TEAMCODE29-P

BEFORETHE HON’BLE SUPREME COURT OF KASHINDIA

Writ petition filed under article 32 of the Constitution of Kashindia

MEMORIAL FILED ON THE BEHALF OF THE PETITIONER

W.P.No.: /2019

NipunjGoyalShrivastava
&
RajtiwariSarvagyaSood ……… Petitioner

vs.

Union of Kashindia ..…….Respondent

Most respectfully submitted to the Hon’ble Chief Justice &

Other Companion Judges of the Supreme Court of Kashindia

COUNSELS APPEARING ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONERS Page i

 TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................................................................................ii
LIST OF ABBREVIATIONS...................................................................................................................................iii
INDEX OF AUTHORITIES......................................................................................................................................4
STATEMENTOF JURISDICTION.........................................................................................................................5
Statement of facts........................................................................................................................................................6
ISSUES FOR CONSIDERATION...........................................................................................................................7
SUMMARY OF ARGUMENTS................................................................................................................................8
ADVANCED ARGUMENTS...................................................................................................................................10
I) WHETHER ARTICLE 370 OF THE CONSTITUTION OF KASHINDIA A TEMPORARY
PROVISION WHICH HAS LAPSED WITH THE DISSOLUTION OF THE CONSTITUENT
ASSEMBLY OF JACOOB & KARTISHKIR OR CAN IT BE DECLARED INOPERATIVE BY A
MERE PUBLIC NOTIFICATION BY THE PRESIDENT IN ACCORDANCE WITH CLAUSE (3) OF
ARTICLE 370?.....................................................................................................................................................10
A. ARTICLE 370 IS A TEMPORARY PROVISION WHICH HAS LAPSED WITH THE
DISSOLUTION OF THE CONSTITUENT ASSEMBLY OF J&K..................................................................10

B. ARTICLE 370 CAN BE DECLARED TO BE INOPERATIVE BY A MERE PUBLIC

NOTIFICATION BY THE PRESIDENT IN ACCORDANCE WITH CLAUSE (3) OF ARTICLE 370........12

II) WHETHER THE PRESIDENTIAL ORDER OF 1954 BE DECLARED UNCONSTITUTIONAL

ON THE GROUND THAT IT WENT BEYOND THE JURISDICTION OF THE PRESIDENT?............14
III) WHETHER IN LIGHT OF THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE IS
ARTICLE 35A VIOLATIVE OF RIGHT TO EQUALITY UNDER THE KASHINDIAN
CONSTITUTION AND DOES IT CREATE ‘TWO DIFFERENT CLASSES OF CITIZENS?...................16
A. IT IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION..........................................................16

B. IT DISCRIMINATES NON-PERMANENT RESIDENTS AS WELL AS WOMEN AND PEOPLE

BELONGING TO SC AND ST COMMUNITY OF THE STATE...................................................................17

C. IT IS VIOLATIVE OF DOCTRINE OF CONSTITUTIONAL MORALITY.........................................18

IV) WHETHER THE STATE OF J & K HAS THE RIGHT TO UNILATERALLY SECEDE FROM
THE KASHINDIA IN ACCORDANCE WITH THE PRINCIPLES OF INTERNATIONAL LAW?.......20
A. INFRINGEMENT OF BASIC RIGHTS AND INSTITUTIONAL INJUSTICE TO THE PEOPLE......20

B. DEMOCRATIC PRINCIPLES AND FUNDAMENTAL RIGHTS OF PEOPLE OF J&K HAVE BEEN

VIOLATED........................................................................................................................................................22

PRAYER FOR RELIEF...........................................................................................................................................24

MEMORIAL ON BEHALF OF PETITIONERS Page ii

 LIST OF ABBREVIATIONS
S. No ABBREVIATION EXPANSION

1. ¶ Paragraph

2. AIR All India Report

3. Anr Another
4. Art. Article
5. Ed Edition

6. Ltd Limited
7. UNC United Nations Charter
8. Ors. Others
9. Pvt. Private
10. RBI Reserve Bank of India
11. SC Supreme Court
12. SCC Supreme Court Cases
13. SCR Supreme Court Reports
14. U.O. I Union of India
15. U.P. Uttar Pradesh
16. v. Versus
17. Vol. Volume
18. AFSPA Armed Force Special Powers Act
19. OHCHR Office of United Nations High Commissioner
for Human Rights.
20. ST Scheduled Tribe.

INDEX OF AUTHORITIES

CASES

Abdul Qayoom Khan Vs.State of J&K and Ors AIR 2015 J&K 96,.......................................10
Jagir Singh v. Ranbir Singh and Anr., (1979) 1 SCC 560.......................................................13
Kesavananda Bharati v State of Kerela ,(1973) 4 SCC 225....................................................12
Laxmi khandsari v. State of Uttar Pradesh AIR 1981 SC 873.................................................17
Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 SCC 600..............................................16
Manoj Narula v Union of India, (2014) 9 SCC 1.....................................................................18
Raghunathrao Ganpatrao Etc vs Union Of India, 1993 AIR 1267.........................................12
S Seshachalam v. Bar Council of TN, 2015 (1) CTC 227 (SC)...............................................16
State of Kerala and another v. N.M. Thomas and others, 1976 AIR 490................................19
Subramanian Swamy v. CBI, (2014) 8 SCC 682.....................................................................16
Western India Theatres vs Municipal Corporation Puna, AIR 1959 SC 586..........................10

MEMORIAL ON BEHALF OF PETITIONERS Page iii

STATUTES

Article 2(7) of the charter of United Nations...........................................................................20

OTHER AUTHORITIES

Economic and Political WeeklyVol. 45, No. 46 (NOVEMBER 13-19, 2010), pp. 59-66 (8
pages)....................................................................................................................................20
FIDH –and Association of Parents of Disappeared Persons (APDP) and Jammu Kashmir
Coalition of Civil Society (JKCCS) Key human rights issues of concern in Indian-
Administered Jammu & Kashmir March 201.......................................................................22
JKCCS, Annual Human Rights Review 2018”, p.8.................................................................22
Office of the United Nations High Commissioner for Human Rights Report on the Situation of
Human Rights in Kashmir....................................................................................................22
Research paper by University daBarcelona on “Secession in International law.....................22
Since July 2016, Kashmir schools & colleges have been shut on 60% of working days”, India
Spend, 30 May 2017.............................................................................................................23

RULES

Allen Buchanan, "Secession", Stanford Encyclopaedia of Philosophy, 2007.........................20

STATEMENTOF JURISDICTION

THE JURISDICTION OF THIS HON’BLE SUPREME COURT HAS BEEN INVOKED

UNDER ARTICLE32 OF THE CONSTITUTIONOF KASHINDIA, WHICH READS
HEREIN UNDER AS:

“ARTICLE 32- Power of Supreme Courts to issue certain writs

(1) The Right to move the Supreme Court by appropriate proceeding 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)
MEMORIAL ON BEHALF OF PETITIONERS Page iv
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

MEMORIAL ON BEHALF OF PETITIONERS Page v

 Statement of facts

1.Kashindia got independence from the Zamindari Empire in 1947. With the independence, it
got divided along religious lines into two separate countries: Kashindia and Nigamistan.
Kashindia has a quasi-federal Constitution and the Supreme Court of Kashindia is the final
interpreter of its Constitution.

2.The state of Jacoob and Kartishkir (J&K) is one of the 29 states of Kashindia. The
constitutional status of J&K has been heavily contested by Nigamistan since the independence
of Kashindia and it has seen rising militancy and internal insurgency both from internal as well
as external organizations in the last few decades.

3.Prior to 1947, J&K was a princely state under the Zamindari Empire ruled by Maharaja Jazz
Singh. Post the independence of Kashindia, J&K initially decided to remain independent but
after an invasion by a certain tribal group and army men from Nigamistan, the ruler of J&K
signed the Instrument of Accession (IOA) and acceded to Kashindia. The schedule appended to
IOA gave powers to the Kashindian Parliament to legislate for J&K only on matters of defense,
communication and external affairs.

4.By Article 370 of Kashindia, the terms of IOA were reflected in its Constitution. This article
gives a great degree of autonomy to J&K. Consequently, J&K adopted its own Constitution in
1956 and is the only state of Kashindia to have it. In 1954, Article 35A was added to its
Constitution through a Presidential notification called Constitution (Application to the State of
J&K) Order, 1954 by exercising powers under Article 370(1)(d).

5.Article 35A enables the legislature of J&K to define the permanent residents of J&K. Only
these permanent residents have the right in J&K to contest and vote in the election of
legislature, acquire property, obtain job with the government and study in government aided
colleges.

6.Unhappy with state of affairs in J&K, Nipunj Goyal Shrivastava along with a non-
governmental organization called RajTiwari Sarvagya Sood (RSS), has challenged the
constitutional validity of Article 370 and Article 35A in the Supreme Court of Kashindia.

MEMORIAL ON BEHALF OF PETITIONERS Page vi

 ISSUES FOR CONSIDERATION

THE PETITIONERS VERY RESPECTFULLY PUT FORTH TO THE HON’BLE

SUPREME COURT, THE FOLLOWING QUERIES:

ISSUE 1

WHETHER THE ARTCLE 370 OF THE CONSTITUTION OF

KASH
INDIA A TEMPORARY PROVISION WHICH HAS LAPSED WITH THE
DISSOLUTION OF THE CONSTITUENT ASSEMBLY OF JACOOB &
KARTISHKIR OR CAN IT BE DECLARED INOPERATIVE BY A MERE PUBLIC
NOTIFICATION BY THE PRESIDENT IN ACCORDANCE WITH CLAUSE (3) OF
ARTICLE 370?

ISSUE 2

WHETHER THE PRESIDENTIAL ORDER OF 1954 BE DECLARED

UNCONSTITUTIONAL ON THE GROUND THAT IT WENT BEYOND THE
JURISDICTION OF THE PRESIDENT?

ISSUE 3

WHETHER ARTICLE 35 IS VIOLATIVE OF RIGHT TO EQUALITY UNDER

THE KASHINDIAN CONSTITUTION?

ISSUE4

WHETHER THE STATE HAS RIGHT TO UNILATERALLY SECEDE FROM

KASHINDIAN IN ACCORDANCE WITH PRINCIPLES OF INTERNATIONAL
LAW?

SUMMARY OF ARGUMENTS

MEMORIAL ON BEHALF OF PETITIONERS Page vii

1. WHETHER ARTICLE 370 OF THE CONSTITUTION OF KASHINDIA A
TEMPORARY PROVISION WHICH HAS LAPSED WITH THE DISSOLUTION OF
THE CONSTITUENT ASSEMBLY OF JACOOB & KARTISHKIR OR CAN IT BE
DECLARED INOPERATIVE BY A MERE PUBLIC NOTIFICATION BY THE
PRESIDENT IN ACCORDANCE WITH CLAUSE (3) OF ARTICLE 370?

Article 370 of the constitution of Kashindia is titled as “370. Temporary provisions with respect
to the State of Jammu and Kashmir” and the marginal note to Article 370 clearly spells out the
intent of the constituent assembly of Kashindia to formulate this Article. The Constituent
Assembly of Jacoob and Kartishkir as envisaged under the proviso to Clause (3) is only one
which is ‘for the purpose of framing the Constitution of the State’ and therefore Article 370 of
the Constitution could only have been intended to remain effective until the Constitution of the
State was framed thereafter, this article must be held to have become ineffective. Article 370
can be removed by the President through a notification under Article 370(3) with the
concurrence of the Constituent Assembly of Jacoob and Kartishkir and now since the
constituent assembly no longer exists, therefore no such concurrence is needed.

2. WHETHER THE PRESIDENTIAL ORDER OF 1954 BE DECLARED

UNCONSTITUTIONAL ON THE GROUND THAT IT WENT BEYOND THE
JURISDICTION OF THE PRESIDENT?

It is submitted that the presidential order of 1954 is unconstitutional as it went beyond the
jurisdiction of the president. The president by virtue of his powers under 370(1)(d) can only
make “modifications” to any provision of the Kashindian constitution when making it
applicable to the state of Jacoob and Kartishkir, but it does not empower the president to
introduce a new article to the constitution of Kashindia. Article 35A was added to the
constitution of Kashindia by the presidential order of 1954 and the power to add any article to
the constitution rests in Parliament as per procedures laid out in Article 368 to the Constitution
of Kashindia. President therefore bypassed the amending procedure as laid out in the
Constitution and usurped the functions of Parliament and this renders the presidential order of
1954 unconstitutional.

3. WHETHER IN LIGHT OF THE PRESENT FACTS AND CIRCUMSTANCES OF

THE CASE IS ARTICLE 35A VIOLATIVE OF RIGHT TO EQUALITY UNDER THE
KASHINDIAN CONSTITUTION AND DOES IT CREATE ‘TWO DIFFERENT
CLASSES OF CITIZENS’?

MEMORIAL ON BEHALF OF PETITIONERS Page viii

Article 35A empowers the assembly to define the permanent residents of the state of J&K. In
addition to this it is contended that article 35A creates two different classes of citizens, thereby
giving special privileges to the permanent residents of J&K, while depriving other citizens of
the same. Further, it is worth mentioning that women are not given equal rights and privileges
as the men are entitled to. This article also discriminates the SC and ST community people of
the state. It also violates the doctrine of constitutional morality which ensures for the fulfilment
of the ultimate aim of the constitution. Article 35A is therefore leads to the creation of different
classes of constitution, which is against the right to equality enshrined in the constitution of
Kashindia.

4. WHETHER THE STATE OF J & K HAS THE RIGHT TO UNILATERALLY

SECEDE FROM THE KASHINDIA IN ACCORDANCE WITH THE PRINCIPLES OF
INTERNATIONAL LAW?

In accordance with the applicable laws it is submitted that the J&K can secede from Kashindia.
It is for the reason that basic rights of people have violated and people have been subjected to
institutional injustice. Further there is violation of fundamental rights of the people of J&K.
After institutionalization of AFSPA and POTA, causalities against the people of J&K have
increased. Several human rights have been violated and basic rights such as freedom of speech
and expression and right to education have been infringed. Further the people are denied the
right to self-determination and denying to the fundamental rights is clearly states that people are
discriminated and mistreated. Further under the conditions of right to secession it is stated that
right to self-determination must be denied and people should be subjected to mistreatment
which clearly is the case in the state of J&K. Hence it is submitted that J&K can unilaterally
secede from Kashindia.

MEMORIAL ON BEHALF OF PETITIONERS Page ix

 ADVANCED ARGUMENTS
I) WHETHER ARTICLE 370 OF THE CONSTITUTION OF KASHINDIA A
TEMPORARY PROVISION WHICH HAS LAPSED WITH THE DISSOLUTION
OF THE CONSTITUENT ASSEMBLY OF JACOOB & KARTISHKIR OR CAN
IT BE DECLARED INOPERATIVE BY A MERE PUBLIC NOTIFICATION BY
THE PRESIDENT IN ACCORDANCE WITH CLAUSE (3) OF ARTICLE 370?

1. Article 370 was incorporated in the Constitution of Kashindia 1 to reflect on the terms of
the Instrument of Accession which was signed by Maharaja Jazz Singh confirming the
Accession of the State of Jacoob and Kartishkir 2 to Kashindia. Article 370 grants the
state of J&K a great degree of autonomy to conduct and regulate its internal affairs.3
2. The constitutional validity of Article 370 was challenged by Nipunj Goyal Shrivastava
along with a nongovernmental organisation called Rajtiwari Sarvagya Sood 4 on the
grounds that 1) Article 370 is a temporary provision which has lapsed with the
dissolution of the Constituent Assembly of J&K; 2) It can be declared to be inoperative
by a mere public notification by the President in accordance with clause (3) of Article
370.

A. ARTICLE 370 IS A TEMPORARY PROVISION WHICH HAS LAPSED WITH

THE DISSOLUTION OF THE CONSTITUENT ASSEMBLY OF J&K.

3. Article 370 of the constitution of Kashindia is titled as “ Temporary provisions with

respect to the State of J&K”.5 In the case of Western India Theatres vs Municipal
Corporation Puna6 it was held that though the marginal note cannot affect the
construction of the language used in the body of the Article, if the content is uncertain
and ambiguous as in the case of Article 370, the marginal note may be referred to. The
marginal note of Article 370 clearly shows that is a temporary provision.
4. It is humbly submitted before the honorable court that Article 370 never intended to
outlive the duration and life of a constituent assembly which was framed to draft the
constitution for the State of J&K. The above is borne by the fact and the specific
wording of the proviso to Article 370(3) which says that the president may by a
notification declare Article 370 to be inoperative but it can be done only with the

1
Herein referred to as “Constitution”.
2
Herein referred to as “J&K”.
3
¶5, Factsheet
4
Hereinafter referred to as “the petitioner”.
5
Abdul Qayoom Khan Vs. State of J&K and Ors, AIR 2015 J& K 96.
6
Western India Theatres vs Municipal Corporation Puna, AIR 1959 SC 586.
MEMORIAL ON BEHALF OF PETITIONERS Page x
 “recommendation of the Constituent Assembly of the State referred to in clause (2)”.
Article 370 (2) is “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 before the Constituent Assembly for the purpose of framing
Constitution of the State is convened, it shall be placed before such Assembly for such
decision as it may take thereon”.7 It clear that the Constituent Assembly of the State
mentioned in the proviso to clause (3) is one which is for the purpose of the ‘framing the
Constitution of the State’. Therefore, once such a Constitution has been framed, a
constituent assembly within the meaning of proviso to clause (3) cannot be further
instituted for any other purpose.
5. Article 370 is a temporary provision can also be substantiated by the fact that it is titled
as containing "temporary provisions with respect to the state of J&K" as contra-
distinguished from "special provisions" in Articles 371-371J with regard to some other
states of Kashindia. The Constitution-makers obviously made a conscious distinction
between "temporary" and "special" and they were careful not to call Article 370 a
special provision.
6. Sri N. Gopalaswami Ayyangar when he moved in the Constituent Assembly Clause
306A of the Bill, which now corresponds with Article 370 of the Constitution it was
stated by him that conditions in Kashmir were special and required special treatment.
Some of these special circumstances, to which reference was made by him were:-- (1)
that there had been a war going on within the limits of J&K. (2) that part of the State
was still in the hands of rebels and enemies; (3) that the will of the people expressed
through the Instrument of a Constituent Assembly would determine the Constitution of
the State as well as the sphere of Union jurisdiction over the State. 8 In this back ground,
it is most respectfully submitted that Article 370 of the Constitution could only have
been intended to remain effective until the Constitution of the State of J&K was framed
and the will of the people of Jammu and Kashmir had been expressed and, thereafter,
this article must be held to have become ineffective.

B. ARTICLE 370 CAN BE DECLARED TO BE INOPERATIVE BY A MERE PUBLIC

NOTIFICATION BY THE PRESIDENT IN ACCORDANCE WITH CLAUSE (3)
OF ARTICLE 370

7. Article 370(3) of the Constitution of Kashindia reads as:

7
The Constitution of Kashindia.
8
Constituent Assembly Debate, vol. X, 17 Oct 1949.
MEMORIAL ON BEHALF OF PETITIONERS Page xi
 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.".
8. It is most respectfully submitted before the honorable court that proviso to Clause (3) of
Article 370 requiring the recommendation of the Constituent Assembly of J&K before
the issue of the presidential notification has become redundant and unnecessary because,
on January 25, 1957, the Constituent Assembly of J&K has been dissolved. Since no
Constituent Assembly exists now, restriction mentioned in Clause (3) cannot operate.
9. The Supreme Court in the case of Kesavananda Bharati v State of Kerala9 ruled that
any part of the Constitution can be amended either by variation, addition or repeal
except the very essence of it, which was described as basic features of the Constitution.
Therefore, Article 370 can be repealed even after the dissolution of constituent assembly
if it is not a basic feature of constitution of India.
10. In the case of Raghunathrao Ganpatrao Etc. vs Union of India10 the supreme court
rejected the argument that Articles 291 and 362, form a part of basic feature. The
Petitioners in Ganpatrao were rulers of some of the erstwhile princely states, who had
relinquished their powers and joined the Indian Dominion by signing Instruments of
Accession much like in the case of Kashmir’s accession. One of the guarantees extended
to them at the time of acceding to the Union was the annual payment of privy purses and
certain other privileges. These promises were crystallized in the Constitution as well, in
the form of Articles 291 and 362. Nevertheless, the said provisions were abrogated by a
constitutional amendment. The supreme court upheld this constitutional amendment.
Thus, the incorporation of Article 291 and 362 follow a trajectory similar to that of
Article 370 and therefore Article 370 is also not a part of basic feature of the
Constitution and can be repealed the president by exercising his powers under Article
370(3).
11. . It is a truism in law that what cannot be done directly may not be attained indirectly
either11. The evergreening of the provision of Article 370, contrary to the explicit intent
of the original Constitution and that too without bringing about any amendment to the
provision itself, is a subterfuge of sanctity of constitutional structure.

9
Kesavananda Bharati v State of Kerala ,(1973) 4 SCC 225.
10
Raghunathrao Ganpatrao Etc. vs Union Of India, 1993 AIR 1267.
11
Jagir Singh v. Ranbir Singh and Anr., (1979) 1 SCC 560
MEMORIAL ON BEHALF OF PETITIONERS Page xii
 II) WHETHER THE PRESIDENTIAL ORDER OF 1954 BE DECLARED
UNCONSTITUTIONAL ON THE GROUND THAT IT WENT BEYOND THE
JURISDICTION OF THE PRESIDENT?

12. Article 35A was introduced to the Constitution of Kashindia through a Presidential
Order called the Constitution (Application to the State of J&K) Order, 1954 12 by
exercising the powers conferred by clause (1) of the Article 370 of the Constitution, and
with the concurrence of the Government of the State of J&K 13. It is submitted before the
honorable court that the Presidential Order of 1954 went beyond the jurisdiction of the
president and is unconstitutional for which the respondents have following contentions:
13. The Presidential Order of 1954 was issued by exercising powers conferred by Article
370(1)(d) which reads as follows: “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:
12
Herein referred to as “Presidential Order of 1954”.
13
¶6, Factsheet
MEMORIAL ON BEHALF OF PETITIONERS Page xiii
 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.”
14. It is humbly submitted before the honorable court that in Article 370 of the Constitution,
nowhere it has been mentioned that the President of India has the power to insert a new
Article in the Constitution. Rather Article 370 of Indian Constitution only says that the
President can make any “‘exceptions and modifications” and that to consistent with the
government of the State of J&K. Presidential order for adding a new article 35A is not
just about simple modifications or exceptions of some provisions of the constitution but
amounts to amending the constitution by overriding the power of the Parliament and is
hence unconstitutional.
15. It is most respectfully submitted that Article 35A was not added to the Constitution by
following the procedure prescribed for amendment of the Constitution of Kashindia
under Article 368. Article 368 states “Power of the Parliament to amend the Constitution
and procedure, therefore”14 which means that it is the parliament that has the power to
amend the constitution. The Presidential Order of 1954 went beyond jurisdiction of the
president and powers conferred to him under Article 370(1)(d). 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. Article 35A 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.
16. It is respectfully submitted that an order for adding a ‘new article’ in the constitution
can’t be defended or taken refuge under Art 370 (1)(d) since sub- clause (1)d of Art 370
allows only modification of some existing constitutional provision as it is clear from the
language of the article which reads as:
“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”15
An act of adding a new article by Presidential order like it has been done in case of Art
35A does not fall in the class of modifying an existing provision. Therefore, the

14
The Constitution of Kashindia.
15
Ibid.
MEMORIAL ON BEHALF OF PETITIONERS Page xiv
 Presidential Order of 1954 was ‘ultra vires’ as it went beyond the jurisdiction of the
president so it shall be declared unconstitutional.

III)WHETHER IN LIGHT OF THE PRESENT FACTS AND CIRCUMSTANCES

OF THE CASE IS ARTICLE 35A VIOLATIVE OF RIGHT TO EQUALITY
UNDER THE KASHINDIAN CONSTITUTION AND DOES IT CREATE ‘TWO
DIFFERENT CLASSES OF CITIZENS?

17. The counsel would like to humbly submit before the honorable court that Article 35A is
violative of the right to equality and creates different classes of citizens. The reasons
being (1) it is violative of article 14 of the constitution. (2) it discriminates non-
permanent as well as women and people belonging to SC and ST community of the
state. (3) it is violative of doctrine of constitutional morality16.

A. IT IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION

18. In the case of Subramanian Swamy v. CBI17 the court observed that Article 14 declares
equality of rights to all the persons within the territory of India and enjoins equal
protection to all persons in enjoyment of their rights and liberties without any
discrimination or biasness or favoritism and a pledge of protection of equal laws, that is,
laws that operate alike on all the persons.
19. Article 14 does not allow class legislation; but it does not forbid reasonable
classification of persons, objects and transactions by the legislature for the purpose of
16
The constitution of J&K.
17
Subramanian Swamy v. CBI, (2014) 8 SCC 682.
MEMORIAL ON BEHALF OF PETITIONERS Page xv
 achieving specific ends. To find whether the given classification is reasonable it needs to
fulfil the following two tests which were laid down in the case of Laxmi Khandsari v.
State of Uttar Pradesh18.
20. Firstly, the classification must not be arbitrary, artificial or evasive in nature. The
classification must be based on the intelligible differentia, which means that distinction,
which is real and substantial in nature, which distinguishes group of things compiled
together in the class from others left out of it. Secondly the differentia adopted as the
basis of the classification must also have a reasonable or rational nexus with the object
and the purpose which is sought to be achieved by the statute So, in the case of S
Seshachalam v. Bar Council of TN19 it was held by the court that when there is no
reasonable basis for classification, such classification may be declared discriminatory.
21. So, article 14 involves above two facets. Now it is contended that the citizens of India
not being the permanent resident of the state of J&K enjoy their fundamental rights in
any part of the country but cannot enjoy in the state of J&K. The same is happening with
the refugees from west Nigamistan who all had settled down during the partition time.
They also being the citizen of India do enjoy the fundamental rights in any part of the
territory of India but are deprived of basic rights and privileges within the state of J&K.
Examining the above two facets we find that classification created by Article 35A is also
based on the Intelligible Differentia. But the differentia on which it is based is artificial
and it does not have any rational nexus or relationship with the basic object of the
Equality enshrined in the constitution.
22. Thus, the classification that has been created by the Article 35A does not fulfil the test
of reasonable classification as it was being discussed in the case of Laxmi Khandsari v.
State of Uttar Pradesh20as the differentia which was the basis of the classification did
not have rational nexus or relationship with the basic object of the constitution. Equality.
Thus, Article35A of the Kashindian Constitution is violative of Article14.

B. IT DISCRIMINATES NON-PERMANENT RESIDENTS AS WELL AS WOMEN

AND PEOPLE BELONGING TO SC AND ST COMMUNITY OF THE STATE.

23. Article 14 gives a fundamental right to equality before law but under the Act males have
been preferred because after marriage, females from outside will not lose the right of
being permanent residents. A female from outside the State shall became a permanent
resident on marrying a male permanent resident of the State but a daughter who is a born
18
Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 SCC 600.
19
S Seshachalam v. Bar Council of TN, 2015 (1) CTC 227 (SC).
20
Laxmi khandsari v. state of Uttar Pradesh AIR 1981 SC 873.
MEMORIAL ON BEHALF OF PETITIONERS Page xvi
 State subject will lose the right on marrying a non-permanent resident of the state.
Unreasonable classification between males and females is against the spirit of Article
14 of the Constitution. Further The discrimination against any citizen on the ground of
sex is against the article 15(1) of the constitution.
24. Article 16 clause (1) states that there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State. The Act is
violating this provision of the Constitution too as a female marrying a non-State subject
shall lose employment and shall have no future right of employment in the State.
25. Section 10 of the State Constitution of J&K lays down that “the permanent resident have
all the rights guaranteed to them under the constitution of India” 21, and if there is some
discrimination inter-se between the citizens of India who are permanent residents of the
state, then in the event of a case being made out for discrimination, that provision can be
struck down as violative of equality clause. The immunity which has been provided is
limited. The immunity is that law is not to be declared as ultravires because different
treatment is being given to citizens of India who are not the state subjects or permanent
residents and the citizens of India who are permanent residents of the state. Thus, the
different treatment towards non-permanent citizens is violative of the rights of these
people.
26. Article 49(1) of J&K constitution reads as follows: “There shall be reserved in the
Legislative Assembly for the Scheduled Castes in the State a number of seats which
shall bear, as nearly as may be, the same proportion to the total number of seats in the
Assembly as the population of the Scheduled Castes bears to the population of the State.
But clause (2) of the same article states that provisions of clause (1) shall cease to be
operative after five years of the commence of this article. Thus, the very clause for the
reservation of SCs and STs has become inoperative and hence they are denied the right
of representation in the legislative assemblies. Hence this provision is discriminatory
towards the people belonging to SC and ST communities.”22

C. IT IS VIOLATIVE OF DOCTRINE OF CONSTITUTIONAL MORALITY

27. The term ‘Constitutional Morality’ means adherence to the core principles of the
constitutional democracy. The scope of the definition of Constitutional Morality is not
limited only to following the constitutional provisions literally but vast enough to ensure
the ultimate aim of the Constitution, a socio-juridical scenario providing an opportunity

21
Constitution of J&K.
22
Ibid.
MEMORIAL ON BEHALF OF PETITIONERS Page xvii
 to unfold the full personhood of every citizen, for whom and by whom the Constitution
exists.23
28. The Court in State of Kerala and another v. N.M. Thomas and others24 observed that :
“The Indian Constitution is a great social document, almost revolutionary in its aim of
transforming a medieval, hierarchical society into a modern, egalitarian democracy
and its provisions can be comprehended only by a spacious, social science approach,
not by pedantic, traditional legalism.” Hence, the doctrine of Constitutional Morality
has at its core the fundamental principle that the provisions of the Constitution need to
be construed in accordance with the aim to unfold justice to every single person in order
to fulfil the ultimate aim of the constitution.
29. The administrative officers, who retire after working in J&K for decades to ensure
smooth administration of the state, cannot even buy a house in the state. Nor can their
children study or work in any govt. institutions of the state. It is also evident that the
J&K borders two hostile nations and also due to consistent terrorist activities in the state,
the largest number of soldiers attained martyrdom in J&K. However, it is ironical that
those who lay their lives to protect the land are not given even a small piece of land,
because they are outsiders.
30. It is therefore submitted before the Hon’ble Court that article 35A which is violative of
rights of people ranging from non-permanent citizens to women and SC and ST
community people of the same state thereby creating different classes of citizens, shall
be done away with in order to do justice with the people who have been facing adverse
effects due to the existence of such article.

23
Manoj Narula v Union of India, (2014) 9 SCC 1.
24
State of Kerala and another v. N.M. Thomas and others, 1976 AIR 490.
MEMORIAL ON BEHALF OF PETITIONERS Page xviii
 IV)WHETHER THE STATE OF J & K HAS THE RIGHT TO UNILATERALLY
SECEDE FROM THE KASHINDIA IN ACCORDANCE WITH THE
PRINCIPLES OF INTERNATIONAL LAW?

31. Secession (derived from the Latin term secessio) is the withdrawal of a group from a

larger entity, especially a political entity but also from any organization, union or
military alliance. Threats of secession can be a strategy for achieving more limited
goals.25 It is, therefore, a process, which commences once a group proclaims the act of
secession (e.g. declaration of independence). It could involve a violent or peaceful
process but these do not change the nature of the outcome, which is the creation of a
new state or entity independent from the group or territory it seceded from.
32. Article 2(7) of the charter of United Nations states that “ Nothing contained in this
present charter shall authorize the United Nations to intervene in the matters which are
essentially within the domestic jurisdiction of any state or shall require the members to
submit such matters to settlement under the present charter; but this principle shall not
prejudice the application of enforcement measures under Chapter VII”26. Wherein the
chapter VII deals with actions with respect to the threat to the peace, breaches of peace
and acts of aggression. Therefore, it can be derived that in case of breach of peace or
aggressive activities, United Nations can intervene.
33. It is submitted that state of J&K has the right to unilaterally secede from the Kashindia
on the following grounds(1) Special status provided to the state of J&K has been
invoked due to infringement of basic rights of the people leading to institutional
injustice.(2) Democratic principles and fundamental rights of people of J&K have been
violated.

A. INFRINGEMENT OF BASIC RIGHTS AND INSTITUTIONAL INJUSTICE TO

THE PEOPLE.

34. In order to justify the right of institutional injustice two preconditions have to be
justified. The first precondition for a justified right of secession is that the notion of
"institutionalized injustice27" holds that discrimination and coercion are built into the
institutional structures that govern the daily lives of a particular group of citizens.
Therefore, people of state are neither protected against certain acts that harm them, nor
enabled to access the goods they have rights to. Similar is the case of Kashmir where the
25
Allen Buchanan, "Secession", Stanford Encyclopedia of Philosophy, 2007.
26
Article 2(7) of the charter of United Nations.
27
Economic and Political Weekly Vol. 45, No. 46 (NOVEMBER 13-19, 2010), pp. 59-66 (8 pages).

MEMORIAL ON BEHALF OF PETITIONERS Page xix

 system has been made such that people are deprived of their basic rights and have been
subjected to repeated discrimination such as human rights issues, encountered deaths,
rapes, and disappearances.
35. The second precondition for a justified right of secession is that institutionalized
injustice should be irrevocable that is, we should be able to assess that the state is not
likely to reverse its policies, compensate the victims for harm done, and institutionalize
just procedures and institutions before we proceed to justify secession. But in case of
J&K, we find the cases of arbitrary arrests, impunity for human rights violations and
lack of access to justice are key human rights challenges in the state of Jammu and
Kashmir. Special laws in force in the state, such as the Armed Forces (Jammu and
Kashmir) Special Powers Act, 1990 (AFSPA) and the Jammu and Kashmir Public
Safety Act, 1978 (PSA) , have created structures that obstruct the normal course of law,
impede accountability and jeopardize the right to remedy for victims of human rights
violations.
36. Further section 7 of AFSPA, 1990 prohibits the prosecution of security forces personnel
unless the Government of India grants a prior permission or “sanction” to prosecute.
This gives security forces virtual immunity against prosecution for any human rights
violation. In the nearly 28 years that the law has been in force in Jammu and Kashmir,
there has not been a single prosecution of armed forces personnel granted by the central
government.
37. In 2005, the supreme court appointed committee on AFSPA suggested that the law had
become a symbol of oppression, an object of hate and an instrument of discrimination
and high-handedness. Several laws have created to a climate of impunity and deprives
people of remedies Thus, there have been severe violation and infringement of the rights
of the people of J&K.

B. DEMOCRATIC PRINCIPLES AND FUNDAMENTAL RIGHTS OF PEOPLE OF

J&K HAVE BEEN VIOLATED.

38. Taking into account the conditions for the secession28 we find that no conditions
applicable so as to practice unilateral secession has been officially provided in the
international law, taking reference from the general practice prevalent across the globe,
derived from various case laws we can infer two conditions pre-requisite for unilateral
secession.(a) First, that the state must be colony under colonial rule or must be ruled by
some foreign entities(b) Second is that the people of the state aren’t getting the have the
28
Research paper by University de Barcelona on “Secession in International law”.
MEMORIAL ON BEHALF OF PETITIONERS Page xx
 right to freely determine their political status and freely pursue their economic, cultural
and social development within an existing nation state (parent state).(c) Third, there has
been a discrimination or maltreatment of some kind. It has been argued by the
international courts that above that, de legelata, only a particular type of discrimination
sustained and systematic human rights violation in extremis will enliven a customary
law right to UNC secessionist self-determination. In order to unilaterally secede from
apparent state, either of the three conditions must be fulfilled.
39. To check the unilateral secession of J&K from the Kashindia:
(a)The state of J&K isn’t a colony29 as it is not controlled by a country apart from it as it
has its own political autonomy. (b) Right to self- determination to the people of J&K has
been denied for decades as although on documents, Kashindia claims that people have
been given the right to self-determination but acts of Kashindia by which they have been
repressed for years by Kashindian occupying forces speak otherwise.(c) There has been
sufficient evidence of human rights violation cases in the state of J&K; reportedly, 160
civilians were killed in 2018, 71 were allegedly killed by Indian security forces, 43 were
killed by armed group members or unidentified gunmen and 29 were killed by shelling
and firing by Pakistani troops30.
Thus, it is submitted that the right to self-determination has been violated of the
residents of J&K31 along with severe human rights violation mentioned above.32
40. Further to address the violation of minority rights it is contended Armed Force Special
Powers Act of 1990 and the Prevention of Terrorism Act,2002 have contributed to the
detention without trial of an estimated 8000 to 20,000 Kashmiris. The presence of mass
graves & enforced disappearances is proof that enough of Kashindia’s complicity in
committing crimes against humanity and infringement of the rights of the minorities.
The two-decades of physical, psychological and sexual abuse to the people of J&K by
heavy-handed tactics of Indian security forces accompanying lack of legal redress is
“perhaps the most compelling just cause for Kashmir’s secession.
41. The Kashmir region experienced frequent communications blockades and unrest as the
state government suspended mobile and internet services on multiple occasions.33 The
authorities justified the complete bar on mobile internet facilities that affected nearly 7
million people in Kashmir for between 5 to 7 months. As a State party to the

29
The Constitution of J&K, 1956.
30
JKCCS, Annual Human Rights Review 2018”, p.8.
31
FIDH –and Association of Parents of Disappeared Persons (APDP) and Jammu Kashmir Coalition of Civil
Society (JKCCS) Key human rights issues of concern in Indian-Administered Jammu & Kashmir March 2019
32
Office of the United Nations High Commissioner for Human Rights Report on the Situation of Human Rights in
Kashmir.
33
Amnesty International, “Communications Blackout in Kashmir Undermines Human Rights”, 22 July 2016.
JKCCS Human Rights Review 2016, pp. 22-23.
MEMORIAL ON BEHALF OF PETITIONERS Page xxi
 International Covenant on Civil and Political Rights, India is obliged to protect the right
to freedom of expression and opinion.
42. Widespread protests, long periods of curfew and frequent strikes had a cumulative
impact on students and their right to education. It is claimed that schools and colleges
were closed for nearly 60 per cent of the working days during a session. 34 Confidential
information received by OHCHR indicates an estimated 130 school days were lost for
approximately 1.4 million children.
43. It is evident that various fundamental rights including right to freedom of expression,
right to education as well as other basic rights have been frequently violated in the state
of J&K. further preconditions to the secession have also been fulfilled by J&K Thus, in
the light of above facts the counsel pleads that State of J&K has right to unilaterally
secede from the Kashindia.

PRAYER FOR RELIEF

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN
AND AUTHORITIES CITED, THIS COURT MAY BE PLEASED TO:

I. HOLD THAT ARTICLE 370 IS TEMPORARY PROVISION AND IT CAN BE DECLARED

INOPERATIVE BY A MERE PUBLIC NOTIFICATION BY THE PRESIDENT IN ACCORDANCE
WITH CLAUSE (3) OF ARTICLE 370.

II. HOLD THAT THE PRESEDENTIAL ORDER OF 1954 IS BEYOND THE JURISDICTION OF THE
PRESIDENT AND SHOULD THEREFORE BE HELD UNCONSTITUTIONAL.

III. HOLD THAT THE ARTICLE 35A IS VIOLATIVE OF THE RIGHT TO EQUALITY UNDER THE
CONSTITUTION OF KASHINDIA AND SHOULD THEREFORE BE HELD
UNCONSTOITUTIONAL.

IV. HOLD THAT THE STATE OF J&K HAS THE RIGHT TO UNILATERALLY SECEDE FROM THE
KASHINDIA.

34
Since July 2016, Kashmir schools & colleges have been shut on 60% of working days”, India Spend, 30 May
2017
MEMORIAL ON BEHALF OF PETITIONERS Page xxii
AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO GRANT IN THE INTERESTS
OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

C OUNSELS FOR THE RESPONDENT

MEMORIAL ON BEHALF OF PETITIONERS Page xxiii