3RD INTRA-DEPARTMENT MOOT COURT COMPETITION—2018

Before TEAM CODE - Y

THE HONOURABLE SUPREME COURT OF BERKSHIRE

2018

UNDER ARTICLE 32 OF THE CONSTITUTION OF BERKSHIRE

IN THE MATTER OF:

MR. NATHAN KAGAN……………...............................................................PETITIONER

V.

UNION OF BERKSHIRE…………………………………………...……...RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

 TABLE OF CONTENTS

INDEX OF ABBREVIATIONS…………………………………………….......1

INDEX OF AUTHORITIES………………………………………………...….2

STATEMENT OF JURISDICTION………………………………………...….4

STATEMENT OF FACTS………………………………………………...……4

QUESTION RAISED……..……………………………………………...……..6

SUMMARY OF ARGUMENTS……………………………………………......7

PLEADINGS AND AUTHORITIES……………………………………...........8

1. ARGUMENTS ADVANCING SUSTAINABILITY OF PARDON……....................8

A. ABSOLUTE NATURE OF THE PRESIDENTIAL PREROGATIVE TO

PARDON.

B. PHILOSOPHICAL FOUNDATIONS OF THE PARDON.

C. UNDERSTANDING THE CONTEXT OF THE PARDON OF THE ACCUSED

D. ANALYSING THE CANONICAL BASIS OF THE GRANT OF

PRESIDENTIAL PARDON.

E. THEORITICAL BASIS OF THE PRESIDENTIAL PARDONING OF THE

ACCUSED.

2. CONTEXTUALLY ESTABLISHING THE PUBLIC WELFARE INTENT OF MR.

ALITO………………………………………………………………………...……...15

A. ESTABLISHING THE WHISTLEBLOWER CAPACITY OF THE ACCUSED.

B. NON-CONSIDERATION OF THE INTENTION OF THE ACCUSED UNDER

THE OFFICIAL SECRETS ACT, 1923.

3. THE IMPOSSIBILITY OF FORMULATING GUIDELINES FOR THE EXERCISE

OF PRESIDENTIAL PARDONING………………………………………………...19

A. PARDON TO BE EXERCISED ON PUBLIC CONSIDERATION.

 4. NEGATING THE INDICATIONS OF A DISCRIMINATORY EXERCISE OF
PRESIDENTIAL CLEMENCY IN THE NON-PARDONING OF MR. LEAHY….21

A. JUSTIFYING THE CIRCUMSTANTIAL INABILITY OF THE ACCUSED TO

EXERCISE SOUND DISCRETION.

B. ESTABLISHING THE NEGLIGENCE IN THE ACTIONS OF MR. LEAHY.

C. EXCLUSION OF A PERSON FROM CLEMENCY IS A MATTER OF

POLICY.

5. JUDICIAL INADMISSIBILITY OF EVIDENCE UNDER ARTICLE 74(2) OF THE

CONSTITUTION OF BERKSHIRE………………………………………………...24

A. ARGUMENTATIVE APPLICATION OF ARTICLE 361.

B. JUDICIAL PRECEDENTS ESTABLISHING THE INADMISSIBILITY OF

MINISTERIAL ADVISE UNDER ART.74.

PRAYER………………………………………………………………….……26
 INDEX OF ABBREVIATIONS

& And
AIR All India Reporter
AP Andhra Pradesh
All. Allahabad
Anr. Another
Bom. Bombay
Co. Company
Edn./Ed. Edition
FIR First Information Report
Govt. Government
HC High Court
Hon’ble Honourable
I.L.R Indian Law Reporter
L.J. Law Journal
Ltd. Limited
Mad. Madras
MP Madhya Pradesh
Mr. Mister
N.C.T National Capital Territory
No. Number
Ors. Others
OSA Official Secrets Act, 1923
p. Page
¶ Paragraph
¶¶ Paragraphs
Pvt. Private
Raj. Rajasthan

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 § Section
§§ Sections
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter

UOI Union of India

UP Uttar Pradesh
U/S. Under Section
U.S. United States of America
V. Versus
Vol. Volume

INDEX OF AUTHORITIES

CASES REFERRED:

SUPREME COURT CASES:

1. Ashok Kumar v. Union of India, AIR 1991 SC 1792, 1803-1804 : (1991) 3 SCC 498.
2. Bennett Coleman & Co. v. U.O.I, (1972)2 SCC 788.
3. Daypack Systems (P) Ltd. v. Union of India, AIR 1988 SC 782.
4. Epuru Sudhakar vs. Government of AP, AIR 2006 SC 3385:(2006)8 SCC 161.
5. G. Krishna Goud v. State of Andhra Pradesh, (1976) 2 SCR 73: (1976) 1 SCC 157.
6. Government of A.P. v. M.T. Khan [2004 (1) SCC 616]
7. Harijai Singh Re, (1996)6 SCC 466.
8. Indirect Tax Practitioners’ Association v. R.K. Jain, (CRL.) NO.15 OF 1997.
9. Kehar Singh v. Union of India, AIR 1989 SC 653: (1989) 1 SCC 204.
10. Maru Ram v. Union of India, AIR 1980 SC 2147: (1981) 1 SCC 107.
11. R.C. Cooper v. Union of India, AIR 1970 SC 564: (1970) 1 SCC 448.
12. State of Punjab v. Sodhi, AIR 1961 SC 493: (1961) 2 SCR 371: (1961) 2 SCJ 691.

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HIGH COURT CASES:
1. Rao Birinder Singh v. Union of India, AIR 1968 P&H 441.
2. Vidyasagar v. Krishna, AIR 1965 Pat. 321.

INTERNATIONAL CASES:
1. Biddle v. Perovich, 274 U.S. 480 (1927).
2. Cook v. Chosen Freeholders, 26 N. J. L., 326, 333 (1857)
3. De Freitas v. Benny, 1976 A.C. 239, 247.
4. Ex parte, Grossman, 267 US 87 (1925).
5. Nga Ku v. Queen Emperor, (1897) U.B.R. 330 (334).

STATUTES AND OTHER AUTHORITIES:

1. Constitution of India.
2. Norms of Journalistic Conduct 2018, Press Council of India.
3. 35th Report of the Law Commission of India.

JOURNALS REFERRED:
1. All India Reporter.
2. Supreme Court Cases.
3. The NUJS Law Review.
4. The NEHU Journal.
5. Yale Law Journal.
6. Boston College Third World Law Journal.
7. Brandeis Law Journal.

BOOKS REFERRED:
1. D.D. Basu, Commentary on the Constitution of India, (8th Ed., LexisNexis Butterworths
Wadhwa, Nagpur, 2008), Vol. 4.
2. M.P. Jain, Indian Constitutional Law, (6th Ed., LexisNexis Butterworths, Wadhwa, Nagpur,
2010), Vol. 1.
3. Samaraditya Pal, India’s Constitution: Origins and Evolution, (LexisNexis, 2015), Vol. 4.
4. V.N. Shukla, Constitution of India, (12th Ed., Eastern Law Company, 2013).

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5. D.D. Basu, Shorter Constitution of India, (14th Ed., LexisNexis Butterworths Wadhwa,
Nagpur, 2009), Vol. 1.
6. American Jurisprudence, (2d, West, 1971), Vol. 59.
7. Corpus Juris Secundum, (West, 1978), Vol. 67A.

LEGAL DICTIONARIES REFERRED:

1. Elizabeth A. Martin, The Oxford Dictionary of Law, (5th Ed., 2003).

2. Garner B.A., Black’s Law Dictionary, (9th Ed., 2009).

DATABASES REFERRED:
1. http://www.manupatra.com (last visited on 27th November, 2018)
2. http://www.judis.nic.in (last visited on 29th November, 2018)
3. http://www.indiakanoon.com (last visited on 6th December, 2018)
4. http://www.scconline.com (last visisted on 2nd December, 2018)

STATEMENT OF JURISDICTION

The counsels representing the respondent have endorsed their pleadings before the Hon’ble
Supreme Court of Berkshire under Article 32 of the Constitution of Berkshire under which the
Hon’ble Court has jurisdiction.1

The present memorandum sets forth the facts, contentions and arguments.

STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon’ble Court, the facts of the case are
summarised as follows:

1 Article 32 of the Constitution of India, 1950.

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1. The Republic of Berkshire (hereinafter referred to as “Berkshire”) is a quasi-federal
democratic country located in the Asian subcontinent. After a few centuries of colonial
rule, Berkshire obtained independence in the mid-twentieth century.
2. The political landscape in Berkshire is dominated by two parties, namely, the
conservative Berkshire People’s Party (BPP) and the liberal United Berkshire Alliance
(UBA). Since UBA played a major role in Berkshire’s freedom movement, it retained
overwhelming electoral support, securing majority seats in 12 out of 15 General
Elections. However, due to rising discontent with the economic policies of the UBA, the
BPP emerged victorious in the General Elections of 2013. As a result, the President asked
Mr. Nathan Kagan, the leader of the BPP to form the Government.
3. A defence contract for the manufacture of several military aircrafts (hereinafter referred
to as HAL contract), with Halsbury Aeronautics Limited (HAL), a state owned defence
company, was cancelled by the BPP Government in August of 2015. The HAL contract
was initially negotiated and entered into by the UBA Government in February of 2013.
Subsequent to cancellation of the HAL contract, the BPP Government engaged Rochester
Defence Limited (RDL), a private defence contractor, for the manufacture of military
aircrafts similar to those which were to be manufactured by HAL under the HAL
contract.
4. The contract with RDL (hereinafter referred to as the RDL contract) was executed by the
Ministry of Defence on 10th of December, 2015. Subsequently, however, it was revealed
that the RDL contract involved ten times the consideration of the HAL contract. In the
face of such revelation, the BPP Government, initially attempted to justify the
extraordinarily high consideration of the RDL contract and refused to release any
information pertaining to the RDL contract on the ground that revelation of such
information would be contrary to national security interests.
5. At this time, the UBA alleged that the RDL contract reeked of cronyism. Such allegation
was based upon the fact that the founder and CEO of the RDL, was a fervent supporter of
Prime Minister Kagan and had made major financial contributions to the BPP during the
lead up to the 2013 General Elections. Furthermore, it was also revealed that the RDL
was founded in July 2015 and had no prior experience in handling defence contracts of
the size and scale of the RDL contract.

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6. P.M. Kagan had defended the RDL contract by stating that the aircrafts to be
manufactured under the RDL contract were far superior to the ones that were to be
manufactured under the HAL contract. However, on 26th August, 2018, only a month
before the General Elections, the Berkshire Chronicle reported that based on photographs
of certain classified Government documents detailing the particulars of the RDL contract,
provided to the Mr. Leahy, the editor, by an anonymous high level employee, revealed
that aircrafts to be manufactured under the RDL contract are same as those that were to
be manufactured under the HAL contract. These pictures were also circulated in several
online forums.
7. Outraged at such revelations, the BPP Government pledged to bring the people behind
such leak to justice. The BPP Government also pointed out that the leaked documents did
not merely contain particulars of the RDL contract but also contained sensitive military
information bearing significant strategic importance. Recognizing the importance of
maintaining confidentiality of such military information, newspapers other than the
Berkshire Chronicle, printed details of the RDL contract solely. Following a thorough
investigation, Mr. Michael Alito was identified as the person behind the leak. Subsequent
to trial, Court of Sessions in the city of Kensington, on the 28th of September, 2018,
convicted Mr. Alito under Sections 3 and 5 of the Official Secrets Act, 1923 and awarded
life imprisonment and Mr. Leahy was convicted under Section 5 of the said Act and
awarded him equal punishment as Mr. Alito. Meanwhile, he was hailed as a public hero
who risked everything to reveal corrupt practices of the Government.
8. Due to the damning revelations surrounding the RDL contract, the BPP lost electoral
support and consequently lost the elections to the UBA, after the people went to the polls
on 26thSeptember, 2018. On the same day, the newspapers had reported that Mr. Alito
had indirect connections with several influential members of the UBA. Such reports
however, went largely unnoticed.
9. Following their victory in the General Elections, the UBA formed the Government with
Mr. Charles Roberts as the Prime Minister. On the 5th of October, only a few days after
the UBA Government ministers had entered into office, the President of Berkshire,
exercising his powers under Article 72 of the Constitution of Berkshire, vide an order
dated 5th of October, 2018, granted full pardon to Mr. Alito in the absence of any express
petition from Mr. Alito. Such pardon was granted while the appeal against the judgment

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 of the Sessions Court was still pending before the High Court at Kensington. Mr. Kagan
challenged the pardon by filing a writ petition before the Supreme Court of Berkshire.
Now the matter of Nathan Kagan v. Union of Berkshire is listed before the Constitution
Bench of the Supreme Court for final hearing.

QUESTION RAISED

The following question is presented before this Hon’ble Court for adjudication in the instant
matter:

I. WHETHER THE PRESIDENTIAL PARDON GRANTED TO MR. ALITO

CONFORMS TO THE CONSTITUTIONAL CANONS OF BERKSHIRE.

SUMMARY OF ARGUMENTS

1. ARGUMENTS ADVANCING THE SUSTAINABILITY OF THE PARDON:

Herein, the counsels for the respondent have presented arguments establishing the
absolute nature of the presidential pardon and analysed the canonical basis of the same.
The counsels have further advanced arguments presenting an understanding of the
context of the pardon granted to the accused by establishing a theoretical basis of the
pardon granted to the said individual.

2. CONTEXTUALLY ESTABLISHING THE PUBLIC WELFARE INTENT OF MR.

ALITO: The counsels for the respondent have advanced arguments for establishing that
the accused had acted in the capacity of a “whistleblower”. The counsels have also
deliberated upon the inconsideration of the intent of the accused in the criminal trial.

3. THE IMPOSSIBILITY OF FORMULATING GUIDELINES FOR THE

EXERCISE OF PRESIDENTIAL PARDON: Placing reliance upon relevant judicial
precedents, the counsels for the respondents have presented arguments in favour of the
impossibility of formulating guidelines for the exercise of presidential pardon.

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4. NEGATING THE INDICATIONS OF A DISCRIMINATORY EXERCISE OF
PRESIDENTIAL CLEMENCY IN THE NON-PARDONING OF MR. LEAHY:
Arguments have been advanced by the counsels for the respondent in order to establish
the circumstantial inability of the accused to exercise his discretion and to bring to light,
the negligence involved in Mr. Leahy’s actions. Furthermore, placing reliance upon
relevant judicial precedents, the counsels for the respondent have attempted to prove that
exclusion from clemency is a matter of administrative policy.

5. JUDICIAL INADMISSIBILITY OF EVIDENCE UNDER ARTICLE 74(2) OF

THE CONSTITUTION OF BERKSHIRE: The counsels for the respondent have
advanced arguments and cited relevant judicial precedents for establishing the judicial
inadmissibility of evidence under Article 74(2) of the Constitution of India.

PLEADINGS AND AUTHORITIES

1. ARGUMENTS ADVANCING SUSTAINABILITY OF THE PARDON.

1. Mercy is not the subject of legal rights. It begins where legal rights end.2 In adjudicating
an issue of law with regard to a case-in-hand, the judiciary primarily considers the relevancy of
legal grounds warranting the imposition of punishments and is not at liberty to issue
pronouncements on the basis of compassion. It is said that executive, in exercise of its authority
to pardon, performs the function of neutralizing the insufficiently compassionate judgments of
the judiciary.3
A. Absolute nature of the presidential prerogative to pardon.
2. The prerogative authority of the President to grant a pardon, conferred by Article 72 of
the Constitution is an absolute power and is not subject to any statutory provision.4
B. Philosophical foundations of the pardon.
3. The philosophy underlying the pardoning authority of the president is that “every
civilized country recognizes, and has therefore provided for, the pardoning power to be
exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to

2 Lord Diplock in De Freitas v. Benny, [1976] A.C. 239, 247.

3 H. J. Krent, Conditioning the President’s Conditional Pardon Power, 89 CAL. L. REV. 1665 (2001).
4 Kehar Singh v. Union of India, AIR 1989 SC 653 : (1989) 1 SCC 204.

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be exercised by some department or functionary of a government, a country would be most
imperfect and deficient in its political morality, and in that attribute of Deity whose judgments
are always tempered with mercy.”5
C. Understanding the context of Mr. Alito’s pardon.
4. In pertinence to the facts of the case, Mr. Alito has showcased genuine loyalty to the
people of this country. In an effort to uphold the principles of democracy and in furtherance of
his duty as a responsible citizen of this country, he has endeavoured to inform the people about
illegitimate relations subsisting between the Kagan Administration and the RDL. In this regard,
shorn of unnecessary details, the following facts must be taken into consideration:
(a) RDL was founded in the July of 2015, only a month prior to the cancellation of the
HAL contract.6
(b) Prior to the finalization of the defense contract between RDL and the Defense
Ministry of the BPP government, RDL had been in existence only for a brief period
of 5 months and had no prior experience in handling defense contracts identical to the
size and scale of the RDL contract.7
(c) The CEO of RDL was a fervent supporter of PM Kagan and had even made
substantial campaign contributions to the BPP during the lead-up to the General
Elections of 2013.8
(d) Mr. Alito was a high-level employee of the RDL at the time when he had forwarded
confidential documents concerning the RDL contract to the Editor of the Berkshire
Chronicle.9
5. From the above-mentioned facts, it is not improper to infer that major financial
contributions to the BPP by the CEO of RDL, might have been a contributing factor towards
cancellation of the HAL contract and handing over the manufacture of military aircraft of
essentially identical specifications, as under the HAL contract to the RDL, but involving ten
times the financial consideration. This in fact, clearly reveals the existence of a corrupt nexus
between the RDL and the BPP. Recognising the existence of such a nexus, Mr. Alito deemed it
necessary to bring such corruption to the forefront of public discourse. He did so by relaying the

5 59 AMERICAN JURISPRUDENCE 5 (2d, West).

6 Moot Problem, ¶ 3.
7 Ibid.
8 Ibid.
9 Moot Problem, ¶ 5,6.

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details of the said contract to Mr. Leahy, the Editor of the Berkshire Chronicle, having utmost
faith in the latter’s journalistic credentials.
6. Justice Holmes of the U.S. Supreme Court in felicitous enunciation of the rationale of the
power of pardoning in the case of Biddle v. Perovich10 stated that – “A pardon in our days is not
a private act of grace from an individual happening to possess power. It is a part of the
constitutional scheme. When granted, it is the determination of the ultimate authority that the
public welfare will be better served by inflicting less than what the judgment fixed.”
7. The aforementioned view, expounded by Justice Holmes, have been approved in the case
of Kehar Singh v. Union of India.11
8. In the absence of any conclusive evidence offering any relevant insight into the mens rea
of Mr. Alito, it would not be a grossly unfounded assumption to assert that it is a matter of
coincidence for Mr. Alito to have gained information of the government’s corrupt practices only
a month before the General Elections. For the petitioner to allege, based on certain
uncorroborated news reports claiming the existence of indirect connections between Mr. Alito
and highly placed members of the UPA, that Mr. Alito purposely leaked such information only a
month prior to the General Elections with the intention of antagonizing public opinion against
the BPP, thereby helping the UBA in regaining power, it remains unsubstantiated, baseless,
misdirected and far-fetched.
9. The counsels for the respondent, would like to humbly request this court to take into
consideration that leaking of information by Mr. Alito, was undoubtedly contrary to the interests
and reputation of the company under which he was employed and would have naturally resulted
in his dismissal and/or suspension from the said company. Nevertheless, without caring for his
livelihood, Mr. Alito, in an act of selflessness, placed the interests of the public before his own.
His ultimate objective was to keep the people of this country well-informed. To say the least, the
pardon granted to Mr. Alito by the Hon. President, is an adequate and just consideration of Mr.
Alito’s selfless act, in furtherance of his responsibility as a dutiful citizen of this nation and is in
no way arbitrary, extraneous or an act of misplaced sympathy.
10. As far as the publishing of sensitive information, pertaining to the nation’s military forces
is concerned, it is imperative to mention that such information was not published as a result of
any specific direction from Mr. Alito, as he solely had the intention of revealing the corrupt
nexus between the government and the RDL and had no intention of jeopardizing national
10 274 U.S. 480 (1927).
11 Supra note 4.

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security. Mr. Alito believed that a prominent journalist like Mr. Leahy would be prudent enough
to refrain from publishing any material contained in the leaked documents, which if brought to
life would raise severe national security issue. While such ordinary prudence was not applied by
Mr. Leahy, the same was done by other newspapers, which published information only relating
to the particulars of the RDL contract and refrained from publishing such aforementioned
sensitive information.
11. Therefore, it is implied from the circumstantial conduct of Mr. Alito, that he acted in the
capacity of a whistleblower, in service of public transparency and governmental accountability.
Arguments advancing the said contention are exhaustively elaborated upon, under a subsequent
point.
12. The counsels for the respondent strongly believe the President, after taking due
consideration of Mr. Alito’s intentions to facilitate the exercise of democratic political discourse,
and that such intention had not been maligned by overt political considerations or foul play, has
rightfully granted him a full pardon.
D. Analysing the canonical basis of the grant of presidential pardoning.
13. Judicial decisions, legal text books, reports of Law Commission, academic writings and
statements of administrators and people in public life reveal that the following considerations
have been regarded as relevant and legitimate for the exercise of the power of pardon. Some of
the illustrative considerations are:12
(a) Interest of society and the convict;
(b) Seriousness and relative recentness of the offence;
(c) Post-conviction conduct, character and reputation;
(d) Deference to public opinion.
14. Subsequent to the revelation of the corrupt practices of the government, Mr. Alito
garnered tremendous public support and appreciation. The people of this country rallied behind
the courage, fortitude and selflessness of Mr. Alito and unequivocally demanded his release. As
opined by the Supreme Court in Kehar Singh13, the power to pardon is essentially a power that
rests with the people and it is entrusted by them to the highest dignitary of the State.
Furthermore, in a democracy such as this nation, the will of the people and their welfare must

12 Written submissions of Senior Counsel Soli Sorabjee in the Supreme Court of India as Amicus Curiae in Epuru
Sudhakar v. Government of Andhra Pradesh (WP (Crl.) No. 284-285/2006), pp. 5-6, accessible at http://www.ebc-
india.com/downloads/written_submissions_of_mr_soli_sorabjee_in_power_to_pardon_case.pdf.
13 Supra note 4.

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reign supreme. All Constitutional orders or proceedings, including that of granting of a pardon
must reflect the will of the people. In context of this case, the recipient of the pardon, Mr. Alito,
acted in the interest of the public, and as a consequence gained undisputed support from people
across all frontiers of the world. Hence, the decision of pardoning of Mr. Alito is a reflection of
the will of the people and the President’s prolific experience tempered with humanism prompted
him to rule in favour of Mr. Alito. In light of the afore-mentioned assertions, the counsels of the
respondent would like to re-iterate that the pardon has been granted rightfully, in deference to
public opinion and in the greater interest of society.
15. “It has occasionally been felt right to commute the sentence in deference to a widely
spread or strong local expression of public opinion, on the ground that it would do more harm
than good to carry out the sentence if the result was to arouse sympathy for the offender and
hostility to the law.”14
16. Chief Justice Taft of the U.S. Supreme Court, in his justification of the existence of the
executive power of clemency in Ex parte Grossman15 stated that – “Executive clemency exists to
afford relief from undue harshness or evident mistake in the operation or the enforcement of the
criminal law. The administration of justice by the courts is not necessarily always wise or
certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it
has always been thought essential in popular governments, as well as in monarchies, to vest in
some other authority than the courts power to ameliorate or avoid particular criminal
judgments…Our Constitution confers this discretion on the highest office in the nation in
confidence that he will not abuse it.”
17. The Law Commission, in its Report on Capital Punishment (1967) has also justified the
existence of the prerogative of mercy of the executive. To this regard, the Commission observed
that as the hands of the courts are tied down by procedure and the consideration of evidence and
materials submitted, a sentence of death may require reconsideration because:16
(a) facts placed before the court but not in a proper manner;
(b) facts discovered after the passing of the sentence;
(c) events which have developed after the passing of the sentence; among other
specified reasons which are not relevant to the context of this case.

14 Supra note 12 at p. 6.
15 267 US 87 (1925).
16 Law Commission of India, 35th Report on Capital Punishment, pp. 317-318 (1967).

12
18. Therefore, a multitude of procedural and circumstantial factors may vitiate the inherent
essence of justice as dispensed by the courts. It is to this effect, that the executive prerogative of
pardoning operates to deliver justice wherever it deems appropriate.
E. Theoretical basis of the presidential pardoning of the accused.
19. It is necessary to keep in mind, the salutary principle that: “To shut up a man in prison
longer than really necessary is not only bad for the man himself, but also it is a useless piece of
cruelty, economically wasteful and a source of loss to the community.” The aforesaid principle
was quoted by Burghess, J.C. in Nga Ku v. Queen Emperor.17
20. The prerogative of presidential pardoning, as conferred by Art. 72 is an authority which
“designedly and benignantly vest in the highest executive the humane and vast jurisdiction to
remit, reprieve, commute and pardon criminals—on whom judicial sentences may have been
imposed. Historically, it is a sovereign power; politically, it is a residuary power;
humanistically; it is in aid of intangible justice where imponderable factors operate for the
wellbeing of the community, beyond the blinkered court process.”18
21. The basis of this argument is founded on the judicially sanctioned presumption that the
President acted properly and carefully after an objective consideration of all aspects of the
matter.19 Therefore, it must be presumed that the President was just in the exercise of his
prerogative authority in granting an unconditional pardon to Mr. Alito.
22. With regard to the theoretic justification of the rationale behind the grant of pardon to
accused individuals, the Hegelian view advocates that pardons are justified only when they are
‘justice-enhancing’, that is, in certain cases justice may not be served without the grant of pardon
due to the unduly harsh nature of the sentence or due to an individual being sentenced wrongly.20
23. The Hegelian view may be linked to the larger philosophy of retribution: the retributivist
school of thought believes that pardon is only justified as an extra-judicial corrective measure to
remedy any failure of the system, such that the ultimate aim of the accused receiving just deserts
may be secured.21
24. In contrast to the retributivist view is the school of thought based on rehabilitation and
redemption, which believes that pardons may be justified even when the goal is ‘justice-neutral’,

17 (1897) U.B.R. 330 (334).

18 G. Krishna Goud v. State of Andhra Pradesh, (1976) 2 SCR 73: (1976) 1 SCC 157.
19 Maru Ram v. Union of India, AIR 1980 SC 2147: (1981) 1 SCC 107 at ¶ 55-56.
20 M. Strasser, The Limits of Clemency Power on Pardons, Retributivists, and the United States Constitution, 41

BRANDEIS L. JL. 85 (2002).

21 G. B. Wolfe, I Beg Your Pardon: A Call for Renewal of Executive Clemency and Accountability in Massachusetts,

27 B.C. THIRD WORLD L.J. 417 (2007).

13
that is, not necessarily concerned with the aim of securing remedial justice. For example, the
redemptive philosophy gives importance to the post-conviction achievements of the accused,
which the retributivists refuse to consider relevant. The redemptive school of thought justifies
pardon on the grounds of public welfare and compassion.22
25. It is argued that the modern practice of granting pardons reflects a combination of both
the abovementioned philosophies, since pardons may be granted as both justice-enhancing and
justice-neutral measures. In the case of Kehar Singh23, the Supreme Court discussed the grounds
on which the power to pardon can be exercised. Pathak, C.J. stated that the right to life and
personal liberty, as granted to citizens of India under Article 21, is of paramount importance.
Since judicial error cannot be precluded due to human fallibility, recourse from erroneous
judgments has been provided in the Constitution of India in the form of the executive power to
pardon.
26. The primary intention of Mr. Alito, in releasing classified Government documents
pertaining to the RDL contract, was to disclose the dubious and duplicitous actions of “corporate
patronage” conducted by the Government, which subsequently appeared to be evident as military
aircrafts of identical specifications were contracted to be manufactured by the RDL for “ten
times the original consideration”.24 It is nowhere clear from the context of the case, that Mr.
Alito had any intention to disclose sensitive military information that would act prejudicial to the
national security interests of Berkshire, as evident from the fact that it was only Mr. Leahy’s
indefensible exercise of his journalistic prerogative which led to the disclosure of critical military
information, while other news outlets respected the sanctity of their civic obligations to the
citizens of this country. The same obligation empowered Mr. Alito to disclose the government’s
foul play on this country’s defence apparatus, one month prior to the General Elections believing
that the public has the right to make informed decisions regarding their choice of political
representation at the federal or central level. Therefore, this case clearly fulfills the established
criteria required for authorising the grant of the pardon.
27. In light of the contended arguments before, it requires repeated consideration that the
pardoning power (of the President) is founded on the considerations of public good, and is to be
exercised on the ground that the public welfare, which is the legitimate object of all punishment,

22 Ibid.
23 Supra, note 4.
24 Moot Problem, ¶3.

14
will be as well promoted by a suspension as by an execution of the sentence. The aforesaid
observation was made by Green C.J. in Cook v. Chosen Freeholders.25

2. CONTEXTUALLY ESTABLISHING THE PUBLIC WELFARE INTENT

OF MR. ALITO.
28. The basis of any presidential pardon is the active consideration of public welfare.
Therefore, to reinforce the legitimacy of the presidential pardon, granted to Mr. Alito, it is
necessary to conclusively establish the convicted individual’s deliberate intent to act in
furtherance of public welfare. On behalf of the counsels for the respondent, the following
arguments intend to incontrovertibly demonstrate the intention of Mr. Alito to acting in the
interest of public welfare.
29. It is reasonable to argue that Mr. Alito’s actions were met with severe judicial reprimand
as his actions had allegedly compromised the national security interests of this country. At this
juncture, the counsels for the respondent would like to state that no arguments can be advanced
for the purpose of negating or disproving the fact that Mr. Alito is guilty of disclosing documents
unauthorized for public viewing to the press, which in turn resulted in grave national security
implications. However, the counsels for the respondent would like to argue that the concerns
raised in pertinence to national security concerns with regard to Mr. Alito’s actions, have
eclipsed his actual bona fide intention.
A. Establishing the whistleblower capacity of the accused.
30. As stated earlier, Mr. Alito had leaked the said confidential documents to facilitate public
transparency and government accountability. In order to establish that Mr. Alito’s intentions
were in consonance with public welfare, the counsels would like to request this court to take the
following indisputable facts into consideration:
(a) Mr. Alito was employed under the RDL at the time when he leaked the details of the
RDL contract to the press.
(b) The leaking of information regarding the RDL contract by Mr. Alito, was
undoubtedly contrary to the interests of the company as such information would be
instrumental towards revealing the existence of a corrupt nexus between the RDL and
Kagan Administration. As a result, he would have naturally been dismissed and/or
suspended from the RDL.

25 26 N. J. L., 326, 333 (1857).

15
31. A perusal of the afore-mentioned facts makes it evident that Mr. Alito, without caring for
his livelihood, in a selfless manner placed the interests of the public before his own.
In essence, Mr. Alito acted in the capacity of a “whistleblower”. For obtaining a comprehensive
definition of the term, “whistleblower” reliance may be placed upon a judgment delivered by the
Supreme Court of India in the case of Indirect Tax Practitioners’ Association v. R.K. Jain26,
wherein the Hon’ble Court had defined “whistleblower”, as a “person who raises a concern
about the wrongdoing occurring in an organization or body of people. The revealed misconduct
may be classified in many ways; for example, a violation of a law, rule, regulation and/or a
direct threat to public interest, such as health/safety violations and corruption. Whistleblowers
may make their case internally (for example, to other people within the accused organization) or
externally (for example, to regulators, law enforcement agencies, to the media or to groups
concerned with the issues)”. It is clear from all the afore-mentioned facts, that in the instant case,
Mr. Alito fits the definition of a “whistleblower” in the truest sense of the term. Mr. Alito, sensed
the existence of a corrupt nexus between the government and the RDL, which in itself, is
contrary to public interest, and reported the same by leaking documents to the press with the sole
intention of bringing out the truth. The counsels for the respondent strongly believe the
President, after taking due consideration of Mr. Alito’s intentions to facilitate the exercise of
democratic political discourse, and that such intention had not been maligned by overt political
considerations or foul play, has rightfully granted him a full pardon.
B. Non-consideration of the intention of the accused under the Official Secrets Act, 1923.
32. It may not be possible for this Court to ignore that in order to judicially review the
validity of the pardon, it is necessary to weigh Mr. Alito’s guilt against his legitimate intentions.
While it is true that Mr. Alito had voluntarily leaked documents pertaining to the RDL contract,
which in turn, led to the hampering of national security; it is also true that as per §3(2) of the
Official Secrets Act, 1923, it is not necessary to conclusively ascertain as to whether the person
accused under §3,27 actually had any conscious or deliberate intent to malign the sovereignty or
integrity of the country. Accordingly, the Sessions Court found Mr. Alito guilty.
33. As argued earlier, Mr. Alito had acted in the capacity of a whistleblower. Had he
refrained from leaking the documents, the people of this country would not have become aware
of the corrupt activities performed by their elected government and the RDL. The fact that Mr.
Alito had risked his employment under the RDL, the source of his livelihood, in carrying out his
26 (2010) 8 SCC 281.
27 §3, Official Secrets Act, 1923.

16
moral and civic duty, further consolidates that the said individual had the sole intention of
upholding public welfare, more so, when it cannot be proved from the facts of the case that the
documents containing confidential information regarding this country’s military had been
published in the newspaper as a result of any express direction from Mr. Alito.
34. As pointed out by the lawyers of the accused in the press conference, Mr. Alito believes
that a man who has access to information of government’s misdeeds has a moral and civic duty
to bring such information before the general public. Legal representatives of Mr. Alito further
stated in the press conference that such moral duty of a man obligates him to act with great
swiftness and urgency, especially when such an individual acquires access to such information
only a month before the public are about to vote a new government into power.
35. It would not be improper to assume, that a person who bore access to information
regarding the administration's questionable conduct, which if revealed, could not only jeopardize
his own career interests and his way of life, but also have large scale repercussions on the
political establishment of the country, would naturally not be in a sound state of mind to
meticulously study the entirety of the documents or exercise well-reasoned caution before
forwarding the said information to the free press. Furthermore, prolonged retention of such
information would tantamount to be in contravention to public interest. This in turn, led to severe
time constraints for Mr. Alito, within which he was required to apply his discretion before
forwarding the leaked documents to Mr. Leahy. Furthermore, it has been additionally clarified by
the lawyers of Mr. Alito in the press conference that, Mr. Alito had faith in the journalistic
credentials of and discretion possessed by Mr. Leahy. Since Mr. Alito was not in a position to
judge whether the leaked documents contained any sensitive military information or not, he
placed reliance upon Mr. Leahy, who in all certainty, would have been in a better position for
deciding which part of the leaked documents should not be published. Quite evidently, while
other newspapers exercised ordinary prudence and refrained from publishing critical military
information, Mr. Leahy failed to do the same, which ultimately led to the publication of the said
information in the Berkshire Chronicle. Hence, in light of the afore-mentioned arguments, it can
be asserted with reasonable certainty that Mr. Alito’s was not in possession of a clear and
deliberate intention to jeopardize national security. To the contrary, his actions were aimed at
public welfare.
36. Based on all the afore-mentioned arguments, the counsels believe that when Mr. Alito’s
guilt is weighed against his real intention, the latter outweighs the former.

17
37. At this juncture, the counsels for the respondent would like to state that the Latin maxim
actus reus non tacit reum nisi mens sit rea, may be deemed relevant and therefore discussed in
the context of the present case. According to the Oxford Legal Dictionary,28 the afore-mentioned
maxim means that an act does not make a person guilty of his crime unless his mind, be also
guilty. From all the above-mentioned assertions, it becomes evident that even though Mr. Alito
had leaked confidential documents regarding the RDL contract to the press, no intention on the
part of Mr. Alito in relation to undermining national security can be established. Contrary to the
afore-mentioned legal maxim, Mr. Alito was convicted under the Official Secrets Act, 1923, for
a crime he did not intend to commit. It is therefore, the humble opinion of the counsels for the
respondent that in the interest of serving justice and irrespective of the provisions of any
particular statute, which in this case is the Official Secrets Act, mens rea on part of the accused
should always be established beyond reasonable doubt before affording any amount of
punishment to the said. Due to the constricted language of the Official Secrets Act, 1923, the true
intent of Mr. Alito behind leaking the confidential documents was never recognised.
38. It may be argued by the petitioners that as per the statute and the rules framed there
under, justice had been served. However, on certain occasions, especially in cases identical to the
currently litigated one, true justice cannot be served only by the strict interpretation of the
statutory laws, devoid of principles of good conscience and equity. Such situation warranted the
intervention of the Hon’ble President, whose power to pardon under Article 72 of the
Constitution is not restricted by any legislative or statutory directive. Recognising such a
constitutional scheme intended to render justice under the most exceptional circumstances, the
Hon’ble President, using his well-founded discretion, exercised his power to pardon Mr. Alito in
the interests of public welfare and serving true justice.

3. THE IMPOSSIBILITY OF FORMULATING GUIDELINES FOR THE EXERCISE

OF PRESIDENTIAL PARDONING.
39. Under this contention, the counsels for the respondent would like to challenge the
petitioner’s jurisprudential basis of advancing the judicial review of the presidential pardoning of
Mr. Alito, which has been based on the issuance of judicial guidelines for regulating the exercise
of the President’s constitutional authority to pardon. There is established judicial precedence in

28 ELIZABETH A. MARTIN, THE OXFORD DICTIONARY OF LAW 10 (9th Ed., 2009).

18
determining the absolute nature of the presidential pardon and its wide ambit, which deems the
guidelines as merely recommendatory in nature.
40. The Court altered its stance on laying down guidelines for regulating the judicious
exercise of the power of pardoning by the President, as established in Maru Ram,29 by rejecting
the petitioner’s and not binding. Arguments, supplemented with relevant judicial extracts,
advancing the same, are as follows.
41. In Kehar Singh,30 the Supreme Court rejected the contention that in order to prevent an
arbitrary exercise of power under Article 72,31 the adjudicating Court should frame guidelines for
regulating the exercise of the power. In the said case, the Court has given a very broad ambit to
this power, stating that “there is sufficient indication in the terms of Article 72 and in the history
of the power enshrined in the provision as well as existing case-law, and specific guidelines
cannot be spelled out.”32
42. The Court explained away the apparent contradiction between Maru Ram and Kehar
Singh in Ashok Kumar v. Union of India,33 by stating that the executive guideline issued in Maru
Ram34 was “a mere recommendation and not a ratio decidendi having a binding effect.” In the
same case, the Court deliberated upon the realisation that it may not be possible to lay down any
“precise, clearly defined and sufficiently channelised guidelines”35 as Art. 72 has very wide
amplitude and contemplates “a myriad kinds and categories of cases with facts and situations
varying from case to case, in which the merits and reasons of state may be profoundly assisted
by prevailing occasion and passing time.”36
43. Therefore, by negating the binding nature of the judicial guidelines, the counsels for the
respondent assert the invalidity of the basis of the petitioner to advance any arguments sustaining
the judicial review of the pardon.
44. Moreover, it would be commonsensical for the counsels for the respondent to argue that
the purpose behind the judicial issuance of guidelines intended to obstruct a capricious, arbitrary

29 Maru Ram v. Union of India, AIR 1980 SC 2147.

30 Kehar Singh v. Union of India AIR 1989 SC 653.
31 Art. 72, Constitution of India, 1950.
32 Supra note 30.
33 AIR 1991 SC 1792, 1803-1804 : (1991) 3 SCC 498.
34 Supra note 29.
35 Kehar Singh v. Union of India, 1989 (1) SCC 204 at 217.
36 Ibid.

19
or mala fide decree of pardon, contravenes the settled judicial presumption that a President acts
properly and carefully after an objective consideration of all aspects of the matter.37
A. Pardon to be exercised on public consideration.
45. However, in consideration of the wide ambit of the Presidential prerogative of pardoning,
as enshrined under Article 72,38 and the judicially accepted impossibility of formulation of
prescriptive guidelines for the exercise of the said authority, relevance can be drawn to a
universally acceptable and a considerably simplistic approach towards a jurisprudentially sound
and constitutionally compatible criteria for determining the legitimacy of the pardon. In
pertinence to such an argument, the counsels for the respondent would like to draw the attention
of this Hon’ble Court to the observation made by Justice Kapadia in Epuru Sudhakar.39 In his
concurring judgment, the learned Judge stated that the presidential prerogative of pardon “has to
be exercised on public consideration alone.”40
46. Therefore, for a presidential pardon to be exercised on the basis of public consideration, it
must be in deference to public opinion of the accused and the public welfare intent of the
accused. It is indisputable from the facts of the case that in the immediate aftermath of Mr.
Alito’s conviction under the Official Secrets Act, 1923 by the Kensington Court of Sessions on
28th of September 2018, public opinion was overwhelmingly in favour of the accused, whom the
public hailed as a “crusader against corruption and cronyism” and as an individual “who risked
everything to hold the Government to account.”41 The public engaged in spontaneous
demonstrations demanding the release of the accused while the hashtag “JusticeforAlito” was
concurrently trending in social media sites internationally.42 Thus it is evident that a presidential
decree granting a full pardon to Mr. Alito, dated 5th of October 2018, has been passed in
deference to public opinion.43
47. As to the public welfare intent of the accused, arguments advancing the said have been
presented under a separate point of contention.

37 Supra note 30 at ¶¶ 59-60, 72, 100.

38 Supra note 31.
39 Epuru Sudhakar v. Government of A.P., AIR 2006 SC 3385 : (2006) 8 SCC 161.
40 Id.
41 Moot Problem ¶7.
42 Moot Problem ¶7.
43 Moot Problem ¶8.

20
 4. NEGATING THE INDICATIONS OF A DISCRIMINATORY
EXERCISE OF PRESIDENTIAL CLEMENCY IN THE NON-
PARDONING OF MR. LEAHY.
A. Justifying the circumstantial inability of the accused to exercise sound discretion.
48. It has already been established by the counsels for the respondent that Mr. Alito was
under tremendous mental duress and anxiety at the time when he had retrieved the confidential
documents pertaining to the RDL contract and that there was significant lack of time for him to
exercise well-reasoned discretion to determine as to whether the said documents contained any
sensitive military information or not, before forwarding such confidential documents to the press.
Aware of such a predicament, Mr. Alito thought it best to place reliance upon the editor of the
Berkshire Chronicle, Mr. Leahy. As mentioned on numerous occasions earlier, in the press
conference convened by the lawyers of Mr. Alito, it was stated that Mr. Alito had unwavering
faith upon Mr. Leahy’s journalistic credentials. As a result thereof, Mr. Alito transmitted the
documents to Mr. Leahy, with the belief that, in order to avoid any major complication, the latter
would exercise necessary caution before publishing the said documents in the newspaper.
B. Establishing the negligence in the actions of Mr. Leahy.
49. However, as is evident from the facts of this present case and quite contrary to Mr.
Alito’s presumption of Mr. Leahy’s calibre and repute, the latter had been negligent in the
exercise of his duties as a journalist and effected the publication of the entirety of the
confidential documents which not only contained particulars of the RDL contract but also
sensitive information relating to the nation’s military and air forces, which were of immense
strategic importance. Such gross negligence on the part of Mr. Leahy resulted in severe national
security implications. Here, the counsels would humbly like to bring it to the notice of this Court
that while Mr. Leahy failed to exercise caution before publishing the leaked documents, the same
was exercised by other newspapers; newspapers other than the Berkshire Chronicle refrained
from publishing any sensitive military information and restricted their publication to the
particulars of the RDL contract only. Therefore, the counsels for the respondent are of the
humble opinion that since editors and essential personnel alike, of other newspapers were
cautious and prudent enough to refrain from publishing any sensitive military information, no
arguments to the effect of justifying Mr. Leahy’s inability of exercising reasonable caution and
discretion, can be put forward especially when the journalist in question is of distinguishable
repute.

21
50. At this juncture, the counsels would like to refer to the Norms of Journalistic Conduct
2018, issued by the Press Council of India. Clause (ii) of guideline number 16 states that
“selection of the matter for publication such as reports/articles/letters lies within the discretion
of an editor”.44 As a result, it is reasonable to conclude that Mr. Leahy, being the Editor, was the
sole person responsible for selection of the documents for publication that is, to check if the
documents transmitted to him contained any information, the revelation of which could harm the
national security of this country. Hence, there lies no scope for the shifting of the blame of
negligence upon any person other than Mr. Leahy. Furthermore, Clause (i) of guideline number
23 states that “the newspaper shall, as a matter of self-regulation, exercise due restraint and
caution in presenting any news, comment or information which is likely to jeopardise, endanger
or harm the paramount interests of the State or society, or the rights of individuals with respect
to which reasonable restrictions imposed by law on the right to freedom of speech and
expression under clause (2) of Article 19 of the Indian Constitution”.45 Such restraint or caution
as warranted by guideline 23 under Norms of Journalistic Conduct, 2018, was evidently, not
exercised by Mr. Leahy.
51. In addition to the afore-mentioned arguments, the counsels would like to refer to the
jurisprudence behind the constitutional sanction for the freedom of press. Even though there is
no Article in the Constitution, exclusively providing for the freedom of press, freedom of speech
and expression is inclusive of the same. This assertion is supported by the observation made by
the Supreme Court of India, in the matter of Bennett Coleman & Co. v. U.O.I , wherein the Court
stated that, “Although Article 19(1)(a) does not mention the freedom of the press, it is the well
settled view of the Supreme Court that freedom of speech and expression includes freedom of the
press”.46 Hence freedom of press is on the same plane as a fundamental right guaranteed to any
individual. As a direct consequence thereof, it may be argued that the arrest and imprisonment of
Mr. Leahy, who was merely carrying his duty as a journalist i.e. as a member of the press, is an
infringement upon the freedom of the press. Such assertion or argument, however, is not
foolproof and can be negated by a mere perusal of Article 19(2) of the Constitution. While sub-
clause (a) of Article 19(1) of the Constitution of India guarantees right to freedom of speech and
expression, Article 19(2) states that, “Nothing in sub-clause (a) of clause (1) shall affect the

44 Press Council of India, Norms of Journalistic Conduct, 2018, at p. 22, accessible at

http://presscouncil.nic.in/WriteReadData/userfiles/file/NORMS.pdf.
45 Id. at p. 31.
46 (1972) 2 SCC 788.

22
operation of any existing law…. in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State…. or incitement to an offence.” Furthermore, in the
matter of Harijai Singh Re,47 the Supreme Court of India had stated that, “Freedom of the press,
however, is not absolute, unlimited or unfettered at all times and circumstances as giving an
unrestricted freedom of speech and expression would amount to an uncontrolled license. The
freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible.”
Since, in this present case, Mr. Leahy did not fulfill his duty of being responsible, which in turn
led to compromising national security, his actions can under no circumstance be immune from
penal measures under the protective umbrella of Article 19(1). Moreover, there is no scope
whatsoever for Mr. Leahy to be protected under his individual right to freedom of speech and
expression since his actions have compromised the integrity of this country.
52. In light of all the above arguments, it is impossible to infer that the pardon granted to Mr.
Alito is discriminatory and that such pardon should have been granted to Mr. Leahy as well. To
support this assertion, it is imperative to re-iterate that Mr. Alito’s actions were guided by his
intent to act in furtherance of public welfare, in contrarian to the actions of Mr. Leahy, which
were plain negligent and highly lackadaisical; his lack of professionalism and downright neglect
towards exercising adequate caution, lead to the jeopardizing of national security. Furthermore,
Mr. Leahy’s act is in direct contravention with not only the guidelines established under the
Norms of Journalistic Conduct, 2018 but also in violation of Article 19(2) of the Constitution.
Hence, Mr. Leahy has rightfully been exempted from a Presidential pardon under Article 72.48
C. Exclusion of a person from grant of clemency is a matter of policy.
53. Additionally, in the matter of Government of A.P. v. M.T. Khan, the Supreme Court of
India had stated that “if the government considers it expedient that the power of clemency be
exercised in respect of a particular category of prisoners the government had full freedom to do
so and also for excluding certain categories of prisoners which it thought expedient to exclude.
To extend the benefit of clemency to a given case or class of cases is a matter of policy and to do
it for one or some, they need not do it for all, as long as there is no insidious discrimination
involved.”49 The main essence of the above-mentioned observation is that the exercise of the
power of clemency or pardon and the grant thereof, extended to a particular person and exclusive

47 (1996) 6 SCC 466.

48 Art. 72 Constitution of India, 1950.
49 2004 (1) SCC 616.

23
of another person, is a matter of policy and cannot be questioned unless there is any visible
insidious discrimination. In this matter, it has already been established that there has been no
discrimination in granting of the pardon. Contrary to the pardon being termed as discriminatory,
it may be stated that the pardon was not granted to Mr. Leahy since his actions were not
inherently inclusive of an intention to work towards public welfare; which in turn contradicts
with Mr. Alito, whose actions were in consonance with such public welfare. This, all the more
consolidates the reason why pardon was granted to Mr. Alito and not to Mr. Leahy. Hence, the
non-granting of pardon to Mr. Leahy is not discriminatory and as such, the pardon granted to Mr.
Alito cannot be revoked on grounds of being discriminatory.

5. JUDICIAL INADMISSIBILITY OF EVIDENCE UNDER ARTICLE

74(2) OF THE CONSTITUTION OF BERKSHIRE.
54. A plain textual reading of Article 74(2) of the Constitution clearly states that no court has
the jurisdiction to enquire into the existence and/or the nature of the advice tendered to the
President by the Council of Ministers, as is procedurally required under Article 74 of the
Constitution. This addresses the primary contention of the counsels for the respondent under this
argument.
A. Argumentative application of Article 361.
55. Article 361(1) of the Constitution provides that the President shall not be answerable to
any court for any act done or purported to be done by him in the performance of the duties of his
office. It would, therefore, be meaningless to bring the question of ministerial advice before the
Courts.50
B. Judicial precedents establishing the inadmissibility of ministerial advise under Art.74.
56. In furtherance of the contentions made earlier, the courts cannot, in view of Article 74(2),
issue any order or process for the production of records51 to show what advice, if any,52 was
given by the ministers to the President, in any particular case. The protection would extend to
minutes of Cabinet proceedings and all papers relating thereto,53 including communications
between the ministers inter se.54 The Cabinet papers which also include papers brought into

50 4 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 4562 (8th Ed., LexisNexis (2008).
51 State of Punjab v. Sodhi, AIR 1961 SC 493 : (1961) 2 SCR 371 : (1961) 2 SCJ 691, at ¶ 3, 42.
52 Rao Birinder v. Union of India, AIR 1968 P&H 441, at ¶ 9, 15.
53 Supra note 49.
54 Vidyasagar v. Krishna, AIR 1965 Pat. 321, at ¶ 5.

24
existence for the purpose of preparing submission to the Cabinet (are) protected from disclosure
not by reason by their contents, but because of the class to which they belong.55
57. In the result, even when an aggrieved person challenges an act done by the President on
the grounds of unconstitutionality or mala fide(s),56 it is for him not only to make all averments
in support of his allegation but also to produce all materials or information upon which the
President acted, including the ministerial advice. The Government is not obliged to furnish any
such information57 nor can the Court make any inquiry into the question of ministerial advice
unless those materials gave already been admitted or disclosed by the Government to the
public.58 Therefore, it is incumbent upon the counsels for the petitioner to submit conclusive
evidence in support of their contended allegation, indicating any unconstitutional or mala fide
basis of the presidential pardoning of Mr. Alito.
58. In Daypack System (P) Ltd.,59 it was held that the privilege under Article 74(2) cannot be
waived.60
59. Moreover, it requires to be noted that no definitive or admissible evidence exists to
support any arguments alleging the transmission of supposedly mala fide nature and extraneous
content of the advice submitted by the Council of Ministers to the President under Article 74 of
the Constitution. Any judicial consideration of executive functionality under Article 74 of the
Constitution, tantamounts to a violation of the constitutionally enshrined doctrine of Separation
of Powers.
60. Therefore, the counsels for the respondent plead for the sustainment of constitutional
norms, and the rejection of any aspersions insinuating uncorroborated and baseless allegations of
an otherwise constitutionally and jurisprudentially founded exercise of executive authority under
Article 74.

55 Daypack Systems (P) Ltd. v. Union of India, AIR 1988 SC 782.

56 R.C. Cooper v. Union of India, AIR 1970 SC 564 : (1970) 1 SCC 448 at ¶ 233-234.
57 Ibid.
58 4 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 4565 (8th Ed., LexisNexis (2008).
59 Supra note 55.
60 Ibid; See also note 58.

25
 PRAYER

In light of the facts stated, arguments advanced and authorities cited, the counsels for the
respondent most humbly request this Court to adjudge and declare that:
1. The present writ petition is dismissed.
2. The pardon granted to Mr. Michael Alito does not suffer from any discrepancy and thus
such pardon remains sustained.
The counsels for the respondent would also like to request this Court to pass any such order
which it deems fit in the interest of justice, equity and good conscience.

On Behalf of,
Union of Berkshire,
Counsels for the Respondent.
Sd/

26