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TEAM CODE: RNBGU025

2ND RNBGU NATIONAL MOOT COURT COMPETITION, 2018

BEFORE THE HON’BLE SUPREME COURT OF SOUTH KINGONDOM

WRIT JURISDICTION

IN THE MATTER OF:

A CITIZEN OF SOUTH KINGONDOM……………………………………… PETITIONER

V.

UNION OF SOUTH KINGONDOM AND ORS…………..……………...… RESPONDENTS

PETITIONER: 1. A citizen of South Kingondom

RESPONDENTS: 1. Union of South Kingondom


2. State of Jangasam
3. Election Commission of South Kingondom

ON SUBMISSION TO HON’BLE SUPREME COURT OF SOUTH KINGONDOM


UNDER ARTICLE 32 OF THE CONSTITUTION OF SOUTH KINGONDOM

WRITTEN SUBMISSIONS ON THE BEHALF OF RESPONDENTS


COUNSEL APPEARING ON BEHALF OF RESPONDENTS
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS...................................................................................................IV

INDEX OF AUTHORITIES.....................................................................................................V

STATEMENT OF JURISDICTION.........................................................................................X

STATEMENT OF FACTS ...................................................................................................... XI

STATEMENT OF ISSUES ..................................................................................................... XII

SUMMARY OF ARGUMENTS ............................................................................................. XIV

ARGUMENTS ADVANCED....................................................................................................1-17

[1] Whether or not in the facts and circumstances of the present case the petition is barred by
delay and laches…………………………..……………………………………………………1

[1.1] Article 32 can only be invoked on violation of FRs…………………………………..1

[1.1.1] Locus Standi and Article 32 ………………………………………………………...2

[1.2] Legislative intent or policy decision cannot be challenged in Art.32…………………3

[1.2.1] General Rule that Courts doesn’t interfere in policy decision………………………3

[1.2.2] Legislative intent of the Law makers………………………………………………..4

[1.3] Applicability of doctrine of laches on writ petitions…………………………………..4

[2] Whether or not in the facts and circumstances of the present case Section 6A of Citizenship
(amendment)Act,1985 violates Article 325 and Article 326 of the Constitution of South
Kingondom………………………………………………………………………………………5

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[2.1] Section 6A does not violate Art. 325 of the Constitution of South Kingondom……………5

[2.1.1] Objects and Reasons of Incorporation of Article 325. …………………………………...5

[2.1.2] Objects and reasons of Section 6A……………………………………………………….6

[2.2] Article 326 of the Constitution of South Kingondom……………………………………...6

[3] Whether or not in the facts and circumstance of the present case Sec. 6A is violating
Fundamental Rights enshrined in Part III of the Constitution of South
Kingondom……………………………………………………………………………….……….7

[3.1] State enjoys legislative competence in the instant case…………………………………..8

[3.2] Sec. 6A of Citizenship Amend. Act 1985, consequently, is not a colourable legislation….8

[3.3]Sec. 6A of Citizenship Amend. Act 1985, does not violate right to life and personal liberty
provided by the Cons. …………………………………………………………………………….8

[3.3.1]Sec. 6A of Citizenship (Amend.) Act 1985 brought by the Govt. is in accordance with,
procedure established by law provided under Art. 21 of the Cons. ………………………………9

[3.3.2]Jangasam accord of the govt. is in view of compelling state interest ……………………10

[3.4] Sec. 6A does not violate Art. 14 of the Cons. of S.K. …………………………………...10

[3.4.1] Sec. 6A satisfies the test of reasonable classification …………………………………11

[3.4.2] Sec. 6a of Citizenship Amend. Act satisfies the test of arbitrariness……………………12

[3.5]Sec. 6A is not violating Art. 29 of the Cons. ………………………………………………12

[3.5.1] Reasonable restrictions can be imposed on fundamental rights to give effect to directive
principles of state policy………………………………………………………………………..13

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[4] Whether or not in the facts and circumstances of the present case there is a necessity of issuing
appropriate directions to the union of South Kingondom and state of Jangasam to ensure effective steps
taken to prevent illegal access to the country and to detect and deport illegal
migrants………………………………………………………………………………………………….14

[4.1] Judiciary cannot encroach into the function of executive and legislature…………………………14

[4.1.2] Doctrine of separation of powers…………………………………………………………………14

[4.2] Violation of international conventions and customary principals of international law……………..15

[4.2.1] Principle of Non- Refoulment……………………………………………………………….…...15

PRAYER………………………………………………………………………………………………XVI

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LIST OF ABBREVIATIONS

¶ PARAGRAPH

AIR ALL INDIA REPORTER

Amend. AMENDMENT

AP ANDHRA PRADESH

Art. ARTICLE

Bom BOMBAY

Cal CALCUTTA

Cons. CONSTITUTION

DPSP DIRECTIVE PRINCIPLES OF STATE POLICY

Govt. GOVERNMENT

HC HIGH COURT

Kar. KARNATAKA

N.K. NORTH KINGONDOM

Sec. SECTION

SC SUPREME COURT

SCC SUPREME COURT CASES

Supp. SUPPLEMENTARY

S.K. SOUTH KINGONDOM

u/s UNDER SECTION

UOI UNION OF INDIA


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US UNITED STATES

UK UNITED KINGDOMS

UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS

Hon’ble HONOURABLE

V VERSUS

FRs FUNDAMNETAL RIGHTS

Sec. SECTION

WB WEST BENGAL

Co. COMPANY

INDEX OF AUTHORITIES

LEGISLATIONS
S.NO. PARTICULARS
1 Constitution of India 1950
2 Citizenship Act 1955
3 Citizenship Amendment Act,1985
4. Foreigners act, 1946
5 Foreigners (Tribunals) Order, 1964
6. Immigrants (Expulsion from Jangasam), Act 1950
7. Illegal Migrants (Determination by Tribunal) 1983
TABLE OF CASES
1. A.N.Roy Commissioner of Police v. Suresh Sham Singh, AIR 2006 SC 2677
2. Akhil Bharat Goseva Sangh (3) v. State of A.P., (2006) 4 SCC 162.
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3. Ameeroonissa Begum v. Mehbub Begum, AIR1953 SC


4. Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539
5. Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61.
6. Bijoya Lakshmi Cotton Mills v. State of West Bengal, AIR 1967 SC 1145.
7. Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191
8. Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
9. Chambers v Florida 309 U.S. 227 (1940)
10. Common Cause v. Union of India AIR 2001 Delhi 93
11. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
12. Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344
13. Gobind v. State of Madhya Pradesh & Anr. (1975) 2 SCC 148
14. Hindi Hitrashak Samiti v. Union of India, AIR 1990 SC 851:1990 (2) SCC 352
15. J.K Industries Limited v. Chief Inspectors of Factories and Boilers (1996) 6 SCC 665
16. Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC 691.
17. K. Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44: AIR 1994 SC 55
18. K. S. Puttaswamy and Anr. v. Union of S.K. and Ors. AIR 2015 SC 3081.
19. Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907
20. Kanhaiya Lal Sethia Vs. UOI (1997) 6 SCC 573
21. Kedarnath Bajoria v. State of West Bengal, AIR 1953 SC 404;
22. Ktaer Abbas Habib Al Qutaifi and Anr v. Union Of India And Ors. on 12 October, 1998
23. Ku.Sonia Bhatia v. State of U.P., and others 1981 (2) SCC 585, AIR 1981 SC 1274
24. Lal Babu Hussein and Ors.v.Electoral Registration Officer and Ors. AIR1995SC1189
25. M.P.V. Sundararamier & Co. v. State of A.P., AIR 1958 SC 468,.
26. Maneka Gandhi v. Union of S.K., AIR 1978 SC 597
27. Mihir Alias Bhikari Chauhan Sahu v. State, 1992 Cri LJ 488.
28. Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748.
29. Naga People’s Movement v. Union of S.K., (1998) 2 SCC 109
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30. Nairin v. University of St. Andrews 1 (1994) 2 SCC 691, 714, para 54: (1994) 1 SCR
31. Namit Sharma v. Union of S.K., (2013) 1 SCC 745.
32. Noorunnisa begum v. District Collector, Khammam, 2001
33. P. Ramachandra Rao v. State of Karnataka 16 April, 2002
34. P. Ramachandra Rao v. State of Karnataka AIR 196B SC 1234
35. People’s Union for Civil Liberties v. Union of S.K., AIR 1991 SC 207
36. Praveen singh v. State of Punjab,(2000) 8 SCC 633
37. Premium Granites v. State of T.N (1994) 2 SCC 691: (1994) 1 SCR 579
38. R.C. Poudyal v. Union of India, AIR1993 SC 1804
39. Rabindranath Bose & Ors. V. Union of India & Ors. (1970) 1 SCC 84
40. Ramji Lal v, IT Officer,1951 SCR 127
41. Ramlila Maidan Incident v. Home Secretary, Union of S.K., (2012) 5 SCC.
42. Ramrao v. All S.K. Backward Class Bank Employees Welfare Assn. (2004) 2 SCC
43. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
44. Sanjeev Coke Mfg. Co. v. Bharat Coal Ltd., AIR 1983 SC 239.
45. Sharda v. Dharam Pal, (2003) 4 SCC 493;
46. Sharma Transport v. Govt. of A.P., AIR 2002 SC 322
47. Simranjit Singh Mann vs Union of India and Another 1992 AIR 1993 SC 280, 1993
48. Smt. Indira Gandhi v. Raj Narain, AIR1975 SC2 299
49. State of Bihar v. Kameshwar Singh, AIR 1952 SC 252,
50. State of Arunachal Pradesh v. Khudi Ram Chakma,1994 Supp (1) SCC 615
51. State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 SCC 453.
52. Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1
53. Tilokchand Motichand v. H.B. Munshi ,(1969)1SCC 110
54. Ugar Sugar Works Ltd. vs. Delhi Administration and others, (2001) 3 SCC 635
55. United States v. Carolene Products, 304 U.S. 144 (1938).

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BOOKS
1. D. D. Basu Commentary on The Constitution of India, (8th ed., Lexis Nexis Butterworth Wadhwa
Publications, Nagpur, 2008
2. H .M. Seervai, Constitutional Law of India, (4th ed., Universal Law Publishing, New Delhi).
3. Constitution of India by J.N.Pandey (52nd Edition, Central Law Agency)
4. Human Rights by Justice Palok Basu (Modern Law Publications.)
5. Law of Foreigners Citizenship and Passports, by Gurbax Singh,2003
6. ALL INDIA REPORTER 1975Delhi168
7. ALL INDIA REPORTER 1993 Supreme Court,1804
8. ALL INDIA REPORTER 1965 Supreme Court 183
9. ALL INDIA REPORTER 1989 Supreme Court 549

ARTICLES
1. Convention and protocol relating to the status of refugees,Resolution 2198 (XXI) adopted by UN
General Assembly
2. Constituent Assembly Debates on Minority Rights, by Dr. M.Mohibul Haque, Assistant Professor
on Political Science, AMU Aligarh
3. Citizenship (Amendment) Bill 2016.:-A Critique Indian Journal of Research, Vol. 6, issue:2 ,
February,2016
4. Procedure Established by Law, Constituent Assembly debate

INTERNATIONAL INSTRUMENTS
1. Art. 12, Universal Declaration of Human Rights, 1947 (Adopted on December 10, 1948)
2. Art. 9, International Convention on Civil and Political Rights (Adopted by United Nations General
Assembly on December 16, 1966)

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Web Resources
Serial No Title Web Address
1 Manupatra www.manupatra.co.in/
2 Lexis Nexis www.lexisnexis.co.in/
3 Live Law www.livelaw.in/
4 SCC Online www.scconline.in/
5 The Wire www.thewire.in/
6 Calcutta High Court www.calcuttahighcourt.nic.in/

Legal Dictionaries
Serial No Title
1 Merriam-Webster's Law Dictionary: Legal Terms in Plain English
2 Dictionary of Law - Oxford Reference
3 Black's Law Dictionary

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STATEMENT OF JURISDICTION

It is humbly submitted that petitioners has approached this Hon’ble Supreme Court under Article
32 of the Constitution of South Kingondom.

The respondents have appeared to the Hon’ble Supreme Court of South Kingondom in response
to the petitions filed by the petitioner.

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STATEMENT OF FACTS

BRIEF HISTORY OF KINGONDOM


An event happened about 100 years ago in a sovereign democratic country- Kingondom; which
permanently changed the whole feature of one of its province Jangasm. The whole structure of
Jangasamese culture has been destroyed by the invasion of a vast group of land hungry immigrants
mostly Muslims from the districts of an adjoining Topdum. To cope with situation the government
of Kingondom enacted Foreigners Act of 1946, which placed burden of proof upon such person
that whether such person is or is not a foreigner.
About 70 years ago, the state of Kingondom was partitioned into two independent sovereign states
namely- South Kingondom and North Kingondom. Topdum earlier a province of Kingondom now
is a part of North Kingondom. And Jangasm is now part of South Kingondom.
A new constitution came into force in South Kingondom and the date of 19th July, 1948 became
baseline for such persons as referred to in Article 36 for being citizens of South Kingondom.
YEAR 1950
South Kingondom enacted the Immigrants (Expulsion from Jangasm) Act, 1950 to protect the
indigenous inhabitants of Jangasm. Because the large migration was disturbing the economy of its
province also it was giving rise to a serious law and order problem.
YEAR 1951
During the census of 1951, a National Register of Citizens was prepared under directive of
Ministry of Home Affairs containing information village wise of each and every person
enumerated therein.
YEAR 1948-1971
Between 1948 to 1971, there were large scale migrations from North Kingondom to Jangasm. The
Parliament of South Kingondom enacted the Illegal Migrants (Determination by Tribunal) 1983.
The said act placed the burden of proof to prove such person is or is not a foreigner on the State.
This act was made applicable only to Jangasm and was expected to be a measure which will speed
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up the determination of illegal migrants in the state of Jangasm with a view to their deportation.
YEAR 1985
The Parliament of South Kingondom inserted a new section “6A” in its Citizenship Act in 1985
relating to citizenship of persons in Jangasm. And the constitutional validity of the said section is
in question in the present petition.
CURRENT SCENARIO OF SOUTH KINGONDOM
The large scale migration from North Kingondom became dangerous for the people of Jangasm
and more for the Nation as a whole. The result of population movement from North Kingondom
to Jangasm is that the indigenous people of the Jangasm reduced to minority in their home state.
Their cultural survival is in jeopardy adding to this their political control is weakened and
employment opportunities are undermined. The influx of illegal migrants is turning districts of
Jangasm into a Muslim majority region. Also it will only be a matter of time when a demand for
merger of Jangasm with North Kingondom will be made by the international Islamic
fundamentalist.
A writ petition was filed by a citizen of South Kingondom challenging the constitutional validity
of the IMDT Act 1983 and the rules made thereunder. The Supreme Court of South Kingondom
declared 1983 Act and the rules made thereunder as violative of Article 355 and Article 14 of the
Constitution of South Kingondom and the said Act was struck down.
PRESENT PETITION
Now the Immigrants (Expulsion from Jangasm) Act of 1950 together with The Foreigners act 1946
and the Foreigners Tribunal Order of 1964 are the tools in the hands Government to do the job of
detecting illegal migrants.
In the year 2012 and 2014 large scale riots took place in Jangasm resulting in the deaths of a
large number of persons. It is in this background present writ petition is filed.

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ISSUES RAISED

ISSUE 1
WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE
THE PETITION IS BARRED BY DELAY AND LACHES?

ISSUE 2
WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE
SECTION 6A OF CITIZENSHIP (AMENDMENT) ACT 1985 VIOLATES ARTICLE 325 AND
ARTICLE 326 OF THE CONSTITUTION OF SOUTH KINGONDOM?

ISSUE 3
WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE
SECTION 6A OF CITIZENSHIP (AMENDMENT) ACT 1985 VIOLATES ARTICLE 21,29,14
AND ARTICLE 355 OF THE CONSTITUTION OF SOUTH KINGONDOM?

ISSUE 4
WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE
THERE IS A NECESSITY OF ISSUING APPROPRIATE DIRECTIONS TO THE UNION AND
STATE OF JANGASAM TO ENSURE EFFECTIVE STEPS TAKEN TO PREVENT ILLEGAL
ACCESS TO THE COUNTRY AND TO DETECT AND DEPORT ILLEGAL MIGRANTS??

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SUMMARY OF ARGUMENTS

I. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE


PRESENTCASE THE PETITION IS BARRED BY DELAY AND LACHES?
It is humbly submitted before the Hon’ble court that the present petition cannot be allowed as it
has no locus Standi. It is pertinent to mention that violation of fundamental right is sine qua non
for invoking Article 32 of the Constitution. But the same ground does not exist in the present case.
Further the judicial intervention is unconstitutional step in as much as the issue of policy making
is concerned in the context of present case. It is also pertinent to consider the legislative intent.
Therefore the petition is barred by the delay and laches.

II. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE


PRESENT CASE SECTION 6A OF CITIZENSHIP (AMENDMENT) ACT 1985
VIOLATES ARTICLE 325 AND ARTICLE 326 OF THE CONSTITUTION OF
SOUTH KINGONDOM?
It is humbly submitted before the Hon’ble court that Section 6A of the Citizenship (Amendment)
Act of 1985 does not violate Article 325 and 326 of the Constitution of South Kingondom as it
comply with the objective of the Article and also with the reason of incorporation in the
Constitution. The separate electoral roll is not the matter within the intent of section 6A of
Citizenship (Amendment) Act and hence it cannot be said be violative in nature. Further the object
and reason of section 6A is not inconsistent with any provision of the Part III of the Constitution.

III. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCE OF THE


PRESENT CASE SEC.6A IS VIOLATING FUNDAMENTAL RIGHTS
ENSHRINED IN PART III OF THE CONS. OF S.K.?
It is humbly submitted before the Hon’ble court that the Section 6A of Citizenship (Amendment)
Act, 1985 is not violative of the Part III of the Constitution as it has been enacted as result of
legislative competencies. It is pertinent to mention that the legislation in the present case is not of
the nature of colorable legislation and hence the legislative competencies should be allowed to be
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enjoyed. It is also need to discuss that the section does not violate Article 14, 21 and 29 as it does
not allow any kind of encroachment in respect of fundamental rights of the citizens. It complies
with the fundamental principle of due procedure of law envisaged under Article 21 of the
Constitution and thus does not violate the Fundamental Right enshrined in part III of the
Constitution

IV. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE


PRESENT CASE THERE IS A NECESSITY OF ISSUING APPROPRIATE
DIRECTIONS TO THE UNION OF SOUTH KINGODOM AND STATE OF
JANGASAM TO ENSURE EFFECTIVE STEPS TAKEN TO PREVENT
ILLEGAL ACCESS TO THE COUNTRY AND TO DETECT AND DEPORT
ILLEGAL MIGRANTS??
It is most respectfully submitted that the present case requires no need of issuance of appropriate
direction to the Union of South Kingdom and State of Jangasam regarding prevention of illegal
immigrant as such step would make case of judicial encroachment on the function of legislature.
The legislature has power to make law regarding the matter in issue and the attempt is being made
in that direction. Further, such direction would be inconsistent with the Doctrine of Separation
power as envisaged in the Constitution of South Kingondom. Taking cognizance of the direction
issued by Hon’ble court, such direction would also stand in violation of various international
conventions which the Union of South kingdom has to comply with under Article 51 as immediate
deportation will have to be effected. The Union of South Kingdom has to comply with the Principle
of Non-refoulment and consider the right of stateless people under international convention and
UDHR. Thus taking aforesaid argument into consideration, there appears no necessity of issuance
of direction by judicial and judicial intervention.

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ARGUMENT ADVANCED

I. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT


CASE THE PETITION IS BARRED BY DELAY AND LACHES?
It is humbly submitted before this Hon’ble Supreme Court of South Kingondom that the present petition
challenging the constitutional validity of Section 6A of the Citizenship (Amendment) Act, 1985 is barred
by delay and laches.

[1.1] ARTICLE 32 CAN ONLY BE INVOKED ON VIOLATION OF FRS.

1. No action lies in the Supreme Court under Art.32 unless there is an infringement of a Fundamental
Right,1 as the Supreme Court has previously emphasized that “The violation of Fundamental Right
is the sine qua non of the exercise of the right conferred by Art. 32.”2 In the present case the
petitioner who is a citizen of Jangasam and none of his fundamental rights are violated. Therefore
he has no right to approach this Hon’ble court under Article 32.3
2. In addition to this, a person acquires a locus standi, when he has to have a personal or individual
right which has been violated or threatened to be violated.4 Since, no right of petitioner has been
infringed, he has no locus standi before the Court. This Hon’ble Court has itself imposed a self-
restraint in its own wisdom on the exercise of jurisdiction under Art. 32 where the party invoking
the jurisdiction has an effective adequate alternative remedy in the form of Art. 226 of the
Constitution, although this Rule is a Rule of convenience and discretion rather than a Rule of law.5
But, where writ petition is challenging the Constitutional validity of any provision, then the
petitioner should file writ petition before High Court under Art. 226 of the Constitution.6
3. As stated above, Art.32 can be invoked only when there is an infringement of a Fundamental Right.
The Supreme Court has laid emphasis on this aspect of Art.32 as follows:“In order to establish the
violation of Fundamental Right, the court has to consider the direct and inevitable consequences
of the action, which is sought to be remedied or the guarantee of which is sought to be enforced”7.
1

1
Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539.
2 Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344
3 Moot Proposition, Pg. No. 09, ¶13
4 Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
5 Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748.
6State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 SCC 453.
7 Hindi Hitrashak Samiti v. Union of India, AIR 1990 SC 851:1990 (2) SCC 352
MEMORIAL ON THE BEHALF OF RESPONDENTS

4. Moreover, in order to invoke the jurisdiction under Art. 32 of the Constitution to approach this
Court directly, it has to be shown by the petitioner as to why the High Court has not been
approached, could not be approached or it is futile to approach the High Court. Unless satisfactory
reasons are indicated in this regard, filing of petition in such matters directly under Art. 32 of the
Constitution is to be discouraged. It is submitted that the petition submitted before this Hon’ble
Court is not maintainable and thus should be rejected. It is also submitted considering above
mentioned authorities that a writ petition can only lie in the Supreme Court under article 32 when
there is violation of any Fundamental Right of the citizen. Hence the present petition is not
maintainable as there is no violation of Fundamental Rights of the petitioner.
[1.1.1] LOCUS STANDI AND ARTICLE 32

5. A person whose fundamental rights have been violated has the remedy of approaching the Supreme
Court by way of a writ petition filed under Article 32. When faced with such a petition, the Supreme
Court will first deal with the issue of the petitioner’s locus standi; the petitioner will have to
establish that they have the necessary locus to approach the Court. A person acquires a locus standi,
when he has to have a personal or individual right which has been violated or threatened to be
violated.8
6. In this regard, the traditional, well established rule of locus standi is that a person has no right to
complain under Article 32 where no fundamental right has been infringed. Article 32 seeks to
protect the fundamental rights of a person and therefore, a precondition for its applicability is that
there has been a violation of fundamental rights.
7. In the case Simranjit Singh Mann vs Union of India And Another9, this Hon’ble Supreme Court has
dismissed the writ petitioner under Article 32 on the ground that petitioner has failed to establish
that his FRs has been violated and held that the petitioner doesn’t have the ‘locus standi’ to file the
petition.
8. Hence considering above mentioned authorities it is humbly submitted that the petitioner in the
present petition doesn’t have the locus standi because there is no violation of his rights provided
under Article 14, 21 and 29(1) of the Constitution. Therefore this petition should be dismissed.

8
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
9 1992 AIR 1993 SC 280, 1993 (1) ALT Cri 156
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[1.2]LEGISLATIVE INTENT OR POLICY DECISION CANNOT BE CHALLENGED IN ART.32

[1.2.1] GENERAL RULE THAT COURTS DOESN’T INTERFERE IN POLICY DECISION

9. A policy decision taken by the Government is not liable to interference10 (“It is also well settled
that policy decision of the Government cannot be interfered with or struck down merely on certain
factual disputes in the matter. It is not open to the court to strike down such decision until and
unless a serious and grave error is found on the part of the Central Government or the State
Government.”), unless the Court is satisfied that the rule-making authority has acted arbitrarily or
in violation of the fundamental right guaranteed under Articles 14 and 16.11
10. In Ugar Sugar Works Ltd. vs. Delhi Administration and others12, it has been held that in exercise
of their powers of judicial review, the Courts do not ordinarily interfere with policy decisions of
the executive unless the policy can be faulted on the ground of mala fide, unreasonableness,
arbitrariness or unfairness etc. If the policy cannot be touched on any of these grounds, the mere
fact that it may affect the interests of a party does not justify invalidating the policy.
11. In Premium Granites v. State of T.N.13, while considering the court’s powers in interfering with
the policy decision, it was observed that-It is not the domain of the Court to embark upon
unchartered ocean of public policy in an exercise to consider as to whether a particular public
policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion
of the executive and legislative authorities as the case may be.14
12. Therefore referring to above mentioned authority it is very clear that Judiciary cannot interfere in
the policy decisions of Executive and Legislature until and unless those policy decision is violative
of Part III of the Constitution. Hence it is humbly submitted that Section 6A was a policy decision
also the said section does not violate any provision of Part III of the Constitution therefore there is
no need for judiciary to interfere in the present matter.

10
Akhil Bharat Goseva Sangh (3) v. State of A.P., (2006) 4 SCC 162.
11 K. Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44 : AIR 1994 SC 55
12 (2001) 3 SCC 635
13 (1994) 2 SCC 691 : (1994) 1 SCR 579
14 (1994) 2 SCC 691, 714, para 54: (1994) 1 SCR 579.
MEMORIAL ON THE BEHALF OF RESPONDENTS

[1.2.2] LEGISLATIVE INTENT OF THE LAW MAKERS

13. The General rule is court while construing the legislative intent of any act under Art.32, it should
follow the normal rule of construction i.e the intention of the Legislature should be primarily
gathered from the words which are used15. Courts can adopt a hyper technical approach in
construing the intension of the legislature16.
14. In Nairin v. University of St. Andrews17, the Apex Court held that, “Unless there is any ambiguity
it would not be open to the Court to depart from the normal rule of construction which is that the
intention of the Legislature should be primarily gathered from the words which are used18. It is
only when the words used are ambiguous that they would stand to be examined and construed in
the light of surrounding circumstances and constitutional principle and practice.”
15. Hence referring to above mentioned authorities it is humbly submitted that the legislative intent of
law makers for enacting Section 6A is give effect to certain provisions of Assam Accord and the
wording of Section 6A is unambiguous and has only meaning.
[1.3] APPLICABILITY OF DOCTRINE OF LACHES ON WRIT PETITIONS

16. It is humbly submitted that the Doctrine of laches do apply in the petitions where the remedy is sort
invoking Article 32 or 226 of the Constitution.
17. In Tilokchand Motichand v. H.B. Munshi19, C.J. Hidayatullaha along with four Supreme Court
judges held: “It is said that Article 32 is itself a guaranteed right. So it is, but is does not follow
from this that it was the intension of the Constitutional-makers that this Court should discard all
principles and grant relief in petitions filed after inordinate delay.”
18. By this statement C.J. Hidayatullaha simply pointed out the even writ petitions filed under Article
32 and 266 of the Constitution should not be kept outside of the purview of Limitation and an
unreasonable delay should always be barred by delay/laches.

15 Ku.Sonia Bhatia v. State of U.P., and others 1981 (2) SCC 585, AIR 1981 SC 1274
16 A.N.Roy Commissioner of Police v. Suresh Sham Singh, AIR 2006 SC 2677
17 1909 AC 147
18 Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907
19 (1969)1SCC 110
MEMORIAL ON THE BEHALF OF RESPONDENTS

19. The doctrine of laches is based on the principle that “equity aids the vigilant and not those who
sleep on their rights.”20 It is humbly submitted that the present petition is filed after 23 years and
this long period is in itself a proof that the petitioner was sleeping on his rights that is why this
Hon’ble Supreme Court should not allow this petition and should declare the petition barred by
delay and laches.
20. This Hon’ble Court in Rabindranath Bose & Ors. V. Union of India & Ors.21, dismissed by petition
under Article 32 on ground that the delay of fifteen years is not reasonable delay. Hence in the
present petition is humbly submitted by the respondents to dismiss the petition on the ground of
delay/laches.

II. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT


CASE SECTION 6A OF CITIZENSHIP (AMENDMENT) ACT 1985 VIOLATES
ARTICLE 325 AND ARTICLE 326 OF THE CONSTITUTION OF SOUTH
KINGONDOM?

[2.1] SECTION 6A DOES NOT VIOLATE ART. 325 OF THE CONSTITUTION OF


SOUTH KINGONDOM
2.1.1 OBJECTS AND REASONS OF INCORPORATION OF ARTICLE 325.

1. Article 325 of Constitution- Article 325 of Constitution of India deals with No person to be
ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of
religion, race, caste or sex.
2. This Article requires that there shall be one general electoral roll for every constituency for election
to either House of Parliament or to the House of either House of Legislature of a State and precludes
a person being rendered ineligible for inclusion in any such roll or to be included in any special
electoral roll for any such constituency on the grounds only of religion, race, caste, sex or any of
them22.
5

20 Black’s law Dictionary


21 (1970) 1 SCC 84
22 R.C. Poudyal v. Union of India, AIR1993SC1804
MEMORIAL ON THE BEHALF OF RESPONDENTS

3. Under the British Rule separate electorates, for Muslims were provided by the Indian Councils Act,
1909. The Communal Award announced in 1932 provided for separate electorates for Muslims,
Europeans, Sikhs, Indian Christians and Anglo-Indians. By it, separate electorates were sought to
be extended to the depressed classes also. This was opposed by Mahatma Gandhi who undertook
fast unto death and thereupon the said proposal was given up.23
4. It is humbly contended by the respondents that the plain meaning of Section 6A24 does not show
that it tries to make any separate roll on the ground of religion because the application of Section
6A is on the illegal immigrants as a whole which includes persons of different religions25. Moreover
the said section is enacted in the line of Jangasam Accord which was unanimously agreed by the
people of Jangasam. Therefore the legislative intent is very clear that Section 6A was enacted to
give effect to certain provisions of Jangasam Accord.
5. It is humbly submitted that Section 6A does not create any special roll nor it includes or excludes
any person in any electoral roll on the grounds of religion, race, caste, sex. Hence Section 6A is not
in violation of Article 325 of the Constitution.
[2.1.2] OBJECTS AND REASONS OF SECTION 6A

6. The Statement of Objects and Reasons of the Citizenship (Amendment) Act, 1985, reads as under:-
“The core of the memorandum of settlement (Assam Accord) relates to the foreigners issue, since
the agitation launched by A.A.S.U arose out of their apprehensions regarding the continuing influx
of foreign nationals into Assam and the fear about the adverse effect upon the political, social,
cultural, and economic life of the state.”
7. Therefore it is humbly submitted that Section 6A in no way violates Article 325 of the Constitution.
The intension of the legislatures are clear from the object and reasons of Section 6A. Hence there
is no malice intension of the Government in incorporation of the said section.
[2.2] ARTICLE 326 OF THE CONSTITUTION OF SOUTH KINGONDOM

8. Article 326 of the Constitution states that- “Elections to the House of the People and to the
Legislative Assembly of every State must be on the basis of adult suffrage; that is to say, every
person who is a citizen of India and who is not less than 18 years of age on such date as may be
6

23 Shiva Rao, Framing of India’s Constitution, Select Documents, Vol.II, p. 412


24 Moot Proposition, Pg. No. 06, ¶7
25 Moot Proposition, Pg. No. 07 Cl.(3)
MEMORIAL ON THE BEHALF OF RESPONDENTS

fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise
disqualified under the Constitution or any law on the ground of non-residence, unsoundness of
mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such
election26.”
9. The democracy which our Constitution-makers established is based on the representation of the
people in the law-making organs. The method by which this representation has to be effectuated
has been provided in the Constitution. Part XV of the Constitution deals with the topic of elections.
Article 326 provides that elections to the House of the people and to the legislative assemblies of
States should be on the basis of adult suffrage27.
10. It is humbly submitted that section 6A does not violate Art. 326 of Constitution. Section 6A was a
policy decision also the said section does not violate any provision of Part III of the Constitution
therefore there is no need for judiciary to interfere in the present matter.28 Moreover, the Section
6A is taking away the voting right from the people registered as a citizen under Cl. (3)29 of section
6A so that they can prove worthiness to our country and then such political rights shall be given to
them and the said condition nowhere violates Art. 326. Therefore it is purely a policy matter which
do not violate any provision of Part III therefore this Hon’ble court may not interfere in reviewing
this policy decision30.

III. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCE OF THE PRESENT CASE
SEC. 6A IS VIOLATING FUNDAMENTAL RIGHTS ENSHRINED IN PART III OF THE
CONSTITUTION OF SOUTH KINGONDOM?
It is humbly submitted before this Hon’ble SC that Sec. 6A of Citizenship (amend.) 1985 is not in violation
of Art. 14, 21 and 29(1) of the Cons. of S.K. 1950.

26 Lal Babu Hussein and Ors.v.Electoral Registration Officer and Ors. AIR1995SC1189
27 Smt. Indira Gandhi v. Raj Narain, AIR1975 SC2 299
28 Premium Granites v. State of T.N, (1994) 2 SCC 691 : (1994) 1 SCR 579
29 Moot Proposition Pg. No.07
30 Ugar Sugar Works Ltd. vs. Delhi Administration and others, (2001) 3 SCC 635
MEMORIAL ON THE BEHALF OF RESPONDENTS

A law which violates the fundamental right of a person is void.31 Additionally, unconstitutionality might
arise either because the law is in respect of a matter not within the competence of the legislature or because
the matter itself being within the competence, its provisions offend some Cons.al restrictions.32

[3.1] THAT THE STATE ENJOYS LEGISLATIVE COMPETENCE IN THE INSTANT CASE

1. The govt. of S.K. enacted Sec. 6A of Citizenship Amend. Act 1985 to give effect to the
memorandum of settlement between the govt. and the All Jangasm Student Union.
Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I of the Seventh Schedule33and also enjoys powers to make laws with
respect to any of the matters enumerated in List III in the Seventh Schedule of the Cons.34
2. Under Entry 15 and 17 respectively the matters of ‘War and peace’ and ‘Citizenship’ is
within the purview of the Central govt., which enjoys a majority in the Parliament.
Similarly, under Entry23 of List III, matters concerning ‘Social Security’ are enlisted on
which the Central govt. can legislate. Thus, the govt. of S.K. enjoyed legislative
competence to enact the Sec. 6A of citizenship (Amend.) Act, 1985.
[3.2] THAT THE SEC. 6A OF CITIZENSHIP AMEND. ACT 1985, CONSEQUENTLY, IS NOT A
COLOURABLE LEGISLATION

3. The doctrine of colorable legislation is relevant only in connection with the question of
legislative competence.35 Colorable legislation seeks to convey that by enacting the
legislation in question the legislature is seeking to do indirectly what it cannot do
directly.36There has been no fraud and the Parliament of S.K. is fully competent to enact
the legislation.37
[3.3]THAT THE SEC. 6A OF CITIZENSHIP AMEND. ACT 1985, DOES NOT VIOLATE RIGHT
TO LIFE AND PERSONAL LIBERTY PROVIDED BY THE CONS.

31 Namit Sharma v. Union of S.K., (2013) 1 SCC 745.


32M.P.V. Sundararamier & Co. v. State of A.P., AIR 1958 SC 468,.
33 Art. 246(1), The Cons. of S.K., 1950
34 Art. 246(3), The Cons. of S.K., 1950
35 Jalan Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC 691.
36 Naga People’s Movement v. Union of S.K., (1998) 2 SCC 109, .
37 Ibid.
MEMORIAL ON THE BEHALF OF RESPONDENTS

4. It is humbly submitted before this Hon’ble Court that the ‘Sec. 6A of Citizenship Amend.
Act 1985’ brought by the respondent is not in violation of Art. 21 guaranteed under Part
III of the Cons. of S.K..
5. Exercise of right to life guaranteed by the Cons. of S.K. is not absolute,38and the govt.
can impose reasonable restrictions as and when the situation arises in the interest of the
community.39It is essential for the Govt. of S.K. to impose reasonable restrictions on the
exercise of Right to Life and Personal Liberty of its people, in view of larger public
interest40of strengthening the security of the state,41
6. European Convention on Human Rights also recognizes that right to life is not absolute
and lays down certain circumstances which include national security, public safety and
the economic well-being of the country, protection of health, rights and freedoms of
others, inter alia under which the right can be interfered with, by the state.42
7. To begin with, the options canvassed for limiting the right to life include an Art. 14 type
reasonableness enquiry43; limitation as per the express provisions of Art. 19; a just, fair
and reasonable basis for limitation per Art. 21; and finally, a just, fair and reasonable
standard per Art. 21 plus the amorphous standard of ‘compelling state interest’. The last
of these four options is the highest standard of scrutiny44 that a court can adopt. It is from
this menu that a standard of review for limiting the right of life needs to be chosen.45
[3.3.1]SEC. 6A OF CITIZENSHIP (AMEND.) ACT 1985 BROUGHT BY THE GOVT. IS IN
ACCORDANCE WITH, PROCEDURE ESTABLISHED BY LAW PROVIDED UNDER ART. 21
OF THE CONS.

8. Right to life and Personal Liberty and it can be curtailed only in accordance with the
Procedure established by Law, as provided under Art. 21 of the Cons. of S.K.46 When an
Act was challenged in a court of law on the ground that the law was not sound and that
9.

38 Sharda v. Dharam Pal, (2003) 4 SCC 493; Ramlila Maidan Incident v. Home Secretary, Union of S.K., (2012) 5 SCC 1
39 Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC 148;
40 Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61.
41Moot Proposition,
42 Art. 8, European Convention on Human Rights, 1953 (Adopted on September 3, 1953).
43 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
44 United States v. Carolene Products, 304 U.S. 144 (1938).
45 K. S. Puttaswamy and Anr. v. Union of S.K. and Ors., AIR 2015 SC 3081.
46 People’s Union for Civil Liberties v. Union of S.K., AIR 1991 SC 207
MEMORIAL ON THE BEHALF OF RESPONDENTS

it was capricious and unjust, As soon as the procedure is complied with, there will be an end to
everything and the judges will be only spectators47.

9. The SC in Maneka Gandhi,48has laid down a triple test for any law to be considered to
be in accordance with the ‘Procedure established by law’: (1) The law must prescribe a
procedure (2) the procedure must satisfy the requirements of Arts. 14 and 19 (3) and, it
should be just, fair and reasonable.
10. The Sec. 6A of citizenship act enacted by the govt. which regularizes the process of
detection and deportation of illegal migrants is in accordance with procedure established
by law, as its purpose is to eliminate huge influx of migrants in Jangasm is to ensure
welfare of the people, and also to ensure national security.49
[3.3.2]JANGASM ACCORD OF THE GOVT. IS IN VIEW OF COMPELLING STATE
INTEREST

11. The test of Compelling state interest laid down in Gobind,50 provides that right to life of
the people can be compromised in view of compelling state interest. Threat to the security
of the state, high level of pressure on natural resources are all in the nature of compelling
state interest. Thus, Sec. 6A of Citizenship Amend. Act 1985, brought by the govt. to
safeguard the nation from the continuing influx of foreign nationals into Jangasm.
12. Several International Conventions51as well as legal provisions in other countries52
recognize that fundamental rights of the people can be restricted in the interest of the
security of the state. Illegal migrants and pose a huge threat to the national security of
the state53. The Sec. 6A brought by the govt. will help in eliminating the fear about the
adverse effect upon the political, social, cultural, and economic life of the state.
[3.4] SEC. 6A DOES NOT VIOLATE ART. 14 OF THE CONS. OF S.K.

10

47 Chambers v Florida 309 U.S. 227 (1940)


48 Maneka Gandhi v. Union of S.K., AIR 1978 SC 597
49 Moot proposition
50 Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC 148
51 Art. 8, European Convention on Human Rights, 1953 (Adopted on September 3, 1953
52 Art. 5(2), U K Human Rights Act, 2000 (Adopted on October 2, 2000).
53 Moot Proposition
MEMORIAL ON THE BEHALF OF RESPONDENTS

13. Sec. 6A enacted by the state, enables the govt. to identify all the persons coming to
Jangasm from N.K. during different time periods and then deporting them on the basis
of the time period they have entered in the country, thereby, make a reasonable
classification of people based on intelligible differentia as per Art. 14 of Cons. of S.K.
for successful implementation of schemes.
[3.4.1] SEC. 6A SATISFIES THE TEST OF REASONABLE CLASSIFICATION

14. While Art. 14 forbids class legislation, it does not forbid reasonable classification for the
purposes of legislation.54The test of reasonable classification was laid down by SC in
Budhan Chaudhary v. State of Bihar,55which provides that: (1) the classification
proposed in the legislation must be founded on intelligible differentia and that, (2) there
must be close nexus between the classification and the object of the Act.
PRINCIPLE OF INTELLIGIBLE DIFFERENTIA

15. Differential treatment doesn’t per se constitute violation of Art. 14 it denies equal
protection only when there is no reasonable basis for the differentiation56. The expression
intelligible differentia means difference capable of being understood and should be
reasonable and not arbitrary. Sec. 6A aims at classifying people coming from N.K. to
Jangasm after specified dates in order to deport them back.
There is Rational Nexus between Classification and Objective Sought

16. It is contended that the law can make and set apart the classes according to the needs and
exigencies of the society.57 The object of the said act was to give effect to the political
settlement between the govt. and A.A.S.U. regarding the Jangasm Accord. The
reasonableness of a provision depends upon the circumstances obtaining at a particular
time and the urgency of the evil sort to be controlled58. It cannot be put in strait jacket
formula59. It must be considered keeping in view the doctrine of flexibility. Here in the
present case the All Jangasm Student Union highlighted the issue of illegal immigration
11

54 Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191; See also, Kedarnath Bajoria v. State of West Bengal, AIR 1953 SC 404;
55 Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191
56 Ameeroonissa Begum v. Mehbub Begum, AIR1953 SC
57 Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1; See also, Mihir Alias Bhikari Chauhan Sahu v. State, 1992 Cri LJ
58J.K Industries Limited v. Chief Inspectors of Factories and Boilers (1996) 6 SCC 665
59 Praveen singh v. State of Punjab,(2000) 8 SCC 633
MEMORIAL ON THE BEHALF OF RESPONDENTS

in the eyes of law makers, and later agreed for the baseline of 1st January, 1966 for the
purpose of detection of foreigners depending or the circumstances prevailing there.
[3.4.2] SEC. 6A OF CITIZENSHIP AMEND. ACT SATISFIES THE TEST OF ARBITRARINESS

17. ‘Arbitrarily’ means in an unreasonable manner, as fixed or done capriciously or at


pleasure, without adequate determining principle, not founded in nature of things, non-
rational, not done or acting according to reason or judgment, depending on will alone.60
Classification may be according to difference in time61. If a cut-off date can be fixed,
indisputably those who fall within the purview thereof would form a separate class. If
such a classification has a reasonable nexus with the object of the act. Such classifications
would never fall in the category of an artificial classification and whenever such a cut-
off date is fixed, the fact that some persons or a Sec. of society would face hardship, by
itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Art. 14 of
the Cons.62.
18. "The purpose of Sec. 6Aof Citizenship Amend. Act 1985 is to reasonably classify people
based on intelligible differentia i.e. the dates and is therefore, not arbitrary and
unreasonable. The dates included in the Sec. were agreed upon by the govt. and AASU
depending on the circumstances prevailing at that time hence, it is not arbitrary or
unreasonable.
[3.5]SEC. 6A IS NOT VIOLATING ART. 29 OF THE CONS.

19. It is humbly submitted that Sec. 6A of citizenship amendment act 1985 does not violate
Art. 29(1) of the constitution. Clause (1) of Art. 29 of the Constitution of S.K. gives the
right to every section of the citizens, which has a distinct language, script or culture, to
conserve the same. Professor D.E Smith concludes63 : “Culture is a collective name for
the material, Social, Religious and artistic achievements of human groups, including
traditions, customs, and behavior patterns, all of which are unified by common beliefs
and values.”
12

60 Sharma Transport v. Govt. of A.P., AIR 2002 SC 322


61Ramji Lal v, IT Officer,1951 SCR 127
62 iRamrao v. All S.K. Backward Class Bank Employees Welfare Assn. (2004) 2 SCC 76,
63 In A.L. Kroeber and Clyde Kluckhohn, “Culture : a Critical Review of Concepts and Definitions.”
MEMORIAL ON THE BEHALF OF RESPONDENTS

20. Section 6A was enacted to safeguard the right of citizens of Jangasm64 from illegal
immigrants. And also it was enacted in order to give effect to Arti.51c i.e Directive
Principle of State Policy to promote peace and security.
[3.5.1] REASONABLE RESTRICTIONS CAN BE IMPOSED ON FUNDAMENTAL RIGHTS TO
GIVE EFFECT TO DIRECTIVE PRINCIPLES OF STATE POLICY

21. The Directive Principles of State Policy is in order to promote the broader egalitarian
principle.65 Though, these principles are not justiciable but these are not merely moral
principles, these are fundamental in the governance of the country.66 Two rules of
construction laid down, viz., in case of conflict between the right of the individual and
the laws aiming to implement socio-economic policies in pursuance of Directive
Principles, weightage should be given to the latter and every legislation enacted in
pursuance of Directive Principles should be construed as one purporting to be in ‘public
interest’ or as a reasonable restriction on the Fundamental Rights.67 Also the interest of
an individual however important is secondary to the interest of the community.68
22. The protection of Art. 21 extends to all “persons”, not merely citizens69. We are the
country governed by the rule of law thus the state is under an obligation to protect the
life of every citizen in this country, so also the state is under an obligation to protect the
life of those persons also who are not citizens70.There are several decisions of SC and
High Courts of S.K. where refugees have been given protection by evoking Art. 21 of
the Cons.. The leading case is of Chakma refugees, NHRC v. State of Arunachal
Pradesh71 SC held that- Chakma Refugees who had come from Bangladesh due to
persecution can’t be forcibly sent back to Bangladesh as they would be deprived of their
right under Art. 21 of the Cons.. Thus despite the fact that Indian Govt. has not signed

13

64 Moot Proposition
65 Sanjeev Coke Mfg. Co. v. Bharat Coal Ltd., AIR 1983 SC 239.
66 Art. 37, TheCons. of S.K., 1950.
67 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845; See also, See also State of Bihar v. Kameshwar Singh, AIR 1952 SC

252, Bijoya Lakshmi Cotton Mills v. State of West Bengal, AIR 1967 SC 1145.
68 Supra note 101.
69 State of Arunachal Pradesh v. Khudi Ram Chakma,1994 Supp (1) SCC 615
70 Noorunnisa begum v. District Collector, Khammam, 2001
71 AIR 196BSC 1234
MEMORIAL ON THE BEHALF OF RESPONDENTS

the refugee convention the Indian Judiciary has given protection to refugees in above
manner.

IV. WHETHER OR NOT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT


CASE THERE IS A NECESSITY OF ISSUING APPROPRIATE DIRECTIONS TO THE
UNION OF SOUTH KINGONDOM AND STATE OF JANGASAM TO ENSURE
EFFECTIVE STEPS TAKEN TO PREVENT ILLEGAL ACCESS TO THE COUNTRY
AND TO DETECT AND DEPORT ILLEGAL MIGRANTS??
It is humbly submitted before the Hon’ble supreme court of South Kingondom that, there is no requisite
for issuing appropriate directions to the Union of South Kingondom and State of Jangasam to ensure
effective steps taken to prevent illegal access to the country and to detect and deport illegal migrants.

[4.1] JUDICIARY CANNOT ENCROACH INTO THE FUNCTION OF EXECUTIVE AND


LEGISLATURE

1. In the present case, the court need not issue any directions to the Union of South Kingondom as
policy making and legislation is the sole function of the executive72 and the legislature of South
Kingondom. Therefore the Union of South Kingondom shall legislate appropriate polices in the
state of Jangasam to protect the rights of citizens of Jangasam, and the apex court should refrain
from issuing any directions for notifying of any law 73. Hence, in the present situation the Apex
Court should not encroach into the prerogative of the legislature and executive mainly issuing
directives for identifying and deporting the illegal immigrants. Constitutional Bench in the case of
P. Ramachandra Rao v. State of Karnataka it was stated, that Courts can declare the law, they can
interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon
the field of legislation properly meant for the legislature74.
[4.1.2] DOCTRINE OF SEPARATION OF POWERS

2. The term “trias politica" or "separation of power" was coined by Charles-Louis, a 18th century
French social and political philosopher. His publication, "Spirit of the Laws," is considered one of
14

72 Kanhaiya Lal Sethia Vs. UOI (1997) 6 SCC 573


73 Common Cause Vs. Union of India AIR 2001 Delhi 93
74 P. Ramachandra Rao v. State of Karnataka 16 April, 2002, change this into citation
MEMORIAL ON THE BEHALF OF RESPONDENTS

the great works in the history of political theory and jurisprudence. Under his model, the political
authority of the state is divided into legislative, executive and judicial powers. He asserted that, to
most effectively promote liberty, these three powers must be separate and acting independently.
3. Separation of powers, therefore, refers to the division of government responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent is to
prevent the concentration of power and provide for checks and balances.
4. Therefore in South Kingondom, it is the power of the legislature to enact laws and the function of
executive to implement it. In the present situation, the parliament of South Kingondom has
performed its duty of enacting a law for protecting the citizens of the State of Jangasam and also
classified the illegal immigrants who ought to the deported. In such a case, the is no requirement
of the judiciary to further interfere into the matter, hence such an encroachment would not be in the
spirit of the constitution and intervening into the functions of the powers of the legislative and
executive.
[4.2] VIOLATION OF INTERNATIONAL CONVENTIONS AND CUSTOMARY PRINCIPALS
OF INTERNATIONAL LAW

5. It is humbly submitted that, the government of South Kingondom has an obligation


under Article 51(c) and Article 253 of the Constitution, which is part of the Directive Principles of
the State Policy, to foster respect for Treaty obligations in the dealings of organized people with
one another and encourages settlement of international disputes.
6. The immediate deportation process will not be in consistent with the spirit of Article 51(c) of the
constitution and other international conventions.
7. The government of South Kingondom has also kept in mind the principle of non-refoulement,
which has become a customary principal of international laws. There is substantial, if not
conclusive, authority that the principle is binding on all states, independently of specific assent75.
[4.2.1] PRINCIPLE OF NON- REFOULMENT

8. The paramount importance of protecting genuine refugees from expulsion is highlighted in the
introduction of the Refugee Convention, which says: “The principle of 'Non-refoulment' i.e. the
principle of international law which requires that no state shall return a refugee in any manner to a
15

75 Ktaer Abbas Habib Al Qutaifi and Anr v. Union Of India And Ors. on 12 October, 1998
MEMORIAL ON THE BEHALF OF RESPONDENTS

country where his or her life or freedom may be in danger, is also embodied in Article 33(1) of the
United Nations Convention on the Status of Refugees”.
9. Article 33 reads as under:- “No contracting State shall expel or return a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom ' would be threatened on account
of race, religion, nationality, membership of social group or political opinion”.
10. This principle prevents expulsion of a refugee where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social group or political
opinion. Its application protects life and liberty of a human being irrespective of his nationality. It
is encompassed in Article 21 of the Constitution76.
11. The judiciary has also favoured the refugees relying on the international conventions and treaties.
The Gujarat High Court in Ktaer Abbas Habib Al Qutaifi and Anr. v. Union of India and Ors.
relying on the Universal Declaration of Human Rights and the Article 33 of the United Nations
Convention on the Status of Refugees, held” No contracting State shall expel or return a refugee in
any manner whatsoever to the frontiers of territories where his life or freedom ' would be threatened
on account of race, religion, nationality, membership of social group or political opinion”. That the
protection of human life and liberty is available to refugees, if his activities are not prejudicial to
the law and order or security of the Country. The Court also observed that the Member nations are
expected to respect such conventions. The Court applied the principle of 'Non- refoulment' which
means that no State shall return a refugee to the country where his life may be in danger77.
RIGHTS OF PERSONS AGAINST STATELESSNESS

12. The State of South Kingondom are responsible for conferring nationality. Each State lays down the
criteria for conferral and withdrawal of nationality in its own domestic law. It is, therefore, States
which must take action, alone and in cooperation with other States, to ensure that everyone has a
nationality. The right to a nationality is widely recognized in international law and constitutes a
status from which other rights may derive.
13. Article 15 of the Universal Declaration of Human Rights affirms that “everyone has the right to a
nationality”. With these words, the international community recognized that every individual,

16

76 Convention Relating to the Status of Refugees, 28 July 1951 at 3


77 1999 CriLJ 919
MEMORIAL ON THE BEHALF OF RESPONDENTS

everywhere in the world, should hold a legal bond of nationality with a State. In other words,
international law says clearly that statelessness should be avoided.
14. There are several international documents which deal with the issue including the 1948 Universal
Declaration of Human Rights, the 1954 Convention relating to the Status of Stateless Persons and
the 1961 Convention on the Reduction of Statelessness which underlines that a person may not be
deprived of nationality on racial, ethnic, religious or political grounds. It sketches out measures to
prevent statelessness resulting from the transfer of territory; and establishes rules for the granting
of nationality to persons born in a country who would otherwise be stateless.
15. Therefore the sole prerogative of the Parliament to regulate the right of citizenship, including grant
or termination of citizenship under Article 11 of the Constitution. The legislature in this present
case shall invoke these powers to have a balance between domestic harmony and international
harmony.

17
2ND RNBGU NATIONAL MOOT COURT COMPETITION, 2018

MEMORIAL ON THE BEHALF OF RESPONDENTS

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the respondent most humbly and
respectfully pray and request the Hon’ble Court:

1. To dismiss the present petition on the ground of delay/laches.


2. To hold and declare Section 6A of Citizenship (Amendment) of 1985 constitutionally valid.
3. To declare that Section 6A does not dilute political rights of Citizens of South Kingondom and it is in
consonance with Article 325 and 326 of the Constitution of South Kingondom.

OR TO GRANT ANY OTHER RELIEF WHICH THE HON’BLE COURT MAY DEEM
THINK FIT IN THE EYES OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted and for such act of kindness the Respondent shall be
duty bound as ever pray.

Sd/-
(COUNSEL FOR RESPONDENT)
[XVI]