Memorial

LAFA v. Gen. Rush-fa-rum & others

RISHABH GOEL- arguing for the petitioner.
Issues
1. Should the April Ordinance be stricken down?
Do the people have fundamental rights in the first place?
2. Are the coup and the subsequent laws passed by Gen. Rush-fa-rum valid at all?
Summary of Arguments
1. Rule of Law as opposed to Rule of Man-
As far back as 2000 B.C. the great Greek philosopher, Aristotle had preached that the
Rule of law is preferable to the Rule of Man. It is the law that is superior and even
government has to work within a framework of certain basic or ground rules. The
concept of Rule of Law was explained by Prof. A.V. Dicey. These are rules which
make it possible to foresee with a fair degree of certainty how the authority will use its
coercive powers in given circumstances. Rule of Law is something stable and regular.
It excludes any uncertainty and arbitrariness. People owe their allegiance to the rule of
law and not to the rule of man. Therefore, if government acts beyond the scope of rule
of law their action is invalid and people may not follow it.
In our case, the actions of Gen. Rush-fa-rum are highly arbitrary and guided by his
whims and fancies rather than the rule of law. Rule of law demands stability and
regularity but the action of Gen. Rush-fa-rum of abrogating the constitution and all of
a sudden taking away the fundamental rights violate the principles of the Rule of law
and hence and hence are invalid.
2. The Utilitarian Concept-
Philosophers such as Bentham propounded the utilitarian concept which simply lay
down the rule of greatest happiness of the greatest numbers. Majority of the
population of Pures!n are farmers. The abolition of zamindari system was in favor of
majority population and the April Ordinance passed by Gen. Rush-fa-rum which
reversed the previous order was against the principle of greater happiness of greatest
numbers and hence should be declared invalid.
3. John Locke, who was an English philosopher, explained that the purpose of all
government is simply to preserve the members of a given society in their lives,
liberties and possessions. The power of government is conceded on trust by the people
to the ruler for him to rule only for the public good. So long as government fulfils this
purpose its laws would be binding and obeyed. But when government ceases to protect
or begins to encroach on the natural rights to life, liberty and estate, the government
loses raison dtre(reason for existence).
In our case, first of all Gen. Rush-fa-rum has not been given any power by the trust of
the people and he has proclaimed himself to be the supreme leader. He is not acting in
the benefit of the people and is acting completely out of self-interest. He has taken
away their fundamental rights and passed the April Ordinance which is against
majority of the people and hence his government does not have any reason for
existence and should be declared invalid.
4. Kelson says that in order for a new grundnorm to be valid one of the conditions that
must be satisfied is efficacy. By efficacy is meant general acceptance by the people
[and effectiveness of the legal system]. Gen. Rush-fa-rum actions have upset the
people. They do not support his actions. The very law through which people had
hoped to finally end their troubles and prosper as individuals, i.e. abolishing of
zamindari system has been reversed by this new self-proclaimed leader. Also he has
abolished fundamental rights and as fundamental Rights are an indispensable feature
of a civilized society, they are bound not to confirm to the laws passed by Gen. Rush-
fa-rum. Besides they consider Bawilal as their hero. All this goes to show that people
have not accepted the regime change and therefore it does not satisfy the condition of
efficacy and hence the establishment of a new grundnorm fails. As a result of which
his actions should be declared unconstitutional and all laws passed by him invalid.
5. Hart has put across this concept of fundamental rule of recognition. For a law to be
valid it must pass the test of the rule of recognition. Essentially the rule of recognition
demands that in order to for rule to be valid, it must be the standard social behavior for
people to follow the rule. People must exert social pressure on one another to conform
to it and any deviation from it will face legitimate criticism. In the present case there
has been a sudden shift in the legal system. People have been following a democratic
process and now suddenly a self-proclaimed leader is making rules that are against the
people. People do not confirm to it and any deviation from such rule will be
appreciated, leave alone, criticized. Therefore, in the absence of any social pressure
there is no obligation on the people to follow any of the rules passed by Gen. Rush-fa-
rum.
6. Absence of principle of necessity-
An action by a usurper may be validated if certain adverse circumstances, such as
breakdown of constitutional machinery, exist and such actions are necessary in order
to control the chaos and prevent the state from falling apart. But in our case no such
circumstances existed and the country was functioning rather smoothly before Gen.
Rush-fa-rum began the military coup. Secondly, the actions of Gen. Rush-fa-rum are
not far from being called essential but aimed at consolidating the usurpers unlawful
control, that is, acts intrinsically illegal or offensive. These measures are invalid and
should be rejected by the courts.
7. People have fundamental Rights and April Ordinance must be stricken down-
Under natural law, there are some rights so important as to be considered fundamental,
the reduction of which disqualifies a society from being rated civilized. These rights
are natures inalienable gift to human existence. Any government under no
circumstance may take away these fundamental rights from the people because they
are not given by them in the first place. As the Indian Supreme Court judge Justice
Khanna wrote in his judgment in the case of ADM Jabalpur v. Shivkanth Shukla that,
even the Indian Constitution does not give fundamental rights to its citizens, it only
recognizes them. They are an essential characteristic of a civilized society.
In our case, Gen. Rush-fa-rum action of abolishing fundamental rights is invalid. And
as the concept of zamindari, as enforced by the April Ordinance, is violative of basic
fundamental rights of the farmers, the Ordinance must be stricken down.
8. Politics is a civil and not a military matter
From time immemorial the military has always been subject to the civil order. Things
must stay that way otherwise there would be a confusion of roles in the state and
questions of good governance would be thrown to the dogs. Politics is a civil and not a
military matter. The vocation of the military is defense not politics. The act of Gen.
Rush-fa-rum is terrorism because he is in effect issuing the following terroristic
command to the politicians in power: political power or your life. Such a command is
not different from that of the bandit who holds a gun to a persons head and bellows:
your purse or your life. Therefore, the court must not accept the coup as it will stand
against everything that the state strives for.

For all the reasons mentioned above, the coup should be declared invalid and April
Ordinance must be stricken down.