to a healthy system of administrative
action.

4. Activism is essential for participative public justice.

Therefore, a public minded citizen must be given an opportunity to move the court in
the interests of the Public. In the present case, the petitioner has sufficient Public
Interest and therefore, completely satisfies the pre-requisite of the principle of Locus
Standi.
Hence, in the light of the above stated arguments, cited authorities, and issue raised.
The petitioner seeks:
(a) a direction to the Union of Indus Land to produce the entire files, documents and
facts which formed the basis of the order of the President of India;
(b) a writ of certiorari, quashing the removal of the Governor; and
(c) a writ of mandamus to the respondents to allow the Governor to complete their
remaining term of five years

WHAT IS THE SCOPE OF DOCTRINE OF PLEASURE ?

The Doctrine of Pleasure says that certain authorities hold office till he or she enjoys the
confidence of the President or the Governor. The Latin maxim durante bene pacito which
means during pleasure, lead to the formation of this Doctrine. This Doctrine has its origin in
the Common Law of England. Doctrine of Pleasure refers to the discretion vested in the
President to remove various Constitutional functionaries. However, Article 156 merely mentions
that the Governor shall hold office during the pleasure of the President.
At this Juncture, let us also remember the words of Justice Holmes:
The provisions of the Constitution are not mathematical formulas having their essence in their
form; they are organic, living institutions.. The significance is vital, nor formal; it is to be

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gathered not simply by taking the words and a dictionary, but by considering their origin and the
line of their growth.14
It is important to understand that it is not the President who has the powers to remove the
Constitutional Functionary; it is the Constitution which has it. So if the President makes use of
this power, he has to do it in accordance with the Constitution of the Land. So, any Decision
taken based on some provisions of the Constitution, should be in strict accordance with the sprit
and the Fundamentals of the Constitution.
The following classic statement from Administrative Law (HWR Wade & CF Forsyth - 9th Ed. -
Pages 354-355) is relevant in this context :
"The common theme of all the authorities so far mentioned is that the notion of absolute or
unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it
were upon trust, not absolutely.......The powers of public authorities are therefore essentially
different from those of private persons. A man making his will may, subject to any rights of his
dependants, dispose of his property just as he may wish. He may act out of malice or a spirit of
revenge, but in law this does not affect his exercise of his power. In the same way a private
person has an absolute power to allow whom he likes to use his land, to release a debtor, or
where the law permits, to evict a tenant, regardless of his motive. This is unfettered discretion.
But a public authority may do none of these things unless it acts reasonably and in good faith and
upon lawful and relevant grounds of public interest...... The whole conception of unfettered
discretion is inappropriate to a public authority, which possesses powers solely in order that it
may use them for the public good. There is nothing paradoxical in the imposition of such legal
limits. It would indeed be paradoxical if they were not imposed."

It is of some relevance to note that the `Doctrine of Pleasure' in its absolute unrestricted
application does not exist in India. The said doctrine is severely curtailed in the case of
government employment, as will be evident from clause (2) of Article 310 and clauses (1) and
(2) of Article 311. Even in regard to cases falling within the proviso to clause (2) of Article 311,
the application of the doctrine is not unrestricted, but moderately restricted in the sense that the
circumstances mentioned therein should exist for its operation.

14
Gompers v. United States, 233 US 603.
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 15
In Abdul Majid , this Court considered the scope of the doctrine of pleasure, when examining
whether the rule of English Law that a civil servant cannot maintain a suit against the State or
against the Crown for the recovery of arrears of salary as he held office during the pleasure of the
crown, applied in India. This Court held that the English principle did not apply in India. It also
shows the `absoluteness' attached to the words `at pleasure' is in regard to tenure of the office
and does not affect any constitutional or statutory restrictions/limitations which may apply.

Article 310 read with Article 311 provide an example of the application of `at pleasure' doctrine
subject to restrictions. Clause (1) of Article 310 relates to tenure of office of persons serving the
Union or a State, being subject to doctrine of pleasure. However, clause (2) of Article 310 and
Article 311 restricts the operation of the `at pleasure' doctrine contained in Article 310(1).
Article 15632 merely mentions that the Governor shall hold office during the pleasure of the
President. It does not prescribe any conditions for exercising this pleasure. However, this does
not mean that the discretion is absolute, unrestricted and unfettered.
Article 74(1)33 of Constitution of India, 1949 on a close read utters out an interpretation that
there is an obligation on the President and he is bound to accept and work a per the advice of
council of ministers, which cannot be deviated.

Court in P.L. Dhingra v. Union of India - AIR 1958 SC 36, referred to the qualifications on the
pleasure doctrine under Article 310:
"Subject to these exceptions our Constitution, by Art. 310(1), has adopted the English Common Law rule
that public servants hold office during the pleasure of the President or Governor, as the case may be and
has, by Art. 311, imposed two qualifications on the exercise of such pleasure. Though the two
qualifications are set out in a separate Article, they quite clearly restrict the operation of the rule
embodied in Art. 310(1). In other words the provisions of Art. 311 operate as a proviso to Art.
310(1)."
Again, in Moti Ram v. N.E. Frontier Railway - AIR 1964 SC 600, this Court referred to the qualifications
to which pleasure doctrine was subjected in the case of government servants, as follows :
"The rule of English law pithily expressed in the latin phrase `durante bene placito ("during pleasure") has
not been fully adopted either by S. 240 of the Government of India Act, 1935 or by Art. 310(1) of the
Constitution. The pleasure of the President is clearly controlled by the provisions of Art. 311, and so, the
field that is covered by Art. 311 on a fair and reasonable construction of the relevant words used in that

15
State of Bihar v. Abdul Majid - 1954 SCR 786
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article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the
President would still be there, but it has to be exercised in accordance with the requirements of Art. 311."

Hence, Doctrine of Pleasure is not an Exclusive Power of the President but is, indeed, influenced
by the Bias and Benefits of the Council of Ministers and their politically motivated reasons. The
instant case is a perfectly fit-in example of such an issue. It is clear that the Governors, was not
in-sync with the policies of new government, and once, they gained majority in lower house
of parliament , after winning in the general elections, and came into the power, they sacked him
using their power arbitrarily and hence violating the fundamental principle of Constitutionalism.
It is impossible to hold that the Governor is under the control of the Government of India. His
office is not subordinate or subservient to the Government of India. He is not amenable to the
directions of the Government of India, nor is he accountable to them for the manner in which he
carries out his functions and duties. His is an Independent Constitutional Office which is not
subject to the control of the Government of India. He is constitutionally the head of the State in
whom is vested the executive power of the State and without whose assent there can be no
legislation in exercise of the legislative power of the State. There can, therefore, be no doubt that
the office of Governor is not an employment under the Government of India and it does not
come within the prohibition of clause (d) of Article 319.16The Counsel on Behalf of Petitioner
sees that there is no such thing as absolute and unfettered discretion in India. There is a
distinction between the doctrine of pleasureas it existed in a medieval set-up and the doctrine of
pleasure in a democracy governed by Rule of Law. Where Rule of Law prevails, there is
nothing like unrestricted discretion or unaccountable action. The degree of need for reason
may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists.

16
Baldev Raj Guliani & Ors. v. The Punjab & Haryana High Court & Ors., 1976 AIR 2490
; Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court, 1956 AIR 285.
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 PRAYER

Wherefore in the light of arguments advanced and authorities cited, the Respondent humbly

submits that the Honble Court may be pleased to adjudge and declare that:

TO HOLD

1. Petition must not be set aside because it is maintainable.

2. Doctrine of Pleasure must be excercised on certain compelling grounds.

MISCELLANEOUS

1. Any other order as it deems fit in the interest of equity, justice and good

conscience.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

Sakshi Dhruw

(Counsel for the Petitioner)

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