S. H. M. L.C.

’S 2nd STATE LEVEL MOOT COURT COMPETITION 2020

TEAM CODE -

H.R.S.P.M’S SARSENAPATI HAMBIRRAO MOHITE LAW COLLEGE,

RAJGURUNAGAR

IN THE HON’BLE SUPREME COURT OF INDIYANA UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIAYANA, 1950

IN THE MATTER OF

ARTICLE 2, 3, 367, 370, 35 A OF THE CONSTITUTION OF INDIAYANA, 1950

WRIT PETITION NO.________/2020

REPUBLIC GROUP OF PEOPLE…………………………………….PETITIONER

V.

UNION OF INDIYANA………………………………..…………………RESPONDENT

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE HON’BLE SUPREME COURT OF INDIYANA

MEMORIAL ON BEHALF OF THE PETITIONER

Name of the College: Yashwantrao Chavan Law College, Parvati, Pune-09

Name of the Participants: 1) Kshitija Jadhav
2) Vasundhara Rathod
3) Kaustubh Patil
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CONTENTS
CONTENTS...............................................................................................................................2

LIST OF ABBREVIATIONS....................................................................................................3

INDEX OF AUTHORITIES......................................................................................................4

[A] Case Laws............................................................................................................................4

[B] Statutes.................................................................................................................................4

STATEMENT OF FACTS........................................................................................................6

STATEMENT OF ISSUES........................................................................................................7

SUMMARY OF ARGUMENTS...............................................................................................8

ARGUMENTS ADVANCED...................................................................................................9

PRAYER..................................................................................................................................16

BIBLIOGRAPHY....................................................................................................................17

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LIST OF ABBREVIATIONS

A.I.R. All India Reporter

ACA Australian Constitution Act

DSI Democratic Society of Indiyana

HC High Court

LAB Legal Advisory Board

IC Indian Cases

r/w Read With

PIL Public Interest Litigation

S.C. Supreme Court

USA United State of America

PRC Permanent Resident Certificates

v. Versus

INDEX OF AUTHORITIES

[A] Case Laws

1. A. B. S. K. SANGH (RLY) v. UNION OF INDIA [AIR 1981 SC 298]

2. S. P. GUPTA AND ORS v. PRESIDENT OF INDIA AND ORS [AIR 1982 SC 149]

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3. M. S. JAYARAJ v. COMMISSIONER OF EXCISE, KERALA [AIR 2000 SC 3266]

4. KESAVANAND BHARTI v. STATE OF KERALA [AIR 1973 SC 1461]
5. D. C. WADHWA v. STATE OF BIHAR [ AIR 1987 SC 579]
6. SAMPAT PRAKASH v. STATE OF J&K [AIR 1970 SC 1118 (1121-22)]
7. STATE OF WEST BENGAL v. UNION OF INDIA [AIR 1963 SC 1241]
8. STATE OF JAMMU AND KASHMIR V. DR. SUSHEELA SAWHNEY [AIR 2003
J&K 83: 2003 (4) IND LD 217],
9. DEVI DAS V. PANNA LAL [AIR 1959 J&K 62]
10. PRAKASH V. MST. SHAHNI [AIR 1965 J&K 83: 1965 KASH LJ 85]

[B] Statutes

1. THE CONSTITUTION OF INDIA, 1950

2. THE CONSTITUTION OF JAMMU AND KASHMIR, 1956
3. THE CONSTITUTIONS (APPLICATION TO JAMMU AND KASHMIR) ORDER,
1954
4. THE CONSTITUTIONS (APPLICATION TO JAMMU AND KASHMIR) ORDER,
2019
5. THE JAMMU AND KASHMIR REORGANISATION ACT, 2019.
6. THE AUSTRALIAN CONSTITUTION ACT, 1900.
7. THE US CONSTITUTION ACT.

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indiyana has jurisdiction to hear the instant matter under
Art. 32 of the Constitution of Indiyana.

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

Art. 32 of the Constitution of Indiyana reads as:

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 clauses (1)
and (2), parliament may by law empowered 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.”

STATEMENT OF FACTS

1. On 26th Oct. 1947 by instrument of accession state of Bshmir was included into union
of Indiyana. Mohammad Ali Seena opposed said instrument of accession, so all
political leaders comes together and made “Shahajahanabad Agreement, 1952” which

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decide terms and conditions of instrument of Accession, same introduced in Article

370 of Indiyana Constitution.
2. By Article 370 “Temporary, Transitional and Special provisions” was made for state
of Bshmir by 1954th Presidential order.
3. On 14th May, 1954 Article 35 A was introduced for State of Bshmir and thereby rights
permanent residents was given to State of Bshmir.
4. On 5th Aug. 2019, Presidential Order issued and removed Aticle 370 and Article 35A
thereafter all of Indiyana Constitution are to applied to the State of Bshmir without
any Special Provision.
5. This would imply that state of Bshmir’s separate constitution stands inoperative,
including the privileges sanctioned by Article 35 A.
6. Republic Group Of People renowned NGO have filed Writ Petition in Supreme Court
of Indiyana Under Article 32 of the Indiyana Constitution and inherently
unconstitutional. The Petition has been Admitted the Hon’ble Supreme Court and
matter is now put for Final Hearing.

STATEMENT OF ISSUES

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1. Whether the Petitioner has a Locus Standi to file this petitioner not?

2. Whether the recommendation of the Governor of State of Bshmir amounts to the

violation of Art. 370 or not?

3. Whether Omission of Article 35A is constitutionally valid or not?

SUMMARY OF ARGUMENTS

ISSUE 1:- Whether, the Petitioner has a Locus Standi to file this petition or not?

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Yes, as there is violation of fundamental rights, the Petitioner has Locus Standi to file this
writ petition. Though any member of the public having sufficient interest can approach the
court for enforcing constitutional or legal rights of other persons and redressal of the common
grievance.

ISSUE 2:- Whether the recommendation of the Governor of State of Bshmir amounts to
the violation of Art. 370 or not?

Yes, the presidential order is tantamount to the president doing indirectly what he cannot do
directly that is amending Art. 370 through Art.367 because he has no power to amend Art.
370 directly. Hence the recommendation of the Governor of State of Bshmir amounts to the
violation of Art. 370.

ISSUE 3:- Whether Omission of Article 35A is constitutionally valid or not?

Article 35 A, inter alia, empowers Jammu and Kashmir State Legislature to confer special
rights and privileges on permanent residents in matters of employment under the state
government. Under the state laws only permanent residents of the State can be appointed to
post under the State Government and exclusion of non permanent residents does not violet
their fundamental rights to equality guaranteed under the Constitution.

ARGUMENTS ADVANCED

ISSUE 1:- Whether, the Petitioner has a Locus Standi to file this petition or not?

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Yes, as there is violation of fundamental rights, the Petitioner has Locus Standi to file this
writ petition. Though any member of the public having sufficient interest can approach the
court for enforcing constitutional or legal rights of other persons and redressal of the common
grievance.

1.1 Who can apply - Locus Standi?

The traditional rule is that the right to move the SC is only available to those whose
fundamental rights are infringed. The power vested in the SC can only be exercised for the
enforcement of fundamental rights. The writ under which remedy is asked u/a 32 must be
correlated to one of the fundamental rights sort to be enforced. The remedy must be sort
through appropriate proceedings.

The above traditional rule of Locus Standi that a petition u/a 32 can only be filed by a person
whose fundamental rights are infringed has now been considerably relaxed by the SC in its
recent rulings. The court now permits PIL’s or social interest litigations at the instance of
‘public spirited citizens’ for the enforcement of constitutional and other legal rights any
person or group of person who because of their poverty or socially or economically
disadvantage position are unable to approach the court for relief.

Over a period of time, the SC has been taking a liberals view of Locus Standi. Art. 32
confers a good deal of freedom on SC to evolve its own rules of Locus Standi. The court
realises that if a narrow view of Locus Standi is taken and if the categories of a person who
can challenge the governmental actions are confined within narrow limits, then the danger is
that many governmental actions may go unchallenged as there may be none entitled to
challenge such action.

Quoting the words of the Australia Law Reforms Commission his lordship observed the “the
liberalised standing rules has caused no significant increase in the number of actions
brought, arguing that parties will not litigate at considerable personal cost unless they have
the real interest in the matters”.

A. B. S. K. SANGH (RLY) v. UNION OF INDIA1

1
A. B. S. K. Sangh (Rly) V. Union Of India [Air 1981 Sc 298]

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“It was held that the Akhil Bhartiya Soshit Karmachari Sangh (railway), though an
unregistered association could maintain a writ petition u/a 32 for the redressal of the
common grievance. Access to justice through ‘class actions’, ‘PIL’ and
‘representative proceedings’ is the present constitutional jurisprudence.”

S. P. GUPTA AND ORS v. PRESIDENT OF INDIA AND ORS 2

“A seven member bench of SC has firmly established the rule regarding the PIL. The
court held that any member of public having “sufficient interest” can approach the
court for enforcing constitutional or legal rights of other persons and the redressal of
a common grievance.

Where a legal wrong or legal injury is caused to person or to a determinate class of

person by reason of infringement of any constitutional or legal right and such person
or determinate class of persons is by reason of poverty, helplessness of disability or
socially or economically disadvantaged position unable to approach the court for
relief, any member of the public can maintain an application for an appropriate
direction or order writ in the HC u/a 226 or in case of breach of any fundamental
right to this court u/a 32.”

M. S. JAYARAJ v. COMMISSIONER OF EXCISE, KERALA3

“In the present context, the SC takes a liberal view of Locus Standi to file a writ
petition u/a.32. The concept of Locus Standi has very much expanded and SC has
come to adopt a flexible view on the question of a person’s entitlement to file a writ
petition to challenge an executive order as ultra vires. This is supported by Jayaraj
where the SC proceeded to consider the question on its merit whether an order made
by the Excise Commissioner was legal or not without going into the question whether
the petitioner challenging the order had Locus Standi to do so.”

2
S. P. Gupta And Ors V. President Of India And Ors [Air 1982 Sc 149] (Judges Transfer Case)

3
M. S. Jayaraj V. Commissioner Of Excise, Kerala [Air 2000 Sc 3266]

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ISSUE 2:- Whether the recommendation of the Governor of State of Bshmir amounts to
the violation of Art. 370 or not?

Yes, the presidential order is tantamount to the president doing indirectly what he cannot do
directly that is amending Art. 370 through Art. 367 because he has no power to amend Art.

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370 directly. Hence the recommendation of the Governor of State of Bshmir amounts to the
violation of Art. 370.

Art. 370 in the Constitution of Indiyana 1950

370. Temporary provisions with respect to the State of Bshmir.

(1) Notwithstanding anything in this Constitution,

(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 Indiyana
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 For the purposes of this Art., 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 Maharajas Proclamation dated the fifth day of March, 1948;

(c) the provisions of Art. 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 proviso to sub clause (d) of that clause be given

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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 Art., 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.

The government’s action is, from a legal Standpoint, clever. But is it perhaps a bit too
clever? It appears so for four reasons.

First, the President does not have the power to modify Art. 370 itself. But that is precisely
what the Presidential order purports to do indirectly. Art. 370 is already applicable to Bshmir
under Art. 370(1) (c). Under Art. 370(1) (d) the President’s has the power to modify and
apply other provisions of the Constitution to Bshmir i.e. provisions other than Art. 370.

By modifying Art. 367 (as it applies to Bshmir) and requiring that ‘Constituent Assembly’ in
Art. 370(3) be read as the Bshmir Assembly, the President has attempted to indirectly amend
Art. 370. Therefore the Indiyana Constitution as it is applicable to Bshmir today now has two
provisions that say contradictory things. Art. 370(3) says that the Constituent Assembly of
Bshmir can recommend the abrogation of Art. 370. Art. 367(4) (d) says that Constituent
Assembly must be read to mean Bshmir Assembly. Which provision prevails? This is where
the government is likely to encounter problems.

The President has exceeded the confines of the power delegated to him under Art. 370(1) (d).
He cannot do so. This was settled in the Keshavananda Bharati case which established the
Basic Structure doctrine i.e. a constitutional functionary cannot use the powers given to him
under the Constitution to do to the Constitution that which the Constitution never intended
for him to do.

The law recognises acts of omission (in this case, not recommending the abrogation of Art.
370). That is to say that by dissolving itself without recommending abrogation, the
Constituent Assembly of Bshmir made clear its intention to not abrogate Art. 370.

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Second, Art. 370(1) (d) only empowers the President to modify existing provisions of the
Constitution when they are made applicable to Bshmir. The Presidential Notification
however adds a fresh provision to the Constitution in the form of Art. 367(4). The President’s
power to legislate provisions into the Constitution in this manner is suspect.

Third, the Presidential Order is also problematic because Bshmir is currently under
President’s Rule. The requirement of obtaining the concurrence of the Bshmir Assembly was
therefore dispensed with. Can a decision such as this one be taken by the President himself
relying on the imposition of President’s Rule in a State? Is that a breach of Indiyana’s
commitment to federalism? This is also up for debate.

Fourth, the Presidential Order may also run into trouble because (while the President may
have modified Art. 367(4) (d) as it is applicable to Bshmir) a similar amendment has not been
made either to Art. 367(4) (d) or Art. 370(3) of the Indiyana Constitution itself by Parliament.
The President’s power to modify the Indiyana Constitution under Art. 370(1) (d) is only
limited to Bshmir. The power to amend the Constitution vests exclusively with Parliament.
Currently therefore, the Constitution as it is applicable to Bshmir contains Art. 367(4)(d)
which requires ‘Constituent Assembly’ in Art. 370(3) to be read as the Bshmir Assembly but
this is only applicable to Bshmir.

KESAVANAND BHARTI v. STATE OF KERALA4

“Federalism was recognised as the basic structure of the constitution and there is
violation of federal structure of the constitution. The amending power of the
parliament is not unlimited and did not include the power to destroy or abrogate the
basic structure or framework of the constitution. At the most, one can argue that Art.
370 constitute an integral part of constitution and should be placed beyond the
amending power of the parliament.”

D. C. WADHWA v. STATE OF BIHAR 5

4
Kesavanand Bharti V. State Of Kerala [Air 1973 Sc 1461]

5
D. C. Wadhwa V. State Of Bihar [Air 1987 Sc 579]

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“It was brought to the notice of the SC that the governor of Bihar had promulgated
256 ordinances between 1967–1981 and this where kept alive for periods ranging
from 1 – 14 years. The SC criticised such promulgation of ordinances as an abuse of
the power and a fraud on the constitution. The court held that the function assigned
to the legislature have been usurped by the executive and amounts to subversion of
the constitution and democratic process. The Court held that the power to
promulgate an ordinance is essentially a power to be used to meet an extra ordinary
situation and it cannot be allowed to be perverted to serve political ends.”

SAMPAT PRAKASH v. STATE OF J&K6

“The most important provision contained in clause (3) of Art. 370 which lays down
that this Article shall cease to be operative or shall be operative only with such
exceptions and modifications and from such a date, as the President may specified by
public notification, provided that the recommendation of the constituent assembly of
the state referred to in a clause (2) shall be necessary before the President issues
such a notifications. These clause clearly envisaged that the Article will continue to
be operative and can cease to be operative only if, on the recommendation of the
constituent assembly of the state, the President makes a direction to that effect.”

STATE OF WEST BENGAL v. UNION OF INDIA7

“These case had attached the highest importance to “An agreement or compact
between states” as an essential characteristic of federalism. Since such as an
agreement was not there in Indiyana, it held that Indiyana was not a federal polity.
Subsequently, this ruling was overruled and federalism was recognized as the basic
structure of the Constitution in the Kesavanand Bharti case (1973) and reiterated in
the SR.Bommai judgment (1994).”

ISSUE 3:- Whether omission of article 35 A is constitutionally valid or not?

6
Sampat Prakash V. State Of J&K [Air 1970 Sc 1118 (1121-22)]

7
State Of West Bengal V. Union Of India [Air 1963 Sc 1241]

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1. Article 35A was not added to the Constitution by following the procedure prescribed
for amendment of the Constitution of India under Article 368. Article 370 does not
anywhere confer on the President legislative or executive powers so vast that he can
amend the Constitution or perform the function of Parliament. It has been brought
about by the executive organ when actually the right of amendment of the
Constitution lies with the legislative organ. Therefore, it is, allegedly, ultra vires the
basic structure of the Constitution since it violates the Constitutional procedures
established by law.
2. Besides carrying out many modifications and changes, this order 'added' a new
"Article 35A" to the Constitution of India. Addition or deletion of an Article
amounted to an amendment to the Constitution which could be done only by
Parliament as per procedure laid down in Article 368. But, Article 35A was never
presented before Parliament. This meant the President had bypassed Parliament in
this order to add Article 35A.
3. The PRC classification created by Article 35A suffers from the violation of Article
14, Equality before the Law. The non-resident Indian citizens cannot have the rights
and privileges, same as permanent residents of Jammu and Kashmir.
4. This also meant that the amending power of Parliament under Article 368 of the
Constitution itself was abridged in its application to Jammu and Kashmir, another
amendment, without any reference to Parliament. When the President of India does
not have legislative powers, he performed the function of Parliament.
5. It facilitates the violation of the right of women to ‘marry a man of their choice’ by
not giving the heirs any right to property, if the woman marries a man that is not a
permanent resident. Therefore, her children are not given Permanent Resident
Certificate and thereby considering them unfit for inheritance – not given any right to
such a woman's property even if she is a permanent resident.
6. It facilitates the free and unrestrained violation of fundamental rights of those workers
and settlers like Scheduled Caste and Scheduled Tribe people who have lived there
for generations. The Valmikis who were brought to the state during 1957 were given
Permanent Resident Certificates on the condition that they and their future
generations could stay in the state only if they continued to be safai-
karmacharis (scavengers). But even after six decades of service in the state, their

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children are doomed to be safai-karmacharis. They have been denied the right to quit
scavenging and choose any other profession.
7. The industrial sector & whole private sector suffers due to the property ownership
restrictions. Good doctors don't come to the state for the same reason.
8. Children of non-state subjects do not get admission to state colleges.
9. It ruins the status of West Pakistani refugees. Being citizens of India they are not
stateless persons, but being non-permanent residents of Jammu and Kashmir, they
cannot enjoy the basic rights and privileges as being enjoyed by permanent residents
of Jammu and Kashmir.
10. It gives a free hand to the state government and politicians to discriminate between
citizens of India, on an unfair basis and give preferential treatment to some by
trampling over others, since the non-residents of the state are debarred from buying
properties, getting a government job or voting in the local elections.

PRAYER

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In the light of the Issues Raised, Argument Advanced and Authorities Cited, the

Hon’ble Supreme Court may be pleased to:

1. Accept that Democratic Society of Indiyana has Locus Standi and allow the filing of
writ Petition u/a 32.
2. Grant the recommendation of the Governor of Bshmir is amounts to violation of
Art.370.
3. Declare that Omission of Article 35A is constitutionally valid.

AND/OR

Pass any other order, direction or relief that it deems fit in the interest of Justice, Equity

And Good Conscience.

Sd/-

(Counsel for the Petitioner)

BIBLIOGRAPHY

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1. M.P JAIN ,”INDIAN CONSTITUTIONAL LAW”, 7TH EDITION ,1406

2. J.N PANDEY, “INDIAN CONSTITUTIONAL LAW”, 49TH EDITION,

3. PROF. S.K. SHARMA “THE CONSTITUTION OF JAMMU AND KASHMIR”

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