Team Code: SLC16

1st S.S. Jain Subodh Law College, Jaipur, Intra Moot Court Competition, 2019

In the Supreme Court of Jurisdiction, 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:

Petitioner

Versus

Union of Koshinda
(Respondent)

Memorial on behalf of Union of Koshinda (Respondent)

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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. 19

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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

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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
Keshvananda Bharti vs State of Kerela
Sajjan Singh Yadav vs State of Rajasthan
Golaknath vs State of Punjab
Shankari Prasad vs Union of India
D. S. Nakara v/s UOI
Mohan Kr Singhania v/s UOI
Shabbir Ahmed v/s UOI
State of West Bengal v/s Anwar Ali Sarkar
Meenakshi Mills Ltd. v/s A. V. Vishwanath
Writ petition 144 of 1971
Writ petition (civil) 135 of 1970
Writ petition nos. 31, 50, 52, 54, 81 and 82 of
1964
Writ petition no. 153 of 1966
Petition no. 166, 287, 317-319, 371, 372, 374-
389, 392-395, 418, 481-485 of 1951
Writ petitions 5939-5941 of 1980
Civil appeal nos. 5439-5452 of 1990
Criminal writ petition 587 of 1996
Appellate civil jurisdiction case nos . 297 and
298 of 1951
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

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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

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STATEMENT OF JURISDICTION

The Respondent 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 Koshinda, for being affecting the basic structure of the constitution of
Koshinda.

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STATEMENT OF FACTS

1. Federalism is a device by which plural qualities of a society are articulated and protected. It
is 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 Koshindan 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 Paramount. 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.

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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
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 Koshindan 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 fulfill the conditions :

(a) Already the State subject by 1954

(b) Had lived there for at least 10 years and lawfully acquired immovable property.

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.

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ISSUES RAISED

I. Whether petition filed by the petitioner is maintainable before the Supreme Court of

Koshinda?

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

arbitrary, void and is violative of Art. 368(i) and Art. 370 of the Constitution of

Koshinda?

III. Whether the Art. 35A of the Constitution of State K&L is unconstitutional as it affects

the basic structure of the Constitution of Koshinda?

IV. Whether the Art. 35A of the Constitution of State K&L is violative of Right to Equality,

Right to Freedom and Right to Personal Liberty under Art. 14, 19 and 21 respectively of

the Constitution of Koshinda?

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SUMMARY OF ARGUMENTS

I. THE PETITION FILED UNDER THE COURT IS NOT MAINTAINABLE

The petition filed under the court is not maintainable. Firstly, Art. 370 and Art. 35A has been
conferred with disparate and greater degree of state autonomy as well as special powers to
conduct their internal affairs. Since, they have their right to conduct their internal affairs and
the revocation of Art. 35A of the Constitution of State of K&L is considered as the internal
affair. Secondly, it is clearly stated in Art. 370 (3) that “only 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….. Provided that the recommendations of the Constituent
Assembly of the State shall be necessary before the President issue such notifications”. Thus, it
clearly states that the petition is beyond the Jurisdiction of the Supreme Court of Koshinda.

II. THE CONSTITUTION ORDER (APPLICATION OF STATE K&L), 1954 IS

VALID AND CONSTITUTIONAL

The Respondent humbly submits that the President’s Constitutional Order (Application to State
of K&L) is valid and constitutional. Firstly, Art. 35A was inserted in 1954 according to the
powers given to the President under Art. 370 (1) (d) which states “such of the other provisions
of this Constitution shall apply in relation to that State subject to such exception and
modifications as the President may by order specify”. It is said so because the State of K&L has
a special autonomous status among all the States. Secondly, it is also valid even if there was no
discussion in the Parliament regarding this Constitution Order because, it is clearly stated in Art
370 (1) (d) that the President can act according to interests of the State subjects of the State
K&L. Hence, there was no need to involve the Parliament in the discussion as the President
function/act according to the aid & advice of the Council of Ministers.

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III. THE ART. 35A IS CONSTITUTIONAL AND DOESN’T AFFECT THE BASIC
STUCTURE OF THE CONSTITUTION OF KOSHINDA

It is humbly submitted that the basic structure of the Constitution is not at all affected by the Art.
35A. Firstly, because there are many other States in different parts of the world those who have
adopted federalism and are functioning well enough. For example, United States of America,
Canada Australia and Switzerland have been leading federations of the world and being a
Federal country they have attained heights in development. But, in Koshinda it is seen that there
is distribution of power between Central and State level with a strong Centralising tendency.

IV. THE ART. 35A IS NOT VIOLATIVE OF ART. 14 (RIGHT TO EQUALITY)

It is humbly submitted before the Hon’ble Court that Art. 35A is not violative of the Right to
Equality (Article 14) because the special provisions given under article 35A are based on the
doctrine of Reasonable Classification.

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ARGUMENTS ADVANCED

I. THE PETITION FILED BEFORE THE SUPREME COURT IS NOT

MAINTAINABLE

The Respondent submits that the petition filed before the Supreme Court is not maintainable
because the State of K&L is enjoying a special status autonomous State which gives them special
powers to conduct their internal affairs. [A] And also, only the President may, by public
notification, declare that this Article shall cease to be operative with necessary consultation of
the Constituent Assembly of the State. [B]

[A] Powers to conduct their internal affairs

 Under the Art. 370 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. 1 The Union
Government cannot interfere in the internal matters of the State.
 The power to abolish or amend, as the matter should be, is only subjected to the President
with the recommendation of the Constituent Assembly of the State. 2 Since, the Art. 370 is
considered as an internal affair of the State and hence, should be left to be decide by the State
itself as per their own convenience.3
 The Instrument of Accession which was signed between the then Prime Minister and
Maharaja Harjinder Singh, if compared to the Instrument of Accession, had some exceptions
and special conditions to be fulfilled which are:
(i) The legal control of the Union shall be limited to the matters of Defence,
Communications and External affairs.4
(ii) Any law introduced to the Republic of Koshinda, shall not be applied to the State of
K&L until and unless it is Ratified by State

1
Page 1, Moot Problem
2
Art. 370 clause (3) of the Constitution of Koshinda
3
D.D. Basu, The Shorter Constitution of India
4
Page 2, Moot Problem

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(iii) The State shall function under the Shadow of the Koshindian Constitution but shall
have a Constitution of the State and shall be administered by the same.5
(iv) The provisions of Art 1 of the Constitution of Koshinda shall apply in relation to the
State of K&L through the Art 370.6
(v) The power of Parliament to make laws for the State of K&L is limited to -
(a) Those matters in the Union List and the Concurrent List , which in consultation of
the Government of the State, are declared by the President to correspond to
matters specified in the Instrument of Accession;
(b) Such other matters in the Union List and the Concurrent List only with the
concurrence of the Government of State, the President may by order specify7
(vi) The Permanent residents of the State shall enjoy some special rights in the State
including right to own property, right to scholarships, right to government office etc.

After a brief examination of the Art 370, we can conclude that the following petitions can be
considered as an internal affair and beyond the Jurisdiction of the Supreme Court.

[B] PRESIDENT CAN ONLY ABOLISH THE ART 370 AFTER THE
RECOMMENDATION OF THE CONSTITUENT ASSEMBLY OF STATE

 It is clearly stated in Art 370 (3) that “Notwithstanding anything in the foregoing provisions
of this article, the President may, by public notification, declare that this article is shall
cease to be operative or shall be operative only with such exceptions and modifications and
such date as he may specify……..provided that the recommendation of the of the Constituent
Assembly of State shall be necessary before the President issues such a notification.”
 We can conclude from the Art 370 (3) that only the president has right to declare the Art 370
cease to be operative with the consent of Constituent Assembly of State. Even the provisions
of Art 368 (1) are not applicable in the State of K&L, i.e, the power of Parliament to amend
the Constitution.

5
Dr J.N. Pandey, the Constitutional Law of India
6
Art 370, clause (1), sub-clause (c) of the Constitution of Koshinda
7
Dr J.N. Pandey, the Constitutional Law of India

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 The Parliament can make amendment for the whole of the Constitution 8 without damaging
the basic structure of the Constitution9, but Art 370 limits the power of the Parliament as they
cannot amend the provision of Art 370 or abolish Art 370. The President has the power under
Art 370 to amend or abolish the Art 370 with the consultation of State Constituent
Assembly.10 The President shall act according to the aid and advice of the Council of
Ministers which shall be headed by the Prime Minsiter. 11 But, there is no where describe that
any other authority is authorized to amend the Art 370.

Hence, after this brief examination, we can conclude that the petition filed before the Hon’ble
Court is not maintainable and is beyond the Jurisdiction of the Supreme Court of Koshinda.

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

1954 IS VALID AND CONSTITUTIONAL

It is humbly submitted that the Constitution Order (Application to State K&L), 1954 is valid and
constitutional as the order were passed according to the powers given to the president under
Article 370. [A]12 It is also argued that there was no involvement of the Parliament while
promulgating Art 35A under the Constitution Order (Application to State K&L). While
examining the statement we came to a conclusion that the there is no need of involvement of the
Parliament, as President Functions according to the aid & advice of the council of Ministers
[B].13

[A] ORDER WAS PASSED ACCORDING TO THE POWERS GIVEN TO THE

PRESIDENT UNDER ART 370

 Art 370 is a debatable issue from decades to the present scenario also. It is said that the
article 35A is invalid and unconstitutional. In the case of Puranlal Lakhanpal vs The
President of India14 ; the court discussed the powers of the president’s under the Article 370
8
Indira Gandhi vs Raj Narain AIR 1975 SC 2299
9
Minerva Mills vs Union of India AIR 1980 SC 1789
10
D.D. Basu, The Shorter Constitution of India
11
Art 74, clause (1) of the Constitution of India
12
Page 4, Moot Problem
13
Art 74, clause (1), of the Constitution of India
14
AIR 1969 SC 1519

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to ‘modify’ the Constitution.15 The Court observes that under Art 370 of the Constitution, the
president may modify an existing provision of the Constitution concerning the interest of the
citizens of the State.16
 The constitution order (Application to State K&L) doesn’t violate any provision given under
the Art 368 (i), because the Art 370 itself limits the powers of the Parliament by allowing the
Parliament to make laws regarding Defence, External affairs, communications 17 and by
giving special status of autonomous state to the State of K&L to conduct their internal
matter.18

[B] President function on the aid & advice of the Council of Ministers and no need
of involvement of Parliament concerning Art 370

 Under Art 74 (1), it is clearly stated that “there shall be a council of ministers headed by the
Prime Minsiter and the President shall function according to the aid & advice of the Council
of Ministers.19 Even the Powers of the President are functioned according to the aid & advice
of the Council of Minsiters.
 Since, it is clearly stated in Art 370 that President and Constituent Assembly of the State of
K&L are the body authorized to modify the Art 370 20 and there not even a single word that
would give us the widest aspect to involve the Parliament in the concerned process even if
the Art 368 gives absolute power to the Parliament to amend the Constitution.21
 The Constitution Order (Application of State K&L), 1954 is being amended regularly till
date. It concludes that if the Order were unconstitutional and invalid, then it should have
been declared ultra vires the date it was issued.

After brief study on the concerned topic, we can come to conclusion that the Constitution Order
(Application of State K&L), 1954 is constitutional and valid.

15
Mohd Maqbool vs State of J&K AIR 1972 SC 963
16
Puranlal Lakhanpal vs The President of India AIR 1961 SC 1519
17
Instrument of Accession between Prime Minister and the Maharaja
18
The Constitution of Jammu & Kashmir, its development and comments Justice A.S. Anand 1994
19
Art 74, clause 1 of the Constitution of India
20
Art 370, clause 3 of the Constitution of India
21
Keshvananda Bharti vs State of Kerela AIR 1973 SC 1461 : SCC 225

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III. ART 35 A IS CONSTITUTIONAL AND DOESN’T AFFECT THE BASIC

STRUCTURE OF THE CONSTITUTION

The respondent humbly submits that the art 35A is Constitutional and doesn’t affect the basic
structure of the Constitution because, in any aspects it does not affects the Federal nature of the
Constitution nor forbid any Rights of the Citizens. In fact, it is providing some Special Rights to
the Citizens of the State K&L [A]. The classification is not done on the basis of race, caste, sex,
religion or place of birth but the Doctrine of Reasonable Classification was kept in mind. [B]

[A] Federal nature of Constitution is unaffected

 The Preamble of the Constitution describes the Federal nature of the Constitution. Since
Koshinda is a country of diversity and also adopted Secularism, a government of federal
nature would be just accurate for a country which upholds national unity, democracy.22
 Federalism means that the powers of Government are divided into two sub-ordinates. But we
have a twist in the story.23 Koshinda has a Government which is federal in nature. In
Koshinda the power are divided into Central level and State but it has a strong centralizing
tendency
 This type of federalism always creates chaos amongst the scholar. But the State of K&L
gives us the finest definition of federalism. There is dual a citizenship in the State of Kashmir
which can be seen in the United States of America. And none of the provision is the hurdle
between the developments of the State.
 In the court it was held that the Legislature and Judiciary may interpret the Constitution with
different perspective24 but, the Constitution must be held supreme because 2526, Constitution is
the will of the people27 and it shall prevail in front of any authority.2829

22
Dr. J.N. Pandey, Constitution of India
23
Ibid.
24
Sajjan Singh Yadav vs State of Rajasthan AIR 1965 SC 845
25
Golaknath vs State of Punjab AIR 1967 SC 1643
26
Minerva Mills vs Union of India AIR 1980 SC 1789
27
Keshvananda Bharti vs State of Kerela AIR 1973 SC 1461 : SCC 225
28
Shankari Prasad vs Union of India AIR 1951 SC 458
29
Indira Gandhi vs Raj Narain AIR 1975 SC 2299

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Therefore, we can conclude that basic structure of the Koshindian Constitution is unaffected by
the Provisions under Art 35A because, the Constitution of Koshinda is still considered supreme.
Even if, it is stated that, the State of K&L shall be administered according to the Constitution of
the State but it shall function under the shadow of the Constitution of Koshinda.

IV. ART 35A IS NOT VIOLATIVE OF ART. 14 (RIGHT TO EQUALITY)

It is humbly submitted to the Hon’ble Court that any provisions described under Art 35A is not
violative to the Art 14, i.e, the Right to Equality which is one of the most important element of
the Constitution of Koshinda as well as it is one amongst the Fundamental Rights which are
guaranteed to the citizens by the State. The Art 35A is said to be constitutionally valid because
the Special Rights given under the Art 35A are subjected to the Doctrine of Reasonable
classification.

DOCTRINE OF REASONABLE CLASSIFICATION

 Art 14 provides equality for everyone but law cannot persist, because inequalities are there in
the society. These inequalities are of various nature such as educational, geographic, gender,
religion, caste etc. It is therefore important that these inequalities must be acknowledged and
laws should be frame in such a way so as to address & correct the inequalities.30
 In consonance of these the parliament while making law must differentiate b/w the people
who are equal & those who are not. This form of classification should be made for achieving
a specific end & should not be an artificial or arbitrary classification.31
 In the case of Lakhsmi Khandsari vs State of U.P.32 the court has laid down two disk
regarding Reasonable classification :
(i) Intelligible Diffrentia – the classification must be made on the basis intelligible diffrentia
which distinguishes person on things that are grouped together from others and left out of
others.
(ii) Nexus – this diffrentia must have a rational relation to the objective of the law

30
H.M. Seervai, The Constitutional Law of India
31
D.D. Basu, The Shorter Constitution of India
32
AIR 1981 SC 873

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 Then in the Case of Ramakrishnan Dalmia vs Justice Tendulkar33, the true meaning and scope
of Art 14 was explained by the principle laid down by the Supreme Court.
 Some illustrations of Reasonable classification are :
i. D. S. Nakara v/s UOI AIR 1983 SC130
The Court held that an arbitrary cutoff date after which pension will not be paid doesn’t
have any rational basis behind it. This is not reasonable classification & therefore such a
law will not be valid.
a. Mohan Kr Singhania v/s UOI AIR 1992 SCR Supl. (1) 46
The Supreme Court ruled that each of the various Civil Services i.e. IAS, IFS, IPS & IRS
etc. are separate & determinate services forming a distinct cadre bounded on intelligible
differentia having a rational & reasonable nexus to the object which is to be achieved.
b. Shabbir Ahmed v/s UOI AIR 1989 SC 1403
Art 14 doesn’t outlaw discrimination between the State and the private individual because
the two are not standing on the same footing. Therefore creation of monopoly in the
favour of State is valid under Art 14.
c. State of West Bengal v/s Anwar Ali Sarkar AIR 1952 Cal. 150
Special Court were made by the State for speedy trial of certain cases. The Court didn’t
find any reasonable classification as do which cases were to be considered for these
special Courts therefore the law was held to be invalid.
d. Meenakshi Mills Ltd. v/s A. B. Vishwanath Sastri AIR 1954 SC 330
Supreme Court has observed art 14 guarantees equal protection in both substantive and
procedural method. The implication is that all litigant similarly situated are entitled to
save procedural right for relief and defense without discrimination.
e. Suneel Jately v/s State of Haryana (1984) 4 SCC 296
In this case the reservation of 25 seats was given on the basis of education in rural school
from class 1 to 8 and was held to be violative of art 14 and invalid as the classification
between the rural education and urban educated student for this purpose was wholly
arbitrary and irrational having no nexus to the object.

33
AIR 1958 SC 538

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f. Y. Srinivasa Rao v/s J. Veeraih AIR 1993 SC 929

The Court held the policy of the Govt. to prefer an uneducated person over an educated
person amount to allowing premium on ignorance in competence and consequently in
efficiency and therefore unconstitutional.
g. State of Maharastra v/s Manubhai Pragaji Vashi (1995) 5 SCC 730
Supreme Court held the denial of grants in aid to recognize private law colleges while
extending such benefit to other faculties which is Arts, Science, Medical etc. by the State
of Maharastra discriminately and involution of art 14 of the constitution
h. Directorate of Film Festivals v/s Gourav Ashwin Jain AIR 2007 SC 1640
Supreme Court held that restricting entry to only films certified by Central Board of Film
Certification is not unreasonable restriction on right of Film nahers. The Govt. policy for
National Film Awards is to restrict entry of the those films which have been certified by
the Board for exhibition that film intended for public exhibition is to select best film from
among those which the public can see enjoy.

After the brief examination of the Art 14 , Art 35A and Doctrine of Reasonable classification we
can come into a conclusion that the Special Rights enjoyed by the Permanent Citizens of the
State of K&L are nothing more than a classified citizens of Koshinda enjoying the benefits of
Reasonable classification.

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 :

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1. That, the petition filed under the Supreme Court is not maintainable
2. That, the Constitution Order (Application to State K&L), 1954 is valid and constitutional
3. That, Art 35A is constitutional and valid and doesn’t affect the basic structure of the
Constitution of Koshinda
4. That, Art 35A doesn’t violate the Right to Equality (Art 14)

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)

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