appealant memo format

TTEAMEAM C CODEODE: 36 : 36

77THTH A ANNUALNNUAL

NALSAR JNALSAR JUSTICEUSTICE B BODHODH R RAJAJ S SAWHNYAWHNY

MMEMORIALEMORIAL M MOOTOOT C COURTOURT C COMPETITIONOMPETITION, 2013, 2013

NALSAR, HNALSAR, HYDERABADYDERABAD

IINN T THEHE

HHONON’’BLEBLE

SSUPREMEUPREME C COURTOURT OFOF I INDIANDIA

A ATT N NEWEW D DELHIELHI

RREFERENCEEFERENCE C CONCERNINGONCERNING THETHE A APPOINTMENTPPOINTMENT OFOF THETHE C COMPTROLLEROMPTROLLER ANDAND

AAUDITORUDITOR G GENERALENERAL OFOF I INDIANDIA

PPRESIDENTIALRESIDENTIAL R REFERENCEEFERENCE N NOO. 1 . 1 OFOF 2025 2025

IINN R REE: : THETHE A APPOINTMENTPPOINTMENT OFOF THETHE C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL

OFOF I INDIANDIA, 2025, 2025

-M-MEMORIALEMORIAL O ONN B BEHALFEHALF OFOF T THEHE G GOVERNMENTOVERNMENT OFOF I INDIANDIA--

TABLE OF CONTENTS

IINDEXNDEX O OFF A AUTHORITIESUTHORITIES.................................................................................................................................... IVIV

AABBREVIATIONSBBREVIATIONS......................................................................................................................................................VIIVII

SSTATEMENTTATEMENT OFOF J JURISDICTIONURISDICTION..................................................................................................................VIIIVIII

SSTATEMENTTATEMENT OFOF F FACTSACTS........................................................................................................................................ IXIX

IISSUESSSUES R RAISEDAISED............................................................................................................................................................XX

SSUMMARYUMMARY OFOF A ARGUMENTSRGUMENTS..............................................................................................................................XIXI

AARGUMENTSRGUMENTS A ADVANCEDDVANCED......................................................................................................................................11

1.1. WWHETHERHETHER THETHE P PRESIDENTIALRESIDENTIAL R REFERENCEEFERENCE N NUMBERUMBER 1 1 OFOF 2025 2025 ISIS

MMAINTAINABLEAINTAINABLE............................................................................................................................................................11

1.11.1 TTHEHE SATISFACTIONSATISFACTION OFOF U UNIONNION G GOVERNMENTOVERNMENT WOULDWOULD AMOUNTAMOUNT TOTO THETHE

SATISFACTIONSATISFACTION OFOF P PRESIDENTRESIDENT FORFOR THETHE PURPOSESPURPOSES OFOF A ARTICLERTICLE 143(1). 143(1).. . .. . .11

1.1.11.1.1 TTHEHE P PRESIDENTRESIDENT ISIS ANAN ABBREVIATIONABBREVIATION FORFOR THETHE C CENTRALENTRAL

GGOVERNMENTOVERNMENT................................................................................................................................................22

1.21.2 TTHEHE H HONOURABLEONOURABLE S SUPREMEUPREME C COURTOURT SHOULDSHOULD CONFINECONFINE ITSELFITSELF MERELYMERELY

TOTO THETHE QUESTIONSQUESTIONS REFERREDREFERRED TOTO ITIT..............................................................................................22

1.2.11.2.1 IITT ISIS OBLIGATORYOBLIGATORY FORFOR THETHE H HONOURABLEONOURABLE S SUPREMEUPREME C COURTOURT TOTO

ANSWERANSWER THETHE R REFERENCEEFERENCE....................................................................................................................33

1.2.1.11.2.1.1....TTHEREHERE WEREWERE NONO GOODGOOD OROR PROPERPROPER REASONSREASONS TOTO DECLINEDECLINE THETHE

REFERENCEREFERENCE................................................................................................................................................33

MMEMORIALEMORIAL ONON BEHALFBEHALF OFOF T THEHE G GOVERNMENTOVERNMENT OFOF I INDIANDIA

IIII

1.2.1.21.2.1.2................TTHEHE PLEAPLEA FORFOR MALAMALA FIDEFIDE INTENTIONINTENTION OFOF THETHE AUTHORITYAUTHORITY

MAKINGMAKING AA REFERENCEREFERENCE SHOULDSHOULD NOTNOT BEBE CONSIDEREDCONSIDERED............................................44

2.2. WWHETHERHETHER THETHE P PRESIDENTRESIDENT OFOF I INDIANDIA ISIS BOUNDBOUND BYBY THETHE ADVICEADVICE OFOF U UNIONNION

CCABINETABINET WHILEWHILE A APPOINTINGPPOINTING C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL OFOF

IINDIANDIA..............................................................................................................................................................................44

2.12.1 AAPPOINTMENTPPOINTMENT OFOF C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL OFOF I INDIANDIA ISIS

ANAN EXECUTIVEEXECUTIVE FUNCTIONFUNCTION ININ EXERCISEEXERCISE OFOF WHICHWHICH P PRESIDENTRESIDENT ISIS ALWAYSALWAYS

BOUNDBOUND BYBY THETHE ADVICEADVICE OFOF U UNIONNION C CABINETABINET..............................................................................44

2.1.12.1.1 AAPPOINTMENTPPOINTMENT OFOF C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL OFOF

IINDIANDIA ISIS ANAN EXECUTIVEEXECUTIVE FUNCTIONFUNCTION OFOF P PRESIDENTRESIDENT........................................................55

2.1.22.1.2 IINN EXERCISEEXERCISE OFOF EXECUTIVEEXECUTIVE FUNCTIONFUNCTION THETHE P PRESIDENTRESIDENT ISIS ALWAYSALWAYS

BOUNDBOUND BYBY THETHE ADVICEADVICE OFOF U UNIONNION C CABINETABINET........................................................................66

2.1.22.1.2 TTHEHE P PRESIDENTRESIDENT ISIS TOTO EXERCISEEXERCISE THISTHIS FUNCTIONFUNCTION THROUGHTHROUGH

OFFICERSOFFICERS SUBORDINATESUBORDINATE TOTO HIMHIM WHOWHO HAVEHAVE BEENBEEN JUDICIALLYJUDICIALLY

INTERPRETEDINTERPRETED ASAS M MINISTERSINISTERS OROR U UNIONNION OFOF M MINISTERSINISTERS OFOF THETHE C CABINETABINET..66

2.1.32.1.3 TTHEHE P PRESIDENTRESIDENT CANNOTCANNOT EXERCISEEXERCISE EXECUTIVEEXECUTIVE POWERPOWER WITHOUTWITHOUT

THETHE AIDAID ANDAND ADVICEADVICE OFOF THETHE C COUNCILOUNCIL OFOF M MINISTERSINISTERS ASAS PERPER THETHE I INDIANNDIAN

CCONSTITUTIONONSTITUTION..............................................................................................................................................77

2.1.3.12.1.3.1..AARTRT 74(1) 74(1) OFOF THETHE C CONSTITUTIONONSTITUTION ISIS MANDATORYMANDATORY ININ NATURENATURE..

77

2.1.3.22.1.3.2..TTHEHE P PRESIDENTRESIDENT ISIS ONLYONLY AA FORMALFORMAL OROR CONSTITUTIONALCONSTITUTIONAL HEADHEAD

OFOF THETHE EXECUTIVEEXECUTIVE ANDAND THATTHAT THETHE REALREAL EXECUTIVEEXECUTIVE POWERPOWER AREARE VESTEDVESTED

ININ M MINISTERSINISTERS OROR THETHE C CABINETABINET................................................................................................88


IIIIII

2.22.2 TTHEHE APPOINTMENTAPPOINTMENT OFOF C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL OFOF

IINDIANDIA DOESDOES NOTNOT COMECOME UNDERUNDER THETHE DISCRETIONARYDISCRETIONARY POWERPOWER OFOF THETHE

PPRESIDENTRESIDENT........................................................................................................................................................1010

PPRAYERRAYER..........................................................................................................................................................................1212

IINDEXNDEX O OFF A AUTHORITIESUTHORITIES

CCASESASES R REFERREDEFERRED

1. A Sanjevi Naidu v. State of Madaras, (1970) 3 SCR 505....................................................8

2. Anand Kumar v. Katteael Bhaskaran (1988) 2 SCC 50....................................................10

3. Bijoy Cotton Mills v. State of West Bengal, AIR 1967 SC 1145.........................................6

4. Chandrika Jha v. State of Bihar, AIR 1984 SC 332............................................................5

5. Emperor v. Sibnath, AIR 1945 PC 156 (162-163)..............................................................7

6. G.D. Zalani; B.L. Wadhera v. Union of India, AIR 1998 Del. 436....................................1

7. In Re. Reference under Art. 143 of Constitution of India, AIR 1965 SC 745.....................3

8. In Re: Presidential Poll, AIR 1974 SC 1682......................................................................2

9. In Re: Special Reference No.1 of 2012, [2012] 9 SCR 311.................................................4

10. In Re: The Kerala Education Bill, 1957, AIR 1958 SC 956............................................2.3

11. In Re: The Special Courts Bill, 1978, AIR 1979 SC 478....................................................3

12. K. Ananda Nambiar v. Govt. of Madaras, AIR 1966 SC 657.............................................8

13. Keshar Singh v. Union of India, AIR 1989 SC 563.............................................................9

14. Madhavrao Scindia v. Union of India, AIR 1971 SC 530...................................................6

15. Maru Ram v. Union of India, AIR 1980 SC 2147............................................................2,9

16. R.C.Cooper v. Union of India, AIR 1970 SC 564............................................................8,9


IVIV

17. Ram Jwaya Kapur v. State of Punjab, (1955) 2 SCR 225...................................................5

18. Rameshwar Parasd and Ors. v. Union of India and Anrs., AIR 2006 SC 980...................2

19. S R Bommai v. Union of India, AIR 1994 SC 1918............................................................7

20. S.N. Ghosh v. B.L. Cotton Mills, AIR 1959 Cal. 552..........................................................7

21. S.P Gupta v. President of India and Ors., AIR 1982 SC 149.............................................6

22. Samsher Singh vs State of Punjab, (1974) 2 SCC 831..........................................1,5,7,9,10

23. Sanjeevi v. State of Madaras, AIR 1970 SC 1102............................................................6,8

24. Shiv Bahadur v. State of U.P., (1953) SCR 1188 (1210)....................................................7

25. State of M.P. v. Yashwant Trimabak, (1996) 2 SCC 305....................................................5

26. Supreme Advocate’s on Record Association v. Union of India, AIR 1994 SC 268..........10

27. UN Rao v. Indira Gandhi, AIR 1971 SC 1002.................................................................7,9

28. Union of India v. Jyoti Prakash Mishra AIR 1971 SC 1093.............................................10

29. Union of India v. Sripathi Rajan AIR 1975 SC 1755..........................................................8

LLEGALEGAL T TEXTEXT

1. The Constitution of India, 1950.

BBOOKSOOKS R REFERREDEFERRED

1. D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, VOLUME 4, 8TH ED.,

LEXIS NEXIS BUTTERWORTHS WADHWA NAGPUR, (2008)

2. D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, VOLUME 5, 8TH ED.,

LEXIS NEXIS BUTTERWORTHS WADHWA NAGPUR, (2008)

3. D.D. BASU, SHORTER CONSTITUTION OF INDIA, VOLUME 1, 14TH ED., LEXIS NEXIS

BUTTERWORTHS WADHWA NAGPUR, (2009)

4. G. AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION, 1ST ED.,

OXFORD UNIVERSITY PRESS, (1972)


VV

5. H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, VOLUME 2, 4TH ED., UNIVERSAL

LAW PUBLISHING CO. PVT. LTD. (1993)

6. H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, VOLUME 3, 4TH ED., UNIVERSAL

LAW PUBLISHING CO. PVT. LTD. (1996)

7. I.P. MASSEY, ADMINISTRATIVE LAW, 7TH ED., (2008)

8. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 6TH ED., LEXIS NEXIS BUTTERWORTHS

WADHWA NAGPUR, (2010)

9. V.N. SHUKLA, CONSTITUTION OF INDIA, 11TH ED., EASTERN BOOK COMPANY, (2008)

10. SHIVA RAO, THE FRAMING OF INDIA’S CONSTITUTION, VOLUME 2, UNIVERSAL LAW

PUBLISHING CO. PVT. LTD. (2010)


VIVI

AABBREVIATIONSBBREVIATIONS

§ Section

¶ Paragraph

A.I.R. All India Reporter

Anr. Another

A.P. Andhra Pradesh

Art. Article

CAD Constitutional Assembly Debates

CAG Comptroller and Auditor General

Co. Company

CVC Chief Vigilance Commissioner

Ed. Edition

etc. Etcetera

Id. Ibid

M.P. Madhya Pradesh

p. Page

Re. Reference

Rep. Report

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reports

U.O.I. Union of India

U.P. Uttar Pradesh


VIIVII

SSTATEMENTTATEMENT OFOF J JURISDICTIONURISDICTION

The Union of India has approached for the advice of this Hon’ble Supreme Court of IndiaThe Union of India has approached for the advice of this Hon’ble Supreme Court of India

under Art 143(1) of the Constitution of India.under Art 143(1) of the Constitution of India.


VIIIVIII

SSTATEMENTTATEMENT OFOF F FACTSACTS

On 21 November 2024, Mr. Arunobh Banerjee, took oath as the President of India.

The Cabinet recommended to the President that Mr. Vinod Sinha be appointed as the

Comptroller and Auditor General of India. The unanimous decision of the Union

Cabinet in this regard, was conveyed by the Cabinet Secretary and the PMO to the

Principal Secretary to the President of India on 4.12.2024. The President, through the

Principal Secretary, addressed a letter voicing his opposition to the appointment on

18.12.2024.

On 20.12.2024, the emergency meeting of the Union Cabinet resolved to reiterate its

recommendation dated 4.12.2024. On Christmas Eve, the President issued a warrant

appointing Mr. SK Iyengar as the Comptroller and Auditor General of India.

On 2.1.2025, the Union of India filed Presidential Reference 1 of 2025 before the

Supreme Court of India, on the advice of the Attorney General of India. The specific

question raised in the backdrop of the events of December 2024, was- Whether the

President of India is bound by the advice of the Union Cabinet while appointing the

Comptroller and Auditor General of India?

On 4.1.2025, the Principal Secretary to the President of India filed an affidavit in

Presidential Reference 1 of 2025, upon instructions from the President, stating that the


IXIX

President was not consulted at the time of preferring the Presidential Reference. The

affidavit disputed the validity of the reference.

IISSUESSSUES R RAISEDAISED

The following questions have been raised before this Hon’ble Supreme Court to consider:

I.I.

WWHETHERHETHER THETHE P PRESIDENTIALRESIDENTIAL R REFERENCEEFERENCE N NUMBERUMBER 1 1 OFOF 2025 2025 ISIS M MAINTAINABLEAINTAINABLE

II.II.

WWHETHERHETHER THETHE P PRESIDENTRESIDENT OFOF I INDIANDIA ISIS BOUNDBOUND BYBY THETHE ADVICEADVICE OFOF U UNIONNION C CABINETABINET

WHILEWHILE A APPOINTINGPPOINTING THETHE C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL OFOF I INDIANDIA


XX

SSUMMARYUMMARY OFOF A ARGUMENTSRGUMENTS

I.I. WWHETHERHETHER THETHE P PRESIDENTIALRESIDENTIAL R REFERENCEEFERENCE 1 1 OFOF 2025 2025 ISIS M MAINTAINABLEAINTAINABLE..

Yes. The Presidential Reference 1 of 2025 filed is maintainable under Art.143 (1) of the

Constitution because the article requires the satisfaction of President which is actually the

satisfaction of Union of Ministers for all matters of the Union. Moreover, the Court cannot go

beyond the recitals of the reference in order to give advisory reference. The reference can

only be declined on ground of good reasons which is not present in the instant reference.

Therefore it is humbly submitted before the Honourable Court that the Presidential Reference

is maintainable.

II.II. WWHETHERHETHER THETHE P PRESIDENTRESIDENT OFOF I INDIANDIA ISIS BOUNDBOUND BYBY THETHE ADVICEADVICE OFOF U UNIONNION

CCABINETABINET WHILEWHILE APPOINTINGAPPOINTING THETHE C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL

OFOF I INDIANDIA..

Yes. The President of India is bound by the advice of Union Cabinet in appointment of

Comptroller and Auditor General of India because Art. 74 expressly provide that the

President in exercise of any of its executive function shall be bound by the aid and advice of

Union Cabinet. Moreover, the appointment of Comptroller and Auditor General of India does


XIXI

not come under any of the constrained discretionary sphere which is provided under the

Constitution. Therefore, it is humbly submitted before the Honourable Court that the

President is bound by the advice of Union Cabinet.


XIIXII

AARGUMENTSRGUMENTS A ADVANCEDDVANCED

1.1.WWHETHERHETHER THETHE P PRESIDENTIALRESIDENTIAL R REFERENCEEFERENCE N NUMBERUMBER 1 1 OFOF 2025 2025 ISIS

MMAINTAINABLEAINTAINABLE

The side humbly submits that the Presidential Reference 1 of 2025, filed by Union

of India on 2.1.2025 before this Honourable Court is maintainable. The submission is

twofold; firstly that the Article 143(1) of the Indian Constitution requires satisfaction

of President and satisfaction of Union cabinet is the satisfaction of President and

secondly, that the Honourable Court should not go beyond the reference while

exercising its advisory jurisdiction.

1.11.1 The satisfaction of Union Government would amount to the satisfaction of PresidentThe satisfaction of Union Government would amount to the satisfaction of President

for the purposes of Article 143(1).for the purposes of Article 143(1).

It is humbly submitted that what Article 143(1) of the Constitution of India

requires for filing of a Presidential Reference is the President’s satisfaction1and it is

not correct to say that the President is to be satisfied personally in exercising this

power. The President is only a formal or constitutional head who exercises the powers

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

1 MP JAIN, INDIAN CONSTITUTIONAL LAW, 269, (6th Edition, 2010).


11

Ministers’2. The President’s opinion, satisfaction or decision is constitutionally

secured when his Ministers arrive at such opinion, satisfaction or decision.3

1.1.1 The President is an abbreviation for the Central Government.The President is an abbreviation for the Central Government.

The President is an abbreviation for the Central Government.4 Whether it is

'subjective' or 'objective' satisfaction of the President or it is his 'discretion' or

'opinion', this much is quite clear that the President cannot exercise his powers under

the Constitution on wish or whim.5

Even though the President is Competent to refer any question he pleases to the Supreme

Court, it is judicially acknowledged that the chief utility of an advisory judiciary opinion is to

enable the Government to secure an authoritative opinion as to validity of a measure.6 It

provides guidance to the government on questions of his legal powers and may promptly

remove any cloud of uncertainty in the public mind.7

Therefore, it is humbly submitted that since the satisfaction required by the President in filing

the Presidential Reference is actually the satisfaction required by the Union Cabinet in the

light of above arguments, so the aforesaid reference can be said to be maintainable.

1.21.2 The Honourable Supreme Court should confine itself merely to the questionsThe Honourable Supreme Court should confine itself merely to the questions

referred to it.referred to it.

The Supreme Court while exercising its advisory jurisdiction has to confine

itself to the questions referred to it, i.e., it cannot go beyond the reference.8 The truth

2 Samsher Singh v. State of Punjab, AIR 1974 SC 2192.3 G.D. Zalani v. Union of India, AIR 1995 SC 1178; B.L. Wadhera v. Union of India, AIR 1998 Del. 436.4 Maru Ram v. Union of India, AIR 1980 SC 2147.5 Rameshwar Parasd and Ors. v. Union of India and Anrs., AIR 2006 SC 980 .6 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 6014,( 8th Edition, Vol. 5, 2008).7 MP JAIN, INDIAN CONSTITUTIONAL LAW, 270, ( 6th Edition, 2010).8 In Re: The Kerala Education Bill, 1957, AIR 1958 SC 956.


22

or otherwise of the facts cannot be enquired or gone into the questions of bona fides

or otherwise of the authority making the reference.9

1.2.11.2.1 It is obligatory for the Honourable Supreme Court to answer the Reference.It is obligatory for the Honourable Supreme Court to answer the Reference.

In re: Allocation of Lands and Buildings Situate, in a Chief Commissioner's

Province and in the matter of Reference by the Governor-General under S. 213,

Government of India Act, 193510, the Federal Court had said that even though the

Court is within its authority to refuse to answer a question on a reference, it must be

unwilling to exercise its power of refusal "except for good reasons."

1.2.1.1 There were no good or proper reasons to decline the reference.There were no good or proper reasons to decline the reference.

` In Re: The Kerala Education Bill, 195711 the Honourable Supreme Court observed

that opinion on a reference under Article 143(1), may be declined in a "proper case" and "for

good reasons". When a reference is received by the Court under Art.143(1), the Court may, in

the given case, for sufficient and satisfactory reasons, respectfully refuse to make a report

containing its answers on the questions framed; such a situation may perhaps arise if the

questions formulated for the advisory opinion of the Court are purely socio-economic or

political questions which have no relation whatever with any of the provisions of the

Constitution, or have otherwise no constitutional significance.12

Hence it is humbly submitted that since in the instant case, the question framed is purely

related to constitutional scheme of the country and pertaining to legal issues, wherein it is the

duty of the Court to answer such purely constitutional issue,13 therefore the reference made is

maintainable on all grounds.

9 In Re: Presidential Poll, AIR 1974 SC 1682.10 AIR (30) 1943 FC 13.11 AIR 1958 SC 956.12 In Re: Reference under Art 143 of Constitution of India, AIR 1965 SC 745.13 In Re: The Special Courts Bill, 1978, AIR 1979 SC 478.


33

1.2.1.21.2.1.2 The plea for mala fide intention of the authority making a reference should not beThe plea for mala fide intention of the authority making a reference should not be

consideredconsidered

As far as the allegation of mala fide is concerned, it is trite that this Court is

neither required to go into the truth or otherwise of the facts of the recitals nor can it

go into the question of bona fides or otherwise of the authority making a reference. To

put it differently, the constitutional power to seek opinion of this Court rests with the

President. The only

discretion this Court has is either to answer the reference or respectfully decline to

send a

report to the president. Therefore, the challenge on the ground of mala fide, as raised,

is unsustainable.14

2.2. WWHETHERHETHER THETHE P PRESIDENTRESIDENT OFOF I INDIANDIA ISIS BOUNDBOUND BYBY THETHE ADVICEADVICE OFOF U UNIONNION C CABINETABINET

WHILEWHILE A APPOINTINGPPOINTING C COMPTROLLEROMPTROLLER ANDAND A AUDITORUDITOR G GENERALENERAL OFOF I INDIANDIA..

The side humbly submits that the President of India is bound by the advice of

Union Cabinet in the appointment of the Comptroller and Auditor General. The

submission is two folds, Firstly that the appointment of Comptroller and Auditor is an

executive function of the President and exercise of this function is bound by the

advice of the Union Cabinet. Secondly, the appointment of Comptroller and Auditor

General of India under article 148 of the Constitution of India does not come under

the exceptions under which President have discretion to exercise his powers.

14 In Re: Special Reference No.1 of 2012, [2012] 9 SCR 311.


44

2.12.1 Appointment of Comptroller and Auditor General of India is an executive function inAppointment of Comptroller and Auditor General of India is an executive function in

exercise of which President is always bound by the advice of Union Cabinetexercise of which President is always bound by the advice of Union Cabinet

It is humbly submitted before this Honourable Court that the appointment of Comptroller and

Auditor General of India is an executive function in exercise of which President is always

bound by the advice of Union Cabinet and is bound to follow the aid and advice of the

Council of Ministers.

2.1.1 Appointment of Comptroller and Auditor General of India is an executiveAppointment of Comptroller and Auditor General of India is an executive

function of Presidentfunction of President

The ‘executive power of the Union’ is vested in the President of India.15 In Ram

Jwaya Kapur v. State of Punjab16it was mentioned by Supreme Court that it may not

be possible to frame an exhaustive definition of what executive powers mean and

implies. Executive power connotes the residue of governmental functions that remain

after legislative and judicial functions are taken away.17 All powers and functions of

the President except his legislature powers under Article 12318 are executive powers

of the Union vested in the President under the article 53(1).19 One of the principal

head of the executive powers of the Union is the ‘administrative power’20 of the

Union in which the President, not being the real head of the Executive, shall not have

any administrative functions to discharge nor shall he have the power of control and

supervision over the Departments of Government,21which includes the power to,

appoint and remove the high dignitaries of the State and the other administrative

15 Article 53(1), Constitution of India, 1950.16 (1995) 2 SCR 225.17 State of M.P. v. Yashwant Trimabak, (1996) 2 SCC 305; Chandrika Jha v. State of Bihar, AIR 1984 SC 332.18 Constitution of India, 1950.19 Samsher Singh v. State of Punjab, AIR 1974 SC 2192: (1974) 2 SCC 831.20 Seventh Schedule, Constitution of India, 1950.21 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 4351, (8th Edition, 2008, Vol. 4).


55

commissions which include the appointment of The Comptroller and Auditor General

of India.22

Since the question of appointment or dismissal falls within the ambit of a purely executive

function of the President.23 Therefore it can be well ascertained that appointment of CAG of

India is the executive function of the President.

2.1.22.1.2 In exercise of executive function the President is always bound by the advice ofIn exercise of executive function the President is always bound by the advice of

Union CabinetUnion Cabinet

Although, the executive power of the Union is vested in the President, actually,

in practice, it is carried on by the Ministers and other official and the President’s

personal satisfaction is not necessary.24 The President is only a formal or

constitutional head of the executive and acts on the aid and advice of the Council of

Ministers,25whereby the real executive powers are vested in the Ministers or the

Cabinet.26 The place of the President in the administration is that of a ceremonial

device on a seal by which the nation’s decisions are made known. The President can

do nothing contrary to the advice of the Council of Ministers nor can he do anything

without their advice.27

2.1.22.1.2 The President is to exercise this function through officers subordinate to him whoThe President is to exercise this function through officers subordinate to him who

have been judicially interpreted as Ministers or Union of Ministers of the Cabinethave been judicially interpreted as Ministers or Union of Ministers of the Cabinet

22 Art. 148, Constitution of India, 1950.23 Madhavrao Scindia v. Union of India, AIR 1971 SC 530.24 Bijoy Cotton Mills v. State of West Bengal, AIR 1967 SC 1145; A. Sanjeevi v. State of Madaras, AIR 1970 SC

1102.25 M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 154, (6th ed. 2010); S.P Gupta v. President of India and Ors.

AIR 1982 SC 149.26 Ram Jawaya v. State of Punjab, AIR 1955 SC 549.27 VII CONSTITUENT ASSEMBLY DEBATES 32.


66

The Constitution of India provides that the President can exercise his functions

either directly or through officers subordinate to him.28 In the context of President

exercising executive powers personally, reference may be given to observations made

by the Honourable Supreme Court in Samsher Singh v. State of Punjab,29 in which it

was said that the reason why Article 361 of the Indian Constitution makes the

President immune from any legal action for any executive action done by him is that

“neither the President nor the Governor exercises the Executive function individually

or personally”. Therefore the President is to exercise this function through officers

subordinate to him who have been judicially interpreted as Ministers or Union of

Ministers of the Cabinet.30

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

Council of Ministers as per the Indian Constitution.Council of Ministers as per the Indian Constitution.

Moreover, the exercise of such power should be “in accordance to the

Constitution”,31 the words are important inasmuch as they control the President’s

action under article 53(1) of the Constitution of India. Any exercise of executive

power not in the accordance with the Constitution will be unconstitutional and liable

to be set aside.32 Thus by reason of Article 74(1) of Constitution of India, all the

executive powers of the President, whether he exercises them directly or through

subordinates, can be exercised only on the advice of the Council of Ministers.33

28 Article 53, CONSTITUTION OF INDIA, 1950.29 AIR 1974 SC 2192.30 Emperor v. Sibnath, AIR 1945 PC 156 (162-163); S.N. Ghosh v. B.L. Cotton Mills, AIR 1959 Cal. 552; Shiv

Bahadur v. State of U.P., (1953) SCR 1188 (1210).31 Article 53, CONSTITUTION OF INDIA, 1950.32 UN Rao v. Indira Gandhi, AIR 1971 SC 1002: (1971) 2 SCC 63.33 Samsher Singh v. State of Punjab, AIR 1974 SC 2192; S R Bommai v. Union of India, AIR 1994 SC 1918

(para. 252).


77

2.1.3.1 Art 74(1) of the Constitution is mandatory in nature.Art 74(1) of the Constitution is mandatory in nature.

Article 74(1) of the Constitution is mandatory in nature and therefore the

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

of Ministers.34 The President normally acts in all matters including promulgation of an

ordinance, on the advice of council of ministers.35 The Constitution of India

conclusively contemplates a constitutional President and any reference to the

President under any rule made under the Constitution must need to be the President as

constitutional head acting with the aid and advice of the Council of Ministers.36

Whether the functions exercised by the President are the functions of the Union or are

the functions of the President, they have to be equally exercised with the aid and

advice of Council of Ministers.37

2.1.3.22.1.3.2 The President is only a formal or constitutional head of the executive and that the realThe President is only a formal or constitutional head of the executive and that the real

executive power are vested in Ministers or the Cabinetexecutive power are vested in Ministers or the Cabinet

Our Constitution has adopted the British system of a Parliamentary executive,

that the President is only a formal or constitutional head of the executive and that the

real executive power are vested in Ministers or the Cabinet.38

Dr. AMBEDKAR thus made it clear that:

“The President of Indian Union will be generally bound by the advice of his

Ministers. He can do nothing contrary to their advice nor can he do anything without

their advice. The President of the United States can dismiss any Secretary at any

34 Ibid.35 R.C.Cooper v. Union of India, AIR 1970 SC 564: (1970) 1 SCC 448.36 Union of India v. Sripathi Rajan AIR 1975 SC 1755; Sanjeevi v. State of Madaras AIR 1970 SC 1102; K.

Ananda Nambiar v. Govt. of Madaras AIR 1966 SC 657.

37 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 2033, (4th Edition, vol. II).

38 Ram Jawaya v. State of Punjab, AIR 1955 SC 549; A Sanjevi Naidu v. State of Madaras, (1970) 3 SCR 505.


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time. The President of Indian Union has no power to do so, so long as his ministers

command a majority in Parliament.39 He is nominally a figure-head and has no

discretion and no powers of administration at all.40”

Acceptance by the President of the advice tendered by the Council of Ministers has become

obligatory particularly after the 42nd Constitutional Amendment.41 Even before this

Amendment, the Supreme Court had in number of cases, held that the President is bound to

act with the aid and advice of the ministers.42Before 1976, Art. 74(1) merely said that the

council of ministers is to ‘aid and advice’ the President in the exercise of his functions.

Originally there was no provision in the Constitution to make ministerial advice binding on

the President, but for all the practical purposes, this was so. The position by and large had

crystallized before 1976 that the President was more or less a titular head of the executive and

was bound by the advice of the ministers. The effective executive power lies with the Prime

Minister and the ministers who constitute the real executive of the Union.43After 1976

Amendment the same principle was reiterated in G.D.Zalani v. Union of India44 wherein it

was held that “The President is the constitutional or formal head. The President exercises

powers and functions conferred on him by or under the Constitution on the aid and advice of

his council of Ministers.”

Therefore the term ‘President’ used in most of the constitutional provisions in India denotes

the Central Executive, i.e., the President acting on the advice of his Ministers, and not the

President acting personally. The Constitution-framers never envisaged that the powers and

39 D.D. BASU, COMMENTARY ON CONSTITUTION OF INDIA, 4529, (8th Edition, Vol. 4, 2008); See

Keshar Singh v. Union of India, AIR 1989 SC 563; Maru Ram v. Union of India, AIR 1980 SC 2141.40 IV CAD, 1036; VIII CAD 724.41 S. 13 of the 42nd Constitutional Amendment act, 1976.42 R. C. Cooper v. Union of India, AIR 1970 SC 564; Samsher Singh v. State of Punjab, AIR 1974 SC 2192; UN

Rao v. Indira Gandhi, AIR 1971 SC 1002.43 MP JAIN, INDIAN CONSTITUTIONAL LAW, 169,(5th Edition, Vol. I, 2003) 44 AIR 1995 SC 1178


99

functions vested in the President should be exercised by him on his own responsibility

without the consent of the Ministers.45

Therefore in the light of the above arguments it can be well stated that, the President is

always bound by the aid and advice of Council of Ministers and since the appointment of

Comptroller and Auditor General Of India is the executive function of the President of India,

therefore President of India is bound by the advice of the Union Cabinet while appointing the

Comptroller and Auditor General.

2.22.2 The appointment of Comptroller and Auditor General of India does not come underThe appointment of Comptroller and Auditor General of India does not come under

the discretionary power of the Presidentthe discretionary power of the President

There are occasions where the President has to exercise his own wisdom and not

to follow the advice of council of ministers, which have been confined to the

following situations: (a) while determining the age of the sitting Judge of the Supreme

Court or High Court which is a judicial function, the President has to decide himself

and on the basis of any advice from the council of ministers46, (b) while considering

the disqualifications of any member of either houses of parliament, the President has

to act in accordance with the recommendation of the election commission and not the

council of ministers47, (c) in the appointment of judges to Higher Judiciary, i.e. High

Court and Supreme Court, the President has to act in accordance with Arts. 124(2)

and 217(1) read with Art. 74(1) of the Constitution of India.48 In this context, it may

be recalled that in the Memorandum submitted by Sir B.N. Rau to the Union

Constitution Committee49, the scheme was to give the President certain ‘discretionary’

45 M P JAIN, INDIAN CONSTITUTIONAL LAW, 203, (6th Edition, Vol.1,2010) 46 Union of India v. Jyoti Prakash Mishra AIR 1971 SC 1093; Anand Kumar v. Katteael Bhaskaran (1988) 2

SCC 50.47 Samsher Singh v. State of Punjab, AIR 1974 SC 2192. 48 Supreme Advocate’s on Record Association v. Union of India, AIR 1994 SC 268.49 SHIVA RAO, THE FRAMING OF INDIA’s CONSTITUTION, 476-77, ( Vol II).


1010

functions apart from (a) choice of a Prime Minister and (b) the dissolution of

Parliament. The scheme was rejected by the Union Constitution Committee and the

proposed discretionary sphere was omitted from the Constitution.

Moreover, the word ‘shall’ in Art. 74(1) have to be interpreted as an absolute imperative,

save where any exception has been engrafted by some other provision of the Constitution or

there is no council of ministers to tender advice.50 Applied to the question of Ministerial

advice, it appears that the President cannot be required to act according to the Ministerial

advice where such advice is not available from existing Council of Ministers51.

The exceptions mentioned are not even remotely close or similar in nature to the instance in the

current case. Thus it is respectfully submitted that the President’s action in the instant fact

situation of appointment of CAG without adhering to the aid and advice of the Council of

Ministers is in violation and contrary to Art.74 (1) of the Constitution. Also since there was an

advice readily available by the Council of Ministers52, so there was no discretion of President

to act in such appointment and doing so will amount to uprooting the constitutional scheme

of India.

50 D.D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 4557, (8th Edition, Vol. 4, 2008).51 D.D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 4534, (8th Edition, Vol. 4, 2008).52 Moot Problem, ¶ 3.


1111

PPRAYERRAYER

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

prayed on behalf of the Government of India, that this Hon’ble Court may be pleased to

declare that:

1. The Presidential Reference No. 1 of 2025 is maintainable.

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

Government of India, the Hon’ble Court may be pleased to conclude that:

1. The President is bound by the advice of the Union Cabinet while appointing the

Comptroller and Auditor General of India.

The Court may also be pleased to give any other advice, 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, 2025. (On behalf of the Government of India)


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