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Best Team Memorial Petitioner LCDNMCC National Moot 07 202 Riyarakesh11 Gmailcom 20240309 001006 1 43
Best Team Memorial Petitioner LCDNMCC National Moot 07 202 Riyarakesh11 Gmailcom 20240309 001006 1 43
th
7 LCDNMCC National Moot Court, 2023
Best Team Memorial - Petitioner
th
Law College Dehradun, Faculty of Uttaranchal University 6
National Moot Court Competition, 2022
Before the Hon'ble Supreme Court of Indiana
In the matter of
Petition No. __ of 2023
Aliza Firdos and others
Versus
State of Kaloshia
Petition No. __ of 2023
Indiana Young Lawyers Association
Versus
Union of Indiana
Petition No. __ of 2023
Akhandanand Tripathi
Versus
Union of Indiana
Petition Invoked Under Art. 139A of the Constitution of Indiana
Upon Submission to the Hon'ble Chief Justice and his Lordship's
Companion Justices of the Hon'ble Supreme Court of Indiana
TABLE OF CONTENTS
INDEX OF AUTHOHIRTY 05
CASES 05
REGULATIONS 07
CONSTITUTIONAL PROVISIONS 08
WEB SOURCES 09
OTHER SOURCES 09
STATEMENT OF JURISDICTION 10
STATEMENT OF FACTS 11
STATEMENT OF ISSUES 13
SUMMARY OF ARGUMENTS 14
ARGUMENTS ADVANCED 16
I. WHETHER, THE WEARING OF A HIJAB IS A FUNDAMENTAL
RIGHT UNDER ARTICLE 19 (1) (A) & ARTICLE 25 OF THE
CONSTITUTION OF INDIANA?
1. HIJAB BAN IS VIOLATIVE OF ARTICLE 19(1)(A) OF THE
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CONSTITUTION OF INDIANA
(1) HIJAB IS A FORM OF SYMBOLIC SPEECH PROTECTED BY
ARTICLE 19(1)(A)
(2) THE NOTIFICATION ISSUED FAILS TO PASS THE LITMUS TEST
FOR FREE SPEECH
(3) VIOLATION OF POSTULATES GIVEN BY PRIVACY
JURISPRUDENCE INTERMINGLED WITH FREEDOM OF
EXPRESSION
(4) THE ARGUMENT ABOUT QUALIFIED PUBLIC SPACE IS
FRIVOLOUS AND DEVOID OF ANY MERIT
(5) THE ACTION OF STATE GOVERNMENT IS IN VIOLATION OF
DOCTRINE OF PROPORTIONALITY & THE LEAST RESTRICTIVE
TEST
2. THE HIJAB BAN IS IN CLEAR VIOLATION OF ARTICLE 25
(1) THE WEARING OF HIJAB IS AN ESSENTIAL RELIGIOUS
PRACTICE OF DRAKISM RELIGION
3. THE HIJAB BAN IS ALSO VIOLATIVE OF ARTICLE 18 OF
ICCPR
II. WHETHER, THE 106TH CONSTITUTIONAL AMENDMENT ACT,
2022 IS, CONSTITUTIONALLY VALID?
1. IT IS AGAINST ARTICLE 1 OF THE CONSTITUTION AND
DEFIES THE BASIC INTENT OF THE CONSTITUENT
ASSEMBLY.
(1) RIGHT TO SELF-DETERMINATION CHALLENGES THE
PRINCIPLE OF NON-INTERVENTION.
(2) RIGHT TO SELF-DETERMINATION DOES NOT FIND MUCH
IMPORTANCE IN THE PRESENT SCENARIO.
(3) EQUATING RIGHT TO SELF-DETERMINATION WITH
INDEPENDENCE OR SECESSION WOULD BE
UNCONSTITUTIONAL
III. WHETHER, THE IMPOSITIONOF THE PRESIDENT'S RULE IN
THE STATE OF KALOSHIA WAS CONSTITUTIONALLY VALID?
1. THERE WAS NO SITUATION OF FAILURE OF
CONSTITUTIONAL MACHINERY IN THE STATE.
(1) FAILURE OF CONSTITUTIONAL MACHINERY IS NECESSARY
BEFORE IMPOSING PRESIDENT'S RULE IN THE STATE
(2) NOT EVERY SITUATION OF INTERNAL DISTURBANCE AND
RIOTS AMOUNTS TO FAILURE OF CONSTITUTIONAL
MACHINERY IN THE STATE
2. GOVERNOR WAS NOT GIVEN A CHANCE TO EXPLORE ALL
POSSIBLE ALTERNATIVES
(1) PROCLAMATION OF PRESIDENT'S RULE IS THE LAST RESORT
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School District10 noted that the only reason for which restrictions
may be placed on symbolic speech/conduct amounting to speech
is when such conduct caused an immediate disturbance and
disturbed the peace and order of the school. The Petitioners in the
present case, wore hijab as a symbol reflecting their faith and
belief in Drakism and in no way created any disturbance or public
disorder that could validate the impugned notification issued by
11
the Government of Kaloshia.
12
vii) The ruling in Tinker lays down the acknowledgment given by
the court that deviations from school uniform can express a
message, or a viewpoint and those deviations may not be
prohibited by school authorities unless there was a countervailing
interest in maintaining order which was threatened by the
deviation.
viii) Freedom of speech and expression in different forms is the élan
vital of sustenance of all other rights and is the very seed for
germinating the growth of democratic views. Plurality of voices
celebrates the constitutionalist idea of a liberal democracy and
13
ought not to be suppressed. To take away this right from the
citizens, the country will then break into fragments leading to
social, political, cultural and religious barriers and the subsequent
turmoil created by this.
ix) In National Legal Services Authority v. Union of India14, the
15
Hon'ble SC broadened the scope of Art. 19(1)(a) while stating
that the word ‘expression’ also includes mannerism as well as
clothes that a person wear depicting that person's identification to
the community. Similarly, the act depicting one's affiliation to a
particular religion through choice of clothes is a key aspect of a
person's fundamental right to expression and autonomy. x) A
similar view was also taken up in cases like Navtej Singh Johar v.
Union of India16 as well by the US SC in City of Chicago v. Wilson
17
et al . It has been observed that conduct of person is also crucial
in determining the community a person belongs to. The
judgement of the High Court of Kaloshia favouring the hijab ban is
causing the Petitioners from being able to communicate a part of
their religious identification to the society and is thus violating
their right to freely express their own selves the way they are and
should thereto be struck down on the anvil of causing religion-
based discrimination. Moreover, in Prathvi Raj Chauhan v. Union
of India.18 wherein it is observed that there is a preambular
assurance that the republic would be one which guarantees to its
people liberty, dignity, equality of status and opportunity and
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must abstain itself from using such powers and must find
alternative possible solutions. In using such powers there has to
be no-mala fide intention on part of the Union128. In the instant
case, no possible alternative was let to be explored by the Union.
Use of emergency powers in the state of Kaloshia in the absence
of such extraordinary situation clearly distorts the federal
structure of the Constitution.
IV. WHETHER THE STATE OF KALOSHIA CAN BE GIVEN THE
RIGHT TO SECEDE FROM THE UNION OF INDIANA?
It is humbly submitted before the Hon'ble SC of Indiana that the
State of Kaloshia cannot be given the right to secede from the Union
129
because firstly [1] Art. 1 of the Constitution grants Indiana the
status of a unitary state and secondly [2] the right to self-
determination does not necessarily give the states the right to secede.
1. ARTICLE 1 OF THE CONSTITUTION GRANTS INDIANA THE
STATUS OF A UNITARY STATE
i. It is humbly proffered before the Hon'ble SC that in Hinsa Virodhak
130
Sangh v. Mirzapur Moti Kuresh Jamat , the Hon'ble SC held that
131
by virtue of Art. 1 of the Constitution, states do not have a
right to secede from the Union of India. Furthermore, emphasis
was laid down on the fact that the Drafting Committee of the
Constituent Assembly deliberately used the word “Union” instead
132
of “Federation” in Art. 1 of the Constitution of Indiana.
ii. It is submitted that here in the present case as well, Art. 1 of the
Constitution of Indiana uses the word “Union” which indicates that
the Union of Indiana is not a result of agreements put in place by
different states and that the states cannot be given a right to
secede from the Union per say. Though the country can be divided
by the formation of different states under it so as to managing the
administration efficiently and effectively, but the country of
Indiana will still remain an integral whole with the people of the
country living under a single imperium that derives all powers
from a single source.
iii. In S. Srikishan v. State of Andhra Pradesh133, the court held that
the Union of India was not the result of any compact between the
component parts. As indicated by the preamble, it professes to
have been brought into existence by the people of India. It is,
therefore, self-evident that it is not open to any State or group of
States to secede from the Union or to vary the boundaries of their
own free-will.
iv. The Union of Indiana, as is clear from both the Preamble to the
Constitution and the Art. 1, it is clear that it is state formed by
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the idea for the different states under it to remain intactly a part
of the Union and cannot thereto, separate on their own whims and
fancies. A state guided by its free-will would otherwise, lead to
defeating the purpose the drafters of the Constitution.
v. It is humbly submitted that the State of Kaloshia signed the
Instrument of Accession and thereto, chose to be a part of the
Union of Indiana. Thus, defining the relationship of the State with
the Union of India, which clearly stipulates that the State of
Kaloshia, like other states, is and shall be an integral part of the
Union of Indiana. This further means that the instrument of
accession had the power and authority to unite different states
under one single imperium of the Union and states cannot secede
from it after paying allegiance to it for years.
vi. It is submitted that in the landmark S.R. Bommai v. Union of
134
India , that the states in the Union of India cannot claim
sovereignty as the Constitution has nowhere granted them the
right to secede from the Union.135 This claim is neither a qualified
nor constitutional right and thereto, states cannot assert this
right.
vii. In another case of Andhra Pradesh State Council of Higher
136
Education v. Union of India , the court reiterated the same and
held that in a Union like India states are not at liberty to propose
secession in any form from the Union. The states form an integral
part of the Union and vice-versa so taking one out of the other will
defeat the entire purpose and object of the unitarian status that
the people of the country have given to itself.
137
viii. In the case of Raja Ram Pal v. Lok Sabha , the court held that
138 139
Art. 3 & 4 of the Constitution does empower the Parliament
to alter the boundaries of the state, add new states into the union
by creation or by merging two existing states. The court referred
to the famous quote by Dr. B.R. Ambedkar that said “India is an
140
indestructible union with destructible units.” This clearly points
out to the significance of unitarianism as an integral part
embedded in the Constitution of the country.
141 th
ix. It is humbly submitted that the Art. 3A of 106 amendment to
the Constitution is arbitrary and unconstitutional in light of the
unitary status that Art. 1 of the Constitution of Indiana endows on
the country. It was stated in Madhav Rao Jivaji Rao Scindia v.
Union of India142, that every provision and statute have to be
construed in accordance with other provision to make it consistent
143
with the object sought to be achieved. The State of Kaloshia
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2
Art. 19(1)(a), The Constitution of India.
3
Art. 25, The Constitution of India.
4
Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461, 1480.
5
The Constitution (Forty-Second) Amendment Act, 1976.
6
Adelaide Company v. The Commonwealth, (1943) 67 CLR 116 (High Court of Australia).
7
Ibid, at 2.
8
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
9
Ibid, at 1.
10
Tinker v. Des Moines Independent School District, 393 US 503 (1969) (1969, Supreme
Court of United States).
11
Para 32, Moot Proposition.
12
Ibid, at 10.
13 th
MP Jain, Indian Constitutional Law, 1059 (8 ed., 2018).
14
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
15
Ibid, at 1.
16
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
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17
City of Chicago v. Wilson et al, 75 III.2d 525 (1978, Supreme Court of Illinois, United
States).
18
Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727.
19
Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501.
20
Ibid, at 2.
21
Art. 19(2), The Constitution of India.
22
Ibid, at 18.
23
Schenek v. United States, 249 US 47 (1919) (1919, Supreme Court of United States).
24
Dennis v. United States, 340 US 887 (1950) (1950, Supreme Court of United States).
25
Brandenburg v. Ohio, 395 US 444 (1969) (1969, Supreme Court of United States).
26
Shreya Singhal v. Union of India, (2015) 5 SCC 1.
27
Amish Devgan v. Union of India, (2021) 1 SCC 1.
28
Para 35, Moot Proposition.
29
Ibid, at 1.
30
Ibid, at 8.
31
Art. 21, The Constitution of India.
32
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
33
Ibid, at 31.
34
Ibid, at 31.
35
Para 33, Moot Proposition.
36
Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.
37
Ibid, at 35.
38
Para 34, Moot Proposition.
39
Ibid., at 37.
40
Ravinder Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293; Jeeja Ghosh v.
Union of India, (2016) 7 SCC 761.
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41
Ibid, at 37.
42
Ibid, at 37.
43
Ibid, at 1.
44
Om Kumar v. Union of India, (2001) 2 SCC 386.
45
Union of India v. Rajesh P.U, (2003) 7 SCC 285.
46
Dev Singh v. Punjab Tourism Development Corporation Ltd., (2003) 8 SCC 9.
47
Para 33, Moot Proposition.
48
Shri A.S. Narayana Deekshitulu v. State of Andhra Pradesh, (1996) 9 SCC 548.
49
S.P. Mittal v. Union of India, (1983) 1 SCC 51.
50
Ibid, at 9.
51
Regina (SB) v. Governors of Denbigh High School, [2007] 1 A.C. 100.
52
Aruna Roy v. Union of India, (2002) 7 SCC 368.
53
St. Stephen's College v. University of Delhi, (1992) 1 SCC 558.
54
Art. 51(A), The Constitution of India.
55
Nar Singh Pal v. Union of India, (2000) 3 SCC 588.
56
V.N. Shukla, Constitution of India, 670 (14th ed., 2022).
57
Ibid, at 8.
58
Commissioner, Hindu Religious Endowmnets, Madras v. Sri Lakshmindra Thirtha Swamior
of Shirur Mutt, 1954 SCR 1005.
59
Haji Ali Dargah Trust v. Noorjehan Safia Niaz, (2016) 16 SCC 788.
60
Art. 25(1), The Constitution of India.
61
Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.
62
Commissioner of Police v. Acharya J. Avadhuta, AIR 1990 Cal 104.
63
Ibid, at 8.
64
Art. 26, The Constitution of India.
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65
The Author v. State of France, [2012] HCR 59.
66
Art. 18, International Covenant on Civil and Political Rights, 1966.
67
Art. 18, United Nations Declaration on Human Rights, 1948.
68
Para 19, Moot Proposition.
69
Ibid, at 69.
70
Ibid, at 67.
71
Ibid, at 1.
72
Ibid, at 8.
73
Para 28, Moot Proposition.
74
Art. 1, The Constitution of India.
75
S.R Bommai v. Union of India, (1994) 3 SCC 1.
76
Art. 3A, The 106th Constitutional Amendment Act.
77
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available
at : https://www.refworld.org/docid/3ae6b3930 .html%20[accessed%2029%20December%
202022] last seen on 08/01/2023.
78
U.N General Assembly, Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the UN Charter, Res. 2625,
Sess. 25, U.N. Document, A/RES/2625(XXV) (24/10/1970) available at http://www.un-
documents.net/a25r2625.htm last seen on 10/01/2023.
79
Christopher Rudolph, Sovereignty and Territorial Borders in a Global Age, Volume no. 7|
International Studies Review-JSTOR| 1, 9| (2005) available at
https://www.jstor.org/stable/3699618 last seen on 13/01/2023.
80
Kevin Ryan, Rights, Intervention, and Self-Determination, Volume no. 20 | Denver Journal
of International Law & Policy | 8, 9 | (1991) available at
https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1795&context=djilp last seen on
13/01/2023.
81
Ibid, at 78.
82
L. Oppenheim, R.Y. Jennings, Arthur Watts, Oppenheim's International Law, Volume No. 1
| 420, 428 | (2008| available at
https://opil.ouplaw.com/display/10.1093/law/9780582302457.001.0001/law-9780582302457
last seen on 15/01/2023.
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83
Nicaragua v. United States of America, (1986) ICJ Rep 14.
84
United Kingdom v. Albania, (1949) ICJ Rep 244.
85
U.N. General Assembly, Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States and the Protection of Their Independence and Sovereignty, Res. 20/2131,
Sess. 20, U.N. Document, (21/12/1965), A/RES/20/2131, available at
https://legal.un.org/avl/ha/ga_2131-xx/ga_2131-xx.html last seen on 21/01/2023.
86
Ibid, at 73.
87
Neil MacFarlane and Natalie Sabanadze, Sovereignty and self-determination : Where are
we?, Volume no. 68| Sage International Journal-JSTOR| 609. 616 available at
https://www.jstor.org/stable/24709362 last seen on 21/012023.
88
Re Secession of Quebec, [1998] 2 SCR 217.
89
Ibid, at 88.
90
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
91
Balraj Puri, Sovereignty, Territorial Integrity and Right of Self-Determination, Volume No.
36 | Economic & Political Weekly | 200, 215 | (2001| available at
https://www.epw.in/journal/2001/04 /commentary/sovereignty- territorial-integrity-and-right
-self- determination.html last seen on 17/01/2023.
92
Gian Kaur v. State of Punjab, (1996) 2 SCC 648.
93
Common Cause v. Union of India, (2018) 5 SCC 1.
94
Ibid, at 87.
95
Ibid, at 88.
96
Ibid, at 90.
97
Art. 356, The Constitution of India.
98
Harish Chandra Singh Rawat v. Union of India, (2016) 16 SCC 744.
99
Samsher Singh v. State of Punjab, (1974) 2 SCC 831.
100
State of Rajasthan v. Union of India, (1977) 3 SCC 592.
101 st
DD Basu, A Commentary on the Constitution of India, 536 (1 ed., 1950).
102
Sunder Lal Patwa v. Union of India, AIR 1993 MP 214, 233-34.
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103
Sardari Lal v. Union of India, (1971) 1 SCC 411.
104
Nishi Kant Jha v. State of Bihar, (1972) 2 SCC 486.
105
Art. 355, The Constitution of India.
106
Rameshwar Prasad v. Union of India, (2006) 2 SCC 1.
107
Para 35, Moot Proposition.
108
Extra Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 536.
109
Kuldip Nayar v. Union of India, (2006) 7 SCC 1.
110
Ibid, at 106.
111
Ministry of Home Affairs, Government of India, Sarkaria Commission Report 1983-1988,
available at http://interstatecouncil.nic.in/ report-of-the-sarkaria-commission, last seen on
28/12/2022.
112
Purnima Yadav v. Union of India, (2005) 7 SCC 148.
113
Supra 1.
114
HS Jain v. Union of India, (1997) 1 UPLBEC 594.
115
Supra 4.
116
I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
117
Aam Aadmi Party v. Union of India, (2014) 16 SCC 396.
118
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1.
119
Supra 6.
120
Ministry of Home Affairs, Government of India, Punchhi Commission Report 2007-2010,
available at http://interstatecouncil .nic.in/punchhi-commission, last seen on 28/12/2022.
121
Ibid, at 79.
122
Ibid, at 79.
123
Ibid, at 102.
124
Ibid, at 77.
125
Ibid, at 151.
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126
Ibid, at 56.
127
Shiw Kumar Prasad Singh v. Union of India, (2005) 7 SCC 147.
128
Ibid, at 194.
129
Ibid, at 78.
130
Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33.
131
Ibid, at 119.
132
Ibid, at 119.
133
S. Srikishan v. State of Andhra Pradesh, AIR 1957 AP 734.
134
Ibid, at 79.
135
Government of NCT of Delhi v. Union of India, (2020) 12 SCC 259.
136
Andhra Pradesh State Council of Higher Education v. Union of India, (2016) 6 SCC 635.
137
Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184.
138
Art. 3, The Constitution of India.
139
Art. 4, The Constitution of India.
140
Ibid, at 11.
141
Ibid, at 78.
142
Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85.
143
Prashant Kumar v. State of Gujarat, (2005) 2 SCC 409.
144
Para 24, Moot Proposition.
145
Ibid, at 119.
146
Art. 1, International Covenant on Civil and Political Rights, 1966.
147
Ar. 1(1), International Covenant on Civil and Political Rights, 1966.
148
Art. 18, International Covenant on Civil and Political Rights, 1966.
149
L.C. Buchheit, Secession : The Legitimacy of Self-determination, 1978; A. Heraclides,
Secession, Self-determination and Non-intervention : In Quest of a Normative Symbiosis,
Journal of International Affairs 435 (1992), https://www.worldcat.org/title/3380012 last seen
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on 24/01/2023.
150
Helen Quane, The United Nations and the Evolving Right to Self-Determination, Volume
no. 47| The International and Comparative Law Quarterly-JSTOR| 537, 541 (1998) available
https://www.jstor.org/stable/761423 last seen on 24/01/2023.
151
Dietrich Mursuiek, ‘The Issue of a Right of Secession-Reconsidered’, Modern Law of Self-
determination 23 (1993), https://www.etd.ceu.edu last seen on 25/01/2023.
152
Art. 25, International Covenant on Civil and Political Rights, 1966.
153
Para 23, Moot Proposition.
154
Ibid, at 78.
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