MOOT COURT MEMORIAL

TABLE OF CONTENTS

• LIST OF ABBREVIATIONS .................................................................................3

• INDEX OF AUTHORITIES ...................................................................................4 -6

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

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

• ISSUES RAISED .....................................................................................................9

• SUMMARY OF ARGUMENTS ............................................................................ 10

• ARGUMENTS ADVANCED ................................................................................. 11-34

• CAN A PERSON SWORN IN AS PRIME MINISTER OF INDIA WHO IS NOT A MEMBER OF EITHER HOUSE OF PARLIAMENT BE SWORN IN?

• WHETHER THE APPOINTMENT OF PRIME MINISTER WITHOUT BEING THE MEMBER OF EITHER HOUSE OF PARLIAMENT ARE VIOLATING PROVISION OF ARTICLE 14 (EQUAL PROTECTION OF LAW) OF THE MP OR NOT?

• WHETHER THE NON MEMBER OF PARLIAMENT, IS ELIGIBLE FOR SUCH HIGHER POST LIKE PM IN THE CONTEXT OF TODAY'S SITUATION ? AND THE PROVOSIONS SATISFY THE NORMS OF DEMOCRACY(by the people, for the people, to the people) OR NOT ?

• PRAYER ................................................................................................................. 36

LIST OF ABBREVIATIONS

Abbreviation	Full form
Art.	Article
SC	Supreme Court
CoM	Council of Minister
PM	PRIME MINISTER
The Constitution	The Constitution of Indistan, 1949
v.	Versus
ed.	Edition

INDEX OF AUTHORITIES

	—STATUTES—
1.	THE CONSTITUTION OF INDISTAN, 1950
2.	THE REPRESENTATION OF THE PEOPLE ACT, 1951

—CASE LAWS—
S.P Anand v. H.D Deve Gowda 1996 6 SCC 734
See Har Sharan Verma v. Union of india and Anr. 1987 SCC 310
		—BOOKS/COMMENTARIES—
	1.	M.P. Jain’s Indian Constitutional Law

STATEMENT OF JURISDICTION

The jurisdiction of the Hon’ble Supreme Court of Indistan has been invoked under Article 32 of the Constitution of Indistan (hereinafter “the Constitution”). The same has been reproduced hereunder for ready reference:

Article 32.² Remedies for enforcement of rights conferred by this Part.—

· The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

· The Supreme Court shall have power to issue directions or orders or writs, including 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.

*****

STATEMENT OF FACTS

1. Govind Ram Khanna appointed as the prime minister of the country Indistan despite his lack of membership either house of parliament on the date in which he appointed as Prime minister by the president,Dr.Gopal Das

2. Petitioner quoted that by convention, the Prime Minister must always be a member of the lower house of Parliament

3. Petitioner challenges the act of President of appointment of Prime Minster by saying grave and serious constitutional error.

4. According to the petitioner, the action of the president is violative of Art.14, 21 and 75 of the constitution and, therefore, the act is ‘void ab initio’ and so that it should be quashed by issue of an appropriate writ under article 32 of the constitution by the SC.

5. The petitioner has also impleaded the union of India and the Speaker of the Lok Sabha (lower house of the parliament) as respondents.

6. Previously, a Constitutional Bench of the Supreme Court has held that a person who is not a

member of either House of Parliament, can be appointed a Minister of the Union for a

continuous period not exceeding six months.Similarly, another decision of the Apex Court has laid down that a person who is not a member of either House of State Legislature can be appointed a Minister in the concerned State for a continuous period not exceeding six months.

7. In acquiring of these facts, the petitioner argues the case that it would be taking a great risk if a person who is not accountable to the people, is appointed the Prime Minister and a person who is not the elected representative of the people of the country can’t allowed to occupy the high office as like prime minister of the country.

ISSUES RAISED

1. CAN A PERSON SWORN IN AS PRIME MINISTER OF INDIA WHO IS NOT A MEMBER OF EITHER HOUSE OF PARLIAMENT BE SWORN IN?

2. WHETHER THE APPOINTMENT OF PRIME MINISTER WITHOUT BEING THE MEMBER OF EITHER HOUSE OF PARLIAMENT ARE VIOLATING PROVISION OF ARTICLE 14 (EQUAL PROTECTION OF LAW) OF THE MP OR NOT?

3. WHETHER THE NON MEMBER OF PARLIAMENT, IS ELIGIBLE FOR SUCH HIGHER POST LIKE PM IN THE CONTEXT OF TODAY'S SITUATION ? AND THE PROVOSIONS SATISFY THE NORMS OF DEMOCRACY(by the people, for the people, to the people) OR NOT ?

SUMMARY OF ARGUMENTS

1. CAN A PERSON SWORN IN AS PRIME MINISTER OF INDIA WHO IS NOT A MEMBER OF EITHER HOUSE OF PARLIAMENT BE SWORN IN?

There is violation of Art. 14 as infringing the rights of the member of parliament to not giving to opportunity to the members and violation of Art.21 as threat to Right to information and life to the people of indistan. We are try to have a Constructive approach towars constitution which will be healthy for our democracy.

Although Article 75(5) of the Constitution permits a non-MP to be designated Minister for a period of five months, the petitioner argued that this person cannot be chosen Prime Minister.

2. WHETHER THE APPOINTMENT OF PRIME MINISTER WITHOUT BEING THE MEMBER OF EITHER HOUSE OF PARLIAMENT ARE VIOLATING PROVISION OF ARTICLE 14 (EQUAL PROTECTION OF LAW) OF MP OR NOT?

The provision of Art.75(5) are totally violation of the right of MP so on it is against the right of opportunity and as says’s “Equals should be treated alike it doesn’t mean that unequal ought to be treated

equally.”

WHETHER THE NON MEMBER OF PARLIAMENT, IS ELIGIBLE FOR SUCH HIGHER POST LIKE PM IN THE CONTEXT OF TODAY'S SITUATION ? AND THE PROVOSIONS SATISFY THE NORMS OF DEMOCRACY(by the people, for the people, to the people) OR NOT ?

ARGUMENTS ADVANCED

[ ISSUE 1]:CAN A PERSON SWORN IN AS PRIME MINISTER OF INDIA WHO IS NOT A MEMBER OF EITHER HOUSE OF PARLIAMENT?

The counsel raised the issue on the behalf of petitionor that Art. According to 75(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament , the line itself start from the word any minister and that minister are already qualified on the ground of being the CANDIDATE in Section 123(7) of The People’s Representative (Amendment) Act, 1975, was characterized as a person who files the nomination papers, and the taking the mandate from the people of india as being MP. Now here there is jump of these process and that’s against the election process which infringe the democracy. Here is some point for comparing to member of parliament with non member-

[1.1] QUALIFICATION FOR MEMBER OF PARLIAMENT-

Under Article 84 of the constitution provide the provisions for the qualification for member of parliament.-

· Must be a citizen of India.

· Must not be less than 25 years of age.

· Must be a sound person

· Must not be convicted by the court with imprisonment of two Or more years

· Must be a voter for any parliamentary constituency in India.

· Candidate of a recognised political party needs one proposer from his/her constituency for his/her nomination.

· An independent candidate needs ten proposers.

· Candidates are required to make a security deposit of ₹25,000.

[1.2] DISQUALIFICATION GROUNDS FOR MEMBER OF PARLIAMENT-

· Holds any office of profit under the Government of India (other than an office permitted by Parliament of India by law).

· Is of unsound mind.

· Is an insolvent.

· Has ceased to be a citizen of India.

· Is so disqualified by any law made by the Indian parliament.

· Is so disqualified on the ground of defection.

· Has been convicted, among other things, for promoting enmity between different groups.

· Has been convicted for offence of bribery.

· Has been punished for preaching and practising social crimes such as untouchability, dowry, or sati.

· Has been convicted for an offence and sentenced to imprisonment of more than two years.

· Has been dismissed for corruption or for disloyalty to the state (in case of a government servant)

[1.3] RESPONSIBILITIES OF MEMBERS OF PARLIAMENT-

· Legislative responsibility: To pass Laws of India in the Lok Sabha.

· Oversight responsibility: To ensure that the executive (i.e. government) performs its duties satisfactorily.

· Representative responsibility: To represent the views and aspirations of the people of their constituency in the Parliament of India (Lok Sabha).

· Power of the purse responsibility: To approve and oversee the revenues and expenditures proposed by the government.

· The Union Council of Ministers, who are also members of parliament have an additional responsibility of the executive as compared to those who are not in the Council of Ministers

[1.4] ELIGIBLITY AND APPOINTMENT AND POSITION OF PRIME MINISTER

The Constitution envisions a scheme of affairs in which the president of India is the head of state; in terms of Art. 53 with office of the prime minister being the head of Council of Ministers to assist and advise the president in the discharge of his/her constitutional functions. To quote, Art.53, 74 and 75 provide as under;

The executive powers of the Union shall be vested in the president and shall be exercised either directly or through subordinate officers, in accordance with the Constitution.

— Article 53(1), Constitution of India

There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the president who shall, in the exercise of his functions, act in accordance with such advice.

— Article 74(1), Constitution of India

The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.

— Article 75(1), Constitution of India

The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister

According to Art. 84 of the Constitution of Indistanj, which sets the principle qualification for member of Parliament, and Article 75 of the Constitution of India, which sets the qualifications for the minister in the Union Council of Ministers, and the argument that the position of Prime Minister has been described as primus inter pares (the first among equals), A Prime Minister must:

· be a citizen of India.

· be a member of the Lok Sabha or the Rajya Sabha. If the person chosen as Prime Minister is neither a member of the Lok Sabha nor the Rajya Sabha at the time of selection, they must become a member of either of the houses within six months.

· be above 25 years of age if they are a member of the Lok Sabha, or, above 30 years of age if they are a member of the Rajya Sabha.

· not hold any office of profit under the government of India or the government of any state or under any local or other authority subject to the control of any of the said governments.

Once a candidate is elected as the prime minister, they must vacate their posts at any private or government companies and may take up the position only on completion of their term. The Supreme Court in The State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333) held that “candidate” in Section 123(7) of The People’s Representative (Amendment) Act, 1975, was characterized as a person who files the nomination

[A]COMPARE TO A MEMBER OF EITHER HOUSE OF PARLIAMENT WITH NON-MEMBER OF PARLIAMENT …….

· The selective member use to get mandate from People of India but non-member of parliament doesn’t have the trust and mandate directly or indirectly to the people of India.

· The selective member followed the constitutional procedure as in fulfil the criteria of being a candidate of MP then elected by the people of India as member of parliament then takes oath by President but non member has not to follow these procedures, only enjoy the confidence of the majority of the lower house and appointed by the president.

· MP who has selected as the post of PM remain in the office for 5 years and till the confidence of majority but the member who appointed as PM is not member of either house need to attain membership within 6 month which may leads tofocus on attaining membership of house and stay in office rather than governing and concentrate on issues.

· The selective member is well familiar with social and local issues and also has burden to get mandate from people but the non elective member need the confidence of majority and that can be taken by in the position of favouritism, capitalism etc

Its argued by person with great passion, zeal and emotion, claiming to be concerned about the survival of the democratic process and the pristine glory of our constitutional scheme, submitted that if a person who is not the elected representative of the people of the country and in whom the people have not placed confidence, is allowed to occupy the high office of the Prime Minister on whom would rest the responsibility of governing the nation during peace and war (God forbid), it would be taking a great risk which the country can ill afford to take and, therefore, we should so construe the relevant provisions of the Constitution as would relieve the country of such act as well.

[ISSUE -2] WHETHER THE APPOINTMENT OF PRIME MINISTER WITHOUT BEING THE MEMBER OF EITHER HOUSE OF PARLIAMENT ARE VIOLATING PROVISION OF ARTICLE 14 (EQUAL PROTECTION OF LAW) OF MP OR NOT?

1. Art.14 says “Equals should be treated alike it doesn’t mean that unequal ought to be treated equally”

2. The council wants to get the attention of the court towards the difference of elected member of either house and non-elected member of either house.

3. Art.75 (5) infringing the equal protection of law of member of either house of parliament as it is taking the rights of member of parliament to not select PM among the member of parliament who represents the constituency and faith of people

4. After completing 6 months of period as non-member of either house if that majority party wants to back him/her as PM then there has to vacant a seat which infringe the right of then member of parliament, so it is again against the right of opportunity and discrimination with then member and people who have faith in that member.

5. The responsibility of the Council of Ministers to the House of the People is collective. Besides, the caption of Art.75 as a whole is “Other provisions as to Ministers”. No separate provision is to be found dealing with the appointment of the Prime Minister as such. Therefore, even though the Prime Minister is appointed by the President after he is chosen by such number of members of the House of the People as would ensure that he has the confidence of the House and would be able to command the support of the majority, and the Ministers are appointed on the advice of the Prime Minister, the entire Council of Ministers is made collectively responsible to the House and that ensures the smooth functioning of the democratic machinery. If any Minister does not agree with the majority decision of the Council of Ministers, his option is to resign or accept the majority decision. If he does not, the Prime Minister would drop him from his Cabinet and thus ensure collective responsibility. Therefore, even though a Prime Minister is not a member of either House of Parliament, once he is appointed he becomes answerable to the House and so also his Ministers and the principle of collective responsibility governs the democratic process. Even if a person is not a member of the House, if he has the support and confidence of the House, he can be chosen to head the CoM without violating the norms of democracy and the requirement of being accountable to the House would ensure the smooth functioning of the democratic process

6. We must also bear in mind the fact that conventions grow from longstanding accepted practices or by agreement in areas where the law is silent and such a convention would not breach the law but fill the gap.

3. WHETHER THE NON MEMBER OF PARLIAMENT, IS ELIGIBLE FOR SUCH HIGHER POST LIKE PM IN THE CONTEXT OF TODAY'S SITUATION ? AND THE PROVOSIONS SATISFY THE NORMS OF DEMOCRACY(of the people ,by the people for the people) OR NOT ?

The protector of the democracy is the constitution and taking the right of a MP as choosing a PM is violating the constitution. There is a procedure which is established by the law so that we could protect the rights of the people, in the context of now days scenario.

· Democracy "is government by the people in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system." In the phrase of Abraham Lincoln, democracy is a government "of the people, by the people, and for the people.

· Democracies fall into two basic categories, direct and representative. In a direct democracy, all citizens, without the intermediary of elected or appointed officials, can participate in making public decisions. Such a system is clearly only practical with relatively small numbers of people--in a community organization or tribal council, for example, or the local unit of a labour union, where members can meet in a single room to discuss issues and arrive at decisions by consensus or majority vote.

· The petitioner then invited our attention to Halsbury's Laws of England (3rd Edn.) p. 347 wherein at para 745 it is stated: “By conventional usage the Prime Minister is invariably a member of either House of Commons or House of Lords”; footnote (i) proceeds to add that the person selected is preferably to be a member of the House of Commons. The petitioner further urged that even if the Constitution is construed to permit a person who is not a member of either House of Parliament to be appointed a Minister for six months, there is nothing in Article 75(5) to suggest that he can be appointed the Prime Minister of the country. He urged that the status of the Prime Minister is distinct from that of a Minister and, therefore, it is essential that a person who occupies the high position of a Prime Minister should be an elected representative of the people. This submission overlooks the fact that the person who is appointed the Prime Minister is chosen by the elected representatives of the people and can occupy the position only if he enjoys the confidence of the majority of the elected representatives in the Lower house. Secondly, we must bear in mind the scheme of our Constitution and if our Constitution permits such appointment, that should put an end to the construe.

Now the appointment of PM by the president is violating the balance of democracy as that member is not elected by the people not directly or indirectly.

The protector of the democracy is the constitution and taking the right of a MP as choosing a prime minister is violating the constitution. There is a procedure which is established by the law so that we could protect the rights of the people, in the context of now days scenario. Getting the mandate of the majority by manipulation is not big deal that is why there should be a constructive approach to catch the current circumstances

PRAYER

Wherefore, in the light of the facts stated, issue raised, authorities cited and arguments advance ,it is most humbly prayed and important before the Hon’ble court, that it may be graciously pleased to adjudge and declared that-

i. Cancel the candidature of PM Govind Ram Khanna

ii. Give the equal right and opportunity to the MP of Indistan

My Appeal to Hon’ble court to give justice to my client

All of which is most humbly and respectfully submitted

ON BEHALF OF PETITIONER