PETITIONER

TC: MALFOY

LAW COLLEGE DEHRADUN, FACULTY OF UTTRANCHAL UNIVERSITY

NATIONAL MOOT COURT COMPETITION – 2024

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

IN THE MATTER OF

MR. MATHEW WESLEY…………………………………………PETITIONER NO.1

MR. JASON…………………………………………………………PETITIONER NO.2

VERSUS

UNION OF INDIANA……………………………………………………RESPONDENT

PETITION INVOKED UNDER ARTICLE 32 i.e., WRIT PETITION OF THE

CONSTITUION OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………….3-4
INDEX OF AUTHORITIES………………………………………………………………5-7
STATEMENT OF JURISDICTION……………………………………………………….8
STATEMENT OF FACTS……………………………………………………………….9-10
STATEMENT OF ISSUES………………………………………………………………...11
SUMMARY OF ARGUMENTS……………………………………………………….12-13
ARGUMENTS ADVANCED…………………………………………………………...14-30
1. WHETHER THE JURISDICTION OF SUPREME COURT CAN BE ALTERED
DURING AN ONGOING CASE, THUS NECESSITATING THE EXAMINATION OF
THE CONSTITUIONAL VIRES 107TH CONSTITUIONAL AMENDMENT
ACT,2023?...........................................

2. WHETHER THE BASIC STRUCTURE DOCTRINE APPLICABLE TO THOSE

CONSTITUIONAL AMENDMENT THAT ARE NOT MADE UNDER ARTICLE 368
OR TO THOSE ORDINARY LAWS THAT HAVE THE EFFECT OF AN
AMENDMENT?.................................................................

3. WHETHER THE PROCLAMATION OF EMERGENCY UNDER ARTICLE 352 OF

THE CONSTITUTION OF INDIANA IN HUADIA, IS CONSTITUIONALLY
TENABLE?............................................................

4. IS THE ABROGATION OF THE SPECIAL STATUS OF THE STATE OF HUADIA,

THEREBY CAUSING A FUNDAMENTAL CONSTITUIONAL ALTERATION,
CONSTITUIONALLY SUSTAINABLE OR FRAUGHT WITH CONSTITUIONAL
MISCHIEF?................................................................

PRAYER………………………………………………………………………………….31

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LIST OF ABBREVIATIONS

1. & And

2. AIR All India Reports

3. Art. Article

4. SC Supreme Court

5. Mr. Mister

6. Pg. Page

7. SCC Supreme Court Cases

8. SCR Supreme Court Reporter

9. v. Versus

10. u/A Under Article

11. UOI Union of India

12. W.P. Writ Petition

13. S.O.H State of Huadia

14. AOC Articles of Confederation

15. CM Chief Minister

16. FHC Federal High Court

17. COI Constitution of India

18. LG Lieutenant Governor

19. TOM Treaty of Magna

20. CAA Constitutional Amendment Act

21. HOS Head of State

22. GOI Government of India

23. DOI Dominion of Indiana

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24. FR Fundamental Rights

25. Assn. Associations

26. Corp. Corporations

27. A.P.S.R Andhra Pradesh State Road

28. TOM Treaty of Magna

29. ANR. Another

30. LG Lieutenant Governor

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INDEX OF AUTHORITIES

TABLE OF CASES:

S.NO. NAME OF THE CASE CITATION

1. S.R. BOMMAI V. UOI AND ORS. AIR 1994
2. PREM NATH KAUL V. UOI AIR 1959
3. STATE OF KARNATKA V. UOI 1977 4 SCC 608
4. K.C. GAJAPATI NARAYAN DEO V. STATE OF 1953 AIR 375, 1954 SCR 1
ORISSA
5. R.S. JOSHI V. AJIT MILLS AIR 1977, 2279 SCR 338
6. NAGESHWAR V. AP.SR 1959 AIR 308
7. UNITED PROVINCES V. GOVERNOR AIR 1939
GENERAL IN COUNCIL
8. MINERVA MILLS V. UOI AND ORS. AIR 1980 SC 1789
9. STATE OF RAJASTHAN & ORS. V. UOI 1977 AIR 1361 SCR 1
10. GOLAKNATH V. STATE OF PUNJAB 1967 AIR SCR 2 762
11. KESAVANANDA BHARTI V. STATE OF WRIT PETITION (CIVIL)
KERALA & ANR., 1973 135 of 1970
12. WAMAN RAO V. UOI 1981 2 SCC362
13. MADRAS BAR ASSN. V. UOI 2014, 10 SCC 1
14. SC ADVOCATE-ON-RECORD ASSN. V. UOI AIR 1994 SC 441
15. SHANKARI PRASAD V. UOI AIR 1951 SC 458, 1951
SCR 89
16. SAJJAN SINGH V. STATE OF RAJASTHAN 1965 AIR 845, SCR (1) 933,

17. KULDEEP NAYAR V. UOI AIR 2006 SC 3127

18. STATE OF WEST BENGAL V. UOI 1963 AIR 1241, SCR (1) 371

19. RAM KRISHNA DALMIA V. SHRI JUSTICE 1958 AIR 538, 1959 SCR 279,
S.R. TENDOLKAR

20. STATE OF BIHAR V. UOI 1970 AIR 1446

21. MAKHAN SINGH V. STATE OF PUNJAB 1964 AIR 381 SCR (4)

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22. A.D.M. JABALPUR V. SHIVKANT SHUKLA 1967 AIR 1207

23. STATE OF MADHYA PRADESH V. BHARAT 1967 AIR 1170 SCR (2)
SINGH
24. ARJUN SINGH V. STATE OF RAJASTHAN AIR 1958RAJ347

25. INDIRA GANDHI V. SHRI RAJ NARAIN & AIR 1975 SC 2299
ANR.
26. RAJ NARAIN V. STATE OF U. P AIR 1975 SC 865

27. IN RE BERUBARI & EXCHANGE OF AIR 1960 SC 845

ENCLAVES
28. STATE OF MADHYA PRADESH V. UNION OF AIR 2012 SC 2518
INDIA
29. STATE OF JHARKHAND V. STATE OF BIHAR 2004(2) JCR 183(JHR)
& ORS.
30. ATTORNEY GENERAL FOR INDIA &ORS. 1994 AIR 2179, SCC 54
AMRATLAL PRAJIVANDAS & ORS.

31. RAJ KUMAR RAJINDER SINGH V. UNION OF AIR 1967 HP1

INDIA AND OTH.
32. DURGADAS SHIRALI V. UOI &ORS. 1966 AIR 1078, SCR 573

33. S.P. SAMPATH KUMAR ETC. V. UOI &ORS. 1987 AIR 386, SCR 435

34. L CHANDRA KUMAR V. UNION OF INDIA AIR 1997 SUPREME COURT

1125, 1997 (3) SCC 261

35. I.R. COELHO BY LRS V. STATE OF TAMIL AIR 1951 PATNA 91

NADU AND ORS.
36. M NAGARAJ V. UOI & ORS. AIR 2007 SC 71, SCC 212

37. STATE OF BIHAR V. MAHARAJADHIRAJ 1SCR889, AIR 1952

KAMESHWAR SINGH

38. MAHANT MOTI DAS V. S.P. SAHI AIR 1959 SC 951

39. MINERVA MILLS V. UOI AIR 1980 SC 1789

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BOOKS REFERRED

1. Introduction to the Constitution of India, D.D. BASU, 26TH Edition,2022

2. The Constitution of India, ARUN K. THIRUVENGADAM,2017
3. Indian Constitutional Law, M.P. JAIN, 8th Edition,2023
4. Constitutional Law of India, J.N. PANDEY,55th Edition,2017
5. Constitutional Law of India, A CRITICAL COMMENTARY, H.M. SEERVAI, (4th
Edition)
6. The Constitution of India: Bare Act,2023
7. Atul M Setalvad, conflicts of law, (2nd edition, 2007 and 3rd edition, 2014).
8. V.N. Shukla, constitution of India, (13th edition,2017)

STATUTES

1. The Constitution of India,1950

2. Jammu and Kashmir Reorganisation Act, 2019
3. Indiana Independence Act,1947
4. Government of Indiana Act,1935

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STATEMENT OF JURISDICTION

The petitioner humbly submits this memorandum for the petition filed before this
Hon’ble Court. The petitioner herein has invoked the Writ Jurisdiction of this Hon’ble
Court under ARTICLE 32 of the Constitution of Indiana.

The present memorandum sets forth the facts, contentions, arguments and laws on
which the claims are based in present case.

All of which is most respectfully submitted

ARTICLE 32

“32. Remedies for enforcement of rights conferred by this part

 (1) the right to move to Supreme Court by appropriate proceeding for the
enforcement of the rights conferred by this part is guaranteed.
 (2) The Supreme Court shall have the power to issue directions or orders or writs,
including writs in nature of Habeas Corpus, Mandamus, Prohibition, Quo
Warranto and Certiorari, whichever may be appropriate, for the enforcement of
any rights conferred by this part.

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STATEMENT OF FACTS

NOTE: The present case has three parts with three different significances.
I
First part shows that a confederation was formed whose provisions were documented into
Articles of Confederation (AOC) when war was declared between Country X and Country Y.
Drawbacks were that no Judicial Institutions were there neither there was a demarcation of
power between Union and States. Only after the dispute over rights of river named servena
arises inaugural of written constitution was drafted. The authority of union government was
limited and curtailed. A strong central executive and judicial institutions was established.
With the advent of constitution several doctrines were also developed such as Doctrine of
Judicial Review through the case of Marbury v. Madison where Supreme Court held that if
any act of Parliament is repugnant to Constitution, then it is void. Another such Doctrine was
Doctrine of Implied powers through the case of M’ Culloch v. State of Maryland.
Furthermore, the Supreme Court also made observation about the constitutional provisions
pertaining to the president’s authority in times of war and emergency.

II

Second part provides that Indiana is a country in the South Asian Subcontinent with different
features and have diverse culture. Initially, it was under the colonial rule of Y, which led to
exploitation of the economy. Under Y’s control the Parliament of Y enacted numerous
legislations were passed. One such example is GOVERNMENT OF INDIANA ACT, 1935.
This act enhanced Indiana administration as it introduced the principle of Federalism. Section
6 of this act provides that if any state wish to join Indiana can do so by signing of
INSTRUMENT OF ACCESSION. Several princely states did not initially sign it to get
included in Dominion of Indiana. An example is State of Huadia, situated in north of Indiana.
Indiana Independence Act, 1947 was liberated. Government of Indiana Act, 1935 remained
valid until Indiana had created its own Constitution. Due to civil war, provincia was facing a
crisis and also there were financial difficulties. Monarch saw this opportunity to tackle
financial power and to maintain his country strong army. Significant population of minority
community “PUSTANIA” resided there. The treaty of magna was signed between Y and
provincia. It was agreed through that treaty that all the decision in respect of Huadia shall be
taken in accordance with the will of the people residing there. Later on, the constitution was
drafted and became enforceable from 26th January, 1950. It provides fundamental rights to
citizens and non-citizens in certain circumstances and demarcates the power between the
Central Legislature/Government and State Legislature/Government. Provincia was divided
into four different parts: Belastin and Gazastin practiced Communism and Dictatorship,
Nizrastin and Subastin. Belastin and Gazastin have differences from Indiana they tend to
show some aggression and envy towards Indiana. People of Huadia demanded for their own
legislator and wanted the autonomy as other states enjoys. Parliament passed 10 th
Constitutional Amendment Act,1961 which added Article 371AA under Part XXI.it provided

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special status to Huadia. Lieutenant Governor was the executive head of Huadia. In 1975
Indiana faced proclamation of National Emergency on grounds of Internal Disturbance as
provided under Article 352 of the Constitution. 44th Constitutional Amendment Act,1978 was
passed by Indiana Parliament which was basically done to prevent politically motivated
proclamations of National Emergency and to keep check on power of Government and
President regarding such proclamations. 70th Constitutional Amendment Act,1992 was added
that any change made under Article 371AA shall not be an amendment made under Article
368 of the Constitution and shall be considered as ‘Supplementary Provision”. Federalism
has been declared as one of the basic features of the Constitution, Huadia was not granted
such autonomy as other federal states and the basic structure only applies to constitutional
amendments.

III

In the initial year of 21st century there was a n increase in economy concept behind this was
Liberalisation, Privatisation and Globalisation. Citizens of Belastin & Gazastin were not
satisfied with the economic development taking place in their countries. According to
multinational NGO, samvadha leaders of Belastin and Gazastin were violating the human
rights of their citizens of their country and were focused only on military upgradation. Since
2015, Indiana started facing issue of refugees from Belastin and Gazastin. Huadia started
facing issues within the state and there was a high crime rate in the State. The central
government decided to decrease the authority of the state. President enacted Ordinance which
further created a lot of tension between the State and the Central Government. State
Government filed a writ petition challenging this ordinance before the High Court of Huadia.
The constitutionality of the act was challenged. Petitioner were contending that violation of
state autonomy has been done and basic structure doctrine has been violated also it is against
the concept of Parliamentary form of government.in 2023, when more than 50 infiltrators
were apprehended by the BSFI then national emergency was proclaimed under Article 352 of
the Constitution on the grounds of internal disturbance. A notification was issued that
imposed limitation on the fundamental rights guaranteed under Article 19 in accordance with
Article 358 of the Constitution. Mr. Mathew filed a writ petition before the Supreme Court of
Indiana challenging the proclamation of emergency under Article 352 of Constitution. After
proclamation of emergency, Parliament passed an order titled THE STATE OF HUADIA
REORGANISATION ORDER,2023, in order to abrogate the special status provided to State
of Huadia under Article 371AA. The state was converted into a Union Territory. The former
CM of the SOH, Mr. Jason, on ground that parliament had given birth to colourable
legislation challenged this order. Supreme Court accepted this petition The centre of the
dispute revolved around the Treaty of Magna. Furthermore, parliament passed 107 th
Constitutional Amendment Act,2023 which repealed Article 363 and proviso to Article
131(1) of the constitution of Indiana so that the SC can interpret the Treaty of Magna.

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STATEMENT OF ISSUES

ISSUE 1
WHETHER THE JURISDICTION OF SUPREME COURT CAN BE ALTERED
DURING AN ONGOING CASE, THUS NECESSIATING THE EXAMINATION OF
THE CONSTITUTIONAL VIRES OF THE 107th CONSTITUTIONAL
AMENDMENT ACT,2023?

ISSUE 2
WHETHER THE BASIC STRUCTURE DOCTRINE APPLICABLE TO THOSE
CONSTITUTIONAL AMENDMENTS THAT ARE NOT MADE UNDER ARTICLE
368 OR TO THOSE ORDINARY LAWS THAT HAVE THE EFFECT OF AN
AMENDMENT?

ISSUE 3
WHETHER THE PROCLAMATION OF EMERGENCY UNDER ARTICLE 352 OF
THE CONSTITUTION OF INDIANA IN HUADIA, IS CONSTITUTIONALLY
TENABLE?

ISSUE 4
IS THE ABROGATION OF THE SPECIAL STATUS OF THE STATE OF HUADIA,
THEREBY CAUSING A FUNDAMENTAL CONSTITUTIONAL ALTERATION,
CONSTITUTIONALLY SUSTAINABLE OR FRAUGHT WITH CONSTITUTIONAL
MISCHIEF?

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SUMMARY OF ARGUMENTS

1. WHETHER THE JURISDICTION OF SUPREME COURT CAN BE ALTERED

DURING AN ONGOING CASE, THUS NECESSIATING THE EXAMINATION
OF THE CONSTITUTIONAL VIRES OF THE 107th CONSTITUTIONAL
AMENDMENT ACT,2023?

The counsel on behalf of the petitioner humbly submits before this Hon’ble Court that
the jurisdiction of the Supreme Court cannot be altered during an ongoing case as the
Supreme Court is the Apex Court and the supreme and the fundamental rights of the
people of Huadia are violated. Supreme Court have exclusive and original jurisdiction
which is wide and also provides that the dispute is justiciable. Parliament passed 107th
constitutional amendment act,2023 which further provides that the Supreme Court can
interpret the Treaty of Magna.

2. WHETHER THE BASIC STRUCTURE DOCTRINE APPLICABLE TO

THOSE CONSTITUTIONAL AMENDMENTS THAT ARE NOT MADE
UNDER ARTICLE 368 OR TO THOSE ORDINARY LAWS THAT HAVE THE
EFFECT OF AN AMENDMENT?

The counsel on behalf of the petitioner humbly submits before the Hon’ble court that
yes, the basic structure doctrine is applicable to those constitutional amendment that
are not made under Article 368 or to those ordinary laws that have the effect of an
amendment as it was held in several cases that if the ordinary laws or its provisions
violate the basic structure, then they will be unconstitutional. With the changing time
whenever there is a need to add new rights, the constitution can be amended.

3. WHETHER THE PROCLAMATION OF EMERGENCY UNDER ARTICLE

352 OF THE CONSTITUTION OF INDIANA IN HUADIA, IS
CONSTITUTIONALLY TENABLE?

The counsel on behalf of the petitioner humbly submits before the Hon’ble court that
no, the proclamation of emergency under Article 352 of the constitution of Indiana in
Huadia is not constitutionally tenable. As the presence of a constitutional or governance
arrangement wherein decisions related to Huadia are to be made in accordance with the
will of the people and hence, there was a lack of consultation.

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4. IS THE ABROGATION OF THE SPECIAL STATUS OF THE STATE OF

HUADIA, THEREBY CAUSING A FUNDAMENTAL CONSTITUTIONAL
ALTERATION, CONSTITUTIONALLY SUSTAINABLE OR FRAUGHT
WITH CONSTITUTIONAL MISCHIEF?

The counsel on behalf of the petitioner humbly submits before the Hon’ble court that
the abrogation of special status of the State of Huadia causing constitutional mischief.
As, declaring a state of emergency in Huadia would imply a serious situation
threatening the security or stability of the region. This carries the potential for misuse
of power and overriding usual safeguards for regional autonomy. Hence, declaring a
state of emergency in Huadia does indeed carry significant implications.

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ARGUMENT ADVANCED

1. WHETHER THE JURISDICTION OF SUPREME COURT CAN BE ALTERED

DURING AN ONGOING CASE, THUS NECESSIATING THE EXAMINATION
OF THE CONSTITUTIONAL VIRES OF THE 107th CONSTITUTIONAL
AMENDMENT ACT,2023?

The counsel on behalf of the petitioner humbly submits before this Hon’ble Court that
the jurisdiction of the Supreme Court cannot be altered during an ongoing case as the
Supreme Court is the Apex Court and the supreme and the fundamental rights of the
people of Huadia are violated. Supreme Court have exclusive and original jurisdiction
which is wide and also provides that the dispute is justiciable. Parliament passed 107th
constitutional amendment act,2023 which further provides that the Supreme Court can
interpret the Treaty of Magna.
When state related matter arises on specific grounds, original jurisdiction of the SC is
invoked through Article 131.

1. OUTLOOK THROUGH ARTICLE 131 AND 107TH CONSTITUIONAL

AMENDMENT ACT,2023

ARTICLE 131 provides for the original jurisdiction of SC and states that the apex
court deals with the dispute between the centre and state, the centre and a state on
one side and another state on the other side and two or more states; if only the
dispute involves any question (whether of law or fact).
In the case of STATE OF WEST BENGAL v. UOI,1963, SC did not discuss the
maintainability of a suit under Article 131 but its decision to hear the case shows
that the constitution allows states the right to challenge parliamentary laws.
In the case of STATE OF KARNATKA v. UOI,1978, Justice P N Bhagwati held
that for the SC to accept a suit under Article 131, the state need not show that its
legal rights are violated, but only that the dispute involves a legal question.
In the case of STATE OF RAJASTHAN v. UOI, it was held that SC has got the
power to give any kind of relief if it is necessary to enforce the legal right of any
state on dispute if such legal right has been established by Government of India.

In the present case, the ordinance which conferred the specific discretionary
authority upon the Lieutenant Governor of Huadia, created a tension between the
State and Central Government. This shows that there was a clear violation of the
State’s Autonomy. It was also an assault to what was promised in Treaty of Magna.
There was a violation of Treaty of Magna, and the parliament of Indiana passed the
107th Constitutional Amendment Act,2023 which repealed Article 363 and proviso
to Article 131(1) of the constitution of Indiana so that the SC interpret the Treaty of
Magna.

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2. FROM THE STANDPOINT OF COLORABLE LEGISLATION

In the case of K.C. GAJAPATI NARAYAN DEO v. STATE OF ORRISA, it was

held that what is prohibited directly is prohibited indirectly also. It was based on
the phrase: “QUANDO ALIQUID PROHIBETUR EX DIRECTO
PROHIBETUR ET PER OBLIQUM”.
Government is enacting legislation under the guise of having authority even though
it does not possess any contempt authority to do so. The Judiciary has the authority
to prevent the Government from the abuse of its power.

In the present case, parliament of Indiana passed an order “The State of Huadia
Reorganisation order,2023” in order to abrogate the special status provided to SOH
under Article 371AA. Article 371AA (7) which mentions mandate to take assent of
the state legislature before abrogating the special status was also undercut by the
Parliament.

In the case of R.S. JOSHI v. AJIT MILLS, SC observed that ‘Fraud on

Constitution’ or ‘Colourable Exercise’ basically mean that the legislature is
incompetent to enact a particular law.
In the case of DC WADHWA v. STATE OF BIHAR,1987; ordinances were
promulgated and re promulgated. It is arbitrary, colourable exercise of power by the
legislation, fraud on constitutional provisions.
In the case of NAGESHWAR v. A.P.S.R.T, it was held that Colourability is bound
with incompetency and not with any evil and bad motive, if the legislature has the
power to make the laws, then the motive in making the law is irrelevant.

In the case of MAHANT MOTI DAS v. S.P. SAHI, held that the judiciary only
reviews legislation on whether it is within the competent jurisdiction or not.
In the case of STATE OF BIHAR v. MAHRAJADHIRAJA SIR KAMESHWAR
SINGH, provides the landmark judgement of colourable legislation. The court
stated about the failure to comply with the constitutional provisions may be overt
or covert. In converting non-compliance, the legislature pretends to act within its
power while not doing so. The SC held the act committed fraud on the constitution
by not providing adequate compensation.

Article 246 mentions that the decision-making power to be bifurcated between

Centre and State. The 7th Schedule in Indian Constitution mentions three list of
which State will make laws in List II i.e., State list. Parliament makes law on List I
i.e., Union List and both Centre and state make laws on List III i.e., Concurrent List.
Here, the Legislature went beyond the mandate implicitly and which will lead to
fraud on the Constitution.

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The result was that the State of Huadia was converted into a Union Territory. It
shows that there was an abuse of power and how the parliament gave birth to a
colourable legislation. The abrogation of (7) of Article 371AA is the very reason of
the above.

3. NULLIFICATION OF ARTICLE 363 AND VIOLATION OF

FUNDAMENTAL RIGHTS UNDER 19 AND ARTICLE 358 OF THE
CONSTITUION OF INDIANA

Article 363 prohibits the interference by court in any issue arisen out of as a result
of any treaties or agreement that were entered and to which government was a party.
In the present matter, the centre of dispute resolved around the Treaty of Magna.
As per Article 363, the SC was under the bar not to interpret the matter. Parliament
passed 107th Constitutional Amendment Act,2023 which repealed Article 363 but
proviso Article 131(1) of the constitution of Indiana, so that the SC can interpret
the Treaty of Magna.

In the case of UNITED PROVINCES v. GOVERNOR GENERAL IN COUNCIL,

it was held that Article 131 of the Constitution does not apply, if the other party is
a public sector corporation. In the present case it is the Union government.
Article 300 of the constitution mentions about the suits. It states that government
can sue or can be sued in the name of Union of India.

Under Article 352 of the constitution National emergency was proclaimed on the
grounds of internal disturbance only for State of Huadia. Article 352 mentions three
grounds: 1. War 2. External Aggression 3. Armed Rebellion

Earlier, in place of armed rebellion it was internal disturbance but with the 44 th
Constitutional Amendment Act armed rebellion was inserted in place of Internal
Disturbance. Article 358 provides that when national emergency is proclaimed,
FR’s are automatically suspended provided under Article 19. But it was held after
the 44th Amendment Act that only during the war and emergency FR’s are
suspended and not during armed rebellion.

In the case of MINERVA MILLS v. UOI, it was held that if the president brings
any emergency, then the judicial review of the same can be done so. Basically, the
38th amendment was undone.
44th amendment also held that internal disturbance was very wage and from now no
simple majority but special majority requires. Furthermore, it brought that the
judicial review of the emergency can be done.
In the present case, the emergency was proclaimed under Article 352 which
provides for national emergency. But the very fact that it was imposed only on the
State of Huadia itself shows that it was invalid. Furthermore, it was proclaimed on
the grounds of internal disturbance which is no more in the picture.

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In the case of MAKHAN SINGH V. STATE OF PUNJAB, it held that the

suspension of Article 19 during national emergency will be there.

In the present case the grounds for proclamation of emergency were internal
disturbance which itself was invalid and so the fundamental rights were suspended
which led to the violation of fundamental rights.

Moreover, a series of certain violations were committed by the parliament. Earlier

in 1975, when the proclamation of national emergency was held it was criticised on
the grounds that it was a politically motivated one. Further, when 44th amendment
act,1978 was passed it was done to prevent such politically motivated proclamations
of national emergency and to keep a check on power of government and the
president regarding such proclamations.
In the present case, the proclamation of national emergency was a politically
motivated one. The union government is concerned only with its power politics and
hence was violating the provisions and the enactments and also misused the
proclamation of national emergency.

Even after filing a petition in High Court, a date was set aside for the hearing, but
the session resumed and passed the ordinance which was regarding the limitation
of power of state government. It shows how the power was being misused by the
parliament.

Henceforth, in the light of the aforementioned arguments it is humbly

submitted that the jurisdiction of the Supreme Court cannot be altered during
an ongoing case.

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2. WHETHER THE BASIC STRUCTURE DOCTRINE APPLICABLE TO

THOSE CONSTITUTIONAL AMENDMENTS THAT ARE NOT MADE
UNDER ARTICLE 368 OR TO THOSE ORDINARY LAWS THAT HAVE THE
EFFECT OF AN AMENDMENT?

The counsel on behalf of the petitioner humbly submits before the Hon’ble court that
yes, the basic structure doctrine is applicable to those constitutional amendment that
are not made under Article 368 or to those ordinary laws that have the effect of an
amendment as it was held in several cases that if the ordinary laws or its provisions
violate the basic structure, then they will be unconstitutional. With the changing time
whenever there is a need to add new rights, the constitution can be amended.

1. VIEWING THE PRESENT MATTER FROM THE CONTEXT OF

ARTICLE 13 AND ARTICLE 368

Where the Article 13 states that parliament cannot make any law which violates the
Fundamental Rights or reduces the same and it talks about ordinary laws. On the
other hand, Article 368 gives parliament the power to amend the constitution.
Article 368 contains the provisions for the Amendment of the Indian Constitution.
The Constitution provides three ways for amendment.
Three Ways of Amendment:
1. Amendment By Simple Majority
2. Amendment By Special Majority
3. Amendment By Special Majority and Ratification by States

In the case of SHRI SHANKARI PRASAD v. UOI, it was alleged, inter alia, that
as Article 13(2) Prohibited making of laws abridging fundamental rights, it
prohibited such abridgement even by an amendment because an amendment was
also a law.
In the case of SAJJAN SINGH v. STATE OF RAJASTHAN, it was held that the
FR’s can also be amended. But it was overruled in the case of GOLAKNATH v.
STATE OF PUNJAB, it was held that parliament cannot abridge FR subject to
limitation and judicial review.
Moreover, through 17th CAA, it was provided that Article 13 will also be applicable
on Constitutional Amendment Act.
In the present case, even though the addition was made under Article 371AA cannot
be considered a Constitutional Amendment Act under Article 368, it is an
amendment and thus should be checked on the touchstone of the basic structure
doctrine.

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In the case of KESAVANANDA BHARTI v. STATE OF KERALA, it was held

that parliament can amend the FR but the basic structure cannot be amended.
In the present case, the ordinance that was passed had been a negative object for
people and was an assault on what was promised in TREATY OF MAGNA. It was
challenging for the people to lead their daily lives normally.

2. MISUSE OF POWER BY THE PARLIAMENT

A series of certain violations were committed by the parliament. Earlier in 1975,

when the proclamation of national emergency was held it was criticised on the
grounds that it was a politically motivated one.
In the present case, parliament has practiced the absence of power. Article
371AA(3)(a) of Annexure 2 mentions that no law made by the parliament of Indiana
shall have the effect in the SOH without the ratification and approval of the same
from the Legislative Assembly of Huadia.

Furthermore, the addition under Article 371AA violated the basic structure doctrine
as it granted autonomy to the Governor, which is a nominal head, is against the
concept of a Parliamentary Form of Government. The concept is that the PM is
the real head but here the Governor was given the authority.

In the case of WAMAN RAO v. UOI, after the basic structure doctrine, all
amendments were challenged. Court held that the judgement made in
KESVANANDA BHARTI case held on 24 April,1973 will only be applicable
prospective from the decided case i.e., in upcoming CAA will be challenged and
not retrospective.

Moreover, the imposition of limitation on fundamental rights guaranteed by Article

19 in according with Article 358 of constitution. Emergency proclamation was
made on grounds of internal disturbance which itself shows how the powers are
being misused by the Parliament as because 44th amendment inserted armed
rebellion in place of internal aggression.

Furthermore, the very fact that states that the FR can be suspended automatically
under Article 19 only when emergency is imposed on the grounds war or external
aggression under Article 358. Moreover, 42nd CAA, brought change that there was
no limitation on amending power. No judicial review was allowed to be done.

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 PETITIONER

In the case of MINERVA MILLS v. UOI, court gave three new basic structure
features:
1. Judicial review: it is a basic structure and cannot be supressed.
2. Limited Amending Power: parliament cannot expand its power. No absolute
power.
3. Harmony between PART III & PART IV.

3. APPLICABILITY OF BASIC STRUCTURE DOCTRINE ON ORDINARY

LAW AND AMENDMENT NOT MADE UNDER ARTICLE 368

The basic feature, which were declared to be part of basic structure inter alia, are:
1. Supremacy of Constitution
2. Sovereignty
3. Republican and Democratic form of Government
4. Federalism
5. Secularism
6. Separation of power
7. Independence of Judiciary
8. Judicial Review etc.

It is an illustrative list, because for determining whether a particular feature of

Constitution is a part of basic structure or not, it has to be examined in each
individual case keeping in mind the scheme of the Constitution.

Ordinary legislation means an act enacted either by the Parliament or State

Legislatures on the matter respectively enumerated under 7 th Schedule of the
Constitution. Constitution of Indiana clearly demarcates the function of the
institutions. As per Article 245(1), Parliament or State Legislature make laws,
whereas, as per Article 141, the SC declares that law to be constitutional or
unconstitutional.

In the present case, parliament passed ordinance which violated the state’s
autonomy. Moreover, it made an addition under Article 371AA which violated
the basic structure doctrine.

Parliament violated the basic structure doctrine in terms of Judicial Review and
Federalism. The very principle of Federalism provides for the distribution of
power between the centre and the state. But in the present case, although in
Article 371AA it was mentioned that any law of parliament of Indiana shall
have effect in SOH without ratification and approval of the same from the
legislative assemble of Huadia. JUDICIAL REVIEW is a tool in the hands of
Judiciary which gives judiciary the power to review the actions of executive and

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legislature. But here WRIT PETITION was filed in HC of Huadia and day was
set aside for hearing of the matter. But before that Parliament had resumed its
session and passed the ordinance which violated the concept of Parliamentary
form of Government.
For declaring any ordinary law as constitutional or unconstitutional, its
constitutional validity is generally tested on two grounds:
1. Legislative Competence
2. Violation of Fundamental Rights or any other Constitutional
Provisions.

In the present case, FR were violated of the citizens. So, the basic structure
also applies to the Ordinary law.
In the case of MADRAS BAR ASSN. v. UOI & SC ADVOCATES-ON-
RECORD ASSN. v. UOI, it was held that “if a challenge is raised to an
ordinary legislation based on one of the ‘basic features’ of Constitution, it
would be valid to do so.

Henceforth, in the light of the aforementioned arguments it is humbly submitted

that the basic structure doctrine applies to those Constitutional Amendments that
are not made under Article 368 or to those ordinary laws that have the effect of an
Amendment.

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 PETITIONER

3. WHETHER THE PROCLAMATION OF EMERGENCY UNDER ARTICLE

352 OF THE CONSTITUTION OF INDIANA IN HUADIA, IS
CONSTITUTIONALLY TENABLE?

The counsel on behalf of the petitioner humbly submits before the Hon’ble court that
no, the proclamation of emergency under Article 352 of the constitution of Indiana in
Huadia is not constitutionally tenable.

Lack of consultation: the presence of a constitutional or governance arrangement

wherein decisions related to Huadia are to be made in accordance with the will of the
people. key elements:

1. Monarch's Commitment: The magna treaty indicates that the monarch has
committed to ensuring that decisions concerning Huadia will be made in accordance
with the will of the people residing there. This implies a recognition of the importance
of popular opinion or consensus in matters pertaining to Huadia.

2. Treaty Stipulation: The commitment is substantiated by the terms of a treaty. A

legally binding agreement between sovereign entities, often between countries. In this
context, it appears to be an agreement outlining the governance structure and decision-
making processes for Huadia.

3. Body of Representatives: The treaty establishes the existence of a body of

representatives of the state. This body is tasked with reflecting the will of the people of
Huadia. Representatives play a crucial role in democratic or participatory governance,
acting as intermediaries between the government and the citizens.

4.Advisory Role: The representatives are designated to aid and advise the Head of the
Country. This suggests a consultative and advisory role for the representatives,
indicating that their input is considered valuable in the decision-making process.

• Overall, the treaty describes a governance framework where the monarch has made a
commitment to ensuring the involvement of the people of Huadia in decision-making.
The establishment of a representative body and the acknowledgment of its advisory
function underscore the intent to incorporate the will of the people into the governance
structure. This type of arrangement aligns with principles of participatory governance
and democratic decision-making, where the voices and interests of the populace are
taken into consideration in shaping policies and decisions. Violation of parliamentary
form of government: This case outlines the petitioner's argument particularly in the
context of constitutional provisions in Indiana key points:

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 PETITIONER

1. Article 371AA Addition: The petitioner argues that the addition made under
Article 371AA is not a constitutional amendment under Article 368, of the Indiana
Constitution. Article 371AA is a special provision that provides for the special
status of the National Capital Territory of Indiana.

2. Basic Structure Doctrine: The petitioner contends that even though the addition is
not considered a constitutional amendment under Article 368, it is still an amendment
and should be examined in light of the Basic Structure Doctrine. The Basic Structure
Doctrine is a legal principle established by the Indiana Supreme Court that certain
features of the Constitution are so fundamental that they cannot be altered or destroyed
through amendments.

3. Violation of Basic Structure Doctrine: The petitioner argues that the Act
(presumably the one related to the addition under Article 371AA) violates the Basic
Structure Doctrine. In this case, the specific violation is said to be the grant of autonomy
to the Governor, who is a nominal head. The petitioner claims that such autonomy goes
against the concept of a Parliamentary Form of Government.

4.Magna treaty: In the event of a difference of opinion between the Lieutenant

Governor and the Council of Ministers of the State, the matter is to be referred to the
President for resolution. However, the later an exception: the Lieutenant Governor can
act on his own in the case of a grave emergency without waiting for the President's
decision. The requirement for the ratification of the Lieutenant Governor's appointment
by the State Legislative Assembly underscores a form of legislative oversight or
involvement in the appointment process, contributing to the democratic checks and
balances in the governance structure of Huadia.
Moreover, in the present case proclamation of national emergency was invalid as it was
on the grounds of internal disturbance and was only imposed on the State of Huadia.

• The argument seems to revolve around the constitutional validity of the Act in
question, with the petitioner asserting that the provisions added under Article 371AA,
while not a formal constitutional amendment, should still be subject to scrutiny based
on the Basic Structure Doctrine. The contention is that the autonomy granted to the
Governor, being a nominal head, is inconsistent with the foundational principles of a
Parliamentary Form of Government.

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 PETITIONER

CASE LAWS:

1. SR Bommai v. Union of India and others: This case is a landmark in the history of
the Indian Constitution. The Supreme Court laid down the paradigm and limitations
within which Article 356 was to operate. It held that the power under Article 356 is a
conditioned power and it can be used only when the conditions specified in the Article
are existent.

2. Prem Nath Kaul v Union of India: The Supreme Court upheld the Act affirming
that the Maharaja possessed the legislative powers required to enact it. The fact
situation had to do with circumstances that occurred prior to the Constitution of
Jammu and Kashmir coming into force in 1956. The Constituent Assembly had
been dissolved in 1957. Yet, the Bench made observations on the role of the
Constituent Assembly of Jammu and Kashmir.

The ruling stated that “[Indian] Constitution makers attached great

importance to the final decision of the Constituent Assembly [of Jammu and
Kashmir]” ensuring that any “exercise of powers conferred to the Parliament
and the President” is “conditional on the final approval” of the Constituent
Assembly. The judgement also remarked on the powers of the President to
abrogate Article 370. It stated that Article 370(3) “authorises the President
to declare by a public notification that this article shall cease to be operative
or shall be operative only with specified exceptions or modifications, but
this power can be exercised by the President only if the Constituent
Assembly of the State makes a recommendation in that behalf.”

Determination of constitutionality:

The statement that the ground for the proclamation of emergency under Article 352
was unconstitutional suggests a legal argument challenging the basis for declaring an
emergency. Article 352 of the Indian Constitution pertains to the proclamation of a state
of emergency by the President in certain situations. If there was a claim that the grounds
invoked for the proclamation of emergency under Article 352 were considered
unconstitutional, it would likely involve legal challenges and arguments challenging
the validity of the emergency declaration.
The grounds for declaring an emergency under Article 352 include "war" or "external
aggression" or "armed rebellion." It's crucial to note that legal interpretations and
challenges are complex, and the determination of constitutionality often falls within the
purview of the judiciary. 70th Constitutional Amendment It outlines a significant clause
introduced by the 70th Constitutional Amendment of 1992, specifically related to the
State of Huadia. the key points:

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 PETITIONER

1. Clause Regarding Amendment Procedure: The 70th Constitutional

Amendment, 1992, added a clause stating that if any provision is made in regard to the
State of Huadia or if any change is made under Article 371AA, it shall not be considered
an amendment made under Article 368 of the Constitution.

2. Deemed as 'Supplementary Provision’: The mentioned provisions related to

Huadia are to be deemed as 'supplementary provisions,' implying that they are not to be
treated as amendments to the Constitution under the regular amendment procedure
outlined in Article 368.

3. Background and Rationale: The case suggests that this provision was introduced
because the Supreme Court of Indiana had declared 'federalism' as one of the basic
features of the Constitution. It emphasizes that although federalism is a fundamental
feature, the State of Huadia cannot be granted the same autonomy as other federal
states.

4.Application of Basic Structure Doctrine: The case notes that the concept of basic
structure is applicable only on constitutional amendments. This suggests a distinction
between regular constitutional amendments and the specific provisions related to the
State of Huadia.

• The intent behind this clause seems to be addressing a constitutional uniqueness

regarding the State of Huadia. It acknowledges the principle of federalism while making
a distinction for Huadia, perhaps due to specific considerations or characteristics that
set it apart from other federal states.

Henceforth, in the light of the aforementioned arguments it is humbly submitted

that Supreme Court shall declare that the proclamation of emergency under
Article 352 is constitutionally not tenable.

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 PETITIONER

4. IS THE ABROGATION OF THE SPECIAL STATUS OF THE STATE OF

HUADIA, THEREBY CAUSING A FUNDAMENTAL CONSTITUTIONAL
ALTERATION, CONSTITUTIONALLY SUSTAINABLE OR FRAUGHT
WITH CONSTITUTIONAL MISCHIEF?

The counsel on behalf of the petitioner humbly submits before the Hon’ble court that
the abrogation of special status of the State of Huadia causing constitutional mischief.
As, declaring a state of emergency in Huadia would imply a serious situation
threatening the security or stability of the region. This carries the potential for misuse
of power and overriding usual safeguards for regional autonomy. Hence, declaring a
state of emergency in Huadia does indeed carry significant implications.

1. State of Emergency: Declaring a state of emergency in Huadia would imply a

serious situation threatening the security or stability of the region. This carries the
potential for misuse of power and overriding usual safeguards for regional
autonomy.

Declaring a state of emergency in Huadia does indeed carry significant

implications, including:

Potential for Misuse of Power: Emergencies can be misused for various purposes,
including:
• Suppressing dissent and silencing opposition voices.
• Justifying limitations on civil liberties and human rights.
• Consolidating power in the hands of the central government at the expense of
regional autonomy.

Erosion of Safeguards for Regional Autonomy: During an emergency, the central

government often acquires increased power, which can come at the cost of
weakening safeguards meant to protect the autonomy of a region like Huadia. This
can weaken democratic principles and lead to feelings of disempowerment and
resentment within the region.

Need for Careful Justification and Oversight: It’s crucial for any state of
emergency to be declared only under exceptional circumstances and with clear
justifications. Additionally, strong oversight mechanisms are essential to ensure
that emergency powers are used proportionately, demonstrably, and for a limited
period.

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 PETITIONER

Here are some additional points to consider:

The specific powers granted to the central government during a state of emergency
will vary depending on the constitution and legal framework of the country.
• The duration of the emergency should be clearly defined and subject to periodic
review to prevent its misuse or extension beyond what’s strictly necessary.
• International human rights law also sets standards for how states should handle
emergencies, including the need to uphold fundamental rights even under
exceptional circumstances.

2.Parliamentary Action and Article 371AA: The “State of Huadia

Reorganization Order, 2023” revokes a provision similar to Article 370, it would
severely curtail Huadia’s autonomy and promises made via its own constitutional
article. The scenario involving the “State of Huadia Reorganization Order,
2023” revoking a provision similar to Article 370 of the Indian Constitution raises
significant concerns about curtailed autonomy and broken promises, potentially
leading to several consequences:

Weakened Autonomy:
• Self-Governance: Revoking special provisions like Article 370 can significantly
reduce a region’s autonomy in areas like:

• Legislative powers to make laws specific to the region’s needs and context.
• Executive powers to administer local affairs and manage resources
• Judicial powers to have its own judicial system or specific courts handling
regional matters.
• Cultural and Identity Concerns: Such actions can be seen as imposing the
central government’s will and potentially disregarding the cultural identity and
unique way of life of the people in Huadia.

Broken Promises:
• Loss of Trust: Revoking special status granted through a constitutional article can
be perceived as a betrayal of trust and a violation of the commitments made to the
people of Huadia. This can lead to feelings of resentment and alienation towards
the central government.
• Uncertain Future: The abrogation of special status can create uncertainty about
the future of Huadia’s rights and protections. This can hinder economic
development, social stability, and overall progress in the region.

Potential for Conflict:

• Increased Tensions: Such actions can exacerbate existing tensions between the
central government and the people of Huadia, potentially leading to social unrest
and instability.

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 PETITIONER

• Loss of Legitimacy: The central government’s actions might be perceived as

illegitimate if seen as violating the constitution or disregarding the rights of the
people in Huadia. This can undermine the government’s authority and legitimacy
in the region.

3.Undercutting Mandate: The bypassing of the requirement to obtain consent

from Head’s state legislature, as per the “Article 371AA,” is deeply problematic. It
suggests the central government is undermining the very provisions intended to
protect the state’s rights and unique status.

Bypassing the mandate to obtain consent from the State Legislature, especially
when a provision like the Article 371AA explicitly requires it, raises serious red
flags. Here’s why it’s so problematic:

1. Disregard for Constitutional Provisions:

• Such an action demonstrates a blatant disregard for the fundamental structure
of the constitution and the rule of law. This can create a dangerous precedent
where constitutional procedures are selectively ignored or circumvented for
political convenience.
• It disrespects the very purpose of Article 371AA which protects regional
interests and ensures that any significant change to the state’s special status is
made with the consent of the people’s elected representatives.
2. Erosion of Federalism:
• India’s federal structure is designed to strike a balance between national
interests and the rights of individual states. When the central government
bypasses established procedures, it undermines this balance of power, erodes
trust in the federal system, and can be seen as a power grab with little regard for
state autonomy.

3. Disregard for Democratic Representation:

• The mandate for consent from the state legislature is a crucial democratic
safeguard. It gives the people of Huadia a voice in crucial decisions impacting
their lives and future. Bypassing this consent means overriding the will of the
people as expressed by their elected representatives.

4. Potential for Backlash and Unrest:

• Actions of this nature can be perceived as an attack on the state’s autonomy
and rights, leading to widespread dissent and potentially even social unrest. This
can escalate into serious security challenges for the central government to
manage.

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5. Setting a Dangerous Precedent:

• Once such manoeuvres become normalized, they create a dangerous precedent
for other states and further erosion of federal power structures.

4.Invoking Article 353: If “Article 353” grants the central government

sweeping powers during an emergency, it underscores the potential for abuse.
A true emergency might justify extraordinary measures, but the potential for
overreach and eroding federalism is a serious concern.

Constitutional Implications:
• Violation of Federalism: Bypassing the state legislature and revoking the
special status granted by Article 371AA could be a direct violation of India’s
federal principles, where power is shared between central and state
governments.
• Weakening Democratic Principles: Ignoring the requirement for the state
legislature’s assent undermines democratic safeguards and could be interpreted
as an authoritarian move.
• Precedents of Power Dynamics: Such scenarios raise questions about the
limits of central government power and the potential for future actions in other
states if these actions go unchallenged.

The Shah Commission, formally known as the Commission of Inquiry into

the Emergency, was appointed by the Janata Party government in 1977 to
investigate the excesses committed during the Emergency declared in India
from 1975 to 1977.

Here’s a summary of the key points regarding the Shah Commission report:
Context:
• Indira Gandhi’s Election Case: In 1975, Indira Gandhi, then Prime Minister,
faced legal challenges regarding electoral malpractice during her 1971 election
campaign.
• Declaration of Emergency: Amidst this legal battle, Indira Gandhi
controversially imposed a nationwide Emergency citing internal disturbances. •
Concerns about Abuse of Power: The Emergency was marked by concerns
about widespread human rights violations, suppression of dissent, and misuse
of government power.
The Commission and its Findings:
• Establishment: The Janata Party, which defeated Indira Gandhi’s party in the
1977 elections, set up the Shah Commission under Justice J.C. Shah, a retired
Chief Justice of India.

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• Investigative Scope: The commission was tasked with investigating the

circumstances leading to the Emergency and the actions taken by the
government during that period, focusing on:
• Misuse of authority and power
• Human rights violations
• Press censorship
• Detention without trial
• Forced sterilization
• Findings: The commission submitted three reports:
• First Interim Report (March 1978): Focused on the lead-up to the
Emergency and curbs on the press.
• Second Interim Report (August 1978): Examined police actions and the role
of Sanjay Gandhi, Indira Gandhi’s son, in a controversial incident.
• Final Report (August 1978): Covered prison conditions, torture, and family
planning abuses.

• Key Findings: The reports were particularly critical of:

• Decision to impose the Emergency: The commission concluded that the
government failed to present a genuine justification for the Emergency.
• Indira Gandhi and associates: The reports pointed towards Indira Gandhi
and her son, Sanjay Gandhi, being involved in certain abuses of power during
the Emergency.

• Human rights violations: The commission documented various human rights

violations, including arbitrary arrests, torture, and forced sterilization.

Legacy and Impact:

• Public Awareness: The reports exposed the extent of the government’s
actions during the Emergency, raising public awareness and contributing to a
sense of accountability.
• Limited Action: While the reports made strong recommendations, limited
concrete legal action was taken against individuals named in the report.
• Historical Significance: The Shah Commission Report remains an important
historical document, providing a valuable account of the Emergency and its
consequences.

Henceforth, in the light of the aforementioned arguments it is humbly submitted

that Supreme Court shall declare the abrogation of special status of the State of
Huadia as a Constitutional Mischief.

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 PETITIONER

PRAYER

Wherefore in the light of the above arguments, precedents, provisions and in the interest of
justice, it is humbly prayed before this hon'ble court to declare/adjudge that:

 The proclamation of emergency is invalid.

 The state of Huadia was originally a state and not a union territory and there has been
violation of the treaty of magna.

 The abrogation of special status of state of Huadia is a constitutional mischief.

AND/OR

Pass any other order that this hon'ble court may deem fit in the interest of justice,
equity and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd/-
Counsels for petitioner

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