TEAM CODE: V

1ST NATIONAL DR. D. Y. PATIL MOOT COURT COMPETITION,2019

BEFORE THE SUPREME COURT OF INDIANA

PUBLIC INTEREST LITIGATION

W.P. NO. ………………/ 2019
IN THE MATTER CONCERNING ARTICLES 14, 19, 21, 35 A, 367 AND 370 OF THE
CONSTITUTION OF INDIANA

IN THE MATTER OF

AMIR KHAN
(PETITIONER)

v.

UNION OF INDIANA & OTHERS

(RESPONDENTS)

ON SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE OF INDIANA

AND HIS COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT OF INDIANA

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................... 4

INDEX OF AUTHORITIES/ BIBLIOGRAPHY & WEBLIOGRAPHY................................. 6

STATEMENT OF FACTS ...................................................................................................... 10

STATEMENT OF JURISDICTION........................................................................................ 11

STATEMENT OF ISSUES ..................................................................................................... 12

ARGUMENTS ADVANCED ................................................................................................. 13

I. THE INSTANT PETITION UNDER ARTICLE 32 IS MAINTAINABLE .................................... 13

[I.I]. THE PETITIONERS ARE CITIZENS HAVING BONA FIDE INTEREST AND HENCE HAVE A

LOCUS STANDI ................................................................................................................... 13

[I.II]. THE POWER OF JUDICIAL REVIEW ............................................................................ 14

[I.III]. THE FUNDAMENTAL RIGHTS OF THE CITIZENS OF KASHMIRA UNDER PART III HAVE

BEEN VIOLATED ................................................................................................................ 15

[I.IV]. ALTERNATIVE REMEDY IS NOT A BAR .................................................................... 16

[I.V]. DUE PROCEDURE TO PASS THE ORDER WAS NOT FOLLOWED ................................... 17

II. THE FUNDAMENTAL RIGHTS OF THE PETITIONER AND CITIZENS OF THE STATE OF

KASHMIRA HAVE BEEN VIOLATED......................................................................................... 17

[II.I]. PRESIDENTIAL ORDER NO. GSR551 (E) 272 AND ACTIONS TAKEN THEREAFTER IN

KASHMIRA ARE VIOLATIVE OF ART. 14 ............................................................................. 18

[II.II]. PRESIDENTIAL ORDER NO. GSR551 (E) 272 AND ACTIONS TAKEN THEREAFTER IN

KASHMIRA ARE VIOLATIVE OF ART. 19 ............................................................................. 20

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[II.III]. PRESIDENTIAL ORDER NO. GSR551 (E) 272 AND ACTIONS TAKEN THEREAFTER IN

KASHMIRA ARE VIOLATIVE OF ART. 21 ............................................................................. 22

III. THE STATE OF KASHMIRA COULD NOT BE BIFURCATED DURING THE IMPOSITION OF THE

PRESIDENT’S RULE ............................................................................................................... 25

IV. ART. 370 OF THE CONSTITUTION OF INDIANA COULD NOT HAVE BEEN INVOKED TO

AMEND ART. 367 THEREOF & LEGISLATIVE ASSEMBLY OF KASHMIRA CANNOT BE

INTERPRETED AS CONSTITUENT ASSEMBLY .......................................................................... 28

PRAYER .................................................................................................................................. 32

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LIST OF ABBREVIATIONS

Abbreviations Expansions
& And
§ Section
A.I.R. All India Reporter
A.P. Andhra Pradesh
All Allahabad
Anr. Another
Art. Article
Bom. Bombay
Cl. Clause
Co. Company
Corpn. Corporation
CrLJ. Criminal Law Journal
Ed. Edition
Govt. Government
Guj. Gujarat
HC High Court
Hon’ble Honourable
i.e. that is
Id. Idem
Ker. Kerala
Ltd. Limited
Suptd. Superintendent
M.P. Madhya Pradesh
Mad. Madras
Ors. Others
p. page
Pat. Patna
S.C. Supreme Court
S.C.C. Supreme court Cases

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S.C.J. Supreme Court Journal

S.C.R. Supreme Court Record
U.P. Uttar Pradesh
u/Art Under Article
u/S Under Section
v. versus
Vol. volume
W.B. West Bengal

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INDEX OF AUTHORITIES/ BIBLIOGRAPHY & WEBLIOGRAPHY

CASES

A. K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 .......................................................... 23

A.L. Kalra v. Project & Equipment Corpn., (1984) 3 S.C.C. 316 ........................................... 19

A.P. Aggarwal v. Govt. of NCT of Delhi, A.I.R. 2000 S.C. 205: (2000) 1 S.C.C. 600 .......... 19

Air India Statutory Corporation v. United Labour Union, A.I.R. 1997 S.C. 645 .................... 24

Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722 ...................................................................... 18

Andhra Industrial Works v. Chief Controller Imports, A.I.R. 1963 S.C. 1295 ....................... 15

Ashok Kumar v. Union of India, (1991) 3 S.C.C. 498 ............................................................ 30

Bandhua Mokti Morcha v. Union Of India, A.I.R. 1986, S.C. 802 ......................................... 13

Bangalore Medical Trust vs. B.S. Muddappa and Ors., A.I.R. 1991 S.C. 1902 ...................... 14

Basheshar Nah v. I.T. Commissioner, A.I.R.1959, S.C. 149................................................... 15

Bennet Coleman v. Union of India, A.I.R. 1973 S.C. 106 ...................................................... 21

Bodhisattwa Gautam v. Subra Chakraborty, A.I.R. 1996 S.C. 722 ......................................... 14

Budhan Choudhry v. The State of Bihar, A.I.R. 1955 S.C. 191 .............................................. 19

CERC v UOI, A.I.R. 1995 S.C. 922 ........................................................................................ 24

Chairman, Railway Board v. Chandrima Das, (2002) 2 S.C.C. 465 ....................................... 14

Charan Singh v. State of Punjab, A.I.R. 1997 S.C. 1052 ........................................................ 24

Chiranjit Lal Choudhuri v. Union of India, 1950 S.C.R. 869 .................................................. 19

D. C. Saxena (Dr.) v. Hon’ble The Chief Justice of India, A.I.R. 1996 S.C. 2481( ................ 21

D.S. Nakara v. Union of India, A.I.R. 1983 S.C. 130.............................................................. 18

Dalmia Cement Bharat Limited v. UOI, (1996) 10 SCC 104 .................................................. 24

Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457 ........................................................ 16

E. P. Royappa v. State of Tamil Nadu, A.I.R. 1974 SC 555 ................................................... 18

Federation of Bar Association of Karnataka v. Union of India, A.I.R. 2000 S.C. 2544; ........ 15

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Fertilizer Corporation Kamgar Union (Regd.), Sindri and Ors. v. Union of India and Ors.,

A.I.R. 1981 S.C. 344 ............................................................................................................ 15

Gujarat Water Supply v. Unique Electro (Gujarat), A.I.R. 1989 S.C. 973 .............................. 21

H.P. v. Parent of a Student of Medical College, (1985) 3 S.C.C. 169 ..................................... 13

Habeeb Mohamad v. State of Hyderabad 1953 S.C.R. 661 ..................................................... 19

Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554 .............................................. 21

JP Ravidas v. Navyuvak Harijan Utthapan Multi Unit Industrial Cooperative Society, A.I.R.

1996 S.C. 2151..................................................................................................................... 24

K. K. Kochunni v. State of Madras, A.I.R. 1959 S.C. 725 ...................................................... 16

Kathi Raning Rawat v. State of Saurashtra 1952 S.C.R. 435; ................................................. 19

Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 1295 ............................................. 16

Lachmandas Kewalram Ahuja v. State of Bombay 1952 S.C.R. 710 ..................................... 19

Lata Singh v. State of U.P., (2006) 5 S.C.C. 475 .................................................................... 23

LIC v. Manubhai D. Shah, Prof., A.I.R. 1993 S.C. 171 .................................................... 20, 21

M. Nagaraj v. Union of India, A.I.R. 2007 S.C. 71 ................................................................. 14

Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 ....................................................... 18

Manohar Lal Sharma v. Principal Secretary, (2014) 2 S.C.C. 532 .......................................... 14

Mr ‘X’ v. Hospital ‘Z’, (1998) 8 S.C.C. 296 ........................................................................... 24

Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, (1995) 2 Supp. (2) S.C.C. 549 .. 24

Namboodiripad E. M. Sankaran v. Nambiar T. Narayanan, A.I.R. 1970 S.C. 2015 ............... 21

Nar Singh Pal v. Union of India, (2000) 3 S.C.C 589 ............................................................. 15

Odessey v. Lokvidayan, A.I.R. 1988 S.C. 1642 ...................................................................... 21

Olga Tellis v. Bombay Municipal Corpn., (1985) 3 S.C.C. 545 ............................................. 24

Pathumma v. State of Kerala, (1978) 2 S.C.C. 1 ..................................................................... 22

People’s Union for Civil Liberties v. Union of India, (1997) 1 S.C.C. 637 ............................ 20

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People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 S.C.C. 301 ............... 21

PUDR v. Union of India, A.I.R. 1982, S.C. 1473 ................................................................... 13

Qasim Razvi v. State of Hyderabad 1953 S.C.R. 581 ............................................................. 19

Ram Bahadur Rai v. State of Bihar, A.I.R. 1975 S.C. 223 ...................................................... 21

Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279 ............................................. 19

Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124 .............................................. 15, 21

S.P Gupta v. Union Of India, A.I.R. 1982, S.C. 149 ............................................................... 13

Shayara Bano v. Union of India, (2017) 9 S.C.C. 1 ................................................................ 20

Sonapur Tea Co. Ltd. v. Mst. Mazirunnessa (1962) 1 SCR 724 ............................................. 30

Sri Sri Sri K.C. Gajapati Narayan Deo v. State of Orissa, 1954 S.C.R. 1 : A.I.R. 1953 S.C. 375

.............................................................................................................................................. 29

State Bank India v. Santosh Gupta, (2017) 2 S.C.C. 538 ........................................................ 27

State of Bombay v. F.N. Balsara 1951 S.C.R. 682 .................................................................. 19

State of H.P. v. A Parent of a student of Medical College, Simla, (1985) 3 SCC 169 ............ 30

State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196 ............................................................... 21

State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.............................................................. 19

State of West Bengal v. Anwar Ali Sarkar 1952 S.C.R. 284................................................... 19

Sube Singh v. State of Haryana, (2001) 7 S.C.C. 545 ............................................................. 20

Supdt., Central Prison v. Dr Ram Manohar Lohia, A.I.R. 1960 S.C. 633 ............................... 22

Supreme Court Advocates on Record Association v. Union of India, (1993) 4 S.C.C. 441 ... 27

Suresh Chandra Tewari v. District Supply Officer, A.I.R. 1992 All. 331 ............................... 16

T.N. GodavarmanThirumulkpad v. Union of India (2007) 15 S.C.C. 283 .............................. 14

Western U.P Electric Power & Supply Co. Ltd. v. State of U. P., A.I.R. 1970 S.C. 21.......... 19

Whirlpool Corporation v. Registrar of Trademarks, A.I.R. 1999 S.C. 22 ............................... 16

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WR. Moran Proprietary Ltd v. Deputy Commissioner of Taxation for N.S.W., (1940) 3 All

E.R. 269 ............................................................................................................................... 30

ZEE Telefilms Ltd. v. Union of India, A.I.R. 2005 S.C. 2677 ................................................ 14

BOOKS

Black’s Law Dictionary (10th Ed. 2014).

VII Constitutional Assembly Debates, (1948).

Durga Das Basu, Commentary on the Constitution of India, (9th Ed. 2014).

H.M. Seervai, Constitutional Law, (4th Ed. 2013).

M.P Jain, Indian Constitutional Law (7th Ed. 2016).

M.P Jain, Indian Constitutional Law (8th Ed. 2019).

Universal’s, The Constitution of India, Bare Act, (2019).

V.G Ramachandran, Law of Writs, (6th Ed., 2006).

Wade and Phillips, Const. & Adm. Law, 87 (1977).

STATUTES

The Constitution of India, 1950.

The Constitution of Jammu and Kashmir, 1956.

WEBSITES

www.scconline.com

www.manupatrafast.in

www.westlaw.com

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STATEMENT OF FACTS

BACKGROUND

The Constitution of Indiana, a democratic country with 28 States and 7 Union Territories,
provides for special status to some states due to certain conditions that prevailing therein. In
the year 1952, the Delhi Agreement was signed which conferred the residuary powers to the
State of Kashmira. Later, in 1975 Indira-Sheikh Pact came into existence that gave special
status to the State of Kashmira and provided for its governance under Art. 370 of the
Constitution.

THE CHALLENGE

In view of the constant demand, special status of the State of Kashmira was withdrawn and a
separate Union Territory for Kashmira with legislature and Ladakha without legislature was
created by the Union Government. Hence, the state no more owed special status and was
brought on equal footing like other states. When President’s rule was in force in the State of
Kashmira, the President, under clause (1) of Art. 370 of the Constitution of Indiana published
a constitutional order GSR551 (E) 272, dated 05.08.2019 via gazette of Indiana.

The amendment to Art. 367 was made by the Union Government acting upon the report of
governor without the advice of legislative assembly, which was a pure administrative function.
After this the Government was confronting such situations that it had to take certain
“preventive measures” in the state.

PRESENT STATUS OF CASE

The present writ petition has been filed by Mr. Amir Khan, a member of an NGO, People Union
for Democratic Rights for quashing the Constitution (Application to Kashmira) Order, 2019 as
the restrictions imposed are in violation of the fundamental rights of the people the old State
of Kashmira.

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STATEMENT OF JURISDICTION

The Petitioner has approached this Hon’ble Court through a petition filed under Art. 321 of the

Constitution of Indiana by way of Public Interest Litigation owing to the gross violation of

Fundamental Rights enumerated under Part III of the Constitution of Indiana, 1950.

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

1
Art. 32, The Constitution of India, 1949:

Remedies for enforcement of rights conferred by this Part: (1) The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 ).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

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STATEMENT OF ISSUES

ISSUE I

WHETHER THE INSTANT PETITION FILED U/ART 32 BY WAY OF PUBLIC INTEREST

LITIGATION IS MAINTAINABLE?

ISSUE II

WHETHER THE PRESIDENTIAL ORDER NO. GSR551 (E) 272 BIFURCATING THE STATE OF

KASHMIRA VIOLATE ANY FUNDAMENTAL RIGHTS?

ISSUE III

WHETHER THE BIFURCATION OF STATE OF KASHMIRA DURING THE PRESIDENT’S RULE IS

CONSTITUTIONAL AND LEGAL?

ISSUE IV

WHETHER ART 370 OF THE CONSTITUTION OF INDIANA CAN BE USED TO AMEND ART 367

AND CONSEQUENTLY, CONSTITUENT ASSEMBLY CAN BE INTERPRETED AS LEGISLATIVE

ASSEMBLY?

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ARGUMENTS ADVANCED

I. THE INSTANT PETITION UNDER ARTICLE 32 IS MAINTAINABLE

1. It is humbly submitted before this Hon’ble Court that the instant petition filed under Art.
32 is maintainable. The arguments for the petitioner to buttress the aforesaid are divided
into five. Firstly, the Petitioner is a citizen having a bona fide interest and hence has a locus
standi [I.I]. Secondly, this Hon’ble Court has the power of judicial review [I.II]. Thirdly,
the fundamental rights of the citizens have been violated [I.III]. Fourthly, alternative
remedy is not a bar [I.IV], and lastly, the due procedure while passing the said Order was
not followed [I.V]. These contentions are delved into subsequently.

[I.I]. THE PETITIONERS ARE CITIZENS HAVING BONA FIDE INTEREST AND HENCE HAVE A

LOCUS STANDI

2. The petitioner in the instant matter is a citizen of Indiana who is entitled to invoke the
jurisdiction of this Hon’ble Court under Art. 32 of the Constitution of Indiana inasmuch as
his and his fellow citizens’ fundamental rights guaranteed under Part III of the Constitution
have been infringed /violated. The petitioner has the locus standi to appear before this court
and as such, the maintainability of the petition must not be in question.
3. “Locus standi” is the right of a party to appear and be heard on a question before any
tribunal. In landmark cases2, the SC has evolved a new rule that any member of the public,
acting bona-fide and having sufficient interest can maintain an action for redressal of public
wrong or public injury (pro bono public) by way of a PIL. The SC held in a case that when
an aggrieved party or a public-spirited individual file a petition against an executive that
has remained remiss in performing its duties under law, the court must entertain such
matter3, as has happened in the instant matter too.
4. The Supreme Court has also ruled that to exercise its jurisdiction under Art 32, it is not
necessary that the affected person should personally approach the Court. The Court can
itself take cognizance of the matter and proceed suo motu or on a petition of any public

2
S.P Gupta v. Union Of India, A.I.R. 1982, S.C. 149; PUDR v. Union of India, A.I.R. 1982, S.C. 1473; Bandhua
Mokti Morcha v. Union Of India, A.I.R. 1986, S.C. 802 (India)..
3
H.P. v. Parent of a Student of Medical College, (1985) 3 S.C.C. 169(India)
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spirited individual or body4. Here too, the petitioner is appearing on behalf of the numerous
other citizens of Kashmira and his petition is in the interest of all members thereof.
5. In the context of Public Interest Litigation, however, the Court in its various Judgments has
given widest amplitude and meaning to the concept of locus standi.5 The Hon’ble SC has
held that public spirited citizens having faith in rule of law are rendering great social and
legal service by espousing cause of public nature. They cannot be ignored or overlooked
on technical or conservative yard stick of the rule of locus standi or absence of personal
loss or injury.6 Therefore, a private interest case can also be treated as a public interest case.

6. In the instant matter, the Petitioner has a locus standi as fundamental rights of the citizens
of the State of Kashmira at large are being violated and the Petitioner has a bona fide
interest to redress the same. Further, the Petitioner, belonging to the People’s Union for
Democratic Rights is a public-spirited individual who is concerned about the pathetic plight
of the citizens of Kashmira and hence the locus standi of the petitioner must not be in
question.
7. Furthermore, in any case it has been held by the SC time and again that if the court finds
the question raised to be of substantial public interest, the issue of locus standi of the person
placing the relevant facts and materials before the court becomes irrelevant.7 Either ways,
the Petitioner has a locus standi and the petition is accordingly maintainable.

[I.II]. THE POWER OF JUDICIAL REVIEW

8. It is humbly submitted before this Hon’ble Court that judicial review is at the heart of the
Constitution. It forms the basic structure of the Constitution and is inalienable. The
Constitutional Courts, i.e., the SC and the HCs have been vested with this extraordinary
power to ensure that the rights of the citizens are duly protected.8 The Court exercising the
power of judicial review under Arts. 32, 2269 and 13610 of the Constitution act as a “sentinel
on the qui vive”11.
9. In the case of M. Nagaraj v. Union of India,12 the Apex Court said:

4
Bodhisattwa Gautam v. Subra Chakraborty, A.I.R. 1996 S.C. 722 (India).
5
Chairman, Railway Board v. Chandrima Das, (2002) 2 S.C.C. 465 (India).
6
Bangalore Medical Trust vs. B.S. Muddappa and Ors., A.I.R. 1991 S.C. 1902(India).
7
T.N. GodavarmanThirumulkpad v. Union of India (2007) 15 S.C.C. 283 (India).
8
Manohar Lal Sharma v. Principal Secretary, (2014) 2 S.C.C. 532 (India).
9
Art 226, the Constitution of Indiana, 1949.
10
Art 136, the Constitution of Indiana, 1949,
11
ZEE Telefilms Ltd. v. Union of India, A.I.R. 2005 S.C. 2677 (India).
12
M. Nagaraj v. Union of India, A.I.R. 2007 S.C. 71 (India).
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“Judicial review of legislation enacted by the Parliament within limited powers

under the controlled constitution which we have, has been a feature of our law
and this is on the ground that any law passed by a legislature with limited powers
is ultra vires if the limits are transgressed.”

The Court further observed,

“Thus, judicial review is an essential feature of our constitution because it is

necessary to give effect to the distribution of legislative power between
Parliament and State legislatures, and is also necessary to give practicable
content to the objectives of the Constitution embodied in Part-III and in several
other Articles of our Constitution.”

10. Here, in the instant case passing of the Constitution (Application to Kashmira) Order, 2019
dated 05.08.2019 by the President under Art. 370(1) is ultra vires and has been passed in a
whimsical fashion. The Kashmira (Reorganisation) Act, 2019 is also arbitrary and was
passed in a callous manner without observing due process of law. The Parliament has
attempted to transgress its limited powers, hence gives way to judiciary to intervene.

[I.III]. THE FUNDAMENTAL RIGHTS OF THE CITIZENS OF KASHMIRA UNDER PART III HAVE

BEEN VIOLATED

11. It is humbly submitted before this Hon’ble Court that whenever there is an infringement of
a Fundamental Right, an action can lie in the SC under Art. 3213. The purpose for which it
can be invoked is to enforce Fundamental Rights. The violation of Fundamental Right is
the sine qua non of the exercise of the right conferred by Art. 3214.

12. The Fundamental Rights are fundamental in the sense that human liberty is predicated on
their availability and vice-versa, and thus they cannot be waived.15 Sudden amendment of
Art. 370 of the Constitution without observing the procedure established by law and
subsequent actions taken in furtherance of the same have caused grave violations of
fundamental rights enshrined in Part III of the Constitution.
13. The Court has emphasised in the case of Romesh Thappar v. State of Madras16 that,

13
Andhra Industrial Works v. Chief Controller Imports, A.I.R. 1963 S.C. 1295 (India).
14
Federation of Bar Association of Karnataka v. Union of India, A.I.R. 2000 S.C. 2544; Fertilizer Corporation
Kamgar Union (Regd.), Sindri and Ors. v. Union of India and Ors., A.I.R. 1981 S.C. 344 (India).
15
Basheshar Nah v. I.T. Commissioner, A.I.R.1959, S.C. 149; Olga Tellis v. Bombay Municipal Corporation,
A.I.R. 1986, S.C. 140; Nar Singh Pal v. Union of India, (2000) 3 S.C.C 589 (India).
16
A.I.R. 1950 S.C. 124 (India).
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“Article 32 provides a "guaranteed" remedy for the enforcement of those rights,

and this remedial right is itself made a fundamental right by being included in
Part III. This Court is thus constituted the protector and guarantor of
fundamental rights, and it cannot, consistently with the responsibility so laid
upon it, refuse to entertain applications seeking protection against infringements
of such rights.”

It is submitted that the Fundamental Rights of the Petitioner and the citizens of Kashmira
under Arts. 1417, 1918 and 2119 have being violated. Access to the most basic of necessities
has been cut, leaders have been put under detention for inexplicable reasons, and arbitrary
actions have become the order of the day.
14. Further, it has been held by the SC that once the court is satisfied that the Petitioner’s
fundamental right has been infringed, it is duty bound to afford relief to the Petitioner, and
he need not have any lack of other adequate remedy or exhausted all other remedies. The
court has no discretion but to issue an appropriate writ in his favour.20 These violations of
Fundamental Rights have been further dealt in detail.

[I.IV]. ALTERNATIVE REMEDY IS NOT A BAR

15. Art. 32 is in itself a Fundamental Right and, therefore, the existence of an alternative
remedy is no bar to the Supreme Court for entertaining a petition under Art. 32 for the
enforcement of a Fundamental Right. The Court has held that a petition cannot be dismissed
on the ground of alternative remedy21 in case of infringement of fundamental rights
enshrined in Part III of the Constitution.22
16. When once the Court is satisfied that the petitioner's Fundamental Right has been infringed,
it is not only its right but also its duty to afford relief to the petitioner, and he need not
establish either that he has no other adequate remedy, or that he has exhausted all remedies
provided by law, but has not obtained proper redress. When the petitioner establishes
infringement of his Fundamental Right, the Court has no discretion but to issue an
appropriate writ in his favour.23

17
Art 14, the Constitution of Indiana, 1949.
18
Art 19, the Constitution of Indiana, 1949.
19
Art 21, the Constitution of Indiana, 1949.
20
Supra, note 7.
21
Suresh Chandra Tewari v. District Supply Officer, A.I.R. 1992 All. 331(India).
22
Whirlpool Corporation v. Registrar of Trademarks, A.I.R. 1999 S.C. 22(India).
23
Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457; K. K. Kochunni v. State of Madras, A.I.R. 1959 S.C.
725; Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 1295(India).
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[I.V]. DUE PROCEDURE TO PASS THE ORDER WAS NOT FOLLOWED

17. Sub-Cl. (d) of Cl. (1) of Art. 370 of the Constitution states,
“(d) such of the other provisions of this Constitution shall apply in relation to
that State subject to such exceptions and modifications as the President may by
order24 specify:
Provided that no such order which relates to the matters specified in the
Instrument of Accession of the State referred to in paragraph (i) of sub-clause
(b) shall be issued except in consultation with the Government of the State
Provided further that no such order which relates to matters other than those
referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.”

18. Article 370(1)(d) lays down that other provisions of the Constitution, i.e., the ones not
mentioned in the said Art, can be applied to the State with or without modifications by
order of the President. However, such an Order is not to be issued by the President-
(2) without the concurrence of the State Government if the matters to be specified
in the Order relate to matters other than those mentioned in the Instrument.

Here, the concurrence of Government of Kashmira was not sought before the issuance of
the Constitution (Application to Kashmira) Order, 2019 dated 05.08.2019 by the President,
i.e. quashing Art. 370. Such a decision, hence, ought to be challenged by way of Judicial
Review and quashed at the hands of this Hon’ble Court.

II. THE FUNDAMENTAL RIGHTS OF THE PETITIONER AND CITIZENS OF THE STATE OF

KASHMIRA HAVE BEEN VIOLATED

19. It is humbly submitted that the fundamental rights of the Petitioner and citizens of State of
Kashmira enshrined under Part III of the Constitution of Indiana are being violated
consequent of abrogation of Art. 370 and actions taken therein after. By and far, the rights
of the citizens of Kashmira enshrined under Arts. 14, 19 and 21 are being violated, each of
which shall be individually dealt with herein under.

24
Constitution (Application to Jammu and Kashmir) Order, 1954 (C.O. 48) as amended from time to time.
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[II.I]. PRESIDENTIAL ORDER NO. GSR551 (E) 272 AND ACTIONS TAKEN THEREAFTER IN
KASHMIRA ARE VIOLATIVE OF ART. 14
20. Art. 14 of the Constitution of Indiana guarantees equality before law and equal protection
of law to all persons25. Known as the Right to Equality, it has been held to be a basic
structure of the Indianan Constitution and often referred to as the essence of democracy26.
The order passed by the President violates Art 14 for having no rational nexus with the
objects of the proclamation, for being manifestly arbitrary and for being in violation of the
basic feature of federalism.
21. The Constitution is wedded to the concept of equality. The Art. got expanded conceptually
and today encompasses numerous doctrines within it. Any state action today that fails to
pass the tests contemplated by these doctrines is liable to be declared void. It is humbly
submitted before this Hon’ble Court that the principle of equality has been violated in the
instant matter as the people of Kashmira are not being treated equally like the other citizens
of the country.
22. One of the fundamental tests enunciated in the landmark case of E. P. Royappa v. State of
Tamil Nadu27 is the “test of arbitrariness”. Arbitrary actions taken by the State are
antithetical to equality and any such action is liable to be struck down in accordance with
the aforesaid case and a catena of various other cases28. In Royappa, the Court held:

“..... equality is antithetic to arbitrariness. In fact equality and arbitrariness

are sworn enemies; one belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute monarch. Where an act is
arbitrary it is implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Art. 14”

23. The Constitution Bench pertinently observed in Ajay Hasia v. Khalid Mujib29 and put the
matter beyond controversy when it said “wherever therefore, there is arbitrariness in State
action whether it be of the Legislature or of the Executive or of an “authority” under Article
12, Article 14 immediately springs into action and strikes down such State action”. This
view was further elaborated and affirmed in D.S. Nakara v. Union of India30 . In Maneka
Gandhi v. Union of India31 it was observed that Article 14 strikes at arbitrariness in State

25
Art. 14, the Constitution of India, 1949.
26
Supra, note 12.
27
A.I.R. 1974 SC 555(India).
28
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722(India).
29
Id.
30
A.I.R. 1983 S.C. 130(India).
31
A.I.R. 1978 S.C. 597(India).
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action and ensures fairness and equality of treatment.32 Thus the state action in the present
matter is contended to be arbitrary, irrational, unfair and unjust.
24. Article 14 of the Constitution ensures equality among equals; its aim is to protect persons
similarly placed against discriminatory treatment. It does not however operate against
rational classification. A person setting up a grievance of denial of equal treatment by law
must establish that between persons similarly circumstanced, some were treated to their
prejudice and the differential treatment had no reasonable relation to the object sought to
be achieved by the law.33
25. As such, even before the test of arbitrariness the SC propounded the “test of permissible
classification” or “doctrine of reasonable classification” in the Anwar Ali Sarkar case34.
In the case of Budhan Choudhry v. The State of Bihar,35 it was held on the basis of various
other judgements36 that,

“It is now well established that while article 14 forbids class legislation, it does
not forbid reasonable classification for the purposes of legislation. In order,
however, to pass the test of permissible classification two conditions must be
fulfilled, namely,

(i) that the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left out of
the group and,

(ii) that that differentia must have a rational relation to the object sought to be
achieved by the statute in question.”

26. Also, in A.P. Aggarwal v. Govt. of NCT of Delhi,37 it was said:

“…conferment of power together with a discretion which goes with it to enable
proper exercise of the power and therefore it is coupled with a duty to shun
arbitrariness in its exercise and to promote the object for which the power is
conferred which undoubtedly is public interest and not individual or private
gain, whim or caprice of any individual.”

27. It is humbly submitted before this Hon’ble Court that no intelligible differential exists in
the instant matter as the Constitution (Application to Kashmira) Order, 2019 dated

32
A.L. Kalra v. Project & Equipment Corpn., (1984) 3 S.C.C. 316(India).
33
Western U.P Electric Power & Supply Co. Ltd. v. State of U. P., A.I.R. 1970 S.C. 21(India).
34
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75 (India).
35
A.I.R. 1955 S.C. 191(India).
36
Chiranjit Lal Choudhuri v. Union of India, 1950 S.C.R. 869; State of Bombay v. F.N. Balsara 1951 S.C.R. 682;
State of West Bengal v. Anwar Ali Sarkar 1952 S.C.R. 284; Kathi Raning Rawat v. State of Saurashtra 1952
S.C.R. 435; Lachmandas Kewalram Ahuja v. State of Bombay 1952 S.C.R. 710; Qasim Razvi v. State of
Hyderabad 1953 S.C.R. 581; Habeeb Mohamad v. State of Hyderabad 1953 S.C.R. 661; Ram Krishna Dalmia v.
Justice S.R. Tendolkar, 1959 SCR 279(India).
37
A.P. Aggarwal v. Govt. of NCT of Delhi, A.I.R. 2000 S.C. 205: (2000) 1 S.C.C. 600(India).
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05.08.2019 by the President has been passed without any intelligible differentia or
considering relevant aspects. Furthermore, there is no reasonable nexus in this matter as
there is no rational or logical thought behind scrapping the Art. 370 and amending Art. 367

of the Constitution of Indiana. If the State Government fails to support its action on the
touchstone of the above principle, then this decision has to be held as arbitrary and
discriminatory.38
28. A bare perusal of the aforementioned shows that arbitrary decisions of the Government do
not stand the test of equality under Art. 14. In the instant matter, the decision to revoke and
abrogate Art. 370 was taken arbitrarily and without any application of mind, thereby failing
the test of manifest arbitrariness39 and simply vitiates the rule of law in Indiana.

[II.II]. PRESIDENTIAL ORDER NO. GSR551 (E) 272 AND ACTIONS TAKEN THEREAFTER IN
KASHMIRA ARE VIOLATIVE OF ART. 19
29. It is humbly submitted before this Hon’ble Court that the Presidential Order No. GSR551
(E) 272 and other subsequent actions are in violation of Fundamental Rights guaranteed in
Art. 1940 under Part III of the Constitution of Indiana. Art. 19(1) provides,

“Protection of certain rights regarding freedom of speech, etc.—

(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions 2 [or co-operative societies];
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or
business.(…)”

30. The Freedom of Speech and Expression means the right to express one's convictions and
opinions freely, by word of mouth, writing, printing, picture, or electronic media,41 or in
any other manner (addressed to the eyes or the ears). It would thus not only include the
Freedom of the Press, but the expression of one's ideas by any visible representation, such
as gestures and the like. In short, freedom of expression includes the freedom of

38
Sube Singh v. State of Haryana, (2001) 7 S.C.C. 545(India).
39
Shayara Bano v. Union of India, (2017) 9 S.C.C. 1 (India)
40
Art. 19, the Constitution of Indiana, 1949.
41
LIC v. Manubhai D. Shah, Prof., A.I.R. 1993 S.C. 171; People’s Union for Civil Liberties v. Union of India,
(1997) 1 S.C.C. 637(India).
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propagation of ideas, their publication and circulation42 and the right to answer the criticism
levelled against such views;43 the right to acquire and impart ideas and information about
matters of common interest.44
31. Freedom of Expression is a preferred right very zealously guarded by the Supreme Court.45
It is indispensable for the operation of the democratic system 46 and for self-development
and setting up a homogeneous egalitarian society.47 When a person is talking on telephone,
he is exercising his right to freedom of speech and expression.48
32. Therefore, the Petitioner submits that the act of cutting telephone lines, jamming networks
in the name of ‘preventive measures’ in Kashmira is violative of their right to free speech
and expression under Art. 19(1)(a) of the Constitution of Indiana. There are certain
restrictions imposed on Art. 19(1)(a) in the Cl. (2) itself, but these restrictions are checked
by the “Doctrine of Reasonableness” which says that the restrictions imposed must be
reasonable, in the sense that they should not be irrational or arbitrary. It is difficult to give
the definition of the word “reasonable”49.
33. There is no definite test to adjudge reasonableness of a restriction. It varies from case to
case. Each case is to be judged on its own merits, demerits and no abstract standard or
general pattern of reasonableness is applicable uniformly to all cases. In the case of State
of Madras v. V. G. Row,50 it was held:

“It is important in this context to bear in mind that the test of reasonableness,
wherever prescribed, should be applied to each individual statute impugned, and
no abstract standard or general pattern, of reasonableness can be laid down as
applicable to all cases.”

34. Even if the restriction imposed under Art. 19(2), is that of public order still it is not
necessary that it is reasonable and justifiable. It has been held that in order to be reasonable,
“restrictions must have reasonable relation to the object which the legislation seeks to
achieve and must not go in excess of that object”. The restriction made “in the interests of

42
Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124(India).
43
LIC v. Manubhai D. Shah, Prof., A.I.R. 1993 S.C. 171(India).
44
Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554(India).
45
Odessey v. Lokvidayan, A.I.R. 1988 S.C. 1642(India).
46
Bennet Coleman v. Union of India, A.I.R. 1973 S.C. 106; Namboodiripad E. M. Sankaran v. Nambiar T.
Narayanan, A.I.R. 1970 S.C. 2015; Ram Bahadur Rai v. State of Bihar, A.I.R. 1975 S.C. 223(India).
47
D. C. Saxena (Dr.) v. Hon’ble The Chief Justice of India, A.I.R. 1996 S.C. 2481(India).
48
People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 S.C.C. 301(India).
49
Gujarat Water Supply v. Unique Electro (Gujarat), A.I.R. 1989 S.C. 973(India).
50
A.I.R. 1952 S.C. 196(India).
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public order” must also have reasonable relation to the object to be achieved i.e. the public
order. If the restriction has no proximate relationship to the achievement of public order, it
cannot be said that the restriction is a reasonable restriction within the meaning of the said
clause.51
35. In the case of Pathumma v. State of Kerala,52 the Apex Court said,

“Courts interpret the constitutional provisions against the social setting of the
country so as to show a complete consciousness and deep awareness of the
growing requirements of the society, the increasing needs of the nation, the
burning problems of the day and the complex issues facing the people which the
legislature in its wisdom, through beneficial legislation, seeks to solve.

The judicial approach should be dynamic rather than static, pragmatic and not
pedantic and elastic rather than rigid. It must take into consideration the
changing trends of economic thought, the temper of the times and the living
aspirations and feelings of the people. This Court while acting as a sentinel on
the qui vive to protect fundamental rights guaranteed to the citizens of the
country must try to strike a just balance between the fundamental rights and the
larger and broader interests of society, so that when such a right clashes with
the larger interest of the country it must yield to the latter.”

36. In the instant matter, the social setting in the State of Kashmira is in question. Both the
order passed and restrictions imposed, hinder as well as challenge the interests of society,
henceforth are totally irrational and unreasonable. Also, the burden to show that the
restriction is reasonable lies on the State.
37. Also, the act of arresting and detaining political leaders and other public figures, is gross
violation of the Fundamental Rights under Sub-Cl. (a) and (d) of Cl. (1) of Art. 19 as it
refrains their right to freely speak, express and move. Also, their violation is not under the
purview of any reasonable restriction, as elaborated earlier.
[II.III]. PRESIDENTIAL ORDER NO. GSR551 (E) 272 AND ACTIONS TAKEN THEREAFTER IN
KASHMIRA ARE VIOLATIVE OF ART. 21

38. The Presidential Order passed is in violation of Art. 21 guaranteed as Fundamental Right
under Part III of the Constitution of Indiana. Art. 21 provided,
“Protection of life and personal liberty. No person shall be deprived of his life
or personal liberty except according to procedure established by law.”

51
Supdt., Central Prison v. Dr Ram Manohar Lohia, A.I.R. 1960 S.C. 633(India).
52
(1978) 2 S.C.C. 1(India).
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39. Art. 21 lays down that no person shall be deprived of his life or personal liberty except
according to the ‘procedure established by law’. The most important words in the
provision are procedure established by law. In Maneka Gandhi’s case,53 the most
significant and creative aspect is the re-interpretation of the expression ‘procedure
established by law’. It was observed that the procedure must satisfy certain requisites in
the sense of being fair and reasonable. The procedure cannot be arbitrary, unfair and
unreasonable.
40. Thus, the procedure in Art. 21 must be right, just and fair and not arbitrary, fanciful or
oppressive, otherwise, it would be no procedure at all and the requirement of Art. 21 would
not be satisfied. The Court reached the conclusion of holding Arts. 21, 19 and 14 are not
mutually exclusive but inter-linked.
41. In Kashmira certain political leaders and prominent public figures have been detained,
which is a violation of their personal liberty, which primarily means freedom from
physical restraint of person by incarceration or otherwise54 under Art. 21. Also, the
imposition of S. 144 of Code of Criminal Procedure, 1973 by the District Magistrate in
the name of 'preventive measures' is in violation of not only Art. 21 but also that of Art.
19(1)(b), as the restrictions imposed are arbitrary, unjust, unfair and unreasonable.
42. In the case of Lata Singh v. State of U.P.,55 it was said:
“This is a free and democratic country, and once a person becomes a major he
or she can marry whosoever he/she likes. If the parents of the boy or girl do not
approve of such inter-caste or inter-religious marriage the maximum they can
do is that they can cut-off social relations with the son or the daughter, but they
cannot give threats or commit or instigate acts of violence and cannot harass
the person who undergoes such inter-caste or inter-religious marriage. We,
therefore, direct that the administration/police authorities throughout the
country will see to it that if any boy or girl who is a major undergoes inter-caste
or inter-religious marriage with a woman or man who is a major, the couple is
not harassed by anyone nor subjected to threats or acts of violence, and anyone
who gives such threats or harasses or commits acts of violence either himself or
at his instigation, is taken to task by instituting criminal proceedings by the
police against such persons and further stern action is taken against such
persons as provided by law.”

Here, in Kashmira people are not allowed to assemble together or meet, therefore most of
the marriages are being postponed or cancelled. The Right to Marry of a person stands

53
Supra, note 31.
54
A. K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27(India).
55
(2006) 5 S.C.C. 475(India).
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‘suspended’, which could only be done if a person was suffering from a communicable
venereal disease or was impotent.56
43. The Supreme Court includes within the ambit of Art. 21, the right to Livelihood. In Olga
Tellis v. Bombay Municipal Corpn.,57 it was said:

“....the question which we have to consider is whether the right to life includes
the right to livelihood. We see only one answer to that question, namely, that it
does. The sweep of the right to life conferred by Article 21 is wide and far-
reaching. It does not mean merely that life cannot be extinguished or taken away
as, for example, by the imposition and execution of the death sentence, except
according to procedure established by law. That is but one aspect of the right to
life. An equally important facet of that right is the right to livelihood because, no
person can live without the means of living, that is, the means of livelihood.”

44. It is humbly submitted before this Hon’ble Court that in the instant matter the people are
being deprived of the basic right to livelihood as the restrictions imposed are not
reasonable, fair and just. People are not able to go out to work because of restrictions
imposed on movement and curfew-like situations. The SC further observed in Olga Tellis
case,58:
“The State may not, by affirmative action, be compellable to provide adequate
means of livelihood or work to the citizens. But, any person, who is deprived of
his right to livelihood except according to just and fair procedure established by
law, can challenge the deprivation as offending the right to life conferred by
Article 21.”

45. The Supreme Court has ruled that social justice, right to economic justice, right to
economic equality, economic empowerment of the weaker sections of the society
constitute Fundamental Rights. The aim of social justice is to attain substantial degree of
social, economic and political equality. Social justice and equality are complementary to
each other.59 Here, these basic principles are being violated. The people in Kashmira are
being deprived of even the basic amenities, necessary for their social and economic
existence; also, the political stability is already in question as various political leaders have
been detained.

56
Mr ‘X’ v. Hospital ‘Z’, (1998) 8 S.C.C. 296(India).
57
(1985) 3 S.C.C. 545(India).
58
Id.
59
CERC v UOI, A.I.R. 1995 S.C. 922; JP Ravidas v. Navyuvak Harijan Utthapan Multi Unit Industrial
Cooperative Society, A.I.R. 1996 S.C. 2151; Dalmia Cement Bharat Limited v. UOI, (1996) 10 SCC 104;
Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, (1995) 2 Supp. (2) S.C.C. 549; Air India Statutory
Corporation v. United Labour Union, A.I.R. 1997 S.C. 645; Charan Singh v. State of Punjab, A.I.R. 1997 S.C.
1052(India).
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46. The Constitution of Kashmira inherits the values of socialism, secularism, democracy and
republicanism from the preamble of the Constitution of Indiana in as much as it gives a
preambular recognition of the fact of the State's accession to the Indian Union, and further
expressly reiterates the values of liberty, equality and fraternity in its preamble, identical to
the preamble of the Constitution of Indiana. Furthermore, all residents of the state are
guaranteed the fundamental rights under Part III of the Constitution of Indiana. All of the
aforesaid are being grossly violated in the present case.

III. THE STATE OF KASHMIRA COULD NOT BE BIFURCATED DURING THE IMPOSITION OF

THE PRESIDENT’S RULE

47. It is humbly submitted that the State of Kashmira could not be bifurcated during the
pendency of the President’s Rule in the State. The President’s rule was imposed in the state
way back in the year 2018, and ever since, against the mandate of the Indianan Constitution,
no elections were conducted to restore normalcy to the state and bring back the legislative
assembly. In the pendency of the President’s rule, the State was bifurcated into the union
territories of Kashmira and Laddakha.
48. The Petitioner relies upon the submissions mentioned herein under to substantiate the stand
that the bifurcation of the state in the aforesaid manner.
The erstwhile Art. 370(1)60 of the Indianan Constitution provided,
“370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything contained in this Constitution,—
(a) The provisions of article 238 shall not apply now in relation to the state of
Jammu and Kashmir;
(b) the power of Parliament to make laws for the said state shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in
consultation with the Government of the State, are declared by the President to
correspond to matters specified in the Instrument of Accession governing the
accession of the State to the Dominion of India as the matters with respect to
which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the
Government of the State, the President may by order specify.
Explanation [1950 wording]: For the purpose of this article, the Government of
the State means the person for the time being recognised by the President as the
Maharaja of Jammu and Kashmir acting on the advice of the Council of
Ministers for the time being in office under the Maharaja's Proclamation dated
the fifth day of March, 1948;

60
Art. 370, The Constitution of Indiana, 1949.
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Explanation [1952 wording]: For the purpose of this article, the Government of
the State means the person for the time being recognized by the President on the
recommendation of the Legislative Assembly of the State as the Sadr-i-
Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the
Council of Ministers of the State for the time being in office.
(c) the provisions of article 1 and of this article shall apply in relation to that
State;
(d) such of the other provisions of this Constitution shall apply in relation to
that State subject to such exceptions and modifications as the President may
by order specify:
Provided that no such order which relates to the matters specified in the
Instrument of Accession of the State referred to in paragraph (i) of sub-clause
(b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those
referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph

(ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of
that clause be given before the Constituent Assembly for the purpose of framing
the Constitution of the State is convened, it shall be placed before such Assembly
for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the
President may, by public notification, declare that this article shall cease to be
operative or shall be operative only with such exceptions and modifications and
from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State
referred to in clause (2) shall be necessary before the President issues such a
notification.”

49. In terms of Article 370, the provisions of Article I and 370 shall apply in relation to the
State of Jammu and Kashmir. With regards to matters relating to the Instrument of
Accession, President of India can issue orders in “consultation” with the Stare
Government whereas for applying other provisions of the Constitution of India, with such
exceptions and modifications as the President may by order specify the “concurrence” of
the State government is required.
50. A better perusal of Art. 370(1) (d) shows that the President to provide for the application
of “such of the other provisions” of the Indianan Constitution to Kashmira with any
modifications that he would so decide. The very use of the phraseology, “other” implies
that the makers of the Constitution intended to keep out of its purview Arts. 1, 238 and 370,
which are the only provisions referred to in the said Art. A sincere consideration of the Art.

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will show that the order issued by the President lacked any authority and the Art. Could
have been amended only by the Parliament.
51. In addition to the same, the second proviso to same clause also states that the decision as
to any such application, i.e., application of “such other provisions” only with the
“concurrence” of the state assembly. The term concurrence is different from
“consultation” mentioned in the preceding proviso61. Concurrence implies absolute
permission whereas consultation is optional. Accordingly, without agreement from the
State Legislative Assembly and in pendency of the President’s rule, the amendment could
not have been brought about.
52. In the case of State Bank of India v. Santosh Singh,62 it was held that:

“The first thing that is noticed in Article 370 is that the marginal note states that
it is a temporary provision with respect to the State of Jammu & Kashmir.
However, unlike Article 369, which is also a temporary provision limited in point
of time to five years from the commencement of this Constitution, no such limit
is to be found in Article 370. Despite the fact that it is, therefore, stated to be
temporary in nature, clause (3) of Article 370 makes it clear that this article
shall cease to be operative only from such date as the President may by public
notification declare. And this cannot be done under the proviso to Article 370(3)
unless there is a recommendation of the Constituent Assembly of the State so to
do.”

53. Article 370 limits the President's power to apply to the state only items in the Union and
Concurrent Lists; after consultation with the state if they are already comprised in the
Instrument of Accession, namely defence, foreign affairs and communications. But if they
go beyond those, the concurrence of the state's constituent assembly is necessary. However,
till it is "convened", the government of the state can give its concurrence; but as per Art
370(2), it is always subject to its ratification by the constituent assembly.
54. Henceforth, the report of the Governor could not be considered on par with concurrence
given by state assembly as he is a Centre’s appointee, i.e. the office of the Governor is
occupied by a non-elected representative of the Central Government itself. The Governor
has no powers to make decisions on behalf of the people being an unelected representative.
Moreover, the Governor is also supposed to act with the aid and advice of the Council of
Ministers and such decisions taken in absentia thereof does not hold in the eyes of the law.

61
Supreme Court Advocates on Record Association v. Union of India, (1993) 4 S.C.C. 441 (India).
62
(2017) 2 S.C.C. 538 (India)

.
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55. Therefore, it is humbly submitted before this Hon’ble Court at the time of President’s Rule
under Art. 356 of the Constitution of Indiana, the Constitution (Application to Kashmira)
Order, 2019 dated 05.08.2019, should not have been passed without the mandatory
concurrence of the Government of Kashmira.

IV. ART. 370 OF THE CONSTITUTION OF INDIANA COULD NOT HAVE BEEN INVOKED TO

AMEND ART. 367 THEREOF & LEGISLATIVE ASSEMBLY OF KASHMIRA CANNOT BE

INTERPRETED AS CONSTITUENT ASSEMBLY

56. It is humbly submitted that amendment of Art. 367 of the Constitution of Indiana by way
of the said Presidential order is also in contravention to the provisions of the Constitution
of Indiana.
57. It is submitted that while the President may have modified Art. 367(4) (d) as it is applicable
to the State of Kashmira, a similar amendment has not been made either to Article 367(4)
(d) or Art. 370 (3) of the Indianan Constitution itself by Parliament. The President’s power
to modify the Indianan Constitution under Art. 370(1) (d) is only limited to Kashmira. The
power to amend the Constitution vests exclusively with Parliament.
58. Art. 36763 of the Indianan Constitution in its original form provided,
“Interpretation: (1) Unless the context otherwise requires, the General Clauses
Act, 1897 , shall, subject to any adaptations and modifications that may be made
therein under Article 372, apply for the interpretation of this Constitution as it
applies for the interpretation of an Act of the Legislature of the Dominion of India
(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament,
or to Acts or laws of, or made by, the Legislature of a State, shall be construed as
including a reference to an Ordinance made by the President or, to an Ordinance
made by a Governor, as the case may be
(3) For the purposes of this Constitution foreign State means any State other than
India: Provided that, subject to the provisions of any law made by Parliament, the
President may by order declare any State not to be a foreign State for such
purposes as may be specified in the order PART XX AMENDMENT OF THE
CONSTITUTION”
However, post the amendment introduced by way of the Presidential order, a clause “4”
has been added, which reads such:

63
Art. 367, the Constitution of India, 1949.
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“(4) For the purposes of this Constitution as it applies in relation to the State of
Jammu and Kashmir—
(a) References to this Constitution or to the provisions thereof shall be construed as
references to the Constitution or the provisions thereof as applied in relation to
the said State;
(b) references to the person for the time being recognized by the President on the
recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat
of Jammu and Kashmir, acting on the advice of the Council of ministers of the
State for the time being in office, shall be construed as references to the
Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including
references to the Governor of Jammu and Kashmir acting on the advice of his
Council of Ministers; and
(d) In proviso to clause (3) of Article 370 of this Constitution, the expression
“Constituent Assembly of the State referred to in clause (2)” shall read
“Legislative Assembly of the State.”

59. It is humbly submitted that Art. 367 could not be amended in this fashion by way of a mere
Presidential order. The Presidential Order amending Article 367 draws its authority from
Article 370 (1). Article 370 (1) deals with the power of the Parliament to make laws for the
State of Jammu and Kashmir. It does not provide the President the power to amend sundry
provisions of the Constitution. An amendment to the Constitution can only be made under
Article 368. It requires a 2/3rd majority of Parliament, present and voting. This has not
been attempted, and leaves the legality of the Presidential Order in serious doubt.
60. It is humbly submitted before this Hon’ble Court Cl. (2) of the Presidential Order purports
to amend Art. 367 of the Constitution; however, the effect of these amendments is to bring
about changes in the text of Art. 370 of the Constitution, via Art. 367. In particular, Sub-
Cl. (d) of Cl. (2) of the Presidential Order stipulates that “in proviso to clause (3) of Art.
370 of this Constitution, the expression “Constituent Assembly of the State referred to in
Cl. 2” shall read “Legislative Assembly of the State.”
61. It is further respectfully submitted that the Presidential Order, in effect, amends Art. 370
of the Constitution; it is a violation of the “Doctrine of Colourable legislation”. The
doctrine in simple words means, “what cannot be done directly, cannot be done indirectly.”
In the case of Sri Sri Sri K.C. Gajapati Narayan Deo v. State of Orissa,64 it was held:

64
1954 S.C.R. 1 : A.I.R. 1953 S.C. 375(India).
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“It may be made clear at the outset that the doctrine of colourable legislation
does not involve any question of bona fides or mala fides on the part of the
legislature. The whole doctrine resolves itself into the question of competency of
a particular legislature to enact a particular law. If the legislature is competent
to pass a particular law, the motives which impelled it to act are really
irrelevant. On the other hand, if the legislature lacks competency, the question
of motive does not arise at all.”

62. It is only when a legislature which has no power to legislate frames a legislation so
camouflaging it as to appear to be within its competence when it knows it is not, it can be
said that the legislation so enacted is colourable legislation. If the legislature has
transgressed the limits of its powers and if such transgression is indirect, covert or
disguised, such legislation is described as colourable in legal parlance. If in “pith and
substance,” the legislation does not belong to the subject falling within the limits of its
power but is outside it, the mere form of the legislation will not be determinate of the
legislative competence.65
63. If, therefore, Art. 370 cannot be directly amended through a Presidential Order (as
demonstrated below), neither can it be amended through the device of inserting a new
provision into Article 367, in relation to the State of Kashmira.
64. Further, assuming that the President did indeed have the power to pass the order under
Article 370 (1), the same could only have done with the concurrence of the State
Government. In fact, the order itself begins by saying that it has been made “in exercise of
powers conferred by clause (1) of Article 370 of the Constitution, the President with
concurrence of the Government of State of Jammu and Kashmir”.
65. Further, stating that the Constituent Assembly of Kashmira will now be the legislative
assembly is also a huge falsehood. The President’s order has amended Art 367, which is
basically an interpretation clause of the constitution of India. After this presidential
amendment, Article 367 declares that “the expression ‘Constituent Assembly of the
State…’ in Article 370 (3) shall be read to mean ‘Legislative Assembly of the State’”. If
this interpretation is taken further, the Parliament today may be considered as the
constituent assembly.
66. Not having a constituent assembly for Jammu and Kashmir is a major impediment in
changing the provisions in Article 370. The constituent assembly is specifically aimed at

65
Ashok Kumar v. Union of India, (1991) 3 S.C.C. 498; State of H.P. v. A Parent of a student of Medical College,
Simla, (1985) 3 SCC 169; WR. Moran Proprietary Ltd v. Deputy Commissioner of Taxation for N.S.W., (1940)
3 All E.R. 269; Sonapur Tea Co. Ltd. v. Mst. Mazirunnessa [(1962) 1 SCR 724(India).
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drafting the Constitution for Kashmira. After approving the constitution, the CA disbanded
itself in 1957. Before dissolving itself, the CA finalised some changes and facilitated even
the abrogation of Article 370.
67. But it is subject to the recommendation of constituent assembly of J&K. This means if the
Union wants to alter the constitutional relationship between the J&K and rest of India, they
should first constitute a constituent assembly for the state in accordance with the norms and
then seek its recommendation.
68. This is not a mere procedural aspect but a substantive requirement for altering the
‘constitution’ of a state. The legislative assembly of a state or parliament at the Centre is
basically representative in character, which is endowed with the power of amending the
constitution. It must act within the sphere and scope determined by the constitution of the
nation.
69. It can amend but cannot rewrite the entire constitution or abrogate it completely. The
constituent assembly alone can have the required sovereign authority to draft a new
constitution in place of the earlier. The difference between the legislative house and the
constituent assembly is that the first has to exercise its powers as per the constitution, while
the latter develops the constitution.
70. Both are not same, though appear to exercise legislative functions. Madhav Khosla, a junior
fellow at the Harvard Society of Fellows further expanded on this, saying,

“Indeed, it is precisely this distinction that is at the heart of India’s basic

structure doctrine that prevents certain constitutional amendments on the
ground that Parliament, which exercises representative authority, is limited and
cannot create a new constitution and thereby exercise sovereign authority.”

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PRAYER

Wherefore, in the light of the issues raised hereinabove, arguments advanced and authorities

relied upon, the counsel for the Petitioner humbly pray before this Hon’ble Supreme Court of

Indiana to kindly adjudge and be pleased to declare and/or issue:

1. The instant petition is maintainable;

2. A writ of the nature of Mandamus or any other order/writ declaring the President’s rule
as inoperative in the State of Kashmira;
3. A writ in the nature of Mandamus or any other writ/order setting aside and declaring
the concurrence given by the Governor of Kashmira as void;
4. A writ of the nature of Mandamus or any other order/writ declaring that the Presidential
Order GSR551 (E) 272 is ultra vires the Arts. 14, 19 and 21 and hence void ab initio
and inoperative;
5. Directions to the Election Commission to conduct free and fair elections in the State of
Kashmira and/or
6. Any other order/directions/writ that this Hon’ble Court may deem fit in the interest of
equity, justice and good conscience.

For this act of kindness, the Petitioner, as in duty bound, shall ever humbly pray.

DRAWN ON:
FILED ON:

Sd/-
Counsels for the Petitioner

MEMORIAL ON BEHALF OF THE PETITIONER