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IN THE HIGH COURT JUDICATURE OF GULMOHAR
CIVIL ORIGINAL JURISDICTION
CIVIL WRIT PETITION NO. ___ OF 2021
IN
REGULAR APPEAL NO. ___ OF 2021
MR. GIDUGA …...PETITIONER
VERSUS
STATE OF GULMOHAR …...RESPONDENT
:INDEX:
SR. NO Exhs. Particulars Page No. 1 ----- Synopsis 2 ----- Memo of written statement
(^3) “A” Copy of the impugned Last Page…...
2 ----- Civil society organizations in Gulmohar organizes biggest demonstration in the state capital. Demonstration was held demanding the state government to save the Gulmohri speaking people from “being swamped by outsiders”. 3 ----- Submitted list of demands to end the demonstration, most prominent being the demand of 60% reservation in jobs in all sectors. 4 ---- CM. Ms. Azhilu accepted the demand, but was opposed by cabinet minister Mr. Giduga, who is not a native Gulmohri but had settled in the state in the last few decades. 5 ----- Draft was prepared and presented in the cabinet by the CM and was approved by the cabinet after an acrimonious debate. Mr. Giduga along with two other ministers resigned protesting the bill.
6 30/06/2021 The Gulmohar (Promotion and Protection of Gulmohari) Bill, 2021 (hereinafter referred to as “the bill”) was presented in the Assembly and seeing opposition within the party, the CM introduced it as a money bill and the same was certified by the speaker. A whip was issued by the GRP to its members to vote in favour of the bill, but Mr. Giduga and 30 members voted against the bill. However, the 31 votes were invalidated because of the whip and they were disqualified as MLAs. The bill was passed with a margin of 143 to 125. 7 ---- The bill was challenged in the High Court of Gulmohar by Mr. Giduga on the ground that it is against the Constitution of Sapota, specifically in the context of the requirement for private enterprises to give preference to native Gulmoharis in employment.
given that she has 48- hours to invite her to form the government. 11 ---- Before completion of the deadline, the governor announced that she would be inviting Ms. Azhilu to form the government, since the text under the constitution did not contain anything related to “post-poll alliance”. 12 --- Mr. Giduga again moved to the High Court against the 2020 amendment which dictated the governor how to invite the legislative party leaders to form the government, asking for a stay in the swearing in of Ms Azhilu and that the governor be directed to swear him in instead. Ms Azhilu’s lawyer agreed to a stay given that the court also hears the case of constitutional validity of the bill along with the present case at an early
date. The court agreed and referred the case to a Bench of Five judge. : ACTS TO BE REFERRED:
1. Civil Procedural Code 2. Sapotian Evidence Act 3. Constitution of Sapota : AUTHORITIES TO BE CITED: Nil at present. Date: 11- 05 - 2021 Saptadip Nandi Chowdhury Place: High Court of Gulmohar Advocate for Respondent
TO,
THE HON’BLE CHIEF JUSTICE AND HIS COMPANION
JUDGES OF THE HIGH COURT OF GULMOHAR
HUMBLE WRITTEN STATEMENT BY THE
RESPONDENTS.
MOST RESPECTFULLY SHEWITH
- The respondent states that they are richest state in the Republic of Sapota.
- The petitioner states that they have filed the current writ petition article 226 of the Constitution of Sapota, the respondent would humbly like to submit that the suit is not maintainable as the power of this court is limited when there is availability of an alternate remedy which in this case is filing an election petition. It is humbly contended that where elections are held in accordance with the provisions of a statute that provides a remedy for resolving election disputes by filing an election petition with a tribunal, that remedy should be used exclusively and that recourse to proceedings under Art. 226 should be avoided, as stipulated under Art. 329(b) of the Constitution.
- The petitioner states that the act violates Article 14 of the Constitution of Sapota, the respondent would like to submit that it is in consonance with the provisions of the constitution. Equal protection of law never implies that law must be generic and universal. Article 14 promotes equality with reasonable restrictions, and such restrictions must be determined from the perspective of the general public.
- The petitioner states that one of the criteria (either of whose parents was born in Gulmohar), for determining a person as a native Gulmohari is discriminatory in nature. The respondent most humbly attempts to draw attention of this court to the fact that similar is the criteria for determining Sapotian citizenship.
- The respondent states the hon’ble court has previously held that a person who was born into the upper class but later shifted to the lower class by adoption or marriage cannot benefit from the lower-class reservation to which he was
provision. It is optional and would ensure steady inflow of revenue for the state. Furthermore, if locals are employed, there will be a continuous and reliable supply of labor. Additionally, Art. 29 attempts to preserve a community's unique language and is not restricted to the public sector and as such it allows for private sector regulation as well. Besides , labor and employment laws are subjects of the Concurrent List, and by virtue of the same, the State can decide the terms and conditions of employment within its territory.
- The respondent further submits that while there has been no outright ban on the employment of non-native Gulmoharis, just a portion of the already restricted vertical category of government posts has been reserved horizontally. If 65% of native Gulmoharis are not enrolled in the private sector, a penalty will be imposed.
- The respondent states that the 2020 Amendment to the constitution does not violate the basic structure of the constitution of the Sapota. It is most humbly submitted by the Counsel for the Respondent that although Art.` 105 and
194(1) confers upon the MPs and the MLAs the right to free speech, the same is not absolute and is subject to the Constitution's restrictions as well as the House's rules and standing orders.
- The respondent most humbly brings into notice of this Hon’ble court the fact that the amendment was brought in after carefully analysing the situation of the 10th^ schedule in India, and was passed unanimously without even a single vote against it. It is further stated that the presumption of misuse of power by issuing whips cannot be held against the constitutional nature of the same.
- The Constitution is flexible to meet the demands of changing times and as such this flexibility is a part of the Basic Structure Doctrine. This Amendment should be adjudged as an application of such a nature of the Constitution in the light of the pressing needs, thereby it is not violative of the Basic Structure Doctrine.
- The respondent most humbly states that in the event of no party getting the majority, the governor has the discretion to ask any political party to prove majority. In the instant matter, the Governor, very rightly and responsibly resorted to seeking legal and constitutional advice as regards the matter, and decided upon choosing Ms. Azhilu to form the Government as the Constitution did not recognise the concept of “post-poll” alliances.
- The respondents the states that post-poll alliances are argued to be a clear violation of the people's mandate, which is the most important aspect of a democracy. If a member contests from one party before the conclusion of the elections, and then switches after the election, the people's mandate is weakened.
- The appellant craves leave to add, alter, amend or substitute all or any of the grounds mentioned hereinabove with the permission of this Hon’ble court.
- The appellant states that he does not have any alternate remedy but to approach this Hon’ble court in the interest of justice.
- The appellant states that this Hon’ble court has full jurisdiction to admit, entertain decide and dispose of this civil appeal.
- The appellant states that he has not approached at all the Hon’ble Supreme Court or any other Hon’ble High Court by way of any Writ petition or Application or Appeal in respect of the same subject matter.
- The respondent most respectfully states that, a. The hon’ble court be pleased to dispose of the petition. b. Pleased to declare the Gulmohar (Promotion and Protection of Gulmohari) Act, 2021 is constitutionally valid. c. Pleased to declare that, the 2020 Amendment to the constitution does not violates the Basic Structure of the Sapota Constitution.
