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TLL-Ansal University's 1st National Online Moot Court Competition 2020 BEFORE THE HON’BLE SUPREME COURT OF INDICA [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA] WRIT PETITION (CIVIL) NO. _ / 2019 & OTHER CONNECTED MATTERS Indican Union Shishlamic League & Ors .……….. (PETITIONER)
Union of Indica & Ors.…………………………………… (RESPONDENTS) SUBMISSION ON BEHALF OF THE RESPONDENTS
Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367
David John Hopkins v. Union of India, AIR 1997 Mad 366 14, State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 : 1952 SCR 284
R.K. Garg v. Union of India, (1981) 4 SCC 675 15, S.R. Bommai v. Union of India, AIR 1994 SC 1918 (2024) : (1994) 3 SCC 1
Vishaka v. State of Rajasthan, AIR 1997 SC 3011 19, Vellore Citizen Welfare Forum v. Union of India, 1996 5 SCR 241 33 Maneka Gandhi v Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248
Romesh Thappar v. State of Madras, AIR 1950 SC 124 22 State of Bihar v. Shailabala Devi, 1952 AIR 329, 1952 SCR 654 22 Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors 24 Himat Lal K Shah v Commissioner of Police, AIR 1973 SC 87: (1973) 1 SCC 227
Arun Ghosh v State of West Bengal, AIR 1970 SC 1228, 1970 CriLJ 1136, (1970) 1 SCC 98, 1970 3 SCR 288
Haradhan Saha v State of West Bengal,1974 AIR 2154, 1975 SCR (1) 778
State of Uttar Pradesh v Sanjali Pratap Gupta, Appeal (crl.) 1040 of 2004
Virendra v. State of Punjab 1957 AIR 896, 1958 SCR 308 26 Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 26
Dalbir Singh v. State of Punjab, 1962 AIR 1106, 1962 SCR Supl. (3) 25
M.G. Badappanavar v. State of Karnataka, AIR 1973 SC 1461 27 Vishal Properties (p) ltd. v. State of Uttar Pradesh, (2007) 11 SCC 172 27 LIC of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.
Radha Mohan Lal v. Rajasthan HC, (2003) 3 SCC 427 : AIR 2003 SC 1467
Chintaman Rao v. State of MP, AIR 1951 SC 118 : 1950 SCR 869 34 Krishnan Kakkanth v. Govt of Kerala, AIR 1997 SC 128 : (1997) 9 SCC 495
Peerless General Finance & Investment Co. Ltd. v Reserve Bank of India, AIR 1992 SC 1033 : (1992) 2 SCC 343
Gaurav Sureshbhai Vyas v. Union of India, Writ Peition (PIL) No. 191 of 2015
Peoples Union of Civil Liberties v. Union of India (2004), 2 SCC 476 : AIR 2004 SC 1442
V.K Javali v State of Mysore, AIR 1966 SC 1387 37 O.K Ghosh v E.X Joseph, AIR 1962 SC 812 37 Om Prakash v. Emperor, AIR 1956 All 241, 1956 CriLJ 452 38 Modern Dental College and Research Centre v. State of MP, (2009) 7 SCC 751 : AIR 2009 SC 2432
Superintendent Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633 : (1960) 2 SCR 821
Om Kumar v. Union of India, AIR 2000 SC 3689 38
a) It is submitted that the Citizenship Amendment Act does not violate any Fundamental Right of any section and is in conformity with the Basic Structure Doctrine. Therefore, it is constitutionally valid. b) Article 246(1) confers exclusive power to the Parliament to make Laws with respect to the matters enumerated in List I (Union List) of the Seventh Schedule. Entry number 17 in List I is “Citizenship”. c) The CAA reaffirms Indica’s faith and commitment to secularism by protecting the minorities in non-secular countries within the neighbourhood. It is submitted that limited recognition of religious persecution in limited theocratic countries with a State Religion neither violates the principles of secularism nor falls foul of the arbitrariness clauses. It is submitted that the merely because religion is the starting point of any classification [and not the sole basis of classification], would not imply such classification falls foul of the principles of secularism ISSUE 2: WHETHER OR NOT THE PROTEST LEADING TO RIOTS COULD BE INCLUDED AS PEACEFUL PROTESTS? a) It is contended that protests leading to riots cannot be including as valid protests. Freedom of speech and expression is considered to be one of the basic freedoms in the constitution of Indica. b) The protests which were supposed to be peaceful turned into a full-fledged riot and it led to bloodshed in the country. The protest involved students from the universities and political groups like PMI and KNU who did not support the government in power. The Shislamik community supported these protests and a local mosque made an announcement which encouraged its community members to carry on the protest and fight for their justice.
a) It is most humbly submitted that the Citizenship Amendment Act, 2019 is constitutionally valid. It does not violate any fundamental right of any person neither it goes against the Basic structure principle. 1.1 PARLIAMENT COMPETENT TO MAKE LAWS b) It is contended that the Parliament is competent to make laws for the whole or any part of the territory of Indica by the virtue of Constitutional power conferred upon it. Article 245(1)^1 of the Constitution of Indica empowers the Parliament to do so. c) Article 246(1)^2 confers exclusive power to the Parliament to make Laws with respect to the matters enumerated in List I (Union List) of the Seventh Schedule. Entry number 17 in List I is “Citizenship”. Also, Article 11^3 of the Indican Constitution empowers the parliament to make laws with respect to the acquisition and termination of Citizenship and all other matters related thereto. Therefore, when Article 246(1) is read with Article 11 of the Constitution, Parliament is legislatively competent to frame citizenship laws for Indica. Hence, CAA is enacted by a competent Legislature. d) Provisions of Part II of the Indican Constitution are not exhaustive but fragmentary and skeletal as they do not deal with the problem of acquisition of citizenship subsequent to that date mentioned.^4 To deal with this, Parliament had enacted the Citizenship Act, 1955. e) The Hon’ble Supreme Court has asserted that the Government has an unrestricted power to expel a foreigner and no foreigner can claim to stay in Indica as a matter (^1) Constitution of Indica, Art. 245, Extent of Laws made by the Parliament and by the Legislature of States. (^2) Constitution of Indica, Art. 246, Subject-matter of Laws made by Parliament and by the Legislature of States. (^3) Constitution of Indica, Art. 11, Parliament to regulate the Right of Citizenship by law. (^4) Jain, M.P. (2014), Indian Constitutional Law, Seventh Edition, Lexis Nexis.
of Right.^5 A foreigner can claim the protection to his life and liberty under Article 21, but the right to reside and settle in Indica as conferred by Art. 19(1) (d) is available only to the citizens and not non-citizens.^6 f) It is submitted that CAA is a means to provide relaxation, to specific communities from certain countries (Zakistan, Bangladesh and Afghanistan) with a clear cut- off date. This piece of legislation (CAA) aims to tackle the problem of religious persecution which the communities specified under the CAA are subjected to in Zakistan, Afghanistan and Bangladesh. The Parliament has taken into consideration the de facto situation in the said theocratic Nations and acknowledged the class of minorities after which the CAA was enacted. The Parliament heavily relies on the Joint Committee report on Citizenship (amendment) Bill, 2016. g) The Citizenship Amendment Act is not enacted to provide solutions to all kinds of persecution that has taken place or may be taking place around the globe. CAA is narrowly tailored law that seeks to provide answers to a specific problem which required the attention of Indica. h) The Parliament has used the powers vested up on by the Constitution and in its wisdom devised a legislation to tackle the problem of persecution of the particular communities in the specified countries, who have a State Religion mentioned in their respective Constitution (Shislamic Republic). Millions of citizens of undivided Indica belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when Indica was partitioned in 1947 and many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.^7 i) It is also submitted that CAA in no form or manner infringes the rights existing prior to the enactment. The regime that existed prior to the CAA for seeking citizenship remains untouched even after its enactment. The legal migration on the basis of valid documents and visa is still the same and is permissible for all countries across the world. Subject to the fulfillment of Section 5 and 6 of the (^5) Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 (^6) David John Hopkins v. Union of India, AIR 1997 Mad 366 (^7) Statement of Objects and Reasons, Citizenship (Amendment) Bill, 2019
deal with.^11 This means that the legislature is entitled to make reasonable classification for the purpose of legislation. d) It is humbly submitted that in matter concerning immigration policy and citizenship in particular, it is the executive policy of the sovereign manifested by competent legislation , which would govern the decision. Exclusion of immigrants is an incident of sovereign belonging and immigration policy. This by extension affects the security of the State and hence falls squarely within the Parliamentary domain. e) It is humbly submitted that the classification made by the legislature in the present case fulfils the above said requirement. f) The first tier of classification is the identification of six communities i.e. Hindus, Buddhists, Sikhs, Jains, Parsis and Christians. The said classification is grounded on an intelligible differentia of the said minorities as persecuted communities on the basis of a separate religion practiced by the said communities than the one recognised by the Constitutions of such countries as State religion. The said classified communities are persecuted in the particular neighbouring countries as has been acknowledged and recognised by Parliamentary Committees.^12 g) Conferment of citizenship being a sovereign function allows the Parliament to decide and identify “minorities” in the specified States and the Parliament is not required to take into consideration which communities are treated as minorities in those States. h) Second tier of classification is based on origin of Countries i.e. the People's Republic of Bangladesh, the Islamic Republic of Afghanistan and the Islamic Republic of Zakistan. The history clearly depicts that persecuted minorities in the said three countries were left without any rights and the said historical injustice is sought to be remedied by the amendment without taking away or whittling down the right of any other person. The three nations are theocratic States and this has led to religious persecution of the named communities.^13 (^11) Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367 (^12) Report of the JOINT COMMITTEE on the CITIZENSHIP (AMENDMENT) BILL, 2016, Lok Sabha (^13) Report of the JOINT COMMITTEE on the CITIZENSHIP (AMENDMENT) BILL, 2016, Lok Sabha, Page no.: 38
i) The Joint Parliamentary Committee has laid down the atrocities faced by these minorities in Zakistan.^14 In Afghanistan the minority including Hindu, Sikh, Christians make up to 0.3% of their population and in 2018, 500 to 600 Sikhs and Hindus, representing almost half their numbers, fled to either Indica or Western countries during the year, particularly in the aftermath of the July 1 bombing in Jalalabad.^15 The Hindu population in Bangladesh did fall from around 23% in 1951 to around 8% in 2011.^16 The specified communities from the particular neighbouring countries appear to be most closely connected with Indican nationality considering the closely connected history of such communities within the territorial/geographical landmass of Indica. j) Indica is a constitutionally secular country^17 and further has a large population of persons belonging to the classified communities already residing as Indican citizens. It is therefore submitted that the said classification is logically complete and made as a legislative policy strictly in light of prevailing geo-political and other allied reasons which would not be justiciable. In totality of the above mentioned factors, it is submitted that the classification made is just, fair and reasonable and has a reasonable nexus with the object sought to be achieved by the Act. k) It is respectfully submitted that merely because the classification has not been carried out with mathematical precision, or that there are some categories distributed across the dividing line, is hardly a ground for holding that the legislation falls foul of Article 14, as long as there is broad discernible classification based on intelligible differentia, which advances the object of the legislation, even if it be class legislation. It is respectfully submitted that as long as the extent of over-inclusiveness or under-inclusiveness of the classification is marginal, as may be in the present case, the constitutional vice of infringement of Article 14 would not infect the legislation. (^14) Report of the JOINT COMMITTEE on the CITIZENSHIP (AMENDMENT) BILL, 2016, Lok Sabha, page no.: 22 (^15) Report on International Religious Freedom Report for 2018 United States Department of State • Bureau of Democracy, Human Rights, and Labor (^16) Citizenship Amendment Bill: Are India's claims about minorities in other countries true? https://www.bbc.com/news/world-asia- (^17) S.R. Bommai v. Union of India, AIR 1994 SC 1918 (2024) : (1994) 3 SCC 1
a national register of citizens is a necessary exercise for any sovereign country for mere identification of citizens from non-citizens. It is submitted that as per the existing statutory regime, there are three classes of persons residing in Indica – Citizens, Illegal migrants and foreigners on valid visas. It is therefore, the responsibility entrusted on the Central Government, on a combined reading of the Foreigners Act, The Passport (Entry into Indica) Act, 1920 and the 1955 Act to identify/detect illegal migrants and thereafter, follow the due process of law. Therefore, Article 21 is not violated. e) The identification of illegal migrants in the country, as a principle of governance, is a sovereign, statutory and moral responsibility of the government (as mentioned in the above argument) and is in conformity with Article 21. 1.4. INTERNATIONAL CONVENTIONS a) It is submitted that the treaties and conventions cannot become a standard for judicial review of legislation made by competent legislature in Indica. Reliance on International Law cannot be placed when the specific field is occupied by domestic parliamentary law^21. b) The treaty making power of any sovereign government is always subject to whatever constitutional restrictions that may be determinable by the text or the structure of the Constitution. Therefore, it is submitted that the treaty-making power is exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. c) Therefore, the doctrine of incorporation of international law recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law only if they are not in conflict with an Act of Parliament. d) In regards to the International Conventions, It is submitted that the subjects like foreign affairs, all matters which bring the Union into relations with any foreign (^21) Vishaka v. State of Rajasthan, AIR 1997 SC 3011 and Vellore Citizen Welfare Forum v. Union of India, 1996 5 SCR 241
country, diplomatic relations, citizenship, extradition, admission into and emigration and expulsion from Indica etc. form part of the Union List [List I] contained in the Seventh Schedule to the Constitution read with Article 246 of the Constitution. It is thus, within the domain of Parliament to make laws and for the Central Government to take executive / administrative decisions with regard to the said subjects. 1.5. PRINCIPLE OF SECULARISM & CAA a) It is submitted that CAA does not exempt just the shislamic community from its benefit but also other communities like Tibetan Siddhist from China or Tamil Hindus from Sri Lanka. Therefore, CAA is not attempt to classify just the “Shislamic Community” as illegal migrants. It is further submitted that the recognition of religious persecution in the particular neighbouring states, which have a specific state religion and long history of religious persecution of minorities, is actually a reinstatement of Indican ideals of secularism, equality and fraternity^22. b) Section 6 read with the Third Schedule or Section 5 of the 1955 Act allows any person to become an Indican Citizen. Therefore, it cannot be said that the right to apply for Indican citizenship is only provided to the specific community from specified country. It is unequivocally submitted that the CAA has, in no manner whatsoever, made religion a basis of determining citizenship of a person. c) It is submitted that the CAA reaffirms Indica’s faith and commitment to secularism by protecting the minorities in non-secular countries within the neighbourhood. It is submitted that limited recognition of religious persecution in limited theocratic countries with a State Religion neither violates the principles of secularism nor falls foul of the arbitrariness clauses. It is submitted that the merely because religion is the starting point of any classification [and not the sole basis of classification], would not imply such classification falls foul of the principles of secularism. It is submitted that the Indican secularism is not irreligious rather it takes cognizance of all religions and promote comity and (^22) Constitution of Indica, Preamble.
