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LAW SCHOOL, BANARAS HINDU UNIVRSITY

[BLBH-415] MOOT COURT COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

ALIZA FIRDOS AND ORS. v. STATE OF KALOSHIA

Along-with
IN RE: PRESIDENTIAL REFERENCE CASE
Along-with
AKHANDANAND TRIPATHI v. UNION OF INDIA

PETITION INVOKED UNDER ART. 139-A OF

THE CONSTITUTION OF INDIANA

___________________________________________________________________________
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S
COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIANA

MEMORANDUM OF ARGUMENTS FOR THE RESPONDENTS

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TABLE OF CONTENTS

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

INDEX OF AUTHORITIES...................................................................................................6

STATEMENT OF JURISDICTION......................................................................................7

STATEMENT OF FACTS....................................................................................................11

STATEMENT OF ISSUES...................................................................................................14

SUMMARY OF ARGUMENTS...........................................................................................15

ARGUMENTS ADVANCED................................................................................................17

I. WHETHER THE WEARING OF A HIJAB IS A FUNDAMENTAL RIGHT

UNDER ARTICLE 19 (1) (A) AND ARTICLE 25 OF THE CONSTITUTION OF
INDIANA?...........................................................................................................................17

1. Wearing of Hijab is not a fundamental right guaranteed under Article 19 (1)

(a). 17

2. The government notification passes the test of reasonability................................19

3. Wearing of Hijab is not a Fundamental Right guaranteed under article 25.....22

4. Hijab is not a quintessential aspect of the religion...............................................28

5. Hijab is against human dignity and personal liberty...........................................29

II. WHETHER THE 106TH CONSTITUTIONAL AMENDMENT ACT, 2022 IS,

CONSTITUTIONALLY VALID?....................................................................................32

1. The amendment confers an inalienable human right to the people and thus is
constitutional and valid..................................................................................................32

2. International covenants and agreement provide the backdrop of the 106th

amendment......................................................................................................................34

III. WHETHER THE IMPOSITION OF THE PRESIDENT'S RULE IN THE

STATE OF KALOSHIA WAS CONSTITUTIONALLY VALID?...............................35

1. The imposition of the President’s rule was done in accordance with the
provisions of Article 356 of the Constitution................................................................35

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2. The then situation of Kaloshia warranted the proclamation of President’s rule

and is, thus, justified.......................................................................................................38

3. Proclamation of President’s rule was a decision taken in the absence of better

alternatives in the interests of the people involved......................................................39

IV. WHETHER THE STATE OF KALOSHIA CAN BE GIVEN THE RIGHT TO

SECEDE FROM THE UNION OF INDIANA?..............................................................40

1. Indiana is a party to various International Covenants providing and respecting

the right to self-determination.......................................................................................41

2. The Law of Indiana does not restrict the right to Secede......................................42

PRAYER.................................................................................................................................44

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LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Art. Article

Anr. Another

All Allahabad

A.P Andhra Pradesh

Comm. Committee

Del Delhi

Edn. Edition

ERP Essential Religious Practice

Hon’ble Honourable

HC High Court

ICCPR International Covenant on Civil and Political Rights

IPC Indian Penal Code

ICESCR International Covenant on Economic Social and Cultural Rights

ISP Indiana Samaj Party

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ICP Indiana Congress Party

IJP Indiana Janta Party

IYLA Indiana Young Lawyers Association

Ken Kenya

Kar Karnataka

Ker Kerala

MANU Manupatra

MP Madhya Pradesh

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

UOI Union Of India

UDHR Universal Declaration of Human Rights

UNO United Nations Organization

USSR Union of Soviet Socialist Republics

US United Nations

USC United States of Czar

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v. Versus

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INDEX OF AUTHORITIES

Cases

Sr.no Title Citation Appear on Page(s)

1 Bennett Coleman & Co. v Union (1971) 2 SCC 788 17
of India
2 Bijayananda Patnaik v. Union of AIR 1974 Ori 52 34
India
3 Chintaman Rao v. State of 1950 SCC OnLine 18
Madhya Pradesh SC 34
4 Devidas Ramchandra Tuljapurkar AIR 2015 SC 2612 15
v State of Maharashtra
5 E. Giri Yadav v Union of India 2012 SCC OnLine 38
AP 1008
6 Fathima Thasneem v. State of 2018 SCC OnLine 23
Kerala Ker 5267
7 Golakh Behari Chhotray v. State 1971 SCC OnLine 37
of Orissa Ori 14
8 In Re: The Berubari Union AIR 1960 SC 845 40
9 Indian Young Lawyers (2019) 11 SCC 1 16. 28
Association v. Union of India
10 Jolly George Verghese & Anr v. 1980 AIR 470 41
The Bank Of Cochin
11 K.S. Puttaswamy and Anr. v. (2017) 10 SCC 1 27
Union of India
12 M. Ajmal Khan v. Election 2006 SCC OnLine 22
Commission of India Mad 794
13 M.A Rasheed v State of Kerela (1974) 2 SCC 687 37
14 Manoj Narula v. UOI (2014) 9 SCC 1 27
15 Modern Dental College & (2016) 7 SCC 353 17
Research Centre v. State of MP
16 Mohd. Ahmed Khan v. Shah Bano (1985) 2 SCC 556 18
Begam

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17 Naga People's Movement of (1998) 2 SCC 109 37

Human Rights v. Union of India
18 Navtej Singh Johar v Union of (2018) 10 SCC 1 16
India
19 Naz Foundation v. Govt of NCT 2009 SCC OnLine 27
Del 1762
20 NK Bajpai v Union of India AIR 2012 SC 1310 15
21 Radha Mohan Lal v Rajasthan AIR 2003 SC 1467 15
High Court
22 Ramjilal Modi v. State of UP AIR 1957 SC 620 15
23 Ratilal Panachand Gandhi v. The AIR 1954 SC 388 21
State of Bombay
24 Resham v. State of Karnataka 2022 SCC OnLine 19, 22
Kar 315
25 Rev. Stanislaus v. State of M.P AIR 1977 SC 908 25
26 Sardar Syedna Taher Saifuddin AIR 1962 SC 853 21
Saheb v. The State of Bombay
27 Shayara Bano v. Union of India (2017) 9 SCC 1 27
and Ors
28 State of Rajasthan v. Union of (1977) 3 SCC 592 16
India
29 The Commissioner, Hindu AIR 1954 SC 282 21
Religious Endowments, Madras v.
Sri Laxmindra Thirtha Swamiar of
Sri Shirur Mutt
30 Tinker v. Des Moines Independent 393 U.S. 503 (1969). 17
Community School District

OTHER AUTHORITIES

Asghar Ali Engineer, Quran, Hadith and Women, DAWN (25/09/2009),

https://www.dawn.com/news/492444/quran-hadith-women last seen on 03/02/2023.------27

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Dr. Asghar Ali Engineer, Rights of Women and Muslim Societies, Vol. 7, Socio-Legal
Review, NLSIU, p. 44.-------------------------------------------------------------------------------27

CONSTITUTIONAL PROVISIONS

Art. 355, the Constitution of India, 1950-------------------------------------------------------------35

Art. 19, the Constitution of India.---------------------------------------------------------------------14
Art. 356, the Constitution of India. -------------------------------------------------------------------33

LAW JOURNAL

Paras Diwan, Kashmir and the Indian Union:The Legal Position, 02 (03),The International
and Comparative Law Quarterly, Jul., 1953, 2, No. 3 (Jul., 1953), pp. 333-353 Published
by: Cambridge University,333,344(1953), available at https://www.jstor.org/stable/755438,
last seen on 03/02/23.--------------------------------------------------------------------------------31
A. Cassese, Self-determination of peoples: A legal reappraisal (1995), at pp. 171-72; K.
Doehring-----------------------------------------------------------------------------------------------33
Constituent Assembly Debates, Vol. IX, p. 133-----------------------------------------------------35
DR. D.D. Basu, Commentary on the Constitution of India, 3459 (6th ed., 2010)--------------36
Gautum Navlakha, Right for self-determination in India, International Conference for
Human Rights and Peace in the Philippines, available at: https://ichrp.net/right-of-self-
determination-in-india/, last seen on 03/02/2023.------------------------------------------------33
Qadri, Nasir, The basis of right to Self determination, International Islamic University
Islamabad, (2018), available at:
https://www.researchgate.net/publication/329153669_The_basis_of_right_to_Self_determi
nation, lasr seen on 02/02/2023---------------------------------------------------------------------32
14 I.L.M. 1292 (1975) (Helsinki Final Act).---------------------------------------------------------32
Sudhir Kumar, “Constitutional Position Of Coalition Government In India.” 72 The Indian
Journal of Political Science, 489–500, 2012, available at: JSTOR,
http://www.jstor.org/stable/42761434, last seen on 02/02/ 2023.------------------------------38

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STATEMENT OF JURISDICTION

The counsel for the Respondents most respectfully showeth:

In the case of Aliza Firdos v. State of Kaloshia, the petitioners have approached the Hon'ble
Supreme Court of Indiana to hear and adjudicate over this instant matter under special leave
to appeal given in Art. 136 Of the Constitution of Indiana.

In Re: Presidential reference case, the President of Indiana has approached this Hon’ble court
to seek its advisory opinion under Art. 143 of the Constitution of Indiana.

In the ca

se of Akhandanand Tripathi v. Union of Indiana, the petitioners have approached the Hon'ble
Supreme Court of Indiana to hear and adjudicate over this instant matter under Art. 32 of the
Constitution of Indiana.

All three petitions have been accepted and clubbed by the Hon’ble Supreme Court of Indiana
by exercising its power under Art. 139-A and are pending for further hearings.

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STATEMENT OF FACTS

● Feloshia, a first world country, became prosperous after the Industrial Revolution and
started making colonies strategically. It originally practiced absolute monarchy
however, became a constitutional monarchy after unanimous protest by people. The
monarch signed the first Charter on Civil and Political Rights- the Magna Carta. In
the later 17th century, the policy of 'divides and rule’ between the Ethicals and the
Genials was used to overthrow the constitutional monarchy. The king, belonging to
the Ethicals, started the persecution of Genials and forced them to flee to Northern
Czar, a country having a diverse local population dividing into several communities
with Genials in majority.
● Due to Feloshian dominance, the Northern Czar was assumed to be a colony of
Feloshia. To overcome economic depression, Feloshia levied a heavy tax on all its
colonies, including Northern Czar. Northern Czar challenged the imposition of taxes.
This led to a war between the people of Northern Czar and the Government of
Feloshia.
● To face it, Communities in Northern Czar entered into 'Articles of Confederation.’
and became independent after defeating Feloshia. In the Agreed Confederation, every
community provided the right to withdraw from the Union. The first written and
federal constitution was enacted in the world in 1787 which came into force in 1789
on getting approved by 9 out of 13 communities. Since then, the Northern Czar
became known as the United States of Czar (USC).
● Soon, the Legislature of USC introduced fundamental rights to its citizens except to
the minority Zebestians community. In the 18th century, a person from the Zebestian
community became the president of USC and advocated those rights be provided to
Zebestians as well. This was denied by some federal states especially the State of
Vexas so violently so that the President was forced to march troops in Vexas to stop
the revolt, which resulted in Vexas demanding secession from the USC. The case
regarding the same was filed before the Supreme Court of Czar.
● The Supreme Court of Czar held that the State of Vexas will continue to be a federal
state of USC and cannot secede from it and USC has received definite form,
character, and sanction from the Articles of Confederation.

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● Until the 19th century, the success of the Industrial Revolution resulted many
countries to look for a new colony and exploit its unused resources, resulting in two
massive World Wars. After the end of the Second World War, an international
organization UNO was formed to prevent the exploitation of people's basic human
rights worldwide.
● UDHR and ICCPR are the two most important documents which provide for basic
human rights to all human beings throughout the world and these rights are
inalienable, indestructible and cannot be taken away or infringed by the states who are
part of the convention without any proper justification. Art. 1 of the ICCPR provides
for the right to self– determination. Many countries, such as the USSR, had provided
for the right to secede from the Union but still many countries do not offer the right.
● Indiana got independence from Feloshia in 1947. Indiana was able to include the State
of Kaloshia in its territory by making the king of the state sign the Instrument of
Accession. Section 6 of the Government of Indiana Act, 1935 stated that if a state
wants to be part of Indiana, it can be so by expressing its consent through an
Instrument of Accession on such terms and conditions as agreed.
● Having ratified the Charter of the United Nations & ICCPR, Indiana brought the
106th Constitutional Amendment Bill, 2020, providing the states with the right to
secede from the Union.
● The majority population of Indiana practices Induism, while in Kaloshia, its Drakism.
This, sometimes, causes conflict of interest but gets resolved quickly. Since 2014, IJP
a right-wing party has attained majority in the centre, increasing tussle between centre
and State of Kaloshia. Though, ISP, a regional party has always been in majority in
Kaloshia in 2022, they had to form a coalition government with IJP.
● In Kaloshia, a girl following the Drakism religion was denied entry into school
because she wore a Hijab, a part of their custom. To settle this issue, the Government
of Kaloshia notified under Sec 133(2) of the Kaloshia Education Act that a student
wearing Hijab will not be allowed to attend educational institutions, be it government
or private. This fumed the ongoing protests.
● Aliza Firdos, and many others, challenged the notification before the High Court of
Kaloshia a writ petition for violating the doctrine of proportionality. The High Court
of Kaloshia held the notification to be constitutionally valid, remarking that wearing
Hijab is not an essential religious practice. Protests arose further after the judgment
was passed with the ISP backing away from the coalition for not being consulted

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before releasing the notification. Due to the intensifying demonstrations, the

government-imposed President’s rule in Kaloshia on the ground of failure of
constitutional machinery.
● The President’s rule further aggravated the hurt sentiments of the Kaloshia people so
much so that the Article 3A of the Constitution was invoked to secede Kaloshia from
the Indiana Union.
● Meanwhile, IYLA approached the President stating the 106th amendment to be
unconstitutional and against Art. 1 of the Constitution. The President of Indiana
transferred the dispute to the Supreme Court for adjudication under Art. 143 of the
Constitution of Indiana.
● The former Deputy Chief Minister of Kaloshia, Akhandanand Tripathi, filed a writ
petition before the Supreme Court of Indiana against the imposition of the President’s
rule. He stated that the Governor was not allowed to give an opportunity to possible
governments nor the state government was given the opportunity to control the
ongoing protests.
● Along with these two petitions, a Special Leave Petition on the Hijab-ban issue by
Aliza Firdos and other students is clubbed by the Hon’ble Supreme Court.

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STATEMENT OF ISSUES

1. WHETHER THE WEARING OF A HIJAB IS A FUNDAMENTAL RIGHT UNDER Art.

19 (1) (A) AND Art. 25 OF THE CONSTITUTION OF INDIANA?

2. WHETHER THE 106TH CONSTITUTIONAL AMENDMENT ACT, 2022 IS,

CONSTITUTIONALLY VALID?

3. WHETHER THE IMPOSITION OF THE PRESIDENT'S RULE IN THE STATE OF

KALOSHIA WAS CONSTITUTIONALLY VALID?

4. WHETHER THE STATE OF KALOSHIA CAN BE GIVEN THE RIGHT TO SECEDE

FROM THE UNION OF INDIANA?

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SUMMARY OF ARGUMENTS

I. WHETHER THE WEARING OF A HIJAB IS A FUNDAMENTAL RIGHT

UNDER Art. 19 (1) (A) AND Art. 25 OF THE CONSTITUTION OF INDIANA?

It is humbly submitted before this hon’ble court that practice of wearing a Hijab does not
qualify the criteria for religious practice to qualify for the Essential Religious Practice Test.
The ban on Hijab is no violation of the freedom of religion of girls. The action of prescribing
uniform is not arbitrary, and is also in consonance with the Reasonable Classification Test.
Article 19(1)(a) which elucidates freedom of speech and expression, also mandates the
preservation of public order as one of the added grounds for imposing restrictions, and
additionally, the government order banning hijab follows the basic premises of the test of
reasonableness. Taking into consideration all these points, the counsel is of the firm opinion
that government order does not violate the petitioners’ fundamental rights under Articles 14,
19(1)(a), and 21 of the Constitution. By adhering to the principle of equality and neutrality
among the various religious groups and communities regulated the religious practice, it was a
necessary intervention on the part of the state in the interest of public order and is not
contrary to Secularism.

II. WHETHER THE 106TH CONSTITUTIONAL AMENDMENT ACT, 2022,

CONSTITUTIONALLY VALID?

The counsel humbly submits that the amendment confers an inalienable human right to the
people and is constitutional and valid. The Counsel humbly contends that a right to secession
means that a subunit has the right to leave the parent state. It was high time we as a country
decided to recognized the right of self-determination, an inalienable or indestructible right
which cannot be taken away or infringed by the states without any proper justification.

III. WHETHER THE IMPOSITION OF THE PRESIDENT'S RULE IN THE STATE

OF KALOSHIA WAS CONSTITUTIONALLY VALID?

It is humbly submitted that the imposition of President rule in the State of Kaloshia is valid
and constitutional on two grounds. Firstly, the State of Kaloshia was witnessing the protest
relating to the hijab ban which was getting more violent and intensifying and, in such
situations, there was no government in the state which could have prevented or managed the
looming law and order issue, therefore application of art. 356 was justified. Secondly, the

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State of Kaloshia was witnessing a case where there was no political party capable of forming
the government and the breakdown of coalition government is a valid ground for the
invocation of the president's rule under art. 356.

IV. WHETHER THE STATE OF KALOSHIA CAN BE GIVEN THE RIGHT TO

SECEDE FROM THE UNION OF INDIANA?

The counsel humbly submits Indiana’s constitutional and statutory position does not prohibit
the possibility of claims for right to self-determination and secession of territories from
Indiana. Right of self-determination falls under sovereign right of the state and seeing the
history of the state of Kaloshia, protection of minority community and preservation of their
inalienable human right forms the valid ground and therefore Kaloshia can be given the right
to secede.

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ARGUMENTS ADVANCED

I. WHETHER THE WEARING OF A HIJAB IS A FUNDAMENTAL RIGHT

UNDER ARTICLE 19 (1) (A) AND ARTICLE 25 OF THE CONSTITUTION
OF INDIANA?

1. Wearing of Hijab is not a fundamental right guaranteed under Article

19 (1)(a).
(1) It is the humble submission of the respondents that the wearing of hijab
is not guaranteed under Article 19(1)(a) of the Constitution1. Article
19(1)(a) of the Constitution secures to every citizen the right to
freedom of speech and expression. Freedom of speech and expression
has a well-recognized connotation which means the liberty to express
one’s views, opinions and beliefs.2 This constitutional provision should
be read with words of liberty of thought, expression, belief, faith and
worship as it is intrinsically linked with the preambular objectives.3
(2) Nonetheless, the right guaranteed under article 19(1)(a) is not absolute
and uncontrolled. The state may make a law imposing reasonable
restrictions on the exercise of the right to freedom of speech and
expression in the interest of the security of the state, friendly relations
with the foreign state, public order, decency, morality, sovereignty and
integrity of Indiana or in relation to contempt of court, defamation or
incitement to an offence.4
(3) Allowing the hijab in public institutions will amount to discrimination
between practicing Drakists, non-practicing Drakists and non-
believers. Different religious symbols may inculcate a feeling of
difference between the individuals leading to fights, indiscipline, and
social separateness. In the present case, the public institution being
school, it must be completely protected as they are, first and foremost,
the place where the values bequeathed to us are acquired and passed
on.

1
Art. 19, the Constitution of India.
2
Radha Mohan Lal v Rajasthan High Court, AIR 2003 SC 1467.
3
Devidas Ramchandra Tuljapurkar v State of Maharashtra, AIR 2015 SC 2612.
4
NK Bajpai v Union of India, AIR 2012 SC 1310.

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(4) Therefore, banning religious symbols is a step towards the

constitutionally cherished goal of secularism and putting reasonable
restrictions on the grounds of public order over Hijab is justified.
(5) It may be noticed that clause (2) of Article 19 uses the words “in the
interest of public order” and not “for the maintenance of public order”.
A law may not be designed to directly maintain the public order and
yet it may be enacted in the interest of public order if it assists or is
conducive to the maintenance of public order.5
(6) Moreover, freedom of speech and expression can be curtailed by
putting reasonable restrictions on the ground of “morality” as
mentioned in Article 19 (2). The scope of the word “morality” is not
defined under the Constitution. However, the Court in various
judgments have interpreted “morality” as “constitutional morality” and
not as public morality.6 Constitutional morality basically means the
adherence to the core principles of constitutional equality.7
(7) The objective of the order banning hijab is to maintain “equality” and
“integrity” among the students. As the objectives are covered under
‘constitutional morality’ phrase, therefore, the order banning hijab in
educational institutions of Kaloshia is covered under the ground of
‘morality’ that is mentioned as a ground for putting reasonable
restrictions on Article 19(1)(a).
(8) It hardly needs to be stated that the content and scope of a right, in
terms of its exercise, are circumstantially dependent. Ordinarily,
liberties of persons stand curtailed inter-alia by his position, placement
and the like. The extent of autonomy is enormous at home, since
ordinarily a residence of a person is treated as his inviolable castle.
However, in qualified public places like schools, courts, war rooms,
defence camp, etc., the freedom of individuals as of necessity, is
curtailed consistent with the discipline and decorum and function and
purpose.8
2. The government notification passes the test of reasonability.
5
Ramjilal Modi v State of UP, AIR 1957 SC 620.
6
Navtej Singh Johar v Union of India, (2018) 10 SCC 1.
7
Indian Young Lawyers Association v. Union of India, (2019) 11 SCC 1.
8
State of Rajasthan v. Union of India, (1977) 3 SCC 592.

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(1) Reasonableness under Article 19(2) demands proportionality: the

phrase reasonable restrictions connotes that the limitation imposed
upon a person in the enjoyment of a right should not be arbitrary or of
an excessive nature. Doctrine of proportionality is now frequently
invoked for determining the reasonableness of a restriction under this
clause.9 The measure taken should “correspond to a real need and the
means must be appropriate” to achieve the stated objectives.10
(2) The object of the notification is to maintain equality and integrity
among students and to maintain dignity, decorum and discipline, thus
ensuring public order, in the institution.
(3) If everyone is allowed to wear religious symbols in school, there will
be no end. What will happen if people from other cultural backgrounds
also start to insist on displaying the same within educational premises.
Further, seeing everyone dressed alike promotes solidarity and a sense
of belonging.
(4) All public places have a certain degree of discipline and limitations
and the degree of enjoyment of a Right by an individual inside his
house or anywhere outside a public space is different to what he or she
would enjoy once they are in a public space.
(5) The ground of public order under Article 19(2) can be invoked for
placing reasonable restrictions on Article 19(1)(a) even in cases when
there is likelihood of disruption within the educational institute.11
(6) Therefore, the said order passes the test of proportionality as the
grounds, for restricting the freedom of speech and expression, are
reasonable in nature.
(7) The test of reasonability simply, asks: “Does the impugned law, in its
pith and substance, whatever may be its form and object, deal with any
of the fundamental rights conferred by Article 19(1)? If it does, does it
abridge or abrogate any of those rights? And even if it does not, in its
pith and substance, deal with any of the fundamental rights conferred

9
Modern Dental College & Research Centre v. State of MP., (2016) 7 SCC 353.
10
Ibid.
11
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

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by Article 19(1), is the direct and inevitable effect of the impugned law
such as to abridge or abrogate any of those rights?”12
(8) The mere fact that the impugned law incidentally, remotely or
collaterally has the effect of abridging or abrogating those rights, will
not satisfy the test. If the answer to the above queries be in the
affirmative, the impugned law in order to be valid, must pass the test of
reasonableness under Article 19. But if the impact of the law on any of
the rights under clause (1) of Article 19 is merely incidental, indirect,
remote or collateral and is dependent upon factors which may or may
not come into play, the anvil of Article 19 will not be available for
judging its validity.”
(9) These Sections and the Rule intend to give effect to constitutional
secularism and to the ideals that animate Articles 39(f) & 51(A). The
children have to develop in a healthy manner and in conditions of
‘freedom and dignity’; the school has to promote the spirit of harmony
and common brotherhood transcending religious, linguistic, regional
or sectional diversities. The practices that are derogatory to the dignity
of women have to be renounced.13
(10) The right to wear hijab if claimed under Article 19(1)(a), the
provisions of Article 25 are not invocable as the simultaneous claims
made under these two provisions are not only mutually exclusive but
denuding of each other. In addition, be it the freedom of conscience, be
it the right to practice religion, be it the right to expression or be it the
right to privacy, all they are not absolute rights and therefore, are
susceptible to reasonable restriction or regulation by law, of course
subject to the riders prescribed.14
(11) It hardly needs to be stated that schools are qualified public places that
are structured predominantly for imparting educational instructions to
the students. Such qualified Spaces by their very nature repeal the
assertion of individual rights to the detriment of the general discipline

12
Bennett Coleman & Co. v Union of India, (1971) 2 SCC 788.
13
Mohd. Ahmed Khan v. Shah Bano Begam, (1985) 2 SCC 556.
14
Chintaman Rao v. State of Madhya Pradesh, 1950 SCC OnLine SC 34.

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and decorum. Even the substantive rights themselves metamorphize

into a kind of derivatives rights in such places."15
(12) schools are 'qualified public places' and therefore exclusion of religious
symbols is justified in light of 1995 Curricula Regulation that are
premised on the objective of secular education, uniformity and
standardization.16
(13) in 'qualified public places' like schools, courts, war rooms, defence
camps, etc., the freedom of individuals as of necessity, is curtailed
consistent with their discipline & decorum and function & purpose.
Since wearing hijab as a facet of expression protected under Article
19(1)(a) is being debated, we may profitably advert to the 'free speech
jurisprudence' in other jurisdictions17.
(14) It is relevant to quote what Dr. B.R. Ambedkar in his book
'PAKISTAN OR THE PARTITION OF INDIA' (1945) at Chapter X,
Part 1 titled 'Social Stagnation' wrote:
"...A woman (of the relevant religion) is allowed to see only her son,
brothers, father, uncles, and husband, or any other near relation who
may be admitted to a position of trust. She cannot even go to the
Mosque to pray, and must wear burka (veil) whenever she has to go
out. Such seclusion cannot have its deteriorating effect upon the
physical constitution of women. Being completely secluded from the
outer world, they engage their minds in petty family quarrels with the
result that they become narrow and restrictive in their outlook. They
cannot take part in any outdoor activity and are weighed down by a
slavish mentality and an inferiority complex. Purdah women in
particular become helpless. Considering the large number of purdah
women, one can easily understand the vastness and seriousness of the
problem of purdah."

(15) What the Chief Architect of our Constitution observed more than half a
century ago about the purdah practice equally applies to wearing of
hijab. there is a lot of scope for the argument that insistence on wearing
15
Resham v. State of Karnataka, MANU/KA/1012/2022.
16
Adisaiva Sivachariyargal Nala sangam v. State of Tamil Nadu, MANU/SC/1454/2015.
17
Resham and Ors. v. State of Karnataka and Ors. MANU/KA/1012/2022.

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of purdah, veil, or headgear in any community may hinder the process

of emancipation of woman in general. That militates against our
constitutional spirit of 'equal opportunity' of 'public participation' and
'positive secularism'. Prescription of school dress code to the exclusion
of hijab, bhagwa, or any other apparel symbolic of religion can be a
step forward in the direction of emancipation and more particularly, to
the access to education. It hardly needs to be stated that this does not
rob off the autonomy of women or their right to education inasmuch as
they can wear any apparel of their choice outside the classroom.18

3. Wearing of Hijab is not a Fundamental Right guaranteed under

article 25.
It is a humble submission from the side of the respondent that wearing of
hijab is not protected under article 25 of the Constitution of Indiana. To
strengthen this submission the respondents' arguments are many folds.

(1) Wearing of hijab does not qualifies as an essential religious practice

for drakism: It can hardly be argued that hijab being a matter of attire,
can be justifiably treated as fundamental to Islamic faith. It is not that
if the alleged practice of wearing hijab is not adhered to, those not
wearing hijab become the sinners, the religion loses its glory and it
ceases to be a religion. Petitioners have miserably failed to meet the
threshold requirement of pleadings and proof as to why wearing hijab
is an inviolable religious practice and much less a part of ‘essential
religious practice’.
i. Article 25 guarantees to every person the freedom of
conscience and the free profession, practice, and propagation of
religion, subject to public order, morality and health.
ii. The protection of Articles 25 is not limited to matters of
doctrine or belief, they extend also to acts done in pursuance of
religion, and therefore contain a guarantee for rituals and

18
Resham and Ors. v. State of Karnataka and Ors., MANU/KA/1012/2022

Page 22 of 43
RESPONDENT TC- O

observances, ceremonies and modes of worship which are

integral parts of religion.19
iii. In Madaras v. Sri Laxmindra Thirtha Swamiar of Sri Shirur
mutt,20 Court held that the doctrine of “essentiality” provides
that the term “religion” will cover all rituals and practices
“integral” to a religion.
iv. The protection of essential practice means that liberty is beyond
the interference by the State and the State has the obligation to
respect the essential religious practice of a religion.
v. In Ratilal's21 case, the Hon'ble Supreme Court observed that
what constitutes the essential part of a religion has to be
ascertained primarily from the religious doctrine itself.
vi. Ordinarily, a religious practice in order to be called an
‘essential religious practice’ should have the following
indicia:22
a) Not every activity associated with the religion is essential to
such religion. Practice should be fundamental to religion and it
should be from the time immemorial.

b) Foundation of the practice must precede the religion itself or

should be co-founded at the origin of the religion.

c) Such practice must form the cornerstone of religion itself. If

that practice is not observed or followed, it would result in the
change of religion itself and,

d) Such practice must be binding to the nature of the religion

itself and it must be compelling.

(2) Practice should be fundamental to religion and it should be from time

immemorial.

19
Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853.
20
The Commissioner, Hindu Religious Endowments, Madras v. Sri Laxmindra Thirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282.
21
Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388.
22
Supra 7.

Page 23 of 43
RESPONDENT TC- O

i. It is humbly submitted that the practice of wearing hijab is not

fundamental to Drakism and therefore, not an essential
religious practice of Islam religion.
ii. It is not a prescribed and mandatory practice to wear the hijab
for women. As observed in Resham v State of Karnataka23 , the
word hijab does not occur in any holy book, for veiling the face
of an ordinary Muslim woman. It was only meant for the wives
of the Prophet.
iii. Likewise, as mentioned in Surah Al-Ahzab, verse 53, no screen
or hijab is mentioned, but only a veil to cover the bosom, and
modesty in dress.24
iv. The same view has been expressed by Canadian writers Syed
Mumtaz Ali and Rabia Mills in their essay Social Degradation
of Women a Crime and a Libel on Islam that the commandment
in the Qur'an in Chapter 33, verse 53, with respect to the Hijab,
applies only to the "Mothers of the believers" viz. Wives of the
Holy Prophet and it does not cover all women.25
v. In Chapter 33 known as 'The Clans" in verse 59 of the Holy
book, the command is as follows: "O Prophet, tell your wives
and your daughters and the women of the believers to lower
over them a portion of their jilbabs. That is more suitable that
they will be known and not be harmed."
vi. It needs to be stated that wearing hijab is not religion-specific
rather than it was sociocultural practice in the region. At the
most the practice of wearing this apparel may have something
to do with culture but certainly not with religion. This gains
credence from Yusuf Ali’s Note 3764 to verse 59 which runs as
under: “...The times were those of insecurity (see next verse)
and they were asked to cover themselves with outer garments
when walking abroad. It was never contemplated that they
should be confined to their houses like prisoners.”

23
Resham v. State of Karnataka, 2022 SCC OnLine Kar 315.
24
M. Ajmal Khan v. Election Commission of India, 2006 SCC OnLine Mad 794.
25
ibid.

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RESPONDENT TC- O

vii. Therefore, although the practice of wearing a hijab is followed

from time immemorial, the practice itself is not of a religious
nature rather it is of a socio-cultural practice. Thus, it is neither
fundamental to religion nor it is of a religious nature.
viii. Wearing hijab at the most may be a ‘cultural’ practice which
has nothing to do with religion. Culture and religion are
different from each other. Wearing hijab or headscarf is not a
part of ‘essential religious practice’ of Drakism faith.
(3) Such practice must form the cornerstone of religion itself.

i. In Indian Young Lawyers Association26 The Supreme Court stated

that: “in determining the essentiality of a practice, it is crucial to
consider whether the practice is prescribed to be of an obligatory
nature within that religion. If a practice is optional, it has been held
that it cannot be said to be ‘essential’ to a religion.
ii. Firstly, in footnote 3767 to verse 59, Yusuf Ali opines: “This rule
was not absolute: if for any reason it could not be observed.”27 This
particular statement is sufficient to show that the practice of
wearing hijab was not intended to be made obligatory.
iii. The religious books show concern for the cases of ‘molestation of
innocent women’ and therefore, it recommended wearing of hijab
and other apparel as a measure of social security.28 This gains
credence from Yusuf Ali’s Note 3764 to verse 59 which runs as
follows: “…The times were those of insecurity and they were
asked to cover themselves with outer garments when walking
abroad. It was never contemplated that they should be confined to
their houses like prisoners.29
iv. Furthermore, it is relevant to refer to the historical aspects of this
particular verse30 as vividly explained by Abdullah Yusuf Ali
himself at footnote 3766: “the object was not to restrict the liberty
of women, but to protect them from harm and molestation under
26
Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267.
27
Supra 19.
28
Ibid.
29
Ibid.
30
sūra (xxxiii), verse 59 of Holy Quran

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RESPONDENT TC- O

the conditions then existing in Medina. In the East and in the West
a distinctive public dress of some sort or another has always been a
badge of honor or distinction, both among men and women. This
can be traced back to the earliest civilizations. Assyrian Law in its
palmist days (say, 7th century B.C.), enjoined the veiling of
married women and forbade the veiling of slaves and women of ill
fame” Thus, wearing hijab was recommended as a measure of
social security for women and to facilitate their safe access to the
public domain.31
v. Even though modesty in dress is stated in various verses but firstly
hijab is not specifically mentioned for all women practicing the
faith and secondly, such dresses were prescribed due to prevailing
social needs. It was stated in the recommendary sense so that it can
be applied according to social needs.
vi. Lastly, the Holy book does not mandate the wearing of hijab or
headgear for Muslim women. Whatever is stated in the sūras is
only directory because of the absence of prescription of penalty or
penance for not wearing hijab, the linguistic structure of verses
supports this view.32
vii. It can be reasonably assumed that the practice of wearing hijab had
a thick nexus to the socio-cultural conditions then prevalent in the
region. The veil was a safe means for the women to leave the
confines of their homes. Thus, wearing hijab in no sense can be
said to be in obligatory nature.

(4) DISALLOWING WEARING OF HIJAB WITHIN THE SCHOOL

DOES NOT VIOLATES FREEDOM OF RELIGION OF THE
MUSLIM GIRLS.

i. Under Article 25, a person has two-fold freedoms:

a. Freedom of the conscience;
b. Freedom to profess, practice and propagate religion.

31
Supra 19.
32
Ibid.

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RESPONDENT TC- O

ii. To ‘practice’ religion is to perform the prescribed religious order in

which an individual believes. To ‘propagate’ means to spread and
publicize his religious views for the edification of others but
without any element of coercion.33
iii. Like all fundamental rights, the state can restrict the right to
freedom of religion on grounds of public order, morality, health,
further it is subject to other fundamental rights in part III. As held
in the Shirur Mutt case34, the term “religion” will cover all rituals
and practices “integral” to a religion. The test to determine what is
integral is the “essential religious practices” test. As judicial
precedents show the Courts have assumed and exercised the power
to ascertain if a religious practice followed by any community is
indeed an “essential practice” of its religion or not, holding that
only such “essential” practices are entitled to protection under
Article 25 of the Constitution.

4. Hijab is not a quintessential aspect of the religion.

(1) The Quran, holy book for Muslim, another community which practices hijab,
does not prescribe the hijab for Muslim women. It was only meant for the
wives of the Prophet; the Bedouin Arabs would talk freely with the Prophet's
wives after dinner, not being acquainted with the pertinent cultural norms. The
Prophet did not like it and hence it was revealed that men should leave after
dinner; if they talk with the wives of the Prophet, they should talk from behind
the curtain, hijab. Seen in proper context, it is therefore clear that a reference
has only been made to a curtain and not to a face veil. For other women, the
35
word hijab or burqa does not occur at all. The practice of wearing hijab is
advisory rather than being obligatory and with the advancement of time, the
practices can be modified.
(2) The Quranic principles in relation with the dress code for women only
prescribes for lowering of gaze instead of hiding the face behind the hijab.

33
Rev. Stanislaus v State of M.P, AIR 1977 SC 908.
34
Supra 16.
35
Dr. Asghar Ali Engineer, Rights of Women and Muslim Societies, Vol. 7, Socio-Legal Review, NLSIU, p. 44.

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Although the Quran does not put any restrictions on women, the hadiths were
employed to put severe restrictions on the women. 36 In the ancient time, the
hijab was worn by the women to distinguish themselves from the slave girls,
however, in the present time these practices have lost their sanctity. The
commentaries (hadith) reflected contradicting principles against the basic
tenets of the Holy Quran. This contradicting principle lowers the relevancy of
the prevailing practices.
(3) Thus, it can be concluded that the practices of wearing hijab have now become
redundant with the time and do not form the integral part of the religion and
such practices are not considered as the essential religious practice and hence,
cannot be guaranteed the protection under Article 25(1) of the Constitution of
India.

5. Hijab is against human dignity and personal liberty

(1) Permitting the petitioner - students to wear hijab (head - scarf) would offend
the tenets of human dignity inasmuch as, the practice robs away the individual
choice of women; the so-called religious practice if claimed as a matter of
right, the claimant has to prima facie satisfy its constitutional morality37.
(2) There is a big shift in the judicial approach to the very idea of essential
religious practice in Islamic faith since the decision in Shayara Bano38, which
the case of the petitioners overlooks. To be an essential religious practice that
merits protection under Article 25, it has to be shown to be essential to the
religion concerned, in the sense that if the practice is renounced, the religion in
question ceases to be the religion.
(3) It is humbly submitted that the constitutional courts have frequently invoked
the principle of constitutional morality.39 The Naz Foundation case40 gave

36
Asghar Ali Engineer, Quran, Hadith and Women, DAWN (25/09/2009),
https://www.dawn.com/news/492444/quran-hadith-women last seen on 03/02/2023.
37
Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India, (2017) 10 SCC 1.
38
Shayara Bano v. Union of India and Ors,(2017) 9 SCC 1.
39
Naz Foundation v. Govt of NCT 2009 SCC OnLine Del 1762.
40
Ibid.

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RESPONDENT TC- O

currency to the idea that constitutional morality could form a valid basis for
the court to arrive at a decision.
(4) In the context of the present era, constitutional morality can be primarily
defined to be constituted of two sub-classifications: as a spirit or force of the
Constitution and as the antonym of popular morality.
(5) In Manoj Narula v. UOI41 it was observed that constitutional morality works at
the fulcrum and guides as a laser beam in institution building. The traditions
and conventions have to grow to sustain the value of such morality. The
democratic values survive and become successful where the people at large
and the persons in charge of the institution are strictly guided by the
constitutional parameters without paving the path of deviancy and reflecting in
action the primary concern to maintain institutional integrity and the requisite
constitutional restraints.42
(6) In Indian Young Lawyers’ Association v State of Kerala 43, the Apex Court
added another dimension to the concept of essential religious practice i.e., a
religious practice if proved to be an integral part of a religion gets its foot in
the door, after which it has to cross another threshold i.e., the practice must be
in consonance with the constitutional values. The court observed; “for
decades, this Court has witnessed claims resting on the essentiality of a
practice that militates against the constitutional protection of dignity and
individual freedom under the Constitution.
(7) It is the duty of the courts to ensure that what is protected is in conformity
with fundamental constitutional values and guarantees and accords with
constitutional morality. While the Constitution is solicitous in its protection of
religious freedom as well as denominational rights, it must be understood that
dignity, liberty and equality constitute the trinity which defines the faith of the
Constitution. Together, these three values combine to define a constitutional
order of priorities. Practices or beliefs which detract from these foundational
values cannot claim legitimacy. There is a multiplicity of intersecting
constitutional values and interests involved in determining the essentiality of

41
Manoj Narula v. Union of India, (2014) 9 SCC 1.
42
Indian Young Lawyers Association v. Union of India, (2019) 11 SCC 1.
43
Ibid.

Page 29 of 43
RESPONDENT TC- O

religious practices. In order to achieve a balance between competing rights and

interests, the test of essentiality is infused with these necessary limitations.”
(8) Thus, even, if we give room to the other interpretations for a moment, the
practice of wearing hijab falls on the face of the threshold of constitutional
morality, meaning even if it were to accept that wearing the hijab is an
Essential Religious Practice, the practice would receive constitutional
protection under Article 25 of the Constitution only if it does not conflict with
constitutional values such as individual freedom and human dignity. The
practice of wearing hijab is against human dignity as well as the liberty of the
individual. Therefore, wearing a hijab goes against the principle of
constitutional morality.
(9) The origin of all forms of veils from ghoonghat to hijab, is shrouded in the
deep rooted patriarchal and misogynistic ideology that has from a very long-
time oppressed women in the name of modesty. The practice of wearing a
hijab traditionally arises out of the conception of modesty associated with a
woman’s hair/upper body. By associating Hijab or any form of veil with
modesty, a woman was taught, directly or indirectly, from an early age that
she is a sexual object, and it is her responsibility to hide her features from the
opposite sex, lest she attract them. A heavy burden for modesty is placed
squarely on her shoulders. So many women have been traumatized by such an
upbringing, which, in the opinion of the counsel borders on child abuse.
Societal pressures heavily insisted women to wear the hijab at a very young
age in devotion to their religion.44 It is against human dignity as it is based on
a very regressive and orthodox approach. The hijab evolved as a measure to
protect the security of women, and bore a nexus to the sociocultural conditions
that existed at the time the practice began. Today, well-intentioned women are
wearing headscarves in interfaith “solidarity.” But, to us, they stand on the
wrong side of a lethal war of ideas that sexually objectifies women as vessels
for honor and temptation, absolving men of personal responsibility. In the
ancient time, the hijab was worn by the women to distinguish themselves from
the slave girls, however, in the present time these practices have lost their
relevance and sanctity.45

44
Supra 19.
45
Supra 33.

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RESPONDENT TC- O

(10) Further, the practice of wearing Hijab as claimed by its supporters to be

obligatory hits at the personal liberty of an individual and the choice of attire.
What women choose to wear and whether they choose to cover or uncover is a
matter of “choice.” It cannot be a measure of modesty and immodesty. This is
true for patriarchal imposition of religious practices across the spectrum.

II. WHETHER THE 106TH CONSTITUTIONAL AMENDMENT ACT, 2022 IS,

CONSTITUTIONALLY VALID?

1. The amendment confers an inalienable human right to the people and thus is
constitutional and valid.
(1) The Counsel humbly contends that a right to secession means that a subunit
has the right to leave the parent state. Secession debates occur against two
background rules of international law. First, states have rights to territorial
integrity, and cannot be dismembered. Second, peoples— including national
minorities—have the right to self-determination.
(2) This does not mean that there is a right to secession under international law
outside the context of decolonization, but that secession is one way in which
states can meet their obligation to provide self-determination to subnational
groups. However, the underlying idea is that mutual consent is required for
secession to be permissible. Constitutions can provide frameworks for
determining this consent. The 106th constitutional amendment provides for the
same and is therefore constitutionally valid.
(3) In many countries, constitutions stipulate procedures to be followed if a
subunit seeks to secede. Typically, these will involve, at a minimum, the
consent of the population in the subunit as expressed through a referendum.
Once this step is taken, the decision might require approval by the national
parliament or some other step. This amendment also follows the same
procedure and nothing arbitrary or against the law of the land.
(4) It is the natural right of a people to form a Government for their mutual
protection, for the promotion of their mutual welfare, and for such other
purposes as they may deem most conducive to their mutual happiness and
prosperity; but if for any cause the Government so formed should become
inimical to the rights and interests of the people, instead of affording
protection to their persons and property, and securing the happiness and

Page 31 of 43
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prosperity, to attain which it was established, it is the natural right of the

people to change the Government.
(5) So, if the rights of the people of a sovereign country as recognized by the
Constitution, are not secured to them by the Government, and the people of
any State have no other means to redress their grievances except by separating
themselves from their oppressors, it is their undoubted natural right to do so.
(6) It was high time we as a country decided to recognize the right of self-
determination, an inalienable or indestructible right which cannot be taken
away or infringed by the states without any proper justification.46
(7) The words of the first Prime Minister from the floor of the House of People
support this submission. “We want no people in the territory of India against
their will and with the help of armed forces. We want no forced marriages and
no forced unions. This great Republic of India is a free, voluntary, friendly and
affectionate union of the States of India." We openly said to them and to the
world that we will give them a chance to decide, and will stand by that
decision in this matter. Therefore, we must honour that pledge." 47
(8) This only raises the bar for the respondents in their duty to provide a
government which ensures that the constitutional goals of liberty, secularism
and freedom are realised in the day-to-day lives of the people it serves.
(9) Further, 106th Amendment is enacted in the light of Art. 253 which provides
the Legislation power to give effect to international agreement. Article 253
states that, “Notwithstanding anything in the foregoing provisions of this
Chapter, Parliament has power to make any law for the whole or any part of
the territory of India for implementing any treaty, agreement or convention
with any other country or countries or any decision made at any international
conference, association or other body.”
(10) The enactment is further justified by Article 51 (c) which states, “The State
shall endeavour to foster respect for international law and treaty obligations in
the dealings of organised peoples with one another; and encourage settlement
46
Para 19, Moot Proposition.
47
Paras Diwan, Kashmir and the Indian Union: The Legal Position, 02 (03),The International and Comparative
Law Quarterly, Jul., 1953, 2, No. 3 (Jul., 1953), pp. 333-353 Published by: Cambridge
University,333,344(1953), available at https://www.jstor.org/stable/755438, last seen on 03/02/23.

Page 32 of 43
RESPONDENT TC- O

of international disputes by arbitration. In the present since India is a party to

various International covenants particularly ICCPR which it ratified as well
hence, it is justified in bringing the said amendment in the light of the
aforesaid amendment.

2. International covenants and agreement provide the backdrop of the 106th

amendment.

(1) The right to self-determination is included in the UN Charter. This

incorporation is, according to Ove Bring, not just a mere codification but also
a sign of a development of a new principle in international law, namely the
principle of people’s equal rights and self- determination of people, as it is
expressed in article 1(2) and 55 of the charter.48
(2) Under the United Nations Charter self-determination is mentioned in Article
1(2) as well as Article 55. In accordance with the wishes of the Assembly
expressed in 1952, both the ICCPR and the ICESCR (adopted by the GA in
1966) included the right of self-determination in their Common Article 1.52.
This article stipulates in its first paragraph that: All peoples have the right of
self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development49.
(3) The right to self-determination is also recognized in other international legal
documents. For example, the Final Act of the Conference on Security and Co-
operation in Europe,50 “The participating States will respect the equal rights of
peoples and their right to self-determination, acting at all times in conformity
with the purposes and principles of the Charter of the United Nations and with
the relevant norms of international law, including those relating to territorial
integrity of States.”
(4) The 1970 Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation among States in accordance with the Charter of

48
Qadri, Nasir, The basis of right to Self-determination, International Islamic University Islamabad, (2018),
available at: https://www.researchgate.net/publication/329153669_The_basis_of_right_to_Self_determination,
last seen on 02/02/2023.
49
Ibid.
50
14 I.L.M. 1292 (1975) (Helsinki Final Act).

Page 33 of 43
RESPONDENT TC- O

the UN” (henceforth called “1970 Declaration”) “was meant to be a

clarification of the purposes and principles of the United Nations”.
(5) This resolution, which stipulated that “by virtue of the principle of equal rights
and self-determination of peoples enshrined in the Charter of the United
Nations, all people have the right freely to determine their political status”,
also imposed to all states the obligation to respect the right of self-
determination in accordance with the UN Charter.
(6) This resolution looks at self-determination in a wider context than the
domination of people by a ‘white’ power and thereby concludes the debate
between territorial integrity and self-determination’.
(7) The existence of the right of a people to self-determination is now so widely
recognized in international conventions that the principle has acquired a status
beyond "convention" and is considered a general principle of international
law.51
(8) Moreover, this amendment does not threaten the unity and integrity of the
State as the access to the right requires that the threshold step of characterising
as a group seeking self-determination.52

III. WHETHER THE IMPOSITION OF THE PRESIDENT'S RULE IN THE

STATE OF KALOSHIA WAS CONSTITUTIONALLY VALID?

1. The imposition of the President’s rule was done in accordance with the
provisions of Article 356 of the Constitution
(1) Scope and ambit of Article 356 of the Constitution: Article 356 provides that
if the President on receipt of a report from the Governor of a State or
otherwise, 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 President may proclaim president’s rule.53
(2) The phrase “cannot be carried on” in clause (1) of Article 356 does not mean
that it is impossible to carry on the Government of the State. It only means that

51
A. Cassese, Self-determination of peoples: A legal reappraisal (1995), at pp. 171-72; K. Doehring, "Self-
Determination", in B. Simma, ed., The Charter of the United Nations: A Commentary (1994), at p. 70.
52
Gautum Navlakha, Right for self-determination in India, International Conference for Human Rights and
Peace in the Philippines, available at: https://ichrp.net/right-of-self-determination-in-india/, last seen on
03/02/2023.
53
Art. 356, the Constitution of India.

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a situation has arisen that the Government of the State cannot carry on its
administration in accordance with the provisions of the Constitution.54
(3) It is not the violation of one provision or another of the Constitution which
bears no nexus to the object of the action under Article 356. The key word in
the marginal note of Article 356 that “the failure of constitutional machinery”
open up its mind of the operational area of Article 356(1). Suppose after
general elections held, no political party or coalition of parties or groups is
able to secure absolute majority in the legislative assembly, the situation has
arisen in which no political party is able to form stable Government, it would
be a case of completely demonstrable inability of any political party to form a
stable Government commanding the confidence of the majority members of
the legislature. It would be a case of failure of constitutional machinery. 55 The
present political crisis in the State of Kaloshia completely fits into the above
matrix and thus imposition of the president’s rule is justified.
(4) The source of the information on which the President would reach his
satisfaction is very wide. The word 'otherwise' imposes no restriction or
limitation on the source of information. The President might have the
information of the failure of the constitutional machinery from very secret
sources like C. B. I. or C. I. D. The very amplitude and undefined character of
the information on which the President is to be satisfied indicates that the
satisfaction and the source thereof are not justiciable.56
(5) The language, subject-matter of, and the policy behind Article 356 indicate
that both the satisfaction and the basis of the satisfaction are subjective and not
justiciable. The article occurs in the Chapter of Emergency Provisions. In an
extreme situation when the constitutional machinery fails to function in a
State, the Article is to be invoked. The question involves high executive and
administrative policy not susceptible to judicial determination.
(6) The power under the Article is not fettered by any limitations or pre-
conditions. What exactly is the nature of the situation that the President would
be keen on has not been indicated in the Article and no proper criteria have
been prescribed in Article indicating the guidelines for the exercise of the

54
S.R. Bommai v Union of India, (1994) 3 SCC 1.
55
Ibid.
56
Bijayananda Patnaik v. Union of India AIR 1974 Ori 52

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power.57 It was also stated that any number of considerations may enter the
decision of the President and that it is not possible to lay any guidelines
governing the exercise of the said power.58
(7) The Constituent Assembly debates59 mention that Article 355 was introduced
in order to make it clear that Article 356 is not deemed as a wanton invasion
by the Centre upon the authority of the province. Article 355 helps in the
interpretation of article 356 and states that - “It shall be the duty of the Union
to protect every State against external aggression and internal disturbance and
to ensure that the Government of every State is carried on in accordance with
the provisions of this Constitution."60
(8) Thus, an act which appears to be arbitrary or wanton on the part of Centre is
but an act in fulfillment of the duty and the obligation to protect every unit,
and also to maintain the Constitution. So far as such an obligation is
concerned, it will be found that it is not our Constitution alone which is going
to create this duty and this obligation. Similar clauses appear in the American
Constitution. They also occur in the Australian Constitution, where the
constitution, in express terms, provides that it shall be the duty of the Central
Government to protect the units or the States from external aggression or
internal commotion.61 Proclaiming the President’s rule is in virtue of this
obligation.
(9) The Constitution of India is a mixture of unitary and federal form of
Government. It is federal in peace and unitary in times of war, emergency and
grave situations, such as, failure of constitutional machinery envisaged in
Article 356 of the Constitution. As has been commented by the learned
commentator Dr. Basu, “failure of constitutional machinery” means such a
“break-down, which calls for immediate resort to Article 356, cause the
situation is such that it cannot be remedied by any other means.”62
(10) In the present case, state of Kaloshia was witnessing a case where there
was no political party capable to form the government and protest relating to

57
Ibid.
58
Ibid at 46.
59
Constituent Assembly Debates, Vol. IX, p. 133
60
Art. 355, the Constitution of India, 1950
61
Constituent Assembly Debates, Vol. IX, p. 133
62
DR. D.D. Basu, Commentary on the Constitution of India, 3459 (6th ed., 2010)

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hijab ban was getting more violent 63 and intensifying and in such situations,
there was no government in the state which could have prevented or managed
the looming law and order issue, therefore application of Art. 356 was the last
resort possible to prevent any mishappening.
2. The then situation of Kaloshia warranted the proclamation of President’s
rule and is, thus, justified.
(1) The counsel for the respondents’ states that the breakdown of coalition
government is a valid ground for the invocation of the president's rule and the
president is justified in the existing circumstances in the State of Kaloshia to
invoke Article 356.
(2) There is no constitutional provision which mandates the Governor to call upon
the leader of the majority party to form the Government. Further Articles 163
of the Constitution justifies the act of imposition of the president’s rule. It
gives the power to the Governor to exercise his discretionary powers as
provided for under the Constitution.
(3) If any question arises whether any matter is or is not a matter as respects
which the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be final, and the
validity of anything done by the Governor shall not be called in question on
the ground that he ought or ought not to have acted in his discretion.
(4) Moreover, the question whether any and if so, what, advice was tendered by
ministers to the Governor shall not be inquired into any Court.
(5) There is nothing in the provision that bounds the Governor to call the leader of
the party who commands the majority in the House to form a ministry. The
Governor in the exercise of his functions is to normally act with the aid and
advice of the Council of Ministers unless it appears otherwise in the context.64
(6) It was held in Golakh Behari Chhotray v. State of Orissa 65 that the Governor
exercise in his discretion in certain matters where he acts directly and does not
act with the aid and advice of the Council of Ministers. Take, for instance.
Article 356 of the Constitution. Provision has been made in this Article in case
of failure of constitutional machinery in the State. When the Governor sends a

63
Para 35, Moot Proposition.
64
Ibid at 48.
65
Golakh Behari Chhotray v. State of Orissa, 1971 SCC OnLine Ori 14.

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report to the President that the constitutional machinery of the State "has
failed, he is to act directly and not with the aid and advice of the Cabinet."
(7) In M.A Rasheed v State of Kerela 66, it was observed that where power is
conferred on public authorities to exercise the same when they are satisfied or
when it appears to them that a certain state of affairs existed the onus of
establishing the unreasonableness of their decision rests upon the person
challenging its validity.
(8) In Naga People's Movement of Human Rights v. Union of India, 67 apex Court
held that in a case of internal disturbance issuance of a proclamation under
Article 356 of the Constitution is justified and enables the President to assume
to himself all or any of the functions of the Government of the State. Internal
disturbance would depend on the gravity of the situation and if the President is
satisfied that a situation has arisen where the Government of the State cannot
be carried on in accordance with provisions of the Constitution, he can
proclaim president’s rule.
3. Proclamation of President’s rule was a decision taken in the absence of better
alternatives in the interests of the people involved.

(1) The counsel humbly submits that danger to national integration or security of
the State or aiding or abetting national disintegration or a claim for
independent sovereign status is one of those instances recognized by the
Court68 wherein constitutional breakdown may be justifiably invoked.
(2) It has been clearly stated that people of Kaloshia were protesting to secede
from the Union of Indiana.69 This claim for independent sovereign status
retracts any questions of judicial review on the proclamation.
(3) It has been contended that the State government should have been given the
first opportunity to control the ongoing protests. 70 This is conflicting at best as
the Indiana Samaj Party, one of the parties in the coalition government was
itself against the hijab ban notification, in opposition of which the protests had
originally started peacefully but gradually turned violent.

66
M.A Rasheed v. State of Kerela, (1974) 2 SCC 687.
67
Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109.
68
E. Giri Yadav v. Union of India, 2012 SCC OnLine AP 1008.
69
Para 38, proposition
70
Para 39, proposition

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(4) Moreover, the option of floor test, or inviting the parties to prove their
majority could not have been proved fruitful as the coalition government
broke despite many requests from the Indiana Janta Party, and the tussle
between the two has only increased. Even if some conciliation is brought
between the two, elements of horse trading, distributing portfolios to buy
allegiance and possibility of hung parliament in the remaining session might
prevent effective governance. Political instability, often a follow of these
situations is a great menace.
(5) A post poll alliance does not have the same sanctity or constitutional
credibility as a pre poll one. 71 A good example is the assembly poll in Uttar
Pradesh held in October 1996 where main political parties were not able to
form the government on its own and only after five months, post-poll alliance
could reach a certain power sharing arrangement.
(6) Citing the above-mentioned arguments, the counsel would like to conclude its
point that the proclamation of president’s rule was constitutionally valid and a
sound decision taken by the Centre after pondering all the options available in
order to make sure the interests of the people are not neglected and the unity
and integrity of the Union is not threatened.

IV. WHETHER THE STATE OF KALOSHIA CAN BE GIVEN THE RIGHT TO

SECEDE FROM THE UNION OF INDIANA?

The counsel humbly submits that Kaloshia can secede from the Union of Indiana and to
corroborate this contention by the following arguments-

1. Indiana is a party to various International Covenants providing and respecting the

right to self-determination.
(1) International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights adopted in 1966. The
Universal Declaration of Human Rights (hereinafter referred to as UDHR) and
the International Covenant on Civil and Political Rights (hereinafter referred
to as ICCPR) provide for the basic human rights to all human beings
throughout the world and these rights are inalienable, indestructible and
71
Sudhir Kumar, “Constitutional Position Of Coalition Government In India.” 72 The Indian Journal of
Political Science, 489–500, 2012, available at: JSTOR, http://www.jstor.org/stable/42761434, last seen on
02/02/ 2023.

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cannot be taken away or infringed by the states who are part of the convention
without any proper justification.72 Art. 1 of both the covenants states that
peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and
cultural development. Indiana ratified it long back in 1979 and therefore, the
State of Kaloshia is justified in seceding from the Union of India.
(2) Further there are other international laws as well which provide the right to
self-determination. Art. 1(2) of the UN Charter provides that one of its
purposes and principles is "to develop friendly relations among nations based
on respect for the principle of equal rights and self-determination of peoples,
and to take other appropriate measures to strengthen universal peace."
(3) Further, Art. 55 of the UN Charter contains provisions "with a view to the
creation of conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples."
(4) Friendly Relations Declaration of 1970 adopted by the UN General Assembly
which states, by virtue of the principle of equal rights and self-determination
of peoples enshrined in the Charter of the United Nations, all peoples have the
right freely to determine, without external interference, their political status
and to pursue their economic, social and cultural development, and every State
has the duty to respect this right in accordance with the provisions of the
Charter.
(5) These international rights form the basis of the 106th Constitutional
amendment and action of the Kaloshian government to demand secession is
thus justified.
2. The Law of Indiana does not restrict the right to Secede.
(1) While remaining silent on the issue of secession, India's constitutional and
statutory position does not prohibit the possibility of claims for right to self-
determination and secession of territories from India.
(2) The Supreme Court also ruled in favour of the possibility of cession of territory by
India in Re Beru Beri case73,court held that

72
Para 19, Moot Proposition
73
In Re: The Berubari Union And ... v. Unknown, AIR 1960 SC 845

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“If the power to acquire foreign territory which is an essential attribute of

sovereignty is not expressly conferred by the Constitution there is no
reason why the power to cede a part of the national territory, which is also
an essential attribute of sovereignty, should have been provided for by the
Constitution. Both of these essential attributes of sovereignty are outside
the Constitution and can be exercised by India as a sovereign State” 74
(3) The Court expressed its noteworthy opinion that acquisition and cession of
territories is beyond the Constitution and these aspects are in the realm of the
sovereignty of a state. As ceding a part of the territory is outside the constitutional
framework, it is not prohibited to demand the exercise of this sovereign right by
the Indian state by a group of people under the right to self-determination.
(4) Further, the Government of India has enacted 106th Amendment Act, 2022 which
has given the right to self-determination to the states, so Kaloshia can claim its
demand even under the constitutional framework.
(5) In the Re Beru Beri75 case, the procedure for the enactment of legislation was laid
down and court held that an agreement which involves a cession of a part of the
territory of India in favour of a foreign State can be implemented by Parliament by
passing a law amending Art. 3 of the Constitution so as to cover cases of cession
of the territory of India in favour of a foreign State. If such a law is passed then
Parliament may be competent to make a law under the amended Art. 3 to
implement the agreement in question.
(6) A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary if
Parliament chooses first to pass a law amending Art. 3 as indicated above; in that
case Parliament may have to pass a law on those lines under Art, 368 and then
follow it up with a law relatable to the amended Art. 3 to implement the
agreement.
(7) In the present case the procedure was duly followed and Art. 3 A is added
following the spirit of the above procedure and further safeguard is also provided
in the clause (b) and (c) of the amendment. Therefore, it can be firmly said that the
state of Kaloshia can secede from the Indiana by duly following the procedures of
the amendment.

74
Ibid
75
Ibid

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(8) In case of Jolly George Verghese v. Bank of Cochin, 76Justice Krishna lyer said
that "until the municipal Law is changed to accommodate the treaty, what binds
the courts is the former not the latter". Since Indiana has changed its municipal
law by bringing the 106th amendment, Kaloshia can secede.

Hence, the counsel humbly submits that the state of Kaloshia can secede from the Union
of Indiana.

PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble Supreme Court of Indiana to
graciously adjudge and be pleased to:

1. DECLARE that wearing of a hijab is not a fundamental right under art. 19 (1) (a) and
art. 25 of the Constitution of Indiana

2. DECLARE that the 106th Constitutional Amendment Act, 2022 is constitutional.

76
Jolly George Verghese & Anr v. The Bank Of Cochin, 1980 AIR 470

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3. DECLARE that the imposition of the president's rule in the state of Kaloshia was
constitutionally valid.

4. DECLARE that the State of Kaloshia can be given the right to secede from the Union
of Indiana.

and/or pass any other order, direction, or relief that this hon'ble court may deem fit in the
interests of justice, equity and good conscience.

All of which is respectfully submitted

FOR THIS ACT OF KINDNESS, THE RESPONDENTS SHALL DUTY BOUND

FOREVER PRAY

On Behalf of the Respondents

Counsel for Respondent
- SD-

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