Winner Team Memorial Petitioner Nlujaa Vox Anatolis Nation Krishnakantdnism Mnlumumbaieduin 20230910 093731 1 17

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1st NLUJAA Vox Anatolis National Moot, 2019

Winner Team Memorial - Petitioner
In the Hon'ble Supreme Court of Pochinki

Writ Petition (Civil) No. ________/2019
(Filed under Article 32 of the Constitution of Pochinki, 1950)
All Kameshki Student's Union . . Petitioner;
Versus
Union of Pochinki . . Respondent.
Written Submissions on behalf of Petitioner
Counsel for Petitioner
TABLE OF CONTENTS
TITLE PAGE
NUMBER
1. INDEX OF AUTHORITIES 3
2. LIST OF ABBREVIATIONS 6
3. STATEMENT OF 7
JURISDICTION
4. STATEMENT OF FACTS 8
5. ISSUES RAISED 9
6. SUMMARY OF 10
ARGUMENTS
7. ARGUMENTS ADVANCED 12
8. PRAYER 31
INDEX OF AUTHORITIES
List of Cases:
1. Khyberi Tea Co. v. State of Assam, AIR 1964 SC 925
2. Basic Education Board, U.P. v. Upendra Rai and Ors., (2008) 1 SCC (L&S) 771
3. Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615 : AIR 1994 SC
1461
4. Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and Anr, (1980) 4
SCC 1 : AIR 1980 SC 1992
5. EP Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : AIR 1974 SC 555
6. Sharma Transport v. Government of A.P., (2002) 2 SCC 188
7. Indira Gandhi v. Raj Narain, (1995) 2 SCC 159
8. Bodhisattwa v. Subha Chakroborty, (1996) 1 SCC 490 : AIR 1996 SC 922
9. RC Poudyal v. Union of India, 1994 Supp (1) SCC 324 : AIR 1993 SC 1804
10. Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala, (1973) 4 SCC
225 : AIR 1973 SC 1461
11. PV Narasimha Rao v. State, (1998) 4 SCC 626 : AIR 1998 SC 2120
12. Madras Bar Association v. Union of India, (2014) 10 SCC 1 : AIR 2015 SC 1571
13. Shamnad Basheer v. Union of India W.P. (C) 1256/2011
14. Maharao Saheb Shri Bhim Singh Ji v. Union of India, (1986) 4 SCC 615 : AIR
1985 SC 1650
15. Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1 : AIR 2015 SC
783
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16. Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 : AIR 2005 SC 2920
17. A.I. Lawyers Forum for Civil Liberts v. Union of India W.P. (C) No. 125/1998
18. G.C. Kanungo and Ors. v. State of Orissa, (1995) 5 SCC 96 : AIR 1995 SC 1655
19. INS v. Cardozo-Fonseca, 480 U.S. 421 (1987)
20. R v. Secretary for the Home Department, [1988] AC 958.
21. Dongh Lian Kham and Ors. v. Union of India and Ors., (2016) 226 DLT 208
22. Samatha v. State of A.P. and Ors., (1997) 8 SCC 191 : AIR 1997 SC 3297
23. Waman Rao v. Union of India, (1981) 2 SCC 362 : [1981] 2 SCR 1
24. Naveen Chandra Pant and Ors. v. State of Uttarakhand and Ors. WP (PIL) No. 16
of 2016
25. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest and Ors.,
2013 (6) SCALE 57
BOOKS REFERRED:
1. Jagadish Swarup, Constitution of India, 2nd Edition (Volume 1, 2, 3), Modern Law
Publication.
2. D.J. DE, Constitution of India, 3rd Edition (Volume 1, 2), Asia Law House.
3. Justice M.L. Singhal and Suhaas R Joshi Manual on the Constitution of India, 14th
Edition
4. (Volume 3) Lexis Nexis.
5. H.K. Sharay, An Analytical Constitution of India, 4th Edition, Eastern Law House
6. H.M. Seervai, Constitutional Law of India, 4th edition, Volume 1&2, Universal Law
Publishing
7. D.D. Basu, Commentary Constitution of India, 8th edition, Volume 10, Lexisnexis
8. M.P. Jain, Indian Contititutional Law of India, 7th edition, Lexis Nexis
9. Dr. Subash Kashyap Anti Defection and Parliamentary Privileges, 3rd edition,
Universal Law Publishing
10. Sanjay S. Jain and Sathya Narayan, Basic Structure Constitutionalism-
Revisiting Kesavananda Bharati, 2011 Edition, Eastern Book Company
WEBSITES REFERRED:
1. www.lexisnexisacademic.com
2. www.indiankanoon.com
3. www.manupatra.com
4. www.livelaw.com
5. www.thebluebook.com
6. www.thehindu.com
7. www.indconlawphil.wordpress.com
8. www.barandbench.com
9. www.judis.nic.in
10. www.uidai.gov.in
11. www.westlaw.com
12. www.scconline.co
LIST OF ABBREVIATIONS
AIR-All India Record
SCC-Supreme Court Cases
Hon'ble-Honorable
SC-Supreme Court
UNHCR-United Nations High Commissioner for Refugees
STATEMENT OF JURISDICTION
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The Petitioner has approached the Hon'ble Supreme Court of India under Art. 32 of
the Constitution.
The Article 32 reads:
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.
STATEMENT OF FACTS
I. Pochinki is a country made up of 30 States and 8 Union Territories. It is
surrounded by 6 other countries, which share a historically similar cultural
heritage. In the year 1947, two territories which were formerly a part of Pochinki
pre-independence separated out of Pochinki due a division based on religion.
These were Gatka and Mylta, which lie on the east and west of Pochinki
Respectively.
II. Before partition, the population of Pochinki comprised of: Ralivs or the followers
of Ralivism (67%), Galivs or the followers of Galivism (30%), Tsalivs or the
followers of Tsalivism(2%) and the remaining 1% of the population was that of
other religious minorities.
III. After partition, Gatka and Mylta became Galiv majority states. The other
religious groups in these two newly formed countries were persecuted and as a
result of which a huge number of minorities from these countries migrated to
Pochinki. The government of post-partition Pochinki provided citizenship to such
migrants.
IV. Kameshki is a state located in the North Eastern part of Pochinki. The culture
and language of Kameshki is slightly different from the other parts of Pochinki,
and shares its longest border with Mylta. During the post-partition violence in
1947 against the Ralivs, a huge number of them took shelter in Kameshki. The
Ralivs from Mylta have a different culture from the indigenous population of
Kameshki even though they are of a similar religion.
V. Thus in 1978, the students and youths of Kameshki started an agitation against
the illegal migrants who came from Mylta, irrespective of their religion. In 1985,
the agitation ended and it culminated in a Memorandum of Settlement that was
signed between the representatives of the Government of Pochinki and leaders of
the Kameshki Agitation, known as the Kameshki Accord of 1985. Meanwhile, the
influx of immigrants continued in Kameshki from Mylta.
VI. A bill named Citizenship (Amendment) Bill, 2016 was passed in parliament in
2017; its purpose is to provide Citizenship to the non-Galivs who came to
Pochinki fleeing religious persecution from Gatka and Mylta and were residing in
different parts of Pochinki. The people of Kameshki opposed the Act, saying that
legalising illegal immigrants would jeopardise the Kameshki Accord.
ISSUES RAISED
I. Whether the present writ petition is maintainable under Article 32?
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II. Whether the Citizenship Amendment Act, 2017 is constitutionally valid?

III. Whether the Citizenship Amendment Act, 2017 contravenes provisions
of the Kameshki Accord?
IV. Whether International Law can be applied in the instant matter with
regards to the refugees and people affected?
SUMMARY OF ARGUMENTS
Issue I.
The respondents submit that this court has the jurisdiction to try this case for a
plethora of reasons, primarily one being that the Citizenship Amendment Act violates
the constitution of Pochinki. The instant Act violates Article 14 of the constitution and
does not fulfil the pre-requisites required for a statute to satisfy its validity as per
Article 14. There exists no reasonable classification and intelligible differentia and
there is no reasonable nexus between the Act and the objectives sought to be
achieved by the Act. The fundamental constitutional flaw in the Act is that it is not
based on an assessment of actual persecution. Rather than defining the nature of
persecution and leaving the rest to a case-to-case evaluation for the purposes of
granting citizenship, the amendment responds by generalisations that do not
correspond with the purpose as so proclaimed.
Issue II.
The provisions of Citizenship Amendment Act are in clear contravention to the
provisions of the Assam Accord. Not only has the Union not taken any steps in
furtherance of protection of the rights of the Assamese as recognised by Clause 6 of
the Accord, but the union has further violated Clause 5 of the Accord by not deporting
illegal migrants from Assam, who entered the land post the cut-off date as enacted in
Clause 5.8 of the Accord. Furthermore, the Union of Pochinki has further reduced the
age of naturalization of such persons that enter the land, which only worsens the
problem. Pochinki has violated orders of the Supreme Court as well, and not enforced
provisions of the accord, when it was clearly directed to do so.
Issue III. 1) The Citizenship Amendment Act (2017) is violative of the basic
structure of the Constitution-
It is averred by the Petitioners that the Citizenship Amendment Act, 2017 is
violative of the basic structure of the Constitution of Pochinki as it is violative of the
democracy and secular state established by the Constitution which are constituent
elements of the basic structure doctrine.
2) The Citizenship Amendment Act is violative of Article 14 of the Constitution
due to its arbitrary nature-
The impugned Act is violative of Article 14 of the Constitution as Section 2 creates
an unreasonable classification on the basis of religion between immigrants entering
into the territory of the Pochinki who follow Raliv and Tsaliv religious sects from the
states of Gatka and Mylta and any other immigrant seeking entry into the country. In
addition to this, Section 3 creates an unreasonable classification between persons
seeking citizenship by means of naturalisation from the states of Gatka and Mylta and
any other person residing in the territory of Pochinki seeking citizenship by means of
naturalisation.
Issue IV.
Whether the Government is obligated under International law to provide protection
to the illegal immigrants in the instant matter. It is contended that such persons are
technically ‘Economic Migrants’ and are therefore not liable for refugee protection. The
Government also owes the Indigenous People of Kameshki a modicum of protection, as
there is greater onus on the Government to protect these person with greater priority
than the illegal migrants.
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ARGUMENTS ADVANCED
ISSUE I: Whether the present writ petition is maintainable under Article 32?
a) Jurisdiction of the court to try matters of national policy
The respondents submit that this court has the jurisdiction to try this case for a
plethora of reasons, primarily one being that the Citizenship Amendment Act violates
the constitution of Pochinki. It has been held by the apex court in a multitude of cases
that when a particular policy decision does violates a statute or the constitution, it can
be held to be under the purview of the court, under Article 32.
The constitution as under Article 32(1) reads as, “The right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by this
part is guaranteed.”
In the case of Khyberi Tea Co. v. State of Assam1 , the Supreme Court held that
under Article 32, the court confines itself to the question of fundamental rights and
not any other question. The Supreme Court in the case of Basic Education Board, U.P.
v. Upendra Rai and Ors.2 , has also held that, “Court cannot interfere with policy
decisions of the Government unless it is in violation of some statutory or constitutional
provision” It is humbly submitted before this court that the instant Act violates Article
14 of the constitution and does not fulfil the pre-requisites required for a statute to
satisfy its validity as per Article 14.
Therefore, since the particular Act is violative of a fundamental right, the matter
may be entertained by the instant court. It is submitted before this honourable court
that the matter of admission of foreign persons into the country and their processing
thereof is a prerogative of state policy. The same was held in the case of Arunachal
Pradesh v. Khudiram Chakma3 .
However, despite this being a matter of state policy, a state policy can be looked
into on grounds of violations of fundamental rights.
In the case of Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and Anr4 ,
the court held that, “constitutional power conferred on the Government cannot be
exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be
exercised for the public good. Every activity of the Government has a public element in
it and it must therefore, be informed with reason and guided by public interest. Every
action taken by the Government must be in public interest; the Government cannot
act arbitrarily and without reason and if it does, its action would be liable to be
invalidated.”
It is submitted before this court that the Amendment Act is not in public interest of
the lawful citizens of Assam. The current Act clearly violates Clause 5 and 6 of the
Kamekshi Accord, 1985 with specific regards to the date of determination of foreign
migrants as 01.01.1996 and protection of rights of indigenous persons respectively.
This Amendment Act accords legal status to persons that have otherwise entered the
country illegally and further dilutes the cultural pool of the indigenous persons;
something which the government of India has, even if solely directive, agreed to do as
under Clause 6 of the Accord which reads as follows: “Constitutional, legislative and
administrative safeguards, as many be appropriate, shall be provided to protect,
preserve and promote the cultural, social, linguistic identity and heritage of the
Assamese people.” Whereas instead of providing the persons of Assam with such
safeguards, the government of Pochinki has systematically done the opposite of this,
circumventing this clause.
In the case of EP Royappa v. State of Tamil Nadu5 , the court clearly laid down that,
“where an act is arbitrary it is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of Art. 14.”
The fundamental constitutional flaw in the Act is that it is not based on an
assessment of actual persecution. Rather than defining the nature of persecution and
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leaving the rest to a case-to-case evaluation for the purposes of granting citizenship,
the amendment responds by generalisations that do not correspond with the purpose
as so proclaimed.
The Third Schedule of the Citizenship Act, 1955, has been amended to include in
clause d) “Provided that for the persons belonging to minority communities, namely,
Ralivs and Tsalivs, Mylta and Gatka, the aggregate period of residence or service of a
Government in India as required under this clause shall be read as “not less than six
years” in place of “not less than eleven years”. This distinction for naturalization is in
clear violation of Article 14. For any other person apart from Ralivs and Tsalivs,
irrespective of where they are from or whether they are fleeing persecution or not,
have to reside for 11 years to be naturalised. However, the amendment means that
any Raliv or Tsaliv from anywhere in the world, irrespective of their reason to enter
Pochinki will be eligible for citizenship if they reside for six years or more, which is
highly arbitrary.
Furthermore, Justice Pasayat in Sharma Transport v. Government of A.P.6 has
observed as follows, “The expression ‘arbitrarily’ means: in an unreasonable manner,
as fixed or done capriciously or at pleasure, without adequate determining principle,
not founded in the nature of things, non-rational, not done or acting according to
reason or judgment, depending on the will alone” Pochinkian equality jurisprudence
stresses that every single law, including its purpose, must not be capricious or
whimsical, but based on a factually tenable principle and rationale.
It is contented that there is no adequate determining principle. Taken together, the
amendment bill evidently does not intend to choose religious persecution as grounds
of accommodation at all. The bill only intends to isolate Galiv migrants from the
countries, in order to offer citizenship specifically to the Raliv and Tsaliv migrants. It
also aims to do so in an extraordinary fashion by altering the parameters of citizenship
retrospectively.
It is humbly submitted that the impossibility of identifying an adequate
determining principle is not accidental. There is no determining principle simply
because the government intends to enact a purely religious classification. A purely
religious classification, devoid of any determining principle, is also manifestly arbitrary
because it violates the fundamental constitutional value of secularism. Secularism has
consistently been declared to be a facet of the Constitution's basic structure that
Parliament cannot abrogate, even though its constitutional amendment powers, as
held in Indira Gandhi v. Raj Narain7 .
Citizenship law defines a country's political and constitutional identity. Laying down
rules that determine membership in our political community only on the basis of one's
religious beliefs completely violates this principle.
In the words of the Supreme Court in the case of Bodhisattwa v. Subha
Chakroborty8 , “The jurisdiction enjoyed by this Court under Article 32 is very wide as
this court, while conceding a petition for the enforcement of any of the Fundamental
Rights…, can declare an Act to be ultra vires or beyond the competence of the
legislature.”
Thus, it is submitted that the Supreme Court in this case, has the jurisdiction to try
the matter and therefore can pass any order as it deems fit.
ISSUE II: Whether the Citizenship Amendment Act contravenes provisions of
the Assam Accord?
The Assam accord was signed into force in the year 1985 as a memorandum of
settlement between the Government of India and the members of the Assam
Agitation. There are numerous clauses which enumerate the actions the Government
purported to take in order to protect the rights and culture of the Assamese people, a
few of which are in contention as submitted before this honourable court.
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Clause 5.8 of the Accord reads as, “Foreigners who came to Assam on or after
March 25, 1971 shall continue to be detected, deleted and expelled in accordance
with law. Immediate and practical steps shall be taken to expel such foreigners.”
Clause 6 of the Accord reads as, “Constitutional, legislative and administrative
safeguards, as may be appropriate, shall be provided to protect, preserve and
promote the cultural, social, linguistic identity and heritage of the Assamese
people.”
However, the government of Pochinki in clear contravention to this provision has
enacted the Citizenship Amendment Act. The provisions of the Amendment Act seek to
legalise the entry of Ralivs and Tsalivs from Mylta and Gatka, even after the date of
March 25, 1971, which is in clear violation of clause 5.8 of the Accord.
In the case of Assam Sanmilita Mahasangha v. Union of India9 , the Supreme Court
reiterated the decision of the case of Sarbananda Sonowal v. Union of India10 , with
specific reference to incorporation of Section 6-A into the Citizenship Act, 1955.
Section 6-A of the aforementioned statute calls for the expulsion of foreigners as
detected under the Foreigners Act. In the case of Sarbandana Sonowal v. Union of
India11 , the Indian Government stated that in furtherance of Clause 9 of the Accord,
the following would be done,
“1. The international border shall be made secure against future infiltration by
physical barriers like walls barbed wire fencing and other obstacles at appropriate
places. Patrolling by security forces on land and riverine routes all along the
international border shall be adequately intensified. In order to further
strengthen the security arrangements, to prevent effectively future infiltration,
an adequate number of check posts shall be set up.
2. Besides the arrangements mentioned above and keeping in view security
considerations, a road all along the international border shall be constructed so
as to facilitate patrolling by security forces. Land between border and the road
would be kept free of human habitation, wherever possible. Riverine patrolling
along the international border would be intensified. All effective measures would
be adopted to prevent infiltrators crossing or attempting to cross the
international border. 10. It will be ensured that relevant laws for prevention of
encroachment of government lands and lands in tribal belts and blocks are
strictly”
A status report filed by the Government in the case of A.I. Lawyers Forum for Civil
Liberts v. Union of India12 which has been filed seeking deportation of all Bangladeshi
nationals from India, which reads as follows,
“…3. Continuing influx of Bangladeshi nationals into India has been on account of
a variety of reasons including religious and economic. There is a combination of
factors on both sides which are responsible for continuing influx of illegal
immigration from Bangladesh. The important ‘Push Factors’ on the Bangladesh side
include: (a) steep and continuous increase in population; (b) sharp deterioration in
land-man ratio; (c) low rates of economic growth particularly poor performance in
agriculture; The ‘Pull Factors’ on the Indian side include: (a) ethnic proximity and
kinship enabling easy shelter to the immigrants; (b) porous and easily negotiable
border with Bangladesh; (c) better economic opportunities; (d) interested religious
and political elements encouraging immigration;
4. It is difficult to make a realistic estimate of the number of illegal immigrants
from Bangladesh because they enter surreptitiously and are able to mingle easily
with the local population due to ethnic and linguistic similarities. The demographic
composition in the districts bordering Bangladesh has altered with the illegal
immigration from Bangladesh. The districts of Assam and West Bengal bordering
Bangladesh have recorded growth of population higher than the national average.
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The States of Meghalaya, Mizoram and Tripura have also recorded high rates of
population growth. Illegal immigrants from Bangladesh have also been using West
Bengal as a corridor to migrate to other parts of the country.
5. The large-scale influx of illegal Bangladesh immigrants has led to large tracts
of sensitive international borders being occupied by foreigners. This has serious
implications for internal security.”
Thus, the Government of Pochinki has acknowledged that the problems faced by
illegal migration and the fact that such migration has an impact on growth of the
population. The court in Assam Sanmalita Mahasangha v. Union of India13 under a few
important paragraphs has observed as follows,
“39. It will be seen that the number of tribunals set up is abysmally low resulting
in an abysmally low number of decisions by these tribunals. What is interesting to
know is that whereas almost 1,50,000 persons were deported between 1961 to
1965 under The Immigrants (Expulsion of Assam) Act, 1950, the number of
deportations from 1985 till date is stated to be a mere 2,000 odd. Even these
deportees are mostly if not all “push backs” which results in the same deportees
coming back post deportation from a border which is completely porous.”
Thus, the government did not take ample measures in the past, and continues to
let down the Assamese people in pursuance of the Accord.
“41. We are at loss to understand why 67 years after independence the Eastern
border is left porous. We have been reliably informed that the entire Western border
with Pakistan being 3300 Kms. long, is not only properly fenced but properly
manned as well and is not porous at any point. 42. In the light of the above, we
have considered the necessity of issuing appropriate directions to the Union of India
and the State of Assam to ensure that effective steps are taken to prevent illegal
access to the country from Bangladesh; to detect foreigners belonging to the
stream of 1.1.1966 to 24.3.1971 so as to give effect to the provisions of Section 6
(3) & (4) of the Citizenship Act and to detect and deport all illegal migrants who
have come to the State of Assam after 25.3.1971.”
The court further directed that, “…we direct the Union of India to enter into
necessary discussions with the Government of Bangladesh to streamline the procedure
of deportation” Thus, the Supreme Court of India has acknowledged the provisions of
the Assam Accord and gone a step further and directed the Union of India to follow its
directions in furtherance of the promises made under the Assam Accord. This
essentially gives legal validity to the provisions of the Accord.
In the case of G.C. Kanungo and Ors. v. State of Orissa14 , the court has held that,
“…a legislature has no legislative power to render ineffective the earlier judicial
decisions by making a law which simply declares the earlier judicial decisions as
invalid or not binding, for such power if exercised would not be a legislative power
exercised by it but a judicial power exercised by it encroaching upon the judicial power
of the state exclusively vested in Courts.”
In this particular instance, the State has enacted the Citizenship Amendment Act is
clearly in violation of the decision of the Supreme Court. It is contended that the Union
of Pochinki has no legislative power to render ineffective this particular judicial
decision of the court. The court has clearly given certain directions to the Union to
follow in pursuance of the Accord and the will of the Assamese people. However, the
Union has circumvented such orders and passed this particular act. The Citizenship
Amendment Act, with regards to allowing Ralivs and Tsalivs from Mylta and Gatka
valid entry into the country, not only goes against its own filed affidavits in court, but
further goes against the directory orders of the Supreme Court. On one hand, the
Government states that such persons illegally entering the country is problematic, but
on the other hand, not only does not seek to deport these illegal migrants, but further
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seeks to give them citizenship, which essentially worsens the problem. The Union of
India is merely rubbing salt onto the wounds of the Assamese People.
It is humbly submitted that despite stating in the Accord that “Constitutional,
legislative and administrative safeguards… will be made… to preserve and promote the
cultural, social, linguistic identity and heritage of the Assamese people”, and the
Supreme Court recognizing that the Union of India has failed to do so and fulfil it
obligations, the Union of Pochinki has clearly failed in pursuing the orders of the court.
Thus, it is contended that the provisions of the Citizenship Amendment Act, 2017,
not only grossly goes against various provisions of the Assam Accord as stated above,
but also goes against the directory orders of the Supreme Court, and thus is clearly in
contravention of the provisions of the Assam Accord.
ISSUE III: Whether the Citizenship Amendment Act, 2017 is constitutionally
valid or not?
1) The Citizenship Amendment Act, 2017 is violative of the basic structure of
the Constitution-
It is averred by the Petitioners that the Citizenship Amendment Act, 2017 is
violative of the basic structure of the Constitution of Pochinki as it is violative of the
democracy and secular state established by the Constitution which are constituent
elements of the basic structure doctrine.
a) Meaning of democracy-
In RC Poudyal v. Union of India15 , the Supreme Court dealt with the concept of
democracy. It was held in this particular case that, “We are also not concerned with
the wider theoretical conception in which the word can be understood. In our
constitution, it refers to denote what it literally means, that is, ‘people's power’. It
stands for the actual, active and effective exercise of power by the people in this
regard.”
In this particular case, the court also looked into the meaning of democracy from an
institutional perspective and considered Giovanni Storari's definition which stated that
- “democracy is a multi-party system in which the majority governs and respects the
right of minority.”
b) Democracy is a constituent of the basic structure of our Constitution-
In the case of Indira Nehru Gandhi v. Raj Narain16 Justice, HR Khanna opined that:
“This Court in the case of Kesavananda Bharati held by majority that the power
of amendment of the Constitution contained in Article 368 does not permit altering
the basic structure of the Constitution. All the seven Judges who constituted the
majority were also agreed that democratic set up was part of the basic structure of
the Constitution. Democracy postulates that there should be periodical elections, so
that people may be in a position either to re-elect the old representatives or, if they
so choose, to change the representatives and elect in their place other
representatives. Democracy further contemplates that the elections should be free
and fair, so that the voters may be in a position to vote for candidates of their
choice. Democracy can indeed function only upon the faith that elections are free
and fair and not rigged and manipulated, that they are effective instruments of
ascertaining popular will both in reality and form and are not mere rituals calculated
to generate illusion of deference to mass opinion.”
In the same case, Justice YV Chandrachud opined that: “The contention that
democracy is an essential feature of the Constitution is unassailable.”
In Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala17 , it was opined
by Justice Jaganmohan Reddy whose opinion was part of the majority view that “A
sovereign democratic republic, Parliamentary democracy, the three organs of the
State, certainly in my view constitute the basic structure.”
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In PV Narasimha Rao v. State18 , it was held by the apex court that- “parliamentary
democracy is a part of the basic structure of the Constitution.”
It may be inferred from the aforementioned judgments that democracy is an
integral part of the Basic Structure of the Constitution.
As per the facts, there is an influx of people belonging to the Raliv, Galiv and Tsaliv
sects into the State of Kameshki predominantly from the State of Mylta. (provisision in
law which prohibits entry of these boys) The provisions of the Citizenship Amendment
Act, 2017 would operate in such a manner that it legitimizes the entry of illegal
immigrants of Raliv, Tsaliv or other sects belonging to Mylta into the territory of
Pochinki. The Act further goes on to facilitate the naturalization of the aforementioned
illegal immigrants as citizens of Pochinki. By providing such immigrants who have
gained entry into the territory of the State of Pochinki by illegitimate means, the
opportunity to attain citizenship by means of naturalization, they will also be entitled
to the right to vote, select an elected representative of their own choice and also
partake in these elections. This would in effect be violative of the principle of
democracy as it would facilitate the participation of such illegal immigrants in the
election process and in determining the elected political representative for a particular
area or constituency, leading to the dilution of votes of the rightful citizens belonging
to the area in question. It would go on to vitiate the nature of the democracy as
envisioned by the Constitution as the amended Citizenship law would operate in such
a manner that it works to the detriment of the notion that democracy is a power
wielded by the people as it facilitates the participation of those not entitled to vote in
the democratic process.
c) Secularism is a constituent element of the basic structure doctrine
Justice Sikri in Kesavananda Bharathi v. State of Kerala opined, “302. The learned
Attorney-General said that every provision of the Constitution is essential; otherwise it
would not have been put in the Constitution. This is true. But this does not place every
provision of the Constitution in the same position.
The true position is that every provision of the Constitution can be amended
provided in the result the basic foundation and structure of the Constitution remains
the same.
The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.”
It was also held in the same judgment that, “293. It was the common
understanding that fundamental rights would remain in substance as they are and
they would not be amended out of existence. It seems also to have been a common
understanding that the fundamental features of the Constitution, namely, secularism,
democracy and the freedom of the individual would always subsist in the welfare
state.”
As per the aforementioned case laws, it is evident that secularism is a constituent
element of the basic structure doctrine and it is humbly submitted by the counsel for
the Petitioners that the Citizenship Amendment Act, 2017 is violative of the basic
structure doctrine as it is in contravention of the secular spirit of the State of Pochinki
which was envisioned in the text of our Constitution as a whole.
d) Applicability of Basic Structure Doctrine to the test the Constitutionality of
a legislation
It may be argued by the Respondents that the basic structure doctrine is applicable
-----------------------------------------------------------------------------------------------------------------------------------------------------------
only in cases relating to the constitutional validity of an Amendment to the

Constitution itself, but it is averred by the Petitioners that the popular notion of the
applicability of the Basic Structure Doctrine to solely constitutional amendments has
been debunked by recent developments in the law which are evident in certain
landmark Supreme Court decisions. In fact, the Supreme Court has interpreted the
doctrine in such a manner that the validity of a legislation may be tested under the
thresholds of the basic structure doctrine.
In the case of Madras Bar Association v. Union of India19 the Apex Court held that—
“This Court has repeatedly held, that an amendment to the provisions of the
Constitution, would not be sustainable if it violated the “basic structure” of the
Constitution, even though the amendment had been carried out, by following the
procedure contemplated under “Part XI” of the Constitution. This leads to the
determination, that the “basic structure” is inviolable. In our view, the same would
apply to all other legislations (other than amendments to the Constitution) as well,
even though the legislation had been enacted by following the prescribed
procedure, and was within the domain of the enacting legislature, any infringement
to the “basic structure” would be unacceptable. Such submissions advanced at the
hands of the learned counsel for the respondents are, therefore, liable to be
disallowed. And are accordingly declined.
In the case of Shamnad Basheer v. Union of India,20 it was held that:
“Section 85(3)(a) of the Trade Marks Act, 1999, which provides for the eligibility
of a member of the Indian Legal Service and has held the post of Grade I of that
Service for at least three years for qualification for appointment to the post of a
Judicial Member in IPAB, is declared as unconstitutional, being contrary to the basic
structure of the Constitution”
The judges in this particular decision had reaffirmed the decision of the Supreme
Court in Madras Bar Association v. Union of India.
In Maharao Saheb Shri Bhim Singh Ji v. UOI21 , Justice YV Chandrachud opined
that—
“Therefore, what is a betrayal of the basic feature is not a mere violation of
Article 14 but a shocking, unconscionable or unscrupulous travesty of the
quintessence of equal justice. If a legislation does go that far it shakes the
democratic, foundation and must suffer the death penalty.”
Hence a legislation which in its operation is bound to violate the basic structure of
the Constitution may be challenged contrary to the popular notion that only a
Constitutional Amendment may be challenged on the grounds of it being violative of
the basic structure of the Constitution
2) The Citizenship Act is violative of Article 14 of the Constitution due to its
arbitrary nature-
In the case of Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and Anr,22
the court held that, “constitutional power conferred on the Government cannot be
exercised by it arbitrarily or capriciously or in an unprincipled manner; it has to be
exercised for the public good. Every activity of the Government has a public element in
it and it must therefore, be informed with reason and guided by public interest. Every
action taken by the Government must be in public interest; the Government cannot
act arbitrarily and without reason and if it does, its action would be liable to be
invalidated.”
In the case of EP Royappa v. State of Tamil Nadu,23 the court clearly laid down that,
“where an act is arbitrary it is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of Art. 14.”
Furthermore, Justice Pasayat in Sharma Transport v. Government of A.P.24 . has
-----------------------------------------------------------------------------------------------------------------------------------------------------------
observed as follows, “The expression ‘arbitrarily’ means: in an unreasonable manner,

as fixed or done capriciously or at pleasure, without adequate determining principle,
not founded in the nature of things, non-rational, not done or acting according to
reason or judgment, depending on the will alone”
It is humbly submitted that the Citizenship Amendment Act, 2017 is arbitrary as it
lacks any such determining principle, is not backed by reason and guided by public
interest as referred to in the aforementioned cases. As per the facts, the Citizenship
Amendment Act, is violative of the plain text of Article 14 of the Constitution which
reads, “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.” As it blatantly creates a
classification amongst immigrants from Gatka and Mytla who are followers of Ralivism,
Tsalivism or any other religious sect but that of Galivism and any other immigrant in
the country seeking entry and citizenship of the State of Pochinki. This classification is
created by means of s. 2 and s. 3 of the Citizenship Amendment Act, 2017, which
reads as follows—
Section 2 - In the Citizenship Act, 1955 (hereinafter referred to as the principal
Act), in section 2, in sub-section (1), after clause (b), the following proviso shall be
inserted, namely:—
“Provided that persons belonging to minority communities, namely, Ralivs and
Tsalivs, who have been exempted by the Central Government by or under clause (c)
of sub-section (2) of section 3 of the Passport Act, 1920 or from the application of
the provisions of the Foreigners Act, 1946 or any order made thereunder, shall not
be treated as illegal migrants for the purposes of this Act.
Section 3 - In the principal Act, in the Third Schedule, in clause (d), the
following proviso 5 shall be inserted, namely:— “Provided that for the persons
belonging to minority communities, namely, Ralivs and Tsalivs, Mylta and Gatka,
the aggregate period of residence or service of a Government in India as required
under this clause shall be read as “not less than six years” in place of “not less than
eleven years”.
From the text of the Section 2 of the Citzenship Amendment Act, 2017, it is evident
that an unreasonable classification on religious grounds between an immigrant of any
religious sect entering any part of the country and an immigrant originating from
Gatka and Mylta belonging to the Raliv, Tsaliv or any other religious sect. There is no
underlying principle or reasoning behind the classification which has been created. The
Government has created a policy which generalizes the plight of Ralivs, Tsalivs and
followers of other religious sects and legitimizes their entry into the territory of
Pochinki under the guise of them being religiously persecuted in their land of origin
designating them with a refugee status by default, irrespective of whether they are
actually targeted by persecution in any form in their country of origin. Such
immigrants will be accorded preferential treatment to any other immigrants wishing to
enter the country who are subjected to a test of due diligence as per the law, in order
to ascertain whether the individual is to be treated as a refugee facing the risk of
persecution seeking asylum within the sovereign territory of the State of Pochinki or an
immigrant who is seeking entry into the State due to any other cause. The
aforementioned preferential treatment meted to the immigrants covered under the
Citizenship Amendment Act, 2017 may be treated as an unreasonable classification
and is a facet of the arbitrary nature of the impugned Act. In addition to this, the
provisions of Section 3 of the impugned Act also create an unreasonable classification
without a determining principle as the qualification required for any person seeking
citizenship of the State of Pochinki is to either be a resident or serve under any of the
services under the Government of Pochinki for an aggregate period of 11 years
whereas, for an immigrant of the Tsaliv or Raliv sect originating from the states of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Gatka and Mylta, the aggregate period of service under the Government of Pochinki or
residence within the territory of the State of Pochinki is reduced to an aggragate of 6
years. There is no determining principle behind this classification. The aforementioned
classifications created by means of the provisions of the impugned Act comprise the
essence of reasoning behind the arbitrariness of the Citizenship Amendment Act, 2017
ISSUE IV: Whether International Law can be applied in the instant matter with
regards to the refugees and people affected?
Article 1-A(2) of the 1951 Convention25 defines a refugee as any person who “owing
to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group, or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country.”
To that end, Pochinki has signed neither the 1951 United Nations Refugee
Convention nor its 1967 Protocol, which has 140 signatories, an overwhelming
majority of the world's 190-odd nations. Regardless of this fact, Pochinki still harbors a
large population of such persons due to its unique geographical features. That is to
say, since Pochinki shares a border with a plethora of countries and has been
historically kind to such persons when they have migrated to our country during times
of strife.
Even though Pochinki is not a signatory to such international covenants on the
subject, over the course of its post-independence governance, it has largely conformed
to such international laws without giving such conformity any formal shape by means
of a separate statute or law dedicated to such a matter.
Under the existing and prevalent Pochinkin practice, refugees are not distinguished
drastically from ordinary foreigners, and are dealt with under the existing Pochinkin
Law, which can be. Both general and specific, which would ordinarily be applicable to
all foreigners. As mentioned before, this is in large part due to the fact that there
exists no separate law to deal with refugees in Pochinki, in large part due to Pochikni's
reluctance to ratify the aforementioned International agreements due to the various
issues that arose at the time of partition.
It is contended that this becomes problematic when trying the ascertain the extent
of the protection awarded to such refugees. The problem is two-fold.
• Are the people coming in from Mylta and Gatka actually deserving of refugee
status and protection?
• Is the persecution prevalent to such an extent that the only solution available to
such persons is to grant them citizenship in Pochinki?
With regards to the determination of refugee status, cases are often determined on
a case-to-case basis. To that end, the United Nations High Commissioner for Refugees
(UNHCR) assists and provides a complimentary role to the government of the state
with special regard to the verification of the particular individual's history and
background as a means for determining the status of such persons in the country of
their origin. They also proceed to assist the Pochinkin government with the
resettlement of such refugees if and whenever possible.
There are various tests that have been concocted in International jurisprudence in
order to determine the legitimacy of a refugees claim to be a victim of persecution in
their country of origin, and such tests can be used as an adequate barometer in the in
the instant matter as Pochinki has historically given due credence to International law
and principles. Given the lack of codification of laws in this particular ambit of
jurisprudence within the country, we will look at the following cases in various
international courts of law;
In the case of INS v. Cardozo-Fonseca26 interpretation of the “well-founded fear”
standard would indicate that “so long as an objective situation is established by the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
evidence, it need not be shown that the situation will probably result in persecution,
but it is not enough that persecution is a reasonable possibility…”
In the instant matter, we humbly submit that there exists no nexus by which it can
be conclusively stated that the refugees that are currently dwelling in the state all fled
their country of origin due to some well-founded fear in this regard, or if they can even
be classified as refugees as per the aforementioned definitions. By allowing them to
not only continue dwelling and seeking refuge in our country but also legitimizing such
people and adding their names to electoral rolls, dilutes the universal adult franchise
because they have no vested interest in making an alien country prosper.
The standard in this regard was further elaborated upon in the case of R v.
Secretary for the Home Department9 , the case of ex parte v. Sivakumaran. In the
House of Lords of the United Kingdom, the judgement suggested that the ‘test’ should
consider whether there is an evidence of a “real & substantial danger of persecution”.
To establish a fear of persecution, the term “fear” is not to be judged on the basis of
the emotional reaction of the claimant. Instead, “fear” must be employed to mandate
a forward looking assessment of risk. Therefore, persons who had already suffered
persecution in their country of origin, as well as those who may be judged to face
prospective risk of persecution in event of return to their country of origin, would be
able to claim refugee status.
It is contended that in the instant matter that there exists no real and substantial
danger of persecution for such people, and it is almost impossible to prove that such
danger exists objectively. Most of these illegal immigrants make their way over to our
country in pursuit of better opportunities than they would receive in their country of
origin. If they fail to even be counted or be recognized as refugees, they should not be
entitled to any special protection or benefits by the country that they have illegally
migrated to, let alone be granted citizenship status and therefore all the rights granted
to a true citizen of the country. Since the ‘persecution’ aspect is usually given primary
importance when these matters are under consideration, refugee status should not be
granted when no such persecution can be conclusively proven to exist.
This is where a distinction has to be drawn with regards to the terminology used to
describe such migrants. The UNHCR Master Glossary of Terms contains definitions to
categorize the various types of migrants that could be present in a country. An asylum
seeker is a migrant that could potentially become a refugee if the various
aforementioned parameters are met. An Economic Migrant, defined in page 14 of the
master glossary, is “Persons who leave their countries of origin purely for economic
reasons not in any way related to the refugee definition, or in order to seek material
improvements in their livelihood. Economic migrants do not fall within the criteria for
refugee status and are therefore not entitled to benefit from international protection as
refugees.
Therefore, it is humbly contended that the Government of Pochinki is under no
obligation to protect such persons who come into Pochinki purely for an improvement
in the quality of their life, and therefore no onus exists on the government to go out of
their way to protect such persons. The term ‘Economic Migrant’ has been recognized
and used to differentiate immigrant in the case of Dongh Lian Kham and Ors. v. Union
of India and Ors.27 .
It is further contended that the deportation of such refugees would not amount to a
violation of the principle of non-refoulment. This is because the nature of the
persecution being faced by these illegal immigrants cannot be ascertained and their
mere presence in the nation of Pochinki could and will create unrest amongst the
people of Kameshki, which would most definitely lead to a threat against the security
of the nation and the state.
The aforementioned judgment stated:
-----------------------------------------------------------------------------------------------------------------------------------------------------------
“The principle of “non-refoulement”, which prohibits expulsion of a refugee, who

apprehends threat in his native country on account of his race, religion and political
opinion, is required to be taken as part of the guarantee under Article 21 of the
Constitution of India, as “non-refoulement” affects/protects the life and liberty of a
human being, irrespective of his nationality. This protection is available to a refugee
but it must not be at the expense of national security.”
Rights of Indigenous People
Duhaime's Law Dictionary defines the term ‘Indigenous’ as a “Native to a particular
territory; not transient or migratory.” Further, a definition for Indigenous people has
been given by the International Labour Organisation, which terms such persons who
“… on account of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or
colonisation or the establishment of present state boundaries and who, irrespective of
their legal status, retain some or all of their own social, economic, cultural and political
institutions.”
The case of Samatha v. State of A.P. and Ors.28 shed light on the nature of land as a
resource for the indigenous people, and held as follows:
“Para 9. Agriculture is the main part of the economy and source of livelihood to
the rural Indians and a source and succour for social status and a base for dignity of
person. Land is a tangible product and sustaining asset to the agriculturists. In
Waman Rao v. Union of India29 , a Constitution Bench had observed that India being
a predominantly agricultural society, there is a ‘strong linkage between the land
and the person's status in social system’. The strip of land on which they till and
live assures them equal justice and ‘dignity of their person by providing to them a
near decent means of livelihood.’ Agricultural land is the foundation for a sense of
security and freedom from fear. Assured possession is a lasting source for peace
and prosperity.”
To that end, it is humbly contended that this influx of people from another country,
which differs in its cultural heritage from that of Pochinki and specifically that of
Kameshki, cannot be allowed to encroach upon the land of people indigenous to that
land. By allowing such immigrants to enter such land, and subsequently legitimizing
their presence in the country by granting them citizenship, such land is deprived of to
the indigenous people and is therefore detrimental to their very existence. Such rights
were also reiterated in in the high court of Uttarakhand at Nainital in the case of
Naveen Chandra Pant and Ors. v. State of Uttarakhand and Ors.30
The nation of Pochinki has largely recognized the rights of indigenous people in the
international sphere, which was highlighted in the case of Orissa Mining Corporation
Ltd. v. Ministry of Environment and Forest and Ors.31 , which stated:
“Para 38. Apart from giving legitimacy to the cultural rights by 1957 Convention,
the Convention on the Biological Diversity (CBA) adopted at the Earth Summit
(1992) highlighted necessity to preserve and maintain knowledge, innovation and
practices of the local communities relevant for conservation and sustainable use of
bio-diversity, India is a signatory to CBA. Rio Declaration on Environment and
Development Agenda 21 and Forestry principle also encourage the promotion of
customary practices conducive to conservation. The necessity to respect and
promote the inherent rights of indigenous peoples which derive from their political,
economic and social structures and from their cultures, spiritual traditions, histories
and philosophies, especially their rights to their lands, territories and resources
have also been recognized by United Nations in the United Nations Declaration on
Rights of Indigenous Peoples. STs and other TFDs residing in the Scheduled Areas
have a right to maintain their distinctive spiritual relationship with their traditionally
owned or otherwise occupied and used lands.”
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Given the nation's adherence to such rights of indigenous people, an amendment

that acts predominantly to the detriment of such indigenous people should not be
allowed to stand in a court of law. By allowing the influx of such immigrants, the
culture of the indigenous people is largely degraded and diluted to the inevitable
intermingling between the cultures of the people originating from an alien country and
that of Pochinki.
PRAYER
Wherefore in the light of the arguments advanced and authorities citied, the
Respondents humbly submit that the Hon'ble Court may be pleased to adjudge and
declare that:
1. The Supreme Court has the jurisdiction to look into the constitutional validity of
the Citizenship Amendment Act, 2017
2. The Citizenship Amendment Act, 2017 is in contravention to the provisions and
objectives of the Kameshki Accord
3. The Citizenship Amendment Act, 2017 is violative of the basic structure of the
Constitution of Pochinki
4. The Citizenship Amendment Act, 2017 is violative of the Fundamental Rights
guaranteed under the Constitution of Pochinki
AND/OR
That the court may issue any other order as the court deems fit in the interest of
justice, equity and good conscience.
For this act of kindness, the Respondents shall be duty bound forever.
All of which is most humbly and respectfully submitted.
1
AIR 1964 SC 925
2 (2008) 1 SCC (L&S) 771
3 1994 Supp (1) SCC 615 : AIR 1994 SC 1461
4 (1980) 4 SCC 1 : AIR 1980 SC 1992
5 (1974) 4 SCC 3 : AIR 1974 SC 555

6 (2002) 2 SCC 188
7 (1995) 2 SCC 159
8 (1996) 1 SCC 490 : AIR 1996 SC 922
9
(2015) 3 SCC 1 : AIR 2015 SC 783
10 (2005) 5 SCC 665 : AIR 2005 SC 2920
11 (2005) 5 SCC 665 : AIR 2005 SC 2920

12 W.P. (C) No. 125/1998
13 (2015) 3 SCC 1 : AIR 2015 SC 783
14
(1995) 5 SCC 96 : AIR 1995 SC 1655
15 1994 Supp (1) SCC 324 : AIR 1993 SC 1804
16
(1975) 2 SCC 159
17
(1973) 4 SCC 225 : AIR 1973 SC 1461
18 (1998) 4 SCC 626 : AIR 1998 SC 2120
19 (2014) 10 SCC 1 : AIR 2015 SC 1571
20
W.P. No (C) 1256 of 2011
-----------------------------------------------------------------------------------------------------------------------------------------------------------
21 (1986) 4 SCC 615 : AIR 1985 SC 1650

22 Ibid.
23
Ibid.
24 Ibid.
25 The Convention Relating to the Status of Refugees
26
480 U.S. 421 (1987)
27 (2016) 226 DLT 208
28
(1997) 8 SCC 191 : AIR 1997 SC 3297
29
(1981) 2 SCC 362 : [1981] 2 SCR 1
30 WP (PIL) No. 16 of 2016
31
(2013) 6 SCALE 57
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Page 1 Sunday, September 10, 2023

1st NLUJAA Vox Anatolis National Moot, 2019

In the Hon'ble Supreme Court of Pochinki

II. Whether the Citizenship Amendment Act, 2017 is constitutionally valid?

only in cases relating to the constitutional validity of an Amendment to the

observed as follows, “The expression ‘arbitrarily’ means: in an unreasonable manner,

“The principle of “non-refoulement”, which prohibits expulsion of a refugee, who

Given the nation's adherence to such rights of indigenous people, an amendment

5 (1974) 4 SCC 3 : AIR 1974 SC 555

11 (2005) 5 SCC 665 : AIR 2005 SC 2920

21 (1986) 4 SCC 615 : AIR 1985 SC 1650

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