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MOOT COURT EXERCISE AND INTERNSHIPS (CLINICAL COURSE

IV)
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IN THE HON’BLE SUPREME COURT OF INDIA

WRIT JURISDICTION W.P. (PIL) NO. __/ 2020

IN THE MATTER OF ART. 32 OF THE CONSTITUTION OF INDIA

MR. KHETAN AND ORS………………………………………………..PETITIONERS

V/S

UNION OF INDIA………………………………………………………RESPONDENT

BEFORE SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONERS

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TABLE OF CONTENTS

TABLE OF CONTENTS 2

INDEX OF AUTHORITIES 3

STATEMENT OF JURISDICTION 4

STATEMENT OF FACTS 5

ISSUES RAISED 7

ARGUMENTS ADVANCED 8

ISSUE 1: WHETHER THE AMENDMENT IN SECTION 2 OF THE CITIZENSHIP (AMENDMENT)

ACT, 2019 STANDS THE TESTS OF ARTICLE 14 OF THE CONSTITUTION OF INDIA 8
[1.1] THE IMPUGNED AMENDMENT DOES NOT SATISFY THE TWIN TEST OF CLASSIFICATION
9
[1.2] THE IMPUGNED AMENDMENT IS MANIFESTLY ARBITRARY. 10

ISSUE 2: WHETHER THE AMENDMENT IN SECTION 2 OF THE CITIZENSHIP (AMENDMENT)

ACT, 2019 VIOLATES THE PROVISIONS OF ARTICLE 21 OF THE CONSTITUTION OF INDIA 11
[2.1] IMPUGNED AMENDMENT TAKES AWAY RIGHT TO LIFE AND LIBERTY 11
[2.2] THE PROCEDURE THAT TAKES THEM AWAY IS UNLAWFUL. 12

PRAYER 13

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INDEX OF AUTHORITIES

CASES

S.NO NAME OF CASE PAGE NO

His Holiness Kesavananda Bharati Sripadagalvaru v. State of

01. Kerala, AIR 1973 SC 1461 8

M. Nagaraj&Ors. v. Union of India &Ors, 2006 8 SCC 212

02. 8

Navtej Singh Johar v Union of India, (2018)10 SCC 1

03. 8

SR Bommai v. Union Of India, (1994) 3 SCC 1

04. 9

Arunachal Pradesh v. Khudiram Chakma , 1994 Supp. (1) SCC

05. 10
615
Shayara Bano v. Union of India, (2017) 9 SCC 1
06. 10

The Chairman, Railway Board & Ors vs Mrs. Chandrima Das &
07. 12
Ors, (2000) 2 SCC 465
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
08. 12

STATUTES

Constitution of India, 1949

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (2nd ed.) .............................................................................. 13

M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7th ed., 2014)

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has jurisdiction to hear the instant matter under Article
32 of the Constitution of India.

Article 32 of the Constitution of India reads as:

“32: Remedies for enforcement of rights conferred by this Part-

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

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

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

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution”

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STATEMENT OF FACTS

1. The Citizenship (Amendment) Act, 2019 was passed by the Indian Parliament on 11 th
December, 2019.
2. A number of sections of the Citizenship Act were amended but the amendment to
Section 2 of the Act is crucial. Insertion to section 2 (1) (b) reads as follows:
“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian
community from Afghanistan, Bangladesh or Pakistan, who entered into India on or
before the 31st day of December, 2014 and who has been exempted by the Central
Government by or under clause (c) of sub-section (2) of section 3 of the Passport
(Entry into India) Act, 1920 or from the application of the provisions of the
Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as
illegal migrant for the purposes of this Act”.
3. This amendment resulted in large scale protests and agitations. It has been widely
criticized as discriminating on the basis of religion, in particular for excluding
Muslims.
4. Supporters of the amendment claim that the classification is based on ‘persecuted
religious minorities.’ It has been further pointed out that the policy decision is a
political question and shall not be subject to judicial scrutiny.
5. Mr. Khetan, a commentator on social issues in India, has argued the above claim on
the ground that certain Muslim groups have historically faced persecution in these
countries. He further pointed out that the amendment to Act excluded religious
minorities from other regions such as Tibet, Sri Lanka, and Myanmar.
6. Exclusion of a few groups of immigrants and refugees will render them stateless and,
therefore, would violate their fundamental rights guaranteed under the Constitution of
India, including the right to life and personal liberty.
7. Further, it was pointed out by a leader of the Opposition that ‘will of people’ is
sovereign in a democratic nation; therefore, the government shall consider every
amendment in the light of large scale protests and agitations by the people of India.
He further pointed out that protest has affected the life and liberty of the people in
general.

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8. According to Mrs. Ayudhi, a social crusader and lawyer, it is unreasonable, illogical,

and unintelligible to differentiate migrants who entered India on or before 31
December 2014.
9. Meanwhile, Chief Ministers of some of the States declared that they will not succumb
to the "detection, deletion and deportation” policy of the Central Government and will
refrain from implementing the Citizenship Amendment Act in their States.
10. The case is listed for hearing before the Supreme Court of India.

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ISSUES RAISED

ISSUE 1: WHETHER THE AMENDMENT IN SECTION 2 OF THE CITIZENSHIP

(AMENDMENT) ACT, 2019 STANDS THE TESTS OF ARTICLE 14 OF THE
CONSTITUTION OF INDIA

[1.1] the impugned amendment does not satisfy the twin test of classification

[1.2] the impugned amendment is manifestly arbitrary.

ISSUE 2: WHETHER THE AMENDMENT IN SECTION 2 OF THE CITIZENSHIP

(AMENDMENT) ACT, 2019 VIOLATES THE PROVISIONS OF ARTICLE 21 OF
THE CONSTITUTION OF INDIA

[2.1] impugned amendment takes away right to life and liberty

[2.2] the procedure that takes them away is unlawful.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE AMENDMENT IN SECTION 2 OF THE CITIZENSHIP

(AMENDMENT) ACT, 2019 STANDS THE TESTS OF ARTICLE 14 OF THE
CONSTITUTION OF INDIA

It is humbly contended before this Hon’ble Court that the impugned amendment of the
Citizenship (Amendment) Act, 2019 violates Art. 14 of the Constitution of India. Art. 14 of
the Constitution is held to be a part of the Basic Structure. Art. 14 is an integral part of the
basic structure.1 If a constitutional amendment is such as to destroy the essence of the right,
the amendment can be held to destroy the basic structure of the Constitution.2 Equal
protection of law is of essence of the constitution.3 The basic structure cannot be destroyed or
altered in any manner, 4 hence it is contended that the impugned amendment which seeks to
violate Art. 14 and the secular nature of the Constitution should be regarded as
unconstitutional.

A basic well-established principle is that Art. 14 does not mandate absolute equality.
Classification is permitted so long as such classification is reasonable i.e., it is based on
intelligible differentia and has a rational nexus to the objective sought to be achieved. This is
the test of reasonableness illustrated in several decisions of the Supreme Court. 5

In the present matter, the broad class that the CAA is concerned with is “illegal migrants” out
of which hitherto illegal migrants of certain religions and from certain countries i.e. the Non-
Muslims from the Specified Countries have been carved out. With the impugned amendment
brought by the CAA, a specific class of persons, i.e. non-Muslims from the Specified
Countries6 have been giving fast-track citizenship process.

The jurisprudence on Article 14 in the country requires a legislation to satisfy the certain
conditions to pass the test of equality. This contention is two-fold: [II.1] the impugned

1
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461
2
M. Nagaraj&Ors. v. Union of India &Ors, 2006 8 SCC 212
3
BASU, D.D., COMMENTARY ON CONSTITUTION OF INDIA, LexisNexis Butterworths Wadhwa, Vol. II
(14th Ed.
2009)
4
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461
5
Navtej Singh Johar v Union of India (2018)10 SCC 1
6
Moot Court Problem, Page 1

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amendment does not satisfy the twin test of classification [II.2] the impugned amendment is
manifestly arbitrary.

[1.1] THE IMPUGNED AMENDMENT DOES NOT SATISFY THE TWIN TEST OF
CLASSIFICATION
The stated objective of the CAA is to make eligible for citizenship, persons who have faced
persecution on grounds of religion. 7 In doing so, the CAA carves out a class based on religion
and nationality i.e. it specifies persons from certain communities in certain countries.
Creation of a class based on religion prima facie raises concerns of the law conflicting with
secularism, a principle recognized by this Hon’ble Court to form part of the basic structure of
the Constitution.8

It is contended that religion and nationality are not valid as intelligible differentia in the
context of this law, i.e. the Citizenship Act and in light of the objective sought to be achieved
by the CAA. A bare perusal of the provisions of the Constitution and Citizenship Act
highlighted above would show that the law on citizenship till date has clearly been religion
agnostic.

The distinct criteria or intelligible differentia on which the CAA gives benefit only to
refugees from the 3 countries specified earlier, belonging to the specified religious
communities. According to the Government of India, the classification is based to correct the
“historical wound”9 According to the Statement of Objects and Reasons of the CAA, trans-
border migration has occurred from neighbouring countries. Keeping in mind the “two-
nation” theory, Pakistan and Bangladesh were part of pre-independence India and their
residents seek protective asylum in the country. The Government has also maintained that
Pakistan, Bangladesh and Afghanistan have a State Religion. The specified communities
faced religious prosecution in the abovementioned countries, i.e. they cannot practice, profess
or propagate their religion.

It is contended by the petitioners that the categories mentioned by the Government would not
amount to “intelligible differentia.” If the criteria for specification of certain class of people
is based on trans-boundary migration, then the exclusion of states like Myanmar and Sri
Lanka cannot be justified. The Government has also placed reliance on the two-nation theory
which does not explain the inclusion of Afghanistan. The State Religion of Sri Lanka is

7
Moot Court Problem, Page 2
8
SR Bommai v. Union Of India, (1994) 3 SCC 1
9
Moot Court Problem Page, 2

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Buddhism and hence it should ideally be included in the impugned amendment. The
Government also cited the criteria of “religious persecution,” however, the impugned
amendment does not clarify the position of the various Muslim sects who are also not
allowed to practice, profess or propagate their religion in their own countries due to being
“less Islamic.”

It is contended that the only possible criteria that explains the distinction provided in the
impugned amendment is that these three countries are neighbouring India and their State
Religion is Islam and the specified religious communities are religious minorities in those
regions. The petitioners contend that the basis for classification and the words “religious
persecution” is not specifically written in the CAA. Classification based on religious identity
would be impermissible classification since religion is a part of a person’s intrinsic or core
identity and this cannot be “intelligible differentia” u/a 14 as per the law laid down by this
Hon’ble Court in the case of Navtej Singh Johar v Union of India.10

The petitioners claim that there exists no reasonable nexus/ connection with the aim/object of
the CAA. The aim of the CAA is to provide fast-track citizenship to immigrants/ refugees
from these three countries belonging to these specific communities.

The Hon’ble Court in the case of Arunachal Pradesh v. Khudiram Chakma11 held that
“Citizenship is a precious right.” The Constituent Assembly recognized that Citizenship of
India shouldn’t be “cheap” and is a privilege. The Court also rejected granting citizenship
easily to Hindus/Sikhs from Pakistan (including Bangladesh).

Thus, it is contended by the petitioners that there is no reasonable basis on which these
immigrants should get fast-track citizenship while others should not.

[1.2] THE IMPUGNED AMENDMENT IS MANIFESTLY ARBITRARY.

Apart from the conventional twin test of classification, a law can also be struck down as
violating Article 14 if it is manifestly arbitrary. In Shayara Bano v Union of India,12 the
Supreme Court elucidated the concept of manifest arbitrariness in the following words:

“101…Manifest arbitrariness, therefore, must be something done by the legislature

capriciously, irrationally and/or without adequate determining principle. Also, when

10
Supra at 35.
11
Arunachal Pradesh v. Khudiram Chakma , 1994 Supp. (1) SCC 615
12
Shayara Bano v. Union of India, (2017) 9 SCC 1

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something is done which is excessive and disproportionate, such legislation would be

manifestly arbitrary.”

A bare perusal of the above instances of over inclusion and under inclusion in the CAA
would show that it is not based on an adequate determining principle. The selected class has
no rational nexus to the objective sought to be achieved and cannot be distinguished from
other equally placed persons. Of course, one cannot also ignore the possibility that the law
has been framed with a sinister intent to discriminate against and exclude one particular
religion. The popular argument advanced to exclude Muslims from the scope of the CAA is
that the Specified Countries are Islamic majority countries whose constitutions specify Islam
as the state religion. Therefore, there is no question of Muslims being persecuted in these
countries. As discussed above, this is factually inaccurate as sects of Muslims such as the
Ahmadiyas are persecuted in a Muslim majority country such as Pakistan. Further, this also
begs the question as to why choose only the Islamic majority countries and not other
countries where there is religious persecution such as Myanmar and Sri Lanka.

Therefore, it is submitted that the impugned amendment violates Art. 14 because it does not
satisfy the twin test of classification and is manifestly arbitrary.

ISSUE 2: WHETHER THE AMENDMENT IN SECTION 2 OF THE CITIZENSHIP

(AMENDMENT) ACT, 2019 VIOLATES THE PROVISIONS OF ARTICLE 21 OF
THE CONSTITUTION OF INDIA

It is contended that the amendment in Section 2 of the Citizenship (Amendment) Act, 2019 is
against the fundamental right guaranteed u/a 21 of the Indian Constitution. CAA applies to
migrants already living in India since 2014. Art. 21 would be attracted in its dual nature, [2.1]
impugned amendment takes away right to life and liberty [2.2] the procedure that takes them
away is unlawful.

[2.1] IMPUGNED AMENDMENT TAKES AWAY RIGHT TO LIFE AND LIBERTY

Article 21 guarantees to every person right to life and liberty which cannot be taken away
except by the procedure established by law. Life has been interpreted by several decisions of
this Hon’ble Court to mean a meaningful life with dignity and not just mere animal

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existence.13 Further, any procedure established by law to curtail the right to life must be fair,
just and reasonable.14

It is contended by the petitioners that refugees who have fled their country of origin on
grounds of religious persecution lose their very identity and sense of belonging. They are
homeless and stateless. In the new country where they flee to, they seek to rebuild their life
and create an identity for themselves.

A person seeking asylum/ refuge in India, on account of the religion centric criterion of the
Impugned Amendment Act for citizenship by naturalisation, will be put to a situation wherein
he will have to choose either the State or his religion. This will amount to violation of
fundamental rights guaranteed under Articles 21 and 25 of the Constitution. The said
legislation also discriminate against persons who do not profess or practice any religions or
any faith, but is yet subjected to persecution in any of countries which have been referred to
in the said legislation.

[2.2] THE PROCEDURE THAT TAKES THEM AWAY IS UNLAWFUL.

The procedure implementing and supplementing the CAA is the nation-wide NRC. The NRC
at the outset is required to differentiate on the basis of religion while undertaking
documentation process. Where the differentiation is unintelligible, the procedure cannot be
reasonable u/a 21.

Therefore, it is submitted by the petitioners that the impugned amendment to the CAA,
violates the principles mentioned u/a 21 of the Indian Constitution.

13
The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors, (2000) 2 SCC 465
14
Maneka Gandhi v. Union of India, (1978) 1 SCC 248

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PRAYER

Wherefore it is prayed, in light of the issues raised, authorities cited and arguments advanced,
it is most humbly and respectfully requested that the Hon’ble Supreme court of India be
pleased to:

1. Declare that the amendment to Section 2 of the Citizenship (Amendment) Act, 2019
as unconstitutional because it violates Art. 14, 21 and the basic structure of the
Constitution of India.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

All of which is most humbly and respectfully submitted.

Date: 21.02.2020

Sd/-

(Counsel for the Petitioners)

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