IN THE SUPREME COURT OF INDIANA

(Civil Original Jurisdiction)

WRIT PETITION (CIVIL) No. OF 2019

Between:
DEMOCRATIC SOCIETY OF INDIANA …PETITIONERS
Versus
UNION OF INDIANA …RESPONDENTS

Petition under Article 32 of the Constitution of Indiana

COUNSELS APPEARING ON BEHALF OF THE PETITIONERS

1|Page
 TABLE OF CONTENTS

TABLE OF CONTENTS….......................................................................2

INDEX OF AUTHORITIES......................................................................3

STATEMENT OF JURISDICTION...........................................................4

STATEMENT OF FACTS..........................................................................5

STATEMENT OF ISSUES.........................................................................6

STATEMENT OF ARGUMENTS..............................................................7

PRAYER.....................................................................................................20

2|Page
 INDEX OF AUTHORITIES

LEGISLATIONS REFERED
1. THE CONSTITUTION OF INDIA,1950
2. THE CONSTITUTION OF JAMMU AND KASHMIR,1956
3. INSTRUMENT OF ACCESSION
4. PRESIDENTIAL ORDER G.S.R. 551(E) (C.O. 272)
5. PRESIDENTIAL ORDER 562(E) (C.O. 273)
6. JAMMU AND KASHMIR REORGANIZATION ACT, 2019

CASES CITED

1. Kesavananda Bharati v. Union of India, (1973) 4 SCC 225

2. Mohd Maqbool Damnoo v. State of J&K, 1972 1 SCC 536
3. Nazeer Ahmed v. King Emperor, AIR 1936 PC 253, 257
4. NCT of Delhi v. Union of India 2018 8 SCC 501

5. Puranlal Lakhanpal v The President of India 1962 SCR (1) 688

6. R.C. Poudiyal v. Union of India, 1994 Supp 1 SCC 324
7. Sampat Prakash v. State of Jammu and Kashmir 1969 2 SCR
8. State Bank of India v. Santosh Gupta 2017 2 SCC 538
9. S.R. Bommai v. Union of India, (1994) 3 SCC 1.

BOOKS REFERED
1. BLACK’s LAW DICTIONARY
2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA
(8TH ED. 2007).
3. M.P.JAIN, INDIAN CONSTITUTION LAW (7TH EDITION 2017)
4. P.M. BAKSHI COMMENTARY ON CONSTITUTION OF INDIA (7th EDITION)

3|Page
 STATEMENT OF JURISDICTION

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA

THE PETITIONER HUMBLY SUBMITS TO THE JURISDICTION OF THIS

HONOURABLE COURT UNDER ARTICLE 32 OF THE CONSTITUTION. THE
PETITIONER HAS APPROACHED THIS HONOURABLE COURT IN APPREHENSION
OF THE VIOLATION OF FUNDAEMENTAL RIGHTS GURANTEED UNDER PART III
OF THE CONSTITUTION OF INDIANA. THIS WRIT PETITION IS BEING FILED FOR
ISSUANCE OF APPROPRIATE WRIT, DIRECTION OR ORDER DECLARING THE
PRESIDENTIAL ORDER G.S.R. 551(E) (C.O, 272), PRESIDENTIAL ORDER 562(E)
(C.O. 273) AND THE ASHMIR REORGANIZATON ACT 2019 AS
UNCONSTITUTIONAL BEING VIOLATIVE OF FUNDAEMENTAL RIGHTS UNDER
ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIANA; AND FOR THE
ISSUANCE OF CONSEQUENTIAL WRIT QUASHING THE SAME. THEREFORE, THE
PETITIONER MAINTAINS THAT THE JURISDICTION OF ART 32 OF THE
CONSTITUTION, WHICH PROTECTS THE CITIZENS OF INDIANA FROM ANY
VIOLATION OF THEIR FUNDAMENTAL RIGHTS, IS APPLICABLE IN THE PRESENT
CASE.

4|Page
 STATEMENT OF FACTS

1. Union of Indiana is the Union of States bound together by a Constitution and having a
federal structure.
2. Ashmir became the part of Union of Indiana in the year 1947 by signing the 'Instrument
of accession of Ashmir', which authorized the Union of Indiana to legislate on the issues
of defence, foreign affairs and communication only and as a result of this, Article 370,
which is of transitional nature was added to the Constitution of Indiana.
3. Article 370 allows the the State of Ashmir to have a separate Constitution and also
confers right on the Constituent Assembly of the State of Ashmir to have concurrence
for application of provisions of Constitution of Indiana for the State of Ashmir.
According to this any changes in the relationship between the State of Ashmir and
Indiana can be brought only on the recommendation of Constitutent Assembly of the
State of Ashmir and for this purpose Legislative Assembly can work as the Constituent
Assembly.
4. On 20th June 2018 the exiting coalition government of State of Ashmir was dissolved
and Governors Rule was imposed on the State. On 21st November 2018, the legislative
assembly of the Ashmir was also dissolved and subsequently on 19th December,
President's Rule was imposed which was later extended on 12th June 2019 for a further
period of six months
5. On the recommendation and request of the Governor of Ashmir, Presidential order was
issued revoking some provisions of Article 370 and applying the constitutional
provisions of Indiana to the State of Ashmir (G.S.R. 551(E) (C.O. 272) and (G.S.R.
562(E) (C.O. 273). Also on the same day, 'Ashmir Reorganization Bill 2019', bifurcating
the State of Ashmir into two Union Teritories was also unanimously passed by
Parliament of Indiana.

5|Page
 STATEMENT OF ISSUES

II. WHETHER THE RECOMMENDATION OF THE GOVERNOR OF STATE OF

ASHMIR AMOUNTS TO THE VIOLATION OF ARTICLE 370?

[A.] The concurrence in question is an insufficient constitutional foundation upon which to

base a Presidential order of this nature.
[B.] The power under 370(1)(d) does not contemplate the wholesale application of "all
provisions of the Indian Constitution"- at present and in perpetuity - to "apply in relation to
the state of Jammu and Kashmir".
[C.] The Presidential order incorrectly invokes Article 370(1)(d) to effectively amend the
proviso to Article 370(3).
[D.] Even if G.S.R. 551(E)( C.O. 272) was otherwise valid, insofar as it seeks to amend
370(3), it is legally invalid, as the legislative assembly of the State of Ashmir has no power
under the Constitution of Ashmir to bring about an amendment to any provision under the
Constitution of Indiana.
[E.] Presidential Order G.S.R. 562(E) (C.O. 273) is constitutionally invalid.
[F.] The President Orders C.O. 272 and 273 enact constitutional change in the State of Ashmir
and are thus ultra vires Article 356 read with 357 of the Constitution of India.

II. WHETHER ASHMIR REORGANIZATION ACT 2019 IS CONSTITUTIONALLY

VALID?

[A.] The Act is unconstitutional because the consent of the State Legislative Assembly wasn't
taken for the reorganization.

[B.] The Act unconstitutionally downgrade the status of Ashmir from State to that of Union
Territory.

6|Page
 ARGUMENTS ADVANCED

I. WHETHER THE RECOMMENDATION OF THE GOVERNOR OF STATE OF

ASHMIR AMOUNTS TO THE VIOLATION OF ARTICLE 370?

1. It is humbly submitted before this Hon'ble Court that the recommendation of the Governor is
ultra vires the power conferred to him under the Constitution and amounts to the violation of
Article 370. This is because the concurrence in question is an insufficient constitutional
foundation upon which to base a Presidential order of this nature [A.] the power under
370(1)(d) does not contemplate the wholesale application of "all provisions of the Indian
Constitution"- at present and in perpetuity - to "apply in relation to the state of Jammu and
Kashmir";[B.] the Presidential order incorrectly invokes Article 370(1)(d) to effectively
amend the proviso to Article 370(3) [C.] even if G.S.R. 551(E)( C.O. 272)1 (hereinafter to be
referred to as C.O. 272) was otherwise valid, insofar as it seeks to amend 370(3), it is legally
invalid, as the legislative assembly of the State of Ashmir has no power under the Constitution
of Ashmir to bring about an amendment to any provision under the Constitution of Indiana
[D.] Presidential Order G.S.R. 562(E) (C.O. 273)2 (hereinafter to be referred to as C.O. 273)
is constitutionally invalid. [E.] The President Orders C.O. 272 and 273 enact constitutional
change in the State of Ashmir and are thus ultra vires Article 356 read with 357 of the
Constitution of Indiana [F.]

[A.] The concurrence in the present case is insufficient

2. It is respectfully submitted that the second proviso to Article 370(1)(d) stipulates that for
matters that do not relate to those specified in the Instrument of Accession (hereinafter to be
referred to as I.O.A.), the consent of the Government [of the State of Ashmir] is required. The
Hon'ble Court has held that the constitutional right to consent to presidential orders is essential
feature of Article 370(1)(b) and 370(1)(d) and further, that the State [of Ashmir] is entitled to
decide who will consent on its behalf (Mohd Maqbool Damnoo v. State of J&K, 1972 1
SCC 536)3. In any event, "government" cannot be equated with "governor" in matters
involving the fundamental and permanent restructuring of the state itself. This is because,
as is well established. President's Rule is temporary exceptional phenomenon, designed to
address an emergent situation until such time that an elected government is restored to power.

1
G.S.R. 551(E) C.O. 272
2
CG.S.R. 562 (E) C.O. 273
3
Mohd Maqbool Damnoo v. State of J&K, 1972 1 SCC 536

7|Page
 (S.R. Bommai v. Union of India, (1994) 3 SCC 1)4. In the context of Article 370, therefore,
this Hon'ble Court ought not to read "government" to include "governor", in cases involving
irreversible alteration to relationship between the State and the Union of Indiana. Also
the oath taken by the Governor under Article 31 of the Constitution of Ashmir states that '"
… I will to the best of my ability preserve, protect and defend the constitution [of Ashmir] and
the law…". The recommendation of the Governor to make all the provisions of the
Constitution of Indiana to be applicable to the State of Ashmir and thus making the provisions
of the Constitution of Ashmir no more applicable is contradictory to the oath taken by under
the Article 31 of the Constitution of Ashmir. Instead of preserving and protecting the
Constitution [of Ashmir], the recommendation of the Governor is rendering the Constitution
of Ashmir completely insignificant and otiose.
3. It is respectfully submitted that in NCT of Delhi v. Union of India 2018 8 SCC 5015, a
constitutional bench made it clear that representative democracy is the basic feature of the
Constitution and that the Constitution should be interpreted to advance- and not retard- this
principle. It is respectfully submitted that an interpretation of Article 370(1)(d) that would
include "governor" within the meaning of "government" during the imposition of the
President's Rule would destroy the principle of representative government for the reasons
stated above.
4. In State Bank of India v. Santosh Gupta 6the court observed-
"Article 370 will cease to operate under sub clause (3) only when a recommendation is
made by the constituent assembly of the State to that effect. It is important to note that
Article 370 (2) does not in manner state that this Article shall cease on the completion
of work of the constituent assembly or its dissolution. Thus though the marginal note
refers to 370 as only a temporary provision, it is in fact in current usage and will
continue to be in force until the specified event in the clause (3) of the Article takes
place."
The extension of the provisions of the Constitution of Indiana to the State of Ashmir on the
recommendation of the Governor, will make Article 370 lose its force and thus render it otiose.
But this can be done only through the event mentioned in the clause (3) of Article 370 i.e. on
the recommendation of the Constituent Assembly.

4
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
5
NCT of Delhi v. Union of India 2018 8 SCC 501
6
State Bank of India v. Santosh Gupta 2017 2 SCC 538

8|Page
 [B.] The power under 370(1)(d) does not extend to a wholesale replacement of the
Constitution of Ashmir
5. It is humbly submitted that the clause 2 of the Presidential order, that seeks to extend "all the
provisions of this constitution, as amended from time to time", ipso facto and in perpetuity, is
ultra vires and is beyond the authority conferred by Article 370(1)(d) of the Constitution.
6. Because any grant of power under the Indian Constitution carries within it implied limitations
upon the exercise of that power, consistent with the reasons why the power in question has
been granted. (Kesavananda Bharati v. Union of India, (1973) 4 SCC 225)7. It is
respectfully submitted that- as the debates in the Constituent Assembly indicate, the purpose
of this clause was to extend certain provisions of the Indian Constitution to the State of Jammu
and Kashmir from time to time, based upon exigencies of the situation (and this indeed, how
it has been applied, through various Presidential Orders, from 1954). The intention was not
to apply the Indian Constitution as a whole, through a single order, and until perpetuity, to the
State of Jammu and Kashmir (thus making the Constitution of Ashmir redundant through
legislative backdoor). Such a situation is contemplated only under the process outlined in
370(3).
7. Because 370(1)(d) requires application of mind by the President about which provisions shall
be made to apply to the State of J&K as held in Sampat Prakash v. State of Jammu and
Kashmir 1969 2 SCR8. The power to apply provisions with modifications and exceptions
does not imply a power to apply provisions without any modifications or exceptions, because
doing so forecloses the possibility of future re-consideration by President from time to time,
which is constitutionally required, per Sampat Prakash 1969 2 SCR9:
"It was envisaged that the President would have to take into account the situation
existing in the State while applying the provisions of the Constitution and such
situations could arise from time to time. There was clearly the possibility that, when
applying the particular provision, the situation might demand an exception or
modification of the provision applied; but subsequent changes in that situation might
justify the rescinding of those modifications or exceptions"
Also in State Bank of India v. Santosh Gupta9, the court held that:
" The reason for the enactment of Article 370 is that it was necessary for the President
to exercise his discretion from time to time in applying the constitution of India to the

7
Kesavananda Bharati v. Union of India, (1973) 4 SCC 225
8
Sampat Prakash 1969 2 SCR
9
ibid

9|Page
 state of J&K from time to time. This being so, Article 370 would necessarily has to be
invoked every time the President with State's concurrence, feels it necessary that
amendments to the Constitution of India be made applicable to the State of J&K, given
the special provision of Article 368 which applies only to the State of Jammu and
Kahmir"
8. Because, wholesale extension of the Constitution of Indiana to the State of Ashmir violates the
terms of I.O.A. signed between the then ruler (Maharaja of Ashmir) and Government of
Indiana. Article 370 is the Constitutional recognition of the conditions mentioned in the I.O.A.
Black's Law dictionary defines word Instrument as 'A written legal document that defines
rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share
certificate.'. The word accession is defined as "The doctrine by which something of lesser size,
value, or importance is integrated into something of greater size, value or importance ''. The
same dictionary thus defines I.O.A. as 'A document formally acknowledging the issuing state's
consent to an existing treaty and exchanged with the treaty parties or deposited with a
designated state or international organization.' Thus from these definitions, following points
can be ascertained- 1) The instrument of Accession is a legal document, 2) It is binding
contract on both the parties, 3) It integrates two parties on the terms agreed in it, 4) It puts
certain fundamentally binding duties on both the parties, 5) It gives certain duties to the parties
involved. The maxim under international law which governs contracts or treaties between
states is Pacta Sunt Servanda i.e. promises between states must be honored. Clause 7 of the
I.O.A. enumerates that Maharaja didn't have to accept the future Constitution of Indiana and
Government of Indiana cannot force Maharaja to do so. Clause 8 of this document clearly
states that "nothing in this instrument affects the continuance of my sovereignty" which is
followed by clause 9 which makes it explicitly clear that he is signing the document on behalf
of the people of Ashmir. Thus it is clear that Government of Indiana had acknowledged the
Maharaja as a legal representative of the people of Ashmir. Thus enforcing the Constitution
of Indiana over the state of Ashmir without the consent of the legal representatives of the
people of State of Ashmir is a violation of the terms of I.O.A. as under this Instrument,
Maharaja has formed a relationship with Indiana in which he and his state were sovereign and
Government of Indiana has control only over defence, foreign affairs and telecommunications
(clause 3).

[C.] Article 370(1)(d) cannot be invoked to (indirectly) amend 370(3) of the Constitution

10 | P a g e
9. Because clause (2) of the Presidential Order purports to amend Article 367 of the Constitution;
however, the effect of these amendments is to bring about changes in the text of 370 of the
Constitution via Article 367. In particular, sub clause (d) of clause 2 of the Presidential Order
stipulates that "in proviso to clause (3) of Article 370 of this Constitution, the expression
"Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly
of the State". It is respectfully submitted that the Presidential Order, in effect, amends Article
370 of the Constitution; it is a well-established fact that "what cannot be done directly cannot
be done indirectly". If, therefore, Article 370 cannot be directly amended through a
Presidential Order (as demonstrated below), neither can it be through the device of inserting a
new provision into Article 367, in relation to the State of Ashmir.
10. The Rule of Literal Construction: Because Article 370(1)(c) of the Constitution stipulates
that "notwithstanding anything in this constitution, the provisions of Article 1 and of this
Article shall apply in relation to the State". Article 370(1)(d) stipulates that " … such of other
provisions of this Constitution shall apply in relation to that State subject to such exceptions
and modifications as the President may by order specify." It is therefore evident that Article
370(1)(d) provides constitutional authority to President - by order- to amend or modify the
application of all provisions of the Constitution in relation to the State except Article 1 and
370 itself.
11. The Rule of Harmonious Construction: Because Article 370(3) authorizes the President to
"declare that this article shall cease to be operative only with such exceptions and
modifications … as he may specify." Consequently the power to alter the terms to Article 370
are contained within Article 370(3); to vest that power in 370(1)(d) would render Article
370(3) and it proviso otiose.
12. The Rule in Nazeer Ahmed's Case: Because it is a well-established principle that "where a
power to do a certain thing in a certain way the thing must be done in that way or not at all.
Other methods of performance are necessarily forbidden. Nazeer Ahmed v. King Emperor,
AIR 1936 PC 253, 25710
13. Because the historical genesis of Article 370 supports this argument. During the debates
around Draft Article 306A (and later 370) on 17th October 1949, Shri Gopalswami
Ayyangar - the mover of the Article- made it clear that the terms of relationship between the

10
Nazeer Ahmed v. King Emperor, AIR 1936 PC 253, 257

11 | P a g e
 State of Kashmir and the Indian Union could only be altered following the method set down
in clause (3) of the Article.
14. Because Article 370(1)(d) only authorizes the President to “apply in relation to that State
subject to exceptions and modifications” ... “such of the other provisions of this Constitution.
The power under Article 370(1)(d), therefore, extends to amending or modifying the
application of the provisions of the Constitution to the State of Jammu and Kashmir. This
power does not extend to creating a fresh constitutional provision (in this case, Article 367(4)),
which is then applied solely to the State of Jammu and Kashmir. It is respectfully submitted
11
that in Puranlal Lakhanpal v The President of India 1962 SCR (1) 688 this Hon’ble
Court, while according a wide amplitude to the meaning of the word “modification”,
conspicuously refrained from using the word “create”. In Puranlal Lakhanpal, this Hon’ble
Court held that the word “modify” means “to vary” and “may even mean to extend or enlarge.”
It is clear that the underlying premise of this definition is the existence of a constitutional
provision that is then “varied”, “extended”, or “enlarged” in its specific application to the State
of Jammu and Kashmir; as submitted above, this conspicuously refrains from covering a
situation where a new constitutional provision is fashioned out of whole cloth. The principled
rationale for this is that a Presidential Order cannot create a new constitutional right, liability,
or disability. It is a cornerstone of democracy and the common law that constituent power
does not vest in a single functionary.
15. Because while in Mohd. Maqbool Damnoo v State of J&K, 1972 1 SCC 536,12 the Hon’ble
Court held that a Presidential Order could bring about a change in Article 370 if it was
elucidating the constitutional position of the state of Jammu and Kashmir, the holding of that
case is inapplicable to the present situation. In Damnoo, it was held that the substitution of
Sadar-i-Riyasat with the Governor in Article 370 was valid, because the Governor had
substituted the Sadar-i-Riyasat. However, in the present circumstances, the “legislative
assembly” cannot in any sense be understood as having substituted the “Constituent
Assembly” of the state of Ashmir. Not only is the distinction between legislative power and
constituent power well-established in Indian constitutional jurisprudence, but also, Article
147 of the Constitution of Jammu and Kashmir expressly bars the legislative assembly of
Jammu and Kashmir from exercising constituent power with respect to the provisions of the
Indian Constitution relating to the state of Jammu and Kashmir.

11
Puranlal Lakhanpal v The President of India 1962 SCR (1) 688
12
ibid

12 | P a g e
[D.] Even if C.O. 272 was otherwise valid, insofar as it seeks to amend Article 370(3), it is
legally invalid, as the legislative assembly of the State of Ashmir has no power under the
Constitution of Ashmir to bring about an amendment to any provision under the
Constitution of Indiana.
16. Because the “consent” to Order C.O. 272 was invalidly given, as powers under President’s
Rule are co-terminus with that of the legislative assembly of the State of Jammu and Kashmir.
However, under the proviso to Article 147 of the Constitution of Ashmir, the legislative
assembly of Ashmir is barred from “seeking to make any change the provisions of the
constitution of India as applicable in relation to the State”; consequently, since the legislative
assembly could not have given its consent to Presidential Order C.O. 272, nor could the
Governor.
17. Because, and consequently, insofar as it seeks to vest in the legislative assembly of the State
of Ashmir powers that it is expressly barred from exercising under the Constitution of Ashmir,
Presidential Order C.O. 27213 is to that extent invalid and inoperative.
18. Because in any event, the Constituent Assembly of Ashmir was aware of its power and
authority to recommend amendment, modification, or abrogation of Article 370 upon the
conclusion of its proceedings. However, the Constituent Assembly did not do so, and clearly
intended Article 370 to remain intact. It is respectfully submitted that the “legislative
assembly” standing alone is not an automatic successor to the Constituent Assembly, as the
distinction between constituent power and legislative power is well established in Indian
constitutional jurisprudence. Also the law recognizes the Acts of omission (in this case, not
recommending the abrogation of Article 370). This is to say that by dissolving itself without
recommending the abrogation, the Constituent Assembly of Ashmir made clear its intention
not to abrogate Article 370.

[E.] Presidential Order G.S.R. 562(E) (C.O. 273) is constitutionally invalid.

19. It is respectfully submitted that Presidential Order C.O. 27314, which purports - under authority
of Article 370(3) to abrogate all clauses of Article 370 (except for clause (1)) is
constitutionally invalid. A presidential order under Article 370(3) of the Constitution of
Indiana requires the Constituent Assembly of Ashmir to recommend a presidential notification

13
Ibid
14
Ibid

13 | P a g e
 under Article 370(3) declaring that Article 370 shall cease to be operative. It is respectfully
submitted that the Ashmir Constituent Assembly no longer exists and thus could not have
made a recommendation to that effect. Furthermore, no recommendation was made by any
legislative body in Ashmir in exercise of its constituent power or otherwise that Article 370
cease to have effect.
20. Because the invalidity of Presidential Order C.O. 273 follows from the invalidity of
Presidential Order C.O. 272. It is respectfully submitted that Presidential Order C.O. 273 is
based upon the consent of the Parliament of Indiana, standing in for the (temporarily non-
existent) legislative assembly of the state of Ashmir. This authorisation, in turn, flows from
Presidential Order C.O. 272, which substitutes “legislative assembly” for “Constituent
Assembly”, under Article 370(3) (which itself has been shown to be impermissible above). It
therefore follows that Presidential Order 273 cannot stand without the authority of Presidential
Order 272.
21. Because while the President may have modified Article 367(4)(d) as it is applied to Ashmir,
a similar amendment has not been made either to Article 367(4)(d) or Artice 370(3) of the
constitution of Indiana itself by the Parliament. The President's power to modify the Indian
Constitution under 370(1)(d) is limited to Ashmir only. The power to amend constitution lies
with the Parliament. Therefor the constitution as applicable to Ashmir contains Article
367(4)(d) which requires 'Constituent Assembly' in 370(3) to be read as the 'legislative
assembly' but it is applicable only to Ashmir. Absent is parliamentary amendment to this
effect. Even if the President intends to act on the recommendation of the legislative assembly
of Ashmir to ammend Article 370 under Article 370(3), he is bound by his oath of office to
uphold the Constitution of Indiana as it stands (except in the case of Ashmir) and it does not
contain either Article 367(4)(d) or amended version of Article 370(3). Therefore the
recommendation of Constituent Assembly of Ashmir is still required to amend Article 370.

[F.] The President Orders CO 272 and 273 enact constitutional change in the State of
Jammu and Kashmir and are thus ultra vires Article 356 read with 357 of the
Constitution of India
22. Because the President does not have the power to change the provisions of the Constitution of
Indiana, as applied to State of Ashmir, during President’s rule under Article 356(1). The
President can issue a proclamation under Article 356(1), as applied to the State Ashmir by the

14 | P a g e
 Constitution (Application to Jammu and Kashmir) Order 195415, if s/he is “satisfied that
situation has arisen in which the government of the State cannot be carried on in accordance
with the provisions of the Constitution of the State of Jammu and Kashmir.” Therefore, by
necessary inference, President’s intervention under Article 356 must be to ensure that
government in State of Ashmir can be carried out in accordance with the provisions of the
Constitution of Ashmir, and towards restoring constitutional machinery in the State. As a
corollary, the President ought not amend the provisions of the Constitution of Ashmir through
the powers under Article 356(1) as applied to Ashmir.
23. Because, it is respectfully submitted that the President has instead completely eliminated the
Constitution of Ashmir by altogether superseding the 1954 Order in impugned orders C.O.
272 and C.O. 273. In doing so, the President conflated powers under Article 370(1)(d) with
the powers under Article 356 of the Constitution of India as applied to the State of Ashmir. It
is submitted that the power of the President under Article 370(1)(d) is under the Constitution
of Indiana qua Indiana, while the power of the President under Article 356 is under the
Constitution of Indiana as applied to Ashmir, and that the merger of powers granted to the
President in two separate capacities is unconstitutional.
24. Because the power of the President under Article 356(1) (c) to suspend “in whole or in part
the operation of any provisions of the Constitution of Jammu and Kashmir relating to any
body or authority in the State...” does not save the impugned orders for two reasons: first, the
power under Article 356(1)(c) can only be exercised to “make such incidental and
consequential provisions as appear to the President to be necessary or desirable for giving
effect to the objects of the Proclamation”; and second, the power under Article 356(1)(c) ought
to be read with Article 356(1)(c) and Article 357 as applied to Ashmir. By such a holistic
reading, the President is only empowered to transfer the “legislative powers” of the State
legislature to the Parliament/the President under Article 357(1)(a). By way of CO 272, the
President effectively repeals the Constitution of State of Ashmir, by superseding the 1954
Order which made provision for application of the Constitution of Indiana in the State Ashmir.
Thus CO 272 enacts a constitutional change that is ultra vires the legislative powers transferred
to the President under Article 356(1)(b) read with Article 357 and is hence unconstitutional.

15
Ibid

15 | P a g e
 II. WHETHER ASHMIR REORGANIZATION ACT 2019 IS CONSTITUTIONALLY
VALID?

25. It is humbly submitted before this Hon’ble court that since the impugned Presidential Orders
(that is C.O. 272 and C.O. 273) are unconstitutional, the provisions of Constitution of Indiana
are inapplicable to the State of Ashmir, and hence the Ashmir Reorganization Act is
constitutionally invalid. The Act is further unconstitutional because the consent of the State
Legislative Assembly wasn't taken for the reorganization [A.], the Act unconstitutionally
downgrade the status of Ashmir from State to that of Union Territory [B].

[A.] The consent of the State Legislature wasn't taken during the reorganization

26. It is humbly submitted that the disregard for the State Legislature while passing the Ashmir
Reorganization Act 2019 disrupts the balance between the Union and States provided for in
the Constitution, and also violates the federal setup provided for in the Constitution.

26.1 Article 3 of the Constitution says that “Provided that no bill for the purpose shall be
introduced in either House of the Parliament except on the recommendation of the President
and unless, where the proposal contained in the bill affects the area, boundaries or name of
any of the States, the bill has been referred by the President to the Legislature of that
State for expressing its views thereon within such period as may be specified in the
reference or within such further period as the President may allow and the period so specified
or allowed has expired.” Therefore, the proviso to the provision clarifies that no bill that
affects the boundaries of a State can be initiated unless a resolution is first tabled in the
legislative assembly of the State that would be affected.

26.2 During the discussion over Article 3 in the Constituent Assembly, Dr. Ambedkar explained,
“I have not the least doubt about it that the method of consulting, which the President will
adopt, will be to ask wither the Prime Minister or the Governor to table a resolution which
may be discussed in a particular State Legislature which may be affected, so that ultimately
the initiation will be the local legislature and not by the Parliament at all.” Thus Dr.
Ambedkar was clear that to prevent the Parliament to unilaterally misusing its power under
Article 3, any proposal to change the boundaries of a State would have to initiate from the
State Legislature, as it is they who represent the will of the people.

16 | P a g e
26.3 In the present case, the State Legislative assembly of the State of Ashmir was dissolved,
owing to the Governor declaring a breakdown of constitutional machinery of the State,
followed by a proclamation of President’s Rule bringing the State under the control of the
Central Government as per Article 356. The bill was not tabled before the Legislative
Assembly of the State and the elected representatives of the people of the State never
discussed the issue. Even if the bill was tabled before the house, it is inconceivable that any
State Legislature would ever have recommended its own demotion in status. The proviso in
Article 3 was bypassed by maintaining President’s rule in the State so as to avoid any
discussion the State’s legislative assembly. Also, the President or the Governor or the
Parliament can never be an effective substitute for the will of the people for the purpose of
Article 3.

[B.] the Act unconstitutionally downgrade the status of Ashmir from State to that of Union
Territory

27. It is humbly submitted that Ashmir Reorganization Act, 2019 ultra vires Article 3 of the
Constitution as it seeks to downgrade the status of the State of Ashmir into a Union Territory
(with a legislature). Article 3 of the Constitution authorizes the formation of new States, and
the alteration of areas, boundaries or names of existing States, but it does not authorize the
degradation of the status an existing State into a Union Territory. This is made even clearer
by Explanations I and II to Article 3, where the word “state” is to be read to include a “union
territory”, and Parliament’s power is deemed to include “the power to form a new State or
Union territory by uniting a part of any State or Union territory to any other State or Union
territory.” It is respectfully submitted that Article 3 provides a range of powers involving the
inter-se alteration of Union Territories, but conspicuously does not authorize the degradation
of the status of a state into a Union territory.

27.1. This interpretation is supported by the principle of non-retrogression that was set out in
Navtej Johar v. Union of India 2018 10 SCC 1216. According to the principle of non-
retrogression, “the State should not take measures or steps that deliberately lead to
retrogression on the enjoyment of rights either under the constitution or otherwise.” It is
respectfully submitted that the crucial right at stake here is the right to representation, and to

16
ibid

17 | P a g e
 be elected by one’s elected representatives, as set out in NCT of Delhi v. Union of India
supra3.17 Consequently, having once achieved the degree of representation offered by
statehood, the peoples of a state cannot be retrograded to the lesser degree of representation
offered by a Union territory. Voters often choose different Governments at State and at Union
based on their evaluation of which party is better suited to serve national issues and which
party is better suited to handle the issues of local governance. The federal structure means
that States are autonomous units, and the control over matters fundamental to governance of
the State such as public order, police, public health, agriculture etc. are exercised by the
legislature elected by the people of that State. On the other hand, a Union Territory does not
have the same autonomy, it is controlled by the Central Government through an administrator
appointed by the Government and do not typically have a legislative assembly elected by its
people. Even the Union Territories that have elected legislative assemblies do not have
complete autonomy.

27.2. Because, Article 1 of the Constitution of Indiana stipulates that “India, that is Bharat, shall
be a union of States.” Article 1(3) of the Constitution further stipulates that “the territory of
India shall comprise – (a) the territories of the States”; (b) the Union territories specified in
… the First Schedule…”It is therefore submitted that for the purpose of Article 1, “states”
and “union territories” are treated differently, and “states” remains the constituent units of
Indian Union. Consequently, it is respectfully submitted that Article 3 of the Constitution
cannot be read to grant the power to the Union to convert the status of States into Union
Territories, as this power carries with it the necessary implication that the Union could- if it
chose- convert India into a “Union of Union territories” instead of a “Union of States”. It is
respectfully submitted that the framers of the Constitution could not have – and did not- vest
so wide or untrammeled power in the Union Government.

27.3. It is respectfully submitted that this interpretation of Article 1 and 3 is supported by holding
in S.R. Bommai v. Union of India supra,18 where it has been clearly held that “the Courts
should not adopt an approach, an interpretation which has the effect of or tends to have the
effect of whittling down the powers reserved to the states … let it be said that the federalism
in Indian Constitution is not a matter of administrative convenience, but one of principle- the
outcome of our own historical process and a recognition of the ground realities.”

17
ibid
18
ibid

18 | P a g e
27.4. It is respectfully submitted that this interpretation is supported by previous such instances
of State reorganizations, where the movement has always been from the status of Union
Territory to Statehood, and never the other way round.

27.5. This interpretation is further supported by the fact that Union Territories (with legislatures)
have always been the creations of Constitutional amendments, and not under the plenary
powers of Article 3. Examples include Pondicherry (Article 239A) and the National Capital
Territory of Delhi (NCT) (Article 239AA). Indeed, at the time of framing of the Constitution,
the concept of a Union Territory with a legislature did not even exist. It is therefore submitted
that Article 3 could not have been intended to authorize the degradation of State into Union
territory.

27.6. It is respectfully submitted that this has been held a part of multiple judgements, federalism
is a basic feature of the Constitution. The model of federalism followed by the Nation is sui
generis (Durga Das Basu, Constitution of India, 9th edition, vol. 1, p. 622)19. It is sui
generis in the sense of being a pluralistic federation, where different constituent units of
federation can have a different relationship with the Union, based upon their terms of
accession, historical, social, political and cultural circumstances R.C. Poudiyal v. Union of
India, 1994 Supp 1 SCC 32420.This is reflected in Article 371A to 371J, which provide a
special status – in different respects – to different States. It is respectfully submitted that the
principle of pluralistic federalism would be set at naught if one of the two parties to the federal
relationship (i.e. the Union) can unilaterally amend the terms of their relationship, without
even passing through the rigorous amending process under Article 368.

27.7. Because the right to autonomous self-government and the right to identity within the federal
framework are fundamental rights flowing from the right to life and other provisions
contained in Part III of the Constitution. Their manner of removal has made a mockery of
the “procedure established by law” is clearly in violation of fundamental rights and ought to
be struck down forthwith.

28. It is hence respectfully submitted that in light of the interpretation of Article 3 and legal
principles laid down by the above cited judgements, this Hon’ble Court shall declare the
Ashmir Reorganization Act 2019 to be constitutionally invalid.

19
Durga Das Basu, Constitution of India, 9th edition, vol. 1, p. 622
20
R.C. Poudiyal v. Union of India, 1994 Supp 1 SCC 324.

19 | P a g e
 PRAYER

Therefore, in light of the issues raised, arguments advanced and authorities cited, it is
most humbly prayed that in the interest of justice, the Hon’ble Court may be pleased
to:

-I-

Issue an appropriate order declaring Presidential Order Presidential G.S.R. 551(E)

(C.O. 272) unconstitutional, void, and inoperative

-II-

Issue an appropriate order declaring Presidential Order Presidential G.S.R. 562(E)

(C.O. 273) unconstitutional, void, and inoperative

-III-

Issue an appropriate order declaring The Ashmir Reorganization Act 2019

unconstitutional, void and inoperative;

AND/OR

Pass any other writ, order or directions as this Hon'ble Court deems fit in the interests of
justice and in the facts and circumstances of this case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL, AS IN DUTY

BOUND, EVER PRAY

-Sd/-

COUNSELS FOR THE PETITIONERS

20 | P a g e