Analysis of the Jaish and Kaish (Reorganization) Act, 2019: A Constitutional Perspective, Study Guides, Projects, Research of Constitutional Law

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KES’ SHRI. JAYANTILAL H. PATEL LAW COLLEGE

INTRA-COLLEGIATE MOOT COURT COMPETITION, 2023-

TEAM CODE: T-

IN THE HON’BLE SUPREME COURT OF ARYAVARTTA BEFORE THE

CHIEF JUSTICE AND OTHER PUISNE JUDGES OF THE COURT

ORIGINAL WRIT JURISDICTION (PUBLIC INTEREST LITIGATION)

UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVARTTA

WRIT PETITION NO. _________ OF 2023

IN THE MATTER OF

JAN JAGRUKT & Ors. …………..PETITIONER VERSUS UNION OF ARYAVARTTA …………..RESPONDENT MOST RESPECTFULLY SUBMITTED COUNSEL FOR THE PETITIONER

TABLE OF CONTENTS

SR. NO. PARTICULARS PAGE NO.

I List of abbreviations 2 II Index of authorities 3- III Statement of jurisdiction 5 IV Statement of facts 6 V Statement of issues 7 VI Summary of arguments 8- VII Arguments advanced 11-

1. Whether the petition is maintainable before the Hon’ble Supreme Court of Aryavartta under Article 32 of the Aryavarttan constitution?

11-

2. Whether the abrogation of Article 370 is valid with special reference to articles 14, 19 and 21 of the Aryavarttan Constitution?

13-

3. Whether the method followed to abrogate Article 370 is violative of Articles 356, 367 and 368 of the Aryavarttan Constitution?

18-

4. Does the Jaish and Kaish (Reorganization) Act, 2019 violate Article 3 and Part III of Aryavarttan Constitution?

24-

5. Does abolishment of Article 35A lead to violative of the Basic structure doctrine?

27-

VIII Prayer for relief 30

LIST OF ABBREVIATIONS

AIR All India Reporter Anr. Another Art. Article Cl. Clause HC High Court Hon’ble Honorable Ors. Others Para Paragraph SC Supreme Court SCC Supreme Court Cases SCR Supreme Court Reporter Supp Supplementary Supra Earlier in text UOI Union of India v. / vs. Versus Vol. Volume C.O. Constitution Order

INDEX OF AUTHORITIES

A. STATUTE REFERRED:

 The Constitution of Aryavartta, 1950  The Constitution of Jaish and Kaish, 1954  The Jaish and Kaish (Reorganization) Act, 2019 B. BOOKS REFERRED: a. Basu D. D., Shorter Constitution of India, (Fourteenth Edition, Wadhwa and Company, Nagpur 2009). b. Basu D.D., Commentary on the Constitution of India (Eighth Edition, Lexis Nexis Butterworths 2007) Vol. 1. c. Basu D.D., Commentary on the Constitution of India (Eighth Edition, Lexis Nexis Butterworths 2007) Vol. 2. d. Narendra Kumar, Constitutional Law of India (Tenth Edition, Allahabad Law Agency 2018) e. Dr.J.N. Pandey, Constitutional Law of India (Forty fourth Edition, Central Law Agency 2007) f. M. P. Jain, Indian Constitutional Law, (6th Edition, Lexis Nexis Butterworths, Nagpur 2012). g. Black’s Law Dictionary, (Eighth Edition, Garner) h. M.P. Jain, Constitutional Law of India C. DYNAMIC LINKS REFERRED:  www.manupatra.com  www.scconline.com D. CASES REFERRED SR. NO.

CASE CITATION

1 I. R. Goelho v. State of Tamil Nadu AIR 2007 SC 861 2 Mumbai Kamgar Sabha v. Adbulbhai AIR 1455 1976 SCR (3) 591 3 Anwar Ali Sarkar v. State of West Bangal AIR 75 1952 SCR 284 4 Maneka Gandhi v. Union of India AIR 597 1978 SCR (2) 621

5 Minerva Mills v. Union of India AIR 1789 1981 SCR (1) 206 6 S.R. Bommai & Ors. V. Union of India & Ors

1994 AIR 1918, 1994 SCC

(3) 1

7. Prem Nath Kaul v. State of Jammu and Kashmir

1959 AIR 749, 1959 SCR

Supl. (2) 270

8. Maqbool Damnoo v. State of Jammu and Kashmir.

1972 AIR 963, 1972 SCR (2)

9. Sampat Prakash v. State of Jammu and Kashmir

1970 AIR 1118, 1970 SCR

(2) 365

10. Berubari Union AIR 1960 SC 845, 1960 3 SCR 250
11. Navtej Singh Johar v. Union of India AIR 2018 SC 4321
12. State of Jammu & Kashmir & Ors. v. Sushila Sawhney and Ors.

AIR 2003 J K 83, 2003 (1)

JKJ 35

STATEMENT OF JURISDICTION

The petitioner humbly submits to the jurisdiction of this Hon’ble court under Article 32 of the Constitution of Aryavartta. The petitioner has filed this Writ Petition as and by way of Public Interest Litigation and has approached this Hon’ble Court in apprehension of the violation of fundamental rights which inevitably occur due to the abrogation of Article 370 and Article 35A of the Constitution of Aryavartta and enactment of the Jaish and Kaish (Reorganization) Act, 2019. Therefore, the petitioner maintains that the jurisdiction of Article 32 of the Constitution of Aryavartta, which protects the citizens from the violation of their fundamental rights, is applicable in the present case.

STATEMENT OF FACTS

I. The Union of Aryavartta was previously under British Rule and gained independence in 1947. When Aryavartta gained independence from British rule in 1947 the princely states were given a choice to join either the Dominion of Aryavartta or Rakistan. II. Jaish and Kaish was a princely state located in the northernmost part of Aryavartta, the state has held cultural and geo-political importance. The then ruler of Jaish and Kaish Maharaja Ravi Singh accede to the Union of Aryavartta in October 1947 subject to signing the “Instrument of Accession”. III. The “Instrument of Accession” contained conditions inter alia: that this Instrument will not affect the Sovereignty of the State and that the Parliament was not permitted to make any laws that were applicable to the State of Jaish and Kaish except laws on the subject of Defence, External Affairs, Communications, Elections, Judiciary, etc. IV. When the Constitution was adopted in the year 1950, article 370 was incorporated in the Constitution that granted special autonomous status to Jaish and Kaish. Further Article 35A was inserted into the Constitution through a Presidential Order in 1954, that granted special rights and privileges to the permanent residents of Jaish and Kaish. V. In June 2018, Governor’s rule was imposed in the State of Jaish and Kaish due to failure of state machinery. After the lapse of six months of Governor’s Rule, under Article 356 of the Aryavarttan Constitution President’s Rule was imposed in December 2018. VI. During this time the President of Aryavartta passed Constitutional Orders which resulted in abrogation of Article 370 and Article 35A which violated the constitutional provisions and fundamental rights of the people of Jaish and Kaish. VII. The petitioners including Jan Jagrukt, a non-governmental organisation have filed petitions challenging the constitutional validity of the Presidential Orders of 2019. The Apex Court clubbed all the petitions with the petition of Jan Jagrukt. Hence this Petition.

STATEMENT OF ISSUES

1. Whether the petition is maintainable before the Hon’ble Supreme Court of Aryavartta under Article 32 of the Aryavarttan constitution?
2. Whether the abrogation of Article 370 is valid with special reference to articles 14, 19 and 21 of the Aryavarttan Constitution?
3. Whether the method followed to abrogate Article 370 is violative of Articles 356, 367 and 368 of the Aryavarttan Constitution?
4. Does the Jaish and Kaish (Reorganization) Act, 2019 violate Article 3 and Part III of Aryavarttan Constitution?
5. Does abolishment of Article 35A lead to violative of the Basic structure doctrine?

SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF ARYAVARTTA UNDER ARTICLE 32 OF THE

ARYAVARTTAN CONSTITUTION?

The petitioners have approached the Honorable Supreme Court under Article 32 of the Aryavarttan Constitution to enforce their Fundamental Rights. They emphasize that Article 32 is an integral part of the Constitution's basic structure. The petitioners argue that the abrogation of Article 370 violates Article 14 by not providing equal protection of laws due to the unique context of Jaish and Kaish. Additionally, it infringes Article 19 by not seeking the concurrence of the state's Legislative Assembly, limiting freedom of expression. These violations curtail the right to life and liberty under Article 21, justifying their use of Article 32. They also invoke the concept of Public Interest Litigation to address broader societal concerns, making their petition maintainable and deserving of approval.

2. WHETHER THE ABROGATION OF ARTICLE 370 IS VALID WITH SPECIAL REFERENCE TO ARTICLES 14, 19 AND 21 OF THE ARYAVARTTAN CONSTITUTION? The petitioners challenge the validity of Article 370's abrogation in Jaish and Kaish, asserting violations of fundamental rights under the Aryavarttan Constitution's Part III, specifically Articles 14, 19, and 21, collectively known as the "Golden Triangle" of Fundamental Rights. They argue that the abrogation violates Article 14, which mandates equal protection of laws, as it fails to provide equal treatment given the region's unique historical and geopolitical context along with consideration to Instrument of Accession. Additionally, the petitioners claim that the revocation infringes Article 19 by not seeking the concurrence of Jaish and Kaish's Legislative Assembly, limiting residents' freedom of expression. Lastly, they contend that this action curtails the right to life and liberty safeguarded under Article 21 due to violations of Articles 14 and 19.

3. WHETHER THE METHOD FOLLOWED TO ABROGATE ARTICLE 370 IS

VIOLATIVE OF ARTICLES 356, 367 AND 368 OF THE ARYAVARTTAN

CONSTITUTION?

The petitioners challenge the method followed to abrogate article 370 of the Constitution of Aryavartta as “Fraud on the Constitution”. It is asserted that article 370 is a self-contained provision which does not permit abrogation of Article 370. The Union of Aryavartta circumvent this provision, vide C.O. 272, by interpreting “Constituent Assembly” to be read as “Legislative Assembly” under article 367 with respect to the State of Jaish and Kaish. Consequent to C.O. 272 the Union abrogated Article 370 vide C.O. 273. It is strongly asserted that the article 370 does not permit the abrogation of 370 without concurrence of the Constituent Assembly of Jaish and Kaish. Furthermore, the power under article 356 does not extend to making non- restorative, permanent alterations to the State’s Constitutional status. Thus, the petitioners establish that the Presidential Orders C.O. 272 and C.O. 273 undermined the paramountcy of the will of the people of the State of Jaish and Kaish in determining its’ relationship with the Union of Aryavartta. The petitioners therefore contend that the method followed by the Union of Aryavartta violated articles 356, 367 and 368 of the Aryavarttan Constitution.

4. DOES THE JAISH AND KAISH (REORGANIZATION) ACT, 2019 VIOLATE ARTICLE 3 AND PART III OF ARYAVARTTAN CONSTITUTION? The petitioners challenge the validity of the Jaish and Kaish (Reorganisation) Act, 2019 as violative of Article 3 and Part III of the Aryavarttan Constitution. It is firstly asserted that Article 3 of the Aryavarttan Constitution does not envisage the splitting or reduction of a state to two Union Territories, above all it was contrary to the “representative form of government”. Secondly Article 3 requires the consent of the Legislative Assembly to be considered before State boundaries are altered and proclamation under Article 356 cannot substitute that process. Furthermore, the petitioner asserts that C.O. 272 restructured the whole constitutional fabric of Jaish and Kaish ultra vires Article 3 which violated the idea of Union of States envisaged under Article 1. Changing the status from State to Union Territory resulted in reduced autonomy and Self-governance. As existence of a State was part of the basic structure

of the Constitution, the Jaish and Kaish (Reorganization) Act, 2019 violated fundamental rights of the people of Jaish and Kaish.

5. DOES ABOLISHMENT OF ARTICLE 35A LEAD TO VIOLATIVE OF THE BASIC STRUCTURE DOCTRINE? The petitioners argue that the abrogation of Article 370, which nullified Article 35A, has undermined the fundamental structure of the Aryavarttan Constitution. Article 35A provided special rights to permanent residents of Jaish and Kaish, in line with the Instrument of Accession. It was introduced through a presidential order in 1954, and Jaish and Kaish's Constitution upheld the definition of permanent residents. The petitioners claim that the circumventive elimination of Article 35A without applying the "doctrine of colorable legislation" violates the constitution's basic structure. They challenge the method of abrogating Article 370, asserting it required the Constituent Assembly's concurrence and that Article 356 doesn't allow permanent alterations to the state's constitutional status.

ARGUMENTS ADVANCED

ISSUE 1- WHETHER THE PETITION IS MAINTAINABLE BEFORE THE

HON’BLE SUPREME COURT OF ARYAVARTTA UNDER ARTICLE 32 OF THE

ARYAVARTTAN CONSTITUTION?

The Petitioners humbly submit that, a) Yes the present petition is maintainable as they have approached this Hon Supreme Court under Article 32 of the Constitution of Aryavarttan as this Article guarantees the right to the Supreme Court for the enforcement of Fundamental Rights as rightly held by the Supreme Court in the case of I.R. Coelho v. State of Tamil Nadu^1 as under: “The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and no act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence” b) It has been stated by the Petitioners in the later issues as to how the Fundamental Rights of the Petitioners have been infringed exhaustively with substantial testimonials. The abrogation of Article 370 violates Article 14, which mandates equal protection of laws, as it fails to provide equal treatment given the region's unique historical and geopolitical context along with consideration to Instrument of Accession. Furthermore, the revocation infringes Article 19 by not seeking the concurrence of Jaish and Kaish's Legislative Assembly, limiting residents' freedom of expression. This action curtails the right to life and liberty safeguarded under Article 21 due to violations of Articles 14 and

19. Thereby the petitioners are well within the ambit of Article 32 as their basic fundamental rights stand violated. c) Furthermore, as the Petitioners come together to file this Public Interest Litigation, one of the Petition being Jan Jagrukt, an organization working for the welfare of the people. This concept of ‘Public Interest Litigation’ was pioneered by the Supreme Court for the sole objective of permitting public spirited persons to initiate litigations for the (^1) AIR 2007 SC 861

enforcement of rights of any other person. In Mumbai Kamgar Sabha v. Abdulbhai ,^2 Justice Krishna Iyer gave a liberal expansion to the locus standi rule and observed: “Public interest is promoted by a spacious construction of locus standi in our socio - economic circumstances……. Respresentative actions, pro bono publico and like …. Are in keeping with the current assent of justice to the common man.” d) This Petition is thereby stands maintainable and the petition shall be granted a correct course of action. (^2) AIR 1455 1976 SCR (3) 591

ISSUE 2: WHETHER THE ABROGATION OF ARTICLE 370 IS VALID WITH

SPECIAL REFERENCE TO ARTICLES 14, 19 AND 21 OF THE ARYAVARTTAN

CONSTITUTION?

The petitioners submit that, NO abrogation of Article 370 is not valid as the fundamental rights guaranteed under Part III the Constitution of Aryavartta, whose sole objective is to ensure justice, liberty, and equality for all citizens, fostering a democratic and inclusive society have been violated. This revocation has led to infringement of Fundamental rights Guaranteed under Article 14, 19 and 21 which is rightly referred to as the “Golden Triangle” of Fundamental Rights. 2.1 Abrogation of Article 370 is violative of Article 14 of the constitution of Aryavartta: a) Article 14 of the Constitution of Aryavartta reads as, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of Aryavartta”. b) ‘Equality before the law’ ensures that everyone is subject to the same laws without discrimination and the concept of ‘Equal protection of the law’ which has been derived from the American Constitution is based on the principles of lady Justice and requires the government to protect the rights of all individuals equally and refrain from unjust discrimination in its actions and policies. c) However, in Aryavartta not all people are equal in all aspects and thus require to be classified and given special opportunities. The Supreme Court in the case Anwar Ali Sarkar vs. State of West Bengal^3 had stated on the basis of which classifications are to be done as under, “Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the State the power to classify persons for the purposes of legislation, but the classification must be rational, and in order to satisfy this test (i) the classification must be founded on an intelligible differentia which distinguished those that are grouped together from others, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. But the mere fact that the inequality has not been made with the special (^3) AIR 75 1952 SCR 284

intention of prejudicing a particular person or persons but in the general interest of administration will not validate a law if in fact it results in inequality of treatment. Nor can the constitutionality of a statute depend on the degree of the inequality brought about by the law.” d) In the given case the state of Jaish and Kaish historically being a princely state and in lieu of Aryavartta gaining independence from the british rule these princely states were given discretionary powers to either become a part of Aryavartta or Rakistan or stay independent. As the Ruler of Jaish and Kaish acceded to Aryavartta by signing the Instrument of Accession subject to various condition, such as i.Only in the matters specified in schedules i.e., Defence, External Affairs, Communications and Ancillary the Dominion Legislature shall make laws for the state of Jaish and Kaish. ii.The Dominion Legislature shall not be empowered to make laws authorising compulsory acquisition of laws, etc e)These provisions along with various other similar provisions made in the Instrument of Accession signify the special status provided to the residents of Jaish and Kaish thereby differentiating them as a distinguished Class. f) Also, its Geographical demography which places the state of Jaish and Kaish with an immediate boundary with Rakistan resulting in constant civil unrest since its accession to Aryavartta in 1947 which is relatively quiet uncommon in the remaining part of Aryavartta. This also further distinguishes the residents of this part as a Special Class. g) This differentia thereby has a rational Nexus with the object sought to be achieved by Article 370 and Article 35A which provided special advantages and conveniences to the residents of Jaish and Kaish with the sole objective of protecting the sovereignty subject to partial autonomy of the state as mentioned in both the Instrument of Accession and the Constitution of Jaish and Kaish. h) Thus, The abrogation of Article 370 is violative of Article 14 as the State has defaulted in providing equal protection of laws to the residents of Jaish and Kaish. 2.2 Rights guaranteed under Article 19 are violated by Abrogation of Article 370:

a) Article 19 (1) (a) guarantees to all the citizens the right to freedom of Speech and Expression thereby ensuring that the will of the people shall be taken into consideration and they shall be provided with an opportunity to express such will. b) But as the president of Aryavartta while passing the Order, stating that the Special rights and Privileges granted to the residents of Jaish and Kaish were revoked thereby Abrogating Article 370 along with Article 35A and also bifurcating the state into two union territories Jaish and Kaish and Radhak did not consider to seek concurrence of the legislative Assembly of the state of Jaish and Kaish, has failed to take cognizance of the will of the residents of Jaish and Kaish. c) In a democracy like Aryavartta the will of the people is expressed through the members legislative assembly duly elected by the Residents of the state who represent them in the assembly and work for the welfare of the state. As the Presidential order as just without hereby taking Concurrence of the Legislative Assembly of Jaish and Kaish while abrogating Article 370, the right of Freedom of Speech and expression of the Residents of Jaish and Kaish stands Curtailed. 2.3 Abrogation of Article 370 has led to infringement of Article 21: a) The petitioners state that as rightly mentioned above, Articles 14, 19 and 21 have been collectively recognised as a ‘Golden triangle’ of the fundamental rights and are not mutually exclusive but are inter-related and form a fundamental unity. While giving the judgement in I.R. Coelho v. State of Tamil Nadu^4 the Supreme Court held that, “Article 31B gives validation based on fictional immunity. In judging the validity of constitutional amendment we have to be guided by the impact test. The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate compatibly with the fundamental rights and this is where Judicial Review comes in. The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so to what extent. The degree of invasion is for the Court to decide. Compatibility is one of the species of Judicial Review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle referred to above is the basic feature of the Constitution as it stands for equality and rule of law.” (^4) Supra 1

Thereby laying emphasis on the perception of the three articles forming basic structure and being mutually co-related. b) It has also been established in the case Maneka Gandhi vs. Union of India^5 that a law or action which violates any one of these rights may be subject to judicial review based on the violation of any of the other two rights. It was held that a law depriving a citizen of personal liberty has not only to stand the test of Article 21 but it must also satisfy the requirements of Article 19 and 14. c) Similarly giving reverence to these three Article in the case Minerva Mills v. Union of India^6 , Hon’ble Justice Y. V. Chandrachud , C.J. speaking for the Majority observed, “Three Articles of our Constitution and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14,19 and 21” d) As stated above it has been evidently established that the abrogation of Article 370 has resulted in the infringement of rights and freedoms guaranteed under article 14 and article 19. This clearly demonstrates that infringement of these rights have resulted in the curtailment of Right to life and liberty protected under Article 21 Of the Constitution. (^5) AIR 2007 SC 861 (^6) AIR 1789 1981 SCR (1) 206

ISSUE 3: WHETHER THE METHOD FOLLOWED TO ABROGATE ARTICLE 370

IS VIOLATIVE OF ARTICLES 356, 367 AND 368 OF THE ARYAVARTTAN

CONSTITUTION?

The Petitioners humbly submits that, The method followed to abrogate article 370 is violative of the constitutional provisions as enumerated under Article 356, 367 and 368 of the Aryavarttan Constitution and a “Fraud on the Constitution”. The Presidential Orders C.O. 272 and C.O. 273 undermined the paramountcy of the will of the people of State of Jaish and Kaish in determining the relationship between the State of Jaish and Kaish and the Union of Aryavartta. 3.1 Article 356 of the Aryavarttan Constitution is restorative in nature The petitioners state that the nature of Article 356 is restorative, intended to resolve a breakdown in a State’s constitutional machinery. Hence, any exercise of power by the president or his delegate, the Governor is transient in nature. a) Article 357 (2) of the Constitution of Aryavartta states that “Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority” Therefore, the State Legislature may ‘alter or repeal or amend’ any legislation enacted by Parliament during the President’s Rule. b) Further Article 370 (1) (d) states that “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of subclause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.” It is apparent that the power under 370(1) (d) does not permit the abrogation of Article 370. Further, the power under Article 356 does not extend to making non-restorative, permanent alterations to the State’s constitutional status. That the Executive’s (President’s) powers were limited to the framework built by the Constitution. An Executive Order could not make permanent changes to the Constitution. Further, Constituent powers could not be equated with ordinary legislative powers. c) In S. R. Bommai v Union of India (1994)^7 , “It will be an inexcusable error to examine the provisions of Article 356 from a pure legalistic angle and interpret their meaning only through jurisdictional technicalities. The Constitution is essentially a political document and provisions such as Article 356 have a potentiality to unsettle and subvert the entire constitution scheme. The exercise of powers vested under such provisions needs, therefore, to be circumscribed to maintain the fundamental constitutional balance test the Constitution is defaced and destroyed.” Having been passed during an extended period of President’s Rule, the Presidential Order takes cover of a temporary situation, meant to hold the field until the return of the elected government, to accomplish a fundamentally permanent and irreversible alteration of the status of the State of Jaish and Kaish without the concurrence, consultation or recommendation of the people of the State acting through their elected representatives. This amounts to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State of Jaish and Kaish upon its accession. 3.2 Article 370 of the Aryavarttan Constitution is a self-contained provision. a) Article 370 was a self-contained Code that defined and regulated the relationship between the state of Jaish and Kaish and the Union of Aryavartta. From time to time, the President of Aryavartta could, with the concurrence of the Government of the State of Jaish and Kaish, pass orders applying with exceptions and modifications, specific provisions of the Aryavarttan Constitution to the State, based upon exigencies of the situation. To this end, through numerous Presidential Orders, starting in 1954, provisions of the Aryavarttan Constitution in a modified form to the State. (^7) 1994 AIR 1918, 1994 SCC (3) 1

b) The Constituent Assembly of Jaish and Kaish drafted a Constitution for the State, specifically recognising that Jaish and Kaish was an integral part of the Union. Crucially, the existence of the Constituent Assembly of Jaish and Kaish is recognised in the Scheme of Article 370. Clause (3) of Article 370 provided that any change to the r++elationship between the State of Jaish and Kaish and the Aryavarttan Union, expressed in Article 370, could only be brought about on the recommendation of the Constituent Assembly. c) In Prem Nath Kaul v The State of Jammu & Kashmir (1959)^8 The Supreme Court held that “Constitution makers attached great importance to the final decision of the Constituent Assembly and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of Art. 370(1) is made conditional on the final approval by the said Constituent Assembly” The petitioner thus asserts that by circumventing the self-contained provision of Article 370 by way of C.O. 272 and C.O. 273 the Union of Aryavartta has abused the constitutional provisions. **3.3 The Presidential Order C.O. 272 and C.O. 273 undermined the scheme of Article

a)** It was unconstitutional for the Union to abrogate Article 370, while the State of Jaish and Kaish was under President’s Rule. The first Presidential Order (CO 272) set into motion the abrogation of Article 370 by interpreting the reference to the ‘Constituent Assembly, in Article 370(3) to mean ‘Legislative Assembly of the State’. This then allowed the Union Parliament to recommend the Abrogation of Article 370 via a statutory resolution under Article 370 (3), given the State was under President’s Rule (i.e. the Union Parliament was standing in for the State Legislative Assembly). The said Presidential Orders undermined the scheme of Article 370 by altering the Article 370 and consequentially the federal relationship between the state of Jaish and Kiash and the Union of Aryavarttan. b) In Maqbool Damnoo v State of Jammu and Kashmir (1972)^9 , This Hon’ble Apex Court upheld a Presidential Order which changed the phrase ‘Sadar-i- riyaasat’ to mean ‘Governor’. The Court upheld this Order only because it viewed the (^8) 1959 AIR 749, 1959 SCR Supl. (2) 270 (^9) 192 AIR 963, 1972 SCR (2) 1014

amendment as a mere clarification to a change in nomenclature, as the office of the ‘Sadar-i- Riyasat’ no longer existed. There was no alteration of the constitutional framework. 3.4 The Proviso to Article 370 (3) is crucial, Article 370 cannot be Abrogated without a ‘Constituent Assembly’ a) The impugned Presidential Order (CO 272) inserted clause 4 into Article 367 of the Constitution which stated that ‘Constituent Assembly’ shall mean ‘Legislative Assembly’. Article 367 is only an interpretational clause but CO 272 brings about an a-mendment which is not merely interpretational but a substantive one by extending the powers of a Constituent Assembly to that of the Legislative Assembly. b) The Union of Aryavaratta circumvent the need for the recommendation of the Constituent Assembly for abrogation of Article 370, through the Presidential Order CO 272, by interpreting ‘Constituent Assembly’ as the ‘Legislative Assembly’. The recommendation of the Constituent Assembly was a ‘condition precedent, for the President of Aryavartta to abrogate Article 370. The Constitutional framers specifically stated that the recommendation of the Constituent Assembly was imperative for the abrogation of Article 370. When the Constituent Assembly dissolved in 1957, they chose not to repeal Article 370 and hence the power of abrogation dissolved with the dissolution of the State’s Constituent Assembly in

In Sampat Prakash v State of Jammu & Kashmir^10 , (1968) the Supreme Court held that Article 370 would continue to exist even after the dissolution of Jammu and Kashmir’s constituent Assembly. The judgment relied upon reasons, which were based on Presidential orders passed before the Constitution of Jammu & Kashmir came into being (in 1952 and 1954). Thereafter, the Jammu & Kashmir Constituent Assembly gave its concurrence to these orders as well. However, those reasons could not be used later, after the Jammu & Kashmir Constituent Assembly ceased to exist, to justify similar Presidential orders. Once the Assembly was no longer there, the Presidential powers were also curtailed. c) In light of the second proviso to Section 147 of the Constitution of Jaish and Kaish could not pass bills that amend the Constitution of Aryavartta as applicable in relation to the State of Jaish and Kaish. The Constituent Assembly of Jaish and Kaish has put such a disability on the Legislative Assembly of the State and hence the State Legislative Assembly did not enjoy (^10) (1969) 2 SCR 365: AIR 1970 SC 1118

the same powers as the Constituent Assembly. Hence, the Legislative Assembly could not recommend for cessation of Article 370 of the Constitution of Aryavartta. d) Article 370 could not have been effectively amended, so as to alter its inherent character by an amendment to the interpretation clause contained in Article 367 of the Constitution of Aryavartta. The Constituent Assembly and State Government were purposely designated repositories of decision-making power under Article 370 so as to enable the will of the people of the State to be reflected in any change in special status. This cannot be undone by replacing the State Government with an unelected Governor and Constituent Assembly of the State with the legislature, and its absentia (as was the case by way of President’s rule), by Parliament. These steps effectively made the Central government both the giver and recipient of the consent, which is violative of the original provision. The petitioners thus state that the above contentions thus establish the unique status of Jaish and Kaish. Thay clarify that Article 370 could not be abrogated without the concurrence of the people of Kaish. The legislative authority created a delusion that it is acting in compliance with the constitutional provisions but the method adopted by the Union of Aryavartta to abrogate Article 370 was a “Fraud on the Constitution”

ISSUE 4: DOES THE JAISH AND KAISH (REORGANIZATION) ACT, 2019

VIOLATE ARTICLE 3 AND PART III OF ARYAVARTTAN CONSTITUTION?

The Petitioners humbly submit that, YES The Jaish and Kaish (Reorganisation) Act, 2019 is violative of Article 3 and Part III of the Aryavarttan Constitution. 4.1 A State cannot be downgraded to a Union Territory by executive action. Article 3 of the Constitution of Aryavartta states that, Formation of new States and alteration of areas, boundaries or names of existing States.— Parliament may by law— (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State: [Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States 2 ***, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.] a) Article 3 of the Constitution of Aryavartta stipulated that Union Territories could be formed by joining parts of two States, by increasing or diminishing the area of a State, or by altering the boundaries or the name of a State. However, a State could not be reduced or split

into Union Territories. Article 3 does not envisage the splitting or reduction of a state to two Union Territories and it was contrary to the “representative form of government”. b) It is further asserted by the Respondent that, Article 3 requires the consent of the legislative assembly to be considered before state boundaries are altered and proclamation under Article 356 cannot substitute that process. The process prescribed under Article 3 cannot be substituted by a proclamation under Article 356, as was done with Presidential Order CO 272. Circumventing the conditions under Article 3 using President’s Rule has the effect of an amendment, which is “subversive” of the Constitution. The powers under Article 356 are not absolute, and the provision certainly does not grant power to deprive the Constitution of its mandatory processes. c) In the Berubari Union (1960)^11 , the Supreme Court had held that “the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it” It is thus strongly contented that the Aryavattan Constitution did not allow encroaching upon the autonomy of the State of Jaish and Kaish as retained in the Instrument of Accession. 4.2 Article 3 did not provide for the abolition of states because that would violate Article 1 which articulates the idea of a “Union of States”. a) The petitioners state that four years after the reorganisation, the Union Territories of Jaish and Kaish and Radakh are starved for representation in the Aryavarttan democratic set up. The practical consequences were manyfold: first, Ladakh has no representatives in the Rajya Sabha; second, Jaish and Kaish does not have proportional representation in the Lok Sabha; third, the territories cannot participate in presidential elections; fourth, they can’t send ministers to Services Tax (GST) Council; fifth, the lack of a governor means that the territories will not be consulted for the Appointment of High Court judges. It is thus asserted by the petitioners that the Presidential Order CO 272 restructured the whole constitutional fabric of Jaish and Kaish. b) The petitioners further assert that changing the status from state to Union Territory results in reduced autonomy and self-governance. A federal structure, establishes a system of ‘dual polity’ where the local government is responsible for local issues and the Union government for national issues. However, this was not the case for Union Territories as they are governed (^11) AIR 1960 SC 845, 1960 3 SCR 250

by the Union. So, states and Union Territories had a different constitutional status. Jaish and Kaish were undoubtedly a part of Aryavartta’s federal structure as it has elevated levels of autonomy. By reducing the state to two Union Territories, the Union breached the federal structure and ‘dual polity’. It took the rights conferred to the people of the state and converted it into a ‘unitary polity’. c) The Presidential proclamation of December 19, 2018 removed the two provisos of Article 3, applicable to Jaish and Kaish was invalid and unconstitutional. The purpose of 356 is to restore democracy, the object of any proclamation under Article 356 can only be to ensure that the government of the state is carried on in accordance with the provisions of the Aryavarttan Constitution. The Apex Court has recognised that the President’s powers under Article 356 were limited and not absolute in case of S. R. Bommai v Union of India (1994)^12. The existence of a state was part of the basic structure of the Constitution. Jaish and Kaish could not be considered an exception to this idea, and be stripped of its autonomy and identity as a state. 4.3 The Jaish and Kaish (Reorganisation) Act, 2019 violates fundamental rights Because the right to autonomous self-government and the right to an identity within the federal framework are fundamental rights flowing from the right to life and other provisions contained in Part III of the Constitution. Their removal in a manner that has made a mockery of the “procedure established by law” is clearly in violation of fundamental rights and ought to be struck down forthwith. Because the Jaish and Kaish (Reorganisation) Act, 2019 violates fundamental rights contained inter-alia in Articles 14, 19 and 21 of the Constitution. 4.4 Principle of non-retrogression In Navtej Johar v Union of India^13 the court laid down to the principle of non-retrogression, “the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise.” It is respectfully submitted that the crucial right at stake here is the right to representation, and to be governed by one’s elected representatives. Consequently, having once achieved the degree of representation (^12) Supra 7 (^13) AIR 2018 SC 4321