IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) 1 I.A. NO. OF 2018 IN WRIT PETITION (C) No. OF 2018 [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA] BETWEEN: DR. G. PARAMESHWAR & ANR. PETITIONER(s) VERSUS UNION OF INDIA &ORS. RESPONDENT(s) APPLICATION FOR DIRECTIONS TO, HON'BLE THE CHIEF JUSTICE OF INDIA AND OTHER COMPANION JUSTICES OF THE HON BLE SUPREME COURT OF INDIA. MOST RESPECTFULLY SHOWETH: THE HUMBLE APPLICATION OF THE APPLICANT ABOVENAMED 1. The Petitioners have filed the accompanying Petition, interalia,assailing the impugned actions/decision of the Hon ble Governor inviting Respondent No. 3 to form the Government and be sworn in as the Chief Minister vide communication dated 16.05.2018 and accordingly on the basis of the impugned communication the Respondent No. 3 was to take an oath at 9.30 am on 17.05.2018. The contents of the accompanying Writ Petition may be referred to and relied
2 upon for the purposes of the present Application and the same are not being repeated herein brevitatis causa. 2. It is submitted that this Hon ble Court vide order dated 17.05.2018 although has not passed any order staying the oath-taking ceremony of Respondent No. 3 however this Hon ble Court was pleased to observe that if the Respondent No. 3 takes oath that the same shall be subject to further orders of this Hon ble Court and the final outcome of the aforementioned writ petition. This Hon ble Court was also pleased to direct the Respondent No. 1 and 3 to produce the letters dated 15.05.2018 and 16.05.2018 submitted by the Respondent No.3 to the Hon ble Governor purporting to stake claim to form the Government which has been referred to in the communication dated 16.05.2018. 3. The Petitioners are constrained to file the present application, interalia, seeking urgent interim directions to the Respondent No. 3 and to the Hon ble Governor restraining them from nominating or appointing any member of the Anglo-Indian Community as the MLA in the State Legislative Assembly until the floor test is conducted. 4. It is submitted that Article 333 of the Constitution of India empowers the Hon ble Governor of the State to nominate a person/member of the Anglo Indian community to represent
3 in the Legislative Assembly of the State if he is of opinion that the Anglo Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein. Article 333 of the Constitution of India is extracted hereunder for sake of convenience: 333. Representation of the Anglo Indian community in the Legislative Assemblies of the States Notwithstanding anything in Article 170, the Governor of a State may, if he is of opinion that the Anglo Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein, nominate one member of that community to the Assembly 5. It is submitted that the power of the Governor under Article 333 cannot be exercised on the aid and advice of Respondent No 3 who is yet to undertake the floor test. The Respondent No 3 does not have legal, moral or constitutional authority to advice the Governor to exercise his power under Article 333. 6. Further in any event, the Governor in the light of fast paced circumstances cannot enter the political thicket by even unilaterally exercising his powers under Article 333. In the face of impending floor test with a pre determined motive to help the incumbent Chief Minister. Any such exercise of power under Article 333 unilaterally by the Governor or on the aid and advice of the Chief Minister is exfacie unconstitutional and has been held to be so by this Hon ble Court.
4 7. It is submitted that taking advantage of the power under Article 333 of the Constitution the Respondent No. 3 and his party (BJP) are now attempting to nominate an Anglo Indian MLA to fill nominated seat immediately to illegally raise their strength in the House with a view to outnumber the Petitioners who enjoy support of majority of the elected legislators being 116 in number. 8. It is submitted that if any person is nominated to the seat in order to represent the Anglo Indian Community before the conduct of the floor test or vote of confidence to prove the majority in favour of any political party or group, it would be entirely unethical and will be a fraud on Constitution, not to mention that the same would be a complete mockery of the democratic process and free and fair elections. It is implored upon this Hon ble Court to safeguard the rule of law and the basic rule of parliamentary democracy i.e. the rule by majority by restraining the Respondents to misuse this provision of the Constitution being Article 333 in order to seek political advantage for its own gain or benefit only to somehow form the Government against the constitutional mandate. Clearly that was not the object behind introducing Article 333 of the Constitution of India.
5 9. It is with utmost respect submitted that the use of the Governor s office for such ill-conceived and unconstitutional political ambitions and desires would amount to a death knell to democracy which is a basic feature of our Constitution. 10. It is the case of the Petitioners that the Respondent No. 3 does not have required strength/majority to form the Government as the minimum required strength to form the Government in the State of Karnataka is 112 whereas the Respondent No. 3 admittedly has only 104 members as against the claim of the Petitioners who have majority support of 116 MLAs. 11. It is further submitted that allowing the exploitation of the discretionary constitutional power of appointing a member of the Anglo Indian Community without conducting a floor test to prove the majority to form a popular Government would damage the basic constitutional fabric of the country. 12. It may not be out of place to mention that the All India Anglo Indian Association has also written to the Governor that the constitutional rights of Anglo Indians may not be exploited for political purposes and that any nomination may be made only after the floor test. A true copy of the letter dated 16.05.2018 addressed by, Barry O Brien, President of the All India Anglo
6 Indian Association, to the Hon ble Governor of Karnataka is annexed hereto and Annexure 1 [Pg. 13. It is in these facts and circumstances, the Petitioners humbly beseech this Hon ble Court as a sentinel on the qui vive of the Constitution to restrain the Hon ble Governor and Respondent No. 3 from nominating any member of the Anglo Indian Community as MLA on the aid and advice of Chief Minister who is yet to prove his majority on the floor of the house until a floor test to prove the majority of the government headed by Respondent No. 3 is conducted. 14. The Application has been filed bona fide and in the interests of justice. PRAYER In these circumstances the Petitioners most respectfully pray that this Hon ble Court may be pleased to: (a) Issue appropriate directions restraining Respondent No 3 from nominating and or recommending any member of the Anglo Indian community under Article 333 of the Constitution pending the floor test of Respondent No 3; (b) Issue appropriate directions staying any order purported to be issued under Article 333 of the Constitution pending the floor test of Respondent No 3; and
(c) 7 Pass any other order(s) as it deems fit and appropriate in the facts and circumstances of the case. AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY. FILED BY Place: New Delhi Draft on: 16.05.2018 [MR. GAUTAM TALUKDAR] Advocate for the Petitioners Filed on: 17.05.2018