TC - 39

LAW COLLEGE DEHRADUN, FACULTY OF UTTARANCHAL UNIVERSITY

NATIONAL MOOT COURT COMPETITION - 2019

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

Others
(PETITIONER)

v.

Union Of Indiana
(RESPONDENT)

PETITION INVOKED UNDER ART. 132 and 32 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……………………………………….2

1. INDEX OF AUTHORITIES………………………………………..3

2. STATEMENT OF JURISDICTION………………………………...6

3. STATEMENT OF FACTS…………………………………………..8

4. STATEMENT OF ISSUES………………………………………….10

5. SUMMARY OF ARGUMENTS…………………………………….11

6. ARGUMENT ADVANCED…………………………………………14

7. PRAYER……………………………………………………………..28

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LIST OF ABBREVIATIONS

Hon‟ble Honourable

Art Article

SC Supreme Court

HC High Court

& And

UN United Nations

ICCPR International Covenant on Civil and Political Rights

Sec Section

ISP Indiana Samaj Party

ICP Indiana Congress Party

IJP Indiana Janta Party

Govt Government

CM Chief Minister

SLP Special Leave Petition

AIR All India Report

SCR Supreme Court Report

v Versus

Ors Others

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INDEX OF AUTHORITIES

Cases Page no.

John Vallamattom v. Union of Indiana, Writ 11

petition (civil) 242 of 1997
Tilkayat Shri Govindlalji Maharaj v The 11
State of Rajasthan and Ors, 1963 AIR 1638,
1964 SCR(1) 561
Seshammal v. State of Tamilnadu, Civil 11
Appeal 441 of 1971, (Supreme Court,
14/03/1972)

The Commissioner, Hindu Religious 11

Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar Of Shirur Mutt, 1954
AIR 282, 1954 SCR 1005
Sri Venkataramana Devaruand v. The State 11
of Mysore, 1958 AIR 255, 1958 SCR 895

Sardar Syedna Taher Saifuddin Saheb v. 12

State of Bombay, 1962 AIR 853, 1962 SCR
Supl. (2) 496

Commissioner of Police & Ors v. Acharya 12

Jagdishwarananda, Civil Appeal No. 6230 of
1990 (Supreme Court , 11/03/2004).

Surjeet Singh Chhabra v. Union of India and 12

Ors, MANU/SC/0660/1997.

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Aash Mohammad v. State of Haryana and 12

Ors, L.P.A. No. 1023 of 2017 (Punjab-
Haryana High Court 01/05/2017).

Amnah Bint Basheer v. Central Board of 13

Secondary Education WP(C)No.6813 of
2016(B),(Kerela High Court, 23/07/2015).

Reshma and Ors v. State of Karnataka and 15

Ors, Civil Appeal No. 3484 of 2022
(Karnataka HC 10/05/2022)

S.R.Bommai v. U.O.I, 1994 AIR 1918, 1994 17

SCC (3)1

Mazdoor Kisan Shakti Sangathan v Union of

India, AIR 2018 SC 3476 19

Kesavananda Bharati v. State of

Kerala,(1973)4 SCC 225; AIR 1973 SC 1461

In Re: The Berubari Union And… v.

Unknown, AIR 1960 SC 845

Indira Nehru Gandhi v. Shri Raj Narain &

Anr, Appeal No. 887 of 1975(Supreme Court
07/11/1975)

Statute

1.The Constitution Of India

2.International Covenant on Civil and Political Rights
3.UN Charter

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4.General Assembly Resolution

BOOKS, ARTICLES& WEBSITES

1. The Constitution of India, by P. M. Bakshi
2. Indian Constitutional Law by M.P. Jain
3. Indian Polity by M.K. Laxmikant

INTERNET SOURCES
1. www.manupatra.com
2. www.scc.com
3. www.indiankanoon.com
4. www.google.co.in
5. www.lawyerservices.com

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STATEMENT OF JURISDICTION

The Hon‟ble Supreme Court of Indiana has the jurisdiction to hear the petition under
Article32 and 136 of the Indiana Constitution.

the principal relief claimed is regarding clubbing of all the petition as a special leave petition
and the same is filed under Article 136 of the constitution of Indiana.

136 of the constitution if Indiana provides for:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces

Writ Petition filed by Deputy chief minister is filed under Article 32 of the Constitution of
India

Article 32 of the Indian Constitution provides the remedies conferred by the part IV of the
constitution:

1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this part is guaranteed

2) The Supreme Court shall have power to issue directions or orders or writs, including the
writs in the nature of habeas corpus, mandamus, certiorari, quo warranto and prohibition,
whichever may be appropriate for the enforcement of any of the rights conferred by this Part

3) Without prejudice to the powers conferred by on Supreme Court by clause (1) and (2),
parliament made by law may empower any other court to exercise within local limits of its
jurisdiction all or any of the power exercisable by Supreme Court under clause (2).

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4) The right given by this article shall not be suspended except as otherwise provided for by
this constitution

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STATEMENT OF FACTS

1. Indiana is a country in South Asian sub continent. Section 6 of Government of Indiana Act,
1935 states wants to be the part of Indiana, it can be so, by signing Instrument of Accession.

2. Kaloshia is a state situated in the southern part of Indiana, Kaloshia signed the Instrument
of Accession and became a part of Indiana.

3. Since Indiana had ratified the charter of the UN and ICCPR, the parliament of Indiana
introduced the 106th Constitutional Amendment Bill, 2020 to add article 3A to the Indiana
constitution, which gave the right to the states to secede after a referendum, since the IJP was
in the majority, the bill was passed and received the permission of the President on 3rd March
2022.

4. The majority population in Indiana practices Induism religion, whereas Kaloshia is an

exceptional state where most people practices the Drakism religion, Apart from this the
regional party ISP has been able to form government in Kaloshia, where as ICP or IJP
genrally forms the govt. in the centre. Since 2014 IJP being right wing political govern, the
tussle between state and centre has increased.

5. Astonishingly in 2022, ISP didn‟t attain full majority in the State Legislature to form the
Government and a coalition Government was formed between ISP and IJP. The majority of
the council of minister of the state, including the CM, were not the member of ISP.

6. One fine day, a private school in Kaloshia denied entry to girls belonging to the Drakism
religion, specificially, on the ground that they were wearing a Hijab.After few days , the state
government of Kaloshia issued notification under section 133(2) of kaloshia education act,
1983 Aggrevied by this, Aliza Firdos a student filed a Writ Petition before the Hon‟ble High
Court of Kaloshia challenging the notification of the government.

7. The petitioner contended that wearing of hijab is an essential religious practice.what one
wears is matter of individual choice protected under „privacy jurisprudence.‟ They aslo
contended that the action of state government suffers from the violation of the „doctrine of
proportionality‟, the possible alternatives that pass the „least restrictive test‟

8. Later, the High Court of Kaloshia declared that the notifications of the State Government is
constitutionally valid and falls under reasonable restrictions of respective fundamental rights.

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The court further remarked that wearing Hijab is not an essential religious practice of
Drakism. Public spaces such as school, freedom may be curtailed to maintain discipilne and
decorum.

9. Against of the court judgment, the people of Kaloshia started to protest violently on the
road and in public places. After this, there was also political tension prevailing as the
members of ISP were unwilling to be in a coalition government after the notification
regarding the Hijab ban was released. As per their party stand, they were not consulted before
realizing the same.

10. Despite many requests from the IJP, the coalition Government broke. However protests
were still persisiting and intensifying , observing that the demonstrations and the break-down
of the coalition government, the Government of Indianana imposed President‟s rule in the
State of Kaloshia on the ground of failure of constitutional machinery.

11.Meanwhile, a group of young advocates, named „„Indiana Young Lawyers

Association‟‟approached the President of Indiana on the issue 106th CAA,2022 is against
constitutional framework and article , President transferd the dispute to SC for adjudication
under Art 143 of the Constitution of Indiana.

12. After the imposition of the President‟s rule in Kaloshia, the protest intensified further
causing disturbance in the public order. The people demanded for the secession from the
Union, invoking the provisions under Art 3A, which was inserted by the 106th Constitutional
Amendment Act, 2022.

13. As the President imposed the President‟s rule in the state, the former Deputy CM of
Kaloshia filed a writ petition before the SC stating that the Act of the Central Govt. was
arbitrary as the Governor should have been given the opportunity for the formation of
possible government as flexibility in the government formation is one the advantages under
parliamentry form of government. After the formation state govt. should have been given the
opportunity to control ongoing protest.

14. Apart from this, in response to the judgement of the High court regarding the Hijab- ban
issue, Aliza firdos and other students have filed a SPL before the supreme court of Indiana.
All three petitions have been accepted and clubbed by the SC are pending futher hearing.

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STATEMENT OF ISSUES

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

ARTICLE 19 (1) (A) AND ARTICLE 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

1. Whether the wearing of the hijab is a fundamental right under article 19(1)(A) and
article 25 of the constitution of Indiana?
It is most humbly submitted before the honorable supreme court of Indiana that the wearing
of a hijab is not a fundamental right under article 19(1)(A) and article 25 of the constitution
of Indiana.

Article 19(1)(A) of the constitution of Indiana states

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression

As this right guarantees the freedom of speech and expressions but it has to be duly noted by your
lordship that these rights are not absolute there are certain reasonable restrictions to the same and
in our given case the reasonable restrictions have been proved keeping in mind the Karnataka
Education Act and the Uniform Civil Code.

Article 25 gives every person the right to freedom of conscience and the right to freely
profess, practice, and propagate religion subject to public order, morality, and health but this
practice os religion should be essential in nature and it is thereby proved on the basis of
essential religious practice test and the essential religion practice test should have the
following indica.

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.
• Foundation of the practice must precede the religion itself or should be co-founded at the origin
of the religion.
• 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,

Such practice must be binding nature of the religion itself and it must be compelling. That a
practice claimed to be essential to the religion has beên carried on since time immemorial or
is grounded in religious texts per se does not lend to it the constitutional protection unless it

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passes the test of essentiality as is adjudged by the Courts in their role as the guardians of the
Constitution

SINCE THE WEARING OF HIJAB IS NOT AN ESSENTIAL RELIGIOUS PRACTICE

UNDER ARTICLE 25 THEREFORE IT CAN BE CONTENDED THAT IT IS NOT A
FUNDAMENTAL RIGHT UNDER ARTICLE 25 OF THE CONSTITUTION OF
INDIANA.

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

CONSTITUTIONALLY VALID?

It is most humbly submitted before the supreme court of Indiana that the 106th constitutional
amendment is constitutionally invalid. As right of self determination is a very hollow right
also Indiana under article 1 is a union of states which does not allow any state a right to
secede as it questions the integrity of the nation, Though the country and the people may be
divided into different States for convenience of administration, the country is one integral
whole, its people a single people living under a single imperium derived from a single source.
Therefore it is proved that the 106TH constitutional amendment acr,2022 is, constitutionally
valid.

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

OF KALOSHIA WAS CONSTITUTIONALLY VALID?

It is most humbly submited before the hon‟ble supreme court of Indiana that the imposition
of the president rule in the state of Kaloshia was constitutionally valid.

As it is mentioned in the facts that people of Kaloshia were protesting violently on the roads
and public places and also when there is no government in state legislature due to non-
attainment of majority and split or is highly impotent to assure a smooth administration in the
state.The imposition of presidnets rule in the state is the urgent need as to taking situation in
control and directing the role of police in the state.

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4.Whether the state of Kaloshia can be given the right to secede from the union of
Indiana

No the State of Kaloshia can not be given the right to secede from the union as
nowhere explicitly it is mentioned in any International instrument/ document that a
state can be given a right to secede from the Union and also the 106th Constitutional
Amendment is a violation of Article 1 of the Constitution, hence the amendment is
unconstitutional and on that basis Kaloshia can not be allowed with the secession
from the Union.

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ARGUMENT ADVANCED

1. Whether the wearing of the hijab is a fundamental right under article 19(1)(A) and
article 25 of the constitution of Indiana?
It is most humbly submitted before the honorable supreme court of Indiana that the wearing
of a Hijab is not a fundamental right under article 19(1)(A) and article 25 of the constitution
of Indiana
1.1 What does Hijab means
Hijab is worn by the Muslim women and it is seen as the symbol of modesty and
privacy in Islam. The modern English Dictionaries confined the meaning of the
word "Hijab" only to mean the covering of head and neck by the Muslim women,
but the Islamic scriptures provides wider meaning to the word "hijab". Almost all
the major school of Islam defined the word "hijab" as the complete covering of
everything except the face and hands.

1.2 wearing of Hijab is not a fundamental right under article 25 of the constitution of
Indiana
Article 25 of the Constitution of India confers on all Persons the freedom of Conscience,
Practice and Propagation of a Religion-
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practice and
propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of
a public character to all classes and sections of Hindus.

The constitutional guarantee under Article 25(1) not only, protects the freedom of religious
opinion, but it also enables an individual to practice the belief as per his religious norms and also
permits to do certain acts in pursuance of the religion. Religious practices referred in Article 25(1)

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include practices which forms an integral part of the religion. 1 A religious practice constitutes
essential part of religion or not is to be decided with reference to that religion, the formula may
differ in different cases2. Essential part of religion or a religious practice has to be decided by the
Court with reference to the doctrine of a particular religion3.
1.3what is an essential religious practice?
Indiana Young Lawyers Association surveyed the development of law relating to essential
religious practice and the extent of its constitutional patronage consistent with the long standing
view. Ordinarily, a religious practice in order to be called an “essential religious practice” 4should
have the following indicia:
• 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.
• Foundation of the practice must precede the religion itself or should be co-founded at the origin
of the religion.
• 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,
 Such practice must be binding nature of the religion itself and it must be compelling. That a
practice claimed to be essential to the religion has beên carried on since time immemorial or is
grounded in religious texts per se does not lend to it the constitutional protection unless it passes
the test of essentiality as is adjudged by the Courts in their role as the guardians of the
Constitution

Sri Venkatarmana Devaru v. State of Mysore5 , the Court laid down a crucial precedent
which marked a shift in judicial approach wherein the Court‟s role became determinative in
determining whether a practice qualified as essential That a practice claimed to be essential to
the religion has been carried on since time immemorial or is grounded in religious texts per se
does not lend to it the constitutional protection unless it passes the test of essentiality as is
adjudged by the Courts in their role as the guardians of the Constitution The main crux of
'essential practices' test was formulated in The Commissioner, Hindu Religious

1
John Vallamattom v. Union of Indiana, Writ petition (civil) 242 of 1997

2
Tilkayat Shri Govindlalji Maharaj v The State of Rajasthan and Ors, 1963 AIR 1638, 1964 SCR(1) 561

3
Seshammal v. State of Tamilnadu, Civil Appeal 441 of 1971, (Supreme Court, 14/03/1972)

4
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Shirur
Mutt, 1954 AIR 282, 1954 SCR 1005
5
Sri Venkataramana Devaruand v. The State of Mysore, 1958 AIR 255, 1958 SCR 895

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Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Muttw6, where
the court stated that "what constitutes the essential part of a religion is primarily to be
ascertained with reference to the doctrines of that religion itself. The essential practice test
clearly states that the practices integral to the faith are exempted from state intervention, in
order to determine whether a particular act constitutes an essential religious function or not
reliance needs to place on the doctrines and religious texts of that particular religion".7

Religion does not merely lay down a code of ethical rules for its followers to accept, but also
includes rituals and observances, ceremonies and modes of worship which are regarded as
integral parts of the religion. The test of finding whether a certain practice is essential is to
observe whether the nature of the religion or belief will change without that practice, if
fundamental part of that belief changes without that practice than the practice is integral and
essential part of the religion8. For instances, among Hindus, offering of food to the idol;
performance of periodical ceremonies; recital of sacred texts; offering oblations to the sacred
fire have been regarded as the essential religious practices. As such, in Sikhs, , the wearing
of Kara,9 the wearing and carrying of Kripans,10 recital of Holy Guru Granth Sahib, are the
integral part of their religion. Similarly, for Muslims, calling Azan,11have been marked as an
essential religious practice.

Religious Practices are reflective of matters concerning religion and if religion is to be

venerated, then the practices annexed thereto are equally respectable and have to be complied
withThe protection under Arts 25 and 26 extends the protection to the rituals and observance,
ceremonies and modes of worship which are integral parts of the religion and what
constitutes an essential practice has to be determined with reference to the doctrine of the
6
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Shirur
Mutt, 1954 AIR 282, 1954 SCR 1005
7
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 AIR 853, 1962 SCR Supl. (2) 496

8
Commissioner of Police & Ors v. Acharya Jagdishwarananda, Civil Appeal No. 6230 of 1990 (Supreme Court ,
11/03/2004).
9
Surjeet Singh Chhabra v. Union of India and Ors,(Supreme Court 25/10/1996).

10
Art. 25, the Constitution of India.

11
Aash Mohammad v. State of Haryana and Ors, L.P.A. No. 1023 of 2017 (Punjab-Haryana High Court
01/05/2017).

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religion/faith Thus, it can be opined that religious practices forming integral part of religion
are protected under Article 25 of the Constitution.

1.4what does drakism holy book says about hijab?

One of the surahs of the Holy Quran “Surah-Al-Noor” only talks about guarding one's modesty
and lowering their gaze
 Paragraph 30 of the “Surah-al-Noor” says that believing men should lower their gaze
and guard their modesty.
 Similarly, paragraph 31 of the «Surah-al-Noor" says that believing women should lower their
gaze and guard their modesty, and veil their bosoms in front of any man that is not their
husband.
 The surah does not mention anything specifically making it mandatory for the women to
cover their heads by wearing a hijab or headscarf; and if wearing of hijab/headscarves is not
mandatory for drakism men then why should it be mandatory for drakism women.

Thus, covering of head (wearing Hijab) is not an essential religious practice as it is not even
mentioned in the religious scriptures of drakism and is not guaranteed underArticle 25 of the
Constitution of Indiana.Wearing hijab or head scarf is not a part of "essential religious practice' of
faith; the Holy scripture does not contain any such injunctions; the Apex Court has laid down the
principles for determining what is an "essential religious practice' vide Wearing hijab at the most
may be a cultural' practice which has nothing to do with religion. Culture and religion are different
from each other. Based on this in Resham and another vs. State of Karnataka and others'12 the
Karnataka High Court held that wearing of hijab or headgear women is not inessential religious
practice. The Court further said that "holy book does not mandate wearing of hijab or head gear".

It is recommended as measure of social security for women and to facilitate their safe access to
public domain. At the most the practice of wearing this apparel may have something to do with
culture but certainly not with religion. The shows concern for the cases of “molestation of
innocent women” and therefore, it recommended wearing of this and other apparel as a measure of
social security. Thus, it can be reasonably assumed that the practice of wearing Hijab had a thick
nexus to the socio-cultural conditions then prevalent in the region. The veil was a safe means for
the women to leave the confines of their homes. The Quranic principles in relation with the dress

12
Reshma and Ors v. State of Karnataka and Ors, Civil Appeal No. 3484 of 2022 (Karnataka HC 10/05/2022).

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code for women only prescribes for lowering of gaze instead of hiding the face behind the hijab.
Although, the Quran does not put any restrictions on women, the hadiths were employed to put
severe restrictions on the women13. In the ancient time, the hijab was worn by the women to
distinguish themselves from the slave girls, however, in the present time these practices lost its
sanctity. The hadiths reflected contradicting principles against the basic tenets of the Holy Quran.
This contradicting principles lowers the relevancy of the prevailing practices. Thus, it can be
concluded that the practices of wearing hijab have now become redundant with the time and does
not form the integral part of the Islamic religion. As established in this article with the support of
abovementioned reasons, the practice of wearing hijab does not form an integral part of the
Islamic religion and such practices are not considered as the essential religious practice and hence,
cannot be guaranteed the protection under Article 25(1) of the Constitution of India.

1.5 Is wearing Hijab a matter of conscience?

Conscience is by its very nature subjective. Merely stating that wearing Hijab is an overt act of
conscience and therefore, asking them to remove hijab would offend conscience, would not be
sufficient for treating it as a ground for granting relief. Freedom of conscience as already
mentioned above, is in distinction to right to religion as was clarified by Dr. B.R. Ambedkar in the
Constituent Assembly Debates. There is scope for the argument that the freedom of conscience
and the right to religion are mutually exclusive. Even by overt act, in furtherance of conscience,
the matter does not fall into the domain of right to religion and thus, the distinction is maintained.
There is no evidence that the petitioners chose to wear their headscarf as a means of conveying
any thought or belief on their part or as a means of symbolic expression..

Conscience means the moral sense, the faculty of judging the moral qualities of actions, or of
discriminating between right or wrong14 . Tenets means one of the principles or beliefs that a
larger set of beliefs is based on.15This implies that the Court looks into the beliefs of every
community and looks as to what they regard as essential and fundamental to their religion. If the
religious tenets don‟t allow a woman to become a priest, the state cannot import secular ethos of
gender equality to allow a woman to be appointed as a priest. If it is allowed, the constitutional
protection will become void and hollow16 thus it should be held “In view of the above discussion,

13
Asghar All Engineer, Quran, Hadith and Women, THE DAWN, available
at https://www.dawn.com/news/492444/quran-hadith-women, last seen on 12/02/2022.
14
Black‟s law Dictionary, 2nd Edition
15
Oxford Learners Dictionary
16
Amnah Bint Basheer v. Central Board of Secondary Education WP(C)No.6813 of 2016(B),(Kerela High
Court, 23/07/2015).

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we are of the considered opinion that wearing of hijab by drakism women does not form a part of
essential religious practice.” And thus does not fall under a fundamental right under article 25.

1.6 How wearing of a Hijab is not a fundamental right under article 19(1)(A)?

Article 19(1)(A) of the constitution of Indiana states

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression

Whereas article 19(2) says that nothing in sub clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in
the interests of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence.

Now as the opposite council says that wearing of hijab is a fundamental right under Right to dress
then it is very well known to the court of honour that all the fundamental rights are not absolute
and there are always certain reasonable restriction for the same in this given case government of
kaloshia gave a notice under section 133(2) under Kaloshia education Act 1983 has prescribed a
uniform for each and every school, the process conferred to the global consensus that uniforms
and dress codes should be imposed in educational institutions. The State government‟s imposition
of a dress code is a reasonable restriction and does not offend constitutionally protected rights as it
is „religion-neutral‟ and „universally applicable‟ to all students. It is noted that the dress code in
fact promotes the principles of secularism.

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

CONSTITUTIONALLY VALID?

It is most humbly submitted before the supreme court of Indiana that the 106th constitutional
amendment is constitutionally invalid and it can be elaborated on the following grounds,

As this amendment is against the constitutional framework and what was intended by our
constituent assembly members.

Although it is a question that Indiana is a signatory of UN charter and the international

covenant of civil and political rights which is ICCPR has been ratified by Indiana but that
doesn‟t mean WE ARE BOUND TO FOLLOW IT.

In the preamble of our Indiana constitution a very heavy word has been used which gives us a
lot of power as a union and this word is nothing but “sovereign” we are state of a sovereign
nature and we are not bind by anyone, we ourselves are supreme in nature it is very well
carved in Bodin‟s statement that sovereigns who make the laws cannot be bound by the laws
they make also known as majestas est summa in cives ac subditos legibusque soluta potestas.
This statement has often been interpreted as meaning that a sovereign is not responsible to
anybody and is not bound by any laws.

2.1 Article 1 of the constitution of Indiana

Article 1 in The Constitution Of India 1949

1. Name and territory of the Union

(1) India, that is Bharat, shall be a Union of States

(2) The States and the territories thereof shall be as specified in the First Schedule

(3) The territory of India shall comprise

a) the territories of the States;

[(b) the Union territories specified in the First Schedule; and]

(c) such other territories as may be acquired.

Since it is clearly mentioned in the article 1 that India which is bharat as a union of states and
not the federation of states in order to make it more clear let us emphasise

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2.2 Is India Union or Federation?

According to Article 1, the country is described as Union of States' (rather than Federation of
States* ) although its Constitution is federal in structure.

Now According to Dr B R Ambedkar, the phrase Union of States' has been preferred to
Federation of States' for two reasons:

(a) that the Indian Union is not the result of an agreement by the states and

(b) the component states have no freedom to secede from it.

Though the country and the people may be divided into different States for convenience of
administration, the country is one integral whole, its people a single people living under a
single imperium derived from a single source.

Whereas Article 2 talks about

: Admission or establishment of new States

• Parliament may by law admit into the Union, or establish, new States on such terms and
conditions, as it thinks fit. For eg. the addition of the State of Sikkim by the 35th (1974) and
36th (1975) constitutional amendments, but nowhere in no terms and no meaning the states
have ever been guaranteed a right to secede from the union.

Does the power of Parliament to diminish the areas of a state (under Article 3) include
also the power to cede Indian territory to a foreign country?

This question came up for examination before the Supreme Court in a Presidential reference
in1960. The decision of the Central government to cede part of a territory known as Berubari
Union(17West Bengäl) to Pakistan led to political agitation and controversy and thereby
necessitated the Presidential reference. The Supreme Court held that the power of Parliament
to diminish the area of a state (under Article 3) does not cover cession of Indian territory to a
foreign country.

2.3 RIGHT TO SELF DETERMINATION :A HOLLOW RIGHT

17
AIR 1960 SC 845

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British academician James Crawford stated in 1998 that state practice since 1945 did not
extend a “right” to self-determination beyond those available to colonized peoples; hence, no
unilateral right to secession existed. According to Crawford, any “right” to self-determination
has to be exercised under the parent state‟s constitutional system and based on respect for its
territorial integrity18, Crawford appears to conflate two contexts: the existence of a right and
the exercise of the right. 19

Although the right to self-determination has been explicitly mentioned under the UN Charter
and other treaties, the exercise of this right lacks a normative framework. This lack of norms
allows states to unilaterally decide whether or not the peoples with legitimate claims should
be granted independence. Hence, even legitimate struggles with similar facts of repression
may not be successful, especially when the parent state in question is not a “rogue” or a weak
state

AS RIGHT TO SELF DETERMINATION IS A RIGHT GRANTED BY ICCPR WHICH IS

AN INTERNATIONAL FOREIGN BODY AND ACCORDING TO OUR PREAMBLE
AND ARTICLE 1, INDIANA IS THE UNION OF STATES WHICH IS SOVERIGN IN
NATURE THEREFORE IT IS CONTENDED THAT 106TH CONSTITUTIONAL
AMENDMENT ACT,2022, IS CONSTITUTIONALLY INVALID.

18
James Crawford, State Practice and International Law in Relation to Secession, 1999 BRIT. Y.B. INT‟L L.
114-16
19
Nanda, supra note 76, at n.44. (discussing self-determination and secession or the exercise of such right of
self-determination are not the same)

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

KALOSHIA IS CONSTITUTIONALLY VALID?

It is most humbly submited before the hon‟ble supreme court of Indiana that the imposition
of the president rule in the state of Kaloshia was constitutionally valid by ellaborating
following Points:

As Article 356 of the Indiana constitution states-

Provisions in case of failure of constitutional machinery in State

(1) If the President, on receipt of report from the Governor of the State or otherwise, is
satisfied that a situation has arisen in which the government of the State cannot be
carried on in accordance with the provisions of this Constitution, the President may
be Proclamation

Under this, proclamation20 can be made by the president under article 356 on his own and
even without considering the Governor's Report21.

3.1As it is mentioned very clearly in the facts that people of Kaloshia started to protest very
violently on the road and in public places, subsequently the coalition government which was
formed between IJP AND ISP also broke, which resulted in a situation of havoc and
uncertainity since the protest started to intesify on roads and in public places all of this
constituted the situation of urgency as it was the risk , the question of the lives of the people
and because of the same the president‟s rule in the state of Kaloshia was imposed on the
grounds of failure of constitutional machinery in the state.

3.2According to Article 356, Failure of Constitutional Machinery is demarcated as the

situation in which a state cannot be carried on in accordance with the provisions laid in the
Constitution. Specifications have been laid down to deal with circumstances when there is no
government in state legislature due to non-attainment of majority and split or is highly
impotent to assure a smooth administration in the state.

20
S.R.Bommai v. U.O.I, 1994 AIR 1918, 1994 SCC (3)1
21
Art. 356, the Constitution of India
Art. 355, the Constitution of India
Art. 365, the Constitution of India

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3.3When a State Government is functioning correctly, it is run by an elected Council of

Ministers responsible to the State‟s Legislative headed by the Chief Minister known as
Vidhan Sabha. But during the President‟s Rule, the Vidhan Sabha is either prorogued or
dissolved, necessitating a new Elections in the state is required.

3.4Supreme Court in its recent order of farmers protest in the country stated that farmers have
a constitutional right to continue with their protest, but in regards to the orders and
suggestions, supreme court upheld the farmer‟s right to continue their protest in a peaceful
manner as a constitutional right subject to public order.

No restriction will be placed in the exercise of such rights as long as it is non-violent and
does not result in damage to the life and properties of other citizens.

As the same situation was prevailling in the given case as well

3.5Right to Protest is protected under Article 19(1) (a), Article 19(1) (b) and Article 19(1)
(c) of the Indian Constitution.

Reasonable restrictions: However, like other fundamental rights, right to protest is also not
absolute and also subject to reasonable restrictions mentioned under Article 19(2) and 19(3)
on the following grounds:

1. In the interests of the sovereignty & integrity of India,

2. The security of the State,

3. Friendly relations with foreign States,

4. Violation of Public order,

5. Decency or morality or in relation to Contempt of court, defamation or incitement of

an offence

The grounds of restrictions based on violation of public order can be reasonable only when
there is evidence that protesters will incite lawless or disorderly acts and that such acts are
likely to occur in the state.

3.6As protests started to intesify gradually and there was no government present in the state
legislature, by electing or giving the chance to prove the majority by the other parties is time
bound process and since it was the matter of urgency and the question of life and death of
people was in the hands of the government.

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Also, in order to put the police force and executive in action the union government steps in
to take charge with greater authority22 and tries to restore the situation in the state, with
different tools like section 144, to suppress the voice of citizens or for legitimate reasons like
controlling the violent protest in state.

Supreme Court held in the situation of protest, recognised the right to protest and asked the
government and police force to frame guidelines but also held that the order to impose
section 144 was a good weapon to curb23.

So by proving on the grounds of failure of constitutional machinery because of violent

protests and breaking down of coalition government, it is thereby proved that the
imposition of president’s rule in the state of kaloshia is constitutionally valid.

22
Re:Ramlila Maidan Incident v. Home Secretary, Union of India & Ors, Writ petition(CRL)No. 122 of 2011
(Supreme Court, 4/5.06.2011).
23
Mazdoor Kisan Shakti Sangathan v Union of India, AIR 2018 SC 3476

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4. Whether the state of Kaloshia can be given the right to secede from the union of
Indiana

International law doesn‟t provide a right to secession. Self-determination is appropriate for

the nations or peoples but not for minorities. Therefore the issue becomes whether the
separist group is a nation in itself or the people.

4.1The ones who want to secede have focused on the UN clear recognition of self-
determination while disregarding the accompanying caveats that the principle does not
supersede a state's territorial integrity. When we talk of self-determination who is the self
here the group or the state as a Whole .If a secessionist group want to make a different state
then it should be dominated by their own culture, language or religion but here in the
Kaloshia state people belonging to the other religion also exist and the issue herein is raised
by the Drakism community and not the state as a whole. Self-determination proves a
misleading way to characterize the issue because it focuses attention exclusively on people
and not on places, even though a minority or community experience discrimination or suffers
Human Rights violation then it has a grievance even though it claims no historical right to a
particular piece of territory.

4.2The concept of secession remains undefined by Treaty law and United Nations declaratory
General Assembly resolutions. Indeed the word secession is conspicuously absent from
virtually all international legal instrument.

Secession is viewed negatively and is associated with Chaos, Schism, fragmentation and
instability .The views against secession are so strong that the former UN Secretary General U
Thant, contented in 1970 that „„The International Organization has never accepted and does
not accept and I do not believe will ever accept the principle of secession of part of its
member states‟‟

4.3 Although it is a question that Indiana is a signatory of UN charter and the international
covenant of civil and political rights which is ICCPR has been ratified by Indiana but that
doesn‟t mean WE ARE BOUND TO FOLLOW IT.
In the preamble of our Indiana constitution a very heavy word has been used which gives us a
lot of power as a union and this word is nothing but “sovereign” we are state of a sovereign
nature and we are not bind by anyone, we ourselves are supreme in nature it is very well
carved in Bodin‟s statement that sovereigns who make the laws cannot be bound by the laws

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they make also known as majestas est summa in cives ac subditos legibusque soluta potestas.
This statement has often been interpreted as meaning that a sovereign is not responsible to
anybody and is not bound by any laws.

The constitution of Indiana in itself doesn‟t gives the right to secede. The concept of
secession is a violation of Article 1 of the Indiana Constitution which states that „„India, that
is Bharat shall be union of states‟‟ The drafting committee chairman even explained that the
term „„Union of States‟‟ was used to ensure and clarify that States did not have the right to
secede from Indiana.

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PRAYER

Wherefore it is prayed, in the light of the case, issues raised, arguments advanced, and
authorities cited that this Hon‟ble Supreme Court may be pleased to:

1.dismiss that the wearing of Hijab is a fundamental right under Article 19(1)(A) and
Article 25 of the constitution of Indiana.

2. announce that the 106th constitutional amendment act is constitutionally invalid.

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

4 to not to grant the right to secede to state of Kaloshia.

And/Or
Pass any other Order, Direction, Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.

For this Act of Kindness, the Appellants Shall Duty Bound Forever Pray.
ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

Sd/-
COUNSEL FOR THE RESPONDENT

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