BEFORE

THE HON’BLE SUPREME COURT OF INDIANA

WRIT JURISDICTION

WRIT PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

W. P. No. __________OF 2016

IN THE MATTER BETWEEN

Ms.Mehbooba Sheikh &Ms.Haseena Khatoon&Ors……..................................PETITIONER

V.

Republic of Indiana……………………...............................................................RESPONDENT

SUBMISSION ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS......................................................................................III

2. INDEX OF AUTHORITIES.........................................................................................III

i. ARTICLES AND JOURNALS…......................................................III

ii. BOOKS................................................................................................III

iii. CASE LAWS.......................................................................................V

a. INDIAN CASE LAWS......................... ...................................V

iv. STATUTES.............................................................................................VI

3. STATEMENT OF FACTS.............................................................................................VII

4. STATEMENT OF JURISDICTION..............................................................................1

5. QUESTIONS PRESENTED..........................................................................................2

6. SUMMARY OF PLEADINGS......................................................................................3

7. PLEADINGS..................................................................................................................6

8. PRAYER........................................................................................................................17

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 LIST OF ABBREVIATIONS

AIR All India Reporter

SC Supreme Court

SCC Supreme Court Cases

ILR Indian Law Reports

CRM-M Criminal Main

INDEX OF AUTHORITIES

ARTICLES AND JOURNALS

1. Arvind singh@ Ghoga vs. State of Punjab__ DEVIKA AGARWAL, PUNJAB
AND HARYANA HC SEC 121 OPEN TO MISUSE BY TERMING
INCITEFUL POSTS ON SOCIAL MEDIA AS ‘WAGING WAR’ AGAINST
INDIA,FIRST POST (JUNE 14, 2018), Punjab and Haryana HC leaves Sec 121
open to misuse by terming inciteful posts on social media as 'waging war' against
India-India News , Firstpost

BOOKS

1. PM BAKSHI,The Constitution of India,1997

2. S.N Mishra Constitutional Law

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 3. BM GANDHI, INDIAN PENAL CODE, 4TH EDITION,2017

4. BATUK LAL, INDIAN PENAL CODE, THIRD EDITION, 2015

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 CASE LAWS

INDIAN CASE LAWS

1. Arvind singh@ Ghoga vs. State of Punjab CRM-M No.43622 of

2017

2. Bal gangadhar Thilak vs. Emperor (1917) 19 BCOM 211

3. Babulal Parate v State of Maharashtra AIR 1961 SC 884

4. G.D Savarkar v. Emperor (1909) 12 B.com LR 105

5. Gulam Abbas v State of UP 1993 AIR 1267

6. Mohd. Ajmal Amir Ksab v. state of Maharashtra (2012) 9 SCC 1

7. Prem Nath Kaul v State of Jammu& Kashmir AIR 1959 SC 749

8. State bank of India v Santhosh Gupta AIR 2017 SC 25

9. State (NCT of Delhi) v. Navjot sandhu (2006) SCC (Cri) 1715

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 STATUTES

1. The Constitution of India, 1950

2. The Code of Criminal Procedure, 1973

3. The Code of Civil Procedure, 1908

4. The Indian Penal Code, 1860

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 STATEMENT OF FACTS

1.Republic of Indiana is a Constitutional Republic in Central Asia comprising of 28

states, each with a substantial degree of control over its own affairs, and 8 less fully
empowered Union Territories. Arayapur is the National Capital Territory of Indiana.
With roughly one-sixth of the world’s total population, Indiana is the second most-
populous country in the world. The Constitution of Indiana describes it as a,Union of
States “bound together by a unique federal structure. This federal structure has
evolved organically over the years, based on the needs, requirements, and history of
Nation. The framers of the Indianan Constitution, in their wisdom, believed that
national integration is best served by a pluralistic federal model.
.

2.It is known from archaeological evidence that a highly sophisticated urbanized culture.
The Indianan Civilization‟ dominated the north-western part of the subcontinent from
about 2600 to 2000 BC. From that period onwards, Indiana functioned as a virtually
self- contained political and cultural arena, which gave rise to a distinctive tradition that
was associated primarily with Hinduism, the roots of which can largely be traced in the
Indianan Civilization. Other religions originated in Indiana though their presence there
is now quite small.

3.Before independence, Indiana was divided into 565 Princely States which believed in
independent governance, and this was the biggest obstacle in building strong Indiana.
At this time, Indiana had three types of States:
i. Territories of British India

ii. Princely States

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 iii. The Colonial Territories of France and Portugal.

4.After 1858, Indiana officially became a British Colony as British Crown took control
of Indiana from East Indianan Company. The British Crown appointed Secretary of
State for Indiana and The Indianan Council, which had only advisory powers, aided
him. Indiana was divided into three administrative zones and a number of administrative
and legal changes were introduced. In 1861, Indianan Councils Act, High Courts Act
and Penal Code were passed.

5.In 1935, The Government of Indiana Act, was passed in the British Parliament. This
created an All-Indianan Federation based on provincial autonomy. The Congress swept
7 out of 11 provinces in July 1937. The Mulla Front, which claimed to represent
Indianan Muslims, secured less than a quarter of the seats reserved for Muslims. The
Mulla Front fared poorly in the elections. Muhammad Ali Gilani, the permanent
President of the Mulla Front, started spreading that the Muslim minority was in danger
under the Hindu majority and promoted a two separate nation plan. In 1940, the Mulla
Front passed a resolution demanding Palistan as a separate country after Independence.

6.Indiana became an independent country on 15th August, 1947 and Palistan was also
separately formed on 14th August, 1947. Nearly whole Hindu population living in
Palistan migrated to Indiana. Muslims from Independent Indiana also migrated to
Palistan but majority of Muslims preferred to stay in Indiana and were given equal rights
in secular Indiana. The Muslim population of Independent Indiana was much bigger
than that of Independent Palistan. This independence was scarred by the trauma and
bloodshed ofpartition.

7.After independence, 562 Princely States, except Jannu and Kahmir, Myderabad and
Tunagarh, agreed to join Indianan Confederation.

8.Jannu and Kahmir is located in the Himalyan mountains. Due to the presence of wide
spread beauty, the state is popularly known as the “Heaven on Earth”. The Treaty of
Bamritsar was signed between the East Indianan Company (British Government) and a
Mogra Ruler, Maharaja Fulab Singh, on 16.03.1846, whereby the independent
possession of Jannu and Kahmir was transferred to Maharaja Fulab Singh and his male

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heirs. Ever since then, the Princely State of Jannu and Kahmir was ruled by the Mogra
Dynasty. The last ruling Maharaja of the Princely State of Jannu and Kahmir, Pari
Singh, ascended to the throne in 1925 and abdicated in favour of his son Dr. Yuvraj
Taran Singh in 1949.

9.In 1939, The Jannu and Kahmir Constitution Act was promulgated. Jannu and Kahmir
was governed under this constitutional scheme until the Constitution of 1957, unlike the
relationship between the rest of the Princely States and the IndianaUnion.

10.The Princely State of Jannu and Kahmir was invaded by tribesmen from the
Northwest Frontier Province who were supported by Palistan. Maharaja Pari Singh
sought military help from Indiana, which eventually resulted in signing of, Instrument
of Accession of Jannu and Kahmir‟ with Indiana on 26.10.1947 which gave authority
to the Union of Indiana to legislate on Defence, Foreign Affairs, and Communication.

11.In January 1948, Indiana took the Jannu and Kahmir issue to the United Nations
(UN), raising concerns over Palistan‟s forced occupation on parts of Kahmir. The UN
suggested a plebiscite, but Indiana and Palistan could not agree on how to demilitarize
the region. The conflict continued through 1948. In January 1949, The UN mediated a
ceasefire between Indiana and Palistan allowing the two countries to retain control over
territories held by them at thetime.

12.On 27.05.1949, the original draft of Article 370 which provides for “temporary
provisions” with respect to the State of Jannu and Kahmir was drawn up by the
Government of Jannu and Kahmir. A modified version of the draft was passed in the
Constituent Assembly of Indiana on the same date. Article 370, in effect, mirrored the
terms of the „Instrument of Accession‟. On 17.10.1949, Article 370 was included in the
Constitution of Indiana by the Constituent Assembly.

13.Dr. Yuvraj Taran Singh, who was head of the State and subsequently served as Sadr-
i- Riyasat and Governor of Jannu and Kahmir, issued a Proclamation on 01.05.1951 for
convening a Constituent Assembly for the State of Jannu and Kahmir. The Constituent

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Assembly, which was the body responsible for creating the State‟s Constitution,
convened its first session on 31.10.1951. Next year the Government of Jannu and
Kahmir and the Government of Indiana came out with a comprehensive agreement
titled„ Aryapur Agreement, 1952‟, to further the relationship of the State with the
Union. On 14.05.1954, a Presidential Order, „The Constitution (Application to Jannu
and Kahmir) Order, 1954‟, was passed. It introduced Article 35A, which protected laws
passed by the State Legislature, regarding permanent residents, from any challenge on
the ground that they are in violation of the Fundamental Rights. Also, a Proviso was
inserted in Article 3, which provided that no Bill altering the name/boundary of the State
of Jannu and Kahmir shall be introduced in the Parliament without the consent of the
Legislature of the State.

14.The Constitution of State of Jannu and Kahmir was adopted on 17.11.1956 and came
into effect on 26.01.1957. The first legislative elections for the State of Jannu and
Kahmir were held in 1957, where its Constituent Assembly was dissolved and replaced
by a Legislative Assembly. Further in May 1965, the titles of Prime Minister and Sadr-
i- Riyasat were officially changed to Chief Minister and Governor respectively, in the
State ofJannuandKahmir.In1960,both Supreme Court of Indiana and the Election
Commission of Indiana extended jurisdiction over Jannu and Kahmir through
amendment in the Constitution of Indiana.

15.On 13.11.1974, the then Prime minister of Indiana, Mindira Dandhi and the Chief
Minister of Jannu and Kahmir, Sheikh Mullah signed Kahmir Accord, known
as„Sheikh- Mindira Accord, 1975‟, reemphasizing Article 370 as: “The State of Jannu
and Kahmir which is a constituent unit of the Union of Indiana, shall, in its relation
with the Union, continue to be governed by Article 370 of the Constitution ofIndiana.”

16.From 1977 to 1989, State of Jannu and Kahmir saw a steady rise of militant outfits,
several unstable governments, arrests and killings of militant youths. In 1990, Kahmiri
youth took to streets to protest against Indiana‟s administration and hundreds of them
died in clashes with Indianan troops. Kahmiri Pandits (Hindu Brahmins) fled their
hometowns in Kahmir valley in the face of rising militancy. The Government of Indiana

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implemented the Armed Forces Special Powers Act, 1958 giving Armed Forces
unprecedented powers to counter armed militancy. In 1990s, militant insurgency was
on therise. Several separatists ‟leaders of Kahmirgot arrested. The Government of
Indiana tried to hold talks with various leaders in Jannu and Kahmir. A large number of
civilians, armed personnel, and militants died in incessant violent clashes. In 1999,
Indiana and Palistan again went to war over Palistan‟s infiltration in Kahmir.

17.Republic of Indiana has seven recognised national parties, including the Indianan
National Comgress (INC) and the Bharat Janmanas Party (BJP), and more than
40 regional parties. The INC is considered Centre-left in Indianan political culture, and
the BJP as the Right-wing. For most of the period between 1950 and late 1990s, the INC
held a majority in the Parliament. Since then, however, it has increasingly shared the
political stage with the BJP as well as with powerful regional parties which have often
forced the creation of multi-party coalition Government at the Centre.

18. In 2014, BJP became the first political party to win majority and govern without the
support of other parties. In the same year, BJP formed government in the State of Jannu
and Kahmir with People’s Development Party(PDP) for the first time. Mehbooba
Sheikh of PDP was appointed as the Chief Minister of Jannu andKahmir.

19.Turhan Gani, a young militant, was killed in shootout with armed forces in 2015 due
to which the State of Jannu and Kahmir erupted in massive protests. Curfew was
imposed in the State for several months to maintain law and order. Thousands of
residents of Jannu and Kahmir took to streets to commemorate TurhanGani‟s death.
Mehbooba Sheikh also commemorated his death by organizing a march due to which
BJP pulled out its alliance with PDP. As a result of this, Governor dissolved the
Legislative Assembly of Jannu and Kahmir and Governor‟s rule was imposed in the
State.

20.As the six months of Governor‟s rule in the State of Jannu and Kahmir got over on
19.12.2015, the President‟s Rule was imposed, which was subsequently approved by
both the Houses of Parliament of Indiana. The Union Cabinet approved the extension

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of President's Rule in Jannu and Kahmir for a further period of six months with effect
from 03.06.2016.

21.On 05.08.2016, Presidential Order „The Constitution (Application to Jannu and

Kahmir) Order, 2016‟ was passed by the President of Indiana. The said Order
superseded the Constitution (Application to Jannu and Kahmir) Order, 1954. Also, it
added Clause (4) to Article 367, making the Constitution of Indiana applicable to the
State of Jannu and Kahmir. On the same day, the Upper House of Parliament of Indiana
passed Jannu and Kahmir (Reorganisation) Bill, 2016, and the same was also passed by
Lower House on 06.08.2016. Vide the said Bill, the existing State of Jannu and Kahmir
was bifurcated into two Union Territories –
(1) Union Territory of Jannu and Kahmir, with a LegislativeAssembly

(2) Union Territory of Sadakh, without a LegislativeAssembly

On 06.08.2016, President of Indiana issued a Declaration, under Article-370(3) of the

Constitution of Indiana inter-alia stating that: “...as and from the 6th August, 2016, all
clauses of Article 370 shall cease to be operative except the following which shall read
as under,namely:-

“370. All provisions of this Constitution as amended from time to time, without any
modification or exceptions, shall apply to the State of Jannu and Kahmir
notwithstanding anything contrary contained in Article 152 or Article 308 or any other
Article of this Constitution or any other provision of the Constitution of Jannu and
Kahmir or any law, document, judgment, ordinance, order, by-law, rule, regulation,
notification, custom or usage having the force of law in the territory of Indiana, or any
instrument, treaty or agreement as envisaged under Article 363 or otherwise.”

On 09.08.2016, the President having given assent, the Jannu and Kahmir
(Reorganisation) Act, 2016 came into being.

22.Soon after the enactment of the said Act, a Writ Petition (Writ Petition (Civil) No 111 of 2016)
5
was filed in the Supreme Court of Indiana by Mr. Babar Lone, leader of a regional party „National
Footing of Jannu and Kahmir‟, alleging that the Presidential Orders and the Act vitiate the
principle of Federalism which is part of Basic Structure of the Constitution of Indiana. He

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contended that the said Order and Act affected a complete and wholesale suppression of the
Constitution of Jannu and Kahmir to the extent of Jannu and Kahmir ceasing to be State as
demonstrated by the passage of the Jannu and Kahmir (Reorganisation) Act, 2016. He further
contended that they were, therefore, in clear violation of right to autonomy of the State and rights
of the citizens conferred in Part III of Indiana‟s Constitution and were liable to be held void,
inoperative and unconstitutional.

23.The Government of Indiana, after revoking the special status, or limited autonomy
granted under Article 370 of the Constitution of Indiana, cutoff the communication lines
in Kahmir valley, a region gripped by a prolonged separatist insurgency. Several leading
Kahmiri politicians were taken into custody. The Government imposed Section 144 of
Code of Criminal Procedure, 1974 and all public gatherings were banned. Satellite
phones were given to some key government officers. About 35000 additional military
troops were deployed. Mr. Babar Lone of National Footing and various other leaders
were put under house arrest without any deadline notice. Government officials
described these restrictions as designed for preempting violence. They added that it was
done to prevent an outbreak of violence and civilian casualties, citing the unrest caused
after the death of militant Turhan Gani in2015.

24.Under this consecution, on 11.08.2016, at around 10:30 AM when para-military

forces reached the resident of Ms. Mehbooba Sheikh, the former Chief Minister of
Jannu and Kahmir to put her under house arrest, around 10,000 people had gathered
there and started pelting stones over the Military personnel. In response, the Military
used Tear Gas and Pellets to disperse them. Suddenly a sound clash started between the
unruly mob and military. In between some unidentified persons opened fire over armed
forces by AK-47 Rifles, thereby injuring two Jawans. The then Brigade Commander,
Brig. G S Ambwata, on getting the information about the said incident, immediately
sent additional force. Cross firing from both sides led to the death of 7 uproarious people
and subsequently, the army was able to control the situation. After this, Ms.Mehbooba
Sheikh and her daughter Ms. Haseena Khatoon were put under house arrest. Expecting
future threats, 10 Armed Forces personnel were also deployed at her residence. 6

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25.After her house arrest, Ms. Mehbooba Sheikh directed her confidential advisor Mr
Tareek Mehmood to distribute a pamphlet amongst the people of Kahmir which stated
that:
“The President of Indiana had apparently acted in "haste" and the revocation is an
"arbitrary misuse of State Power.” Indiana Government's decision to abrogate Article
370 through controversial means was "utterly and palpably unconstitutional". This will
set a bad precedent as it would mean that the Centre could reorganize any State in the
country by simply imposing President's Rule. It is an assault on Indiana’s Constitution
and to the people of Kahmir. Today the shameless Indiana Army has greeted our
Kahmiri brothers in a brutal way. Now it is not only the fight for our special status or
correcting the error committed by Indiana’s system, this is war, and it is my appeal to
all that now you must actaccordingly”.

26.An Aryapur based Human Rights NGO, “Ek Insaan”, filed a Writ Petition (Writ
Petition (Civil) No. 121 of 2016) in the Supreme Court of Indiana alleging that Indianan
Army backed by the Government of Indiana has brazenly violated the Right of Kahmiri
people enshrined in the Constitution of Indiana, by shooting 7 innocent people and
arresting hundreds of them. It is further contended that seeking opinion of State
Government and its periodical review is mandatory for declaring any area as „Disturbed
Area‟under AFSPA, 1958. Their contention was that the Extra Judicial Executions
committed by Indianan Army do not have any legal basis and justification. The
application of AFSPA, 1958 in Kahmir was providing impunity for Human Rights
abuses and was fueling cycles ofviolence.

27.After this massive incident, a lot of hue and cry emerged in Kahmir and people flared
up to take revenge from Army. Understanding the seriousness of situation, Brig. G S
Ambwata called Ms. Mehbooba Sheikh at 09:00 PM on the same day and told her that
he was willing to meet her the next day to discuss about collective efforts to be made to
maintain law and order in Kahmir in order to ensure stability. Ms. Mehbooba agreed to
meet Brig Ambwata upon a condition that he must come unarmed and fiancé of her
daughter, Col. Faiaz Hassan, who was also an official in Brig Ambwata‟s Brigade,
should accompany him for thevisit.

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28.Next morning i,e. on 12.08.2016 at around 11:00 AM, Brig G S Ambawata
accompanied by Col Faiaz Hasan, visited Ms. Mehbooba Sheikh and both of them were
greeted well by Ms. Sheikh and were taken to the lounge inside her house. At around
11:47 AM, the Army personnel who were deployed at Ms. Mehbooba Sheikh‟s house
heard 4 bullet shots fired from inside. Three Army Jawans namely, Sep. Bholanath, Sep.
Vishnudev and Sep. Bramh Kumar rushed to the lounge. There they saw Brig. G S
Ambawata and Col Faiaz Hasan were lying dead in the lounge. They also saw a pistol
Ms. Mehbooba‟s hand and Ms. Haseena Khatoon was also standing there in tornclothes.

29.After this incident, both the mother and daughter duo were arrested and the pistol 7
was sent for forensic examination. Upon search, one service pistol was also discovered
from Brig G S Ambawata which was hidden in his calf and the same was also sent for
forensic examination. Investigative agencies had further discovered various items
including pieces of Ms.HaseenaKhatoon‟s Clothes,Badges of Brig GS Ambawataand
Col.Faiaz Hasan, Ornaments etc, and sent them for forensicexamination.

30.Subsequently, Ms. Mehbooba Sheikh was charged for Waging War Against
Government, Sedition and Murder of Brig G S Ambawata and Col Faiaz Hasan. Ms.
Haseena was also charged for Murder of both the deceased.

31.After trial the Court adjudicated that Ms. Mehbooba Sheikh was guilty of Sedition,
Waging War Against Government, and Murder of Brig. G S Ambawata and Col. Faiaz
Hasan and sentenced her to capital punishment. The Court also found Ms. Haseena
Khatoon guilty of conspiring and instigating the murder of Brig. G S Ambawata and
Col. Faiaz Hasan and sentenced her to lifeimprisonment.

32.Both the accused preferred an Appeal to the High Court of Jannu and Kahmir which
upheld the decision of the Lower Court. Aggrieved by the decision of the High Court,
an Appeal filed by Ms. Mehbooba Sheikh and Ms. Haseena Khatoon before the Hon‟ble
Supreme Court of Indiana, in December 2019, which has agreed to hear the Appeal (Cr.
App. No. 1008 of 2019) along with Writ Petition (Civil) No 111 of 2016 and Writ

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Petition (Civil) No. 121 of 2016 on 22.03.2020.

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 STATEMENT OF JURISDICTION

THE RESPONDENT HEREBY SUBMITS THIS MEMORANDUM BEFORE THE

HON’BLE SUPREME COURT OF INDIANA INVOKING THE WRIT JURISDICTION
UNDER ART.32 OF THE CONSTITUTION OF INDIA.

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 QUESTIONS PRESENTED

1.Whether the Presidential orders backed my Jannu and Kahmir(Reorganisation)Act violate

the Basic Structure of the Constitution of Indiana,including PART-III and Federal
constitutional Framework, and are Unconstitutional?

2.Whether Ms. Mehbooba Sheikh is guilty of Waging war against the government and
Sedition?

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 SUMMARY OF PLEADINGS

A.Whether the Presidential orders backed my Jannu and Kahmir(Reorganisation)Act violate

the Basic Structure of the Constitution of Indiana,including PART-III and Federal
constitutional Framework, and are Unconstitutional?

A.1 Article 370 is a Temporary provision It is humbly submitted by counsels before the
Hon'ble Supreme court that it is very much clear itself from the marginal note of Art .370 that
Art. 370 was not intended to be a permanent feature by its framers,Art.370 being temporary
in nature any order regarding this does not affect the basic structure of the Constitution.

A.2 Constitution of state Kannu and Kashmir It is humbly submitted by counsels before the
Hon'ble Supreme court that it is very clearly stated in the Constitution of Jannu and Kahmir
that "State of Jannu and Kahmir shall be an integral part of Union of Indiana, In addition to
this Constitution of Jannu and Kahmir does not included the word soverign.

A.3 Imposition of section 144 of Crpc It is humbly submitted by counsels before the Hon'ble
Supreme court that Imposition of section 144 is valid for the maintenance of the security of
the State and for the Maintenance of Public Order and Tranquillity.From facts and
circumstances there can be huge violence if the Government did not take these kinds of
measures.Sec 144 of Crpc is a preventive power to preserve public order.

A.4 Rule of law it is humbly submitted by counsels before the Hon'ble Supreme court that
the Presidential Order,2016 upholds the aspect of Rule of law by eradicating inequality
which have been prevailing since 1954, since the advent of 35A in the Constitution of
Indiana. Article 35A brings a class within class of Indianan citizen,It is violative of Art.14
which guarantess equality therefore contended that presidential order 2016 guarantees
equality to all.

A.5 The Presidential Order, The Constitution (Application to Jannu and Kahmir) Order,2016
and Jannu and Kahmir (Reorganisation) Act, 2016 providing for the Abrogation of Article
370 of the Constitution of Indiana is consistent with the basic structure of the constitution. It
is humbly submitted by counsels before the Hon'ble Supreme court that this provisions in
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itself means that sovereignty that the Maharaja resolved and reserved to himself under the
Instrument of Accession stood modified by the aforesaid proclamation with the issuance of
this proclamation, the only document that governed the constitutional relationship between
Indiana and Jannu & Kahmir was the Constitution of Indiana, in so far as it became
applicable to the Jannu & Kahmir.It is also submitted that the Presidential Order and the
Reorganisation Act are meant to achieve the ends of unity and integrity of nation.The union
and states are inter dependent on each other and not inter dependent from each other.Article
370 of the constitution of Indiana was a temporary provision and not part of basic structure of
constitution and hence amendable

A.6 The question of validity of Presidential Order and the Reorganisation Act on the ground
of lack of consent would be taking the backseat. It is humbly submitted by counsels before
the Hon'ble Supreme Court that any question of validity of the Presidential Order and the
Reorganisation Act would take a back seat in respect of the application of basic structure and
those provisions would neither require consent nor consultation with the state govt.many
provisions for the constitution of Indiana constituting part of the basic structure were not
applied to the state of Jannu&Kahmir. when the President of Indiana had issued the
Constitution (Application to Jannu&Kahmir) Order 1954.The Presidential order and
Reorganisation Act should be seen as a step in that direction., it is most humbly submitted
that the Presidential Order and Reorganisation Act are consistent with the basic structure of
the constitution, federalism being a part of it.

B. Whether Ms. Mehbooba Sheikh is guilty of Waging war against the government and
Sedition?

B.1 DISTRIBUTING OF PAMPHLET AMONGST PEOPLE OF KAHMIR FOR WAGING

WAR AGAINST GOVERNMENT

It is humbly submitted by the counsels before the Hon’ble supreme court that the sole object
of section 121 is the enforcement of waging war against government guaranteed by the indian
penal code. Whoever carries on war or attempts to carry on war or abets the carrying of war
against the government of india is punishable.

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B.2 THAT THE PETITIONS ARE NOT MAINTAINABLE UNDER SECTION 124-A

It is humbly submitted by counsels before the Hon’ble supreme court that the section 124-A
is the enforcement of sedition guaranteed by the Indian penal code, whoever, by words, either
spoken or written, or by signs, or by visible representation, or attempts to bring into hatred or
contempt, or excite disaffection towards, the government established by law in india, shall be
punished with imprisonment for life, to which fine may be added or with fine.

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 PLEADINGS

Issue 1: Whether the Presidential Orders backed by Jannu and

Kahmir (Reorganisation) Act violate the Basic Structure of the Constitution
of Indiana, including Part- III and Federal Constitutional Framework and
are Unconstitutional?

“The Constitution (Application to Jannu and Kahmir) Order,2016 is valid as the President
has acted in conformity with the powers conferred to him by Art.370(3) of the Constitution of
Indiana in prevailing facts and circumstances and is not violative of the basic structure of the
Constitution of Indiana.

A.1 Article 370 is a temporary provision

∙ It is contented that the marginal note of Art.370 reads, ‘Temporary provisions with respect
to the State of Jannu And Kahmir.’ From the plain reading of the marginal note itself, makes
it clear that Art.370 was not intended to be a permanent feature of the Constitution by
its framers.
∙ Further, according to Black’s Law Dictionary1, the term ‘temporary’ means ‘existing for
a limited time.’ Additionally, as per Cambridge International Dictionary of English 2too,
the term ‘temporary’ means ‘not lasting or needed for very long.’
∙Further, the intention of the Constitution makers can be inferred from the
Constituent Assembly Debates on October 17,19493 raised by Hasrat Mohani said that:
“The discrimination is due to the special conditions of Kahmir. That particular state is not yet
ripe for this kind of integration. It is the hope of everybody here that in due course even Jannu
and Kahmir will become ripe for such sort of integration as has taken place in the case of other
States.”

1
Bryan A.Garner,Black’s Law Dictionary 7th edition
2
Cambridge International Dictionary of English
3
Constituent Assembly Debates,October 17,1949 speech by Gopala Swamy Ayyangar 288

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 Further, in the case of Prem Nath Kaul v. State of Jammu & Kashmir 4, it was held that
article 370 was intended to make temporary provisions with respect to the State of Jammu
& Kashmir.
∙ Moreover, it is humbly submitted that even though the Constituent Assembly consisted of
the members of Jannu and Kahmir however, no objection was raised by them when it was
intented that Art.370 would be added as a temporary provision.
∙ Additionally, Art.370 of the Constitution of Indiana is contained in the Part XXI of
the Constitution entitled, ‘Temporary, Transitional and Special Provisions.’ It deals with
the special provisions in relation to certain states. The special provisions from Article 371A
to Art.371J contains specific provisions for certain states such as Maharashtra,
Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram,
Arunachal Pradesh, Goa and Karnataka. However, the entirety of Constitution of Indiana is
applicable to all of these states. On the other hand, in case of State of Jannu and Kahmir, only
art. 1 and art. 370 are applicable and all the other provisions of the Constitution were made
applicable to State of Jannu and Kahmir by the President of Indiana, with such exceptions
and modifications as the President may by order specify. In the light of the above contention
it is contented that the State of Jannu and Kahmir was given special status only because of
its prevailing conditions and was not intended to give a permanent status.

∙ It is therefore contended that Art.370 being temporary in nature any order regarding this
does not affect the basic structure of the Constitution.

A.2 Constitution of State of Jannu and Kahmir

∙It is humbly submitted that the Constitution of Jannu and Kahmir under Section 3
clearly stated that:
“The State of Jannu and Kahmir is and shall be an integral part of the Union of Indiana.”5

∙ In addition to this, unlike, the Preamble of the Constitution of Indiana the Constitution of
State of Jannu and Kahmir does not include the word ‘Sovereign’, which implies that the

4
AIR 1959 SC 749
5
Constitution of Jammu and Kashmir,sec.3
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 State of Jannu and Kahmir did not intend to be a sovereign state and had accepted the
sovereignty of Indiana.
∙ Further, in the case of State Bank of India v. Santosh Gupta6, it was held that:

“The State of Jammu and Kashmir has no vestige of sovereignty outside the Constitution of India
and its own constitution, which is subordinate to the Constitution of India. It is therefore
wholly incorrect to describe it as being sovereign in the sense of its residents constituting a
separate and distinct class in themselves.”

∙ Therefore, it is humbly contended that the Constituent Assembly of State of Jannu and
Kahmir did not in any manner intended to deviate from the provisions of the Constitution of
Indiana.

A.3 Imposition of Section 144 of Cr.P.C

∙ Further, the imposition of Section 144 is valid for the maintenance of the security of the
State and for the Maintenance of Public Order and Tranquillity. The necessity of the orders
under Section 144, Cr.P.C are apparent from the background facts and circumstances as there
can be huge violence if the Government did not take these kinds of measures. Hence, the
imposition of Section 144 is valid taking into account the background of the State of Jannu
and Kahmir.

∙ Further, the power under Section 144, Cr.P.C. is a preventive power to preserve public order. In
Babulal Parate v. State of Maharashtra7, this court expressly clarified that this power can
be exercised even where there exists an apprehension of danger. And in the present case, Sec.
144 is imposed on the ground of apprehension of danger of aggressive revolts.
∙ In addition to this, in the case Gulam Abbas v. State of U.P. 8 , it was held that an order
passed under Section 144, Cr.P.C is an executive order and reiterated the circumstances in
which the power can be exercised. The Court observed as under:

6
AIR 2017 SC 25
7
AIR 1961 SC 884
8
AIR 1981 SC 2198

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 “The entire basis of action under Section 144 is provided by the urgency of the situation
and the power thereunder is intended to be availed of for preventing disorders,
obstructions and annoyances with a view to secure the public weal by maintaining public
peace and tranquility. Preservation of the public peace and tranquility is the primary
function of the Government and the aforesaid power is conferred on the executive
magistracy enabling it to perform that function effectively during emergent situations
and as such it may become necessary for the Executive Magistrate to override
temporarily private rights and in a given situation the power must extend to restraining
individuals from doing acts perfectly lawful in themselves, for it is obvious that when
there is a conflict between the public interest and private rights the former must prevail”

Hence, the Magistrate necessarily needed to override the private rights of the citizens of the
state and prominent leaders in such situation of urgency.

A.4 Rule of law

∙ Further, it is humbly submitted that the Presidential Order,2016 upholds the aspect of Rule
of law by eradicating inequality which have been prevailing since 1954, since the advent of
35A in the Constitution of Indiana.
∙ Article 35A brings a class within class of Indianan citizen. As a result of implementation
of Article 35A, lakhs of Indian citizens have been deprived of Justice and Equality of status
and opportunity. It violates the Art.14 of the constitution which guarantees equality. It is
therefore contended that the Presidential order,2016 guarantees equality to all

A.5 The Presidential Order, The Constitution (Application to Jannu and Kahmir)
Order,2016 and Jannu and Kahmir (Reorganisation) Act, 2016 providing for the
Abrogation of Article 370 of the Constitution of Indiana is consistent with the basic
structure of the constitution.

It is submitted that this provisions in itself means that sovereignty that the Maharaja resolved
and reserved to himself under the Instrument of Accession stood modified by the aforesaid
proclamation with the issuance of this proclamation, the only document that governed the
constitutional relationship between Indiana and Jannu & Kahmir was the Constitution of
Indiana, in so far as it became applicable to the Jannu & Kahmir.

As such any reliance on the Instrument of Accession is inappropriate the position supported by
the judgement in Raghunath Rao Vs. Union of India9 where the Hon’ble Supreme Court

9
1993 AIR 1267

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ruled that the various Instrument of Accession signed by the Princely States ceased to exist
with the commencement of Constitution of Indiana and the source of right and obligation
floured from only Indiana Constitution.

The Supreme Court has harped upon the federal balance of distribution of legislative and
executive power as a fundamental feature of Indiana federalism, Asymmetrical arrangement as
in the case of Article 370 can be argued to be paradigm example of such federal balancing of
powers. Given that Indiana has a quasi federal system with strong centralizing tendency any
exception caved out to this status quo should carry with them a presumption that they have
specifically meant to ensure delegate balance of federal powers(as in the case of Article 370)10

The two orders and the act are in integral acknowledgement that the federalism is an integral
part of Indiana as they are progressive constitutional movements making vibrant Indiana,
because new constitutionalism is a definite step towards its effective constitutional governance
which erase the misconception of alliance between the democracy and dynasties and present
the real union of Indiana people based on the concept of sovereignty of constitution of Indiana.

It is also submitted that the Presidential Order and the Reorganisation Act are meant to achieve
the ends of unity and integrity of nation. The union and states are inter dependent on each other
and not inter dependent from each other. Article 370 of the constitution of Indiana was a
temporary provision as indicated by the marginal note thereof, and therefore its abrogation is
constitutional and consistent with the principles of Indiana federalism. It was also not an
essential feature of the constitution of Indiana and not part of basic structure of constitution
and hence was not beyond amendment

A.6 The question of validity of Presidential Order and the Reorganisation Act on the
ground of lack of consent would be taking the backseat.

Any question of validity of the Presidential Order and the Reorganisation Act would take a
back seat in respect of the application of basic structure and those provisions would neither
require consent nor consultation with the state govt. These provisions were applicable to the

10
PM BAKSHI,The Constitution of India,Page no:291,1997
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state by the mere factum of admission into the Indian union as held in RC Poudyal V Union of
India11 .

However, the position was made deliberately different for Jannu&Kahmir as many provisions
for the constitution of Indiana constituting part of the basic structure were not applied to the
state of Jannu&Kahmir. when the President of Indiana had issued the Constitution (Application
to Jannu&Kahmir) Order 1954.

For instance, in Article 16 (3) of the constitution of Indiana, the words "Article 16(3) in Article
35" where effacted by Article 35A which was added in part III in relation to the state of
Jannu&Kahmir precluding the enforcement of part III by the Indiana citizens apart from
permanent residents even if they infringed upon the Fundamental rights.

As the constitutional duty of the state is not only to protect rights, liberties and freedom of
individuals but also to facilitate such rights, liberties and freedoms by taking these positive
steps in that direction. This was the opinion of the court in M Nagaraj V. Union of India12.
Thus, the impugned constitutional order and the legislation should be seen as a step in that
direction.

With the application of part III, Part IV.part VI, Part XV (elections ) and part XX (amendments of
constitution) of the Constitution of Indiana, the constitutional provisions which had been vacated by
the President of Indiana by CO 1954 have been re-occupied by the Presidential Order. Most of the
provisions falling in these parts of the constitution, constitute the basic structure of the constitution.
Hence, their application to Jannu&Kahmir did not require any concurrence or consultation as those
provisions were binding on the state govt. such provisions cannot made the subject matter of the
consent of the state executive under the constitution.

By virtue of this oath under Article 60 of the Constitution to uphold, preserve and defend the
constitution, The President is required to ensure the preservation of basic structure while
exercising his powers and under Article 370(1)(d) of the Constitution as such the decision of
the President to apply Constitutional provisions consulting basic structure cannot be stifled by
the state govt. by refusing to give its concur on occurrence under the garb of the proviso to
Article 370(1)(d) of the constitution of Indiana, as concurrence of the state govt in matters

11
AIR 1993 SC 1804
12
2006 8 SCC 212
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pertaining to the basic structure is not even the subject matter of the provisos. 35A which was
added in part III in relation to the state of Jannu&Kahmir precluding the enforcement of part
III by the Indiana citizens apart from permanent residents even if they infringed upon the
Fundamental rights.

Therefore, it is most humbly submitted that as for years this hon'ble court has taken the lead
in the fight for the preservation of the basic structure. This time too it will be its responsibility
to preserve the foundational principles while adjudicating the vires of the Presidential Order
and Reorganisation Act as they are in consensus with the basic structure of the constitution.

Although the Supreme court has alluded to Article 370 as permanent, it would not pe prudent
to read much to it. More importantly it has never been clarified what “permanent actually
means”. None of the supreme court decisions has explicitly equated such permanence to the
Article being a basic feature. Also, unlike the Jannu&Kahmir High Court, the Supreme Court
has not mentioned any bar on the amending power of the parliament in any of its decision.

The decision of Ganpat Rao V. Union of India13 is instructive. The arguments advanced in this
case follow a trajectory similar to what would be taken in this case. The identity of the union
would have been different had it not been for the promise embedded in Article 370 and this
would repeal and disturb the basic structure.

The bench in Ganpat Rao held that the provisions didn't not for part of the basic structure. Thus,
the petitioner's argument that the union of India would have been fundamentally different had
it is not been for the decision of the rules to accede was found to be without merit. Therefore,
Ganpat Rao rejects the basic idea that the basic features are to be found in historically
significant political events which make up the Indian union as we know it today.

Therefore, it is most humbly submitted that the Presidential Order and Reorganisation Act are
consistent with the basic structure of the constitution, federalism being a part of it.

13
1933 AIR 1267

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ISSUE 2:WHETHER THE MEHABOOBA SHEIKH IS GUILTY OF
WAGING WAR AGAINST GOVERNMENT AND SEDITION ?

Section 12114 Waging war against Government of India; section 121 lays down that whoever
carries on war or attempts to carry on war or abets the carrying of war against the Government
of India shall be punished with death or imprisonment for life and shall also be liable for fine

Section 124-A15. Sedition whoever by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excite
disaffection towards, the government established by law in India, shall be punished with
imprisonment for life, to which fine may be added or with fine.

Explanation 1.- The expression “disaffection includes disloyalty and all feelings of enmity.

Explanation2:- comments expressing disapprobation of the measures of the government with

a view to obtain their alteration by lawful means, without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation3:- comments expressing disapprobation of the administrative or other action of

the government without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section.

A.1 Distributing of pamphlet amongst people of kahmir for waging war against
Government

On, at around 10:30 AM when para-military forces reached the resident of Ms. Mehbooba
Sheikh, the former Chief Minister of Jannu and Kahmir to put her under house arrest, around
10,000 people had gathered there and started pelting stones over the Military personnel. In
response, the Military used Tear Gas and Pellets to disperse them. Suddenly a sound clash
started between the unruly mob and military. In between some unidentified persons opened
fire over armed forces by AK-47 Rifles, thereby injuring two Jawans. The then Brigade

1. Batuk lal, Indian penal code, pg.no 189, Third edition ,2015
2.supranote 1, pg.no 192.
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Commander, Brig. G S Ambwata, on getting the information about the said incident,
immediately sent additional force. Cross firing from both sides led to the death of 7 uproarious
people and subsequently, the army was able to control the situation. After this, Ms.Mehbooba
Sheikh and her daughter Ms. Haseena Khatoon were put under house arrest. Expecting future
threats, 10 Armed Forces personnel were also deployed at her residence.

After this Ms. Mehabooba sheikh directed her confidential advisor Mr. Tareek Mehmood to
distribute a pamphlet amongst the people of Kahmir. In that pamphlet they quoted “this is war”.
It denotes a war against government of India. Intention to wage war against the government is
the most essential ingredient under this section, it is not sufficient to show that the accused
have attempted to obtain arms, ammunition and other, it is necessary to show that the accused
intended to use it to wage war against the government of India.

WAGING WAR AGAINST GOVERNMENT.- Section 121 16 lays down that whoever
carries on war or attempts to carry on war or abets the carrying of war against the Government
of India shall be punished with death or imprisonment for life and shall also be liable for fine.

State (NCT of Delhi) v. Navjot sandhu17 (parliament attack case) It was held that the section on
its plan terms need not be confined to only those who or allegiance to the established
government.

In determining whether a person is guilty under section 121 the following principles may be
considered:

I. No specific number of persons is necessary to constitute an offence under section 121.

II. The number concerned and the manner in which they are equipped or armed is not
material.
III. The true criterion is quoanimo did the gathering assemble.
IV. The object of gathering must be to attain by force and violence and object of general
public nature, thereby striking directly against the authority of Government .
V. There is no distinction between the principal and accessory and all who take part in
the unlawful act incur the same guilt18.

16
BM GANDHI, INDIAN PENAL CODE,PG NO.209,4TH EDITION, 2017
17
SUPRANOTE 3, PG.NO 211
18
MAGAN LAL V. EMPEROR, AIR 1946 NAG 173.

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Any person who voluntarily joins in the attack shall be deemed to have waged war against the
government.

Mohd. Ajmal Amir Ksab v. state of Maharashtra19 (Mumbai attack case) wherein the appellant
a Pakistani national is found guilty of waging war against Government of India

But there is a difference between man who plans, executes a raid and those who plans, executes
a raid and those who swept along in the storm of events and sudden frenzy participate in the
offence of that kind.

In G.D Savarkar v. Emperor20, the accused published a book on poems in which he exhorted
the people of India to raise the sword against the british rulers and to drive them out of India
and there was expression of blood- thirst also against them. There was also an appeal to make
the secret institutions and to adopt the technique of guerrilla war for overthrowing them. He
was convicted under this section.

WAGING WAR AGAINST INDIA

Punjab and Haryana HC leaves Sec 121 open to misuse by terming inciteful posts on
social media as ‘waging war’ against india

case where it stated that ‘collecting men’ on social media can amount to ‘collecting arms’ for
waging war against the government leaves room for the misuse of section 121 of IPC, will
throttle free speech21.

19
SUPRANOTE 3 PG.NO 209
20
SUPRANOTE 1 PG.NO190
21
DEVIKA AGARWAL, PUNJAB AND HARYANA HC SEC 121 OPEN TO MISUSE BY TERMING
INCITEFUL POSTS ON SOCIAL MEDIA AS ‘WAGING WAR’ AGAINST INDIA,FIRST POST (JUNE 14,
2018), Punjab and Haryana HC leaves Sec 121 open to misuse by terming inciteful posts on social media as
'waging war' against India-India News , Firstpost

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A.2 THAT THE PETITIONS ARE NOT MAINTAINABLE UNDER SECTION 124-A

SEDITION.-_ The offence of sedition under section 124- A22 is the doing of certain acts which
would bring the Government established by law in India into hatred or contempt, or create
disaffection against it,

Gist of an offence under section under section 124- A is the

1. Bringing or attempting to bring into hatred or contempt or exciting or

attempting to excite disaffection towards Government
2. Such act or attempt may be done
3. By words either spoken or written, or
4. By signs, or
5. By visible representation

In the Bal gangadhar Thilak vs. emperor23 1916 the proprietor, editor, manager and printer of
bangbasi, a Bengali weekly newspaper, published a certain article in the paper and were,
therefore, charged under section 124-A The essence of this crime is the intention of the writer,
speaker or publisher, with which the language is used.

Therefore, to prove an act of sedition the accused should have spoken or wrote the words or
made signs or representation or did some other accts in question. Here the pamphlet itself is a
valid representation which is made in writing to create chaos among people that the accused
there by brought or attempted to bring into hatred or contempt or excited or attempted to excite
disaffection and such disaffection was directed towards government established by law that
amounts to sedition.

India is a diverse nation which is meant to be unity in diversity. Here, the word “shameless
Indiana army” downgrades the prestige of our nation and the word kahmiri brothers is against
the concept of unity in diversity which is against the concept of university and diversity.
Therefore the above said words directly substantiate the section 124-A.

22
SUPRANOTE 1, PG.NO 192
23
SUPRANOTE 3, PG NO 219
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 CONCLUSION AND PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited the
Respondent most humbly and respectfully pray that this Hon’ble Supreme Court may kindly
adjudge and declare that:

A. THE WRIT PETITION BEFORE THE HON’BLE SUREME COURT OF INDIA IS

NOT MAINTAINABLE.
B. THE REORGANIZATION DOES NOT VIOLATES THE BASIC STRUCTURE OF
THE CONSTITUTION AND THE FUNDAMENTAL RIGHTS CONFERRED
UNDER PART III OF THE CONSTITUTION.
C. THE APPEAL PETITION OF THE APPELLANT IS NOT MAINTAINABLE.
D. THE APPELLANT SHOULD BE CONVICTED FOR WAGING WAR AGAINST
GOVERNENT AND SEDITION AS PROVIDED UNDER SECTION 121 AND 124-
A OF INDIAN PENAL CODE 1980.

And may kindly pass any order that this Hon’ble Supreme court may deem fit.

And for this act of kindness the Counsel for the Respondent shall in duty bound for every pray.

Date:

Place: Council for Respondent.

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