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CODE: R-4

ANNUAL UNIVERSITY MOOT 2018

BEFORE THE HONOURABLE HIGH COURT

UNDER ARTICLE 365 OF INDIAN CONSTITUTION

STATE OF UTTAR PRADESH…………………………………………PETITIONER


V.
UNION OF INDIA…………………………………………………….…RESPONDENT

MEMORIAL FOR THE RESPONDENTS

COUNSEL APPEARING ON THE BEHALF OF T HE RESPONDENTS


ANNUAL UNIVERSITY MOOT, 2018

TABLE OF CONTENTS
ABBREVIATIONS .................................................................................................................. 2
INDEX OF AUTHORITIES ................................................................................................... 3
STATEMENT OF JURISDICTION...................................................................................... 4
STATEMENT OF FACTS ...................................................................................................... 5
ISSUES RAISED ...................................................................................................................... 7
SUMMARY OF ARGUMENTS............................................................................................. 8
I. WHETHER THE GOVERNOR HAD THE OBLIGATION TO MAKE REPORTS? .. 8
II . WHETHER SABOTAGING SECULARISM OF THE STATE GIVES RISE TO A SITUATION IN
WHICH GOVERNMENT OF THE STATE CANNOT BE CARRIED ON IN ACCORDANCE WITH THE
PROVISIONS OF THE CONSTITUTION? ....................................................................................... 8
III. WHETHER THERE WAS A FAILURE OF CONSTITUTIONAL MACHINERY .. 8
ARGUMENTS ADVANCED................................................................................................ 10
I. THE GOVERNOR HAD THE OBLIGATION TO MAKE REPORTS ........................ 10
2. THAT SABOTAGING SECULARISM OF THE STATE GIVES RISE TO A SITUATION IN WHICH
GOVERNMENT OF THE STATE CANNOT BE CARRIED ON IN ACCORDANCE WITH THE
PROVISIONS OF THE CONSTITUTION. ...................................................................................... 11
3. THERE WAS A FAILURE OF CONSTITUTIONAL MACHINERY ....................................... 13
4. THAT PRESIDENT CAN IMPOSE STATE EMERGENCY ....................................... 14
PRAYER ................................................................................................................................. 17

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ABBREVIATIONS

1. A.I.R - All India Reporter

2. Art. - Article

3. CJI - Chief Justice of India

4. Hon’ble - Honorable

5. i.e. - That is

6. J. - Judge

7. Ors. - Others

8. All. - Allahabad

9. Mad. - Madras

10. PIL - Public Interest Litigation

11. SC - Supreme Court of India

12. SCC - Supreme Court Cases

13. Sd/- - Signed

14. UP - Uttar Pradesh

15. v - Versus

16. ANP - Apelonian Nationalist Party

17. APP - Apelonian People’s Party

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INDEX OF AUTHORITIES

CASES

(1977) 3 S.C.C. 592. ................................................................................................................ 11


.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; Krishna Kumar Singh v. State Of Bihar,
(2017) 3 S.C.C. 1; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976)
2 S.C.C. 17. .......................................................................................................................... 12
1994) 3 S.C.C. 1....................................................................................................................... 11
Han v. F. N. Rana and Others ................................................................................................. 15
In Re Shree Ramalu, A.I.R. 1974 AP 106 ............................................................................... 14
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225; Indira Nehru Gandhi v. Raj
Narain, 1975 Supp S.C.C. 1. ................................................................................................ 11
Padfield v. Minister of Agriculture, Fisheries and Food ; [1968] A.C. 997 ........................... 16
R.C. Cooper v. Union of India, (1970) 1 S.C.C. 248 at 277. ................................................... 14
S.R Bommai v Union of India; 1994(3) S.C.C. 1. .................................................................... 15
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1. ..................................................... 11, 12, 13
S.R.Bommai v Union of India, (1994) 3 S.C.C. ....................................................................... 14
State of Rajasthan & Ors v. Union Of India Etc ; 1978 S.C.R. (1) 1. .................................... 16
State of Rajasthan v Union of India A.I.R. 1977 S.C. 1361. ............................................... 9, 13
SundarlalPatwa v Union of India, A.I.R. 1993 M.P. 214 ....................................................... 14

OTHER AUTHORITIES

Constitution of India, 1950, art 356. .................................................................................... 9, 13


Moot proposition...................................................................................................................... 12
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; S. Veerabadran Chettiar v. E.V.
Ramaswami Naicker, 1959 S.C.R. 1211; S. Harcharan Singh v. S. Sajjan Singh, (1985) 1
S.C.C. 370. ........................................................................................................................... 13

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STATEMENT OF JURISDICTION

In the present petition under Article 226 of the Constitution the petitioners humbly submits to
the jurisdiction of this Hon’ble Court.

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STATEMENT OF FACTS

1. Uttar Pradesh is a powerful and robust state of India. Uttar Pradesh is a populous state
of India and highly political in character. Every political party in India wants to have
a ruling majority in U.P. Every political party knows that rule in U.P. will lead them
to Centre governance someday.State of U.P. has given maximum number of Prime
Ministers to India. The political DNA of youth is charged. All political parties in the
state are having youth wings. In central governance there are two powerful political
parties IJP and IDP. IJP is a right-wing party while IDP is centrist and poses itself as a
secular party of the country. Indian population is a mix of Christian, Hindu, Muslim
and Jews. U.P. is currently under rule of IJP.
2. Thakurganj is a thickly populated area of Lucknow. In this area in certain pockets
Muslim population lives in concentrated manner. However, the area has maintained
its inclusive culture and is known for its metal work and Jadozi worldwide.On the eve
of Makar Sankranti i.e. 14th January 2016 Hindu Vayuputra Sena (HVS) a hindu
youth wing of IJP plans a meeting in Babuganj area wherein they plan to congregate
for Tiranga Yatra in Thakurganj area and they post it on their official webpage of
Facebook and Instagram.
3. On 15th January Prajatantrik Chatra Sena (PCS) a outfit supported by U.P. local party
makes a post that if you dare come in ‘Pathakha Wali Gali’ on the day of Republic
Day. HVS responds to the challenge on social media.The challenge is brought in to
the knowledge of SSP City by a youth of the city which is ignored by him due to his
business on the occasion of Republic Day celebration in the city.
4. On the Republic Day around 12:30 in the noon the Tiranga yatra starts from
Hazratganj and goes in the Pathakha Wali Gali wherein Anti-muslim and Anti-
Pakistan slogans are mouthed and firing is made by illegal arms. In the clash of this
nature firing is exchanged between both groups wherein Prakash a member of HVS is
killed on spot.
5. This incident spurs violence in the city and suddenly 6 UPSRTC buses are torched
and dozens of shops are looted, and this communal clash leads to a devastating effect
in the city.Till the Police could gear up to deal with the situation much harm had been
made to the city and this incident left a big scar on the face of humanity.

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6. Governor of U.P. names the incident as ‘Blot on the face of U.P.’. Chief Minister of
U.P. is quite annoyed with the incident orders for a Magisterial probe of the incident
and asks for immediate action against the miscreants. IDP demand resignation from
the state government on moral grounds. IJP says that this communal riot was result of
conspiracy of opposition. The Thakurganj incident is highlighted by media with full
glare and creates a pressure over Governor for imposition of presidential rule.
7. The ruling government in the state of U.P. is running with a sweeping majority. The
LIU and IB report sent before the incident shows lack of action on the part of Police
and especially inaction of SSP caused this violence to happen.The SSP is suspended
from his job till pendency of the inquiry. The Governor being perturbed by the whole
issue recommends for imposition of Presidential rule under Article 356 of Indian
Constitution.
8. The President on the report of Governor imposes emergency. State Government
challenges the emergency rule before the High Court.

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ISSUES RAISED

I. WHETHER THE GOVERNOR HAD THE OBLIGATION TO MAKE REPORTS?

II. WHETHER SABOTAGING SECULARISM OF THE STATE GIVES RISE TO A


SITUATION IN WHICH GOVERNMENT OF THE STATE CANNOT BE
CARRIED ON IN ACCORDANCE WITH THE PROVISIONS OF THE
CONSTITUTION?
III. WHETHER THERE WAS A FAILURE OF CONSTITUTIONAL MACHINERY?

IV. WHETHER THE PRESIDENT WAS SATISFIED SO AS TO IMPOSE STATE


EMERGENCY IN THE STATE OF UTTAR PRADESH?

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SUMMARY OF ARGUMENTS

I. WHETHER THE GOVERNOR HAD THE OBLIGATION TO MAKE REPORTS?


Governor is an executive head of a State. Under Article 159 the governor takes oath in name
of god that “he will to the best of his ability preserve, protect and defend the Constitution.”
So, it is the prime duty of the Governor to protect, preserve and defend constitutional
provisions within state. Continuing the same intention, Article 356 confers power to the
Governor in case of failure of constitutional machinery within states. With the use of words
‘president ……is satisfied that’, establishes that the report of the governor need not be always
implemented, the satisfaction of President is required.

II . WHETHER sabotaging secularism of the state gives rise to a situation in which


Government of the state cannot be carried on in accordance with the provisions of the
Constitution?
It is humbly submitted before the court that secularism is a part of the basic structure of the
Constitution. It has been held in the case of S.R. Bommai v. Union of India that the acts of a
State Government which are calculated to subvert or sabotage secularism as enshrined in our
Constitution, can lawfully be deemed to give rise to a situation in which the Government of
the State cannot be carried on in accordance with the provisions of the Constitution.

III. WHETHER THERE WAS A FAILURE OF CONSTITUTIONAL MACHINERY


It is humbly submitted under the steady gaze of the court that there was a failure in
constitutional machinery in Uttar Pradesh. It is expressed in article 356 1 that if the President,
on receipt of a report from the Governor of a State or something else, is satisfied that a
circumstance has emerged in which the Government of the State can't be carried on as per the
arrangements of this Constitution he can accept every one of the elements of the
administration of the state. In the present case the administration has not possessed the
capacity to keep up lawfulness in Uttar Pradesh because of which a great deal of misfortune

1
Constitution of India, 1950, art 356.

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has jumped out at state and its kin. It was seen in State of Rajasthan v Union of India2 that a
flare-up of extraordinary viciousness which the Government can't check might be thought for
exercise of forces under Article 356 of the Constitution.

IV. WHETHER THE PRESIDENT WAS SATISFIED SO AS TO IMPOSE STATE


EMERGENCY IN THE STATE OF UTTAR PRADESH?
It is humbly submitted before the Supreme Court of India that the state emergency can be
imposed under Article 356 of the Indian Constitution because the president of india is
satisfied with the governors report on the incident. Article 356 of India Constitution says that
the emergency (due to failure of constitutional machinery) in a State can be proclaimed if the
President of India is satisfied with the report of a Governor or otherwise, or on his own
initiative that a situation has arisen in which that State Government cannot be carried on in
accordance with the provisions of the Constitution

2
State of Rajasthan v Union of India A.I.R. 1977 S.C. 1361.

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ARGUMENTS ADVANCED

I. THE GOVERNOR HAD THE OBLIGATION TO MAKE REPORTS


Governor is an executive head of a State. Under Article 159 the governor takes oath in name
of god that “he will to the best of his ability preserve, protect and defend the Constitution.”
So, it is the prime duty of the Governor to protect, preserve and defend constitutional
provisions within state. Continuing the same intention, Article 356 confers power to the
Governor in case of failure of constitutional machinery within states. With the use of words
‘president ……is satisfied that’, establishes that the report of the governor need not be always
implemented, the satisfaction of President is required.

In the case of S.R.Bommai v. Union of India3, Justice Ramaswamy said that the Governor, as
a constitutional head of the government must, in times of constitutional crisis, bring about
sobriety and should, with a high degree of constitutional responsibility, inform the President
about the situation in the state.

In State of Rajasthan v. Union of India4, CJ Beg quoted India’s first Attorney General M.C.
Setalvad’s Tagore Law Lectures in 1974 on “Union State Relations" which is as follows:
“There could also be a failure of the constitutional machinery where the Ministry fails to
carry out the directives issued to it validly by the Union Executive in the exercise of its
powers under the Constitution. The very statement of some of the situations, which may bring
about the use of the machinery provided by Article 356 shows the pivotal position which the
Governor occupies in respect of these situations and the grave responsibility of his duties in
the matter of reporting to the President under Articles 355 and 356 of the Constitution.”

Similarly, in the present case the conditions in the State of U.P. were as such which led to the
failure of constitutional machinery in the state and governor being perturbed by the whole
issue recommended for imposition of Presidential rule under Article 356 of Indian
Constitution.

3
(1994) 3 S.C.C. 1.
4
(1977) 3 S.C.C. 592.

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2. That sabotaging secularism of the state gives rise to a situation in which Government
of the state cannot be carried on in accordance with the provisions of the Constitution.
It is humbly submitted before the court that secularism is a part of the basic structure of the
Constitution.5 It has been held in the case of S.R. Bommai v. Union of India that the acts of a
State Government which are calculated to subvert or sabotage secularism as enshrined in our
Constitution, can lawfully be deemed to give rise to a situation in which the Government of
the State cannot be carried on in accordance with the provisions of the Constitution.6

Religious tolerance and equal treatment of all religious groups and protection of their life and
property and of the places of their worship are an essential part of secularism enshrined in our
Constitution. Any profession and action which go counter to the aforesaid creed are a prima
facie proof of the conduct in defiance of the provisions of our Constitution. The
consequences of such professions and acts which are evidently against the provisions of the
Constitution cannot be measured only by what happens in praesenti.7 A reasonable prognosis
of events to come and of their multifarious effects to follow can always be made on the basis
of the events occurring, and if such prognosis had led to the conclusion that in the
circumstances, the Governments of the States could not be carried on in accordance with the
provisions of the Constitution, the inference could hardly be faulted.

It has been stated in S.R. Bommai case that whatever the attitude of the State towards the
religions, religious sects and denominations, religion cannot be mixed with any secular
activity of the State. In fact, the encroachment of religion into secular activities is strictly
prohibited. This is evident from the provisions of the Constitution.8 HVS, a hindu youth wing
of IJP (a right wing and the ruling party of U.P.), planned to congregate for TirangaYatra in
Thakurganj area and posted the same on their official webpage of Facebook and Instagram.9
The TirangaYatra was only planned for Thakurganj area, however, they deliberately entered
the area of Patakhawali gali to answer the challenge posed by PCS. HVS, well aware of the
diversity and the people residing in Patakhawali gali, got involved in clashes involving verbal
and physical abuse. The reciting of anti-muslim slogans and anti-pakistan slogans and the

5
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp
S.C.C. 1.
6
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
7
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
8
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; Krishna Kumar Singh v. State Of Bihar, (2017) 3 S.C.C. 1;
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 S.C.C. 17.
9
Moot proposition.

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firing led to the death of a member of HVS.10 This death of a member of HVS further
enraged the youth wing and it can be inferred that the burning of buses was an act initiated on
their part.

The common thread of breach of secularism ran through the events and with prognosis action
was taken. Consequential situation that arose due to which the President was satisfied that
Government of the State of Uttar Pradesh cannot be carried on in accordance with the
provisions of the Constitution and it breached the basic features of the Constitution, namely
secularism. Therefore the satisfaction reached by the President cannot be said to be irrelevant
warranting interference. It is but the duty of the court to interpret the Constitution to bring the
political parties within the purview of constitutional parameters for accountability and to
abide by the Constitution, the laws for their strict adherence.11

Secularism was subverted the moment those slogans were shouted12 and hence, the act of
HVS, a youth wing of the state government, led to the inability of the state government to be
carried in accordance with the provisions of the constitution. Political parties, group of
persons or individuals should not mix religion with politics. Religious tolerance and fraternity
are basic features and postulates of the Constitution as a scheme for national integration and
sectional or religious unity.

Programmes or principles evolved by political parties based on religion amounts to


recognising religion as a part of the political governance which the Constitution expressly
prohibited. It violates the basic features of the Constitution. Positive secularism negates such
a policy and any action in furtherance thereof would be violative of the basic features of the
Constitution. When the President receives a report from a Governor or otherwise had such
information that the Government of the State is not being carried on in accordance with the
provisions of the Constitution, the President is entitled to consider such report and reach his
satisfaction in accordance with law.13

10
Moot proposition
11
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
12
Moot proposition
13
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1; S. Veerabadran Chettiar v. E.V. Ramaswami Naicker,
1959 S.C.R. 1211; S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 S.C.C. 370.

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3. THERE WAS A FAILURE OF CONSTITUTIONAL MACHINERY


It is humbly submitted under the steady gaze of the court that there was a failure in
constitutional machinery in Uttar Pradesh. It is expressed in article 35614 that if the President,
on receipt of a report from the Governor of a State or something else, is satisfied that a
circumstance has emerged in which the Government of the State can't be carried on as per the
arrangements of this Constitution he can accept every one of the elements of the
administration of the state. In the present case the administration has not possessed the
capacity to keep up lawfulness in Uttar Pradesh because of which a great deal of misfortune
has jumped out at state and its kin. It was seen in State of Rajasthan v Union of India15 that a
flare-up of extraordinary viciousness which the Government can't check might be thought for
exercise of forces under Article 356 of the Constitution.

Further, it was repeated in Sundarlal Patwa v Union of India16 in a minority choice a flare-up
of extraordinary brutality which the Government can't control might be a thought. An
incredible characteristic cataclysm like an extreme tremor or a surge making a circumstance
which the Government of a State can't meet might be a thought. In every one of these cases
there might be such a failure of the Government of the State as to add up to a surrender of its
Governmental power." Further he was of the view that that the satisfaction of the President
on account of breakdown of law and order because of uncommon viciousness must be held to
be indisputable. As needs be, it isn't available to legal examination.

It is unassumingly submitted before the respectable court that it was obligation on part of
Centre to force crisis with a specific end goal to counter the breakdown of protected
apparatus. It was held In Re A Shree Ramalu17 that, Article 355 throws an obligation on the
Union Government to secure each State against inside unsettling influence and to guarantee
that the Government of each State is carried on as per the arrangements of the Constitution.
However, in a given circumstance, the President may go to the view that isn't sufficient to
spare the circumstance yet, activity under Article 356 is important. There is nothing to restrict
the President from continuing to act under Article 356 in instances of inner unsettling
influence. Which was additionally emphasized in SR Bommai v Union of India18. According
to Justices Sawant and Kuldip Singh situations contemplated by Article 356 must be such

14
Constitution of India, 1950, art 356.
15
State of Rajasthan v Union of India A.I.R. 1977 S.C. 1361.
16
SundarlalPatwa v Union of India, A.I.R. 1993 M.P. 214.
17
In Re Shree Ramalu, A.I.R. 1974 AP 106.
18
S.R.Bommai v Union of India, (1994) 3 S.C.C. 1.

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where the governance of the State is not possible to be carried on in accordance with the
provisions of the Constitution. The word "cannot" emphatically connotes a situation of
impasse.19 Accordingly situations which can be remedied or do not create an impasse, or do
not disable or interfere with the governance of the State according to the Constitution would
not merit the issuance of a Presidential proclamation under the Article.20 In reaching the
above conclusion reference was made to the observations in the judgment of the Supreme
Court of Pakistan in Ahmad Tariq Rahim v. Federation of Pakistan21 that the power conferred
by Article 58(2)(b) of the Pakistan Constitution, which is analogous to Article 356, "is an
extreme power to be exercised where there is actual or imminent breakdown of the
constitutional machinery, as distinguished from a failure to observe a particular provision of
the Constitution".

The reasoning and conclusion of Justices Jeevan Reddy and Agrawal on this aspect are
similar: "... it is not each and every non-compliance with a particular provision of the
Constitution that calls for the exercise of the power under Article 356(1). The non-
compliance or violation of the Constitution should be such as to lead to or give rise to a
situation where the government of the State cannot be carried on in accordance with the
provisions of the Constitution".

Under Article 355 it is the obligation of the Union to guarantee that the Government of each
State is carried on as per the arrangements of the Constitution. Article 356, then again, gives
the cure when there has been a real separate of the sacred apparatus of the State. Any
manhandle or abuse of this radical power harms the texture of the Constitution, though the
question of this Article is to empower the Union to make medicinal move ensuing upon
separate of the constitutional apparatus, so that administration of the State as per the
arrangements of the Constitution, is re-established.

4. THAT PRESIDENT CAN IMPOSE STATE EMERGENCY


It is humbly submitted before the Supreme Court of India that the state emergency can be
imposed under Article 356 of the Indian Constitution because the president of india is
satisfied with the governors report on the incident. Article 356 of India Constitution says that
the emergency (due to failure of constitutional machinery) in a State can be proclaimed if the
President of India is satisfied with the report of a Governor or otherwise, or on his own
19
S.R.Bommai v Union of India, (1994) 3 S.C.C. 1.
20
R.C. Cooper v. Union of India, (1970) 1 S.C.C. 248 at 277.
21
R.C. Cooper v. Union of India, (1970) 1 S.C.C. 248 at 277.

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initiative that a situation has arisen in which that State Government cannot be carried on in
accordance with the provisions of the Constitution. The Hon’ble Supreme Court in S.R.
Bommai v. Union of India22 held that “the power conferred by Article 356 upon the President
is a conditioned power. It is not an absolute power. This satisfaction may be formed on the
basis of the report of the Governor or on the basis of other information received by him or
both. The existence of relevant material is a pre-condition to the formation of satisfaction”.
The satisfaction must be formed on relevant material. The dissolution of the Legislative
Assembly-assuming that it is permissible is not a matter of course. It should be resorted to
only when it is necessary for achieving the purposes of the proclamation. It was held in Han
v. F. N. Rana and Others23 that the “power to declare failure of the Constitutional machinery
in States under Art. 356 vested in the President by the Constitution and are incapable of being
delegated or entrusted to any other body or authority under Art. 258(1)”. It was supremely
held in Padfield v. Minister of Agriculture, Fisheries and Food24 that Art. 356 which was
introduced by the 38th- Amendment, making the satisfaction of the President final and
conclusive, not open to be questioned in any court, on any ground.

The only limit on the Power of the President under Art. 356, cl. (1) is that the President
should be satisfied that a situation has arisen where the Government of the State cannot be
carried on in accordance with the provisions of the Constitution. The satisfaction of the
President is a subjective one and, cannot be tested by reference to any objective tests. It is
deliberately and advisedly subjective because the matter in respect to which he is to be
satisfied is of such a nature that its decision must necessarily be left to the executive branch
of Government. There may be a wide range of situations which may arise and their political
implications and consequences may have to be evaluated in order to decide whether the
situation is such that the Government of the State cannot be carried on in accordance with the
provisions of the Constitution. This interpretation was given by Hon’ble Supreme court in
State of Rajasthan & Ors. Etc. v Union of India Etc. 25

So the incident report presented by the LIU and IB report clearly showed that there was lack
of action on the part of Police and especially inaction of SSP caused this violence to happen.
And on the recommendation of the same report presented by the governor to the president, he
was satisfied that State Government cannot be carried on in accordance with the provisions of

22
S.R Bommai v Union of India; 1994(3) S.C.C. 1.
23
Han v. F. N. Rana and Others
24
Padfield v. Minister of Agriculture, Fisheries and Food ; [1968] A.C. 997.
25
State of Rajasthan & Ors v. Union Of India Etc ; 1978 S.C.R. (1) 1.

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the Constitution and therefore emergency can be imposed by him under Article 356 of Indian
Constitution.

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PRAYER

In the light of arguments advanced and authorities cited, the Appellants humbly submit
that the Hon’ble Court may be pleased to adjudge and declare:

That the President’s order to impose emergency under Article 356 was
constitutional and as per the provisions laid down by the Constitution.

Or any other order as it deems fit in the interest of equity, justice and good
conscience.

Sd/-

(Counsels for the Respondents)

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