PETITIONER TC-O

TC-O

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
AKHANDANAD TRIPATHI V. UNION OF INDIANA

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 PETITIONER

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TABLE OF CONTENTS

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

INDEX OF AUTHORITIES ........................................................................................................ 7

STATEMENT OF JURISDICTION ......................................................................................... 11

STATEMENT OF FACTS ......................................................................................................... 12

STATEMENT OF ISSUES ........................................................................................................ 15

SUMMARY OF ARGUMENTS................................................................................................ 16

ARGUMENTS ADVANCED..................................................................................................... 18

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

Art. 19 (1) (A) AND Art. 25 OF THE CONSTITUTION OF INDIANA? ......................... 18
1. Whether wearing hijab by Drakian women forms a part of essential religious
practice in the Drakism faith for the application of Art. 25? .......................................... 18
2. Whether banning hijab violates the fundamental right to freedom of conscience and
the right to practice their religious faith constitutionally guaranteed under Art. 25? . 22
3. Whether banning hijab violates privacy jurisprudence vide. art. 19 (1)a & 21? ... 26
4. Whether the action of the State and the schools suffers from the violation of
‘doctrine of proportionality under Art. 14 of the constitution of India?........................ 28

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

CONSTITUTIONALLY VALID? ......................................................................................... 31
1. It is humbly argued before this hon’ble court that the 106th Constitutional
Amendment Act is violative of Art.1 of the Constitution of Indiana. ............................. 31
2. Indiana cannot bring the 106th Amendment citing ICCPR when internationally the
right to self-determination has not been implemented on ground. ................................. 32
3. The Clause (c) of the 106th Amendment Act is arbitrary and hence violative of Art.
14 of the Constitution of Indiana........................................................................................ 36

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

KALOSHIA WAS CONSTITUTIONALLY VALID? ........................................................ 39

1.The imposition of the President’s rule was not done in accordance with the provisions
of Art. 356 of the Constitution. ........................................................................................... 39
2. The breakdown of the coalition government and the peaceful protest does not
amount to the failure of the constitutional machinery of the state? ............................... 42
2. Proper Mechanism was not followed which is required before invoking Art. 356. 47

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

SECEDE FROM THE UNION OF INDIANA? ................................................................... 49
1. Indiana is a party to various International Covenants providing and respecting the
right to self-determination. ................................................................................................. 49
1. 2. The Law of Indiana does not restrict the right to Secede. ................................... 50

PRAYER ...................................................................................................................................... 53

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LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Art. Art.

Anr. Another

All Allahabad

A.P Andhra Pradesh

BOMLR Bombay Law Reporter

Comm. Committee

CBSE Central Board of Secondary Education

Del Delhi

Edn. Edition

ERP Essential Religious Practice

Hon’ble Honourable

HC High Court

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic Social and Cultural Rights

IPC Indian Penal Code

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

POTA The Prevention of Terrorism Act

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

UOI Union Of India

UDHR Universal Declaration of Human Rights

UNO United Nations Organisation

USSR Union of Soviet Socialist Republics

US United Nations

USC United States of Czar

UAPA Unlawful Activities (Prevention) Act

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v. Versus

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INDEX OF AUTHORITIES

Cases

Sr. Title Citation Appear

No. on
Page(s)
1 A. Velusamy v. Additional Director General of AIR 1982 SC 82 31
Police and Inspector General of Prisons and
Others
2 A.S. Narayana Deekshitulu v. State of A.P. (1996) 9 SCC 548 18
3 Ahmedabad St. Xavier’s College Society v. (1974) 1 SCC 717 28
State of Gujarat,
4 Aishat Shifa v. State of Karnataka 2022 SCC OnLine SC 25
1394.
5 Akhil Bhartiya Shoshit Karamchari Sangh MANU/SC/0058/1980 37
(Railway) v. Union of India
6 Amnah Bint Basheer v. Central Board of 2016 SCC OnLine Ker 20
Secondary Education (CBSE) 41117
7 Aruna Roy v. Union of India, AIR 2002 SC 3176 29
8 Bijoe Emmanuel v. State of Kerala 1986 3 SCC 615 21
9 Binoy Viswam v. Union of India (2017) 7 SCC 59. 37
10 Brown v. Louisiana 383 U.S. 131 (1966, 29
Supreme Court of the
United States)
11 Chintaman Rao v State of MP AIR 1951 SC 118. 27
12 Commissioner Hindu Religious Endowments v. 1954 SCR 1005 22, 17
Shirur Mutt,
13 Durgah Committee v. Syed Hussain Ali (1962) 1 SCR 383. 22

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14 Fugicha v. Methodist Church in Kenya 2016 SCC OnLine Ken 19

3023
15 Gulam Abbas v. State of Uttar Pradesh (1982) 1 SCR 1077 28
16 H.S. Jain vs Union of India (1996) SCC OnLine All 47
10591
17 Harish Chandra Singh Rawat v. Union of India (2016) 16 SCC 744 43
and Another.
18 Hasanali v, Mansoorali, (1948) 50 BOMLR 389 17
19 In Re The Special Courts Bill, 1978 (1979) 1 SCC 380. 36
20 In Re: The Berubari Union And ... v. Unknown, AIR 1960 SC 845 49
21 Jeeja Ghosh v. Union of India (2016) 7 SCC 761 28
22 Jolly George Verghese & Anr vs The Bank Of 1980 AIR 470 50
Cochin,
23 Justice K.S. Puttaswamy (Retd.) and Anr. v. (2017) 10 SCC 1. 25
Union of India
24 Lt. Col. Nitisha v. Union of India 2021 SCC OnLine SC 261 29
25 M.R.F. Ltd. v.Inspector Kerala Govt (1998) 8 SCC227 29
26 Madras Bar Association v. Union of India (2014) 10 SCC 1 31
27 Mahabir Prasad v. Prafulla Chandra AIR 1969 Cal 198 45
28 Modern Dental College v. State of Madhya 2016 7 SCC 353. 27
Pradesh,
29 Mohd. Faruk v. State of Madhya Pradesh (1969) 1 SCC 853 27
30 National Legal Services Authority v. Union of (2014) 5 SCC 438 25
India
31 NCT of Delhi v Union of India 2018 8 SCC 501 41
32 Nitisha v. Union of India 2021 SCC OnLine SC 27
261.
33 Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545 28
34 Raja Ram Pal v Speaker, Lok Sabha (2007) 3 SCC 184 30
35 Rameshwar Prasad (IV) v. Union of India (2005) 7 SCC 157 43

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36 Ratilal Panachand Gandhi v. State of Bombay & 1954 SCR 1055 17

Others
37 Ravinder Kumar Dhariwal v. Union of India 2021 SCC OnLine SC 27
1293
38 Resham v. State of Karnataka 2022 SCC OnLine Kar 20,19
315
39 Rural Litigation and Entitlement Kendra v. State AIR 1958 SC 538 36
of Uttarakhand and Ors,
40 S.R Bommai v. Union of India (1994) 3 SCC 1. 30,41
41 Shiv Sena v. Union of India (2019) 10 SCC 809 41
42 Shrimanth Balasaheb Patil v. Karnataka 2019 SCC OnLine SC 41
Legislative Assembly 1454
43 State of Bombay and Another v. F.N Balsara AIR 1951 SC 41 37
44 State Of Rajasthan & Ors. vs Union Of India 1977 AIR 1361 43
45 Sunderlal Patwa v. Union of India 1993 SCC OnLine MP 53 40
46 Terminiello v. Chicago 337 U.S. 1 (1949, 29
Supreme Court of the
United States)
47 Union of India v. Harish Chandra Singh Rawat (2016) 16 SCC 744 41
48 Union of India v. K.M. Shankarappa (2001) 1 SCC 582. 29
49 Vikash Kumar v. UPSC (2021) 5 SCC 370 28

Other Authorities
Quran, Chap. 24: The Light, verse 31 ........................................................................................... 19
Srinivas burra, Where Does India Stand on the Right to Self-determination ?,52,(2), Economic
and Political Weekly, 21,24 (2017), available at https://www.jstor.org/stable/44166882 last
seen on 03/02/22. ...................................................................................................................... 32
Su˜ra xxxiii (Ahzāb), Quran ......................................................................................................... 20
Foreign Cases
Art. 356(1). The Constitution of India. ......................................................................................... 38
Reference re Secession of Quebec, [1998] 2 S.C.R. 217. ............................................................. 32
Books

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Art. 19(1)(a), the Constitution of India. ........................................................................................ 26

Commentary on the Constitution of India 3459 (DR. D.D. BASU, 6th edn. 2010) ..................... 42
Commentary on the Constitution of India 3459 (DR. D.D. BASU, 6th edn. 2010). .................... 21
Constituent Assembly Debates, Vol. IX, p. 177 ........................................................................... 45
Prof. H.W.R. Wade Administrative Law, 29 (6th Edn. 2010). .................................................... 42
Prof. Narendra Kumar, Constitutional Law of India, 41, (8th, 2014)........................................... 30
R. Y. Jennings, The Acquisition of Territory in International Law (1963), 8,9. .......................... 34
Shorter Oxford English Dictionary (3rd Edn. at p. 1792): ........................................................... 44
Women in islam: An Anthology from the Qur'an and Hadiths, ( N. Awde, 1st ed., 2000)........... 20
Articles
Psychosocial Aspects of Niqab Wearing: Religion, Nationalism ................................................. 19
R. Goldman, What’s That You're Wearing? A Guide to Muslim Veils, THE NEW YORK TIMES
(2016), available at https://www.nytimes.com/2016/05/04/world/what-in-the-world/burqa-
hijab-abaya-chador.html. last seen on 31/01/2023 ................................................................... 18
S. Slininger, Veiled Women: Hijab, Religion, And Cultural Practice, EASTERN ILLINOIS
UNIVERSITY (2014), available at, https://www.eiu.edu/historia/Slininger2014.pdf, last seen
on 31/01/2023 ........................................................................................................................... 19
The Translation of the Meanings of Sahih Al-Bukhari’, (Dr. M. M. Khan, 1997) ....................... 20
Other Authorities
Serif v. Greece, No. 38178/97, ECHR (Second Section), 14 December 1999. ............................ 29
UN General Assembly, Universal Declaration of Human Rights, U.N. Document 217 A
(III)(1948), available at: https://www.refworld.org/docid/3ae6b3712c.html last seen on
4/02/23 ...................................................................................................................................... 29

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STATEMENT OF JURISDICTION

The counsel for the Petitioners most respectfully showeth:

In the case of Aliza Firdos and Ors. 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 case 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 Supreme Court 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 'divide 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 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. High Court of

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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 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 Kaloshian 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 before 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 well established that Art. 25(1) of the Constitution of Indiana protects not only
religious beliefs but also religious practices which are integral or essential to religion. The
counsel most humbly submits that the practice of wearing a Hijab is an ERP. Further
Uniform Dress Code and a ban on Hijab is no way justified on the grounds of public order,
health and morality which are engrafted in art. 25(2) as exceptions to art. 25(1).
The uniform dress code violates the substantive equality clause mentioned under Art. 14.
The prohibition on wearing a hijab and other religious clothing/symbols within the school
is violative of the fundamental rights to privacy, dignity, and right to education under Art.
21, and freedom of expression under Art. 19(1)(a).

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

CONSTITUTIONALLY VALID?
It most humbly submitted before this court that 106th Constitutional Amendment Act is violative
of Art. 1 of the Constitution of Indiana. The idea of unity of nation is deeply imbibed in Indiana's
Constitution and any legislation damaging such nature of the constitution is unconstitutional.
Hence, the counsel humbly contends that the 106th Constitutional Amendment Act, 2022 is
unconstitutional as it goes against the basic structure doctrine.

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
unconstitutional on two grounds. Firstly, there was a peaceful protest going on against the
government order banning hijab and in no way, it disturbed the public order. Secondly, other

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political parties were not given a chance to form the government and it was unjustly assumed that
no party had the majority even before considering any option and thus invocation of president's
rule was not justified in the state of Kaloshia.

IV. WHETHER THE STATE OF KALOSHIA CAN BE GIVEN THE RIGHT TO SECEDE
FROM THE UNION OF INDIANA?

The counsel humbly submits that Kaloshia cannot secede from the Union of Indiana. Neither the
Indian Constitution as before 106th amendment nor any other statute expressly defines the right to
self-determination. Under the federal scheme of Indiana, no State can secede from the Union by
its unilateral act. The Indiana Union is an indissoluble union. Thus, secession as demanded by the
state of Kaloshia from the Union of Indiana cannot be met with.

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ARGUMENTS ADVANCED

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

Art. 19 (1) (A) AND Art. 25 OF THE CONSTITUTION OF INDIANA?
1. Whether wearing hijab by Drakian women forms a part of essential religious
practice in the Drakism faith for the application of Art. 25?
(1) Art. 25 of the Constitution of Indiana guarantees to every person the freedom
of conscience and the free profession, practice, and propagation of religion,
subject to public order, morality and health. The protection of Art.s 25 and 26
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, observances,
ceremonies and modes of worship which are integral parts of religion. 1
(2) In Commissioner, Hindu Religious Endowments, Madras v. Sri Laxmindra
Thirtha Swamiar of Sri Shirur Mutt2 the Court held that the doctrine of
“essentiality” provides that the term “religion” will cover all rituals and
practices “integral” to a religion. 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.
(3) In Ratilal Panachand Gandhi v. State of Bombay & Others 3, the Hon'ble
Supreme Court observed that the essential part of a religion is ascertained from
the religious doctrine itself. Ordinarily, a religious practice in order to be called
an ‘essential religious practice’ should have the following indicia 4 :
(i) 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.
(ii) Foundation of the practice must precede the religion itself or should
be co-founded at the origin of the religion.

1
Hasanali v. Mansoorali, (1948) 50 BOMLR 389
2
Commissioner, Hindu Religious Endowments, Madras v. Sri Laxmindra Thirtha Swamiar of Sri Shirur Mutt,1954
SCR 1005
3
Ratilal Panachand Gandhi v. State of Bombay & Others, 1954 SCR 1055
4
Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.

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(iii)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,
(iv) Such practice must be binding in nature of the religion itself and it
must be compelling.
Practice should be fundamental to religion and it should be from the time
immemorial.
(4) Essential or integral part of religion is ascertained from the doctrine of that
religion based its tenets, historical backgrounds and change in evolved process
and only that protected.5
(5) In Chapter 24: 'The Light" verse 31 of The Quran, holy book of a relatively
similar religion to Drakism where hijab is a common practice, commands to
the women to be modest and wear veils to cover their bosoms and not to reveal
their adornment except to their male relatives, slaves or innocent children.
(6) The term "hijab" is defined as "something akin to a curtain or 'separation' that
allows for privacy."6 The term referred to a common headscarf that covers the
hair and neck but leaves the face and body uncovered.
(7) In the event of an infringement of the dress code, punishment is referred as
follows: "Fudhalah bin Ubaid reported what the Messenger said: Three people
about whose evil fate you should not feel sorry, a woman whose husband goes
away after having provided her with provisions but she displays her beauty, in
tabar-ruj during his absence. So do not be concerned about them.” 7
(8) Thus, the analysis of the Quranic injunctions and the Hadiths would show that
it is a duty to wear the long-sleeved dress except for the face part, and exposing
the body otherwise is forbidden. When duty is violated by any action opposite
to farz that action becomes forbidden (haram).8

5
A.S. Narayana Deekshitulu v. State of A.P., (1996) 9 SCC 548.
6
R. Goldman, What’s That You're Wearing? A Guide to Muslim Veils, THE NEW YORK TIMES (2016), available
at https://www.nytimes.com/2016/05/04/world/what-in-the-world/burqa-hijab-abaya-chador.html. last seen on
31/01/2023.
7
Supra 14.
8
Ibid

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(9) Therefore, covering the head by women is a fundamental part of the religion.
The right of women to have the choice of dress based on religious injunctions
is a fundamental right protected under Art. 25(1) when such prescription of
dress is an essential part of the religion. 9
(10) It is also submitted that practice of wearing hijab is practiced from time
immemorial. This practice has cultural roots dating back before the time of the
Prophet.10 Veiling was a sign of a woman's social status within those societies.
In Mesopotamia, the veil was a sign of a woman’s high status and respectability.
Women wore the veil to distinguish themselves from slaves and unchaste
women.11 This practice of wearing hijab became religious after a series of
divine revelations in the Quran12 and this permeation of religion into cultural
practice has been accepted by the Court. 13
Therefore, the counsel firmly contends that the practice of wearing hijab is from time
immemorial.
Foundation of the practice of wearing hijab precedes the religion itself:
(11) The petitioner has sufficiently proven the existence of the practice of wearing
hijab has been present before the religion itself and was formally included in
the religious scriptures at the time of its origin. Therefore, it is humbly
submitted that practice passes the second condition of ERP.
Practice of wearing hijab forms cornerstone of religion.
(12) What constitutes an essential part of a religion or religious practice is required
to be decided by Courts with reference to the doctrine of that particular religion,
and would include practices which are regarded by the community as a part of
its religion.
The Kenyan court held that practice of hijab is ingrained in the religion. 14 The
wearing of hijab is a fundamental aspect of their religion. So, the counsel

9
Ibid
10
Psychosocial Aspects of Niqab Wearing: Religion, Nationalism
and Identity in Bosnia and Herzegovina, 24-25, N. Bosankiu
11
S. Slininger, Veiled Women: Hijab, Religion, And Cultural Practice, EASTERN ILLINOIS UNIVERSITY
(2014), available at, https://www.eiu.edu/historia/Slininger2014.pdf, last seen on 31/01/2023
12
Quran, Chap. 24: The Light, verse 31.
13
Resham v. State of Karnataka, 2022 SCC OnLine Kar 341.
14
Fugicha v. Methodist Church in Kenya, 2016 SCC OnLine Ken 3023.

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humbly submits that the practice of wearing hijab forms the cornerstone of the
Islam religion.
Such practice must be the binding nature of the religion itself and it must be
compelling.
(13) In dealing with the question of freedom of religious practices, the Court must
dwell on to find such practices are essential to maintain the identity of a person
to profess his faith in the religion he practices and if not allowed, whether it
would result in the wrath of the injunctions of the religious doctrine he
professes.15
(14) One of the salient features of the religious tenets is the moral obligations that
one has to carry in formulating his conduct in obedience to the command of
superior power, similar to the legal obligation under temporal law. This moral
obligation cannot be allowed to be interpolated by outside ethos. 16
(15) Further, it is mentioned 17 relating to women privacy that their bodies must be
covered in outer garments.18
(16) According to the Lisan al Arab, jilbab refers to the headscarf. This verse
specifically states that women wear the headscarf in order to be known and
recognized as believing women and to be protected. This verse is similarly
reinforced by- "When the Quranic verse (33:59) was revealed, the women of
al-ansor tribe [in Medina] went out with a black cloth on their heads.”19
(17) Another commentary asserts that Umar ibn al-Khattiib said: God and I were in
agreement over the Verse of the Veil - I said to the prophet: 'If only you would
order your wives to veil themselves, for they are spoken to by wicked men as
well as those with honourable intentions!' And so, the Verse of the Veil was
revealed."20

15
Amnah Bint Basheer v. Central Board of Secondary Education (CBSE), 2016 SCC OnLine Ker 41117.
16
Ibid.
17
Su˜ra xxxiii (Ahzāb), Quran
18
Resham v. State of Karnataka, 2022 SCC OnLine Kar 315.
19
Supra10.
20
Women in islam: An Anthology from the Qur'an and Hadiths, ( N. Awde, 1st ed., 2000).

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(18) Dr. Muhammad Muhsin Khan in his commentary21 made the following
explanation of Verses 4758 and 4759 which reads that Hijab is an essential
practise to be followed by women.
(19) Therefore, the counsel for the petitioner firmly contends that wearing of hijab
is a fundamental aspect of the religion of the petitioner and fulfils the test of
essential religious practice and be set aside.
2. Whether banning hijab violates the fundamental right to freedom of conscience
and the right to practice their religious faith constitutionally guaranteed under
Art. 25?
(1) Art. 2522 protects both religious beliefs and practices, and the practice of
wearing hijab is by its nature a religious practice.
i. Art. 25(1) guarantees to every person the freedom of conscience and the
freedom to profess, practice and propagate religion. Freedom of conscience
refers to the mental process of belief or non-belief, while profession,
practice and propagation refer to external action in pursuance of the mental
idea or concept of the person. 23
ii. In Bijoe Emmanuel v. State of Kerala, 24 when students of the Jehovah
community were expelled from school for not singing the national anthem,
the Supreme Court held their expulsion to be in violation of their
Fundamental Rights. It was held that “Art. 25 is an Art. of faith in the
Constitution, incorporated in recognition of the principle that the real test of
a true democracy is the ability of even an insignificant minority to find its
identity under the country's Constitution. This has to be borne in mind in
interpreting Art. 25.”25
iii. The hijab is worn by the concerned petitioners as an Art. of their faith and
believed to be a part of their religion and social practice. The counsel,

21
The Translation of the Meanings of Sahih Al-Bukhari’, (Dr. M. M. Khan, 1997)
22
Art. 25, The Constitution of India
23
Commentary on the Constitution of India 3459 (DR. D.D. BASU, 6th edn. 2010).
24
Bijoe Emmanuel v. State of Kerala,1986 3 SCC 615.
25
Ibid.

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therefore considers this case to be squarely covered by the case of Bijoe

Emmanuel (supra) and the ratio laid down therein.
iv. The guarantee under our Constitution not only protects the freedom of
religious opinion but it also protects acts done in pursuance of a religion and
this is made clear by the use of the expression “practice of religion” in Art.
25.26
v. It is clear, therefore, that freedom of religion extends to religious practices
such as the clothes one wears if they are regarded as ‘integral’ or essential
to the religion. Hijab is an integral part of Drakism and thus takes the form
of a religious practice and is therefore protected under Art. 25.
(2) Wearing hijab is an ERP covered under art. 25 and does not come under the
exceptions given in clause 2.
i. Protection under art. 25(1), however, in every case is subject to public order,
health, morality and other provisions of Part III. Other exceptions are
engrafted upon this right by clause (2) of Art. 25.
ii. The Court made a distinction between practices which were essential to a
religion, and those which were ‘merely superstitious.27 The Court clarified
that practices which are essential to a religion are protected by Art. 25 and
what constitutes an essential part of a religion is ‘primarily to be ascertained
with reference to the doctrines of that religion itself.’ 28
iii. The court evolved the test of essential religious practices to distinguish
between essential religious practice and secular practice. It allows the Court
to initiate a judicial enquiry into whether or not an impugned religious
practice is an “essential practice”, independent of what the religion’s
adherents themselves say about it. 29
iv. In Amnah Bint Basheer v Central Board of Secondary Education 30 Kerala
High Court after an analysis of the Quran and various Hadiths, concluded

26
Commissioner Hindu Religious Endowments v. Shirur Mutt, 1954 SCR 1005
27
Durgah Committee v. Syed Hussain Ali, (1962) 1 SCR 383.
28
Supra 26.
29
Supra 32.
30
Supra 15.

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that there are good foundations to the claim that wearing the hijab is an
obligation under Islam, despite the existence of other interpretations. Hence,
wearing it is protected under Art. 25(1). Since the wearing of the hijab did
not adversely affect public order, morality or health, the court directed the
CBSE to permit candidates to wear the hijab during the examinations.
v. Therefore, the counsel humbly submits that hijab is essential to the Islamic
faith and in the absence of any conditions referable under Art. 25(1), the
essential practice cannot be restrained as attempted by the Government
notification issued under Sec 133(2) of Kaloshia Education Act.
(3) The practice of wearing hijab in the present case is based on a sincerely held
religious belief and is protected under freedom of conscience under art. 25.
i. In case of Bijoe Emmanuel v State of Kerala 31, court had evolved genuine
belief test and held that the question is not whether a particular religious
belief or practice appeals to our reason or sentiment but whether the belief
is genuinely and conscientiously held as part of the profession or practice
of religion. If the belief is genuinely and conscientiously it attracts the
protection of Art. 25 but subject to the inhibitions contained therein.
ii. In accordance with this ‘genuine belief’ standard, what matters is not the
content of the belief but what is genuinely held by the believer to be a part
of her faith. A court’s role is limited to ascertaining the genuineness of this
belief, and does not include a determination of the validity of that belief.
Once this threshold is crossed, then courts can inquire into whether religious
practice could be restrained under Art. 25 or not.
iii. In the present case, the only relevant question in determining the
applicability of Art. 25 to the hijab is whether those who wear it genuinely
believe it as a part of their religion. The Drakist women clearly choose to
wear the hijab genuinely believe it as their religious duty, even in a
relatively similar religion, there is no reasonable dispute that several
interpretations of Islamic doctrine do prescribe the wearing of the hijab.32

31
Supra 26.
32
Supra 36.

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Second, the continuance of a religious practice in the face of oppression and

humiliation has been recognised by the Supreme Court as a factor in
determining the genuineness of the belief. 33 Third, as mentioned above, the
personal views of Hon’ble judges on the hijab do not matter, if the belief is
sincere, and it harms no one else, there can be no justifiable reasons for
banning hijab in a classroom.34
iv. The High Court of England and Wales in the United Kingdom35 deciding
on the matter - whether a particular school was entitled as a matter of public
law to refuse to allow a Sikh girl to wear a ‘Kara’ at School which she
considered necessary as part of her religious faith, held that when:
(a) that person genuinely believed for reasonable grounds that wearing this
item was a matter of exceptional importance to his or her religious belief
(subjective element), and
(b) the wearing of this item can be shown objectively to be of exceptional
importance to his or her religion, even if the wearing of the Art. is not an
actual requirement of that person's religion or race (objective element);
only then it will be considered that there is a violation of rights if the
claimant is not allowed to wear the Kara.
v. Considering the foreign judgments evolved around the world, the counsel
for the petitioner firmly contends that both subjective and objective
elements of faith need to be taken into account to in the present case. This
is an extension of the genuine belief test discussed in Bijoy Emmanuel’s 36
case that makes the genuine belief test wholesome and rules out any
possibility of its misuse. Moreover, it does not disregard the choice of the
individual unlike the Essential Religious Practice test which literally
depends upon first obscuring and erasing the agency and choice of the
petitioners before the Court and leaves the Court with the choice of

33
Supra 37.
34
Supra 32.
35
7 R (Watkins-Singh) v Governing Body of Aberdare Girls' High School, [2008] EWHC 1865 (Admin).
36
Supra 33.

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accepting the practice as ‘essential’ on the grounds that it is made obligatory

by the religious text.
Hence, the right to wear the hijab falls within the ambit of Art. 25’s right to
practice religion.
3. Whether banning hijab violates privacy jurisprudence vide. art. 19 (1)a & 21?
(1) Banning hijab and other religious symbols within school is violative of the
fundamental rights to privacy.
i. The fundamental right to privacy is an intrinsic part of the right to life
and personal liberty under Art. 21 of the Constitution. 37 Individual
autonomy lies at the core of the concept of privacy. 38
ii. In Puttaswamy judgment39 court has held that the freedoms under Art.
19 can be fulfilled where the individual is entitled to decide upon his or
her preferences. Read in conjunction with Art. 21, liberty enables the
individual to have a choice of preferences on various facets of life
including the way one will dress.
iii. One's personal appearance or choice of dressing has been recognized as
a protected zone within the meaning of the phrase ‘freedom of
expression’ in National Legal Services Authority v. Union of India 40
iv. The Court has clearly held that the physical aspect of privacy might be
especially crucial when it intersects with gender and extends the
protection of right to privacy to physically intimate decisions 41
Violates the dignity of female students.
v. It is humbly submitted before this hon'ble court that asking a student to
take off her hijab at her school gate is an invasion of her privacy and
dignity.
vi. A girl child has the right to wear a hijab and that right does not stop at
her school gate. She retains her fundamental rights.42

37
Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India, (2017) 10 SCC 1.
38
Ibid.
39
Ibid.
40
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
41
Supra 39.
42
Aishat Shifa v. State of Karnataka, 2022 SCC OnLine SC 1394.

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vii. The issue in dispute is important from the perspective of diversity,

especially our rich plural culture. Educational institutions are the perfect
place for our children to foster within themselves sensitivity,
understanding and empathy towards different religions, languages and
cultures. Their impressionable age must be guided to imbibe the
constitutional values of tolerance and accommodation. .43
viii. Clothing as a means of expressing one’s identity was recognized and
protected under Art. 19(1)(a)44. The protection under Art. 19(1)(a) also
covers forms of expressing one’s identity. The hijab is a means of
expressing religious identity that individuals can choose. Once freedom
is recognized under Art. 19(1) (a), any restriction on it would have to be
in compliance with the provisions of Art. 19(2). There are very specific
grounds on which reasonable restrictions can be imposed under Art.
19(2) and the state action do not satisfy any of the grounds in that
constitutional provision.
(2) Banning Hijab Violates Petitioner’s Right to Education under Article 21. 45
i. In Mohini Jain46, right to education was recognized as part of the right to a
dignified life under Art. 21. The Court recognized the importance of the
right to education for the realisation of all other fundamental rights. And
has also emphasised on equal access to education for all, and the removal
of arbitrary barriers to education.
ii. The petitioners in the case at hand demand a right to access education
without giving up wearing the hijab. The case involves depriving students
their access to education at the school level, by requiring students to choose
between their education and wearing of the hijab. Uniform dress codes
cannot come at the cost of education. Those girls who refused to remove the
hijab were denied entry to classes. Thus, a barrier was created for Muslim
students to access their education.

43
Ibid.
44
19(1)(a), the Constitution of India.
45
Art. 21, the Constitution of India.
46
Mohini Jain v. State of Karnataka, AIR 1992 SC 1858.

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(3) School circular violates the freedom of expression under art. 19(1)(a)
i. Clothing as a means of expressing one’s identity was recognized and protected
under Art. 19(1)(a).47 It is now clear that the protection under Art. 19(1)(a) is
not restricted to verbal speech but also covers forms of expressing one’s
identity.
ii. There are very specific grounds on which reasonable restrictions can be
imposed under Art. 19(2) and the basis for the actions by the state or the schools
clearly do not satisfy any of the grounds in that constitutional provision.
4. Whether the action of the State and the schools suffers from the violation of
‘doctrine of proportionality under Art. 14 of the constitution of India?
(1) Art. 14 comprises of two kinds of equality: ‘formal’ and ‘substantive equality’.48
The formal equality requires likes to be treated alike. Whereas, substantive equality
demands that unequal should not be treated equally. Substantive equality is aimed
at producing equality of outcomes through different modes of affirmative actions.49

(2) The counsel humbly submits that legislation which arbitrarily or excessively
invades the right cannot be said to contain the quality of reasonableness. The
limitation imposed on a person in enjoyment of the right should not be arbitrary or
of an excessive nature, beyond what is required in the interests of the public. 50
(3) The action of the State suffers from the violation of ‘doctrine of proportionality’
inasmuch as in taking the extreme step of banning the hijab. The possible
alternatives that pass the ‘least restrictive test’ have not been explored as stated in
Modern Dental College v. State of Madhya Pradesh51 and Mohd. Faruk v. State of
Madhya Pradesh.52 Under this, the State is duty-bound [A] to recognize the
consequence of its act. [B] to accommodate differences and aim to achieve
structural change. [C] to avoid indirect discrimination.
Consequence of the act

47
NALSA v. Union of India, (2014) 5 SCC 438
48
Nitisha v. Union of India, 2021 SCC OnLine SC 261.
49
Ravinder Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293.
50
Chintaman Rao v State of MP, AIR 1951 SC 118.
51
Modern Dental College v. State of Madhya Pradesh, 2016 7 SCC 353.
52
Mohd. Faruk v. State of Madhya Pradesh,(1969) 1 SCC 853.

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i. The principle of substantive equality makes it a duty of the state to recognize the
consequence of its act. The state action barters the petitioners right to education
with their fundamental right to privacy, dignity and culture.
ii. According to Mathew J., if the State is extending you a privilege, state cannot exact
a barter from you on a fundamental right guaranteed by the Constitution. 53 Such a
barter if enforced will defeat the purpose of the Constitution. 54
iii. The Bijoe Emmanual case55 rejected the contention that a student citizen is
expected to surrender her fundamental rights under Art. 19, 21 and 25 as a
precondition to access education. The practice of tolerance as preached by our
Constitution shouldn’t be diluted. 56
iv. Asking the girls to take off their hijab before they enter the school gates, is
ultimately a denial of secular education. These are clearly violative of Art. 19(1)(a),
Art. 21 and Art. 25(1) of the Constitution of India. 57
Reasonable Accommodation
v. ‘Reasonable accommodation’ is a principle that promotes equality, enables the
grant of positive rights, and prevents discrimination based on disability, health
condition, or personal belief. The Supreme Court recognized reasonable
accommodation as a substantive equality facilitator58 and held that failure to
provide reasonable accommodation amounts to discrimination. 59
vi. If wearing of hijab disrupts the public order, the State should take action against
those responsible for such disruption and not ban the wearing of hijab. It’s a positive
duty on the part of the state, i.e., to create an atmosphere where a person can
exercise his/her right in accordance with Art. 25 of the Indian Constitution 60.

53
Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717.
54
Olga Tellis v Bombay Municipal Corporation, (1985) 3 SCC 545.
55
Supra 33.
56
Ibid.
57
Supra 45.
58
Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
59
Vikash Kumar v. UPSC, (2021) 5 SCC 370.
60
Gulam Abbas v. State of Uttar Pradesh, (1982) 1 SCR 1077.

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vii. In addition, such a right cannot be curtailed based on the actions of the disrupters,
i.e., the ‘hecklers don’t get the veto’ principle61 affirmed by the Apex Court in
Union of India v. K.M. Shankarappa.62 This duty is made more onerous because of
positive secularism contemplated by the Constitution.63
Avoid Indirect Discrimination
viii. The action of the State and the school authorities is in derogation of International
Conventions64 that insist on curtailing discrimination. The circular issued by the
government school, has a disparate impact on female students whose self-
expression and religious practices have been jeopardised.
ix. Similar to the facts of the case at hand, in Fughicha v. Methodist Church 65 in Kenya,
the Court of Appeal held that the restriction on female students wearing hijabs on
their uniforms was an act of indirect discrimination.
x. Principle of reasonable accommodation needs to be applied for a holistic view of
the substantive equality under Art. 14 and 15. 66 There exists no rational nexus
between such a ban and protecting public order. The role of the State is to “not to
remove the cause of tension by eliminating pluralism, but to ensure that the
competing groups tolerate each other.” 67
xi. Further, the ban is not only limited to the Hijab, but also other articles of clothing
of religious significance. The restriction imposed by a measure should not be
“arbitrary or of an excessive nature so as to go beyond the requirement of the
interest of the general public.”68 There exist better alternatives to an outright ban.
For these reasons the circular issued by the government fails the test of
proportionality and hence causes indirect discrimination.

61
Terminiello v. Chicago,337 U.S. 1 (1949, Supreme Court of the United States) ; Brown v. Louisiana, 383 U.S.
131 (1966, Supreme Court of the United States); Tinker v. Des Moines, 393 U.S. 503 (1969,Supreme Court of the
United States)
62
Union of India v. K.M. Shankarappa, (2001) 1 SCC 582.
63
Aruna Roy v. Union of India, AIR 2002 SC 3176.
64
UN General Assembly, Universal Declaration of Human Rights, U.N. Document 217 A (III)(1948), available at:
https://www.refworld.org/docid/3ae6b3712c.html last seen on 4/02/23 , Supra 1.
65
Supra 14.
66
Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261.
67
Serif v. Greece, No. 38178/97, ECHR (Second Section), 14 December 1999.
68
M.R.F. Ltd. v.Inspector Kerala Govt., (1998) 8 SCC227.

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

CONSTITUTIONALLY VALID?
1. It is humbly argued before this hon’ble court that the 106th Constitutional
Amendment Act is violative of Art.1 of the Constitution of Indiana.
(1) Art.1 states that Indiana shall be the Union of States thereby highlighting the
indestructible character of the states constituting this Union. In Raja Ram Pal v
Speaker, Lok Sabha,69 The Supreme Court held that India is an indestructible union of
destructible states.
(2) In describing India as a Union of States, the Drafting Committee of the Constituent
Assembly followed the language of the Preamble to the British North America Act,
186770. It was used deliberately to explain that the Indian federation would be of the
Canadian type. Explaining the significance of the use of the expression ‘Union’ instead
of the expression "Federation", Dr BR Ambedkar, the Chairman of the Drafting
Committee, said that the word was adopted to indicate two things, viz.
i. that the Indian federation not the result of an agreement between the units it is
constituted of and,
ii. the component units have no freedom to secede from the Union so created.
(3) Referring to the U.S. Federation, Dr. Ambedkar further distinguished the constitution
from the American federal constitution and explained that the Americans had to wage
a civil war to establish that the States in America had no right of secession and that
their federation was indestructible. The Drafting Committee, thus, thought it better to
make it clear at the outset rather than to have left it to speculation or to dispute in future.
(4) The term "Union" was used as symbolic of the determination of the Assembly to
maintain the unity of the country. In S.R Bommai v. Union of India71, Supreme Court
made the following observation about the Indian concept of federalism as -
“Federalism envisaged in the Constitution of India is a basic feature in which the Union
of India is permanent within the territorial limits set in Art. 1 of the Constitution and is
indestructible.”
(5) In the same case court also adjudged following things as basic structure-
i. Sovereign, democratic and republican nature of the Indian polity.

69
Raja Ram Pal v Speaker, Lok Sabha, (2007) 3 SCC 184.
70
Prof. Narendra Kumar, Constitutional Law of India, 41, (8th, 2014).
71
S.R Bommai v. Union of India, (1994) 3 SCC 1.

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ii. Unity and integrity of the nation.

(6) Madras High Court reaffirmed the above decision in Madras Bar Association v. Union
of India72 and held the following as the basic structure of the Indian Constitution-
i. Republican and Democratic form of government and sovereignty of the
country.
ii. Secular and federal character of the Constitution.
iii. The unity and the integrity of the Nation. 73
(7) Therefore, it is respectfully submitted that the 106th Constitutional Amendment is
violative of basic structure of the constitution and hence cannot stand the test of
constitutionality.
(8) By 42nd Amendment to the Constitution in 1976, the word ‘Integrity of the Nation'
was added to the preamble which further bolden the idea of unity of the nation.
(9) Thus, the idea of unity of nation is deeply imbibed in the Indiana’s Constitution and
any legislation damaging such nature of the constitution is unconstitutional. Hence, the
counsel to the petitioner humbly contends that the 106th Constitutional Amendment
Act, 2022 is unconstitutional as it goes against the basic structure doctrine.
2. Indiana cannot bring the 106th Amendment citing ICCPR when internationally the right to
self-determination has not been implemented on ground.
(1) It is most humbly submitted before the Hon’ble Court that Indiana cannot bring such a
legislation which damages its unity by citing ICCPR as Art. 1 of the covenant is futile
in the context of Indiana’s case.
(2) The authoritative position expressed by India on the right to self-determination is its
declaration, which was made when it became a party to the two human rights covenants
in 1979 relating to Art. 1 of both the covenants.

(3) The declaration states that the Government of the Republic of India declares that the
words 'the right of self-determination' apply only to the peoples under foreign
domination and that these words do not apply to sovereign independent States or to a

72
Madras Bar Association v. Union of India (2014) 10 SCC 1.
73
A. Velusamy v. Additional Director General of Police and Inspector General of Prisons and Others) AIR 1982
SC 82

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section of a people or nation which is the essence of national integrity. 74 It is also the
legal position of the Government for both internal and external purposes and this
position, thus, clarifies that the right to self-determination is confined to the specific
context of foreign domination, like colonialism, and is clearly against its application to
postcolonial and other situations. The consequence of this position is that this right
cannot be extended to any situation in Indiana as it is not a context of foreign or colonial
domination, with Indiana having attained independence from colonialism.
(4) As observed by the Supreme Court of Canada in the case of secession of Quebec 75, a
right to secession only arises under the principle of self-determination of people at
international law where the people as such involved in the secession are governed as
part of a colonial empire, where they are subject to alien subjugation, domination or
exploitation; and denied any meaningful exercise of its right to self-determination
within the state of which it forms a part. None of these conditions hold true for the
Union of Indiana.
(5) A state whose government represents the whole of the people or people’s resident
within its territory, on a basis of equality and without discrimination, and respects the
principles of self‑determination in its internal arrangements, is entitled to maintain its
territorial integrity under international law and to have that territorial integrity
recognized by other states. 76
(6) In the absence of any specific reference to this right in the Constitution or in other
statutes, it becomes imperative to evaluate Indiana’s position by examining its views
expressed at the international fora but here as well Indiana’s stand clearly states that no
state has the right of secession.
(7) The International Covenants on Human rights: i.e., ICESCR and ICCPR both have a
common norm of self-determination. One of the most authoritative positions expressed
by India on the right to self-determination is its declaration, which was made when it
became a party to the two human rights covenants in 1979. India made a declaration to

74
Srinivas burra, Where Does India Stand on the Right to Self-determination?52, (2), Economic
and Political Weekly, 21,24 (2017), available at https://www.jstor.org/stable/44166882 last seen
on 03/02/22.
75
Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
76
Ibid.

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Art. 1 of both the covenants. The declaration states that the Government of the Republic
of India declares that the words 'the right of self-determination’ apply only to the
peoples under foreign domination and that these words do not apply to sovereign
independent States or to a section of a people or nation ... which is the essence of
national integrity, 77
(8) It is also the legal position of the Government of Indiana for both internal and external
purposes as there is no other explanation found either in the Constitution or elsewhere.
This position, thus, clarifies that the right to self-determination is confined to the
specific context of foreign domination, like colonialism, and is clearly against its
application to postcolonial and other situations. The consequence of this position is that
this right cannot be extended to any situation in Indiana as it is not a context of foreign
or colonial domination, with Indiana having attained independence from colonialism.
(9) The Declaration on principles of International Law concerning Friendly Relations: The
Declaration proclaims the principle of equal rights and self-determination of people.
This right of self-determination could be implemented in any of the following forms:
“the establishment of a sovereign and independent State, the free association or
integration with an independent State, or the emergence into any other [freely
determined] political status.
(10) However, when the Friendly Relations Declaration of 1970 was drafted, Indiana stated
that this right did not apply to sovereign and independent states or to integral parts of
their territory, or to a section of people or nation, limiting it to the liberation of colonies
and other non-self-governing territories, as one of the objectives of the United Nations.
(11) The Declaration itself mentions that it doesn’t authorizes or encourages any action
which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent states conducting themselves in compliance with
the principle of equal rights and self-determination.78
(12) The Declaration on the Granting of Independence to Colonial Territories and Peoples,
1960: This Declaration for the first time provided a definition of the right to self-

77
Supra 70.
78
Para 7, Moot Proposition.

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determination as follows: “All peoples have the right to self-determination; by virtue

of that right they freely determine their political status and freely pursue their
economic, social and cultural development.”
(13) It is humbly argued that though this definition portrays the right as a principle of
universal applicability, following paragraphs 79 emphasize that the Declaration was
mainly concerned with the plight of the peoples of the former colonies.
(14) It submitted before this Hon’ble court that there is no ambiguity about the fact that it
talks about the right of all territories and peoples under colonial domination to emerge
as independent states by getting rid of colonial rule. This would mean that only the
people of a colonial territory may exercise the right of self-determination to liberate
themselves from the colonial rule. But once they have exercised their right of self-
determination and an independent state has come into existence, any part of it cannot
take measures to further self-determination and secede from the parent country, in the
present case Indiana.
(15) 1993 Declaration on the Rights of Indigenous Peoples: Art. 31 of the declaration also
talks about “right to self-determination and autonomy of the indigenous people as a
specific form of exercising their right to self-government.” A comprehensive reading
of the declaration concludes that self-determination embraces only the internal aspect
of the right to self-determination which can be realized in the form of internal
autonomy, self-government and self-management within the existing state structure.
The right to secede is not entertained in this Declaration.
(16) It also imposes restrictions on the right to self-determination. Art. 45 of the Declaration
denies the right to any state, group or person to engage in activity or to perform any act
contrary to the Charter of the United Nations. And the UN Charter gives top-most
priority to the territorial integrity of the member-state under Art. 2(4).
(17) International law places great importance on the territorial integrity of nation states. It
leaves the creation of a new state to be determined by the domestic law of the existing
state of which the seceding entity presently forms a part.80 Since the constitution of

79
Para 3, 4 and 5, Moot Proposition.
80
R. Y. Jennings, The Acquisition of Territory in International Law (1963), 8,9.

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Indiana under Art. 1 says Indiana shall be a union of State, therefore the Indiana
Constitution does not provide for the right to self-determination.
(18) The counsel submits that the international law right to self-determination only
generates a right to external self-determination in situations of former colonies; where
a people is oppressed, as for example under foreign military occupation; or where a
definable group is denied meaningful access to government to pursue their political,
economic, social and cultural development. In all three situations, the people in
question are entitled to a right to external self-determination because they have been
denied the ability to exert internally their right to self-determination. Such exceptional
circumstances are manifestly inapplicable to Kaloshia under existing conditions.
Accordingly, neither the population of the State of Kaloshia, even if characterized in
terms of "people '' or "peoples' ‘, nor its representative institutions, Legislative
Assembly or Parliament, possess a right, under international law, to secede from
Indiana.
Thus, the council humbly submits that neither ICCPR covenant or any other
international law per se, be cited to disturb the current political structure of the state.
3. The Clause (c) of the 106th Amendment Act is arbitrary and hence violative of Art.
14 of the Constitution of Indiana.
(1) Art. 14 of the Constitution of Indiana strikes at any arbitrary and unreasonable action
A legislation is said to violate Art. 14 if it is manifestly arbitrary, is obviously
unreasonable and, being contrary to the Rule of law.81 The clause (c) of the 106th
amendment here is not only manifestly arbitrary but also unreasonable against the rule
of law.
(2) Clause (c) mentions that to enforce secession an amendment shall be approved by a
referendum in which -
(i)At least twenty percent of the registered voters in the state that wants to secede
vote in the referendum; and,
(ii)The amendment is supported by a simple majority of the citizens of the state
voting in the referendum.

81
Supra 38.

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The Counsel contends that sub clause (i) of clause (c) which makes the voter turnout
of meagre 20% as a valid turnout is a manifestly arbitrary clause. Manifest arbitrariness
is something done by the legislature capriciously, irrationally and/or without any
adequate determining principle when something is done which is excessive and
disproportionate, it would apply to negate legislation under Art. 14. 82In the present
case, the base of making 20% negates the principle of equality as in a democracy and
rule of law, where the base for just voters’ turnout be at least 50%, here the current
limit proves to be unreasonable.
(3) In the Quebec Secession case of Canada 83, where 49.42 percentage of population had
demanded secession, The court, although declared the referendum as unconstitutional
since their federal structure which closely resembles to the Indiana’s before the 106th
amendment Act do not recognize right to secession, but respected the Majority opinion
of people as their voting percentage was 93.53% and not a meagre turnout. In Australia
as well in the case of secession of western Australia, where approximately ⅔ of the
population demanded secession through referendum, the court although disallowed
secession owing to their constitutional limitations, but respected the voice of people
out of their sheer majority84. In the present case, the validation of a meagre 20% of the
turnout as just and proper is not only unreasonable but also far from the real voices of
the people of the state.
(4) The principle of equality propounds that where there is no reasonable basis of
classification appears on the face of the law, the Court can strike down the law as an
instance of naked discrimination. 85In the present case, the state made an unreasonable
classification and set the limit of 20% of the voter’s turnout as against the principle
propounded.
(5) Classification means segregation in classes which have a systematic relation, usually
found in common properties and characteristics. It postulates a rational basis and does
not mean herding together of certain persons and classes arbitrarily. 86 A plea of

82
Ibid.
83
Supra 73.
84
Ibid.
85
Rural Litigation and Entitlement Kendra v. State of Uttarakhand and Ors, AIR 1958 SC 538.
86
In Re the Special Courts Bill, 1978, (1979) 1 SCC 380.

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discrimination can only be raised by showing that the impugned law creates two classes
without any reasonable basis and treats them differently.87 The amendment in the
present suffers in this aspect as there is a lack of reasonable differentia. Classification,
in order to be constitutional, must rest upon distinctions that are substantial. 88.A
reasonable classification is one which includes all who are similarly situated and none
who are not. The question then is: what does the phrase 'similarly situated' mean? The
answer to the question is that we must look beyond the classification to the purpose of
the law.
(6) The counsel submits that a reasonable classification is one which includes all persons
who are similarly situated with respect to the purpose of the law. In the present case
the classification does not commensurate with the object that sought to be achieved.
Secession is a grave issue and making the voter turnout as meagre as 20% requiring
only a simple majority of the citizens voting raises questions and hints at manifestly
arbitrariness and shows lack of legislative drafting capabilities.
(7) In State of Bombay and Another v. F.N Balsara, it was held that if on the face statute
itself, there seems to be no classification on the face of the statute/rule, then there is no
classification at all. If. There is no peculiar difference between the one set of individuals
from the other set, and yet the law hits or favours only a particular set of individuals or
class, then the statute is manifestly arbitrary and unreasonable. 89 The impugned
amendment in the present case, shows no reasonable basis as to how the majority
among the 20% of the population of the citizens can become the voice of the whole
state.
(8) Among the several tests, to decide whether a classification is reasonable or not, is
whether it is conducive to the functioning of modern society. 90 In the present case the
unreasonable differentia that the clause(c) has made is against the spirit of modern
democratic society, as it disregards the voice of the majority of the people.

87
Binoy Viswam v. Union of India (2017) 7 SCC 59.
88
Akhil Bhartiya Shoshit Karamchari Sangh (Railway) v. Union of India, MANU/SC/0058/1980
89
State of Bombay and Another v. F.N Balsara, AIR 1951 SC 41.
90
Supra 86.

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It is therefore submitted that, in the light of Indiana's approach towards the international
laws and on the basis of basic structure doctrine and other domestic laws, the said
constitutional amendment is unconstitutional.
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 not done in accordance with the provisions
of Art. 356 of the Constitution.
Art. 356(1)91 provides that if the President, “on the receipt of report from the Governor of a
State or otherwise” “is satisfied” that “the situation has arisen in which the Government of
the State cannot be carried on” “in accordance with the provisions of this Constitution” then
he may proclaim presidents rule.
(1) The conditions precedent to the issuance of the Proclamation, therefore, are :
i. that the President should be satisfied either on the basis of a report from the
Governor of the State or otherwise,
ii. that in fact a situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of the Constitution.
Therefore, the President's satisfaction has to be based on objective material.
That material may be available in the report sent to him by the Governor or
otherwise or both from the report and other sources.
92
(2) The court has summed up the guidelines of Sakaria Commission in the following
points when the constitutional breakdown may justifiably be invoked, these are -
(i) large-scale breakdown of the law and order or public order situation;
(ii) gross mismanagement of affairs by a State Government;
(iii) corruption or abuse of its power,
(iv) danger to national integration or security of the State or aiding or abetting
national disintegration or a claim for independent sovereign status and

91
Art. 356(1). The Constitution of India.
92

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(v) subversion of the Constitution while professing to work under the

Constitution or creating disunity or disaffection among the people to
disintegrate democratic social fabric. 93
(3) The just interpretation of Art. 356 is that the President has to be convinced of or to have
sufficient proof of information and be free from doubt or uncertainty about the state of
things indicating that the situation in question has arisen. Although, the sufficiency or
otherwise of the material cannot be questioned, the legitimacy of inference drawn from
such material is certainly open to judicial review.
(4) The peaceful protest and demonstration that took place in state of Kaloshia is
fundamental right guaranteed under the part III of the constitution and classifying
enjoyment of a constitutionally guaranteed right as a cause for breakdown of
constitutional machinery in the state would be a dangerous precedent.
(5) Further, Art. 355 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.”The
interpretation of the words “in accordance with the provisions of the Constitution”,
means failure to comply with any particular provision of the Constitution but a case of
failure to maintain the form of the Constitution, which, in relation to the provincial part
of the Constitution, means the form of responsible Government.
(6) The very fact that the provisions in Art. 356 is included in Part XVIII as an emergency
provision, even though it has no relation to emergency of the kind dealt in Art. 352,
would lead to the conclusion that the situation contemplated in Art. 356 is not one of
mere irregularity or difficulty; but the one in the nature of emergency ‘break-down of
the constitutional machinery’. To justify invoking Art. 356 of the Constitution, public
disorder must be of such an aggravated form as to result in failure of the entire law and
order machinery of the State so as to satisfy the President that it would be impossible
for the Government to carry on in accordance with the Constitution.
(7) In the present case, where only peaceful protests were going on and the law-and-order
situation was under control, the exercise of power under Art. 356 was invoked to
achieve a different purpose than what is covered under the scope of Art. 356.

93
Ibid

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(8) Regarding the scope and power of Art. 356 (earlier draft Art. 278) anxiety was voiced
by some members that in the name of an emergency that there should be roads into the
autonomy of the units. Shri H.V. Kamath contended that the President thereby have
ample powers to intervene in a State even without a threat to peace and order, on the
ground that the Government of the State could not be carried on in accordance with the
provisions of the Constitution. Shri Sibbanlal Saxena supported Shri Kamath and in his
view, the Art. would reduce the provincial autonomy to a farce’.
(9) The prime architect, Dr. Ambedkar who although advocated this provision expressed
the view that before suspending the Constitution in a State, the Central Government
would first give warning to the State concerned, and that if the warning failed, it would
order an election, allowing the people of the State to settle matters themselves; it was
only when these remedies failed that the President would resort to the power of
imposition of President’s rule.94 Dr. Ambedkar even accepted that ‘I hope the first thing
he will do would be to issue a mere warning to a province that has erred, that things
were not happening in the way in which they were intended to happen in the
Constitution.”95The Assembly then only accepted the provisions that the Union action
under the Art. must not be a pure invasion on provincial autonomy.96
(10) In the present case, instead of invoking alternate options to resolve the situation, Centre
had taken a drastic measure of imposing president’s rule.
(11) It is further submitted that in the Sunderlal Patwa case97 incapacity or helplessness of
a State to meet a threat to public order or peace is not a permissible ground unless it
results in non-functioning of the Government in the State. In fact, Art. 355 of the
Constitution enjoins upon the Union to help the State in maintaining its Government.
That duty is not to be discharged only by Proclaiming the Presidential rule. “Internal
disturbance”, which falls short of resulting into ‘failure of the constitutional machinery’
in the State so as to make it impossible to function, is not intended in the Constitution

94
Sunderlal Patwa v. Union of India, 1993 SCC OnLine MP 53.
95
Constituent Assembly Debates, Vol. IX, p. 177.
96
See also “The Indian Constitution Cornerstone of a Nation” Granville Austin, 213.
97
Supra 79.

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to be a valid ground for making complete inroads by the Union by taking over
completely all executive and legislative wings of a State. 98
(12) Therefore, relying on the case cited and the argument presented, it is humbly submitted
that the imposition of the President’s rule was not done in accordance with the
provisions of Art. 356 of the Constitution.
2. The breakdown of the coalition government and the peaceful protest does not amount
to the failure of the constitutional machinery of the state?

(1) It is most humbly argued before this court that protest and demonstrations that took
place in state of Kaloshia were completely peaceful in nature and represent the
essence of democracy, the imposition of state emergency is violation of constitution
and disregard to constitutional makers who cautioned about the use of the said
provision and termed it as a dead letter.
(2) Court being the sentinel on the qui vive of the Constitution, is under the obligation
to see that the democracy prevails and not gets hollowed by individuals. The
directions which have been given on the last occasion, were singularly for the
purpose of strengthening the democratic values and the constitutional norms. The
collective trust in the legislature is founded on the bedrock of the constitutional
trust.”99
(3) The Hon’ble court by referring to the observation made in Shrimanth Balasaheb
Patil v. Karnataka Legislative Assembly 100, held that there is a requirement of
imbibing constitutional morality by the constitutional functionaries and
undemocratic and illegal practices within the political arena should be curtailed. 101
The current exercise of power by imposing the president's rule is arbitrary and
unjust and must be set aside to maintain the constitutional ethos.
(4) In NCT of Delhi v Union of India, court held that representative democracy is a
basic feature of the Constitution, and that the Constitution should be interpreted to
advance - and not retard - this principle.102.

98
Ibid.
99
Union of India v. Harish Chandra Singh Rawat, (2016) 16 SCC 744.
100
Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, 2019 SCC OnLine SC 1454.
101
Shiv Sena v. Union of India, (2019) 10 SCC 809.
102
NCT of Delhi v Union of India 2018 8 SCC 501.

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(5) To exercise power under Art,356 and to dissolve the State Assemblies solely on the
ground of peaceful protest and without exploring various option to form a
government betray intolerance on the part of the Central Government and,
therefore, legally mala fide. 103
(6) The said power used in the current context is definitely a colourable exercise of
power. The learned commentator Basu wrote about this kind of misuse and made
the following comment
“The broad category of improper use of the extraordinary power is where it
is used for political purpose against a State Government which does not
belong to the party in power at the Union or to secure the purposes of that
party in forming a government of their own in a particular State, taking
advantage of fortuitous circumstances.”104
(7) In the case of SR Bommai v. Union of India105, it was said that Art. 356 has a vital
bearing on the democratic parliamentary form of Government and the autonomy of
the States under the federal constitution. The questions before the Court for
consideration was -
“Whether the President has unfettered powers to issue Proclamation under
Art. 356(1) of the Constitution.”
(8) The court resolved issue by answering to the following issues-
(a) Is the Proclamation amenable to judicial review?
(b) If yes, what is the scope of the judicial review in this respect? and
(c) What is the meaning of the expression “a situation has arisen in which the
Government of the State cannot be carried on in accordance with the provisions of
this Constitution” used in Art. 356(1)?
The proclamation is amenable to judicial review.
(9) In this context Prof. H.W.R. Wade106 has written that - “There are many cases
where some administrative order or regulation is required by statute to be approved

103
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
104
Commentary on the Constitution of India 3459 (DR. D.D. BASU, 6th edn. 2010)
105
Supra 88.
106
Prof. H.W.R. Wade, Administrative Law, 29 (6th Edn. 2010).

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by resolutions of the Houses. But this procedure in no way protects the order or
regulation from being condemned by the court, under the doctrine of ultra vires, if
it is not strictly in accordance with the Act. whether the challenge is made before
or after the Houses have given their approval is immaterial.”
(10) It was held in the case of Rameshwar Prasad (IV) v. Union of India 107 that immunity
granted to the Governor does not affect the power of Court to judicially scrutinise
the attack made to the proclamations issued under Art. 356(1) on ground of mala
fides or it being ultra vires.
(11) Even the expression "purporting to be done" in Art. 361 does not cover acts which
are mala fide or ultra vires. Hence, it would be for the Government to satisfy the
Court and adequately meet such ground of challenge under Rule of Law.108
(12) The question being of political nature is also no ground to set aside the inherent
power of the court of judicial review. The Apex Court held that -“Merely because
a question has a political complexion, that by itself is no ground why the Court
should shrink from performing its duty under the Constitution if it raises an issue
of constitutional determination. … merely because a question has a political colour,
the Court cannot fold its hands in despair and declare ‘judicial hands off’. 109
(13) In the case of Harish Chandra Singh Rawat v. Union of India and Another, 110 The
Governor set a date for the Chief Minister to request a vote of confidence, but the
Assembly was suspended in accordance with Art. 356 a day before that date. Harish
Rawat, whose government was sacked on the grounds of "breakdown of
Constitutional machinery", had moved the Uttarakhand High Court calling the
centre's decision as "arbitrary" and demanded its quashing. The High Court ordered
the floor test in the Assembly which provided relief to the petitioner and declared
the President rule in the state unconstitutional.
(14) Thus, it can be satisfactorily established that the Courts have the power to review
the proclamation issued by the president concerning president's rule.

107
Rameshwar Prasad (IV) v. Union of India (2005) 7 SCC 157.
108
Ibid.
109
State Of Rajasthan & Ors. vs Union Of India, 1977 AIR 1361.
110
Harish Chandra Singh Rawat v. Union of India and Another,(2016) 16 SCC 744.

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(15) Scope of the judicial review: Judicial review of the Presidential Proclamation is not
concerned with the merits of the decision, but to the manner in which the decision
had been reached. They are answerable to Parliament and accountable to the people.
(16) The width of the power under Art. 356 is very wide, here satisfaction of the
President is subjective satisfaction however it must be based on relevant materials.
The doctrine that the satisfaction reached by an administrative officer based on
irrelevant and relevant grounds and when some irrelevant grounds were taken into
account, the whole order gets vitiated has no application to the action under Art.
356. In the present case only, peaceful protests were going on in the state. So,
exercise of the president's rule in the present circumstances is outside the scope as
well of what the provisions asserts in the true sense. 111
(17) The expression used in the Art. is “if the President … is satisfied”. The word
“satisfied” has been defined in the Shorter Oxford English Dictionary 112 as-
“4. To furnish with sufficient proof or information, to set free from doubt or
uncertainty, to convince; 5. To answer sufficiently (an objection, question); to fulfil
or comply with (a request); to solve (a doubt, difficulty); 6. To answer the
requirements of (a state of things, hypothesis, etc.); to accord with (conditions).”
(18) Hence, it is not the personal whim, wish, or opinion of the President but a legitimate
inference drawn from the material placed before him which is relevant for the
purpose to proclaim the president’s rule,
(19) This scrutiny as to the nature of material is that it is not any material but that
material which would lead to the conclusion that the Government of the State
cannot be carried on in accordance with the provisions of the Constitution which is
relevant for the purpose. Further, the objective material so available must indicate
that the Government of the State cannot be carried on in accordance with the
provisions of the Constitution. Thus, the existence of the objective material
showing that the Government of the State cannot be carried on in accordance with
the provisions of the Constitution is a condition precedent before the President

111
Supra 88.
112
Shorter Oxford English Dictionary (3rd Edn. at p. 1792):

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issues the Proclamation. However such substance or material in the present

circumstances i.e., the peaceful protest and current political situation in the state,
are wrongly assumed to be the just and proper ground.
Meaning of the expression “a situation has arisen in which the government of the
state cannot be carried on in accordance with the provisions of this constitution” as
used in art. 356(1)
(20) On the meaning of the expressions "break-down of Constitutional machinery" and
"the government of the state cannot be carried on in accordance with the provisions
of the Constitution," Dr. Ambedkar pointed out during the debates that it would not
refer to the failure to comply merely with some provisions of the Constitution but
to "the form of the Constitution". Hence if the government of the state cannot be
carried on in accordance with the provisions of the Constitution dealing with the
parliamentary system of the government, then only Art. 356 is to be invoked. 113
(21) In SR Bommai’s Case, para 6.3.23 of the Sarkaria Commission report 114 cited
which helps in understanding the meaning and situation as when this provisions can
be invoked, it mentioned that the words “a Government of the State cannot be
carried on in accordance with the provisions of the Constitution” are of wide
amplitude, each and every breach and infraction of constitutional provision,
irrespective of its significance, extent and effect, cannot be treated as constituting
failure of constitutional machinery. Art. 356, the Commission said, provides
remedy for a situation where there has been an actual breakdown of the
constitutional machinery of the State. Any abuse or misuse of this drastic power,
said the Commission, damages the fabric of the Constitution. A literal construction
of Art. 356(1) should be avoided, it opined.
(22) The Hon’ble Court also held that under Art. 356 of the Constitution, the dissolution
of an Assembly can be ordered on the satisfaction that a situation has arisen in
which the Government of the State cannot be carried on in accordance with the
Constitution. Such a satisfaction can be reached by the President on receipt of a

113
Constituent Assembly Debates, Vol. IX, p. 177
114
R.S Sarkaria, Commission on Centre-State Relations Report, (Pt-II,1988).

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report from the Governor of a State or otherwise. It is permissible to arrive at the

satisfaction on receipt of the report from the Governor and on other material. 115
(23) In the State of Kaloshia there is nothing on record to establish the fact that such a
situation has arisen that state cannot run in accordance with the constitutional
provisions, mere peaceful protest or even to consider remotest possibility of
breakdown of law and order does not qualify the state for application of Art. 356.

2. Proper Mechanism was not followed which is required before invoking Art. 356.

(1) In the Bommai case,116 it was held that imposition of president’s rule should not be
resorted to unless all other recourses have failed.
(2) In the case of Mahabir Prasad v. Prafulla Chandra 117 in which it was laid down that
the power of Governor is absolute with regard to the appointment of Chief Minister
and the Court cannot call in question the same since it is his sole discretion. 118
Dissatisfied with this blatant misuse of power, the Supreme Court of India in the
S.R.Bommai case decided that the test of the Constitutional machinery has to be
decided on the floor of Legislative Assembly of the state (by voting) and not as per
the whim of the governor.
(3) It is necessary to stress that in all cases where the support to the Ministry is claimed
to have been withdrawn by some legislators, the proper course for testing the
strength of the Ministry is holding the test on the floor of the House. The assessment
of the strength of the Ministry is not a matter of private opinion of any individual,
be he the Governor or the President. It is capable of being demonstrated and
ascertained publicly in the House. Hence when such demonstration is possible, it is
not open to bypass it and instead depend upon the subjective satisfaction of the
Governor or the President. Such private assessment is an anathema to the
democratic principle, apart from being open to serious objections of personal mala

115
Mahabir Prasad v. Prafulla Chandra, AIR 1969 Cal 198
116
Supra 88.
117
Supra 98
118
Supra 92.

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fides. The floor-test is obligatory and that it is a prerequisite to sending the report
to the President recommending action under Art. 356(1).119
(4) In the present case, no opportunity of floor test was given to the leaders in the house,
hence invocation of president’s rule is barred by technicality as well. In the case of
H.S. Jain vs Union of India,120Allahabad High Court has provided the procedure
which needs to be followed by the Governor of a state before sending a report to
the president regarding the president's rule. These are-
i. “The Governor should have sent a message to the House under Art. 175(2) of the
Constitution, after summoning it under Art. 174(1) stating that despite his best
efforts he was unable to find out who is the person who can command the
confidence of the House, and hence the House itself should inform him about such
a person.”
ii. The verdict observes that in a case of a fractured electoral verdict where no party
or combination of parties appeared to have a majority in the house, “The only legal
alternative left for the Governor is to ask the Assembly to inform him the person in
whom it has confidence. Who can be in a better position than the House itself to
inform the Governor in whom it has confidence.
iii. “Although this course of action has not been expressly mentioned in the
Constitution, it logically flows out of Art. 164(2), and is the only democratic
alternative short of dissolution.”
iv. The Court also answered regarding the situation of deadlock and observed -
“If the elected members are permitted to come together and meet in the
House, then a Socratic debate may take place, and it is possible that a
solution may emerge. When two or more persons are sitting separately, they
may not be able to resolve their differences, but when they come together it
is possible that by discussions and negotiations some compromise may
come about. This is the democratic method also. The elected representatives

119
Supra 88.
120
H.S. Jain vs Union of India, (1996) SCC OnLine All 10591.1996 SCC OnLine All 739 1996 SCC OnLine All
739

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may put pressure on their leaders to give up their intransigent and

uncompromising attitude, and adopt a more flexible approach.”
Hence, the Council for the petitioner humbly submits that since the
president's rule was invoked before taking proper recourse, such
proclamation must be set aside.

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

SECEDE FROM THE UNION OF INDIANA?
The counsel humbly submits that Kaloshia cannot secede from the Union of Indiana. To
corroborate the petitioner's contention, the petitioner's arguments are as follows-
1. The Constitution of Indiana does not recognize the right to secession.
(1) Neither the Indiana Constitution as before 106th amendment nor any other statute
expressly defines the right to self-determination. Under the federal scheme of
Indiana, no State can secede from the Union by its unilateral act. The Indianan
Union is an indissoluble union. A State can go out of the Union only with the mutual
consent of the State concerned and the Union. Similarly, the Union cannot turn out
a State by its unilateral act. 121 Thus, unilateral secession as demanded by the state
of Kaloshia from the Union of Indiana cannot be met with.
(2) To clarify the stance of Indiana regarding the question whether states can secede or
not, the Union government in 1963 came up with 16th Constitutional Amendment.
The said piece of legislation was brought to implement the recommendations made
in November, 1962, by the Committee on National Integration and Regionalism. 122
(3) The purpose of the Bill was mainly to impose restrictions against those individuals
or organizations who want to secede from Indiana or disintegration of Indiana as
political issues for the purpose of fighting elections. 123
(4) The Committee recommended two amendments to the Constitution namely:

121
Paras Diwan, Kashmir and the Indian Union The Legal Position, 02(03), The International and
Comparative Law Quarterly, Jul., 1953, Vol. 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.
122
Lok Sabha Debates (1963), Vol. XII, Col. 5760
123
Lok Sabha Debates (1963), Vol. XII, Col. 5760

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(a) the amendment of clause (2) of Article 19 so as to include the words "the
sovereignty and integrity of India" as one of the restrictions;
(b) The amendment of Forms of oath or affirmation contained in the Third
Schedule
(5) The Constitution (Sixteenth Amendment) Act, 1963 expanded the forms of oath to
ensure that "every candidate for the membership of a State Legislature or
Parliament, and every aspirant to, and incumbent of public office" to quote its
Statement of Objects and Reasons - "pledgex himself... to preserve the integrity and
sovereignty of the Union of Indiana.”
(6) Once a Minister takes oath to uphold the integrity of Indiana, he cannot move the
Constitutional Amendment Bill to cede an Indianan territory to a foreign country
(7) The Indiana stand has been that the State of Kaloshia after formally acceding to the
Indiana Union in 1947 has become an integral and inseparable part of the sovereign
and independent Indiana nation to which principle of self-determination is not
applicable. Those who are demanding the right to self-determination for the people
of Kaloshia have either not understood the proper meaning of the term self-
determination or knowingly misusing it for ulterior motives.
(8) Similar to the unilateral secession of Quebec, Kaloshia demand to secede cannot be
allowed as Kaloshia also does not meet the threshold of a colonial people or an
oppressed people, nor can it be suggested that they have been denied meaningful
access to government to pursue their political, economic, cultural and social
development. In the circumstances, the government of Kaloshia do not enjoy a right
at international law to effect the secession of Kaloshia from Indiana.124
2. The Constitutional Assembly debate on the point of secession.
1. The ethos of the unity and integrity of the nation even has a historical genesis and is
linked to the constitutional assembly debate itself. Article 1(3) provides that the
territory of India shall comprise (i) the territory of the States; (ii) the Union territories
specified in the first schedule, and (iii) such other territories as may be acquired.
2. Dr. Ambedkar Was trying to explain why the word "Union' was being used instead of
Federation in the 1st Chapter of the Constitution. He stressed that the use of the word

124
Reference re Secession of Quebec, [1998] 2 SCR 217

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'Union' was deliberate to the extent that it was deemed to be 'indestructible and no state
had the right to secede from it. He evoked memories of the American civil war to state
that secessionist tendencies would be dealt with appropriately.
3. Citing the above arguments, the counsel humbly submits that the demand of Kaloshia
is not only illogical/unwarranted but goes against the very ethos of the foundations of
our political and constitutional structure.
3. The Indiana stand related to secession is further strengthened with the help of
different statutes which even restrict the activities leading to/resulting in
secession. Some of these legislations are discussed as follows:
(1) Unlawful Activities Prevention Act, 1967 Act of secession is criticized and
termed within the definition of unlawful activity. Section 2(o)125 defines
"unlawful activity", in relation to an individual or association, as any action
taken by such individual or association-
i. which is intended, or supports any claim, to bring about, on any ground
whatsoever, the cession of a part of the territory of Indiana or the secession of
a part of the territory of Indiana from the Union, or which incites any individual
or group of individuals to bring about such cession or secession; or ii. which
disclaims, questions, disrupts or is intended to disrupt the sovereignty and
territorial integrity of Indiana; or iii. which causes or is intended to cause
disaffection against Indiana.
(2) Prevention of Terrorism Act, 2002: This act prescribes punishment for any act
done with intent to threaten the unity, integrity, security or sovereignty of
Indiana.126
(3) National Security Act, 1980: This act provides provisions of detention of a
person, whether foreigner or a citizen if he/she is acting in any manner
prejudicial to the defence of Indiana, the relations of Indiana with foreign
powers, or the security of Indiana. 127

125
Section 2 (o), Unlawful Activities Prevention Act, 1967
126
Section 3 (1) (a), POTA, 2002
127
Section 3 (1) (a), National Security Act, 1980

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(4) Article 19 of the Constitution provides all its citizens the right to form
associations and unions' but this right only extends so far as to not hamper the
sovereignty and integrity of Indiana.

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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 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 unconstitutional.

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

4. DECLARE that the State of Kaloshia cannot 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 PETITIONER SHALL DUTY BOUND FOREVER
PRAY

On Behalf of the Petitioners

Counsel for petitioners
-SD-

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