COMMON INDUCTION MOOT 2022-2023 Page |

UPC – CIM (1)(61)

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COMMON INDUCTION MOOT 2022-2023

Before

THE HON’BLE SUPREME COURT OF INDISTAN

In the matters of:

WRIT PETITION NO. ____ OF 2023

Mr. Sajjan Singh …PETITIONER

Versus
Union of Indistan & others ...RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

LORDSHIP’S COMPANION JUSTICES OF THE HON’BLE SUPREME
COURT OF INDISTAN.
________________________________________________________________
WRIT PETITON INVOKED UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDISTAN

MEMORIAL ON BEHALF OF THE PETITONER

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TABLE OF CONTENT

• TABLE OF ABBREVIATIONS……………………………………………………3
• INDEX OF AUTHORITIES………………………………………………………..4
• STATEMENT OF JURISDICTION……………………………………………….5
• STATEMENT OF FACTS………………………………………………………….6
• SUMMARY OF ARGUMENTS…………………………………………………7-8
• ISSUES RAISED…………………………………………………………………….8
• ARGUMENTS ADVANCED……………………………………………………9-16
• WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT
CASE IN THE SUPREME COURT OF INDISTAN OR NOT?
1.1 Violation of Fundamental Rights
• WHETHER THE PERSON WHO IS NOT THE MEMBER OF EITHER
HOUSES OF PARLIAMENT SHOULD BE APPOINTED AS PRIME
MINISTER OR NOT?
2.1 It threatens the roots of democracy
2.2 Qualifications required to become the member of Parliament.
• WHETHER THE PERSON WHO IS NOT THE MEMBER OF LOK SABHA
SHOULD BE APPOINTED AS PRIME MINISTER OR NOT?
• WHETHER THE PRACTICE OF APPOINTING THE PRIME MINISTER
FIRST AND LATER ELECTING HER/HIM IS DEMOCRATIC OR NOT?
• PRAYER…….………………………………………………………………………17

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TABLE OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And

Art. Article

Dr. Doctor

Edn. Edition

Id. Immediately preceding citation.

RPA Representation of People Act,1951

SCC Supreme Court Cases

Sec. Section

The constitution The constitution of Indistan

Viz. Namely

V. Versus

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INDEX OF AUTHORITIES

STATUTES

1 The Constitution of Indistan.

2 The Representation of the People Act, 1951.

BOOKS/DICTIONARIES

1 M.P. Jain, Indian Constitutional Law (Lexis Nexis,7th edn., 2014)

2 M. Laxmikant, Indian Polity (Mc Graw Hill,6th revised edn.,2022)
3 Black’s law dictionary, (6th edn.)

CASES
B.L. Kapur v. State of Kerala , (2001) 7 SCC 231

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STATEMENT OF JURISDICTION

The jurisdiction of the Supreme Court of Indistan has been invoked under Art. 32 of the
Constitution of Indistan (hereinafter “the constitution”)

Art. 32 read as: Remedies for enforcement of rights conferred by this part-

1) The right to move to supreme court by appropriate proceedings for the enforcement of
the rights conferred by this part is guaranteed.

2) The Supreme Court shall have the 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 rights conferred
by this part.

********

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STATEMENT OF FACTS

1. Mr. Sajjan Singh, who is a professor of Political Science in a leading university and
who is an expert in the domain of Political Science has approached the Supreme Court
of Indistan against the appointment of Govind Ram Khanna as the Prime Minister of
the country.
2. Mr. Sajjan Singh alleges that Mr. Khanna is ineligible to the office of prime Minister
on the ground that he was not the member of either houses of parliament on the date
on which he is appointed as Prime Minister by the President. Since Mr. Sajjan Singh is
well-versed with the theories of Political Science, he is far more sensitive to the fact
that Prime Minister should always be the member of the house in which members are
directly accountable to the people of the country than any other average citizen of the
country.
3. Further, Mr. Sajjan Singh contends that by convention, the Prime Minister must always
be the member of the lower house of Parliament so that she/he may reflect the public
opinion truly and faithfully, and thus, the President, Dr. Gopal Das has committed a
grave and constitutional error in swearing him in as the Prime Minister of the country.
4. Petitioner challenges his prosecution mainly on the ground that the person who is not
the member of Lok Sabha should not be appointed as the Prime Minister and his
appointment is violative of Art.14, 21 and 75 of the Constitution of Indistan.
5. Petitioner has therefore moved to the Supreme Court of this country for the redressal
of the issue.

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SUMMARY OF ARGUMENTS

1-WHETHER THE WRIT PETITION IS MAINTAINABLE IN PRESENT CASE

BEFORE SUPREME COURT OF INDISTAN OR NOT?

It is humbly submitted that Writ Petition is maintainable before supreme court of Indistan under
Art. 32 of the Constitution for the enforcement of fundamental rights by Part III of the
Constitution. Firstly, The appointment of a person who is not the member of Lok Sabha on the
date of appointment as Prime Minister is violative of Art.14, 21 and 75 of the Constitution of
Indistan. Secondly, Since the case is of national importance and is out of jurisdiction of any
High Court in the country the Writ Petition could not be invoked under Art. 226 of the
constitution of Indistan.

2-WHETHER THE PERSON WHO IS NOT THE MEMBER OF EITHER HOUSES OF

PARLIAMENT SHOULD BE APPOINTED AS PRIME MINISTER OR NOT?

The counsel for Petitioner contends that a person who is not the member of either house of
Parliament should not be appointed as the Prime Minister. As the members of the Parliament
owe their accountability to the people of the country and that a non-member of the Parliament
would lack this accountability and connection to the legislative process. Secondly, Art. 75(5)
of the constitution which states that –

‘A minister who for any period of six consecutive months is not a member of either house of
Parliament shall at the expiration of this period cease to be a minister’.

The word minister in this article does not covers Prime Minister in its ambit and even if it does
the above-mentioned article should be struck down as it threatens the very root of democracy.

3-WHETHER THE PERSON WHO IS NOT THE MEMBER OF LOK SABHA

SHOULD BE APPOINTED AS PRIME MINISTER OR NOT?

The counsel for the petitioner contends that the person who is not the member of Lok Sabha
should not be appointed as the Prime Minister of the country. Prime Minister is the leader of
the largest party in the Lok Sabha and a leader is evidently the member of Lok Sabha which

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implies that she/he must have qualified for the membership of the Lok Sabha as mentioned in
Art. 84 of the Constitution of Indistan. Therefore, first a person must become the member of
the Lok sabha to ensure the citizens that he had not been disqualified and is eligible to be trusted
upon by the people of the country.

4-WHETHER THE PRACTICE OF APPOINTING THE PRIME MINISTER FIRST

AND LATER ELECTING HER/HIM AS THE PRIME MINISTER IS DEMOCRATIC
OR NOT?

The Counsel for the Petitioner contends that the practice of appointing the Prime Minister first
and later electing her/him as the Prime Minister is not democratic and abuses the entire
democratic process of electing the Prime Minister. Therefore, this practice should be stopped
immediately as this practice spaces out the scope of using short-cut method to become the de
facto leader of the country.

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ISSUES RAISED

1) WHETHER THE WRIT PETITION IS MAINTAINABLE IN PRESENT CASE

BEFORE SUPREME COURT OF INDISTAN OR NOT?
2) WHETHER THE PERSON WHO IS NOT THE MEMBER OF EITHER
HOUSES OF PARLIAMENT SHOULD BE APPOINTED AS PRIME
MINISTER OR NOT?
3) WHETHER THE PERSON WHO IS NOT THE MEMBER OF LOK SABHA
SHOULD BE APPOINTED AS PRIME MINISTER OR NOT?
4) WHETHER THE PRACTICE OF APPOINTING THE PRIME MINISTER
FIRST AND LATER ELECTING HER/HIM IS DEMOCRATIC OR NOT?

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ARGUMENTS ADVANCED

[ISSUE-1] WHETHER THE WRIT PETITION IS MAINTAIBLE OR NOT IN THE

PRESENT CASE BEFORE SUPREME COURT OF INDISTAN?

The writ petition is Maintainable in the present case before the Supreme Court of Indistan as
the appointment of Govind Ram Khanna as the Prime Minister by the President Dr. Gopal Das
is violative of Art.14, 21, 75 and 84 of the Constitution1. And the issue in picture centres the
Prime Minister of the country therefore, writ Petition under Art. 226 of the constitution2 cannot
be invoked as it would be out of the jurisdiction of any High Court within the territories of
Indistan.

1.1 There is Violation of Fundamental Rights

It is humbly submitted that a Writ Petition can be filed for the enforcement of Fundamental
rights in this case Art.14 and Art.21 as guaranteed under Art.32 of the Constitution of Indistan.
Art.14 is the most basic Fundamental right provided by the constitution3 and it strikes at the
arbitrariness of the state or its organs. Arbitrariness in its literal meaning implies that someone
is deprived of their privilege of equal treatment before law. And in the present case the
members of the Parliament have been deprived of this privilege of equal treatment before law.
Art. 14’s objective is to promote equality at all levels whether at village level or at national
level.

Art.144 states- ‘Equality Before Law: The state shall not deny to any person equality before
the law or equal protection of laws within the territories of Indistan’. Art.14 therefore carves
out two concepts of equality- 1. Equality Before Law and 2. Equal Protection of laws where
these two ardent principles of equality are protected under the Basic Structure Doctrine of the
constitution., this doctrine has been violated as well which should be taken seriously. Art.14 in
present case is violated in the way that no distinction was made between a non-member and
member of the Parliament. The members of the Parliament were treated unequally with the
non-member. Their competence is compared less with that of the non-member who does not
even has qualified for the membership of the Parliament. The election of the non-member to

1
The Constitution of Indistan.
2
Id.
3
Id.
4
The Constitution of Indistan.

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the post of Prime Minister, where the constitution has clearly mentioned certain eligibility
criterias to become the member of the Parliament and has also authorised the Parliament to lay
down additional qualifications in future when needed after which the Parliament had enacted
the Representation of the People Act5 (hereinafter referred to as ‘the act’), is in the first place
against the spirit of Art. 14. and Mr. Govind Ram Khanna has skipped all the qualifications
mentioned in the constitution6 to become the Prime Minister which also falsifies the concept
of democracy and threatens the life and liberty of the citizen of the Indistan mentioned under
Art. 21 of the constitution violating another fundamental right of the citizens. Therefore, the
President Dr. Gopal Das has committed a grave constitutional error in appointing him as the
Prime minister.

Art. 21 of the constitution protects the life and personal liberty of the people of the country. In
the present case the appointment of a non-member to the parliament whom the people did not
vote for, who holds no accountability and responsibility towards the people of the country, who
has become the Prime Minister by the will of his party only and no will of citizens is represented
in him, risks the life and liberty of each citizen and until this appointment is not taken down,
the people of the country will live in the constant fear of deprivation of their rights and no
remedies to avail for such deprivations which will lead to the defiance of the spirit of
democratic, liberty, equality, Justice- social and political and also people will lose their faith in
the courts of the country and Art. 32 which is called as ‘heart & the soul of constitution’ by Dr.
B.R. Ambedkar will remain as a Paper-tiger. Therefore, such issue which will take the more
serious form in the future should be taken seriously.

[ISSUE-2] WHETHER A PERSON WHO IS NOT THE MEMBER OF EITHER

HOUSES OF THE PARLIAMENT SHOULD BE APPOINTED AS PRIME
MINISTER OR NOT?

2.1 It Threatens the roots of democracy.

It is brought to the esteemed attention of the court that a person who is not the member of either
house of Parliament should not be appointed as the Prime Minister as it negates the true
meaning of the Democracy. According to the Black’s Law Dictionary, ‘Democracy is that form

5
Representation of the Parliament Act, 1951
6
The Constitution of Indistan.

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of government in which the sovereign power resides in the and is exercised by the whole body
of free citizens directly or indirectly through a system of representation, as distinguished from
monarchy, aristocracy or oligarchy. According to the theory of pure democracy, every citizen
should participate directly in the business of governing & the legislative assembly should
comprise the whole people.’7 In other words Democracy is different from other forms of the
government in the only manner that citizens of the country play a crucial role in electing the
government. The Preamble of the Constitution has stipulated a democratic polity to Indistan.
In present time it has become more important than ever that the entire democratic procedure
assigned to India by our forefathers is followed strictly and Indistan bear truth to the status of
‘mother of democracy’ accorded to her.

Under the doctrine of Universal adult Franchise, citizens have been given the political right of
electing the government through their own intellect and assessment of the welfare they have
been provided in five years by their Regional Leaders and through this assessment they reach
to the conclusion of electing one such regional leader and give them the opportunity to get
seated in the Lok Sabha and present them and their problems in the parliament and bridge the
gap between them and the law-makers. The person who is not the member of the Lok Sabha
means she/he is not directly elected by the people. She/he has no account of the work done
towards the welfare of the people, whom the people have not voted for, who holds no
accountability to the people and upon whom the people of the country have not placed their
confidence and trust. Such person threatens the life and liberty of the citizens of the country
and therefore violates the Art.21 of the constitution and places them in the constant fear of
some unconstitutional actions. The appointment of a person who is out of the touch of the
legislative process also threatens the external relations of Indistan ruining which might have
serious geopolitics disturbance in the region.

During the Constituent Assembly debate, Prof. K.T. Shah recommended an amendment to the
Art. 75(5) of the constitution which was that “no person may be appointed a minister unless at
the time of his appointment, he is a elected member of the house”. This amendment was humbly
taken down by the Hon’ble Dr. B.R. Ambedkar keeping in mind the political and social
situation of the country and the fact that people might be less aware of the potential of political
leaders at that time and he also stated that there might be a competent leader but due to some
reasons he might not get elected by the people of his constituency, Dr. B.R. Ambedkar might

7
Black’s law dictionary,6th edition

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have stated this reason keeping in mind the positive use of the Art. 75(5) but now the time has
changed the possibility that such method of becoming Prime Minister will not be misused
cannot be denied, there are always the chances that the person who wants to become the Prime
Minister through the assistance of Art. 75(5) of the constitution may have a high influence over
her/his party members and may use such influence in her/his favour to become the Prime
Minister which also defies the objective of Dr. B.R.Ambedkar for keeping such article and also
people are very well aware of the political scenarios in the country now (thanks to the
technology) and filter out the abled leaders among others, therefore the old laws and articles
must be scrutinised keeping in mind the modern society and necessary amendments are brought
to them by the parliament before it is too late.

2.2 Qualifications required to become the member of parliament

The Constitution of Indistan lays down certain qualifications to become the member of either
house of Parliament. These qualifications are mentioned in Art. 84 of the constitution.

Art. 84 is read as: Qualifications required to become the member of Parliament.

A person shall not be qualified to be chosen to fill a seat in Parliament unless he

(a) Is a citizen of Indistan, and makes and subscribes before some person authorised in
that behalf by the election commission an oath or affirmation according to the form set
out for the purpose in Third Schedule;
(b) Is, in the case of a seat in the Council of States, not less than thirty years of age and, in
the case of a seat in the House of People and not less than twenty-five years of age; and
(c) Possesses such other qualifications as may be prescribed in that behalf by or under any
law made by Parliament.8

The parliament has laid down the following additional qualifications in the Sec. 3 & Sec. 4 of
the Representation of People Act9

Sec. 3 of the RPA: Qualification for the membership of the Council of States- A person
shall not be qualified to be chosen as a representative of any state

Sec. 4 of the RPA: Qualification for membership of the House of the People- A person
shall not be qualified to be chosen to fill a seat in the House of the People unless-

8
M. Laxmikanth, Indian Polity (Mc Graw Hill, 6th revised edition)
9
Representation of People Act,1951

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d) in the case of any other seat, he is an elector of the parliamentary constituency10

The above mentioned qualifications must be set out for the purpose of screening and must be
there for the reason of preventing any ineligible person for holding a seat in the parliament.
Not only this these qualifications also indirectly imply that one cannot become the member of
Parliament easily she/he needs to handover all the documents related to them whether ITR data
or birth record or the holding of land or the record of their criminal data to ensure that the
person has not been in corrupt services and not been indulge in any illegal activity and is true
to her/his character and is a responsible citizen of the country. She/he needs to work towards
the welfare of the people to showcase her/his dedication towards the society. These
qualifications are mentioned because the people who hold the capability of running a
government, making laws are given the chance and not just any person picked out from the
crowd. Therefore, appointing such person who has not even became the member of Parliament
first, as Prime minister is an arbitrary action before the eyes of law and dominates the will of
few over the rest which is not the purpose of democracy. The qualification which prescribes a
minimum age to be passed is of utmost importance, what if the person becoming the prime
minister does not bar the age of twenty-five? The appointing of such person will create
disparities among the eligible members of the parliament, it will create disharmony in the
parliament which will not only hurt the proper execution of plans and developments but will
also infuse the sense of unequal treatment among the members of the parliament, such Prime
Minister will not be in the position to form a stable ministry and carry the house with him in
his policies and programmes and the government cannot function. And all of this will
ultimately betray the spirit of the constitution and intention our forefathers and therefore such
kind of foreseeable harm must be avoided when the matter is still in hand. Only the person who
is inside the parliament, member of it, took part in the proceedings, knows the legislative
process, aware of the ground-level air of the Parliament, should be appointed as Prime Minister.
“The rule that ministers should be member of Parliament is, indeed, essential to the smooth
and proper working of the Parliamentary form of government. Their presence in Parliament
makes a reality of their responsibility and accountability to Parliament and facilitates co-
operation and interaction between them and the Parliament, both these features vital to the
Parliamentary government”11.

10
only relevant provision has been mentioned
11
M.P. Jain, Indian Constitutional Law (lexis nexis,7th edn.)

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To save the constitution from such unforeseeable harm certain disqualifications are also
prescribed by the constitution under Art. 102 of the constitution.12

Art. 102 read as: Disqualification for membership

1) A person shall be disqualified for being chosen as, and for being, a member of either
House of Parliament
a) If he holds any office of profit under government of India or the government of any
state, other an office declared by parliament by law not to disqualify its holder;
b) If he is of unsound mind and stands so declared by a competent court;
c) If he is an undischarged solvent;
d) If he is not the citizen of Indistan, or has voluntary acquired the citizenship of a
foreign state, or is under any acknowledgement of allegiance to a foreign state;
e) If he is so disqualified by or under any law made by the Parliament.
2) A person shall be disqualified for being a member of either house of Parliament if he
is so disqualified under the Tenth Schedule.

The Parliament has laid down the additional disqualifications under the Chapter III:
Disqualification for the membership of the Parliament and State legislatures in the
Representation of the People Act13.

The possibility that the non-member would not be disqualified under the above mentioned
disqualifications cannot be denied, because this non-member will hold the prime minister’s
office before getting scrutinised and even if he later found out to be a disqualified member, he
would have till then held the office of Prime Minister for some period of time. How would the
constitution will justify the wrongs done in that period of time for which he falsely remained
as prime minister?

In a very significant pronouncement, viz. B.R. Kapur v. State of Tamil Nadu,14 the Supreme
Court has read a significant restriction in the Art. 75(5). The Supreme court has ruled that under
Art. 75(5), a member who is not a member of a House of parliament can be appointed as the
prime Minister or minister only if he has the qualification for membership of Parliament as
prescribed by Art. 84 and is not disqualified from the membership thereof by the reason of the

12
Constitution of Indistan.
13
Representation of the People Act, 1951.
14
(2001) 7 SCC 231

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disqualification set out in Art. 102 of the constitution.15 Supreme Court made it mandatory to
first qualify for the membership of the Parliament.

Therefore, it is of utmost importance that a person first gets elected to the house of Lok Sabha
and then becomes minster and then becomes the primus inter pare. These levels of becoming
the Prime Minister are there to remove even slightest of doubt in the mind of the people electing
him.

[ISSUE-3] WHETHER THE PERSON WHO IS NOT THE MEMBER OF LOK SABHA
SHOULD BE APPOINTED AS PRIME MINISTER OR NOT?

It is humbly submitted that a person who is not the member of the popular house of the
parliament should not be appointed as the Prime Minister. Generally the Prime Minister has
always belonged to the Lok Sabha but in few instances as seen in the past, the Prime Minister
did not belong to the House of People such as “Mrs. Indira Gandhi a member of the Rajya
Sabha became the Prime minister in 1966. But the fact that she was elected to Lok Sabha soon
thereafter also shows that it is the considered desirable that Prime Minister should belong to
the Lok Sabha.”16 It would be favourable to make the membership of Lok Sabha for becoming
the prime minister mandatory.

A well-established convention in the Britain has been that the Prime Minister should belong to
the House of Commons. The justification for the convention is not far to seek. The House of
Common is elected on the popular basis, reflects the public opinion more truly and faithfully
than does the House of Lords. To carry on the government effectively, the Prime Minister
cannot afford to be out of touch with the House of commons. In the very nature of things,
therefore it is necessary that prime minister should belong to the House of common so that he
may carry the house along with him17.Therefore, in Britain Prime Minister has always been the
part of House of commons

In the context of Indistan, the Art. 88 of the Constitution18 mentions that – ‘Rights of ministers
and attorney-general in respect houses: “Every minister and the attorney-general of Indistan
shall have the right to speak in and otherwise take part in the proceedings of either house, any
joint sitting of the houses and any committee of which he may be named a member, but shall

15
M.P. Jain, Indian constitutional law (lexis nexis, 7th edn.)
16
Id.
17
Id.
18
Constitution of Indistan

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not by virtue of this article be entitled to vote officers of Parliament.” Which means that if the
Prime Minister is not from Lok Sabha or in other words is from Rajya Sabha may take the part
in the debate proceedings of the house but will not have the right to vote in Lok Sabha which
shakes the very purpose of being the prime minister as his vote carries a significant importance
and also only the Lok Sabha has the privilege of initiating a number of bills on its floor such
as Financial Bills, Money Bills etc and devoiding the prime Minister of voting in the matters
of such national importance not also effects the efficiency of the Prime Minister but also does
not justifies his position as the de facto ruler of the country and also poses a serious risk to the
functioning of the country. A Prime Minister until not directly linked to the people of the
country will not feel connected to them and will not feel being accountable to them and in such
a case the people of the country will find it hard to place their confidence and trust in him. In
any case, a member of the Rajya Sabha on becoming the Prime Minister should seek election
to the Lok Sabha at the earliest opportunity and seek the vote of confidence at the earliest in
accordance with the highest democratic traditions and in the interest of establishing healthy
conventions.

[ISSUE-4] WHETHER THE PRACTICE OF APPOINTING THE PRIME MINISTER

FIRST AND LATER ELECTING HER/HIM IS DEMOCRATIC OR NOT?

It is humbly submitted before this Hon’ble court that the practice of appointing the Prime
Minister first later electing him is as irrational as passing a student in an exam first and later
taking her exam. Becoming the Prime Minister through the assistance of Art. 75(5) of the
constitution of Indistan before even qualify to become the minister first is way easier than
becoming the Prime Minister through true democratic process. This practice is a short-cut
process to hold the highest office of the country. Such short-cut process is the clear defiance of
the democratic procedure intended by the constitution-makers.

Sir Ivory Jennings has described Prime Minister as “He is, rather a sun around which planet
revolves. He is the key-stone of the constitution. All roads in the constitution lead to Prime
Minister”. The Prime Minister is the de facto ruler of the country such short-cut methods
skipping all the qualifications and disqualifications should be held unconstitutional.

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PRAYER

Therefore, in the light of matters and circumstances at hand, Petitioner most humbly pray that
Hon’ble court may be pleased to hold that:

1 The appointment of the Prime Minister Govind Ram Khanna by the President Dr. Gopal
Das is violative of Art. 14, 21 and 75 therefore should be held void ab initio.
2 The membership of the Lok Sabha to become the Prime Minister should be held
mandatory.
3 The Parliament should construe the relevant provisions of the constitution in such a
manner in which we relieve the country of such a grave risk, argued the petitioner.

4 Any other order(s) and/or relief(s) may be passed which the Hon’ble Court may deem
just and fit as per the facts and circumstances of the matters at hand, in the interest of
justice. It is prayed accordingly.

DATED: 21 MARCH, 2023

Sd/-

Petitioner

Through

Sd/-

Counsel

{TEAM CODE- CIM (1)(61)}

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MEMORIAL ON BEHALF OF THE PETITIONER