R-08

3rd MM NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE

SUPREME COURT OF KOSHINDA

WRIT PETITION (_______) NO. ____ OF 2019

ORIGINAL JURISDICTION

UNDER ARTICLE 32 AND ARTICLE 137 OF THE CONSTITUTION OF

KOSHINDA

In the matter of Article 370 and Article 35(A)

of the Constitution of Koshinda

CITIZEN RIGHTS (2014) ………………………………….…………........ PETITIONER 1

PROTAGONISTS OF NOZANGABAD REFUGEES ACTION

COMMITTEE CELL, (2015) ………………………………….................... PETITIONER 2

KARISHMA RAJ MEHTA & ANR. (2019) ………………………............ PETITIONER 3

VERSUS

UNION OF KOSHINDA & ORS. …………………………………………. RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

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 TABLE OF CONTENTS

Table of Contents………………………………………………………………………..ii

List of Abbreviations……….…………………………………………………………..iii

Index of Authorities…………………………………………………………………….iv

Statement of Jurisdiction……………………………………………………………….vi

Synopsis of Facts……………………………………………………………………….vii

Statement of Issues………………………………………………………………………ix

Summary of Arguments………………………………………………………………….x

Argument Advanced……………………………………………………………………..xi

Prayer……………………………………………………………………………………xxiii

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 LIST OF ABBREVIATIONS

¶ Para

Art. Article

P. Page No.

SC Supreme Court

U/A Under Article

Govt. Government

NGO Non-Governmental Organization

NRACC Nozangabad Refugees Action Committee Cell

Adv. Advocate

NCW National Commission for Women

Dr. Doctor

PRC Permanent Resident certificate

wrt With Respect To

UT Union Territory

Adv Advocate

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 INDEX OF AUTHORITIES

CASES

1. Keshawananda Bharti v. State of Kerala AIR 1973 SC 1461

2. Minerva Mills v. Union of India AIR 1980 SC 1789
3. State of Uttar Pradesh v. Raj Narain 1975 AIR 865
4. Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694
5. State of U.P. v. Manbodhanlal, A.I.R. 1957 S.C.
6. T.G. Gaokar v. R.N. Shukla, A.I.R. 1968 S.C. 1050
7. Rajalakshmiah v. State of Mysore, A.I.R. 1967 S.C. 993.
8. M.N Muniraju v. H.L. Jayaramu
9. Ashok Kumar & Ors. V. State State of J & K and Ors., 16 April 2016
10. T Venkata Reddy v. State of Andra Pradesh, (1985) 3 SCC 198
11. M Nagaraj and Ors. V. Union of India and Ors., 19 October 2006
12. S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC(3)
13. Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and Ors. 1958 AIR 538
14. Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66
15. Smt. Saroj Rani v. Sudharshan Kumar Chadda, AIR 1984 1562
16. State of J & K v. Dr. Susheela Swahney and Anr. AIR 2003 JK 83

BOOKS

1. J.N. Pandey, The Constitutional Law of India, 50th ed. 2013, Central Law Agency
2. Vol1 Dr. Ashok Kumar Jain, 4th ed. 2016,
3. Vol 2 Dr. Ashok Kumar Jain, 3rd ed. 2017,
4. Batuk Lal, Law of Evidence, 42nd ed. 2018, Central Law Agency

LEGAL DATABASE

1. SCC ONLINE
2. LEXIS NEXIS
3. AIR DIGEST
4. INDIA KANOON

LEGISLATIONS

1. The Constitution of India, 1950

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 2. The Indian Evidence Act, 1872
3. The Constitution of Jammu and Kashmir 1956
4. The Constitution (Application to the State of J & K) Order, 1954

AGREEMENTS AND TREATIES

1. The Instrument of Accession of Kashmir

2. The Delhi Agreement, 1952
3. United Nation High Commission for Refugees

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Koshinda has jurisdiction in this matter under

Mandamus writ of Article 32 which provide Remedies for enforcement of the 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 cl (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

Article 137 Review of judgments or orders by the Supreme Court Subject to the provisions of
any law made by Parliament or any rules made under Article 145, the Supreme Court shall
have power to review any judgment pronounced or order made by it.

The Petitioner further request the Hon’ble Supreme Court to club Petition no. 1 and Petition
no. 3

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 SYNOPSIS OF FACTS

Background:

1. State of K & L was a princely state under the British dominance and the people of the state
were known to be state subjects and not the British colonial subjects. The political
movement in the state led to the inception of “hereditary state subjects” as the political
identity. Homas (community) then approached Maharaja Harjinder Singh fearing the
change in governmental services control which led to the origin of Art. 35A dating back
to 1927 and in 1932 a separate notification by Maharaja defined the state subjects and
granted them certain rights which were not available to the non-state subjects. On 26th
October 1947, Maharaja relinquished the control over defense, external affairs and
communication to the Govt. of Koshinda. This accession was further formalized u/a 370
and the concurrent Constitutional Order of 1950. Later in year 1952 Dongal Agreement
was adopted under which the President of Koshinda issued the constitution (application to
the State of K & L) order 1954 and simultaneously the Art. 35A was inserted in the
Koshindian Constitution. The Presidential Order of 1954 provides the framework of
division of powers between the State of K & L and Union Govt.

About Koshinda:

2. Koshinda is a federal country, it adopted federalism to actualize and uphold the values of
national unity, cultural diversity, democracy, regional autonomy and rapid socio-
economic transformation through collective efforts. The Supreme Court of Koshinda is the
final interpreter of the Constitution of Koshinda and is considered as custodian of basic
civil rights and liberties of its citizens as under established in the Constitution of Koshinda.

About The State of K & L:

3. The State of K & L is one of the 29 states with multitudinous historical background and
has been an unresolved issue from the very beginning. It is facing higher militancy and
internal insurgency at the desire of variable internal and external banned organization. The
State of K & L has been conferred with a greater degree of state autonomy and special
powers to conduct the internal affairs. These provisions are enshrined u/a 370 which acts
like a bridge between Koshindian Constitution and Constitution of the State of K & L. the

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 permanent residents of the State of K&L are defined to be those who are who were already
state subjects by 1954 or had lived there for at least 10 years. The permanent residents are
given special rights and privileges aimed at preserving the character, culture and
demography of the state.

Presently:

4. In 2014 an NGO called Citizen Rights filed petitions challenging Art. 35A in SC of
Koshinda and argued against special status for the State of K & L. the petitioners contended
that the State became “an integral part of Koshinda” after the accession. Also according to
them the Presidential order of 1954 went against the Art. 368 (i). They further said that the
President introduced “a new Article of Permanent Nature”.
5. The Proponent of NRACC filed a writ petition in 2015 pleading the fundamental rights of
the refugees who crossed into the state after 1947 and had lived there for 40 years without
being recognized as permanent residents yet forming 7-8 % of the state’s population, as a
result they could not get their names on the electoral poles or be elected to panchayats.
6. Adv. Karismha Raj Mehta, former member of NCW and Dr. Santosh Kashyap filed a
petition. The advocate described herself “A Langoshian Woman by Ancestry” for which
she provided ‘anecdotal’ evidence, as she had married a non-state subject was not allowed
to purchase property in a State of K & L. In reference to a 2003 judgment given by the K
& L High Court stating that any law defining permanent residents had not enacted by the
State Legislature. In the present time of women empowerment Art. 370 and Art. 35A
discriminates between men and women
7. The petitioner further contended the validity of the Constitutional orders passed by the
President restraining the Powers of the Parliament to make laws in concern with State of
K & L and then permitting provisions for permanent residential. As a result Art. 35A was
inserted through the “Constitution (Application to K&L) Order 1954”, which were passed
in accordance with the powers given to the President u/a 370.
8. The petition also points to Art. 368 (i) and concludes that it was beyond the “Presidents
jurisdiction” to pass the order of 1964.

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 STATEMENT OF ISSUES

Issue I.
Whether the petition filed against Union of Koshinda is maintainable?

Issue II.
Whether the Presidential Orders, 1954 were ultra vires to constitution , further Article
35A is violative of Preamble of the Constitution, and creates “two classes of citizen” by
violating the right to equality under Article 14 and Article 21.

Issue III.
The Nozangabad Refugees, Karishma Raj and Anr. (after her marriage to a non-state
subject) should get their permanent residential status and state subject privileges in the
State of K & L?

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 SUMMARY OF ARGUMENTS

Issue I.
Whether the petition filed against Union of Koshinda is maintainable?
It is humbly submitted before the Hon’ble Supreme Court that present petitions are not
maintainable against Union of Koshinda since the basic structure is not violated because of art
35A, and so it does not violate article 14 of the Constitution of Koshinda, furthermore the plight
of Nozangabad Refugees were recognised by the hon’ble court earlier, but the matter was left
in the hands of Union Government and State Government.

Issue II.
Whether the Presidential Orders, 1954 was ultra vires to Constitution, further Article
35A is violative of Preamble of the Constitution, and creates “two classes of citizen” by
violating the right to equality under Article 14.
It is humbly submitted before the Hon’ble Supreme Court that the Presidential Order procedure
was duly followed while the introduction of Art 35A in the Constitution, thus it is not ultra vire
to the provisions of Art 123, further it is not violative of Preamble of the Constitution as the
provisions of Art 35A is made to ensure the protection of Cultural Heritage of the State of K
& L, furthermore it does not violate the right to equality under article 14 because it is not an
absolute right.

Issue III.
The Nozangabad Refugees, Karishma Raj and Anr. (after her marriage to a non-state
subject) should get their permanent residential status and state subject privileges in the
State of K & L?
It is humbly submitted before the Hon’ble Supreme Court that the Nozangabad Refugees,
Karishma Raj Mehta and Anr are not eligible for permanent resident status as due to the
provisions enshrined in Constitution of State of K & L, Delhi agreement. Further the Evidence
provided by the Petitioner no. 3 is anecdotal or hearsay in nature, which is inadmissible in the
Court, also the facts provided by her is not relevant under Koshindian Evidence Act.

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 ARGUMENTS ADVANCED

I. WHETHER THE PETITION FILED AGAINST UNION OF KOSHINDA IS

MAINTAINABLE?

The present petition no. 1 and 3 are not maintainable under writ of Mandamus under art 32 and
Petition no. 2 is not maintainable under u/a 137 since (I.i) The basic structure of constitution is
not disrupted, therefore the PIL is not maintainable (I.ii) There is no violation of art. 14 as it is
not an absolute right (iii) The Nozangabad Refugees fate lies in the hands of State Govt. of
State of K & L and of Union Government of Koshinda, as due to the clauses of Dongal
agreement, 1952 thus petition u/a 137 is not maintainable.

(I.i) The basic structure of constitution is not disrupted, therefore the PIL is not
maintainable;
Public Interest Litigation is a highly effective weapon in the armoury of law for reaching social
justice to the common man.1 But as the time progressed, many petitions were filed to
misappropriate the PIL for corporate gain, political advantage or personal interest.2 In PIL
misuse comes in different forms, such as publicity, private interest, political rivalry or other
oblique motives.3 The test of acceptable PIL is that the Court has to be satisfied about (a) all
credentials of the applicant (b) the prima facie correctness or nature of the information given
by further that such information should not be wild and reckless allegations. In the present case
the Petitioner alleges that there is violation of Preamble of the Constitution which defines the
objectives, and these objectives contain the basic structure of the Constitution.4 The
enumerated essentials5 are not violated, as the art 35A and art 370 strengthens the federalism
of Koshinda which is a major part of the basic structure of the Union of Koshinda. Furthermore,
equality is not an absolute right, the equality in Koshinda allows classification but not class
legislation. In the present case the State of K & L are provided with a greater degree of
autonomy, due to the very conditions of accession and following agreements. The Union of

1
Shinsy P S, Abuse of Public Interest Litigation - A Major Threat on Judicial Process, LEGAL SERVICE INDIA 03/10/2019;
http://www.legalserviceindia.com/article/l469-Public-Interest-Litigation.html
2
Shinsy P S, Abuse of Public Interest Litigation - A Major Threat on Judicial Process, LEGAL SERVICE INDIA 03/10/2019;
http://www.legalserviceindia.com/article/l469-Public-Interest-Litigation.html
3
Shinsy P S, Abuse of Public Interest Litigation - A Major Threat on Judicial Process, LEGAL SERVICE INDIA 03/10/2019;
http://www.legalserviceindia.com/article/l469-Public-Interest-Litigation.html
4
Comments, The Constitution (One Hundered and First Amendement) Act, 2016 (India)
5
Keshawananda Bharti v. State of Kerala AIR 1973 SC 1461

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Koshinda, by the constitutional framers6 have been defined as a federal country and unitary
country i.e which secures both the regional autonomy and national unity.7 Furthermore, a PIL
filed against art 370 of the Constitution was refused to be entertained by the Supreme Court,
as the issues were already a part of the pending pleas.8 In another PIL challenging the
imposition of President’s rule in a State, the Supreme Court questioned the petitioner advocate
about his ‘bonafide’ and ‘locus’ while asking how he was affected by central rule in State and
refused to entertain his PIL.9

(I.ii) There is no violation of art. 14 as it is not an absolute right, thus writ of Mandamus
by Petitioner is not maintainable;
Writs are filed by institutions or individual for benefit in their own cases, Mandamus lies
against authorities whose duty is to perform certain acts and they have failed to do so. 10 In the
present case the petition is in reference to permanent resident status provided to the state subject
of State K & L which is not violate of art 14, as the right to equality is not an absolute right, as
it allows classification but not class legislation. Due to this, there is no question of creation of
two classes of citizens. Further the classification of residents of State of K & L is based on the
preservation of character, culture and demography of State of K & L.11 In the present petition,
Lawyer Karishma Raj Mehta and Dr. Santosh Kashyap filed the petition on the grounds that
she is unable to purchase property, because she had married a non-state state subject,12 and this
is because of the discriminatory provisions of permanent resident status. In a judgement of
2002, the stand on this part was cleared by the Judgement of the State High Court, that the
daughter of a permanent resident of the state will not lose her Status of permanent resident after
marrying a non-state subject.13 Thus, the petition is not maintainable as the merits of the case
is already decided by the Hon’ble Court, and acted upon. Furthermore, the Petitions should not

6
Aniruddha Vithal Babar, Dr. B R Amedkar’s Contribution to Federalism Enshrined in the Constitution of India
Vol. 7, ISSN 2319-6769, 43 (2017)
7
Page no. 1, line 2, Proposition
8
Press Trust of India, Supreme Court Refuses to Entertain Fresh Plea Against Article 370, R. Bharat,
(26/11/2018, 16:24 IST), https://www.republicworld.com/india-news/general-news/supreme-court-refuses-to-
entertain-fresh-plea-against-article-370.html
9
Restoration of Rivers in UP;Supreme Court Refuses to entertain PIL of Government official (21/06/2018 09:52
PM) https://indianexpress.com/article/india/restoration-of-rivers-in-up-supreme-court-refuses-to-entertain-pil-
of-government-official-5227659/
10
Pallavi Ghorpade, Analysis of Writ of Mandamus, LEGAL SERVICE INDIA
http://www.legalservicesindia.com/article/592/Analysis-Of-Writ-Of-Mandamus.html
11
Para 7, line 3, Proposition
12
Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694; State of U.P. v. Manbodhanlal, A.I.R. 1957
S.C.
13
T.G. Gaokar v. R.N. Shukla, A.I.R. 1968 S.C. 1050; Rajalakshmiah v. State of Mysore, A.I.R. 1967 S.C. 993.

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be clubbed together as the facts of the case are not the same, The petition no. 1 filed under the
scope of Public Interest Litigation, whereas the petitioner no. 3 focuses on her personal interest,
and the alleged violation of her personal interest, provided further the contention of Petitioner
no. 1 is to declare that the Presidential Order, 1954 was ultra vires to the Constitution, which
is different from the contention of Petitioner no.3, which is to declare the Art 35A as violative
of article 14, and to restore her rights as of the Permanent resident. In both the cases, the cause
of action is different, thus they are not eligible for clubbing together. In M.N Muniraju v. H.L
Jayaramu,14 the prayer of clubbing the suit of the respondents was dismissed by the trial court
on the ground that the suits were not on the same stage and untenable on the account of facts.

(I.iii) The Nozangabad Refugees fate lies in the hands of State Govt. of State of K & L
and of Union Government of Koshinda, as due to the conditions of accession thus petition
u/a 137 is not maintainable.
The current petition by the petitioner is filed under art 137 of the Constitution of Koshinda,
which provides the provision of review petition, a review petition may lie in court (a) discovery
of new important matters of evidence (b) mistake or error on the face of record (c) any other
sufficient reason.15 A judgment of the final court of the land is final. A review of such a
judgment is an exceptional phenomenon, permitted only where a grave and glaring error or
other well-established ground is made out.16 In the present case the plight of NRCC was
recognized by the Supreme Court, but the matter was left in the hands of Union Government
of Koshinda and Government of State of K & L,17 in the present petition, no new important
matter of evidence is discovered, nor can it be said that there exist any sufficient reason behind
the presentation of this review petition, as the contention of the present petition is same as that
of previous which demands “permanent resident rights” for Nozangabad Refugees,
furthermore as the provisions regarding the rights provided to state subject is empowered by
the art 35A and art 370 of the constitution. The Dongal agreement, 1952 further formalising
the relationship between state and union enumerate in its clause 218 that it was agreed between
the two Governments that in accordance with Article 5 of the Koshindian Constitution, persons

14
M.N Muniraju v. H.L. Jayaramu
15
Subhash C Kashyap, Article 137- Review of Judgements or order by the Supreme Court, LAWYER
UPDATE (Nov 2016) https://www.lawyersupdate.co.in/constitution-of-india/article-137-review-of-judgments-
or-orders-by-the-supreme-court/
16
Subhash C Kashyap, Article 137- Review of Judgements or order by the Supreme Court, LAWYER
UPDATE (Nov 2016) https://www.lawyersupdate.co.in/constitution-of-india/article-137-review-of-judgments-
or-orders-by-the-supreme-court/
17
Line no. 121, Proposition
18
Line no. 64 , Proposition

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who have their domicile in State of K & L shall be regarded as citizens of Koshinda, but the
State legislature was given the power to make laws for conferring special rights and privileges
on the 'state subjects' in view of the 'State Subject' Notifications of 1927 and 1932: the State
legislature was also empowered to make laws for the 'State Subjects' who had gone to
Nozangabad on account of the communal disturbances of 1947, in the event of their return to
State of K & L, thus after the Dongal agreement, 1952 the power to make laws for conferring
special rights on the state subject is with the state legislature.

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 II. WHETHER THE PRESIDENTIAL ORDERS, 1954 WERE ULTRA VIRES TO
CONSTITUTION, FURTHER ARTICLE 35A IS VIOLATIVE OF PREAMBLE
OF THE CONSTITUTION, AND CREATES “TWO CLASSES OF CITIZEN”
BY VIOLATING THE RIGHT TO EQUALITY UNDER ARTICLE 14 AND
ARTICLE 21.

The Presidential Order of 1954 were not ultra vires to amendment power of Parliament
provided under art 368(i) of the Constitution (II.i) The President has been given legislative
powers under art 123 and for the matter relating to State of K & L under art 370. (II.ii) It does
not violate Preamble of the Constitution, by violating right to equality under art 14 (II.iii) It
does not violate Art 21.

(II.i) The article 370 through which the Presidential order, 1954 was passed provides that
(1)(i)(b) Parliament to make laws for the said State shall be limited to (a) matters which are
specified in Union List and the Concurrent List, which in consultation with the State Govt. and
as declared by the President correspond to matters specified in instrument of accession of
accession of the State to Dominion of Koshinda as the matters wrt which the Dominion
Legislature may make laws for that state, and (b) such other order in the said list, with the
concurrence of the Govt. of State, the President may by order specify.19 Further in Art 370(1)(d)
states that “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”.20 Thus,
this clarifies the position of the President, as the President have been empowered under Art
370(1)(d) to make such exceptions and modifications to apply certain provisions of
Constitution. The Presidential Order, 1954 is passed within the ambit of power given art 370
of the Constitution of Koshinda, as it followed the due process as it was with the concurrence
of the Govt of State of K & L, further the Presidential Order of 1954, provided the framework
for the division of powers between the State of K & L and the Union Government of
Koshinda21. The Presidential order, 1954 further acted on the principle of federalism and
provided greater state autonomy to the State of K & L. In a judgement of State High Court, it
was held that although Art 370 is titled as “Temporary Provision” and included on Para XXI

19
INDIA CONST. art 370 ,cl 1(b)(i), art. 370, cl. 1(b)(ii)
20
INDIA CONST. art 370, cl 1(d)
21
Line no. 37, Proposition

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titled ‘temporary, transitional and Special Provision” it has assumed a place of performance in
the Constitution22 . Furthermore, under article 123 of the Constitution of Koshinda the
President is vested with the Legislative power, as it reads that the President at any time during
the absence of Session of Parliament if is satisfied that circumstance exist which render it
necessary for him to take immediate action, may promulgate such Ordinances as the
circumstances require23, it is further a requisite condition that such ordinance shall be laid
before both the houses of Parliament and it will cease to Operate at the expiration of 6 weeks
from the reassembly of Parliament or, a resolution is passed by both the Houses disapproving
it. An ordinance promulgated under Art 123 is a law having same force and effect as an Act of
Parliament, it cannot be treated as an executive action or administrative decision24 The
Ordinance making power is exercised by the President on his own ‘satisfaction’ and the court
cannot enquire into the reasons for the subjective satisfaction of the President or into the
sufficiency of those reasons25 An Ordinance has to be converted in to legislation within 42 days
of commencement of the Parliament session, or else it lapse. In the present petition as the
Presidential Order, 1954 is still in power and has not ceased, it is well understood that, it has
been passed by both the Houses of Parliament and thus has become a legislature.

(II.ii) It does not violate Preamble of the Constitution, by violating right to equality under
art 14.

The objectives specified in the Preamble contain the basic structure of our Constitution26. The
basic structure doctrine has also been explained in the many judgements as systematic
principles underlying and connecting provisions of the Constitution, these principles give
coherence and durability to the Constitution. These principles are part of Constitutional law
even if not expressly stated.27 In landmark judgement of Keshwananda Bharti, Chief Justice
Sikri enumerated the essentials of the basic structure of the Constitution which are (i)
Supremacy of the Constitution, (ii) Republican and democratic forms of the Government, (iii)
Secular character of the Constitution, (iv) Separation of Powers between Legislature, the
Executive and, the Judiciary (v) Federal Character of the Constitution, this was further

22
Ashok Kumar & Ors. V. State State of J & K and Ors., 16 April 2016
23
INDIA CONST art, 123, cl. 1
24
J. N. Pandey, The Constitutional Law of India, 468, (50th ed. 2013).
25
T Venkata Reddy v. State of Andra Pradesh, (1985) 3 SCC 198
26
INDIA CONST, preamble comments
27
M Nagaraj and Ors. V. Union of India and Ors., 19 October 2006

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confirmed in the Indira Gandhi case28, Minerva Mills29 case, etc. In the present petition, the
contention is that Presidential Order, 1954 violates the basic structure of the Constitution, in
contrary to which, the Presidential Order, 1954 is strengthening the basic structure of the
Constitution by providing proper framework of division of powers between State of K & L and
Union of Koshinda. Union of Koshinda recognizes itself as a Federal nation, the term federal
means a government in which the sovereign authority of political power is divided between the
various units viz. Centre, States etc30. Although the Constitution of Koshinda also enshrines
the provisions of a Unitary Government, Dr. Ambedkar one of the principal architects of the
Constitution considered the Constitution to be both “unitary and federal as according to the
requirements of time and circumstances”31.In S.R Bommai vs. Union of India it is noted that
commonly invoked model of federalism is the United States, by which it is clear that it is
federation of States, these state are independent and sovereign in their territories and their
territories cannot be altered by the federal govt. In Koshinda, the Parliament has the power to
alter their boundaries and their names, also to unite and divide the States32, thus the Federalism
of Koshinda can be called asymmetric as the Koshinda has different level of autonomies
decided for different categories of States, such as UT, States, Previously Princely States etc.
The circumstances of State of K & L i.e. the higher degree of State autonomy is due to the
provisions of article 370 of the Constitution and further the Dongal Agreement signed between
the parties. Which was an important requirement due to the conditions of the Instrument of
Accession between the then Maharaja of State of K & L and Union Government of Koshinda
which only ceded matters related to Defence, External Affairs, Communications and Ancillary.
The agreement between the State of K & L and Union of Koshinda, clarifies that sovereignty
in all those matters which are not specified in Instrument of Accession shall reside with the
State, also that the State can have its own flag, which will not be rival of Flag of Koshinda33.
Thus, strengthening the basic structure in terms of federalism. Furthermore, the right to equality
provided under art14 is not an absolute right as it allows classification but not class legislation.
The varying needs of different class of people requires separate treatments, and identical
treatment to unequal circumstances would amount to inequality. The test of reasonable
classification requires (i) intelligible differentia and (ii) relational relation with the object

28
Indira Nehru Gandhi v. Raj Narayan; AIR 1975 SC 2299
29
Minerva Mills vs Union of India AIR 1980 SC 1789
30
1 Dr. Ashok K. Jain, Constitutional Law of India, 32 (4th ed. 2016)
31
1, Dr. Ashok K. Jain, Constitutional Law of India, 38 (4th ed. 2016)
32
S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC(3)
33
DELHI AGREEMENT, 1952 cl. 4

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sought to be achieved34. In a Judgement it was made clear that the classification can be founded
on the basis of geography, according to objects or occupation or the like. In In the present
petition, the Presidential Order, 1954 is made to preserve and protect the very character, culture
and demography of the State of K & L, thus the classification is on the basis of demographically
and culturally different people, who due to their circumstances need privileges, and the object
of this privilege forms a nexus with their protection and preservation. In Dalmia case, it was
held that A law may be constitutional even though it relates to a single individual if on account
of some special circumstances or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by itself.35 This also does not violate the article 5 of
the Constitution of Koshinda, as the Dongal agreement, 1952 clearly states that in accordance
with the art 5 of the Koshindan Constitution, persons who have their domicile in State of K &
L shall be regarded as citizens of Koshinda. Thus, there is no duality of citizenship.

(II.iii) It does not violate Art 21.

The Art. 21 provides the fundamental right to life, and it read as No person shall be deprived
of his life or personal liberty except according to procedure established by law. The ‘right to
marry’ is an essential element of right to privacy but is not absolute. Marriage is a sacred union,
legally permissible, of the two healthy bodies of opposite sexes.36 In the present petition, the
right to marriage is no where violated, as State does not restrict any state subject from marrying
outside the State, with a non-state subject. In Harvinder Kaur v. Harmander Singh37 and Saroj
Rani v Sudarshan Kumar Chadha38 the court on question on constitutional validity of
Restitution of Conjugal Rights observed that there was no state coercion on the basis that the
restitution decree aims as cohabitation and consortium and not merely for sexual intercourse,
similarly in the present petition the State subject PRC condition is to protect and preserve the
culture, and demography of State of K & L and not to restrict any woman to marry outside the
state with a non-state subject.

Furthermore, The policy where a female state subject loses her PRC after marrying to a non-
state subject was due to the written condition “Valid till marriage” which was in a judgement
of 2002 was removed, and it was held that ‘a daughter of a permanent resident marrying a non-

34
Shiksha, Reasonable Classification Under Art 14, LEGAL SERVICES INDIA,
http://www.legalservicesindia.com/article/1061/Reasonable-Classification-under-article-14.html
35
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and Ors. 1958 AIR 538
36
2 Dr. Ashok K. Jain, Constitutional Law of India, 151 (3rded. 2017)
37
Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66
38
Smt. Saroj Rani v. Sudharshan Kumar Chadda, AIR 1984 1562

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MEMORIAL FOR RESPONDENT
permanent resident will not lose the status of permanent resident of the State K & L’. Thus,
there is no coercion from the State in matter of marriage.

III. THE NOZANGABAD REFUGEES, KARISHMA RAJ AND ANR. (AFTER HER
MARRIAGE TO A NON-STATE SUBJECT) SHOULD GET THEIR
PERMANENT RESIDENTIAL STATUS AND STATE SUBJECT PRIVILEGES
IN THE STATE OF K & L.

The Nozangabad Refugees, Karishma Raj Mehta and Anr. are not entitled for permanent
resident status as (III.i) Nozangabad refugees are not state subject (III.ii) There is not enough
evidence that Petitioner no. 3 is a state subject.

(III.i) Nozangabad refugees are not state subject

Refugees are defined in 1951 Refugees Convention as “someone who is unable or unwilling to
return to their country of origin owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group, or political opinion.”
39
The Nozangabad refugees in the present case, crossed the border of Union of Koshinda after
the Partition between Union of Koshinda and State of K & L in 1947, during this transition
period, these people migrated to the territory of Koshinda, and started residing in various parts
of Koshinda. As u/a 6 of the Constitution of Koshinda,40 the citizenship rights of the people
who migrated to Koshinda from Nozangad are given as notwithstanding with anything present
in article 5, a person who has migrated to the territory of Koshinda from the territory now
included in Nozangabad shall be deemed to be a citizen of Koshinda if (a) he or his parents or
his grandparents were born in Koshinda (b)(i) such person has so migrated before the 19 July,
1948, he has been ordinarily resident in the territory of Koshinda since the date of his migration,
or (b) (ii) where such person has so migrated on or after the 19 July, 1948 , has been registered
as a citizen of Koshinda by an officer appointed in that behalf by the Government of the
Dominion of Koshinda. Thus, the migrated refugees have the citizenship of Union of Koshinda.

Furthermore, the Nozangabad refugees, before the migration were residents of a state which
now is in territory of Nozangabad, the state was never a part of State of K & L. Prior to 1947,

39
Patrick Brown, What is a Refugee, UNHCR, https://www.unhcr.org/what-is-a-refugee.html
40
INDIAN CONST. art. 6

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MEMORIAL FOR RESPONDENT
i.e. the Partition of Nozangabad and Koshinda, the State of K & L was a princely state, and the
people of princely state were the ‘state subject’. In 1927 and 1932 Maharaja Harjinder Singh
of State of K & L issued two different notifications defining the state subjects and granting
them right to government office, and the right to land use and ownership, which were not
available to not state subjects41 On 26th October 1947, Maharaja merged the State of K & L in
the Union of Koshinda on the condition that the matters on which the Dominion Legislature
may make Laws for the State are on (A) Defence (B) External Affairs (C) Communications
and (D) Ancillary,42 rest of the law making power resides in the state, moreover this was
formalised in Dongal Agreement, 1952 which specifies that State legislature has the power to
make laws conferring special rights and privileges on the state subjects, in view of the State
subject notification of 1927 and 1932, and also for those state subjects who had gone to
Nozangabad and returned to State of K & L.43 Further the Constitution of State of K & L in its
sec 6 defines Every person who is, or is deemed to be citizen of Koshinda under the provision
of Constitution of Koshinda shall be a permanent resident of State, if on the 14 May 1954, (a)
he was a State subject of class I or class II or (b) have lawfully acquired immovable property
in the state or is resident of the State not less than 10 years prior to the date (2) any person who
was previously before 14 May 1954 was a state subject and migrated after 1 March, 1947 to
the territory now included in Nozangabad returns to the state with permit for resettlement. (3)
the state subject of class I and class II shall have the same meaning as the State Notification
dated 12 April 1927 and State notification dated 27 June, 1932.44 In the present case,
Nozangabad refugees, were under the State notification not State subject of either Class I or
Class II, thus after their migration they cannot be declared as State Subjects due to the
provisions of Constitution of State of K & L, although they are citizens of Koshinda. Koshinda
provides single citizenship to its citizen, and there is no concept of dual citizenship, thus
Permanent resident certificate is not a form of citizenship but a type of certificate which make
such state subjects eligible for certain privileges, just as the certificates provided to Other
Backward Classes.

41
Line no. 54-59, Proposition
42
Instrument of Accession, Schedule of Instrument of Accession the Matters with Respect to Which the
Dominion Legislature May Make Laws For This State
43
Delhi Agreement, 1952. Cl. 2
44
The Constitution of J & K, 1956 (INDIA), sec. 6

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MEMORIAL FOR RESPONDENT
(III.ii) There is not enough evidence that Petitioner no. 3 is a state subject.

The Petitioner no. 3 is not eligible for privileges as of State Subject because there is not enough
evidence to prove the Petitioner no. 3 contention of being state subject. The Petitioner no. 3 in
the current case is an Adv Karishma Raj Mehta who is a former member of the NCW and
Santosh Kashyap a doctor. Karishma Raj Mehta describes her as a “Langoshian woman by
Ancestory”45 and thus, being a Langoshian woman a state subject of the State of K & L. For
this she claims that the genealogy of her ancestors can be traced through 11,000 years of “myths
and traditions”, she says Langoshians are “Paryan Aaraswat Trahmins” who lived on the banks
of mythical river Aaraswati before they migrated to Langosh. During, the tyranny of Afghan
her ancestors were forced to migrate from the state.46 The evidence provided by Petitioner is a
type of hearsay evidence. Hearsay evidence means whatever a person is heard to say or
whatever a person declares on information given by someone else47 Hearsay evidence is made
inadmissible under Koshindian Evidence Act, under section 60 of the Act; which read as Oral
evidence must be direct if to a fact which could be seen, heard, perceived by any other senses
or in any other manner is given as an evidence by the witness who saw, heard, perceived it, or
when it refers to any opinion or to the grounds on which the opinion is held, it be must be the
evidence of the person who holds the opinion on those grounds.48 Therefore, any of such matter
which is not directly heard, seen, perceived or opined by the witness is not admissible in the
Court. This is explained by the Best Evidence rule according to which it is cardinal rule in law
of evidence that the best available evidence should be brought before the court.49 Thus, sec 60
requires oral evidence to be direct, due to the fact that the reliability or veracity of direct
evidence is on the person who gives evidence. Further the relevancy and admissibility are two
different contexts.50 Here in the present case the facts given by the petitioner are not sufficient
to prove the relevancy of facts under sec 13 of the Koshindian Evidence Act, which provides
that where the question is as to the existence of any right or custom, the following fact is
relevant: (a) Any transaction by which right or custom, in question was claimed, created,
modified, recognised, asserted or denied or which was inconsistent with its existence;

45
Line 126-127, Proposition
46
Line 141-147, Proposition
47
Batuk Lal, THE LAW OF EVIDENCE, 424 (22nd ed. 2018)
48
The Indian Evidence Act, 1872, (22 of 2018)
49
Batuk Lal, THE LAW OF EVIDENCE, 426 (22nd ed. 2018)
50
Batuk Lal, THE LAW OF EVIDENCE, 427 (22nd ed. 2018)

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(b) Particular instances in which the right or custom was claimed, recognised, or exercised, or
in which its exercise was disputed, asserted or departed from.51. In the present petition, the
petitioner has not presented any fact which shows the transaction of her right claimed as a state
subject, or any such particular instance were such right was claimed or recognised. Her
ancestors were forced to migrate during tyranny of Afghan, which was during 1753-1819,
however the State Notification regarding declaration of definition of State subject was issued
in 1927 and 1932 during which their return might have created such right, but no such right
back then was created. Therefore, she cannot claim to be eligible for being state subject.

Furthermore, contention related to the Permanent resident privileges of a female state subject
after her marriage to a non PRC holder was resolved in a judgement of 2002 case, where it was
held that a daughter of permanent resident of the State of K & L will not lose her permanent
resident status after marrying a non-state subject.52

51
The Indian Evidence Act, 1872, (22 of 2018)
52
State of J & K v. Dr. Susheela Swahney and Anr. AIR 2003 JK 83

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 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Supreme Court be pleased to:

1. To Dismiss the present petitions and not to issue the writ of Mandamus and to dismiss
the clubbing of present petitions.
2. To Dismiss the review petition of the Nozangabad Refugees,
3. To Declare that the Presidential Order, 1954 is not ultra vires to the Constitution of
Koshinda,
4. To Hold that the Art 35A is not violative of Basic Structure, Art 14, and Art. 21 of the
Constitution,
5. To Hold that the Nozangabad Refugees, and Petitioner no. 3 are not eligible for
permanent resident status.

AND PASS ANY OTHER ORDER, DIRECTION AND RELIEF THAT THIS HON’BLE
COURT MAY DEEM FIT IN THE INTEREST OF justice, equality and good conscience.

All of which is humbly prayed,

R-08
Councils for the Respondent

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