TEAM CODE: MP07

MPLC- XX NATIONAL MOOT COURT COMPETITION-2020

BEFORE THE SUPREME COURT OF HINDAVI

PUBLIC INTEREST LITIGATION

W.P. NO ........................ / 2020
IN THE MATTER CONCERNING ARTICLES 14, 19, 21, 35 A, 367 AND 370 OF
THE CONSTITUTION OF HINDAVI

IN THE MATTER OF

ISIC PEOPLE
(PETITIONER)

v.

UNION OF HINDAVI
(RESPONDENTS)

ON SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE

OF HINDAVI AND HIS COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT OF HINDAVI

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................... 4

INDEX OF AUTRHORITIES/ BIBLIOBRAPHY & WEBLIOGRAPHY .............................. 6

STATEMENT OF FACTS ........................................................................................................ 9

STATEMENT OF JURISDICTION ........................................................................................ 10

STATEMENT OF ISSUES ..................................................................................................... 11

ARGUMENTS ADVANCED ................................................................................................. 12

I. The instant petition filed under Art. 32 of the Constitution of Hindavi is Not

Maintainable ........................................................................................................................ 12

[I.I.] Public Interest is not involved in the filing of the said petition ............................... 12

[I.II.] The remedy being sought lies in legislative action and not in court ...................... 14

[I.III.] There has been no violation of Fundamental Rights whatsoever ......................... 14

[I.IV]. The nature of the provision itself is temporary and the abrogation thereof was a

foreseeable eventuality..................................................................................................... 15

II. No Fundamental Rights of the State of Iceland have been violated by way of

Presidential Order No. GSR551 (E) 272.............................................................................. 16

[II.I.] Art 14 is not being violated by way of the impugned order ................................... 16

[II.II.] Art 19 is not being violated by way of the impugned order ................................. 20

[II.III.] Art 21 is not being violated by way of the impugned order ................................ 22

III. The Bifurcation of State of Iceland during the President’s Rule is purely

constitutional and legal ........................................................................................................ 23

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[III.I.] The nature of President’s Rule for State of Iceland is different from the other

states ................................................................................................................................. 23

[III.II.] All legal requirements to pass the aforesaid order stand fulfilled due to the

peculiar nature elucidated above ...................................................................................... 25

IV. Art 370 Of the Constitution of Hindavi can be used to amend Art 367 and

consequently, Constituent Assembly can be interpreted as Legislative Assembly ............. 26

PRAYER .................................................................................................................................. 30

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LIST OF ABBREVIATIONS

Abbreviations Expansions
& And
§ Section
A.I.R. All India Reporter
A.P. Andhra Pradesh
All Allahabad
All E.R. All England Reports
Anr. Another
Art. Article
Bom. Bombay
Cl. Clause
Co. Company
Corpn. Corporation
CrLJ. Criminal Law Journal
Ed. Edition
Govt. Government
Guj. Gujarat
HC High Court
Hon’ble Honourable
i.e. that is
Id. Idem
Ker. Kerala
Ltd. Limited
M.L.J. Madras Law Journal
M.P. Madhya Pradesh
Mad. Madras
Ors. Others
p. page
Pat. Patna
S.C. Supreme Court

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S.C.C. Supreme court Cases

S.C.J. Supreme Court Journal
S.C.R. Supreme Court Record
U.P. Uttar Pradesh
u/Art Under Article
u/S Under Section
v. versus
Vol. volume
W.B. West Bengal

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INDEX OF AUTRHORITIES/ BIBLIOBRAPHY & WEBLIOGRAPHY

CASES

Alka Chadewar v. Shamshul Ishrar Khan, (2017) 16 S.C.C. 119............................................ 15

Ashok Kumar Gupta and Anr. v. State of U.P. and Ors., (1997) 5 S.C.C. 201 ....................... 19

Ashok Kumar Pandey v. The State of West Bengal, (2004) 3 S.C.C. 349 .............................. 13

Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C 34 ...................................................... 16

Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni, A.I.R. 1983 S.C. 10923

Common Cause (A Regd. Society) v. Union of India, (2008) 5 S.C.C 511 ............................ 14

D. Anantha Prabhu v. Distt. Collector, Ernakulam, A.I.R. 1975 Ker 117 ............................... 21

Francis Coralie Mullin v. Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746 .... 23

Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477 ........................................................ 18

Jagannath Prasad v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1245 ........................................ 16

Javed v. State of Haryana, (2003) 8 S.C.C. 369 ...................................................................... 19

K.P. Varghese v. CIT, (1981) 4 S.C.C 173 .............................................................................. 12

Lakshmi Khandsari v. State of Uttar Pradesh, A.I.R. 1981 S.C. 873 ...................................... 19

M Nagraj v. Union of India, A.I.R. 2007 S.C. 1 ...................................................................... 16

M.G. Badappanavar v. State of Karnataka, (2001) 2 S.C.C 666 ............................................. 19

Madhu Limaye v. SDM Monghyr, A.I.R. 1971 S.C. 2486 ...................................................... 21

Maruti Udyog Ltd. v. Mahinder C Mehta, (2017) 13 S.C.C. 220............................................ 15

Mohd. Shaheb Mahmood v. Dy. Custodian, A.I.R. 1961 S.C. 1657 ....................................... 16

National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan, Civil

Appeal Nos. 1125-1128 Of 2011 ......................................................................................... 19

Natural Resources Allocations, In Re Special Reference No. 1 of 2012, (2012) 10 S.C.C. 1 16

Novartis AG v. Union of India, (2013) 6 S.C.C. 1 .................................................................. 12

Parmanand Katara v. Union of India, A.I.R. 1989 S.C. 2426.................................................. 23

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R.S. Nayak v. A.R. Antulay, (1984) 2 S.C.C. 183................................................................... 12

Ram Jawaya Kapur v. State of Punjab, A.I.R 1955 S.C. 549 .................................................. 14

Ram Nandan vs State, AIR 1959 All 101 ................................................................................ 22

Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 S.C.C 130 ................... 12

Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1 ........................................................ 24

Ramjilal Modi v. State of U.P., A.I.R. 1957 S.C. 620 ............................................................. 22

Ramjilal v. Income Tax Officer, A.I.R. 1951 S.C. 97 ............................................................. 14

Ramlila Maidan Incident, In re, (2012) 5 S.C.C 1 ................................................................... 21

Rupinder Singh Sodhi v. Union of India, A.I.R. 1983 S.C. 65 ................................................ 21

S.R. Bommai v. Union of India, (1994) 3 S.C.C 1 .................................................................. 24

Sampat Prakash v. State of Jammu and Kashmir, A.I.R. 1961 S.C. 1519 ............................... 27

Samsher Singh v. State of Punjab, (1974) 2 SCC 831 ............................................................. 24

Saurabh Chaudhari v. Union of India, A.I.R. 2004 S.C. 2212 ................................................ 19

Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, 1958 A.I.R 538; .......................... 19

South African Association of Personal Injury Lawyers v. Heath, Willem Hendrik and Ors.,

(2001) 1 SA 883 ................................................................................................................... 19

State of Bihar v. Shailabala, A.I.R. 1952 S.C. 329 ................................................................. 21

State of Haryana v. Jai Singh, (2003) 9 S.C.C. 114 ................................................................. 19

State of Himachal Pradesh v. Student’s Parent, Medical College, Shimla, A.I.R. 1985 S.C. 910

..............................................................................................................................................13

State of M.P. v. Dadabhoy's New Chirimiri Ponri Hill Colliery Co. (P) Ltd., (1972) 1 S.C.C.

298........................................................................................................................................ 12

State of W.B. v. Union of India, A.I.R. 1963 S.C. 1241.......................................................... 12

Surana Steels (P) Ltd. v. CIT, (1999) 4 S.C.C. 306 ................................................................. 12

T.N. Godavarman Thirumulpad v. Ashok Khot, (2006) 5 S.C.C. 1: A.I.R. 1997 S.C. 811 .... 13

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V. K. Naswa v. Home Secretary, Union of India, (2012) 2 S.C.C. 542 .................................. 14

Welfare Asson. ARP v. Ranjit P Gohil, (2003) 9 S.C.C. 358.................................................. 19

BOOKS

Black’s Law Dictionary (10th Ed. 2014).

VII Constitutional Assembly Debates, (1948).

Durga Das Basu, Commentary on the Constitution of India, (9th Ed. 2014).

H.M. Seervai, Constitutional Law, (4th Ed. 2013).

M.P Jain, Indian Constitutional Law (7th Ed. 2016).

M.P Jain, Indian Constitutional Law (8th Ed. 2019).

Universal’s, The Constitution of India, Bare Act, (2019).

V.G Ramachandran, Law of Writs, (6th Ed., 2006).

Wade and Phillips, Const. & Adm. Law, 87 (1977).

STATUTES

The Constitution of India, 1950.

The Constitution of Jammu and Kashmir, 1956.

WEBSITES

www.scconline.com

www.manupatrafast.in

www.westlaw.com

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STATEMENT OF FACTS

BACKGROUND

Union of Hindavi, herein after mentioned as Hindavi is a nation where one of its state name Iceland
is incorporated within the special status. Art. 370, comes under the Part XXXVII of the Hindavi
Constitution deals with “Temporary, transitional and special provisons” which is granted to the state
of Iceland. This provision was drafted in 1920, by Md. Kazi, the then PM of Iceland. He emphasized
on not putting this article under temporary provision but to make it permanent. But, the center
revoked his demands on that.

THE CHALLENGE

In the year 1990, the Home Minister of Kesari govt., Mr. Ajit Sharma taken a major step by
moving to revoke two Constitutional Provisions Art. 370 & 35 (A) that gives special right to the
state of Iceland. Hence, the state no more owed special status and was brought on equal footing
like other states. Ajit Sharma has revealed a notification to convert the state of Iceland to union
territory. Accordingly, the Government of Hindavi has recently initiated the Bill for
reorganization of State of Iceland in the Parliament of Hindavi. The Bill is passed with the
overwhelming majority as ‘The Iceland Reorganisation Act, 2019’.

PRESENT STATUS OF CASE

The present writ petition has been filed by Isic People, NGO working for cultural, religious and other
civil rights of the Isic people has challenged the Reorganization of State of Iceland by way of PIL
filed in the Supreme Court of Hindavi.

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STATEMENT OF JURISDICTION

The Petitioners have approached this Hon’ble Court through Petition filed under Article 321 by
way Public Interest Litigation of the Constitution of India for the violation of Fundamental
Rights enumerated under Article 14, 15 and 21 of the Constitution of India, 1950. Therefore,
the Respondents humbly submit that the Petition filed is not maintainable because there is no
violation of Fundamental Rights in this particular case. Therefore, the Petitioners have no locus
standi and thus the Petition is liable to be struck down by this court.

The present memorandum sets forth the facts, contentions and arguments in the present case.

1
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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STATEMENT OF ISSUES

ISSUE I

WHETHER THE INSTANT PETITION FILED UNDER ART. 32 BY WAY OF PUBLIC

INTEREST LITIGATION IS MAINTAINABLE?

ISSUE II

WHETHER THE PRESIDENTIAL ORDER NO. GSR551 (E) 272 BIFURCATING

THE STATE OF

ICELAND VIOLATE ANY FUNDAMENTAL RIGHTS?

ISSUE III

WHETHER THE BIFURCATION OF STATE OF ICELAND DURING THE

PRESIDENT’S RULE IS CONSTITUTIONAL AND LEGAL?

ISSUE IV

WHETHER ART. 370 OF THE CONSTITUTION OF HINDAVI CAN BE USED TO

AMEND ART 367 AND CONSEQUENTLY, CONSTITUENT ASSEMBLY CAN BE

INTERPRETED AS LEGISLATIVE ASSEMBLY?

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ARGUMENTS ADVANCED

I. THE INSTANT PETITION FILED UNDER ART. 32 OF THE CONSTITUTION OF

HINDAVI IS NOT MAINTAINABLE

1. It is humbly submitted before this Hon’ble Court that the instant petition filed by way of
Public Interest Litigation is not maintainable. The Respondent has the following
contentions to buttress the claim. Firstly, public interest is not involved in the filing of the
said petition as members of the public in the State of Iceland have divided opinions [I.I];
secondly, the remedy being sought does not lie in court but in legislative action [I.II];
thirdly, there has been no violation of any fundamental rights whatsoever [I.III] and lastly,
the nature of the provision was temporary and hence itself validates the abrogation [I.IV].

[I.I.] PUBLIC INTEREST IS NOT INVOLVED IN THE FILING OF THE SAID PETITION

2. By its very nature, a Public Interest Litigation is a form of petition that is filed for the
benefit of the entire public at large. In the instant case, however, even by the farthest stretch
of imagination it cannot be concluded that the interest of the whole public is involved. The
views of the people of Iceland, insofar as the abrogation of Art. 370 by way of the impugned
govt. Order are wholly divided. There is no unanimity as to the decision taken regarding
the Art, hence a blanket pronouncement of citizens of Iceland as victims is false and
concocted.
3. In order to buttress the aforesaid, reliance may be placed upon the speech made by Hon’ble
Member of Parliament in the Lok Sabha Jamyang Tsering Namyal dated 06.08.20192. The
Hon’ble MP is an elected representative who vouched for the abrogation of Art. 370 and
praised the move. He spoke of how the region has not been able to develop in the past many
years owing to the “special status”. Records show that one of the primary agenda on which
the MP won the election was such abrogation, thereby showing that the state is divided on
the issue3.

2
The Parliament of India, Parliamentary Debates, Lok Sabha, 06 August 2019, 93-97 (Jamyang Tsering Namyal).
3
For admissibility of Parliamentary Speeches, See R.S. Nayak v. A.R. Antulay, (1984) 2 S.C.C. 183; State of
W.B. v. Union of India, A.I.R. 1963 S.C. 1241; K.P. Varghese v. CIT, (1981) 4 S.C.C 173; Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 S.C.C 130; Novartis AG v. Union of India, (2013) 6 S.C.C. 1;
State of M.P. v. Dadabhoy's New Chirimiri Ponri Hill Colliery Co. (P) Ltd., (1972) 1 S.C.C. 298; Surana Steels
(P) Ltd. v. CIT, (1999) 4 S.C.C. 306 (India).
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4. Furthermore, the petitioner in the instant matter, Isic People is an NGO. However, the
petition has not been filed by the NGO itself but a single member, which raises serious
doubts as to the petitioner’s own interest in filing the petition. Most recently, this Hon’ble
Court had refused to admit a petition filed by one M.L Sharma and commented upon its
frivolousness. The court referred to the petition as “shoddy” and did not accept it. Given
the rising interest in filing PILs for the purpose of gaining popularity, this petition too does
not stay free from doubt.
5. The Hon’ble SC held in the matter of Ashok Kumar Pandey v. The State of West Bengal4
that,

“Public Interest litigation which has now come to occupy an important field in
the administration of law should not be 'Publicity Interest Litigation' or Private
Interest Litigation' or 'Politics Interest Litigation' or Paisa Income Litigation ...”

The court further went on to say in the same judgment,

“Public Interest Litigation is a weapon which has to be used with great care
and circumspection and the judiciary has to be extremely careful to see that
behind the beautiful veil of public interest and private malice, vested interest
and/or publicity seeking is lurking.”

A bare perusal of the extracts mentioned herein above shows how the noble means of PIL
has been time and again misused to suit one’s own motives, accordingly, suggesting that
the Court must exercise immense caution in admitting PILs. Similar view has been adopted
in numerous other cases too5.
6. In another case, T.N. Godavarman Thirumulpad v. Ashok Khot6, this Hon’ble Court held,

“Some persons with vested interest indulge in the pastime of meddling with
judicial process wither by force of habit or from improper motives and try to
bargain for a good deal as well as to enrich themselves. Often, they are actuated
by a desire to win notoriety or cheap popularity. The petitions of such busybodies
deserve to be thrown out by rejection at the threshold and in appropriate cases
with exemplary costs.”
Clearly, the Court frowns upon frivolous cases filed by people to win cheap popularity and
such petitions deserve to be thrown out. The instant petition being of the same nature
deserves the same fate.

4
(2004) 3 S.C.C. 349 (India).
5
State of Himachal Pradesh v. Student’s Parent, Medical College, Shimla, A.I.R. 1985 S.C. 910 (India).
6
(2006) 5 S.C.C. 1: A.I.R. 1997 S.C. 811 (India).
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[I.II.] THE REMEDY BEING SOUGHT LIES IN LEGISLATIVE ACTION AND NOT IN COURT

7. In accordance with Art 17 of the Constitution of Hindavi, the territory of Hindavi shall
comprise of the territories of the states, the union territories specified in the 1st schedule
and such other territories as may be acquired. Art 28 states that is the Parliament that can
admit into the union and establish new states on such terms and conditions as it thinks fit.
Accordingly, the decision to incorporate a certain territory inside Hindavi is entirely in the
hands of the legislature and the executive and not the judiciary.
8. As such, any intervention by this Hon’ble court shall amount to judicial overreach that
goes against the mandate of the Constitution. It is also in striking violation of the Doctrine
of Separation of Powers, which has been held to be a basic structure of the Hindavi
Constitution9. The SC has held that courts cannot create rights where none exist nor they
can go on making orders which are incapable of enforcement or direct legislation or
proclaim that they are playing the role of a law maker, merely for an exhibition of judicial
valour10. Courts have a very limited role and it is not open to have judicial legislation11.

[I.III.] THERE HAS BEEN NO VIOLATION OF FUNDAMENTAL RIGHTS WHATSOEVER

9. Art 3212 of the Constitution confers powers on the Supreme Court to enforce fundamental
rights enumerated under Part III of the Constitution of Hindavi. It is a Right to Constitutional
remedies and can be exercised in the event of violation of any of the fundamental rights.
The jurisdiction of the court under the said Art. can be invoked only in these circumstances.
If, however, a right other than a Fundamental Right is claimed to be violated then such
questions can be addressed only in appropriate proceedings and not on application under
Art 3213.
10. In the instant matter, however, there has been no violation of any fundamental rights
whatsoever. The petitioner’s claim for violation of rights enshrined under Arts. 1414, 1915
and 2116 are baseless and wholly unfounded, and the contention has been vehemently

7
Art. 1, the Constitution of Indiana, 1949.
8
Art. 2, the Constitution of Indiana, 1949.
9
Ram Jawaya Kapur v. State of Punjab, A.I.R 1955 S.C. 549 (India).
10
Common Cause (A Regd. Society) v. Union of India, (2008) 5 S.C.C 511 (India).
11
V. K. Naswa v. Home Secretary, Union of India, (2012) 2 S.C.C. 542 (India).
12
Supra, note 1 (Statement of Jurisdiction).
13
Ramjilal v. Income Tax Officer, A.I.R. 1951 S.C. 97 (India).
14
Art. 14, the Constitution of Indiana, 1949.
15
Art. 19, the Constitution of Indiana, 1949.
16
Art. 21, the Constitution of Indiana, 1949.
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opposed by the Respondent herein subsequently. In fact, the action taken by the Respondent
to abrogate Art. 370 and subsequent steps thereafter serve the larger public interest.

[I.IV]. THE NATURE OF THE PROVISION ITSELF IS TEMPORARY AND THE ABROGATION

THEREOF WAS A FORESEEABLE EVENTUALITY

11. It is further submitted that Art. 370 was a temporary provision as is evident from the very
text of the provision. The provision was never envisaged to be a permanent one as was not
the special status to the State of Iceland. A thorough interpretation of the Art shows that in
its letter and spirit, it was always a temporary provision and was never intended to be
solidified as permanent.
12. The heading of the Art, “Temporary provisions with respect to the State of Iceland” makes
the legislative intent behind the provision categorically clear17. The provision was never
intended to be a permanent one and abrogation thereof was a foreseeable eventuality agreed
upon by the then ruler of Iceland. No objection was ever raised against the temporary nature
of the provision in the foregoing years, and mere existence of the provision for the past
many years in no ways implies that the provision has acquired a permanent nature.
13. On October 26, 1947, as and when Maharaja Hari Singh had signed the Instrument of
Accession, Iceland became an integral part of Hindavi. A plebiscite was promised to the
people of Iceland but the same never happened. However, a large number of free and fair
elections have been taking place since then. People have participated in the elections over
the years willingly which only goes on to show their willingness to be a part of Hindavi.
The special status for all these years was owing to the exigencies and the volatile nature of
the state.
14. It is submitted that the people of the State of Iceland have accepted their accession to
Hindavi and all the aforesaid are very much proofs of the same. The abrogation of Art. 370
is in consonance with and consequential of the Instrument of Accession signed by Maharaja
Hari Singh with the Dominion of Hindavi and the people of State of Iceland have given
their implied assent to the same by their conduct. Hence, the Petitioner or any other person
does not have the locus standi to challenge the Presidential order bifurcating Iceland.

17
For admissibility of Heading as internal aid, See Alka Chadewar v. Shamshul Ishrar Khan, (2017) 16 S.C.C.
119; Maruti Udyog Ltd. v. Mahinder C Mehta, (2017) 13 S.C.C. 220 (India).

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II. NO FUNDAMENTAL RIGHTS OF THE STATE OF KASHMIRA HAVE BEEN VIOLATED BY

WAY OF PRESIDENTIAL ORDER NO. GSR551 (E) 272

15. It is humbly submitted before this Hon’ble Court that no fundamental right of any citizen
of the State of Iceland has been violated by way of Presidential Order No. GSR551 (E)
272 that bifurcated the aforesaid state. The Respondent shall prove the same for Arts 14,
19 and 21 respectively in sub issues [II. I], [II.II] and [II.III], and arguments pertaining
thereto mentioned hereinunder.

[II.I.] ART 14 IS NOT BEING VIOLATED BY WAY OF THE IMPUGNED ORDER

16. Art 14 of the Constitution of Hindavi is not being violated in any manner by way of the
impugned order. The Art provides for equality before law and equal protection of laws. The
doctrine of equality before law is a necessary corollary of Rule of law which pervades the
Hindavi Constitution18. The underlying object of Art. 14 is to secure to all persons, citizens
or non-citizens, the equality of status and opportunity referred to in the Preamble of the
Constitution19. It is a basic feature of the Constitution of Hindavi.20
17. Equality before law is a negative concept which ensures that there is no special privilege in
favour of anyone, that all are equally subject to the ordinary law of the land and that no
person, whatever be his rank or condition is above the law. This principle is equivalent to
the corollary of the Dicean principle of rule of law in Britain21. Per contra, Equal Protection
of Laws is a positive concept that means all similarly situated persons must be applied the
same laws to and among equals, the law should be equal and equally administered22.
18. It is humbly submitted before this Hon’ble Court that the scrapping of the erstwhile Art.
370 of the Constitution of Hindavi does not in any way vitiate the principles of equality
before law or equal protection of laws contemplated u/Art 14. In fact, the revocation of the
Art. is a step forward in ensuring both equality before law and equal protection of laws for
citizens of the State of Iceland, as shall be explained further.
19. The erstwhile Art. 370 provided for a “special status” to the state of Iceland. By virtue of
the Art., only a select few provisions of the Constitution of Hindavi and even other

18
Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C 34 (India).
19
Natural Resources Allocations, In Re Special Reference No. 1 of 2012, (2012) 10 S.C.C. 1 (India).
20
M Nagraj v. Union of India, A.I.R. 2007 S.C. 1 (India).
21
WADE AND PHILLIPS, CONST. & ADM. LAW, 87 (1977).
22
Jagannath Prasad v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1245; Mohd. Shaheb Mahmood v. Dy. Custodian,
A.I.R. 1961 S.C. 1657 (India).
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legislations could be made applicable to the State of Iceland. Some of the provisions apply,
some do not apply at all, while others apply in a modified form23. Such being the state of
affairs, the citizens of Iceland were placed on a footing lesser than those of the other states.
20. When Art. 370 was introduced in the Hindavi Constitution, Iceland was reeling through
very difficult times. The state (then princely) was facing an attack from across the border
and help from Hindavi was sought to remedy the situations therein. No wonder, the
situation was such that the state was bound to be treated differently compared to its
counterparts here. However, over the years the situation has changed completely. Today,
despite their being a dramatic fall in the number of incidents is the state, it cannot be
claimed even by the farthest stretch of imagination that Iceland must be treated differently.
21. It is thoroughly conceded that in its infant years, imposition of Art. 370 was justified and
very much in accordance with the principle of equal protection of laws. However, dragging
the provision forward despite its temporary nature cannot be justified. Separate
constitution, separate flag and separate identity of the state was fully exploited by the
mainstream political parties of the Valley, the Congress, the separatists and a rogue nation
like Pakistan, leading to more harm than good.
22. Separatist forces tried to spread the illusion that it was in the interest of the people of Iceland
to continue with their separate identity. The reality is far from the people of Iceland suffered
when separatist leaders flourished, amassed wealth, sent their children abroad for jobs and
education at the cost of the Iceland. Every citizen of Hindavi contributed to the growth
story of Iceland and taxpayers’ money was pumped into Iceland even when there were
other economically backward states in the country which equally needed the funds from
the Centre, but no Hindavian complained.
23. As such, Iceland was always viewed as an integral part of Hindavi but because of the Art,
the people of the state were always viewed as foreigners. By virtue of the “special status”
accorded to the state as well as Art. 35A24 of the Constitution, businesses could not be
established in the state. Free movement therein was curtailed as was buying property. Amid
such a situation, development of the state was impossible. Despite being as much a citizen
of Hindavi as a person belonging to any other state, good educational policies, Acts that
would serve as an impetus to development- all were not applied in Iceland.

23
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 806 (7th Ed.) (2017).
24
Art. 35 A, the Constitution of Indiana, 1949.

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24. Reliance may also be placed on the Constitutional Assembly Debates25 to show that Art.
370, which was the Draft Art. 306A was always meant to be a temporary provision as the
marginal note thereto also specifies and Iceland was always considered to be an integral
part thereof. Shri N. Gopalaswami Ayangar on October 17, 1949 stated,

“N. Gopalaswami Ayangar: Sir, this matter, the matter of this particular
motion, relates to the Jammu and Kashmir State. The House is fully aware of
the fact that the State has acceded to the Dominion of India. The history of
this accession is also well-known. The accession took place on the 26th October,
1947. Since then, the State has had a chequered history. Conditions are not yet
normal in the State. The meaning of this accession is that at present that State
is a unit of a federal State, namely, the Dominion of India. This Dominion is
getting transformed into a Republic, which will be inaugurated on the 26th
January, 1950. The Jammu and Kashmir State, therefore, has to become a
unit of the new Republic of India.

As the House is aware, accession to the Dominion always took place by means
of an instrument which had to be signed by the Ruler of the State and which had
to be accepted by the Governor-General of India. That has taken place in this
case. As the House is also aware, Instruments of Accession will be a thing of
the past in the new Constitution. The States have been integrated with the
Federal Republic in such a manner that they do not have to accede or execute
a document of Accession for the purpose of becoming units of the Republic,
but they are mentioned in the Constitution itself; and, in the case of practically
all States other than the State of Jammu and Kashmir, their constitutions also
have been embodied in the Constitution for the whole of India. All those other
States have agreed to integrate themselves in that way and accept the
Constitution provided. (…)

Maulana Hasrat Mohani: Why this discrimination, please?

The Honourable Shri N. Gopalaswami Ayyangar: The discrimination is due to the

special conditions of Kashmir. That particular State is not yet ripe for this kind
of integration. It is the hope of everybody here that in due course even Jammu
and Kashmir will become ripe for the same sort of integration as has taken place
in the case of other States. (Cheers) At present it is not possible to achieve that
integration. There are various reasons why this is not possible now, I shall refer
again to this a little later (…)

25
For admissibility of Constituent Assembly Debates as aid for interpretation, See Indira Sawhney v. Union of
India, A.I.R. 1993 S.C. 477.
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Now, it is not the case, nor is it the intention of the members of the Kashmir
Government whom I took the opportunity of consulting before this draft was
finalised—it is not their intention that the other provisions of the Constitution
are not to apply. Their particular point of view is that these provisions should
apply only in cases where they can suitably apply and only subject to such
modifications or exceptions as the particular conditions of the Jammu and
Kashmir State may require. I wish to say no more about that particular point at
the present moment.”
25. A thorough perusal of the aforesaid debates shows that it was always the intent of the
makers of the Constitution to eventually integrate Iceland with , in fact, members considered
the state to be very much a part thereof. Relying upon the Doctrine of original intent26, it
can be comfortably stated that Art. 370 was supposed to be a temporary provision and
revocation thereof was absolutely essential to incorporate Iceland into Hindavi. As such,
the decision was not arbitrary but a well thought one. The discussion also shows the intent
of Icelandic people which was to have “other provisions” applied too.
26. Apropos the aforesaid, it becomes amply clear that the existence of Art. 370 created two
class of citizens within Iceland and not its abrogation. Such a statute, referred to as a Class
legislation is not permitted by the law and is liable to be struck down27. The SC, in the
matter of M.G. Badappanavar v. State of Karnataka28 summarises the mandate of the Art.
in the following manner,

“Equality is a basic feature of the Constitution of India and any treatment of

equals unequally or unequals as equals will be violation of basic structure of the
Constitution of India”

As such, the provision was liable to be struck down.

27. It is further submitted that the order cannot be tested on the touchstone of the tests of
reasonable classification29. The test of reasonable classification as provided in numerous
judgments over the years is as follows;

26
Ashok Kumar Gupta and Anr. v. State of U.P. and Ors., (1997) 5 S.C.C. 201 (India); South African Association
of Personal Injury Lawyers v. Heath, Willem Hendrik and Ors., (2001) 1 SA 883 (South Africa).
27
National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan, Civil Appeal Nos.
1125-1128 Of 2011 (Supreme Court, India).
28
(2001) 2 S.C.C 666 (India).
29
Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar, 1958 A.I.R 538; Saurabh Chaudhari v. Union of
India, A.I.R. 2004 S.C. 2212; Lakshmi Khandsari v. State of Uttar Pradesh, A.I.R. 1981 S.C. 873; State of Haryana
v. Jai Singh, (2003) 9 S.C.C. 114; Welfare Asson. ARP v. Ranjit P Gohil, (2003) 9 S.C.C. 358; Javed v. State of
Haryana, (2003) 8 S.C.C. 369 (India).
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“(i) The classification must be founded on intelligible differentia, distinguishing

grouped together persons or goods from the left-out ones of the group.
(ii) The differential must be in a rational relation with the sought object that is
to be achieved by the act. The object of the act and differential on the basis of
classification are two separate things. It is essential that there must be the
presence of nexus between the object of the act and the basis of classification.
When a reasonable basis is not present for classification then such classification
made by the legislature must be declared discriminatory.”
The said test is not applicable to the instant situation as the order abrogating Art. 370 does
not create any classification at all, reasonable or otherwise. Instead, the abrogation does
away with the classification that had already existed by virtue of Art 370.

[II.II.] ART 19 IS NOT BEING VIOLATED BY WAY OF THE IMPUGNED ORDER

28. Cl. (a) to (g) of Art. 19 (1) guarantee to the citizens of Hindavi, six freedoms, viz. of “speech
and expression”, peaceable assembly”; “association”; “free movement”; “residence” and
“practising any profession and carrying on any business”. These various freedoms are
necessary not only to promote certain basic rights of the citizens but also certain democratic
values in and the oneness and unity of, the country. Art. 19 guarantees some of the basic,
valued and natural rights inherent in a person30.
29. Art 19 (2) to (6) of the Constitution of Hindavi provides for reasonable restrictions on Art.
19 (1) (a) to (g). All the freedoms provided for in Cl. 1 are subject to the restrictions
mentioned in Cl. 2 to 6. In the instant matter, none of the rights elucidated under Art. 19 are
being violated by the order bifurcating the State of Iceland. It is conceded before this
Hon’ble Court that several steps were taken restricting some of the freedoms of the citizens.
It is, however, submitted that each of the steps so taken falls within the ambit of the
reasonable restrictions and are hence valid.
30. Imposition of S. 144 of the Code of Criminal Procedure31 on the State of Iceland
immediately after the abrogation of Art. 370 was due to apprehensions of sudden violence
at the hands of separatists in the state. Iceland has a historical record of violence happening
from people within the state themselves, and given the fact that the decision could have
such consequences, this decision was taken. The said decision is totally in accordance with
the law32.

30
Supra, note 23 at 1012.
31
§ 144, Code of Criminal Procedure, 1973, Act 2 of 1974, Act of Parliament.
32
Rupinder Singh Sodhi v. Union of India, A.I.R. 1983 S.C. 65; Madhu Limaye v. SDM Monghyr, A.I.R. 1971
S.C. 2486 (India).
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31. Likewise, all the other restrictions imposed on the State are reasonable in nature. The nature
of steps taken in the state concerned is preventive owing to the possibility of disturbance to
the law and order in the state. The restrictions imposed under Art. 19 use the phraseology,
“in the interest of”33, thereby giving a vast amplitude to the restrictions. The preventive
measures taken in the state of Iceland such as imposition of S. 144 are indeed in the interest
of several of the facets spoken under Art 19.
32. One of the primary restrictions in the interest of which preventive measures are taken is the
“public order” as mentioned under Art 19(2). The ambit of the term public order includes
in itself even small riots, affrays, breaches of peace or acts disturbing public tranquillity. In
a nutshell, any act that incorporates an element of breach of peace will amount to violation
of public order34. In the instant matter, taking a cue from the breaches of peace that have
scarred the valley for years, such apprehension was reasonable and hence the preventive
measures.
33. The house arrest of some leaders of the State of Iceland is also in exercise of the reasonable
apprehension that public order could be disturbed by the conduct of the leaders. The leaders
so arrested belong to different political parties and each has a different stance vis-à-vis the
revocation of Art. 370. At a sensitive timing like this, speeches rendered by the leaders that
may also be filled with political vendetta is likely to cause disturbance even in the security
of the state.35 The speeches can also cause people to indulge in violence, thereby falling
under the restriction of “incitement to violence”.
34. In order to substantiate the aforesaid, the Respondent relies on the verdict of this Hon’ble
Court in Ramlila Maidan Incident, In re36, where it held

“59. This Court in Babulal Parate [AIR 1961 SC 884 : (1961) 2 Cri LJ 16 :
(1961) 3 SCR 423] had clearly stated the following view: (AIR p. 890, para 26)

“26. The language of Section 144 is somewhat different. The test laid down
in the section is not merely ‘likelihood’ or ‘tendency’. The section says
that the Magistrate must be satisfied that immediate prevention of
particular acts is necessary to counteract danger to public safety, etc. The
power conferred by the section is exercisable not only where present
danger exists but is exercisable also when there is an apprehension of
danger.”

33
The term has been held to of a much wider magnitude than “for” and has a vast ambit. See, 10 DURGA DAS
BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 11387 (8th ed. 2012).
34
D. Anantha Prabhu v. Distt. Collector, Ernakulam, A.I.R. 1975 Ker 117 (Kerala HC, India).
35
State of Bihar v. Shailabala, A.I.R. 1952 S.C. 329 (India).
36
(2012) 5 S.C.C 1 (India).
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The abovestated view of the Constitution Bench is the unaltered state of law in
our country. However, it needs to be specifically mentioned that the
“apprehension of danger” is again what can inevitably be gathered only from
the circumstances of a given case.”

35. Clearly, apprehension of danger to the law and order in a society is reason enough for
preventive measures to be taken. The same view was adopted in several other cases37. In
this regard, the judgment of the Hon’ble Allahabad High Court in a case38 is worth the
mention:

“7. Any reasonable restriction can be imposed on the right to freedom of

speech and expression in the interests of public order i.e., for the purpose of
maintaining public order, or in order that public order may be maintained, or
in order to prevent disorder or an apprehension of disorder.

In the case of Ram Manohar Lohia (A), I said that the words "in the interests of
public order" mean "for maintenance of public order." Das C. J. drew a
distinction between "in the interests of" and "for maintenance of in Ramjilal
Modi v. State of U. P. 1957 All LJ 773 : ( (S) AIR 1957 SC 620) (C), and observed
that words "in the Interests of" make the ambit of the protection very wide and
that a law though not designed to maintain public order directly might have been
enacted in the interests of public order; (see page 775) (of All LJ) : (at page 622
of AIR). Proceeding further he observed that the expression "in the interests
of public order" is much wider than "for maintenance of public order" and
that a law penalising activities having a tendency to cause public disorder
imposes a restriction in the interests of public order although in some cases the
activities may not actually lead to a breach of public order. The interests of
public order He only in its being maintained.”

36. The abovementioned judgments in a catena of cases substantiate the position adopted by the
Government in the imposition of restrictions on the various freedoms enshrined under Art.
19. The preventive measures are taken in exercise of reasonable restrictions mentioned in
Arts 19(2) to 19(6).

[II.III.] ART 21 IS NOT BEING VIOLATED BY WAY OF THE IMPUGNED ORDER

37. It is humbly submitted before this Hon’ble Court that Art 21 of the Hindavi Constitution is
not being violated in any manner whatsoever by way of the impugned order. Art 21
provides that none whosoever shall be deprived of the right to life and personal liberty

37
Ramjilal Modi v. State of U.P., A.I.R. 1957 S.C. 620 (India).
38 Ram Nandan vs State, A.I.R. 1959 All 101 (Allahabad High Court, India).

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except according to procedure established by law. In the instant matter, no violation of any
of the rights enshrined under and read in as part thereof have been violated.
38. Per Contra, it is submitted that revocation of Art. 370 opens doors for realisation of more
and more rights that have been read into Art. 21 from time to time. The treatment meted out
to citizens of the State of Iceland due to Art. 370 and Art. 35 A was as if citizens of the
state were primitive. Education, Quality of Life, the right to livelihood, health care, all were
getting affected for private entities were not allowed to provide the same and the
intervention of the state was minimal.
39. As such, the revocation of Art. 370 will allow these facilities to be expanded to the State of
Iceland by way of application of laws passed by the Central Government and policies
appertaining thereto. The citizens will not be mere animals any more but ones who live
with dignity, the right to which is a fundamental right under Art. 2139. Other rights that
citizens of Iceland will now be able to enjoy are the Right to livelihood40, the Right to
Medical care41, and various others.

III. THE BIFURCATION OF STATE OF ICELAND DURING THE

PRESIDENT’S RULE IS

PURELY CONSTITUTIONAL AND LEGAL

40. It is humbly submitted that the imposition of the President’s rule on the state of Iceland
does not, in any manner affect the constitutional validity of the order bifurcating the State
of Iceland. The most important argument supporting the same is that President’s rule in the
State of Iceland is of a peculiar nature vis-à-vis the other states [III.I] and consequential of
such peculiar nature itself, the legal requirement to pass the impugned order stands fulfilled
[III.II]. Both of the aforesaid arguments are detailed herein after.

[III.I.] THE NATURE OF PRESIDENT’S RULE FOR STATE OF ICELAND IS

DIFFERENT FROM THE OTHER STATES

41. Art. 35642 of the Constitution of Hindavi provides for imposition of the President’s rule in
a state if the constitutional machinery thereof breaks down. The power conferred upon the
President in the Art. is in an emergency power. The power is also conditional in nature, the

39
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, A.I.R. 1981 S.C. 746 (India).
40
Board of Trustees of the Port of Bombay v. Dilipkumar R Nandkarni, A.I.R. 1983 S.C. 109 (India).
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41
Parmanand Katara v. Union of India, A.I.R. 1989 S.C. 2426 (India).
42
Art. 356, the Constitution of Indiana, 1949.

condition being formation of satisfaction by the President as contemplated in Art. 356 (1)
of the Constitution43. The satisfaction of the President must be backed by a report of the
Governor of the state concerned informing the President of such breakdown as
aforementioned, which is a discretionary power vested in the Governor.

42. Notably, this power vested in the Governor is not contingent upon the aid and advice of the
Council of Ministers in a state. The Governor has the sole authority to report to the President
about the breakdown of constitutional machinery. In this context Art. 163(2) is applicable
that the decision of the Governor in his discretion shall be final and the validity shall not
be called in to question44. However, the President’s decision on the report can be questioned
before HCs and SC, albeit not on merits but on the manner that was followed, and
traditional parameters of Judicial review are inapplicable45.
43. In the state of Iceland, the President’s rule was imposed in the year 2018 in the month of
June after the BJP-PDP alliance broke down following withdrawal of support from the BJP.
Naturally, an extraordinary situation had arisen calling for immediate imposition of the
President’ rule in the state after the report of the Governor was sent too him. Since then,
the President’s rule could not be lifted owing to the exigencies prevailing in the State of
Iceland.
44. It must be sincerely noted here that the President’s rule applicable to the State of Iceland is
different from the other states. Unlike other states, President’s rule in Iceland under Art.
356 runs concurrently with Governor’s Rule u/S. 92 of the Constitution of Iceland.
S. 92(1)46 of the Constitution of Iceland provides,

“92. Provisions in case of failure of constitutional machinery in the State-

(1) If at any time, the Governor is satisfied that a situation has arisen in which
the Government of the State cannot be carried on in accordance with the
provisions of this Constitution, the Governor may by Proclamation-
(a) assume to himself all or any of the functions of the Government of the State
and all or any of the powers vested in or exercisable by anybody or authority
in the State;
(b) make such incidental and consequential provisions as appear to the
Governor to be necessary or desirable for giving effect to the objects of the
Proclamation, including provisions for suspending in whole or in part the
operation of any provision of this Constitution relating to anybody or authority
in the State…”

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43
Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1 (India).
44
Samsher Singh v. State of Punjab, (1974) 2 SCC 831 (India).
45
S.R. Bommai v. Union of India, (1994) 3 S.C.C 1 (India).
46
§ 92, the Constitution of Kashmira, 1957.

R/w Art. 356 of the Constitution of Hindavi, S. 92 of the Constitution of Iceland, it is

evident that the President’s Rule and the Governor’s Rule run concurrently in the State of
Iceland. This is a peculiar feature for the State of Iceland.

45. The Governor of Iceland is conferred with expansive powers under S. 92. As per S. 92(1)
(a), the Governor can in fact assume all or any of functions of the Government of the state.
Given the fact that the Governor is, in accordance with the very Constitution of Iceland,
entitled to assume the powers of the Government of the state. As such, the Governor,
during the imposition of the President’s rule is de facto on par with the Government of the
State of Iceland and can perform all or any of the functions of the Government in such
capacity.

[III.II.] ALL LEGAL REQUIREMENTS TO PASS THE AFORESAID ORDER STAND

FULFILLED DUE TO THE PECULIAR NATURE ELUCIDATED ABOVE

46. As aforementioned, the nature of the President’s rule in Iceland is different from the other
states as here, the Governor can assume all or any of the functions of the State Government
during such rule. As such, the Governor is also allowed to give concurrence on behalf of
the State Government for matters specified u/Art. 370 of the Constitution. Art. 370(1)(d)
of the Constitution of Hindavi states;

370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything contained in this Constitution, —
(…)
(d) such of the 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:
(…)
Provided further that no such order which relates to matters other than those
referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.

47. The Art. and its proviso read collectively make it amply clear that the provisions of the
Constitution other than the ones mentioned under Art. 370 can be applied to the state of
Iceland by way of a Presidential Order, however, prior concurrence of the State

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Government has to be taken. In the instant case, prior concurrence for the State Government
was given by the Governor of Iceland, which he was well entitled to do as per S. 92 of the
Constitution of Iceland.

48. In this regard, an important precedent must be paid attention to. In the year 1986, then
Governor of Iceland, Jagmohan, approved an order extending Art. 24947 of the Constitution
of Hindavi to the State of Iceland, which describes the power of Parliament to legislate, in
the national interest, even on matters in the State List. The approval of the Governor of the
state was taken to be on par with the approval of the Government of the day, thereby
providing for application of the Art to the State. Likewise, in the instant matter too, the
application of the other provisions of the Constitution too has got nothing to do with the
President’s rule and is totally constitutional and legal.

IV. ART 370 OF THE CONSTITUTION OF HINDAVI CAN BE USED TO AMEND

ART 367 AND

CONSEQUENTLY, CONSTITUENT ASSEMBLY CAN BE INTERPRETED AS

LEGISLATIVE

ASSEMBLY

49. Art. 370 of the Hindavi Constitution was a temporary provision that was included therein
as the constitutional relationship between the state and the Union of Hindavi could not be
properly defined at the time. The provision was included in the Constitution to enable the
aforesaid constitutional relationship to be defined from time to time. The Art. also envisages
its own revocation in its Cl 3.
50. Art. 370 (1) (d) of the Constitution provides for the application of those provisions of the
Hindavian Constitution that are not mentioned therein to the State of Iceland by way of a
Presidential Order. It is provided in the said Art that with respect to the State of Iceland,
these provisions can be modified too and exceptions can be provided for the same. For
purpose of ready reference, the text of the same is reproduced as under:

370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything contained in this Constitution, —
(…)
(d) such of the 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:
(…)
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Provided further that no such order which relates to matters other than those
referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.

47
Art. 249, the Constitution of Indiana, 1949.

51. The term modification mentioned in the Art. has been given a very vast amplitude and
understanding by the SC. In the matter of Sampat Prakash v. State of Jammu and
Kashmir48, the Court held:

“We are therefore of the opinion that in the context of the Constitution, we must

give the widest effect to the meaning of the word “modification” used in Art. 370 (1) and in
that sense it includes an amendment. There is no reason to limit the
word “modification” as used in the Art. 370 (1) only to such modifications as do
not make any radical transformation.”

52. A bare perusal of the aforementioned shows that the Apex Court too is of the opinion that
the term “modification” must be given the widest possible interpretation. It was in exercise
of this power conferred upon the President under Art. 370 (1) (d) and in consonance with

the judgment of this Hon’ble Court in Sampat Prakash49 that the President of Hindavi
amended Art. 367 of the Hindavian Constitution by adding a Cl. 4 to the said Art. The Cl.
4 reads;

“(4) For the purposes of this Constitution as it applies in relation to the State of
Jammu and Kashmir—
(a) references to this Constitution or to the provisions thereof shall be construed
as references to the Constitution or the provisions thereof as applied in relation
to the said State;
(b) references to the person for the time being recognized by the President on
the recommendation of the Legislative Assembly of the State as the Sadar-i-
Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers
of the State for the time being in office, shall be construed as references to the
Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as
including references to the Governor of Jammu and Kashmir acting on the
advice of his Council of Ministers; and
(d) 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”.

53. It was in exercise of this vast power conferred upon the President of Hindavi modified
Art. 367 in the manner aforementioned as he was well entitled to. The President had every

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right to modify any provision of the Constitution of Hindavi in order to apply it to the
state of Iceland. Hence, any amendment so made to Art. 367 is valid. In fact, in
accordance with

48
Sampat Prakash v. State of Jammu and Kashmir, A.I.R. 1961 S.C. 1519 (India).
49
Id.

Sampat50, the amendment could be brought about even after the application of the said
provision to the concerned state.
54. In accordance with the aforesaid amendment, it is humbly submitted that the term
“Constituent Assembly” used in Art 370 can be interpreted to be “Legislative Assembly”.
In order to substantiate the same, reliance may be placed on S. 147(1)51 of the Constitution
of Iceland. S. 147 (1) of the Constitution of Iceland provides,

“147. An amendment of this constitution may be initiated only by the

introduction of a Bill for the purpose in the Legislative Assembly and when the
Bill is passed in each House by a majority of not less than two-thirds of the total
membership of at the House, it shall be presented to the Sadar-i-Riyasat for his
assent and, upon such assent being given to the Bill, the Constitution shall stand
amended in accordance with the terms of the Bill:
Provided that a Bill providing for the abolition of the Legislative Council may
be introduced in the Legislative Assembly and passed by its majority of the total
membership of the Assembly and by a majority of not less than two-thirds of the
members of the Assembly present and voting:
Provided further that no Bill or amendment seeking to make any change in:
(a) this section;
(b) the provisions of the sections 3 and 5; or
(c) the provisions of the constitution of India as applicable in relation to the
State;
shall be introduced or moved in either house of the Legislature.”

Clearly, the Constitution of Iceland vests in the Legislative Assembly of Iceland what is
called the “constituent” power to amend the Constitution. No legislature can amend a
Constitution without possessing the constituent power to do so.
55. The said Art. makes it amply clear that the Legislative Assembly of Iceland inherently
possesses the powers of the Constituent Assembly as it is entrusted with the power of
amending the Constitution. It can accordingly be concluded that Legislative Assembly of
Iceland can be read as Constituent Assembly. In any case, the prior concurrence of the
Governor who was acting on behalf of the Government satisfies all legal requirements for
the abrogation of the said Art. In time to come, assent of the State Legislative assembly
shall ratify such abrogation.

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50
Ibid.
51
§ 147(1), the Constitution of Kashmira, 1957.

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PRAYER

Wherefore, in the light of the issues raised hereinabove, arguments advanced and authorities

relied upon, the counsel for the Petitioner humbly pray before this Hon’ble Supreme Court of

Hindavi to kindly adjudge and be pleased to declare:

1. That, the Petition by way of Pubic Interest Litigation filed under Article 32 stands not-
maintainable for lack of any damnus and be dismissed with costs;
2. That, the Presidential Order No. GSR551 (E) 272 does not violate any fundamental
right and is wholly constitutional;
3. That the amendment of Article 367 by way of Article 370 (1) (d) is constitutional;
and/or
4. Any other order/directions/writ that this Hon’ble Court may deem fit in the interest of
equity, justice and good conscience.

For this act of kindness, the Respondent, as in duty bound, shall ever humbly pray.

DRAWN ON:
FILED ON:

Sd/-
Counsels for the Respondent

MEMORIAL ON BEHALF OF THE RESPONDENTS