MEMORANDUM ON BEHALF OF APPELLANTS

4TH ANNUAL NALSAR-JUSTICE BODH RAJ SAWHNY MEMORIAL MOOT COURT COMPETITION NALSAR, HYDERABAD
IN THE HONBLE SUPREME COURT OF INDIA
CASES CONCERNING

ARTICLE 74 AND ARTICLE 61 OF THE CONSTITUTION OF INDIA

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 AND ANR.
WITH

IN RE: IMPEACHMENT OF PRESIDENT UNDER ARTICLE 61

MEMORANDUM ON BEHALF OF THE APPELLANTS
(LENIN BUDDI AND ORS.)

AND UNION OF INDIA

TEAM:

MEMORANDUM ON BEHALF OF APPELLANTS

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 ARGUMENTS ADVANCED ................................................................................................................. 14

THE APPEAL UNDER ARTICLE 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 OF ARTICLE 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

MEMORANDUM ON BEHALF OF APPELLANTS B. THE PROCESS OF IMPEACHMENT CAN BY INITIATED AGAINST THE 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

MEMORANDUM ON BEHALF OF APPELLANTS

INDEX OF AUTHORITIES LIST OF ABBREVIATIONS

-------------------------------

Section Paragraph All India Reporter Another Article Constitutional Assembly Debates Central Bureau of Investigation Company Edition and others/ and elsewhere Etcetera Ibid Inclusive Indian Penal Code, 1860 Journal Karnataka Law Journal Limited Oxford University Press Others page Prevention of Corruption Act, 1988 Private Reference Report Supreme Court Supreme Court Cases Supreme Court Reports Special Investigating Team Union of India Uttar Pradesh
4

A.I.R. Anr. Art. CAD CBI Co. Ed. Et. Al. etc. Id. Inc. IPC Jour KarLJ Ltd. O.U.P. Ors. p. POCA Pvt. Re. Rep. S.C. S.C.C. S.C.R. SIT U.O.I. UP

MEMORANDUM ON BEHALF OF APPELLANTS 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
5

MEMORANDUM ON BEHALF OF APPELLANTS 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

MEMORANDUM ON BEHALF OF APPELLANTS 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 PUBLISHING COMPANY PVT. LTD. (1993)

ED.,

UNIVERSAL LAW

HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, VOLUME 3,4TH PUBLISHING COMPANY PVT. LTD.(1996)

ED.,

UNIVERSAL LAW

M.P.JAIN, INDIAN CONSTITUTIONAL LAW, 6TH ED., LEXIS NEXIS BUTTERWORTHS WADHAWA NAGPUR, (2010) D.D. BASU, SHORTER CONSTITUTION OF INDIA, VOLUME 1, 14TH ED., LEXIS NEXIS BUTTERWORTHS WADHWA NAGPUR, (2009) D.D. BASU, SHORTER CONSTITUTION OF INDIA, VOLUME 2, 14TH ED., LEXIS NEXIS BUTTERWORTHS WADHWA NAGPUR, (2009) A.P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, VOLUME 1, 2ND ED., WADHWA AND COMPANY NAGPUR, (2007) V.N. SHUKLA, CONSTITUTION OF INDIA, 11TH ED., EASTERN BOOK COMPANY, (2008) T.K. TOPE, CONSTITUTIONAL LAW OF INDIA, 3RD ED., EASTERN BOOK COMPANY, (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 COMPANY NAGPUR, (2008)

MEMORANDUM ON BEHALF OF APPELLANTS

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, 6
TH

ED., SWEET AND MAXWELL, (2000)

P.R. AIYAR, THE LAW LEXICON, 2ND ED., WADHWA AND COMPANY NAGPUR, (1997) WEBSTERS NEW ENCYCLOPEDIC DICTIONARY, BLACK DOG AND LEVENTHAL PUBLISHERS, (1993)

MEMORANDUM ON BEHALF OF APPELLANTS

STATEMENT OF JURISDICTION

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 (In Reference) - 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.

MEMORANDUM ON BEHALF OF APPELLANTS

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.

10

MEMORANDUM ON BEHALF OF APPELLANTS 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.

11

MEMORANDUM ON BEHALF OF APPELLANTS

STATEMENT OF ISSUES
I. Whether the appeal by the Buddi Brothers is maintainable under Art. 136 of the Constitution of India, 1950? II. Whether the sanction accorded to Buddi Brothers by the President is in violation of Art. 74 of the Constitution of India, 1950? III. In Reference: Whether under Art. 61 of the Constitution of India, proceedings for impeachment of the President could be initiated on grounds of corruption?

12

MEMORANDUM ON BEHALF OF APPELLANTS

SUMMARY OF ARGUMENTS
A. THE APPEAL BY THE BUDDI BROTHERS IS MAINTAINABLE UNDER ARTICLE 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. IN REFFERENCE: IMPEACHMENT PROCEEDINGS

COULD BE INITIATED AGAINST THE

PRESIDENT UNDER ARTICLE 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.

13

MEMORANDUM ON BEHALF OF APPELLANTS

ARGUMENTS ADVANCED

THE APPEAL BY THE BUDDI BROTHERS UNDER ART.136 IS MAINTAINABLE.

1. POWER UNDER ART. 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 nonspeaking 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 In Mathai v. George and Anr.7,
1

Pritam Singh v. The State AIR 1950 SC 169 ; M/s. Bengal Chemical & Pharmaceutical Works Ltd. v. Their Workmen AIR 1959 SC 633.

2 3 4 5 6 7

Master Construction (P) Ltd. v. State of Orissa and anr. AIR 1966 SC 1047. Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy (2005) 1 SCC 481. Ramakant Rai v. Madan Rai and Ors. AIR 2004 SC 77. Moot Proposition 4. Om Prakash Sood v. Union of India (2003) 7 SCC 473. (2010) 4 SCC 358.

14

MEMORANDUM ON BEHALF OF APPELLANTS 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.10 In 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.

8 9

Sakharam v. State of Maharastra, (1969) 3 SCC 730. Kapurchand Kesarimal Jain v. State of Maharashtra (1973) 3 SCC 299. Hindustan Times Ltd. v. Union of India and Ors. (1998) 2 SCC 242. Moot Proposition 5. Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and Brothers, 2010 (4) KarLJ 256.

10 11 12

15

MEMORANDUM ON BEHALF OF APPELLANTS

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 Procedure 18 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

13 14 15 16 17 18 19 20

H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 2040, (4th ed. 1991, Vol. 2). M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 154, (6 th ed. 2010). VII CONSTITUENT ASSEMBLY DEBATES 32. Id. Moot Proposition 3. Code of Criminal Procedure, 1973, 197. The Prevention of Corruption Act, 1988, 19(1) (a). Id.

16

MEMORANDUM ON BEHALF OF APPELLANTS 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 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. In M. 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.
OF

THE DEFINITION

21 22 23 24 25 26 27 28

The Prevention of Corruption Act, 1988, 2(c) (i). The Indian Penal Code, 1860, 21(12). THE CONSTITUTION OF INDIA, 1950, Art. 75(1) . Id., Art. 75(6). AIR 1979 SC 898. M.Karunanidhi v.Union of India AIR 1979 SC 898 61. AIR 1984 SC 684. R.S.Nayak v. A.R.Antulay AIR 1984 SC 684 3.

17

MEMORANDUM ON BEHALF OF APPELLANTS Narsimha Rao v. State (CBI/SPE)29 the 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 THE PRESIDENT In Rai Sahib Ram Javaya Kapur and Ors. v. The State of Punjab 32 it 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 President 36 similarly any action taken
29 30 31 32 33 34 35 36

AIR 1998 SC 2120. P.V. Narsimha Rao v. State (CBI/SPE) AIR 1998 SC 2120 62. THE CONSTITUTION OF INDIA,1950, Art.75(5). AIR 1955 SC 549 14. State of Madhya Pradesh v. Dr. Yashwant Trimbak, AIR 1996 SC 765 19. Id. AIR 1974 SC 2192 25. THE CONSTITUTION OF INDIA, 1950, Art. 77(1).

18

MEMORANDUM ON BEHALF OF APPELLANTS 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 abovementioned 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 THE PRESIDENT, AID
AND ADVICE OF THE COUNCIL 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
37 38 39 40 41 42 43 44

THE CONSTITUTION OF INDIA, 1950, Art. 166 (1). Rameshwar Prasad and Ors. V. Union of India and Anr. AIR 2006 SC 980 94. Supreme Court Advocates on Record Association and Anr. v. Union of India AIR 1994 SC 268 296. Supra Note 14, 164. THE CONSTITUTION OF INDIA, 1950, Art. 75(3). Samsher Singh v. State of Punjab and Anr. AIR 1974 SC 2198 32. Id. Supra Note 42 35.

19

MEMORANDUM ON BEHALF OF APPELLANTS 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 In B.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

45 46 47 48 49 50 51 52

AIR 1971 SC 1002 3. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, 668, 2nd ed. 2007. M.P. SINGH, V.N.SHUKLAS CONSTITUTION OF INDIA, 392 (11th ed. 2008). DR.AMBEDKAR, IVTH CONSTITUENT ASSEMBLY DEBATES, 1036. Kehar Singh v. Union of India AIR 1989 SC 653; Maru Ram v. Union of India AIR 1980 SC 2141. (2010) 6 SCC 33 49. HOOD PHILLIPS, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 115 (6th ed.). THE CONSTITUTION OF INDIA, 1950, Art. 74 (1).

20

MEMORANDUM ON BEHALF OF APPELLANTS Punjab and Anr.53, and as amended in 197654 makes the same provision.55 The following subsub-contentions will clarify as to how the President is bound:

A.II.1 SHALL IS A MANDATORY CLAUSE 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
53 54 55 56 57 58

Supra Note 35. The Constitution (42nd Amendment) Act, 1976. Supra Note 13, 2048. Supra Note 14, 150 Supra Note 45, 660. Govindlal 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.

59 60 61

DR.B.R. AMBEDKAR, CONSTITUENT ASSEMBLY DEBATES VII, p.724. Supra Note 42. S.P.Anand v. H.D.Devegowda AIR 1997 SC 272 16.

21

MEMORANDUM ON BEHALF OF APPELLANTS 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.66 Hence 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 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
IN THE

INSTANT CASE

IS

62 63 64 65 66 67 68 69 70 71 72 73

The Constitution (44th Amendment ) Act,1978, Proviso. Samsher Singh v. State of Punjab and Anr. AIR 1974 SC 2198 118. AIR 1974 SC 2198. Supra Note 61. D.D. BASU, SHORTER CONSTITUTION OF INDIA, 694 (14 th ed. 2009). Supra Note 45, p.661. Supra Note, 61. Supra Note 14, 150. Supra Note 35. T.K. TOPE, CONSTITUTIONAL LAW OF INDIA, 504 (3rd ed. 2010). Supra Note 13, 2046. AIR 1974 SC 2198.

22

MEMORANDUM ON BEHALF OF APPELLANTS 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 Minister Under 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 PrimeMinister.77 Dismissal of Government the 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 authority80in certain cases the Constitution requires the President to take advice of other authorities.81

74 75 76 77 78 79

Samsher Singh v. State of Punjab AIR 1974 SC 2198 48. Supra Note 23. Supra Note 66, p. 690. DICEY, 10th Ed., p.clv. Samsher Singh v. State of Punjab and Anr. AIR 1974 SC 2198 156. Supra Note 52.

23

MEMORANDUM ON BEHALF OF APPELLANTS 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 UNDER ART. 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

80 81 82 83 84 85 86 87 88

Supra Note 66, p. 692. THE CONSTITUTION OF INDIA, 1950, Arts. 217(3), 103(2). Supra Note 52. Id. THE CONSTITUTION OF INDIA, 1950, Art. 61. Supra Note 13, 2047. CONSTITUTION OF INDIA, 1950, Art 56(1)(b). CONSTITUTION OF INDIA, 1950, Art.61. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 2025 (4 th ed. 1991, Vol. 2).

24

MEMORANDUM ON BEHALF OF APPELLANTS 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 laws in 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.1 MISCHIEF 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 judgment by 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

89 90 91 92

VII CONSTITUENT ASSEMBLY DEBATES 32. Supra Note 88, 2052. (1584) 3 Co.Rep.7a, p. 7b. Anderton v. Ryan (1985) 2 All ER 355 p.359; Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, p. 910. JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 121 (11th ed., 2008) . Supra Note 91. CIT, M.P. and Bhopal v. Sodhra Devi AIR 1957 SC p. 832, 835. JUSTICE G.P.SINGH, PRINCIPLES OF STATUTORY INTERPRETATION, 127, (11 th ed. 2008).

93 94 95 96

25

MEMORANDUM ON BEHALF OF APPELLANTS 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.2 CONSTITUENT ASSEMBLYS POINT OF VIEW FOR INSERTION 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

97 98 99

Supra Note 66, 694. T.K. TOPE, CONSTITUTIONAL LAW OF INDIA, 491, (3rd ed. 2010) THE CONSTITUTION OF INDIA, 1950. Supra Note 88. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, 668, (2 nd ed. 2007). S.P. Gupta v. Union of India AIR 1982 SC 304 199 M.P.JAIN, INDIAN CONSTITUTIONAL LAW, 133, (6thed., 2010).

100 101 102 103

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MEMORANDUM ON BEHALF OF APPELLANTS 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 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.
THE

LAW

UNDER THE

PREVENTION OF CORRUPTION

104 105 106 107 108 109 110

Id., p.134. (1978) 1 SCC (Jour) 1. Supra Note 89, p.132. CAD Volume VII, Date 28.12.1948. Moot Proposition 4. CONSTITUTION OF INDIA, 1950, Art.361. Supra Note 88, 2047.

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MEMORANDUM ON BEHALF OF APPELLANTS 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. In M. 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 in R.S.Nayak v. A.R.Antulay117 the same principle was upheld.118 In P.V.

Narsimha Rao v. State (CBI/SPE)119 the 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

111 112 113 114 115 116 117 118 119

The Prevention of Corruption Act, 1988, 1 (2). Id., 2 (c) (viii). Id., 1988, 2 (b). Prevention of Corruption Act, 1988, Explanation 1 2 (c) . AIR 1979 SC 898. M.Karunanidhi v.Union of India AIR 1979 SC 898 61. AIR 1984 SC 684. R.S.Nayak v. A.R.Antulay AIR 1984 SC 684 3. AIR 1998 SC 2120.

28

MEMORANDUM ON BEHALF OF APPELLANTS 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:

120 121 122 123 124 125 126 127 128

P.V. Narsimha Rao v. State (CBI/SPE) AIR 1998 SC 2120 62. AIR 1998 SC 2120 60. Supra Note 112. CONSTITUTION OF INDIA, 1950, Art.52 & Art.56. AIR 1998 SC 2120 156. Id. CONSTITUTION OF INDIA 1950, Art 53. Supra Note 113. Moot Proposition 4.

29

MEMORANDUM ON BEHALF OF APPELLANTS

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, Hyderabad130 four grounds were laid down in order to substantiate a charge under 13 (1)(e) of Prevention of Corruption
Act, 1988. :

I. II.

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

129 130 131 132 133

Prevention of Corruption Act, 1988, 13 (1)(e) . AIR 1993 SC 313 7. Moot Proposition 4. AIR 2010 SC 1561 4. Moot Proposition 4.

30

MEMORANDUM ON BEHALF OF APPELLANTS

Corruption Act will be firstly applicable for the President of India and secondly 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.1 THE PRESIDENT 1950

HAS

VIOLATED ART. 60

OF THE

CONSTITUTION

OF INDIA,

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.

134 135 136 137 138

Supra Note 88, 2044. CONSTITUTION OF INDIA, 1950, Art 60. BRYAN A GARNER, BLACKS LAW DICTIONARY, (7th ed., 1999). Supra Note 115. Prevention of Corruption Act, 1988, 19 (1) (a).

31

MEMORANDUM ON BEHALF OF APPELLANTS B.III.1.1 PURPOSE 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.1.2 CORRUPTION 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

139 140 141 142

B.R. Sutaria v. N.P. Bhanvadia AIR 1970 SC 765. S.R. Bommai and others etc. etc. v. Union of India and others etc., AIR 1994 SC 1918 109. WEBSTERS NEW ENCYCLOPEDIA DICTIONARY, (Revised ed. 1995,BD&L). D GREENBERG & ALEXANDRA MILLBROOK, STROUDS JUDICIAL DICTIONARY OF WORDS .AND PHRASES, (6th ed., Vol.1, 2000). P.RAMANATHA AIYAR, THE LAW LEXICON, (2 nd ed., 2007). BRYAN A GARNER, BLACKS LAW DICTIONARY, (7th ed., 1999). Moot Proposition 4.

143 144 145

32

MEMORANDUM ON BEHALF OF APPELLANTS 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.

146 147

Supra Note 88, 2047. Supra Note 96.

33

MEMORANDUM ON BEHALF OF APPELLANTS

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)

34