TEAM CODE: 36

7TH ANNUAL
NALSAR JUSTICE BODH RAJ SAWHNY
MEMORIAL MOOT COURT COMPETITION, 2013
NALSAR, HYDERABAD

IN THE
HONBLE
SUPREME COURT

OF INDIA

AT NEW DELHI

REFERENCE CONCERNING THE APPOINTMENT OF THE COMPTROLLER AND

AUDITOR GENERAL OF INDIA

PRESIDENTIAL REFERENCE NO. 1 OF 2025

IN RE: THE APPOINTMENT OF THE COMPTROLLER AND AUDITOR GENERAL

OF INDIA, 2025

-MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA-

TABLE OF CONTENTS

INDEX OF AUTHORITIES................................................................. IV
ABBREVIATIONS.......................................................................... VII
STATEMENT

OF JURISDICTION......................................................... VIII

STATEMENT

OF

FACTS.................................................................... IX

ISSUES RAISED............................................................................. X
SUMMARY

OF

ARGUMENTS.............................................................. XI

ARGUMENTS ADVANCED.................................................................. 1
1. WHETHER

THE

PRESIDENTIAL REFERENCE NUMBER 1

OF

2025

IS

MAINTAINABLE.............................................................................. 1
1.1 THE

SATISFACTION OF

SATISFACTION OF

1.1.1 THE

UNION GOVERNMENT

PRESIDENT

PRESIDENT

WOULD AMOUNT TO THE

FOR THE PURPOSES OF

IS

AN

ABBREVIATION

ARTICLE 143(1).....
1
143(1).....1
FOR

THE

CENTRAL

GOVERNMENT....................................................................... 2
1.2 THE HONOURABLE SUPREME COURT

SHOULD CONFINE ITSELF MERELY

TO THE QUESTIONS REFERRED TO IT............................................... 2

1.2.1 IT

IS OBLIGATORY FOR THE

ANSWER THE

HONOURABLE SUPREME COURT

TO

REFERENCE......................................................... 3

1.2.1.1. .THERE

WERE NO GOOD OR PROPER REASONS TO DECLINE THE

REFERENCE........................................................................ 3

1.2.1.2.........THE

PLEA FOR MALA FIDE INTENTION OF THE AUTHORITY

MAKING A REFERENCE SHOULD NOT BE CONSIDERED......................4

......................4

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA

2

2. WHETHER
CABINET

THE

WHILE

PRESIDENT

OF INDIA IS BOUND BY THE ADVICE OF

APPOINTING COMPTROLLER

AND

UNION

AUDITOR GENERAL

OF

INDIA...................................................................................... 4
2.1 APPOINTMENT

OF

COMPTROLLER

AND

AUDITOR GENERAL

OF INDIA IS

PRESIDENT

IS ALWAYS

AN EXECUTIVE FUNCTION IN EXERCISE OF WHICH

BOUND BY THE ADVICE OF

2.1.1 APPOINTMENT
INDIA

UNION CABINET......................................4
......................................4

OF

COMPTROLLER

IS AN EXECUTIVE FUNCTION OF

2.1.2 IN

AND

AUDITOR GENERAL

OF

PRESIDENT............................5
............................5

EXERCISE OF EXECUTIVE FUNCTION THE

PRESIDENT

IS ALWAYS

BOUND BY THE ADVICE OF

UNION CABINET....................................6
....................................6

2.1.2 THE PRESIDENT

IS

OFFICERS

SUBORDINATE

INTERPRETED AS

TO
TO

HIM

OR

UNION

MINISTERS

2.1.3 THE PRESIDENT

EXERCISE

THIS

WHO
OF

FUNCTION

HAVE

MINISTERS

THROUGH

BEEN

JUDICIALLY

OF THE

CABINET. 6

CANNOT EXERCISE EXECUTIVE POWER WITHOUT

THE AID AND ADVICE OF THE

COUNCIL

OF

MINISTERS

AS PER THE INDIAN

CONSTITUTION...................................................................... 7
2.1.3.1. ART 74(1)

OF THE

CONSTITUTION

IS MANDATORY IN NATURE.

7
2.1.3.2. 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...............................................8
...............................................8

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA

3

2.2 THE
INDIA

APPOINTMENT OF

DOES

NOT

COME

COMPTROLLER

UNDER

THE

AND

AUDITOR GENERAL

DISCRETIONARY

POWER

OF

OF
THE

PRESIDENT........................................................................... 10
PRAYER..................................................................................... 12

INDEX OF AUTHORITIES

CASES REFERRED

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

2. Anand Kumar v. Katteael Bhaskaran (1988) 2 SCC 50....................................................
3. Bijoy Cotton Mills v. State of West Bengal, AIR 1967 SC 1145..........................................
4. Chandrika Jha v. State of Bihar, AIR 1984 SC 332............................................................
5. Emperor v. Sibnath, AIR 1945 PC 156 (162-163)...............................................................
6. G.D. Zalani; B.L. Wadhera v. Union of India, AIR 1998 Del. 436.....................................
7. In Re. Reference under Art. 143 of Constitution of India, AIR 1965 SC 745......................
8. In Re: Presidential Poll, AIR 1974 SC 1682.......................................................................
9. In Re: Special Reference No.1 of 2012, [2012] 9 SCR 311.................................................
10. In Re: The Kerala Education Bill, 1957, AIR 1958 SC 956.............................................
11. In Re: The Special Courts Bill, 1978, AIR 1979 SC 478....................................................
12. K. Ananda Nambiar v. Govt. of Madaras, AIR 1966 SC 657..............................................
13. Keshar Singh v. Union of India, AIR 1989 SC 563.............................................................
14. Madhavrao Scindia v. Union of India, AIR 1971 SC 530...................................................
15. Maru Ram v. Union of India, AIR 1980 SC 2147.............................................................
16. R.C.Cooper v. Union of India, AIR 1970 SC 564.............................................................
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
4

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

18. Rameshwar Parasd and Ors. v. Union of India and Anrs., AIR 2006 SC 980....................
19. S R Bommai v. Union of India, AIR 1994 SC 1918.............................................................
20. S.N. Ghosh v. B.L. Cotton Mills, AIR 1959 Cal. 552...........................................................
21. S.P Gupta v. President of India and Ors., AIR 1982 SC 149..............................................
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............................................................
24. Shiv Bahadur v. State of U.P., (1953) SCR 1188 (1210).....................................................
25. State of M.P. v. Yashwant Trimabak, (1996) 2 SCC 305......................................................
26. Supreme Advocates on Record Association v. Union of India, AIR 1994 SC 268............
27. UN Rao v. Indira Gandhi, AIR 1971 SC 1002.................................................................
28. Union of India v. Jyoti Prakash Mishra AIR 1971 SC 1093.............................................
29. Union of India v. Sripathi Rajan AIR 1975 SC 1755..........................................................

LEGAL TEXT
1. The Constitution of India, 1950.

B
BOOKS REFERRED
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, 1 ST ED.,

OXFORD UNIVERSITY PRESS, (1972)

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)
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
5

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 INDIAS CONSTITUTION, VOLUME 2, UNIVERSAL LAW
PUBLISHING CO. PVT. LTD. (2010)

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA

6

ABBREVIATIONS

A.I.R.
Anr.
A.P.
Art.
CAD
CAG
Co.
CVC
Ed.
etc.
Id.
M.P.
p.
Re.
Rep.
S.C.
S.C.C.
S.C.R.
U.O.I.
U.P.

Section
Paragraph
All India Reporter
Another
Andhra Pradesh
Article
Constitutional Assembly Debates
Comptroller and Auditor General
Company
Chief Vigilance Commissioner
Edition
Etcetera
Ibid
Madhya Pradesh
Page
Reference
Report
Supreme Court
Supreme Court Cases
Supreme Court Reports
Union of India
Uttar Pradesh
STATEMENT OF JURISDICTION

The Union of India has approached for the advice of this Honble Supreme Court of India
under Art 143(1) of the Constitution of India.

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA

7

STATEMENT OF FACTS

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

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA

8

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
President was not consulted at the time of preferring the Presidential Reference. The
affidavit disputed the validity of the reference.

ISSUES RAISED

The following questions have been raised before this Honble Supreme Court to consider:

I.
WHETHER THE PRESIDENTIAL REFERENCE NUMBER 1 OF 2025 IS MAINTAINABLE
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
9

II.
WHETHER THE PRESIDENT OF INDIA IS BOUND BY THE ADVICE OF UNION CABINET
WHILE APPOINTING THE COMPTROLLER AND AUDITOR GENERAL OF INDIA

SUMMARY OF ARGUMENTS

I.

WHETHER

THE

PRESIDENTIAL REFERENCE 1

OF

2025

IS

MAINTAINABLE.

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
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
10

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.

WHETHER
CABINET

THE

PRESIDENT

OF INDIA IS BOUND BY THE ADVICE OF

WHILE APPOINTING THE

COMPTROLLER

AND

UNION

AUDITOR GENERAL

OF INDIA.

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
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.

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA

11

ARGUMENTS ADVANCED

1. WHETHER THE PRESIDENTIAL REFERENCE NUMBER 1 OF 2025 IS

MAINTAINABLE
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.

1.1 The satisfaction of Union Government would amount to the satisfaction of President
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 Presidents satisfaction 1and 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

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

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
1

satisfaction of the Council of Ministers2. The Presidents 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. 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

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,( 8 th Edition,

Vol. 5, 2008).
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
2

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.

1.2 The Honourable Supreme Court should confine itself merely to the questions
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 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

1.2.1 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

7 MP JAIN, INDIAN CONSTITUTIONAL LAW, 270, ( 6th Edition, 2010).

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

9 In Re: Presidential Poll, AIR 1974 SC 1682.

10 AIR (30) 1943 FC 13.

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
3

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.

`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.

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.

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
4

1.2.1.2 The plea for mala fide intention of the authority making a reference should not be
considered
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. WHETHER

THE

PRESIDENT

OF INDIA IS BOUND BY THE ADVICE OF

UNION CABINET

WHILE APPOINTING COMPTROLLER AND AUDITOR GENERAL OF INDIA.

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.

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
5

2.1 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
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 executive

function 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

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.

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
6

administrative power20 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
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.

2.1.2 In exercise of executive function the President is always bound by the advice of
Union 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 Presidents personal
satisfaction is not necessary.24 The President is only a formal or constitutional head of the

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).

22 Art. 148, Constitution of India, 1950.

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

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
7

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 nations 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
2.1.2

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
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

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, (6 th 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.

28 Article 53, CONSTITUTION OF INDIA, 1950.

29 AIR 1974 SC 2192.

MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
8

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
2.1.3

The President cannot exercise executive power without the aid and advice of the
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 Presidents 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
2.1.3.1 Art 74(1) of the Constitution is mandatory in nature.

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).
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
9

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

2.1.3.2 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
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
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.
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
10

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 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
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.
MEMORIAL ON BEHALF OF THE GOVERNMENT OF INDIA
11

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
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.

43 MP JAIN, INDIAN CONSTITUTIONAL LAW, 169,(5th Edition, Vol. I, 2003)

44 AIR 1995 SC 1178

45 M P JAIN, INDIAN CONSTITUTIONAL LAW, 203, (6th Edition, Vol.1,2010)

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2.2 The appointment of Comptroller and Auditor General of India does not come under
the 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 ministers 47, (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 Committee 49, the scheme was to give the President certain
discretionary 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.

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 Advocates on Record Association v. Union of India, AIR 1994 SC 268.

49 SHIVA RAO, THE FRAMING OF INDIAs CONSTITUTION, 476-77, ( Vol II).

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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 Presidents 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, (8 th Edition,

Vol. 4, 2008).

51 D.D BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 4534, (8 th Edition,

Vol. 4, 2008).

52 Moot Problem, 3.
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PRAYER

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 Honble 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 Honble 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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