T 24 Vox Anatolis Respondent Memorial

BEFORE THE HONORABLE SUPREME COURT OF POCHINKI
CASE CONCERNING THE CONSTITUTIONAL VALIDITY OF CITIZENSHIP (AMENDMENT) ACT 2017
ALL KAMESHKI STUDENT UNION
PETITIONER
v.
THE UNION OF INDIA
RESPONDENT
CASE NO. __/2019
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS
TEAM CODE: T 24
1ST VOX ANATOLIS NATIONAL MOOT COURT COMPETITION, NATIONAL LAW UNIVERSITY AND
JUDICIAL ACADEMY, ASSAM

21ST ANNUAL INTERNATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION 2016-2017
1.
2. TABLE OF CONTENTS
INDEX OF AUTHORITIES III
STATEMENT OF JURISDICTION VII
STATEMENT OF ISSUES VIII
STATEMENT OF FACTS IX
SUMMARY OF ARGUMENTS X
ARGUMENTS ADVANCED 1
1. 22
1.1. 24
1.2. 25
1.3. 26
1.4. 27
2. 27
2.1 The doctrine of basic structure is not applicable on the impugned legislation. 7
2.2 The impugned act is not in violation of basic structure of the constitution of Pochinki 10
3. 32
3.1 That the Supreme Court of Pochinki does not have jurisdiction on the international law 11
3.2 In Arguendo, that the impugned act does not violate international law for the prevention of religious
discrimination, and the protection of the minority and the indigenous people. 14
3.3 That the impugned act does not violate the obligations under the Refugee Convention and is in
consonance with the policy of Non-refoulment 17
PRAYER XI
12 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

3.
4. INDEX OF AUTHORITIES
CASES
Akhil Bharatiya Soshit Karamchari Sangh Railway v. Union of India, AIR 1981 SC 298 2
Anant Prasad Lakshminiwas Genriwal v. State of AP, AIR 1963 SC 853 1
Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34 6
Bhavesh Jayanti Lakhani v. State of Maharashtra (2010) 1 SCC 47 12
Bhim Singh Ji v Union of India, AIR 1981 SC 234 10
Bhim Singh v. Union of India, AIR 1985 SC 1650 7
Chintaman Rao v. State of MP, AIR 1951 SC 118 10
Chiranjit Lal Chowdhuri v Union of India, AIR 1951 SC 41 2
DP Joshi v State of Madhya Pradesh, AIR 1954 SC 334 5
Ganpatrao v. Union of India, AIR 1993 SC 1267 7
Golak Nath v. State of Punjab, AIR 1967 SC 762. 7
Habib Al Qutaifi v Union of India, 1999 CriLJ 919 13
Indira Gandhi v Raj Narain and Ors., AIR 1975 SC 2299 10
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 8
J.K. Cotton Spinning and Weaving Mills Ltd. and Anr v. Union of India, (1987) Supp 1 SCC
350. 3
Jogindernath v Union of India, (1975) 3 SCC 459 6
Kathi Raning Rawat v State of Saurashtra, AIR 1952 SC 123 2
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1413 7
Kuldip Nayar v Union of India AIR 2006 SC 3127 9
Kuldip Nayar v. Union of India, AIR 2006 SC 3127 9
L Chandra Kumar v Union of India, AIR 1997 SC 1125. 10
M. Nagaraj v Union of India, (2006) 8 SCC 212 10
Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248 1
Modi Entertainment Network & Ans. V. W.S.G. Cricket Pte. Ltd., (2003) 4 SCC 341, p 11 13
Namit Sharma v Union of India, (2013) 1 SCC 745. 4
National Legal Service Authority v Union of India, (2014) 5 SCC 438 13

Nationality Decrees Issued in Tunis and Morocco (France v United Kingdom), Advisory
Opinion (1923) PCIJ Series B, No 4 14
Nottebohm, (Liechtenstein v Guatemala), ICJ Reports 1955 p 4, 20 14, 15
P. Geetha v. Kerala Livestock Development Board Ltd, (2015) 1 KLJ 494. 12
People's Union of Civil Liberties vs. Union of India AIR 1997 SC 568 13
Regina v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 (HL). 13
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 6
Sakhawant Ali v State of Orissa AIR 1955 SC166 3
Saurabh Chaudri v Union of India (2003) 11SCC 146 3
State of AP v Venkateshwara Theatre, AIR 1993 SC 1947 4
State of Maharashtra v. Indian Hotel and Restaurant Association, (2013) 8 SCC 519 1
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 1
State of West Bengal v. Jugal Kishore More AIR 1969 SC 1179 12
The Constitution (Twenty-Fourth Amendment) Act 1971. 8
Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 13
Vishakha v. State of Rajasthan, (1997) 6 SCC 241 13
Xavier v. Canara Bank Ltd., 1969 KLT 927; 12
STATUTES
S. 8(2), Foreigner Act, 1948 14, 20
TREATISES
International Covenant on Civil and Political Right, 1966 15
Convention Relating to the Status of Refugees, 1951. 17
International Covenant on Economic, Social, and Cultural Right, 1966 16
United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious
and Linguistic Minority, 1992. 16
Convention against Torture, 1984 19
Vienna convention on Laws of Treaties 1969 19
CONSTITUTIONAL PROVISIONS
Art. 14, The Constitution of Pochinki 1


Art. 29, The Constitution of Pochink 13
Art 131, Constitution of Pochinki 13
Art 245(1), Constitution of India 8
Art 253, The Constitution of Pochinki 12
Art 368(1), Constitution of India. 8
Art 368(4), Constitution of India 8
REPORT
Human Rights Committee, General Comment 18 (Thirty-seventh session, 1989), Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,
UN Doc HRI/GEN/1/Rev9 (Vol I) at 195 (2008 15
Joint Committee on Citizenship, Lok Sabha, The Report on Citizenship (Amendment) Bill, 2016
12, 15, 19
Martinez Cobo Study, United Nations for Indigenous People, E/CN.4/Sub.2/1983/21 16
ARTICLE
A.K. Ganguli, Interface between International Law and Municipal Law: Role of the Indian
Judiciary, India and International Law 13 (Bimal N. Patel Ed., Volume 2, 2008); 12
Dongh Lian Kham v. Union of India WP (Crl.) No. 1884/2015. 19
Dr. Ashok Dhamija’s ‘Need to Amend a Constitution and Doctrine of Basic Features’ published
by Wadhwa Nagpur, First Edition, revises 2007, p.341 9
Justice S.B Sinha, Constitutional Challenges in the 21st Century, 21 (1) NLSI Rev 117 (2009).13
Lavanya Rajmani, International Law and Constitutional Schema, Oxford Handbook on Indian
Constitution, (OUP 2016) 13
M. Akehurst, Jurisdiction in International Law, 46 British Yearbook of International Law, 1972,
p. 160 13
M. Bassiouni, "International Crimes: jus cogens and Obligatio Erga Omnes", Law &
Contemporary Problems, 1998, 59: 63–74 19

Mattias Ahren, ‘Indegenous Peoples’ Status in the International Legal System’ (Oxford
University Press, 2016). 16
Tarunabh Khaitan, 'Discrimination' in [2017] Max Planck Encyclopedia on Comparative
Constitutional Law, para 30; 15, 18
BOOKS
HM Seervai, Constitutional Law of India, 166, Vol 1 (4th Ed. 1994), 9 2
Ian Brownlie, Principles of Public International Law (OUP, 6th Ed, 2003) at pp 31-32 12,14
M. Shaw, Sources, Principles of International Law, 258, (7th ed,Cambridge University Press,
2014). 19
Sudhir Krishnaswamy, Democracy and Constitutionalism in India, 75, (1st ed, 2010). 10
OTHER AUTHORITIES
273rd Law Commission of India Report, Ratification of Torture Convention, 8 (2002). 19
ILC Articles on Diplomatic Protection, GAOR, 61st Sess, Supp No 10, A/61/10; Amera singh,
Diplomatic Protection (2008). 14
Standard Operating Procedure, and Report of Refugee and India, 2011 14

5.
6. STATEMENT OF JURISDICTION
The Honorable Supreme Court of Pochinki derives its jurisdiction as regards the public interest
litigation filed by the petitioner. The writ petition can be filed in the Supreme Court of Pochinki
under the Article 32 of the Constitution of Pochinki. The Supreme Court of Pochinki has its
jurisdiction to hear all the issues mentioned.

7.
8. STATEMENT OF ISSUES
-I-
Whether the impugned act is in violation of the Fundamental Rights guaranteed under Article 14,
read with Article 25 and Article 29 of the Constitution of Pochinki.
-II-
Whether the doctrine of Basic Structure is applicable in the present case, and if the impugned act
is in violation of the Basic Structure of the Constitution of Pochinki.
-III-
Whether the principles of International Law are applicable in the present case, and if the
impugned act is in violation of the obligations of State of Pochinki under the International Law.

9.
10. STATEMENT OF FACTS
1. PARTIES TO THE DISPUTE:
The present petition has been filed in the Supreme Court of Pochinki by the All Kameshki
Student Union against the Union of India to declare the Citizenship (Amendment) Act, 2016
as constitutionally invalid on grounds of it being against the basic structure of the
constitution and detrimental to the culture and language rights of Kameshki while being
violative of the Kameshki Accord. It was urged that the deportation of the illegal immigrants
who came to Pochinki after March 24, 1971 be deported with immediate effect.
2. THE LEGISLATION:
The Citizenship (Amendment) Act, 2016 was passed to amend the existing citizenship law
and provide citizenship to the Non-Galivs who came to Pochinki fleeing religious
persecution and the high population density from the countries of Mylta and Gatka.
3. THE DISPUTE:
The indigenous people of Kameshki oppose this Amendment as it is gives opportunity to

further alter the demographics of their state and consequently threaten the existence of their
distinct language and culture, while also fearing for their jobs and lands. On the other hand,
the Union Government of Pochinki felt that they must do justice to the Ralivs and Tsalivs of
who were facing religious persecution in the states of Mylta and Gatka. Furthermore, the
question of deporting the illegal migrants was ruled out by the Union on grounds of it
following the principle of Non-Refoulement.

11.
12. SUMMARY OF ARGUMENTS
-VIOLATION OF FUNDAMENTAL RIGHT-
The Citizenship (Amendment) Act 2016, is not in violation of Article 14 of the Constitution of
Pochinki it makes a reasonable classification firstly between the refugees on the basis of
persecution faced, and secondly between the persons of Pochinkian origin. The Legislature as a
matter of policy can differentiate between degrees of harm and strike only those facets which the
Legislative judgment asks it to.
-VIOLATION OF BASIC STRUCTURE-
The Doctrine of Basic Structure is not applicable on The Citizenship (Amendment) Act 2016 and
the impugned act does not violate the basic feature of the federalism under the Constitution of
Pochinki. as it does not impact the (i) principle of equality as enshrined in the Constitution, (ii)
principle of secularism as enshrined in the Constitution of Pochinki (iii) duty to protect State
from external aggression and internal disturbance, (iv) the federal principle as is enshrined in the
Constitution of Pochinki.
-VIOLATION OF INTERNATIONAL LAW-
The principles of International law are not applicable on The Citizenship (Amendment) Act
2016, as State of Pochinki follow model of dualism. Further, the impugned act does not violate
the obligations of State of Pochinki, under international law, for the prevention of religious
discrimination and protection of minorities and the indigenous people. It also is in consonance
with the refugee convention and the policy of non-refoulement.

13.
14. ARGUMENTS ADVANCED
1. THE IMPUGNED ACT DOES NOT VIOLATES ARTICLE 14 OF THE CONSTITUTION OF POCHINKI
1. Article 14 of the Constitution of Pochinki provides for ‘equality before law’ and ‘equal
protection of law’.1 Supreme Court of Pochinki, inspired by the 14th Amendment of the US
Constitution, devised the twin test which must be satisfied for a legislation to pass scrutiny of the
equality clause, namely; Whether the classification made by the law was based on an intelligible
differentia, and if such the differentia has a reasonable nexus with the object the law sought to be
achieved by the act.2 It is a presumption in the above enquiry that the law pursues a legitimate
object.3 Therefore, though Article 14 forbids class legislation, it does not prohibit reasonable
classification.4 Any such classification may be founded on different bases such as historical,
geographical, social et al reasons.5 Therefore, treating unequal’s as equals would be a violation
of Article 14 as such situations arise from lack of classification when classification is essential.
2. Justice B.K. Mukherjea in State of West Bengal v Anwar Ali Sarkar, stated that in determining
whether the person complaining has been discriminated against as a result of a legislation, it is
not his burden to establish that in making the law, the legislature was actuated by a hostile or
inimical intention against the person or class.6 What must be looked at is not the dominant
purpose of the legislation, but whether by operation of the law, discrimination was a necessary
consequence. The Court has to consider is the ‘direct and inevitable effect’ of such law.7
3. The word discrimination, has not been used under Article 14 however, it has been expressly
mentioned under Article 15(1) and Article 16(2) of the Constitution of Pochinki.8 It was stated
by Supreme Court in Kathi Raning Rawat v State of Saurashtra that “The term ‘discrimination’
has been understood to mean to have an element of unfavorable bias. If a bias is disclosed and is
based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will,
1
Art. 14, the Constitution of Pochinki.
2
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
3
State of Maharashtra v. Indian Hotel and Restaurant Association, (2013) 8 SCC 519.
4
Ibid.
5
Anant Prasad Lakshminiwas Genriwal v. State of AP, AIR 1963 SC 853.
6
Supra 2.
7
Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248.
8
Art. 15, The Constitution of Pochinki; Art. 16, The Constitution of Pochinki.

without more, incur condemnation as violating a specific constitutional prohibition unless it is

saved by one or other of the provisos to that Article.”9 It is submitted, that the same protection,
however is not available in case of laws which deal with non-citizens as is also the opinion of
noted author H.M. Seervai.10
4. In a cautionary note, Justice Krishna Iyer, has noted: “a classification in order to be

constitutional must rest upon distinctions that are substantial and not merely illusory. The test is
whether it has a reasonable basis free from artificiality and arbitrariness embracing all and
omitting none naturally falling into that category”. He further went on to say that “care must be
taken to see that classification is not pushed to such an extreme point so as to make the
fundamental right to equality cave in and collapse.”11 Thus, it must be remembered that over-
classification itself may rob the equality clause of its contents.12
5. There must be presumption of Constitutionality of a law and it must be presumed that a

Legislature understands and correctly appreciates the needs of its own people. The onus to
establish facts or circumstances to support the charge of unreasonableness is on the person who
assails legislation. A petition can be disposed of on the simple ground that the petitioner has not
discharged the onus which lies upon him.13 It must be presumed that a legislature understands
and correctly appreciates the need of its own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based upon adequate grounds.14
6. The Government cannot be denied the right to decide from what sources the admission will be
made. That essentially is a question of policy and depends inter, alia on an overall assessment
and survey of the requirements of residents of particular territories and other categories of
persons for whom it is necessary to provide facilities for medical education. If the sources are
properly classified whether on territorial, geographical or other reasonable basis it is not for the
9
Kathi Raning Rawat v State of Saurashtra, AIR 1952 SC 123.
10
HM Seervai, Constitutional Law of India, 166, Vol 1 (4th Ed. 1994), 9.
11
Akhil Bharatiya Soshit Karamchari Sangh Railway v. Union of India, AIR 1981 SC 298.
12
Ibid.
13
Chiranjit Lal Chowdhuri v Union of India, AIR 1951 SC 41.
14
Ibid.

courts to interfere with the manner and method of making the classification.15 Legislation to
achieve a particular object need not be all embracing.16
7. It is submitted that the impugned act does not violates Article 14 of the Constitution of Pochinki
as the legislature may create a deeming provision of the nature that has been created, [1.1] and
the legislature is free to recognise degrees of harm and it may confine its restrictions to those
cases where the need is deemed to be the clearest [1.2] and further, there is a rational nexus for
reducing the stay period of Ralivs and Tsalivs. [1.3] and for excluding Galivs from the benefit of
the impugned legislation and the same is religion neutral. [1.4]
1.1.That the legislature may create a deeming provision of the nature that has been created.
8. The Parliament is fully competent to enact a legal fiction. In the present case the Parliament has
done precisely that; it has enacted a legal fiction, where a set of persons are deemed to be “not
illegal migrants”. It is well settled that a deeming provision is an admission of the non- existence
of the fact deemed. The Legislature is quite competent to enact a deeming provision for the
purpose of assuming the existence of a fact which does not really exist.17
9. In the present case, it must be kept in mind, that the mere admission that certain persons are
deemed not to be illegal migrants does not entitle them to citizenship, but merely creates an
opportunity for them to apply under the Standard Operating Procedure, 2011, for the purposes of
being considered for naturalization, where they have to establish the fact of religious persecution
before the Tribunal.
10. Deeming provisions have to been held to means that the Courts must assume that such a state of
affairs exists as real, and should imagine as real the consequences and incidents which inevitably
flow there from, and give effect to the same. The deeming provision may be intended to enlarge
the meaning of a particular word or to include matters which otherwise may or may not fall
within the main provision.
15
Saurabh Chaudri v Union of India (2003) 11SCC 146.
16
Sakhawant Ali v State of Orissa AIR 1955 SC166.
17
J.K. Cotton Spinning and Weaving Mills Ltd. and Anr v. Union of India, (1987) Supp 1 SCC 350.

1.1.That the Legislature is free to recognize degrees of harm and it may confine its restrictions
to those cases where the need is deemed to be the clearest.
11. The rule of equality or equal protection does not require that a State must choose between
attacking every aspect of a problem or not attacking the problem at all. So long as the line drawn,
by the State is rationally supportable, the Courts will not interpose their judgment as to the
appropriate stopping point. A statute is not invalid because it might have gone further than it did,
since the legislature need not strike at all evils at the same time and may address itself to the
phase of the problem which seemed most acute to the legislative mind.18
12. Surrounding circumstances can be taken into consideration in support of the constitutionality of
the law which is otherwise hostile or discriminatory in nature, but the circumstances must be
such as to justify the discriminatory treatment or the classification, sub-serving the object sought
to be achieved. Mere apprehension of the order being used against some persons is no ground to
hold it illegal or unconstitutional particularly when its legality or constitutionality has not been
challenged.19 In the present case, there is a clear nexus between the classes included in the
Amendment Act and those excluded. The same being that a class of them belongs to a category
of religiously persecuted minorities whereas the Galivs are a religious majority. By the process
of classification, the State has the power of determining who should be regarded as a class for the
purposes of legislation and in relation to law enacted on a particular subject.
13. The power, to some degree is likely to produce some inequality but if a law deals with liberties
of a number of individuals or well-defined classes, it is not open of the charge of denial of equal
protection on the ground that has no application to other persons. Classification, thus, means
segregation in classes which have a systematic relation usually found in common properties and
characteristics. In the present case, it is submitted that persecution on the grounds of religion is
the common characteristic of the groups collated together. It postulates a rational basis and does
not mean herding together of certain persons and classes arbitrarily.20
18
Namit Sharma v Union of India, (2013) 1 SCC 745.
19
Ibid.
20
State of AP v Venkateshwara Theatre, AIR 1993 SC 1947.

14. One of the known concepts of constitutional interpretation is that the legislature cannot be
expected to carve out classification which may be scientifically perfect or logically complete or
which may satisfy the expectations of all concerned. The Courts would respect the classification
dictated by the wisdom of the Legislature and shall interfere only on being convinced that the
classification would result in pronounced inequality or palpable arbitrariness tested on the
touchstone of Article 14 of the Constitution.21
1.2.That there is a rational nexus for reducing the period of stay for Ralivs and Tsalivs
15. Article 14 entails equality in the substantive as well as the procedural aspects of the law. When a
law is challenged as violating Article 14, it is necessary in the first place to ascertain the policy
underlying the statute and the object intended to be achieved by it. Having ascertained the policy
and the object of the Act, the Court has to apply a dual test in examining the validity, the test
being, whether the classification is rational and based upon an intelligible differentia which
distinguished persons or things that are grouped together from others that are left out of the
group, and whether the basis of differentiation has any rational nexus or relation with its avowed
policy and objects.
16. In the present case, the rational for reducing the period of stay of the Ralivs and Tsalivs from the
States of Mylta and Gatka, is as they ordinarily would have qualified as persons of Indian origin
and be eligible for application under Section 5 of the Citizenship Act. It was due to their escape
in haste where their inability to carry documents was prejudicing them, which has been intended
to be remedied by the Legislature in the present case. Thus, the law has clear nexus to the object
sought to be achieved.
17. In DP Joshi, the courts stated “A concession given to the residents of the State in the matter of
fees is obviously calculated to serve that end, as presumably some of them might, after passing
out of the College, settle down as doctors and serve the needs of the locality. Thus, it is a valid
concession with the object based on the expectation that they’re more likely to settle.”22
21
Ibid.
22
DP Joshi v State of Madhya Pradesh, AIR 1954 SC 334.

1.3.That there is a rational nexus for excluding Galivs from the benefit of the impugned
legislation and the same is religion neutral
18. Treating un-equals as equals would be a violation of Article 14. This arises from a lack of
classification, when a classification was called for.23 Thus including the Galivs from Mylta and
Gatka in the present case would lead to this violation under Article 14, where classes that are
patently different are being equated for the purposes of a law.
19. The rule of equality or equal protection does not require that a State must choose between
attacking every aspect of a problem or not attacking the problem at all, and particularly with
respect to social welfare programme. So long as the line drawn, by the State is rationally
supportable, the Courts will not interpose their judgment as to the appropriate stopping point. A
statute is not invalid because it might have gone further than it did, since the legislature need not
strike at all evils at the same time and may address itself to the phase of the problem which
seemed most acute to the legislative mind.
20. It is true that Article 14 enjoins that the people similarly situated should be treated similarly but
what amount of dissimilarity would make the people disentitle to be treated equally is rather a
vexed question. A Legislature, which has to deal with diverse problems arising out of an infinite
variety of human relations must of necessity, have the power of making special laws, to attain
particular objects; and for that purpose, it must have large powers of selection or classification of
persons and things upon which such laws are to operate. Mere differentiation or inequality of
treatment does not 'per se' amount to discrimination within the inhibition of the equal protection
clause.24
2. THE DOCTRINE OF BASIC STRUCTURE IS NOT APPLICABLE IN THE PRESENT CASE AND THE
IMPUGNED ACT DOES NOT VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION
21. The Basic structure doctrine was first mentioned by Justice Mudholkar, in his dissent in Sajjan
Singh Case,25 where he observed that the Preamble is in a way an epitome of the basic features
of the Constitution, which the Constituent Assembly would have wanted to keep unaltered and
23
Jogindernath v Union of India, (1975) 3 SCC 459.
24
Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34
25
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

amending the basic features could be more than just an amendment, almost equivalent to
rewriting that part of the Constitution itself.26 Later in the Kesavananda Bharti case, the court
held that the constituent power of the parliament under Article 368 has an implied limitation that
it cannot abrogate certain basic features of the Constituent of Pochinki.27
22. The judges listed several features as part of basic structure of the Constitution including, the
sovereignty of India, The democratic character of the polity, the unity of the country, the
supremacy of the constitution, a republican and democratic form of government, the secular
character of the Constitution, maintenance of the separation of powers, the federal character of
the Constitution.28 On the test of violation of the doctrine the court uses the ‘damage or destroy’
and ‘identity change’ tests to scrutinize the challenged constitutional amendment. The question
of identity will arise only when there is a change in the form, character and content of the
Constitution’.29 It is submitted that the doctrine of basic structure though evolved in context of
constitutional amendment is applicable to the impugned act [2.1] and further the impugned act
violates the basic feature of the federalism under the Constitution of Pochinki. [2.2]
2.1 That the doctrine of basic structure is not applicable on the impugned legislation.
23. It is submitted that the doctrine of basic structure is not applicable on the impugned legislation as
there is a clear distinction between the constituent power and the legislative power, and hence the
limitation on one power cannot be used to limit the other power, [2.1.1] the basic structure
doctrine has developed in the context of constitutional amendment, [2.1.2] and the legislative
power of the parliament cannot be subjected to such highly abstract rules without clear fixed
boundaries. [2.1.3]
26
Ibid.
27
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1413.
28
Ibid.
29
Ganpatrao v. Union of India, AIR 1993 SC 1267; Bhim Singh v. Union of India, AIR 1985 SC 1650.

1. 2.1.1 There is a clear distinction between the constituent power

and the legislative power, and hence the limitation on one power
cannot be used to limit the other power.
24. The 24th Amendment to the constitution of the Pochinki was enacted to overrule the proportion
made under the Golaknath case30, that both ordinary legislative acts, and constitutional
amendments are laws and are hence subject to Article 13.31 In the subsequent judgement of
Keshwanand Bharti, the Golaknath case32 was overruled, and the amendment was held to be
valid.33 Thus, a clear distinction between the constituent power, and the legislative power has
been recognized. Further, Article 368 (1) of the Constitution, expressly provides the term
“constituent power”, as inserted by the 24th Amendment, as the source of the power to amend the
constitution,34 which is not subject to Article 1335. The source of the legislative power of the
parliament, is provided under Article 245, which is “subject to the other parts of the
constitution.”36
25. As held in the Keshwanand Bharti case, the parliament in exercise of its constituent power can
amend any part of the constitution subject to the limitation that it does not abridges or abrogates
the basic structure.37 On the other hand, Constitution provides for two limitation on the exercises
of the legislative power, firstly the test of legislative competency, and secondly the test under
Article 13.38 The basic structure forms part of neither of the two limitation. It was pointed out by
Chandrachud J. in the Indira Gandhi Election case, holding that the doctrine of basic structure
cannot be applied on the ordinary laws held that “There is no paradox, because certain
limitations operate upon the higher power for the reason that it is a higher power. A
constitutional amendment has to be passed by a special majority, and certain such amendments
30
Golak Nath v. State of Punjab, AIR 1967 SC 762.
31
The Constitution (Twenty-Fourth Amendment) Act 1971.
32
Supra 29.
33
Supra 26.
34
Art. 368(1), Constitution of Pochinki,.
35
Art. 368(4), Constitution of Pochinki.
36
Art. 245(1), Constitution of Pochinki..
37
Supra 26.
38
Art 245(1) r/w Art. 13, Constitution of Pochinki.

have to be ratified by the legislatures of not less than one-half of the States as provided
by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers,
though species of the same genus, operate in different fields and are therefore subject to different
limitations." In the same judgement, A. N. Ray, J. said that “It has to be appreciated at the
threshold that the contention that legislative measures are subject to restrictions of the theory of
basic structures or basic features is to equate legislative measures with constitution
amendment.”39
26. Therefore, it is submitted that the constitution recognizes a clear distinction between the
constituent power, and the legislative power in terms of its nature, source, and the limitation, and
therefore the basic structure doctrine which is a limitation of the exercise of the constituent
power cannot be applied to limit the legislative power of the parliament.40
2. 2.1.2 The basic structure doctrine has developed in the context of constitutional
amendment.
27. Supreme Court in the Keshwanand Bharti Case, held that that parliament has power to amend
the constitution provided it does not alter the basic structure or framework of the constitution. It
was stated that every power has limitations and similarly the power to amend the constitution has
implied limitations which are the basic features of the constitution.41 It finally settled the long
going dispute whether the amendments can be subjected to the test of the fundamental rights,
similar to the ordinary laws. The application of the doctrine on the ordinary legislative acts was
however clearly rejected.42 It is submitted that the context of origin of the doctrine of basic
structure is in relation to restrict the constituent power of the parliament and hence any
application of it on ordinary laws would be de-contextualization of the doctrine.
39
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
40
Kuldip Nayar v Union of India AIR 2006 SC 3127
41
Supra 26.
42
Kuldip Nayar v. Union of India, AIR 2006 SC 3127.

3. 2.1.3 The legislative power of the parliament cannot be subjected

to such highly abstract rules without clear fixed boundaries.
28. The Keshwanand Bharti Case although propounded the basic structure doctrine, however did
not clearly provide any exhaustive list of features that will constitute the basic structure, leaving
to the further judicial pronouncement.43 In the Keshwanand Bharti Case different judges
formulated different features as part of the basic structure doctrine including supremacy of the
constitution, republican and democratic form of government, separation of powers between the
legislature, executive, democratic character of the polity, unity of the country etc.44 The standard
of review of doctrine has also differed depending on the case before the court.45 Further, what
principle constitute the basic structure and it’s components also depends on the judicial
interpretation.46
29. The Parliament frames laws on diverse areas with different objective and hence need to be
guided by the express constitutional limitation.47 It is submitted that in absence of any working
rules, and entire dependence on judicial discretion in determining the basic features that the
parliamentary act that deals with diverse subjects and situations cannot be subjected to abstract
principles without any clear boundaries, depending entirely on the judicial extraction.
2.2 That the impugned act is not in violation of basic structure of the constitution of Pochinki
30. The types of equality which our democratic republic guarantees are all subsumed under specific
articles of the Constitution like Articles 14, 15, 16, 17, 25, etc.48 and there is no other principle of
equality which is an essential feature of our democratic policy.
31. As held by Justice Krishna Iyer, in Bhim Singh Ji’s case, violation of the principle of equality
which amounts to violation of the basic structure is not a mere violation of Article 14 but a
shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a
43
Supra 26.
44
Ibid.
45
Dr. Ashok Dhamija’s ‘Need to Amend a Constitution and Doctrine of Basic Features’ published by Wadhwa
Nagpur, First Edition, revises 2007, p.341.
46
Sudhir Krishnaswamy, Democracy and Constitutionalism in India, 75, (1st ed, 2010).
47
Chintaman Rao v. State of MP, AIR 1951 SC 118.
48
M. Nagaraj v Union of India, (2006) 8 SCC 212.

legislation does go that far it shakes the democratic, foundation and must suffer the death
penalty.49 Justice Chandrachud in Indira Gandhi’s case, held that apart from Article 14, there is
no principle of equality which is a basic structure of the Constitution and that it is not a
chameleon like concept which changes its colour with the nature of the subject-matter to which it
is applied.50
32. The basic structure doctrine is rooted in the Constitution and not like “a twinkling star up above
the Constitution.”51 To be a basic structure, it must be a terrestrial concept having its habitat
within the four corners of the Constitution. Thus, if the petitioners have not established the
violation of Article 14 or Article 25, they cannot establish the violation of such principles as
relating to the Constitution which deal with equality or secular character of the Constitution.52
33. This leaves us with the question of the federal aspect of the Constitution. In order to be violative
of the principle of federalism, the court must judge whether the impugned law is violating the
scheme of federalism as embodied in the Constitution of Pochinki.53 There are special provisions
relating to the State of Kameshki in Article 371-B, 244, the Sixth Schedule and Article 275 of
the Constitution which deal with Assam and maintain the federal balance, therefore, it is
submitted that even if to the impugned legislation, the doctrine of basic structure applies, the
same is not violating the basic features of the Constitution of Pochinki.
3. THE PRINCIPLES OF INTERNATIONAL LAW ARE APPLICABLE AND THE IMPUGNED ACT
VIOLATES THE OBLIGATIONS OF STATE OF POCHINKI UNDER THE INTERNATIONAL LAW
34. It is submitted that the Supreme Court of Pochinki does not have jurisdiction on the matters
relating to international law, [3.1] and in arguendo, the impugned act is not in violation of the
international law, [3.2] and also the Refugee Convention, and the policy of non-refoulment. [3.3]
3.1 That the Supreme Court of Pochinki does not have jurisdiction on the international law
35. It is submitted that the Supreme Court of Pochinki does not have jurisdiction on the matters
relating to international law as any treaty obligation can be enforced in State of Pochinki only
49
Bhim Singh Ji v Union of India, AIR 1981 SC 234.
50
Indira Gandhi v Raj Narain and Ors., AIR 1975 SC 2299.
51
Ibid.
52
L Chandra Kumar v Union of India, AIR 1997 SC 1125.
53
Ibid.

when it is incorporated in the law by the parliament, [3.1.1] and further Supreme Court is not the
correct forum for examining the violation of international law [3.1.2].
2.1.1. That any treaty obligation can be binding on State of Pochinki only when it is
incorporated in the law by the parliament.
36. It is submitted that any treaty obligation is binding only when it is incorporated in the law by the
parliament, as State of Pochinki follows the dualism model [a], and the implementation of the
international obligations has been done by the Supreme Court, only when there was a void in
domestic law, which is not true in the present case [b].
a. State of Pochinki follows the model of Dualism.

37. The State of Pochinki in relation to the International law follows the model of dualism.54
According to the dualism model, the international and domestic law are separate legal orders,
and hence to implement an international rule, a domestic legislation has to be enacted so that the
international rule can be made applicable.55 For the enactment and implementation of such
legislation, all the powers have been expressly conferred on the Union Government. 56 Further,
Article 253 as well confers exclusive power only on the parliament to make laws for
implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association, or other body.57 Therefore, it is
submitted that the State of Pochinki has the exclusive power to enact laws relating to
international obligations and it cannot be bound by any treaty obligation unless it is incorporated
in the law by the parliament.
38. In the present case, State of Pochinki is a party neither to the Convention Relating to the Status of
Refugees, 1951 nor to its Protocol Relating to the Status of Refugees, 1967 and hence the
obligations contained therein are not applicable to State of Pochinki58 Further, State of Pochinki
has not ratified the International Convention on Protection of All Persons against Enforced
54
A.K. Ganguli, Interface between International Law and Municipal Law: Role of the Indian Judiciary, India and
International Law 13 (Bimal N. Patel Ed., Volume 2, 2008); Bhavesh Jayanti Lakhani v. State of Maharashtra
(2010) 1 SCC 47; State of West Bengal v. Jugal Kishore More AIR 1969 SC 1179; Xavier v. Canara Bank Ltd.,
1969 KLT 927; P. Geetha v. Kerala Livestock Development Board Ltd, (2015) 1 KLJ 494.
55
Ian Brownlie, Principles of Public International Law (OUP, 6th Ed, 2003) at pp 31-32.
56
Entry 14, Schedule VII r/w Art. 246, Constitution of Pochinki.
57
Art 253, Constitution of Pochinki.
58
Joint Committee on Citizenship, Lok Sabha, The Report on Citizenship (Amendment) Bill, 2016 4, 10

Disappearances and Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and, therefore, do not bind the State of Pochinki.59
b. That the implementation of the international obligation by the Supreme Court has been
done only when there is a void in the domestic law.
39. Supreme Court has in several judgement has ordered for the implementation of the obligation
under the international conventions, however these were the instances where there was a clear
void in the municipal laws.60 In the present case, it is submitted that there is no void with respect
to the laws relating to the prevention of religious discrimination, and protection of minority, and
indigenous people.61 Further, there is existing domestic policy as Standard of Procedure to
determine the status of the refugees.62 Also, any such municipal law shall prevails over the
international law, in case of any conflict between a municipal law and international law.63
40. Further, in application of the international law in interpreting the obligations of the state, the
approach of Supreme Court has neither been uniform, nor any clear standard has been
established.64 It has also been widely criticized, as usurpation of the legislative function by
Judiciary.65 Therefore, it is submitted that Court must primarily determine the obligations,
arising out of the domestic legislations, and above case precedents must be considered limited to
their factual scenario.
59
Ibid.
60
Vishakha v. State of Rajasthan, (1997) 6 SCC 241; Vellore Citizens Welfare Forum v. Union of India, (1996) 5
SCC 647; National Legal Service Authority v Union of India, (2014) 5 SCC 438; Habib Al Qutaifi v Union of
India, 1999 CriLJ 919.
61
Art 29, Constitution of Pochinki; Art 14 r/w Art 15, Constitution of Pochinki.
62
Standard Operating Procedure, 2011.
63
People's Union of Civil Liberties vs. Union of India AIR 1997 SC 568; National Legal Service Authority v Union
of India, (2014) 5 SCC 438
64
Lavanya Rajmani, International Law and Constitutional Schema, Oxford Handbook on Indian Constitution, (OUP
2016); Justice S.B Sinha, Constitutional Challenges in the 21st Century, 21 (1) NLSI Rev 117 (2009).
65
Id; Regina v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 (HL).

4. 3.1.2 Supreme Court is not the correct forum for examining violation of international
law
41. The Constitution of Pochinki provides for only three kinds of jurisdiction (i) Original
Jurisdiction66, (ii) Appellate Jurisdiction67, and (iii) Advisory Jurisdiction68 to the Supreme Court
of the Pochinki and therefore such jurisdiction does not extend on the matters relating to the
violation of the international law. The jurisdiction and the forum in case of violation of a treaty
obligation is mostly determined by the convention or the treaty itself.69 Therefore, it is submitted
that the correct forum for the violation of the treaty obligation is not the Supreme Court of
Pochinki but the forum as are prescribed under the different treaties.
3.2 In Arguendo, that the impugned act does not violate international law for the prevention of
religious discrimination, and the protection of the minority and the indigenous people.
42. It is submitted that the impugned act does not violate the international law for the prevention of
religious discrimination, [3.2.1] and protection of the minorities, and the indigenous people.
[3.2.2]
5. 3.2.1 Violation of convention relating to the prevention of religious discrimination.
43. In the International law, it is a well-established principle that a State has a permanent sovereign
right to determine its jurisdiction, and the persons who shall be its nationals.70 It was opined by
the International Court of Justice that “in the present state of international law, questions of
nationality are within this reserved domain of a nation”71 and “is a matter to be decided by the
domestic laws.”72 The exception that have been recognized are only limited to the few situation
of diplomatic protection, commission of criminal or civil wrong, and situations of war.73
66
67
Art 132 - 134, Constitution of Pochinki.
68
69
M. Akehurst, Jurisdiction in International Law, 46 British Yearbook of International Law, 1972, p. 160; Modi
Entertainment Network & Ans. V. W.S.G. Cricket Pte. Ltd., (2003) 4 SCC 341, p 11.
70
Ian Brownlie, Principles of Public International Law (8th ed, Oxford University Press 2012) 509
71
Nationality Decrees Issued in Tunis and Morocco (France v United Kingdom), Advisory Opinion (1923) PCIJ
Series B, No 4.
72
Nottebohm, (Liechtenstein v Guatemala), ICJ Reports 1955 p 4, 20.
73
ILC Articles on Diplomatic Protection, GAOR, 61 st Sess, Supp No 10, A/61/10; Amera singh, Diplomatic
Protection (2008).

According to Section 8(2) of the Foreigners Act 1946, “A decision as to nationality Central
Government shall be final and shall not be called in question in any Court”74 It is submitted that
the state practice of the State of Pochinki clearly establishes that the question of determination of
the criteria of nationality has been kept within its reserved domain75 and the impugned act is not
in violation of any of the exception recognized under the principle of the nationality in the
International law.
44. Moreover, the obligation as provided under the UDHR, ICCPR, and other declaration serve as
overarching principle, and does not provide for obligation in relation to the policy of non-
refoulment.76 The travaux preparatoires of the ICCPR also does not indicate of any such
extension to the article.77 Furthermore, under international law, differentiation can be made if the
distinction is made with a legitimate justification and is reasonable.78 The question of nationality
has been settled by the ICJ by the principle of effective link of a person that it has with the
county.79
45. It is submitted the impugned act must be seen in the context of the history of partition of
Pochinki in 1947, where the country was partitioned on the basis of religion.80 Many person
belonging to Ralvism and Tsalvism stayed backed in Gatka and Mylta on the promise of
protection of minority.81 However, the minority communities were religiously persecuted in
these nation and many of such person migrated to Pochinki who were granted citizenship. 82 The
Ralvis and Tsalvis together constituted 95% of the population of Pochinki.83 It is submitted that
74
Section 8(2) of Foreigners Act, 1946
75
Standard Operating Procedure, and Report of Refugee and India; Foreign Act Sec 8
76
As submitted by Affidavit by UOI in Sallimulah case where court allowed deportation of 7 Rohingya Victims.
77
Preparatory work of the treaty or the drafting history is used as a supplementary means of treaty interpretation, as
per art 32 of Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January
1980) 1155 UNTS 331.
78
Tarunabh Khaitan, 'Discrimination' in [2017] Max Planck Encyclopedia on Comparative Constitutional Law, para
30; Human Rights Committee, General Comment 18 (Thirty-seventh session, 1989), Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev9
(Vol I) at 195 (2008).
79
Nottebohm, (Liechtenstein v Guatemala), ICJ Reports 1955 p 4, 20;
80
Moot Proposition pp 1.
81
82
83
Moot Proposition pp 1

unlike the other refugees coming from other countries, the Ralvis and Tsalvis share an effective
historical and cultural past with Pochinki.
46. The impugned act does not automatically confer citizenship on such refugees but merely make
them eligible to apply for naturalization.84 Also, the State of Pochinki has adopted Standard
Operating Procedure in 2011, for the determination of question of refugee on the basis of which
citizenship can be granted to all the eligible refugees. 85 Therefore, it is submitted that in light of
the historical and demographic context of State of Pochinki, the distinction created has a
legitimate justification, and is reasonable, and hence does not amount to religious discrimination
under the international law.
6. 3.2.2. Violation of Convention relating to the protection of the

minorities and the Indigenous People.
47. Article 27 of the ICCPR provides rights to an individual to access the cultural rights of its
community86, and it is the denial of such enjoyment of their own culture, practice of their own
religion, or use of their own language that would amount to violation of the provision. Similar to
ICCPR the approach adopted under the Article 15 of ICESCR is also individualistic in nature. 87
Further, the 1992 United Nations Declaration on the Rights of Persons belonging to National or
Ethnic, Religious and Linguistic Minority also provides for the individualistic rights of person in
a community.88 As evident from the title, the legal subjects of the declaration, are individual
members of the minority group rather than the group as such.
48. Further, the UN Commission on Prevention of discrimination and Protection of Minority in their
report, popularly known as, Cobo Report, on the ILO Convention on the Indigenous and Tribal
Populations Convention, 1957 provided that the said convention focuses on the integration of the
indigenous community with the other people rather than the self-governance.89 The ILO
Indigenous and Tribal Peoples Convention, 1989 was formed on the recommendation on the
Cobo Report, however similar to the ICCPR provide for the individualistic right rather than the
84
Joint Committee on Citizenship, Lok Sabha, The Report on Citizenship (Amendment) Bill, 2016, 39.
85
Ibid at 36.
86
Art 27, International Covenant on Civil and Political Right, 1966.
87
Art. 15, International Covenant on Economic, Social, and Cultural Right, 1966.
88
Art. 2, United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and
Linguistic Minority, 1992.
89
Martinez Cobo Study, United Nations for Indigenous People, E/CN.4/Sub.2/1983/21.

group rights of the indigenous people.90 The obligation under ILO Convention 107 and UNDRIP
makes it mandatory for the State of Pochinki to takes steps for assimilation of indigenous
communities91 along with preservation of their indigenous communities and hence a balanced
approach against a total exclusionary approach has been adopted by the State of Pochinki.
49. On the issue of violation of Article 27 of ICCPR in relation to the indigenous people, it was
pointed out by the Human Rights Committee that any competing activity that has substantially
negative impact92 and effectively destroys the chance of engagement of 93
tribal in cultural
activities that would amount to violation of Article 27 of the ICCPR. However, measures that
have a certain limited impact on the way of life of person belonging to such community will not
amount to denial of right under Article 27.94 It is thus evident that the standard for violation of
the Article is high, and it is not a mere impact, but effective destruction that amount to violation
of the convention.
50. It is submitted that the impugned act does not prohibit any individual from the access of its
cultural rights. The tribal regions are located in the northern part of the State of Kamakshi,
whereas the settlement is mostly limited to the southern region of the State and moreover the
refugees will be subject to the re-settlement policy of the government. Furthermore, in contrast to
the above individualistic obligation, State of Pochinki has incorporated Sixth Schedule in its
Constitution which provides for regime of collective rights of the indigenous people, considered
to be more progressive under the international law. Therefore, an effective system for the
protection of indigenous right and prevention of any destruction in consonance with the
international obligation already exists in State of Pochinki which is unaffected by the impugned
act and therefore it is submitted that the impugned act does not violate any international
obligation of the State of Pochinki.
90
Mattias Ahren, ‘Indegenous Peoples’ Status in the International Legal System’ (Oxford University Press, 2016).
91
Art. 2, ILO Convention on Indigenous and Tribal Populations, 1957; Art. 8, United Nations Declaration on Rights
of Indigenous People, 2007.
92
Ibid.
93
Supra 90.
94
Ibid.

3.3 That the impugned act does not violate the obligations under the Refugee Convention and
is in consonance with the policy of Non-refoulment
51. It is submitted that the impugned act does not violate the obligations under the Refugee
Convention and is in consonance with the policy of Non-refoulement, as the Refugee Convention
cannot be adhered to in determining the obligation of the State of Pochinki, [3.3.1] and in
arguendo, the impugned act does not violate the provisions of the Refugee Convention, [3.3.2]
and further the impugned act is in consonance with the policy of non-refoulement read with
peremptory norm for prevention of torture. [3.3.3]
7. 3.3.1 The Refugee Convention cannot be adhered to in determining

the obligation of the State of Pochinki
52. It is submitted that the provisions of the Refugee Convention and the subsequent Protocol cannot
be relied upon as the State of Pochinki is not a signatory to either of them.95 Further, a bare
perusal to Article 1 that provides the definition of a refugee,96 specifically part A(2) and B(1)
shows that the definitions regarding the status of refugees take a starkly euro-centric approach
instead of holding a globally inclusive point of view.97 It states that ‘For the purposes of this
Convention, the words, events occurring before January 1951 shall be understood to mean either
events occurring in Europe or events occurring in Europe or elsewhere’.98 Further, the limitation
put down therein restricts the definition to only consequences of ‘events taking place before
January 1951’.99 The State of Pochinki and its surrounding sub-continent region constitute a
unique geopolitical area, with highly diverse sections of population that have had a colonial
history.100 Furthermore, the region has witnessed territorial displacement of people due to
conflicts post-1951 as well. Hence, it is submitted that the principles of a Refugee convention
relying on the euro-centric approach cannot be adhered to in determining the obligation of the
State of Pochinki.
95
Ministry of Home Affairs - Lok Sabha, Unstarred Question no. 2623, 2 nd August 2016.
96
Art. 1, Convention Relating to the Status of Refugees, 1951.
97
Ibid.
98
Supra 95.
99
Ibid
100
Paragraph 1, Moot Proposition.

8. 3.3.2 In Arguendo, the impugned act does not violate the provisions of the Refugee
Convention
53. Article 3 of the Convention provides that in conferring the rights mentioned under the
convention upon the refugees, there should not be any discrimination among the refugees on
account of race, religion or country of origin.101 Further, the travaux preparatoires of the
convention, indicate that the principle of non-discrimination is applicable only with respect to the
rights that are explicitly conferred under the convention itself.102 The Refugee Convention and its
Protocol do not confer uniform eligibility for citizenship as a right, to the refugees. The rights as
mentioned in the convention have been equally granted to the refugee by the State of Pochinki.
Therefore, it is submitted that the impugned act does not discriminate among refuges with regard
to rights and benefits that are provided by the Convention and hence does not violate Article 3 of
the Refugee Convention and is in consonance with the provisions of the Refugee Convention.
54. In arguendo, it is submitted that prohibiting discrimination does not mean that reasonable
distinctions cannot be made with a legitimate objective.103 The distinction created by the
impugned act has been created with a legitimate objective and relates only to the procedural
rights. Considering the demographic context and historical relationship, of State of Pochinki,
with the religiously persecuted Ralivs and Tsalivs refugees, the distinction created for protection
of such minorities has a legitimate objective. Further, such distinction is reasonable. It is
submitted that the impact of the impugned act is essentially that certain procedural relaxations to
the refuges has been accorded in terms of documentary, and fee requirement. Similar to the
refugees under Standard Operating Procedure, even after the enactment of the impugned Act, the
beneficiaries seeking citizenship will have to establish that they are religiously persecuted,104 and
have to fulfill the procedural requirements under Sections (i) and (ii) of the Standard of
Procedure. Hence, the distinction created is merely with regard to the procedure.
101
Art 3, Convention Relating to the Status of Refugees, 1951.
102
Commentary on the Refugee Convention, 1951.
103
Tarunabh Khaitan, 'Discrimination,' Max Planck Encyclopedia on Comparative Constitutional Law, p.30.
104
Joint Committee on Citizenship, Lok Sabha, The Report on Citizenship (Amendment) Bill, 2016.

9. 3.3.3 The impugned act is in consonance with the policy of non-

refoulment read with preemptory norm for prevention of torture
55. It is a well-settled principle under the International Law that the principle of Non-Refoulement
falls within the purview of Customary International Law.105 While the constituents of Customary
International Law are ‘general practices that are accepted as law’ and hold considerable
weightage, some of these customs are so significant that they fall in the category of ‘jus
cogens’.106 Jus cogens are the peremptory norms, from which absolutely no derogation is
permitted107 and any law in violation of these norms is to be considered null and void.108
Prevention against torture falls within such category of Jus Cogens, and hence is a peremptory
norm.109 Article 3 of the Convention against Torture provides that the ‘refoulement or extradition
of a person to a state where there are substantial grounds to believe he will be tortured’ is
strictly prohibited.110 Therefore, this aspect of the policy of non-refoulement, which prohibit
deportation, when there is a threat of torture comes under the purview of Jus Cogens and hence
its compliance becomes obligatory to the State of Pochinki. Further, the Law Commission of
Pochinki in its 273rd report has also retreated it and recommended the ratification of the
Convention against Torture.111
56. The Non-Galivs are facing religious persecution which is a form of torture, in the countries of
Gatka and Mylta.112 Preceding the enactment of the impugned act, such people entering would be
treated according to the provisions of the Foreigners Act, 1948 and consequently have to
105
Dongh Lian Kham v. Union of India WP (Crl.) No. 1884/2015.
106
M. Shaw, Sources, Principles of International Law, 258, (7 th ed,Cambridge University Press, 2014).
107
M. Bassiouni, "International Crimes: jus cogens and Obligatio Erga Omnes", Law & Contemporary Problems,
1998, 59: 63–74
108
Art. 53, Vienna convention on Laws of Treaties 1969
109
Supra 101.
110
Art. 3, Convention against Torture, 1984
111
273rd Law Commission of India Report, Ratification of Torture Convention, 8 (2002).
112
Moot Proposition, pp 1.

deported back to their country of origin.113 Therefore, in light of such peremptory norm, it is
submitted that the enactment of impugned act was required in compliance with the obligations of
State of Pochinki under the International Law.
113
S. 8(2), Foreigner Act, 1948.

15. PRAYER
In light of the issues raised, arguments advanced and authorities cited, it is humbly said that this
Honourable Court may be pleased to hold, adjudge and declare that:
1. The Citizenship (Amendment) Act, 2016 is not in violation of Article 14 of the Constitution
of Pochinki.
2. The Citizenship (Amendment) Act, 2016 is not in violation basic feature of Federalism under
the Constitution of Pochinki.
3. The Citizenship (Amendment) Act, 2016 is not in violation of the international obligations of
the State of Pochinki.
Respectfully Submitted
Counsels on Behalf of Respondents

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BEFORE THE HONORABLE SUPREME COURT OF POCHINKI

CASE CONCERNING THE CONSTITUTIONAL VALIDITY OF CITIZENSHIP (AMENDMENT) ACT 2017

ALL KAMESHKI STUDENT UNION

THE UNION OF INDIA

CASE NO. __/2019

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

JUDICIAL ACADEMY, ASSAM

INDEX OF AUTHORITIES III

STATEMENT OF JURISDICTION VII

STATEMENT OF ISSUES VIII

12 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

13 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

14 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

Art. 16, The Constitution of Pochinki 1

15 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

16 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

17 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

18 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

10. STATEMENT OF FACTS

1. PARTIES TO THE DISPUTE:

The indigenous people of Kameshki oppose this Amendment as it is gives opportunity to

19 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

12. SUMMARY OF ARGUMENTS

-VIOLATION OF FUNDAMENTAL RIGHT-

-VIOLATION OF BASIC STRUCTURE-

-VIOLATION OF INTERNATIONAL LAW-

20 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

14. ARGUMENTS ADVANCED

21 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

without more, incur condemnation as violating a specific constitutional prohibition unless it is

4. In a cautionary note, Justice Krishna Iyer, has noted: “a classification in order to be

5. There must be presumption of Constitutionality of a law and it must be presumed that a

22 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

23 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

24 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

25 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

26 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

27 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

1. 2.1.1 There is a clear distinction between the constituent power

28 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

29 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

3. 2.1.3 The legislative power of the parliament cannot be subjected

30 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

31 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

a. State of Pochinki follows the model of Dualism.

32 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

33 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

5. 3.2.1 Violation of convention relating to the prevention of religious discrimination.

34 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

35 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

6. 3.2.2. Violation of Convention relating to the protection of the

36 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

37 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

7. 3.3.1 The Refugee Convention cannot be adhered to in determining

38 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

39 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

9. 3.3.3 The impugned act is in consonance with the policy of non-

40 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

41 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

Counsels on Behalf of Respondents

42 MEMORANDUM ON BEHALF OF THE RESPONDENT STATE

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