5th Amity National Moot Court Competition

5th Amity National Moot Court Competition

20th -22nd March,2020

Before,
the Hon’ble Supreme Court of Indiana

Under Article 32 of the Constitution of Indiana

In the matter of:

Ms. Mehbooba Sheikh & Ms. Haseena Khatoon & Ors. Petitioners

Versus

Union of Indiana Respondents

Memorandum on behalf of the Respondent

Memorial on Behalf of Respondent

 5th Amity National Moot Court Competition

Issue 1: Whether the Presidential Orders backed by Jannu and Kahmir

(Reorganisation) Act violate the Basic Structure of the Constitution of Indiana,
including Part- III and Federal Constitutional Framework and are Unconstitutional?

It is humbly submitted before the Hon’ble Court of Justice that Presidential Order “The
Constitution (Application to Jannu and Kahmir) Order,2016 is valid as the President has acted in
conformity with the powers conferred to him by Art.370(3) of the Constitution of Indiana in
prevailing facts and circumstances and is not violative of the basic structure of the Constitution of
Indiana.

Article 370 is a temporary provision

 It is contented that the marginal note of Art.370 reads, ‘Temporary provisions with respect to
the State of Jannu And Kahmir.’ From the plain reading of the marginal note itself, makes it
clear that Art.370 was not intended to be a permanent feature of the Constitution by its
framers.
 Further, according to Black’s Law Dictionary1, the term ‘temporary’ means ‘existing for a
limited time.’ Additionally, as per Cambridge International Dictionary of English2 too, the
term ‘temporary’ means ‘not lasting or needed for very long.’
 Further, the intention of the Constitution makers can be inferred from the Constituent
Assembly Debates on October 17,19493 wherein Gopala Swami Ayyangar while replying to
the question raised by Hasrat Mohani said that:
“The discrimination is due to the special conditions of Kahmir. That particular state is not
yet ripe for this kind of integration. It is the hope of everybody here that in due course even
Jannu and Kahmir will become ripe for such sort of integration as has taken place in the
case of other States.”

1
Bryan A. Garner, Black’s Law Dictionary (7th ed.)
2
Cambridge International Dictionary of English
3
Constituent Assembly Debates, October 17,1949, speech by Gopala Swamy Ayyangar 288, available at
http://www.constitutionofindia.net/constitution_assemby_debates/volume/10/1949-10-17

Memorial on Behalf of Respondent

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 Further, in the case of Prem Nath Kaul v. State of Jammu & Kashmir4, it was held that article
370 was intended to make temporary provisions with respect to the State of Jammu &
Kashmir.
 Moreover, it is humbly submitted that even though the Constituent Assembly consisted of the
members of Jannu and Kahmir however, no objection was raised by them when it was intented
that Art.370 would be added as a temporary provision.
 Additionally, Art.370 of the Constitution of Indiana is contained in the Part XXI of the
Constitution entitled, ‘Temporary, Transitional and Special Provisions.’ It deals with the
special provisions in relation to certain states. The special provisions from Article 371A to
Art.371J contains specific provisions for certain states such as Maharashtra, Gujarat,
Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunachal
Pradesh, Goa and Karnataka. However, the entirety of Constitution of Indiana is applicable
to all of these states. On the other hand, in case of State of Jannu and Kahmir, only art. 1 and
art. 370 are applicable and all the other provisions of the Constitution were made applicable
to State of Jannu and Kahmir by the President of Indiana, with such exceptions and
modifications as the President may by order specify. In the light of the above contention it is
contented that the State of Jannu and Kahmir was given special status only because of its
prevailing conditions and was not intended to give a permanent status.
 It is therefore contended that Art.370 being temporary in nature any order regarding this does
not affect the basic structure of the Constitution.

Constitution of State of Jannu and Kahmir

 It is humbly submitted that the Constitution of Jannu and Kahmir under Section 3 clearly
stated that:
“The State of Jannu and Kahmir is and shall be an integral part of the Union of
Indiana.”5

 In addition to this, unlike, the Preamble of the Constitution of Indiana the Constitution of State
of Jannu and Kahmir does not include the word ‘Sovereign’, which implies that the State of

4
AIR 1959 SC 749
5
Constitution of Jammu and Kashmir, sec.3

Memorial on Behalf of Respondent

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Jannu and Kahmir did not intend to be a sovereign state and had accepted the sovereignty of
Indiana.
 Further, in the case of State Bank of India v. Santosh Gupta6, it was held that:

“The State of Jammu and Kashmir has no vestige of sovereignty outside the Constitution of
India and its own constitution, which is subordinate to the Constitution of India. It is
therefore wholly incorrect to describe it as being sovereign in the sense of its residents
constituting a separate and distinct class in themselves.”

 Therefore, it is humbly contended that the Constituent Assembly of State of Jannu and Kahmir
did not in any manner intended to deviate from the provisions of the Constitution of Indiana.

Art.370 empowers President of Indiana to pass the order ‘The Constitution (Application to
Jannu and Kahmir) Order,2016’

 It is humbly submitted that the order passed by the President of Indiana under Article 370 is
valid.
 In the case of State Bank of India v. Santosh Gupta7, Nariman J. stated that despite Article
370(3) reads “Constituent Assembly of the State,” the article will not cease to operate upon the
dissolution of the Constituent Assembly, which happened in 1957. Therefore, the logical
deduction is that despite the dissolution of the Constituent Assembly of Jannu and Kahmir, the
procedure under Article 370 can still be used to issue Presidential Orders.
 Further, Article 370(1) clause (d) gives power to the President of Indiana to make
modifications through Orders for the application of the other provisions of the Constitution in
the State. The word ‘modify’ may mean ‘amend’ and when Article 370(1) says that the
President may apply the provisions of the Constitution to the State of Jannu and Kahmir with
such modifications as he may by order specify, it means that he may amend the provisions of
the Constitution in its applications to the State of Jannu and Kahmir.

6
AIR 2017 SC 25
7
AIR 2017 SC 25

Memorial on Behalf of Respondent

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 Additionally, in the case of Sampat Prakash v. State of J&K8, the Court held that: in the
context of the Constitution we must give the widest effect to the meaning of the word
‘modification’ used in Article 370(1) and in that sense it includes an amendment.
In the present case the Constitution (Application to Jannu and Kahmir) Order,2016 is such a
modification made by the President of Indiana exercising his powers rightly under Art.370.

Presidential Order is not violative of Part-III of the Constitution of Indiana

 It is most respectfully submitted that ‘The Constitution (Application to Jannu and Kahmir)
Order,2016’ is not violative of the Part-III, since, no fundamental rights are absolute and are
subject to reasonable restrictions.
 Reasonable restrictions under the scope of Article 19(2) has been upheld to not be violative of
Fundamental Rights under variety of cases. In the case of Chintaman Rao v. State of Madhya
Pradesh it was held that:
‘The phrase “reasonable restriction” connotes that the limitation imposed on a person in
enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is
required in the interests of the public. The word “reasonable” implies intelligent care and
deliberation, that is, the choice of a course which reason deliberate.’
 And therefore, the situation in the State of Jannu and Kahmir was such that the restrictions
imposed as given in the factsheet9 could be justified in view of maintenance of the “security of
the State.”

Imposition of Section 144 of Cr.P.C

 Further, the imposition of Section 144 is valid for the maintenance of the security of the State
and for the Maintenance of Public Order and Tranquillity. The necessity of the orders under
Section 144, Cr.P.C are apparent from the background facts and circumstances as there can be
huge violence if the Government did not take these kinds of measures. Hence, the imposition
of Section 144 is valid taking into account the background of the State of Jannu and Kahmir.

8
AIR 1970 SC 1118
9
Moot Proposition, Para 23.

Memorial on Behalf of Respondent

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 Further, the power under Section 144, Cr.P.C. is a preventive power to preserve public order.
In Babulal Parate v. State of Maharashtra10, this court expressely clarified that this power
can be exercised even where there exists an apprehension of danger. And in the present case,
Sec. 144 is imposed on the ground of apprehension of danger of aggressive revolts.
 In addition to this, in the case Gulam Abbas v. State of U.P.11, it was held that an order passed
under Section 144, Cr.P.C is an executive order and reiterated the circumstances in which the
power can be exercised. The Court observed as under:

“The entire basis of action under Section 144 is provided by the urgency of the situation and
the power thereunder is intended to be availed of for preventing disorders, obstructions and
annoyances with a view to secure the public weal by maintaining public peace and
tranquility. Preservation of the public peace and tranquility is the primary function of the
Government and the aforesaid power is conferred on the executive magistracy enabling it to
perform that function effectively during emergent situations and as such it may become
necessary for the Executive Magistrate to override temporarily private rights and in a given
situation the power must extend to restraining individuals from doing acts perfectly lawful
in themselves, for it is obvious that when there is a conflict between the public interest and
private rights the former must prevail”

Hence, the Magistrate necessarily needed to override the private rights of the citizens of the state
and prominent leaders in such situation of urgency.

Rule of law

 Further, it is humbly submitted that the Presidential Order,2016 upholds the aspect of Rule of
law by eradicating inequality which have been prevailing since 1954, since the advent of 35A
in the Constitution of Indiana.
 Article 35A brings a class within class of Indianan citizen. As a result of implementation of
Article 35A, lakhs of Indianan citizens have been deprived of Justice and Equality of status

10
AIR 1961 SC 884
11
AIR 1981 SC 2198

Memorial on Behalf of Respondent

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and opportunity. It violates the Art.14 of the Constitution which guarantees equality. It is
therefore contended that the Presidential Order, 2016 guarantees equality to all.

Not violative of the Federal Constitutional Framework

 It is humbly submitted before the Hon’ble Court of Justice that, The Constitution (Application
to Jannu and Kahmir) Order,2016 is not violative of the Indiana Federal Constitutional
Framework. It is so because the federalism followed in Indiana is not true federalism rather
Indiana is quasi-federal. It has been made evident by different cases decided by this Hon’ble
court. In the case of State of West Bengal v. Union of India12 and State of Karnataka v. Union
of India13, it was held that the Constitution of India is not truly federal in character.
 Moreover, most respectfully it is submitted that federation exists only if the Union and units
are co-equal, however, B.R.Ambedkar said that the Indian Federation was a “Union” because
it was indissoluble and no state has the right to secede from it. The federation is a Union
because it is indestructible i.e. Strong centre to secure the nation.
 It is therefore contented that the present order of the President does not violate the Indiana
Federalism Constitutional Framework. Rather, it would enhance the federal relation between
State of Jannu and Kahmir and the Centre as Indiana enjoys with the other states.

12
[1964] 1 SCR 371
13
AIR 1978 SC 68

Memorial on Behalf of Respondent