Memo For Petitioner Final

Team Code: SLC16
1st S S Jain Subodh Law College, Jaipur, Intra Moot Court Competition, 2019
In the Supreme Court of Jurisdiction of, Koshinda
Petition No. ______ 2019
Case Concerning:
The revocation of Constitution Order (Application to State K&L ), 1954
The Constitution of Koshinda
In the Matter of:
Union of Koshinda
(Respondent)
Versus
Petitioner
Memorial on Behalf of Petitioner

S.S. JAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION 2019-2020
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………... Pg. 2
INDEX OF AUTHORITIES………………………………………………………………. Pg. 3
STATEMENT OF JURISDICTION………………………………………………………. Pg. 5
STATEMENT OF FACTS………………………………………………………………… Pg. 6
ISSUES RAISED………………………………………………………………………….. Pg. 8
SUMMARY OF ARGUMENTS………………………………………………………….. Pg. 9
ARGUMENTS ADVANCED…………………………………………………………….. Pg. 11
PRAYER…………………………………………………………………………………... Pg. 18
Page | 1
{MEMORIAL ON BEHALF OF THE PETITIONER}
LIST OF ABBREVIATIONS
AIR All India Reporter
SCC Supreme Court Cases
ART. Article
HON’BLE Honourable
No. Number
ORS. Others
Pg. Page
SC Supreme Court
& And
LJ Law Journal
UOI Union of India
Page | 2
INDEX OF AUTHORITIES
BINDING PRECEDENTS
Supreme Court Cases
Indira Gandhi vs Raj Narain Civil appeal no. 887 of 1975
Minerva Mills vs Union of India Writ Petition no. 356-361 of 1977
Puranlal Lakhanpal vs The President of India Civil appeal no. 49 of 1968

Mohd Maqbool vs State of J&K Writ petition 144 of 1971
Keshvananda Bharti vs State of Kerela Writ petition (civil) 135 of 1970
Sajjan Singh Yadav vs State of Rajasthan Writ petition nos. 31, 50, 52, 54, 81 and 82 of
1964
Golaknath vs State of Punjab Writ petition no. 153 of 1966
Shankari Prasad vs Union of India Petition no. 166, 287, 317-319, 371, 372, 374-
389, 392-395, 418, 481-485 of 1951
D. S. Nakara v/s UOI Writ petitions 5939-5941 of 1980
Mohan Kr Singhania v/s UOI Civil appeal nos. 5439-5452 of 1990
Shabbir Ahmed v/s UOI Criminal writ petition 587 of 1996
State of West Bengal v/s Anwar Ali Sarkar Appellate civil jurisdiction case nos . 297 and
298 of 1951
Meenakshi Mills Ltd. v/s A. V. Vishwanath Writ petitions nos. 330 to 333 of 1954
Sastri
Suneel Jately v/s State of Haryana Writ Petition nos. 7014, 7426-28, 7419,Etc.
And Special Leave Petitions (Civil) Nos. 9149,
9076 and 9289 of 1982
Y. Srinivasa Rao v/s J. Veeraih Civil Appeal No. 1806 of 1992
Page | 3
State of Maharastra v/s Manubhai Pragaji Civil Appeals Nos. 7373-7374 of 1995
Vashi
Directorate of Film Festivals v/s Gourav Civil Appeal no. 1892 of 2007
Ashwin Jain
CONSTITUTION
 Constitution of India
STATUTES REFERRED
 Indian Penal Code

 Ranbir Penal Code
 Code of Civil Procedure
BOOKS REFERRED
 D.D. Basu, The Shorter Constitution of India

 Dr J.N. Pandey, the Constitutional Law of India
 The Constitution of Jammu & Kashmir, its development and comments Justice A.S. Anand 1994
 H.M. Seervai, The Constitutional Law of India
Page | 4
STATEMENT OF JURISDICTION
The Petitioner humbly submits this memorandum for the petition filed before this Hon’ble Court.
It invokes the issue of challenging the validity of Provisions given under Art. 370 and Art.35A of
the Constitution of India, for being affecting the basic structure of the constitution of India.
Page | 5
STATEMENT OF FACTS
1. Federalism is a device by which plural qualities of a society are articulated and protected. Itis
devised to secure both regional autonomy an national unity. It is a product of historical forces
in plural societies. If the forces of national unity are very strong in such society, the central
government shall have more powers. It is the principle which defines the relationship with
the Central Government at the National Level, and its constituent units at the regional, state
or local levels
2. The provisions under Koshindian Constitution are in pari-materia with the Constitution of
India
3. Koshinda has 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 Constitution of Koshinda establishes the Supreme Court of
Koshinda which is the final interpreter of the ‘Constitution of Koshinda’ and is considered as
the custodian of basic civil rights and liberties of its citizens.
4. Under the Constitution of Koshinda, the State of K&L has been conferred with disparate and
greater degree of state autonomy as well as special powers to conduct their internal affairs.
The autonomy of K&L has been enshrined and retained through the provisions contained
under Art. 370 of the Constitution of Koshinda, due to which the State of K&L has been
debatable issue from the very day of its formation and its formation and it is facing higher
militancy and internal insurgency at the behest of various internal as well as external banned
organizations.
5. Prior to 1947, the State of K&L was a princely State under the British Paramountcy. The
people of the princely state were “state subjects”, not British colonial subjects. In the case of
the State of K&L, the political movements in the state in the early 20 th century led to the
emergence of “hereditary state subject” as a political identity for the State’s people.
6. Origin of Art. 35A dates back to 1927 when the Homas (community) from the State of K&L
approached Maharaja Harjinder Singh fearing that arrival of people from neighbor provinces
will lead to their control in government services. These fears led to the issuance of separate
Page | 6
notification by the Maharaja in 1927 and 1932 which defined the State subjects and granted
them right to government office and the right to land use and ownership, which were not
available to non-state subjects.
7. Following the accession of the State of K&L to the Koshindian Union on 26 October 1947,
The Maharaja ceded control over defence, external affairs and communications to the
Government of Koshinda. The Art. 370 of the Constitution of Koshinda and the concurrent
Constitutional Order of 1950 formalised this relationship.
8. Art. 35A was introduced through a presidential order called The Constitution (Application to
the State of K&L) Order, 1954. It provided a framework for the division of powers between
the State of K&L and the Union Government under Art. 370.
9. Art. 35A defines the “Permanent Residents” of the State of K&L, who are :
(a) Already the State subject by 1954
(b) Had lived there for atleast 10 years
10. Sec. 51 of the Constitution of State K&L defines the Rights of Permanent Residents that are :
(a) A person shall not be qualified to be chosen for Parliamentary seat unless he is a
permanent resident of the States
(b) No person can cast their vote until and unless, he is of 18 years & permanent resident of
the State
(c) No person who is not a Permanent Resident of the State K&L can own property there.
(d) No person who is not a Permanent Resident of the State K&L can obtain job within the
States of K&L Government.
(e) No person who is not a permanent resident of the State K&L can join any professional
college run by Government of the States of K&L or get any form of Government aid out
of Governmental Funds.
Page | 7
ISSUES RAISED
I. Whether the President’s Constitutional Order (Application to State of K&L), 1954 is
arbitrary, void and violative of Art. 368(i) ?
II. Whether the Art. 35A is unconstitutional as it affects the basic structure of the
Constitution of Koshinda ?
III. Whether the Art. 35A of the Constitution of State K&L is violative of Right to Equality,
Right to Freedom and Right to Life & Personal Liberty under Art 14, 19, 21 of the
Constitution of Koshinda respectively ?
IV. Whether petition filed by the petitioner is maintainable before the Supreme Court of
Koshinda ?
Page | 8
SUMMARY OF ARGUMENTS
I. THE CONSTITUTION ORDER (APPLICATION TO THE STATE OF K&L),

1954 IS INVALID AND UNCONSTITUTIONAL
It is humbly submitted that the Constitution Order (Application to the State K&L), 1954 is solely
unconstitutional and invalid. Firstly, it is clearly contradicts the Art 368 (i) which gives power
to the Parliament to amend the Constitution without damaging the basic structure of the
Constitution. There is no such provision mentioned in the Constitution which gives power to
President to amend the Constitution. Secondly, the Art 35A was inserted by an objectionable
way because, the Parliament were not involved in the discussion of the Art 35A and the
President act of amending the Constitution without the consent of Parliament, was beyond his
jurisdiction. Thirdly, after the Instrument was Accession was signed by the Prime Minister and
the Maharaja of State K&L, the introduction of this Art seems to be completely unnecessary and
the result of interpreting the article in its widest aspect.
II. THE ART 35A IS A UNCONSTITUTIONAL AND INVALID SINCE IT

AFFECTS THE BASIC STRUCTURE OF THE CONSTITUTION
The respondent humbly submits that the Art 35A is unconstitutional and invalid because it
affects the basic structure of the Constitution. Firstly, the provisions under Art 35A such as dual
citizenship, affects the values of national unity. It also affects the federal nature of the
Constitution because, of its unnecessary gift of special status of autonomous state, the federal
nature is not applicable evenly on all States of the Republic of Koshinda.
III. THE ART 35A IS VIOALTIVE OF THE FUNDAMENTAL RIGHTS
It is submitted that the provisions under Art 35A are contradictory and violative of the
Fundamental Rights under Art 14, 19 & 21. It is clearly mentioned in the Art 15 which forbids
Page | 9
any kind of discrimination on the basis of race, caste, sex, or place of birth. But, the Art 35A
itself discriminates on the grounds of caste and place of birth.
IV. THE PETITION FILED UNDER THE COURT IS MAINTAINANBLE
It is humbly submitted before the Hon’ble court that the petition filed before the Court is
maintainable. The Supreme Court of Koshinda is the final interpreter of the Constitution and is
considered as the guardian of the Constitution. The Court has Jurisdiction regarding the civil
right and liberties of the citizens and shall be there every time when there is an attack on the
Civil Rights & Liberties of the citizens and on the basic structure of the constitution.
Page | 10
ARGUMENTS ADVANCED
I. THE CONSTITUTIONAL ORDER (APPLICATION OF STATE

K&L), 1954 IS INVALID AND UNCONSTITUTIONAL
The Respondent submits that the Constitutional Order (Application to the State K&L) 1954, is
unconstitutional and invalid because the procedure to amend the Constitution which is mentioned
under the Art 368 (i) was not followed [A]. The Parliament, which has the only authority to
amend the constitution, was not involved in the discussion of these orders [B]. There seemed to
necessity for this amendment because the Instrument of Accession was signed previously b/w
prime minister and maharaja [C].
[A] PROPER PROCEDURE WAS NOT FOLLOWED
 It is clearly stated in the article 368(i) that “Notwithstanding anything in this constitution,
Parliament may in exercise of its constituent power amend by way of addition, variation or
repeal any provision of this constitution in accordance with the procedure laid down in this
article 1
 This article was added in the Constitution by the Twenty Fourth Amendment Act of 1971.
Article 368 has renumbered as clause (2) thereof by the constitution. We can conclude that
only the parliament has the right to amend the Constitution and the President has no power
under any provision of the Constitution to amend the constitution, either by an ordinance or
by any other Presidential Order.
 President can only amend the constitution as a temporary basis for limited time period and
only when the Parliament is not in session.2 If the Parliament is in active session and any
ordinance is passed, then the Ordinance shall be declared null and void.3
1
Art 368, clause 1, the Constitution of India
2
Dr J.N. Pandey, Constitutional Law of India
3
Art 123, the Constitution of India
Page | 11
[B] BEYOND JURISDICTION OF PRESIDENT
After a brief examination concerning the Constitution, we can find no traces of any provision
that empowers the President to modify any part of the Constitution. The Parliament is
empowered to amend any provision the Constitution without damaging the basic structure of the
Constitution.4
. [C] UNNECESSARY AMENDMENT
 By examining the Background of the Art 35A, it was introduced through a Constitution
Order (Application of State K&L), 1954. In fact, the Instrument of Accession was signed in
1947 between the Prime Minister and the Maharaja. 5 But the Provisions of Art 35A was
introduced in 1954, viz, after the Instrument of Accession was signed. Only condition that
were laid down during the Instrument of Accession was the special status of state autonomy6
 After brief examining the history we can conclude that Art 35A was an amendment done
without an urge of necessity. This act was done under the discretion of the President but
amendment of constitution is not to be done under any discretionary action, it requires the
will of the people which is represented by the Parliament.7
II. ART 35A IS UNCONSTITUTIONAL AND INVALID AS IT

AFFECTS THE BASIC FEATURE OF THE CONSTITUTION
It is submitted that the provisions under Art 35A are unconstitutional because it affects the basic
structure of the constitution. Firstly, the Constitution of India has a nature of national unity, but
4
Minerva Mills vs Union of India AIR 1980 SC 1789
5
Page 2, Moot Problem
6
7
Dr J N Pandey, Constitutional Law of India
Page | 12
the dual citizenship8 for the State subjects directly affects the unity of the Republic of Koshinda .
[A] Secondly, the Constitution has adopted a federal nature 9 with a strong centralizing tendency.
But the Art 35A prevents the even application of federalism among the territory of Koshinda [B]
[A] DUAL CITIZENSHIP IS AFFECTING BASIC STRUCTURE
 We all are aware that national unity is a basic necessity for any welfare state. National unity
is an utmost necessity for a country which adopts a democratic form of government but it is
an irony that Art 35A, mentioned in the Constitution of Koshinda directly attacks the
National unity of Koshinda10
 The citizens of State K&L have some special rights granted under Art 370. But the rights are
only for the ‘Permanent residents” of the state. But, the persons who all include the
definitions of the “Permanent residents” are decided by the provisions under Art 35A.
 The State provides a special certificate of “citizenship” for the locals if they fulfill all the
conditions for accquiring citizenship of the State, given under Art 35A. After accquiring the
citizenship they are declared “Permanent resident” of the State and are qualified to enjoy the
special rights given under Art 35A.11
 The State also has their different flag and a different constitution which acts under the
shadow of Constitution of India. Such kind of extra ordinary discrimination between States
of the same country is unknowingly affecting the National unity.
Hence, after a brief examination of the facts and statements, we can conclude that the idea of
dual citizenship, i.e, the citizen of State K&L & the citizen of India drastically affects the spirit
of National unity12 which was build up after decades of struggle.
[B] SPECIAL STATUS OF STATE AFFECTS BASIC STRUCTURE
 Under the Constitution of Koshinda, the State of K&L has been conferred with disparate and
greater degree of autonomy as well as special powers to conduct their internal affairs. The
8
Art 35A, the Constitution of India
9
The Preamble of the Constitution of India
10
D D Basu, the Shorter Constitution of India
11
12
Sampat Prakash vs State of J&K AIR 1970 SC 1118
Page | 13
autonomy K&L has been enshrined and retained through the provisions contained under
Article 35A13
 Due to the greater degree of autonomy as well as special powers granted to the State of K&L,
it has been a debatable issue from the very day of its formation that “is the formation of such
State is constitutional ?” “Aren’t the provisions of the Art 370 and 35A unconstitutional?”
 The Constitution of Koshinda has adopted federalism14. But the Art 35A & 370, which is
mentioned in the Constitution of India, is acting as a hurdle in the application of the
federalism.
 Federalism is a structure of Government where the powers are divided between Central level
and the Regional/State levels. Koshinda adopts federalism which has a strong centralizing
tendency, which means that the Centre/Union Government shall have more power than the
State/Regional Government.15
 But the Art 35A & 370 limits the powers of the Centre/Union Government and has been
conducting their internal affairs according to their own convenience. Even there is not
uniform application of Koshindian laws which are legislated by the Parliament until & unless
it is ratified by the State Assembly.16
Therefore, after a brief examination of the concerning topic, we can come to a conclusion that
due to the Art 35A and Art 370 is itself affecting the basic structure of the Constitution of India
and shall be declared unconstitutional and invalid.
III. ART 35A IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF

THE CITIZENS
It is humbly submitted that the provisions under Art 35A are contradictory and violative of
the Fundamental Rights under Art 14, 19 & 21 because it is clearly mentioned in the Art 15
which forbids any kind of discrimination on the basis of race, caste, sex, or place of birth.
But, the Art 35A itself discriminates on the grounds of caste and place of birth. [A]
13
14
Preamble, the Constitution of India
15
Dr J N Pandey, Constitutional Law of India
16
Page | 14
The Rights which are given to only “Permanent Residents” are violative of the Art 14, viz, Right
to Eqaulity; Art 21,viz, the Right to Life & Personal Liberty and Art 19,viz, Right to Freedom.
[B]
[A] DISCRIMINATION ON THE BASIS OF CLASS AND PLACE OF BIRTH
 The Provision of Art 35A discriminates between the citizens of India as well as “Permanent
residents” of the State of K&L and the citizens of India who are not the “Permanent
residents” of the State of K&L. The special rights conferred under Art 35A are as follows:
the State
of Governmental Funds.17
 Whereas, discrimination on the grounds of race, caste, sex, place of birth and class is
forbidden under the constitution of India18. But it can be observed that the discrimination is
based on place of birth and class of the citizens. Hence the Art 35A is violative of Art 15 and
should be declared unconstitutional.19
[B] VIOLATIVE OF ART 14, 15, 19 AND 21
 The special rights granted to the “Permanent residents” of the State of K&L under the
provisions of Art 35A violates the Art 14, 15, 19 and 21 of the Constitution. The special
rights under Art 35A are :
17
Dr J N Pandey, the Constitutional Law of India
18
19
Mohd Maqbool Damnoo vs State of J&K AIR 1972 SC 963
Page | 15
the State
of Governmental Funds.20
 The clause (b) is depriving the citizens of India to cast their vote even if they are above 18
years. It was held that Right to vote is an expression of the citizen democratic choice.21
 The clause (e) is depriving the citizens of India to get admission in any government college
and to redeem a government scholarship. It was held that Right to Education is a fundamental
right under the scope of Personal Liberty.22
 The clause (d) is depriving the citizens of India of Right to Livelihood. It was held that Right
to livelihood was a Fundamental right under the scope of Personal Liberty.23
 The clause (c) is depriving the citizens of Right to freedom under Art 19 (1) (e) which states
that “all citizens have rights to reside and settle in any part of the territory of India”. Since
the State is an integral part of India, thereafter it is not applicable in the State of K&L.
Hence, after the brief study of the topic concerned, we can come to conclusion that the Art 35A
is clearly violating the Fundamental Right of the citizens of India.
20
Dr J N Pandey, the Constitutional Law of India
21
Union of India vs Association of Democratic Rights AIR 2001 Delhi 126
22
Mohini Jain vs State of Karnataka AIR 1992 SC 1858
23
Olllga Tellis vs BMC AIR 1986 SC 180
Page | 16
IV. THE PETITION FILED BEFORE THE COURT IS MAINTAINBLE
The Petitioner humbly submits before the Hon’ble Court that the Petition filed before the
Supreme Court of is maintainable because the Constitution of Koshinda established the Supreme
Court of Koshinda as a final interpreter of the “Constitution of Koshinda” and is considered as
the custodian of basic civil rights and liberties of the citizens.24
24
Page | 17
PRAYER
In the lights of the issued raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Hon’ble Court be pleaded to adjudge, hold and declare :
1. That, the petition filed under the Supreme Court is maintainable
2. That, the Constitution Order (Application to State K&L), 1954 is invalid and
unconstitutional
3. That, Art 35A is unconstitutional and invalid as it affect the basic structure of the
Constitution of Koshinda
4. That, Art 35A violate the Fundamental right of the citizens of India
And pass order that this Hon’ble Court may deem fit in the interest of equity, justice and good
conscience.
And, for this act of kindness, the counsel for the Respondent shall duty bound forever pray.
Sd/-
(Counsel for Respondent)
Page | 18

Memo For Petitioner Final

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Memo For Petitioner Final

Uploaded by

Copyright:

Available Formats

Team Code: SLC16

In the Supreme Court of Jurisdiction of, Koshinda

Petition No. ______ 2019

The revocation of Constitution Order (Application to State K&L ), 1954

The Constitution of Koshinda

In the Matter of:

Memorial on Behalf of Petitioner

LIST OF ABBREVIATIONS……………………………………………………………... Pg. 2

INDEX OF AUTHORITIES………………………………………………………………. Pg. 3

STATEMENT OF JURISDICTION………………………………………………………. Pg. 5

STATEMENT OF FACTS………………………………………………………………… Pg. 6

ISSUES RAISED………………………………………………………………………….. Pg. 8

SUMMARY OF ARGUMENTS………………………………………………………….. Pg. 9

ARGUMENTS ADVANCED…………………………………………………………….. Pg. 11

AIR All India Reporter

SCC Supreme Court Cases

UOI Union of India

Supreme Court Cases

Indira Gandhi vs Raj Narain Civil appeal no. 887 of 1975

Minerva Mills vs Union of India Writ Petition no. 356-361 of 1977

Puranlal Lakhanpal vs The President of India Civil appeal no. 49 of 1968

 Indian Penal Code

 D.D. Basu, The Shorter Constitution of India

I. Whether the President’s Constitutional Order (Application to State of K&L), 1954 is

arbitrary, void and violative of Art. 368(i) ?

Constitution of Koshinda respectively ?

I. THE CONSTITUTION ORDER (APPLICATION TO THE STATE OF K&L),

II. THE ART 35A IS A UNCONSTITUTIONAL AND INVALID SINCE IT

III. THE ART 35A IS VIOALTIVE OF THE FUNDAMENTAL RIGHTS

IV. THE PETITION FILED UNDER THE COURT IS MAINTAINANBLE

I. THE CONSTITUTIONAL ORDER (APPLICATION OF STATE

[A] PROPER PROCEDURE WAS NOT FOLLOWED

[B] BEYOND JURISDICTION OF PRESIDENT

. [C] UNNECESSARY AMENDMENT

II. ART 35A IS UNCONSTITUTIONAL AND INVALID AS IT

[A] DUAL CITIZENSHIP IS AFFECTING BASIC STRUCTURE

[B] SPECIAL STATUS OF STATE AFFECTS BASIC STRUCTURE

III. ART 35A IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS OF

[A] DISCRIMINATION ON THE BASIS OF CLASS AND PLACE OF BIRTH

[B] VIOLATIVE OF ART 14, 15, 19 AND 21

IV. THE PETITION FILED BEFORE THE COURT IS MAINTAINBLE

(Counsel for Respondent)

You might also like