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MEMORANDUM ON BEHALF OF APPELLANTS

1

4THANNUAL

NALSAR-JUSTICE BODH RAJ SAWHNYMEMORIAL

MOOT COURT COMPETITION

NALSAR,HYDERABAD

IN THE

HONBLE

SUPREME COURT OF INDIA

CASES CONCERNING

ARTICLE74 ANDARTICLE61 OF THECONSTITUTION OFINDIA

Civil Appeal No. 244 of 2022(Arising out of SLP (Civ.) No. 3033 of 2022)

With Special Reference No. 1 of 2022

LENIN BUDDI AND ORS.Vs

STATE OF KARNATAKA ANDANR.

WITH

IN RE: IMPEACHMENT OF PRESIDENT UNDERARTICLE 61MEMORANDUM ON BEHALF OF THEAPPELLANTS

(LENIN BUDDI AND ORS.)

AND

UNION OF INDIA

TEAM:


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TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................................................... 4

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

STATUTES ............................................................................................................................... 5

TABLE OF CASES ................................................................................................................... 5

BOOKS .................................................................................................................................... 7

DICTIONARIES ........................................................................................................................ 7

STATEMENT OF JURISDICTION ......................................................................................................... 9

STATEMENT OF FACTS..................................................................................................................... 10

STATEMENT OF ISSUES...................................................................................................................... 12

SUMMARY OF ARGUMENTS ............................................................................................................. 13

ARGUMENTSADVANCED ................................................................................................................. 14

THE APPEAL UNDERARTICLE 136 IS MAINTAINABLE ............................................................... 14

1. Power Under Article 136 is discretionary ...................................................... 14

2. The High Court erred in its judgment by not providing a speaking order.. 14

A.THE SANCTION TO PROSECUTE BUDDI BROTHERS ACCORDED BY THE PRESIDENT OF

INDIA IS IN VIOLATION OFARTICLE 74(1) OF THE CONSTITUTION OF INDIA,1950

..................................................................................................................................................16

A.I.The aid and advise of the Council of Ministers was required in the instant case . 16

A.I.1.Buddi Brothers fall within the purview of public servants ............................. 17

A.I.2.Grant of Sanction is an executive function of the President........................... 18

A.I.3.In carrying out any executive function of the President, aid and advise of

Council of Ministers is fundamental................................................................... 19

A.II. The President is bound by the aid and advise provided by the Council of

Ministers ......................................................................................................................... 20

A.II.1Shall is a mandatory clause ........................................................................ 21

A.II.2. The Presidents discretion in the instant case is unconstitutional ........... 22


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B. THE PROCESS OF IMPEACHMENT CAN BY INITIATED AGAINSTTHE PRESIDENT

UNDER ARTICLE 61 ON GROUNDS OF CORRUPTION ..................................................... 24

B.I. Reliance to be made on the purpose and object of an enactment of Article

56 (1) (b).................................................................................................................. 25

B.I.1 Mischief Rule to be applied in the instant case ......................................... 25

B.I.2.Constitutent Assemblys point of view for insertion is fundamental in the

present case ..................................................................................................... 26

B.II.The President has broken the Law under Prevention of Corruption Act,

1988 ....................................................................................................................... 27

B.II.1. The President of India is a Public Servant under the Prevention of

Corruption Act, 1988................................................................................... 28

B.II.2. The President has violated the provisions of Prevention of Corruption

Act, 1988 ....................................................................................................... 29

B.III. An Act of Corruption is in direct violation of Constitution of India,

1950....................................................................................................................31

B.III.1. The President has violated Article 60 of the Constitution of

India,1950. ................................................................................................. 31

B.III.1.1 Purpose and Importance of Oath .............................................. 32

B.III.1.2. Corruption amounts to violation of Oath ................................ 32

PRAYER............................................................................................................................................... 34


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INDEX OF AUTHORITIES

LIST OF ABBREVIATIONS

-- Section

-- Paragraph

A.I.R. -- All India Reporter

Anr. -- Another

Art. -- Article

CAD -- Constitutional Assembly Debates

CBI -- Central Bureau of Investigation

Co. -- Company

Ed. -- Edition

Et. Al. -- and others/ and elsewhere

etc. -- Etcetera

Id. -- Ibid

Inc. -- Inclusive

IPC -- Indian Penal Code, 1860

Jour -- Journal

KarLJ -- Karnataka Law Journal

Ltd. -- Limited

O.U.P. -- Oxford University Press

Ors. -- Others

p. -- page

POCA -- Prevention of Corruption Act, 1988

Pvt. -- Private

Re. -- Reference

Rep. -- Report

S.C. -- Supreme Court

S.C.C. -- Supreme Court Cases

S.C.R. -- Supreme Court Reports

SIT -- Special Investigating Team

U.O.I. -- Union of IndiaUP -- Uttar Pradesh


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Vol. -- Volume

LIST OF STATUTES AND RULES REFERRED

1. THE CONSTITUTION OF INDIA 1950

2. CODE OF CIVIL PROCEDURE,1908

3. CODE OF CRIMINAL PROCEDURE,1973

4. INDIAN PENAL CODE,1860

5. PREVENTION OF CORRUPTION ACT,1988

6. SUPREME COURT RULES,1966

TABLE OF CASES

1. Anderton v. Ryan (1985) 2 All ER 355.

2. Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing,

Kota v. Shukla and Brothers, 2010 (4) KarLJ 256

3. B.P.Singhal v. Union of India (2010) 6 SCC 33

4. B.R. Sutaria v. N.P. Bhanvadia Air 1970 SC765

5. CIT, M.P. and Bhopal v. Sodhra Devi AIR 1957 SC 832

6. Govindlal Chagganlal Patel v. Agriculture Produce Market Committee AIR 1976 SC

263,

7. Heydons Case (1584) 3 Co.Rep.7a, p. 7b

8. Hindustan Times Ltd. v. Union of India and Ors. (1998) 2 SCC 242

9. Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907,

10.Kapurchand Kesarimal Jain v. State of Maharashtra (1973) 3 SCC 299


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11.Kehar Singh v. Union of India AIR 1989 SC 653;

12.Lalu Prasad and Anr. v. State of Bihar and Anr. AIR 2010 SC 1561

13.M. Karunanidhi v. Union of India AIR 1979 SC 598

14.M. Krishna Reddy v. State, Deputy Suprintendent of Police, Hyderabad AIR 1993 SC

313

15. M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Their Workmen AIR 1959

SC 633

16.Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy (2005) 1 SCC 481

17.Maru Ram v. Union of India AIR 1980 SC 2141.

18.Master Construction (P) Ltd. v. State of Orissa and anr. AIR 1966 SC 1047

19.Mathai v. George and Anr. (2010) 4 SCC 358

20.Om Prakash Sood v. Union of India (2003) 7 SCC 473

21.P.V. Narsimha Rao v. State (CBI/SPE) AIR 1998 SC 2120

22.Pritam Singh v. The State AIR 1950 SC 169

23.R.S.Nayak v. A.R.Antulay AIR 1984 SC 684

24.Rai Sahib Ram Javaya Kapur and Ors. v. The State of Punjab AIR 1955 SC 549

25.Ramakant Rai v. Madan Rai and Ors. AIR 2004 SC 77

26.Rameshwar Prasad and Ors. V. Union of India and Anr. AIR 2006 SC 980.

27.S.P.Anand v. H.D.Devegowda AIR 1987 SC 272

28.S.P.Gupta v. Union of India AIR 1982 SC 304

29.S.R. Bommai and others v. Union of India and others AIR 1994 SC 1918

30.Sainik Motors v. State of Rajasthan AIR 1961SC 1480

31.Sakharam v. State of Maharastra (1969) 3 SCC 730

32.Samsher Singh v. State of Punjab and Anr AIR 1974 SC 2192

33.State of Madhya Pradesh v. Dr. Yashwant Trimbak AIR 1996 SC 765


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34.State of U.P. v. Baburam Upadhya AIR 1961 SC 751 p.15,

35.State of U.P. v. Manbodhan Lal Srivastav AIR 1957 SC 912,

36.Supreme Court Advocates on Record Association and Anr. v. Union of India AIR

1994 SC 262.

37.U.N.R. Rao v. Indira Gandhi AIR 1971 SC 1002

BOOKS REFERRED

HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, VOLUME 2,4TH

ED., UNIVERSAL LAW

PUBLISHING COMPANY PVT.LTD.(1993)

HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, VOLUME 3,4TH

ED., UNIVERSAL LAW

PUBLISHING COMPANY PVT.LTD.(1996)

M.P.JAIN,INDIAN CONSTITUTIONAL LAW,6TH

ED.,LEXISNEXIS BUTTERWORTHS

WADHAWANAGPUR,(2010)

D.D.BASU,SHORTERCONSTITUTION OF INDIA,VOLUME 1,14TH

ED.,LEXISNEXIS

BUTTERWORTHS

WADHWA

NAGPUR

,(2009)

D.D.BASU,SHORTERCONSTITUTION OF INDIA,VOLUME 2,14TH

ED.,LEXISNEXIS

BUTTERWORTHS WADHWANAGPUR,(2009)

A.P.DATAR,COMMENTARY ON THE CONSTITUTION OF INDIA,VOLUME 1,2ND

ED.,

WADHWA AND COMPANYNAGPUR,(2007)

V.N.SHUKLA,CONSTITUTION OF INDIA,11TH

ED.,EASTERN BOOKCOMPANY,(2008)

T.K.TOPE,CONSTITUTIONAL LAW OF INDIA,3RD

ED.,EASTERN BOOKCOMPANY,(2010)

J.SWARUP,CONSTITUTION OF INDIA,2ND

ED.,VOLUME 2,MODERN LAW PUBLICATIONS,

(2006)

G.AUSTIN,WORKING OF A DEMOCRATIC CONSTITUTION,1ST

ED.,OXFORD UNIVERISTY

PRESS,(1999)

G.P.SINGH,PRINICIPLES OF STATUTORY INTERPRETATION,11TH

ED.,WADHWA AND

COMPANYNAGPUR,(2008)


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DICTIONARIES

BRYAN A.GARNER,BLACKS LAW DICTIONARY,7TH

ED.,WEST GROUP,(2002)

D.GREENBERG AND ALEXANDRA MILLBROOK,STROUDS JUDICIAL DICTIONARY OF WORDS

AND PHRASES,VOLUME 2,6TH

ED.,SWEET AND MAXWELL,(2000)

P.R.AIYAR,THE LAW LEXICON,2ND

ED.,WADHWA AND COMPANYNAGPUR,(1997)

WEBSTERSNEW ENCYCLOPEDIC DICTIONARY,BLACK DOG AND LEVENTHAL PUBLISHERS,

(1993)


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STATEMENT OFJURISDICTION

Issue 1 and Issue 2- The appellants approach the Honorable Supreme Court of India under

Art.136 (1) of the Constitution of India, 1950.

Issue 3 (InReference) - The President of India has approached for advice of this Honorable

Supreme Court of India under Art.143 (1) of the Constitution of India, 1950.


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STATEMENT OF FACTS

The Congress [F] suffered heavy losses in the southern states in the 2020 general

elections. Thus they entered into alliances with regional parties in the South, so as to

muster a coalition government at the Centre. A Cabinet headed by Shri Babul Gandhi

was sworn in and two key portfolios of the Cabinet were given to Shri Lenin Buddi

and Shri Marx Buddi, brothers from the South.

Shri M.M. Jiri, a fierce rival of the Buddi brothers and two times Chief Minister of

Karnataka, was elected to the office of the President of India in 2021.

In 2022 allegations of corruption were made against the Buddi Brothers pursuant to

which the Chief Minister of Karnataka, Shri R.S Gowda ordered an urgent

investigation into the allegations. In August 2022, the Special Investigation Team of

the Karnataka Police submitted its report and sought prosecution of the Buddi

brothers under the Prevention of Corruption Act, 1988 and related provisions of the

Indian Penal Code, 1860. Meanwhile, the Union Cabinet, in its meeting dated

21.08.2022, after going through the report of the Special Investigation Team and all

other relevant documents unanimously decided to recommend to the President that no

such sanction be accorded. However, the President accorded the sanction after

consulting eminent lawyers and constitutional experts.

On 30.08.2022, the Union Cabinet acting on a report submitted by a Special Team of

the Central Bureau of Investigation released a communiqu that the President was

found to have accumulated enormous amount of illegal wealth, in the Cayman

Islands. Thereafter, led by the ruling coalition, impeachment proceedings were

initiated against the President.


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The High Court of Delhi meanwhile dismissed writ petitions filed by the Buddi

brothers seeking to quash the sanction accorded by the President as being contrary to

Art. 74 of the Constitution and also on the ground no prima facie case was made out

for prosecution. The petition was dismissed in limine by a non-speaking order. On a

special leave petition being preferred by the Buddi brothers, the Supreme Court of

India granted leave. Special Leave Petition filed by the Buddi brothers, was converted

into Civil Appeal. This Honble Court has listed the above Civil Appeal for final

arguments along with Presidential Reference under Art. 143 of the Constitution.


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STATEMENT OF ISSUES

I. Whether the appeal by the Buddi Brothers is maintainable under Art. 136 of theConstitution of India, 1950?

II. Whether the sanction accorded to Buddi Brothers by the President is in violation ofArt. 74 of the Constitution of India, 1950?

III. In Reference: Whether under Art. 61 of the Constitution of India, proceedings forimpeachment of the President could be initiated on grounds of corruption?


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SUMMARY OF ARGUMENTS

A. THE APPEAL BY THE BUDDI BROTHERS IS MAINTAINABLE UNDERARTICLE 136.

The Buddi Brothers had filed a writ petition in the Delhi High Court which was dismissed in

limine by a non-speaking order. The High Court did not give reasons for such dismissal and

also did not grant a certificate to them for appeal. Therefore, the appeal preferred by Buddi

Brothers is maintainable under Art.136 (1) of the Constitution of India, 1950.

B.THE SANCTION ACCORDED TO BUDDI BROTHERS BY THE PRESIDENT IS IN VIOLATION OF

ARTICLE 74 OF THE CONSTITUTION.

The Buddi Brothers were accorded sanction by the President on 23.08.2022. By virtue of

Art.74 (1) the President is bound by the aid and advice of the Council of Ministers. Every

executive action must be in accordance and consultation with the opinion of the Cabinet. The

cabinet had refused to accord the sanction to the Buddi Brothers but the President acting

contrary to it has violated Art. 74.

C. INREFFERENCE: IMPEACHMENT PROCEEDINGS COULD BE INITIATED AGAINST THE

PRESIDENT UNDERARTICLE 61 OF THE CONSTITUTION.

The President of India can be impeached for violation of the Constitution under Art. 61. An

act of corruption by the President amounts to violation of the Constitution. The President

swears to protect, preserve and defend the Constitution and law and by committing an

offence of corruption he violates both the Constitution as well as the law of the nation. Also,

the Constitutional Assembly Debates imply for impeachment of the President for act of

corruption.


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ARGUMENTS ADVANCED

THE APPEAL BY THE BUDDI BROTHERS UNDER ART.136 IS

MAINTAINABLE.

1.POWER UNDERART.136 IS DISCRETIONARY.

It is a well established principle that even though the Supreme Court may grant special leave

to appeal, the discretionary power vesting in the Court at that stage continues to remain with

the Court even at the time of hearing the appeal on merits.1 Art. 136 of the Constitution of

India confers a discretionary appellate jurisdiction on the Supreme Court against any order

passed by any tribunal in the territory of India.2 This Article confers on the Supreme Court

special or residuary powers which are exercisable outside the purview of the ordinary law in

cases where the needs of justice demand interference by the Supreme Court.3 It is residuary

power; it is extra-ordinary in its amplitude, its limits, when it chases injustice, is the sky

itself.4

2.THE HIGH COURT ERRED IN ITS JUDGMENT BY NOT PROVIDING A SPEAKING ORDER

The Delhi High Court in the present case dismissed the writ petition in limine by a non-

speaking order.5 When a person has been dealt with arbitrarily, which is the case in the

present case, the Court has to allow the appeal under Art.136.6 InMathai v. George and Anr.7,

1Pritam Singh v. The State AIR 1950 SC 169 ; M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Their

Workmen AIR 1959 SC 633.

2Master Construction (P) Ltd. v. State of Orissa and anr. AIR 1966 SC 1047.

3Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy (2005) 1 SCC 481.

4Ramakant Rai v. Madan Rai and Ors. AIR 2004 SC 77.

5Moot Proposition 4.

6

Om Prakash Sood v. Union of India (2003) 7 SCC 473.7

(2010) 4 SCC 358.


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the Supreme Court observed that a case shall be entertained by the Court under Art. 136 if a

grave miscarriage of justice has been done. Further, the Court cannot reject the case which

involves a matter of national or public importance. The present case involves sanction given

to the Council of Ministers by the President which is a matter of public importance. Also, the

High Court gave a non-speaking order without giving justification for the same.

If the High Court has stated its reasons in a particular case which was dismissed in limine, the

Supreme Court might not perhaps grant special leave under Art.136.8 This Apex Court has

observed that an appeal has to be allowed under Art.136 where an appeal in the High Court

raised substantial and arguable questions of fact and law as it was not proper for the High

Court to dismiss it in limine without indicating its reasons for the dismissal.9 Even when

the petition under Art.226 is dismissed in limine, it is expected of the High Court to pass a

speaking order.10In the present case, the order given by the High Court dismissed the petition

in limine by a non-speaking order11 without giving reasons to the appellants for such

dismissal. The principle of natural justice has an ingredient; the orders so passed by

the authorities should give reason for arriving at any conclusion showing proper application

of mind.12 The High Court in the present case has thus violated the principles of natural

justice and should have stated reasons for the dismissal in the instant matter.

8Sakharam v. State of Maharastra, (1969) 3 SCC 730.

9Kapurchand Kesarimal Jain v. State of Maharashtra (1973) 3 SCC 299.

10Hindustan Times Ltd. v. Union of India and Ors. (1998) 2 SCC 242.


12

Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and

Brothers, 2010 (4) KarLJ 256.


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A. THE SANCTION TO PROSECUTE BUDDI BROTHERS ACCORDED BY THE

PRESIDENT OF INDIA IS IN VIOLATION OF ART.74 OF THE CONSTITUTION

OF INDIA,1950.

Art. 74(1) expressly provides for the Council of Ministers with the Prime Minister at the head

to aid and advice the President in the exercise of his functions.13 The President is only a

constitutional head and acts on the aid and advice of the Council of Ministers. 14 The place of

the President in the administration is that of a ceremonial device on a seal by which the

nations decisions are made known15. The President can do nothing contrary to the advice of

the Council of Ministers nor can he do anything without their advice.16

A.I. THE AID AND ADVICE OF THE COUNCIL OF MINISTERS WAS REQUIRED IN THE INSTANT

CASE

Pursuant to the allegation laid upon the Buddi brothers the Special Investigation Team of the

Karnataka police submitted its report and sought sanction for prosecution of the Buddi

brothers under the Prevention of Corruption Act, 1988 and related provisions of the Indian

Penal Code, 1860.17 In the instant fact situation the sanction of the President was sought for

prosecution of two Union Ministers under 197 of the Code of Criminal Procedure18 19(1)

(a) of the Prevention of Corruption Act, 198819. The term public servants has been used in the

language of this section with regard to the officials for whos prosecution the sanction shall

be accorded by the Central Government.20

We require to first prove that Buddi brothers can

13H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 2040, (4

thed. 1991, Vol. 2).

14M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 154, (6

thed. 2010).

15VII CONSTITUENT ASSEMBLY DEBATES 32.

16Id.


18Code of Criminal Procedure, 1973, 197.

19

The Prevention of Corruption Act, 1988, 19(1) (a).20

Id.


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be regarded as Public Servants as per the Prevention of Corruption Act and the Indian Penal

Code, 1860.

A.I.1.BUDDI BROTHERS FALL WITHIN THE PURVIEW OF THE DEFINITION

OF PUBLIC SERVANTS

Public Servants under the Prevention of Corruption Act, 1988 means any person in the

service or pay of the Government or remunerated by the Government by fees or commission

for the performance of any public duty.21 The Indian Penal Code, 1860 also specifies the

definition of public servants as every person in the service of the Government or remunerated

by fees or commission for the performance of any public duty by the government is a public

servant.22

When we refer to the provisions of the Constitution the appointment of the Prime Minister

and the Council of Ministers is made by the President of India. 23 The salary is paid to them

from the Government funds.24 The above legal provisions point out the fact that a Minister is

a Public Servant within the meaning of 2(i) (c) of Prevention of Corruption Act, 1988

21(12) of the Indian Penal Code, 1860.

InM. Karunanidhi v.Union of India25 the question arose as to whether the Chief Minister of a

State would fall within the scope of a public servant, it was held by the Supreme Court that

Chief Minister would fall within the definition, under 21(12) of the Indian Penal Code, 1860,

of Public Servants.26

Also in R.S.Nayak v. A.R.Antulay27

the same principle was upheld.28

In P.V.

21The Prevention of Corruption Act, 1988, 2(c) (i).

22The Indian Penal Code, 1860, 21(12).

23THE CONSTITUTION OF INDIA, 1950, Art. 75(1) .

24Id., Art. 75(6).

25AIR 1979 SC 898.

26M.Karunanidhi v.Union of India AIR 1979 SC 898 61.

27

AIR 1984 SC 684.28

R.S.Nayak v. A.R.Antulay AIR 1984 SC 684 3.


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Narsimha Rao v. State (CBI/SPE)29the Supreme Court observed that in order to prove that a

Member of Parliament is a public servant not only must the person hold an office but he must

be authorised or required by virtue of that office to perform a public duty.30

Under the Constitution of India, 1950 for any Union Minister it is a pre-requisite for him/her

to be a Member of Parliament.31 Thus we may conclude that Buddi Brothers are Public

Servants within the definitions provided in the Indian Penal Code, 1860 and the Prevention of

Corruption Act, 1988.

A.I.2 GRANT OF SANCTION IS AN EXECUTIVE FUNCTION OF THEPRESIDENT

InRai Sahib Ram Javaya Kapur and Ors. v. The State of Punjab32it was aforementioned that

it may not be possible to frame an exhaustive definition of what executive function means

and implies. Ordinarily the executive power connotes the residue of governmental functions

that remain after legislative and judicial functions are taken away. The power to sanction is

nothing but an executive action of the Government.33 This is not a matter with respect to

which the Governor is required under the Constitution to act in his discretion. 34 In Samsher

Singh v. State of Punjab and Anr.35 the court observed that the executive power of the union

is vested in the President under Art. 53(1) of the Constitution of India, 1950. Similarly the

executive powers of the state are vested in the Governor under Art. 154(1) of the Constitution

of India, 1950. Any action taken in the executive powers of the union vested in the President

is taken by the government of India in the name of the President36 similarly any action taken

29AIR 1998 SC 2120.

30P.V. Narsimha Rao v. State (CBI/SPE)AIR 1998 SC 2120 62.

31THE CONSTITUTION OF INDIA,1950, Art.75(5).

32AIR 1955 SC 549 14.

33State of Madhya Pradesh v. Dr. Yashwant Trimbak, AIR 1996 SC 765 19.

34Id.

35

AIR 1974 SC 2192 25.36

THE CONSTITUTION OF INDIA, 1950, Art. 77(1).


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in the exercise of the executive powers of the state vested in the Governor is taken by the

Government of the state in the name of the Governor. 37 After considering the above-

mentioned cases we can infer that the grant of sanction by the President in the instant is an

executive function of the President for which he requires the aid and advice of the Council of

Ministers.

A.I.3.IN CARRYING OUT ANY EXECUTIVE FUNCTION OF THEPRESIDENT, AID

AND ADVICE OF THECOUNCIL OF MINISTERS IS FUNDAMENTAL

The Council of Ministers provides aid and advice to the president for the purpose of

discharging executive functions.38 The president acts on the aid and advice of the council of

ministers and exercises his functions in accordance with such advice as contemplated under

article 74(1).39 A notable principle underlying the working of parliamentary Government is

the principle of Collective Responsibility which represents Ministerial accountability to the

legislature.40 Art. 75(3) states that the Council of Ministers shall be collectively responsible

to the Lok Sabha.41 It is a fundamental principle of English Constitutional Law that all

Ministers must accept responsibility for every executive act.42 The Sovereign never acts on

his own responsibility. The power of the Sovereign is conditioned by the practical rule that

the Crown must find advisers to bear responsibility for their action.43 Those advisers must

have the confidence of the House of Commons. This rule of English Constitutional Law is

incorporated in our Indian Constitution and the Indian Constitution does not envisage a

Presidential form of Government.44 In U.N.R. Rao v. Indira Gandhi the Supreme Court

37THE CONSTITUTION OF INDIA, 1950, Art. 166 (1).

38Rameshwar Prasad and Ors. V. Union of India and Anr. AIR 2006 SC 980 94.

39Supreme Court Advocates on Record Association and Anr. v. Union of India AIR 1994 SC 268 296.

40Supra Note 14, 164.

41THE CONSTITUTION OF INDIA, 1950, Art. 75(3).

42Samsher Singh v. State of Punjab and Anr. AIR 1974 SC 2198 32.

43

Id.44

Supra Note 42 35.


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emphasised that the conventions operating in Britain governing the relationships between the

Crown and the Minister are very pertinent to the Indian Constitution, and the formal

provisions of the Indian Constitution should be read in the light of those conventions.45 In

case of the policy decisions of the Government, the Council of Ministers are answerable to

the Parliament according to Art. 75(3).46 There is no provision in the Constitution which

makes the President responsible to Parliament for the acts of the Government. Hence it will

be anomalous to hold that the Ministers are answerable for the acts and policies of the

Government in the making of which their advice was not required.47 Thus we can logically

deduce from the above arguments that in the instant case the aid and advice of the Council of

Ministers was essential for the president to grant the sanction for the prosecution.

A.II. THE PRESIDENT IS BOUND BY THE AID AND ADVICE PROVIDED BY THE COUNCIL OF

MINISTERS

The President is merely a nominal figure head. He represents the nation but does not rule the

nation.48 The President cannot exercise his powers and function on his own. 49 InB.P. Singhal

v. Union of India,50 the Supreme Court of India the court held that the President of India

under Art.74 is bound by the aid and advice given by the Council of Ministers. In United

Kingdom, the queen is bound to exercise her legal powers in accordance with the advice

tendered to her by the cabinet.51 Art. 74(1)52, as interpreted in Samsher Singhs v. State of

45AIR 1971 SC 1002 3.

46ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, 668, 2

nded. 2007.

47M.P. SINGH, V.N.SHUKLAS CONSTITUTION OF INDIA, 392 (11

thed. 2008).

48DR.AMBEDKAR, IVTH CONSTITUENT ASSEMBLY DEBATES, 1036.

49Kehar Singh v. Union of India AIR 1989 SC 653; Maru Ram v. Union of India AIR 1980 SC 2141.

50(2010) 6 SCC 33 49.

51

HOOD PHILLIPS, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 115 (6th

ed.).52

THE CONSTITUTION OF INDIA, 1950, Art. 74 (1).


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Punjab and Anr.53, and as amended in 197654 makes the same provision.55 The following sub-

sub-contentions will clarify as to how the President is bound:

A.II.1SHALL IS A MANDATORYCLAUSE

In 1976 by the Constitution (42nd Amendment) Act, 1976 Art.74(1) was amended so as to

state explicitly that the President shall act in accordance with the advice of the Ministers in

the exercise of his functions.56 Art. 74 (1) is mandatory in form and in a given context the

word shall appearing in the said clause has to be interpreted only as meaning shall and

not may.57 The use of word shall raises a presumption that the particular provision is

imperative.58 The Constituent Assembly did not choose the Presidential form of Government

and construing shall as may would change the whole concept of the Executive as it

would mean that the president need not have a Prime-Minister and Ministers to aid and

advice him in the exercise of his functions.59

The President cannot exercise the executive power without the aid and advice of the Council

of Ministers and any exercise of executive power not in accordance with the Constitution will

be liable to be set aside.60 Further, the President has to act in accordance with the aid and

advice of the Council of Ministers as a body and not go by the advice of any single

individual.61 The insertion of the proviso62 seems to have been inspired by the observation63

53Supra Note 35.

54The Constitution (42

ndAmendment) Act, 1976.


56Supra Note 14, 150


58Govindlal Chagganlal Patel v. Agriculture Produce Market Committee AIR 1976 SC 263 p.5, State of U.P. v.

Manbodhan Lal Srivastav AIR 1957 SC 912 p.6, State of U.P. v. Baburam Upadhya AIR 1961 SC 751 p.15,

Sainik Motors v. State of Rajasthan AIR 1961SC 1480, p.6.

59DR.B.R. AMBEDKAR, CONSTITUENT ASSEMBLY DEBATES VII, p.724.

60

Supra Note 42.61

S.P.Anand v. H.D.Devegowda AIR 1997 SC 272 16.


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22

of Iyer, J. in Samsher Singhs v. State of Punjab and Anr.64 pointed towards the fact the

President is by convention reduced to a mere figure-head while the ministry is the real

Executive. The proviso65 would save the President from being impeached for refusing to act

according to the advice of the Council of Ministers in the first instance. But if he refuses to

act according to the reconsidered advice of the Council of Ministers or acts contrary to it, or

acts contrary to their advice without sending the matter back for their reconsideration, he

shall render himself liable to impeachment.66Hence the Presidents current position is that he

has to act on Ministerial advice.67 The only right the President has is to ask the Council of

Ministers to reconsider their advice.68 But the President is bound by the advice given

thereafter; he must act in accordance with this advice.69 Thus in the instant case the advice

provided by the Council of Ministers was binding upon the President.

A.II.2 THE PRESIDENTS DISCRETION IN THE INSTANT CASE IS

UNCONSTITUTIONAL

The 42nd Amendment70 of the Constitution of India made the President a Rubber Stamp.71

The amendment made it obligatory for the President to act in accordance with the aid and

advice of the Council of Ministers.72 In Samsher Singh v. State of Punjab and Anr.73 the

Supreme Court stated that it was not correct to say that the President is to be satisfied

62The Constitution (44

thAmendment ) Act,1978, Proviso.

63Samsher Singh v. State of Punjab and Anr. AIR 1974 SC 2198 118.

64AIR 1974 SC 2198.

65Supra Note 61.

66D.D. BASU, SHORTER CONSTITUTION OF INDIA, 694 (14

thed. 2009).

67Supra Note 45, p.661.

68Supra Note, 61.


70Supra Note 35.

71T.K. TOPE, CONSTITUTIONAL LAW OF INDIA, 504 (3

rded. 2010).

72

Supra Note 13, 2046.73

AIR 1974 SC 2198.


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personally in exercising the executive power. The President is only a formal or a

constitutional head who exercises the Power and functions conferred on him by or under the

Constitution on the aid and advice of his Council of Ministers. Whenever the Constitution

requires the satisfaction of the President for the exercise by him of any power or function it is

not his personal satisfaction, but, in the Constitutional sense, the satisfaction of the Council of

Ministers.74 There are a few exceptional cases where the President need not take the aid and

advice of the Council of Ministers. The exceptions to Article 74(1) were laid down in

Samsher Singh v. State of Punjab and Anr. :

Choice of the Prime MinisterUnder Art. 75(1)75 the President appoints the Prime

Minister of India. In such a case the President does not require the aid and advice of

the Council of Ministers.76 The selection and appointment of a new Prime-Minister,

in such a contingency, the Crown cannot act according to the advice of any Prime-

Minister.77

Dismissal of Governmentthe Government which has lost the majority in the house

and refuses to quit office in that case the President can use his discretion.78

Apart from the above-mentioned exceptions another exception is available under Art. 74(1)79

of the Constitution of India, 1950:

Constitutional requirement to act according to the advice of some other authority80-

in certain cases the Constitution requires the President to take advice of other

authorities.81

74Samsher Singh v. State of Punjab AIR 1974 SC 2198 48.

75Supra Note 23.

76Supra Note 66, p. 690.

77DICEY, 10

thEd., p.clv.

78

Samsher Singh v. State of Punjab and Anr. AIR 1974 SC 2198 156.79

Supra Note 52.


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24

The above mentioned exceptions are the only exceptions under Art. 74(1)82 which the

President of India can use his discretion and not adhere to the aid and advice of the Council

of Ministers. The exceptions mentioned are not even remotely close or similar in nature to the

instance in the current case. Thus we very respectfully submit that the Presidents action in

the instant fact situation of granting the sanction without adhering to the aid and advice of the

Council of Ministers is in violation and contrary to Art.74(1)83 of the Constitution. Also his

action of violation makes him justifiable for impeachment under Art.61 84 of the Constitution

as well.85

B.THE PROCESS OF IMPEACHMENT CAN BE INITIATED AGAINST

THE PRESIDENT UNDERART.61 ON THE GROUNDS OF

CORRUPTION

Impeachment of the President of India shall only be initiated on the grounds of violation of

the Constitution.86

Once the charge for violation of a Constitutional provision has been

proved then the procedure for impeachment shall be initiated.87 What constitutes a violation

of the Constitution would depend upon the view taken by the House, which investigates the

charges against the President and it would be unprofitable to speculate on what view the

House would take.88 According to the Constitution makers the position of the President was

80Supra Note 66, p. 692.

81THE CONSTITUTION OF INDIA, 1950, Arts. 217(3), 103(2).

82Supra Note 52.

83Id.

84THE CONSTITUTION OF INDIA, 1950, Art. 61.


86CONSTITUTION OF INDIA, 1950, Art 56(1)(b).

87

CONSTITUTION OF INDIA, 1950, Art.61.88

H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 2025 (4th

ed. 1991, Vol. 2).


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25

to be one of great dignity and respect.89 The impression created by the President over the

nation may raise or lower the reputation of India.90

B.I. RELIANCE TO BE MADE ON THE PURPOSE AND OBJECT OF ENACTMENT OF

ART.56(1)(B)

When the Material words are capable of bearing two or more constructions the most firmly

established rule for construction of such words of all lawsin general is the rule laid down

in Heydons Case.91 This rule is also known as purposive construction or Mischief rule of

interpretation.92The rule directs that the courts must adopt the construction which shall

suppress the mischief and advance the remedy.93

B.I.1MISCHIEF RULE TO BE APPLIED IN THE INSTANT CASE

In the present case mischief rule of interpretation is of essence and applicablity. It was

pointed out in a decided judgmentby the Supreme Court that the rule in Heydons case94 was

applicable only when the language of the particular provision is ambiguous.95 In the instant

case the term violation of Constitution can have two possible interpretations.Firstly it implies

violation in a strict sense and Secondly a more comprehensive sense. The two possibilities

may lead to ambiguity and act as a hindrance in the advancing of remedy/ relief.

Misapplication of the rule of interpretation may lead to a narrow construction thus defeating

the object of the provision in question.96 The term corruption degrades and derogates the

89VII CONSTITUENT ASSEMBLY DEBATES 32.


91(1584) 3 Co.Rep.7a, p. 7b.

92Anderton v. Ryan (1985) 2 All ER 355 p.359; Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, p.

910.

93JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 121 (11

thed., 2008) .

94Supra Note 91.

95

CIT, M.P. and Bhopal v. Sodhra Devi AIR 1957 SC p. 832, 835.96

JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 127, (11th

ed. 2008).


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26

dignity and stature of the President of India who is the custodian of the Constitution.97 The

President is clothed with adequate powers to enable him to fulfil his obligations but he shall

not misuse any power conferred upon him by the various provisions of the Constitution of

India, 1950.98 In order to keep the reputation of the position of the Presidents office intact

and maintained with dignity Art. 56(1)(b)99 has to be interpreted with the object of keeping

the position free of any disregard as the impression created by the President over the nation

may raise or lower the reputation of India.100 Thus in the instant case purposive interpretation

of the term violation of Constitution has to be done. The intent behind the insertion of the

Constituent Assembly has to be taken into account to come to a conclusion.

B.I.2CONSTITUENT ASSEMBLYS POINT OF VIEW FORINSERTION IS FUNDAMENTAL

IN THE PRESENT CASE

In the history of Independent India there has been no case of impeachment filed or even

initiated. Hence in the absence of any precedent, reliance has to be paid on the Constituent

Assembly debates so as to concentrate on the object and intent of the constitution makers

behind enacting this provision.101Where the language of a provision admits of two

interpretations the court shall resort to the historical materials.102

Under Art. 361(1) he is not answerable to any court for the exercise and performance of the

powers and duties, or for any act done or purporting to be done by him in the exercise and

performance of those powers and duties.103 But a House of Parliament is not debarred from


98T.K. TOPE, CONSTITUTIONAL LAW OF INDIA, 491, (3

rded. 2010)

99THE CONSTITUTION OF INDIA, 1950.

100Supra Note 88.

101ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, 668, (2

nded. 2007).

102

S.P. Gupta v. Union of India AIR 1982 SC 304 199103

M.P.JAIN, INDIAN CONSTITUTIONAL LAW, 133, (6th

ed., 2010).


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calling into question any act of the President in impeachment proceedings and for this

purpose the House may appoint any court, tribunal or other body to investigate into a charge

against the President.104 In the words of Dr. B.R. Ambedkar the phrase violation of

Constitution is quite a large one and may well include treason, bribery and other high crimes

or misdemeanours.105 Treason would be a direct violation of the Constitution. Bribery will

also be a violation of the Constitution because it will be a violation of the oath taken by the

President.106 Therefore in his view the addition of these words was unnecessary as they are

covered by the Phrase violation of Constitution.107 Thus the ambit of the term violation of

Constitution has to be construed comprehensively in the instant case. It would be appropriate

to impeach the President on grounds of corruption as the reputation of the office is of national

importance.

B.II.THE PRESIDENT HAS BROKEN THE LAW UNDER THE PREVENTION OF CORRUPTION

ACT,1988.

In the instant case the Union Cabinet released a communiqu that the President was found to

have accumulated enormous amount of illegal wealth, stashed away in the Cayman Islands.108

The President of India has been empowered with certain immunities.109 Article 61 is an

exception and is expressly saved by the first proviso to Art.361 (1).110 Now in order to prove

the liability of the President, it needs to be established whether he would fall within the

purview of the Prevention of Corruption Act, 1988 or not.

104Id., p.134.

105(1978) 1 SCC (Jour) 1.

106Supra Note 89, p.132.

107CAD Volume VII, Date28.12.1948.


109

CONSTITUTION OF INDIA, 1950, Art.361.110

Supra Note 88, 2047.


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28

B.II.1 THE PRESIDENT OF INDIA IS A PUBLIC SERVANT ACCORDING TO THE

PREVENTION OF CORRUPTION ACT,1988.

The Prevention of Corruption Act, 1988 will be applicable on the President of India. 111 The

term Public Servant under the Act implies any person who holds an office by virtue of

which he is authorised or required to perform any public duty. 112 The term Public Duty

means a duty in the discharge of which the state, the public or the community at large has an

interest.113

Further, the explanation provides that persons falling under any of the sub-clauses of 2 (c)

are public servants, whether appointed by Government or not.114

Therefore according to the

definition given under the Prevention of Corruption Act, President of India is a public servant

as by virtue of his office he performs public duty. Now reliance has to be paid on similar

case laws where a similar question has arisen and applicability of the Act has been

questioned.

InM. Karunanidhi v.Union of India115 the question arose as to whether the Chief Minister of

a State would fall within the scope of a public servant, it was held by the Supreme Court that

Chief Minister would fall within the definition, under 21(12) of the Indian Penal Code, 1860,

of Public Servants.116

Also inR.S.Nayak v. A.R.Antulay117 the same principle was upheld.118

InP.V.

Narsimha Rao v. State (CBI/SPE)119the Supreme Court observed that in order to prove that a

Member of Parliament is a public servant not only must the person hold an office but he must

111The Prevention of Corruption Act, 1988, 1 (2).

112Id., 2 (c) (viii).

113Id., 1988, 2 (b).

114Prevention of Corruption Act, 1988, Explanation 1 2 (c) .

115AIR 1979 SC 898.

116M.Karunanidhi v.Union of India AIR 1979 SC 898 61.

117AIR 1984 SC 684.

118

R.S.Nayak v. A.R.Antulay AIR 1984 SC 684 3.119

AIR 1998 SC 2120.


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29

be authorised or required by virtue of that office to perform a public duty.120 In this case as

well 2 (c) (viii) was in question and it was proved using Constitutional provisions that a Member of

Parliament will fall within the definition of a Public Servant.121

Moving further, as per the definition a person should hold an office and by that virtue he should

perform public duties.122 The President of India holds an office under the Constitution of India,

1950123

hence satisfying one part of the definition.124

The latter part talks about the discharge of public

duty by virtue of an office.125

In the case of the President by virtue of his office certain powers and

functions are conferred upon him.126

The execution of these functions involves the interest of state, the

public and the community at large127

hence making these functions same as public duties arising out

of the office.

Hence since no such question has come before the court, thus reliance has to be paid to the case laws

which involved such a question. Similarly after interpreting 2 (c) (viii) of the Prevention of

Corruption Act, 1988 we may conclude that the President of India fulfils the provisions completely

and thus would fall within the ambit and scope of the Prevention of Corruption Act, 1988.

B.II.2 THE PRESIDENT HAS VIOLATED THE PROVISIONS OF THE PREVENTION OF

CORRUPTION ACT,1988.

The President was found to have accumulated enormous amount of illegal wealth, stashed

away in the Cayman Islands.128 Such an act of the President attracts the Prevention of

Corruption Act, 1988 according to which:

120P.V. Narsimha Rao v. State (CBI/SPE)AIR 1998 SC 2120 62.

121AIR 1998 SC 2120 60.

122Supra Note 112.

123CONSTITUTION OF INDIA, 1950, Art.52 & Art.56.

124AIR 1998 SC 2120 156.

125Id.

126CONSTITUTION OF INDIA 1950, Art 53.

127

Supra Note 113.128

Moot Proposition 4.


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30

if a public servant or any person on his behalf, is in possession or has, at any time during

the period of his office, been in possession for which the public servant cannot satisfactorily

account, of pecuniary resources or property disproportionate to his known source of

income.129

In M. Krishna Reddy v. State, Deputy Superintendent of Police, Hyderabad130four grounds

were laid down in order to substantiate a charge under 13 (1)(e) of Prevention of Corruption

Act, 1988. :

I. The prosecution must prove that the accused is a Public Servant.

II. The nature and extent of the pecuniary resources or property which are found in his

possession.

III. It must be proved as to what were his known sources of income i.e. known to the

prosecution

IV. It must prove quite objectively that resources or property found in possession of the

accused were disproportionate to his known sources of income.

The above-mentioned grounds have been proved by the Central Bureau of Investigation

(CBI) and consequently a communiqu was submitted by the Union Cabinet.131 In order to

further strengthen the ground for prosecution under 13 (1) (e) another case law needs to be

taken into consideration. InLalu Prasad and Anr. v. State of Bihar and Anr.132

The CBI framed the

charges against the Public Servant for possession of illegal amount of money acquired during 1990

1995 and 1995-1997. Similarly in the instant case as well the President had acquired illegal amount of

money which was stashed away in Cayman Islands.133 Thus we can conclude that the Prevention of

129Prevention of Corruption Act, 1988, 13 (1)(e) .

130AIR 1993 SC 313 7.


132

AIR 2010 SC 1561 4.133

Moot Proposition 4.


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31

Corruption Act will befirstly applicable for the President of India andsecondly he will be liable under

13 (1) (e) of Prevention of Corruption Act, 1988.

B.III. THE ACT OF CORRUPTION IS IN DIRECT VIOLATION OF THE CONSTITUTION OF

INDIA,1950

Under Art. 60 the president swears that to the best of his ability he will preserve protect and

defend the Constitution and the Law and Art. 61 provides a sanction for the fulfilment of the

oath, because under Art. 61, the President can be impeached for the violation of the

Constitution.134 As proved above the President is liable under the Prevention of Corruption

Act, 1988.

B.III.1THE PRESIDENT HAS VIOLATED ART.60 OF THE CONSTITUTION OF INDIA,

1950

As stated above the President swears to not only preserve protect and defend the Constitution

but also the Law.135 According to the Blacks Law Dictionary Law is the system of

authoritative materials for grounding or guiding judicial and administrative action recognised

or established in a politically organised society.136 It is a necessary implication of Art.60 and

Art. 61, that the President has to discharge his powers and functions in accordance with the

provisions of the Constitution.137

It is well settled under the Prevention of Corruption Act,

1988 that if a public servant is involved in any corrupt practices he/ she will be liable for

punishment under the act.138 Similarly the President in the instant case has broken the law and

has thus violated his oath by not defending preserving or protecting the law.

134Supra Note 88, 2044.

135CONSTITUTION OF INDIA, 1950, Art 60.

136BRYAN A GARNER, BLACKS LAW DICTIONARY, (7

thed., 1999).

137

Supra Note 115.138

Prevention of Corruption Act, 1988, 19 (1) (a).


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32

B.III.1.1PURPOSE AND IMPORTANCE OF OATH

The real purpose of an Oath is that the person concerned must give an undertaking to bear

true faith and allegiance to the Constitution and uphold the sovereignty and integrity of

India.139 The President is oath-bound to protect and preserve the Constitution. Placed as he is

and having regard to the material which is available to him alone and also because he alone is

best fitted to determine on the basis of material before him whether the situation

contemplated by Article 356(1) has arisen the matter must be left to his judgment and good

sense. He alone is presumed to possess the astute political-cum-administrative expertise

necessary for a proper and sound exercise of the said power.140

B.III.1.2CORRUPTION AMOUNTS TO VIOLATION OF OATH

Corruption literally means departure from what is pure and correct.141Corruption in an

arbitrators sense means a form of moral obliquity.142 It also means something against law or

forbidden by law.143 A Fiduciarys or officials use of a station of office to procure some

benefit either personally or for someone else, contrary to the rights of others.144

Looking at the above- mentioned definitions of the term corruption it is clear that any act

which is against or in violation of any law is a corrupt act. In the instant fact situation it has

been proved that the President is liable for stashing away enormous amount of illegal wealth

in Cayman Islands.145 Such an act of the President makes him liable under 13 (1)(e) of the

139B.R. Sutaria v. N.P. Bhanvadia AIR 1970 SC 765.

140S.R. Bommai and others etc. etc. v. Union of India and others etc., AIR 1994 SC 1918 109.

141WEBSTERS NEW ENCYCLOPEDIA DICTIONARY, (Revised ed. 1995,BD&L).

142D GREENBERG & ALEXANDRA MILLBROOK, STROUDS JUDICIAL DICTIONARY OF WORDS

.AND PHRASES, (6th

ed., Vol.1, 2000).

143P.RAMANATHA AIYAR, THE LAW LEXICON, (2

nded., 2007).

144

BRYAN A GARNER, BLACKS LAW DICTIONARY, (7th

ed., 1999).145

Moot Proposition 4.


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Prevention of Corruption Act, 1988 as proved above. It is the Presidents duty to abide by the

oath146 which in the instant case is not apparent rather contrary scenario has come to light.

Thus in this case the ambit and scope of Art. 56(1)(b) and Art. 61 of the Constitution have to

be comprehensively taken into consideration and not in a narrow sense.147 The oath binds the

President to protect preserve and defend the law whereas in the instant case the President has

broken the law and is liable under 13 (1)(e) of the Prevention of Corruption Act, 1988.

Hence we humbly submit that the impeachment procedure can be initiated on the grounds of

corruption.

146

Supra Note 88, 2047.147

Supra Note 96.


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PRAYER

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

prayed on behalf of the appellants, that this Honble Court may be pleased to adjudicate and

declare that:

1. Special Leave Petition is maintainable.

2. The sanction accorded to Buddi Brothers given by the President of India

be quashed.

Further in the light of facts stated, arguments advanced and authorities cited on behalf of the

Union of India, the Honble Court may be pleased to conclude and declare that:

1. The process of impeachment can be initiated against a President under

Art.61 of the Constitution of India, 1950 on grounds of corruption.

The Court may also be pleased to pass any other order, which the court may deem fit in light

of justice equity and good conscience.

All of which is respectfully submitted,

S/D: ______________

PLACE: NEW DELHI

DATE: 04th October, 2022. (On behalf of the Appellants)

Documents

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