3RD MAHARISHI MARKANDESHWAR NATIONAL MOOT COURT COMPETITION, 2019

TC-05

3RD MAHARISHI MARKANDESHWAR NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE SUPREME COURT OF KOSHINDA

IN THE MATTER OF

ARTICLE 14,21, 32, 370 OF THE CONSTITUTION OF KOSHINDA,1950

WRIT PETITION NO. ______/20__

CITIZEN RIGHTS V. UNION OF KOSHINDA

CLUBBED WITH

NOZANGABAD REFUGEES V. UNION OF KOSHINDA

ACTION COMMITTEE CELL

CLUBBED WITH

KARISMA RAJ MEHTA V. UNION OF KOSHINDA

AND SANTOSH KASHYAP

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THIS
HON’BLE SUPREME COURT OF KOSHINDA.

UNDER ARTICLE 32 OF THE CONSTITUTION OF KOSHINDA

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

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

List Of Abbreviations ............................................................................................................... iv

Index of Authorities ................................................................................................................... v

Cases....................................................................................................................................... v

Other Authorities ................................................................................................................ viii

Constitutional Provisions ................................................................................................... viii

Websites ............................................................................................................................. viii

Statement of Jurisdiction........................................................................................................... ix

Synopsis Of Facts ...................................................................................................................... x

Issues Raised ............................................................................................................................. xi

Whether Petitions Are Maintainable And Merits Of The Case Can Be Heard By The Court.
............................................................................................................................................... xi

Whether Presidential Order Of 1954 Is Unconstitutional. .................................................... xi

Whether Article 35A is Unconstitutional .............................................................................. xi

Summary of Arguments ...........................................................................................................xii

Arguments Advanced................................................................................................................. 1

[I] Whether The Petitions Are Maintainable And Merits Of The Case Can Be Heard By
The Court................................................................................................................................ 1

[I.A] The Petitioner in the present matter has the Locus Standi to challenge Article 35A.1

[I.B] There is violation of Fundamental Rights enshrined in Part III of the Constitution.. 2

[I.C] The Judiciary is empowered to hear such Petitions ................................................... 3

[I.D] Exhaustion of Alternate Remedy is not a bar. ........................................................... 3

[II] Whether Presidential Order Of 1954 Is Unconstitutional. .............................................. 6

[II.A] Power to amend the Constitution vests with the Parliament. ................................... 6

[II.B] Introduction of a Permanent Article by virtue of Temporary Provision. ................. 8

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[III] Whether Article 35A is Unconstitutional ..................................................................... 11

[III.A] It is discriminatory in nature as per to Article 14. ................................................ 12

[III.B] Infringes the basic rights guaranteed to a person under Article 21 of Constitution
of Koshinda....................................................................................................................... 16

[III.C] Restraints right of access to the Supreme Court under Article 32 and 21. ........... 18

Prayer ....................................................................................................................................... 20

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LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

& And

AIR All India Report

Art. Article

v. vs

Bom Bombay

Del Delhi

Ibid With reference to above

J. Justice

Ltd. Limited

No. Number

Ors. Others

Anr. Another

UDHR Universal Declaration of Human Rights

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Report

Supra In reference to

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INDEX OF AUTHORITIES

CASES

1. Anwar Hossain Chowdhary v. Bangladesh, 41 DLR (1989) App. Div. 165. .............. 11
2. Arunchala Nadar v. State of Madras, AIR (1959) SC 300. ......................................... 12
3. Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1. .......................................... 15
4. Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 3 ................................................ 2
5. Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 3. ............................................. 11
6. B. Manmad Reddy v. Chandra Prakash Reddy, AIR (2010) SC 1001. ...................... 14
7. B. Singh v Union of India, (2004) 3 SCC 363. .............................................................. 1
8. Baburam Prakash Chandra Maheshwari v Antarim Zila Parishad, AIR (1969) SC 556.
........................................................................................................................................ 3
9. Banglore Water Supply and Sewage Board v. Kantha Chandra, AIR (1989) Kant 1 ... 1
10. Bennett Coleman v. Union of India, AIR (1973) SC 106 ............................................ 10
11. Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni, AIR (1983) SC
109................................................................................................................................ 16
12. Bodhisattwa v. Subhra Chakraborty, AIR (1996) SC 922. ............................................ 2
13. Budhan v. State of Bihar, AIR (1955) SC 191 ............................................................ 12
14. Chandra Bhavan v. State of Mysore, (1970) 2 SCR 600 ............................................. 17
15. Chandra Bhavan v. State of Mysore, (1970) 2 SCR 600. .............................................. 2
16. Chintman Rao v. State of Madhya Pradesh, (1959) SCR 759. .................................... 12
17. Common Cause, A Registered Society v. Union of India, AIR (1999) SC 3020. ....... 18
18. D.S. Nakara and Ors. v Union of India, AIR (1983) SC 130. ....................................... 4
19. D.S. Nakara v. Union of India, AIR (1983) SC 130. ..................................................... 3
20. Daryao v State of Uttar Pradesh, AIR (1961) SC1457 .................................................. 3
21. DK Yadav v. JMA Industries, (1993) 3 SCC 259. ...................................................... 16
22. Dr. Hariraj Chulani v. Bar Council of Maharashtra and Goa, (1996) 3 SCC 345 ....... 16
23. DTC v. DTC Mazdoor Congress, AIR (1991) SC 101. ............................................... 17
24. Guruvayur Devaswom Managing Committee v. C.K. Rajan, AIR (2004) SC 561. ...... 3
25. Harbansal Sahnia v Indian Oil Corporation Ltd., AIR (2003) SC 2120. ....................... 4
26. In Re Sant Ram, AIR (1960) SC 932. .......................................................................... 16
27. In Re Special Reference No. 1 of 1964.......................................................................... 4
28. Indira Gandhi v. Raj Narain, AIR (1975) SC 2299; .................................................... 10

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29. Indira Nehru Gandhi v. Raj Narain, (1975) 3 SCR 854................................................. 4

30. Indra Sawhney v Union of India, (2000) 1 SCC 168 ................................................... 11
31. Jagannath Prasad v. State of Uttar Prasad, AIR (1961) SC 1245. ............................... 12
32. Janta Dal v. H.S. Chaudhary, (1992) 4 SCC 305. .......................................................... 3
33. John Vallamattom v. Union of India, (2003) 6 SCC 611. ........................................... 10
34. K.K. Kouchunni v State of Madras, AIR (1959) SC 725. ............................................. 4
35. Kallakkurichi Taluk Retired Officials Association v. State of Tamil Nadu, (2013) 2
SCC 772 ....................................................................................................................... 13
36. Kesavananda Bharati v State of Kerala, AIR (1973) SC 1461 ...................................... 4
37. Keshavananda Bharati Sripadagalvaru v. State of Kerala and another, AIR (1973) SC
1461................................................................................................................................ 6
38. Kharak Singh v State of Uttar Pradesh, AIR (1963) SC 129 ......................................... 3
39. Kharak Singh v State of Uttar Pradesh, AIR (1963) SC 1295 ....................................... 4
40. Kihoto Hollohan v. Zachillhu, AIR (1993) SC 412. ...................................................... 6
41. L. Chandra Kumar v Union of India And Others, (1997) 3 SCC 261. .......................... 4
42. L. Chandra Kumar v. Union of India, AIR (1997) SC 1125. ...................................... 17
43. Laxmi Khandsari v. State of Uttar Pradesh, AIR (1981) SC 873 ................................ 14
44. Mahindra Electric Mobility Limited and Others v. Competitive Commission of India
and Others, (2019) SCC Del 8032. ................................................................................ 6
45. Man Singh v. State of Punjab, (1985) 4 SCC 146 ....................................................... 10
46. Maneka Gandhi v. Union of India, AIR (1978) SC 597 .............................................. 10
47. Maneka Gandhi v. Union of India, AIR (1978) SC 597. ............................................. 16
48. Manohar Lal Sharma v. Principle Secretary, (2014) 2 SCC 532. ................................ 18
49. MG Badappanavar v State of Karnataka, AIR (2001) SC 260. ..................................... 2
50. Minerva Mills Ltd. V Union of India, (1981) ISCR 206 ............................................... 4
51. Mohammed Ishaq v S. Kazam Pasha, (2010) 1 SCC Cri. 721. ..................................... 4
52. Municipal Council, Ratlam v. Vardichand, AIR (1980) SC 1622. ................................ 1
53. Natural Resource Allocations, In re Special reference No. 1 of 2012, (2012) 10 SCC 1
...................................................................................................................................... 11
54. Olga Tellis v. Bombay Municipal corporation, AIR (1986) SC 180. .......................... 16
55. P Rathinam v. Union of India, AIR (1994) SC 1844. .................................................. 15
56. People’s Union for Democratic Rights v. Union of India, AIR (1986) SC 1473. ......... 3
57. Prem Chand Garg v Excise Commissioner, AIR (1963) SC 996. ................................. 3
58. Prem Chand Garg v. Excise Commissioner of UP, AIR (1963) SC 996. ...................... 2

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59. Prem Chand Garg v. Excise Commissioner, AIR (1963) SC 996. .............................. 17
60. Puranlal v. President of India, AIR (1961) SC 1519. .................................................... 5
61. R.C. Poudyal v. Union of India, AIR (1993) SC 1804. ................................................. 5
62. Raj Pal Sharma v. State of Haryana, (1985) Supp SCC 72. ........................................ 13
63. RD Upadhyay v. State of Andhra Pradesh, (1996) 3 SCC 422. .................................. 17
64. Romesh Thappar v State of Madras, AIR (1950) SC 124. ............................................ 3
65. Romesh Thappar v The State of Madras, AIR (1950) SC 124. ..................................... 4
66. Romesh Thappar v. State of Madras, AIR (1950) SC 124. ......................................... 17
67. Roop Chand Adlakha v. Delhi Development Authority, AIR (1989) SC 307. ........... 13
68. Rudul Sah vs. State of Bihar, AIR 1983 SC 1086. ...................................................... 17
69. Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248. ................................ 10
70. S.Seshachalam v. Bar Council of Tamil Nadu,(2014) 16 SCC 72. ............................. 14
71. Sachidananda Pandey v. State of West Bengal, AIR (1987) SC 109. ........................... 3
72. Sant Singh v. State of J&K, AIR (1959) J&K 35 .......................................................... 5
73. Sebastian M. Hongrary v. Union of India, AIR (1984) SC 1022 .................................. 5
74. Secretary, State of Karnataka v. Umadevi, AIR (2006) SC 1806................................ 16
75. SP Gupta v. Union of India, AIR (1982) SC 149 .......................................................... 1
76. State of Bombay v United Motors Ltd., AIR (1953) SC 252. ....................................... 4
77. State of Bombay v. Balsara, AIR (1951) SC 318. ....................................................... 12
78. State of Kerela v. NM Thomas, (1976) 2 SCC 310. .................................................... 11
79. State of Madras v. V.G. Row, AIR (1952) SC 196. .................................................... 17
80. State of Maharashtra v. Chandrabhan, AIR (1983) SC 180. ....................................... 17
81. State of Tamil Nadu v. K. Shyam Sunder, AIR (2011) SC 3470. ............................... 11
82. State of Uttar Pradesh v Mohammad Nooh, AIR (1958) SC 86. ................................... 4
83. State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 ................................... 13
84. Subramanian Swamy v. CBI, (2014) 8 SCC 682......................................................... 13
85. Sunita Bugga v. Director of Education, 2010 (5) SLR 535 (Del-DB). ........................ 12
86. Supreme Court Advocates-on-Record Association and Another v. Union of India,
(2016) 5 SCC 1. ............................................................................................................. 7
87. Tilokchand Motichand v H.B. Munshi, AIR (1970) SC 898. ........................................ 3
88. Transport & Dock Workers Union v. Mumbai Port Trust, (2011) 2 SCC 575............ 12
89. Union of India v. NS Rathnam and Sons, AIR (2016) SC 1273. ................................ 14
90. Unnikrishnan JP v. State of Andhra Pradesh, AIR (1993) SC 2178...................... 15, 16

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OTHER AUTHORITIES

1. AG Noorani, A Constitutional History of Jammu & Kashmir’ ..................................... 7

2. BL Wadehra, Public Interest Litigation ,4th Edition 2014. ............................................ 1
3. Jagmohan, My Frozen Turbulence in Kashmir, (2006, 7th edition)............................ 13
4. Mahesh Vyas, Unemployment in Jammu and Kashmir, Centre for Monitoring Indian
Economy, Sep 2019. .................................................................................................... 14
5. MP Jain, Indian Constitutional Law, 8th Edition 2019 .................................................. 6
6. Notification No. I-L/84, dated 20th April, 1927 ........................................................... 12
7. P Ramanatha Aiyar, The Major Law Lexicon, Lexis Nexis India. ................................ 5
8. Parry, Clive, Op. Cit., P 842. ....................................................................................... 12
9. State Notification No. 1-/L, dated 27th June, 1932. ..................................................... 12
10. VN Shukla, Constitution of India, 13th Edition 2017. ................................................... 6

CONSTITUTIONAL PROVISIONS

1. Constitution (Twenty-fourth Amendment) Act, 1971 ................................................... 6

2. Constitution of Koshinda, Article 14. .......................................................................... 11
3. Constitution of Koshinda, Article 21. ............................................................................ 2
4. Constitution of Koshinda, Article 368. .......................................................................... 5
5. Constitution of Koshinda, Article 370. .......................................................................... 5

WEBSITES

1. SCC Online
2. Manupatra
3. Hein Online
4. Lexis Nexis

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STATEMENT OF JURISDICTION

The petitioner humbly submits that this Hon’ble Court has jurisdiction to hear this petition under
the Article 32 of the Constitution of Koshinda, 1950.

“32. Remedies for enforcement of 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 clause (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.”

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SYNOPSIS OF FACTS

INTRODUCTION:

Prior to 1947, the State of K & L was a princely State under the British Paramountcy. After the
Independence of the Union of Koshinda, the State of K & L was formed as a part of Koshinda
under the Instrument of Accession signed by Maharaja Harjinder Singh. The State of K & L is
now one of the twenty-nine States of the Union of Koshinda. Koshinda has adopted the
principle of Federalism to actualize and uphold the values of National unity, Democracy,
Cultural diversity, Regional autonomy and under the same principles the State of K & L has
been conferred with a special status under the constitutional scheme of the union of Koshinda.

PARTIES TO THE SUIT:

(a) Citizen Rights & Union of Koshinda.

(b) Nozangabad Refugees Action Committee Cell & Union of Koshinda.

(c) Karima Raj Mehta and Santosh Kashyap & Union of Koshinda.

CAUSE OF ACTION:

1. The First Petition was filed by a non-governmental organisation called Citizen Rights in
2014. Their claim focuses on the Presidential order of 1954 which according to them, went
against the Article 368 (1) as it was beyond the jurisdiction of the President.

2. The Second Petition was filed by the protagonists of Nozangabad Refugees Action
Committee Cell in the year 2015 contending that even though they have been living in the
State of K & L for 40 years and still have not been given the basic fundamental rights.

3. The Third Petition was filed by Karisma Raj Mehta, lawyer and former member of
National Commission of Women and Santosh Kashyap, a doctor demanding that under the
garb of Article 370 and Article 35A, men and women have been subject to differential
treatment.

CURRENT STATUS:

All the three petitions were filed in the Supreme Court of Koshinda and now they have been
clubbed by the Apex Court. The petitions are now posted for hearing before the Supreme Court
of Koshinda on March 14, 2019.

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ISSUES RAISED

~ISSUE 1~

WHETHER PETITIONS ARE MAINTAINABLE AND MERITS OF THE CASE CAN BE HEARD BY

THE COURT.

~ISSUE 2~

WHETHER PRESIDENTIAL ORDER OF 1954 IS UNCONSTITUTIONAL.

~ISSUE 3~

WHETHER ARTICLE 35A IS UNCONSTITUTIONAL

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SUMMARY OF ARGUMENTS

I. WHETHER THE PETITIONS ARE MAINTAINABLE AND MERITS OF THE CASE CAN BE

HEARD BY THE COURT.

It is humbly contended before this Hon’ble Court that the petitions are maintainable
and the court has the power to hear the merits of the case. This contention is made in
light that the petitioner in the present matter has the locus standi to challenge Article
35A as there is violation of fundamental rights enshrined in Part III of the Constitution
of Koshinda and the judiciary is empowered to hear such petitions and exhaustion of
alternate remedy is not bar. Therefore, it is humbly submitted to the Hon’ble Court that
the writ petition is maintainable.

II. WHETHER PRESIDENTIAL ORDER OF 1954 IS CONSTITUTIONAL.

It is humbly contended before this Hon’ble Court that the Presidential Order of 1954
granting special status to the State of K&L is unconstitutional. It is contended that the
sole power of amending the Constitution vests in the Parliament and by virtue of
temporary provision, a new article of permanent nature cannot be introduced in the
Constitution of Koshinda. Therefore, it is humbly submitted to the Hon’ble Court that
the Presidential Order of 1954 is unconstitutional.

III. WHETHER ARTICLE 35A IS UNCONSTITUTIONAL.

It is humbly contended before this Hon’ble Court that Article 35A is unconstitutional
on the ground that it infringes and violates basic structure of the Constitution of
Koshinda. Therefore, it is humbly submitted to the Hon’ble Court that Article 35A is
unconstitutional.

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ARGUMENTS ADVANCED

[I] WHETHER THE PETITIONS ARE MAINTAINABLE AND MERITS OF THE CASE CAN BE
HEARD BY THE COURT.

It is humbly contended before this Hon’ble Court that the petitions are maintainable and
the court has the power to hear the merits of the case. This contention is sought to be proved
in a four-fold manner: [I.A] The petitioner in the present matter has the locus standi to
challenge Article 35A; [I.B] There is violation of fundamental rights enshrined in Part III
of the Constitution of Koshinda; [I.C] The Judiciary is empowered to hear such petitions;
[I.D] Exhaustion of alternate remedy is not a bar.

[I.A] THE PETITIONER IN THE PRESENT MATTER HAS THE LOCUS STANDI TO CHALLENGE
ARTICLE 35A.

1. Where a legal wrong or legal injury is caused to a person by reason of violation of any
constitutional or legal right1 any member of public can maintain an application seeking
judicial redress for the legal wrong or legal injury caused to such person or determinate
class of persons.2 The gravity of justice from the traditional individualism to the
community orientation is a constitutional mandate enshrined in the preamble.3 The
Supreme Court can
2. evolve new remedies and strategies to enforce the fundamental rights.4 If no one will
have standing to challenge cases of public wrong or public injury, then there will be no
rule of law.5A person acting bona fide and having sufficient interest in the proceeding
of public interest litigation, alone has a locus standi and can approach the court to wipe
out violation of fundamental rights and genuine infraction of statutory provisions.6
3. In the present matter, Citizen Rights, being an NGO works for rights of citizens and
seeks to prevent infringement of rights of the citizens, similarly Nozangabaad refugees

1
Banglore Water Supply and Sewage Board v. Kantha Chandra, AIR (1989) Kant 1.
2
SP Gupta v. Union of India, AIR (1982) SC 149.
3
Municipal Council, Ratlam v. Vardichand, AIR (1980) SC 1622.
4
BL Wadehra, Public Interest Litigation ,4th Edition 2014.
5
Ibid, 2.
6
B. Singh v Union of India, (2004) 3 SCC 363.

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Committee Cell works for the rights of the refugees residing in Langoshia for decades
and Karishma Raj Mehta and Santosh Kashyap, working for National Commission for
Women, are fighting for rights of women which is in light of public interest, therefore
the petitioners have the locus standi as it involves the interest of masses and general
public.
4. It is, therefore, humbly submitted before this Hon’ble Court that the petitioners have
the locus standi as the petitioners have the legal standing in the Court of Law. The
Petitioner, approaching the Court for the interest of the masses and general public, it is
qualified under the exception to the Doctrine of locus standi.

[I.B] THERE IS VIOLATION OF FUNDAMENTAL RIGHTS ENSHRINED IN PART III OF THE

CONSTITUTION.

5. Article 32 of Constitution of Koshinda provides a vital safeguard for the protection of

fundamental rights of the citizens of Koshinda and judiciary has thus been constituted
to foster and protect these fundamental rights.7 There has been violation of fundamental
rights on two grounds [I.B.i] Violation of Right of access to the Supreme Court8 [I.B.2]
Violation of Right of equality.9

[I.B.i] Violation of Right of Access to the Supreme Court.

6. Article 21 of Constitution of Koshinda guarantees Right to life and liberty10 which also
includes Judicial Review as one of the basic fundamental rights,11 which has been
violated in the current scenario by the existence of Article 35A.

[I.B.ii] Right of Equality.

7. The Doctrine of Equality before law is necessary corollary of Rule of Law which
pervades the Koshindian Constitution.12 Since the restriction of not being heard for
Judicial Review under Article 35A being unreasonable and arbitrary makes it violative

7
Prem Chand Garg v. Excise Commissioner of UP, AIR (1963) SC 996.
8
Bodhisattwa v. Subhra Chakraborty, AIR (1996) SC 922.
9
MG Badappanavar v State of Karnataka, AIR (2001) SC 260.
10
Constitution of Koshinda, Article 21.
11
Chandra Bhavan v. State of Mysore, (1970) 2 SCR 600.
12
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 3.

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of Fundamental Right given under Constitution of Koshinda, 1950. Also, it creates

unreasonable and arbitrary classification between genders, which again is violative of
fundamental right if equality.

[I.C] THE JUDICIARY IS EMPOWERED TO HEAR SUCH PETITIONS

8. Justice delivery system has acquired a big significance in modern legal jurisprudence
practice.13 It represents sustained efforts on the part of judiciary to provide access to
justice for the deprived and vulnerable sections of the humanity.14 Under Article 32,
the Supreme Court has original jurisdiction over all cases concerning fundamental
freedoms enshrined under Part III of the Constitution.
9. When Fundamental Rights are at stake, the Court may “not to shrug its shoulders” have
the basic duty to examine whether the relevant considerations have been borne in
mind.15 There is an increasing willingness of the judiciary to render remedial justice to
the weaker sections.16 The scope and nature of Writ Petitions has been decisively laid
down by the Supreme Court as a challenge and an opportunity to make basic human
rights meaningful to the deprived and vulnerable sections of the community.17
10. It is therefore humbly submitted that the judiciary must accept the present petitions as
the issue involves violation of fundamental rights falls.

[I.D] EXHAUSTION OF ALTERNATE REMEDY IS NOT A BAR.

11. It is humbly contended that there exists no alternate remedy. Arguendo, the mere
presence of alternate remedy is not a bar for the Courts to allow the present petition.
Once the violation of fundamental right is established, it is not only the right and power
but also the duty and obligation of the Supreme Court to see that the Petitioner’s
fundamental right is protected.18
12. The remedy provided by Article 32 is a fundamental right and not merely a
discretionary power of the Court.19 This right is absolute and may not be impaired on

13
Janta Dal v. H.S. Chaudhary, (1992) 4 SCC 305.
14
Guruvayur Devaswom Managing Committee v. C.K. Rajan, AIR (2004) SC 561.
15
Sachidananda Pandey v. State of West Bengal, AIR (1987) SC 109.
16
D.S. Nakara v. Union of India, AIR (1983) SC 130.
17
People’s Union for Democratic Rights v. Union of India, AIR (1986) SC 1473.
18
Baburam Prakash Chandra Maheshwari v Antarim Zila Parishad, AIR (1969) SC 556.
19
Daryao v State of Uttar Pradesh, AIR (1961) SC1457; Tilokchand Motichand v H.B. Munshi, AIR (1970) SC
898.

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any ground.20 Consequently, it is submitted that a refusal to entertain the instant petition
would be inconsistent with the aforesaid obligation.21 Whenever classification is held
to be impermissible and the measure can be retained by removing the unconstitutional
portion of classification, by striking down words of limitation, the Court can strike
down the words of limitation in an enactment.22
13. Also, according to the Constitutional scheme the Supreme Court and the High Courts
are the sole repositories of the power of judicial review23 and that power, being
inclusive of the power to pronounce upon the validity' of statutes has only been
entrusted to the constitutional courts.24
14. It is contended that there exists no alternative remedy in the present matter. It is only
under the jurisdiction of this Hon’ble Court that the present petition can be heard. Also,
the present petition is in the light of interest of Refugees and Fundamental Right
violation of the citizens of Koshinda, in favour of whom, only this Hon’ble Apex Court
can take decisions and therefore, the Petitioner should be allowed to bring forth the
petition under Article 32 of the Constitution.
15. Assuming but not admitting the presence of an alternative remedy, it is contended that
mere existence of an adequate alternative legal remedy cannot be per se be a good and
sufficient ground for throwing out a petition under Article 32,25 if the existence of a
fundamental right26 and a breach, actual or threatened, of such right and is alleged is
prima facie established on the petition.27
16. Moreover, this Hon’ble Court has on multiple occasions expressly rejected an argument
that called for exhaustion of local remedies.28 Article 32(4) specifically provides that
this right may not be suspended except by a constitutional provision. This self-imposed

20
Prem Chand Garg v Excise Commissioner, AIR (1963) SC 996.
21
Kharak Singh v State of Uttar Pradesh, AIR (1963) SC 129; Romesh Thappar v State of Madras, AIR (1950)
SC 124.
22
D.S. Nakara and Ors. v Union of India, AIR (1983) SC 130.
23
L. Chandra Kumar v Union of India And Others, (1997) 3 SCC 261.
24
Kesavananda Bharati v State of Kerala, AIR (1973) SC 1461; In Re Special Reference No. 1 of 1964, (1965)
ISCR 413; Indira Nehru Gandhi v. Raj Narain, (1975) 3 SCR 854; Minerva Mills Ltd. V Union of India, (1981)
ISCR 206.
25
State of Bombay v United Motors Ltd., AIR (1953) SC 252.
26
Harbansal Sahnia v Indian Oil Corporation Ltd., AIR (2003) SC 2120.
27
K.K. Kouchunni v State of Madras, AIR (1959) SC 725.
28
Kharak Singh v State of Uttar Pradesh, AIR (1963) SC 1295; Romesh Thappar v The State of Madras, AIR
(1950) SC 124.

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restraint is merely a rule of convenience and discretion29 and does not oust the
jurisdiction of this Court under Article 32.30

Therefore, it is humbly submitted to the Hon’ble Court that the Petitions are maintainable
and merits of the case can be heard by the court.

29
State of Uttar Pradesh v Mohammad Nooh, AIR (1958) SC 86.
30
Mohammed Ishaq v S. Kazam Pasha, (2010) 1 SCC Cri. 721.

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[II] WHETHER PRESIDENTIAL ORDER OF 1954 IS UNCONSTITUTIONAL.

It is humbly contended before this Hon’ble Court that the Presidential Order of 1954
granting special status to the State of K&L is unconstitutional. This contention is sought to
be proved in a two-fold manner: [II.A] The sole power of amending the Constitution vests
in the Parliament; [II.B] By virtue of temporary provision, a new article of permanent
nature cannot be introduced in the Constitution of Koshinda.

[II.A] POWER TO AMEND THE CONSTITUTION VESTS WITH THE PARLIAMENT.

17. It is humbly contended before this Hon’ble Court that an order passed by the President
of Koshinda under Article 37031 is beyond the jurisdiction of the President, who is the
executive head of Koshinda. Article 370 of the Constitution of Koshinda empowers the
President to modify the provisions of the Constitution by way of an Order to extend it
to the State of K&L. The power to ‘modify’ includes the power to enlarge or add to an
existing provision32 or to abrogate it33 and that the power to amend is not confined to
minor alterations only.34
18. However, Article 36835 of the Koshindian Constitution States the power of the
Parliament to amend the Constitution and procedure therefor. It lays down the
procedure in which an amendment can be made to the Constitution. The Article has a
non obstante clause making it compulsory to abide by the procedure laid down under
it. The non obstante clause intends to preclude any interpretation contrary to certain
declared objects or purposes.36 In the instant case, Article 368(1)37 explicitly says that
the provision overrides38 anything Stated in the Constitution, making it mandatory to
comply with the procedure prescribed by the Article. The scope of the non obstante
clause in Article 37039 cannot extend beyond the scope of the legislative power of the
Parliament under Article 368.40

31
Constitution of Koshinda, Article 370.
32
Sant Singh v. State of J&K, AIR (1959) J&K 35.
33
Puranlal v. President of India, AIR (1961) SC 1519.
34
Ibid.
35
Constitution of Koshinda, Article 368.
36
P Ramanatha Aiyar, The Major Law Lexicon, Lexis Nexis India.
37
Constitution of Koshinda, Article 368.
38
Sebastian M. Hongrary v. Union of India, AIR (1984) SC 1022.
39
Constitution of Koshinda, Article 370.
40
R.C. Poudyal v. Union of India, AIR (1993) SC 1804.

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19. Under Article 36841, amendments can be made to the Constitution in two methods-
informal method and formal method.42 Informal methods are judicial interpretation and
conventions whereas formal method is the constituent process.43 Here, the
implementation of the Constitutional (Application to K&L) Order, 1954 through
Article 370(1) falls under neither of the aforesaid categories, clearly exceeding the
amending power under Article 36844.
20. With the 24th Constitutional Amendment, 197145, the title of Article 368 is changed to
“Power of Parliament to amend the Constitution and procedure therefor”46. It was also
held in the landmark judgement of Keshavananda Bharati v. State of Kerala47 that by
virtue of Article 368, Parliament has the power to amend any or all provisions of the
Constitution.48 Article 368 is subject to only two limitations, one being a substantial
limitation in that the basic structure cannot be altered and another being a procedural
limitation which requires a special majority.49 However, the introduction of Presidential
Order, 1954 disregarded the substantial limitation, which would go beyond the
amending power.50 The due process of law which is enshrined in Article 368 i.e., the
procedure laid down in the article was not followed.51
21. Article 368 clearly says that an amendment to the Constitution can be made only with
the introduction of the Bill in either houses of Parliament.52 This is the sole legislative
competence of the Parliament and cannot be delegated as it is the essential or primary
power of the legislation. The essential power of the legislature, namely, laying down
legislative policy, cannot be delegated.53 However, the President, by virtue of Article
370, cannot issue orders amending the Constitution of Koshinda as the essential
function54 of the legislature is to make laws, which cannot be delegated to the executive.

41
Constitution of Koshinda, Article 368.
42
MP Jain, Indian Constitutional Law, 8th Edition 2019.
43
Ibid.
44
Constitution of Koshinda, Article 368.
45
Constitution (Twenty-fourth Amendment) Act, 1971.
46
Substituted by the Constitution (Twenty-fourth Amendment) Act, 1971, for “Procedure for amendment of the
Constitution”.
47
Keshavananda Bharati Sripadagalvaru v. State of Kerala and another, AIR (1973) SC 1461.
48
VN Shukla, Constitution of India, 13th Edition 2017.
49
Kihoto Hollohan v. Zachillhu, AIR (1993) SC 412.
50
Ibid.
51
Ibid.
52
Supra, 49.
53
MP Jain, Indian Constitutional Law, 8th Edition 2019.
54
Mahindra Electric Mobility Limited and Others v. Competitive Commission of India and Others, (2019) SCC
Del 8032.

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Although there is no strict demarcation of powers in Koshinda55, Separation of powers

is recognised as part and parcel of the basic structure doctrine.56
22. Moreover, under Article 370, the power of the President is merely confined to extending
the Koshindian Constitution provisions to the State of K&L by not amending the
Constitution of State of K&L.57 However, in the instant case, by way of the Presidential
Order of 1954, the President of Koshinda instead amended the Constitution of Koshinda
by adding Article 35A to Part III of the Constitution of Koshinda. Here, the President’s
power under Article 370 is strictly restricted to extend the already existing provisions
of the Constitution to the State of K&L. Article 370 was anyways eroded with the
introduction of various orders through the article compromising the autonomy of the
State.
23. Therefore, it is humbly submitted to this Hon’ble Court that the sole power to amend
the Constitution vests in the Parliament, whose essential power is to legislate laws. Such
power cannot be delegated to the executive as it would go beyond the President’s
jurisdiction and violate the Doctrine of Separation of Powers which is a part of Basic
Structure Doctrine.

[II.B] INTRODUCTION OF A PERMANENT ARTICLE BY VIRTUE OF TEMPORARY

PROVISION.

24. It is humbly contended before this Hon’ble Court that Article 37058, being a temporary
provision cannot amend the Constitution by inserting Article 35A to Part III of the
Constitution of Koshinda which has a permanent characteristic.
25. Article 370 is a provision under Part XXI of the Koshindian Constitution which deals
with “Temporary, Transitional and Special Provisions”. The objective of the
Constituent Assembly of Koshinda while implementing Article 370 under the said Part
was due to the special conditions of the State of K&L.59 With the special conditions
i.e., a war going on within the limits of the State and cease-fire violations, which are
extremely unusual and abnormal, the State of K&L require special treatment.60 Hence,
Article 370, which is an ‘interim provision’61 as per the members of Constituent

55
Supreme Court Advocates-on-Record Association and Another v. Union of India, (2016) 5 SCC 1.
56
Supra, 47.
57
AG Noorani, A Constitutional History of Jammu & Kashmir, page, 5.
58
Constitution of Koshinda, Article 370.
59
AYYANGAR, Constituent Assembly Debates.
60
Ibid.
61
Ibid.

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Assembly of Koshinda, it was included in Part XXI of the Constitution of Koshinda

and titled as a ‘temporary’ provision with respect to State of K&L.62
26. With respect to the same, in clause (3) of Article 370, it is explicitly given that the
President by way of an order can abrogate the Article on recommendation of the
Constituent Assembly of the State.63 Under clause (3) of Article 370, the President can
issue an Order to abrogate the article in its entirety.64 In this instance, the power of the
President to abrogate can be used only once65 which substantiates the intention of the
Constitution makers of making it a temporary provision.
27. Article 35A was added to the Part III of the Constitution of Koshinda by the Presidential
Order of 1954 acquired a permanent status. Part III of the Constitution deals with the
Fundamental Rights and act as a negative obligation of the Union. 66 Article 35A was
added by a Presidential order, which is an executive order and hence, cannot be seen in
the main body of the Constitution. This leads to a contention that Article 35A, not being
a part of the text of the Constitution, is excluded from the power of the Parliament to
conduct a legislative review upon the article, giving it a permanent status.
28. By virtue of Article 370, which is a temporary provision, Article 35A having been
acquired the permanent status, cannot be added to the Constitution of Koshinda. The
rationale being that Article 370, which is a temporary provision, grants powers to the
President to pass orders or declare the article ceases to exist. However, Article 368,
being an article of permanent nature, grants power to make laws only to Parliament and
hence, by way of temporary provision, an article of permanent provision cannot be
added.
29. Therefore, it is humbly submitted to this Hon’ble Court that Article 370 is an interim
provision which was made with the sole intention of stabilizing the situation in the State
of K&L and that the Article 35A which was added by way of the Presidential Order,
1954 acquired the permanent status, excluding the Parliament to conduct a legislative
review upon the article. Hence, by virtue of temporary article, a new article of
permanent nature cannot be introduced to the Constitution of Koshinda.

62
Constitution of Koshinda, Article 370.
63
Constitution of Koshinda, Article 370(3).
64
AG Noorani, A Constitutional History of Jammu & Kashmir’ page, 72.
65
AG Noorani, A Constitutional History of Jammu & Kashmir’ page, 9.
66
VN Shukla, Constitution of India, 13th Edition 2017.

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Hence, it is humbly submitted that the Presidential Order of 1954 granting special status to
the State of K&L is unconstitutional since the sole power of amending the Constitution
vests in the Parliament and by virtue of temporary provision, a new article of permanent
nature cannot be introduced in the Constitution of Koshinda.

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[III] WHETHER ARTICLE 35A IS UNCONSTITUTIONAL

It is humbly contended before this Hon’ble Court that Article 35A is unconstitutional on
the ground that it infringes and violates Basic Structure of the Constitution of Koshinda.

31. Article 1367 expressly lays down what otherwise would have been implied i.e.,
supremacy of the fundamental rights over any other law in case of inconsistency
between the two.68 The test of infringement of fundamental rights lays down for the
protection against69 impairment of the guarantee of fundamental rights to be determined
by the nature of right, the interest of the aggrieved party and the degree of harm
resulting from the State action.70
32. In Bennett Coleman Co. v Union of India,71 the majority held that the tests of “Pith and
Substance of the subject matter” and the “Object of the legislation” were irrelevant to
the question of infringement of fundamental rights, and the true test was the “Direct
effect” of the impugned State action. Bhagwati J. also reiterated that what the court
must consider is the direct and inevitable consequence.72
33. The word "Basic Structure" is not mentioned in the constitution of India. The Doctrine
of Basic Structure was penned in the case of Kesavananda Bharti v. State of Kerala73.
The concept developed gradually with the interference of the judiciary from time to
time to protect the basic rights of the people74 and the ideals and the philosophy of the
constitution.
34. So, the doctrine of basic structure says that the parliament’s unlimited power to amend
the constitution is subject to only one restriction i.e. it should not dilute or violate the
basic structure of the constitution or the effects of the amendment should not be
abrogating or disturbing in nature towards the basic structure. The fundamental rights
mentioned in the Part III is held to be a part of the basic structure of the Constitution.75

67
Constitution of Koshinda, Article 13.
68
John Vallamattom v. Union of India, (2003) 6 SCC 611.
69
Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248.
70
VN Shukla, Constitution of India, 13th Edition 2017.
71
Bennett Coleman v. Union of India, AIR (1973) SC 106.
72
Maneka Gandhi v. Union of India, AIR (1978) SC 597; Man Singh v. State of Punjab, (1985) 4 SCC 146.
73
Supra, 47.
74
Indira Gandhi v. Raj Narain, AIR (1975) SC 2299.
75
Supra, 47.

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The basic structure doctrine has been recognized even by the Supreme Court of
Bangladesh76 and we as the architect of such doctrine have failed to follow.
35. Fundamental rights are inherited rights of citizens of State of K&L by the virtue of Part
III of Constitution of Koshinda and they form the basic structure of the Constitution and
any law, act or order that abrogates or abridges such right would be violative of basic
structure and hence, will be void and unconstitutional.77
36. Article 35A violates the Basic Structure of the Constitution of Koshinda on the
following grounds: [III.A] It is discriminatory in nature as per Article 14. [III.B]
infringes the basic rights guaranteed to a person under Article 21. [III.C] Restraints
right of access to the Supreme Court under Article 32 and 21.

[III.A] IT IS DISCRIMINATORY IN NATURE AS PER TO ARTICLE 14.

37. Article 35A is discriminatory in nature since it violates Fundamental rights enshrined
under Article 14 of Constitution of Koshinda. Article 14 form part of a string of
constitutionally guaranteed rights.78
38. Article 14 is considered to be one of the basic features of the constitution. 79 Right to
equality is enshrined under Article 1480 of the Indian Constitution which is recognized
and held to be a fundamental right of the citizens of Koshinda. Article 14 States that
there should be equality before law and equal protection of laws. The under-lying object
is to secure to all persons the equality of status and opportunity referred to in the
Preamble to the Constitution. The Doctrine of equality before law is necessary corollary
of Rule of Law which pervades the Indian Constitution.81 The same doctrine can be
seen in the Universal Declaration of Human Rights (“UDHR”) and has been recognized
by the various courts across the globe. The underlying objective of inserting right to
equality is to secure all person’s equality of status and opportunity referred in the
preamble to the Indian Constitution82, and has also been inserted into Constitution of
United States of America by the way of various amendments to their constitution.

76
Anwar Hossain Chowdhary v. Bangladesh, 41 DLR (1989) App. Div. 165.
77
State of Tamil Nadu v. K. Shyam Sunder, AIR (2011) SC 3470.
78
State of Kerela v. NM Thomas, (1976) 2 SCC 310.
79
Indra Sawhney v Union of India, (2000) 1 SCC 168.
80
Constitution of Koshinda, Article 14.
81
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 3.
82
Natural Resource Allocations, In re Special reference No. 1 of 2012, (2012) 10 SCC 1.

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39. The classification sought to be achieved must be reasonable,83 and with intelligible
differentia which is the fon juris of the Constitution.84 When a classification is made
between equals and it has been held to be arbitrary which leads to it being violative of
right to equality.85
40. Article 14 of Constitution of Koshinda specifically mentions that there shall be no
special privilege for anyone and that all are subjected to the ordinary laws of the land.
This although does not prohibit classification but only mentions reasonable
classification for the purpose of legislation is to bring everyone on the same footing.86
The classification must have a rationale and not be arbitrary as to achieve the intention
of the legislature.87 When the classification or restriction is not reasonable or the
intention of the legislature is unreasonable for which the classification or restriction is
made88, the classification or restriction will be void.89
41. Part III of Constitution of State of K&L creates a classification for ‘permanent
residents’ of the State. This part bifurcates between classes of people in permanent
residents of State and non-permanent residents; giving benefits, merits and privileges
to the State residents that was not utilised by non-permanent residents of the State. The
bifurcation was made on the basis of a notification released in 1927 90 by then
government led by Maharaja Harjinder Singh, which read with State Notification which
was released in 193291 gave the law of the citizenship of the State to some extent. This
then went against Parry’s Notion of ‘No written rule on State Nationality’92.
42. In current circumstances, there is no intelligible differentia or reasonability to create
discrimination between Nozangabad Refugees and the people who left but voluntarily
returned or even in case of property rights of men and women. The fundamental
requirement to become a ‘Permanent Resident’ of State of K&L is to own a land in the
State and to own a land, you have to be a resident of the State for a minimum of 10
years. This classification was made in the notices passed during Maharaja Harjinder
Singh.

83
Transport & Dock Workers Union v. Mumbai Port Trust, (2011) 2 SCC 575.
84
Sunita Bugga v. Director of Education, 2010 (5) SLR 535 (Del-DB).
85
Jagannath Prasad v. State of Uttar Prasad, AIR (1961) SC 1245.
86
Budhan v. State of Bihar, AIR (1955) SC 191.
87
State of Bombay v. Balsara, AIR (1951) SC 318.
88
Arunchala Nadar v. State of Madras, AIR (1959) SC 300.
89
Chintman Rao v. State of Madhya Pradesh, (1959) SCR 759.
90
Notification No. I-L/84, dated 20th April, 1927.
91
State Notification No. 1-/L, dated 27th June, 1932.
92
Parry, Clive, Op. Cit., P 842.

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43. A legislative classification to be valid must be reasonable. It must always rest upon
some real and substantial distinction bearing reasonable and just relation to the needs
or purpose in respect of which the classification is made. In order to pass the test for
permissible classification, two conditions must be fulfilled 1] The classification must
be founded on an intelligible differentia which distinguishes persons or things that are
grouped together from others left out of the group. 2] the differentia must have a rational
relation to the object sought to be achieved by the statute in question.93
44. All marks of distinction do not necessarily justify classification irrespective of the
relevance or nexus to objects sought to be achieved by the law imposing the
classification.94
45. If the object of the classification is itself discriminatory or unjust, then the explanation
of classification being reasonable having a reasonable relation to the object sought is
immaterial.95
46. Sheikh Abdullah had a different self-pleasing notion about Article 370 that it had made
Langoshia a “free country” with power to decide on its internal matters through its State
Assembly while the Koshindian role would be limited to external matters mentioned in
KOA only.96 It was a Faustian bargain of Sheikh Abdullah with Koshindia is proven by
the fact that through this tunnel (Article 370) the whole of the Constitution was applied
to the State of K&L.97
47. Established in case of Roop Chand Adlakha v. Delhi Development Authority98 and
reiterated in case of Kallakkurichi Taluk Retired Officials Association v. State of Tamil
Nadu99A classification to be valid must necessarily satisfy two tests, the distinguishing
rationale has to be based on just objective and the choice of differentiating one set of
persons from another must have a reasonable nexus to the objective sought to be
achieved.100
48. Arguendo, the object in current circumstance is to provide State of K&L with special
status in the Union of Koshinda to preserve its unique nature, create unity and work on

93
State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75; Raj Pal Sharma v. State of Haryana, (1985) Supp
SCC 72.
94
Roop Chand Adlakha v. Delhi Development Authority, AIR (1989) SC 307.
95
Subramanian Swamy v. CBI, (2014) 8 SCC 682.
96
K&L, CA Debates, page 481.
97
Jagmohan, My Frozen Turbulence in Kashmir, (2006, 7th edition); AG Noorani, A Constitutional History of
Jammu & Kashmir’.
98
Supra, 94.
99
Kallakkurichi Taluk Retired Officials Association v. State of Tamil Nadu, (2013) 2 SCC 772.
100
Union of India v. NS Rathnam and Sons, AIR (2016) SC 1273.

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internal development of the State. The objective though being just lacks the condition
of reasonable nexus.101 When there is no reasonable nexus for the classification, such
classification may be declared discriminatory.102
49. Differential treatment does not per se amount to violation of Article 14 of the
Constitution and can only be said to violate Article 14 only when there is no reasonable
basis103 and the differential must have a rational relation104 to achieve the object.105
50. The object though was just and reasonable, the differential created by the State lacked
the rational relation to the achievement of the object. The differential created for the
cause differentiates persons on unreasonable basis in relation to the cause. The cause
was to preserve its unique nature and work on internal development of the State but the
differentiation has no relation with the object of achievement.
51. The classification of only permanent residents being allowed to get admission in State
university or only permanent resident being able to apply for State or government jobs
led to has only led to quality cream of students and workers being stopped from getting
education which would have helped in development of the State. A Lehman person
would think that the special provision would have helped the State to gain great
employment levels. But the reality is the rate of unemployment his highest in the State
which is 24.3 percent. The unemployment rate is higher than the national average.106
52. The classification of permanent resident enjoying funds and policies of government and
not the non-permanent residents will only lead to people’s faith in government to sway
and hence, defeating the object. Article 370 and 35A did not provide autonomy to the
State in real sense. It curbed their rights and their consent never mattered for the
political ruler.
53. Also, the criteria of non-residents not being able to buy land in the State only restraints
the development since companies and educational institutes are not able to enter the
State and create a quality work and education environment.
54. Article 14 restricts differentiation on basis of gender and hence classification of a
women not being able to buy land, if marries non-Langoshian man and men able to buy

101
Laxmi Khandsari v. State of Uttar Pradesh, AIR (1981) SC 873.
102
S.Seshachalam v. Bar Council of Tamil Nadu,(2014) 16 SCC 72.
103
B. Manmad Reddy v. Chandra Prakash Reddy, AIR (2010) SC 1001.
104
Supra,84.
105
Supra,95.
106
Mahesh Vyas, Unemployment in Jammu and Kashmir, Centre for Monitoring Indian Economy, Sep 2019.

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land in the same circumstances is arbitrary and irrational, has no rational nexus to the
object of classification.
55. Article 370 and 35A did not solve the purpose for what they were actually installed in
the first place. Ankur Sharma, the advocate who filed a petition in Supreme Court for
declaring article 35A as void, is of the view that the article 370 has only filled the
pockets of rich families of Langoshia which includes the major political faces of the
State. Sheikh Abdullah who was regarded as the face of Langoshia was charged for
sedition. He was continuously involved with the Nozangabad government. If we go
through the autobiography of the ex-Nozangabad foreign secretary. He clearly
mentions how inability of the Centre government to take major decisions in the State
led to a revolution for “azaadi” credits to the provisions which make it an autonomous
State (370 and 35A). The people of Langoshia has been in insurgency post and pre
independence.
56. Therefore, it is humbly submitted that Article 35A violates Article 14 of Constitution
of Koshinda since it does not pass the test of permissibility of classification.

[III.B] INFRINGES THE BASIC RIGHTS GUARANTEED TO A PERSON UNDER ARTICLE 21 OF

CONSTITUTION OF KOSHINDA.

57. Article 21 of the Constitution is applicable to every person residing in India. The
expression ‘life’ includes right to live with dignity.107 The Nozangabad refugees, by not
letting them have a permanent citizenship, are being denied of ‘right to life’ guaranteed
by Article 21. The fundamental rights of Article 14 and 19 are also infringed.
58. Article 21 guarantees enjoyment of life by all citizens of Koshinda with dignity,
viewing this basic right in terms of human development, falling within the realm of
personal liberty guaranteed by Article 21. Right to personal liberty also means the life
free from encroachments unsustainable in law. Any law inferring with the personal
liberty of a person must satisfy a triple test- one, it must prescribe a procedure; two, the
procedure must withstand the test of one or Fundamental rights conferred under Article
19; three, must be liable to be tested with reference to Article 14.108
59. The procedure prescribed by law is not merely confined to the law made by the
legislature. Law may take various other forms as well. The procedure laid down must

107
P Rathinam v. Union of India, AIR (1994) SC 1844.
108
MP Jain, Indian Constitutional Law, 8th Edition 2019.

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be just, fair and reasonable and not arbitrary, fanciful and oppressive. This procedure
must be in accordance with the principles of natural justice.
60. The Article in question, Article 35A, violates the basic rights guaranteed to a human,
which includes right to education guaranteed under Article 21A and livelihood.
61. Article 21A recognizes Right to education as a fundamental right, added through 86th
Amendment,2002, under the ambit of Right to life and personal liberty109 because of its
inherent fundamental importance.110 Article 21A is considered as the most important
fundamental right and stands above other rights, “as one’s ability to enforce one’s
fundamental right flows from one’s education.”111
62. The court also held that Article 14 applies to State educational institutes, compelling
them to admit students on merit with permissible reservation but again merit inter se
has to be followed.112
63. Nozangabad Refugees, in regards to their admission in higher, technical/professional
institution of State, were denied on the basis that they are not State subjects or
“Permanent Resident”. The difficulty regarding education for these people is not with
regard to school education or even college education, it arises when the education is
with respect to in higher, technical/professional institution of State. The question of
merit being an integral part of admission is not followed since residence ship is the only
dominant criteria. Those institutions if you are in State of K&L, then the first question
that they ask is for them to show their Permanent Resident Certificates. If they do not
show the Permanent Resident Certificate, they are not eligible to get admission there.
In the case of Bachan Lal Kalgotra v State of Jammu and Kashmir, Supreme Court
recognised this right being violated and hence, advised the State Government to issue
appropriate guidelines for the same. This classification violates their basic right under
Article 21A.
64. In the extended view of Article 21113 include right to livelihood which was, in an earlier
case rejected114 to fall under ambit of Article 21. But then the court underwent a change
and while defining the word ‘life’ under Article 21, held that right to life guaranteed

109
Unnikrishnan JP v. State of Andhra Pradesh, AIR (1993) SC 2178.
110
MP Jain, Indian Constitutional Law, 8th Edition 2019.
111
Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1.
112
Unnikrishnan JP v. State of Andhra Pradesh, AIR (1993) SC 2178.
113
Maneka Gandhi v. Union of India, AIR (1978) SC 597.
114
In Re Sant Ram, AIR (1960) SC 932.

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under Article 21 includes “Right to Livelihood.”115 Right to life includes right to

employment.116
65. One of the most important facets of the Right to Life is the Right to Livelihood since
no person can live without the means of living, that is means of livelihood.117 If right
to Livelihood is not considered as a part and parcel of the constitutional Right to Life,
the easiest way of depriving a person of his right of life would be to deprive him of his
means of livelihood to the point of abrogation.118Depriving a person of his right to
livelihood and it shall deprive him of his life since livelihood is what makes life
liveable.119
66. The right to livelihood, therefore, cannot hang on to the fancies of the individuals in
authority.120 The employment is not a bounty from them nor can its survival beat their
mercy. Income is the foundation of many Fundamental rights and when work is the sole
source of income, the right to work becomes as much fundamental. Fundamental Rights
can ill-afford to be consigned to the limbo of undefined premises and uncertain
application.121
67. The classification of permanent residents getting a State or government job creates a
bifurcation that leads to violation of Nozangabad Refugees right of livelihood which is
a part and parcel of Article 21. The word ‘person’ indicates that this right is not only
available to citizens but also to non-citizens as a basic right for the survival.

[III.C] RESTRAINTS RIGHT OF ACCESS TO THE SUPREME COURT UNDER ARTICLE 32 AND
21.

68. Article 32 provides for the remedy in case of infringement of rights guaranteed under
Part III of the Constitution of Koshinda. This Article has been recognized as a part of
basic structure of the Constitution.122 Even well before the recognition of the basic
structure of the Constitution, the court had already recognized its special power 123 of

115
Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni, AIR (1983) SC 109.
116
Secretary, State of Karnataka v. Umadevi, AIR (2006) SC 1806.
117
DK Yadav v. JMA Industries, (1993) 3 SCC 259.
118
Dr. Hariraj Chulani v. Bar Council of Maharashtra and Goa, (1996) 3 SCC 345.
119
Olga Tellis v. Bombay Municipal corporation, AIR (1986) SC 180.
120
DTC v. DTC Mazdoor Congress, AIR (1991) SC 101.
121
RD Upadhyay v. State of Andhra Pradesh, (1996) 3 SCC 422.
122
L. Chandra Kumar v. Union of India, AIR (1997) SC 1125.
123
Prem Chand Garg v. Excise Commissioner, AIR (1963) SC 996.

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protector and guarantor of Fundamental Rights124 and plays a role of Sentinel on the
qui vive 125
69. Article 21 of Constitution of Koshinda guarantees Right to life and liberty.126 Article
21 is so interpreted in multiple cases and it includes the right of access to the Supreme
Court127 since “Right to Life” extends to live with human dignity128 and judicial review
is one of essential elements required to live dignified life since it gives opportunity to
an individual to question violation of his rights in form of an act, law or order.129

70. Article 35A passed under the Presidential order refrains from challenging any Act or
Law passed under it on grounds of constitutionality, which infringes the rights of
Citizen to bring any Act or Law under this Article for Judicial Review, which is and
extraordinary power vesting with the Supreme Court to ensure that the rights of citizens
are duly protected130. This essentially means it infringes a fundamental right of citizen,
right of access to the Supreme Court.131
Therefore, it is humbly submitted before this Hon’ble Court that Article 35A is
Unconstitutional.

124
Romesh Thappar v. State of Madras, AIR (1950) SC 124.
125
State of Madras v. V.G. Row, AIR (1952) SC 196.
126
Consititution of Koshinda Article 21.
127
Rudul Sah vs. State of Bihar, AIR 1983 SC 1086.
128
State of Maharashtra v. Chandrabhan, AIR (1983) SC 180.
129
Chandra Bhavan v. State of Mysore, (1970) 2 SCR 600.
130
Manohar Lal Sharma v. Principle Secretary, (2014) 2 SCC 532.
131
Common Cause, A Registered Society v. Union of India, AIR (1999) SC 3020.

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PRAYER

Wherefore it is prayed, in the light of issues raised, arguments advanced, and authorities cited,
this Hon’ble Court may be pleased to:

1. HOLD the writ petition maintainable.

2. HOLD the Presidential Order of 1954 unconstitutional.
3. HOLD Article 35A unconstitutional.

AND / OR

any other Order, or Relief, that it may deem fit in the Interests of Justice, Equity and
Good Conscience.

For this act of kindness, the Petitioner shall duty bound forever pray

Sd/-

(Counsel for the Petitioner)

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